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CFA_Judgement_Corpus_97-22

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{ "en": "Ms. Virginia Lau, Senior Public Prosecutor of the Department of Justice, for the HKSAR.", "zh-HK": "答辯人：由律政司高級檢控官劉少儀代表香港特別行政區。" }

{ "en": "Ms. Sylvia Lee, instructed by Messrs. Lee Wong & Co., for the Applicant.", "zh-HK": "申請人：由李氏律師行轉聘李曉華大律師代表。" }

{ "en": "Hon Barnes J (giving the judgment of the Court):", "zh-HK": "原訟法庭法官張慧玲頒發上訴法庭判案理由書 ：" }

{ "en": "Background", "zh-HK": "背景" }

{ "en": "The applicant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. He pleaded not guilty to the charge before Deputy Judge Sham in the District Court but pleaded guilty to possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the said Ordinance. The prosecution no longer proceeded with the trafficking charge, and the summary of facts was amended by deleting the phrase which stated that the applicant “was in possession of the dangerous drug for the purpose of trafficking”. Deputy Judge Sham convicted the applicant of possession of a dangerous drug and sentenced him on that basis. The drug involved was 5.47 grammes of “ice”.", "zh-HK": "申請人本被控一項「販運危險藥物」罪，違反香港法例第134 章《危險藥物條例》第4(1)(a) 及 (3) 條。申請人在區域法院暫委法官沈‍小‍民席前否認控罪，但承認「管有危險藥物」罪，違反上述《危險藥物條例》第8(1)(a) 及 (2) 條。控方遂不再就「販運危險藥物」罪檢控申請人。有關案情亦作出修改，將申請人「管有涉案危險藥物作販運用途」此句刪除。沈‍法官裁定申請人管有危險藥物罪名成立，及以該基礎判刑。涉案的危險藥物是5.47 克「冰毒」。" }

{ "en": "The applicant was sentenced to 20 months’ imprisonment. He appeals against this sentence.", "zh-HK": "沈‍法官判處申請人監禁20 個月。申請人就判刑提出上訴。" }

{ "en": "Following the hearing, we granted leave to appeal and, treating the hearing as the appeal itself, we allowed the appeal, set aside the sentence of 20 months’ imprisonment and substituted therefor a sentence of 16 months’ imprisonment. Our reasons are set out below.", "zh-HK": "本庭在聆訊後批准上訴許可，並視之為正式上訴。上訴得直，20 個月監禁刑期撤銷，改判16 個月監禁。以下是本庭的理由。" }

{ "en": "Admitted facts", "zh-HK": "承認案情" }

{ "en": "The facts admitted by the applicant revealed that at the material time, the police searched the room in which the applicant resided and found on a table a bag containing 0.20 gramme of “ice” and 42 re-sealable plastic bags. In addition, a plastic bag containing 5.27 grammes of “ice” was found from a pocket of a men’s jacket inside a wardrobe.", "zh-HK": "申請人承認的案情顯示，警方人員在案發時搜查申請人居住的房間，在枱上找到一包載有0.20 克冰毒的膠袋和42 個可再封口膠袋。另外在衣櫃內一件男裝外套的袋內找到一包載有5.27 克冰毒的膠袋。" }

{ "en": "Under caution, the applicant said that all the “ice” was bought by him for $3,000 and was for his own consumption. He also said that the re-sealable plastic packets were to be used for packaging earrings, although he did not have any earrings at the material time.", "zh-HK": "警誡下，申請人指全部冰毒是他以 $3,000購入，供他本人自用。枱上的可再封口膠袋是用作包裝耳環之用，但他當時並無任何耳環。" }

{ "en": "The “ice” in question had a street value of $3,916.80.", "zh-HK": "涉案冰毒的巿值是 $3,916.80。" }

{ "en": "The applicant’s background and mitigation", "zh-HK": "申請人的背景及求情陳詞" }

{ "en": "Deputy Judge Sham obtained a Drug Addiction Treatment Centre (DATC) report before sentence. The report details the applicant’s background, which can be briefly described as follows.", "zh-HK": "沈‍法官在判刑前索取了戒毒所報告書，內容有申請人的詳盡背景資料，本庭祇簡述如下。" }

{ "en": "The applicant, aged 38, had 14 previous convictions, six of which were for possession of dangerous drugs. At the material time, he resided with his girlfriend in the room in question. Their daughter was born while he was on bail. He quit schooling after completing Form 3 and had worked variously as an apprentice hairdresser, waiter, transportation worker, etc. At the material time, he worked as a car salesman earning a basic monthly salary of $4,000.", "zh-HK": "申請人年38 歲，有14 項刑事紀錄，其中6 項是管有危險藥物。申請人在案發時與女友居於涉案的房間。在擔保期間，女兒出生。申請人在讀中三後輟學。他曾任理髮學徒、侍應、運輸工人等工作。案發時任汽車經紀，每月底薪為 $4,000。" }

{ "en": "The applicant initially took cannabis for fun. Then he started to abuse psychiatric drugs and eventually took to abusing “ice”. He was sentenced to a DATC for treatment in 2009.", "zh-HK": "申請人最初因為貪玩吸食大麻，其後開始濫用精神科藥物，最後更濫用冰毒。在2009 年曾經被判往戒毒所接受治療。" }

{ "en": "In mitigation, the then Counsel for the applicant submitted that the applicant had been cooperative with the police and had frankly pleaded guilty, and that birth of his daughter during the bail period had made him realize the importance of family love. He promised the Deputy Judge that he would make contributions to society in future.", "zh-HK": "申請人當時的代表大律師求情時，指申請人與警方合作和坦白認罪。申請人的女兒在他擔保期間出世，令他感到親情可貴。他向沈‍法官承諾他他日會貢獻社會。" }

{ "en": "In relation to the “latent risk” factor, Counsel for the applicant submitted that on the facts, the present case was “just social trafficking taken at the highest”, since both the applicant and his girlfriend had “this hobby”. It was submitted that they would not get involved in drugs again after this incident.", "zh-HK": "就「潛在風險」這個範疇，申請人代表大律師指本案案情「極其量祇屬社交性販運」，因為申請人與其女友均有「這種嗜好」。大律師指經此次經歷之後，兩人不會再接觸毒品。" }

{ "en": "Reasons for sentence", "zh-HK": "判刑理由" }

{ "en": "Taking into account the facts of the case, the background of the applicant and the mitigation put forward on his behalf, and having considered the case of HKSAR v Mok Cho Tik [2001] 1 HKC 261, Deputy Judge Sham considered that the quantity of the “ice” in question was “quite significant” and adopted a starting point of 18 months’ imprisonment. He also considered that the “latent risk” was “rather high” and enhanced the sentence by 12 months. The applicant was given one-third discount in sentence and was sentenced to 20 months’ imprisonment.", "zh-HK": "沈‍法官在考慮了案情、申請人背景、求情陳詞，及考慮了案例莫祖廸 (譯音) 後，認為涉案的冰毒份量「相當之多」，以18 個月為量刑起點。沈‍法官認為「潛在風險」「相當之大」，加刑12 個月，給予申請人三份之一刑期扣減之後，判刑20 個月監禁。" }

{ "en": "Grounds of appeal", "zh-HK": "上訴理由" }

{ "en": "The grounds of appeal advanced by Mr Lam, Counsel for the applicant, are essentially as follows:", "zh-HK": "申請人代表林‍漢‍環大律師提出的上訴理由，基本上是指；" }

{ "en": "The 18-month starting point adopted by the Deputy Judge is excessive.", "zh-HK": "沈‍法官以18 個月為量刑起點是過重。" }

{ "en": "The 12-month enhancement imposed by the Deputy Judge on the ground of “latent risk” is too high.", "zh-HK": "沈‍法官因為「潛在風險」因素加刑12 個月是過高。" }

{ "en": "The overall sentence of 20 months’ imprisonment is manifestly excessive.", "zh-HK": "整體而言，20 個月的總刑期是明顯過重。" }

{ "en": "Relying on cases such as Mok Cho Tik and HKSAR v Jarhia Kuldeep Singh, CACC 96/2006, Mr Lam submitted that the starting point should be 15 months and the enhancement 6 months, making a total sentence of 14 months.", "zh-HK": "林‍大律師引用莫祖廸、Jarhia Kuldeep Singh等等案例，指量刑起點應是15 個月，加刑應是6 個月，總刑期應是14 個月。" }

{ "en": "Respondent’s reply", "zh-HK": "答辯人回應" }

{ "en": "Miss Chan, Acting Senior Public Prosecutor for the respondent, replied that in light of all the circumstances of the present case and the applicant’s criminal record, the starting point of 18 months was not excessive, nor was the 12-month enhancement too high, and the overall term of 20 months was by no means manifestly excessive.", "zh-HK": "答辯人代表署理高級檢控官陳‍冰‍華大律師回應指，以本案的所有情況及申請人的犯案紀錄而言，18 個月的量刑起點並非過重，12‍個月的加刑亦非過高，20 個月的總刑期並非明顯過重。" }

{ "en": "Miss Chan argued that the circumstances of the applicant were different from the cases cited by Mr Lam. Although the “ice” in question weighed 5.47 grammes, the applicant had six previous convictions for possession of dangerous drugs and abused “ice” together with his cohabiting girlfriend. The 12-month enhancement was (Miss Chan submitted) not excessive.", "zh-HK": "陳‍大律師指申請人的情況有別於林‍大律師所引述的案件。雖則申請人涉及的冰毒是5.47 克，但他有6 次管有危險藥物前科及與同居女友一同濫用冰毒，12 個月加刑幅度並不過份。" }

{ "en": "Our views", "zh-HK": "本庭所作的考慮" }

{ "en": "The three grounds of appeal can, we think, be dealt with together.", "zh-HK": "本庭認為3 項理由可以一併處理。" }

{ "en": "First, in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405, having considered the authorities, the Court of Appeal held that in determining an appropriate sentence for a bona fide drug user who is convicted of simple possession of dangerous drugs, the judges should adopt the following three-step approach (see 407 C to H):", "zh-HK": "首先，上訴庭在溫尚深 (譯音)一案，考慮了以往的案例後，裁定法官在判處一名真正吸毒者管有危險藥物時，應該有以下3 個步驟 (判詞第407 頁C至H 行)：" }

{ "en": "“Step 1: The judge should normally determine a starting point of between one year to eighteen months’ imprisonment.", "zh-HK": "意思是步驟 (一) ：一般而言，法官就管有危險藥物罪應定下1 年至18 個月監禁的量刑起點。" }

{ "en": "Step 2:The starting point is increased or enhanced to take account of the latent risk factor in order to arrive at a total sentence. This will reflect the risk to society of the drugs being redistributed and finding their way into other hands apart from the offender’s. The latent risk will be determined from all the circumstances in any particular case, including of course the quantity of drugs possessed and the personal circumstances of the offender.", "zh-HK": "步驟 (二) ：此量刑起點可因應該危險藥物被再分配及流入其他人手中的潛在風險而上調。潛在風險須根據每宗案件的整體情況而決定，包括毒品份量及犯案者的個人狀況。" }

{ "en": "Step 3:The total sentence is then adjusted to take account of the mitigating factors, such as a guilty plea.”", "zh-HK": "步驟 (三) ：因應求情理由 (如認罪) 而再調整總刑期。" }

{ "en": "The Court of Appeal endorsed the above sentencing approach in Mok Cho Tik.", "zh-HK": "上訴庭在莫祖廸 一案確立了以上的判刑步驟。" }

{ "en": "In Mok Cho Tik, the Court of Appeal said (at 267 B to E):", "zh-HK": "在莫祖廸 一案，上訴庭指 (判詞第267 頁B至E 行)：" }

{ "en": "“Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be. The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”", "zh-HK": "意思是量刑起點及因應潛在風險而上調的幅席必須切合每宗案件的情況。如所涉危險藥物的份量是一名真正吸毒者一般會管有的份量，則量刑起點是介乎12至18個月監禁 (而此量刑起點已被區域法院和高等法院的案件採納)。但這並不表示此量刑起點是唯一的合適量刑起點。這是假設監禁比起更新更為必要。如涉案毒品份量是很少而情況允許，並不排除裁判官可判予較短的刑期。有關的危險藥物份量明顯是決定量刑起點的主要因素。若犯案者是一名積犯，便應預期較高的量刑起點。存在風險因素及程度不能以數學方式計算來訂定量刑準則。有關的考慮因素包括犯案人是否無業、毒品的存放地點能否被其他人接觸到、犯案人是否有干犯販運危險藥物的定罪前科，及毒品份量。法庭必須衡量風險的整體情況。" }

{ "en": "In Mok Cho Tik, which involved 15.724 grammes of “ice”, the offender was aged 22 and had one previous conviction for possession of dangerous drugs. He denied selling the drug and said that he would only offer it to people who went to his residence for their consumption. It was not known whether the offender was being employed at the material time. The Court of Appeal took the view that an appropriate starting point was 18 months’ imprisonment and that the sentence was to be enhanced by 12 months to reflect the “latent risk” factor.", "zh-HK": "在莫祖廸 一案，涉案的冰毒是15.724 克。犯罪人22 歲，有一項管有危險藥物的前科。他否認出售冰毒，指他祇是會供應給前往他住所的人服用。無資料顯示犯案人當時是否受僱。上訴庭認為恰當的量刑起點是18 個月，「潛在風險」加刑則為12 個月。" }

{ "en": "In Jarhia Kuldeep Singh, which involved 6.82 grammes of “ice”, the offender was aged 27 and unemployed. He was drug-dependent but was not suitable for admission to a DATC. The Court of Appeal said that 6.82 grammes of “ice” was neither small nor large, and did not accept the offender’s allegation that this quantity was sufficient enough for him to consume for 2 or 3 days. The Court of Appeal considered a starting point of 15 months’ imprisonment appropriate and enhanced the sentence by 12 months.", "zh-HK": "在Jarhia Kuldeep Singh一案，涉案的冰毒是6.82 克。犯案人當時年27 歲、無業、有毒癮但不適合往戒毒所接受治療。上訴庭指6.82 克的份量不算高、亦不算低。法庭不接納犯案人指涉案的份量足夠他服用2至3 日。上訴庭認為恰當的量刑起點是15 個月，而加刑的幅度是12 個月。" }

{ "en": "In HKSAR v Minney [2011] 3 HKLRD 556, the Court of Appeal further explained the legal principle of “latent risk” (at para. 13(a) of the judgment):", "zh-HK": "在HKSAR v Minney 一案，上訴庭進一步解釋「潛在風險」此法律原則 (第13(a)段)：" }

{ "en": "“The word ‘latent’ is misleading, for a consideration of the cases and the rationale for treating the relevant risk as an aggravating factor shows that what is of justifiable societal concern is actual risk disclosed by the facts of the case; in other words, actual risk of dissemination; …”", "zh-HK": "意思是「潛在」此詞有誤導成份。考證以往案件，可見加刑是基於實質風險，因此風險是指實質的散佈風險。" }

{ "en": "On the facts of the present case, taking into account that 5.47 grammes of “ice” was involved, we consider that, notwithstanding the applicant’s six previous convictions for possession of dangerous drugs, the appropriate starting point should be 15 months rather than 18 months.", "zh-HK": "本庭認為以本案的案情而言，考慮了涉案的冰毒是5.47 克，即使申請人有6 次管有危險藥物前科，恰當的量刑起點應是15 個月，而非18 個月。" }

{ "en": "The applicant has no previous convictions for trafficking in dangerous drugs. His multiple convictions for possession of dangerous drugs and the fact that he had been sentenced to a DATC shows that he was a genuine drug user. At the material time, he had a regular job and the “ice” in question was found by the police at his home. Apart from one bag containing a small quantity of “ice” on the table, there was another bag hidden in a jacket pocket. The presence of 42 re-sealable plastic packets was suspicious but, in view of the quantity of the drug and the circumstances in which it was found at the applicant’s home, the actual risk of the drug being disseminated in society was low. As the applicant had by Counsel submitted to Deputy Judge Sham that his girlfriend also abused “ice”, the risk involved was that the applicant and his cohabiting girlfriend would abuse the drug together.", "zh-HK": "申請人並無販運危險藥物的前科。他多次干犯管有危險藥物罪及曾被判往戒毒中心，可見申請人是真正的吸毒者。申請人犯案時有固定職業，在家中被警員發現冰毒。除了一包少量冰毒在枱上，另外一包藏於衣袋內。雖有42 個可再封口膠袋，情況令人懷疑，以涉案的份量及在家找到冰毒此情況而言，涉案冰毒散佈於社會此實質可能性不大。基於申請人透過其代表大律師向沈‍法官指出申請人女友亦是濫用冰毒者，本案的風險是申請人會與他的同居女友一同濫用冰毒。" }

{ "en": "In all the circumstances of the present case, we consider an enhancement of 9 months appropriate.", "zh-HK": "在本案的所有情況下，本庭認為恰當的加刑幅度是9 個月。" }

{ "en": "The applicant was entitled to the usual one-third discount on account of his guilty plea. The appropriate sentence should be 16 months’ imprisonment.", "zh-HK": "申請人坦白認罪，可得三份之一刑期扣減。恰當的刑期應為16 個月。" }

{ "en": "For the above reasons, we grant leave to appeal. Treating the hearing as the appeal itself, we allow the appeal, set aside the sentence of 20 months’ imprisonment and substitute therefor a sentence of 16 months’ imprisonment.", "zh-HK": "基於上述理由，本庭批准上訴許可，並視之為正式上訴。上訴得直，20 個月的刑期撤銷，改判16 個月監禁。" }

{ "en": "Miss Eva Chan, Senior Public Prosecutor (Acting) of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司署理高級檢控官陳冰華代表香港特別行政區" }

{ "en": "Mr Nelson Lam, instructed by F. H. Ho & Co. and assigned by the Legal Aid Department, for the Applicant", "zh-HK": "申請人：由法律援助署委派何福海律師行轉聘林漢環大律師代表" }

{ "en": "Hon Leong CJHC (giving the judgment of the Court):", "zh-HK": "由高等法院首席法官梁紹中宣讀上訴法庭判案書:" }

{ "en": "1.On 6 November 2000, the applicant for leave to appeal (i.e. the defendant) Ng Lok Wan pleaded guilty in the District Court to two counts of burglary. The two charges alleged that the applicant intruded into a residential flat on 6th Floor, No. 9 Tse Mi Alley, Western District on 17 and 19 July 2000 respectively and committed theft therein. On the first occasion, she stole cash in the sum of RMB 700. On the second occasion, she stole a quantity of audio equipment, including, among others, a video-recorder, a radio, a cassette recorder, a CD player and loudspeakers.", "zh-HK": "1．上訴許可申請人（即被告人）吳諾雲於2000年11月6日在區域法院承認兩項入屋犯罪罪名。兩項控罪指申請人在2000年7月17日及19日分別侵入位於西環紫薇街9號6樓一住宅單位偷竊，第一次偷去人民幣700元，第二次偷去一批音響器材包括錄影機，收音機，錄音機，雷射碟機，喇叭等。" }

{ "en": "2.When the victim in this case returned home on 17 July 2000, he discovered that his flat had been broken into and ransacked, and that RMB 700 was missing. When he returned home two days later, he discovered that his flat had been burgled again and that the audio equipment itemised in the second charge was missing. He therefore made a report to the police.", "zh-HK": "2．本案事主於2000年7月17日回家時，發現家中曾被人進入搜掠，失去人民幣700元。兩日後，他回家時，又發現家中再次被人進入偷竊，失去第二項控罪所列出之音響器材，事主於是報警。" }

{ "en": "3.On the following day, the police found some of the audio equipment which was stolen from the victim at a junk store in Second Street, Western District. The storekeeper told the police that he bought the equipment for a low price from a female. Based on the descriptions of the female given by the storekeeper, the police located the applicant and arrested her.", "zh-HK": "3．次日，警員在西環第二街一收買店找到部份事主失去的音響器材。店主向警員透露，該等器材是一名女子以平價售賣給他的。警方根據店主對該名女子樣貌的描述，找到申請人，將申請人拘捕歸案。" }

{ "en": "4.The applicant confessed under caution that she had committed the two offences together with her boyfriend. Her boyfriend broke into the flat to steal, and she was responsible for selling the stolen goods. She had even taken the storekeeper of the junk store to the flat to remove the audio equipment. The fingerprints of the applicant’s right middle finger and right ring finger matched the fingerprints lifted by the police from the flat where the offences took place. The applicant had admitted the above facts.", "zh-HK": "4．申請人在警誡下，承認她與男朋友一同干犯兩案，由男朋友入屋偷竊，她將贓物出售。她並且帶同收買店店主入屋將該批音響器材搬走。申請人右手中指及無名指的指紋與警方在案發單位內套取之指模相符。申請人承認以上的案情。" }

{ "en": "5.The applicant was 20 years old. She had one conviction record for theft but had never been sentenced to imprisonment. According to the assessment report of the Correctional Services Department which was obtained before sentencing, the applicant was a drug addict and therefore not suitable for training in the training centre. At the same time, the probation officer thought that probation was not suitable for the applicant.", "zh-HK": "5．申請人20歲，有一次偷竊犯案紀錄，但從未受過監禁刑罰。根據懲教署對申請人判刑前評估報告，申請人是一名吸毒者，不適宜進入教導所接受訓練。感化官亦認為申請人不適宜接受感化。" }

{ "en": "6.In sentencing the applicant, the judge referred to the serious nature of the two offences in question and considered a custodial sentence necessary. The judge also took the view that the terms of the two offences were to run consecutively, the reason being that although the two offences took place at the same location, they were separated by an interval of two days. The judge adopted a starting point of 36 months in respect of the first offence and a starting point of 42 months in respect of the second offence. After giving the applicant the discount to which she was entitled on account of her plea of guilty and after considering the totality principle, the judge sentenced the applicant to 42 months’ imprisonment.", "zh-HK": "6．法官判刑時稱申請人所犯兩罪屬嚴重罪行，所以要判申請人監禁。法官又以兩案案發相距兩天，但在同一地點，認為兩案之刑期應分期執行。他以36個月監禁為第一項罪名的刑期起點，42個月監禁為第二項罪名的刑期起點，扣除申請人因認罪應獲得的減刑及調整整體刑罰後，法官判申請人監禁共42個月。" }

{ "en": "7.The applicant now seeks leave to appeal against sentence.", "zh-HK": "7．申請人現要求本庭准許她上訴減刑。" }

{ "en": "8.The ground of appeal as submitted by counsel for the applicant is essentially as follows. Both offences took place at the same location and involved the same victim. Furthermore, only a short interval of time elapsed between the two offences. The judge should, therefore, have treated them as one single incident and passed a concurrent sentence in respect of the two offences, and the overall sentence should at most be slightly over 3 years. Counsel also submits that the judge should not have fixed a discrete starting point for each individual offence and then discounted each term on account of the plea of guilty; rather, he should have determined an overall sentence for all the offences covered by the two charges before giving the discount for plea. Counsel submits that the trial judge had erred in law. The case of Attorney General v. Lo Ching Fai [1996] 2 HKCLR 19 is cited to support the above argument.", "zh-HK": "8．申請人的代表大律師向本庭陳述的上訴理由，基本是兩項控罪涉及同一犯案地點，同一受害人，而兩案發生時間相距不遠，法官應將兩項控罪作為單一事件處理，將兩項控罪的刑期同期執行，而整體刑罰不應比稍多於三年之刑期重。大律師又指法官不應就每項控罪，先定下個別的刑期起點，然後個別扣除因認罪可獲的減刑，大律師認為法官應依據兩項罪名涉及的所有罪行，定出整體刑期後，方作出扣減。他指原審法官原則上犯錯誤。大律師引用律政司訴盧清輝（譯音）[1996] 2 HKCLR 19一案以支持以上的論據。" }

{ "en": "9.Counsel also relies on HKSAR v. Law Fat Chai（香港特別行政區訴羅發仔）Crim App 575 of 1997, the facts of which, it is submitted, were similar to those of the present case. The defendant in that case also pleaded guilty to two counts of burglary. On appeal, the Court of Appeal held that the overall sentence should be 2 years and 3 months.", "zh-HK": "9．大律師更引用香港特別行政區訴羅發仔 Crim App No 575 of 1997一案，指該案案情類似本案，而被告人也認罪。該案牽涉兩項入屋犯法罪。在上訴後，上訴庭認為總刑期應是兩年三個月。" }

{ "en": "10.In Lo Ching Fai, the Court of Appeal referred to Attorney General v. Lui Kam Chi [1993] 1 HKC 215 and stated that, in respect of a single offence of burglary in domestic premises, where the defendant is an adult and there are no other aggravating or mitigating factors, the usual starting point is 3 years. If the defendant committed a series of the same offence at different times, the court can adopt a higher starting point in respect of each offence than when there is only a single offence. It is immaterial whether the starting point is fixed on the basis of the sentences being concurrent or consecutive. The important point is, if the sentences are to run concurrently, then the starting point should be higher than when there is only one single charge; if the sentences are to run consecutively, the term for each of the offences must be reduced as appropriate, so that the overall sentence will not become too excessive.", "zh-HK": "10．上訴法庭在盧清輝一案引用律政司訴雷錦池（譯音）[1993] 1 HKC 215一案稱，就單一項進入住宅樓宇犯罪罪名的判刑而論，如果被告人已成年，又無其他可以增加刑罰或減刑的因素，一般刑期起點為三年。如果被告人在不同時間，連串干犯一項以上的同樣罪名，法庭可以較單一項罪名的刑期長的刑期作為每項罪名之刑期起點。無論以同期執行方式或分期執行方式為依據決定刑期起點，都沒有關係。重要的是如果刑期是同期執行，起點必須較單一項罪名的刑罰為高；如果是分期執行，每項罪的刑期必須適當地調低，以免總刑期流於過重。" }

{ "en": "11.It has to be pointed out that the key issue in the present appeal against sentence is whether the overall sentence is appropriate. If it is, then it is immaterial how the sentence is arrived at. We are satisfied that the judge was perfectly entitled to treat the two burglary offences which took place at the same place but at different times as separate incidents. On this basis, we see nothing improper with passing consecutive sentences.", "zh-HK": "11．本庭要指出本上訴減刑的關鍵是整體刑罰是否適當，如果是適當的話，法官如何達成所判之刑期就不大重要。本庭認為法官在本案絕對有理由將兩宗在同一地點但不同時間發 生的爆竊罪行視為不同事件，因此判處分期執行刑罰，並無不妥善之處。" }

{ "en": "12.It is apparent from the facts of the present case that, when the applicant burgled the flat on the first occasion, she realised that the flat was unattended, and the crime went off without a hitch. She was emboldened by this experience to the extent of committing theft on an even larger scale two days later. The applicant was plainly flouting the law and treating other’s properties as her own. In our view, the circumstances of the second burglary were far more serious than those of the first offence.", "zh-HK": "12．從本案案情可見，申請人干犯第二項控罪是由於她在第一次入屋偷竊時，知道屋內沒有人，犯案如此得心應手而獲得鼓勵，繼而變本加厲，在兩日後進行更大規模的偷竊，可見申請人視法律為無物，對他人財物視為己有。本庭認為第二次入屋偷竊的情況比第一次嚴重得多。" }

{ "en": "13.Having regard to the facts of this case, the background of the applicant, and the fact that the applicant had hitherto not been sentenced to imprisonment, we take the view that the sentence of 3½ years upon the applicant’s plea of guilty, which means a starting point of over 5 years, is excessive. A more appropriate overall sentence should, in our view, be 3 years, and leave to appeal is granted accordingly. In coming to this conclusion, we have also taken into account the sentence passed in Law Fat Chai and the similarity between the facts of that case and those of the present case. We therefore conclude that the starting point for the first offence should be 3 years, and the starting point for the second offence, which was even more serious, should be 4½ years. As the two sentences are to run concurrently, the overall starting point should be 4½ years. And as the applicant pleaded guilty and is therefore entitled to a one-third discount, the term should be reduced to 3 years. We allow the applicant’s appeal, set aside the original sentence and replace it with the above sentence.", "zh-HK": "13．本庭考慮本案案情和申請人背景後，及因這次監禁是申請人首次入獄，認為申請人認罪後，法官判監三年半，即以超過五年的刑期為起點，實為過重。本庭認為本案的總刑期應為三年，因此本庭批准上訴許可，本庭達成此結論亦因羅發仔一案所判之刑期及該案之案情與本案案情相似。因此本庭認為第一項控罪之刑期起點應為三年，第二項控罪因較第一項嚴重，刑期起點應為四年半，但兩項刑期同期執行，即總刑期起點為四年半，鑑於申請人認罪扣減三分之一刑期，所以申請人的刑期應為三年。本庭批准上訴，將原判之刑期擱置而代以上述之刑期。" }

{ "en": "Ms Denise Chan, Government Counsel, for the HKSAR.", "zh-HK": "控方 : 由律政司陳鳳珊大律師代表香港特別行政區政府。" }

{ "en": "Mr Andy Hung, instructed by the Legal Aid Department, for the defendant.", "zh-HK": "辯方 : 由法律援助署委派孔慶碩大律師代表被告人。" }

{ "en": "Hon Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案書：" }

{ "en": "The Appellant pleaded guilty in the District Court to six counts of fraud, contrary to section 16A of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong, and was sentenced to 20 months’ imprisonment by Deputy District Judge Woodcock. Having obtained leave, the Appellant now appeals against sentence.", "zh-HK": "上訴人承認六項欺詐罪，違反香港法例第 210 章《盜竊罪條例》第 16(A) 條，被區域法院暫委法官胡雅文判處 20 個月監禁。上訴人獲法庭批予許可可就刑期提出上訴。" }

{ "en": "Facts", "zh-HK": "案情" }

{ "en": "In 2004, the Appellant, without the consent of her employer, made use of her employer’s particulars to apply to six credit card companies for credit cards. Five of the applications were successful and the Appellant was therefore issued with the credit cards as particularised in Charges 1, 2, 3, 5 and 6 against her. She used four of the cards (namely, the cards involved in Charges 1, 2, 3 and 6) and spent approximately $120,000 in various transactions. She has never used the credit card involved in Charge 5.", "zh-HK": "2004 年上訴人在受僱期間私自使用僱主的個人資料分別向六間信用咭公司申請，並成功獲得其中五間信用咭公司發出的信用咭，即控罪一、二、三、五及六所涉及的信用咭。申請人使用過其中四張信用咭（即控罪一、二、三及六的信用咭）來簽賬消費約 $120,000。上訴人沒有使用過第五項控罪的信用咭。" }

{ "en": "On 21 December 2004, the police received a complaint and arrested the Appellant on the same day. She admitted to the offence both at the time of arrest and in the subsequent records of interviews with the police. On 21 December, 22 December 2004 and 13 April 2005, she provided the police with a total of four cautioned statements.", "zh-HK": "2004 年 12 月 21 日警方在接獲舉報後於同日拘捕上訴人。上訴人在被拘捕時及之後與警方的會面記錄中均承認本案的控罪。上訴人在 2004 年 12 月 21 日、12 月 22 日及 2005 年 4 月 13 日分別向警方提供了四份警誡供詞。" }

{ "en": "On 6 July 2005, the Appellant was given an unconditional discharge by the police. However, she was arrested by the police again on 11 September 2006 and was prosecuted and brought to the Eastern Law Courts on 22 September 2006. The case was subsequently transferred to the District Court. At the first hearing before the District Court on 27 October 2006, the Appellant indicated that she would plead guilty to all the charges.", "zh-HK": "2005 年 7 月 6 日，上訴人獲警方無條件釋放，但在 2006 年 9 月 11 日再次被警方拘捕，並於 2006 年 9 月 22 日在東區裁判法院被正式起訴。案件其後被移交至區域法院審理。上訴人於 2006 年 10 月 27 日在區域法院第一次聆訊時向法庭表示她會承認所有控罪。" }

{ "en": "The Appellant pleaded guilty to the six charges on 13 November 2006 before Deputy Judge Woodcock. On 27 November 2006, Deputy Judge Woodcock determined the sentence as follows: a starting point of 3 years’ imprisonment was adopted for Charges 1, 2, 3 and 6. The term was reduced by one-third on account of the Appellant’s guilty plea and then further reduced by 4 months as the Appellant had paid off all credit card debts. The term was therefore reduced to 20 months. For Charges 4 and 5, a starting point of 2 years and 6 months was adopted and the term was reduced by one-third to 20 months on account of the Appellant’s guilty plea. All sentences were to run concurrently, making the total term of 20 months.", "zh-HK": "2006 年 11 月 13 日上訴人在胡法官席前承認六項控罪。胡法官於 2006 年 11 月 27 日作出量刑：第一、二、三及六項控罪的量刑基準為三年監禁，因上訴人承認控罪，扣減其三分之一刑期，又因她已清還了所有信用咭簽賬的欠款而再扣減四個月的刑期，實際刑期為 20 個月監禁；第四及第五項控罪，兩年六個月為量刑基準，因上訴人承認控罪而扣減其三分一的刑期後，實際刑期為 20 個月監禁；所有刑期同期執行，總刑期為 20 個月監禁。" }

{ "en": "Breach of Trust", "zh-HK": "破壞誠信" }

{ "en": "The present case involves a breach of trust. The Appellant made use of her employer’s personal particulars to apply for and obtain a number of credit cards and then used four of them. For the four charges in respect of which the credit cards had been used, we consider the starting point of 3 years adopted by Deputy Judge Woodcock to be appropriate. It was also appropriate to reduce the term by 4 months on the ground that the Appellant has paid off all outstanding sums resulting from the transactions she made with those four credit cards. For the remaining two charges, in view of the fact that one of the credit card companies did not issue the Appellant with a card and that the Appellant did not use another credit card issued, it was appropriate for Deputy Judge Woodcock to adopt 2½ years as the starting point. Nor do we see anything improper in the order for concurrent sentence.", "zh-HK": "本案是一項涉及破壞誠信的案件。上訴人使用僱主的個人資料申請及獲得多張信用咭，並曾使用過其中的四張信用咭。本庭認為胡法官就上訴人使用過信用咭的四項控罪以三年監禁為量刑基準是適當的及因上訴人已清還了這四張信用咭的簽賬欠款而再扣減四個月的監禁刑期亦是適當的；另外胡法官因其中一間信用咭公司沒有批出信用咭和上訴人沒有使用過另一張信用咭而以兩年半監禁為其餘兩項控罪的量刑基準亦是適當的。本庭認為胡法官命令所有刑期須同期執行也是適當的。" }

{ "en": "Delay in prosecution", "zh-HK": "檢控延誤" }

{ "en": "However, this case has an exceptional feature, namely a delay in prosecution. Upon being arrested on 21 December 2004, the Appellant admitted to all the offences with which she subsequently came to be charged. However, she was not formally charged until 22 September 2006. This translates to a delay in prosecution for as long as 21 months.", "zh-HK": "不過，本案存在一個特別情況，就是檢控程序出現延誤。上訴人在 2004 年 12 月 21 日被警方拘捕時已即時招認了本案所有控罪，但直至 2006 年 9 月 22 日她才被正式起訴，即延誤長達 21 個月。" }

{ "en": "In a detailed written submission, Mr. Lai, Acting Senior Government Counsel for the Respondent, pointed out that the four cautioned statements provided by the Appellant during those 21 months did not cover the entire prosecution case, for example:", "zh-HK": "代表答辯人的黎嘉誼署理高級政府律師提供了一份詳細的書面陳詞，他表示在該 21 個月期間，上訴人所提供的四份警誡供詞不足以包含整個控方案情，例如：" }

{ "en": "The statements did not reveal whether any other undisclosed credit cards and victims were involved, the actual number of transactions and amounts involved, the actual number of cash overdrafts and amounts involved, etc.;", "zh-HK": "有沒有涉及其他未被透露的信用咭、其他受害人、實際簽賬次數及數額、實際現金透支額及次數等；" }

{ "en": "The police had to collect evidence from six credit card centres, and three of them supplied complete information, documents and/or statements only at a late stage;", "zh-HK": "警方需要向六間信用咭中心搜集証據，有一半的機構較遲才向警方提供齊全的資料、文件或口供；" }

{ "en": "It took time for the police to conduct investigations on and collect evidence from the shops where the transactions had been made in order to obtain particulars of the transactions. Since as many as 19 shops were involved and some of them had relocated during the investigation period, the police needed time in locating them. Furthermore, as the transactions were made quite some time ago, it took time for the shops to check the relevant records; and", "zh-HK": "警方需時向曾接受那些信用咭購物消費之商店進行調查及取証，以獲取有關交易的詳細資料，因涉及的商店眾多（19 家），其中一些已經在調查期間遷離原址，警方需時追查。另外，因交易已在相當時間之前進行，各商店需時翻查記錄；及" }

{ "en": "The police sought legal advice from the Department of Justice twice, namely on 17 February 2006 and 7 July 2006.", "zh-HK": "警方兩次從律政司取得法律意見，即 2006 年 2 月 17 日及 2006 年 7 月 7 日。" }

{ "en": "In our view, much as the police needed time to collect evidence, a delay of 21 months was still an inordinate one. The offences admitted by the Appellant at the very beginning were exactly the same as those with which she was charged in the end, and no further charges were laid against her following police investigations. In our judgment, the Respondent has failed to give good reasons for the delay.", "zh-HK": "本庭認為即使警方需要時間搜集証據，但 21 個月的延誤實在是一個極為嚴重的延誤。上訴人當初所承認的控罪亦是她最終被控的控罪。警方沒有在調查案件之後向她加控其他罪行。本庭認為答辯人未能合理地解釋延誤。" }

{ "en": "Where there has been a delay in prosecution, the sentencing court must take it into account. In particular, where the defendant rehabilitated, resumed work or repaid debts during the period of delay, the court will consider reducing the term of imprisonment, passing a suspended sentence or imposing a punishment other than an immediate custodial sentence, such as a community service order.", "zh-HK": "法庭在量刑時必須考慮案件是否存在檢控延誤的情況，若有的話，特別是在延誤期間，被告人更新、重新投入工作或償還欠債，法庭是會考慮扣減其刑期或判處緩刑或其他非即時監禁的刑罰，如社會服務令。" }

{ "en": "Secretary for Justice v. Hui Siu Man [1999] 2 HKLRD 236 and HKSAR v. Chan Yuk Kwan CACC 26/2001 are two of the cases that illustrate the court’s approach to a delay in prosecution. In Hui Siu Man, which also involved an offence of a breach of trust, there was a 12-month delay in prosecution. The trial judge sentenced the defendant to 21 months’ imprisonment but suspended for 3 years, and this sentence was affirmed by the Court of Appeal. In Chan Yuk Kwan, where prosecution was delayed for 18 months, the Court of Appeal arrived at the final sentence by taking a discount of 50% from the starting point. See also HKSAR v. Chiu Peng [2001] 1 HKLRD 185.", "zh-HK": "Secretary for Justice v. Hui Siu Man (律政司司長訴許兆文 （譯音）1999 2 HKLRD 236) 及 HKSAR v. Chan Yuk Kwan (香港特區政府訴陳玉群（譯音）CACC 26/2001) 是兩宗法庭審理延誤檢控的案例。在許兆文 一案，案件涉及破壞誠信，但檢控延誤達 12 個月。原審法官判處被告人 21 個月監禁，緩刑三年。上訴法庭同意有關判決。在陳玉群 一案，檢控延誤達18 個月，上訴法庭將量刑基準扣減百分之五十作為最終刑期。另見：HKSAR v. Chiu Peng (香港特區政府訴趙朋（譯音）2001 1 HKLRD 185)。" }

{ "en": "In the present case, the sentence imposed by Deputy Judge Woodcock has not taken into account the delay in prosecution.", "zh-HK": "胡法官的量刑沒有考慮到有關的延誤。" }

{ "en": "Circumstances of the present case", "zh-HK": "本案的情況" }

{ "en": "Subsequent to her arrest, the Appellant not only paid off all outstanding debts, but was also employed by another company as a secretary between January 2005 and October 2006. Following the sentence imposed by Deputy Judge Woodcock, the Appellant has to date been imprisoned for more than 8 months. If she is good behaviour, she can expect to be released on 23 December of this year. In light of the exceptional feature of the present case, namely the long and inordinate delay in prosecution, and taking into account that the Appellant rehabilitated, resumed work and repaid the debts during the period of delay, the sentence should be varied to enable the Appellant to be released immediately.", "zh-HK": "本案上訴人在被拘捕後不但償還了有關的欠款，更於 2005 年 1 月 至 2006 年 10 月期間受聘於另一間公司，任職秘書。根據胡法官的判決，上訴人至今已被監禁超過八個月，若她行為良好，她將會在本年 12 月 23 日被釋放。基於本案的特殊情況，即上述所說的頗長及嚴重的檢控延誤及上訴人在這段期間內更生、重新投入社會工作及償還欠債，法庭是應該更改刑期，讓上訴人獲得即時釋放。" }

{ "en": "Conclusion", "zh-HK": "總結" }

{ "en": "We allow the appeal and order that the Appellant be released forthwith.", "zh-HK": "本庭批准上訴，判上訴人即時釋放。" }

{ "en": "Mr. Ned Lai, Acting Senior Government Counsel, for the Respondent", "zh-HK": "答辯人：由律政司署理高級政府律師黎嘉誼代表。" }

{ "en": "The Appellant in person", "zh-HK": "申請人：無律師代表，親自出席。" }

{ "en": "Hon Yeung VP and Yuen JA (giving the reasons for judgment of the Court):", "zh-HK": "高等法院上訴法庭副庭長楊振權及上訴法庭法官袁家寧頒發上訴法庭判案理由書：" }

{ "en": "Introduction", "zh-HK": "引言" }

{ "en": "Around 10:52 p.m. on 15 February 2012, Wu Yuen Fai, the victim in the present case, was injured in an attack outside “Man Lee Snack Shop” (transliteration) on the ground floor of Tai Po Plaza. Chung Chi Fai, the applicant herein, was said to have been involved in the incident and was arrested by the police on 23 February 2012 for the offence of “wounding with intent”. Under caution, the applicant said, “Ah Sir, I did not do it. I was at a betting centre on that day placing bets on horses until the 6th or 7th race, and then I returned home.”", "zh-HK": "2012年2月15日晚上約10時52分，胡遠輝（受害人）在大埔廣場地下“萬利小食”外遭人襲擊受傷。申請人（鍾志輝）被指和事件有關，並在2012年2月23日遭警方以“有意圖而傷人”罪拘埔。警誡下，申請人說：“阿Sir，我無做過，果日我係投注站賭馬，賭到6至7場就番屋企。”" }

{ "en": "At 11 p.m. on 23 February 2012 the applicant voluntarily attended a video-recorded interview with Detective Sergeant 50569 and Police Constable 47952 in respect of the incident. At the interview the applicant reiterated that he was not at the scene when the incident occurred. He said that on that day he was at the Tai Po Plaza betting centre placing bets until the 6th or 7th race and returned home at 10 p.m. to go to bed. He said that he did not know the victim and that he did not carry any sharp object on his person on the day of the incident.", "zh-HK": "同日晚上11時，申請人因上述事件自願和偵緝警長50569號和警員47952號進行錄影會面。申請人重申案發時，他不在案發現場。他指當天自己在大埔廣場馬會投注站下注至第六、七場後，在晚上10時返家睡覺。申請人表示不認識受害人，而案發當天亦沒有帶任何利器在身上。" }

{ "en": "Prosecution witness Miss Chong Po Ching (Miss Chong) witnessed the incident. At an identification parade held on 24 February 2012, she identified the applicant as the man who attacked the victim on the evening of 15 February 2012 outside Man Lee Snack Shop.", "zh-HK": "證人莊寶貞小姐（莊小姐）在現場目睹案發經過。2012年2月24日，莊小姐在認人手續認出申請人就是在2012年2月15日晚上於“萬利小食”外襲擊受害人的男子。" }

{ "en": "As a result of the incident, the applicant was charged with one count of wounding with intent, contrary to section 17 of the Offences against the Person Ordinance. He pleaded not guilty and was tried before Barnes J (the trial judge) and a jury.", "zh-HK": "事件導致申請人被控一項有意圖而傷人罪，違反《侵害人身罪條例》第17條。申請人否認控罪，並在高等法院原訟法庭法官張慧玲（原審法官）會同陪審團席前受審。" }

{ "en": "On 16 November 2012, the jury convicted the applicant on the charge. On 30 November 2012, he was sentenced to 17 years’ imprisonment. Represented by Mr David Ma and Ms Fiona Nam of Counsel, the applicant applied for leave to appeal the conviction and sentence. At the conclusion of the hearing, we granted the applicant leave to appeal the conviction but dismissed the appeal. We also allowed his application for leave to appeal the sentence and, treating the application as the appeal proper, allowed his appeal against sentence and reduced the sentence from 17 to 15 years. The reasons for judgment are set out below.", "zh-HK": "2012年11月16日，申請人遭陪審團裁定罪名成立，並在2012年11月30日被判入獄17年。申請人不服定罪及判刑，由馬維騉大律師及藍凱欣大律師代表提出申請，要求獲就定罪及/或判刑上訴。經聆訊後，本庭批准申請人就定罪提出的上訴許可申請，但駁回他就定罪的上訴；本庭另批准他就判刑提出的上訴許可申請，並視其申請為正式上訴，本庭裁定申請人就判刑的上訴得直，並將其刑期由17年減至15年。以下是本庭的判案理由。" }

{ "en": "Issue in dispute", "zh-HK": "案件爭議點" }

{ "en": "It was not under dispute that the victim was attacked on the evening in question and sustained extremely serious injuries, including a 25-cm long laceration wound to the neck. The main issue at trial was whether or not the applicant was the assailant.", "zh-HK": "受害人在案發當晚遭人襲擊，令他蒙受極為嚴重的傷勢，包括頸部一條長達25厘米的裂傷是不爭的事實。原審時的主要爭議點是申請人是否就是襲擊受害人的罪犯。" }

{ "en": "Prosecution evidence", "zh-HK": "控方證據" }