On the morning of 21 March 2012, the police stopped a private car KX 9176 at Nos 26-36 Prat Avenue, Tsim Sha Tsui.  The applicant (So Tsz Hon), the registered owner of KX 9176, was in the driver’s seat at the material time, while Yip Man Hei (Yip) and Wong Kai Wing (Wong) were in the front passenger seat and the left rear passenger seat respectively.
2012年 3 月 21 日上午，警員在尖沙咀寶勒巷26至36號，截停私家車 KX9176。申請人 (蘇‍子‍幹)是KX9176的登記車主，事發時坐在司機位，而前座及左後座乘客分別是葉‍民‍熙 (葉)和黃‍佳‍榮 (黃)。

Upon search, the police found from the right rear passenger seat a red-coloured bag, inside which were other plastic bags which contained a total of 1.96 kg of a powder containing 1.65 kg of ketamine, the retail value of which was approximately $220,000.
警員在KX9176右後座位搜獲一紅色袋，內有其他膠袋裝載著共重1.96 公斤的粉末，內含1.65 公斤氯胺酮。該批氯胺酮的零售價約為22 萬元。

The applicant, Yip and Wong were arrested.  The applicant said under caution that he had nothing to do with the case.  He said that one “Man Chai” (transliteration) called him on the morning of the material day, telling him to drive to Prat Avenue for something urgent.  When the applicant arrived at Prat Avenue, “Man Chai” got in the car and immediately “dropped” the red-coloured bag in his hand on the rear passenger seat.  The applicant said he did not know that there was drug inside the red-coloured bag.
申請人、葉和黃同被拘捕，警誡下申請人表示事件和他無關。他指當天早上“民‍仔”致電給他表示有急事，要申請人駕車到寶勒巷。當申請人抵達寶勒巷後，“民‍仔”上車並即時“丟低”手持的紅色袋在後座乘客座位，申請人指他不知悉紅色袋內有毒品。

The police also found upon search in KX 9176 other items including two mobile phones (P20 and P23), two notebooks (P14 and P15) and two Octopus Cards (P16 and P17).
警員亦在KX9176內搜獲其他物品，包括兩部手提電話 (P20和P23)、兩本記事簿 (P14和P15)和兩張八達通卡 (P16，P17)。

On the afternoon of the same day, the applicant said in the video-recorded interview with the police that the nicknames of Yip and Wong were respectively “Man Chai” [transliteration] and “Kai Chai” [transliteration], and that he had known them for two months or so.
同日下午，申請人和警員錄影會面時指葉和黃的花名分別是“民‍仔”和“佳‍仔”，及認識了他們約兩個月。

The applicant reiterated that he received Yip’s call in the morning and that, as instructed by Yip, he drove KX 9176 to Prat Avenue and stopped off the entrance of a McDonald’s restaurant.   After receiving a subsequent phone call from Yip, he reversed the car to the downstairs of Sun Hot Sauna.  At that time, he saw Yip and Wong walk out of Sun Hot Sauna and get straight into KX 9176.
申請人重申早上接到葉的電話並按他的指示將KX9176停在寶勒巷麥當勞門口。當他再收到電話後便將車後退至新溫泉桑拿樓下。當時他看見葉和黃由新溫泉桑拿步出並隨即上了KX9176。

According to the applicant, Yip placed a bag on the rear passenger seat, and then went over to take the front passenger seat and put a packet of cigarettes and a phone on the dashboard, whereas Wong took the rear passenger seat.  When the applicant asked him where to go, Yip told him to start off first, but they were stopped by the police right at that moment.
申請人指葉將袋放在後面座位後，坐在前座乘客位並將一包煙、一個電話放在車頭;而黃則坐在後座座位。當申請人問他往那裡去時，葉叫他先開車但他隨即遭警員截停。

When questioned by the police, the applicant reiterated that he did not know that there was drug inside the bag.  In reply to the police’s enquires about the contents of P14, the applicant said that it was a record of the times, dates and places of the rides he gave Yip, for the purpose of collecting remuneration.  The applicant explained that he would charge Yip $300 for the “petrol” every time he gave him a ride to a place designated by him, and P14 recorded some telephone numbers and abbreviations of sundry places.  The record shows that the applicant had received amounts as much as $1,000-odd or even $2,000-odd.  The applicant said that he had asked Yip if he was engaged in illegal activities but Yip had denied.
警員查問他時，申請人重申不知袋內有毒品。警員曾就P14的內容查問申請人，申請人指P14是記錄他接載葉的日子、時間和地方，用作收取酬金。申請人解釋他每按葉指示到一個地方就會收取他300元作為“油錢”，而P14記錄了一些電話號碼和不同地方的簡稱。記錄顯示申請人曾收取的金額高達一千餘甚至2,000多元。申請人指自己有問過葉是否從事非法活動，但葉否認。

The applicant also said that he had written his own name and telephone number in P15, which belonged to Yip, so that people could notify him in case his car blocked anyone’s way.
申請人亦指P15屬於葉而內有他寫下自己的名字和電話號碼，目的是當他的私家車阻塞他人時，方便別人通知他。

The applicant said that P16 was lent from Yip for the purpose of passing the car park barrier and that P17 belonged to himself.
申請人指P16是葉借給他，作入停車場閘口用，而P17則是屬於他自己的。

The applicant said that P20 was “given” to him by Yip for his use, whereas P21 was the applicant’s own, but the SIM card was transferred to P20.
申請人指P20是葉“俾”他用，而P21則是他自己的，但電話卡則轉至P20。

The applicant also gave an account to the police of how he met Wong and their past dealings.
申請人有就認識黃及和他交往的經過向警員作出解釋。

Following the above incident, the applicant was charged with unlawful trafficking with Yip in the ketamine in question.   The applicant pleaded not guilty and was tried before Deputy High Court Judge Yau (the trial judge) sitting with a jury.
上述事件導致申請人被控和葉非法販運涉案的氯胺酮。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 12 April 2013, the applicant was convicted as charged by the jury.  On 15 April 2013, he was sentenced to 16 years’ imprisonment.
2013 年 4 月 12 日，申請人遭陪審團裁定罪名成立，並在2013 年 4 月 15 日被原審法官判入獄16 年。

Represented by Mr So of Counsel, the applicant applied for leave to appeal his conviction and/or sentence.
申請人不服定罪及判刑，由蘇‍啟‍明大律師提出申請，要求獲准就定罪及/或判刑上訴。

At the conclusion of the hearing, we granted leave to the applicant to appeal his conviction and, treating the hearing as the appeal proper, we allowed the appeal, quashed the conviction and set aside the sentence. However, we ordered that the case be remitted to the Court of First Instance for retrial and that the applicant be remanded in custody pending retrial.  The reasons for our decisions are set out below.
經聆訊後，本庭批准申請人就定罪提出的上訴許可申請。本庭視上訴許可申請為正式上訴，並裁定申請人就定罪的上訴得直。本庭撤銷針對申請人的定罪及判刑，但下令案件要發原訟庭重審。本庭將申請人繼續還押，等候重審安排。以下是本庭的判案理由。

Prosecution case
控方立場

There was little dispute over how the incident happened.  The prosecution contended that the evidence was sufficient to prove that the applicant and Yip were in joint possession of the ketamine in question, for the purpose of delivering or supplying it to others.
就案件的案發經過，雙方爭議不大。控方指證據足以顯示申請人和葉共同管有涉案的氯胺酮，目的是將該批毒品運送或供應他人。

It was the prosecution’s case that the applicant knew not only the presence but also the nature of the drug inside the bag placed on the rear passenger seat of KX 9176, and that he was in possession of the drug for the purpose of delivering and supplying it to others.  With a view to proving the applicant’s knowledge, the prosecution witness pointed out in his testimony that when the police tried to stop the applicant for a search, the applicant did not stop the car promptly, but instead drove past the police officer who tried to stop him, as a result of which the police had to stop a police vehicle across Prat Avenue in order to prevent the applicant from driving the car away from the scene.  In his closing submission, prosecuting counsel emphasized to the jury the prosecution’s stance in these terms:
控方指申請人不但知悉該袋毒品放在KX9176的後座位，亦知道其性質而其管有該批毒品的目的是將它們運送或供應給他人。為了證明申請人知情，控方證人作供時指當警員截查申請人時，申請人沒有立刻停車，更駛過截查他的警員身邊，導致警員要將警車橫放在寶勒巷，避免申請人將私家車駛離現場。控方律師向陪審團結案陳詞時，更以下列說法強調控方所持的立場:

“Taking a chance then, moving slowly bit by bit until the car moved away.  What happened in the end?  It got past PW1 and did not stop, even though PW1 gestured and signaled him to stop.  He thought he could get through, going, going away slowly.  But subsequently, the emergency unit vehicle simply blocked Prat Avenue at an angle.  There was no way to escape.  He had no choice but to stop.  That was the defendant, the driver on the material day…”
“跟住搏一搏，慢慢趷趷趷，趷架車出去，結果係點樣樣呢係? 經過咗控方第一證人，人哋做晒手勢，打晒訊號叫佢停車，佢唔停，佢諗住可以過到，走，慢慢走囉咁，但係後屘衝鋒車直情打斜咁樣塞住寶勒巷，無路可逃o‍刺，咁惟有停車，呢個就係被告當日佢係司機嚟嘅…”

The applicant’s case and evidence
申請人的立場和證據

The evidence adduced by the prosecution was largely undisputed. The applicant agreed that the bag of ketamine in question was found upon search from the rear passenger seat of KX 9176.  He also indicated that he knew the bag was there.  However, he denied knowing that the bag contained ketamine or any other contraband.  His case was that he had nothing to do with it, Yip being the sole author of the whole incident.
申請人對控方提出的證據大部分不表異議，他同意涉案的一袋氯胺酮是從KX9176後座搜出。申請人亦表示他知悉該袋物品的存在，但他否認知悉該袋內載有氯胺酮或任何其他違禁品，他的立場是事件由葉一手造成，和他無關。

In his testimony at trial, the applicant said that he used to be a driver by profession, but from April to May 2012, he worked in a computerized automobile services company as a repair and maintenance technician.  He asserted that what he said under caution and throughout the police interviews was true.
作供自辯時，申請人指自己原是職業司機，但在2012 年 4 至 5 月，在一電腦汽車屋做維修服務員。申請人力稱在警誡下及和警員會面時，所說的都是真話。

The applicant went on to say that he was introduced to Yip by one Law Hoi Yiu [transliteration] in early March 2012, and KX 9176 was purchased on the internet for $14,000 in the same month, and since then he had become Yip’s part-time chauffeur.  The applicant stressed that the remuneration of $300 that Yip gave him for every trip was the market price and not a particularly handsome reward.
申請人續稱在2012 年 3 月初透過羅‍鎧‍堯認識了葉，並在2012年 3 月以14,000 元在網上購入KX9176後成為葉的兼職私人司機。申請人強調葉給予他的每程酬金300 元屬市價而非特別豐厚。

The applicant also explained why Yip and Wong kept calling him at 7 am or so on the day of the offence.  He testified that he was still sleeping so he did not answer the phone, and then he even set the phone to the vibration mode and did not answer any call.  Yip therefore had to text him on the phone.  Only at 9:05 am or so did he answer Yip’s call, and then he went to Prat Avenue upon Yip’s instruction.  The applicant reiterated in his evidence that when a police officer tried to stop him, Yip said, “Ignore him, just rush on”, but he still stopped the car because he had done nothing wrong.
申請人亦有就案發當天早上 7 時許葉和黃不斷打電話給他一事解釋。他指初時自己仍在睡覺故沒有接聽來電，後來更將電話設定為震機並完全不接聽來電。葉更因而要發短訊給他。直至早上約 9 時 05 分，他才接聽葉的來電並按他的指示前往寶勒巷。申請人重申當有警員截停他時，葉曾說過“唔好理，衝” ，但他仍將車停下，原因是他沒有犯錯。

The applicant admitted under cross-examination that at the first police interview he did say that he stopped the car because the police vehicle “obstructed” the road, but he also pointed out that even if the police vehicle had not obstructed the road, he would still have stopped the car.  The applicant explained why he opened a bank account without depositing money into it, and also explained his relationships with Yip and Wong and their nicknames.
遭盤問下，申請人承認和警員首次會面時，有說過停車是因為警車“阻住”馬路，但指即使沒有警車阻路，他也會停車。申請人就自己開設銀行帳戶，但沒有存錢入銀行的做法作出解釋，申請人亦有解釋他和葉及黃的關係及對他們的稱謂。

The applicant also explained the contents of the notebook found upon search from KX 9176.
申請人亦有就在KX9176搜獲的記事簿內容作出解釋。

Apart from giving evidence himself, the applicant also called Law Hoi Yiu to give evidence.  Law confirmed that after he came to know Yip in March 2012, he introduced the applicant to Yip as his chauffeur.  Law testified that he did not know much about Yip.
除了作供自辯外，申請人亦有傳召羅‍鎧‍堯作供。羅‍鎧‍堯確認有在 2012 年 3 月認識了葉後，便將申請人介紹給他作司機，羅‍鎧‍堯表示他對葉認識不深。

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

The trial judge gave the jury detailed explanations of both the questions of law and factual issues arising from the case.
原審法官就案件引發的法律和事實議題都有向陪審團詳細解釋。

The trial judge emphasized once and again to the jury that if they could not be sure that the applicant knew that there was drug inside the plastic bag in question, they must return a verdict of not guilty.  The trial judge made it clear that the jury could find the applicant guilty if and only if they were sure that: (1) the applicant knew that there was “drug” inside the plastic bag in question or even knew that the drug was ketamine; (2) the applicant had the intention and ability to have custody of or exercise control over the drug; and (3) the applicant had custody and control of the drug for the purpose of delivering and supplying it to others.  The trial judge emphasized that it was open to the jury to draw a reasonable inference in respect of the purpose of the custody and control of the drug by the applicant, but that if the jury inferred that the applicant had custody and control of those drugs for the purpose of delivering and hence supplying it to others, that inference must be the only reasonable inference, otherwise they would have to acquit the applicant.
原審法官多次向陪審團強調，如果他們不能肯定申請人知道涉案膠袋內裝有毒品，他們必須裁定申請人無罪。原審法官指明要裁定申請人有罪，陪審團必須肯定(一)申請人知悉涉案膠袋內有“毒品” ，甚至知道毒品是氯胺酮;(二) 申請人有意圖及有能力保管或控制該些毒品及(三) 申請人保管及控制該些毒品的目的是運送毒品供應給他人。原審法官強調就申請人保管或控制該些毒品的目的，陪審團可以作出合理推論，但如他們推論申請人保管或控制該些毒品的目的是運送以供應給他人時，他們的推論必須是唯一合理的推論，否則他們要裁定申請人罪名不成立。

The trial judge also gave the following directions to the jury:
原審法官同時向陪審團作出以下指引:

“Now I also need to further explain this to you: if, having considered all the testimonies and all the evidence, you are sure that the defendant was in possession of the drug, but you cannot be sure or do not accept at all that the defendant was in possession of the drug for the purpose of delivering and supplying it to others as alleged by the prosecution, you will still have to find the defendant guilty.  This is because the present case involves a large quantity of drug which is worth up to HK$200,000-odd in value.  Therefore, if you are sure that the defendant was in possession of the drug, then this could not possibly have been for the purpose of self-consumption or visual appreciation.  We have before us evidence on the defendant’s background and financial condition.  Therefore, if, having considered all the evidence, you are sure that the defendant was in possession of the drug, then such possession must have been for the purpose of unlawful trafficking, and no other conclusions can possibly be drawn.  Hence, even if you cannot be sure or do not accept that the defendant was in possession of the drug for the purpose of delivering and supplying it to others, he was still in possession of the drug for other unlawful trafficking purposes.  This must of course rest on the premise that you are sure, first of all, that the defendant was in possession of the drug, and if you cannot be sure that the defendant was in possession of the drug, you must return a verdict of not guilty.”
“喺呢度亦都要進一步向大家解釋，如果你哋考慮過晒所有嘅證供、所有嘅證據，如果你哋肯定被告人係管有呢啲毒品，但係你哋唔肯定或者根本上唔接受控方所指，話被告人嘅目的或者用途係要將呢啲毒品運送去供應畀其他人嘅話，你哋仍然要裁定被告人罪名成立，因為喺呢件案件裡面，呢啲毒品嘅份量好多，價值亦都值成二十幾萬港紙，因此如果你哋肯定被告人係管有呢啲毒品嘅話，佢冇可能係管有毒品作為佢自己吸食嘅用途或者作為觀賞物品，案中裡面有晒被告人背景嘅證據、被告人嘅財政狀況。因此，考慮晒呢啲所有證供嘅話，根本上如果你哋肯定被告人係管有呢啲毒品嘅話，佢一定係將呢啲毒品作為非法嘅販運用途，呢個冇可能有其他嘅結論。所以，就算你哋唔肯定佢係愛嚟運送去供應毒品畀其他人，或者你哋唔接受佢用嚟係運送去供應畀其他人都好，佢都一定係管有呢啲毒品，作為其他嘅非法販運用途。當然個大前提係，你哋要肯定，首先要肯定，被告人係管有呢啲毒品，如果你哋唔肯定被告人管有毒品嘅話，你哋一定要裁定佢罪名唔成立。”

Grounds of appeal
上訴理由

Mr So, Counsel for the applicant, put forward the following grounds of appeal:
代表申請人的蘇‍啟‍明大律師提出以下數點上訴理由:

原審法官錯誤地引導陪審團，指只要他們肯定申請人管有涉案毒品，則他們應裁定申請人販運毒品罪名成立;	The trial judge misdirected the jury that as long as they were sure that the applicant was in possession of the drug in question, they should find the applicant guilty of drug trafficking;
(一)

原審法官錯誤地引導陪審團，指控方無須確認申請人打算以涉案毒品作控方所指的販運用途而只要申請人有其他販運用途便可;	The trial judge misdirected the jury that it was not necessary for the prosecution to prove that the applicant intended to use the drug in question for the trafficking purpose alleged by the prosecution, and that it would be sufficient if the applicant had other trafficking purposes;
(二)

原審法官不但沒有分析或解釋支持申請人知悉膠袋內所載是毒品的證據，包括紅黑簿，更沒有向陪審團表明沒有任何直接證據顯示申請人對毒品的存在及性質知情;及	The trial judge not only failed to analyze or explain the evidence, such as the red-and-black notebook, adduced in support of the allegation that the applicant knew the plastic bag contained drug, but also failed to tell the jury specifically that there was no direct evidence showing that the applicant had knowledge of the existence and nature of the drug; and
(三)

原審法官沒有向陪審團表明證據可能顯示涉案毒品是由葉或黃管有而申請人是不知情的，及即使他知情，但亦可能不清楚該批毒品的真正用途。	The trial judge failed to make it clear to the jury that the evidence might suggest that the drug in question was in the possession of Yip or Wong without the applicant’s knowledge, and that even if the applicant had knowledge, he might have no idea about the real purpose of the drug.
(四)

Mr So contended that whether or not the applicant was in possession of the drug in question for the purpose of unlawful trafficking was a factual issue to be determined by the jury, and that the trial judge should not have directed them that they could jump to the verdict that the applicant was guilty of unlawful trafficking if they firmly believed that the applicant was in possession of the drug in question.
蘇‍大律師力稱，申請人是否管有涉案毒品作非法販運用途是事實裁定，現應由陪審團作出，故原審法官不應指引他們，當他們確信申請人管有涉案毒品，便可以直接裁定申請人非法販運毒品罪成。

At the suggestion of the Court, Mr So advanced a further ground of appeal, namely that the prosecution relied on the applicant’s attempt to flee the scene at the material time as evidence of his knowledge of the drug, but the trial judge failed to give the jury a “flight” direction, and such failure caused injustice to the applicant.
在法庭的建議下，蘇‍大律師提出另一上訴理由，他指控方依賴申請人在案發時試圖逃離現場，目的是要顯示他對毒品知情的，但原審法官卻沒有向陪審團作出“潛逃”(Flight)指引，對申請人不公。

Discussion
討論

The applicant, who was the registered owner of KX 9176, was driving that car at the material time.  The drug in question was found upon search from the rear passenger seat of KX 9176.  The applicant also admitted that he knew that something contained in the plastic bag was inside the car.  The issues were whether the applicant knew that there was drug inside the plastic bag and whether the applicant had the intention and ability to deal with that bag of drugs.  If the applicant knew that there was drug in the plastic bag and he had the intention and ability to deal with them, then he would be regarded as being in possession of that bag of drug.  If the applicant was in fact in possession of the bag of drug, then another issue was whether he was in possession of the bag of drug for the purpose of unlawful trafficking.
申請人是KX9176的註冊車主而案發時亦正駕駛著該輛車，涉案毒品在KX9176的後座座位被搜出而申請人亦承認知悉該包用膠袋包裹的東西在車內。案件的爭議點是申請人是否知悉膠袋內藏有毒品;他是否有意圖及能力處理該包毒品。如申請人知悉膠袋內藏有毒品而他有意圖及能力處理該包毒品，則申請人會被視為管有該包毒品。如申請人確實有管有該包毒品，則另一議題是他管有該包毒品的目的是否作非法販運用途。

Being unable to adduce direct evidence on issues such as the applicant’s knowledge, intention, ability or purpose, the prosecution could only invite the jury to draw adverse inferences against the applicant in respect of those issues.
控方不能就申請人的認知、意圖、能力，目的等議題提出直接證據，而只能邀請陪審團就該些議題作出對申請人不利的推論。

The inference which the prosecution invited the jury to draw was that the applicant not only had knowledge of the nature of the bag of drug, but also had the ability and intention to deal with it, and therefore the applicant was in possession of the bag of drug.  The jury was invited to further infer that the applicant was in possession of the bag of drug for the purpose of unlawful trafficking and to convict the applicant accordingly.
控方要求陪審團作出的推論是申請人不但知悉該包毒品的性質，更有能力及意圖處理它，故申請人是管有該包毒品。控方要求陪審團進一步推論申請人管有該包毒品的目的是作非法販運用途，因此陪審團應裁定申請人罪名成立。

The trial judge made it clear to the jury at the outset of his directions that:
原審法官開始指導陪審團時，就開宗明義地對他們說:

“… in the present case, the most important matters on which you have to decide are whether the defendant knew that there was such a plastic bag in the car, whether he knew that there was drug inside that plastic bag, and whether he was in possession of the drug for the purpose of unlawful trafficking.”
“…喺呢件案件裡面，你哋要決定最重要嘅事項，係被告人知唔知道車廂裡面有呢個膠袋，佢知唔知道膠袋裡面係裝有毒品，同埋佢係咪管有呢啲毒品作非法販運用途。”

The trial judge provided a detailed explanation of “inference”, citing examples to illustrate the meaning of “the only reasonable inference”.  The trial judge made it clear to the jury that they were not allowed to make any adverse inference against the defendant unless it was the only reasonable inference that could be made.
原審法官就“推論”一議題有向陪審團作出詳細解釋，並列出例子解釋甚麼是唯一合理的推論。原審法官向陪審團表明他們不能對被告人作出任何不利的推論，除非該不利被告人的推論是唯一合理的推論。

The trial judge did remind the jury that, although the prosecution case was that the applicant and Yip committed the offence in concert, the jury had to firmly believe that the applicant was in possession of the drug for the purpose of delivering or supplying it to others before they could find him guilty.
原審法官有提醒陪審團控方是指申請人是和葉一起犯案，但他們要裁定申請人有罪前，必須確信申請人管有涉案的毒品而其目的或用途是運送或供應給他人。

The trial judge repeated to the jury in detail the prosecution and defence evidence, including the circumstances of the arrests of the applicant, Yip and Wong as well as their responses.
原審法官有將雙方證據詳細向陪審團覆述，覆述內容包括警員拘捕申請人、葉和黃的經過及他們的反應。

It is for the jury to decide how to make reasonable inferences based on evidence to resolve issues in dispute in a case.
如何根據證據作出合理的推論以解決案件的爭議是陪審團要作出的決定。

The facts of the present case are straightforward and the applicant’s stance was clear.  The issues before the jury were: whether they could draw the only reasonable inference that the applicant knew that there was drug in the plastic bag in question and that the applicant had the intention and ability to deal with the drug; and, if the jury found that the applicant was in possession of the drug, whether the applicant was in possession of it for the purpose of trafficking.
本案案情十分簡單，而申請人的立場亦非常明確。陪審團要解決的議題是他們能否作出唯一合理的推論證明申請人知悉涉案膠袋內載有毒品而申請人有意圖及能力處理該些毒品。如陪審團裁定申請人管有該些毒品，他的目的是否作販運用途。

The directions given by the trial judge on the above issues were thorough, correct and sufficient, except in the following two aspects which are open to question.
就上述議題，除下文提及的兩點是值得商榷外，原審法官給予陪審團的指引是全面、正確及足夠的。

With the trial judge’s directions, the jury must have had a clear picture of the case and the evidence of both parties and must have understood the issues to be decided by them.  We do not consider it necessary for the trial judge to point out to the jury specifically that there was no direct evidence showing that the applicant had knowledge of the existence and nature of the drug in question, or that the evidence might merely suggest that the drug in question was in the possession of Yip or Wong without the applicant’s knowledge, or that even if the applicant had knowledge, he might have no idea about the real purpose of the drug.
根據原審法官的指引，陪審團必能清楚雙方的立場及證據，他們亦會理解要解決的議題是甚麼。本庭不同意原審法官有需要特別向陪審團表明沒有直接證據顯示申請人對涉案毒品的存在及性質知情;或證據可能只顯示涉案毒品是由葉或黃管有而申請人是不知情的，或即使他知情亦可能不清楚該批毒品的真正用途。

The trial judge repeatedly emphasized to the jury that they could convict the applicant only when they were sure that the applicant had knowledge of the presence and nature of the drug in question and were also sure that the applicant was in possession of the drug for the purpose of delivering or supplying it to others.
原審法官多次向陪審團強調，他們需要肯定申請人知悉涉案毒品的存在及其性質，亦要肯定申請人管有該批毒品目的是作運送或供應給他人，才能將申請人定罪。

The trial judge and the jury play different roles in criminal trials in the High Court.  Jurors act as arbiters of fact, and issues such as whether or not a defendant was in possession of drugs and whether the defendant was in possession of those drugs for the purpose of unlawful trafficking, being issues of fact, should be decided by the jury.
在高等法院審理的刑事案件，主審法官和陪審團扮演不同角色。陪審團是事實的裁決者，而被告人是否管有毒品及是否將毒品用作非法販運用途屬事實議題，理應由陪審團作出。

The present case involves ketamine of a total weight of 1.65 kg and with a total value exceeding $200,000.  When the applicant was in possession of such a quantity of ketamine, and in the absence of other acceptable evidence showing that the applicant had credible reasons for possessing such a large quantity of ketamine, it would not be difficult for the jury to draw the only reasonable inference that the applicant was in possession of the drug for the purpose of unlawful trafficking.
本案涉及的氯胺酮重量達1.65 公斤，價值超過20 萬元。當申請人管有該分量的氯胺酮，在沒有其他值得信納的證據顯示申請人有其他合信理由管有該大批氯胺酮時，陪審團不難作出唯一合理的推論就是申請人管有該批毒品作非法販運用途。

On the above issues of fact, the trial judge should not have usurped the jury’s role as arbiters of fact.  It was open to the judge to express his views, but in the end those issues should still be left to the jury for determination.
原審法官不應就上述事實問題篡奪陪審團作為事實裁決者的職能。原審法官可以就上述議題表達其意見，但最終仍應將該議題交由陪審團定奪。

In his directions to the jury, the trial judge said, “if, having considered all the evidence, you are sure that the defendant was in possession of the drug, then such possession must have been for the purpose of unlawful trafficking, and no other conclusions can possibly be drawn.”
原審法官指引陪審團時說“考慮晒呢啲所有證供嘅話，根本上如果你哋肯定被告人係管有呢啲毒品嘅話，佢一定係將呢啲毒品作為非法嘅販運用途，呢個冇可能有其他嘅結論”。

The above direction given by the trial judge is in our view improper.  However, a mistake made by the trial judge does not necessarily lead to the quashing of his judgment by the Court of Appeal unless the mistake has actually resulted in a miscarriage of justice (see section 83(1) of the Criminal Procedure Ordinance).
本庭認為原審法官的上述指引是不恰當的。但原審法官的失誤，不一定會導致上訴法庭去推翻原判的裁決，除非事件實際導致司法不公(見《刑事訴訟程序條例》第83(1)條)。

In our judgment, against the background of the present case, the above mistake made by the trial judge would not have caused any miscarriage of justice.  The jury must have been sure that the applicant knew that the drug in question was inside KX 9176 which was registered in his name and driven by him, and that he had knowledge of the nature of the drug.  The jury must also have been sure that the applicant had the intention and ability to deal with that bag of drug and that he was in possession of that bag of drug.
本庭認為以本案的背景而言，原審法官的上述失誤不會導致任何司法不公。陪審團必然是肯定申請人知悉涉案毒品在其名下及在其駕駛的KX9176上，亦肯定他知悉該些毒品的性質。陪審團亦必然是確信申請人有意圖及能力去處理該包毒品，及認定他管有該包毒品。

Given the quantity and value of the drug in question, and in the absence of any reasonable and credible evidence to the contrary, any reasonable jury would have been sure that the applicant was in possession of the drug for the purpose of unlawful trafficking.  Mr So contended that the trial judge had misdirected the jury by saying that they should convict the applicant of drug trafficking once they were sure that he was in possession of the drug in question, but in our judgment this does not constitute a valid ground of appeal which would be sufficient to overturn the jury’s verdict.
以涉案毒品的分量和價值而言，及在沒有任何合理及可信納的證據顯示任何相反情況時，任何合理的陪審團都必會認定申請人管有該批毒品用作非法販運用途。蘇‍‍大律師指原審法官錯誤地引導陪審團，指他們肯定申請人管有涉案毒品便應裁定他販運毒品罪名成立不構成有效的上訴理由，足以推翻陪審團的定罪裁決。

On the other hand, we consider it improper for the trial judge not to have directed the jury on “flight”.
但本庭認為原審法官沒有給予陪審團“潛逃”指引有不妥之處。

The prosecution case was clear enough: when the police officer tried to stop and search KX 9176, the applicant attempted to drive away from the scene, as a result of which the police had to block Prat Avenue with an emergency unit vehicle so that the applicant could not flee.  If this was indeed the case, the applicant’s attempt to flee would suggest that he had knowledge of the drug, as otherwise there would be no reason for him to have tried to avoid the stop and search by the police.
控方的立場是明確的，即警員截查KX9176時，申請人企圖駛離現場導致警員要將衝鋒車橫放在寶勒巷，令申請人無法逃離現場，假若控方的說法屬實，則申請人企圖逃離現場一事顯示申請人對毒品是知情的，否則他沒有理由要逃避警員的截查。

Mr Jonathan Man, Assistant Director of Public Prosecutions for the respondent, fairly and frankly admitted that the prosecution did rely on the applicant’s attempted flight to strengthen its case that the applicant had knowledge of the drug.
代表答辯人的助理刑事檢控專員萬‍德‍豪亦公平及坦白地承認控方確有依賴申請人企圖逃離現場一事，以加強控方指申請人對毒品是知情的說法。

The applicant reiterated in his evidence that he did not intend to flee at the material time.  He even testified that although Yip asked him to “ignore him, just rush on”, he stopped the car as he had done nothing wrong.
申請人作供時強調在案發時他並沒有打算逃離現場。申請人甚至說葉有要求他“唔好理，衝”，但他仍然將車停下，原因是他沒有犯錯。

This being the case, whether and (if so) why the applicant attempted to flee at the material time would have a material bearing on the issue of whether he had knowledge of the drug.  If the prosecution case was correct, there would be a close connection between the applicant’s flight and the offence with which he was charged, the position being analogous to a defendant who lied  with a view to avoiding criminal liability (See HKSAR v Mo Shiu Shing [1999] 1 HKC 43).
在上述情況下，申請人在案發時是否有逃離現場及如有的話，他逃離現場的原因和申請人對毒品是否知情有舉足輕重的影響。如控方的立場正確，則申請人逃離現場一事和他被控的罪行有緊密的聯繫，情況和一名被告人說謊是為了逃避罪責相同(見 HKSAR v Mo Shiu Shing [1999] 1 HKC 43案)。

Where the prosecution relies on the fact that a defendant has lied as evidence of his guilt, or where a lie told by a defendant will strengthen the case against him, the trial judge is obliged to give the jury a “lies” direction, so as to ensure that the jury will not erroneously return a verdict adverse to the defendant on the basis of the lie (see, for example, HKSAR v Yuen Kwai Choi (2003) 6 HKCFAR 113; HKSAR v Jim Fai (2006) 9 HKCFAR 85).
如控方以被告人曾說謊，以顯示他有罪或被告人的謊言會加強控方對他的指控，原審法官必須給予陪審團“謊言”指引，以確保陪審團不會錯誤地根據被告人的謊言而對他作出不利的裁決(見HKSAR v Yuen Kwai Choi (2003) 6 HKCFAR 113; HKSAR v Jim Fai (2006) 9 HKCFAR 85等案)。

In HKSAR v Chan Boon Ning CACC 571/2001, Stock JA (as he then was) said (at para.48 of his judgment):
上訴法庭法官 (當時官階)司‍徒‍敬在HKSAR v Chan Boon Ning CACC 571/2001案的判案書第 48段有以下說法:

“It seems still not to be appreciated that a lies direction is reserved for the limited circumstances in which a lie is used not merely to undermine the credibility of the defence, but as in itself constituting a separate item of evidence or conduct in support of the case against the defendant, or where there is a danger that the jury might use a lie, not merely as undermining the credibility of a defence, but as itself probative of guilt.”
“有人仍不理解‘謊言指引’只在有限情況適用，即有關謊言並不單單削弱辯方的可信性，其本身更構成獨立的證據或行為，足以支持控方針對被告人的案情，或當陪審團不但可能會利用‘謊言’來削弱辯方的可信性，更可能會利用‘謊言’本身作為被告人有罪的證據。” (非官方翻譯)

It is beyond doubt in the present case that the prosecution did rely on the applicant’s attempted flight at the material time, the allegation being that he had knowledge of the drug and therefore sought to flee in order to escape arrest.  The trial judge should have given the jury a “flight” direction in the following terms:
在本案毫無疑問，控方有利用申請人在案發時企圖逃離現場，原因是申請人對毒品知情，故希望能逃離現場避免遭警方輯捕。原審法官須向陪審團作出“潛逃” (flight)指引，原審法官應向陪審團指出:

“The prosecution alleged that the defendant attempted to flee the scene after the crime, they are therefore entitled to consider whether this supports the case brought against him by the prosecution.  It is necessary for the jury to consider the following questions:
“控方指稱被告人在案發後企圖逃離現場，故他們有權考慮上述事件是否支持控方提出的指控。陪審團必須考慮以下問題:

被告人是否在案發後有企圖逃離現場。如果陪審團肯定他曾這樣做，他們要繼續考慮;	Whether the defendant did in fact attempt to flee after the crime.  If the jury are sure he did, then next consider:
(一)

被告人為甚麼要逃離現場？被告人曾企圖逃離現場一事本身並不足以證明他有罪，一個人可能會基於許多與犯罪無關的理由企圖逃離案發現場，例如他害怕警察，或是曾犯了一些和本案無關的罪行或其他不見得光的行為等。如果他們認為被告人企圖逃離現場的行為確實或可能是因為上述無辜的理由所導致，則陪審團不應理會他曾企圖逃離現場一事。只有陪審團能肯定被告人並非因其他無辜理由，而是因為他知悉自己犯了被指控的罪行故選擇逃離現場避免罪行暴光時，陪審團才可以視被告人試圖逃離現場的行動為支持控方指控被告人的證據。”	Why did the defendant flee?  The mere fact that a defendant attempts to flee is not in itself evidence of guilt.  There are many innocent reasons why a person may do so, for example, out of fear of the police, or due to commission of an offence unrelated to the present one or of some other disgraceful act.  If the jury think that there is, or may be, an innocent explanation for his attempted flight, then they should take no notice of his attempted flight.  It is only if the jury are sure that the defendant did not attempt to flee for an innocent reason, but instead did so by reason of his being aware of having committed the offence in question and hence choosing to flee in order to prevent the offence from coming to light, that they can regard his attempted flight as evidence which supports the prosecution case.”
(二)

In the present case, the applicant’s attempted flight was relied on in support of the prosecution case.  The trial judge’s failure to give the jury a “flight” direction constituted a material irregularity in the trial.  This is tantamount to a judge’s failure to give the jury a “lies” direction where the prosecution relies on lies told by the defendant as evidence of his guilt. ; In both cases, the failure constitutes a material omission which renders the jury’s guilty verdict unsafe (see HKSAR v Sham Kit Yi & Another [2004] 2 HKLRD 407).
在本案，控方以申請人有企圖逃離現場的行為來支持控罪。原審法官沒有向陪審團作出任何＂潛逃”(flight)指引，審訊過程有重大的不當之處。該不當之處等同在控方指被告人的謊言構成該人有罪的證據時，法官沒有給予陪審團“謊言”指引，同屬重大遺漏，令陪審團的有罪裁決變得不穩妥。(見HKSAR v Sham Kit Yi & Another [2004] 2 HKLRD 407案)

Mr Man invited us to dismiss the application for leave to appeal by applying the proviso, arguing that the evidence against the applicant was so overwhelming that any reasonable jury would have found the applicant guilty.
萬‍專員要求本庭行使“但書”駁回上訴許可申請。萬‍專員力稱控方針對申請人的證據是壓倒性的，任何合理的陪審團都會裁定申請人有罪。

With respect, we do not agree.  While it is true that the evidence against the applicant is cogent, the outcome of the case must still hinge on whether the applicant had knowledge of the drug, and there is a direct connection between the allegation of attempted flight against the applicant and his knowledge of the drug. In these circumstances, we do not agree this is an appropriate case in which to apply the proviso.
本庭不同意萬‍專員的立場。無可否認，針對申請人的罪證強而有力，但案件的裁決仍決定在申請人對毒品是否知情，而控方指申請人企圖逃離現場一事正和申請人對毒品知情一事有直接關連。在上述情況下，本庭不同意行使“但書”是合適的做法。

We allow the appeal, quash the conviction and set aside the sentence.  However, we agree that there is sufficient evidence against the applicant and it is only by reason of the material irregularity in the course of trial that the conviction is quashed.  We therefore order that the present case be retried and that the applicant be remanded in custody pending retrial.
本庭裁定申請人上訴得直，並撤銷針對他的定罪和判刑決定。但本庭同意針對申請人的罪證充足而推翻定罪的決定全因審訊過程有重大不當之處造成。因此本庭下令案件要重審，並下令申請人要繼續拘押，等候重審安排。

Mr Jonathan Man, Assistant Director of Public Prosecutions of the Department of Justice, for the respondent
答辯人： 由律政司助理刑事檢控專員萬德豪代表。

由法律援助署委派盧偉強律師樓轉聘大律師蘇啟明代表。	Mr Selwyn So, instructed by Peter W. K. Lo & Co and assigned by the Legal Aid Department, for the applicant (conviction)
申請人(定罪):

由盧偉強律師樓轉聘大律師蘇啟明代表(以義助服務形式)。	Mr Selwyn So, instructed by Peter W. K. Lo & Co and assigned by the Free Legal Service Scheme, for the applicant (sentence)
申請人(判刑):