Hon Yeung VP (giving the Reasons for 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理由書：

Introduction
引言

Around 3 pm on 10th October 2012, the Applicant (Chung Tang Ping) entered Hong Kong territory from Mainland China via Lok Ma Chau Control Point.  At that time, the Applicant was carrying with him a red backpack containing a yellow environmental bag, inside of which were twelve plastic bags.  The said twelve plastic bags were placed in brown sealed bag(s) with characters“鐵觀音”(Tie Guan Yin) and “茶”(tea) printed on the outside, but they in fact contained solid substance weighing 2.88 kilograms containing 2.35 kilograms of ketamine.
2012年10月10日約下午3時，申請人（鍾登平）經落馬洲管制站由國內入境香港。申請人當時攜帶的紅色背包有一黃色環保袋，內有12個膠袋。雖然該12個膠袋都是放在有封口及外面印有“觀音王”、“茶”等字樣的啡色袋內，但它們所載的其實是重量為2.88公斤，內含2.35公斤氯胺酮的固體。

Besides the said dangerous drugs, the backpack which the Applicant was carrying also contained four cell phones and on his person, there was a Construction Industry Safety Training Certificate, a Construction Workers Registration Certificate, a Hong Kong Octopus Card, a Shenzhen Octopus Card, 170.5 Renminbi, HK$500, six bank cards and six keys.
除上述毒品外，申請人攜帶的背包內有四部手提電話，而他身上則有一張建造業安全訓練證明書、一張建造業工人註冊證、一張香港八達通卡、一張深圳八達通卡、170.5元人民幣及500元港幣、六張銀行卡和六條鎖匙。

The travelling record of the Applicant showed that the Applicant left Hong Kong to enter Shenzhen via Lowu Control Point at around 6 pm on 9th October 2012.  He returned to Hong Kong via Lok Ma Chau Control Point at around 3 pm on 10th October 2012.
申請人的旅遊記錄顯示他是在2012年10月9日下午約6時經由羅湖管制站離港進入深圳，並在2012年10月10日下午約3時，經落馬洲管制站返回香港。

For the said incident, the Applicant was charged with the offence of trafficking 2.88 kilogrammes of solid substance containing 2.35 kilogrammes of ketamine.  The Applicant pleaded not guilty and was tried before Deputy High Court Judge Woo Kwok Hing (trial judge) sitting with a jury.
上述事件導致申請人被控一項販運內含2.35公斤氯胺酮的2.88公斤固體罪。申請人否認控罪，並在高等法院暫委法官胡國興（原審法官）會同陪審團席前受審。

On 7th August 2013, the Applicant was found guilty upon a unanimous decision reached by the jury and was sentenced by the trial judge to a term of 18 years’ imprisonment.  Aggrieved with the conviction, the Applicant applied for leave to appeal against conviction.
2013年8月7日，申請人被陪審團一致裁定罪名成立，並被原審法官判入獄18年。申請人不服定罪，提出上訴許可申請，要求獲准就定罪上訴。

After a hearing held on 29th July 2016, the Court allowed the Applicant leave to appeal against his conviction, and treating the hearing as the appeal proper, we allowed the appeal and quashed the conviction and the sentence against him.  The Court also ordered the case to be remitted to the Court of First Instance for retrial.  Below are the reasons for judgment of the Court.
2016年7月29日經聆訊後，本庭批准申請人就定罪上訴，並視其申請為正式上訴。本庭裁定申請人上訴得直，並撤銷針對申請人的定罪及判刑。本庭同時下令案件要發還原訟法庭重審。以下是本庭的判案理由。

Prosecution’s evidence
控方證據

Besides the undisputed facts as stated in paragraphs 1-3 above, the Prosecution also alleged that the Applicant, after he has been arrested and under caution, admitted that he brought “K chai” (transliteration) to Hong Kong for others only because he was short of money and needed to make a living.  In the subsequent video interview taken with the police afterwards, he confirmed the admissions he had made and also made further admissions as stated below:
除了上文第1至3段列出的無爭議案情外，控方亦指申請人被拘捕及在警誡下承認因為自己缺錢，要生活，才幫人帶“K仔”來香港。其後，申請人和警方進一步錄影會面時，確認他曾作出過的招認，並作出以下進一步的招認：

“He brought ‘K-chai’ from Futian of Shenzhen to Hong Kong for others.  He came across a fellow he fussily called ‘old pal’ in the Kentucky restaurant in Shenzhen, whom he had come to know in his dealings as a ‘parallel goods trader’.  When the Applicant told ‘old pal’ that he had had ‘no jobs in hand’, ‘old pal’ asked him if he wanted to make any money.  Subsequently, the Applicant agreed to bring ‘K-chai’ for him back to Hong Kong for a remuneration of 2000 dollars.  Eventually, old pal’ handed over a red backpack to the Applicant.  ‘Old pal’ asked him to bring it to a bicycle storage place next to the Man On Shan line MTR station at Che Kung Temple in Shatin, and then return to Shenzhen to receive the remuneration.  However, when the Applicant himself alone passed through the Control Point, he was intercepted by the police.  According to the Applicant, ‘old pal’ was about 30 years old, ‘plump and of short build’ and ‘had black hair’.
“他是替人從深圳福田帶‘K仔’來香港。他在深圳肯德基餐廳碰到他做‘水貨客’時認識的一名他多口叫作‘老友’的人。當申請人告知‘老友’自己‘冇工開’時，‘老友’問他是否想賺錢。其後申請人同意替他帶‘K仔’返香港，以賺取2,000元報酬。結果，‘老友’交了一紅色背包給申請人，並囑咐他將背包帶往沙田車公廟馬鐵站旁擺單車的地方後，再返回深圳收取報酬。但當申請人一個人過關後，被警員截查。申請人表示‘老友’約30歲、‘矮矮肥肥’、黑頭髮。”

Defence’s stance and the grounds of Defence
辯方的立場及答辯理由

The Applicant did not elect to give evidence, nor did he call any witness to give evidence on his behalf.   The Defence’s stance which the Applicant established in cross-examining the Prosecution witnesses was that a person called big sis May had handed over the dangerous drugs in the material case to him, falsely claiming that the dangerous drugs were tea leaves and asking the Applicant to bring them back to Hong Kong.  The Applicant said that after arrest, he had indicated to the police that big sis May was together with him when passing through the Control Point, and also had at the scene pointed her out to the police and asked them to conduct enquiries on her.  The Applicant denied having made any admissions to the police.  He also alleged that the content of the video-interview was obtained as a result of the police inducing and coercing him into giving the statement.  Besides, before the commencement of the interview, the police had also coached him how to give succinct answers as well as the content of those answers.  According to the Defence’s stance, the contents of the video-interview were not given by the Applicant of his own volition and they were not true and accurate.
申請人沒有作供自辯，亦沒有傳召任何證人為他作供。申請人透過盤問控方證人所表達的辯方立場是有一名叫May姐的人將涉案毒品交給他，並訛稱毒品是茶葉及要申請人將它們帶返香港。申請人指被捕後，曾向警員表示May姐有和他一起過關，並有當場向警員指出May姐及邀請警員去調查她。申請人否認有向警員作出過任何招認。他更指錄影會面的內容是警員透過威逼利誘取得的，而在錄影開始前，警員更有教他如何作出簡短的答覆及答覆的內容。辯方的立場是錄影會面的內容並非申請人自願作出的，亦非真確。

The trial judge’s direction to the jury
原審法官向陪審團的指引

Before directing the jury, the trial judge had inquired counsel of both parties on whether he should direct the jury regarding the drawing of inference on whether the Applicant had knowledge of the presence of the dangerous drugs inside the backpack he was carrying.  At that point, the judge indicated that he had yet decided on whether or not to direct the jury on the issue of “drawing inference”.  He considered that he had to learn first how counsel of both parties would address the jury in their final submissions.  However, in the end, the trial judge did not give any direction at all to the jury regarding the drawing of inference on whether the Applicant had knowledge that the plastic bags inside the backpack he was carrying actually contained dangerous drugs.
原審法官向陪審團作出指引前，曾向雙方大律師查詢應否就推論申請人是否知悉其攜帶的背包內有毒品一事向陪審團作出有關指引。當時原審法官表示未決定應否就“推論”一事指導陪審團，他認為要先看看雙方大律師如何向陪審團作出結案陳詞。但最終原審法官完全沒有就推論申請人是否知悉其攜帶的背包內的膠袋內藏有的其實是毒品一事向陪審團作出任何指引。

The trial judge had explained to the jury the factual issues and the matters of law.  The trial judge also had referred the jury to the evidence of the case.  The trial judge had emphasized to the jury that they must be certain that the Applicant had committed the offence before they could convict him, otherwise they must find him not guilty.
原審法官有就案件涉及的事實爭議和法律問題向陪審團解釋。原審法官亦有向陪審團覆述案件的證據。原審法官向陪審團強調他們必須肯定申請人有罪才可以判他罪名成立，否則他們必須判申請人無罪。

The trial judge when summarizing the evidence adduced by the Prosecution said the following to the jury:
原審法官向陪審團簡述控方證據時說：

“… In the morning of 10th October 2012, the Prosecution had got information, was tipped-off that the defendant would turn up at the spur line Control Point as well as inside the MTR station of Lok Ma Chau and engage in dangerous drugs activities.  Hence, a team of officers, … arrived at that place, and found the defendant carrying the red backpack, then arrested him, … and found inside the red backpack dangerous drugs, opened one packet to take a look, and saw it was “k-chai”, so under cautioning, the defendant admitted to acting as courier to bring “ k-chai” into Hong Kong for others. ”
“…2012年10月10日早上，控方就有資料、有線報，被告人會出現喺落馬洲支線管制站同埋港鐵站之內，咁涉及毒品嘅活動，於是一隊人，…就係去到嗰度，同埋發現咗被告人係孭住紅色嘅背包，然後就拘捕佢，…就發現紅色嘅背囊裡面有毒品，開咗一包嚟睇，就係「K仔」，咁喺警誡之下，被告人承認幫人帶「K仔」嚟香港。”

The trial judge when summing up the Defence’s stance to the jury had mentioned the following:
原審法官向陪審團覆述辯方的立場時有說過：

“The Defence’s account was that when the defendant was at the escalator, at the escalator in the lobby, coming up from the location of DIA, down below was that person, then pointing to that person, that was big sis May, pointing at that person, ie to show to the police, pointing to show to the police officers, so he said that one was big sis May, the one who gave the backpack to him.  Hence, this contradicted with the story in the video-interview, P31, which said that the backpack was given to him by old pal, which was different, how come there it mentioned old pal, here it mentioned big sister May. If so, it conflicted with paras. 287 and 292 of P26.  Besides, the Defence had put it that he and big sis May passed through the Control Point together, so here, this conflicted with what was mentioned in para. 233 of P26 that he passed through the Control Point alone, because it was mentioned at P26, in para.233 that he passed the Control Point alone, here was where the conflict lies, compared with his saying… what he, the Defence raised in cross-examination, the so-called means, the saying.  According to the Defence, after the defendant was arrested, before getting onto the vehicle to proceed to Lok Ma Chau police station, he had asked the police officers repeatedly, 51516, also 503, asking why not arrested the female, ie why not arrested big sis May.  So, this point was inconsistent with the saying that he had no knowledge of the presence of dangerous drugs inside the backpack, if he carried tea leaves for others, why on earth did he ask someone to arrest the female?   To act as courier to bring tea leaves for the female, ie not in line with his saying that he did not know that the stuff was dangerous drug, because if he was carrying tea leaves for the female, at that point of time there was no mentioning by him that the Prosecution witness had  torn open a packet, giving him the chance to see that that was dangerous drug, in that case why would he ask the police, why did they not arrest the female, what had it got to do with the female, bringing tea leaves, so what, so to speak.”
“辯方嘅說法就係話被告人喺扶手電梯，喺嗰個大堂嗰個扶手電梯，D1A嗰度上去嘅時候，就下面有個人就向佢指一指，嗰個May姐向佢指一指，即係指畀差人睇喇，指畀警方嘅人員睇喇，咁佢就話嗰個就係May姐就係畀背囊佢嗰個人，咁呢個同P31嗰個錄影會面嗰個故事，話係老友畀個背囊佢係衝突嘅，係唔同嘅，點解喺嗰度就講老友，嗰度就講May姐呢，咁就係同嗰個P26，287同埋292段嗰度係衝突嘅。仲有，辯方嘅說法喇，話佢係同May姐一齊過關，咁呢度同P26第233段所講一個人過關嗰度係衝突嘅，因為P26嗰度講，第233段嗰度講，佢一個人過關，咁呢度係衝突嘅，同佢講話--佢而家辯方所盤問、所講嘅方法，嗰個說法。辯方嘅說法喇，就話被告被捕之後，上車去落馬洲警署之前，佢多次問啲警員，51516、503佢都問過，話點解唔拉嗰個女人呢，即係點解唔拉May姐，咁呢個就同佢唔知道背囊裡面有毒品嘅說法係不符，如果佢係同人袋茶葉，佢做乜嘢叫人拉嗰個女人呢，同個女人帶啲茶葉，即係同佢個說法，話佢唔知道嗰啲係毒品係不符，因為如果佢係替嗰個女人帶茶葉喇，咁嗰陣時佢都冇話係控方嘅證人已經撕開咗一包畀佢睇到係毒品，咁點解佢會問警察，點解唔拉嗰個女人呢，關個女人咩嘢事呢，帶茶葉，so what，所謂。”

Subsequently, the trial judge realized that what he said above was erroneous, so on the following day when he went on to direct the jury, he rectified the error and said the following to the jury:
其後，原審法官察覺上述說法有錯，故在翌日繼續指引陪審團時糾正他的錯誤，並向陪審團說：

“Members of the jury, sorry to keep you waiting, because we need to clarify something, so have to keep you waiting, and now the issue has been clarified. Yesterday, I mentioned to you about the defendant’s case, the Defence’s account was that after the defendant’s arrest and before getting onto the vehicle to Lok Ma Chau, he had mentioned to the police officers, ie 51516, he said why on earth not arrested that female, big sis May, about this matter, I had erred when saying this.  In actual fact, he was not asked at this point according to the evidence which we had heard.  When 51516 was being asked, he was not asked that the defendant when spoke to him as to why not arrested big sis May, not the case, he didn’t say this, didn’t ask this, when he asked, it was as such… the defendant was requesting the police , requesting 51516 to make enquiry of big sis May, he did mention big sis May, just to enquire, not saying to arrest her, hence had no conflict with his account which said that he didn’t know dangerous drugs were being carried, instead he was merely carrying tea leaves, understand?  You need to know clearly that I had erred when saying this, and so this matter on the evidence has to be rectified.  Secondly, regarding what I mentioned yesterday, I said one of the weaknesses of the Defence was that according to the Defence’s account, there’s this person, big sis May, about this woman, pointing at her and said this person was big sis May who gave him the tea leaves to bring back to Hong Kong.  There in the video-interview, at P31, which you had watched, had been played, or there in the transcript, ie P26, you will note the conflict, because in the video-interview, it was mentioned that it was given by old pal, the stuff was given by old pal.”
“各位陪審員，唔好意思，要你哋等，因為我哋要澄清一啲嘢，所以要你哋等，而家就澄清咗喇。琴日，我向你哋講話被告人嘅說法，辯方嘅說法就係話佢被拘捕之後，上車去落馬洲之前，佢就同警方嘅人員講，即係51516喇，佢就話點解唔拉嗰個女人，個May姐，咁嗰度係我講錯，係我講錯咗，個實情，我哋聽過嗰啲證據就唔係問佢嘅時候，問51516嘅時候，唔係問佢個被告人同佢講話點解唔拉May姐，冇，佢冇咁講嘅，冇咁問，佢問嗰度就係話點--個被告人係邀請警方，邀請51516去調查May姐，佢有講過May姐，去調查啫，唔係話拉佢，咁就唔係同佢嗰個故事話佢唔知道係帶毒品，只不過係帶茶葉嗰個說法唔係衝突嘅，明白嘛？你要清楚知道，我講錯咗，咁嗰個要糾正番呢一個證據上嘅問題。咁第二方面喇，就係我琴日亦都有講，我話嗰個辯方嘅弱點之一喇，其中嘅就係嗰個辯方嘅說法喇，話有個May姐，話個女人指佢一指，嗰個就係May姐喇，就畀佢帶茶葉返嚟香港嘅，嗰度同嗰個錄影會面，嗰個P31嗰度，你睇過、播放過，或者嗰個謄本就係P26嗰度有衝突，因為嗰個錄影會面嗰度講嘅故事就係話老友畀佢，啲嘢係老友畀佢。”

The trial judge once again drew the jury’s attention to two points of conflict existing between the Defence’s stance and the Applicant’s account noted in the record of interview:  (1) According to the Defence’s stance, the dangerous drugs involved in the case were given by big sis May, whereas in the record of interview, it was “old pal” who gave them to him; (2) According to the Defence’s stance, the Applicant and big sis May had passed through the Control Point together, whereas in the record of interview, the Applicant passed through the Control Point alone.
原審法官再一次向陪審團指出辯方的立場和申請人在會面記錄內的說法有兩點衝突：（一）辯方立場是涉案毒品是May姐交給他的，但在會面記錄則說是“老友”交給他的；（二）辯方立場是申請人是和May姐一起過關，但在會面記錄則說他是一個人單獨過關。

In making his comment when directing the jury, the trial judge had set out in detail those points which he considered to be the weaknesses of Defence’s case, and had repeatedly stressed that there were inconsistencies between the Defence’s stance and the account recorded in the interview between the Applicant and the police officer.
原審法官在引導陪審團的陳詞有詳細列出他認為是辯方的弱點，並多番強調辯方的立場與申請人和警員會面時的說法有不同。

Grounds of Appeal
上訴理由

Mr. Andy Hung, the counsel for the Applicant, raised a series of grounds in supporting the Applicant’s application.
代表申請人的孔慶碩大律師提出多項上訴理由，支持他的申請。

Mr Hung submitted that during the trial, the jury were aware of the fact that the police had received information indicating that the Applicant was involved in dangerous drugs activities and would turn up at the Lok Ma Chau Control Point and inside the MTR station, and also acting thereupon the police proceeded to intercept the Applicant.  The prejudice caused to the Applicant as a result of the jury’s awareness of this fact had outweighed the probative value of the said evidence in the trial. However, the trial judge had not instantly stopped the questioning, nor did he, when directing the jury, point out expressly to them that they could not form an adverse opinion against the Applicant on the ground that the Applicant was the target person of the police information.  Mr Hung was of the view that the trial judge’s approach in dealing with the matter constituted unfairness to the Applicant.
孔大律師指原審時，陪審團知悉警方是根據線報顯示申請人涉及毒品活動及會在落馬洲管制站和港鐵站內出現去截查申請人，而這點對申請人的損害大於該些證據的舉證價值，但原審法官沒有隨即停止該方面的查問，亦沒有在引導陪審團時向他們指明他們不能以申請人是警方線報的標的人物而針對申請人。孔大律師認為原審法官的處理方法對申請人造成不公。

Mr Hung submitted that the trial judge’s direction to the jury, as a whole, had been unfair and unbalanced, thereby depriving the Applicant of the chance of a fair trial.
孔大律師認為原審法官對陪審團的整體指引，是不平衡公允，導致申請人沒有得到一個公平審訊的機會。

Mr Hung emphasized that on the matter of the Defence’s stance, the trial judge had made an error of fact.  Mr Hung submitted that the trial judge had mistakenly adopted the view that, the Applicant had questioned the police officer(s) many times why the female whom he had pointed out was not arrested, and used these matters to refute the Applicant’s account of his ignorance.  The rationale for that view was that if the Applicant had no knowledge that the backpack contained dangerous drugs, and that at that point of time, the police officer had not yet opened any packet of tea leaves, showing the suspected dangerous drugs contained therein, no ground would exist at all for the Applicant to request the police to arrest the female pointed out by him.
孔大律師強調原審法官就辯方的立場犯了事實上的錯誤。孔大律師指出原審法官錯誤地認為申請人曾多次向警員質疑為何不拘捕他指出的女子，並以該些事情來駁斥辯方指申請人不知情的說法，原因是假若申請人不知悉他攜帶的背包內有毒品，而當時警員還沒有打開任何一包茶葉，顯示內藏可疑毒品，申請人根本沒有基礎指警員應該拘捕申請人指出的女子。

Mr Hung contended while the trial judge had, when he was directing the jury on the following day, rectified the said error, ie, the Applicant was only requesting the police to make enquiry of the said female, rather than to arrest her, as well as pointing out no conflict existed between this account and the Applicant’s case that he had no knowledge of the existence of the dangerous drugs, this was not sufficient to eliminate the preconceived notion of the jury that was formed previously.
孔大律師認為原審法官在引導陪審團第二天時糾正上述錯誤，即申請人只是邀請警員調查該名女子，而非拘捕她，並指該說法和申請人不知情的說法並無衝突，不足以消除陪審團可能有先入為主的想法。

Mr Hung submitted that the trial judge had repeatedly emphasized there were conflicts between the Defence’s stance and the content of the record of interview of the Applicant, but had not appropriately expressed to the jury that the basis of such conflicts was that the Applicant had made certain admissions of his own volition, and that those admissions were true and accurate admissions.   Mr Hung considered that the trial judge should have expressed to the jury that the according to the Defence’s stance, the Applicant had not made such admissions.  Mr Hung emphasized that if the jury were not satisfied that the content of the said record of interview was given by the Applicant of his own volition and that it was true and accurate, then the conflict raised by the trial judge through comparing the Defence’s stance and the record of interview did not exist at all.
孔大律師指出原審法官多番強調辯方立場和申請人的會面記錄內容所顯示的矛盾，但卻沒有恰當地向陪審團指明該些矛盾只是建基在申請人確有自願作出過一些招認而該些招認是正確的。孔大律師認為原審法官理應向陪審團表明辯方的立場是申請人沒有作出過有關招認。孔大律師強調假若陪審團不接納有關會面記錄的內容是申請人自願作出及是正確的，則原審法官所指辯方立場和申請人會面記錄相比時所顯示的矛盾根本不存在。

Mr Hung was of the view that the comment which the trial judge made against the Defence’s stance in his direction to the jury was even more critical and severe than the submission by the Prosecution, therefore had been unfair to the Applicant.
孔大律師認為原審法官在引導陪審團時對辯方立場所作出的批評較控方的陳詞更嚴厲、尖銳，對申請人不公。

Mr Hung also alleged that the Prosecution witness/es had, in the course of giving evidence, inappropriately disclosed that the Applicant might have previous convictions.  The trial judge, however, had not indicated to the jury that they must not speculate on whether or not the Applicant had any previous convictions, and also that even if he had previous convictions, that was not relevant to offence of the present case.
孔大律師亦指控方在其證人作供期間，不恰當地向陪審團透露關於申請人可能有案底的問題，但原審法官沒有指示陪審團不可猜度申請人是否有案底，而即使他有案底亦和他是否干犯本案所指的罪行無關。

Discussion
討論

(a) Previous Convictions
(一)案底

In a criminal trial, the matter of whether or not the defendant has any previous convictions should not be disclosed to the jury, the reason being making such disclosure would cause the jury to be biased against the defendant, thereby prejudicing to the defendant.
在刑事審訊過程，被告人有案底一事不應該向陪審團透露，原因是透露被告人有案底會對被告人造成損害，令陪審團對他產生偏見。

During the trial, the counsel for the Applicant requested the Prosecution witness to verify that according to the “antecedents” of the Applicant available to the police, the Applicant got married in 2005, and his wife was a mainlander, residing in Mainland China.
原審時，代表申請人的大律師要求控方證人證實根據警方取得的申請人“三世口供”，申請人是在2005年結婚，而他的太太是大陸人，在國內居所。

Below is a conversation that followed subsequently between the trial judge and the Prosecution witness on the aforementioned “antecedents”:
原審法官隨後就該份“三世口供”和控方證人有以下對答：

“Judge’s question:…. Is this document, your document what you called the antecedents?
“官問：…呢份你係咪叫做三世書嘅嘢呀，你哋呢個？

Answer:Yes, in our department, the police department, this is the so-called the antecedents document.
答：我哋警察部門面俗稱叫做一份三世書囉，係。

Question:Antecedents, that is relating to the arrested person’s family circumstances, family condition?
問：三世書，即是係個被捕人嗰個家境、家庭狀況？

Answer:Yes, that’s right, correct.
答：係，冇錯，冇錯。

Question:Does that include, inter alia, previous convictions etc. uh, right?
問：有冇案底，咁等等嘅嘢喇，係咪呀，即係？

Answer:Little bit… this document is to assist us when we have to produce the (antecedent statement) later in court, this document.
答：少少喺--呢個係幫助我哋日後對法庭呈遞嗰份（antecedent）嘅一個幫助嚟嘅，呢份係。

Question:Um, but when was this statement taken?
問：唔，但係呢份口供係幾時攞？

Answer:This statement ….
答：呢份口供… …。

Question:Please.  Can you take a look to see when this statement was taken?
問：唔該。你而家睇下嗰份口供係幾時攞？

…
… …

Answer:1:20 pm on 11th October
答：10月11號嘅下午1時20分。

Question:Was it in 2012?
問：唔2012年吖嘛?

Answer:Correct, My Lord.
答:冇錯，法官大人。

…”
… …”

The Court did not understand why the trial judge at the said stage and in the presence of the jury asked the Prosecution witness about the antecedents of the Applicant.  We were also puzzled as to why the matter of “any previous conviction” was raised.  After going through the entire transcript of the trial, the Court could not ascertain any purpose or effect of raising these questions.   Therefore, these questions raised by the trial judge were in fact unnecessary.
本庭不明白原審法官為何要在有關階段及在陪審團在場時向控方證人查問有關申請人三世書之事，更不明白他為何要提及“有冇案底”一事。本庭翻閱過整個審訊騰本，都不能查覺提出該些問題的目的或作用。因此，原審法官的提問其實毫無需要。

However, when the said conversation was understood properly, it can be seen that they did not support Mr Hung’s allegation that the conversation suggested that the Applicant might have previous convictions, thereby constituting unfairness to the Applicant.
但恰當地理解上述問答，並不支持孔大律師指有關對答會顯示申請人可能有案底，對申請人不公。

The trial judge only pointed out that antecedents referred to matters such as the family condition, family background of the person under arrest, and “any previous convictions” etc.  The trial judge did not expressly or implicitly indicate that the Applicant had had any previous convictions.
原審法官只是指出三世書是關於一名被捕人的家庭狀況、背景及“有冇案底”等事。原審法官沒有明示或暗示申請人有案底。

The Court does not agree that the questions raised by the trial judge would constitute unfairness to the Applicant.  We did not accept either that the trial judge had to express to the jury that even if the Applicant had had any previous convictions, it would have no bearing on whether he had committed the offence in the charge.  The approach suggested by Mr Hung could even more likely predispose the jury to be biased against the Applicant.  The Court does not agree with the said suggestion.
本庭不同意原審法官的發問會對申請人造成不公，本庭更不同意原審法官要向陪審團表示即使申請人有案底，這亦和他是否有干犯控罪所指的罪行無關。孔大律師建議的做法更可能會令陪審團對申請人產生偏見。本庭不認同該建議。

(b)“Information”, “Target Person”
(二)“線報”、“目標人物”

Matters such as the police arresting a defendant upon information received or the defendant being the police’s target person should not be disclosed to the jury.  The reason is that such evidence is hearsay evidence.  Not only is it irrelevant to whether the defendant is guilty or not, it may also cause the jury to be biased against the defendant.  Terms such as “information” and “target person” are likely to arouse in one’s mind the notion that information received by the police concerning illegal activities is related to the defendant.  Such kinds of information have substantial influence on the jury, who are lay people.  It would also easily tend to predispose them to be biased against the defendant and form the preconceived notion that he/she must be related to the illegal activities. (See R v Li Chun Choi [1990] 1 HKLR 665)
警方是根據“線報”拘捕一名被告人或被告人是警方的目標人物等事項不應向陪審團披露，原因是該類證據屬傳聞證據，不但和被告人是否有罪無關，更可能會導致陪審團對被告人有偏見。“線報”、“目標人物”等用詞會令人聯想到警方收取到和非法活動有關的資料是和被告人有關，該些資料對非專業的陪審團的影響極為深遠，亦很容易令他們對被告人有偏見，認定他必然是和非法活動有關。（見R v Li Chun Choi [1990] 1 HKLR 665案）

The Court of Appeal on page 10 of the judgment of R v Ko Po Kun [1989] 2 HKLR 8 expressly stated the following:
上訴法庭在R v Ko Po Kun [1989] 2 HKLR 8案判案書第10頁，表明：

However, the Court need to point out that during the trial, the Prosecution did not proactively bring up the issue that the Applicant was the target person of the police or that the police arrested the Applicant upon information they had received.
但本庭需指出，原審時，控方並沒有主動提出申請人是警方的目標人物或警方是根據線報去拘捕申請人。

PC 33410 was one of the police officers who arrested the Applicant.  During examination-in-chief, he said expressly that he proceeded to the arrival hall of Lok Ma Chau Control Point according to instructions.  However, Mr Yu, representing the Applicant, when cross-examining the said police officer, specifically requested the police officer to disclose the content of the instructions he had received, leading the said officer to admitting that due to the instructions received, he got to know about the name of the target person, his date of birth, identity card number, his appearance from photographs, build, hairstyle and that he frequently carried a red backpack.   These particulars matched those of the Applicant.
拘捕申請人的其中一位警員33410，在主問時表明是按訓示前往落馬洲管制站入境大堂。但代表申請人的余大律師在盤問該名警員時明確要求警員表明訓示的內容，導致該名警員承認他得到訓示，令他知悉目標人物的姓名、出生日期、身份證號碼、相片、身材、髮型及經常會攜帶一個紅色背囊。該些特點和申請人吻合。

The approach of Mr Yu aroused the attention of the Prosecution counsel during the trial.  Although the focus of concern of the Prosecution counsel was that the questions put by Mr Yu could affect the investigation carried by the police.  Nevertheless, after deliberation between the trial judge and both parties in the absence of the jury, Mr Yu continued with his cross-examination, during which the police officer confirmed that the instructions which he received included, inter alia, that the Applicant would return to Hong Kong via Lok Ma Chau Control Point, and also he was involved in “trafficking” activities.
余大律師的處理方法受到原審時的主控大律師的關注。雖然主控大律師關注的焦點是余大律師的問題會影響警方的調查工作，但經陪審團不在場時，雙方和原審法官的商討後，余大律師繼續盤問警員，並得到警員確認他受到的訓示，包括申請人會從大陸經落馬洲管制站返回香港，而他涉及“販毒”行為。

The approach of Mr Yu was not difficult to understand.  Apparently, he wanted to verify that the police right at the beginning had got information saying that the Applicant was going to return from Mainland China to Hong Kong via Lok Ma Chau Control Point with a red backpack to support the Defence’s stance, ie somebody who on one hand put the dangerous drugs involved in the case into tea leaves packaging and asked the Applicant to bring the said dangerous drugs inside the backpack back to Hong Kong, whilst on the other hand, informed the police to arrest the Applicant.
余大律師的處理手法不難理解。他明顯是希望能確立警方一早有線報顯示申請人會攜帶一紅色背包經落馬洲管制站由國內返回香港，以支持辯方的立場，即有人一方面將涉案毒品包裝成茶葉後要申請人將載有該批毒品的背包帶返香港，但另一方面則知會警方去拘捕申請人。

Although it was the Defence that proactively brought up the issue that the police acted upon information to proceed to Lok Ma Chau Control Point to arrest the Applicant, who was the target person of the police, with the express purpose to reinforce the Defence’s stance, the trial judge should proactively explain to the jury when he was directing them the reason for disclosing to them the Applicant’s identity as the police’s target person, in order to avoid causing the jury to be biased against the Applicant on the ground that the Applicant was the police’s target person.  He should also make it plain to them that they should not on that ground form the notion that the Applicant therefore must be related to the police’s anti-dangerous drugs activities, and that the Applicant had taken part with knowledge in the said offence.
雖然申請人是警方的目標人物，而警方是根據線報前往落馬洲管制站拘捕申請人一事是由辯方主動提出，而其明確目的是為了加強辯方的立場，但在引導陪審團時，為了要避免陪審團因申請人是警方目標人物一事對申請人抱有偏見，原審法官應主動向陪審團解釋向他們披露申請人是目標人物的原因，並向他們表明他們不應該因該事而認為申請人必然和警方的反毒品行動有關，及申請人是在知情下參與該罪行。

The trial judge when directing the jury pointed out that the police from sources and information by informant learnt that the Applicant would appear at the Lok Ma Chau Control Point and engage in dangerous drugs activities.  However, the trial judge had not expressed to them that the said incident was irrelevant to whether the Applicant had with knowledge taken part in dangerous drugs activities, and also they may not because of this form a biased view of the Applicant.
原審法官在引導陪審團時指警方是根據資料和線報得知申請人會出現在落馬洲管制站及會涉及毒品活動，但沒有向他們表明該事件和申請人是否有在知情下參與販毒活動無關，而他們更不能因該事件而對申請人有偏見。

The Court agree that the trial judge had in fact acted in a manner constituting unfairness to the Applicant.
本庭同意原審法官的做法對申請人確有不公。

(c) Lack of direction on inferring knowledge
(三)沒有知情推論的指引

The facts of this case was simple.  There was not much scope of dispute between the parties.  The allegation of the Prosecution was that when the Applicant was intercepted for enquiry, upon search in the backpack which he was carrying was found a large quantity of ketamine in tea leaves packaging, and under caution, the Applicant had made both verbal and written admissions.
本案的案情簡單，雙方爭議的範圍亦不大。控方指截查申請人時，在他攜帶的背包內搜出包裝成茶葉的大量氯胺酮，而在警誡下，申請人有作出過口頭及書面的招認。

The Defence accepted that the ketamine in the material case was found upon search in the backpack carried by the Applicant, but denied that any relevant verbal or written admissions had been made.  The Defence’s stance was that police officer(s) by way of coercion and inducement had made the Applicant sign on the document, and that under instigation and abetment of the police officer(s), he had made some untrue statements.  The Defence also claimed that the Applicant had had no knowledge of the fact that the plastic bag(s) which appeared to contain tea leaves contained ketamine.  The Applicant, however, did not go to the witness box to testify nor did he call any witness to support the Defence’s stance or account.
辯方同意涉案氯胺酮是在申請人攜帶的背包內搜出，但否認有作出過有關的口頭或書面招認。辯方的立場是警員威逼利誘申請人，要他在文件上簽名，而他亦是在警員的誘導及教唆下作出一些並非真確的陳述。辯方亦指申請人對看似是茶葉的膠袋內載有氯胺酮不知情。但申請人沒有作供，亦沒有傳召證人支持辯方的立場及說法。

The jury needed to deliberate on issues including whether the relevant admissions were made by the Applicant of his own volition and whether their content were true and accurate.  If the jury decided that the Applicant had made such admissions, they had to further consider whether the Prosecution’s evidence as a whole was sufficient to cause them to be satisfied that the Applicant was in possession of the ketamine in the material case with knowledge for the purpose of trafficking.  Even if the jury were of the view that the Applicant had not made the said admissions or their content were not true and accurate, and that they would not include them in consideration in accordance with the direction of the trial judge, the jury still had to decide whether the Applicant had knowledge of the existence of the said ketamine in his possession based on other undisputed evidence, namely when the Applicant was entering  Hong Kong from Mainland China, he was carrying with him a red backpack, inside of which were 12 brown sealed plastic bags with  characters “鐵觀音” (Tie Guan Yin) “茶” (tea) printed on the surface and containing large quantities of the ketamine in the material case.  In the absence of direct evidence, the jury had to rely on the Prosecution’s evidence to draw inference on whether the Applicant had knowledge of the existence of the dangerous drugs inside the backpack that he was carrying.
陪審團要解決的議題，包括有關的招認是否申請人自願作出及其內容是否真確。如陪審團認定申請人有作出過該些招認，他們要進一步考慮控方的整體證據是否足以導致他們確信申請人是在知情下管有涉案的氯胺酮，用作販運用途。即使陪審團認為申請人沒有作出過有關招認或該些招認內容並非真確，而他們要根據原審法官的指引不將該些招認考慮在內，但陪審團仍要根據其他無爭議的證據，即申請人從國內進入香港時，其攜帶的紅色背包內有12個封口及印有“觀音王”、“茶”等字樣的啡色膠袋，內有涉案的大量氯胺酮等證據來決定申請人是否在知情下管有該些氯胺酮。由於沒有直接證據，陪審團要根據控方證據來推論申請人對其攜帶的背包內藏毒一事是否知情。

If the jury could draw on the basis of other undisputed evidence as the only reasonable inference that the Applicant had knowledge of the existence of ketamine or other kinds of “dangerous drugs” inside the backpack he was carrying, then it would not be difficult for them to be satisfied that the Applicant was in possession of the said batch of ketamine for the purpose of trafficking, in particular the undisputed evidence was that the Applicant had brought the said batch of ketamine from Mainland China into Hong Kong.
假若陪審團根據其他無爭議的證據能作出的唯一合理推論是申請人知悉背包內載有的物品是氯胺酮或其他“毒品”，則他們不難確信申請人管有該批氯胺酮作販運用途，特別是無爭議的證據顯示申請人是從國內將該批氯胺酮帶入香港。

However, the trial judge did not direct the jury as to what approach they should adopt in the drawing of inference.  Nor had he reminded the jury that before drawing the inference that the Applicant was guilty or other inferences not in favour of the Applicant, they must be satisfied that based on the accepted evidence, such inference was the only reasonable and irresistible inference that could be drawn, otherwise the jury could not draw the inference that the Applicant was guilty or any other inferences adverse to him.  Although Mr Hung had not raised this point as a ground of appeal, the Court is of the view that the fact that the trial judge did not direct the jury on the matter of inference was fatal to verdict convicting the Applicant.
但原審法官並沒有指引陪審團處理推論時應採取的態度，更沒有提醒陪審團他們作出申請人有罪或對申請人不利的推論前，必須確信根據他們接納的證據，申請人有罪或對申請人不利的推論是唯一合理和不可抗拒的推論，否則陪審團不能作出申請人有罪或不利申請人的推論。雖然孔大律師沒有提出這上訴理由，但本庭認為原審法官沒有就推論指引陪審團一事對針對申請人的有罪裁決是致命的。

(d) Inadequacy of rectification on error in direction
(四)糾正錯誤指引的不足

The jury certainly were aware of the conflicts existing between the stance indicated by the Defence and the content of the relevant admissions.
陪審團必然知悉辯方表達過的立場和有關招認的內容是有矛盾的。

The trial judge had repeatedly drawn attention to these conflicts, including whether the Applicant passed through the Control Point alone or he and big sis May passed through the Control Point together; and whether the backpack was given by “old pal” or given by big sis May.  In the course of directing the jury, the trial judge also misunderstood the Defence’s stance when he said that the Applicant had asked the police officer(s) why they did not arrest big sis May.  He also stressed that this account was inconsistent with the Defence’s stance that the Applicant had no knowledge of the existence of the dangerous drug inside his backpack.
原審法官多番提醒該些矛盾，包括申請人是一個人過關或和May姐一齊過關；及紅色背包是源自“老友”或May姐。在引導陪審團的過程中，原審法官更曾有誤解辯方的立場，指申請人曾向警員查詢為何他們不拘捕May姐，並強調該說法和辯方指申請人不知悉其背包內有毒品的立場不符。

Although on the following day, the trial judge did rectify the said error, and also had reminded the jury that if they could not be satisfied that the said video interview was not given by the Applicant, or that its content was not true and accurate, then they needed not consider those records of interview.  However, the trial judge had not reminded the jury that the basis of such contradiction and conflict was the Prosecution’s allegation that those verbal and written admissions had actually been made by the Applicant.   Nor did the trial judge alert the jury to the matter that when deliberating the said issue, besides the circumstances seen in the record of interview as alleged by the Defence, they also have to take into consideration the Defence’s account that the Applicant had not made the verbal admission.
雖然原審法官在翌日有糾正上述錯誤，亦有提醒陪審團如他們不能確信有關的錄影會面記錄並非源自申請人，或其內容並非真確，則他們無需理會該些錄影會面記錄，但原審法官沒有提醒陪審團他所指的矛盾及衝突是建基在申請人確有如控方所指有作出過該些口頭和書面招認。原審法官亦沒有提醒陪審團考慮上述議題時，除了辯方指錄影會面記錄出現的情況外，陪審團亦要考慮辯方指申請人沒有作出口頭招認的說法。

When presiding over criminal cases sitting with a jury, the trial judge is entitled to make comments on the relevant evidence, and   when appropriate, use wordings that are persuasive.  However, because the summing-up of the trial judge to the jury is the last statement heard by the jury before retiring from court for deliberation, therefore, its influence on the jury would be even greater than that of the Defence’s submission.  Hence, the trial judge’s direction must be fair and take into consideration the interests of the Prosecution and the Defence.  If the directions of the trial judge to the jury are not fair, reiterating to the jury repeatedly “these issues are to be the decision of the jury” would be pointless in this regard. (HKSAR v Umali [2011] 3 HKC 146)
和陪審團一起處理刑事案件時，主審法官當然可以評論有關證據，而在合適時更可以使用具說服力的用詞。但主審法官對陪審團的指引是陪審團退庭商議前聽到的最後陳述，對他們的影響力較辯方的結案陳詞更大。因此，主審法官的指引必須公平及兼顧控辯雙方的權益。如主審法官對陪審團的指引並非持平時，不停地向陪審團說“該些事項是由陪審團決定”亦是無補於事。（見HKSAR v Umali [2011] 3 HKC 146案）

The Court of Appeal, in HKSAR v Yeung Chor Ming [2004] 1 HKLRD 136, having considered a series of cases concerned with whether the summing-up by the trial judge was delivered in a fair and just manner, set out the following two legal principles (see page 145 of the Judgment):
在香港特別行政區訴楊楚明 [2004] 1 HKLRD 136案，上訴法庭經考慮多宗和主審法官向陪審團作出的指引是否持平及公正有關的案例後，列出以下兩項法律原則（見判案書第145頁）：

“(a)the judge should not usurp the jury’s function of being the sole arbiter of facts.  Hence, in the summing-up, the expressions and comments made by the judge in the course of the summing-up should not give the impression that the judge was directing the jury to accept his views on the facts;
“(一)法官不可剝奪陪審團為事實方面唯一裁斷者的職權，因此在總結講辭中，法官的用語及評論不應使人覺得法官好像指示陪審團接納他自己對事實的意見或看法；

(b)The expressions and comments made by the judge in the course of the summing-up should not give the impression that the judge was making another speech for the Prosecution.”
(二)法官在總結講辭中採用的詞言及評論，不可使人覺得總結講辭好像是另一篇控方陳詞。”

The Court has to emphasize that when a trial judge sits together with the jury in a criminal case, he must deliver his summing-up in an accurate, comprehensive and fair manner.  In this regard, the Court reiterates the following passages at paras. 29-33 of the judgment of HKSAR v Zhu Jinni [2012] 4 HKLRD 444:
本庭需強調，主審法官會同陪審團審理刑事案件時向陪審團作出的指引必須正確、全面及公平。就此，本庭覆述上訴法庭在香港特別行政區訴朱金妮 [2012] 4 HKLRD 444案在判案書第29-33段作出的以下表述：

As this Court has repeatedly stressed, in a criminal trial conducted in the High Court, the judge and the jury play different roles.  The judge is the sole arbiter of law, whereas the jury is the sole arbiter of facts.  The jury must regard the judge’s directions on matters of law as inviolable rules and strictly follow them.  On the other hand, the judge should as far as possible leave it to the jury to make such decisions on factual issues as they consider appropriate.
本庭屢次強調，在高等法院刑事審訊，主審法官和陪審團扮演不同角色。主審法官是法律的唯一裁決者，而陪審團則是事實的唯一裁決者。陪審團必需視主審法官就法律問題上給他們的指引為金科玉律，要絕對遵從。主審法官亦應盡量放手，由陪審團就事實議題作出他們應（認）為合適的裁決。

When the judge sums up the facts of the case for the jury, he is certainly entitled to express his views on the facts, but in doing so he must exercise caution and restraint.  He must keep what he says in check as far as possible and avoid expressing too vigorously his own inclinations on factual issues.
在向陪審團總結案情時，主審法官當然有權就事實議題表達一些意見，但就事實議題表達意見時，主審法官必需慎重及克制地行事，並要盡量抑制，避免就事實議題過強表達自己個人傾向。

By reason of his function and position, the jury will very likely attach great importance to the views expressed by the judge.  If the judge expresses his strong inclinations on the factual issues, the effect on the jury is obvious.
主審法官的職能和地位極會令陪審團非常重視主審法官的意見。如主審法官就事實議題向陪審團表達自己強烈的傾向，對陪審團的影響是顯而易見的。

The merit of the jury system is that in a criminal trial, a certain number of lay citizens are able to make such collective decisions on factual issues as they consider appropriate, by drawing on their common sense and social experience.
陪審團制度的好處是在刑事案件中，由多名無專業知識的一般市民，就事實的爭議，根據他們的普通常識和社會經驗，作出他們認為恰當的整體裁決。

If the judge expresses to the jury his strong views and inclinations on factual issues, then not only he is usurping the function of the jury, but also he may cause a reasonable bystander to think that the defendant is not receiving a fair trial.”
如主審法官就事實爭議向陪審團表達其強烈的個人意見及傾向，則主審法官不但篡奪了陪審團的職能，更可能會令合理的旁觀者認為被告人面對的審訊不公平。”

The Court is of the view that as a whole, the summing-up of the trial judge had not met the standards of fairness and justice as required in law.
本庭認為，整體而言，原審法官的總結講辭未能達到法律所要求的持平及公正。

Conclusion
結論

After considering the circumstances of the case as a whole, the Court has come to the view that the directions by the trial judge to the jury on the case had not been sufficiently comprehensive, nor did it meet the standards of fairness and justice.  Under the said circumstances, the verdict of conviction reached against the Applicant is unsafe.
本庭已考慮過案件的整體情況。本庭認為原審法官就案件給予陪審團的指引不夠全面，亦不符合持平及公正的要求。在上述情況下，針對申請人的定罪裁決是不穩妥的。

Hence, the Court grants the Applicant leave to appeal against his conviction, and treating the hearing as the appeal proper, we allow the appeal and quash the conviction against him as well as the sentence.
因此，本庭批准申請人就定罪上訴，並視他的申請為正式上訴。本庭裁定申請人上訴得直，並撤銷針對他的定罪及判刑裁決。

In view of the fact that the offence of the present case was extremely serious, and the evidence against the Applicant was also very strong, the Court accepted the Prosecution’s application and ordered the case to be remitted to the Court of First Instance for retrial.   We also ordered that the Applicant shall continue to be remanded in custody, pending the retrial.
本案的控罪極為嚴重，而針對申請人的證據亦是強而有力的。因此，本庭接納控方的申請，下令案件要發還原訟庭重審。本庭同時下令申請人要繼續還押，等候重審安排。

Andy Hung, instructed by Tang, Wong & Chow, assigned by the Director of Legal Aid, for the Applicant
答辯人：由律政司高級檢控官黃俊賢代表。

Wong Chun Yin, Nicholas, Senior Public Prosecutor of the Department of Justice, for the Respondent
申請人：由法律援助署委派鄧王周廖成利律師行轉聘大律師孔慶碩代表。