Hon Wright, J. (giving the reasons for judgment of the Court):
原訟法庭韋毅志法官（闡述本庭之判案理由）：

The applicant was convicted after trial before McMahon J and a jury of a single charge of possession of a firearm. He was sentenced to undergo imprisonment for a period of 11 years. He sought leave to appeal that conviction. The applicant had earlier pleaded guilty to a further charge of possession of an offensive weapon in a public place: he was sentenced to a further four months imprisonment, of which two months was ordered to be served consecutively to the sentence on the first charge.
申請人被控一項管有槍械罪，在原訟法庭麥明康法官和陪審團席前受審，被判罪名成立，刑罰是11年監禁。他申請上訴許可以提出針對定罪的上訴。申請人較早時已承認另一項控罪，即在公眾地方管有攻擊性武器。就該項控罪他另外被判4個月監禁，其中兩個月須與首項控罪的刑罰分期執行。

On 15 July 2011 we dismissed the applicant’s application and indicated that we would provide our reasons in due course, which we now do.
2011年7月15日，我等駁回申請人的申請，並表示會稍後說明理由，以下就是本庭的判案理由。

It was the prosecution case that the applicant was seen driving his motor vehicle which he brought to a halt in Lei Cheng Uk Estate, Cheung Sha Wan, at around 9 p.m. on 4 February 2009. The applicant was intercepted after alighting the vehicle. The vehicle was searched. The firearm, a .38 calibre revolver, was found, wrapped in cloth, concealed inside the valance after the front offside wheel had been removed and the lining of the wheel arch moved aside.
控方案情指2009年2月4日晚上9時左右，警務人員看見申請人駕駛汽車並把汽車停在長沙灣李鄭屋邨。申請人下車後被截停。警務人員搜查該車。他們拿走右前輪，把車輪頂拱形罩的襯墊移到一旁，在裙緣裏找到一柄用布包着的點38口徑左輪手槍。

Once the cloth package had been discovered but before it had been opened to reveal the presence of the firearm the applicant was arrested and cautioned. In response to that caution the applicant replied “I have rowed with somebody. For fear that someone may take revenge, I got the gun for protection. I have no intention of hurting anybody.". The significance of that reply was, obviously, that it showed that the applicant knew that the package contained the firearm even before it had been opened.
警務人員一找到那用布包着的東西，尚未打開它看見裏面的手槍，便拘捕和警誡申請人。申請人在警誡之下回答：“我和某人爭吵。我怕有人會尋仇，所以用槍保護自己。我無意傷害任何人。”這一段回答的重要性顯然是它顯示那包東西還未打開，申請人已經知道裏面藏有手槍。

In due course, the applicant was interviewed twice under caution, one interview taking place between 3.02 a.m. and 3.21 a.m. the following morning, 5 February 2009, and the second taking place between 8.41 p.m. and 9.20 p.m. that same evening. In the course of each of those interviews the applicant made unequivocal admissions describing, amongst other things, how he had purchased the firearm for 3000 Remnimbi from a named person in the mainland; that person had subsequently delivered the firearm to his vehicle in Hong Kong whereafter he, the applicant, had concealed it inside the valance; he had made payment for it.
其後，申請人兩次在警誡之下與警務人員會面。第一次會面在翌日，即2009年2月5日，凌晨3時零2分至3時21分進行。第二次會面在同日晚上8時41分至9時20分進行。每一次會面進行期間，申請人都毫不含糊地承認和描述一些事情，包括他如何在內地從一個指名人士以3000元人民幣買了那手槍；後來那人把手槍送遞到香港，到申請人的汽車；然後申請人把它收藏在裙緣裏；及申請人已支付買槍的費用。

The applicant made a series of admissions pursuant to the provisions of s. 65C of the Criminal Procedure Ordinance as a result of which, as the judge correctly identified to the jury, the issue which fell for determination by the jury was whether they were satisfied that the applicant was in possession of the firearm, whether he had known that it was hidden inside his motor vehicle when he drove it to the point where it was searched. The judge was at pains to point out to the jury that the evidence in this regard came solely from the applicant's response to the caution and the two subsequent video recorded interviews and that the jury need to be satisfied of the credibility and reliability of the prosecution witnesses who testified in regard to the events surrounding those admissions.
申請人根據《刑事訴訟程序條例》第65C條承認了某些事情; 因此，正如主審法官正確地向陪審團解說，陪審團須要裁定的爭論點是他們是否信納申請人管有該手槍，和申請人把他的汽車駛到被警務人員搜查的地點時他是否知道該手槍藏在車內。主審法官詳盡地向陪審團指出這方面的證據全部來自申請人在警誡之下的回答，和其後進行的兩次錄影會面，以及陪審團須要決定各控方證人所說的和申請人作出的承認有關的事情的證供是否可信可靠。

It was put on behalf of the applicant, who elected not to give evidence, that he had not given the reply to the caution which was attributed to him but that he had simply signed what had been written down and that, whilst he had given the answers recorded in the two records of interview, those answers were untruthful. It was suggested on his behalf to the relevant prosecution witnesses that the applicant had behaved in this manner because he had been assaulted and threatened by police officers and had been the victim of oppressive conduct by them. He had earlier challenged the admissibility of the reply to the caution and the records of interview during voir dire proceedings: the judge had ruled them each to be admissible.
申請人選擇不作證。代表他的大律師指出他沒有在警誡之下作出據稱是他作出的回答，他只是在已經寫下的文字旁簽名；雖然他有作出記錄在那兩份會面紀錄的回答，但那些回答不是真話。代表他的大律師向有關的控方證人指出申請人是因為警務人員毆打和恐嚇他，及對他採用壓逼性手段，他才作出那些回答。申請人在審訊的較早階段曾反對控方把他在警誡之下的回答和他的會面紀錄呈堂。主審法官為此進行了裁定可否把它們接納為證物的程序，結果是主審法官裁定把它們接納為證物。

The judge repeatedly emphasised to the jurors the necessity of their being able to accept the evidence of the prosecution witnesses in regard to the circumstances of the making of the admissions by the applicant. Plainly, by their verdict, they were satisfied by that evidence.
主審法官已經重複向陪審團強調他們必須決定是否可以相信各控方證人所說的關於申請人在甚麼情況下承認有關事情的證供。既然陪審團的裁決是申請人罪名成立，他們顯然是信納各控方證人所說的關於這方面的證供。

The applicant was unrepresented before us. He had submitted a number of separate letters, together with some supporting documentation, in which he identified his complaints. Some are repetitive but there appeared to be 15 discrete complaints which may be distilled, as the respondent had done, into seven discrete areas.
申請人在我等席前是沒有律師代表。他分開數次呈交了幾封信，連同一些有關文件。他在信裏說出他的申訴。有些說話是重複的，但看來可以從他所說歸納出15點申訴；而這15點可以，如答辯人所做的，分為7方面。

We largely adopt that summary as follows:
我等大致上採納這個分類，現在把這7方面列出如下：

原審法官犯錯，因為沒有就申請人的精神狀況給予陪審團適當和足夠的指示；	1.	the judge erred in failing to give proper and adequate directions to the jury on the applicant's mental state;
1.

原審法官犯錯，因為沒有就如何處理辯方的專家證據給予陪審團正確指示；	2.	the judge erred in failing to direct the jury correctly on their approach towards defence expert evidence;
2.

沒有科學鑑證方面的證據證明申請人曾管有或接觸該手槍；	3.	there was no forensic evidence to prove that the applicant had been in the possession of or contact with the firearm;
3.

第二辯方證人以專家身分作證，但竟然不知道“腦癇症”這個病名；因該證人的“疏忽或刻意隱瞞”而導致申請人被誤判有罪；	4.	the second defence witness who testified as an expert witness was unaware of the term “epilepsy" as a result of which the applicant was wrongly convicted due to the “negligence or cover-up" of this witness;
4.

主審法官犯錯，因為沒有就“管有”的定義給予適當指示；	5.	the judge erred in failing to give proper directions on the definition of “possession";
5.

主審法官犯錯，因為他花了太多時間用“假設性的用詞去解釋及分析案中的種種問題”，令到陪審團沒有思考的空間，以至實際上簒奪了陪審團的角色；及	6.	the judge erred by spending too much time on “assumptive wordings to explain and analyse various issues in case" thereby leaving no room for the jury to think and, in effect, usurping the role of the jury; and
6.

主審法官犯錯，因為他無視這個情況，即如果第一次會面時所作的承認完全屬實，就無需進行第二次會面。	7.	the judge erred in ignoring the fact that had the admissions contained in the first interview been entirely true it would have been unnecessary to hold a second interview.
7.

There was no substance in any of the grounds: we deal, briefly, with each in turn.
上述各理由沒有任何一個有實質。我等會簡略地逐一處理。

Ground 1: failure to properly and adequately direct on the applicant's mental state.
理由1﹕沒有就申請人的精神狀況給予適當和足夠的指示。

The two medical witnesses were called on behalf of the appellant. One, a neurosurgeon, added little to the evidence testifying simply in regard to a concussion syndrome which he had diagnosed after a traffic accident in which the appellant had been involved in 2006. The judge reminded the jury that the evidence of this witness was that sometimes someone with this syndrome suffered poor concentration and might also become depressed. The judge directly and correctly told the jury that should they should take these factors into account when deciding where to place on the applicant’s admissions.
有關的兩名醫生證人是傳召來為申請人作證的。其中一名是神經外科醫生。他的證供沒有提供多少額外的資料。他的證供只是關於申請人的腦震盪綜合症；申請人在2006年遭到交通意外後，他診斷申請人患上此症。主審法官提醒陪審團該證人的證供是說有時患上此症的病人會注意力難以集中，而且可能會抑鬱。主審法官直接和正確地告訴陪審團他們決定如何處理申請人作出的承認時，須要把上述因素考慮在內。

The evidence of the second witness, a psychiatrist, was to the effect that he had been treating the applicant since 2001 for a bipolar affective disorder. He described this as a disorder which results in extremes of emotion which the judge drew to the attention of the jury. The judge also reminded the jury that they had seen the applicant's behaviour during the video recorded interviews and were able to assess for themselves whether the disorder described by the doctor manifested itself during those interviews or whether, given the existence of that disorder, they formed the view that the interviews were oppressive or might have affected the accuracy and truthfulness of the applicant’s answers. He told them that they "... would no doubt give the doctors’ evidence very close consideration".
第二名證人是精神科醫生。他的證供大意是說他從2001年起便治療申請人的躁狂抑鬱症。他描述這是一種精神失調，病人會有極端的情緒反應，而主審法官已提醒陪審團注意這點。主審法官對陪審團說他們已看過申請人在錄影會面時的表現，可以自行衡量申請人在會面時有沒有出現該醫生所說的精神失調；或者，鑑於申請人有這樣的失調，他們會不會認為會面具有壓逼性，或者會不會有可能影響申請人的回答的準確性和真實性。主審法官對陪審團說他們“…無疑須要很詳細考慮兩名醫生的證供”。

The judge dealt with this issue fully and left the jury under no misapprehension as to how they should have regard to this evidence.
主審法官已就這個爭論點給予充分指示，沒有使陪審團對應該如何考慮這方面的證供有任何誤解。

Ground 2: failure to direct the jury correctly on their approach towards expert defence evidence.
理由2︰沒有就如何處理辯方的專家證據給予陪審團正確指示。

To a large extent, this was an extension of Ground 1. The judge dealt with the jury's approach to expert evidence in general in standard terms. In any event, the applicant’s medical state was not disputed by the prosecution: its only relevance was whether it impacted upon the applicant’s state of mind and whether it had any effect on his participation in the interviews. We have already dealt with this issue.
這個理由在很大程度上是理由1的延伸。主審法官以標準詞句給予陪審團關於如何處理專家證據的一般指示。無論如何，控方沒有質疑申請人的健康狀況。申請人的健康狀況與本案唯一有關聯的是他的健康狀況有沒有影響他的思想狀態，及在申請人參與會面時對他有沒有任何影響。我等已經處理這個爭論點。

Ground 3: no forensic evidence to prove that the applicant had been in possession of or contact with the firearm.
理由3︰沒有科學鑑證方面的證據證明申請人曾管有或接觸該手槍。

Insofar as possession of the firearm was concerned, the judge correctly and fully directed the jury as to the elements about which they were to be sure before they were able to find that the applicant had been in possession of it. The mere fact that the appellant was not shown to physically have contacted the firearm does not prevent the appellant having been in possession of it. The absence of any such evidence was entirely neutral.
在管有該手槍方面，主審法官已經正確和充分地指示陪審團他們須要肯定案情具備哪些元素才可以裁定申請人管有該手槍。沒有證據證明申請人實際上接觸過該手槍，僅憑這一點並不表示申請人未曾管有該手槍。缺乏這方面的證據，這點完全是中性的。

Ground 4: the second defence witness who testified as an expert witness was unaware of the term “epilepsy" as a result of which the applicant was wrongly convicted due to the “negligence or cover-up" of this witness.
理由4︰第二辯方證人以專家身分作證，但竟然不知道“腦癇症”這個病名；因該證人的“疏忽或刻意隱瞞”而導致申請人被誤判有罪。

We had some difficulty with what was meant by this complaint. It seemed to stem from the fact that, attached to one of the applicant’s letters, was a document from Correctional Services Department which appeared to suggest that he has been assigned to a "Cutting" working party for a "Reason" against which appeared the word "Epilepsy". This was not an issue that ever saw the light of day at trial.
我等對應該如何理解這個申訴的含意，覺得有點困難。這個申訴的來源似乎是這樣的︰申請人的其中一封來信夾付一份懲教署的文件。看來該文件是說被告人被編派到的工作期數（Working Party）是做“Cutting”（切割），而這樣編派是有“原因”（Reason）的。在“原因”旁有“癲癇” （Epilepsy）這個詞。審訊時這個爭論點沒有提出過。

Ground 5: failure give proper directions on the definition of “possession".
理由5︰沒有就“管有”的定義給予適當指示。

As we noted in respect of Ground 3, the judge gave clear directions regarding the aspects about which the jury needed to be satisfied before they were able to conclude that the applicant had been in possession of the firearm. He did so upon more than one occasion. Those directions were couched in standard terms assisted by readily comprehensible illustrations.
我等在處理理由3時已指出主審法官已經給予清晰指示，說明有哪些方面陪審團是須要信納的才可以裁定申請人管有該手槍。主審法官不只一次給予這方面的指示。他以標準詞句表達這些指示，並提供容易明白的例子以幫助說明。

As noted in §4 above the applicant’s response to the caution at the scene at the time of arrest established his knowledge of the presence of the firearm inside the cloths: that disposed of the applicant’s oral submissions before us on the point of possession and his reference to the decision in HKSAR v JIM Fai CACC383/2002 (unreported, 15 April 2003).
上文第4段已經敍述申請人在現場被捕時在警誡之下的回答證明他知道該手槍是包在布裏的。這就解決了申請人在我等席前所作關於管有的口頭陳詞，和他引述的香港特別行政區 訴 詹輝 刑事上訴2002年第383號（沒有收錄在案例集，2003年4月15日）

Ground 6: too many “assumptive wordings” used by the judge thus leaving no room for the jury to think and, in effect, usurping the role of the jury.
理由6︰主審法官用了太多“假設性的用詞”，令到陪審團沒有思考的空間，以至實際上篡奪了陪審團的角色。

The judge made it quite clear that matters which fell within the domain of the jury were to be decided by the jurors alone. As is the practice of some judges, he illustrated particular points by way of analogy in order to facilitate comprehension of the point he was seeking to make. This is a permissible route for a judge to take. None of the illustrations by the judge was in anyway inappropriate.
主審法官已經清楚說明屬於陪審團範疇的事情應該只由陪審團決定。他的做法是有些法官都採取的，就是用比喻的方式說明他提出的某幾點，以幫助陪審團明瞭他想說的是甚麼。法官是可以這樣做的。他舉出的例子沒有一個有任何不適當之處。

Ground 7: had the admissions contained in the first interview been true the second interview would have been unnecessary.
理由7︰如果第一次會面時所作的承認屬實，就無需進行第二次會面。

The police were entitled, if they determined it to be necessary, to seek to interview the applicant further. The applicant, equally, was entitled to decline if he did not wish to participate in the second interview. He chose to do so. It is quite clear that additional information was obtained by the police during the second interview which had not been made available to them during the first.
如果警方認為有此需要，他們是有權嘗試和申請人進行再次會面。如果申請人不想參與第二次會面，他同樣有權拒絕會面。申請人選擇參與第二次會面。第二次會面裏，警方明顯是取得進一步資料，而這些資料是第一次會面時他們沒有得到的。

We were satisfied that there was no merit in any of the applicant’s grounds of appeal. The summing up was fair and well-balanced. The issue which the jury had to determine was straightforward. It was not reasonably subject to any criticism. Consequently the application was dismissed.
我等信納申請人的上訴理由沒有任何一個有道理。主審法官的案情總結是公平和適當地平衡了控辯雙方的論據和論點。陪審團須要決定的爭論點是簡明直接的。主審法官處理這個爭論點的方式沒有可以受到合理批評之處；因此，我等駁回申請。

Mr Ira Lui, Senior Public Prosecutor, Department of Justice, for Respondent.
答辯人︰由律政司高級檢控官雷芷茗先生代表。

Applicant in person.
申請人︰無律師代表。