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

The applicant was charged with two counts of “trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134 of the Laws of Hong Kong).  She was convicted after trial before Deputy Judge Pang and a jury and was sentenced to 21 years’ imprisonment.
申請人被控兩項「販運危險藥物」罪名，違反《危險藥物條例》（香港法例第 134 章）第 4(1)(a) 及 (3) 條。經高等法院暫委法官彭偉昌及陪審團審理後，申請人被裁定罪名成立及判監 21 年。

On 20 February 2003, the applicant filed an application for leave to appeal against conviction.  However, on 13 May 2004 she filed a notice of abandonment dated 12 May 2004, and her application for leave to appeal was accordingly dismissed by the court on 13 May 2004.
申請人於 2003 年 2 月 20 日提交了一份針對定罪的上訴許可申請書，但卻於 2004 年 5 月 13 日就該申請存檔一份日期為 2004 年 5 月 12 日的放棄通知書。法庭根據有關放棄通知書於 2004 年 5 月 13 日撤銷申請人的上訴許可申請。

The applicant filed an affidavit with this Court on 16 October 2006, requesting this Court to order that her notice of abandonment was a nullity.
申請人於 2006 年 10 月 16 日向本庭提交了一份誓章，要求本庭判令她的放棄通知書無效。

Legal principles
法律原則

In HKSAR v Luo Shui Ji [2007] 3 HKLRD 114, this Court explained the legal principles governing the issue of treating a notice of abandonment as a nullity as follows:
本庭在香港特別行政區訴羅水基 [2007] 3 HKLRD 114 一案中就如何視放棄通知書為無效的法律原則作出以下的闡釋：

The right of appeal is conferred by statute.  Once an applicant abandons an appeal, which is then dismissed, the Court of Appeal does not have any inherent jurisdiction to entertain the reopening of the appeal unless the act of the abandonment is treated as a nullity or the matter is referred to the Chief Executive pursuant to section 83P of the Criminal Procedure Ordinance.  The court will treat an applicant’s act of abandoning an appeal as a nullity where, and only where, the act of abandonment was not the result of the applicant’s deliberate and informed decision, in other words, the applicant’s mind did not go with his act of abandonment.
上訴權是由法規賦予的。申請人一旦放棄上訴，以致上訴被撤銷，除非該放棄行為被視作無效、或是該事按《刑事訴訟程序條例》第 83P 條給轉交行政長官，否則上訴法庭並沒有固有司法管轄權重新處理上訴。法庭只可以在以下的情況才會視申請人放棄上訴的行為是無效的：申請人不是在知情的情況下刻意決定作出該放棄行為，即申請人的意願跟該放棄行為互不相稱。

Whether an applicant’s act of abandonment will be regarded as a nullity depends on whether he understood the effect or consequences of the document he was signing or whether he misapprehended the consequences of persisting with an appeal.  If the erroneous advice relied upon by the applicant relates to the nature or effect of the act of abandonment, the notice of abandonment will be regarded as a nullity.  If the applicant, properly informed and with knowledge of the nature and effect of the document he was about to sign, consciously signed the document, then it will be extremely difficult for him to show that the act of abandonment is a nullity.
申請人放棄上訴的行為可否被視作無效是關乎申請人對於他所簽署的文件的效用或後果是否了解，或者對於他假若堅持上訴的結果是否有所誤解。如果申請人所依賴的錯誤意見，與該放棄行為的性質或效果有關，則該放棄通知書會被視作無效。若申請人在恰當了解有關情況下，知道他所簽署的是甚麼文件，亦知道他所簽署的文件的效用，而他在這種知情的情況下，刻意簽署該文件，那他要證明該放棄行為為無效將會非常困難。

Grounds for application
申請理由

In her affidavit of 16 October 2006, the applicant set out the reasons for filing the notice of abandonment:
申請人在 2006 年 10 月 16 日的誓章中解釋她提交放棄通知書的原因：

It was through the Correctional Services Department that I filed a notice on 12 May 2004 to abandon my application for leave to appeal against conviction.  As my applications for legal aid [from the Legal Aid Department] and free legal assistance from the Bar Association were both rejected and I had no means to retain a private lawyer to assist me in the appeal, and the court refused to grant leave for extension of time to pursue the appeal, I had no alternative but to abandon the appeal.
「本人於 2004 年 5 月 12 日透過懲教署申請放棄上訴不服定罪，基於有關之法律援助申請已被拒絕而我向大律師公會申請法津義助服務亦被拒絕而我亦沒有經濟能力聘請私人律師協助案件上訴而法庭亦拒絕給予案件上訴延期，唯有放棄。」

In another written submission dated 11 May 2008, the applicant further explained why she abandoned the application for leave to appeal:
申請人在另外一份 2008 年 5 月11 日的書面陳詞中再解釋她當時放棄上訴許可申請的原因：

In this regard, it is necessary for me to provide your Lordships with an explanation.  At the time when I abandoned the application for appeal, I did misunderstand the consequences of abandoning the appeal.  All along, I believed that the best course open to me was to withdraw the application for appeal.  This was because I had repeatedly applied to the appellate judges for extensions of time as I had been unable to retain a lawyer to act for me, and the appellate judges had granted leave on a number of occasions.  For this very reason, I felt deeply embarrassed and helpless every time I attended the court hearing.  It was only when no further delay was possible that I decided to withdraw the application for appeal for the time being in order not to continue to hold up the Court of Appeal, and I would lodge an appeal again only when I was fully prepared for it.
「就此我必需要向各法官閣下作出解釋。當年我在放棄上訴申請之時，的確對放棄上訴之後果有所誤解。我一直以為當年我取消上訴申請是最好的做法。原因當年我一直未能聘請代表上庭一事，我已曾多次向上訴庭法官作出延期請求，上訴庭法官亦給予過我多次的批準。正因如此，每次當我到庭時，都深感非常尷尬及無奈，直到實在不能再延期的情況底下，我才決定先將上訴申請取消，以免一直阻延上訴庭審理案件的時間，直至待我就一切上訴事宜作好準備時，才再次提出上訴。

When I decided to withdraw the application for appeal for the time being, I genuinely thought that each case would, as a matter of course, offer one chance to appeal and one chance to appeal to the Court of Final Appeal.  I was therefore under the misconception that my right to appeal was preserved even though I abandoned the appeal for the time being.  It is exactly because of such belief that I have never stopped preparing for my appeal even though I have withdrawn the [application for] appeal.
當時在我決定先將上訴申請取消時，我真的以為每一件案件都必有一次上訴機會，和一次上訴終審法院的權利。因此我才誤以為，即使我先行放棄上訴，但同時亦是我保留上訴權利。正因我有此信念，所以我從來未有因為我已取消了上訴，而停止過繼續為我的上訴作準備。」

In our judgment, the applicant has failed to put forward sufficient grounds to prove that her act of abandoning the application for appeal was a nullity.  In fact, on 13 April 2004 the applicant wrote to the court with the following question:
本庭認為申請人並未能提供充份的理據來証明她放棄上訴申請是一項無法律效力的行動。其實，申請人在 2004 年 4 月 13 日曾致函法庭提出以下的問出題：

On the day of the appeal, if I apply again for legal aid but the application is rejected, can I immediately apply to the judge of the Court of Appeal for withdrawal of the appeal?  If the application for withdrawal is granted, will I have the right in future to apply again for appeal out of time?
「如果我在上訴當日向法院再次提出申請法律援助但遭到拒絕的話，本人是否可以即時向上訴庭法官申請即時取消上訴呢？假若上訴獲批準取消，它日我又有否權利再次申請過期上訴呢？」

At the hearing on 28 April 2004, this Court explained to the applicant that if she withdrew the application for leave to appeal, she would not be able to make the same application again.  On the same day, this Court adjourned her application for leave to appeal against conviction in order to allow her to seek legal assistance.  Only after that did the applicant file the notice of abandonment.
本庭已在 2004 年 4 月 28 日的聆訊向申請人解釋，若果她取消有關的上訴許可申請，她是不可以再次提出有關的申請的。在同日本庭將申請人針對定罪的上訴許可申請押後，讓她尋求法律協助。申請人之後才存檔了有關的放棄通知書。

New ruling
新裁決

The real reason behind the applicant’s present application is that she intends to rely, as a ground of appeal, on a new judicial decision which came into being subsequent to the trial of the present case.
申請人現時提出申請的真正原因是本案在審結後出現了一個新裁決，而申請人希望依賴這個裁決來作為她的上訴理由。

Facts of the present case
本案的案情

On 14 July 2002, the applicant was intercepted by Customs Officers while entering the territory via Lowu Check Point.  The Customs Officers found dangerous drugs in the backpack which the applicant was carrying (the first charge); upon search, another packet of dangerous drugs was found inside the applicant’s underpants (the second charge).
2002年 7 月 14 日申請人經羅湖口岸入境時被海關職員截停，關員發現申請人背着的背囊內藏有毒品（第一項控罪），關員亦在申請人的內褲裏搜出另一包毒品（第二項控罪）。

Legal presumptions
法律推定

In directing the jury on the legal presumptions in relation to the dangerous drugs inside the applicant’s backpack, Judge Pang said if the applicant was in direct custody of a bag containing dangerous drugs at the time, she would be presumed to possess the dangerous drugs in the bag.  Judge Pang also gave the following direction as to how the applicant could rebut this presumption:
彭法官就在申請人的背囊內的毒品向陪審團作出法律推定的指引。彭法官說若果申請人當時是直接保管着一個載有毒品的袋，她就會被法律推定為管有這個袋裏面的毒品的人。彭法官亦就申請人如何推翻這個法律推定作出了以下的指引：

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

In HKSAR v. Hung Chan Wa and another (2006) 9 HKCFAR 614, the Court of Final Appeal held that the relevant rule infringed the presumption of innocence and the right to a fair trial to which a defendant to a criminal case was entitled by virtue of the Basic Law and the Hong Kong Bill of Rights Ordinance.
終審法院在 HKSAR v. Hung Chan Wa and another （熊陳華[譯音] 及另一人）[2006] 9 HKCFAR 一案中裁定有關的法律推定違反了《基本法》及《香港人權法案》所賦予刑事控罪的被告人無罪推定及公平審訊的權利。

On the principle laid down in Hung Chan Wa, Judge Pang’s directions, which imposed on the applicant a “persuasive burden of proof” rather than a mere “evidential burden”, might have rendered the applicant’s conviction on the first charge unsafe.
根據彭法官的指引，申請人是要負上「須令人信服的舉証責任」而不單止是「提証的責任」。在這情況下，根據熊陳華一案所定的原則，申請人的第一項控罪的定罪基礎可能是不穩妥的。

Nevertheless, as the applicant has abandoned the application for leave to appeal, and we are unable to treat the application for abandonment as a nullity, the only avenue open to the applicant is to apply to the Chief Executive in accordance with section 83P of the Criminal Procedure Ordinance for a direction that the court is to re-open the appeal.
不過，由於申請人已經放棄了上訴許可申請，而本庭亦不能將有關的放棄申請書視為無法律效力的文件，故此申請人現時唯一可行的方法是根據《刑事訴訟程序條例》第 83P 條向行政長官提出申請，要求行政長官指令法庭重新處理上訴。

Conclusion
總結

The application is dismissed.
本庭駁回有關的申請。

Ms Lily Ho, Senior Government Counsel, for the Respondent.
答辯人：由律政司高級政府律師何眉語代表。

The Applicant in person, present.
申請人：無律師代表，親自應訊。