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案書：

Background
背景

On 19 January 2007, Wong Ping Kay, the Applicant herein, arrived in Hong Kong from Caracas via Paris.  From his luggage, 1,455.19g of a mixture containing 810.77g of cocaine was found, the retail price of which was approximately HK$1.5 million.  The Applicant admitted that, having brought the drug to Hong Kong, he would then take it to the Mainland for the purpose of earning a reward of HK$10,000 or HK$20,000.
2007年1月19日，申請人黃炳基從加拉加斯經巴黎抵港時被發現，其行李箱內藏有1455.19克混合劑，內含810.77克可卡因，零售價約150萬港元。申請人承認攜帶毒品進港後會再帶返國內，目的是賺取10,000或20,000港元的報酬。

As a result of the above incident, the Applicant was charged with one count of trafficking in a dangerous drug.  He pleaded guilty before Barnes J and was sentenced to imprisonment for 16 years and 8 months.
上述事件導致申請人被控販運毒品罪。申請人在高等法院張慧玲法官席前承認控罪，結果被判入獄16年8個月。

The Applicant now applies for leave to appeal against sentence.
申請人不服判刑，現申請上訴許可，要求獲准就判刑上訴。

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

The trial judge was mindful of the Applicant’s numerous previous convictions of which 11 were drug-related.  The latest one was in 2001 when the Applicant was sentenced to 12 years’ imprisonment for an offence of manufacturing dangerous drugs.
原審法官指出申請人有多次犯罪記錄，其中11次和毒品有關。最近一次在2001年，申請人因製毒而被判入獄12年。

The trial judge referred to a number of cases which indicated a starting point of 25 years or above was adopted for trafficking in cocaine of more than 800g.  The trial judge pointed out that in HKSAR v Hong Chang Chi [2002] 1 HKLRD 486 a starting point of 27 years was adopted against the defendant who trafficked in more than 3,000g of cocaine, whereas in HKSAR v Leang Sze Keong (unrep., CACC 566/1997) a starting point of 25 years was also adopted where the defendant trafficked in 889g of heroin.
原審法官列出多宗判例，顯示涉及800克以上的販運可卡因罪行，量刑基準為25年或以上。原審法官指出在HKSAR v Hong Chang Chi [2002] 1 HKLRD 486案被告人販運3,000多克可卡因，法庭採納的量刑基準為27年而在HKSAR v Leang Sze Keong案（unrep. CACC 566/1997），被告人販運889克海洛英，法庭採納的量刑基準亦為25年。

The trial judge highlighted the Applicant’s extensive conviction record in drug trafficking and said that, pursuant to the guidelines set out in HKSAR v Chan Pui Chi [1999] 3 HKC 848, the tariff laid down in R v Lau Tak Ming & others [1990] 2 HKLR 370 for trafficking in heroin / cocaine should be raised.
原審法官強調，申請人多次犯販毒罪行，故根據HKSAR v Chan Pui Chi [1999] 3 HKC 848案的指引，應將 Rv Lau Tak Ming & others [1990] 2 HKLR 370案就販運海洛英/可卡因罪行定下的量刑指引上調。

The trial judge did not agree to lower the appropriate starting point on account of the Applicant’s age of over 60.
雖然申請人年齡已超過60歲，但原審法官不同意因此而要將適當的量刑基準下調。

In the end, the trial judge adopted a starting point of 25 years and, giving the usual one-third discount for his guilty plea, sentenced the Applicant to imprisonment for 16 years and 8 months.
最終，原審法官以25年為量刑基準，並因申請人認罪而將刑期扣減三份一至16年8個月。

Grounds of appeal
上訴理由

Mr. Poon, Counsel for the Applicant, contends that, in view of the Applicant’s age, a custodial sentence with a term running to 16 years and 8 months is tantamount to a life imprisonment and is a destructive sentence.
代表申請人的潘展平大律師指以申請人的年齡而言，16年8個月的監禁，等同終身監禁，屬摧毀性刑期。

年而事實上該判刑在上訴後減至6年8個月。潘大律師指6年8個月的判刑顯示該案涉案的毒品份量不多。	Mr. Poon points out that, in sentencing, the trial judge twice emphasized that the Applicant had been convicted of manufacturing dangerous drugs and sentenced to 12 years’ imprisonment, but in fact the term of that sentence was reduced to 6 years and 8 months on appeal.  Mr. Poon submits that the term of 6 years and 8 months indicated that only a limited quantity of  dangerous drugs was involved in that case.
潘大律師指原審法官在判刑時兩次強調申請人有製毒罪行記錄及被判入獄12

Mr. Poon also submits that in the abovementioned case of Hong Chang Chi the defendant trafficked in cocaine of 3,000g, which far exceeded the quantity involved in the present case, but was in the end sentenced to imprisonment for 17 years only.  Mr. Poon stresses that the defendant in that case was merely aged 37 and therefore 17 years’ imprisonment in no way resembled a “life imprisonment”.
潘大律師亦指出上述Hong Chang Chi案中的被告人販運3,000克可卡因，遠較申請人所販運的為多，但其判刑最終只是17年。潘大律師強調，該案的被告人只有37歲，故17年的判刑絕非近乎“終身監禁”。

Mr. Poon insists that, in view of the Applicant’s background, in particular his age, a starting point of 25 years and the eventual sentence of 16 years and 8 months are manifestly excessive.
潘大律師力稱以申請人的背景特別其年紀而言，25年的量刑基準及最終的16年8個月判刑屬明顯過重。

Discussion
討論

As far as the offence of trafficking in a dangerous drug is concerned, the starting point is determined mainly by reference to the quantity of the drug in question.  Other aggravating or mitigating factors, though not entirely irrelevant, should not be accorded significant weight in the sentencing process.  As the courts have repeatedly emphasized, drug trafficking is a serious offence which causes grave social harm and, as such, calls for deterrent sentences.  Those who are minded commit the heinous offence of drug trafficking should be made aware of the consequences they will inevitably face once they are caught, so that they will not bet on their luck.  For this reason, the sentencing guidelines laid down by the Court of Appeal for this type of offences should be followed as closely as possible and should not be departed from due to particular aggravating or mitigating factors.
以販運毒品罪行而言，量刑基準主要反映涉案的毒品份量，其他加重罪責或減刑因素，雖然並非完全無關，但應佔比重不大。法庭屢次強調販運毒品對社會遺禍甚大，屬嚴重罪行，故判刑需具阻嚇性。干犯販運毒品這些邪惡罪行的人士，須預知事敗後必然會面對的後果，免卻他們會抱僥倖之心，所以上訴法庭就該類罪行定下的量刑指引，應盡量跟隨，而不應因個別加重罪責或減刑因素而遠離。

The trial judge emphasized that the Applicant had numerous previous convictions, 11 of which were drug-related, and one of which was for an offence of manufacturing dangerous drugs which entailed a sentence of 12 years’ imprisonment.  The trial judge overlooked the fact that the term of that sentence had been reduced to 6 years and 8 months upon appeal.
原審法官強調申請人有多次犯案記錄，包括11次和毒品有關而其中一次製毒罪行更導致申請人被判入獄12年。原審法官忽略了判刑在上訴後，減至6年8個月。

A lengthy criminal record may well be an aggravating factor (see the judgment in the abovementioned case of Chan Pui Chi).  However, as pointed out above, such an aggravating factor is of limited weight in the context of drug trafficking offences.  Accordingly, whatever the final sentence imposed on the Applicant for the drug manufacturing offence was, it should not have much bearing on the starting point to be applied in the present case.  As a matter of fact, the conviction records of the Applicant show that the drug-related offences he committed in the past were not of a very serious nature, with custodial sentences of less than 2 years being imposed, and the drug manufacturing offence for which he was sentenced to imprisonment for 6 years and 8 months involved dangerous drugs of merely 10-odd g.
被告人的纍纍案底，可以是加刑因素（見上述Chan Pui Chi 案的判案書）。但誠如上文所述，在販毒案件，該加刑因素應佔的比重不大，故不論申請人製毒罪行最終被判刑期多少，對本案適用的量刑基準影響不大。事實上，申請人的犯罪記錄顯示他以往所犯的毒品罪行，亦非十分嚴重。他被判的刑期不超過兩年而他被判6年8個月判刑的製毒案件亦只涉及10多克毒品。

Having said that, we do not agree with Mr. Poon’s submission that, in view of the Applicant’s age of 60, the term of 16 years and 8 months is equivalent to a “life imprisonment” and a “destructive sentence” and must therefore be reduced.
但本庭不同意潘大律師所指，因為申請人已有60歲，故16年8個月的判刑等同“終身監禁”，屬“摧毀性判刑”，而必須扣減。

As we have repeatedly emphasized, drug trafficking is a serious offence which warrants deterrent sentences.  That the offender is particularly old or young or is under a disability will not constitute a strong or adequate mitigating factor.  The purpose of this sentencing approach is to discourage drug traffickers from making use of aged, young or disabled people to participate in those heinous offences.
本庭多次強調，販運毒品罪行嚴重，法庭必須施行重刑以收阻嚇之用，罪犯年長、年少或有其他殘障都不是強烈或充份的減刑理由。該做法目的是避免鼓勵從事販運毒品罪行人士利用該些年長、年少或有其他殘障的人參與該些邪惡罪行。

We do not agree with Mr. Poon’s submission that the term of 16 years and 8 months is, as far as the Applicant is concerned, equivalent to “life imprisonment” and hence a “destructive sentence” which must be reduced.  A similar contention was rejected by this Court in R v Chen Chun-yeh CACC 513/1966.
本庭不同意潘大律師所指16年8個月判刑對申請人而言等同“終身監禁”，故屬“摧毀性判刑”而必須扣減。潘大律師所持立場在R v Chen Chun-yeh CACC 513/1966案遭本庭否定。

If, by reason of his old age, the Applicant is likely to pass away in prison, he may seek pardon from the Chief Executive if necessary.  However, the sentencing court cannot rely on the defendant’s old age as a reason for departing from the sentencing norm and making special arrangements.  Of course, the court may, depending upon the circumstances of each case,  exercise its discretion in making minor adjustments to the sentence on the basis of the defendant’s old age.
假若申請人因年紀老邁而有可能老死獄中，他可以在有需要時向行政長官提出申請，要求特赦，但被告人年紀老邁這並非法庭在判刑時遠離有關量刑指引及作出特殊安排的理由。當然法庭是可以根據個別案件，以被告人年紀大而在判刑時酌量作出輕微的調整。

The starting point for trafficking in cocaine is the same as that for trafficking in heroin (see AG v Pedro Nel Rojas [1994] 2 HKCLR 69).
販運可卡因罪行之量刑基準和販運海洛英罪行相同（見AG v Pedro Nel Rojas [1994] 2 HKCLR 69案）。

On the basis of Lau Tak Ming, trafficking in heroin of 400g to 600g attracts a starting point of 15 to 20 years, whereas heroin of more than 600g falls into the category of “very substantial quantities”.  The starting point for trafficking in “very substantial quantities” of heroin is to be enhanced from the ceiling of 20 years in the guidelines laid down in Lau Tak Ming.
根據Lau Tak Ming案，販運400至600克海洛英罪行的量刑基準為15至20年，而涉及600克以上海洛英則屬“極大份量”類別。涉及“極大份量”海洛英的販毒案件，量刑基準要由Lau Tak Ming 案定下的最高20年量刑指引上調。

In Lau Tak Ming, no clear sentencing guidelines were laid down for trafficking in heroin of more than 600g.  However, it was held in some cases that the upward adjustment should not be directly proportional to the increase in the quantity of drugs involved.
Lau Tak Ming案並沒有就販運超過600克海洛英罪行作出明確量刑指引，但有案例裁定上調之幅度不應和毒品份量之增加成正比。

The present case involved approximately 800g of cocaine, which is 200g in excess of the 600g that attracts a starting point of 20 years.  The starting point of 25 years adopted by the trial judge is not completely out of proportion.  Nevertheless, if trafficking in cocaine of 800g justifies a starting point of 25 years, what starting point should be adopted by the court in cases involving trafficking in heroin / cocaine of 1,500g or 2,000g or more?  Should it be 30 years or even more?
本案涉及約800克可卡因，較可導致20年量刑基準的600克多200克，原審法官採納的25年量刑基準並非完全不合符比例。但假若販運800克可卡因足以導致25年的量刑基準，那麼處理涉及1,500克，或2,000克或更多海洛英/可卡因的販運毒品罪行時，法庭須採納甚麼量刑基準，是30年，還是更長的刑期？

We note that in R v Ho Chi Ming [1995] 2 HKCLR 29, the 23-year-old defendant trafficked in heroin of 1,200g from Hong Kong to Taiwan, and the sentencing judge also adopted a starting point of 25 years.
本庭知悉在R v Ho Chi Ming [1995] 2 HKCLR 29,一名23歲的被告人販運1,200克海洛英離開香港前往台灣，判刑時，法庭採納的量刑基準亦是25年。

However, the quantity of drugs involved in the present case is less than that in Ho Chi Ming by one-third.
但本案涉及的毒品份量較Ho Chi Ming案少三份一。

In the abovementioned case of Hong Chang Chi, the defendant trafficked in as much as 3,000g of cocaine, which was almost four-fold more than the quantity involved in the present case, but a starting point of only 27 years was adopted.  In view of the quantities of drugs involved in the two cases, the two sentences are disproportionately discrepant.  The defendant in that case, who had pleaded guilty, was sentenced to a term of 17 years, which is only 4 months more than the term imposed on the Applicant.
在上述Hong Chang Chi案，被告人販運的可卡因份量更達3,000克，較本案所涉的份量多近4倍，法庭採納的量刑基準亦只是27年。以兩案所涉及的毒品份量而言，刑期的差別是不成比例的。在該案被告人認罪後被判的刑期是17年，亦只較申請人的判刑多4個月。

We also note that in the abovementioned case of Leang Sze Keong, which involved trafficking in 889g of heroin, the trial judge adopted a starting point of 25 years, and it was approved by this Court.
本庭亦知悉在上述Leang Sze Keong案，被告人販運889克海洛英，原審法官採納的25年量刑基準獲本庭支持。

However, we must point out that the quantity of drugs involved in that case was 80g more than that involved in the present case.  The Court of Appeal’s judgment in that case contained no more than three paragraphs.  Apart from stating that the starting point of 25 years was in line with the one laid down in Lau Tak Ming, the Court did not go on to discuss the issues arising out of the case, perhaps because the defendant in that case was not legally represented and hence no sufficient assistance was offered to the Court.  In our judgment, the sentence in Leang Sze Keong is not binding on us.
但本庭須指出該案涉及的毒品較本案多約80克。上訴法庭的判案書只有三段，除了指出25年量刑基準和Lau Tak Ming案的量刑基準指引吻合外，上訴法庭對案件引發的議題並沒有仔細討論，原因可能是在該案的被告人沒有律師代表，故法庭未獲足夠協助。本庭認為Leang Sze Keong案的判刑對本庭不具約束力。

Page 600 of Sentencing in Hong Kong (Cross & Cheung, 5th Edn.) sets out a number of sentencing cases involving trafficking in large quantities of heroin.  In HKSAR v Li Lap-fo Cr App 639/1999, which involved more than 5,000g, a starting point of 24 years was adopted; in HKSAR v Chiu Ho-chung [2001] 1 HKLRD 697, which involved almost 5,000g, a starting point of 25 years was adopted; in HKSAR v Lam Kam-kwong [2002] 1 HKC 541, a starting point of 24 years was adopted in respect of a quantity approaching 1,500g.
Sentencing in Hong Kong (Cross & Cheung 5th Edit)一書第600頁列出多宗涉及販運大量海洛英毒品案件的判刑。HKSAR v Li Lap-fo Cr App 639/1999涉及超過5,000克,量刑基準為24年；HKSAR v Chiu Ho-Chung [2001] 1 HKLRD 697涉及近5,000克，量刑基準為25年; HKSAR v Lam Kam-Kwong [2002] 1 HKC 541, 涉及近1,500克, 量刑基準為24年。

In light of the above cases, we hold that for the offence of trafficking in 800g of heroin or cocaine, a starting point of 25 years is excessive, and one of 22 years is sufficient.
根據上述案例，本庭認為以販運800克海洛英或可卡因的罪行而言，25年的量刑基準屬過高，22年已足夠。

As the Applicant pleaded guilty, the term should be reduced by one-third to 14 years and 8 months.  We see no other factors that justify a further reduction.
申請人認罪，刑期應扣減三份一至14年8個月。本庭不能察覺任何其他因素，再扣減刑期。

Conclusion
結論

We allow the Applicant’s application for leave to appeal against sentence and treat the application as the appeal proper.  We allow the appeal and reduce the sentence from 16 years and 8 months to 14 years and 8 months.
本庭批准申請人針對判刑提出上訴，並視其申請為正式上訴。本庭判申請人上訴得直，其判刑由16年8個月減至14年8個月。

Ms. Winsome Chan, Senior Government Counsel, for the Respondent.
答辯人：由律政司高級政府律師陳淑慧代表。

Mr. Jackson Poon, instructed by the Legal Aid Department, for the Applicant.
申請人：由法律援助署委派大律師潘展平代表。