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

On 7 February 2003, the appellant was convicted before Deputy High Court Judge Derek Pang (as he then was) and a jury of two counts of Trafficking in a Dangerous Drug and was sentenced to 21 years’ imprisonment.
上訴人於2003年2月7日被高等法院暫委法官彭偉昌(當時官階)及陪審團裁定兩項「販運危險藥物」罪罪名成立及被判處21年監禁。

On 20 February 2003, the appellant filed an application for leave to appeal against her conviction, but subsequently she abandoned the application.  The High Court, based on her Notice of Abandonment, dismissed the application on 13 May 2004.  Later, on 16 October 2006, the appellant applied to the Court of Appeal for an order that her Notice of Abandonment should be treated as a nullity.
上訴人於2003年2月20日提交一份針對定罪的上訴許可申請書，但之後放棄該申請。高等法院根據她的「放棄通知書」於2004年5月13日撤銷該申請。之後，上訴人於2006年10月16日向上訴法庭提出申請，要求法庭判令她的「放棄通知書」無效。

On 27 May 2008, the Court of Appeal dismissed that application by reason that the grounds she put forward did not meet the requirements for obtaining the Court’s approval of such application, but advised her that she could apply to the Chief Executive in accordance with section 83P of the Criminal Procedure Ordinance for a direction that the Court was to re-open the appeal.  The appellant did make such an application to the Chief Executive afterwards.  The Chief Executive granted her application and directed the Court to re-open the appeal.
上訴法庭於2008年5月27日以她所提出的理據未能符合法庭批准有關申請的要求為由駁回該申請，但建議她可根據《刑事訴訟程序條例》第83P條向行政長官提出申請，要求他指令法庭重新審理該上訴。上訴人之後向行政長官提出有關申請。行政長官批准她的申請，並指令法庭重新審理該上訴。

Facts
案情

On 4 July 2002, the appellant was stopped and searched by Customs Officers when she entered the territory through the Lowu Checkpoint.  The Customs Officers found in the backpack which the appellant was carrying on her back 972.08 grammes of a substance later confirmed to be the dangerous drug methamphetamine hydrochloride (commonly known as ‘ice’) (‘the first charge’).  The Customs Officers further found inside the appellant’s underpants another packet, containing 19.57 grammes of a substance later confirmed to be the dangerous drug methamphetamine hydrochloride (‘the second charge’).
2002年7月4日，上訴人經羅湖口岸入境時被海關職員截停及搜查。關員在她背着的背囊內發現後証實為972.08克的甲基苯丙胺鹽酸鹽(俗稱「冰」)的危險藥物(‘第一項控罪’)。關員亦在上訴人的內褲內搜出另一包後來証實為19.57克的甲基苯丙胺鹽酸鹽的危險藥物(‘第二項控罪’)。

The appellant now only appeals against the conviction in respect of the first charge.  The ground she relies on relates to the direction given by Deputy Judge Derek Pang to the jury about the legal presumptions provided for in section 47(1) and (2) of the Dangerous Drugs Ordinance in relation to the dangerous drug found in her backpack.  What Deputy Judge Derek Pang said was that if a bag containing dangerous drug was in the direct custody of the applicant [sic] at the time, then under the law she would be presumed to possess the dangerous drug in the bag.  Deputy Judge Derek Pang also gave the following direction as to how the appellant could rebut this presumption:
上訴人現只就第一項控罪提出上訴，她所持的理由是關於彭法官就她的背囊內藏有毒品一事向陪審團作出有關《危險藥品條例》第47(1) 及 (2) 條所定的法律推定指引：彭法官說若果申請人當時是直接保管着一個載有毒品的袋，在法律上她就被推定為管有這個袋裏面的毒品的人。彭法官亦就上訴人如何推翻這個法律推定作出以下的指引:

“The applicant [sic] has to persuade the jury that she did not know there was dangerous drug inside the backpack.  She should be acquitted if she is able to disprove it. Otherwise, she was in possession of the dangerous drug brought from Shenzhen and should be convicted of the first charge.”
「申請人要說服陪審團她不知道背囊裏面有毒品。若果她反証成功就應該脫罪；相反，她就是管有有關的毒品。從深圳進口，所以第一項控罪是應該被判罪名成立的。

As stated in the judgment dated 27 May 2008 given by this Court, in HKSAR v. Hung Chan Wa and another [2006] 9 HKCFAR, the Court of Final Appeal held that the legal presumptions laid down in that Ordinance infringed the presumption of innocence and the right to a fair trial to which a defendant to a criminal charge was entitled under the Basic Law and the Hong Kong Bill of Rights Ordinance. The Court of Final Appeal held that the burden imposed upon the appellant by the legal presumptions was only an “evidential burden” and not a “persuasive burden of proof”.
正如本庭的2008年5月27日判決書所說，終審法院在HKSAR v. Hung Chan Wa and another (熊陳華[譯音]及另一人) [2006] 9 HKCFAR 一案中裁定該條例的法律推定違反了《基本法》及《香港人權法案》賦予刑事控罪的被告人的無罪推定及可獲公平審訊的權利。終審法院認為上訴人就有關的法律推定所需要負上的責任只是「提証的責任」，而不是「需令人信服的舉証責任」。

In our judgment, on the principles laid down in Hung Chan Wa, Deputy Judge Derek Pang’s direction, which imposed on the appellant a “persuasive burden of proof” rather than a mere “evidential burden”, rendered the appellant’s conviction on the first charge unsafe.
本庭認為根據彭法官的指引，上訴人所需負上的責任是「須令人信服的舉証責任」而不單止是「提証的責任」。在這情況下，根據熊陳華一案所定的原則，上訴人的第一項控罪的定罪基礎是不穩妥的。

The relevant legal principle is that if it is held in a subsequent judgment that the Court’s understanding of the law in a previous case is incorrect, an appellant in that previous case who is affected by the subsequent judgment cannot successfully apply for leave to appeal out of time by relying only on that judgment.  He must further prove that there are exceptional circumstances in the case before the Court will grant his application.  However, when the Court of Appeal is dealing with a case referred to it by the Chief Executive, the case must be treated as an appeal to the Court of Appeal by the appellant and it is not necessary to consider whether there are exceptional circumstances in the case. This is because this condition is required only in the case of an application for appeal out of time.  Similarly, the Court of Appeal does not need to bother about whether the previous judgment concerning the appellant was final or whether his previous abandonment of an appeal was a nullity (see HKSAR v. Fu Chiu Wa, CACC 452/2002).
有關的法律原則是若果後來的一項判決裁定法庭在之前的案件中對某項法律所持的意見有錯誤的話，那麼在先前案件被該項新裁決影響的上訴人是不可以僅以該判決而獲得法庭批准他進行逾期上訴的，他必須進一步証明案件存有特殊的情況才可獲得法庭的批准。但當上訴法庭審理由行政長官轉交的案件時，它必須視有關的案件為上訴人向上訴法庭提出的上訴，而無需考慮案件是否存有特殊情況，因為這要求只是適用於逾期上訴申請。同樣地，上訴法庭亦無須理會上訴人之前的判決是否具有終極性或他之前所放棄的上訴是否無法律效力等問題(見：香港特別行政區訴傅朝華(Fu Chiu Wa) CACC 452/2002)。

Mr. Lai, Senior Public Prosecutor, acting for the respondent, indicated that he would not object to this appeal; we therefore allow the appeal and quash the conviction.
代表答辯人的高級檢控官黎嘉誼表示他不會反對這次上訴，故此本庭批准上訴及撤銷定罪。

Application for retrial
重審申請

Mr. Lai asked the Court to order a retrial, but Mr. Hung, counsel for the appellant, objected to a retrial.
黎律師要求法庭命令案件重審，但代表上訴人的孔慶碩大律師卻反對重審。

Under section 83E of the Criminal Procedure Ordinance, if “the interests of justice so require”, the Court may order the case to be retried.  In considering whether a retrial should be ordered, the Court must consider and balance a number of factors, some of which weigh in favour of a retrial and some weigh against it.  The interests of justice are not confined to the interests of the prosecution or of the defendant, but include the interests of the public in Hong Kong that those persons who are guilty of serious crimes should be brought to justice and should not escape punishment merely because of a technical error by the judge in the conduct of the trial or his summing-up to the jury.  The Court does not need to catalogue all the factors which should be taken into consideration (see: Ting James Henry v. HKSAR [2008] 4 HKLRD 850, approving the principles concerning a retrial expounded in Au Pui Kuen v. AG [1979] HKLR 16).
根據《刑事訴訟程序條例》第83E條，法庭為了「司法公正的有所需要」可以命令案件重審。法庭在考慮是否命令案件重審時必須考慮及衡量多項有關連的因素，當中某些因素是支持重審，而某些是不支持重審的。司法公正的需要並不是單單局限於檢控當局的利益或者被告人的利益，它亦包括香港公眾的利益：一名干犯嚴重罪行的人必須受到法律的制裁，而不會因為法官在審理案件或引導陪審團時犯上技術性錯誤就可以消遙法外。法庭是不需要臚列所有需要考慮的因素的(見: Ting James Henry v. HKSAR [2008] 4 HKLRD 850贊同Au Pui Kuen v. AG [1979] HKLR 16就重審原則的裁決)。

Mr. Hung submitted that if a retrial was ordered, the counsel for the appellant would certainly advise the appellant that if she pleaded guilty at the retrial, she would be entitled to a ⅓ or a bit smaller discount of her sentence.  According to HKSAR v. Chok King Foh CACC 351/2008, the starting point for 972.08 grammas of ice is about 19 years.  Assuming that 19 years is the starting point, with a ⅓ discount, she has to serve a sentence of about 12½ years.  From 4 July 2002 (when the appellant was arrested) up to the present, she has already served about 8 years.  Furthermore, if the appellant is of good conduct in prison, she can have an early release from prison (i.e. ⅓ remission of sentence).  In that case, the actual term of imprisonment which she is required to serve is around 8 years and 5 months.  Mr. Hung contended that even if there was no retrial, the appellant would not be so lucky as to be able to avoid serving the sentence she was required to serve; and that a retrial would be a sheer waste of resources and money.
孔大律師指在重審時代表上訴人的律師必定會向上訴人說明，若她在重審時認罪，她會享有三分一或稍低的刑期扣減。根據香港特別行政區訴卓慶和 CACC 351/2008，972.08克的「冰」的量刑基準是約19年。以19年為量刑起點，在扣減三分一後，她需要服刑約12年半。上訴人在2002年7月4日被拘捕後至今已經服滿了約8年的刑期。另外，如果上訴人在獄中行為良好的話，她會獲得提早釋放(即三分一刑期寬免)，那麼她所需服的實際刑期約為8年5個月。孔大律師認為就算沒有重審，上訴人亦不會僥倖地不需服滿所有刑期，重審只會勞民傷財。

We are of the view that a defendant who pleads guilty only at a retrial is not likely to have a ⅓ discount of his sentence.  Depending on the facts of a particular use, the Court generally will give a 20 % to 25% discount.  If the appellant is given a 25% discount of her sentence, then even assuming that at the retrial the Court uses 19 years as the appropriate starting point, she still has to be imprisoned for about 14 years.
本庭認為就算在重審時法庭以19年為適當的量刑基準，但一名在重審時才認罪的被告人往往是不會獲得三分之一的量刑期扣減的。法庭會視乎案情，在一般情況下都會給予20% 至25% 的刑期扣減。若上訴人獲得25% 的刑期扣減，她仍需服刑約14年。

We think that the Court should not consider the factor that the appellant may have an early release because she is given remission for her good conduct.  The reason is that the appellant’s conduct may not be good when she is serving her sentence, and therefore may not be able to have an early release.  Even if she pleads guilty at the retrial and is sentenced to 14 years’ or 12½ year’s imprisonment, that term will still be considerably longer than the 8 years which she has already served.
本庭認為法庭是不應該考慮上訴人會因行為良好而獲得提早釋放的寬免刑期因素，因為上訴人未必在服刑時會行為良好，因而獲得提早釋放。就算她在重審時認罪，並獲法庭判處14年或者12年半監禁，但這個刑期與她現已服滿的8年刑期仍有一段距離。

A serious crime was involved in this case.  The appellant was found to have a substantial quantity of ice on her person.  We allow the appeal only because the judge did not give the jury a proper direction about the legal presumptions.  After considering all the circumstances, we order that the case be retried.
本案是一宗嚴重的罪行。上訴人被發現身上藏有大量的「冰」毒，本庭批准上訴的原因只是因為法官沒有給予陪審團正確的法律推定指引。本庭在考慮過所有的情況後命令案件需要重審。

Mr. Ned Lai, Senior Public Prosecutor of the Department of Justice, for the Respondent.
答辯人：由律政司高級檢控官黎嘉誼代表。

Mr. Andy Hung, instructed by Cheung & Yip, for the Appellant.
上訴人：由張達成葉褀智律師事務所轉聘孔慶碩大律師代表。