Cheung JA (giving the judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案書：

Facts of the case
案情

The applicant pleaded guilty to one count of Trafficking in a Dangerous Drug, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance (‘the Ordinance’), Cap 134, before Deputy High Court Judge Patrick Li. The dangerous drug in question was 2.96 kilogrammes of cocaine. Deputy Judge Li sentenced the applicant to 18 years and 8 months’ imprisonment. The applicant applies for leave to appeal against sentence.
申請人在高等法院原訟法庭暫委法官李瀚良席前承認一項「販運危險藥物」罪，違反《危險藥物條例》(《條例》) (香港法例第 134 章)第 4(1)(a) 及 (3) 條。涉案的危險藥物是2.96公斤的可卡因。李法官判處申請人監禁18年8個月。申請人就刑期提出上訴許可申請。

The facts of the case are that the applicant arrived Hong Kong by air from Johannesburg, South Africa, on 8 August 2009. When entering Hong Kong at the Hong Kong International Airport, he was stopped by Customs Officer who searched his suitcase. The Customs Officer found that the weight and stiffness of the clothing and towels inside the suitcase were unusual. Upon analysis, the said items were confirmed to have been mixed with cocaine. The applicant claimed that he carried the drug to Hong Kong from Lima for a man called ‘Ah Ching’ (transliteration) for a reward of $50,000. The drug was to be handed over to another person later. The retail value of the drug was HK$2,074,960. The applicant was 18 at the time of the offence. He would turn 19 three months thereafter.
案情顯示2009年8月8日申請人從南非約翰內斯堡飛抵香港，在香港國際機場入境時被海關人員截停及搜查他的行李箱。海關人員發覺該行李箱內所載着的衣物、毛巾的重量和硬度有異樣，有關物品其後被化驗及被證實滲入了可卡因。申請人稱聲他為了五萬元的酬金替一名叫「阿清」的男子從利馬把這些毒品運到香港，然後交給另一名人士。這批毒品的零售價為 HK$2,074,960。申請人在犯案時年18歲，差三個月就滿19歲。

The sentencing by Deputy Judge Li in the Court of Appeal(sic)
李法官在上訴法庭的量刑

In passing sentence, Deputy Judge Li referred to the sentencing guideline on Trafficking in Dangerous Drugs cases set down in HKSAR v. Abdallah [2009] 2 HKLRD 437 and adopted 25 years as the starting point. He added 3 years to that as the case involved shipping drugs to Hong Kong from overseas. In light of the guilty plea, Deputy Judge Li reduced the sentence by one third (i.e. 9 years and 4 months); the sentence passed in the end was 18 years 8 months’ imprisonment.
李法官首先根據HKSAR v. Abdallah [2009] 2 HKLRD 437一案的「販運危險藥物」罪的量刑指引，將本案的量刑基準定為25年，另外因涉案毒品是從外地運到香港，再加刑3年，由於被告人認罪，李法官扣減三分之一的刑期(即9年4個月)，最終刑期為18年8個月監禁。

Case authority
案例

On 12 March 2009, in the case of Abdallah, the Court of Appeal set down sentencing guideline on cases where the amount of heroin or cocaine being trafficked is over 600 grammes. If the quantity of drugs involved is 1,200 to 4,000 grammes, the applicable sentence is 23 to 26 years of imprisonment. Besides, the Court of Appeal said if there was an international dimension to the background of the drug trafficking, and the quantity of drugs in question was one kilogramme or over, the court can enhance the sentence by no less than 2 years of imprisonment.
上訴法庭在2009年3月12日在Abdallah一案就販運超過600克海洛英或可卡因制訂了刑期指引。若有關毒品的份量是1,200 至4,000克，適用的刑期是23至26年監禁。另外，上訴法庭指出若果案件涉及國際販毒背景，而有關的毒品份量為一公斤或以上，法庭可以加刑，但不少於兩年監禁。

Opinion of this Court
本庭的意見

The applicant accepted the starting point of 25 years adopted by Deputy Judge Li. The only contention in this case is the extent to which the sentence was enhanced. This Court is of the view that the 23 to 26 years of imprisonment set down by the Court of Appeal is already a harsh one set with a view to deterring drug traffickers. The Ordinance in fact defines ‘trafficking’ to include the ‘importing’ and ‘exporting’ of drugs. This Court is of the view that the main reason for the need to enhance sentence in cases where there is an international dimension such as ‘importing’ and ‘exporting’ is because it is the most serious amongst the various types of drug trafficking activities. This Court, however, does not think the extent of the enhancement mentioned in the Abdallah case requires scaling up according to the quantity of the drugs; we are of the view that the sentence in the end has to be uniform and appropriate.  This Court considers that reference can be made to HKSAR v. Hong Chang Chi [2002] 1 HKLRD 486, which had been discussed by the court in the case of Abdallah. Three kilogrammes of cocaine was involved in the case. The starting point the court adopted was 27 years. The courts of Hong Kong have since the case of Abdallah adopted a 2-year enhancement in passing sentence in drug trafficking cases where there is an international background.
申請人接納李法官所採用的25年刑期基準。本案唯的一爭議點是加刑的幅度。本庭認為上訴法庭所訂定的23至26年監禁已經是個嚴峻的刑期,以祈能對毒販起阻嚇作用。《條例》就「販運」毒品的定義其實是包括「入口」及「出口」的毒品的元素。本庭認為涉及國際背景如「入口」或「出口」的販毒需要加刑的主要原因是它們是各類形的販運毒品活動中最嚴重的一種。但本庭不認為Abdallah一案所提出的加刑幅度是需要根據毒品的份量而遞增，本庭認為最終的刑期是要均匀及恰當。本庭認為可以參考HKSAR v. Hong Chang Chi [2002] 1 HKLRD 486一案，它曾經在Abdallah一案中被法庭討論過。該案涉及販運三公斤的可卡因，法庭採用的量刑基準為27年。香港法庭在Abdallah一案後，凡涉及國際販毒背景的案件多都採用兩年的加刑幅度。

Having regard to the age of the applicant at the time of the offence and the fact that this is the first time he committed the offence of trafficking in a dangerous drug, this Court considers that a 2-year enhancement is already a sufficient punishment. We therefore allow the application, and treating it as the appeal itself, vary the original starting point of 28 years to 27 years. After taking off one third of the sentence (i.e. 9 years) for the guilty plea, in the end, he is sentenced to 18 years of imprisonment.
本庭認為在考慮過申請人犯案時的年紀及他是第一次干犯涉及販運毒品的罪行，加刑兩年已經是足夠的刑罰，故此本庭批准申請，視申請為正式上訴，將原本的28年量刑基準改為27年，扣減因認罪的三分之一刑期(即9年)後，最終刑期為18年監禁。

Ms Irene Fan, Senior Public Prosecutor, of the Department of Justice, for the Respondent.
答辯人：由律政司高級檢控官范凱琳代表。

Mr Kevin Chan, assigned by the Legal Aid Department, for the Applicant.
申請人：由法律援助署署長轉聘陳世傑大律師代表。