Hon Chu JA (giving the reasons for judgment of the Court):
上訴法庭法官朱芬齡頒發上訴法庭判案理由書：

The applicant was charged with one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong.  The drugs involved were 899.16 grammes of a mixture containing 495.68 grammes of heroin hydrochloride and 119.70 grammes of monoacetylmorphine hydrochloride.
申請人被控一項販運危險藥物罪，違反《危險藥物條例》（香港法例第134章）第4(1)(a)及(3)條。涉案藥物為內含495.68克海洛英鹽酸鹽及119.70克乙酰嗎啡鹽酸鹽的899.16克混合劑。

The applicant pleaded not guilty and was tried before Tong J sitting with a jury.  On 11 July 2011, the jury found her guilty by a majority of 5:2.  On 19 July 2011, she was sentenced to 18 years’ imprisonment.
申請人否認控罪。案件在高等法院原訟法庭法官湯寶臣席前連同陪審團進行審訊。2011年7月11日，陪審團以5:2比數裁定申請人罪名成立。2011年7月19日，申請人被判處監禁18年。

The applicant applied to this Court for leave to appeal against both conviction and sentence.  Subsequently, on 14 February 2012 she abandoned her application for leave to appeal against sentence.  As to her application for leave to appeal against conviction, it was dismissed by this Court after hearing.  We now give the reasons for our judgment.
申請人不服定罪及判刑，向本庭提出上訴許可申請。她其後在2012年2月14日放棄上訴判刑的許可申請。有關上訴定罪的許可申請，本庭經聆訊後，拒絕申請。本庭現就判決理由給予說明。

Facts of the case
案情

At 5.59 pm on 10 May 2010, the applicant arrived at the Hong Kong International Airport on board an airliner coming from Kuala Lumpur.  She was stopped and searched by customs officers.  In the backpack which she was carrying the officers found a notebook computer, some items of clothing and some shoes.  In the course of the search, the officers sensed a sour smell, so they searched the backpack more thoroughly.  Finally, they cut open the back of the backpack and found the dangerous drugs, the subject-matter of this case.  The purity of the heroin was within the range of 30% and 70%, and its retail price at the time of the offence was HK$825,428.88.
2010年5月10日下午5時59分，申請人乘搭飛機從吉隆坡抵達香港國際機場。海關人員截停申請人進行檢查。海關人員在申請人攜帶的背囊中發現一部手提電腦、一些衣物和鞋。由於在檢查期間嗅到酸味，海關人員對背囊進行進一步檢查，其後在割開背囊的背部位置時，發現收藏了涉案的毒品。涉案毒品的海洛英純度介乎30%至70%之間，案發時的零售價值是825,428.88港元。

The applicant elected to give evidence.  She had no previous criminal convictions.  Her evidence was that she was a manager of an office furniture company in Foshan in Mainland China, earning a monthly income of over RMB10,000 yuan.  In her spare time she studied for a master’s degree course in business administration.  She said that through the introduction of her friend Xiao Jin [transliteration of 小靳] she had come to know a woman called Lily, who was engaged in foreign trade.  In mid April 2012 she and Xiao Jin went to Malaysia together and brought some goods samples back to the Mainland for Lily.  The present occasion was the second one on which she went to Malaysia and brought goods samples back to the Mainland for Lily.  The applicant said that Lily had arranged for her the purchase of air tickets and the booking of hotel accommodation, and had paid her US$300 and RMB 200 yuan.
申請人選擇作供自辯。她之前沒有干犯刑事罪行的記錄。她的證供顯示她在佛山一間辦公室傢具公司任職經理，每月入息超過人民幣10,000元，工餘並修讀工商管理碩士課程。申請人稱透過朋友小靳認識一位從事外貿工作，名叫Lily的女士，並在2012年4月中曾與小靳一起前往馬來西亞替Lily把一些貨物的樣辦帶回國內。而這一次是第二次替Lily到馬來西亞取貨物樣辦回國內。申請人說Lily為她安排機票和酒店，及支付了300元美元和200元人民幣給她。

When the applicant arrived there, she followed Lily’s instruction and came into contact with a person called Army, and received the backpack involved in this case.  She said that she did not know there was a secret compartment in the backpack, nor did she know it contained dangerous drugs.  She said she had never touched any dangerous drugs before.  She believed what Xiao Jin said, i.e. it would not involve the commission of anything illegal, and on that basis she agreed to fetch the samples for Lily.  The applicant went on and said that upon receiving the backpack she had taken the items of clothing out and checked them.  She had also felt the inside of the backpack but did not discover anything.  She did not sense any sour smell either.  What she could smell was only the body odour of the person who contacted her.
她到達後，按Lily的指示，聯絡了一位名叫Army的人，接收了涉案的背囊。申請人稱她不知道背囊有暗格，亦不知道它藏有毒品。她本人更從未接觸過毒品，她是相信小靳的說話，即不會幹犯法的事，才同意為Lily帶樣辦。申請人並指出在收到背囊時，曾取出衣物查看，及用手觸摸背囊內部，但沒有發現。她亦沒有嗅到酸味，只是嗅到與她接洽的人的體味。

The applicant called three character witnesses and produced the written statement of another character witness.
申請人傳召了三位品格證人，及呈交了另一位品格證人的書面證詞。

Jury’s verdict
陪審團的裁決

When the trial judge finished his summing up in directing the jury to reach a verdict, the jury retired to consider what verdict they should return.  After some time, the jury asked the trial judge the following question:
在原審法官完成引導陪審團裁決的總結辭後，陪審團退席商議裁決。之後，陪審團向原審法官提出問題如下：

“We unanimously agree that the defendant knowingly brought contraband into Hong Kong, but some of us think that knowingly carrying contraband is not the same as knowingly carrying dangerous drugs.  For this reason we cannot reach a majority verdict, and we therefore hope that Your Lordship could give us some legal advice.”
「陪審團現一致認同被告在知情下攜帶違禁品入境，但部分陪審員認為知情帶違禁品並不代表知情帶毒品，故此，我們不能達成大比數裁決，故希望法官給予法律意見。」

Having discussed with the prosecuting counsel and the defence counsel, the trial judge gave further direction to the jury.  The following was what he said:
原審法官經過與控辯雙方的大律師商討後，向陪審團作出進一步的指引，其內容如下：

“In this regard I have two things to say in response: The first one is that before you can convict the defendant you have to conclude that she knew that the content of the packet was some kind of dangerous drug; and the second thing, with regard to the deliberation among you, members of the jury, I shall give you some time to give your answer to the following question from the court, that is, if the court gives more time for you to continue your deliberation, is it possible for you to reach a verdict or is it already impossible to do that?  May I ask you to discuss this and give me your answer to this question first?  After that, I shall decide what should be the next step to take.”
「咁喺呢方面我有兩點嘅回應，第一點，就係要將被告定罪，各位要裁定佢知道嗰包係某種類嘅毒品；第二，就各位陪審員討論嘅情況呢，咁我先係畀大家少少時間去回答法庭呢一個問題。如果法庭再畀多啲時間讓大家繼續去商討是否有可能達成裁決，或者已經係冇可能嘅事，或者我請大家去商討一下，回應咗呢個答案先，然後我再決定下一步。」

After discussion, the jury informed the learned judge in writing that “We think that if more time is given we should be able to reach a majority verdict.”  Then the learned judge said the following to the jury when they came back into the courtroom:
陪審團經商討後，以書面通知原審法官，表示：「陪審團認為多些時間應該可以達到大多數裁決。」原審法官於是在陪審團出席的情況下，向他們作出下列講話：

“Members of the jury, thank you very much.  I shall now read your written answer into record.  You wrote down ‘My Lord, we think that if more time is given we should be able to reach a majority verdict.’  In that case, I shall ask you to continue your deliberation until you arrive at a conclusion.  In any event, let me remind you.  You have been provided with a sheet of … a sheet of paper about your verdict which contains several questions.  I ask you to bring it along with you.  If you have reached a verdict, you can inform the court of that by following the steps set out on it.”
「各位陪審員，唔該晒大家，咁你哋所寫嘅回應呢，咁我讀一讀落嗰個紀錄度喇，就係你哋寫咗「法官大人，陪審團認為多些時間應該可以達到大多數裁決。」喺咁嘅情況之下，我會邀請大家係繼續進行商討直到有一個結果為止。無論如何，我提番，大家會已經有嗰張嘅--有幾個問題嗰張裁決紙，咁我請你帶番返去，如果有裁決，可以跟番呢一個步驟嚟通知法庭。」

Then the jury resumed their deliberation.  Finally, they found the applicant guilty by the ratio of 5:2.
陪審團之後再進行商議，最終他們以5:2的比數裁決申請人罪名成立。

Applicant’s grounds of appeal
申請人的上訴理由

The applicant’s Perfected Grounds of Appeal pointed out that for the following three reasons the conviction was unsafe or unsatisfactory:
申請人的「完備上訴定罪理由書」指基於下列3項理由，定罪裁決是不安全或不穩妥：

(1)The trial judge did not give the jury any explanation as to the legal definition of dangerous drug stipulated in the Dangerous Drugs Ordinance.
原審法官沒有就危險藥物在《危險藥物條例》下的法律定義向陪審團作出任何解釋。

(2)The directions given by the trial judge as to whether the applicant was made use of and whether she carried the dangerous drugs without her knowing what she was actually doing constituted conjectures prejudicial to the applicant, which also undermined the applicant’s defence in an unbalanced and unfair way.
原審法官有關申請人是否被利用，及在不知情下販運毒品這方面的引導，構成對申請人不利的推論，及不平衡地和不公平地削弱了申請人的辯解。

(3)The further direction given by the trial judge in response to the question raised by the jury was not balanced, and he erred in failing to give any explanation as to the legal definition of dangerous drug in the Dangerous Drugs Ordinance, and in failing to remind the jury that ultimately it was open to them not to reach a valid verdict.
原審法官因應陪審團的問題要求所作出的進一步引導有欠持平，並錯誤地沒有就危險藥物在《危險藥物條例》下的法律定義作出解釋，以及錯誤地沒有提醒陪審團他們最終可以不達成一個有效的裁決。

Grounds of appeal (1) and (3)
第（1）項和第（3）項上訴理由

Grounds of appeal (1) and (3) are closely related to each other, so they shall be dealt with at the same time.
第（1）項和第（3）項上訴理由因互有關連，故此一併處理。

The complaints concerning the jury’s question and the further direction given by the learned judge were referred to in paragraphs 8 and 9.
第（3）項上訴理由所指的陪審團問題，及原審法官的進一步引導，見上文第8和9段。

Mr. Wong, counsel for the applicant, submitted that from the question raised by the jury it could be seen that some of the jurors at that time thought that the applicant did not know she was carrying some dangerous drugs, and that therefore, in order to be fair, the trial judge should have given the jury the direction that if they were of the view that although the applicant knew that she was carrying some contraband goods, she had no idea that they were dangerous drugs, then they should find her not guilty.  Mr. Wong complained that the further direction given by the trial judge was unidirectional in that he failed to remind the jury that if they considered that the applicant was not aware or might not be aware that there were dangerous drugs in the backpack, they should return a verdict of not guilty.
代表申請人的黃大律師認為從陪審團的問題可見有部分陪審員當時認為申請人對她有毒品一事並不知情，因此原審法官為持平起見，應該引導陪審團若果他們認為申請人雖然知道帶了違禁品，但不知情是毒品的話，則他們應裁決她無罪。黃大律師指原審法官的進一步引導是單向的，沒有提醒陪審團若果他們認為申請人不知道或可能不知道背囊藏有毒品，便要裁定罪名不成立。

In our view, the trial judge in his summing up directing the jury to reach a verdict had repeatedly given specific, detailed and fair directions about the issue of whether the applicant knew that there were dangerous drugs in the backpack she was carrying.  Among such directions were the following passages:
本庭認為，關於申請人是否對她攜帶的背囊藏有毒品知情一點，原審法官在引導陪審團裁決的總結辭中已多次給予明確、詳細和中肯的引導，其中包括下列幾段引導：

“... Mr. Kwan [transliteration of 關] emphasized that you must pay attention to the fact that the dangerous drugs were concealed in a secret compartment, and that it is possible that it was really outside the defendant’s knowledge.  If you accept that there is such a possibility, you should find her not guilty.  The law is not that she is guilty simply because she might have knowledge of that.  This certainly is a correct statement about the law.”
「…關大律師強調大家要注意嘅係毒品係收藏喺暗隔裡面，被告有可能真係唔知，如果大家接納呢一個可能性，就應該判佢無罪，而唔係話如果佢可能知就係有罪。咁呢一點當然係正確嘅講法；」

“… The prosecution said if you find that the defendant did not know there were dangerous drugs concealed in the backpack, then you should find her not guilty; and the defence pointed out that if you think it is possible that the defendant did not know that, then you should acquit her.  Members of the jury, what the defence said is correct.  If you find that the defendant did not know the dangerous drugs were there, then of course you should find her not guilty.  Not only that she did not traffic in the dangerous drugs, she did not even possess the dangerous drugs.  If you think there is the possibility that she did not know the dangerous drugs were there, the result is the same.  That’s because the benefit of the doubt must go to the defendant, so you still are required to find her not guilty.”
「…控方提過，如果各位裁定被告唔知道有毒品藏喺背包，咁大家要判佢無罪。辯方已經指出過，大家如果認為被告有可能唔知，大家都要判佢無罪。各位陪審員，辯方嘅講法係正確嘅，如果各位裁定被告唔知道有毒品，大家都然要判佢冇罪，佢唔單止係冇販毒，佢藏毒都唔係。如果各位認為被告有可能唔知有毒品，咁個後果係一樣，因為疑點利益係要歸於被告嘅，因此都要判佢無罪。」

“Secondly, if you consider that the defendant’s evidence that she did not have the requisite knowledge is possibly true, you must return a verdict of not guilty.
「第二，如果各位認為被告所講嘅不知情情況係有可能嘅話，各位都要判佢罪名不成立；

Thirdly, if you do not believe what the defendant said, then the outcome of your disbelief will depend on what is it that you believe and what is it that you don’t believe.  If the thing which you don’t believe does not affect the crucial point, namely it is possible that she did not have the requisite knowledge, you must give the benefit of the doubt to her.  I shall say this part again.  If the thing which you don’t believe does not affect the crucial point, that is, it is possible that the defendant did not have the requisite knowledge, then you must still give the defendant the benefit of the doubt.”
第三，如果各位唔相信被告所講嘅內容，咁個結果就要視乎各位相信嘅係乜嘢，唔相信嘅係乜嘢。如果各位唔相信嘅部分並不影響被告可能不知情嘅重點嘅話，各位都要將疑點利益係畀被告。或者呢個部分我再講一次，如果各位唔相信嘅部分並不影響被告有可能不知情嘅重點，各位都要將疑點利益係畀被告；」

The question raised by the jury during their deliberations after they retired was a request for direction from the trial judge to deal with the difference in opinions among themselves.  The difference in opinions arose because some jurors thought that knowingly carrying contraband was not the same as knowingly carrying dangerous drugs.  Therefore, the crux of the question was whether the jury could find the applicant guilty of trafficking in dangerous drugs if they considered that she knew what she carried was contraband.  The further direction given by the trial judge was that the jury had to be satisfied that the applicant knew the article in question was a certain kind of dangerous drug before they could convict her.  This direction was aimed at the crux of the jury’s question.  In our judgment, in the summing up which the trial judge made earlier on, he had already given clear and thorough directions about the element of “knowledge”; that being so, when he replied to the jury’s question, it was appropriate for him to give a direction which was focused and direct.  It was not necessary for him to repeat that the applicant did not commit the offence of trafficking in dangerous drugs if she did not know or might not know there were dangerous drugs in the backpack.  We do not agree that the further direction given by the learned judge in response to the jury’s question was in any away unbalanced or unfair to the applicant.
陪審團在退席商議時提出的問題，是要求原審法官就他們之間的分歧給予法律方面的引導。他們的分歧在於有部分陪審員認為知情帶違禁品不代表知情帶毒品。是故，問題的焦點是若果陪審員認為申請人知道所帶的是違禁品，他們是否可裁決販運毒品罪名成立。原審法官的進一步引導，指出陪審團必須滿意申請人知道涉案的物品是某一種毒品，方能裁決她罪名成立。這是針對陪審團的問題的焦點的引導。本庭認為，有鑑於原審法官較早前的總結辭已就「知情」這項罪行元素給予了清淅和詳盡的引導，原審法官在回應陪審團的提問時給予直接和對焦的引導，是適當的做法。他不須再重複若果申請人不知道或可能不知道背囊藏有毒品，便不構成販運毒品的罪行。本庭不同意原審法官就陪審團員的問題所作出的進一步引導有欠持平或有對申請人不公之處。

Mr Wong also complained that the trial judge erred in failing to give the jury any explanation as to the definition of dangerous drug in the Dangerous Drugs Ordinance.  He submitted that the nature of a dangerous drug was a crucial matter in this case, and that it was even more necessary for the trial judge to explain to the jury the definition of dangerous drug in the ordinance when the jury’s question was about contraband and dangerous drugs.
黃大律師也指原審法官沒有就危險藥物在《危險藥物條例》下的定義向陪審團作出解釋是錯誤的。他的陳詞指危險藥物的本質是案中的關鍵事宜，尤其是當陪審團的問題是關乎違禁品和毒品時，原審法官就更應向陪審員解釋危險藥物在法例下的定義。

At the beginning of the trial, the prosecution and the defence had already agreed that heroin was concealed in the back portion of the backpack which the applicant was carrying, and that the dangerous drugs in this case were governed by Part I of the First Schedule of the Dangerous Drugs Ordinance: see 4(c) and paragraph 9 of the Facts Admitted by the Prosecution and the Defence.  For this reason, the trial judge in his summing up told the jury that there was no dispute between the prosecution and the defence over the fact that the dangerous drug involved in this case was heroin and that it was a dangerous drug governed by the Dangerous Drugs Ordinance.
本案的控辯雙方在案件開審時，已同意申請人所帶的背囊在背部位置藏有海洛英，以及涉案的毒品是受《危險藥物條例》的附表1第1部所管制：見《控辯雙方承認的事實》第4（c）和9段。原審法官因而在引導陪審團裁決的總結辭中指出，控辯雙方沒有爭議案中涉及的毒品是海洛英，及它是受《危險藥物條例》管制的毒品。

Our view is that under these circumstances, the jury certainly would clearly understand that the dangerous drugs concealed in the backpack being carried by the applicant were drugs which fit the definition in the Dangerous Drugs Ordinance.  In the present case, the disputes between the parties had nothing to do with the legal definition of dangerous drug or whether the drugs in question were dangerous drugs governed by the Ordinance.  The trial judge was not required to explain anything about the definition of dangerous drug in the Ordinance.  The question raised by the jury in the course of their deliberations did not show that they had any doubt concerning the legal definition of dangerous drug or whether the drugs involved in this case were dangerous drugs as defined in the Ordinance and so the trial judge needed to explain to them the legal definition of dangerous drug.  Furthermore, we do not agree that the jury could be confused by the trial judge’s statement to them that before they could convict the applicant they had to conclude that she knew what she was carrying was a certain kind of dangerous drug and therefore they needed to be provided with some explanation about the legal definition of dangerous drug.
本庭認為，在此情況下，陪審團必然已清楚明瞭藏在申請人帶的背囊的毒品是屬於《危險藥物條例》所界定的危險藥物。案中控辯雙方的爭議亦無關危險藥物法律定義或涉案毒品是否法例所管制的危險藥物。原審法官沒有必要就危險藥物在法例下的定義給予說明。陪審團退席商議後提出的問題亦不顯示他們對於危險藥物的法律定義或涉案物品是否法例界定的危險藥物存有疑問，以致原審法官需要向他們解釋危險藥物的法律定義。本庭亦不同意原審法官告訴陪審員，他們只能在裁斷申請人知道所帶的物品是某一種類的毒品才能定罪，這點會使他們混淆，以致有必要解釋危險藥物的法律定義。

With reference to the trial judge’s further directions given to the jury, Mr. Wong further submitted that it was necessary for the trial judge to remind the jury that ultimately they were entitled to have diverse views on the verdict and that they were not obliged to reach a legally valid verdict.  Mr. Wong opined that the emphasis of the jury’s question was on the ratio by which a verdict could be constituted, and that therefore the trial judge’s approach was seriously inadequate and by which pressure would be exerted on the jury, so that they were not able to be free to deliberate and arrive at a verdict without being subjected to any form of pressure.
黃大律師就著原審法官對陪審團的進一步引導的另一陳詞，指原審法官有需要提醒陪審員最終可以對裁決持有分歧意見，及不一定要達致一個有法律效力的裁決。黃大律師認為陪審團提出的問題，重點在於裁決的比例，因此原審法官的處理手法嚴重不足，且對陪審團造成壓力，使他們不能在沒有壓力下自由思考和作出裁決。

We do not agree with Mr. Wong’s interpretation of the jury’s question.  The jury did not ask the trial judge for directions about how to reach a majority verdict.  What they sought was further directions as to the element of “knowledge”.  The trial judge replied that before they could convict the applicant they had to conclude that she knew what she was carrying was a certain kind of dangerous drug.  After saying that, he asked the jury to indicate whether it was possible for them to reach a valid majority verdict if he gave them more time to continue their deliberation.  He also told the jury that he would decide what the next step to take should be after he had their answer.  It should be noted that the trial judge made such enquiry of the jury only after he discussed with the prosecuting counsel and the defence counsel and obtained their approval.
本庭不同意黃大律師對陪審團的問題的詮釋。陪審團並不是向原審法官尋求有關如何達致大多數裁決的指引，而是就「知情」這項罪行元素要求進一步的引導。原審法官在指出他們必須裁斷申請人知道所帶的物品是某一種類的毒品才可定罪後，要求陪審團表明，如果給予他們多一些時間繼續商議，他們是否有可能達致大多數的有效裁決。原審法官亦告訴陪審團，在得到他們的回覆後，他才會決定下一步怎樣處理。值得注意的是原審法官是在與控辯雙方的代表律師商討，並在他們同意下，向陪審團作出這項查詢。

What the trial judge did was only making an enquiry of the jury.  This was different from what happened in HKSAR v Chan Ka Man [2005] 1 HKC 162 and HKSAR v Chung Chi Bor [2008] 1 HKC 255.  What transpired was not that the jury indicated that they could not reach a majority verdict and then the trial judge asked them to continue their deliberation.  The purpose of the trial judge’s enquiry was simply to find out whether the jury was in such a situation that they could not reach a majority verdict.  Since the jury’s answer was that they could reach a majority verdict, the trial judge did not need to remind them that they were entitled to have diverse views and that they were not obliged to reach a majority verdict.  We do not consider that the approach taken by the trial judge resulted in pressure being exerted on the jury or created a risk that the jury was given the misconception that they were obliged to reach a majority verdict.
由於原審法官僅是向陪審團查詢，這與HKSAR v Chan Ka Man [2005] 1 HKC 162和香港特別行政區訴鍾志波 [2008] 1 HKC 255兩案的情況並不相同。原審法官並不是在陪審團表示不能達致大比數裁決後，要求陪審團繼續進行商議。原審法官的查詢，只是要瞭解陪審團是否處於不能達致大比數裁決的情況，由於陪審團的回覆是他們可以達致大多數裁決，原審法官遂沒有需要提醒他們是可以持有分歧的意見，及不達致大多數裁決。本庭不認為原審法官的處理手法存在對陪審團施壓或使他們誤以為必須達致大比數裁決的風險。

Grounds of appeal (1) and (3) are not substantiated.
第（1）項和第（3）項上訴理由不能成立。

Ground of appeal (2)
第（2）項上訴理由

The applicant’s second ground of appeal is targeted at the directions given by the trial judge in the summing up regarding whether the applicant carried the dangerous drugs when she was being made use of and not knowing that there were dangerous drugs.  The relevant part was set out below:
申請人的第（2）項上訴理由，是針對原審法官在總結辭中, 就申請人是否在被人利用及不知情的情況下販運毒品所作的引導。相關的部分節錄如下：

“… The defence witnesses said that the defendant was rather simple-minded and was too ready to believe what other people said.  You have to consider whether Lily did take advantage of the defendant’s weakness in this respect, won her confidence and then sent her to Malaysia by lying to her that she was to go there to fetch some goods samples.  Of course, on the other hand, would a drug trafficker find someone who was completely ignorant of what’s going on to help him to convey dangerous drugs?  In the course of conveying the drugs, if any contingency arises and if she can’t cope with it, then it may result in a loss of $800,000 odd.  You need to consider this matter carefully from these different angles in a balanced and fair manner according to the evidence in this case.”
「…辯方證人講過被告比較天真，容易信人，喺各位考慮Lily係唔係利用被告呢一方面嘅弱點而騙取被告信任，再指示佢去馬來西亞「詐諦」話攞樣本呢？當然，另一方面嘅情況係毒販會唔會搵一個完全不知情嘅人去幫手運毒呢？途中如果有突發嘅事情，而佢係未能夠配合嘅話，咁就有可能會有八十幾萬嘅損失嘅。呢一啲不同嘅角度，各位需要基於本案嘅證據，平衡地、公平地小心作出考慮。」

Mr. Wong submitted that the trial judge only directed the jury to consider the possibility that a drug trafficker would not take the risk of losing dangerous drugs worth $800,000 odd, but he did not direct the jury to consider another possibility, namely it would be easier for a drug trafficker to control the activities of a person who did not know what was going on, and when being stopped and questioned such a person would not give him or her away by behaving nervously or furtively.  Mr. Wong relied on HKSAR v Punsalang Elmer Umali [2011] 3 HKLRD 55 to criticize that the trial judge’s directions were not only unbalanced, but they also unfairly undermined the applicant’s defence.
黃大律師認為原審法官只引導陪審團考慮毒販不會冒上損失80萬元多的毒品的風險，却沒有引導陪審團從另一角度，考慮毒販較容易控制不知情者的舉動，以及不知情者在被截查時不會神色慌張或行動閃縮而露出破綻。他引用HKSAR v Punsalang Elmer Umali [2011] 3 HKLRD 55一案；批評原審法官的引導既即不平衡，亦不公平地摧毀了申請人的辯解。

In HKSAR v Punsalang Elmer Umali (paragraph 14) the Court of Appeal pointed out that whether a summing up is fair and balanced is always case and context specific and that the key point is the effect produced by the summing up as a whole.
在HKSAR v Punsalang Elmer Umali案中（第14段），上訴法庭指出，在考慮法官的總結辭是否公允持平時，必須顧及每宗案件個別的情況，重點在於總結辭所產生的整體效果。

Moreover, in order to be fair and impartial, the trial judge in his summing up is duty bound to explain clearly to the jury both the prosecution case and the defence case.
此外，為達致持平不偏，主審法官在總結辭中亦有責任把控辯兩方面的理據都向陪審團說明。

Regarding the issue of whether the applicant carried the dangerous drugs without her knowing what she was actually doing, the prosecution in their closing speech said that the drugs in question was worth a lot of money, and that if the applicant knew nothing about the true facts, Lily would have been reckless if she let her carry the drugs.  When the trial judge gave directions to the jury as to the present case as a whole, he mentioned the defence case that the applicant was being made use of as a cat’s paw in this drug trafficking.  After that he referred to the criticisms raised by the prosecution, i.e. would a drug trafficker find someone completely in the dark about the truth to help him convey his dangerous drugs, thereby taking the risk of losing the drugs that were worth several hundred thousand dollars?  He just presented to the jury the arguments put forward by the two parties about this issue so that they could consider it from different perspectives.  What he did was not as Mr. Wong said aiming for the destruction of the applicant’s defence.  When the trial judge, in response to the defence counsel’s request, gave further directions to the jury on this issue, he explicitly said that he had to state the prosecution’s views too because he should not present only the defence case to the jury.  He correctly reminded the jury that they should draw on their common sense to assess the arguments advanced by the prosecution and the defence.
就本案中申請人是否在不知情的情況下販運毒品這點，控方在結案陳詞時提出涉案毒品價值不菲，如申請人毫不知情，Lily不會謬然把毒品交由她運送。是故，當原審法官在向陪審團就整體案情作出引導時，他提及辯方的論據，即申請人是被利用運毒，之後再提及控方的意見，即毒販會否找一個完全不知情人協助運毒，甘冒上失去幾十萬元毒品的風險。他只是把控、辯兩方面在這項議題上的說法都一併帶出，以便陪審團可以從不同角度加以考慮。他不是如黃大律師所指，針對著申請人的辯解予以摧毀。原審法官在回應辯方大律師要求就這點給予陪審團補充的引導時，亦已明確指出他只是同時亦反映控方的說法，因為他不應該只是向陪審團反映辯方的立場。原審法官亦正確地指出，陪審員應以自己的普通常識去評估控辯兩方面的論點。

We do not agree with the applicant’s allegation that the directions given by the trial judge as to whether she was made use of as a cat’s paw so that she carried the drugs without knowing what she was actually doing were tendentious or were destructive to her defence.  Ground of appeal (2) is not substantiated either.
本庭不同意申請人指原審法官有關她是否遭人利用，在不知情下販運毒品的引導帶有指導性或是對其辯解理由作出摧毀性的破壞。第（2）項上訴理由亦不能成立。

Conclusion
結論

Based on the above analysis and reasons, we do not consider the applicant’s conviction to be in any way unsafe or unsatisfactory.  We therefore refuse to grant the applicant leave to appeal against her conviction.
基於上述分析和理由，本庭不認為申請人的定罪有欠安全或穩妥之處。本庭因此拒絕申請人上訴定罪的許可申請。

Mr. Richard Wong, instructed by Messrs To Lam & Co., assigned by the Director of Legal Aid, for the Defendant/Applicant.
被告人/申請人：由法律援助署署長委派杜林律師事務所轉派黃達華大律師代表。

Ms. Catherine Fung, Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent.
答辯人：由律政司助理刑事檢控專員馮淑賢代表。