Hon Yeung Ag CJHC (giving the 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書：

Introduction
引言

The appellant, Cheung Ho Kit, was charged with one count of trafficking in dangerous drugs (the “trafficking” offence). He pleaded not guilty and stood trial in the District Court before HH Judge Lo.
上訴人（張浩傑）被控一項販運危險藥物罪（“販毒”罪）。他否認控罪，並在區域法院法官勞潔儀席前受審。

On 23 May 2018, the appellant was found guilty and was sentenced to 6 years and 11 months’ imprisonment. Having been granted leave by a single Justice of Appeal, the appellant now applied by counsel, Mr Andy Hung and Mr Marco Li, for leave to appeal against conviction and/or sentence out of time.
2018年5月23日，上訴人被裁定罪名成立，並被判處入獄6年11個月。上訴人不服定罪及判刑，經上訴法庭單一法官批准後，現由孔慶碩和李煒鍵兩位大律師代表提出申請，要求獲准就定罪及/或判刑逾期上訴。

Prosecution case and evidence
控方案情及證據

The prosecution alleged that shortly before midnight on 21 June 2017, the appellant was stopped and searched outside No 16B Jordan Road because he was acting in a suspicious manner. Upon search, the police officer found the dangerous drugs involved in the case, namely 0.7 grammes of solid containing 0.43 grammes of cocaine and 23.9 grammes of a crystallised solid containing 9.96 grammes of the dangerous drug “ice” from the appellant’s backpack. The dangerous drugs were inside a marker pen.
控方指上訴人在2017年6月21日晚上近午夜時分，因形跡可疑而被警員在佐敦道16號B外截查。警員在上訴人的背包搜出涉案的毒品，即0.7克固體，內含0.43克可卡因及23.9克晶狀固體，內含9.96克“冰毒”。該些毒品是放在一支箱頭筆內。

Under caution, the appellant admitted that the dangerous drugs involved were bought for his own consumption. The police officer alleged that the appellant agreed to attend a video interview conducted by the police in the absence of a lawyer. During the interview, the appellant said he was a casual cleaning worker earning $600 - $700 a day, but he could make only $4,000 – $5,000 a month. The appellant alleged that the day before the incident, he telephoned his friend Ken to purchase the dangerous drug “ice”. On the night of the incident, the appellant went to a park on Hillwood Road upon the instructions of Ken to buy the drugs involved at $4,000 from an Indian/Pakistani man. The appellant alleged that when he was stopped and searched by the police, he was about to walk along Hillwood Road towards Nathan Road in order to take bus no 118 home. The appellant alleged that he had taken the dangerous drug “ice” for 6 years.
警誡下，上訴人承認購買涉案毒品作自用。警員指上訴人同意在無需律師陪同下和警員進行錄影會面。會面期間，上訴人表示自己任職清潔散工，日薪600-700元，但每月只可賺取4,000-5,000元。上訴人指案發前一天以電話聯絡朋友Ken購買“冰毒”，而案發當天晚上按Ken的指示前往山林道的公園，並以4,000元從一名印巴籍男子購買涉案毒品。上訴人指被警員截查時，他正打算沿山林道步行前往彌敦道乘坐118號巴士回家。上訴人指自己吸食“冰毒”已有6年。

The police officer who arrested and cautioned the appellant confirmed the course of the arrest of the appellant and pointed out that what the appellant had said under caution at the scene had been recorded in his notebook. Later, he also made a post-record of what happened at the scene including what was said by the appellant. The police officer pointed out that the appellant not only had signed to confirm that the post-record was correct, he also made the declaration in the notebook as instructed and signed in confirmation.
拘捕及警誡上訴人的警員確認拘捕上訴人的經過，並指出在現場有將上訴人在警誡下的說話記錄在其記事冊內，而事後亦有將現場的案發經過，包括上訴人說過的話作出補錄。該名警員指出上訴人不但有簽名確認補錄內容正確，更有按指示在記事冊內寫下聲明並簽名作實。

The appellant was taken back to his residence in Chai Wan by the police for a house search once but nothing was found. The police alleged that when they handled the appellant during the detention process, he indicated that he understood and he made no requests or complaints.
上訴人曾被警員帶返其柴灣的居所搜查，但沒有任何發現。有警員表示在處理上訴人被羈留的過程中，上訴人表示明白，但沒有要求，亦沒有投訴。

The prosecution and defence agreed that the dangerous drug “ice” involved (23.9 grammes of mixture, $343 per gramme) was valued at HK$8,198.00, while the cocaine involved (0.7 grammes of mixture, $847 per gramme) was valued at HK$593.
控辯雙方同意涉案“冰毒”（23.9克混合劑，每克343元）價值為港幣8,198元，而涉案可卡因（0.7克混合劑，每克847元）價值為港幣593元。

Both parties also agreed that according to the expert opinion of Dr Mak Kai Lok, the average daily consumption of the dangerous drug “ice” per addict was 0.3 grammes, while the average daily consumption of cocaine per addict was 0.2 grammes. Therefore, 0.43 grammes of cocaine would last for 2.15 days, while 9.96 grammes of the dangerous drug “ice” would last for 33.2 days.
雙方亦同意根據專家麥棨諾醫生的意見，吸食“冰毒”的人的每日平均使用量為0.3克，吸食可卡因的人的每日平均使用量為0.2克。因此0.43克可卡因足以使用2.15天，而9.96克“冰毒”則足以使用33.2天。

Defence’s position and evidence
辯方立場及證據

The defence case was a total denial of the accusations of the prosecution. The defence alleged that the appellant did not know why the marker pen containing the dangerous drugs involved was inside his backpack. The defence pointed out that as the appellant had a hearing impairment, he could not hear the police officer arrest and caution him for the offence of “trafficking in dangerous drugs”.
辯方全盤否認控方的指控。辯方指上訴人不知道為何其背包會有涉案載有毒品的箱頭筆。辯方指上訴人弱聽，故聽不到警員以“販毒”罪名拘捕和警誡他。

The defence also denied that the appellant had made any confession. The defence said the signatures in the police notebook were not appended by the appellant and the police officer had never explained the contents concerned to the appellant.
辯方亦否認上訴人有作出過任何招認。辯方指警員記事冊內的簽名不是由上訴人簽署的，而警員亦沒有向上訴人解釋有關內容。

The defence alleged that the police threatened the appellant during the house search, and offered him cigarettes to induce him to read out the written statements during the video interview. The defence even said the police had indicated to the appellant that if he confessed, he would only be charged with “possession of dangerous drugs” instead of “trafficking in dangerous drugs”, and gave him instructions at the same time on how to answer the questions during the video interview.
辯方指警員曾在搜查上訴人的居所期間威嚇上訴人，亦有以請他食煙來誘使他在錄影會面時讀出已寫下的事項。辯方更指警員有向上訴人表示如他承認，則只會控告他“藏毒”，而非“販毒”，並同時指示他在錄影會面時如何回答問題。

The defence said the appellant was unaware of his right to refuse a video interview or to engage a lawyer to represent him. Regarding his replies during the video interview, some of them were given according to the instructions of the police, and others were given according to the contents of the police notebook.
辯方指上訴人不知道有權不參與錄影會面或聘請律師代表他，而他在錄影會面時的回應，部分是按警員給他的指示，部分是按警員記事冊的內容作出。

When giving evidence on the special issue, the appellant had set out his background. He said at the time in question, he had made arrangements to give some clothes to his friend, Miss Chan, but he was intercepted by the police when he was on his way to meet her. The appellant said at that time he was holding a plastic bag containing clothes, but the marker pen concerned did not belong to him. He did not know why the marker pen was found in the exterior side pocket of his backpack.
在特別事項作供時，上訴人有列出自己的背景。他指案發時約了朋友陳小姐將衣服拿給她，但途中被警員截停。上訴人指當時他手持的膠袋內有衣服，而涉案的箱頭筆不是他的，他表示不知悉為何該支箱頭筆會在他的背包外側袋出現。

The appellant alleged that he had a hearing impairment, and therefore could not hear what the police officer said when he was arrested and cautioned. He stressed that he had never admitted that the dangerous drug “ice” inside the marker pen was for his own use. He also had never signed the statement concerned in the notebook. He had reservations about the authenticity of his signatures in the notebook.
上訴人指自己弱聽，故不能聽到警員拘捕和警誡他時的說話。他力稱沒有承認過箱頭筆內的“冰毒”是他作自用，亦沒有簽署過記事冊內有關的表述。他對記事冊內所顯示他的簽名的真確性有保留。

The appellant also described to the court how he was threatened, forced and induced by the police.
上訴人亦有就他指遭警員威逼利誘的過程向法庭表述。

The trial process
審訊過程

The trial commenced on 1 March 2018. The appellant was then represented by Mr Lawrence T H Law, counsel instructed by the solicitors assigned by the Legal Aid Department (the LAD). On the third day of the trial, i.e. 5 March 2018, when the appellant gave evidence on the special issue and was cross-examined by the prosecution, the appellant expressed discontent with the legal team provided by the LAD and requested a replacement. In the end, the case was adjourned to 13 March 2018 for mention.
審訊在2018年3月1日開始，當時上訴人是由法律援助署（法援署）委派的律師事務所轉聘羅達雄大律師代表。當審訊進行到第三天，即2018年3月5日，而當上訴人正在就特別事項作供及被控方盤問時，上訴人表示不滿意法援署提供給他的律師團隊，且要求更換。結果，審訊押後至2018年3月13日進行提訊。

On the day of mention, a new legal team including counsel, Mr James YK Tse, was assigned by the LAD. They told the court that they would take instructions from the appellant after he had finished his evidence on the special issue. The appellant continued to be cross-examined on the special issue. Meanwhile, the appellant indicated that the person appearing in the video interview might not necessarily be him.
在提訊當天，由法援署委派代表上訴人的新律師團隊，包括謝英權大律師。他們向法庭表示會等候上訴人完成特別事項的作供後才向他提取指示，上訴人就特別事項繼續接受盤問，期間上訴人表示有關錄影會面記錄出現的人不一定是他。

Upon the completion of the defence case on the special issue, Mr Tse told the court that the appellant had reservations about the authenticity of the Legal Aid Certificate and asked the LAD for clarification. The trial judge made it clear to the appellant that further delay of the case would not be allowed. In the end, the appellant indicated that he was willing to accept the new legal team including Mr Tse as his legal representatives.
當辯方完成特別事項的案情後，謝大律師向法庭表示上訴人對法援署證書的真實性有懷疑，並要求向法援署澄清。原審法官向上訴人表明案件不容再拖延。結果上訴人表示願意接受新的律師團隊，包括謝大律師代表他。

In respect of the special issue, Mr Tse made submissions to the court to challenge the admissibility of the confession of the appellant. However, in the end, the trial judge found that the appellant’s confession was made voluntarily and it was admitted as prosecution evidence. Mr Tse accepted that there was sufficient prima facie evidence, therefore he did not make any halfway submissions.
謝大律師就特別事項向法庭作出陳述，並反對法庭採納上訴人的“招認”為證。但原審法官最終裁定上訴人的“招認”是自願作出，故接納該些招認為控方證據。謝大律師接納有足夠表面證據，故沒有作出中段陳詞。

On 6 April 2018, i.e. the 5th day of the trial, the appellant decided to refuse the legal representatives assigned to him by the LAD and he indicated that he would act in person. The appellant confirmed that he had received all the documents and he was ready to act in person.
2018年4月6日，即審訊的第五天，上訴人決定取消法援署委派的律師團隊代表他，並表示會親自行事。上訴人確認已收到所有文件，亦準備好作自辯。

In the end, the trial judge found that there was a prima facie case against the appellant and she explained his rights to him . The appellant elected not to give evidence or call any witnesses.
結果，原審法官裁定針對上訴人控罪的表面證據成立後，向上訴人解釋其權利。上訴人選擇不作供，亦不傳召任何證人。

After that, counsel for the prosecution made a closing speech before the trial judge. Prosecution counsel only repeated the prosecution evidence including the course of the arrest of the appellant by the police and the appellant’s “confession”. Prosecution counsel pointed out that neither dangerous drugs nor smoking paraphernalia was found during the search of the appellant’s residence, and he also stressed that the appellant appeared to be “in good fettle, natural and fluent” during the video interview conducted by the police. Prosecution counsel stressed that the total market value of the dangerous drugs involved was more than two times his monthly income.
其後，代表控方的大律師向原審法官作出結案陳詞。控方大律師只是覆述控方的證據，包括警員拘捕上訴人的經過及上訴人的“招認”。控方大律師指出搜查上訴人的居所時沒有發現任何毒品或吸食工具，亦強調上訴人和警員進行錄影會面時的表現“有精神，自然流暢”。控方大律師強調涉案毒品的總巿值是上訴人的月薪兩倍以上。

Prosecution counsel reiterated the prosecution’s position that the appellant was in possession of dangerous drugs for the purpose of “trafficking” and urged the court to find him guilty of the charge of “trafficking in dangerous drugs”.
控方大律師重申其立場，即上訴人管有涉案毒品是作“販運”用，並懇請原審法官裁定上訴人“販毒”罪罪成。

The appellant submitted in his closing speech that he was unemployed and the drugs involved did not belong to him. He also said he would not put valuable dangerous drugs in the exterior side pocket of his backpack. The appellant stressed that he could not hear any caution administered by the police officer and did not notice the  police searching his backpack. He even questioned how the police knew about the dangerous drugs inside the marker pen.
上訴人在結案陳詞時表示自己沒有工作，而涉案毒品並非是他的。上訴人亦指他不會將值錢的毒品放在背包的外側袋。上訴人強調他聽不到警員有警誡，亦沒有留意警員搜查他的背包的過程，更質疑為何警員會知道箱頭筆內有毒品。

Findings of the trial judge
原審法官的裁決

The trial judge found that the appellant had made the oral “admission” and voluntarily signed the notebook containing the post-recorded “admission” to confirm its contents. The trial judge also found that the appellant had attended the video interview voluntarily.
原審法官裁定上訴人有作出過口頭“招認”，亦有自願在補錄其“招認”的記事冊上簽名確認其內容。原審法官亦裁定上訴人自願參與錄影會面。

The trial judge was of the view that the prosecution witnesses were honest and reliable. Based on their evidence, she made the following findings:
原審法官認定控方證人都是誠實可靠的證人，並根據他們的證供裁定：

The marker pen concerned was found inside the left side pocket of the appellant’s backpack, and the pen contained the dangerous drugs involved;
涉案的箱頭筆在上訴人揹着的背包左側袋內找到，而筆內載有涉案的毒品；

The appellant admitted under caution that the dangerous drugs were for his own consumption;
上訴人在警誡下承認毒品是作自用；

The appellant voluntarily signed the police notebook with the post-record about the arrest; and
上訴人自願在警員補錄拘捕過程的記事冊內簽名；及

The appellant voluntarily attended the video interview.
上訴人自願參與錄影會面。

The trial judge pointed out that according to the expert evidence agreed by both parties, the dangerous drug “ice” involved would last for 33.2 days, while the cocaine would last for 2.15 days. The trial judge stressed that the total retail value of the drugs involved was HK$8,791. It was impossible for the appellant to buy the drugs at $4,000 and it was even more impossible to get the cocaine at the same time.
原審法官指出根據雙方同意的專家證人證供，涉案的“冰毒”足夠33.2天使用，而可卡因則足夠2.15天使用。原審法官強調涉案毒品的零售總值是港幣8,791元，而上訴人不可能以4,000元購買該些毒品，更不可能同時取得可卡因。

The trial judge was also of the view that the appellant, with regard to his income, could not afford the dangerous drugs involved. Taking into account factors such as the quantity and types of the dangerous drugs, other items found by the police upon search, the value of the dangerous drugs, the appellant’s income, as well as the time and place of the arrest of the appellant, the trial judge drew the inference that the appellant was in possession of the dangerous drugs for the purpose of trafficking. Hence, the trial judge found the appellant guilty as charged.
原審法官亦認為以上訴人的收入，他不能負擔涉案的毒品。原審法官考慮到毒品的數量、品種、警員搜獲的其他物品、毒品的價值、上訴人的收入及上訴人被拘捕的時間和地點等因素，推論上訴人管有涉案的毒品是作販運用。因此，原審法官裁定上訴人罪名成立。

In paragraph 112 of the Reasons for Verdict, the trial judge  stated as follows：
原審法官在其裁決理由書第112段有以下表述：

“In addition, as the defence did not give evidence on the general issue, the prosecution should not make any closing speech. As a professional judge in this case, I would discard the brief prosecution closing speech entirely and exclud it from consideration. Hence, no injustice would be done to the defendant.”
“另由於辯方未有在一般事項作供，控方不應作結案陳詞，故在此案中，作為專業的法官本席完全摒棄控方簡短的結案陳詞，不作任何的考慮，故不應對被告導致任何不公。”

Grounds of appeal
上訴理由

Mr Hung, counsel representing the appellant, put forward three grounds of appeal. He said the fact that the trial judge had allowed the prosecution to make a closing speech when the unrepresented appellant did not give evidence was a material irregularity and rendered the trial unfair.
代表上訴人的孔大律師提出三點上訴理由。他指原審法官在上訴人沒有律師代表，亦沒有作供的情況下，容許控方作結案陳詞，構成重大不當，令審訊不公。

Mr Hung also pointed out that the other expert evidence from the prosecution after completion of the trial was very much contradictory to the facts agreed by both parties during the trial, which also rendered the trial unfair and the conviction unsafe. Mr Hung asked the court to admit fresh evidence to strengthen his position. In the appellant’s notice of motion, he asked the court to admit fresh evidence including five reports prepared by four doctors, but in the end Mr Hung only asked this court to admit the report prepared by Dr Lam Ming on 4 July 2018, and the relevant part of the report was:
孔大律師亦指控方在審訊後出現的其他專家證據和原審時控辯雙方同意的案情有重大矛盾，亦導致審訊不公及定罪不穩妥。孔大律師要求法庭採納一些新證據來強化他的立場。在其動議通知書，上訴人要求法庭採納的新證據有四名醫生撰寫的五份報告，但孔大律師最終只要求本庭採納林明醫生在2018年7月4日撰寫的報告，該報告的有關內容為：

Mr Hung was of the view that if the trial judge had had the chance to consider the fresh evidence, she might not necessarily have drawn the inference that the appellant was in possession of the dangerous drugs for the purpose of trafficking.
孔大律師認為如原審法官有機會考慮該些新證據，她不一定會推論上訴人管有涉案毒品作販運用途。

Discussion
討論

In a criminal trial, if an unrepresented defendant acts in person, the usual convention is that the prosecution has no right to make a closing speech on the facts because there is a difference in the ability to express oneself between a prosecution counsel who has received professional training and an unrepresented defendant. The speech by a professionally trained counsel will clearly be more convincing than that by an unrepresented defendant. One of the possible ways to redress this considerable imbalance in ability and to ensure that the defendant receives a fair trial is to forbid the prosecution from make a closing speech. However, prosecution counsel is allowed to make a closing speech to the court on the law. (see HKSAR v Zhuo Yaying [2016] 3 HKLRD 916).
在刑事案件審訊中，如一名被告人沒有律師代表，親自行事，一般的慣例是控方無權就事實作出結案陳詞，原因是有專業訓練的檢控律師和一名無律師代表的被告人的表達能力有分別。受過專業訓練的律師的陳述較無律師代表的被告人的陳述必然較具說服力。為了平衡這種強弱懸殊的現象，及確保審訊公平，可能的方法之一是不讓控方向法庭作出結案陳詞，但控方律師是可以就法律議題向法庭作出結案陳詞（見香港特別行政區訴卓亞營 [2016] 3 HKLRD 916案）。

The Court of Appeal confirmed the aforesaid principle in HKSAR v Tso Kin Shing [2014] 3 HKLRD 721. In paragraph 5.7 of the judgment, the Court of Appeal stated clearly that:
上訴法庭在香港特別行政區訴曹建成 [2014] 3 HKLRD 721案確認上述原則。上訴法庭在其判案書第5.7段表明：

“The prosecution has the right to make a closing speech when a legally represented defendant has himself given evidence but has not called any other witness.  However, where a defendant is not legally represented and calls no witnesses, then even though he gives evidence for himself, the prosecution is not entitled to make a closing speech.”
“一名有律師代表的被告人，在他自己作證但沒有傳召其他證人的情況下，控方是有權作出結案陳詞，但一名沒有律師代表的被告人就算作證自辯，但沒有傳召證人，控方是無權作出結案陳詞。”

In fact, the Court of Appeal made the same ruling in 1980 in the case R v Man Ching Ip & Others [1980] HKLR 890. At that time, the Court of Appeal made it clear that:
事實上，上訴法庭在1980年在R v Man Ching Ip & Others [1980] HKLR 890案已作出過相同裁決。上訴法庭當時表明：

The aforesaid principle applies not only to criminal trials by jury in the High Court, but also criminal trials by a judge sitting alone in the District Court (see Zhuo Yaying and HKSAR v Leung Chun Kit Brandon (2018) 21 HKCFAR 298, para 43 of the judgment).
上述原則不單適用於高等法院涉及陪審團的刑事案件審訊，亦適用於區域法院由單一法官審理的刑事案件（見卓亞營案及HKSAR v Leung Chun Kit Brandon (2018) 21 HKCFAR 298判案書第43段）。

Hence, the fact that the trial judge allowed the prosecution to make a closing speech was an irregularity. While the trial judge had made it clear that she would not take into account the prosecution’s closing speech, that was not sufficient to cure such irregularity.
因此，原審法官容許控方作出結案陳詞的做法是不合規則。原審法官表明她對控方的結案陳詞不作任何考慮，不足以糾正該不合規則的做法。

However, the aforesaid irregularity does not mean that the Court of Appeal must quash the appellant’s conviction. In Tso Kin Shing, the Court of Appeal after taking into account the cases of R v Paul [2013] 2 Cr App R 282 and R v Pink (Ronald) [1971] 1 QB 508 held that:
但上述不合規則的做法不表示上訴法庭必須撤銷針對上訴人的有罪裁決。上訴法庭在曹建成案經考慮R v Paul [2013] 2 Cr App R 282案及R v Pink (Ronald) [1971] 1 QB 508案後作出以下裁決：

“Generally speaking, non-compliance of this principle will result in the conviction being quashed.  That said, the court does not take a mechanical approach and will still have to consider whether to apply the proviso by considering whether any miscarriage of justice has occurred in the case.”
“一般來說若果這個原則沒有被遵從，法庭是會撤銷定罪，但同時由於法庭並不是機械式地審案，法庭仍須考慮但書，審查案件實際上是沒有出現司法不公的情況。”

In R v Cojan [2015] 2 Cr App R 20, Hallett LJ made the following analysis in respect of the issue in paragraph 12 of the judgment:
在R v Cojan [2015] 2 Cr App R 20案，Hallett LJ法官在判案書第12段就有關議題有以下分析：

In R v Stovell [2006] EWCA Crim 27, the Court of Appeal  expressed reservations as to whether non-compliance with the principle would result in the conviction being quashed. In paragraph 36 of the judgment, Rose LJ said:
上訴法庭在R v Stovell [2006] EWCA Crim 27案對違反有關原則是否必然導致一個定罪裁決必須撤銷有保留。Rose LJ在判案書第36段表示：

In Leung Chun Kit Brandon, the Court of Final Appeal was concerned about the defendant’s abuse of the rule by discharging his legal representatives. The Court also made it clear that although non-compliance with the rule by the prosecution making a closing speech when the defendant was unrepresented constituted a material irregularity, it would not necessarily result in the quashing of the conviction (see paras 69 and 74 of the judgment).
終審法院在Leung Chun Kit Brandon案對被告人以取消其法律代表方式來濫用有關規則表示關注，亦表明在被告人沒有律師代表下，控方不應作出結案陳詞這規則被違反構成重大不當，這不表示有關的定罪裁決必須撤銷（見判案書第69及74段）。

In this case, the defendant had been legally represented throughout the prosecution case. The defendant’s position was that he did not know why the dangerous drugs involved were found in the exterior side pocket of his backpack. He said he had never made any admission. What the police officer said in relation to the course of his arrest and admission made by him was a fabrication. He even said the suspect in the video interview was not him.
在本案的整個控方舉證過程中，上訴人都有律師代表，上訴人的立場是他不知悉涉案毒品為何會在他的背包外側袋出現，他亦指他沒有作出過任何招認，而警員就拘捕他的過程和指他作出招認的說法都是虛構的。他更指錄影會面記錄所顯示的疑人並非是他。

The appellant gave evidence in the special issue hearing. Guided by his counsel, the appellant set out his position and how he was arrested and handled by the police in detail. Counsel for the appellant also presented to the court the grounds of objection to the admissibility of the appellant’s confession as evidence.
上訴人有在特別事項聆訊過程中作供。在大律師引導下，上訴人有詳細列出他的立場及警員拘捕他和處理他的過程。上訴人的代表大律師亦有向法庭提出他反對上訴人的招認為證的理據。

Only after counsel for the appellant had made submissions and admitted that there was sufficient prima facie evidence, the appellant decided to act in person.
上訴人是在其代表大律師作出陳述及接納有足夠表面證據後才決定親自行事。

In fact, when prosecution counsel made his closing speech to the court, he only set out briefly the prosecution case and evidence. Prosecution counsel stressed that the appellant appeared to be in good fettle during the video interview and his speech was natural and fluent. Prosecution counsel also pointed out to the trial judge that no paraphernalia for smoking dangerous drugs was found in the appellant’s residence. Given his financial status, the appellant was in possession of the dangerous drugs for the purpose of trafficking. It was submitted in the prosecution’s closing speech that any reasonable and right-minded person would not find this difficult to imagine.
事實上，控方大律師向法庭作出結案陳詞時，只是簡單列出控方證據及說法。控方大律師有強調上訴人在錄影會面時的表現是有精神，說話自然流暢。控方大律師亦有向原審法官指出以上訴人的居所沒有任何吸毒工具，及以他的經濟狀況而言，上訴人管有涉案毒品是作販運用。控方的結案陳詞內容是任何合理及思想正常的人都不難想像到的。

The facts of the present case were very simple. First, the trial judge had to decide whether the dangerous drugs involved were found on searching the appellant’s backpack. If the said dangerous drugs were in the appellant’s possession, the question was whether he was in possession of the dangerous drugs for the purpose of trafficking.
本案的案情十分簡單。原審法官先要決定涉案毒品是否從上訴人的背包搜出，及如涉案毒品是在上訴人的管有下，他是否管有該些毒品作販運用。

We should point out that the appellant’s allegation of the set-up by the police officers with evidence planted on him was not supported by objective evidence. His allegation of the police forging his signatures in the police notebook and using threats, inducement and force to extort a false confession from him was not convincing at all. Mr Hung raised some points that might be favourable to the appellant, and they were matters that the trial judge must have known.
本庭應指出上訴人指警員插贓嫁禍的說法沒有任何客觀證據支持。他指警員在記事冊冒簽他的簽名，及威逼利誘，要他作出虛假的招認亦不具任何說服力。孔大律師提出可能對上訴人有利的說法，原審法官亦必然知悉。

In our view, the trial process, the issues in the case and the closing speech made by the prosecution counsel would not cause any miscarriage of justice or render the conviction of the appellant unsafe.
本庭認為以本案的審訊過程、案件的爭議及控方大律師作出的結案陳詞而言，是不會導致司法不公，更不會影響針對上訴人的定罪裁決的穩妥性。

Dr Mak’s evidence regarding the average daily consumption of cocaine and the dangerous drug “ice” by an abuser was admitted by the prosecution and defence. According to section 65C of the Criminal Procedure Ordinance, Cap 221 of the Laws of Hong Kong, it was “conclusive evidence”.
麥醫生指吸食可卡因和“冰毒”者的每日平均使用量的證言是控辯雙方同意的事實，而根據香港法例第221章《刑事訴訟程序條例》第65C條，該些雙方同意的事實是“不可推翻的證據”。

Different experts, relying on factors such as the background, number of years of drug taking, and social environment of different drug addicts, may have different views on the average daily consumption by an addict. According to the information provided by Mr Hung, there was expert opinion that the daily consumption a chronic abuser of the dangerous drug “ice” was 0.25 to 1 gramme; while the average daily consumption of a new user was 0.05 to 0.1 grammes, and the average daily consumption of a regular user was 0.1 to 0.5 grammes. There was other expert opinion that according to a study in China, the daily consumption of the dangerous drug “ice” by an abuser was 0.1 to 2 grammes, while the average daily consumption was 0.13 grammes.
不同專家根據不同吸毒者的背景、吸毒年資、社會環境等因素對吸毒者的每日平均使用量可能會有分別。孔大律師提供的資料顯示，有專家認為一名長期濫藥者的每天“冰毒”服用量是0.25克至1克；而新的使用者的每日平均使用劑量是0.05克至0.1克及定期使用者的每日平均使用量為0.1克至0.5克；亦有專家根據在中國做的調查，濫藥者的每天“冰毒”使用量是0.1克至2克，而每日平均使用量是0.13克。

The fresh evidence that Mr Hung asked the court to admit was limited to the report of Dr Lam Ming dated 4 July 2018. In the report by Dr Lam dated 25 April 2013, it was stated that chronic abusers of the dangerous drug “ice” commonly used ¼ to one stroke (i.e. 250 mg to 1 gramme a day). However, in his report dated 4 July 2018, i.e. the fresh evidence that Mr Hung asked the court to admit, it was stated that chronic abusers of the dangerous drug “ice” commonly used ¼ to two strokes (i.e. 250 mg to 2 grammes a day). Dr Lam did not explain in his report the basis or grounds for changing his position.
孔大律師要求本庭採納的新證據局限在林明醫生日期為2018年7月4日撰寫的報告。林醫生在2013年4月25日撰寫的報告指長期吸食“冰毒”的人士一般會服用1/4至1劑的分量（即每日250毫克至1克）。但他在2018年7月4日撰寫的報告（即孔大律師要求本庭採納的新證據則指長期吸食“冰毒”的人士一般會服用1/4至兩劑的分量（即每日250毫克至2克）。林醫生在報告中並沒有解釋他改變立場的基礎或理據。

Furthermore, based on the views of Dr Mak, both parties admitted that the average daily consumption of an abuser of the dangerous drug “ice” was 0.3 grammes. Where the average daily consumption was 0.3 grammes, it meant that some abusers would consume more than 0.3 grammes, while other abusers would consume less. During the trial, both prosecution and defence were concerned about the average consumption of abusers, rather than the level above or below, or the dosages for “chronic”, “experienced” abusers or other abusers who had particularly strong tolerance.
再者，雙方根據麥醫生的意見而作出同意的事實是吸食“冰毒”的人的每日平均使用量為0.3克。平均使用量是0.3克，表明有些人的使用量較0.3克為多，有些人為少。原審時，控辯雙方關注的事項是吸毒者的平均使用量，而非較多或較少的使用量，更非是某些“長期”、“資深”或耐藥性特強的吸毒者服用毒品的劑量。

If the expert reports from the doctors were read properly, one would find the contents of the reports and the facts admitted by both parties are not in conflict.
若有適當地理解有關的醫生專家報告，其內容和控辯雙方同意的事實根本沒有衝突。

If the position of the appellant was that he was a chronic or experienced drug addict whose daily consumption of the dangerous drug “ice” far exceeded the average daily amount of 0.3 grammes as agreed by him, he should have called evidence to support his position. In fact, since the appellant elected not to give evidence on the general issue, there was no admissible evidence showing that he was a drug addict, let alone a “chronic” or “experienced” drug addict. The appellant indicated during the video interview that he had consumed the dangerous drug “ice” for six years, but that was insufficient to prove that he was a chronic, experienced drug addict who had a strong tolerance and therefore his daily consumption of drugs could be as much as 2 grammes.
假若上訴人的立場是他是一名長期或資深的吸毒者，其每天吸食“冰毒”的分量遠超他同意的每天平均0.3克，他理應傳召證據支持其立場。事實上，上訴人在一般事項選擇不作供，因此沒有可採納的證據支持上訴人是一名吸毒者，更遑論是一名“長期”或“資深”的吸毒者。上訴人在錄影會面時表示自己吸食“冰毒”已有6年，亦不足以證明他是一名長期、資深或耐藥性強的吸毒者，故每天服用毒品的劑量可高達2克。

We agree with the position of Mr Simon CY Kwong, SPP, representing the respondent. The fresh evidence the appellant asked the court to admit was neither relevant to the present case nor in conflict with the facts admitted by the prosecution and defence.
本庭認同答辯人代表江祖胤高級檢控官的立場。上訴人要求本庭採納的新證據和本案無關，亦和控辯雙方同意的事實沒有衝突。

The appellant’s application asking the court to admit fresh evidence fails to satisfy the conditions laid down by the Court of Final Appeal in Mohammad Mahabobur Rahman v HKSAR (2010) 13 HKCFAR 20. Accordingly, we dismiss the appellant’s application to adduce fresh evidence and find that the grounds of appeal related to the issue cannot be sustained.
上訴人要求本庭採納新證據的申請，並不符合終審法院在Mohammad Mahabobur Rahman v HKSAR (2010) 13 HKCFAR 20案定下法庭採納新證據須符合的條件。因此，本庭駁回上訴人提出的呈交新證據的申請，並同時裁定和該議題有關的上訴理據不成立。

The appellant admitted that he was earning $4,000 to $5,000 a month. He should not be able to afford the dangerous drugs involved worth over $8,000. He was living in Chai Wan but he was on a street in Tsim Sha Tsui at midnight. Having regard to  factors such as the appellant’s means, the value of the dangerous drugs involved, the fact that the appellant was in possession of the dangerous drug “ice” and a small quantity of cocaine at the same time, and the time and place of the appellant’s arrest, plus the fact that the appellant had neither given evidence nor called witnesses to explain, overturn or rebut the allegations of the prosecution, we are of the view that the trial judge was entitled to draw the inference that the appellant was in possession of the dangerous drugs concerned for the purpose of trafficking.
上訴人承認自己每月收入4,000-5,000元。他理應不能負擔價值超過8,000元的涉案毒品。他居住柴灣，卻在午夜時分在尖沙咀街頭出現。本庭亦認為以上訴人的經濟狀況、涉案毒品的價值、上訴人同時管有“冰毒”和少量“可卡因”、上訴人被拘捕的時間和地點等等因素，加上上訴人沒有作供或傳召證人作供以解釋、推翻或反駁控方的指控，原審法官是有權推論上訴人管有涉案毒品作販運用途。

We are of the view that the guilty verdict against the appellant for “trafficking in dangerous drugs” was safe. Accordingly, we dismiss the appellant’s application to appeal out of time against conviction.
本庭認為針對上訴人“販毒”的有罪裁決是穩妥的。因此，本庭駁回上訴人就定罪提出的逾期上訴申請。

Sentence
判刑

Mr Li did not dispute the starting point adopted by the trial judge. He only stated that the trial judge did not take into account the fact that some of the dangerous drugs concerned were for the appellant’s own consumption and did not give him a discount in sentence. Mr Li also stated that the trial judge did not give the appellant sufficient assistance on this issue.
李大律師對原審法官採納的量刑基準不表異議。他只是指原審法官沒有考慮部分涉案毒品是上訴人作自用，而給予他刑期扣減。李大律師亦指原審法官在該議題上沒有給予上訴人足夠的協助。

The prosecution’s position was that the appellant was in possession of the dangerous drugs for the purpose of trafficking. The appellant, after his arrest, did tell the police the dangerous drugs concerned were all for his own consumption. The prosecution clearly did not accept this contention.
控方的立場是上訴人管有涉案毒品作販運用途。上訴人被拘捕後有向警員表示涉案毒品全作自用。控方明顯不接納該說法。

At trial, the appellant’s position was that he did not make any admission. He claimed that the prosecution not only planted evidence on him but also falsely alleged that he had made a confession.
原審時，上訴人的立場更是他根本沒有作出過任何招認。他指控方不但插贓嫁禍他，更誣告他有作出過招認。

After the trial judge had found that there was a prima facie case against the appellant, she explained his rights to him. The appellant elected not to give evidence or call any witnesses. He was found guilty. In mitigation, the appellant did not submit that he was a drug addict, or that part or all of the dangerous drugs involved were for his own consumption.
原審法官裁定針對上訴人控罪的表面證據成立後，有向上訴人解釋其權利。上訴人選擇不作供，而被裁定罪名成立後亦不傳召任何證人作供。上訴人亦沒有指自己是一名吸毒者，及沒有指涉案毒品是全部或部分作自用為其求情理由。

Hence, under the above circumstances, the trial judge had no basis to treat any part, let alone a considerable part, of the dangerous drugs involved as for the appellant’s own use.
因此，在上述情況下，原審法官沒有任何基礎視涉案毒品任何部分，更遑論極可觀部分作為上訴人自用。

Before passing sentence, the trial judge reminded the appellant time and again to set out his mitigating factors. With regard to the background of the present case, it would be impractical to require the trial judge to assist the appellant and make it clear to him that he might submit in mitigation that a considerable part of the dangerous drugs was for his own use. We must reiterate that the appellant had never raised any contention of this sort, and there was insufficient information to show that the appellant had any basis to make this contention in mitigation. It is not the duty of the court to make suggestions or give hints, or to make up grounds for the reduction in sentence for a defendant who is found guilty.
判刑前，原審法官有多次提點上訴人列出其求情理由。以本案的背景而言，要求原審法官協助上訴人，向他表明他是可以聲稱涉案毒品有極可觀部分作自用為求情理由是不切實際的。本庭必須強調，上訴人從來沒有提出該說法，亦沒有足夠資料顯示上訴人有基礎提出上述求情理由。法庭是沒有責任向一名被定罪的被告人建議、提點或編造一些可能構成減刑的理由。

There is no basis at all to support Mr Li’s application in respect of the sentence. Accordingly, we also dismiss the appellant’s application to appeal out of time against sentence and affirm the original sentence.
李大律師針對判刑的申請完全沒有基礎支持。因此，本庭亦駁回上訴人就判刑提出的逾期上訴申請，維持原判。

Andy H S Hung and Marco W K Li, instructed by Kenneth Lam solicitors assigned by Director of Legal Aid, for the appellant.
答辯人：由律政司高級檢控官江祖胤代表。

Simon C Y Kwong, SPP of the Department of Justice, for the respondent.
上訴人：由法律援助署委派林洋鋐律師行轉聘大律師孔慶碩及大律師李煒鍵代表。