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 facts
背景事實

In the morning of 14 March 2007, customs officers began their surveillance operation near the Regal Oriental Hotel in Kowloon City. At around 1 p.m. on the same day, the officers found the 1st applicant, Ngan Ka-chun (“Ngan”) and the 2nd applicant, Tsui Wai-sing (“Tsui”) appearing outside the hotel one after another and leaving the hotel together at about 1:30 p.m. for an eatery nearby (“Wong Ming Kee”). Later, the two of them returned to the hotel and went upstairs by lift. About 10 minutes later, the two left the hotel and went to Wong Ming Kee again. They left Wong Ming Kee after staying there for about 10 minutes, and boarded a taxi to go to Festival Walk. They were intercepted by customs officers when they alighted from the taxi at Festival Walk. They put up resistance and struggled with the officers in a bid to flee but were eventually subdued and arrested by the officers. Throughout the course of the surveillance and during the arrest, Ngan was carrying a backpack on his back. After the two applicants were arrested, the officers found six black plastic bags in the backpack, containing a total of 5,844.25 grammes of crystalline solid containing a total of 4,680.2 grammes of N,N-dimethylamphetamine (NNDMA).
2007年3月14日上午，海關關員在九龍城富豪東方酒店附近開始監視行動。同日正午約1時，關員發現第一申請人顏家俊及第二申請人徐偉勝先後在酒店門外出現，並在約1時30分一起離開酒店前往附近一食肆（“黃明記”）。其後兩人返回酒店並進入了電梯上樓。大約10分鐘後，兩人離開酒店再前往“黃明記”。他們在“黃明記”逗留約10分鐘後離開，並登上一部的士前往又一城。當他們在又一城下車時遭關員截查。他們曾掙扎並和關員糾纏及嘗試逃走，但不成功，最終被制服及拘捕。在關員監視及拘捕兩人期間，顏家俊全程都背著一背囊。拘捕兩名申請人後，關員在該背囊內搜獲6袋黑色膠袋，共載有5,844.25克的晶狀固體，內含共4,680.2克N N二甲基安非他明(NNDMA)。

When the customs officers searched Ngan’s residence subsequently, they found 166 millilitres of liquid containing 0.08 gramme of methamphetamine, two tablets containing 9 milligrammes of NNDMA, 7 milligrammes of ketamine and 0.14 gramme of 3,4-methylenedioxymethamphetamine.
其後關員搜查顏家俊的住所並再搜獲166毫升液體，內含0.08克甲基苯丙胺，兩片片劑，內含9毫克N N 二甲基安非他明、7毫克氯胺酮及0.14克3,4亞甲二氣基甲基安非他明。

As a result of the above incident, the two applicants were jointly charged with the first charge of trafficking in a dangerous drug, namely the 4,680.2 grammes of NNDMA seized from the backpack that Ngan carried. Ngan was additionally charged with the second charge of possession of dangerous drugs, namely the small quantity of dangerous drugs found in his residence.
上述事件導致兩名申請人同被控第一項販運危險藥物罪，即在顏家俊所攜背囊內搜獲的4,680.2克N N二甲基安非他明。顏家俊被加控第二項管有危險藥物罪，即在其住所內搜獲的小量危險藥物。

The two applicants pleaded not guilty to the first charge of trafficking in a dangerous drug while Ngan pleaded guilty to the second charge of possession of dangerous drugs.
兩名申請人否認第一項販運危險藥物罪，但顏家俊承認第二項管有危險藥物罪。

The case was tried before Deputy High Court Judge M. Poon (as she then was) sitting with a jury. In the end, both applicants were found guilty of the first charge of trafficking in a dangerous drug and both of them were sentenced to a term of 18 years’ imprisonment for that charge. On the second charge of possession of dangerous drugs, Ngan was sentenced to 6 months’ imprisonment, to run concurrently with the 18 years’ imprisonment imposed on the first charge.
案件在高等法院暫委法官潘敏琦（當時職級）席前會同陪審團審理。結果兩名申請人都被裁定第一項販運危險藥物罪罪名成立。就該項販運危險藥物罪，兩名申請人都被判入獄18年。就第二項管有危險藥物罪，顏家俊被判入獄6個月，和第一項控罪的18年判刑，同期執行。

Both applicants applied for leave to appeal against the conviction on the first charge and the sentences. As the application made by Tsui in respect of his conviction was out of time, he sought an extension of time from the court.
兩名申請人都不服就第一項控罪的定罪及判刑決定，故提出上訴許可申請，要求獲准就定罪及/或判刑上訴。徐偉勝就定罪的申請已逾期，他要求法庭延展其申請的期限。

In their applications for leave to appeal against sentence, Ngan and Tsui are represented by Mr. Andrew Kan of Counsel and Mr. Andy Hung of Counsel respectively. Both of them are unrepresented and act in person in respect of their applications against conviction. At the first hearing of the applications on 16 December 2008, Ngan abandoned his application against conviction and the application was dismissed accordingly. As a result, we need only to deal with Tsui’s application against conviction and both applicants’ applications against sentence.
就判刑申請，顏家俊和徐偉勝分別由簡定濤      大律師及孔慶碩大律師代表。就定罪申請，他們沒有律師代表，親自行事。2008年12月16日，在本申請首次開庭時，顏家俊放棄就定罪的申請，該申請亦隨即被撤銷。因此，本庭只需處理徐偉勝就定罪的申請及兩名申請人就判刑的申請。

Prosecution’s allegations and evidence
控方的指控及證據

The prosecution alleged that the two applicants jointly trafficked in the dangerous drug referred to in the first charge. Apart from the undisputed background facts set out above, both the prosecution and the defence agreed that the two applicants each carried a mobile phone at the material times. Between the 1st and 14th of March 2007, the two applicants had communicated with each other via their mobile phones a total of 15 times, 8 of which were conducted between 1501 hours on 13 March 2007 and 1306 hours on 14 March 2007.
控方指兩名申請人共同販運第一項控罪所指的危險藥物。除了上述不具爭議的背景事實外，雙方亦同意兩名申請人在案發時都各自攜有一個手提電話。在2007年3月1日至14日期間雙方透過手提電話通話共15次，其中8次是在2007年3月13日下午1501時至2007年3月14日1306時進行的。

At the time of the arrest and at the subsequent interviews, both applicants had offered explanations to the allegations of the prosecution. Ngan stated that Tsui had asked him to carry the backpack and had told him that the backpack contained “ga shan” (equipment). But he did not know what the backpack actually contained.
被捕及在其後的會面時，兩名申請人都對控方的指控作出解釋。顏家俊表示背囊是徐偉勝吩咐他攜帶的，並告訴他背囊載有“架生”，但他不知悉背囊所載確實是甚麼東西。

Tsui admitted that the backpack was given to him by “Fat Kai”. Tsui stated that he “carried stuff for Fat Kai” in order to earn a remuneration. In his subsequent interview with the police, Tsui further explained how he had obtained the backpack, how he had delivered the backpack to the hotel according to instructions and given it to a person called Ah B. Tsui stated that Ah B helped Fat Kai to “get stuff for someone”. Not only did Tsui admit that he gave the backpack to Ngan, but he also admitted that he earned $10,000 in the incident, of which $4,000 was given to Ngan. However, Tsui stressed that he had never opened the backpack and therefore, he did not know what the backpack contained. But he also stated that he “knew it was not something good”, knew it was “illegal” and knew it was “dangerous goods”. But he did not know what kind of dangerous goods it was. Tsui stated that Fat Kai had told him, “Don’t open it, they measured up”, and he had also said “I thought I got nailed, for everybody knew that we were doing that kind of thing.”
徐偉勝承認涉案的背囊是由“肥佳”交給他的。徐偉勝表示自己“幫肥佳帶嘢”，賺取酬勞。其後和警員會面時，徐偉勝再就如何取得背囊，如何按指示將背囊送往酒店，交給一名叫阿B的人再作解釋。徐偉勝指是阿B幫肥佳“攞嘢畀人”。徐偉勝不但承認背囊是他交給顏家俊的，更承認在事件中他賺取了10,000元，其中4,000元分了給顏家俊。但徐偉勝強調從未打開過背囊，故不知悉背囊所載何物，但他同時表示，“知唔係好嘢”，知道是“非法”的，知道是“危險品”，但不知甚麼危險品，徐偉勝表示肥佳吩咐他“唔好打開，人哋夠秤”，亦有說過，“我以為我中咗，因為大家都知道喺度做緊嗰啲嘢。”

The defence
答辯理由

At trial, both Ngan and Tsui gave evidence for their own defence but neither called any witness. Both of them tried to shift the blame onto the other in their evidence.
原審時顏家俊和徐偉勝都有作供自辯，但他們沒有傳召證人。作供時，他們都試圖把罪責推向對方。

Ngan stated that Tsui had asked him to carry the said backpack and he did not know that the backpack contained dangerous drugs.
顏家俊指是徐偉勝要他攜帶有關背囊，而他是不知道背囊內載有危險藥物的。

On the other hand, Tsui stated that Ngan had left the backpack with him in his house in the small hours of the day in question, and he subsequently handed the backpack back to Ngan. Tsui stated that he did not know what was contained in the backpack.
徐偉勝則指顏家俊在案發當日凌晨將背囊寄存在他的家中，其後徐偉勝將背囊交回給顏家俊。徐偉勝表示不知悉背囊內所載何物。

Tsui stated that he went to the Regal Hotel in order to ask a friend to repay a debt, and since Ngan had told him that he wanted to go to somewhere near the hotel, they arranged to meet somewhere near the hotel. Inside the hotel, he took the lift trying to find the toilet but in vain. So he went to Wong Ming Kee to find the toilet and something to eat. Later, he got a call from his friend asking him to wait outside the hotel, but as his friend did not turn up, he returned to Wong Ming Kee. As Ngan stated that he wanted to go to Shatin to inspect certain decoration, he boarded a taxi with him to go to Festival Walk. No sooner had they alighted from the taxi than they were arrested.
徐偉勝表示到富豪酒店是找朋友還錢而顏家俊亦曾向他表示想到酒店附近，故兩人相約在酒店附近見面。在酒店內，他曾乘坐電梯找厠所，但找不到，故前往“黃明記”找厠所及吃東西。其後他收到朋友電話叫他在酒店門口等候，但結果等不到朋友，故再前往“黃明記”。因為顏家俊表示要往沙田看裝修，故和他一起坐的士到又一城，下車後隨即被捕。

Tsui stated that he was assaulted after being arrested and he denied having made any confession. He said that he signed his name on some documents that were to his prejudice only because he had been threatened and assaulted. He stated that he had no idea at all of the contents of the documents and had not said what were written in the documents as said by him.
徐偉勝指被捕後遭人毆打，他否認有作出任何招認。他只是在被恐嚇及毆打下，在一些不利他的文件上簽名。他表示對文件的內容全不知悉，亦沒有說過文件上所寫的說話。

The prosecution and defence agreed that Tsui received medical examination at Ruttonjee Hospital around 10:20 p.m. on the night in question. The doctor found that he had injury marks on his body, which included redness on his forehead, nose and the right side of his neck, abrasion on his lower lip, slight redness and tenderness on his left lower leg, and part of his right upper incisors were chipped and fractured. Tsui stated that the injuries were resulted from the assault by the customs officers but as he had been threatened by them, he did not tell the doctor the truth.
控辯雙方同意案發當晚約10時20分徐偉勝在律敦治醫院接受檢查後，醫生發現他身上有傷痕，包括額、鼻、右頸發紅、下唇擦傷、左下腿微紅及疼痛、右上門牙部份崩裂。徐偉勝指傷勢是遭關員毆打造成，但因遭關員恐嚇，故沒有向醫生道出真相。

Grounds of appeal against conviction
就定罪的上訴理由

Tsui did not set out his grounds of appeal in detail in his application for leave to appeal. He complained, “the judge placed emphasis on the prosecution’s evidence in the summing-up and neglected the challenge made by defence lawyer of the prosecution’s evidence, thereby making the jury forming a wrong impression that the judge held the same view, and as a result, the jury believed that I was guilty”. He repeated the course of events as alleged by him in his written submission. He insisted that he had been threatened by customs officers with violence, and he was forced to sign his name on the documents to show that he admitted the allegations of the prosecution against him. Tsui stressed that the directions of the trial judge to the jury failed to do him justice and he did not understand why the jury preferred the evidence of the customs officers to his evidence.
徐偉勝在其上訴申請書沒有列出詳細的上訴理由，他指“法官在陳詞中重點提及控方的證據，而忽略了辯方律師質疑控方的理據，形成陪審員錯誤以為法官都有同樣睇法，因而才相信本人有罪”。在其書面陳述，徐偉勝複述其指稱的案發經過。他力稱曾受關員暴力恐嚇，更被迫在文件上簽名，顯示他承認控方對他的指控。徐偉勝強調原審法官對陪審團的指引對他不公平，亦表示不明白為何陪審團信納關員的證供，郤不信納他的證供。

The convictions in the present case are wholly founded on the views of the jury on the facts. The jury were conscious of the allegations of the applicant against the customs officers and the jury must have also taken into account the defence raised by the applicant. The jury were entitled to reject Tsui’s version of events and, based on the prosecution’s evidence that were accepted by them, to convict him. He alleged that he had been assaulted and injured by the police. But his injuries were wholly inconsistent with his allegation. We have also carefully considered the directions of the trial judge to the jury. We do not agree with Tsui’s assertions. The directions of the trial judge to the jury were reasonable, sufficient, full and fair. The trial judge had not neglected the version put forward by the defence. We do not find the conviction of Tsui on the first charge unsafe in any way. The evidence against him was ample and had been found established. Tsui’s application for leave to appeal against conviction is dismissed.
本案就定罪的裁決，全建基在陪審團對事實的看法。陪審團知悉申請人對關員的指控，陪審團亦必會將申請人的自辯理由考慮在內。陪審團有權否定徐偉勝的說法及接納控方的證據並根據控方證據將他定罪。他指被警員毆打受傷但其傷勢和其指稱絕不相符。本庭亦有詳細考慮原審法官對陪審團的引導。本庭不同意徐偉勝的立場。原審法官對陪審團的引導是合理、充份、全面及公平的。原審法官並沒有忽略了辯方的說法。對徐偉勝被裁定第一項控罪罪名成立，本庭不覺有任何不穩妥之處。針對他的證據是充份及確立的。本庭不批准徐偉勝就定罪提出上訴。

The trial judge’s reasons for sentence
原審法官判刑理由

The trial judge pointed out that the Court of Appeal has not laid down sentencing guidelines for trafficking in the dangerous drug involved in the present case, namely N,N-dimethylamphetamine (NNDMA). She also pointed out that according to the case HKSAR v So Shuk Yee CACC460/2004 and the expert report prepared by Professor Tang Wai Kwong for the present case, the potency of NNDMA is different from that of ‘Ice’ for the reasons that (1) NNDMA is less potent than ‘Ice’ in terms of its neurotoxic effects; (2) animal studies have shown that ‘Ice’ is 3 times more potent than NNDMA in its lethal effects; (3) in terms of its stimulant effects on the human central nervous system, NNDMA is 5 to 12 times less potent than ‘Ice’; (4) NNDMA is rarely abused as a single substance but is more often found in mixture with MDMA (“Ecstasy”) or ‘Ice’. The trial judge agreed that the sentencing guidelines for trafficking in ‘Ice’ are not applicable to trafficking in NNDMA.
原審法官指出上訴法庭並沒有就販運涉案的危險藥物，即N N 二甲基安非他明定下量刑指引。原審法官亦指出根據香港特區政府 訴 蘇淑儀（譯音） CACC 460/2004案及本案的鄧偉光博士撰寫的專家報告，N N 二甲基安非他明的毒性和“冰”毒的毒性不同。原因是（一）N N 二甲基安非他明毒性對人類神經做成的損害較” “冰”毒為低；（二）就動物測試而言，“冰”毒的致命毒性較N N 二甲基安非他明高三倍；（三）就刺激人類中樞神經而言，N N 二甲基安非他明的藥力只及“冰”毒的約1/12至1/5倍；（四）N N 二甲基安非他明很小單獨使用，而是多混於MDMA“忘我”，或“冰”毒一起被濫用。原審法官同意適用於販運“冰”毒的量刑指引不適用於販運N N 二甲基安非他明。

The trial judge said that there was a consensus between trial counsel on both sides that the sentence for trafficking in NNDMA should be somewhere between that for trafficking in the same quantity of ‘Ice’ and that of ‘Ecstasy’.
原審法官指控辯雙方大律師有共識，即販運N N 二甲基安非他明應導致的判刑介乎販運相同份量的“冰”毒及“忘我”之間。

The trial judge pointed out that under the relevant authorities, the starting point for the trafficking of 4,680 grammes of ‘Ice’ should be 24 to 25 years while that for the trafficking of 4,680 grammes of ‘Ecstasy’ should be 12 years.
原審法官指出根據有關案例，販運4,680克“冰”毒，量刑基準應為24、25年而販運4,680克“忘我”的量刑基準則應為12年。

In particular, the judge pointed out that in HKSAR v Tsang Wai-kei CACC 452/2002 where it involved the trafficking of 4.2 kg of ketamine, the Court of Appeal held that the starting point of 12 years could be described as lenient. Given the principle that trafficking in ketamine and that in ‘Ecstasy’ would lead to similar terms of imprisonment, the trial judge took the view that the appropriate starting point to be adopted in the present case which involved the trafficking of 4,680 grammes of NNDMA should be somewhere between 12 and 25 years.
原審法官特別指出香港特區政府 訴 周偉基（譯音）CACC 452/2002案涉及販運4.2公斤氯胺酮,上訴法庭指12年的量刑基準屬輕判。在販運氯胺酮和販運“忘我”會導致相約的刑期的原則下，原審法官認為以本案涉及4,680克N N – 二甲基安非他明而言，適當量刑基準應介乎12年與25年之間。

In the result, the trial judge adopted a starting point of 18 years’ imprisonment, being the median figure between 12 and 25 years, for the first charge in respect of both applicants.
最後，原審法官採納了12年及25年之間的中位，以18年為首項控罪的量刑基準來懲處兩名申請人。

Grounds of appeal
上訴理由

Mr. Kan of Counsel and Mr. Hung of Counsel both complained that the starting point of 18 years adopted by the trial judge was too high.
簡大律師和孔大律師都指原審法官採納的18年量刑基準過高。

Mr. Kan stressed the point strongly that as the starting point adopted by the judge in HKSAR v Tsang Wai-kei CACC 452/2002 for the trafficking of 4.2 kg of ketamine was 12 years, and while the Court of Appeal also approved the starting point of 18 years for the trafficking of 7.11 kg of ‘Ecstasy’ in HKSAR v Leung Ka-yin CACC 145/2005, the starting point for the present case should be below 18 years.
簡大律師強調香港特區政府 訴 周偉基 CACC 452/2002案，涉及販運4.2公斤氯胺酮，法官採納的量刑基準是12年而香港特區政府 訴 梁家賢 CACC 145/205案則涉及7.11公斤“忘我”，上訴法庭亦認同18年的量刑基準，因此簡大律師力稱本案的量刑基準應低於18年。

Mr. Hung pointed out that NNDMA is not a kind of dangerous drug that is commonly seen and is far less potent than ‘Ice’. He stressed that as no studies of its potency have been conducted on humans, its effect in human is unknown, and the animal studies have shown that the lethal effect of NNDMA is only one-third of that of ‘Ice’.
孔大律師指出N N 二甲基安非他明並非常見的危險藥物而其毒性亦遠較“冰”毒為低。孔大律師強調N N二甲基安非他明並沒有以人類作為對象，試驗其毒性，故對人類的影響資料不詳，而對動物的測試結果亦顯示其毒性與“冰”毒的毒性相比，只有三分一。

Mr. Hung said that according to Professor Tang’s report, in mice studies, the effect of depleting the substance dopamine, a neurotransmitter in the central nervous system, of NNDMA is only approximately one-eighth of that of ‘Ice’. And in mice and monkeys studies comparing NNDMA and ‘Ice’ in terms of the stimulant effect, NNDMA is 5 to 12 times less potent than ‘Ice’ while ‘Ecstasy’ is 7 times less potent than ‘Ice’. The median figure of the former is not far from the latter.
孔大律師指據鄧偉光博士的報告，以老鼠為實驗對象的研究顯示，N N二甲基安非他明對中樞神經內的神經傳導物質多巴胺(Dopamine)的消減效果只有約1/8而以老鼠及猴子為研究對象的實驗則顯示N N二甲基安非他明能導致的興奮作用和“冰”毒相比只是約1/12至1/5倍 之間，其中位數和“忘我”的1/7倍相差不遠。

Mr. Hung’s stance is that not only is NNDMA less potent than ‘Ice’, but it is also less potent than ketamine and even ‘Ecstasy’, so its applicable starting point should also be lower than the starting points applicable to those types of dangerous drugs. Mr Hung also emphasized that NNDMA is far less commonly abused than other types of drugs.
孔大律師的立場是NN二甲基安非他明的毒性不但較“冰”毒為低，亦較氯胺酮（“K仔”），甚至（“忘我”）為低，故其適用的量刑基準亦應較適用於該些毒品的量刑基準為低。孔大律師強調濫用N N二甲基安非他明的程度亦遠較濫用其他毒品為低。

Mr. Hung submitted that the starting point of 18 years adopted by the trial judge is manifestly excessive.
孔大律師認為原審法官採納的18年量刑基準屬明顯過重。

The respondent’s stance
答辯人的立場

Mr. Robert Lee, SC, for the respondent, agreed that NNDMA is less potent than ‘Ice’. He pointed out that in animal studies comparing NNDMA and ‘Ice’, the former is 3 times less potent than the latter and the stimulant effect of the former on the central nervous system is 5 to 12 times less potent than the latter.
代表答辯人的李紹強資深大律師同意NN二甲基安非他明的毒性較“冰”毒為低。李資深大律師指出NN二甲基安非他明和“冰”毒相比，以動物測試而言，毒性只及“冰”毒的三份一而刺激中樞神經作用則是約1/12至1/5倍之間。

Mr. Lee SC pointed out that the above finding is similar to the findings of the ad hoc report cited in HKSAR v So Shuk-yee CACC 460/2004, namely according to a study by a Johns Hopkins School of Medicine research team, the behavioural effects that NNDMA can exert are only 10% to 20% of those that ‘Ice’ can exert. But Mr. Lee SC stressed that the lethal dosage of NNDMA is 3 times that of ‘Ice’ while that of ‘Ecstasy’ is 16 times, it shows that NNDMA is much more potent than ‘Ecstasy’.
李資深大律師指出上述說法和香港特區政府 訴 蘇淑儀 CACC 460/2004案中所引用的專案報告內容相約，即根據Johns Hopkins School of Medicine曾進行的研究，NN二甲基安非他明所產生的異常行為是和“冰”毒相比，只有10% 至20% 。但李資深大律師強調N N二甲基安非他明的致命劑量是“冰”毒的三倍，而“忘我”則是16倍，表示N N二甲基安非他明的毒性遠較“忘我”為高。

Mr. Lee SC submitted that it is more reliable and rational to use the sentencing guidelines for trafficking in ‘Ice’ as the sentencing basis for trafficking in NNDMA.
李資深大律師認為用販運“冰”毒罪行的量刑指引作為販運NN二甲基安非他明罪行的量刑基礎是較可靠及合邏輯的。

At the same time, Mr Lee SC submitted that the court should take the following factors into account when it considers the offence of illegal trafficking of the dangerous drug NNDMA:
李資深大律師同時認為法庭在考慮非法販運NN二甲基安非他明毒品時應將下列因素考慮在內：

(1)There has been a trend of NNDMA being widely used recently. According to the ad hoc report:
（一）  NN二甲基安非他明近期有廣泛使用的趨勢。根據專案報告：

(i)This type of dangerous drug appeared in Asian countries in the past 10 years, and for example, there has been a rising trend of abuse of it in Taiwan;
(i)這類毒品在過往10年有在亞洲出現，並且以台灣為例其被濫用的情況有增加趨勢；

(ii)This type of drug has been found as an adulterant in ‘Ecstasy’ in Hong Kong in the past;
(ii)這類毒品過往在香港曾被發現攙雜在“忘我”之中；

(iii)According to the relevant statistics for the years 2001 to 2003, there has been a steady increase in cases and amount of seizures of this type of drug in Hong Kong.
(iii)香港2001至2003年有關數據顯示這類毒品被搜獲的案件正穩步上升。

(2)According to the figures of the Narcotics Bureau, there are 11 cases of trafficking in NNDMA in the first 10 months of 2007 and the amount of seizures are 4,690 grammes which are nearly 10 times the amount of seizures in 2006.
（二）根據毒品調查科數字, 2007年頭10個月販運NN二甲基安非他明的案件有11宗，而搜獲的數量有4,690克，較2006年搜獲的數量多近10倍。

(3)The known use of NNDMA can make ‘Ice’ even more extensively abused.
（三）NN二甲基安非他明的已知用途可令“冰”毒更泛濫。

(4)The amount of drug involved in the present case is enormous.
（四）涉案毒品的數量龐大。

Mr. Lee SC submitted that given the amount of NNDMA in the present case and taking into consideration the factors listed above, the starting point of 18 years adopted by the trial judge on the first charge cannot be described as excessive.
李資深大律師認為以本案NN二甲基安非他明毒品的數量，再考慮上述因素在內，原審法官就首項控罪的採納量刑基準18年並不為過。

Discussion
討論

Although the potency of NNDMA and ‘Ice’ (methamphetamine) are different, they are of the same category of drug and both are produced by synthesizing various chemicals in laboratories. We agree with the stance of Mr. Lee SC that the more reliable and rational approach would be to deal with the sentencing for trafficking in NNDMA on the basis of the sentencing for trafficking in ‘Ice’ and to make appropriate adjustment on account of their difference in potency.
NN二甲基安非他明和“冰”毒（“甲基安非他明）毒性不同，但屬同類毒品，都是在實驗室將不同化學原料經化學合成製造而成。本庭認同李資深大律師的立場，在考慮販運NN二甲基安非他明罪行的量刑時，以販運“冰”毒的量刑為基礎，再以兩者的毒性不同而作出適當調節是可靠及較合邏輯的處理方法。

Mr. Hung emphasized that in considering the potency of NNDMA, one should bear in mind that there has been no study of NNDMA’s effects in humans.
孔大律師強調在考慮NN二甲基安非他明的毒性時，要緊記NN二甲基安非他明的影響並沒有用人類做過實驗。

Although the potency of NNDMA has not been ascertained by means of human studies, we are of the view that the findings of the animal studies conducted in mice and monkeys are sufficient to reflect the potency of the drug and are also applicable to humans. This approach is approved by the Court of Appeal in HKSAR v Hii Siew-cheng, Wong Yat-san [2009] 1 HKLRD 1. (See paragraph 64 of the Judgment)
雖然NN二甲基安非他明的毒性，未有以人類為實驗來測試過，但本庭認為以動物，包括猴子和老鼠為測試對象的實驗結果足以反映其毒性強弱，對人類亦適用。上述處理方法在HKSAR 訴 許守城、黃日新 [2009]1 HKLRD 1案獲上訴法庭認同。（見該案判案書第64段）

The undisputed literature and expert’s reports show that the potency of NNDMA is approximately one-third of that of ‘Ice’ and its stimulant effect on the central nervous system is approximately 5 to 12 times less effective than that of ‘Ice’. The depleting effect of NNDMA to the substance dopamine, a neurotransmitter, is about one-eighth of that of ‘Ice’.
雙方沒有爭議的文獻及專家報告顯示NN二甲基安非他明和“冰”毒相比，其毒性約為三份一，刺激中樞神經的興奮作用則約為1/12至1/5倍。N N二甲基安非他明對神經傳導物質多巴胺(Dopamine)的消減力亦達1/8。

Although the potency of NNDMA is only about one-third of that of ‘Ice’, it does not mean that the starting point of sentencing for trafficking in NNDMA should also only be one-third of that for trafficking in ‘Ice’.
雖然NN二甲基安非他明的毒性只有“冰”毒的毒性的三份一，但不表示販運NN二甲基安非他明罪行的量刑基準亦應只是販運“冰”毒罪行的量刑基準的三份之一。

Apart from the potency of the drugs in question, the court must also give regard to the public abhorrence of the offence of trafficking in dangerous drugs and to the resolve of the community to prevent young people from abusing drugs as well as to combat the crime of drug trafficking. The court should also take the use of the drug and the prevalence of its abuse into consideration.
除了有關毒品毒性的強弱外，法庭需要考慮社會大眾對販毒罪行嫌惡及防止青少年濫藥和打擊販毒罪行決心。法庭亦應將有關毒品的用途及其濫用的廣泛性一起考慮。

The court certainly cannot lose sight of the fact that the maximum sentence for illegal trafficking in NNDMA is life imprisonment.
法庭當然不能忽視非法販運NN二甲基安非他明罪行的最高判刑是終身監禁。

The available data show that NNDMA has no known medical use, and is rarely abused as a single substance but is often found in mixture with other drugs, including ‘Ecstasy’ and ‘Ice’, for the use of drug addicts. To stop the wide abuse of NNDMA can also stop the wide abuse of dangerous drugs like ‘Ecstasy’ and ‘Ice’.
有資料顯示NN二甲基安非他明沒有醫學用途，很少單獨使用，而多是和其他毒品，包括“忘我”，“冰”等一起混和後，供吸毒者使用。制止NN二甲基安非他明的氾濫亦能抑制“忘我”，“冰”等毒品氾濫。

Even if there is no sign of serious abuse of NNDMA, the court still has the duty to nip the trafficking of such drugs in the bud. Where there are data showing serious abuse of NNDMA, the court should all the more deal with the situation by heavy sentences in the hope of deterring such type of crime from continuing to develop.
即使沒有跡象顯示濫用NN二甲基安非他明的情況嚴重，法庭亦有責任將販運該等毒品罪行制止於其萌芽狀態。假若有資料顯示濫用NN二甲基安非他明的情況嚴重，法庭更應以重刑對待，希望能阻嚇該類罪行的持續發展。

Of course, it is necessary to strike an appropriate balance between the consideration of the above factors and the potency of NNDMA. Having considered all the factors, we are of the view that the starting point of sentence for the trafficking of NNDMA should be 60% of that for trafficking in the same quantity of ‘Ice’.
當然上述因素亦需和NN二甲基安非他明的毒性取得一些合適的平衡。經考慮過全部因素後，本庭認為販運NN二甲基安非他明的罪行量刑基準應該是販運同等份量“冰”毒的量刑基準的60%。

On the basis of the above approach, the appropriate starting point of sentence for illegal trafficking of about 4,680 grammes of ‘Ice’ should be 25 years and that for illegal trafficking of about 4,680 grammes of NNDMA should then be 15 years.
以上述處理方法，非法販運約4,680克“冰”毒的適當量刑基準為25年而非法販運約4,680克NN二甲基安非他明的適當量刑基準則應為15年。

The potency of NNDMA and that of ‘Ecstasy’ are alike. As said above, the median figure of the comparison between NNDMA and ‘Ice’ in terms of the stimulant effect is not far from the figure in respect of the comparison between ‘Ice’ and ‘Ecstasy’. And the lethal effect of NNDMA is even 5 times more than that of ‘Ecstasy’.
和“忘我”比較，NN二甲基安非他明的毒性相約。如上文所述，NN二甲基安非他明能導致的興奮作用和“冰”毒相比的中位數和“忘我”相差不遠，而其致命毒性更較“忘我”高逾五倍。

According to HKSAR v Lee Tak-kwan [1998] HKLRD 46, the appropriate starting point of sentence for illegal trafficking of over 800 grammes of ‘Ecstasy’ is already 8 years upwards. If the quantity of ‘Ecstasy’ is 4,600 grammes, the appropriate starting point should not be below 15 years. In fact, the Court of Appeal held in HKSAR v Chui Chi-wai [2000] 1 HKLRD 704 that the starting point for trafficking in the region of 4,400 grammes of ‘Ecstasy’ should be 15 years. We cannot lose sight of the fact that the tariffs for sentence for illegal trafficking of ‘Ecstasy’ have been greatly increased by the Court of Appeal in June 2008. In Hii Siew-cheng, Wong Yat-san mentioned above, the Court of Appeal set the starting point for trafficking exceeding 1,000 grammes of ‘Ecstasy’ at 14 years upwards. If applying the starting point in Hii Siew-cheng, Wong Yat-san to the present case where the quantity is over 4,600 grammes, the appropriate starting point would certainly be exceeding 20 years.
根據HKSAR v Lee Tak Kwan [1998] HKLRD 46案，非法販運800克以上的“忘我”，適當的量刑基準已超過八年。假若“忘我”份量達4,600克，適當的量刑基準不應低於15年。事實上在HKSAR v Chui Chi Wai [2000] 1 HKLRD 704案，上訴法庭認為涉及約4,400克的“忘我”販毒罪行，量刑基準應為15年。本庭不能忽視非法販運“忘我”的罪行判刑，在2008年6月被上訴法庭大幅度提升。在上述許守城、黃日新案，上訴法庭將販運超過1,000克“忘我”的量刑基準定為超過14年。假若將許守城、黃日新案的量刑基準施用於本案，以超過4,600克而言，適當的量刑基準必然超過20年。

As the offences in the present case were committed in March 2007 prior to the date of judgment of Hii Siew-cheng, Wong Yat-san, it might result in injustice to the two applicants in the instant case if the starting point of sentence in that case were to apply to them. We are of the view that, in taking the approach which is more favourable to the two applicants, the starting point for trafficking illegally in 4,680 grammes of NNDMA should be 15 years’ imprisonment instead of 18 years. As a result, the starting point of 18 years taken by the trial judge is manifestly excessive.
本案在2007年3月干犯，較許守城、黃日新案的判案日期為早，因此將該案的量刑基準施用於兩名申請人對他們可能構成不公。本庭認為以對兩名申請人較有利的處理方法，非法販運4,680克NN二甲基安非他明罪行應導致的量刑基準應為15年監禁而非18年，因此原審法官採納的18年屬明顯過重。

But we must emphasize that should the situation of the abuse of NNDMA become more serious, the court may be required to increase the relevant starting point so as to reflect the resolve of the courts to combat the crime of drug trafficking.
但本庭須強調，假若濫用NN二甲基安非他明的情況惡化，法庭可能需要將有關量刑基準加重以反映法庭打擊販運毒品罪行的決心。

We grant leave to the two applicants to appeal against sentence and, treating the applications as the appeal proper, we allow their appeals. On the first charge, the sentence of both applicants of 18 years is reduced to 15 years. The 6 months’ imprisonment imposed on Ngan for the second charge is also ordered to run concurrently with the 15 years imposed for the first charge.
本庭批准兩名申請人就判刑上訴。本庭視其申請為正式上訴，並判其上訴得直。就首項控罪，兩名申請人的刑期都由18年減至15年。就第二項控罪，顏家俊被判的6個月刑期亦和首項控罪的15年刑期同期執行。

Conclusion
結論

We dismiss Tsui’s application for leave to appeal against conviction out of time but we grant leave to Ngan and Tsui to appeal against sentence and treat their applications as the appeal proper. We allow their appeals and substitute their sentences as set out above.
本庭駁回徐偉勝就定罪的逾期上訴許可申請，但批准顏家俊和徐偉勝就判刑的上訴許可申請，並視他們的申請為正式上訴。本庭裁定他們的上訴得直，並將他們的刑期改判如上。

Mr. Robert S K Lee, SC, SADPP & Mr. Chiu Wai Tin, Senior Public Prosecutor of the Department of Justice, for the Respondent.
答辯人：由律政司高級助理刑事檢控專員李紹強資深大 律師及高級檢控官趙偉天代表。

Mr. Kan Ting To, instructed by Messrs. Foo & Li, assigned by the Director of Legal Aid, for the 1st Applicant (re sentence).
第一申請人（刑罰）：由法律援助署委派李鳳翔律師事務所轉聘大律師簡定濤代表。

Mr. Andy Hung, instructed by Messrs. Lo, Wong & Tsui, assigned by the Director of Legal Aid, for the 2nd Applicant (re sentence).
第二申請人（刑罰）：由法律援助署委派盧王徐律師事務所轉聘大律師孔慶碩代表。

The 2nd Applicant (re application for leave to appeal against conviction out of time) in person, present.
第二申請人（定罪逾期申請）：無律師代表，親自應訊。