Hon Madam Justice PANG (giving the judgment of the Court):
高等法院原訟法庭法官彭寶琴頒發上訴法庭判案書：

Background
背景

The Applicant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, Laws of Hong Kong.  In the Particulars of Offence, it was alleged that the Applicant, on or around 8 January 2018, together with TSANG Yiu Fai (transliteration) and other persons unknown, unlawfully trafficked in 497 grammes of powder containing 424 grammes of ketamine.
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。控罪詳情指申請人於或約於2018年1月8日連同曾耀輝及其他身份不詳的人，非法販運內含424克氯胺酮的497克粉末。

The Applicant pleaded not guilty to the charge and the case was tried before Deputy High Court Judge Anthony Kwok (the Trial Judge) sitting with a jury.
申請人否認控罪，案件由高等法院原訟法庭暫委法官郭啟安（原審法官）連同陪審團審理。

On 28 February 2019, the jury found the Applicant guilty of the offence by a verdict of 5 to 2. On 15 March 2019, the Trial Judge sentenced the applicant to a term of imprisonment of eight years and eight months.
陪審團於2019年2月28日以5比2裁定申請人罪名成立。2019年3月15日，原審法官判處申請人8年8個月監禁。

The Applicant now applies for leave to appeal against his conviction.
申請人不服定罪，提出上訴許可申請。

The Prosecution Case
控方案情

During the trial, the prosecution case was, for the most part, including the Applicant’s video-recorded interview under caution, the Applicant’s phone communication records and the testimonies of five witnesses called by the prosecution, not disputed.
審訊時，大部份的控方案情不受爭議，包括申請人在警誡下的錄影會面紀錄、申請人的電話通訊紀錄及控方傳召的5 名證人的證供。

In short, on 5 January 2018, during an X-ray scan on express air cargo at the Customs import cargo examination compound of the Hong Kong International Airport, a Customs Officer found a suspicious parcel sent to Hong Kong from Thailand transiting through Singapore.  On the same day, the Customs Officer opened the parcel and found 15 handbags inside.  Each handbag contained a packet of crystalline substance, which, upon chemical examination, was confirmed to be the subject dangerous drug in the case.  The Customs Officer then restored the parcel to its original state.  At a later time on that day, another Customs Officer delivered the parcel to a secretarial company located at Hoi Yuen Road, Kowloon according to the address on the parcel.  The secretarial company received the parcel on behalf of a client, Mr YAU (transliteration) of Jenny’s Fashion Limited.
簡而言之，海關關員於2018年1月5日在香港國際機場海關入口驗貨場為空運速遞貨物作X光掃瞄期間，發現一個可疑包裹，該包裹由泰國寄出，經新加坡轉運香港。同日，海關關員打開包裹，發現內有15個手袋，每個手袋都藏有1包晶狀物體，經化驗後證實是涉案毒品。海關關員繼而將該包裹還原。當日較後時間，另一名海關關員根據包裹上的地址將包裹送到一間位於九龍開源道的秘書公司，該秘書公司是代客戶Jenny’s Fashion Limited的丘先生收取包裹的。

Around 2:40 p.m. on 8 January 2018, the Applicant, having signed for and collected the parcel in question at the secretarial company, was immediately arrested by a Customs Officer in the corridor outside the door.  The Applicant stated under caution that someone instructed him to collect that parcel, and he could earn a reward of several hundred dollars, but he had no knowledge of the contents of the parcel.
2018年1月8日約下午2時40分，申請人在該秘書公司簽收及成功領取了包裹。申請人隨即在門外走廊被一名海關關員拘捕。申請人在警誡下表示有人指使他去接收該包裹，而他可以賺取數百元的報酬，但他對包裹內的物品並不知情。

The Applicant later agreed to let the Customs Officer check the communication records and message records on his mobile phone, and to assist the Customs Officer in conducting a controlled delivery operation.  During the enquiries, the Applicant’s mobile phone rang. It was a call from a person named “Chung Loi (transliteration)” using WeChat, but the Applicant told the Officer that “Chung Loi” had nothing to do with the case.  However, “Chung Loi” kept on calling, and six calls in total were made within a short time, but the Applicant did not answer any of them.  Eventually, shortly after 3:07 p.m. that day, the Applicant told the Customs Officer that “Chung Loi” was the person who instructed him to go to the secretarial company to collect the parcel.
申請人其後同意讓海關關員檢查他手提電話內的通訊紀錄及訊息紀錄，又同意協助海關關員進行監控派遞行動。調查期間，申請人的手提電話響起，是一名叫「重來」的人用微信致電，但申請人向關員表示「重來」跟案件無關。然而，「重來」繼續致電，並在短時間內先後六次來電，但申請人均沒有接聽。最終，大約在當日下午3時07分後，申請人才告訴海關關員「重來」就是指使他往秘書公司接收包裹的人。

During the controlled delivery, “Chung Loi” again called the Applicant with WeChat for a number of times. He kept giving instructions to the Applicant and hurried the Applicant into handing over the parcel to the contact person.  Meanwhile, the contact person told the Applicant repeatedly over the phone that there were police vehicles near the location intended for handover, and therefore he was unwilling to meet the Applicant.  Having dawdled for a while, the Applicant and the contact person eventually agreed to meet near Yuet Wah Street, Kwun Tong for the handover.
在進行監控派遞期間，「重來」再多次用微信致電申請人，並不停對申請人作出指示及催促申請人將包裹交到接洽人手上。另一方面，接洽人多次在與申請人通話時表示，交收地點附近有警車，所以不願意與申請人見面。幾番拖拉後，申請人與接洽人終同意在觀塘月華街附近交收。

Around 5:50 p.m. on the same day, when the Applicant handed the parcel to the contact person, a Customs Officer arrested the contact person, who was the person named in the indictment, TSANG Yiu Fai.
同日下午約5時50分，當申請人將包裹交到接洽人手上時，海關關員便將接洽人拘捕，這人便是公訴書上所列的曾耀輝。

On 9 January 2018, a video-recorded interview was conducted between the Applicant, in his mother’s company, and a Customs Officer.  In the video-recorded interview, the Applicant asserted that he had no knowledge at all of the dangerous drug in the parcel.  The Applicant also stated that he was a Form 6 student and he would work part-time after school.  In December 2017, he came to know “Chung Loi” from a post in an online column about part-time work.  “Chung Loi” told the Applicant that transportation work could be arranged at an hourly rate of several hundred dollars, without specifying the types of goods.  Although the Customs Officer enquired repeatedly of the Applicant about the records of messages and communications between the Applicant and “Chung Loi”, he explained that despite a number of contacts with “Chung Loi” using WeChat before the material day, namely 8 January 2018, eventually no work was carried out due to problems of timing and arrangements and so on.  It was the first time that the Applicant had done any real work for “Chung Loi” on 8 January 2018.
2018年1月9日，申請人在其母親陪同下，與海關人員進行了錄影會面。申請人在錄影會面中堅稱自己對包裹內的毒品全不知情。申請人又表示，他是一名中六學生，課餘會擔任兼職；他於2017年12月從網上兼職專欄的一篇貼文認識「重來」。「重來」有向申請人表示可安排搬運工作，時薪有數百元，但沒有清楚說明物品的種類。雖然海關人員多次以申請人及「重來」的訊息及通訊紀錄查問申請人，但他解釋，雖然在案發日（即2018年1月8日）前曾多次與「重來」以微信聯絡，但因時間及安排等問題，最終並沒有落實工作。2018年1月8日是申請人第一次真正替「重來」辦事。

The Defence Case
辯方案情

The Applicant elected to give evidence in court, and adopted what he said during the video-recorded interview.  Under cross-examination, the Applicant at last admitted that he had worked for “Chung Loi” in December 2017.  The Applicant explained that he did not deliberately lie to the investigating officer in the video-recorded interview, just that his mind was in utter confusion at that time.
申請人選擇出庭作供，並採納他在錄影會面的說法。盤問下，申請人終承認於2017年12月曾替「重來」工作。申請人解釋他並不是故意在錄影會面中向調查人員說謊，只是當時他腦海一片混亂。

Apart from the Applicant, the defence also called a social worker of the Applicant’s school as a character witness.
除申請人外，辯方亦傳召了申請人的學校社工作品格證人。

The Crucial Issue of the Trial
原審的關鍵議題

As can be seen from the above, the only issue in this case was whether the Applicant knew at the time of the offence that the parcel contained a dangerous drug.
從以上可見，本案的唯一爭議是案發時申請人是否知悉包裹內藏有毒品。

Grounds of Appeal
上訴理由

Mr Eric Cheung, Solicitor Advocate for the Applicant, put forward the following grounds of appeal:
代表申請人的張達明訟辯律師提出以下的上訴理由：

(1)The Trial Judge erred in failing to give proper directions to the jury in respect of the “uncharged acts”;
原審法官錯誤地沒有就「不被控告的行為」向陪審團作出恰當指引；

(2)The Trial Judge did not tell the jury that regarding the element of knowledge of the dangerous drug in the case, “suspicion” was not enough;
原審法官沒有告知陪審團關於對涉案毒品是否知情這個元素，「懷疑」是不足夠的；

(3) The Trial Judge did not point out to the jury that they might not rely on what happened during the controlled delivery to draw an inference as to whether the Applicant knew the parcel contained a dangerous drug; and
原審法官沒有向陪審團指出不能夠依賴監控派遞過程中發生的事情以推論申請人是否知悉包裹內藏有毒品；及

(4) The prosecution wrongly assumed “1258594120” shown in the Applicant’s call records to be another person’s phone number, and as a result, unfairly cross-examined the Applicant in this regard.
控方錯誤假設申請人的通話紀錄內所顯示的“1258594120”為他人的電話號碼，因而不公平地以此盤問申請人。

Discussion
考慮

Ground of Appeal 1: “Uncharged acts”:
上訴理由一：「不被控告的行為」

In this case, the prosecution did not have any direct evidence to prove that the Applicant knew at the time he received the parcel that it contained a dangerous drug.  As the trial judge pointed out in the summing-up:
在本案中，控方並沒有任何直接證據證明申請人在接收包裹時知悉包裹內藏有毒品。正如原審法官在導詞中指：

“Well, actually, in the present case, how can the prosecution prove that the defendant knew?  Well, when there is no direct evidence to directly prove the offence, the prosecution has to rely on circumstantial evidence to prove that the defendant committed the offence. In a nutshell, the prosecution is relying on those circumstances relating to the offence and the defendant as evidence. According to the prosecution, if the evidence is considered piece by piece together, the conclusion will definitely be that the defendant knew there was a dangerous drug in the box.”
「咁其實今單案件控方點樣可以證明被告人係知道呀？咁冇直接證明罪行嘅直接證據嚟講，控方就要倚賴一啲環境證據去證明被告犯咗呢啲罪行喇。簡單嚟講，控方係倚賴嗰啲罪行同埋被告有關嘅種種情況作為證據嘅。根據控方講，如果呢啲證據將佢哋逐件逐件咁一併考慮嘅話，個結論就肯定被告就係知道嗰個盒裡面係有毒品嘅。」

Therefore, what evidence the jury actually adopted as the relevant circumstantial evidence in drawing an inference of guilt is indeed important.
因此，陪審團究竟採納了哪些證據作為相關的環境證據，從而作出有罪的推論，實為重要。

It is worth noting that when cross-examining the Applicant, the prosecution not only explored the previous work relationship between the Applicant and “Chung Loi”, but also raised the following questions near the end of the cross-examination:
值得注意的是，控方在盤問申請人時，不但探討申請人與「重來」過往的工作關係，並在盤問接近尾聲時提出以下說法：

“Q: The type of work that ‘Chung Loi’ arranged for you was absolutely not as simple as transportation.  Do you agree?
「問：『重來』安排畀你嗰個行業絕對唔係搬運咁簡單，你同唔同意？

Judge: That is to say …
官：呢個係講…

A: That is, looking at it now …
答：即係根據番而家去睇…

Judge: Now, objectively speaking, looking at it retrospectively, everyone knows it was not that simple, but I want - - I think the question is when he/she asked you to work for him/her at the beginning, did you know that the work he/she asked you to do would not be as simple as transportation, …
官：而家講客觀，事後睇起上嚟就大家知係嘅，唔係咁簡單喇，但係我想--我諗條問題都係話你知唔知道當初佢叫你幫佢工作嘅時候佢都叫你做嘅工作就唔會係搬運咁簡單，…

Mr Lui (transliteration): Right.
雷先生：係。

Judge: … I think it is more accurate to put the question this way.
官：…我諗咁樣比較準確啲呀條問題咁就。

Mr Lui:Fine.
雷先生：好。

A: That is…
答：即係…

Judge:That is, you knew from the very beginning that the transportation or the work of moving stuff he asked you to do for him/her was not that pure, that simple.
官：即係你一早知佢叫你幫佢手做搬運或者搬嘢呢啲工作就唔係咁純粹咁簡單嘅。

A: Disagree.
答：唔同意。

Q: Having worked for ‘Chung Loi’ for the entire Christmas holiday, you definitely knew the goods that you handled were dangerous drugs.  Do you agree?
問：為『重來』工作咗整整一個聖誕假期，你一定知道你處理緊嘅貨物就係毒品，你同唔同意？

A: Disagree.”
答：唔同意。」

In the closing submission, the prosecution put forward the following argument:
在結案陳詞時，控方又作出這樣的論述：

“Taking all the evidence of this case into consideration, it is the prosecution case that the only reasonable inference is that before collecting the parcel, it was already very clear to the defendant that there would be a dangerous drug in the parcel, because the defendant knew very well what he joined during the Christmas holiday of 2017 was the dangerous drug trade.  This is the prosecution’s submission.”
「考慮晒本案所有嘅證據，控方嘅講法係唯一合理嘅推論，就係被告人收包裹之前已經非常清楚包裹入面將會有嘅係毒品，因為被告人好清楚佢喺2017年聖誕假加入咗嘅就係毒品嘅行業。呢個係控方嘅陳詞。」

In other words, the prosecution was inviting the jury to consider the Applicant’s previous act of trafficking in a dangerous drug outside the scope of the charge, and to infer from it that the Applicant definitely knew that the parcel he collected on the material day contained a dangerous drug.
換言之，控方是邀請陪審團考慮申請人在控罪以外的過往販毒行為，從而推論申請人必然知道涉案當日所收取的包裹藏有毒品。

However, although the Applicant admitted that he did work for “Chung Loi” during the Christmas holiday before the incident in this case took place, he claimed that it only involved transportation work.   In this regard, we only have what the Applicant himself said.  There was no evidence in the case to prove that the Applicant in fact trafficked in a dangerous drug for “Chung Loi” during that time.
然而，申請人雖然在盤問下承認於案發前的聖誕假期曾替「重來」工作，但他聲稱該些只是涉及搬運的工作，而除了申請人自己的說法外，案中並沒有任何證據證明申請人在該段時間其實是替「重來」販運毒品。

Under such circumstances, Mr Eric Cheung pointed out that the Trial Judge should not have allowed the jury to make wild speculation when there was no evidence, and that the jury should have been specifically directed that they might not rely on the “uncharged acts” to draw an inference of guilt.
在此情況下，張律師指出，原審法官不應容許陪審團在沒有證據時胡亂猜測，而應明確向陪審團發出指引，指示他們不能依賴「不被控告的行為」作出有罪的推論。

Mr Eric Cheung continued to say that instead of reminding the jury of this, the Trial Judge, by way of “reversed logic”, directed the jury that based on the fact that the parcel on the material day contained a dangerous drug, an inference might be drawn as to whether the work which the applicant previously did to assist “Chung Loi” definitely involved a dangerous drug.  The relevant part of the summing-up related to this complaint is as follows:
張律師續指，原審法官不但沒有這樣提醒陪審團，反而用「顛倒邏輯」的方式，指引陪審團可以基於案發當日包裹內藏有毒品一事，推論申請人之前協助「重來」所擔任的工作是否亦必然涉及毒品。以下是關於這個投訴的導詞相關部份：

“The prosecution asked you to infer … the prosecutor said, having worked for him/her for the entire holiday, would it be possible that you still don’t know he/she is a drug dealer? … or based on this occasion on 8 January, you may infer that he/she was definitely talking about dangerous drugs.  What else if not talking about dangerous drugs?  Well, you have to think whether the prosecution’s evidence can make you believe, or even exclude other possibilities?”
「控方就叫你推論…主控官話成個假期去幫佢做嘢，你仲唔知道佢係做毒犯？…定係話基於今次呢個1 月8號你哋可以推斷番話佢梗係講毒品喇，唔講毒品仲講咩嘢呢？咁你哋要諗喇，控方嘅證據係咪能夠令到你哋相信，甚至乎係排除其他嘅可能性呢？」

In HKSAR v Kwok Hing Tony, the Court of Appeal explained how a judge should deal with this kind of evidence concerning “uncharged acts”.  The defendant in Kwok Hing Tony was alleged to have committed a number of sexual offences within a period of time, and the evidence given by the prosecution witness in court covered “uncharged acts”.  The Court of Appeal pointed out in the judgment that in certain cases, evidence of “uncharged acts” is admissible, but the judge must specifically remind the jury that firstly they have to be sure that the acts concerned indeed took place, and secondly, even if the acts have been established, the jury may not infer from such evidence that the defendant had committed similar offences, or that he is a person with a propensity to commit an offence.
就法官應如何處理「不被控告的行為」這一類證據而言，上訴法庭曾在香港特別行政區 訴 郭慶一案作出闡述。郭慶一案的被告人被指控於一段時間內干犯多項性罪行，而控方證人的庭上證供包括「不被控告的行為」。上訴法庭於判詞中指出，在某些案件中，「不被控告的行為」可被接納為呈堂證據，但法官必須特別提醒陪審團，他們首先需要肯定有關行為確為事實，其次，縱使有關行為獲得確立，陪審團亦不可以基於該類證據而推斷被告人曾干犯同類罪行或是一個有犯罪傾向的人。

Similarly, in HKSAR v Cheung Kim Shing, the Court of Appeal cited Kwok Hing Tony and pointed out that the evidence as to whether the applicant in that case did traffic in dangerous drugs on other occasions in the past was, to the applicant in that case, of prejudicial effect which far outweighed its probative value, and therefore it should be excluded and should not be adduced in court.  In any event, even if such evidence is admissible, the judge should nonetheless direct the jury that they may not based on such evidence infer that the defendant would have committed similar offences, or that he has a propensity to commit an offence.
同樣，在HKSAR v Cheung Kim Shing一案，上訴法庭引用郭慶一案指出，該案的申請人過往是否在其他場合販運毒品的證據，對該案的申請人而言，損害性遠超於舉證價值，因而應被排除，不應呈堂，但無論如何，就算該項證據可被接納呈堂，法官亦應指示陪審團不能因此推斷申請人會干犯類似的罪行或有犯罪傾向。

The Court of Appeal also pointed out in HKSAR v Wong Hei Chit, a case in which the prosecution invited the jury to rely on circumstantial evidence to draw an inference of the defendant’s knowledge of dangerous drugs, that since the prosecution alleged that during the time before that specified in the charge, the applicant in that case similarly used the transportation of mobile phones as a smoking screen for drug trafficking, the judge must emphasize to the jury that whether the applicant was involved in any act of drug trafficking at a time other than that specified in the charge was not what they were required to deal with in the case.  The jury should also be reminded that they might not rely on the relevant matter when considering whether the offence of drug trafficking in the case was to be established.
上訴法庭在控方依賴環境證據邀請陪審團推論被告人對毒品知情的HKSAR v Wong Hei Chit一案中亦指出，由於控方聲稱該案的申請人在控罪所指的前一段期間內，同樣是以運載手提電話作為販毒的煙幕，法官必須向陪審團強調，申請人在控罪以外的時間是否牽涉販毒行為並不是案中他們需要處理的事情，亦應提醒陪審團他們不能夠依賴有關事項考慮涉案的販毒罪是否獲得確立。

In respect of the present case, as mentioned earlier, the prosecution did not have direct evidence to prove the Applicant’s knowledge of the dangerous drug in the parcel, but instead relied on the previous relationship between the Applicant and “Chung Loi”, the records of the Applicant’s phone communications, the background before and after the Applicant collected the parcel, the Applicant’s own admission that he could earn a reward several times the hourly rate of his previous part-time work, and so on to ask the jury to draw an adverse inference against the Applicant.  Therefore, if the jury wrongly reckoned that the prosecution’s allegation that the Applicant had all along been assisting “Chung Loi” in drug trafficking was a matter they might take into consideration, it would obviously be contrary to the relevant legal principle, and it would definitely be unfair to the Applicant, particularly when, as both parties agreed, there was in fact no evidence in this case to prove that the Applicant had trafficked in dangerous drugs for “Chung Loi” before the incident in this case occurred.
針對本案，正如前述，控方並無直接證據證明申請人對包裹內的毒品知情，而是依賴申請人與「重來」的過往關係、申請人的電話通訊紀錄、申請人收取包裹的前後背景、以及申請人自己承認可獲得數倍於他以往兼職的時薪酬勞等等要求陪審團作出對申請人不利的推論。因此，如果陪審團錯誤地認為控方指稱申請人過往一直協助「重來」販運毒品的說法，是他們可以考慮的事項，這顯然是有違相關的法律原則，亦必會對申請人構成不公；尤其是雙方同意，本案根本沒有任何證據證明申請人在案發前曾替「重來」販運毒品。

Therefore, while the evidence of the previous relationship between the Applicant and “Chung Loi” should be admissible as the relevant background, the trial judge indeed should have reminded the prosecution that they might not invite the jury to speculate that the previous work of the two persons involved acts of drug trafficking.  Meanwhile, the jury should have been reminded that the relevant background evidence only served to show that the occasion on the material day was not the first contact between the Applicant and “Chung Loi”.  Besides, when the prosecution had obviously crossed this line in both the cross-examination of the Applicant and the closing submission, and had proceeded to state implicitly or explicitly that the applicant and “Chung Loi” had all along been trafficking in dangerous drugs, the Trial Judge indeed should have given the jury the appropriate directions in accordance with the above authorities.
故此，雖然申請人與「重來」的過往關係這方面的證據，應可作為相關背景呈堂，但原審法官實應提醒控方不能邀請陪審團揣測二人過往的工作是涉及販毒行為，亦應提醒陪審團有關的背景證據，只是用以顯示申請人與「重來」並不是在案發當天才首次接觸；而當控方在盤問申請人及在結案陳詞時明顯超越了這條界線，進而暗示或明言申請人與「重來」一直都在販運毒品時，原審法官實應根據以上案例所指，給予陪審團適當的指引。

Regrettably, instead of giving the relevant directions in this case, the trial judge in the summing-up as cited above similarly invited the jury to consider whether the applicant had trafficked in dangerous drugs for “Chung Loi” during a period prior to the incident in this case..
遺憾地，原審法官在本案中不但沒有作出有關指引，反而在上述導詞部份同樣邀請陪審團考慮申請人是否在過往一段時間內已替「重來」販運毒品。

Therefore, in respect of Ground of Appeal 1, this Court agrees that the directions that the Trial Judge gave to the jury on the issue in question were inadequate and wrong.
因此，針對上訴理由一，本庭同意原審法官就有關議題對陪審團的指引是不足及錯誤的。

Ground of Appeal 2: “Suspicion” was not enough
上訴理由二：「懷疑」並不足夠

Regarding this ground of appeal, Mr Eric Cheung mainly relied on HKSAR v Lai Wing Huen to show that the trial judge should have given precise directions to the jury in this case, i.e. even if the Applicant suspected that the parcel contained a dangerous drug, it was not enough to prove the element of “knowledge” in the offence of trafficking in a dangerous drug.
就這項上訴理由而言，張律師主要依賴香港特別行政區 訴 賴穎萱一案，以顯示原審法官應在本案中明確指引陪審團：縱使申請人懷疑包裹內藏有毒品，這亦不足以證明販毒罪當中「知情」這一元素。

This Court holds that the circumstances of Lai Wing Huen have unique features and are not comparable to the circumstances of the present case.
本庭認為，賴穎萱一案的案情有其獨特之處，並不可與本案案情相提並論。

Firstly, in Lai Wing Huen, prosecuting counsel emphasized in his final submission that the applicant had already suspected at an earlier stage that the person who asked the applicant to collect the red wine containing a dangerous drug might be a drug trafficker.  Prosecuting counsel said, “She did not check, obviously because she knew it was not red wine inside” and “had you harboured even a slight suspicion, or if you should have had reasonable suspicion, you would have opened it to take a look” .
首先，在賴案中，主控官在結案陳詞時曾強調，申請人在較早階段已懷疑要求申請人往提取藏有毒品的紅酒的該名人士，可能是販毒者；主控官指「佢冇check，好明顯因為佢知道裡面不是紅酒」及「如果你有少少懷疑，或者你應該有合理懷疑，你都會打開去睇睇」。

Secondly, the Court of Appeal pointed out in Lai Wing Huen, “Prosecuting counsel appeared to be pointing out to the jury that, from the applicant’s conduct of deliberately not opening the wine bottles to take a look, it could be inferred that the applicant knew what the bottles contained.”
其次，上訴法庭在賴案中指「主控看來是向陪審團指出申請人故意不打開看看此行徑，是可用作推斷申請人對酒樽內所藏為何物是知情的。」

Eventually, the Court of Appeal made the following conclusion in Lai Wing Huen:
最終，上訴法庭在賴案作出以下結論：

“28.The only issue in the present case was whether the applicant had ‘knowledge’.  The judge must make it clear to the jury that mere suspicion was not enough and that the prosecution had to prove that the applicant knew the wine bottles contained a dangerous drug.  In light of the above submission by prosecuting counsel, it was necessary for the judge to clearly point out to the jury that mere failure to examine the wine bottles or ‘to check’ was not by itself equivalent to the applicant having knowledge of what the wine bottles contained.
「28. 在本案，唯一的爭議是申請人是否『知情』。法官須明確告知陪審團單單懷疑是不足夠的，控方必須證明申請人知悉酒樽內藏有危險藥物。在主控作出上述陳詞後，法官有必要明確向陪審團指出單單無檢視酒樽、『冇check』此等行為，本身不等同申請人知悉酒樽內所藏為何物。

29.In the present case, the judge had more than once reminded the jury that the burden of proof was on the prosecution who had to prove that the applicant knew the bottles contained a dangerous drug.  However, after prosecuting counsel made the above submissions, the judge did not make it clear to the jury that mere suspicion was not enough, which might have misled the jury into thinking that if the applicant, despite harbouring a slight suspicion, did not open the polyfoam boxes to see what the wine bottles contained, it would be equivalent to her having knowledge.”
29. 在本案，法官雖不止一次提醒陪審團舉證責任在控方，控方必須證明申請人知悉酒樽內藏的是危險藥物，但在主控作出上述陳詞後，法官並無向陪審團明確指出單單懷疑是不足夠的，可能令陪審團誤以為申請人有少少懷疑而無拆開發泡膠盒看看酒樽內藏為何物，便等同她是知情。」

However, in the present case, the prosecution did not make a submission similar to that in Lai Wing Huen, and the Trial Judge even emphasized in the summing-up:
然而，在本案中，控方不但沒有作出類似賴案的陳詞，原審法官在導詞中更強調：

“Well, so if he said, had to know (sic), well, there is in fact only one reason, that is, someone told him, that is, his predecessor, his superior, or someone else, or a contact person told him that those were dangerous drugs.  Well, if only in such circumstances that no check was needed, and he knew that, and he still agreed to go on doing such work,”
「咁所以如果佢話要知嘅，咁即係其實一個原因嘅啫，就係有人同佢講，即係佢嘅上手，佢嘅上頭，又或者有其他人士，或者一個接洽嘅人同佢講嗰啲係毒品嚟嘅。咁如果只有喺咁嘅情況之下，先至可以唔使檢查，佢又知道，而佢又更同意繼續去從事呢個工作。」

Moreover, the trial judge further explained to the jury in the summing-up that even if they were of the view that the Applicant believed or suspected that there were prohibited or illicit items in the parcel, it did not mean that the prosecution had proved that the Applicant had knowledge of the dangerous drug in the case:
另外，原審法官又在導詞中進一步向陪審團解釋，就算他們認為申請人相信或懷疑包裹內有違禁品或非法物品，這並不表示控方已證明申請人對涉案毒品知情：

“And taking a step backward, if the defendant knew at most that he was doing something bad for “Chung Loi”, something illegal, that is to say, something improper, or dealing with something generally referred to as prohibited items, is it enough? … Well, will you consider that even if you are of the view that the defendant knew it was something not proper, not decent, not normal goods, or else the offer would not have been so good, with him paid that much as a reward and you were asked to erase this and erase that, well, could it be the case that he at most only knew they were prohibited items? Well, is there evidence to show that he definitely knew it was a dangerous drug? These are what you need to consider. Only if you can exclude all - all other possibilities and draw the only reasonable inference, that is to say from all the circumstantial evidence, these facts, we can make a conclusion, which is a definite and reasonable conclusion, that is to say he definitely knew it was a dangerous drug, only under such circumstances can you convict him. Otherwise, your duty is to consider that even if he could only reckon that those were problematic goods, it did not mean that it was a dangerous drug.  Then you must acquit him.  Well, that’s all I want to say.”
「而退一步嚟講，如果被告最多知道佢係幫『重來』做啲唔好嘅嘢，非法嘅嘢，即係話係有一啲問題嘅嘢，或者係所謂籠稱違禁品嘅話，咁夠唔夠呢？…咁會唔會你哋會考慮到即使你認為被告都知道嗰啲唔係妥當嘅嘢㗎喇，唔正經嘅嘢㗎喇，唔係正常嘅貨物㗎，如果唔係唔會咁好死，畀咁多嘅人工佢嘅，又叫你剷除呢樣，剷除嗰樣嘅。咁佢會唔會凈係最多都係知道係違禁品呢？咁有冇證據顯示佢必然知道係毒品呢？呢啲都係要你哋考慮。只要你哋能夠排除所有所有嘅可能性，達致唯一合理嘅推論，就係話從呢啲所有嘅環境證供，呢啲嘅事實，我哋得到一個結論，個結論係一個必然同埋合理嘅結論，就係話佢必然知道嗰度係毒品。只喺咁嘅情況之下你哋先可以判佢有罪，否則你哋嘅責任就係要考慮就算佢只能夠認為嗰啲係有問題嘅貨品都好，咁但係唔係等於係毒品，咁你哋亦都必須要判佢冇罪。咁我要講嘅嘢係咁多喇。」

This Court holds that the Trial Judge had already given the jury adequate and proper directions as to the prosecution’s obligation to prove the Applicant’s knowledge of the dangerous drug in the parcel. Lai Wing Huen does not require the presiding judge in every case to direct the jury that “suspicion is not enough”.  Whether it is necessary to give the relevant direction depends on the circumstances of individual cases.
本庭認為，原審法官就控方必須證明申請人對包裹內的毒品知情這一個事項，已經給予陪審團充分及正確的指引。賴案並不是要求主審法官在每一宗案件中都必須向陪審團發出「懷疑並不足夠」的指引；須否作出相關指引要視乎個別案件的案情而定。

If the presiding judge had already adequately and properly dealt with the element of “knowledge”, and there was no other matter in the case that might mislead the jury into equating “suspicion” with “knowledge”, then it was indeed not important whether the presiding judge gave the directions laid down by the Court of Appeal in Lai Wing Huen, let alone having to state to the jury verbatim that “suspicion is not enough”.
假如主審法官已經充分及正確地處理「知情」這個元素，而案中又沒有其他事項令致陪審團可能誤以為「懷疑」等同「知情」，則主審法官有否作出上訴法庭在賴案所提出的指引，實無關重要，更遑論必須一字一句地向陪審團指出「懷疑並不足夠」。

In view of the above, this Court finds that Ground of Appeal 2 cannot be sustained.
基於以上所述，本庭認為上訴理由二並不成立。

Ground of Appeal 3: What happened during the controlled delivery
上訴理由三：監控派遞過程中發生的事情

This ground of appeal involves the controlled delivery that the Applicant took part in after his arrest.  It is not disputed that after the arrest of the Applicant, “Chung Loi” kept calling the Applicant to enquire about the situation, and told the Applicant that “it’s dangerous even just holding the things on the street” , and that the goods should be handed over as soon as possible; and the recipient of the goods who had contact with the Applicant also told the Applicant that police vehicles were parked near the original location intended for collection of goods, and therefore it was inconvenient to collect the goods.
這個上訴理由涉及申請人在被捕後所參與的監控派遞。雙方沒有爭議，在申請人被捕後，「重來」不斷致電申請人查詢情況，又向申請人表示「揸住啲嘢喺街都有危險」，應盡快交貨；而與申請人接觸的收貨人亦曾經向申請人表示，由於原定的收貨地點附近停泊了警車，所以不方便收取貨件。

In respect of this issue, the prosecution stated in the closing submission as follows:
針對這個議題，控方在結案時作出以下陳述：

“What kind of work could that be where handover could not be done where there were police vehicles? What kind of goods could they be to be dangerous to hold on the streets? … Of course, as to the circumstances of the handover involving the presence of police vehicles, the time concerned was after the arrest of the defendant.  The messages from ‘Chung Loi’ saying, ‘it’s dangerous to go out holding the things’ and ‘it’s dangerous to hold the things on the streets’ also came after the arrest of the defendant, but these two people concerned in fact did not know at that time that the defendant had been arrested. And the people whom the defendant had contact with included ‘Chung Loi’ who knew that ‘it’s dangerous to hold the things on the streets’, and the person going to collect the things from the defendant later on who (dared) not carry out the handover upon seeing the police vehicles.  Could it be the case that the defendant was the only person kept in the dark in this group, this syndicate?  Could it be the case that the defendant was the only person not knowing that what he was dealing with was a dangerous drug?”
「有啲咩嘢工作交收係唔可以有警車在場嗰度發生嘅呢？有啲咩嘢貨係揸住喺街有危險嘅呢？…當然，警車嗰個交收嘅情況，涉及嗰個時間係被告人被捕之後，收到『重來』話『揸住啲嘢出街有危險』，『揸住啲嘢喺街有危險』，亦都係被告人被捕之後所出現，但係有關呢兩個人根本喺當時唔知道被告人係被捕嘅。同埋被告人所接觸嘅人，包括『重來』知道『揸住啲嘢喺街有危險』，之後向被告人收嘢嘅人見到警車亦都唔夠（膽）交收，被告人會唔會係喺呢一個組織、呢一個集團裡面唯一一個被蒙在鼓裡嘅人呢？會唔會只係得被告人一個唔知道佢處理緊嘅就係毒品呢？」

In the summing-up, the Trial Judge recapped the evidence in this regard, and stated to the jury:
原審法官在導詞中複述這方面的證據後，亦曾向陪審團表示：

“… during that time, the defendant received a message from ‘Chung Loi’.  ‘Chung Loi’ was very anxious. He/She told the defendant to ‘hurry up and take a taxi to get there.  Don’t waste time.  It’s very dangerous to hold the things on the streets.’ Bear this sentence in mind.”
「…期間被告人就收到『重來』個信息，『重來』就好心急，佢叫被告人『快啲飛的過去，唔好嘥時間，揸住啲嘢喺街好危險』，呢句大家記住喇。」

Mr Eric Cheung pointed out that during the controlled delivery, the Applicant was required to follow the instructions of the Customs Officers in having conversations and might not respond according to his own state of mind and perception, and therefore it was indeed unfair to the Applicant for the prosecution to emphasize such conversations.  For instance, even if the Applicant wanted to raise a question upon hearing “Chung Loi” mention that “it’s dangerous to hold the things on the streets” or wished to clarify with “Chung Loi” what was being referred to as “dangerous”, given the passive role he was playing at that time, there was no way for him to make enquiries.
張律師指，由於申請人在監控派遞過程中，是需要根據海關人員的指示進行對話，而不能憑藉自己的心態及認知作出回應，故此控方強調這些對答，實對申請人不公。舉例說，假使申請人在聽到「重來」提及「揸住啲嘢喺街有危險」這句話時希望作出提問，又或希望向「重來」澄清「危險」是指甚麼事情，基於申請人當時的被動情況，他也沒有辦法進行查詢。

This Court agrees with Mr Eric Cheung’s observation. If the jury took into account the Applicant’s response and conduct during the controlled delivery, or to put it more accurately, the Applicant’s failure to respond or act, such as his failure to raise queries with “Chung Loi” or the recipient of the goods, or to indicate that he did not understand something and so on, and as a result drew an adverse inference against the Applicant, it is apparently unfair to the Applicant.
本庭同意張律師的論述，假如陪審團考慮申請人在監控派遞過程中的回應及行為，或更準確地說，申請人沒有作出的回應及行為，例如沒有向「重來」或收貨者提出質詢，或表示不明所以等等，而因此對申請人作出不利的推論，這似乎是對申請人不公平的。

In the present appeal hearing, as to whether what “Chung Loi” and the recipient of the goods said to the Applicant during the controlled delivery amounted to “hearsay evidence” or whether what they said should be admitted as evidence, the parties only made preliminary submissions in court, without going into depth on the relevant principles; nor did they rely on authorities involving “hearsay evidence” to further elaborate on the arguments to this Court.  Therefore, this Court does not consider it appropriate to comment on this issue here.
在這次上訴聆訊中，雙方就「重來」及收貨者在監控派遞過程中對申請人所講的說話是否涉及「傳聞證供」，又或該些說話是否應被接納為呈堂證供，只曾在庭上作出初步陳詞，沒有就有關原則深入探討；亦沒有依賴涉及「傳聞證供」的案例，向本庭作出進一步闡述。故此，本庭認為並不適合在此就這個議題作出評論。

Ground of Appeal 4: The Applicant’s phone communication records
上訴理由四：申請人的電話通訊紀錄

The parties agreed during the appeal hearing that the number “1258594120” shown in the Applicant’s communication records was in fact not another person’s phone number, but a code internally set by the telecommunication service provider concerned, to show that the card holder was using Wi-Fi service at the time.
雙方於上訴聆訊時同意申請人的通訊紀錄內顯示“1258594120”的這個號碼，其實並不是一個他人的電話號碼，而是相關電訊商內部設定的編碼，用以顯示持卡人當時正在使用Wi-Fi服務。

Regrettably, during the trial, before ascertaining the relevant matter, the prosecution wrongly assumed that “Chung Loi” used this number to call the Applicant.  From the transcript, we can see that when the prosecutor was cross-examining the applicant, he queried the Applicant time and again, saying that through this number, he had had repeated and prolonged telephone conversations with “Chung Loi”.  It is particularly important that the prosecutor claimed that the Applicant continued to stay in contact with the holder of this phone number after his release on bail following the arrest:
遺憾地，控方於審訊時在沒有確認有關事項前，便錯誤假定「重來」是用這個號碼致電申請人。從謄本可見，主控官在盤問申請人時多番質疑申請人透過這個號碼與「重來」重複及長時間地通話，尤其重要的是，主控官聲稱申請人在被捕獲得保釋後，繼續與該電話的持有人保持聯絡：

“Q: In respect of this case, you were released on bail afterwards. From 10 January, you only made five outgoing calls using - - which were all recorded through Wi-Fi service, three of which exceeding one thousand seconds.  All calls were made by you, all involving this phone number, 1258594120. Can you see that?
「問：針對於本案，之後你獲釋，由1月10 號開始你只係打出咗五個電話係用--係都係Wi-Fi service紀錄落嚟嘅，其中三個都係超過一千秒，全部都係由你打出嘅，全部都係涉及呢一個1258594120嘅電話號碼，你見唔見到？

A: Yes.
答：係。

Q: Can you see that?
問：見唔見到？

A: I can see that.
答：見到。

Q: Who was it?
問：邊個嚟㗎呢個？

A: I think it might be the telecommunication service provider.  It should be.
答：我覺得可能係電訊商喇，應該係。

…
…

Q: The total number of calls is 67. Now think carefully. Who was that person?
問：總共嗰個通話次數係有六十七次嘅，你而家諗清楚，嗰個人係邊個㗎？

A:Not sure, that is, maybe the telecommunication service provider.  Apart from the telecommunication service provider, I cannot think of anything else.
答：唔清楚，即係可能電訊商，除咗電訊商之外，諗唔到啲咩嘢。

Q: I suggest to you that in fact that person was the person related to this case, who instructed you to hand over the parcel. Do you agree?
問：我向你建議，呢個人其實就係同本案有關指使你交收包裹嘅人，你同唔同意？

A:Disagree.”
答：唔同意。」

This point is extremely prejudicial to the Applicant.  The jury might reckon that if the Applicant had no knowledge of the dangerous drug in the case, he should have been alert to or angry at “Chung Loi” afterwards and would not have stayed in contact with “Chung Loi” after the arrest.
這點對申請人極為不利，陪審團可能會認為，如申請人對涉案毒品並不知情，他在事發後應會對「重來」這人產生警剔或怒意，而不會在被捕後仍與「重來」繼續聯絡。

Later on, the prosecutor even made the following statement in the closing submission:
主控官其後更在結案陳詞時作出以下陳述：

“From exhibit D16 which we added as the last piece of evidence, we can see that the total number of calls that the defendant made to number X is 67, which is the largest number of calls during the one-and-a-half-month period from 1 December 2017 to 15 January 2018, even more than the defendant’s own mother’s.  Given the large number of calls and the long duration of calls, is the explanation given by the defendant in court acceptable? Is it possible that (he) cannot remember those calls which were so large in number and so long in terms of duration?”
「喺我哋最後增加嘅證據D16嗰度可以睇到，被告人打畀號碼X嘅次數總共係六十七次，係最多通話嘅，喺17年12月1號至到18年1月15 日呢個半月嘅時間裡面，更加多過被告自己嘅媽媽。考慮到通話次數咁多，通話時間又咁長，被告人喺庭上嘅解釋大家係咪可以接受呢？有冇可能可以唔記得曾經咁（多）次同埋咁長時間嘅通話呢？」

The prosecution was obviously challenging the credibility of the Applicant as a witness on the basis of the evidence that the Applicant gave about that phone number.
這顯然是以申請人就該電話號碼所作的證供，質疑申請人並非一名可信的證人。

Such an approach of the prosecution was not only obviously wrong, but also unfair to the Applicant.  In fact, it should not be difficult to ascertain whether that number was another person’s phone number.  If the prosecution did not have relevant substantive evidence during the trial, the prosecution should not have made speculations that were prejudicial to the Applicant, or even implied that the number belonged to “Chung Loi”.
控方這個處理方法，不但明顯犯錯，亦對申請人造成不公。事實上，要確定該個號碼是否他人的電話號碼，應該不是難事。如果控方在審訊時沒有相關的實質證據，則控方並不應該作出不利於申請人的揣測，甚或暗示該號碼是屬於「重來」的。

Conclusion
結論

In light of the above, Grounds of Appeal 1, 3 and 4 do stand.
基於以上所述，上訴理由一、三及四均成立。

Mr Ivan Cheung, Senior Public Prosecutor representing the Respondent, hoped that this Court would uphold the guilty verdict against the Applicant by applying “the proviso”.  However, this Court is of the view that the jury was not given adequate and proper directions in respect of the above issues.  This Court cannot be sure whether the jury, if appropriately directed, would have accepted the prosecution case eventually.  Therefore, this Court holds that it is not proper to invoke the power under “the proviso” in this case.
代表答辯人的高級檢控官張卓勤希望本庭使用“但書”維持針對申請人的有罪裁決，但本庭認為陪審團就上述數個事項均沒有獲得充分及正確的指引，而在適當引導下，陪審團最終是否接納控方的講法，這並不是本庭可以肯定的。因此，本庭認為在本案行使“但書”的權力是不恰當的。

This Court grants the Applicant’s application for leave to appeal against conviction and, treating his application as the appeal proper, we allow the appeal.  The conviction is quashed and the sentence set aside.
本庭批准申請人就定罪提出的上訴許可申請，並視之為正式上訴，裁定上訴得直，撤銷有關定罪及判刑。

Mr Ivan Cheung, Senior Public Prosecutor of the Department of Justice, for the Respondent
答辯人：由律政司高級檢控官張卓勤代表

Mr Eric Cheung, Solicitor Advocate instructed by ONC Lawyers, assigned by the Legal Aid Department, for the Appellant
上訴人：由法律援助署委派柯伍陳律師事務所轉聘張達明訟辯律師代表