Barnes J (giving the judgment of the Court):
原訟法庭法官張慧玲頒發上訴法庭判案書：

Background
背景

On 9 May 2012, the applicant was found guilty of the charge of “trafficking in a dangerous drug” by a jury sitting with Madam Justice M Poon in the Court of First Instance and sentenced to a term of 20 years’ imprisonment.  The applicant sought leave to appeal both conviction and sentence.  She was represented by Mr Charles Chan of counsel in the application for leave to appeal against conviction and acted in person in her application for leave to appeal against sentence.
於2012 年5 月9 日，申請人在原訟法庭法官潘‍敏‍琦席前被陪審團裁定一項「販運危險藥物」罪罪名成立，被判監20 年。申請人不服定罪及判刑，提出上訴許可申請。就定罪上訴許可申請，申請人由陳‍永‍豪大律師代表，就判刑申請人則無律師代表。

At the conclusion of the hearing, we granted the applicant leave to appeal conviction and treated it as the appeal hearing, and we dismissed her appeal.
本庭在聆訊後，批准申請人就定罪提出的上訴許可申請，並視之為正式上訴。本庭駁回上訴。

We dismissed the applicant’s application for leave to appeal sentence.
本庭駁回申請人就判刑提出的上訴許可申請。

Here are our reasons.
以下是本庭的理由。

Prosecution Case
控方案情

The prosecution case, in simple terms, was that on the day in question the applicant arrived at the Hong Kong International Airport on a flight from Kuala Lumpur and was then intercepted by Customs officers.  Customs officers inspected the rucksack that the applicant was carrying, cut open the back of the rucksack and found a bag of powder.  Subsequently, it was found to be 1 kg of a mixture containing 0.54 kg of heroin with a market value of about HK$680,000.
控方案情，簡而言之，是申請人在案發當日乘搭飛機從吉隆坡抵達香港國際機場後，被關員截查。關員搜查申請人揹著的背囊，在開背囊背部位置後找到一包粉末。其後證實為內含0.54 千克海洛英的1 千克混合劑，巿值約68 萬港元。

The Customs officers arrested and cautioned the applicant.  She indicated that she understood and had “nothing to say”.
關員拘捕及警誡申請人，申請人表示明白，她「無嘢講」。

Subsequently, the applicant voluntarily attended a video-recorded interview held by the police.  Under caution, she said that she had been asked by her boyfriend Terry (a black man) to go to Kuala Lumpur to get goods samples.  This was not the first time, but the third time, that she went to Kuala Lumpur to get goods samples.  Each time, the air tickets and accommodation were paid by Terry, and on each occasion, after arriving Kuala Lumpur, she contacted a black man called Paul.
其後申請人自願接受警方與她進行錄影會面。警誡下申請人指她是受她的男朋友Terry (一名黑人) 所託，前往吉隆坡取貨辦。是次已非申請人首次前往吉隆坡取貨辦，而是第3 次。每次機票、住宿費用是由Terry支付。每次她在抵達吉隆坡後與一名叫Paul的黑人男子聯絡。

This time, Paul took her to buy brassieres as goods samples.  Afterwards, he put the samples into the rucksack in question.  The applicant did not thoroughly inspect the rucksack.  She said that she had absolutely no idea of the presence of the heroin inside the rucksack, nor did she have any suspicion.
是次Paul帶她前往購買胸圍作貨辦。其後Paul將貨辦放入涉案背囊。申請人並無仔細查看背囊。申請人指她對背囊內有該包海洛英是毫不知情，亦從無任何懷疑。

Defence case
辯方案情

The applicant elected not to testify, nor did she call any witness.
申請人選擇不作供，亦不傳召證人。

Grounds of appeal (against conviction)
上訴理由 (定罪)

Mr Chan advanced the following two grounds to contend that the conviction was neither safe nor satisfactory.
陳‍大律師提出以下兩項上訴理由指定罪不穩妥。

Ground (1)
理據 (一)

The trial judge, in her directions to the jury, erred in raising the matter of whether “[the defendant], in facing some conspicuous circumstances, had deliberately disregarded, turned a blind eye and chosen not to ascertain?  Was the defendant in fact tacitly aware of the presence of the dangerous drug?”  It was extremely likely that the jury were led to misunderstand in the following ways:
原審法官錯誤地在引導陪審團時提出申請人是否「故意對一啲顯而易見嘅情況採取不聞不問、視若無睹，故意唔去核實嘅態度呢？被告係咪對毒品嘅存在其實係心知肚明呢？」導致陪審團極有可能有以下誤會：

that the fact that the applicant did not inspect was equivalent to her having the knowledge;
申請人不作查證等同於知情；

that the fact that the applicant knew having the rucksack containing the dangerous drug in question handed to her involved a crime meant that she was aware that the crime was trafficking in a dangerous drug; and
申請人知道把藏有涉案毒品的背囊交託她是牽涉有罪行便等同她知道該罪行是販毒；及

that her reasonable suspicion was equivalent to knowledge.
她有合理懷疑便等同知情。

Mr Chan complained against the following directions the judge gave to the jury on the first day (appeal bundle pages 18U to 19D):
陳‍大律師投訴潘‍法官在第一天向陪審團作出的以下指引 (上訴文件冊第18 頁U 行至19 頁D 行)：

“Mr Chan for the defence said in his submission that Terry, as a drug trafficker, would absolutely in no way want his courier to know that what was being delivered was dangerous drug, and therefore he might not have told the courier, ‘I give some dangerous drug to you for delivery.’ However, you may also exercise your common sense to think about this.  Sometimes, it is not necessary to make everything clear verbally and people just understand each other tacitly. Things may be understood tacitly and simply does not need to be made clear verbally. You may consider whether the defendant, in facing some conspicuous circumstances, had deliberately disregarded, turned a blind eye and chosen not to ascertain? Was the defendant in fact tacitly aware of the presence of the dangerous drug? Are you satisfied that there is no reasonable doubt? No matter it is by common sense or on the facts, the only reasonable inference is that the defendant knew that there was dangerous drug inside the rucksack.” (emphasis added)
「辯方陳大律師陳詞嘅時候就話，以Terry作為一個毒販而言，佢係絕對唔會想同佢運送嘅人知道佢帶緊毒品喇，所以未必會話畀嗰個人聽，『我畀啲毒品你帶呀。』咁。但係各位又可以運用你哋嘅常識諗下喇，有啲嘢唔一定係需要宣之於口嘅，大家心照不宣，唔需要以口明言，都會心照不宣嘅。你哋可以考慮下被告係咪故意對一啲顯而易見嘅情況採取不聞不問、視若無睹，故意唔去核實嘅態度呢？被告係咪對毒品嘅存在其實係心知肚明呢？大家係咪可以毫無合理疑點咁滿意？無論以一般常識上或者事實上而言，唯一合理嘅推論係被告係知道背囊入面有毒品。」 (本庭加以強調)

Firstly, Mr Chan complained that after stating the defence position, the judge immediately refuted it and attacked what the defence had said, and on the contrary, did not give any comment on what the prosecution had said.
首先，陳‍大律師投訴指潘‍法官在道出辯方立場後便立即加以反駁，評擊辯方說法，但無就控方的說法加以評論。

Secondly, by saying “no matter it is by common sense or on the facts, the only reasonable inference is that the [applicant] knew that there was dangerous drug inside the rucksack” in form of a statement, the judge established that the observation in this regard was more important than other details or features in the case.
第二是潘‍法官以陳述式說「無論以一般常識上或者事實上而言，唯一合理嘅推論係 [申請人] 係知道背囊入面有毒品」，確立了這方面的觀察比案件中其他的細節或特點更為重要。

Mr Chan cited the case of The Queen v Law Wai Choi & Another [1997] HKLRD 555 and said that deliberate disregard merely “may” be inferred as, but was not an alternative to, a defendant’s knowledge of the content of the packet in his possession.  The phrase “only reasonable” used by the judge suggested that failure to inspect must be tantamount to knowing, which was a misdirection to the jury.
陳‍大律師引述案例The Queen v Law Wai Choi & Another [1997] HKLRD 555，刻意的不聞不問祇是「可以」(may) 推論一名被告人知道他管有的包裹的內容，但不等同被告人一定知情。潘‍法官用「唯一合理」此言顯示了不查看必然是知情，錯誤引導陪審團。

Mr Chan also pointed out that in the present case, the applicant had not disregarded, and that although she did not see how Paul put the brassieres into the rucksack, she did see that there were samples of brassieres inside.  It was extremely likely that the directions given by the judge would have caused the jury to miss out some reasonable grounds on which the applicant had not inspected the rucksack and to treat the applicant’s failure to inspect the rucksack with reasonable time and opportunities directly as the rationale of her having knowledge of the presence of dangerous drug inside the rucksack.
陳‍大律師亦指在本案而言，申請人亦非不聞不問，申請人雖無看見Paul將胸圍放進背囊的過程，但她看到背囊內確有胸圍貨辦。潘‍法官的引導極可能令陪審圍忽略了一些合理原因，令申請人不查證背囊，而將申請人在有合理時間及機會的情況下不對背囊查證此行為，直接視為申請人是知悉背囊內藏毒品的理據。

Mr Chan also complained that the judge had failed to point out to the jury that it might be due to the following reasons that the applicant had not checked thoroughly:
陳‍大律師亦投訴潘‍法官沒有向陪審團指出申請人有可能因下列理由不作詳細檢查：

the applicant and Terry were in a boyfriend and girlfriend relationship and so would not ask too much;
申請人與Terry是男女朋友關係，因此不會多問；

this was the third time that the applicant had contact with Paul, and a rucksack and brassieres had been involved previously;
申請人已是第三次與Paul接頭，以前亦曾涉及背囊及胸圍；

the applicant saw the brassieres inside the rucksack;
申請人見到背囊內的胸圍；

the applicant was not good in English and did not really understand what Paul said when dealing with the rucksack; and
申請人英語不好，不太明白Paul在處理背囊時所說的話；及

there were specific background and reasons for which the applicant did not thoroughly check or ask, and it was not that she simply disregarded without any basis.
申請人無作仔細檢查或查問有其個別背景原因，不是毫無原因的充耳不聞。

Mr Chan also submitted that it was extremely likely that the judge’s directions would have caused the jury to misunderstand that “if the applicant should have had reasonable doubt on the presence of dangerous drug inside the rucksack, it means that the applicant was in fact aware of the presence of the dangerous drug”.  He said that the judge should have explained to the jury that even if they accepted the applicant had disregarded this matter, they still had to be sure of the relation between such “disregard” and “knowledge”.
陳‍大律師指潘‍法官的引導極有可能令陪審團誤以為「假如申請人應對背囊內是否藏有毒品產生合理懷疑就等同申請人實際上知道毒品的存在」。他指潘‍法官應向陪審團說明即使他們接受申請人不聞不問，他們亦須肯定申請人此「不聞不問」與「知情」的關係。

Our consideration
本庭作出的考慮

Firstly, with respect, we do not agree that the judge had, as alleged by the applicant, refuted or attacked the defence immediately after referring to the defence counsel’s submissions.  The judge just pointed out that generally speaking, sometimes there was “tacit understanding” and it might not be necessary to make things clear verbally.  The judge said that the jury might consider whether the applicant had deliberately, in facing some conspicuous circumstances, disregarded and chosen not to ascertain, and whether the applicant was tacitly aware of the presence of the dangerous drug.  These are findings of facts for the jury to decide.
首先，本庭不認同上訴一方指潘‍法官在道出辯方大律師的陳詞後立刻反駁、評擊辯方說法。潘‍法官祇是指出以常理而言，有時候是有「心照不宣」的情況，不一定要明言。潘‍法官指陪審團可以考慮申請人是否故意對一些顯而易見的情況不聞不問，故意不去核實，又或申請人是否對毒品的存在一事心知肚明？這些是事實的裁定，由陪審團決定事實為何。

In respect of Mr Chan’s contention that the judge had said in the form of a statement that the only reasonable inference was that the applicant was aware of the presence of the dangerous drugs in the rucksack, with respect, we do not accept.  When the passage is read in context, it should not be a question mark after “are you satisfied that there is no reasonable doubt” because the sentence has yet come to an end.  The whole sentence was that the judge was pointing out to the jury whether they could be satisfied beyond reasonable doubt that, as a matter of common sense or on the facts, the only reasonable inference was that the applicant knew that there was dangerous drug in the rucksack.  The judge was not saying that the only reasonable inference must be that the applicant had the knowledge.
就陳‍大律師指潘‍法官以陳述式說唯一合理推論是申請人知悉背囊內有毒品，本庭不接納此論點。縱觀上文下理，在「大家係咪可以毫無合理疑點咁滿意」後不應有問號，因句子尚未完成，整句說話是潘‍法官向陪審團指出，他們能否在毫無合理疑點下滿意無論在一般常識或事實上，申請人知悉背囊內有毒品是唯一合理推論。潘‍法官不是指申請人知情必定是唯一合理推論。

Having considered that the judge had already given directions to the jury on the onus and standard of proof and pointed out clearly to the jury that the prosecution must prove the applicant knew of the presence of dangerous drug inside the rucksack, and that “mere suspicion is not enough”, she in fact did not direct the jury that failure to inspect under reasonable circumstances was equivalent to having knowledge.  In our view, the jury would not misunderstand that the applicant’s failure to inspect was tantamount to having the knowledge.
在考慮了潘‍法官在較早前已向陪審團作出有關舉證責任及標準的指引，及明確向陪審團指出控方必須證明申請人知悉背囊內有毒品，「淨係懷疑都唔足夠喎」，潘‍法官並無指引陪審團若申請人在有合理情況下仍不作查證便等同她是知情。本庭亦不認為陪審團會誤以為若申請人不作查證便等同她是知情。

Furthermore, although the judge did not sum up the reasons for the applicant’s failure to inspect, as what Mr Chan has done, viewing the summing up as a whole, the judge had summarized the defence case (including the facts favourable to the defence) to the jury concisely.  She was not biased towards the prosecution and did state the cases of both sides clearly to the jury.
再者，雖然潘‍法官並無如陳‍大律師陳詞般將申請人不作查問的理由歸納在一起，但縱觀整篇總結指引，潘‍法官有扼要將辯方案情 (包括對辯方有利的案情) 告知陪審團。潘‍法官亦無偏幫控方，她將控辯雙方的說法清楚向陪審團道出。

We would like to take this opportunity to say that although in cases involving dangerous drugs, proof of “constructive knowledge” on the part of the defendant by the prosecution is sufficient to show the defendant’s knowledge, as Bokhary JA (as he then was) pointed out in the above case of Law Wai Choi (at page 561D), such knowledge of a material circumstance is rarely relevant and its relevance is confined to rare cases.
本庭在此一提，雖然在毒品案件，若控方能證實被告人有「推定知情」(constructive knowledge) 是可足以顯示被告人知情，但正如當時仍是上訴庭法官的包‍致‍金法官在上述Law Wai Choi (第561 頁D 行) 指出，「推定知情」有關鍵性的情況是罕見旳，而有關鍵性此情況亦局限於少數案件 (But such knowledge is rarely relevant.  And its relevance is confined to rare cases …)。

If all the circumstances faced by a defendant were very suspicious and he deliberately shut his eyes to the circumstances at the material time, it might be construed that he had the knowledge but this is not necessarily the only finding (see R v Griffiths (Leslie George) (1974) 60 Cr App R 14).
若一名被告人面對的所有情況是非常可疑，而他故意對當時的情況視若無睹 (shut his eyes)，他可以被裁斷為知情，但這並非必然的裁斷 (參閱案例R v Griffiths (Leslie George) (1974) 60 Cr App R 14)。

Since “constructive knowledge” is rarely involved in dangerous drugs cases, unless the facts clearly showed that the defendant had deliberately turned a blind eye to the suspicious circumstances, it is not appropriate for judges to give general directions to the jury on “constructive knowledge”.
基於毒品案件涉及「推定知情」的情況並不常見，因此除非案情明確顯示被告人是故意對可疑的情況視若無睹，法官不宜向陪審團作出有關「推定知情」的一般指引。

This ground of appeal fails.
此上訴理由不成立。

Ground (2)
理據 (二)

The trial judge erred in saying that in the present case, “the record of interview contains parts incriminating (the applicant)”, which is extremely likely to have caused the jury to misunderstand that:
原審法官錯誤地指本案的「會面紀錄入面包含咗顯示 (申請人) 有罪嘅部份」，令陪審團極可能誤以為：

the content of the record of interview (exhibit P33) really suggested that the applicant had admitted her guilt or reflected she was guilty;
會面紀錄 (證物P33) 的內容真的代表申請人承認有罪或反映她有罪；

the incriminating part in the mixed statement has definitely represented or included all elements of the offence; and
混合供詞的罪已部分一定代表或包含所有罪行元素；及

taking the whole directions together into the consideration, the jury were actually only required to consider if the explanations in exhibit P33 were credible or might be credible and were not required to consider if there was any doubt in the prosecution case.
連同整個引導詞在考慮，陪審團實則祇須處理申請人在證物P33中的解釋是否可信或可能可信，而無須考慮控方的案情是否內含疑點。

Mr Chan complained that the judge had failed to point out to the jury that the applicant simply exercised her right when she had “nothing to say” under arrest and caution at the airport.  Since the judge had on the first day of the directions criticized the applicant for “disregarding”, the jury might view the applicant’s not responding upon being arrested unfavourably against her.
陳‍大律師投訴潘‍法官未有向陪審團指出申請人在機場被捕及警誡下她「冇嘢講」是她的權利。基於潘‍法官在首天的引導詞評擊申請人「不聞不問」，申請人在被捕後不作回應，此舉可能令陪審團對申請人有不利的想法。

Mr Chan in particular criticized the judge for saying that the record of interview “contained parts incriminating her”. He submitted that it was extremely likely that such remark would cause the jury to misunderstand that the applicant had admitted her guilt during the interview or that the content of the interview reflected that she was guilty.  It is an undisputed fact that dangerous drug was found inside the rucksack carried by the applicant.  The content of the record of interview, apart from the undisputed facts, did not contain anything showing the applicant’s knowledge of the drug.  Such misdirection given by the judge was extremely likely to have caused the jury to misunderstand that the parts of the record the judge had pointed out to them must support the inference of the applicant’s knowledge of the dangerous drug, or that the contents of the interview must contain parts representing the applicant’s “guilt”.
陳‍大律師特別批評潘‍法官指會面紀錄「包含咗顯示佢有罪嘅部份」極可能令陪審團誤以為申請人在會面時承認有罪或會面內容反映她有罪。申請人揹著的背囊內找到毒品是不爭的事實，會面紀錄的內容除了包括控辯雙方不爭議的事實外，並無任何顯示申請人對毒品知情的內容。潘‍法官此錯誤引導，極可能令陪審團誤以為潘‍法官向他們指出紀錄的內容部分，必然支持推定申請人對毒品知情，或陪審團以為會面內文一定有代表申請人「有罪」的部分。

Mr Chan also complained that the judge had failed to point out the applicant’s good character would tend to enhance the credibility of what the applicant had said in the record of interview.
陳‍大律師亦投訴潘‍法官沒有向陪審團指出申請人的良好品格，有助於申請人在會面紀錄所言的可信性。

Finally, Mr Chan submitted that the judge, in directing the jury, stated that if they thought that what the applicant had said was true, or might be true, or cast doubt on the prosecution case, they should find the applicant not guilty.  As a result of this statement, the jury might misunderstand that they were only required to consider if what the applicant had said in the record of interview was credible or might be credible and not required to consider if there was any doubt in the prosecution case.
最後，陳‍大律師指潘‍法官引導陪審團若他們認為申請人所言屬實或可能屬實，又或她所言令陪審團對控方案情有疑點，便須判申請人無罪，導致陪審團可能誤會他們祇須處理申請人在會面紀錄所言是否可信或可能可信，而無須考慮控方的案情是否內含疑點。

Our considerations
本庭作出的考慮

The judge gave directions as follows (pages 21S to 22G in the appeal bundle):
潘‍法官的指引如下 (上訴文件冊第21 頁S 行至22 頁G 行)：

“You would remember that the defendant has not committed any offence, and has no criminal record and no conviction before this incident. Of course, good character cannot by itself provide a defence to a criminal charge, but it is evidence which you should take into account in her favour in the following ways. In the first place, although the defendant has elected not to give evidence before you, she did, as you know, give an explanation to the Customs in the interview. The defendant’s statement to the Customs officers, namely the record of interview, contains incriminating parts and explanations and excuses.  You must consider the whole of the statement in deciding where the truth lies.  You may feel that the incriminating parts are more likely to be true – for why else would she have made them[?]  Or you may feel that there is less weight to be attached to her excuses and explanations, for they were not made on oath, or have not been repeated under oath, and have not been tested by cross-examination.  The final question is your assessment on the whole of the record of interview.  You ought to have a very comprehensive consideration of the contents before deciding which part is credible, which part is not credible, or all are credible, or all are not credible.
「你哋會記得被告喺呢件事之前冇犯事、冇刑事紀錄、冇前科。當然良好品格本身並不能作為刑事控罪嘅免責辯護理由，但係卻係你哋應該視為對被告有利嘅證據，而應該用以下嘅方式處理，首先，雖然被告選擇不在你哋面前作供，但係正如你哋所知，佢喺會面入面有向關員作出解釋，而被告向關員所作出嘅陳述，即係嗰個會面紀錄入面包含咗顯示佢有罪嘅部分，以及一啲解釋、辯解嘅部分，你哋必須考慮陳述嘅全部內容，以找出真相。你哋或者會覺得顯示佢有罪嘅部分屬真實嘅機會較大，如果唔係，佢點會咁講。又或者你哋會認為嗰啲辯解、解釋嘅部分可以不必過份重視，因為嗰啲辯解嘅部分唔係喺宣誓之下作出嘅，亦並非喺宣誓之下重申嘅，同時亦都冇透過盤問嚟驗證，最後嘅問題都係你哋對嗰個錄影會面紀錄整體內容嘅評估，你哋要好全面咁樣考慮內容先至決定邊一部分可信，邊一部分唔可信，抑或全部都可信，抑或全部都唔可信。

In considering the weight to be attached to the excuses, namely the explanations, you should bear in mind that these explanations were made by a person of good character, meaning that she had not committed any crime before, and take that into account when deciding whether you can believe them. In the second place, the fact that the defendant is of good character may mean that she, as a person who has not committed any crime, is less likely than otherwise might be the case to commit this crime, however, I have to emphasize that for these matters which are in the defendant’s favour, it is entirely up to you to decide how much regard you should have and what weight you should give.”  (Emphasis added)
你哋喺考慮入面嘅辯解，即係解釋部分方面，重視嘅程度嘅時候，應該緊記呢啲解釋係具有品格良好嘅人作出嘅解釋，因為佢之前冇犯事吖嘛，咁你哋決定係咪相信呢啲解釋嘅時候，應該顧及呢一點。其次，被告良好品格，作為一個從未行差踏錯過嘅人呢一點可能意味住佢干犯本案有關嘅控罪嘅可能性會比一個冇具有良好品格嘅人為低，但係我強調，你哋對呢啲有利於被告嘅事項有幾重視、給予幾多比重，全部由你哋自行決定。」 (本庭加以強調)

It is true that the directions that the judge gave to the jury on the record of interview are similar to the specimen directions issued by the Judicial Studies Board, however, in respect of the facts in the present case, the phrase “contains incriminating parts” adopted by the judge may not be absolutely suitable and appropriate.  It is to be noted that the applicant in the present case did not dispute that a pack of dangerous drug had been found from the rucksack carried by her, and her defence was that she had absolutely no knowledge of the presence of that pack of dangerous drug inside the rucksack.  The applicant did not, in the record of interview, admit that she knew the presence of that pack of stuff or of a pack of dangerous drug inside the rucksack.  The judge was only required to give directions on the exculpatory explanations given by the applicant.
誠然，潘‍法官就會面紀錄向陪審團作的指引跟司法人員培訓委員會發出以供參考的陪審團指引相若，但以本案案情而言，潘‍法官採用了「顯示被告人有罪的部份」並不完全恰當貼切。須知在本案申請人不爭議關員在她揹著的背囊找到一包毒品，她的答辯理由是她根本不知該包毒品藏在背囊內。申請人沒有在會面紀錄中承認她知悉背囊內有該包東西存在，或她知悉背囊內有一包毒品。潘‍法官祇須就申請人所作的開脫解釋作出指引。

The specimen directions issued by the Judicial Studies Board are intended to assist judges, and judges are required to adapt them suitably with reference to the facts and evidence of the individual case.  Very often, using “parts incriminating the defendant” is not suitable and “parts unfavourable to the defendant” would be more appropriate.
司法人員培訓委員會發出的有關指引旨在協助法官，但法官必須因應個別案件將基本指引加以適當調整，使指引更能配合案情證據。本庭認為很多時候，用「顯示被告有罪的部份」並不恰當，可能用「對被告人不利的部份」會較為貼切。

Nevertheless, viewing the case as a whole, the judge had clearly pointed out to the jury the cases of both sides and the explanations given by the applicant in the record of interview.  She had also correctly directed the jury as to how to deal with the answers given by the applicant in the record of interview.  In our view, although the phrase “parts incriminating [the applicant]” was used in the directions, the impact was not significant as far as the present case is concerned.
不過，整體而言，潘‍法官已清晰地向陪審團指出控辯雙方的立場、申請人在會面紀錄內所作的解釋，她亦正確指引陪審團如何處理申請人在會面紀錄給予的答案。本庭認為雖然指引用了「顯示 [申請人] 有罪的部份」這詞，在本案而言，影響不大。

As to the judge’s failure to point out to the jury specifically that the applicant had the right to remain silent in respect of her saying having “nothing to say” at the time of arrest, we are of the view that in all circumstances of the present case – in particular that the applicant had attended the video-recorded interview and answered questions voluntarily, the fact that the judge did not specifically point out that it was the applicant’s right to remain silent is not essential here.
就申請人在被捕時說「冇嘢講」而潘‍法官無特別向陪審團指出申請人有權保持緘默，本庭認為以本案所有情況而言 — 尤其是申請人自願在警誡下接受錄影會面、回答問題，潘‍法官無特別向陪審團指出申請人有保持緘默此權利，在本案是無關重要的。

Finally, with respect, we do not agree with Mr Chan that the judge misdirected the jury in respect of the applicant’s clear record.
最後，本庭不認同陳‍大律師指潘‍法官就申請人無刑事紀錄此範疇向陪審團的指引有錯誤之處。

The judge, after pointing out that the applicant had a clear record and no previous conviction, stated that although the applicant had not testified in court, she had given answers in the record of interview.  In directing the jury on considering the applicant’s explanations and how much weight should be attached, the judge told them to bear in mind that the explanations came from the applicant who was of good character, and that they should take that into account in deciding whether to believe the applicant’s explanations.  So obviously, the judge had given directions on the positive effect of the applicant’s good character on the credibility of her explanations in the record of interview.
潘‍法官在指出申請人先前無犯事、無前科後，繼而指出申請人雖無出庭作證，但曾在會面記錄作答，潘‍法官引導陪審團在考慮申請人的解釋及是否給予重視時，須緊記有關解釋來自一名品格良好的申請人，他們在決定是否相信申請人的解釋時，應顧及申請人的良好品格，明顯潘‍法官已就申請人的良好品格有助於她在會面紀錄所作的解釋的可信性作出了指引。

Mr Chan complained that the judge misdirected the jury by suggesting that the applicant’s explanations had to cast doubt on the prosecution case.  With respect, we do not agree.  The judge directed as follows (page 26N-Q in the appeal bundle):
就陳‍大律師所投訴潘‍法官錯誤引導陪審團，指要在申請人的解釋令他們對控方案情有疑點此論點，本庭亦不同意。潘‍法官的指引如下 (上訴文件冊第26 頁N 行至Q 行)：

“Even if you are sure that the defendant’s explanations are not true, you cannot find her guilty right away, and you are required to consider the prosecution evidence carefully so that you are sure the defendant had knowledge of the dangerous drug before you can find her guilty.  If, having considered all the evidence in the present case, you are of the view that what the defendant has said is true, or may be true, or what she has said cast doubt on the prosecution case, then you have to return a verdict of not guilty.  You must be sure that the prosecution has proved beyond reasonable doubt that the defendant had the knowledge before you can find her guilty.  If there is any reasonable doubt, the defendant must be given the benefit of such doubt and found not guilty.”
「如果各位認為被告嘅解釋肯定唔係事實嘅，你哋都唔可以即時判佢有罪，你哋需要小心考慮控方嘅證據，要確信被告對嗰啲毒品係知情嘅，先可以判佢罪名成立。如果你哋各位衡量過本案所有嘅證供之後，認為被告所講嘅嘢係真嘅，或者可能係真嘅，又或者佢所講嘅嘢令大家對控方嘅案情有疑點嘅話，你哋都要作出冇罪嘅裁決，你哋要肯定控方喺毫無合理疑點之下，證明被告確係知情，先至可以入佢罪，如果有合理嘅疑點，要將疑點嘅利益歸於被告，而判佢冇罪。」

Obviously, the judge had correctly pointed out that the prosecution has to prove beyond reasonable doubt that the applicant had knowledge of the presence of the dangerous drug before she could be found guilty.  We do not think that the jury would have misunderstood that they were only required to consider if the applicant’s explanations in the record of interview raised any doubt instead of whether there was any doubt in the prosecution case.
明顯潘‍法官正確指出控方必須在毫無合理疑點之下，證明申請人對毒品的存在是知情才可判她有罪。本庭不認為陪審團會誤以為他們祇須處理申請人在會面紀錄的解釋會否產生疑點，而不考慮控方案情是否有疑點。

This ground of appeal also fails.
此上訴理由亦不成立。

Ruling
裁定

Since the grounds of appeal advanced by the applicant are not totally unarguable, in particular of the judge having told the jury the applicant’s record of interview contained “parts incriminating [the applicant]”, we granted the applicant leave to appeal against conviction.  Nevertheless, we do not agree that the grounds are substantiated.  In view of the above reasons, the appeal is dismissed.
由於上訴一方提出的上訴理據並非完全無爭拗之處，尤其是就潘‍法官向陪審團說申請人錄影會面內有「顯示 [申請人] 有罪的部份」此範疇，本庭批准申請人就定罪提出的上訴許可申請。不過，本庭不同意理據可以成立。基於上述理由，本庭駁回上訴。

Ground of appeal against sentence
判刑上訴理據

The applicant, acting in person, submitted that the sentence was excessive and reiterated she had been wrongly accused.
無律師代表的申請人陳詞指判刑太重，重申她是被冤枉的。

Applicant’s background and submission in mitigation
申請人的背景及求情陳詞

The applicant is aged 41, married, has a 15-year-old daughter with her husband.  In mitigation, the defence submitted this was the first time that she broke the law and asked the judge for a lenient sentence.
申請人41 歲，已婚，與丈夫育有一名年15 歲的女兒。辯方求情時指申請人是首次鋌而走險犯案，希望潘‍法官輕判。

Reasons for sentence
判刑理由

Having recounted the facts of the case, the applicant’s background and submission in mitigation, the judge said that she adopted a starting point of 18½ years’ imprisonment after considering the type and nature of the dangerous drug, the facts of the case and the sentencing guidelines, and that since the case involved cross-border criminal activity which was an aggravating factor, the term had to be raised to 20 years.  The applicant was convicted after trial and hence could not enjoy any discount on sentence.  Therefore, the applicant was sentenced to a term of 20 years’ imprisonment.
潘‍法官道出案情、申請人的背景及求情陳詞後，指考慮了毒品的種類、性質、案情及量刑指引後，以18½ 年為量刑起點，因案情涉及跨境犯罪此加刑因素，將刑期向上調至20 年。申請人經審訊後被定罪，不獲減刑。故此判申請人監禁20 年。

We have considered all the facts in the case and the applicant’s background and come to the view that although the sentence imposed by the judge can be said to be severe, it is not manifestly excessive.  Therefore we dismiss the applicant’s application for leave to appeal her sentence.
本庭考慮了所有案情及申請人的背景後，認為潘‍法官的判刑雖可說是嚴峻，但並非明顯地過份嚴苛，因此本庭駁回申請人就判刑提出的上訴許可申請。

Charles J Chan, instructed by Messrs To, Lam & Co, assigned by Director of Legal Aid, for the Applicant (appeal against conviction)
答辯人：由律政司高級檢控官招秉茵代表香港特別行政區

Yang Yulan, the Applicant, in person (appeal against sentence)
申請人：由法律援助署委派杜林律師事務所轉聘陳永豪大律師代表(就定罪上訴申請)

Samantha Chiu, Senior Public Prosecutor of the Department of Justice, for the Respondent
無律師代表，親自出庭應訊 (就判刑上訴申請)