保釋期間犯案對量刑起點的影響？維持原判

### 案件基本資料 - 案件名稱：HKSAR v Yuen Gang Shing - 法院：高等法院上訴法庭 (Court of Appeal, CA) - 法官：廖柏嘉副庭長、梅師賢副庭長、施道睿法官 - 判決日期：1997年11月12日 ### 案情摘要 申請人與其同案被告林某被控販運危險藥物。控罪指他們於1996年10月23日在廟街新肥媽飯店販運83.28克混合物，內含36.96克海洛英。申請人承認控罪，而林某不認罪，經審訊後被裁定罪名成立。原審法官為林某判刑時選取了6年監禁作為量刑起點，而申請人則被判處4年8個月監禁，其中3年6個月與他當時正在服的刑期分期執行。 ### 核心法律爭議 申請人就其判刑提出上訴許可申請，主要爭議點在於原審法官對他採用的量刑起點與其同案被告不同。申請人認為，經認罪折扣後，其4年8個月的刑期顯然過重且不合理，因為這意味著法官對他採用的量刑起點是7年而非6年。 ### 判決理由 上訴法庭認為，申請人在保釋期間犯案是一個加重情節 (aggravating feature)。原審法官已清楚解釋，若非此加重情節，對申請人也會採用6年的量刑起點。原審法官在判刑理由中並無可受批評之處。在保釋期間犯下任何罪行無疑是應予考慮的加重情節。原審法官給予申請人三分之一的認罪折扣 (discount for guilty plea)，且就所涉毒品數量而言，量刑起點並無錯誤。申請人與其同案被告不同，因後者並非在保釋期間犯案。因此，上訴法庭認為對申請人施加的刑罰絕非明顯過重，原審法官在原則上或處理7年量刑起點方面均無錯誤。 ### 引用案例與條文 本案未有特別引用 ### 裁決與命令 上訴法庭駁回申請人的上訴許可申請，維持原審法官對申請人判處的4年8個月監禁。 ### 判決啟示 null --- ### 免責聲明 本摘要由人工智能自動生成，內容可能存在錯誤或遺漏，僅供參考，不構成法律意見。如需法律建議，請諮詢合資格律師。### Case Details - Case Name: HKSAR v Yuen Gang Shing - Court: Court of Appeal (CA) - Judge: Hon Liu JA, Mayo JA, Stuart-Moore J - Date of Judgment: 12 November 1997 ### Factual Background The applicant and his co-defendant, Lam, faced one charge of trafficking in a dangerous drug. The allegation was that on 23 October 1996, at Sun Fei Ma Restaurant in Temple Street, they unlawfully trafficked in 83.28 grammes of a mixture containing 36.96 grammes of heroin hydrochloride. The applicant pleaded guilty, while Lam pleaded not guilty and was found guilty after trial. The Deputy Judge selected a starting point of 6 years for Lam's sentencing. For the applicant, the judge sentenced him to 4 years and 8 months, with 3 years and 6 months of that sentence to run consecutively with a sentence he was already serving. ### Key Legal Issues The applicant sought leave to appeal against his sentence, primarily concerned about the apparent difference in the starting point adopted by the Deputy Judge for his sentencing compared to that of his co-defendant who had pleaded not guilty. The applicant contended that his sentence, after discount, was plainly insupportable and excessive, arguing that a 4-year 8-month sentence implied a starting point of 7 years, not 6. ### Ratio Decidendi The Court of Appeal found that the applicant's offence was committed while he was on bail, which the Deputy Judge correctly regarded as an aggravating feature. The Deputy Judge had clearly explained that but for this aggravating feature, the same starting point of 6 years would have been adopted for the applicant. The Court found no criticism in the Deputy Judge's reasoning. Committing an offence while on bail is an unquestionable aggravating factor. The Deputy Judge gave the applicant a proper one-third discount for his guilty plea, and the starting point for the quantity of drugs involved was not erroneous. The applicant was distinct from his co-defendant, who did not commit the offence while on bail. Therefore, the sentence imposed was not manifestly excessive, and the judge was neither wrong in principle nor in his approach to a 7-year starting point. ### Key Precedents & Statutes None prominently cited ### Decision & Orders The Court of Appeal dismissed the applicant's application for leave to appeal, upholding the original sentence of 4 years and 8 months. --- ### Disclaimer This summary is AI-generated and may contain errors or omissions. It is for reference only and does not constitute legal advice. Please consult a qualified lawyer for professional legal advice.