Hon Barnes J (giving the reasons for judgment of the Court):
原訟法庭法官張慧玲頒發上訴法庭判案理由書：

Background
背景

The Applicant was charged with two offences involving a dangerous drug: Charge 1 was possession of 1.72 g of a powder containing 1.49 g of ketamine, and Charge 2 was trafficking in 3.36 kg (i.e. 3,360 g) of a powder containing 2.89 kg (i.e. 2,890 g) of ketamine.
申請人被控兩項涉及危險藥物的罪行：控罪‍一是管有內含1.49 克氯胺酮的1.72 克粉末，控罪‍二是販運內含2.89 公斤 (即2,890 克) 氯胺酮的3.36 公斤 (即3,360 克) 粉末。

The Applicant pleaded guilty to both charges before a magistrate and was committed to the Court of First Instance for sentence. The case was dealt with by Deputy High Court Judge Joseph Yau (“the Judge”). The Judge adopted 9 months’ imprisonment and 19 years and 9 months’ imprisonment as the starting points for Charges 1 and 2 respectively. On account of the Applicant’s guilty pleas, the two terms of imprisonment were reduced by one-third, to 6 months and 13 years and 2 months respectively. The Judge also ordered that 2 months of the sentence for Charge 1 was to run consecutively tothe sentence for Charge 2, making a total term of 13 years and 4 months.
申請人在裁判法院承認兩項控罪，交付高等法院原訟法庭判刑。案件由高等法院暫委法官邱‍智‍立 (「原審法官」) 審理。原審法官就控罪‍一及控罪‍二分別採納9 個月監禁及19 年9 個月監禁為量刑起點，在給予申請人1/3認罪扣減後，判刑6 個月及13 年2 個月監禁。原審法官亦判令控罪‍一的2 個月與控罪‍二的判刑分期執行，合共13 年4 個月監禁。

The Applicant applied for leave to appeal sentence.
申請人不服判刑，提出上訴許可申請。

At the conclusion of the hearing, we allowed the application and, treating the application as the appeal proper, we allowed the appeal to the extent that the sentences for Charges 1 and 2, while remaining unchanged individually, were to run concurrently, thereby reducing the total term of imprisonment to 13 years and 2 months. Our reasons for judgment are set out below.
本庭在聆訊後批准上訴許可申請，並視之為正式上訴。本庭裁定上訴得直，不改變控罪‍一及控罪‍二的個別刑期，但改判兩項控罪的判刑同期執行，而將總刑期減為13 年2 個月。以下是本庭的理由。

Prosecution case
控方案情

On 17 May 2012, a team of police officers who laid in ambush near Wai On Building, Wai Yan Street, Tai Po, saw the Applicant enter Wai On Building. Five minutes later, the Applicant left Wai On Building and was intercepted by the police outside Fuk Wah Building on Kwong Fuk Road. From a sling bag carried by the Applicant, the police found one folded 20-dollar banknote which held a powder weighing 1.72 g. Under caution, the Applicant remained silent (Charge 1).
案情顯示在2012 年5 月17 日，一隊警務人員在大埔懷仁街懷安樓附近埋伏，其後看見申請人進入懷安樓。5 分鐘後，申請人離開懷安樓，在廣福道福華樓外被警員截查。警員在申請人攜帶的斜孭袋內發現一張摺著的20 元紙幣，內有1.72 克粉末。警誡下，申請人保持緘默 (控罪‍一)。

Thereafter, the police searched the Applicant’s residence on the 5th floor of Wai On Building, where one electronic scale, one pair of scissors and 14 tinfoil packets, which contained a powder with a total weight of 3,360 g and containing 2,890 g of ketamine, were found. Under caution, the Applicant admitted that the powder was ketamine (Charge 2).
警方其後搜查申請人位於懷安樓5 樓的住所，搜獲1 個電子磅、1 把剪刀和14 個鋁紙包。鋁紙包載有內含2,890 克氯胺酮的3,360 克粉末。警誡下，申請人承認粉末為氯胺酮 (控罪‍二)。

The street value of the ketamine involved was approximately HK$400,000.
涉案的氯胺酮巿值約40 萬港元。

Background of the Applicant
申請人背景

At the material time, the Applicant was 27 years old and had received education up to Form 2. He was married but he and his wife subsequently separated. He worked on a casual basis and earned about $9,000 per month. He had four conviction records, one of which was for trafficking in a dangerous drug for which he was sentenced to the training centre.
案發時申請人27 歲，中二程度，已婚，但與妻子離異。他任職散工，月入約9,000 元。他有4 次刑事紀錄，其中一項為販運危險藥物罪，被判往教導所。

By way of mitigation, it was submitted that the Applicant was heavily in debt by reason of gambling and the need to pay for his late grandmother’s burial expenses. He was used by others to traffic in dangerous drugs, with a reward of $1,000 each time. It was the second time he trafficked in dangerous drugs for others when he was arrested. He said that he felt remorseful after his arrest, and he cooperated with the police and frankly admitted the offences. His former employer also asked for clemency on his behalf.
辯方求情陳詞表示申請人因賭錢及支付祖母的殮葬費而欠債纍纍，被他人利用販運毒品，每次報酬是1,000 元。被捕時申請人是第二次替他人運毒。申請人表示被捕後感後悔，並與警方合作、坦白承認控罪。申請人的舊僱主亦為申請人求情。

Ground of appeal
上訴理由

The ground of appeal advanced by Ms Cecilica To, Counsel for the Applicant was that the starting point for Charge 2 was too high, with the starting point of 19 years and 9 months’ imprisonment being manifestly excessive.
申請人代表杜‍妍‍芳大律師的上訴理由是控罪‍二的量刑基準過高，19 年9 個月此判刑起點是明顯過重。

Discussion
討論

The Applicant’s main argument was directed at HKSAR v Sin Chung Kin and another [2013] 1 HKLRD 622, a case on which the Judge relied in sentencing. In that case, the comment made by the Court of Appeal that the starting points for trafficking in 2,000 g to (sic) 3,000 g of ketamine should not be lower than imprisonment for 18 years and 20 years was mere obiter and did not constitute any sentencing guideline.
上訴一方主要的論據是原審法官依據的案例香港特別行政區訴單松健及另一人 [2013] 1 HKLRD 622判刑，但上訴庭在該案指出販運2,000至3,000 克氯胺酮的判刑起點應不少於18 年及20 年監禁，並非判刑指引，而是非具約束力的附帶意見 (obiter)。

The Applicant contended that Sin Chung Kin involved 5,120 g of ketamine, which was far more than the 2,890 g involved in the present case, but the Court of Appeal in that case did not interfere with the 22 years’ imprisonment imposed by the trial judge. The Applicant complained that, given the substantial difference between the quantity of drugs involved in Sin Chung Kin and that in the present case, the term of 19 years and 9 months imposed on the Applicant, which was merely 2 years and 3 months less than the term of 22 years in Sin Chung Kin, was unreasonable.
上訴一方亦指單松健 一案涉及的氯胺酮為5,120 克，遠較本案的2,890 克為多，但上訴庭並無干預原審法官判處的22 年監禁。上訴一方認為申請人的19 年9 個月判刑，祇是較該22 年少了2 年3 個月，和兩宗案件毒品份量的差距相比，於理不合。

The Applicant also referred to a few High Court cases in support of his contention that the starting point adopted in the present case was at variance with other similar cases. It was argued that according to the principle laid down in HKSAR v Leung Wai Man (unreported, CACC 24/2007, 7 December 2009), there should be consistency in sentences imposed in cases of the same type.
上訴一方另引用若干高等法院案件，藉以顯示本案的量刑起點有異於其他相類似案件。上訴一方指根據HKSAR v Leung Wai Man (梁偉民)，(未經彙報，CACC 24/2007，2009 年12 月7 日) 訂下的原則，同類案件的判刑應是一致的。

In Sin Chung Kin, two defendants admitted to trafficking in ketamine and cocaine of total quantities of 5.12 kg and 18.8 g respectively. The two of them were also involved in the possession of cocaine. For trafficking in such a large quantity of ketamine, Yeung CJHC (Ag) (as he then was) had the following to say in his Reasons for Judgment:
單松健 一案涉及兩名被告人，他們承認販運氯胺酮及可卡因，氯胺酮的總量是5.12 公斤，可卡因則為18.8 克。兩人亦涉及管有可卡因。就販運如此大量的氯胺酮，高等法院署理首席法官楊‍振‍權 (當時官階) 在頒發判案理由書時如此說：

“21.Ketamine is highly toxic and extremely hazardous to the human body. Since 2005 there has been a sharp increase in the quantities of ketamine seized by the police, and ketamine has become the most widely abused drug among youngsters aged below 21. In S for J v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal, having received relevant expert evidence, acknowledged the above situation and, on that basis, went on to revise the sentencing guidelines for trafficking in ketamine.
「21．氯胺酮毒性嚴重，對人體造成極大的遺害。自2005年起警方檢獲的氯胺酮數量激增，而氯胺酮更成為21 歲以下青年最普遍濫用的毒品。上述情況是上訴法庭在S for J v Hii Siew Cheng [2009] 1 HKLRD 1案經過聆聽專家證供後所確認的。上訴法庭更因此重訂非法販運氯胺酮的量刑基準。

22. The revised guidelines are as follows:
22．該重訂的量刑基準如下：

23. Where large quantities of ketamine are involved, although it is not possible to enhance the starting points proportionally, a reasonable and logical approach must be that, the larger the quantity of the drug is, the more severe the sentence will be.
23．雖然涉及大量氯胺酮，量刑基準不可能按比例遞升，但毒品份量越大，則判刑越重，必然是合理及合邏輯的處理方法。

24. The starting points for trafficking in dangerous drugs are determined according to the quantities of the drugs involved. For trafficking in large quantities of dangerous drugs, the “tariffs” laid down by the Court of Appeal have never exceeded 20 years’ imprisonment. In the case of trafficking in heroin, 400 g attracts 15 years’ imprisonment and 600 g 20 years’ imprisonment (see R v Lau Tak-ming & Others [1990] 2 HKLR 370). In the case of trafficking in “ice”, a quantity between 300 g and 600 g attracts 14 to 18 years’ imprisonment (see AG v Ching Kwok-hung [1991] 2 HKLR 125). According to these authorities, when the quantity of the heroin in question is increased by 50% from 400 g to 600 g, the starting point will increase from 15 years to 20 years; and when the “ice” in question is doubled from 300 g to 600 g, the starting point will go up from 14 years to 18 years.
24．非法販運毒品的量刑基準是根據毒品的份量而定，而上訴法庭就販運大量毒品罪行作出的量刑指引止於20 年。以販運海洛英而言，400克可導致15年監禁，而600克可導 [致] 20 年監禁 (見R v Lau Tak-ming & Others [1990] 2 HKLR 370案)；就販運“冰”毒而言，300克至600克可導 [致] 14至18年監禁 (見AG v Ching Kwok-hung [1991] 2 HKLR 125案)。根據上述案例，販運海洛英的份量由400克遞增50% 至600克時，量刑基準會由15年增加至20年，販運“冰”毒的份量由300克遞增一倍至600 克時，則量刑基準會由14年增加至18年。

25. The maximum sentence for trafficking in a dangerous drug is life imprisonment. When the quantity of the heroin or “ice” involved is so large that it is measured by the kilogramme, the starting point may well go far beyond 20 years and may even reach 30 years or more.”
25．非法販運毒品的最高判刑是終身監禁，而當販運海 [洛] 英或“冰”毒的份量是數以公斤計時，則量刑基準可以遠超過20年，甚 [至] 達30年或以上。」

The Court of Appeal did not revise the sentencing guidelines in Sin Chung Kin. It was only because of the lack of further elaboration in Hii Siew Cheng on the appropriate starting point for trafficking in over 1,000 g of ketamine that the Court of Appeal, having considered the rates of enhancement of starting points for trafficking in large quantities of other dangerous drugs (such as heroin and “ice”), made the observation that the appropriate starting points for trafficking in 2,000 g and 3,000 g of ketamine should, respectively, be no less than 18 years and 20 years.
上訴庭並無在單松健 一案重新訂下判刑指引。上訴庭祇是基於許守城 一案就販運超過1,000 克氯胺酮的恰當量刑起點無進一步說明，在考慮了販運大量其他危險藥物 (如海洛英及冰毒) 的量刑刑期增幅比例後，達致販運2,000 克及3,000 克氯胺酮的恰當量刑基準應不低於18 年及20 年此論點。

The above analysis is, with respect, correct.
本庭認為上述分晰正確。

Furthermore, in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, when revising the appropriate sentencing guidelines for trafficking in large quantities of heroin, the Court of Appeal said:
再者，上訴庭在HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437，就販運大量海洛英重新訂下恰當的判刑指引時說：

“36. In a submission with which we agree, Mr Zervos stated that it was important, at this level of trafficking, that there should be a meaningful distinction between traffickers who deal in 600 grammes of heroin and those who are caught trafficking in twice that quantity. Equally, a distinction needs to be drawn between those whose offences are aggravated for the purposes of sentence by other factors which call for an enhancement of sentence and those who have no aggravating circumstances to be taken into account against them.”
“36.In a submission with which we agree, Mr Zervos stated that it was important, at this level of trafficking, that there should be a meaningful distinction between traffickers who deal in 600 grammes of heroin and those who are caught trafficking in twice that quantity.  Equally, a distinction needs to be drawn between those whose offences are aggravated for the purposes of sentence by other factors which call for an enhancement of sentence and those who have no aggravating circumstances to be taken into account against them.”

The Court of Appeal took the view that when heroin traffickers were to be sentenced, there should be a meaningful distinction between the sentence for trafficking in only 600 g of heroin and that for trafficking in twice that quantity. A distinction should also be drawn between the sentence where there were aggravating factors and the sentence where no aggravating factors were present.
上訴庭的意見是判處販運海洛英的毒販時，毒品份量是600 克雙倍時的判刑應該和毒品份量祇是600 克的判刑有顯著的分別。當有其他加刑因素時，判刑亦應與無加刑因素時有分別。

In our view, the above principles are applicable to trafficking in large quantities of any dangerous drugs, including ketamine.
本庭認為上述原則適用於販運任何大量危險藥物，包括氯胺酮。

The Applicant cited a number of High Court sentencing cases. Although the sentences in some of those cases were imposed after Sin Chung Kin, none of the judges in those cases referred to Sin Chung Kin and it seems that they were not aware of the judgment in Sin Chung Kin at the time. On the other hand, the “meaningful distinction” as stated in Abbas is not reflected in the sentences imposed in the following cases:
上訴一方引用多宗高等法院的判刑，雖然部分案件的判刑是在單松健 一案之後，但該等案件的原審法官均沒有提及單松健 一案，看來當時他們並不知悉有關單松健 的判辭。另一方面，下列案件的判刑亦無Abbas一案所提及的「顯著分別」：

HKSAR v Chan Hon Lun (HCCC 13/2012) - for 2,670 g of ketamine, the starting point was 15 years;
HKSAR v Chan Hon Lun (HCCC 13/2012)—2,670 克氯胺酮，量刑基準15 年；

HKSAR v Chan Peng Chun (HCCC 420/2011) - for 2,970.95 g of ketamine, the starting point was 16 years which was enhanced to 16½ years by reason of the defendant’s previous conviction record;
HKSAR v Chan Peng Chun (HCCC 420/2011)—2,970.95 克氯胺酮，量刑基準16 年，再因被告人有前科而提高至16½ 年；

HKSAR v Yeung Tak Lung (HCCC 227/2012) - for 4,690 g of ketamine, the starting point was 16 years; and
HKSAR v Yeung Tak Lung (HCCC227/2012)—4,690 克氯胺酮，量刑基準16 年；及

HKSAR v Ma Chi Hong (HCCC 1/2012) - for 6,160 g of ketamine, the starting point was 16 years.
HKSAR v Ma Chi Hong (HCCC 1/2012)—6,160 克氯胺酮，量刑基準16 年。

The Applicant also cited the sentences imposed in two other High Court cases, which are more severe than those imposed in the above 4 cases. Although it can be said that there is a meaningful distinction between those starting points and that for trafficking in 1,000 g of ketamine, those two cases were determined before Sin Chung Kin and the judges dealing with those two cases did not have the opportunity to consider the reasoning of the court in Sin Chung Kin:
上訴一方另引用兩宗高等法院案件的判刑，該兩宗案件的判刑較上述4 宗為重。雖然量刑基準可說是與販運1,000 克有顯著分別，但該兩宗案件發生在單松健 之前，原審法官未有機會考慮單松健 一案的邏輯論據：

HKSAR v So Lok Him (HCCC 109/2011) - for 3,250 g of ketamine, the starting point was 18 years; and
香港特別行政區訴蘇樂謙 (HCCC 109/2011)—3,250 克氯胺酮，量刑基準18 年；及

HKSAR v Lee Chun Hung (HCCC 237/2011) - for 4,808.74 g of ketamine, the starting point was 19 years.
香港特別行政區訴李振鴻 (HCCC 237/2011)—4,808.74 克氯胺酮，量刑基準19 年。

It is true that in HKSAR v Ng Siu Kam (unreported, CACC 474/2009, 2 September 2011), another case relied on by the Applicant, where the defendant conspired to traffic in 5,000 to 5,500 g of ketamine, the Court of Appeal considered a starting point of 16 years appropriate and, taking into account aggravating factors, eventually adopted 20 years’ imprisonment as the starting point. However, as the Court of Appeal pointed out in Sin Chung Kin:
誠然，在上訴一方引用的HKSAR v Ng Siu Kam (吳肇淦)，(未經彙報，CACC 474/2009，2011 年9 月2 日) 一案，被告人串謀販運5,000至5,500 克氯胺酮，上訴庭認為16 年量刑基準是合適的，另因案件涉及加刑因素，最終採納了20 年監禁為量刑基準，但正如上訴庭在單松健 一案指出：

“26. … Ng Siu Kam concerned the offence of conspiracy to traffic in a dangerous drug and the quantity of the drug involved was merely an estimate. Furthermore, in that case the Court of Appeal did not explain clearly the rationale for passing the sentence that it did. Therefore, the case offers limited guidance.”
「26.…. Ng Siu Kam案涉及的是串謀販毒案，而涉案毒品的份量只是一個約數，而在該案，上訴法庭亦沒有說明量刑的邏輯基礎，故不具重要指導作用。」

As Sin Chung Kin did not lay down any sentencing guideline but instead analysed and considered in detail the appropriate starting points, it was certainly open to the Judge to consider the reasoning in Sin Chung Kin even though the Applicant’s case arose before the Reasons for Judgment of Sin Chung Kin was handed down. Furthermore, even if the Court of Appeal had laid down sentencing guidelines which had no retrospective effect, the court would still be entitled to refer to those guidelines for the purpose of making a comparison (see HKSAR v Mohamed Omar Ally (unreported, CACC 407/2008, 23 June 2009, para. 13) and HKSAR v Chan On Ming (unreported, CACC 44/2009, 31 August 2010, para. 20).
既然單松健 一案並非訂下判刑指引，而是就恰當的量刑基準作出詳細分析、考慮，雖則申請人的案件發生在單松健 案例頒發判案理由書之前，原審法官當然可考慮單松健 一案的論據。再者，即使上訴庭頒下判刑指引，而新指引是無追溯性的，法庭仍可使用新指引作一比較 (見HKSAR v Mohamed Omar Ally (未經彙報，CACC 407/2008，2009 年6 月23 日，第13 段) 及香港特別行政區訴陳安明 (未經彙報，CACC 44/2009，2010 年8 月31 日，第20 段)。

The fact that individual defendants have been dealt with leniently by the court does not mean that the starting point of 19 years and 9 months imposed on the Applicant in the present case must necessarily be manifestly excessive. What we have to determine is whether, in light of the circumstances of the case and the Applicant’s background, the starting point is manifestly on the high side.
個別被告人獲法庭寬大處理並不代表本案的19 年9 個月量刑起點必屬明顯過重。本庭考慮的是以本案的案情及申請人的背景而言，此量刑基準是否明顯過高。

After consideration, we have taken the view that the starting point of 19 years and 9 months adopted by the Judge is neither wrong in principle nor manifestly excessive.
本庭經考慮後，認為原審法官的量刑基準無犯上任何原則性錯誤，而19 年9 個月此量刑起點亦非明顯過高。

In respect of Charge 1, namely possession of 1.49 g of ketamine, the Judge adopted 9 months’ imprisonment as the starting point and imposed a sentence of 6 months’ imprisonment after giving the one-third discount for the Applicant’s guilty plea. There is nothing improper with this sentence, with which the Applicant has in fact not taken issue. However, in our judgment, had Charge 1 also been for trafficking in a dangerous drug, the drugs involved in the two charges would, on the facts of the present case, have been considered together, and the appropriate starting point for trafficking in 2,891.49 g of ketamine would still have been 19 years and 9 months. This being the case, although trafficking in a dangerous drug and possession of a dangerous drug are different in nature and generally their sentences should not be made entirely concurrent, we have, on the facts of the present case, taken the view that the whole term of 6 months in respect of Charge 1 should run concurrently with the 13 years and 2 months in respect of Charge 2, making a total term of 13 years and 2 months.
原審法官就控罪‍一，即管有1.49 克氯胺酮，採納9 個月為量刑基準，給予1/3認罪扣減後判刑6 個月，此判刑並無不當，申請人亦無異議。唯本庭在考慮到若申請人就控罪‍一是同樣被控販運危險藥物罪，以本案的案情，兩項控罪涉及的危險藥物會一併考慮，而2,891.49 克氯胺酮的恰當量刑基準仍是19 年9 個月。在此情況下，雖然販運危險藥物與管有危險藥物的性質不同，一般而言，不應將刑期全部同期執行，但以本案的案情，本庭認為控罪‍一的6 個月監禁應與控罪‍二的13 年2 個月全部同期執行，故總刑期是13 年2 個月。

Ms Samantha Chiu, Senior Public Prosecutor of the Department of Justice, for the HKSAR (Respondent).
答辯人：由律政司高級檢控官招秉茵代表香港特別行政區

Ms Cecilica To, instructed by Messrs. Wong, Kwan & Co., for the Applicant.
申請人：由黃東強關獻機律師行轉聘杜妍芳大律師代表