The applicant was indicted of one count 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.  The applicant denied the charge and was convicted on 7 June 2013 by a majority of 5 to 2 after a jury trial before Deputy High Court Judge Yau (as he then was) (the trial judge) in the Court of First Instance.  On 26 July 2013, she was sentenced by the trial judge to 19 years and 9 months’ imprisonment.
申請人被控一項販運危險藥物罪，違反香港法例第134章《危險藥物條例》第4(1)(a) 及 (3) 條。申請人否認控罪並在高等法院原訟法庭暫委法官邱智立（原審法官）會同陪審團席前受審。2013 年6月7日，經審訊後，申請人被陪審團以5：2的大比數裁定罪名成立。2013年7 月26日，原審法官判處申請人入獄19年9個月。

On 1 August 2013, the applicant filed an application for leave to appeal against conviction.  This Court refused the application after a hearing on 28 January 2015.  The reasons for judgment are as follows.
申請人不服定罪，在2013年8月1日提出上訴許可申請要求獲准就定罪上訴。2015年1月28日，經聆訊後，本庭拒絕申請，現頒下判案理由書。

Prosecution Case
控方案情

The Prosecution alleged that on 10 July 2012, at the Hong Kong International Airport, Chek Lap Kok, the New Territories, Hong Kong, the applicant unlawfully trafficked in 1,377.40 grammes of a mixture containing 543.94 grammes of heroin hydrochloride.  The Prosecution further alleged that the applicant knowingly brought a piece of luggage concealing 7 packets of dangerous drugs into the territory.  The Prosecution called nine prosecution witnesses to testify at trial and the prosecution case can be summarized as follows.
控罪指申請人於2012年7月10日，在香港新界赤鱲角香港國際機場，非法販運危險藥物，即內含543.94克海洛英鹽酸鹽的1,377.40克混合劑。控方指申請人是在知情下攜帶藏有七包危險藥物的行李入境。審訊時，控方傳召九名證人作證。控方案情可扼述如下。

On 10 July 2012, the applicant arrived at the Hong Kong International Airport onboard Dragonair Flight KA111 from Dhaka, the capital city of Bangladesh.  She was going to take a connecting Dragonair Flight KA864 to fly on to Pudong, Shanghai the same day.  Upon   reaching transfer area E2 on Level 5 of the airport at around 8:45 am the same day, the applicant was intercepted for investigation by Customs Officer 6275 Choi Yee Man, the 1st Prosecution Witness (PW1).  At that time, the applicant was carrying a snake skin pattern handbag and the suitcase she checked-in at Dhaka was retrieved from baggage conveyor belt no. 6 in the Customs Immigration Hall in the presence of PW1 and Senior Customs Officer 8928 Shum Tse Keung.
2012年7月10日，申請人乘坐港龍航空公司KA111航班由孟加拉首都達卡飛抵香港國際機場，並會即日轉乘另一港龍航空公司KA864航班，飛往上海浦東。同日早上約八時四十五分，申請人抵達機場5樓E2轉機處時，被海關關員6275蔡倚雯（控方第一證人）截停和調查。當時申請人手挽一個蛇紋手袋。申請人在控方第一證人及高級海關關員8928岑子強陪同下，在海關入境大堂6 號行李帶提取一個她在達卡寄艙的行李箱。

Thereafter, PW1 and Senior Customs Officer 8928 took the applicant and the suitcase to a search room.  After enquiries, PW1 learnt that the applicant went to Dhaka for travelling.  The snake skin pattern handbag was bought in there.  The clothes insides her suitcase was also bought in there.  PW1 then examined the applicant’s snake skin pattern handbag and her suitcase with an X-ray detector and found them suspicious.  She opened the compartments of the snake skin pattern handbag and found a brown coloured bag inside.  She cut the bag open with a cutter for about 1.5 cm, white powder could be seen therein.  PW1 then ran a rapid drug test on the white powder and the result was positive for heroin hydrochloride.  The applicant was therefore arrested.  The applicant said under caution that “these things are not mine, a friend asked me to bring them back there for him.”  PW1 then handed the snake skin pattern handbag and the suitcase to another Customs Officer 99104 Lau Yiu Ming, the 3rd Prosecution Witness (PW3).
之後，控方第一證人、申請人和高級海關關員8928把申請人和該行李箱帶入一間搜查室。控方第一證人在查問下得悉申請人去達卡旅遊；在當地買了該蛇紋手袋；她的行李箱內載有在當地買的衣服。其後，控方第一證人以X光檢查申請人的蛇紋手袋和行李箱，發現有可疑。她把蛇紋手袋的分隔層打開，發現內有一個啡色包，她用𠝹刀𠝹開大約1.5厘米，看見裡面有白色粉末。控方第一證人把那些白色粉末作毒品快速測試，測試顯示對海洛英鹽酸鹽有陽性反應；於是拘捕申請人。申請人在警誡下說：「這些東西不是我的，是我的朋友叫我幫他帶回去的。」其後，控方第一證人把蛇紋手袋和行李箱交了給另一到海關關員99104劉耀明（控方第三證人）。

At 1:30 pm the same day, PW3 handed the snake skin pattern handbag and the suitcase to Customs Officer 9908 Wong Yiu Kwong, the 2nd Prosecution Witness (PW2), for handling.  PW2 found that there were two compartments in the snake skin pattern handbag.  In each compartment, there was a packet of powdery substance wrapped in carbon paper that was fastened with adhesive tapes.  When he examined the suitcase, he found 3 books inside.  He then cut open the front and back covers of the books with a cutter exposing in each book a bag of black carbon paper wrapped with plastic sheet containing powder therein.  PW3 also found two handbags inside the suitcase.  Inside each handbag, there was a packet of suspected dangerous drug wrapped in black carbon paper.  PW2 then ran a rapid drug test on the powder found inside the snake skin pattern handbag and the 3 books and the suspected dangerous drugs found inside the suitcase.  The test result was positive for cocaine.
同日下午1時半，控方第三證人把蛇紋手袋和行李箱交給海關關員9908黃耀光（控方第二證人）處理。後者發現蛇紋手袋有兩個分隔層，各有一包用膠紙綑住的碳紙，內有粉狀物體。當他檢查行李箱時，他發現內有三本書。他用𠝹刀𠝹開書的封面和封底，顯露每本書裡都有一個以膠紙包住黑色碳紙的袋，內有粉末。控方第三證人又發現行李箱內有兩個手袋，內裡各有一包黑碳紙包裝的懷疑毒品。控方第二證人把蛇紋手袋及三本書內發現的粉末，和行李箱內發現的懷疑毒品作毒品快速測試，測試顯示對可卡因呈陽性反應。

PW2 put the 7 packets of suspected dangerous drugs found upon search into exhibit bags and sealed them respectively, assigning them with Customs exhibit serial number and signed.  However, he did not ask the applicant to countersign on the exhibit bags.
控方第二證人把搜獲的7包懷疑危險藥物放進證物袋，把它們封口，寫上海關證物編號並簽名，但他沒有要求申請人在證物袋上加簽。

Between 1 and 2 am on 11 July 2012, PW2 handed the aforementioned 7 exhibit bags to Customs Officer 6125 Tsang Wai Yin, the 6th Prosecution Witness (PW6) for custody.  At 7:15 am the same day, PW6 handed the 7 exhibit bags to Customs Officer 89119 Cheung Wai Kwong, the 7th Prosecution Witness (PW7).  On the same day, PW7 handed the exhibits to Customs Officer 599 Tsang Koon Hei, the 8th Prosecution Witness (PW8) at the car park of Ho Man Tin Government Offices.  PW8 then submitted the exhibits to the Government Chemist Chan Tai Wai, the 9th Prosecution Witness (PW9) for analysis.  According to the findings of PW9, the suspected dangerous drugs were the dangerous drugs particularized in the charge sheet.
2012年7月11日凌晨1至2時，控方第二證人把上述7個證物袋交給海關關員6125曾偉賢（控方第六證人）看管。同日早上7時15分，控方第六證人將那七個證物袋交給關員89119張偉光(控方第七證人), 後者在同日，在何文田政府合署停車場將證物轉載交關員599曾冠僖(控方第八證人)。控方第八證人再將證物交給政府化驗師陳大偉（控方第九證人）進行化驗。控方第九證人證實那些懷疑毒品為控罪書上所述的危險藥物。

All prosecution witnesses testified that in the course of handling the dangerous drugs in question, the exhibits had not been unlawfully tampered with.
各控方證人供述他們處理涉案危險藥物的過程中，均沒有非法干擾證物。

No fingerprint of the applicant was found on the packaging of the dangerous drugs in question.
涉案危險藥物的包裝上沒有申請人的指紋。

The retail price of the dangerous drugs in question was about HK$1,016,000.00 as at July 2012.
涉案毒品2012年7月的零售價約港幣1,016,000.00 元。

Video Recorded Interview
錄影會面紀錄

From 11:07 pm on 10 July 2012 to 1:09 am the next day, the applicant voluntarily took part in a video recorded interview under caution conducted by the Customs Officers with the assistance of a Putonghua interpreter.  The video recorded interview was produced in court as prosecution exhibit P59.  The applicant’s case can be summarized as follows.
2012年7月10日晚上11時7分至翌日零晨1時9分，申請人自願地在警誡下接受海關人員的錄影會見，過程有普通話傳譯協助。錄影會面記錄呈堂為控方證物P59。申請人的說法可簡述如下。

The applicant resided in Gangjiawan, De’an County, Jiujiang City, Jiangxi Province.  She was single.  She studied pharmaceutical marketing in a post-secondary school and had worked as a clerk.  She arrived in Dhaka on 2 July 2012 and had stayed there for 9 days.  She went to Dhaka to collect samples for a black friend “Prince”.  According to the applicant, Prince was engaged in foreign trade exporting merchandises such as clothes, shoes and accessories.  She agreed to go to Bangladesh on condition that Prince would pay the expenditures incurred in the trip.  She asked Prince to pay her RMB3,000.00 as wages but Prince deposited USD3,984.00 in her account.  The applicant sent her passport to Prince so that Prince could apply for a Bangladesh Visa on her behalf.  Prince also gave her USD200.00 and RMB400.00 for the trip.  When she arrived in Bangladesh, no one came to the airport to pick her up.  She could only rent a room in a guesthouse.  On the next day, she received a phone call from a female called “Moon” whom Prince told her was the girlfriend of his elder brother.
申請人家住江西省九江市德安縣港家灣，未婚，在大專時修讀醫藥營銷，曾任職文員。她在2012年7月2日抵達達卡，逗留九日，目的是替一名黑人朋友“Prince”到達卡拿取樣品。申請人指Prince從事外貿生意，出口衣服、鞋、首飾等貨品。她答應Prince前往孟加拉，而行程所需費用會由Prince支付。申請人要求Prince給她人民幣3,000.00元工資，但Prince把美金3,984.00元存入申請人的戶口。申請人把她的護照寄給Prince代辦孟加拉簽證。就是次旅程，Prince給她美金200.00元和人民幣400.00元。當她抵達孟加拉，沒有人來接機，她只好租住一間賓館。翌日，一名叫“Moon”的女子致電申請人。Prince告訴申請人Moon是他哥哥的女朋友。

At about 9 pm on 10 July 2012, Moon brought over a snake skin pattern handbag and a suitcase to help the applicant pack her personal belongings together with the samples.  Subsequently, Moon led the applicant to hail a taxi for the airport.  The applicant had checked the suitcase in the toilet of the airport.  She had also flipped the books inside the suitcase and touched the snake skin pattern handbag.  She did not find anything.  The applicant insisted that she did not know the snake skin pattern handbag and the suitcase were concealed with the dangerous drugs in question.
2012年7月10日晚上約9時，Moon帶同一個蛇紋手袋和行李箱協助申請人收拾行李並把申請人的個人物品和樣品一起收拾。然後，Moon帶申請人乘坐的士去機場。申請人在機場的洗手間有檢查過行李箱，亦有翻過箱內的書和觸摸過蛇紋手袋，但卻沒有甚麼發現。申請人力稱她不知道蛇紋手袋和行李箱內藏有涉案毒品。

Chain of evidence of the dangerous drugs in question
涉案毒品證據的連續性

There were discrepancies in the evidence of PW1 and PW2 in two regards.  First, PW1 said she had cut open the brown plastic bag found inside the snake skin pattern handbag and took out the powder for a rapid drug test.  However, PW2 said that his recollection was that the brown plastic bag was not cut open.  Second, the rapid drug test run by PW1 on the dangerous drugs found in the snake skin pattern handbag showed a positive result for heroin.  But the result of the rapid drug test run by PW2 was positive for cocaine.  Mr Lau, counsel for the applicant at trial, therefore objected to the production of the drugs in court on the grounds that the course of seizing the dangerous drugs, that is the chain of evidence, and the nature of the dangerous drugs were in dispute.  As the Prosecution had failed to prove that the dangerous drugs in question were seized from the applicant’s luggage, the defence objected to the production of the dangerous drugs in court.  Mr. Lau further contended that the trial judge should make a ruling on the admissibility of the dangerous drugs.  Instead, the trial judge formed the view that the issue was one of fact-finding rather than legal ruling and hence should be left for the jury to decide.  As such, the drugs in question and relevant evidence were marked as provisional exhibits by the trial judge.
控方第一和第二證人的證供上有兩方面的分歧。第一，控方第一證人指她有「𠝹開」蛇紋手袋裡面的啡色膠袋拿出粉末作快速毒品測試。控方第二證人則表示他記憶中該啡色膠袋沒有被「𠝹開」。第二，控方第一證人為蛇紋手袋內發現的危險藥物進行快速測試，結果是海洛英呈陽性反應；但控方第二證人進行的快速測試，結果則是可卡因呈陽性反應。因為這些分歧，原審時代表申請人的劉大律師反對涉案的毒品呈堂。劉大律師指毒品的檢取過程，即連鎖性，和毒品的性質有爭議，而控方未能證明有關危險藥物就是從申請人的行李所檢取的，所以他反對控方把危險藥物呈堂。劉大律師認為原審法官應就毒品可否呈堂作出裁決。原審法官卻認為這是一個事實的裁定，並非法律問題，理應交由陪審團定奪，原審法官並把涉案的毒品和相關證據列為臨時證物。

When the court admitted all provisional exhibits into evidence, Mr Lau made an application for no case to answer.  In his ruling, the trial judge pointed out that although the handling of the dangerous drugs in question and their nature might have been questioned, the evidence in these regards was not so flimsy that no reasonable jury would convict the applicant.  The court therefore ruled that a prima facie case was established.  As regards the finding of facts, the court would leave them for the jury to consider and decide.
當原審法官批准所有列作臨時證物可作證物呈堂後，劉大律師向法庭提出毋無需答辯申請。原審法官指本案涉及的危險藥物的交收過程和它們本身的性質雖受到質疑，但這兩方面的證供並非薄弱致任何一個合理的陪審團也不會裁定申請人罪成，所以裁定表面證據成立，而有關這些事實的裁斷，則交由陪審團考慮及決定。

Defence Case
辯方案情

The applicant elected not to give evidence nor call any defence witness.  The stance of the applicant was that the explanation she had given in the record of interview already showed that she had no knowledge that dangerous drugs were concealed in the luggage.
申請人選擇不作供，也沒有傳召任何辯方證人。申請人的立場是她在會面記錄作出的辯解顯示她對於行李內暗藏危險藥物一事全不知情。

Grounds of Appeal
上訴理由

Mr Philip Wong, counsel for the applicant, has advanced four grounds of appeal.  The first and the second grounds assert that the trial judge was in error in declining to rule on the admissibility of the dangerous drugs in question despite having recognized the chain of evidence concerning the course of seizing the dangerous drugs in question was in dispute.  The trial judge was further erred in mistaking that the issue was only concerned with a finding of facts and hence a civil standard of proof was used and he ruled that there was a prima facie case upon conclusion of the prosecution case.
申請人的代表大律師黃志偉提出四項上訴理由，第一和第二上訴理由指，雖然原審法官確認申請人對於相關毒品可否呈堂有爭議，即涉案毒品之檢取過程的連鎖性有否受干擾，但他錯誤地拒絕作出裁斷，更誤認這個爭議只涉及一個事實裁定，而繼而採用民事舉證標準處理及在控方舉證完畢後，裁定在這方面表面證據成立。

The third ground of appeal asserts that the trial judge had erred in asking the jury to resolve the discrepancies between PW1 and PW2’s evidence by speculation without directing or pointing out to the jury that the dangerous drugs in question might have been tampered with in the course of seizure.
第三上訴理由指，原審法官錯誤地要求陪審團以猜測方式解決控方第一及第二證人證供方面的分歧；但沒有引導陪審團及向他們指出，在毒品檢取過程中，相關毒品有可能受到干擾。

The fourth ground of appeal asserts that the trial judge had failed to follow the case of HKSAR v Lai Wing Huen [2014] CHKEC 40 in that sufficient directions must be given to the jury on the issue of knowledge on the part of the defendant of the dangerous drugs in question.
第四上訴理由指，原審法官沒有依從香港特別行政區 訴 賴穎萱 [2014] CHKEC 40一案中就一名被告人是否在知情下販運危險藥物這議題向陪審團作出足夠引導。

Discussion
討論

This Court shall first deal with the first and second grounds of appeal.
本庭首先處理第一及第二個上訴理由。

In his submission, Mr Wong said that the trial judge should have adopted the special procedure to decide whether the dangerous drugs in question could be admitted as prosecution exhibits in view of the serious discrepancies between PW1 and PW2’s evidence.  And they could only be admitted as exhibits if the court was satisfied of the chain of evidence beyond a reasonable doubt.  However, the trial judge only ruled on a balance of probability in mid-way submission that a prima facie case was established, leaving to the jury to decide whether the dangerous drugs in question could be accepted as evidence.  Mr. Wong contended that the trial judge was in error since whether the dangerous drugs in question could be admitted as prosecution evidence was a legal issue rather than a factual one.
黃大律師陳詞說，因為控方第一和第二證人的證供有嚴重分歧，原審法官應該採取特別程序處理涉案毒品是否可以呈堂為控方證物，並且必須在毫無合理疑點的情況下，信納涉案毒品證據的連續性才可以接納它們為呈堂證物；但原審法官只是在中段陳詞時以相對可能性的衡量標准裁定表面證據成立，然後把涉案毒品是否可接納為證據交給陪審團決定。黃大律師認為原審法官犯了錯誤；原因是涉案毒品可否呈堂為控方證據是法律問題，而不是事實的爭議。

This Court is of the view that the trial judge was correct in dealing with the admissibility of the dangerous drugs in question.  The chain of evidence on the course of seizure of the dangerous drugs in question and the nature of the dangerous drugs in question were both factual issues.  Once the trial judge was satisfied that a prima facie case was established, the issues should be left for the jury to decide.  It was utterly wrong for Mr. Wong to package a factual issue that should be decided by the jury in the guise of a legal one that should be dealt with by the trial judge to support the first and second grounds of appeal.  They are rejected by this Court.
本庭認為，原審法官處理涉案毒品是否可以呈堂的做法正確。涉案毒品之檢取過程的連續性及其性質，都是事實的爭議，當原審法官信納有表面証據成立後，便應交由陪審團定奪。黃大律師把明顯是應該由陪審團決定的事實爭議包裝為原審法官應該處理的法律問題，以支持第一及第二個上訴理由的做法是完全錯誤的，本庭不接納。

The third and fourth grounds of appeal are effectively complaints against the trial judge for unfairly directing the jury.  This Court does not intend to repeat Mr Wong’s submissions.  Having thoroughly read the directions given by the trial judge to the jury, this Court is of the view that the directions were just, fair and balanced.  There was nothing in the directions that could possibly be criticised by Mr Wong.
第三及第四上訴理由其實是投訴原審法官對陪審團的指引不公。本庭不擬詳細論述黃大律師的陳詞。經細閱過原審法官向陪審團的指引後，本庭認為他的指引中肯、持平和不偏不倚，並無可以讓黃大律師詬病之處。

Conclusion
結論

For the above reasons, this Court considers that none of the applicant’s grounds of appeal are substantiated.  This Court finds that there is nothing unsafe about the conviction imposed against the applicant.  This Court therefore refuses her application for leave to appeal.
基於上述原因，本庭認為申請人的上訴理由無一成立。對申請人被裁定罪名成立，本庭不認為有任何不穩妥之處，因此本庭拒絕其上訴許可申請。

Philip Wong, instructed by Shea & Co., Damien Solicitors, for the Applicant.
答辯人：由律政司副刑事檢控專員梁卓然代表

David Leung, Deputy Director of Public Prosecutions of the Department of Justice, for the Respondent
申請人：由佘英輝律師行轉聘黃志偉大律師代表