Hon Cheung JA (giving the judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案理由書：

The Applicant was charged with one count of trafficking in a dangerous drug, contrary to sections 4(1)(a) and 4(3) of the Dangerous Drugs Ordinance (Cap. 134 of the Laws of Hong Kong).  The dangerous drug involved was 14.41g of methamphetamine hydrochloride, commonly known as “ice”.  The Applicant was convicted after trial before Deputy Judge Poon and a jury and was sentenced to 7 years’ imprisonment.  The Applicant now seeks leave to appeal against both conviction and sentence.
申請人被控一項販運危險藥物罪，違反《危險藥物條例》（香港法例第 134 章）第 4(1)(a) 及4(3) 條。本案涉及的毒品是 14.41 克甲基苯丙胺鹽酸鹽，即俗稱「冰」的毒品。案件經高等法院暫委法官潘敏琦聯同陪審員審理後，申請人被裁定罪名成立及被判處監禁七年。申請人對定罪及刑期提出上訴許可申請。

The facts
案情

The facts revealed that at 9.20 p.m. on 8 November 2006, Customs and Excise officers entered a unit at Flat B, 4/F., 98 Yen Chow Street, Shamshuipo.  The unit was rented by the Applicant, who was present in the unit at the time.  From a waist-bag hung on the frame of a metal bed, the officers found a transparent plastic bag containing a drug.  One of the officers (i.e. PW1) asked the Applicant what was in the transparent plastic bag, and the Applicant replied that it was “ice”.  The drug in question was subsequently confirmed upon laboratory tests to be “ice” weighing 13.15g.  PW1 cautioned the Applicant immediately and inquired of him whether there was any other drug in the unit apart from the abovementioned “ice”.  The Applicant said there were drugs at the edge of the frame of the lower bunk bed and inside the sock which he was wearing on his left foot.  From the edge of the frame of the lower bunk bed, a packet of a drug was found, which was subsequently confirmed by laboratory tests to contain 0.62g of “ice”.  Another packet of a drug was also found from the said sock that the Applicant was wearing, and subsequent laboratory tests confirmed that the packet contained 0.64g of “ice”.  Those two packets of drugs were each rolled into a straw-like shape and secured with adhesive tapes.  The total weight of the three bags of drugs in question was 14.41g.  The officers found only 61 transparent plastic bags from a plastic cabinet at the unit.
案情顯示海關關員於 2006 年 11 月 8 日晚上 9 時 20 分進入申請人在深水埗欽州街 98 號 4 樓 B 室所租住的單位內進行調查；當時申請人是在該單位內的。關員在該單位內的一張鐵床床框邊懸掛着的一個腰包內發現一個盛載着毒品的透明膠袋。此時，其中一名關員（即控方第一證人）詢問申請人透明膠袋內的東西是甚麼。申請人回答他那些東西是「冰」。有關的毒品後來被化驗及被証實為重 13.15 克的「冰」。控方第一證人即時警誡申請人及查問他在該單位內除上述「冰」外還有沒有其他毒品。申請人說他在碌架床的下格床框邊及他左腳穿著着的襪子內還藏有毒品。關員在碌架床下格的床框邊搜出一小包毒品，後經化驗被証實為 0.62 克的「冰」。另外，關員在申請人左腳的襪子裏亦發現一小包毒品，這小包毒品經化驗後被証實為 0.64 克的「冰」。該兩小包毒品都被捲成管狀和被膠紙黏貼着。本案涉及的三包毒品的總重量為 14.41 克。關員在該單位的一個塑膠櫃內只搜獲 61 個透明膠袋。

At trial, the Applicant elected to give evidence.  He said he had been consuming heroin for more than 20 years, but two years prior to the offence he gave up heroin and consumed “ice” instead.  He said he was a welder at a construction site, working for 20 days on average and earning $15,000.00 per month.  Two days prior to the offence, he purchased the drugs in question at $3,400.00.  He said that the drugs in the two packets that the officers found from the edge of the frame of the bunk bed and his left sock came from the drugs in the larger bag found in the waist-bag.  The Applicant explained that he divided the drugs into smaller portions because he wanted to limit his drug consumption.  He took drugs twice a day, and he could finish each packet of drug in two takes.  The drugs in question had been delivered to his home by a drug peddler.  At the time of the offence, he was about to consume the drug contained in one of the packets.  When the entrance door of the unit was being opened, he thought it was his girlfriend from whom he had been concealing his drug-taking habit, and so he hid the drug away by stuffing it into the sock that he was wearing on his left foot.  The Applicant testified that he consumed “ice” with a consumption device made from a soda bottle.
申請人選擇自辯。他自稱吸食海洛英逾 20 年，但在案發前兩年戒掉了海洛英的毒癮，改為吸服「冰」。他指自己是一名地盤燒焊工人，每月工作的日數平均為 20 天，月薪為 $15,000.00。案發前兩天他以 $3,400.00 購入了涉案的毒品。他說關員在該單位內的碌架床床框邊及他左腳襪子裏搜出的兩小包毒品是他將藏在該腰包內的大包毒品分拆出來的。申請人解釋將毒品分拆成小包是因為要限制自己吸服的數量。他每日吸服毒品兩次，每一小包的毒品可供他吸服兩次，而涉案毒品是由毒品賣家送到他家裡的。案發時他正準備吸服其中一小包毒品，當有人開啟該單位的門時，他以為是他的女朋友，由於他一向都是瞞着她吸服毒品的，為免她發現毒品，就將該包毒品塞進自己的左腳襪子裏面。申請人供稱他是用一個波子汽水樽製成的吸食器來吸服「冰」的。

Grounds of appeal
上訴理由

Mr Hung for the Applicant has put forward a number of grounds of appeal in respect of the present application.  Among these grounds, the most significant one is, in our view, that pertaining to the direction given by Deputy Judge Poon to the jury on the question of majority verdict.
代表申請人的孔慶碩大律師就本申請提出多項上訴理由，但本庭認為最重要的一項是有關潘法官對陪審團作出的裁決比例的指引。

Initial direction on majority verdict
有關裁決比例的首次指引

In her direction to the jury, Deputy Judge Poon made it clear that they must first consider if the Applicant was guilty of trafficking in a dangerous drug and that, even if they did not consider him guilty of that offence, they still had to consider if the Applicant was guilty of possessing a dangerous drug.
潘法官在給予陪審團指引時清楚告訴他們首先是要考慮申請人有否干犯販運毒品罪，但就算他們認為他沒有干犯該罪行，他們仍須考慮申請人有否干犯管有毒品罪。

In the course of directing the jury, Deputy Judge Poon twice explained the type of verdict that was acceptable to the Court.  The first direction, which has been reproduced on page 10 of the Appeal Bundle, is in the following terms:
潘法官在引導陪審團時曾經分別兩次向陪審團述明怎麼樣的裁決才是法庭可以接受的裁決。有關的第一次指引可見於上訴文件卷第 10 頁：

Members of the jury, whether you find [the defendant] guilty of trafficking in a dangerous drug or not, it is best for you to reach a unanimous verdict.  A unanimous verdict is a verdict upon which the seven of you all agree, which means a 7:0 verdict, whether it be one of guilty or not guilty.  If you are unable to reach a unanimous verdict after thorough deliberation, the Court is prepared to accept from you a majority verdict, i.e. a 6:1 or 5:2 verdict.  Whether it be one of guilty or not guilty, a 6:1 or 5:2 verdict is acceptable, although of course it is better to have a 7:0 verdict.  On the other hand, an even lower ratio of 4:3 is not acceptable to the Court because it is not a majority verdict.  If this situation occurs, I shall further direct you as appropriate.  If, upon careful consideration, you find whether by majority or unanimously that the defendant is not guilty of trafficking in a dangerous drug, then you must unanimously find him guilty of possessing a dangerous drug.
「各位陪審員，無論你哋就販運危險藥物罪嘅罪名係成立抑或罪名不成立，最好係有一個一致嘅裁決，一致就係你哋七個人都係一致嘅，即係七對零嘅裁決，無論係有罪好，抑或冇罪好，如果經過詳細嘅討論，你哋仍然唔能夠達致一個一致嘅裁決，法庭可以接受大比數嘅裁決，即係話一個六對一或者五對二嘅裁決，無論係有罪好抑或無罪好，可以接受六對一或者五對二，當然最好係七對零嘅裁決。但係假如再低嘅四對三，呢個並唔係法庭可以接受嘅裁決，因為呢個唔屬於大比數裁決，有咁嘅情形出現嘅話，我會喺適當嘅時候再畀指引你哋嘅。假如你哋經過詳細考慮，裁定無論係大比數抑或一致裁定被告販運危險藥物罪罪名不成立，你哋就必須要一致裁決佢管有危險藥物罪罪名成立。」

Later on, Deputy Judge Poon distributed to the jurors a document which was intended to assist them in reaching a verdict.  That document, which again contained statements about majority verdict, read as follows:
之後，潘法官向陪審團派發一份協助他們作出裁決的文件，該文件的內容同樣是敍述有關裁決的比例，其內容如下：

香港特別行政區	HONG KONG SPECIAL ADMINISTRATIVE REGION
「

High Court Criminal Case No. 20 of 2007
高等法院刑事案件2007年第20號

Verdict
裁決

Jury can find the defendant guilty or not guilty.  It can be a unanimous verdict or a majority verdict of 6:1 or 5:2. (The Court will not accept a verdict of 4:3.)
陪審團可裁定被告有罪，或裁定被告無罪。裁決可以是一致的決定，又或者是 6 對 1 或 5 對 2 的大多數裁決。（法庭是不會接納 4 對 3 的裁決）

Direct the jury to return a verdict
引導陪審團宣告裁決

就被告鍾志波被控販運危險藥物罪名，你們是否已作出裁決？	Question 1:	On the count of trafficking in a dangerous drug against the defendant CHUNG Chi-bor, have you reached a verdict?
問題一

Yes
☑是

No
☑否

你們作出的裁決是否一致？	Question 2:	Is your verdict unanimous?
問題二

Yes (go to Question 4)
☑是（轉往問題四）

No (go to Question 3)
☑否（轉往問題三）

決定的比數如何？	Question 3:	By what majority?
問題三

6:1	5:2
☑ 6 對 1  ☑ 5 對 2

你們的裁決是什麼？	Question 4:	What is your verdict?
問題四

Guilty
☑ 有罪

Not Guilty (go to Question 5)
☑ 無罪（轉往問題五）

(Where there is an alternative verdict)
（假如有轉以他罪的裁決）

就被告鍾志波管有危險藥物一項罪名，法庭指示你們作出罪名成立的裁決，你們是否作出如指示的一致裁決？	Question 5:	On the count of possessing a dangerous drug against the defendant CHUNG Chi-bor, the Court directed you to return a guilty verdict; do you return a unanimous verdict as directed?
問題五

Yes / No
☑ 是 / ☑ 否」

8.	Deputy Judge Poon then went on to explain to the jury the contents of that document and revisited the question of majority verdict in the following terms:
接着，潘法官就該文件的內容向陪審團作出解釋及重複述說有關裁決比例一事：

… let us look again at the beginning [of the document], which states that you can find the defendant guilty or maybe not guilty, but either way the verdict can be unanimous or 6:1 or 5:2.  It should be made clear here that the Court will not accept a 4:3 verdict.  Then it is about guilty or not guilty.  If the offence being charged is established, and [the defendant is] guilty, then the matter comes to an end – pardon me, if guilty, then you will be asked if the verdict is unanimous or by what majority.  On the other hand, as you can see from Question 4, if you find that the offence of trafficking in a dangerous drug is not established and that [the defendant is] not guilty, then go to Question 5.  Question 5 concerns the offence of possessing a dangerous drug.  In other words, if you find him not guilty, you must unanimously find him guilty of possessing a dangerous drug.
「.....睇番開頭嗰度，就係講你哋可以裁定被告有罪，亦都或者可以裁定佢冇罪，不過無論係有罪抑或冇罪，個裁決可以係一致嘅，又或者係六對一，或者五對二嘅，呢度講明，法庭係唔接納四對三。然後跟住就係有罪抑或冇罪，如果係被控嘅罪名成立，咁有罪，咁個問題就完結喇 -- 對唔住，有罪嘅話，咁就要問你哋個裁決是否一致，比數係點樣樣。如果係冇罪嘅話，問題四嗰度睇到，如果你係裁決佢販運危險藥物罪係罪名不成立，冇罪嘅話，就要轉往問題五，問題五就係管有危險藥物罪，即係話如果你裁決佢係無罪嘅話，你哋就要一致裁定佢管有危險藥物罪罪名成立。」

9.	Deputy Judge Poon concluded her directions to the jury at 11.15 a.m. that day.  The jury then retired for deliberation.
潘法官在當日 11 時 15 分結束她對陪審團作出的指引。陪審團隨後退席商議。

A jury verdict of 4:3
陪審團四對三的裁決

10.	The jury returned to the Court at 3.07 p.m. that day.  The audio transcript records the following exchanges among the Judicial Clerk, Deputy Judge Poon and the Foreman:
陪審團於當日下午 3 時 07 分返回法庭。以下是當時司法書記和潘法官與首席陪審員對話的錄音謄本內容：

Judicial Clerk:	Foreman, please stand up.  On the count of trafficking in a dangerous drug against the defendant CHUNG Chi-bor, have you reached a verdict?
「司法書記：首席審陪員，唔該請起立。就被告鍾志波被控販運危險罪藥物罪名，請問你哋是否已經作出裁決？

Foreman:	No.
首席陪審員：否。

Court:	[Have you] reached a verdict?
官：是否作出裁決？

Judicial Clerk:	Have [you] reached a verdict?
司法書記：是否已經作出裁決呢？

Court:	Question 1.
官：問題一。

Judicial Clerk:	Question 1.
司法書記：問題一。

Court:	Question 1 first.
官：問題一先。

Foreman:	Yes.
首席陪審員：是。

Judicial Clerk:	Is your verdict unanimous?
司法書記：請問你哋嘅裁決是否一致？

Foreman:	No.
首席審陪員：否。

Judicial Clerk:	By what majority?
司法書記：請問個裁決嘅比數係幾多呢？

Foreman:	4:3.
首席審陪員：四比三。

Court:	Members of the jury, please retire first.  There are a few questions that I need to discuss with counsel to see how the 4:3 [verdict] should be dealt with.
官：請你哋先返入去。我有少少問題要同律師商討咗，睇下而家四對三點樣處理先。」

Further directions by Deputy Judge Poon
潘法官再次作出指引

11.	After the jury retired, Deputy Judge Poon discussed with counsel for both parties the direction on majority verdict.  Subsequently, she directed the jury in the following terms:
潘法官在陪審團避席後與控辯雙方律師商議有關判決比數的指引，她之後向陪審團作出以下的指引：

Court:	Members of the jury, as I told you this morning and indeed as printed on the sheet of paper, a 4:3 [verdict] is not a verdict that can be accepted by the Court because it is not a majority verdict.  The Court is prepared to accept a verdict of 7:0, 6:1 or 5:2, whether it be one of guilty or not guilty.  Therefore, at this stage you do not have to tell me this is your final verdict, because the Court cannot accept your 4:3 verdict at this stage.  I will allow you a bit more time for you to discuss and see if you can reach a verdict acceptable to the Court, be it a majority or a unanimous verdict, within that extra time.  If this cannot be done even after a certain period of time, I will give you further directions.  But now I give you some more time and hope [you] can reach a verdict acceptable to the Court.  The 4:3 verdict at this stage cannot yet be accepted by the Court.  Please retire for further deliberation.
「官：各位陪審員，今朝早我同你哋講過喇，咁其實喺嗰張紙上面亦都印咗，四對三呢個唔屬於一個法庭可以接受嘅裁決嚟嘅，因為呢個唔係一個大比數嘅裁決。法庭可以接受嘅裁決係一個七對零、六對一或者係五對二，無論係有罪或者係冇罪都係，所以呢個階段你哋唔需要話畀我聽你哋最後個裁決係咁，因為呢個四對三你哋暫時呢個裁決法庭唔能夠接受，我會畀多少少時間你哋去商討，睇下喺多少少時間入面可唔可以達到一個法庭認為可以接受嘅，一係就大比數嘅裁決，一係就一致嘅裁決。如果經過某一段時間都唔 可以嘅話，我會畀其他嘅指示畀你哋嘅，但係我而家再畀時間你，希望能夠達到一個法庭可以接受嘅裁決，而家呢一個四對三唔係法庭可以接受嘅裁決住。請入番去再繼續商討。」

Jury verdict
陪審團的裁決

12.	The jury retired at 3.17 p.m. and the hearing resumed at 3.54 p.m.  The relevant notes of proceedings read as follows:
陪審團於3時17分退席，案件於3時54分恢復聆訊。有關的聆訊記錄內容如下：

Judicial Clerk:	Foreman, please stand up.  On the count of trafficking in a dangerous drug against the defendant CHUNG Chi-bor, have you reached a verdict?
「司法書記：首席陪審員，請起立。就被告鍾志波被控販運危險藥物罪，你哋是否已經作出裁決?

Foreman:	Yes.
首席陪審員：是。

Judicial Clerk:	Is your verdict unanimous?
司法書記：你哋嘅裁決是否一致?

Foreman:	No.
首席陪審員：否。

Judicial Clerk:	By what majority?
司法書記：比數係幾多呢?

Foreman:	5:2.
首席陪審員：五對二。

Judicial Clerk:	Is it a verdict of guilty or not guilty?
司法書記：請問個裁決係有罪定冇罪?

Foreman:	Guilty.
首席陪審員：有罪。

Judicial Clerk:	Thank you.
司法書記：唔該。」

Mr. Hung’s submissions
孔大律師的陳詞

Mr. Hung submits that Deputy Judge Poon failed to indicate to the jury that they had to inform the Court if they were unable to reach a majority upon deliberation after further retirement.  Instead, Deputy Judge Poon requested the jury to proceed with their deliberation and reiterated that the Court would further direct them should they be unable to reach a majority verdict.  Mr. Hung contends that Deputy Judge Poon might in this way leave the jury with an impression that individual jurors had to yield to the majority jurors.  Mr. Hung submits that the approach taken by Deputy Judge Poon might cause the jury to mistakenly think that they could never return a 4:3 verdict and were bound to reach a majority verdict which was acceptable to the Court.
孔大律師指潘法官沒有向陪審團說明，若他們在再次退席商議後仍未能達成大多數判決時，他們是必須讓法庭知道有關的結果。潘法官不但沒有這樣做，反而要求陪審團再繼續進行商議及重申若他們仍未能達成大多數判決，法庭屆時會再次指示他們。孔大律師指潘法官這個做法有可能給予陪審團一個錯覺，就是個別陪審員需要對其他多數的陪審員作出妥協。孔大律師指潘法官這個處理手法可能會導致陪審團誤以為他們無論怎樣都不可以達致四比三的決定，以及他們必須達成一個法庭可接受的大多數裁決。

Discussion
本庭的意見

Whenever a case is tried with a jury, the verdict returned by the jury must be either unanimous or by majority.  A unanimous verdict by seven jurors is a verdict where they all agree that the defendant is guilty or otherwise, whereas a majority verdict is one where six jurors against one or five jurors against two agree that the accused is guilty or otherwise.  Anything less than this majority verdict, i.e. 4:3, does not constitute a valid verdict.
凡是有陪審團參予審理的案件，陪審團所作出的裁決必須是一致或者是大多數的裁決。七名陪審員一致的裁決是指七名陪審員全體同意被告是有罪或是無罪的裁決，而大比數的裁決是指陪審團以六對一或者五對二來裁定被告人是有罪或是無罪的裁決。至於少於這個大比數的裁決，即四對三比數的裁決是不能構成一個有效的裁決。

Where in the end the jury come up with a 4:3 verdict, this means they are unable to reach a verdict on the case, and hence the court may have to discharge the jury.  However, as the Court of Final Appeal pointed out in Tam King Hon v. HKSAR [2006] 2 HKLRD 143, at the stage of a summing-up, when the jury have not started to deliberate, it is usually inappropriate to refer in the directions to jury to a discharge of the jury in the event of a 4:3 verdict.  The Court of Final Appeal has also held that when a jury do reach a 4:3 verdict, it is open to the judge to give further directions to them.
若果陪審團最終所達致的裁決是一項四對三的裁決，這表示他們未能對案件作出裁決，法庭因此有可能要解散陪審團。但正如終審法院在 Tam King Hon v. HKSAR [2006] 2 HKLRD 143 (譚景漢[譯音])一案中指出，由於陪審團在法官作出結案引導的階段時仍未退席進行商議，故此一般來說若果法官在引導陪審團時說假如他們的裁決是四對三，他就會解散陪審團的話，這並不是一個適當的做法。終審法院指出當陪審團達成的裁決是四對三時，法官是可以再次對陪審團作出指引的。

In her initial directions to jury, Deputy Judge Poon made it clear that the Court could not accept a 4:3 verdict and that she would give them further directions as appropriate.  In our judgment, Deputy Judge Poon was correct in giving such directions.
潘法官在首次引導陪審團時對他們說明，若他們作出四對三的裁決，法庭是不能接納的，而她會在適當的時候再次向他們作出指引。本庭認為潘法官作出有關指引是正確的。

A special feature of the present case is that the facts were relatively straightforward.  Despite Deputy Judge Poon’s indication on three separate occasions (two oral directions and one written direction) that a 4:3 verdict was not acceptable to the Court, the jury returned a 4:3 verdict following deliberation which lasted approximately four hours.  In this case, the Judge should, in our judgment, have tried to find out why the jury returned such a verdict: was it because they did not understand the Judge’s direction earlier on that a 4:3 verdict was not acceptable to the Court, or was it because they held diverse views on the verdict and were unable to reach a consensus despite the 4-hour deliberation?  In our view, in the circumstances of the case, it would have been unsatisfactory for Deputy Judge Poon not to clarify the issue of a  4:3 verdict but instead simply to request the jury to continue their deliberation and reiterate that further directions would be given if they returned a 4:3 verdict again.
本案特別之處是案情比較簡單。雖然潘法官分別三次告訴陪審團（兩次口頭指引和一次書面指引）一個四對三的裁決不是法庭可以接受的裁決，但陪審團經過約四小時的商議後仍是達成四對三的裁決。在這種情況下，本庭認為法官首先要瞭解陪審團為何會作出有關的裁決，是否他們不明白法官之前對他們作出有關四對三裁決是法庭不可以接納的指引，抑或是他們雖然清楚瞭解有關指引，但在經過四小時的商議後仍對裁決存有分歧及無法達成共識。本庭認為潘法官若沒有就陪審團作出四對三的裁決作出澄清，而只要求陪審團繼續商議，並重申在他們再次作出四對三的裁決時會對他們作出進一步的指引，這在本案的情況下是有欠穩妥。

It is true that a judge is entitled to encourage the jury to continue their deliberation in order to arrive at a legally valid verdict.  However, when the jury clearly indicate that they have arrived at a 4:3 verdict, it is insufficient to simply ask them continue their deliberation and tell them that further directions will be given later.  In our view, the judge should at the same time remind the jury that in the end they are entitled to have diverse views on the verdict and are not bound to arrive at a legally valid verdict.  As this Court (Ma CJHC, Stock JA and Gall J) pointed out in HKSAR v. Chan Ka Man [2005] 1 HKC 162, there is no need for the judge to hide from the jury the fact that the law allows them to hold diverse views on the verdict in the end.  Therefore, upon being told by the jury that they were returning a 4:3 verdict, Deputy Judge Poon should not simply have repeated, for a fourth time, the direction on majority verdict, thereby creating a risk of leaving the jury with the wrong impression that they could not possibly disagree on the verdict.  As this Court pointed out in Chan Ka Man, where a jury returns a 4:3 verdict, the judge must make it clear to the jury that if they are still unable to reach a unanimous or majority verdict after further deliberation, they are not only entitled to hold diverse views on the verdict, but must clearly indicate to the judge that they are holding diverse views on the verdict.  Furthermore, in Tam King Hon, the Court of Final Appeal explained that a jury must be free to consider and arrive at a verdict without being subjected to pressure by way of promise or threat or otherwise.  The court must avoid giving the jury the misconception that it is incumbent upon them to express a consensus on a verdict that they do not genuinely hold simply because otherwise it will cause inconvenience, trouble or expense to the prosecution, the defendant, the victim or the general public.
誠然，法官是可以鼓勵陪審團繼續進行商議，以達致一個有法律效力的裁決，但當陪審團清楚向法官表明他們已作出四對三的裁決時，只要求他們繼續進行商議及表示稍後再對他們作出進一步指引並不足夠。本庭認為法官同時需要提醒陪審團他們最終還是可以持有分歧的意見及不達成一個有法律效力的裁決的。正如本庭（高等法院首席法官馬道立、上訴法庭法官司徒敬及原訟法庭法官高嘉樂）在 HKSAR v. Chan Ka Man [2005] 1 HKC 162 (陳家民[譯音])一案中指出，法官不需要隱瞞陪審團，法律容許他們最終對裁決持有分歧意見的。因此當陪審團告訴潘法官他們作出的裁決是四對三時，她不應該只是複述她早前已三次作出有關裁決比例的指引，從而產生令陪審團誤以為不能對裁決存有分歧的危險。正如本庭在陳家民一案指出，若陪審團作出四對三的裁決時，法官必須向陪審團清楚說明，若他們再經過詳細的討論後仍未能達致一個一致或大比數的裁決，他們不但有權就裁決持有分歧的意見，而且必須明確通知法庭他們對裁決存有分歧的意見。終審法院在譚景漢一案中更清楚說明，陪審團必須在沒有壓力的情況下自由思考及作出裁決，所謂的壓力包括來自許諾、恐嚇或其他因素。法庭因此應避免讓陪審團誤以為就算他們對裁決不是真心同意也必須表示同意，否則這會令控方、辯方、案件受害人或公眾不方便、厭煩或產生昂貴的費用。

Mr. Leung, Senior Government Counsel for the Respondent, submits that, in telling the jury before they retired for the second time that “the Court cannot accept your 4:3 verdict at this stage … The 4:3 verdict at this stage cannot yet be accepted by the Court”, Deputy Judge Poon did not make the jury feel that they were bound to reach a verdict acceptable to the Court.  With respect, we do not agree.  As the Judge had told the jury earlier on that she would direct them further if they returned a 4:3 verdict, if she simply repeated this point at that stage, the jury might mistakenly think that they were expected to arrive at a verdict acceptable to the Court.
代表答辯人的高級政府師梁卓然大律師指，潘法官在陪審團第二次退席之前對他們說：「呢個四對三，你哋暫時呢個判決法庭唔能夠接受....而家呢一個四對三唔係法庭可以接受嘅裁決住」，從這番話可見潘法官並沒有令陪審團感覺到他們是必須達成一個法庭可接受的裁決。本庭不同意梁大律師這個看法，因為潘法官在早前已經說過若陪審團達成四對三的裁決，她就會給予他們進一步的指引，所以若潘法官在這個階段還只是一再重複這一點，陪審團是很有可能誤會法庭期望他們達致一個法庭可接受的裁決。

It is clear from the 5:2 verdict the jury returned in the end that they held diverse views on whether the Applicant had trafficked in a dangerous drug.  This being the case, we must not overlook Deputy Judge Poon’s failure to make it clear in her further directions that it was open to the jury to disagree on the verdict, as a result of which the jury might have mistakenly thought that they had no alternative but to arrive at a verdict acceptable to the Court.
本案的陪審團最終作出五對二的裁決，這清楚顯示陪審團對申請人有否販運毒品一事存有不同的意見。在這情況下本庭不能忽視潘法官在再次給予陪審團指引時沒有清楚向他們表明他們最終是可以對裁決持有不同的意見，致陪審團可能誤以為他們必須達致一個法庭可以接受的裁決的做法。

For the above reasons, the Applicant’s conviction is in our view unsafe.
基於這個原因，本庭認為定罪的裁決是不穩妥的。

Conclusion
總結

We allow the Applicant’s application and, treating it as the appeal, allow the appeal and quash the conviction.
本庭批准申請，視申請為正式上訴及批准上訴及撤銷定罪。

Re-trial
重審

The present appeal is allowed on the sole basis of the proper approach that a court should take in giving the relevant directions to the jury.  This has nothing to do the strength or otherwise of the prosecution case.  We therefore consider there should be a re-trial and make an order for re-trial accordingly.
由於這次上訴得直的唯一原因是有關法庭應該如何給予陪審團適當的指引，而不是涉及控方案情的強弱，故此本庭認為案件需要重審及作出重審的命令。

：由律政司高級政府律師梁卓然代表。	Mr. David Leung, Senior Government Counsel, for the Respondent.
答辯人

Mr. Andy Hung, instructed by the Legal Aid Department, for the Applicant (re: conviction).
申請人（定罪）：由法律援助署委派孔慶碩大律師代表。

The Applicant in person (re: sentence).
申請人（刑期）：無律師代表，親自出席。