Hon Nguyen J (giving the judgment of the Court):
由高等法院原訟法庭法官阮雲道宣讀上訴法庭判案書

On 21 November 2000, Jim Lung Keung, the applicant for leave to appeal (i.e. the defendant), pleaded guilty in the Court of First Instance to two charges of trafficking in dangerous drugs.  Deputy Judge Toh sentenced him to 7 years and 8 months’ imprisonment.  The applicant now applies for a reduction of the sentence on the ground that it is excessive.
上訴許可申請人(即被告人)詹龍強於2000年11月21日在高等法院原訟法庭承認兩項販運危險藥物罪，原訟法庭杜麗冰暫委法官判申請人入獄7年8個月。申請人認為刑期過重，申請減刑。

The trial judge adopted a sentencing approach of taking two starting points.  She treated the two offences separately and adopted a starting point for each of the two offences based on the amount of heroin involved in that offence.  For the first count, she took 3 years as the starting point and reduced the term to two years by reason of the applicant’s guilty plea.  As for the second count, the judge took 8½ years as the starting point and then reduced the term to 5 years and 8 months.  The sentences for the two counts were to run consecutively, making a total of 7 years and 8 months.
原審法官在作出量刑時採取兩個量刑起點的處理方式，就是她將兩項控罪分開計算，即按兩項控罪的海洛英份量分別决定各自的量刑起點，於第一項罪名，她採立了3年為判刑起點，因為申請人認罪，所以減為兩年，而第二項罪名，法官就採立了8年半為量刑起點，減為5年8個月，兩項控罪的刑期分期執行，整體刑期為7年8‍個月。

The facts admitted by the applicant were as follows.  On 22 June 2000, a team of plain-clothed Customs and Excise officers carried out an anti-drugs patrol in Mongkok area.  At about 7:30 p.m. on the same day, they saw the applicant near lamppost AA 56590 in Shantung Street.  The officers found the applicant suspicious and stopped him for a search.  A packet of drugs, namely the drugs involved in the first count, was found on him.  The officers asked the applicant what was in the packet, and the applicant replied that it was “white powder”.  Then one of the officers asked the applicant where he lived, and he told them his address.  The officers went on to ask the applicant whether there were other dangerous drugs in his home, and the applicant answered, “Yes, there is another three ounces and a half in my home.”  The officers then took the applicant to the address he disclosed for investigation.  A search was conducted at the said premises, whereupon the dangerous drugs involved in the second count were found.
申請人承認事實如下，就是2000‍年6月22日，有一隊便衣的海關人員在旺角區進行掃毒巡邏，同日晚上大約7時半在山東街AA56590燈柱附近看見申請人，由於申請人形跡可疑，所以海關人員截停申請人，向他進行搜查，在其身上找到一包即是第一項罪名的毒品，當時問申請人那包東西是什麼，申請人回答是白粉，接着，其中一位海關人員問申請人在那裏住，申請人便說出其地址，海關人員繼續問申請人的家中是否還藏有危險藥物，申請人回答「有，屋企重有三安半。」海關人員於是帶申請人返回其報稱的住址進行調查。於搜查有關單位時發覺第二項罪名的危險藥品。

In HKSAR v Chow Yu Chi CACC 359/2000, the Court of Appeal made the following observations:
在香港特別行政區訴周汝志(Chow Yu Chi譯音)CACC359/2000一案中，上訴法庭有以下的看法：

… the judge adopted the somewhat laborious route of taking, for each offence, a separate starting point for each offence before making adjustments for totality. In circumstances such as these, where both offences were committed on the same day on closely linked facts, it would have been proper for the judge to have calculated the overall starting point by combining the weights of heroin in each charge to arrive at a total weight …
「…法官用了略為吃力的計算方法，即計算每一罪行各自的量刑起點後才就整體刑期作出調整。在本案的情況下，由於兩項罪行同日發生，案情有緊密關係，因此，法官應將兩項控罪所指的海洛英的重量相加，得出總重量後即決定整體量刑起點…

The approach taken by the judge in arriving at the two starting points reveals an error of principle. …
法官採取兩個量刑起點的處理方式，屬原則上的錯誤。…」

5.In the present case, Mr. Tam for the respondent has conceded that the trial judge had made an error of principle in sentencing.  The judge should have applied the above sentencing principle and arrived at an overall starting point on the basis of the combined weight of the dangerous drugs in the two charges, namely 87.37 grammes of heroin hydrochloride.  Following the sentencing guideline set out in Lau Tak Ming [1990] 2 HKLR 370, the overall sentence for the present offences should be 9 years.  This should then be reduced to 6 years on account of the applicant’s guilty plea.
5.在這件上訴案件中，譚律師代表答辯人承認原審法官在判刑原則上有犯錯，法官就應該引用上述判刑原則按兩項控罪的危險藥物的合計重量，即87.37克海洛英鹽酸鹽，得出總量刑起點而按照劉‍德‍明[1990] 2HKLR 370一案的判刑指引，總刑期應是9年，因為申請人認罪，扣減為6年。

6.Accordingly, we grant leave to appeal and, treating the hearing as the appeal, we allow the appeal and reduce the sentence from 7 years and 8 months to 6 years.  In other words, the applicant’s sentence is reduced by one year and 8 months.  To this extent, the appeal is allowed.
6.故此本庭接納申請，將申請當作上訴聆訊，接納上訴，將7年8個月，減為6年，即申請人的刑期獲減1年8個月。上訴人上訴得直，僅此於此。

Mr. Y H Tam, Senior Government Counsel, for the HKSAR.
控方：由律政司委派譚耀豪高級政府律師代表香港特別行政區政府

Mr. Steve Chui, instructed by the Legal Aid Department, for the defendant.
辯方：由法律援助署委派徐福亮大律師代表被告人