Hon Poon J (giving the Reasons for Judgment of the Court):
高等法院原訟法庭法官潘兆初頒發上訴法庭判決理由書：

Introduction
前言

The applicant was indicted of one count of trafficking in a dangerous drug and had been on trial twice in the High Court.
申請人被控一‍項「販運危險藥物」罪，並曾在高等法院兩次受審。

The first trial hearing commenced on 27th February 2012.  On 5th March of the same year, the applicant was convicted and sentenced to imprisonment for 23 years and 6 month.  The applicant appealed against her conviction.  On 3rd July 2013, the Court of Appeal allowed the appeal and ordered the case to be remitted for retrial.
第‍一次審訊在2012年2月27日開始，同年3月5日申請人被判罪成，並被判入獄23年6個月。申請人提出上訴，2013  年7月3日，上訴法庭判申請人上訴得直，但把案件發還重審。

After retrial, the applicant was convicted for the second time and she was sentenced on 7th April 2014 to imprisonment for 23 years and 6 months.  The applicant applied again for leave to appeal against conviction.  Upon handing down the judgment on 12nd February 2015, we granted the applicant leave to appeal and, treating the application as the appeal proper, we allowed the appeal.  We also quashed the conviction and sentence on the applicant.
經重審後，申請人第二次被裁定罪名成立，並在2014年4月7日被判入獄23年6個月。申請人再就定罪申請上訴許可。2015年2月12日，本庭頒下判案書，批准申請人之上訴許可，視之為正式上訴，並判上訴得直，撤銷申請人的定罪及刑期。

The respondent sought for a retrial whilst the applicant opposed the retrial application.
答辯人要求重審，而申請人則反對。

After hearing on 24th June 2015, we made an order for the case to be remitted to the Court of First Instance to be retried.  We now give the reasons for our decision.
2015年6月24日，經聆訊後，本庭命令把案件發還原訟法庭重審。以下是決定的理由。

Legal Principle
法律原則

Section 83E (1) of the Criminal Procedure Ordinance  provides:
《刑事訴訟程序條例》第83E(1) 條訂明：

Where the Court of appeal allows an appeal against conviction and it appears to the Court of Appeal that the interests of justice so require, it may order the appellant to be retried.”
凡上訴法庭就針對定罪而提出的上訴判決得直和覺得為了司法公正而有所需要，上訴法庭可命令將上訴人重審。」

As stipulated in section 83E(1) of the said ordinance, when the court decides whether or not to order for a retrial, the critical issue that needs to be considered is whether the interests of justice call for a retrial.  And the interests of justice are not confined to the interests of the prosecutor and the accused in the particular case.  They also include the interests of the public in Hong Kong that those persons who are guilty of serious crimes should be brought to justice and should not escape it merely because of a technical blunder by the judge in the conduct of the trial or his summing-up to the jury: See Ting James Henry v HKSAR.
第83E(1) 條列明，當法庭考慮是否重審時，關鍵的議題是，重審是否為了司法公正而有所需要。而司法公正的需要並非局限於控方和被告人在某宗案件裡的利益，還包括香港公眾的整體利益之一，即干犯嚴重罪行的人應該被繩之於法，而不應該因法官在審訊過程或引導陪審團時犯了技術性的錯誤而逍遙法外：見Ting James Henry v HKSAR。

In examining whether the interests of justice so require, it is necessary for the court to consider the actual circumstances of the case as well as all the relevant factors, including the seriousness of the offence, the history of the proceedings, the evidence for both prosecution anddefence, the complexity or otherwise of the trial, the reasons for the success of the appeal, the lapse of time since the alleged offence and since the trial and the length of the sentence which the appellant may have served.  Then it is necessary for the court to weigh the public interest in ensuring that those guilty of serious crime are brought to justice against the effects of putting a successful appellant through the ordeal of a retrial.  If after all these matters have been considered, no reasonable prospect of a conviction after a new trial is demonstrated, retrial would not be ordered: See R v Holgate (No 2).
在審視司法公正是否有所需要時，法庭必須考慮涉案的實際情況和所有的相關因素，包括控罪的嚴重性、之前法律程序的過程、控辯雙方的證據、審訊是否複雜、上訴成功的原因、所涉控罪發生之日至今相隔的時間，審訊至今相隔的時間，以及上訴人已服刑期的長短。然後，法庭需要平衡干犯嚴重罪行的人應被繩之於法的公眾利益，和重審的艱苦經歷對一‍名上訴得直的被告人所帶來的後果。如果考慮過所有的因素後，法庭認為沒有合理的機會重審後上訴人會被定罪，便需拒絕命令重審：見R v Holgate (No 2)。

In the present case, should we order a retrial, it would be a second retrial.  Mr Leung, counsel acting for the applicant, submitted that the court in principle should not order a second retrial.  He at one point even contended that the court could not order a retrial for the second time, citing the Mok Kin Kau v HKSAR in advancing his argument.  However, we must emphasize that Mr Leung’s contention is wrong.
在本案，若本庭命令重審，這將會是第二次重審。代表申請人的梁‍大律師說，原則上法庭不應命令第二次重審，他一‍度甚至說法庭不能命令第二次重審。他援引Mok Kin Kau v HKSAR 以支持他的主張。本庭必須強調，梁‍大律師的觀點是錯誤的。

In the case of Mok Kin Kau, the defendant was convicted twice of assault occasioning actual bodily harm by the magistrates.  Each conviction was subsequently quashed on appeal.  After the first trial hearing, the defendant was sentenced to two months’ imprisonment, suspended for 18 months; at the second trial hearing, he was sentenced to serve 200 hours of community service.  When the case went to the appellate court the second time, the defendant had already served the term of his community service order.  The judge of the Court of First Instance ordered a third trial, upon which the defendant took the case to the Court of Final Appeal.  In the context of such unusual circumstances, the Court of Final Appeal upon applying the aforesaid legal principle, pointed out that the interests of justice have to be so special and compelling before an unusual course could be adopted by ordering a second retrial, which will place a defendant on trial for the third time after two concluded trials and successful appeals and after he had already served the whole of his sentence.  Nevertheless, the Court of Final Appeal did not mention in its judgment that the court in principle could not order a second retrial.  Hence, it does not support Mr Leung’s argument.
在Mok Kin Kau一‍案，被告人因襲擊引致他人身體實際傷害而兩次被裁判官判罪成，但兩次的定罪都因上訴得直而撤銷。被告人第‍一次審訊時被判監禁2個月，緩刑18個月；第二次審訊時被判200小時社會服務令。第二次上訴時，被告人已完成社會服務令。原訟法庭法官命令第三次審訊，被告人上訴至終審法院。在這樣特別的情況下，終審法院在引用上文提及的法律原則後，指出必須有特別且強而有力的司法公正需要，才可以採取不尋常的做法命令第二次重審，而使一‍位已經經過兩次審訊、兩次成功上訴及服完所有判罰的被告人面對第三次審訊。終審法院的判詞並沒有指原則上法院不可命令第二次重審，所以並不支持梁‍大律師的主張。

On the contrary, relevant authorities expressly pointed out that the court has had the jurisdiction to order a second retrial.  In R v Bell, it was necessary for the Court of Appeal of England to explore the issue of whether a second retrial or any further retrial would constitute abuse of process.  Having examined the precedents in England, as well as authorities in other common law jurisdictions, the Court of Appeal of England noted that the principle which applied was best encapsulated in the observations of Lord Bingham l in the judgment delivered by him in Forrester Bowe v The Queen, as seen in the extract below:
反之，相關的案例表明法院有司法權力命令第二次重審。在R v Bell，英國的上訴法庭需要探討第二次及之後的重審是否構成濫用司法程序。上訴法庭審視過英國及其他普通法司法管轄區的案例典據後說，以下所引述Bingham勳爵在Bowe v R 的判詞把適用的法律原則總結得最清楚：

“It is a common practice for prosecutors in England and Wales to offer no evidence against a defendant if two previous juries have been unable to agree… but that is no more than a convention, as recognised by the Court of Appeal… in R v Henworth [2001] 2 CR App R 4.  It may well be that the prosecuting authorities, having failed to obtain a conviction even by a majority on two occasions, judge that a further trial will not have a reasonable prospect of culminating in a conviction.  It is in the first instance for the prosecutor to judge whether, taking account of all relevant considerations, the public interest is better served by offering no evidence or by seeking a further re-trial.  There is plainly no rule of law in this country which forbids a prosecutor from seeking a second re-trial….  There may of course be cases in which, on their particular facts, a second retrial may be oppressive and unjust…. Whether a second retrial should be permitted depends on an informed and dispassionate assessment of how the interests of justice in the widest sense are best served.  Full account must be taken of the defendant’s interests. …. Account must also be taken of the public interest in convicting the guilty, deterring violent crime and maintaining confidence in the efficacy of the criminal justice system”.
英國和愛爾蘭的主控官一‍般在陪審團兩次都無法達成共識之後，均不會再提出證據指控被告人……然而此擧並非只是一‍項慣例，就正如上訴法庭在R v Henworth [2001] 2 Cr App R 4一‍案所確認的一‍樣。情況甚可能是檢控當局經過兩次的審訊，仍無法使過半數的陪審團作出裁定被告人罪名成立的裁定，因此判斷即使再次審訊，亦沒有合理希望把被告人定罪。主控官經考慮所有相關的因素後，首先會判斷什麽才是最符合公衆利益的做法：不再提出證據指控被告人，抑或申請再次重審案件。顯然而見，本國並沒有限制控方再次提出第‍二次重審的規定。……在某些案件的某些特定情況下，第‍二次重審可能是欺壓和不公平的舉措。……究竟應否批准第二次重審，法庭必須作出知情和冷靜的評估，得悉如何在最大程度上秉行公義，然後才可以作出決定。被告人的利益必須充分獲得考慮。……此外亦須考慮定罪所帶來的公衆利益，包括對暴力罪行的阻嚇作用，以及維持刑事司法制度功效的信心。」

In the case of Bell, the Court of Appeal of England specifically pointed out that a second retrial should be confined to a very small number of cases in which a crime of extreme gravity had undoubtedly occurred, and the evidence that the defendant committed the crime on any fair minded objective judgment remained very powerful.
在Bell一‍案，英國上訴法庭特別指出，第二次重審只應在少數的案件中出現，此等案件涉及毫無疑問是已經發生的極爲嚴重的刑事罪行，而根據任何客觀公平的判斷而言，指控被告人犯罪的證據仍屬有力。

In the recent case of HKSAR v Bian Zhenju, the applicant opposed the application for retrial, we ( differently constituted) nonetheless opined that in the interests of justice, it was necessary to order a third retrial.  The applicant of that case trafficked in 3.45 kg of heroin hydrochloride by importing them from Kuala Lumpur into Hong Kong via the Hong Kong airport.  She was sentenced to 27 years’ imprisonment, and by the time when the appeal was eventually allowed, she had already been jailed for more than four years.  At that hearing, we had already stressed that the offence that the applicant was charged with, namely, trafficking in 3.45kg of heroin hydrochloride by importing them into Hong Kong was extremely serious.
最近，在HKSAR v Bian Zhenju，雖然申請人反對重審的申請，但本庭 (不同組成) 仍然認為為了司法公正需要作出第三次重審的命令。該案的申請人從吉隆坡販運3.45公斤海洛英經香港機場到港，被判27年監禁，最後上訴成功時被監禁已超過4年。本庭當時強調申請人面對的控罪，即販運3.45公斤海洛英進口香港，是極其嚴重。

Undoubtedly, we are empowered with the jurisdiction under appropriate circumstances to order a second retrial, although it may be an unusual course to do so.
毫無疑問，本庭有司法權力，在適當的情況下，命令第二次重審，雖然此舉是不尋常的做法。

The present case
本案

In the present case, we had already considered the various factors below:-
在本案，本庭考慮過下面的因素：

The offence involved in the present case was extremely serious.  The applicant was alleged of trafficking in large quantities of dangerous drug, namely, 1.44 kilograms of mixture containing 0.96 kilogram of heroin hydrochloride by importing them from Malaysia into Hong Kong.
本案涉及的罪行十分嚴重，申請人被指販運大量危險藥物，即將內含0.96公斤海洛英鹽酸鹽的1.44公斤混合物從馬來西亞帶來香港。

The applicant was arrested on 17th January 2011.  As mentioned in the above, with her appeal allowed on 3rd July 2013, the applicant succeeded in having her conviction in the first trial hearing before another judge overturned on the ground that the trial judge had misdirected the jury.  Then in the second trial hearing on 4th April 2014, the jury reached a unanimous verdict of finding the applicant guilty, and on 7th April of the same year, the applicant was sentenced to imprisonment for 23 years and 6 months.
申請人在2011年1月17日被捕。如上文指出，申請人在2013年7月3日上訴得直成功推翻第一‍次在另‍一法官席前的定罪，理由也是法官在引導陪審團時犯錯。之後在第二次審訊時，被陪審團在2014年4月4日一‍致裁定罪名成立，並在同年4月7日被判監禁23年6個月。

The evidence adduced by both the prosecution and defence in this case was not complicated: it was the allegation of the prosecution that the applicant with knowledge brought with her to Hong Kong the luggage containing the dangerous drug hidden inside the secret compartment; on the other hand, the applicant said that the sample clothing was consigned to her by someone for her to bring to Mainland China inside the luggage she was carrying.  She said that she had no knowledge that there was secret compartment in her luggage and that there was dangerous drug placed inside.
本案控辯雙方的證供並不複雜：控方指申請人在知情下把在暗格內藏危險藥物的行李箱帶來香港；而申請人則說她只是受人所托帶行李箱內的衣服樣板返回國內，她指對行李箱內有暗格和藏有危險藥物並不知情。

We allowed the applicant’s appeal this time entirely because we were of the view that the trial judge had erred first in (a) not having adopted an objective approach when participating in cross-examination of the applicant whereby it would lead an informed bystander listening to the trial to conclude that the applicant had been deprived of a fair trial; and (b) regarding “shut eye” or on the issue of “constructive knowledge” had inappropriately misdirected the jury.  Therefore, the success of the appeal was totally unrelated to the strength of the evidence of the prosecution or the conduct of the prosecution in the trial.
這一‍次申請人上訴得直完全是因為本庭認為原審法官犯錯：(a) 參與盤問申請人時沒有保持客觀態度而令一‍名聆聽案件及知情旁觀者認定申請人沒有獲得一‍個公平的審訊；及 (b) 錯誤地就「閉上眼睛」“shut eye” 或在「推定知情」“constructive knowledge” 的議題上不當地引導陪審團。因此，是次上訴得直與控方證供強弱或控方於審訊時的行為完全無關。

The present case occurred on 17th January 2011, which was some four years ago.  The last trial hearing was concluded about one year ago (7th April 2014) and the applicant had already also served about four years of sentence.
本案案發日 (2011年1月17日)，距今約4年，上一‍次審訊約在一年前完結 (2014年4月7日)，而申請人已服了約4年刑期。

The case put forward by the prosecution was simple and straightforward, and the evidence adduced was sufficient.  All the prosecution witnesses were able to attend court to give evidence when the case went on retrial, and the quantity of dangerous drug involved in the case was large ( nearly one kilogram of pure heroin).  The defence did not dispute the fact that the applicant did carry with her the dangerous drug hidden in her luggage.  The only contention between the parties was whether the existence of the dangerous drug was in her knowledge.  This apparently was a factual dispute to be determined by the jury.  Upon examining all the facts in this case, we concluded that there was reasonable prospect of a conviction.
本案控方案情簡單直接，證據充分，所有控方證人均能就重審作供，而且涉案的危險藥物份量龐大 (差不多一‍公斤純海洛英)，辯方並不爭議申請人確有帶藏有危險藥物的行李箱抵港，唯‍一爭議的是她對有關危險藥物的存在是否知情，這明顯是應交由陪審團決定的事實爭議。綜觀本案所有案情，本庭認為案件有合理的定罪機會。

We had also considered the issue concerning the ordeal faced by the applicant if she has to be undergo a third trial.  Regarding this point, Mr Leung did not put forward any substantial argument in his submission.  It had come to our attention that the applicant due to the stress induced by the legal proceedings has been suffering from adjustment disorder syndrome, but after taking prescribed medication, her mental condition has already stabilized.  Her mental ability had not been damaged nor was she suffering from any mental illness or other serious problem.  Her mental condition also renders her fit for plea.  For the particulars in this respect, one can refer to the relevant psychiatric and psychological reports.  We considered that the mental condition of the applicant did not provide sufficient grounds for opposing the application of a second retrial.  Mr Leung did not persist on any specific stance regarding this matter either.
本庭亦考慮過申請人要面對第三次審訊而要面對的艱苦經歷。在這一‍點上，梁‍大律師沒有甚麼實質陳詞。本庭得悉，申請人患上因法律程序促成的壓力而引致的適應障礙，但獲藥物配方後精神狀態已穩定下來。她並無智力受損或任何精神病或其他嚴重問題，而且精神上合適答辯。詳情見相關的精神報告及心理報告。本庭認為，申請人的精神狀況不足以否定第二次重審。梁‍大律師對此亦無特別堅持的立場。

Having considered all the relevant factors, as well as weighing the public interest and the interest of the applicant, we concluded that it was proper to make an order for a second retrial.
在考慮過所有相關的因素，以及平衡過公眾利益和申請人的利益後，本庭認為命令第二次重審是合適的做法。

Conclusion
結論

We therefore ordered the case to be remitted to the Court of First Instance to be retried, and ordered the applicant to be remanded in custody pending retrial.
因此，本庭命令把本案發還原訟法庭重審，並下令申請人要還押等候重審安排。

Mr Edmond Lee, Senior Public Prosecutor of the Department of Justice, for the respondent.
答辯人：由律政司高級助理刑事檢控專員李俊文代表。

Mr Leung Chun Keung, instructed by Wong & Co. and assigned by the Legal Aid Department, for the applicant.
申請人：由法律援助署委派黃律師事務所轉聘梁振強大律師代表。