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：

On 31 July 2007, police officers stopped and searched Lam Chor Ping, the Applicant herein, outside Room A, 10/F, Cheong Kee House, 21 Soy Street, Kowloon (“the premises”) and found on his person the key to the premises.  The police officers then opened the door with the key and entered the premises for the purpose of executing a search warrant issued by the court.  At that time, the Applicant was a tenant of the premises.
2007年7月31日，警員在九龍豉油街21號昌記大厦10樓A室外截查申請人林楚平並在其身上搜獲上址的鎖匙。警員隨即利用鎖匙開門，並進入該單位內執行法庭發出之搜查令。當時，申請人是該單位的租客。

Later on, the police officers found inside the premises a total of 20.80 grammes of crystalline solid containing 20.04 grammes of “ice” as well as a small quantity of heroin.  A large quantity of drug packaging tools and cash (HK$22,383.10 and Renminbi 1,790.5) were also found.
其後警員在單位內搜獲共20.80克晶狀固體，內含20.04克“冰”毒及少量海洛英。警員亦搜獲大量包裝毒品工具和現金（22,383.10港元及1,790.5人民幣）。

The Applicant admitted to the police officers that the “ice” was purchased in Shenzhen for $6,000 and brought back to Hong Kong.  He agreed that he intended to sell some of the “ice” and use some of it for self-consumption.
申請人向警員承認“冰”毒是從深圳以6,000元購入並帶回香港。他同意表示打算將部份“冰”毒用作出售而部份則作自用。

As a result, the Applicant was charged with one count of trafficking in a dangerous drug (i.e. the aforesaid “ice”) and one count of possession of a dangerous drug (i.e. the aforesaid heroin).
結果申請人被控一項販運危險藥物（即上述“冰”毒）罪及一項管有危險藥物（即上述海洛英）罪。

The Applicant pleaded guilty to possessing the heroin but denied trafficking in the “ice”, and he disputed the oral and written admissions which he had allegedly made.
申請人只承認管有“海洛英”罪，但否認販運“冰”毒罪，並就控方指他曾作出的口頭及書面招認提出爭議。

After a hearing which lasted almost 6 days, Barnes J, the trial judge, ruled that the admissions were made by the Applicant voluntarily and were therefore admissible as evidence.  At that point, the Applicant changed his mind and pleaded guilty to trafficking in the “ice”.
經近6天的聆訊後，主審法官張惠玲裁定申請人的招認是自願作出，故應呈堂為證後，申請人隨即改變初衷，承認販運“冰”毒罪。

For the trafficking offence and possession offence, Barnes J sentenced the Applicant to imprisonment for 6 years 2 months and 4 months respectively, and the sentences were ordered to run concurrently.
張法官就販運及管有危險藥物罪判申請人分別入獄6年2個月及4個月，同期執行。

The Applicant now applies for leave to appeal against the sentence in respect of the trafficking offence.
申請人不服販運“冰”毒罪的判刑，現提出上訴許可申請，要求獲准就判刑上訴。

The Applicant submits that, having regard to the quantity of the “ice” involved, the starting point should be 7 years to 7½ years instead of 8 years as adopted by Barnes J.  He cites a number of decided cases in purported support of his argument.
申請人指以涉案“冰”毒的份量而言，量刑基準應為7年至7年半，而非張法官所採納的8年。申請人列出多宗例案支持其立場。

The Applicant submits that at trial he had been misled by Counsel acting for him into believing that even if he did not plead guilty at the first opportunity, he could still get a one-third discount on his sentence.  In the end, however, he was given a discount of less than one-fourth, which (he submits) was unfair to him.  He also submits that his senile parents and young children have to be looked after.  He therefore requests the court to pass a lenient sentence and give him a chance to turn over a new leaf.
申請人指原審時受其代表大律師誤導，以為即使不是第一時間認罪，他仍可得到三份一的刑期扣減，但結果他只能得到不足四份一的刑期扣減，對他不公；申請人亦指其年老父母及年幼孩子都需人照顧，故希望法庭能法外施恩給他一次更生機會。

Drug trafficking is an extremely serious offence and, in order to combat this offence, the court has laid down specific sentencing guidelines.  According to AG v Ching Kwok-hung [1991] 2 HKLR 125, the starting point for trafficking in 10 grammes to 70 grammes of “ice” is 7 to 10 years.
販運毒品屬極為嚴重罪行，為了打擊販毒罪行，法庭有明確量刑指引。根據AG v Ching Kwok-hung [1991] 2 HKLR 125案，販運10克至70克“冰”毒量刑基準是7 – 10年。

Of course, the court has a discretion to determine, within the parameters of the aforesaid guidelines, an appropriate starting point in light of the facts of a particular case and/or the exceptional circumstances of a particular defendant.
當然在量刑指引的範圍內，法庭亦有酌情權，根據個別案情及/或個別被告人的特殊情況定下在指引範圍內的適當量刑基準。

As Barnes J has correctly pointed out, the present case involves a cross-border offence and the Applicant is not a first offender.  The records show that he has 14 previous convictions, 5 of which involve dangerous drugs including two for drug trafficking, while the remaining convictions are mostly for offences involving dishonesty.
誠如張法官正確指出，本案是跨境罪行，而申請人更非初犯者。申請人的犯罪記錄顯示他有14次犯案前科，其中5次涉及毒品，包括2次販運毒品，而其他罪行多涉及不誠實行為。

The starting point of 8 years adopted by Barnes J has not exceeded the parameters of the sentencing guidelines and is eminently justified and correct.  Even if a starting point of less than 8 years has been adopted in some previous cases of a similar nature and involving the same quantity of drugs, it does not follow that we have to vary the starting point adopted by Barnes J.
張法官採納的8年量刑基準並無超過量刑指引的範圍，有充份理據支持，亦是正確的。即使有同類性質，涉及相同份量毒品的案件的量刑基準較8年為低亦不表示本庭應更改張法官所採納的量刑基準。

The court usually gives a one-third discount to those defendants who have pleaded guilty because such a discount accords with public interest.  The plea of guilty (1) avoids the inconvenience and other detriment which the community would inevitably suffer if a trial took place, and (2) saves expenses in respect of judicial proceedings, provision of court facilities, prosecutorial work, provision of legal aid, witness fees and jurors’ fees, and also avoids the inconvenience which members of the public would suffer by serving as jurors (See HKSAR v Chan Ka Shing, CACC 241/2008).
法庭一般給予承認控罪的被告人三份一的刑期扣減，原因是該刑期扣減符合公眾利益。犯案者認罪（一）會令社會免卻因審訊而必會導致之不便和其他代價，（二）會減省司法程序，法庭設施，控方檢控程序，法援援助，證人費和陪審員費用的支出及免卻陪審員面對之不便（見香港特別行政區 對陳家誠CACC 241/2008案）。

In the present case, it is true the Applicant pleaded guilty in the end, thereby saving expenses in respect of jurors’ fees and avoiding inconvenience which might otherwise be caused to the jurors.  However, the Applicant had initially objected to his admissions being adduced as evidence, as a result of which the court had to hold a 6-day hearing in order to determine the issue.
在本案，雖然申請人最終承認控罪，免卻了陪審員費用的支出及免卻陪審員面對之不便，但申請人反對控方將他作出的招認呈堂，導致法庭要進行了6天的聆訊。

The Applicant’s conduct not only wasted the court’s time and prevented the court from dealing with other cases more expeditiously, but also wasted public money, including expenses arising from prosecutorial work and the provision of legal aid.
申請人的行為不但浪費了法庭時間，導致法庭不能加快處理其他案件，更浪費公帑，包括檢控程序及法律援助所引發的費用。

Barnes J’s decision of not giving the Applicant a one-third discount is correct.
張法官不給予申請人三份一的刑期扣減是正確的決定。

Nor does the fact that the advice given by Counsel for the Applicant differed from the Judge’s final decision provide a reason for varying what is a properly made decision.
申請人大律師給予申請人的意見，最終和法官判決不同，亦非更改一項恰當判決的理由。

The less than one-fourth discount given to the Applicant was a decision made by Barnes J in the exercise of her discretion.  There is no room for varying her decision, which is justified in the circumstances.  In respect of drug trafficking offences, the hardship suffered by the defendant and his family as a result of the sentence imposed on him is not a mitigating factor.
張法官最終給予申請人少於四份一的刑期扣減，是張法官行使其酌情權的決定。張法官的決定有根據，本庭不應更改。在販毒案件，被告人的判刑所引致對他及其家人的困境亦非減刑理由。

In view of the nature and quantity of the drugs involved, the Applicant’s background and the way in which the case had proceeded, the overall sentence of 6 years and 2 months is not manifestly excessive and we see no reason for varying it.
以案件所涉毒品的性質和份量，申請人的背景及案件處理的過程，申請人被判的6年2個月總刑期不屬明顯過重，本庭沒有理由更改。

We refuse to grant leave to the Applicant to appeal against sentence.
本庭不批准申請人就判刑上訴。

Ms. Evena Chan, 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陳月好代表。

The Applicant in person, present.
申請人：無律師代表，親自應訊。