Hon Yeung JA (giving the judgment of the Court):
上訴法庭法官楊振權頒發上訴法庭判決書：

Introduction
引言

On 14 August 2008, the Applicant Kan Kong Fai pleaded guilty before District Judge Andrew Chan to one count of manufacturing dangerous drugs and was sentenced to 4 years’ imprisonment. He now applies for leave to appeal against sentence.
2008年8月14日，申請人簡光輝在區域法院法官陳慶偉席前承認一項製造危險藥物罪，結果被判入獄4年。申請人不服判刑，現提出上訴許可申請，要求獲准就判刑上訴。

Brief facts
案情摘要

The offence took place in Room 914, Metropark Hotel Mongkok, 22 Lai Chi Kok Road, Kowloon. At about 9:30 p.m. on 14 January 2008, police officers entered and searched the room, in which the Applicant and two other persons were present. The officers seized from the room cocaine weighing 4.39 grammes in total as well as other drug manufacturing paraphernalia including an electronic scale, lighters, spoons, glass beakers, plastic cups, knives, plastic bowls, plastic bags containing soda powder, lighter refills and a wad of transparent resealable plastic bags. Traces of cocaine were found on the aforesaid paraphernalia.
案發地點是九龍荔枝角道22號旺角維景酒店914號房。2008年1月14日晚上約9時30分，警員進入該房間搜查時，發現申請人和另外兩名人士在內。警員在房間內搜獲共重4.39克的可卡因和其他製造毒品用具，包括電子磅、打火機、匙羹、玻璃杯、膠杯、刀，膠兜、內有梳打粉的膠袋、打火機補充劑和一疊透明可再封膠袋等。上述製毒用具都有微量可卡因。

The Applicant admitted that, having obtained cocaine from others, he would mix the drug with soda powder in a glass beaker and heat the mixture for 10 to 15 minutes. Upon cooling down, the mixture would become ‘crack cocaine’. The Applicant further said that he would package the ‘crack cocaine’ and distribute it to customers.
申請人承認從他人取得可卡因後，會將可卡因混合梳打粉放入玻璃杯內加熱10至15分鐘，混合物冷卻後便成為“霹靂可卡因”。申請人更表示會將製成的“霹靂可卡因”包裝及分發給客人。

The Government Chemist opined that the manufacturing method admittedly used by the Applicant was a common way of making ‘crack cocaine’ in Hong Kong, and that the paraphernalia seized had also been used to process cocaine.
根據政府化驗師的意見，申請人承認的製毒方法和香港流行製造“霹靂可卡因”的方法相符，而搜獲的其他用具亦確曾用作處理可卡因。

The Applicant’s background
申請人的背景

The Applicant, aged 29, has 8 previous convictions, 3 of which relate to dangerous drugs, namely, conspiracy to traffic in dangerous drugs, trafficking in dangerous drugs and possessing dangerous drugs, and the others are mainly in respect of offences involving dishonesty.
申請人29歲，有8次犯罪記錄，其中3次與毒品有關，分別是串謀販毒、販毒及藏毒，其餘罪行大部份涉及不誠實行為。

The trial judge’s basis for sentence
原審法官的判刑基礎

The trial judge pointed out the present case involved an insignificant quantity of drugs and that, given the small scale of the manufacturing operation, the quantity of drugs produced would be limited. The judge referred to the case of HKSAR v Wong Ping Kay (CACC 495/2001) in which the Court of Appeal adopted a starting point of 10 years’ imprisonment for manufacturing 14.88 grammes of heroin, which was roughly 1.8 times of the starting point for trafficking in the same quantity of drugs.
原審法官指出案件涉及毒品的份量並非巨大，生產規模亦屬細小，故產量不會高。原審法官援引香港特別行政區 訴 王炳基（CACC 495/2001）案，指出上訴庭將製造14.88克海洛英的量刑基準定為10年，即約是販運同等份量毒品的量刑基準的1.8倍。

The trial judge pointed out that trafficking in 4.39 grammes of cocaine should attract a starting point of 40 months’ imprisonment. The judge multiplied this by the aforesaid figure of 1.8 and arrived at a starting point of 72 months (i.e. 6 years) for the Applicant’s drug manufacturing offence. The term was reduced by one-third discount to 4 years on account of the Applicant’s guilty plea. The judge considered the starting point of 6 years appropriate after taking into account the quantity of drugs involved, the scale of operation, the Applicant’s role and his previous convictions.
原審法官指出販運4.39克可卡因的量刑基準應為40個月監禁。原審法官以上述1.8倍作為針對申請人製毒罪的判刑而得出72個月（即6年）的量刑基準，並因申請人認罪而將刑期扣減三份一至4年。原審法官認為以涉案毒品份量、製毒規模、申請人扮演的角色及其犯罪記錄，6年是適當的量刑基準。

Grounds of appeal
上訴理由

Ms Chow, Counsel for the Applicant, agrees that the sentence for manufacturing of dangerous drugs should be more severe than that of trafficking in the same quantity of drugs, but argues that the former should not be as much as 1.8 times of the latter. Ms Chow stresses that the defendant in Wong Ping Kay was charged with both manufacturing and trafficking and 14.88 grammes of drugs were involved. Furthermore, as the defendant had been residing at the address in question for almost one year, he had probably been involved in drug manufacturing for a longer period of time. Ms Chow emphasizes that, compared with those of the defendant in Wong Ping Kay, the Applicant’s previous convictions are not serious.
代表申請人的周慧珠大律師同意製毒罪的判刑應比販運同份量毒品的判刑高，但不應達1.8倍。周大律師強調王炳基案的被告人面對製毒和販毒兩項罪行而涉及毒品份量達14.88克，他參予製毒的時間亦可能較長，原因是他在有關地址居住了近1年。周大律師強調申請人的犯罪記錄和王炳基案被告人的犯罪記錄相比屬較輕。

Ms Chow points out there are other decided cases which indicate that the starting point for drug manufacturing is only 1.6 times that for trafficking in the same quantity of drugs. She further submits that the Applicant should not be subject to a starting point which exceeds 5 years.
周大律師指出有其他案例顯示製毒的量刑基準只是販運同等份量毒品的量刑基準的1.6倍。周大律師指適用於申請人的量刑基準不應超越5年監禁。

In her written submission, Ms Chow also cites the case of HKSAR v Chan Fai [2004] 3 HKLRD 465 and points out that the defendant in that case, who admitted that he would manufacture 20 kilogrammes of ketamine, was eventually sentenced to 8 years’ imprisonment, which was the same as the starting point applicable at that time to trafficking in 20 kilogrammes of ketamine.
在其書面陳述，周大律師亦援引香港特別行政區 訴 陳輝 [2004] 3HKLRD 465案。周大律師指出該案的被告人承認要製造20公斤“K仔”，他最終的8年判刑亦和販運20公斤“K仔”的當時適用量刑基準相同。

Discussion
討論

In the aforesaid case of Chan Fai, although the defendant admitted that he would manufacture 20 kilogrammes of ketamine, the police were in fact unable to find any manufactured drug. All they found were large quantities of paraphernalia and raw materials for making drugs.
在上述陳輝案，雖然被告人承認要製造20公斤“K仔”，但事實上警方並沒有搜出任何已製成的毒品，而只是搜出大量的製毒公具及原料。

The starting point for drug trafficking is mainly a reflection of the quantity of drugs involved. In drug manufacturing cases, the quantity of drugs seized may give an idea of the scale of the manufacturing operation but is not the sole or dominant consideration in determining the starting point.
販運毒品罪行的量刑基準主要反映毒品的份量。在製毒案件，搜獲的毒品份量能顯示製毒規模的大小，但並非決定量刑基準的唯一或主要的因素。

In the present case, although the police seized only 4.39 grammes of cocaine, the paraphernalia and raw materials in question could be used for producing a large quantity of ‘crack cocaine’. The facts of the case showed that the process of manufacturing ‘crack cocaine’ was simple and fast.
在本案雖然警方只搜獲4.39克可卡因，但涉案的用具及原料是可以製造較大份量的“霹靂可卡因”。案情顯示製造“霹靂可卡因”，過程簡單，快捷。

Drug manufacturing comprises certain processes by which raw materials are converted into drugs ready for consumption, which are then supplied to drug addicts. Therefore, the offence of drug manufacturing is the most serious of all drug-related offences.
製毒是將原料透過一些程序變成可吸食的毒品，供應吸毒者，因此以毒品案件而言製毒罪行是最嚴重的。

In R v Cheung Wai Kwong & Another [1997] HKLRD 344, Chan J (as he then was) rightly pointed out that the offence of drug manufacturing was much more serious than trafficking in or possessing drugs and warranted a heavier sentence. He also emphasized that in determining the proper sentence for the offence of drug manufacturing, the factors to be considered included the quantity of drugs produced, the scale of operation, the capacity of equipment, the output of drugs at the manufacturing station, and the role played by the accused.
在R v Cheung Wai Kwong & Another [1997] HKLRD 344案，陳兆愷法官正確地指出製毒罪行較販毒或管有毒品罪行更為嚴重，亦須處以更嚴唆的刑罰。陳兆愷法官亦強調在決定製毒的刑罰時，要考慮的因素包括製成的毒品份量、運作的規模、儀器的能量、工場的生產量和被告人扮演的角色。

We agree that the scale of production in the present case was small and the output of drugs was not necessarily very large. However, in view of the manufacturing process involved and the quantity of soda powder found, the Applicant would have been able to manufacture a substantial quantity of drugs. Furthermore, the Applicant had played a major role in the manufacturing process and had confessed to the police officer that the manufacturing process was basically conducted by him from beginning to end.
本庭同意本案的製毒規模細小，產量亦不一定會很高。但以涉案的製毒過程和搜獲梳打粉的份量，申請人是可以製造份量不少的製成品的。再者，申請人在製毒過程扮演主要角色，他向警員招認顯示他基本是個人全程參予製毒行為。

Ms Chow emphasizes that when the Applicant was arrested, the room in question had been hired for only 2½ hours. However, it should not be overlooked that the use of the hotel room by the Applicant to manufacture the drugs showed that the offence was planned and that its purpose must have been to make it more difficult for the police to detect the offence. On the Applicant’s description of the drug manufacturing process, he could have repeatedly manufactured ‘crack cocaine’ in a span of 2½ hours.
周大律師強調申請人被拘捕時，涉案房間被租用時間只有約2小時30分，但本庭不能忽視申請人利用酒店房間進行製毒罪行，顯示其罪行是有計劃的，其目的亦必然是加大警方破案的困難。根據申請人描述的製毒過程，2小時30分亦足以容許申請人多次製造“霹靂可卡因”。

The Applicant is not a first offender. He has many previous convictions, some of which are in respect of serious offences such as conspiracy to traffic in dangerous drugs, trafficking in dangerous drugs and possessing dangerous drugs.
申請人亦非初犯，他有多次案底，其中更包括串謀販毒、販毒和藏毒等嚴重罪行。

In any event, as far as the offence of drug manufacturing is concerned, an appropriate minimum starting point is 6 years’ imprisonment irrespective of the quantity of drugs seized, in order to reflect the gravity of the offence.
無論如何，以製毒罪行而言，不論搜獲毒品多少，6年量刑基準可被視為最低量刑基準，以反映該等罪行的嚴重性。

We reiterate what Roberts CJ expressly stated in The Queen v Wong Chun Ping & Others [1984] HKLR 247, at 257H.
本庭再複述前最高法院首席法官羅拔士在The Queen v Wong Chun Ping & Others [1984] HKLR 247，在257頁H所作的明確聲明。

We suggest for the consideration of courts that only in exceptional cases, for instance if it is clear that the capacity of the equipment is very small, should a court consider a sentence of less than ten years’ imprisonment, on a conviction for manufacturing dangerous drugs. Much higher sentences should be imposed if it is shown that the manufacturing station had been producing or was likely to produce substantial quantities of DD.
“本庭作出以下建議，供其他法庭參考。除非案件極為例外，如涉案製毒工具的能量明顯極小，法庭在裁定製毒罪成時，不應考慮少於10年的監禁。如製毒工場已製成或大可能會製成大量毒品，則判刑更應大幅度提高。”

Taking into account the scale of the manufacturing operation, the quantity of drugs seized, the role played by the Applicant and his previous convictions, the starting point of 6 years adopted by the trial judge and the ultimate sentence of 4 years passed by him are not manifestly excessive. There is no room for reduction of sentence.  We dismiss the Applicant’s application for leave to appeal against sentence.
以本案製毒的規模，搜獲毒品份量、申請人扮演的角色及其犯罪記錄，原審法官採納的6年量刑基準及最終的4年判刑都絕非明顯過高，並無扣減餘地。本庭駁回申請人要求減刑的上訴許可申請。

Ms Olivia Tsang, Senior Public Prosecutor, for the Respondent.
答辯人：由律政司高級檢控官曾藹琪代表。

Ms Monica Chow, instructed by Wong & Co. on assignment by the Legal Aid Department, for the Applicant.
申請人：由法律援助署委派王吉顯律師行轉聘周慧珠大律師代表。