Hon Poon J (giving Judgment of the Court):
高等法院原訟法庭法官潘兆初頒發上訴法庭判案書：

Introduction
引言

This is an appeal arising out of a retrial.
這是一宗重審案件引發的上訴。

The applicant Li Yan-hong was charged with a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  It was alleged that the applicant had trafficked in 1.44 kilogrammes of a mixture containing 0.96 kilogrammes of heroin hydrochloride on 17 January 2011 at the Hong Kong International Airport, Chek Lap Kok, New Territories, Hong Kong.  In brief, the prosecution case was that four packets of dangerous drugs, which are the subject of the present case, had been seized by the customs from the suitcase being carried by the applicant who knowingly brought the suitcase to enter Hong Kong.  The applicant pleaded not guilty to the charge with the defence that she was deceived into bringing the suitcase to Hong Kong and that she was in total ignorance of the fact that the dangerous drugs in question had been concealed in the suitcase.
申請人（李艷紅）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。控罪指申請人於2011年1月17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0.96公斤海洛英鹽酸鹽的1.44公斤混合劑。簡言之，控方指海關人員在申請人所攜帶的行李箱內檢獲四包涉案的危險藥物，而申請人是在知情下攜帶該行李箱入境香港。申請人否認控罪，其辯解是她被人欺騙把行李箱帶來香港，而她是完全不知道行李箱內暗藏涉案的危險藥物。

On 4 April 2014, the applicant was convicted unanimously after trial before A Chan J (“the trial judge”) and a jury.  On 7 April 2014, the trial judge sentenced her to 23 years and 6 months’ imprisonment.  Mr Leung Chun-keung, counsel for the applicant, made an application on her behalf, seeking leave to appeal against conviction.
申請人在高等法院原訟法庭陳慶偉法官（原審法官）會同陪審團席前受審。2014年4月4日，經審訊後，陪審團一致裁定申請人罪名成立。2014年4月7日，原審法官判處申請人入獄23年6 個月。申請人不服定罪，由梁振強大律師提出申請，要求獲准就定罪上訴。

prosecution’s case
控方案情

The prosecution called six witnesses.  Their evidence can be summarized as follows:
控方傳召六名證人作證，他們的證供可簡述如下。

On 17 January 2011 around 8:15 pm, the applicant arrived at the Hong Kong International Airport on AirAsia from Kuala Lumpur, Malaysia.  At the arrival hall of the airport, Chief Customs Officer Ngan Wai-lan (PW1) stopped the applicant for inspection.  The applicant was carrying a red suitcase at that time.  After the applicant was brought into a “clearance room”, Customs Officer Ng Yuk-cheung (PW2) directed her to open the suitcase.  He saw the applicant turn the dial of a combination lock, open the suitcase and take out her personal belongings. PW2 held the suitcase in his hand and found it to be very heavy, he therefore inspected the rim of the suitcase and spotted a piece of cardboard.  PW2 lifted the cardboard and saw something in silver colour on the four corners of the suitcase.  He pierced one of the packets with a bamboo skewer, and the skewer was stained with white powder, which tested positive for heroin in a quick drug test.  PW2 then notified Customs Officer Lau Wing-chi (PW3) to arrest the applicant.
2011年1月17日晚上約八時十五分，申請人乘坐亞洲航空公司的航班由馬來西亞的吉隆坡飛抵香港國際機場，在機場入境大堂被控方第一證人海關總關員顏惠蘭截停作抽查；當時申請人手挽一個紅色行李箱。申請人被帶入一間搜查室後，控方第二證人關員吳毓祥示意申請人打開行李箱。他看見申請人轉動數字鎖，然後把行李箱打開，然後把她的個人物品取出來。控方第二證人手挽行李箱，覺得好重；於是檢查行李箱的圍邊，看見有一塊紙板。控方第二證人揭開紙板後看見行李箱四角有銀色東西，他用竹簽刺破其中一包，竹簽上沾有白色粉末。經過毒品快速測試後，白色粉末對海洛英呈陽性反應。控方第二證人遂於是知控方第三證人關員劉詠芝把申請人拘捕。

The dangerous drug seized from the suitcase was 1.44 kilogrammes of mixture containing 0.96 kilogramme of heroin hydrochloride, of a street value of HK$1,046,880.00 in January 2011.
從行李箱搜獲的危險藥物是內含0.96公斤海洛英鹽酸鹽的1.44公斤混合劑，在2011年1月的零售價是港幣1,046,880.00 元。

Video recorded interview
錄影會面記錄

On 18 January 2011, the applicant voluntarily participated under caution in a video recorded interview conducted by Inspector Chan Wai-kam (PW6).  The applicant’s testimony in court was by and large consistent with the account she gave in the interview.
2011年1月18日控方第六證人陳偉鑫督察替申請人進行錄影會面，申請人自願地在警誡下接受會見。申請人在會面中的陳述與她在庭上的證言大致相同。

Defence case
辯方案情

The applicant elected to give evidence but called no defence witnesses.
申請人選擇作供自辯，但沒有傳召其他辯方證人。

It was the applicant’s testimony that she was from Sichuan with no criminal records.  In February 2010, she got acquainted with an African male called David who ran a business of electronic components and since then there were occasions they met and talked.  The applicant looked for David at his shop by visiting the address on the business card provided by him.  She found that it was a shop selling clothes.  In June 2010, David arranged to meet the applicant, asking her if she had got a passport and requesting her to take some clothing samples back to the mainland.  David said that he tried to deliver clothing samples to the mainland in vain and hoped that the applicant could help him.  As the applicant had just broken up with her boyfriend, she wanted to get away for a break and to broaden her horizons, she acceded to David’s request.  The applicant did ask David whether the trip to Malaysia was for doing something illegal, and by ‘illegal’ she meant in mind being a “hostess”. David replied in denial.  Subsequently, the applicant handed her passport to David for him to make visa arrangements for her.
申請人說，她是四川人，沒有任何刑事定罪紀錄。2010 年2月份，她認識一名非洲籍男士David，他從事電子零件生意。他們雙方有見面和傾談。申請人根據David所提供的名片地址到他的店舖找他，發現那裏是賣衣服的。2010年6月，David相約申請人，問她有沒有護照，並要求申請人從外地攜帶一些衣服樣辦返回內地。David說他曾試過把衣服樣辦運返內地但不成功，所以希望申請人能幫他。當時申請人和男朋友剛分手，她想出外散心和見識，所以答應David。申請人曾詢問David到馬來西亞是否做一些犯法的事，她心中所想的是做「小姐」，David否認。之後，申請人把護照交給David代為辦妥簽證事宜。

From June 2010 to January 2011, the applicant made a total of five trips to Malaysia for each of which David gave her several hundred US dollars.  On the first trip to Malaysia, the applicant followed David’s instructions to contact a black male called CY alias William by phone.  CY gave the applicant a suitcase containing some clothing samples.  The applicant took the suitcase back to the mainland and handed it to David.  In August 2010, David asked the applicant to make a trip to the Philippines, but the applicant did not take any clothing samples back to the mainland on that occasion as she failed to get in touch with the local contact person. The arrangements made for the second and the third trips to Malaysia were similar to those on the first one, and David gave the applicant a reward of Renmenbi 10,000 in total for these two trips.  Subsequently, David asked the applicant to introduce a friend of hers to take clothing samples from Southeast Asia.  She therefore introduced a friend called Tang Dan-dan [transliteration] to David.  In November 2010, the applicant made the fourth trip to Malaysia where happenings were similar to those of the three preceding trips.
2010年6月至2011年1月期間，申請人共五次去馬來西亞，每次David都會支付她數百美元。申請人首次去馬來西亞時，她依照David的指示，致電聯絡一名叫CY又名William的黑人。CY給申請人一個行李箱，內裏有衣服樣辦。申請人便攜帶這個行李箱返回內地交給David。2010年8月，David要求申請人去菲律賓，可是申請人未能聯絡當地的接洽人，所以沒有攜帶衣服樣辦返回內地。她第二和第三次去馬來西亞與首次的安排差不多。這兩次David給申請人共人民幣10,000.00元作酬勞。之後，David叫申請人介紹她的朋友去東南亞拿取衣服樣辦，申請人便介紹她的朋友唐丹丹給David認識。2010年11月，申請人第四次去馬來西亞，情況跟先前的三次相同。

Regarding the trip in question, David contacted Tang Dan-dan first.  On 29 December 2010, the applicant received a text message from a black man called Prince, telling her that someone would contact her.  Subsequently, another black man called Best contacted the applicant, asking for the passports of the applicant and Tang Dan-dan.  On 13 January 2011, Best called the applicant, saying that he had already bought air tickets for the applicant and Tang Dan-dan for them to travel to Malaysia in the afternoon.  Best handed the passports, air tickets and US dollar banknotes to them.  After their arrival in Malaysia, Best called the applicant, telling her that another black man called Mike would contact her on that occasion.  On 17 January, Mike met the applicant at the hotel she stayed.  Mike handed to her a suitcase containing some clothing samples.  The applicant opened the suitcase in which she saw some folded clothes, and she also put her own clothes into it.  The applicant did not notice if the suitcase had a combination lock.  On the same day, the applicant took the suitcase back to Hong Kong.
就涉案的旅程，David先聯絡唐丹丹。2010年12月29 日，申請人收到一個名叫Prince的黑人發出的短訊，告訴申請人將會有人與她聯絡。之後，又有一個叫Best的黑人聯絡申請人，要求索取她和唐丹丹的護照。2011年1月13日，Best致電申請人表示已買了機票，下午時分申請人和唐丹丹可前往馬來西亞。Best把護照、機票和美金交給他們。到達馬來西亞後，Best致電申請人告訴她今次會有另外一個黑人Mike與她聯絡。1月17日，Mike在申請人住的酒店和她見面。Mike把一個內有衣服樣辦的行李箱交給申請人。申請人打開行李箱看見內裏已經有摺好的衣服，就把自己的個人衣服也放進裏面。申請人沒有留意行李箱有沒有數字鎖。同日，申請人攜帶該行李箱來港。

Issue at trial
爭議議題

As stated above, the issue in the present case was whether or not the applicant knew that the dangerous drug, the subject matter of the charge, was concealed in the suitcase she brought into Hong Kong on 17 January 2011.
正如上文指出，案件的爭論議題是申請人是否知道在2011年1月17日帶到香港的行李箱內藏有涉案的危險藥物。

Grounds of appeal
上訴理由

Mr Leung, counsel for the applicant, advanced three grounds of appeal on her behalf:
梁大律師提出三個上訴理由：

The first ground of appeal is that the trial judge erred in law as he failed to discharge the jury upon application by the defence, thereby causing the jury to be irremediably biased against the applicant and, depriving the applicant of a fair trial.
第一上訴理由是原審法官犯了法律上的錯誤，沒有應辯方的申請，解散陪審團，令陪審團對申請人產生不可補救的偏見，又令申請人不能得到有一個公平的審訊。

The second ground of appeal is that the trial judge had by his intervention in the examination of the applicant entered the arena and it would have caused an informed bystander listening to the case to find that the applicant had not had a fair trial.
第二項上訴理由是原審法官參與盤問申請人時，沒有保持客觀的態度，令一名聆聽案件及知情旁觀者認定申請人沒有獲得一個公平的審訊。

The third ground of appeal is that the trial judge misdirected the jury that they might infer, from the applicant’s attitude of having refrained from inquiry and shut her eyes to the obvious, and deliberately chosen not to make confirmation, that the applicant knew about the drug trafficking.
第三上訴理由是原審法官錯誤地引導陪審團可以把申請人對一些顯而易見的情況採取不聞不問、視若無賭、故意不去核實的態度來推論申請人是販運毒品的知情者。

Discussion
討論

Ground of appeal (1)
上訴理由（1）

The applicant said in the video recorded interview that Tang Dan-dan and she were both hired by David to perform the duties of taking clothing samples from Malaysia to China via Hong Kong, and that Tang Dan-dan’s return trip was scheduled for two days after hers.  At trial, the trial judge asked Inspector Chan Wai-kam (PW6) whether he followed up on the information provided by the applicant in relation to Tang Dan-dan.  PW6 replied that Tang Dan-dan did not come to Hong Kong on or after the 19th day.  Mr Leung then cross-examined PW6 on this point, to which PW6 repeated the same answer.  On the following day, Mr Leung made an application to discharge the jury on the basis that PW6’s evidence had done grave injustice to the applicant.  The trial judge refused the application on the ground that it would suffice, if sufficient directions were given to the jury.  Upon the jury returning to the court, the trial judge directed them to forget PW6’s evidence given in regard to Tang Dan-dan.  The foreman of the jury indicated that it was understood.  The trial judge repeated the same direction to the jury in his summing up.
申請人在錄影會面中表示，唐丹丹和她同樣受僱於David，兩人職責同是從馬來西亞帶衣服樣辦經香港回國，只是今次唐丹丹的回程日期比申請人遲兩天。審訊時，原審法官向控方第六證人案件督察陳維蔭提問，他有否跟進申請人所提供有關唐丹丹的資料。控方第六證人回答說，唐丹丹沒有在19日或之後來到香港。梁大律師跟著就此盤問控方第六證人，他重覆同樣的說法。翌日，梁大律師向原審法官申請，要求解散陪審團，因為第六證人的證供對申請人嚴重不公，但申請遭原審法官拒絕。原審法官認為只需向陪審團發出足夠的指引便可。當陪審團再出席後，原審法官即時指引陪審團忘記控方第六證人有關唐丹丹的供詞，首席陪審員表示明白。原審法官在最後指引陪審團時，亦重覆同一的指引。

Mr Leung contended before this court that after the jury had heard that Tang Dan-dan did not come to Hong Kong on the 19th day as scheduled, they would readily infer that Tang Dan-dan knew that the applicant had been arrested in Hong Kong.  If Tang Dan-dan was also manipulated as was the applicant, she should have arrived at Hong Kong as scheduled.  She did not come though, which showed that she also knew about the drug trafficking.  Given the fact that Tang Dan-dan was introduced by the applicant, if Tang Dan-dan knew about the drug trafficking, how could the applicant be innocent?  Mr Leung also argued that PW6’s evidence given in regard to Tang Dan-dan would have caused serious bias against the applicant among the jury.  It was insufficient for the trial judge to simply direct the jury to “forget”.  The failure of the trial judge to discharge the jury had done grave injustice to the applicant.
梁大律師向本庭力陳，陪審團聽到唐丹丹沒有在19日如期到港之後，不難聯想到這是因為她已知道申請人在港被捕，因為若唐丹丹也和申請人一樣只是被人利用，她理應依照原定計劃到港，她卻沒有這樣做，這顯示她是一名販運毒品的知情者；唐丹丹既是申請人介紹的，若她對販運毒品是知情，則申請人怎麼可能是無辜的。梁大律師說，第六證人有關唐丹丹的證供會令陪審團對申請人產生嚴重偏見，原審法官只是對陪審團作出「忘記」的指引並不足夠，他沒有解散陪審團對申請人造成嚴重的不公。

The applicable legal principle is that whether or not to discharge a jury is a matter for the discretion of the court in the light of the actual circumstances of a particular case, and the court of appeal will not readily interfere with the court’s approach to the exercise of that discretion, see HKSAR v Nee Man Tik，CACV 220/2003, unreported, 28 October 2004, per Stock VP at paragraph 8.  What the court of appeal is to be concerned is that under the actual circumstances of that particular case, whether injustice would have been caused to the defendant by not discharging the jury.
適用的法律原則是，法庭有酌情權決定是否需要散陪審團，至於如何行使這酌情權，法庭需要考慮案件當時的實際情況而定；對於原審法庭如何行使酌情權，上訴法庭不會輕易干涉：見HKSAR v Nee Man Tik，CACV 220/2003（未經彙報），2004年10月28日的判案書，上訴庭副庭長司徒敬的判詞第8段。上訴法庭要關注的是，在案件的實際情況下，到底沒有解散陪審團會否對被告人造成不公。

In the present case, any contentions suggesting the mere fact that Tang Dan-dan did not to come to Hong Kong on the 19th day as scheduled has caused bias against the applicant must fail because the reasons leading to that fact could be manifold, and it does not mean or make one think that she was a drug-trafficker in the know.  Furthermore, the way that the trial judge gave directions to the jury for twice that they had to forget PW6’s evidence on Tang Dan-dan, according to which the jury must have acted, was sufficient to cast away any doubts or concerns that the jury might have about the evidence in question.  We consider that, in light of all the surrounding circumstances, the trial judge’s approach to PW6’s evidence on Tang Dan-dan was correct and the decision of not discharging the jury would not have caused injustice to the applicant.  We would not interfere with this decision.
在本案中，唐丹丹沒有如期在19日到港可以有多種原因，不代表也不會另人聯想到她是知情的犯毒者，任何所謂的偏見並不成立。再者，原審法官兩次給予陪審團要忘記第六證人有關唐丹丹證供的指引，而陪審團亦必然有根據此指引行事；這足以驅走陪審團對這些證供可能有的疑慮或關注。本庭認為，綜觀所有有關情況，原審法官處理第六證人有關唐丹丹證供的做法正確，他沒有解散陪審團不會對申請人造成不公，本庭對此決定不會干涉。

For this reason, Ground (1) must fail.
因此，第一個上訴理由不成立。

Ground of appeal (2)
上訴理由（2）

Mr Leung submitted that the trial judge put questions to the applicant in both examination-in-chief and cross-examination, including:
梁大律師指原審法官在主問和盤問時對申請人提出提問，包括：

“Examination-in-chief
主問期間

Well, do you find it strange? He was engaged in the electronics business, as we can see it from his business card, being engaged in whatchamacallit construction materials and the like, but what he asked you to bring back were clothes.
咁妳覺唔覺得奇怪呢？因為佢做電子生意架嘛，即係我哋睇到佢嘅卡片，做呢個咩嘢建築材料嗰啲咁嘅嘢，咁但係佢叫妳帶衫喎。

But there was a chance that (you) were required to do something illegal?
但係有機會要（妳）做一啲非法嘅嘢架喎？

…so you said that this David told you to go to Malaysia and not to wander around, because--and not to talk to any strangers.  But you said that you were meant to make the trip out for a break and to get to see other places, whereas he told you not to wander around or talk to anyone, that would have run counter to the purpose of making the trip out, right?
…咁妳話呢位David就叫妳去咗馬來西亞，就唔好周圍走喇，因為--又唔好同陌生人講嘢，咁但係妳出國嘅目的就係去散心，去認識下其他嘅地方，咁佢叫妳又唔好周圍走，又唔好同人傾偈，咁咪同叫妳出去嘅目的咪相違背？

Do you find it strange? David was so eager to have the suitcase back?
有冇覺得奇怪呢？David咁心急要番個喼？

(500 US dollars of pocket money, hotel accommodation inclusive) isn’t it a meagre amount of money?
(500鈫美金零用錢，包埋住酒店)咁好少錢架咋噃？

Well, do you find it strange? Why was an unwanted suitcase used on every occasion?
咁妳覺唔覺得有啲奇怪呢？點解次次都用唔用嘅箱？

Well, do you find it a very good deal?..Why wouldn’t it occur to you? You got a pay rise once you asked your boss for it, why so good?
咁妳覺唔覺得好著數呢？…點解會冇諗？一問老闆加人工就加喎，咁好嘅？

…why didn’t you know that your boyfriend--that is the David who courted you, was not in the mainland at that time?  You saw him as frequently as twice a week.  Why were you in total ignorance of the fact that he was-- you actually had no idea of his whereabouts?
…點解妳唔知道妳男朋--即係追妳嗰個David嗰陣時唔喺國內？妳同佢一個星期見兩次架喎，點解妳完全都唔知道佢原來都唔知道去咗邊度？

Well, on the way back to Hong Kong, while you were on board a taxi or a coach with Dan-dan, have you ever discussed, “why shall we return at different times?”…as you made the trip out together, you should have made the trip back together as well….but in fact, when you returned on the 17th, you only saw half a suitcase of clothes, well, have you ever wondered why two persons were required to take back only half a suitcase of clothes?...even if the trip was made by only one person who would carry more baggage, I think it would be cheaper than a trip made by two, as you only needed to check in baggage, you just needed to pay anyway, when you went on the trip to carry baggage on your own, right?  Now you two made the trip and each required as much as five to six thousands Renminbi, the reward.  (Prosecutor: And also air tickets, My Lord.)
咁你哋有冇即係同丹丹喺坐的士，坐大巴落嚟香港嘅時候，有冇討論過「點解我哋兩個會唔同時間返嚟嘅？」…一齊去，咁梗係一齊返架嘛。…但係妳實際上17號返嚟嗰個時候，妳見到得半箱衫咋嘛，咁妳有冇諗下點解要兩個人去攞半箱衫返嚟？…一個人去攞多啲行李，我諗都平過兩個人去，妳寄艙咋嘛，還掂都要畀錢咋嘛，係咪？妳一個人去攞行李。妳兩個人去，要五六千鈫人民幣一個人架喎，報酬。（主控：仲有飛機票呢，閣下。）

Well, that means apart from that person claiming himself to be a friend of David’s, in fact you were not clear about who he actually was, right?...I know, so you have only met once, on the occasion where you had some personal belongings handed over, how well would you have known him then?...right, I mean, you didn’t know whether he was a good person or a bad person, right? (a friend of David’s)  And that necessarily meant that he was a good person?
咁即係除咗佢自稱David個friend之外，其實就真係佢哋究竟咩嘢人。妳都唔係好清楚架喎？…我知，咁妳咪見過一次囉，交收個人物品嗰個時候，咁有幾熟啫？…係囉，即係佢係好人唔好人妳唔知架喇？（David嘅朋友）就一定係好人架喇？

…did you not fear that it was up to something, such as pirated copies and the like?
…妳唔驚有啲嘢，譬如盜版嗰啲咁？

…(been to N7) the counter, even opened (the suitcase), at that time you did not know (there was a lock)?
…（去過N7）櫃檯，打開過（個行李箱）架喎，嗰陣妳都唔知（有個鎖）？

But such a big fuss was made for you to bring back stuff from Malaysia and you even did not know if there was a lock?
但係勞師動眾要妳去馬來西亞帶嘢返嚟喎，妳連有冇鎖都唔知？

…well, you have given an account on Dan-dan, right?  In your record of interview, well, you also told us that in fact you intended to tell the Customs & Excise about the people who would pick you up in Guangzhou, right?  But in the end, when the Customs & Excise asked if you had anything further to say, you did not tell them?
…咁妳就交代左丹丹喇，係咪？妳喺個會面紀錄嗰度，咁妳又話畀我哋聽，其實妳係想話畀海關聽廣州接妳嗰啲人喇，係咪？但係到最後。海關問妳仲有冇嘢想講嘅時候，妳又冇講嘅？

Cross-examination
盤問期間

Prosecutor:Well, when you gave him/her your passport, you had already decided to go to Malaysia, right? If not, you would not have given him/her your passport, right?
主控問：咁妳去畀個護照佢，妳已存心係去馬來西亞架喇，係咪？如果唔係，妳唔會畀護照佢喇，係咪？

Defendant:It was not the case either.  It was not exactly like this at that time…if David meant to cajole me into being a hostess, I definitely would not go…
被告：亦都唔係咁樣，當時亦都唔係完全咁樣架…如果David真係呃我去做小姐嘅話，咁我肯定唔去喇…

Court:I know, but he certainly would not have answered you, “yes, I am cajoling you into being a hostess”, right?...Exactly!  Well, I mean, in other words, you went  there just because you were going to give him your passport and you were minded to go on that trip as scheduled?
官：我知，不過佢一定唔會答「係呃妳去做小姐」架？…係囉，咁即係換句話嚟講，妳當時去就係一心要交個護照，亦都打算照去架喇？

Defendant:not true
被告：唔係

It seems that not until now that we have heard of it (David was single) for the very first time?
我哋到而家我哋先至第一次聽到（David未結婚）架咋喎，似乎？

Well, given 20 square meters, it’s only very small, well, with a glance, what else did you see apart from clothes? Did you see anything else, any electronic devices or electrical appliances, motor vehicle parts and the like which were totally different from clothes?
咁離20平方咪好細架之嘛，就妳一眼望落去除咗衣服之外仲有冇其他嘢妳見到電子、電器產品呀、汽車、零件個啲，同衣服完全都唔同嘅？

Well, did you think it was all of a sudden?...it was the first time you had travelled abroad and you suddenly had to go on the following day, and you did not think that it was all of a sudden?
即係妳唔覺得突然嘅咩？…第一次出國突然之間聽日就走喇喎，咁妳都唔覺得突然架？

As you were getting away for a break, so, let’s put it this way, as you were offered the opportunity, you would seize it, right? I mean, as such a person was so readily there, I mean, if I travelled to a certain place where a friend came to visit me, I would ask him about what tourists’ attractions were out there, what delicacies he would recommend, how to get around, by subway or taxi, and so on…I mean, what you meant was that you were not minded to ask that person about all these, even when such a person was so readily there, is that what you mean?
妳去散心吖嘛，即係有城隍廟，我哋叫做，都入去求番支籤吖，係咪？即係有咁方便嘅人，即係如果我去嗰一笪嘅地方有一個朋友嚟搵我，咁我都會問下佢，邊到有咩嘢玩呀，有咩嘢好食呀，點樣去呀，搭地鐵呀，的士呀，諸如此類呀…即係妳嘅意思就即係話妳唔打算問佢喇，即使有一個咁方便嘅人喺度，妳咪咁嘅意思呀？

Well, do you find that something was wrong? Look, the clothing samples should have been made ready for collection well before the time they were collected.
咁妳有冇覺得有問題嘅呢？喂，攞衣服樣板咁就應該一早做好晒去攞架喇。

…why was not CY told to bring the suitcase to you and instead, you--instead, he came over to the hotel you stayed to pick you up by car and drove you to his home, I mean, why took all these troubles?
…點解唔叫CY攞個箱去畀妳，而係要妳--而係要佢走嚟酒店車妳又去到佢個屋企嗰度，即係點解要大費周章咁樣樣做呢？

Court:well, that is, in other words, even when it was already the third occasion, you still did not have much-- that is, you still thought that CY might be a bad person, right?
官：咁即係換句話嚟講，去到第三次嘅時候，妳都唔係好--即係妳都仲係覺得呢個CY有機會係一個壞人嚟架喎，係咪？

Defendant:That’s not the case.  I did not know whether he was a bad person, I only feared that he would take advantage of me.
被告：唔係，我唔知道佢係咪一個壞人，我只係驚佢會佔我便宜。

Court:A man who take advantage of you is certainly a bad person, is that what you mean?
官：佔便宜就是一定唔係好人喇，係咪？

Defendant:But I still trusted David, and a friend of his should not be that kind of person.
被告：但係我仲相信David，佢嘅朋友唔係嗰種人喇。

Court:So, in fact he--so did you trust or did you not trust him?
官：咁究竟佢--妳信佢抑或唔信佢呀？

Defendant:I only trusted David.
被告：我只係信任David。

Court:Meaning you did not trust him.
官：即係唔信佢喇。

Defendant:Because he was a friend of his.
被告：因為佢係佢朋友呀。

Court:So, among your friends, there are some good ones, some relatively bad ones, and some very bad, right? It is not that a person being a friend of mine must be  good, or a person not being my friend must be bad.
官：咁妳朋友都有啲好，有啲差啲，有啲好衰架？唔係佢係我朋友就一定係好，或者佢唔係我朋友就一定衰架。

Defendant:Well, that I don’t understand.
被告：咁我唔了解呀。

Have (you) ever wondered why (David was not in Guangzhou at Christmas) he did not tell you, ordinary--if it was the case of ordinary friends, I can understand, but at that time he and you were quite intimate…, then it would be really strange, especially it was Christmas? ...suppose he gave up on courting you, he was still your superior anyway, look, he’s your boss.
（妳）冇諗過點解（David聖誕節唔喺廣州）唔話畀妳聽。一--一般朋友我都明白，但係妳同佢嗰陣時都幾親密架喎。。。咁好奇怪喎，尤其是聖誕節？…當佢放棄追求妳。不過佢亦都始終係妳嘅上司喎，老闆喎。

Don’t you think that it was necessary? I mean the boss suddenly disappeared, did you not think that it was necessary to find out what happened…as financial loss mattered a lot, right?
妳唔覺得有需要咩？即係老闆突然失蹤，妳唔覺得有需要去即係查究下咩嘢咁囉…因為經濟上嘅損失好緊要架喎？

…suddenly you were informed again that you had to go to…go to Malaysia again, and the samples were not given to you on the same day, you had to wait for a few days, they would only be given to you on the day you left…theoretically, I mean, under the circumstances, I would presume that all must have been settled beforehand, therefore you had to go there in a hurry, well, surely for getting stuff, but after arrival, that was not the case, you were just idling there again…it happened in the same way everytime…did this question ever occur to you, did it or did it not ?”
…突然之間又通知妳又要去…去到馬來西亞，又唔係即日畀辦妳架喎，又要妳等幾日架喎，妳走嗰日先至畀妳架喎…理論上，即係我會覺得咁就梗係安排好晒，要妳趕住去，梗係攞嘢喇，咁但係去到又唔係嘅，又係百無聊賴…次次去都係咁嘅…有冇諗過呢個問題呢，有冇？」

Mr Leung of Counsel cited The Queen v Yeung Mau Lam [1991] 2 HKLR 468 in support of his argument that the trial judge had by his questions entered the arena and it would have caused an informed bystander listening to the case to say that the applicant had not had a fair trial.
梁大律師引援The Queen v Yeung Mau Lam [1991] 2 HKLR 468，指原審法官向申請人發問時，沒有保持客觀的態度，令一個聆聽案件的知情旁觀者認定申請人沒有得到公平的審判。

Although Mr Edmond Lee, Senior Assistant Director of Public Prosecutions for the Respondent agreed with the legal principle on which Mr Leung relied, he contended that the trial judge only sought to ensure effective case management, he gave the applicant the opportunity to explain or clarify her evidence, and that his questions would have facilitated the jury’s consideration of the evidence in its entirety, it followed that an informed bystander listening to the case would not find the trial judge to be biased against the applicant or the applicant had not had a fair trial.  Mr Lee further contended that the applicant had testified for an extended period of three and a half days, whereas the judge’s questions formed only a very small part and that its impact on the evidence as a whole was insignificant.
代表答辯人的高級助理刑事檢控專員李俊文同意梁大律師所引援的法律原則，但指一個聆聽案件的知情旁觀者不會覺得原審法官對申請人有偏見，亦不會認為申請人沒有得到公平的審判，因為原審法官只是著緊於有效地管理審判，並且給予申請人機會解釋或澄清；他的提問有助陪審團考慮所有的證據。李專員又指，申請人作證的時間長達三天半，原審法官的提問只佔很少的篇幅，對申請人的整體證供影響不大。

We have carefully read through all the transcripts of the applicant’s evidence, with particular attention drawn to the relevant parts on which Mr Leung relied.  We have got the general impression that the trial judge put questions to the applicant not merely for the sake of case management or allowing the applicant to clarify her evidence, we instead find that quite a number of his questions for the applicant were put in a challenging tone, virtually sounding like cross-examination.  Although the trial judge’s questions were only a small portion of the applicant’s oral evidence as a whole, we must not overlook the potential impact that the tone and fashion in which his questions were put might have on the jury.  From an objective point of view, we consider that it would have caused an informed bystander listening to the case to find that the trial judge had bias against the applicant, and that the applicant had not had a fair trial.
本庭已詳細看過申請人口供的全部謄本，特別是梁大律師所依賴的部份。本庭得到的整體印象是，原審法官的提問並非單純為著案件管理或讓申請人澄清她的證言，反而不少是帶著質疑的口吻對申請人作出近似盤問的發問。原審法官的提問雖然只佔申請人全部證言的一小部份，但本庭不能忽略他提問的方式和口吻，對陪審團產生的可能影響。本庭認為，客觀地看來，一個聆聽案件的知情旁觀者會認定原審法官對申請人有偏見，而申請人亦沒有得到公平的審判。

For this reason, Ground (2) is sustained.
因此，第二個上訴理由成立。

Ground of appeal (3)
上訴理由（3）

The Judge’s summing up against which Mr Leung attacked is :
梁大律師投訴原審法官對陪審團的有關指引原文如下：

So, members of the jury, if the defendant has chosen not to ask any questions and shut her eyes to the obvious, and deliberately refrained from making confirmation, you, members of the jury, may draw an inference that the defendant didn’t want to confirm it because she actually did not have to; she in fact knew the existence of the drugs, to put it in colloquial terms, she ‘tacitly knew’ it.”
咁好喇，各位陪審員，假若被告人對一啲顯而易見嘅情況採取不聞不問、視若無睹，故意唔去核實嘅態度，各位陪審員係可以推論被告人唔想去核實係因為佢根本唔需要核實，因為佢根本就知道毒品嘅存在，正如我哋俗語所講「佢心知肚明」。」

In support of his view that either of the “shutting eyes” or “constructive knowledge” directions are not applicable to any drug-trafficking case, Mr Leung cited the case HKSAR v Yang Yulan [2013] 4 HKLRD 162, in which this court (differently constituted) said:
梁大律師的立場是，這「閉上眼睛」或「推定知情」的指引並不適用於任何販運危險藥物的案件。梁大律師引援本庭（不同組成）在香港特別行政區 訴 楊玉蘭 [2013] 4 HKLRD 162 的判詞：

We would like to take this opportunity to say that although in cases involving dangerous drugs, proof of “constructive knowledge” on the part of the defendant by the prosecution is sufficient to show the defendant’s knowledge, as Bokhary JA (as he then was) pointed out in the above case of Law Wai Choi (at page 561D), such knowledge of a material circumstance is rarely relevant and its relevance is confined to rare cases.
本庭在此一提，雖然在毒品案件，若控方能證實被告人有「推定知情」(constructive knowledge) 是可足以顯示被告人知情，但正如當時仍是上訴庭法官的包致金法官在上述Law Wai Choi (第561 頁D 行) 指出，「推定知情」有關鍵性的情況是罕見旳，而有關鍵性此情況亦局限於少數案件 (But such knowledge is rarely relevant.  And its relevance is confined to rare cases …)。

If all the circumstances faced by a defendant were very suspicious and he deliberately shut his eyes to the circumstances at the material time, it might be construed that he had the knowledge but this is not necessarily the only finding (see R v Griffiths (Leslie George) (1974) 60 Cr App R 14).
若一名被告人面對的所有情況是非常可疑，而他故意對當時的情況視若無睹 (shut his eyes)，他可以被裁斷為知情，但這並非必然的裁斷 (參閱案例R v Griffiths (Leslie George) (1974) 60 Cr App R 14)。

Since “constructive knowledge” is rarely involved in dangerous drugs cases, unless the facts clearly showed that the defendant had deliberately turned a blind eye to the suspicious circumstances, it is not appropriate for judges to give general directions to the jury on “constructive knowledge”.
基於毒品案件涉及「推定知情」的情況並不常見，因此除非案情明確顯示被告人是故意對可疑的情況視若無睹，法官不宜向陪審團作出有關「推定知情」的一般指引。」

Mr Leung submitted that it was true that the applicant failed to ask David questions in many respects, to which she gave the explanation that those questions did not occur to her at that time, and it was mostly for the same reason, as suggested by the defence, that she ended up being manipulated.  However, the trial judge gave the direction to the jury that they should return a verdict of not guilty if they believed that the applicant’s version was or could be true on the one hand, and on the other, the judge also directed the jury that the applicant having refrained from inquiry as to the obvious could be construed to mean that she tacitly knew it.  In the circumstances where the jury accepted the applicant’s evidence but had reservations about whether she had the knowledge, the jury might have drawn the inference due to “constructive knowledge” direction given to them, that the applicant did have the knowledge.
梁大律師說，申請人確實就很多方面沒有向David發問，她的解釋是她當時沒想到這些問題，這當然亦是辯方指被告因此最終被利用的主要原因。可是，原審法官一面指若陪審團相信申請人的說法是真或有可能是真便要判她無罪，但另一方面亦指示若申請人對一些顯而易見的情況不聞不問，陪審團可推論她是心知肚明；若陪審團接納申請人的供詞，但對她是否知情則有所保留，在這情況下，陪審團有可能因為這「推定知情」指引而推論她是知情的。

Mr Leung submitted that the only issue in dispute in the present case was whether the applicant had been deceived, whereas the prosecution took the view that there had been no deception whatsoever as alleged by the applicant.  Mr Leung argued that on the facts of the present case, the applicant’s explanation could not be said to be “absurd”, nor was there evidence to show that she was highly suspicious of the circumstances.  Therefore, it was uncertain as to whether it simply did not occur to her to inquire, she was deceived by David, or the circumstances at the material time were not obvious to the applicant as an involved party in this matter.  Mr Leung argued that these issues were actually not very clear in the present case and would therefore be a matter for the jury.  He submitted that, for these reasons, the present case was not a manifest case of “refraining from inquiry”, and that under these circumstances, it was not appropriate for the judge to give the said direction to the jury, causing them to wrongly believe that they might infer, on the mere fact that the applicant did not inquire in many respects, that the applicant “had the knowledge”.
梁大律師指出本案唯一爭辯議題就是申請人是否受騙，而控方的立場是根本沒有她所謂的騙局。梁大律師認為，以本案的案情而言，申請人的解釋並不可以說是「荒謬」，亦沒有證據指她當時對此事充滿懷疑；所以究竟她是否只是不懂得問、是否當時只是受到David的蒙蔽還是或者當時的環境情況作為一個當局者來說並不是顯而易見。梁大律師認為這些議題在本案實在並不是非常清晰，需要陪審團的決定；因此，本案並不是那些明顯不過「不聞不問」的案件。梁大律師力稱在這情況下，原審法官給予這上文提到的指引並不適當，亦會令陪審團錯誤地認為單以申請人在很多方面沒有查問便可推斷她是「知情」。

As said in HKSAR v Mohammed Saleem [2009] 1 HKLRD 369 per Stuart-Moore VP at paragraphs 36-39: It is for the prosecution to prove its case beyond all reasonable doubt that a defendant being charged with trafficking in dangerous drugs had the knowledge that what he was carrying were dangerous drugs.  In respect of the defendant’s knowledge, a test is to be applied to the defendant’s actual subjective knowledge.
控方有舉證責任，在毫無合理疑點下證明一名被控非法販運危險藥物罪行的被告，知悉他所所販運的東西是危險藥物。就被告人的知悉而言，驗證的標準是他本人主觀實際的知悉：見 HKSAR v Mohammed Saleem [2009] 1 HKLRD 369，上訴庭副庭長司徒冕的判詞第36-39段。

In cases where there is no direct evidence to prove that the defendant had the knowledge that what he was carrying were dangerous drugs, the prosecution can still rely on circumstantial evidence to invite the tribunal to draw the only irresistible inference that the defendant had the knowledge that what he was carrying were dangerous drugs. Under these circumstances, it was necessary for the judge to give the jury the proper direction.  What it is meant by “proper” depends on the actual circumstances of each case, but at least it has to be pointed out that any inference must be drawn from the proved facts.
當控方沒有直接的證據去證明被告知悉他所販運的東西是危險藥物，仍可依賴環境證據，要求審裁機構作出唯一及無可抗拒的推論，被告本人知悉他所販運的東西是危險藥物。在這樣情況下，法官必須對陪審團作出適當的指引。何謂適當的指引要視乎案件的實際情況而定，但最起碼的是要指出任何的推論必須是根據已證明的事實方可。

The judge also needs to point out to the jury that suspicion does not equate to knowledge.  Even if the defendant suspected that what he was carrying to be something illegal or even dangerous drugs, the judge still has to direct the jury that the defendant’s suspicion is not to be equated to his having subjective knowledge of what he was carrying were dangerous drugs.  When the dangerous drugs were concealed in another object, the judge must cautiously refrain from suggesting to the jury that the defendant’s failure to avail himself/herself of the opportunity to inspect the contents of that object means, or be construed to mean that the defendant had the subjective knowledge of its contents, although in some cases, the judge may direct the jury that, along with the other evidence, an inference of subjective knowledge might be drawn against the defendant from his/her failure to do so. See Liu JA’s judgment in The Queen v Law Wai Choi & Another [1997] HKLRD 555, at page 558 lines G-H.  We must however reiterate that such direction is not relevant in every drug-trafficking case.  Whether such direction is required is dependent on the actual circumstances of the case.  As said by Bokhary JA (as he then was) in the same judgment at page 561 lines C-E, it is only rarely that such a direction is warranted.
法官亦需向陪審團指出，懷疑並不等於知悉。即使被告人懷疑他所販運的東西是非法的東西或甚至是危險藥物，法官仍必須指引陪審團，被告人的懷疑並不等於他主觀知悉那些東西就是危險藥物。當涉案的危險藥物是藏在另一個物體裡時，法官必須小心避免向陪審團提議，被告人當有機會卻沒有檢查該物體所藏有的物品是甚麼，就等於或可視被告人主觀知悉該物體所藏有的物品是甚麼；雖然在合適的案件裡，法官可以指引陪審團，他們可以考慮被告人沒有那樣做這一點，連同其他所有的證據，作出他主觀知悉的推論：見 The Queen v Law Wai Choi & Another [1997] HKLRD 555，上訴法庭法官廖子明的判詞第558頁G-H行。但是本庭必須重申，不是每件非法販運危險藥物的案件，法官都需要作出這樣的指引，是否需要全看案件的實際情形而定；正如上訴庭法官包致金（當時官階）在同一案例第561頁C-E行指出，只有在極其罕見的案件中才需要作出這樣的指引。

We have carefully perused the trial judge’s summing-up to the jury in its entirety and noted that the trial judge categorically gave the jury the “shut-eye” or “constructive knowledge” directions, as mentioned hereinabove at para 24, when he dealt with the issues of “suspicion”, circumstantial factors and circumstantial evidence.  In our judgment, which is agreed by Mr Lee for the Respondent, on the facts of the present case, the trial judge was not required to give such a direction.  We are of the view that such unwarranted direction given by the trial judge would have probably misled the jury into believing that they might find, on the mere fact that the applicant found the circumstances suspicious but have refrained from inquiry or shut her eyes to those circumstances, that the applicant knew that the dangerous drugs in question had been concealed in the suitcase she was carrying.
本庭仔細看過原審法官對陪審團指引的全部內容，留意到原審法官是在處理「懷疑」、環境因素和環境證據這議題時，特別作出上文第24段所謂的「閉上眼睛」或「推定知情」的指引。本庭認為而李專員亦同意，從本案的案情看來，原審法官其實無需作出這樣的指引。本庭認為，這樣不需要的指引很有可能會令陪審團誤認只要申請人有懷疑但採取不聞不問、視若無睹的態度，他們便可以裁定申請人是知悉她攜帶的行李箱內藏有涉案的毒品。

For this reason, Ground (3) is sustained.
因此，第三個上訴理由成立。

It may be mentioned in passing that, the application of the concept of “constructive knowledge” should be approached with great care in drug-trafficking cases.  Such concept must not be confused with that in Civil Law.  In Civil Law, under some specific circumstances, even a person lacking in actual knowledge may still be presumed to have knowledge in respect of specific issues under the concept of constructive knowledge.  But this approach is strictly disallowed in drug-trafficking cases.  “Constructive knowledge” in drug trafficking cases means that, in fact, it is only very rarely that, the tribunal may draw an inference of the defendant’s subjective knowledge from the actual circumstances of the case, but it definitely does not mean that the defendant may be presumed to have the knowledge when he/she actually does not.
本庭順帶一提，在販毒的案件裡引用「推定知情」這概念時應當十分小心，千萬不要把它和民事法下的constructive knowledge （法律構定的知悉）的概念混淆。在民事法下，在某些特定的情況，即使某人對某事真的不知情，仍可以constructive knowledge的概念，就某一特定議題，算作他是知情的。但在販毒案件中這樣的做法是絕不容許的。在販毒案件中的所謂「推定知情」，其實只是指在罕有的案件中，審裁機構可以根據實際案情作出被告人主觀知情的推論，但這絕不是說當被告人真的是不知情時，仍可以把他算作是知情的。

Conclusion
結論

For the above reasons, we grant the applicant’s application for leave to appeal against her conviction and, treating her application as the appeal proper, the appeal is allowed.  The conviction is quashed and sentence set aside.
基於上述原因，本庭批准申請人之上訴許可申請，視之為正式上訴，並判上訴得直，撤銷有關控罪和刑期。

In view of the seriousness of the offence in the present case, we need to consider whether a retrial should be ordered.  It is hereby directed that both parties shall submit to this court their written submissions on this issue within 14 days, subsequent to which we would deal with it in writing.  The applicant shall continue to be remanded in jail custody pending further order of this court.
本案涉及的罪行十分嚴重，本庭需要考慮是否命令重審。本庭現指示雙方就這議題，在14天內向本庭交書面陳詞，本庭之後將會以書面形式處理。期間，申請人繼續還柙，等候本庭進一步命令。

Mr Leung Chun Keung, instructed by Wong & Co., Solicitors and assigned by the Legal Aid Department, for the applicant
答辯人：由律政司高級助理刑事檢控專員李俊文代表。

Mr Edmund Lee, SADPP, of the Department of Justice, for the respondent
申請人：由法律援助署委派黃律師事務所轉聘梁振強大律師代表。