Hon Leong JA (giving the judgment of the Court):
上訴法庭法官梁紹中宣讀上訴法庭判案書:

On 24 July 1998, the Applicant for leave to appeal, Lee Chung Ming, Murphy was convicted before His Honour Judge Chow in the District Court of one count of trafficking in a dangerous drug.  He was sentenced to 4½ years’ imprisonment.  He now applies for leave to appeal against conviction.
上訴許可申請人李忠銘於一九九八年七月二十四日在區域法院被周兆熊區域法官裁定一項非法販運危險藥物罪罪名成立，被判監四年半，現申請許可上訴推翻定罪。

At about 10 p.m. on 20 July 1997 the Applicant was intercepted in the vicinity of Wun Wah House, Lok Wah Estate by two police officers, PC 53174 (PW1) and PC 48705 (PW3), who were conducting surveillance on criminal activities there.  114.64 grammes of a mixture containing 30.69 grammes of heroin hydrochloride were found on the Applicant.  The said mixture was contained in plastic bags found inside six cigarette packets.  When the drugs were found on him, the Applicant asked the police officers to give him a chance and not to arrest him, but the two police officers went on to arrest him.  Under caution, he again asked the officers to give him a chance and said he was merely “making a living”.  Later, a team of police officers conducted a search at the Applicant’s residential premises at Room 2905, Block C, Wun Wah House.  Apart from 24 plastic bags of the same type, the police officers did not find any other item of suspicion.
申請人是於一九九七年七月二十日晚上十時許在樂華邨奐華樓附近被當時在該處進行監視犯罪活動之警員之一，PC53174（即第一証人）及PC48705（即第三証人）截停。其後在他身上搜出含有30.69克鹽酸海洛英之114.64克之混合物，該混合物分別是裝於六個煙盒內之膠袋。當警員搜出毒品時，申請人要求警員給他一次機會不要拘捕他，但兩警員仍然將他拘捕。申請人在警誡下再次要求警員給予他一次機會，並稱他不過在『搵兩餐啫』。稍後一隊警員搜查申請人在奐華樓C座2905室之寓所。除搜出二十四個同樣之膠袋外，警員並無找到其他可疑物品。

The Applicant was then taken to Mongkok Police Station.  There PW1 interviewed the Applicant and, in the Record of Interview, post-recorded the circumstances of the arrest of the Applicant.  After the post-recording was completed, the Applicant wrote down the following: “I agree to the foregoing contents stated by Ah Sir.  The white powder was for my own consumption only!  I beg Ah Sir for a chance!  I beg you not to charge me with drug trafficking!  I do not want to say anything else.”  At trial, the Applicant objected to the prosecution adducing this Record of Interview as prosecution evidence.  He testified that the police officer did not find on him the dangerous drug involved in the case and that he did not make the above cautioned statement voluntarily.  He said when he was intercepted that night, the police officers asked him how much dangerous drug he had.  He answered that he only had a little more than two ounces of drug and that it was for his own consumption.  The police officer did not believe him and told him to surrender the drug trafficker, saying that if he did so, he would be released.  After that, a police officer grabbed his lower parts tightly and told him to make a decision promptly.  Later, police officers took him to the staircase at Wun Wah House.  Inspector Ting Chi Kwok (transliteration), who led the team, asked him whom he had in mind to surrender.  He was also told to look for the “distributor” and say that he wanted to buy dangerous drug.  But when he found the “distributor”, the “distributor” said there was no stock.  The police officers then went to his home to conduct a search and took down his mother’s identity card number.  After that, he was again asked to supply information of the drug trafficker, and he was unable to do so.  He was then brought inside the elevator and assaulted by the police officers, resulting in injury to his abdomen.  He said what he had written down, especially the sentence which asked the police officer not to charge him with drug trafficking, was dictated to him by the police officer.  When the officer noticed that what he had written down did not accord with what the officer meant, the officer then slapped him on the face.
申請人於是被帶往旺角警署，在該處第一証人會見申請人將拘捕申請人過程補錄於會面紀錄上，補錄完畢後由申請人寫下以下一段字句：『我同意以上阿Sir所講嘅內容。啲白粉係我自己食咋！求阿Sir俾次機會我啦！求你唔好告我販毒啦！其他嘢我唔想再講。』申請人於審訊時，反對控方以此會面紀錄呈堂為控方証據。他作証稱警員並沒有在他身上搜出涉案毒品，而上述警誡口供不是由他自願提供。他稱當晚被截停時警員問他有多少毒品，他答只有兩安士多一點，是他自己食用的，警員不相信，叫他把販毒的人交出來，對他說如果他這樣做，就會釋放他。其後有警員緊握他的下體叫他快點作出決定，稍後警員把他帶到奐華樓樓梯處，帶隊的督察丁治國問他想到交出誰人沒有，又叫他找『拆家』聲稱買毒品，但找到『拆家』後，『拆家』稱無貨。於是警員到他家中搜查，並抄錄他母親的身份証號碼。其後，再要他提供毒販資料，他無法做到，於是他被帶到電梯內，被警員毆打引致他腹部受傷。他稱他所寫下的，特別是他要求警員不要告他販毒那句說話，都是他按照警員所說出的寫下。而當警員發覺他寫下的偏離警員的意思時該名警員便掌摑他。

After evaluating the testimony of the police officers and of the Applicant, the Judge was satisfied that the dangerous drug in question was found on the person of the Applicant upon search and that the statement of the Applicant was made voluntarily by him to the police.  The Judge did not believe the police officer dictated the statements and compelled the Applicant to write them down.
法官分析各警員証人証供和申請人証供後，相信涉案毒品是在申請人身上搜出，而申請人的口供亦是他自願向警方提供的。法官不相信內容是由警員讀出，強迫申請人寫下。

The first ground of appeal contends that the sentences in the Record of Interview that the Applicant agreed to the contents of the post-record and that he asked the police officers to give him a chance and so on, were all written down when he was not under caution.  Mr. Kwok, Counsel for the Applicant, submits that this amounted to asking the Applicant to admit guilt in the absence of caution, and that the Judge erred in failing to consider this point.  Counsel also submits that, having ruled that the Record of Interview was voluntary, the Judge should have gone on to consider whether he should exercise his discretion not to admit the said Record as part of the prosecution evidence.
第一點上訴理由是，申請人在會面紀錄寫下他同意補錄內容，及要求警員給予機會等說話都是他在未警誡下寫的。申請人代表郭大律師指這是等同要申請人在未警誡情況下承認犯罪，而周法官未考慮這點是犯錯。大律師又認為周法官在裁定會面紀錄為自願後，應進而考慮他是否須行使酌情權否決該紀錄成為控方之一部份証據。

On the facts, the Applicant was arrested at 11.55 p.m. on 20 July.  On the following day, that is at 2.30 a.m. on 21 July, PW1 interviewed the Applicant.  A mere 2½ hours elapsed from the time of arrest to the time of interview.  The Applicant must still have had a clear idea of his right of silence, otherwise he would not have written at the end of the paragraph: “I do not want to say anything else.”  The relevant rules on the taking of statements from suspects do not provide that, after post-recording the arrest and cautioning processes, the police officer must caution the suspect again before asking the suspect whether he agrees to the post-recorded contents and before the suspect signs the statement.  The Judge did not explain in detail in his Reasons for Verdict why he admitted the Record of Interview as evidence.  However, after evaluating the evidence, he ruled that the Record of Interview could be adduced as prosecution evidence.  This shows that he must have believed that the Record of Interview was made voluntarily by the Applicant.  There were no special circumstances in this case that justified an exercise of discretion to refuse to admit the Record of Interview.  Generally speaking, a judge is not required to set out in detail the reasons for admitting or rejecting the Record of Interview as evidence.  This legal principle is well-established and supported by authorities.  Therefore, the first ground of appeal fails.
根據案情，申請人是於七月二十日晚上十一時五十五分被捕，翌日，即二十一日凌晨二時三十分，第一証人與申請人會面。由拘捕至會面時間，相差不過兩個半小時多。申請人對於他可保持緘默之權利，必然記憶猶新。不然申請人不會於該段末寫下：『其他嘢我唔想再講。』警員錄取疑犯口供之有關守則，亦無規定警員必須在補錄拘捕及警誡疑犯過程後，詢問疑犯是否同意補錄內容及疑犯簽署前，再次警誡疑犯。周法官雖然沒有在裁決理由書中詳細陳述他接受會面紀錄呈堂之理由，但他分析証據後，裁定會面紀錄可呈堂為控方証供，這必然是他相信會面紀錄是申請人自願提供的。本案案情亦無特別情形以致周法官須運用酌情權否決會面紀錄呈堂。一般來說法官是無須就接受或否決會面紀錄呈堂之決定，以詳細理由作出解釋。這是既定而有案例支持的法律原則。所以第一項上訴理由不成立。

The second ground of appeal contends that, in relation to the Applicant’s good character, the Judge had not directed himself to consider the Applicant’s credibility and propensity to commit crime.  The Judge made it clear towards the end of the Reasons for Verdict that he was aware that the Applicant had a clear record.  He said, “I am aware that the Defendant does not have any criminal record.  But a good character direction is not applicable in this case because the Defendant in fact does not have a good character.  The main reason is he has admitted to possessing ‘two ounces odd’ of dangerous drug and has admitted that he is a drug addict.  Previously, before 20 July, he has taken dangerous drug.”  Counsel for the Applicant submits that these words indicate that the Judge had not dealt with the evidence of the Applicant’s good character in accordance with the law.
第二項上訴理由是法官未就申請人之良好品格作出自我引導，考慮申請人之可信性及犯罪傾向。周法官在裁決理由書末部聲明他知道申請人並無刑事紀錄。他稱：『本席知道被告人沒有刑事紀錄，但良好品格指引在本案並不適用，因為被告根本上沒有良好的品格，主要原因是他承認管有「兩安幾」的毒品，而他亦承認他是一個有毒癮之人，以前，在七月二十日之前，曾經使用過毒品。』申請人代表大律師指從這段話，可見周法官並未按照法律處理申請人品格良好的証據。

In Tang Siu-man v. HKSAR [1998] HKLRD 350, Mr. Justice Litton PJ made the following comments on the law regarding good character directions.  His view was that, if at the trial of a defendant with no criminal record, information on the good faith of the defendant was disclosed, the judge had a discretion to assess whether the defendant was of good character.  The primary consideration was that the judge’s self-direction must be fair and balanced.   Applying that principle and taking the facts of this case as a whole, the Applicant having admitted in court to taking and possessing dangerous drug, the Judge was certainly entitled to exercise his discretion to assess whether the Applicant was of good character.  That the Applicant in fact did not have a good character was a conclusion that the Judge arrived at in the exercise of his discretion.
在鄧兆文訴香港特別政區(1)（譯音）一案，列顯倫大法官就有關良好品格指引有以下法律意見。他認為如果在審訊一名無刑事紀錄的被告時，有關該被告誠信之資料被披露，法官有酌情權評估該被告是否一名品格良好的人。主要之考慮是，法官對自己的指引必須是公正及持平。按照該原則，以本案整體案情而言，既然申請人在庭上承認吸毒及管有毒品，周法官當然有理由運用他的酌情權評估申請人是否品格良好。而周法官認為申請人根本上沒有良好品格是他運用酌情權評估後的結論。

We take the view that people of good character are not confined to those who do not have any criminal record.  In the case of the Applicant, we agree that a good character direction was not applicable.  We cannot detect any error in the Judge’s decision in this respect.
本庭認為良好品格者不限於無刑事紀錄的人，以申請人之情況，本庭同意良好品格指引不適用於本案，周法官在此方面之裁決，本庭認為沒有錯誤。

The third and the fourth grounds of appeal are as follows: PW2, PC 50508 had testified in another case.  His testimony was not accepted by the judge, and in the end the defendant in that case was acquitted.  Following that case, PW2 was charged with perjury.  At the time of trial of the present case, PW2 was awaiting trial of that perjury case.  The Applicant contends that there were grave doubts about PW2’s credibility.  According to the facts of the case, on the night in question, PW2’s involvement in the case was limited to conducting surveillance in the vicinity of Wun Wah House and participating in the search of the Applicant’s premises. PW2 was not involved in the arrest of the Applicant.  When the Applicant made the verbal admissions in question after the arrest, PW2 was not present either.  When PW2 was notified and arrived at the scene, the Applicant had already been arrested and handcuffed.  Therefore PW2 had no significance in the present case.  The fact that PW2 was the defendant in a perjury case should not have affected the ruling of the Judge.  Counsel for the Applicant contends that the Judge had stopped him from cross-examining PW2 in detail about the perjury case.  Having studied the relevant transcript, we are of the view that the Judge had not obstructed the cross-examination by Counsel for the Applicant in this respect.  In fact, in the perjury case, PW2 was acquitted after trial in the District Court.  PW2 had not been found to be an untrustworthy person who had committed perjury.  Therefore, this matter would not have affected the Judge’s assessment of PW2’s credibility.
第三、四項上訴理由是：第二証人PC 50508曾在另案作証，他在該案的証供不被法官接納，結果該案被告獲釋放。事後，由該案引起，第二証人被控發假誓。於本案審訊時，第二証人正等候該發假誓案之審訊。申請人指第二証人的可信性十分值得懷疑。根據案情案發當晚第二証人除在奐華樓附近進行監視及曾與其他警員到申請人寓所搜查外，與拘捕申請人之經過無關。申請人在被拘捕後作出有關口頭承認時，第二証人亦不在場。當第二証人接獲通知到達拘捕現場時，申請人已被拘捕，而且已被帶上手扣，所以第二証人於本案並無重要性關係。至於第二証人曾為發假誓一案之被告，此點應不會對法官之裁決有所影響。申請人代表大律師聲稱第二証人作証時，周法官阻止他就發假誓一案詳盡盤問第二証人。本庭閱覽審訊謄本後，認為周法官並無妨礙申請人代表大律師在此方面的盤問。發假誓一案，經區域法院審訊後，第二証人被判無罪釋放，第二証人沒有被認定為曾發假誓不可信之人。所以，此事不會影響法官對第二証人可信性之評估。

The other grounds of appeal contend that the prosecution had failed to disclose to the defence that there had been complaints against PW2, PW3 and PW5 for failure to discharge their duties.  The materials furnished to us by the prosecution show that the complaints concerned were received in June and September 1997.  The recommendation of taking disciplinary action against the three witnesses, the disciplinary hearing and the outcome thereof were all subsequent to the trial of this case, which took place on 24 July 1998.  The result of the disciplinary hearing was that the three witnesses had not been in breach of the relevant rules.  In other words, the investigation committee found that the complaints had not been established at all.
其他上訴理由指控方未有向辯方披露第二、第三及第五証人曾被投訴未盡職責。根據控方向本庭提供之資料，有關投訴是於一九九七年六月及九月期間接獲，本案審訊日期為一九九八年七月二十四日。該三名証人之紀律處分建議，聆訊經過及結果同是於本案審訊後發生，聆訊結果是他們無干犯紀律。因此，投訴已被調查委員會認定完全不成立。

Counsel for the Applicant contends that at trial the prosecution should have disclosed to the defence that the three police officers were subject to a disciplinary hearing and that the Judge, having been informed of this, should have adjourned the trial until after the conclusion of the disciplinary hearing.  Counsel for the Applicant contends that the prosecution’s failure to disclose the above fact represented a failure of the prosecution to discharge its duty to provide relevant information to the defence.
申請人代表大律師稱控方須於審訊時向辯方透露該三名警員正面對紀律處分聆訊，而周法官亦應在知道有此情況存在時，將審訊押後至紀律聆訊完畢，才繼續審訊本案。申請人代表大律師指控方沒有將此情況披露是控方沒有盡提供資料給予辯方的責任。

It is true that, in principle, the prosecution has a duty to provide the defence with materials which may affect the prosecution evidence or support the defence case, so that the defence can cross-examine the prosecution witnesses on that basis in order to test their credibility, and so that the trial judge can be made aware of the background of the witnesses, which may have a bearing on his assessment of their credibility.  In our view, however, if the materials are beyond the knowledge or control of the prosecution and hence the prosecution is not in a position to provide such information, then the prosecution cannot be said to have failed to discharge its legal duty.
本庭認為雖然原則上，控方有責任將有關可能影響控方証供或支持辯方案情之資料向辯方提供，以便辯方可以此為依據盤問控方証人，以測試証人之可信性，和使主審法官對証人背景有知悉，以評估証人之可信性，不過，如資料不在控方知悉或控制範圍內以致控方未能提供該資料，那就不能說控方未履行法律定下之責任。

In the present case, at the commencement of trial, the information in the possession or knowledge of the Prosecution was limited to the complaints against the three police officers.  The prosecution could not possibly disclose whatever that might happen subsequently.  The contention that the prosecution had not discharged its duty is simply unsustainable and cannot form the basis for saying that the Judge’s verdict was erroneous or that the conviction was unsatisfactory or improper.
以本案而言，控方在本案審訊開始時所管有或獲悉之資料只限於三名警員被人投訴。而事後一切可能發生之事控方當時是無法披露的，所以指控方未盡責任一說並不正確，而且這亦不能成為指責周法官判決錯誤，或該判決不能令人滿意或有不妥善之處。

We take the view that the evidence in the present case, once accepted by the Judge as true, is sufficient to support the Applicant’s conviction.  Indeed, the Judge had not harboured any doubt about the prosecution’s evidence.  We consider the conviction unassailable and in no respect unsatisfactory.  The application for leave to appeal is accordingly dismissed.
本庭認為本案証供，一旦被周法官接納為真實，是足以支持他裁定申請人罪名成立。而周法官對控方証據毫無懷疑。本庭認為裁決是無可質疑，亦無不令人不滿意之處。申請上訴許可駁回。

Court of First Instance
註：(1)TANG Siu-man v. HKSAR [1998] HKLRD 350

Mr. A Luk, Deputy Director of Public Prosecutions and Ms. C Ko, Senior Government Counsel, for the Respondent.
答辯人：由陸貽信副刑事檢控專員及高寶翠高級政府律師代表

Mr. Eric Kwok, assigned by the Legal Aid Department, for the Applicant.
上訴許可申請人：由法律援助署委派郭楝明大律師代表