The applicant for leave to appeal (the Defendant) was originally charged with one count of Trafficking in Dangerous Drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, Laws of Hong Kong.  The Defendant pleaded not guilty to the charge, and the trial was before District Judge Maggie Poon.
上訴許可申請人（即被告）原被控一項販運危險藥物的罪名，違反香港法例第134章《危險藥物條例》第4(1)(a)及(3)條。被告否認控罪，案件在區域法官潘敏琦席前審訊。

After three days’ hearing, the Prosecution amended the charge to one of Possession of Dangerous Drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance.  The Defendant pleaded guilty to the charge and agreed to the facts of the case.  The agreed facts stated that at about 9 a.m. on 13 November, 1998, that is, at the time of the charged incident, the police searched the Defendant and found on him a total of 137 packets of white-coloured powder.  After laboratory analysis, the powder was found to be 55.11 grams of a mixture containing 48.32 grams of heroin hydrochloride.
審訊進行了三天後，控方將控罪修改為管有危險藥物，違反該《危險藥物條例》第8(1)(a)及(2)條。被告承認控罪及同意案情。該同意案情指出，1998年11月13日上午9時左右，即案發當時，警方人員在被告身上搜出共137小包白色的粉末，經化驗後，證實該些粉末是55.11克的混合物，內含48.32克的海洛英鹽酸。

After hearing the mitigation put forward by the lawyer for the Defendant, the judge sentenced the Defendant to 3 years’ imprisonment.
經聆聽代表被告的律師的求情陳詞後，法官判處被告入獄3年。

The Defendant considers the sentence to be too heavy and has therefore filed an application for leave to appeal against sentence.
被告認為刑罰太重，故提出上訴許可申請，要求減刑。

In her Reasons for Sentence, the trial judge pointed out that she had considered several precedents about the sentencing for possession of heroin and also the latent risk factor.  She had taken 4 1/2 years’ imprisonment as the starting point, and with a 1/3 reduction for the Defendant’s plea of guilty, sentenced the Defendant to 3 years’ imprisonment.
在判刑理由書中，原審法官指出她曾考慮數件案例，都是有關管有海洛英罪行量刑的，而亦考慮到潛在風險的因素，以4年半作為量刑起點，於扣減因被告認罪的三分一後，判處被告入獄3年。

The judge said in her Reasons for Sentence:
在判刑理由書中，法官曾說：

“The more packets the dangerous drugs are packed into, the higher the risk they may end up in other people’s hands.  Therefore, the Court must take note of the latent risk factor”;
“毒品被包裝成小包越多，它們落入其他人手中的風險便越大，所以法庭不得不留意存（應為“潛”）在風險因素（latent risk factor）。”；

and
和

“I do not consider taking the precedents involving ‘ice’ for reference regarding sentencing for a case about possession of heroin hydrochloride as appropriate.”
“本席認為以冰毒案例作海洛英鹽酸藏毒的量刑參考並不適合。”

Counsel for the Defendant, Mr. Wong Po Wing, submitted that these two reasons were both incorrect.  Mr. Wong pointed out that although “ice” and heroin were not the same category of dangerous drugs, the harm they would cause to the human body was similarly serious.  Therefore, Mr. Wong suggested that the precedents about sentencing for possession of “ice” should be applicable to the sentencing for possession of heroin, or at least they were worthy of reference to the court.
代表被告的王寳榮大律師提出，此兩項理由，均是錯誤的。王大律師指出，雖然冰與海洛英不是同一類毒品，但是它們對人體的傷害程度則同等嚴重。故此，王大律師提議，有關管有冰量刑的案例，應適用於有關管有海洛英的量刑，而最少也值得法庭參考。

As mentioned above, the trial judge considered it inappropriate to take the precedents involving “ice” as the sentencing reference for a case about possession of heroin hydrochloride.  In considering the sentence to be imposed on the Defendant, the trial judge cited four cases of the Court of Appeal in relation to possession of heroin hydrochloride, but she did not cite any case about sentencing involving “ice”.  She said,
如上述所言，原審法官認為以冰毒案例作海洛英鹽酸藏毒的量刑參考並不適合。原審法官援引四件上訴法庭有關管有海洛英鹽酸的案例，卻並沒有援引任何有關冰的量刑案例，以考慮被告所應被判之刑期。她說：

“In Chiu Hung Wong (1993 Crim. App. No. 39 of 1993), the two Appellants were in possession of 14.37 grams and 16.31 grams of hydrochloride respectively.  The Appellants pleaded guilty and were each sentenced to 2 years’ imprisonment.
“在趙鴻旺（譯音）(1993 Crim. App. No. 39 of 1993)一案中，兩名上訴人藏有鹽酸重量分別是14.37克以及16.31克，上訴人認罪，分別被判監兩年。

In the case of Wong Yiu Kwan (Crim. App. No. 53 of 1995), the Appellant had in his possession a total of 46 packets of dangerous drugs, weighing in total 35.39 grams and containing 14.68 grams of heroin hydrochloride.  The Appellant pleaded guilty.  The Court of Appeal considered that the proper starting point was 3 years’ imprisonment, and with a 1/3 discount in sentence, the term was one of 2 years.
在黃耀群（譯音）（Crim. App. No. 53 of 1995）的案件中，上訴人管有一共46包共重35.39克的毒品，內含海洛英鹽酸是14.68克，上訴人認罪。而上訴法庭認為量刑起點應該是3年，在給予三分之一的量刑折扣之後，判監兩年。

In the case of Lee Che Keung (Crim. App. No. 682 of 1996), the Appellant admitted to possession of 46.02 grams of dangerous drugs containing 35.23 grams of heroin hydrochloride.  Although the Court of Appeal considered that the starting point of 4 1/2 years was open to question, it opined that the term of 3 years’ imprisonment after reduction was correct.
在李志強（譯音）（Crim. App. No. 682 of 1996）的案件中，上訴人承認管有46.02克的毒品，內含海洛英鹽酸35.23克。上訴庭認為以4年半作為量刑起點雖然可以有商榷的餘地，但是扣減之後的3年刑期，上訴庭認為是正確的。

Lastly, in Chan Ching Ho (Crim. App. No. 409 of 1993), the Appellant was convicted after trial of possession of 112.5 grams of a mixture containing 62.81 grams of heroin hydrochloride.  The Court of Appeal took the view that the sentence of 3 years’ imprisonment passed by the District Court was inadequate, and the sentence was finally increased to 4 1/2 years.
最後在陳清浩（譯音）（Crim. App. No. 409 of 1993）一案中， 上訴人在聆訊之後被裁定管有112.5克混合物，內含62.81克的海洛英鹽酸，控罪罪名成立。上訴庭認為區域法院所判的3年判刑是太輕，而最後將刑期提高至4年半。

With reference to the above cases, the dangerous drugs with which the Defendant was involved in this case was 55.11 grams of a mixture containing 48.32 grams of heroin hydrochloride.  The drugs were separately packed in 137 packets.  I have considered the above precedents and the latent risk factor. I take 4 1/2 years as the starting point, and with a 1/3 reduction in sentence for the Defendant’s plea of guilty, he is sentenced to 3 years’ imprisonment.”
根據以上案件的參考，本案被告所牽涉的毒品是55.11克的混合物，內含48.32克的鹽酸海洛英。毒品分別被裝放在137小包之中，本席考慮以上的案例以及存（應為“潛”）在風險的因素， 以4年半作為量刑起點，由於被告認罪，予以三分之一的量刑扣減，判刑3年。”

Prior to the case of Chiu Hung Wong, the sentence imposed by the courts for possession of heroin hydrochloride was comparatively lenient.  However, in that case, the Court of Appeal took into account the amendment made to the Dangerous Drugs Ordinance which took effect on 26 June 1992, for the increase of the maximum penalty for breaching section 8(1)(a) and (2) of the Ordinance from a fine of $10,000 and imprisonment for 3 years to a fine of $1,000,000 and imprisonment for 7 years.  Therefore, the Court of Appeal took the view that the sentence of 2 years’ imprisonment imposed by the trial judge on the appellant was neither wrong in principle nor manifestly excessive.  In that case, the Court of Appeal also commented that the court should not ignore the latent risk, which arose from the quantity involved, that some of the dangerous drugs might be used for trafficking.
雖然在趙鴻旺之前，法庭判處管有海洛英鹽酸的刑罰較輕，但在該案中，上訴法庭考慮到自1992年6月26日起生效的《危險藥物條例》的修訂，把違反該條例第8(1)(a)和(2)條的最高刑罰由原先的一萬元罰款及監禁3年增至為一百萬元罰款及監禁7年，故上訴庭認為原審法官判處上訴人的兩年監禁刑期並無犯原則上錯誤，亦非明顯地過重。在該案中，上訴法庭亦說，法庭不應把對毒品的數量所產生的可能有部份毒品會被用作販賣用途的潛在風險，置諸不理。

The case of Chan Ching Ho involved an application made by the defendant for leave to appeal against sentence and an application made by the Attorney General to the Court of Appeal for review of the sentence imposed on the defendant.  In that case, the Court of Appeal took the view that the 62.81 grams of heroin hydrochloride involved in the case was in the most serious range covered by section 8 of the Dangerous Drugs Ordinance because the quantity was substantial.
陳清浩一案涉及被告要求減刑的上訴許可申請及律政司向上訴法庭要求覆核被告之刑期。在該案中，上訴法庭認為該案所涉之62.81克海洛英鹽酸是為《危險藥物條例》第8條所含蓋的最嚴重的一種，原因是數量太多。

When comparing the above four precedents about sentencing for possession of heroin hydrochloride, the weight of heroin hydrochloride possessed by the Defendant in this case, namely 48.32 grams, is nearest to that involved in the case of Lee Che Keung.  Therefore, on the face of it, Judge Poon cannot be criticized for having taken 4 1/2 years as the starting point and, with a 1/3 reduction for the Defendant’s plea of guilty, imposed a 3 years’ sentence.
比較以上四個有關管有海洛英鹽酸的量刑案例，本案的被告所管有的海洛英鹽酸的重量，即48.32克，與李志強者最為接近，故驟眼看來，潘法官以4年半作為量刑起點而因被告認罪扣減三分之一，判刑3年，未可厚非。

In R v Lee Siu Lung, the applicant for leave to appeal pleaded guilty to two charges: (1) possession of 48.96 grams of a mixture containing 18.28 grams of heroin hydrochloride, and (2) possession of 3.37 grams of a mixture containing 1.23 grams of heroin hydrochloride.  The trial judge sentenced the applicant to 2 years for charge (1) and 9 months for charge (2).  However, he considered that the overall starting point for the two charges should be 2 1/2 years, and with the reduction for his plea of guilty, the sentence for the applicant was 2 years.  When sentencing, the trial judge said that although the applicant claimed that the drugs found on him were for personal consumption, the judge, however, said he had no doubt that was true for some of the drugs seized from him.  The Court of Appeal opined that the remark made by the trial judge implied that some of the drugs possessed by the applicant might be for purposes other than that of self consumption, and such consideration was wrong.  The Court of Appeal considered that unless the applicant was convicted of Trafficking in Dangerous Drugs, the judge was not entitled to consider that the possessed drugs might be for purposes other than that of self consumption.  This Court is satisfied that the sentencing approach mentioned by the Court of Appeal is correct and fair.  If a defendant is charged with an offence of “possession” and not “trafficking”, it will be an error to bear “trafficking” in mind when considering sentence and that will also be unfair to the defendant.  In this case, although the Defendant was originally charged with an offence of trafficking, after three days’ hearing, the Prosecution amended the charge to one of possession instead of trafficking.  The Defendant immediately pleaded guilty to the charge and agreed the facts.  If the Defendant is dealt with on the basis of the seriousness of trafficking, it would be extremely unfair.
在女皇訴李兆龍（譯音） 一案中，上訴許可申請人承認兩項控罪：(1)管有內含18.28克海洛英鹽酸的48.96克混合物，及(2)管有1.23克海洛英鹽酸的3.37克混合物。原審法官就第(1)項控罪判處申請人兩年監禁，而就第(2)項控罪則判處他9個月監禁。但他認為兩罪之總共量刑起點應為兩年半，在因認罪而作出扣減後，得出兩年作為申請人之判刑。在量刑時，原審法官說雖然申請人聲稱在他身上找到的毒品是他自用的，但是原審法官卻說這毫無疑問是有些在他身上找到的毒品的真正用途。上訴庭認為原審法官這句話暗指申請人管有的毒品部份可能作非自用的其他用途，這樣的考慮是錯誤的。上訴法庭認為，除非申請人是被判販運毒品的罪名成立，否則法官無權考慮管有的毒品可能被用在非自用的用途。本庭認為，上訴法庭所說的量刑方法，是正確及公平的。如果被告之罪名為“管有”而非“販運”，量刑時以“販運”的性質去作考慮，就是犯錯，而對被告不公平。在本案而言，雖然原先被告是被控以販運罪名，但經三天的聆訊後，主控方面將控罪修改為管有而非販運，被告立即承認控罪及同意案情。如以販運的嚴重性而處置被告，就會極為不公平。

What Mr. Wong is not satisfied with is that the trial judge refused to take into consideration precedents about sentencing for possession of “ice”.  Mr. Wong cited the following seven recent cases about sentencing for possession of “ice”.  In R v Wu Chi Wai, the applicant for leave to appeal was convicted of trafficking in 59.39 grams of a crystalline solid containing 56.12 grams of “ice”.  The Court of Appeal (for reasons not related to this case) quashed the original conviction of trafficking and substituted for it a conviction of possession, and the sentence was varied to one of 2 years’ imprisonment.  It was because the Court of Appeal took the view that had the defendant been charged with possession from the outset instead of trafficking, he would have pleaded guilty.  When imposing the sentence of two years’ imprisonment, the Court of Appeal had also noted that the amount of drugs involved in that case, namely 56.12 grams, was greater than that for a usual case of possession, and therefore, opined that there must be a high latent risk that the drugs would fall from the unstable hands of the applicant into the hands of other persons.
王大律師所不滿者，是原審法官拒絕以有關管有冰的量刑案例作為參考。王大律師援引以下七宗近數年來有關管有冰的量刑案例。在女皇訴胡志偉（譯音） 一案中， 上訴許可申請人被判販運內含56.12克的冰的59.39克晶狀固體。上訴庭（因與本案無關的原因）推翻原判的販運罪名而代之以管有罪名，改判刑期兩年，因上訴庭認為若被告一早便被控管有而非販運罪名，他會認罪。上訴法庭所判之兩年刑期，亦有考慮到該案56.12克比通常管有案件中為重的毒品，故亦認為一定有很高的潛在風險，該毒品可能會從申請人不穩定的雙手中流入他人之手。

In R v Chan Shing Hing, the applicant for leave to appeal was charged with unlawful trafficking in 29.86 grams of “ice”.  He pleaded not guilty to the charge but was willing to plead guilty to possession.  After trial, the jury returned a verdict of not guilty of trafficking but guilty of possession.  The trial judge sentenced the applicant to 4 years’ imprisonment.  The Court of Appeal cited the above Wu Chi Wai case and considered a starting point of 3 years as being appropriate.  As the applicant was willing to plead guilty to possession, the 3 years’ imprisonment was reduced to a term of 2 years.
在女皇訴陳盛興（譯音） 一案中，上訴許可申請人被控非法販運29.86克冰，他不認罪，但卻願意承認擁有該毒品。經審訊後，陪審團判申請人販運罪名不成立而管有罪名成立。原審法官判處申請人4年監禁。上訴庭援引上述的胡志偉一案，認為合適的量刑起點應為3年，而因申請人願意承認管有罪名，故將該3年刑期減為兩年。

In HKSAR v Lam Wai Ip, the applicant for leave to appeal pleaded guilty to two charges.  The first count involved a small quantity of heroin hydrochloride and several tablets of hallucinogen.  The major charge was the second one, namely, possession of 19.68 grams of “ice”.  The trial judge sentenced the applicant to a total of 3 years and 4 months’ imprisonment.  The Court of Appeal cited the cases of Chan Shing Hing and Wu Chi Wai and considered the appropriate sentence to be 2 years’ imprisonment.
在香港特別行政區訴林偉業（譯音） 一案中，上訴許可申請人就兩項控罪作出承認。第一項控罪牽涉少量的海洛英鹽酸及數粒迷幻藥，而主要者為第二項控罪，即管有19.68克冰。原審法官判處申請人共入獄3年4個月。上訴法庭援引陳盛興及胡志偉案例，認為適當的刑期是兩年監禁。

In HKSAR v Chan Yat Sing, the applicant for leave to appeal was found guilty before a jury of possession of 95.36 grams of “ice” instead of trafficking in the drugs as alleged in the charge.  The applicant was originally willing to admit possessing those drugs, but it was because the prosecution refused to accept it that the case had to be decided by the jury.  The trial judge sentenced the applicant to 5 years’ imprisonment, but the Court of Appeal was satisfied that a sentence of 3 1/2 years would be appropriate.  At pages 2-3 of its judgment, the Court of Appeal made the following remarks:
在香港特別行政區訴陳日成（譯音） 一案中，上訴許可申請人被陪審團裁定管有95.36克冰，而非控罪所指的販運該毒品。申請人原先也願意承認管有該毒品，但是因為主控不接納，故案件須由陪審團裁決。原審法官判處申請人5年監禁。但上訴法庭認為3年半的監禁才恰當。在判案書第2-3頁中，上訴法庭有如下的說話：

“The sentencing problem when a person who has had possession of a large quantity of drugs is found guilty of simple possession only is not an easy one.  We are satisfied that the trial Judge, starting as she did, with the sentence for trafficking and then adjusting that sentence down was wrong in her approach in sentencing.  The starting point in cases such as this is the sentence that would be imposed for simple possession of a quantity of dangerous drugs a bona fide user would normally have in his possession.  This would be a year to 18 months.  That sentence then has to be enhanced because of the latent risk factor.”
“當一個人管有大量毒品而被判純粹管有罪名時，量刑的問題並非易事。我等認為，原審法官以販運的刑罰為考慮之始，而將該刑罰相應地調低是錯誤的量刑方法。此等案件的量刑起點是一個真正的用家因純粹管有一個數量的毒品而應被處的刑罰。此刑罰會是1年至18個月監禁。然後該刑罰須因潛在風險的因素而提高。”

In HKSAR v Lau Chi Chiu, the applicant for leave to appeal was found guilty after trial of possession of 63.38 grams of “ice” and not guilty of trafficking.  The trial judge cited the Chan Yat Sing case and sentenced the applicant to 3 years’ imprisonment.  The Court of Appeal accepted that the applicant had at all times during the trial been prepared to admit the charge of possession, and therefore the term of 3 years’ imprisonment imposed by the trial judge should be discounted by 1/3 for his plea.  The applicant was sentenced to 2 years’ imprisonment accordingly.  In that case, the Court of Appeal pointed out that in Chan Yat Sing, they were in error in sentencing Chan to 3 1/2 years because they had failed to take into account that Chan was prepared to plead guilty to possession at the time of trial.
在香港特別行政區訴劉志釗（譯音） 一案中，上訴許可申請人在審訊後被裁定管有63.38克冰罪名成立，而販運罪名不成立。原審法官援引陳日成案例，判處申請人入獄3年。上訴法庭接納申請人在原審時隨時願意承認管有罪名，故認為原審法官所判處之3年監禁應得認罪之三分一削減，故判處申請人兩年監禁。在該案中，上訴法庭指出，在陳日成中，他們的判處陳日成3年半刑期是錯誤的，因為他們忽略了陳日成在原審時是準備承認管有罪名的。

In HKSAR v Lai Kam Sang, the applicant for leave to appeal was originally charged with unlawful trafficking in 26.61 grams of “ice”, and he pleaded not guilty.  However, after two days’ hearing, the court accepted his plea of guilty to possession and sentenced him to 2 years and 8 months.  In that case, the Court of Appeal reiterated that when assessing the starting point, a judge should look at the accepted range of sentence for simple possession which was from one year to 18 months.  The approach to sentencing of the trial judge was that he took 2 years as the starting point for that offence of possession, and owing to the latent risk factor, he enhanced the sentence by 100% to 4 years.  As the applicant was willing to plead guilty to the charge of possession, the 4 years’ term was reduced by 1/3, and so the final term of imprisonment was 2 years and 8 months.  The Court of Appeal took the view that in respect of the 26.61 grams of “ice” involved in that case, doubling the original starting point of 2 years because of the latent risk factor was inappropriate.  The Court of Appeal considered that the starting point in sentencing for possession of those drugs should be 18 months, and another 12 months should be added for the latent risk factor.  As a result, the starting point should be 30 months.  In addition, as the applicant was willing to plead guilty to possession, the 30 months’ imprisonment was reduced by 1/3 bringing the sentence to 20 months.
在香港特別行政區訴黎錦生（譯音） 一案中，上訴許可申請人原先被控非法販運26.61克冰。他不認罪，但經兩天聆訊後，法庭接納他承認管有罪而判他入獄兩年8個月。在該案中，上訴法庭重申，當法官評估量刑起點，應該考慮通常管有罪名的可接納的刑罰是1年至18個月監禁。原審法官量刑的方法，是以兩年為該管有罪名的量刑起點，因為潛在風險的存在，他加上百分之百刑罰，使刑期起點變為4年，然後因申請人願意承認管有罪名而把該4年刑期削減三分之一，故最終是兩年8個月刑期。上訴法庭認為在該案所涉之26.61克冰的重量來說，為了潛在風險的因素而將原本的量刑起點由兩年加至雙倍，是不適當的。上訴法庭認為，管有該毒品的量刑起點應為18個月而加以潛在風險因素所應加的12個月監禁，故刑期起點應為30個月。又因申請人願意承認管有罪名，故將30個月扣減三分之一而成為20個月的刑期。

In HKSAR v Chew Sik Pok, the applicant for leave to appeal was charged with trafficking in 24.12 grams of “ice” in the Court of First Instance.  He pleaded not guilty but was found guilty before a jury.  The trial judge sentenced him to imprisonment for 7 years and 9 months.  The Court of Appeal (for reasons not related to this case) convicted him for possession of the drugs and quashed his conviction for trafficking.  In sentencing, the Court of Appeal said at pages 6-7 of its judgment as follows:
在香港特別行政區訴周識博（譯音） 一案中，上訴許可申請人在原訟法庭中被控一項販運24.12克冰的控罪。他不認罪，但被陪審團裁定罪名成立。原審法官判處他入獄7年9個月。上訴法庭（因與本案無關的原因）改判申請人管有該毒品罪名成立，而販運該毒品罪名不成立。在量刑時，上訴法庭在判詞第6至7頁中有如下的說話：

“The amount was not large.  His evidence was that he was an addict, that he had the amount there for his own consumption and that he would have consumed that amount in about six weeks.  He said that at the time he was taking the drugs home having just purchased them.  He is clearly a drug addict as he has had eight convictions for possession of drugs since 1992.  We note that he has no conviction for possession for the purpose of trafficking.  We note also that he was in employment at the time of his arrest.  These are, when we come to consider what is known as the latent risk factor, important considerations.  Following the judgment in HKSAR v Lai Kam Shing, Crim App No. 578 of 1998, we are satisfied that we must start at the currently accepted sentence for simple possession, which is 18 months and must then if it is appropriate, enhance that sentence for a latent risk.”
“毒品的數量不大。他（即申請人）的證據是他是一個癮君子，他擁有該數量的毒品以供他自用，該些毒品可供給他6個星期的用度。他說在當時他剛買了毒品而將毒品帶回家中。他清楚地是一名癮君子，因為自1992年起他有八次管有毒品的前科。我們注意到他從沒有擁有毒品以作販運用途的刑事紀錄。我們亦注意到在被捕時他是受僱的人。當我們要考慮所謂潛在風險的因素時，這些都是重要考慮的事項。根據香港特別行政區訴黎錦生，Crim App No 578 of 1998，我們認為滿意者就是我們必須以現時被接納的純粹管有刑罰，即18個月，作為起點，然後，如在適當的情況下，必須因潛在風險而把該刑罰提高。”

Accordingly, the Court of Appeal adopted 18 months’ imprisonment as the appropriate sentence for possession of that 24.12 grams of “ice”, and another 6 months were added for the latent risk factor, giving a total of 24 months.  The Court of Appeal reduced the sentence by 1/3 for the applicant’s plea of guilty to possession, and so the sentence was one of 16 months.
上訴法庭乃採取18個月監禁作為管有該24.12克冰的合適刑期，而因潛在風險因素加上6個月監禁，從該總共的24個月監禁刑期，上訴法庭因申請人承認管有而扣減三分之一，故得刑期16個月。

Recently, in the case of HKSAR v Cheung Chun Fai, the Court of Appeal also made reference to the cases of Chew Sik Pok, Lai Kam Sang and Lau Chi Chiu and considered the amount of “ice” and the latent risk factor in sentencing.
最近，在香港特別行政區訴張俊輝  一案中，上訴法庭亦參照周識博、黎錦生及劉志釗案例，考慮管有冰的數量及潛在風險而量刑。

From all the above sentencing cases of the Court of Appeal for possession of dangerous drugs, it can be seen that attention has to be paid to the following points:
從以上所有上訴法庭有關管有危險藥物的量刑案例中，可見有下列需要注意之數點：

If a defendant is convicted for possession of dangerous drugs, he cannot be treated on the basis of trafficking in sentencing.  It is because there is no offence of “unproven trafficking” in law.
如被告被判管有毒品，在處刑時，則不能把他視作販運該毒品，因法律中並無“不能證明的販運”的罪行。

The sentence for possession of dangerous drugs shall be far more lenient than that for trafficking in dangerous drugs.  For example, the sentence of 2 to 5 years for trafficking in 10 grams or below of heroin and that of 5 to 8 years for trafficking in 10 to 50 grams of heroin, as set out in the sentencing guideline for trafficking in heroin in the case of R v Lau Tak Ming, are not applicable to sentencing for possession of dangerous drugs.
管有毒品所被判處的刑罰，應遠較販運毒品所處的刑罰為輕，如女皇訴劉德明（譯音） 的販運海洛英量刑指引，販運10克及以下的海洛英刑期為2至5年，而販運10至50克海洛英的刑期則為5至8年，是不能用於管有毒品的量刑的。

In cases involving “ice”, especially those of Chan Yat Sing, Lai Kam Sang and Chew Sik Pok which are cases decided in the past two years, the Court of Appeal took the view that the acceptable sentence for possession of dangerous drugs was an imprisonment for 1 year to 18 months.  This sentence also reflects the above views in (1) and (2).
在有關冰的案例中，尤其是最近兩年的陳日成、黎錦生、和周識博，上訴法庭認為管有毒品可被接納的刑期為1年至18個月監禁。這個刑量亦反映了以上(1)及(2)的思維。

In sentencing for possession of dangerous drugs, the court must consider the latent risk factor and decide whether the sentence should be enhanced for that factor.
就管有毒品量刑時，法庭必須考慮潛在風險的因素，是否因該因素而須將刑罰提高。

When a sentence is decided after taking the offence of possession of dangerous drugs and the latent risk factor into consideration, the court should consider other mitigating factors and then reduce the sentence accordingly.
就管有毒品及潛在風險因素而裁定刑罰後，法庭應考慮其他的求情或減刑因素，而把刑期削減。

Mr. Wong is not satisfied that the trial judge had not considered any cases in sentencing for possession of “ice”.  He pointed out that in principle, when dealing with sentencing for possession of any kind of dangerous drugs, the basic sentence for possession should first be considered and then the latent risk factor should be considered to see whether the sentence had to be enhanced.  He further pointed out that the courts in Hong Kong did not consider the harmful effect of “ice” to be less than that of heroin.  This view was supported by the case of AG v Ching Kwok Hung.
王大律師不滿原審法官並無參考有關管有冰的量刑案例。他指出，在原則上，處理管有任何毒品的量刑，應考慮管有的基本刑罰，再考慮潛在風險的因素而需否提高刑罰。他又指出，本港法庭認為冰的害處，不比海洛英的荼毒為小。這個看法，是有案例支持的，就是律政司訴程國雄（譯音） 。

In this case, the trial judge only said that she considered it inappropriate to take cases about “ice” as sentencing references for possession of heroin hydrochloride, but she had not given any reason or cited any case to support such a decision.  This Court takes the view that possession of heroin and “ice” is both contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, and the harmful effect of “ice” is by no means less than that of heroin.  Therefore, in principle, the gravity of possession of either one of these two dangerous drugs is more or less the same as that of the other, and the sentences should not differ much.  This is reflected in the following sentencing guidelines as set out in the cases of Lau Tak Ming and Ching Kwok Hung:
在本案中，原審法官只是說她認為以冰案例作海洛英鹽酸藏毒量刑參考並不適合，但她卻沒有指出任何原因或案例支持此裁決。本庭認為，管有海洛英或管有冰同樣地是違反《危險藥物條例》第8(1)(a)和(2)條，而冰的為害與海洛英不相伯仲，故在原則上，管有此一種或彼一種毒品的罪責，亦應大同小異，故刑期亦應沒有多大差別。這可見於劉德明及程國雄所訂下的量刑指引，如下：

As a result, this Court opines that due reference should be made to cases about sentencing for possession of “ice” for assistance in the sentencing for possession of heroin.  The above decision made by the trial judge is both unfounded and incorrect.
因此，本庭認為涉及管有冰量刑的案例，應適當地加以參考，協助考慮管有海洛英鹽酸之量刑。原審法官上述的裁決是缺乏理據及錯誤的。

However, Mr. Lee, Counsel for the Prosecution, pointed out to this Court that although he agreed that the two steps adopted in the cited cases about sentencing for possession of “ice”, namely, the basic sentence for possession and the enhancement for latent risk factor, and the various factors related to the consideration of latent risk were applicable to the sentencing for possession of heroin, he did not agree that the basic sentence in sentencing for “ice” could be directly applied to that for heroin.  It was because the nature, harmful effect and prevalence of each kind of dangerous drug were different, and the basic sentence for possession should be properly distinguished accordingly.  This Court agrees with this view, because if the drug in possession is cannabis, the penalty should be lighter than that for the possession of serious hard drugs such as “ice” and heroin.
然而，代表控方的李大律師向本庭指出，雖然他同意關於管有冰的量刑案例在採取兩個步驟，即管有的基本刑罰及潛在風險的加刑，及考慮潛在風險的各項有關因素方面，適用於考慮管有海洛英的量刑，但是他不同意在基本刑罰方面，冰的量刑可直接用於海洛英，因每種毒品的性質、為害程度及普及性各有不同，管有的基本刑罰亦須因而作出適當的分別。本庭贊成這意見，因為如果管有的毒品是大麻，刑罰就應較管有冰及海洛英這些嚴重硬性毒品為輕。

Mr. Wong also submitted that it was inappropriate for the trial judge to consider that there was a latent risk factor just for the reason that the drugs involved in this case were packed in small packets.  This Court considers that the packaging of drugs is a reasonable item for consideration in relation to the latent risk factor, and this was also mentioned in the case of Wong Yiu Kwan.  Other matters that require consideration, which were suggested by the Court of Appeal in the case of Chew Sik Pok, include the quantity of the drugs, whether the defendant is a drug addict, the seriousness of his addiction, for how long the drugs will last him, how the defendant stores or carries the drugs about and whether the defendant has a proper employment and income, etc.  Therefore, this Court thinks that there is nothing improper, rather, it is appropriate, for the trial judge to take into consideration the fact that the drugs found on the Defendant were packed in 137 packets when considering the latent risk factor.
王大律師亦辯稱原審法官以本案毒品被包裝成小包，就會有潛在風險因素的存在，是不當的。本庭認為，毒品的包裝情況，是潛在風險因素的合理考慮事項，在黃耀群亦有提及。其他要考慮的事情，上訴法庭在周識博中也有提示，就是毒品的數量，被告是否癮君子，他的毒癮有多深，毒品可供他自用多久，被告怎樣儲存或携帶毒品，和被告是否有正當工作及入息的人士，等等。故本庭認為，原審法官考慮從被告身上搜出的毒品包裝成137包，以作潛在風險因素的考慮，並無不當，而是應該的。

In this case, the Defendant stated that he was an Assistant Photographer in the movie industry and earned about $30,000 a month.  The drugs found on him at the time of the incident were bought by him for his own consumption for the price of $10,000.  That quantity of drugs could last him 20 days.  The Defendant had been in drug addiction since 1982.  He admitted that he had 19 convictions, 9 of which were drug-related, and 8 out of those were offences of possession of dangerous drugs.  Only the first record in 1982 was possession of dangerous drugs for the purpose of trafficking.  The Drug Addiction Treatment Centre Report dated 3 June 1999 pointed out that the Defendant had been sentenced to the Centre three times in 1982, 1990 and 1993 respectively for treatments but these were all ineffective.  The report also pointed out that the last time the Defendant consumed heroin was in January 1999.  However, according to the examination carried out by a medical officer, the Defendant was no longer drug-dependent.  Before the trial judge imposed sentence, the lawyer for the Defendant explained on his behalf why he was not drug-dependent: the Defendant was arrested on 13 November 1998 and granted bail on 20 December.  However, the bail was revoked by court on 15 January 1999, and the Defendant remained in custody from that day until 3 June 1999.  As a result, he got rid of his addiction during the 5 odd months of custody.
在本案中，被告稱他是一個從事電影業的助理攝影師，月薪約三萬元。案發時在他身上搜到的毒品，是他以一萬元的價錢買入以供他自用的。該數量的毒品可供他使用20天。自1982年起，被告已有毒癮，而他承認有19次犯罪紀錄，9次與毒品有關，其中8次是管有危險藥物，而只在最初1982年的一次，是管有危險藥物以作販運用途。戒毒中心1999年6月3日的報告書中指出，被告曾於1982年、1990年及1993年三次被判處到該中心戒毒，但是並無效用。該報告書亦指出被告最後一次使用海洛英是在1999年1月，但據醫官檢驗，被告已不再需要倚賴毒品。在原審法官處刑前，被告的律師代表他解釋為什麽他已經沒有毒癮：被告於1998年11月13日被捕，12月20日保釋外出，但1999年1月15日被法庭取消保釋，由當日被拘押至1999年6月3日；因此毒癮已在這段5個多月被拘留的時間中戒掉。

For the above reasons, this Court considers it inappropriate for the trial judge to sentence the Defendant to 3 years’ imprisonment without first considering the cases of the Court of Appeal about sentencing for possession of “ice”.  With reference to the above cases about possession of heroin and “ice”, this Court considers that the starting point for the Defendant for his possession should be imprisonment for 2 years.  The quantity of heroin hydrochloride possessed by the Defendant was 48.32 grams, which was exceptionally large, and was close to the quantity possessed by the applicant for leave to appeal in the case of Chan Ching Ho, and the drugs were packed in as many as 137 packets.  Although the Defendant had a decent job with a rather good salary, and he also stressed that the amount was for his own consumption and could only last for 20 days, this Court takes the view that the latent risk is really very high.  Therefore, this Court considers that for the latent risk factor, 18 months’ imprisonment should be added, making the overall starting point 3 years and 6 months.  The Defendant is entitled to the usual 1/3 reduction in sentence for his plea to possession.  Therefore, this Court takes the view that an appropriate sentence is 2 years and 4 months.
基於上述原因，本庭認為原審法官不考慮上訴法庭就管有冰量刑的案例而判處被告3年的刑期，是不當的。參照上述的管有海洛英及冰的各案例，本庭認為被告管有罪的刑期應以兩年監禁為量刑起點。另外，因被告管有的海洛英鹽酸為48.32克，數量奇高，幾可與陳清浩之上訴許可申請人所管有之數量相比，且分為137小包之多。雖然被告有頗高薪酬的正當工作，而又強調該數量是他自用而只可用20天，但是本庭覺得潛在風險實在很大。因此本庭認為就潛在風險因素方面，應加以18個月監禁，故量刑的總起點為3年6個月。因被告承認管有控罪，應予以通常的三分之一的刑罰扣減，故本庭認為適當的刑罰應為2年4個月。

This Court treats the Defendant’s application for leave to appeal as the appeal proper and allows the appeal.  The original sentence of imprisonment for 3 years is set aside and a term of 2 years and 4 months is substituted therefor.
本庭把被告的上訴許可申請當作為正式上訴，批准上訴，撤銷原判的3年刑期，而代之以2年4個月刑期。

HKSAR:represented by Mr. S. K. Lee, Senior Assistant Director of Public Prosecutions and Mr. W. K. Ho, Senior Government Counsel
香港特別行政區：由高級助理刑事檢控專員李紹強及高級政府律師何詠光代表

Defendant:represented by Mr. Wong Po Wing, instructed by the Legal Aid Department
被告：由法律援助署委派王寳榮大律師代表