Cheung JA (giving the judgment of the Court):
上訴法庭法官張澤祐頒下上訴法庭判案書：

The offences of trafficking in dangerous drugs
販運危險藥物罪

The applicant was charged with two counts of trafficking in dangerous drugs, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap.134).
申請人被控兩項販運危險藥物罪，違反香港法例第 134 章《危險藥物條例》第 4(1)(a) 及 (3) 條。

The particulars of the first charge were that, on 1 June 1999, the applicant, on board a private car bearing registration number EG 1447 and parked at the junction of Granville Road and Chatham Road South, Kowloon, Hong Kong, unlawfully trafficked in one block of dangerous drugs, namely approximately 348 grams of a mixture containing approximately 195 grams of heroin hydrochloride.
第一項的罪行詳情指申請人於 1999 年 6 月 1 日在一輛停泊於香港九龍加連威老道與漆咸道南交界車牌登記號碼為 EG 1447 的私家車上非法販運 1 磚危險藥物，即內含約 195 克海洛英鹽酸鹽的約 348 克混合劑。

The particulars of the second charge were that the applicant, at the same time and on board the same private car as particularised in the first charge, unlawfully trafficked in 4 blocks of dangerous drugs (not including the block referred to in the first charge), namely approximately 1,392 grams of a mixture containing approximately 780 grams of heroin hydrochloride.
第二項控罪的詳情指申請人在同一時間及在該輛私家車上非法販運 4 磚危險藥物（不包括第一項罪名所述的 1 磚），即內含約 780 克海洛英鹽酸鹽的約 1,392 克混合劑。

The applicant pleaded guilty to the first charge but not guilty to the second charge. He was convicted after trial of the second charge.  He was sentenced to 7 years’ imprisonment for the first charge and 24 years’ imprisonment for the second charge, with both sentences to run concurrently.  The applicant now applies for leave to appeal against conviction on the second charge.
申請人承認第一項控罪，但否認第二項控罪。經審訊後被定罪。第一項控罪被判監禁 7 年，第二項控罪被判監禁 24 年，兩項刑期同期執行。申請人現對第二項控罪的定罪不服，提出上訴許可申請。

The agreed facts
雙方承認的事實

The facts as agreed by the prosecution and the defence are as follows:
這是控辯雙方承認的事實：

On the afternoon of 1 June 1999, a team of police officers attached to the Narcotics Bureau of the Hong Kong Police Force acted on instructions and carried out anti-drug operation in Tsimshatsui area.  At about 4.48 pm, police officers of the team intercepted a private car with registration number EG 1447 at the junction of Granville Road and Chatham Road South.  A total of 5 persons were on board the car, namely the applicant, three males Cheung Shek Wing (transliteration), Li Man Chi (transliteration) and Chow Chi Kwong (transliteration), and a male Lau Siu Wan (transliteration) who was the driver of the car.  Detective Constable 45165 walked up to the outside of the front passenger compartment and revealed his identity to Cheung Shek Wing who was sitting there.  Detective Constable 45165 told Cheung Shek Wing that he suspected that Cheung Shek Wing had in his possession dangerous drugs (“drugs”) and that he wanted to search him.  Detective Constable 45165 then asked Cheung Shek Wing to alight from the car.  When Cheung Shek Wing was leaving the compartment as told, Detective Constable 45165 saw a transparent plastic bag on the front passenger seat of the car.  The plastic bag contained a newspaper, two cigarette packets and one block of suspected heroin.  Detective Constable 45165 then searched Cheung Shek Wing but did not find any drug on his person.  Detective Constable 45165 then arrested Cheung Shek Wing for the offence of drug trafficking.
1999 年 6 月 1 日下午，一隊隸屬於香港警務處毒品調查科的警務人員奉命在尖沙咀區執行掃毒行動。同日下午 4 時 48 分左右，毒品調查科的警務人員在加連威老道與漆咸道南交界截停一輛車牌號碼為 EG 1447 的私家車。該輛車上共有 5 人，他們是申請人及三名男子張錫榮、李文志和周志光。該輛車由一名男子劉小雲駕駛。偵緝警員 45165 走到該輛車的前座乘客車廂，並向坐在該處的張錫榮表露身分。警員 45165 向張錫榮表示，懷疑他藏有危險藥物（“毒品”），想對他進行搜身。警員 45165 指示張錫榮下車，而當張錫榮正按指示而行出車廂之際，警員 45165 看見於該輛車的前座乘客座位放有一個透明膠袋。該個膠袋內載有一份報紙和兩個煙盒，另又載有 1 磚懷疑海洛英毒品。警員 45165 向張錫榮搜身，但在他身上並沒有搜出任何毒品。警員 45165 以販運毒品的罪名拘捕張錫榮。

Detective Constable 48050 was also one of the police officers instructed to take part in the operation.  He walked up to the outside of the compartment of the car and revealed his identity.  After Chow Chi Kwong alighted from the left side of the rear seat, Detective Constable 48050 intercepted him and said that he had to search him as he was suspected to have drugs in his possession.  Detective 48050 proceeded to search Chow Chi Kwong and found from the inside of the front waistband of his trousers one block of suspected heroin wrapped in a white and green coloured plastic bag.  Detective Constable 48050 then arrested Chow Chi Kwong for the offence of drug trafficking.
偵緝警員 48050 也是奉命在行動中執行任務的警務人員。偵緝警員 48050 走到該輛車的車廂外表露身分。周志光從後車廂的左邊座位下車後，偵緝警員 48050 把他截停，並向他表示因為懷疑他藏有毒品，所以要向他搜身。結果偵緝警員 48050 向周志光搜身，在他前面褲頭位內，發現 1 磚以白錄色膠袋包裹的懷疑海洛英毒品。偵緝警員 48050 以販運毒品的罪名拘捕周志光。

At that time, Li Man Chi was sitting in the middle of the rear passenger seat.  After Detective Constable 3118 (PW3) ordered him to alight from the car, PW3 found, at the seat which he had occupied and at the place between where Li Man Chi’s two feet had been, one block of suspected heroin wrapped in adhesive tapes.  No drug was found on Li Man Chi’s person.
另一名乘客李文志當時坐在後座的中間位置。偵緝警員 3118 (控方第三證人)指令他下車後，在他所坐的座位雙足之間的位置上發現 1 磚以膠紙包裝的懷疑海洛英毒品，在李文志身上並沒有搜出毒品。

Detective Constable 47002 (PW1) was also instructed to take part in the operation.  He walked up to the outside of the rear compartment of the car, opened the car door on the right side and revealed his identity to the applicant, who was sitting behind the driver.  After that, Detective Constable 48479 (PW2) seized from inside the rear compartment a pink paper bag which contained a purple plastic bag.  The purple plastic bag contained a total of 5 blocks of suspected heroin.  These 5 blocks were subsequently examined and certified to contain heroin hydrochloride.  The weight of the heroin hydrochloride contained in each of the 5 blocks varied from 191 grams to 198 grams.  A fingerprint consistent with that of the left index finger of the applicant was found on the surface of the purple plastic bag.
偵緝警員 47002 （控方第一證人）亦奉命在行動中執行任務。他走到該輛車的後車廂，並打開右邊的車門向坐在司機後面的申請人林日强表露身分。其後偵緝警員 48479 （控方第二證人）在後車廂內檢獲一個粉紅色的紙袋，內載有一個紫色膠袋，而該紫色膠袋內載有合共 5 磚懷疑海洛英毒品。該 5 磚懷疑海洛英毒品經化驗後證實含有海洛英鹽酸鹽，該 5 磚毒品所含的海洛英鹽酸鹽的重量由 191 克至 198 克不等。在上述紫色膠袋的表面上發現一個屬於申請人的左手食指指模。

The police took samples from the applicant’s face, hands and hair for analysis.  The police also seized and analysed the pair of sandals worn by the applicant at the scene of the crime.  The samples and pair of sandals were subsequently certified to carry traces of heroin.  It was also certified that there were traces of heroin on the face, hands and hair of another defendant Li Man Chi, who had been sitting in the middle of the rear seat of the car.
警方在申請人的面部、雙手及頭髮檢取化驗樣本。警方亦檢走及化驗申請人在案發現場所穿的一對涼鞋。其後，上述所檢取的三種化驗樣本及涼鞋證實分別含有微量海洛英。另外，坐在車輛後排中間位置的另一名被告人李文志的面部、雙手及頭髮亦證實含有微量海洛英。

At trial, PW1 testified that, when he opened the rear car door, he saw a pink paper bag behind the applicant’s legs, and the bag was placed between the applicant’s calves and the seat.
第一證人在法庭作供時稱當他開啟了後排的車門時看見申請人雙腿後面有一個粉紅色紙袋，該袋是放在申請人後腿及座位的中間。

Cheung Shek Wing, Chow Chi Kwong and Li Man Chi were each charged with the offence of trafficking in one block of drugs, and each of them pleaded guilty to the charge against him.
張錫榮、周志光及李文志分別被控販運 1 磚危險藥品，他們三人都承認控罪。

The applicant’s defence
申請人的自辯

The applicant gave evidence in his defence.  He was a drug addict who had to spend a few hundred dollars on drugs every day.  He knew another drug addict who introduced him to someone called “Ah Hong”, for whom he delivered drugs.  On the day of the offence, the applicant received a telephone call from Ah Hong who told him to fetch a piece of number 4 heroin, and for this he would be given 1/2 ounce of drugs, with a market value of about $3,000, as a reward.  The applicant was instructed to stand at the doorway of a sauna, holding a pack of lemon tea for ease of identification, and then someone would contact him.  At 2 pm on that day, the applicant waited at the appointed place.  Later, a private car bearing registration number EG 1447 arrived, and the driver of the car asked the applicant to board the car.  At that time there were already two passengers inside the car, occupying the front seat and the rear seat respectively.  The applicant boarded the car and occupied the right side of the rear seat behind the driver.  The driver drove around and then picked up the last passenger, who took the left side of the rear seat.  The driver then continued to drive around.  The applicant began to feel a bit tired, and when he was in a trancelike state, the car had neared the scene of the offence.  The applicant heard the driver ask the passenger at the front seat to open the car window and also heard the sound of objects being thrown into the car.  After that, the passengers inside the car followed the instruction of the driver, who told them each to take out one item from the paper bag thrown into the car.  When the paper bag was passed to the applicant, he also put his hand into the bag in an attempt to take out one block of heroin, but before he could get that block of heroin, the car was intercepted by the police, and the paper bag fell and landed by the side of the applicant’s feet and near the middle of the rear seat.
申請人作供自辯。他是一名吸毒者，每天需要花費數百元吸毒。他認識的另外一名吸毒者介紹他替一位名叫“阿康”的人攜帶毒品。事發當日，申請人收到阿康的電話指示他去取一塊 4 號海洛英，之後會獲得到半安士,市值大約 $3,000的毒品作為報酬。按指示，申請人要站在一所浴室門口，並手執一包紙包檸檬茶為記認，接着便會有人跟他聯絡。當日下午二時，申請人在指定的地點等候，一輛車牌 EG 1447 的私家車隨後駛至，車上司機叫申請人上車。當時車上已載有兩名乘客，一名坐在車的前排，而另一名則坐在後排。申請人上車後坐在司機位後面的位置。司機開車四處兜圈，後來接載了最後一名乘客上車，該乘客坐在後排座位的左邊，司機繼續開車周圍兜圈。申請人開始有點倦意，在他半睡半醒的模糊狀態的時候，車輛已到達案發地點附近，申請人聽到司機叫前排乘客打開玻璃窗，他也聽到好像有些東西被拋進車內的聲音。接着，車上各人聽從司機的吩咐各自從拋進車內的紙袋內拿出各人一份的物品。當紙袋傳到申請人手上，他亦伸手入袋想取出 1 磚海洛英，在他還未取得該磚海洛英時，車就被警察截停，紙袋跌在申請人的腳邊，紙袋的位置就在申請人腳邊靠中間座位的地方。

The applicant said that at the time he had no idea how many blocks of heroin were there inside the paper bag or whether there was any other heroin.  At that time he only wanted to get the one block of heroin he needed and the other things had nothing to do with him, and the items inside the paper bag would be dealt with by the driver himself.  The applicant said that, had the car not been intercepted by the police, the driver would have driven him to a taxi stand after he took the block of heroin, and then he would have followed Ah Hong’s telephone instruction and delivered the block of heroin to the specified destination.
申請人指他當時不知道紙袋內有多少磚海洛英及有沒有其他的海洛英。他當時的想法是只想取走自己需要的那 1 磚海洛英，其他事情與他無關，紙袋內的物品會由司機自己處理。他說假若車輛沒有被警察截停，他在取得那磚海洛英後，司機就會載他到一個的士站，然後他會根據阿康的電話指示運送該磚海洛英到目的地。

Defence witness Chow Chi Kwong
辯方證人周志光

Defence witness Chow Chi Kwong said he was also instructed to fetch one block of heroin, and that when he boarded the car at the appointed place, three passengers including the applicant were already inside the car.  Chow Chi Kwong said a person outside the car handed the paper bag into the car as the driver told him to do so.  After that, the driver told the passenger at the front seat to take out one block of substance wrapped in newspaper and then pass the paper bag to the rear seat.  The passenger in the middle of the rear seat took the paper bag, followed the driver’s instruction and took out one block from the bag, and gave it to Chow Chi Kwong.  That passenger also took one block for himself, and then followed the driver’s instruction and passed the paper bag to the applicant.  At that time the driver did not instruct the applicant to take out one block of drugs from the bag.  About 10 seconds after the applicant received the paper bag, the car was intercepted by the police.
辯方證人周志光指他亦是被指示去提取 1 磚海洛英，當他在約定的地點登上車輛時，包括申請人的 3 名乘客已在車上。周志光指一名在車外的人士將紙袋遞入車內，當時司機叫他將紙袋遞入車內。之後，司機叫前座的乘客取出 1 磚被報紙包裹着的物體及將紙袋傳往後座。後座中間的乘客接過該袋後，就聽從司機的指示從袋內取出 1 磚給周志光，中間的乘客接着亦拿了 1 磚，然後聽從司機的指示將紙袋交給申請人。當時司機並沒有指示申請人從紙袋內取出 1 磚毒品。申請人接過紙袋後約 10 秒時間，車輛便被警察截停。

Grounds of appeal
上訴理由

The applicant raises a number of grounds of appeal.  We do not consider it necessary to deal with them individually, as they are not valid grounds of appeal. Those grounds of appeal include:  (1) The trial judge erred by rejecting the defendant’s submission of no case to answer, and also by leaving the prosecution case on the second charge to the jury when no reasonable jury properly directed would have convicted the defendant of that charge.  This ground concerns PW1’s evidence that he saw the position of the paper bag.  (2) The trial judge failed to warn the jury that it was unsafe for them to rely on PW1’s evidence.  (3) On the authorities of R v. Kevin Brown (1984) 9 Cr App R 115 and HKSAR v. Tse Koon Kit CACC 388/97, the trial judge should have directed the jury on the applicant’s mode of committing the two different offences.  (4) The trial judge should have directed the jury on the role played by each of the passengers and the driver of the car.  (5) The trial judge failed to direct the jury sufficiently on the legal principles concerning possession of dangerous drugs.
申請人提出多項上訴理由，本庭認為不需要逐點處理，它們都不是合理的上訴理由。這些上訴理由包括：（1）原審法官錯誤地拒絕接納辯方關於無須答辯的陳詞及容許陪審團繼續考慮控方的第二項控罪，而該控罪是陪審團在合理情況下及在適當的引導下不會判定被告人有罪的。這上訴理由涉及第一控方證人指他看見紙袋位置的證供。（2）原審法官沒有警告陪審團，他們依賴第一控方證人的證供是危險的。（3） 法官應該根據 R. v. Kevin Brown [1984] 9 CR APP R 115 及 HKSAR v. Tse Koon Kit CACC 388/97，就有關申請人干犯那兩種不同控罪的方式向陪審團作出引導。（4） 法官應該向陪審團引導車上各乘客及司機的角色。（5） 法官沒有充分引導關於管有毒品的法律原則。

Problems arising from the splitting of the charge
分拆控罪引發的問題

In our view, the summing-up given by the trial judge to the jury was fair and balanced, providing detailed directions in respect of the material evidence and issues that touched on the strengths and weaknesses of each party’s case.  However, since the prosecution and the defence had split the charge into two charges and the first charge was handled in such a way that the trial judge was unable to deal with the grounds of defence comprehensively when he directed the jury, the summing-up was rendered seriously defective.
本庭認為法官所作的引導陪審團陳詞書是持平的,他對重要的證供及涉及雙方利害的爭議點作出詳細引導。但由於控辯雙方將控罪分拆成兩項控罪和處理第一項控罪的方法令到法官沒法及沒有全面地將申請人的抗辯理由向陪審團提出，因而令引導陳詞書存在嚴重的缺陷。

To begin with, the applicant was charged with one single count of trafficking in 5 blocks of drugs.  He indicated that he would plead guilty to trafficking in one block of drugs.  Having discussed the matter with the defence, the prosecution split the charge into two, that is the first and second charges with which we are now concerned.  It is common ground that both charges involved the 5 blocks of drugs inside the paper bag.  However, the one block of drugs stated in the first charge did not refer to any particular block of drugs inside the paper bag; the 195 grams or so of heroin hydrochloride as stated in the particulars of offence was in fact the average figure taken of the quantities of heroin constituents in the 5 blocks of drugs inside the paper bag.  Further, the 780 grams or so of heroin hydrochloride mentioned in the second charge was in fact a figure arrived at by multiplying the average quantity of heroin constituents in the 5 blocks of drugs by 4 (195 grams x 4 = 780 grams).  These two points were not mentioned at all in the submissions by both the prosecution and the defence and in the trial judge’s directions to jury.  In ordinary cases, the nature and quantity of drugs involved only affect the length of the sentence to be imposed. In the present case, however, the splitting of the original charge into two and the ways in which the two charges were dealt with had a material effect on the applicant’s defence in respect of the second charge.
申請人原本是被控一項販運 5 磚毒品的控罪，由於他提出承認販運 1 磚毒品，控辯雙方商議後，控方將控罪一分為二，變成現時的第一及第二項控罪。雙方沒有爭議的是這兩項控罪都是涉及紙袋內的 5 磚毒品，但第一項控罪所述的 1 磚毒品並非指紙袋內某 1 磚毒品；罪行詳情所指的約 195 克海洛英鹽酸鹽，實是涉案紙袋內 5 磚毒品所含海洛英成分的平均數。而第二項控罪所提及的約 780 克海洛英鹽酸鹽，實是將 5 磚毒品海洛英成分的平均數乘以 4 （195克 X 4 = 780 克）而得出。這兩點在控辯雙方的陳詞及法官引導陪審團時完全沒有提及。在一般案件中，控罪所涉的毒品和重量只影響判刑的長短，但在本案中，將原控罪分拆成兩項控罪和兩項控罪的處理手法對申請人就第二項控罪的抗辯起着關鍵性的影響。

Definition of drug trafficking
販運毒品的定義

Trafficking in dangerous drugs is defined in the Dangerous Drugs Ordinance as:
販運危險藥物在《危險藥物條例》的定義是：

“‘Trafficking’, in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking …”
「就危險藥物而言，『販運』包括進口入香港、從香港出口、獲取、供應或以其他形式經營或處理危險藥物，或管有危險藥物作販運。」

Broadly speaking, a defendant can commit the offence of drug trafficking in two different ways: by dealing in or with the drug, or by possessing the drug for the purpose of unlawful trafficking.  For the purpose of the present case, the applicant could have committed the first and second charges in the above two ways.
大體而言，一名被告可以透過兩種不同方式干犯販運毒品的罪名：其一是經營或處理毒品，其二是管有毒品作非法販運用途。就本案而言，申請人也是可以經上述兩種方式干犯第一、第二項控罪。

Possession of drugs
管有毒品

Plainly, in the present case, the prosecution instituted proceedings against the applicant on the basis that he possessed all the 5 blocks of drugs inside the paper bag in question for the purpose of unlawful trafficking.  Mr. Wong Po Wing, counsel for the applicant, submitted that the applicant pleaded guilty to the first charge because he did have the actus reus and mens rea of drug trafficking, meaning that he boarded the car in question pursuant to the instructions of Ah Hong who had told him to fetch one block of drugs.  In other words, it was not on the basis that he possessed the one block of drugs for the purpose of unlawful trafficking that he committed and pleaded guilty to the first charge.  In fact, the applicant completely denied that he was in possession of the paper bag that contained the 5 blocks of drugs.  Accordingly, the factual and legal bases on which the applicant pleaded guilty to the first charge were entirely different from the basis on which the proceedings were instituted.
明顯在本案中，控方是以申請人管有涉案紙袋內共 5 磚毒品作非法販運用途提出檢控。據王寶榮大律師上訴時的陳詞，申請人承認第一項控罪是因為他確有販運毒品的行為和意圖，意思是說申請人是為履行阿康囑他提取 1 磚毒品的指令而登上涉案車輛。換而言之，他並不是在管有 1 磚毒品作非法販運用途的基礎上干犯和承認第一項控罪。事實上，申請人完全否認管有載着 5 磚毒品的紙袋。因此，申請人承認第一項控罪的事實和法理基礎與控方提出檢控的基礎是全然不同。

Unfortunately, throughout the trial the defence had never made clear to the jury of the basis on which the applicant pleaded guilty to the first charge.  And neither had the prosecution nor the defence explained to the jury how the quantities of the drugs as stated in the two charges were arrived at.  Neither party had submitted to the court a copy of the agreed facts in respect of the first charge.  It was only through counsel’s submission that we realised that the applicant pleaded guilty to the first charge not because he possessed the drugs for the purpose of unlawful trafficking.
不幸地，在審訊時辯方自始至終都沒有向陪審團說明申請人是基於甚麼因素承認第一項控罪。控辯雙方也沒有向陪審團交代兩項控罪中所述的毒品和重量是從何得來。控辯雙方同時亦沒有就第一項控罪提交一份雙方同意的案情。申請人非因管有毒品作非法販運用途而承認第一項控罪一點，本庭亦是在大律師陳詞時方得悉。

Throughout the trial, the prosecution case, the defence case and the trial judge’s directions to jury all focused on whether the applicant possessed the 4 blocks of drugs inside the paper bag for the purpose of unlawful trafficking.  The trial judge when directing the jury also made it clear that, in respect of the second charge, the prosecution had to prove the following three elements:
在整個審訊過程中，控方的案情、辯方的抗辯和法官指導陪審團的焦點都集中在申請人是否管有紙袋內的 4 磚毒品作非法販運用途。法官在引導陪審團時亦清楚說明在第二項控罪上，控方要證明以下 3 點：

the applicant possessed the drugs as stated in the charge;
申請人管有控罪所指的毒品；

the applicant possessed the drugs for the purpose of trafficking;
申請人管有毒品的目的是作販運用途；

the trafficking was unlawful.
其販運是非法的。

The trial judge also directed the jury that, when they were considering whether the applicant possessed the 4 blocks of drugs as stated in the second charge, if they believed the applicant’s explanation that at the material time his purpose and intention were to fetch one block of drugs for trafficking, then the jury had to consider finding the applicant not guilty.  However, at that time inside the car, there were 4 people besides the applicant, and the 5 blocks of heroin inside the paper bag could be possessed either solely by the applicant, or by someone else inside the car, or even jointly by all the people inside the car.  The prosecution said that what it had to prove was that the applicant possessed the 4 blocks of heroin for the purpose of unlawful trafficking.  The prosecution further said that it was not its case that everyone inside the car jointly possessed the 4 blocks of heroin or that a certain person possessed and trafficked in those 4 blocks of heroin.  Such propositions, in our view, over-simplified the legal issues involved in the present case.  It is true that the prosecution had to prove that the applicant trafficked in the 4 blocks of heroin as stated in the second charge.  The evidence, however, also showed that the driver had instructed the other passengers in the car to deal with the drugs inside the paper bag, and each of the passengers in the car did deal with those drugs.  The jury could not overlook this question when they considered whether the applicant possessed the drugs inside the paper bag.
法官更引導陪審團在考慮申請人是否管有第二項控罪的 4 磚毒品時，如果他們相信申請人所說他當時的目的及意圖只是提取 1 磚毒品販運，那麼，陪審團就要考慮裁定申請人無罪。然而，當時在車廂內，除申請人外還有其他 4 名人士，紙袋內的 5 磚海洛英既可能是全屬申請人管有，也可能是屬車內某人所管有，甚或可能是屬車內所有人共同管有。控方指它要證明的是申請人管有 4 磚海洛英作非法販運用途，控方更說它的案情並不是指車內各人共同管有該 4 磚海洛英或是某一人管有及販運該 4 磚海洛英。本庭認為這個論點是過份簡化了本案所涉及的法律問題。控方無疑是要證明申請人販運第二項控罪所指的 4 磚海洛英，但本案的證據同時顯示車輛的司機曾經指示車內其他乘客處理紙袋內的毒品，車內的其他乘客亦有各自處理袋內的毒品，因此，陪審團在考慮申請人是否管有紙袋內的毒品時是不能忽略上述問題的。

We do not agree with the submission made by Mr. Wong of counsel that it was unnecessary to explain to the jury the basis on which the applicant pleaded guilty to the first charge.  Given that it had not been made clear that the applicant pleaded guilty to the first charge not because he possessed the paper bag and the one block of drugs it contained, it was very probable that the jury might have wrongly taken the view that, by pleading guilty to the first charge, the applicant had also admitted to possessing the paper bag and the one block of drugs inside the bag, and hence it was no longer necessary for the jury to consider whether the applicant possessed the paper bag.  The jury might therefore have proceeded to consider whether the applicant possessed only the one block of drugs inside the paper bag or whether he possessed all the drugs inside the bag.  The situation became even more confusing when the trial judge, at the request of the defence, emphasized to the jury that they had to consider whether the applicant had knowledge that there were 4 other blocks of substances and that those substances were drugs.  The jury would very probably have been unable to clearly appreciate the conceptual difference between possession of the one block of drugs inside the paper bag and possession of the paper bag and all the items it contained.  The jury might very probably have misunderstood that, when the applicant pleaded guilty to the first charge, he had also admitted to possessing the paper bag, and, as a result, might have overlooked the applicant’s explanation that he only intended to fetch one block of drugs.
王大律師表示在審訊時不需要向陪審團說明申請人承認第一項控罪的基礎，本庭不同意。在沒有清楚說明申請人非因管有紙袋和內載的 1 磚毒品而承認第一項控罪的情況下，陪審團極有可能因申請人已承認第一項控罪，而誤以為申請人已承認管有紙袋和內載的 1 磚毒品，遂認為無需就申請人是否管有涉案紙袋一點上再費週章，而僅去考慮申請人是管有紙袋內的 1 磚毒品還是管有紙袋內全部毒品。當原審法官因應辯方要求，向陪審團強調須考慮申請人是否知悉紙袋內有其他 4 磚物品或其他 4 磚物品是毒品時，情況遂變得更加混淆不清。陪審團極有可能無法在概念上清楚區分管有紙袋內的 1 磚毒品和管有紙袋和內載的所有物品。同時，陪審團也極有可能因誤以為申請人在承認第一項控罪時已承認管有涉案的紙袋，而忽略了申請人稱他目的只為提取 1 磚毒品的解說。

The trial judge reminded the jury that they could not find the applicant guilty of the second charge merely because he was a drug addict and, in order to sustain his addiction, was prepared to deliver drugs for another person.  In our judgment, such a direction was inadequate in the circumstances of the case.
法官在引導陪審團時指他們不可以因為申請人承認是吸毒者，甚至因為要支持他的毒癮甘心替人帶毒品就認為他必然有干犯第二控項罪。本庭認為在本案的特殊情形下，這樣的指引是不足夠的。

We now consider whether such a defect should be accepted as a ground of appeal, given that the applicant did not explain at trial the reason behind his pleading guilty to the first charge.  First, the submission made by defence counsel to the jury did not include an admission that the applicant possessed the one block of drugs as stated in the first charge.  Second, we take the view that, as the defence counsel had not fully explained to the jury the grounds of the applicant’s defence, and those grounds went to the crux of the defence to the second charge, and in view of the fact that neither the prosecution nor the defence had disclosed how the quantities of drugs as stated in the charges were arrived at, justice requires that the applicant be given an opportunity to fully state his grounds of defence so that he can receive a fair trial.
本庭亦考慮申請人沒有在審訊時解釋承認第一項控罪的原因，現在可否容許這理由作為上訴的理由。首先，辯方律師向陪審團陳詞時沒有承認申請人管有第一項控罪所述的 1 磚毒品。其次，本庭認為在辯方律師沒有全面地向陪審團闡明申請人的答辯理由，而這理由又涉及第二項控罪的基礎答辯要點的情況下，再加上控辯雙方沒有向陪審團披露第一項控罪所指的毒品和份量是如何達致，按公義和公平審訊的原則，應給予申請人一個機會，以便他可以全面地提出他的抗辯理由。

Conclusion
總結

23.For the above reasons, the applicant’s conviction is, in our judgment, unsafe and unsatisfactory.  We grant leave to the applicant to appeal and, treating this hearing as the appeal itself, allow the appeal.  We set aside the applicant’s conviction on the second charge and order that the case be remitted for retrial on the second charge.  We also propose that, at the retrial, it should be made clear to the jury how the quantities of drugs as stated in the two charges were arrived at and on what basis the applicant pleaded guilty to the first charge.
基於上述原因，本庭認為申請人的定罪是不穩妥及不能令人滿意的。本庭批准上訴許可申請，並將這次聆訊當作正式上訴處理。本庭撤銷第二項控罪的定罪，並下令申請人需要就該控罪接受重審。本庭同時建議在重審時，應向陪審團說明兩項控罪所指的毒品和重量是如何達致，以及申請人是基於甚麼因素承認第一項控罪。