Hon 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

The applicant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong.  She pleaded not guilty.  After trial before Deputy High Court Judge Anthea Pang (as she then was) sitting with a jury, she was convicted on 12 July 2012 and was sentenced to 20 years’ imprisonment.  She applies for leave to appeal the conviction.
申請人被控一項「販運危險藥物」罪，違反香港法例第134 章《危險藥物條例》第4(1)(a) 及 (3) 條。申請人否認控罪，由高等法院暫委法官彭‍寶‍琴 (當時官階) 連同陪審員審理。經審訊後，申請人在2012 年7 月12 日被裁定罪名成立，判監24 年。申請人不服定罪，提出上訴許可申請。

Particulars of offence
罪行詳情

The particulars of offence stated that on 6 September 2011 the applicant unlawfully trafficked in 2.29 kg of a solid containing 1.60 kg of cocaine at the Central Post Office, Nathan Road, Yau Ma Tei, Kowloon.
罪行詳情指申請人在2011 年9 月6 日，在位於九龍油麻地彌敦道的中央郵政局，非法販運內含1.60 公斤可卡因的2.29 公斤固體的危險藥物。

Prosecution case
控方案情

The prosecution case was by and large not in dispute.
控方大部分案情是不受爭議的。

Two parcels declared to contain women’s shoes arrived in Hong Kong from Brazil by air on 2 September and 4 September 2011 respectively.  However, the two parcels contained instead two glass bottles resembling wine bottles (“wine bottles”) which were subsequently confirmed to contain a mixture of solid and liquid cocaine.
在2011 年9 月2 日及4 日，分別有報稱內有女裝鞋的郵包從巴西空運到港，但兩個郵包內藏有的並非女裝鞋，而是兩個類似酒樽的玻璃瓶 (「酒樽」)，內有其後證實為可卡因的固體及液體混合劑。

On 6 September 2011, the applicant went to the Kowloon Central Post Office in Nathan Road, Yau Ma Tei to collect the said two parcels.  She showed a staff member of the post office the letters of authorization and copies of passports of the two recipients of the parcels (Singh and Prince).  She opened the parcels and put the four wine bottles therein into a reusable bag she brought with her.  Meanwhile, she more than once talked to others in English on her mobile phone.
申請人在2011 年9 月6 日前往油麻地彌敦道的中央郵政局領取該兩個郵包。申請人當時出示了兩名收件人 (Singh及Prince) 的授權書及護照副本給郵局職員。申請人打開郵包，將內裡的4 個酒樽放進她自攜的環保袋中，期間不止一次以手提電話用英語與人交談。

The Customs & Excise Officers who kept the applicant under surveillance in the vicinity stopped and arrested her when she was leaving the post office with the four wine bottles.  When she was cautioned, the applicant became emotional and started to cry.  She told the Customs & Excise Officers that she was collecting the two parcels for someone else and that she did not know what they contained.  She said she intended to take the two parcels to Mainland China where she would hand them to someone else.
當申請人攜帶該4 個酒樽離開郵局時，被在附近監視的海關人員截停拘捕。當海關人員警誡申請人時，申請人情緒開始激動及哭泣。申請人向海關人員指她是代他人提取該兩個郵包，她並不知悉郵包內藏有甚麼。她打算將兩個包裹帶到中國內地交給他人。

Later, the applicant attended a video-recorded interview under caution.  She said she “collected wine samples” for one Charles, a friend of hers whom she came to know on the internet.  Charles used to be her boyfriend.  Not being a Hongkonger, Charles could not come to Hong Kong.  The recipients of the parcels were not in town either.  As Charles was in urgent need of the wine samples to do business and was worried about other people taking out the wine samples, and so the applicant helped Charles collect the wine samples.  The applicant did not know the recipients and did not receive any reward for collecting the wine samples for Charles.
申請人其後在警誡下接受錄影會面。申請人表示她是幫一名在網上認識的朋友Charles「攞酒辦」。Charles以前跟申請人是男女朋友關係。因Charles不是香港人，不能前來香港。收件人亦不在港。Charles急於要酒辦做生意，他怕他人取出酒辦，故申請人幫Charles前往提取酒辦。申請人並不認識收件人。她替Charles取酒辦並沒有報酬。

The applicant said that the parcel boxes were too big and so, having obtained consent from Charles, she took out the four wine bottles and put them into a bag.
申請人指因郵包箱太大，故此在取得Charles同意後，便將4 個酒樽拿出來並放進袋內。

The applicant stated that at that time she did not open the polyfoam bottle packaging to see what the bottles contained because she believed they contained wine.
申請人指她當時並無打開包裝樽身的發泡膠盒，看看樽內裝了些甚麼，因為她相信樽內的是酒。

The applicant said that she did not know the wine bottles contained drug.
申請人指她不知悉酒樽內的是毒品。

Later, the applicant’s family members passed on to Customs & Excise records of her chats with others in an internet chat room.  Those records were also adduced as evidence.
其後，申請人的家人將申請人在電腦聊天室與他人的談話紀錄交了給海關。聊天室紀錄亦成為呈堂證物。

Defence case
辯方案情

The applicant elected to testify at trial.  She basically adopted what she had said during the video-recorded interview and reiterated that she did not know  the wine bottles contained a dangerous drug.
申請人選擇作證。她基本上採納她在錄影會面所言，並重申她並不知悉酒樽內的是危險藥物。

The applicant explained that she came to know Charles in October 2009 on a social website called TAGGED.  She met Charles, who claimed to run a red wine business, in Shenzhen and did not feel anything wrong about him.  Later, they became lovers.  In early October 2010, the applicant collected a wine sample from DHL and took it to the Mainland for Charles, and they even consumed that wine sample together.  Around November 2010, the applicant met another male called Faith, following which her relationship with Charles “cooled off”.
申請人解釋她與Charles在2009 年10 月在TAGGED交友網站認識，並曾與Charles在深圳見面，覺得Charles自稱做紅酒生意無可疑，繼後雙方發展成為男、女朋友。申請人曾在2010 年10 月初替Charles從DHL提取並帶了一支酒辦往內地，她更與Charles飲用了該支酒辦。其後在2010 年11 月左右，申請人認識了另一名男子Faith，便跟Charles「淡咗」。

The applicant said that in August 2011 she gave Faith “the silent treatment” in August 2011 and knew that she might break up with him.  As she did not like being bored, she started seeing Charles again.
申請人指後來在2011 年8 月，她與Faith「冷戰」，期間她知她可能會與Faith分手，她又怕悶，便再次與Charles交往。

The applicant said that she heard there were black people on the Mainland who engaged in drug business, and she wondered whether Charles was one of them.  Therefore, she asked Charles in the chat room “looking for someone help you on your drug business[?]” in order to “bluff him”.  At that time, Charles replied, “baby no”.  Thereafter, the applicant put aside her suspicion as she felt she had no evidence to prove that Charles was engaged in drug business and there were more than 200,000 black people on the Mainland.
申請人指稱她聽人說及在內地有黑人做毒品生意，她不知Charles會不會是其中一個，故此在聊天室問Charles “looking for someone help you on your drug business” 去「大佢」。Charles當時回答她 “baby no” 。其後申請人覺得自己無證據指Charles是做毒品生意，而內地有20 多萬黑人，便不再存著懷疑。

The applicant said to Charles in the chat room:
申請人在聊天室跟Charles說：

“You know the time I be with you, I love you with my heart, but I find out you are using me to collect something for you, why you do this to me that time?”
“You know the time I be with you, I love you with my heart, but I find out you are using me to collect something for you, why you do this to me that time?”

The applicant indicated that she said so because she thought Charles considered her a “gopher”.
申請人指她如此說是她覺得Charles當她是「阿四」。

The applicant also said the following to Charles in the chat room:
至於為何申請人在聊天室向Charles說：

“What I worried is the police come and catch me.”
“What I worried is the police come and catch me.”

“If there have something bad, cause I don’t know.”
“If there have something bad, cause I don’t know.”

“I protect myself.”
“I protect myself.”

As to why she said these, the applicant pointed out that she considered there might be a problem about duty not having been paid on the wine samples, and “one might also be caught for not paying duty”.
申請人指她覺得酒辦可能含有未完稅的問題，「未交稅都有可能會畀人捉」。

The applicant said she eventually agreed to collect the two parcels in question for Charles.  She said she believed they contained wine samples and she knew nothing about the drug inside.
申請人指她最終答應了替Charles前往提取該兩個郵包。她相信內藏有酒辦，她對內藏的毒品全不知情。

The defence also called as witnesses her former colleague(s), her superior at the real estate agency for which she worked at the material time, and her elder sister’s boyfriend.  Their testimonies were essentially to the effect that the applicant was a simple-minded and trusting person but was able at work and not “brainless”.  Her elder sister’s boyfriend also confirmed that she had been with Faith at one stage.
辯方亦傳召了申請人的舊同事、申請人在事發時工作的地產公司上司及她姊姊的男友作證。基本上各人的證言是顯示申請人思想單純，很容易相信他人，但有工作能力，並非「冇腦」之人。申請人曾與Faith交往一事亦獲其姊姊男友證實。

Additional evidence
新增證據

The applicant applied by motion on 20 June 2013 for production of additional evidence, which consisted of records of messages sent by someone called Charybrown2004 to the applicant in a chat room between 23 July 2012 and 23 September 2012 subsequent to the applicant being convicted of the offence.  The contents include:
申請人在2013 年6 月20 日動議，申請將她在被判罪後一名叫Charybrown2004的人在聊天室向申請人發送訊息的紀錄作為新增證據。有關日期是2012 年7 月23 日至2012 年9 月23 日，內容包括：

“I am so sorry for what happened to you last year”
“I am so sorry for what happened to you last year”

“it is all my [fault]”
“it is all my [fault]”

“my friend lied to me”
“my friend lied to me”

“I want to pay you for the trouble my friend put you into”
“I want to pay you for the trouble my friend put you into”

The applicant submitted that if the jury had had the opportunity to consider such evidence, they would very likely not have convicted her of the offence.
申請人指若陪審團有機會考慮有關證據，他們很有可能不會將她定罪。

The respondent did not object to the production of additional evidence.
答辯一方不反對新增證據呈堂。

Having considered the provisions on additional evidence under section 83V of the Criminal Procedure Ordinance, Cap. 221 of the Laws of Hong Kong, we allowed the application.
本庭考慮了香港法例第221 章《刑事訴訟程序條例》第83V 條就新增證據的條文後，批准申請。

Grounds of appeal
上訴理由

Mr. Wong, Counsel for the applicant, has advanced three grounds of appeal in support of the contention that the conviction is unsafe and unsatisfactory.  We find it necessary to deal only with the first ground of appeal.
雖然申請人代表黃‍志‍偉大律師提出3 項上訴理由指定罪不安全及不穩妥，本庭祇須處理上訴理由‍一。

This ground of appeal is that the directions given by the trial judge to the jury were unbalanced and unfair, as a result of which the applicant did not receive a fair trial.
此上訴理由是指原審法官在引導陪審團時未能做到平衡公允，導致申請人的審訊不公。

Mr. Wong submits that:
黃‍大律師陳詞指：

主控在結案陳詞中強調申請人的心態是“被告人已經懷疑呢個所謂 [CHARLES] 嘅人可能是販運毒者”，“佢應該有戒心”，“佢自己都知道呢個CHARLES可能係販毒者嚟喎”，“如果被告人諗到，啲酒可能有問題，佢點解會諗唔到啲酒除咗未完稅之外，可能唔係酒嚟喎，可能係毒品嚟喎”，“佢冇CHECK，好明顯因為佢知道裡面不是紅酒”及“如果你有少少懷疑，或者你應該有合理懷疑，你都會打開去睇睇”都不是等同法律要求的“知情”。但原審暫委法官在引導陪審團時只要求及指出：—	“(i)	 In his final submission, prosecuting counsel emphasized the applicant’s state of mind, ‘the defendant had already suspected that this so-called [CHARLES] might be a drug trafficker’, ‘she should have been wary’, ‘she herself knew that this CHARLES might be a drug trafficker’, ‘if the defendant thought that there might be something wrong with the wine, why wouldn’t she have thought that, apart from duty not having been paid, the wine might be a drug instead of wine’, ‘she did not check, obviously because she knew it was not red wine inside’ and ‘had you harboured slight suspicion, or if you should have had reasonable suspicion, you would have opened it to take a look’.  None of these is equivalent to ‘knowledge’ as required by law.  However, in directing the jury, the deputy judge  merely pointed out that the following requirements: -
「(i)

As to the law, you must follow the directions and explanations given to you.  In other words, in case of differences between what counsel said and what I said, you must accept and follow the directions on the law that I give you.
喺法律方面，各位一定要以向大家所出嘅指引同理解為準，換言之，若果大律師所講嘅同我所講嘅有分別，你哋必須接納同埋依循我俾你哋就法律方面嘅指引。

I shall not repeat the final submissions made respectively by prosecuting and defence counsel that you heard yesterday.  If you agree with their views, you may of course take them into consideration; otherwise, you should ignore those views and apply your own inclinations and views when you consider the evidence adduced in the present case.
至於控辯雙方大律師嘅結案陳詞，你哋琴日已經聽咗，我唔會喺度重複，若然你哋同意佢哋所提觀點，你哋當然可以作出考慮；若然你哋唔同意佢哋嘅觀點，咁就唔好理會，依照你哋自己嘅心意，你哋自己嘅睇法去考慮本案嘅證據。

There are three elements to possession: first, the defendant must have knowledge, which means she knew she was in possession of a dangerous drug or drug.  I repeat, the defendant must have knowledge, which means she knew she was in possession of a dangerous drug or drug;
管有本身包括三個 [元] 素：第一，被告人必須係知情者，即係佢知道佢管有嘅係危險藥物或者毒品，我再重複，被告人必須係知情者，即係佢知道佢管有嘅係危險藥物或者毒品；

In respect of the defendant’s chat room records, prosecuting counsel emphasized certain parts thereof in his final submission, including: -
被告人在聊天室紀錄這方面令到主控在結案陳詞中強調的說法包括：—

“causes you are looking for someone help you and your drug business.”	(da)	‘causes you are looking for someone help you and your drug business.’
(da)

“I am stupid, but I can see what is true.”	(db)	‘I am stupid, but I can see what is true.’
(db)

“ask me to collect something for you, I think you are using me.”	(dc)	‘ask me to collect something for you, I think you are using me.’
(dc)

“what I worried is the police come and catch me.”	(dd)	‘what I worried is the police come and catch me.’
(dd)

However, the deputy judge never directed the jury as to whether what prosecuting counsel emphasized as the applicant’s state of mind was different from the ‘knowledge’ that she referred to, and whether what prosecuting counsel suggested was equivalent to ‘knowledge’.  Coupled with the fact that the jury was asked to consider whether they agreed with prosecuting counsel or not, this might have caused them to mistakenly conclude that the applicant’s state of mind that [she] ‘should have known’, ‘should have understood’ or ‘should have checked’, which fell short of ‘knowledge’ in law, was also sufficient to support a conviction.  The chat room records showed that the applicant raised doubts about CHARLES.  The failure to mention all such things, coupled with the sheer reference to those recorded doubts which plainly showed that the applicant’s state of mind was one of suspicion not knowledge, might have caused the jury to think that what prosecuting counsel had emphasized and its possibly misleading [effect] were all the more powerful and compelling.”
但原審暫委法官從來都沒有引導陪審團主控以上強調申請人心態這個說法與她所說“知情”是否有分別，主控的說法是否等同“知情”，更加要求陪審團對於主控的說法作出同意或不同意的考慮是會令到陪審團有可能錯誤認定申請人心態低於法律上“知情”這個要求包括“應該知”“應該明”或“應該CHECK”都足以定罪。申請人在聊天室紀錄質疑CHARLES 的說法，沒有指出這種種加上只引述質疑正正顯示申請人心態是有疑問不是已經知情，令陪審團有可能覺得主控的強調及可能產生的誤導更加強而有力。」

Discussion
討論

In her chat room conversations with Charles, the applicant had said things which appeared to be unfavourable to herself, such as “looking for someone help you on your drug business”, “… asked me to collect something for you…”, and also “what I worried is the police come and catch me” etc.  In all circumstances of this case, if the jury did not believe the explanation she gave in the court, the jury would very likely draw the only reasonable inference that the applicant knew that the bottles contained a dangerous drug.
申請人自己在聊天室跟Charles說“looking for someone help you on your drug business”，“…asked me to collect something for you…”, 又提及“what I worried is the police come and catch me”等等看來對她不利的說話，若陪審團不相信她在庭上所作的解釋，以本案的所有環境情況而言，陪審團大有可能作出唯一合理的推論，就是申請人知悉酒樽內藏的是危險藥物。

There is no doubt that prosecuting counsel said in his final submission that “she did not check, obviously because she knew it was not red wine inside” and that “had you harboured slight suspicion, or if you should have had reasonable suspicion, you would have opened it to take a look”.  Prosecuting counsel appeared to be pointing out to the jury that, from the applicant’s conduct of deliberately not opening the wine bottles to take a look, an inference could be drawn that the applicant knew what the bottles contained.
無可置疑，主控在結案陳詞時曾說「佢冇check，好明顯因為佢知道裡面不是紅酒」、「如果你有少少懷疑，或者你應該有合理嘅懷疑，你都會打開去睇睇」。主控看來是向陪審團指出申請人故意不打開看看此行徑，是可用作推斷申請人對酒樽內所藏為何物是知情的。

The only issue in the present case was whether the applicant had “knowledge”.  The judge must make it clear to the jury that mere suspicion was not enough and that the prosecution had to prove that the applicant knew the wine bottles contained a dangerous drug.  In light of the above submission from prosecuting counsel, it was necessary for the judge to clearly point out to the jury that mere failure to examine the wine bottles or “to check” was not by itself equivalent to the applicant having knowledge of what the wine bottles contained.
在本案，唯一的爭議是申請人是否「知情」。法官須明確告知陪審團單單懷疑是不足夠的，控方必須證明申請人知悉酒樽內藏有危險藥物。在主控作出上述陳詞後，法官有必要明確向陪審團指出單單無檢視酒樽、「冇check」此等行為，本身不等同申請人知悉酒樽內所藏為何物。

In the present case, the judge had more than once reminded the jury that the prosecution bore the burden of proof and had to prove that the applicant knew the bottles contained a dangerous drug.  However, after prosecuting counsel made the above submission, the judge did not make it clear to the jury that mere suspicion was not enough, and this might have misled the jury into thinking that if the applicant had harboured slight suspicion but had not opened the polyfoam boxes to see what the wine bottles contained, this would be equivalent to her having knowledge.
在本案，法官雖不止一次提醒陪審團舉證責任在控方，控方必須證明申請人知悉酒樽內藏的是危險藥物，但在主控作出上述陳詞後，法官並無向陪審團明確指出單單懷疑是不足夠的，可能令陪審團誤以為申請人有少少懷疑而無拆開發泡膠盒看看酒樽內所藏為何物，便等同她是知情。

For the above reasons, the conviction is in our view unsafe.  We grant the applicant leave to appeal the conviction and, treating the hearing of the application as the appeal proper, we allow the appeal, quash the conviction and set aside the sentence.
基於上述理由，本庭認為定罪不安全。本庭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。本庭判令上訴得直，撤銷定罪及監禁刑期。

We will hear submissions as to whether there should be a re-trial.
本庭會就案件應否重審聽取陳詞。

Mr. Eddie Sean, Senior Assistant Director of Public Prosecution, for the Respondent/HKSAR
答辯人：由律政司高級助理刑事檢控專員單偉琛代表香港特別行政區

Mr. Philip Wong, instructed by Messrs. May Cheng & Co., for the Applicant
申請人：由鄭氏律師行轉聘黃志偉大律師代表