The two applicants Lan Xianxin (Lan) and Li Qichang (Li) pleaded guilty before District Judge C. P. Pang (the trial judge) to one charge of importing a controlled chemical not under and in accordance with a licence and one charge of possession of a controlled chemical respectively.  Lan and Li were respectively sentenced to 4 years 8 months’ and 2 years 8 months’ imprisonment.
兩名申請人蘭先炘（蘭）和黎其昌（黎）在區域法院法官彭中屏（原審法官）席前分別承認一項並非根據與按照牌照的規定而輸入受管制化學品罪和管有受管制化學品罪。蘭和黎分別被判入獄4年8個月和2年8個月。

Both applicants were aggrieved by the sentences, and applied for leave to appeal against sentence.  Li’s application is out of time, so he also applied to the Court for an extension of time.  After hearing, this Court dismissed both applicants’ applications for leave to appeal against sentence.  Our reasons are as follows.
兩名申請人都不服判刑，提出申請，要求獲准就判刑上訴。黎的申請已過期，因此他同時要求法庭延展他的申請期限。經聆訊後，本庭駁回兩名申請人的判刑上訴許可申請。以下是本庭的判案理由。

Prosecution Case
控方案情

In the afternoon on 1st November 2013, Lan arrived at the Hong Kong International Airport on a flight from Cairo, Egypt via Doha.  He collected two suitcases and took an Airbus to the Sheung Shui MTR Station, where another male (Wu Yangwang) (transliteration) approached him and chatted with him.  Lan gave one of the suitcases to Wu Yangwang, and the two went to the taxi stand nearby.  They put the two suitcases into the taxi boot, and Wu Yangwang got on the taxi, while Lan took the MTR to Lo Wu.
2013年11月1日下午，蘭乘坐航機從埃及開羅經杜哈抵達香港國際機場。他拿取了兩件行李，登上機場巴士前往上水港鐵車站。在上水港鐵車站，有另一男子（吳仰旺）走近蘭並和他聊天。蘭將其中一件行李交了給吳仰旺後，兩人前往附近的士站。他們將兩件行李放進的士車尾箱後，吳仰旺登上的士，而蘭則乘坐港鐵前往羅湖。

The taxi Wu Yangwang took stopped at the Cambridge Plaza, Sheung Shui.  He collected the two suitcases, and walked to the lift lobby of the Cambridge Plaza.  Then, Li approached Wu Yangwang, and the two of them each took one suitcase and left.
吳仰旺乘坐的的士在上水劍橋廣場停下。他提取了兩件行李後，步行前往劍橋廣場的電梯大堂。其後黎走近吳仰旺後兩人各自拿起一件行李離開。

Customs Officer(s) who had been keeping the whole course of events under surveillance intercepted Li and Wu Yangwang, and opened for inspection in their presence the two suitcases they were carrying.  Each suitcase contained 24 bags of tablets in tinfoil packets disguised in Chinese tea leaf packages.
全程監視事件發展的關員截停黎和吳仰旺，並在他們面前打開他們攜帶的兩件行李檢查。每件行李內各有24袋以中國茶葉包裝作掩飾的錫紙包片劑。

Under caution, Li denied ownership of the suitcase(s) in question, and said that (he) did not know Wu Yangwang.  However, Li’s mobile phone contained photographs showing some medicine bottles with outer labels of pseudoephedrine and a large quantity of tinfoil packets.
警誡下，黎否認擁有涉案行李，亦表示不認識吳仰旺。黎的手提電話內卻有一些照片，照片顯示一些貼有假麻黃碱外層標籤的藥用瓶和大量錫紙包。

Lan was also arrested at the Lo Wu Departure Hall.  Under caution, he claimed to be in the automobile parts business, and admitted to having returned to Hong Kong from Egypt earlier.
蘭亦在羅湖離境大堂被拘捕。警誡下，他聲稱從事汽車零件生意，並承認較早前由埃及返港。

During the interview with the Customs Officers, Lan said that when he was returning to Hong Kong from Egypt, he got the two suitcases in question from an unknown foreigner outside the Egypt airport.  He admitted to bringing the two suitcases back to Hong Kong for a remuneration of 1,000 renminbi.  He also said that he later received instruction to go to Sheung Shui and to hand the suitcases to Wu Yangwang, then headed to Lo Wu, planning to leave Hong Kong.
和關員會面時，蘭指他由埃及返港時，在埃及機場外從一名不認識的外籍人士取得涉案兩件行李。蘭承認將該兩件行李帶返香港以取得1,000元人民幣的酬勞。蘭亦指他其後接獲指示前往上水將行李交給吳仰旺後便前往羅湖，打算離開香港。

On the other hand, Li said that a friend named Xiao Yong Ge (transliteration) told him to pick up something from a person named Xiao Wu (transliteration), and that he was arrested while assisting Xiao Wu in carrying the suitcase(s).  Li denied knowledge of the nature of the item(s) inside the suitcase(s).
黎則表示有一名叫小勇哥的朋友吩咐他從一名叫小吳的人處拿取一些物品，而當他協助小吳拿行李時卻被捕。黎否認知悉行李內物件的性質。

The suitcase that Li took contained 24 bags of tablets, weighing 25.82 kilogrammes and containing 5.63 kilogrammes of pseudoephedrine.  The two suitcases in question contained 48 bags of tablets, weighing 51.48 kilogrammes and containing 11.89 kilogrammes of pseudoephedrine.
黎拿走的行李內的24袋片劑共重25.82公斤，內含5.63公斤假麻黃碱。涉案兩件行李內48袋片劑則共重51.48公斤，內含11.89公斤假麻黃碱。

According to the testimony of the expert witness for the prosecution, pseudoephedrine is capable of being used in the manufacture of “ice”, and every 10 kilogrammes of pseudoephedrine can produce about 5.5 kilogrammes of “ice”.  Therefore, the 5.63 kilogrammes and 6.26 kilogrammes contained in the two suitcases in question can produce 3.1 kilogrammes and 3.4 kilogrammes of “ice” respectively.
根據控方專家證人的證供，假麻黃碱可以用作製造“冰毒”，每10公斤的假麻黃碱可製成大約5.5公斤“冰毒”。因此，涉案兩個行李內的5.63公斤和6.26公斤可分別製成3.1公斤及3.4公斤“冰毒”。

However, the expert agreed that the above statement was based on an assumption that the refining process would be 100% successful.  Hence, the actual quantity of “ice” that could have been manufactured from the pseudoephedrine in question is unknown.
但專家同意上述說法是建基在百分百成功提煉的假設，故實際上涉案假麻黃碱能製造出“冰毒”的分量屬未知之數。

Pseudoephedrine is a controlled substance.  To prevent its use for illegal purposes, the Ordinance provides for illegal importation and possession of pseudoephedrine the maximum penalty of a fine of $1 million and imprisonment for 15 years, for the obvious reason that pseudoephedrine is a raw material in the manufacture of “ice”.
假麻黃碱是受管制物質，要避免它們作非法用途，條例規定非法輸入及管有假麻黃碱的最高刑罰是罰款100萬元及監禁15年，原因明顯是假麻黃碱是製造“冰毒”的原材料。

Lan admitted that he knew that the two suitcases in question contained pseudoephedrine, and believed that the pseudoephedrine can be used in the manufacture of dangerous drugs.  However, he said that he did not know the exact use of them, and did not know, nor had grounds to believe, that they were to be used in the manufacture of “ice”.
蘭承認自己知悉涉案兩個行李內載有假麻黃碱，亦相信該些假麻黃碱可以用作製毒。但他表示不知道它們的確實用途，更不知道亦沒有理由相信它們是用作製造“冰毒”。

Li also admitted that he knew that the suitcase he carried contained pseudoephedrine, and agreed that he had grounds to believe that it would be used in illegal manufacture of dangerous drugs.
黎亦承認自己知悉所攜帶的行李內有假麻黃碱，亦同意他有理由相信它是會用作非法生產毒品。

The Trial Judge’s Reasons for Sentence
原審法官的判刑理由

The trial judge rejected Lan’s claim that the pseudoephedrine in the suitcases was for feeding chicken. The trial judge found that the evidence was insufficient to prove that Lan knew that the dangerous drugs manufactured from pseudoephedrine would have been “ice”, but the reasonable inference was that Lan did know that the pseudoephedrine contained in the suitcases was for the manufacture of dangerous drugs.  In fact, counsel representing Lan at the trial accepted that Lan knew that the pseudoephedrine he imported into Hong Kong was capable of being used in the manufacture of dangerous drugs.  The trial judge noted that Lai admitted that he had reasonable grounds to believe that the substance he carried was for the manufacture of dangerous drugs.  He considered transportation or possession of substances capable of being used in the manufacture of dangerous drugs an extremely serious offence.  He cited HKSAR v Ho Ka Ming (transliteration) （香港特別行政區訴何家銘）(CACC425/2009), and with reference to that case, regarded the defendant’s understanding of the nature of the substance in question an important factor in the consideration of sentence.
原審法官不接納蘭所指有關行李內的假麻黃碱是用作餵雞。原審法官認為證據不足以證明蘭知悉用假麻黃碱製造的毒品會是“冰毒”，但合理的推論是蘭知悉行李內的假麻黃碱是用作非法生產毒品。事實上，原審時代表蘭的大律師同意蘭是知道他輸入香港的假麻黃碱是可以用來製造毒品的。原審法官指出黎承認自己有合理理由相信他攜帶的物質是用作生產危險藥物。原審法官認為運送或管有可用作非法生產危險藥物的物質是極為嚴重的罪行。原審法官援引香港特別行政區訴何家銘（CACC425/2009）案，並根據該案例認為被告人對涉案物質的性質有何認知是判刑的其中一個重要考慮因素。

The trial judge noted that Li was not involved in the importation of the pseudoephedrine in question, and while he was in possession of the pseudoephedrine, he only had reasonable grounds to believe, instead of knowing, that the pseudoephedrine would be used in the manufacture of dangerous drugs.  Further, he was younger than Lan.  Hence, his culpability was lower than that of Lan.
原審法官指出黎沒有參與輸入涉案的假麻黃碱，而他管有該些假麻黃碱時，只是有合理理由相信而非明知該些假麻黃碱會用作非法生產危險藥物，加上他較蘭年輕，故其罪責較蘭的罪責為輕。

The trial judge stressed that the 11.89 kilogrammes of pseudoephedrine which Lan imported for financial gain posed great harm to the society.
原審法官強調蘭為了金錢得益而輸入的11.89公斤假麻黃碱，對社會的禍害甚大。

The trial judge identified a proper starting point of 7 years’ imprisonment in respect of Lan.
原審法官認為針對蘭的適當量刑基準應為7年監禁。

The trial judge pointed out that the pseudoephedrine in Li’s possession, although only in the amount of 5.63 kilogrammes, was in a quantity that was capable of being manufactured into 3.1 kilogrammes of “ice”.  Having considered that Li was only concerned with half of the whole lot of pseudoephedrine, the trial judge identified a proper starting point of 4 years’ imprisonment in respect of Li.
原審法官指出黎管有的假麻黃碱，雖然只有5.63公斤，但該分量的假麻黃碱可以生產約3.1公斤“冰毒”。考慮到和黎有關的假麻黃碱只有全部假麻黃碱的一半分量，原審法官認為適用於黎的量刑基準為4年。

Since both applicants pleaded guilty, the trial judge reduced the sentences by one-third, reaching 4 years 8 months and 2 years 8 months respectively.
原審法官因為兩名申請人都認罪，故將刑期分別扣減三分一至4年8個月和2年8個月。

Grounds of Appeal
上訴理由

Mr P.Y. Lo, counsel for the applicants, considered that the starting point of 7 years adopted by the trial judge in respect of Lan was manifestly excessive.  Mr Lo stressed that Lan had only imported controlled chemicals against the law, and the evidence was insufficient to prove that such controlled chemicals would definitely be used in the manufacture of “ice”.
代表申請人的羅沛然大律師認為原審法官採納針對蘭的7年量刑基準屬明顯過高。羅大律師強調蘭只是違例輸入一些受管制化學品，而證據不足以證明該些受管制化學品必會用作製造“冰毒”。

Mr Lo emphasized that there was no evidence to prove the actual intended use of the chemicals imported by Lan, and there was also no evidence showing that the batch of chemicals would be exported out of Hong Kong.  Therefore, the trial judge should not have used the quantity of “ice” that could have been manufactured from the chemicals in question as a basis in passing sentence, and could only consider the potential risks in the possibility of such chemicals being used in the manufacture of “dangerous drugs”.
羅大律師強調沒有證據證明蘭輸入的化學品實際上會如何使用，亦沒有證據顯示該批化學品會輸出香港。因此，原審法官不應以涉案的化學品能生產的“冰毒”份量作為量刑的基礎，而只能考慮該些化學品有可能被用作生產危險 “毒品”的潛在風險。

In the above circumstances, Mr Lo took the view that the starting point of 7 years adopted by the trial judge in respect of Lan was excessive.
在上述情況下，羅大律師認為原審法官採納針對蘭的7年量刑基準過於嚴厲。

Mr Lo submitted that in similar cases, the Court has adopted much lower starting points than the trial judge.  In particular, Mr Lo cited HKSAR v Cao Yuhui & others (DCCC 823/2013), HKSAR v Xiao Chunming (DCCC 182/2014) and HKSAR v Wong Yi Ching (transliteration) （香港特別行政區訴王苡靜） (DCCC 917/2013) in support of his contention.  Mr Lo stressed that in Cao Yuhui, the defendant imported about 6 kilogrammes of pseudoephedrine, and the Court adopted a starting point of 3 years.  In Xiao Chunming, the defendant imported about 10 kilogrammes of pseudoephedrine, and the Court adopted a starting point of 4½ years.  In Wong Yi Ching, the defendant imported about 6 kilogrammes of pseudoephedrine, and the Court also adopted a starting point of just 4½ years.  Therefore, Mr Lo considered that the appropriate starting point for Lan should be 6 to 6½ years.
羅大律師指在同類案件，法庭採納的量刑基準較原審法官所採納的為低。羅大律師特別援引HKSAR v Cao Yuhui & others (DCCC 823/2013)、HKSAR v Xiao Chunming (DCCC 182/2014)和香港特別行政區訴王苡靜（DCCC 917/2013）等案支持其立場。羅大律師強調Cao Yuhui案的被告人輸入約6公斤的假麻黃碱，法庭採納的量刑基準為3年。Xiao Chunming案的被告人輸入約10公斤的假麻黃碱，法庭採納的量刑基準為4年半；而王苡靜案的被告人輸入約6公斤假麻黃碱，法庭採納的量刑基準亦只是4年半。因此，羅大律師認為適用於蘭的量刑基準應為6年至6年半。

Mr Lo stressed that Li was only asked by a friend to help Wu Yangwang carry the suitcase(s), and did not benefit from it.  Mr Lo submitted that the culpability of Li was much lower than that of Lan, hence the starting point of 4 years adopted by the trial judge for him was also excessive.
羅大律師強調黎只是受朋友所托協助吳仰旺拿行李，並沒有因而獲利。羅大律師指黎的罪責遠較蘭的輕，因此原審法官施用於他的4年量刑基準亦屬過於嚴厲。

Mr Lo reiterated that the quantity of “dangerous drugs” that could have been manufactured from the pseudoephedrine in question is unknown.  Therefore, the making of an assumption that the 5.63 kilogrammes of pseudoephedrine in Li’s possession was capable of being manufactured into about 3.1 kilogrammes of “ice”, and from that, stating that the offence committed by Li posed great potential harm to the society in passing sentence, appears to be unfair to Li and to have exaggerated his culpability.
羅大律師重申涉案的假麻黃碱可以製造“毒品”份量多少屬未知之數。因此，以黎管有的5.63公斤假麻黃碱可以生產約3.1公斤“冰毒”為假定，並因而指黎的罪行對社會潛在禍害極大來判刑，對黎不公及有誇大他的罪責之嫌。

Mr Lo considered that the appropriate starting point for Li should be 3 years.
羅大律師認為適用於黎的量刑基準應為3年。

Discussion
討論

The expert witness testified that the 11.89 kilogrammes of pseudoephedrine imported by Lan was capable of being manufactured into about 6.5 kilogrammes of “ice”, and the 5.63 kilogrammes of pseudoephedrine in the possession of Li was capable of being manufactured into about 3.1 kilogrammes of “ice”.
專家證人的證供顯示蘭輸入的11.89公斤假麻黃碱可以製成約6.5公斤“冰毒”，而黎管有的5.63公斤假麻黃碱則可以製成約3.1公斤“冰毒”。

Had the two applicants found to be in possession of 6.5 kilogrammes or 3.1 kilogrammes of “ice” for the purpose of illegal trafficking, they would have faced sentences far exceeding 20 years’ imprisonment.
假若兩名申請人被裁定管有6.5公斤或3.1公斤的“冰毒”作非法販運用途，他們會面對的判刑會遠超過20年監禁。

Having said that, the two applicants did not commit the offence of “trafficking in a dangerous drug”, but they either knew or believed that the pseudoephedrine they had imported or possessed were for illegal manufacture of dangerous drugs, albeit not necessarily knowing that the dangerous drug so manufactured would have been “ice”.  In fact, this Court finds that considering the background of this case, apart from being used in the manufacture of dangerous drugs, there can be no other legitimate use of the pseudoephedrine in question.  The trial judge had already dealt with the applicants most generously in finding that they did not necessarily know that the pseudoephedrine in question was for the manufacture of “ice”.
當然兩名申請人並非犯了“販毒”罪，但他們是知悉或相信他們輸入或管有的假麻黃碱是用作非法製造毒品的，雖然他們不一定知道製成的毒品是“冰毒”。事實上，本庭認為以案件的背景而言，除了用作製毒外，涉案的假麻黃碱不會有任何其他正當用途。原審法官認為申請人不一定知道涉案的假麻黃碱是用作製造“冰毒”已是對他們極為寬鬆的處理方法。

The defendants in Cao Yuhui, Wong Yi Ching and Xiao Chunming had imported various quantities of pseudoephedrine, and all of them denied knowledge that the pseudoephedrine would have been used for the manufacture of dangerous drugs, and the trial judges sentenced them on such basis.  Neither do those cases provide guidance to, nor are they binding on this Court, nor do they support Mr Lo’s contention.
Cao Yuhui案、王苡靜案和Xiao Chunming案的被告人輸入不同份量的假麻黃碱，但該些被告人都聲稱不知悉假麻黃碱會用作製毒，而原審法官亦是以該基礎判刑。該些案件對本庭沒有任何指導性或約束力，亦不支持羅大律師的立場。

This Court considers that any person importing or in possession of raw materials capable of being used in the manufacture of dangerous drugs, same as those trafficking in a dangerous drug, should be given a heavy sentence, since such crimes cannot otherwise be deterred.  The Legislature has also recognized the seriousness of the crime of importation and possession of pseudoephedrine, and provided for a maximum penalty of a fine of $1 million and imprisonment for 15 years.
本庭認為任何人輸入或管有可用作製造毒品的原料都應和販運毒品一樣被重判，否則不能阻嚇有關罪行。立法者亦是認定輸入或管有假麻黃碱罪行的嚴重性，而將該罪行的最高判刑定為罰款100萬元及監禁15年。

This Court cannot overlook that condoning the importation or possession of raw materials capable of being used in the manufacture of dangerous drugs is equivalent to condoning the offence of manufacture of dangerous drugs, thereby posing great harm to the society.  Successful deterrence of the importation or possession of raw materials capable of being used in the manufacture of dangerous drugs is also equivalent to successful reduction of production of dangerous drugs.  The trial judge’s view that the offences committed by the applicants “posed great potential harm to the society” is absolutely reasonable, which we agree.
本庭不能忽視縱容輸入或管有可用作製造毒品的原料，等同縱容製造毒品罪行，對社會禍害甚大。成功阻嚇輸入或管有可用作製造毒品原料亦等同成功減低毒品的產量。原審法官認定申請人的罪行“對社會潛在禍害極大”的想法絕對合理，本庭認同。

In Ho Ka Ming, the defendant admitted to one charge of illegal importing and exporting of 2.7 kilogrammes of a solid, containing 1 kilogramme of pseudoephedrine, and the Court of Appeal found that the starting point of 6 years was not manifestly excessive.  In particular, the Court of Appeal emphasized that the defendant in that case knew that the substance in question would have been used in the manufacture of dangerous drugs, and the fact that he did not know the method of manufacture nor the quantity of dangerous drugs that could have been produced would not reduce his culpability.
在何家銘案，被告人承認一項非法輸入及輸出2.7公斤固體，內含1公斤假麻黃碱，上訴法庭認為6年的量刑基準並非明顯過重。上訴法庭特別強調該案的被告人知悉涉案物質會用作製毒用途，而他不知道製作方法或可製成毒品的數量一事不會減低其罪責。

In the present case, Lan imported a total of almost 12 kilogrammes of pseudoephedrine, nearly 12 times as much as the amount of pseudoephedrine in Ho Ka Ming mentioned above.  The pseudoephedrine in the possession of Li also amounted to 5.63 kilogrammes.
在本案，蘭輸入的假麻黃碱共重近12公斤，較上述何家銘案所涉的假麻黃碱超過近12倍。黎管有的假麻黃碱的重量亦有5.63公斤。

This Court cannot overlook that Lan imported the batch of pseudoephedrine from overseas, and Li was very likely to be assisting others in exporting the batch of pseudoephedrine into the Mainland.  They knew or had grounds to believe that the pseudoephedrine was for the manufacture of dangerous drugs.
本庭不能忽視蘭是從海外輸入該批假麻黃碱，而黎亦極可能是協助他人將該批假麻黃碱輸往內地。他們是知道或有理由相信該些假麻黃碱是用作製造毒品用途。

This Court considers that the starting points of 7 years and 4 years adopted by the trial judge for Lan and Li respectively are not manifestly excessive.
本庭認為原審法官分別針對蘭和黎所採納的7年及4年量刑基準絕非明顯過重。

Incidents of Mainlanders importing pseudoephedrine from overseas through Hong Kong are common, which explains why large quantities of “ice” are being manufactured in the Mainland and being exported, including to Hong Kong.  This situation must be stopped.  If there is information showing a rising trend of similar crimes, in sentencing, the Court might need to set out sentencing guidelines corresponding to the quantities of pseudoephedrine in question, with a view to eradicating such crimes, so as to reduce the prevalence of “ice”.
國內人士從國外，經香港輸入假麻黃碱經常發生，這亦解釋為何會有大量“冰毒”在國內製造後，輸出外地，包括香港。這情況必須制止。假若有資料顯示同類罪行有增加趨勢，在處理判刑時，法庭可能需要根據涉案假麻黃碱的份量，定出相應的判刑指引，冀望能杜絕這類罪行以減低“冰毒”氾濫的情況。

We allow Li’s application for leave to appeal out of time, but dismiss Li’s and Lan’s applications for leave to appeal against sentence.
本庭批准黎逾期提出上訴許可申請，但不批准他和蘭就判刑提出的上訴許可申請。

Mr P.Y. Lo, instructed by Leung & Lau, assigned by the Director of Legal Aid, for the applicants.
答辯人：由律政司高級檢控官馮美琪代表。

Ms Mickey Fung, Senior Public Prosecutor of the Department of Justice, for the respondent.
第一及第二申請人：由法律援助署委派梁寶儀劉正豪律師行轉聘大律師羅沛然代表。