Hon Yeung VP (giving the Reasons for Judgment of the Court):
高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：

Introduction
引言

The applicant (Lee Chi Shing) was charged with unlawfully trafficking in 0.24 kilogrammes of a powder containing 0.21 kilogrammes of ketamine.  He pleaded not guilty and was tried before Tong J (the trial judge) and a jury.
申請人（李志成）被控非法販運含0.21公斤氯胺酮的0.24公斤粉末。他否認控罪並在高等法院原訟法庭法官湯寶臣（原審法官）會同陪審團席前受審。

On 17 May 2012 the applicant was convicted as charged and was sentenced on the same day to imprisonment for 7½ years.
2012年5月17日，申請人被裁定罪名成立並在同日被判入獄7年半。

Represented by Mr. Alex Ng of Counsel, the applicant applied for leave to appeal the conviction.  We dismissed the application after hearing, for reasons which we now give.
申請人不服定罪，由吳政煌大律師代表提出申請，要求獲淮就定罪上訴。經聆訊後，本庭駁回申請。以下是本庭的判案理由。

The prosecution case and evidence
控方案情及證據

Around 9.30 pm on 4 July 2011, police officers of the Hong Kong Police Narcotics Bureau (PC33410 and PC8195 among them) were carrying out their duties at Exit D of Tsuen Wan West MTR station.  The applicant was then a passenger on board a stationary white vehicle of which his elder brother was the driver.  The police officers asked the applicant to get off the vehicle for inspection.  He alighted from the vehicle, and then PC33410 took him three to four steps forward to somewhere near the front of the vehicle where PC33410 then conducted a search on him.  PC33410 found from the left rear pocket of the applicant’s pants a bag of powder weighing 0.24 kilogrammes and containing 0.21 kilogrammes of ketamine (i.e. the drug involved).
2011年7月4日晚上約9時30分，警方毒品調查科警員（包括警員33410和警員8195）在荃灣港鐵西站D出口執行任務，當時申請人是一輛停定的白色車輛上的乘客，司機是他的哥哥。警員要求申請人下車接受檢查。申請人下車後，警員33410帶他前行三、四步近車頭位置並搜查他。警員33410在申請人的左後褲袋搜出一包共重0.24公斤的粉末，內含0.21公斤的氯胺酮（即涉案毒品）。

PC8195 conducted a search on the applicant’s elder brother but did not find any contraband, and in the end the applicant’s elder brother was not prosecuted.
警員8195負責搜查申請人的哥哥，但沒有發現任何違禁品，而申請人的哥哥最終亦沒有遭檢控。

PC33410 denied the defence’s allegation that he had indicated to the applicant that the drug involved was found inside the vehicle.  He also denied the allegation that the drug was not found on the applicant himself.  PC33410 said that at the material time the applicant was wearing casual pants instead of beach shorts and short pants with no left rear pocket.
警員33410否認辯方指他曾向申請人表示涉案毒品是在車上找到，亦否認涉案毒品並非是在申請人身上搜出。警員33410指出案發時申請人穿着的是便服褲，而不是沙灘褲及無左後袋的短褲。

Towards the end of the examination-in-chief, the prosecutor asked PC33410 whether he and his teammates had had any grudges against the applicant, and PC33410 answered, “I don’t know him” and “as far as I know, nobody knows him”.  At that point, the defence counsel raised an objection to the said testimony of PC33410, asserting that what he said was hearsay evidence.  The trial judge said he would deal with this matter later, although eventually he did not do so.
警員33410在主問尾聲時被主控官問及他和其隊友與申請人是否有過節時，他回應說：“我唔識佢”，“據我所知都無人識佢”。當時辯方律師反對警員33410的上述證供，指該說法屬傳聞證供。原審法官表示會遲些處理問題，但最終沒有做到。

PC8195 conducted a search on the applicant’s elder brother but failed to find any contraband.  PC8195 said that he had not personally seen the drug involved, but as he understood it, only one bag of drug was found in the operation.
警員8195負責搜查申請人的哥哥，但沒有搜出違禁品。警員8195表示他沒有親眼見過涉案的毒品，但他理解在行動中只搜出一包毒品。

It was common ground that the drug seized in the operation was 0.21 kilogrammes of ketamine contained in a powder weighing 0.24 kilogrammes and that the drug had a retail price of HK$25,440.  The relevant report prepared by a Government Chemist was produced to the court on the basis of the admitted facts.  Apart from laboratory test results relating to the bag of drug involved in the present case, the said report also contained test results of nine other bags of ketamine.  It was also common ground that no fingerprints of forensic value were found on the bag of drug involved and that the applicant did not have any criminal record in Hong Kong.
雙方同意警員33410在行動中檢獲的毒品是內含0.21公斤氯胺酮的0.24公斤粉末，零售價為25,440港元。有關的政府化驗師報告是根據同意案情向法庭呈示。該報告除了和本案的一包毒品有關外，亦包括另外9包氯胺酮毒品的化驗結果。雙方亦同意涉案毒品上並沒有任何具鑑證價值的指紋，而申請人在本港並無任何刑事犯案記錄。

Apart from the evidence pertaining to the arrest of the applicant and the seizure of the drug involved, the prosecution also alleged that the applicant had made an admission.  After a voir dire hearing and having considered the evidence of the relevant police officers and of the applicant, the trial judge refused to admit the said admission as evidence.
除了拘捕申請人及檢獲涉案毒品的證據外，控方亦指申請人曾作出過招認。經案中案的聆訊及考慮過有關警員及申請人的證供後，原審法官不接納有關招認為證據。

Having ruled that the applicant’s admission could not be adduced as evidence and before the prosecution opened its case, the trial judge expressed concerns over the consequences of placing the applicant’s admission before the jury.  This led to the following conversation between the trial judge and counsel for both parties:
在裁定申請人的招認供詞不能呈堂為證及在控方開案前，原審法官關注到如申請人的招認在陪審團前展示會做成的後果，並因此和雙方律師有以下的對話：

“Judge:Regarding the hearing tomorrow, there are a few points to which I would like to draw your attention.  First, following the ruling [made on the voir dire], the focus is now on the circumstances in which the drug was found, which means both the prosecution and the defence should no longer make any reference to what was said under caution.  That is the first point.  Second, I would like to mention here that, sometimes, in the middle of the trial, the defence would – without what was going on in its mind being known – suddenly turn round and want to refer again to what happened during the interview.  But as the court has already given a ruling at the request of the defence, the relevant evidence is – that is to say, the court has already made a ruling in this respect, so if you go back and say that a certain point has to be raised again at some stage, the defence will have to give this some thought: it’s not just one or two points that you want to raise, and the defence may suggest – the prosecution will say that, this being the case, the context should also be made known to the jury.  I am just briefly mentioning this, I am not saying that the defence [in the present case] has this intention.
“官：有關於聽日嘅審訊，有幾點我想係提醒一下嘅。就第一，經過咗個裁決之後，而家嗰個集中點係在於搵到毒品嘅情況，咁就變咗控辯雙方應該係唔再提話嘅警誡下嘅說話呢一方面，呢個第一；第二就係話，我想喺呢度提，即係有時辯方又會喺審訊嗰時，唔知係--嘅諗法係點，就突然之間又掉番轉，又想提番會面時嘅一啲嘅事情，但係因為辯方已經要求法庭係作出一個裁決，咁嗰啲有關嘅證據就係--即係法庭已經就呢方面作咗裁決，咁如果你又掉番轉頭，又話要再某一個環節要提出呢，咁辯方就要諗下，就變咗唔係凈係一、兩點你哋想提嘅事情，咁可能辯方或者有個講法--控方會有個講法就話，既然係咁，咁可能嗰個上文下理都應該畀陪審員知道，咁呢個我提一提啫，我唔係話辯方有咁樣嘅打算。

There is one matter of which the defence had made passing mention when dealing with the issue of arrest and which I am now bringing up for the sake of the progress of the trial. If there is an issue over the pants/shorts – of course I am not saying the defence has to tell me now what their defence is, but if there is an issue over the pants/shorts – I believe that the pants/shorts have already gone to … been returned to the defendant, and so the prosecution does not have them.  But if you are saying there are certain so-called issues over the pants/shorts which have to be dealt with, please do not bring them up only at that stage by saying that I want to raise them and seeking to adjourn the case for half a day or one day to obtain the exhibit and so forth.   This is what I want to point out.
有一點，就係話呢件案辯方喺提到拘捕嗰時就略略提過，咁我呢度就想為咗法庭嗰個審訊嘅進程就提出，如果係有嗰條褲嘅問題嘅話，咁當然我唔係話辯方要而家話畀我聽你嘅辯護係乜嘢，但係如果係有嗰條褲嘅問題，因為我相信條褲已經去咗--返番去被告嗰度㗎喇，咁所以就控方就係冇㗎喇。但係如果你話嗰條褲係有啲所謂議題係要處理嘅，就請唔好到時先至話我而家想提出呢啲，又話押後半日、一日去攞咩嘢證物嗰啲咁嘅嘢喇，咁呢個我想提一提。

On the other hand, as I see it, there is one possible scenario in the present case, that is, the prosecution might have made certain arrest on the basis of certain information which it had.  But in this respect you have to see what decision the defence makes for itself.  If you want to conduct cross-examinations in this respect, please be cautious, because I do not want to find, in the middle of the examination but not earlier, that you are telling me there is some information which is embarrassing to or biased against the defence and which will then have to be dealt with.  If the defence decides there are questions to be asked in this respect, perhaps please notify the court so that the issue can first be discussed in the absence of the jury before it is dealt with.
另一方面，就係呢件案嗰度睇得到可能係一個情況就係，控方或者係有一啲嘅資料而作出一啲嘅拘捕行動，但係呢方面你要睇辯方自己嘅決定喇，如果你要喺呢方面去作盤問嘅話，就請小心，因為我唔想去到一半先發覺你話係有啲資料係對辯方係有尷尬或者係有偏見嘅，咁嗰陣時先至處理。如果喺呢方面，辯方嘅決定有嘢問嘅話，就或者請通知法庭喺陪審員不在場嘅時間，我哋討論咗，然後先至去處理。

These are the points I want to raise.  Are there other matters we should discuss before the trial?
咁我想提出嘅係呢幾樣，有冇其他事情我哋應該喺審訊前討論嘅？

Mr. Kwan:On the second point that your Lordship has just mentioned, I may have to consider it thoroughly and seek instructions – that is the point about the defence wishing to revisit certain issues dealt with in the voir dire.
關先生：我諗係法官閣下剛才提出，第二點嗰度可能我要詳細諗清楚同埋攞啲指示嘅，就係話有時有啲辯方想返番轉頭，就講番類似案中案嗰啲少少嘅議題...

Judge:Mr Kwan?
官：Mr Kwan？

Mr. Kwan:Yes, yes.
關先生：係，係。

Judge:I am not counsel representing him …
官：我唔係佢嘅代表律師嚟嘅，...

Mr. Kwan:Mm.
關先生：唔。

Judge:My point is to tell you that other people had done it before.
官：...我想講嘅係話畀你聽，以前有人咁樣做。

Mr. Kwan:Yes, I understand.
關先生：係，我明白。

Judge:Actually, this approach is essentially improper.  If you think there are certain matters in the voir dire which should in fact be brought to the attention of the jury, then we should not have conducted the voir dire and should instead have gone through the whole matter before the jury and you could have pointed out what you thought was advantageous to him.  But now that you have chosen the other approach, I think that those matters should, basically speaking and in principle, be irrelevant.  But if, having been reminded, it now occurs to you that “Ah, that’s right” –  so, that is not what I intended, that is what I am worried may happen, but this is something you have to consider for yourself.
官：咁樣做其實基本嚟講就唔恰當，如果你認為其實喺呢個案中案之中係有啲事情其實應該畀埋陪審員知嘅，如果咁，我哋就唔應該打案中案，應該成件一齊喺陪審員面前做一次，然後你認為對佢有利嘅，你就指出嚟。但係你已經選擇咗呢個方法，我覺得基本上、原則上，嗰啲就應該係無關。但係如果你而家經提點突然之間諗到「呀，係喎。」咁呢，我嘅本意唔係咁，我係驚或者會咁，但係呢個你自己去考慮。

Mr. Kwan:Yes, your Lordship.
關先生：係，法官閣下。

Judge:But I do not want to have to consider these digressive matters at that stage but not before.
官：但係我唔希望再有呢啲咁嘅枝枝節節嘅嘢係到時先至諗。

Mr. Kwan:Understand, understand.
關先生：明白，明白。

Judge:Yes.
官：係。

Mr. Kwan:Yes, yes, this …
關先生：係，係，呢...

Judge:Actually these matters should have been considered long ago.
官：其實呢啲應該一早已經係諗晒。

Mr. Kwan:Yes, yes, I thought about this point before your Lordship made the ruling, so I – now that I have the benefit of a reminder by your Lordship, I have a better idea about this.
關先生：係，係，我係喺法官閣下裁決之前我就曾經諗過呢一點，咁我就--而家法官閣下提點咗，咁我更加就清楚喇，有關呢點嘅。

Judge:Mm.
官：唔。

Mr. Kwan:Yes, I will clearly explain this point to the defendant, right.
關先生：係，我會清楚咁解釋畀被告人聽嘅，關於呢方面，係。

Judge:Mm.  Of course, if you have – some submissions to make, saying there are certain aspects which the court should consider, then I of course will listen to you – to hear what you have to say, and in that case perhaps a relatively simple introduction can be made at the opening of the case, and if a complex legal issue does exist, then we will deal with it.  This will be better than having ourselves completely tied up right at the opening of the case and will, I think, be more conducive to the progress of the trial.
官：唔。咁當然喇，如果你有--有啲陳詞，你話有啲角度法庭應該去考慮嘅，咁我當然會聽下你--你所講嘅係咩嘢事情，咁或者嗰個開案如果用一個比較簡單嘅嗰個介紹，然後如果真係有啲咩嘢複雜法律問題然後我哋先解決，就好過一早係喺嗰個開案度已經綁死晒，咁我諗會對個案件嘅審訊嘅進度會有一個較有利嘅安排。

Mr. Kwan:Yes, your Lordship.  In light of your Lordship’s ruling, I think some amendments may have to be made to the opening of his case, so what I would like to know is –  I mean the stance of the prosecution – how the opening case tomorrow will be, I just hope to know about it a bit earlier.
關先生：係，法官閣下，基於法官閣下嗰個裁決，而家佢個開案嗰度我諗可能要作出一啲修改，咁我想知道就係--即係控方嗰個立場係嗰個--明天個開案會係點，我希望可以早少少睇到嘅啫。

Mr. So:Our opening case ...
蘇先生：我個開案...

Judge:It should be that they went to where you were and intercepted the vehicle...
官：咁佢應該就係去你嗰度截停架車...

Mr. Kwan:A little bit has been deleted, yes, that is a little bit has been deleted.
關先生：就減咗啲，係，即係減咗啲。

Mr. So:That means merely describing the circumstances at the scene and what was found upon search.
蘇先生：即係講出現場個情況，搜到乜嘢嘢啫。

Judge:That is correct.
官：係喇。

Mr. So:And the part concerning the verbal admission is …
蘇先生：就將嗰個口頭招認嗰一部分係...

Mr. Kwan:As well as what followed.
關先生：同埋後面。

Judge:Right, say he was arrested and where certain items were found upon search.
官：係，就話拉咗佢，喺邊度搜到啲嘢咁樣。

Mr. So:Right, he was arrested, right, that’s it.
蘇先生：係，拉咗佢，係，係喇。

Mr. Kwan:Right, and the customers all left afterwards, afterwards.
關先生：係，就後面冇晒啲客，後面。

Judge:Right, so approximately how many witnesses do you have?
官：係，咁你大概會幾多個證人吖？

Mr. So:For myself, in fact in the present case I actually have one witness only, but I have no idea how many defence [witnesses] we will have to tender for cross-examination.
蘇先生：我自己其實喺呢個案之中，其實就真係一個證人嘅啫，不過我唔知道辯方仲需要我哋tender佢幾多位係for cross-examination。

Judge:I have no idea either.
官：我都唔知。

Mr. So:Yes, I will liaise with them later, yes, yes.
蘇先生：係，我會遲啲會同佢聯絡，係，係。

Judge:What if I leave it to them to … because it seems that they … as they mentioned in their submissions, other persons on their side did not see [what happened].
官：不如我呢個交畀佢哋去--因為好似佢哋--佢自己陳詞嘅時間都講，佢其他人都冇見到。

Mr. So:Yes, yes, yes.”
蘇先生：係，係，係。”

The defence case and evidence
辯方的立場及證據

The defence case was that the drug involved was not found on the person of the defendant upon search. At the material time, the applicant was wearing a pair of beach shorts with no left rear pocket.  The defence alleged that PC33410 had indicated to the applicant that the drug involved was found inside the vehicle, and that PC33410 lied in order to frame up the applicant.
辯方的立場是涉案的毒品並非是從申請人身上搜出；申請人在案發時穿着的是一條沙灘短褲，而該短褲是沒有左後袋的。辯方指警員33410曾向申請人表示過涉案毒品是在車上找到，而警員33410是說謊誣告申請人。

At trial, however, the applicant neither gave evidence nor called any witness.
但申請人沒有作供自辯，亦沒有傳召證人作供。

The trial judge’s directions to jury
原審法官對陪審團的指引

The trial judge gave the jury a detailed explanation on the facts of the case and the relevant points of law.  He reiterated the stance of both parties.  He also specifically reminded the jury not to draw any adverse inference against the applicant on the ground that the applicant himself had not given evidence or called other witnesses for the defence.
原審法官有就案情及有關法律議題向陪審團詳細解釋。原審法官有複述雙方的立場。原審法官有特別提醒陪審團不要因為申請人沒有作供或傳召證人作供而對他作出任何不利的推論。

The trial judge reminded the jury the fact that the applicant had no criminal record and was of good character, and told the jury that it was a fact on which they should take a view favourable to the applicant and which served to indicate it was less probable for the applicant to commit the offence.
原審法官有提醒陪審團申請人沒有刑事記錄及品格良好，而陪審團應視該事實對申請人有利，亦能顯示他干犯罪行的機會較低。

The trial judge also pointed out that, if the jury considered that PC33410 was not veracious and reliable and that the drug involved was not found on the applicant or was probably not found on him, or if they considered that the applicant had no knowledge of the nature of the drug, then they were bound to return a verdict of not guilty.
原審法官亦指出如陪審團認為警員33410並非誠實可靠，而涉案的毒品並非或可能並非在申請人身上搜出的；或申請人對毒品的性質並不知情，則他們必須裁定申請人無罪。

Regarding one of the agreed facts, namely that the drug involved and its packaging did not bear any fingerprints of forensic evidential value, the trial judge did not give any separate directions to the jury.  He only repeated PC33410’s statement that to his knowledge there was no police officer who knew the applicant.  No further direction was given to the jury apart from this.
就雙方同意的其中一項事實，即涉案的毒品及包裝都沒有任何具鑑證價值的指紋一事，原審法官並沒有向陪審團作出任何獨立的指引。原審法官亦只是向陪審團複述警員33410指據他所知沒有警員認識申請人的說法，而沒有再向陪審團作出其他指引。

Grounds of appeal
上訴理由

Mr. Ng, Counsel for the applicant, raised three grounds of appeal:
代表申請人的吳大律師提出三點上訴理由：

The speech made by the trial judge before the prosecution opened its case had led the applicant to wrongly decide not to give evidence in defence or call witnesses, the reason being that the trial judge had improperly restricted the issues that the defence might raise at the trial proper.  Mr. Ng pointed out that as a result of the trial judge’s view that no reference should be made again to the voir dire, the defence had not been able to fully present its case before the jury as well as to challenge the testimony of PC33410;
原審法官在控方開案前的說法，導致申請人錯誤地決定不作供自辯或傳召證人，原因是原審法官不當地局限了辯方在正審時可提出的議題。吳大律師指原審法官認為案中案的環節不應重提會令辯方未能充份地在陪審團前演譯辯方案情及測試警員33410的證供；

As regards PC33410’s testimony that to his knowledge no one was acquainted with the applicant, the trial judge had failed to point out to the jury that such testimony was hearsay evidence and, as such, could not be taken as evidence of the alleged fact.  Furthermore, the trial judge’s reiteration of such testimony to the jury had the effect of reinforcing the suggestion that the police officer had no reason for lying in order to frame up the applicant; and
原審法官沒有向陪審團指出警員33410指據他所知無人認識申請人的說法屬傳聞證供，該說法不能被視為是該事實的證據，而原審法官向陪審團複述該說法則構成強調警員沒有理由說謊去誣告請人；及

The trial judge had neither asked the jury not to allow themselves to be influenced by the reference in the Government Chemist’s report to large quantities of drugs similar to that involved in the present case, nor directed the jury not to draw any adverse inference against the applicant by reason of the content of the said report.
原審法官沒有邀請陪審團不要受化驗所報告書上的其他大量同類型毒品出現的影響，亦沒有指導陪審團不要因報告內容而對申請人作出不利的推論。

Discussion
討論

The bag of drug involved in the present case was sent to the Government Laboratory together with nine other bags of ketamine which were irrelevant to the present case.  It is highly likely that they were all sent to the Government Laboratory in one lot by the police for the sake of convenience.
送往政府化驗所的毒品，除了涉案的一包外，亦包括另外9包氯胺酮。該9包氯胺酮和本案無關，極可能是警方為了方便而將它們和本案所涉的一包氯胺酮一起送往政府化驗所化驗。

We agree that the approach of sending drugs involved in different cases to the Government Laboratory together instead of separately is open to question.  The prosecution only has to adduce such evidence as is relevant to the case, and the drug relevant to the present case was merely one bag of ketamine allegedly found on the applicant.  The other drugs had nothing to do with the present case.  The police should have dealt separately with drugs involved in different cases, and the prosecution should not have submitted to the court the laboratory test reports of other drugs together with the report of the drug in question, which would only complicate the matter.  In our view, the approaches adopted by both the police and the prosecution should be rectified.
本庭同意將不同案件所涉的毒品一起送往化驗所化驗，而沒有將它們分開處理的做法有值得商榷之處。控方只須將和案件有關的證據呈堂為證，而和本案有關的毒品只是據稱在申請人身上搜獲的一包毒品氯胺酮，其他毒品和案件無關。警方應將不同案件的毒品獨立處理，而控方亦不應該將其他毒品的化驗報告一起向法庭呈示，將事件複雜化。本庭認為警方和控方的處理方法都應糾正。

Having said that, in dealing with this appeal, the Court is not concerned with whether a certain approach adopted by the police or the prosecution was entirely proper or not.  Instead the Court is concerned with whether the conviction should be quashed for being unsafe or unsatisfactory, or whether the first instance judgment should be quashed by reason of an erroneous decision on a point of law, or whether there was any material irregularity in the course of the trial (see s. 83 of the Criminal Procedure Ordinance (Cap. 221)).
但處理本上訴時，法庭要關注的並非是警方或控方的某種做法是否完全洽當，法庭要關注的是有關定罪是否不穩妥或不令人滿意，而應予以作廢；或是否有法律問題有錯誤的決定，應令原判決作廢；或在審訊過程中有重大的不當之處（見《刑事訴訟程序條例》第221章第83條）。

The prosecution’s stance was clearly that only one bag of dangerous drug was found on the applicant.  The parties also agreed that the bag of drug was 0.24 kilogrammes of a powder containing 0.21 kilogrammes of ketamine.  The jury must certainly have been aware of the prosecution’s stance and those facts which were not in dispute.
控方的立場是明確的，即從申請人身上搜獲的只有一包毒品，而雙方亦同意該包毒品是含0.21公斤氯胺酮的0.24公斤的粉末。陪審團亦必然知悉控方的立場及雙方並無爭議的案情。

This being the case, the relevant Chemist’s report, which provided no further relevant evidence at all, did not necessarily have to be adduced again as evidence.  If it was necessary to adduce the report as evidence, the contents thereof concerning the other nine bags of ketamine should have been deleted.  Nonetheless, the laboratory test results in the report which related to drugs irrelevant to the present case would not have affected the jury’s verdict, because they were aware that the present case only involved one bag of 0.24 kilogrammes of a powder containing 0.21 kilogrammes of ketamine.
在上述情況下，有關的化驗報告不一定需要再呈堂為證，原因是該分化驗報告完全沒有提供任何進一步的有關證據。如要將化驗報告呈堂為證，則該化驗報告內和其餘9包氯胺酮化驗有關的部分理應刪除。但報告內包括其他和本案無關毒品的化驗結果不會影響陪審團的裁決，原因是陪審團是知悉案情只涉及一包含0.21公斤氯胺酮的0.24公斤粉末。

In our view, improper as it was, the above approach was neither a material irregularity nor an erroneous decision in law.   Nor did it affect the conviction which was safe and satisfactory.  Therefore it does not constitute a ground for quashing the conviction.
本庭認為上述不當的做法，不構成重大不當之處，亦非錯誤的法律決定，更不會影響有關定罪的穩妥性和滿意性，因此不構成撤銷定罪的理由。

We also cannot ignore the fact that the above improper approach was taken with the consent of the defence.  It is therefore not open to the applicant to rely on that approach in support of his application for leave to quash the conviction.
本庭亦不能忽視上述不當的做法是在辯方同意的情況下作出，申請人不能以該做法不當來支持其推翻定罪的上訴許可申請。

During the examination-in-chief of PC 33410, the prosecutor asked him whether the police officers held grudges against the applicant.  The prosecutor’s purpose in asking this was very clear: anticipating that the defence would allege that the police had implanted the exhibit to frame up the applicant, the prosecution intended to take a proactive approach by leading evidence that PC 33410 and other police officers did not know the applicant and held had no grudges against him, and hence they had no reason to frame him up.  The relevant dialogue between the prosecutor and the police officer was as follows:
向警員33410主問時，主控官曾問過他警員是否和申請人有過節。主控官當時的目的是明確的，是預計辯方會指警方插贓嫁禍申請人而先發制人，表達警員33410和其他警員都不認識申請人，和他無過節，故不會插贓嫁禍他的立場。當時兩人的問答如下：

Question:Mr. police officer, do you have any grudges against this defendant?
問：警員先生，呢位被告，你同佢有冇任何過節呀？

Answer:I don’t know him.
答：我唔識佢。

Question:As far as you know, did your team of police officers have … any grudges against him?
問：據你嘅了解，你嗰隊人對佢有冇任何…同佢有冇任何過節？

Answer:To my knowledge, no one knows him.
答：據我所知都冇人識佢。

At that time, Counsel for the applicant pointed out that the reply of PC33410 that “To my knowledge, no one knows him” was hearsay evidence and therefore should not be adduced before the jury.
當時代表申請人的大律師指警員33410的答案，即“據我所知都冇人識佢”屬傳聞證供不應向陪審團呈述。

Had the defence alleged that the police had the motive to frame up the applicant because a police officer had had grudges against him, then in questioning PC33410 the defence would have raised questions regarding the identity of the police officer who had grudges against the applicant and the police officer’s motive for framing up the applicant, and then the prosecution would have been allowed to respond as appropriate.  By the time of the examination-in-chief of PC33410, the defence still had not raised the point before the jury that the police had the motive for framing up the applicant and that they did do so.  At that stage the prosecutor should not have taken the proactive approach of anticipating the defence’s stance and raising matters which were irrelevant to the issues in existence at that time and which were merely peripheral.  The prosecutor’s approach was improper, not because the answer given by PC33410 was hearsay evidence, but because the said matter should not have been raised during the examination-in-chief of PC33410.  And the trial judge should have dealt with this matter immediately by pointing out the impropriety of what the prosecutor did.
如辯方指有某警員因為和申請人有過節，故警隊有動機插贓嫁禍申請人，辯方會在盤問警員33410時，指出和申請人有過節警員的身份及警員嫁禍申請人的動機，到時控方可以作出適當的回應。向警員33410主問時，辯方仍未在陪審團席前指出警隊有動機及有插贓嫁禍申請人，主控官不應在該階段便採取先發制人的方法，預計辯方的立場並提出一些與當時已出現的爭議無關而只是附帶的議題。主控官的做法不恰當，不恰當之處並非警員33410的答案是傳聞證供，而是有關議題不應該在警員33410主問時提出。原審法官亦應立刻處理事件，指出主控官不恰當之處。

Having said that, in our view, in light of the background to and issues involved in the present case, the prosecutor’s improper approach in raising peripheral issues at an inappropriate stage and the failure of the trial judge to deal with the matter immediately were neither here nor there and would not have rendered the conviction unsafe.
但本庭認為主控官在不適當階段提出一些不應提出的附帶議題，而原審法官沒有即場處理，以本案的背景及有關爭議而言不具任何重要性，更不會令定罪的裁決變得不穩妥。

We cannot ignore the fact that at trial the evidence against the applicant came solely from PC33410.  He made an oath before giving evidence, confirming that his evidence would be the truth and nothing but the whole truth.  The jury would definitely have considered whether PC33410 was a veracious and reliable witness.  The trial judge had repeatedly reminded the jury that, if they took the view that PC33410 was not veracious and reliable and that the drug involved had not been found or possibly was not found upon search on the applicant as alleged by PC33410, then they were obliged to return a verdict of not guilty.
本庭不能忽視原審時，唯一對申請人不利的證供源自警員33410。他作供前宣誓並確保其證供真實，亦為事實之全部，並無虛言。陪審團必會考慮警員33410是否是一名誠實可靠的證人，原審法官有重複提醒陪審團如他們認為警員33410並非誠實可靠，而涉案的毒品並非或可能並非如警員33410所指，在申請人身上搜出的，他們都必須裁定申請人無罪。

This being the case, the fact that the prosecutor had improperly led evidence that there were no grudges between PC33410 and the applicant and that “nobody knows him” was neither here nor there and did not affect the safety of the conviction.  This does not constitute a valid ground of appeal.
在上述情況下，主控官不恰當地帶出警員33410和申請人沒有過節及“冇人識佢”一事，不具任何重要性，更不會影響有關定罪的穩妥性，不構成有效的上訴理由。

The prosecution alleged the applicant had made an admission after his arrest, but the trial judge ruled that such admission could not be adduced as evidence.  The background to the case showed that, on the basis of certain information, the prosecution kept the applicant under surveillance and then arrested him, and after the arrest the applicant made an admission.  Were such information to be fully disclosed to the jury, the applicant would very likely suffer prejudice and the trial might have to be suspended and a new jury empanelled.  The dialogue between the trial judge and the defence counsel before the prosecution opened its case merely showed that the trial judge was voicing his concern that the above situation might arise.  The trial judge reminded the defence counsel to act cautiously to ensure that no evidence which would be prejudicial to the applicant, and which therefore should not to be disclosed to the jury, would be adduced.  The trial judge expressed that he only wished that the defence would carefully consider the matter.  The defence counsel also agreed with the trial judge and indicated that only facts such as what was found at the scene and the applicant being arrested for that reason would be raised, in order to avoid evidence prejudicial to the applicant coming into the picture.
控方指申請人被拘捕後曾作出招認，但該些招認被原審法官裁定不能呈堂為證。案件的背景顯示控方是根據某些資料而監視及拘捕申請人，而遭拘捕後，申請人曾作出過招認。假若上述資料向陪審團全面披露，則極可能會對申請人做成不利，亦可能導致審訊終止及要重新挑選陪審團。原審法官在控方開案前和辯方大律師的對話只顯示原審法官對上述可能出現的問題提出他的關注。原審法官是提醒辯方大律師小心行事，不要令一些不利申請人故不應向陪審團披露的證據向陪審團展示。原審法官表示他只是希望辯方能小心考慮。辯方大律師亦同意原審法官的立場及表明只會提及現場搜到甚麼東西及因而拘捕申請人等事項，避免一些對申請人不利的證據出現。

It is true that, during the cross-examination of PC33410, apart from alleging that he had framed up the applicant, the defence could, for the purpose of testing his credibility, also put it to the witness that when he arrested the applicant he assaulted him and took him somewhere, without necessarily having to mention that the applicant had made an admission.  Even if the point about the applicant having made an admission had to be disclosed to the jury, the trial judge could have given directions to the jury as appropriate.  It was for the defence to consider and decide how to deal with the above issue.  If the defence considered it necessary, for the purpose of testing the credibility of PC33410, to point out to the jury that in arresting the applicant PC 334110 had acted improperly and taken the applicant somewhere, the defence could have insisted on taking this course of action and made that clear to the trial judge.
當然，辯方在盤問警員33410時，除了指他插贓害申請人外，亦可以向他指出在拘捕申請人時他曾毆打過申請人及將申請人帶過去某些地方，以測試證人的可信性，而不一定要帶出申請人曾有作出過招認一事。即使申請人曾作出過招認一事要向陪審團披露，原審法官亦可以向陪審團作出適當的指引。如何處理上述問題，是辯方要考慮及作出決定。如辯方認為有必要向陪審團指出拘捕申請人時警員33410有作出過某些不當行為及帶過申請人去某些地方以測試警員33410的可信性，辯方可以堅持該做法，並向原審法官表明其立場。

It is the duty of a trial judge to ensure that the trial proceeds smoothly and effectively and, to that end, the judge is entitled to issue such reminders to both the prosecution and the defence as he deems necessary and appropriate (see, for example, HKSAR v Miyashita Akira CACC 624/1996 and HKSAR v Wong Kay Din CACC 322/1998). If the parties take the view that a reminder given by the judge shows that he misunderstands the crux of the case or that his view is misconceived or unfair to both parties, they should try their best to fight for their position, and they have a duty to make their position and views known to the judge and also request the judge to and ensure he does make a correct ruling.  If either party has not tried its best to fight for its position at trial, it cannot thereafter seek to appeal and overturn the original judgment on the ground that it has been influenced by the court into making certain decision which it subsequently considered inappropriate.
主審法官在處理案件時，有責任確保審訊能順利及有效率地進行，亦因此有權向控辯雙方作出他認為有需要及恰當的提示（見HKSAR v Miyashita Akira CACC624/1996及HKSAR v Wong Kay Din CACC322/1998等案）。如控辯雙方認為主審法官的提示顯示他對案件的重點有誤解，或看法不正確或對雙方不公平，他們應據理力爭，亦有責任向主審法官提出他們的立場及說法，要求及確保主審法官作出正確的裁決。控辯任何一方不能在原審時沒有據理力爭，而在事後以受到法庭的影響作出他們事後認為不恰當的決定，作為上訴理由以冀推翻原判。

The trial judge was entitled to comment on matters and express the hope that the defence would direct its attention on certain matter(s).  At trial the trial judge had indicated clearly to Counsel for the applicant that “this is something you have to consider for yourself”, and Counsel for the applicant also indicated that “I may have to consider it thoroughly and take instructions”.   The trial judge had not mandatorily required the defence to deal with the matter in any particular way; indeed he had not expressed a stance on the matter.  In giving the reminder, the objective of which was to ensure that the trial could proceed smoothly, the trial judge was acting properly.
原審法官有權對事件作出評論及希望辯方會關注某些事項。原審法官有向原審時代表申請人的大律師表明“但係呢個你自己去考慮”，而代表申請人的大律師亦表示“我要詳細諗清楚同埋攞啲指示嘅”。原審法官並沒有強制辯方如何處理有關議題，更沒有在事件上表明甚麼立場。原審法官作出提示的目的是確保審訊能順利進行，是恰當的做法。

At trial, in the course of questioning PC33410, Counsel for the applicant did not in the end raise the applicant’s allegation regarding his having been beaten up when boarding the vehicle as well as the incident inside the canteen at Tsuen Wan Police Station.  This was a decision made by the defence after careful deliberation.  The reminder given by the trial judge had not prevented the defence from stating its case fully and hence does not constitute a ground of appeal to that effect.
原審時申請人的代表大律師在盤問警員33410時，最終沒有述及申請人指在上車時遭人毆打及在荃灣警署飯堂時的環節，是辯方詳細考慮後作出的決定。原審法官的提示不構成任何導致辯方未能充份地表述其案情的上訴理由。

We have considered and rejected the grounds of appeal put forward by Mr. Ng of Counsel.  We find nothing unsafe or unsatisfactory in the applicant’s conviction.  We have therefore dismissed the applicant’s application for leave to appeal the conviction.
本庭已考慮過吳大律師的上訴理由，本庭不接納該些理由。對申請人被裁定罪名成立，本庭不覺有任何不穩妥之處。因此，本庭不批准申請人就定罪的上訴許可申請。

Mr. Francis Lo, Senior Assistant Director of Public Prosecutions 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盧慶祥代表。

Mr. Alex Ng, instructed by Messrs. A.M. Mui & Kwan, for the Applicant
申請人：由梅智傑姚定邦律師行轉聘大律師吳政煌代表。