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

On 5 December 2012, the applicant (Zen Xiulan) came to Hong Kong on board Air Asia’s Flight AK1656 from Kuala Lumpur. Upon arrival, she only had with her hand baggage and no check-in ones.
2012年12月5日，申請人（曾秀蘭）乘坐亞洲航空AK1656航班從吉隆坡來港。抵港時，申請人沒有寄倉行李，只有手提行李。

At 10.35 hours on the same day, the applicant was intercepted by Customs Officers along the Green Channel. At that time, she was carrying a purple backpack on her back, a medium handbag with LV print on her shoulder, a plastic bag and a small reusable fabric bag in her hands.
同日10時35分，申請人被關員在綠色通道截停。當時，申請人背着一個紫色背囊、孭住一個中型LV花紋手袋及手持一個膠袋和一個環保細布袋。

The applicant underwent customs clearance inspection by Customs Officers in a Customs clearance cubicle. Customs Officers seized from the handbag with LV print carried by the applicant two plastic bags containing a total of 0.98 kg mixture containing 0.47 kg of heroin. The retail price of the heroin was approximately HK$880,000. The backpack, plastic bag and reusable fabric bag carried by the applicant contained her clothes and other personal belongings with no suspicious items.
申請人在海關清關室被關員作清關檢查。關員在申請人孭住的LV花紋手袋內檢獲兩個膠袋，合共載有0.98公斤混合劑，內含0.47公斤海洛英。該些海洛英的零售價約為88萬港元。申請人攜帶的背囊、膠袋和環保布袋載有申請人的衣物和其他個人用品，但沒有任何可疑物品。

Due to the above incident, the applicant was charged with a single count of unlawful trafficking in a dangerous drug to which she pleaded not guilty and was tried before Deputy High Court Judge Joseph Yau (the trial judge) sitting with a jury.
上述事件導致申請人被控一項非法販運危險藥物罪。申請人否認控罪，並在高等法院暫委法官邱智立（原審法官）會同陪審團席前受審。

On 21 February 2014, the jury reached a verdict of guilty by a majority of 6 to 1 against the applicant. On 5 March 2014, the trial judge sentenced the applicant to a term of 17 years and 6 months of imprisonment.
2014年2月21日，陪審團以六比一的大多數裁定申請人罪名成立，而在2014年3月5日，原審法官判申請人入獄17年6個月。

The applicant, represented by Mr Chun-keung Leung of counsel and Mr Forest Fong of counsel, filed an application for leave to appeal against conviction. We dismissed the application after the hearing and here are our reasons.
申請人不服定罪，由梁振強及方林海兩位大律師代表提出申請，要求獲准就定罪上訴。經聆訊後，本庭駁回申請，以下是本庭的判案理由。

Prosecution case & evidence
控方案情及證據

Apart from the undisputed facts mentioned above, evidence from the prosecution showed that at the scene after being arrested and cautioned, the applicant maintained that the items in the LV bag did not belong to her and that she did not know that dangerous drugs were hidden in the LV bag. However, when being asked if the LV bag in question belonged to her, the applicant said, “I bought (it) yesterday.”
除了上述無爭議的案情外，控方的證據顯示申請人在現場被拘捕及在警誡下，一直都表示LV袋內的東西並不是她的，而她亦不知道LV袋內藏有毒品。但被問及涉案的LV袋是否屬於她時，申請人說：“我尋日買嘅”。

After it had been confirmed that dangerous drugs were hidden in the LV bag, the applicant was cautioned again and she said, “I understand, but the handbag and the things inside it do not belong to me. I am helping my friend bring (them) back to someone in Guangzhou.  I opened it this morning at Kuala Lumpur Airport and saw that there were only clothes inside. I therefore agreed to help him bring them back. I’m doing it for free.”
當LV袋內被證實藏有毒品後，申請人再被警誡時則說：“我明，不過個手袋同面嘅嘢唔係我嘅，我幫朋友帶返去廣州俾人。我今朝喺吉隆坡機場打開過，見到面得啲衫咋，咪應承幫佢帶返去囉，我無收錢。”

The Customs Officer post-recorded what the applicant had said under caution, and the applicant also wrote a declaration to confirm that the content of the post-record was correct. The prosecution also produced the applicant’s record of interview as evidence.
關員有將申請人在警誡下的說話補錄，而申請人亦有寫下聲明，確認補錄的內容正確。控方亦有將申請人的會面記錄呈堂為證。

Defence case and evidence
辯方的案情及證據

The defence basically accepted the prosecution case and admitted that the heroin in question was hidden between the linings of the handbag with LV print carried by the applicant on her shoulder when she entered Hong Kong. However, the defence denied the prosecution’s allegation that the applicant knew that dangerous drugs were hidden inside the LV handbag carried by her and knowingly brought the dangerous drugs into Hong Kong. The defence accepted that the applicant had told the Customs Officer that “I bought (it) yesterday.” However, it came as a casual reply to what the applicant thought was a routine question from the Customs Officer. The defence case was that the applicant was cheated by a black friend called Ka Ka. Without knowing the truth, she followed the instruction of his second elder brother Joe and brought the LV bag in question to Guangzhou for passing it to a friend of Ka Ka.
辯方基本上同意控方的案情，亦承認涉案的海洛英是藏在申請人入境香港時孭住的LV花紋手袋的夾層內，但辯方否認控方所指是申請人明知其攜帶的LV手袋內藏有毒品，而將毒品帶入香港。辯方承認申請人有向關員說過LV袋是“我尋日買嘅”，但指申請人以為關員是循例問她，而她亦是隨口回應。辯方的立場是申請人受一名叫卡卡的黑人朋友所騙，在不知情下，根據其二哥Joe的指示，將涉案的LV袋帶往廣州，交給卡卡的一名朋友。

The applicant indicated that she came to know Ka Ka in May 2011 via a social communication platform QQ on the internet. Ka Ka said that his brother would bring her to have fun at Malaysia. She therefore went to Malaysia on 1 December 2012 and then came to Hong Kong on 5 December 2012, from where she intended to take a coach back to Guangzhou via Foshan.
申請人表示她於2011年5月在互聯網通訊平台QQ上認識卡卡，而卡卡說他的哥哥會帶她到馬來西亞玩，因此她在2012年12月1日前往馬來西亞，直至2012年12月5日來港，並打算坐巴士經佛山返回廣州。

The applicant stated that she came to know Ka Ka on Mother’s Day in 2011. Ka Ka told her that he was an African, but he also mentioned that he was a Cuban. He later clarified that his father was a Cuban while his mother was a Nigerian, a furniture manufacturer.
申請人指在2011年母親節認識卡卡，而卡卡有說過自己是非洲人，又說過自己是古巴人。其後，卡卡又澄清說父親是古巴人，而母親是尼日利亞人，從事傢俬生產。

After the applicant had known Ka Ka, the two of them developed close relationship, dated frequently and also saw each other at Ka Ka’s residence. On 13 May 2011, Ka Ka expressed that he would like to invite the applicant to Malaysia for travelling and meeting his family members. However, being tied up by his business, he would not be able to travel with her. Ka Ka claimed that his two elder brothers were living in Malaysia. As a result, the applicant went to Malaysia in May 2011 for the first time.
認識卡卡後，雙方關係密切，經常約會，亦有在卡卡居所會面。2011年5月13日，卡卡表示想邀請申請人前往馬來西亞旅遊及會見他的家人，但因為生意關係，不能和她同行。卡卡聲稱有兩個哥哥在馬來西亞居住。結果申請人在2011年5月首次前往馬來西亞。

The applicant indicated that Ka Ka had made the arrangement for her trip to Malaysia in May 2011 and she did not carry anything on the return journey. She said that Ka Ka had paid for the air tickets and even given her RMB200 for buying gifts for his elder brothers. She paid for the expenses of the trip. Upon arrival at Kuala Lumpur, Ka Ka’s elder brother did not pick her up at the airport. Instead, she was told to take a taxi to his residence. In Malaysia, Ka Ka’s elder brother was the one receiving her. There were five or six other men living there. The applicant stated that during her stay in Kuala Lumpur, Ka Ka’s elder brother only brought her to a church on the first day, saying that going to church was very good for one’s mind. For the rest of the stay, the applicant just watched television in the residence of Ka Ka’s elder brother. The applicant indicated that originally she wanted to develop a relationship with Ka Ka but ceased to do so because (she) felt that Ka Ka had another girlfriend. The two of them had stopped seeing each other since 2012.
申請人表示她在2011年5月前往馬來西亞是透過卡卡安排，而回程時她並沒有攜帶任何東西。她說機票費用由卡卡支付，而卡卡更將200元人民幣交了給她用作購買禮物送給他的哥哥，但旅費則由她自己負責。到達吉隆坡後，卡卡的哥哥沒有接機，只著申請人乘坐的士前往他的住所。在馬來西亞時，負責招待申請人的是卡卡的哥哥，而和他一起居住的有另外5至6名男住客。申請人指稱在吉隆坡期間，卡卡的哥哥只在第一天帶她去一所教堂，說教堂對心靈會好好，而其餘時間，申請人都是在卡卡哥哥的住所內看電視。申請人表示原希望和卡卡發展感情，但因覺得卡卡另有女朋友而作罷，而兩人自2012年起沒有見面。

The applicant continued and said that she was dating a man surnamed Cheung from April to August 2012 but subsequently broke up after a row. In September 2012, Ka Ka approached her and invited her to go to Malaysia again for visiting his elder brothers. Ka Ka indicated that the applicant would be a suitable wife for him, and that the elder brother whom she had met in Kuala Lumpur also approved of her. Ka Ka would like the applicant to go to Kuala Lumpur again for visiting his second elder brother Joe and he indicated that Joe would show her around in Malaysia. At the same time, Ka Ka indicated that he was out of town and therefore could not accompany her. The applicant indicated that she accepted the proposed revisit to Malaysia because her business performance was poor and she was in a bad mood. The applicant alleged that a friend of Ka Ka at Guangzhou had arranged the air ticket to Malaysia which had been paid for by Ka Ka. She was responsible for the expenses along the trip and for food.
申請人續稱在2012年4月至8月期間和一張姓男子拍拖，但其後吵架後分手。2012年9月，卡卡找她並邀請她再到馬來西亞探望他的哥哥。卡卡表示申請人適合做他的妻子，而她在吉隆坡見過的大哥亦同意。卡卡希望申請人再前往吉隆坡探望他的二哥Joe，並表示Joe會帶她在馬來西亞遊玩。卡卡同時表示他在外地，故不能陪她。申請人表示她當時業績不佳、心情壞，故接受建議再前往馬來西亞。申請人指前往馬來西亞的機票由卡卡在廣州的一名朋友安排，卡卡亦負責支付機票，但旅費及食用則由她自己負責。

The applicant alleged that having arrived at Malaysia on the 10 October 2012, again, (she) went to the residence of Ka Ka’s eldest brother and came to know Joe and two of his friends who were black (namely,) Sam and Michael. The applicant indicated that during that entire trip, (she) just stayed inside the house for watching television and having meals without going out at all. She did not visit any tourist attraction. On 13 October 2012, the applicant returned to Guangzhou via Guilin without carrying any items for anyone.
申請人指在2012年10月10日抵達馬來西亞後，同樣前往卡卡大哥的居所，並認識了Joe和他的兩名黑人朋友Sam和Michael。申請人表示這一次全程都只是在屋內看電視、吃飯，完全沒有外出，沒有到過任何旅遊景點。2012年10月13日，申請人經桂林返回廣州時，並沒有替人攜帶任何物品。

The applicant continued to allege that in October 2012, she made up with Mr Cheung and planned to marry him at Christmas in that year. However, on 24 October 2012, Ka Ka contacted the applicant again via QQ and indicated that he wanted to marry the applicant. He would like her to go to Kuala Lumpur again to meet with his elder brothers. However, the applicant refused to do so. Between October and November 2012, via QQ, Ka Ka invited the applicant to visit Nigeria but the applicant hesitated. Ka Ka sweet-talked her and told her not to be scared. In the end, the applicant gave her passport to Ka Ka’s friend for getting a visa that would allow the applicant to go to Nigeria for visiting Ka Ka. Later, Ka Ka once again invited the applicant to go to Malaysia for meeting Joe and claimed that Joe would arrange for their wedding and show her around. Knowing that she would go to Malaysia via Hong Kong, a place where she had not visited, the applicant finally accepted Ka Ka’s proposal of going to Malaysia for meeting Joe first before proceeding to Nigeria. The applicant alleged that having arrived at Malaysia, she was instructed by Joe to go to the same residence. At that time, Joe was not there and she was received by Sam. The applicant went on to allege that in her presence, Michael had sex with a Vietnamese woman and even discarded a condom on the applicant’s belongings. The applicant indicated that she had telephoned Ka Ka to ask how come Joe was not there. Ka Ka said that Joe would return later.
申請人續稱在2012年10月和張姓男子復合，並打算和他在同年聖誕結婚。但在2012年10月24日，卡卡透過QQ再聯絡申請人，表示想和申請人結婚，並希望她能再前往吉隆坡和他的兄長見面，但申請人拒絕。2012年10月至11月期間，卡卡透過QQ邀請申請人前往尼日利亞，但申請人猶豫。卡卡哄着她，叫她不要害怕。結果，申請人將護照交了給卡卡的朋友，以辦理簽證讓申請人前往尼日利亞探望卡卡。其後，卡卡再邀請申請人前往馬來西亞和Joe見面，指Joe會安排他們的婚禮及帶她到處遊玩。申請人指知道會經香港前往馬來西亞，而她沒有來過香港，故最終接受卡卡的建議先前往馬來西亞見Joe，才再前往尼日利亞。申請人指抵達馬來西亞後，Joe指示她前往同一住宅。當時Joe不在，是由Sam接待她。申請人更指Michael在她在場時，和一越南女子性交後，更將一個安全套丟在申請人的物件上。申請人表示曾致電卡卡問為甚麼Joe不在，而卡卡說Joe會遲一些回來。

The applicant alleged that Joe did not show up until 9 p.m. on 4 December 2012. The applicant therefore told Ka Ka that she was discontented about it and that she would never believe him again. However, at that time Ka Ka sweet-talked the applicant into helping Joe bring some clothes back to Guangzhou for a friend of Ka Ka.
申請人指Joe在2012年12月4日晚上9時才出現，因此申請人向卡卡表示不滿，及表示以後不會再信他。但卡卡同時哄申請人着她幫Joe將一些衣物帶回廣州給卡卡的一名朋友。

At about 3 a.m. in the following morning, Joe woke the applicant up and asked her to pack for the return trip to China. Joe stuffed the applicant’s handbag and personal belongings into her backpack and the applicant also put some personal belongings into a reusable bag. Before leaving, the applicant saw Joe putting some clothing into the LV bag in question. Joe escorted the applicant to a taxi and handed the LV bag in question to the applicant on the way to the airport. Joe indicated that the LV bag was to be handed over to Ka Ka’s friend in Guangzhou.
翌日早上3時許，Joe弄醒申請人，着她收拾行李返回中國。Joe將申請人的手袋和個人物品塞進她的背囊，而申請人亦將一些個人物品放入一環保袋內。離開前，申請人看見Joe將一些衣物放入涉案的LV袋內。Joe送申請人坐的士，及在前往機場時將涉案LV袋交給了申請人。Joe表示LV袋是交給卡卡在廣州的朋友。

The applicant indicated that she had inspected the LV bag at the airport and only items of clothing were found. She therefore put those items of clothing back into the bag. The applicant alleged that she had been told that items of clothing were very cheap in Malaysia, so she did not find the incident to be suspicious. The applicant emphasized that she did not receive any remuneration for carrying the LV bag for others. She admitted that the LV bag was particularly heavy but she thought that it was so because of the clothes. She also admitted that she had some suspicions, but it had never occurred to her that the LV bag would contain dangerous drugs. The applicant indicated that she had thought about putting the clothes in the LV bag into a plastic bag, so as to avoid carrying the LV bag. However, the idea was dropped because she was unable to communicate with Joe.
申請人表示在機場有檢視過LV袋，發現只有衫褲，故將衫褲放回袋內。申請人指有人告知她衫褲在馬來西亞十分便宜，故她對事件沒有懷疑。申請人強調並沒有因為替人攜帶LV袋而獲得酬勞。申請人承認感覺LV袋特別重，但認為是因為載有衣物造成。申請人亦承認她有點懷疑，但沒有想過LV袋內會載有毒品。申請人表示曾想過用膠袋裝載LV袋內的衣物，避免要攜帶LV袋，但因為未能和Joe溝通而作罷。

The applicant admitted that she did not know the full names of Ka Ka and his friends. However, she had their phone (numbers) and that of Ka Ka’s brothers. The applicant insisted that she was innocent and had been set up. Moreover, she did not receive any remuneration in the incident. The applicant said that she felt regretful about the incident.
申請人承認不知道卡卡和其朋友的全名，但她有他們和卡卡哥哥的電話。申請人力稱她是無辜的，是被人陷害的，而事件中她亦沒有得到任何酬勞。申請人指自己對事件感到後悔。

The applicant further alleged that she came to Hong Kong for the first time on 5 December 2012. As she did not know how to take the transport for returning to Guangzhou, she planned to telephone Ka Ka’s friend for assistance.
申請人更指2012年12月5日是她首次來香港，並不知道如何在香港坐車回廣洲，故打算打電話給卡卡的朋友求助。

The passport of the applicant confirmed that she had left China for Malaysia from the 13th to the 17th of May in 2011 and from the 10th to the 13th of October in 2012. She entered Malaysia again on 1 December 2012. She travelled overseas to Dubai from 21st to 25th of July in 2011. She indicated that the travelling expenses of the Dubai trip were paid by the insurance company she was working for.
申請人的護照證實她曾在2011年5月13日至17日及2012年10月10日至13日離開中國前往馬來西亞，而在2012年12月1日她再入境馬來西亞。她另外一次外遊是在2011年7月21日至25日前往迪拜，申請人表示前往迪拜的旅遊費用是由工作的保險公司支付。

When she was testifying for her own case, apart from referring to her record of interview for telling the background and giving an account of the incident, the applicant also gave further explanation about the incident.
作供自辯時，除了援引其會面記錄道出其背景及事件的經過外，申請人亦有對事件作出進一步的解釋。

The applicant produced the QQ communication records between her and Ka Ka to the court. The applicant indicated that she had told Ka Ka that she had to bring him to meet her family members. Although Ka Ka said that he did not have the time, he, at the same time, expressed his wish of marrying the applicant in January 2012 and having a son together.
申請人有將她和卡卡在QQ的通訊記錄呈堂。申請人表示曾向卡卡說要帶他見她的家人。雖然卡卡說沒有時間，但同時表示希望和申請人在2012年1月結婚及生兒子。

The applicant also produced other QQ communication records between her and Ka Ka to the court. Her case was that Ka Ka had cheated her by pretending that he would marry her, so that the applicant handed her passport to his friend for getting a visa. The applicant indicated that Ka Ka’s full name was Rubin Kaka.
申請人亦有將她和卡卡的其他QQ通訊記錄呈堂，她的立場是卡卡假意表示會和她結婚來欺騙她，導致申請人將護照交了給他的朋友辦簽證。申請人表示卡卡的名字是Rubin Kaka。

The applicant admitted that she had indicated to the Customs Officer that the LV bag in question was hers and she did casually reply by saying, “Bought (it) yesterday” which was, however, not true.
申請人承認她有向關員表示涉案LV袋是她的，亦有隨口答是她“尋日買嘅”，但這並非實情。

Later, she did explain to the Customs Officer that neither the LV bag nor the items inside the bag were hers and that she was carrying them for others. However, the Customs Officer responded, “What kind of people? Friends? Are they black, too?” The applicant replied in the affirmative, and the Customs Officer further asked her whether she had received money, and the applicant indicated that no money had been received.
其後，她有向關員解釋LV袋和袋內的東西都不是她的，是她幫人拿的，但關員則回應說：“啲咩嘢人呀？啲朋友呀？係咪又係黑人呀？”申請人說是，而關員再問申請人有否收錢，申請人表示沒有收錢。

The applicant alleged that the Customs Officer put on record some words that she had not uttered. However, she did not ask the Customs Officer for amendment because she thought that those were the Customs Officer’s personal record and she did not need to give much weight.
申請人指關員有記錄過一些她沒有說過的話，但她沒有要關員修改，原因是她認為該些只是關員自己的記錄，故她無需重視。

The applicant also gave an explanation about what she had said in the video-recorded interview. The applicant indicated that some of the contents in the record of interview were untrue and incorrect, which was caused by misunderstandings in the conversation with the Customs Officer. She emphasized that she knew that delivering dangerous drugs into China would lead to execution by a firing squad, and therefore she would never be a drugs mule for money or for getting married.
申請人亦有就她在錄影會面時的說法作出解釋。申請人表示會面記錄內容部分不真確，原因是和關員交談時有誤會。她強調知道運毒去中國會槍斃，因此，她不會為錢或為想嫁人而幫人運毒。

The applicant summoned her second elder sister to testify in court on matters relating to applicant’s work, character and so on. The second elder sister of the applicant believed that the applicant had multiple characters and was fun loving, rebellious and stubborn. However, she was retarded and naïve when it came to romance. She trusted others easily and could not differentiate between the truth and a lie. She had low self-esteem and always let her guard down.
申請人有傳召她的二家姐為她作供，就申請人的工作、性格等事項向法庭表述。申請人的二家姐認為申請人有多重性格、貪玩、反叛和固執，但感情方面，則弱智天真、容易信人、不懂分真假、有自卑心和不提防別人。

Directions given to the Jury by the Trial Judge
原審法官向陪審團的指引

The trial judge did explain the point of laws and give a summing-up of the evidence presented by both parties to the jury. The prosecution’s evidence was largely undisputed by the defence. Nevertheless, the trial judge still gave a very detailed summing up of the evidence presented by both parties to the jury. The trial judge pointed out to the jury three issues in this case for their deliberation. Firstly, whether the LV bag carried by the defendant when she was intercepted by the Customs Officer did have hidden in it the dangerous drug alleged by the prosecution, namely the heroin set out in the offence. Secondly, whether the defendant knew that dangerous drugs were hidden inside the LV bag. Thirdly, whether the defendant unlawfully trafficked the dangerous drug in question.
原審法官就涉案的法律問題及控辯雙方的證據都有向陪審團解釋及覆述。辯方對控方的證據爭議不大，但原審法官仍有極為詳細向陪審團覆述雙方的證據。原審法官向陪審團指出他們要考慮涉案的三項爭議，即第一，被告人被海關截停的時候所攜帶的LV袋，是否藏有控方所指的毒品，即控罪所列出的海洛英；第二，被告人是否知道LV袋裡面藏有毒品；及第三，被告人是否有非法販運涉案毒品。

The trail judge pointed out clearly at the beginning of the directions to the jury:
原審法官在引導陪審員時即開宗明義指出：

“…By now, you must have known the prosecution’s allegation against the defendant Miss Zen Xiulan. To put it in very simple terms, (the allegation) is that at about 10:15 a.m. on 5 December 2012, the defendant arrived at Hong Kong International Airport on board a plane from Kuala Lumpur, Malaysia. Having intercepted and checked the defendant, Customs Officers discovered that inside the linings of a handbag with LV pattern carried by the defendant at that time, two packets of heroin hydrochloride, or what we commonly refer to as “white powder”, were hidden. In this case, I’ll simply refer to it as heroin and that handbag with LV pattern, I’ll simply refer to it as the “LV bag”. The prosecution’s allegation is that the defendant, knowing that dangerous drugs were hidden inside the LV bag, imported the dangerous drugs into Hong Kong, brought them into Hong Kong.
“… 到而家大家一定知道控方對被告人曾秀蘭小姐所作出嘅指控。好簡單嚟講，就係被告人喺2012年12月5日大約早上10點15分，喺馬來西亞吉隆坡坐飛機嚟到香港國際機場。海關人員截查被告人之後，發覺被告人當時所孭住一個LV花紋手袋嘅夾層裡面，藏有兩包海洛英鹽酸鹽，即係我哋俗稱嘅「白粉」。喺呢件案件裡面，我就簡單叫佢做海洛英，同埋個LV花紋手袋，我亦簡單叫佢做「LV袋」。控方嘅指控就話被告人係明知道LV袋裡面藏有毒品，就將啲毒品進口香港，帶入嚟香港。

The defence case is that she came to know a black man called Ka Ka via QQ who told her to go to Malaysia for fun and for visiting Ka Ka’s elder brother and talking with him about getting married to Ka Ka. The air ticket was arranged by a friend of Ka Ka in Guangzhou and paid for by Ka Ka. On the way back, Ka Ka’s second elder brother Joe gave this LV bag to her and asked her to hand it over to Ka Ka’s friend in Guangzhou, namely the one who had arranged her air ticket to Malaysia. The defendant said that after opening the LV bag in the airport in Kuala Lumpur, she only saw clothes inside the bag. She checked the clothes and did not find anything unusual although she felt that the LV bag was a bit heavy. However, she did not know that dangerous drugs were hidden inside the LV bag and she brought the LV bag to Hong Kong.”
被告人嘅案情，就係話佢喺QQ上面認識一個叫卡卡嘅黑人，叫佢去馬來西亞玩同埋探卡卡嘅哥哥，並且傾佢同卡卡嘅婚事，而機票係由卡卡嘅一個廣州朋友安排，錢係由卡卡畀。回程嘅時候，卡卡嘅二哥叫做Joe，將呢個LV袋畀佢，叫佢係交畀同佢安排機票去馬來西亞嗰個卡卡廣州嘅朋友。被告人話佢喺吉隆坡機場打開過LV袋，見到裡面係衣服，佢檢查過啲衣服冇乜特別嘢，雖然佢覺得LV袋有啲重，但係佢並唔知道LV袋裡面藏有毒品，而將LV袋係帶咗嚟香港。”

The trial judge pointed out to the jury that there was no direct evidence proving that the applicant knew there were dangerous drugs inside the LV bag or that she knew the dangerous drug inside the LV bag was heroin. The prosecution only relied on the inference which could be drawn from the circumstantial evidence to prove the applicant’s knowledge of hidden dangerous drug inside the LV bag.
原審法官向陪審團指出沒有直接證據證明申請人知道LV袋內藏有毒品或知道LV袋內的毒品是海洛英，而控方只是依賴環境證據能作出的推論來證明申請人知道LV袋內藏有毒品。

On the issue of inference, the trial judge gave the jury the following directions:
就有關推論的議題，原審法官向陪審團作出以下指引：

“ ‘To draw an inference’ means making consideration and assessment on the basis of some confirmed facts to see whether another set of facts can be inferred. However, when you are drawing an inference, you must ensure that the inference is drawn from some facts that have already been proven, or facts that you are sure about having assessed the evidence. In other words, inference can be drawn from facts admitted by the parties, or from facts that you are satisfied after careful consideration and analysis. You must confirm that the inference is the only reasonable inference that can be drawn from these proven facts.
“「推論」嘅意思就係話我哋要喺一啲肯定咗嘅事實基礎上面去考慮、衡量，睇下能唔能夠去推論出另一個事實。但係當你哋作出推論嘅時候，你哋必須確保呢個推論嘅基礎係一啲已經得到確立嘅事實，或者係經過咗你哋衡量證供之後所肯定嘅事實。換言之，推論嘅基礎係可以基於雙方嘅承認事實，亦都可以基於你哋經過周詳嘅考慮同埋分析之後所信納嘅事實。你哋必須確認推論係由呢啲已確立嘅事實裡面，可以作出嘅唯一合理推論。

In this case, if you are going to make any deduction or draw any inference against the defendant, you may only do so if you are sure that it is the only reasonable inference. So, if on the basis of the relevant facts, there is an inference to be drawn against the defendant as well as one in his favour, or there are more than one inference, then you must not draw the adverse inference, because it is not the only reasonable inference.
喺呢件案件裡面，如果你要對被告人作出任何不利嘅推斷、推論，你一定要確保呢個係唯一合理嘅推論先至可以咁做，即係話如果有關嘅事實基礎可以同時對被告人作出有利同埋不利嘅推論，或者作出多過一個推論嘅話，你哋係唔可以對被告人作出一個不利嘅推論，因為呢一個並唔係唯一嘅合理推論。

You have to consider all the evidence in this case to see if the evidence can help you determine whether the defendant knew full well that there was a dangerous drug in the LV bag or she had no idea at all.  You have to consider this: can you or can you not draw the only reasonable inference without any reasonable doubt that the defendant knew that dangerous drugs were hidden in the LV bag. The prosecution case is that all the evidence in this case enables you to draw the only reasonable inference that the defendant did know that dangerous drugs were hidden inside the LV bag. This is the concept of ‘inference’ that I have just explained to you. It means that you have to consider all the evidence in this case in order to decide whether or not you can draw the only reasonable inference that the defendant knew that dangerous drugs were hidden inside the LV bag. Here I am not going to repeat the meaning of the legal principle of ‘inference’, as it has already been explained earlier. ”
大家要考慮案中所有嘅證據，嚟睇下呢啲證據能唔能夠幫助你哋作出裁決，到底被告人對於LV袋裡面藏有毒品係心知肚明，抑或毫不知情。大家要考慮嘅就係你哋可唔可以喺毫無合理疑點之下作出唯一嘅合理推論，就係被告人知道LV袋裡面係藏有毒品。控方嘅講法就話呢件案件裡面所有證據可以令你哋作出一個唯一合理嘅推論，就係被告人對於LV袋裡面藏有毒品係知情嘅，呢個就係講番我正話同大家講嘅「推論」呢個概念。即係話大家要考慮晒所有案中嘅證據嚟決定你哋係咪可以作出一個唯一合理推論，就係被告人知道LV袋裡面係藏有毒品，喺呢度我唔再覆述「推論」呢個法律原則嘅意思，因為較早前已經解釋咗。”

The trial judge used several examples to explain the meaning of an inference. The trial judge also emphasized several times that when making an inference against the applicant, that inference must be the only reasonable inference.
原審法官有給予陪審團多個例子解釋推論的意思，而原審法官多次強調他們作出對申請人不利的推論時，該推論必須是唯一合理的推論。

The trial judge pointed out to the jury that both parties had agreed that the heroin in question was hidden inside the LV bag and the applicant had also admitted to having brought the LV bag from Kuala Lumpur to Hong Kong by plane. However, the prosecution still had to prove that the applicant knew that dangerous drugs were hidden in the LV bag. The trial judge emphasized to the jury that they had to consider whether they could draw the only reasonable inference without any reasonable doubt that the applicant knew that dangerous drugs were hidden inside the LV bag. They could not convict the applicant unless they were sure that the applicant knew that dangerous drugs were hidden inside the LV bag and knowingly brought the dangerous drug from Kuala Lumpur to Hong Kong.
原審法官向陪審團指出雙方同意LV袋內藏有涉案的海洛英，而申請人亦承認有攜帶該LV袋離開吉隆坡，乘坐飛機到香港，但控方仍必須證明申請人知道該LV袋內藏有毒品。原審法官向陪審團強調他們要考慮的就是他們可否在毫無合理疑點下作出唯一合理推論，即申請人知道LV袋內藏有毒品，如他們肯定申請人知道LV袋內藏有毒品，而她是在知情下將毒品由吉隆坡帶來香港，他們才能將申請人定罪。

Grounds of appeal
上訴理由

Mr Chun Keung Leung and Mr Forest Fong, counsel for the applicant contend that the trial judge has failed to point out to the jury the evidence from which inference can be drawn that the applicant had “knowledge”, and has failed to properly point out to the jury if the prosecution evidence could form the basis on which the only reasonable inference of “knowledge” could be drawn. Mr Leung asserts that although the trial judge has told the jury that they had to consider all the evidence in this case, he has failed to point out which evidence may or may not be used against the applicant and for drawing an adverse inference against her. Mr Leung’s stance is that the judge has erred in handling it, rendering the conviction unsafe and unsatisfactory. He cites, as support, HKSAR v Li Yan Hong (CACC114/2012).
代表申請人的梁振強及方林海大律師指原審法官沒有向陪審團指出可依賴作為推論申請人“知情”的證據，亦沒有恰當地向陪審團指出控方就本案證據可否達致唯一“知情”的合理推論的基礎。梁大律師力稱雖然原審法官有向陪審團指出他們要考慮案中所有證據，但卻沒有向陪審團表明那一些證據可以，或不可以作為針對申請人的證據及作出對她不利的推論。梁大律師的立場是原審法官的處理方法不正確，影響有關定罪的穩妥性。他援引HKSAR v Li Yan Hong (CACC114/2012) 案支持他的立場。

Discussion
討論

In the present case, majority of objective facts are not disputed. The undisputed evidence shows that on 5 December 2012, the applicant flew to Hong Kong from Kuala Lumpur carrying a LV bag with the heroin in question hidden inside.
在本案，雙方就客觀事實的爭議不大。無爭議的證據顯示申請人在2012年12月5日乘坐班機由吉隆坡來港，而她攜帶的LV袋內藏有涉案的海洛英。

As pointed out correctly by the trial judge to the jury, the only issue before them was whether the applicant was aware that the dangerous drug in question was hidden inside the LV bag when she brought the LV bag into Hong Kong.
誠如原審法官正確地向陪審團指出，他們唯一要考慮的議題是申請人攜帶LV袋入境香港時，她是否知道該LV袋內藏有涉案的毒品。

When considering the issue mentioned above, the jury should of course consider all of the evidence in the case. This is the directions given to them by the trial judge who has also summed up the case and all of the evidence presented by both parties to the jury. The trial judge emphasized to the jury that:
在考慮上述議題時，陪審團當然要將案件的全部證據都考慮在內。這亦是原審法官向他們作出的指引。原審法官亦有向陪審團覆述案件，及控辯雙方的全部證供。原審法官向陪審團強調：

“You have to consider all the evidence in this case to see if the evidence can help you determine whether the defendant knew full well that there were dangerous drugs in the LV bag or she had no idea at all.
“大家要考慮案中所有嘅證據，嚟睇下呢啲證據能唔能夠幫助你哋作出裁決，到底被告人對於LV袋裡面藏有毒品係心知肚明，抑或毫不知情。

All in all, in the present case, if you are sure that the defendant was aware that dangerous drugs were hidden inside the LV bag, or was even aware that the dangerous drug was heroin, and that under such circumstances, the defendant knowingly brought the dangerous drug to Hong Kong from Kuala Lumpur, then the defendant was unlawfully trafficking in the dangerous drug and you have to find her guilty. However, if you cannot be sure if the defendant was aware that dangerous drugs were hidden inside the LV bag, then you have to find the defendant not guilty.
總括嚟講，喺呢件案件裡面，如果你哋肯定被告人知道LV袋裡面係藏有毒品，或者甚至知道嗰啲毒品係海洛英，同埋被告人喺呢個情況之下，喺知情嘅情況之下，將呢啲毒品由吉隆坡帶嚟香港嘅話，被告人就係非法販運呢啲毒品，你哋就要裁定佢罪名成立，但係如果你哋唔能夠肯定被告人係咪知道LV袋裡面藏有毒品嘅話，你哋就要裁定被告人罪名不成立。

However, as I’ve mentioned just now, the prosecution case is that all the evidence in the case can enable you to draw the only reasonable inference that the defendant has knowingly brought the dangerous drug to Hong Kong from Kuala Lumpur. Members of the jury, you, therefore, have to consider all of the evidence in the present case in order to decide if you are able to draw an only reasonable inference as such. You remember that the defendant has all along maintained that she was not aware that dangerous drugs were hidden in the LV bag, let alone knowing that the dangerous drug was heroin. Naturally, the defendant also denies that she was in possession of the dangerous drug, or has knowingly brought the dangerous drug into Hong Kong. Please remember, if you believe in the words of the defendant, or if you think that there may be some truth in her words, you must find her not guilty. Even if you do not believe or accept the words of the defendant, you must not find her guilty because of that. You still have to consider all the evidence in the case to decide whether the prosecution is able to prove beyond reasonable doubt that the defendant has committed the offence as charged.”
正如我剛才所講，控方嘅講法就話呢件案件裡面嘅所有證據係能夠令到你哋各位作出一個唯一合理嘅推論，就係被告人喺知情嘅情況之下，將呢啲毒品由吉隆坡運嚟香港。各位陪審團，因此你哋要考慮案中嘅所有證據嚟決定你哋可唔可以作出一個咁嘅唯一合理嘅推論。你哋記得，被告人一直都話佢係唔知道LV袋裡面係藏有毒品，佢更加唔知道嗰啲毒品係海洛英，自然地被告人亦都係否認佢管有呢啲毒品，或者將呢啲毒品知情地運入香港。請大家記住，如果你哋相信被告人所講嘅嘢，或者認為被告人所講嘅嘢有可能係真嘅，你哋都要裁定佢罪名不成立。就算你哋唔相信、唔接受被告人所講嘅嘢，你哋亦都唔可以因為呢個原因裁定佢罪名成立，你哋仍然要考慮案中嘅所有證據嚟決定控方係咪能夠喺毫無合理疑點之下，證明被告人觸犯咗佢所面對嘅控罪。”

We disagree with Mr Leung’s allegation that the trial judge has failed to point out to the jury the relevant evidence from which the applicant’s “knowledge” could be inferred. The trial judge did sum up all the evidence from both parties in detail to the jury. The only matter before the jury was whether they could draw the inference that the applicant had “the knowledge” on the basis of the evidence they had accepted. In the present case, the trial judge needed not and should not point out to the jury which evidence they could or could not rely on when drawing the inference. The jury must have been able to tell which type of evidence was for and which type was against the applicant. It takes nothing more than common sense. A trial judge should give the jury a free hand for them to reach a verdict based on their common sense, social experience and observations. Had a trial judge explicitly indicated to a jury that they were only allowed to draw an inference from or act upon certain evidence, the trial judge would have deprived the jury of the function that they should perform.
本庭不同意梁大律師指原審法官沒有向陪審團指出能推論申請人“知情”的有關證據。原審法官有將控辯雙方的全部證據詳細向陪審團覆述，陪審團唯一要考慮的是根據他們接受的證據，他們能否作出申請人是“知情”的推論。在本案，原審法官無需要亦不應該向陪審團指出他們作出推論裁決時，能依賴那一些證據而不能依賴那一些其他證據。陪審團必然能辨別那一類證據是對申請人有利，那一類證據對申請人不利。這只是普通常識，而原審法官須放手由陪審團根據他們的常識、社會經驗和對事物的觀察，作出裁決。假若原審法官向陪審團表明他們只能根據某些證據作出推論或行事，原審法官是剝奪了陪審團應有的職權。

If during the trial, some evidence that should not be considered by jury had been revealed to them, for example, hearsay evidence, evidence whose prejudicial effect has outweighed its probative value, or some irrelevant or unconfirmed evidence, the trial judge should tell the jury that they must not use that evidence as the basis for drawing any inference. If the prosecution has emphasized that certain evidence is sufficient to lead to an inference against the defendant, whereas in fact it is not, the trial judge should also remind the jury so that they would not draw any improper inference against the defendant.
如在審訊過程，有向陪審團披露了某些他們不應該考慮的證據，例如傳聞證據、具損害性遠超其舉證效力的證據，或一些無關或未獲證實的證據時，主審法官理應向陪審團指出他們不能將該些證據作為推論的基礎。如控方強調某些證據足以導致對被告人不利的推論，而事實上該些證據根本不能作出對被告人任何不利的推論時，原審法官亦應提醒陪審團，避免他們不恰當地作出對被告人不利的推論。

In Li Yan Hong cited by Mr Leung, the prosecution emphasized that the defendant had torn away the tag on the suitcase, so as to allege that the defendant was trying to distance herself from the suitcase in question, making use of it to support the prosecution case against the defendant. In fact, the defendant had not concealed her connection with the suitcase in question, and she even told the Customs Officer explicitly that the suitcase in question was hers. However, the trial judge not only failed to make it clear to the jury that they should not act upon the prosecution’s allegation, but even directed the jury that they might use such evidence to draw the inference that the applicant was aware of the hidden dangerous drugs in the luggage.
在梁大律師援引的Li Yan Hong案，控方強調被告人有將行李上的行李牌撕掉，並因而指被告人試圖表明她和涉案的行李無關，並以此來支持控方對被告人的指控。事實上，被告人不但沒有隱藏她和涉案行李的關係，更有向關員表明涉案行李是她的。但原審法官不但沒有向陪審團表明他們不應根據控方的說法行事，更向陪審團指他們可以根據該些證據來推論申請人知悉涉案行李內藏有毒品。

Under the above circumstances, the Court of Appeal held that the conviction was unsafe and unsatisfactory. However, in the present case, there is no information showing that the trial judge has asked or allowed the jury to consider any evidence that they should not take into account. Neither has Mr Leung so alleged. The decision in Li Yan Hong cited by Mr Leung does not support his stance.
在上述情況下，上訴法庭認為有關的定罪裁決是不穩妥的。但在本案沒有任何資料顯示，而梁大律師亦沒有指稱原審法官有邀請或容許陪審團考慮一些他們不應該考慮的證據。梁大律師援引Li Yan Hong案的判決不支持他的立場。

In a criminal case, a trial judge, when directing the jury on the issue of “inference”, does not have to adopt any fixed expression or form. A trial judge only has to bring out three main points:
在刑事案件，就“推論”這議題，主審法官向陪審團作出指引時，無需要採納固定的用詞或模式，主審法官只需要帶出主要三點：

the jury can only draw any inference based on facts. Facts include agreed facts or proven facts accepted by the jury. A jury can only act upon facts, not guesses or speculations;
陪審團只能根據事實作出推論，事實包括雙方同意的或是陪審團接納已獲證明的事實，陪審團只能根據事實，而不能依賴任何猜測或估計行事；

if any adverse or inculpatory inference is to be drawn against a defendant, such inference must not only be logical and in line with common sense, it must also be the only reasonable and irresistible inference; and
如要作出對被告人任何不利或有罪的推論，該些對被告人不利或有罪的推論，不但要合符邏輯、合符常理，更必須是唯一合理和不可抗拒的推論；及

Based on the relevant facts, if both favourable and adverse inferences can be drawn, the jury has to draw the inference for but not against the defendant. The reason is that under such circumstances, the adverse inference against the defendant is not the only reasonable inference.
如根據有關事實，同時可以作出對被告人有利或不利的推論，陪審團要作出對被告人有利而非不利的推論，原因是在上述情況下，對被告人不利的推論並非是唯一合理的推論。

The trial judge, when directing the jury, did explicitly explain the above principle to them. The trial judge has given sufficient, fair and reasonable directions to the jury. The issues in question are all issues of facts and should be left to the jury to determine.
原審法官指引陪審團時，有將上述原則明確地向他們闡述。原審法官向陪審團的指引是足夠的，亦是公平合理的。涉案的議題全是事實議題，理應交由陪審團裁決。

We have already considered the details of the case and the arguments from both parties. The jury definitely has sufficient basis to be sure that the applicant was aware that dangerous drugs were hidden inside the LV bag that she brought into the territories. The applicant has been convicted of unlawful trafficking in a dangerous drug, which we do not find to be unsafe or unsatisfactory. We therefore dismiss the applicant’s application of leave to appeal against conviction.
本庭已考慮過案件的詳情及雙方的論據。陪審團絕對有足夠基礎認定申請人對其攜帶入境的LV袋內藏有毒品一事知情。對申請人被裁定非法販運危險藥物罪罪名成立，本庭不覺有任何不穩妥之處。因此，本庭駁回申請人就定罪提出的上訴許可申請。

Raymond Cheng, Senior Public Prosecutor, for the respondent
答辯人：由律政司高級檢控官鄭凱聰代表。

Chun-Keung Leung and Forest Leung, counsel assigned by Bar Free Legal Service Scheme, for the applicant
申請人：由香港大律師公會法律義助服務計劃委派大律師梁振強及大律師方林海代表。