Hon Yeung VP (giving the judgment of the Court):
高等法院上訴法庭副庭長楊振權頒發上訴法庭判案書：

Introduction
引言

On 24 September 2014, at Frankfurt Airport, German Customs officers intercepted three postal parcels from Bolivia and destined for Hong Kong. The names, addresses, and contact phone numbers of the recipients of the three postal parcels were all different.
2014年9月24日，德國海關關員在法蘭克福機場截獲三個從玻利維亞寄出，目的地是香港的郵包。該三個郵包的收件人的名字、地址和聯絡電話號碼都是不同的。

The three postal parcels each contained a similar quantity of powder with a similar quantity of cocaine respectively. The total weight of the powder was 4.96 kg and the total weight of cocaine was 4.23 kg with a market value of HK$4,800,000.
三個郵包內分別載有份量相約的粉末，內含份量相約的可卡因。粉末總重量為4.96公斤，內含可卡因的總重量為4.23公斤，巿價則約為480萬港元。

On 7 October 2014, a German Customs officer escorted the three postal parcels to Hong Kong and handed them over to the Customs and Excise Department for their handling.
2014年10月7日，一名德國海關關員護送上述三個郵包到香港及將它們交給香港海關處理。

On 8 October 2014, Customs and Excise Officer 07193, taking charge of one of the parcels [recipient: John Lam, address: 6/F, 333-337 Tai Nam Street, Sham Shui Po, phone number: 9761 7852], used a mobile phone provided by the Department to call the recipient of the parcel, John Lam. At 11:30 am on the same day, (the officer) took the parcel to 333-337 Tai Nam Street, called the number 9761 7852 and succeeded in arranging the delivery of the postal parcel to the recipient.
2014年10月8日，香港海關關員07193根據其中一個郵包（收件人：John Lam，地址：深水埗大南街333-337號6/F，電話號碼：9761 7852），以部門提供的手提電話致電郵包收件人John Lam，並在同日上午11時30分帶同該郵包前往大南街333-337號，及致電9761 7852並成功和收件人安排遞交郵包。

Subsequently, Tang Kwong-ho (transliteration) [Tang] opened the main door of Ground Floor, 333-337, Tai Nam Street.  Upon inquiry, the customs officer handed over the postal parcel to Tang. Upon signing to acknowledge receipt (of it), Tang returned to the building with the parcel, but he was eventually arrested.
其後鄧光賀（鄧）打開大南街333-337號地下大門。經查問後，海關關員將郵包交給鄧。鄧簽收後，帶同郵包返回大廈內，但結果被拘捕。

Customs and Excise Officer 06143 arrested the Applicant [Lai Kam-fat] at 12:05 p.m. the same day at the Pei Ho Street Market near the exit on the ground floor of Kweilin Street and found five mobile phones on his person. There were 15 photos on a black Samsung mobile phone, all related to the tracking of the deliveries of the three postal parcels involved in the case. The information stored on a white Samsung mobile phone showed 10 records of communications with Tang’s mobile phone from 9:48 a.m. to 11:54 a.m. on 8 October 2014. The records on the other two mobile phones also showed communications with the Customs officer on many occasions. These communication records were all related to the arrangements with the Customs officer(s) for the delivery of the postal parcel(s) involved in the case.
海關關員06143在同日中午12時05分在北河街街巿近桂林街地下出口拘捕申請人（黎錦發），並在他身上搜出5部手提電話。一部黑色三星手提電話內有15張相片，都是和追蹤涉案三個郵包的運送行踪有關；一部白色三星手提電話內載的資料顯示，在2014年10月8日上午9時48分至11時54分，有10次和鄧的手提電話的通話記錄。其餘兩部手提電話的通話記錄亦顯示電話曾多次和海關關員有通話。該些通話記錄和海關關員安排遞交涉案郵包有關。

Customs and Excise Officer 98201 also found three pieces of paper among the seized items of the Applicant which showed the air waybill numbers and the recipients’ names of the three parcels involved in the case.
海關關員98201亦在申請人被扣押的物品中發現三張顯示涉案三個郵包的航空單編號及收貨人名字的紙張。

With respect to the above incident, the Applicant was charged with conspiracy to “traffic in dangerous drugs” with Tang, “Ko Lo (transliteration)” and other unknown persons. The Applicant pleaded not guilty and was tried before Li J [the trial judge] sitting with a jury.
就上述事件，申請人被控和鄧、“高佬”及其他身份不詳的人串謀“販毒”。申請人否認控罪，並在高等法院原訟法院法官李瀚良（原審法官）會同陪審團席前受審。

On 24 March 2017, the jury unanimously found the Applicant guilty of the charge. On 27 March 2017, the trial judge sentenced the Applicant to 29 years’ imprisonment.
2017年3月24日，陪審團一致裁定申請人罪名成立，而原審法官在2017年3月27日判處申請人入獄29年。

The Applicant filed an application for leave to appeal against conviction and/or sentence.
申請人不服定罪及判刑，並提出上訴許可申請，要求獲准就定罪及/或判刑上訴。

On 9 December 2017, the Applicant notified this Court that he withdrew the application for leave to appeal against sentence and consequently the application was dismissed. Accordingly, this Court only needs to deal with his application for leave to appeal against conviction.
2017年12月9日，申請人知會法庭放棄就判刑提出的上訴許可申請，該上訴許可申請亦因而被撤銷。因此，本庭只需處理申請人就定罪提出的上訴許可申請。

Prosecution Case and Evidence
控方指控及證據

The Prosecution alleged that the Applicant entered into an agreement with a man called “Ko Lo” and Tang, conspiring to receive three postal parcels from Bolivia which contained a large quantity of cocaine. As a result, on 8 October 2014 the Customs and Excise Department carried out the abovementioned controlled delivery operation of one of the postal parcels. The Prosecution alleged that the Applicant knew that the postal parcel contained cocaine and therefore got Tang to receive (it) for him. The Prosecution alleged that the Applicant was responsible for tracking the postal parcel, contacting the courier and making arrangements for Tang to receive the postal parcel.
控方指申請人和一名叫“高佬”的男子和鄧達成協議，串謀接收三個源自玻利維亞，內藏大量可卡因的郵包。結果，在2014年10月8日，海關就其中一個郵包進行上述的監控遞送行動。控方指申請人知悉郵包內藏有可卡因，故找鄧代為接收。控方指申請人是負責追蹤郵包、聯絡速遞員及安排鄧去接收郵包。

In addition to the undisputed facts of the background described above, the Prosecution’s evidence against the Applicant mainly came from Tang. Aged about 18, Tang had just dropped out of school at the time of the case. After Tang had admitted “trafficking” in relation to his receiving a postal parcel containing cocaine on 8 October 2014, he testified against the Applicant as an accomplice.
除了上述無爭議的背景事實外，控方針對申請人的證據主要源自鄧。鄧約18歲，案發時剛輟學。鄧承認“販運”他在2014年10月8日接收一包載有可卡因的郵包後，以污點證人身份作供指證申請人。

Tang stated in his evidence that three or four months before the case he came to know and socialise with the Applicant. During their socialisation, the Applicant would pay the expenses on most occasions. Tang considered the Applicant a trustworthy person who kept his word.
鄧作供時指在案發前三、四個月認識申請人，並和他交往。交往期間，申請人大多數會支付有關費用。鄧認為申請人守信用是值得信賴的人。

According to Tang, in early September 2014, the Applicant asked him to help receive (a) postal parcel; the postal parcel was “coke”. Tang stated that he knew “coke” was a dangerous drug but had no idea what kind of dangerous drug it was.  Tang stressed that the Applicant had indicated that “the (one) up above would throw down 100,000 dollars” in which each person could get half. After Tang had agreed, the Applicant instructed him to wait for phone calls, and Tang was aware that he was going to receive more than one parcel. According to Tang, at the time of the case he had just dropped out of school. With no income, he had to depend on his family to give him pocket money and so $50,000 was a huge amount of money. Moreover, he did not understand the serious consequences of trafficking in dangerous drugs, so he accepted the Applicant’s proposal.
鄧聲稱在2014年9月初，申請人要求他幫手接收郵包，而郵包是“可樂”。鄧表示知悉“可樂”是毒品，但不清楚是那一種毒品。鄧強調申請人曾表示“上面會抌10萬元落嚟”，他們可以一人一半。鄧同意後，申請人指示他等候電話，而鄧亦明白他要接收的郵包不止一個。鄧指案發時，他剛輟學，沒有收入，靠家人給予零用錢，故5萬元是很大的金額，而他亦不知道販毒的後果的嚴重性，故接受申請人的建議。

According to Tang, on the day in question, the Applicant instructed him to receive the postal parcel, but he was worried that he would be arrested. The Applicant suggested that Tang should pretend he knew nothing if he was arrested; by doing so there would be insufficient evidence and the prosecution could not stand. Tang also thought that he would be fine by feigning ignorance.
鄧指案發當天，申請人指示他去接收郵包，但他擔心被捕，申請人建議鄧若被拘捕，就扮甚麼都不知，這樣做就會證據不足，檢控是不會成功的。鄧亦以為扮不知就會無事。

Tang recounted that shortly before 10 a.m. on the day in question, i.e. 8 October 2014, the Applicant called him, told him to receive a postal parcel, and arranged to meet him at Sham Shui Po MTR station at 10:30 a.m. After they met, according to Tang, they went together to No. 333 Tai Nam Street. During that time, the Applicant instructed Tang to go into the building by pretending to be an occupant and to wait for his telephone instructions. Then the Applicant left immediately. As a result, after Tang had waited on the top floor of the building for several hours, the Applicant called, telling him to get ready to go downstairs to receive (a) postal parcel and to wait for his further instructions after receiving it. As it turned out, Tang went downstairs and saw the courier. Tang pretended he was Mr. Lam, but after checking his identity card, the Customs officer who was disguised as the courier pointed out that he was not Mr. Lam. Then Tang said he was receiving (it) on someone’s behalf. So the Customs officer who was disguised as the courier jotted down Tang’s name and the number of his identity card and handed to Tang the postal parcel involved in the case. When Tang was about to go back into the building, he was arrested.
鄧重申案發當天即2014年10月8日早上10時前不久，申請人來電要他接收郵包，並約他在上午10時30分在深水埗地鐵站會合。鄧指兩人會面後，一起前往大南街333號，期間，申請人指示鄧扮住客進入大廈，並等候他的電話指示，而申請人則隨即離開。結果鄧在大廈內頂樓等了數小時後，申請人來電叫他作準備落樓及收郵包並於收取郵包後，繼續等候他的指示。結果鄧落樓後見到速遞員。鄧冒認自己是林先生，但假扮速遞員的海關關員看過鄧的身份證後，指出他並非林先生。其後鄧說自己是代收，結果假扮速遞員的海關關員抄下鄧的名字和身份證號碼後就將涉案郵包交給鄧，而鄧準備返回大廈時就被拘捕。

According to Tang, while he was waiting on the top floor of the building, the Applicant called him and told him to open the main gate of the building to let the Applicant in. Also, many calls were made to instruct him to receive the postal parcel. Tang’s phone call records showed that from 9:56 a.m. to 12 noon on 8 October 2014, there were 10 phone conversations with the Applicant. Tang also said that during that period of time, the Applicant had entered the building via another entrance and had a conversation with him.
鄧指在大廈內頂樓等候期間，申請人曾致電給他，要他打開大廈閘門給申請人進入，亦曾多次以電話指示他收取郵包。鄧的電話通話記錄顯示在2014年10月8日早上9時56分至正午12時期間，有10次和申請人通話。鄧亦指期間申請人有經另一入口進入過大廈並和他對話。

Tang admitted that after he was arrested, (he) did indicate to the Customs officer(s) that he had no idea what the postal parcel contained. He also said that it was parallel goods, which he received for other people for $100 or $200.  Tang admitted when he was interviewed by the customs officer(s), he feigned ignorance in order to exonerate himself.
鄧承認被拘捕後，曾向海關關員表示不知道郵包所載的是甚麼東西，亦有說過是水貨，是他為了一、兩百元而幫人收取。鄧承認被海關關員接見時，他是為了脫罪故扮作甚麼都不知道。

Tang explained that during the video-recorded interview he did not tell the Customs officer(s) that he and the Applicant met up at Sham Shui Po MTR station, because at that time he did not know the Applicant was present. He gave his identity card to the Customs officer who delivered the postal parcel and signed the receipt because he thought it was normal procedure to do so, and he thought the person who delivered the parcel was a real courier.
鄧解釋在錄影會面時沒有向海關關員表示曾在深水埗地鐵站和申請人會合，原因是他當時不知道申請人在場。他將身份證交給送交郵包的海關關員及在簽收單上簽名，因為他以為該做法是正常程序，而當時他亦認為送交郵包的人是真正的速遞員。

The Applicant was questioned by Customs officers after his arrest.  The Applicant admitted that he had in his possession a black Samsung mobile phone on which there were 15 photos related to the postal parcel involved in the case. The Applicant stated that it was a person called “Ko Lo” who told the Applicant to take those photos on a computer and to show (them) to him. And on each occasion “Ko Lo” would give him $50. Later “Ko Lo” gave him $500 and requested the Applicant to receive three postal parcels on his behalf. The Applicant did not admit that he knew the postal parcel contained a dangerous drug.
申請人被捕後曾接受海關關員的問話，申請人承認他管有的一部黑色三星手提電話，內有15張和涉案郵包有關的照片。申請人指是一名叫“高佬”的人要申請人在電腦拍攝該些照片給他看，而每次“高佬”會給他50元。後來“高佬”給他500元，並要求申請人代他接收3個郵包，申請人沒有承認他知悉郵包內載有毒品。

Subsequently, the Applicant further attended a video-recorded interview with customs officers. The Applicant said he made a living by working as a casual decoration worker at a daily wage of $400 to $500.  At times he also worked in restaurants. He said he owed his friends several thousand dollars because he did not have a job and money to buy meals.
其後，申請人再和海關關員進行錄影會面，申請人表示自己以裝修散工為生，日薪400至500元，有時亦會在餐廳工作。他指自己欠朋友數千元，原因是冇工開及冇錢吃飯。

According to the Applicant, he was collecting goods for “Ko Lo” in the vicinity of Tai Nam Street and Kweilin Street at about 11 a.m. on 8 October 2014.  He said he did not know “Ko Lo’s” phone number or his full name and (he) seldom contacted him. If necessary, “Ko Lo” would look for him in places like McDonald’s, Lung Wai (transliteration) Video Game Centre or cyber bars and so on.
申請人指在2014年10月8日上午11時許在大南街、桂林街附近幫“高佬”收貨。他表示不知道“高佬”的電話或他的全名，亦很少和他聯絡，而“高佬”有需要時則會去麥當勞、龍威機鋪或網吧等地方找他。

As indicated by the Applicant, on about 25 September 2014, “Ko Lo” indicated that he did not know how to use a computer, and (he) gave him three numbers, asking him to check on the Internet how TNT, a courier company, had been shipping the goods. Following the instructions of “Ko Lo”, the Applicant took screen shots of the shipment records and handed them to “Ko Lo” for him to see. The Applicant said he did not know the English address(es) shown in the records.
申請人表示在2014年9月25日左右，“高佬”表示不懂用電腦，並給予申請人三個號碼，要他上網查看TNT速遞公司的送貨情況。申請人按“高佬”的指示，從螢光幕拍下送貨記錄並交給“高佬”查看。申請人表示不知道記錄所顯示的英文地址。

The Applicant further said that three or four days before the day in question, “Ko Lo” wanted the Applicant to collect the goods. “Ko Lo” gave him two mobile phones, instructed him to collect the goods as soon as he received his call, and gave him $500 as travelling expenses. “Ko Lo” also instructed him to receive the goods with “Ho Tsai” (transliteration). As a result, he said to Tang he would have several hundred dollars as a reward after receiving the goods.
申請人續稱案發前三、四天，“高佬”要申請人去收貨。“高佬”將兩部手提電話交給他及指示他有電話到就要去收貨，並給他500元作車馬費。“高佬”同時指示他和“賀仔”一起去收貨。結果，他向鄧表示收貨後會有數百元作為報酬。

The Applicant also stated that “Ko Lo” indicated when somebody called him and wanted him to receive the goods, he did not have to bother about the recipient’s name. “Ko Lo” did not explain to him what to do in case the recipient’s name was different. But he said the three parcels would arrive at the same time. The Applicant stated expressly that he did not know the recipient John Lam or the other two recipients of the goods.
申請人亦指“高佬”表示有人打電話來要他收貨時他不用理會收貨人的姓名。“高佬”沒有向他解釋收貨人的名字不同時如何處理，但表示三件郵包會一起抵達。申請人表明不認識收貨人John Lam或其他兩名收貨人。

The Applicant claimed that at around 9 a.m. in the morning of 8 October 2014, a staff member of the courier company called and told him that the goods had arrived and wanted to arrange with him the time and place for receiving the goods. Consequently, the Applicant called Tang and told him to receive the goods and, upon receipt of the goods, to pass the parcel(s) to him, and then he would take it/them to “Ko Lo”.  The Applicant said Tang knew he was in the vicinity of Kweilin Street and Tai Nam Street. And after Tang had received the parcel(s), he would take it/them to the McDonald’s in Camp Street and handed it/them to him.  But as it turned out, he was arrested by the Customs officer(s).
申請人聲稱是在2014年10月8日早上9時許，速遞公司的人員打電話給他說貨到，並要和他安排收貨的時間和地點。結果申請人打電話給鄧著他收貨及收貨後將郵包交給他，再由他送給“高佬”。申請人指鄧是知悉他會在桂林街、大南街附近，而鄧收取郵包後，會將郵包帶往營盤街的麥當勞交給他，但結果他卻被海關關員拘捕。

The Applicant gave explanations with respect to the call records on those phones in his possession and the $20,000-odd in his current account. The Applicant said at first he was suspicious of the postal parcels involved in the case, but “Ko Lo” said nobody would send dangerous drugs by post, and if the Applicant was not free, he could ask somebody else to receive it/them on (his) behalf. So he did not think there was anything wrong and acted according to “Ko Lo’s” instructions.
申請人有就他管有的不同電話的通話記錄和其帳戶內的2萬多元的往來作出解釋。申請人表示初期對涉案郵包有懷疑，但“高佬”說無人會寄毒品，而如申請人無空，可叫他人代收，故他覺得沒有問題，便按照“高佬”的指示行事。

The Stance and Evidence of the Applicant
申請人的立場和證據

The Applicant’s stance is that he did not tell Tang that the postal parcel contained a dangerous drug. It is Tang who falsely accused him by telling lies in order to have his sentence reduced.  The Applicant agreed that he did instruct Tang to receive the postal parcel, but he knew nothing about the postal parcel containing a dangerous drug. When he gave evidence in his defence, he enumerated his work experience. He said he had worked in the assembly-disassembly business, as a courier contractor, and in a skewer shop, but at the time the case occurred, he was unemployed, only doing casual work.  The Applicant said he came to know “Ko Lo” when he was doing an assembly-disassembly job at the Convention and Exhibition Centre, and got to know him well when hanging out with him in video game centres.  He also said he came to know Tang in June or July 2014 and had had meals and played video games with him since.
申請人的立場是他沒有向鄧說過郵包載有毒品，是鄧說謊誣告他以取得減刑。申請人同意有指示鄧去接收郵包，但表示對郵包藏毒一事不知情。作供自辯時，申請人列出他的工作經驗。他指自己從事過裝拆、速遞外判及串燒店，但案發時失業，只做散工。申請人表示在會展做裝拆時，認識“高佬”，並在機鋪和他混熟。他亦表示在2014年6、7月認識鄧後有和他一起食飯和打機。

The Applicant said that on 25 September 2014, “Ko Lo” asked him if he knew how to access the Internet, and asked him to track on the Internet the whereabouts of some goods for him. So “Ko Lo” gave him the waybill for the three parcels of goods, telling him to take screen shots for him to see. He said that at the time “Ko Lo” did not ask him to receive the postal parcels on (his) behalf. But between 3 and 6 October 2014, “Ko Lo” said at the McDonald’s that as he had to work and was not free, he asked the Applicant to receive the postal parcels on (his) behalf.  When the Applicant asked “Ko Lo” what the parcels were, “Ko Lo” said they were not guns, stoves or dangerous drugs, and they would arrive in Hong Kong within one or two days. At that time, in addition to a piece of paper containing the recipient’s/recipients’ address(es) and name(s), “Ko Lo” also gave him two mobile phones and $500 as travelling expenses. But the Applicant indicated to “Ko Lo” at once that he had to go back to Mainland China and would get somebody to receive it/them on (his) behalf.
申請人指2014年9月25日，“高佬”問他是否懂得上網，並要他在網上代查一些貨物的行踪。結果“高佬”將三包貨物的貨單交給他，要他在網上拍照後將相片給他看。他指當時“高佬”並沒有要他代收郵包。但在2014年10月3至6日期間，“高佬”在麥當勞表示自己要返工及沒有空，故要求申請人代收郵包。當申請人問“高佬”郵包是甚麼東西時，“高佬”說不是槍、不是爐，亦非毒品，而郵包會在一、兩天內到香港。當時“高佬”除了將一張有收貨人地址和姓名的紙交給他外，亦將兩部手提電話和500元交通費交給他。但申請人即時向“高佬”表示自己要返回國內故會找人代收。

The Applicant stated he went back to the Mainland on 7 October 2014 and the following day, i.e. at around 9 a.m. on 8 October 2014 he returned to Hong Kong. The Applicant insisted that after he passed through immigration control, he received a call from the courier company saying that the goods would be delivered to No. 333 Tai Nam Street. Therefore, he called Tang, asking if he could receive (it/ them) on (his) behalf. Tang said he was in Sham Shui Po and could get there in 15 minutes. Consequently, the Applicant informed Tang the address to receive the goods. The Applicant insisted that he did not go to Sham Shui Po MTR station to meet up with Tang. Instead he went home to change his clothes.
申請人指在2014年10月7日，他返回國內，並在翌日，即2014年10月8日早上9時許返回香港。申請人力稱過關後收到速遞公司的電話及表示會送貨到大南街333號，他因此致電鄧，問他可否代收。鄧表示他身處深水埗並能在15分鐘到達。結果申請人知會鄧收貨地址。申請人力稱自己並沒有前往深水埗地鐵站和鄧會合，而是回家換衣服。

The Applicant went on to say that at around 11 a.m. the same day he received a call from the courier company saying that (the courier) was about to arrive at the address for delivery. Then he kept  in contact with the staff member of the courier company and Tang.  Eventually he learnt that Tang had made contact with the courier. The Applicant insisted that during that time he did not instruct Tang to enter the building or ask Tang to open the other gate of the building to let him in.
申請人續稱同日約上午11時許，收到速遞公司的電話表示差不多到達送貨地址，其後他亦有繼續和速遞公司職員及鄧聯絡，最終知悉鄧和速遞員成功接頭。申請人力稱期間他並沒有指示鄧進入大廈，亦沒有要求鄧開啟大廈另一閘門讓他進入。

The Applicant stated that while he was walking towards No. 333 Tai Nam Street, he was arrested by the Customs officer(s), who found only 3 mobile phones during the search. It was he who took the initiative to reveal the other two mobile phones to the Customs officer(s).
申請人指當他步向大南街333號時，被海關關員拘捕，而海關關員只搜出3部手提電話，另外兩部手提電話是他主動向海關關員透露的。

The Applicant denied that he conspired with other people to “traffic in dangerous drugs”. He did not know the postal parcel involved in the case contained dangerous drugs. He denied that he talked with Tang in early September about receiving the postal parcel(s). The Applicant claimed that he was set up by “Ko Lo”.
申請人否認有和他人串謀“販毒”，而他是不知道涉案郵包內藏有毒品的。他否認在2014年9月初有和鄧談及收取郵包的事宜。申請人指被“高佬”陷害。

The Applicant agreed that he should have had sufficient time to receive the postal parcel himself, but the courier said there was not enough time. So he instructed Tang to receive it and he went home to change his clothes instead. The Applicant explained the reason why he went to Tai Nam Street was that he had promised to take the postal parcel to McDonald’s and hand (it) to “Ko Lo”. He insisted that he did not know the postal parcel contained something illegal.
申請人同意他應有足夠時間自己去收取郵包，但速遞員則說時間不足，故他指示鄧去收取郵包，而自己則返回家換衣服。申請人指自己返回大南街的原因是他應承會將郵包帶往麥當勞交給“高佬”。他力稱不知道郵包內有違法物品。

The Trial Judge’s Direction to Jury
原審法官對陪審團的指引

The trial judge stated expressly to the jury that the evidence against the Applicant came mainly from Tang, and that Tang’s evidence was not entirely safe, so they had to consider Tang’s evidence carefully.  The trial judge also listed the defects in Tang’s evidence.
原審法官向陪審團表明針對申請人的證據主要源自鄧，而鄧的證供有其不穩妥之處，故他們必須小心考慮鄧的證供。原審法官有列出鄧的證供的缺點。

The trial judge did analyze with care the prosecution’s evidence relating to time in order to test the Applicant’s version that he did not have sufficient time to receive the postal parcel and so (he) had to instruct Tang to receive it.
原審法官有小心分析控方就時間上的證供以測試申請人指自己沒有足夠時間親自去接收郵包，故要指使鄧去接收郵包的說法。

The trial judge reminded the jury that if they thought the Applicant’s evidence was true or possibly true, they were obliged to find him not guilty. The trial judge emphasized that even if the jury rejected the Applicant’s entire evidence, they still had to be sure that the Applicant knew the postal parcel contained dangerous drugs when he instructed Tang to receive (it). But the trial judge emphasized that the prosecution only needed to prove that the Applicant knew what the postal parcel contained was a dangerous drug, but it did not need to prove that he knew what kind of dangerous drug it was.
原審法官提醒陪審團如他們認為申請人的證供是真的，或可能是真的，他們都要判申請人無罪。原審法官強調即使陪審團否定申請人的全部證供，他們仍需肯定申請人指使鄧去接收郵包時，他知悉郵包載有毒品。但原審法官強調控方只需證實申請人知悉郵包所載的是毒品，而無需證明他知悉郵包所載的是那一類毒品。

Grounds of Appeal
上訴理由

Mr Osmond Lam, counsel for the Applicant, advanced several grounds of appeal. Mr Lam submitted that since the Applicant was charged with conspiring with other people to “traffic in a dangerous drug”, (ie) cocaine, the prosecution must prove that the Applicant knew what the postal parcel contained was cocaine and not other dangerous drugs. However, in his direction to the jury, the trial judge wrongly directed the jury by saying that they only needed to consider whether the Applicant knew the postal parcel contained a dangerous drug and that the prosecution did not need to prove that the Applicant knew what the postal parcel contained was cocaine.
代表申請人的大律師林國輝提出數點上訴理由。林大律師認為控罪是指申請人和他人串謀“販毒”可卡因這種毒品，因此，控方必須證明申請人知悉郵包所載的是可卡因，而非其他毒品。但原審法官卻錯誤地在引導陪審團時，要他們只需考慮申請人是否知悉郵包載有毒品，而控方無需證明申請人知悉郵包所載的是可卡因。

Mr Lam submitted that the prosecution’s evidence might show that the Applicant conspired with other people to “traffic in” other dangerous drugs or other contraband, but the trial judge erred in omitting to point out that possibility to the jury.
林大律師認為控方的證據可能顯示申請人是和他人 串謀“販運”其他毒品，或其他違禁品，但原審法官卻錯誤地沒有向陪審團指出該可能性。

Mr Lam pointed out that the trial judge erred in not expressing clearly to the jury that Tang’s guilty plea could not be regarded as evidence to convict the Applicant. Mr. Lam also emphasized the inherent improbabilities of Tang’s evidence, but the trial judge did not point out those inherent improbabilities to the jury.  Accordingly, the guilty verdict against the Applicant was unsafe.
林大律師指原審法官錯誤地沒有向陪審團表明鄧的認罪答辯不能作為申請人的定罪證據。林大律師亦強調鄧的證據有其固有不可能性，但原審法官並沒有向陪審團指出該些固有不可能性，因此，針對申請人的定罪裁決是不穩妥的。

Mr Lam submitted that Tang’s evidence had its own inherent improbabilities for the following reasons:
林大律師指鄧的證供有其固有不可能性，原因包括：

(1)	The Applicant did not have to tell Tang what the postal parcel contained;
申請人無必要告知鄧郵包所載的是甚麼東西；

(2)	Telling Tang that the postal parcel contained a dangerous drug would increase the likelihood of the Applicant being arrested, thus putting himself in jeopardy;
申請人告知鄧郵包所載的是毒品會增加他被捕的機會，令自己處於險地；

(3)	As the Applicant and Tang were not close and long-standing friends, it was impossible for the Applicant to believe that in case things went wrong, Tang would not testify against him.
申請人和鄧並非深交摯友，申請人不可能相信一旦東窗事發，鄧不會作供指證他。

In the light of the above factors, Mr Lam submitted that the conviction of the Applicant was unsafe.
基於上述因素，林大律師認為針對申請人的定罪是不穩妥的。

Discussion
討論

Mr Lam argued that the prosecution must prove that the Applicant knew the postal parcel contained cocaine; it is not sufficient to merely prove that he knew the postal contained a dangerous drug.  He cited R v Siracusa (1990) 90 Cr App R 340 to support his position.
林大律師指控方必需證明申請人知悉郵包內藏可卡因，而只證明他知悉郵包內藏毒品是不足夠的。他援引R v Siracusa (1990) 90 Cr App R 340案支持他的立場。

In Siracusa, the prosecution accused the defendant of knowingly particpating in a fraudulent evasion or attempt at evasion of a prohibition or restriction for the time being in force with respect to goods under or by virtue of section 3(1) of the Misuse of Drugs Act 1971 and section 170(2)(b) of the Customs and Excise Management Act 1979.
在Siracusa案，控方是根據《Misuse of Drugs Act 1971》第3(1)條及《Customs and Excise Management Act 1979》第170(2)(b)條指控被告人蓄意(knowingly)參與以欺詐方式來規避或企圖規避某些法例被禁止或受限制的物品。

Under the Customs and Excise Management Act 1979, cannabis was specified as a “Class B drug” whereas heroin was classified as a “Class A drug”, and the maximum penalties for evasion with respect to cannabis and heroin were different.
《Customs and Excise Management Act 1979》將大麻定為“B類毒品”，而海洛英則被定為“A類毒品”，亦將規避大麻及海洛英的刑罰訂定不同的最高刑罰。

In Siracusa, the first charge was concerned with the conspiracy to evade the (prohibition/restriction) with respect to heroin and the second charge with the conspiracy to evade the (prohibition/ restriction) with respect to cannabis. But the trial judge did not state clearly in his direction to the jury that when they considered the first charge, they had to be sure that the offence which the defendants participated in involved heroin.
Siracusa案的第一項控罪涉及串謀規避海洛英，而第二項控罪則涉及串謀規避大麻。但主審法官在指引陪審團時沒有向他們指明他們在考慮第一項控罪時要確定被告人參與的犯罪行為涉及海洛英。

One of the grounds of appeal was that the trial judge did not express clearly in his direction to the jury that the prosecution was obliged to prove that the agreement to the conspiracy was the importation of heroin.
涉案的上訴理由之一是主審法官沒有向陪審團表明控方要證明有關串謀協議是協議入口海洛英。

What Mr Lam relied upon is the following remark of O’Connor LJ at page 350 of the judgment in Siracusa:
林大律師依賴的是O‘Connor LJ法官在Siracusa案的判案書第350頁的以下評論：

“The mens rea sufficient to support the commission of a substantive offence will not necessarily be sufficient to support a charge of conspiracy to commit that offence.  An intent to cause grievous bodily harm is sufficient to support the charge of murder, but is not sufficient to support a charge of conspiracy to murder or of attempt to murder.
“構成干犯某實質控罪的犯意（mens rea）不一定足以支持串謀干犯該控罪的犯意。有意圖令人身體受嚴重傷害是足夠支持謀殺控罪，但不足夠支持串謀謀殺或企圖謀殺控罪。

We have come to the conclusion that if the prosecution charge a conspiracy to contravene section 170(2) of the Customs and Excise Management Act by the importation of heroin, then the prosecution must prove that the agreed course of conduct was the importation of heroin.  This is because the essence of the crime of conspiracy is the agreement and in simple terms, you do not prove an agreement to import heroin by proving an agreement to import cannabis.”
我們的結論是如控方指違反Customs and Excise Management Act第170(2)條的行為是入口海洛英，控方必須證明協議的行為是入口海洛英，原因是罪行的要素是協議，而簡而言之，只證明協議入口大麻不能證明協議入口海洛英。”（非官方翻譯）

First of all, this Court points out that the two charges in Siracusa were that (the defendants) knowingly imported two different substances listed in the Customs and Excise Management Act 1979, namely, heroin (a Class A drug) and cannabis (a Class B drug).
本庭先指出Siracusa案涉及的兩項控罪分別是蓄意入口《Customs and Excise Management Act 1979》列明的兩種不同物品，一是A類的海洛英，一是B類的大麻。

The Customs and Excise Management Act 1979 classified cannabis and heroin and also dealt with the penalties for the offences of importation of cannabis and importation of heroin separately.
《Customs and Excise Management Act 1979》將大麻和海洛英分類，亦將入口大麻和入口海洛英罪行的刑罰分開處理。

Under that Act, the importation of cannabis and the importation of heroin were two different offences. This Court cannot disregard that the offences referred to in that Act must be committed knowingly. The penalty for conspiracy to import cannabis is lighter than that for conspiracy to import heroin. Accordingly, if the defendant was charged with conspiracy to import heroin and he thought what was to be imported is cannabis, the charge against him would not stand. However, the situation would be totally different if he was charged with conspiracy to import cannabis, but he thought what was to be imported was heroin.  It was in the above context that O’Connor LJ said in obiter dicta that the proof of an agreement to import cannabis was not sufficient proof of an agreement to import heroin.
根據該條例入口大麻和入口海洛英根本是兩項不同的控罪。本庭不能忽視該條例所指的罪行必須是蓄意（knowingly）干犯。串謀入口大麻罪行的判罰較串謀入口海洛英罪行為輕。因此，如被告人被控的是串謀入口海洛英，而他以為入口的是大麻，針對他的控罪便不成立；但如他被控串謀入口大麻，但他以為入口的是海洛英，情況便完全不同。O’Connor LJ法官是在上述情況下提出一些附帶意見，指證明協議入口大麻不足以證明協議入口海洛英。

The decision in Siracusa was canvassed by the Court of Criminal Appeals of the UK in R v Patel and others（unreported, 7th August 1991, [1991] Lexis Citation 1588）. Woolf LJ pointed out at page 10 of the judgment：
Siracusa案的判決在R v Patel and others案（unreported, 7th August 1991, [1991] Lexis Citation 1588）被英國刑事上訴法庭審議。Woolf LJ在判案書第10頁指出：

“… by referring to a single drug in the Particulars of Offence the prosecution are identifying which Class of drug is involved.  If heroin is specified, a Class A or hard drug; if Cannabis is specified, a Class B or soft drug.  The naming of the drug is a material allegation because it makes clear the gravity of the offence which is the objective of the conspiracy.”
“…控方在控罪詳情提出單一種毒品，是確認涉案毒品是那一類毒品。如確認的毒品是海洛英，那是一種A類或硬性毒品；如確認的毒品是大麻，那是一種B類或軟性毒品。將毒品定性是一項有關的陳述，原因是該做法將清楚描繪控罪的嚴重性，而該嚴重性亦是串謀的目的。”（非官方翻譯）

Woolf LJ also gave a brief statement of the legal principle involved as follows:
Woolf LJ亦將有關的法律原則簡述如下：

… 如陪審團認為被告人同意加入串謀時，他錯誤地相信串謀所涉及的毒品和罪行詳情所指的不同，而該些不同的毒品（即被告人相信他參與串謀所涉及的毒品）屬於某類最高判刑較罪行詳情所指毒品的最高判刑為輕。因此，如被告人加入串謀時相信串謀是涉及大麻（B類），而他被控的串謀罪是涉及海洛英（A類），被告人會是無罪；但相反的情況，他會是有罪。原因是如他錯誤地相信他參與的串謀涉及較嚴重的罪，他的錯誤（誤認涉案毒品是海洛英，而實情只是大麻）並非控罪的必需特徵。	“(i)	… if the jury consider that, although he agreed to join the conspiracy, he may have mistakenly believed that the conspiracy related to a different drug from that named in the Particulars of Offence and that different drug is of a Class, the maximum punishment in relation to which (for the substantive offence) is less than that for drugs of the Class specified in the Particulars of Offence.  Thus is (sic) a person enters into a conspiracy believing it concerns cannabis (Class B) he will not be guilty of an offence charging him with being a party to a conspiracy concerning heroin (Class A).  In the reverse situation he would however be guilty, since if he mistakenly thought that he was joining a conspiracy to commit a graver offence his mistake would not be as to a material feature of the offence - in other words he believed the drug involved was heroin when in fact it was cannabis.
“(i)

如被告人加入有關串謀時錯誤地相信串謀涉及的毒品，雖然和控罪詳情所指的不同，但是屬同一類別，則被告人會是有罪。	(ii)	a defendant will be guilty if the offence if he joined the conspiracy alleged in the mistake belief it involved a drug which, while different from, belongs to the same Class as the drug named in the Particular of Offence.
(ii)

如被告人加入串謀時知悉串謀涉及違禁毒品，但不知悉是某一種毒品時，他就是串謀的一份子，不論串謀和那一種毒品有關，被告人亦會是有罪。”（非官方翻譯）	(iii)	a defendant will be guilty if he joins the conspiracy knowing that prohibited drugs are involved but without knowing what drugs are involved.  In such a situation he would in fact have agreed to be a party to the conspiracy irrespective of what drugs are involved.”
(iii)

The decision in Siracusa was based entirely on the wording and interpretation of the relevant Acts of the United Kingdom. The legal principle laid down in that case does not apply to the present case.
Siracusa案的裁決完全是建基在英國有關法例的用詞及詮譯。該案定下的法律原則不適用於本案。

In the present case, the Applicant was charged with conspiracy to traffic in a dangerous drug.  Although it was stated in the Particulars of Offence that the Applicant conspired (with others) to traffic in cocaine, the nature of the dangerous drug was not the material averment of the offence or the statement in question.
在本案，申請人被控的控罪是串謀販運毒品。雖然罪行詳情列明申請人串謀販運的毒品是可卡因，但毒品的性質並非是控罪的要素或有關的陳述。

The Dangerous Drugs Ordinance (Cap 134) does not deal with trafficking in cocaine and trafficking in other drugs separately. Nor does the Dangerous Drugs Ordinance specify “knowingly” as a material averment of the offence as in the case of that Act.  Where a defendant participated in a conspiracy to “traffic in a dangerous drug”, as long as the offence involves “dangerous drugs” referred to in the Dangerous Drugs Ordinance, he is guilty regardless of whether he knows the exact kind of “dangerous drug” involved.  To convict a defendant of “trafficking in a dangerous drug”, the prosecution only needs to prove that the defendant knows the thing involved in the trafficking is a dangerous drug, without having to prove that he knows exactly what kind of dangerous drug it is (See R v Tam Chun Fai [1994] 2 HKC 397 and HKSAR v Chui Chi Wai [1999] 3 HKLRD 841).
香港法例第134章《危險藥物條例》沒有將販運可卡因或販運其他種類毒品的判刑分開處理。《危險藥物條例》更沒有如該條例一樣將蓄意（knowingly）列為控罪的要素。一名被告人參與串謀“販毒”，只要控罪涉及《危險藥物條例》所指的“毒品”，則不論被告人是否知悉有關“毒品”的確實種類，他仍是有罪。要裁定一名被告人“販毒”罪罪名成立，控方只需證明被告人知悉他販運的東西是危險藥物，而無需證明被告人知悉該些危險藥物是那一種的危險藥物（見R v Tam Chun Fai [1994] 2 HKC 397、HKSAR v Chui Chi Wai [1999] 3 HKLRD 841等案）。

Section 159A(1)(a) of the Crimes Ordinance (Cap 200) stipulates：
香港法例第200章《刑事罪行條例》第159A(1)(a)條訂明：

除本部條文另有規定外，如任何人與任何其他人達成作出某項行為的協議，而該項協議如按照他們的意圖得以落實，即出現以下的情況 ——	“(1)	Subject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—
“(1)

該項行為必會構成或涉及協議的一方或多於一方犯一項或多於一項罪行。”	(a)	will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement;”
(a)

In short, if the act which the conspirators agree to carry out materialises, that act will constitute a particular offence, and the offence of conspiracy will be established. Where the offence is “trafficking in a dangerous drug”, as mentioned above, as long as the offender knows the thing involved in the trafficking is a dangerous drug, that is sufficient to establish guilt. Whether or not he knows the exact kind of dangerous drug involved is not a material averment. Accordingly, under section 159A(1)(a) of the Crimes Ordinance, for the offence of conspiracy to “traffic in a dangerous drug”, whether or not the defendant knows the exact kind of dangerous drug involved is not a material averment, nor is the prosecution required to prove that the defendant knows the dangerous drug involved is the specific one stated in the indictment.
簡言之，若串謀者同意作出的行為落實的話，該行為必會構成某項罪行，串謀罪便會成立。若該項罪行是“販毒”，如上文所說，只要犯案者知道他所販運的東西是危險藥物，便足以罪成，他知不知道涉案的危險藥物是某一類危險藥物並非控罪元素（material averment）。因此，根據《刑事罪行條例》第159A(1)(a)條的規定，就串謀“販毒”罪，被告是否知悉涉案的是那一類危險藥物不是控罪元素，控方亦無須證明被告知道涉案的正是公告書上所列明的特定一類危險藥物。

Also, this Court does not see any logical basis for adopting a different approach in cases of conspiracy to “traffic in dangerous drugs” from that in cases of “trafficking in dangerous drugs”.  The contention that in cases of conspiracy to “traffic in dangerous drugs” it is not sufficient for the prosecution only to prove that the defendant knows the thing involved in the trafficking is a dangerous drug, but the prosecution must also prove that the defendant knows the exact kind of dangerous drug involved is neither practicable nor convincing.
再者，本庭亦看不到有任何邏輯基礎在處理串謀“販毒”案時，要採納和“販毒”罪不同的方法。強稱在串謀“販毒”案件，控方只能證明被告人知悉其販運的東西是“毒品”，並不足夠，而必須證明被告人知悉其販運的是某一類特定毒品是不設實際，亦是不具說服力的。

For the above reasons, this Court is of the view that the question at issue in a case of conspiracy to “traffic in a dangerous drug” is whether the defendant enters into an agreement with others to unlawfully “traffic in a dangerous drug”. It is not a defence to contend that the defendant does not know the exact kind of dangerous drug involved. As long as the defendant knows the thing involved is a dangerous drug specified in the Dangerous Drugs Ordinance, he has committed the offence of conspiracy to “traffic in a dangerous drug”.  Accordingly, this Court is of the view that the direction the trial judge gave to the jury was correct.
基於上述原因，本庭認為在串謀“販毒”案件，議題是被告人是否有和他人協議非法“販運”毒品，被告人不知悉毒品的確實種類並非答辯理由，只要他知道涉案物品是《危險藥物條例》所指的毒品，他就干犯了串謀“販毒”罪行。本庭認為原審法官給予陪審團的指引是正確的。

Furthermore, the Applicant’s defence was that he did not know in the first place what the postal parcel contained was a dangerous drug, but this was obviously rejected by the jury. According to Tang’s evidence, the Applicant made it clear to him that the dangerous drug involved was “coke” and that receiving the postal parcel involved would be rewarded with $100,000. There was nothing in the present case to show that the Applicant conspired with other people to “traffic in” other kinds of dangerous drug. The Applicant’s version was that he did not know in the first place that the postal parcel contained any dangerous drug. And “Ko Lo” said to him that the postal parcel was not a gun, a stove or a dangerous drug. The main point that Mr. Lam advanced does not apply to the present case at all. Even if the Applicant conspired with other people to “traffic in” other kinds of dangerous drug, this was not a valid defence either.
再者，申請人的答辯理由是他根本不知悉涉案郵包所載的是毒品，而陪審團亦明顯否定了他的說法。根據鄧的證供，申請人明確向他表示涉案的毒品是“可樂”，而收取涉案郵包更會有10萬元報酬。案件中沒有證據顯示申請人是和他人串謀“販運”其他種類毒品。申請人的說法是他根本不知道郵包藏有任何毒品，而“高佬”向他說郵包不是槍，不是爐，亦非毒品。林大律師的主要論點在本案根本不適用。即使申請人是和他人串謀“販運”其他種類毒品，這亦非有效的答辯理由。

There was no evidence in the present case to show that the Applicant conspired with other people to “traffic in” other contraband, which were not dangerous drugs.  There was no basis for the trial judge to point out to the jury that the Applicant might conspire with other people to import other contraband.  To direct the jury to consider the possibility of the Applicant conspiring with other people to “traffic in” other contraband would only confuse and not assist the jury in deciding the matters in dispute in the case.
案件亦沒有證據顯示申請人是和他人串謀“販運”其他違禁品，而非毒品。原審法官沒有基礎向陪審團指出申請人可能是和他人串謀入口其他違禁品。引導陪審團考慮申請人可能是串謀他人“販運”其他違禁品只會混淆陪審團，而非協助他們就案件的爭議作出裁決。

Mr Lam contended that Tang’s evidence had its own inherent improbabilities. His position was that Tang’s evidence was not credible, but the trial judge did not draw the attention of the jury to the unsafe aspects of Tang’s evidence.
林大律師力稱鄧的證供有其固有不可能性，他的立場是鄧的證供不可信，但原審法官卻沒有提醒陪審團鄧的證供的不穩妥之處。

According to Tang’s evidence, he trusted the Applicant.  And the Applicant suggested to Tang that he only needed to feign ignorance if he was arrested.
根據鄧的證言，他信賴申請人，而申請人有向他表示如他被拘捕，他只需要扮甚麼都不知道。

The Applicant asked Tang to receive the postal parcel on his behalf and indicated that he would give Tang $50,000 as a reward.  The Applicant must have thought that giving Tang a big reward would make Tang act according to his instructions.  Anyway, he had to tell Tang that the postal parcel contained “coke”, otherwise it would be impossible for him to give (him) a reward of $50,000 to induce Tang to act on his instructions.  The Applicant must also have calculated the risk he would face in getting Tang to act in accordance with his instructions, such risk was also inevitable.
申請人要鄧代他收取郵包，並表示會給予鄧5萬元的酬勞。申請人必然認為給予鄧重酬，鄧會按照他的指示行事，而他亦有需要告知鄧郵包藏有“可樂”，否則他不可能以5萬元報酬誘使鄧按照他的指示行事。申請人亦必然是計算過他指示鄧行事會面對的風險，而該些風險亦是無可避免的。

This Court does not agree with Mr Lam that Tang’s evidence has its own inherent improbabilities which showed that his evidence could not be true.
本庭不同意林大律師所指鄧的證供有其固有不可能性，顯示他的證供不可能屬實。

Whether Tang lied in order to falsely accuse the Applicant was a factual issue which should be left to the jury to decide.  The jury was aware of the position of the Defence. If Tang’s evidence against the Applicant had the inherent improbabilities as claimed by the Defence, the jury must have rejected his evidence. That the jury found the Applicant guilty shows that they rejected the Defence’s version and that they considered Tang an honest and reliable witness. There is no basis for this Court to negate the jury’s decision on a matter of fact.
鄧是否說謊誣告申請人是事實問題，應由陪審團作出裁決。陪審團知悉辯方的立場，如鄧針對申請人的證供有辯方聲稱的固有不可能性，陪審團必然會否定他的證供。陪審團裁定申請人罪名成立顯示他們是否定了辯方的說法，並認為鄧是一名誠實可靠的證人。本庭沒有基礎否定陪審團就事實作出的裁決。

Tang had already admitted an offence of trafficking in a dangerous drug in one of the postal parcels before he testified against the Applicant. The trial judge stated clearly to the jury in his direction that Tang had already admitted the said offence and was awaiting sentence, and that one of the purposes of his testifying against the Applicant was to obtain a further reduction of his sentence.  The trial judge also pointed out to the jury that the Secretary for Justice had granted Tang immunity that if Tang told the truth in giving evidence, the Prosecution would not charge him with the other offences relating to the present case.
鄧作供指證申請人前已承認了一項販運和案件的其中一個郵包有關的毒品罪。原審法官引導陪審團時明確向他們表明鄧已承認了該項控罪及正在等候判刑，而他作供指證申請人的目的之一是為了取得再進一步的減刑。原審法官亦向陪審團指出律政司有給予鄧免予起訴書，內容是如鄧作供的內容真確，則控方不會起訴他與本案有關的其他罪行。

In the circumstances mentioned above, whether the trial judge was obliged to inform the jury that Tang had already admitted an offence of “trafficking in a dangerous drug” would presumably not affect their verdict as to whether or not the Applicant was guilty. And whether the trial judge was obliged to remind the jury that the Prosecution was required to prove its accusation against the Applicant so that they were sure that the Applicant had committed the offence with which he was charged would not have been affected even if Tang had not admitted the offence of “trafficking in a dangerous drug”.
在上述情況下，原審法官是否必須告知陪審團鄧已承認一項“販毒”控罪一事，不應影響他們對申請人是否有罪所作出的裁決。原審法官是否必須提醒陪審團控方必須證明對申請人作出的指控、令他們肯定申請人干犯了他被控的罪行，情況就如鄧沒有承認過“販毒”控罪一樣。

Mr Lam cited HKSAR v Lo Wai Ming [2007] 3 HKLRD 191 and argued that the trial judge was obliged to remind the jury that Tang had already admitted an offence and that this had nothing to do with whether or not the Applicant was guilty.  First of all, this Court should point out that the defendant in Lo Wai Ming’s case was alleged to have received a bag of dangerous drug involved in the case from a taxi passenger [L].  Having been arrested and cautioned, the defendant indicated that the bag of dangerous drug was not his, but was handed to him by his boss [L]; but he knew the bag of dangerous drug was “ice”.  In his evidence for the defence, the defendant denied that he had made the above confession and emphasized that he did not admit having knowledge or possession of the dangerous drug involved in the case during the video-recorded interview, nor did anyone ask him about the confession which the prosecution alleged he had made. But the video-recorded interview referred to above showed that the defendant admitted that at the place where he was arrested, the police officer(s) seized a plastic bag on L’s person; he also admitted that he had $32,000 in cash on him. The defendant said in his evidence that it was he who arranged to meet L at the scene of the case, which was different from what he said during the video-recorded interview, namely, he just happened to see L there coincidentally. In the cross-examination of the defendant, the prosecution pointed out that the defendant did not call L to give evidence, because he knew L had already admitted that the two of them “trafficked in the dangerous drug” together.
林大律師援引HKSAR v Lo Wai Ming [2007] 3 HKLRD 191案，並指原審法官必須提醒陪審團鄧已認罪一事和申請人是否有罪無關。本庭應先指出，Lo Wai Ming案的被告人被指從一名的士的乘客（L）接收涉案的一袋毒品。被告人被捕後及在警誡下表示該包毒品並非是他的，而是其老闆（L）交給他的，但他知悉該包毒品是“冰毒”。作供自辯時，被告人否認有作出過上述招認，並強調他和警員進行錄影會面時沒有承認知悉或管有過涉案毒品，亦沒有人問過他控方指他曾作出過的招認。但根據上述錄影會面的內容，被告人承認在他被捕之處，警員從L身上撿獲一膠袋，亦承認其身上有32,000元現金。被告人作供時表示是他安排和L在案發地點會面，和他在錄影會面時說他是巧合地遇到L不同。控方盤問被告人時指被告人沒有傳召L作供，原因是他知悉L已承認了有和他一起“販毒”。

The Court of Appeal pointed out that in the above circumstances, the jury might have been influenced by the overwhelming allegation that L had admitted that he and the defendant “trafficked in the dangerous drug” together. However, the trial judge did not direct the jury to ignore L’s admission of the offence pointed out by the prosecution or to ignore the statement he made to the police. This constituted an irregularity in the legal proceedings, mainly because the prosecution informed the jury of an admission made by an accomplice without calling that accomplice to testify in court, thus depriving the defendant of the chance to cross-examine him in order to test the allegation that they committed the offence together.
上訴法庭指出在上述情況下，陪審團可能會受L承認有和被告人一起“販毒”這強而有力的指稱所影響，但主審法官卻沒有指示陪審團不要理會控方指出L已認罪一事或他向警方所作的供詞，構成法律程序失當。法律程序失當的主要原因明顯是控方將一名同犯已經認罪的事實告知陪審團，但卻不傳召該名同犯出庭作供，是剝奪被告人盤問該名同犯的機會以測試他們是否有同共犯案這指控。

In the present case, Tang did testify against the Applicant in court.  The Defence had ample opportunities to question Tang as to whether he had conspired with the Applicant to commit the offence, so as to assist the jury in making a finding on Tang’s credibility and reliability.
在本案，鄧有出庭作供指證申請人。辯方有充份機會就鄧是否有串謀申請人犯案向他查詢以協助陪審團就他的可信性及可靠性作出裁決。

The Applicant admitted that he did instruct Tang to receive the postal parcel on the day in question, but he did not know that it contained a dangerous drug.  He was set up by “Ko Lo”.  His version was different from Tang’s. The main issue the jury had to decide was whether Tang’s evidence against the Applicant was true. In arriving at the said verdict, the jury must have considered the other factors, including the fact that the Applicant had many phones on him when he was arrested; the records of his telephone communications with the Customs officer before the present case occurred; the fact that the phone(s) had photos of tracking the delivery of the three postal parcels involved in the case; among the items seized from the Applicant was a piece/pieces of paper showing the air waybill number and the names of the recipients of the goods; given that the Applicant was in the vicinity  when he was arrested, he had time to personally receive the postal parcel involved, and he could arrange with the Customs officer disguised as a courier the time and place of the delivery and so on.
申請人承認他在案發當天有指示鄧去收取郵包，但他對郵包載有毒品不知情。他是被“高佬”陷害的。他的說法和鄧的說法不同，而陪審團要裁決的主要議題是鄧針對申請人的證供是否真確。在作出上述裁決時，陪審團當然會考慮其他因素，包括申請人被捕時身上有多部電話；在案發前和海關關員通訊的電話記錄；及電話內有追蹤涉案三個郵包的運送行踪的照片；申請人被扣押的物品中有顯示涉案郵包的航空單編號及收貨人名字的紙條；申請人被捕時是在案發現場附近，而他是有時間可以親自收取涉案郵包，亦可以和假扮速遞員的海關關員安排接收郵包的時間和地點等等因素。

The trial judge did inform the jury in his directions that Tang had admitted an offence of trafficking in a dangerous drug. But in the present case, it was wholly impossible for the jury to have drawn any inference or reached a verdict unfavourable to the Applicant on the basis that Tang had admitted an offence.
原審法官在引導陪審團時有告知他們，鄧已承認了販毒罪，但在本案，陪審團根本不可能因為鄧認罪這因素而對申請人作出任何不利的推論或裁決。

The trial judge warned the jury repeatedly that they had to consider Tang’s evidence with caution because he was a person who would lie according to the situation and also was extremely selfish. The trial judge also emphasized to the jury that if the Applicant’s version was true or possibly true, they had to find the Applicant not guilty; and that even if they did not believe the Applicant, they still had to consider whether the evidence of the Prosecution was sufficient to cause them to be sure that the Applicant knew what the postal parcel contained was a dangerous drug.
原審法官有多番提醒陪審團要小心考慮鄧的證供，原因是他是一名會因應情況而說謊的人，亦是一名極為自私的人。原審法官亦有對陪審團強調如申請人的說法是真的或可能是真的，他們要判申請人無罪，而即使他們不相信申請人，他們仍需考慮控方的證據是否足以令他們肯定申請人是知悉郵包所載的是毒品。

We consider that so far as the background of the present case is concerned, the trial judge needed not tell the jury that Tang had admitted an offence of “trafficking in a dangerous drug” and that this had nothing to do with whether or not the Applicant is guilty.  (Even if) the trial judge did not give the above direction, it would not have constituted an irregularity in legal proceedings nor affected the safety of the conviction.
本庭認為以本案的背景而言，原審法官沒有需要告知陪審團鄧有承認“販毒”罪一事，和申請人是否有罪無關。原審法官沒有作出上述指示亦不構成法律程序不當及影響定罪的穩定性。

We would like to reiterate the following comment the Court of Appeal made in HKSAR v Chan Kam Chiu (unreported CACC 227/2006) on the same issue:
本庭會覆述上訴法庭在HKSAR v Chan Kam Chiu (unreported CACC 227/2006)就同一議題作出以下的評論：

污點證人（楊）原被控和第一及第二申請人被控的同一“販毒”罪行。他承認控罪，並同意替控方作供。陪審團知悉楊已認罪及他會在作供後才被判刑。陪審團亦已適當地被警示要小心處理其證供，原因是他有理由去虛構或誇大其證供。	“23.	The accomplice witness, Yeung, was originally charged with the same trafficking offence as the first and second applicants.  He pleaded guilty to that offence, agreeing to testify for the prosecution.  The fact that he had pleaded guilty and that he would only be sentenced after he had testified was known to the jury.  The jury were correctly warned to approach his testimony with caution on the basis that he therefore had reason to falsify or exaggerate his testimony.
“23．

但有替第二申請人作出的陳述指主審法官應該警誡陪審團不要因為楊承認有和第一和第二申請人一起干犯“販毒”而認定他們亦是有罪。	24.	On behalf of the second applicant, however, it was submitted that the judge should have warned the jury against the danger of concluding that the first and second applicants must themselves be guilty because Yeung had pleaded guilty to committing the offence of trafficking with them.
24.

本庭不同意有關陳述。除了某些最基本的原則，例如舉證責任，向陪審團作出的指引必須是為了協助陪審團要就案件的裁決而制訂。在本案，聲稱主審法官應作出的指引是多餘的，甚至會是具誤導性的。”（非官方翻譯）	25.	We do not agree.  Directions to a jury – other than the most fundamental, for example, the burden of proof – must be tailored to assist the jury to determine the case before them.  In the present case, such a direction would have been superfluous, even confusing.”
25.

We are of the view that the observation of the Court of Appeal in Chan Kam Chiu is entirely applicable to the present case.
本庭認為上訴法庭在Chan Kam Chiu案所作的觀察完全適用於本案。

Having carefully considered the grounds of appeal advanced by Mr. Lam, we are of the view that none of them has merit.
本庭已小心考慮林大律師提出的上訴理由。本庭認為該些上訴理由無一成立。

The guilty verdict against the Applicant was safe.  Accordingly, we dismiss the Applicant’s application for leave to appeal against conviction and uphold the original decision.
針對申請人的有罪裁決是穩妥的。因此，本庭駁回申請人針對定罪提出的上訴許可申請，並維持原判。

由律政司高級助理刑事檢控專員黎嘉誼代表。	Osmond Lam and Ernest Yuen, instructed by Or & Lau, Solicitors, for the Applicant
答辯人：

由柯廣耀、劉慧兒律師事務所轉聘大律師林國輝及大律師袁焌碩代表。	Ned Lai, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent
申請人：