Hon Chu J (giving the judgment of the Court):
原訟法庭法官朱芬齡頒發上訴法庭判案書：

The Applicant was brought before the District Court for the following charges: one count of ‘trafficking in a dangerous drug’ (charge 1), namely 10.62 grammes of a crystalline solid containing 10.59 grammes of methamphetamine hydrochloride (commonly known as ‘ice’); one count of ‘possessing a dangerous drug’ (charge 2), namely 23 millilitres of a liquid containing 0.12 gramme of methamphetamine hydrochloride; and one count of ‘possessing an apparatus fit and intended for consuming dangerous drugs’ (charge 3), namely a glass bottle.
申請人在區域法院被控一‍項「販運危險藥物」罪(“第‍一項控罪”)，該控罪涉及的危險藥物為10.62 克晶狀固體內含10.59 克甲基苯丙胺鹽酸鹽(俗稱「冰」)；一項「管有危險藥物」罪(“第二項控罪”)，該控罪涉及的危險藥物是23 毫升液體內含0.12克甲基苯丙胺鹽酸鹽，及一項「管有適合於及擬用作吸食危險藥物的器具」罪(第三項控罪)，該控罪涉及的器具是一個玻璃樽。

The Applicant denied charge 1 but pleaded guilty to charges 2 and 3.  After trial he was also convicted of charge 1 by District Judge Li.
申請人否認第一項控罪，但承認第二項及第三項控罪。經審訊後，區域法院法官李‍瀚‍良裁定申請人第一項控罪罪名亦成立。

The Applicant was sentenced to imprisonment for 6½ years, 8 months and 6 months respectively for the 3 charges, with all the terms to run concurrently.
就三項控罪，申請人分別被判入獄6½ 年、8 個月及6 個月，所有刑期同期執行。

The Applicant sought leave to appeal against conviction and sentence on charge 1.  The application for leave to appeal against conviction has been dismissed as the Applicant filed a notice of abandonment on 24 January 2008.  We therefore only have to deal with his application for leave to appeal against sentence.
申請人針對第一項控罪的定罪和判刑，提出上訴許可申請。就定罪的上訴許可申請，由於申請人在2008 年1 月24 日存檔「放棄通知書」，該申請因而被撤銷。本庭只需處理判刑的上訴許可申請。

Agreed facts
控辯兩方同意的案情

At trial, the prosecution and defence had no dispute on most of the facts of the case.
原審時，控辯雙方就案中大部份的案情並沒有爭議。

According to the agreed facts, at about 1210 hours on 20 November 2006, police officers arrived at the Applicant’s residence in Lei Muk Shue Estate to carry out an anti-dangerous-drugs operation and conduct investigations.  At that time, the Applicant was sitting in the living room behind a foldable table on which there were the dangerous drugs and apparatus in question, namely:
雙方同意的案情顯示，在2006 年11 月20 日約12:10 時，警方人員到達申請人位於梨木樹邨的住所執行反危險藥物行動及進行調查。當時申請人正坐在飯廳，在他面前有一張摺檯，檯上放有涉案的危險藥物和器具，即：

(1)Two plastic bags containing the dangerous drugs involved in charge 1, namely 7.69 grammes of a crystalline solid containing 7.67 grammes of methamphetamine hydrochloride and 2.93 grammes of a crystalline solid containing 2.92 grammes of methamphetamine hydrochloride.
兩個膠袋，內藏第一項控罪所涉的危險藥物；它們的重量分別為7.69 克的晶體內含7.67 克的甲基苯丙胺鹽酸鹽，以‍及2.93 克的晶體內含2.92 克的甲基苯丙胺鹽酸鹽。

(2)A glass bottle filled with liquid, together with a straw.  The liquid in the glass bottle was the dangerous drug involved in charge 2, whereas the glass bottle was the apparatus involved in charge 3.
一個玻璃樽內盛有液體及連同吸管。玻璃樽內的液體是第‍二項控罪所涉的危險藥物，而玻璃樽則是第三項控罪所涉的器具。

On the table there were also 3 lighters, several rolls of toilet paper and some toilet paper shreds.
此外，檯上亦放有三個打火機和數卷厠紙和厠紙碎。

The prosecution and defence also agreed that the retail price of the two plastic bags of ‘ice’ involved in charge 1 was HK$4,471.
控辯雙方亦同意第‍一項控罪所涉的兩‍膠袋「冰」的零售價是港幣4,471 元。

The trial on charge 1
第一項控罪的審訊

The particulars of charge 1 were that ‘on 17 November 2006 in Hong Kong [the Applicant] unlawfully trafficked in dangerous drugs’, namely 10.62 grammes of a crystalline solid containing 10.59 grammes of methamphetamine hydrochloride.
就第一項控罪，控罪詳情指申請人「於2006 年11 月17 日在香港，非法販運危險藥物」，即內含10.59 克甲基苯丙胺鹽酸鹽的10.62 克晶狀固體。

The main issue under dispute was whether the Applicant had trafficked in the two plastic bags of dangerous drugs as stated in the charge.
控辯兩方主要的爭議是申請人是否販運控罪所涉的兩膠袋毒品。

The prosecution mainly relied on the verbal confessions made by the Applicant at the scene of arrest as well as the contents of a post-recorded cautioned statement and the record of an interview in order to support the charge.  The prosecution’s evidence was that, at the scene of arrest, the Applicant said, under caution and in response to enquiries, that the two plastic bags of ‘ice’ were brought from the Mainland and that the glass bottle was for consuming ‘ice’.  When the police arrested him for trafficking in a dangerous drug and possession of an apparatus fit and intended for consuming dangerous drugs, he said the drugs were for his own consumption in his spare time and were not for sale to others.  The police officer post-recorded in his notebook what the Applicant said, and the Applicant then read and signed on the record for confirmation.  At the subsequent recorded interview, the Applicant said that the two bags of ‘ice’ involved in charge 1 and the glass bottle involved in charge 3 were given by a friend in Mainland China called ‘Ah Shan’ (transliteration) to him to ‘play with’ and he brought those items to Hong Kong from Shenzhen.
控方主要倚靠申請人在拘捕現場的口頭招認，以及補錄警誡供詞和會面記錄的內容支持控罪。控方的證據指申請人在拘捕現場經警誡後，回答查問時說兩膠袋「冰」是從大陸帶回來的，而玻璃樽是用作吸食冰之用。當警員以他販運毒品和管有器具適合用作吸食毒品罪拘捕他時，申請人回答說毒品是他自己吸食的，只是消磨時間，不是賣給別人的。警員把申請人這些說話補錄在記事冊，並由申請人閱讀和簽署作實。在其後的會面記錄中，申請人說第‍一項控罪所涉的兩膠袋「冰」以及第‍三項控罪所涉的玻璃樽是一位名叫「亞山」的大陸朋友免費給他「玩」的，而由他從深圳帶回港。

At trial, the Applicant neither gave evidence nor called any witness.  His defence was that he had been induced by the police to make all the confessions and that he had never said to the police that the drugs in question were brought to Hong Kong by him.
原審時申請人沒有作供，亦沒有傳召證人。他的抗辯理由是所有招認都是警方誘使他說的，他從沒有告訴警方涉案的毒品是他從大陸帶回香港。

Having considered the prosecution evidence, the trial judge was satisfied that the Applicant had made the verbal confessions at the scene of arrest and that the record of interview had been given by him voluntarily.  On that basis, the Applicant was convicted on charge 1.
經考慮控方的證據後，原審法官確信申請人曾在拘捕現場作出口頭招認，而會面記錄亦是他自願提供的，因而裁定第一項控罪罪名成立。

In paragraph 24 of his judgment, the trial judge explained his decision as follows:
在其判詞第 24 段，原審法官就其判決給予說明如下：

According to what the Defendant said in exhibit P11, [the drugs] were given to him as a gift by a friend and the quantity is sufficient for the Defendant’s consumption for one month.  That friend only arranged to meet him occasionally and he did not even know his friend’s telephone number.  Furthermore, as an agreed fact [exhibit P11, paragraph 4], the value of the dangerous drugs is about $4,500.  In light of all this, the suggestion that the dangerous drugs in question are all for the Defendant’s own consumption is in my view contrary to common sense.  The term ‘trafficking’ is defined in the ordinance to include importing a dangerous drug into Hong Kong.  On the basis of the Defendant’s confession, I am satisfied that his act of bringing the drugs to Hong Kong already constituted trafficking in them, and hence I find the defendant guilty of the offence.  However, I do not fully accept that all the drugs are for his own consumption.
根據被告人在證物P11所說，是一名朋友送給他的，份量足夠被告人一個月吸食，而此人只是間中約他，連電話也不知的朋友，加上同意案情(證物P11，第四段)毒品價值約$4,500，本席認為涉案毒品全部是被告人自用的講法不合常理。根據法例，『販運』的定義包括把毒品進口入香港，‍基於被告人的招認，本席確信他將毒品帶回香港的行為已構成販運毒品罪，故裁定被告人販運毒品罪名成位，但不會完全接受所有毒品是他自己吸食的。」

The sentence imposed by the trial judge
原審法官的判刑

The Applicant is aged 39, married and has a daughter aged 11.  He has been a drug addict for 5 to 6 years.  He has two previous conviction records, one of which is drug-related.  In 2004, in respect of an offence of possessing dangerous drugs, he was sentenced to imprisonment for 4 months, suspended for 18 months, as well as a fine of $3,000.  The Applicant runs decoration and funeral businesses in partnership with others and earns a total monthly income of about $40,000.
申請人39 歲，已婚，有一名11 歲的女兒。他有5 至6 年毒癮。申請人有兩次犯罪記錄，其中一次是與毒品有關。他在2004 年因管有危險藥物被判入獄4 個月，但緩刑18 個月，另罰款3,000 元。申請人與人合夥經營裝修生意和殯儀生意，每月共有約4 萬元入息。

Counsel for the Applicant submitted in mitigation that the dangerous drugs were for the Applicant’s own consumption, but the trial judge harboured doubts about this.  The Applicant therefore elected to give evidence in support of the submission.  The trial judge considered the Applicant’s evidence and found it incredible.  In paragraphs 7 and 8 of his Reasons for Sentence, the trial judge said:
申請人的代表律師求情時表示涉案的毒品是申請人自己吸食的，但原審法官對此有所懷疑。申請人因此選擇作供支持其說法。經考慮其證言後，原審法官認為他的證言不可信。原審法官在「判刑理由」第 7和8 段說：

I take into account the following factors:
本席考慮以下因素：

The ‘ice’ in question was contained in two bags, which weigh 7.67 grammes and 2.72 grammes.
涉案的『冰』分兩包，一包重7.67 克另一包重2.72 克，

The Defendant’s testimony in explaining that the dangerous drugs are for his own use is highly incredible.
被告人解釋毒品用來自用的證供甚不可信，

The dangerous drugs, which are worth $4,500, could not have been given to him for free, in particular by a friend whose telephone number the Defendant did not even know, and the quantity of the drugs is sufficient for consumption by the Defendant for one month.
毒品值$4,500，不可能是免費給他的，[尤]其是一個連電話號碼也不知的朋友，而這份量足夠被告人一個月吸食，

The Defendant is addicted to drugs.
被告人有毒癮。

On the above analysis, I am satisfied that the heavier bag [of dangerous drugs] is for trafficking and the bag with a smaller quantity is for the Defendant’s own use.
經以上的分析，本席確信比較重的一包用作販賣的，而少的一包是被告人自用的。」

As for sentencing, the trial judge explained his decision in paragraphs 9 to 12 of his Reasons for Sentence, which run as follows:
就量刑方面，原審法官在「判刑理由」第 9至12 段給予說明如下：

On charge 1, for the ‘ice’ that weighs 7.67 grammes, the starting point should be 6 years.  As for the ‘ice’ which weighs 2.92 grammes and which is for self-consumption, the starting point should be 15 months. As the Defendant is addicted to drugs, the risk of him sharing the dangerous drugs with others cannot be ruled out, and hence the sentence is to be enhanced by 6 months on account of such latent risk, making a total term of 21 months.  However, as the Defendant admitted before trial that the ‘ice’ was for self-consumption, a one-third discount is given for this part of the sentence and the term of imprisonment for the self-consumption portion should be 14 months.  Taking into account the totality principle and the limit of my sentencing jurisdiction, I hereby sentence the Defendant to 6½ years’ imprisonment on charge 1.
就第一控罪，以7.67 克『冰』的重量，量刑起點應為6 年，而部份自用的2.92 克『冰』 ，量刑起點為15 個月，由於被告人有毒癮，不能抹殺與其他人共用的風險，故另再加6 個月為潛在風險的刑罰，共21 個月。但被告人在審訊前已表示承認這些『冰』是自用的，故這部份刑期有3份1減免 ，單就自用的部份應入獄14 個月。考慮過整體判刑的原則和本席的判刑權限，現判被告人就第‍一控罪入獄6 年半。

On charge 2, I adopt 12 months as the starting point and reduce it by 4 months on account of the guilty plea.  The Defendant is sentenced to 8 months’ imprisonment.
至於第二控罪 ，本席以12 個月為量刑起點，認罪減4 個月，判被告人入獄8 個月。

On charge 3, I adopt 9 months as the starting point and reduce it by 3 months on account of the guilty plea.  The Defendant is sentenced to 6 months’ imprisonment.
至於第三控罪，以9 個月為量刑起點，認罪減3 個月，判被告人入獄6 個月。

Having considered the circumstances as a whole, I order that all the sentences shall run concurrently, and the Defendant is sentenced to imprisonment for a total of 6½ years.
考慮過整體情況，本席命令所有刑期同期執行，被告人共入獄6 年半。」

Grounds of appeal
上訴理由

Concerning charge 1, the Applicant has put forward the following three grounds of appeal against sentence:
就第一項控罪，申請人共提出三項上訴減刑理由如下：

After determining the sentence for the dangerous drugs which he reckoned were for the Applicant’s own use, the trial judge added it up with the sentence for the dangerous drugs which he reckoned were trafficked in by the Applicant. Such an approach was wrong in principle and rendered the overall sentence in excess of what was stated in the guideline in AG v. Ching Kwok Hung [1991] 2 HKLR 125, thereby causing unreasonableness and unfairness to the Applicant.
原審法官將他認為是申請人自用的毒品量刑後，再與他認為是申請人販運的毒品的刑罰相加，是犯了原則上的錯誤。同時亦引致整體刑罰超越AG v. Ching Kwok Hung [1991] 2 HKLR 125的指引，造成不合理和不公平的情況。

In light of the trial judge’s finding that 2.92 grammes of the ‘ice’ is for the Applicant’s own consumption, a term of imprisonment of 6½ years is excessive.
有鑑於原審法官裁定其中2.92 克「冰」為申請人自用，6½ 年監禁刑罰是過重及嚴苛。

In the circumstances of the case as a whole, the overall sentence of 6½ years’ imprisonment is manifestly excessive.
以整體案情情況而言，6½ 年監禁的整體刑罰明顯是過重和‍嚴苛。

The basis for conviction on charge 1
第‍一項控罪的定罪基礎

Before dealing specifically with the Applicant’s appeal against sentence, the basis for his conviction on charge 1 has to be considered.
在具體討論申請人就判刑的上訴之前，須先考慮第‍一項控罪的定罪基礎。

The trial judge pointed out in paragraph 3 of the judgment that the prosecution case mainly rested on the confession made by the Applicant at the scene of arrest and in the record of interview that the drugs in question were brought by him to Hong Kong from the Mainland. In paragraph 24 of his judgment, the trial judge further referred to the definition of ‘trafficking’ in section 2 of the Dangerous Drugs Ordinance and held that as the Applicant had admitted that he had brought the drugs from the Mainland to Hong Kong, his act constituted the importing of the drugs into Hong Kong, and he was therefore convicted on charge 1.  Mr Chan, Counsel for the Applicant, submits that the trial judge convicted the Applicant on the charge solely on the basis of his confession that he had brought the drugs into Hong Kong.
原審法官在判詞第 3 段指出，控方主要依靠申請人在拘捕現場和在會面記錄中曾作出的招認，指涉案毒品是他從內地帶進香港支持控罪。原審法官在判詞第 24 段進一步援引《危險藥物條例》第 2 條有關「販運」的定義，指出基於申請人承認把毒品從內地帶回香港，他的行為構成把毒品進口香港，因此裁定他第‍一項控罪罪名成立。代表申請人的陳‍大律師在陳詞中指出，原審法官純是因為申請人招認把毒品帶進香港而被判定控罪成立。

Mr Lee, Counsel for the prosecution, takes issue with Mr Chan’s submission.  Mr Lee contends that, as shown by the trial judge’s statement in paragraph 24 of his judgment that he did not fully accept that all the drugs were for the Applicant’s own use, the Applicant was not convicted solely on the basis of his act of bringing the dangerous drugs to Hong Kong.  The judge was of the view that the conviction on charge 1 also comprised the actual trafficking in dangerous drugs.
代表控方的李‍大律師不同意陳大律師的陳詞。他認為由於原審法官在判詞第 24 段已說明不完全接受所有毒品是申請人自己吸食，足見原審法官不是純粹因為申請人把毒品帶回香港而將他定罪。他認為第‍一項控罪的定罪亦包括實際販賣毒品。

In our view, generally speaking a judge has a duty to state clearly in his judgment the factual and legal bases of a conviction.  In the present case, the trial judge pointed out at the beginning of his judgment that the basis of prosecuting the Applicant was his confession of having brought the drugs into Hong Kong.  Furthermore, apart from this, if the trial judge considered there were other factual and legal bases in the case which constituted the offence of trafficking, he must specify those bases in his judgment.  It did not suffice to merely state that the Applicant’s allegation of having the drugs for his own use was against common sense and that the judge did not accept that all the drugs were for the Applicant’s own use.  Further, even if the trial judge did not accept that the Applicant had mentioned in his confession that the drugs were for his own use, this did not mean that there was concrete evidence to prove that the Applicant had not only brought the drugs into Hong Kong but had also actually trafficked in the drugs. If the trial judge intended to infer from the quantity of the drugs or from other evidence that the Applicant had actually trafficked in the drugs, he must specify in his judgment the factual basis and grounds upon which he made such an inference.  However, the trial judge made no mention in his judgment of any inference of trafficking in drugs.  For these reasons, in light of the evidence in the present case and the trial judge’s judgment, the Applicant’s confession of having brought the drugs into Hong Kong was the only basis on which he was convicted of charge 1.
本庭認為，一般而言，法官在判詞中有責任清楚說明定罪的事實和法律基礎。在本案中，原審法官在判詞初段已指出控方檢控的基礎是申請人招認把毒品帶進香港。其次，倘若除此點外，原審法官認為案中還有其他構成販運的事實和法律基礎，他必須在判詞中說明。單是指出涉案毒品是申請人自用的說法不合常理，而他亦不會接受所有毒品是申請人自用，並不足夠。再者，即使原審法官不接納申請人在作出招認時提及毒品是自用的說法，這亦不等同案中有具體證供可證明申請人不但把毒品帶進香港，還有實際販賣毒品的行動。如原審法官擬從毒品的份量或其他證據推論申請人有實際販賣毒品的行為，他必須在判詞中說明作出推論的事實基礎和論據。但原審法官沒有在判詞中提及任何販賣毒品的推論。是故，縱觀本案的證據和原審法官的判詞，第‍一項控罪的定罪基礎僅是因為申請人招認把毒品帶進香港。

The sentence on charge 1
第一項控罪的判刑

In The Queen v. Chan Mung Lung [1992] 2 HKCLR 127, the defendant was found to be in possession of heroin upon his arrival in Hong Kong via Lo Wu.  He pleaded guilty to a charge of trafficking in a dangerous drug but claimed that the drug was for his own use.  He was sentenced to 4½ years’ imprisonment.  The Court of Appeal held that a relevant sentencing consideration was whether the defendant had brought the drugs into Hong Kong for self-consumption or for trafficking, and that self-consumption constituted a strong mitigating factor.  The Court of Appeal went on the hold that, as the trial judge had not made a finding on whether the drugs brought by the defendant into Hong Kong were for his own use, he was to be sentenced on the factual basis that was the most favourable to him, and the defendant’s term of imprisonment was accordingly reduced to 1½ years.
在The Queen v. Chan Mung Lung [1992] 2 HKCLR 127案中，被告人從羅湖抵港後，被發現藏有海洛英。他承認販運危險藥物罪，但稱毒品是自用。他被判入獄4½ 年。上訴法庭裁定在判刑時，被告人把毒品帶進香港是供自用還是販賣是一項相關的考慮。如果毒品是供自用的話，這是一項有力的減刑因素。在該案中，由於原審法官沒有裁斷被告人帶進香港的毒品是否供他自用，上訴法庭認為須按對被告人最有利的事實基礎給予判刑，因而決定減刑至1½ 年。

In R v. Chung Kau Fai [1993] 1 HKC 42, the defendant was found to be in possession of heroin upon his arrival in Hong Kong from Bangkok.  He pleaded guilty to trafficking in a dangerous drug.  It was submitted in mitigation on his behalf that the drug was for his own use.  The trial judge sentenced the defendant to 9 years’ imprisonment, rejecting as incredible his claim that the drug was entirely for his own use.  In considering the defendant’s appeal, the Court of Appeal reiterated that it would be a mitigating factor if the defendant had brought the drug to Hong Kong for self-consumption.  The Court of Appeal took the view that, prior to sentencing the trial judge neither clearly indicated that he did not accept the defendant’s claim that the drug was entirely for his own use, nor gave the defendant an opportunity to adduce evidence in support of his claim, and therefore what the defendant said by way of mitigation must be taken as genuine for sentencing purposes.  The defendant’s term of imprisonment was reduced by two years.
在R. v. Chung Kau Fai [1993] 1 HKC 42案中，被告人從曼谷抵港後，被發現藏有海洛英。他承認販運危險藥物。代表律師在求情時指毒品是作自用。原審法官在判予9 年監禁時，表示被告人稱毒品全是自用的說法不可信。上訴法庭在考慮被告人的上訴時，重申如果被告人把毒品帶進香港是自用的話，這是一項減刑因素。上訴法庭認為由於原審法官在判刑前沒有表明不接受被告人指毒品全是自用的說法，以及沒有給予被告人機會提出證據支持其說法，因此在量刑時須當如被告人的求情理由為真確，故減刑兩年。

Similarly, in a more recent case, HKSAR v. Wong Suet Hau & Another [2002] 1 HKLRD 69, the Court of Appeal pointed out that if a defendant pleaded guilty to trafficking in dangerous drugs but claimed that the drugs were mainly for his own use, the judge must address and consider this mitigating factor; and if the judge accepted that a substantial portion of the drugs was for the defendant’s self-consumption, he must acknowledge this by adjusting the sentence as appropriate.
在較近期的HKSAR v. Wong Suet Hau & Another [2002] 1 HKLRD 69，上訴法庭同樣指出如果一名被告人承認販運危險藥物罪，但指稱毒品主要是作自用，則法官須正視和考慮這項求情理由。若然法官接納相當份量的毒品是作自用的話，他必須適當調整刑期以反映這個情況。

In the present case, the dominant mitigating factor put forward by the Applicant was that the drugs involved in charge 1 were all for his own use.  Nonetheless, the trial judge doubted this claim and, quite appropriately, conducted an inquiry into it.  Having heard the Applicant’s testimony, the trial judge considered it incredible and rejected the claim that all the drugs were for the Applicant’s own use.  The trial judge further held that the heavier of the two bags of drugs was for trafficking and the other one was for the Applicant’s own use.
在本案中，申請人的主要求情理由是第‍一項控罪所涉的毒品全是作自用。然而，原審法官對這個說法存有懷疑，他就此進行研訊乃是適當的做法。在申請人作供後 ，原審法官認為他的證言不可信，拒絕接納全部毒品都是申請人自用。原審法官亦進一步裁斷兩膠袋毒品中較重的一袋是用作販賣，而較輕的一袋則是申請人自用的。

In our judgment, in the given circumstances, the trial judge should first have fixed the starting point for charge 1 on the basis of the total weight of the two bags of drugs, and then reduced the sentence as appropriate for the reasons that part of the drugs was for the Applicant’s self-consumption and that he had admitted from the outset that the drugs were for self-consumption.
本庭認為在此情況下，原審法官在判刑時，應以兩膠袋毒品的總重量作為第‍一項控罪的量刑起點，然後因應部分毒品是作自用和申請人自始都承認毒品是自用兩點，給予適當的減刑。

Here, however, the trial judge adopted two starting points for the two plastic bags of drugs, respectively on the basis of trafficking and possession.  With respect, this approach was in our view improper.  First, the Applicant faced only one charge of trafficking, not two charges, in relation to the two bags of drugs, and it was wrong in principle to fix two starting points for one single charge.  Furthermore, the total weight of the two bags of ‘ice’ was 10.59 grammes and, pursuant to the guidelines on the starting point of ‘ice’-related offences as laid down in AG v. Ching Kwok Hung [1991] 2 HKLR 125, the starting point for the present case should not exceed 7 years and one month.  However, on the trial judge’s approach, the two starting points added up to 7 years and 3 months (6 years + 15 months), and further adding to it the ‘latent risk’ factor, the starting point became 7 years and 9 months (6 years + 21 months), which was on the high side. Even taking into account the Applicant’s admission all along that the drugs were for self-consumption, the eventual sentence of 7 years and 2 months imposed by the trial judge was still slightly excessive.
然而，原審法官就兩膠袋毒品分別按販運危險藥物和管有危險藥物給予兩個量刑起點，這個做法並不適當。首先，申請人就這兩膠袋毒品祇是面對一項販運危險藥物的控罪，而非兩項控罪 ；就一‍項控罪而設予兩個量刑起點，在原則上並不正確。其次，兩個膠袋中的「冰」的總重量是10.59 克，按AG v. Ching Kwok Hung [1991] 2 HKLR 125案有關「冰」的量刑起點指引 ，本案的量刑起點應不超過7 年1 個月。但按原審法官的做法，兩個量刑起點的總和是7 年3 個月(6 年 + 15 個月)，再加上「潛在風險」的因素，量刑起點變成7 年9 個月(6 年 + 21 個月)，造成偏高的情況。即使在考慮申請人一直承認毒品是自用，原審法官最終的判刑(即7 年2 個月)亦是略高。

Apart from this, in relation to the lighter bag of drugs, it was inappropriate for the trial judge to add 6 months to the sentence on the ground of ‘latent risk’. First, the trial judge had accepted that the Applicant was addicted to drugs, and there was nothing peculiar about the packing and quantity of the lighter bag of drugs which would indicate a possibility of the drugs being sold to or shared with others.  Second, and more importantly, given that the trial judge had inferred that only this bag of ‘ice’ was for the Applicant’s own use and that the other bag of ‘ice’ was for trafficking, he should not have proceeded to infer, merely by reason of the Applicant’s drug addiction, that he might share the drugs with others, and then enhance the sentence by 6 months on the basis of this inferred risk.
除此以外，原審法官就較輕的一膠袋毒品，以「潛在風險」為由，再加6 個月刑期的做法亦不適當。首先，原審法官接納申請人有毒癮。而就這較輕的一膠袋毒品而言，它的包裝和份量都沒有特別之處，以致可顯示有作販賣或與人共用的可能性。其次，亦是尤為重要的一點，原審法官既已推定祇有這一膠袋「冰」是申請人自用，而另外一膠袋「冰」是作販賣，便不應祇因申請人有毒癮便再推定他可能會與他人共用毒品，並因應這個推定的風險，把刑期提高6 個月。

Conclusion
總結

On the basis of the above analysis, the sentence on charge 1 as imposed by the trial judge is in our judgment improper in principle and should be set aside.
基於上述分析，本庭認為原審法官就第‍一項控罪的判刑在原則上有不當之處，有關的判刑應予以擱置。

In light of the weight of the drugs involved in charge 1, we adopt a starting point of 7 years and one month.  Taking into account the trial judge’s finding that 2.92 grammes of the ‘ice’ involved was for the Applicant’s own use and the mitigating factor that the Applicant had all along admitted that the drugs were for his own use, we reduce the term of imprisonment by two years.  The sentence for charge 1 should be 5 years’ imprisonment.
按第‍一項控罪所涉毒品的重量，本庭採納7 年1 個月作為量刑起點。經考慮原審法官裁定其中2.92 克的「冰」是申請人自用，以及申請人一直承認毒品是自用的求情因素，本庭給予兩年的減刑。第‍一項控罪的判刑應是5 年。

Accordingly, we grant leave to appeal against sentence on charge 1.   Treating the application as the appeal, we allow the appeal against sentence on charge 1, alter the term of imprisonment to 5 years and order that it shall run concurrently with the sentences on charges 2 and 3.
本庭因此批准申請人就第‍一項控罪的判罰的上訴許可申請，並視之為正式上訴。本庭批准第‍一項控罪的判罰的上訴，把判刑改為5 年，與第‍二項和第‍三項控罪的刑期同期執行。

Mr Chan Siu Ming, instructed by Louis Chan & Co., for the Applicant
申請人：由陳雲日律師行轉聘陳銚明大律師代表出庭。

Mr Robert Lee, Senior Assistant Director of Public Prosecutions, and Ms Virginia Lau, Senior Government Counsel, for the Respondent.
答辯人：由律政司高級助理刑事檢控專員李紹強及高級政府律師劉少儀代表出庭。