Hon Yeung VP (giving the Reasons for Judgment of the Court):
高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：

Introduction
引言

On 30 November 2016, the applicant (Wong Chun Hin) appeared before Li J (the trial judge) and pleaded guilty to one charge of conspiracy to traffic in a dangerous drug. He was then sentenced to 17 years and 7 months’ imprisonment. The applicant applied for leave to appeal against sentence. At the end of the hearing, we granted the applicant leave to appeal against sentence and allowed his appeal. The 17 years and 7 months’ imprisonment imposed on the applicant was reduced to one of 16 years and 7 months. Below are the reasons for our judgment.
2016年11月30日，申請人（王俊軒）在高等法‍院原訟法庭法官李瀚良（原審法官）席前承認了一項串謀販運危險藥物罪後，被判處入獄17年7個月。申請人不服判刑，並提‍出上訴許可申請，要求獲准就判刑上訴。經聆訊後，本庭批准申請人就判刑上訴，並裁定其上訴得直。本庭將申請人被判的17年7個月刑期減至16年7個月。以下是本庭的判案理由。

The Facts
案情

On 28 April 2015, police officers intercepted a New Territories taxi KK9691 in the car park of Sun Kong Hotel, Yuen Long. At the time, apart from the driver, Tse Tung Sing [transliteration] (Tse) was in the front passenger seat of KK9691, the other passenger was in the rear seat, and next to him/her was a cardboard box containing a carton for a bread maker and other miscellaneous items. Inside the carton containing the bread maker, there was another carton containing two packs of crystalline solid of “ice” with a street value of around $430,000. The total weight of the crystalline solid in question was 997 grammes containing 976 grammes of “ice”. The English words “Refined Chinese Tea” were printed on the outside of the carton containing the “ice” in question.
2015年4月28日，警員在元朗新港酒店的停車場截停一輛新界的士KK9691。當時，除了司機外，謝東升（謝）坐在KK9691前排乘客位，另一名乘客坐在後座，其身旁有一個紙皮箱，內載有一個麵包機的紙箱和其他雜物。載有麵包機的紙箱內再有一個紙盒，內有兩包巿價約為43萬元的“冰‍毒”結晶體。該批結晶體共重997克，內含共976克“冰毒”。載有該批“冰毒”的紙盒外，印有“Refined Chinese Tea”的英‍文字。

Tse admitted that out of momentary greed, he agreed to send out the “ice” by SF Express for “Lok Chai” [transliteration] for a reward of a few thousand dollars. Afterwards, Tse clarified that he, in fact, was assisting the applicant in drug trafficking. He said after he had come to know the applicant in early March 2015, the applicant indicated that he could give him a job that would earn him quick money but would involve dangerous drugs. Afterwards, on 27 April 2015, Tse went to a room in Sun Kong Hotel rented by another defendant. Following the applicant’s instructions by phone, Tse first packed the “ice” in question in a carton, left the carton in the hotel room and then returned home. The following day, Tse asked a friend to go with him to the hotel to retrieve the carton containing the “ice” intending to send it to Australia by post.
謝承認自己因一時貪心同意替“樂仔”透過“順豐速運”將“冰毒”寄出，以取得數千元的報酬。其後，謝澄清他其實是協助申請人“販毒”。他指在2015‍年3月初認識申請人後，申請人表示可以給他賺快錢但涉及毒‍品的工作。其後在2015年4月27日，謝前往另一名被告人租用的‍新‍港酒店房間，先按申請人透過電話的指示，將涉案的“冰‍毒”包裹在紙箱內，並將紙箱留在酒店房間，然後回‍家。翌日，謝叫一名朋友和他一起前往酒店取回載有“冰‍毒”的紙箱，並打算將該紙箱寄往澳洲。

Under arrest and caution, the applicant admitted that he “told the young chap to send the ‘ice’ overseas by post”. In a video-recorded interview with police officers, the applicant further admitted that he knew Tse, and that in the incident he was the one who gave Tse instructions for dealing with the dangerous drugs. The applicant said that the “ice” in question came from “Fai Chai” [transliteration]. On Fai Chai’s instructions, he told Tse to fetch and pack the dangerous drugs and further send them to Australia by post. The applicant said Tse and he travelled by car to Sun Kong Hotel, and he intended to instruct Tse to rent a room. However, as Tse was under the age of 18, he had to get another defendant to rent a room. The applicant picked up that defendant, took him to Sun Kong Hotel and gave him the money to rent a room. After that defendant had succeeded in renting a room, the applicant told Tse to pack the “ice” in the room and put the packed dangerous drugs in a carton to be sent to Australia by post the following day.
申請人被捕後及在警誡下承認他是“叫條「𡃁仔」寄啲冰毒去外國嘅”。申請人和警員進行錄影會面時，進一步承‍認他認識謝，亦承認在事件中他是向謝發出處理毒品指示的人。申請人表示涉案的“冰毒”源自“輝仔”，而他是按“輝仔”的指‍示，吩咐謝去拿取毒品及將毒品包裝，再郵寄至澳‍洲。申請人指他和謝一起乘車前往新港酒店，並打算指示謝租‍用房間，但因為謝未滿18歲，故要找另一名被告租用房‍間。申請人將該名被告人接載到新港酒店，並給他金錢租‍用房間。該名被‍告人成功租房後，申請人便吩咐謝在房間包裝“冰毒”，並將包裝好的毒品放在紙箱內，以便在翌日寄往澳洲。

At the time of the offence, Tse was 17 years old, educated up to Form 1, not a drug addict and with no criminal record. The applicant was 20 years old with 9 criminal convictions including serious offences of possession of dangerous drugs, offering to traffic in a dangerous drug, wounding with intent, etc. He had been sentenced to imprisonment three times. In mitigation, it was admitted that the applicant was a drug addict. It was accepted that the applicant committed the offence of offering to traffic in a dangerous drug whilst he was on bail for the present case. In fact, the applicant committed the offence in the present case whilst he was on bail for offering to traffic in a dangerous drug offence.
案發時，謝17‍歲，受教育至中一，沒有毒癮，亦沒有犯罪記錄；而申請人則是20歲，有9次犯罪記錄，包括藏‍毒、提出“販毒”、有意圖傷人等嚴重罪行，並曾3次被判處監‍禁。求情時，辯方承認申請人有毒癮，亦同意申請人是在本案保釋期間干犯該宗提出“販毒”罪行。但事實上，申請人是在干犯該宗提出“販毒”案保釋期間干犯本案。

Mitigation
求情理由

It was submitted that at the time of the offence, the applicant was young, under the age of 21, so he could be easily influenced. It was claimed that the mastermind was someone else, and the applicant was used by the other mastermind for drug trafficking activities.
辯方指案發時，申請人年輕，不足21歲，故容易受人唆擺。辯方聲稱案件的主謀另有其人，而申請人是被其他主謀利用進行“販毒”活動。

It was accepted that the case involved aggravating factors like international crime and the use of a minor to commit crime. However, the defence was of the view that the level of enhancement should not be too high for the reason that the applicant was also used by others to commit the crime.
辯方同意案件涉及跨國犯案和利用未成年人‍士犯案等加重罪責的因素，但認為加刑幅度不應過高，原因是申請人亦是被人利用犯案。

Decision of the trial judge
原審法官的裁決

In accordance with the sentencing guidelines set down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the trial judge, on the basis of the trafficking in 976 grammes of “ice”, considered the starting point to be 21 years and 11 months. The trial judge considered that the two factors of an international crime and use of a minor to commit crime should enhance the sentence by 1 year and 6 months and 3 years respectively. In the result, the total starting point applicable to the applicant was 26 years and 5 months. The trial judge reduced the sentence by one third to 17 years and 7 months on account of the applicant’s guilty plea.
原審法官根據HKSAR v Tam Yi Chun [2014] 3 HKLRD 691案定下的判刑指引，認為以販運976克“冰‍毒”為基礎，量刑基準應為21年11個月。原審法官認‍為‍跨國犯案和利用未成年人士犯案這兩項因素應分別加刑1‍年6個月和3年，故適用於申請人的總量刑基準為26年5‍個月。原審法官因申請人認罪而將刑期扣減三分一至17‍年7個月。

Ground of appeal
上訴理由

Mr Bernard Chung, counsel for the applicant, agreed that it was correct to adopt the starting point of 21 years and 11 months and to enhance the sentence by one and a half years for an international crime. However, the further enhancement of 3 years by the trial judge because of the use of a minor to commit crime was too high. That resulted in a final sentence which was manifestly excessive. In support of his stance, Mr Chung cited HKSAR v Chan Ka Shing [2012] 2 HKLRD 214 and HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017. It was emphasized that the four and a half years’ enhancement adopted by the trial judge in respect of the two aggravating factors, at a level of enhancement of 21%, was too high. Given that the dangerous drug in question was “ice” of less than 1,000 grammes, the total starting point of 26 years and 5 months was too severe. Mr Chung asked this Court to reduce the applicant’s sentence and to set the guideline for the level of enhancement for the use of a minor to commit crime.
代表申請人的鍾偉強大律師同意21年11個月的量刑基準和因跨國犯案加刑一年半正確，但認為原審法官因申請人利用未成年人士犯案這因素而再加的3年刑期屬過高，而最終判刑亦因此屬明顯過重。鍾大律師援引香港特別行政區訴陳嘉成 [2012] 2 HKLRD 214、HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017等案支持他的立場。鍾大律師強調原審法官以兩項加刑因素而加刑4年半，幅度達21%，屬過高，而以涉案毒品不足1,000克“冰毒”， 26年5個月的總量刑基準亦是過份嚴苛。鍾大律師要求本庭扣減申請人的刑期及就利用未成年人犯案這因素的加刑幅度作出指引。

Discussion
討論

Section 56A of Dangerous Drugs Ordinance, Cap 134 of the Laws of Hong Kong, expressly provides that use of a minor in drug trafficking entitles the court to pass a more severe sentence. The provision, however, does not specify the level of enhancement of sentence.
香港法例第134章《危險藥物條例》第56A條訂明任何人藉未成年‍人“販毒”時，法庭可以判處更重的刑罰，但條例沒有指‍明加刑的幅度。

This Court should first point out that use of a minor in drug trafficking is an extremely evil act for the reason that it would result in the conviction, long-term imprisonment and loss of future prospects of the mentally immature minor who is being used. A robust approach must be taken against such an evil act to protect minors from being harmed.
本庭應先指出，利用未成年人士“販毒”是極為邪惡的行為，原因是那些被利用心智未成熟的未成年人士會因此而被定罪及面對長期監禁，亦會前途盡失。法庭必須對該些邪惡行為迎‍頭痛擊，避免未成年人士受害。

In considering the range of enhancement, the court is required to take account of the particular circumstances of the individual case. The factual background relating to the enhancement of sentence in respect of this factor can vary to a great extent, and therefore it is not appropriate for the court to give explicit guidelines for the levels of enhancement. As a drug trafficking offence itself is going to result in an extremely long sentence, restraint should be exercised on the range of enhancement arising from other aggravating factors in order to avoid an overly severe sentence.
在考慮加刑幅度時，法庭須將個別案件的特殊因‍素考慮在內。和該加刑因素有關的事實背景可以差別甚大，故法庭不適宜就加刑幅度作出明確指引。但考慮到“販毒”罪行本身已會導致極長的刑期，其他加刑因素所導致的加刑幅度應有所約束，避免過度嚴苛的刑期。

At the time of the offence, the applicant, who was under the age of 21, was still young. In so far as the background of the case is concerned, it was highly likely that he was also used by others to commit the crime. If in the present case the applicant’s sentence is enhanced by 3 years because of his using a minor in drug trafficking, then the enhancement in sentence given to a mastermind of a drug trafficking syndicate using minors in drug trafficking may have to be many times more.
案發時，申請人不足21歲，仍屬年輕。以案件的背景而言，他極可能亦是被他人利用而犯案。假若在本案因申請人利用未成年人士“販毒”，而將其刑期增加3‍年，則“販毒”集團的頭子利用眾多未成年人士“販毒”可導致的加刑幅度可以是以倍計。

In our view, such a way to deal with the matter is questionable. We reiterate that in Chan Ka Shing the Court of Appeal has stated as follows:
本庭認為上述處理方法有可相榷之處。本庭重申上訴法庭在陳嘉成案作出過以下的表述：

“Drug trafficking is of course a very serious offence; no offender should get off lightly. Using a minor in drug trafficking is even more heinous. Anyone would find the crime of drug trafficking abominable; however, when passing or enhancing the sentence, the court has still to exercise restraint to avoid increasing the sentence without limit, thus causing confusion and unfairness.”
“販運毒品，當然是極為嚴重的罪行，犯案者都不應獲輕判。利用未成年人士販運毒品更屬罪加一等。任何人對販毒罪行都會感到深惡痛絕，但法庭在判刑及加刑時，仍須有所約束，避免判刑無限度地提升，造成混亂及不公。”

We reiterate that a serious drug trafficking offence will itself result in an extremely long term of imprisonment. If the starting point taken for sentence is increased substantially due to other aggravating factors, the ultimate sentence will cause a defendant, in particular a young one, to face an overly severe sentence.
本庭重申嚴重“販毒”罪行本身已會導致極長的監禁年期。如再因其他加重罪責因素而將量刑基準大幅度增加，則最終的判刑會導致被告人，特別是年輕的被告人，要面對過份嚴苛的判刑。

Having considered the incident from the above viewpoint, we agreed that the enhancement of 3 years imposed on the applicant due to his using a minor in drug trafficking was too high, particularly when the starting point taken for sentence was already 21 years and 11 months, and the sentence was also increased by 1 year and 6 months due to the cross-border element. In our view, in so far as the background of the present case is concerned, an enhancement of 3 years in the total sentence is sufficient to reflect the two aggravating factors, namely the cross-border element and the use of a minor in drug trafficking. We consider an enhancement of 3 years of the total sentence (about 14% of the starting point), due to those two aggravating factors, to be appropriate.
從以上角度來考慮事件，本庭同意申請人因利用未‍成年人士“販毒”而要面對的3年加刑屬過高，特別是針對申請人的量刑基準已經是21年11個月，而刑期亦因跨境犯案這因素而提升了1年6個月。本庭認為以本案的背景而言，3年的總刑期加幅已足以反映跨境犯案和利用未成年人士“販毒”這兩項加刑因素。本庭認為該兩項加刑因素導致的三年總刑期加幅（約為量刑基準的14%）是合適的。

Accordingly, the total starting point taken for the sentence applicable to the applicant should be 24 years and 11 months. The applicant entered a timely plea of guilty and was entitled to a one-third discount on the sentence he would otherwise receive. The proper sentence should be 16 years and 7 months.
因此，適用於申請人的總量刑基準應為24年11個月。申請人適時認罪理應取得三分一的刑期扣減，其適當的判刑應為16年7個月。

We therefore granted the applicant leave to appeal against sentence. We allowed his appeal and reduced his sentence from 17 years and 7 months to 16 years and 7 months.
因此，本庭批准申請人就刑期上訴。本庭裁定申請人上訴得直，並將其判刑由17年7個月減至16年7個月。

Bernard Chung, instructed by K. B. Chau & Co., Solicitors, assigned by the Legal Aid Department, for the applicant
答辯人：由律政司高級檢控官黃澄代表。

Lilly Wong, Senior Public Prosecutor, of the Department of Justice, for the respondent
申請人：由法律援助署委派周啟邦律師事務所轉聘大律師鍾偉強代表。