Hon Cheung JA (giving the Reasons for Judgment of the court):
上訴法庭法官張澤祐頒發上訴法庭判案理由書：

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).  The drug involved was 1.46 kg of ketamine (commonly known as “K Chai”).  The applicant pleaded not guilty.  He was convicted after trial before Hon P Li J sitting with a jury and was sentenced to imprisonment for a term of 14 years and 6 months.
申請人被控一項「販運危險藥物」罪，違反《危險藥物條例》(香港法例第134章)第4(1)(a)及(3)條。有關毒品是1.46公斤氯胺酮（俗稱「K仔」）。申請人否認控罪，案件經高等法院原訟法庭李瀚良法官及陪審團審理後，申請人被裁定罪名成立及被判監14年6個月。

The applicant applied for leave to appeal against conviction.  At the conclusion of the hearing, this court dismissed the application, and we now give our reasons.
申請人就定罪提出上訴許可申請。本庭在聆訊後駁回申請，以下是本庭的判案理由。

Prosecution case
控方案情

The prosecution case reveals that in the afternoon on 23 March 2012, a team of police officers carried out surveillance at the staircase on a floor in Choi Tak Estate, Ngau Tau Kok.  The police saw the applicant come out from one of the units on that floor with the first prosecution witness of the present case (“PW1”) and a person surnamed Tse.  The police went up to intercept them.  At that time, PW1 was holding two wooden boxes, inside which were a bag of cane sugar, resealable plastic bags of various sizes, two electronic scales, two spoons and some desiccant beads.  Subsequently, traces of “K Chai” were found upon examination on those two spoons and one of the electronic scales.  At that time Tse was holding a plastic box and a reusable bag.  There were eight packets of “K Chai” inside the plastic box and twenty-three packets of “K Chai” and a bag containing powder of para-aminobenzenesulfonamide inside the reusable bag.  The applicant was holding three garbage bags, one of which was containing a damaged resealable plastic bag with traces of “K Chai” inside.
控方案情顯示，2012 年3月23日下午，一隊警員在牛頭角彩德邨其中一樓層的梯間監視。警員見到申請人和本案的第一控方證人及一名姓謝的人從該樓層其中一單位出來，警員上前截停他們。當時第一控方證人拿着兩個木盒，木盒內有一袋蔗糖、大小不一的可再封口膠袋、兩個電子磅、兩隻匙羮和一些防潮珠。其後該兩隻匙羮和其中一個電子磅均檢驗到有微量的「K仔」痕跡。當時謝拿着一個膠箱和一個環保袋，膠箱內有八包「K仔」毒品，環保袋內有二十三包「K仔」毒品和一袋裝着氨基苯磺酰胺的粉末。申請人拿着三個垃圾袋，其中一個垃圾袋內有一個已破爛的可再封口膠袋，內有微量「K仔」毒品。

The unit was the residence where PW1 lived with his family.  The police went into the unit for a search but did not find any person.  Subsequently, the police seized a thermosealer in the living room of the unit.  The police took samples from the three intercepted persons by wiping their hands, and upon examination, both hands of these three persons found to have traces of “K Chai”, whereas no trace of “K Chai” was found on the applicant’s fingernails.  At that time, each of these three persons was carrying two mobile phones, and PW1 had $7,021.50 with him, Tse $1,171, and the applicant $823.
該單位是第一控方證人和其家人一起居住的居所。警員進入單位內搜查，發現沒有人。其後警員在單位客廳內檢獲一部熱能封口機。警方從三名被截停人士的手抹取樣本，經化驗後發現三名人士的雙手均有微量的「K仔」痕跡，但申請人的指甲則沒有發現「K仔」的痕跡。當時三名人士每人身上都有兩部手提電話，第一控方證人身上有 $7,021.50，謝身上有$1,171，而申請人身上有$823。

The retail price of the “K Chai” seized at the scene was $211,120.  The applicant had no previous criminal record.
現場檢獲的「K仔」毒品零售價為$211,120。申請人沒有刑事紀錄。

The applicant, PW1 and Tse were charged with “trafficking in a dangerous drug”.  PW1 pleaded guilty and became a prosecution witness to testify against the applicant.  He said that he had got acquainted with the applicant and Tse one to two months before the present case.  They seldom communicated with each other and usually met by chance when strolling in Kwun Tong.  He said that before this incident, he had never participated in any drug-related activity or dealt with drugs.  He was solicited by the applicant and Tse to participate in the trafficking of the dangerous drug in the present case.  One to two weeks before the case, the three of them had once talked, and he was asked if he was in need of money.  He said that he had voluntarily let them use the unit for packaging “K Chai” with a reward of $1,000 for each 1 kg packaged.  He could not recall who had told him to buy cane sugar or electronic scales, dessicant beads, resealable plastic bags and thermosealer, but he did remember that he was repaid some money which was about $300 to $400.  Before the case happened, the applicant and Tse had been to that unit once.
申請人、第一控方證人及謝被控「販運危險藥物」罪。第一控方證人認罪及成為控方證人指證申請人。他說在案發前一至兩個月認識申請人和謝。各人很少溝通，通常是在觀塘逛街時碰到。他說他在此事件之前，沒有參與毒品的活動或接觸毒品。他是被申請人和謝招攬參與本案的毒品販運。案發前一、兩個星期，他們三人曾交談，有人問他可需要錢用。他說是他自願借出該單位讓他們包裝「K仔」，報酬是每包1公斤就可得到$1,000的報酬。他記不起誰叫他買蔗糖或買電子磅、防潮珠、可再封口膠袋和熱能封口機，不過他記得有人把金錢還給他，大約$300至$400 。案發之前，申請人和謝曾去過該單位一次。

Shortly after 6 am on the day in question, either Tse or the applicant phoned him and told him about going to his home.  Afterwards, he opened the door to let the two go in.  One of them was holding a reusable bag and put it on the table.  PW1 went back to the bed to sleep and from where he saw someone take out a manila envelope from the reusable bag, and later he was told to help in packaging drugs.  The three of them had spent about ten to twenty minutes on drug packaging and after that they went to sleep until around 3 pm when PW1’s mother called and said that she was coming home.  Hence he told the other two to pack things up and leave the unit.  The three of them were intercepted by the police outside the door of the unit.
在案發當日早上六時許，謝和申請人其中一人打電話給他說會到他的家，之後他開門讓兩人進入單位，其中一人拿着一個環保袋，並把它放在檯上。第一控方證人回到床上睡覺，但在床上他見到有人從環保袋中拿出一個公文袋，後來有人叫他幫手包裝毒品。他們三人用了大約十多分鐘包裝毒品，之後各人睡覺，直至下午三時許第一控方證人媽媽來電說她正回家，於是他叫其他兩人執拾好東西後離開單位。他們三人在單位門外被警員截停。

Defence case
辯方案情

The applicant elected to give evidence.  He got acquainted with PW1 on 23 March 2012 and had known Tse for about four years.  He had never agreed with PW1 and Tse to traffic in dangerous drugs, nor had he taken part in packaging dangerous drugs or any drug-related activity.  He knew nothing about the dangerous drug involved on the day in question.  Before the incident, in the small hours, he went to play billiards.  Afterwards, shortly after 7 am, he accompanied Tse to go to PW1’s home to play computer games.  Having played computer games for a while, he went into the room of PW1’s mother to sleep.  It was not until sometime in the afternoon that PW1 suddenly woke him up, saying his mother was coming back from the Mainland and asked Tse and him to leave quickly.  PW1 gave him some garbage bags, so he helped PW1 clear away the rubbish on the table and wiped the rubbish from the table into the garbage bag with his hands.  Afterwards, he was arrested when leaving the unit with these garbage bags in his hand.  He said he did not know at all that there was “K Chai” inside the unit, and that he had never participated in packaging “K Chai”.  He guessed that his hands got contaminated with the traces of “K Chai” when he wiped the table surface.
申請人選擇作供自辯。他在2012年3月23日認識第一控方證人。他認識謝大約四年。他從來沒有和第一控方證人及謝協議販運毒品，亦沒有參與包裝毒品或任何毒品的活動，他對事發當日的毒品毫不知情。他在案發前的凌晨去了打桌球，之後在早上大約七時許陪同謝到達第一控方證人的家玩電腦遊戲。他玩電腦遊戲一會後，便進入第一控方證人媽媽的房間內睡覺。直至下午時份，第一控方證人突然拍醒他，說他媽媽正從大陸回來，要求他和謝快點離開。第一控方證人給他一些垃圾袋，他便替第一控方證人執拾檯面的垃圾，並分別用雙手把檯面的垃圾掃進垃圾袋內。他之後就是在拿着這些垃圾袋離開單位時被警方拘捕。他說他完全不知道單位內有「K仔」毒品，亦沒有參與過包裝「K仔」，他估計他手上的微量「K仔」痕跡是他掃檯面時接觸到的。

Application for disclosure of prosecution information
披露控方資料的申請

Before dealing with the application for leave to appeal, we first heard in chambers the application made by the applicant for disclosing whether PW1 was an informer providing information on dangerous drugs to the law enforcement authority.  At the conclusion of the hearing, we dismissed this application.
本庭在處理上訴許可申請前，先以閉門形式審理申請人申請答辯人披露第一控方證人是否為執法機關線人，向他們提供毒品資料。本庭在聆訊後駁回這申請。

1)Circumstances at the trial
1)原審的情況

Before the trial, Mr Clement Lau of counsel, representing the applicant, had requested the prosecution to disclose if PW1 had provided information on dangerous drugs to the police.  At that time, the inspector in charge of the case said that PW1 was not an informer of the team which handled the present case or an informer of any law enforcement authority.  On the basis of such information, Mr Lau did not ask PW1 if he had provided any information to the police when cross-examining him at the trial.  Before this appeal hearing, the lawyers for the applicant wrote to the respondent, requesting the police to reconfirm the information which had been previously disclosed.  However, the respondent in reply only confirmed the inspector had said that PW1 was not an informer of the team, but denied the inspector had said that PW1 was not an informer of any law enforcement authority.  The applicant therefore made this application.
在原審前，代表申請人的劉仲文大律師曾要求控方披露第一控方證人是否曾經提供毒品資料給警方。當時負責案件的督察說第一控方證人不是處理本案小隊的線人，也不是任何執法機關的線人。根據這資料，劉大律師在原審時沒有盤問第一控方證人他有否提供資料給警方。在本上訴聆訊之前，申請人的代表律師致信答辯人，要求警方再次確認之前披露的資料，但答辯人的回覆只是確認督察曾經說過第一控方證人不是該小隊的線人，但否認督察曾經說過第一控方證人不是任何執法機關的線人。申請人於是提出這申請。

2)Applicant’s grounds
2)申請人的理據

Mr Lau submitted that it was a primary principle in criminal trials that the prosecution must disclose information relevant to the case to the defence.  The prosecution’s refusal to disclose material information relevant to the case would cause material impropriety to the trial and render it unfair.  PW1 was the only key witness in the present case, and the prosecution relied on PW1 to prove the applicant’s knowledge of and participation in packaging the dangerous drug in question.  Therefore, on this principle, the information related to PW1 was obviously relevant to whether the applicant was innocent.  What was more important, PW1 testified in court that he had had no experience in drug trafficking, that he had been solicited and hired by the applicant to take part in trafficking in the drug in the present case, that they had before the case already reached an agreement of arranging PW1 to purchase trafficking paraphernalia for packaging drugs, that the agreement was to be carried out on the day in question, and that the applicant instructed him how to package the drug in question.  The prosecution relied upon the testimony to directly show that the applicant must have had the knowledge of and participated in the trafficking of the dangerous drug in question.  This is the key issue in the present case.  The applicant denied having solicited PW1 and claimed that he did not know about the trafficking of the dangerous drug in question or take part in it.
劉大律師說刑事審訊中的一個大原則，是控方必須向辯方披露與案相關的資料。如果控方拒絕披露與案相關的關鍵性資料，這會導致該審訊具關鍵性的欠妥之處及使審訊不公。第一控方證人是本案唯一的關鍵證人，控方倚賴第一控方證人以證明申請人知悉並有份參與包裝涉案毒品。因此，在大原則上，第一控方證人的相關資料明顯與申請人清白與否有關。更甚的是，第一控方證人於庭上表示，他從沒有販運毒品的經驗，是由申請人招攬及聘請他參與本案的毒品販運，他們於案發前已達成協議安排第一控方證人購買販運毒品的工具以進行包裝毒品的活動，並於案發當天執行該協議，由申請人指示他如何包裝涉案的毒品，控方以此來直接指控申請人必定知悉並有份參與涉案毒品的販運，這是本案控罪的關鍵元素。申請人否認招攬第一控方證人，申請人並不知悉有關的毒品販運，亦沒有參與其中。

Basing on the above circumstances, if PW1 had previously provided dangerous drug-related information to any law enforcer or had been an informer in a dangerous drug case, it would be directly contradictory with what he said in court: “hav[ing] no experience in drug trafficking, and he was solicited, hired and instructed by the applicant to take part in trafficking in the dangerous drug”.  Obviously, if PW1 already had the experience of trafficking in dangerous drugs before the present case, it must be an important factor for the jury in the consideration of the role and “knowledge” of each person in the case.  Such being the case, the information of which the applicant applies for disclosure is clearly directly related to the applicant’s innocence.
基於上述情況，假若第一控方證人過往曾向執法人員提供毒品相關的資訊或曾為毒品案件中的線人，這會與第一控方證人在庭上說「對毒品販運從沒經驗，是申請人招攬、聘請及指示他參與毒品販運」有直接矛盾。明顯地，如第一控方證人在本案前已是對毒品的販運有經驗，這必然是陪審團考慮案中各人角色及是否「知情」的一重要因素。既然如此，申請人所申請披露的資料，明顯地與申請人的清白有着直接的關連。

Although at this stage, the prosecution and the applicant dispute over the details of the answer that has been given by the prosecution, if it is proved that PW1 has actually provided drug-related information to law enforcers, then regardless of which side is to be relied on, the prosecution has simply failed to disclose such crucial information to the applicant, and it would therefore be an undisputable fact that the applicant has been deprived of the opportunity of cross-examining PW1 at the trial.  More importantly, the jury was deprived of the information in this regard in considering whether the applicant had the knowledge, which amounts to material impropriety and renders the trial unfair, and should be one of the grounds of appeal advanced by the applicant.  Mr Lau submitted that the present case came within the exceptional circumstances which depart from the doctrine of “informer privilege”.
縱使在現階段控方及申請人一方就審訊前控方曾給予的答案詳情有所爭議，但假如第一控方證人確實曾向執法人員提供毒品相關的資訊，則無論基於哪一方的說法，控方均沒有就此關鍵性的資料向申請人一方作出披露，因此申請人一方在審訊時喪失了以此盤問第一控方證人的機會是不爭的事實。更重要的是，陪審團在考慮申請人是否知情時缺少了這方面的資料，形成具關鍵性的欠妥之處，使審訊不公平，理應為申請人的上訴理據之一。劉大律師說本案是偏離「告密者特權」的例外情況。

3)“Informer privilege” — the exceptional circumstances and disclosure procedures
3)「告密者特權」，其例外的情況及披露程序

The Court of Appeal in HKSAR v Agara Isaiah Bishop [2014] 2 HKLRD 648 confirmed the importance of “informer privilege” and the exception to such privilege.  The exception is that the disclosure of the information could demonstrate the innocence of the accused.  Yuen JA adopted the principle applied by the Canadian Supreme Court in expounding the privilege in R v Leipert [1997] 1 SCR 281:
上訴法庭在HKSAR v Agara Isaiah Bishop [2014] 2 HKLRD 648一案確認「告密者特權」的重要性及偏離該特權的例外情況。這例外情況是被披露的資料可顯示被告人是無辜的。上訴法庭法官袁家寧採用加拿大最高法院在R v Leipert [1997] 1 SCR 281闡釋該特權的原則：

“36.The Court held that ‘informer privilege is an ancient and hallowed protection which plays a vital role in law enforcement.  It is premised on the duty of all citizens to aid in enforcing the law.  The discharge of this duty carries with it the risk of retribution from those involved in crime.  The rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same’ (at 289).  It acknowledged that the rule against disclosure of information which might identify an informer ‘is of fundamental importance to the workings of a criminal justice system’ and ‘the role of informers in drug-related cases is particularly important and dangerous’ (at 289).
「36.法庭裁定:“舉報人保密權給予的保障，源來久遠，神聖不容侵犯，對於執行法紀有關鍵作用。保密權的大前提建基於全民有責協助執法。履行這責任帶來風險，會招來涉案罪行的人報復。舉報人保密權的規定由此發展而來，目的是保護協助執法的公民，並鼓勵別人效法”（第289頁）。關於不得披露可能辨識舉報人身分的資料這規定，法庭確認其“對刑事司法制度的運作有基本重要性”，而“毒品相關案件中的舉報人，身分尤其重要和危險”（第289頁）

37.  ‘Informer privilege is subject only to one exception, known as the “innocence at stake” exception’ (at 295).  To raise this exception, there ‘must be a basis on the evidence for concluding that disclosure of the informer’s identity is necessary to demonstrate the innocence of the accused’ (at 295).  One such basis is where the informer ‘is a material witness to the crime or acted as an agent provocateur ... Where such a basis is established, the privilege must yield to the principle that a person is not to be condemned when his or her innocence can be proved’ (at 296).  (Emphasis added).”
37．“舉報人保密權只受限於一個例外情況，就是‘清白攸關’ (innocence at stake)的例外情況”（第295頁）。要提出例外情況，“須在證據上有基礎達至結論，斷定披露舉報人身分是為顯示被告清白而必需的。（第295頁）。這些基礎其中一項是舉報人“是罪行的關鍵證人或以煽動者(agent provocateur)身分行事……如能確立這基礎，基於能證清白者不得被懲的原則，保密權必須屈居其後”（第296頁）」

The Court of Appeal has laid down the following principles on allowing an exception to informer privilege:
上訴法庭亦就偏離該特權而容許法庭披露告密者資料定下以下的原則：

unless the relevant information is necessary to demonstrate the innocence of the accused, no disclosure shall be allowed;
除非有關資料是必須以證明申請人的清白，否則不容披露；

the onus is on the applicant to show that the information is necessary;
責任在申請人去證明資料是必須的；

there must be evidence that provides a basis for requiring disclosure;
必須有證據基礎支持披露要求；

speculation that the information may assist the applicant must be resisted; and mere speculation does not constitute a basis for an invasion of the informer privilege;
不應猜測資料可能對申請人會有幫助；猜測不構成侵犯告密者特權的基礎；

the court should be alert to the danger of a proliferation of unmeritorious applications；
法庭必須對可能濫作申請的危險予以警惕；

the court should accord the special role of informers particular weight.
法庭必須對告密者的特別角色予以特別比重。

4)Steps for applying for disclosure
4)  申請披露的步驟

Regarding the procedures of applying for disclosure, the Court of Appeal also adopted the guidelines laid down at page 300 in R v Leipert:
上訴法庭就申請披露的程序亦採用R v Leipert 第300頁所訂立的指引 :

“First, the accused must show some basis to conclude that without the disclosure sought his or her innocence is at stake.  If such a basis is shown, the court may then review the information to determine whether, in fact, the information is necessary to prove the accused’s innocence.  If the court concludes that disclosure is necessary, the court should only reveal as much information as is essential to allow proof of innocence.  Before disclosing the information to the accused, the Crown should be given the option of staying the proceedings.  If the Crown chooses to proceed, disclosure of the information essential to establish innocence may be provided to the accused.”
「首先，被告須提出一些基礎達至結論，斷定若不獲得所尋求披露的資料，則清白攸關，無辜堪虞。若有此基礎提出，法庭然後可檢視有關資料以決定該等資料事實上是否為證明被告清白而必需的。法庭若作出結論，認為披露資料是必需的，則法庭透露的資料，應僅限於可證明被告清白的必不可少資料。法庭向被告披露資料前，控方應有選擇權，選擇是否擱置法律程序。若控方選擇繼續進行法律程序，則可向被告提供用來證實被告清白的必不可少資料。」

5)Cases in which the informer is the key witness
5)  告密者是重要證人的案例

The informer being a key witness relevant to the case would be supportive to the application for disclosure, see Leipert and R v Scott [1990] 3 SCR 979.  The Canadian case of R v Davies (1982) 1 CCC (3d) 299 and United States case of Roviaro v United States 353 US 53 (1957) 623 are two precedents showing how an informer is a key witness in the case.  In the case of Davies, the accused got acquainted with a police informer B.  B requested the accused to provide a drug supplier to the police officer who was disguised as a drug buyer, and B agreed to pay reward to the accused.  Subsequently, the accused provided information to B.  The accused arranged for the drug supplier and the disguised buyer to meet for drug purchase but was arrested by the police.  The informer B did not testify.  It was the accused’s defence that that his duty was only to introduce the drug supplier and he had not taken part in the purchase and sale of dangerous drugs.  The court held that the police were required to disclose B’s information for the accused to call him because B was the only support of the accused’s claim, namely he was only responsible for introducing the supplier and any transaction was negotiated by the supplier and the buyer themselves.  B was an important witness to support whether the accused was guilty or innocent.  In the case of Roviaro, the accused got seated on board the informer’s vehicle, instructed the informer to drive to a place, and then got off to pick up a packet of dangerous drug on the road, put it on the informer’s vehicle and then left.  The informer did not give evidence.  The court held that the informer was a key witness and the police were required to disclose his information.
若果告密者是案件有關連的重要證人，這是支持有關披露申請的，見：Leipert及R v. Scott [1990] 3 SCR 979案。加拿大 R v Davies (1982) 1 CCC (3d) 299 及美國 Roviaro v. United States 353 US 53 (1957) 623 是兩宗告密者如何是案件中重要證人的案例。在Davies 一案，被告人結識一名警方告密者B。B要求被告人提供毒品供應者給假扮毒品買家的警員，B答應支付酬金給被告人。之後被告人向B提供資料。被告人安排毒品供應者與假買家會面購買毒品，但被警方逮捕。告密者B沒有作證。被告人的答辯理由是他只是負責介紹毒品供應者，但沒有參與毒品買賣活動。法庭裁定警方需要披露B的資料讓被告人傳召他作供，原因是B是唯一可以支持被告人所說，他只是負責介紹供應者，而任何交易是由供應者和買家自行商討。B是可以支持被告人有罪或無辜的重要證人。在Roviaro一案，被告人坐上告密者的車輛，指示告密者駛車到一地方，並下車在路上拾起一包毒品，放在告密者的車裏，然後離開。告密者沒有作證。法庭認為告密者是重要證人，警方需要披露他的資料。

6)Circumstances in the present case
6)  本案的情況

In the present case, PW1 was a witness called by the prosecution and testified in court.  According to the facts of the case, it was upon receiving intelligence that the police prepared for this operation in which PW1 was the target.  PW1 had not arranged the applicant and Tse to go to his place, and the applicant did not say that either.  Such facts (namely PW1 himself being arrested and prosecuted, pleading guilty and testifying against a co-offender in court) are plainly different from the general situation in which the informer may set up to trap the accused in advance.  We do not see the relevance between whether PW1 was an informer of the law enforcement authority and the applicant’s defence, not to mention any essential relevance.
在本案，第一控方證人是控方傳召的證人，及在法庭作供。根據案情，警方是接到情報部署這次行動，而第一控方證人是行動的目標人物。第一控方證人沒有安排申請人和謝到他的家，而申請人也沒有這樣說。這些事實(即第一控方證人自己被捕、起訴、認罪及出庭指證共同犯罪者) ，與一般告密者可能預先設計陷害被告人的情況截然不同，本庭看不到第一控方證人是否為執法機關的線人與申請人的答辯理由有甚麼關連，遑論重要關連。

The applicant contended that if PW1 had previously provided intelligence on dangerous drugs, then he must have the experience in drug trafficking, and this would contradict his testimony in court, namely, that he had not taken part in any dangerous drug activity or deal with drugs before the present case.  PW1 said, “Previously, knew there were such things, but have not touched, no participation.”  He alleged that the applicant and Tse had solicited him to take part in drug trafficking in the present case.  In our view, taking it to the highest, the applicant only used this point to attack PW1’s integrity, showing the inconsistencies and contradictions in his evidence, which however has no direct relation with the key issue of the case — it is not the sort of information that proves the innocence of the accused.   As the Canadian Supreme Court said in R v McClure [2001] 1 SCR 445, if the accused only challenged the credibility or raised collateral matters, it would be difficult to meet the standards required of stage one (see para 55).  It was reiterated that in most cases, unless the privileged information went directly to one of the elements of the offence, it would not be sufficient to meet this requirement.  If the evidence provided simply advanced ancillary attacks on the prosecution case (eg by impugning the credibility of a prosecution witness, or by providing evidence suggesting that some of the prosecution evidence was obtained unconstitutionally) it would very seldom be sufficient to meet this requirement (para 58).
申請人指若果第一控方證人以往曾經提供毒品情報，他必定對販運毒品有經驗，這與他在庭上的作供有矛盾，即他作供指在案發之前，他沒有參與毒品的活動或接觸毒品。第一控方證人說「之前係知有呢D，但係冇掂，冇參與」。他指申請人和謝招攬他參與本案的毒品販運。本庭認為極其量，申請人只是利用這點去打擊第一控方證人的誠信，證明他前言不對後語，證供矛盾，但這與案件的核心議題無直接關係，這不是屬於證明被告清白的資料。正如加拿大最高法院在R v McClure [2001] 1 SCR 445一案說，如果被告只質疑證人的可信性，或者提出附帶的問題，就難以符合第一階段所要求的標準（見第55段）。法庭重申，在大部份案件中，除非受保密權保護的資料直接與罪行元素其中一項有關，否則不足以符合這項要求。如果提供的證據，純粹是順帶攻擊控方案情，例如攻擊控方證人的可信性，或提供的證據指控方某些證據是違憲取得，則甚少足以符合這項要求（第58段）。

Furthermore, we agree with Mr Tam DDPP that the applicant had at trial adduced other evidence to suggest the existence of contradictions in PW1’s evidence, and that it was not necessary for the applicant to rely on any additional information to perfect his defence.  With reference to the above precedents, it can be seen that the ground raised by the applicant was not a suitable one to support the application for disclosure.
再者，本庭同意副刑事檢控專員譚耀豪所說，在原審時，申請人已提出其他證供指出第一控方證人的證供存有矛盾之處，申請人是無須依賴任何額外資料去作出更完整的答辯。從上述案例可見，申請人所提出的並非是一個適合的理由去支持披露申請。

Since the applicant had failed to prove that whether PW1 had previously provided intelligence of dangerous drugs was sufficient to prove his innocence, his application was dismissed.
由於申請人未能證明第一控方證人有否曾經提供毒品情報的資料是足以證明他是無辜的，故此本庭駁回申請。

Application for leave to appeal
上訴許可申請

Mr Lau complained that P Li J had not been impartial and had indicated his personal views and stance repeatedly in the course of dealing with the case.  P Li J made mistakes in his summing up, which caused undue influence on the jury.  In summary, P Li J has failed to give proper directions to the jury and thus deprived the applicant of a fair trial.  This ground can be summarised as follows:
劉大律師指李法官於處理本案期間欠持平，多次顯露個人意見及立場。李法官在總結事實上犯錯，使陪審團受到不適當的影響。總括而言，李法官未能向陪審團作出正確的指示，因而剝奪了申請人公平審訊的機會。這理據歸納為如下各點：

I.P Li J has misdirected the jury in the consideration of the contradictions in PW1’s evidence
I． 李法官以錯誤的方式引導陪審團考慮第一控方證人的證供矛盾之處

At trial, the defence pointed out that there were many inconsistencies and contradictions in PW1’s testimony in court, his written statement and the video recorded interview.
在原審時辯方曾指出，第一控方證人的庭上證供、書面及錄影會面下的供詞有着很多出入及矛盾之處。

1.1)Firstly, regarding when he had got acquainted with the applicant, PW1 gave different versions, and the details are as follows:
1.1)首先，就何時認識申請人一事上，第一控方證人曾給予很多不同的版本，詳情如下：

i)In court, PW1 said that he had got acquainted with the applicant one to two months before the case;
i)在庭上，第一控方證人指他在案發前一至兩個月認識申請人；

ii)In the record of interview on 4 March 2013 which was made without prejudice to his own interests (“non-prejudicial statement”), PW1 indicated that he had got acquainted with the applicant in early March 2012 (the case happened on 23 March 2012);
ii)而在第一控方證人的2013年3月4日所錄取的無損自身利益的會面記錄（“無損自身利益的口供”）中，第一控方證人則表示是在2012年3月頭（案發日期為2012年3月23日）認識申請人；

iii)However, in the video recorded interview on 23 March 2012 (“video recorded interview”), he said that it took place almost one week or one to two weeks before the case and that he could not recall the exact time;
iii)但在他於2012年3月23日所錄取的錄影會面記錄（“錄影會面記錄”）中則指是在案發前差不多一星期或一兩個星期前，實際時間不太記得。

1.2)The defence criticised PW1’s evidence for being inconsistent, aiming at lengthening the time that he knew the applicant in court so as to make his evidence appear to be more reasonable.
1.2)辯方批評第一控方證人證供前後有出入，是有意在庭上把認識申請人的時間延長，使其證供看似更合理。

2.1)Secondly, regarding how many times that the applicant and PW1 had taken part in packaging dangerous drugs before the day in question, PW1 gave different versions, and the details are as follows:
2.1)其次，就案發當天前申請人與第一控方證人曾多少次參與包裝毒品的問題上，第一控方證人亦曾給予不同的版本，詳情如下：

i)In court, PW1 indicated that the day in question was the first time he had ever taken part in packaging drugs;
i)在庭上，第一控方證人表示他於案發當天是第一次參與包裝毒品；

ii)In his non-prejudicial statement, PW1 indicated that he had packaged drugs at his residence before the day in question but could not remember the exact date or the number of times.  He also said that he had not received any reward;
ii)第一控方證人在無損自身利益的口供中表示他曾於案發當天前在其居所包裝毒品，但記不起確實日期或次數。他亦說沒有收過酬金；

iii)In the video recorded interview, PW1 said that he had packaged dangerous drugs for the applicant for about 4 or 5 times and that the applicant had delayed in paying the reward owed to him.
iii)於錄影會面記錄中，第一控方證人則指他曾替申請人包裝毒品約4-5次，申請人一直拖欠他的報酬。

2.2)The defence criticised PW1’s evidence for being inconsistent, aiming at shirking his responsibilities.
2.2)辯方批評第一控方證人的證供前後矛盾，目的是刻意推卸責任。

3)PW1 gave different versions as to the reason for which the three of them left PW1’s residence, and the details are as follows:
3)就案發當天三人離開第一控方證人居所的原因，第一控方證人亦給予了不同的版本，詳情如下：

During examination-in-chief in court, PW1 indicated that in the afternoon on the day in question, his mother called back home and so he requested the applicant and Tse to leave;
於庭上主問時，第一控方證人表示在案發當天下午，第一控方證人的母親致電回家，因此第一控方證人要求申請人及謝離開；

Under cross-examination, PW1 agreed that his mother’s return was the only reason that he urged the applicant and Tse to leave;
在盤問時，第一控方證人同意，母親回家是他急於要申請人及謝離開的唯一原因；

In his non-prejudicial statement and video recorded interview, PW1, however, indicated that he requested the applicant and Tse to leave because he had arranged with friend(s) to go out in that afternoon.
而於無損自身利益的口供及錄影會面記錄中，第一控方證人則表示當天下午因為約了朋友去街才要求申請人及謝離開。

PW1 also agreed that he had given different versions under different circumstances.
第一控方證人亦同意他在不同的情況下說了不同的版本。

Mr Lau contended that P Li J, in directing the jury to consider the contradictions in PW1’s evidence and his explanations, had thrice requested that the jury should also consider the parts in the applicant’s evidence which were consistent with PW1’s evidence.  The details are as follows:
劉大律師指李法官在引導陪審團考慮上述第一控方證人的證供矛盾之處及其解釋時，曾三次要求陪審團應同時考慮申請人的證供當中吻合第一控方證人證供的部份，詳情如下：

1)Regarding the inconsistency in the timing of getting acquainted with the applicant, P Li J said, in considering the inconsistencies in PW1’s evidence and his explanations, the applicant’s evidence should not be neglected.  He said the applicant in his testimony had indicated that he had got acquainted with PW1 one week before the case.  The Judge said:
1)就何時認識申請人的分歧上，李法官指，在考慮第一控方證人的證供出入之處及其解釋時，不應忽略申請人的證供。李法官指申請人曾作供表示他是在案發前一星期認識第一控方證人。他說：

“… which seems to be consistent with what PW1 said, namely the acquaintance was made one to two weeks before, or even not until early March.  So when you consider this contradiction, all these pieces of evidence should be considered.”
「…似乎又吻合第一控方證人所講佢係一、兩個星期之前，或者甚至乎係3月頭先識嗰樣嘢，咁大家考慮呢一點矛盾嘅時候應該考慮晒所有呢啲證供。」

2)In respect of the inconsistency in how many times the applicant and PW1 had taken part in drug packaging before the day in question, P Li J said:
2)就案發當天前申請人與第一控方證人曾多少次參與包裝毒品的分歧上，李法官說：

“All right, but the accused’s evidence should also be considered.  The accused has said the following in the witness box.  He said that before the case he had gone [to PW1’s residence] once.  He said that on that occasion, he left after playing video games.  He said this case was the second time that he went [to PW1’s residence].  Could this support what PW1 has said, ie it was the first time that the three of them packaged drugs there [at PW1’s residence]?  It should be noted that it is necessary to look at the whole thing, including the accused’s evidence, before making a decision.”
「好喇，不過大家亦都應該考慮埋被告人嘅證供，被告人喺證人台嗰度曾經咁講過嘅，佢話喺案發之前去過[第一控方證人的居所]一次，佢話嗰次淨係打完機就走喇，佢話本案係第二次去[第一控方證人的居所]，呢個會唔會支持到第一控方證人所講，佢哋三個人係第一次喺嗰個[第一控方證人的居所]包裝毒品呢？大家要留意喇，要睇晒整體，包括被告人嘅證供先至決定。」

3)In respect of the discrepancies in the reason for which PW1 requested the applicant and Tse to leave on the day in question, P Li J said:
3)就案發當天下午第一控方證人因何事要求申請人及謝離開的分歧，李法官說：

“Also, the accused’s evidence should not be overlooked.  What did the accused say in his testimony?  He said that PW1 woke him up and in fact told him, ‘[My] mother will be back soon, leave at once.’  In such case, this seems to be consistent with what PW1 has said.  All right, while you are considering if PW1 was lying or justifying himself, you have to consider all his evidence with contradictions together with the accused’s evidence before making any decision”.
「大家亦都應該唔好忽略被告人嘅證據，被告人作供嘅時候佢講過啲咩嘢呢？佢話係第一控方證人拍醒佢，其實話畀佢聽話『阿媽就快返嚟喇，你哋即刻走喇。』咁樣，呢個又似乎吻合第一控方證人嘅講法。好喇，大家喺度考慮究竟第一控方證人係咪講緊大話或者自圓其說嘅時候，要全盤考慮晒佢矛盾嘅證供喇，同埋被告人嘅證供，然後先至去決定」。

1Mr Lau contended that by doing so, P Li J had contravened the primary principle that the jury should consider the evidence of the prosecution and that of the defence separately, that is to say, the jury should consider the prosecution evidence independently to determine if PW1 was credible or reliable, instead of considering the consistencies and inconsistencies between the evidence of PW1 and that of the applicant at the same time so as to determine the PW1’s credibility.  Even if the evidence of PW1 and the applicant are partly consistent, this should not be considered as the facts to resolve the contradictions existing among PW1’s testimony in court, his non-prejudicial statement and the video recorded interview.
1劉大律師指李法官此舉違反了陪審團應獨立地考慮控辯雙方各自證供的大原則，即陪審團應獨立考慮控方的證供以判斷第一控方證人是否可信或可靠，而非同時考慮第一控方證人及申請人的證供的吻合處或不吻合處以判斷第一控方證人的可信性。即使第一控方證人的證供與申請人的證供部分吻合，這也不應被視為事實以解決第一控方證人庭上證供與其無損自身利益的口供及錄影會面記錄所存在的矛盾。

25.2By doing so, P Li J not only shattered the focus of the defence’s criticism on PW1, but his comment in fact also went beyond the proper limit.  In the circumstances of the present case, P Li J should have only pointed out to the jury that if they accepted defence’s criticisms on PW1’s evidence for being full of discrepancies and contradictions, they might find PW1’s evidence unreliable, which would affect the credibility and reliability of the prosecution evidence for proving the “knowledge” of the applicant.
25.2李法官此舉不但消滅了辯方對第一控方證人批評的焦點，同時他的評論亦超過適當的範圍。以本案的情況，李法官只應向陪審團指出，若他們接納辯方對第一控方證人的證供充滿出入及矛盾的批評，他們就可能覺得第一控方證人的證供不可靠，因而會影響控方用以證明申請人“知情”的證據的可信性和可靠性。

25.3By doing so, P Li J also gave the impression that he, as the trial judge, expressing his personal opinion and inclination, was directing the jury to accept his views on the facts, which was obviously unfavourable to the applicant and depriving him of having a fair trial.
25.3李法官此舉亦使人覺得原審法官正在指示陪審團接納原審法官自己對事實的看法，表達了其個人意見及傾向，而他所表達的看法明顯是對申請人不利的，剝奪了申請人公平審訊的機會。

With respect, we do not agree with Mr Lau.  P Li J had set out in details to the jury the differences among PW1’s testimony in court, the record of interview and the statement given to the police previously.  He directed the jury that they were required to consider the facts of the case in its entirety in considering such conflicts.  We find such direction correct.  The jury may not conclude, only on the basis of PW1’s testimony in court and the statement given previously, that he had given different versions and thus find him an incredible witness.  P Li J had rightly explained to the jury that they might also consider the evidence given by the applicant himself to determine if PW1 was a credible witness.  In fact, the most essential dispute on this issue is, when P Li J told the jury that they might consider the evidence of the applicant, whether the judge intended to make PW1 less incredible so as to shatter the criticism that the defence had made on him.  We do not find that P Li J made such a mistake in his directions.  PW1 was a tainted witness.  After summing up the evidence of both sides to the jury, P Li J specifically reminded the jury that they should be particularly careful in considering PW1’s evidence because he had already pleaded guilty to trafficking in a dangerous drug.  PW1 had also agreed that he testified against the applicant because he could by doing so get additional reduction in sentence, which thus was a motive to exaggerate or shirk the criminality to the applicant or others.  Furthermore, PW1 had multiple conviction records, including a number of records of “theft”.  In our view, P Li J had sufficiently reminded the jury of the danger of relying on PW1’s testimony.  We do not find P Li J has biased towards the prosecution.
本庭不同意劉大律師的說法。李法官已經詳細將第一控方申請人在法庭上的證供和他早前給予警方的口供及會面記錄內容不同之處向陪審員詳細列出。他指引陪審團在考慮這些衝突的時候，他們需要考慮案件的整體案情。本庭認為這個指引是正確的。陪審團不可能只是考慮第一控方證人在法庭的證詞及早前所給的供詞而裁定他確實給予不同的版本，繼而裁定他不是一名可信的證人。李法官是正確地向陪審團說明，他們亦可以考慮申請人本人所給的證供來決定第一控方證人是否一名可信的證人。其實，本議題最重要的爭議是當李法官向陪審團說他們可以考慮申請人本人的證供時，他的用意是否是想減低第一控方證人給人一種不可信的印象，從而消滅辯方對第一控方證人的批評。本庭不認為李法官的指引犯上這個錯誤。第一控方證人是一名污點證人。李法官向陪審團引述控辯雙方的證供後，特別提醒陪審團他們應該特別小心考慮第一控方證人的證供，因為他已經認罪，承認販運危險藥物。第一控方證人亦同意他指證申請人是因為可以得到額外的刑期扣減，所以是有動機去誇大或者將罪責推卸給申請人或其他人。另外，第一控方證人是有多次刑事記錄，包括多次「盜竊」罪的記錄。本庭認為李法官已經充分提醒陪審團依賴第一控方證人證供的危險性。本庭不認為李法官有偏幫控方之嫌。

II.Wrongly applied the applicant’s testimony in court
II.錯誤地援引申請人的庭上證供

Mr Lau suggested that P Li J had applied the applicant’s testimony to resolve the discrepancies in PW1’s evidence in respect of whether the day in question was the first time that PW1 had participated in packaging dangerous drugs.  However, he failed to apply the applicant’s evidence in full correctly.  It was the applicant’s evidence that in fact before and on the day in question, the applicant had visited PW1’s residence twice in total but the applicant had never participated in drug packaging.  Therefore, this part of the applicant’s evidence had absolutely no value for reference or comparison regarding whether PW1 had participated in packaging drugs for the first time on the day in question, and what was more important, it could not support anything said by PW1.  By inviting the jury to consider whether this part of the applicant’s evidence could support PW1’s evidence, P Li J not only took things out of context but also made mistakes in the logical sense.
劉大律師指李法官有就案發當天第一控方證人是否第一次參與包裝毒品一事，援引了申請人的證供以解決第一控方證人證供的分歧。但是，他沒有全面及正確地援引申請人的證供。申請人的證供實為案發前及案發當天，申請人總共兩次到訪第一控方證人的居所，但申請人從沒有參與包裝毒品，故此，申請人這部分的證供與第一控方證人於案發當天是否第一次參與包裝毒品根本完全沒有參考或比較的價值，更不能支持第一控方證人的任何說法。李法官邀請陪審團考慮申請人這部份的證供是否能支持第一控方證人的證供這做法，不但是斷章取義，同時亦犯了邏輯上的錯誤。

We agree that the applicant’s evidence on the visit to PW1’s residence may simply be consistent with PW1’s testimony in court but it does not help in respect of the discrepancies among PW1’s testimony in court, the record of interview and the statement given to the police previously.  However, P Li J did not tell the jury that the applicant’s evidence could wholly resolve the discrepancies in PW1’s evidence.  P Li J only told the jury that they should consider the applicant’s evidence, but they had to consider by themselves if the applicant’s evidence support PW1’s testimony in the sense that the day in question was the first time that they packaged dangerous drugs.
本庭同意申請人到訪第一控方證人的家的證供可能只是與第一控方證人在法庭上所給的證供有所吻合，但對於第一控方證人在法庭上的證供及之前給予警察的口供及會面記錄所產生的分歧作用不大，但是李法官並沒有向陪審團說，申請人的證供是可以全盤解決第一控方證人本身供詞上的分歧。李法官只是對陪審團說他們應該考慮申請人的證供，但他們是要自己考慮申請人的證供是否會支持第一控方證人所說當日是他們第一次包裝毒品。

III.Drastic difference in dealing with the evidence of the applicant and PW1
III.處理申請人與第一控方證人的證供的方式大相逕庭

Mr Lau said that P Li J, in directing the jury to consider the applicant’s evidence, had obviously taken a completely different approach.  P Li J merely repeated the applicant’s evidence without suggesting to the jury that PW1’s evidence might support the applicant’s evidence in certain aspects, which was quite different from the way in which PW1’s evidence was dealt with.  Such contradictory approaches were unfair to the applicant, and hence P Li J’s summing up as a whole appeared to be not impartial and give the impression of unfairness.
劉大律師說當李法官在引導陪審團考慮申請人的證供時，明顯地採取了截然不同的取態，李法官只是重複敘述了申請人的證供，並沒有如處理第一控方證人的證供一樣，向陪審團指出第一控方證人的證供可能在若干環節上支持着申請人的證供。如此相反的處理方法對申請人構成不利，因此李法官的總結講辭整體看來欠持平，予人不公平的感覺。

We do not agree that P Li J in dealing with the applicant’s evidence gave an impression of unfairness.  P Li J recited not only the applicant’s testimony, but also the evidence in support of the applicant’s defence, and in respect of the evidence unfavourable to the applicant, he asked the jury not to jump to a conclusion prematurely and to give the benefit of doubt to the applicant.  The following is examples set out by Mr Tam:
本庭不同意李法官在處理申請人的證供時給予旁觀者一種不公平的感覺。李法官並不是單單引述申請人的證供，他亦引述支持申請人辯解的證據及就對申請人不利的證據要求陪審團不要過早作出結論及將疑點歸於申請人。以下是譚大律師列出的例子：

Regarding the applicant’s testimony that he had taken a Youth Employment and Training Programme (“YETP”) course, P Li J asked the jury to consider exhibit D2, ie the YETP certificate.
申請人就他參與展翅課程的證供，李法官要求陪審團考慮證物D2，即展翅證書。

The applicant had two phones on his person and he said Tse also had two phones.  P Li J said that merely carrying two phones did not mean anything and not necessarily relate to drug trafficking, and advised not to draw any immature conclusion.
申請人身上有兩部電話及他說謝亦同樣有兩部電話，李法官說純粹帶兩部電話不代表甚麼，與販毒未必有關，不應過早作結論。

Upon asking the jury to consider PW1’s criminal records, P Li J immediately told them that the applicant was of good character and more credible and had a lower propensity to contravene the law.
李法官要求陪審團考慮第一控方證人前科後立刻向他們說申請人有良好品格，較可信，犯案機會較低。

The applicant had traces of “K Chai” on his hands but this cannot prove that there was “K Chai” on each finger.  The applicant had no “K Chai” on his fingernail.  If it is not sure how the applicant’s hand was contaminated with “K Chai”, for example by packaging dangerous drugs or by wiping rubbish on the table, the benefit of the doubt should be given to him.
申請人手有微量「K仔」，但這不證明每一隻手指有「K仔」，而申請人的指甲則沒有「K仔」。若果不肯定「K仔」如何沾上申請人的手上，如包裝毒品或申請人用手掃檯面的垃圾，疑點利益要歸於他。

PW1 testified that the dangerous drug was taken out from a manila envelope, but no such envelope was retrieved.
第一控方證人證供說毒品是從公文袋內拿出來，但沒有找回這公文袋。

No fingerprint of the applicant was found on the package of the dangerous drug.
申請人的指模沒有在毒品的包裝上找到。

When the applicant was arrested, Tse was holding a plastic box with dangerous drug inside.  The video recording of the lift did not show that Tse or the applicant was holding the plastic box when going to PW1’s flat.
申請人被捕時，謝拿着內有毒品的膠箱。在升降機的錄影帶中看不到謝和申請人在去第一控方證人的單位時拿着膠箱。

If the applicant’s testimony is true or may be true, he should be found not guilty.  Even if the applicant’s testimony is not accepted, provided it is not sure whether PW1 has told the truth, he should be found not guilty.
若果申請人的證供是真或可能是真，便應該判他無罪。即使不接納申請人的證供，若果不肯定第一控方證人是否說真話，就應該判申請人無罪。

IV.Failed to remind the jury that allegations with no evidential basis should not be considered
IV.錯誤地沒有提醒陪審團不應考慮沒有證供基礎的指控

The prosecution in cross-examining the applicant did not challenge his enrolment in the YEPT course, however, in their closing submission, the prosecution alleged that the applicant’s enrolment in the YEPT course before the case took place was not true and challenged the reasonableness and credibility of the applicant's testimony.  This has contravened the principle in Browne v Dunn (1894) 6 R 67, and P Li J in his summing-up had failed to properly remind the jury that they should not take into account the prosecution’s allegation above because this part of the allegation had not been put to the applicant in his cross-examination, thereby depriving the applicant the right to explain, and it was just a repetition of the relevant evidence of the applicant in examination-in-chief and cross-examination.
控方在盤問申請人時沒有質疑他報讀展翅課程一事，但控方於結案陳詞指稱申請人於案發前就讀展翅課程一說並非真有其事，質疑申請人證供的合理性及可信性，這違反Browne v. Dunn (1894) 6 R 67的原則，而李法官在總結講辭上並沒有正確地提醒陪審團不應對控方以上的指控作出考慮，因為這部份指控在盤問申請人時未有向他指出，因而剝奪了申請人作出解釋的權利，而只是重複了申請人在主問及盤問下的相關證供。

We do not agree with this view.  It can be seen from the transcript of the trial that counsel for the prosecution did challenge the applicant’s enrolment in the course concerned.  The sharp questions in his cross-examination clearly showed that he did not accept what the applicant had said.  See: Lo Chun Nam v HKSAR [2001] 1 HKLRD 180.  In our view, this ground has no merit.
本庭不同意這說法。從審訊謄本可見控方大律師是質疑申請人供讀有關課程，他審問申請人的尖銳性問題明顯表示他並不是接納申請人的聲稱，見：Lo Chun Nam v. HKSAR [2001] 1 HKLRD 180。本庭認為這並不是一個合理的理據。

V.Empanelment of jury
V．揀選陪審員

This ground of appeal has been abandoned
劉大律師放棄依賴這上訴理據。

Conclusion
總結

We do not agree that the applicant was deprived of having a fair trial or that his conviction was unsafe or unsatisfactory, and therefore the application is dismissed accordingly.
本庭不同意申請人被剝奪公平審訊的機會或者他的定罪是不安全及不穩妥的，故此本庭駁回申請。

Mr Clement Lau and Ms Carol Shek, instructed by Wong & Co., for the applicant
答辯人：由律政司副刑事檢控專員譚耀豪代表。

Mr William Tam, DDPP of the Department of Justice, for the respondent
申請人：由黃律師事務所轉聘劉仲文大律師及石亦芝大律師代表。