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：

Application for leave to appeal
上訴許可申請

The 1st applicant in the present case has made the following applications:
本案的第一申請人作出以下的申請：

Application for leave to appeal out of time against conviction in respect of Charge 1;
就第一項控罪的定罪提出逾期上訴許可申請；

Application for leave to appeal against conviction in respect of Charge 2; and
就第二項控罪的定罪提出上訴許可申請；及

Application for leave to appeal out of time against sentence in respect of both charges.
就兩項控罪的刑罪提出逾期上訴許可的申請。

The 2nd applicant in this case has applied for leave to appeal against the sentence of 3 years and 10 months’ imprisonment in respect of Charge 2.
本案的第二申請人就第二項控罪的三年十個月監禁的刑期提出上訴許可申請。

Following the hearing on 20 April 2007, we dismissed all the applications of the 1st applicant. We allowed the 2nd applicant’s application and, treating the hearing of the application as the appeal, varied the sentence of 3 years and 10 months’ imprisonment to one of 3 years and 6 months’ imprisonment. Our reasons are as follows.
本庭經聆訊後在 2007 年 4 月 20 日拒絕第一申請人全部申請。本庭批准第二申請人提出的申請，視申請為正式上訴及將三年十個月監禁的刑期更改為三年六個月監禁。以下是本庭判案理由。

Charges
控罪

The 1st applicant was charged with two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong. Charge 1 alleged that the 1st applicant trafficked in 1.06 grammes of heroin hydrochloride; and Charge 2 alleged that the 1st and 2nd applicants trafficked in 9.13 grammes of heroin hydrochloride. The 2nd applicant was also charged with one count of trafficking in a dangerous drug (i.e. Charge 2).
本案的第一申請人被控的兩項控罪都是販運危險藥物罪名，違反香港法例第 134 章 《危險藥物條例》 第 4(1)(a) 及 (3) 條。第一項控罪是販運 1.06 克海洛英鹽酸鹽。第二項控罪是指第一及第二申請人販運 9.13克海洛英鹽酸鹽。第二申請人亦被控一項販運危險藥物罪（即第二項控罪）。

Prosecution case
控方案情

The facts show that on 13 October 2005 a team of police officers stopped the 1st applicant outside the entrance on the ground floor of No. 73 Lion Rock Road, Kowloon City (“the building”). At that time she had just emerged from the building. The police took her to the mezzanine floor of the building for investigation. She told the police that she and her uncle of the same clan, Lau Ngo Ming (the 2nd applicant), lived on the 2nd floor of the building. The police found from her handbag 13 packets of dangerous drug, which were subsequently verified to be 1.06 grammes of heroin hydrochloride (the subject of Charge 1). Under caution, the 1st applicant admitted to possessing the 13 packets and claimed that the dangerous drug was for her own consumption. Thereafter, the police further found from her handbag three keys, which were respectively to the main entrance of the building, the entrance of the flat on the 2nd floor and the door of Room D (“the room”) in the flat.
案情顯示一隊警員於2005 年 10 月 13 日在九龍城獅子石道 73 號(‘該大廈’)地下門外截查第一申請人，當時她剛從大廈走出來。警員把她帶到該大廈內的閣樓進行調查。第一申請人對警員說她和同鄉叔父柳岳明（即本案的第二申請人）居住在該大廈的 2 字樓。警員在第一申請人的手袋內搜出 13 包毒品，後證實為 1.06 克海洛英鹽酸鹽（即涉及第一項控罪的毒品）。第一申請人被警誡後承認該 13 包毒品是她管有的，並稱該批毒品是供她自己吸食的。之後，警員在第一申請人的手袋內再搜出三條鎖匙，他們分別可以開啟該大廈的大門，2 字樓單位的大門及該單位內 D室（‘該房間’）的房門。

The police took the 1st applicant to the 2nd floor and opened the main door of the flat on that floor with the key seized. The flat consisted of a number of rooms. The 1st applicant indicated to the police that she lived in one of the rooms. The police then opened the door of the room with another seized key and found the 2nd applicant inside. The 1st applicant told the police that the 2nd applicant was her uncle, Lau Ngo Ming. The police searched the room and found 60 packets of dangerous drug, comprising 22 white packets, 22 red packets and 16 packets in white plastic wrapping. This batch of dangerous drug was later verified to be 9.13 grammes of heroin hydrochloride (the subject of Charge 2). Under caution, the 2nd applicant said, “Ah Sir, the powders in the room were mine. Give me a chance, please.” Apart from the dangerous drug, the police also found from the room an electronic scale, two bundles of plastic sheets, red and white in colour respectively, and a tenancy agreement. The 2nd applicant was a tenant of the room.
警員將第一申請人帶到 2 字樓，並用搜獲的鎖匙開啟了2 字樓單位的大門，該單位內有多間房間。第一申請人向警員表示其中一間房間是她居住的。之後，警員再利用另一條搜獲的鎖匙打開了該房間的門，當時第二申請人在房間內，第一申請人向警員表示第二申請人是她的叔父柳岳明。警員在該房間內搜出 60 包毒品： 22 包是白色包裝、22 包是紅色包裝及 16 包是以白色膠紙包裝的。這批毒品後被證實為 9.13 克海洛英鹽酸鹽（即第二項控罪的毒品）。第二申請人被警誡後說：「阿Sir，間房啲粉係我，畀次機會我啦。」。警員在房間內除了搜到毒品外，還搜到一個電子磅、兩疊分別是紅色及白色的膠紙，以及一張租約。第二申請人是該房間的租客。

Defence case
答辯理由

Both applicants pleaded not guilty. The 1st applicant elected to give evidence at trial. She was a Mainlander and frequently came to Hong Kong to visit her relatives, including her mother and husband, on the strength of two-way permits. She stayed at her husband’s residence whenever she came here. She admitted that she was in possession of the keys at the time of her arrest because she frequently went to the room to clean it up and tidy it for the 2nd applicant. She denied living in the room. She admitted that she had taken dangerous drug in the room before the police stopped her for a check, and that the 13 packets of dangerous drug found on her were given to her by the 2nd applicant as a reward for cleaning up the room for him. She denied having told the police that she lived in the room with the 2nd applicant. She also denied that the dangerous drug and other items found in the room belonged to her. She said that she went to the room to do the cleanup once every two to three days. Her husband earned a monthly income of tens of thousands of dollars and gave her on average $5,000 each month. She admitted that the $5,000 that her husband gave her each month was insufficient to cover her expenses, so she cleaned up the room for the 2nd applicant in return for dangerous drug. She admitted that she knew the items found in the room were for the purpose of packaging dangerous drug, but denied assisting the 2nd applicant in packaging dangerous drug. She said her husband was not a drug addict and did not know that she was.
兩名申請人均否認控罪。第一申請人選擇作供自辯。她是一名內地居民，經常以雙程證來港探親，在香港的親人包括母親及丈夫。她每次來港時都住在丈夫的居所。她承認被警察拘捕時管有涉案的鎖匙，原因是她經常要到該房間替第二申請人打掃及執拾。她否認居住在該房間內。她承認被警員截查之前，她曾在該房間內吸食毒品。她承認在她身上被搜出的 13 包毒品是第二申請人給她作為替他打掃房間的報酬。她否認曾向警方透露過她是和第二申請人在該房間內一起居住。她亦否認警方在房間內搜獲的毒品及其他物品是屬於她的。第一申請人稱她每兩、三天就會到該房間打掃。她的丈夫月入數萬元，每月平均給她五千元。她承認每月從丈夫所得的五千元不敷應用，所以才替第二申請人打掃房間以換取毒品。她承認是知道該房間內的物品是用來包裝毒品的，但否認協助第二申請人包裝毒品。她指她的丈夫不是吸毒的，也不知道她吸食毒品。

The 2nd applicant said that the dangerous drug found in the room was for his own consumption. He admitted to trafficking in a dangerous drug but alleged that the quantity involved was confined to the 13 packets of dangerous drug found on the 1st applicant by the police.
第二申請人指該房間內的毒品是他用來自己吸食的。他承認販運毒品，但涉及的數量只是警方在第一申請人身上搜獲的 13 包毒品。

The 1st applicant’s convictions
第一申請人的定罪

After trial in the District Court before Deputy Judge Rickie Chan, the 1st applicant was convicted of both charges. Deputy Judge Chan rejected her defence in respect of Charge 1 that the 13 packets of dangerous drug were for her own consumption. He found that she was at the material time delivering the drug to someone. He had doubts about her bringing such a large quantity of dangerous drug home as she claimed that her husband was not a drug addict and that she did not want him to know she took drug.
經審訊後，區域法院暫委法官陳錦昌裁定第一申請人的兩項罪名成立。陳法官不接納第一申請人就第一項控罪的答辯。陳法官不接納該 13 包毒品是供第一申請人自己吸食之用，他認為第一申請人當時是正在將毒品運送給其他人。陳法官質疑第一申請人稱她的丈夫不是吸毒者，她亦不想丈夫知道她吸食毒品，卻將如此大量的毒品帶回家裡的做法。

As regards Charge 2, Deputy Judge Chan was of the view that, judging from the articles found in the room and the layout, the room was a small-scale drug packaging centre. He also found that the packaging appearance of the 13 packets of dangerous drug found on the 1st applicant was very similar to that of the dangerous drug found in the room. He concluded that the 1st applicant was one of the occupants of the room and had participated in the illegal drug trafficking activities in the room.
至於第二項控罪，陳法官認為根據該房間內的用品及擺設顯示該房間是一家小型毒品包裝中心，他亦認為在第一申請人身上搜出的 13 包毒品與房間內的毒品的包裝外型極為相似。陳法官裁定第一申請人是該房間的其中一名住客，她是有份參與在該房間內進行的毒品非法販運活動。

Sentence
刑期

On Charge 1, Deputy Judge Chan adopted a starting point of 18 months’ imprisonment and, on account of the 1st applicant’s plea to possession of the dangerous drug, reduced the term by 3 months, resulting in 15 months’ imprisonment. On Charge 2, Deputy Judge Chan adopted a starting point of 4 years’ imprisonment and, noting that she was a first-time offender and taking into account other mitigating factors, reduced the term by 6 months, resulting in 3½ years’ imprisonment. The two sentences were to run concurrently, making a total sentence of 3½ years’ imprisonment.
就第一項控罪陳法官以 18 個月監禁為量刑基準，由於第一申請人承認管有這批毒品，故給予她三個月的刑期扣減，第一項控罪的刑期最終為 15 個月監禁；而就第二項控罪，陳法官以四年監禁為量刑基準，他考慮到第一申請人是初次犯案，以及其他的求情原因，給予她 6 個月的刑期扣減，因此第二項控罪的刑期為三年半監禁。兩項刑期同期執行，總刑期為三年半監禁。

The 2nd applicant’s conviction and sentence
第二申請人的定罪及刑期

The 2nd applicant admitted to trafficking in a dangerous drug but disputed the quantity of the dangerous drug involved. Deputy Judge Chan therefore held an inquiry into the relevant facts, after which he ruled that the 2nd applicant had illegally trafficked in a dangerous drug the quantity of which was as specified in Charge 2 rather than the 13 packets of drugs found on the 1st applicant. He adopted 4½ years’ imprisonment as the starting point and, taking into account the 2nd applicant’s early plea to possession of the dangerous drug found in the room, reduced the term by 8 months, resulting in 3 years and 10 months’ imprisonment.
由於第二申請人承認販運危險藥物罪，但否認藥物的數量，故此陳法官要對案情進行研訊。經研訊後陳法官裁定第二申請人是非法販運第二項控罪所涉及的毒品數量，而不是警方從第一申請人身上搜出的 13 包毒品。陳法官以四年半監禁為量刑基準，但因第二申請人早已承認管有該房間內的毒品，而將刑期扣減八個月，最終刑期為三年零十個月監禁。

The 1st applicant’s applications
第一申請人的申請

The 1st applicant applied for leave to appeal against conviction in respect of Charge 2 and she was represented by Mr. Kenneth Ho of Counsel. Mr. Ho also applied on her behalf for leave to appeal out of time against her conviction in respect of Charge 1. She represented herself in her application for leave to appeal out of time against sentence in respect of both charges.
第一申請人就第二項控罪提出針對定罪的上訴許可申請，而該項申請是由何景文大律師作他的代表。何律師亦就第一項控罪中的定罪提出逾期上訴許可申請。第一申請人本人就兩項控罪的刑期提出逾期上訴許可申請。

Grounds of appeal
上訴理由

The grounds of appeal against convictions as advanced by the 1st applicant can be summarized as follows:
第一申請人就兩項定罪提出的上訴理由可以簡述如下：

First, Deputy Judge Chan had erroneously dealt with the burden of proof.
陳法官錯誤地處理舉證責任。

Second, Deputy Judge Chan had failed to give due weight to the 1st applicant’s good character.
陳法官沒有就第一申請人的良好品格給予適當的份量。

Third, Deputy Judge Chan had failed to analyze the facts of the case appropriately.
陳法官沒有對案情作出適當的分析。

Fourth, the inference drawn by Deputy Judge Chan was not the only irresistible inference.
陳法官所作的推論並非是唯一無可抗拒的推論。

Charge 1: overall evidence
第一項控罪：整體的證據

The first, third and fourth grounds of appeal stated above can be dealt with together. In considering whether the trial judge had erred in the burden of proof, analysis of facts and the drawing of inference, we must first of all consider the evidence of the case as a whole. A large quantity of dangerous drug was found to be stored in the room. The judge took the view that the room was in fact a small-scale drug packaging centre. The 1st applicant had just emerged from the building when she was arrested, and the packaging of the 13 packets of dangerous drug found on her was the same as that of the drugs stored in the room. In these circumstances, one of the reasonable inferences was that the 1st applicant was at the material time in the course of delivering dangerous drug from the room to some other person(s).
本庭認為法庭是可以一併處理上段的第一、三及四項上訴議題。在考慮陳法官是否在舉證、案情分析及作出的推論上犯上錯誤，本庭必須先考慮案件的整體證據。涉案的房間被發現存放着大量毒品，陳法官認為這個房間其實是一個小型的毒品包裝中心。第一申請人被拘捕時是剛從該大廈走出來，而從她身上搜出的 13 包毒品與房間內存放的毒品包裝是相同的。在這情況下，其中一項合理的推論就是第一申請人當時正在將毒品從該房間運送給其他人。

The 1st applicant’s defence on this charge, which the judge rejected, was that she was a drug addict and the 13 packets of drugs found on her were for her own consumption. In our view, the judge was justified in rejecting the defence. The greatest doubts harboured by the judge were about this: given the 1st applicant’s husband was not a drug addict and she did not want him to know that she was, why did she have to take the risk of bringing 13 packets of dangerous drug home? In other words, she simply failed to give a reasonable explanation as to why she had to bring 13 packets of dangerous drug home for use. It was her evidence that she could go to the 2nd applicant’s home to do the cleanup and take drug once every two to three days. If this was the case, why did she not go there every day to take drug but bring the drug home instead?
就這項控罪第一申請人的答辯是她是一名吸毒者，在她身上的 13  包毒品是她用來自己吸食的。陳法官不接納她的答辯理由。本庭認為陳法官拒絕接納第一申請人的答辯理由是有根據的，其中最令陳法官質疑的就是：既然第一申請人的丈夫不是一名吸毒者，而第一申請人亦不想他知道她吸食毒品，她為甚麼要冒險帶 13 包毒品回家呢？換句話說，申請人根本沒有合理地解釋為何將 13 包毒品帶回家使用。根據她的供詞，她既然可以每兩、三天便到第二申請人的家裡打掃及吸食毒品，為何她不每天都到那裡吸食毒品而要將毒品帶回家呢？

In our view, once the trial judge rejected the 1st applicant’s defence, then on the facts the only reasonable inference that could be drawn was that the 1st applicant was at the material time trafficking in the dangerous drug in question. We do not think that the trial judge had erred in any way regarding the burden of proof, analysis of evidence or the drawing of inference.
本庭認為若陳法官拒絕接納第一申請人的答辯理由，根據案情唯一可作出的合理推斷就是第一申請人當時是正在販運有關的毒品。本庭不認為陳法官在舉證或者在證據分析或者在推論上犯上任何錯誤。

Good character
良好品格

The legal principle concerning a defendant’s good character can be briefly stated as follows: a professional judge sitting alone without a jury is not required to state in his reasons for verdict that, in considering the defendant’s propensity to commit the offence and the credibility of his defence, due weight should be given to his clear record and hence good character. Unless there is indication that the trial judge failed to consider the defendant’s good character or give it due weight, the appellant court will act upon the basis that the trial judge had properly dealt with the issue, see R. v. Wong Chi Wei and another [1994] 1 HKCLR 94, R. v. Fok Tin Yau [1995] 1 HKCLR 351, HKSAR v. Li Yun Cheung CACC 307/1997. In the present case, Deputy Judge Chan had already stated that the 1st applicant had a clear record, and it was unnecessary for him to go into the issue of good character.
有關被告人良好品格的法律原則可以簡述如下：一名專業法官處理非陪審團的案件是不需要在判案理由書內說明，由於被告人是沒有刑事記錄，是一名品格良好的人士，故此在考慮他是否有可能干犯有關罪行及他答辯的可信性時應給予適當的份量。除非有相反的情況顯示原審法官沒有考慮被告人良好品格或給予適當的份量，否則上訴法庭是會接受原審法官已經適當地處理了這議題，見 ：R. v. Wong Chi Wei and another [1994] 1 HKCLR 94 [黃志偉（譯音）]，R. v. Fok Tin Yau [1995] 1 HKCLR 351 [霍天佑（譯音）]，HKSAR v. Li Yun Cheung [李容詳（譯音）] CACC 307/1997。在本案陳法官已經說明第一申請人無刑事記錄，他是無須著墨於良好品格的議題。

With regard to Charge 1 against the 1st applicant, the trial judge made a finding of fact in which we do not see any error. The application in respect of the conviction on Charge 1 is accordingly dismissed.
就第一申請人被控的第一項控罪，陳法官作出了一項事實的裁決。本庭看不到有任何錯誤之處，故此本庭駁回針對第一項控罪的定罪申請。

Charge 2
第二項控罪

Turning to Charge 2, the trial judge considered that the 1st applicant had knowledge of the dangerous drug being stored in the room. He accepted the police evidence that the 1st applicant had said that she and the 2nd applicant lived in the room together, which also showed that she had connection with the drug in the room. The judge did not accept that the drug found on the 1st applicant were for her own consumption and therefore held that she was at the material time trafficking in the drug which had been processed in the room. In our view, the judge was entitled to find, on the basis of the said facts, that the 1st applicant was also involved in the trafficking of the dangerous drug found in the room.
至於第二項控罪，陳法官認為第一申請人對該房間內存放着毒品一事是知情的，他接納警員的證供指第一申請人曾經說過她和第二申請人一同居住在該房間內，這亦顯示她與該房間內的毒品是有關連的。陳法官不接納在第一申請人身上被搜出的毒品是她自用之說，因而裁定她當時是正在販運在該房間內被處理過的有關毒品。本庭認為陳法官是可以根據上述的案情裁定第一申請人亦是涉及販運在該房間內的毒品的。

Mr. Ho for the 1st applicant submitted that there was no evidence to show that she actually lived in the room, and he complained that the trial judge had not properly considered the relevant evidence when he made that particular finding. In our view, the crux of the present case was not whether the 1st applicant lived in the room, but was the fact that the key found on her could open the door to the room and that she told the police that she lived there, from which it was inferred that she had a close connection with the drug in the room. We see nothing improper in the judge’s inference or finding. The 1st applicant’s application in respect of the conviction on Charge 2 is accordingly dismissed.
代表第一申請人的何大律師指本案並無任何證據顯示第一申請人的確住在該房間內，他認為陳法官在作出這個裁決時並沒有適當地考慮到有關的證據。本庭認為本案的重點並非是第一申請人是否在該房間居住，而是在她身上搜獲可以開啟該房間的鎖匙及她曾對警員說她是在該房間居住，因而推斷出她和該房間內的毒品有密切的關係。本庭亦看不到陳法官的推論及裁決有任何不妥之處。故此，本庭駁回第一申請人針對第二項控罪定罪的申請。

The 1st applicant’s sentence
第一申請人的刑期

The trial judge adopted a very lenient approach in sentencing the 1st applicant. According to the sentencing guidelines in R. v. Lau Tak Ming [1990] 2 HKLRD 370, the 1st applicant should have been sentenced to 4½ years’ imprisonment just for the 9.13 grammes of heroin hydrochloride in Charge 2. We therefore dismiss her application in respect of the sentences for both charges.
陳法官就第一申請人的刑期其實已作出了極寬鬆的處理。根據 R. v. Lau Tak Ming （劉德明[譯音]） [1990] 2 HKLRD 370 一案的量刑指引，單以第二項控罪 9.13 克海洛英鹽酸鹽，第一申請人就應該被判四年半監禁。因此本庭駁回第一申請人針對刑期的申請。

The 2nd applicant’s application for leave to appeal against sentence
第二申請人針對刑期的上訴許可申請

Although Mr. Kevin Chan, Counsel for the 2nd applicant, had previously disputed the quantity of dangerous drug involved in Charge 2, he accepted at the hearing of the application that Charge 2 involved 9.13 grammes of heroin hydrochloride and that a term of 4½ years’ imprisonment was an appropriate sentence. His only complaint was that the discount of 15% given by the Deputy Judge was insufficient.
雖然代表第二申請人的陳世傑大律師曾經就第二項控罪毒品的份量提出爭議，但在本申請聆訊時他接納第二項控罪的毒品份量是 9.13 克海洛英鹽酸鹽，並且接納四年半監禁是適當的刑期。他提出唯一的爭議是陳法官給予 15% 的刑期扣減太少。

Although Deputy Judge Chan explained in his reasons for judgment that the inquiry conducted by him was with regard to the quantity of dangerous drug, the substantive issue in Charge 2 was that the 2nd applicant had only admitted to possessing but not trafficking in the drug. That the 2nd applicant admitted to possession of drug would serve to shorten the trial and this should in our view be encouraged. The court should give him a discount of more than 15%. In our judgment, the appropriate discount should be in the region of 20%, see HKSAR v. Tong Kim Ching, CACC 481/2001 and HKSAR v. Gurung Tikaram, CACC 532/2003. In our view, the appropriate sentence after discount should be 3 years and 6 months’ imprisonment. We therefore allow the 2nd applicant’s application for leave to appeal against sentence and, treating the hearing of the application as the appeal, vary the sentence to one of 3 years and 6 months’ imprisonment.
雖然陳法官在判案理由書內解釋他展開案情研訊程序是基於毒品的數量，但實質上第二項控罪的爭議點是第二申請人就該項控罪只承認管有毒品，而不承認販運毒品罪。第二申請人承認管有毒品是會縮短審訊的時間，本庭認為他這樣做是值得鼓勵的，法庭應該給予他高於 15% 的刑期扣減。本庭認為本案適當的刑期扣減應該是約 20%，見：HKSAR v. Tong Kim Ching [唐劍清（譯音）]，CACC 481/2001 及 HKSAR v. Gurung Tikaram，CACC 532/2003。本庭認為經扣減後適當的刑期應該是三年六個月監禁，故此本庭批准第二申請人針對刑期的上訴許可申請，視申請為正式上訴及將刑期更改為三年為六個月監禁。

Mr. Liu Yuen Ming, Senior Government Counsel, for the Respondent.
答辯人：由律政司高級政府律師廖遠明代表。

Mr. Kenneth Ho, instructed by YC Lee, Pang & Kwok, for the 1st Applicant (re application for leave to appeal against conviction).
第一申請人：由李宇祥，彭錦輝，郭威，葉澤深律師事務所轉聘何京文大律師代表處理針對定罪上訴許可申請。

1st Applicant in person (re application for leave to appeal against sentence).
第一申請人親自處理針對刑期上訴許可申請。

Mr. Kevin Chan, assigned by the Director of Legal Aid, for the 2nd Applicant.
第二申請人：由法律援助署委派陳世傑大律師代表。