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

Appeal against conviction
定罪上訴

The applicant appeared before the Court of First Instance on one count of trafficking in a dangerous drug.  It was alleged that he unlawfully trafficked in 279.09 grammes of a mixture containing 155.01 grammes of heroin hydrochloride.
申請人在高等法院原訟法庭被控一項販運危險藥物罪，即非法販運內含 155.01 克海洛英鹽酸鹽的 279.09 克混合劑。

Following a trial before Deputy Judge Pang and a jury, the applicant was convicted and sentenced to 10 ½ years’ imprisonment.
經原訟法庭暫委法官彭偉昌與陪審團審訊後，申請人被裁定罪名成立，判監 10 年半。

The applicant now seeks leave to appeal against conviction.
申請人不服定罪，現申請許可對定罪提出上訴。

The prosecution case
控方案情

On 8 August 2001, police officers arrived at premises where the applicant resided (“the premises”).  At that time, the applicant was alone inside the premises.  Having shown a search warrant to the applicant, the officers conducted a search inside the premises and found heroin and paraphernalia, including:
2001 年 8 月 8 日，警員到達申請人居住的單位 (“該單位”)。當時該單位內只有申請人。警員向他出示搜查令後，在該單位進行搜查，並搜出海洛英及有關的物品，包括 ：

6 plastic boxes in the kitchen, containing a large amount of white powder being an additive commonly found in mixtures of heroin hydrochloride;
在廚房搜出 6 個膠箱內載著大量白色粉末，屬於海洛英鹽酸鹽混含物裡常見的添加劑；

a black plastic bag under the stove in the kitchen, containing 13 small packets of heroin;
在廚房灶底搜出一個黑色膠袋，載有 13 小包海洛英；

a carton in the living room, in which a Philips box containing a mixer and its components was found; on top of the box was a big packet of white powder being an additive commonly found in mixtures of heroin hydrochloride;
在廳內搜出一個紙皮箱，內有一個 Philips 盒裝著一個攪拌機及組件；而盒上有一大包白色粉末，屬於海洛英鹽酸鹽混合物裡常見的添加劑；

a dark grey paper carrier bag by the side of the carton in (3) above, containing some re-sealable plastic bags of various sizes, white plastic bags, a roll of transparent plastic bags and a stack of 3 small pieces of paper cut out from a newspaper;
上述（三）紙箱旁搜出一個深灰色手挽紙袋，載著一些大小不同的可用封口膠袋、白色膠袋、一卷透明膠袋和一疊共 3 張用報紙剪成的小紙塊；

traces of heroin on the dust screen of the air-conditioner in the premises.
該單位內的冷氣機隔塵網上發現有微量海洛英。

The applicant was the registered tenant of the premises and lived there on his own.  On 23 July 2001, he was admitted to hospital.  Upon discharge on 3 August 2001, he returned to the premises and continued to live there until the day of the alleged offence.  Between 3 August and 8 August 2001, he lived alone at the premises and no one visited him.
申請人為該單位的登記住戶，他獨居於該單位內。申請人在 2001 年 7 月 23 日曾入醫院留醫。2001 年 8 月 3 日他出院後返回該單位居住，直至案發當日。在 2001 年 8 月 3 日至 8 月 8 日期間，他是獨居於該單位內，而沒有任何人到訪。

The applicant’s defence
申請人的答辯

The applicant elected to give evidence in defence.  He said that he had been too ill to check the condition of the premises ever since his discharge from the hospital on 3 August 2001, and that he did not notice that the various items found by the police as mentioned above were kept inside the premises.  He said he intended to seek medical treatment in Mainland China in March 2001, so he handed the other set of keys to the premises to a man living in his neighbourhood and asked him to pay rent and clean the premises for him.  He has not asked that man for the keys back since then.
申請人選擇作供答辯，他指由於健康狀況太差，所以在 2001 年 8 月 3 日出院後一直沒有精神察看該單位內的情況，他沒有留意該單位內存放着上述被警員搜出的各項物品。他說在 2001 年 3 月因打算到內地求醫，曾把該單位的另一套鎖匙交給一名男街坊，委託他交租及打掃該單位，但之後一直沒有向該名男街坊索回該套鎖匙。

This case essentially concerned findings of fact.  The applicant called two doctors, who testified that he was suffering from heart disease, tracheal disease and kidney failure.  The applicant underwent angioplasty on 27 August 2001.  The doctors said his mental condition was not as good as that of ordinary people.
本案是一宗涉及事實裁決的案件。申請人傳召兩名醫生作證。他們指申請人患有心臟病、氣管病及腎衰竭。申請人曾在 2001 年 8 月 27 日接受了血管擴張手術。醫生指他的精神狀況比平常人差。

Looking at the facts as a whole, the jury were entitled to find, on the basis of the prosecution evidence, that the applicant had knowledge of the heroin kept inside the premises and that he was “in possession” of those drugs.  The applicant lived alone at the premises, which, according to the evidence, had been used as a drug cutting and packaging centre.  Apart from heroin, other items were found in the premises, including additives that were used for mixing with heroin, a mixer and a large number of plastic bags.  Those items could all be used for mixing and packaging drugs.  Apart from the heroin, other items were all placed in conspicuous places inside the premises.  If the jury refused to accept the applicant’s defence, it was open to them to further infer that the applicant possessed the dangerous drugs found inside the premises for the purpose of trafficking.
綜觀整件案情，陪審團是可以根據控方提供的證據裁定申請人對該單位內存放的海洛英一事是知情的及是「管有」這些毒品。申請人獨居於該單位內。證據顯示該單位是個毒品稀釋及包裝中心。在該單位除了搜出海洛英外，還搜出其他物品，例如用來混合海洛英的添加劑、攪拌機及大量的膠袋等。該些物品都是可以用作混合及包裝毒品的用途。除了海洛英外，其他的物品都是放在該單位內顯眼的地方。如果陪審團拒絕接納申請人的辯解，他們是可以進一步推斷申請人是管有在該單位內搜出的危險藥品作為販運用途。

Grounds of appeal
上訴理由

The applicant raises three grounds of appeal.  The first relates to the “lies” direction given by Deputy Judge Pang to the jury.  The applicant contends that it was unnecessary to give a “lies” direction and that the direction which the Judge did give was incomplete.  The second ground is that the Judge failed to explain clearly the definition of “possession”.  The third ground is that the Judge did not clearly explain the definition of “trafficking”.
申請人提出的上訴理由有三點。第一是關於彭法官對陪審員作出的「謊言的指引」。申請人指彭法官不必要地向陪審員作出這個指引，而在作出指引時，卻沒有作出一個全面的指引。第二是彭法官沒有清楚解釋「管有」的定義。第三是彭法官沒有清楚解釋「販運」的定義。

“Lies” Direction
謊言的指引

Generally speaking, a “lies” direction is unnecessary save under certain circumstances.  The purpose of such a direction is to make it clear to the jury that even if the defendant has lied, it does not necessarily follow that he is guilty.  In HKSAR v. Mo Shiu Shing [1999] 1 HKC 43, this Court pointed out that a “lies” direction has to be given under the following circumstances:
一般來說，法官只是在某些程況下才需要向陪審員作出「謊言的指引」。指引的目的是向陪審員清楚說明，就算被告人曾經說謊，也不表示他是有罪的。本庭於毛兆成（譯音）HKSAR v. Mo Shiu Shing [1999] 1 HKC 43 一案中指出在以下的情況下，法庭需要作出「謊言的指引」 ：

Where the defence relies on an alibi;
被告人的答辯理由是他不在罪案現場；

Where the judge considers it desirable or necessary to suggest that the jury should look for support or corroboration of one piece of evidence from other evidence in the case, and amongst that other evidence draws attention to lies told, or allegedly told, by the defendant;
當法官指示陪審團案件必須有佐證去支持控罪，而這些佐證涉及被告人曾經說過的謊言；

Where the prosecution seeks to show that something said, either in or out of the court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge which is sought to be proved;
控方指被告人在法庭作證時或在其他時候曾經說過一些謊話，這些謊話是關於某些獨特及有別於涉及控罪的議題，而控方依賴這些謊言作為針對被告人控罪的罪證；

Where although the prosecution has not adopted the approach stated in (3) above, the judge reasonably envisages that there is a real danger that the jury may do so.
就算控方沒有採用上述第 3 項的做法，但若法官合理地認為陪審團會有可能會採用上述的做法，他就需要作出「謊言的指引」。

According to Mo Shiu Shing, a “lies” direction should be modified as appropriate in light of the circumstances of the particular case.  In general, such a direction will be adequate if it conveys the following two fundamental messages:
根據毛兆成，「謊言的指引」的內容必須按每件案件的案情而作出適當的配合。一般而言，若這指引包含了以下兩點基本要求已經是足夠的 ：

the lie must have been established upon the defendant’s admission or proved beyond reasonable doubt;
被告人承認說謊或者控方已經在亳無疑點下證明被告人說謊；

the mere fact that the defendant lied is not in itself evidence of guilt since defendants may lie for innocent reasons.  Therefore, it is only when the jury is sure that the defendant did not lie for an innocent reason that a lie can be used in support of the prosecution case.
被告人說謊，這點本身並非罪證，因為被告人說謊是或者可能是由於一些清白或無辜的理由而導致的。陪審團必須肯定，被告人是並非因為清白或無辜的原因而說謊時，才可以把他說謊一事視為支持控方指控他的證據。

In the present case, Deputy Judge Pang did give a “lies” direction to the jury, but obviously not by reason of any of the four circumstances prescribed in Mo Shiu Shing and set out above.  The Judge raised this point when he was directing the jury on how to deal with the evidence given by witnesses (including the defendant’s evidence).  He first stated that the burden of proof was on the prosecution, and that even if the jury did not believe anything the defendant and his witnesses had said, they could not jump to a verdict of guilty, because such a verdict could be made only where the evidence which they accepted as true was sufficient enough for them to be sure of the defendant’s guilt.  The Judge then gave the following direction in relation to lies:
在本案，彭法官曾經向陪審團提出「謊言的指引」，但明顯地，他作出指引並不是因為本案出現毛兆成所列出的四項原因的任何一項。他是在指導陪審團如何處理證人的證供 (包括被告人的證供) 時提出這一點的。他首先指出舉證責任在於控方，就算陪審團完全不相信被告人及他的證人亦不能夠因此而裁定被告人有罪，因為這樣的裁決是要視乎陪審團所接納為真實的證據是否足夠令他們肯定被告人有罪。接着，他說出以下有關謊言的指引 ：

“As a matter of fact, accused persons may not tell the truth, but that does not necessarily mean they are guilty.  Sometimes they just want to bolster a genuine defence, that is, in colloquial terms, to lay it on thick.  Or they may think that it would be hard to have the truth believed; or the truth involves some disgraceful conduct which fell short of being criminal; or they may lie simply out of panic, and so on and so forth.  So if you really do not believe something the defendant has said and think that he has lied, but that he may have done it for reasons unrelated to guilt that I just talked about, then the only thing you should do is to disregard such part of the defendant’s evidence that you think is a lie, and concentrate on any other evidence you accept as true, including such part of the defendant’s evidence that you regard as true.  I wish to make it clear that I am not saying the defendant has lied in any respect; I am just saying that, even if you are sure he has lied, you should not and cannot convict him for this reason alone.”
其實被起訴嘅人可能係會唔講真說話，但係就唔一定因為佢有罪，有時佢哋只係為咗加強一啲真實嘅辯護，講俗啲即係作大少少。又或者覺得實情唔係咁容易令人相信，又或者實情涉及一啲唔係好光彩，但係又唔至於犯罪嘅行為，又或者只係驚，林林總總。所以假如如果你真係唔信被告所講過嘅一啲乜嘢，認為佢講大話，但係就可能係為咗剛才提及同嗰啲有罪冇關嘅原因嘅話，咁你哋唯一應該做嘅就係唔好去理會佢講大話嗰部分，而集中考慮任何其他你哋接受為真實嘅證據，包括從被告而嚟，而你哋又認為係真實嗰一部分嘅證據。喺呢度我要澄清，我唔係話被告喺邊度講咗啲咩嘢大話，我意思係就算你哋認定佢講過大話，亦都唔應該同埋唔能夠就係為咗原因就定佢個罪。」

In Mo Shiu Shing, this Court also pointed out that, where a “lies” direction is unnecessary because the case merely involves a conflict between prosecution evidence and defence evidence, giving such a direction would only add complexity and do more harm than good.  The present case did not call for a “lies” direction, and Deputy Judge Pang gave such a direction apparently because he wished to put the jury in a better position to assess the defendant’s evidence.  His intention was to safeguard the defendant’s rights.  In our view, even though the Judge’s direction on lies had been unnecessary, the applicant’s conviction was not rendered unsafe unless there is clear evidence that the jury had been confused by that direction.
本庭在毛兆成一案中亦指出，如果案件是根本不需要作出「謊言的指引」，因為案情只是涉及控辯證據的衝突，作出這個指引只會令案件更加複雜，而且弊多於利。本案並不需要「謊言的指引」，但彭法官作出這個指引的明顯目的是希望陪審團更能明確地處理被告人的證供。他的本意是保障被告人的權利。本庭認為除非有明顯證供顯示陪審團被這個指引混淆，否則就算「謊言的指引」是不需要地被提出，亦不會影響案件的穩妥性。

The applicant contends that the jury did get the wrong impression from the Deputy Judge Pang’s direction that he had lied.  Following the summing-up, and before the jury retired to deliberate, the foreman verbally raised two questions with the Judge:
申請人指本案的陪審團確實是因這個指引而錯誤地認為他曾說謊言。當彭法官總結案情完畢，而陪審團還未退庭進行商議時，首席陪審員曾向彭法官提出兩個口頭問題，即 ：

佢（申請人）知道有呢啲嘢喺度，但係唔知道嗰啲係乜嘢，佢唔理佢，算唔算有罪？	“(1) [if] he (the applicant) knew something was there but did not know what it was, and he did not care about it, is he guilty?
(一)

[if] the defendant knew these stuff and he … also knew it was drugs, but he did not care about it, that is, for instance, he did not call the police or the like, is he guilty?”
被告知道咗呢啲嘢，佢….亦都知道係毒品，但係佢唔理佢，即係譬如唔通知警方或者等等，算唔算有罪？」

15.	Deputy Judge Pang requested the jury to write down the above questions or other questions on which they needed an answer from the court.  After deliberation, the jury returned with the following question in writing:
彭法官要求陪審團用書面形式提出上述問題，或其他需要法庭解答的問題。陪審團接着退庭商議，後來他們以書面提出以下的問題：

“If the defendant knew that there was something in the premises but did not know it was drugs, and he neither took any action nor informed the police, then was he in possession of that article?”
若被告知道單位內有一些東西，並不知道是毒品，但沒有採取任何行動，並沒有通知警方，是否管有該物品？」

Mr Eric Kwok, counsel for the applicant, submits that this written question was the same as the first verbal question raised by the jury.  He suggests that the jury might have left out the second verbal question because, having heard the summing-up, they had formed the view that the applicant’s assertion that he had no knowledge of the existence of the drugs was a lie, and they had used this lie as evidence against the applicant.
代表申請人的郭棟明大律師指，這個書面問題和陪審團提出的第一個口頭問題是相同的，但省去了第二個口頭問題，這其中原因可能是陪審團聽了總結案情後，認為申請人稱他不知毒品的存在是謊話及他們採用了這個謊話來支持指控申請人的控罪。

Ms Mary Sin, acting for the respondent, submits that the Judge had in fact not given any “lies” direction, because he told the jury that even if they took the view that the defendant had lied, they should not and could not convict him solely on that basis.  Ms Sin submits that, in terms of meaning and nature, what the Judge told the jury was a far cry from the standard “lies” direction, which allows the jury to consider using lies as corroborative evidence under certain circumstances.  Since the Judge had not given any “lies” direction, the problem which the relevant authorities had highlighted, namely that of the jury being confused by such a direction, simply did not arise in the present case.
代表答辯人的洗佩霞律師指，其實法官並沒有作出「謊言的指引」，因為法官向陪審團指出；就算他們認為被告人曾說謊，他們也不應該及不能夠因此裁定被告人有罪。洗律師指這跟標準的「謊言指引」讓陪審團在某些條件下，可以考慮以謊言為佐證的涵意及性質有天淵之別。既然彭法官沒有作出「謊言的指引」，有關案例中所詬病會令陪審團有混淆不清的情況也不會發生。

We take the view that Deputy Judge Pang did give a “lies” direction, although it did not contain all the elements of a standard “lies” direction.  However, we do not agree with Mr Kwok’s contention that the jury did not put the second verbal question into writing because, having heard the Judge’s “lies” direction, they had formed the view that the applicant was lying when he said he had no knowledge of the drugs, and had therefore used the lie as evidence against him.  In our view, the Judge’s direction made no mention whatsoever of the circumstances under which the jury could use a lie as corroborative evidence against the applicant, and hence could not have led the jury to the decision that Mr Kwok suggests.
本庭認為彭法官的確是對「謊言」作出了指引。雖然指引的內容並不包括所有標準「謊言的指引」的要素，但本庭不同意郭大律師的指稱，陪審團不再提出先前的第二個口頭問題是因為聽取了彭法官有關「謊言的指引」後認為申請人說他不知道毒品的存在是謊言，所以引用了這個謊言去支持被告人的控罪。本庭認為彭法官的指引是完全沒有提及陪審團是可以在甚麼情況下才可以用謊言作為支持控罪的佐證，所以陪審團根本不是因為彭法官的指引而作出郭大律師所聲稱的裁決。

Furthermore, even if the jury had conjectured as to this matter among themselves, Mr Kwok’s suggestion is still not defensible as a matter of logic.  The wordings of the three questions raised by the jury had one thing in common, namely the defendant had knowledge of, and did not care about, the existence of the items; at the same time, the questions were different in that the first verbal question assumed the defendant did not know what the items consisted of, the second verbal question assumed the defendant knew that those items were drugs, and the third question (the only written question) assumed the defendant did not know that those items were drugs.  This shows that, when the jury raised the written question, they were still concerned about the findings to be made if they believed that the applicant indeed did not know that the items in the premises were drugs.  Deputy Judge Pang had clearly and correctly told the jury that, in that particular situation, they had to find that the applicant was not “in possession” of those drugs.  Therefore, the suggestion that, having heard the “lies” direction, the jury had formed the view that the applicant was lying when he said he had no knowledge of the existence of the drugs, is far-fetched and inconsistent with the facts of the case.
其次，就算陪審團對這問題私自作出揣測，郭大律師所提出的論點在邏輯上是站不住腳的。陪審團提出的前後三個問題的共同點都是被告人知道物品的存在及不加以理會；不同之處是第一個口頭問題是被告人不知道這些物品的內容，第二個口頭問題是被告人知道這些物品是毒品，而第三個問題，即書面的唯一問題是被告人不知道這些 物品是毒品。所以當陪審團提出書面問題時，他們仍然是關注着如果申請人確實不知道該單位內的物品是毒品，他們應該作出甚麼裁斷。彭法官已經清楚及正確地向陪審團指出在這個情況，他們要裁決申請人沒有「管有」那些毒品。所以，如果指陪審團在聆聽「謊言的指引」後已經認為申請人說他不知道毒品的存在是謊話，這是一個牽強及不符合案情的指稱。

In his submission before us, Mr Kwok sought to make the following amendment: when he said that the jury had, in light of the summing-up, formed the view that “the applicant was lying when he said he had no knowledge of the existence of the drugs”, he actually meant that the jury had formed the view that “the applicant was lying when he said he had no knowledge of the existence of the items”.
郭大律師在法庭陳詞時修改了陳詞內容，說他不是指陪審員是聽了總結後，而認為「申請人說不知毒品的存在是謊言」。他指出其實想說的是「申請人說不知物品的存在是謊言」。

We wish to point out that this was not what the jury raised in their questions.  Their questions had all along rested on the supposition that the applicant had knowledge of existence of items in the premises.  Therefore, even a shift in the focus of Mr Kwok’s submission will not serve to show that the jury had been confused by the “lies” direction.
本庭要指出這並不是陪審團所提出的問題的內容，他們從始至終都是根據申請人知道該單位有物品而提出有關的問題，所以就算郭大律師改變他的陳詞要點，也不能證明陪審團被「謊言的指引」混淆。

Mr Kwok also submits that Deputy Judge Pang failed to follow the standard “lies” direction in that he had not directed the jury that the applicant must admit to having lied or the prosecution must prove the lie beyond all reasonable doubt.  With respect, we have difficulty in understanding this ground of appeal.  As we have already pointed out, the Judge’s “lies” direction was not concerned with directing the jury on the circumstances in which lies could be used as corroborative evidence.  Mr Kwok’s contention, therefore, does not constitute a valid ground of appeal.
郭大律師亦指彭法官沒有根據標準「謊言的指引」向陪審團指出，申請人必須承認他曾經說過謊話或者控方已經在毫無合理疑點下證明申請人說過謊話。這個上訴理由是令人費解的，正如本庭早前說過，彭法官所作出有關「謊言的指引」並不是指導陪審團在甚麼條件下才可以引用謊言作為佐證，所以郭大律師提出這一點並不構成合理的上訴理由。

To avoid any further disputes on this issue, we take this opportunity to make it clear that trial judges should give a “lies” direction only when it is necessary.  In normal circumstances, a judge is not required to give the directions set out in paragraph 11 above.
本庭在此指出，為避免日後就這個議題再有爭拗，主審法官應在有必要的情況下才作出「謊言的指引」。在通常的情況下，法官是不需要提出上述第 11 段所列的指引。

Definition of “possession”
「管有」的定義

In HKSAR v. Chiu Fung Kuen and Yim Chi Shing (transliteration) (趙鳳娟及嚴之成) (CACC 475/2001), this Court held that, in order to prove “possession” of drugs by a defendant, the following elements have to be established:
本庭在香港特別行政區訴趙鳳娟及嚴之成一案 (CACC 475/2001)  指出要證明被告人「管有」毒品必須證明下列要素 ：

the defendant had knowledge of the existence and nature of the drugs;
被告人對毒品的存在及其性質有認知；

the defendant had the intention and power to retain the relevant drugs by using or employing other means when necessary;
被告人有意圖及能力及在有需要時使用或利用其他方法保留有關毒品；

when the defendant used or employed other means to retain the relevant drugs, he also had the power to exclude others from using and keeping the relevant drugs.
當被告人使用或利用其他方法保留有關毒品時，被告人亦有能力去排除其他人士使用或保管有關毒品。

Mr Kwok submits that Deputy Judge Pang had failed to point out clearly the second of the three elements mentioned above, namely the defendant had the intention and power to retain the relevant drugs by using or employing other means when necessary.  In particular, when the jury raised those two questions, the Judge should have immediately made it clear that knowledge was not the same as “possession”.
郭大律師指彭法官未有明確指出上述三個要素的第二個要素，即有意圖及能力及在有需要時使用或利用其他方法保留有關毒品。尤其是當陪審團提出那兩個問題時，彭法官應立即明確地指出認知不等同「管有」。

With respect, we do not agree with Mr Kwok on this issue.  In explaining “possession” to the jury, Deputy Judge Pang referred to two definitions of the term.  The first was to hold a physical object directly, and the second was to retain the right of control over an object.  The Judge gave the following direction regarding the first definition of “possession”:
本庭不同意郭大律師的說法。彭法官解釋「管有」時向陪審員提出「管有」的兩種定義。第一是直接把握實物；第二是對物件保留一個控制權。對於第一種類的「管有」，彭法官作出如下的指引 ：

“It is to hold a physical object directly.  For example, I am holding this law book in my hand.  This is a conscious act.  I do want to hold it, I know what I am holding, and I know it is a law book.  I also have my own purpose of holding it, for instance, I want to read it or move it from one place to another in order to keep it from getting wet, or maybe I want to take it back into the chambers, and so on.  This is to hold a physical object directly.”
係直接把握住實物，例如我手揸住呢部法律典籍，呢個係一個有意識嘅行為，我係想揸住佢嘅，我知道我揸住嘅係乜嘢，我知道係一本法律典籍。揸住佢，我亦都有我嘅用意，例如係搦嚟睇，又或者唔想整濕，由一邊放到另外一邊，又或者要帶番返入內庭，諸如此類，呢個就係直接把握住實物。」

As for the second definition of “possession”, Deputy Judge Pang gave the following direction:
至於第二種「管有」，彭法官作出了如下的指引：

“However, I have many such law books.  This book is only one of them.  The other books are in my office.  Although they are not in my hands at this moment, I can get them and read them anytime I want, or lend them to someone or refuse to lend them to anyone.  In this way, the other law books in my office are still in my possession, but such possession is in the second sense, which, put simply, is to retain the right of control over the objects.”
但係呢啲嘅法律典籍我好多個噃，呢個只係其中一部啫，其他就喺我裡面嘅辦公室，而家雖然唔喺手，我要嗰時候卻係可以隨時查閱，又或者搦嚟借畀人，又或者唔借畀人，咁樣我對其他喺裡面嗰啲法律典籍仍然係管有，但係就係第二種意義嘅管有，簡單講就係對物件保留一個控制權。」

In his directions, Deputy Judge Pang did not expressly refer to the need for the applicant to have the “intention” and “power” to use those drugs.  This notwithstanding, the requirements of “intention” and “power” were obviously included in the illustrations he used.  When he said he was holding a book, he referred to his intention, which might be to read it or to take it back to his chambers; or when he was not holding other books, he could always have access to them or lend them to others.  These were all practical illustrations of the need for the defendant to have “intention” and “power” to use this item.  In Chiu Fung Kuen, this Court held that the trial judge’s direction on possession was inadequate, because the example he used did not demonstrate the need for the defendant to have “power” to use the relevant item.  That example related to the use of books of the court in a courtroom by a barrister.  As this Court pointed out, a barrister does not have the “power” to use the books of a court without permission.  Even if the barrister has the requisite intention, he still does not have “power” to exercise control over the books of a court.  This is entirely different from the example used by Deputy Judge Pang in the present case.  The Judge of course had the “intention” and “power” to use his books whenever he needed them.  The example given by the Judge contained all the elements of “possession”.
雖然彭法官在作出上述指引時並沒有引用申請人需要有「意圖」或「能力」使用該毒品的字眼，但他所舉出的例子明顯地包括了使用毒品的「意圖」及「能力」。當他說他手持書本時，他是有他的用意，例如拿來看或者把書帶回內庭；或者就算他不是手持其他的書本，但他是可以隨時閱讀這些書本或將它們借給別人，這些都是有關被告人需要有「意圖」及有「能力」使用這物品的實際例子。在趙鳳娟一案，本庭認為原審法官所作出有關管有的指引並未足夠，因為他引用的例子並不能顯示被告人有「能力」使用有關的物品。原審法官引用的例子是大律師在法庭使用法庭的書本，正如本庭所說，在未獲得書本的物主批准，大律師是沒有「能力」私自使用法庭的書本。即使大律師是有意圖，但他是仍然沒有「能力」控制法庭的書本的。這和彭法官在本案中所採用的例子截然不同。如果彭法官需要使用他的書本，他當然是有「意圖」及「能力」去使用。彭法官引用的例子是包括了「管有」的定義的所有要素。

For this reason, we do not find anything improper in the direction on “possession” in the present case.  In our view, however, it would be more appropriate for judges to set out all the elements of “possession” before citing examples to illustrate those concepts.
故此本庭認為本案有關「管有」的指引並無不妥之處，但本庭必須提出更適當的做法是法官首先列出「管有」的各項要素，然後才引用例子來詮釋這些要素。

Mr Kwok queries why the jury still asked questions if they had understood Deputy Judge Pang’s direction on “possession”.  The fact that the foreman raised the verbal questions immediately following the summing-up shows that those questions were what the jury had discussed the day before.  When he raised the verbal questions, they had not reached a conclusion on the issues raised in the summing-up.  This does not mean that they did not understand the direction on “possession”.  As to the subsequent written question, the Judge had clearly told the jury that, if the applicant did not know that those items were drugs, he would not be “in possession” of them.
郭大律師質疑，如果陪審團是明白彭法官有關「管有」的指引，為何他們再提出問題呢？當首席陪審員在彭法官引導完畢後，即時提出口頭問題已經說明這問題是他們在早一日討論過的問題，所以當他提出口頭問題時，陪審團是仍未對彭法官的總結作出結論，這並不表示他們是不了解有關「管有」的指引。至於其後的書面問題，彭法官已經直接了當地告訴他們，若申請人不知道這些東西是毒品，他就是沒有「管有」它。

Direction on trafficking
販運的指引

The third ground of appeal contends that Deputy Judge Pang had failed to give a clear and complete direction on the meaning of “trafficking”.  Mr Kwok submits that, in explaining term “trafficking”, all Deputy Judge Pang did was quoting the words of the relevant ordinance and pointing out that “trafficking” was different from “peddling”, and he had failed to give any further explanation in light of the circumstances of the present case.
第三個上訴理由是彭法官未能對陪審團就「販運」的定義作出清晰及全面的引導。郭大律師指彭法官在解釋「販運」的定義時只是重新引述有關條例中的字句及指出「販運」並不等同於「販賣」，而沒有因應今次案件的案情加以詮釋。

With respect, we do not agree with this submission.  In explaining the term “trafficking”, Deputy Judge Pang did in fact tell the jury that “trafficking” meant cutting, packaging and selling drugs.  This direction was clearly directed at the circumstances of the present case.  The prosecution alleged that the premises had apparently been used as a drug cutting and packaging centre.  The Judge also pointed out to the jury that the focus of this case was whether the applicant had done any act of “trafficking”, and this hinged on whether he had been “in possession” of the drugs in question.  The Judge referred to the prosecution’s remark that the drugs and other items were found in conspicuous places inside the premises, and this, the Judge said, allowed for only two possibilities: first, those items belonged to the applicant himself; and second, others had placed these items inside the premises with the applicant’s consent.  In the present case, the jury were entitled to find that the items in the premises, including the drugs, were in the applicant’s “possession”.  Given the nature of those items, the jury were also entitled to infer that the applicant was “in possession” of those items for the purpose of “trafficking”, because earlier on Deputy Judge Pang had explained that cutting, packaging and selling drugs could amount to “trafficking”.  The quantity and value of the drugs involved, the fact that the drugs had already been put in different packets, and the presence of drug cutting items and measuring apparatus in the premises, could all be relied on by the jury as evidence of “trafficking”.  For this reason, we take the view that the Judge had given a complete direction on “trafficking”.
本庭不同意這個說法。其實，彭法官在解釋「販運」毒品時已經向陪審團指出，將毒品稀釋、包裝及出售就是「販運」。明顯地，這個指引是針對本案的案情而作出的。控方指該單位明顯地曾經被利用作為毒品稀釋及包裝中心。彭法官亦對陪審員指出，本案的焦點只是在於申請人有沒有「販運」的行為，而這一點的關鍵在於申請人有沒有「管有」涉案的毒品。他向陪審團提出控方的指稱，該單位內的毒品及其他物品放在當眼的地方，這只有兩個可能性。其一，這些物品是申請人自己的；其二，申請人同意別人存放這些物品在該單位內。在本案，陪審團是可以裁定該單位內的物品，包括毒品在內是在申請人「管有」下的。根據這些物品的性質，陪審團亦可以推斷申請人「管有」這些物品作為「販運」之用，因為先前彭法官已經向他們指出，將毒品稀釋、包裝及出售是屬於「販運」。既然本案涉及數量多及價值高的毒品，毒品又已經分別包裝，該單位亦存放了稀釋毒品的物品及量器，這些都是陪審團是可以依賴來作出「販運」的裁斷的證據，故此本庭認為彭法官已經作出了一個關於「販運」的完整指引。

In his direction, Deputy Judge Pang referred to the prosecution’s allegation that the applicant had agreed to safekeep the drugs for others for the purpose of “trafficking”.  The Judge explained to the jury that the alleged safekeeping agreement must be such as to constitute at law “joint possession” of the drugs by the applicant and others before the applicant could be found guilty.  The Judge had earlier on explained this legal concept of “joint possession”, citing, by way of illustration, an example of books being jointly used by two judges.  The ground of appeal raised on behalf of the applicant is that the Judge had not clearly stated that being “in joint possession” of the drugs with others was in itself insufficient to prove that the applicant was “in possession of dangerous drugs for the purpose of trafficking”.  In HKSAR v. Ng Hung Chi (CACC 186/2000), the appellant verbally admitted to the police upon arrest that she was only hiding the drugs for her husband.  In its judgment, this Court pointed out that the direction given by the trial judge conveyed an impression that, by storing drugs, the defendant already trafficked in them.  This Court considered the direction incomplete, because the fact a defendant stored drugs did not necessarily mean he was dealing with or trafficking in the drugs, since he might well be storing them for his own consumption.  This Court said that, to enable the jury to arrive at a verdict on the charge of “possessing dangerous drugs for the purpose of trafficking”, the judge must give further relevant directions to the jury, such as the appellant had reached an agreement with others so that the appellant or others would sell the drugs, or that the appellant would deliver the drugs according to instructions given by others, and so on.
彭法官在作出指引時曾經提出控方的聲稱指申請人是同意替人保管這些毒品作為「販運」用途。彭法官向陪審團解釋，同意替人保管的指稱是必須要符合申請人和別人「共同管有」的法律概念才可以判定他有罪。彭法官在先前已經就「共同管有」的概念作出了解釋。他採用的例子是兩位法官共同使用書本。但郭大律師提出的上訴理由是彭法官沒有清楚交代，單是與別人「共同管有」該批毒品也不足以裁定申請人是「管有危險藥品作販運之用」。在吳鴻志（譯音） (HKSAR v. Ng Hung Chi) CACC 186 of 2000 一案，上訴人在被拘捕時對警察作出了口頭招認，指出她只是替丈夫收藏毒品，本庭在判案書說原審法官的指引給人印象是被告貯存毒品已經是販運毒品，本庭認為這指引是不完整的，因為如果一個被告人只是貯存毒品，這並不等如他是處理或販運該毒品，因為他是可以貯存毒品作為自己吸食用途。本庭指出如果陪審團要裁定上訴人是「管有危險毒品作販運之用」，法官必須向陪審團進一步作出其他有關的指引，例如上訴人和其他的人士已經達成協議，上訴人或其他人士會出售這些毒品，或者上訴人會依照其他人士的指示去運送毒品等等。

The observation of this Court in Ng Hung Chi that the trial judge had to further explain to the jury the meaning of “trafficking” was obviously made in light of the facts of that case and of the direction given by the trial judge.  In the present case, there was no allegation that the defendant was storing the drugs for self-consumption.  In his direction, Deputy Judge Pang said that, even if the applicant was not the person who did the drug cutting and packaging, it would be impossible for him not to have knowledge, since the relevant items were found in conspicuous places; and since he had not taken any action, he must have been safekeeping the drugs for others for the purpose of trafficking.  This direction was in our view adequate and we see no need for the Judge to provide any further explanation.  The jury clearly understood the Judge was referring to the applicant having agreed to safekeep the drugs for others, who would cut, package and peddle the drugs.  This conduct is relevant to “joint possession” of drugs for the purpose of “trafficking”.
明顯地，本庭在吳鴻志要求原審法官需要再向陪審團解釋「販運」的定義是根據該案的案情及原審法官的指引而作出的。本案不涉及被告貯存毒品自用之說。彭法官在指引內說，就算申請人不是稀釋及包裝毒品的人，但由於有關的物品擺放在顯眼的地方，申請人是不可能不知情的，而他又沒有採取過任何行動，他肯定是替別人保管毒品以作販運用途。本庭認為彭法官的指引已經是足夠的，他是不需要再作進一步的解釋。陪審團是清楚明白他所指的是申請人同意替人保管毒品，讓別人進行稀釋、包裝及販賣。這行為涉及「共同管有」毒品作「販運」用途。

Mr Kwok submits that the written question raised by the jury, particularly its reference to the applicant not caring about the relevant items, indicates that the jury must have excluded the possibility that the applicant himself cut and packaged the drugs, and therefore Deputy Judge Pang should have elaborated on the issue of “trafficking”.  We have difficulty in accepting this argument.  The jury’s written question focused on “possession”, and the Judge had already clearly told them that if the applicant did not know that the items in the premises were drugs, he would not be “in possession” of them.  The written question had nothing to do with “trafficking”.
郭大律師指陪審團提出的書面問題，特別是有關申請人不去理會這些物品之說正已表示他們已經否定申請人自己稀釋及包裝毒品之可能性，所以彭法官需要在「販運」這議題上詳加解釋。本庭不同意這個說法，因為陪審團書面問題的重點是關於「管有」，而彭法官已經清楚地告訴他們如果申請人不知道該單位內的物品是毒品，申請人不是「管有」毒品。所以這問題和「販運」扯不上關係。

As a matter of fact, that the applicant safekept the drugs for others was nothing more than a possibility raised by the prosecution.  The applicant had never admitted that he was safekeeping the drugs for others.  His only defence was that he had no knowledge of the existence of the drugs.  As we have pointed out, even if the jury were of the view that the applicant was not safekeeping the drugs for others, they could still rely on the drug cutting and packaging evidence and conclude that the applicant himself was “in possession of the drugs for the purpose of trafficking”.  For this reason, even if it were true that Deputy Judge Pang had not further elaborated on “joint possession for the purpose of trafficking”, this would not have rendered the conviction unsafe and unsatisfactory.
其實，在本案申請人代其他人保管毒品只是控方提出的另一點可能性。申請人並沒有作出任何招認說是代人保管這些毒品。他唯一的答辯理由是不知道毒品的存在。如果陪審團認為申請人並非代他人保管毒品，正如本庭早前所說他們亦可以根據稀釋及包裝毒品的證據來裁斷申請人是自己「管有這些毒品及作為販運之用」。因此，就算彭法官對「共同管有作為販運之用」沒有再進一步詳加解釋的指稱屬實，亦不會影響定罪的穩妥及安全性。

Conclusion
總結

In the absence of a valid ground of appeal, the application for leave to appeal against conviction is dismissed.
申請人未能提出合理的上訴理由，故此本庭駁回不服定罪的上訴許可申請。

Ms Mary Sin, Senior Assistant Director of Public Prosecutions, for the respondent.
答辯人 ：由律政司冼佩霞高級助理刑事檢控專員代表。

Mr Eric Kwok, instructed by the Legal Aid Department, for the applicant.
申請人 ：由法律援助署委派郭棟明大律師代表。