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DCCC 587/2025
[2026] HKDC 712
香港特別行政區
區域法院
刑事案件2025年第587號
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| 出席人士： |
楊翰先生，為律政司檢控官，代表香港特別行政區 |
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吳美華女士，由法律援助署委派的林志宇律師事務所延聘，代表被告人 |
| 控罪： |
販運危險藥物（Trafficking in a dangerous drug） |
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判刑理由書
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1.被告人承認一項販運危險藥物，違反香港法例第 134 章《危險藥物條例》第 4(1)(a) 及 (3) 條。
案情撮要
2.被告人承認的經修訂案情撮要如下：
(1) 2024 年 6 月 10 日晚上約 10 時，偵緝警員 23787 （控方第一證人）看見從泰國曼谷乘坐航班抵港的被告人在 13 號輸送帶上拿取一個行李箱（行李箱）之後步向海關綠色通道。署理總關員趙崇孝（控方第四證人）在被告人走過綠色通道時將他截停。
(2) 關員李俊成（控方第二證人）指示被告人帶同行李箱及身上背包以作檢查。他指着行李箱問被告人是否屬於他所有，以及知不知道行李箱的密碼。被告人回答時，聲稱是朋友叫他拿行李箱，他並不知道行李箱的密碼。
(3) 控方第二證人核對行李箱上行李標籤所印的個人資料，確認與被告人的護照資料相同，之後撬開行李箱的密碼鎖，然後打開行李箱作檢查。
(4) 經搜查行李箱，發現 20 個可再封口膠袋，載有共 9,999 克草本形態大麻（每個膠袋的重量介乎 448 克至 527 克之間），全部藏於 10 個零食包裝袋內。
(5) 控方第一證人其後以「販運危險藥物」罪名拘捕和警誡被告人。
(6) 經搜查被告人背包，發現一部流動電話、一張 2024 年 6 月 8 日從香港飛往曼谷的機票及一張 2024 年 6 月 10 日從曼谷飛往香港的機票。
(7) 被告人在其後的錄影會面中於警誡下承認：
(a) 被告人無業，獲女友（被告人不知道全名）介紹工作，要他前往泰國兩日；
(b) 2024 年 6 月 8 日，被告人從中國內地來香港，同日到達九龍塘站時，「老闆」派來一個身份不詳的人給他港幣 1,200 元；
(c) 「老闆」發給被告人從香港飛往泰國的電子機票，之後被告人前往機場；
(d) 「老闆」為被告人預訂泰國的酒店，被告人在泰國住了兩晚；
(e) 被告人在泰國離開酒店當日約下午 3 時，「老闆」派來一個身份不詳的男子接載被告人到機場；
(f) 到達機場後，該身份不詳男子從車尾箱取出一個行李箱，再與被告人同行，隨後該男子在櫃檯為該行李箱辦理托運；
(g) 到達香港後，「老闆」叫被告人拿取該行李箱；及
(h) 被告人無需支付機票及住宿費用。
(8) 案中檢獲的大麻市值港幣 2,819,718 元。
(9) 被告人承認於 2024 年 6 月 10 日在香港國際機場入境大堂非法販運危險藥物，即 9,999 克草本形態大麻。
3.被告人及大律師均於庭上確認被告人知悉行李箱是載有毒品。
被告人的背景
4.被告人現年 53 歲。他是國內居民，曾接受小學程度教育。畢業後，任職化學調色學徒。他與前妻 2009 年離婚，兩人育有一名女兒，女兒由前妻撫養。被告人另有一名女兒，現年 16 歲，由被告人照顧。被告人與女兒及父母於深圳居住。被告人是家庭經濟支柱。
5.被告人自 2015 年始於深圳一加工廠任職調色師傅，月入約 8500 元人民幣。
討論
6.「販運危險藥物」是極嚴重控罪，一經循公訴程序定罪，最高刑罰為 500 萬罰款及終身監禁。
7.於 HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290，上訴法庭指考慮販運危險藥物量刑的步驟是：
(1) 根據涉案毒品的種類和份量確認適用的量刑指引（第 57段）；
(2) 根據證供考慮被告人於案中的角色和罪責（第 59段）；
(3) 根據上述因素考慮適當的初步量刑基準（第 69段）；
(4) 考慮案中有否加刑因素（第 70段）；
(5) 考慮案中有否減刑因素（第 73段）；及
(6) 考慮最終的刑期是否「公平、公正和平衡」（第 79段）
8.本案所涉毒品為草本大麻。根據上訴法庭於HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329所訂定的量刑指引，適用的量刑基準如下：
(1) 超過 9,000 克：48 至 66 個月監禁；
(2) 超過 15,000 克：66 至 96 個月監禁。
9.雙方同意，以純數學計算，單以份量作考慮，本案適當的初步量刑基準為 50.997個月監禁。
10.大律師指被告人於本案中擔當高風險及低層次的「跑腿」或「毒騾」的角色。他對毒品的來源並不知情、不認識接頭人士，甚至連行李箱的密碼也不知道，只是按指示行事。
11.量刑指引適用於「跑腿」及「毒騾」。大律師指因此法庭無需就被告人的角色或罪責加重刑罰。
12.本案不敢苟同。沒有爭議的是本案涉及跨國販毒，而該因素是衡量被告人的角色和罪責的一部份。於HKSAR v Raman Kapusamy [2024] 2 HKLRD 955，上訴法庭裁定：
“(1) The international element was to be considered as part of the assessment of the offender’s role and culpability. Following HKSAR v Herry Jane Yusuph and HKSAR v Lee Ming Ho, the Court of Appeal had moved away from the prescriptive approach in HKSAR v Abdallah where certain identified aggravating factors, including the international element, were regarded as separate elements going to enhance the starting point by defined increments, to a more flexible approach. While many cases would continue to be distinguishable only by the quantities of narcotic being trafficked, there were others where the sentencing judge may adopt a more tailored approach to sentence by assessing the offender’s role and culpability. It was no longer productive to consider standard or uniform enhancements for the international element, depending on the quantity. Nevertheless, sentencing judges should consider that the greater the quantity, the more harm was caused by that quantity entering Hong Kong and being disseminated. Quantity must, therefore, still play a role in any enhancement for the international factor (HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186 applied…
(2) The international element may take a number of different forms, including the carrying of drugs across borders by couriers, importing drugs, receiving a parcel from abroad, and ordering drugs from abroad. These were not exhaustive categories, and even within them, there may be variations and different gradations of seriousness in assessing different roles and culpability. The international element therefore may not lend itself to standard or uniform enhancement.
(3) The international element in the context of trafficking in dangerous drugs referred to the arranging, causing or facilitating dangerous drugs to be brought over the border illegally into or out of Hong Kong. It may be reflected differently in the role and culpability of individual defendants. Not all couriers were as culpable as each other, even if they were trafficking in the same quantity of drugs. The sentencing judge should assess the role and culpability of the offender on the basis of the fact admitted or presented in evidence and in accordance with any guidance in other decisions of the Court of Appeal. The international element was merely a factor of circumstance in the commission of the offence, albeit one which normally made the offender’s role and culpability more serious and enhanced the starting point for sentence …
(4) The international element applied to the sentencing of “drug mules” in Hong Kong. “Drug mules” was still fuelling the supply of drugs in Hong Kong and causing harm to individuals and society, regardless of the circumstances of their backgrounds and involvement. Moreover, “drug mules” who had already been found guilty or pleaded guilty to knowingly trafficking in dangerous drugs across borders must have fully understood their act and the consequences. If there was any doubt that they may not know what they were carrying, or if they may have been the subject of duress, they would not have been convicted. Further, notwithstanding the practice of other jurisdictions, it was a matter for Hong Kong courts to determine their own policy for combating drug trafficking …”
13.被告人跨境犯案（即從泰國進口毒品）明顯令他的角色及罪責更嚴重。
14.另外，他還是內地居民，特地來港犯案。這亦是加刑因素。Sentencing in Hong Kong 11th Edition指：
“[1-98] If an offender comes to Hong Kong from the Mainland on a two-way permit specifically to commit serious crime, this will constitute an aggravating factor: HKSAR v Chau Chun-yee [2001] 3 HKC 605, 608.”
15.大律師援引HKSAR v Raman Kapusamy [2024] 2 HKLRD 955。上訴法庭指跨國販毒涉及林林總總的情節，加刑幅度不能一概而論，不宜定立劃一的加刑幅度。
16.於該案中，被告人經審訊後被裁定一項「販運危險藥物」罪成。被告人是馬來西亞人。2018 年 6 月 3 日，他前往越南拿取毒品後乘坐飛機到達香港國際機場。被告人被截停後，在他的行李箱內發現共 2,970 克晶體，內含 2,956 克甲基苯丙胺鹽酸鹽（冰毒）。原審法官以 24 年監禁作為初步量刑基準，但因跨國原素將量刑基準上調 2 年。最終判處被告人 26 年監禁。被告人不服定罪及判刑，提出上訴。上訴人力陳：
“21. By Ground 1, Mr Boyton argued that Hong Kong, which has long based its sentencing regime on the quantity of narcotic involved in a given case, should have regard to changing international attitudes towards drug couriers, which, he said, placed greater emphasis on an offender’s vulnerability, role and culpability. He pointed to the following factors, which suggested that the applicant was a vulnerable person and a “subordinate courier”, who would be considered to be less culpable in other jurisdictions:
(a) Had Chandru not taken advantage of the applicant’s financial situation and effectively enticed him by paying for all his needs and expenses (flights, hotel accommodation and passport), the applicant would have been unlikely to commit the offence in the first place.
(b) There was no evidence that the applicant knew of the actual nature of the drug he was carrying, or its quantity or value.
(c) The reward of 500 Ringgits was insignificant when compared with the retail value of the consignment (representing only 0.6% of its value).
(d) The applicant’s only motivation was financial gain.
(e) Everything had been arranged for the applicant and he was merely required to follow his instructions; at no stage could he make any decisions himself.
(f) The applicant was even more vulnerable than other couriers, because he owed Chandru a debt, which would be discharged if he trafficked in dangerous drugs.”
17.上訴法庭指：
“56. One of the more significant developments to emerge from Lee Ming Ho is that the Court has cemented its move away from the prescriptive approach in Abdallah (and, correspondingly, in HKSAR v Cheung Ping Kun), where certain identified aggravating factors were regarded as separate elements going to enhance the starting point by defined increments, to a more flexible approach where three of the factors cited in Abdallah are now ordinarily to be considered in the assessment of the role and culpability of the offender.
57. A central premise of the Court’s decision in Herry Jane Yusuph was that, while many cases will continue to be distinguishable only by the quantities of narcotic being trafficked by the couriers concerned, there are other cases where the role and culpability of the offender (including a courier) may be greater or less, thus warranting a more tailored approach to sentence. It was considered that these assessments are more the province of sentencing judges seized of the facts of a particular case than they are the function of this Court in imposing prescribed enhancements depending on quantity alone.
58. Once one accepts that there will be cases where the facts differ, leading to different sentences for defendants whose roles and culpability are greater or less than others, then it is no longer productive to consider standard or uniform enhancements for particular aggravating factors depending on whether the quantity is over 1 kilogramme (as in Abdallah), or less than 1 kilogramme (as in Chung Ping Kun). For the facts giving rise to the aggravating factor may be different, which in turn may colour how aggravating the factor is, and how the sentence should, or should not, be enhanced by it. Nevertheless, sentencing judges should remember, in relation to the international element, that the greater the quantity, the more harm is caused by that quantity entering Hong Kong and being disseminated on our streets.
59. As we said in Lee Ming Ho, the international element is to be considered as part of the assessment of the offender’s role and culpability:
“In exercising their discretion, courts will still bear in mind the quantity of narcotic being introduced into Hong Kong, which not only increases the supply of the particular dangerous drug but causes greater harm to the community. As Zervos JA put the matter in HKSAR v Fong Yau Heung:
‘The courts in Hong Kong have long recognised that the importation of dangerous drugs is a serious aggravation of the offence of drug trafficking because it involves the international smuggling of the quantity of drugs imported finding its way into the local drug market and putting the people and the community at risk of substantial harm.’
Later, he repeated:
‘It is clear from our review of the authorities, that the importing or exporting of drugs is regarded more seriously than the usual dealing of drugs locally. Importing drugs into Hong Kong fuels the local drug market and has serious and deleterious consequences to the people and the community of Hong Kong. Exporting drugs from Hong Kong has the same effect on the receiving jurisdiction which is regarded with the same level of seriousness as if imported in accordance with international comity.’
Quantity must, therefore, still play a role in any enhancement for the international factor.
60. There can be no denying that the ‘international element’ is an aggravating factor in sentencing in dangerous drugs cases in other jurisdictions and has been part of the sentencing practice in this jurisdiction since before Abdallah was decided 15 years ago. However, as we were at pains to make clear in Lee Ming Ho, the international element is itself capable of taking a number of different forms and may not, therefore, lend itself to a standard or uniform enhancement. The most common example to come before the courts is the courier who, for a fee or reward, crosses the border with dangerous drugs secreted in or on their person or in their luggage. However, there is also the importer who engineers the arrival of an elaborate commercial cargo by land, sea or air deliberately disguised in or as some innocuous shipment. Then there is the recipient of a parcel, which has arrived at the Post Office or a parcel delivery company, and which the recipient knows is both from abroad and contains dangerous drugs. And there is the offender who orders a dangerous drug from abroad, perhaps online through the Internet. These are some of most common permutations of the cross-border trafficking of dangerous drugs encountered in this jurisdiction. But they are not exhaustive categories and even within them, there may be variations and different gradations of seriousness in assessing different roles and culpability.
61. Whatever form the international element takes in the context of trafficking in dangerous drugs, all offenders have one thing in common: they have each either arranged, or caused or facilitated dangerous drugs to be brought over the border illegally into (or out of) Hong Kong. That is essentially what the international element in the present context means. In other crimes, often involving offences of dishonesty, the international element may also be manifested by the offender coming to Hong Kong specifically with the intention of committing a particular offence, often bringing with him the tools necessary to commit that offence.
62. In the context of drug trafficking, however, the international element may be reflected differently in the roles and culpability of individual defendants. There may be a distinction in culpability, for example, between the person who travels across the world with a consignment of dangerous drugs concealed inside his person or luggage, and the offender who knowingly helps his friend to collect a parcel of dangerous drugs posted from abroad at the Post Office or parcel delivery company. Greater culpability may sometimes attach to the person who accompanies or oversees the courier transporting or collecting dangerous drugs.
63. In HKSAR v Ali Qasim, we said:
“27. It seems to us that there is a tangible distinction, for example, between a defendant who, pursuant to the elaborate arrangements of an international syndicate, crosses continents from a foreign country and arrives at Hong Kong International Airport with dangerous drugs secreted within his baggage or person, and a defendant who goes to the Post Office on someone else’s instruction to collect a parcel posted from abroad which he knows contains dangerous drugs. The first defendant can be said to be actually importing dangerous drugs into Hong Kong, while the second defendant is generally aiding and abetting someone else’s act of importation; although, of course, the evidence may sometimes establish that he himself is the importer. Both are plainly guilty of trafficking in dangerous drugs but their culpability may differ.
…
29. Although the present case can properly be said to involve an ‘international element’, the evidence and the jury’s verdict established no more than that he had gone to the Post Office in question for a reward to collect a parcel from abroad, which he knew contained dangerous drugs. The screenshot on his mobile telephone, which he produced to the Post Office staff, contained the tracking details of the parcel in its journey from São Paulo in Brazil to Hong Kong. Such evidence, together with the fact that he was collecting a parcel which he must have known had arrived at the Post Office from abroad, was sufficient to establish the ‘international element’ by way of aiding and abetting the importation of cocaine into Hong Kong. This Court has, on facts very similar to the present case, more aptly characterised such conduct as ‘facilitating the importation into Hong Kong’ of dangerous drugs: see HKSAR v Fitri. However, the ‘international element’ involved, in that case and in this, was in a rather different league from the international courier who himself trafficks dangerous drugs across the border into Hong Kong, whether the drugs are secreted in his person or otherwise in his possession.
30. In distinguishing between these two types of trafficking, we are not to be taken as suggesting that the conduct of a defendant who collects a parcel containing dangerous drugs from a Post Office is necessarily any less serious or culpable than a defendant who carries drugs across the border into Hong Kong. We can envisage circumstances where someone who collects a consignment of dangerous drugs concealed in seemingly innocuous merchandise, which he has organised and made elaborate efforts to disguise and import through legitimate cargo channels, may be just as, if not more, culpable than the person who crosses the border with dangerous drugs secreted in his possession. Much will depend on the facts of the case and the extent of the involvement of the defendant. However, we would caution sentencers that simply because the label of ‘international element’ can be applied to a defendant’s trafficking of a kilogramme of heroin or cocaine narcotic because it has come across the border, and he is connected with the offence, does not automatically mean that he must receive an enhancement of sentence of 2 years’ imprisonment.””
18.最終，上訴法庭考慮過案情後，認為判刑並無不妥，被告人就刑期的上訴被駁回。
19.大律師指本案中，被告人只是「毒騾」。這正正是Raman Kapusamy的其中一個論點。上訴法庭指：
“65. Even within the category of the courier who travels across the world, we have made the point in Lee Ming Ho that:
“… there may be a distinction between the foreigner arriving in Hong Kong for the first time from an impoverished country with a consignment of dangerous drugs, who may not, through naivety or lack of education, fully appreciate the enormity of what he is doing and the appalling consequences of the punishment that will be meted out when he is caught; and the courier from Hong Kong, who journeys across the world to collect a consignment of drugs in order to bring it back to Hong Kong, knowing full well the gravity of his crime and what awaits him when he returns…”
67. These decisions illustrate what we have said in Herry Jane Yusuph, that “not all couriers and storekeepers may be as culpable as each other, even though they are trafficking in the same quantity of dangerous drugs”. It was for this reason that the Court in Lee Ming Ho explained it has “moved away from a ‘one size fits all’ approach on the basis that every courier is the same to a more nuanced examination by the sentencing judge of role and culpability”.
68. These are matters for the sentencing court to assess on the basis of the facts admitted or presented in evidence and in accordance with any guidance this Court may have given in other appeals. However, it should always be remembered that the offence is trafficking in dangerous drugs: the international element is merely a factor or circumstance in the commission of that offence, albeit one which normally makes the offender’s role and culpability more serious and enhances the starting point for sentence.
69. We do not accede to Mr Boyton’s general invitation to regard certain “drug mules”, as he has defined them, as falling outside the parameters of sentencing policy in this jurisdiction. Firstly, anyone who brings dangerous drugs across the border is still fuelling the supply of drugs on the streets of Hong Kong with all the terrible consequences they bring for individuals and society, whatever the unfortunate circumstances of their backgrounds and involvement. It is of little comfort to the families and communities whose lives are blighted by dangerous drugs to know that the defendant who brought the drugs into Hong Kong had financial problems, which drove him to commit such a serious crime against the citizens of another country.
70. Secondly, a “drug mule” is still a drug trafficker who falls to be sentenced, having already been found guilty, or pleaded guilty, to knowingly trafficking in dangerous drugs. When such a trafficker travels across continents and borders, often following an elaborate itinerary, knowing he has dangerous drugs secreted in his luggage or in, or on, his person, we cannot accept that he does not fully understand what he is doing or what the consequences will be if he is caught; particularly in this part of the world. Drugs are a world-wide scourge and it defies belief that there are people in the world who do not realise the appalling risks they are taking when they knowingly ingest dangerous drugs, or secrete them on or in their person or in their luggage, to be carried across the world, or the consequences if they are caught before, during or after they have embarked on their journey. However, if there is any doubt that a particular defendant may not know what, if anything, he is carrying, or if he may have been the subject of duress, he will not be guilty and the question of sentence does not arise. That is what trials are for, and why the courts have devised and refined elaborate directions over the years for judges and juries in cases where possession and knowledge are in question, or where duress is an issue…
72. Having said that, we do recognise that very occasionally there may be a defendant who, for one reason or another, perhaps because of physical or mental disability, infirmity or frailty, or because he has been genuinely scammed or tricked, becomes involved in a crime from which he then finds it difficult to extricate himself. Such a defendant comes to realise at some late stage what is required of him but nevertheless carries on with his part in the crime knowing what he is doing, however reluctantly, but in circumstances falling short of duress.
73. Judges will approach such cases, when they arise, with realism, fairness and common sense, in the knowledge that such claims are very easy to make after a defendant has been caught but less easy to substantiate. What we would expect, as a minimum, where such circumstances are advanced is an immediate full and frank explanation by the defendant to the relevant authority upon arrest as to how he came to be involved; and the existence of other evidence suggesting that the defendant became unwittingly ensnared and reluctantly involved in the commission of the offence, from which he found it difficult to extricate himself. Such claims will normally follow a plea of guilty. If such evidence is lacking, the defendant should be expected to give evidence and be cross-examined on his contention and the circumstances which caused him to commit the offence at a Newton hearing.
74. Neither the applicant nor the respondent come anywhere near this rare category of circumstance. Both pleaded not guilty, but were found guilty after trial by their respective juries. The claim of the applicant in CACC 32/2020 that he was tricked by Chandru into believing that he was carrying gold rather than almost 3 kilogrammes of “Ice” and, therefore, had no idea that he was carrying dangerous drugs until he was stopped by Customs officers was unanimously rejected by the jury. If his defence had been regarded by the jury as possibly true, he would have been acquitted and the question of sentence would not have arisen. It is clear to us from the evidence that the applicant knew exactly what he was doing from the outset and was a willing participant throughout, even assuming the genuineness of his claim to be discharging a debt to a childhood friend.”
20.被定罪前，被告人確認知悉行李箱載着毒品。雖然他的學歷不高，但於國內「販運危險藥物」亦是極嚴重的控罪。他是明知控罪性質及後果下犯案。
21.就加刑副度，大律師亦提及HKSAR v Wu Huibao [2025] HKDC 1614。該案的被告亦是國內人士。他從泰國入境香港時，攜帶 10062.90 克草本大麻。法庭認為將量刑基準上調 4 個月恰當。
22.於律政司司長對唐健帮及另二人 CAAR 13/2022 [2023] HKCA 896，上訴法庭指：
“35. 第一，雙方於本案存檔了多份區域法院的判刑理由書，希望藉此支持己方立場。本庭在律政司司長訴溫達揚一案第27段已指出：
「… 因為這些判刑，從來就沒有經過上訴而被肯定，也沒有什麼量刑原則可言，對量刑既沒有約束力也沒有參考價值，根本起不了任何指導作用，根本不應稱之為『案例』…」
況且，「有意圖而傷人」及「暴動/非法集結」罪的案情，以及某被告人的背景、犯案動機、於該案所扮演的角色等事項，可謂千變萬化，任何單純對案件判刑作出比較的做法，都不能協助本庭處理原審判刑是否恰當這個議題。歸根究底，控罪要旨（gravamen of the offence）及適用的量刑因素才是重點所在，而非個別案件的判刑。＂
23.於 香港特別行政區對劉晉旭及其他人CAAR 243/2021 [2023] HKCA 1098，上訴法庭又再次重申：
「51. 在完結前特別一提。申請方曾在他們的書面陳詞援引區域法院另一宗二號橋暴動案的原審判刑（香港特別行政區訴陳起行 [2021] HKDC 874），作為適用蔡家輝 案的支點以支持本案量刑基準過高的主張，結果終被勸退。本庭已在過往指出過多次，在今年的律政司司長對唐健帮及另二人 [2023] HKCA 896（判案理由書日期：2023年8月25日）又再重申：未經上訴的原審判刑對同級法院沒有約束力，對上訴法庭也沒有任何參考價值，不應被業界用作上訴時的依據。」
24.因此，本席不打算處理上述區域法院的判刑。
25.考慮到本案的案情、毒品性質及被告人的角色及罪責，本席將量刑基準上調 4 個月，即量刑基準為 54 個月監禁。
減刑
26.被告人適時認罪，可獲三分一的扣減。刑期減為 36 個月監禁。
27.大律師指被告人因經濟困難而犯案；犯案利益只有 1,200 元。被捕後，他初嘗鐵窗滋味，深深明白自由的可貴。被告人於求情信中指：
「… 還押在收押所的一年多時間，感受到失去自由同親人的痛苦，也同時深刻反省自己所犯的錯誤，感到十分後悔。…
我知道錯了，希望法官大人看在我第一次犯錯的份上，給我一次改過的機會，保證以後不會再犯錯，對我這次從輕發落，讓我早點回去照顧父母跟小孩。…」
28.首先，經濟困難並非減刑因素。Sentencing in Hong Kong 11th Edition指出：
“[30-143] Many people face financial difficulties, but do not resort to crime. Financial pressure is not an excuse for offending: R v Kwok Yau-fat (CACC 537/1996, 28 February 1997, unreported). Whilst it may explain why the crime occurred, it cannot provide mitigation: Attorney General v Yan Chun-fong [1993] 1 HKCLR 42,45 … Judges are required to recognize the rationale for the strict sentencing policy for drug trafficking, namely, the evil that is constituted by the trade; they must also be alert to the readiness of those who are in charge of the trade ‘to exploit and abuse any perceived door to leniency’: HKSAR v Somphaksorn Lanyai [2009] 1 HKC 437, 440. As Stock VP explained at [17]:
The courts had, time and again, steeled themselves in drug trafficking cases against mitigation based on financial need, not only because it exposed those in financial need to particular pressure by drug dealers, but also because most people in financial need resisted that temptation and must, by stern sentencing policy, be discouraged from succumbing to it.
[30-144] In HKSAR v Lee Mun-wai [2006] HKCU 106 (CACC 386/2005, 13 January 2006, unreported), a convicted narcotics trafficker sought to place reliance upon the financial pressure he faced from having seven outstanding mortgage payments on his home in Shenzhen. Having exhausted all avenues of raising money, he allowed himself to be persuaded to distribute drugs in return for a reward. Stuart-Moore VP said the mitigation advanced could have no bearing on sentence. His Lordship explained:
It is well-established that financial pressure cannot excuse or reduce a person’s culpability where criminal offences are concerned. This factor may explain why a person has resorted to crime, as here, but it cannot be something which serves to reduce a sentence which is in all respects appropriate to the circumstances. There are many who find themselves facing financial problems and nothing which is said by this court, should be viewed as lending support to a suggestion that this can provide any sort of an excuse for resorting to crime.
[30-145] That the accused committed the offence because he owed money to loan sharks due to gambling losses will not avail him… Neither will the fact that the motive for the offence was to raise money for his family: Attorney General v Shek Sui-tai [1989] 1 HKLR 178, 179 … Financial difficulty and personal circumstances are not relevant as mitigation in serious cases, no matter how desperate or tragic the situation of the accused: Secretary for Justice v Nones Carmelita Galay [2023] 1 HKC 139 …”
29.再者，判刑對家人的影響亦非減刑因素。Sentencing in Hong Kong 11th Edition指出：
“[30-130] … ‘family hardship, which is usually attendant upon the conviction is to be viewed as a part of the price and accused must pay for the crime’: HKSAR v Li Kwok-ching [2005] HKCU 1702 (HCMA 1132/2005, 30 November 2005, unreported). Those who commit offences should keep in mind ‘the principle that the adverse effect of imprisonment upon an offender’s family is not a factor normally to be taken into account’: HKSAR v Chan Kin-chung [2002] 4 HKC 314, 321. Family circumstances, in any event, ‘are matters which a wise man would take into consideration before he commits an offence and not after’: HKSAR v To Yiu-cho [2009] 5 HKLRD 309, 311 …
[30-131] An accused must appreciate that his family will suffer ‘if he is caught and convicted’: R v Shipra [1988] HKC 412 … In HKSAR v Shum Chung-wai [2002] 2 HKLRD 81, 87, Luger-Mawson J said: ‘This court has said many times that family circumstances should be disregarded, particularly when sentences for serious offences are concerned’.”
30.被告人在香港沒有刑事定罪紀錄。就跨境販運毒品案件，這亦並非減刑因素。Sentencing in Hong Kong 11th Edition指出：
“[7-6] Credit for a clear record is, however, by no means a given. Much will depend upon the nature of the offence and the position of the offender. In HKSAR v Law Num-chun [2014] 6 HKC 606, 617, Lunn VP said:
[T]he principal is that good character is not a factor relevant generally to determining the starting point to be taken for sentence in serious criminal offences for which a deterrent sentence is required …
[7-11] If the accused as convicted of drug trafficking, age, and good character are generally irrelevant: HKSAR v Law Num-chun [2014] 6 HKC 606. In HKSAR v Bugaay [2008] 6 HKC 326, 331, Stuart-Moore VP said:
The couriers who are selected by international drug syndicates to carry drugs of the value in the present case, almost invariably have no criminal record. Part of their usefulness to the syndicate is that they are able to pass as normal, law-abiding passengers whatever their age group. In any event, as this court has so often said with reference to cases where serious criminal acts are concerned, a clear record (or good character) in itself is not a factor for which a discount is generally appropriate, and age will usually be relevant only where extreme youth is concerned.”
31.另外，上訴法庭已於 HKSAR v Ngo Van Nam [2016] 5 HKC 231 中指出，認罪折扣已是最高分水線（High watermark），涵蓋悔意及所有其他求情因素；除非有極特殊的求情因素，否則不應予以額外的折扣。
32.簡而言之，本案中除了適時認罪之外，並無其他減刑因素。本席判處被告人 36個月監禁。
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