Tang VP:
上訴法庭副庭長鄧國楨:

I agree with the judgment of Cheung JA and would grant leave to appeal to the applicant for the same reasons, treat the hearing of the application as the appeal proper, but dismiss the appeal.
本席同意張法官的判決及基於同樣的理由，本席批准申請人的上訴許可申請，並視申請為正式上訴，但駁回上訴。

Cheung JA:
上訴法庭法官張澤祐：

I agree with the judgment of Yeung JA dismissing the applicant’s appeal.
本席同意楊法官駁回申請人上訴的判決。

I will express my opinions on the applicant’s “burden of proof”.  The presumptions in section 47(2) of the Dangerous Drugs Ordinance only require the defendant to carry the evidential burden of proof.  He needs to adduce sufficient evidence to raise an issue, so that the judge is obliged to leave the issue to the jury’s decision: Bratty v A-G for the Northern Ireland [1963] AC 386.  The defendant’s burden in this regard is distinct from the “legal burden of proof” or “persuasive burden of proof”.
本席對申請人的「舉證責任」表達以下的意見。《危險藥物條例》第47(2) 條的推定只是需要被告人負起證據上的舉證責任 (evidential burden of proof)，他需要援引充分的證據以帶出一個爭論點，好讓法官把爭論點交由陪審團作決定: Bratty v A-G for the Northern Ireland [1963] AC 386。被告人就這方面所負的責任是有別於法律上的「舉證責任」(legal burden of proof) 或者游說式的「舉證責任」(persuasive burden of proof)。

In Hong Kong, the legal “burden of proof” in criminal cases is borne by the prosecution: AG v. Hui Kin Hong [1995] 5 HKPLR 100.  If the prosecution fails to satisfy the “legal burden of proof” in respect of the issues in dispute, the court shall find the defendant not guilty.
香港刑事案的控方是需負上證實控罪的法律上的「舉證責任」：AG v. Hui Kin Hong [1995] 5 HKPLR 100。若控方不能履行爭議的事項的「法律舉證責任」，法庭需判處被告人無罪。

The provision of section 47(2) only requires the defendant to adduce evidence to raise an issue for the court to address.  Hence, I am of the view that by electing to give evidence in his own defence, the applicant in this case has already satisfied this “burden of proof”.  The issue Judge Chan needs to address is whether the applicant knew the nature of the drugs in question.  The legal “burden of proof” in respect of this issue has all along been borne by the prosecution, which the prosecution has in fact already fully satisfied.
第47(2) 條的條文只是要求被告人提出證據以帶出一個爭議點讓法庭來解決，因此本席認為本案的申請人選擇作供自辯已經是滿足了這個「舉證責任」要求。陳法官所需要處理的爭議點是申請人是否知悉有關毒品的性質，這項議題法律上的「舉證責任」一直是控方，而控方其實已經充分履行了這項責任。

It is my view that even if Judge Chan has applied inappropriately the presumption in section 47(1) so that serious mistakes were made in the course of the hearing, this court can still dismiss the appeal by applying “the proviso”.
本席認為就算陳法官不適當地引用條例第 47(1) 條的推定，以致聆訊過程出現重大錯誤，本席認為本庭仍可以使用「但書」來駁回上訴。

The drugs involved in this case are 22.69 grams of cocaine.  The drug traffickers must have considered that they could profit from this consignment of drugs before engaging in this illicit activity.  In carrying out this illicit activity, it is unthinkable that Law Ching Yan (transliteration) would rashly ask the applicant to handle this consignment of drugs of considerable value without telling him that the contents of the parcel are dangerous drugs.  Law Ching Yan must obviously have trust in the applicant by asking him to make arrangements for the collection of the parcel.  If the applicant believed that the parcel he was going to collect merely contained game cartridges, there is absolutely no need for him to take such a circuitous approach by instructing an accomplice to collect the parcel whilst keeping him under observation during the process.  In these circumstances, a reasonable jury would no doubt presume that the applicant knew the parcel contained dangerous drugs, and he was one of the drug traffickers.
涉案毒品是22.69 克的可卡因，販運毒品的人士必定認為這批毒品是有利可圖才會進行這項非法勾當的。羅政忻在進行這項非法勾當時斷不會貿然將這批價值甚高的毒品交給申請人處理，而不告訴他郵包內的東西就是毒品。明顯地，申請人是獲得羅政忻信任才會被指派安排收取這郵包。若果如申請人以為他要拿取的郵包內只是載着遊戲機帶，他根本就不需要以這麼迂迴曲折的手法去指使另一名同黨收取郵包及在過程中一直監控着他。在這情況下，合理的陪審團是必然作出推論申請人是知悉郵包內藏有毒品的，而他是販運毒品的其中一名成員。

Yeung JA:
上訴法庭法官楊振權：

In May 2008, someone called Jason Chow mailed a parcel (“the parcel”) containing cocaine from Canada to Hong Kong through Federal Express.  The recipient of the parcel was Lam Hoi Fung (transliteration), and the address of the recipient was falsely given as Flat 1814, 18/F, Mei Yat House, Yat Tung Estate, Tung Chung, Hong Kong.  Lam Hoi Fung was at the time under 14 and resided at Tung Lung House, Tai Hang Tung estate.
2008年5月，一名叫Jason Chow的人士從加拿大透過聯邦快遞將一件載有可卡因的郵件（“該郵件”）寄來香港，收件人為林凱風，收件地址虛報為Flat 1814, 18/F, Mei Yat House, Yat Tung Estate, Tung Chung, Hong Kong。當時林凱風不足14歲，在大坑東邨東龍樓居住。

The parcel arrived at Hong Kong on 20 May 2008. An employee of Federal Express handed over the parcel for customs clearance. It was confirmed thereafter that there was inside the parcel 27.16 grams of crystallized substance containing 22.69 grams of cocaine.
該郵件在2008年5月20日抵港後由聯邦快遞的職員交予海關清關。其後該郵件被證實載有27.16克固體，內含22.69克可卡因。

Customs officer 98362 restored the parcel to its original state and resealed it, and then delivered the parcel to Lam Hoi Fung at the aforesaid false address posing as an employee of Federal Express, but nobody answered the door.  The parcel was subsequently sent to the service centre of Federal Express in Cheung Sha Wan for the recipient to collect.
關員98362將該郵件還原及再封口後，喬裝為聯邦快遞的職員，將郵件帶到上述虛報地址找林凱風，但沒有人應門。其後該郵件送往聯邦快遞在長沙灣的服務中心等候收件人收取。

Lam Hoi Fung collected the parcel on 21 May 2008 and was arrested by customs officers.  Shortly after his arrest, his mobile phone rang twice.  The caller ID revealed that the caller was Benz and his telephone number was 6688-0233. Based on the information provided by Lam Hoi Fung, customs officers immediately proceeded to the 7-11 store at the junction of Fuk Wing Street and Castle Peak Road, where they saw the applicant Poon Kiu Yu and Law Ching Yan chatting and arrested them.
2008年5月21日，林凱風提取了該郵件後，遭關員拘捕。在林凱風被拘捕後不久，他的手提電話曾響了兩次，來電顯示來電者為Benz，電話號碼為6688-0233。關員隨即根據林凱風提供的資料前往福榮街和青山道交界的7-11店鋪。關員發現申請人潘喬裕和羅政忻在場傾談並將他們拘捕。

Customs officers subsequently took Law Ching Yan to his residence in Kam Wah Building for a search, where they found a quantity of cannabis, two packets of soda powder, three packets of yellow crystallized substance and 107 plastic packets in the size of 12cm x 8 cm.
其後關員帶羅政忻前往金華大厦的住所搜查，結果搜到一些大麻，兩包梳打粉、三包黃色晶狀物體和107個12厘米乘8厘米的膠袋。

According to customs officer 9444, when he intercepted the applicant outside the 7-11 store at the junction of Fuk Wing Street and Castle Peak Road, the applicant did produce his identity card, but appeared to be taken aback.  He revealed under caution that he knew Lam Hoi Fung and Law Ching Yan, and admitted having just made two telephone calls to Lam Hoi Fung.
據關員9444所稱，當他在福榮街和青山道交界的7-11店鋪外截查申請人時，申請人有出示身份證，並表現愕然。在警誡下，申請人表示認識林凱風和羅政忻，亦承認剛剛打了兩次電話給林凱風。

At a video-recorded interview held subsequently, the applicant told customs officers that some time before the incident, he was asked by Ah Ken, a friend he had known for just over a month, to collect something sent to Ah Ken from abroad, as Ah Ken was too busy to collect it himself.  Ah Ken also promised to give him 1,000 dollars as a reward, but as he was engaged in work, he therefore asked Lam Hoi Fung to perform the task instead.  The applicant indicated that Ah Ken had obtained from him the name and identity card number of Lam Hoi Fung.
其後在錄影會面時，申請人向關員表示案發前有一名他認識個多月的朋友阿Ken對他說有人在外國寄了些東西給他，但自己沒有空故要求申請人替他去收取。阿Ken表示會給申請人1,000元酬勞。申請人因為有工作，故要求林凱風代勞。申請人表示亞Ken曾有向他取得林凱風的姓名及身份證號碼。

The applicant went on to say that on 20 May 2008, Ah Ken told him to instruct Lam Hoi Fung not to go to the Tung Chung address to collect the parcel, but instead should telephone the express services company to make other arrangements.  Subsequently, Lam Hoi Fung made arrangements with the company to collect the parcel at the Cheung Sha Wan service centre of Federal Express.  Eventually, the applicant arranged with Lam Hoi Fung to go to the Cheung Sha Wan service centre together to collect the parcel.  When the applicant was in the vicinity of the service centre, he received a telephone call from Ah Ken and was told to wait for him.  When Ah Ken arrived, the two of them entered a restaurant where they waited for Lam Hoi Fung.  They were arrested by customs officers when they left the restaurant.
申請人續稱在2008年5月20日，亞Ken吩咐申請人指示林凱風不要前往東涌地址收取郵件，但要打電話去速遞公司另作安排。其後，林凱風和速遞公司安排在聯邦快遞長沙灣服務中心收取郵件。最終申請人和林凱風相約一起前往長沙灣服務中心收取郵件。去到服務中心附近時，阿Ken打電話給申請人要申請人等他。阿Ken出現後，他們就進入餐廳等候林凱風，但離開時即被關員拘捕。

The applicant said that after meeting up with Ah Ken, he instructed Lam Hoi Fung to go alone to the service centre to collect the parcel.  The applicant claimed that Ah Ken had described the parcel as very important, but without specifying what it was.  He was not surprised by Ah Ken’s offer of 1,000 dollars to him as a reward, as Ah Ken appeared to be well off and always bought him drinks.
申請人表示和阿Ken會合後，他指示林凱風單獨前往服務中心收取郵件。申請人聲稱阿Ken有說過郵件很重要，但沒有表明是甚麼，而他對阿Ken願意給他1,000元酬勞亦不覺奇怪，原因是阿Ken表現富有，亦常請他飲酒。

The applicant alleged that Ah Ken had said he was not free, but suddenly turned up on the day of the incident, and asked immediately after seeing him whether the parcel had been collected.
申請人聲稱阿Ken曾說過無空，他事發當天又突然出現，並在見面後立刻問他是否已取得郵件。

The applicant also indicated that it was Ah Ken who called him up on each occasion, and he did not store Ah Ken’s telephone number in his cell phone.  The applicant claimed that he had never seen the parcel in question, nor did he know what it was.
申請人亦表示每次都是阿Ken打電話給他，而他亦沒有將阿Ken的名字收錄在電話內。申請人指自已沒有見過涉案郵件，亦不知它是甚麼東西。

Due to the incident mentioned above, the applicant, Lam Hoi Fung and Law Ching Yan were jointly charged with the offence of trafficking in 27.16 grams of crystallized substance containing 22.69 grams of cocaine.  They all denied the charge.
上述事件導致申請人，林凱風和羅政忻一起被控販賣該郵件內所載的27.16克固體，內含22.69克可卡因罪，他們都否認控罪。

They were all convicted after trial in the District Court by Judge Stanley Chan, and the applicant was sentenced to five years’ imprisonment.
經審訊後，區域法院陳廣池法官裁定他們全部罪名成立，並判處申請人入獄5年。

The applicant had applied for leave to appeal against both conviction and sentence, but abandoned on 5 August 2009 his application for leave to appeal against sentence, which the court dismissed accordingly.  Now I only need to deal with his application for leave to appeal against conviction.
申請人曾就定罪及判刑都提出上訴許可申請，但在2009年8月5日放棄就判刑的上訴許可申請，該申請亦被撤銷。本席 只需處理申請人就定罪的申請。

The Applicant’s Defence
申請人的答辯理由

The applicant basically did not dispute the prosecution’s case against him, he also agreed that he gave the record of interview voluntarily.  He only wanted to prove during his cross-examination of the prosecution witness that at the time of his arrest, he had on his person 292 dollars, a mobile phone, a Hang Seng Bank ATM card, a game card and an identity card etc.
申請人對控方指控他的證據基本上全無異議，他亦同意會面記錄內容是他自願作出的。在盤問控方證人時，申請人只是想證明被拘捕時，他身上有292元，一部手提電話、一張恆生銀行提款卡、一張遊戲卡和身份證等物件。

The applicant gave evidence in his own defence.  He stated that he had known Law Ching Yan for over a month before the incident, but did not know what his occupation was.  He only got the impression that Law was well-off and kind to others, because they had had drinks together on three or four occasions and every time Law volunteered to foot the bills.
作供自辯時，申請人表示案發時認識了羅政忻個多月，但不清楚他的職業，只是感覺到他富有及好人事，原因是在三、四次飲酒時，羅政忻都主動付賬。

The applicant stated that two weeks before the incident, Law Ching Yan asked him to collect a parcel, but he refused on the ground that he was busy.  Law Ching Yan later offered a reward, the applicant then sought Lam Hoi Fung’s assistance and promised to pay him 1,000 dollars.
申請人指案發前兩星期，羅政忻要求他去拿取一件郵包，但申請人拒絕，指自己沒有空。其後，羅政忻提出支付酬金，故申請人找來林凱風幫忙，並表示會給他1,000元。

The applicant said he believed the parcel contained game cartridges mailed from abroad, but he had no idea why Law Ching Yan did not contact Lam Hoi Fung direct.
申請人表示以為郵包只是由外國寄來的遊戲機帶，但不知悉為何羅政忻不直接聯絡林凱風。

The applicant said he was woken up by Law Ching Yan’s call on the day of the incident, and was told that the parcel had arrived in Hong Kong according to the results of the enquires made online.  The applicant also stated that Lam Hoi Fung had arranged with the express services company to collect the parcel at the Cheung Sha Wan service centre at 2:30 pm.  He told Lam Hoi Fung to go alone to collect the parcel as he was in a hurry.  The applicant stressed that the parcel was Law Ching Yan’s and it was collected by Lam Hoi Fung.  He admitted that during the time when he was waiting for Lam Hoi Fung together with Law Ching Yan in a restaurant, he telephoned Lam Hoi Fung twice in the span of several minutes.  He did so because Law Ching Yan wondered why it took Lam Hoi Fung so long to come and was a bit anxious.
申請人指案發當天羅政忻打電話弄醒他並說經上網查詢知悉郵包已抵港。申請人亦指，林凱風曾和速遞公司相約在下午2時半前往長沙灣服務中心收取郵包，但因為自己趕時間故囑咐林凱風個人前往收取郵包。申請人強調郵包屬於羅政忻而林凱風則負責提取郵包。申請人承認和羅政忻在餐廳等候林凱風期間，他相隔數分鐘便打了兩次電話給林凱風，原因是羅政忻對林凱風這麼久仍未回來，感到奇怪，亦有點焦急。

The applicant stressed that he did not know that the parcel contained dangerous drugs, he was “hoodwinked” and hence was dumbfounded when he was intercepted by customs officers.
申請人強調不知道郵包藏有毒品，而自己是被人“整蠱”，故被關員截查時，感到愕然。

The applicant said Law Ching Yan did not know Lam Hoi Fung, and Lam Hoi Fung had provided the name of another person surnamed “Shi”.  He stressed that the 1,000 dollars he promised Lam Hoi Fung was to be paid by Law Ching Yan.  He had also provided information of the person surnamed “Shi” to Law Ching Yan, but Law indicated that the parcel would be mailed to Lam Hoi Fung.
申請人指羅政忻並不認識林凱風，而林凱風曾提供另一姓史人士的名字。申請人強調他答應給林凱風的1,000元，由羅政忻負責支付，他亦有將姓史的資料提供給羅政忻，但羅政忻表示郵包會寄給林凱風。

The applicant said that he was too busy to collect the parcel and so he had to give up the reward of 1,000 dollars. Given that the parcel was registered with Lam Hoi Fung as the recipient, the applicant was put in an awkward situation when Lam Hoi Fung expressed reluctance to go and collect the parcel.  He urged Lam Hoi Fung not to change his mind as he had promised Law Ching Yan that the parcel would be collected.  Eventually Lam Hoi Fung agreed to collect the parcel.
申請人指自己沒有空，故放棄賺取1,000元而由於郵包以林凱風登記為收件人，所以當林凱風說不想去收取郵包時，令他感到為難。申請人強調自已答應了羅政忻，故要求林凱風不要變卦，而最終林凱風亦同意前往收取郵包。

The applicant agreed that he had not mentioned Lam Hoi Fung’s age to Law Ching Yan, and Law Ching Yan also did not request to know Lam Hoi Fung’s address.  The applicant said he wrote down the names of Lam Hoi Fung and the person surnamed “Shi” and their identity card numbers on a piece of paper and gave it to Law Ching Yan.  He did not write down any addresses.
申請人同意他沒有向羅政忻說及林凱風的年紀，而羅政忻亦沒有要求知道林凱風的地址。申請人表示他是將林凱風及姓史的名字和身份證號碼抄在紙上交給羅政忻，但他並沒有寫下任何地址。

The applicant said Law Ching Yan and Ah Ken were the same person, and he sought Lam Hoi Fung’s assistance in collecting the parcel for Law Ching Yan as he knew that Lam Hoi Fung was always short of money.
申請人指羅政忻就是阿Ken，而他知道林凱風平時沒有錢，故找他幫忙，協助羅政忻收取郵包。

The applicant stressed that he sought Lam Hoi Fung’s assistance because he himself was engaged in work and did not know whether he could spare the time for the collection of the parcel.  He also stressed that it was Law Ching Yan who made arrangements for the parcel to be redirected to the Cheung Sha Wan service centre.
申請人強調找林凱風協助，因為自己有工作，不知悉是否可以安排時間提取郵包。申請人亦強調是羅政忻安排將郵包轉致長沙灣服務中心的。

The Evidence of Law Ching Yan
羅政忻的證供

Law Ching Yan also gave evidence in his own defence.  He stated that he was instructed by a person nicknamed “Ko Lo” to collect some liduokayin, a legal chemical substance.  He would then pass it on to someone else and wired the money received from the transaction to “Ko Lo”.
羅政忻亦有作供自辯，他表示是一花名“高佬”的人指示他去收取一些合法的化學品 – 利多卡因，收到後轉交他人並將收取到的交易款項電滙給“高佬”。

Law Ching Yan said he approached the applicant directly, asking him to get the assistance of a “young lad”.  He indicated to the applicant that the person should preferably be someone who did not know him and had not seen him before, and the applicant could deal with the reward of 1,000 dollars as he liked.
羅政忻指是自己直接接觸申請人，要他找一名“靚仔”協助。羅政忻向申請人表示最好找一名未見過他，亦不認識他的人，而他付出的1,000元則由申請人自行處理。

Law Ching Yan said he and the applicant arranged to meet at a MTR station on the day of the incident, and the applicant was to pretend that he did not know him.  Subsequently, when he saw the applicant and Lam Hoi Fung, he instructed the applicant over the telephone to tell Lam Hoi Fung to collect the parcel and then wait outside a restaurant.  He told the applicant that he would meet up with him only after Lam Hoi Fung had left.  Subsequently, he also instructed the applicant to telephone Lam Hoi Fung to inquire of him whether he had collected the parcel.
羅政忻指案發當天和申請人相約在地鐵站等候，而申請人扮不認識他。其後他看見申請人和林凱風後，用電話指示申請人叫林凱風去收取郵包而申請人則在一酒樓門前等候，當林凱風離開後，他才和申請人會合。其後，他亦有指示申請人打電話給林凱風，查問他是否已收到郵包。

Law Ching Yan also said he had asked the applicant for his address, intending to make him the recipient of the parcel, but the applicant declined.
羅政忻亦表示曾問過申請人的地址，希望由他代收郵包，但申請人不願意。

The Ruling of the Trial Judge
原審法官的裁定

The trial judge held that the applicant served as a go-between for Law Ching Yan and Lam Hoi Fung by passing on Law Ching Yan’s instructions to Lam Hoi Fung for him to carry out and would share the reward of 1,000 dollars with Lam Hoi Fung.
原審法官認定申請人是羅政忻和林凱風的橋樑，負責將羅政忻的指示交由林凱風執行，並會和林凱風一起分攤1,000元的酬勞。

The trial judge also held that on the day of the incident, the applicant did assist Lam Hoi Fung in collecting the parcel from the Cheung Sha Wan service centre.  He had also arranged to meet Law Ching Yan, who would not see Lam personally, but would follow Lam and the applicant and keep them under surveillance.
原審法官認定案發當天，申請人有協助林凱風到長沙灣速遞中心收取郵包，而他亦有和羅政忻相約會面，但羅政忻不會和林凱風見面，只會跟隨他們，作出監視。

The trial judge rejected the applicant’s plea of innocence and held that he acted as a go-between and got a young lad to collect the parcel upon Law Ching Yan’s instructions, and would receive 500 dollars as his reward.
原審法官否定申請人無罪的申述。原審法官認定申請人是接獲羅政忻的指示，作為中間人，找一名年青小伙子去收取郵包，更會收取500元酬勞。

The trial judge stressed that the applicant had time to spare to collect the parcel together with Lam Hoi Fung and that there was no reason why the applicant could not do so.  If the collection of the parcel was aboveboard and honest, the applicant should have collected it personally, instead of adopting such a circuitous and deceptive approach.
原審法官強調申請人是有時間亦沒有理由不和林凱風一起去收取郵包。如果收取郵包是光明正大行為，申請人應會親自去收取郵包，而無須採用曲折隱瞞的方法去收取郵包。

The trial judge held that although there was no direct evidence proving that the applicant had possession of the parcel and knew that it contained dangerous drugs, section 47(1), 47(2) and 47(3) were all applicable to the applicant and could prove his guilt.
原審法官認定雖然沒有直接證據證明申請人管有該郵包和知悉郵包內藏毒，但《危險藥物條例》第47(1)、47(2)及47(3)條都適用於申請人，可以證明他的罪行。

The trial judge held that the applicant had “constructive possession” of the parcel in question and the presumption in section 42(2) also applied.  He also held that the applicant knew the parcel contained dangerous drugs, and that he was an accomplice of Law Ching Yan and Lam Hoi Fung.  The applicant was therefore convicted of the offence of Trafficking in Dangerous Drugs.
原審法官裁定申請人有“法律構定管有”該郵包而第42(2)條的推定亦適用。原審法官裁定申請人知悉郵包內藏毒，和羅政忻及林凱風是共犯，原審法官因此裁定申請人販毒罪罪名成立。

Grounds of Appeal
上訴理由

The two barristers representing the applicant, Charles Chan and William Hui, did not dispute the trial judge’s finding of fact, but submitted that the trial judge erred in his application of the presumption in section 47 of the Dangerous Drugs Ordinance.  They submitted that if the trial judge had not erred in that respect, he might have accepted the applicant’s explanation given in his own defence showing that he did not know the parcel contained dangerous drugs.
代表申請人的兩名大律師，陳永豪和許祈峰就原審法官作出的事實裁決不表異議，但他們指原審法官就《危險藥物條例》第47條的推論達成的結果有犯錯，而假若原審法官沒有犯錯，他可能會接受申請人自辯的解釋，顯示他對該郵包內藏毒並不知情。

Mr Chan stressed that according to section 47(1), the “presumption of the possession of dangerous drugs” could only be made when there was “physical possession” of anything containing or supporting a dangerous drug or the keys of the containers involved, and the “constructive possession” of anything containing or supporting a dangerous drug or the keys of the containers involved could not lead to the presumption of the possession of the dangerous drugs contained in those things or the containers involved.
陳大律師強調根據第47(1)條“管有危險藥物的推定”只會在“實質管有”容載或支承危險藥物的物件或有關盛器的鑰匙時才能作出，而“法律構定管有”容載或支承危險藥物的物件或有關盛器的鑰匙不能導致管有該些物件或盛器內所載危險藥物的推論。

Mr Chan asserted that the trial judge only held that the applicant had “constructive possession” as opposed to “physical possession” of the parcel in question; and therefore he could not find the applicant in possession of the cocaine contained in the parcel by relying on section 47(1).
陳大律師力稱原審法官裁定申請人只是“法律構定管有”該郵件，而非“實質管有”該郵件，故不應根據第47（1）條裁定申請人管有該郵件所載的可卡因。

Discussion
討論

Section 47 of the Dangerous Drugs Ordinance stipulates that:
《危險藥物條例》第47條列明：

“(1)Any person who is proved to have had in his physical possession –
“(1)任何人經證明實質管有-

anything containing or supporting a dangerous drug;
任何容載或支承危險藥物的物件；

the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug,
任何容載危險藥物的行李、公文包、盒子、箱子、碗櫃、抽屜、保險箱、夾萬或其他類似的盛器的鑰匙；

(2)Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug.
(2) 任何人經證明或被推定管有危險藥物，則直至相反證明成立為止，須被推定為已知悉該藥物的性質。

Section 47(1) provides that any person who has in his physical possession anything containing a dangerous drug or the keys of those containers shall be presumed to have had such drug in the container in his possession.  Section 47(2) provides that any person who is proved or presumed to have had a dangerous drug in his possession shall be presumed to have known the nature of such drug.  Of course, both presumptions mentioned above can be rebutted.
《危險藥物條例》第47（1）條表明當任何人實質管有容載毒品的盛器或該些盛器的鑰匙，則法律推定他管有盛器所載的毒品。第47(2)條則表明任何人經證明或被推定管有毒品，則會被推定知悉毒品的性質。當然上述兩項的推定都是可被推反的推論。

In law, the possession of dangerous drugs falls into three categories:
法律上，管有毒品形式有三類：

(1)Physical possession, for example, where dangerous drugs were found on someone’s person or in the articles carried by him, the drugs found on his person or in the articles carried by him are in that person’s physical possession.
實質管有，例如毒品是在某人身上，或其攜帶的物件內搜出，則其身上或其攜帶物件內的毒品是在該名人士的實質管有下。

Presumed possession, which is triggered by section 47(1) of the Dangerous Drugs Ordinance.
推定管有（presumed possession）是根據《危險藥物條例》第47(1)條所引發的。

The “constructive possession” referred to by the trial judge, which differs from “presumed possession”.  If any person is aware of the existence and nature of a certain article and can at the same time exercise control over it, then even if the article is not in his physical possession, it is still in his “constructive possession”.
原審法官所指的“法律構定管有”(Constructive possession)，和推定管有不同。當任何人知悉某物件的存在及性質，而同時對該物件有控制或支配權，則雖然物件並非在其實質管有下，物件是在其“法定構定管有”(Constructive possession)下。

In his reasons for verdict, the trial judge said that section 47(1), 47(2) and 47(3) were all applicable to the applicant, but he also stated expressly that the applicant had “constructive possession” of that parcel.  The trial judge mentioned specifically that “the 2nd defendant (the applicant) instructed the 1st defendant (Lam Hoi Fung) to collect the parcel, and acted as a go-between and issued orders as to the place and time of the collection of the parcel.  There is no reason why the 1st defendant had to rush to the express service centre to collect the parcel, nor is there any reason why the 2nd defendant did not collect the parcel together with the 1st defendant.”
在其裁決理由書，原審法官雖然指《危險藥物條例》第47(1)、47(2)和47(3)條都適用於申請人，但同時表明申請人是對該郵包有“法定構定管有”(Constructive possession)。原審法官特別強調“第二被告（申請人）指示第一被告（林凱風）去拿取郵包，無論是拿取郵包的地點和時間，都是由作為中間人的第二被告人發號施令，第一被告根本沒有趕去速遞中心收件的理由，而第二被告亦沒有理由不和第一被告一起去收件”。

In fact, it is an undisputed fact that the applicant knew all along that the parcel was sent to Hong Kong by courier service.  He also acted upon Ah Ken’s instructions by telling Lam Hoi Fung to make telephone enquiries with the courier service company and not to go to the false address in Tung Chung to collect the parcel.  Subsequently, after learning that the parcel was kept at the Cheung Sha Wan service centre of the courier services company, he arranged with Lam Hoi Fung to go there to collect the parcel.  After meeting up with Lam Hoi Fung, the applicant instructed Lam Hoi Fung to go alone to the service centre to collect the parcel, while he and Law Ching Yan waited nearby.  He had also telephoned Lam Hoi Fung twice inquiring about the situation while he was waiting.
事實上，無爭議的證據顯示申請人由始至終知悉該郵件由外國速遞到香港。他亦是根據阿Ken的指示，叫林凱風打電話向速遞公司查詢及不要去東涌的虛報地址收取該郵包。其後知悉該郵包存放在速遞公司長沙灣服務中心時，他和林凱風相約前往收取。和林凱風會合後，申請人更指示林凱風單獨前往服務中心收取郵件，而他則和羅政忻在附近等候。在等候期間，他更兩次打電話給林凱風查詢情況。

The aforesaid undisputed evidence shows that the applicant not only knew the existence and movements of the parcel, but also exercised absolute control and dominion over it.  Hence, the parcel must be in the applicant’s “constructive possession”.
上述無爭議證據顯示申請人不但知悉該郵包的存在及去向，更對其有絕對控制及支配權，該郵包必然是在申請人的“法律構定管有”(Constructive possession)下。

The applicant had in his possession a parcel with the dangerous drug cocaine inside, not anything containing or supporting cocaine, still less the keys of any containers of cocaine.  Hence, the prosecution does not need to rely on the “presumed possession” provided for in section 47(1) of the Dangerous Drugs Ordinance to prove that the applicant was in possession of the cocaine involved.
申請人管有的就是載有可卡因毒品的郵包而非容載或支承可卡因毒品的物件，更非容載可卡因盛器的鑰匙，因此控方無須倚賴《危險藥物條例》第47(1)條的“推定管有”(Presumed Possession)，證明申請人管有涉案的可卡因毒品。

According to section 47(2) of the Dangerous Drugs Ordinance, when the applicant is in possession of the parcel containing cocaine, he shall be presumed to have known the nature of such drug.  Of course, the purpose of the section 47(2) presumption is just to impose the “evidential burden of proof” on the defendant, requiring him to adduce evidence to show that he has no knowledge of the nature of the drug in his possession, while the prosecution is still obliged to prove that the defendant knows the nature of the drugs: HKSAR v Hung Chun Wa & Another [2006] 3 HKLRD 841.  If the defendant’s explanation that he had no knowledge is accepted, or if his explanation creates any reasonable doubts, the defendant must be acquitted.  Even if the defendant’s explanation is totally rejected, provided that there are any doubts in the prosecution evidence regarding the defendant’s knowledge, the defendant must still be acquitted.  The burden of proof is upon the prosecution. The prosecution is obliged to prove that the defendant has knowledge of the nature of the drug.
當申請人管有載有可卡因毒品的郵包時，根據《危險藥物條例》第47(2)條，他須被推定為已知悉該毒品的性質。當然第47(2)條推定的目的只是施加在被告人身上證據上的舉證責任“evidential burden of proof ”，要被告人提供證據顯示他對其管有毒品的性質並不知情，控方仍需證明被告人對毒品的性質是知情的（見HKSAR v Hung Chan Wa & Another [2006] 3HKLRD 841案）。如被告人不知情的解釋獲接納，或其解釋導致任何合理疑點，被告人需被判無罪。即使被告人的解釋遭全盤否定，但如在被告人是否知情一事上，控方的證據有任何疑點，被告人仍需被判無罪，原因是舉證責任仍在控方。控方需證明被告人對毒品的性質是知情的。

Since the applicant in this case is in “constructive possession” of the cocaine inside the parcel, section 47(2) of the Dangerous Drugs Ordinance thus imposes upon him an evidential burden of proof.
在本案申請人“法律構定管有”該郵包內的可卡因毒品，因此《危險藥物條例》第47(2)條會施加在他身上證據的舉證責任。

Although the applicant gave evidence in court, his evidence was totally rejected by the trial judge.  His evidence also failed to create any doubts showing that he had no knowledge of the nature of the dangerous drugs cocaine in the parcel.  Mr Chan did not raise any disputes in that regard.
雖然申請人有作供，但他的證供遭原審法官全盤否定。他的證供亦沒有引發出任何疑點，顯示他對該郵包內可卡因毒品的性質不知情。對此，陳大律師亦不表異議。

According to the applicant, Law Ching Yan had promised to give him 1,000 dollars as a reward for collecting the parcel.  As the trial judge had rightly pointed out, the reward of 1,000 dollars for such a simple task as collecting a parcel was definitely a very attractive way of making quick money, which under normal circumstances would not happen at all.  And if the applicant had not known the nature of the contents of the parcel, he would not have “given away” to Lam Hoi Fung the whole or half of the easy money of 1,000 dollars.
根據申請人所稱，羅政忻曾答應給他1,000元的酬勞去收取郵件。誠如原審法官正確指出，1,000元作為收取郵包這麼簡單工作的酬勞，絕對是很有吸引力的賺取快錢的方法。正常的情況，給予重酬去收取郵包的狀況根本不會發生，而假如申請人不是知道郵包所載物品的性質，他更不會將這麼容易賺取的1,000元的全部或一半“轉送給”林凱風。

I cannot disregard the undisputed evidence showing that the applicant was essentially staying with Lam Hoi Fung throughout the incident, giving him instructions and observing his every move in the collection of the parcel.  As the trial judge had stressed that if the act was aboveboard and honest, the applicant would not have adopted such a circuitous and deceptive approach to collect the parcel.  There is nothing in the evidence providing any plausible reasons which explain why the applicant displayed such extremely unusual behaviour.  According to the prosecution case and since the applicant failed to give any plausible reasons to explain, rebut or overturn the prosecution’s evidence, a reasonable and irresistible inference to be drawn must be that the applicant all along knew the parcel contained dangerous drugs.
本席不能忽視無爭議的證據顯示申請人基本是全程和林凱風一起，指示及監控他提取該郵包的一舉一動。誠如原審法官強調，如果申請人的行為光明正大，他不會用這麼曲折隱瞞的方法去收取一件郵包。證據亦沒有顯示有任何其他可信的理由去解釋申請人極不尋常的行為。根據控方案情及在申請人沒有提出可信的理由去解釋，反駁或推反控方的證據時，一項合理及無可抗拒的推論必然是申請人由始至終都知悉該郵包內載有毒品。

Although the trial judge had mentioned section 47(1) of the Dangerous Drugs Ordinance, he in fact did not need to rely on the presumption provided for in that section.  A careful analysis of the trial judge’s reasons for verdict reveals that the applicant was held to be in “constructive possession” of the parcel, and the irresistible inference is that the applicant knew the parcel contained dangerous drugs.
雖然原審法官有提及《危險藥物條例》第47(1)條，但事實上原審法官無需依賴該條款的推論，而細心分析，原審法官的裁決理由書顯示原審法官是裁定申請人是對該郵件有“法律構定管有”(constructive possession)，而不可抗拒的推論亦是申請人知悉該郵件內載有毒品。

Mr Chan submitted that if the trial judge had not made the mistake relating to section 47(1) of the Dangerous Drugs Ordinance, he might have accepted the applicant’s account that he believed that the parcel contained game cartridges.  I disagree.  If the applicant believed that the parcel contained game cartridges, he definitely would not handle the parcel in the suspicious manner mentioned above.  It is absolutely correct for the trial judge to reject the applicant’s explanations.
陳大律師指如原審法官沒有就《危險藥物條例》第47(1)條犯錯，他可能會接納申請人指以為該郵包是遊戲機帶的說法。本席不認同，如申請人以為郵包是遊戲機帶，他絕對不會以上述可疑方法處理該郵包。原審法官不接納申請人的解釋是絕對正確的。

The applicant was in “constructive possession” of the cocaine involved in this case, and had failed to discharge the burden of proof placed on him by the Dangerous Drugs Ordinance to rebut the presumption.  The irresistible inference is that he knew the nature of the contents of the parcel were dangerous drugs.  There are not any doubts which conflict with the inference.  Taking into account the quantity of the cocaine involved and the fact that it was delivered to Hong Kong from abroad through an courier services company, the applicant must have been trafficking in dangerous drugs or possessing the dangerous drugs for the purpose of trafficking.
申請人“法律構定管有”涉案的可卡因毒品。申請人不能成功推反《危險藥物條例》施加在他身上的舉證責任，不可抗拒的推論是申請人對郵包內藏毒品的性質是知情的，亦沒有任何疑點和該推論有任何衝突。考慮到涉案可卡因毒品的份量及是透過速遞公司由外國運抵香港，申請人必然是販運毒品或將毒品用作販運用途。

The trial judge’s misunderstanding over section 47(1) of the Dangerous Drugs Ordinance did not affect his decision of convicting the applicant.  I can see nothing unsafe and unsatisfactory about the decision to convict the applicant of trafficking in dangerous drugs.  The trial judge’s mistake about section 47(1) of the Dangerous Drugs Ordinance had actually no substantive effect on the verdict in this case.  Hence I am of the view that this court does not need to invoke the “proviso”.  I dismiss the applicant’s application in relation to his conviction.
原審法官對《危險藥物條例》第47(1)條的誤解，不影響他作出裁定申請人有罪的決定。對申請人被裁定販運毒品罪罪名成立，本席不覺有任何不穩妥之處。原審法官就《危險藥物條例》第47(1)條所犯的錯誤，對案件的裁決並無實質的影響，故本席認為法庭無需使用「但書」。本席駁回申請人就定罪的申請。

Tang VP:
上訴法庭副庭長鄧國楨:

By a majority, we grant the applicant’s application for leave to appeal but invoke the “proviso”. We dismiss his appeal unanimously.
本庭以大多數決定，批准申請人的上訴許可申請，但行使「但書」。本庭一致駁回申請人的上訴。

Ms Mary Sin, Senior Assistant Director of Public Prosecutions, Department of Justice, for the respondent.
答辯人：由律政司高級助理刑事檢控專員冼佩霞代表。

Mr Charles Chan and William Hui, instructed by Ivan Tang & Co., for the applicant
申請人：由鄧耀榮律師行轉聘陳永豪大律師及許祈峰大律師代表。