The applicant pleaded guilty before District Judge Sham to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The drug involved was 8.50 grammes of a mixture containing 6.82 grammes of heroin hydrochloride.  On 29 May 2014, Judge Sham sentenced the applicant to 38 months’ imprisonment.  The applicant now applies for leave to appeal to the Court of Appeal against the sentence.
申請人在區域法院法官沈小民席前承認一項販運危險藥物罪，違反香港法例第134章第4(1)(a)及(3)條。涉案的危險藥物為內含6.82克海洛英鹽酸鹽的8.50克混合劑。2014年5月29 日，沈法官判處申請人38個月監禁。申請人現申請准許就判刑向上訴法庭提出上訴。

Facts
案情

The facts, admitted by the applicant, are as follows.  At about 5:27 pm on 9 January 2014, the police were carrying out an anti-narcotic operation in the vicinity of Soy Street, Kowloon.  During the operation, a car appeared and pulled over at a traffic light junction in Soy Street.  The applicant approached the car.  He spat out a pellet of drug, handed it to the driver who was inside the car, and received some money from him.  A police officer intercepted the driver and found a pellet of drug in red wrapping from his jacket upon search.
申請人承認的案情透露，2014年1月9日下午約5:27 時，警方在九龍豉油街附近執行反毒品行動。期間有一輛汽車駛至，在豉油街燈位處停下，申請人上前，從口中吐出一粒毒品交給車上的司機，及從他收取金錢。警員其後截停該名司機，從他所穿的外衣搜出一粒紅色包裝的毒品。

Meanwhile, another police officer intercepted the applicant and, upon search, found from his pant pocket 15 pellets of drug in red wrappings and 5 pellets of drug in white wrappings. The applicant admitted under caution that he sold No. 4 heroin on behalf of someone for a reward of $700.
另一方面，警員亦截停申請人，進行搜查。警員在申請人所穿的褲子的口袋搜出15粒紅色包裝和5粒白色包裝的毒品。申請人在警員警誡下，承認代人出售4號海洛英，以賺取700元報酬。

On 11 January 2014, while in the custody of the Correctional Services Department, the applicant twice discharged drugs: he discharged 6 pellets of drug in red wrappings and 9 pellets of drug in white wrappings on the first occasion and one pellet of drug in red wrapping and 4 pellets of drug in white wrappings on the second.  He said under caution that he had swallowed those pellets accidentally upon his arrest on 9 January.
2014年1月11日，申請人在懲教署拘留期間，先後兩次從身體排出毒品，分別是6粒紅色包裝和9粒白色包裝的毒品，及1粒紅色包裝和4粒白色包裝的毒品。申請人在警誡下，表示在1月9日被拘捕時意外地把這些毒品吞下。

The above pellets contained a total of 6.82 grammes of heroin hydrochloride.
上述的毒品共含6.82克海洛英鹽酸鹽。

The sentence at first instance
原審的判刑

The applicant is 34 years old.  He has 22 previous criminal convictions. Eight of them are related to drugs or Part I poison, 3 of which are convictions for trafficking in a dangerous drug.  His last conviction prior to the present one is dated December 2009 and is for possession of a dangerous drug, for which and he was sentenced to a drug addiction treatment centre.
申請人34歲，之前共有22次刑事定罪紀錄，其中8次與毒品或第I類毒藥有關，當中有3次是販運危險藥物的定罪。最後一次定罪在2009年12月，所干犯的是一項管有危險藥物，被判往戒毒所接受戒毒治療。

By way of mitigation, counsel for the applicant submitted that the applicant started taking drugs since the age of 20 and that he fully cooperated with the police after his arrest.  Counsel also stated that the applicant’s three previous convictions for trafficking in a dangerous drug dated back to 1999, 2000 and 2003 respectively and that prior to the present offence he had not been committing any drug trafficking offence for 11 years.  Counsel therefore requested Judge Sham not to enhance the sentence on the basis that the applicant was a persistent offender.
代表申請人的律師在減刑陳詞中，指出申請人自20歲吸毒，在本案自被拘捕後與警方充分合作。她亦指出，申請人的三次販運危險藥物定罪是早在1999年、2000年及2003年，而他在本案之前已有11年沒有干犯販運毒品的罪行，她因此要求沈法官不要基於申請人是積犯而加刑。

Judge Sham adopted 4 years’ imprisonment as a starting point.  Since it was the fourth time the applicant committed the offence of trafficking in a dangerous drug, Judge Sham considered him a persistent offender and found it necessary to enhance the sentence in order to strengthen deterrence.  He therefore enhanced the starting point  to 4 years and 9 months.  Giving the one-third discount for the applicant’s guilty plea, Judge Sham sentenced him to 38 months’ imprisonment.
沈法官在判刑時採用4年監禁為量刑基準。基於申請人是第4次干犯販運危險藥物罪，沈法官認為他是一名積犯，需要加刑以增加阻嚇作用。他因此加刑9個月至4年9個月。由於申請人承認控罪，沈法官給予三分一刑期扣減，判處申請人38個月的監禁刑期。

Grounds of appeal
上訴理由

In the Notice of Application for Leave to Appeal, the applicant did not put forward any grounds of appeal.
申請人在上訴許可通知書中，沒有提出任何上訴理由。

At the hearing, he made written submissions to the effect that, given the quantity of the drug involved in the present case, the starting point of 4 years and enhancement of 9 months adopted by Judge Sham were manifestly excessive.  The applicant referred to a District Court case (HKSAR v Yu Kwok Ming, DCCC 322/2012) and stated that, despite the larger quantity of heroin involved and the extensive drug trafficking conviction records of the defendant in that case, the judge adopted a starting point of 3 years and 9 months and did not enhance the sentence.  In comparison, the applicant submitted that his sentence was manifestly excessive and unfair.
在聆訊時，申請人提交了書面陳詞。當中指出以本案的毒品重量，沈法官採用4年為量刑基準，再加刑9個月，是明顯過重。申請人也提及一宗區域法院的案件（香港特別行政區訴余國明DCCC 322/2012），指該案所涉海洛英重量較本案為多，而該案被告人亦有多次販運危險藥物的刑事定罪紀錄，但法官不但沒有加刑，而且採用3年9個月為量刑起點。申請人認為與該案相比，他被判的刑期顯然過重，而且有欠公平。

Reasons for judgment
本庭的判決理由

In R v Lau Tak Ming & Others [1990] 2 HKLR 370, the Court of Appeal laid down sentencing guidelines for trafficking in heroin.   For a quantity of 10 grammes or below, the starting point is 2 to 5 years’ imprisonment.  The present case involves 6.82 grammes of heroin.  The starting point of 4 years adopted by Judge Shum is in line with the guidelines set out in Lau Tak Ming and is not manifestly excessive.
在R v Lau Tak Ming & Others [1990] 2 HKLR 370案中，上訴法庭就販運海洛英訂出量刑指引。如涉案海洛英重量在10克或以下，量刑基準是2至5年的監禁。本案所涉的海洛英重量是6.82 克。沈法官採用4年為量刑基準，符合Lau Tak Ming案的指引，並非明顯過重。

In HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 at 833B-834C, the Court of Appeal held that repeated commission of the same type of offence by a defendant is an indication that the previous sentences imposed on him are not serving any deterrent effect and therefore, to reflect the gravity of the matter and protect the general public, the court will impose a deterrent sentence.
在HKSAR v Chan Pui Chi [1999] 2 HKLRD 830，833B-834C，上訴法庭指出，若被告人屢次重犯同類罪行，這顯示法庭過往的判刑不能起阻嚇之用。是故，為反映其嚴重性及保護社會大眾，法庭在量刑時，會判處具阻嚇性的刑期。

In the present case, the applicant has a number of drug-related convictions, including convictions in 1999, 2000 and 2003 for trafficking in dangerous drugs, for which he was sentenced to imprisonment for 18 months, 22 months and 24 months respectively.  The applicant is obviously a persistent offender of this type of offence.  This also shows that the previous sentences imposed on him are not serving a deterrent effect.  It was not unreasonable for Judge Sham to enhance the starting point in order to strengthen deterrence.   And while the enhancement by 9 months was on the high side, it was not manifestly excessive in the circumstances of the present case, particularly in light of the fact that the applicant was carrying 41 small packets of drug on the day of arrest.
在本案中，申請人之前已有多項與毒品有關的定罪，其中在1999年、2000年和2003年更分別因販運危險藥物罪被判處18個月、22個月和24個月監禁。顯然，申請人是這類罪行的積犯。同時，這亦反映法庭之前的刑期對他不能收阻嚇的效果。沈法官認為應把量刑基準上調，使刑期具阻嚇性，是無可厚非。而沈法官把量刑基準調高9個月雖然是嚴峻，但在本案的情況而言，尤其考慮到申請人被捕當日攜有41粒毒品，這並非明顯過重的情況。

Other than the applicant’s guilty plea, I can discern no other mitigating factors.  The one-third discount to sentence that Judge Sham gave to the applicant for his guilty plea was appropriate.
本案除卻申請人承認控罪外，沒有其他可減輕刑罰的因素。沈法官就申請人承認控罪給予三分一刑期扣減，做法恰當。

The applicant has relied on HKSAR v Yu Kwok Ming in support of his assertion that his sentence is manifestly excessive and unfair.  In Yu Kwok Ming, the defendant was charged with trafficking in 7.26 grammes of heroin hydrochloride.  Similar to the present case, the defendant discharged some further drugs while he was in custody.  That defendant had 8 previous convictions, 4 of which were for trafficking in a dangerous drug.  The judge adopted a starting point of 3 years and 9 months and, noting that some of the drug in question was for the defendant’s self-consumption, reduced the starting point to 3 years and 4½ months.  The judge then reduced the term by one-third discount on account of the defendant’s guilty plea and, in addition, gave the defendant a further one-month discount in sentence in light of his involvement in voluntary work.  In the end, the defendant was sentenced to 26 months’ imprisonment.
申請人援引香港特別行政區訴余國明案，以支持他的刑期明顯過重和不公平的說法。在余國明案中，被告人被控以販運7.26克的海洛英鹽酸鹽。與本案一樣，該被告人在被拘留期間從身體再排出一些毒品。該被告人之前有8次刑事定罪紀錄，其中有4次是販運危險藥物罪。法官採用3年9個月為量刑基準，因案中部分毒品是該被告人自用的，法官把量刑基準下調至3年4½ 個月。除給予三分一刑期扣減以反映該被告人承認控罪，法官亦因該被告人的義務工作，而給予額外一個月的刑期扣減。最終該被告人被判26個月監禁。

It has to be pointed out that sentencing decisions made by the District Court are not binding on the Court of Appeal and only serve as a reference.  Furthermore, in Yu Kwok Ming the starting point of 3 years and 9 months was on the low side in light of the quantity of drug involved.  More importantly, defendants are to be sentenced on the basis of the circumstances of each case.  For example, in Yu Kwok Ming, the judge accepted that some of the drug was for self-consumption, and this was a factor which warranted a reduction of the starting point.  No such factor or any other mitigating factor exists in the present case.   Put simply, it is not for this Court to rule that the sentence imposed in the present case is manifestly excessive or unfair merely because the defendant in another case was sentenced to a shorter term.
本席必須指出，區域法院的判刑決定，對上訴法庭沒有約束力，只具參考作用。再者，以余國明案中的毒品重量，3年9個月的量刑基準屬偏低。更為重要的是法庭在量刑時，必須以案中的情況作為依歸。比如在余國明案中，法官接納部分毒品是作自用，這是調低量刑基準的因素，而本案卻沒有類似或其他減刑因素。簡而言之，法庭不能因另案的判刑較輕，便裁定本案的判刑是明顯過重或不公平。

The applicant’s intended appeal against sentence has no merits.  Leave to appeal is refused accordingly.
申請人擬提的刑期上訴欠缺理據。本席拒絕批予上訴許可。

Mr Jones Tsui, Senior Public Prosecutor of the Department of Justice, for the respondent.
申請人：無律師代表，親自出庭。

The applicant in person, present.
答辯人：由律政司高級檢控官徐和中代表。