Hon D Pang JA (giving the Reasons for Judgment of the Court):
上訴法庭法官彭偉昌頒發上訴法庭判案理由書：

The applicant was convicted after trial of one count of “trafficking in a dangerous drug” involving 33.5 grammes of a crystalline solid containing 31.31 grammes of the dangerous drug “ice”. He was sentenced to 8 years and 5 months’ imprisonment by the trial judge (Joseph Yau J). The applicant sought leave to appeal against conviction.
申請人經審訊後被裁定一項‘販運危險藥物’罪成立，控罪涉及內含31.31克冰毒的33.5克晶狀固體，原審法官（邱智立法官）把他判囚8年5個月。申請人不服，就定罪提出上訴許可申請。

The prosecution evidence
控方證據

The prosecution only called three witnesses, namely Police Constable 12406 Chow Ka Wing (transliteration) (“PW1”), Woman Senior Inspector Cheung Ka Wai, Gloria (“PW2”) and Psychiatrist Mak Kai Lok, Gregory (“PW3”).
控方只傳召了三名證人。他們分別為警員12406周家榮（‘PW1’）、女高級督察張嘉慧（‘PW2’）和精神科醫生麥棨諾（‘PW3’）。

In respect of the course of arrest of the applicant, PW1 gave evidence as follows:
PW1就拘捕申請人的過程作供如下：

PW1 ... at 3:58 a.m. on 3 March 2016, (PW1) who was in plain clothes, together with several colleagues in uniform, patrolled Soy Street in Mong Kok. At that time, they were on the stretch of Soy Street between Portland Street and Shanghai Street. PW1 saw … the accused. At that time, the accused was talking on his mobile phone. He suddenly turned round and looked towards Shanghai Street. Then, all of a sudden, he went inside the building at 15 Soy Street. Feeling suspicious, PW1 followed him inside. In the lobby of the building, he produced his warrant card and revealed his police identity to the accused who was then still talking on his phone. And other police officers also went into the lobby of the building for reinforcement. As it was too cramped in the lobby, PW1 took the accused to the outside of the building where the accused was body searched by PC7901.
控方第一證人 ...... 喺2016年3月3日凌晨3點58分，自己著便裝，同埋幾個軍裝嘅同事一齊巡邏，去到旺角豉油街。佢哋當時喺豉油街，係介乎砵蘭街同埋上海街嗰一段嘅街道。控方第一證人見到 ...... 被告。當時被告人係講緊手提電話，佢突然轉身望向上海街，之後突然間就入咗去豉油街15號嘅大廈裡面。控方第一證人覺得可疑，於是就跟住入去。喺大廈大堂裡面，佢向被告人出示委任證同埋表明警察身分。當時被告人仍然講緊電話，而其他嘅警務人員亦都入到去大廈大堂度支援。因為大廈大堂太過窄，於是控方第一證人就將被告人帶出大廈出面，由警員7901向被告人進行搜身。

PW1 witnessed the body search. He saw PC7901 found two transparent resealable plastic bags in the right front pocket of the trousers the accused was wearing. … which were the two plastic bags containing the “ice” in question …
控方第一證人見證住搜身，佢見到警員7901喺被告人所著嘅長褲嘅右前褲袋搵到兩個透明可再封口膠袋 ...... 就係呢兩個膠袋係裝住呢件案件裡面所指嘅『冰』......

PW1 arrested and cautioned the accused for the offence of (simple) possession (i.e. possession of a dangerous drug). … Under caution, the accused said, “Those are dangerous drugs “ice”, which are for my own consumption.” After that, the accused was handcuffed by PW1 who eventually, together with other police officers, took the accused to the police station.
控方第一證人以藏毒（即係管有危險藥物）嘅罪名拘捕同埋警誡被告人 ...... 警誡之下，被告人話：『嗰啲係毒品「冰」，我自己食嘅。』之後，控方第一證人就用手扣鎖上被告人。最後同埋其他警務人員一齊就將被告人帶番去警署。

After taking the accused to the duty officer of the police station for reporting and handling the relevant exhibits, PW1 conducted a body search of the accused and found on his person $1,500-odd in cash and two mobile phones. …”
喺帶同被告人向警署值日官報告同埋處理咗有關嘅證物之後，控方第一證人就向被告人進行搜身，喺被告人嘅身上面搵到1,500幾鈫嘅現金同埋兩個手提電話 ......」

PW2 was attached to the Narcotics Bureau of the Police Force. Based on the information and her experience accumulated on the job, she gave the court an estimate of the street value of the dangerous drug in question at the time of the offence, i.e. “the lowest price was $278 per gramme and the highest price was $375 (per gramme), and thus the average price was $313 per gramme.”. She added that only when a client made a purchase of at least 200 to 300 grammes of the dangerous drug “ice” would the price be “lower”. She said that the “chance” of purchasing approximately 33 grammes of the dangerous drug “ice” for $2,400 (i.e. the amount the applicant claimed that he had paid) was “really slim”.
PW2隸屬警隊毒品調查科。她根據在工作中所累積的經驗和情報向法庭估算了涉案毒品在案發時的零售價值，即「每1克最低價係278元，最高價係375元，所以平均價係313元1克」。她補充，當事人要購買最少200至300克的冰毒，價格「先會平啲」。她說，要以2,400元購得約33克冰毒（即申請人聲稱自己所付出的價錢），「機會好微」。

PW3 gave evidence on the average consumption rate of the dangerous drug “ice” only. In gist, PW3 said that studies in both Mainland China and Taiwan showed that the daily consumption rate of “ice” “ranged from 0.1 to 0.6 gramme. Thus, the median (consumption rate) was 0.3 gramme”. Therefore, “in accordance with the calculation based on this median, the 33.53 grammes of “ice” in question would last for 112 days”. PW3 further stressed that “by taking 1 gramme of “ice”, (the abuser) would not be able to go to work”, and that in the event of finishing off 30 grammes of ice in 30 days with a daily dose of 1 gramme (i.e. the applicant’s consumption rate as he claimed), “the abuser would have been admitted to hospital on the third day”.
PW3的證供只關乎冰毒的平均吸食量。扼要而言，PW3指大陸和台灣兩地的研究顯示，冰的每日吸食量「係由0.1至0.6克，所以個中位數係0.3克」。因此，「以呢個中位數嚟計算，喺呢件案件裡面嘅33.53克嘅冰係足夠服用112日」。PW3還進一步強調，「吸食1克嘅冰就返唔到工」，及如果要把30克冰毒一日一克地於30天內吸食完畢的話（即申請人自稱的用量），「吸食者第三日就已經入咗醫院」。

The defence case
辯方案情

The applicant did not give evidence or call any witnesses. He relied on the account he had put forward since the time of his arrest, namely the dangerous drug was purely for his own consumption. And for this reason, he did not object to the prosecution producing in evidence his subsequent cautioned video-recorded interview, the material contents of which are as follows: he had been consuming the dangerous drug “ice” for almost 10 years, with a daily consumption of 1 gramme or slightly over 1 gramme; he consumed (the substance) mostly in a toilet or at a friend’s home; the dangerous drug “ice” in question was purchased from a male “Ah Shing” (transliteration) who frequented Sai Yee Street Garden in Mong Kok; the time of the purchase was before the applicant’s arrest; the aggregate weight of the 2 packets of dangerous drug “ice” in question was 1 ounce plus 7 grammes; he purchased 2 packets at one go because the price would be lower; the actual amounts he had paid were $1,900 (for the larger packet) and $500 (for the smaller packet); this batch of dangerous drug ice would last him approximately a month; the applicant originally lived with his family in Tuen Mun, however, at the material time, he “slept from place to place”, including sauna bathhouses where he would visit for bathing; at the time of the arrest, he was at 15 Soy Street in Mong Kok simply because he wanted to go to a sauna bathhouse at the above location for bathing; the applicant was a “casual worker” by occupation, earning a daily wage of about $800, or $15,000 to $16,000 on a monthly basis.
申請人並無作供或傳召證人。他依賴他從被捕一刻已開始提出的說法，即毒品純粹是供他自用。亦由於這個原因，他不反對控方把他在其後的警誡錄影會面紀錄呈堂。該錄影會面的關鍵內容如下：他吸食冰毒已差不多十年，每日的用量是1克或稍多於1克；他吸食的地方大多為廁所或朋友的家；涉案冰毒是購自一名經常在旺角洗衣街公園出沒的男子「阿成」，購買的時間是申請人被捕之前；涉案兩包冰毒的總重量是1安士加7克，他一次購買兩包是因為價錢會比較便宜；他實際支付的金額是1,900元（大的一包）和500元（細的一包）；這批冰毒大約可供他吸食一個月；申請人原本和家人住在屯門，在相關時段則「周圍瞓」，地方包括他會去洗浴的桑拿浴室；他被捕時身處旺角豉油街15號就是因為他要到上址一間桑拿浴室洗浴；申請人的職業是「散工」，日薪約800元，一整月計算就是15,000至16,000元。

The present appeal
是次上訴

Mr Cheung, solicitor advocate representing the applicant only at the appeal stage, advanced three grounds of appeal. Upon “re-amendment”, ground (1) of the grounds of appeal complained that:
在上訴階段才代表申請人的張律師提出了三項上訴理由。經過‘再修訂’之後，該幾項上訴理由中的理由（1）投訴：

In respect of expert evidence on the maximum daily dosage of the dangerous drug “ice”, it is found that there is additional expert evidence and other evidence which may negate or undermine the expert evidence relied upon by the prosecution in the present case, rendering the guilty verdict unsafe.”
就每日最高吸食冰毒劑量的專家證據，發現有額外的專家證據及其他證據可能會否定或削弱控方在本案所依賴的專家證供，令定罪的決定不穩妥。」

The additional evidence that Mr Cheung referred to was primarily the ruling of the Court of First Instance rejecting the expert evidence on the same issue given by PW3 in HKSAR v McCall Howard Kenneth & Lam Aroon HCCC 446/2016 (27 October 2017), as well as the expert reports on the maximum daily dosage of the dangerous drug ice by four other psychiatrists or toxicologists. The said batch of expert reports prepared between March 2013 and March 2018 revealed that chronic “ice”-users in Hong Kong, in spite of the fact that they represented a relatively small proportion of the (total) number, could consume up to 1 gramme per day. Two of the reports even indicated (a daily consumption of) up to 2 grammes.
張律師所指的額外證據，主要是原訟法庭在HKSAR v McCall Howard Kenneth & Lam Aroon HCCC 446/2016（2017年10月27日）一案拒絕接納PW3就同一議題所作出的專家證據的判詞，以及由另外四名精神科醫生或毒理學家就冰毒最高日用劑量所曾作出的專家報告。該批書寫於2013年3月至2018年3月期間的專家報告顯示，雖然在人數上的比例較少，但本港長期冰毒服用者的每日吸食量可達到1克，其中兩份報告更指可達到2克。

Given the extremely significant inconsistency between these conclusions and PW3’s evidence, the respondent took the position that they do not oppose leave being granted to the applicant and the appeal being allowed. As the maximum daily dosage of the dangerous drug “ice” is a piece of important circumstantial evidence which may serve the purpose of drawing inferences as to whether the dangerous drug in question was for self-consumption, this Court is of the view that the position of the respondent is fair and correct.
由於這些結論和PW3的證供有極大抵觸，答辯方的立場是他們不反對申請人應取得上訴許可和在上訴中得直。由於冰毒的最高日用劑量，是可用作推斷涉案毒品乃自用與否的重要環境證據，本庭認為答辯方的立場是公平和正確的。

Whether there should be a retrial
重審與否

Mr Cheung opposed the respondent’s application for a retrial.  However, having heard the submissions from both parties, this Court considered that:
張律師反對答辯方要求重審的申請。不過，本庭在聽取過雙方陳詞之後認為：

Regardless of the actual quantity of the dangerous drug in question, trafficking in a dangerous drug is in itself an extremely serious offence, which should not be let pass easily.
不論涉案毒品的實際數量多少，販毒本身就是一項極其嚴重的罪行，不容輕易放過。

The prosecution evidence in the present case is not too flimsy. There is the possibility that the applicant may be convicted of trafficking in a dangerous drug at retrial.
控方在本案的證據並非過弱，申請人有在重審中被裁定販毒罪成的可能。

The possibility that the applicant may eventually be acquitted of trafficking in a dangerous drug and the high risk that the term of imprisonment served would be longer than that for simple possession could be addressed by granting bail pending retrial.
申請人最終被裁定販毒罪不成立、但服過的刑期卻比單純管有罪的刑期高的風險，可由取得保釋等候重審的安排處理。

Judgment
判決

We grant the applicant leave to appeal against his conviction, allow the appeal and (order) the case to be remitted to the Court of First Instance for retrial. The applicant may be admitted to bail pending retrial on the conditions agreed upon during the hearing.
本庭批准申請人就他的定罪提出上訴，並裁定他的上訴得直，案件須發還原訟法庭重審。申請人可根據在聆訊時商定的條件取得保釋等候重審。

Eric Cheung, Solicitor Advocate, and Lydia Leung, Barrister-at-law, instructed by ONC Lawyers, assigned by the Legal Aid Department, for the Applicant
申請人：由法律援助署委派柯伍陳律師事務所轉聘張達明訟辯律師及梁晴怡大律師代表

Franco Kuan, Senior Public Prosecutor, of the Department of Justice, for the Respondent
答辯人：由律政司高級檢控官關百安先生代表