Hon 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理由書 ：

Background
背景

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.  He pleaded not guilty to the charge before Deputy Judge Sham in the District Court but pleaded guilty to possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the said Ordinance.  The prosecution no longer proceeded with the trafficking charge, and the summary of facts was amended by deleting the phrase which stated that the applicant “was in possession of the dangerous drug for the purpose of trafficking”.  Deputy Judge Sham convicted the applicant of possession of a dangerous drug and sentenced him on that basis.  The drug involved was 5.47 grammes of “ice”.
申請人本被控一項「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。申請人在區域法院暫委法官沈‍小‍民席前否認控罪，但承認「管有危險藥物」罪，違反上述《危險藥物條例》第8(1)(a) 及 (2) 條。控方遂不再就「販運危險藥物」罪檢控申請人。有關案情亦作出修改，將申請人「管有涉案危險藥物作販運用途」此句刪除。沈‍法官裁定申請人管有危險藥物罪名成立，及以該基礎判刑。涉案的危險藥物是5.47 克「冰毒」。

The applicant was sentenced to 20 months’ imprisonment.  He appeals against this sentence.
沈‍法官判處申請人監禁20 個月。申請人就判刑提出上訴。

Following the hearing, we granted leave to appeal and, treating the hearing as the appeal itself, we allowed the appeal, set aside the sentence of 20 months’ imprisonment and substituted therefor a sentence of 16 months’ imprisonment.  Our reasons are set out below.
本庭在聆訊後批准上訴許可，並視之為正式上訴。上訴得直，20 個月監禁刑期撤銷，改判16 個月監禁。以下是本庭的理由。

Admitted facts
承認案情

The facts admitted by the applicant revealed that at the material time, the police searched the room in which the applicant resided and found on a table a bag containing 0.20 gramme of “ice” and 42 re-sealable plastic bags.  In addition, a plastic bag containing 5.27 grammes of “ice” was found from a pocket of a men’s jacket inside a wardrobe.
申請人承認的案情顯示，警方人員在案發時搜查申請人居住的房間，在枱上找到一包載有0.20 克冰毒的膠袋和42 個可再封口膠袋。另外在衣櫃內一件男裝外套的袋內找到一包載有5.27 克冰毒的膠袋。

Under caution, the applicant said that all the “ice” was bought by him for $3,000 and was for his own consumption.  He also said that the re-sealable plastic packets were to be used for packaging earrings, although he did not have any earrings at the material time.
警誡下，申請人指全部冰毒是他以 $3,000購入，供他本人自用。枱上的可再封口膠袋是用作包裝耳環之用，但他當時並無任何耳環。

The “ice” in question had a street value of $3,916.80.
涉案冰毒的巿值是 $3,916.80。

The applicant’s background and mitigation
申請人的背景及求情陳詞

Deputy Judge Sham obtained a Drug Addiction Treatment Centre (DATC) report before sentence.  The report details the applicant’s background, which can be briefly described as follows.
沈‍法官在判刑前索取了戒毒所報告書，內容有申請人的詳盡背景資料，本庭祇簡述如下。

The applicant, aged 38, had 14 previous convictions, six of which were for possession of dangerous drugs.  At the material time, he resided with his girlfriend in the room in question.  Their daughter was born while he was on bail.  He quit schooling after completing Form 3 and had worked variously as an apprentice hairdresser, waiter, transportation worker, etc.  At the material time, he worked as a car salesman earning a basic monthly salary of $4,000.
申請人年38 歲，有14 項刑事紀錄，其中6 項是管有危險藥物。申請人在案發時與女友居於涉案的房間。在擔保期間，女兒出生。申請人在讀中三後輟學。他曾任理髮學徒、侍應、運輸工人等工作。案發時任汽車經紀，每月底薪為 $4,000。

The applicant initially took cannabis for fun.  Then he started to abuse psychiatric drugs and eventually took to abusing “ice”.  He was sentenced to a DATC for treatment in 2009.
申請人最初因為貪玩吸食大麻，其後開始濫用精神科藥物，最後更濫用冰毒。在2009 年曾經被判往戒毒所接受治療。

In mitigation, the then Counsel for the applicant submitted that the applicant had been cooperative with the police and had frankly pleaded guilty, and that birth of his daughter during the bail period had made him realize the importance of family love.  He promised the Deputy Judge that he would make contributions to society in future.
申請人當時的代表大律師求情時，指申請人與警方合作和坦白認罪。申請人的女兒在他擔保期間出世，令他感到親情可貴。他向沈‍法官承諾他他日會貢獻社會。

In relation to the “latent risk” factor, Counsel for the applicant submitted that on the facts, the present case was “just social trafficking taken at the highest”, since both the applicant and his girlfriend had “this hobby”.  It was submitted that they would not get involved in drugs again after this incident.
就「潛在風險」這個範疇，申請人代表大律師指本案案情「極其量祇屬社交性販運」，因為申請人與其女友均有「這種嗜好」。大律師指經此次經歷之後，兩人不會再接觸毒品。

Reasons for sentence
判刑理由

Taking into account the facts of the case, the background of the applicant and the mitigation put forward on his behalf, and having considered the case of HKSAR v Mok Cho Tik [2001] 1 HKC 261, Deputy Judge Sham considered that the quantity of the “ice” in question was  “quite significant” and adopted a starting point of 18 months’ imprisonment.  He also considered that the “latent risk” was “rather high” and enhanced the sentence by 12 months.  The applicant was given one-third discount in sentence and was sentenced to 20 months’ imprisonment.
沈‍法官在考慮了案情、申請人背景、求情陳詞，及考慮了案例莫祖廸 (譯音) 後，認為涉案的冰毒份量「相當之多」，以18 個月為量刑起點。沈‍法官認為「潛在風險」「相當之大」，加刑12 個月，給予申請人三份之一刑期扣減之後，判刑20 個月監禁。

Grounds of appeal
上訴理由

The grounds of appeal advanced by Mr Lam, Counsel for the applicant, are essentially as follows:
申請人代表林‍漢‍環大律師提出的上訴理由，基本上是指；

The 18-month starting point adopted by the Deputy Judge is excessive.
沈‍法官以18 個月為量刑起點是過重。

The 12-month enhancement imposed by the Deputy Judge on the ground of “latent risk” is too high.
沈‍法官因為「潛在風險」因素加刑12 個月是過高。

The overall sentence of 20 months’ imprisonment is manifestly excessive.
整體而言，20 個月的總刑期是明顯過重。

Relying on cases such as Mok Cho Tik and HKSAR v Jarhia Kuldeep Singh, CACC 96/2006, Mr Lam submitted that the starting point should be 15 months and the enhancement 6 months, making a total sentence of 14 months.
林‍大律師引用莫祖廸、Jarhia Kuldeep Singh等等案例，指量刑起點應是15 個月，加刑應是6 個月，總刑期應是14 個月。

Respondent’s reply
答辯人回應

Miss Chan, Acting Senior Public Prosecutor for the respondent, replied that in light of all the circumstances of the present case and the applicant’s criminal record, the starting point of 18 months was not excessive, nor was the 12-month enhancement too high, and the overall term of 20 months was by no means manifestly excessive.
答辯人代表署理高級檢控官陳‍冰‍華大律師回應指，以本案的所有情況及申請人的犯案紀錄而言，18 個月的量刑起點並非過重，12‍個月的加刑亦非過高，20 個月的總刑期並非明顯過重。

Miss Chan argued that the circumstances of the applicant were different from the cases cited by Mr Lam.  Although the “ice” in question weighed 5.47 grammes, the applicant had six previous convictions for possession of dangerous drugs and abused “ice” together with his cohabiting girlfriend.  The 12-month enhancement was (Miss Chan submitted) not excessive.
陳‍大律師指申請人的情況有別於林‍大律師所引述的案件。雖則申請人涉及的冰毒是5.47 克，但他有6 次管有危險藥物前科及與同居女友一同濫用冰毒，12 個月加刑幅度並不過份。

Our views
本庭所作的考慮

The three grounds of appeal can, we think, be dealt with together.
本庭認為3 項理由可以一併處理。

First, in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405, having considered the authorities, the Court of Appeal held that in determining an appropriate sentence for a bona fide drug user who is convicted of simple possession of dangerous drugs, the judges should adopt the following three-step approach (see 407 C to H):
首先，上訴庭在溫尚深 (譯音)一案，考慮了以往的案例後，裁定法官在判處一名真正吸毒者管有危險藥物時，應該有以下3 個步驟 (判詞第407 頁C至H 行)：

“Step 1: The judge should normally determine a starting point of between one year to eighteen months’ imprisonment.
意思是步驟 (一) ：一般而言，法官就管有危險藥物罪應定下1 年至18 個月監禁的量刑起點。

Step 2:The starting point is increased or enhanced to take account of the latent risk factor in order to arrive at a total sentence.  This will reflect the risk to society of the drugs being redistributed and finding their way into other hands apart from the offender’s.  The latent risk will be determined from all the circumstances in any particular case, including of course the quantity of drugs possessed and the personal circumstances of the offender.
步驟 (二) ：此量刑起點可因應該危險藥物被再分配及流入其他人手中的潛在風險而上調。潛在風險須根據每宗案件的整體情況而決定，包括毒品份量及犯案者的個人狀況。

Step 3:The total sentence is then adjusted to take account of the mitigating factors, such as a guilty plea.”
步驟 (三) ：因應求情理由 (如認罪) 而再調整總刑期。

The Court of Appeal endorsed the above sentencing approach in Mok Cho Tik.
上訴庭在莫祖廸 一案確立了以上的判刑步驟。

In Mok Cho Tik, the Court of Appeal said (at 267 B to E):
在莫祖廸 一案，上訴庭指 (判詞第267 頁B至E 行)：

“Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case.  We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court).  But that is not the be all and end all of the appropriate starting point.  It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.  Obviously the quantity will be the main governing factor which will determine where the starting point will lie.  If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be.  The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff.  Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs.  The full circumstances of the risk must be assessed.”
意思是量刑起點及因應潛在風險而上調的幅席必須切合每宗案件的情況。如所涉危險藥物的份量是一名真正吸毒者一般會管有的份量，則量刑起點是介乎12至18個月監禁 (而此量刑起點已被區域法院和高等法院的案件採納)。但這並不表示此量刑起點是唯一的合適量刑起點。這是假設監禁比起更新更為必要。如涉案毒品份量是很少而情況允許，並不排除裁判官可判予較短的刑期。有關的危險藥物份量明顯是決定量刑起點的主要因素。若犯案者是一名積犯，便應預期較高的量刑起點。存在風險因素及程度不能以數學方式計算來訂定量刑準則。有關的考慮因素包括犯案人是否無業、毒品的存放地點能否被其他人接觸到、犯案人是否有干犯販運危險藥物的定罪前科，及毒品份量。法庭必須衡量風險的整體情況。

In Mok Cho Tik, which involved 15.724 grammes of “ice”, the offender was aged 22 and had one previous conviction for possession of dangerous drugs.  He denied selling the drug and said that he would only offer it to people who went to his residence for their consumption.  It was not known whether the offender was being employed at the material time.  The Court of Appeal took the view that an appropriate starting point was 18 months’ imprisonment and that the sentence was to be enhanced by 12 months to reflect the “latent risk” factor.
在莫祖廸 一案，涉案的冰毒是15.724 克。犯罪人22 歲，有一項管有危險藥物的前科。他否認出售冰毒，指他祇是會供應給前往他住所的人服用。無資料顯示犯案人當時是否受僱。上訴庭認為恰當的量刑起點是18 個月，「潛在風險」加刑則為12 個月。

In Jarhia Kuldeep Singh, which involved 6.82 grammes of “ice”, the offender was aged 27 and unemployed.  He was drug-dependent but was not suitable for admission to a DATC.  The Court of Appeal said that 6.82 grammes of “ice” was neither small nor large, and did not accept the offender’s allegation that this quantity was sufficient enough for him to consume for 2 or 3 days.  The Court of Appeal considered a starting point of 15 months’ imprisonment appropriate and enhanced the sentence by 12 months.
在Jarhia Kuldeep Singh一案，涉案的冰毒是6.82 克。犯案人當時年27 歲、無業、有毒癮但不適合往戒毒所接受治療。上訴庭指6.82 克的份量不算高、亦不算低。法庭不接納犯案人指涉案的份量足夠他服用2至3 日。上訴庭認為恰當的量刑起點是15 個月，而加刑的幅度是12 個月。

In HKSAR v Minney [2011] 3 HKLRD 556, the Court of Appeal further explained the legal principle of “latent risk” (at para. 13(a) of the judgment):
在HKSAR v Minney 一案，上訴庭進一步解釋「潛在風險」此法律原則 (第13(a)段)：

“The word ‘latent’ is misleading, for a consideration of the cases and the rationale for treating the relevant risk as an aggravating factor shows that what is of justifiable societal concern is actual risk disclosed by the facts of the case; in other words, actual risk of dissemination; …”
意思是「潛在」此詞有誤導成份。考證以往案件，可見加刑是基於實質風險，因此風險是指實質的散佈風險。

On the facts of the present case, taking into account that 5.47 grammes of “ice” was involved, we consider that, notwithstanding the applicant’s six previous convictions for possession of dangerous drugs, the appropriate starting point should be 15 months rather than 18 months.
本庭認為以本案的案情而言，考慮了涉案的冰毒是5.47 克，即使申請人有6 次管有危險藥物前科，恰當的量刑起點應是15 個月，而非18 個月。

The applicant has no previous convictions for trafficking in dangerous drugs.  His multiple convictions for possession of dangerous drugs and the fact that he had been sentenced to a DATC shows that he was a genuine drug user.  At the material time, he had a regular job and the “ice” in question was found by the police at his home.  Apart from one bag containing a small quantity of “ice” on the table, there was another bag hidden in a jacket pocket.  The presence of 42 re-sealable plastic packets was suspicious but, in view of the quantity of the drug and the circumstances in which it was found at the applicant’s home, the actual risk of the drug being disseminated in society was low.  As the applicant had by Counsel submitted to Deputy Judge Sham that his girlfriend also abused “ice”, the risk involved was that the applicant and his cohabiting girlfriend would abuse the drug together.
申請人並無販運危險藥物的前科。他多次干犯管有危險藥物罪及曾被判往戒毒中心，可見申請人是真正的吸毒者。申請人犯案時有固定職業，在家中被警員發現冰毒。除了一包少量冰毒在枱上，另外一包藏於衣袋內。雖有42 個可再封口膠袋，情況令人懷疑，以涉案的份量及在家找到冰毒此情況而言，涉案冰毒散佈於社會此實質可能性不大。基於申請人透過其代表大律師向沈‍法官指出申請人女友亦是濫用冰毒者，本案的風險是申請人會與他的同居女友一同濫用冰毒。

In all the circumstances of the present case, we consider an enhancement of 9 months appropriate.
在本案的所有情況下，本庭認為恰當的加刑幅度是9 個月。

The applicant was entitled to the usual one-third discount on account of his guilty plea.  The appropriate sentence should be 16 months’ imprisonment.
申請人坦白認罪，可得三份之一刑期扣減。恰當的刑期應為16 個月。

For the above reasons, we grant leave to appeal.  Treating the hearing as the appeal itself, we allow the appeal, set aside the sentence of 20 months’ imprisonment and substitute therefor a sentence of 16 months’ imprisonment.
基於上述理由，本庭批准上訴許可，並視之為正式上訴。上訴得直，20 個月的刑期撤銷，改判16 個月監禁。

Miss Eva Chan, Senior Public Prosecutor (Acting) of the Department of Justice, for the Respondent
答辯人：由律政司署理高級檢控官陳冰華代表香港特別行政區

Mr Nelson Lam, instructed by F. H. Ho & Co. and assigned by the Legal Aid Department, for the Applicant
申請人：由法律援助署委派何福海律師行轉聘林漢環大律師代表