Hon Yeung VP (giving the judgment of the Court):
上訴法庭副庭長楊振權頒發上訴法庭判案書：

Factual Background
背景事實

On 14 September 2010, the Appellant (Chow Chun Sang), upon being stopped and searched by the police at the junction of On Ning Road and Ping Wui Street in Yuen Long, threw a plastic bag containing an apparatus for smoking “ice” to the ground and fled.  When the police gave chase to him, he put up a struggle, during which he scratched a Sergeant and kicked the Sergeant on his leg(s) twice.   But he was subdued and arrested in the end.
2010年9月14日，上訴人(周俊生)在元朗安寧路及屏會街交界遭警員截查時，將一個載有吸食“冰”毒工具的膠袋扔在地上後逃走。警員追截他時，他和警員糾纏，期間抓損了警長及踢了警長的腿兩次，但最終被制服及被拘捕。

At the police station, the police found on the person of the Appellant another plastic bag, containing 7.22 grammes of “ice” and 0.08 grammes of nimetazepam in the form of 15 tablets.
返回警署後，警員在上訴人身上搜出另一膠袋，內有7.22克“冰”毒及15片內含0.08克硝甲西泮的片劑。

The Appellant faced four charges, namely trafficking in 7.22 grammes of “ice” (the first charge), possession of 15 tablets containing 0.08 grammes of nimetazepam (the second charge), assaulting a police officer in execution of duty (the third charge), and possession of apparatus for smoking a dangerous drug (the fourth charge).
上訴人被控四項控罪，包括第一項非法販運7.22克“冰”毒罪，第二項管有15片內含0.08克的硝甲西泮片劑罪，第三項襲擊執行職責的警務人員罪及第四項管有吸食毒品器具罪。

The Appellant pleaded guilty to all charges, for which he was sentenced to a total of 3 years and 10 months’ imprisonment.    For the above four charges, the Judge sentenced the Appellant to imprisonment for 3 years and 6 months, 2 months, 2 months and 3 months respectively. The sentences on the first and the fourth charges were ordered to run concurrently and the sentences on the second and the third charges consecutively, making a total sentence of 3 years and 10 months.  Taking into account the fact that the Appellant was already sentenced to a total of 12 months’ imprisonment for separate offences of theft (TMCC 3082/2010) and possession of a dangerous drug (TMCC 4344/2009), the Judge ordered the sentence of 12 months to run consecutively to the aforesaid sentence of 3 years and 10 months.  The total term of imprisonment the Appellant had to serve was therefore 4 years and 10 months.  Having been granted leave by a single judge of this Court, the Appellant now appeals against sentence.
上訴人承認全部控罪，結果被判入獄共3年10個月。就上述四項控罪，原審法官判上訴人分別入獄3年6個月﹑2個月﹑2個月及3個月。原審法官下令第一項及第四項控罪的刑期同期執行，但第二項及第三項控罪的刑期則分期執行，得出共3年10個月的判刑。判刑時，申請人因另一宗盜竊罪（TMCC 3082/2010）及另一宗管有毒品罪（TMCC 4344/2009）而被判入獄共12個月。原審法官下令該12個月刑期要和上述的3年10個月刑期分期執行，因此上訴人要服的總刑期為4年10個月。上訴人不服判刑，獲上訴法庭單一法官的批准，就判刑上訴。

The Appellant’s Background and Mitigation
上訴人的背景及求情理由

The Appellant, aged 36, was born in Mainland China.  He settled in Hong Kong in the 1980’s.  He has 15 previous convictions, of which seven are for possession of a dangerous drug, one for possession of apparatus for smoking a dangerous drug, and two for common assault.
上訴人36歲，國內出生，在80年代移居香港。上訴人有15次犯罪記錄，包括7次管有毒品﹑一次管有吸食毒品工具及兩次普通襲擊罪。

At first instance, Counsel for the Appellant emphasized that the Appellant did not have a conviction record for drug trafficking and that more than half of the “ice” involved was for the Appellant’s own consumption.  Counsel also submitted that the Appellant assaulted the police for the sole purpose of fleeing and that the Sergeant sustained only minor injuries.  A letter of mitigation written by the Appellant’s aged and infirm mother was placed before the Judge.
原審時，上訴人的代表大律師強調上訴人沒有販毒前科，而涉案的“冰”毒有超過一半是上訴人作自己吸食用。大律師亦指上訴人襲擊警員，目的只是想逃走，而警長受傷亦屬輕微。上訴人年邁﹑體弱的母親亦撰寫求情書要求法庭輕判上訴人。

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

The Judge emphasized the gravity of the offence of trafficking in dangerous drugs and pointed out that, according to the sentencing guidelines laid down by the Court of Appeal, the starting point for trafficking in up to 10 grammes of “ice” was 3 to 7 years’ imprisonment.  The Judge accepted that more than half of the “ice” involved was for the Appellant’s own consumption, but did not consider this a very strong mitigating factor as possession of “ice” was also an offence per se.  The Judge considered the appropriate starting point for 7.22 grammes of “ice” was imprisonment for 5 years and 10 months.
原審法官強調販毒罪行的嚴重性及指出根據上訴法庭的判刑指引，販運10克以內“冰”毒，量刑基準為3至7年監禁。原審法官接受涉案的“冰”毒有超過一半為上訴人自用，但認為該點並非很強的求情理由，原因是管有“冰”毒本身亦是罪行。原審法官認為以7.22克“冰”毒而言，適當的量刑基準為5年10個月。

However, taking into account that over half of the drug was for the Appellant’s own consumption, the Judge adopted 5 years and 3 months as the starting point. The Judge then reduced the sentence by one-third to 3 years and 6 months on account of the Appellant’s guilty plea.  The Judge further sentenced the Appellant to imprisonment for 2 to 3 months in respect of the remaining charges and, in the end, arrived at a total sentence of 3 years and 10 months.
但考慮到毒品中有超過一半為上訴人自用，原審法官以5年3個月為量刑基準，並因上訴人認罪而將刑期扣減三分一至3年6個月。就其餘控罪，原審法官則判上訴人入獄2至3個月，而導致最終的3年10個月判刑。

The records show that the Appellant committed the offences in TMCC 4344/2009 (namely, possession of “ice” and possession of apparatus for smoking “ice”) on 7 September 2009.   The case was set down for trial on 13 January 2010.   The Appellant was absent for the trial and a warrant of arrest was issued against him. On 3 September 2010, the Appellant committed the offence in TMCC 3082/2010 (namely, theft).  On 14 September 2010, the Appellant was arrested for the present case and was brought before the court on the following day.  Upon pleading guilty to all the charges in TMCC 4344/2009 and TMCC 3082/2010, the Appellant was sentenced to a total of 12 months’ imprisonment.
記錄顯示，上訴人在2009年9月7日干犯 TMCC 4344/2009案（管有“冰”毒及管有吸食“冰”毒工具罪）。案件排期在2010年1月13日開審。上訴人因缺席應審而被通緝。2010年9月3日，上訴人再干犯TMCC 3082/2010案（“盜竊”罪）。2010年9月14日，上訴人因本案被捕，並在翌日被帶上法庭。上訴人承認TMCC 4344/2009及TMCC 3082/2010案的全部控罪後共被判入獄12個月。

The Appellant committed the offence in TMCC 3082/2010 and those in the present case when he was wanted.  On 22 March 2011, having pleaded guilty to the four charges in the present case, the Appellant was sentenced to a total of 3 years and 10 months’ imprisonment.  The Judge ordered the sentence of 3 years and 10 months to run consecutively to the aforesaid sentence of 12 months.
上訴人是在被通緝期間干犯TMCC 3082/2010案及本案，2011年3月22日，上訴人承認本案的四項控罪後，被判入獄共3年10個月。原審法官下令3年10個月的判刑要和上述的12個月判刑分期執行。

Ground of Appeal
上訴理由

Mr. David Ma, Counsel for the Appellant, put forward only one ground of appeal. Mr. Ma agreed that the starting point of 5 years and 10 months adopted by the Judge for the offence of trafficking in “ice” was appropriate.  However, Mr. Ma submitted that the 7-month discount to sentence (which translated to a discount of approximately 10%) given by the Judge on account of personal consumption of the “ice” by the Appellant was inadequate, and this rendered the sentence of 3 years and 6 months manifestly excessive.  Mr. Ma cited SJ v Chan Chun Fai [2011] 3 HKLRD 116 to support his argument and submitted that the appropriate discount should be in the region of 15 %.
代表上訴人的馬維騉大律師只指出一項上訴理由。馬大律師同意就販運“冰”毒罪，原審法官採納的5年10個月量刑基準恰當，但他因“冰”毒是作上訴人自用而給予他的7個月刑期折扣（約10%）不足而導致該項控罪的3年6個月判刑明顯過重。馬大律師援引SJ v Chan Chun Fai [2011] 3 HKLRD 116案支持其立場。馬大律師認為適當的刑期扣減幅度應約為15%。

Discussion
討論

Trafficking in “ice” is a serious offence, and the Court of Appeal has laid down clear sentencing guidelines with a view to deterring potential offenders.  In AG v Ching Kwok-hung [1991] 2 HKLR 125, the Court of Appeal pointed out that “ice” was a drug more deleterious to the human body than was heroin, and fixed a starting point of 3 to 7 years’ imprisonment for trafficking in 10 grammes of “ice”.  The Court of Appeal further pointed out a number of sentencing considerations apart from the quantity of the drugs involved, such as whether the defendant pleaded guilty, whether the defendant had cooperated with and rendered assistance to the police, whether the defendant testified against other drug traffickers in respect of the drug involved or other drugs, whether the defendant had a clear record, and any matters personal to the defendant (at 130H-I).
販運“冰”毒罪行嚴重，為了阻嚇罪犯從事販運“冰”毒的罪行，上訴法庭定下明確判刑指引。在AG v Ching Kwok-hung [1991] 2 HKLR 125案，上訴法庭指出“冰”毒對人體造成的損害較海洛英更甚，並定下販運10克份量的“冰”毒，量刑基準為3至7年監禁。上訴法庭亦再指出，在考慮適當判刑時，除了毒品的份量外，法庭亦要考慮其他因素，包括被告人是否認罪，是否和警方合作及有否協助警方，是否有就涉案的毒品或其他毒品作供指證其他販毒者，是否案底清白及和被告人個人有關的事項(見判案書第130頁H-I行)。

Even though the Appellant does not have a previous conviction for drug trafficking, he does have an extensive criminal record, a major part of which comprises drug-related offences that he has repeatedly committed. Therefore, he cannot rely on a clear record as a mitigating factor.  Nor can he rely on his family predicaments, including the need to take care of his senile mother, as a mitigating factor.   In light of the quantity of the drug the Appellant trafficked in, i.e. 7.22 grammes of “ice”, and the background of the Appellant, the starting point of 5 years and 10 months was clearly appropriate, and indeed Mr. Ma did not take issue with that.  The Judge, however, accepted the Appellant’s contention that over half of the 7.22 grammes of “ice” he trafficked in was for his own consumption, and proceeded to sentence him on that basis.
雖然上訴人沒有販毒前科，但他亦是案底纍纍，更多次涉及毒品罪行。因此，上訴人不能以案底清白為求情理由。上訴人的家庭困境，包括要照顧年邁﹑體弱母親亦非減刑因素。上訴人販運7.22克“冰”毒，從毒品的份量而言及考慮到上訴人的背景，5年10個月的量刑基準明顯是合適的。馬大律師對此亦不表異議。但上訴人指其販運的7.22克“冰”毒中有超過一半作自用，原審法官亦接納說法並以該說法為判刑基礎。

In drug trafficking cases, the fact that all or part of the drug involved is for the defendant’s self-consumption is recognized as a mitigating factor (see, for example, R v Chan Mung-lung [1992] 2 HKCLR 127 and R v Chung Kam Fai [1993] HKC 42).
在販運毒品案件，被告人販運的毒品中，全部或部分作自用是減刑理由(見R v Chan Mung-lung [1992] 2 HKCLR 127 及R v Chung Kam Fai [1993] HKC 42等案)。

In R v Meah & Marlow (1991) 92 Cr App R 254, a case concerning drug trafficking by way of importation of drugs, Jupp J also made the following observations (at 256):
在R v Meah & Marlow (1991) 92 Cr App R 254，Jupp大法官在處理進口毒品的販毒案件時，在判案書的第256頁亦有以下評論：

“Importing is a distinct offence from possessing. The penalties are different and in our view it is not right to say that this must be treated simply as a case of possession. Nevertheless there must be a considerable reduction in sentence to reflect the fact that the drugs were for the appellant’s own consumption.”
“入口毒品和管有毒品是兩項截然不同的罪行，判刑亦有別。本庭不同意本案應被視為單單是管有毒品案件。不過毒品是作為上訴人自用一事應由不小的刑期扣減幅度中反映出來。”(非官方翻譯)

In the case of Chung Kam Fai cited above, the defendant brought 306.67 grammes of heroin from Bangkok, Thailand into Hong Kong and contended that the drug was wholly for his own consumption.  The Court of Appeal took the view that, in the absence of a ruling by the trial judge on such contention, sentencing should be approached in a way most favourable to the defendant.  The Court of Appeal adopted a starting point of 16 years, and further to a reduction in sentence to 9 years on account of the defendant’s guilty plea and assistance to the authorities, the Court gave the defendant an additional 2-year discount, which was equivalent to 12% of the starting point of 16 years, in light of the self-consumption of all the drug by the defendant.  In HKSAR v Chow Kam Lung [2010] 4 HKLRD 253, the Defendant admitted importing 22.15 grammes of ketamine from the Mainland, but claimed that the drug was wholly for his own consumption.  The Court of Appeal considered that the reduction in sentence on account of the above factor should be in the region of 25%.
在上述的Chung Kam Fai案，被告人從泰國曼谷攜帶306.67克海洛英進入香港，並聲稱毒品全作自用。上訴法庭認為在原審法官沒有就被告人的聲稱作出裁決時，應以對他最有利的方法處理判刑。上訴法庭採納16年為基本量刑基準之餘，除了因被告人認罪及協助有關當局而將刑期扣減至9年後，再給予被告人額外的兩年刑期扣減，以反映全部毒品是被告人自用一事。兩年的扣減相等於16年量刑基準的12%。在HKSAR v Chow Kam Lung [2010] 4 HKLRD 253案，被告人承認由國內輸入22.15克氯胺酮，但聲稱毒品全作自用。上訴法庭認為因上述因素而將刑期扣減的幅度應約為25%。

We have to point out that the defendants in Meah & Marlow, Chung Kam Fai and Chow Kam Lung were all involved in importing drugs and sentenced by the Court on the basis that the drugs were wholly for their own consumption.
本庭須指出上述的Meah & Marlow案，Chung Kam Fai案和Chow Kam Lung案都涉及被告人輸入毒品而法庭的判刑基礎是涉案毒品全部作被告人自用。

In HKSAR v Cheuk Kin Man [2010] 5 HKLRD 558, the defendant pleaded guilty to trafficking in 15.77 grammes of heroin but claimed that two-thirds thereof were for his own consumption.  The Court of Appeal agreed that when part of the dangerous drug was intended for personal consumption by the trafficker, an appropriate, albeit not substantial, discount to sentence should be given.   The defendant was given an approximate discount of 15% by the Court of Appeal.
在香港特別行政區訴卓健文 [2010] 5 HKLRD 558案，被告人承認販運15.77克海洛英，但聲稱毒品中有三分之二供自用。上訴法庭同意當販毒者打算將涉案毒品部分供自用，量刑時應給予他恰當的刑期扣減，但幅度不會很大。上訴法庭給予被告人的刑期扣減約為15%。

We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances,  fall somewhere between 10% and 25% of the basic starting point.  In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant.  We need to emphasize that unless the judge has erred in principle, the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs a defendant trafficked in.
本庭認為在販毒案件，販毒者打算將涉案毒品全部或部分作自用一時，可導致的減刑幅度應為基本量刑基準的10%–25%，幅度按不同案件的情況而定。法庭應考慮涉案毒品的總份量、用作自用部分的比例、毒品的性質、販毒者販毒的目的是否為了賺錢、販毒行為是否有組織和有計劃、被告人的背景及犯罪記錄等等因素來決定刑期扣減的幅度。本庭需強調，除非原審法官犯了原則性的錯誤，上訴法庭不應干預原審法官因被告人販運的毒品中部分作自用而給予他的刑期扣減。

As pointed out by the Judge, possession of “ice” for personal consumption is also an offence in itself.  Furthermore, we must not overlook the latent risk that the portion of the drug intended for the Appellant’s own consumption may be given or sent to others.
誠如原審法官指出，管有“冰”毒作自用本身亦是罪行。本庭亦不能忽視上訴人自用部分的毒品亦有可能傳送到他人手中這潛在危機。

In HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69 at 80E, this Court also emphasized that the gravity of trafficking is not mitigated in those cases where the trafficker is trafficking in order to fund drugs intended to feed his own addiction.
本庭在HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69案判案書第80頁E行中亦強調，販毒的嚴重性不會因毒販販毒目的是為了賺取金錢來滿足毒癮而減輕。

With 15 previous convictions, the Appellant’s criminal record is worse than those of other defendants in similar cases.  It must also be borne in mind that the Appellant re-offended when he was wanted.  Having regard to self-consumption by the Appellant of most of the “ice” involved, the Judge reduced the starting point from 5 years and 10 months to 5 years and 3 months.  We agree that this 7-month discount (i.e. approximately 10%) is on the conservative side.  Nevertheless, in our judgment, the Judge has not erred in principle, nor is the final sentence of 3 years and 6 months on the first charge manifestly excessive.
上訴人有15次犯罪記錄，和同類案件被告人的犯罪記錄相比較差。本庭亦需強調，上訴人是在被通緝期間，再次犯案。本庭同意原審法官因涉案“冰”毒大部分是上訴人自用而將量刑基準由5年10個月扣減7個月至5年3個月（約10%），幅度屬保守。但本庭認為原審法官並沒有犯了任何原則性的錯誤而第一項控罪的最終3年6個月判刑亦非明顯過重。

The ground of appeal advanced by the Appellant fails.  We therefore dismiss his appeal against sentence.
上訴人提出的上訴理由不成立。因此本庭駁回他的上訴，維持原判。

Mr. Robert Lee, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent.
答辯人：由律政司高級助理刑事檢控專員李運騰代表。

Mr. David Ma and Ms. Eunice Yung, instructed by the Bar Free Legal Service Scheme, for the Appellant.
上訴人：由大律師公會法律義助服務計劃轉聘大律師馬維騉及大律師容海恩代表。