Hon Yeung V-P (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：

Introduction
引言

On 10th August 2010 in the vicinity of G/F, No. 42B Sha Tin Wai Village (“the residence”), police found the Applicant (Chan Ka-shing) and a 15-year-old boy Wong Wing-tat (“WONG”). The Applicant opened an iron gate with a key and then entered the residence whereas WONG waited outside the door. One minute later, the Applicant appeared and handed a brown plastic bag to WONG and said a few words to him. WONG left right afterwards.
2010年8月10日，警員在沙田圍村42B號地下(“該居所”)附近發現申請人(陳嘉成)和一個15歲男童黃永達(“黃”)。申請人用鑰匙開啟鐵閘後進入該居所而黃則在門外等候。一分鐘後申請人出現，將一棕色膠袋交給黃並向他說了幾句話後，黃隨即離去。

Later, the Applicant and WONG were intercepted by the police. Police officer searched the Applicant and found 10 packets of cocaine with 155.91 grammes of powder inside containing 112 grammes of cocaine. The Applicant indicated that he helped someone to hand (them) to someone. Police officer also found 11 packets with 172.33 grammes of powder inside containing 117.27 grammes of cocaine from a room in the residence rented by the Applicant. The Applicant indicated again that he helped someone to carry the cocaine.
其後申請人和黃都被警員截查。警員在申請人身上搜獲10小包可卡因，內有155.91克粉末，含112克可卡因。申請人表示“幫人手帶去交俾人”。警員亦在該居所內申請人租用的房間發現11個小包，內有172.33克粉末，含117.27克可卡因，申請人再表示是幫人帶可卡因。

The police officer also searched the brown plastic bag WONG held in his hand and found 10 packets with 156.54 grammes of powder inside containing 111.04 grammes of cocaine, and 12 boxes of soda powder.
警員亦在黃手上的棕色膠袋內搜獲10小包內有156.54克粉末，含111.04克可卡因，另有12盒蘇打粉。

The street value of all of the above cocaine was about HK$500,000. The Applicant admitted that he followed the instruction of a person called “Lo Ng” (transliteration) and got a bag with cocaine inside and $1,000 as reward from someone at the Star Ferry and took the bag with cocaine inside to the residence. Later upon Lo Ng’s further instruction, he met WONG and handed 10 pellets of cocaine and a few boxes of soda powder to WONG.
上述全部可卡因零售價約為50萬港元，申請人承認他是按一名叫老伍的人指示在天星小輪從一名人取得一個裝有可卡因的袋及1,000元報酬，並將裝有可卡因的袋帶回該居所。其後申請人再按老伍的指示和黃會面並將10粒可卡因和數盒蘇打粉交了給黃。

In relation to the above incident, the Applicant was charged with 3 counts of “Trafficking in a dangerous drug”. The dangerous drugs referred to in the 3 charges were namely, the 111.04 grammes of cocaine found on the person of WONG, the 112 grammes of cocaine found on the person of the Applicant and the 117.27 grammes of cocaine found in the residence. WONG was also charged with unlawful trafficking of the 111.04 grammes of cocaine found on him.
就上述事件，申請人被控三項販運危險藥物罪。三項控罪所指的危險藥物分別是在黃身上搜獲的111.04克可卡因﹑在申請人身上搜獲的112克可卡因和在該居所內搜獲的117.27克可卡因。黃亦被控非法販運其身上搜獲的111.04克可卡因。

On 16th February 2011, the Applicant pleaded guilty to all the charges before Deputy High Court Judge Patrick Li. WONG also pleaded guilty to the charge against him. As a result, the Applicant was sentenced to a total of 12 years and 7 months’ imprisonment whereas WONG was sentenced to 6 years and 5 months’ imprisonment.
2011年2月16日，申請人在原訟法庭暫委法官李瀚良席前承認全部控罪。黃亦承認針對他的一項控罪。結果申請人共被判入獄12年7個月，黃則被判入獄6年5個月。

The Applicant appeals against the sentences. He is now represented by Mr. Victor Cheung of Counsel to apply for leave to appeal against the sentences.
申請人不服判刑，現由張志輝大律師代表，要求獲准就判刑上訴。

The applicant’s background
申請人的背景

The Applicant was aged 18 at the time of offence and had turned 19 when being sentenced. He is single and has been educated up to Form 4. He had worked in fast food shop but was unemployed at the time of the offence. His father passed away many years ago and he lives with his elder brother, elder sister and mother. He did not have a criminal record. He indicated that he committed the offences due to financial difficulties and mixing with undesirable characters. He regrets the wrong doings.
申請人案發時18歲，判刑時19歲，未婚，受教育至中四。他曾在快餐店工作，但犯案時失業。申請人的父親早年過世，和一兄一姊及母親生活。申請人沒有犯罪記錄。申請人表示因經濟問題及誤交損友而犯案，而事後亦感後悔。

The learned judge’s reasons for sentence
原審法官的判刑理由

In relation to all 3 charges each involving around 110 odd grammes of cocaine, the learned judge took 9 years and 8 months’ imprisonment as the starting point. He reduced the sentence by 39 months for the Applicant’s guilty plea to 77 months’ imprisonment. However, as he was of the view that the Applicant did use WONG, a minor aged 15, in the commission of the 1st charge, so pursuant to section 56A(2) of the Dangerous Drugs Ordinance, he enhanced the sentence on the 1st charge by 50% to 115 months.
就三項涉及差不多都是110多克的可卡因，原審法官都以9年8個月為量刑基準，並因申請人認罪而減刑39個月至77個月。但原審法官認為申請人干犯第一項控罪時，有利用黃犯案，而黃只有15歲，屬未成年人，故根據《危險藥物條例》第56A(2)條，將第一項控罪的判刑加重50%至115個月。

Based on the totality principle, the learned judge ordered that 18 months of the 2nd and 3rd charges to run consecutively to the 115 months of the 1st charge, thus arriving at 151 months, that is, 12 years and 7 months’ imprisonment.
原審法官基於整體判罰的原則將第二及第三項判刑中的18個月和第一項控罪的115個月刑期分期執行而達至151個月，即12年7個月的判刑。

Grounds of appeal
上訴理由

Mr. Cheung advanced a number of grounds of appeal. He pointed out that although the Prosecution did indicate in the pre-trial review hearing on 18th January 2011 that they were considering applying for enhancement of sentence, it was not until 9th February 2011 that they informed the Defence of the formal application for enhancement, that is, 7 days before the trial date.
張大律師提出多點上訴理由。他指出雖然控方在2011年1月18日的預審聆訊有表示考慮申請加刑，但控方只在2011年2月9日，即開審前7天，才知會辯方正式加刑的申請。

Mr. Cheung alleged that the Prosecution had caused delay on that issue, thus leading to unfairness to the Applicant. Therefore, the Court should not have accepted the Prosecution’s application for enhancement.
張大律師指控方在該議題上有延誤，對申請人不公平，故法庭不應接受控方的加刑申請。

Mr. Cheung also argued that in fact, section 56A(2) of the Dangerous Drugs Ordinance was not applicable to the present case. The reason being that the Applicant did not “use” WONG in the commission of the offence but only followed the instruction of the mastermind and handed the drugs to WONG.
張大律師亦指《危險藥物條例》第56A(2)條根本對本案不適用，原因是申請人沒有“利用”黃犯案，而他只是聽從主腦的吩咐，將毒品交給黃。

In any event, Mr. Cheung argued emphatically that the 50% enhancement was too high. He pointed out that before passing the sentences, the learned judge had indicated that ‘the percentage of enhancement would be reduced’ in view of the background of the case.
無論如何，張大律師力稱50%之加刑幅度過高。他指出原審法官判刑前曾表示過案件的背景會“減輕加刑的百分比”。

Mr. Cheung also pointed out that the final sentence of 12 years and 7 months’ imprisonment was manifestly excessive in view of the Applicant’s background.
張大律師亦指以申請人的背景，最終的12年7個月判刑屬明顯過重。

Discussion
討論

Section 56A of the Dangerous Drug Ordinance specifies that:
《危險藥物條例》第56A條列明：

“(2) Information which may be furnished to a court under this subsection is any information which proves that the commission of the relevant specified offence involved a minor and, without limiting the generality of the foregoing, the information may relate to any of the following-
“(2)根據本款可向法庭提供的資料，是證明未成年人牽涉於有關的指明罪行內的資料；在不限制前文的一般性的原則下，該等資料可關乎任何以下情況─

the procuring, supplying or trafficking by whatever means of a dangerous drug for or to a minor for possession or otherwise by a person;
任何人不論藉任何方法為未成年人獲取或向未成年人供應或販運危險藥物，以供未成年人管有或作其他處理；

a person obtaining by whatever means a dangerous drug from a minor;
任何人不論藉任何方法從未成年人處獲得危險藥物；

provision by a person to a minor of any pipe, equipment or apparatus fit and intended for the smoking, inhalation, ingestion or injection of a dangerous drug;
任何人向未成年人提供任何適合於和擬用作吸食、吸服、服食或注射危險藥物的管筒、設備或器具；

a person intentionally or unintentionally employing, hiring, using, persuading, enticing, or coercing a minor in the commission of a specified offence or the avoidance of detection or apprehension of such an offence;
任何人在犯任何指明罪行時，或在避免因該罪行而引起的偵查或拘捕中，蓄意或非蓄意地僱用、僱請、利用、勸說、慫恿或威迫未成年人；

use of a minor in assisting the operation or management of premises which are used as a divan or for unlawful trafficking, manufacturing, or storage of a dangerous drug.”
利用未成年人協助營運或管理用作煙窟或非法販運、製造或貯存危險藥物的處所。”

According to the above sections 56A(2)(a) and (d), the procuring, supplying or trafficking of a dangerous drug for or to a minor for possession or otherwise by a person; or a person intentionally or unintentionally employing, hiring, using, persuading, enticing, or coercing a minor in the commission of a specified offence or the avoidance of detection or apprehension of such an offence is each a factor of enhancing the sentence.
根據上述的第56A(2)(a)及(d)條，任何人為未成年人獲取或向未成年人供應或販運危險藥物，以供未成年人管有或作其他處理；或在犯指明罪行時，或在避免因該罪行而引起的偵查或拘捕中，蓄意或非蓄意地僱用、僱請、利用、勸說、慫恿或威迫未成年人，都是構成加重刑罰的因素。

Undisputed evidence revealed that the Applicant handed the 111.04 grammes of cocaine to WONG.  His act not only constituted the offence of trafficking in a dangerous drug but also caused WONG to be convicted on the same offence.
無爭議的證據顯示，申請人將111.04克可卡因交給黃。申請人的行為不但構成販運危險藥物罪，亦導致黃遭裁定相同罪名成立。

The Applicant’s act obviously amounted to supplying a dangerous drug to a minor for possession or otherwise, which also amounted to using a minor in the commission of Trafficking in a dangerous drug.
申請人的行為明顯構成向未成年人供應危險藥物，以供未成年人管有或作其他處理，亦構成利用未成年人犯販運危險藥物罪。

This Court takes the view that there was basis on which the learned judge enhanced the sentence imposed on the Applicant on the 1st charge.
本庭認為原審法官是有基礎就第一項控罪加重申請人的刑罰。

The relevant section does not specify when the Prosecution has to inform the Defence of the application for enhancement. The Prosecution indicated on 18th January 2011 that they would consider making the application, and also formally informed the Defence of the relevant application 7 days before the trial date. This Court does not think that the Prosecution did cause any delay, nor unfairness to the Applicant. The reason is that the Defence could prepare their argument against the application for enhancement within 7 days, including collecting relevant information. This Court takes the view that the argument put forward by Mr. Cheung that the learned judge was not entitled to, or should not have enhanced the sentence, fails.
有關條例並沒有列明控方須何時通知辯方會申請加刑。控方在2011年1月18日表示會考慮申請，亦在開審前7天正式通知辯方有關申請。本庭不認為控方的做法有延誤，對申請人亦沒有做成不公，原因是辯方能在7天內預備反對加刑申請的論據，包括搜集相關的資料。本庭認為張大律師提出的論據，指原審法官無權或不應加刑不成立。

In his reasons for sentence, the learned judge commented on the enhancement as follows:
在其判刑理由，原審法官就加刑一事有以下評論：

“I have considered HKSAR v Wong Kwok Hung (transliteration) (CACC225/2002), the Applicant in that case used a minor aged 17 in trafficking drugs in a disco. The Court of Appeal agreed to an enhancement of sentence by 50%. I allow the Prosecution’s application. However, having considered that (the Applicant) does not have a criminal record and that he may not be the mastermind, I accept that he might not know the age of (WONG), and did not intentionally use a minor in drug trafficking. Therefore, the sentence for the 1st charge will be enhanced by only 50%.”
“本席考慮過案例HKSAR v 黃國雄(譯音) (CACC225/2002)，該案的申請人利用一名17歲未成年人在的士高販賣毒品。上訴庭同意應加刑50%。本席接受控方的申請，不過考慮到(申請人)沒有犯罪記錄，他未必是主謀，本席接受他未必知道(黃)的年紀，並非蓄意利用未成年人販毒。所以就第一項控罪的刑期，只加刑百分之五十。”

This Court is of the view that what the learned judge said before mentioning the 50% enhancement, reasonably understood, indicated that he was of the view that the appropriate enhancement should be not as high as 50%. He did not state clearly why he considered that a 50% enhancement of sentence was appropriate.
本庭認為，原審法官未提升加刑幅度50%之前的說話，以合理方式理解，顯示他認為適當的加刑幅度不應達50%。原審法官沒有表明為何他認為50%之加刑幅度適當。

In Wong Kwok Hung (supra) a 27-year-old defendant instructed a minor aged 17 to assist him in the trafficking of a small quantity of drugs to a customer in a disco. The Court of Appeal took the view that the appropriate enhancement was 50%. However, this Court has to point out that in Wong Kwok Hung, the Court of Appeal only increased the sentence by 50% from 4 months’ to 6 months’ imprisonment.
上述黃國雄案涉及一名27歲的被告人。他指示一名17歲的未成年人士協助他販運少量毒品給一名在的士高的客人。上訴法庭認為適當的加刑幅度是50%。但本庭需指出在黃國雄案，上訴法庭只是將4個月的判刑加50%至6個月。

When enhancing the sentence pursuant to section 56A(2) of the Dangerous Drug Ordinance, the court has to consider not only the percentage of the enhancement, but also the actual extent of enhancement.  In HKSAR v Lam Kam Kwong [2002] 1 HKC 541, the defendant hired a minor aged 16 in the trafficking of 1477.33 grammes of heroin. The Court adopted a starting point of 24 years’ imprisonment, however, pursuant to section 56A(2) of the Dangerous Drug Ordinance, the sentence was increased by 2 years only.
根據《危險藥物條例》第56A(2)條加刑時，法庭不單要考慮加刑幅度的百分比，亦要考慮實質刑期的加幅。在HKSAR v Lam Kam Kwong [2002] 1 HKC 541案，被告人僱用一名16歲未成年人販運1477.33克海洛英，法庭採納24年的量刑基準，但根據《危險藥物條例》第56A(2)條只加刑2年。

The 1st charge of this case involved 111.04 grammes of cocaine, and the learned judge adopted a basic starting point of 9 years and 8 months’ imprisonment. If the starting point was increased by 50%, the basic starting (point) arrived at would be 14 years and 6 months’ imprisonment.
本案第一項控罪涉及111.04克可卡因，原審法官採納的基本量刑基準為9年8個月，如將量刑基準增加50%，得出的基本量刑為14年6個月。

In view of the background of this case where 111 grammes of cocaine was trafficked in and even though a minor was used, this Court takes the view that the starting point of 14 years and 6 months’ imprisonment is manifestly excessive.
本庭認為以本案背景而言，販運111克可卡因，即使涉及利用一名未成年人士，14年6個月的量刑基準屬明顯過高。

This Court cannot ignore the fact that the Applicant was aged 18, yet to turn 19 at the time of the offences, and that the learned judge also accepted that he might not be the mastermind. The background of the case indicated that the mastermind was someone else, and that both the Applicant and WONG were used by the mastermind in drug trafficking activities. The Applicant was responsible for renting the residence and for storing the drugs.
本庭不能忽視，申請人犯案時亦只是18歲，不足19歲，而原審法官亦接納申請人未必是主謀。案件的背景顯示主謀另有其人，而申請人和黃都是受主謀利用，進行販運毒品活動。申請人的職責是租用該居所，儲存毒品。

If a 50% enhancement was to be adopted in this case, then for other serious drug trafficking cases where an adult mastermind caused a minor to engage in drug trafficking activities by unlawful or extreme means, is the sentence to be enhanced by 100% or 150%, increasing the already draconian sentence dramatically to 30 years, 40 years or above?
如在本案採納50%的加刑幅度，則在其他嚴重販毒罪行涉及成年主謀以不法及極端手段使未成年人士從事販毒活動時，加刑幅度是否要增至100%或150%，將原本已屬嚴苛的判刑大幅度增加至30年﹑40年或以上。

This Court thinks the answer to the question is clear: Drug trafficking is of course a very serious offence; no offender should get off lightly. Using a minor in drug trafficking is even more heinous. Any one would find the crime of drug trafficking abominable; however, when passing or enhancing the sentence, the court has still to exercise restraint to avoid increasing the sentence without limit, thus causing confusion and unfairness.
本庭認為問題的答案是明確的。販運毒品，當然是極為嚴重的罪行，犯案者都不應獲輕判。利用未成年人士販運毒品更屬罪加一等。任何人對販毒罪行都會感到深惡痛絕，但法庭在判刑及加刑時，仍須有所約束，避免判刑無限度地提升，造成混亂及不公。

The Applicant pleaded guilty to 3 charges, but the drugs involved in the charges were from the same source. When passing sentence, the Court should have taken all the drugs involved in the 3 charges into consideration to pass a reasonable overall sentence.
申請人承認三項控罪，但控罪所涉的毒品，源自同一地方。法庭判刑時，應將三項控罪所涉的毒品一併考慮在內，作出合理的整體判刑。

The total weight of cocaine involved in the 3 charges was 340.31 grammes.
三項控罪所涉及的可卡因總重量為340.31克。

The starting point laid down in Lau Tak Ming [1990] 1 HKLR 370 is applicable to the trafficking of cocaine (See AG v Pedro Nel Rojas CAAR15/1993).
劉德明案[1990] 1 HKLR 370定下的量刑基準對販運可卡因適用(見AG v Pedro Nel Rojas CAAR15/1993案)。

According to the starting point laid down in the above case, where the cocaine trafficked is between 200 grammes and 400 grammes, the starting point is 12 to 15 years’ imprisonment.
根據上述案件定下的量刑基準，販運200克至400克的可卡因，量刑基準為12-15年。

The Applicant trafficked in a total weight of 340.31 grammes of cocaine. In view of the background of the case and the Applicant, the total starting point should be around 13 years’ imprisonment. That the Applicant supplied drugs to minor or used a minor in drug trafficking was a factor for enhancing the sentence to be imposed. However, this Court is of the view that increasing the total starting point by an extra 2 years, making it 15 years is sufficient to reflect the seriousness of the case.
申請人販運共重340.31克可卡因，以案件和申請人的背景而言，總量刑基準應約為13年。申請人供應毒品給未成年人士或利用未成年人士販運毒品的行為，構成加刑因素，但本庭認為額外2年將總量刑基準提升至15年已足夠反映案件的嚴重性。

The Applicant pleaded guilty, the sentence should be reduced by one third, making it 10 years.
申請人認罪，其刑期理應扣減三分一至10年。

This Court grants the Applicant leave to appeal against the sentences. Treating the application as the appeal, we allow his appeal and vary the sentences on the 3 charges against him as follows:
本庭批準申請人就判刑上訴，並視申請為正式上訴。本庭判其上訴得直並將他的三項罪行的判刑改判如下：

On the 1st charge, he is sentenced to 93 months’ imprisonment.
第一項控罪判刑93個月

On the 2nd charge, he is sentenced to 77 months’ imprisonment.
第二項控罪判刑77個月

On the 3rd charge, he is sentenced to 77 months’ imprisonment.
第三項控罪判刑77個月

This Court orders that 27 months of the 2nd charge is to run consecutively to the 93 months’ imprisonment of the 1st charge, the remainder of the terms of imprisonment are all to run concurrently with each other.
本庭下令第二項控罪中的27個月判刑和第一項控罪的93個月判刑分期執行，其餘刑期全部同期執行。

The total sentence imposed on the Applicant is reduced from 12 years and 7 months’ imprisonment to 10 years’ imprisonment.
申請人的總判刑由12年7個月減至10年。

Samantha Chiu, Acting Senior Public Prosecutor of the Department of Justice, for the Respondent.
答辯人：由律政司署任高級檢控官招秉茵代表

Victor Cheung, instructed by Lam Keith Lau & Chan and assigned by the Legal Aid Department, for the Applicant.
申請人：由法律援助署委派劉林陳律師行轉聘大律師張志輝代表。