Hon Yeung Acting CJHC (giving Reasons for Judgment of the Court):
高等法院署理首席法官楊振權頒發上訴法庭判案理由書：

Introduction
引言

The applicant (Chan Chau Lam) was charged with one count of unlawful trafficking in 21.52 g of powder containing 17.02 g of ketamine (commonly called “K chai”).  He pleaded not guilty and was on trial before District Judge Stanley Chan (the trial judge).
申請人（陳秋林）被控一項非法販運21.52克粉末，內含17.02克氯胺酮（俗稱「K仔」）罪。申請人否認控罪並在區域法院法官陳廣池（原審法官）席前受審。

On 3 October 2011, the trial judge convicted the applicant of the charge and sentenced him to 4 years’ imprisonment.
2011年10月3日，原審法官裁定申請人罪名成立，並判他入獄4年。

The applicant felt aggrieved by the conviction and sentence, and, represented by Mr Ken Ng of counsel, he sought leave from this court to appeal against conviction and/or sentence.  On 25 October 2012, the applicant’s legal representatives informed the court that the applicant abandoned the application for leave to appeal against sentence, which was dismissed accordingly.  This court was only required to deal with his application for leave to appeal against conviction.  At the end of the hearing, this court granted his application for leave to appeal against conviction and treated it as the appeal proper.  We allowed the appeal, quashed the conviction and set aside the sentence. However, the case was ordered to be remitted to the District Court for a retrial on the same charge before another judge.  These are our reasons.
申請人不服定罪及判刑，由伍健民大律師代表，要求本庭批准他就定罪及/或判刑上訴。2012年10月25日，申請人的代表律師通知法庭申請人放棄就判刑的上訴許可申請，而該申請亦因此被撤銷。本庭只需處理他就定罪的上訴許可申請。經聆訊後，本庭批准申請人就定罪提出的上訴許可申請，並視其申請為正式上訴。本庭裁定申請人上訴得直，並撤銷申請人的定罪及判刑，但本庭下令將案件發還區域法院就同一控罪由另一法官重審。以下是本庭的裁決理由。

Prosecution case
控方案情及證據

The scene of the crime was a residential unit in Yue Tai House, Yue Wan Estate, Chai Wan Road (the Residence).  On 7 April 2011, the police conducted an anti-narcotic operation in the vicinity of the Residence.  At around 8 pm, the applicant appeared outside the Residence.  He took out the key(s), and when he was just about to open the metal gate of that Residence, he was stopped by the police.  When the police showed him the search warrant, he became agitated and tried to run away but was subdued.  The applicant shouted loudly, “Release me, the police are hitting people,” and kept on struggling.  At that time, a woman inside the Residence opened the wooden door and asked what the matter was.  The applicant said loudly, “Mom, don’t open the door, these are the cops.”
案發現場是柴灣道漁灣邨漁泰樓一住宅（該住宅）。2011年4月7日，警員在該住宅附近進行反毒品行動。晚上約8時，當申請人在該住宅外出現，並取出鑰匙預備打開該住宅的鐵閘時，遭警員截停。警員向申請人出示搜查令時，申請人情緒激動，企圖逃跑，但遭制服。申請人大聲說：“放開我，警察打人”，並不停掙扎。當時該住宅有一女士開了木門，查問甚麼事，申請人大聲說：“阿媽，唔好開門，差人嚟”。

After that, the police searched and found on the applicant’s person two plastic bags containing dangerous drug and a transparent plastic bag containing 100 resealable plastic bags.  Under caution, the applicant admitted that the dangerous drug inside the two plastic bags was “K chai”, but when being asked why there were so many plastic bags, he did not respond.  Subsequently, the applicant further said under caution, “The two packets of ‘K chai’” are for my own consumption, give me a way to go.”
隨後警員在申請人身上搜出兩個膠袋，內有毒品及一個透明膠袋，內載有100個透明可再封口膠袋。警誡下，申請人承認兩個膠袋內的毒品是「K仔」，但被問及為何有那麼多膠袋時，申請人沒有回應。其後，申請人在警誡下再說：“兩包「K仔」係自己食，俾條路行”。

Later, after the applicant’s mother had opened the metal gate of the Residence, the police went in to search but no contraband was found.
其後，警員在申請人母親開啟該住宅的鐵閘後，進入該住宅搜查，但沒有發現任何違禁品。

After taking the applicant back to Chai Wan Police Station, the police showed him a post-record of what had happened at the scene for him to read it and requested him to copy a declaration.  They gave him a copy and then conducted a video interview with him.  After the interview, the police gave the applicant a DVD containing the record of interview.  During the interview, the applicant reiterated that the dangerous drug was for his own consumption and the plastic bags on his person were for bringing drugs outside more conveniently.  He indicated that he had bought the “K chai” in question for $1,800, and the quantity could last him for the best part of a month.  However, he refused to disclose the identity of the person(s) who had provided him the dangerous drug.
警員帶申請人返回柴灣警署後，將一份案發情況的補錄給申請人閱讀及要求他抄寫聲明，並將一份副本交了給他後便和他進行錄影會面。會面完畢後警員將一隻會面記錄光碟交了給申請人。會面時，申請人重申毒品是作自用而身上的膠袋是為了方便將毒品帶出街。申請人表示涉案的「K仔」是他花了1,800元購買，份量足夠他吸食大半個月，但他拒絕透露供應毒品給他的人之身分。

After the interview, a lawyer surnamed Wan visited the applicant and was allowed to meet him alone.  The police also gave the applicant a DVD containing the record of the interview.
會面完畢後，有一尹姓律師探望申請人並獲准和他單獨會面。警員亦有將一隻會面記錄光碟交了給申請人。

A number of police officers said in their testimonies that when the applicant was intercepted, he did struggle and shout loudly, “The cops are hitting people,” and told his mother not to open the door of the Residence.  They also confirmed that under caution, the applicant had said, “The two packets of ‘K chai’ are for my own consumption, give me a way to go.”  The police officers who had taken part in interviewing the applicant all claimed that the applicant was voluntary in having the video interview.
多名警員作供時都表示在被截查時，申請人有掙扎及高呼“差人打人”，並囑咐其母親不要開啟該住宅的門。他們亦確認在警誡下，申請人有說過“兩包「K仔」係自己食，俾條路行”。有份參與和申請人會面的警員都聲稱申請人是自願進行錄影會面的。

The applicant’s stance and evidence in relation to the confession
申請人就有關招認的立場及證據

On the special issue, the applicant said in his testimony that the police had framed him up.  He said the police had not found any dangerous drug whatsoever upon searching his person and they even treated him with violence.  The applicant said that after subduing him with violence, the police just took out the key(s) from his trousers pocket and forced their way into the Residence.
在特別事項，申請人作供時指遭警員陷害誣告。他指警員根本沒有在他身上搜取任何毒品，更對他施用暴力。申請人指警員暴力制服他後，從其褲袋取出鎖匙，強行進入該住宅。

The applicant also said that the police, having purported to have found some plastic bags and white-coloured powder inside the Residence, demanded that he should admit those things had been searched out from his person by them lest his family members be “disturbed”.  The applicant said that it was under the above circumstances that he agreed to cooperate with the police.  The applicant also said that he had not read the content of the post-record but he did, as instructed by the police, copy the post-record declaration and sign.
申請人亦指警員聲稱在該住宅內搜獲一些膠袋及白色粉末後要申請人承認該些物件是警員在他身上搜出的，否則會“搞”他的家人。申請人指是在上述情況下他同意和警方合作。申請人亦指雖然他沒有看過補錄的內容，但仍有按警員的指示抄寫補錄聲明及簽名。

The applicant said firmly that when the police demanded to conduct a video interview with him, they did indicate to him that he was only required to answer a few simple questions and then he could reply by saying “not clear”, “don’t know”, “don’t recall”, or “not willing to answer” or not giving any response, and the interview would end.  The applicant said firmly that he himself had not made any confession.
申請人力稱當警員要和他進行錄影會面時，有向他表示他只需回答幾條簡單問題，然後他可以說「不清楚」、「不知道」、「不記得」、「不願回答」或不作反應，會面就會終止。申請人力稱自己沒有作出過任何招認。

The applicant called his mother, Madam Leung, to testify.  Madam Leung also said that the police had threatened her, telling her not to obstruct them and to open the main door of the Residence, or otherwise, they would “arrest and take her back to the police station and seal off her flat”.
申請人有傳召其母親梁女士作供。梁女士亦指警員威嚇她不要阻礙他們及開啟該住宅的大門，否則會“拉她返差館，封她屋”。

The trial judge’s ruling on special issue
原審法官就特別事項的裁決

After hearing the evidence and submissions of both parties on the special issue, the trial judge made the following ruling orally:
經聆聽過雙方就特別事項的證據及陳述後，原審法官口頭上作出以下裁決：

“I have thoroughly examined the testimonies of various prosecution witnesses and also considered the testimonies of the defendant and his mother on the special issue in detail.  I have also examined the note-book in question, the transcript and document(s) related to the video interview.  I have also listened to the submissions given by both sides on the special issue.
“本席仔細審評各名控方證人嘅證供，亦都詳細考慮被告同埋被告母親就特別事項嘅證供，本席亦都審視有關嘅記事冊、錄影會面相關嘅謄本同埋文件，本席亦都聽取咗控辯雙方就特別事項呢個嘅陳詞。

I am satisfied of the evidence of the prosecution witnesses, and believe that the verbal confession was made at the scene in the circumstances as described by the prosecution witnesses and that this confession was made under caution by the defendant voluntarily.  I find that the words on page 37 of the note-book came into being in Room 620 where the defendant did sign for confirmation.  At Chaiwan Police Station, the defendant also wrote down the declaration for the post-recorded statement on the note-book and signed to confirm.  I also believe the prosecution witnesses regarding the circumstances under which the notice to persons in custody was issued, and that the defendant was voluntary in having the video interview.  I find that the prosecution has proved beyond all reasonable doubt the existence and voluntariness of the confession.” (emphasis added)
本席信納控方證人嘅證供，相信喺現場有關嘅口頭招認確實有如控方證人所供述嘅情況之下發生，而呢一個招認亦都喺警誡之下，由被告自願所作出。本席認為記事冊第37頁嘅字句係喺620室產生，被告亦都喺620室簽名作實。而喺柴灣警署，被告亦都喺記事冊上嘅補錄口供寫上聲明，簽名作實。本席亦都相信控方證人就被羈留人士通知書嘅簽發情況，而錄影會面係被告喺自願嘅情況之下進行。本席裁定控方係喺毫無合理疑點之下，證明咗招認嘅存在同埋其自願性。”（本庭強調）

In the ruling on special issue stated in his reasons for verdict, the trial judge found that the police officers’ testimonies were honest and reliable.  In his view, the police officers would not, in relation to the finding of the dangerous drug, complicate the matter or make up a story to frame up the applicant.
在其裁決理由書之特別事項的裁決部分，原審法官裁定警員的證供誠實可靠。原審法官認為警員不會就搜到毒品一事橫加枝節、虛構故事誣告申請人。

The trial judge did believe that, the applicant had said under caution, “These two packets of ‘K chai’ are for my own consumption, give me a way to go, okay?”
原審法官確信被警誡後，申請人有說過：“呢兩包「K仔」我係自己食，俾條路行下，得唔得”。

The trial judge said that in the content of the post-record in question, the most important confession was that the applicant had said, “The ‘K chai’ are for my own consumption,” and he had the chance to read the content of the post-record before appending his signature and writing down the declaration.  The trial judge emphasized that the applicant not only raised no objection to the content of the post-record, but made the same confession in the video interview conducted immediately afterwards.
原審法官指出在有關的補錄內容，最重要的招認是申請人說：“「K仔」是自己食”，而申請人是有機會閱讀過補錄內容後才簽名及寫下聲明。原審法官強調申請人不但沒有反對補錄內容，更隨即在錄影會面時再作出相同招認。

The trial judge did not accept the applicant’s grounds of objection in respect of the confession and the record of interview.
原審法官不接受申請人對招認和會面記錄的反對理由。

The trial judge stated clearly that he had adopted the double barrel approach in considering the whole case, and ruled that the applicant had in fact made the confession which was voluntary and the content was true.
原審法官表明是以雙管式（double barrel approach）考慮整宗案件，並裁定申請人確有作出招認，而招認是他自願作出，內容亦是真確的。

Therefore, the trial judge ruled that the post-record and the record of video interview should be admissible with full weight attached.
因此原審法官裁定有關補錄及錄影會面記錄都應呈堂為證並給予其充份比重。

The applicant’s defence
申請人的答辯理由

The applicant admitted that the dangerous drug in question was in his possession, but said that the drug had been found from the mattress on the bed in his room inside the Residence instead of on his person.  The applicant denied having made any confession, but in respect of the general issue, he did not give evidence to defend himself or call any witness.
申請人承認涉案毒品是在他管有下，但毒品是在該住宅內他房間床上的床褥找到，而非在他身上搜到。申請人否認有作過任何招認，但就一般事項，申請人沒有作供自辯，亦沒有傳召證人為他作供。

Verdict given by the trial judge
原審法官就案件的裁決

The trial judge rejected the applicant’s allegations that the dangerous drug in question had been found from the mattress in the applicant’s room inside the Residence and the plastic bags from the paper bag hung on the wall in the room.
原審法官否定申請人所指有關毒品是在該住宅內申請人房間之床褥找到，而膠袋則在房間掛在牆上的紙袋中找到的說法。

The trial judge reiterated that the applicant had not only confessed to the police officer who had arrested him, but also made the same confession in the video interview.  According to the post-record and the record of interview, the applicant admitted in clear terms that the “K chai” had been searched out from his person and was for his own consumption, and the plastic bags were for bringing small amount of dangerous drug outside for consumption more conveniently.  The applicant did not explain the source of the “K chai” but said that it was worth $1,800 and the quantity could last him for the best part of a month.
原審法官重申申請人不但有向拘捕他的警員作出招認，更在錄影會面時再作出相同招認。根據該些補錄及會面記錄，申請人明確承認有關「K仔」是在他身上搜出，是作自己吸食用，而膠袋則是方便帶少量毒品出外吸食。申請人沒有說明「K仔」的來源，但指其價值1,800元及其份量足以供他吸食大半個月。

The trial judge emphasized that at the material time the applicant was returning home instead of going out.  He also stressed that the applicant had divided the drug into two packets and was at the same time carrying over 100 plastic bags with him.
原審法官強調事發時，申請人正返家而非外出。原審法官亦強調申請人將毒品分開兩包，更同時攜帶100多個膠袋在身上。

The trial judge refused to accept that the dangerous drug in the applicant’s possession was for his own consumption and drew the inference that he had possessed the drugs for the purpose of unlawful trafficking.  Therefore, the applicant was convicted of the offence of unlawful trafficking in a dangerous drug.
原審法官否定申請人管有的毒品是作自己吸食用的說法，並推論他管有毒品是作非法販運用途。因此，原審法官裁定申請人非法販運毒品罪罪名成立。

Grounds of appeal
上訴理由

Mr Ken Ng, counsel for the applicant, advanced a number of grounds in support of the appeal.  He submitted that the trial judge, in dealing with the voluntariness of the applicant’s confession, should not have considered whether the confession had in fact been made, and instead should, on the presumption that such confession had been made, determine whether it had been made voluntarily and whether it should be admissible.
代表申請人的伍健民大律師提出多項上訴理由。伍大律師指原審法官在處理申請人的招認是否自願作出時，不應考慮申請人是否確有作出有關招認，而應假設他有作出過招認來決定招認是否申請人自願作出及應否呈堂為證。

Mr Ng contended that the trial judge, before hearing all the evidence, including the evidence that the defence would or would possibly put forward, had already found that the applicant’s confession did “exist” and that the content of the confession was true.  In doing so, he has been unfair to the applicant and violated the principle laid down in Thongjai & Another v The Queen [1997] HKLR 678.
伍健民大律師認為原審法官在沒有聽取全部證供，包括辯方會或可能會提出的證供前，便裁定申請人的招認的確“存在”，而其招認的內容亦是真確的做法，對申請人不公平，亦違反了Thongjai & Another v The Queen [1997] HKLR 678案所定下的原則。

It was submitted that when the trial judge was dealing with the voluntariness of the confession made by the applicant, he erred in also dealing with the truthfulness of its content at the same time.
伍大律師指原審法官在處理有關招認是否申請人自願作出時，同時處理招認內容的真確性，做法不妥。

Mr Ng also pointed out when the applicant indicated he admitted possession of dangerous drug, the trial judge said twice, “for rebuttal,” showing that the trial judge thought the applicant bore the burden to prove that he had not “trafficked in dangerous drug”, which contravened the principle of requiring the prosecution to prove the guilt of the applicant.
伍大律師亦指原審法官在申請人表示承認藏毒時，兩次說過“打rebuttal”，顯示原審法官認為申請人有舉證責任去證明他沒有“販毒”，和控方要證明申請人有罪的原則有抵觸。

In his written submission, Mr Ng asserted that during the video interview, the applicant had expressed clearly on a number of occasions that he did not want to answer questions but the police persisted in questioning him.  It was contended that the police conduct had infringed the applicant’s right to remain silent, and therefore the record of interview in question should not be admitted as evidence.
在其書面陳述，伍大律師力稱在錄影會面過程，申請人多次表明不想回答問題，但警員仍繼續向他發問。伍大律師認為警員的做法侵犯了申請人保持緘默的權利，故原審法官不應採納有關錄影記錄為證據。

Mr Ng submitted that the trial judge should not have rejected the applicant’s explanation of having the dangerous drug in question for his own consumption.  It was contended that basing on the facts of the case, the inference of “trafficking” drawn by the trial judge was not the only reasonable inference.
伍大律師認為原審法官不應拒絕接納申請人的解釋，指涉案毒品是作自己吸食用。他認為根據案情，原審法官作出的“販毒”推論並非是唯一合理的推論。

Mr Ng said that the trial judge, in considering whether the applicant had “trafficked in a dangerous drug”, had taken into account some unproved matters, including that the dangerous drug and the empty plastic bags were found inside the applicant’s room.  Mr Ng asserted that those were merely suggestions put forward by the defence in cross-examining prosecution witnesses and they were unproved, and hence the trial judge should not have based on them to draw any inference.
伍大律師指原審法官在考慮申請人是否有“販毒”時，考慮了一些未經證實的事項，包括毒品和空膠袋是在申請人房間內找到的。伍大律師力稱該些說法只是辯方在盤問控方證人時作出的指稱，但指稱未經證實，故原審法官根本不應依賴該些未經證實的事項來作出任何推論。

Discussion
討論

The prosecution case against the applicant was extraordinarily simple.  When the applicant was intercepted by the police near his residence, he struggled and tried to flee.  After subduing the applicant, the police searched him and found on his person the dangerous drug in question and a lot of plastic bags.  Under caution, the applicant admitted that the dangerous drug was “K chai”, but indicated that the drug was for his own consumption, and at the same time asked the police to “give him a way to go”.
控方針對申請人的案情異常簡單。警員指在申請人的家附近截查他時，申請人掙扎試圖逃跑。申請人被制服後，警員在他身上搜取涉案毒品及大量膠袋。警誡下，申請人承認毒品是「K仔」，但表示毒品作自己吸食用，並同時要求警員“俾條路行”。

The applicant copied the declaration onto the post-record of what had happened at the scene, and after that made the same confession in a video interview, and further indicated that he had bought the “K chai” in question for $1,800, which could last him for the best part of a month.  The applicant also indicated that the plastic bags were used for bringing drug on his person more conveniently.
申請人在案發情況的補錄文件內抄寫聲明後再在錄影會面作出相同的招認，更表示涉案「K仔」是他花了1,800元購入，足夠他吸食大半個月。申請人更表示膠袋是為了方便他將毒品攜帶在身上。

The applicant objected to the prosecution producing his confession as evidence on the ground that it was not made voluntarily.  The trial judge, after hearing evidence from both sides, ruled on the special issue.  In doing so, he stated that it was after he had thoroughly considered the testimonies of witnesses of both sides and examined the relevant documents that he found the applicant’s confession had been made voluntarily.  In making such ruling, the trial judge also found that the prosecution had proved beyond all reasonable doubt the “existence” and voluntariness of the confession.
申請人反對控方將其招認呈堂為證，理由是招認並非是自願作出。原審法官在聆聽過雙方的證據後，就特別事項作出裁決，當時原審法官表示有仔細考慮雙方證人的證供及審視過有關文件後，才裁定有關招認是申請人自願作出的。在作出該裁決時，原審法官同時認為控方已毫無合理疑點地證明招認的“存在”及其自願性。

In his written reasons for verdict, on the special issue, the trial judge found that the content of the applicant’s confession was true.
在其書面裁決理由書就特別事項裁決的部分，原審法官裁定申請人的招認內容是真確的。

At trial, it was by consent that the special issue was to be dealt with by way of the alternative procedure.  The trial judge also stated clearly that he had adopted the double barrel approach in considering the applicant’s confession.  By that time, both parties had already closed their respective cases on the special issue as well as the general issue.  At this stage, it was not unjustifiable for the trial judge to set out his reasons for finding the applicant’s confession voluntary and at the same time find that such confession was true.  However, we cannot ignore that when the trial judge was giving his verbal ruling on the special issue, he already stated clearly that he accepted the “existence” and voluntariness of the applicant’s confession.
原審時，控辯雙方同意在特別事項的案中案是以交替程序進行。原審法官亦表明他考慮申請人的招認時是採納雙管式（double barrel approach）方法。當時雙方已就特別事項和一般事項舉證完畢。在這個階段，原審法官列出他裁定申請人的招認是自願作出的理由及同時裁定招認是真確，是無可厚非的。但本庭不能忽視，原審法官就特別事項作出其口頭裁決時已表明他接受申請人招認的“存在”及其自願性。

In deciding whether an accused has made a confession voluntarily, the court only needs to deal with the voluntariness of such confession but not whether such confession was in fact made or whether the content is true.  The above point of law has been well established in many precedents. (See cases such as Thongjai, HKSAR v Chiu Kin Wah and Another CACC 244/2002 and HKSAR v Wong Kam-chan & Another CACC 142/2011)
在處理一名被告人的招認是否自願作出時，法庭只需處理招認的自願性而不應同時處理被告人是否確實曾作出過有關招認或招認內容是否真確。上述法律觀點已在多宗案例中確立。（見Thongjai案，香港特別行政區政府訴趙健華及另一人CACC 244/2002，HKSAR v Wong Kam-chan & Another CACC 142/2011等案）

In this case, the trial judge has obviously violated the principles laid down in cases such as Thongjai.  He, in determining whether the applicant had made the confession voluntarily, also ruled on whether such confession in fact “existed” and whether its content was true.  Mr Ira Lui representing the respondent also agreed that it was not safe or satisfactory for the trial judge to handle the matter in such way.
在本案，原審法官明顯違反了Thongjai等案定下的原則，在裁決申請人的招認是否自願作出時，同時就招認是否“存在”及招認內容的真確性作出裁決。代表答辯人的高級檢控官雷芷茗亦同意原審法官這個處理方式有欠穩妥。

This court reiterates that when a District Judge deals with the voluntariness of an accused’s confession, the judge should, on the assumption that the alleged confession was made, after hearing the evidence and submissions made by both sides on the special issue, only need to determine if the confession in question was made by the accused voluntarily, and should not at the same time determine if such confession in fact exists and if the content is true.  The questions of whether the confession was in fact made and whether its content is true should not be determined until both sides have closed their respective cases and finished their submissions on the charge.  The presiding judge needs to make it clear that the above decisions are made at different stages, and the trial judge should have avoided using what he called the double barrel approach for the avoidance of misunderstanding.
本庭重申，區域法院法官在處理一名被告人的招認是否自願作出時，應假設被告人的招認存在及在聆聽過控辯雙方就特別事項的證據及陳述後，只需裁定有關招認是否被告人自願作出，而不應同時處理有關招認是否存在及招認內容是否真確。有關招認是否存在及招認內容是否真確的裁決應在控辯雙方已就控罪提出全部證據及作出結案陳述後才作出。主審法官需表明上述的裁決是在不同階段作出，而為了避免誤會，原審法官應避免使用他所稱的雙管式（double barrel approach）方式。

Mr Ng’s contention that the trial judge had erred in imposing the burden of proof on the applicant was first based on the conversation between the trial judge and him when the applicant pleaded to the charge, which was as follows:
伍大律師指原審法官錯誤地將舉證責任放在申請人身上的說法，首先建基在申請人對控罪答辯時，他和原審法官的以下對答：

“Court Interpreter:  Do you plead guilty or not guilty?
“法庭傳譯主任：認罪？唔認㗎？

Accused:  Not guilty, but I admit possession.
被告人：唔認，但係我認藏有。

Mr Ng:  Yes, this is consistent with my instruction, Your Honour.
伍先生：係，呢個吻合我嘅指示，法官閣下。

Court:  Please speak up and say that once again.
官：請你大聲啲講一次。

Accused:  Deny trafficking and I admit possession.
被告人：唔認販運，我認藏有。

Court:  Speak up.
官：大聲啲講。

Accused:  I deny trafficking, but I admit possession.
被告人：我唔認販運嘅，但係我認藏有。

Court:  You admit possession, i.e. for rebuttal, this time?
官：你認藏有，即係rebuttal，今次？

Mr Ng:  As to the circumstances of the possession, they are different from the facts -- alleged by the prosecution.  I don’t know if the prosecution would still reply on the voir dire -- namely the statement, that is we would say that the drug…
伍先生：嗰個藏有嗰個情況呢，同控方係嗰個--所講個案情係唔同嘅，唔知控方會唔會仲倚賴嗰個案中案嗰--即係嗰個口供紙，即係我哋話毒...

Court:  This is not what the court has to deal with now, is it?  Now, what the court has to know is whether the defendant pleads guilty or not guilty to the charge of trafficking in a dangerous drug.
官：呢樣嘢唔係法庭而家要處理嘅情況，係咪？而家法庭要知道嘅話，就係被告就呢一個販運毒品罪承認定不承認吖嘛。

Mr Ng:  Right, he pleads not guilty.
伍先生：係，佢不承認。

Court:  In that case, the court will treat it as a plea of not guilty to the charge of trafficking in a dangerous drug, that is most correct, isn’t it?
官：因此嚟講嘅話，法庭就當係不承認呢一個販運毒品罪，咁就最正確喇，係咪？

Mr Ng:  Right, correct, yes.
伍先生：係，啱嘅，係。

Court:  That is a plea of not guilty, is that right?
官：即係不認罪，係咪？

Accused:  Right. ”
被告人：係。”

When counsel for the applicant made the final submission, the trial judge once again said, “What you admit is very often referred by us as so-called for rebuttal… … the defendant admits possession, and the prosecution does not accept such confession….”
在申請人代表大律師作出結案陳述時，原審法官再一次說：“你嘅招認好多時我哋所謂叫打rebuttal… …被告係承認佢有管有，控方不接納呢一個招認…。”

When the trial judge said that the applicant “admitted possession, i.e. for rebuttal” and “so-called for rebuttal”, he might possibly only refer to the applicant’s approach at that time, namely admitting possession of the drug but denying the allegation of “trafficking”.  However, this court cannot ignore that previously there was a presumption in the Dangerous Drug Ordinance, namely when an accused was in possession of a dangerous drug exceeding a certain quantity, the law would presume that he was unlawful trafficking in the drug, and the reversed onus of proof would be imposed on the accused who had to prove he was not “trafficking in the drug” so that he could be acquitted of the offence of “trafficking in a dangerous drug”.  This was generally described with the technical legal jargon “rebuttal”.  The above presumption has been repealed because of contravention of the Hong Kong Bill of Rights Ordinance, and hence the jargon “rebuttal” and the concept developed therefrom no longer exists, and it is not appropriate to refer to it in cases of “trafficking in a dangerous drug”.  In our view, it is inappropriate for the trial judge to use the jargon “rebuttal” twice in dealing with the case because the term would lead to misunderstanding and unnecessary dispute.  However, we have to point out that the trial judge had in his reasons for verdict stated clearly that the applicant bore no onus of proof, and that the court would not draw any inference unfavourable to him because he had elected not to give evidence.
原審法官指出申請人“認藏有，即係rebuttal”及“所謂叫打rebuttal”，可能只是指出當時申請人的取態，即他承認藏有毒品，但反駁“販運”的指控。但本庭不能忽視之前《危險藥物條例》曾有過一些假設，即當被告人管有超過某份量/數量的毒品時，法例會假設他是非法販運該些毒品，而舉證責任會轉至被告人身上，要他成功證明他並非是“販毒”，才能獲判“販毒”無罪。該些情況一般會以“rebuttal”這技術性的法律術語來形容。上述有關假設已因為抵觸《香港人權法案條例》而被廢除，故“rebuttal”這個術語和它引發的概念已不再存在，亦不適宜在“販毒”案件中提及。本庭認為原審法官在審理案件中兩次使用“rebuttal”這術語是不適宜的，原因是該術語會造成誤會，亦會引致無謂爭拗。但本庭亦指出原審法官在其裁決理由書明確指出申請人並沒有任何舉證責任，而法庭亦不會因為他選擇不作供而作出任何對他不利的推論。

We do not accept Mr Ng’s contention that the trial judge had erred in imposing the burden of proof on the applicant.
本庭不接納伍大律師的說法，指原審法官錯誤地將舉證責任放在申請人身上。

We have to point out that Mr Ng also represented the applicant at the trial.  Thus when the trial judge said “rebuttal”, if he thought that the judge might be wrong on the onus of proof, he should have raised it to the judge immediately instead of using such mistake in support of his application for leave to appeal.
本庭亦要指出伍大律師在原審時亦是申請人的代表大律師，當原審法官說出“rebuttal”時，如他認為原審法官在舉證問題上可能犯錯，他理應即時向原審法官指出其錯誤而不應在上訴階段才以該錯誤來支持上訴許可申請。

In the video interview, the police did make a post-record of the course of the applicant’s arrest, and the applicant indicated that he understood and agreed to the content of such post-record.  The police also issued a “notice to persons in police custody” to the applicant, and the applicant was clear of and understood the content of the notice.
在錄影會面時，警員有補錄拘捕申請人的過程，而申請人表示明白及同意補錄內容。警員更向申請人發給一份“被警方羈留的人士的通知”，而申請人對通知的內容是清楚和理解的。

Having been cautioned once again by the police, the applicant indicated that he understood and did not need the presence of a lawyer in answering questions asked by the police.  He has answered some of the questions, but for some, he indicated that he did not want to answer, and for certain questions, he replied that he did not remember or was not clear.
警員再一次警誡申請人後，申請人表示明白和無需律師陪同回答警員的發問，申請人亦有回答部分問題，但部分問題他表示不想回答，而對某些問題，申請人的回應是他不記得或不清楚。

It is obvious that the applicant has exercised his right and responded to the police questions in the way that he considered appropriate.  The applicant’s right to remain silent has not been infringed.  The ground of appeal suggesting that the applicant’s right to remain silent has been infringed is not accepted.
申請人明顯已行使其權利，就警員的提問作出他認為適當的回應。申請人的緘默權並沒有受到侵犯。本庭不接納申請人的緘默權有遭侵犯的上訴理由。

The trial judge rejected the applicant’s explanation that the drug and the plastic bags had in fact been found in his room.  In his reasons for verdict, he stated that “even if the drug and the empty plastic bags were found inside the defendant’s room, the court could still infer that the drug in question might possibly be used for the purpose of trafficking”.  The trial judge made an assumption which was not necessary and should not have been made.  However, it was not based on such an assumption that the trial judge convicted the applicant and the assumption had no bearing on whether the conviction was safe or satisfactory.  Therefore, the ground of appeal put forward by Mr Ng in this regard is not accepted.
原審法官拒絕接納申請人的說法，指毒品和膠袋是在他的房間內找到。原審法官在其裁決理由書中指“就算毒品和空膠袋真的在被告房間找到，法庭亦可以推論有關的毒品可能可以用作販運的用途”。原審法官只是作出一些假設。原審法官無需及不應作出該些假設，但原審法官並非根據假設而裁定申請人罪名成立，而該些假設亦不影響定罪的穩妥性。因此本庭亦不接受伍大律師就上述事項提出的上訴理由。

However, the trial judge has erred in dealing with the applicant’s confession.  If there was no such confession and the applicant’s claim of the drug having been searched out from his home was or might be true, then the finding that the applicant “trafficked in the drug” was not necessarily the only reasonable inference to be drawn.
但由於原審法官在處理申請人的招認時犯錯，假若沒有有關招認，而申請人聲稱毒品是在他家中搜出的說法是真的或可能是真的，作出申請人“販毒”的裁決不一定是唯一合理的推論。

In our view, in the above circumstances, the verdict of finding the applicant guilty of “trafficking in a dangerous drug” was unsafe and unsatisfactory.  Therefore we grant the applicant’s application for leave to appeal against conviction and treat it as the appeal proper.  The appeal is allowed.  Having regard to the background and the evidence in the case, we find that a retrial is necessary.  Therefore, the applicant’s conviction is quashed, and we order the case to be remitted to the District Court for a retrial on the same charge before another judge.
本庭認為在上述情況下，裁定申請人“販毒”罪罪名成立的決定是不穩妥的。因此，本庭批准申請人就定罪提出的上訴許可申請，並視其申請為正式上訴。本庭裁定申請人上訴得直。考慮到案件的背景及證據後，本庭認為案件需重審，因此本庭撤銷了針對申請人的定罪，並下令將案件發還區域法院就同一控罪由另一法官重審。

Having listened to the submissions from both sides, we order that the prosecution do pay the applicant costs of the application for leave to appeal.
經聆聽過雙方陳述後，本庭下令控方支付申請人的上訴許可申請訟費。

Ken Ng, instructed by Messrs Jesse HY Kwok & Co, for the Applicant.
答辯人：由律政司高級檢控官雷芷茗代表。

Ira Lui, Senior Public Prosecutor of the Department of Justice, for the Respondent.
申請人：由郭匡義律師行轉聘大律師伍健民代表。