Hon Chan CJHC (giving the judgment of the Court):
由高等法院首席法官陳兆愷宣讀上訴法庭判案書:

The Applicant appeared in the Court of First Instance on the following charges against him: two counts of trafficking in dangerous drugs, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134), and one count of possessing arms without licence, contrary to Section 13 of the Firearms and Ammunition Ordinance (Cap. 238).  The Applicant pleaded guilty to possessing arms without licence but pleaded not guilty to trafficking in dangerous drugs.  After trial, the jury by a 5:2 majority convicted the Applicant on the first count and unanimously convicted him on the second count.  For the two trafficking offences, the Applicant was sentenced to imprisonment for 3 years and 7 years 8 months respectively, with the sentences to run concurrently.  For the possession of arms offence, the Applicant was sentenced to imprisonment for 1 year 4 months, with 6 months of which to run concurrently with the above 7 years 8 months sentence.  The total sentence was therefore 8 years 6 months.   The Applicant now applies for leave to appeal against conviction in respect of the two trafficking offences.
上訴申請人在高等法院原訟庭被控兩項販運危險藥物罪，違反香港法例第134章《危險藥物條例》第4（1）（a）及（3）條及一項無牌管有槍械罪，違反香港法例第238章《火器及彈藥條例》第13條。申請人承認無牌管有槍械但否認販運毒品。經審訊後，陪審團就第一項控罪以5比2大多數裁定申請人罪名成立，就第二項控罪則一致裁定他罪名成立。法官就兩項毒品罪名分別判申請人入獄3年及7年8個月，准以同期執行，就槍械罪名判他入獄1年4個月，其中6個月准以同期執行，總刑期為8年6個月。申請人對兩項販運毒品控罪的定罪提出申請上訴許可，要求推翻原判。

At 2.07 a.m. on 21 October 1997, two police officers were patrolling the Hunghom area.  They stopped the Applicant at the junction of Hok Ling Street and Ma Tau Kok Road and asked him where he lived and why he was there.  He replied that he was looking for a friend in Hok Ling Street.  The officers conducted a search on him and found two plastic bags from the left front pocket of his trousers.  The plastic bags contained certain drugs which were subsequently verified by laboratory tests to be  crystalline solid weighing 1.37 grams and containing 1.3 grams of methamphetamine hydrochloride, commonly known as “ice”.  The Applicant admitted to the police officers that the two plastic bags contained “ice”.  The officers then arrested him.  Under caution, he said that the drugs were for self-consumption.  The officers took him to the police station, where 4 keys were found on him upon search.  At 5.25 a.m. on the same day, police officers went with the Applicant to his place of residence in Kweilin Street to conduct a search.  Upon arrival, the Applicant opened the entrance door of his residence with one of the said keys.  The officers found in the room a paper box which contained another lot of “ice” which, as laboratory tests revealed, comprised  crystalline solid weighing 35.85 grams and containing 26.06 grams of methamphetamine hydrochloride.  The police cautioned the Applicant again, and he said under caution that those substances were “ice” which he purchased for self-consumption.  The police also found in the same room a total of 183 re-sealable plastic bags contained in two packs and one spoon.  A stun gun was also found in the room.  The Applicant and all the exhibits were taken back to the police station.
於1997年10月21日凌晨2時07分，兩名警員在紅磡地區巡邏，於九龍鶴齡街與馬頭角道交界截停申請人，並詢問他的地址和在該處的原因。申請人回答說是往鶴齡街尋找朋友。警員向他搜身，在他左前褲袋搜到兩個膠袋，袋內藏有一些毒品，經化驗後證實為內含1.3克鹽酸甲基苯丙胺的1.37克晶狀固體，即俗稱「冰」的毒品。申請人向警員承認該兩個膠袋內所藏的是「冰」。於是警員拘捕申請人並施以口頭警誡。申請人回答說這些毒品是用作自己吸食的，警員便把他帶返警署。其後在警署內，警員在申請人身上搜到4把鎖匙。於同日早上5時25分，申請人帶警員到他在桂林街的住所進行搜查。到達後，申請人用其中一把鎖匙開門，警員在房間內搜查時，在一個紙皮盒內發現另一批「冰」的毒品，經化驗後證實為內含26.06克鹽酸甲基苯丙胺的35.85克晶狀固體。警員再次警誡申請人，他回答說這些是「冰」，是他買回來供自己吸食的。其後警員在房間內更搜獲兩包可再封包的膠袋共183個和一隻匙羹。警員還在該房間內搜獲一支電槍。其後把申請人連同證物帶回警署。

At trial, the prosecution and the defence submitted to the court the Admitted Facts, which detailed the nature of “ice”, the usual amount of “ice” being consumed and the method of consuming “ice”.
在審訊時，雙方向法庭呈交一份承認事實書。該文件列出有關「冰」的性質，通常服用的份量和吸食的方法。

Mr Wong, Counsel for the Applicant, submits that the question for the jury in the present case was whether the prosecution had proved beyond reasonable doubt that the Applicant possessed the drugs in question, with part of the drugs to be sold or delivered to others.  In his summing-up, however, the trial judge neither adequately explained the term “traffic” nor directed the jury on how to apply the definition of “traffic” to the facts of the present case.
代表申請人的王大律師在陳詞中指出，在本案中，陪審團要裁決的是控方能否在毫無合理疑點下證明申請人管有案中的毒品將其中部份用以銷售或遞送給其他人士。但原審法官在引導陪審團時，沒有充份解釋「販運」的定義及沒有引導陪審團如何把「販運」的定義應用於本案的案情上。

The trial judge’s directions to the jury included the following:
原審法官向陪審團引導時有以下的指引：

“At law, the term ‘traffic’ is given a very wide definition.  Trafficking includes importing into or exporting from Hong Kong dangerous drugs, as well as procuring, supplying or otherwise dealing in or with dangerous drugs for the purpose of trafficking, or possessing dangerous drugs for the purpose of trafficking, and trafficking in dangerous drugs.  These are all definitions of trafficking.”
「喺法律來講，「販運」呢個名詞所訂下的定義非常廣泛。販運包括進入香港或者從香港出口嘅危險藥物，亦都包括以非法販運為目的獲取供應、或者以其他方式經營、或者處理危險藥物、或者管有危險藥物用作販運用途、同埋販運危險藥物，呢啲都係販運的定義。」

Counsel contends that, where the judge merely read out the statutory definition without any further explanation, the jury was liable to be misled.  Counsel relies on R v. Chan Hoi-wing (CACC 596/1996) and submits that the trial judge in the present case made the same mistake, thereby rendering the jury’s verdict unsafe and unsatisfactory.
大律師指出法官單是向陪審團讀出法例上的定義而不加以解釋可能會誤導陪審團。大律師引用R. v. Chan Hoi-wing (刑事上訴1996年第596號)案例，並指出本案的原審法官犯上同樣錯誤，因此陪審團的裁決不安全及不穩當。

It is the facts of the particular case that will dictate what sort of directions a trial judge has to give, what are the legal principles and evidence in respect of which directions should be given, as well as how directions are to be given.  Where certain facts of the case are not in dispute, the prosecution does not have to prove those facts, and there is no need for the judge to give detailed directions on those facts.  Or where the legal principles relevant to the case can readily be understood by anyone with common sense, the judge need not give any direction apart from referring the jury to the relevant statute.  In R v. Chan Hoi-wing, the trial judge read out to the jury the statutory definition of “trafficking” and did not further explain the term or direct the jury on how to apply the definition to the facts of the case, and Court of Appeal took the view that, in the circumstances of the case, the jury might have been misled.  However, the Court of Appeal did not hold that it must be wrong for the judge to read out the statutory definition without providing further explanation.  In our view, the most important question is whether the judge had, in his summing-up, clearly and fairly directed the jury on the facts, the evidence and the issues in dispute.  As to whether the judge erred in giving directions, the appellate court has to decide, in light of the judge’s speech as a whole, whether he had omitted any crucial matter or misled the jury or whether the conviction is unsafe or unsatisfactory.
向陪審團作出引導時，原審法官應該作出何種指引，應該就那些法律原則或那些證供作出引導，及如何引導，均須視乎案情而定。如果案中某些事實沒受爭議，控方無須就這些事實提出證明，而法官也無須就這些事實作出詳細引導。又如果一些與案有關的法律用一般常理已經可以了解，法官除了向陪審團提出有關的法例外不須再多作引導。在R. v. Chan Hoi-wing一案中，上訴庭認為該案的原審法官只是向陪審團宣讀法例中「販運」的定義，而沒有進一步解釋販運的意思及將販運一詞應用在案情上向陪審團作出引導，在該案的情況下，可能會誤導陪審團。不過，上訴庭在該案中並沒有裁定如果法官只把法例向陪審團宣讀而沒有作其他解釋，便必定是犯錯。本庭認為，最重要的是原審法官能否就案情、證據及雙方爭議的論點，在結案時向陪審團作出清楚及持平的引導。至於在引導時有沒有犯上錯誤，是要從講辭的整體來看，才可以決定法官有沒有忽略了甚麼要點，有沒有誤導陪審團，或定罪是否不安全及不穩當。

In the present case, the Applicant was stopped by the police at 2 a.m.  At that time he had two bags of drugs on his person.  He explained to the police that he was looking for a friend at that time, and that he was carrying those two bags of drugs because he had not taken any drug that day and he intended to consume the drugs in one of the bags upon meeting the friend and keep the other bag for consumption later.  The Applicant also admitted to possessing the large quantity of drugs that the police found at his home.  It is not difficult to suspect or envisage from the circumstances leading to the Applicant’s arrest that he was trafficking in drugs at that time.  There are certain differences between the Applicant’s case and that of the defendant in R v. Chan Hoi-wing.  The defendant in that case was stopped by the police when he arrived at the entrance door of his home, and drugs were found following a search, and therefore it was not obvious whether the drugs were for trafficking or self-consumption.  Furthermore, as there was evidence in the present case on the nature and dosage of “ice”, the jury could, taking into account the quantity of the drugs involved, assess the probability of the Applicant possessing the drugs for self-consumption.  Therefore, it might have been necessary for the trial judge in R v. Chan Hoi-wing to further explain the term “trafficking”.
在本案中，申請人在凌晨兩點被警方在街上截停。當時他身懷兩包毒品。其後向警方解釋說他當時是尋找朋友，藏有兩包毒品是因為他當天尚未吸毒，打算見到朋友後吸食其中一包，而另外一包則留作後用。申請人還承認管有在家中被警方尋獲的大量毒品。從申請人被拘捕的情況看來，很容易令人懷疑或聯想到他是正在販運毒品。本案的申請人與R. v. Chan Hoi-wing一案中的被告人有些不同。該案的被告人是在到達家門時被警方截停和搜出毒品，因此該些毒品是用作販運或是用來自己吸食並不是那麼明顯。加上在本案中有證據顯示有關「冰」的藥性及服用份量，陪審團可以從案中的毒品數量考慮申請人拿毒品來自己吸食的可性有多大。因此，在R. v. Chan Hoi-wing一案中，法官或許須要就「販運」一詞作多一些的解釋。

The charge against the Applicant was unlawfully trafficking in dangerous drugs, and the prosecution had to prove beyond reasonable doubt that, firstly, the Applicant possessed the drugs in question, and secondly, he “trafficked” in those drugs.  The term “trafficking” has been defined in Section 2 of the Ordinance.  It must, however, be noted that “trafficking” is expressly defined to “include” and not “be equivalent to” certain acts.  From this definition, the legislative intent is apparent: apart from maintaining the ordinary meaning of “trafficking”, the legislature seeks to explain and expand the scope of “trafficking”, not only in order to clarify the meaning of the term, but also in order to overtly extend statutory control to certain acts which may otherwise not be regarded as trafficking.  The most obvious example is the inclusion of “possessing the dangerous drug for the purpose of trafficking” in the statutory definition of trafficking, which means that, even though there is no evidence showing that the defendant was engaged in an act of trafficking in dangerous drugs, the judge or jury can infer from the defendant’s act of possessing the drugs and other factual evidence that the defendant possessed the drugs for the purpose of trafficking, and at law this did constitute trafficking.  It is therefore obvious that the statutory definition aims to explain and expand the scope of the term “trafficking”.  In order to understand what amounts to “trafficking” at law, one does not only have to look at the ordinary meaning of the word, but also has to consider whether the statutory definition is applicable.
有關控罪為非法販運危險藥物，控方必須在毫無合理疑點下證明：第一，申請人管有案中有關毒品，第二，他是「販運」這些毒品。至於「販運」一詞，條例中第二條內已列出定義。不過必須要注意的是「販運」的定義訂明是「包括」而不是「就是」若干行為，從這個定義可以看到立法的目的是除了要保持「販運」一詞的日常用意外，還把它加以解釋和擴大它的範圍，不單使這個詞語的用意更為明確，還清楚地把一些人們可能以為不是販運的行為納入「販運」這個定義之內，使之受法律管制。最明顯的例子就是把「管有危險藥物作販運」在法律上列為販運，意思是雖然沒有證據顯示被告人正在進行販運毒品行為，但法官或陪審團可從被告人管有毒品的行為及其他的證據等事實作出一個推論，就是被告人管有毒品的目的是用作販運用途，在法律上也會被視為販運行為。因此明顯可見，條例所列出的定義的用意是對「販運」一詞加以解釋及伸展它的用意。若要理解在法律上何謂「販運」，除了要看販運二字的一般解釋外，還要看條例上的定義是否適用。

As far as directions to jury are concerned, there is one difference between the present case and R v. Chan Hoi-wing.  In that case, the trial was conducted in English, and therefore the jury was also directed in English.  The subject-matter of the charge was “traffic”.  This word ordinarily means the movement of people, vehicles, ships or planes, but it can also mean unlawful buying and selling.  If, therefore, the directions on the term “traffic” are given in English, then apart from reading out the relevant statutory definition, the judge may also have to provide further explanation.  In the present case, the trial was conducted in Chinese and the jury was also directed in Chinese.  The subject-matter of the charge was “販運”.  The situation was then somewhat different. The meaning of this Chinese term is clear and straightforward: sell and deliver.  It follows that, even if the judge does not provide any further explanation, ordinary people will still know what “販運” refers to.   Where the judge has given directions on the other relevant evidence such as the quantity of the drugs involved, the quantity being consumed and the other exhibits found upon search, then in some cases it may be sufficient for the judge to read out the statutory definition of “販運” and any further explanation may only serve to confuse the jury.  As to whether particular directions are sufficient and what kind of directions will be sufficient, this must depend on the circumstances of the case, and no general rule can be formulated.
在引導陪審團時，本案與R. v. Chan Hoi-wing一案有一個分別。就是在該案中，由於審訊是用英語進行，因此引導陪審團亦是用英語的。控罪中有關的詞語是“traffic”。該詞一般的理解是人、車輛、船隻或飛機的往來，也可解作非法買賣。因此如果以英語引導陪審團有關“traffic”一詞時，除了向陪審團宣讀法例中有關的定義外，可能還須要作進一步解釋。在本案中，審訊是用中文進行，而引導陪審團亦是用中文的。控罪中有關的詞語是「販運」。當法官用中文引導陪審團時，情況便有些不同。因為「販運」一詞在中文上的意思已經很淺易和明顯：就是販賣及運送。因此即使法官沒有再作出進一步的解釋，一般人對「販運」一詞亦會知道指的是甚麼。如果法官對案中其他有關的證據，例如毒品的數量，吸食的份量和其他搜獲的證物已作出指引，那麼把法例中「販運」的定義向陪審團宣讀，在一些情況下，可能已經足夠。如果再進一步詳加解釋，甚至可能會混淆不清。至於是否足夠和甚麼是足夠，卻要視乎案中的情況而定，不能一概而論。

In the present case, the question to be determined by the jury was: did the Applicant possess the drugs for self-consumption, or did he intend to traffic in all or part of them?
在本案中，陪審團須要決定的問題是：究竟申請人是管有毒品用作自己吸食，還是打算把全部或部份拿去販運？

In the course of directing the jury, the trial judge said the following:
原審法官在引導陪審團時曾經說出：

“None of the prosecution evidence is under dispute.  The only question you have to consider is whether, on the basis of the arguments advanced by the prosecution, you firmly believe that, in respect of each charge, the defendant did possess those dangerous drugs for the purpose of trafficking, or whether, as he and his lawyer have explained to you, you believe that those drugs were for self-consumption rather than for trafficking.  This is the only question you have to consider.
「所有主控嘅證供並無爭論。你哋唯一要考慮係被告是否因為好似控方向你哋所講嘅論據，令你哋確 信被告喺每一項控罪中都係管有嗰啲危險藥物用作販運用途，還是好似佢同埋佢律師向你哋所解釋，佢係自用而唔係用嚟販運，即係唯一你哋需要考慮嘅一點。

… Therefore, you have to take into account all the testimony and evidence.  If you have a reasonable doubt and cannot firmly believe that the defendant trafficked in these dangerous drugs, you cannot convict him of trafficking in dangerous drugs and can only convict him of possessing dangerous drugs.  You can convict the defendant of trafficking in dangerous drugs only if, having carefully considered all the evidence, you firmly believe beyond reasonable doubt that the defendant possessed those two bags of ‘ice’ and that those two bags of ‘ice’ were for the purpose of trafficking.  Only then can you convict him on the first count.
…..所以你哋要考慮所有嘅證供同埋證據，如果你哋有合理疑點，唔能夠確信被告販運呢啲危險藥物，你哋亦都唔可以判佢販運危險藥物嘅罪名成立，而只能判佢管有危險藥物嘅罪名成立，你哋只能判被告販運危險藥物嘅罪名成立，如果你哋經過仔細考慮所有證供之後，你哋喺沒有合理疑點之下，確信被告管有嗰兩包「冰」,而嗰兩包「冰」係用作販運用途，你哋先可以判佢第一項控罪罪名成立。

… If you have a reasonable doubt after considering all the evidence, he [the defendant] is entitled to the benefit of doubt, and you cannot convict him of trafficking and can only convict him of possessing dangerous drugs.  You can convict the defendant of trafficking in dangerous drugs only if, having carefully considered all the evidence, you firmly believe beyond reasonable doubt that the defendant used the ‘ice’ found at his home for the purpose of trafficking.  Only then can you convict him on the second count.”
…..如果你哋考慮過所有嘅證據，如果有合理疑點，佢亦都會得到有合理疑點嘅得益，你哋亦都唔能夠判佢販運嘅罪名成立，而只能判佢管有危險藥物嘅罪名成立。你哋只能判被告販運危險藥物嘅罪名成立，如因你哋經過仔細考慮所有證供，你哋喺無合理疑點下，確信被告將屋企裏頭搜出嚟嘅「冰」係用作販運用途，你哋先可以判第二項控罪罪名成立。」

On the facts of the present case, and looking at the speech of the summing-up as a whole, the trial judge had, far from misleading the jury, lucidly explained to them the issues involved and the questions they had to determine.  The jury would also have understood the meaning of drug trafficking without the need for further explanation.  In the circumstances of the case, we take the view that the trial judge’s directions to jury were adequate as they stood, and we see nothing unsafe or unsatisfactory about the Applicant’s convictions.  The grounds of appeal not having been made out, we dismiss the application and affirm the trial judge’s verdict.
根據本案的案情，及從引導陪審團的整個講辭看來，原審法官已清楚地向陪審團指出問題所在和他們所要決定的是甚麼，法官並沒有誤導陪審團，而陪審團也會理解甚麼是販運毒品，無須再加以解釋。本庭認為在本案的案情下，原審法官向陪審團所作出的引導已是足夠。本案的定罪亦沒有不安全和不穩當的地方。上訴理由並不充份，因此本庭駁回上訴申請，維持原判。

Mr Wong Hay Yiu, assigned by the Legal Aid Department, for the Applicant.
上訴申請人 :由法律援助署委派王熙曜律師代表

Ms Bianca Cheng, Senior Government Counsel, for the Respondent.
上訴答辯人 :由鄭詠榆(高級政府律師)代表