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：

Background
背景

On 18 July 2016, the applicant pleaded guilty before Tong J (trial judge) to a count of trafficking in 81.5 grammes of a crystalline solid containing 80.8 grammes of “ice”.  Thereafter, on 17 January 2017, he was sentenced to 7 years and 4 months’ imprisonment.
2016年7月18日，申請人在高等法院原訟法庭法官湯寶臣（原審法官）席前承認了一項非法販運81.5克晶狀固體，內含80.8克“冰毒”後，在2017年1月17日被判處入獄7年4個月。

On the basis that 14 grammes of the dangerous drugs in question was for the applicant’s own consumption while 66 grammes was for trafficking, and having stated that possession of 10 odd grammes of “ice” would also lead to quite a substantial sentence, the trial judge eventually adopted 11 years as the starting point, and reduced it by one-third to 7 years and 4 months on account of the applicant’s guilty plea.
原審法官以涉案毒品中有14克是申請人作自用,而用作販運的則有66克為基礎,亦指出管有10多克“冰毒”亦會導致不輕的判罰,最終以11年作為量刑基準，並因申請人認罪而將量刑基準扣減三分一至7年4個月。

The applicant was aggrieved by the sentence.  On 8 February 2017, he made an application for leave to appeal, seeking the court’s leave to appeal against sentence.  After a hearing, we dismissed the application.  Below are the reasons for our judgment.
申請人不服判刑,在2017年2月8日提出上訴許可申請，要求法庭批准他就判刑上訴。經聆訊後，本庭駁回申請。以下是本庭的判案理由。

Ground of appeal
上訴理由

Mr Andy Hung, counsel for the applicant, did not raise any objection to the starting point adopted by the trial judge or his underlying sentencing principle.
代表申請人的孔慶碩大律師對原審法官採納的量刑基準及其基本判刑原則沒有提出任何異議。

Mr Hung’s only complaint was that in sentencing, the trial judge had failed to take into account the assistance rendered by the applicant to the authorities in respect of offences committed by others.  Mr Hung’s stance was that considering the assistance rendered to the authorities by the applicant and the possible consequences he would face as a result, he should have been entitled to a reduction of sentence of more than one-third.
孔大律師唯一的投訴是原審法官在判刑時沒有考慮申請人曾向當局就他人犯案提供協助。孔大律師的立場是考慮到申請人曾向當局提出的協助及因此可能要面對的後果，他理應取得超過三分一的刑期扣減。

Discussion
討論

According to the information provided by the prosecution, the applicant committed the present offence on 17 January 2015.  At the end of April 2016, he indicated his wish to provide crime information to the police.  However, on 16 May 2016, when the police visited the applicant, he changed his mind and would not provide any information to the police.
根據控方提供的資料，申請人是在2015年1月17日干犯本案。他在2016年4月底表示希望向警方提供罪案消息，但當警員在2016年5月16日探訪申請人時，他改變主意及不會向警方提供任何消息。

On 8 June 2016, the applicant indicated through his lawyer that he, once again, wished to meet with the police.  Thereafter, the applicant disclosed certain crime information to the police in 3 non-prejudicial statements.  The applicant also positively identified the person concerned as alleged by him in an identification parade.  The applicant alleged that the person concerned had made use of the two mobile phones found on the applicant to contact and direct him to “traffic in dangerous drugs”.
2016年6月8日，申請人透過律師表示，他再次希望和警方會面。其後，申請人在三份非用作承認責任供詞中向警方透露某些罪行的資料。申請人亦有在認人手續中認出他指和該些罪行有關的涉案人。申請人指該名涉案人曾以申請人身上搜到的兩部手提電話聯絡及指示他“販毒”。

Based on the information provided by the applicant, the police conducted thorough inquiries and arrested the person concerned.  Despite the positive identification of the person concerned by the applicant in the identification parade, the police eventually did not commence any prosecution in light of the information provided by the applicant.
警方根據申請人提供的資料有作出過非常詳細的調查，亦曾經拘捕該名涉案人。雖然申請人有在認人手續中認出該名涉案人，但警方最終沒有就申請人提供的資料作出任何檢控行動。

It was the stance of the police that the applicant had only made the offer of assistance 16 months after his arrest but thereafter suddenly changed his mind.  A month later, the applicant made another offer of assistance.  However, inconsistencies in the information provided by the applicant called into question his reliability.  Further, his claims were not corroborated at all.  The police were of the view that no prosecution could be taken based on the information provided by the applicant.  The stance of the police was eventually affirmed by the Department of Justice.
警方的立場是申請人在被捕後16個月才提出協助警方，但隨後又突然改變主意。一個月後，申請人又再次提出協助，但申請人提供的資料有不一致的地方，其可靠性令人懷疑，加上他的說法完全沒有任何佐證。警方不認為能根據申請人提出的消息作出任何檢控行動。警方的立場最終得到律政司的確認。

To solve crimes and bring offenders to justice, the court will encourage someone who has committed a criminal offence to provide information to the police on offences committed by others.  One way to so encourage is to reduce the sentence of the offender providing such information, the extent of which shall be determined according to the nature of the information provided and the consequences the provision of such information has on the offender (see Z v HKSAR [2007] 10 HKCFAR 183).  However, the court must be rigorous in dealing with the matter to preclude an abuse of the said mechanism of sentence reduction by offenders who, on the one hand, claim they offer assistance to the police while, on the other hand, ensure that the assistance they render will not produce substantive results.
為了破解罪行及能令犯案者會被繩之於法，法庭會鼓勵一名犯了刑事罪行的人向警方提供他人的犯罪資料。鼓勵方法之一是向提供資料的犯案者作出刑期扣減，幅度要根據資料的性質和提供資料會對該名犯案者造成的後果而定（見Z v HKSAR [2007] 10 HKCFAR 183案）。但法庭必須採納嚴謹的態度處理事件，避免犯案者濫用上述減刑基制，一方面聲稱協助警方，另一方面則確保其提供的協助不會有實質的後果。

It was our view that in general circumstances, if an offender wishes to provide information on crimes committed by others in exchange for sentence reduction, one of the conditions is that the information provided must be valuable information or it will only be a waste of police resources.  The Court of Appeal stated in paragraph 11, page 462 of the judgment of HKSAR v W [2014] 2 HKC 459:
本庭認為一般情況下，如犯案者希望能以提供他人犯罪資料來取得刑期扣減，條件之一是犯案者提供的資料必須是有價值的資料，否則只會浪費警方的資源。上訴法庭在HKSAR v W [2014] 2 HKC 459案判案書第462頁第11段表明：

In dealing with the above issue, the court must exercise its discretion appropriately and prudently to come to a fair and reasonable decision, or the system of sentence reduction by provision of crime information will certainly be abused.
在處理上述議題時，法庭必須恰當及謹慎地行使酌情權，作出公平、合理的裁決，否則以提供犯罪資料來取得刑期扣減的制度必會被濫用。

The applicant denied refusing deliberately to co-operate with the police and stated that he had truthfully related to the police matters within his knowledge.  He also denied inconsistencies in the information provided as alleged by the prosecution.  He also stated that there was objective circumstantial evidence to support his stance.
申請人否認有存心拒絕和警方合作，並指已據實將所知的事情告知警方。他亦否認控方指他提供的資料有前後不一致的地方。他亦指有客觀環境證據支持他的立場。

The objective circumstantial evidence referred to by the applicant per se did not support the applicant’s allegation against the person concerned.  Further, it was an undisputed fact that it was not until over a year after the commission of the offence by the applicant that he first indicated his willingness to assist the police.  And on the information provided by the applicant, there was no adequate basis for the prosecution to prosecute the person concerned, let alone have him convicted.
申請人所指的客觀環境證據本身並不支持申請人對涉案人士的指控。再者，不爭議的事實是申請人是在案發後超過一年才首次表示願意協助警方，而根據申請人提供的資料，控方是沒有足夠基礎檢控涉案人士，更不可能成功將他定罪。

In fact, before the applicant was sentenced, the prosecution had already made it clear that in respect of the information provided by the applicant, “the prosecution had completed the inquiries and no further action would be taken”.  At that time, counsel for the applicant accepted the prosecution’s submission and did not plead for a further reduction of sentence by reason of the assistance he had rendered to the prosecution.  The trial judge also took the view that the information provided by the applicant did not constitute a further mitigating factor.  The applicant was not entitled to make an application for leave to appeal against his sentence on this same ground after he was sentenced.
事實上，申請人被判刑前，控方已就申請人提供的資料表明“控方已經調查完畢，就冇進一步嘅行動會進行”。當時代表申請人的大律師接受控方的說法，亦沒有以申請人有向控方提供協助為理由要求法庭進一步減刑。原審法官亦認為申請人提供的資料不構成額外的減刑理由。申請人無權在被判刑後，再以同一理由支持其提出上訴許可申請，要求減刑。

We had given careful consideration to the background of the matter and it was our view that we should not exercise discretion to allow the applicant a further reduction of sentence in respect of his provision of information to the police.
本庭已有小心考慮事件的背景，本庭不認為應該行使酌情權，就申請人有向警方提供資料而給予他額外的刑期扣減。

We dismissed the applicant’s application for leave to appeal against sentence.
本庭駁回申請人就判刑提出的上訴許可申請。

Andy Hung, assigned by the Legal Aid Department, for the applicant
答辯人：由律政司高級檢控官伍淑娟代表。

Laura Ng, Senior Public Prosecutor, of the Department of Justice, for the respondent
申請人：由法律援助署委派大律師孔慶碩代表。