[ { "doc_id": 1, "seg_id": 1, "translation": { "en": "Background facts", "zh-HK": "背景事實" } }, { "doc_id": 1, "seg_id": 2, "translation": { "en": "The respondent (Ngai Fung-sin) was born on the Mainland. She came to Hong Kong in 1989 and reunited with her parents. She is married and has two daughters, who are respectively nine and six years old.", "zh-HK": "答辯人（倪鳳仙）國內出生，在1989年來港和父母團聚。答辯人已婚，並有兩名女兒，年齡分別約9歲和6歲。" } }, { "doc_id": 1, "seg_id": 3, "translation": { "en": "On 12 December 2005 the respondent opened an account at the Bank of China (Hong Kong) (“the account’). She was the sole signatory of the account. Before 17 January 2011, no Canadian dollar had ever been deposited into or withdrawn from the account.", "zh-HK": "2005年12月12日，答辯人在香港中國銀行開設了一帳戶（該帳戶），是該帳戶的唯一簽署人。在2011年1月17日前，該帳戶沒有任何加拿大元的支存。" } }, { "doc_id": 1, "seg_id": 4, "translation": { "en": "Between 17 and 21 January 2011, five sums of money in Canadian currency, totalling CAD$243,869.23, were transferred through the internet from an account held by two foreigners at the Hong Kong and Shanghai Banking Corporation Limited (Canada) into the account. On 24 January 2011, the Hong Kong and Shanghai Banking Corporation Limited (Canada) informed the Hong Kong and Shanghai Banking Corporation Limited (Hong Kong) that these five internet transfers were done without authorization and that the holders of the account at the Hong Kong and Shanghai Banking Corporation Limited (Canada) did not know the respondent.", "zh-HK": "2011年1月17日至21日，有五筆總額為243,869.23加元的匯款由兩名外籍人士的加拿大匯豐銀行帳戶，經互聯網存入該帳戶。2011年1月24日，加拿大匯豐銀行知會香港匯豐銀行，指上述五筆轉帳存款未經授權，而該加拿大匯豐銀行帳戶的持有人亦不認識答辯人。" } }, { "doc_id": 1, "seg_id": 5, "translation": { "en": "Between 18 and 22 January 2011 the respondent made six withdrawals from the account at three different branches of the Bank of China (Hong Kong). The total amount withdrawn was HK$1,906,800, leaving only about CAD $140 in the account.", "zh-HK": "在2011年1月18日至22日期間，答辯人在香港中國銀行三間不同分行，共六次從該帳戶提取了共1,906,800港元，令該帳戶的結餘減至約140加元。" } }, { "doc_id": 1, "seg_id": 6, "translation": { "en": "Each time after the respondent withdrew money from the account she returned to the Mainland on the same day. After she left Hong Kong on 26 January 2011 she did not come back until 30 December 2011.", "zh-HK": "答辯人每次從該帳戶提款後都會在同日返回內地。她在2011年1月26日離開香港後，便沒有再返港，直至2011年12月30日。" } }, { "doc_id": 1, "seg_id": 7, "translation": { "en": "Since the police had been informed of this matter, upon the respondent’s return to Hong Kong on 30 December 2011 she was intercepted and arrested at the Lo Wu Control Point.", "zh-HK": "由於事件已知會警方，當答辯人在2011年12月30日返港時，在羅湖管制站被截停及拘捕。" } }, { "doc_id": 1, "seg_id": 8, "translation": { "en": "The result of these events was that the respondent was charged with one count of the offence of dealing with property known or reasonably believed to represent proceeds of an indictable offence, which is commonly known as the “money laundering” offence.", "zh-HK": "事件導致答辯人被控一項處理已知道或有合理理由相信為代表「從可公訴罪行的得益的財產」罪，俗稱“洗黑錢”罪。" } }, { "doc_id": 1, "seg_id": 9, "translation": { "en": "The respondent pleaded not guilty and was tried before District Judge Gary Lam (“the trial judge”).", "zh-HK": "答辯人否認控罪，並在區域法院法官林嘉欣（原審法官）席前受審。" } }, { "doc_id": 1, "seg_id": 10, "translation": { "en": "On 4 January 2013 the trial judge found the respondent guilty and on 18 January 2013 sentenced her to 10 months’ imprisonment (“the sentence”).", "zh-HK": "2013年1月4日，原審法官裁定答辯人罪名成立，並於2013年1月18日判她入獄10個月（該判刑）。" } }, { "doc_id": 1, "seg_id": 11, "translation": { "en": "On 23 January 2013 the respondent applied for leave to appeal against her conviction, but on 15 February 2013 she notified the court that she abandoned her application, so her application for leave to appeal against conviction was dismissed.", "zh-HK": "2013年1月23日，答辯人提出上訴許可申請，要求獲准就定罪上訴，但她在2013年2月15日通知法庭，表示放棄申請，因此答辯人針對定罪的上訴許可申請已被撤銷。" } }, { "doc_id": 1, "seg_id": 12, "translation": { "en": "On 1 February 2013 the applicant (Secretary for Justice) took the view that the sentence was so lenient that a reasonable judge, applying his mind to all relevant factors, would not reasonably consider to be within the appropriate range of sentences; and therefore applied to this Court under section 81A of the Criminal Procedure Ordinance, Cap. 221 Laws of Hong Kong, for the review of the sentence. Leave was granted by the Chief Judge of the High Court on 6 February 2013 for the applicant to proceed with the application.", "zh-HK": "2013年2月1日，申請人（律政司司長）認為該判刑過輕，是一名合理法官在考慮過全部有關因素後，不會合理地認為是屬於恰當的判刑範圍之內，故根據香港法例第221章《刑事訴訟程序條例》第81A條提出申請，要求上訴法庭覆核該判刑。申請人提出的刑期覆核申請在2013年2月6日獲高等法院首席法官發出許可，准許進行。" } }, { "doc_id": 1, "seg_id": 13, "translation": { "en": "On 8 May 2013 the respondent stated by way of affidavit that she abandoned her application for leave to appeal against conviction only because she was ignorant of Hong Kong law, but that recently she was informed by her family members that there was fresh evidence and statement which could prove that she did not have any intention to commit the offence and that she was made use of by some people without her knowing anything about it which resulted in her being convicted and sentenced of the offence. She asserted that she did not want to give up her pursuit of the truth just because of her oversight. She emphasized that if she had a conviction record, the future of her daughters would be adversely affected and that therefore she decided to resume her application for leave to appeal against conviction in order that justice would be done.", "zh-HK": "2013年5月8日，答辯人以誓章形式表示她因為不熟識香港法例，故在2013年2月15日放棄其針對定罪的上訴許可申請，但她近期獲家人告知有新證據及證詞證明她並無任何犯罪意圖，而她更是在毫不知情下被他人利用，以致被定罪及判刑。答辯人指自己不希望因疏忽而放棄對真理的追求，她強調如自己有刑事犯罪記錄，女兒的前途會受影響，故決定恢復她針對定罪的上訴許可申請，以便能討回公道。" } }, { "doc_id": 1, "seg_id": 14, "translation": { "en": "The content of the respondent’s affidavit was regarded as her application to the court for treating the Notice of Abandonment of her appeal as a nullity and for restoring her application for leave to appeal against conviction.", "zh-HK": "答辯人的誓章內容被視為她要求法庭將她放棄上訴的通知當作無效，並恢復她針對定罪的上訴許可申請。" } }, { "doc_id": 1, "seg_id": 15, "translation": { "en": "Therefore, we were required to deal with the respondent’s application for restoring her application for leave to appeal and the applicant’s application for review of the sentence.", "zh-HK": "因此，本庭要處理答辯人要求法庭恢復其上訴許可的申請及申請人提出的刑期覆核申請。" } }, { "doc_id": 1, "seg_id": 16, "translation": { "en": "After the hearing, we dismissed the respondent’s application but granted the applicant’s application for review of the sentence, and we increased the respondent’s sentence from ten months to two years. The reasons for our judgment are set out below.", "zh-HK": "經聆訊後，本庭駁回答辯人的申請，但批准申請人的覆核刑期申請。本庭將答辯人的刑期由10個月上調至2年，以下是本庭的判案理由。" } }, { "doc_id": 1, "seg_id": 17, "translation": { "en": "Grounds of the respondent’s application for treating the abandonment of her application as a nullity", "zh-HK": "答辯人要求法庭視其放棄申請無效的理據" } }, { "doc_id": 1, "seg_id": 18, "translation": { "en": "In her affidavit the respondent explained that after the sentence was passed she was put in jail and could not extensively seek advice from professionals whom she trusted as to the details and procedures of her appeal, so that gradually she slacked off in her search for justice, with the result that she abandoned her application for leave to appeal.", "zh-HK": "在其誓章，答辯人力稱自己在判刑後在監獄無法廣泛地向她信賴的專業人士諮詢上訴詳情及程序，令她逐漸怠慢了對公義的追求，並因此放棄上訴許可申請。" } }, { "doc_id": 1, "seg_id": 19, "translation": { "en": "The respondent stated that having thought over this matter again and again and after she learnt from her family members that there was fresh evidence which could prove that she had no intention to commit the offence, that she had been made use of and that she was wrongly sent to jail because she, out of kindness, wanted to help a friend, she decided to resume her application for leave to appeal in order that her conviction would be quashed and justice would be done. She averred that her abandonment of the appeal was only an indication that she was reconciled to the reality and that she treated what happened as a lesson she should learnt, but it did not mean that she admitted she was guilty.", "zh-HK": "答辯人指經反覆思量及在家人告知有證據證明她無犯罪意圖，是遭人利用及因善心幫助朋友而冤屈入獄後，決定重新提出上訴許可申請，以推翻定罪及取回公道。她表示放棄上訴只是接受事實，當事件是一個教訓，而非承認有罪。" } }, { "doc_id": 1, "seg_id": 20, "translation": { "en": "The respondent had abandoned her application for leave to appeal and accordingly the Court of Appeal had dismissed her application. The well established legal principle is that the court has no jurisdiction to deal with afresh a person’s application for leave to appeal unless the person’s abandonment of that application is treated as a nullity. The court has repeatedly stressed that the person has to adduce sufficient evidence to show that the abandonment of his application was not the result of an informed decision, i.e. his mind did not go with the act of the abandonment, before he could convince the court to treat the abandonment as a nullity.", "zh-HK": "答辯人放棄了上訴許可申請，而上訴法庭亦因此已撤銷了該申請。根據確立的法律原則，一名上訴人放棄上訴申請的行為須被視為無效，法庭才有司法管轄權重新處理其上訴許可申請。法庭亦多次強調要說服法庭視放棄申請的行為無效，上訴人必須提出足夠的證據證明他是在不知情的情況下作出放棄行為，即其意願和其放棄行為是不相稱的。" } }, { "doc_id": 1, "seg_id": 21, "translation": { "en": "In HKSAR v Law Sui Kei [2007] 3 HKLRD 114 the Court of Appeal expounded on the legal principle about treating a Notice of Abandonment as a nullity as follows:", "zh-HK": "上訴法庭在香港特別行政區訴羅水基 [2007] 3 HKLRD 114一案中就如何視放棄通知書為無效的法律原則作出以下的闡釋：" } }, { "doc_id": 1, "seg_id": 22, "translation": { "en": "“(1)The right of appeal is conferred by statute. Once an (appeal) applicant has abandoned an appeal, which has accordingly been dismissed, the Court of Appeal does not have any inherent jurisdiction to entertain the reopening of the appeal unless the act of the abandonment is treated as a nullity, or the matter is referred to the Chief Executive under section 83P of the Criminal Procedure Ordinance. Only under the following circumstance may the court treat an applicant’s act of abandonment of an appeal as a nullity: the act of abandonment was not the result of the applicant’s deliberate and informed decision, in other words, the mind of the applicant did not go with his act of abandonment.", "zh-HK": "“(1)上訴權是由法規賦予的。（上訴）申請人一旦放棄上訴，以致上訴被撤銷，除非該放棄行為被視作無效，或是該事按《刑事訴訟程序條例》第83P條給轉交行政長官，否則上訴法庭並沒有固有司法管轄權重新處理上訴。法庭只可以在以下的情況才會視申請人放棄上訴的行為是無效的：申請人不是在知情的情況下刻意決定作出該放棄行為，即申請人的意願跟該放棄行為互不相稱。" } }, { "doc_id": 1, "seg_id": 23, "translation": { "en": "(2)Whether an applicant’s act of abandonment will be regarded as a nullity depends on his understanding of the effect or consequences of the document he was signing or, perhaps, misapprehending the effect of an appeal were he to persist. If the erroneous advice relied upon by the applicant relates to the nature or effect of the act of abandonment, the Notice of Abandonment will be regarded as a nullity. If the applicant who, properly informed, knew the nature and effect of the document he was signing and, with that knowledge, deliberately signed the document, it will be hard pressed to show that that act is a nullity.”", "zh-HK": "(2)申請人放棄上訴的行為可否被視作無效是關乎申請人對於他所簽署的文件的效用或後果是否了解，或者對於他假若堅持上訴的結果是否有所誤解。如果申請人所依賴的錯誤意見，與該放棄行為的性質或效果有關，則該放棄通知書會被視作無效。若申請人在恰當了解有關情況下，知道他所簽署的是什麼文件，亦知道他所簽署的文件的效用，而他在這種知情的情況下，刻意簽署該文件，那他要證明該放棄行為為無效將會非常困難。”" } }, { "doc_id": 1, "seg_id": 24, "translation": { "en": "This principle was reaffirmed by the Court of Appeal in HKSAR v Ooi Lim Khoon [2011] 5 HKLRD 100. The Court of Appeal further held that in considering whether an appellant’s abandonment of his appeal was a nullity, the court’s concern was whether the abandonment of the appeal was the result of a deliberate and informed decision, and that the court did not enquire into the prospects of success of the appeal.", "zh-HK": "上述原則在HKSAR v Ooi Lim Khoon [2011] 5 HKLRD 100案，再次獲上訴法庭確認。上訴法庭更裁定考慮一名上訴人放棄上訴的決定是否無效時，法庭要關注的只是上訴人放棄上訴的決定是否刻意及經考慮後才作出的，而非上訴成功機會的強弱。" } }, { "doc_id": 1, "seg_id": 25, "translation": { "en": "The respondent obviously was aware of the consequence which the abandonment of her application for [leave to] appeal would lead to. When she signed the Notice of Abandonment of her appeal she knew the nature of the Notice and certainly understood its effect. She also stated that she decided to abandon her application for [leave to] appeal against conviction only after careful consideration. It was only subsequently for some reason she changed her mind and hoped that she would be granted leave at her renewed attempt to appeal. The appellant’s decision to abandon her appeal was a deliberate decision made after she had considered the matter, and was a decision that accorded with her intention.", "zh-HK": "答辯人顯然知悉她放棄上訴申請會衍生的結果。她在簽署放棄上訴通知書時也知悉該份通知書的性質，亦必然知悉該份通知書的效用。她更表明是經過深思熟慮後才決定撤銷上訴定罪申請。答辯人只是事後因某種原因改變主意，希望再獲批准提出上訴。答辯人放棄上訴的決定是刻意及經考慮後才作出的決定，亦是符合其意願的決定。" } }, { "doc_id": 1, "seg_id": 26, "translation": { "en": "In these circumstances the respondent’s application did not comply with the principle laid down in Law Sui Kei. This Court does not have jurisdiction to reopen the appeal which she hoped to lodge.", "zh-HK": "在這情況下，答辯人的申請不符合上述羅水基案定下的原則，本庭沒有管轄權重新處理她希望提出的上訴。" } }, { "doc_id": 1, "seg_id": 27, "translation": { "en": "Furthermore, looking at the background of this case and taking into account the respondent’s manner of dealing with the large amounts of money of dubious origin in the account, it could be said that the argument that she was just misled by her good friend and that when she was dealing with the money she had no reasonable grounds to believe that it was “black money” was plainly unconvincing.", "zh-HK": "再者，以事件的背景而言，及考慮到答辯人處理該帳戶內大筆不明來歷的款額之方法，有關她只是誤信好友並在處理該筆巨額款項時，沒有合理理由相信該筆款項是“黑錢”的說法根本不具任何說服力。" } }, { "doc_id": 1, "seg_id": 28, "translation": { "en": "Therefore, we rejected the respondent’s application for treating the Notice of Abandonment of her appeal as a nullity. We only dealt with the applicant’s application for review of the sentence.", "zh-HK": "因此，本庭不批准答辯人要求法庭將其放棄上訴通知書視為無效的申請。本庭只處理申請人的覆核刑期申請。" } }, { "doc_id": 1, "seg_id": 29, "translation": { "en": "Mitigating factors submitted by respondent", "zh-HK": "答辯人的求情理由" } }, { "doc_id": 1, "seg_id": 30, "translation": { "en": "At the trial the respondent explained that she committed the offence because in her mind what she intended to do was just to help her friend and she thought that what she was asked to do would cause her no sweat at all.", "zh-HK": "原審時，答辯人指自己犯案，原因是一心幫朋友，以為只是舉手之勞。" } }, { "doc_id": 1, "seg_id": 31, "translation": { "en": "The respondent stated that she was a good friend of Madam Chen Yan [transliteration of 陳雁], who was a Mainlander, and that at the request of Madam Chen she let Madam Chen use the account for receiving a sum of remittance in Canadian currency. It turned out that within five days five sums of remittance, totalling CAD$243,869.23 were paid into the account. The respondent further said that she had acted upon Madam Chen’s instructions on a number of occasions to withdraw cash and had taken a total of HK$1,906,800 to the Mainland, which she gave to Madam Chen.", "zh-HK": "答辯人表示她是內地人陳雁女士的好朋友，而她亦是應陳女士的要求，將該帳戶借予陳女士來接收一筆加元匯款。結果該帳戶在5天內接收了五筆總額為243,869.23加元的匯款。答辯人更指自己應陳女士的要求多次提取現金，把共1,906,800港元帶回內地給陳女士。" } }, { "doc_id": 1, "seg_id": 32, "translation": { "en": "The respondent maintained that she did what she did out of kindness but was made use of by her friend. She asserted that in this incident she not only did not gain any benefit, but she had spent time and had suffered financial loss in the form of traffic expense, though it was small in amount. At the trial, the respondent’s legal representative repeatedly submitted that she had two young daughters who needed her care and attention, and asked the court to temper justice with mercy by giving her a lighter-than-usual sentence. Her legal representative urged the court that the circumstances of this case, in particular the family condition of the respondent, were such that it was open to the court to deal with her with compassion and leniency.", "zh-HK": "答辯人力稱自己是好心，但遭朋友利用。她表示自己在事件中不但沒有得益，更要付出時間和小量交通費之金錢損失。原審時，代表答辯人的律師更多番強調答辯人有兩名年幼女兒要她照顧，故要求法庭法外施恩，判處答辯人較輕的判刑。該律師力稱本案的情況，特別是答辯人的家庭情況，容許法庭以憐恤之心及寬大方法處置答辯人。" } }, { "doc_id": 1, "seg_id": 33, "translation": { "en": "Trial judge’s reasons for sentence", "zh-HK": "原審法官的判刑理由" } }, { "doc_id": 1, "seg_id": 34, "translation": { "en": "Before passing sentence, the trial judge called for a welfare report on the two daughters of the respondent. The trial judge said that the respondent’s mother-in-law could come to Hong Kong from the Mainland to help her take care of her daughters and that the respondent’s mother, if necessary, could also help her in that matter.", "zh-HK": "原審法官判刑前，有索閱答辯人兩名女兒的福利報告。原審法官指出答辯人的家姑可以由內地來港，協助照顧她的兩名女兒，而答辯人的母親在有需要時，也可協助照顧該兩名女兒。" } }, { "doc_id": 1, "seg_id": 35, "translation": { "en": "The trial judge emphasized the serious nature of the offence of “money laundering” and pointed out that according to the sentencing guideline set in HKSAR v Hsu Yu Yi [2010] HKLRD 536, if the “black money” involved was between $1,000,000 to $2,000,000 the starting point should be in the order of three years’ imprisonment.", "zh-HK": "原審法官強調“洗黑錢”罪行的嚴重性，亦指出根據香港特別行政區訴許有益 [2010] 5 HKLRD 536案定下的量刑原則，如涉案“黑錢”的金額是100至200萬元，量刑基準應約為3年監禁。" } }, { "doc_id": 1, "seg_id": 36, "translation": { "en": "The trial judge said that besides the $1,900,000, cross-border criminal activities were also involved in this case.", "zh-HK": "原審法官指出案件除了涉及190萬元外，亦涉及跨境犯罪。" } }, { "doc_id": 1, "seg_id": 37, "translation": { "en": "Having said that, the trial judge went on to say, ‘The defendant is a first time offender. She explained that she just wanted to help a good friend. The “money laundering” activities were parts of one single, isolated incident. The defendant wrongly reposed her trust in her good friend. The wrong she did was failure to make enquiries, not knowingly breaking the law.’", "zh-HK": "但原審法官指出：“被告初犯；聲稱幫助好朋友；「洗錢」活動屬單一獨立事件；被告人錯信好友，錯在「不聞不問」而非明知故犯。”" } }, { "doc_id": 1, "seg_id": 38, "translation": { "en": "Finally, the trial judge made the following comments:", "zh-HK": "原審法官最終有以下評論：" } }, { "doc_id": 1, "seg_id": 39, "translation": { "en": "‘ As regards the term of imprisonment, the defendant is indeed different from the offenders in the usual “money laundering” cases who sold their accounts to some people or gave some people the use of their accounts. I can exercise my discretion and give her a shorter sentence. In my view, the appropriate starting point is 10 months’ imprisonment. Since the defendant is convicted after trial, she is not entitled to the one third discount given in the case of a guilty plea and, in the absence of any other mitigating factors capable of reducing the sentence, I sentence her to 10 months’ imprisonment. I emphasize that the court has treated the defendant in a particularly lenient way and has imposed a prison term as short as possible.’", "zh-HK": "“刑期方面，被告人的確與一般「洗黑錢」案的「售賣戶口」或「借出戶口」罪犯有別，可酌情判處較短的刑期。本席認為，適當的量刑基準是10個月監禁。由於被告人經審訊後定罪，不能獲得「認罪」的三分一刑期扣減。同時，亦沒有其他減刑理由可將刑期縮短。因此，判刑是10個月監禁。本席強調，法庭已對被告人格外施恩，在刑期作出最大的寬減。”" } }, { "doc_id": 1, "seg_id": 40, "translation": { "en": "Applicant’s grounds of review", "zh-HK": "申請人的覆核理由" } }, { "doc_id": 1, "seg_id": 41, "translation": { "en": "Mr. Tam, Deputy Director of Public Prosecutions, for the applicant, submitted that the “black money” involved in this case was close to HK$2,000,000, which was transferred to the account on five separate occasions without the authorization of the owners. Mr. Tam stressed that the respondent made six withdrawals within five days, withdrawing over HK$1,900,000 in cash and on the very same day she personally took the cash to the Mainland.", "zh-HK": "代表申請人的副刑事檢控專員譚耀豪指出案件涉及的“黑錢”近200萬港元，是未經擁有人授權而分五次轉入該帳戶。譚專員強調答辯人是在5天內，6次以現金提取超過190萬港元，並即日親自將現金帶返內地。" } }, { "doc_id": 1, "seg_id": 42, "translation": { "en": "Mr. Tam submitted that the amount of “black money” involved was substantial, that the respondent had actively participated in the crime and that the case had an international dimension.", "zh-HK": "譚專員認為涉案“黑錢”數額大，答辯人亦有積極參與罪行，而罪行更涉及國際層面。" } }, { "doc_id": 1, "seg_id": 43, "translation": { "en": "Mr. Tam emphasized that in cases of this nature in which the “black money” involved amounted to $2,000,000 or so, the sentence should not be less than two years and the appropriate starting point should be three years.", "zh-HK": "譚專員力稱同類及涉及約200萬元“黑錢”的案件，判刑不應少過2年，而適當的量刑基準更應是3年。" } }, { "doc_id": 1, "seg_id": 44, "translation": { "en": "Mr. Tam contended that the trial judge should not have given the respondent an exceptionally lenient sentence just because she wrongly trusted her friend and the wrong she did was failure to make enquiries about the source of the “black money”.", "zh-HK": "譚專員認為原審法官不應因為答辯人是錯信朋友，及錯在對“黑錢”的來源「不聞不問」，而額外輕判答辯人。" } }, { "doc_id": 1, "seg_id": 45, "translation": { "en": "Mr. Tam pressed the point that as far as the “money laundering” offence is concerned, the ‘defendant’s ignorance of the actual source of the “illicit money” is not necessarily a mitigating factor. On the other hand, if there is evidence to prove that the money involved in the offence was actually “illicit money”, that it was derived from serious crimes and that the defendant was aware of its origin, that would be an aggravating factor.’", "zh-HK": "譚專員力稱在“洗黑錢”罪行，“被告人不知道「黑錢」的確實來源，亦不一定是減刑因素。反而言之，如有證據證明涉案金錢確是「黑錢」，源自嚴重罪行，而被告人知悉「黑錢」的來源，則是加重罪責因素”。" } }, { "doc_id": 1, "seg_id": 46, "translation": { "en": "Mr. Tam considered that even if the respondent’s assertion that she had never received any reward for committing the offence was true, so that her culpability was lesser than that of the defendants in other cases of similar nature who had received a reward, the trial judge should not have drastically reduced the starting point from the appropriate term of three years to 10 months.", "zh-HK": "譚專員認為即使答辯人聲稱犯案並無收取報酬的說法屬實，以致其罪責較其他同類案件有收取報酬的被告人的罪責為輕，原審法官亦不應將適當的3年量刑基準大幅度減至10個月。" } }, { "doc_id": 1, "seg_id": 47, "translation": { "en": "Mr. Tam submitted that there were three aggravating factors in the present case: (1) The amount of money was about $1,900,000; (2) The respondent not only gave the account to another person for that person to use, but also within a matter of five days, she, on six occasions, personally withdrew the money and took the cash to the Mainland, which demonstrated that she actively and personally participated in the “money laundering” activities; and (3) an international element existed in this case, because the “illicit/black money” had its origin in Canada but was remitted to Hong Kong and then taken to the Mainland by the respondent. Mr. Tam added that the not guilty plea of the respondent showed that she was unremorseful.", "zh-HK": "譚專員強調本案有三項加重罪責因素：（一）數額約190萬元；（二）答辯人不僅借出該帳戶，更在5天內6次親自提款及將現金帶返內地，顯示她有積極及親自參與“洗黑錢”活動；及（三）案件涉及跨國因素，原因是“黑錢”源自加拿大，匯至香港及由答辯人帶返內地。譚專員亦指出答辯人不認罪，顯示她全無悔意。" } }, { "doc_id": 1, "seg_id": 48, "translation": { "en": "Mr. Tam concluded that the original sentence of ten months’ imprisonment fell “outside the range of sentences which a judge, applying his mind to all the relevant factors, could reasonably consider appropriate”.", "zh-HK": "譚專員認為原判的10個月刑期“超出了法官經考慮所有有關因素後可合理地認為恰當的判刑範圍”。" } }, { "doc_id": 1, "seg_id": 49, "translation": { "en": "Respondent’s position", "zh-HK": "答辯人的立場" } }, { "doc_id": 1, "seg_id": 50, "translation": { "en": "Mr. Yip, counsel for the respondent, submitted that the sentence in a “money laundering” case had to be determined according to the circumstances of that particular case, and that the court should take into account other factors apart from the amount of money involved and the cross-border criminal activities in order to reach the appropriate sentence. Mr. Yip emphasized that a close and profound relationship existed between the respondent and Madam Chen Yan and that in the respondent’s mind, what she intended to do was only to help Madam Chen but she was made use of by her and hence committed the offence. Mr. Yip considered that these factors should be regarded as mitigating factors, and he cited HKSAR v Chiu Kit & Zhao Hongqing (CACC 210/2009) and HKSAR v Chan Wai Yan [2012] 4 HKLRD 189, 195 (paragraphs 22-24) to support his position.", "zh-HK": "代表答辯人的葉劍明大律師力稱“洗黑錢”案件的判刑，必須根據個別案件的情況而定，而法庭更要考慮涉案金額和跨境犯罪外的其他因素，作出適當的判刑。葉大律師強調答辯人和陳雁女士關係深厚，而答辯人只是一心幫助她及遭她利用而犯案。葉大律師認為上述因素應視為減刑理由，並援引HKSAR v Chiu Kit & Zhao Hongqing （CACC 210/2009）及香港特別行政區訴陳慧茵 [2012] 4 HKLRD 189，195（第22-24段）等案件支持其立場。" } }, { "doc_id": 1, "seg_id": 51, "translation": { "en": "Mr. Yip also stressed that the respondent had no previous convictions and that she did not obtain any personal gains in this case. He argued that the trial judge was reasonable in finding that the present case was different from the usual “money laundering” cases in which what the offenders did was selling their accounts to some people or giving some people the use of their accounts. He said the trial judge’s taking into account of the condition of the respondent’s two daughters in passing sentence was an approach which struck a proper balance between compassion and justice, because only the respondent could properly take care of her two daughters.", "zh-HK": "葉大律師亦強調答辯人沒有刑事記錄，而在案件中亦沒有獲取個人利益。他認為原審法官合理地裁定本案和一般「洗黑錢」案的「售賣戶口」或「借出戶口」行為有別。而原審法官在判刑時將答辯人兩名女兒的情況考慮在內，更是情理兼備的處理方法，原因是只有答辯人才可以恰當地照顧該兩名女兒。" } }, { "doc_id": 1, "seg_id": 52, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 1, "seg_id": 53, "translation": { "en": "This Court has on many occasions repeated the warning that “money laundering” is a very serious crime. One of the reasons is that in a modern society perpetrators of serious crimes are very often motivated by financial gains, so that to combat the crime of “money laundering” can be an effective measure against such serious crimes.", "zh-HK": "本庭屢次強調“洗黑錢”是十分嚴重的罪行，原因之一是近代社會，眾多嚴重罪行犯案者的動機都是為了獲取經濟得益，因此打擊“洗黑錢”罪行亦是打擊該類嚴重罪行的有效方法。" } }, { "doc_id": 1, "seg_id": 54, "translation": { "en": "Generally speaking, the sentence passed in a “money laundering” case is primarily to reflect the amount of the “illicit/black money” involved. Neither the fact that the “illicit/black money” was actually not derived from an indictable offence nor the defendant’s ignorance of the actual source of the “illicit/black money” is necessarily a valid mitigating factor. On the other hand, if there is evidence which can prove from what serious crimes the “illicit/black money” was derived and if the defendant was aware of the origin of the “illicit/black money”, that would be an aggravating factor (see Secretary for Justice v Lau Man Ying [2012] 4 HKLRD 429 and HKSAR v Xu Xia Li & Anor [2004] 4 HKC16). Based on the same rationale, the fact that the defendant of a “money laundering” case has not obtained any financial benefit is not a mitigating factor.", "zh-HK": "一般而言，“洗黑錢”罪行的判刑主要是反映“黑錢”的數額。涉案的“黑錢”事實上並非是源自可公訴罪行，或被告人不知道“黑錢”的確實來源不一定是有效的減刑因素。反之，如有證據證明“黑錢”源自甚麼嚴重罪行，而被告人知悉“黑錢”的來源，則這構成加重罪責的因素（見律政司司長訴劉文英 [2012] 4 HKLRD 429及HKSAR v Xu Xia Li & Anor [2004] 4 HKC16等案）。同樣道理，“洗黑錢”案件的被告人沒有經濟得益，並非減刑理由。" } }, { "doc_id": 1, "seg_id": 55, "translation": { "en": "The respondent claimed that she wrongly believed her good friend and that her sole purpose of using her own bank account to receive the remittances was to help her friend. She stressed that the help she gave to her friend caused her no sweat and that she obtained no benefit at all from what she did.", "zh-HK": "答辯人聲稱自己誤信好朋友，一心幫助朋友，利用自己的銀行帳戶接受匯款，答辯人更指她協助朋友的行為只是舉手之勞，而自己完全沒有獲得任何利益。" } }, { "doc_id": 1, "seg_id": 56, "translation": { "en": "What the respondent said was nothing but her own one-sided version of the story. Even on her own evidence, Madam Chen was just her friend, she should not have succumbed to the influence of her friend and committed the offence. The principles laid down by this Court in Chiu Kit & Zhao Hongqing and Chan Wai Yan are not applicable to a relationship between friends, otherwise in any case of “money laundering” the defendant can say that he committed the offence because he was influenced by his friend and ask for leniency on this ground. In a “money laundering” case, the sentence ‘should mainly reflect the amount of “black money” laundered and not the benefit obtained by the defendant or others. The reason being that it is very difficult to prove the benefit concerned…’ (see paragraph 13 of the judgment of Secretary for Justice v Wan Kwok Keung, CAAR13/2010).", "zh-HK": "答辯人的說法只是她片面之詞，而即使根據她的說法，陳雁女士只是她的朋友，答辯人不應受朋友之影響而犯案。本庭在Chiu Kit & Zhao Hongqing及陳慧茵等案所定下的原則不適用於朋友之間的關係，否則任何“洗黑錢”案件，被告人都可以說成是受朋友影響而犯案，故應輕判。在“洗黑錢”案，“判刑應主要反映清洗‘黑錢’的數額，而非被告人或其他人的得益。原因是要證明有關得益，非常困難…”（見律政司司長訴雲國強CAAR13/2010案判案書第13段）。" } }, { "doc_id": 1, "seg_id": 57, "translation": { "en": "We cannot overlook the fact that each time when money was remitted to the account the respondent would, shortly afterwards, withdrew most of the money in the form of cash and take it away from Hong Kong. This showed that she definitely had reasonable grounds to believe that these sums of money came from some suspicious sources.", "zh-HK": "本庭不能忽視當有款項匯進該帳戶後，答辯人會在很短時間將大部分款項以現金提取及帶離香港，這顯示她必然有合理理由相信款項來歷不明。" } }, { "doc_id": 1, "seg_id": 58, "translation": { "en": "The trial judge said that the culpability of the respondent was different from that of the offenders in the usual “money laundering” cases who sold their accounts to some people or gave some people the use of their accounts. We do not understand what difference the trial judge was referring to. If the trial judge compared the respondent’s conduct with the conduct of the offenders in the usual “money laundering” cases, namely selling their accounts to some people or giving some people the use of their accounts —— those offenders only sold their accounts or allowed some people to use their accounts for “money laundering” but they did not directly take part in dealing with the illicit/black money —— [he should have noticed that] the culpability of the respondent was more, not less, serious than that of those offenders.", "zh-HK": "原審法官指“答辯人”的罪行與一般「洗黑錢」案的「售賣戶口」或「借出戶口」的罪犯之罪行有別。本庭不理解原審法官所指的分別是甚麼。假若原審法官是將答辯人的行為和一般「洗黑錢」案的「售賣戶口」或「借出戶口」的罪犯的行為相比，即該些罪犯只是“售賣或借出戶口”給他人用作“洗黑錢”用途而沒有直接參與處理“黑錢”，則答辯人的罪行實較該些罪犯的罪行更為嚴重，而非較輕。" } }, { "doc_id": 1, "seg_id": 59, "translation": { "en": "The respondent not only allowed other people to use the account to receive “illicit/black money” which came from a foreign country, but she also directly dealt with the “illicit/black money”, including withdrawing the money from the account and then taking it away from Hong Kong. The fact that she did not gain any benefit was not a valid mitigating factor.", "zh-HK": "答辯人不但借出該帳戶給他人收取源自外國的“黑錢”，更直接處理“黑錢”，包括從該帳戶提取“黑錢”後再將“黑錢”帶離香港。答辯人沒有得益，並非有效的減刑理由。" } }, { "doc_id": 1, "seg_id": 60, "translation": { "en": "We do not approve the trial judge’s passing an extremely lenient sentence on the respondent for the reason that she was different from the offenders in the usual “money laundering” cases who sold their accounts to some people or gave some people the use of their accounts.", "zh-HK": "本庭不同意原審法官以答辯人與一般「洗黑錢」案的「售賣戶口」或「借出戶口」的罪犯有別為理由，而酌情判處答辯人極輕的刑期。" } }, { "doc_id": 1, "seg_id": 61, "translation": { "en": "In our view, actually there is an aggravating factor in this case in that the respondent personally dealt with the “illicit/black money” in the account, in particular she withdrew the money and shortly after that she took it away from Hong Kong.", "zh-HK": "本庭認為答辯人有份親自處理該帳戶內的“黑錢”，特別是在提取“黑錢”後很短時間內將“黑錢”帶離香港，更是加重罪責因素。" } }, { "doc_id": 1, "seg_id": 62, "translation": { "en": "At the trial, it was submitted on behalf of the respondent that she had two young daughters who needed her care and attention. The court was urged to take into account the effect of the respondent’s sentence on her daughters and to sentence her leniently and in a compassionate way.", "zh-HK": "原審時，代表答辯人的律師強調答辯人有兩名年輕女兒要她照顧，並要求法庭考慮答辯人的判刑對她女兒的影響，而格外施恩及施而憐恤的判刑。" } }, { "doc_id": 1, "seg_id": 63, "translation": { "en": "It is certainly true that when passing sentence the court should not totally ignore the consequences which the defendant and his family would suffer as a result of the sentence, but in considering the sentence to be passed in respect of a serious crime, the court cannot pay too much attention to how the defendant and his family would be affected by the sentence and so sentence the defendant in an exceptionally compassionate manner; otherwise, a wrong message could be given which might encourage criminals to commit serious crimes.", "zh-HK": "當然判刑時，法庭不應完全不理會判刑對被告人及其家人的影響，但在處理嚴重罪行的判刑時，法庭不能太注重判刑對被告人及其家人的影響而施以特別憐恤的判刑，否則會給予錯誤的訊息，鼓勵罪犯干犯嚴重罪行。" } }, { "doc_id": 1, "seg_id": 64, "translation": { "en": "“Money laundering” is a very serious crime, because it indirectly furthers the commission of serious crimes, especially international crimes; therefore, the court must deal with “money laundering” seriously in order to produce a deterrent effect. As a matter of fact, the effective crackdown on “money laundering” can discourage the commission of other serious crimes.", "zh-HK": "“洗黑錢”罪行十分嚴重，原因是該罪行間接鼓勵嚴重罪行，特別是跨國罪行。因此法庭必需嚴苛對待“洗黑錢”罪行以收阻嚇作用。事實上，有效打擊“洗黑錢”罪行是可以威攝其他嚴重罪行的。" } }, { "doc_id": 1, "seg_id": 65, "translation": { "en": "On the authority of Wan Kwok Keung, Hsu Yu Yi, HKSAR v Poon Lok Man (CACC 171/2012) and HKSAR v Zhan Jian Fu (CACC 258/2007), when the amount involved in the “money laundering” is $2,000,000 or so, the starting point is around three years’ imprisonment.", "zh-HK": "根據雲國強、許有益、香港特別行政區訴潘樂民（CACC 171/2012）和香港特別行政區訴詹劍富（CACC 258/2007）等案，如“洗黑錢”罪所涉及的金額約是200萬元，量刑基準約為3年監禁。" } }, { "doc_id": 1, "seg_id": 66, "translation": { "en": "The “illicit/black money” involved in the present case was about $1,900,000. The facts showed that what the respondent did was not limited to allowing the account to be used for “money laundering”; in addition to that she personally and actively dealt with the “illicit/black money”. We cannot shut our eyes to the international element featured in this case, i.e. the “illicit/black money”, which had its origin in Canada, was remitted to Hong Kong and then taken to the Mainland by the respondent.", "zh-HK": "本案涉及約190萬元“黑錢”。案情顯示答辯人不但借出該帳戶用作“洗黑錢”用，更親自及積極地處理有關的“黑錢”。本庭亦不能忽視“黑錢”源自加拿大，在匯至香港後由答辯人帶返國內這“國際因素”。" } }, { "doc_id": 1, "seg_id": 67, "translation": { "en": "In our judgment, even looking at this case from the angle most favourable to the respondent, the sentence which fits her should not have been less than imprisonment for two years and six months. The original sentence of 10 months’ imprisonment was manifestly lighter than any of the sentences in the range of sentences which a reasonable judge would reasonably consider to be appropriate.", "zh-HK": "本庭認為即使以對答辯人最有利的角度來考慮案件，適用於答辯人的判刑都不應少於2年6個月監禁。原判的10個月判刑明顯是低於一名合理法官會合理地認為是恰當的判刑範圍內。" } }, { "doc_id": 1, "seg_id": 68, "translation": { "en": "Taking into account the fact that this application was an application for review of sentence and that this matter had hung over the respondent’s head for a long time, we came to the conclusion that the appropriate sentence was two years’ imprisonment.", "zh-HK": "考慮到本申請是刑期覆核申請，而事件亦長時間困擾答辯人，本庭認為適當的判刑為2年監禁。" } }, { "doc_id": 1, "seg_id": 69, "translation": { "en": "We granted the applicant’s application for review of sentence and increased the respondent’s sentence from 10 months’ imprisonment to two years imprisonment.", "zh-HK": "本庭批准申請人的覆核刑期申請，並將答辯人原被判的10個月監禁上調至2年監禁。" } }, { "doc_id": 2, "seg_id": 1, "translation": { "en": "Hon Cheung, J.A. (giving the judgment of the Court):", "zh-HK": "高等法院上訴法庭法官張澤祐宣讀上訴庭判案書:" } }, { "doc_id": 2, "seg_id": 2, "translation": { "en": "The Appeal", "zh-HK": "上訴" } }, { "doc_id": 2, "seg_id": 3, "translation": { "en": "1.The three defendants have earlier been granted leave to appeal against sentence. They now formally lodge their appeal against sentence. The three defendants were charged with the offence of attempting to obtain property by deception, contrary to section 17(1) of the Theft Ordinance (Cap 210) and section 159G of the Crimes Ordinance (Cap 200). They denied the charge, but were convicted after trial and sentenced to 3 years’ imprisonment.", "zh-HK": "1.三名被告人早前已經獲得針對刑期提出上訴的許可，他們現對刑期正式提出上訴。三名被告人被控企圖以欺騙手段取得財物，違反香港法例第210章《盜竊罪條例》第17(1)條及第200章《刑事罪行條例》第159G條。三名被告人否認控罪，但經審訊後被定罪，被判3‍年監禁。" } }, { "doc_id": 2, "seg_id": 4, "translation": { "en": "The Facts", "zh-HK": "案情" } }, { "doc_id": 2, "seg_id": 5, "translation": { "en": "2.The facts showed that when the witness was on her way home, the 1st defendant approached and asked her the way. Meanwhile the 2nd defendant appeared and said that the pill held in the 1st defendant’s hand was a very valuable medicine that could cure cancer etc. Whilst the 2nd defendant was using $500 in cash to buy the pill from the 1st defendant, the 3rd defendant appeared. He claimed that he was a doctor from Singapore and would offer to buy those pills at a high price of $1,000 each. The 2nd defendant then tried to persuade the witness to pool money with her to buy those pills in bulk and resell them to the 3rd defendant for profit. After the 2nd and 1st defendants had had a discussion, the 2nd defendant indicated that the 1st defendant had 1,000 pills available and she also asked the witness to raise $250,000 for the purchase. The witness at that time realized that the people she had just met were fraudsters of the so-called “Tonic Medicine Gang”, so she pretended that she agreed to it and suggested that the three of them should follow her home to get the money. In the meantime the witness used her mobile phone to ask her family to report the matter to the police for her. Later, the police arrested the three defendants.", "zh-HK": "2.案情顯示証人在回家途中，第一被告人向她問路，其間第二被告人出現並指出第一被告人手上拿的藥丸十分名貴，可醫癌症等等。當時第二被告人以現金500元向第一被告人購買該藥丸，此時，第三被告人出現，表示他是來自星加坡的醫生，願意以高價1,000元一粒購買該等藥丸。第二被告人就向証人游說建議和她合資，大批購買該等藥丸，以轉售予第三被告人圖利。第二被告人及第一被告人商議後，表示後者有1,000粒藥丸，並叫証人集資25萬元。証人當時知道自己已經遇上了所謂俗稱“補藥黨”的騙徒，所以假意應承，並建議他們三人跟隨她回到她的家取錢，其間証人用自己的流動電話通知家人代為報警，其後警察拘捕三名被告人。" } }, { "doc_id": 2, "seg_id": 6, "translation": { "en": "Reasons for Sentence", "zh-HK": "判刑理由" } }, { "doc_id": 2, "seg_id": 7, "translation": { "en": "3.Deputy District Judge E. Lin in his Reasons for Sentence pointed out that the facts and the method of deception in this case followed a certain mode. Usually such deception involved two or more fraudsters. The first fraudster would approach and deliberately show certain articles to the victim. The articles could be herbal medicine, prepared medicine, food, valuable metal or electronic components etc. The second fraudster would then appear and tell the victim that the first fraudster’s articles were magical stuff of value, rarity or efficacy which could be resold at once for a profit. In case the face value of these articles, such as herbal medicine, prepared medicine or electronic components etc, was not apparent, then there would be a third fraudster who would appear and offer to buy these articles at a high price. Then the second fraudster would suggest to the victim to pool their money together to buy the articles and resell them to the third fraudster to gain great profit. If the victim agreed to it then the victim would hand the money in cash to the second fraudster in exchange for something which was almost valueless. The fraudsters would then all disappear. This mode of deception as designed by the fraudsters is mainly aimed at exploiting the chance-taking attitude of the victim who hopes to reap a great profit with a little sum. The result, however, sees the victim suffering great loss which far outweighs the gain. The deception is a pre-planned action and the victim is usually an unsuspecting elderly woman of low education level. The trial judge was of the view that deterrence should be the basis of sentence for this kind of cases. Under the law, the maximum penalty is imprisonment for 10 years. The judge took the view that a 2 years imprisonment would be an appropriate sentence; however, he granted the prosecution’s application for enhancement of sentence and changed the sentence to one of 3 years’ imprisonment.", "zh-HK": "3.練錦鴻暫委法官在判刑理由書內指出，本案的案情及行騙手法其實有一定的模式，通常此等行騙是由兩名以上的騙徒合謀，先是第一名騙徒向受害人搭訕，並故意展示一些物件，此等物件可以是草藥、成藥、食物、貴重金屬或電子零件等，接着第二名騙徒就出現，向受害人表示第一名騙徒所有的是名貴、罕有或有效用的神奇東西，可以立時轉賣圖利。要是此等物件的表面價值並不明顯，例如是藥材、成藥或電子零件等，則會有第三名騙徒出現，表示願意以高價購買此等物件，於是第二名騙徒就向受害人建議合資購買該等物件，以便轉賣給第三騙徒，以謀取暴利，受害人如果同意的話，就會將現金交給第二名騙徒，換得一些差不多是毫無價值的東西，此後所有騙徒就會逃之夭夭。此等行騙方法，最主要的是騙徒設計引發受害人僥倖之心，以為可以以小本錢來謀得暴利，結果得不償失，此等行騙方法是事先有計劃的行動，受害人通常是一些警覺性不高，教育程度低及高齡的婦女。原審法官認為此類案件的量刑原則，應該由阻嚇方面着眼，根據法例最高刑罰為10‍年監禁，法官認為適當之刑期為2年監禁，但他接受控方提出加刑的申請將刑期改為3年。" } }, { "doc_id": 2, "seg_id": 8, "translation": { "en": "Organized and Serious Crimes Ordinance", "zh-HK": "有組織及嚴重罪行條例" } }, { "doc_id": 2, "seg_id": 9, "translation": { "en": "4(a).In this case, the court’s jurisdiction of enhancing the sentence comes from the Organized and Serious Crimes Ordinance (Cap 455) (“the Ordinance”).", "zh-HK": "4(a).在本案法庭加重刑罰的權力是來自香港法例第455章《有組織及嚴重罪行條例》(《條例》)。" } }, { "doc_id": 2, "seg_id": 10, "translation": { "en": "4(b).Section 27(1) of the Ordinance provides that the section applies where in proceedings in the District Court, a person has been convicted of a specified offence. Specified offences are any of the offences specified in Schedule 1 and their corresponding attempting offences. The offences listed in Schedule 1 include the offence of obtaining property by deception, contrary to section 17 of the Theft Ordinance (Cap 210). The defendants were convicted of this offence.", "zh-HK": "4(b).該條例第27(1)條指凡在區域法院的法律程序中，有人就指明的罪行被定罪，該條例即予適用。指明的罪行是附表1所指明的任何罪行及企圖犯任何該等罪行。附表1列出的罪行包括《盜竊罪條例》(第210章)第17條以欺騙手段取得財產，即各被告人在本案被定罪的罪行。" } }, { "doc_id": 2, "seg_id": 11, "translation": { "en": "4(c).Section 27(11)(b) states that subject to subsections (12) and (13), where a court is satisfied beyond reasonable doubt as to any information furnished under subsection (2) or (8), the court shall have regard to such matter when it passes a sentence on the person for the relevant specified offence and may, if it thinks fit, pass a sentence on the person for that offence that is more severe than the sentence it would, in the absence of such matter, have passed.", "zh-HK": "4(c).第27(11)(b)條說除第(12)及(13)款另有規定外，凡法庭在無合理疑點的情況下信納根據第(2)或(8)款提供的資料，則法庭就有關的指明的罪行對該人宣判刑罰時，須顧及該等事項，並可在其認為適合的情況下，就該罪行對該人宣判較會在沒有該事項時所宣判的為重的刑罰。" } }, { "doc_id": 2, "seg_id": 12, "translation": { "en": "4(d).Subsection (12) is not applicable to this case as it concerns the application for a confiscation order. Subsection (13) provides that a sentence passed pursuant to subsection (11) shall not exceed the maximum penalty permitted by law for that offence.", "zh-HK": "4(d).第(12)款是關於沒收令的申請，這款並不適用於本案。第‍(13)‍款指依據第(11)款所判處的刑罰不得超逾法律所容許的對該罪行的最高罰則。" } }, { "doc_id": 2, "seg_id": 13, "translation": { "en": "4(e).Subsection (8) is concerned with an organized crime which is connected with the activities of a triad society. Subsection (8) is applicable where the court, upon the prosecution’s application made pursuant to subsection (4), determines whether the specified offence dealt with by the court is an organized crime or not.", "zh-HK": "4(e).第(8)款是涉及三合會活動有關連的有組織罪行。第(8)款是適用於法庭應控方根據第(4)款要求裁定法庭處理的指明罪行是否為有組織罪行。" } }, { "doc_id": 2, "seg_id": 14, "translation": { "en": "4(f). In considering whether to pass a more severe sentence or not, the court is not restricted to organized crimes. It may also decide upon the information furnished by the prosecution under subsection (2). Under subsection (2) the prosecution may furnish information to the court regarding any or all of the following :", "zh-HK": "4(f).法庭在考慮是否採用更重的刑罰時，並不是局限於有組織罪行，而是可以根據控方就第(2)款所提供的資料作出決定。根據第‍(2)‍款控方可向法庭提供下述全部或任何事項的資料：" } }, { "doc_id": 2, "seg_id": 15, "translation": { "en": "the nature and extent of any harm caused, directly or indirectly, to any person by the act in respect of which the person has been so convicted.", "zh-HK": "該人被如此定罪所據的作為，直接或間接導致他人受損害的性質及程度。" } }, { "doc_id": 2, "seg_id": 16, "translation": { "en": "the nature and extent of any benefit, whether financial or otherwise, that accrued or was intended to accrue, directly or indirectly, to that or any other person from that act.", "zh-HK": "因該作為而對該人或任何其他人直接或間接帶來的利益，或希望藉此帶來的利益(不論是否財務上的利益)的性質及程度。" } }, { "doc_id": 2, "seg_id": 17, "translation": { "en": "the prevalence of that specified offence.", "zh-HK": "該指明的罪行的普遍程度。" } }, { "doc_id": 2, "seg_id": 18, "translation": { "en": "the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of that specified offence.", "zh-HK": "由最近發生的指明的罪行，而直接或間接導致社區受損害的性質及程度。" } }, { "doc_id": 2, "seg_id": 19, "translation": { "en": "the nature and extent of the total benefit, whether financial or otherwise, accruing directly or indirectly to any person from recent occurrences of that specified offence.", "zh-HK": "因最近發生的該指明的罪行，而對任何人直接或間接帶來的總利益，不論是財務上的利益的性質及程度。" } }, { "doc_id": 2, "seg_id": 20, "translation": { "en": "4(g).Apart from invoking subsection (8) referred to section 27(11)(b), the court may also under section 27(11)(a) pass an enhanced sentence on a specified offence which is an organized crime.", "zh-HK": "4(g).除了第27(11)(b) 條提到的第(8)款外，法庭亦可以根據第‍27 ‍(11)(a)條對屬於有組織罪行的指明罪行，加重刑罰。" } }, { "doc_id": 2, "seg_id": 21, "translation": { "en": "4(h).The defendants stated in their perfected grounds of appeal that this case does not involve organized crimes, and thus the court could not pass an enhanced sentence. Based on the above reasons, this ground of appeal cannot stand. Ms Chan, counsel for the defendants, also indicated today that she would not rely on this ground of appeal.", "zh-HK": "4(h).基於上述原因，被告人提出的完備上訴理由，即本案不是有組織罪行，所以不可以加重刑罰是不可以成立的。代表被告人的陳‍大律師今天亦指出她是不會依賴這項上訴理由。" } }, { "doc_id": 2, "seg_id": 22, "translation": { "en": "The Prosecution’s Evidence", "zh-HK": "控方的証供" } }, { "doc_id": 2, "seg_id": 23, "translation": { "en": "5(a).The prosecution called three witnesses who were the officers-in-charge of the Regional Intelligence Units of the New Territories North Region, New Territories South Region and Kowloon West Region respectively.", "zh-HK": "5(a).控方傳召了三名証人，分別為新界北區、南區及西九龍情報組的負責人。" } }, { "doc_id": 2, "seg_id": 24, "translation": { "en": "5(b).According to the material provided by the prosecution witnesses, in the New Territories North Region (including Yuen Long, Tai Po, Tuen Mun and Border Police Divisions), there were a total of 20 street deception cases for the year of 1999, involving property of $900,000. Between January and July 2000, there were 24 cases of tonic medicine deception involving property of $2.4 million. In 1999, there were 78 cases of electronic component deception in which the same method was employed, involving property of $3.1 million. There were 69 such cases between January and July 2000, involving property of $2.8 million.", "zh-HK": "5(b).根據警方証人提供的資料，在1999年新界北(即包括元朗、大埔、屯門及邊境警區)，全年共有20宗街頭行騙案，涉及的財物為90萬元，在2000年1月至7月所涉及的有關補藥藥品的騙案為24宗，涉及的財物為240萬元，至於用同樣手法涉及電子零件的騙案在1999年則有78宗，涉及的財物為310萬元。2000年1‍月至7月則有69宗，涉及的財物為280萬元。" } }, { "doc_id": 2, "seg_id": 25, "translation": { "en": "5(c).In the New Territories South Region (including Tsuen Wan, Kwai Chung, Sha Tin and Lantau Police Divisions), in 1999, there were a total of 99 complaints of street deception, involving property totalling $5 million. 31 of these cases concerned tonic medicine involving property of $1.23 million. There were 88 street deception cases for the period between January and September 2000 involving property of $5.63 million. 11 of these cases concerned tonic medicine involving property totalling $720,000.", "zh-HK": "5(c).至於新界南區(即包括荃灣、葵涌、沙田和大嶼山等警區)，於1999年共有99宗街頭行騙之投訴，其涉及之總財物為500萬元，其中有31宗是與補藥有關，涉及之財物為123萬元，至於2000‍年1‍月至9月之數據，則為88宗街頭行騙案，涉及563萬元，其中11‍宗是關乎補藥的，總數是72萬元。" } }, { "doc_id": 2, "seg_id": 26, "translation": { "en": "5(d).In the Kowloon West Region (including Yau Ma Tei, Tsim Sha Tsui, Mong Kok, Cheung Sha Wan, Sham Shui Po, Shek Kip Mei, Kowloon City and Hung Hom Police Divisions), the number of cases for 1998 is 88, involving property totalling $4.1 million, only 16 cases of which were solved. The figure for 1999 is 92 cases, 17 of which were solved involving property of $6.6 million. There were 144 complaints of street deceptions between January and September 2000, 20 of which concerned tonic medicine, and only 14 cases were solved; the total property involved was $6.2 million.", "zh-HK": "5(d).至於西九龍區(包括油麻地、尖沙咀、旺角、長沙灣、深水埗、石硤尾、九龍城及紅磡警區)，1998年的數目是88宗，總涉及的財物為410萬元，其中只有16宗被偵破。1999年之數據為92宗，其中有17宗被偵破，涉及的財物為660萬元。2000年1月至9月有144宗街頭行騙之投訴，其中20宗是有關補藥的，只有14宗被偵破，總涉及的財物為620萬元。" } }, { "doc_id": 2, "seg_id": 27, "translation": { "en": "Reasons for Enhancement of Sentence", "zh-HK": "加刑的理由" } }, { "doc_id": 2, "seg_id": 28, "translation": { "en": "The trial judge took the view that the evidence furnished by the", "zh-HK": "原審法官認為警方所提供之証供符合條例第27 (3) 條所列出的限制，即是這些証供是在刑事法律程序接納為証供的資料，法官認為3名警方証人提出的數據都是在他們工作期間查閱警方根據已確定的制度下匯集的數據，此等資料是3名証人的個人知識範圍之內，不存在傳聞証供的問題，警方提供的証供並非証實他所提供的數據之中，每一宗都是正確的，而是只需要提出從這個數據之中，可以歸納到一定的模式，這個模式就是此等案件極之普遍，及涉及的財物的大約數目。" } }, { "doc_id": 2, "seg_id": 29, "translation": { "en": "police was in line with the requirement set out in section 27(3), namely, this evidence was material that was admissible in evidence in criminal proceedings. The judge considered that the data furnished by the three police witnesses were data obtained by them in their perusal of data obtained by the police under an established system; such material was within the personal knowledge of the three witnesses, and there was no question of the material being in the nature of hearsay evidence. The evidence furnished by the police was not to prove that each and every item in the data furnished by them was correct, it only served the purpose of establishing that a definite pattern could be deduced from the data furnished, and that the pattern showed that such cases were very prevalent. Moreover, it showed the approximate amount of the property involved. The trial judge took the view that those crimes called for enhancement of sentence in order to deter such criminal tendency. He enhanced the starting point by 50% and imposed a sentence of 3 years’ imprisonment. All three defendants came from the mainland as visitors to Hong Kong, the judge considered that if they served their imprisonment terms in Hong Kong, they would find it much harder to adapt than the local people. However, the judge also considered that all three of them came to Hong Kong of their own accord. Their alleged personal family background such as their family members suffering from illness, children needing support and so on, were not mitigating factors at all. If they were indeed truly concerned about their family members, they would not have left their native places and spent money coming to Hong Kong in the first place. The defendants all claimed that they were burdened with financial hardship, but the judge doubted their words in view of the fact that they could still come to Hong Kong as a tourist despite their claim of financial hardship. Taking the above points into consideration, the judge was of the view that there were no grounds for reduction from the sentence of the 3 years’ imprisonment.", "zh-HK": "原審法官認為此等罪行應該加刑，以遏止此等歪風，將量刑起點加刑百分之五十，判刑3年監禁。三名被告人都是來自內地的，他們以訪客身份到港，法官考慮到如果他們在香港接受監禁，他們可能比本地人更難適應，但他亦考慮到被告三人都是自願來港，他們所提到的個人家庭背景，例如家人有病、有子女要供養等問題，皆非求情理由，要是他們真正關心家人的話，就不會離鄉別井斥資來港。被告人都稱有經濟上之困難，但法官懷疑他們這番說話，雖然他們稱經濟上有困難，但依然可以來港旅遊，在考慮上述各點之後，法官認為無理由可從3年刑期中作出扣減。" } }, { "doc_id": 2, "seg_id": 30, "translation": { "en": "The Evidence of Sentencing", "zh-HK": "量刑的証據" } }, { "doc_id": 2, "seg_id": 31, "translation": { "en": "This Court takes the view that the evidence furnished by the prosecution was evidence that might be admitted by the sentencing court. Section 27(3) of the Ordinance provides that criminal proceedings include proceedings in respect of sentencing. In Patrick Smith (1988) 87 Cr. App. R393, the English Court of Appeal decided that the material that might be received by the sentencing court was not confined to the evidence admissible by rules of evidence in the trial of the issue of guilt or innocence of the defendant. In Regina v. Gardiner (1982) 68 CCC(2d)477 the Supreme Court of Canada decided that the sentencing court might admit credible hearsay evidence. This Court agrees to the view taken in these two cases, because what is most important is that the material that the Court receives is reliable and credible, enabling it to impose an appropriate sentence.", "zh-HK": "本庭認為控方提供的証據是法庭在量刑時可以接納的証據，條例第27(3)條指刑事法律程序包括就判刑而進行的法律程序。在Patrick Smith (1988) 87 Cr. App. R393一案，英國上訴法庭指出法庭在量刑時可以接納的資料並不是限於那些根據証據法律在審訊被告是否有罪時，可以接納為証據的資料。加拿大的最高法院在Regina v. Gardiner (1982) 68 CCC(2d)477亦指出在處理量刑時，法庭是可以接受可信的傳聞的証供。本庭同意這兩件案的論點，因為最重要是法庭獲得的是一些可靠及可信的資料，令法庭作出適當的量刑。" } }, { "doc_id": 2, "seg_id": 32, "translation": { "en": "Appropriate Sentence", "zh-HK": "適當的刑期" } }, { "doc_id": 2, "seg_id": 33, "translation": { "en": "The evidence shows there is obviously an upward trend for this kind of deception. The court should impose a deterrent sentence to stop the growth of such cases. In HKSAR v. Lee Sai Wing [1998] 4 HKC 281, HKSAR v. Tam Wai Pio [1994] 4 HKC 291 and HKSAR v. Cheung Wai Man & Ors [1998] 4 HKC 284, the Court of Appeal took the view that it would be appropriate to enhance the sentence of specified offences that involved triad background or organized crimes by 50%. In Cheung Wai Man it was further decided that for organized crimes involving vehicle smuggling, trafficking in women for the purpose of prostitution in Hong Kong, and the use of force to recover money lent at usurious rate to gamblers, it would even be appropriate to impose an enhanced sentence of more than 50%. However, in Lee Sai Wing the Court of Appeal also pointed out that for crimes that were becoming prevalent, if the sentence was enhanced by 50% without prior warning, it might lead to a sense of unfairness. In respect of crimes that were becoming prevalent the extent of enhancement would be decided by their gravity, prevalence and effect upon the community. The charges in that case were procuring entries in bank records by deception, the Court of Appeal took the view that it would be appropriate to enhance the starting point by 25% to 30%.", "zh-HK": "這些証供顯示這一類的行騙案件明顯地有上升的趨勢，法庭是應該採取阻嚇的刑期來抑壓這類案件增長。在香港特別行政區訴李世榮[1998] 4 HKC 281、香港特別行政區訴譚偉標(譯音)[1994] 4 HKC 291及香港特別行政區訴張偉文及其他人[1998] 4 HKC 284，上訴法庭認為將涉及黑社會背景或有組織罪行的指明罪行加重50％的刑期是適當的。張偉文一案更指出就有組織罪行涉及偷運車輛，非法運婦女來港賣淫，及强行收回借給賭徒的高利貸的行為，加重刑罰甚至高於50%亦都是適當的。但在李‍世‍榮一案，上訴法庭同時指出，對一些逐漸普遍的罪行，未經事先警告而將刑罰加重到50%，可能會引起不公平的感覺。對於逐漸普遍的罪行應將刑罰加重多少，要看該種罪行的嚴重性、普遍性及對社會的影響而定。該案的控罪是以欺騙的手段，在銀行記錄內促致記項罪，上訴法庭在該案認為將刑期的起點調高25%至30%是適當的。" } }, { "doc_id": 2, "seg_id": 34, "translation": { "en": "10.According to this Court’s understanding, the judge’s reason for imposing an enhanced sentence in this case is because of the prevalence and gravity of similar cases, rather than because this is an organized crime case. Because of the rising trend of similar cases, this Court takes the view that it would be appropriate to enhance the sentence by 50% in order to deter the commission of such crimes. Nevertheless, prior to this case there was no precedent to indicate that the court would enhance the sentence by 50% for similar cases, (even though prior to the commencement of the trial, the prosecution had already served written notices upon the defendants to the effect that in case they were convicted, the prosecution would furnish to the court the above material under section 27(2)). In such circumstances, if the sentence were to be suddenly enhanced by 50%, the defendants would feel a sense of unfairness. As far as this case is concerned, this Court is of the view that the sentence of 2 years’ imprisonment should be enhanced by 25%, making the sentence one of 2 years and 6 months.", "zh-HK": "10．根據本庭的了解，原審法官在本案加重刑罰的理由是因為類似案件的普遍及嚴重程度而不是這件案件是屬於有組織罪行的案件。因為同類案件是有上升的趨勢，本庭認為阻嚇這類案件，加重刑罰50%是適當的，但在本案之前，並沒有任何先例指法庭會就同類案件加重刑期50% (雖然控方在本案開審之前已經用書面形式通知各被告人如果他們被判罪，控方是會根據第27(2)條向法庭提供以上的資料)，在這情形之下，將刑期驟增50%對被告人來說會有一種不公平的感覺。本庭認為就本案之言，應該將2‍年的刑期加25%，即刑期為2年6個月。" } }, { "doc_id": 2, "seg_id": 35, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 2, "seg_id": 36, "translation": { "en": "11.We would allow the appeal, set aside the original sentence and substitute it with an imprisonment term of 2 years and 6 months. At the same time, this Court would point out that in future, it would not interfere with decisions to enhance the original sentence by 50% in similar cases.", "zh-HK": "11.我們接納上訴，將原本的刑期擱置，代之為2年6個月的刑期。本庭同時要指出，以後涉及同類型的案件時，本庭是不會干預將原本刑期上調50%的決定的。" } }, { "doc_id": 2, "seg_id": 37, "translation": { "en": "Mr Y. M. Liu, Senior Government Counsel of Department of Justice, for HKSAR", "zh-HK": "控方：由律政司廖遠明高級政府律師代表香港特別行政區政府" } }, { "doc_id": 2, "seg_id": 38, "translation": { "en": "Ms Terry S. C. Chan (assigned by Bar Free Legal Service Scheme), for the defendants", "zh-HK": "辯方：由香港大律師公會法律義助服務計劃委派陳淑芝大律師代表" } }, { "doc_id": 3, "seg_id": 1, "translation": { "en": "Hon Barnes J (giving the reasons for judgment of the Court):", "zh-HK": "原訟法庭法官張慧玲頒發上訴法庭判案理由書 ：" } }, { "doc_id": 3, "seg_id": 2, "translation": { "en": "The applicant was charged with one count of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 Laws of Hong Kong. The applicant pleaded not guilty. He was convicted after trial before Deputy District Judge Sham and was sentenced to 3 years’ imprisonment. He initially applied for leave to appeal both conviction and sentence. Subsequently he abandoned the appeal against conviction and sought leave to appeal the sentence only.", "zh-HK": "申請人被控一項「有意圖而傷人」罪，違反香港法例第212 章《侵害人身罪條例》第17(a) 條。申請人否認控罪，經審訊後被區域法院暫委法官沈‍小‍民裁定罪名成立，被判監禁3 年。申請人本就定罪及刑期申請上訴許可，其後申請人放棄針對定罪的上訴，祇就判刑提出申請。" } }, { "doc_id": 3, "seg_id": 3, "translation": { "en": "After the hearing, we granted the applicant leave to appeal and, treating the application as the appeal proper, we allowed the appeal, set aside the 3 years’ imprisonment, and substituted therefor a term of 2 years and 3 months. Our reasons are set out below.", "zh-HK": "本庭在聆訊後批准上訴申請許可，並視之為正式上訴。本庭裁定上訴得直，3 年監禁刑期撤銷，改判監禁2 年3 個月。以下是本庭的理由。" } }, { "doc_id": 3, "seg_id": 4, "translation": { "en": "Facts", "zh-HK": "案情事實" } }, { "doc_id": 3, "seg_id": 5, "translation": { "en": "The facts as found by the Deputy Judge were as follows (page 19 of the appeal bundle):", "zh-HK": "沈‍法官裁定的案情事實如下 (上訴文件第19 頁)：" } }, { "doc_id": 3, "seg_id": 6, "translation": { "en": "“2.The facts show that both the defendant and the victim Cheung Kwun-wo (78 years old) were residents of Chung On Estate and they knew each other. Prior to the wounding incident, they had had a quarrel over a chess game. On the day of the offence, i.e. 23 June 2011, Mr. Cheung was in the park, where the offence was committed, watching people playing chess. The defendant went up to Mr. Cheung and asked him to pay compensation for what happened the day before yesterday. Because of that, an altercation broke out between them again. The defendant took out a knife. When the chess players saw that, they told Mr. Cheung to run away. Mr. Cheung did run, but after he ran for 60 to 70 metres, he was caught up by the defendant. The defendant stabbed him, injuring the area under the left armpit. The defendant continued to attack him with the knife. As he tried to fend off the attack with his left hand, his left thumb and left index finger were injured. Then the defendant ran away and the police were called.", "zh-HK": "「2.案情透露，被告人與傷者張均和 (78歲)，都是頌安邨的街坊，彼此互相認識。在傷人事件之前，雙方曾經為下棋問題有所爭執，直至2011年6月23日案發當日，張伯在肇事現場的公園觀看他人下棋，被告人走到他身旁，為著前日所發生的事情，要求張伯賠償，雙方因此而又口角起來。被告人拿出一把刀，當時下棋的街坊看見這情況，著張伯走離開，張伯逃走，不過走了六七十米之後，給被告人追到，被告人用刀刺傷張伯左腋下位置，另外繼續用刀襲擊他，張伯以左手擋格的時候，左手拇指和食指受了傷，之後被告人走離開現場，其後事件報了警。" } }, { "doc_id": 3, "seg_id": 7, "translation": { "en": "Mr. Cheung was sent to hospital. The medical report said that there was a stab wound, 1.5 cm long, under his left armpit near the chest, and that there were also injuries on his left upper limb.” (explanation given by the court)", "zh-HK": "3.張伯被送往醫院醫治，醫生報告指他左腋下胸口位置被刺傷，傷口1.5公分，而左上肢亦有受傷。」(本庭加以注釋)" } }, { "doc_id": 3, "seg_id": 8, "translation": { "en": "Applicant’s background and mitigation submissions", "zh-HK": "申請人背景及求情陳詞" } }, { "doc_id": 3, "seg_id": 9, "translation": { "en": "The Deputy Judge set out the applicant’s background and mitigation submissions as follows (page 20 of the appeal bundle):", "zh-HK": "沈‍法官列出申請人背景及求情陳詞如下 (上訴文件第20 頁)：" } }, { "doc_id": 3, "seg_id": 10, "translation": { "en": "“4.The defendant is 72 years old. He has one conviction record (1988, one conviction for gambling). As that conviction was quite some time ago, I will treat him as a person of clear record when I consider the sentence. The defendant is a retiree. Before his retirement, he worked as a mini-bus driver. He is married. He has two sons and one daughter. As far as his health is concerned, he received a coronary bypass operation in 2009. In addition, he is suffering from a variety of ailments and illnesses, such as shortness of breath.", "zh-HK": "「4.被告人現年72歲，過往有一項刑事紀錄 (1988年一項賭博案底)，由於案底距今已有一段時間，本席在量刑時，會視被告人為無案底的人。被告人已退休，退休前曾當小巴司機，已婚，育有兩名兒子、一名女兒。身體健康方面，在09年曾做過心臟搭橋手術，另外還有多種身體毛病，例如氣促等。" } }, { "doc_id": 3, "seg_id": 11, "translation": { "en": "5.By way of mitigation, the defence has submitted a number of letters for the court’s consideration, including letters from Legislative Councillor Mr. Chan Hak-keung [sic]; Madam Wong, Chairwoman of the Mutual Aid Committee of Chung On Estate; and the defendant’s children. In sum, they have made very positive comments on the defendant, describing him as easy-going, always ready to help others and eager to do voluntary social work, and stating their belief that the defendant’s commission of the present offence was out of his character.”", "zh-HK": "5.求情方面，辯方呈上多封求情信給法庭考慮，包括立法會議員陳克強先生，頌安邨互助委員會主席黃女士，被告人的子女。總括而言，各人對被告人的觀感非常之好，指被告人一向性格隨和、樂於助人，又熱心社會義務的工作，對於今次被告人犯下這罪行，各人都相信是與他一貫性格不符。」" } }, { "doc_id": 3, "seg_id": 12, "translation": { "en": "Reasons for sentence", "zh-HK": "判刑理由" } }, { "doc_id": 3, "seg_id": 13, "translation": { "en": "The Deputy Judge cited the authorities Hau Ping Chuen2 and Tse Hok Lam3[transliteration of 謝學林] and pointed out that this kind of offence called for severe punishment, with the usual sentence being imprisonment for 3 to 12 years. The Deputy Judge went on to say (page 21 of the appeal bundle):", "zh-HK": "沈‍法官在引述案例 (侯炳全 及謝學林 ) 時指出，此類罪行要嚴懲及一般判刑範圍應是3 年至12 年後，說 (上訴文件第21 頁)：" } }, { "doc_id": 3, "seg_id": 14, "translation": { "en": "“8.I consider that there are aggravating features in the present case. Before the wounding incident occurred, the defendant had a quarrel with Mr. Cheung over a chess game, following which he nursed a grievance against Mr. Cheung. It is obvious that the attack was premeditated, because on the day of the offence the defendant brought along knives for the purpose of attacking another person.", "zh-HK": "「8.本席認為本案有其嚴重的地方。被告人因為在傷人事件之前，與張伯就下棋一事有所爭執，而他深深不忿，案發當日很明顯他是有計劃地進行是次襲擊，帶備刀子襲擊他人。" } }, { "doc_id": 3, "seg_id": 15, "translation": { "en": "9.On the basis of the admitted evidence, I believe that the defendant carried two knives with him at the material time, and that the knife produced at trial was not the one used in the wounding. However, taking into account the overall circumstances of the defendant’s attack on the victim, that knife would, I believe, at least have been as sharp as the one produced in court. In other words, I believe it was a sharp and lethal weapon.", "zh-HK": "9.從法庭接納的證供來看，本席相信被告人當時帶備兩把刀，而呈堂的那一把刀並非兇刀。不過，從被告人以刀襲擊的整體情況來考慮，本席相信該把刀鋒利程度是不下於本案所呈上的刀子，換句話說，本席相信它是一把鋒利、可致命的武器。" } }, { "doc_id": 3, "seg_id": 16, "translation": { "en": "10.I also consider there were serious features in the circumstances of the offence. The defendant is an elderly person but so is the victim, who is 78 years old. The facts as found by the court were that when the defendant took out the knife, the victim actually chose to flee, but the defendant refused to let it go at that. He chased the victim with the knife in his hand. When he caught up with the victim, he attacked him at once and inflicted on him the injuries he suffered.", "zh-HK": "10.在情節方面而言，本席認為也有嚴重之處，雖然被告人本身都是一位長者，但傷者同樣都是一位長者，年屆78歲。以法庭接納的案情來看，被告人拿刀子出來時，其實傷者已經選擇逃離現場，但被告人並沒有罷休，拿著刀子追著他，追到的時候就隨即向他作出襲擊，導致他受了本案的傷勢。" } }, { "doc_id": 3, "seg_id": 17, "translation": { "en": "11.An elderly person who is being chased after for 60 to 70 metres may fall or tumble at any moment during the chase. For an elderly person, a fall or tumble can entail serious consequences. Worse still, when the defendant caught up with the victim, he attacked him with a knife, pulling no punches. That the victim neither suffered very serious injuries nor was troubled by any sequelae is a matter of sheer luck, not because the defendant exercised any restraint on his attack.", "zh-HK": "11.追一名老人家六七十米，他隨時會蟀倒，對於一名長者而言，蟀倒可導致很嚴重的後果。不單止這樣，被告人追到傷者的時候，他還持刀襲擊對方。被告人出手絕對不輕，傷者沒有受到很嚴重傷勢或後遺症，純粹他的運氣而已，並非被告人手輕。" } }, { "doc_id": 3, "seg_id": 18, "translation": { "en": "14.On the day in question the defendant attacked an elderly person with a lethal weapon he brought along. What he did was deliberate and premeditated. Such violent conduct may lead to serious consequences and is never tolerated by the courts.", "zh-HK": "14.被告人當日是有意圖、有計劃地拿著可致命的武器，向一名上了年紀的人作出襲擊，這種暴力行為，法庭絕對不能夠容忍，因為其後果可以很嚴重。" } }, { "doc_id": 3, "seg_id": 19, "translation": { "en": "15.After consideration, I adopt 3½ years’ imprisonment as the starting point. In light of the fact that the defendant is in his 70s, that he has only one previous conviction for a relatively minor gambling offence, and taking into account everything said in his favour by those who wrote the letters of mitigation for him, I reduce the term by 6 months. To conclude, the defendant is sentenced to imprisonment for 3 years.”", "zh-HK": "15.考慮過後，本席以三年半作為量刑起點，考慮到被告人七十多歲，過往只犯下一項較輕微的賭錢罪行，加上求情時替他寫求情信的人所講及關於對他有利方面的說話，減刑半年。最終的判刑是3年監禁。」" } }, { "doc_id": 3, "seg_id": 20, "translation": { "en": "Ground of appeal", "zh-HK": "上訴理據" } }, { "doc_id": 3, "seg_id": 21, "translation": { "en": "The ground of appeal put forward by Mr. Hu, Counsel for the applicant, was essentially that the Deputy Judge had not adequately considered the victim’s injuries and the mitigating circumstances in favour of the applicant, as a result of which he imposed the sentence of 3 years’ imprisonment which was (the applicant submitted) manifestly excessive.", "zh-HK": "申請人代表胡‍德‍理大律師提出的上訴理由，基本上是指沈‍法官無充分考慮傷者的受傷情況及申請人的求情理由，因此3 年監禁是明顯過重。" } }, { "doc_id": 3, "seg_id": 22, "translation": { "en": "(I)The injuries", "zh-HK": "(一)受傷情況" } }, { "doc_id": 3, "seg_id": 23, "translation": { "en": "Mr. Hu cited the English case of R v Nottingham Crown Court, ex parte DPP4 and submitted that, in considering the gravity of the case in question and the appropriate sentence, the court could take into account the injuries suffered by the victim.", "zh-HK": "胡‍大律師引用英國案例R v Nottingham Crown Court, ex parte DPP ，指法庭可因應受害人的受傷情況去考慮案件的嚴重性及作出恰當的判刑。" } }, { "doc_id": 3, "seg_id": 24, "translation": { "en": "Mr. Hu referred to a number of decided cases involving the offence of wounding with intent5 to support his contention that, in the circumstances of the present case, 3 years’ imprisonment was manifestly excessive.", "zh-HK": "胡‍大律師引用多宗有關「有意圖而傷人」的案件 ，指以本案案情而言，3 年監禁刑期是明顯過重。" } }, { "doc_id": 3, "seg_id": 25, "translation": { "en": "Mr. Hu placed particular reliance on the case of Yeung Kam Kwai6, because the appellant and the victim in that case were aged 69 and 76 respectively at the time of the offence, and their ages were close to those of the applicant and the victim in the present case. Mr. Hu submitted that the injuries suffered by the victim in that case were more serious than those suffered by the victim in the present case. In the end, the Court of Appeal imposed a sentence which enabled the appellant, who had served 9½ months of the original sentence, to be immediately released. Mr. Hu submitted therefore that the Deputy Judge erred in adopting 3½ years as the starting point.", "zh-HK": "胡‍大律師特別依賴楊金葵 一案，因該名上訴人在案發時年69 歲，而傷者則是76 歲，與本案的申請人及傷者有相似之處。胡‍大律師指在該案的受害人傷勢較本案的傷者為重，最終上訴庭在楊服刑9½ 個月後判其即時獲釋，因此，沈‍法官在本案採納3½ 年為量刑起點是錯誤的。" } }, { "doc_id": 3, "seg_id": 26, "translation": { "en": "(II)Mitigating factors", "zh-HK": "(二)求情因素" } }, { "doc_id": 3, "seg_id": 27, "translation": { "en": "Mr. Hu stressed that at the time of the offence the applicant was an elderly person aged 72 and had no criminal record except one conviction for illegal gambling, and that the victim had done something which provoked the applicant. For these reasons, Mr. Hu submitted that although the Deputy Judge correctly reduced the term of imprisonment by 6 months, the starting point of 3½ years was still too high.", "zh-HK": "胡‍大律師強調申請人案發時已是72 歲高齡，除了一次非法賭博外，並無其他刑事紀錄。傷者曾對申請人作出激怒行為，因此，雖然沈‍法官適當地扣除6 個月刑期，但3½ 年量刑起點仍是過高。" } }, { "doc_id": 3, "seg_id": 28, "translation": { "en": "Mr. Hu complained that the Deputy Judge failed to have sufficient regard to the applicant’s age and to the fact that he had no record of violent behaviour, that the victim had acted in a way which provoked him, and that the attack was an isolated incident and the result of a momentary impulse. For these reasons, Mr. Hu submitted that the sentence of 3 years’ imprisonment was manifestly excessive.", "zh-HK": "胡‍大律師指沈‍法官並無充分考慮申請人的年紀及在以往並無暴力紀錄，傷者亦曾對申請人作出激怒行為，襲擊屬個別事件及一時衝動的行徑，沈‍法官判以3 年監禁是明顯過重。" } }, { "doc_id": 3, "seg_id": 29, "translation": { "en": "Respondent’s reply", "zh-HK": "答辯人回應" } }, { "doc_id": 3, "seg_id": 30, "translation": { "en": "The respondent’s position, as explained by Mr. Kuan, Senior Public Prosecutor for the respondent, is that the applicant wounded the victim with a knife at the slightest provocation, and that such conduct warranted a deterrent sentence: see Hung Kar Chun7.", "zh-HK": "答辯人代表高級檢控官關‍百‍安的基本立場是申請人受到輕微挑釁便使用刀刃傷及傷者，法院必須判以阻嚇式的刑罰：案例熊家駿 。" } }, { "doc_id": 3, "seg_id": 31, "translation": { "en": "Mr. Kuan conceded that all the following were mitigating factors: at the time of the offence the applicant was 72 years old; he had undergone a heart operation; the attack did not result in serious injuries to the victim’s heart; the laceration did not penetrate into the thoracic cavity; and there was no pneumothorax or pleural effusion. However, he submitted that by comparison there were even more aggravating factors:", "zh-HK": "關‍大律師指出申請人事發時年72 歲，曾造過心臟手術，而他對傷者的襲擊，並無對後者心臟造成嚴重創傷，傷口沒有深至胸腔，亦沒有氣胸或肺積水，這些都是求情因素。但相比求情因素，加刑因素則更多：" } }, { "doc_id": 3, "seg_id": 32, "translation": { "en": "The incident was induced by a quarrel over a chess game.", "zh-HK": "事件誘因是下棋引起的爭執。" } }, { "doc_id": 3, "seg_id": 33, "translation": { "en": "When the applicant went to the scene with two knives on him, three days had already elapsed since the quarrel8. The knife seized by the police was lethal, as was the other knife with which the applicant attacked the victim.", "zh-HK": "爭執後3 天 ，申請人仍帶備兩把刀到場。警方撿獲的一把刀已能致命，申請人用以襲擊傷者的另一把刀亦足以致命。" } }, { "doc_id": 3, "seg_id": 34, "translation": { "en": "The applicant concealed the knives in a newspaper. This showed that he was coolheaded and his acts were premeditated.", "zh-HK": "申請人將刀藏於報紙內，是冷靜及有預謀的事。" } }, { "doc_id": 3, "seg_id": 35, "translation": { "en": "When the applicant took out a knife, the 78-year-old victim chose to run away, but the applicant did not let him go and chased him for 60 to 70 metres.", "zh-HK": "申請人亮刀時，78 歲的傷者已選擇逃跑，但申請人仍追60至70 米仍不罷休。" } }, { "doc_id": 3, "seg_id": 36, "translation": { "en": "The applicant did not stop the attack even after he stabbed the victim under his armpit. The victim tried to snatch the knife but failed, and his left hand was also injured.", "zh-HK": "申請人剌了傷者腋下後沒有停止襲擊，傷者試圖用手搶走刀子，但不成功，左手亦受了傷。" } }, { "doc_id": 3, "seg_id": 37, "translation": { "en": "The victim ran inside the office of a District Councillor and stayed there and hence managed to free himself from the applicant, but the applicant remained outside the office and shouted abuses.", "zh-HK": "傷者逃至區議員辦公室，成功躲避；申請人仍在辦公室外謾罵。" } }, { "doc_id": 3, "seg_id": 38, "translation": { "en": "The applicant pleaded not guilty and put the blame on the victim.", "zh-HK": "申請人不認罪，將責任推在傷者身上。" } }, { "doc_id": 3, "seg_id": 39, "translation": { "en": "Mr. Kuan submitted that the applicant mounted the attack, which was premeditated, when he was coolheaded. He submitted that the victim did not suffer more serious injuries not because the applicant showed mercy towards him, but because of sheer luck. He also contended that the victim’s injuries were one of the sentencing considerations but not the sole sentencing factor.", "zh-HK": "關‍大律師指申請人作出的襲擊是冷靜及有預謀的，傷者無受到更嚴重的傷害純屬僥倖，並非申請人留手。傷者傷勢祇是判刑因素之一，並非唯一因素。" } }, { "doc_id": 3, "seg_id": 40, "translation": { "en": "Mr. Kuan averred that in the circumstances of the present case, the starting point of 3½ years was by no means manifestly excessive. In view of the applicant’s complete lack of remorse and taking into account his age and physical condition, the Deputy Judge adopted what could be described as a lenient approach by reducing the term of imprisonment by 6 months. Mr. Kuan submitted that 3 years’ imprisonment was not manifestly excessive.", "zh-HK": "關‍大律師指以本案案情而言，3½ 年量刑起點絕非明顯過重。沈‍法官在申請人毫無悔意情況下，考慮了申請人的年齡及身體狀況而給予他半年扣減，可謂相當寬宏大量。關‍大律師指3 年刑期並非明顯過重。" } }, { "doc_id": 3, "seg_id": 41, "translation": { "en": "Our views", "zh-HK": "本庭所作的考慮" } }, { "doc_id": 3, "seg_id": 42, "translation": { "en": "There are no sentencing guidelines for the offence of wounding with intent. In Hung Kar Chun the Court of Appeal established a range of 3 to 12 years’ imprisonment for this offence (see Yuen Wai Kui9).", "zh-HK": "有意圖而傷人罪並無量刑指引。上訴庭在熊家駿 一案亦確立了涉及有關罪行的刑期是由3 年至12 年不等 (見袁偉渠 案件)。" } }, { "doc_id": 3, "seg_id": 43, "translation": { "en": "It is true that the range of 3 to 12 years is not a sentencing tariff, and the court is not obliged to impose 3 years’ imprisonment as the minimum term.", "zh-HK": "誠言，該3 年至12 年刑期並非量刑指引，法官無須必定以3 年為最低判刑。" } }, { "doc_id": 3, "seg_id": 44, "translation": { "en": "For the offence of wounding with intent, the circumstances of the offence and the background of offenders differ from case to case, and other decided cases are, in our view, of limited reference value.", "zh-HK": "有意圖而傷人罪涉及的案情事實及犯案人的背景不盡相同，其他案件對本庭而言，其參考價值有限。" } }, { "doc_id": 3, "seg_id": 45, "translation": { "en": "We agree with the respondent’s submission that there were aggravating features in the present case. The applicant had a quarrel with the victim over a chess game. The attack on the victim was not made when the applicant was in a rage in the heat of the quarrel; instead, one to three days later (the quarrel could have taken place on 20 June, 21 June or 22 June) the applicant, hiding two sharp knives on his person, went to the victim to get even with him. The", "zh-HK": "本庭認同答辯人陳詞指本案有其嚴重之處。申請人與傷者因下棋而發生爭執，申請人並非在爭執時因盛怒而襲擊傷者，而是在事隔1至3 天後 (即不論先前爭拗是發生在6 月20 日、6 月21 日或6 月22 日)，身藏兩把利刀前往找傷者算賬。在傷者走避時窮追傷者，用利刀剌傷者。申請人是向傷者的左胸部份進行襲擊，致令傷者左腋下流血。傷者並無遭受更嚴重的傷害、並無傷及心臟或胸腔，屬實可幸。但申請人的襲擊行為是可令致傷者受到嚴重傷害的。" } }, { "doc_id": 3, "seg_id": 46, "translation": { "en": "Decision", "zh-HK": "裁定" } }, { "doc_id": 3, "seg_id": 47, "translation": { "en": "For the above reasons, we have granted leave to appeal against sentence and, treating the application as the appeal proper, we have allowed the appeal, set aside the sentence of 3 years’ imprisonment and substituted therefor imprisonment for 2 years and 3 months.", "zh-HK": "基於上述理由，本庭批准就判刑提出的上訴申請許可，並視之為正式上訴。上訴得直，3 年監禁刑期撤銷，改判2 年3 個月監禁。" } }, { "doc_id": 3, "seg_id": 48, "translation": { "en": "Mr. Franco Kuan, Senior Public Prosecutor of the Department of Justice, for the HKSAR", "zh-HK": "答辯人：由律政司高級檢控官關百安代表香港特別行政區" } }, { "doc_id": 3, "seg_id": 49, "translation": { "en": "Mr. Derek Hu, instructed by Messrs. K.B. Chau & Co., for the Applicant", "zh-HK": "申請人：由周啟邦律師事務所轉聘胡德理大律師代表" } }, { "doc_id": 4, "seg_id": 1, "translation": { "en": "Hon. Mr Justice Woo, JA (delivering the judgment of the court):", "zh-HK": "高等法院上訴法庭法官胡國興宣讀上訴法庭判案書:" } }, { "doc_id": 4, "seg_id": 2, "translation": { "en": "The applicant for leave to appeal, Ho Bing-kee, was convicted of 9 charges after trial by Deputy District Court Judge M Tong on 20 December 1999 and was sentenced to 3 1/2 years’ imprisonment. On 4 January 2000 the applicant applied for leave to appeal against sentence and on 29 February 2000 for leave to appeal against conviction out of time.", "zh-HK": "上訴許可申請人何炳基於1999年12月20日經審訊後被區域法院暫委法官唐文裁定九項罪名成立，判刑3年半監禁。申請人於2000年1月4日提出就刑罰上訴許可的申請，又於2000年2月29日提出逾期申請，要求許可就判罪上訴。" } }, { "doc_id": 4, "seg_id": 3, "translation": { "en": "At the trial the applicant was the 1st defendant, the other person Wong Chi-kong, 71 years of age, was the 2nd defendant. The applicant was charged with nine charges, ie, the 1st to 4th and the 7th to 11th charges, while Wong Chi-kong was charged with two charges, the 5th and 6th charges. Wong Chi-kong turned prosecution witness after admitting the 5th charge.", "zh-HK": "在原審中申請人為第一被告，另一人黃志剛（71歲）為第二被告。申請人被控九項罪名，即第1至4項及第7至11項，而黃志剛則被控兩項罪名，即第5及6項。黃志剛承認第5項控罪後，轉為控方證人。" } }, { "doc_id": 4, "seg_id": 4, "translation": { "en": "The 1st to 4th and the 7th charges stated that the applicant made false representations for the purpose of obtaining an entry permit, contrary to s. 42(1)(c) of the Immigration Ordinance Cap. 115. Those five charges stated that the 1st defendant, on respectively 1 October, 11 October, 5 December, 13 December of 1996 and 29 January 1997 made representations, knowing the same to be false or not believing the same to be true for the purpose of obtaining a Hong Kong Entry Permit Audit No. 071044 in that, in the application for the said entry permit, he falsely represented that he was applying for the said Hong Kong Entry Permit on behalf of Wong Chi-yin (who in fact was Leung King-wah). The 8th charge stated that the applicant, on 24 April 1997, had in his possession of the said unlawfully obtained Hong Kong Entry Permit. The 9th and 10th charges stated that the applicant, on respectively 16 February 1998 and 8 July 1998, aided, abetted, counselled or procured Leung King-wah to make a representation which he (the applicant) knew to be false or did not believe to be true, for the purpose of obtaining six Hong Kong Entry Permits Audit Nos. E005652 to E005657 ie, that the said Leung King-wah was Wong Chi-yin and that the said Leung King-wah was applying for the said entry permits on behalf of Wong Chi-yin’s six children, namely, Wong Man-lan, Wong Kwun-kin, Wong Kwun-yin, Wong Man-yee, Wong Man-ping and Wong Kwun-keung. The 11th charge stated that the applicant, on 8 July 1998, had in his possession the said six unlawfully obtained Hong Kong Entry Permits. The aiding and abetting offences stated above were contrary to s.89 of the Criminal Procedure Ordinance Cap. 221 and s.42(1)(c) of the Immigration Ordinance Cap. 115; the offences of unlawful possession were contrary to s.42(2)(c)(i) of Cap. 115.", "zh-HK": "控罪第1至4及7項分別控訴申請人為取得入境證而作出虛假的申述，違反香港法例第115章《入境條例》第42(1)(c)條。該五項控罪內容分別指第一被告於1996年10月1日、10月11日、12月5日、12月13日及1997年1月29日等日子，為取得核數編號為071044的香港入境證而作出明知為虛假或自己亦不相信為真確的申述，即在申請該入境證時，虛假地表示是代表黃志賢（其實該人是梁敬華）申請該香港入境證。第8項控罪指申請人於1997年4月24日管有非法取得的該香港入境證。第9及10項控罪則分別指申請人於1998年2月16日及1998年7月8日協助、教唆、慫使或促致梁敬華作出明知為虛假或自己亦不信為真確的申述，即表示該梁敬華是黃志賢及該梁敬華代表黃志賢的六名子女，即黃敏蘭、黃冠堅、黃冠賢、黃敏儀、黃敏冰及黃冠強，申請六張核數編號為E005652至E005657的香港入境證。第11項控罪指申請人於1998年7月8日管有該六張非法取得的香港入境證。上述的協助或教唆罪行，是違反香港法例第221章《刑事訴訟程序條例》第89條及第115章《入境條例》第42(1)(c)條，而管有罪則違反香港法例第115章第42(2)(c)(i)條。" } }, { "doc_id": 4, "seg_id": 5, "translation": { "en": "The 5th charge which Wong Chi-kong admitted was also aiding and abetting the making of a false representation for the purpose of obtaining an entry permit in that Wong Chi-kong, on 13 December 1996, in Hong Kong, aided and abetted Ho Bing-kee (the applicant) to make a representation, which he knew to be false or did not believe to be true for the purpose of obtaining Hong Kong Entry Permit Audit No. 070144, in that he aided and abetted the said Ho Bing-kee to represent that he was applying for the said Hong Kong Entry Permit on behalf of Wong Chi-yin ( who in fact was Leung King-wah ).", "zh-HK": "黃志剛所承認的第5項控罪，亦是協助及教唆取得入境證而作出虛假的申述，其內容為黃志剛於1996年12月13日在香港，協助及教唆何炳基（即申請人）為取得核數號碼為070144的香港入境證，而作出明知為虛假或自己亦不相信為真確的申述，即協助及教唆何炳基表示他代表黃志賢（其實該人是梁敬華）申請該香港入境證。" } }, { "doc_id": 4, "seg_id": 6, "translation": { "en": "At the outset of the trial, the Prosecution and the Defence were able to agree extensively regarding the facts of the case and, in accordance with s. 65C of the Criminal Procedure Ordinance, reached agreement on the seizure and handling of a large volume of documentary evidence. The Prosecution only called two witnesses. PW1 was Leung King-wah named in the particulars of the offences. He was a mainlander whose native place was QingYuan, Guangdong. He was a merchant who came to Hong Kong by way of a two way permit to give evidence for the Prosecution and he was under an immunity granted by the Secretary for Justice that he would not be prosecuted for the offences he had committed on which he would give evidence at the trial. PW2 was the 2nd defendant in this case, Wong Chi-kong. After he admitted the 5th charge, he was willing to give evidence for the Prosecution. He was born in Hong Kong but fled from the place with his parents to their ancestral home town PanYu during WWII when the Japanese invaded Hong Kong. In 1949 he returned to Hong Kong and in 1957 settled back in PanYu. On 6 April 1995, he came to Hong Kong holding the Hong Kong Entry Permit obtained by the applicant on his behalf from the Immigration Department. He has two younger brothers and two younger sisters. Wong Chi-yin is one of his younger brothers who was also born in Hong Kong and later brought back to the mainland. Since 1950, Wong Chi Yin had already settled and worked in QinHuangDu of Hebei. Wong Chi-kong had all along kept in contact with Wong Chi-yin and he knew that he had two sons, namely Wong Hiu-ning and Wong Hiu-dong.", "zh-HK": "案件開審時，控辯雙方均能就案情達致廣泛的共識，並據《刑事訴訟程序條例》第65C條，就大量文件證物的檢獲及處理達成協議。控方只傳召了兩名證人在庭上作供。控方第一證人是控罪內容所提及之梁敬華。他是一名內地人士，原藉廣東清遠，是一名商人。他以雙程證來港為控方作供，並獲律政司司長承諾不會因他在本案作供中述及他所干犯有關的罪行而對他進行起訴。控方第二證人為案中之第二被告黃志剛。他承認了第5項控罪後，願意為控方作證。他在香港出生，但由於日本人在第二次世界大戰時入侵香港，所以他當時隨父母逃難回到祖藉番禺。1949年他回到香港，1957年再到番禺定居。1995年4月6日，他持着申請人替他向香港入境處申請到的香港入境證來港。他共有兩弟兩妺，而黃志賢就是他其中一名弟弟。黃志賢亦是在香港出生，之後被帶回大陸，自1950年起，他便已經去了河北省秦皇島定居及工作。黃志剛一直與黃志賢保持聯絡，知道他有兩名兒子，分別為黃曉寧及黃曉東。" } }, { "doc_id": 4, "seg_id": 7, "translation": { "en": "On 6 April 1995, Wong Chi-kong came to settle in Hong Kong, holding the Hong Kong Entry Permit obtained through the assistance of the applicant. Thereafter, the applicant asked for his help to make an application in his brother’s name for a person from QinXinXian to come to Hong Kong. In view of the fact that the applicant had successfully applied on his behalf for him to come to Hong Kong, Wong Chi-kong agreed to his request. Wong Chi-kong wrote down two sets of documents at the applicant’s dictations on two separate occasions. The documents were given to the applicant in support of Wong Chi-yin’s application for immigration. Wong Chi-kong, of course, was well aware of the fact that his brother Wong Chi-yin had no intention of coming to Hong Kong. Besides, Wong Chi-kong, under the abetment of the applicant, falsely represented to Immigration officers that the applicant for entry, the so- called Wong Chi-yin, was his own brother and made false replies to them as instructed by the applicant.", "zh-HK": "黃志剛於1995年4月6日持由申請人協助下所得到的香港入境證來港定居後，申請人要求他協助，以他弟弟的名義，替一個清新縣的人申請來港。黃志剛鑑於申請人曾代其成功申請來港的關係，所以答應他的要求。黃志剛分別兩次在申請人背默的方式下，書寫兩份文件，交給申請人支持黃志賢的入境申請。當然黃志剛清楚知道他的弟弟黃志賢根本沒有打算來香港。另外，黃志剛亦在申請人教唆下向入境處職員訛稱申請入境的所謂黃志賢為其親弟弟，並依照申請人教他的方法，向入境處人員作出虛假的回應。" } }, { "doc_id": 4, "seg_id": 8, "translation": { "en": "PW1 Leung King-wah, born on 18 November 1950, had 4 children with his wife. The so-called six children of Wong Chi-yin, as referred to in the 9th to 11th charges, were not his children. He said his first meeting with the applicant was inside the flat of a friend, Chu Han-lan. Chu Han-lan addressed the applicant as “Uncle Kee” as she introduced him to PW1. The applicant told the witness that the witness could assume Wong Chi-yin’s name by a Hong Kong Birth Certificate in Wong’s name so as to apply for himself and his children to come to Hong Kong. Though the witness did not quite believe in what the applicant had said, still he agreed to the plan. The applicant then asked the witness to arrange for some certificates of identity sufficient to prove that he was Wong Chi-yin. During the meeting, the three of them had discussed to let Chu Han-lan and her daughter pretend as Wong Chi-yin’s children for their applications for immigration to Hong Kong. Eventually, as PW1’s children had no intention of coming to Hong Kong, the applicant arranged four other persons together with Chu Han-lan and her daughter, all assuming to be the children of PW1 who went under Wong Chi-yin’s name.", "zh-HK": "控方的第一證人梁敬華於1950年11月18日出生。他與太太共有四名子女，而第9至11項控罪中所提及的黃志賢的所謂六名子女均非他的子女。他說他第一次與申請人會面是在他的一名朋友朱杏蘭的家中進行。朱杏蘭介紹申請人稱他為“基叔”給控方第一證人。申請人向證人說證人可以用一張以黃志賢為名的香港出生紙冒名頂替黃志賢，申請證人自己及他的子女到香港。證人雖然不太相信，但還是同意了有關的計劃。申請人於是要求證人弄來一些足以證明其身分為黃志賢的證件，以證明他是黃志賢。在會面中，三人曾相議讓朱杏蘭及她的女兒冒充黃志賢的子女，以之申請來港。其後由於控方第一證人的子女均不想到香港，所以申請人便找來另外四人與朱杏蘭母女一併冒充是控方第一證人冒名的黃志賢的子女。" } }, { "doc_id": 4, "seg_id": 9, "translation": { "en": "PW1 deceived the relavant authorities in the mainland and was issued six sets of birth certificates containing false particulars, all for the use of Chu Han-lan and her daughter as well as the other four mainlanders arranged by the applicant. PW1 also obtained four mainland certificates of identity together with other proofs of identity in Wong Ch-yin’s name including a certificate of identity, a marriage certificate, a bicycle card, a certificate of residence and a ration card, all of which he gave to the applicant.", "zh-HK": "控方第一證人欺騙了內地的有關單位，並獲發給六張載有虛假內容的出生證明書，以供朱杏蘭母女及另外申請人所找來的四名內地人士之用。另外控方第一證人又取得四張內地身分證及其他以黃志賢為名的內地身分證、結婚證明書、單車證、戶口簿及糧食證等等，交給申請人。" } }, { "doc_id": 4, "seg_id": 10, "translation": { "en": "Around June 1997, the applicant told PW1 that he had obtained a Hong Kong Entry Permit for him. The applicant asked for HK$300,000 from PW1 as his reward for arranging him to come to Hong Kong. As the witness had no money, he gave the applicant an IOU signed by him dated 19 July 1997, with a title deed as security. Later as the applicant was not satisfied with the arrangements he asked PW1 to sign additionally a promissory note dated 21 July 1997 and also produce a copy of the registration certificate of his car, putting up a Benz 300, registration number Gui K01070 as a security for his debt in the sum of HK$300,000. Subsequently due to the applicant’s pressure for money, PW1 paid the applicant RMB￥30,000 in Guangzhou, the receipt of which was acknowledged in writing signed by the applicant. The documents mentioned above were exhibits produced with the agreement of the Prosecution and the Defence. After obtaining the Hong Kong Entry Permit from the applicant, PW1 then came to Hong Kong on 23 July 1997. Following his application for a Hong Kong ID card and Re-entry Permit, he returned to the mainland. During his stay in Hong Kong, he saw the applicant once to twice, mainly for plotting the arrival of the 6 children who passed off as Wong Chi-yin’s children under the assumed names as stated in the 9th and 10th charges.", "zh-HK": "1997年6月左右，申請人告訴控方第一證人已替他取得香港入境證。申請人向控方第一證人索取300,000元港幣作為安排他到香港的報酬。由於證人沒有錢，所以他簽了一紙日期為1997年7月19日的欠單，以房契作為欠款的抵押品，交給申請人。後來由於申請人不滿意有關安排，又要求控方第一證人簽了另外一張日期為1997年7月21日的承諾書，並交出一張其車輛登記證的副本，把一輛編號為《桂K01070》的奔馳300型號的房車抵押該筆300,000港元的欠款。其後又因申請人要求緊迫的關係，控方第一證人曾在廣州付過30,000元人民幣給申請人，申請人並且為此簽紙作實。上述各文件皆為控辯雙方同意之呈堂證物。控方第一證人由申請人處取得香港入境證後，便在1997年7月23日來到香港，之後他便申領了香港的身份證及回港證，跟着便返回內地。在港期間，他曾經見過申請人一至兩次，主要是為了策劃那六名偽冒黃志賢的子女來港，而他們的偽冒名字即為第9及10項控罪所述的名字。" } }, { "doc_id": 4, "seg_id": 11, "translation": { "en": "In his Reasons for Verdict, the trial judge gave a detailed description and evaluation of the evidence mentioned above, reminding himself of the following regarding the witnesses and the following evidence:", "zh-HK": "在裁決理由書中，原審法官就上述的證據作出了詳細的陳述及評估，更就證人及下列各項證據向自己作出提醒：" } }, { "doc_id": 4, "seg_id": 12, "translation": { "en": "The applicant had chosen not to give evidence. However, as he was a person with no conviction record, the judge reminded himself to consider carefully that he was less likely to commit the offence;", "zh-HK": "申請人並沒有選擇作供。但是由於他是沒有犯罪紀錄的人，法官提醒自己要小心考慮申請人因此會干犯控罪的可能性較低；" } }, { "doc_id": 4, "seg_id": 13, "translation": { "en": "Although the applicant chose not to give evidence, the judge would not draw any unfavourable inference against him; and", "zh-HK": "雖然申請人選擇不作供，法官不會因此對他作出任何不利的推論；和" } }, { "doc_id": 4, "seg_id": 14, "translation": { "en": "PW1 Leung King-wah and PW2 Wong Chi-kong were accomplices in this case, as alleged in the charges, such that they might try to shirk the responsibility for the crimes onto the applicant to their benefit. Accordingly the judge reminded himself to handle the evidence of the accomplices with extra care and to look for corroborative evidence in order to determine the weight of the testimonies of the two witnesses.", "zh-HK": "控方第一證人梁敬華及控方第二證人黃志剛皆是控罪所指案件之同謀，故他們作證時可能嘗試把案中的刑責推卸到申請人身上，從而使自己得益。故此法官提醒自己在處理共犯證據的時候，要格外小心及尋求佐證，以决定該兩名證人口供的份量。" } }, { "doc_id": 4, "seg_id": 15, "translation": { "en": "The judge had also considered carefully the evidence of PW1 and PW2. There were some discrepancies regarding dates and what kind of documents they had read. However the judge considered that these discrepancies were of secondary importance and on minor issues, and that the evidence in these areas was less accurate due to a lapse of two to three years between the time of the incident and the time of the trial. It was not surprising at all that there were discrepancies in these peripheral matters; on the contrary, it rather underlined that the witnesses did not have any intention to fabricate against the applicant.", "zh-HK": "法官亦仔細考慮控方第一證人及第二證人的證供，在日子方面和他們曾看過甚麼文件方面上，有些出入，但法官認為這些都是次要的環節及枝節的問題，證供在這些地方不太準確，是因為案發時與審訊時有兩、三年的距離，所以證供在這些枝節上有些出入，實不足為奇，反而特顯出證人不是一心一意地去誣陷申請人。" } }, { "doc_id": 4, "seg_id": 16, "translation": { "en": "The judge also carried out evaluation on the two loan bills in the sum of HK$300,000 signed by PW1. Those bills did not account for how the loan was made at all and there was not any record of any cheque with which the applicant had passed the money to PW1. Or, if the loan in the sum of HK$300,000 had been passed to PW1 in the form of cash, there was no acknowledgement of receipt whatsoever of the said sum by PW1. Therefore the judge did not accept the suggestion of the counsel for the applicant that the applicant had lent HK$300,000 to PW1. The judge found that the reason why PW1 was willing to sign the loan bills with his landed property and car as security was only for the exchange of the entry permit in Wong Chi-yin’s name. All these strongly corroborated the evidence of PW1. Besides, the judge also dealt with the applicant’s defence that he believed PW1 to be Wong Chi-yin, Wong Chi-kong’s blood brother. However, when PW1 and Wong Chi-kong’s evidence was viewed as a whole, they all pointed to the fact that the applicant knew perfectly well that Wong Chi-yin, on whose behalf he was making the application, was only the name of Wong Chi-kong’s younger brother. PW1 Leung King-wah was a QingYuan native. He was not in any way related to Wong Chi-kong and his brother Wong Chi-yin whose native place was PanYu. Moreover the applicant was well aware that Chu Han-lan and her daughter had falsely represented themselves as Wong Chi-yin’s children. These pieces of evidence as well as other documentary evidence firmly proved that the applicant had provided information which he knew to be false to the Immigration Department to obtain the entry permit in Wong Chi-yin’s name for the use of PW1 Leung King-wah and that he aided and abetted PW1 to deceive the Immigration Department to obtain the Hong Kong Entry Permits for those who assumed themselves to be Wong Chi-yin’s children as stated in the 9th to the 11th charges.", "zh-HK": "法官亦就控方第一證人所簽的300,000港元兩張借據，作出評估。該等借據根本沒有對借錢作出交待，也沒有任何申請人將錢交給控方第一證人的票據紀錄，但如該300,000港元的借款是以現金方式交給控方第一證人，卻又沒有任何控方第一證人的簽收作證。所以法官不接納代表申請人的大律師所提議申請人曾借給控方第一證人300,000港元。法官認為證據明顯證明控方第一證人之所以肯以房產及汽車抵押而簽下借據，僅是為了換取那個以黃志賢為名的入境證，均可作控方第一證人證供有力的佐證。另外，法官亦處理申請人的抗辯理由，就是他相信控方第一證人為黃志剛的親弟黃志賢。但是綜合控方第一證人及黃志剛的證供，明顯指出申請人明知他要代為申請入境的黃志賢，只是黃志剛的弟弟的名字，而控方第一證人梁敬華是一名清遠人士，與黃志剛及他的弟弟黃志賢兩人及他們原藉的番禺，並無關係，且申請人又明知朱杏蘭母女偽稱為黃志賢子女。這些證據和其他文件上的證據，確實證明申請人提供他明知虛假的資料給入境處，以獲取以黃志賢為名的入境證，供控方第一證人梁敬華之用，更協助及教唆控方第一證人向入境處騙取控罪第9至第11項所指之六個黃志賢的偽冒子女的香港入境證。" } }, { "doc_id": 4, "seg_id": 17, "translation": { "en": "The evidence in this case is irrefutable and the trial judge has not erred in dealing with and evaluating the various aspects of the evidence; thus there would not be any chance of success for the applicant’s appeal against conviction.", "zh-HK": "此案證據確鑿，而原審法官在處理及評估各項證據方面，並無犯錯，固此申請人上訴推翻判罪，並無成功機會。" } }, { "doc_id": 4, "seg_id": 18, "translation": { "en": "The applicant stated in this court that the trial judge had erred in that he had not considered the applicant’s evidence in relation to this case. Nevertheless this could not be a ground of appeal because at the trial, the applicant had chosen not to give evidence, so the trial judge had no way to consider his evidence.", "zh-HK": "在本庭，申請人說原審法官犯錯，因他沒有考慮申請人有關本案之證供。但是這不能成為上訴理由，因為在原審時申請人自己選擇不作供，原審法官無從考慮。" } }, { "doc_id": 4, "seg_id": 19, "translation": { "en": "In the applicant’s application for leave to appeal against sentence dated 4 January 2000, above the part where he put down his signature was printed the following:", "zh-HK": "在申請人2000年1月4日的判刑上訴許可申請通知書中，在申請人簽名的部份上面，印有如下的文字：" } }, { "doc_id": 4, "seg_id": 20, "translation": { "en": "“It has been explained to me in detail that my appeal against sentence could be lodged along with my appeal against conviction. The appeals would be dealt with severally and the determination on each case would not bear any effect on the other.”", "zh-HK": "“本人經獲詳細解釋可用時「判罪」及「刑期」一併提出上訴，而兩項上訴當會獲得分別審理，且其裁決結果互無影響，各不相干。”" } }, { "doc_id": 4, "seg_id": 21, "translation": { "en": "The applicant wrote on the notice of application for leave to appeal, “I, Ho Bing-kee (P197869), think that the sentence is too severe and therefore wish to apply for appeal to have the sentence reduced.” This shows that at that time his application for leave to appeal was only made against sentence. Moreover he clearly knew that the appeal against conviction and the appeal against sentence were different appeals but he only chose to apply for leave to appeal against sentence.", "zh-HK": "申請人在該通知書中親自寫上“本人何炳基（編號P197869）因對判刑之刑期過重，故欲申請上訴減刑。”由此可見，申請人當時只對刑期作出上訴許可的申請，且他亦應明顯知道，上訴判罪及上訴刑期是兩項不同的上訴，而他只選擇就刑期作出上訴許可的申請。" } }, { "doc_id": 4, "seg_id": 22, "translation": { "en": "In his application for leave to appeal dated 29 February 2000, the applicant affirmed “I, Ho Bing-kee, had applied within the limit of 28 days for leave to appeal to have the sentence reduced. As I was not familiar with the proceedings I thought that the appeal against sentence covered the appeal against conviction. When I was in prison I learned from an officer that appeal against conviction and that against sentence were two different matters. Therefore I ask the authorities concerned to allow the application for leave to appeal out of time against conviction.”", "zh-HK": "在2000年2月29日的上訴許可申請通知書中，申請人宣誓“本人何炳基，已於28天限期內申請上訴減刑，當時因不懂法律程序，以為上訴減刑已包含上訴不服。但是本人在坐監期間，從所員處得知，原來上訴不服與減刑為兩回事。因此，本人要求有關方面批准過期上訴不服之申請為禱。”" } }, { "doc_id": 4, "seg_id": 23, "translation": { "en": "In the notice of application dated 4 January 2000, the applicant should have understood from its content that the applications for leave to appeal against conviction and that against sentence were two different matters; therefore this court does not believe that the applicant, on signing the first notice of application, did not understand that the application for reduction of sentence did not include the application for leave to appeal against conviction. Further, in the words he had written he only stated that the sentence was too severe that he wished to apply for the sentence to be reduced. This clearly bore no reference to his conviction. Thus, his application for leave to appeal out of time against conviction is without sufficient grounds. Besides, this court has already stated above that the trial judge did make detailed evaluations in respect of various evidence and exhibits in this case, and in so doing he had not made any mistake. Therefore the appeal against conviction would have no chance of success. Accordingly this court refuses the application out of time for leave to appeal against conviction.", "zh-HK": "因在2000年1月4日的申請通知書中，申請人應從它的內容明白申請判罪及刑期上訴許可實為兩件不同之事，故此本庭不相信申請人在簽署該第一份通知書時，並不明白他減刑的申請不包括他判罪上訴許可的申請。再者，在他本人所書寫的文字中，只指出所判之刑期過重，故欲申請上訴減刑，明顯與他之被判罪名成立全無關係。故逾期申請上訴判罪之許可，並無足夠理由支持。另外，本庭已於上文指出，原審法官就本案之各項證供及證物皆有詳盡之評估，並無犯錯，故上訴判罪並無成功機會。因此，本庭拒絕判罪上訴許可逾期之申請。" } }, { "doc_id": 4, "seg_id": 24, "translation": { "en": "Regarding sentence, the applicant was sentenced to 31/2 years’ imprisonment in respect of each charge, all to run concurrently.", "zh-HK": "刑期方面，申請人就九項控罪各被判入獄3年半，同期執行。" } }, { "doc_id": 4, "seg_id": 25, "translation": { "en": "In his reasons for verdict, the trial judge said as follows:", "zh-HK": "在判刑理由書中，原審法官有如下的說話：" } }, { "doc_id": 4, "seg_id": 26, "translation": { "en": "“The charges with which the 1st defendant was found guilty were very serious charges. The maximum sentence for all charges was 14 years’ imprisonment and $150,000 fine. The said charges showed clearly that the 1st defendant plotted and organised the offences which he committed with a view to make Hong Kong Immigration Department believe that PW1 and his six assumed children were legal Hong Kong residents so that seven entry permits would be issued to them enabling them to come to Hong Kong with those documents while the 1st defendant obtained benefits from them, in that he made PW1 sign loan bills in the sum of HK$300,000 and also in fact obtained a sum of RMB￥30,000 from him.", "zh-HK": "“第一被告在本案中被本席裁定罪名成立的控罪，均為非常嚴重的控罪，所有控罪的最高刑罰為14年監禁及罰款15萬元。而有關的控罪明顯顯示第一被告是有計劃地及有組織地干犯上述罪行，其目的是要令香港人民入境事務處誤信第一控方證人及有關其六名僞冒子女均為香港的合法居民，從而對他們發出有關的七張入境證，讓他們得以持該等證件來港，而第一被告則收取他們的利益，即令第一控方證人簽下了30萬港元的借據及實際上由他那裡取得到了3萬元人民幣。" } }, { "doc_id": 4, "seg_id": 27, "translation": { "en": "As Hong Kong is a small place with a large population, those who enter Hong Kong by way of illegal means will be sentenced severely. An illegal immigrant who has no previous conviction and admits his guilt in court will still face an immediate imprisonment of 15 months. If this case had not been exposed by the mainland authorities, the 1st defendant would have obtained, by illegal means, the right of abode in Hong Kong for seven mainlanders, enabling them to live and work freely in Hong Kong. The gravity of the circumstances in this case was self-evident.", "zh-HK": "由於香港是一個地小人多的社會，法庭對於從非法入境方式進入香港人士，均一律會判處重刑。就是一名在法庭認罪，沒有案底的非法入境者，也會面對15個月的即時監禁。而第一被告在是次計劃中，倘若不是由內地揭發出這宗案件的話，將會令七名內地人士可以非法取得香港的合法居留權，使他們可以隨意在香港定居及工作，其情節之嚴重自是不言而喻。" } }, { "doc_id": 4, "seg_id": 28, "translation": { "en": "In my judgment the punishment will not serve as a deterrent if the 1st defendant is not severely sentenced. Therefore I take a total of 4 years as the starting point in this case. As the defendant has no previous convictions, after due consideration to the totality, I make a reduction on his sentence to 31/2 years. I now impose on the defendant a sentence of 3 years and 6 months for each charge of which he was convicted. As the charges formed one transaction, I order the term on each charge to run concurrently.”", "zh-HK": "為此，本席認為非重判第一被告，不足以儆效尤，故現在本席以整體4年為量刑起點，但鑑於被告是沒有案底，故本席將其刑罰酌量減為3年半，現本席判第一被告就每項被本席定罪的控罪，需要服刑3年零6個月。由於各項控罪均關乎一整體性的犯罪行為(one transaction)，故本席下令有關每控罪的刑期均同期執行。”" } }, { "doc_id": 4, "seg_id": 29, "translation": { "en": "This Court considers that the reasons for the sentence mentioned above ample and unassailable and accepts all of them. The maximum sentence for each charge is 14 years’ imprisonment. The judge had in fact been very lenient to the applicant by taking a starting point of four years. This Court takes this opportunity to indicate that in this kind of cases — deceiving related authorities in the mainland and the Hong Kong Immigration Department by various illegal and deceptive means with planning and organisation to obtain, by way of deception, Hong Kong Entry Permits for pecuniary benefits — are very serious offences. If our courts are to deal with cases with similar features, the starting point of four years’ imprisonment should be viewed as too low.", "zh-HK": "本庭認為，判刑理由充分，無懈可擊，全為本庭所接納。控罪的最高刑罰為14年監禁，而法官只以4年監禁為量刑起點，其實對申請人已異常寬大。本庭更趁此表示，在此等案件中， 以各式各樣的非法及欺詐手法，矇騙內地有關單位及香港人民入境事務處，為了金錢上的利益而有計劃及組織地騙取香港入境證，實是極為嚴重的罪行，如有情節相約案件發生為法庭處理時，則4年監禁的量刑起點，應被視為過低。" } }, { "doc_id": 4, "seg_id": 30, "translation": { "en": "This Court refuses the application for leave to appeal against sentence.", "zh-HK": "本庭拒絕上訴減刑許可的申請。" } }, { "doc_id": 4, "seg_id": 31, "translation": { "en": "Miss Sin Pui-har Sr Asst DPP for HKSAR", "zh-HK": "香港特別行政區：由高級助理刑事檢控專員冼佩霞代表" } }, { "doc_id": 4, "seg_id": 32, "translation": { "en": "Applicant for leave to appeal: in person", "zh-HK": "上訴許可申請人：無律師代表" } }, { "doc_id": 5, "seg_id": 1, "translation": { "en": "Hon Yeung JA (giving the Judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案書：" } }, { "doc_id": 5, "seg_id": 2, "translation": { "en": "Background facts", "zh-HK": "背景事實" } }, { "doc_id": 5, "seg_id": 3, "translation": { "en": "In the morning of 14 March 2007, customs officers began their surveillance operation near the Regal Oriental Hotel in Kowloon City. At around 1 p.m. on the same day, the officers found the 1st applicant, Ngan Ka-chun (“Ngan”) and the 2nd applicant, Tsui Wai-sing (“Tsui”) appearing outside the hotel one after another and leaving the hotel together at about 1:30 p.m. for an eatery nearby (“Wong Ming Kee”). Later, the two of them returned to the hotel and went upstairs by lift. About 10 minutes later, the two left the hotel and went to Wong Ming Kee again. They left Wong Ming Kee after staying there for about 10 minutes, and boarded a taxi to go to Festival Walk. They were intercepted by customs officers when they alighted from the taxi at Festival Walk. They put up resistance and struggled with the officers in a bid to flee but were eventually subdued and arrested by the officers. Throughout the course of the surveillance and during the arrest, Ngan was carrying a backpack on his back. After the two applicants were arrested, the officers found six black plastic bags in the backpack, containing a total of 5,844.25 grammes of crystalline solid containing a total of 4,680.2 grammes of N,N-dimethylamphetamine (NNDMA).", "zh-HK": "2007年3月14日上午，海關關員在九龍城富豪東方酒店附近開始監視行動。同日正午約1時，關員發現第一申請人顏家俊及第二申請人徐偉勝先後在酒店門外出現，並在約1時30分一起離開酒店前往附近一食肆（“黃明記”）。其後兩人返回酒店並進入了電梯上樓。大約10分鐘後，兩人離開酒店再前往“黃明記”。他們在“黃明記”逗留約10分鐘後離開，並登上一部的士前往又一城。當他們在又一城下車時遭關員截查。他們曾掙扎並和關員糾纏及嘗試逃走，但不成功，最終被制服及拘捕。在關員監視及拘捕兩人期間，顏家俊全程都背著一背囊。拘捕兩名申請人後，關員在該背囊內搜獲6袋黑色膠袋，共載有5,844.25克的晶狀固體，內含共4,680.2克N N二甲基安非他明(NNDMA)。" } }, { "doc_id": 5, "seg_id": 4, "translation": { "en": "When the customs officers searched Ngan’s residence subsequently, they found 166 millilitres of liquid containing 0.08 gramme of methamphetamine, two tablets containing 9 milligrammes of NNDMA, 7 milligrammes of ketamine and 0.14 gramme of 3,4-methylenedioxymethamphetamine.", "zh-HK": "其後關員搜查顏家俊的住所並再搜獲166毫升液體，內含0.08克甲基苯丙胺，兩片片劑，內含9毫克N N 二甲基安非他明、7毫克氯胺酮及0.14克3,4亞甲二氣基甲基安非他明。" } }, { "doc_id": 5, "seg_id": 5, "translation": { "en": "As a result of the above incident, the two applicants were jointly charged with the first charge of trafficking in a dangerous drug, namely the 4,680.2 grammes of NNDMA seized from the backpack that Ngan carried. Ngan was additionally charged with the second charge of possession of dangerous drugs, namely the small quantity of dangerous drugs found in his residence.", "zh-HK": "上述事件導致兩名申請人同被控第一項販運危險藥物罪，即在顏家俊所攜背囊內搜獲的4,680.2克N N二甲基安非他明。顏家俊被加控第二項管有危險藥物罪，即在其住所內搜獲的小量危險藥物。" } }, { "doc_id": 5, "seg_id": 6, "translation": { "en": "The two applicants pleaded not guilty to the first charge of trafficking in a dangerous drug while Ngan pleaded guilty to the second charge of possession of dangerous drugs.", "zh-HK": "兩名申請人否認第一項販運危險藥物罪，但顏家俊承認第二項管有危險藥物罪。" } }, { "doc_id": 5, "seg_id": 7, "translation": { "en": "The case was tried before Deputy High Court Judge M. Poon (as she then was) sitting with a jury. In the end, both applicants were found guilty of the first charge of trafficking in a dangerous drug and both of them were sentenced to a term of 18 years’ imprisonment for that charge. On the second charge of possession of dangerous drugs, Ngan was sentenced to 6 months’ imprisonment, to run concurrently with the 18 years’ imprisonment imposed on the first charge.", "zh-HK": "案件在高等法院暫委法官潘敏琦（當時職級）席前會同陪審團審理。結果兩名申請人都被裁定第一項販運危險藥物罪罪名成立。就該項販運危險藥物罪，兩名申請人都被判入獄18年。就第二項管有危險藥物罪，顏家俊被判入獄6個月，和第一項控罪的18年判刑，同期執行。" } }, { "doc_id": 5, "seg_id": 8, "translation": { "en": "Both applicants applied for leave to appeal against the conviction on the first charge and the sentences. As the application made by Tsui in respect of his conviction was out of time, he sought an extension of time from the court.", "zh-HK": "兩名申請人都不服就第一項控罪的定罪及判刑決定，故提出上訴許可申請，要求獲准就定罪及/或判刑上訴。徐偉勝就定罪的申請已逾期，他要求法庭延展其申請的期限。" } }, { "doc_id": 5, "seg_id": 9, "translation": { "en": "In their applications for leave to appeal against sentence, Ngan and Tsui are represented by Mr. Andrew Kan of Counsel and Mr. Andy Hung of Counsel respectively. Both of them are unrepresented and act in person in respect of their applications against conviction. At the first hearing of the applications on 16 December 2008, Ngan abandoned his application against conviction and the application was dismissed accordingly. As a result, we need only to deal with Tsui’s application against conviction and both applicants’ applications against sentence.", "zh-HK": "就判刑申請，顏家俊和徐偉勝分別由簡定濤 大律師及孔慶碩大律師代表。就定罪申請，他們沒有律師代表，親自行事。2008年12月16日，在本申請首次開庭時，顏家俊放棄就定罪的申請，該申請亦隨即被撤銷。因此，本庭只需處理徐偉勝就定罪的申請及兩名申請人就判刑的申請。" } }, { "doc_id": 5, "seg_id": 10, "translation": { "en": "Prosecution’s allegations and evidence", "zh-HK": "控方的指控及證據" } }, { "doc_id": 5, "seg_id": 11, "translation": { "en": "The prosecution alleged that the two applicants jointly trafficked in the dangerous drug referred to in the first charge. Apart from the undisputed background facts set out above, both the prosecution and the defence agreed that the two applicants each carried a mobile phone at the material times. Between the 1st and 14th of March 2007, the two applicants had communicated with each other via their mobile phones a total of 15 times, 8 of which were conducted between 1501 hours on 13 March 2007 and 1306 hours on 14 March 2007.", "zh-HK": "控方指兩名申請人共同販運第一項控罪所指的危險藥物。除了上述不具爭議的背景事實外，雙方亦同意兩名申請人在案發時都各自攜有一個手提電話。在2007年3月1日至14日期間雙方透過手提電話通話共15次，其中8次是在2007年3月13日下午1501時至2007年3月14日1306時進行的。" } }, { "doc_id": 5, "seg_id": 12, "translation": { "en": "At the time of the arrest and at the subsequent interviews, both applicants had offered explanations to the allegations of the prosecution. Ngan stated that Tsui had asked him to carry the backpack and had told him that the backpack contained “ga shan” (equipment). But he did not know what the backpack actually contained.", "zh-HK": "被捕及在其後的會面時，兩名申請人都對控方的指控作出解釋。顏家俊表示背囊是徐偉勝吩咐他攜帶的，並告訴他背囊載有“架生”，但他不知悉背囊所載確實是甚麼東西。" } }, { "doc_id": 5, "seg_id": 13, "translation": { "en": "Tsui admitted that the backpack was given to him by “Fat Kai”. Tsui stated that he “carried stuff for Fat Kai” in order to earn a remuneration. In his subsequent interview with the police, Tsui further explained how he had obtained the backpack, how he had delivered the backpack to the hotel according to instructions and given it to a person called Ah B. Tsui stated that Ah B helped Fat Kai to “get stuff for someone”. Not only did Tsui admit that he gave the backpack to Ngan, but he also admitted that he earned $10,000 in the incident, of which $4,000 was given to Ngan. However, Tsui stressed that he had never opened the backpack and therefore, he did not know what the backpack contained. But he also stated that he “knew it was not something good”, knew it was “illegal” and knew it was “dangerous goods”. But he did not know what kind of dangerous goods it was. Tsui stated that Fat Kai had told him, “Don’t open it, they measured up”, and he had also said “I thought I got nailed, for everybody knew that we were doing that kind of thing.”", "zh-HK": "徐偉勝承認涉案的背囊是由“肥佳”交給他的。徐偉勝表示自己“幫肥佳帶嘢”，賺取酬勞。其後和警員會面時，徐偉勝再就如何取得背囊，如何按指示將背囊送往酒店，交給一名叫阿B的人再作解釋。徐偉勝指是阿B幫肥佳“攞嘢畀人”。徐偉勝不但承認背囊是他交給顏家俊的，更承認在事件中他賺取了10,000元，其中4,000元分了給顏家俊。但徐偉勝強調從未打開過背囊，故不知悉背囊所載何物，但他同時表示，“知唔係好嘢”，知道是“非法”的，知道是“危險品”，但不知甚麼危險品，徐偉勝表示肥佳吩咐他“唔好打開，人哋夠秤”，亦有說過，“我以為我中咗，因為大家都知道喺度做緊嗰啲嘢。”" } }, { "doc_id": 5, "seg_id": 14, "translation": { "en": "The defence", "zh-HK": "答辯理由" } }, { "doc_id": 5, "seg_id": 15, "translation": { "en": "At trial, both Ngan and Tsui gave evidence for their own defence but neither called any witness. Both of them tried to shift the blame onto the other in their evidence.", "zh-HK": "原審時顏家俊和徐偉勝都有作供自辯，但他們沒有傳召證人。作供時，他們都試圖把罪責推向對方。" } }, { "doc_id": 5, "seg_id": 16, "translation": { "en": "Ngan stated that Tsui had asked him to carry the said backpack and he did not know that the backpack contained dangerous drugs.", "zh-HK": "顏家俊指是徐偉勝要他攜帶有關背囊，而他是不知道背囊內載有危險藥物的。" } }, { "doc_id": 5, "seg_id": 17, "translation": { "en": "On the other hand, Tsui stated that Ngan had left the backpack with him in his house in the small hours of the day in question, and he subsequently handed the backpack back to Ngan. Tsui stated that he did not know what was contained in the backpack.", "zh-HK": "徐偉勝則指顏家俊在案發當日凌晨將背囊寄存在他的家中，其後徐偉勝將背囊交回給顏家俊。徐偉勝表示不知悉背囊內所載何物。" } }, { "doc_id": 5, "seg_id": 18, "translation": { "en": "Tsui stated that he went to the Regal Hotel in order to ask a friend to repay a debt, and since Ngan had told him that he wanted to go to somewhere near the hotel, they arranged to meet somewhere near the hotel. Inside the hotel, he took the lift trying to find the toilet but in vain. So he went to Wong Ming Kee to find the toilet and something to eat. Later, he got a call from his friend asking him to wait outside the hotel, but as his friend did not turn up, he returned to Wong Ming Kee. As Ngan stated that he wanted to go to Shatin to inspect certain decoration, he boarded a taxi with him to go to Festival Walk. No sooner had they alighted from the taxi than they were arrested.", "zh-HK": "徐偉勝表示到富豪酒店是找朋友還錢而顏家俊亦曾向他表示想到酒店附近，故兩人相約在酒店附近見面。在酒店內，他曾乘坐電梯找厠所，但找不到，故前往“黃明記”找厠所及吃東西。其後他收到朋友電話叫他在酒店門口等候，但結果等不到朋友，故再前往“黃明記”。因為顏家俊表示要往沙田看裝修，故和他一起坐的士到又一城，下車後隨即被捕。" } }, { "doc_id": 5, "seg_id": 19, "translation": { "en": "Tsui stated that he was assaulted after being arrested and he denied having made any confession. He said that he signed his name on some documents that were to his prejudice only because he had been threatened and assaulted. He stated that he had no idea at all of the contents of the documents and had not said what were written in the documents as said by him.", "zh-HK": "徐偉勝指被捕後遭人毆打，他否認有作出任何招認。他只是在被恐嚇及毆打下，在一些不利他的文件上簽名。他表示對文件的內容全不知悉，亦沒有說過文件上所寫的說話。" } }, { "doc_id": 5, "seg_id": 20, "translation": { "en": "The prosecution and defence agreed that Tsui received medical examination at Ruttonjee Hospital around 10:20 p.m. on the night in question. The doctor found that he had injury marks on his body, which included redness on his forehead, nose and the right side of his neck, abrasion on his lower lip, slight redness and tenderness on his left lower leg, and part of his right upper incisors were chipped and fractured. Tsui stated that the injuries were resulted from the assault by the customs officers but as he had been threatened by them, he did not tell the doctor the truth.", "zh-HK": "控辯雙方同意案發當晚約10時20分徐偉勝在律敦治醫院接受檢查後，醫生發現他身上有傷痕，包括額、鼻、右頸發紅、下唇擦傷、左下腿微紅及疼痛、右上門牙部份崩裂。徐偉勝指傷勢是遭關員毆打造成，但因遭關員恐嚇，故沒有向醫生道出真相。" } }, { "doc_id": 5, "seg_id": 21, "translation": { "en": "Grounds of appeal against conviction", "zh-HK": "就定罪的上訴理由" } }, { "doc_id": 5, "seg_id": 22, "translation": { "en": "Tsui did not set out his grounds of appeal in detail in his application for leave to appeal. He complained, “the judge placed emphasis on the prosecution’s evidence in the summing-up and neglected the challenge made by defence lawyer of the prosecution’s evidence, thereby making the jury forming a wrong impression that the judge held the same view, and as a result, the jury believed that I was guilty”. He repeated the course of events as alleged by him in his written submission. He insisted that he had been threatened by customs officers with violence, and he was forced to sign his name on the documents to show that he admitted the allegations of the prosecution against him. Tsui stressed that the directions of the trial judge to the jury failed to do him justice and he did not understand why the jury preferred the evidence of the customs officers to his evidence.", "zh-HK": "徐偉勝在其上訴申請書沒有列出詳細的上訴理由，他指“法官在陳詞中重點提及控方的證據，而忽略了辯方律師質疑控方的理據，形成陪審員錯誤以為法官都有同樣睇法，因而才相信本人有罪”。在其書面陳述，徐偉勝複述其指稱的案發經過。他力稱曾受關員暴力恐嚇，更被迫在文件上簽名，顯示他承認控方對他的指控。徐偉勝強調原審法官對陪審團的指引對他不公平，亦表示不明白為何陪審團信納關員的證供，郤不信納他的證供。" } }, { "doc_id": 5, "seg_id": 23, "translation": { "en": "The convictions in the present case are wholly founded on the views of the jury on the facts. The jury were conscious of the allegations of the applicant against the customs officers and the jury must have also taken into account the defence raised by the applicant. The jury were entitled to reject Tsui’s version of events and, based on the prosecution’s evidence that were accepted by them, to convict him. He alleged that he had been assaulted and injured by the police. But his injuries were wholly inconsistent with his allegation. We have also carefully considered the directions of the trial judge to the jury. We do not agree with Tsui’s assertions. The directions of the trial judge to the jury were reasonable, sufficient, full and fair. The trial judge had not neglected the version put forward by the defence. We do not find the conviction of Tsui on the first charge unsafe in any way. The evidence against him was ample and had been found established. Tsui’s application for leave to appeal against conviction is dismissed.", "zh-HK": "本案就定罪的裁決，全建基在陪審團對事實的看法。陪審團知悉申請人對關員的指控，陪審團亦必會將申請人的自辯理由考慮在內。陪審團有權否定徐偉勝的說法及接納控方的證據並根據控方證據將他定罪。他指被警員毆打受傷但其傷勢和其指稱絕不相符。本庭亦有詳細考慮原審法官對陪審團的引導。本庭不同意徐偉勝的立場。原審法官對陪審團的引導是合理、充份、全面及公平的。原審法官並沒有忽略了辯方的說法。對徐偉勝被裁定第一項控罪罪名成立，本庭不覺有任何不穩妥之處。針對他的證據是充份及確立的。本庭不批准徐偉勝就定罪提出上訴。" } }, { "doc_id": 5, "seg_id": 24, "translation": { "en": "The trial judge’s reasons for sentence", "zh-HK": "原審法官判刑理由" } }, { "doc_id": 5, "seg_id": 25, "translation": { "en": "The trial judge pointed out that the Court of Appeal has not laid down sentencing guidelines for trafficking in the dangerous drug involved in the present case, namely N,N-dimethylamphetamine (NNDMA). She also pointed out that according to the case HKSAR v So Shuk Yee CACC460/2004 and the expert report prepared by Professor Tang Wai Kwong for the present case, the potency of NNDMA is different from that of ‘Ice’ for the reasons that (1) NNDMA is less potent than ‘Ice’ in terms of its neurotoxic effects; (2) animal studies have shown that ‘Ice’ is 3 times more potent than NNDMA in its lethal effects; (3) in terms of its stimulant effects on the human central nervous system, NNDMA is 5 to 12 times less potent than ‘Ice’; (4) NNDMA is rarely abused as a single substance but is more often found in mixture with MDMA (“Ecstasy”) or ‘Ice’. The trial judge agreed that the sentencing guidelines for trafficking in ‘Ice’ are not applicable to trafficking in NNDMA.", "zh-HK": "原審法官指出上訴法庭並沒有就販運涉案的危險藥物，即N N 二甲基安非他明定下量刑指引。原審法官亦指出根據香港特區政府 訴 蘇淑儀（譯音） CACC 460/2004案及本案的鄧偉光博士撰寫的專家報告，N N 二甲基安非他明的毒性和“冰”毒的毒性不同。原因是（一）N N 二甲基安非他明毒性對人類神經做成的損害較” “冰”毒為低；（二）就動物測試而言，“冰”毒的致命毒性較N N 二甲基安非他明高三倍；（三）就刺激人類中樞神經而言，N N 二甲基安非他明的藥力只及“冰”毒的約1/12至1/5倍；（四）N N 二甲基安非他明很小單獨使用，而是多混於MDMA“忘我”，或“冰”毒一起被濫用。原審法官同意適用於販運“冰”毒的量刑指引不適用於販運N N 二甲基安非他明。" } }, { "doc_id": 5, "seg_id": 26, "translation": { "en": "The trial judge said that there was a consensus between trial counsel on both sides that the sentence for trafficking in NNDMA should be somewhere between that for trafficking in the same quantity of ‘Ice’ and that of ‘Ecstasy’.", "zh-HK": "原審法官指控辯雙方大律師有共識，即販運N N 二甲基安非他明應導致的判刑介乎販運相同份量的“冰”毒及“忘我”之間。" } }, { "doc_id": 5, "seg_id": 27, "translation": { "en": "The trial judge pointed out that under the relevant authorities, the starting point for the trafficking of 4,680 grammes of ‘Ice’ should be 24 to 25 years while that for the trafficking of 4,680 grammes of ‘Ecstasy’ should be 12 years.", "zh-HK": "原審法官指出根據有關案例，販運4,680克“冰”毒，量刑基準應為24、25年而販運4,680克“忘我”的量刑基準則應為12年。" } }, { "doc_id": 5, "seg_id": 28, "translation": { "en": "In particular, the judge pointed out that in HKSAR v Tsang Wai-kei CACC 452/2002 where it involved the trafficking of 4.2 kg of ketamine, the Court of Appeal held that the starting point of 12 years could be described as lenient. Given the principle that trafficking in ketamine and that in ‘Ecstasy’ would lead to similar terms of imprisonment, the trial judge took the view that the appropriate starting point to be adopted in the present case which involved the trafficking of 4,680 grammes of NNDMA should be somewhere between 12 and 25 years.", "zh-HK": "原審法官特別指出香港特區政府 訴 周偉基（譯音）CACC 452/2002案涉及販運4.2公斤氯胺酮,上訴法庭指12年的量刑基準屬輕判。在販運氯胺酮和販運“忘我”會導致相約的刑期的原則下，原審法官認為以本案涉及4,680克N N – 二甲基安非他明而言，適當量刑基準應介乎12年與25年之間。" } }, { "doc_id": 5, "seg_id": 29, "translation": { "en": "In the result, the trial judge adopted a starting point of 18 years’ imprisonment, being the median figure between 12 and 25 years, for the first charge in respect of both applicants.", "zh-HK": "最後，原審法官採納了12年及25年之間的中位，以18年為首項控罪的量刑基準來懲處兩名申請人。" } }, { "doc_id": 5, "seg_id": 30, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 5, "seg_id": 31, "translation": { "en": "Mr. Kan of Counsel and Mr. Hung of Counsel both complained that the starting point of 18 years adopted by the trial judge was too high.", "zh-HK": "簡大律師和孔大律師都指原審法官採納的18年量刑基準過高。" } }, { "doc_id": 5, "seg_id": 32, "translation": { "en": "Mr. Kan stressed the point strongly that as the starting point adopted by the judge in HKSAR v Tsang Wai-kei CACC 452/2002 for the trafficking of 4.2 kg of ketamine was 12 years, and while the Court of Appeal also approved the starting point of 18 years for the trafficking of 7.11 kg of ‘Ecstasy’ in HKSAR v Leung Ka-yin CACC 145/2005, the starting point for the present case should be below 18 years.", "zh-HK": "簡大律師強調香港特區政府 訴 周偉基 CACC 452/2002案，涉及販運4.2公斤氯胺酮，法官採納的量刑基準是12年而香港特區政府 訴 梁家賢 CACC 145/205案則涉及7.11公斤“忘我”，上訴法庭亦認同18年的量刑基準，因此簡大律師力稱本案的量刑基準應低於18年。" } }, { "doc_id": 5, "seg_id": 33, "translation": { "en": "Mr. Hung pointed out that NNDMA is not a kind of dangerous drug that is commonly seen and is far less potent than ‘Ice’. He stressed that as no studies of its potency have been conducted on humans, its effect in human is unknown, and the animal studies have shown that the lethal effect of NNDMA is only one-third of that of ‘Ice’.", "zh-HK": "孔大律師指出N N 二甲基安非他明並非常見的危險藥物而其毒性亦遠較“冰”毒為低。孔大律師強調N N二甲基安非他明並沒有以人類作為對象，試驗其毒性，故對人類的影響資料不詳，而對動物的測試結果亦顯示其毒性與“冰”毒的毒性相比，只有三分一。" } }, { "doc_id": 5, "seg_id": 34, "translation": { "en": "Mr. Hung said that according to Professor Tang’s report, in mice studies, the effect of depleting the substance dopamine, a neurotransmitter in the central nervous system, of NNDMA is only approximately one-eighth of that of ‘Ice’. And in mice and monkeys studies comparing NNDMA and ‘Ice’ in terms of the stimulant effect, NNDMA is 5 to 12 times less potent than ‘Ice’ while ‘Ecstasy’ is 7 times less potent than ‘Ice’. The median figure of the former is not far from the latter.", "zh-HK": "孔大律師指據鄧偉光博士的報告，以老鼠為實驗對象的研究顯示，N N二甲基安非他明對中樞神經內的神經傳導物質多巴胺(Dopamine)的消減效果只有約1/8而以老鼠及猴子為研究對象的實驗則顯示N N二甲基安非他明能導致的興奮作用和“冰”毒相比只是約1/12至1/5倍 之間，其中位數和“忘我”的1/7倍相差不遠。" } }, { "doc_id": 5, "seg_id": 35, "translation": { "en": "Mr. Hung’s stance is that not only is NNDMA less potent than ‘Ice’, but it is also less potent than ketamine and even ‘Ecstasy’, so its applicable starting point should also be lower than the starting points applicable to those types of dangerous drugs. Mr Hung also emphasized that NNDMA is far less commonly abused than other types of drugs.", "zh-HK": "孔大律師的立場是NN二甲基安非他明的毒性不但較“冰”毒為低，亦較氯胺酮（“K仔”），甚至（“忘我”）為低，故其適用的量刑基準亦應較適用於該些毒品的量刑基準為低。孔大律師強調濫用N N二甲基安非他明的程度亦遠較濫用其他毒品為低。" } }, { "doc_id": 5, "seg_id": 36, "translation": { "en": "Mr. Hung submitted that the starting point of 18 years adopted by the trial judge is manifestly excessive.", "zh-HK": "孔大律師認為原審法官採納的18年量刑基準屬明顯過重。" } }, { "doc_id": 5, "seg_id": 37, "translation": { "en": "The respondent’s stance", "zh-HK": "答辯人的立場" } }, { "doc_id": 5, "seg_id": 38, "translation": { "en": "Mr. Robert Lee, SC, for the respondent, agreed that NNDMA is less potent than ‘Ice’. He pointed out that in animal studies comparing NNDMA and ‘Ice’, the former is 3 times less potent than the latter and the stimulant effect of the former on the central nervous system is 5 to 12 times less potent than the latter.", "zh-HK": "代表答辯人的李紹強資深大律師同意NN二甲基安非他明的毒性較“冰”毒為低。李資深大律師指出NN二甲基安非他明和“冰”毒相比，以動物測試而言，毒性只及“冰”毒的三份一而刺激中樞神經作用則是約1/12至1/5倍之間。" } }, { "doc_id": 5, "seg_id": 39, "translation": { "en": "Mr. Lee SC pointed out that the above finding is similar to the findings of the ad hoc report cited in HKSAR v So Shuk-yee CACC 460/2004, namely according to a study by a Johns Hopkins School of Medicine research team, the behavioural effects that NNDMA can exert are only 10% to 20% of those that ‘Ice’ can exert. But Mr. Lee SC stressed that the lethal dosage of NNDMA is 3 times that of ‘Ice’ while that of ‘Ecstasy’ is 16 times, it shows that NNDMA is much more potent than ‘Ecstasy’.", "zh-HK": "李資深大律師指出上述說法和香港特區政府 訴 蘇淑儀 CACC 460/2004案中所引用的專案報告內容相約，即根據Johns Hopkins School of Medicine曾進行的研究，NN二甲基安非他明所產生的異常行為是和“冰”毒相比，只有10% 至20% 。但李資深大律師強調N N二甲基安非他明的致命劑量是“冰”毒的三倍，而“忘我”則是16倍，表示N N二甲基安非他明的毒性遠較“忘我”為高。" } }, { "doc_id": 5, "seg_id": 40, "translation": { "en": "Mr. Lee SC submitted that it is more reliable and rational to use the sentencing guidelines for trafficking in ‘Ice’ as the sentencing basis for trafficking in NNDMA.", "zh-HK": "李資深大律師認為用販運“冰”毒罪行的量刑指引作為販運NN二甲基安非他明罪行的量刑基礎是較可靠及合邏輯的。" } }, { "doc_id": 5, "seg_id": 41, "translation": { "en": "At the same time, Mr Lee SC submitted that the court should take the following factors into account when it considers the offence of illegal trafficking of the dangerous drug NNDMA:", "zh-HK": "李資深大律師同時認為法庭在考慮非法販運NN二甲基安非他明毒品時應將下列因素考慮在內：" } }, { "doc_id": 5, "seg_id": 42, "translation": { "en": "(1)There has been a trend of NNDMA being widely used recently. According to the ad hoc report:", "zh-HK": "（一） NN二甲基安非他明近期有廣泛使用的趨勢。根據專案報告：" } }, { "doc_id": 5, "seg_id": 43, "translation": { "en": "(i)This type of dangerous drug appeared in Asian countries in the past 10 years, and for example, there has been a rising trend of abuse of it in Taiwan;", "zh-HK": "(i)這類毒品在過往10年有在亞洲出現，並且以台灣為例其被濫用的情況有增加趨勢；" } }, { "doc_id": 5, "seg_id": 44, "translation": { "en": "(ii)This type of drug has been found as an adulterant in ‘Ecstasy’ in Hong Kong in the past;", "zh-HK": "(ii)這類毒品過往在香港曾被發現攙雜在“忘我”之中；" } }, { "doc_id": 5, "seg_id": 45, "translation": { "en": "(iii)According to the relevant statistics for the years 2001 to 2003, there has been a steady increase in cases and amount of seizures of this type of drug in Hong Kong.", "zh-HK": "(iii)香港2001至2003年有關數據顯示這類毒品被搜獲的案件正穩步上升。" } }, { "doc_id": 5, "seg_id": 46, "translation": { "en": "(2)According to the figures of the Narcotics Bureau, there are 11 cases of trafficking in NNDMA in the first 10 months of 2007 and the amount of seizures are 4,690 grammes which are nearly 10 times the amount of seizures in 2006.", "zh-HK": "（二）根據毒品調查科數字, 2007年頭10個月販運NN二甲基安非他明的案件有11宗，而搜獲的數量有4,690克，較2006年搜獲的數量多近10倍。" } }, { "doc_id": 5, "seg_id": 47, "translation": { "en": "(3)The known use of NNDMA can make ‘Ice’ even more extensively abused.", "zh-HK": "（三）NN二甲基安非他明的已知用途可令“冰”毒更泛濫。" } }, { "doc_id": 5, "seg_id": 48, "translation": { "en": "(4)The amount of drug involved in the present case is enormous.", "zh-HK": "（四）涉案毒品的數量龐大。" } }, { "doc_id": 5, "seg_id": 49, "translation": { "en": "Mr. Lee SC submitted that given the amount of NNDMA in the present case and taking into consideration the factors listed above, the starting point of 18 years adopted by the trial judge on the first charge cannot be described as excessive.", "zh-HK": "李資深大律師認為以本案NN二甲基安非他明毒品的數量，再考慮上述因素在內，原審法官就首項控罪的採納量刑基準18年並不為過。" } }, { "doc_id": 5, "seg_id": 50, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 5, "seg_id": 51, "translation": { "en": "Although the potency of NNDMA and ‘Ice’ (methamphetamine) are different, they are of the same category of drug and both are produced by synthesizing various chemicals in laboratories. We agree with the stance of Mr. Lee SC that the more reliable and rational approach would be to deal with the sentencing for trafficking in NNDMA on the basis of the sentencing for trafficking in ‘Ice’ and to make appropriate adjustment on account of their difference in potency.", "zh-HK": "NN二甲基安非他明和“冰”毒（“甲基安非他明）毒性不同，但屬同類毒品，都是在實驗室將不同化學原料經化學合成製造而成。本庭認同李資深大律師的立場，在考慮販運NN二甲基安非他明罪行的量刑時，以販運“冰”毒的量刑為基礎，再以兩者的毒性不同而作出適當調節是可靠及較合邏輯的處理方法。" } }, { "doc_id": 5, "seg_id": 52, "translation": { "en": "Mr. Hung emphasized that in considering the potency of NNDMA, one should bear in mind that there has been no study of NNDMA’s effects in humans.", "zh-HK": "孔大律師強調在考慮NN二甲基安非他明的毒性時，要緊記NN二甲基安非他明的影響並沒有用人類做過實驗。" } }, { "doc_id": 5, "seg_id": 53, "translation": { "en": "Although the potency of NNDMA has not been ascertained by means of human studies, we are of the view that the findings of the animal studies conducted in mice and monkeys are sufficient to reflect the potency of the drug and are also applicable to humans. This approach is approved by the Court of Appeal in HKSAR v Hii Siew-cheng, Wong Yat-san [2009] 1 HKLRD 1. (See paragraph 64 of the Judgment)", "zh-HK": "雖然NN二甲基安非他明的毒性，未有以人類為實驗來測試過，但本庭認為以動物，包括猴子和老鼠為測試對象的實驗結果足以反映其毒性強弱，對人類亦適用。上述處理方法在HKSAR 訴 許守城、黃日新 [2009]1 HKLRD 1案獲上訴法庭認同。（見該案判案書第64段）" } }, { "doc_id": 5, "seg_id": 54, "translation": { "en": "The undisputed literature and expert’s reports show that the potency of NNDMA is approximately one-third of that of ‘Ice’ and its stimulant effect on the central nervous system is approximately 5 to 12 times less effective than that of ‘Ice’. The depleting effect of NNDMA to the substance dopamine, a neurotransmitter, is about one-eighth of that of ‘Ice’.", "zh-HK": "雙方沒有爭議的文獻及專家報告顯示NN二甲基安非他明和“冰”毒相比，其毒性約為三份一，刺激中樞神經的興奮作用則約為1/12至1/5倍。N N二甲基安非他明對神經傳導物質多巴胺(Dopamine)的消減力亦達1/8。" } }, { "doc_id": 5, "seg_id": 55, "translation": { "en": "Although the potency of NNDMA is only about one-third of that of ‘Ice’, it does not mean that the starting point of sentencing for trafficking in NNDMA should also only be one-third of that for trafficking in ‘Ice’.", "zh-HK": "雖然NN二甲基安非他明的毒性只有“冰”毒的毒性的三份一，但不表示販運NN二甲基安非他明罪行的量刑基準亦應只是販運“冰”毒罪行的量刑基準的三份之一。" } }, { "doc_id": 5, "seg_id": 56, "translation": { "en": "Apart from the potency of the drugs in question, the court must also give regard to the public abhorrence of the offence of trafficking in dangerous drugs and to the resolve of the community to prevent young people from abusing drugs as well as to combat the crime of drug trafficking. The court should also take the use of the drug and the prevalence of its abuse into consideration.", "zh-HK": "除了有關毒品毒性的強弱外，法庭需要考慮社會大眾對販毒罪行嫌惡及防止青少年濫藥和打擊販毒罪行決心。法庭亦應將有關毒品的用途及其濫用的廣泛性一起考慮。" } }, { "doc_id": 5, "seg_id": 57, "translation": { "en": "The court certainly cannot lose sight of the fact that the maximum sentence for illegal trafficking in NNDMA is life imprisonment.", "zh-HK": "法庭當然不能忽視非法販運NN二甲基安非他明罪行的最高判刑是終身監禁。" } }, { "doc_id": 5, "seg_id": 58, "translation": { "en": "The available data show that NNDMA has no known medical use, and is rarely abused as a single substance but is often found in mixture with other drugs, including ‘Ecstasy’ and ‘Ice’, for the use of drug addicts. To stop the wide abuse of NNDMA can also stop the wide abuse of dangerous drugs like ‘Ecstasy’ and ‘Ice’.", "zh-HK": "有資料顯示NN二甲基安非他明沒有醫學用途，很少單獨使用，而多是和其他毒品，包括“忘我”，“冰”等一起混和後，供吸毒者使用。制止NN二甲基安非他明的氾濫亦能抑制“忘我”，“冰”等毒品氾濫。" } }, { "doc_id": 5, "seg_id": 59, "translation": { "en": "Even if there is no sign of serious abuse of NNDMA, the court still has the duty to nip the trafficking of such drugs in the bud. Where there are data showing serious abuse of NNDMA, the court should all the more deal with the situation by heavy sentences in the hope of deterring such type of crime from continuing to develop.", "zh-HK": "即使沒有跡象顯示濫用NN二甲基安非他明的情況嚴重，法庭亦有責任將販運該等毒品罪行制止於其萌芽狀態。假若有資料顯示濫用NN二甲基安非他明的情況嚴重，法庭更應以重刑對待，希望能阻嚇該類罪行的持續發展。" } }, { "doc_id": 5, "seg_id": 60, "translation": { "en": "Of course, it is necessary to strike an appropriate balance between the consideration of the above factors and the potency of NNDMA. Having considered all the factors, we are of the view that the starting point of sentence for the trafficking of NNDMA should be 60% of that for trafficking in the same quantity of ‘Ice’.", "zh-HK": "當然上述因素亦需和NN二甲基安非他明的毒性取得一些合適的平衡。經考慮過全部因素後，本庭認為販運NN二甲基安非他明的罪行量刑基準應該是販運同等份量“冰”毒的量刑基準的60%。" } }, { "doc_id": 5, "seg_id": 61, "translation": { "en": "On the basis of the above approach, the appropriate starting point of sentence for illegal trafficking of about 4,680 grammes of ‘Ice’ should be 25 years and that for illegal trafficking of about 4,680 grammes of NNDMA should then be 15 years.", "zh-HK": "以上述處理方法，非法販運約4,680克“冰”毒的適當量刑基準為25年而非法販運約4,680克NN二甲基安非他明的適當量刑基準則應為15年。" } }, { "doc_id": 5, "seg_id": 62, "translation": { "en": "The potency of NNDMA and that of ‘Ecstasy’ are alike. As said above, the median figure of the comparison between NNDMA and ‘Ice’ in terms of the stimulant effect is not far from the figure in respect of the comparison between ‘Ice’ and ‘Ecstasy’. And the lethal effect of NNDMA is even 5 times more than that of ‘Ecstasy’.", "zh-HK": "和“忘我”比較，NN二甲基安非他明的毒性相約。如上文所述，NN二甲基安非他明能導致的興奮作用和“冰”毒相比的中位數和“忘我”相差不遠，而其致命毒性更較“忘我”高逾五倍。" } }, { "doc_id": 5, "seg_id": 63, "translation": { "en": "According to HKSAR v Lee Tak-kwan [1998] HKLRD 46, the appropriate starting point of sentence for illegal trafficking of over 800 grammes of ‘Ecstasy’ is already 8 years upwards. If the quantity of ‘Ecstasy’ is 4,600 grammes, the appropriate starting point should not be below 15 years. In fact, the Court of Appeal held in HKSAR v Chui Chi-wai [2000] 1 HKLRD 704 that the starting point for trafficking in the region of 4,400 grammes of ‘Ecstasy’ should be 15 years. We cannot lose sight of the fact that the tariffs for sentence for illegal trafficking of ‘Ecstasy’ have been greatly increased by the Court of Appeal in June 2008. In Hii Siew-cheng, Wong Yat-san mentioned above, the Court of Appeal set the starting point for trafficking exceeding 1,000 grammes of ‘Ecstasy’ at 14 years upwards. If applying the starting point in Hii Siew-cheng, Wong Yat-san to the present case where the quantity is over 4,600 grammes, the appropriate starting point would certainly be exceeding 20 years.", "zh-HK": "根據HKSAR v Lee Tak Kwan [1998] HKLRD 46案，非法販運800克以上的“忘我”，適當的量刑基準已超過八年。假若“忘我”份量達4,600克，適當的量刑基準不應低於15年。事實上在HKSAR v Chui Chi Wai [2000] 1 HKLRD 704案，上訴法庭認為涉及約4,400克的“忘我”販毒罪行，量刑基準應為15年。本庭不能忽視非法販運“忘我”的罪行判刑，在2008年6月被上訴法庭大幅度提升。在上述許守城、黃日新案，上訴法庭將販運超過1,000克“忘我”的量刑基準定為超過14年。假若將許守城、黃日新案的量刑基準施用於本案，以超過4,600克而言，適當的量刑基準必然超過20年。" } }, { "doc_id": 5, "seg_id": 64, "translation": { "en": "As the offences in the present case were committed in March 2007 prior to the date of judgment of Hii Siew-cheng, Wong Yat-san, it might result in injustice to the two applicants in the instant case if the starting point of sentence in that case were to apply to them. We are of the view that, in taking the approach which is more favourable to the two applicants, the starting point for trafficking illegally in 4,680 grammes of NNDMA should be 15 years’ imprisonment instead of 18 years. As a result, the starting point of 18 years taken by the trial judge is manifestly excessive.", "zh-HK": "本案在2007年3月干犯，較許守城、黃日新案的判案日期為早，因此將該案的量刑基準施用於兩名申請人對他們可能構成不公。本庭認為以對兩名申請人較有利的處理方法，非法販運4,680克NN二甲基安非他明罪行應導致的量刑基準應為15年監禁而非18年，因此原審法官採納的18年屬明顯過重。" } }, { "doc_id": 5, "seg_id": 65, "translation": { "en": "But we must emphasize that should the situation of the abuse of NNDMA become more serious, the court may be required to increase the relevant starting point so as to reflect the resolve of the courts to combat the crime of drug trafficking.", "zh-HK": "但本庭須強調，假若濫用NN二甲基安非他明的情況惡化，法庭可能需要將有關量刑基準加重以反映法庭打擊販運毒品罪行的決心。" } }, { "doc_id": 5, "seg_id": 66, "translation": { "en": "We grant leave to the two applicants to appeal against sentence and, treating the applications as the appeal proper, we allow their appeals. On the first charge, the sentence of both applicants of 18 years is reduced to 15 years. The 6 months’ imprisonment imposed on Ngan for the second charge is also ordered to run concurrently with the 15 years imposed for the first charge.", "zh-HK": "本庭批准兩名申請人就判刑上訴。本庭視其申請為正式上訴，並判其上訴得直。就首項控罪，兩名申請人的刑期都由18年減至15年。就第二項控罪，顏家俊被判的6個月刑期亦和首項控罪的15年刑期同期執行。" } }, { "doc_id": 5, "seg_id": 67, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 5, "seg_id": 68, "translation": { "en": "We dismiss Tsui’s application for leave to appeal against conviction out of time but we grant leave to Ngan and Tsui to appeal against sentence and treat their applications as the appeal proper. We allow their appeals and substitute their sentences as set out above.", "zh-HK": "本庭駁回徐偉勝就定罪的逾期上訴許可申請，但批准顏家俊和徐偉勝就判刑的上訴許可申請，並視他們的申請為正式上訴。本庭裁定他們的上訴得直，並將他們的刑期改判如上。" } }, { "doc_id": 5, "seg_id": 69, "translation": { "en": "Mr. Robert S K Lee, SC, SADPP & Mr. Chiu Wai Tin, Senior Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員李紹強資深大 律師及高級檢控官趙偉天代表。" } }, { "doc_id": 5, "seg_id": 70, "translation": { "en": "Mr. Kan Ting To, instructed by Messrs. Foo & Li, assigned by the Director of Legal Aid, for the 1st Applicant (re sentence).", "zh-HK": "第一申請人（刑罰）：由法律援助署委派李鳳翔律師事務所轉聘大律師簡定濤代表。" } }, { "doc_id": 5, "seg_id": 71, "translation": { "en": "Mr. Andy Hung, instructed by Messrs. Lo, Wong & Tsui, assigned by the Director of Legal Aid, for the 2nd Applicant (re sentence).", "zh-HK": "第二申請人（刑罰）：由法律援助署委派盧王徐律師事務所轉聘大律師孔慶碩代表。" } }, { "doc_id": 5, "seg_id": 72, "translation": { "en": "The 2nd Applicant (re application for leave to appeal against conviction out of time) in person, present.", "zh-HK": "第二申請人（定罪逾期申請）：無律師代表，親自應訊。" } }, { "doc_id": 6, "seg_id": 1, "translation": { "en": "DECISION ON COSTS", "zh-HK": "訟費判決書" } }, { "doc_id": 6, "seg_id": 2, "translation": { "en": "Hon Pang JA (giving the Decision on Costs of the Court):", "zh-HK": "上訴法庭法官彭偉昌頒發上訴法庭訟費判決書：" } }, { "doc_id": 6, "seg_id": 3, "translation": { "en": "The 1st Appellant (A1) and her husband (A2) jointly faced a charge of “fraud”. They were convicted after trial and sentenced to imprisonment for 22 months and 25 months respectively. Both of them then appealed against their convictions. After the hearing, this Court dismissed A2’s appeal but allowed A1’s appeal quashing both her conviction and sentence.", "zh-HK": "第一上訴人（A1）及其丈夫（A2）共同面對一項‘欺詐’罪，經審訊後被定罪，分別處入獄22個月及25個月，二人繼而就定罪提出上訴。聆訊過後，本庭駁回A2的上訴，但裁定A1上訴得直，定罪與判刑一併取消。" } }, { "doc_id": 6, "seg_id": 4, "translation": { "en": "Overview of the case", "zh-HK": "案件概覽" } }, { "doc_id": 6, "seg_id": 5, "translation": { "en": "The facts of the present case and the reasons for allowing A1’s appeal can be seen in the judgment handed down by this Court on 19 November 2021. In short, the prosecution alleged that A1, a civil servant, in her application for housing allowance dishonestly made a false declaration that A2 had not been receiving any housing allowance from his employer. Based on the long term marriage between A1 and A2 for over 20 years and the reply received in response to the request made by the Treasury to A1 for documentary proof, the trial judge held that A1 knew of A2’s receipt of his housing allowance. However, this Court found the analysis of the trial judge unsafe, under which there was insufficient evidence to prove A1’s knowledge.", "zh-HK": "本案案情，以及A1上訴得直的理由，見本庭在2021年11月19日頒下的《判案書》。簡言之，控方指身為公務員的A1在申請房屋津貼時不誠實地虛假聲明A2沒有從他的僱主領取房津，原審法官則基於A1與A2二十多年的婚姻關係，以及庫務署要求A1提供文件證明時所得到的回覆，裁定A1知道A2在領取房津。然而，本庭認為原審法官的分析有欠穩妥，在他分析下的證據不足以證明A1知情。" } }, { "doc_id": 6, "seg_id": 6, "translation": { "en": "Application for costs", "zh-HK": "訟費申請" } }, { "doc_id": 6, "seg_id": 7, "translation": { "en": "A1 now applies for costs of the trial, the bail application and the appeal.", "zh-HK": "A1現申請包括原審、保釋申請、以及上訴的訟費。" } }, { "doc_id": 6, "seg_id": 8, "translation": { "en": "A1 submitted that according to the judgment of this Court, there was actually not sufficient evidence to prove her knowledge of A2’s conduct. The cautioned statement of A2 could even show that A1 had been deliberately kept in the dark. The fact that A1 elected not to give evidence and made no statement under caution was only an exercise of her right of silence, which did not amount to bringing suspicion on herself.", "zh-HK": "A1認為，根據本庭的裁決，案中實沒有足夠證據證明她對A2的行為知情。A2的警誡供詞甚至能顯示A1是被刻意蒙在鼓裡。A1不作供，沒有在警誡下作任何陳述，只是行使緘默權，不構成自招嫌疑。" } }, { "doc_id": 6, "seg_id": 9, "translation": { "en": "Respondent’s stance", "zh-HK": "答辯人立場" } }, { "doc_id": 6, "seg_id": 10, "translation": { "en": "The Respondent objected to the application for costs of the trial, for the reason that having twice been requested by the Treasury, in 2000 and 2017, to provide documentary confirmation by A2’s employer that A2 did not receive any housing allowance, A1 never explained why such document could not be provided but only indicated by her memo reply that there was difficulty in obtaining the same. She even challenged the Treasury by asking for the basis on which she was requested to produce such document (see exhibits P9 and P51). In the Respondent’s view, A1, being arrogant and uncooperative, had actually brought suspicion on herself.", "zh-HK": "答辯人反對原審訟費申請。理由是，庫務署分別於2000年及2017年兩度要求A1提供A2僱主確認A2沒有領取房津的文件，但A1卻從沒解釋為何不能提供，其回覆便箋只表示有困難獲取文件，並以反問形式質問庫務署向她索取文件的基礎（見證物P9及P51）。答辯人認為，A1既態度囂張，又不合作，實屬自招嫌疑。" } }, { "doc_id": 6, "seg_id": 11, "translation": { "en": "Taking one step back, the Respondent submitted that even if A1 were to be awarded the costs of the trial, given that the facts and points of law in the present case were not complicated, the main issues in dispute were factual, and the evidence involved was not complex, which could all be dealt with by one counsel, A1 should therefore be allowed the costs of only one of the counsel and that of the solicitors at the trial.", "zh-HK": "答辯人退一步陳詞，指即使A1可獲發原審訟費，但本案的案情和法律議題並不複雜，主要的爭議點均屬事實範疇，而且牽涉的證據也不繁雜，一名大律師當可勝任辦理，因此A1只應獲得原審其中一位大律師和事務律師的費用。" } }, { "doc_id": 6, "seg_id": 12, "translation": { "en": "The Respondent also did not object to A1 being awarded the costs of the bail application and the appeal, save that the costs should similarly be confined to only one counsel and the solicitors.", "zh-HK": "答辯人亦不反對A1獲發保釋申請及上訴的訟費，但同樣認為當中的費用，只應限於一名大律師和事務律師。" } }, { "doc_id": 6, "seg_id": 13, "translation": { "en": "Appellant’s counter-argument", "zh-HK": "上訴人反駁" } }, { "doc_id": 6, "seg_id": 14, "translation": { "en": "A1 argued against the above submissions of the Respondent, contending that two documents in 2000 (exhibits P9 and P10) both showed that the two sides had other communications in addition to written correspondence. P10 even directly pointed out that A1 had indicated that A2’s employer had refused to provide any documentary proof.", "zh-HK": "A1反駁答辯人以上的陳詞指，2000年的兩份文件（證物P9和P10），均顯示雙方有書面以外的溝通，P10更直接指出A1曾表示A2的僱主拒絕提供文件證明。" } }, { "doc_id": 6, "seg_id": 15, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 6, "seg_id": 16, "translation": { "en": "In general, unless there are positive reasons, an acquitted defendant should be entitled to the costs. The positive reasons include: the defendant’s own conduct which has brought suspicion on himself, that the defendant has misled the prosecution into thinking that the case against him is stronger than it really is, and that the defendant is acquitted on a technicality, etc (Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531, at page 535D-H). The conduct which can be taken into consideration is not limited to the defendant’s conduct during the investigation and at trial, but also include the conduct which forms part of the setting for the charges laid against him (Ting James Henry v HKSAR (No 2) (2007) 10 HKCFAR 730, para 16). Therefore, the communication between A1 and the Treasury regarding provision of documents could also be taken into account.", "zh-HK": "一般而言，除非有確實理由，一名被判無罪的被告應獲發訟費。確實理由包括：被告的行為自招嫌疑、誤導控方使其認為所擁有的證據比實際為強、以及被告是否因技術理由而獲判無罪等（Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531，第535頁D-H）。可考慮的行為不局限於被告被調查或審訊期間的行為，亦包括構成控罪背景的行為（Ting James Henry v HKSAR (No 2) (2007) 10 HKCFAR 730，第16段）。因此，A1與庫務署就提供文件而進行的溝通，可作考慮。" } }, { "doc_id": 6, "seg_id": 17, "translation": { "en": "This Court has referred to exhibits P9 and P10 at para 26 in our judgment. The relevant part shows that A1 has correctly countered the Respondent’s submissions:", "zh-HK": "本庭在本庭的《判案書》第26段提到證物P9和P10的內容。有關的內容顯示，對於答辯人的陳詞，A1的反駁是正確的：" } }, { "doc_id": 6, "seg_id": 18, "translation": { "en": "“… The first paragraph in P9 showed that before the two parties commenced their written communication, [A1] had talked over the phone with a staff of the Treasury. After receiving P9, the same staff of the Treasury expressed in the last paragraph at P10: ‘You advised that your spouse’s employer refused to provide you and your spouse with the requisite documentary evidence.’ …”", "zh-HK": "「… P9的第一段顯示，雙方在展開書面對話之前，[A1]曾和庫務署的職員通過電話。在收到P9之後，庫務署的同一位職員則在P10的最後一段表示：“You advised that your spouse’s employer refused to provide you and your spouse with the requisite documentary evidence。” …」" } }, { "doc_id": 6, "seg_id": 19, "translation": { "en": "However, the above explanation in relation to the refusal of A2’s employer to provide the proof was simply inconsistent with the facts. The employer not only did not refuse, but in fact issued a letter confirming the payment to A2 of a monthly sum as housing allowance without usage restriction (exhibit P106). The fact that A1 applied for the government housing allowance while A2 was enjoying private housing allowance, coupled with the explanation recorded in P10 which is inconsistent with the facts, obviously aroused suspicion.", "zh-HK": "然而，上述有關A2的僱主拒絕提供證明的解釋，根本與事實不符，因為該僱主不但沒有拒絕，而且還應要求發信確認每月向A2發放一筆沒有規定用途的房津（證物P106）。A1在A2正受惠於私人房津的同時照樣申請政府房津，再加上P10所紀錄並與事實根本不符的解釋，顯然引人懷疑。" } }, { "doc_id": 6, "seg_id": 20, "translation": { "en": "Although A1 might have been misled by A2 and hence applied for housing allowance and gave explanation which is inconsistent with the facts, it does not mean that such conduct did not amount to her bringing suspicion on herself. As it was said in HKSAR v Rahman Md Sheikh Mojibur [2020] HKCA 53, at para 26:", "zh-HK": "雖然A1可能是因為受到A2誤導而申領房津及作出不符事實的解釋，但這不等於其行為並非自招嫌疑。如HKSAR v Rahman Md Sheikh Mojibur [2020] HKCA 53 第26段所說：" } }, { "doc_id": 6, "seg_id": 21, "translation": { "en": "“… Whether or not the defendant brings suspicion on himself and/or results in the prosecution being misled does not logically depend on the defendant’s state of mind.”", "zh-HK": "“… Whether or not the defendant brings suspicion on himself and/or results in the prosecution being misled does not logically depend on the defendant’s state of mind.”" } }, { "doc_id": 6, "seg_id": 22, "translation": { "en": "Furthermore, A1 has given no explanation on the content of P10 and the charge before and during the trial. She did not explain, perhaps because she might not wish to make any accusations against her husband; however, this is not a good reason for her to be awarded the costs when she has brought suspicion on herself. As in Rahman Md Sheikh Mojibur, at para 26:", "zh-HK": "進一步說，A1在審訊前和審訊期間均沒有就P10的內容和控罪作出解釋。A1不解釋，或許是因為不想對丈夫作出指控，但在自己的行為引起懷疑下，這並非應該獲發還訟費的理由，就如Rahman Md Sheikh Mojibur 案第26段另有所述：" } }, { "doc_id": 6, "seg_id": 23, "translation": { "en": "“… we should deal with Mr Chan’s argument that there may have been a good reason for the applicant not to disclose his mobile telephone business dealings ... The notion that a defendant may properly make a claim for reimbursement from public funds despite not disclosing that he had been cheating the Inland Revenue Department does not sound a very equitable one, even in a criminal context where the scales are necessarily tilted in favour of the defence …”", "zh-HK": "“… we should deal with Mr Chan’s argument that there may have been a good reason for the applicant not to disclose his mobile telephone business dealings ... The notion that a defendant may properly make a claim for reimbursement from public funds despite not disclosing that he had been cheating the Inland Revenue Department does not sound a very equitable one, even in a criminal context where the scales are necessarily tilted in favour of the defence …”" } }, { "doc_id": 6, "seg_id": 24, "translation": { "en": "We agree that A1 has brought suspicion on herself and should not be awarded the costs of the trial.", "zh-HK": "本庭同意A1是自招嫌疑，不應獲發原審訟費。" } }, { "doc_id": 6, "seg_id": 25, "translation": { "en": "The Respondent does not object to A1 being awarded the costs of the bail application and the appeal, save that the counsel’s fees should be confined to that of only one counsel. This appeal involves whether, from the many years of marriage of the two appellants and the content of A1’s memo reply to the Treasury regarding the provision of documents, it could be inferred that A1 had knowledge of her husband’s receipt of housing allowance. The disputes in the case are not particularly easy to deal with, and this Court has eventually found the trial judge’s analysis unsafe. Therefore, it is not unreasonable for A1 to have engaged two counsel, including one senior counsel, to deal with the appeal.", "zh-HK": "答辯人不反對A1獲發保釋申請及上訴訟費，但認為大律師費用應限於一名大律師。本上訴涉及可否從兩名上訴人多年的婚姻關係，以及A1就提供文件而以便箋回覆庫務署的內容，推斷她對丈夫領取房屋津貼的事知情，箇中的爭議並不特別容易處理，而且本庭最終也認為原審法官的分析有欠穩妥。因此，A1聘用兩名大律師處理上訴，其中一名為資深大律師，並非不合理。" } }, { "doc_id": 6, "seg_id": 26, "translation": { "en": "Decision", "zh-HK": "判決" } }, { "doc_id": 6, "seg_id": 27, "translation": { "en": "This Court rejects A1’s application for costs of the trial, but orders that she be entitled to the costs of the bail application and of the appeal, including the fees of two counsel, with such costs to be taxed by a master if not agreed.", "zh-HK": "本庭拒絕A1原審訟費的申請，但下令她可獲發保釋申請以及上訴的訟費，包括兩名大律師的費用，金額由雙方自行同意，否則交由聆案官評定。" } }, { "doc_id": 6, "seg_id": 28, "translation": { "en": "Mr Eric Wan, instructed by Louie Chan & Co., for the 1st Appellant", "zh-HK": "第一上訴人：由陳漢光律師事務所轉聘溫家榮大律師代表" } }, { "doc_id": 6, "seg_id": 29, "translation": { "en": "Miss Peggy Leung, Senior Public Prosecutor, of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級檢控官梁寶琦女士代表" } }, { "doc_id": 7, "seg_id": 1, "translation": { "en": "Hon Pang JA (giving the Reasons for Judgment of the Court):", "zh-HK": "上訴法庭法官梁紹中宣讀上訴法庭判案書:" } }, { "doc_id": 7, "seg_id": 2, "translation": { "en": "This is an appeal from the Court of First Instance of the High Court. The applicant was convicted after trial of one count of trafficking in dangerous drugs involving 1,008 grammes of a crystalline solid containing 997 grammes of ICE, 95 tablets containing 1.38 grammes of methamphetamine and 3.31 grammes of herbal cannabis. He was sentenced to 22 years’ imprisonment by the trial judge (Deputy High Court Judge D Yau). He applied for leave to appeal against conviction.", "zh-HK": "上訴許可申請人曾震宇於本年1月4日在高等法院原訟法庭承認兩項強姦罪名，即控訴書上的第一項和第十項控罪。申請人原本是被控十項強姦罪名。高等法院原訟法庭彭鍵基法官判申請人每罪入獄8年，同期執行，即共入獄8年。申請人現申請上訴許可，要求減刑。" } }, { "doc_id": 7, "seg_id": 3, "translation": { "en": "The Facts", "zh-HK": "根據申請人承認的事實，他犯案的經過是這樣：" } }, { "doc_id": 7, "seg_id": 4, "translation": { "en": "The detailed facts of this case are of little significance. Broadly speaking, on the night of 7 August 2015, the applicant returned to Hong Kong from the Mainland, and at Lo Wu Control Point, Customs officers found in his underpants and his sling bag the dangerous drugs in question. Under caution, he admitted that he delivered ICE for others for a reward of $500, and that he would telephone a person called “Wong Sam” upon his return to Hong Kong. On the night of 8 August of the same year, the applicant made further admissions under caution.", "zh-HK": "本案的受害人是一名14歲的女童，她和母親及申請人同住於屯門山景邨一單位，申請人是女童母親的男朋女，女童視申請人為長輩。1998年7月某日早上，女童的母親已上了班，但女童還未起床，因為當時正是學校暑假。申請人趁女童的母親不在家，叫女童到他的床上與他同睡，女童依吩咐上申請人床上跟申請人同睡。期間，申請人先撫摸她的胸部並且告訴她，這是申請人與她母親同睡時的習慣。後來申請人叫女童和他性交，但遭女童拒絕。於是申請人要女童脫去衣服，隨後，申請人在女童不願意的情況下，強行與女童發生了性關係。" } }, { "doc_id": 7, "seg_id": 5, "translation": { "en": "Prosecution and defence cases", "zh-HK": "到1998年10月間的一個早上，申請人叫女童到他的房間，在那裡，申請人在未經女童同意及知道她不會同意的情況下，與女童發生性關係。女童事後離家出走。後來被警方尋回。申請人向她承諾不會再侵犯她，叫她不要將事情告訴別人。女童沒有向她母親投訴，只是與同學提及這事。同學將這事告訴學校的社工。社工知悉後，報警將申請人拘捕。申請人在警誡供詞中承認強姦女童。" } }, { "doc_id": 7, "seg_id": 6, "translation": { "en": "The prosecution submitted that the applicant brought dangerous drugs into Hong Kong without lawful authority. Such an act constituted trafficking. His admission that he would be handing over the dangerous drugs to others made this more so. The mentioning of ICE, in particular, in his cautioned statement, proved that he knew he was conveying dangerous drugs.", "zh-HK": "法官判刑時指申請人在女童家中的身分形同女童的長輩，以長輩強姦後輩實屬可恥。法官對強姦案的判刑有以下的解說：" } }, { "doc_id": 7, "seg_id": 7, "translation": { "en": "The applicant testified that he thought he was “travelling with parallel goods” or “carrying electronic parts across checkpoints” for Wong Sam, and he would return the stuff to that man upon his return to Hong Kong. He testified that when being searched, he only said, “Got busted this time”, but he never mentioned carrying ICE for others for a reward. Conversely, he claimed that he had asked the Customs officer what had been found and the latter answered, “It might be ICE”.", "zh-HK": "『強姦嘅案件 ─ 尤其是強姦兒童嘅案件係非常嚴重嘅案件，法庭喺宣判呢一類型嘅案件係絕不會姑息、手軟。本席考慮到呢一件案件嘅背景同埋特殊嘅情況，就將起點定為8年。但係亦都考慮到你喺呢段時間（3個月裡面）係多次強姦呢位女孩，同埋亦都係以長輩身分欺騙呢個女童話只此一次，當然，事實上發生之後唔係，仲有好多次添。對呢個女童嘅打擊不言而喻，因為經過你嘅侵犯之後，佢亦都曾經離家出走。" } }, { "doc_id": 7, "seg_id": 8, "translation": { "en": "The applicant went on to explain in court that Wong Sam and he were parallel goods traders. They had known each other for some time. He, on this occasion, at the request of Wong Sam, went to meet with the latter in Shenzhen. During this time, Wong Sam made him drink a canned drink. After that, the applicant became confused and felt someone tying something underneath his underpants. In confusion, he was then taken to the entrance of the checkpoint and was told to take the sling bag in question to Hong Kong.", "zh-HK": "至於你話你個女朋友喺信方面原諒你，呢個本席亦都完全唔考慮，點解呢？因為受害人係佢個女，唔係佢個媽媽，你寫信畀受害人要求佢原諒只不過本席睇嚟係一個事後方面作出嘅補救，於事無補。" } }, { "doc_id": 7, "seg_id": 9, "translation": { "en": "The applicant said that he did unzip the sling bag to take a look but only saw melon seeds for human consumption. He had put his hand over his underpants briefly but felt nothing different from the usual electronic parts. As regards his admissions under further caution (in the video-recorded interview) and all the details relating to the actual smuggling of ICE, they were fabricated by the Customs officer(s) and forced on him by various improper means. In any case, he was still confused then and did not recover until two days later in Lai Chi Kok Reception Centre.", "zh-HK": "有鑑於本案存在咗一啲特殊嘅因素，本席將起點由8年增加至12年。" } }, { "doc_id": 7, "seg_id": 10, "translation": { "en": "Course of the trial", "zh-HK": "至於你大律師指出你深感後悔，同埋亦都係坦白承認控罪，本席當然需要畀你一個折扣，而呢個折扣就係一個三分一嘅折扣。除此之外，本席睇唔到有其他嘅求情因素或者有其他因素需要令本席再將刑罰遞減，本席就宣判你係需要入獄8年。』" } }, { "doc_id": 7, "seg_id": 11, "translation": { "en": "Given the simple facts of this case, though the prosecution called eight prosecution witnesses (who were all Customs officers) and the applicant elected to give evidence, the entire course of the trial proper (from empanelment of the jury to the completion of the trial judge’s summing-up) only lasted for about two and a half days (from 10 am on 14 December to 11:30 am on 16 December 2016).", "zh-HK": "上訴理由是：" } }, { "doc_id": 7, "seg_id": 12, "translation": { "en": "As for the jury, they did not reach a verdict the day they retired. They retired at 11:34 am on 16 December 2016 (Friday) and stopped at 8:03 pm the same day; they resumed deliberation at 9:38 am on 17 December (Saturday) and returned a guilty verdict against the applicant at 12:19 pm the same day. The guilty verdict was by a majority of five to two.", "zh-HK": "12年作為量刑的起點實屬過高；" } }, { "doc_id": 7, "seg_id": 13, "translation": { "en": "Ground of appeal", "zh-HK": "法官採納8年為起點時已將本案的背景和特殊情況列入考慮之內，所以沒有其他特殊理由，可以使他把起點增加至12年。而且法官將起點遞增兩次，因此犯了雙重增加量刑起點的錯誤。" } }, { "doc_id": 7, "seg_id": 14, "translation": { "en": "9.Mr Ng, who acted for the applicant in the trial, only put forward one ground of appeal which reads:", "zh-HK": "法官不是按申請人所承認的兩項控罪量刑，而是按他被控的罪名數目量刑，因此法官犯錯。" } }, { "doc_id": 7, "seg_id": 15, "translation": { "en": "“The applicant seeking leave to appeal was found guilty of one charge of trafficking in dangerous drugs by the jury who reached a majority verdict of five to two. The jury took a long time to deliberate. The trial judge did not enquire of the jury at an appropriate time as to any prospect of their reaching any verdict, nor did he remind them to inform the judge if they failed to reach a verdict. In all the circumstances, the trial judge did not exercise his discretion appropriately to inform the jury of the time control of the court and that they were not to deliberate indefinitely until a verdict was returned. There was a real risk that the conviction was reached by the jury being put under pressure of time.", "zh-HK": "法官認為受害人的年齡是13歲而她的真實年齡是14歲半，法官採納12年為刑期起點是受他錯誤認為受害人的年齡是13歲所影響。" } }, { "doc_id": 7, "seg_id": 16, "translation": { "en": "10.Mr Ng contended that in this case, the evidence took a total of eight and a half hours, and the prosecution and defence’s closing submissions and the trial judge’s summing-up another three hours. Minus the time for meals and rest at night, the jury still spent about ten hours in deliberating their verdict and finally only brought in a barely sufficient result of five to two. Therefore, they must have encountered difficulties in the course of their discussions. Nevertheless, the trial judge did not provide them with prompt and/or appropriate assistance or guidance.", "zh-HK": "代表申請人的王大律陳詞稱香港法庭就強姦案的判刑一向以來都是跟隨女皇訴比林（1）（譯音）一案的指引。王律師引用多個案例支持他的說法。指出跟據比林案例就強姦案一般刑期起點的指引，以本案情況而言，12年的刑期起點實在是太高。" } }, { "doc_id": 7, "seg_id": 17, "translation": { "en": "11.For instance, as Lord Lane CJ said in R v Rose [1982] 1 WLR 614, 620 (which the Court of Appeal of the United Kingdom quoted in R v Payne [2001] EWCA Crim 274), depending on the circumstances of the case and the time spent in discussions, the judge should re-assemble the court in due course to make enquiry of the jury as to whether there is any chance of their reaching an agreement in considering whether it is necessary to discharge the jury or to ask them to continue with their discussions on the case. Nevertheless, the trial judge in the present case did not do so.", "zh-HK": "王律師引用的判例有女皇訴張銘廉（2）（譯音）、女皇訴廖炳堅（3）（譯音）和香港特別行政區訴王光益（4）（譯音）等案。" } }, { "doc_id": 7, "seg_id": 18, "translation": { "en": "12.The Court of Appeal in the United Kingdom expressed the view in Payne that without making the aforesaid enquiry, the jury might have mistakenly thought that they were left to discuss the case indefinitely and felt under pressure which they ought not to have. Also, in the opinion of Mr Ng, this was more than likely to have happened in the present case.", "zh-HK": "本庭認為即使根據比林一案所定出的刑期指引，本案的情況當中，亦有許多可以加重刑罰的因素。該案定出如果無加重刑罰因素存在，一般強姦案的刑期是5年。如果犯案者對受害人負有責任的話，例如是受害人的監護人，起點是8年。如果有其他的因素，例如在強姦過程中使用暴力對待受害人，或多次重覆強姦受害人；或強姦是經過週詳計劃才實行；或受害人年幼或是年紀很大的；刑期的起點應該是高於8年。" } }, { "doc_id": 7, "seg_id": 19, "translation": { "en": "13.Mr Ng further contended that the Court of Appeal in the United Kingdom pointed out in R v Court [1995] Crim LR 310 that as a matter of general observation, the judge should keep the jury informed about the timetable and possible implications of the procedures. This principle applies when the jury’s verdict is pending and the judge should intervene in due course.", "zh-HK": "本庭要指出王大律師引用的張銘廉一案，並無裁定比林一案的刑期指引，是法庭判罰強姦犯時，必須遵從的指引。麥道高法官於該案只認為比林所定出的強姦刑期指引是可以幫助香港法庭决定如何就強姦案量刑。廖炳堅一案亦是王大律師引用案例之一。上訴庭在該案認為在未有其他因素証明比林一案的指引有需要改變，比林一案設立的強姦罪的一般刑期起點仍然需要維持。王光益一案則沒有討論一般強姦罪的刑期是否應該繼續跟隨比林一案所定下的。王光益一案的裁决是以該案的情況，3年半的刑期是明顯的過低，而適當的刑期應為5年。" } }, { "doc_id": 7, "seg_id": 20, "translation": { "en": "14.Taking Lincoln De Four v The State [1999] 1 WLR 1731 (PC) as another example, Mr Ng contended that the jury should be explicitly told that in the event of an irreconcilable disagreement over the case, it was their duty to inform the court of it .", "zh-HK": "本庭於4月7日裁决的律政司司長訴沙曼打星（5）（譯音）一案中，就比林一案的刑期指引，亦有評述。本庭提出雖然比林一案可以提供一些幫助，但該案指引建議的5年起點，不一定適用於香港。在某些個案的特殊情況下，法庭會認為一個較高的刑期起點是適當的量刑。因此，本庭認為彭法官在量刑時是不須要跟隨比林一案所定下的刑期指引。" } }, { "doc_id": 7, "seg_id": 21, "translation": { "en": "15.Finally, by citing a case of the Court of Appeal of Hong Kong R v Tam Chi Pang [1986] HKLR 1122, Mr Ng contended that the long period of retirement of the jury is clearly not, of itself, a ground for upsetting a conviction, though there clearly must come a time when this by itself may be sufficient.", "zh-HK": "本庭認為在量刑時有兩點事實可能引致原審法官錯誤地把刑期起點增至12年。第一點是原審法官，可能錯誤認為申請人雖然承認兩項強姦罪名，但事實上曾多次同樣侵犯受害人。因此，以此為他增加刑罰的考慮。第二點是原審法官可能受他認為受害人的年齡是13歲而不是14歲半的影響，以此為增加刑罰的基礎。因此，可能導致原審法官，由8年增加至12年。本庭認為受害人的年齡對刑罰之輕重有直接的影響，如果受害人是13歲，刑期必然是較受害人是14歲半重。" } }, { "doc_id": 7, "seg_id": 22, "translation": { "en": "16.To conclude, Mr Ng submitted that the indifference of the trial judge in the present case left the jury, who were not able to return a valid verdict after long deliberations, unsure of what to do, rendering their verdict of five to two, which was not reached until the following day, unsafe and unsatisfactory.", "zh-HK": "以本案的情況整體而言，本庭認為12年的起點是明顯的過重，而適當的刑期應為10年，在達至該結論，本庭亦有考慮沙曼打星一案的刑期。考慮到申請人認罪，因此，可獲得三分一的減刑，所以本庭認為申請人應服的刑期是6年8個月。基於以上原因，本庭批准上訴許可申請。以本申請作為上訴的聆訊接納上訴，將刑期由8年減為6年8個月。" } }, { "doc_id": 7, "seg_id": 23, "translation": { "en": "Discussion", "zh-HK": "答辯人：由羅君偉署理副首席政府律師代表" } }, { "doc_id": 7, "seg_id": 24, "translation": { "en": "17.The authorities cited by Mr Ng are of no material assistance to the applicant.", "zh-HK": "上訴許可申請人：由法律援助署委派王熙曜大律師代表" } }, { "doc_id": 8, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案書：" } }, { "doc_id": 8, "seg_id": 2, "translation": { "en": "The applicant was charged with five counts of “dealing with property known or believed to represent proceeds of an indictable offence”, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance (Cap 445) (the Ordinance). After trial before District Judge Yiu, the applicant was convicted as charged and sentenced to 4 years’ imprisonment. The applicant seeks leave to appeal the convictions.", "zh-HK": "申請人被控五項「處理已知道或相信為代表從可公訴罪行的得益的財產」罪，違反《有組織及嚴重罪行條例》(《條例》)(香港法例第 455 章)第 25(1) 及 (3) 條。案件經區域法院法官姚勳智審理後，申請人被裁定罪名成立及被判四年監禁。申請人就定罪提出上訴許可申請。" } }, { "doc_id": 8, "seg_id": 3, "translation": { "en": "Charges", "zh-HK": "控罪" } }, { "doc_id": 8, "seg_id": 4, "translation": { "en": "The particulars of Charge 1 were that between a day unknown and 31 March 2005, the applicant dealt with a total sum of HK$28,000,000.00 in Hong Kong. The particulars of the other four charges were that the applicant dealt with the following property in Hong Kong:", "zh-HK": "第一項控罪的詳情指申請人於某日至 2005 年 3 月 31 日在香港處理HK$28,000,000.00的款項。另外四項控罪詳情指申請人處理以下的財產:" } }, { "doc_id": 8, "seg_id": 5, "translation": { "en": "1)\tCharge 2: Between 8 January 2001 and 21 February 2005, the applicant dealt with a total sum of HK$80,186,458.51 in her savings account with Hang Seng Bank. [123 deposits totalling HK$41,955,881.21 and 84 withdrawals totalling HK$38,230,577.30.]", "zh-HK": "第二項控罪：2001 年 1 月 8 日至 2005 年 2 月 21 日處理其「恒生銀行」儲蓄戶口共 HK$80,186,458.51。[123 次存款共HK$41,955,881.21及 84 次提款共HK$38,230,577.30。]" } }, { "doc_id": 8, "seg_id": 6, "translation": { "en": "第三項控罪：2001 年 1 月 8 日至 2005 年 2 月 21 日處理其「恒生銀行」支票戶口共HK$17,036,645.92。[27 次存款共HK$8,595,828.00 及 19 次提款共HK$8,440,817.92。]\t2)\tCharge 3: Between 8 January 2001 and 21 February 2005, the applicant dealt with a total sum of HK$17,036,645.92 in her current account with Hang Seng Bank. [27 deposits totalling HK$8,595,828.00 and 19 withdrawals totalling HK$8,440,817.92.]", "zh-HK": "2)" } }, { "doc_id": 8, "seg_id": 7, "translation": { "en": "第四項控罪：申請人在 2003 年 4 月 9 日至 2004 年 11 月 8 日期間處理其「渣打銀行」戶口共HK$750,000.00。\t3)\tCharge 4: Between 9 April 2003 and 8 November 2004, the applicant dealt with a total of HK$750,000.00 in her account with the Standard Chartered Bank.", "zh-HK": "3)" } }, { "doc_id": 8, "seg_id": 8, "translation": { "en": "第五項控罪：申請人在 2004 年 6 月 23 日至 2004 年 9 月期間處理其「中國銀行」戶口共RMB¥349,900.00。\t4)\tCharge 5: Between 23 June and September 2004, the applicant dealt with a total of RMB¥349,900.00 in her account with the Bank of China.", "zh-HK": "4)" } }, { "doc_id": 8, "seg_id": 9, "translation": { "en": "Facts", "zh-HK": "案情" } }, { "doc_id": 8, "seg_id": 10, "translation": { "en": "As the facts of the case revealed, in March 2005 the police broke open and entered the applicant’s residence and found three keys in a jewellery box: two being keys to safe deposit boxes at Hang Seng Bank and the third one being the key to a safe inside the applicant’s residence (“safe-key”). The police opened the safe with the safe-key and found cash in the amount of HK$11,000,000.00 inside. Also found from this safe were two keys, being keys to the safe deposit boxes of the Bank of America and Hang Seng Bank respectively. These two safe deposit boxes belonged to the applicant’s cohabitee Mr Chan Thao Phoumy. The police opened these two safe deposit boxes with the two keys and found therefrom cash in the sums of HK$9,800,000.00 and HK$7,200,000.00 respectively. These three sums of money constituted the money referred to in Charge 1.", "zh-HK": "案情顯示警方於 2005 年 3 月破門進入申請人的居所，在一個手飾箱內發現三條鎖匙：兩條為「恒生銀行」保險箱鎖匙，另外一條為申請人居所夾萬的鎖匙(‘夾萬鎖匙’)。警員用夾萬鎖匙打開有關夾萬，發現內有 HK$11,000,000.00 現金。另外，在夾萬內發現兩條分別是「美國銀行」及「恒生銀行」保險箱的鎖匙。這兩個保險箱是屬於申請人同居男友陳森(Chan Thao Phoumy)。警員用該兩條鎖匙開這兩個保險箱，在內分別發現 HK$9,800,000.00 及 HK$7,200,000.00 的現金。這三筆款項構成第一項控罪所指的款項。" } }, { "doc_id": 8, "seg_id": 11, "translation": { "en": "According to the agreed facts, the applicant and Chan Thao have a daughter. The applicant purchased the following 11 properties in Hong Kong between 2001 and 2005:", "zh-HK": "同意案情顯示申請人與陳森育有一名女兒。申請人於2001 年至 2005 年間在香港購買以下十一個物業：" } }, { "doc_id": 8, "seg_id": 12, "translation": { "en": "2001 年 10 月申請人購買位於九龍又一村的居所，價值約 HK$4,000,000。\t(1)\tIn October 2001, the applicant purchased the residence in Yau Yat Chuen, valued at about HK$4,000,000.", "zh-HK": "(1)" } }, { "doc_id": 8, "seg_id": 13, "translation": { "en": "2004 年申請人購買君逸山的兩個單位價值分別為約HK$3,000,000。\t(2)\tIn 2004, the applicant purchased two units of Carmel-on-the-Hill, each valued at about HK$3,000,000.", "zh-HK": "(2)" } }, { "doc_id": 8, "seg_id": 14, "translation": { "en": "2004 年 10 月期間申請人一次同時購買八個位於九龍深盛道「碧海藍天」的單位，價值約 HK$29,000,000。\t(3)\tIn October 2004, the applicant purchased eight units of AquaMarine situated in Sham Shing Road, Kowloon in one go, the total value of which was about HK$29,000,000.", "zh-HK": "(3)" } }, { "doc_id": 8, "seg_id": 15, "translation": { "en": "The applicant’s defence", "zh-HK": "申請人的答辯" } }, { "doc_id": 8, "seg_id": 16, "translation": { "en": "5.\tThe applicant did not dispute the fact that cash in the sum of HK$11,000,000 was found from her safe, but alleged that she did not know what were inside Chan Thao’s safe deposit boxes. She admitted that her safe could only be opened by using both the key and a combination, and that only she knew the combination and Chan Thao did not. The two safe deposit boxes in Chan Thao’s name could only be used by him, and he had not authorised anyone to use them on his behalf.", "zh-HK": "申請人不爭議在她的夾萬中搜出 HK$11,000,000 現金，但她指不知道陳森保險箱內放有甚麼東西。申請人承認她的夾萬是要一併用鎖匙及密碼來開啟的，只有她才知道密碼，陳森是不知道的。陳森名下的兩個保險箱只有他才能使用，他沒有委任其他人士代理使用。" } }, { "doc_id": 8, "seg_id": 17, "translation": { "en": "6.\tThe applicant elected to give evidence. Judge Yiu recounted her evidence as follows:", "zh-HK": "申請人選擇作供。姚法官敘述她的證供如下：" } }, { "doc_id": 8, "seg_id": 18, "translation": { "en": "被告選擇作供，她詳細地講述她的收入來源，主要包括過去 20 多年來從事按摩及提供性服務得來的積蓄，共20,000,000餘元現金，以及經黃靜俊投資內地房地產的得益，她亦呈上Dl 及D2文件夾的文件以作支持。此外，她亦表明不知道陳森保險箱中有那些大量的現金。\t“14.\tThe defendant elected to give evidence. She described in detail the sources of her income, which mainly included the savings she obtained by providing massage and sex services over the past 20 years or so, totalling $20,000,000 odd in cash, and the proceeds of real estate investment on the Mainland through Huang Jingjun. She also produced the documents in bundles D1 and D2 to support what she said. Moreover, she stated clearly that she had no idea of the existence of those large amounts of cash in Chan Thao’s safe deposit boxes.", "zh-HK": "「14." } }, { "doc_id": 8, "seg_id": 19, "translation": { "en": "被告現年48歲，並無任何刑事定罪紀錄。她與陳森是同居男女關係，雙方育有一女兒，現年12歲。被告講述於1982年來港後，當時曾任職售貨員，至1983年起經同事介紹下，在旺角從事按摩行業，與公司拆賬。後來再經公關介紹下，自行直接向不同客人提供按摩及性服務，收入因此增加。1983年起，她每月可賺30,000餘元。客人也有餽贈禮物如手錶、金飾、金器予她，她也有將物品變賣，取回金錢。她在D1第1、2頁中自行列出從1983年至2003年因提供按摩及性服務經扣減所有開支後，她所能儲存下來的金額。她也指自己消費不多，因此能儲存下大量現金，如她所指稱，1983至1990年她已能儲存下共6,000,000餘元，1991至1997年共儲存14,000,000餘元，1998至2003年亦儲存2,600,000餘元，總計從1983至2003年，被告合共儲存現金為23,000,000餘元。她也講述在1995至1996年間經濟環境好，她更可每月儲存20多萬元，後來到1998年女兒出生，入息才少了，她也會選擇客人來作服務等等。\t15.\tThe defendant is now aged 48 and has a clear record. She and Chan Thao are cohabitees, and they have a 12-year-old daughter. The defendant said that she came to Hong Kong in 1982 and worked as a salesgirl. In 1983, upon referral by colleagues, she engaged in the provision of massage service in Mongkok, sharing profits with the company which engaged her. Subsequently, through further introduction of hostesses, she directly provided massage and sex services to customers, thereby generating more income. Since 1983, she has been able to earn $30,000 odd per month. She also received from customers gifts such as watches, golden jewellery and golden ornaments, which she then sold in exchange for money. Pages 1 and 2 in D1 show a list that she has prepared, setting out the amounts of savings that she had been able to make, after deducting all expenses, by providing massage and sex services between 1983 and 2003. She also said that she did not spend much and was therefore able to save up a lot of cash. As she has said, she managed to save up $6,000,000 odd in total between 1983 and 1990, $14,000,000 odd in total between 1991 and 1997, and also $2,600,000 odd between 1998 and 2003, making a total saving of $23,000,000 odd in cash between 1983 and 2003. She also said that when the economy was good in 1995 and 1996, she could even save up $200,000 odd per month. It was only after the subsequent birth of her daughter in 1998 that her income decreased, and she also picked and chose customers, and so on.", "zh-HK": "15." } }, { "doc_id": 8, "seg_id": 20, "translation": { "en": "\t除上述收益外，她講述自1995年開始，亦經友人黃靜俊開始投資內地房地產，她指黃靜俊在內地認識大地產商，可內部認購單位。至於陳森，原本是她按摩的客人，約在1993年起左右發展為親密關係。他也有與黃靜俊一起投資內地房地產生意，陳森也有做紅酒及法國時裝生意等等。\t16.\tApart from the above earnings, she also said that in 1995, she started to invest in Mainland real estate through her friend Huang Jingjun. She said that Huang knew major property developers on the Mainland and could acquire properties through internal presales. Chan Thao was initially her massage customer and they had developed an intimate relationship since around 1993. He also invested, together with Huang, in Mainland real estate. Chan also engaged in businesses such as red wine and French fashion.", "zh-HK": "16." } }, { "doc_id": 8, "seg_id": 21, "translation": { "en": "被告講述在她夾萬中搜獲的現金11,000,000餘元，她指就是因提供性服務以及內地投資房地產所賺回來的，並非任何犯罪得益。她不想放在銀行，才放在家中。她多年來沒有報稅，因為她認為這些客人的打賞應不用報稅，內地房地產的收入亦毋須在港報稅等。至於夾萬中發現兩條陳森的保險箱鎖匙，她說並不知情，更不知道陳森的保險箱內有甚麼，但這夾萬則只有她自己知道密碼，陳森並不知道。\t17.\tThe defendant said that the cash of $11,000,000 odd found in her safe was money earned by providing sex services and from investments in Mainland real estate and was not proceeds of any crime. She kept the money at home because she did not want to put it in banks. Throughout all these years, she had never filed any tax return because she thought that the money was tips awarded by customers and should therefore not be taxable, and that the earnings from Mainland real estate were also not taxable in Hong Kong. As to the other items found from her safe, namely two keys to Chan Thao’s safe deposit boxes, she said that she knew nothing about it and she had no idea what was inside Chan Thao’s safe deposit boxes, but only she knew the combination of this safe and Chan Tao did not.", "zh-HK": "17." } }, { "doc_id": 8, "seg_id": 22, "translation": { "en": "就內地房地產的投資，她提供D1第3至73頁的文件顯示內地天河體育西路以及上海西郊的物業買賣文件，當中顯示陳森為買方。至於D1第74頁，則是黃靜俊曾提供的銀行戶口文件，黃曾著被告可入數到此戶口，她也相信黃是正當商人。除此之外，被告知道黃靜俊的生意拍檔包括梁美娟，該梁美娟擁有物業及是公司董事(D1第76至106頁)。據黃靜俊所述，梁美娟的姊妹是梁紫娟，該梁紫娟也曾被黃靜俊指示存款到被告人的戶口中（D1第107至112頁)。\t18.\tIn respect of the investments in Mainland real estate, she has set out in pages 3 to 73 in D1 the sale and purchase documents relating to real properties in Tiyu West Road in Tianhe District and in the countryside to the west of Shanghai. Those documents showed that the purchaser was Chan Thao. Page 74 in D1 is a document relating to a bank account provided by Huang Jingjun. Huang had told the defendant that money could be deposited into this account and she believed that Huang was a legitimate businessman. Apart from this, the defendant knew that one of the business partners of Huang was Leung May Qu, who was a property owner and a company director (pages 76 to 106 in D1). According to Huang, Leung May Qu’s sister was Leung Chi Kun, who had also been instructed by Huang to deposit money into the defendant’s accounts (pages 107 to 112 in D1).", "zh-HK": "18." } }, { "doc_id": 8, "seg_id": 23, "translation": { "en": "就有關內地房地產的投資模式，被告指出她也按黃靜俊的指示，把各客人的投資集合到她的銀行戶口，然後也會轉到黃靜俊指定的戶口中。她也相信這些是正當的金錢，因為黃靜俊是正當的生意人。\t19.\tIn relation to the mode of investing in Mainland real estate, the defendant said that she had, also acting on Huang Jingjun’s instructions, gathered customers’ investments to her bank account and then transferred the money to bank accounts designated by Huang. She also believed that the money was legitimate because Huang was a legitimate businessman.", "zh-HK": "19." } }, { "doc_id": 8, "seg_id": 24, "translation": { "en": "就第二項控罪相關的恒生銀行儲蓄戶口之各項入賬及支賬，她在D1文件第113至119頁中詳列各項收支賬的源由，包括「服務費」為按摩及性服務的現金存款，「客人投資」則指黃靜俊指示客人存入她的戶口中作內地投資，「收回投資回報」則指黃靜俊內地投資有盈利而存到她的戶口中，但有部分她也會按指示，轉賬這些回報到其他客人或黃靜俊其他的生意夥伴戶口內，以作生意的對數。被告指這些模式黃靜俊指可減省他把金錢來回轉賬的次數及手續。被告相信黃靜俊是正當生意人，因此也按指示處理。此外，這些收支的轉賬中亦包括其他開支，如收到朋友以往借貸的還款、兌換美元用作賀禮、其他戶口定期到期的轉賬、陳森還款的金額等等，但也有先代黃靜俊先支出予客人，然後由客人再存入戶口作償還等。此外，被告也把客人出資投資內地房地產所存入及支出的款項列出(見Dl第119(a)至(f)頁)，累計分別約為各2,300,000餘元。\t20.\tAs to the credits and debits of the Hang Seng Bank savings account to which Charge 2 related, she set out in pages 113 to 119 in D1 the source of the each credit and debit in detail, including that ‘service money’ referred to cash deposits of money earned by providing massage and sex services, ‘customers’ investment’ referred to the deposits made by customers into her account upon Huang’s instructions for Mainland investment purposes, and ‘investment return received’ referred to the profits earned from Huang’s Mainland investment and deposited into her account. However, upon being instructed to do so, she transferred some of these returns to the accounts of other customers or Huang’s other business partners for business set-off purposes. The defendant said that according to Huang, such arrangement could reduce the number of transfers of monies and simplify the formalities. The defendant believed that Huang was a legitimate businessman and therefore followed his instructions. Furthermore, these credit and debit transfers also covered other expenses, such as receipts of repayments from friends who had borrowed money previously, money converted into US dollars for use as gifts, transfers made upon maturity of other time deposits, repayments made by Chan Thao, and so on. There were also monies paid on behalf of Huang to customers who then made repayments by depositing monies into the account. In addition, the defendant also listed the payments-in and payments-out in respect of customers’ contributions to the Mainland real estate investments (see page 119(a) to (f) in D1), each of which added up to $2,300,000 odd.", "zh-HK": "20." } }, { "doc_id": 8, "seg_id": 25, "translation": { "en": "至於第三項控罪相關的恒生銀行支票戶口的收支賬，她也在Dl 120至121頁中列出，部分由儲蓄戶口轉至此戶口，也有客人投資內地房地產的存入金額，部分支出也作為買賣物業的支出。\t21.\tAs to Charge 3, she also set out in pages 120 to 121 in D1 the credits and debits of the Hang Seng Bank current account. Some of the credit entries were transfers from the savings account and deposits made in respect of customers’ Mainland real estate investments, whereas some of the debits were for expenses related to sales and purchases of real properties.", "zh-HK": "21." } }, { "doc_id": 8, "seg_id": 26, "translation": { "en": "就第四項控罪相關的渣打銀行戶口，她列出6項共750,000元的現金存款，是她在夾萬內取出現金而存入，該戶口亦用以支付按揭物業的轉賬支出(D1第112至143頁)。\t22.\tAs to the Standard Chartered Bank account in relation to Charge 4, she has listed six cash deposits in the total sum of $750,000, which was cash that she had taken out from the safe. This account was also used for repaying mortgage loan by transfer (pages 112 to 143 in D1).", "zh-HK": "22." } }, { "doc_id": 8, "seg_id": 27, "translation": { "en": "就第五項控罪相關的中國銀行戶口共8項逾350,000元的存款，她指出是約在1995至2004年間，其姊姊從內地來港旅遊時，被告以她的港元兌換姊姊的人民幣而來，她一直保存至約2004年左右，因銀行開始接受人民幣存款才開戶，若每次存款少於50,000 元毋須手續費，她才分8次、每次少於50,000元而存入(D1第144至147頁)，而147頁中2005年12月的300,000餘元的存款，則只是定期到期連利息的存入，這些據她所說根本並非犯罪得益。\t23.\tAs to the eight deposits totalling over $350,000 into the Bank of China account in relation to Charge 5, she said that the money was obtained by exchanging her Hong Kong currency with her sister’s Renminbi when her sister travelled to Hong Kong on various occasions from 1995 to 2004. She had kept the money until 2004 or so when banks began to accept deposits in Renminbi, and only then did she open a Renminbi account. As no service fee was charged for deposits of less than ¥50,000, she put the money into the account by making eight separate deposits of less than ¥50,000 each (pages 144 to 147 in D1). For the deposit of ¥300,000 odd made in December 2005 (listed on page 147), it was a deposit of principal with interest of a time deposit upon its maturity. According to her, it had nothing to do with proceeds of crime.", "zh-HK": "23." } }, { "doc_id": 8, "seg_id": 28, "translation": { "en": "就陳森的生意狀況，被告呈上D2文件夾以支持陳是正常的生意人，包括陳森(即Chan Thao Phoumy) 在1993年是東溢貿易公司(Oriental Profit Trading) 的大股東，賴國雅是其夥伴(D2 第 1 至 19 頁，第15頁為佔股股份份數)，D2第22至57頁則是陳森從法國入口時裝的文件。而陳森的東溢貿易亦與賴國雅有份的顯潤發展有限公司(Bacada Development Limited)合作，協議書見D2第58至59頁。D2 第62至131頁為該顯潤有限公司的生產及交易文件。據被告所了解，陳森亦透過顯潤入口時裝往內地銷售。此外，陳森亦有入口法國紅酒做生意(D2第132至161頁)，陳森也是創立貿易有限公司的董事(D2第162至173頁)，而第174至180頁則是陳森從該創立退股，其他夥伴須還款予陳森的協議書。除此以外，陳森亦是毅瑩吸塑製品公司的合夥人(D2第182至187頁)，D2第188至191頁是陳森各公司的卡片。按上述所有文件及據被告所知，她也相信陳森是正當的生意人。\t24.\tIn respect of Chan Thao’s business, the defendant submitted bundle D2 to support the contention that Chan was a legitimate businessman, including that in 1993, Chan Thao (i.e. Chan Thao Phoumy) was the major shareholder of one Oriental Profit Trading Limited with Andy Lai being his partner (pages 1 to 19 in D2; page 15 shows the respective shareholdings of the shareholders), and pages 22 to 57 in D2 are documents showing that Chan imported fashions from France. Chan’s Oriental Profit also cooperated with one Bacada Development Limited in which Andy Lai played a part, and pages 58 to 59 in D2 show the cooperation agreement. Pages 62 to 131 in D2 are the production and transaction documents of Bacada Development Limited. As the defendant understood it, Chan also imported fashions through Bacada for sale on the Mainland. Moreover, Chan traded in imported French red wine (pages 132 to 161 in D2) and was a director of one Trenlux Trading Limited (pages 162 to 173), and pages 174 to 180 show the agreement by which he withdrew from Trenlux as shareholder and by which his other partners had to repay him. Furthermore, Chan was a partner of one Sharp Blister Manufacturing Company (pages 182 to 187 in D2), and pages 188 to 191 in D2 show Chan’s business cards in various companies. In light of all the above documents and based on her own knowledge, the defendant also believed Chan Thoa was a legitimate businessman.", "zh-HK": "24." } }, { "doc_id": 8, "seg_id": 29, "translation": { "en": "被盤問下，就提供性服務的收入，她指出列出的已是儲蓄，已扣除各項生活費。她同意至1990年時，她已有現金儲蓄6,000,000餘元，她只放在床下，至1995年左右才購買夾萬。她不存放於銀行，因擔心銀行的月結單寄來時信件若被偷取，別人便得知她有這些積蓄，但她卻不擔心被盜竊，放在家中她不覺得危險。至1997年時，被告承認已有現金逾20,000,000餘元，但她不喜歡存入銀行，後來雖是已有保險箱，但她指保險箱太細小，不足以擺放。她更指在2002年搬家時，唯有把所有現金從夾萬放進手拉行李箱中，自行乘的士運送。\t25.\tIn respect of the income she earned by providing sex service, she said under cross-examination that the amounts she had listed were her net savings with various living expenses deducted already. She agreed that as in 1990 she had already got cash savings in the amount of $6,000,000 odd. She just kept the money under her bed and only in 1995 or so did she buy a safe. She did not keep the money in banks because she worried that others would come to know she had such savings if the monthly bank statements were stolen when being mailed to her. However, she did not worry about theft and did not find it dangerous to keep the money at home. The defendant admitted that by 1997 she had already had over $20,000,000 in cash, but she would not like to put money into banks. Although safe deposit boxes were available subsequently, she said that the boxes were too small for keeping the money. She even said that when she moved her residence in 2002, for want of an alternative, she moved all the cash from the safe into a suitcase, which she then carried to her new place of residence by taking a taxi.", "zh-HK": "25." } }, { "doc_id": 8, "seg_id": 30, "translation": { "en": "此外，她也承認這些是辛苦賺來的金錢，提供性服務後期，每次約有3,000 至5,000元不等。她更直接被問及至2000年時已有逾千萬元現金，為何仍須繼續從事性交易，被告回應謂『留住啲客繼續做，唔通有錢唔搵咩』。\t26.\tIn addition, she admitted that the money was hard-earned and that, at a later stage, each time she provided sex service she could receive $3,000 to $5,000 in return. When she was directly asked why she continued to engage in sex transactions when she already had over $10,000,000 in cash in 2000, the defendant replied, “Retain the customers and continue to do it. We wouldn’t let go any chance to make money, would we?”", "zh-HK": "26." } }, { "doc_id": 8, "seg_id": 31, "translation": { "en": "被告亦被問及為何不把現金存放於銀行做定期存款生息等等，她說曾做小量金額的定期也只是因應銀行職員推銷，她才存放。至於在D1第119頁中，2005年1月21日存入的現金15,000,000元，她指是因應銀行經理要求存入，才可予批核按揭。她當天自己從夾萬取出金錢存入，她只約了陳森在銀行等她到銀行。被告亦被問及提存中亦有很多現金大額的提款，為何卻不使用支票，被告雖同意支票形式是較安全、方便，省時於數銀紙的方法，但她說她有時間，亦喜歡這樣做。至於從姊姊兌換而來的人民幣，她同意存放已逾10年，但她也有往返內地使用。\t27.\tWhen being asked why she did not, for example, put the cash in the bank as time deposit to earn interest, she said that she had had a little money kept as time deposit, but this was merely because the bank staff persuaded her to do so. As to the deposit of $15,000,000 in cash on 21 January 2005 as shown on page 119 in D1, she said that the money was deposited upon request by the bank manager for the purpose of obtaining approval of mortgage loan. On that day, she herself took the money out of the safe for the purpose of making the deposit, and only asked Chan Thao to wait for her at the bank. The defendant was also asked why she did not use cheques when withdrawals in large amounts were involved, although the defendant agreed that using cheques was safer, more convenient and less time-consuming than counting banknotes, she said she had time and also liked to count banknotes. As to the Renminbi obtained from the exchange with her sister, she agreed that the money had been kept for over 10 years although she also used the money when she visited the Mainland.", "zh-HK": "27." } }, { "doc_id": 8, "seg_id": 32, "translation": { "en": "有關內地房地產的投資，被告同意她投資時，並不知道黃靜俊已投資多少，她也不認識部分存款入賬 戶的人，但她說曾看過黃的合同文件，亦相信黃。至於梁美娟有否真的做生意，她確實並不知悉，她也不認識梁美娟。被告更進一步指黃靜俊指示她，黃會與客戶對數而存款進被告的戶口中，被告收妥後，她也會以電話通知黃收到款項，這些數目全由黃靜俊計算，但她相信他，並會按指示而行。\t28.\tIn respect of the investments in Mainland real estate, the defendant agreed that when she made the investments, she had no idea how much Huang Jingjun had invested, and she did not know some of the people who deposited money into the account, but she said she had seen Huang’s contract documents and believed him. As to whether Leung May Qu had indeed done any business, she said she really did not know, nor did she know Leung May Qu. The defendant further said that Huang Jingjun had instructed her that he would set off with customers and monies would be deposited into the defendant’s account, and she called to inform Huang whenever she received the money. The sums were all calculated by Huang, but she trusted him and acted as per his instructions.", "zh-HK": "28." } }, { "doc_id": 8, "seg_id": 33, "translation": { "en": "至於陳森的生意，她知道高小姐是他公司的職員，被告也曾到過他的公司。文件中如D2第64、68頁等亦有陳森的字跡，但至於毅瑩吸塑其後有否做生意被告並不知悉。」\t29.\tAs to Chan Thao’s business, she knew that Miss Ko (transliteration) was a staff member of his company and the defendant had been to his company. Documents such as those shown on pages 64 and 68 in D2 also bear Chan Thao’s handwriting. However, the defendant did not know whether Sharp Blister carried out any business subsequently.”", "zh-HK": "29." } }, { "doc_id": 8, "seg_id": 34, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 8, "seg_id": 35, "translation": { "en": "7.\tThe applicant contends that the convictions are neither safe nor satisfactory, advancing six grounds of appeal which revolve around the following three main points:", "zh-HK": "申請人就定罪不安全也不穩妥之說提交六項上訴理由。它們可以歸納為以下三點：" } }, { "doc_id": 8, "seg_id": 36, "translation": { "en": "(1)\tThe prosecution failed to provide sufficient evidence on mens rea, namely there was “reasonable ground to believe” that the property in question represented the proceeds of an indictable offence (the first ground of appeal);", "zh-HK": "控方未能提供充分有關犯罪意圖，即有「合理理由相信」有關財產是代表從可公訴罪行的得益的證據(第一項上訴理由);" } }, { "doc_id": 8, "seg_id": 37, "translation": { "en": "(2)\tJudge Yiu improperly rejected the defence evidence. In the absence of any valid rebuttal by the prosecution of the defence evidence, the Judge improperly rejected evidence which suggested that the property might not have been obtained illegally (the second, third, fourth and fifth grounds of appeal); and", "zh-HK": "姚法官不當地拒納辯方證據。在控方未能有效反駁辯方證據情況下，不當地拒絕接納辯方證據指有可能這些財產不是非法所得(第二、三、四及五項上訴理由)；及" } }, { "doc_id": 8, "seg_id": 38, "translation": { "en": "(3)\tThere is a lurking doubt in the case. The prosecution evidence as a whole was weak and deficient. The defendant is a woman from the Mainland who had been working hard in immoral (not illegal) business for 20 years. To convict her of “money laundering” because she had been able to save up a relatively large amount of money and because of the way in which she managed her personal finance, would create a lurking real risk of the verdict being erroneous, thereby rendering the convictions unsafe and unsatisfactory. The court should accordingly exercise its discretion and quash the convictions (the sixth ground of appeal).", "zh-HK": "案件存有「潛伏疑點」(Lurking Doubt)。控方整體證據薄弱和存在缺失。一個來自內地的女子，二十年來從不道德(不是非法)的途徑，辛勤積蓄較多的錢，以及個人理財的習慣而被裁定「洗黑錢」罪成，這潛伏著實質危險的誤判，令定罪不安全、不穩妥，法庭應行使酌情權、推翻定罪(第六項上訴理由)。" } }, { "doc_id": 8, "seg_id": 39, "translation": { "en": "Essential elements of the offence", "zh-HK": "控罪要素" } }, { "doc_id": 8, "seg_id": 40, "translation": { "en": "8.\tIn Oei Hengky Wiryo v HKSAR (No 2) (2007) 10 HKCFAR 98, the Court of Final Appeal explained the essential elements of this offence as follows:", "zh-HK": "終審法院在 Oei Hengky Wiryo v HKSAR (No 2) (2007) 10 HKCFAR 98 一案就本控罪的要素作出以下的詮釋：" } }, { "doc_id": 8, "seg_id": 41, "translation": { "en": "(1)\tOn a proper construction of section 25(1) of the Ordinance, the prosecution does not have to prove that the property did in fact represent the proceeds of an indictable offence. The actus reus of this offence is the act of dealing with the property. The status of the property merely goes to the mens rea of the offence. (HKSAR v Wong Ping Shui & Another (2001) 4 HKCFAR 29 applied; R v Montila & Others [2005] 1 Cr App R 26 distinguished). (See paras. 96-100)", "zh-HK": "按照《條例》第25(1) 條的恰當詮釋，控方毋須證明有關財產確實為可公訴罪行的得益。此項罪行的「犯罪行為」是處理有關財產。財產的狀況只關乎此項罪行的「犯罪意圖」元素(引用HKSAR v Wong Ping Shui & Another (2001) 4 HKCFAR 29; R v Montila & Others [2005] 1 Cr App R 26 予以區別)。(見第 96 至 100 段)" } }, { "doc_id": 8, "seg_id": 42, "translation": { "en": "(2)\tIn practice, it is likely that the first limb of section 25(1) － the “knowing” limb － can seldom be relied on to prosecute offenders unless the prosecution can prove that the property did in fact represent a person’s proceeds of an indictable offence. However, that is a different matter from requiring the prosecution to prove in all cases brought under that section that the property did in fact represent a person’s proceeds of an indictable offence. (See para. 106)", "zh-HK": "實際上，除非控方能夠證明有關財產確實為某人從可公訴罪行的得益，否則第 25(1) 條的首部分—–即關乎「知道」的部份—–應不會經常被用以檢控罪犯。但這絕不代表上述條文要求控方在每一宗根據該條文提出的檢控中都要證明有關財產確實為某人從可公訴罪行的得益。(見第 106 段)" } }, { "doc_id": 8, "seg_id": 43, "translation": { "en": "9.\tSee also HKSAR v Yan Suiling (FACC No. 6 of 2011) (appeal proper) (FAMC 84/2010) (leave to appeal).", "zh-HK": "另見：HKSAR v Yan Suiling (嚴穗陵) (FACC No. 6 of 2011) (正式上訴) (FAMC 84/2010) (上訴許可)。" } }, { "doc_id": 8, "seg_id": 44, "translation": { "en": "10.\tIn HKSAR v Lai Kam Yee Teresa [2010] 4 HKLRD 157, the Court of Appeal had this to say regarding the mens rea:", "zh-HK": "上訴法庭在香港特別行政區訴賴錦儀 [2010] 4 HKLRD 157 對本罪行的「犯罪意圖」作出以下的裁決：" } }, { "doc_id": 8, "seg_id": 45, "translation": { "en": "17. …...本案的重點是控罪的「犯罪意圖」。……關於犯罪意圖控方不是指申請人「知道」有關的財產是從可公訴罪行獲得的利益而是說申請人有「合理理由相信」有關的款項是從可公訴的罪行獲得的得益。\t“\t17.\t…...The crux of the matter was the ‘mens rea’ of the charge. …… As for the mens rea, the Prosecution’s case was not that the Applicant ‘knew’ that the property was the proceeds of an indictable offence, but that the Applicant had ‘reasonable grounds to believe’ the property to be the proceeds of an indictable offence.", "zh-HK": "「" } }, { "doc_id": 8, "seg_id": 46, "translation": { "en": "在決定一名被告人是否有「合理的理由相信」這個概念時法庭須要考慮兩點。第一點是客觀的，即一名具常識、有情理和正當思維的人士(合理人)會否認為有關的情況是足以令人相信有關款項是從可公訴罪行的得益。第二點是主觀的，即被告人是否知道有關情況的存在，致令他相信有關的款項是從可公訴罪行的得益。\t18.\tWhen the court determines whether a defendant has the ‘reasonable grounds to believe’, it has to take into account two factors. The first factor is an objective one, namely whether a reasonable person with common sense and in his right thinking (a reasonable man) will think that the circumstances suffice to cause him to believe that the money is the proceeds of an indictable offence. The second factor is a subjective one, namely whether the defendant knows the existence of those circumstances that will cause him to believe that the money is the proceeds of an indictable offence.", "zh-HK": "18." } }, { "doc_id": 8, "seg_id": 47, "translation": { "en": "只要控方能夠證實這兩點，法庭便可以裁定被告人是有該控罪的犯罪意圖，控方是無須證明被告人是「確實相信」有關的款項是從可公訴罪行的得益，見HKSAR v Ma Zhujiang [2007] 4 HKLRD 285。法庭以『嚴厲』這形容詞來描述這條法例。」\t19.\tIf the Prosecution can prove the above two factors, the court is entitled to find that the defendant has the requisite mens rea for the charge. The Prosecution does not have to prove that the defendant ‘actually believes’ that the money involved represents the proceeds of an indictable offence. See HKSAR v. Ma Zhujiang [2007] 4 HKLRD 285. The court described the legal provision as ‘harsh’.”", "zh-HK": "19." } }, { "doc_id": 8, "seg_id": 48, "translation": { "en": "Our views", "zh-HK": "本庭意見" } }, { "doc_id": 8, "seg_id": 49, "translation": { "en": "11.\tIn the present case, Judge Yiu found that the applicant had “reasonable grounds” to believe that the sums in question represented the proceeds of an indictable offence. We will first deal with the parties’ arguments over the principles involved in this appeal and then consider individual charges.", "zh-HK": "在本案姚法官裁定申請人有「合理理由」相信有關的款項是從可公訴罪行的得益。本庭先處理涉及本上訴原則性的爭議，然後再處理個別控罪。" } }, { "doc_id": 8, "seg_id": 50, "translation": { "en": "「合理理由相信」\t1)\t“Reasonable grounds to believe”", "zh-HK": "1) " } }, { "doc_id": 8, "seg_id": 51, "translation": { "en": "12.\tMr Luk SC, appearing with Mr Poon for the applicant, contends that the prosecution evidence only showed that during the relevant period the applicant had some cash and dealt with some money, that there were quite a number of credit and debit entries in several bank accounts under her name, of which some were related to the purchase of real estate by her, and that she did not pay any tax in Hong Kong between 1999 and 2005. Mr Luk submits that the prosecution evidence only served to prove that the applicant had dealt with a lot of money, but there was nothing to prove that the money in question came from or represented the proceeds of an indictable offence, and hence there was no factual basis on which a reasonable man would have believed that the property in question had anything to do with an indictable offence.", "zh-HK": "代表申請人的陸貽信資深大律師及潘展平大律師指控方的證據只是顯示在相關的時段申請人有一些現金，曾經處理一些款項及在幾個個人名義的銀行戶口中有不少的入賬及支賬項目，其中部分與申請人所購入物業有關，及申請人在1999年至2005年沒有在香港交稅。陸大律師指控方的證據只能證明申請人當時處理了很多金錢，但沒有任何證據證明有關的款項是來自或代表公訴罪行所得，以致讓一個合理的人有事實基礎相信被處理的財產與公訴罪行有關。" } }, { "doc_id": 8, "seg_id": 52, "translation": { "en": "13.\tWith respect, we do not agree with this contention. Hong Kong enjoys a reputable, sound and reliable banking system, but the applicant kept a huge amount of cash inside the safe at home. Moreover, the safe deposit boxes in her cohabitee’s name also stored huge amounts of cash, and the keys to these two boxes were kept inside the safe that could only be opened by her. Despite her claim that she did not trust banks, she owned four different bank accounts, to and from which deposits and withdrawals in large amounts of money were made. By common sense, these are all extremely unusual circumstances.", "zh-HK": "本庭不同意這說法。香港擁有一個良好聲譽、運作健全及可以令人信賴的銀行制度，但申請人卻在家裡的夾萬存放巨額現金。另外，她的同居男友名下的保險箱內亦是存有巨額現金，而這兩個保險箱的鎖匙是放在只有申請人才可以開啟的夾萬內。雖然申請人聲稱她不信任銀行，但同時她卻分別擁有四個銀行戶口及在這些戶口大量存入及提取金錢。從常理來看，這些都是極不尋常的情況。" } }, { "doc_id": 8, "seg_id": 53, "translation": { "en": "14.\tFrom the “Table explaining the deposits and transfers to and from bank accounts in relation to Charges 2 and 3” in the Defence Exhibit Bundle (1) provided by the applicant, it can be seen that the applicant had also deposited into the banks what she claimed to be earnings from sex services (service money). She also deposited the money which had been kept inside the safe into the bank accounts for investment purposes. She also used the current account to make payments for purchasing a car and taking out vehicle insurance. All these went counter to her defence that she did not keep money in banks for fear that the monthly bank statements mailed to her would be stolen and hence her savings would be disclosed to others, or that she did not like to deposit money in banks. Although the prosecution had not adduced any evidence to prove that the property in question in fact represented a person’s proceeds of an indictable offence, it does not mean that the above evidence was “neutral” and unsupportive of the proposition that the applicant did have the requisite mens rea.", "zh-HK": "從申請人提供辯方證物冊(1)內的「有關第二及第三條控罪銀行戶口存款及轉賬的解釋列表」看到申請人同時是有將她聲稱從性服務所得的費用(服務費)存入銀行。她亦有把夾萬內的款項存入銀行戶口作為投資之用。她亦有使用支票戶口支付購買汽車及汽車保險。這些都是與她聲稱她不存錢在銀行的原因是因為擔心銀行的月結單寄來時信件會被偷取，讓別人知道她有這些積蓄或她不喜歡存錢入銀行的辯解自相矛盾。雖然控方在本案並沒有提供任何證據證明有關財產實確是某人從可公訴罪行的得益，但這不表示上述的證據性質是「中性」及不能支持申請人犯罪意圖之說。" } }, { "doc_id": 8, "seg_id": 54, "translation": { "en": "15.\tJudge Yiu took into account the following unusual features of the present case:", "zh-HK": "姚法官所考慮的本案不尋常的事項包括以下各點：" } }, { "doc_id": 8, "seg_id": 55, "translation": { "en": "由 1983 年至 2003 年 20 年間，申請人聲稱單靠從事按摩及提供性服務，竟可儲存現金共 23,000,000 餘元;\t(1)\tThe applicant claimed that, over the 20 years between 1983 and 2003, she managed to save up as much as $23,000,000 odd solely by providing massage and sex services;", "zh-HK": "(1)" } }, { "doc_id": 8, "seg_id": 56, "translation": { "en": "自 1997 年她已有逾 2 千萬元現金，但她說為了留住客人而繼續從事該些服務;\t(2)\tSince 1997, she had had over $20,000,000 in cash, but she said she had continued to provide those services with a view to retaining customers;", "zh-HK": "(2)" } }, { "doc_id": 8, "seg_id": 57, "translation": { "en": "雖然她並非完全不使用任何銀行戶口，同時亦有把少量現金作定期存款，但她把大量現金放於家中，在未有夾萬時只放在床下，她不擔心盜竊，卻擔心存放銀行會被偷去月結單信件，因此才不存放於銀行。而在搬屋時，她更只是把千多萬元現金放於手提行李箱中自行搬送；\t(3)\tAlthough it was not the case that she did not use any bank account, and in fact she had kept a small amount of money as time deposit, she did keep a large amount of cash at home, putting it underneath her bed before there was a safe. She did not worry about theft of the money, but instead worried that monthly bank statements would be stolen if she put the money in banks, and this explained why she did not keep the money in banks. When she moved her residence, she just put cash of over 10 million dollars in a suitcase which she carried by herself;", "zh-HK": "(3)" } }, { "doc_id": 8, "seg_id": 58, "translation": { "en": "她聲稱的內地房地產投資的核心人物是黃靜俊，可是從所有文件中，除了一張據申請人提供黃靜俊的銀行戶口號碼結餘證明外，其他所謂的內地投資，竟完全沒有任何文件證明，而申請人提供的內地房地產文件更指示關乎陳森，而非黃靜俊；\t(4)\tShe claimed that Huang Jingjun was the key person in the Mainland real estate investments. However, apart from one document which showed the number of and balance in Huang Jingjun’s account, none of the documents produced by the applicant constituted evidence of the so-called Mainland investments. Indeed, the Mainland real estate documents supplied by the applicant indicated that Chan Thao instead of Huang Jingjun was involved;", "zh-HK": "(4)" } }, { "doc_id": 8, "seg_id": 59, "translation": { "en": "她按黃靜俊的指示，讓不知悉的人士存錢到她的戶口，然後再按指示存入不同賬戶內，但她竟然對整個投資規模、黃靜俊的投資多少也全不知悉；\t(5)\tUpon Hung Jingjun’s instructions, she allowed unknown persons to deposit monies into her accounts, which were then transferred to various accounts pursuant to further instructions. In doing so, however, she did not have the faintest idea about the scale of the entire investment scheme and the extent of Huang’s investment;", "zh-HK": "(5)" } }, { "doc_id": 8, "seg_id": 60, "translation": { "en": "在 2001 年 2 月 22 日，同日有兩次存款到她的其中一個銀行戶口，申請人說這些是她服務費的儲存。然而，其後的客人投資支出竟剛巧是該兩次儲存的總數；\t(6)\tTwo sums of money were deposited into one of her bank accounts on the same day of 22 February 2001, and the applicant said that those were deposits of her service money. However, as it turned out, the customers’ investment expenses were exactly the sum total of those two deposits;", "zh-HK": "(6)" } }, { "doc_id": 8, "seg_id": 61, "translation": { "en": "她列出的詳盡收支項目，大部份既無客戶名字，亦無數簿紀錄，她何以可憶述這多年來的進支；\t(7)\tOf the credit and debit details listed by her, most did not bear the names of customers, nor were they evidenced by ledger records. It might be queried why she was able to recall the various credits and debits over the many years;", "zh-HK": "(7)" } }, { "doc_id": 8, "seg_id": 62, "translation": { "en": "有關陳森的生意狀況，申請人提供的文件是很早期的，約1993年左右的文件，較後期或近期的則欠奉。文件中只有租金攤分協議或發票數張，沒有其他生意上的合約或公司會計賬目等文件，難以接納陳森在相關時刻確實仍在經營生意。\t(8)\tIn respect of the status of Chan Thao’s business, the applicant had only provided documents from a very long time ago, namely around 1993, and no subsequent or recent documents were made available to the court. The documents provided merely included an agreement for apportionment of rental and a few invoices, and there were no other documents such as business contracts or accounting records. It would be difficult to accept that Chan Thao was still carrying on business at the material time.", "zh-HK": "(8)" } }, { "doc_id": 8, "seg_id": 63, "translation": { "en": "16.\tIn our view, these unusual circumstances could have led a reasonable man to think that the sums in question represented the proceeds of an indictable offence. By reason of these unusual circumstances, the court was also entitled to reject the applicant’s defence and go on to find that the applicant believed the sums in question represented the proceeds of an indictable offence.", "zh-HK": "本庭認為這些不尋常的情況是可以讓一名合理的人士認為有關款項是從可公訴罪行的得益。法庭亦可根據這些不尋常的情況拒絕接納申請人的辯解，繼而裁定申請人是相信有關的款項是從可公訴罪行的得益。" } }, { "doc_id": 8, "seg_id": 64, "translation": { "en": "17.\tThe applicant relies on the cases of Yan Suiling, HKSAR v Tam Hung (CACC 127/2010) and HKSAR v Au Hau Ching (CACC 146/2008). The applicant contends that although the prosecution did not have to prove that the applicant participated in the underlying indictable offence at the time of the money laundering, it was still necessary for the prosecution to adduce evidence that certain serious crime had occurred at that time and that the monies dealt with by the applicant were related to that serious crime.", "zh-HK": "申請人引用 Yan Suiling (嚴穗陵), HKSAR v Tam Hung (譚雄) (CACC 127/2010) 及 HKSAR v Au Hau Ching (區巧貞) (CACC 146/2008)。申請人指雖然控方無須證明申請人「洗黑錢」時曾參與有關的可公訴罪行，但控方仍須提出證據當時發生過某種嚴重罪行，而申請人所處理的款項涉及該種嚴重罪行。" } }, { "doc_id": 8, "seg_id": 65, "translation": { "en": "18.\tWith respect, we do not agree. The Court of Final Appeal pointed out in Wong Ping Shui that the criminal offences that generated “black money” were often carried out in secrecy at one or more places, therefore it would be implausible that the legislature would have intended to require the prosecution to produce proof of the underlying criminal offences that generated the “black money”. In our view, this principle is also applicable to the issues raised by the defence in the present case. We do not agree that the prosecution has to produce evidence on whether the “black money” in question involved a “certain form” or “certain kind” of serious crime. The court is required to consider all the facts of the particular case, including, inter alia: the defendant’s occupation, income and assets; the amount of the property in question and the form in which such property was held; how the defendant dealt with the property; the credibility of the explanations put forward by the defendant in respect of his/her ownership of such property, and whether there is any evidence in the case to support such explanations. The issue of mens rea is to be dealt with and determined on the basis of the facts specific to each particular case. It is true that, in the cases cited by the defence, there was evidence showing the existence of serious crimes, and that such evidence might be used to corroborate the “money laundering” charge against the defendants. Nevertheless, even if there is no such supporting evidence, it does not mean that the prosecution can never discharge the onus of proving that the defendant had the requisite mens rea. The present case is a typical example.", "zh-HK": "本庭不同意申請人的立場。終審法院在 Wong Ping Shui 一案指出產生「黑錢」的刑事罪行往往是以秘密形式及在一處或多處地方進行，故此《條例》的立法原意是不會要求控方就產生這些「黑錢」的根本刑事罪行提出舉證。本庭認為這原則亦適用於現辯方所提出的爭議，本庭不同意控方需要提出有關的「黑錢」是否涉及「某種」或「某類」嚴重罪行的舉證。法庭是需要考慮整體案情，這包括被告人的職業、收入及資產，以及有關財產的數額和以甚麼形式持有、被告人處理財產的方法及被告人就擁有這些財產所作出辯解的可信性及和案中有沒有證據支持這些辯解等。法庭在處理被告人的犯罪意圖時是需要按照每一件案件的獨特案情作出裁決。在辯方引述的案例內雖然是有證據顯示嚴重罪行的存在，而這些嚴重罪行的證據可能是用作支持被告人「洗黑錢」控罪的佐證，但就算沒有這些佐證也不表示控方必然不能履行證明被告人具有犯罪意圖的舉證責任。本案是一個典型的例子。" } }, { "doc_id": 8, "seg_id": 66, "translation": { "en": "19.\tMr Luk submits that even if the applicant’s explanations on the monies in question were not accepted, the court was still required to consider if the monies were “black money”. In our view, it is extremely unusual for the applicant and her boyfriend to keep, as they did, such huge amounts of cash inside the safe at home and the safe deposit boxes respectively. Had these monies been obtained from normal commercial transactions, then we see no reasonable grounds for the need to keep them in the form of cash, especially in light of the fact that at the same time the applicant also owned and operated a number of bank accounts. This being the case, it was open to the court to infer that the applicant did have the relevant mens rea, namely the belief that the monies were “black money”.", "zh-HK": "陸大律師指就算申請人對這些款項的辯解不被接納，法庭仍須考慮有關的金錢是否是「黑錢」。本庭認為申請人在家裡的夾萬及她男朋友在其保險箱內存放如此巨額的現金是一項極不尋常的行為。若果這些金錢是從正常商業交易取得的，本庭看不到有任何合理理由需要以現金形式存放，特別是申請人同時亦有多個銀行戶口及有運用這些銀行戶口。在這情況下，法庭是可以推論申請人是具有相關的犯罪意圖相信這些錢財是「黑錢」。" } }, { "doc_id": 8, "seg_id": 67, "translation": { "en": "20.\tMr Luk further submits that, on the facts, the monies in the name of and owned by the applicant probably came from Chan Thao, and the applicant had in fact adduced evidence that Chan Thao was engaged in legitimate business such as fashions and wine. This submission does not, in our view, assist the applicant. It was not the applicant’s defence that the monies in question came from Chan Thao; she insisted that she had earned the monies from sex service and real estate investments. In any event, if Chan Thao was indeed engaged in legitimate business, there was no evidence to explain why huge sums of cash were kept in his safe deposit boxes.", "zh-HK": "陸大律師更指根據本案的案情，其實申請人名下及擁有的金錢應該是來自陳森，而申請人亦有提供證據證明陳森從事時裝及洋酒等正當生意。本庭不認為這論點可以協助申請人。申請人的答辯理由並不是有關金錢是來自陳森，她堅持她是以性服務及投資地產賺取這些金錢。無論如何，若果陳森真是從事正當生意，沒有任何證據解釋為何他的保險箱內會存放巨額現鈔。" } }, { "doc_id": 8, "seg_id": 68, "translation": { "en": "2)\tThe judge improperly rejected the defence evidence", "zh-HK": "2) 法官不當地拒絕接納辯方的證據" } }, { "doc_id": 8, "seg_id": 69, "translation": { "en": "21.\tJudge Yiu refused to accept the applicant’s claim that by providing sex service she had earned and saved up such large amounts of cash and also her explanations as to why she did not put the money into banks. He also rejected the applicant’s allegation that she had engaged in Mainland real estate investments. In our view, these are findings of facts. The Judge has in his written judgment explained the reasons for his verdict. We do not think he misunderstood the fundamental principle that the prosecution bears the burden of proof or failed to consider the possibility of the applicant’s explanations being true.", "zh-HK": "姚法官拒絕接納申請人聲稱她是以提供性服務賺取及儲存這些大量現金及她解釋不放入銀行的原因。姚法官亦拒絕接納申請人聲稱從事內地房地產的投資之說。本庭認為這些都是有關事實的裁決。姚法官已在判案書上詳細說明他裁決的原因。本庭不認為他混淆了控方需要負上舉證責任的基本原則及他忽略考慮申請人的辯解是否可能是真的。" } }, { "doc_id": 8, "seg_id": 70, "translation": { "en": "Individual charges", "zh-HK": "個別控罪" } }, { "doc_id": 8, "seg_id": 71, "translation": { "en": "Charge 1", "zh-HK": "第一項控罪" } }, { "doc_id": 8, "seg_id": 72, "translation": { "en": "22.\tWe have dealt with the mens rea of this charge in the discussion above. The remaining issue is whether or not the applicant dealt with the money kept in the safe deposit boxes under Chan Thao’s name. In respect of the issue of “dealing with”, Judge Yiu made the following findings:", "zh-HK": "本庭已經在上述討論處理這項控罪的犯罪意圖。剩下的爭議點是申請人是否有處理陳森名下保險箱內存放的金錢。姚法官就「處理」一事作出以下的裁決：" } }, { "doc_id": 8, "seg_id": 73, "translation": { "en": "此外，按《有組織及嚴重罪行條例》第455章第2條，有關「處理」的定義其實相當廣泛，這除包括(a)收受或取得該財產外，亦包括(b)隱藏或掩飾該財產(不論是隱藏或掩飾該財產的性質、來源、所在位置等等)。顯然，替別人收藏保險箱的鎖匙正是協助別人掩飾或隱藏該些財產的所在位置，若非經搜查令得以開啟，別人根本無法知道這些鎖匙可開放甚麼地方，更難以推測原來是用以開啟別人的保險箱等等。」\t“\t39.\tMoreover, under section 2 of the Organized and Serious Crimes Ordinance (Cap.455), the term ‘dealing’ is given a wide-ranging definition which includes not only (a) receiving or acquiring the property, but also (b) concealing or disguising the property (whether by concealing or disguising its nature, source, location, etc.). Obviously, to hide the keys to safe deposit boxes for others was precisely to assist them in disguising or concealing the location of the property. Had the boxes not been opened pursuant to the search warrant, others would not possibly have known what those keys were for, still less inferred that the keys were for opening safe deposit boxes belonging to someone else, and so on.”", "zh-HK": "「39．" } }, { "doc_id": 8, "seg_id": 74, "translation": { "en": "23.\tWe agree with Judge Yiu’s findings. We agree that the applicant could not possibly have been ignorant of the fact that two keys to the safe deposit boxes in Chan Thao’s name were inside the safe. The applicant was obviously keeping the keys to the safe deposit boxes for Chan Thao. In light of the fact that they had been cohabiting for years and had a daughter, that they often went in and out of Hong Kong together, and that a large amount of cash was kept inside applicant’s safe, there is no doubt that the applicant was keeping the two keys to the safe deposit boxes for Chan Thao, and that she in fact knew that there were large amounts of cash inside his deposit boxes.", "zh-HK": "本庭同意姚法官的裁決。本庭同意申請人是沒有可能不知道夾萬內有兩條屬於陳森名下保險箱的鎖匙，顯然申請人正是替陳森保管他保險箱的鎖匙。根據他們雙方多年的同居關係，並育有一女兒，並且經常共同出入境，而申請人夾萬內亦已存放大量現金，毫無疑問，申請人替陳森保管兩條保險箱鎖匙，申請人根本亦是知道陳森的保險箱內有那些大量的現金。" } }, { "doc_id": 8, "seg_id": 75, "translation": { "en": "Charges 2 to 5", "zh-HK": "第二至第五項控罪" } }, { "doc_id": 8, "seg_id": 76, "translation": { "en": "24.\tJudge Yiu found as follows:", "zh-HK": "姚法官裁決如下：" } }, { "doc_id": 8, "seg_id": 77, "translation": { "en": "至於第二至第五項控罪均是在被告不同的銀行戶口中，只有她是簽名授權人，被發現有大量現金及其他的提存項目，無疑被告確實是處理上述的據法權產。就第二及第三項控罪而言，所處理的款項分別高達80,000,000餘元及17,000,000餘元，各提存款項均達40,000,000餘元及8,000,000餘元等，被告容許、容讓不同人士使用其銀行戶口作出大量現金及其他款項的存放，被告更接連把這些款項轉賬或提出，按她所述，部分人士她更完全不認識。在此情況下，客觀而言，合理的人均會認為是有合理理由使人相信這些款項的全部或部分、直接或間接是代表是從可公訴罪行的得益。主觀而言，被告自己亦顯然有合理理由相信此情況。順帶一提，被告各項物業買賣的情況，顯然亦是用以掩飾這些財產的真正來源及情況。」\t“\t45.\tCharges 2 to 5 all involve large amounts of cash and other deposit and withdrawal entries having been discovered from the defendant’s various bank accounts, of which the defendant was the sole signatory. Undoubtedly, the defendant did deal with the abovementioned choses in action. In respect of Charges 2 and 3, the monies dealt with amounted to as much as $80,000,000 odd and $17,000,000 odd respectively, and the deposits and withdrawals totalled $40,000,000 odd and $8,000,000 odd respectively. The defendant had allowed and permitted different people to use her bank accounts for keeping large amounts of cash and other monies, and then she had successively transferred or withdrawn these monies. And according to her, some of those who used her accounts were complete strangers to her. This being the case, objectively speaking, a reasonable man would think that there were reasonable grounds which led a person to believe that all or some of the monies directly or indirectly represented proceeds of an indictable offence. Subjectively speaking, the defendant herself obviously had reasonable grounds to hold such a belief. Incidentally, the purchase of various real properties by the defendant was obviously made for the purpose of disguising the real source and status of the property in question.”", "zh-HK": "「45．" } }, { "doc_id": 8, "seg_id": 78, "translation": { "en": "25.\tWe agree with Judge Yiu’s findings.", "zh-HK": "本庭同意姚法官的裁決。" } }, { "doc_id": 8, "seg_id": 79, "translation": { "en": "Charges 4 and 5", "zh-HK": "第四至第五項控罪" } }, { "doc_id": 8, "seg_id": 80, "translation": { "en": "26.\tJudge Yiu made the following findings in respect of Charges 4 and 5:", "zh-HK": "姚法官就第四及第五項控罪作出以下裁決。" } }, { "doc_id": 8, "seg_id": 81, "translation": { "en": "第四及第五項控罪，在金額上，表面上與第二及第三項控罪有所差距，第四項牽涉港幣750,000元，第五項為人民幣349,900元。首先，同樣地，這些戶口是被告個人的戶口，她顯然是處理這些據法權產。在案情中，被告均分別指出，是從夾萬中及櫃桶中取出金錢以作存放。首先，她的夾萬中除港幣外，亦有發現人民幣，顯然她指存入的300，000元人民幣。本席亦認為按她所說，既然亦已從1995年起儲存至2004年存入，這些大量的人民幣必然亦是從夾萬中所提取，毫無疑問，相關第四及五項的金錢根本就是夾萬款項中的一部分。同樣地，客觀而言，合理的人亦必然有合理理由相信上述款項的全部或部分、直接或間接是從可公訴罪行的得益。主觀而言，被告亦必然有合理理由相信這些情況的存在。\t“46.\tCharges 4 and 5 involve HK$750,000 and RMB¥349,900 respectively – amounts which appear to be considerably lower than those involved in Charges 2 and 3. First of all, these accounts were also the defendant’s personal accounts and she had obviously dealt with the choses in action. It is the defendant’s case that monies had been taken out from the safe and drawer respectively and deposited into the accounts. First, in her safe, cash denominated in both Hong Kong currency and Renminbi was found, and she was clearly referring to the RMB¥300,000 deposited. I also take the view that, based on what she said, given that it had been kept since 1995 until 2004 when it was deposited into the account, such a large amount of Renminbi must also have been taken out from the safe, and undoubtedly, the sums involved in Charges 4 and 5 were in fact part of the cash in the safe. By the same token, objectively speaking, a reasonable man would definitely have had reasonable grounds to believe that all or some of those monies directly or indirectly represented the proceeds of an indictable offence. Subjectively, the defendant also definitely had reasonable grounds to hold such a belief.", "zh-HK": "「46．" } }, { "doc_id": 8, "seg_id": 82, "translation": { "en": "就第五項控罪而言，即使接納被告的人民幣真是與其姊姊兌換而來，但被告所兌換出去的金額本身的來源根本亦是從夾萬而來，顯然從客觀及主觀而言，合理的人及被告自己均有合理理由相信上述款項的全部或部分、直接或間接代表任何人從可公訴罪行的得益，而被告仍處理上述款項。」\t47.\tIn respect of Charge 5, even if the defendant’s allegation that she had obtained the Renminbi by making exchange with her sister was accepted, the money which funded the exchange came from the safe. Obviously, both objectively and subjectively speaking, a reasonable man and the defendant herself would have reasonable grounds to believe that all or some of the above monies directly or indirectly represented the proceeds of an indictable offence, and the defendant still dealt with those monies.”", "zh-HK": "47．" } }, { "doc_id": 8, "seg_id": 83, "translation": { "en": "27.\tOn the applicant’s own evidence, the monies involved in these two charges came from the money kept by her in the safe or on her person, and therefore Judge Yiu’s findings are eminently justified.", "zh-HK": "根據申請人的證供，這兩項控罪所涉及的金錢均來自申請人放在夾萬或身上的現金，故此姚法官的裁決是有充分證據支持的。" } }, { "doc_id": 8, "seg_id": 84, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 8, "seg_id": 85, "translation": { "en": "28.\tWe do not agree that there is any lurking doubt in the present case. For the above reasons, we consider the convictions safe and satisfactory. The appeal is dismissed.", "zh-HK": "本庭不同意案件存有任何潛伏疑點。基於上述理由，本庭認為定罪是安全及穩妥的。本庭駁回申請。" } }, { "doc_id": 8, "seg_id": 86, "translation": { "en": "由律政司高級檢控官林穎茜代表。\tMs Vinci Lam, Senior Public Prosecutor of the Department of Justice, for the Respondent", "zh-HK": "答辯人：" } }, { "doc_id": 8, "seg_id": 87, "translation": { "en": "由冼國雄, 蘇福禎律師行轉聘陸貽信資深大律師及潘展平大律師代表。\tMr Arthur Luk, SC and Mr Jackson Poon, instructed by Messrs Sin William & So, for the Applicant", "zh-HK": "申請人：" } }, { "doc_id": 9, "seg_id": 1, "translation": { "en": "Hon Pang JA (giving the Reasons for Judgment of the Court):", "zh-HK": "上訴法庭法官彭偉昌頒發上訴法庭判案理由書：" } }, { "doc_id": 9, "seg_id": 2, "translation": { "en": "This is an appeal from the Court of First Instance of the High Court. The applicant was convicted after trial of one count of trafficking in dangerous drugs involving 1,008 grammes of a crystalline solid containing 997 grammes of ICE, 95 tablets containing 1.38 grammes of methamphetamine and 3.31 grammes of herbal cannabis. He was sentenced to 22 years’ imprisonment by the trial judge (Deputy High Court Judge D Yau). He applied for leave to appeal against conviction.", "zh-HK": "本案源於高等法院原訟法院。申請人在審訊後被裁定一項販運危險藥物罪成立，涉及內含997克冰毒的1,008克晶狀固體、95片內含1.38克甲基苯丙胺的片劑，以及3.31克草本形態的大麻。原審法官（游德康暫委法官）把他判囚22年。申請人不服，就定罪提出上訴許可申請。" } }, { "doc_id": 9, "seg_id": 3, "translation": { "en": "The Facts", "zh-HK": "案情" } }, { "doc_id": 9, "seg_id": 4, "translation": { "en": "The detailed facts of this case are of little significance. Broadly speaking, on the night of 7 August 2015, the applicant returned to Hong Kong from the Mainland, and at Lo Wu Control Point, Customs officers found in his underpants and his sling bag the dangerous drugs in question. Under caution, he admitted that he delivered ICE for others for a reward of $500, and that he would telephone a person called “Wong Sam” upon his return to Hong Kong. On the night of 8 August of the same year, the applicant made further admissions under caution.", "zh-HK": "本案的詳細情節並不重要。粗略而言，2015年8月7日晚上，申請人從內地返港，在羅湖管制站被海關人員發現他身藏涉案毒品於他的內褲和斜靠袋之內。警誡下，他承認為500港元酬勞而替人帶運冰毒、回到香港之後會致電一個名叫「黃三」的人。同年8月8日晚上，申請人在警誡下作出進一步的招認。" } }, { "doc_id": 9, "seg_id": 5, "translation": { "en": "Prosecution and defence cases", "zh-HK": "控辯雙方的說法" } }, { "doc_id": 9, "seg_id": 6, "translation": { "en": "The prosecution submitted that the applicant brought dangerous drugs into Hong Kong without lawful authority. Such an act constituted trafficking. His admission that he would be handing over the dangerous drugs to others made this more so. The mentioning of ICE, in particular, in his cautioned statement, proved that he knew he was conveying dangerous drugs.", "zh-HK": "控方指申請人在沒有法律授權下把毒品帶入本港，這個行為本身已構成販運；他承認會把毒品轉交別人，就更是如此。申請人在警誡詞中特別提到「冰」，也證明他知道自己運送的是毒品。" } }, { "doc_id": 9, "seg_id": 7, "translation": { "en": "The applicant testified that he thought he was “travelling with parallel goods” or “carrying electronic parts across checkpoints” for Wong Sam, and he would return the stuff to that man upon his return to Hong Kong. He testified that when being searched, he only said, “Got busted this time”, but he never mentioned carrying ICE for others for a reward. Conversely, he claimed that he had asked the Customs officer what had been found and the latter answered, “It might be ICE”.", "zh-HK": "申請人在作供時指他以為自己在替黃三「走水貨」、「帶電子零件過關」，在返抵香港之後會把東西交回該名男子。他說他被搜身時只說過「今次衰咗」，但絕無提到為酬勞而替人帶「冰」。他反指自己曾問過關員搜出的是甚麼而後者則答「可能係冰」。" } }, { "doc_id": 9, "seg_id": 8, "translation": { "en": "The applicant went on to explain in court that Wong Sam and he were parallel goods traders. They had known each other for some time. He, on this occasion, at the request of Wong Sam, went to meet with the latter in Shenzhen. During this time, Wong Sam made him drink a canned drink. After that, the applicant became confused and felt someone tying something underneath his underpants. In confusion, he was then taken to the entrance of the checkpoint and was told to take the sling bag in question to Hong Kong.", "zh-HK": "申請人在庭上繼續解釋，黃三和他均為水貨客，雙方已認識一段日子。他這次是應黃三的要求到深圳和後者會面。期間，黃三讓他喝下一罐飲品，之後申請人便開始變得迷迷糊糊並感到有人把東西綁進他的內褲之內。接著，他在迷糊中被帶到關口及被囑咐把有關的斜靠袋帶到香港。" } }, { "doc_id": 9, "seg_id": 9, "translation": { "en": "The applicant said that he did unzip the sling bag to take a look but only saw melon seeds for human consumption. He had put his hand over his underpants briefly but felt nothing different from the usual electronic parts. As regards his admissions under further caution (in the video-recorded interview) and all the details relating to the actual smuggling of ICE, they were fabricated by the Customs officer(s) and forced on him by various improper means. In any case, he was still confused then and did not recover until two days later in Lai Chi Kok Reception Centre.", "zh-HK": "申請人說，他有打開斜靠袋的拉鍊看過，但只看到供人食用的瓜子。他也曾按一按過自己的內褲，但感覺和平常的電子零件沒有分別。至於他在進一步警誡下（即錄影會面裡）所招認的、和確實偷運冰毒有關的所有細節，那都是由海關關員捏造及以各種不當手段強加於他的，反正他本人當時仍舊迷迷糊糊，要在兩天之後才於荔枝角收押所完全清醒過來。" } }, { "doc_id": 9, "seg_id": 10, "translation": { "en": "Course of the trial", "zh-HK": "原審過程" } }, { "doc_id": 9, "seg_id": 11, "translation": { "en": "Given the simple facts of this case, though the prosecution called eight prosecution witnesses (who were all Customs officers) and the applicant elected to give evidence, the entire course of the trial proper (from empanelment of the jury to the completion of the trial judge’s summing-up) only lasted for about two and a half days (from 10 am on 14 December to 11:30 am on 16 December 2016).", "zh-HK": "由於本案案情簡單，控方雖然傳召了八名控方證人（他們全為海關關員），而申請人又選擇作供，但整個正審過程（從挑選陪審員至原審法官宣講完他的《導詞》），卻只用了約兩天半的時間（2016年12月14日早上10時至12月16日早上11時30分）。" } }, { "doc_id": 9, "seg_id": 12, "translation": { "en": "As for the jury, they did not reach a verdict the day they retired. They retired at 11:34 am on 16 December 2016 (Friday) and stopped at 8:03 pm the same day; they resumed deliberation at 9:38 am on 17 December (Saturday) and returned a guilty verdict against the applicant at 12:19 pm the same day. The guilty verdict was by a majority of five to two.", "zh-HK": "陪審團方面，他們並未能在退庭當天達致裁決。他們在12月16日（星期五）早上11時34分退庭，同日晚上8時03分休息，12月17日（星期六）早上9時38分恢復討論，同日中午12時19分裁定申請人罪成。有罪裁決的比數是5對2。" } }, { "doc_id": 9, "seg_id": 13, "translation": { "en": "Ground of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 9, "seg_id": 14, "translation": { "en": "9.\tMr Ng, who acted for the applicant in the trial, only put forward one ground of appeal which reads:", "zh-HK": "在原審時已經代表申請人的吳大律師只提出了一個上訴理由，原文如下：" } }, { "doc_id": 9, "seg_id": 15, "translation": { "en": "\t上訴許可申請人被陪審團以5對2大多數裁決裁定一項販運危險藥物罪罪名成立。陪審團長時間商議。原審法官未有在適當時候向陪審團查詢達致裁決的可能性及提醒他們如未能達至裁決便須要通知法官。在整體情況下，原審法官未有適當地行使酌情權，令使陪審團知悉法庭的時間控制及他們並非要無限期商議至作出裁決。定罪有實在危險是陪審團在無形的時間壓力下作出。」\t“\tThe applicant seeking leave to appeal was found guilty of one charge of trafficking in dangerous drugs by the jury who reached a majority verdict of five to two. The jury took a long time to deliberate. The trial judge did not enquire of the jury at an appropriate time as to any prospect of their reaching any verdict, nor did he remind them to inform the judge if they failed to reach a verdict. In all the circumstances, the trial judge did not exercise his discretion appropriately to inform the jury of the time control of the court and that they were not to deliberate indefinitely until a verdict was returned. There was a real risk that the conviction was reached by the jury being put under pressure of time.", "zh-HK": "「" } }, { "doc_id": 9, "seg_id": 16, "translation": { "en": "10.\tMr Ng contended that in this case, the evidence took a total of eight and a half hours, and the prosecution and defence’s closing submissions and the trial judge’s summing-up another three hours. Minus the time for meals and rest at night, the jury still spent about ten hours in deliberating their verdict and finally only brought in a barely sufficient result of five to two. Therefore, they must have encountered difficulties in the course of their discussions. Nevertheless, the trial judge did not provide them with prompt and/or appropriate assistance or guidance.", "zh-HK": "吳大律師認為，本案的證供合共只有八個半小時，控辯雙方最後陳詞和原審法官的《導詞》再加三小時，但減去用飯和晚上休息的時間之後陪審團卻仍然花了約十小時來商議裁決，而且最後得出的也不外是一個僅僅足夠即5比2的結果，所以陪審團在討論的過程當中必然是遇上了困難，可是原審法官卻沒有向他們提供適時及/或適當的幫助和指引。" } }, { "doc_id": 9, "seg_id": 17, "translation": { "en": "11.\tFor instance, as Lord Lane CJ said in R v Rose [1982] 1 WLR 614, 620 (which the Court of Appeal of the United Kingdom quoted in R v Payne [2001] EWCA Crim 274), depending on the circumstances of the case and the time spent in discussions, the judge should re-assemble the court in due course to make enquiry of the jury as to whether there is any chance of their reaching an agreement in considering whether it is necessary to discharge the jury or to ask them to continue with their discussions on the case. Nevertheless, the trial judge in the present case did not do so.", "zh-HK": "例如，根據英國上訴庭在R v Payne [2001] EWCA Crim 274一案引述Lord Lane CJ在R v Rose [1982] 1 WLR 614, 620的說法，視乎案件的情況，以及已花在討論的時間，法官應在適當的時候重新開庭，向陪審團查詢是否有達致裁決的機會，以考慮是否需解散陪審團或要求他們繼續就案件進行討論，但本案的原審法官卻沒有這樣做。" } }, { "doc_id": 9, "seg_id": 18, "translation": { "en": "12.\tThe Court of Appeal in the United Kingdom expressed the view in Payne that without making the aforesaid enquiry, the jury might have mistakenly thought that they were left to discuss the case indefinitely and felt under pressure which they ought not to have. Also, in the opinion of Mr Ng, this was more than likely to have happened in the present case.", "zh-HK": "英國上訴庭在Payne案表示，不作出上述的查詢，陪審團或許會誤以為自己須要作出無限期的討論而感到不應有的壓力，吳大律師亦認為這情況很可能已在本案發生。" } }, { "doc_id": 9, "seg_id": 19, "translation": { "en": "13.\tMr Ng further contended that the Court of Appeal in the United Kingdom pointed out in R v Court [1995] Crim LR 310 that as a matter of general observation, the judge should keep the jury informed about the timetable and possible implications of the procedures. This principle applies when the jury’s verdict is pending and the judge should intervene in due course.", "zh-HK": "吳大律師續稱，英國上訴庭在R v Court [1995] Crim LR 310指出，作為一般觀察，法官應讓陪審團知道審訊的進度及其對陪審團所可能產生的影響（the timetable and possible implications of the procedures），這個原則在等候陪審團作出裁決時適用，法官應在適當時介入。" } }, { "doc_id": 9, "seg_id": 20, "translation": { "en": "14.\tTaking Lincoln De Four v The State [1999] 1 WLR 1731 (PC) as another example, Mr Ng contended that the jury should be explicitly told that in the event of an irreconcilable disagreement over the case, it was their duty to inform the court of it .", "zh-HK": "吳大律師又以英國樞密院案Lincoln De Four v The State [1999] 1 WLR 1731 (PC) 為例，指陪審團應被明確告知，如果他們對案件產生不可調解的意見，他們便有責任把這個情況告訴法庭。" } }, { "doc_id": 9, "seg_id": 21, "translation": { "en": "15.\tFinally, by citing a case of the Court of Appeal of Hong Kong R v Tam Chi Pang [1986] HKLR 1122, Mr Ng contended that the long period of retirement of the jury is clearly not, of itself, a ground for upsetting a conviction, though there clearly must come a time when this by itself may be sufficient.", "zh-HK": "最後，吳大律師援引香港上訴庭案例R v Tam Chi Pang [1986] HKLR 1122指出，陪審團退庭商議裁決的時間長，這點本身並不足以推翻定罪，但如果時間實在過長，這點卻絕對可能構成足以推翻定罪的理由。" } }, { "doc_id": 9, "seg_id": 22, "translation": { "en": "16.\tTo conclude, Mr Ng submitted that the indifference of the trial judge in the present case left the jury, who were not able to return a valid verdict after long deliberations, unsure of what to do, rendering their verdict of five to two, which was not reached until the following day, unsafe and unsatisfactory.", "zh-HK": "總括而言，吳大律師認為，本案原審法官的不聞不問，令經過長時間商討卻未能達致有效裁決的陪審團不知如何是好，以致他們在第二天才作出的5對2裁決變得有欠安全穩妥。" } }, { "doc_id": 9, "seg_id": 23, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 9, "seg_id": 24, "translation": { "en": "17.\tThe authorities cited by Mr Ng are of no material assistance to the applicant.", "zh-HK": "吳大律師援引的案例，對申請人並無實質幫助。" } }, { "doc_id": 9, "seg_id": 25, "translation": { "en": "18.\tFor example, the background of Court was that after the jury had deliberated for one day, the defendant was late the following day, causing one of the jurors to worry about whether she could leave the court at midday to attend a wedding. Nevertheless, it was only according to a certain member of the court staff that a juror was in a hurry. The judge was then told about it by defence counsel. The judge himself had never received any request for assistance from the jurors. That being the case, in addition to the fact that before the court adjourned for the first day, the foreman had indicated that an agreement might be reached, and the verdict was reached as early as at 10:02 am the following day, the Court of Appeal in the United Kingdom was therefore of the view that there was no evidence that in the result the majority guilty verdict was reached under pressure of time. This is our understanding of that case. As regards the sentence Mr Ng relied on (see paragraph 13 above), it ought to be interpreted in the context of its whole text, with its main point on “the judge was entitled to expect that jurors will raise any personal difficulties they may have”, namely relating to whether or not there was evidence:", "zh-HK": "例如，Court案的背景，是陪審團經過一天商討之後，被告在第二天遲到，以致有個別陪審員擔心未能趕及在同日中午離開法院出席別人的婚禮。不過，據稱有陪審員趕時間，只是基於某法庭職員的話，然後再由辯方大律師引述給法官知道，法官本身則從未收過任何陪審員的求助。這樣，再加上首席陪審員在第一天散庭前曾表示有望達致裁決，而裁決又早於翌日上午10點零2分達成，所以英國上訴庭認為沒有證據顯示該案的大比數有罪裁決是由時間壓力所造成。這是本庭對該案的理解。至於吳大律師依賴的那句話（見上文第13段），理應該根據它的全文去解讀；它的重點在於「法官有權期望個別陪審員會就任何個人困難發聲」，亦即和是否有證據有關：" } }, { "doc_id": 9, "seg_id": 26, "translation": { "en": "\tAs a matter of general observation, the judge should keep the jury informed about the timetable and possible implications of the procedures, but he was entitled to expect that jurors will raise any personal difficulties they may have.”\t“\tAs a matter of general observation, the judge should keep the jury informed about the timetable and possible implications of the procedures, but he was entitled to expect that jurors will raise any personal difficulties they may have.”", "zh-HK": "“" } }, { "doc_id": 9, "seg_id": 27, "translation": { "en": "Of course, the Court of Appeal stated at the same time that if there seemed to be a likelihood that there was pressure on reaching the verdict, then the position would have been wholly different.", "zh-HK": "當然，上訴庭同時指出，如果案中有任何跡象顯示裁決可能是出於壓力（even a likelihood），情況便會完全不一樣。" } }, { "doc_id": 9, "seg_id": 28, "translation": { "en": "19.\tLincole De Four was a case from Trinidad and Tobago. One of the issues in the case was that the jury, having retired for three hours, were asked about their progress by the judge, and the latter indicated that they would be given an additional 30 minutes. The Privy Council of the United Kingdom was of the view that it was more than likely that the jurors, having heard this, felt under pressure, although it would not have been the intention of the judge. Moreover, in the aforesaid conversation, the foreman referred to some matters which troubled some members of the jury due to insufficient prosecution evidence and certain incredible witnesses, and the judge ought to have but nonetheless did not instantly state that in the event of an irreconcilable disagreement it was the jury’s duty to inform the judge. To conclude, the Privy Council quashed that conviction due to obvious mistakes in that case, including the one referred to in Footnote 8. The support Mr Ng wished to seek from that case (see paragraph 14 above) was only an observation made by the Privy Council on one of the mistakes. That observation has its factual background. Whether or not it is necessary for a judge to raise the same in all cases involving lengthy deliberations on his own initiative and repeatedly cannot be generalised.", "zh-HK": "Lincoln De Four 是源於千里達及多巴哥的案件。案中的幾個議題之一，是在陪審團退庭三小時之後、法官向他們垂詢進度之時，後者表示會再給陪審團三十分鐘商討裁決的說法。英國樞密院認為，儘管法官沒有這個意圖，但陪審團聽到這句話後相當可能會感到壓力。此外，在上述的對話當中，首席陪審員曾表示有成員因控方證據不足和某某證人不可信而感到困擾，可是法官卻應該但沒有即時指出，陪審團在商討陷入不可挽回的僵局下有責任把情況告知法官。總括而言，樞密院推翻該案定罪，是因為案中有多個明顯錯處，包括註釋8所提到的錯處。吳大律師希望從該案取得的支持（見上文第14段），只是樞密院針對其中一個錯處而作出的觀察，這個觀察有它本身的事實背景。法官是否須要在所有商討時間較長的案件主動及再三地提出同一點，並不能一概而論。" } }, { "doc_id": 9, "seg_id": 29, "translation": { "en": "20.\tAn observation cannot be generalized. That can be seen from the results of Tam Chi Pang and Payne as well. For example in Tam, although the jury retired at 3:50 pm and reached their verdict at 4:37 am the following day, the then Court of Appeal of Hong Kong did not consider there was any impact on the conviction. The reason being that although it was late at night, the jury had not shown any sign of undue fatigue or unwillingness to continue, and even their verdict (of not guilty on murder but guilty of manslaughter) fully reflected their deliberations. Accordingly, as to the length of retirement, the Court of Appeal’s observations in Tam (see paragraph 15 above) cited by Mr Ng are, in fact, of little use even to that case.", "zh-HK": "任何觀察皆不能一概而論，可同時見於Tam Chi Pang 和 Payne兩案的結果。例如Tam案，儘管陪審團是在下午3時50分退庭、於翌日凌晨4時37分達致裁決，但當年的香港上訴庭卻不認為會影響該案的定罪。原因是，當時雖然為深夜，但陪審團卻未呈現任何過度的疲態（any sign of undue fatigue），又或表現出不想繼續的意願（unwillingness to continue），更何況他們的裁決（謀殺罪脫罪，誤殺罪成立）可充分顯示其深思熟慮。因此，吳大律師就退庭時間長短而援引上訴庭在Tam案的觀察（見上文第15段），其實連在該案也用不上。" } }, { "doc_id": 9, "seg_id": 30, "translation": { "en": "21.\tThe circumstances of Payne were more extreme than those of Tam. When the jury returned a guilty verdict against Payne and another defendant, they had retired for deliberation for five and a half days. Furthermore, the jury sent a note to the judge on the fifth day indicating they were in deadlock (“we have reached deadlock”). On the morning of the sixth day, it was said that they had a dilemma which all reasonable arguments have failed to resolve, namely a nine to one majority with one jury member undecided (“we are in a dilemma – we have reached nine to one with one jury member decided [sic] – all reasonable arguments have failed to help the member reached (sic) a decision”). Nonetheless, it was only after the judge had received the first note that he gave the jury a majority direction. Following the receipt of the second note, the judge did not deal with it as he was engaged in a trial in another court. In the result, at 1 pm on the sixth day, the jury themselves indicated that they had reached a verdict. After the court was reconvened, they delivered a guilty verdict in the case of Payne by a majority of ten to one.", "zh-HK": "Payne案的情況比Tam案更為極端。該案陪審團在裁定Payne和另一名被告罪成之時，其實已退庭商討了五天半。此外，陪審團曾在第五天下午向法官傳遞信息，表示他們已陷入僵局（we have reached deadlock），在第六天早上又指自己正處於一個沒有合理辯論能解決的困境，即九對一而另一人則懸而未決（we have a dilemma – we have reached a nine to one position with one jury member undecided – all reasonable arguments have failed to help the member reached a decision）。然而，法官只是在收到上述第一個便條後向陪審團發出過有關大比數裁決的指引，在收到第二個便條後卻因忙於審訊另一案件而沒有處理，結果陪審團在第六天下午一時自行表示已有裁決並於開庭後以十對一的比數裁定Payne有罪。" } }, { "doc_id": 9, "seg_id": 31, "translation": { "en": "22.\t Broadly speaking, in that case, the Court of Appeal in the United Kingdom was of the view that the facts were complex and the entire trial lasted over seven months. The judge said at the end of his summing-up that there was no pressure of time on the jury. He also said in his summing-up that if he did not respond to the jury’s note about not being able to reach a verdict, it only meant that it was not yet necessary to deal with the problem, and his silence in itself had no significance. Given the background of that case, the jury must have known that they were to carefully deliberate their verdict; they must have known that their deliberations would be long. The last but most important point was that the Court of Appeal did not consider that the judgment of Lord Lane in Rose should be regarded as an inflexible principle which required the judge in Payne, following receipt of the second note, to re-assemble the court to ascertain whether or not the jury should be discharged. In the view of the Court of Appeal, it depended on the case itself.", "zh-HK": "粗略而言，對於該案，英國上訴庭的看法是：此案的案情複雜，整個審訊過程長達七個月；法官曾在《導詞》的末端指出，陪審團沒有任何時間上的壓力；法官也在《導詞》指出，假若他不回應陪審團未能達致裁決的信息，這只表示他認為問題尚未到達要處理的階段，他的沉默本身沒有重要性；基於此案的背景，陪審團不可能不知道要用心商議裁決，他們不可能不知道這個商議過程必然是個漫長的過程。最後，亦是最重要的一點，就是上訴庭不認為Lord Lane在Rose案的相關判詞，應被視為Payne案法官在收到第二個便條後必須重新開庭以查考是否應解散陪審團的硬性原則（inflexible principle）。上訴庭認為，這要視乎每件案件本身。" } }, { "doc_id": 9, "seg_id": 32, "translation": { "en": "23.\tComing back to the present case, the trial judge, basically following the directions of the Court of Final Appeal in Tam King Hon v HKSAR (2006) 9 HKCFAR 206, explained clearly at the end of his summing-up how the jury were to reach their verdict in the case, including a majority verdict and how to deal with it in the event of disagreement. As far as this case is concerned, the crux of these directions was to raise the matter with the judge when they reached deadlock, and seek further assistance. The trial judge said as follows:", "zh-HK": "從案例轉到本案，原審法官是基本上按照了終審法院在Tam King Hon v HKSAR (2006) 9 HKCFAR 206的指示，在《導詞》末端清楚解釋了陪審團應如何就案件達致裁決，包括大比數裁決，以及在意見出現分歧時須如何處理。對本案而言，這些指引的關鍵，是在遇上僵局時須向法官發聲、請求進一步的協助。原審法官是這樣說的：" } }, { "doc_id": 9, "seg_id": 33, "translation": { "en": "\t頭先講話以上就係嗰個--就住本案嘅證據嘅總結，已經完咗嗰部分喇，跟住落嚟，你哋每一位都曾經喺最早期嘅時候，作出咗一個宗教或者係非宗教嘅宣誓，表明會根據證據作出真實嘅裁決，呢個係你哋必須履行嘅責任，你哋每一位將你哋嘅個人經驗同埋智慧帶到陪審團席上，應該互相借鑑彼此嘅經驗同埋智慧，收集思廣益之效，你哋除咗發表自己嘅意見之外，亦應該聽取同埋適當咁考慮其他陪審員意見，你哋必須進行討論同埋辯論，喺經過呢啲討論同埋辯論之後，有人可能會被說服，而接納佢之前所冇持有嘅看法，不過你哋喺任何時間都當然必須履行你哋宣誓中嘅誓言，根據證據，作出真實裁決。\t“\tWhat was said above is the summing-up of this case and it is over. Now each of you has taken an oath or affirmation to return a true verdict according to the evidence at the earliest stage of the trial. This is a responsibility you must fulfil. Each of you takes into the jury box your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening and giving due consideration to the views of others. There must necessarily be discussion and debate, as a result of which a person may be persuaded to accept a view which he or she did not previously hold. But of course you must at all times stay true to your oath and affirmation and give a true verdict according to the evidence.", "zh-HK": "「" } }, { "doc_id": 9, "seg_id": 34, "translation": { "en": "You should strive to reach a unanimous verdict, that is, a verdict upon which you are all agreed, whether guilty or not guilty. If, however, you are unable to do so, then I am entitled in law to accept a verdict upon which at least five of you are agreed, namely a verdict of six to one, or five to two, guilty or not guilty. A verdict of four to three either way does not constitute a verdict. Should that positon arise, foreman, please inform the court, by way of a note, that it is four to three without saying how you are divided on a verdict. You need not to say how many are agreed or disagreed. You don’t have to say it. All that is needed is “four to three” and it would be understood. When the time comes, I will direct you further.”", "zh-HK": "你哋應該力求達成一致裁決，即係一個你哋所有人都同意嘅裁決，無論係有罪或者係無罪嘅裁決。如果你哋唔能夠達成一致裁決的話，本席有權依法接納一項至少經你哋其中五個人同意嘅裁決，即係話六對一或者五對二嘅裁決，四對三嘅無論係有罪、冇罪都好嘅裁決，都係無效嘅，如果出現咁嘅情形的話，請首席陪審員用字條嘅形式通知法庭，話出現四對三嘅局面，但係不必說明同意或者係反對某項裁決嘅人數，你唔使話幾多個同意，幾多個不同意，唔需要講，凈係要『四三』，咁就明白㗎喇，到時我就會作出進一步嘅指示。」" } }, { "doc_id": 9, "seg_id": 35, "translation": { "en": "24.\tAfter the jury had retired, apart from their requesting to review the applicant’s cautioned video-recorded interview, there was no further note, demand or request for assistance from them. Such position remained the same regardless of whether they were ordered to suspend their discussions and rest at the court at about 8 pm the same day or they were directed by the trial judge to continue discussions at about 9:30 am the following day. The jury eventually reached a verdict at 12:19 pm on the 17th, and nothing happened prior to that. In other words, in this case, unlike in Court, there was no evidence or likelihood of pressure on the jury. As the trial judge, in making an order for the jury to stay overnight, mentioned that they might spend any time they considered necessary in the deliberation of verdict, we can only presuppose that the jury were acting in accordance with what the judge said (note the underlined below):", "zh-HK": "至於退庭之後，除了在12月16日下午4時10分要求重看申請人的警誡錄影會面之外，陪審團便再沒任何信息、要求或請求協助。這個情況，無論是同日晚上約8時他們被原審法官下令暫停商討即時在法院休息，抑或於翌日早上約9時30分被原審法官指示繼續，都是一樣的。陪審團最終於17日中午12時19分達致裁決，之前也沒有任何波折。換言之，本案完全沒有Court案所指的、陪審團曾感受到壓力的跡象和證據。由於原審法官在下令陪審團留宿時提到，他們可花任何他們認為需要花的時間於商討裁決的事上，本庭只能假設陪審團在按照法官的話行事（留意有下劃線的部分）：" } }, { "doc_id": 9, "seg_id": 36, "translation": { "en": "\t係，咁多位陪審員，咁就喺公義嘅大前提底下，陪審員係可以用你哋需要幾多時間就用幾多時間，嚟到去考慮你哋嘅裁決，同埋係一個好盡責、盡心咁樣去考慮你嘅裁決，而盡責、盡心去考慮裁決就係話，亦都包括，當你哋攰嘅時候，唔應該再繼續，唔應該再繼續，咁所以而家為咗確保你哋唔係喺一個已經攰咗，因為你肉體可能攰，冇乜運動過，但係腦筋始終會攰嘅，你哋由11點37，我計住嘅，11點37分開始已經，除咗食晏嘅時候，你雖然食緊晏冇討論，但係你自己個腦裡面有陣時控制唔到，可能都會諗，所以都係會攰嘅，呢個我覺得會係嘅，咁所以我相信--同埋係過去有案例，亦都有一啲嘅指引、建議就係話，到咗一個晚上八點左右嘅時間，法官就應該指示陪審團要休息，畀腦筋休息，嚟到確保你哋做一個裁決嘅時候，係一個最清晰、最盡責嘅時候做呢個裁決，咁就當然喇，我就會叫你哋去--我哋，我哋叫你休息，咁就你哋八點零鐘，大家成年人，未必咁快瞓得著，咁但係瞓唔著嘅時候，都唔可以討論，唔可以討論，唔可以睇文件，唔可以帶啲文件去睇，唔可以再喺度諗--對唔住，諗呢個好難控制，唔可以在你哋之間去討論，尤其是唔好討論，呢個好緊要嘅，唔好討論，咁跟住然後，呢個明白嘅，即係有陣時幾個鐘頭嘅考慮，以一個盡責嘅陪審團嚟講，未必係足夠嘅時間，未必係足夠嘅時間…..」\t“\tRight, members of the jury, justice presupposes that you, jurors, may spend as much time as you need in deliberating your verdict – and deliberating your verdict conscientiously. For deliberating your verdict conscientiously, it also includes that when you are tired, you should not continue -- you should not continue. And therefore, now, to ensure that you are not tired, as you may have got tired physically without much exercise -- but you have got tired mentally in any event – you -- from 11:37, that I have been working out, from 11:37 onwards, except when having lunch -- you did not deliberate while having lunch, but for a time you could not help it and you might be thinking about it, so you would get tired. I think that would be the case. And therefore, I believe – and there are authorities in which there is a guide or there are some suggestions that when it comes to about 8 pm, the judge should direct the jury to rest, rest the mind to ensure that you are at your clearest and most conscientious when you return your verdict. Of course, I will ask you – we, we ask you to rest. As adults, you may not necessarily fall asleep that soon shortly after 8 pm. But even when you cannot sleep, you are not allowed to discuss; you are not allowed to discuss; you are not allowed to read documents; you are not allowed to bring with you documents for reading; you are not allowed to think about it – sorry, it is quite difficult to control. You are not allowed to discuss among yourselves, no discussions, in particular, and this is very important, no discussions. Then, this is understandable, that is, a few hours’ consideration, for a conscientious jury, may not necessarily be sufficient; there may not necessarily be sufficient time…”", "zh-HK": "「" } }, { "doc_id": 9, "seg_id": 37, "translation": { "en": "25.\tThis Court appreciates that Mr Ng in fact argued the contrary that there was pressure on the jury. What he meant was that the indifference of the trial judge caused the jury, who were unable to reach a valid verdict, to give in as a result of suffering over a long period of time, and reluctantly made a decision against the applicant. The problem is that what has been put forward, as a matter of fact, is not consistent with what is shown in the bundle. In our view, the directions given by the trial judge in his summing-up were entirely sufficient to inform the jury that they were to inform the court of any difficulties. The fact that the jury did not do so is proof that they had no such need. Mr Ng asserted that the issue concerned was simple, and if there were no problem, the jury could not possibly have spent about ten hours discussing the verdict. However, this is his speculation. As the defence counsel in the trial, he never made submissions on this point to the judge while the verdict was pending. In the experience of the three members of this Court, there is simply no concrete yardstick on the length of retirement of a jury. Whilst a discussion of about ten hours in this case, in our view, is quite long on the face of it, it is not sufficient to raise doubt in view of the situation as a whole.", "zh-HK": "本庭明白，吳大律師指陪審團有壓力，其實是一個逆向式的爭辯。他的意思是，原審法官不聞不問，令本來無法達致有效裁決的陪審團，在長時間的煎熬下放棄原則，勉強地作出了一個不利申請人的決定。問題是，這個說法，實在和卷宗上所顯示的情況不符。本庭認為，原審法官在《導詞》中發出的指引，完全足以令陪審團知道須於出現困難時向法庭求助。陪審團沒有這樣做，就是他們沒有這個需要的證明。吳大律師力稱，本案涉及的議題簡單，如無問題的話陪審團不可能花上約十小時來商討裁決，但這實屬他個人的臆測。作為原審時的辯方大律師，他從未在等候裁決期間就這一點向法官陳詞。綜合本庭三位法官的經驗，陪審團退庭時間的長短，根本沒有明確的準則可言。本庭認為，在本案，約十小時的商討表面上是有點長，但根據整體情況看來卻不足以令人生疑。" } }, { "doc_id": 9, "seg_id": 38, "translation": { "en": "The applicant’s ground of appeal was not established. We dismissed his application.", "zh-HK": "申請人的上訴理由不成立，本庭駁回他的申請。" } }, { "doc_id": 9, "seg_id": 39, "translation": { "en": "由法律援助署委派韓俞律師行轉聘吳政煌大律師代表\tAlex Ng, instructed by C O Yu & Co, Solicitors, assigned by the Legal Aid Department, for the applicant", "zh-HK": "申請人：" } }, { "doc_id": 9, "seg_id": 40, "translation": { "en": "由律政司高級檢控官周天行先生代表\tAnthony Chau, Senior Public Prosecutor, of the Department of Justice, for the respondent", "zh-HK": "答辯人：" } }, { "doc_id": 10, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 10, "seg_id": 2, "translation": { "en": "The charges", "zh-HK": "控罪" } }, { "doc_id": 10, "seg_id": 3, "translation": { "en": "The Applicant was charged with two offences:", "zh-HK": "申請人被控兩項控罪：" } }, { "doc_id": 10, "seg_id": 4, "translation": { "en": "Common assault, contrary to the common law;", "zh-HK": "普通襲擊罪，違反普通法；" } }, { "doc_id": 10, "seg_id": 5, "translation": { "en": "Causing grievous bodily harm to another person with intent, contrary to section 17(a) of the Offences against the Person Ordinance (Cap. 212 of the Laws of Hong Kong).", "zh-HK": "有意圖而導致身體受嚴重傷害罪，違反《侵害人身罪條例》（香港法例第 212 章）第17(a) 條。" } }, { "doc_id": 10, "seg_id": 6, "translation": { "en": "Charge 1 alleged that the Applicant assaulted the 1st witness Wong Sheung Ling (王嫦玲) (PW1) on 26 May 2006. Charge 2 alleged that the Applicant assaulted the 2nd witness Lee Kang Chuen (李鏡泉) (PW2) and bit off the tip of his right thumb.", "zh-HK": "第一項控罪指申請人於 2006 年 5 月 26 日襲擊控方第一証人王嫦玲（‘第一証人’）。第二項控罪指申請人在同日襲擊第二控方証人李鏡泉（‘第二証人’），咬斷他的右拇指指頭。" } }, { "doc_id": 10, "seg_id": 7, "translation": { "en": "After trial before Deputy District Judge Yim, the Applicant was convicted on both charges and sentenced to 21 months’ imprisonment: 14 days’ imprisonment on Charge 1 and 21 months’ imprisonment on Charge 2, with the two sentences to run concurrently. The Applicant applied for leave to appeal against the convictions and sentences.", "zh-HK": "案件經區域法院暫委法官嚴舜儀審理後，申請人被裁定罪名成立及被判監 21 個月：第一項罪行被判 14天監禁；第二項罪行被判 21 個月監禁，兩項刑期同期執行。申請人就定罪及刑期提出上訴許可申請。" } }, { "doc_id": 10, "seg_id": 8, "translation": { "en": "We granted leave to appeal against the convictions and, treating the application as the appeal itself, quashed the convictions on both charges and made no order for a retrial. We now set out the reasons for our judgment.", "zh-HK": "本庭批准針對定罪的上訴許可申請、視申請為正式上訴、撤銷兩項定罪及不命令案件重審。以下是本庭的判案理由。" } }, { "doc_id": 10, "seg_id": 9, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 10, "seg_id": 10, "translation": { "en": "The prosecution case revealed that PW1 was a female driver of the Kowloon Motor Bus Company. On 26 May 2006, the Applicant, pushing a baby cart (‘the cart’) on which there was a baby, boarded a bus driven by PW1. For safety reasons, PW1 repeatedly requested the Applicant to scoop the baby out of the cart and fold up the cart. The Applicant, however, ignored her requests. A male passenger on board the bus (i.e. PW2), who heard the Applicant answering PW1 by saying ‘I know’ in Putonghua, relayed in Putonghua to the Applicant what PW1 had said, but the Applicant still made no response.", "zh-HK": "控方案情顯示第一証人為九龍巴士公司的女車長。2006 年 5 月 26 日申請人手推着一架載有一名嬰兒的嬰兒手推車（‘手推車’）乘搭由第一証人駕駛的巴士。第一証人以安全為由多次要求申請人抱起嬰兒及將手推車摺起，但申請人沒有理會。由於當時車上有一名男乘客（即第二証人）聽到申請人在回應第一証人時以普通話說：「知道」，他便以普通話向申請人複述第一証人說的話，但申請人仍然沒有作出回應。" } }, { "doc_id": 10, "seg_id": 11, "translation": { "en": "Later, the Applicant realized that if he did not fold up the cart as requested by PW1, she would not start the bus. He therefore scooped up the baby and folded up the cart. However, after the bus started to move, the Applicant unfolded the cart and put the baby on it. The Applicant also pressed his arm against PW2 who was next to him. PW2 managed to push away the Applicant only after 1 to 2 minutes. The Applicant then walked to a location beside PW1 and jotted down her particulars, ignoring the fact that the baby was standing up on the cart. Noting that the baby was standing on the cart and that there was jostling between the Applicant and PW2, PW1 stopped the bus, called the police and arranged for the passengers to take another bus.", "zh-HK": "申請人後來意會到如他不應第一証人的要求把手推車摺起的話，第一証人是不會開車的，他於是抱起嬰兒及摺起手推車。可是，當巴士啟程後，申請人再次打開手推車及將嬰兒放在手推車上。申請人更用手臂壓着站在他旁邊的第二証人。第二証人需要一至兩分鐘才能成功推開申請人。申請人之後走到第一証人旁用筆記記下她的資料，其間他沒有理會嬰兒在手推車上起來。第一証人因看見嬰兒站立在手推車上及申請人和第二証人有身體踫撞而停駛、報警及安排車上的乘客轉乘另一輛巴士。" } }, { "doc_id": 10, "seg_id": 12, "translation": { "en": "Shortly afterwards, another bus arrived. The passengers on PW1’s bus, including the Applicant, alighted and boarded the other bus. PW1 tried to intercept the Applicant and stop him from boarding the other bus but was pushed by him onto the ground. She got back on her feet and said to the Applicant that he was not allowed to board the bus because she had already called the police. However, the Applicant pushed her away again, and she tried to keep her balance by grabbing the Applicant’s briefcase. The Applicant then shoved her hard, as a result of which she fell onto the ground again (Charge 1). This time the other passengers helped her regain her footing.", "zh-HK": "不久另外一部巴士駛至，車上包括申請人在內的乘客下車轉乘該輛巴士。第一証人上前攔截申請人及阻止他登車但被申請人推倒在地上。第一証人從地上站立起來後對申請人說他不可以登車，因為她已報警，但申請人再次用手推開她，令她失去平衡，她為了保持身體平衡就用手執着申請人的公事包，申請人使勁地推撞她，令她再次跌倒在地上（第一項控罪），第一証人這次跌倒後需要其他乘客把她扶起來。" } }, { "doc_id": 10, "seg_id": 13, "translation": { "en": "Having witnessed the Applicant pushing PW1 onto the ground, PW2 immediately came up and grabbed the Applicant’s clothing by the chest in an attempt to stop him from leaving the scene. The Applicant instantly grasped PW2’s right hand and then put PW2’s right thumb in his mouth and bit it. PW2 felt pain and tried to push the Applicant’s head away, but the Applicant did not let go. Eventually, he bit off PW2’s right thumb (Charge 2).", "zh-HK": "第二証人看到申請人推倒第一証人後立刻上前抓着申請人胸前的衣服以圖阻止他離開現場。申請人即時以雙手捉着第二証人的右手，並將他的右拇指放進口咬。第二証人感到痛楚，用手推開申請人的頭，但申請人仍不放開口，最後申請人咬斷了第二証人的右拇指（第二項控罪）。" } }, { "doc_id": 10, "seg_id": 14, "translation": { "en": "PW3 was another passenger on board the bus. On her testimony, the Applicant pressed against PW2 with his left elbow on the bus and the latter managed to get free only after some struggle. According to PW3, when the Applicant was getting off the bus carrying the baby and the cart, PW1 approached him and said that she had already called the police. She also asked the other passengers to help intercept him. PW1 grabbed the Applicant’s hand.", "zh-HK": "控方第三証人（‘第三証人’）是巴士上的另外一名乘客，她說申請人在巴士上曾經用左手肘壓着第二証人。第二証人幾經掙扎才可脫身。第三証人指申請人抱着嬰兒及提着手推車下車，這時第一証人走到他的面前說她已經報警，並呼籲其他乘客協助她截停申請人。第一証人用手抓着申請人的手。" } }, { "doc_id": 10, "seg_id": 15, "translation": { "en": "PW3 further said that PW1 fell onto the ground possibly because she was shoved by the Applicant, but PW3 did not see how PW1 fell down. PW3 also said that, at the front door of the other bus which arrived subsequently, PW1 grabbed the Applicant’s briefcase in an attempt to stop him from boarding the bus and PW1 then fell onto the ground. And at that moment, PW2 stretched out his finger(s) and rebuked the Applicant for shoving PW1 and causing her to fall onto the ground, and the Applicant grabbed PW2’s hand and bit off his thumb.", "zh-HK": "第三証人說第一証人可能是被申請人推撞，因而跌倒在地上，但她看不到第一証人如何跌倒。第三証人又說第一証人在後來到達的巴士前門位置抓着申請人的公事包以圖阻止他登車，之後第一証人就跌倒在地上。第三証人說第二証人這時伸出他手指責備申請人推跌第一証人，申請人用手捉着第二証人的手及咬斷他的手指。" } }, { "doc_id": 10, "seg_id": 16, "translation": { "en": "Following the incident, PW1 and PW2 were sent to the hospital for treatment. PW1 was diagnosed to be suffering from contusion to her right shoulder blade, low back and right leg. As for PW2, the tip of his right thumb was almost detached, and the site sustained bone fracture and required correction, amputation as well as skin graft for the purpose of covering the injured area. PW2 was hospitalized for 9 days. The tip of his thumb suffered from numbness and the dexterity of his fingers was reduced. After discharge, he had to undergo physiotherapy and occupational therapy.", "zh-HK": "第一証人及第二証人後來被送往醫院接受治療。第一証人被診斷為右肩胛下背及右腿挫傷；而第二証人的右拇指指頭幾乎脫落，末端指頭骨折，需要進行修正、切斷手術及皮膚移植手術以覆蓋受損部位。第二証人留院九天，他的指尖無感覺，手指靈活度下降，他出後後需要繼續接受物理治療及職業治療。" } }, { "doc_id": 10, "seg_id": 17, "translation": { "en": "The Applicant’s defence", "zh-HK": "申請人的答辯" } }, { "doc_id": 10, "seg_id": 18, "translation": { "en": "The Applicant elected to give evidence at trial. He said that PW1 spoke to him after he boarded the bus, but he did not understand Cantonese. He later realized that PW1 wanted him to scoop the baby out of the baby cart and fold up the cart. He therefore picked up the baby from the cart. However, as he was holding the baby with both hands, he was unable to fold up the cart, and so he had no alternative but to put the baby back to the cart. On seeing this, PW1 pulled up when the red traffic light was on and then told the Applicant loudly to fold up the cart. The Applicant was not happy with PW1’s attitude and walked to the location beside her to jot down her particulars for the purpose of making a complaint in the future. PW1 was angry in reaction to that. Subsequently, PW1 drove the bus into a bus stop. After the bus came to a halt, PW1 again asked the Applicant to fold up the cart, but he did not know what to do. At that moment, PW2 scolded him in Cantonese. The baby, who was awakened by the voice, stood up on the cart and cried. The Applicant then heard PW1 say that she had already called the police. After the bus stopped, the Applicant alighted from it to board the other bus that had arrived. He admitted that PW1 did fall onto the ground twice but asserted that he had never pushed her away or made her fall because his hands were occupied in holding the baby and pushing the cart. Nor, he said, did he intend to hurt PW1. According to the Applicant, before her first fall, PW1 did grab his sleeve and he turned in an attempt to get away from her. He then saw her fall onto the ground. Later, when he was about to board the other bus, PW1 again approached him and grabbed his briefcase, causing the strap thereof to fall from his shoulder to his elbow. PW1 then let go of her grip. After he boarded the bus, the Applicant saw PW1 lying on the ground. When PW1 got back on her feet after her second fall, the Applicant had in fact boarded that bus already. However, on seeing PW1 dumping his cart on the road, he got off the bus. At that juncture, PW2 came up to him, shoved him rashly and then attacked him with the fist. The Applicant carried the baby in his arm and held the briefcase with his other hand to shield the baby’s head from attack. PW2 started by hitting the Applicant on the shoulder and chest. He then grabbed the Applicant’s suit collar with one hand and assaulted him with the other hand. After a moment, when the suit became loose amidst the struggle, PW2 grabbed the Applicant’s tie while continuing to assault him. In the course, on the verge of suffocation, the Applicant instinctively opened his mouth, and PW2 assaulted his mouth with his hand, which he thrust into the Applicant’s mouth. Being aware that PW2’s fingers were in his mouth, the Applicant bit PW2’s fingers in self-defence, but PW2 kept hitting him with his fist.", "zh-HK": "申請人作供自辯。他指當他登上巴士後第一証人對他說話，但他不明白廣東話，後來才意會到第一証人要他抱起嬰兒和收起手推車。他於是抱起嬰兒，但因雙手抱着嬰兒而無法收起手推車，故此無奈地把嬰兒放回手推車上。第一証人見狀就在交通燈亮起紅燈時停車，然後大聲叫他摺起手推車。他因不滿第一証人的態度而走到她身旁記下她的資料以便日後作出投訴。第一証人當時的反應是忿怒。之後，第一証人將巴士駛進一個車站，停車後再次要求他摺起手推車，但他不知道應該怎麼辦。就在這個時候，第二証人用廣東話罵他，嬰兒此時被他的聲音吵醒，並站立在手推車上哭泣。申請人之後聽到第一証人說她已報警。申請人在巴士停下來後下車及登上後來的一輛巴士。申請人承認第一証人曾經兩次跌倒在地上，但他說他的雙手既要抱着嬰兒又要提着手推車，他是沒有用手推開或摔倒第一証人的；他也沒有傷害第一証人的意圖。申請人說第一証人在第一次跌倒之前曾抓着他的衣袖，他就轉身以圖擺脫她，之後他看見她跌倒在地上。申請人又指當他準備登上後來到達的巴士時，第一証人再次上前抓着他的公事包，致令公事包的揹帶從他的肩膊跌落他的手踭位置。第一証人之後放開手。當申請人登上後來到達的巴士後，他看見第一証人躺在地上。當第一証人第二次跌倒後再站立起來時，申請人本來已經登上後來到達的巴士上，但他在看見第一証人將他的手推車丟掉在馬路上而再次下車。此時第二証人出現在他面前，胡亂地推撞他，繼而以拳頭襲擊他，他當時以一隻手抱着嬰兒，另一隻手就拿起公事包遮擋着嬰兒的頭部。第二証人先毆打申請人的肩膊及胸口，繼而用另一隻手執着申請人穿着的西裝衣領，再以另一隻手來毆打他，後來因西裝被扯鬆就抓着他的領帶，繼續毆打他，其間申請人因窒息而不自覺地張開了口，第二証人此時用手打申請人的口，並伸進申請人的口腔內，申請人意識到第二証人的手指在他口腔內，出於自衛他咬第二証人的手指，但第二証人不斷用拳頭擊打他。" } }, { "doc_id": 10, "seg_id": 19, "translation": { "en": "Deputy Judge Yim’s verdict", "zh-HK": "嚴法官的裁決" } }, { "doc_id": 10, "seg_id": 20, "translation": { "en": "Deputy Judge Yim accepted the evidence of PW1, PW2 and PW3 on the incident and rejected the Applicant’s defence.", "zh-HK": "嚴法官接納第一、第二及第三証人對有關事件的証供。嚴法官拒絕接納申請人的答辯理由。" } }, { "doc_id": 10, "seg_id": 21, "translation": { "en": "Deputy Judge Yim ruled that, when the Applicant first shoved PW1 and made her fall, he was already aware that the force he used was strong enough to make her fall and get hurt. In spite of that, he then even more forcefully pushed PW1 onto the ground. Deputy Judge Yim therefore found that, when he shoved PW1 for the second time, he deliberately applied stronger force, knowing that it would inflict more serious injuries on PW1. That was an intentional and malicious act. Deputy Judge Yim further found that the Applicant had inflicted grievous bodily harm on PW2 by biting off his thumb tip.", "zh-HK": "嚴法官裁定申請人在第一次推撞第一証人致令她跌倒時已經知道他所使出的力度是足以令第一証人跌倒受傷的，但他之後還加大力度去推跌第一証人。嚴法官裁定申請人在這一次推撞第一証人時是故意使出更大的力度，並知道此力度會使第一証人受更重的傷害，這是一項故意及存有惡意的行為。嚴法官更裁定申請人咬斷第二証人的指頭是嚴重傷害第二証人的身體。" } }, { "doc_id": 10, "seg_id": 22, "translation": { "en": "Fresh evidence: Cheung Hon Man", "zh-HK": "新的証供：張漢文" } }, { "doc_id": 10, "seg_id": 23, "translation": { "en": "Cheung Hon Man (張漢文) worked in the vicinity of the scene of the incident. He was passing by the scene on a bicycle and witnessed what happened. On the following day, he read Sun Daily and noticed that its report about the incident was at variance with what he had witnessed. He immediately called Sun Daily, relating what had actually happened and asking the newspaper to report the truth. However, Sun Daily replied that the arrested man had already given to the police an account of the incident, the content of which was the same as what Mr. Cheung had witnessed, and that Cheung need not worry about it.", "zh-HK": "張漢文是一名在案發地點附近工作的人士。他當時騎自行車到達現場，並目擊案發經過。翌日，當他閱讀太陽報有關該事件的報導時發現報導內容與他目擊的事實不符，他即時致電太陽報說出實情，並要求該報作出真實報導，但太陽報回覆他說案中被警方拘捕的男子已經向警方交待了案情，而內容與張先生所看到的情況是相同的，並叫他不用擔心。" } }, { "doc_id": 10, "seg_id": 24, "translation": { "en": "In early December 2006, Mr. Cheung read Sun Daily and came across another report about the case. The case was at that time being tried, but the content of the report was completely different from what he saw on the day in question. He therefore called Sun Daily again, and the reply he received was that the report was prepared on the basis of information provided by the court.", "zh-HK": "2006 年 12 月初張先生再次在太陽報看到有關這宗案件的報導。案件當時已進入審訊階段，但該報導的內容與他當日目睹的情況完全不一樣，他於是再次致電太陽報。太陽報給他的回覆是有關的報導是根據法庭提供的資料而撰寫的。" } }, { "doc_id": 10, "seg_id": 25, "translation": { "en": "Subsequently, Mr. Cheung purchased a copy of Apple Daily and read its report about the case. He then called Apple Daily and related to a staff member thereof what he saw on the day in question. He was then told to contact by phone the staff of Court No. 23 on 7/F of the District Court Building. Subsequently, he got in touch with a clerk of the District Court, who told him that as the case was being tried, he should lodge an appeal after the conclusion of the trial.", "zh-HK": "張先生之後購買一份蘋果日報，閱讀有關該案的報導。之後他致電蘋果日報及將當日目睹事件的經過告訴該報的一位職員，該名職員叫他親自致電區域法院七樓23庭與法庭職員聯絡。他之後聯絡上區域法院的的一名書記。該書記告訴他由於案件正在審理中，叫他在審訊完畢後提出上訴。" } }, { "doc_id": 10, "seg_id": 26, "translation": { "en": "On 23 December 2006, Mr. Cheung learnt from Apple Daily that the trial had concluded and sentences had been passed. However, the content of the report was different from what he saw on the day in question. Thereafter he received a phone call from the solicitor acting for the Applicant. He told that solicitor what he had witnessed and later, at the request of the solicitor, provided information to the police. On 28 December 2006, in the company of a solicitor, Mr. Cheung went to Sheung Shui Police Station and gave a statement, the content of which is reproduced below:", "zh-HK": "2006 年 12 月 23 日張先生從蘋果日報獲知案件已經審結，並作出判刑，但該報導的內容與他目睹的事發經過不同。 張先生其後接到代表申請人的律師的來電，他將目擊的事實告訴該名律師，並應律師的要求向警方提供資料。2006 年 12 月 28 日張先生在律師陪同下到上水警署提供口供。以下是他所作出的口供內容：" } }, { "doc_id": 10, "seg_id": 27, "translation": { "en": "Sometime after 1 pm that day, having finished my lunch, I was cycling along Pak Wo Road bicycle track in the direction of Fanling on my way back to the school for work. When I reached the bus stop off the school, I saw a stationary 273A bus. A man in suit was standing at the bus stop and pushing a baby cart on which there was a baby. He was surrounded by 3 or 4 persons who scolded him in foul language. The front and middle doors of the bus were both open. Some of the passengers on the lower deck also scolded the man in suit. However, I have no idea how and why they scolded him. I was about 4 metres away from him. About 2 minutes later, another 273A bus arrived. The driver of the first bus told the passengers on board that the police had been called, and she asked them to board the other bus which was behind her bus. After all the passengers from the bus in front had boarded the other bus, the man in suit pushed the baby cart towards the other bus and lifted it with both hands to get on the bus through the front door. After boarding the bus, he pushed the cart to the centre of the bus. At that moment, the driver of the first bus, who had been chasing after the man, got onto that bus. She pulled the cart to get it off the bus through the front door, and also said that the police had been called and the man was not allowed to go. The man in suit pulled the other end of the cart. When the driver stepped onto the ground while pulling the cart, she got wrong footed, lost her balance and went down on her knees. At that juncture, she shouted that the Mainland guy was pushing and assaulting her. She then regained her footing and continued to pull the cart to get it off board. Eventually, both the cart and the man in suit were off onto the ground. The driver continued to pull the cart to the roadside, and I saw her tripping over the concrete barrier on the roadside and falling flat on the ground. She again shouted that she was assaulted by the Mainland guy. Three to 4 male onlookers then approached the man from the roadside and took him from the road to the pavement. I then carried the cart from the road to the pavement. And then I saw one of the men grabbing the man in suit from behind and striking a blow with his left hand from behind towards the man’s lower back, while two other men were grabbing the man’s clothing by the chest and his right arm respectively. I was about one metre behind the man to his left. Seeing that the baby had stood up on the cart, I immediately scooped up the baby. As the men continued to assault the man in suit, I shouted at them, saying that they should stop the assault in the presence of a child. They then stopped. The man in suit then came to me and I passed the baby back to him. At the same time, I saw that one of the men, whose hand was bleeding, still wanted to kick the man in suit. I shouted at him, telling him to stop. After that, the parties calmed down. I took a look at the bleeding man and noticed that his thumb was broken. As the people involved had calmed down and the police had been called, and I was in a hurry back to work, I then left the scene!", "zh-HK": "係當日下午 1 點多時，我踩住我部單車沿百和路單車徑向粉嶺方向剛食完飯打算返學校工作，當我踩到學校對出巴士站時，我就見到當時站停住一部 273A 路線巴士，而巴士站當時企住一個穿著西裝男子，手推住一部BB 車，而BB 車上有一小孩，當時西裝男子被三、四名男女圍住並被用粗口指罵，而當時巴士前門及中門都打開住，下層嘅部份乘客亦向住西裝男子指罵，但佢地閙嘅內容及原因我就唔係咁清楚，當時我與西裝男子距離約 4 米左右，大約兩分鐘之後，後面再有另一部 273A 巴士到來，咁第 1 部巴士嘅司機就同車上乘客講已報咗警，並叫佢地去後面巴士上車，當前面巴士嘅乘客全部上咗後面巴士之後，西裝男子就推住BB車去到後面巴士，跟任就用雙手抬起 BB 車，從前門上車，上咗車之後，西裝男子將 BB 車推到車中間位置，這時第一部巴士司機就追上並上咗後面巴士，跟住司機就拉住 BB 車，從前門拉返 BB 車落車，並話已經報咗警唔比走，而西裝男子亦拉住 BB 車另一邊，當司機拉住 BB 車行到落地下時，司機叉錯腳失平衡跪在地上，這時個司機就大叫大陸仔推佢打佢，跟住司機起翻身，繼續拉住 BB 車落車，最後 BB 車同西裝男子都落到地，再跟住司機繼續拉住 BB 車埋路邊，這時我就見司機絆倒路邊石壆，整個人就瞓在地上，這時司機又再大叫大陸仔打佢，跟住在路旁有3 至 4 個圍觀嘅男子上前，將西裝男子從馬路捉上行人路，而我當時就將在馬路上嘅 BB 車抬回行人路上面，之後我就見到其中一名男子從後扼住西裝男子，並用左手從後打向西裝男子後腰位置，而有一人就手執著西裝男子胸口衣物，另一人就捉住西裝男子右手，而當時我與西裝男子約一米距離，在佢左後方，再後我見 BB 車上嘅小孩企咗起身，隨即我就一手抱起 BB，當我抱起小孩之後，我就見佢地再打西裝男子，隨即我就喝止話有細路，唔好再打，跟住佢地就已經停咗；西裝男子就行向我度，我就將抱住嘅小孩交返比西裝男子，與此同時，我見其中一名手部流緊血嘅男子，繼續想用腳踢西裝男子，但我隨即喝止，其後雙方都已經平靜，我亦有睇過手部流血嘅男子，見佢手指公斷咗，由於當時已經平靜，加上已經報咗警，我亦趕時間返工，所以我跟住就離開咗喇！’" } }, { "doc_id": 10, "seg_id": 28, "translation": { "en": "In the same statement, Mr. Cheung also answered the following questions regarding the case:", "zh-HK": "張先生在該份口供中亦解答了以下有關案件的提問：" } }, { "doc_id": 10, "seg_id": 29, "translation": { "en": "Q4:Did you clearly see how the man, who had his thumb broken, got injured?", "zh-HK": "問 4 ：你有無清楚見到斷手指嘅男子係點樣受傷架？" } }, { "doc_id": 10, "seg_id": 30, "translation": { "en": "A4:I did not see that because the man in suit had his back towards me and therefore blocked my sight.", "zh-HK": "答 4 ：因為西裝男子背住我，所以遮咗我視線，我睇唔到。" } }, { "doc_id": 10, "seg_id": 31, "translation": { "en": "Q5:In the course of the incident, did you hear the man in suit say anything?", "zh-HK": "問 5 ：係過程裏面，你有無聽到穿西裝男子講過任何說話？" } }, { "doc_id": 10, "seg_id": 32, "translation": { "en": "A5:Throughout the incident, the man in suit said a few times in Putonghua, ‘you Hong Kong people are bullying me, a Mainlander’.", "zh-HK": "答 5 ：整個過程裡面，西裝男子講過幾次話「你地香港人欺負我呢個大陸人」，用國語講。" } }, { "doc_id": 10, "seg_id": 33, "translation": { "en": "Q6:You said the driver pulled the baby cart from the second bus onto the ground. Does ‘the ground’ refer to the road or the pavement?", "zh-HK": "問 6 ： 當司機將 BB 車從第二部巴士拉到地面時，地面係指馬路還是行人路呀？" } }, { "doc_id": 10, "seg_id": 34, "translation": { "en": "A6:The road.", "zh-HK": "答 6 ：馬路。" } }, { "doc_id": 10, "seg_id": 35, "translation": { "en": "Q7:Do you have anything to add?", "zh-HK": "問 7 ：你仲有無野要補充呀？" } }, { "doc_id": 10, "seg_id": 36, "translation": { "en": "A7:When the man in suit was being assaulted, he was in fact got hold of by others. He could not have grabbed someone with both hands and bitten him as described in the newspaper. Nor had he pushed the driver onto the ground. For this reason, I am coming forward to have the facts clarified with the police.", "zh-HK": "答 7 ：西裝個男子比人打果陣時根本比人捉住，無可能如報紙上面所講佢用雙手捉住人咬，而且都無推跌過司機，就因為叻樣我先出來向警方澄清。’" } }, { "doc_id": 10, "seg_id": 37, "translation": { "en": "Mr. Cheung gave another statement to the police on 21 January 2007, in the course of which he gave the following answers to questions concerning the circumstances of the incident:", "zh-HK": "張先生在 2007 年 1 月 21 日再向警方提供另一份口供，其中有關案件發生情況的提問，張先生作出以下的答案：" } }, { "doc_id": 10, "seg_id": 38, "translation": { "en": "Q1:When you first contacted the solicitor handling this case, what did you say to him in giving an account of what you saw?", "zh-HK": "問 1：係你第 1 次接觸呢宗案件嘅律師時候，你點樣向律師交待呢宗案件所睇到嘅野呢？" } }, { "doc_id": 10, "seg_id": 39, "translation": { "en": "A1:I told the solicitor that on that day I was riding a bicycle to school after lunch. Upon reaching the 273A bus stop off the school, I saw the Mainland guy pushing the baby cart with a baby in it. He was surrounded by 3 or 4 persons, who scolded him as a Mainland guy. Then the second bus arrived and the passengers left the first bus and boarded the second bus. The Mainland guy was the last one to board the second bus. The driver of the first bus then went to the second bus, intending to move the baby cart off the bus. When she was moving the baby cart onto the ground, she lost balance and fell. She accused the Mainland guy of hitting her, and then other people went up to him and hit him. During that time, when the driver tried to pull the baby cart back onto the pavement, in the course of which she fell onto the ground again. Then someone grabbed the Mainland guy and dragged him onto the pavement, where he was hit with fists and legs. At that moment, I saw the baby standing and crying on the cart, and so I went up and scooped up the baby. Having done so, I told the group to stop fighting in the presence of a baby. When the Mainland guy approached me, I saw blood at the corner of his mouth. Then someone tried to rush over to hit the Mainland guy again. I noticed that the thumb of that person was broken and bleeding, and I shouted at him to stop him. Subsequently, as they had stopped fighting, I went back to school for work!", "zh-HK": "答 1：我就向個律師講話我果日食完飯之後踩住架單車返學校，當去到學校出面 273A 號巴士站時，就見到個大陸仔推住架 BB 車，上面有個 BB，我見個大陸仔比 3 至 4 個人圍住，並比人閙大陸仔，跟住後面就有架巴士嚟喇，之後啲乘客就轉車，而大陸仔就最後一個上第 2 架巴士，跟住第 1 架巴士嘅司機就去第 2 架巴士，並打算抬返架 BB 車落車，就係抬架 BB 車落地時，巴士司機就失平衡跌咗落地，跟住司機就話大陸仔打佢，跟住就有其他人走埋去打大陸仔，其間巴士司機打算將 BB 車拉回上行人路時巴士司機又再一次跌咗係地上，跟住有人扼住大陸仔拉上行人路再而有人用拳同腳打大陸仔，就係果個時時候，我見 BB 車上嘅 BB 企咗係 BB 車上面，並且喊，所以我就埋去抱起 BB，我抱起咗 BB 之後我就叫佢地唔好打有 BB 係度，當大陸仔行近我時，我就見大陸仔口角有血，之後有人想沖過來想再打大陸仔時，我就見果個人隻手指斷咗，並流血，我又再次喝止，之後我見佢地無再打，我就返咗學校做野喇！’" } }, { "doc_id": 10, "seg_id": 40, "translation": { "en": "Q10:Can you tell me the respective positions of all the parties involved when AP was being assaulted?", "zh-HK": "問10：可唔可以講下 AP 被人打時各人嘅位置呀？" } }, { "doc_id": 10, "seg_id": 41, "translation": { "en": "A10:At that time, the Mainland guy was facing Sheung Shui Government Secondary School. To the Mainland guy’s right, someone was grabbing his arm. Another person was grabbing his neck from behind, and a third person was hitting him from the left.", "zh-HK": "答10：當時大陸仔面向上水官立中學，大陸仔右邊有人捉住拒手，後面再有一人扼住佢條頸，左邊就有一人打大陸仔。’" } }, { "doc_id": 10, "seg_id": 42, "translation": { "en": "On 29 November 2007, i.e. the first day of hearing of the present appeal, Mr. Cheung told us how he contacted the newspaper and court staff and eventually went to the police station to give statements. We adjourned the hearing and ordered the police to investigate the incident in light of Mr. Cheung’s account. In response to the investigation, Sun Daily indicated that it would not provide information to the police unless ordered by the court to do so. A reporter at Apple Daily’s court news unit revealed to the police that he was told by his company that Mr. Cheung had previously called the company, saying that he had read newspaper reports on the circumstances of the wounding case and the outcome of the court case against the Applicant but that the circumstances were different from what Mr. Cheung had witnessed at the scene. The newspaper therefore passed Mr. Cheung’s phone number on to the reporter so that he could contact Mr. Cheung direct in respect of the matter. That reporter later made enquiries with Mr. Cheung, recorded what Mr. Cheung said about what he had seen at the scene, and subsequently reported it in the newspaper. The reporter knew the solicitor formerly acting for the Applicant and therefore told that solicitor Mr. Cheung’s phone number and the circumstances of the incident. Thereafter, the reporter was no longer involved in the matter.", "zh-HK": "張先生在2007 年 11 月 29 日即本上訴聆訊的第一日告訴本庭他如何聯絡報社和法庭職員及最終到警署提供証供的始末。本庭在當日決定押後聆訊，命令警方對張先生所說的經過作出調查。警方的調查結果是太陽報表示除非有法庭命令，否則該報是不會向警方提供資料的。蘋果日報的一名法庭組記者向警方透露他的報社告訴他張先生曾經致電報社說他看到報章報導申請人傷人事件經過及判案的結果，但事件經過與他在案發現場所見到的情況不一樣，所以報社將張先生的電話號碼轉交給他，由他直接聯絡張先生了解事件。該名記者之後向張先生作出查詢及記下張先生述說在案發現場所見的情況，他其後在報章上作出有關報導。該名記者因認識代表申請人的前任律師，所以他告訴該名律師張先生的電話號碼及有關事件發生的情況。之後，他再沒有牽涉其中。" } }, { "doc_id": 10, "seg_id": 43, "translation": { "en": "Mr. Cheung appeared in court again on 23 September 2008, the second day of hearing of the present appeal. He again described how he got in touch with the newspaper and eventually went to the police station to give statements, as well as the circumstances of the incident. He was also cross-examined by Miss Louisa Lai, Senior Assistant Director of Public Prosecutions.", "zh-HK": "張先生在2008 年 9 月 23 日即本上訴聆訊的第二天再次出庭。張先生在庭上再次述說他如何與報社接觸及最終到警署提供証供的經過、案件事發的經過及接受律政司高級助理刑事檢控專員黎雅雯的盤問。" } }, { "doc_id": 10, "seg_id": 44, "translation": { "en": "Assessment of Cheung Hon Man’s evidence", "zh-HK": "本庭對張漢文証供的評核" } }, { "doc_id": 10, "seg_id": 45, "translation": { "en": "In our judgment, Mr. Cheung is a veracious and credible witness. He is a school janitor who has received only primary education. We find him a simple yet upright witness. Under cross-examination, when asked why he did not approach the police direct and tell them what actually happened, he replied that he sought clarification with the newspaper because of its untrue report on the incident. He added that he was someone who was reluctant to have any involvement with the authorities. After the incident, he sought advice from his colleagues on how to handle the matter. Some of them encouraged him to provide information to the police, but some warned him that he might face retaliation if he testified, and he decided not to contact the police. Subsequently, it was only with the company of a solicitor that he was willing to go to the police station to provide information. We accept Mr. Cheung’s explanation. He is plainly a person with the traditional mindset of ‘never going to the authorities as long as one is alive’. In our view, given the considerable influence of the local media on the public, it was not unusual for Mr. Cheung to elect to contact the media instead of the police after the incident.", "zh-HK": "本庭裁定張先生是一名誠實、可信的証人。他是一名學校校工，只接受過小學教育。本庭認為他是一名簡單但正直的証人。當他在接受盤問時被問及為何事發後他不將真相告直接告知警方，他的回覆是他因報章的報導失實而致電報社要求他們作出澄清。他續說他是一名不願意與官方有任何接觸的人士。事發後，他曾經就如何處理該事諮詢過一些同事的意見，有些鼓勵他向警方提供資料；有些則告誡他如果他作証他可能會被人尋仇，故此他決定不聯絡警方。後來因有律師陪同，他才願意到警署提供資料。本庭接納張先生的解釋，他明顯是一名有「生不入官門」的傳統觀念的人士。本庭認為香港傳媒對市民甚具影響力，張先生在事發後選擇與傳媒而非政府部門接觸並不算不尋常。" } }, { "doc_id": 10, "seg_id": 46, "translation": { "en": "The time at which Mr. Cheung contacted the newspaper publisher and the court was in accord with the dates of trial. The case was heard in the District Court from 4 to 6 December 2006, with the Court receiving evidence on the first two days and hearing submissions from both parties on the third day. Deputy Judge Yim gave judgment on conviction on 7 December 2006 and adjourned the case to 22 December 2006 for sentencing.", "zh-HK": "張先生與報社及法庭聯絡的時間與原審的日期吻合。案件在 2006 年 12 月 4 至 6 日在區域法院審理。法庭在首兩天聆聽証供，於第三天聆聽雙方陳詞。嚴法官在 2006 年 12 月 7 日作出判決及將案件押後至 2006 年 12 月 22 日作出量刑。" } }, { "doc_id": 10, "seg_id": 47, "translation": { "en": "Mr. Cheung jotted down the telephone number of the newspaper publisher on the back of a Mark Six ticket dated 5 December 2006, i.e. the second day of trial. The content of the subsequent telephone conversation between Mr. Cheung and the court staff also shows that the court had given judgment on conviction and was yet to pass sentence.", "zh-HK": "張先生在一張六合彩的收條背後記下報社的電話號碼，該收條的日期是 2006 年 12 月 5 日，亦即案件審訊的第二天。張先生之後與法庭職員聯絡的電話內容亦反映出法庭已作出裁決但未量刑的事實。" } }, { "doc_id": 10, "seg_id": 48, "translation": { "en": "More importantly, Mr. Cheung has in the Court given a well-organized and completely truthful account of the course of events that he witnessed. He was indeed at the scene at the material time. In fact, in the evidence at trial there was also mention of a man riding a bicycle turning up at the scene. Despite the rather rigorous cross-examination, the credibility of Mr. Cheung’s evidence was unimpaired. As regards the material facts pertaining to Charge 2, he frankly admitted that he did not witness the Applicant biting another person. We fully believe and accept Mr. Cheung’s evidence.", "zh-HK": "更重要的是張先生在法庭述說他目睹事件的經過的証供是條理分明，沒有半點虛假，張先生當時的確是身處現場。原審的証供亦說過現場有一名騎着自行車的男士出現。雖然張先生面對頗為尖銳的盤問，但他的証供可信性沒有受損。他就涉及本案第二項罪行的重要情節上坦然承認他看不到申請人咬人的情形。本庭絕對相信及接納張先生的証供。" } }, { "doc_id": 10, "seg_id": 49, "translation": { "en": "Legal principles", "zh-HK": "法律原則" } }, { "doc_id": 10, "seg_id": 50, "translation": { "en": "Section 83(1)(a) of the Criminal Procedure Ordinance (Cap. 221 of the Laws of Hong Kong) provides that the Court of Appeal shall allow an appeal against conviction and set aside the relevant conviction if it thinks that under all the circumstances of the case the conviction is unsafe or unsatisfactory. Once fresh evidence is admitted, the only issue for the Court of Appeal is whether such evidence would render the conviction unsafe or unsatisfactory: see R. v. Pendleton [2002] 1 All ER 524 and Stafford v. Director of Public Prosecutions [1974] AC 878.", "zh-HK": "根據《刑事訴訟程序條例》 （香港法例第221章）第83(1)(a)條，上訴法庭如認為案件在所有的情況下定罪是不穩妥或並不令人滿意便須判決上訴得直，命令定罪作廢。上訴法庭在接納新的証據之後唯一需要考慮的是有關的証據是否會令定罪不穩妥或不令人滿意：見R. v. Pendleton [2002] 1 All ER 524 及 Stafford v. Director of Public Prosecutions [1974] A.C. 878。" } }, { "doc_id": 10, "seg_id": 51, "translation": { "en": "In Stafford, Lord Cross of Chelsea pointed out the following three possible consequences of the Court accepting fresh evidence:", "zh-HK": "Lord Cross of Chelsea 在 Stafford 一案指出法庭接納新的証供後可能會產生以下三種後果：" } }, { "doc_id": 10, "seg_id": 52, "translation": { "en": "First, where the fresh evidence will create in the case new complexity so that the court will be satisfied that the conviction is unsafe, the court will quash the conviction and not order a retrial.", "zh-HK": "第一，新的証據會令案件產生全新的複雜性，令到法庭確信定罪是不穩妥的，這會令法庭撤銷定罪及不命令重審。" } }, { "doc_id": 10, "seg_id": 53, "translation": { "en": "Second, where the fresh evidence, though credible and relevant to the facts of the case, is not of such weight as to cast any reasonable doubt on the prosecution case, the court will uphold the conviction.", "zh-HK": "第二，新的証供雖然可信及對案情有關連，但新証據的分量並不能對控方案情產生任何合理疑點，在這情況下，法庭是會維持定罪。" } }, { "doc_id": 10, "seg_id": 54, "translation": { "en": "Third, where, having considered the fresh evidence or the evidence adduced by the prosecution in rebuttal, the jury may convict the defendant or may acquit him, the court will have to order a retrial.", "zh-HK": "第三，在考慮新的証據或控方在針對這些証據所提交的反駁証據時，陪審團可能判被告人無罪，亦可能判他有罪，在這情況下，法庭需要命令案件重審。" } }, { "doc_id": 10, "seg_id": 55, "translation": { "en": "Unsafe conviction", "zh-HK": "定罪不穩妥" } }, { "doc_id": 10, "seg_id": 56, "translation": { "en": "In the present case, we are of the view that Mr. Cheung’s evidence has rendered the convictions unsafe and unsatisfactory. Mr. Cheung is an independent witness of the incident which gave rise to the two charges against the Applicant. Two items of material evidence given by him are diametrically opposed to those adduced by the prosecution:", "zh-HK": "在本案本庭認為張先生提供的証供是令定罪的裁決不穩妥及不令人滿意的。張先生是一名獨立人士，他目睹涉及兩項控罪的事發經過。他所提出的兩項重要証供與控方所提出的極之不同：" } }, { "doc_id": 10, "seg_id": 57, "translation": { "en": "First, on both occasions PW1 was pulling the cart before she fell onto the ground. She fell by herself and was not shoved to the ground by the Applicant.", "zh-HK": "第一，第一証人在兩次跌倒之前都是用手拉着手推車，她是自己跌倒而不是申請人推跌她的。" } }, { "doc_id": 10, "seg_id": 58, "translation": { "en": "Second, the Applicant was being attacked by several persons, including PW2, when he bit off his thumb. The circumstances at that time were chaotic.", "zh-HK": "第二，申請人在咬斷第二証人手指時正受到多名人士襲擊，其中包括第二証人，當時情況混亂。" } }, { "doc_id": 10, "seg_id": 59, "translation": { "en": "The discrepancies between the aforesaid two items of evidence and the original evidence have a direct bearing on the court’s assessment of the evidence. They go directly to the issues of whether the Applicant did shove PW1 onto the ground and cause grievous harm to PW2 with intent as alleged.", "zh-HK": "上述兩項証供與原本証供的分歧是會直接影響法庭對証供的評核。它直接影響申請人有否推跌第一証人及是否意圖導致第二証人嚴重傷害的指控。" } }, { "doc_id": 10, "seg_id": 60, "translation": { "en": "The original evidence on the circumstances in which PW1 fell is entirely different from Mr. Cheung’s account. Miss Lai submits that, even on the Applicant’s own evidence, the circumstances were merely that PW1 was grabbing the Applicant’s sleeve and his shoulder bag and there was no mention of PW1 pulling the Applicant’s baby cart, was and this is different from Mr. Cheung’s account. In our view, this does not mean that Mr. Cheung’s observation was erroneous. According to the Applicant, he was carrying the cart when he boarded the second bus, and subsequently PW1 tossed it onto the street. In our view, it was not entirely impossible for PW1 to have pulled the cart apart from pulling the Applicant’s clothing. In light of the discrepancies in evidence, the Applicant’s conviction on Charge 1 is unsafe.", "zh-HK": "在原本証供上有關第一証人跌倒在地上的經過與張先生所說的版本完全不同。黎律師指出就算根據申請人本人提供的証供他也只是說第一証人執着他的衣袖及揹袋，而沒有說過第一証人拉着他的手推車，這與張先生所作出的証供不同。本庭認為這不表示張先生的觀察是錯誤的。申請人說他登上第二輛巴士時是提着手推車的，而後來第一証人將手推車丟掉到街上。本庭認為第一証人除了拉扯申請人衣物外，還拉扯過手推車並不是完全不可能發生的事情。基於証供的分歧，第一項定罪的裁決是不穩妥的。" } }, { "doc_id": 10, "seg_id": 61, "translation": { "en": "Turning to Charge 2, PW2’s evidence was that after he saw PW1 fall down, he came up and grabbed the Applicant’s clothing by the chest and stopped the Applicant from boarding the second bus, and the Applicant instantly grabbed PW2’s hand, put it in his mouth and then bit his thumb. He felt pain and tried to free his right hand from the Applicant’s mouth but in vain. The Applicant opened his mouth only after he had bitten off part of PW2’s thumb tip. According to Mr. Cheung, the person whose thumb was bitten off was one of those who were assaulting the Applicant and at that time that person was not at all aware that his thumb had already been bitten off. As that person continued to kick the Applicant, Mr. Cheung shouted at him to stop him and told him that his thumb was bleeding. Only then did he realize that his thumb tip had been bitten off. If, as PW2 said, the Applicant got hold of his thumb, put it in his mouth and bit it immediately after the two of them had body contact, then he could not possibly have been unaware that his thumb was bitten off. More importantly, Mr. Cheung’s evidence lends support to the Applicant’s case that he bit PW2’s thumb because he could not breathe and had to defend himself as a result of PW2’s attack.", "zh-HK": "至於第二項控罪，第二証人的証供是當他看見第一証人跌倒後，他便上前執着申請人胸口的衣服及阻止他登上第二輛巴士，申請人就立即用雙手捉着他的手放入口中及咬他的手指；他感到痛楚，他嘗試從申請人的口中抽出右手但不成功。申請人直至咬斷他部分的手指頭後才張開口。張先生說被咬斷手指的人是其中一名毆打申請人的人士，這人當時根本不知道他的手指已經被咬斷。由於這個被咬斷手指的人還繼續用腳踢申請人，故此張先生喝止他及告訴他他的手指在流血。之後，這人才發現他的手指頭已經被咬斷。若根據第二証人的証供，當申請人與他有身體接觸後便立即用雙手捉着他的手指及放進口中咬的話，第二証人是不可能不知道他的手指被咬斷的。更重要的是張先生的証供支持申請人說他是受到第二証人的襲擊後因不能呼吸及出於自衞而咬第二証人的手指。" } }, { "doc_id": 10, "seg_id": 62, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 10, "seg_id": 63, "translation": { "en": "In our assessment, Mr. Cheung’s evidence is highly credible. We are satisfied that his evidence does render the convictions unsafe. In our judgment, the present case falls within the first scenario set out by Lord Cross. We therefore allow the appeal, set aside the convictions and make no order for retrial.", "zh-HK": "本庭評定張先生証據的可信性極高。本庭肯定他的証據是會令到定罪不穩妥的，本庭認為本案屬於 Lord Cross 所列出的第一種情況。故此本庭批准上訴、撤銷定罪及不作出任何重審命令。" } }, { "doc_id": 10, "seg_id": 64, "translation": { "en": "Miss Louisa Lai, Senior Assistant Director of Public Prosecutions, for the Respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員黎雅雯代表。" } }, { "doc_id": 10, "seg_id": 65, "translation": { "en": "Mr. Chan Siu Ming, instructed by Kong & Chang on assignment by the Legal Aid Department, for the Applicant.", "zh-HK": "申請人：由法律援助署委派江偉強、張振邦律師行轉聘陳銚明大律師代表。" } }, { "doc_id": 11, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案書：" } }, { "doc_id": 11, "seg_id": 2, "translation": { "en": "Charges", "zh-HK": "控罪" } }, { "doc_id": 11, "seg_id": 3, "translation": { "en": "The applicant was charged with one count of procuring another person to become a prostitute, contrary to section 131(1)(a) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. At the same time, she was faced with an alternative charge, namely trafficking in persons from Hong Kong, contrary to section 129(1) of the Crimes Ordinance.", "zh-HK": "申請人被控一項「導致另一人賣淫」罪，違反《刑事罪行條例》(香港法例第 200 章)第 131(1)(a) 條。申請人亦同時被控一項交替罪名，即「販運他人離開香港」罪，違反《刑事罪行條例》第 129(1) 條。" } }, { "doc_id": 11, "seg_id": 4, "translation": { "en": "The case was heard by Deputy District Judge Anthony Yuen. The applicant was found guilty of procuring another person to become a prostitute and was sentenced to 18 months imprisonment. She now seeks leave to appeal against her conviction. She had also applied for leave to appeal against her sentence, but she abandoned that application on 8 August 2009 and the Court dismissed that application on the same day.", "zh-HK": "案件經區域法院暫委法官阮偉明審理後，申請人被裁定「導致另一人賣淫」罪罪名成立及被判監十八個月。申請人現就定罪提出上訴許可申請。她本來還就刑期提出上訴許可申請，但於 2009 年 8 月 8 日放棄該申請，法庭亦於同日撤銷該申請。" } }, { "doc_id": 11, "seg_id": 5, "translation": { "en": "Facts", "zh-HK": "案情" } }, { "doc_id": 11, "seg_id": 6, "translation": { "en": "The facts were that in March 2007, the following advertisement appeared in a Hong Kong newspaper for a number of days:", "zh-HK": "案情顯示，2007 年的 3 月份一份香港報章多日刊登以下的一則廣告：" } }, { "doc_id": 11, "seg_id": 7, "translation": { "en": "‘Quick money to be earned overseas, plenty of countries for you to choose, can earn $100,000 every month, safe and reliable, food and accommodation provided, no commission required, please call 9239 9235.’", "zh-HK": "「海外快錢多國選擇月入 10 萬安全可靠包食包住免佣請電 92399235」" } }, { "doc_id": 11, "seg_id": 8, "translation": { "en": "The second prosecution witness (PW2) was a police constable. On 10 May 2007, she was instructed to carry out investigation in respect of this advertisement. On 16 May 2007, PW2 posed as an applicant for the job and called the number in the advertisement. A woman, who called herself ‘Maggie’, answered the call. Judge Yuen stated the content of this telephone conversation in his Reasons for Verdict:", "zh-HK": "控方第二證人（第二證人）是一名警員。她於 2007 年 5 月 10 日被上司指派就該則廣告作出調查。2007 年 5 月 16 日，第二證人假份應徵者致電廣告上的電話號碼。一名自稱‘Maggie’的女子接聽電話。阮法官在判決書內記載了有關電話內容：" } }, { "doc_id": 11, "seg_id": 9, "translation": { "en": "‘The woman said that the job was a job to work in a massage parlour in Australia, and she asked PW2 whether she had worked in a massage parlour before. PW2 answered that she had not and said that she did not know how to massage, but the woman said, ‘You don’t need to know. All you need to do is to knead him a few times and then the customer will go to bed with you’. She also asked PW2 about her age and her figure.’", "zh-HK": "「該名女子指有關工作是在澳洲一個骨場工作，及問第二證人曾否有在骨場工作過，第二證人答沒有及說不懂揼骨，該名女子說『唔使識嘅，妳係咁易撚幾下，啲客就同妳上床喇』，又問第二證人的年齡及身材」" } }, { "doc_id": 11, "seg_id": 10, "translation": { "en": "They also arranged to meet in a restaurant on the same day. The applicant went there as arranged. Judge Yuen stated in this Reasons for Verdict their conversation during that meeting:", "zh-HK": "雙方亦約定於同日在一間餐廳會面。申請人依約赴會。阮法官在判案書內記載了雙方當時會面的對話內容：" } }, { "doc_id": 11, "seg_id": 11, "translation": { "en": "‘… PW2 reiterated that she did not know how to massage. The defendant said that she did not need to know how to massage because the customers just wanted to do it with her. PW2 asked her whether the customers would do SM, and whether they would refuse to put on a condom. She said that she did not want to serve customers from Hong Kong. The defendant said that most of the customers were foreigners and people from China. They did not play those games and they would do it one to one in the normal way.", "zh-HK": "「……第二證人重申她不懂揼骨，而被告則說不需懂得如何揼骨，因客人只是想和她做，第二證人問客人會不會玩 SM，又或者會不會不戴套，又表示不想接待香港客，被告說那些客人大都是中國人和外國人，他們不玩那些遊戲，都是一對一，正常地做。" } }, { "doc_id": 11, "seg_id": 12, "translation": { "en": "As far as pay is concerned, the defendant said that for each customer, 80 Australian dollars could be earned for half an hour and 100 Australian dollars for one hour. The working hours were from 12 noon to 2 to 3 o’clock in the small hours. If PW2 was willing to do this job, she had to pay 2,000 Australian dollars in advance as introduction fee, but this 2,000 dollars could be deducted subsequently from her pay. PW2 asked her what she should do if she really wanted to go to Australia to work. The defendant said that if PW2 really wanted to go there to work, she should inform her. Then she would liaise with a travel agency, which would contact PW2 and arrange for her to bring money and travel documents to the travel agency for applying for visa and buying air ticket. When it was done, PW2 would be informed to collect the air ticket. The time required would be about 2 weeks. After she got the air ticket, the defendant would be informed. Then the defendant would inform the boss and later someone would pick her up at the airport in Australia.", "zh-HK": "至於薪酬方面，被告說每一個客人半小時可得 80 元澳幣，一小時可得 100 元澳幣，工作時間由中午 12 時至凌晨 2 時或 3 時，若第二證人有意思做的話，她要先繳交 2,000 元澳幣作介紹費，但這 2,000 元可在日後的薪酬中扣除。第二證人問若她真的想去澳洲工作，應該點做。被告說，若第二證人真的想去做的話，便通知她，她便會和旅遊社聯絡，旅遊社方面會通知第二證人，安排她帶錢及旅遊證件到旅遊社辦理簽證及買機票等，成功後便會通知第二證人拿取機票，大約需時兩個星期，拿到機票後便通知被告，被告便會通知老細，之後會有人在澳洲接機。" } }, { "doc_id": 11, "seg_id": 13, "translation": { "en": "The defendant told PW2 that if she was a holder of HKSAR passport, she could stay in Australia for 3 weeks. If she wanted to stay longer, she could leave the territory for a short while at the expiration of the stay period and then go there again. In this way she could stay for 3 months more. If 6 months were still not enough, the boss could arrange for a student visa for PW2, then she could stay there for 2 years.", "zh-HK": "被告告訴第二證人若她持有的是特區護照，她可在澳洲停留三個月，若她想停留更長時間，可於期滿時稍為離境，然後再入境，便可再停留多三個月，若六個月還不足夠的話，老細可替第二證人安排學生簽證，那麼，第二證人便可停留兩年之久。" } }, { "doc_id": 11, "seg_id": 14, "translation": { "en": "PW2 said that she wanted to think over it. Then the meeting ended. The whole meeting lasted for about 40 minutes.’", "zh-HK": "第二證人表示要考慮一下，之後會面便結束，整個會面為時大約四十分鐘。」" } }, { "doc_id": 11, "seg_id": 15, "translation": { "en": "On 6 June 2007, PW2 telephoned the applicant again and told her that she decided to go to Australia to work, but at that time the applicant said that she was very busy and that she would contact PW2 later.", "zh-HK": "2007 年 6 月 6 日，第二證人再致電申請人，訛稱她決定往澳洲工作，但申請人當時表示她很忙，稍後會聯絡第二證人。" } }, { "doc_id": 11, "seg_id": 16, "translation": { "en": "Several days later, PW2 and another police constable went to the applicant’s home and arrested her.", "zh-HK": "數日後，第二證人與另外一名警員到申請人的住所把她拘捕。" } }, { "doc_id": 11, "seg_id": 17, "translation": { "en": "At the trial, the applicant elected not to give evidence and not to call any witness.", "zh-HK": "申請人在審訊時選擇不作供及不傳召證人。" } }, { "doc_id": 11, "seg_id": 18, "translation": { "en": "Findings made by Judge Yuen", "zh-HK": "阮法官的裁決" } }, { "doc_id": 11, "seg_id": 19, "translation": { "en": "One of the issues which Judge Yuen needed to consider at the trial was whether, as a result of the contents of the conversations between the applicant and PW2, the applicant believed or might have believed that PW2 herself was already a prostitute. If she had such belief, she could not possibly commit the offence, because she could not procure a person who is already a prostitute to become a prostitute. Judge Yuen found that there was no evidence in this case which showed that the applicant had such belief at the material time. He did not accept that there was anything said in the conversations between the applicant and PW2 as a result of which the applicant believed or might have believed that PW2 was a prostitute. Judge Yuen said that PW2 had never told the applicant what her occupation was, nor had she expressly or impliedly indicated that she was a prostitute. The clearest response she made was only that she intimated that she was interested in the job introduced by the applicant.", "zh-HK": "阮法官在原審時所需要考慮的其中一項爭議點是申請人與第二證人的對話內容會否令申請人相信或有可能相信第二證人本身是一名娼妓，若她有這個想法的話，她便不可能干犯有關的罪行，因為她是不能致使一名本來是娼妓的人當娼。阮法官認為案件沒有任何證據顯示申請人當時存有這個想法，他亦不認為申請人與第二證人的會面對話存有會導致申請人相信或可能相信第二證人是一名娼妓的言詞。阮法官說第二證人從來沒有向申請人透露過她的職業，亦沒有明示或暗示過她是妓女，她最明顯的回應都只不過是對申請人所介紹的工作表示有興趣。" } }, { "doc_id": 11, "seg_id": 20, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理據" } }, { "doc_id": 11, "seg_id": 21, "translation": { "en": "The ground of appeal put forward by the applicant is that Judge Yuen erred in refusing to accept that the applicant believed or might have believed that PW2 was a prostitute or was a woman who wanted to be a prostitute of her own free will, because the evidence as a whole supported the applicant’s holding this impression of PW2, and this is a reasonable and inescapable inference. Furthermore, Judge Yuen failed to properly consider that the burden of proof was on the prosecution, and that they were obliged to prove that the applicant had the intention to procure a ‘good and decent woman’ to become a prostitute.", "zh-HK": "申請人所提出的上訴理據是阮法官拒絕接納申請人是相信或有可能相信第二證人是一名娼妓或自願當娼的女子的裁決是錯誤的；因為整體証供都支持申請人對第二證人產生這個印象，這是出於合理或不能排除的推斷。另外，阮法官沒有恰當地考慮舉証責任是在於控方，它須証明申請人有促致一名「良家婦女」當娼的意圖。" } }, { "doc_id": 11, "seg_id": 22, "translation": { "en": "Respondent’s stance", "zh-HK": "答辯人的立場" } }, { "doc_id": 11, "seg_id": 23, "translation": { "en": "Miss Yam, Senior Public Prosecutor, for the respondent, submits that the applicant did not give evidence at the trial and that there was no evidence which demonstrates that because PW2 did not show any surprise or unwillingness when she heard the applicant’s explanation and because she arranged with her to meet her, the applicant believed that PW2 was already a prostitute. Miss Yam does not think that PW2 would deliberately make the applicant believe that she was familiar with the operation of immoral transactions. Miss Yam submits that PW2 did not need to do so and if she had really done so, the applicant would not have to tell her further that ‘she did not need to know how to massage because the customers just wanted to do it with her’, and that ‘most of the customers were foreigners and people from China. They did not play those games and they would do it one to one in the normal way’.", "zh-HK": "代表答辯人的高級檢控官任可表示，申請人在審訊時沒有作供，案件亦沒有任何證據顯示申請人是由於第二證人對她所作出的解釋沒有表示驚訝和抗拒及與她相約會面，因而認為第二證人本身是一名娼妓。任律師不認為第二證人是刻意令申請人相信她熟悉不道德交易的運作。任律師認為第二證人是沒有必要這樣做的，而且，如果她真的有這樣做，申請人就無須再向她加以解釋說：「她不需要懂得如何揼骨，因客人只想和她做」及「那些客人大多都是中國人和外國人，他們不玩那些遊戲，都是一對一正常地做」等。" } }, { "doc_id": 11, "seg_id": 24, "translation": { "en": "Legal principle", "zh-HK": "法律原則" } }, { "doc_id": 11, "seg_id": 25, "translation": { "en": "The legal principle applicable to the offence is that if a person is already a prostitute, she cannot be procured to become one. She is willing to provide sexual services because she is a prostitute herself, not because she has been procured by someone to become a prostitute to do so. Therefore, if the defendant believed or might have believed the person in question was a prostitute, he could not procure that person to become a prostitute; the reason is that he did not have the intention to procure a person who was not a prostitute to become a prostitute. (see: Hong Kong Archbold 2009, paragraph 21-205, and R v Brown (RA) 80 Cr App R 36).", "zh-HK": "有關控罪的法律原則是，若果一名人士本身是娼妓，她是不會被另一人導致她成為娼妓的。她願意提供性服務的原因是她本身是一名娼妓，而不是因為被另一人導致她成為娼妓而這樣做，因此若果被告人相信或可能相信這名人士是娼妓，他是不可能導致這名人士去賣淫的，理由是他沒有導致一名不是娼妓的人士去賣淫的意圖(見：Hong Kong Archbold, 2009 年版第 21―2005 段，另見：R v. Brown (RA) 80 Cr App R 36)。" } }, { "doc_id": 11, "seg_id": 26, "translation": { "en": "The opinion of this Court", "zh-HK": "本庭意見" } }, { "doc_id": 11, "seg_id": 27, "translation": { "en": "The question whether the applicant believed or might have believed that PW2 was a prostitute must be determined from the evidence as a whole. The applicant could have elected to give evidence to explain what she understood to be the case. But even if she elected to exercise her right of silence and did not give evidence, the prosecution was still required to prove that at the material time the applicant did not believe or it was not possible for the applicant to believe that PW2 was already a prostitute. Conversely, even if the applicant elected to give evidence and claimed that she believed or might have believed that PW2 was a prostitute, but if the evidence as a whole did not support her defence, the Court was not obliged to accept her evidence.", "zh-HK": "申請人是否相信或可能相信第二證人是一名娼妓是需要從整體案情去推斷的。申請人可以選擇作供去披露她的理解，但就算她選擇使用緘默權不作供，控方亦需要證明申請人當時是不相信或者是不可能相信第二證人本身是一名娼妓。反過來說，就算申請人選擇作供，聲稱她相信或者可能相信第二證人是一名娼妓，若果整體案情不支持有關的辯白，法庭也不一定需要接納她的證供。" } }, { "doc_id": 11, "seg_id": 28, "translation": { "en": "According to the circumstances of this case: First, even if the content of the advertisement contained some implications of immoral transactions, this does not mean that an applicant for the job must be a prostitute. Furthermore, this Court does not consider that the applicant would inevitably believe or might have believed that whoever responded to the advertisement and applied for the job must be a prostitute. Looking at the content of the first telephone conversation between PW2 and the applicant in isolation, we do not consider that as a result of this conversation the applicant would inevitably believe or might have believed that PW2 was a prostitute. However, we find that it was possible to give the applicant such an impression by the combined effect of this conversation and the conversation between the two of them when they met that day, because during their first telephone conversation when PW2 learned that the job would require her to provide sexual services to customers, she did not show any surprise or unwillingness, nor did she indicate that she did not want to do such kind of work; she even arranged to meet the applicant. When they met, although PW2 by then clearly knew that the job she applied for required her to provide sexual services to customers, not only did she not say that she had no experience in this field, she even asked the applicant ‘whether the customers would do SM’ and ‘whether they would refuse to put on a condom’. She also said that she did not want to serve customers from Hong Kong. All these were activities which could actually take place in a sexual transaction. This Court cannot exclude the consideration that an applicant who was not a prostitute would be unlikely to say so explicitly that kind of sexual activity she did not want to take part in and that she unlikely would be so concerned about the nationality of the customers. Judging from the contents of these conversations, it is possible that the applicant believed that PW2 was a prostitute, particularly because PW2 asked the applicant about the kind of sexual activity which she would carry out with customers after she arrived in Australia. This point can at least show that the prosecution failed to prove beyond reasonable doubt that the applicant could not possibly believe that PW2 was a prostitute.", "zh-HK": "據本案的情況，首先，就算有關的廣告內容隱含着一些不道德交易的意思，這也不表示應徵者必定是娼妓。其次，本庭亦不認為申請人必然會相信或有可能相信凡應徵該廣告的人士都必定是娼妓。如果單獨考慮第二證人與申請人的第一次電話談話內容，本庭不認為有關的談話內容會必然令申請人相信或者可能相信第二證人是一名娼妓。但本庭認為有關的談話內容再加上雙方於當日會面時的對話整合起來就有可能給予申請人這個印象，這是因為第二證人在雙方進行第一次電話對話時，得悉有關工作是需要向客人提供性服務，但她當時沒有表示驚訝或抗拒，亦沒有表示不願意作這類性質的工作，她更與申請人相約會面。雙方會面時，雖然第二證人明顯已經知道她所應徵的工作是需要向客人提供性服務，但她不但沒有表示沒有這方面的經驗，反而詢問申請人：「客人會不會玩 SM」及「他們會不會不戴套」等問題，她更表示不想接待香港客，這些都是涉及性交易的實質行為。本庭不能排除一個可能性，這就是一名不是當娼的應徵者應該不會如此露骨地說出她不願意做的性行為模式及刻意關注客人的國籍。從這些對話內容來看，申請人是有可能相信第二證人是一名娼妓，尤其是第二證人曾向申請人查詢她到達澳洲後和客人進行性行為的模式。這一點最起碼顯示控方是未能在毫無合理疑點的情況下證明申請人是不可能相信第二證人是一名娼妓。" } }, { "doc_id": 11, "seg_id": 29, "translation": { "en": "For the above reasons, we find that the prosecution failed to prove beyond reasonable doubt that the applicant committed this offence, and therefore we will grant leave to appeal. We will treat the application as the appeal proper, allow the appeal and quash the conviction.", "zh-HK": "基於上述原因，本庭認為控方根本未能在毫無合理疑點的情況下證明申請人干犯了這項罪行，故此本庭批准申請，視申請為正式上訴。本庭批准上訴及撤銷定罪。" } }, { "doc_id": 11, "seg_id": 30, "translation": { "en": "Alternative charge", "zh-HK": "交替控罪" } }, { "doc_id": 11, "seg_id": 31, "translation": { "en": "Because the offence is not established, we need to consider the alternative charge. Judge Yuen found that if there was evidence showing that the applicant had actually participated in arranging for another person to leave Hong Kong for the purpose of prostitution, then even though that person finally did not leave Hong Kong, the charge against the applicant was established.", "zh-HK": "由於這項控罪不成立，故此本庭需要考慮有關的交替控罪。阮法官裁定若果證供顯示申請人確實有參與安排另一名為了賣淫的人士離開香港，就算這名人士最終沒有離開香港，申請人被控的罪名都已經成立。" } }, { "doc_id": 11, "seg_id": 32, "translation": { "en": "Judge Yuen was of the view that the role of the applicant was to recruit women who were interested in going abroad to work as prostitutes, while other work was basically done by the travel agency and people working overseas. He found that although PW2 had not yet given a firm reply as to whether she would take up the job so that the applicant had not made any arrangement for PW2 to go to the travel agency to go through the formalities, the applicant’s acts constituted an important part of the elements of taking another person out of Hong Kong for the purpose of prostitution. If PW2 had agreed to take up the job, other procedures would have been carried out as a matter of course. At this point, the applicant had essentially done her work. But since Judge Yuen had found the applicant guilty of procuring another person to be a prostitute, he did not give a decision on the alternative charge.", "zh-HK": "阮法官認為申請人的角色是招攬有興趣到外國賣淫的女子，而其餘的工作基本上是由旅行社和外國的人士負責的。他認為雖然申請人因第二證人還未確實答覆會否出任該份工作而未安排第二證人到旅行社辦理手續，但申請人的行動已經構成將另一人為了賣淫而被帶離香港的部分重要元素，只要第二證人答應出任這份工作，其他程序便會順理成章地進行。申請人的工作到此基本上已經完成了。但由於阮法官已裁定「導致另一人賣淫」罪罪名成立，所以他不對這項交替控罪作出裁決。" } }, { "doc_id": 11, "seg_id": 33, "translation": { "en": "Issue", "zh-HK": "爭議點" } }, { "doc_id": 11, "seg_id": 34, "translation": { "en": "In this appeal, the issue concerning this charge is whether the victim has to be brought into or taken out of Hong Kong before a complete offence can be committed.", "zh-HK": "在本上訴，有關這控罪的爭議是受害人是否需要被帶進入或帶出香港才可構成一項完整的罪行？" } }, { "doc_id": 11, "seg_id": 35, "translation": { "en": "The view of Mr. Ma, counsel for the applicant, is that the victim must have left or entered Hong Kong before this charge can be made out. He relied on sections 57 and 59 of the Sexual Offences Act 2003 of the United Kingdom, the contents of which are:", "zh-HK": "代表申請人的馬維騉大律師的立場是受害人必須已經離開或進入香港才可構成這控罪。他引用英國 Sexual Offences Act 2003 第 57 及59 條，其內容指：" } }, { "doc_id": 11, "seg_id": 36, "translation": { "en": "Trafficking into the UK for sexual exploitation", "zh-HK": "Trafficking into the UK for sexual exploitation" } }, { "doc_id": 11, "seg_id": 37, "translation": { "en": "(1)A person commits an offence if he intentionally arranges or facilitates the arrival in the United Kingdom of another person (B) and either —", "zh-HK": "(1)A person commits an offence if he intentionally arranges or facilitates the arrival in the United Kingdom of another person (B) and either―" } }, { "doc_id": 11, "seg_id": 38, "translation": { "en": "he intends to do anything to or in respect of [B], after B’s arrival but in any part of the world, which if done will involve the commission of a relevant offence, or", "zh-HK": "he intends to do anything to or in respect of, after B’s arrival but in any part of the world, which if done will involve the commission of a relevant offence, or" } }, { "doc_id": 11, "seg_id": 39, "translation": { "en": "he believes that another person is likely to do something to or in respect of B, after B’s arrival but in any part of the world, which if done will involve the commission of a relevant offence.’", "zh-HK": "he believes that another person is likely to do something to or in respect of B, after B’s arrival but in any part of the world, which if done will involve the commission of a relevant offence.’" } }, { "doc_id": 11, "seg_id": 40, "translation": { "en": "rafficking out of the UK for sexual exploitation", "zh-HK": "Trafficking out of the UK for sexual exploitation" } }, { "doc_id": 11, "seg_id": 41, "translation": { "en": "(1)A person commits an offence if he intentionally arranges or facilitates the departure from the United Kingdom of another person (B) and either —", "zh-HK": "(1)A person commits an offence if he intentionally arranges or facilitates the departure from the United Kingdom of another person (B) and either―" } }, { "doc_id": 11, "seg_id": 42, "translation": { "en": "he intends to do anything to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence, or", "zh-HK": "he intends to do anything to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence, or" } }, { "doc_id": 11, "seg_id": 43, "translation": { "en": "he believes that another person is likely to do something to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence.’", "zh-HK": "he believes that another person is likely to do something to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence.’" } }, { "doc_id": 11, "seg_id": 44, "translation": { "en": "According to paragraph 104 (section 57) and paragraph 110 (section 59) of the Explanatory Notes in respect of this statute issued by the English Home Office, these offenses can be committed only when the victim has entered U.K. territory or has left U.K. territory. Mr. Ma did not cite any decision of the English Courts on these sections. Mr. Ma submitted that according to his research, no Hong Kong case has ever discussed this issue, but in the following cases: HKSAR v. Chiu Kwok Ho（趙國豪）CACC 178/2003, HKSAR v. Lau Chi Yui（劉致睿）and another CACC 148/2004, HKSAR v. Yee Yiu-Sam CACC 530/2001, R v Wong Fu Keung CACC 158/1996, R v Chan Wing Lung and another CACC 250/1991, R v Li Lik CACC 50/1990, R v Soonthorn Chookiat Pravit CACC 301/1991 and HKSAR v. Pang Man Wai（彭文偉）and another CACC 250/2007, all the victims had been brought into Hong Kong. Moreover, in Chiu Kwok Ho the trial judge took the view that the offence was complete once the victim was brought into Hong Kong.", "zh-HK": "根據英國內政部就該條例發出的「解釋文件」(Explanatory Notes)的 104 段（第 57 條）及 110 段（第 59 條），有關的罪行必須在受害人到達英國境內或離開了英國才發生。馬大律師沒有引用英國法庭就該條例作出裁決的案例。馬大律師指出根據他的研究，香港並沒有一宗案件曾就這個議題作出討論，但在以下案件（如 HKSAR v. Chiu Kwok Ho (趙國豪) CACC 178/2003，HKSAR v. Lau Chi Yui（劉致睿）及其他人士CACC 148/2004，HKSAR v. Yee Yiu-Sam，CACC 530/2001, R v Wong Fu Keung CACC 158/1996, R v Chan Wing Lung and another CACC 250/1991, R v Li Lik, CACC 50/1990, R v Soonthorn Chookiat Pravit CACC 301/1991 及HKSAR v. Pang Man Wai (彭文偉) and another CACC 250/2007）中所有受害人均已經被帶進香港。另外，在趙國豪一案，原審法官更認為當受害人被帶進香港時已構成了有關的罪行。" } }, { "doc_id": 11, "seg_id": 45, "translation": { "en": "Miss Yam does not agree with Mr. Ma’s view. She submitted that the offence in question is directed at the process in which a person is taken out of Hong Kong, not the acts of taking a person out of Hong Kong. She said that to take a person out of Hong Kong for the purpose of prostitution necessarily involves a series of steps. The purpose of the offence is obviously to prohibit any person from carrying out any of these steps, whether or not any person has actually been taken out of Hong Kong finally.", "zh-HK": "任律師不同意馬大律師的看法，她認為有關的罪行是涉及一名人士被帶出香港的過程，而不是帶出香港的動作。她認為將一名為了賣淫的人士帶出香港必定牽涉多項程序，有關控罪的目的明顯是禁止任何人進行任何有關的程序，不論最終是否有人確實被帶出香港。" } }, { "doc_id": 11, "seg_id": 46, "translation": { "en": "Content of section 129", "zh-HK": "第 129 條的內容" } }, { "doc_id": 11, "seg_id": 47, "translation": { "en": "The content of section 129 of the Crimes Ordinance is:", "zh-HK": "《刑事罪行條例》第 129 條的內容是：" } }, { "doc_id": 11, "seg_id": 48, "translation": { "en": "‘129.Trafficking in persons to or from Hong Kong", "zh-HK": "「129.販運他人進入或離開香港" } }, { "doc_id": 11, "seg_id": 49, "translation": { "en": "(1) A person who takes part in bringing another person into, or taking another person out of, Hong Kong for the purpose of prostitution shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 10 years.", "zh-HK": "任何人參與將另一人帶入或帶出香港，目的在於賣淫，即屬犯罪，一經循公訴程序定罪，可處監禁10年。" } }, { "doc_id": 11, "seg_id": 50, "translation": { "en": "(2) It shall not be a defence to a charge under this section to prove that the other person consented to being brought into or taken out of Hong Kong whether or not she or he knew it was for the purpose of prostitution or that she or he received any advantage therefor.’", "zh-HK": "就根據本條提出的控罪而言，即使被控人證明上述的另一人同意被帶入或帶出香港，不論她或他是否知道此舉的目的在於賣淫，或證明該另一人因此曾接受任何利益，亦不得以此作為免責辯護。」" } }, { "doc_id": 11, "seg_id": 51, "translation": { "en": "The opinion of this Court", "zh-HK": "本庭的意見" } }, { "doc_id": 11, "seg_id": 52, "translation": { "en": "The wording of section 129(1) is different from that of sections 57 and 59 of the Sexual Offences Act of the U.K. We therefore must construe section 129(1) on the basis of its own wording. We consider that the phrase ‘A person who takes part in bringing another person into, or taking another person out of, Hong Kong’ has a broad meaning. The section does not provide that the person who intends to engage in prostitution must have been actually brought into or taken out of Hong Kong. It targets the people who take part in such a scheme and its purpose is obviously to attack illegal trafficking in people engaging in prostitution to or from Hong Kong. The purpose of this provision will be seriously weakened if the offence is restricted to the stage when the people engaging in prostitution having actually entered or left Hong Kong. We do not think that there is anything unclear or equivocal in the wording of section 129(1) which necessitates giving the benefit of the doubt to the applicant.", "zh-HK": "由於第 129(1) 條與英國 Sexual Offences Act 第 57 及 59 條所採用的字眼不盡相同，故此本庭必須根據第 129(1) 條本身的字眼作出闡釋。本庭認為第 129(1) 條的條文「任何人參與將另一人帶入或帶出香港」的含義廣泛，它並沒有規定企圖賣淫的人士必須實質地被帶入或帶出香港。它的重點是針對參與這個計劃的人士，其目的明顯是打擊涉及販運賣淫的人士進入或離開香港的不法行為，如果將這項罪行局限於這些賣淫人士確實已經進入或離開香港這個層面就會嚴重削弱了這條例的目的。本庭不認為第 129(1) 條的用詞不清晰或有模稜兩可的意思，因而要將疑點的利益歸予申請人。" } }, { "doc_id": 11, "seg_id": 53, "translation": { "en": "Having said that, we are also of the view that this offence requires the prosecution to prove that the offender has made substantial and specific arrangements for bringing the person who is to engage in prostitution into Hong Kong or taking that person out of Hong Kong. Many steps have to be taken in order to bring a person into or take a person out of Hong Kong for the purpose of prostitution: First, to recruit a person who is willing to become a prostitute; second, to make arrangements for this person to leave or enter the territory, for example, buy air tickets, apply for visa, liaise with members of the gang who work in the foreign territory and meet the person at the Hong Kong airport or the foreign airport. These steps can be carried out by different people. If the person who is to engage in prostitution has actually been brought into or taken out of Hong Kong, the people concerned certainly have taken part in the arrangements for ‘bringing another person into, or taking another person out of’ Hong Kong. If that stage has not yet been reached, the Court will consider the extent to which arrangements for carrying out the scheme have been made in order to decide whether the offence has been committed. For instance, if the person who agrees to engage in prostitution has been brought to the airport or the border and all that remains to be done is for her to board the aeroplane or go through the border checkpoint in order to enter or leave Hong Kong, we think that under these circumstances, the requirements of this offence are satisfied, because substantial and specific arrangements have been made for bringing the person into or taking the person out of Hong Kong.", "zh-HK": "不過，本庭同時認為構成這項罪行必須證明犯罪者為了將這名賣淫人士帶入或帶出香港而進行了一些實質而具體的安排。犯罪者將一名人士帶入或帶出香港賣淫是要經過多個步驟的，首先要招攬一名同意賣淫人士，其次是而為這名人士的離境或入境作出安排，如購買機票、簽證、聯絡外國的黨羽及在本港或外國機場接待這名人士等，有關工作可由不同的人士負責。如果企圖賣淫的人士確實已被帶入或帶出香港，這些有關人士當然是有參與「帶入或帶出」香港的安排，但如果還未作出這些行動的話，法庭就會以他們為該項行動所作出安排的程度來考慮有關的罪行是否已經構成。舉例來說，若果一位同意賣淫的人士已被帶到機場或邊境，她只需要登上飛機或過關就可進入或離開香港，本庭認為這個情況已經構成了該罪行的元素，因為案件已存在將這名人士帶入或帶出香港的實質而具體安排。" } }, { "doc_id": 11, "seg_id": 54, "translation": { "en": "In this case, the role of the applicant was to recruit people who want to go overseas as prostitutes , but she was arrested before she or other people taking part in this illegal scheme have taken any further action to arrange for PW2 to leave Hong Kong. The applicant is not charged with conspiracy to traffick in persons to or from Hong Kong for the purpose of prostitution, and there is no evidence which shows that the applicant or other people have made any substantial and specific arrangements for taking PW2 out of Hong Kong. In these circumstances, we do not think that the offence has been committed. For the above reasons, we find that the alternative charge is not proved.", "zh-HK": "在本案，申請人的角色是招攬一些有意到外國賣淫的人士，但她在她或其他參與這非法行動的人士還未採取進一步行動安排第二證人離港之前就已經被捕。申請人並不是被控「串謀販運他人進入或離開香港賣淫」罪，本案亦沒有證據顯示申請人或其他人士已作出任何實質而具體的離港安排，在這情況下，本庭不認為有關的控罪已經構成。基於上述原因，本庭裁定這項交替罪罪名不成立。" } }, { "doc_id": 11, "seg_id": 55, "translation": { "en": "Miss Sally Yam, Senior Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官任可代表。" } }, { "doc_id": 11, "seg_id": 56, "translation": { "en": "Mr. David Ma, instructed by Yaddy Cheung & Co., for the Applicant.", "zh-HK": "申請人：由張雅棣律師行轉聘馬維騉大律師代表。" } }, { "doc_id": 12, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the reasons for judgment of the Court):", "zh-HK": "高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 12, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 12, "seg_id": 3, "translation": { "en": "The applicant (Cen Huakuo) pleaded not guilty to one count of Conspiracy to Deal with Property Known or Believed to Represent Proceeds of an Indictable Offence, which is commonly known as the offence of “money laundering”, and was tried before District Judge Sham (trial judge).", "zh-HK": "申請人(岑‍華‍擴)被控一項“串謀處理已知道或相信為代表從可公訴罪行的得益的財產”罪，俗稱“洗黑錢”罪。他否認控罪，並在區域法院法官沈‍小‍民(原審法官)席前受審。" } }, { "doc_id": 12, "seg_id": 4, "translation": { "en": "The applicant was convicted after trial and on 31 December 2013 was sentenced to 6 years’ imprisonment.", "zh-HK": "經審訊後，申請人被裁定罪名成立，並在2013 年 12 月 31 日被判監6 年。" } }, { "doc_id": 12, "seg_id": 5, "translation": { "en": "The applicant, represented by Mr Bruce Tse, applied for leave to appeal against sentence. After hearing, we granted leave to appeal and treated this application as the appeal proper. We allowed the appeal and reduced his sentence from 6 years to 4 years. The following are our reasons for judgment.", "zh-HK": "申請人不服判刑，由謝‍志‍浩‍大律師代表，提出申請，要求獲准就判刑上訴。經聆訊後，本庭批准上訴許可申請，並視其申請為正式上訴。本庭裁定申請人上訴得直，並將他的刑期由6 年減至4 年。以下是本庭的判案理由。" } }, { "doc_id": 12, "seg_id": 6, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 12, "seg_id": 7, "translation": { "en": "On 31 July 2013, the victim (an old lady surnamed Chan, aged 78) received a phone call from an unknown male in the afternoon. The male said that her son had committed some offences of indecency, and told her to pay $250,000 in order to ensure the safety of her son. Eventually, they agreed to reduce the amount to $50,000, and arranged to hand over the money at Fat Kwong Street Park.", "zh-HK": "受害人(一名78 歲的陳‍婆婆)在2013年 7 月 31 日下午接到不知名男子的來電，指她的兒子犯了一些淫褻罪行，要她支付25 萬元以確保她兒子的安全。最後雙方同意將金額減至5 萬元，並相約在佛光街公園交錢。" } }, { "doc_id": 12, "seg_id": 8, "translation": { "en": "When Madam Chan knew that her son was safe, she informed the police. As a result, she was arranged by the police to go to Fat Kwong Street Park to meet the culprit(s). The applicant appeared at the scene. He asked Madam Chan if she had brought along the money and told her that her son was being detained. The applicant was able to tell the name of Madam Chan’s son, and he also handed a mobile phone to Madam Chan for her to talk to another person. That person kept pressing Madam Chan over the phone and asked her why she had not brought along the money. Thereafter, the applicant told Madam Chan not to leave the park, but he would leave first. (Once he left,) he was arrested by the police officers who laid ambush in the vicinity.", "zh-HK": "陳婆婆知悉兒子安全後，知會警方，結果她被安排前往佛光街公園等候賊人。申請人在現場出現後問陳‍婆婆是否有帶錢，並向她表示其兒子遭人扣押。申請人能說出陳‍婆婆兒子的名字，並將手提電話交給陳‍婆婆和另一人通話。對方在電話不斷催促陳婆婆及問她為何仍沒有帶來金錢。其後申請人指示陳‍婆婆留在公園不要離開，而他則會先行離去，隨即遭在附近埋伏的警員拘捕。" } }, { "doc_id": 12, "seg_id": 9, "translation": { "en": "The applicant is 18 years old, a mainlander of clear record.", "zh-HK": "申請人18 歲，內地人，無刑事犯罪記錄。" } }, { "doc_id": 12, "seg_id": 10, "translation": { "en": "Trial judge’s reasons for sentence", "zh-HK": "原審法官的判刑理由" } }, { "doc_id": 12, "seg_id": 11, "translation": { "en": "The trial judge indicated that the applicant was one of the culprits who took part in the phone deception, because when he demanded money from Madam Chan, he clearly stated that her son was being detained. The trial judge considered that the applicant should be sentenced on the basis that he had taken part in the phone deception.", "zh-HK": "原審法官表示申請人有參與電話騙案，是賊人的一份子，原因是申請人向陳‍婆婆拿錢時，表明她的兒子給人扣押。原審法官認為應以申請人有份參與電話騙案來判刑。" } }, { "doc_id": 12, "seg_id": 12, "translation": { "en": "The trial judge made reference to the approach advocated in HKSAR v Hung Yung Chun [2011] 2 HKLRD 167, and pointed out the following views of the Court of Appeal:", "zh-HK": "原審法官參照香港特別行政區訴洪‍永‍俊[2011] 2 HKLRD 167 案的處理方法，指出上訴法庭的以下立場:" } }, { "doc_id": 12, "seg_id": 13, "translation": { "en": "(1)Phone deception cases are more serious than street deception cases and a higher sentence should be imposed because victims of phone deceptions believed that their children were being detained, so that they were under far greater fear and stress than those in street deception cases;", "zh-HK": "(一)電話騙案較街頭騙案更嚴重，量刑要更高，原因是電話騙案的受害人相信他們的子女被拘禁，他們受驚嚇程度和面對的壓力遠較街頭騙案為大;" } }, { "doc_id": 12, "seg_id": 14, "translation": { "en": "(2)Just as in street deception cases, the victims would lose all or most of their life savings; and", "zh-HK": "(二)和街頭騙案一樣，受害人會失去畢生或大部分積蓄;及" } }, { "doc_id": 12, "seg_id": 15, "translation": { "en": "(3)The appropriate starting point is 4 years’ imprisonment. On enhancement, an enhancement of 1/3 will do for now. However, should this type of cases become even more prevalent, the court may increase the rate of enhancement.", "zh-HK": "(三)恰當的量刑基準是4 年，如要加刑，幅度暫定為三分一，但如同類案件有變本加厲的跡象，法庭可將加刑幅度上調。" } }, { "doc_id": 12, "seg_id": 16, "translation": { "en": "The trial judge placed emphasis on the fact that the applicant was not the only one involved in the crime, but there were other culprits taking part in the conspiracy to commit the offence. Although what the applicant did was only to contact Madam Chan personally, the trial judge considered his role a crucial one because the scam would be very difficult to succeed were it not for the fact that he was willing to collect the money personally.", "zh-HK": "原審法官強調事件不只涉及申請人，更有其他賊人串謀去犯案。原審法官認為雖然申請人只是出面接觸陳‍婆婆，但其角色重要，原因是如非申請人願意出面收取騙款，賊人的騙局很難得逞。" } }, { "doc_id": 12, "seg_id": 17, "translation": { "en": "The trial judge adopted 4 years’ imprisonment as the starting point, and because this type of offence has been on the rising trend since 2009 – it reached its peak in 2013 – and there are signs that it is becoming even more prevalent, he decided to enhance the sentence by 50% to 6 years, thus the applicant was sentenced to 6 years’ imprisonment.", "zh-HK": "原審法官以4 年作為量刑基準，並因為同類案件自2009 年有上升趨勢，更在2013 年達到高峰，有變本加厲的跡象，決定將刑期加長50%至6 年。因此原審法官判申請人入獄6 年。" } }, { "doc_id": 12, "seg_id": 18, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 12, "seg_id": 19, "translation": { "en": "The major complaint of Mr Tse was that the trial judge was wrong to sentence the applicant on the basis of the underlying indictable offence. Mr Tse emphasized that the applicant was convicted of “money laundering” rather than any underlying indictable offence. He cited HKSAR v Chen Szu Ming（陳思銘）CACC 270/2005 and HKSAR v Xu Xia Li and Anor [2004]4 HKC 16 to support his view.", "zh-HK": "謝‍大律師的主要投訴是原審法官不應根據案中有關的可公訴罪行作出判刑。謝‍大律師強調申請人被定的是“洗黑錢”罪而非和案件有關的可公訴罪行。謝‍大律師援引HKSAR v Chen Szu Ming (陳‍思‍銘) CACC 270/2005，HKSAR v Xu Xia Li and Anor [2004]4 HKC 16 等案支持其立場。" } }, { "doc_id": 12, "seg_id": 20, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 12, "seg_id": 21, "translation": { "en": "All the defendants in the cases cited by Mr Tse relied on their ignorance of the indictable offence underlying the offence of “money laundering” as a mitigating factor. However, the position taken by the Court of Appeal was that their ignorance of the indictable offence could not be treated as a mitigating factor, because they were sentenced on the offence of “money laundering” and not the underlying indictable offence in connection with “money laundering”.", "zh-HK": "謝‍大律師援引的案例的被告人都以他們對“洗黑錢”罪行背後所涉的可公訴罪行不知情，為求情理由。上訴法庭的立場是他們對有關的可公訴罪行不知情並非求情理由，原因是他們是因為“洗黑錢”罪行而非和“洗黑錢”罪行有關的潛在可公訴罪行被判刑。" } }, { "doc_id": 12, "seg_id": 22, "translation": { "en": "A defendant must be sentenced on the offence of which he is convicted. However, when considering the appropriate sentence, the Court may of course take into account the overall circumstances of the case in so far as they are related to the defendant’s culpability. Mr Tse has no objection to that, and Chen Szu Ming mentioned above supports this approach. At paragraph 16 of the judgment, the Court of Appeal said:", "zh-HK": "被告人的判刑必須根據他被定罪的控罪作出，但作出判刑時，法庭當然可以考慮和被告人罪責有關的整體背景來作出適當判刑，對此，謝‍大律師不表異議，上述陳‍思‍銘 案亦支持以上處理方法，在判案書第16 段，上訴法庭指出:" } }, { "doc_id": 12, "seg_id": 23, "translation": { "en": "The trial judge’s reference to the approach adopted in Hung Yung Chun when he sentenced the applicant may be nothing more than an indication that he considered that he should take account of the objective circumstantial factors affecting the defendant’s culpability. His approach may not necessarily be improper.", "zh-HK": "原審法官判刑時，參照洪‍永‍俊 案的處理方法可能只反映他認為要將和被告人罪責有關的客觀環境考慮在內。原審法官的做法並非一定不妥。" } }, { "doc_id": 12, "seg_id": 24, "translation": { "en": "However, we cannot ignore the fact that the defendants of Hung Yung Chun pleaded guilty to the charge of conspiracy to defraud, and the facts they admitted showed that they had actively taken part in the phone deceptions, so they could not say that they knew nothing about the phone deceptions involved in that case. The defendants of Hung Yung Chun were sentenced on the basis that they took part in the acts of deception in connection with the case and that they knew about that. At paragraphs 13 and 14 of the judgment, the Court of Appeal gave a clear exposition of this stance:", "zh-HK": "但本庭不能忽視洪‍永‍俊 案的被告人承認串謀詐騙罪，而其承認的案情顯示他們有積極參與有關的“電話騙案”，因此他們不能表示對涉案電話騙案不知情。洪‍永‍俊 案的判刑是建基在被告人有份參與案件所涉的詐騙行為及對事件知情的。上訴法庭在判案書第13、14 段表明上述立場:" } }, { "doc_id": 12, "seg_id": 25, "translation": { "en": "“13.… both applicants pleaded guilty to conspiracy to defraud. The facts they had admitted also indicate their active participation in the scheme. Their acts were more serious than the ones in a general “money laundering” case.", "zh-HK": "“13…兩名申請人承認串謀詐騙罪，他們同意的案情亦顯示兩人積極參與計劃，其行為的嚴重性比一般「洗黑錢」者更甚。" } }, { "doc_id": 12, "seg_id": 26, "translation": { "en": "14.Both applicants claimed that before their arrest, they knew nothing at all about the phone deception cases. This claim is in contradiction with their guilty pleas to conspiracy to defraud and is to be rejected. Moreover, both of them had come to Hong Kong on many occasions to take part in those acts of deception. The 2nd Applicant even witnessed the arrest of her co-conspirator … when committing Charge 5. Therefore their professed ignorance of the crime committed by their co-conspirators is not to be believed at all.”", "zh-HK": "14.兩名申請人均聲稱自己在被捕前，對涉案電話騙案毫不知情。此等說法與他們承認串謀詐騙罪的答辯相悖，不能接納;加上他們均曾多次來港參與該等詐騙行為，第二申請人更在干犯第五項控罪時目睹同謀…落網，故他們對同謀者之犯罪行為不知情的說法絕不可信。”" } }, { "doc_id": 12, "seg_id": 27, "translation": { "en": "The sentences passed in of Hung Yung Chun were based on the fact that the defendants knew the details of the deception offences including the fact that the victims were put into fear because someone told them that their family members were being detained or beaten up, and the victims gave the culprits several hundred thousand dollars out of that fear. Owing to the above factors, the Court of Appeal was of the view that the culpability of the defendant of a phone deception case was more serious than that of the defendant of a street deception and thus adopted the starting point of 4 years.", "zh-HK": "洪‍永‍俊 案的判刑是建基在被告人知悉詐騙罪行的犯案詳情，包括受害人遭人恐嚇，指其家人遭人禁錮或毆打而受害人是在恐慌下向賊人支付數10 萬元。亦因為上述因素，上訴法庭認為電話騙案的罪責較街頭騙案更為嚴重而要採納4 年的量刑基準。" } }, { "doc_id": 12, "seg_id": 28, "translation": { "en": "In “money laundering” cases, some defendants have no knowledge or only have an incomplete and sketchy understanding about the indictable offence in connection with the “money laundering” offence, but some defendants, even though they have not taken part in the relevant indictable offence, may have detailed knowledge and understanding of it and are also aware of the adverse impact arising out of their acts of “money laundering”. The Court has to take into account these factors when considering the sentence.", "zh-HK": "在“洗黑錢”案件，某些被告人對和“洗黑錢”罪行有關的可公訴罪行不知情或只有一些偏面及粗略的理解，某些被告人即使沒有參與有關的可公訴罪行，但他們可能對該些罪有詳細的認知及了解，亦知悉他們的“洗黑錢”行為會做成的不良後果。在考慮適當判刑時，法庭須將上述因素考慮在內。" } }, { "doc_id": 12, "seg_id": 29, "translation": { "en": "The applicant did not take part in the deception, he told Madam Chan that her son was being detained, but that only shows his sketchy understanding about the relevant indictable offence and does not mean that he knew the details. When considering the applicant’s knowledge about the relevant indictable offence, the trial judge should not have interpreted the facts in the most unfavorable way against the applicant.", "zh-HK": "申請人沒有參與詐騙罪行，申請人向陳‍婆婆說其兒子遭人捉著只顯示他對有關的可公訴罪行有粗略的理解，不代表他知悉詳情。在考慮申請人對有關可公訴罪行的認知時，原審法官不應以對申請人最不利的方式銓釋案情。" } }, { "doc_id": 12, "seg_id": 30, "translation": { "en": "The prosecution evidence was insufficient to show that the applicant knew the culprits did tell Madam Chan that harm would be done to her son as he had committed some offences of indecency. The trial judge considered that what happened was equivalent to kidnapping Madam Chan and that she was subjected to far greater fear and stress than those experienced by victims in street deception cases, and he blamed the applicant for that. In the circumstances of the present case, this approach was unfair to the applicant.", "zh-HK": "控方證據不足以證明申請人知悉賊人有向陳‍婆婆聲稱其兒子犯了因某些淫褻行為而會被人傷害。原審法官以事件如同綁架陳婆婆，令她受驚嚇和壓力的程度遠比街頭騙案為大歸罪於申請人。以本案的背景而言，上述的處理方法對申請人是不公平的。" } }, { "doc_id": 12, "seg_id": 31, "translation": { "en": "In any event, the criminal acts of the defendants in Hung Yung Chun were far more serious than that of the applicant. The applicant did not take part in the relevant deception offence, and it is very likely that he was just instructed to collect money from Madam Chan.", "zh-HK": "無論如何，洪‍永‍俊 案的被告人的罪行遠較申請人的罪行嚴重。申請人沒有參與有關的詐騙罪行，亦極有可能只是遭人指使去向陳‍婆婆收錢。" } }, { "doc_id": 12, "seg_id": 32, "translation": { "en": "Although the applicant must have known that the money collected from Madam Chan was obtained unlawfully and the incident was in connection with the phone deception, it was too harsh to apply the starting point in Hung Yung Chun to him.", "zh-HK": "雖然申請人必然知悉向陳‍婆婆收取的金錢是非法獲得而事件和電話騙案有關，但以洪‍永‍俊 案所採納的量刑基準施用於申請人身上屬過份嚴苛。" } }, { "doc_id": 12, "seg_id": 33, "translation": { "en": "Mr Eddie Sean, Senior Assistant Director of Public Prosecutions for the respondent, agreed that the trial judge should not have used phone deception as the basis for sentencing. However, he stressed that as far as “money laundering” offences are concerned, there were many aggravating factors in the present case, such as, the applicant knew that the underlying offence was phone deception, he was from the Mainland and the offence was committed by an organized criminal gang etc. Mr Sean emphasized that many of the aggravating factors set out in HKSAR v Boma [2012] 2 HKLRD 33 could be identified in the present case. He was of the view that the trial judge was right in adopting 4 years as the starting point.", "zh-HK": "代表答辯人的高級助理刑事檢控專員單‍偉‍琛同意原審法官不應以電話騙案作為判刑的基礎，但強調以“洗黑錢”案件而言，本案亦有甚多加重罪責因素，包括申請人知悉背後罪行是電話騙案、申請人來自內地及案件是由有組織犯罪集團犯案等。單‍專‍員強調本案具HKSAR v Boma [2012] 2 HKLRD 33案列出的多項加重罪責因素。單‍專員認為原審法官採納的4 年量刑基準是正確的。" } }, { "doc_id": 12, "seg_id": 34, "translation": { "en": "Aggravating factors may vary in different cases. In respect of “money laundering” offences, the amount of the “black money” involved is certainly a major sentencing consideration (see paragraph 38 of the judgment of Boma and paragraph 44 of the judgment of HKSAR v Ngai Fung Sin Apple [2013] 5 HKLRD 95). The amount of the “black money” involved in this case is $50,000. The starting point of 4 years adopted by the trial judge is still manifestly excessive even if sentencing is considered from the point of view most unfavorable to the applicant. His approach of enhancing the sentence by 50% due to the rising trend of this type of offence is also too severe. In fact, there is no authority to support the trial judge’s enhancement by 50%. We do not consider it a proper approach, especially on the facts of this case.", "zh-HK": "不同案件都可能會有不同的加重罪責因素，但以“洗黑錢”罪行而言，涉案“黑錢”的數額必然是判刑的主要因素(見Boma案判案書第38段和香港特別行政區訴倪‍鳳‍仙 [2013] 5 HKLRD 95案判案書第44段)。本案涉及的“黑錢”是5 萬元，即使以對申請人最不利的角度考慮判刑，原審法官採納的4 年量刑基準屬明顯過重。而他因同類案件有上升趨勢而將刑期加長50%亦屬過份嚴苛。事實上過往並沒有案例支持原審法官加刑50%的處理方法，本庭亦不認同該處理方法，特別是以本案的案情而言。" } }, { "doc_id": 12, "seg_id": 35, "translation": { "en": "“Money laundering” is a serious offence, and worse still, the applicant came from the Mainland to commit crime here. Although the young applicant is only 18 years old and has no criminal record, he cannot expect leniency from the Court. The “black money” involved was derived from phone deception and the applicant knew the source of the “black money”. All these constitute aggravating factors (see Secretary for Justice v Lau Man Ying [2012] 4 HKLRD 429 and Xu Xia Li).", "zh-HK": "“洗黑錢”是嚴重罪行，而申請人更是內地人士來港犯案。雖然申請人年輕，只有18 歲，沒有刑事犯案記錄，但他亦不能期望法庭會輕判。涉案的“黑錢”源自電話騙案，而申請人亦知悉“黑錢”的來源，這些都構成加重罪責因素(見律政司司長訴劉‍文‍英[2012] 4 HKLRD 429及Xu Xia Li等案)。" } }, { "doc_id": 12, "seg_id": 36, "translation": { "en": "Taking into account all the circumstances of the case and the requirement that a sentence should have deterrent effect in order to prevent mainlanders from taking part in such an abhorrent and despicable offence like “phone deception” in whatever manner, we are of the view that the appropriate starting point is 3 years’ imprisonment, and the sentence should be enhanced by one-third pursuant to the Organized and Serious Crimes Ordinance.", "zh-HK": "考慮到案件的整體背景及判刑須具阻嚇力避免內地人士以任何形式參與“電話騙案”這類極為令人討厭及不恥的罪行，本庭認為適當的量刑基準為3 年，而根據《有組織及嚴重罪行》條例加刑的幅度應為三分一。" } }, { "doc_id": 12, "seg_id": 37, "translation": { "en": "The total sentence of the applicant should be 4 years’ imprisonment. Accordingly, we grant the applicant’s application for leave to appeal and, treating his application as the appeal proper, allow the applicant’s appeal and reduce his term of imprisonment from 6 years to 4 years.", "zh-HK": "申請人的總刑期應為4 年監禁。因此，本庭批准申請人就判刑提出的上訴許可申請，並視其申請為正式上訴。本庭裁定申請人上訴得直，並將其刑期由6 年減至4 年。" } }, { "doc_id": 12, "seg_id": 38, "translation": { "en": "Bruce Tse, instructed by Messrs Patrick Mak & Tse and assigned by the Legal Aid Department, for the applicant", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員單偉琛代表。" } }, { "doc_id": 12, "seg_id": 39, "translation": { "en": "Eddie Sean, Senior Assistant Director of Public Prosecutions, for the respondent", "zh-HK": "申請人：由法律援助署委派麥家榮律師行轉聘大律師謝‍志‍浩代表。" } }, { "doc_id": 13, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the judgment of the Court):", "zh-HK": "高等法院上訴法庭副庭長楊振權頒發上訴法庭判案書：" } }, { "doc_id": 13, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 13, "seg_id": 3, "translation": { "en": "The applicant Ma Ming pleaded guilty before Deputy District Judge Joseph To (“the trial judge”) to one count of conspiracy to aid, abet, counsel and procure the transfer to another travel documents (the 1st charge) and one count of aiding, abetting, counselling or procuring the transfer to another a travel document (“the 5th charge”). He was sentenced to a total term of imprisonment of three years. The trial judge took four and a half years and two years as the respective starting points of the two charges, and then reduced them by one third to three years and 16 months respectively on account of the applicant’s pleas of guilty. The sentences were ordered to run concurrently, making a total sentence of three years.", "zh-HK": "申請人（馬明）在區域法院暫委法官杜浩成（原審法官）席前承認一項串謀協助、教唆、慫使及促致向另一人轉讓旅行證件罪（第一項）及一項協助、教唆、慫使及促致向另一人轉讓旅行證件罪（第五項）後，被判入獄共3年。原審法官分別以4年半及2年作為該兩項控罪的量刑基準，並因申請人認罪而將刑期扣減三分一至3年及16個月。原審法官下令兩項控罪同期執行而達致最終的3年總刑期。" } }, { "doc_id": 13, "seg_id": 4, "translation": { "en": "The applicant felt aggrieved at the sentence of the first charge, the conspiracy charge and, with Mr. David Ma of counsel acting for him, applied for leave to appeal against the sentence.", "zh-HK": "申請人不服第一項串謀控罪的判刑，現由馬維騉大律師代表提出申請，要求獲准就判刑上訴。" } }, { "doc_id": 13, "seg_id": 5, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 13, "seg_id": 6, "translation": { "en": "On 30 April 2011, someone placed an advertisement on the Oriental Daily News, offering to buy passports and left a contact telephone number. Subsequently, an undercover officer made a call at that telephone number and told the person on the other side of the phone (Mr. Wong) that he wanted to sell his HKSAR passport. Mr. Wong arranged with the undercover officer to meet [each other] at 6 p.m. on the same day in a male toilet at the Sheung Shui station of the MTR. The undercover officer met the applicant at the appointed location and handed a HKSAR passport to him, who paid $1,000 to the undercover officer as the price for buying the passport. Upon the completion of the transaction, the applicant left the toilet and at that moment he was arrested by law enforcing officers, who were waiting outside the toilet. Apart from the HKSAR passport, which was the subject-matter of the transaction, the officers found in the applicant’s backpack another passport, the holder of which was Tang X X. The younger brother of Tang X X admitted that he sold Tang’s passport to the applicant for $600 without his elder sister’s consent.", "zh-HK": "2011年4月30日，有人在東方日報刊登廣告，徵求他人出售護照，並留下聯絡電話。其後有卧底人員打該電話並向對方（王先生）表示希望出售其香港特區護照。王先生約了卧底人員在同日下午約6時在港鐵上水站的男廁內見面。卧底人員在應約地點見到申請人，並將一本香港特區護照交了給申請人，而申請人則支付了1,000元給卧底人員作為購入該護照的代價。交易完成後，申請人離開廁所時，遭在廁所外等候的執法人員拘捕。除了上述交易涉及的香港特區護照外，執法人員在申請人的背囊搜出另一本持有人為鄧XX的護照。鄧XX的弟弟承認在未得其姐姐同意下，將其護照以600元出售給申請人。" } }, { "doc_id": 13, "seg_id": 7, "translation": { "en": "Having been arrested, the applicant admitted to the police officers that he, at the bidding of Ah Kun, placed [an] advertisement on [a] newspaper, offering to buy passports at the price of $700 to $1,000 each. He said he could earn a reward of RMB 200 for each passport. He said that within two to three months he acquired ten odd passports, which he gave to Ah Kun, who then took them to the Mainland for sale. This confession formed the factual basis of the 1st charge, the conspiracy charge, against the applicant.", "zh-HK": "申請人被捕後向警員承認受“阿坤”指使登報以每本700至1,000元徵收護照，而他則可獲每本200元人民幣的報酬。申請人聲稱在兩個多月內，成功收集了10多本護照，並將護照交了給“阿坤”，而“阿坤”則將護照帶入內地轉售。上述招認構成了針對申請人的第一項串謀控罪的基本事實。" } }, { "doc_id": 13, "seg_id": 8, "translation": { "en": "The applicant was 42 years old. He had two previous convictions, which were about offences of a nature different from that of this case, but both involved dishonesty. He had been sentenced to imprisonment of the terms of six months’ and eight months.", "zh-HK": "申請人42歲，有兩項定罪記錄，和本案性質不同，但都涉及不誠實行為。申請人曾遭判監6個月和8個月。" } }, { "doc_id": 13, "seg_id": 9, "translation": { "en": "The applicant had divorced and remarried. He has two step children, who are six and seven years old respectively.", "zh-HK": "申請人離婚後再婚，有一對六、七歲的繼子女。" } }, { "doc_id": 13, "seg_id": 10, "translation": { "en": "He emphasized that he was not the mastermind and that it was for financial reasons that he committed the offences. He said he pleaded guilty on his own initiative and was remorseful, and he asked for leniency.", "zh-HK": "申請人強調自己並非主謀而是因為經濟理由而犯案，他表示自己主動認罪亦對事件有悔意，故望輕判。" } }, { "doc_id": 13, "seg_id": 11, "translation": { "en": "Sentences passed by the trial judge", "zh-HK": "原審法官的裁決" } }, { "doc_id": 13, "seg_id": 12, "translation": { "en": "The trial judge considered that arrangements between Hong Kong and other countries concerning visa-free entry for tourism were constantly increasing, that Hong Kong had the duty to ensure that HKSAR passports would not fall into the hands of criminals, and that therefore the sentences passed by the court should have a deterrent effect.", "zh-HK": "原審法官認為近年香港和各地免簽證旅遊安排不斷增加，香港有責任確保香港特區護照不會落在犯罪份子手中，故法庭應判處具阻嚇性判刑。" } }, { "doc_id": 13, "seg_id": 13, "translation": { "en": "The trial judge placed emphasis on the fact that the applicant conspired with another person to abet and procure over just a short period of time from ten odd people the transfer of passports to the applicant, and that the passports were then taken to the Mainland for sale to make a profit. The element of cross-boundary crime in the present case made it a more serious one among this kind of cases.", "zh-HK": "原審法官強調申請人在短時間與另一人串謀教唆及促致10多人將護照轉讓給他，再交到內地轉售圖利，故案件具跨境犯罪因素，是同類案件中較嚴重的一宗。" } }, { "doc_id": 13, "seg_id": 14, "translation": { "en": "The trial judge commented that the way in which the applicant perpetrated the crimes was not stupid, and that even if he was not the mastermind, he played an important role in this case.", "zh-HK": "原審法官亦認為申請人的犯案手法並不愚蠢，而即使他不是主腦，亦有在罪行中扮演主要角色。" } }, { "doc_id": 13, "seg_id": 15, "translation": { "en": "The trial judge held that the appropriate starting points for the 1st and the 5th charges were respectively four and a half years and two years. He reduced the terms by one third to three years and 16 months by reason of the applicant’s guilty pleas, and ordered that the two sentences be run concurrently, making a total sentence of three years.", "zh-HK": "原審法官認為第一和第五項控罪的適當量刑基準為4年半及2年。因申請人承認控罪，原審法官將刑期扣減三分一至3年及16個月。原審法官下令兩項控罪的判刑同期執行，而達至3年的總刑期。" } }, { "doc_id": 13, "seg_id": 16, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 13, "seg_id": 17, "translation": { "en": "Mr. Ma pointed out that the Court of Appeal had not laid down any sentencing guideline for this or similar kind of cases, but he stressed that the usual starting point for the offence of transfer to another a travel document was 12 months’ imprisonment.", "zh-HK": "馬大律師指出上訴法庭並沒有就同類案件作出判刑指引，但強調“向他人轉讓旅行證件”罪一般的量刑基準是12個月監禁。" } }, { "doc_id": 13, "seg_id": 18, "translation": { "en": "Mr. Ma agreed that the culpability of a person who tempted people with money to sell their passports ought to be higher than that of someone who just sold his passport, but he argued that the starting point should not be as high as four and a half years.", "zh-HK": "馬大律師同意以金錢利誘他人出售護照的罪責較出售護照者的罪責為重，但量刑基準不應高至4年半。" } }, { "doc_id": 13, "seg_id": 19, "translation": { "en": "Mr. Ma submitted that in HKSAR v Cheung Wai Ming (CACC 32/2005) the defendant bought a HKSAR passport from a law enforcing officer who went undercover, and was charged with a single count of aiding, abetting, counseling or procuring the transfer to another of a travel document. He pleaded guilty and was sentenced to 26 months’ imprisonment. The Court of Appeal said that while the starting point (equivalent to three years and three months) from which the sentence of 26 months was arrived at was not, in so far as a single passport was concerned, manifestly excessive, it might have been on the high side.", "zh-HK": "馬大律師強調在HKSAR v Cheung Wai Ming（張偉明）（CACC 32/2005）案，被告人亦是因向一名卧底執法人員以1,000元收購香港特區護照而被控告一項協助、教唆、慫使或促致向另一人轉讓旅行證件罪，結果他認罪後，被判入獄26個月。上訴法庭認為，以涉及單一護照而言，26個月的判刑（等同3年3個月）的量刑基準並非明顯過重，但可能屬較高的一端。" } }, { "doc_id": 13, "seg_id": 20, "translation": { "en": "Mr. Ma averred that the applicant’s culpability was more or less on a par with that of the defendant in Cheung Wai Ming. He further said that if the case had something to do with a syndicate engaged in buying and selling passports, the actual number of passports involved was not the most material consideration.", "zh-HK": "馬大律師力稱申請人的罪責和張偉明案的被告人的罪責相若。馬大律師更指如案件涉及一個買賣護照集團，涉案的實質護照數量並非是最重要的考慮因素。" } }, { "doc_id": 13, "seg_id": 21, "translation": { "en": "Mr. Ma pressed the point that the applicant became charged with the 1st charge as a result of his cooperation with the police and his frank confession. He submitted that for this reason the applicant was entitled to a further discount over and above the one third discount.", "zh-HK": "馬大律師強調申請人是因為和警方合作，坦白招認而導致被控第一項控罪，故他應獲得超過三分一的額外刑期扣減。" } }, { "doc_id": 13, "seg_id": 22, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 13, "seg_id": 23, "translation": { "en": "The further discount argued for by Mr. Ma was a discount in addition to the one third discount. In his written submission Mr. Ma did not provide any authorities which could support his argument. Later, at the behest of the court, a number of cases were submitted by the parties, which showed that there were occasions on which the court had exercised its discretion to give more than a one-third discount in the case of a defendant who voluntarily confessed and pleaded guilty to certain offences notwithstanding a lack of evidence from the prosecution to link the offences to him. The authorities submitted by the parties included SJ v Tsui Kim-ming Simon CAAR 4/1997, HKSAR v Ng Wing Chung CACC 176/2005, HKSAR v Tsang Kai On CACC 79/2010 and HKSAR v Hui Chi Tong CACC 414/2007. In these cases the defendants frankly disclosed the details of the commission of certain crimes and made a clean breast of their guilt. Had they not done so, the prosecution had no evidence against them at all. As a result, after they pleaded guilty they were given a discount of more than one third. There was no hard and fast rule as to the extent to which the further discount should be made, but it was not more than several months. In a case in which the starting point was more than ten years, the extent of the further discount was only six months.", "zh-HK": "馬大律師所指的額外刑期扣減是超過三分一的刑期扣減。馬大律師並沒有在其書面陳述列出支持其立場的案例。其後在法庭的督促下，雙方向法庭呈交數宗案例，顯示法庭曾行使酌情權，在控方沒有證據支持控罪，而被告人是自動招認及承認控罪時，法庭可以給予被告人超過三分一的刑期扣減。雙方呈交給法庭的案例包括SJ v Tsui Kim-ming Simon CAAR 4/1997、HKSAR v Ng Wing Chung CACC 176/2005、香港特別行政區訴曾繼安 CACC 79/2010和HKSAR v Hui Chi Tong CACC 414/2007等案。在上述案件，被告人都是向執法機構坦白道出犯罪詳情及作出招認，否則控方是完全沒有證據指控他們的。結果在被告人認罪後，法庭給予他們超過三分一的刑期扣減。法庭給予被告人的額外刑期扣減幅度並沒有規範，但不多過數個月而在一宗量刑基準超過10年的案件，額外扣減幅度亦只是6個月。" } }, { "doc_id": 13, "seg_id": 24, "translation": { "en": "Where a suspect under arrest voluntarily discloses to a law enforcing authority the details of his commission of certain crimes, so that the authority obtains evidence of his guilt, that certainly is an element of leniency. In R v Ellis (1986) 6 NSWLR 603 the Supreme Court of New South Wales called this element a significant added element of leniency.", "zh-HK": "一名被拘捕的嫌疑犯，自願向執法機構供認其犯罪詳情，令執法機構取得針對他的罪證，當然是減刑因素。在R v Ellis (1986) 6 NSWLR 603，澳洲新南威爾斯最高法院將該項減刑因素形容為significant added element of leniency（額外顯著的從寬判刑因素）。" } }, { "doc_id": 13, "seg_id": 25, "translation": { "en": "In paragraph 25 of the judgment of Hui Chi Tong the Court of Appeal said:", "zh-HK": "上訴法庭在Hui Chi Tong案的判案書第25段有以下詳論：" } }, { "doc_id": 13, "seg_id": 26, "translation": { "en": "In Tsang Kai On, the Court of Appeal made similar comments in paragraph 14 of the judgment:", "zh-HK": "在曾繼安案，上訴法庭在判案書的第14段亦有以下的相類似詳論：" } }, { "doc_id": 13, "seg_id": 27, "translation": { "en": "“That the applicant still voluntarily pleaded guilty notwithstanding a lack of sufficient evidence from the Prosecution showed that he was genuinely remorseful. In these circumstances, the court should give a further discount to the applicant as an encouragement. This is also in the public interest…”", "zh-HK": "“申請人在控方證據不足下仍然自願認罪，可見他是真誠懊悔。在此情況下，法庭應給予申請人額外扣減，以作鼓勵。此舉亦符合公眾利益…”" } }, { "doc_id": 13, "seg_id": 28, "translation": { "en": "In the above cases the court did not indicate by how much more the sentence should be reduced when giving this further discount. In Ellis, the Supreme Court of New South Wales remarked that “the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.”", "zh-HK": "在上述案件，法庭並沒有列明額外刑期扣減的幅度。在Ellis案，澳洲新南威爾斯最高法院認為“扣減幅度應根據如被告人沒有招認時，執法機構能破案及能成功將有關人等定罪的可能性而定”（the degree of which will vary according to the degree of likelihood of that guilty being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.）。" } }, { "doc_id": 13, "seg_id": 29, "translation": { "en": "However, from a practical point of view, it is surely no easy matter to decide in individual cases how much the further discount should be according to the above-mentioned criterion.", "zh-HK": "但從實際角度來考慮，在個別案件以上述理由來決定額外的扣減刑期幅度，絕非容易。" } }, { "doc_id": 13, "seg_id": 30, "translation": { "en": "Since the mid 1990s the courts in Hong Kong have adopted the sentencing policy that if a defendant enters a timely plea of guilty, as a rule he is entitled to one third discount on the sentence he would otherwise receive. In HKSAR v Chui Chi Wai & Another (No. 2) [2000] 1 HKLRD 704, the Court of Appeal had this to say on page 707 E-F:", "zh-HK": "自上世紀90年代中開始，香港法庭採納了一項判刑政策，就是如被告人“適時”認罪（timely plea），他一般會獲得三分之一的刑期扣減。在HKSAR v Chui Chi Wai & Another (No 2) [2000] 1 HKLRD 704案判案書第707頁E-F行，上訴法庭有以下說法：" } }, { "doc_id": 13, "seg_id": 31, "translation": { "en": "The theoretical basis of the principle of giving a discount to a defendant on his sentence who timely pleads guilty was examined by the High Court of Australia in R v Cameron [2002] 187 ALR 65. The significance of a plea of guilty was explained by Gaudron, Gummow and Callinan JJ in their joint judgment as follows:", "zh-HK": "給予一名“適時”認罪的被告人刑期扣減的理論基礎在R v Cameron [2002] 187 ALR 65案獲澳洲最高法院審視。Gaudron, Gummow 和 Callinan法官在其聯合判案書中指出認罪的關鍵性如下：" } }, { "doc_id": 13, "seg_id": 32, "translation": { "en": "“It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v R it was said:", "zh-HK": "“認罪作為減刑理由早已確立。Siganto v R案表明：" } }, { "doc_id": 13, "seg_id": 33, "translation": { "en": "‘... a plea of guilty is ordinarily a matter to be taken into account in mitigation: first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial ...’", "zh-HK": "‘認罪一般而言是減刑理由，首先，它通常表示犯案者有悔意，除此之外，從實際角度而言，犯案者認罪導致社會無需浪費資源進行審訊…’" } }, { "doc_id": 13, "seg_id": 34, "translation": { "en": "It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.”", "zh-HK": "明顯地，悔意並非認罪所表示的唯一要點。認罪亦表示犯案者承認責任及願意和執行公義過程充份合作。”" } }, { "doc_id": 13, "seg_id": 35, "translation": { "en": "Kirby J went further and clearly stated on page 81:", "zh-HK": "Kirby法官更在判案書第81頁表明：" } }, { "doc_id": 13, "seg_id": 36, "translation": { "en": "“... The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount. Nevertheless, where genuine remorse is established to the satisfaction of the sentencing judge, it may be in the public interest to mitigate punishment further as a reinforcement for the prisoner’s resolve to avoid repetition of such conduct in the future and as an example to others. However, ‘remorse’ is not, as such, a precondition for the provision of a discount for a plea of guilty. There are other features of the public interest that need to be given weight.", "zh-HK": "“認罪所引發的刑期扣減之真確基礎並非作為悔意或其會導致的後果的獎賞，而是扣減是符合公眾利益的。當然，一名犯罪者真心悔過，給予他額外減刑亦符合公眾利益，以加強該名犯案者改過之決心，及作為他人之借鏡。但‘悔意’並非認罪而導致刑期扣減的先決條件，有其他公眾利益因素需給予比重。" } }, { "doc_id": 13, "seg_id": 37, "translation": { "en": "The main features of the public interest, relevant to the discount for a plea of guilty … include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service...", "zh-HK": "和認罪導致刑期扣減之公眾利益主要特點包括犯案者認罪（一）會令社會免卻審訊必會導致之不便和其他代價；（二）會減省司法程序，法庭設施，控方檢控程序，法律援助，證人費和陪審員費用的支出及免卻陪審員面對之不便。" } }, { "doc_id": 13, "seg_id": 38, "translation": { "en": "… it is in the public interest to facilitate pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a real contest about guilt. Doing this helps ease the congestion in the courts that delay the hearing of such trials as must be held. It also encourages the clear-up rate for crime and so vindicates public confidence in the processes established to protect the community and uphold its laws. A plea of guilty may also help the victims of crime to put their experience behind them; to receive vindication and support from their families and friends and possibly assistance from the community for injuries they have suffered. Especially in cases of homicide and sexual offences, a plea of guilty may spare the victim or the victim’s family and friends the ordeal of having to give evidence.”", "zh-HK": "有罪人士承認控罪令審訊只需處理確有爭議的案件亦是符合公眾利益的。這樣會減低法庭因案件眾多而導致之延誤，亦會加快處理罪案，加強公眾對保障社會秩序的過程及執法之信心。罪犯認罪亦會加快受害人忘掉不快的經驗，令事件獲得澄清和令他們得到家庭、朋友或社會的幫助以減低他們所承受的傷痛。而在兇殺和性侵犯案件，犯案者認罪更會免卻受害人或其家家人、朋友因要作供而面對的折磨。”" } }, { "doc_id": 13, "seg_id": 39, "translation": { "en": "If unfruitful contest, delay and unnecessary expense of resources can be avoided, so that the court’s time can be allocated to cases which warrant more of its attention, thus ensuring that judicial proceedings will proceed more expeditiously and more efficiently, then giving the defendant who timely pleads guilty a one third discount is a policy decision which serves the public interest.", "zh-HK": "避免無謂爭拗、延誤及浪費資源，令法庭能抽出時間處理一些更應當處理的案件，確保司法程序能更快捷及更有效地進行，給予一名“適時”認罪的被告人三分一的刑期扣減是符合公眾利益的政策決定。" } }, { "doc_id": 13, "seg_id": 40, "translation": { "en": "A discount of one third is quite a substantial discount. One of the main purposes of the court giving this one third discount to a defendant who pleads guilty is to encourage a guilty person to own up to the crimes he committed, so as to conserve the resources of the community and to ensure that justice can be administered more efficiently and matters can be concluded in the most expeditions manner.", "zh-HK": "三分一的刑期扣減是極可觀的減刑幅度。法庭給予認罪的被告人三分一的刑期扣減的主要目的之一是鼓勵有罪的人坦白認罪，以節省社會資源，確保執行公義能更有效及能盡快處理完畢。" } }, { "doc_id": 13, "seg_id": 41, "translation": { "en": "Difficulties and disputes may arise in carrying out this policy of giving a one third discount and in deciding what a timely plea of guilty is. Since there is a period of time between the moment when a suspect is put under arrest and the time when he appears in court to face the charge or charges, what happened during that period of time and the attitude taken by the suspect might influence the sentencing decision. If the court has to take into account all these factors before passing sentence, not a few disputes may arise and the sentence that will be passed ultimately would become uncertain. To give one example: Is a defendant who admits his guilt forthwith at the outset and cooperates with the prosecution entitled to a larger discount on his sentence when compared with a defendant who makes up his mind to plead guilty only when the trial begins? Many people will think that the answer is yes and, on the face of it, it seems reasonable. However, in order to put this kind of thinking into practice, the court may very likely have to go into fine distinctions and subtle differences between different cases and adjust the sentences according to such niceties and subtleties. Such an approach would lengthen and complicate the court proceedings, increase costs, adversely affect court efficiency and delay the handling of cases which genuinely require the court’s attention. It not only goes contrary to the policy and basic objective of giving a one third discount, but is also against public interest.", "zh-HK": "在執法三分一刑期扣減的政策及決定何謂“適時”認罪時，亦會面對困難及爭議。一名疑犯由被拘捕至出庭面對控罪會有一段時間，期間發生的事項及該名疑犯的取態對判刑都可能有影響。如法庭要將該些因素全部考慮在內，才作出判刑，會引起甚多爭議而最終的判刑亦可能變得不明確。例如一名一開始就承認控罪並和控方合作的被告人和另一名在開審時才決定認罪的被告人相比，是否應獲得更大的刑期扣減呢？很多人會認為答案是應該的，而表面上該想法亦是合理的。但要執行該類想法時，法庭極可能要考慮極為細微的因素，並根據該些細微因素而調整判刑。這樣的做法會延長司法程序及令司法程序複雜，增加費用和影響法庭的效率，對其他確要法庭處理的案件造成延誤，不但和三分一刑期扣減的政策和基本目的有抵觸，亦不符合公眾利益。" } }, { "doc_id": 13, "seg_id": 42, "translation": { "en": "In view of this, when giving the one third discount the approach taken by the court is a firm and broad-brush approach. It gives a defendant who timely pleads guilty the one third discount, which is substantial, without regard for niceties, in order to discourage excessive arguments and to prevent wasteful use of the resources of the community.", "zh-HK": "因此在執行三分一刑期扣減時，法庭會採納較為堅定及粗線條的處理方法，給予一名“適時”認罪的被告人可觀的三分一刑期扣減而不去理會一些細微的因素，避免過多爭拗，浪費社會資源。" } }, { "doc_id": 13, "seg_id": 43, "translation": { "en": "In SJ v Lee Chun Ho Jeef [2009] 6 HKC 471, this court gave a clear exposition of this stance. At A-C on page 44 [sic] 7 of the judgment the Court of Appeal pointed out that:", "zh-HK": "本庭在SJ v Lee Chun Ho Jeef [2009] 6 HKC 471案，就上述立場作出了明確的表述。在該判案書第447A-C段，上訴法庭指出：" } }, { "doc_id": 13, "seg_id": 44, "translation": { "en": "The applicant cooperated with the police and after he was arrested he frankly confessed. This led to his being charged with the 1st charge. We are of the view that this factor should also be subsumed within the one third discount, and should not be treated as a reason for giving any discount more than one third. Otherwise, it would be in conflict with the policy and purpose of giving the one third discount. Not only would it create uncertainly but also it would give rise to disputes, and so it is against public interest.", "zh-HK": "本庭認為申請人和警方合作，在被捕後坦白招認而導致被控第一項控罪這因素亦應歸納在三分一刑期扣減之內，而非導致超過三分一刑期扣減的因素，否則會和三分一刑期扣減的政策和目的有抵觸，不但構成不明確因素，更會導致爭拗，和公眾利益不符。" } }, { "doc_id": 13, "seg_id": 45, "translation": { "en": "When dealing with individual cases and when considering the totality of the sentence, the court, in exercising its discretion, can take into account the fact that the frank confession of the defendant provides the only evidence which support the charge or charges and therefore make minor adjustments to the total sentence. To this we do not object. However, this factor does not support the argument that this kind of defendants must be given a further discount over and above the one third discount. If the court does not give such defendants any discount in addition to the one third discount, that does not constitute an arguable ground of appeal.", "zh-HK": "本庭不反對在個別案件及在處理整體判刑時，法庭可以行使酌情權，因為被告人的坦白招認是唯一支持控罪的證據，而將整體判刑作出輕微調整。但該因素不支持法庭必需給予該類被告人超過三分一的額外刑期扣減的立場。在法庭沒有給予該類被告人超過三分一的額外刑期扣減時，該因素亦非可爭拗的上訴理由。" } }, { "doc_id": 13, "seg_id": 46, "translation": { "en": "In giving the one third discount to the applicant upon his pleading guilty, the trial judge had already taken into account the applicant’s cooperation with the police, his voluntary confession and his guilty plea entered in court. That he was denied a further discount in addition to the one third discount cannot constitute a reasonable complaint, nor can it be a ground of appeal against sentence. This ground put forward by Mr. Ma is not substantiated.", "zh-HK": "原審法官因申請人承認控罪而給予他三分一的刑期扣減已包括了申請人和警方合作、自動招認及在法庭上承認控罪等因素。申請人不能以未能獲得超過三分一的額外刑期扣減而有合理投訴，更不能以此為上訴理由，要求減刑。馬大律師提出的這一點上訴理由不成立。" } }, { "doc_id": 13, "seg_id": 47, "translation": { "en": "We agree with the trial judge’s view that the illegal selling of passports belonging to others is a serious crime. The people who buy other people’s passports will certainly use such passports which they obtained by illegal means for doing something illegal, including serious crimes. Therefore, a person who helps, in whatever manner, other people to unlawfully obtain passports belonging to others indirectly helps those people to commit crimes.", "zh-HK": "本庭同意原審法官的看法，非法販賣他人護照是一項嚴重罪行。購買他人護照的人必然是利用非法取得的護照來進行其他犯罪活動，包括嚴重罪行活動，因此以任何形式協助他人非法獲得別人的護照，亦是間接協助他人犯罪。" } }, { "doc_id": 13, "seg_id": 48, "translation": { "en": "The trial judge correctly pointed out that in recent years tourism arrangements between Hong Kong and other countries concerning visa-free entry were constantly increasing. The court has the duty to deter commission of crimes in this area, so as to safeguard the integrity and reliability of the HKSAR passport.", "zh-HK": "誠如原審法官指出，近年香港和世界各地免簽證的旅遊安排不斷增加，法庭有責任阻嚇有關罪行，確保香港特區護照的完整及可信賴性。" } }, { "doc_id": 13, "seg_id": 49, "translation": { "en": "We do not agree with Mr. Ma’s argument that the number of passports involved is immaterial. In paragraph 6 of the judgment of Cheung Wai Ming, the Court of Appeal specifically underscored the fact that the sentence in that case was passed on the basis that only one passport was involved. The necessary implication must be that if more than one passport was involved, the sentence should have been heavier.", "zh-HK": "本庭不同意馬大律師的立場，指涉案護照的數目不重要，在上述張偉明案，上訴法庭在判案書第6段特別強調該案的判刑是建基在案件只涉及單單一本護照的事實上，其含意必然是如案件涉及多過一本護照時，則判刑必然應較重。" } }, { "doc_id": 13, "seg_id": 50, "translation": { "en": "Ten odd passports were involved in this case. If all these passports got into the hands of criminals, the community and the integrity and reliability of the HKSAR passport would have been adversely affected to a considerable extent. As far as the 1st charge is concerned, the four and a half years starting point adopted by the trial judge was not lenient, but having considered the facts of the case and the modus operandi of the applicant, it was not manifestly excessive.", "zh-HK": "本案涉及10多本護照，如該批護照全數落入犯罪份子手上，對社會及香港特區護照的完整及可信賴性必會造成極大的負面影響。就第一項控罪，原審法官採納的四年半的量刑基準並非輕判，但以案件的背景及申請人的犯案手法而言，亦並非明顯過重。" } }, { "doc_id": 13, "seg_id": 51, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 13, "seg_id": 52, "translation": { "en": "In our judgment, the total sentence of three years was appropriate and was not manifestly excessive. We accordingly do not grant the applicant leave to appeal against sentence.", "zh-HK": "本庭亦認為最終的三年總判刑是合適的，而非明顯過重，因此本庭不批准申請人就判刑上訴。" } }, { "doc_id": 13, "seg_id": 53, "translation": { "en": "Ms. Peggy Leung, Senior Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官梁寶琦代表。" } }, { "doc_id": 13, "seg_id": 54, "translation": { "en": "Mr. David Ma, instructed by Messrs. Sidney Lee & Co., assigned by the Legal Aid Department, for the Applicant.", "zh-HK": "申請人：由法律援助署委派李志恆律師事務所轉聘大律師馬維騉代表。" } }, { "doc_id": 14, "seg_id": 1, "translation": { "en": "Hon Barnes J (giving the judgment of the Court):", "zh-HK": "原訟法庭法官張慧玲頒發上訴法庭判案書 ：" } }, { "doc_id": 14, "seg_id": 2, "translation": { "en": "The applicant was charged with two counts of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210 Laws of Hong Kong, to which he pleaded guilty before District Judge Longley. On 26 January 2011 the learned judge sentenced him to 24 months’ probation for the two charges. Subsequently, in a report dated 6 January 2012, the probation officer complained that the applicant had breached the probation order and asked the court to discharge the order. On 10 January 2012, the applicant appeared before District Judge Stanley Chan and agreed with the contents of the probation report. Thereupon, the learned judge considered the sentence afresh and in the end sentenced the applicant to 12 months’ imprisonment for each of the two charges, which were to be served concurrently, making a total term of 12 months’ imprisonment. The applicant applies for leave to appeal the sentence.", "zh-HK": "申請人被控兩項「入屋犯法」罪，違反香港法例第210 章《盜竊罪條例》第11(1)(b) 及 (4) 條。申請人在區域法院法官龍‍禮席前承認兩項控罪。龍‍禮法官在2011 年1 月26 日就該兩項控罪判處申請人接受感化24 個月。其後，感化官在2012 年1 月6 日的報告中指申請人違反感化令，要求法庭撤銷感化令。在2012 年1 月10 日，申請人在陳‍廣‍池法官席前同意感化報告的內容。陳‍法官重新判刑，就兩項控罪，分別判處申請人12 個月監禁，同期執行，總刑期12 個月。申請人不服判刑，提出上訴許可申請。" } }, { "doc_id": 14, "seg_id": 3, "translation": { "en": "Agreed facts", "zh-HK": "承認案情" } }, { "doc_id": 14, "seg_id": 4, "translation": { "en": "The facts were that on two consecutive days, namely 14 and 15 May 2010, the applicant sneaked into the same flat. On the first occasion, no one was in the flat, and the applicant stole $6,000 cash and a mobile phone worth $2,800. On the second occasion, when he tried to steal again, he was discovered by the occupant of the flat. He fled without stealing anything.", "zh-HK": "案情顯示，申請人在2010 年5 月14 日及15 日接連兩日，潛入同一涉案單位；首次單位內無人，申請人成功偷竊現金 $6,000及一部價值 $2,800的流動電話。翌日，他重施故技時，被單位戶主發覺，未能成功偷竊便落荒而逃。" } }, { "doc_id": 14, "seg_id": 5, "translation": { "en": "The applicant was arrested on the very night of 15 May. He admitted under caution that he stole approximately $2,000 from the flat on 14 May 2010 and that, having spent all the stolen money, on 15 May he tried to sneak into the flat again to steal.", "zh-HK": "申請人在5 月15 日當晚被捕。警誡下，申請人承認在2010 年5 月14 日在涉案單位偷取了約 $2,000，花光了錢後便在5 月15 日再嘗試進入涉案單位偷竊。" } }, { "doc_id": 14, "seg_id": 6, "translation": { "en": "Applicant’s background", "zh-HK": "申請人背景" } }, { "doc_id": 14, "seg_id": 7, "translation": { "en": "The applicant is now 21 years old. He has two conviction records for two counts of theft, for which he had been put on probation for 12 months. However, he breached the probation order and was accordingly sentenced to two weeks’ imprisonment instead.", "zh-HK": "申請人現年21 歲。先前有兩項偷竊刑事紀錄，被判處接受感化12 個月，但申請人違反感化令，被法庭改判兩個星期監禁。" } }, { "doc_id": 14, "seg_id": 8, "translation": { "en": "The information shows that the applicant suffers from moderate mental retardation and does not have a proper job. In addition to the thefts which came before the courts, he had stolen the belongings of his fellow students and of a voluntary worker at the school where he studied. He had also stolen things from his father’s workshop. In May 2004, he was cautioned by a police superintendent after he stole a motor cycle.", "zh-HK": "資料顯示，申請人屬中度智障，沒有正當職業。除了法庭已知悉的偷竊事件外，申請人曾在他就讀的學校偷竊同學和一名義工的物品；他亦曾在父親的工場進行偷竊。在2004 年5 月，他因為偷竊一輛電單車而遭警司警誡。" } }, { "doc_id": 14, "seg_id": 9, "translation": { "en": "District Judge Longley’s reasons for sentence", "zh-HK": "龍‍禮法官的判刑理由" } }, { "doc_id": 14, "seg_id": 10, "translation": { "en": "Despite the applicant’s record of having breached a previous probation order, District Judge Longley considered the applicant’s background and the fact that a social worker was able to find a place for the applicant at a sheltered workshop cum hostel, and, in light of that, sentenced him to probation for 24 months. The probation was made subject to conditions, including that the applicant had to be of good behaviour and that he had to keep in touch with the probation officer.", "zh-HK": "雖然申請人有違反感化令的前科，龍‍禮法官在考慮了申請人的背景後，仍然在社工能夠幫助申請人找到庇護工場宿舍後，判令申請人接受感化24 個月。感化條件包括申請人須行為良好及須與感化官保持聯絡等等。" } }, { "doc_id": 14, "seg_id": 11, "translation": { "en": "Breach of the probation order", "zh-HK": "違反感化令的內容" } }, { "doc_id": 14, "seg_id": 12, "translation": { "en": "In the report dated 6 January 2012 the probation officer stated that there were occasions on which the applicant did not stay at home during holidays but instead lingered at video game centres, and that he had repeatedly stolen things and attacked inmates and staff members in the sheltered workshop. Besides, he damaged various articles in the hostel during his occasional temper outbursts. By reason of his unsatisfactory behaviour, he was expelled from the sheltered workshop cum hostel on 15 October 2011.", "zh-HK": "根據感化官在2012 年1 月6 日的報告中指出，申請人在假日曾沒有按照指示留宿家中，在遊戲機中心留連。他亦曾多次在庇護工場內偷竊和襲擊院友和工作人員。他亦曾發脾氣、破壞宿舍物品。由於申請人的行為未如理想，在2011 年10 月15 日他被逐出庇護工場。" } }, { "doc_id": 14, "seg_id": 13, "translation": { "en": "After the applicant ceased to work and reside at the sheltered workshop cum hostel, he spent all his time at video game centres. The applicant strongly denied that he had engaged in any illegal activity, but his parents were very concerned about him. His father asked him to work at an air-conditioner repair company but he refused. The probation officer commented that the applicant had performed poorly during the probation period, that he had failed to comply with the probation order, and that he had disregarded the probation officer’s advice and guidance. The officer concluded that the probation order was of no use whatsoever to the applicant and therefore recommended that the order be discharged.", "zh-HK": "申請人不再在庇護工場宿舍工作和住宿後，終日在遊戲機中心留連。雖然申請人極力否認他曾從事任何不法工作，申請人的父母對他的情況非常關注。申請人的父親曾要求他到冷氣維修公司工作，但遭申請人拒絕。感化官認為申請人在感化期間表現差劣、不遵照感化命令，亦不理會感化官的教誨。感化官認為感化令對申請人毫無作用，要求撤銷感化令。" } }, { "doc_id": 14, "seg_id": 14, "translation": { "en": "District Judge Chan’s reasons for sentence", "zh-HK": "陳‍法官的判刑理由" } }, { "doc_id": 14, "seg_id": 15, "translation": { "en": "Having considered the applicant’s records, age and mental ability, District Judge Chan took the view that the detention centre, the training centre and the rehabilitation centre were all unsuitable for the applicant. In light of the special circumstances of the applicant, the learned judge considered it necessary to take “an exceptional approach”. He adopted 18 months’ imprisonment as the starting point for each charge and reduced it to 12 months on account of the applicant’s guilty plea. The sentences were ordered to run concurrently. The learned judge exhorted the applicant to keep his promise to work at his father’s place, and also hoped that the applicant’s parents could positively put the applicant under their supervision.", "zh-HK": "陳‍法官在考慮了申請人的前科、年齡和智商後，認為勞教中心、教導所和更生中心非適合申請人。陳‍法官認為基於申請人的特殊情況，他須作出一個「特殊的處理方法」，就每項控罪他以18 個月為量刑起點，因為申請人認罪而減為12 個月，同期執行。陳‍法官亦強調申請人須依從承諾，到其父親的地方工作。陳‍法官亦希望申請人父母能真正監管申請人。" } }, { "doc_id": 14, "seg_id": 16, "translation": { "en": "Application for leave to appeal", "zh-HK": "申請上訴許可" } }, { "doc_id": 14, "seg_id": 17, "translation": { "en": "The applicant was initially unrepresented. On 29 March 2012, at the hearing of the applicant’s application for leave to appeal against sentence, Cheung JA adjourned the case and allowed the applicant to be represented by Counsel. He also ordered that a clinical psychologist’s report and a psychiatrist’s report be prepared and submitted to the court.", "zh-HK": "申請人原本沒有律師代表，在2012 年3 月29 日，在上訴庭法官張澤祐席前申請判刑上訴許可時，張‍法官將案件押後，批准申請人由律師代表出庭。另外，張‍法官下令索取申請人的臨床心理和精神科報告。" } }, { "doc_id": 14, "seg_id": 18, "translation": { "en": "Clinical psychologist’s report and psychiatrist’s report", "zh-HK": "臨床心理學家及精神科醫生報告" } }, { "doc_id": 14, "seg_id": 19, "translation": { "en": "The clinical psychologist opined that the applicant possessed adequate cognitive ability to understand that stealing was unlawful, and that the applicant’s stealing activities were motivated by his desire to obtain monetary gains. The psychiatrist did not consider that the applicant was suffering from any psychiatric disorder.", "zh-HK": "臨床心理學家認為申請人有足夠的認知能力，明白盜竊是非法的，申請人盜竊的動機是希望能獲金錢利益。精神科醫生認為申請人沒有任何精神病況。" } }, { "doc_id": 14, "seg_id": 20, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 14, "seg_id": 21, "translation": { "en": "Mr. Bernard Yuen, Counsel for the applicant, has put forward two main grounds of appeal:", "zh-HK": "申請人代表袁‍國‍華大律師基本上提出兩個上訴理由：" } }, { "doc_id": 14, "seg_id": 22, "translation": { "en": "Before he considered the sentence afresh, District Judge Chan did not consider discharging or decide to discharge or in fact discharge the 24-month probation order imposed on the applicant by District Judge Longley. Therefore, in respect of the two charges, the applicant is subjected to a probation order and a custodial sentence of imprisonment at the same time, which is wrong both in principle and as a matter of procedure.", "zh-HK": "陳‍法官在重新判刑前並無考慮、決定或實行撤銷由龍‍禮法官判處申請人的24 個月感化令，因此就該兩項控罪，申請人同時有感化令及被判處監禁，原則上及程序上均犯錯。" } }, { "doc_id": 14, "seg_id": 23, "translation": { "en": "In imposing a custodial sentence on the applicant, District Judge Chan did not have sufficient regard to the applicant’s special circumstances (particularly the fact that he was suffering from moderate mental retardation), and the custodial sentence was not passed after properly balancing the need to assist the applicant in his rehabilitation, the interests of justice and the interests of the general public.", "zh-HK": "陳‍法官在判處申請人入獄時，沒有充分考慮申請人的特殊情況 (尤其是申請人是中度智障的情況)，判處他入獄並不符合協助申請人改過自新、公義及社會利益的平衡考慮。" } }, { "doc_id": 14, "seg_id": 24, "translation": { "en": "In relation to ground (1), Mr. Yuen relies on section 3A of the Probation of Offenders Ordinance, Cap. 298 Laws of Hong Kong, which provides that an offender in whose case a probation order is made shall not be sentenced further, and submits that District Judge Chan therefore erred in passing the custodial sentence without discharging the probation order and that the probation order should have been discharged.", "zh-HK": "就上訴理由 (1)，袁‍大律師依賴香港法例第298 章《罪犯感化條例》第 3A條，指出在所犯案件中被判令接受感化的罪犯，不得被進一步判處刑罰。因此陳‍法官在沒有撤銷感化令的情況下，判處申請人監禁是錯誤的，該感化令應被推翻。" } }, { "doc_id": 14, "seg_id": 25, "translation": { "en": "As for ground (2), Mr. Yuen cites paragraph 5-301 of Archbold, which states that, even for a serious offence, probation may be considered where the defendant suffers from a psychiatric condition, because in such a situation the court must consider and strike a balance between his duty to the public on the one hand and, on the other hand, the order which can most properly assist the defendant in the given circumstances.", "zh-HK": "就上訴理由 (2)，袁‍大律師引用權威著作Archbold第5-301 段，引述作者指當一名被告人有精神病患時，即使罪行嚴重，仍然可以考慮判以感化，因為在此情況下，法庭一方面要考慮對社會人士的職責，另一方面要考慮在有關情況下，最能夠妥善協助被告人的判令是甚麼，以平衡兩者。" } }, { "doc_id": 14, "seg_id": 26, "translation": { "en": "Mr. Yuen submits that, although the psychiatrist’s report states that the applicant does not display any sign of a psychiatric disorder, the above mentioned principle, namely the paramount consideration is to assist the defendant in his rehabilitation and integration into society rather than to punish him, should be equally applicable to a mentally retarded person. Mr. Yuen asks this Court to reverse or set aside the decision of District Judge Chan.", "zh-HK": "袁‍大律師指出，雖然精神科醫生報告指申請人並無任何精神病的跡象，但考慮了上述原則：即以協助申請人改過自新和融入社會為前提，而不是以懲罰申請人為重點，該原則應該同樣適用於一名有智障情況的人身上。袁‍大律師要求本庭推翻或撤銷陳‍法官的判決。" } }, { "doc_id": 14, "seg_id": 27, "translation": { "en": "Mr. Yuen also submits that the applicant started serving the custodial sentence on 10 January 2012 and has therefore been serving almost half a year of the term of sentence. Mr. Yuen urges this Court to set aside the District Judge’s decision so that the applicant can be released forthwith.", "zh-HK": "袁‍大律師亦指，申請人自從2012 年1 月10 日已經開始服刑，實質上已服了近半年的刑期，故懇請法庭撤銷陳‍法官的判令，令申請人可以即時獲釋。" } }, { "doc_id": 14, "seg_id": 28, "translation": { "en": "Respondent’s reply", "zh-HK": "答辯人的回應" } }, { "doc_id": 14, "seg_id": 29, "translation": { "en": "On behalf of the respondent, Ms. Chiu, Acting Senior Public Prosecutor, points out in reply that what District Judge Chan was dealing with at the hearing was the recommendation made by the probation officer for a discharge of the probation order against the applicant. At the outset (paragraph 1) of his Reasons for Sentence, the learned judge made it clear that the applicant had breached the probation order and that he had to consider the sentence anew. In light of the overall circumstances of the present case and taking into account the word “afresh” used by the learned judge, it is obvious that he had no intention to allow the probation order to stand. It is submitted that the applicant’s allegation that the learned judge imposed a custodial sentence on top of the probation order is untenable.", "zh-HK": "答辯人代表署理高級檢控官招‍秉‍茵回應指，陳‍法官在審訊時是處理感化官向法院提出解除申請人的感化令的要求。陳‍法官在判刑理由書的第1 段已開宗明義，指出申請人違反感化令，他須重新判刑。縱觀事件的來龍去脈，加上陳‍法官使用「重新」二字，明顯他並無保留感化令的意思。申請人指陳‍法官在感化令上另外判處監禁是沒有根據的。" } }, { "doc_id": 14, "seg_id": 30, "translation": { "en": "The respondent also relies on the relevant part of section 4(6) of the Probation of Offenders Ordinance, Cap. 298 Laws of Hong Kong (i.e. “… where the probationer is sentenced for the offence for which he was placed on probation, the probation order shall cease to have effect.”) and submits that the applicant’s probation order had ceased to have effect.", "zh-HK": "答辯人亦依賴香港法例第298 章《罪犯感化條例》第4(6) 條有關的條文 (即「…. 如受感化者因導致其被判接受感化的罪行被判處刑罰，則有關的感化令即告失效。」)，指申請人的感化令已告失效。" } }, { "doc_id": 14, "seg_id": 31, "translation": { "en": "As regards ground of appeal (2), the respondent submits that, according to the sentencing guideline laid down by the Court of Appeal, the starting point upon conviction for the offence of burglary in a residential property is imprisonment for 3 years. Where the defendant’s mental ability is lower than average and there is evidence that although he knew what he did was wrong, he could not fully appreciate how wrong it was, then that will be regarded as a mitigating factor: R v Taylor [1983] 5 Cr App R (S) 241 and R v Harvey [1984] 6 Cr App R (S) 184,186.", "zh-HK": "就上訴理由 (2)，答辯人指，根據上訴法庭訂下的判刑指引，一名人士在住宅物業內干犯入屋犯法罪，一經定罪，判刑的起點是3 年。假如一名被告人的智商較一般人為低，而有證據顯示他雖然知道自己犯錯，但不能完全理解錯誤的嚴重性，法庭是會視之為減刑的因素：R v Taylor [1983] 5 Cr App R (S) 241及R v Harvey [1984] 6 Cr App R (S) 184, 186。" } }, { "doc_id": 14, "seg_id": 32, "translation": { "en": "The respondent submits that, although the applicant is suffering from moderate mental retardation, the clinical psychologist’s report stated that the applicant knew he was doing something wrong and that the offence was merely motivated by his desire to obtain monetary gains. It is submitted that the applicant’s conduct and motive were no different from those of the defendants in the usual cases of offences involving dishonesty. Notwithstanding that, District Judge Chan treated the applicant leniently by considering sentencing options other than an immediate custodial sentence. However, as the applicant had been assessed to be unsuitable for admission to a training centre, and taking into account his special circumstances and his conviction records for similar offences, as well as the fact that he had previously been incarcerated and neither the detention centre nor the rehabilitation centre was considered suitable for him, the only viable sentencing option was an immediate custodial sentence. It is submitted that the learned judge had taken into account all the circumstances, and the starting point of 18 months that he adopted is lower than that set out in the sentencing guideline by as much as 50%.", "zh-HK": "答辯人指，本案的申請人雖屬中度智障，但根據臨床心理學家報告，申請人知道自己犯錯，而他犯案的動機祇是希望從中得到金錢上的利益。答辯人認為申請人的行為動機與一般干犯不誠實罪行的被告人無異。儘管如此，陳‍法官對申請人寬大處理，他首先考慮了即時監禁以外的判刑選擇，不過申請人較早前被評定為不適合進入教導所，另外申請人的狀況特殊和過往有同類的定罪紀錄，加上曾被判監、勞教中心和更生中心，對申請人均不適合，唯一可行的判刑選擇祇有即時監禁。陳‍法官已經考慮了所有因素，採納18 個月監禁為量刑起點，有關的量刑起點足足較判刑指引輕一半。" } }, { "doc_id": 14, "seg_id": 33, "translation": { "en": "The respondent submits that, while there are mitigating factors, the gravity of the case and the need for deterrence cannot be overlooked. The applicant broke into the same residential unit on two consecutive days to steal, and such conduct was outrageous. The respondent maintains that an immediate custodial sentence is the only appropriate sentencing option, and that the starting point and final sentence imposed by District Judge Chan are neither wrong in principle nor manifestly excessive.", "zh-HK": "答辯人指，本案存有一定減刑的因素，不過，同時亦不能忽略案件的嚴重性，須要加以阻嚇。申請人接連兩日侵入同一個住所進行盜竊，行為猖獗。答辯人認為即時監禁是唯一的合適判刑選擇。陳‍法官採納的量刑起點及最終判刑均並非原則性犯錯或明顯過重。" } }, { "doc_id": 14, "seg_id": 34, "translation": { "en": "Our views and considerations", "zh-HK": "本庭作出的考慮" } }, { "doc_id": 14, "seg_id": 35, "translation": { "en": "In respect of ground of appeal (1), we accept the respondent’s submissions. Although in passing sentence District Judge Chan did not expressly say that the probation order in question was discharged, when everything is put in context — he was dealing with an application by the probation officer to discharge the probation order and he clearly said that he had to consider the sentence “afresh” — his intention to set aside the probation order should become obvious. Even if he did err in not discharging the probation order so that it co-existed with the custodial sentence, this Court would be in a position to rectify the mistake.", "zh-HK": "就上訴理由 (1)，本庭接納答辯一方的陳詞見解。雖然陳‍法官在判刑時並無明確指出有關的感化令已被撤銷，但縱觀上文下理，基於當時他處理的申請是感化官要求法庭撤銷感化令，而他亦明言他「重新」判刑，所以明顯他的目的是將感化令撤銷。即使陳‍法官確是犯錯，沒有正式撤銷感化令而使感化令與監禁共存，本庭可作出修正。" } }, { "doc_id": 14, "seg_id": 36, "translation": { "en": "Having said that, in order to avoid misunderstanding, the court should have made a formal order discharging the probation order. We hope that in future the courts will bear this in mind when dealing with similar applications.", "zh-HK": "誠然，法庭應正式作出撤銷感化令的判令，以避免發生誤會。本庭希望以後法官在處理同樣申請時能注意此點。" } }, { "doc_id": 14, "seg_id": 37, "translation": { "en": "Turning to ground of appeal (2), in sentencing the applicant District Judge Longley did consider his background. Even though the applicant had previously been put on probation for theft and had breached the probation order, the learned judge still gave him a chance. As the probation officer had found a place for him at a sheltered workshop cum hostel where he could work and reside, the learned judge put him on probation again. However, the applicant did not treasure this chance at all. He repeatedly violated the probation order not only by continuing to steal, but also by going on to attack inmates and staff members and damage various articles in the hostel. He was expelled from the sheltered workshop cum hostel due to his unsatisfactory performance. This being the case, the probation officer quite justifiably concluded that the probation order was of no assistance to the applicant. To continue to put the applicant on probation would not serve any useful purpose.", "zh-HK": "就上訴理由 (2)，事實上，龍‍禮法官在判刑時，已考慮了申請人的背景，即使申請人已經有因為盜竊而被判感化和曾違反感化令的前科，龍‍禮法官仍給予申請人一次機會，在感化官代申請人找到庇護工場給他工作和有宿舍供他住宿時，仍判處他接受感化。但申請人根本毫不珍惜這個機會，他不止一次違反感化令，不單繼續其盜竊行為，更加有襲擊院友、工作人員和破壞宿舍物品此等行徑。申請人亦因為其行為未如理想，而被逐出庇護工場。在此情況下，感化官認為感化令對申請人並無作用，這個看法是正確的。繼續判處申請人接受感化根本毫無作用。" } }, { "doc_id": 14, "seg_id": 38, "translation": { "en": "In light of all the circumstances pertaining to the applicant at the material time, we are unable to discern any proper sentencing approach other than imposing an immediate custodial sentence. In view of the applicant’s previous convictions and his persistent transgressions of the law notwithstanding the fact that he had been repeatedly punished, we do not think that a community service order is an appropriate option.", "zh-HK": "以申請人當時所有情況，除了即時監禁外，本庭實在看不到有其他恰當的方法處理。基於申請人的前科及屢罰屢犯的情況，本庭不認為社會服務令是一個恰當的考慮選擇。" } }, { "doc_id": 14, "seg_id": 39, "translation": { "en": "The applicant had previously been sentenced to two weeks’ imprisonment for breach of a probation order. This short-term imprisonment apparently did not have any deterrent effect on him because he continued to commit the offence of theft. District Judge Chan had taken into account the applicant’s special circumstances and reduced the usual starting point of 3 years’ imprisonment to 18 months accordingly. He also ordered that the 12-months term for each of the two charges to run concurrently. We do not consider this sentence of 12 months’ imprisonment to be wrong in principle or manifestly excessive.", "zh-HK": "申請人以往曾因違反感化令而被判處兩個星期監禁，明顯這個短期監禁對他完全沒有阻嚇作用，因為申請人繼續干犯偷竊罪行。陳‍法官已經考慮了申請人的特殊情況，因此將一般的3 年監禁量刑起點調低至18 個月的量刑起點。陳‍法官亦判令兩項控罪的12 個月監禁同期執行。本庭不認為12 個月監禁此刑期有任何原則性的錯誤或明顯過重。" } }, { "doc_id": 14, "seg_id": 40, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 14, "seg_id": 41, "translation": { "en": "For the above reasons, we dismiss the application for leave to appeal the sentence. For the sake of caution, we also formally discharge the probation order against the applicant.", "zh-HK": "基於上述理由，本庭駁回申請人就判刑的上訴許可申請。為了謹慎起見，本庭亦正式撤銷申請人的感化令。" } }, { "doc_id": 14, "seg_id": 42, "translation": { "en": "Ms. Samantha Chiu, Acting Senior Public Prosecutor of the Department of Justice, for the HKSAR", "zh-HK": "答辯人：由律政司署理高級檢控官招秉茵代表香港特別行政區" } }, { "doc_id": 14, "seg_id": 43, "translation": { "en": "Mr. Bernard Yuen, instructed by Yip & Partners on assignment by the Legal Aid Department, for the Applicant", "zh-HK": "申請人：由法律援助署委派葉偉全律師事務所轉聘袁國華大律師代表" } }, { "doc_id": 15, "seg_id": 1, "translation": { "en": "Barnes J (giving the judgment of the Court):", "zh-HK": "原訟法庭法官張慧玲宣讀上訴法庭判案書 ：" } }, { "doc_id": 15, "seg_id": 2, "translation": { "en": "The applicant pleaded guilty to one count of Attempted Robbery before Deputy District Judge Sham and was sentenced to 4 years and 4 months’ imprisonment. He applies for leave to appeal against sentence.", "zh-HK": "申請人在區域法院暫委法官沈‍小‍民席前承認一項「企圖搶劫」罪，被判監禁4 年4 個月。申請人就判刑提出上訴許可申請。" } }, { "doc_id": 15, "seg_id": 3, "translation": { "en": "The facts of the case", "zh-HK": "案情" } }, { "doc_id": 15, "seg_id": 4, "translation": { "en": "The facts of the case were that the victim was a prostitute in a ‘one-woman brothel’. At around 10:30 pm on the night of the case, the applicant pressed the doorbell of the victim’s unit. As the victim was ‘receiving a customer’, she told the applicant to come later. The applicant arrived at the unit again at 11:18 pm. He negotiated the price with the victim. Both parties agreed that $100 was to be paid as the reward for providing sex service. After they had sex, the victim asked the applicant to pay. All of a sudden, the applicant took out a length of black-coloured electric wire from his shoulder bag and attempted to tie up the hands of the victim, at the same time declaring robbery. The victim resisted. The applicant tried to tie the neck of the victim with the electric wire, and hit her on the head with a remote control device. The victim continued to resist and raised hue and cry. The applicant then fled the scene leaving behind the electric wire. The victim, who was all naked, pursued hotly from behind but the applicant made good his escape. The victim then made a report to the police.", "zh-HK": "案情顯示受害人是一名「一樓一鳳」的妓女。在案發當晚約10:30 左右，申請人按受害人單位的門鈴。因受害人當時正在「接客」，她著申請人稍後才來。申請人於11:18 再次到達單位，與受害人議價。雙方同意以$100作性交易的報酬。在完事後，受害人要求申請人付款，申請人突然間從其肩袋拿出一條黑色電線，試圖綑綁受害人雙手，並聲稱搶劫。受害人作出反抗，申請人試圖用該電線綁受害人頸部，並用一個遙控器打受害人頭部。受害人繼續反抗，並高聲呼救。申請人遂遺下電線逃離現場。全裸的受害人在後窮追，但被申請人逃脫。受害人於是報警。" } }, { "doc_id": 15, "seg_id": 5, "translation": { "en": "The police later found the applicant on the rooftop of the building where the unit was. Under caution, the applicant admitted that he tied up the hands of the victim with electric wire to rob her after having sexual intercourse with her, but the victim resisted, so he fled the scene after hitting her on the head a few times.", "zh-HK": "其後警員在單位處所大廈的天台發現申請人。申請人在警誡之下承認他在與受害人性交後，用電線綁受害人的手行劫，但受害人反抗，他打了受害人頭部數下便逃離現場。" } }, { "doc_id": 15, "seg_id": 6, "translation": { "en": "The victim of the case was injured. There were bruises on her forearm and forehead and laceration on the corner of her left eye.", "zh-HK": "受害人在案件中受傷，她的前臂及前額有瘀傷、左眼角有裂傷。" } }, { "doc_id": 15, "seg_id": 7, "translation": { "en": "Reasons for sentence", "zh-HK": "法官的判刑理由" } }, { "doc_id": 15, "seg_id": 8, "translation": { "en": "In passing sentence, Deputy District Judge took into account that this was not a case of Armed Robbery. After referring himself to the cases of Cheng Fuk Wa and Lai Kwok Fai (transliteration)----two cases involving robbing ‘one-woman brothel prostitute’ with arms---and the facts of this case, he adopted 6 years as the starting point. The Deputy District Judge went on to point out that neither defendants of the above cases had sex with the prostitutes first before robbing them. The applicant, however, had used the sexual service but not paid for it. Citing the case of Luk Hau Cheung, he was of the view that the sentence should be increased to 6 ½ years to reflect the gravity of the case. Allowing the usual 1/3 discount, the applicant was sentenced to 4 years and 4 months’ imprisonment.", "zh-HK": "法官在判刑時考慮了本案並非一宗「持械行劫」案件。他考慮了案例鄭福華及黎國輝——兩宗涉及持械行劫「一樓一鳳」的案件——及本案案情後，以6 年為量刑起點。法官繼而指上述案例的被告人均沒有先獲取性服務才行劫，而申請人則獲取了性服務而未有付款。他引用案例陸孝章(譯音)，認為應將刑期加至6½ 年來反映案情嚴重性。法官給予申請人一般的三分之一刑期扣減，判刑4 年4 個月。" } }, { "doc_id": 15, "seg_id": 9, "translation": { "en": "Ground of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 15, "seg_id": 10, "translation": { "en": "Counsel for the applicant, Mr Newman Wong, advanced only one ground of appeal. He had no objection to 6 years being adopted as the starting point in sentencing, but he argued that the Deputy District Judge had erred in principle in increasing the term of imprisonment from 6 years to 6 ½ years on the ground that the applicant had, before robbing the victim, used the sexual service she provided without making payment.", "zh-HK": "申請人代表王‍興‍偉大律師祇提出一項上訴理由。他對量刑起點是6 年無異議，但他指法官以申請人行劫前接受受害人提供的性服務而未有支付酬金為理由，將刑期由6 年提升至6½ 年，是犯了原則上的錯誤。" } }, { "doc_id": 15, "seg_id": 11, "translation": { "en": "Mr Wong argued that the applicant’s act of not paying the victim did not constitute any criminal offence in law. As the service provided by the victim in the transaction was immoral, she was not entitled to make a civil claim against the applicant in court. Although there is the offence of Making off without Payment under 18(1) of the Theft Ordinance, 18(3) provides that ‘Subsection (1) shall not apply where the supply of the goods or the doing of the service is contrary to law, or where the service done is such that payment is not legally enforceable.’ Mr Wong argued that imposing a heavier sentence on the applicant because he did not pay for the service he had received was inconsistent with public policy. Although the Deputy District Judge found that the applicant should not have availed himself to the sexual service without making payment, to increase the term of imprisonment by half a year because of $100 was proportionately excessive. Mr Wong considered that the appropriate sentence was one of 4 years.", "zh-HK": "王‍大律師指申請人沒有付酬給受害人這行為，在法律上未有構成任何刑事罪行。由於受害人提供服務屬於不道德交易，她不能在民事法庭上向申請人申索。根據《盜竊罪條例》第 18C(1)條，是有「不付款而離去」此罪行，但18C(3)條列明「凡貨品的供應或服務的提供是違法的，或提供服務所須付款是不能夠依法追討的，則第(1)款概不適用。」王‍大律師指以申請人在獲得服務後沒有支付酬金而加重刑罰是與公共政策有所違背。縱使法官認為申請人不應該在不付酬金之下使用有關性服務，為了$100酬金而將刑期提高半年，在比例上亦屬過高。王‍大律師認為恰當的刑期是4 年。" } }, { "doc_id": 15, "seg_id": 12, "translation": { "en": "Reply of the Respondent", "zh-HK": "答辯人回應" } }, { "doc_id": 15, "seg_id": 13, "translation": { "en": "Miss Chiu for the Prosecution accepted that the reason given by the Deputy District Judge for increasing the sentence was not appropriate. But she argued that in this case, the applicant posed himself as a customer, pretended to negotiate the price with the victim and exploited the vulnerability of her position to satisfy his selfish desire first before robbing her when she forgot to keep up her guard; he planned his actions and committed the offence with premeditation. The two sentence-enhancing elements, namely, acting with premeditation and exploiting the vulnerable, were present in this case, and in view of the facts of the case, she considered that adopting 6 ½ years as the starting point of sentence was not manifestly excessive.", "zh-HK": "答辯人代表招‍秉‍茵檢控官接納沈‍法官的加刑理由不當，但她指在本案而言，因為申請人訛稱為顧客，假裝與受害人議價，利用受害人工作上的弱點，先滿足自己的一己私慾，待受害人疏於防範才進行搶劫，申請人的行為是有計劃及在深思熟慮下犯案。本案有「預謀」及「剝削易受傷害人士」此兩項加刑因素和看到本案案情，她認為6½ 年的量刑起點是並非明顯過高。" } }, { "doc_id": 15, "seg_id": 14, "translation": { "en": "Miss Chiu also argued that the amount of the reward did not affect the seriousness of the case or the extent of the sentence enhancement.", "zh-HK": "招‍律師亦指酬金多少並不影響本案嚴重性或加刑幅度。" } }, { "doc_id": 15, "seg_id": 15, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 15, "seg_id": 16, "translation": { "en": "Firstly, as Deputy District Judge Sham had expressly pointed out, although the applicant was equipped with a piece of electric wire with the intent to tie up the victim, this case did not concern Armed Robbery.", "zh-HK": "首先，正如沈‍法官明確指出，雖然申請人帶備電線以圖綑綁受害人，但本案並不涉及「持械行劫」。" } }, { "doc_id": 15, "seg_id": 17, "translation": { "en": "The Court of Appeal has pointed out clearly that the work nature of sex workers makes them vulnerable targets for robbers. Thus the Courts will pass deterrent sentences to ensure that they are free from being bullied; see the case of Lai Kwok Fai.", "zh-HK": "上訴庭已清楚指出性工作者的工作性質令她會容易成為劫匪的搶劫行動目標，法庭會判處阻嚇式的刑罰，保證她們免受欺淩：黎國輝案例。" } }, { "doc_id": 15, "seg_id": 18, "translation": { "en": "The Deputy District Judge had referred to two ‘one-woman brothel’ robbery cases in which weapon was used: scissors were used in the case of Lai Kwok Fai and chopper was used in the case of Cheng Fuk Wah. The sentencing starting points were 6 ½ years and 7 years respectively.", "zh-HK": "法官考慮的兩宗「一樓一鳳」劫案均涉及使用武器：黎國輝一案被告用剪刀，而鄭福華一案被告用菜刀。量刑起點則分別為6½‍年及7‍年。" } }, { "doc_id": 15, "seg_id": 19, "translation": { "en": "In this case, the applicant tried but failed to tie up the hands and neck of the victim with electric wire. In the end, he hit her on the head with a remote control device, causing her injuries.", "zh-HK": "在本案，申請人試圖使用電線綑綁受害人雙手及頸部不果，最終用遙控器打傷受害人頭部，令她受傷。" } }, { "doc_id": 15, "seg_id": 20, "translation": { "en": "As far as the seriousness of the case is concerned, though the Court could make reference to the cases of Lai Kwok Fai and Cheng Fuk Wah, the facts of this case are in fact not on a par with those of the above-mentioned cases. The fear or potential harm that a victim threatened with scissors or chopper is exposed to is far greater than one who suffers the attempt of being tied up with a piece of electric wire and hit on the head with a remote control device by the robber. On the other hand, the applicant had tried to tie the neck of the victim with electric wire; this exposed her to the risk of sustaining grievous bodily harm.", "zh-HK": "以案情嚴重性而言，雖則法庭可參考黎國輝及鄭福華兩宗案例，但本案案情實不能與上述案例相提並論。一名受害人在剪刀或菜刀威脅下所受的驚恐及可能被傷害程度，遠遠超過被賊人試圖用電線將她綑綁及用遙控器襲擊頭部。但另一方面，由於申請人曾經試圖用電線綑綁受害人頸部，此舉是有機會令受害人身體受嚴重傷害。" } }, { "doc_id": 15, "seg_id": 21, "translation": { "en": "Citing the case of Luk Hau Cheung, Deputy District Judge Sham stated that not paying for the service rendered to him was something ‘for which a (the) defendant has not been charged or convicted’ and hence a ground for enhancing the sentence.", "zh-HK": "沈‍法官引用案例陸孝章一‍案，指申請人使用服務後未有付款是一項「未有因為該等事項而被加控罪行或者定罪」的事項，因此構成加刑理由。" } }, { "doc_id": 15, "seg_id": 22, "translation": { "en": "The applicant’s failure to pay for the sex service provided to him after using it does not constitute an offence at criminal law. The victim could not lodge a civil claim for it either. It was inappropriate for the Deputy District Judge to rely on the case of Luk Hau Cheung. Therefore, it was wrong in principle to increase the sentence by 6 months.", "zh-HK": "申請人在使用受害人的性服務後未付酬金，在刑法上並不構成罪行，受害人亦不能經民事法庭作出申索，法官引用陸孝章一‍案是不當的。以此理由加刑6 個月是有違原則。" } }, { "doc_id": 15, "seg_id": 23, "translation": { "en": "Taking into account all the facts of this case, in particular the fact that the applicant had attempted to tie the neck of the victim with electric wire, 6-year is an appropriate starting point. Allowing the applicant the usual 1/3 discount, the sentence imposed is one of 4 years. Though the difference between 4 years 4 months and 4 years is only 4 months, an error in principle made when passing sentence should nevertheless be rectified even when the difference is not great.", "zh-HK": "考慮了本案的所有案情，尤其是申請人試圖以電線綑綁受害人頸部此情節，6 年此量刑起點是恰當的。在給予申請人三分之一刑期扣減後，判刑是4 年。雖然4 年4 個月與4 年祇是相差4 個月，但當法官在判刑時犯了原則錯誤，即使刑期分別不大，亦須糾正。" } }, { "doc_id": 15, "seg_id": 24, "translation": { "en": "For the reasons given above, this Court grants leave to appeal, and treating this hearing as the appeal itself, we allow the appeal, the 4 years and 4 months’ imprisonment is set aside and substituted by 4 years’ imprisonment.", "zh-HK": "基於上述理由，本庭批准上訴許可，並視之為正式上訴。上訴得直，4 年4 個月的刑期撤銷，改判監禁4 年。" } }, { "doc_id": 15, "seg_id": 25, "translation": { "en": "Mr Newman Wong, instructed by Au & Associates, assigned by Director of Legal Aid for the Applicant", "zh-HK": "申請人：由法律援助署委託李炳剛區紹恩律師行轉聘王興偉大律師代表" } }, { "doc_id": 15, "seg_id": 26, "translation": { "en": "Miss Samantha Chiu Ping Yan, of the Department of Justice for the Respondent.", "zh-HK": "答辯人：由律政司檢控官招秉茵代表香港特別行政區" } }, { "doc_id": 16, "seg_id": 1, "translation": { "en": "Hon Yuen JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官袁家寧頒發上訴法庭判案理由書：" } }, { "doc_id": 16, "seg_id": 2, "translation": { "en": "This appeal is concerned with evidence of “uncharged acts”, namely:", "zh-HK": "本上訴有關的議題是，“不被控告的行為”的證供 (evidence of “ uncharged acts”)" } }, { "doc_id": 16, "seg_id": 3, "translation": { "en": "whether it is admissible;", "zh-HK": "是否可被法庭接納 (admissible) ，" } }, { "doc_id": 16, "seg_id": 4, "translation": { "en": "if it is, how it should be dealt with in a judge’s directions to a jury.", "zh-HK": "如果被接納的話，法官應該怎樣向陪審團作出指引。" } }, { "doc_id": 16, "seg_id": 5, "translation": { "en": "On 13 May 2010, after considering submissions from counsel for the Applicant and the Respondent respectively, we gave the Applicant leave to appeal, treated the application as the appeal proper and allowed the appeal. We quashed the conviction and ordered a re-trial. Our reasons appear below.", "zh-HK": "2010 年5月13日，本庭經考慮上訴申請人的大律師與及答辯人律師的陳詞後，給予申請人上訴許可，並視其申請為正式上訴。本庭判令上訴人上訴得直，撤銷其定罪，把案件發還重審。本庭的理由如下。" } }, { "doc_id": 16, "seg_id": 6, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 16, "seg_id": 7, "translation": { "en": "The Applicant Kwok Hing, Tony was charged with 7 offences, the 1st to 4th offences involving a girl (referred to as “Y”), and the 5th to 7th offences involving Y’s elder brother (referred to as “X”). X was born in 1987 and Y was born in 1991.", "zh-HK": "申請人郭慶被控共7項控罪, 第一至第四項涉及一名女童(以下畧稱Y)，第五至第七項涉及Y的兄長 (以下畧稱X)。X 於1987年出生, Y於1991年出生。" } }, { "doc_id": 16, "seg_id": 8, "translation": { "en": "In 1992, when X was 5 and Y was 1, the Applicant started to live together with their mother, and the two children regarded him as their stepfather. In 2000, when X was 13 and Y was 9, the Applicant and their mother separated, whereupon the two children moved away with their mother whilst continuing to have contact with the Applicant, including visiting him at his home, which was where the two children used to live.", "zh-HK": "1992 年, 即X 5歲，Y 1歲時，申請人開始與他們的母親同居，兩名兒童視申請人為後父。2000年，亦即是X13歲，Y9歲時，申請人與他們的母親分居，兩名兒童跟母親搬出但繼續與申請人有聯絡，包括前往他的住所，亦即是兩名兒童以前居住的地方 。" } }, { "doc_id": 16, "seg_id": 9, "translation": { "en": "Charges", "zh-HK": "控罪" } }, { "doc_id": 16, "seg_id": 10, "translation": { "en": "In early 2007, the Applicant was charged with 9 offences, and after trial he was acquitted of 2 of the charges, leaving 7 charges for which the jury was unable to arrive at a verdict, leading to a re-trial. The chronology of the 7 offences charged is as follows:", "zh-HK": "2007 年初，申請人被控9項控罪，審訊後就其中兩項，被裁定無罪，其餘7項控罪，陪審團不能作出裁決，所以需要重審。有關這7項控罪，時序如下:" } }, { "doc_id": 16, "seg_id": 11, "translation": { "en": "On a day unknown about a week prior to the occasion in Charge 5 between 1 April 1993 and 31 October 1994, the Applicant committed gross indecency on X (then 7 years old), the prosecution alleging that the Applicant caused X to perform oral sex on him (Charge 7);", "zh-HK": "於1993 年4月1日至1994年10月31日期間的某日，在第五項控罪發生的一個星期前，向X(當時7歲) 作出嚴重猥褻作為，控方指申請人要X替他口交 (第七項控罪);" } }, { "doc_id": 16, "seg_id": 12, "translation": { "en": "On a day unknown between 1 April 1993 and 31 October 1994, he committed buggery with X (then 7 years old) without his consent (Charge 5);", "zh-HK": "於1993 年4月1日至1994年10月31日期間的某日，與X (當時7歲) 作出未經同意的肛交 (第五項控罪);" } }, { "doc_id": 16, "seg_id": 13, "translation": { "en": "On a day unknown between 1 September 2000 and 30 September 2000, he committed buggery with X (then 13 years old) without his consent (Charge 6);", "zh-HK": "於2000 年9月1日至9月30日期間的某日，與X (當時13歲) 作出未經同意的肛交 (第六項控罪);" } }, { "doc_id": 16, "seg_id": 14, "translation": { "en": "On a day unknown between 1 September 2004 and 31 October 2004, he committed buggery with Y (then 13 years old) without her consent (Charge 1);", "zh-HK": "於2004 年9月1日至10月31日期間的某日，與Y (當時13歲) 作出未經同意的肛交 (第一項控罪);" } }, { "doc_id": 16, "seg_id": 15, "translation": { "en": "On a day unknown between 1 January 2005 and 31 January 2005, he had unlawful sexual intercourse with Y (then 14 years old) (Charge 2);", "zh-HK": "於2005年1月1日至1月31日期間的某日，與Y(當時14歲) 非法性交 (第二項控罪);" } }, { "doc_id": 16, "seg_id": 16, "translation": { "en": "On 27 January 2006, he had unlawful sexual intercourse with Y (then 14 years old) (Charge 3);", "zh-HK": "於2006年1月27日，與Y (當時14歲) 非法性交(第三項控罪);" } }, { "doc_id": 16, "seg_id": 17, "translation": { "en": "On a day unknown between 1 September 2006 and 30 September 2006, he had unlawful sexual intercourse with Y (then 15 years old) (Charge 4).", "zh-HK": "於2006年9月1日至9月30日期間的某日，與Y (當時15歲) 非法性交 (第四項控罪) 。" } }, { "doc_id": 16, "seg_id": 18, "translation": { "en": "Trial", "zh-HK": "審訊" } }, { "doc_id": 16, "seg_id": 19, "translation": { "en": "In December 2007, the Applicant was retried before Barnes J and a jury. Y being then 16 years old, the prosecution used her video recorded interview as evidence in chief, and she was cross-examined and re-examined by live television link. X, then 20 years old, gave evidence in court.", "zh-HK": "2007 年12 月，申請人在原訟法庭張慧玲法官連同陪審團席前重審。Y 當時16歲，控方以錄影紀錄作為她的主問証供，而她是籍電視直播聯繫方式，接受盤問與及補問。X當時己20歲，他在法庭上作供。" } }, { "doc_id": 16, "seg_id": 20, "translation": { "en": "At the conclusion of the trial the jury found the Applicant guilty on all charges, for which he was subsequently sentenced to a total term of imprisonment of 18 years. He applied for leave to appeal against conviction, for which this court granted legal aid, and he is now represented by counsel. He has also applied for leave to appeal against sentence out of time.", "zh-HK": "最後陪審團裁定申請人全部控罪都成立，其後他被判監禁總共18 年。他申請許可就定罪提出上訴，本庭批准他可獲法律援助，他現有大律師代表。他亦申請了許可，就刑期提出逾期上訴。" } }, { "doc_id": 16, "seg_id": 21, "translation": { "en": "Ground of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 16, "seg_id": 22, "translation": { "en": "The only ground of appeal against conviction is that when X and Y gave evidence, they alleged that apart from the 7 offences charged, the Applicant had also carried out similar acts on them on many occasions (referred to cumulatively below as “ uncharged acts”). Y alleged that the Applicant had committed buggery with her without her consent on some 20 to 40 occasions, and also had sexual intercourse with her on 10 - 20 occasions. When X was cross-examined, he also said that the Applicant had made him perform oral sex on him on more than 10 occasions, and committed buggery with him on more than 10 but less than 100 occasions. The defence referred to X’s evidence at the previous trial at which he had testified that between 1993 and 2000, the Applicant had “molested” him on about 80 occasions and, on his reckoning, on more than 100 occasions. X admitted that he had said so.", "zh-HK": "就定罪方面，上訴的唯一上訴理由，是有關X及Y作供時，都聲稱申請人除了7項控罪之外，也曾有多次向他們作出同類的行為 (以下統稱“不被控告的行為”, uncharged acts) 。Y聲稱申請人與她作出未經同意的肛交，有20至 40次，另外性交 10至 20次。而X被盤問時，亦說申請人要他替他口交超過10次，肛交亦超過10次，但應該不會超過100次。辯方亦帶出前一次審訊時，X作供時曾說1993 年至2000年間，申請人曾 “搞” 過他大約80 次，計起來甚至乎超過100 次。X承認他曾有這樣說過。" } }, { "doc_id": 16, "seg_id": 23, "translation": { "en": "Judge’s directions", "zh-HK": "原審法官的指引" } }, { "doc_id": 16, "seg_id": 24, "translation": { "en": "In respect of this evidence of “uncharged acts”, the judge gave the following directions to the jury [translated]:", "zh-HK": "就這些“不被控告的行為”的證供，原審法官向陪審團作出以下的指引 :" } }, { "doc_id": 16, "seg_id": 25, "translation": { "en": "“According to [Y], in fact buggery and sexual intercourse were not restricted to the offences with which the Applicant is now charged, she has said that there was buggery on at least 20 occasions, and even possibly 30 - 40 occasions, but at least 20 occasions. As for sexual intercourse, there were 10 - 20 occasions.", "zh-HK": "“根據 [Y] 講，其實肛交同埋性交係唔止而家被告面對嗰個控罪咖嘛，佢講咗喇，佢話如果肛交起碼二十次，甚至有可能三十至四十次添，不過起碼二十次喇。性交就十次到二十次。" } }, { "doc_id": 16, "seg_id": 26, "translation": { "en": "And [X] also said that in fact there was buggery on more than one occasion, of course you must remember you can only consider and decide whether he is guilty of the 7 charges which he is now facing, that is, those are only background material, you should not say ‘I now say that buggery occurred at age 4, and that you are guilty of the offence on that occasion’, no, not so now, now our 7 charges state clearly within specific years, specific months, and where they occurred, so you can still only consider if he is guilty of the charges which he faces, but the background is that in fact it is said that these were not the only occasions”. (Emphasis added in italics).", "zh-HK": "咁仲有就[X]都係話其實唔止一次肛交嘅，當然，你哋最緊要記住，就係你哋只係可以就係考慮決定佢而家被告面對嗰七項控罪係咪罪名成立喎，即係嗰啲係背景資料咗喎，你唔好話「我而家話你4歲嗰次有發生過肛交，而且你嗰次肛交罪名成立」唔係，而家冇，而家我哋就嗰七項控罪講得好清楚係邊一個年份、邊一個月份之內，喺邊個地點發生，所以你哋仍然只係可以考慮佢而家面對嘅控罪係咪罪名成立，不過個背景就係其實就話唔止呢幾次嘅”。(斜線後加，以示強調)" } }, { "doc_id": 16, "seg_id": 27, "translation": { "en": "Further, Y had also said that the Applicant had sexually violated her at the age of 4, and the judge gave directions to the jury as follows:", "zh-HK": "另外，Y亦有說過她四歲時被申請人性侵犯，原審法官向陪審團作出以下的指引 :" } }, { "doc_id": 16, "seg_id": 28, "translation": { "en": "“Now, you remember that [Y] said she had been sexually violated from the age of 4, she also said so in the note to the teacher, age 4, and I had told you yesterday ‘you must not say because she had mentioned age 4, you can say “look, the defendant had committed the offence at age 4\"’, don’t, because the charges now do not have such an event at age 4, but only those 4 occasions, what you must consider is that what Y has come to speak about are those 4 occasions”.", "zh-HK": "“嗱，你哋記得 [Y] 講佢由4歲開始已經係被侵犯喇嘛，佢寫畀老師張紙都係咁寫喇，4歲，咁我琴日都同你哋講過「嗱，你哋千祈唔好話因為佢講過4歲，你就話『嗱，被告4歲嗰陣時曾經干犯』」唔好，因為而家個控罪冇4歲嗰啲咁嘅事嘅，凈係嗰四次嘅啫，你哋要考慮就 [Y]嚟講就係嗰四次” 。" } }, { "doc_id": 16, "seg_id": 29, "translation": { "en": "Issue on appeal", "zh-HK": "上訴議題" } }, { "doc_id": 16, "seg_id": 30, "translation": { "en": "The issue on the appeal is whether the above directions which the trial judge gave to the jury were appropriate or adequate.", "zh-HK": "本上訴的議題是，原審法官向陪審團作出上述的指引，是否適當或足夠。" } }, { "doc_id": 16, "seg_id": 31, "translation": { "en": "We would first mention a matter of concern, which is that when an offence which a defendant faces refers to an “unknown date” within a lengthy period of time, and the location is a place where the defendant and the complainant are often likely to meet, the appearance of evidence of “uncharged acts” may lead to unfairness to the defendant, because if he cannot distinguish acts with which he is charged from those with which he is not, he would not be able to present a defence corresponding to the charge.", "zh-HK": "本庭首先要提出令人顧慮的一點，就是當一名被告人面對的控罪所陳述的日期，是一段悠長期間內的 “某日”，而地點是被告人與投訴人經常會見面的地方時，“不被控告的行為” 的證供的出現，是可能會對被告人不公，因為他未能辨別哪項行為是被控告的，而哪項行為是沒有被控告的，而作出相應的答辯。" } }, { "doc_id": 16, "seg_id": 32, "translation": { "en": "In Chim Hon Man v HKSAR (1999) 2 HKCFAR 145, the Court of Final Appeal has held that the defendant has a right to know clearly the particular act which forms the foundation of the charge. Sir Anthony Mason NPJ said (pp.161-2):", "zh-HK": "終審法院在Chim Hon Man v HKSAR (1999) 2 HKCFAR 145 一案已提出，被告人是有權清楚知道作為控罪基礎的明確行為。非常任法官梅師賢爵士Sir Anthony Mason NPJ 說 (第161 頁):" } }, { "doc_id": 16, "seg_id": 33, "translation": { "en": "At p.162, Sir Anthony applied S v The Queen (1989-1990) 168 CLR 266 which affirmed the principle that even though the case involved sexual molestation of a child over a long period of time, that does not provide an exception for the prosecution to present a specimen count. At pp.163-4, Sir Anthony suggested how an indictment may be drawn to deal with a case where offences cannot be differentiated but which occurred over a relatively short period of time.", "zh-HK": "在該案例的第162頁，梅法官援引了 S v The Queen (1989-1990) 168 CLR 266 案例所確認的原則，就是即使案件涉及向兒童作長期性侵犯，控方仍然不能以例外為理而提出樣本控罪 (specimen count) 。在該案例的第163-4頁，梅法官提出了草擬公訴書的模式，處理一段較短時間內發生多項不可辨別罪行的案件。" } }, { "doc_id": 16, "seg_id": 34, "translation": { "en": "However in our case, the 5th charge refers to an occasion when the Applicant committed buggery with X without his consent on an unknown date within the period 1 April 1993 to 31 October 1994. This is a period of some 1½ years, but at the same time, X also said that between 1993 and 2000, the Applicant had sexually violated him in similar ways on numerous occasions, for which he was not charged. When there is evidence of charged acts and uncharged acts occurring on overlapping dates, then unless there is evidence of a special fact to validate the charged act, a defendant would find it difficult to know what is the date for which act he is charged, and to present a relevant defence to the charge. This is a point to which the prosecution should pay particular attention when drafting an indictment.", "zh-HK": "但在本案中，第五項控罪指1993 年4月1日至1994年10月31日期間的某日，申請人曾有一次與X 作出未經同意的肛交。這段期間長達一年半，但與此同時，X 亦說於1993 至 2000 年內，申請人曾多次向他進行同類的性侵犯，但沒有被控告。當證據顯示，被控告的行為與及不被控告的行為，是發生在重叠的日期時，除非有特別事實的證據鑒定被控告的行為，否則一名被告人是難以知道他被控告的行為，其實是指哪一天的事，令他對控告作出有關的答辯。就這一點，控方在草擬公訴書時，是需要特別留意的。" } }, { "doc_id": 16, "seg_id": 35, "translation": { "en": "Coming back to how one should deal with evidence of “uncharged acts”, counsel for the Applicant has referred us to a number of Australian cases, i.e. Gibb v The Queen 194 CLR 106, R v Nieterink (1999) SASR and Nicholas Kostaras [2002] SASC 326, among which Nieterink contains the most thorough and comprehensive discussions.", "zh-HK": "就如何處理 “ 不被控告的行為” 的證供，代表申請人的大律師向本庭援引了幾宗來自澳洲的案例，即Gibb v The Queen 194 CLR 106, R v Nieterink (1999) SASR 56 與及 Nicholas Kostaras [2002] SASC 326, 其中以Nieterink有最詳細及全面性的討論。" } }, { "doc_id": 16, "seg_id": 36, "translation": { "en": "Principles of law", "zh-HK": "法律原則" } }, { "doc_id": 16, "seg_id": 37, "translation": { "en": "In our view, the principles of law on evidence of “uncharged acts” derived from the above Australian cases and other English cases are as follows:", "zh-HK": "歸納上述案例與及其他英國案例的討論後，本庭認為有關“ 不被控告的行為” 的證供，法律原則如下:" } }, { "doc_id": 16, "seg_id": 38, "translation": { "en": "The issue of whether evidence of “uncharged acts” is admissible or not must be decided on the individual circumstances of each case, and the court is not bound to refuse to admit such evidence by reason of its nature alone (R v M & Ors [2000] 1 WLR 421, 426-7. Citing R v Pettman (unrep) 2 May 1985, C.A. R v M & Ors was followed in HKSAR v Chan Pui Mun CACC 514/2006 unrep 16 July 2008).", "zh-HK": "“不被控告的行為” 的證供是否可被法庭接納 (admissible evidence), 需視乎個别案件的情況而定，法庭並不需要因為其本質而必定拒絕接納該類證據 (R v M & Ors [2000] 1 WLR 421, 426-7, 援引R v Pettman (unrep) 2 May 1985, C.A. 。HKSAR v Chan Pui Mun CACC 514/2006, unrep. 16 July 2008亦有援引R v M & Ors) 。" } }, { "doc_id": 16, "seg_id": 39, "translation": { "en": "Even though such evidence is not used in a particular case as identification evidence of the defendant, or as similar fact evidence to prove that the defendant had committed the offence charged, or is deployed by the defendant to challenge the credibility of the complainant, the court may still admit evidence of “uncharged acts” in circumstances including the following:", "zh-HK": "在個别案件中，雖然該類證供並不是用來識别被告人的身份(identification evidence) ，或並不是以 “類似事實證據” (similar fact evidence) 用來證明被告人干犯了被控告的控罪, 或並不是由辯方提出用來挑戰投訴人的可信性，但法庭仍然可以接納 “不被控告的行為” 的證供，情況包括:" } }, { "doc_id": 16, "seg_id": 40, "translation": { "en": "to prove the setting and context in which the offence occurred, or", "zh-HK": "用來顯示控罪發生的環境 (setting) 及全盤局面(context) ，或" } }, { "doc_id": 16, "seg_id": 41, "translation": { "en": "to explain the defendant’s confidence in repeating the offence, or", "zh-HK": "用來解釋被告人重覆行動的信心，或" } }, { "doc_id": 16, "seg_id": 42, "translation": { "en": "to explain unusual acts on the part of the complainant (such as the lack of surprise or fear, or the lack of complaint, or acts of acquiescence), or", "zh-HK": "用來解釋投訴人不尋常的行為 (例如沒有覺得驚慌，或沒有作出投訴，或順從的行為)，或" } }, { "doc_id": 16, "seg_id": 43, "translation": { "en": "to explain why the complainant is unable to recall the specific date and details of the offence charged.", "zh-HK": "用來解釋投訴人為何不能清晰記起控罪的正確日期及詳情。" } }, { "doc_id": 16, "seg_id": 44, "translation": { "en": "In summary, the court may admit evidence of “uncharged acts” if its refusal to do so would result in the jury having an incomplete or incomprehensible account of events.", "zh-HK": "簡單而言，如果法庭不接納這些證供的話，是會領到陪審團不能獲得一個完整及能夠明白的陳述時，則法庭是可以接納 “不被控告的行為” 的證供的。" } }, { "doc_id": 16, "seg_id": 45, "translation": { "en": "Of course the court should refuse to admit evidence of “uncharged acts” if it considers that the prejudicial effect on the defendant outweighs its probative force.", "zh-HK": "當然，如果法庭認為這些證供對被告人的不利超越證供的舉證力量，法官是應該拒絕接納這些“不被控告的行為” 的證供的。" } }, { "doc_id": 16, "seg_id": 46, "translation": { "en": "However if the court admits evidence of “uncharged acts”, the judge should be alert to two points when directing the jury on such evidence: (a) the standard of proof and (b) the use to which such evidence may be put.", "zh-HK": "但是如果法庭接納了“不被控告的行為” 的證供，法官向陪審團就這些證供作出指引時，需特別留意兩點: (a) 舉證的準則(standard of proof) 與及 (b) 這些證供的用途 (use) 。" } }, { "doc_id": 16, "seg_id": 47, "translation": { "en": "(a) We consider that generally the standard of proof for evidence of “uncharged acts” should be beyond reasonable doubt.", "zh-HK": "(a) “不被控告的行為” 的證供的舉證準則，本庭認為一般來說，應該達到無合理疑點的準則。" } }, { "doc_id": 16, "seg_id": 48, "translation": { "en": "(b) The use to which such evidence may be put may include explaining the nature of the relationship between the defendant and the complainant as well as the matters set out in point (2), but the judge must specifically remind the jury that they may not infer from such evidence that the defendant had committed similar offences, or that he is the sort of person with a propensity to commit the offence.", "zh-HK": "(b) “不被控告的行為” 的證供的用途，可包括用來解釋被告人與投訴人關係的性質 (nature of the relationship) ， 與及以上第 (2) 點所述的事情，但法官應該特地提醒陪審團，他們不可因為這些證供，而推斷被告人干犯了同類的罪行，或他是有干犯控罪的傾向的人 (propensity) 。" } }, { "doc_id": 16, "seg_id": 49, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 16, "seg_id": 50, "translation": { "en": "In the present case, as far as the standard of proof was concerned, the judge did not tell the jury that they must not consider such evidence unless they were sure that the “uncharged acts” had in fact occurred.", "zh-HK": "在本案中，就舉證準則一點，原審法官沒有告訴陪審團他們先需肯定“不被控告的行為” 確有發生，才可把這些證供考慮在內。" } }, { "doc_id": 16, "seg_id": 51, "translation": { "en": "Further, in directing the jury, the judge said only that the evidence of “uncharged acts” was “background” or “background material”. Although the word “background” has been used in previous cases to describe this type of evidence (Pettman), we agree with the court in Nieterink that the use of this word is debatable. Words such as “background” and “background material” are ambiguous and may give the jury the impression that such evidence was uncontroversial (Nieterink paras. 90-91), or may give the jury the impression that the defendant had a propensity to commit the offence (Kostaras para. 53). On top of that, the judge’s direction to the jury that the 7 charges the defendant now faced referred to specific dates and places may have given the jury the impression that the “uncharged acts” lacked only specific dates and places.", "zh-HK": "另外，原審法官向陪審團作出指引時，只是說 “不被控告的行為” 的證供是 “背景” 及 “背景資料” 。雖然曾有案例以這詞語(“background”) 來描述這些證據 (Pettman)，但本庭認同Nieterink 案例中法庭所說，利用這詞語作為指引是值得商榷的。“背景” 及 “資料”這些詞語用意含糊，可能給陪審團的印象，是這些證供不具爭議性 (Nieterink paragraphs 90-91) ，亦可能給陪審團的印象，是被告人有傾向干犯控罪 (Kostaras paragraph 53) 。加上原審法官向陪審團作出指引時說，被告人面對的7項控罪是有明確的日期與及地點，這可能給陪審團的印象，是“不被控告的行為” 只是欠缺了明確的日期與及地點。" } }, { "doc_id": 16, "seg_id": 52, "translation": { "en": "For the reasons set out above, we took the view that the judge had failed to direct the jury on the standard of proof when considering the evidence of “uncharged acts”. The judge had also failed to give adequate directions to the jury on the evidence of “uncharged acts”, resulting in unfairness to the Applicant.", "zh-HK": "基於以上理由，本庭認為原審法官遺漏指引陪審團，他們考慮 “不被控告的行為” 的證供時，應用的舉證準則。就“不被控告的行為” 的證供，法官亦沒有給予陪審團足夠的指引，對申請人造成不公。" } }, { "doc_id": 16, "seg_id": 53, "translation": { "en": "Order", "zh-HK": "命令" } }, { "doc_id": 16, "seg_id": 54, "translation": { "en": "Accordingly we gave the Applicant leave to appeal, treated the application as the appeal proper, allowed the appeal and quashed the conviction.", "zh-HK": "為此，本庭給予申請人上訴許可，並視申請為正式上訴，頒令上訴得直，撤銷定罪。" } }, { "doc_id": 16, "seg_id": 55, "translation": { "en": "The Respondent having asked for a re-trial and this not having been opposed by counsel for the Applicant, we consider that this being a serious case, there should be an order for re-trial. It is not necessary for us to deal with the application for leave to appeal against sentence.", "zh-HK": "答辯人要求重審，上訴人的大律師沒有反對，鑑於本案的嚴重性，本庭認為應該把案件發還重審。本庭不需要處理有關刑期的上訴許可申請。" } }, { "doc_id": 16, "seg_id": 56, "translation": { "en": "Mr Paul Wu, instructed by Peter K.H. Wong & Co, assigned by the Director of Legal Aid, for the Applicant", "zh-HK": "申請人: 由法律援助署委派王吉顯律師行轉聘大律師吳建五代表" } }, { "doc_id": 16, "seg_id": 57, "translation": { "en": "Mr Edmond Lee, SPP of Department of Justice, for the Respondent", "zh-HK": "答辯人: 由律政司高級檢控官李俊文代表" } }, { "doc_id": 17, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案書：" } }, { "doc_id": 17, "seg_id": 2, "translation": { "en": "The applicant was indicted on seven counts of sexual offences. After trial before D. Pang J sitting with a jury, he was found guilty of five of the counts and was sentenced to eight years’ imprisonment. He applies for leave to appeal against both conviction and sentence.", "zh-HK": "申請人被控7項控罪。案件經高等法院原訟法庭法官彭偉昌及陪審團審理後，申請人被裁定其中5項罪名成立。申請人被判8年監禁。申請人就定罪及刑期提出上訴許可申請。" } }, { "doc_id": 17, "seg_id": 3, "translation": { "en": "The Five Convictions", "zh-HK": "五項定罪" } }, { "doc_id": 17, "seg_id": 4, "translation": { "en": "Four of the five counts of which the applicant was found guilty concerned a girl X, who was under the age of 16. Three of these counts, namely the 1st,, the 3rd and the 5th counts, alleged that the applicant had sexual intercourse with X, a girl under the age of 16 years, contrary to sections 124(1) and 153P(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong (“the Ordinance”). Another count which involved X, namely the 6th count, alleged that the applicant engaged in indecent conduct towards a child under the age of 16 years, contrary to sections 146(1) and 153P(1) of the Ordinance. The remainder count, namely the 7th count, was concerned with another girl under the age of 16, Y, and alleged that the applicant indecently assaulted Y, contrary to sections 122(1) and 153P(1) of the Ordinance.", "zh-HK": "上述5項定罪的其中4項是涉及一名年齡16歲以下的女童X。這些控罪的其中3項(即控罪1、3、5)指申請人與年齡在16歲以下的女童X性交，違反《刑事罪行條例》(香港法例第200章) (《條例》)第124(1) 及153P(1) 條。涉及X的另一項控罪(即控罪6)是指申請人向年齡在16歲以下的兒童作出猥褻行為，違反《條例》第146(1) 及153P(1) 條。餘下的一項定罪(即控罪 7)是涉及另外一名年齡在16歲以下的女童Y。控罪指申請人猥褻侵犯Y，違反《條例》第122(1) 及153P(1) 條。" } }, { "doc_id": 17, "seg_id": 5, "translation": { "en": "Particulars of the offences", "zh-HK": "控罪詳情" } }, { "doc_id": 17, "seg_id": 6, "translation": { "en": "The particulars of offence of the 1st, the 3rd and the 5th counts were as follows:", "zh-HK": "控罪1、3、5的控罪詳情如下：" } }, { "doc_id": 17, "seg_id": 7, "translation": { "en": "1)The 1st count: The applicant, on a day unknown between the 1st day of September, 2005 and the 31st day of March, 2007, being a Hong Kong permanent resident, at Fo Xin Hostel, No. 8 Xiang Shan Xin Street, Xiangshan Town, Menghai County, Xishuangbanna, Yunnan Province, China, had unlawful sexual intercourse with X.", "zh-HK": "1)控罪1：申請人於2005年9月1日至2007年3月31日期間的某日，身為香港永久性居民，在中國雲南省西雙版納州勐海縣象山鎮象山新街8號「佛馨旅舍」，與X非法性交。" } }, { "doc_id": 17, "seg_id": 8, "translation": { "en": "2)The 3rd count: The applicant, on a day unknown between 1st day of September 2006 and 31st day of July, 2007, being a Hong Kong permanent resident, at Bulangshan Nong Mao Market Reception House, Menghai County, Xishuangbanna, Yunnan Province, China, had unlawful sexual intercourse with X.", "zh-HK": "2)控罪3：申請人於2006年9月1日至2007年7月31日期間的某日，身為香港永久性居民，在中國雲南省西雙版納州勐海縣「布朗山農貿市場招待所」，與X非法性交。" } }, { "doc_id": 17, "seg_id": 9, "translation": { "en": "3)The 5th count: The applicant, on a day unknown between the 1st day of August, 2006 and the 31st day of July, 2007, being a Hong Kong permanent resident, at Ren Ai Children Home, No. 20 Jinlong Road, Xiangshan Town, Menghai County, Xishuangbanna, Yunnan Province, China, had unlawful sexual intercourse with X, a girl under the age of 16 years.", "zh-HK": "3)控罪5：申請人於2006年8月1日至2007年7月31日期間的某日，身為香港永久性居民，在中國雲南省西雙版納州勐海縣象山鎮景龍路20號「仁愛兒童之家」，與年齡在16歲以下的女童X非法性交。" } }, { "doc_id": 17, "seg_id": 10, "translation": { "en": "The particulars of offence of the 6th count were that the applicant, on a day unknown between the 1st day of January, 2006 and the 31st day of August, 2007, being a Hong Kong permanent resident, at Ren Ai Children Home, No. 20 Jinlong Road, Xiangshan Town, Menghai County, Xishuangbanna, Yunnan Province, China, committed an act of gross indecency towards X.", "zh-HK": "控罪6的控罪詳情是申請人於2006年1月1日至2007年8月31日期間的某日，身為香港永久性居民，在中國雲南省西雙版納州勐海縣象山鎮景龍路20號「仁愛兒童之家」，向X作出嚴重猥褻行為。" } }, { "doc_id": 17, "seg_id": 11, "translation": { "en": "The particulars of offence of the 7th count were that the applicant, on a day unknown between the 1st day of August, 2005 and the 31st of July, 2007, being a Hong Kong permanent resident, at Ren Ai Children Home, No. 20 Jinlong Road, Xiangshan Town, Menghai County, Xishuangbanna, Yunnan Province, China, indecently assaulted Y.", "zh-HK": "控罪7的控罪詳情是申請人於2005年8月1日至2007年7月31日期間的某日，身為香港永久性居民，在中國雲南省西雙版納州勐海縣象山鎮景龍路20號「仁愛兒童之家」，猥褻侵犯Y。" } }, { "doc_id": 17, "seg_id": 12, "translation": { "en": "The jury unanimously found the applicant guilty of the 1st, the 3rd, the 6th and the 7th counts. In respect of the 5th count, the jury found him guilty by a majority verdict, which was 5 to 2.", "zh-HK": "除控罪5是陪審團以5比2裁定申請人有罪外，陪審團就控罪1、3、6及7均一致裁定申請人有罪。" } }, { "doc_id": 17, "seg_id": 13, "translation": { "en": "Sentence", "zh-HK": "刑期" } }, { "doc_id": 17, "seg_id": 14, "translation": { "en": "For the 1st, the 3rd and the 5th counts, D Pang J imposed a sentence of four years’ imprisonment; for the 6th count, one year and six months’ imprisonment and for the 7th count, two years’ imprisonment. One year of the terms of each count was to be served consecutively to the terms of other counts, making a total sentence of eight years’ imprisonment.", "zh-HK": "就控罪1、3及5，彭法官將刑期定為4年監禁，控罪 6定為1年6個月監禁，控罪7定為2年監禁，每項控罪的刑期的其中1年與其他控罪的刑期分期執行，總刑期為8年。" } }, { "doc_id": 17, "seg_id": 15, "translation": { "en": "Persons involved in the case", "zh-HK": "涉案人物" } }, { "doc_id": 17, "seg_id": 16, "translation": { "en": "The applicant was a permanent resident of Hong Kong. He set up the Ren Ai Children Home (“the Centre”) in Xishuanghana, Yunnan, on the Mainland, to take care of orphans and children who needed assistance. The applicant had the right to decide who could reside in the Centre and who could receive financial assistance, including assistance for enabling the recipient to receive education. Twenty odd children were taken care of and provided for by the Centre. The applicant visited the Centre about three times a year, and stayed there for one to two weeks each time. When he stayed there he occupied a room on the 2nd floor of the Centre.", "zh-HK": "申請人是一名香港永久居民。他在內地雲南西雙版納象山鎮設立一間「仁愛兒童之家」(「該中心」)，照顧一些孤兒或需要協助的兒童。申請人有權決定誰可以入住該中心或接受資助，包括接受教育的資助。該中心撫養大約二十多名兒童。申請人每年前往該中心約三次，每次停留約一至兩星期，期間申請人居住在該中心二樓的一間房間。" } }, { "doc_id": 17, "seg_id": 17, "translation": { "en": "X was a child inmate of the Centre. She was born on 1 April 1994. Y was born on 20 April 1992. X was molested by the applicant at a time between 1 September 2005 and 31 August 2007 when X was 11 to 13 years old. The incidents took place between the first term of X’s primary 5 school year and the second term of her primary 6 school year.", "zh-HK": "X是該中心的院童。她的出生日期是1994年4月1日。Y的出生日期是1992年4月20日。X被申請人侵犯的時段是2005年9月1日至2007年8月31日之間。當時X是11至13歲之間。事件發生於當X就讀小學五年級的上學期至小學六年級下學期之間。" } }, { "doc_id": 17, "seg_id": 18, "translation": { "en": "Y was also a child inmate of the Centre. She was molested at a time between 1 August 2005 and 31 July 2007. The facts alleged by the prosecution were that the molestation took place during the second term of her primary 6 school year when she was 15 years old.", "zh-HK": "Y亦是該中心的院童。她被侵犯的時間是發生於2005年8月1日至2007年7月31日。控方依賴的事實是她被侵犯的時候是就讀小學六年級下學期，年齡是15歲。" } }, { "doc_id": 17, "seg_id": 19, "translation": { "en": "We adopt the summary of the prosecution case and the defence case as presented by Ms. Virginia Lau, Senior Public Prosecutor, representing the respondent, to which we supplement:", "zh-HK": "本庭採用代表答辯人的高級檢控官劉少儀所簡述的控辯雙方案情及加以補充：" } }, { "doc_id": 17, "seg_id": 20, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 17, "seg_id": 21, "translation": { "en": "1st count", "zh-HK": "控罪1" } }, { "doc_id": 17, "seg_id": 22, "translation": { "en": "1)X (PW2) was video-interviewed by the police on 7 April 2009. At that time she was studying in junior [secondary] 2. The account she gave was that because she was a child of a poor family, she was sent by the government to the Centre when she was in primary 3. Later, when she was in primary 5, the applicant began to provide her with bank cards, mobile telephones, MP3s and pocket money. Gradually she became used to it and accepted gifts and money without thinking about what consequences that would lead to.", "zh-HK": "1)X(PW2)在2009年4月7日與警方進行錄影會面。她當時讀初二。她說由於家貧，在小學三年級時被政府送去該中心，後來在五年級時，申請人開始將銀行卡、手機、MP3同零用錢等等提供給她。慢慢她便習慣了，從來都不問後果就收下禮物和金錢。" } }, { "doc_id": 17, "seg_id": 23, "translation": { "en": "2)One day at noon during the second term of X’s primary 5 school year, she went to the Centre. She did not see the applicant. Then she telephoned him to ask him to come back for lunch, but she learnt that he was with an old female inmate called Huiming [transliteration of 輝明]. Huiming asked X to go to Fo Xin Hostel, which was in the vicinity, to meet her. When X got to the hostel, Huiming said that she was hungry and the applicant told her to go to buy some bread. Huiming was away for a long time and still did not come back. The applicant made use of this opportunity and had sexual intercourse with X in a room. X said that the applicant forcibly removed her clothes. She resisted and told him to go away but she was weaker than him in terms of physical power, so in the end he penetrated into her private parts.", "zh-HK": "2)她讀五年級，應該是下學期的某一天中午，X返回該中心，見不到申請人，她打電話叫他回來吃午飯。但得悉他原來與一名舊女院友“輝明”在一起，而“輝 明”亦叫X去附近的「佛馨旅舍」見面。X到了旅舍後，“輝 明”說肚餓，申請人便叫她去買麵包，但“輝 明”一去便去了很久，而申請人就趁機在房內與X發生性行為。X說當時申請人強行將她的衣服脫去。她反抗，叫他走開，但不夠申請人力大，故此最後被申請人插入下體。" } }, { "doc_id": 17, "seg_id": 24, "translation": { "en": "3rd count", "zh-HK": "控罪3" } }, { "doc_id": 17, "seg_id": 25, "translation": { "en": "3)The applicant told three girls, namely X, Wang Zhilan and Y to join him to accompany an inmate called Jiao Jiao [transliteration of 嬌嬌] to her hometown. Subsequently they stayed overnight at Bulangshan Nong Mao Market Reception House. The applicant and the girls occupied the same room, in which there were three beds. Wang Zhilan and Y each slept on one bed, while X and the applicant slept on the remaining one. After supper, they came back and sat on the beds to watch television. When Wang Zhilan and Y seemed to have gone asleep, the applicant touched X with his hands, took off her trousers and had sexual intercourse with her. He did not use any condom. He ejaculated on X’s belly and then cleaned himself with paper. It seemed that the television was on when this was happening. The applicant did not say anything and the sexual intercourse position was the man lying on top of the girl.", "zh-HK": "3)申請人叫X、“王 志 蘭”同Y三個女童，與他一同送一名叫“嬌 嬌”的院友回鄉，後來在「布朗山農貿市場招待所」留宿，申請人和她們共住一房間，內有三張床。“王 志 蘭”和Y各自睡一張，X和申請人睡在另一張。吃完晚飯回來後他們坐在床上看電視。“王 志 蘭”同Y好像睡著了，申請人便伸手摸X，除掉她的褲與她性交。申請人沒有用避孕套，他在X的肚皮射精，然後再用紙替自己清潔，期間電視好像開著，而申請人就沒有講過什麼，性交的動作是男上女下。" } }, { "doc_id": 17, "seg_id": 26, "translation": { "en": "4)Wang Zhilan gave evidence that during the first night of their stay at Bulangshan, she saw that the applicant and X slept on the same bed and that some bodily movements, which appeared to be sexual intercourse movements, were going on under the quilt.", "zh-HK": "4)“王 志 蘭”作供時稱在布朗山第一晚留宿時，看見申請人和X睡在同一張床及在被下進行疑似性交的動作。" } }, { "doc_id": 17, "seg_id": 27, "translation": { "en": "5th count", "zh-HK": "控罪5" } }, { "doc_id": 17, "seg_id": 28, "translation": { "en": "5)The applicant and X had sexual intercourse also in the Centre. [She] could not remember how many times there had been, or the circumstances in which the first time happened. The occasion of which she had the clearest memory was that one day she went to the applicant’s room to play with the computer. She played for a long time until one o’clock in the small hours. The applicant, after cleaning his face and brushing his teeth, entered the room and locked the door. He told X not to leave and asked her to stay and sleep with him. X said she wanted to play a while longer, using that as an excuse for not doing what he said, but the applicant simply switched off the computer. At last, X gave in to the applicant’s persuasion. She stayed in the room and lay on the bed with the applicant, who kissed her mouth to mouth, caressed her, removed her clothes and made love to her, proceeding in the same position as usual, i.e. the applicant on top of X. Finally, he ejaculated on X’s thigh. Then [they] cleaned [themselves] and they slept together in the room until daybreak. In the course of doing this, the applicant did not say anything.", "zh-HK": "5)在該中心裡面X和申請人亦發生過性行為，次數不記得，第一次如何發生亦不記得。但最記得有一次是X去申請人房間玩電腦，玩了很久直至凌晨一點，申請人洗面、刷牙後入房鎖門，叫X不要走，留下陪他睡，X推搪說要再玩一會，申請人就索性連電腦都關掉，終於經過一輪說服之後，X留下和申請人在床上親嘴、愛撫、寬衣、性交，姿勢同往常一樣，男上女下，最後申請人在X大腿射精，接着清洗，一齊在房內睡到天光，期間申請人沒有說話。" } }, { "doc_id": 17, "seg_id": 29, "translation": { "en": "6)X said that when the above happened, it was probably the second term of her primary 6 school year, and that the weather was a bit cold at the time.", "zh-HK": "6)X說事發時，她應該是讀6年級下學期，當時天氣有少少冷。" } }, { "doc_id": 17, "seg_id": 30, "translation": { "en": "6th count", "zh-HK": "控罪6" } }, { "doc_id": 17, "seg_id": 31, "translation": { "en": "7)Besides having sexual intercourse with X, when the applicant was having video chats with her on line, there were occasions on which the applicant told X to strip herself and also on which the applicant exposed his private parts to X and even masturbated himself, leading to ejaculation. This happened two or three times in total. On one occasion, other people were present and they saw images transmitted through the internet, showing what the applicant was doing. In the Centre, only the applicant’s room was equipped with a computer. When he was in Hong Kong and wanted to call the people of the Centre together for a meeting, he would telephone the Centre to ask them to switch on the computer so that he could talk with them. X had a key to [the door of] the applicant’s room, so she could often enter the room to play and could also ask her friends to come to accompany her. One night during the first term of her primary 6 school year, X asked Y and Wang Zhilan to sleep with her in the applicant’s room. On that occasion, X chatted with the applicant through the internet and what described above took place. X and Yang Gaiying, the housekeeper of the Centre, each had a key to [the door of] the applicant’s room, but other people did not.", "zh-HK": "7)除性交之外，申請人曾經在網上用視頻和X談話時要她除衫，申請人亦試過向X展示下體，甚至自瀆、射精，這情況一共試過兩、三次。有一次還有其他人在場看到申請人在網上的行為。該中心只有申請人的房間有電腦，如果他在香港，但又想召集該中心的人開會，就會打電話過來叫他們開電腦，進行對話。由於X有申請人的房間鎖匙，她可以經常入去玩，亦可叫朋友陪她。在6年班上學期的某一晚，X叫Y和“王 志 蘭”陪她在申請人房間睡時，X與申請人在網上傾談並發生上述的情況。X和該中心保姆“楊 改 英”各自擁有一條申請人房間鎖匙，其他人則沒有。" } }, { "doc_id": 17, "seg_id": 32, "translation": { "en": "8)Both Y and Wang Zhilan gave evidence that on the night in question they saw that on the computer screen the applicant exposed his private parts to X. Wang Zhilan and Yang Gaiying also said that they had seen X and the applicant going together into the bathroom to take a bath.", "zh-HK": "8)Y和“王 志 蘭”作供時均稱當晚她們看見申請人在電腦屏幕上向X展露下體。“王 志 蘭”和“楊 改 英”亦說他們曾看見X和申請人一起進入衛生間洗澡。" } }, { "doc_id": 17, "seg_id": 33, "translation": { "en": "9)X said that she called the applicant sworn father and looked upon him as a benefactor because he had helped her. The applicant went to the Centre three or four times a year; mostly at the time of the payment of school fees at the beginning of a school term. According to X, sexual intercourse had taken place in the Centre for more than 10 times. On some of these occasions the applicant asked X to stimulate his private parts by her hands or her mouth, but X helped him by using only her hands.", "zh-HK": "9)X說她叫申請人做乾爹，視他為恩人，因為受過申請人的幫助。申請人一年返該中心三、四次，主要在新學期交學費時。X還說在該中心裡面發生性行為次數超過十次，性交時申請人曾試過要求X用手或口刺激他的下體，不過X就只是用手幫他。" } }, { "doc_id": 17, "seg_id": 34, "translation": { "en": "10)A forensic pathologist examined X on 8 April 2009 and found that her hymen had been completely torn in the past. The condition of the tear showed that something, perhaps a penis, had definitely pierced the hymen, resulting in the damage.", "zh-HK": "10)法醫在2009年4月8日檢查X，發現X的處女膜已於過往完全地撕裂，根據撕裂的情況，可以斷定之前曾有例如陰莖的物件穿過處女膜造成損害。" } }, { "doc_id": 17, "seg_id": 35, "translation": { "en": "7th count", "zh-HK": "控罪7" } }, { "doc_id": 17, "seg_id": 36, "translation": { "en": "11)Y moved into and lived in the Centre in 2005 when she was studying in primary 5 and she left there after primary 6. Sometime between 7 and 8 p.m. one day during the second term of her primary 6 school year, when Y and Huiming were sleeping in the lower bunk of a bunk bed in a room on the second floor, the applicant suddenly entered the room and fondled Y’s breasts with his hands. Y resisted but she was weaker in strength than the applicant. After a while, he left on his own.", "zh-HK": "11)Y在2005年讀小五時入住該中心並在小六後離開該處。小六下學期一個晚上7、8時，當Y和“輝 明”在2樓房間內一張碌架床下格睡時，申請人突然進入房間並用雙手撫摸Y的胸部。Y反抗但不及申請人大力。過了一會，申請人便自行離開。" } }, { "doc_id": 17, "seg_id": 37, "translation": { "en": "Defence case", "zh-HK": "辯方案情" } }, { "doc_id": 17, "seg_id": 38, "translation": { "en": "12)The applicant gave evidence and he denied all these accusations. He contracted poliomyelitis when he was one year old. His legs became crippled and he needed supporting equipment in order to walk. A doctor advised him to use a walking frame, but due to his sense of inferiority, he thought that the sight of his using it did not look nice, so he did not use it. However, he had been using a walking stick for 20 years or so. Without it his movements would have been much restricted and he would have become prone to fall or tumble because his left leg was completely strengthless.", "zh-HK": "12)申請人作供否認上述指控。他在一歲時染上小兒麻痺，雙腳殘疾，要用器材輔助行路。醫生亦叫他用腳架，但因他自卑覺得不好看便沒有用。但他用了十多二十年拐杖，否則行動會不方便，容易跌倒，因為他的左腳完全沒有力。" } }, { "doc_id": 17, "seg_id": 39, "translation": { "en": "13)During each visit to the Centre, he would stay for about two weeks; but more than half of the time would be spent on making visits outdoors. He would take photographs and make reports about his visits. After doing these, he would send emails to the sponsors and upload the information onto the internet. After he returned to Hong Kong, he would store the photographs in the computer. The dates and captions of the photographs were determined and designed according to the information contained in the files which were made for the purpose of keeping the photographs taken during each of his journeys; for example, the period during which he took Jiao Jiao to her hometown in Buhangshan was 4 to 6 May 2007.", "zh-HK": "13)申請人每次返回該中心大約逗留兩星期，不過超過一半時間會在外面探訪。他會拍照及做探訪報告，之後發電郵給贊助人和將資料放上網。他回港後會將有關相片下載電腦。而每張相片的日子及標題是根據為收錄每次行程的相片而製作的文件夾內的資料得出來的。例如他帶“嬌 嬌”返回布朗山鄉下就是2007年5月4至6號。" } }, { "doc_id": 17, "seg_id": 40, "translation": { "en": "14)The applicant claimed that he had never told any child in the Centre to go into the bathroom and stay inside together with him. He said he had only asked some children in the Centre to bring some articles of everyday use into the bathroom to give them to him so that he could take a bath.", "zh-HK": "14)申請人稱他從來沒有叫過任何院童一齊入去衛生間逗留。他只曾叫過院童遞日用品入衛生間給他洗澡。" } }, { "doc_id": 17, "seg_id": 41, "translation": { "en": "15)According to him, in September 2006 X, Y and Huiming were all in the Centre, but during the period in which the applicant visited the Centre two times (i.e. between November 2006 and February 2007) Huiming was gone. As far as he knew, Huiming did not want to go to school, she wanted to look for a job instead. As for X, she returned to her hometown upon completion of primary 6, because her academic performance was poor and she assaulted someone in the Centre. The applicant did not really expel her from the Centre. He just wanted her to go to Menhhai Secondary School to be a boarder, but X did not want to go there and she made her own decision to return to her hometown in Menghai.", "zh-HK": "15)他亦說在2006年9月，X、Y同“輝 明”都在該中心，不過“輝 明”就在申請人兩次返回該中心期間走了(即2006年11月至2007年2月)，據知“輝 明”不想讀書，要找工作。至於X，她在完成小六之後便返回鄉下，因她成績差及在院內打人。申請人沒有真的趕她走，只是要她去勐海中學寄宿，X不願意才自己決定返回勐滿家鄉。" } }, { "doc_id": 17, "seg_id": 42, "translation": { "en": "16)He said that on one occasion Wang Zhilan and Y refused to give help to move some articles and were sternly reprimanded by him. Apart from that, when Wang Zhilan was at the junior secondary education stage, she had poor academic results and her manners were bad. For these reasons she was sent to a boarding school, but subsequently she returned to the Centre. Similarly, after Y finished primary education, she was criticized by her teacher for her bad academic performance and was even told by her teacher that she should not go to school anymore. It was only because the applicant interceded for her that she could continue to receive education. Subsequently, however, Y chatted on the phone all day long and was scolded by the applicant.", "zh-HK": "16)他亦說有一次“王 志 蘭”和 Y不肯幫手搬東西，他嚴厲斥責他們。此外，“王 志 蘭”曾經在初中時段成績差、態度欠佳，被送去寄宿學校，之後才返回該中心。同樣，Y讀完小學之後，老師嫌她成績差，叫她不要再讀，最後要申請人幫她求情才可以繼續升學，但之後Y又整天傾談電話，所以給申請人責駡。" } }, { "doc_id": 17, "seg_id": 43, "translation": { "en": "17)Regarding the incident in Bulangshan Nong Mao Market Reception House, the applicant stated that according to the information stored in the computer files, the journey should have taken place from 2 to 4 May 2007. As Jiao Jiao was only 7 years old, the applicant worried that he could not take care of her properly due to the difficulties he had in getting about. He therefore asked the children in the Centre who would like to go with him. The result was that X, Y and Wang Zhilan were willing to go with him. It was a long journey and Jiao jiao’s home was not big enough to accommodate all of them, so the itinerary he worked out was that for two nights they would sleep in a hostel. At night, he alone slept on the bed closest to the door, while the other two beds were allocated by the three girls themselves. The activities for the following day were that they first went to a restaurant to have lunch and then to Jiao Jiao’s home to play. They returned to the hostel after supper. Nothing happened on that night just as nothing happened on the first night. They left early in the morning on the third day.", "zh-HK": "17)就「布朗山農貿市場招待所」事件，申請人聲稱根據電腦文件夾資料顯示那次行程應該是2007年5月2至4日。因“嬌 嬌”只得7歲，申請人怕他自己行動不便，照顧不到她，故此問院童誰有興趣同行，結果是X、Y同“王 志 蘭”願意同行。由於路途遠，所以原本已經打算住兩晚旅館，因為“嬌 嬌”家不夠地方招呼他們。晚上是他一個人睡最近門口的那張床，其餘兩張床則由三名女童自行分配。至於第二天行程，就是先到餐館午飯，然後再去“嬌 嬌”家裏玩耍，食完晚飯後返回旅館，當晚同第一晚一樣，沒有任何事發生，第三日早上他們一早就離開。" } }, { "doc_id": 17, "seg_id": 44, "translation": { "en": "18)In the Centre, any bodily contacts the applicant had with the children were limited to those necessary in their daily life and in their games, and absolutely nothing more than that. The computer in his room was used for two purposes: 1. To show, through its connection with the closed circuit TV, what was going on at the main door on the ground floor and in the sitting rooms on the two storeys; 2. To talk, chat or hold meetings with individual inmates or all the inmates through the video chatting function. He denied he had ever used it to expose his private parts. He protested that the Fo Xin Hostel incident was sheer fiction. He said he had never been to that place and had not even heard of it.", "zh-HK": "18)在該中心內，申請人與院童的身體接觸只限於生活和玩耍的層次，絕無其他。他房內的電腦就有兩個功能：一，透過閉路電視看到地下大門與兩層大廳的狀況；二，透過視頻與個別或所有院童談話、閒談或者開會，露體則絕對沒有。申請人亦說「佛馨旅舍」事件根本是子虛烏有，他從沒有聽過或去過該地方。" } }, { "doc_id": 17, "seg_id": 45, "translation": { "en": "19)The applicant explained that he gave more money to X than to others because he wanted to financially support the elder sister and other family members of X. He said another inmate, who was called Hui Zi, also had a bank card. At the early stage of Yang Gaiying’s service at the Centre, he was not sure how long Yang Gaiying would work there, so he gave the bank cards to X and Hui Zi. These two children were more senior in age and had a sense of responsibility. He let them have the cards as a precaution against contingencies. As for the keys to the door of his room, initially only Yang Gaiying had a key. However, she was lazy and she just gave it to the inmates so that they could take turns to enter the room to clean it, and as a result the key was lost. Subsequently, he had a number of duplicate keys made and X said she had one of them.", "zh-HK": "19)申請人解釋他給X的錢比其他人多，原因是他要資助X的姊姊及家人，另外一名院童“會 支”亦有一張銀行卡，因“楊 改 英”初到該中心工作時，他不知道“楊 改 英”會做多久所以把銀行卡交給X和“會 支”，兩名年齡較大及有責任心的院童負責以備急時之需。至於他的房門匙，原本只有“楊 改 英”一個有，不過因她懶，直接交給院童輪流入去打掃而不見了，後來配多幾條，X便聲稱擁有其中一條。" } }, { "doc_id": 17, "seg_id": 46, "translation": { "en": "20)He said that the rent for renting a room at the hostel at Bulangshan was low, just 30 to 40 yuan per night, but he rented one room only. He said the reason was that he had to take care of the children.", "zh-HK": "20)他亦說儘管布朗山的旅館租金很平宜，三至四十元一晚，他只租一間房間的原因是要看管小朋友。" } }, { "doc_id": 17, "seg_id": 47, "translation": { "en": "21)Lastly, the applicant claimed that starting from 2002 he had problems concerning erection. In 2004, he sought treatment as an outpatient. In 2006, he was treated at the urological department. Acting on the advice given by the doctor, he took Viagra, but it was too expensive and the side effect was too strong. After discussion with his wife, he decided to stop using it.", "zh-HK": "21)最後申請人聲稱他在2002年開始有勃起問題，2004年看街症，至2006年看秘尿科，結果經醫生建議，他試過服用「偉哥」，不過價錢太貴，副作用太大，所以他和太太商量過後決定不繼續服用。" } }, { "doc_id": 17, "seg_id": 48, "translation": { "en": "22)Doctor Chan, the second defence witness, gave evidence that from March 2000 up to the present the applicant was a patient of the orthopaedics department of Pamela Youde Nethersole Eastern Hospital. His medical history showed that due to poliomyelitis, both of his legs were weak, particularly the left leg, and that he had to walk with the support of a walking stick. The result of the assessment of the strength of his left leg and right leg was respectively point 3 and point 4. Point 3 meant that he was able to stand up to gravitation, i.e. he could walk. Point 4 meant that he could resist some outside forces other than gravitation; for example, the doctor using his hand to obstruct his walking movement. If he could completely kick away the doctor’s hand, that was point 5, which meant completely normal.", "zh-HK": "22)辯方第2證人陳醫生說，申請人在2000年3月到現在都是東區那打素醫院骨科的病人，而根據病歷顯示，由於小兒麻痺症，申請人兩條下肢都較弱，尤以左腳為甚，要用手杖來輔助行路。他左右兩隻腳的力量評分依次為三分及四分，三分的意思是可以抗拒地心吸力，即可以行路，四分就是能夠抗拒地心吸力以外的一些外來力量，例如醫生伸手去阻擋腳步，如果完全可以踢開醫生隻手就是五分，完全正常。" } }, { "doc_id": 17, "seg_id": 49, "translation": { "en": "23)Dr. Chan said that when the applicant completely stood still, he could stand in that position for five to six minutes without the support of a walking stick; but that if he bent from the waist and in addition someone gave him a push, it would be very difficult for him to keep his balance; and that if he wanted to squat down, he would encounter even greater difficulties.", "zh-HK": "23)陳醫生說申請人在沒有拐杖幫助下站立五、六分鐘，在完全企定的情況下是可以的，但如果要彎腰，再加上有人推他一下，他就好難保持平衡，如果要蹲下就更加困難。" } }, { "doc_id": 17, "seg_id": 50, "translation": { "en": "24)Dr. Chow, the third defence witness, testified that the applicant was referred by the Chaiwan Clinic in October 2004, that he came to the urological department of Pamela Youde Nethersole Eastern Hospital for treatment for the first time in March 2006, and that he was diagnosed as suffering from moderate degree erectile dysfunction. The meaning of moderate degree was that he could not succeed in having sexual intercourse every time he wanted, but this did not mean that he failed every time. He could, for example, be successful five times out of ten. However, that was the result of medication. Dr. Chow had no idea as to what his condition was before any medicine was prescribed for him or how he would perform without taking any medicine. The medicine in question was actually Viagra. Dr. Chow said that in all other aspects the applicant was normal; that is to say, there were no other reasons which led to his impotence except idiopathic causes.", "zh-HK": "24)辯方第3證人周醫生證實，申請人2004年10月由柴灣診所轉介，2006年3月首次到東區那打素醫院秘尿科投診，最後被評定有中度勃起障礙，中度的意思就是不能每次都成功性交，不過亦不是每次都會失敗，例如十次就有五次好成功，不過是藥物治療下所得出的結果，至於未處方之前情況和沒有食藥的情況下是如何，周醫生就不清楚。有關藥物其實就是俗稱「偉哥」。此外，醫生說申請人其他一切正常，亦即是沒有自發性以外的原因令他陽痿。" } }, { "doc_id": 17, "seg_id": 51, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 17, "seg_id": 52, "translation": { "en": "The applicant put forward five grounds of appeal, of which grounds 2 and 3 are about matters of principle, in that ground 2 is about the constitutionality of the offences and ground 3 alleges that the applicant did not have a fair trial; while the other three grounds are about issues concerning the contents of each individual offence.", "zh-HK": "申請人提出5項上訴理由。其中上訴理由2是涉及各項控罪違憲及上訴理由3是申請人沒有獲得公平審訊的原則性爭議。另外，其他3項上訴理由則涉及各項控罪個別內容的爭議。" } }, { "doc_id": 17, "seg_id": 53, "translation": { "en": "1)Ground of appeal 2: Unconstitutionality of the Offences", "zh-HK": "1)上訴理由2：控罪違憲" } }, { "doc_id": 17, "seg_id": 54, "translation": { "en": "(1)Section 153P of the Ordinance", "zh-HK": "(1) 《條例》第153P 條" } }, { "doc_id": 17, "seg_id": 55, "translation": { "en": "Section 153P of the Ordinance provides that:", "zh-HK": "《條例》第 153P 的內容如下：" } }, { "doc_id": 17, "seg_id": 56, "translation": { "en": "“153PExtra-territorial effect of sexual offence provisions listed in Schedule 2", "zh-HK": "「153P附表2所列性罪行條文的域外法律效力" } }, { "doc_id": 17, "seg_id": 57, "translation": { "en": "Certain sexual offences committed against children outside Hong Kong; related arrangements and advertisements", "zh-HK": "某些在香港以外地方對兒童犯的性罪行；相關安排及宣傳" } }, { "doc_id": 17, "seg_id": 58, "translation": { "en": "(1)Where –", "zh-HK": "(1) 凡—" } }, { "doc_id": 17, "seg_id": 59, "translation": { "en": "(a)(i)a person who is a Hong Kong permanent resident or who ordinarily resides in Hong Kong;", "zh-HK": "(a) 任何—" } }, { "doc_id": 17, "seg_id": 60, "translation": { "en": "(ii)a body corporate that is incorporated or registered in Hong Kong; or", "zh-HK": "(i) 身為香港永久性居民或通常居於香港的人；" } }, { "doc_id": 17, "seg_id": 61, "translation": { "en": "(iii)a body of persons, whether corporate or unincorporated, that has a place of business in Hong Kong,", "zh-HK": "(ii) 在香港成立或註冊的法人團體；或" } }, { "doc_id": 17, "seg_id": 62, "translation": { "en": "commits any act outside Hong Kong; and", "zh-HK": "(iii) 不論是法團抑或不是法團的在香港有業務地點團體，在香港以外地方作出任何作為；而" } }, { "doc_id": 17, "seg_id": 63, "translation": { "en": "(b)the act –", "zh-HK": "(b) 該作為—" } }, { "doc_id": 17, "seg_id": 64, "translation": { "en": "(i)would have constituted an offence under any of the provisions specified in Schedule 2 had it been committed in Hong Kong; and", "zh-HK": "(i) 假若是在香港作出即構成附表2指明的任何條文所訂罪行；及" } }, { "doc_id": 17, "seg_id": 65, "translation": { "en": "(ii)is committed in relation to a person under the age of 16 or in the case of an offence under section 123 or 140, under the age of 13,", "zh-HK": "(ii) 是就未滿16歲的人或(如屬第123或140條所訂罪行)未滿13歲的人而作出的，" } }, { "doc_id": 17, "seg_id": 66, "translation": { "en": "then the person or body shall be guilty of that offence.", "zh-HK": "該人或該團體即屬犯該罪行。" } }, { "doc_id": 17, "seg_id": 67, "translation": { "en": "(2)Where any person or body of persons, whether corporate or unincorporated, commits any act outside Hong Kong that –", "zh-HK": "(2) 凡任何人或任何不論是法團抑或不是法團的團體在香港以外地方作出任何作為，而該作為—" } }, { "doc_id": 17, "seg_id": 68, "translation": { "en": "(a)would have constituted an offence under any of the provisions specified in Schedule 2 had it been committed in Hong Kong; and", "zh-HK": "(a) 假若是在香港作出即構成附表2指明的任何條文所訂罪行；及" } }, { "doc_id": 17, "seg_id": 69, "translation": { "en": "(b)is committed in relation to a person who is a Hong Kong permanent resident or who ordinarily resides in Hong Kong and is –", "zh-HK": "(b) 是就身為香港永久性居民或通常居於香港且—" } }, { "doc_id": 17, "seg_id": 70, "translation": { "en": "(i)under the age of 16; or", "zh-HK": "(i) 未滿16歲的人；或" } }, { "doc_id": 17, "seg_id": 71, "translation": { "en": "(ii)in the case of an offence under section 123 or 140, under the age of 13,", "zh-HK": "(ii) (如屬第123或140條所訂罪行)未滿13歲的人，" } }, { "doc_id": 17, "seg_id": 72, "translation": { "en": "then the person or body shall be guilty of that offence.", "zh-HK": "而作出的，該人或該團體即屬犯該罪行。" } }, { "doc_id": 17, "seg_id": 73, "translation": { "en": "(3)Where a defendant is charged with an offence that is an offence by virtue of subsection (1) or (2) and involves a sexual act done by him with or to another person, it is a defence for the defendant to establish that –", "zh-HK": "(3) 凡被告人被控犯某項憑藉第(1)或(2)款而構成的罪行，而控罪涉及被告人與另一人或對另一人作出性行為，則如被告人證明以下情況，可以此作為免責辯護—" } }, { "doc_id": 17, "seg_id": 74, "translation": { "en": "(a)at the time of the sexual act, there existed between the defendant and that other person a marriage that was valid, or recognized as valid, under the law of –", "zh-HK": "(a) 在該性行為作出時，被告人與該另一人之間存在根據以下法律屬有效或獲承認為有效的婚姻—" } }, { "doc_id": 17, "seg_id": 75, "translation": { "en": "(i)the place where the marriage was solemnized;", "zh-HK": "(i) 舉行婚禮的地方的法律；" } }, { "doc_id": 17, "seg_id": 76, "translation": { "en": "(ii)the place where the sexual act was done; or", "zh-HK": "(ii)作出該性行為所在地方的法律；或" } }, { "doc_id": 17, "seg_id": 77, "translation": { "en": "(iii)the place of the defendant’s residence or domicile;", "zh-HK": "(iii)被告人的住所或居籍的所在地方的法律；" } }, { "doc_id": 17, "seg_id": 78, "translation": { "en": "(b)when it was solemnized, the marriage was genuine; and", "zh-HK": "(b) 在舉行婚禮時，該婚姻是真實的；及" } }, { "doc_id": 17, "seg_id": 79, "translation": { "en": "(c)at the time of the sexual act, that other person consented to the sexual act.”", "zh-HK": "(c) 在該性行為作出時，該另一人同意該性行為。」" } }, { "doc_id": 17, "seg_id": 80, "translation": { "en": "The provisions listed in Schedule 2 include section 124 (i.e. intercourse with girl under 16), section 146 (i.e. indecent conduct towards child under 16) and section 122 (i.e. indecent assault) of the Ordinance.", "zh-HK": "附表 2 所列出的條款包括《條例》第 124 條(即「與年齡在 16 歲以下的女童性交」)，第 146 條(即「向年齡在 16 歲以下的女童作出猥褻行為」)及第 122 條(即「猥褻侵犯」)。" } }, { "doc_id": 17, "seg_id": 81, "translation": { "en": "(2)Background of the legislation", "zh-HK": "(2) 立法背景" } }, { "doc_id": 17, "seg_id": 82, "translation": { "en": "Section 153P of the Ordinance originated from the Crimes (Amendment) Bill 1999, which was introduced into the Legislative Council on 7 July 1999 and eventually became law and was gazetted in 2003. We set out below relevant passages quoted from the Legislative Council Brief submitted by the Security Bureau to the Legislative Council on 8 January 2002:", "zh-HK": "《條例》第 153P 條源自《1999 年刑事罪行(修訂)條例草案》，它於 1999 年 7 月 7 日提交立法會，最終於 2003 年立法及登憲。本庭節錄「保安局」於 2002 年 1 月 8 日提交的「立法會參考資料摘要」的其中相關內容：" } }, { "doc_id": 17, "seg_id": 83, "translation": { "en": "“General Background", "zh-HK": "「一般背景" } }, { "doc_id": 17, "seg_id": 84, "translation": { "en": "United Nations Convention on the Rights of the Child (UNCRC)", "zh-HK": "聯合國《兒童權利公約》" } }, { "doc_id": 17, "seg_id": 85, "translation": { "en": "3.Under Article 34 of the UNCRC, which applies to Hong Kong, children should be protected from all forms of sexual exploitation and sexual abuse. Enacting legislation which prohibits child pornography and child sex tourism will be a positive step to implement the UNCRC.", "zh-HK": "3．根據適用於香港的聯合國《兒童權利公約》的第34條，兒童應該受到保護，免被利用進行各類色情活動和免遭性侵犯。制定法例禁止兒童色情物品和涉及兒童的性旅遊活動，是執行上述公約的積極步驟。" } }, { "doc_id": 17, "seg_id": 86, "translation": { "en": "……", "zh-HK": "……" } }, { "doc_id": 17, "seg_id": 87, "translation": { "en": "Child Sex Tourism", "zh-HK": "涉及兒童的性旅遊活動" } }, { "doc_id": 17, "seg_id": 88, "translation": { "en": "7.Sexual exploitation of children is known to have international dimensions. Child sex tourism, that is, arrangements which enable adults to travel from their home countries to other places, in particular less-developed places, to engage in sexual activities involving children, is known to exist around the world. A number of countries, including Australia, the United States and many European countries, have enacted specific legislation against child sex tourism.", "zh-HK": "7.利用兒童進行色情活動，可牽涉不同國家。據悉世界很多地方都有涉及兒童的性旅遊活動，即安排成年人離開本土前往其他地方，特別是較落後的地方，進行涉及兒童的色情活動。而很多國家，包括澳洲、美國和歐洲多國，都已有專門法例，打擊這類活動。" } }, { "doc_id": 17, "seg_id": 89, "translation": { "en": "8.Hong Kong, through regular liaison with overseas law enforcement agencies, has been maintaining a close watch on the problem and assisted in the investigation of a number of cases. However, the Crimes Ordinance does not prohibit local residents from exploiting children sexually in other places. Nor does it provide protection to local children who may be abducted outside the territory and become targets of child sex tours. Given the heinous nature of child sex tours and the need for joint international efforts, legal sanctions must be imposed on perpetrators who prey on local or overseas children. We therefore propose to introduce legislative amendments to provide extra-territorial effect to certain sexual offences under the Crimes Ordinance in respect of acts committed to children where the perpetrator or the victim has a nexus with Hong Kong.", "zh-HK": "8.香港透過與海外執法機關定期聯絡，一直嚴密監察這方面的問題，並曾協助調查多宗這類案件。儘管如此，《刑事罪行條例》既沒有禁止香港人到外地利用兒童進行色情活動，也沒有條文保護本港兒童免在外地被誘拐，而淪為兒童性旅遊活動的受害者。由於這類活動極為罪惡，需要各國合力打擊，故我們必須透過立法，對踩躪本港或海外兒童的犯罪者施以制裁。因此，我們建議修訂法例，就《刑事罪行條例》所指的若干性罪行、如涉及與香港有關係的犯罪者或受害者的侵犯兒童行為，訂定域外法律效力。" } }, { "doc_id": 17, "seg_id": 90, "translation": { "en": "……", "zh-HK": "……" } }, { "doc_id": 17, "seg_id": 91, "translation": { "en": "Proposals relating to child sex tourism", "zh-HK": "有關涉及兒童的性旅遊活動的建議" } }, { "doc_id": 17, "seg_id": 92, "translation": { "en": "22.We propose to extend the application of 24 sexual offence provisions of the Crimes Ordinance to acts committed outside Hong Kong, the provisions are set out in Annex B. In other words, these provisions will be given extra-territorial effect. At present, 14 of these provisions are applicable to victims of any age. Four provisions currently apply to victims under the age of 21. We propose that the extra-territorial effect will only be applicable to cases where victims are under the age of 16 under these 18 provisions. Four of the remaining six provisions have applicable age limit of the victims set under the age of 16 and the other two under the age of 13. For these six provisions, we do not propose any change to the applicable age limit.", "zh-HK": "22．我們建議把《刑事罪行條例》中24條涉及性罪行的條文的適用範圍擴大至在香港以外作出的行為。有關條文的詳情見附件B。換言之，這些條文將獲賦予域外法律效力。目前，這些條文有14 條適用於任何年齡的受害者，四條適用於未滿21歲的受害者。我們建議，域外法律效力應只適用於這18條條文涵蓋的受害者為未滿16歲人士的個案。在其餘六條條文當中，分別有四條和兩條適用於16歲和未滿13歲的受害者。我們並不建議更改這六條條文的適用年齡界限。" } }, { "doc_id": 17, "seg_id": 93, "translation": { "en": "23.We further propose that the extra-territorial effect should cover the persons and corporations referred to in sub-paragraphs (a) to (c) below insofar as they are the perpetrators of the relevant criminal act outside Hong Kong and the persons referred to in sub-paragraph (a) below insofar as they are the victims of the relevant criminal act outside Hong Kong –", "zh-HK": "23.我們並建議，只要以下(a)至(c)分段所述的人和法團是在香港以外地方發生的有關犯罪行為的犯罪者，或以下(a)分段所述的人是在香港以外地方發生的有關犯罪行為的受害者，域外法律效力都會對他們適用:" } }, { "doc_id": 17, "seg_id": 94, "translation": { "en": "(a)a person who is a Hong Kong permanent resident or who ordinarily resides in Hong Kong;", "zh-HK": "(a)香港永久性居民或通常在香港居住的人；" } }, { "doc_id": 17, "seg_id": 95, "translation": { "en": "(b)a body corporate that is incorporated or registered in Hong Kong; or", "zh-HK": "(b)在香港成立或註冊的法人團體；或" } }, { "doc_id": 17, "seg_id": 96, "translation": { "en": "(c)a body of persons, whether corporate or unincorporated, whose principal place of business is Hong Kong.", "zh-HK": "(c)以香港為主要營業地點的團體，不論是法團或非法團團體。" } }, { "doc_id": 17, "seg_id": 97, "translation": { "en": "24.Separately, we propose to create an offence for arranging or advertising child sex tours. The offence covers any message sent through the Internet, any other forms of electronic transmission or other means.", "zh-HK": "24.此外，我們建議，安排或宣傳兒童色情旅遊活動，均應列為罪行。範圍包括透過互聯網、其他電子傳送方法或其他途徑傳送這類信息。" } }, { "doc_id": 17, "seg_id": 98, "translation": { "en": "25.We propose that valid marriage between the defendant and the victim will be a defence to a charge for extra-territorial sexual offences under the Bill provided that the victim consented to the act. We also propose that there shall be a defence for a person charged with publishing an advertisement for child sex tours if he did not have any reasonable cause to suspect it to be such an advertisement.”", "zh-HK": "25.我們建議，任何人如被控觸犯條例草案所指在海外發生的性罪行，但與受害者有有效的婚姻關係，並獲受害人同意進行有關行為，可作免責辯護。此外，我們建議，被控發布兒童色情旅遊活動廣告的人，如果沒有任何合理理由懷疑該廣告屬於這類廣告，可以提出這個理由作辯護。」" } }, { "doc_id": 17, "seg_id": 99, "translation": { "en": "In addition, we also quote the contents concerning section 153P from the Paper for the Legislative Council House Committee meeting on 20 June 2003:", "zh-HK": "另外，本庭節錄2003年6月20日「立法會內務委員會」會議文件涉及第153P條的相關內容：" } }, { "doc_id": 17, "seg_id": 100, "translation": { "en": "“The Bill", "zh-HK": "「條例草案" } }, { "doc_id": 17, "seg_id": 101, "translation": { "en": "3.The Bill seeks –", "zh-HK": "3.條例草案旨在——" } }, { "doc_id": 17, "seg_id": 102, "translation": { "en": "(a)…", "zh-HK": "(a)--" } }, { "doc_id": 17, "seg_id": 103, "translation": { "en": "(b)…", "zh-HK": "(b)--" } }, { "doc_id": 17, "seg_id": 104, "translation": { "en": "(c)to extend the application of certain sexual offence provisions to acts committed against children outside Hong Kong and prohibiting the making of any arrangement relating to commission of those acts and advertisements for such arrangement.", "zh-HK": "(c)把若干性罪行條文的適用範圍擴大至在香港以外地方作出的侵犯兒童行為，並禁止就干犯此類行為作出安排，以及禁止關於該等安排的宣傳。" } }, { "doc_id": 17, "seg_id": 105, "translation": { "en": "……", "zh-HK": "……" } }, { "doc_id": 17, "seg_id": 106, "translation": { "en": "Extra-territorial effect of sexual offence provisions listed in Schedule 2 of the Crimes Ordinance", "zh-HK": "《刑事罪行條例》附表2所列性罪行條文的域外法律效力" } }, { "doc_id": 17, "seg_id": 107, "translation": { "en": "52.The new section 153P of the Crimes Ordinance to be added by the Bill extends the application of 24 sexual offence provisions listed in the new Schedule 2 to the Crimes Ordinance to an act committed against a child outside Hong Kong if the defendant or the child has connections with Hong Kong. Valid marriage between the defendant and the victim will be a defence to a charge of extra-territorial sexual offences under the Bill provided that the victim consented to the act.", "zh-HK": "52.條例草案在《刑事罪行條例》加入的新訂第153P條訂明，如被告人或有關的兒童與香港有關連，《刑事罪行條例》新訂附表2所列的24項性罪行條文，將延展至適用於在香港以外地方就兒童作出的行為。任何人如被控觸犯條例草案所訂在域外發生的性罪行，但與受害人有有效的婚姻關係，並獲受害人同意進行有關行為，即可以此作為免責辯護。" } }, { "doc_id": 17, "seg_id": 108, "translation": { "en": "53.On the rationale for the proposed provisions, the Administration has explained that sexual exploitation of children is known to have international dimensions. Child sex tourism is known to exist around the world, and has inherent to it an extra-territorial element. Extra-territorial effect of the relevant offence provisions is essential for combating child sex tourism. Permanent residents and persons who ordinarily reside in Hong Kong, irrespective of their nationality, should be prohibited from engaging in the heinous acts of child sex tourism occurred outside Hong Kong. They should therefore be covered under the Bill.", "zh-HK": "53．關於訂定擬議條文的理據，政府當局解釋，眾所周知，利用兒童進行色情活動可涉及跨的國安排，全球多個國家均有兒童性旅遊活動，而兒童性旅遊活動本質上蘊含域外元素。因此，就相關罪行條文訂定域外法律效力，在打擊兒童性旅遊活動方面至為重要。永久性居民和通常在港居住的人士，不論其屬哪一國籍，均應被禁止參與令人髮指的境外兒童性旅遊活動。因此，他們應被納入條例草案的規管範圍。" } }, { "doc_id": 17, "seg_id": 109, "translation": { "en": "54.Regarding the enforcement of the provisions, the Administration has explained that if a person who is a Hong Kong permanent resident or who ordinarily resides in Hong Kong commits an offence under new Schedule 2 overseas, he could be arrested and prosecuted before Hong Kong courts when he returns to Hong Kong. In this situation, evidence/witnesses will be required from the place where the offence was committed. This may involve liaison at the law enforcement level and/or a formal request for mutual legal assistance. Depending on the circumstances, the perpetrator may be extradited and then prosecuted in Hong Kong.", "zh-HK": "54.至於如何執行該等條文，政府當局解釋，香港永久性居民或通常在港居住的人士如在境外干犯新訂附表2所列的罪行，可在返港時被拘捕和檢控，並交由香港法庭審理。在此情況下，當局或需向案發當地蒐集證據或會見當地證人。此工作或會涉及執法機關之間的聯繫及/或正式要求提供相互司法協助。當局會視乎有關情況，可能將疑犯引渡來港進行檢控。" } }, { "doc_id": 17, "seg_id": 110, "translation": { "en": "……", "zh-HK": "……" } }, { "doc_id": 17, "seg_id": 111, "translation": { "en": "57.The Administration has explained that the 24 offences are included because they relate more directly to sexual exploitation of children. Other sexual offences, such as living on earnings of prostitution of others, keeping a vice establishment etc. are considered less directly relevant. As the purpose of the proposal is to deal with a particular problem by extending the application of the existing sexual offences under the Crimes Ordinance, the Administration considers that efforts should be focused on the most directly relevant offences and the net should not be casted too wide. Extra-territorial effect is therefore not proposed to be extended to offences which are not likely to be the principal offences committed by paedophiles.”", "zh-HK": "57.政府當局解釋，把該24項罪行列入附表2的原因是，該等罪行均與利用兒童作色情活動有較直接的關係。當局認為其他性罪行，例如依靠他人賣淫的收入為生、經營賣淫場所等，與上述行為的關係並非那麼直接。由於此項建議的目的，是藉着擴大《刑事罪行條例》所訂現有性罪行的適用範圍以處理特定的問題，政府當局認為應着力對付最直接相關的罪行，而條文的範圍不應過於廣泛。因此，當局不建議把域外法律效力擴大至涵蓋不大可能屬孌童癖者干犯的主要罪行的行為。」" } }, { "doc_id": 17, "seg_id": 112, "translation": { "en": "17.Furthermore, in May 2003 the Security Bureau submitted the Administration’s Response to Submission by Law Society of Hong Kong dated 5.5.2003. We set out the relevant parts in the Response below:", "zh-HK": "另外，保安局於2003年5月提交「政府對香港律師會在2003年5月5日提交的意見書的回應」。本庭就該意見書適用的部分節錄如下：" } }, { "doc_id": 17, "seg_id": 113, "translation": { "en": "“……", "zh-HK": "「……" } }, { "doc_id": 17, "seg_id": 114, "translation": { "en": "9.In addition, under Article 3 of the Optional Protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (the Optional Protocol), each state party has to ensure, inter alia, that possession of child pornography be made an offence under its criminal law before it may comply with the Optional Protocol.", "zh-HK": "9.此外，根據《聯合國兒童權利公約》的《關於買賣兒童、兒童賣淫和兒童色情製品問題的任擇議定書》)(《任擇議定書》)的第3條，各締約國在符合該任擇議定書之前，必須確保已把管有兒童色情物品定為刑事罪行。" } }, { "doc_id": 17, "seg_id": 115, "translation": { "en": "……", "zh-HK": "……" } }, { "doc_id": 17, "seg_id": 116, "translation": { "en": "Extra-territorial effect of offences listed under Schedule 2", "zh-HK": "附表2所列罪行的域外法律效力" } }, { "doc_id": 17, "seg_id": 117, "translation": { "en": "12.Sexual exploitation of children is known to have international dimensions. Child sex tourism, that is, arrangements which enable adults to travel from their home countries to other places, in particular less-developed places, to engage in sexual activities involving children, is known to exist around the world. Child sex tourism has inherent to it an extra-territorial element. Extra-territorial effect of the relevant offence provisions is essential for combating child sex tourism.", "zh-HK": "12.眾所周知，利用兒童進行色情活動可涉及跨國安排，多國均有兒童性旅遊活動，即安排成年人離開本國前往其他地方，特別是發展中國家，參與涉及兒童的性活動。兒童性旅遊活動本身就蘊含域外元素，因此，相關罪行條文中的域外法律效力，在打擊兒童性旅遊活動方面極為重要。" } }, { "doc_id": 17, "seg_id": 118, "translation": { "en": "13.The Optional Protocol mentioned in paragraph 9 above also states that each state party should take measures to establish its jurisdiction over the relevant offences in the following cases:", "zh-HK": "13.上文第9段所述的任擇議定書亦表明，各締約國須採取措施，對符合下列情況的罪行確立司法管轄權：" } }, { "doc_id": 17, "seg_id": 119, "translation": { "en": "(a)when the alleged offender is a national of that State or a person who has his habitual residence in its territory;", "zh-HK": "(a)涉嫌犯罪者是該國國民或慣常居於該國領土的人士；" } }, { "doc_id": 17, "seg_id": 120, "translation": { "en": "(b)when the victim is a national of that State.", "zh-HK": "(b)受害者是該國國民。" } }, { "doc_id": 17, "seg_id": 121, "translation": { "en": "14.Hong Kong, as a member of the international community, has a compelling interest to protect children and to join in the concerted efforts in combating sexual abuse of children. We therefore propose to introduce legislative amendments to give extra-territorial effect to certain sexual offences under the Crimes Ordinance in respect of acts that relate to direct sexual exploitation of children, where the perpetrator or the victim has a nexus with Hong Kong.”", "zh-HK": "14.香港作為國際社會的一員，在保護兒童和聯手打擊性侵犯兒童方面，責無旁貸。因此，我們提議修訂法例，就《刑事罪行條例》中某些涉及直接利用兒童進行色情活動的行為的性罪行條文，在涉案罪犯或受害人與香港有關的情況下，訂定域外法律效力。」" } }, { "doc_id": 17, "seg_id": 122, "translation": { "en": "(3)United Nations Convention on the Rights of the Child", "zh-HK": "(3) 《聯合國兒童公約》" } }, { "doc_id": 17, "seg_id": 123, "translation": { "en": "Both parties agree that Article 34 of the United Nations Convention on the Rights of the Child applies to Hong Kong. The Article reads as follows:", "zh-HK": "雙方同意《聯合國兒童公約》第34條適用於香港，其內容如下：" } }, { "doc_id": 17, "seg_id": 124, "translation": { "en": "“Article 34", "zh-HK": "「第三十四條" } }, { "doc_id": 17, "seg_id": 125, "translation": { "en": "States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral, and multilateral measures to prevent:", "zh-HK": "締約國家承擔保護兒童免遭一切形式的色情剝削和性侵犯之害，為此目的，締約國就應採取一切適當的國家，雙邊和多邊措施，以防止：" } }, { "doc_id": 17, "seg_id": 126, "translation": { "en": "(A)The inducement or coercion of a child to engage in any unlawful sexual activity;", "zh-HK": "(A)引誘或強迫兒童從事任何非法的性生活；" } }, { "doc_id": 17, "seg_id": 127, "translation": { "en": "(B)The exploitative use of children in prostitution or other unlawful sexual practices;", "zh-HK": "(B)利用兒童賣淫或從事其他非法的性行為；" } }, { "doc_id": 17, "seg_id": 128, "translation": { "en": "(C)The exploitative use of children in pornographic performances and materials.”", "zh-HK": "(C)利用兒童進行淫褻表演和充當淫褻題材。」" } }, { "doc_id": 17, "seg_id": 129, "translation": { "en": "However, the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (“the Optional Protocol”) is still not applicable to Hong Kong.", "zh-HK": "但《〈兒童權利公約〉關於買賣兒童、兒童賣淫和兒童色情製品問題的任擇議定書》(《任擇議定書》)仍未適用於香港。" } }, { "doc_id": 17, "seg_id": 130, "translation": { "en": "(4)Equality and non-discrimination", "zh-HK": "(4) 平等無歧視權利" } }, { "doc_id": 17, "seg_id": 131, "translation": { "en": "Mr. Law, counsel for the applicant, argued that the Ordinance contravenes Article 25 of the Basic Law of Hong Kong, which guarantees that all Hong Kong residents shall be equal before the law, and violates the entitlement to rights without distinction and the right to protection against discrimination provided in Article 1(1) and Article 22 of the Hong Kong Bill of Rights of the Hong Kong Bill of Rights Ordinance, Cap. 383 Laws of Hong Kong.", "zh-HK": "代表申請人的羅達雄大律師指有關《條例》違反《香港基本法》第 25 條，即香港居民在法律面前一律平等，及違反《香港人權法案條例》(香港法例第 383 章)中的《香港人權法案》其中第 1(1) 條及第 22 條的平等、無歧視權利。" } }, { "doc_id": 17, "seg_id": 132, "translation": { "en": "Article 1(1):", "zh-HK": "第 1(1) 條:" } }, { "doc_id": 17, "seg_id": 133, "translation": { "en": "“The rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. [cf. International Covenant on Civil and Political Rights Art. 2]”; and", "zh-HK": "「人人得享受人權法案所確認之權利，無分種族、膚色、性別、語言、宗教、政見或其他主張、民族本源或社會階級、財產、出生或其他身分等等。[比照《公民權利和政治權利國際公約》第二條]」；及" } }, { "doc_id": 17, "seg_id": 134, "translation": { "en": "Article 22:", "zh-HK": "第 22 條:" } }, { "doc_id": 17, "seg_id": 135, "translation": { "en": "“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. [cf. International Covenant on Civil and Political Rights Art. 26]”", "zh-HK": "「人人在法律上一律平等，且應受法律平等保護，無所歧視。在此方面，法律應禁止任何歧視，並保證人人享受平等而有效之保護，以防因種族、膚色、性別、語言、宗教、政見或其他主張、民族本源或社會階級、財產、出生或其他身分而生之歧視。[比照《公民權利和政治權利國際公約》第二十六條] 」" } }, { "doc_id": 17, "seg_id": 136, "translation": { "en": "(5)Applicant’s argument", "zh-HK": "(5) 申請人的論點" } }, { "doc_id": 17, "seg_id": 137, "translation": { "en": "The applicant accepted that the Legislative Council of Hong Kong has the power to legislate to extend our jurisdiction to places outside Hong Kong. He complained that section 153P(1) of the Ordinance discriminates against him on account of his status as a Hong Kong permanent resident. He submitted that the status of a Hong Kong permanent resident and the status of a person who ordinarily resides in Hong Kong are covered by the phrases “other status” and “national origin” in Articles 1(1) and 22 of the Hong Kong Bill of Rights.", "zh-HK": "申請人接納香港立法會有權制定法律，把司法管轄權延展至香港境外。申請人指《條例》第153P(1) 條對他身為香港永久性居民之身分作出歧視。香港永久性居民身分或通常居於香港的人的身分是包含於《香港人權法案》第1(1) 條及第22 條所指的「其他身分及民族本源的身分」。" } }, { "doc_id": 17, "seg_id": 138, "translation": { "en": "The applicant also invoked section 3 and section 25 [sic] of the Registration of Persons Ordinance, Cap.177 Laws of Hong Kong. He said that a person’s status as a Hong Kong permanent resident or his status as a person who ordinarily resides in Hong Kong can be regarded as his immigration status or residential status and his national origin, and that this person’s status can be contrasted with the immigration status or residential status of another person who is present in Hong Kong but is neither a Hong Kong permanent resident nor a person who ordinarily resides in Hong Kong.", "zh-HK": "申請人亦引用《人事登記條例》(香港法例第177章)第3條及25條。他說香港永久性居民的身分或通常居於香港的人的身分，可被視為入境身分或居留身分及民族本源。這相對於另一名在香港境內，但不是香港永久性居民身分或不是通常居於香港的人的入境身分或居留身分。" } }, { "doc_id": 17, "seg_id": 139, "translation": { "en": "According to section 3 of the Registration of Persons Ordinance, every person in Hong Kong unless exempted is required to be registered and to apply for the issue of an identity card under that ordinance. Section 25 of that Ordinance [sic] stipulates that certain categories of people, so long as they retain the status and qualifications specified in that Ordinance [sic], are not required to register or apply for the issue of an identity card. Such people include travellers and persons who do not remain in Hong Kong for more than 180 days.", "zh-HK": "根據《人事登記條例》第3條，凡在香港境內的人除非獲得豁免，否則必須根據該條例登記及領取身分證。該條例的25條則指，某類人士若保持該條例列明的地位(status)及資格，則無須登記或申請領取身分證。該類人士包括旅客或只在香港逗留不超過180天的人。" } }, { "doc_id": 17, "seg_id": 140, "translation": { "en": "The last paragraph of Article 24 of the Basic Law provides that non-permanent residents of Hong Kong are “persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the Region but have no right of abode”.", "zh-HK": "《基本法》第24條最末一段訂明，香港非永久性居民為「有資格依照香港法律取得香港居民身分證，但沒有居留權的人。」" } }, { "doc_id": 17, "seg_id": 141, "translation": { "en": "The fundamental rights and duties of Hong Kong residents are governed by Chapter III of the Basic Law. Pursuant to Article 24 of the Basic Law, residents of Hong Kong include permanent residents and non-permanent residents. Article 41 of the Basic Law makes it clear that persons in Hong Kong other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in Chapter III.", "zh-HK": "《基本法》第3章是有關香港居民的基本權利和義務。根據《基本法》第24條，香港居民包括永久性居民和非永久性居民。《基本法》第41條說明，在香港境內的香港居民以外的其他人，依法享有本章規定的香港居民的權利和自由。" } }, { "doc_id": 17, "seg_id": 142, "translation": { "en": "The argument advanced by the applicant is that when a non-permanent resident or a person not ordinarily residing in Hong Kong commits the offences in question outside Hong Kong, he will not be punished under the laws of Hong Kong, but if a Hong Kong permanent resident or a person ordinarily residing in Hong Kong falls under the same situation, he will be punished under Hong Kong laws. This, according to him, is a violation of Article 25 of the Basic Law, because among residents of Hong Kong, permanent residents and Hong Kong residents ordinarily residing in Hong Kong, when compared with other residents in Hong Kong, are not equal before the law. He submitted that this also contravenes Article 1(1) of the Hong Kong Bill of Rights, because Hong Kong permanent residents and persons ordinarily residing in Hong Kong, due to their status, cannot enjoy the rights recognized in the Bill of Rights. He further submitted that this is also against Article 22 of the Hong Kong Bill of Rights, because Hong Kong permanent residents and persons ordinarily residing in Hong Kong suffer discrimination as a result of their status; and that they are not treated equally before the law and are denied equal protection of the law.", "zh-HK": "申請人指一名非永久性居民或一名非通常居於香港的人在香港以外干犯了有關的罪行是不會受香港法律制裁；但一名香港永久性居民或通常居於香港的人在同一情況下卻會受到香港法律制裁，這是違反了《基本法》第25條，原因是香港居民中的永久性居民及通常居於香港的香港居民，對比在香港境內的其他居民，在法律面前不是平等。這亦違反《香港人權法案》第 1(1) 條，因為香港永久性居民及通常居於香港的人，因為他們這個身分而不能享受人權法案所確認的權利。而且亦違反了《香港人權法案》第22條，因為香港永久性居民及通常居於香港的人因着這個身分遭受歧視，並且在法律上不是平等及沒有受法律平等保護。" } }, { "doc_id": 17, "seg_id": 143, "translation": { "en": "(6)The case of Yau Yuk Lung", "zh-HK": "(6) Yau Yuk Lung 案例" } }, { "doc_id": 17, "seg_id": 144, "translation": { "en": "In Secretary for Justice v. Yau Yuk Lung (2007) 10 HKCFAR 335 the Court of Final Appeal pointed out that equality before the law is a fundamental human right and is in essence the right not to be discriminated against (see paragraph 1 of the judgment). The Court of Final Appeal expounded the legal principle that all persons are equal before the law without discrimination as follows:", "zh-HK": "香港終審法院在Secretary for Justice v. Yau Yuk Lung (2007) 10 HKCFAR 335一案指出，法律之下人人平等乃是一項基本人權，它主要指不受歧視的權利(見：判案書第1段)。有關「人人平等，不受歧視」的法律原則。香港終審法院作出以下的闡釋：" } }, { "doc_id": 17, "seg_id": 145, "translation": { "en": "1)In general, the law should accord identical treatment to comparable situations.", "zh-HK": "1)一般來說，對於相似的情況，法律應給予相同的看待。" } }, { "doc_id": 17, "seg_id": 146, "translation": { "en": "2)However, the guarantee of equality before the law does not invariably require exact equality. Differences in treatment under the law may be justified for good reason. To satisfy the justification test, it must be shown that:", "zh-HK": "2)不過，「法律之下人人平等」並不一定要求完全相同的平等，假如有良好理由作為依據，法律可給予不同的對待。如要通過這個「有理可據」驗證標準，便必須證明：" } }, { "doc_id": 17, "seg_id": 147, "translation": { "en": "(a)The difference in treatment pursues a legitimate aim; in other words, a genuine need for such difference must be established;", "zh-HK": "(a)給予不同對待是為着達致合法目標，換言之必須證明有真正需要給予不同對待；" } }, { "doc_id": 17, "seg_id": 148, "translation": { "en": "(b)The difference in treatment is rationally connected to the legitimate aim; and", "zh-HK": "(b)該不同對待與該合法目標有着合理的關連；及" } }, { "doc_id": 17, "seg_id": 149, "translation": { "en": "(c)The difference in treatment is no more than is necessary to accomplish the legitimate aim.", "zh-HK": "(c)該不同對待並不超越達致該合法目標所必需的。" } }, { "doc_id": 17, "seg_id": 150, "translation": { "en": "3)Requirement (a) cannot be established from the mere act of legislative enactment (see paragraphs 19-21, 26-27).", "zh-HK": "3)立法行為本身不足以符合(a)的規定。(見第19至21、26至27段)" } }, { "doc_id": 17, "seg_id": 151, "translation": { "en": "4)Where the difference in treatment satisfies the justification test, the correct approach is to regard the difference in treatment as not constituting discrimination. Unlike some other constitutional rights, such as the right of peaceful assembly, it is not a question of an infringement of the right which may be constitutionally justified. (paragraph 22)", "zh-HK": "4)假如給予不同對待之舉通過「有理可據」驗證標準，則正確的做法是把該不同對待視為不構成歧視。這並不涉及侵犯權利的行為是否有憲法上的理由支持的問題，這情況有別於某些其他憲制權利，例如和平集會的權利。(第22段)" } }, { "doc_id": 17, "seg_id": 152, "translation": { "en": "(7)Respondent’s argument", "zh-HK": "(7) 答辯人的論點" } }, { "doc_id": 17, "seg_id": 153, "translation": { "en": "The respondent did not dispute the claim that a person’s status as a Hong Kong permanent resident or a person who ordinarily resides in Hong Kong can be regarded as his immigration status or his residential status and his national origin, but it disagreed that the applicant had been treated unequally or discriminated against.", "zh-HK": "答辯人對一名香港永久性居民身分或通常居於香港的人的身分被視為「入境身分」或「居留身分」及「民族本源」沒有異議。但答辯人不同意申請人受到不平等對待、歧視的說法。" } }, { "doc_id": 17, "seg_id": 154, "translation": { "en": "(8)Our View", "zh-HK": "(8) 本庭的意見" } }, { "doc_id": 17, "seg_id": 155, "translation": { "en": "(i)Legitimate aim", "zh-HK": "(i) 合法目標" } }, { "doc_id": 17, "seg_id": 156, "translation": { "en": "Section 153P(1) clearly draws a distinction between permanent residents and non-permanent residents, but the Court of Final Appeal had held that the giving of different treatments to different people might be justified for good reason. According to the criteria set by the Court of Final Appeal, the respondent was required to show that the difference in treatment pursues a legitimate aim.", "zh-HK": "明顯地第153P(1) 條對永久性居民及非永久性居民作出區別。但終審法院指出，假如有良好理由作為依據，法律可以對不同的人士給予不同的對待。根據終審法院提出的驗證標準，答辯人必須證明給予不同對待是為着達致合法目標。" } }, { "doc_id": 17, "seg_id": 157, "translation": { "en": "In our judgment, it is patently obvious that section 153P(1) pursues a legitimate aim. Even though the Optional Protocol is still not applicable to Hong Kong, in order to implement what is required under Article 34 of the United Nations Convention on the Rights of the Child, Hong Kong has an unshirkable duty to enact laws to protect children from sexual abuse. In Hong Kong there is no shortage of laws for combating activities involving sexual abuse of children within our territory, but such activities do not take place just within Hong Kong, they also take place outside Hong Kong. Sexual exploitation of children is known to have international dimensions. It is common knowledge that there are adults who travel from their home countries to other places, in particular developing countries or less-developed places, to engage in sexual activities involving children. It is therefore necessary to stipulate in the law that committing acts of sexual abuse against children outside Hong Kong is a criminal offence. The applicant cited the direction on the obligations of State Parties under Article 2 of the Convention on the Rights of the Child and submitted that it only requires the States Parties to enact laws to deal with sexual abuse against children within their own territories, but not laws with extra-territorial effect:", "zh-HK": "本庭認為153P(1) 條明顯是有合法目標，就算《任擇議定書》仍未在香港適用，但為了實踐《聯合國兒童公約》第34條的要求，香港制訂保護兒童免受到性侵犯的條例是責無旁貸的。雖然香港本身已經有充分的法例打擊在境內性侵犯兒童的行為，但由於這種行為不單只是會在境內發生，而且是會在境外進行。利用兒童進行色情活動可涉及跨國安排，成年人離開本國前往其他地方，特別是發展中國家落後地區參予涉及兒童的性活動亦是眾所周知的事情，故此法例是有必要將在境外性侵犯兒童的罪行視為刑事罪行。申請人引用《兒童權利公約》第2條「締約國的義務指示」，力陳這只是要求締約國制訂兒童在境內被性侵犯的法例而不是一些涉外法例：" } }, { "doc_id": 17, "seg_id": 158, "translation": { "en": "“States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”", "zh-HK": "「締約國應遵守本公約所載列的權利，並確保其管轄範圍內的每一兒童均享受此種權利，不因兒童或其父母或法定監護人的種族、膚色、性別、語言、宗教、政治或其他見解、民族、族裔或社會出身、財產、傷殘、出生或其他身份而有任何差別。」" } }, { "doc_id": 17, "seg_id": 159, "translation": { "en": "We consider that the applicant’s argument is a one-sided view. The use of the word “jurisdiction” in Article 2 does not mean that the duty of a State Party is limited to protecting children within its territory; on the contrary, the scope of its duty covers child abuse cases which happen outside its territory. Section 153P(1) is targeted at paedophiles who sexually abuse children outside Hong Kong. Its purpose is to prevent them from getting away unpunished by just returning to Hong Kong. This point was clearly brought out in the documents submitted to the Legislative Council and referred to above. In other words, there was a genuine need for enacting section 153P. In Canada, legislation similar to section 153P was enacted in accordance with the Convention on the Rights of the Child (See R v. Klassen 240 CCC (3d) 328).", "zh-HK": "本庭認為申請人的說法是以偏概全的論點。雖然第 2 條採用了「管轄範圍」的字眼，這並不是表示締約國的責任只限於保護境內兒童；反之，它是包括境外發生的性侵犯兒童事件。第153P(1) 條的目的是針對戀童癖好者在香港境外性侵犯兒童，防止他們藉返回香港境內而消遙法外。上述提交立法會的文件亦清晰地帶出這個目的。換句話說，制訂第 153P 條是有真正需要的。加拿大亦有根據《兒童權利公約》制訂類似 153P 條的法律(見：R v. Klassen 240 CCC (3d) 328)。" } }, { "doc_id": 17, "seg_id": 160, "translation": { "en": "(ii)Rational connection", "zh-HK": "(ii) 合理的關連" } }, { "doc_id": 17, "seg_id": 161, "translation": { "en": "One of the criteria for satisfying the test is that the difference in treatment must be rationally connected to the legitimate aim. We consider that the Ordinance also meets the requirement of rational connection. A law which extends the jurisdiction to places outside Hong Kong must be subject to limitations; otherwise, the Hong Kong authorities would prosecute any person who sexually abuse any children outside Hong Kong. Such kind of authority will be too wide.", "zh-HK": "根據認證標準，這不同待遇與該合法目標需要有「合理的關連」。本庭認為該條例亦符合「合理關連」的要求，延展司法權力至境外的法例必須是有一定的規限，否則這會令香港檢控任何在香港境外性侵犯兒童的人，這樣的權力會流於廣泛。" } }, { "doc_id": 17, "seg_id": 162, "translation": { "en": "The limitations are set out in section 153P(1). A person will be prosecuted only if one of the following two conditions is fulfilled :", "zh-HK": "有關的規限載於第153P(1) 條，一名人士只會在以下的兩種情況下被檢控：" } }, { "doc_id": 17, "seg_id": 163, "translation": { "en": "(1)He is a Hong Kong permanent resident or he ordinarily resides in Hong Kong (section 153P(1)); or", "zh-HK": "他是香港永久性居民或通常居於香港的人 (153P(1) 條)；或者是" } }, { "doc_id": 17, "seg_id": 164, "translation": { "en": "(2)The victim is a child who is a Hong Kong permanent resident or who ordinarily resides in Hong Kong (section 153P(2)).", "zh-HK": "受害者是香港永久性居民或通常居於香港的兒童(153P(2) 條)。" } }, { "doc_id": 17, "seg_id": 165, "translation": { "en": "These two conditions restrict the scope of the extra-territorial jurisdiction of Hong Kong, therefore the distinction with reference to the status of persons provided for in the Ordinance is rationally connected to the legitimate aim.", "zh-HK": "這兩項條件規限了香港涉外司法權力的範圍，故此條例對於身分的區分與合法目標是有着合理的關連。" } }, { "doc_id": 17, "seg_id": 166, "translation": { "en": "(iii)No more than is necessary to accomplish the legitimate aim", "zh-HK": "(iii) 不超越達致合法目標所必需的要求" } }, { "doc_id": 17, "seg_id": 167, "translation": { "en": "If a person who is not a Hong Kong permanent resident or who does not ordinarily reside in Hong Kong sexually abuses children in any place outside Hong Kong, he can be punished under the laws of that place; or if the laws of his own country contain provisions similar to section 153P, he may also be punished under the laws of his own country after he returned home. However, even if there are no similar provisions in the laws of this person’s country, it does not follow that a Hong Kong permanent resident or a person who ordinarily resides in Hong Kong suffers any discrimination. On the basis of the above reason, such differential treatment is no more than is necessary to accomplish the legitimate aim. We do not think that section 153P is in any sense discriminatory against a Hong Kong permanent resident or a person who ordinarily resides in Hong Kong.", "zh-HK": "若果非永久性香港居民或非通常在香港居住的被告人在香港境外性侵犯兒童，他們可被當地法例制裁，或者如果這些人士的本國法例具有與 153P 相同的條文，他們回國後亦可受到自己的國家法律制裁。但就算他們自己的國家沒有制訂相約的法例，這也不表示香港永久性居民或香港通常居住人士受到歧視。根據上述理據，這不同的對待並不超越達致該合法目標所必需的要求。本庭不認為第 153P 條存有歧視香港永久性居民或通常居於香港居民之處。" } }, { "doc_id": 17, "seg_id": 168, "translation": { "en": "(iv)Proportionality test", "zh-HK": "(iv) 恰當性測驗" } }, { "doc_id": 17, "seg_id": 169, "translation": { "en": "As a response to the 911 terrorist attacks, the U.K. government took a number of measures, including the enactment of the Anti-terrorism, Crime and Security Act 2001. Section 23 of the Act provided for the detention of non-British nationals who were suspected to be international terrorists. In A and others v Secretary of State for the Home Department [2005] 2 AC 68 the House of Lords declared that section 23 was incompatible with the prohibition against discrimination laid down in Article 14 of the European Convention on Human Rights (cf: Article 26 of the International Covenant on Civil and Political Rights). The House of Lords held that section 23 failed to pass the proportionality test. The criteria of that test are the same as those of the justification test propounded by the Court of Final Appeal. The House of Lords’ reasons were as follows:", "zh-HK": "英國政府因應 2001 年「911」恐佈襲擊事件採取了多項措施，包括制訂 Anti-terrorism, Crime and Security Act 2001 《2001 年反恐怖主義，罪行及安全條例》。該條例的第 23 條規定把懷疑是國際恐怖國際份子的非英國國民拘留。英國上議院法庭在 A and others v Secretary of State for the Home Department [2005] 2 AC 68 認為該規定違反《歐洲人權公約》第 14 條的「禁止歧視規定」(比照《公民權利和政治權利國際公約》第 26 條)。上議院認為該規定未能符合「恰當性測驗」(Proportionality Test)。這測驗與終審法院所提出的「有理可據」驗證標準相同。上議院所持的理由包括以下各點：" } }, { "doc_id": 17, "seg_id": 170, "translation": { "en": "(1)It was stipulated in section 23 that a non-British national suspected to be an international terrorist might be detained, but such treatment was not applicable to a British national suspected to be an international terrorist;", "zh-HK": "第 23 條規定把懷疑是國際恐怖國際份子的非英國國民拘留，而懷疑是國際恐怖份子的英國國民則不在此例；" } }, { "doc_id": 17, "seg_id": 171, "translation": { "en": "(2)It permitted non-national suspects to leave the U.K.;", "zh-HK": "它准許非國民的嫌疑份子離開英國；" } }, { "doc_id": 17, "seg_id": 172, "translation": { "en": "(3)It did not address the threat from U.K. nationals; and", "zh-HK": "它沒有考慮來自英國國民的恐嚇活動；及" } }, { "doc_id": 17, "seg_id": 173, "translation": { "en": "(4)It was capable of applying to individuals who did not present that threat.", "zh-HK": "它適用於沒有作出恐嚇行為的人士。" } }, { "doc_id": 17, "seg_id": 174, "translation": { "en": "For these reasons, the House of Lords held that section 23 did not rationally address the threat to security, that it was a disproportionate response and that it was not strictly required by the exigencies of the situation. The section was declared to be incompatible with Articles 5(1) and (14) [sic] of the European Law [sic] on Human Rights.", "zh-HK": "故此上議院認為該條文沒有理性地處理威脅安全的行為。該條文是一項不合比例的回應，而且也沒有絕對急切需要。上議院宣佈第 23 條不符合《歐洲人權法例》第 5(1) 及 (14) 條。" } }, { "doc_id": 17, "seg_id": 175, "translation": { "en": "In that case, the House of Lords also dealt with Article 5(1) of the European Law [sic] on Human Rights, which provides that “Everyone has the right to liberty and security of person” (cf: Article 5(1) of the Hong Kong Bill of Rights).", "zh-HK": "在該案，英國上議院亦處理《歐洲人權法例》第 5(1) 條，即「人人有權享有身體自由及人身安全的權利」(比照見：《香港人權法案》第 5(1) 條。)" } }, { "doc_id": 17, "seg_id": 176, "translation": { "en": "We do not think that this English case lends any support to the applicant’s arguments in this appeal. Whether the criteria of a particular test are satisfied must be decided on the basis of the contents of the legislation in question.", "zh-HK": "本庭不認為上述英國案例支持申請人在本上訴的論點。審核驗證標準必須根據法例的內容而作出。" } }, { "doc_id": 17, "seg_id": 177, "translation": { "en": "2)Ground of appeal 3: media reports and fair trial", "zh-HK": "2)上訴理由3：傳媒報道及公平審訊" } }, { "doc_id": 17, "seg_id": 178, "translation": { "en": "(1)Right to a fair trial", "zh-HK": "(1) 公平審訊權利" } }, { "doc_id": 17, "seg_id": 179, "translation": { "en": "The applicant complained that before and during the trial of this case there were massive coverage given by the media and vast amounts of discussion among the public, and that for this reason the right conferred on a defendant by Article 87 of the Basic Law and Article 10 of the Hong Kong Bill of Rights were encroached upon. Article 87 of the Basic Law provides that “… Anyone … shall have the right to a fair trial by the judicial organs …”, and Article 10 of the Hong Kong Bill of Rights provides that “… everyone shall be entitled to a fair…hearing by a … independent and impartial tribunal …”.", "zh-HK": "申請人說本案受到審訊之前及審訊當中大量傳媒報導及公眾討論的報導，這違反了《基本法》第87條及《香港人權法案》第10條賦予被告人的權利。《基本法》第87條訂明「任何人享有接受司法機關公正審判的權利」。《香港人權法案》第10條訂明「任何人應有權接受獨立無私之法庭公正審問」。" } }, { "doc_id": 17, "seg_id": 180, "translation": { "en": "(2)Directions given by D Pang J", "zh-HK": "(2) 彭法官的指引" } }, { "doc_id": 17, "seg_id": 181, "translation": { "en": "On 30 November 2010, during the trial of this case D Pang J was informed that this case was being reported by two local newspapers. After the jury retired, he discussed those reports with the prosecuting counsel and the defence counsel. At that time the applicant was represented by another counsel, who did not apply for a stay of the trial on the ground that the media reports had rendered the trial unfair. After discussing with counsel, D Pang J decided that he would give appropriate directions to the jury on those reports at the time when he should give directions to them. On 14 December 2010, when Pang J gave directions to the jury, he said the following:", "zh-HK": "2010年11月30日，當案件審訊時，彭法官獲知有兩份本地報章報導本案。彭法官在陪審團避席的情況下和控辯雙方律師討論有關報導。當時代表申請人的另一位大律師沒有以傳媒報導令審訊不公平為由要求中止審訊。彭法官與律師商討後決定在引導陪審團時會就有關報導作出適當的指引。彭法官在2010年12月14日引導陪審團時作出以下的指引：" } }, { "doc_id": 17, "seg_id": 182, "translation": { "en": "“At this stage I shall tell you what evidence consists of. In the present case, evidence includes the testimonies given in court by all the witnesses, that is, including the defendant himself and his witnesses; the facts over which there is no dispute between the parties and which have been read out to you; and all the documents, sketches, photographs and tangible objects which have been produced as exhibits. Well, I have particularized for you what evidence is composed of, because you must make your decisions only according to the evidence; that is to say, you must consider all the evidence. As for those matters which have not been covered by any evidence, you must not guess or speculate. This is very important, ladies and gentlemen. It is extremely rare that every part and every link of a case is covered by evidence. You must accept this limitation. You must not fill in the gaps with your speculations. If you have heard, seen or read anything relating to this case outside this courtroom, you should disregard it, particularly the information on the newspapers and the internet. These reports and their contents should be no different from what you have heard in court but, for various reasons, they may contain opinions given from a certain angle, a matter that even the people who made these reports may not be aware of that themselves; not to mention there may be things which have nothing to do with this case and have not been tested by counsel in court; so you should never take any notice of these things; take no notice of them. This evening, you should not surf the internet to search. Those you saw previously, forget about them. Don’t take any notice of them. …”", "zh-HK": "「呢度我要提一提大家，咩嘢係證據。就本案而言，佢包括所有證人，亦即係包括埋被告自己同佢嘅證人喇，喺庭上嘅證供、控辯雙方冇爭議，而又向你時讀出過嘅一啲事實、所有已經呈堂嘅文件、草圖、相片同實物。嗱，我將佢哋一一列舉番出嚟，係因為你哋斷案嗰時，只能夠以證據為依歸，亦即係話，你哋要考慮晒所有嘅證據，但係證據冇觸及嘅嘢，就唔可以去猜、唔可以去估，呢點係好重要嘅，各位。因為絕少案件，係每一個環節都有證據去講番嘅，你哋亦一定要接受呢個限制，千祈唔好用猜測去填補。如果你喺法庭以外聽到、睇到或者讀到任何與案有關嘅嘢，就更加唔應該理會，尤其係報章同網上嘅資料，佢哋嘅報導同埋內容，應該同你哋喺庭上聽到嘅冇分別，不過由於種種理由，可能會帶入咗某啲角度，係連執筆啲人都唔自覺嘅，就更加唔好講佢哋有啲咩嘢，係既與案件無關，又冇經過律師喺庭上嘅測試，所以絕對係唔可以理會嘅，唔好理嗰啲嘢，今晚更加唔應該上網去「抄」，之前睇過嘅，忘記佢，一啲都唔可以理會。…」" } }, { "doc_id": 17, "seg_id": 183, "translation": { "en": "(3)Applicant’s argument", "zh-HK": "(3) 申請人的論點" } }, { "doc_id": 17, "seg_id": 184, "translation": { "en": "The applicant said that there were huge amount of reports in the press about the case, that such reports were presented in both written text and pictures and a great majority of them were published on the internet. He submitted that notwithstanding D Pang J’s careful directions, the effects of those reports were that the prejudice formed in the jurors’ mind against the defendant could not be removed, nor could the risk that the prospect of a fair trial was adversely affected be eliminated.", "zh-HK": "申請人指報章的報導是鋪天蓋地的，而且圖文並茂，絕大部分刊載於互聯網。縱使彭法官作出小心的指引，但都不能消除陪審團對被告人存有偏見，及該些報導產生對公平審訊不利的影響的風險。" } }, { "doc_id": 17, "seg_id": 185, "translation": { "en": "(4)Legal principles", "zh-HK": "(4) 法律的原則" } }, { "doc_id": 17, "seg_id": 186, "translation": { "en": "In HKSAR v. Lee Ming Tee and another (2001) 4 HKCFAR 133, the Court of Final Appeal made the following comments about the legal principles applicable to questions about the effects of media reports on a trial:", "zh-HK": "終審法院在 HKSAR v. Lee Ming Tee and another (2001) 4 HKCFAR 133就傳媒報導影響審訊的法律原則作出以下的意見：" } }, { "doc_id": 17, "seg_id": 187, "translation": { "en": "1)In a society where the press is free it is inevitable that the reporting of crime will, in some sections of the media, be lurid and sensationalist, sometimes even at the risk of punishment for contempt. The more heinous or shocking a particular crime, the more it is likely to be given notoriety and to receive potentially prejudicial reporting. Jurors will therefore almost certainly have been exposed to some degree to such media coverage, prejudicial to the accused.", "zh-HK": "1)在享有新聞自由的社會中，當傳媒報導刑事罪行時，無可避免地有某些傳媒會作出渲染煽情的報導，有些甚至不惜藐視法庭甘冒受罰的危險。罪行愈是十惡不赦或令人震驚，惡名愈昭彰，報導便愈有潛在可能偏頗。陪審員差不多必然或多或少涉獵過這些對被告有損害的傳媒報導。" } }, { "doc_id": 17, "seg_id": 188, "translation": { "en": "2)Reliance on the integrity of the jury and its ability to try the case fairly on the evidence, to put aside extraneous prejudice and to follow the directions of the judge is fundamental to the jury system itself.", "zh-HK": "2)陪審團制度建基於法庭可依賴陪審團的公信力，依賴陪審團能根據證據公平審訊，能摒除與案件無關但有損害性的證據，並能跟從主審法官所給予的指示。" } }, { "doc_id": 17, "seg_id": 189, "translation": { "en": "3)There is good sense in regarding a jury, properly directed, as able to overcome prejudicial publicity in the vast majority of cases. First, with the passage of time, any recollection that a juror may have of adverse publicity can be expected to fade, lessening its prejudicial effect.", "zh-HK": "3)陪審團於大部分案件中，在法官正確的指示下，是能夠克服偏頗廣泛報導的影響，如此視之是明智之舉。首先，陪審員對不利廣泛報導的回憶估計隨着時間的消逝會日漸淡忘，損害性亦日減。" } }, { "doc_id": 17, "seg_id": 190, "translation": { "en": "4)Secondly, the jury may sensibly be credited with the ability to overcome any pre-trial prejudice because of the nature and atmosphere of the trial process itself. Whatever impression of the case members of the jury may have gained beforehand, at the trial, they are given direct, first-hand access to the actual evidence in the case, presented systematically and in detail, with live witnesses tested by cross-examination and exhibits tendered for inspection. They are addressed as to the significance of such evidence by counsel on both sides and guided by the impartial summing-up of the judge. Many jurors will already harbour a healthy scepticism about certain kinds of press reporting. They can be credited with the intelligence to realise that whatever may have been reported, they are far better placed at the trial to make up their own minds on the evidence, with the help of the judge’s direction.", "zh-HK": "4)其次，基於審訊程序本身的性質和環境，相信陪審團可以明理地有能力可克服審前的偏見影響。無論陪審員在審訊前對有關案件得到了些甚麼印象，在審訊時，他們都能直接第一手得到案中的真實證據；證據是有系統詳細地在法庭展示，證人親身出庭作證和接受盤問考驗；證物則呈堂接受驗證。還有，控辯雙方的大律師會就有關證據的重要性向陪審團作出陳詞，主審法官會指導他們給予不偏不倚的總結。對於某類的新聞報導，很多陪審員早已存有無傷大雅的疑問。相信陪審員是具有聰明智慧的，明白無論傳媒有甚麼報導，知道身處法庭在審訊中根據證據輔以法官的指示，作出個人結論，才是較佳做法。" } }, { "doc_id": 17, "seg_id": 191, "translation": { "en": "See pages 189 to 192B of the judgment of that case.", "zh-HK": "見該案第189頁至192頁B。" } }, { "doc_id": 17, "seg_id": 192, "translation": { "en": "The Privy Council held the same views in Montgomery v. H M Advocate (PC) [2003] 1 AC 641 at 673F-674G:", "zh-HK": "英國樞密院在Montgomery v. H M Advocate (PC) [2003] 1 AC 641在673頁F至674頁G亦持同一論點：" } }, { "doc_id": 17, "seg_id": 193, "translation": { "en": "“I am not persuaded that the judges in the court below were in error in their assessment of the effect of the publicity that has been given to this case and of the question whether, despite that publicity, the jury can be expected to act impartially. Recent research conducted for the New Zealand Law Commission suggests that the impact of pre-trial publicity and of prejudicial media coverage during the trial, even in high profile cases, is minimal: Young, Cameron & Tinsley, Juries in Criminal Trials: Part Two, vol I, ch 9, para 287 (New Zealand Law Commission preliminary paper no 37, November 1999). The lapse of time since the last exposure may increasingly be regarded, with each month that passes, in itself as some kind of a safeguard. Nevertheless the risk that the widespread, prolonged and prejudicial publicity that occurred in this case will have a residual effect on the minds of at least some members of the jury cannot be regarded as negligible. The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media. This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdict.”", "zh-HK": "「我認為下級法院的法官評估以下兩方面沒有犯錯：案件被廣泛報導所帶來的影響，以及儘管案件被廣泛報導但是否仍能預期陪審團不偏不倚。新西蘭法律委員會近日的研究建議，認為即使在傳媒高調報導的案件，審訊前的廣泛報導和審訊期間的偏頗傳媒披露只造成極輕微的影響:Young, Cameron & Tinsley, Juries in Criminal Trials: Part Two, vol I, ch 9, para 287 (新西蘭法律委員會初步文件第37號, 1999 年11 月)。由最後一次的傳媒報導接觸開始，隨時月過去，時間消逝本身便愈可視為某類保障。不過即使如此，案件長時間經廣泛不利報導，至少會在一些陪審員的腦海中有殘餘影響，這是不容忽視的。要法律審裁者保持客觀公正不阿，主要保障有賴審訊程序本身及主審法官對審訊的處理。一方面，陪審員聽取和思量證據時，須依循一定的規則行事。陪審團耳聞目睹證人的言行舉止，這在他們腦海中，較陪審團因傳媒報導案件而可能在心中遺下的殘留回憶，影響更為深刻。另一方面，由於主審法官在審訊過程中可以給予陪審團適當的警示和指示（尤其是主審法官在陪審團退庭商議前把審裁職能交付陪審團），估計更有助深刻影響。」" } }, { "doc_id": 17, "seg_id": 194, "translation": { "en": "The issue in that case was the defendants’ complaint that the extent of the media reports was such that it would be impossible for them to have a fair trial as required by Article 6.1 of the European Law [sic] on Human Rights. The Privy Council considered that it was only by having regard to all the circumstances that a decision on this issue could be made, and that the circumstances included the following three matters:", "zh-HK": "該案的議題是被告人認為傳媒的報導令他們未能根據《歐洲人權法》第 6.1 條獲得公平審訊。樞密院認為法庭必須考慮案件整體情況才可以作出裁決。相關的情況包括以下三個因素：" } }, { "doc_id": 17, "seg_id": 195, "translation": { "en": "1)the length of time since publication of the reports;", "zh-HK": "報導出現後所經過的時間；" } }, { "doc_id": 17, "seg_id": 196, "translation": { "en": "2)the focusing effect of listening to evidence over a prolonged period; and", "zh-HK": "長時間聽取證據的聚焦效應；及" } }, { "doc_id": 17, "seg_id": 197, "translation": { "en": "3)the likely effect of the directions by the trial judge.", "zh-HK": "主審法官作出指引可能產生的影響。" } }, { "doc_id": 17, "seg_id": 198, "translation": { "en": "The Privy Council held that under Article 6.1 of the European Convention on Human Rights the only issue to be addressed was the right of the defendant to a fair trial, and no assessment of the weight to be given to public interest (i.e. detection and suppression of crimes) came into the exercise, and that in this respect it might be said that the right conferred by the European Convention was superior to the common law right.", "zh-HK": "樞密院認為根據《歐洲人權公約》第 6.1 條，唯一要處理的問題是被告人享有公正審訊的權利。在這過程中，評估公眾利益（即偵查和遏止罪行）佔何等比重不在考慮之列。根據此論點或許可以說《歐洲人權公約》賦予的權利高於《普通法》賦予的權利。" } }, { "doc_id": 17, "seg_id": 199, "translation": { "en": "(5)Our View", "zh-HK": "(5) 本庭的意見" } }, { "doc_id": 17, "seg_id": 200, "translation": { "en": "In this appeal, the applicant asked this Court to receive fresh evidence consisting of newspaper reports and articles on the internet about this case. We refused to receive such fresh evidence. Such evidence had not been produced when the case was before D Pang J and D Pang J had directed the jury that they should not search for this kind of information on the internet and that they should forget about and take no notice of the information they read and saw previously. The foundation of the jury system is that the jurors are required to follow instructions given to them by the judge. Unless there is actual evidence that the jurors have not done what is required of them, the Court must make its decision on the basis that they have done so. The applicant’s allegation that the jurors might have searched for information in disregard of D Pang J’s direction is groundless. We reject his submission in this connection.", "zh-HK": "申請人在本上訴時要求本庭接納報章報導本案及互聯網上刊載本案的文章的新證供。本庭拒絕接納這些新證供。這些新證供並未在彭法官席前披露。彭法官亦已經指示陪審團不應該上網尋找這些資料及指示他們忘記及不要理會以前看過的資料。陪審團制度的基礎是陪審團是需要服從法官給他們的指導。除非有實際證據顯示陪審團沒有這樣做，否則法庭必須依從這個基礎作出裁決。申請人指陪審團可能不依從彭法官的指導搜查資料是沒有根據的。本庭不接納這一方面的陳述。" } }, { "doc_id": 17, "seg_id": 201, "translation": { "en": "Another complaint of the applicant is that D Pang J at first told the jury that they should disregard any information which they heard or read relating to this case outside the courtroom, but he added that such information and its contents should be no different from what they heard in court. The applicant submitted that such direction could confuse the jury as to what the evidence consisted of. In our view, what the applicant did was to quote D Pang J’s remarks out of context. When D Pang J’s directions are considered in their entire context; what he meant was that the jury should disregard those reports which had nothing to do with the case and had not been tested by counsel in court. We do not agree that the applicant was deprived of the right to a fair trial.", "zh-HK": "另外，申請人指彭法官首先要陪審團不要理會法庭以外聽到或讀到任何與案件有關的資料，但他又補充說有關資料與內容應該與陪審團在法庭上聽到的沒有分別。這樣的指引會導致陪審團對何為證據有所混淆。本庭認為申請人是斷章取義。縱觀彭法官指引的上文下理，他的意思是要陪審團不要理會與案件無關、沒有經過律師在法庭測試的報導。本庭不認同申請人被剝奪公平審訊的權利。" } }, { "doc_id": 17, "seg_id": 202, "translation": { "en": "3)Ground of appeal 4", "zh-HK": "3) 上訴理由4" } }, { "doc_id": 17, "seg_id": 203, "translation": { "en": "(1)Specimen charges/uncharged acts", "zh-HK": "(1) 樣本控罪/不被控告的行為" } }, { "doc_id": 17, "seg_id": 204, "translation": { "en": "The applicant’s fourth ground of appeal actually covers two areas:", "zh-HK": "申請人的第 4 項上訴理據其實包括兩點：" } }, { "doc_id": 17, "seg_id": 205, "translation": { "en": "1)The 5th count and the 6th count were specimen charges. To put the defendant under trial for these two counts was unfair to the defendant, rendering the convictions therefor unsafe; and", "zh-HK": "第 5 及第 6 條控罪是「樣本控罪」(Specimen Charges)。這兩項控罪的審訊對被告人做成不公，致使有關定罪不穩妥；及" } }, { "doc_id": 17, "seg_id": 206, "translation": { "en": "2)D Pang J erred in admitting evidence concerning uncharged acts, in that the prejudicial effect against the defendant produced by such evidence outweighed its probative effect.", "zh-HK": "彭法官錯誤地接納「不被控告的行為」(uncharged act)的證供，因為這些證供對申請人的不利影響超越證供的舉證力量。" } }, { "doc_id": 17, "seg_id": 207, "translation": { "en": "The basis of these two arguments is in fact the same. The applicant submitted that in the course of giving directions to the jury D Pang J had reminded the jury that X had said that in the Centre, which was the place where the sexual intercourse referred to in the 5th count took place, the applicant had had sexual intercourse with her over 10 times, and that the occasion referred to in the 6th count was not the only one on which images of the applicant exposing his private parts, even masturbating himself and ejaculating were shown through the webcam.", "zh-HK": "這兩項理據的基礎其實都是一樣。申請人指彭法官在引導陪審團時曾經說過X指稱在該中心，即控罪 5 指稱發生性交的地方，申請人與她發生性行為次數超過十次，而申請人在視頻展示下體，甚至自瀆、射精等的情況亦不單止是第 6 條控罪所指的一次。" } }, { "doc_id": 17, "seg_id": 208, "translation": { "en": "(2)Legal principle", "zh-HK": "(2) 法律原則" } }, { "doc_id": 17, "seg_id": 209, "translation": { "en": "(1)In Chim Hon Man v. HKSAR (1999) 2 HKCFAR 145 the Court of Final Appeal held that the prosecution could not make use of specimen charges, because there is a general principle that in the absence of any act or acts being identified as the subject of an offence charged in an indictment, the prosecution cannot lead evidence that is equally capable of referring to a number of occasions, anyone of which might constitute an offence described in the charge and invite the jury to convict on any one of them.", "zh-HK": "(1)終審法院在Chim Hon Man v. HKSAR (1999) 2 HKCFAR 145 裁決控方不能引用「樣本控罪」，原因是根據一般原則，如不能確定某一項或多項作為是公訴書中所指控的罪行，控方不能帶領出多次作為的證供，而其中任何一次是可以構成所指控罪行的，然後促請陪審團根據其中一次而將被告人定罪。" } }, { "doc_id": 17, "seg_id": 210, "translation": { "en": "(2)The Court of Final Appeal pointed out that this principle serves the same general purposes as the rule against duplicity. Knowledge of the particular act, matter or thing which is the foundation of the charge is important in enabling the accused to ascertain and prove what, if any, defence, for example, an alibi, he may have to the offence charged and to subject a complainant’s evidence to searching scrutiny by reference to the surrounding circumstances. An accused person may be subjected to unfairness and embarrassment if he is called upon to meet a charge of one offence based upon evidence of the commission of multiple offences, more particularly if the evidence is such that it does not enable each such offence to be clearly differentiated from the others. The degree of unfairness or embarrassment may vary according to the circumstances. If the prosecution case is based on evidence of many offences in an extended period of time the unfairness may be considerable.", "zh-HK": "(2)終審法庭指這項原則跟「禁止控罪包含多項罪行」(Rule against duplicity) 的原則所要達到的一般目的是相同的。被告人知道構成控罪基礎的特定行為、事情或事物是很重要的，這樣可令他能夠明確知道被控的罪行，確定可以提出甚麼證據來抗辯，例如，不在場證據；這樣被告人才能夠根據週遭的情況對申訴人所提出的證據，進行細緻詳盡的盤問。如果被告人要面對的是一項罪行，但該罪行卻是建基於多項罪行的證據，他可能因此感到審訊不公平和為難；特別是如果控方證據不能清楚把多項控罪逐一分辨出來。不公平或為難的程度有多大，則視乎情況而有所不同。假如控方的案情論據是以在一段延伸的時間內發生的多項罪行的證據為基礎，不公平的情況可以很嚴重。" } }, { "doc_id": 17, "seg_id": 211, "translation": { "en": "his principle was applied by this Court in the following three cases:", "zh-HK": "上訴法庭在以下三宗案件引用上述原則：" } }, { "doc_id": 17, "seg_id": 212, "translation": { "en": "1)HKSAR v Chu Chi Wah (No. 2) [2010] 4 HKLRD 715;", "zh-HK": "HKSAR v. Chu Chi Wah (No. 2) [2010] 4 HKLRD 715；" } }, { "doc_id": 17, "seg_id": 213, "translation": { "en": "2)HKSAR v Kwok Hing Tony [2010] 3 HKLRD 761; and", "zh-HK": "香港特別行政區訴郭慶 [2010] 3 HKLRD 761；及" } }, { "doc_id": 17, "seg_id": 214, "translation": { "en": "3)HKSAR v Chu Chi Wah (No. 1) [2010] 4 HKLRD 675.", "zh-HK": "香港特別行政區訴朱志華(No. 1) [2010] 4 HKLRD 675。" } }, { "doc_id": 17, "seg_id": 215, "translation": { "en": "(3)Our View", "zh-HK": "(3) 本庭的意見" } }, { "doc_id": 17, "seg_id": 216, "translation": { "en": "The three counts of unlawful sexual intercourse with a girl under the age of 16 years involving X took place in three different places. The 1st count took place in Fo Xin Hostel; the 3rd count in the Bulangshan Nong Mao Market Reception House and the 5th count in the Centre. In addition, the 6th count, namely indecent conduct, which involved X, also took place in the Centre.", "zh-HK": "涉及X的 3 項「與年齡在 16 歲以下的女童非法性交」罪在三個地點發生。第 1 項控罪是「佛馨旅舍」。第 3 項控罪是「布朗山農貿市場招待所」。第 5 項控罪是該中心。另外，涉及X的「猥褻行為」的第 6 項控罪亦是在該中心發生。" } }, { "doc_id": 17, "seg_id": 217, "translation": { "en": "In our view, the overall conduct of the trial shows that the prosecution did not rely on specimen charges to establish their case against the applicant. Before the trial began, D Pang J had already discussed with the prosecution and the defence how to handle specimen charges and uncharged acts.", "zh-HK": "本庭認為綜觀案情，控方並沒有依賴「樣本控罪」檢控申請人。彭法官在審訊前已經與控辯雙方討論如何處理「樣本控罪」及不被控告的行為。" } }, { "doc_id": 17, "seg_id": 218, "translation": { "en": "The prosecution’s opening submission concerning the 5th count and the 6th count was as follows:", "zh-HK": "就第 5、6 項控罪，控方開案陳詞的簡述是如下：" } }, { "doc_id": 17, "seg_id": 219, "translation": { "en": "“(4)The 5th and the 6th counts", "zh-HK": "「(4) 第五、六項控罪" } }, { "doc_id": 17, "seg_id": 220, "translation": { "en": "The 5th count is about an act of sexual intercourse between the defendant and X in the Centre. In fact, after X was raped by the defendant in Fo Xin Hostel, the defendant had sexual intercourse with X many times in the defendant’s room in the Centre. Between 2006 and 2008 the defendant went to the Centre from Hong Kong several times every year (in February, April/May, August and November respectively) to inspect. When he performed such acts, X did not resist because, having been molested so many times, she became used to it. Apart from that, the defendant gave her some presents, including MP3 player[s], T shirts and a bankcard under the defendant’s name, which enabled her to withdraw money from the bank.", "zh-HK": "第五項控罪是有關被告人和“X”在「該中心」內發生的性行為。事實上自從“X”被被告人在佛馨旅舍強姦之後被告人和“X”在「該中心」被告人的房間內發生過很多次性行為。被告人於2006年至2008年期間每年有數次(分別於2月，4/5月，8月，11月)從香港前往「該中心」視察。進行這些行為時“X”沒有反抗，因為她已經被侵犯多次所以習慣了。此外，被告人亦把一些禮物送給“X”，包括MP3機，T-恤和一張被告人名下的銀行咭以使“X”可以從銀行取錢。" } }, { "doc_id": 17, "seg_id": 221, "translation": { "en": "The 5th count occurred during the second term of X’s primary 6 school year (between 1 January 2007 and 31 July 2007). At that time the weather was rather cold. One day, around 0130 in the small hours, X was playing with the computer in the defendant’s room. The defendant entered the room and locked the door. Then he told X to sleep with him. X wanted to leave but the defendant did not agree. At his insistence, finally X had sexual intercourse with him in the room. The defendant did not wear a condom and he ejaculated on X’s thigh.", "zh-HK": "第五項控罪發生於當“X”就讀小學六年級的下學期(2007年1月1日至2007年7月31日)。當時天氣還是比較冷。在晚上凌晨約01 30時“X”在被告人的房內玩電腦。被告人入房之後把門鎖上和叫“X”陪他睡。“X”想離開但是被告人不願意。在被告堅持下最後“X”和被告人在房內發生了性行為。被告人沒有戴避孕套和在“X”的大腿上射精。" } }, { "doc_id": 17, "seg_id": 222, "translation": { "en": "The 6th count (between 1 January 2007 and 31 August 2007) was about what happened in the defendant’s room in the Centre [one day] between the second term of X’s primary 5 school year and the first term of her primary 6 school year. On that day, the defendant was in Hong Kong. He had given X the key to the door of his room so that she could use his room, including the computer in the room. At the material time X, Y and Wang Zhilan (PW8) were together playing with the computer in the defendant’s room. After they finished playing, Wang Zhilan and Y went to sleep first. At about 1 a.m. Wang Zhilan and Y woke up and saw X and the defendant chatting through the internet. The defendant, through the webcam, instructed X to take off her clothes and he himself also took off his clothes, exposed his private parts and masturbated himself.", "zh-HK": "至於第六項控罪(2007年1月1日至2007年8月31日)是有關於“X”讀小五下學期至小六上學期時在「該中心」被告人的房間內發生的事。當時被告人身在香港。他把自己房間的鎖匙給了“X”以後她可以使用被告的房間包括房內的電腦。當時“X”，“Y”和王志蘭(PW8)一起在被告的房內玩電腦。之後王志蘭和“Y”先睡。在凌晨約1時王志蘭和“Y” 醒來見到“X”和被告人在進行網上聊天。通過電腦上的攝像鏡頭被告人指示“X”脫去衣服，而被告人自己亦脫去衣服展示下體和進行自瀆。" } }, { "doc_id": 17, "seg_id": 223, "translation": { "en": "On 7 April 2009 X was interviewed by Hong Kong police officers and she made complaints about what the defendant had done.”", "zh-HK": "“X”於2009年4月7日被香港警方接見和對被告人的行為作出投訴。」" } }, { "doc_id": 17, "seg_id": 224, "translation": { "en": "Although the prosecution mentioned that the applicant and X had had sexual intercourse many times in the Centre, they did not tell the jury that they could find the applicant guilty if they were sure that he had engaged in any one of those acts of intercourse. The evidence adduced by the prosecution in respect of the 5th and the 6th counts was not imprecise and general, but was as clear and specific as the content of their opening submission.", "zh-HK": "雖然控方提交申請人與X在該中心發生過多次性行為，但控方並沒有向陪審團說如果他們能肯定申請人有干犯其中一次的行為，便可將申請人定罪。控方就第 5 及第 6 項控罪所提出的證供，並不是籠統廣泛，而是如控方開案陳詞的內容明確及具體的。" } }, { "doc_id": 17, "seg_id": 225, "translation": { "en": "Furthermore, D Pang J told the jury that X had specific recollection about the guilty acts referred to in the 5th count, and that at the occurrence of the 6th count other people were present. The directions he gave to the jury were as follows:", "zh-HK": "另外，彭法官亦向陪審團指出X就第 5 項控罪所指的犯罪行為有特別記憶，而第 6 項控罪發生時是有其他人在場的。彭法官向陪審團作出的指引如下：" } }, { "doc_id": 17, "seg_id": 226, "translation": { "en": "“In the morning of the third day, all of them left Bulangshan. As far as X could remember, the time at which the Bulangshan incident happened should be earlier than what happened at Da Luo Town, because Da Luo Town was the place where she and the defendant had sexual intercourse for the last time. Alright, besides the incidents happened at Fo Xin Hostel, Bulangshan and Da Luo Town, did any other things happen? The answer is that something did happen in the Children Home, but she can’t remember how many times there were, nor could she remember the circumstances in which the first time happened. However, there is one occasion about which she has the clearest recollection: She went to the defendant’s room and there she played with the computer for a long while until one o’clock in the small hours. The defendant entered the room after washing his face and brushing his teeth. He locked the door and told her not to leave and asked her to stay and sleep with him. X said she wanted to play a while longer, using that as an excuse for not doing what he said, but the defendant simply switched off the computer. At last, X gave in to the defendant’s persuasion. She stayed in the room and lay on the bed with the defendant, who kissed her mouth to mouth, caressed her, removed her clothes and made love to her, proceeding in the same position as usual, that is, the defendant on top of her. Finally, he finished by ejaculating on her thigh. Then it was wiped with paper and [they] cleaned [themselves] in toilet. After that, they slept together in the room until daybreak. In the course of doing this, the defendant, again, did not say anything.", "zh-HK": "「去到第三日早上，佢哋一干人等就離開布朗山，根據X記憶，布朗山事件，喺時間上應該早於打洛鎮，因為打洛鎮係佢同被告最後一次有性行為嘅地方。好喇，除咗佛馨旅舍、布朗山、打洛鎮嗰幾次之外，仲有冇其他嘅嘢嘅呢？ 答案係喺兒童之家裡面係有嘅，次數唔記得，第一次係點發生亦唔記得，不過最記得有一次佢去被告間房玩電腦玩咗好耐，直至凌晨成點，被告喺洗面、刷牙之後入嚟鎖門，叫佢唔好走，留低陪佢瞓，X推搪，話要玩耐一啲，被告就索性連電腦都閂埋，終於經過一輪說服之後，X就留咗落嚟同被告喺床上親嘴、愛撫、寬衣、性交，姿勢同往常一樣，男上女下，最後由被告喺X大髀上面射精完結，跟住用紙抹過，去廁所洗過之後，就一齊喺房嗰度就瞓到天光，期間被告又係冇講過乜嘢。" } }, { "doc_id": 17, "seg_id": 227, "translation": { "en": "X said she can’t remember among all the incidents which happened in the Children Home which time the above incident was according to chronological order. She said whenever the defendant came to the Children Home he would stay there for one week and she would sleep with him on two or three nights. As to when did [they] happen, she could just describe it in a general way. It should be primary 6. In respect of this incident, she said it was during the second term. At that time the weather was a bit cold. X said that in the Centre when the defendant did not use a condom, he would ejaculate outside her body, like what happened on this occasion. She said she treated this incident in the same way as she treated all other incidents, that is, she had never told anyone about this sexual intercourse. The foregoing is about the 5th count.", "zh-HK": "X話呢一次係院內第幾次佢已經唔記得，反正被告每次返嚟都會逗留一星期，而佢就會陪佢瞓兩、三晚。日期方面都係，佢只能夠籠統咁講，應該係六年級，今次有講下學期，當時嘅天氣仲有少少冷。X話，喺「該中心」入面被告如果唔用避孕套嘅話，就會將精液射到佢體外，就好似今次咁，佢話同其他所有事件一樣，佢從來都冇將呢一次嘅性行為話過畀任何人聽，以上就係控罪五。" } }, { "doc_id": 17, "seg_id": 228, "translation": { "en": "Lastly, X said that besides having sexual intercourse with her, there were occasions on which the applicant told her to strip herself when he was having video chats with her on line. The defendant had also exposed his private parts to X and even masturbated himself, leading to ejaculation. This happened two or three times in total. On one occasion, other people were present. How did it happen? In the Centre, only the defendant’s room was equipped with a computer. When he was in Hong Kong and wanted to call the people of the Centre together for a meeting, he would telephone to the Centre to ask them to switch on the computer so that he could talk with them. Further, X had a key to [the door of] the applicant’s room, so she could often enter the room to play; and if she didn’t want to be alone, she could ask her friends to come to accompany her. In these circumstances, one night during the first term of X’s primary 6 school year, when Wang Zhilan was sleeping and when X was chatting with the defendant through the internet, what described above took place, but it is not clear whether Wang Zhilan had really fallen asleep. This is the 6th count.”", "zh-HK": "最後，X話除咗性交之外，被告曾經喺網上用視頻同佢傾偈嗰時叫佢除衫，反之被告亦試過向X展示下體，甚至自瀆、射精，呢啲情況一共試過兩、三次，有次仲有他人在場，即係點呢? 原來「該中心」就只有被告間房有電腦，如果佢喺香港，但係又想召集「該中心」嘅人開會，就會打電話過嚟叫佢哋開電腦，進行對話。仲有，被告間房X其實係有鎖匙嘅，可以經常入去玩，而且唔想一個人嘅話，就叫朋友陪。就係咁，喺六年班上學期嘅某一晚，當王志蘭瞓著咗，而X繼續同被告喺網上傾偈嗰時，就發生咗上述嗰種情況喇，不過王志蘭係咪真係瞓著咗呢，就唔知喇，呢個就係控罪六。」" } }, { "doc_id": 17, "seg_id": 229, "translation": { "en": "D Pang J asked the jury to pay attention to X’s evidence:", "zh-HK": "彭法官亦提醒陪審團有關X的證供:" } }, { "doc_id": 17, "seg_id": 230, "translation": { "en": "“As regards the incident about having sexual intercourse in the defendant’s room, actually she had mixed things up. 1 mean the truth is that it was the defendant who was continuously playing with the computer. After that, he made her stay overnight there. Why did this incident leave such a deep impression in X’s mind? X said there was no special reason. She said she could remember it and that’s why she remembered it.”", "zh-HK": "「至於喺被告房內性交嗰次，其實係佢倒轉咗，意思係被告不斷喺度玩電腦至啱，然後先將佢留低過夜。至於呢次X點解印象咁深刻呢？ X就話冇原因，記得就記得。」" } }, { "doc_id": 17, "seg_id": 231, "translation": { "en": "The Da Luo Town incident referred to in the directions above was the subject matter of a charge of which the applicant was acquitted.", "zh-HK": "上述指引所提及的打洛鎮事件是涉及一項申請人被判無罪的控罪。" } }, { "doc_id": 17, "seg_id": 232, "translation": { "en": "D Pang J also gave detailed directions to the jury in relation to the uncharged acts:", "zh-HK": "彭法官更就「不被控告的行為」向陪審團作出詳細的指引：" } }, { "doc_id": 17, "seg_id": 233, "translation": { "en": "“The 5th point, you will remember that the six counts which involve X are only so-called specimens. Why is it? It is because X claimed that she had had sexual intercourse with the defendant as many as 10 to 20 times in total, at least more than 10 times; and that the occasion mentioned in the 6th count was not the only occasion on which he exposed his body through the webcam, right? In addition, there were the bath-taking incidents which some people said they saw that but X denied, right? Well, in that case, you must be careful. First of all, the acts which have not been included in the charges in the indictment have no evidential value at all unless, unless what, unless you are sure that they did happen. Secondly, even if you are sure that they did happen, these acts can only be used to explain one thing, and the thing is why is it that within the period of time involved in this case, X did not resist sexual contacts with the defendant and she even became used to them. Furthermore, this is the third point, you should never simply rely on this kind of evidence and then come to the conclusion that the defendant did commit offences of a similar nature, or the conclusion that the defendant is the sort of person who will commit the offences which he is charged with in the present case. Moreover, this is the 4th point, you should never simply rely on this kind of evidence and then stop thinking and just casually find the defendant guilty of the charges in the indictment. On the contrary, you should carefully consider each count one by one. What I have said is about what the uncharged acts can be used for and what they cannot be used for. You must not have any confusion about this, alright?”", "zh-HK": "「第五點，大家會記得有關X嘅六條控罪，都只係所謂樣本嚟嘅啫，點解呢? 因為X聲稱，佢同被告性交嘅總次數係十至二十次咁多，起碼超過十次喇，視頻露體亦唔只控罪六嗰次嘅，係咪? 仲有人哋話見到而X又否認嘅沖涼事件呢，係咪? 好喇，就係咁，大家就要小心喇。首先，嗰啲冇被列入公訴書去告被告嘅行為，係完全冇舉證價值嘅，除非咩嘢呢? 除非你肯定佢哋曾經發生過；第二，就算你肯定佢哋確曾發生，呢啲行為亦只能被用作解釋一樣嘢，呢樣嘢就係X點解會喺本案所涉及嘅時段內，對被告嘅性接觸不再抗拒，甚至係習慣晒；相反，亦即係第三點，你哋絕唔可以因為有呢方面嘅證據，而認定被告有干犯同類嘅罪行，又或者係會干犯本案控罪嘅嗰類人；同樣，即係第四點喇，你絕唔可以因為有呢方面嘅證據，就懶得諗，求其裁定被告公訴書裡面有嘅罪名成立，相反，你係要逐項逐項咁認真考慮。以上就係嗰啲未被檢控嘅行為嘅用處同非用處，兩者絕對不能混淆，得唔得？」" } }, { "doc_id": 17, "seg_id": 234, "translation": { "en": "Mr. Law relied on the comments made by the Court of Final Appeal in Chim Hon Man on page 165: The trial judge did not instruct the jury to the effect that the absence of particularity with respect to the individual incidents alleged to have occurred so long ago made it difficult for the defendant to be convicted of [sic] the charges. The giving of this direction is an important element in ensuring fairness to the defendant in cases involving charges concerning acts that occurred long time ago, especially where there is little particularity. Mr. Law argued that in the present case D Pang J did not give any direction similar to the above direction. We do not agree with this argument, because D Pang J did give the jury directions along these lines:", "zh-HK": "羅大律師引用終審法庭在Chim Hon Man 第 165 頁的說法：原審法官在給予陪審團指引中沒有說明如果就所指稱發生在很久以前的個別事件沒有詳盡細節的話，很難將被告人定罪。這項指引對於很久以前發生，尤其沒有細節的控罪是重要的，以確保對被告公平。羅大律師指彭法官在本案沒有作出相約的指引。本庭不同意這說法，因為彭法官在引導陪審團時已經作出相約的指引：" } }, { "doc_id": 17, "seg_id": 235, "translation": { "en": "“Firstly,our experience tells us that for various reasons, sometimes the victims of some criminal cases really made false accusations; and, it may be easy to make false accusations but to refute them is difficult; and this applies to any defendant no matter how innocent he is.", "zh-HK": "「第一，經驗話畀我哋聽，由於種種理由，刑事案件嘅事主有時的確係誣告嘅；仲有，誣告嘅嘢可能好易提出，不過反駁就好難，呢個無論有幾清白都係咁嘅；" } }, { "doc_id": 17, "seg_id": 236, "translation": { "en": "Secondly,in the final analysis, it cannot be denied that X, Y and Wang Zhilan were of tender age, especially during the early period. Is there any possibility that they could not tell right from wrong, and for some reasons they said something irresponsibly, resulting in Ms. Shum making a report to the police, and the matter then went out of control? You have to consider this.", "zh-HK": "第二，講到尾，X、Y同王志蘭始終年輕，尤其係最初嗰時，咁佢地會唔會唔識分輕重，因乜理由亂講咗啲嘢出嚟令岑女士報警，一發不可收拾，大家都要考慮；" } }, { "doc_id": 17, "seg_id": 237, "translation": { "en": "Thirdly,every offence in this case was allegedly committed three years or more than three years ago. You must take into account the disadvantages which the defendant may suffer as a result of this fact; for example, would he forget something which could have been in his favour? Another example: If these incidents had not happened so long ago, could he have been able to prove that he was not present at the scene? When you consider these factors, you should put yourself in his position in order to see whether it would affect your verdict.”", "zh-HK": "第三，本案嘅控罪全部都有三幾年歷史咁耐，所以你哋一定要考慮埋呢個事實對被告所產生嘅可能不利，例如佢會唔會唔記得某啲嘢，而呢啲嘢有可能對佢有利嘅呢，又例如如果時間冇隔得咁耐嘅話，佢會唔會可以證明自己不在場呢? 凡此種種，你哋都要設身處地去諗一諗，睇下會唔會影響到你哋嘅裁決。」" } }, { "doc_id": 17, "seg_id": 238, "translation": { "en": "We do not think that the applicant has put forward sufficient grounds for appealing against the convictions in respect of the 5th count or the 6th count.", "zh-HK": "本庭不認為申請人就第 5 項及第 6 項控罪的定罪提出充分的上訴理據。" } }, { "doc_id": 17, "seg_id": 239, "translation": { "en": "4)Ground of appeal 5", "zh-HK": "4) 上訴理由5" } }, { "doc_id": 17, "seg_id": 240, "translation": { "en": "(1)Elements of the charge of unlawful sexual intercourse", "zh-HK": "(1) 非法性交的犯罪要素" } }, { "doc_id": 17, "seg_id": 241, "translation": { "en": "The applicant submitted that the jury was not entitled to find him guilty of the 1st count. His reason was that X gave evidence that he did not penetrate into her private parts or that she was not sure whether he did penetrate into her private parts, therefore based on such evidence the jury could not possibly be sure that he did penetrate into her private parts.", "zh-HK": "申請人認為陪審團不可以裁定他干犯控罪1，原因是X的證供是申請人沒有插入她的下體，或者她不清楚申請人有沒有插入她的下體，故此陪審團在這證據基礎上是不能肯定申請人有插入X的下體。" } }, { "doc_id": 17, "seg_id": 242, "translation": { "en": "(2)D Pang J’s directions", "zh-HK": "(2) 彭法官的指引" } }, { "doc_id": 17, "seg_id": 243, "translation": { "en": "As to the question of whether the applicant did penetrate into X’s vagina, D Pang J carefully recapitulated X’s evidence to the jury:", "zh-HK": "關於申請人是否有插入X的陰道，彭法官詳細地向陪審團複述X的證供：" } }, { "doc_id": 17, "seg_id": 244, "translation": { "en": "“Evidence-in-chief of X", "zh-HK": "「X主問" } }, { "doc_id": 17, "seg_id": 245, "translation": { "en": "...... To put it simply, X said that the defendant removed her clothes by force, that is to say, her outer garments and her two pants — the outer pants and the underpants were pulled down and away from her body. She resisted and told the defendant to go away, but her strength was weaker than the defendant’s. As for the defendant himself, he did not take off his upper garments. He just pressed one of his hands on X and removed his trousers with the other hand. Then he inserted his penis into X’s private parts. However, that was X’s first time, so (I quote) it was very tight and it could not get into her; but X immediately added this: The defendant should have been successful in getting into her body, and after that he moved his body up and down, which caused her great pain. X went on to say that upon entry into her body, the defendant kissed her and put his hand underneath her bra and fondled her breasts. To sum up: X said that the defendant at that time did not wear any condom. However, she was not able to tell how deep into her body he entered or how long the whole process lasted. It was a little longer than one minute but less than two minutes. Furthermore, X said that she did not see how the applicant’s body moved at the moment of his entry into her body. However, when the defendant finished, withdrew and wiped that part of the body with paper — she saw this part of the process. At that moment, the defendant told her not to tell anyone about this. .....”", "zh-HK": "……簡單嚟講，X就係話被告係強行將佢嘅衣服脫去嘅，即係面衫同內外兩條褲一齊咁  扌盟    咗落嚟，佢反抗，叫被告走開，但係就唔夠被告大力。至於被告自己就更加係連衫都冇除嘅，只係一隻手壓住X，一隻手除褲，然後攞自己嘅下體插入X嘅下體。不過，由於嗰次係X嘅第一次，所以(我引述)好緊，插唔入。然而X隨即又補充，被告應該係成功咁進入咗佢嘅身體嘅，之後仲上上下下咁搖，令佢好痛。X繼續話，被告喺進入咗佢體內嗰時ロ錫 過佢，又用手伸過入佢胸圍下面摸佢胸部。總括而言，X話被告當時冇戴避孕套，不過進入咗佢身體有幾深，整個行為又維持咗幾耐，佢就講唔到，大概係一分鐘多啲，兩分鐘唔夠。此外，X又話見唔到被告進入佢身體時嘅動作，不過被告完事，抽身出嚟攞紙去抹個部分佢又見到。當時被告仲叫X唔好向人透露有呢件事。….." } }, { "doc_id": 17, "seg_id": 246, "translation": { "en": "X under cross-examination", "zh-HK": "X盤問" } }, { "doc_id": 17, "seg_id": 247, "translation": { "en": "Following that, it was the Fo Xin Hostel incident. According to X, before it happened, she did not expect that such thing would happen; but when the defendant began to remove her clothes, she did not put up much of a resistance, so not all what she said in the video recording is true. However, there’s one thing and that is when the defendant was about to penetrate into her, she tried to push him away. Why? Because, after all, it was her first time, so she felt great pain; and for that reason the duration of that intercourse was very short; at most it was one to two minutes. On this basis, the defence asked her, “You said you were not willing. The only reason for your saying so was that you felt pain, but not because you resisted the defendant making love to you, right?” X’s answer was: “I don’t know.” The defence asked her another question: “Finally the defendant stopped. Was it because you felt pain?” X said, “Should be so, I’m not sure.” The final remark of the defence was: “The defendant could not penetrate into your body, and that’s because you felt pain.” X said, “I agree, that should be so.” As for the contraceptive pill which later appeared, X confirmed that the defendant did not force her to take it. He just gave it to her. X knew that it was a contraceptive pill because the defendant told her that it was. …..", "zh-HK": "跟住係佛馨旅舍事件，X話事發前佢唔預計到會有咁嘅事發生，不過被告動手去除佢啲衣衫嗰陣時候，佢又冇乜反抗，所以錄影帶裡面講嘅並非全部係事實。只不過咩嘢呢？ 被告要插入嚟喇，X就試過去推佢，點解呀，因為畢竟係第一次，所以好痛，亦因為咁，佢哋性交嘅時間其實好短，最多只係一、兩分鐘，如果係咁，辯方就問喇，『妳所謂唔願意原因只係痛，而唔係抗拒同被告同妳有性行為，係咪呢？』咁，X就答『我唔知。』辯方再問『被告最後停止咗，係咪因為妳痛呢？』X就話『應該係，我唔清楚。』最後辯方話『被告係插唔到入去嘅，因為妳痛？』X就話『同意，應該係。』至於後來嗰粒避孕丸X亦都確認唔係被告逼佢食嘅，被告只係攞嚟畀佢嘅啫，X知道係避孕丸，就因為被告話嘅。….." } }, { "doc_id": 17, "seg_id": 248, "translation": { "en": "Re-examination of X", "zh-HK": "X覆問" } }, { "doc_id": 17, "seg_id": 249, "translation": { "en": "…… As regards the Fo Xin Hostel incident, X further clarified her evidence by saying that before the defendant stopped his actions he did try to get into her body slowly, and that in the course of doing so he might have so-called shaken his body. It’s for this reason that she gave similar description in the video recording. However, the thing which X had the clearest recollection was pain. As to whether the defendant did penetrate into her, she could not give a clear answer.”", "zh-HK": "……至於佛馨旅舍嗰次，X喺進一步澄清嗰時話，被告喺停止佢嘅行為之前有試過慢慢進入佢身體，期間亦可能試過喺度所謂搖，亦因為咁，佢先喺錄影帶度有類似嘅描述。不過，X最清楚嘅就只係知道痛，被告究竟有冇插過入去，佢就說不清楚喇。」" } }, { "doc_id": 17, "seg_id": 250, "translation": { "en": "D Pang J also gave directions to the jury about the alternative count for the 1st count, i.e. attempted unlawful sexual intercourse:", "zh-HK": "彭法官亦有就第一項控罪的交替控罪即企圖非法性交向陪審團作出指引：" } }, { "doc_id": 17, "seg_id": 251, "translation": { "en": "“Lastly and finally, please pay attention to this. The 1st count of this case is treated in a special way. You have heard what the prosecution said, that is, if you are sure that X’s evidence is true, that is to say, you are sure that she and the defendant had sexual contacts in Fo Xin Hostel; but because X felt pain, you are not sure whether the defendant’s penis did enter into her vagina; you are not sure whether there was even the slightest degree of entry. Then, after finding the defendant not guilty of the charge of having unlawful sexual intercourse with a girl under 16, you have to go on to consider whether he was guilty of the alternative count: attempting to have unlawful sexual intercourse with a girl under 16, although it is not written on the indictment. To attempt means that at the time in question the defendant intended to have sexual intercourse with X and with that intention in his mind he did something, and what he did was more than mere preparation for having the sexual intercourse. The only thing he had not done was to complete the sexual intercourse. If you are sure that this was what happened at that time, you can find the defendant guilty of attempting to have unlawful sexual intercourse with a girl under 16. Let me give you an example: if the defendant did insert his penis into X’s private parts, it may be regarded as an act more than mere preparation for the sexual intercourse, even though X pushed him away because she felt pain. If he repeatedly tried to do that, it would be even more likely that he had fulfilled the condition. It is for you to decide whether that was what happened. You think about it yourselves.", "zh-HK": "「最後最後請大家注意，本案嘅控罪一仲係有啲竅妙嘅，你哋都聽過控方講過喇，就係如果你肯定X講嘅係真話，即係肯定佢有同被告喺佛馨旅舍有性接觸，但係就因為X痛，而唔肯定被告嘅陰莖有進入過X嘅陰道入面，連最輕微嘅進入都唔肯定，咁你哋喺裁定被告與年齡在16歲以下的女童非法性交罪不成立之餘，就要再考慮佢係咪企圖與年齡在16歲以下嘅女童非法性交嘅交替罪名成立。雖然公訴書冇寫。「企圖」嘅意思就係話被告當時意圖同X性交，而又懷住呢個意圖做咗某啲嘢，而呢啲嘢又超乎咗只屬於準備去性交嘅行為，只係冇完成呢個性交啫。如果你肯定當時嘅情況係咁嘅話，你哋就可以裁定被告企圖與年齡在16歲以下嘅女童非法性交罪成立。舉個例，如果被告有將自己嘅陰莖插向X嘅下體，或者都算超乎咗僅屬於準備性交嘅行為喇，雖然因為X痛呢，畀佢推開咗。如果佢試完又試就更加係咁喇。個情況係咪咁，你哋自己決定，係自己去諗。」" } }, { "doc_id": 17, "seg_id": 252, "translation": { "en": "Finally, the jury unanimously found the defendant guilty of the 1st count.", "zh-HK": "陪審團最終一致裁定申請人第一項罪名成立。" } }, { "doc_id": 17, "seg_id": 253, "translation": { "en": "(3)Our View", "zh-HK": "(3) 本庭的意見" } }, { "doc_id": 17, "seg_id": 254, "translation": { "en": "We consider that the jury’s verdict shows that they believed that the applicant did penetrate into X’s vagina. This was a finding of fact made by the jury. They personally heard X’s evidence and saw her demeanour when she was giving evidence. Although on the face of it some parts of her evidence was inconsistent with other parts, she maintained that the applicant’s actions of assaulting her private parts made her feel pain. In our judgment, the jury was entitled to find that the applicant’s penis did penetrate into X’s vagina on the basis of her evidence.", "zh-HK": "本庭認為陪審團的裁決反映他們認為申請人是有插入X的陰道。這是一項陪審團對事實的裁決。他們親自聆聽X的證供及觀察她作證時的神態。雖然X所給予的答案表面上是前後不符，但X堅持申請人侵犯她下體的動作令她感覺痛楚。本庭認為陪審團是可以根據X的證供裁定申請人的陽具確實曾插入她的陰道。" } }, { "doc_id": 17, "seg_id": 255, "translation": { "en": "The applicant submitted that according to The Sexual Offenses Act 2003 of the U.K., vagina includes vulva, but that there is no similar definition under the laws of Hong Kong, and that therefore even if the applicant succeeded in penetrating into the vulva, that did not constitute sexual intercourse. We do not accept this argument. The fact that under the laws of U.K., vagina is defined as including vulva does not mean that under the existing laws of Hong Kong, the penetration of the penis of a male person into the vulva of a female person is not sexual intercourse. In Hong Kong, the law is that “intercourse shall be deemed complete upon proof of penetration by the penis only”. (Archbold Hong Kong 2012 paragraph 21-2). According to the 25th edition of Stedman’s Medical Dictionary, the definition of vagina is “the genital canal in the female, extending from the uterus to the vulva”. As pointed out on page 467 of Smith & Hogan Criminal Law (10th edition), to prove sexual intercourse, the slightest penetration will suffice. In the case of vaginal intercourse any penetration of the female genitalia is enough at common law. It is not necessary for the prosecution to prove that the vagina in its proper anatomical sense is penetrated.", "zh-HK": "申請人指，根據英國的The Sexual Offences Act 2003《2003 年性罪行條例》「陰道」的定義包括為「外陰」，但香港的法例並沒有相同的定義，故此就算申請人有插入X的外陰，這也不構成性交。本庭不同意這論點。雖然在英國的法例下，陰道的定義包括外陰，這不表示根據現時香港法律，男性的陽具插入女性的外陰不構成性交。香港的法律是「單憑證明陽具插入即當作完成交合」(Archbold Hong Kong 2012 第 21-2 段)。根據 Stedman’s Medical Dictionary 第 25 版，「陰道」的定義是「由子宮引延至外陰的生殖器管道」(the genital canal in the female, extending from the uterus to the vulva)。正如Smith & Hogan Criminal Law (第 10 版)第 467 頁說：最輕微的插入已經足夠構成性交。根據普通法，任何程度地插入女性生殖器官已經足夠構成陰道交合，控方是無須證明已插入符合解剖學定義的陰道。" } }, { "doc_id": 17, "seg_id": 256, "translation": { "en": "5)Ground of appeal 1", "zh-HK": "5) 上訴理由1" } }, { "doc_id": 17, "seg_id": 257, "translation": { "en": "(1)Y's age", "zh-HK": "(1) Y的年歲" } }, { "doc_id": 17, "seg_id": 258, "translation": { "en": "The time period relevant to the 7th court, which involves Y, was between 1 August 2005 and 31 July 2007. Calculation made on this basis showed that Y was less than 16 years old during the period in which she was sexually assaulted by the applicant. Subsequent to that, D Pang J gave the following directions to the jury:", "zh-HK": "涉及Y 的第 7 項控罪的時間是 2005 年 8 月 1 日至 2007 年 7 月 31 日。根據這樣推算，Y 被申請人性侵犯的時段是不足 16 歲。彭法官接着對陪審團作出以下的指引：" } }, { "doc_id": 17, "seg_id": 259, "translation": { "en": "“The above-mentioned view, this view of the prosecution, basically the defence do not object to it. However, there is one point, and that is Y said that Wang Zhilan was one grade more senior than she and X, and Wang Zhilan said that she herself was promoted to primary 6 after the Chinese New Year holidays in 2006. If calculation is made on the basis of that year, then the second term of Y’s primary 6 school year, that’s the time when she was allegedly indecently assaulted, at the latest it could be December 2007 or even January 2008. That means she was over 16. Why? Let me remind you. The forensic pathologist, who is an expert on matters about teeth, had made some calculations. According to his calculations, Y could have reached 16 by 6 October 2007. You have to take this point into account. But, however, assuming that she had reached 16, what does it matter? As I said before, the constituting element of indecent assault is that the victim does not consent to her being assaulted or touched. This is so unless the victim is younger than 16. Therefore, since Y herself said that she was not willing to be touched by the defendant — she did say so, didn’t she — it seems that whether she was 16 or not is not a problem. The only problem is whether you believe what she said. ……", "zh-HK": "「以上的諗法，控方呢個諗法，辯方基本上冇反對，只不過咩嘢呢? 就係Y講過，王志蘭高班過佢同X一年，而王志蘭又講過，自己喺06年春節假後升上小六。如果根據呢個年份去計嘅話，咁Y小六下學期，據稱被非禮嗰陣時，最遲就可以去到07年12月，甚至係08年1月嘅，亦即係超過咗16歲。點解? 提番大家，因為牙齒法證專家嘅推算，根據佢嘅推算，Y喺07年10月6日就可能足16歲喇嘛，呢點大家係要考慮嘅。不過，不過，足16歲又點呢? 正如我指出過，猥褻侵犯嘅構成，係要受害人不同意被侵犯或者觸摸吖嘛，除非受害人細過16歲喇，所以Y既然話自己唔願意畀被告摸，佢係咁講過吖嘛，係咪? 咁佢係咪16歲，似乎都唔係問題喇，問題只係你信唔信Y講嘅嘢啫。……" } }, { "doc_id": 17, "seg_id": 260, "translation": { "en": "…… Miss Y reiterated that this incident occurred during the second term of her primary 6 school year. She remembered that because during that period, she thought of leaving the Centre, the Children Home. However, when the defence asked her further questions, she said that actually she could not remember clearly matters about time. What she was sure about was that Wang Zhilan was one grade more senior than she and when Wang Zhilan went up to the next grade in school, that was when she went up to the next grade in school; so if Wang Zhilan was promoted to primary 6 after the Chinese New Year holidays in 2006, she would at the same time be promoted to primary 5.”", "zh-HK": "…….Y小姐重申，呢次事件發生於佢小六下學期，佢記得係因為嗰段時間諗過要離開「該中心」兒童之家。不過，喺辯方再問落去之下，佢又話時間嘅嘢佢其實已經唔係記得咁清楚。佢肯定嘅係王志蘭比佢高一班，而且王志蘭幾時升班，佢幾時升班，所以如果王志蘭係06年春節假後升小六嘅，佢就同時升小五。」" } }, { "doc_id": 17, "seg_id": 261, "translation": { "en": "(2)Applicant’s argument", "zh-HK": "(2) 申請人的論點" } }, { "doc_id": 17, "seg_id": 262, "translation": { "en": "The applicant submitted that in respect of the 7th count, D Pang J erred in giving directions to the jury to the effect that whether Y had reached 16 was not a matter they needed to consider.", "zh-HK": "申請人認為彭法官在第 7 項控罪錯誤地引導陪審團說Y是否足 16 歲是不需要考慮的問題。" } }, { "doc_id": 17, "seg_id": 263, "translation": { "en": "(3)Our View", "zh-HK": "(3) 本庭的意見" } }, { "doc_id": 17, "seg_id": 264, "translation": { "en": "According to section 153P(1)(b)(ii) of the Ordinance, the offence in question should be committed in relation to a person under the age of 16. We therefore agree that D Pang J’s direction to the jury to the effect that whether Y was 16 or not had nothing to do with the offence was a wrong direction. However, we do not think this would affect the soundness of the conviction.", "zh-HK": "根據《條例》第 153P(1)(b)(ii) 條，有關的罪行是就未滿 16 歲的人而作出的，故此本庭同意彭法官對陪審團說Y是否足 16 歲與控罪無關是一項錯誤的引導。但本庭不認為這會影響定罪的穩妥性。" } }, { "doc_id": 17, "seg_id": 265, "translation": { "en": "The agreed facts stated that the forensic pathologist, who is an expert on matters about teeth, examined Y on 6 April 2009 and the result was that he confirmed that her age, i.e. Y’s age at the day of examination was 17 years old, subject to an adjustment of six months, plus or minus. That means as at 6 April 2009, the oldest possible age of Y was 17½ years old.", "zh-HK": "根據獲雙方承認的事實，牙齒法證專家在 2009 年 4 月 6 日檢驗 Y，得出的結論確認她的年齡是Y在檢驗當日的年紀是 17 歲加減 6 個月，即在 2009 年 4 月 6 日Y的年紀最高是 17 歲半。" } }, { "doc_id": 17, "seg_id": 266, "translation": { "en": "Y gave evidence that she was born on 20 April 1992, which was not challenged by the defence counsel, and this date is compatible with the opinion given by the teeth expert. In our judgment, even though D Pang J gave erroneous direction as to a point of law, the jury was entitled to accept the evidence given by Y herself but not the evidence given by Wang Zhilan in order to come to their conclusion that when Y was indecently assaulted by the applicant she was under the age of 16 years.", "zh-HK": "Y的證供是她在 1992 年 4 月 20 日出生。辯方律師沒有反對這證供。這個日期亦是與牙齒法證專家的意見相約的。本庭認為就算彭法官就法律觀點作出錯誤的指引，陪審團是有權接納 Y本人的證供而不是“王 志 蘭”的證供來裁定她被申請人性侵犯時是在 16 歲以下。" } }, { "doc_id": 17, "seg_id": 267, "translation": { "en": "Conclusion of the application for leave to appeal against conviction", "zh-HK": "定罪申請的總結" } }, { "doc_id": 17, "seg_id": 268, "translation": { "en": "For the above reasons, we dismiss the application for leave to appeal against conviction.", "zh-HK": "基於上述原因，本庭駁回針對定罪的申請。" } }, { "doc_id": 17, "seg_id": 269, "translation": { "en": "Application for leave to appeal against sentence", "zh-HK": "刑期申請" } }, { "doc_id": 17, "seg_id": 270, "translation": { "en": "1)Applicant’s arguments", "zh-HK": "1) 申請人的論點" } }, { "doc_id": 17, "seg_id": 271, "translation": { "en": "The applicant complained that the starting points used by D Pang J for the individual counts were manifestly excessive, that his order that one year of each of the sentences for the 3rd, the 5th, the 6th and the 7th counts was to run consecutively to the other sentences was too severe, and that insufficient consideration was given to the totality principle or the principle that where an offender is to serve multiple sentences for multiple offences, the overall sentence should not be excessive. Moreover, he submitted that D Pang J erred in rejecting all the mitigating factors, particularly the factor that the applicant was a person with a positively good character. At the time of the sentencing, the applicant was 49 years old. He received education up to tertiary level and was a social worker by occupation. He was enthusiastic about voluntary work and had provided his services to various institutions. In his spare time he set up and ran the organization involved in this case. The applicant considered that his having sexual intercourse with X was not illegal on the Mainland, because X at least was 14 years old and she consented to the sexual intercourse.", "zh-HK": "申請人認為就各項控罪彭法官採用的量刑基準是明顯過高，而且他把控罪第 3、5、6、7 的刑期依次各有 1 年分期執行是明顯過高，沒有充分利用整體量刑或數罪定罰不能過重之原則。另外，彭法官錯誤否定所有求情因素，尤其申請人是一名有正面品格的人。申請人在判刑時 49 歲，接受教育至大專程度，以社工為職業。他熱衷於義務工作，參與過不同機構服務，在工餘時設立及籌辦涉案的中心。申請人認為在國內他與X發生性交是不違法的，因為X至少有 14 歲，而且是同意性交的。" } }, { "doc_id": 17, "seg_id": 272, "translation": { "en": "2)Our View", "zh-HK": "2) 本庭的意見" } }, { "doc_id": 17, "seg_id": 273, "translation": { "en": "We are of the view that the applicant failed to adduce admissible evidence in relation to applicable PRC laws either at the trial or during the appeal. In HKSAR v Tsang Chiu Tak, CACC 386/2011, this Court gave the following guidelines about the sentencing principle for cases involving sexual assaults on children by adults:", "zh-HK": "本庭認為申請人未能就國內適用的法律在原審或上訴時提供可令法庭接納的證據。本庭在香港特別行政區與曾昭德CACC 386/2011 一案就成年人性侵犯兒童案件的量刑原則作出以下的指示：" } }, { "doc_id": 17, "seg_id": 274, "translation": { "en": "“The Sentencing Principle", "zh-HK": "「量刑原則" } }, { "doc_id": 17, "seg_id": 275, "translation": { "en": "The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.", "zh-HK": "上訴法庭在多宗近期的案件中重申法庭必須保護無辜及容易信賴別人的兒童，避免這些易受傷害的人士被人性侵犯，以致身體及精神受到創傷。在涉及性侵犯兒童的案件中法庭有需要採用具阻嚇性的刑期來防止其他人士干犯這類罪行。這些具阻嚇性的刑期是表達公眾對這些罪行的厭惡及為受害者及其家人伸冤。" } }, { "doc_id": 17, "seg_id": 276, "translation": { "en": "The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:", "zh-HK": "上訴法庭指出法庭在處理性侵犯兒童罪行時就量刑所需要考慮的因素包括：" } }, { "doc_id": 17, "seg_id": 277, "translation": { "en": "The age difference between the defendant and the victim;", "zh-HK": "被告人與受害人的年紀差異；" } }, { "doc_id": 17, "seg_id": 278, "translation": { "en": "The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;", "zh-HK": "被告人與受害人的關係。被告人是否利用自己的地位干犯罪行及案件是否存在破壞信任的成份；" } }, { "doc_id": 17, "seg_id": 279, "translation": { "en": "Whether the defendant had used threats or inducements to make the victim succumb;", "zh-HK": "被告人有否利用恐嚇、利誘的手段來令受害人就範；" } }, { "doc_id": 17, "seg_id": 280, "translation": { "en": "The number of occasions of committing the offences and the duration of the offences;", "zh-HK": "犯罪的次數及時間；" } }, { "doc_id": 17, "seg_id": 281, "translation": { "en": "Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;", "zh-HK": "被告人有否使用不適當及不必要的暴力來令受害人受傷、不適；" } }, { "doc_id": 17, "seg_id": 282, "translation": { "en": "Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;", "zh-HK": "被告人在性侵犯受害人時有否採用安全措施來防止傳染性病給受害人或令受害人受孕；" } }, { "doc_id": 17, "seg_id": 283, "translation": { "en": "Whether the sexual abuses have caused physical or psychological trauma to the victim;", "zh-HK": "受害人是否因被性侵犯而受到肉體或精神的創傷；" } }, { "doc_id": 17, "seg_id": 284, "translation": { "en": "Whether the offences have impact on the family members of the victim;", "zh-HK": "有關的罪行有否影響受害人的家庭；" } }, { "doc_id": 17, "seg_id": 285, "translation": { "en": "Whether the defendant was involved in other inappropriate behaviour such as inviting other people to watch or take photos or videos of the offence he committed; and", "zh-HK": "被告人有否同時涉及其他不當的行為，例如邀請其他人士觀看其罪行或拍攝或錄影；" } }, { "doc_id": 17, "seg_id": 286, "translation": { "en": "Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.", "zh-HK": "被告人是否精神不正常及患有戀童癖及其重犯的機會率。" } }, { "doc_id": 17, "seg_id": 287, "translation": { "en": "See HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, HKSAR v Lee Hon Wah [2011] 4 HKLRD 319, HKSAR V Ng Ka Kin (CACC 328/2010) and HKSAR v Lee Kwok Wai (CACC 199/2011).”", "zh-HK": "見：HKSAR v. Chow Yuen Fai [2010] 1 HKC 181, HKSAR v. Lee Hon Wah [2011] 4 HKLRD 319, 香港特別行政區對吳家健Ng Ka Kin (CACC 328/2010) 及HKSAR v. Lee Kwok Wai 李國偉(CACC 199/2011)。」" } }, { "doc_id": 17, "seg_id": 288, "translation": { "en": "D Pang J considered that the crimes committed by the applicant were extremely serious, and he enumerated the following factors:", "zh-HK": "彭法官認為申請人所犯的罪行極為嚴重，他列出以下各點：" } }, { "doc_id": 17, "seg_id": 289, "translation": { "en": "(1)There was a huge age difference between he and either X or Y.", "zh-HK": "(1)他和X及Y的年齡差距極大；" } }, { "doc_id": 17, "seg_id": 290, "translation": { "en": "(2)X, in particular, was of very tender age.", "zh-HK": "(2)單就X而言，她的年齡偏小；" } }, { "doc_id": 17, "seg_id": 291, "translation": { "en": "(3)In the relation between the applicant and the two girl victims, there obviously was no love and affection in the sense of the love and affection between a girl and her boyfriend. As far as X is concerned, perhaps she was well disposed towards him and was grateful to him. However, the applicant had a wife and his daughters, who live permanently in Hong Kong. He assumed the status of sworn father in the Centre. The first sexual intercourse between X and the applicant was not something which X expected to happen and it could even be said that it happened as a result of her falling into a trap set by the applicant. It was definitely not the outcome of love and affection between a man and a girl. Moreover, X was not the only victim in the present case or in the Centre.", "zh-HK": "(3)申請人和兩名受害女童的關係明顯不涉及男女之間的感情元素，以X為例，X可能對申請人有好感、有謝意，不過申請人有妻女長住香港，他以「乾爹」在該中心自居，X又在意料之外、甚至是墮入申請人的圈套的情況下和他發生第一次關係是明顯不出於男女之間的愛意，更何況X並不是本案或者該中心裡面唯一的受害人；" } }, { "doc_id": 17, "seg_id": 292, "translation": { "en": "(4)On the occasions when he committed the offences he did not wear a condom.", "zh-HK": "(4)申請人幾次犯案時都是沒有戴上安全套;" } }, { "doc_id": 17, "seg_id": 293, "translation": { "en": "(5)On some occasions he committed the offences in the presence of other children. This showed that he had reached the stage that he had absolutely no scruples about acting in the way he did.", "zh-HK": "(5)申請人有幾次犯案時都有其他院童在場，證明他已經去到事無忌彈的地步；" } }, { "doc_id": 17, "seg_id": 294, "translation": { "en": "(6)The purpose of setting up a children’s home must be to take care of the children, so that they can grow up in a safe environment; but what the applicant did was exactly the opposite. In the case of X, the offences were committed over a rather long period of time; it was more than one year. It is one of the most serious examples of breach of trust.", "zh-HK": "(6)任何人開設兒童院，目的當然是護幼，讓她們在安全的環境下成長，不過申請人卻反其道而行之，而且就X而言，有關罪行發生在一段較長的時間內，超過一年，是違反信任情況最嚴重的類別之一；" } }, { "doc_id": 17, "seg_id": 295, "translation": { "en": "(7)Although X said in court that the goods and commodities she obtained from the applicant had nothing to do with the sexual relationship between she and he, the evidence showed that the benefits she received from the applicant were more than those received by others; for example, she had a bank card; she could freely go into the applicant’s room by using a duplicate key to play with the computer; and even her elder sister and her mother received financial assistance from the applicant. All these could prove that the applicant intended to exchange these benefits for X’s cooperation. That means what he had been doing was to corrupt the mind of the victim by material benefits.", "zh-HK": "(7)雖然 X 在庭上聲稱，接受申請人的物質供應，與她跟申請人的性關係無關，不過從種種的證據顯示，X 從申請人身上得到的好處要比別人多，例如她有銀行卡，可以自行以配好的鎖匙進入申請人房間玩電腦，又或者連她的姐姐和媽媽都得到申請人金錢上資助等等。這些都能證明申請人有換取X合作的意圖，亦即是以利益去荼毒受害人的心智;" } }, { "doc_id": 17, "seg_id": 296, "translation": { "en": "(8)By committing the offences on the other side of the border the applicant damaged the reputation of charitable organizations set up by Hong Kong people on the Mainland. Those affected were not confined to individual persons or a particular organization.", "zh-HK": "(8)申請人跨境犯案，令香港人在內地建立的慈善事業的聲譽受損，影響不單只於個別人士或者機構。" } }, { "doc_id": 17, "seg_id": 297, "translation": { "en": "Besides, the psychologist commented that the applicant was deeply affected by a sense of inferiority and that this resulted in his strong desire to manipulate others. He said the applicant had no insight into his problems and was remorseless for what he had done in this case. His risk of re-offending was estimated to be moderate to high. This was a cause for concern. However, D Pang J stated that this was not where his attention was focused on, but that in the report nothing in favour of the applicant could be found.", "zh-HK": "另外，心理學家亦指出申請人自卑心重，反而變得操縱慾強，而且缺乏自省，對本案毫無悔意，所以再犯的機會是中至高度，令人關注。但彭法官說明這不是他的著眼點。只是報告內容並沒有絲毫對申請人有利的地方。" } }, { "doc_id": 17, "seg_id": 298, "translation": { "en": "In our view, D Pang J had sufficiently considered the circumstances of this case. We find that the starting points for the individual counts and the overall sentence are all appropriate and nothing is manifestly excessive.", "zh-HK": "本庭認為彭法官充分考慮了案件的情況。本庭認為無論個別量刑基準或整體刑期都是適當的，沒有明顯過重。" } }, { "doc_id": 17, "seg_id": 299, "translation": { "en": "Conclusion of the application for leave to appeal against sentence", "zh-HK": "刑期申請總結" } }, { "doc_id": 17, "seg_id": 300, "translation": { "en": "For the above reasons, we dismiss the application.", "zh-HK": "基於上述原因，本庭駁回申請。" } }, { "doc_id": 17, "seg_id": 301, "translation": { "en": "Mr. Lawrence Law, instructed by Messrs. Littlewoods, assigned by the Legal Aid Department, for the Applicant.", "zh-HK": "答辯人：由律政司高級檢控官劉少儀代表。" } }, { "doc_id": 17, "seg_id": 302, "translation": { "en": "Ms. Virginia Lau, Senior Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "申請人：由法律援助署委派聶柏仁律師行轉聘羅達雄大律師代表。" } }, { "doc_id": 18, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the Reasons for Judgment of the Court):", "zh-HK": "高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 18, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 18, "seg_id": 3, "translation": { "en": "On 18 July 2016, the applicant pleaded guilty before Tong J (trial judge) to a count of trafficking in 81.5 grammes of a crystalline solid containing 80.8 grammes of “ice”. Thereafter, on 17 January 2017, he was sentenced to 7 years and 4 months’ imprisonment.", "zh-HK": "2016年7月18日，申請人在高等法院原訟法庭法官湯寶臣（原審法官）席前承認了一項非法販運81.5克晶狀固體，內含80.8克“冰毒”後，在2017年1月17日被判處入獄7年4個月。" } }, { "doc_id": 18, "seg_id": 4, "translation": { "en": "On the basis that 14 grammes of the dangerous drugs in question was for the applicant’s own consumption while 66 grammes was for trafficking, and having stated that possession of 10 odd grammes of “ice” would also lead to quite a substantial sentence, the trial judge eventually adopted 11 years as the starting point, and reduced it by one-third to 7 years and 4 months on account of the applicant’s guilty plea.", "zh-HK": "原審法官以涉案毒品中有14克是申請人作自用,而用作販運的則有66克為基礎,亦指出管有10多克“冰毒”亦會導致不輕的判罰,最終以11年作為量刑基準，並因申請人認罪而將量刑基準扣減三分一至7年4個月。" } }, { "doc_id": 18, "seg_id": 5, "translation": { "en": "The applicant was aggrieved by the sentence. On 8 February 2017, he made an application for leave to appeal, seeking the court’s leave to appeal against sentence. After a hearing, we dismissed the application. Below are the reasons for our judgment.", "zh-HK": "申請人不服判刑,在2017年2月8日提出上訴許可申請，要求法庭批准他就判刑上訴。經聆訊後，本庭駁回申請。以下是本庭的判案理由。" } }, { "doc_id": 18, "seg_id": 6, "translation": { "en": "Ground of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 18, "seg_id": 7, "translation": { "en": "Mr Andy Hung, counsel for the applicant, did not raise any objection to the starting point adopted by the trial judge or his underlying sentencing principle.", "zh-HK": "代表申請人的孔慶碩大律師對原審法官採納的量刑基準及其基本判刑原則沒有提出任何異議。" } }, { "doc_id": 18, "seg_id": 8, "translation": { "en": "Mr Hung’s only complaint was that in sentencing, the trial judge had failed to take into account the assistance rendered by the applicant to the authorities in respect of offences committed by others. Mr Hung’s stance was that considering the assistance rendered to the authorities by the applicant and the possible consequences he would face as a result, he should have been entitled to a reduction of sentence of more than one-third.", "zh-HK": "孔大律師唯一的投訴是原審法官在判刑時沒有考慮申請人曾向當局就他人犯案提供協助。孔大律師的立場是考慮到申請人曾向當局提出的協助及因此可能要面對的後果，他理應取得超過三分一的刑期扣減。" } }, { "doc_id": 18, "seg_id": 9, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 18, "seg_id": 10, "translation": { "en": "According to the information provided by the prosecution, the applicant committed the present offence on 17 January 2015. At the end of April 2016, he indicated his wish to provide crime information to the police. However, on 16 May 2016, when the police visited the applicant, he changed his mind and would not provide any information to the police.", "zh-HK": "根據控方提供的資料，申請人是在2015年1月17日干犯本案。他在2016年4月底表示希望向警方提供罪案消息，但當警員在2016年5月16日探訪申請人時，他改變主意及不會向警方提供任何消息。" } }, { "doc_id": 18, "seg_id": 11, "translation": { "en": "On 8 June 2016, the applicant indicated through his lawyer that he, once again, wished to meet with the police. Thereafter, the applicant disclosed certain crime information to the police in 3 non-prejudicial statements. The applicant also positively identified the person concerned as alleged by him in an identification parade. The applicant alleged that the person concerned had made use of the two mobile phones found on the applicant to contact and direct him to “traffic in dangerous drugs”.", "zh-HK": "2016年6月8日，申請人透過律師表示，他再次希望和警方會面。其後，申請人在三份非用作承認責任供詞中向警方透露某些罪行的資料。申請人亦有在認人手續中認出他指和該些罪行有關的涉案人。申請人指該名涉案人曾以申請人身上搜到的兩部手提電話聯絡及指示他“販毒”。" } }, { "doc_id": 18, "seg_id": 12, "translation": { "en": "Based on the information provided by the applicant, the police conducted thorough inquiries and arrested the person concerned. Despite the positive identification of the person concerned by the applicant in the identification parade, the police eventually did not commence any prosecution in light of the information provided by the applicant.", "zh-HK": "警方根據申請人提供的資料有作出過非常詳細的調查，亦曾經拘捕該名涉案人。雖然申請人有在認人手續中認出該名涉案人，但警方最終沒有就申請人提供的資料作出任何檢控行動。" } }, { "doc_id": 18, "seg_id": 13, "translation": { "en": "It was the stance of the police that the applicant had only made the offer of assistance 16 months after his arrest but thereafter suddenly changed his mind. A month later, the applicant made another offer of assistance. However, inconsistencies in the information provided by the applicant called into question his reliability. Further, his claims were not corroborated at all. The police were of the view that no prosecution could be taken based on the information provided by the applicant. The stance of the police was eventually affirmed by the Department of Justice.", "zh-HK": "警方的立場是申請人在被捕後16個月才提出協助警方，但隨後又突然改變主意。一個月後，申請人又再次提出協助，但申請人提供的資料有不一致的地方，其可靠性令人懷疑，加上他的說法完全沒有任何佐證。警方不認為能根據申請人提出的消息作出任何檢控行動。警方的立場最終得到律政司的確認。" } }, { "doc_id": 18, "seg_id": 14, "translation": { "en": "To solve crimes and bring offenders to justice, the court will encourage someone who has committed a criminal offence to provide information to the police on offences committed by others. One way to so encourage is to reduce the sentence of the offender providing such information, the extent of which shall be determined according to the nature of the information provided and the consequences the provision of such information has on the offender (see Z v HKSAR [2007] 10 HKCFAR 183). However, the court must be rigorous in dealing with the matter to preclude an abuse of the said mechanism of sentence reduction by offenders who, on the one hand, claim they offer assistance to the police while, on the other hand, ensure that the assistance they render will not produce substantive results.", "zh-HK": "為了破解罪行及能令犯案者會被繩之於法，法庭會鼓勵一名犯了刑事罪行的人向警方提供他人的犯罪資料。鼓勵方法之一是向提供資料的犯案者作出刑期扣減，幅度要根據資料的性質和提供資料會對該名犯案者造成的後果而定（見Z v HKSAR [2007] 10 HKCFAR 183案）。但法庭必須採納嚴謹的態度處理事件，避免犯案者濫用上述減刑基制，一方面聲稱協助警方，另一方面則確保其提供的協助不會有實質的後果。" } }, { "doc_id": 18, "seg_id": 15, "translation": { "en": "It was our view that in general circumstances, if an offender wishes to provide information on crimes committed by others in exchange for sentence reduction, one of the conditions is that the information provided must be valuable information or it will only be a waste of police resources. The Court of Appeal stated in paragraph 11, page 462 of the judgment of HKSAR v W [2014] 2 HKC 459:", "zh-HK": "本庭認為一般情況下，如犯案者希望能以提供他人犯罪資料來取得刑期扣減，條件之一是犯案者提供的資料必須是有價值的資料，否則只會浪費警方的資源。上訴法庭在HKSAR v W [2014] 2 HKC 459案判案書第462頁第11段表明：" } }, { "doc_id": 18, "seg_id": 16, "translation": { "en": "In dealing with the above issue, the court must exercise its discretion appropriately and prudently to come to a fair and reasonable decision, or the system of sentence reduction by provision of crime information will certainly be abused.", "zh-HK": "在處理上述議題時，法庭必須恰當及謹慎地行使酌情權，作出公平、合理的裁決，否則以提供犯罪資料來取得刑期扣減的制度必會被濫用。" } }, { "doc_id": 18, "seg_id": 17, "translation": { "en": "The applicant denied refusing deliberately to co-operate with the police and stated that he had truthfully related to the police matters within his knowledge. He also denied inconsistencies in the information provided as alleged by the prosecution. He also stated that there was objective circumstantial evidence to support his stance.", "zh-HK": "申請人否認有存心拒絕和警方合作，並指已據實將所知的事情告知警方。他亦否認控方指他提供的資料有前後不一致的地方。他亦指有客觀環境證據支持他的立場。" } }, { "doc_id": 18, "seg_id": 18, "translation": { "en": "The objective circumstantial evidence referred to by the applicant per se did not support the applicant’s allegation against the person concerned. Further, it was an undisputed fact that it was not until over a year after the commission of the offence by the applicant that he first indicated his willingness to assist the police. And on the information provided by the applicant, there was no adequate basis for the prosecution to prosecute the person concerned, let alone have him convicted.", "zh-HK": "申請人所指的客觀環境證據本身並不支持申請人對涉案人士的指控。再者，不爭議的事實是申請人是在案發後超過一年才首次表示願意協助警方，而根據申請人提供的資料，控方是沒有足夠基礎檢控涉案人士，更不可能成功將他定罪。" } }, { "doc_id": 18, "seg_id": 19, "translation": { "en": "In fact, before the applicant was sentenced, the prosecution had already made it clear that in respect of the information provided by the applicant, “the prosecution had completed the inquiries and no further action would be taken”. At that time, counsel for the applicant accepted the prosecution’s submission and did not plead for a further reduction of sentence by reason of the assistance he had rendered to the prosecution. The trial judge also took the view that the information provided by the applicant did not constitute a further mitigating factor. The applicant was not entitled to make an application for leave to appeal against his sentence on this same ground after he was sentenced.", "zh-HK": "事實上，申請人被判刑前，控方已就申請人提供的資料表明“控方已經調查完畢，就冇進一步嘅行動會進行”。當時代表申請人的大律師接受控方的說法，亦沒有以申請人有向控方提供協助為理由要求法庭進一步減刑。原審法官亦認為申請人提供的資料不構成額外的減刑理由。申請人無權在被判刑後，再以同一理由支持其提出上訴許可申請，要求減刑。" } }, { "doc_id": 18, "seg_id": 20, "translation": { "en": "We had given careful consideration to the background of the matter and it was our view that we should not exercise discretion to allow the applicant a further reduction of sentence in respect of his provision of information to the police.", "zh-HK": "本庭已有小心考慮事件的背景，本庭不認為應該行使酌情權，就申請人有向警方提供資料而給予他額外的刑期扣減。" } }, { "doc_id": 18, "seg_id": 21, "translation": { "en": "We dismissed the applicant’s application for leave to appeal against sentence.", "zh-HK": "本庭駁回申請人就判刑提出的上訴許可申請。" } }, { "doc_id": 18, "seg_id": 22, "translation": { "en": "Andy Hung, assigned by the Legal Aid Department, for the applicant", "zh-HK": "答辯人：由律政司高級檢控官伍淑娟代表。" } }, { "doc_id": 18, "seg_id": 23, "translation": { "en": "Laura Ng, Senior Public Prosecutor, of the Department of Justice, for the respondent", "zh-HK": "申請人：由法律援助署委派大律師孔慶碩代表。" } }, { "doc_id": 19, "seg_id": 1, "translation": { "en": "Hon Chu JA giving the judgment of the Court:", "zh-HK": "由上訴法庭法官朱芬齡頒發上訴法庭判案書：" } }, { "doc_id": 19, "seg_id": 2, "translation": { "en": "The applicant pleaded guilty to four charges in the District Court. The first and fourth charges were conspiracy to deal with property known or believed to represent proceeds of an indictable offence (commonly known as “money laundering”), contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455 and sections 159A and 159C of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. The second and third charges were dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455, Laws of Hong Kong.", "zh-HK": "上訴人在區域法院承認4項罪名。第一及第四項控罪是串謀處理已知道或相信為代表從可公訴罪行的得益的財產(俗稱「洗黑錢」)，違反香港法例第455 章《有組織及嚴重罪行條例》第25（1）和（3）條，以及第200章《刑事罪行條例》第159A和159C條。第二及第三項控罪是處理已知道或相信為代表從可公訴罪行的得益的財產，違反香港法例第455章《有組織及嚴重罪行條例》第25（1）和（3）條。" } }, { "doc_id": 19, "seg_id": 3, "translation": { "en": "On 28 December 2010, District Judge S.T. Poon, Acting Chief Judge of the District Court, sentenced the applicant to 42 months’ imprisonment on each charge, and ordered that 6 months of the sentence imposed on the fourth charge to be served consecutively with that on the third charge, the remainder to be served concurrently, i.e. making a total of 4 years’ imprisonment.", "zh-HK": "2010年12月28日，署理區域法院首席法官潘兆童判處上訴人每項控罪接受42個月監禁，第四項控罪的刑期其中6個月與第三項刑期分期執行，其餘刑期同期執行，即總刑期是4年監禁。" } }, { "doc_id": 19, "seg_id": 4, "translation": { "en": "The applicant applied for leave to appeal against sentence. With no objection from the respondent, Yeung JA granted his application for leave to appeal on 15 April 2011.", "zh-HK": "上訴人就判刑提出上訴許可申請。在答辯人不反對的情況下，楊振權法官在2011年4月15日批准上訴許可申請。" } }, { "doc_id": 19, "seg_id": 5, "translation": { "en": "Facts of the case", "zh-HK": "涉案的案情" } }, { "doc_id": 19, "seg_id": 6, "translation": { "en": "The four charges of the present case took place on 8, 9, 10 and 11 June 2010 respectively. The four victims concerned respectively received phone calls from unknown caller(s) who falsely represented to them that their family members were assaulted and detained as they owed money acting as guarantors for others. (The caller(s)) demanded money from them to repay the debts as a condition of their family members’ release. They were also instructed to deliver the money to designated locations for collection. The amounts in respect of the four charges are $200,000, $30,000, $20,000, and $60,000 respectively. As a matter of fact, family members of the victims were not indebted to others or detained.", "zh-HK": "本案的4項罪行分別發生在2010年6月8、9、10和11日。所涉的4名受害人分別收到來歷不明的電話，訛稱他們的親人因為充當擔保人欠下債務而遭到毆打和扣押，要求他們代為償還債項作為釋放其親人的條件，並指示他們把款項送到指定地方交收。4項控罪所涉的款項分別是200,000元，30,000元，20,000元和60,000元。事實上受害人的親人既沒有欠債，亦沒有遭人扣押。" } }, { "doc_id": 19, "seg_id": 7, "translation": { "en": "When the victim of the fourth charge put an envelope containing $60,000 at the designated location as instructed, the applicant went to pick it up. He was later arrested by the police. In the cautioned interview, the applicant admitted that a man named Wai Gor (transliteration) asked him to come and work in Hong Kong. (He) also gave him $1,000 for his expenses and promised to give him 15% of the profit made as reward. He came to Hong Kong from Shenzhen on 7 June 2010. On the same day, and the following three days, he collected money at different locations acting on the phone instructions given by an unknown man. On 9 and 10 June 2010, he successfully collected $30,000 and $20,000 and remitted the amounts to an account in the Mainland. He had yet to receive his 15% reward when he was arrested.", "zh-HK": "當第四項控罪的受害人按指示把載有60,000元的信封放在指定地點後，上訴人前去拿起信封。他之後被警方拘捕。在警誡下進行的會面中，上訴人承認一名叫偉哥的男子叫他到香港工作，及給了他1,000元作開銷，並答應給他15%的利潤作為酬金。他在2010年6月7 日從深圳到達香港。在同日及其後的三天內，他根據一名不知名男子的電話指示，前往不同地方拿取金錢。他在2010 年6月9日和10日成功拿到30,000元和20,000元，並將款項滙到內地一個戶口。他在被捕時尚未收到他的15%酬金。" } }, { "doc_id": 19, "seg_id": 8, "translation": { "en": "The $200,000 and $60,000 in the first and fourth charges were not lost. However, the $30,000 and $20,000 in respect of the second and third charges could not be recovered.", "zh-HK": "第一項和四項控罪所涉的200,000元和60,000元並沒有失去，但第二項和三項控罪所涉的30,000元和20,000 元則不能尋回。" } }, { "doc_id": 19, "seg_id": 9, "translation": { "en": "Sentence imposed by the trial judge", "zh-HK": "原審法官的判刑" } }, { "doc_id": 19, "seg_id": 10, "translation": { "en": "The applicant was aged 25 years, a Mainland resident, who came to Hong Kong on a two-way permit. He claimed that his father suffered from disability in both legs and lost his ability to work. He committed the offences as he wanted to relieve the family’s burden.", "zh-HK": "上訴人25歲，是內地居民，持雙程證來香港。他稱父親雙腿殘廢，沒有工作能力，他為了想減輕家庭負擔而犯案。" } }, { "doc_id": 19, "seg_id": 11, "translation": { "en": "The trial judge took the view that though the applicant’s role was limited to that of a “legman”, a deterrent sentence should still be imposed. He adopted a starting point of 4 years’ imprisonment on each charge, reduced it to 32 months’ imprisonment on account of the applicant’s plea of guilty, then enhanced it by one-third, i.e. 10 months, upon the application of the prosecution pursuant to the Organized and Serious Crimes Ordinance, resulting in 42 months’ imprisonment on each charge. Besides, the trial judge ordered that 6 months of the sentence imposed on the fourth charge to be served consecutively with that on the third charge, the remainder to be served concurrently, making a total of 4 years’ imprisonment.", "zh-HK": "原審法官認為雖然上訴人只是扮演「跑腿」的角色，仍須判以阻嚇式的刑罰。他採用4年監禁作為每項控罪的量刑起點，因上訴人認罪減為32個月監禁，但應控方申請，根據《有組織及嚴重罪行條例》加刑三分之一，即10 個月，故此每項控罪判刑42個月監禁。此外，原審法官頒令第四項控罪的刑期其中6個月與第三項控罪的刑期分期執行，其餘刑期同期執行，總刑期為4年監禁。" } }, { "doc_id": 19, "seg_id": 12, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 19, "seg_id": 13, "translation": { "en": "The applicant submitted that the sentences imposed were manifestly excessive. His grounds of appeal included: (1) he did not know the source of the money collected nor was there evidence in the case to show that he was aware of it; and (2) it was inappropriate for the trial judge to refer to HKSAR v Hung Yung Chun [2011] 2 HKLRD 167, because the charge therein was conspiracy to defraud, and the judge in that case did not accept the defendant’s claim that he had no knowledge. At the same time, the applicant referred the Court to HKSAR v Lam Chun Chung (transliteration), DCCC 1007/2010, arguing that the two cases were similar and the Court could make reference to the sentence imposed in that case.", "zh-HK": "上訴人指判刑過重。他的上訴理由包括：（1） 他不知道拿取的款項的來源，而案中亦沒有證據顯示他對此是知情的；以及（2）原審法官引用香港特別行政區訴洪永俊[2011] 2 HKLRD 167不恰當，因為該案是一宗串謀詐騙罪，而且案中法官並不接納被告是不知情的說法。上訴人同時援引香港特別行政區訴林俊忠DCCC 1007/2010一案，認為兩案情況相若，本庭可參考該案的刑期。" } }, { "doc_id": 19, "seg_id": 14, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 19, "seg_id": 15, "translation": { "en": "In Secretary for Justice v Wan Kwok Keung, CAAR 13/2010, this Court pointed out that “money laundering” was a serious offence. Generally, the sentence should mainly reflect the amount of “black money” laundered and not the benefit obtained by the defendant or others. Other factors relevant to sentencing included the number of offences, the duration, the degree to which the defendant participated in the offence involving “black money” and whether or not it was an organized and sophisticated crime etc. See paragraphs 12 to 14 of the judgment.", "zh-HK": "在律政司司長訴雲國強CAAR 13/2010案中，本庭指出「洗黑錢」是嚴重罪行，一般而言判刑應主要反映清洗「黑錢」的數額，而非被告人或其他人的得益；而其他與判刑有關的因素包括犯案的次數和時間的長短、被告人參與和「黑錢」有關的罪行的程度、罪行是否有組織和是否精密等：見判案書第12至14段。" } }, { "doc_id": 19, "seg_id": 16, "translation": { "en": "In Wan Kwok Keung, the defendant pleaded guilty to one charge of “money laundering” and one charge of bookmaking. The “black money’ involved in the case was from bets placed on illegal soccer gambling. The defendant had participated in “money laundering” for 7 years, and the amount involved was 14 million dollars. At the same time, he also participated in the bookmaking offence. On the other hand, the bookmaking offence was not well-organized, the money the defendant obtained was not huge either. The Court was of the view that the appropriate starting point adopted should not be lower than 4 years’ imprisonment even if the defendant was to be dealt with in a way most favourable to him.", "zh-HK": "在雲國強案，被告人承認一項「洗黑錢」罪和一項收受賭注罪。案中的「黑錢」源自非法收受足球博彩賭注。被告人參予「洗黑錢」7年，所涉金額達1,400 萬元，他同時亦有參予收受賭注的罪行。另一方面，該等收受賭注的罪行的組織並不嚴密，被告人取得的金額亦非巨大。法庭認為即使以對被告人最有利的方法處理，適用的量刑基準亦不應低過4年。" } }, { "doc_id": 19, "seg_id": 17, "translation": { "en": "Concerning the “money laundering” offence, the defendant was sentenced to 2 years and 6 months’ imprisonment, to be served concurrently with the 2 months’ imprisonment imposed on the other charge of bookmaking.", "zh-HK": "就「洗黑錢」罪，被告人被判以2年6個月的監禁，判刑與另一項收受賭注罪的2個月刑期同期執行。" } }, { "doc_id": 19, "seg_id": 18, "translation": { "en": "In the present case, the total amount involved was $310,000, and the four charges took place within a very short period of time. There was no evidence to show that the applicant participated directly in the offences in connection with the “black money”, nor was there evidence to prove the benefit he obtained. The respondent agreed that under such circumstances a starting point of 4 years’ imprisonment on each charge adopted by the trial judge was manifestly excessive; and took the view that 3 years’ imprisonment should be adopted as the starting point.", "zh-HK": "在本案中，所涉金額共310,000元，4項控罪在很短的時間內發生，並沒有證據顯示上訴人直接參予和「黑錢」有關的罪行，亦沒有證據證明他得到多少利益。答辯人同意在這些情況下，原審法官採用4年作為每項控罪的量刑起點是過重，及認為應採用3年作為量刑起點。" } }, { "doc_id": 19, "seg_id": 19, "translation": { "en": "The Court took the view that judging from the amount of “black money” and the other circumstances in the present case, the appropriate starting point for each charge should be 3 years’ imprisonment. The applicant could be given one-third discount for his plea of guilty, the sentence was thus reduced to 24 months’ imprisonment. However, the sentence on each charge should be enhanced by one-third, i.e. 8 months, pursuant to the Organized and Serious Crimes Ordinance. Consequently, the sentence on each charge was 32 months’ imprisonment. Given the four charges involved four different kinds of crimes, part of the sentences should be served consecutively. Having considered the totality principle, the Court ordered that 6 months of the sentence imposed on the fourth charge to be served consecutively with that on the third charge. The total sentence imposed on the applicant is 38 months’ imprisonment.", "zh-HK": "本庭認為以本案所涉的「黑錢」的數額和其他情況看來，每項控罪的合適量刑起點是3年。上訴人承認控罪可獲三分一扣減而成為24個月，但根據《有組織及嚴重罪行條例》，每項控罪的刑期應加刑三分之一，即8個月。因此每項控罪的刑期是32個月。有鑑於4項控罪涉及4 項不同的罪行，部份刑期應分期執行。在顧及總刑期的原則下，本庭把第四項控罪的刑期其中6個月，與第三項控罪分期執行。上訴人的總刑期是38個月。" } }, { "doc_id": 19, "seg_id": 20, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 19, "seg_id": 21, "translation": { "en": "The Court allowed the applicant’s appeal against sentence, substituted a term of 32 months’ imprisonment in relation to each charge; and ordered that 6 months of the sentence imposed on the fourth charge to be served consecutively with that on the third charge, and the remainder to be served concurrently, making a total of 38 months’ imprisonment.", "zh-HK": "本庭批准上訴人就判刑提出的上訴，把判刑改為每項控罪判以32個月監禁；第四項控罪刑期中的6個月與第三項控罪的刑期分期執行，而其餘刑期同期執行，總刑期是38個月。" } }, { "doc_id": 19, "seg_id": 22, "translation": { "en": "The Applicant, in person, present", "zh-HK": "上訴人：無律師代表，親自出庭" } }, { "doc_id": 19, "seg_id": 23, "translation": { "en": "Mr. Eddie Sean, Senior Assistant Director of Public Prosecution of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員單偉琛代表" } }, { "doc_id": 20, "seg_id": 1, "translation": { "en": "Tang VP:", "zh-HK": "上訴法庭副庭長鄧國楨:" } }, { "doc_id": 20, "seg_id": 2, "translation": { "en": "I agree with the judgment of Cheung JA and would grant leave to appeal to the applicant for the same reasons, treat the hearing of the application as the appeal proper, but dismiss the appeal.", "zh-HK": "本席同意張法官的判決及基於同樣的理由，本席批准申請人的上訴許可申請，並視申請為正式上訴，但駁回上訴。" } }, { "doc_id": 20, "seg_id": 3, "translation": { "en": "Cheung JA:", "zh-HK": "上訴法庭法官張澤祐：" } }, { "doc_id": 20, "seg_id": 4, "translation": { "en": "I agree with the judgment of Yeung JA dismissing the applicant’s appeal.", "zh-HK": "本席同意楊法官駁回申請人上訴的判決。" } }, { "doc_id": 20, "seg_id": 5, "translation": { "en": "I will express my opinions on the applicant’s “burden of proof”. The presumptions in section 47(2) of the Dangerous Drugs Ordinance only require the defendant to carry the evidential burden of proof. He needs to adduce sufficient evidence to raise an issue, so that the judge is obliged to leave the issue to the jury’s decision: Bratty v A-G for the Northern Ireland [1963] AC 386. The defendant’s burden in this regard is distinct from the “legal burden of proof” or “persuasive burden of proof”.", "zh-HK": "本席對申請人的「舉證責任」表達以下的意見。《危險藥物條例》第47(2) 條的推定只是需要被告人負起證據上的舉證責任 (evidential burden of proof)，他需要援引充分的證據以帶出一個爭論點，好讓法官把爭論點交由陪審團作決定: Bratty v A-G for the Northern Ireland [1963] AC 386。被告人就這方面所負的責任是有別於法律上的「舉證責任」(legal burden of proof) 或者游說式的「舉證責任」(persuasive burden of proof)。" } }, { "doc_id": 20, "seg_id": 6, "translation": { "en": "In Hong Kong, the legal “burden of proof” in criminal cases is borne by the prosecution: AG v. Hui Kin Hong [1995] 5 HKPLR 100. If the prosecution fails to satisfy the “legal burden of proof” in respect of the issues in dispute, the court shall find the defendant not guilty.", "zh-HK": "香港刑事案的控方是需負上證實控罪的法律上的「舉證責任」：AG v. Hui Kin Hong [1995] 5 HKPLR 100。若控方不能履行爭議的事項的「法律舉證責任」，法庭需判處被告人無罪。" } }, { "doc_id": 20, "seg_id": 7, "translation": { "en": "The provision of section 47(2) only requires the defendant to adduce evidence to raise an issue for the court to address. Hence, I am of the view that by electing to give evidence in his own defence, the applicant in this case has already satisfied this “burden of proof”. The issue Judge Chan needs to address is whether the applicant knew the nature of the drugs in question. The legal “burden of proof” in respect of this issue has all along been borne by the prosecution, which the prosecution has in fact already fully satisfied.", "zh-HK": "第47(2) 條的條文只是要求被告人提出證據以帶出一個爭議點讓法庭來解決，因此本席認為本案的申請人選擇作供自辯已經是滿足了這個「舉證責任」要求。陳法官所需要處理的爭議點是申請人是否知悉有關毒品的性質，這項議題法律上的「舉證責任」一直是控方，而控方其實已經充分履行了這項責任。" } }, { "doc_id": 20, "seg_id": 8, "translation": { "en": "It is my view that even if Judge Chan has applied inappropriately the presumption in section 47(1) so that serious mistakes were made in the course of the hearing, this court can still dismiss the appeal by applying “the proviso”.", "zh-HK": "本席認為就算陳法官不適當地引用條例第 47(1) 條的推定，以致聆訊過程出現重大錯誤，本席認為本庭仍可以使用「但書」來駁回上訴。" } }, { "doc_id": 20, "seg_id": 9, "translation": { "en": "The drugs involved in this case are 22.69 grams of cocaine. The drug traffickers must have considered that they could profit from this consignment of drugs before engaging in this illicit activity. In carrying out this illicit activity, it is unthinkable that Law Ching Yan (transliteration) would rashly ask the applicant to handle this consignment of drugs of considerable value without telling him that the contents of the parcel are dangerous drugs. Law Ching Yan must obviously have trust in the applicant by asking him to make arrangements for the collection of the parcel. If the applicant believed that the parcel he was going to collect merely contained game cartridges, there is absolutely no need for him to take such a circuitous approach by instructing an accomplice to collect the parcel whilst keeping him under observation during the process. In these circumstances, a reasonable jury would no doubt presume that the applicant knew the parcel contained dangerous drugs, and he was one of the drug traffickers.", "zh-HK": "涉案毒品是22.69 克的可卡因，販運毒品的人士必定認為這批毒品是有利可圖才會進行這項非法勾當的。羅政忻在進行這項非法勾當時斷不會貿然將這批價值甚高的毒品交給申請人處理，而不告訴他郵包內的東西就是毒品。明顯地，申請人是獲得羅政忻信任才會被指派安排收取這郵包。若果如申請人以為他要拿取的郵包內只是載着遊戲機帶，他根本就不需要以這麼迂迴曲折的手法去指使另一名同黨收取郵包及在過程中一直監控着他。在這情況下，合理的陪審團是必然作出推論申請人是知悉郵包內藏有毒品的，而他是販運毒品的其中一名成員。" } }, { "doc_id": 20, "seg_id": 10, "translation": { "en": "Yeung JA:", "zh-HK": "上訴法庭法官楊振權：" } }, { "doc_id": 20, "seg_id": 11, "translation": { "en": "In May 2008, someone called Jason Chow mailed a parcel (“the parcel”) containing cocaine from Canada to Hong Kong through Federal Express. The recipient of the parcel was Lam Hoi Fung (transliteration), and the address of the recipient was falsely given as Flat 1814, 18/F, Mei Yat House, Yat Tung Estate, Tung Chung, Hong Kong. Lam Hoi Fung was at the time under 14 and resided at Tung Lung House, Tai Hang Tung estate.", "zh-HK": "2008年5月，一名叫Jason Chow的人士從加拿大透過聯邦快遞將一件載有可卡因的郵件（“該郵件”）寄來香港，收件人為林凱風，收件地址虛報為Flat 1814, 18/F, Mei Yat House, Yat Tung Estate, Tung Chung, Hong Kong。當時林凱風不足14歲，在大坑東邨東龍樓居住。" } }, { "doc_id": 20, "seg_id": 12, "translation": { "en": "The parcel arrived at Hong Kong on 20 May 2008. An employee of Federal Express handed over the parcel for customs clearance. It was confirmed thereafter that there was inside the parcel 27.16 grams of crystallized substance containing 22.69 grams of cocaine.", "zh-HK": "該郵件在2008年5月20日抵港後由聯邦快遞的職員交予海關清關。其後該郵件被證實載有27.16克固體，內含22.69克可卡因。" } }, { "doc_id": 20, "seg_id": 13, "translation": { "en": "Customs officer 98362 restored the parcel to its original state and resealed it, and then delivered the parcel to Lam Hoi Fung at the aforesaid false address posing as an employee of Federal Express, but nobody answered the door. The parcel was subsequently sent to the service centre of Federal Express in Cheung Sha Wan for the recipient to collect.", "zh-HK": "關員98362將該郵件還原及再封口後，喬裝為聯邦快遞的職員，將郵件帶到上述虛報地址找林凱風，但沒有人應門。其後該郵件送往聯邦快遞在長沙灣的服務中心等候收件人收取。" } }, { "doc_id": 20, "seg_id": 14, "translation": { "en": "Lam Hoi Fung collected the parcel on 21 May 2008 and was arrested by customs officers. Shortly after his arrest, his mobile phone rang twice. The caller ID revealed that the caller was Benz and his telephone number was 6688-0233. Based on the information provided by Lam Hoi Fung, customs officers immediately proceeded to the 7-11 store at the junction of Fuk Wing Street and Castle Peak Road, where they saw the applicant Poon Kiu Yu and Law Ching Yan chatting and arrested them.", "zh-HK": "2008年5月21日，林凱風提取了該郵件後，遭關員拘捕。在林凱風被拘捕後不久，他的手提電話曾響了兩次，來電顯示來電者為Benz，電話號碼為6688-0233。關員隨即根據林凱風提供的資料前往福榮街和青山道交界的7-11店鋪。關員發現申請人潘喬裕和羅政忻在場傾談並將他們拘捕。" } }, { "doc_id": 20, "seg_id": 15, "translation": { "en": "Customs officers subsequently took Law Ching Yan to his residence in Kam Wah Building for a search, where they found a quantity of cannabis, two packets of soda powder, three packets of yellow crystallized substance and 107 plastic packets in the size of 12cm x 8 cm.", "zh-HK": "其後關員帶羅政忻前往金華大厦的住所搜查，結果搜到一些大麻，兩包梳打粉、三包黃色晶狀物體和107個12厘米乘8厘米的膠袋。" } }, { "doc_id": 20, "seg_id": 16, "translation": { "en": "According to customs officer 9444, when he intercepted the applicant outside the 7-11 store at the junction of Fuk Wing Street and Castle Peak Road, the applicant did produce his identity card, but appeared to be taken aback. He revealed under caution that he knew Lam Hoi Fung and Law Ching Yan, and admitted having just made two telephone calls to Lam Hoi Fung.", "zh-HK": "據關員9444所稱，當他在福榮街和青山道交界的7-11店鋪外截查申請人時，申請人有出示身份證，並表現愕然。在警誡下，申請人表示認識林凱風和羅政忻，亦承認剛剛打了兩次電話給林凱風。" } }, { "doc_id": 20, "seg_id": 17, "translation": { "en": "At a video-recorded interview held subsequently, the applicant told customs officers that some time before the incident, he was asked by Ah Ken, a friend he had known for just over a month, to collect something sent to Ah Ken from abroad, as Ah Ken was too busy to collect it himself. Ah Ken also promised to give him 1,000 dollars as a reward, but as he was engaged in work, he therefore asked Lam Hoi Fung to perform the task instead. The applicant indicated that Ah Ken had obtained from him the name and identity card number of Lam Hoi Fung.", "zh-HK": "其後在錄影會面時，申請人向關員表示案發前有一名他認識個多月的朋友阿Ken對他說有人在外國寄了些東西給他，但自己沒有空故要求申請人替他去收取。阿Ken表示會給申請人1,000元酬勞。申請人因為有工作，故要求林凱風代勞。申請人表示亞Ken曾有向他取得林凱風的姓名及身份證號碼。" } }, { "doc_id": 20, "seg_id": 18, "translation": { "en": "The applicant went on to say that on 20 May 2008, Ah Ken told him to instruct Lam Hoi Fung not to go to the Tung Chung address to collect the parcel, but instead should telephone the express services company to make other arrangements. Subsequently, Lam Hoi Fung made arrangements with the company to collect the parcel at the Cheung Sha Wan service centre of Federal Express. Eventually, the applicant arranged with Lam Hoi Fung to go to the Cheung Sha Wan service centre together to collect the parcel. When the applicant was in the vicinity of the service centre, he received a telephone call from Ah Ken and was told to wait for him. When Ah Ken arrived, the two of them entered a restaurant where they waited for Lam Hoi Fung. They were arrested by customs officers when they left the restaurant.", "zh-HK": "申請人續稱在2008年5月20日，亞Ken吩咐申請人指示林凱風不要前往東涌地址收取郵件，但要打電話去速遞公司另作安排。其後，林凱風和速遞公司安排在聯邦快遞長沙灣服務中心收取郵件。最終申請人和林凱風相約一起前往長沙灣服務中心收取郵件。去到服務中心附近時，阿Ken打電話給申請人要申請人等他。阿Ken出現後，他們就進入餐廳等候林凱風，但離開時即被關員拘捕。" } }, { "doc_id": 20, "seg_id": 19, "translation": { "en": "The applicant said that after meeting up with Ah Ken, he instructed Lam Hoi Fung to go alone to the service centre to collect the parcel. The applicant claimed that Ah Ken had described the parcel as very important, but without specifying what it was. He was not surprised by Ah Ken’s offer of 1,000 dollars to him as a reward, as Ah Ken appeared to be well off and always bought him drinks.", "zh-HK": "申請人表示和阿Ken會合後，他指示林凱風單獨前往服務中心收取郵件。申請人聲稱阿Ken有說過郵件很重要，但沒有表明是甚麼，而他對阿Ken願意給他1,000元酬勞亦不覺奇怪，原因是阿Ken表現富有，亦常請他飲酒。" } }, { "doc_id": 20, "seg_id": 20, "translation": { "en": "The applicant alleged that Ah Ken had said he was not free, but suddenly turned up on the day of the incident, and asked immediately after seeing him whether the parcel had been collected.", "zh-HK": "申請人聲稱阿Ken曾說過無空，他事發當天又突然出現，並在見面後立刻問他是否已取得郵件。" } }, { "doc_id": 20, "seg_id": 21, "translation": { "en": "The applicant also indicated that it was Ah Ken who called him up on each occasion, and he did not store Ah Ken’s telephone number in his cell phone. The applicant claimed that he had never seen the parcel in question, nor did he know what it was.", "zh-HK": "申請人亦表示每次都是阿Ken打電話給他，而他亦沒有將阿Ken的名字收錄在電話內。申請人指自已沒有見過涉案郵件，亦不知它是甚麼東西。" } }, { "doc_id": 20, "seg_id": 22, "translation": { "en": "Due to the incident mentioned above, the applicant, Lam Hoi Fung and Law Ching Yan were jointly charged with the offence of trafficking in 27.16 grams of crystallized substance containing 22.69 grams of cocaine. They all denied the charge.", "zh-HK": "上述事件導致申請人，林凱風和羅政忻一起被控販賣該郵件內所載的27.16克固體，內含22.69克可卡因罪，他們都否認控罪。" } }, { "doc_id": 20, "seg_id": 23, "translation": { "en": "They were all convicted after trial in the District Court by Judge Stanley Chan, and the applicant was sentenced to five years’ imprisonment.", "zh-HK": "經審訊後，區域法院陳廣池法官裁定他們全部罪名成立，並判處申請人入獄5年。" } }, { "doc_id": 20, "seg_id": 24, "translation": { "en": "The applicant had applied for leave to appeal against both conviction and sentence, but abandoned on 5 August 2009 his application for leave to appeal against sentence, which the court dismissed accordingly. Now I only need to deal with his application for leave to appeal against conviction.", "zh-HK": "申請人曾就定罪及判刑都提出上訴許可申請，但在2009年8月5日放棄就判刑的上訴許可申請，該申請亦被撤銷。本席 只需處理申請人就定罪的申請。" } }, { "doc_id": 20, "seg_id": 25, "translation": { "en": "The Applicant’s Defence", "zh-HK": "申請人的答辯理由" } }, { "doc_id": 20, "seg_id": 26, "translation": { "en": "The applicant basically did not dispute the prosecution’s case against him, he also agreed that he gave the record of interview voluntarily. He only wanted to prove during his cross-examination of the prosecution witness that at the time of his arrest, he had on his person 292 dollars, a mobile phone, a Hang Seng Bank ATM card, a game card and an identity card etc.", "zh-HK": "申請人對控方指控他的證據基本上全無異議，他亦同意會面記錄內容是他自願作出的。在盤問控方證人時，申請人只是想證明被拘捕時，他身上有292元，一部手提電話、一張恆生銀行提款卡、一張遊戲卡和身份證等物件。" } }, { "doc_id": 20, "seg_id": 27, "translation": { "en": "The applicant gave evidence in his own defence. He stated that he had known Law Ching Yan for over a month before the incident, but did not know what his occupation was. He only got the impression that Law was well-off and kind to others, because they had had drinks together on three or four occasions and every time Law volunteered to foot the bills.", "zh-HK": "作供自辯時，申請人表示案發時認識了羅政忻個多月，但不清楚他的職業，只是感覺到他富有及好人事，原因是在三、四次飲酒時，羅政忻都主動付賬。" } }, { "doc_id": 20, "seg_id": 28, "translation": { "en": "The applicant stated that two weeks before the incident, Law Ching Yan asked him to collect a parcel, but he refused on the ground that he was busy. Law Ching Yan later offered a reward, the applicant then sought Lam Hoi Fung’s assistance and promised to pay him 1,000 dollars.", "zh-HK": "申請人指案發前兩星期，羅政忻要求他去拿取一件郵包，但申請人拒絕，指自己沒有空。其後，羅政忻提出支付酬金，故申請人找來林凱風幫忙，並表示會給他1,000元。" } }, { "doc_id": 20, "seg_id": 29, "translation": { "en": "The applicant said he believed the parcel contained game cartridges mailed from abroad, but he had no idea why Law Ching Yan did not contact Lam Hoi Fung direct.", "zh-HK": "申請人表示以為郵包只是由外國寄來的遊戲機帶，但不知悉為何羅政忻不直接聯絡林凱風。" } }, { "doc_id": 20, "seg_id": 30, "translation": { "en": "The applicant said he was woken up by Law Ching Yan’s call on the day of the incident, and was told that the parcel had arrived in Hong Kong according to the results of the enquires made online. The applicant also stated that Lam Hoi Fung had arranged with the express services company to collect the parcel at the Cheung Sha Wan service centre at 2:30 pm. He told Lam Hoi Fung to go alone to collect the parcel as he was in a hurry. The applicant stressed that the parcel was Law Ching Yan’s and it was collected by Lam Hoi Fung. He admitted that during the time when he was waiting for Lam Hoi Fung together with Law Ching Yan in a restaurant, he telephoned Lam Hoi Fung twice in the span of several minutes. He did so because Law Ching Yan wondered why it took Lam Hoi Fung so long to come and was a bit anxious.", "zh-HK": "申請人指案發當天羅政忻打電話弄醒他並說經上網查詢知悉郵包已抵港。申請人亦指，林凱風曾和速遞公司相約在下午2時半前往長沙灣服務中心收取郵包，但因為自己趕時間故囑咐林凱風個人前往收取郵包。申請人強調郵包屬於羅政忻而林凱風則負責提取郵包。申請人承認和羅政忻在餐廳等候林凱風期間，他相隔數分鐘便打了兩次電話給林凱風，原因是羅政忻對林凱風這麼久仍未回來，感到奇怪，亦有點焦急。" } }, { "doc_id": 20, "seg_id": 31, "translation": { "en": "The applicant stressed that he did not know that the parcel contained dangerous drugs, he was “hoodwinked” and hence was dumbfounded when he was intercepted by customs officers.", "zh-HK": "申請人強調不知道郵包藏有毒品，而自己是被人“整蠱”，故被關員截查時，感到愕然。" } }, { "doc_id": 20, "seg_id": 32, "translation": { "en": "The applicant said Law Ching Yan did not know Lam Hoi Fung, and Lam Hoi Fung had provided the name of another person surnamed “Shi”. He stressed that the 1,000 dollars he promised Lam Hoi Fung was to be paid by Law Ching Yan. He had also provided information of the person surnamed “Shi” to Law Ching Yan, but Law indicated that the parcel would be mailed to Lam Hoi Fung.", "zh-HK": "申請人指羅政忻並不認識林凱風，而林凱風曾提供另一姓史人士的名字。申請人強調他答應給林凱風的1,000元，由羅政忻負責支付，他亦有將姓史的資料提供給羅政忻，但羅政忻表示郵包會寄給林凱風。" } }, { "doc_id": 20, "seg_id": 33, "translation": { "en": "The applicant said that he was too busy to collect the parcel and so he had to give up the reward of 1,000 dollars. Given that the parcel was registered with Lam Hoi Fung as the recipient, the applicant was put in an awkward situation when Lam Hoi Fung expressed reluctance to go and collect the parcel. He urged Lam Hoi Fung not to change his mind as he had promised Law Ching Yan that the parcel would be collected. Eventually Lam Hoi Fung agreed to collect the parcel.", "zh-HK": "申請人指自己沒有空，故放棄賺取1,000元而由於郵包以林凱風登記為收件人，所以當林凱風說不想去收取郵包時，令他感到為難。申請人強調自已答應了羅政忻，故要求林凱風不要變卦，而最終林凱風亦同意前往收取郵包。" } }, { "doc_id": 20, "seg_id": 34, "translation": { "en": "The applicant agreed that he had not mentioned Lam Hoi Fung’s age to Law Ching Yan, and Law Ching Yan also did not request to know Lam Hoi Fung’s address. The applicant said he wrote down the names of Lam Hoi Fung and the person surnamed “Shi” and their identity card numbers on a piece of paper and gave it to Law Ching Yan. He did not write down any addresses.", "zh-HK": "申請人同意他沒有向羅政忻說及林凱風的年紀，而羅政忻亦沒有要求知道林凱風的地址。申請人表示他是將林凱風及姓史的名字和身份證號碼抄在紙上交給羅政忻，但他並沒有寫下任何地址。" } }, { "doc_id": 20, "seg_id": 35, "translation": { "en": "The applicant said Law Ching Yan and Ah Ken were the same person, and he sought Lam Hoi Fung’s assistance in collecting the parcel for Law Ching Yan as he knew that Lam Hoi Fung was always short of money.", "zh-HK": "申請人指羅政忻就是阿Ken，而他知道林凱風平時沒有錢，故找他幫忙，協助羅政忻收取郵包。" } }, { "doc_id": 20, "seg_id": 36, "translation": { "en": "The applicant stressed that he sought Lam Hoi Fung’s assistance because he himself was engaged in work and did not know whether he could spare the time for the collection of the parcel. He also stressed that it was Law Ching Yan who made arrangements for the parcel to be redirected to the Cheung Sha Wan service centre.", "zh-HK": "申請人強調找林凱風協助，因為自己有工作，不知悉是否可以安排時間提取郵包。申請人亦強調是羅政忻安排將郵包轉致長沙灣服務中心的。" } }, { "doc_id": 20, "seg_id": 37, "translation": { "en": "The Evidence of Law Ching Yan", "zh-HK": "羅政忻的證供" } }, { "doc_id": 20, "seg_id": 38, "translation": { "en": "Law Ching Yan also gave evidence in his own defence. He stated that he was instructed by a person nicknamed “Ko Lo” to collect some liduokayin, a legal chemical substance. He would then pass it on to someone else and wired the money received from the transaction to “Ko Lo”.", "zh-HK": "羅政忻亦有作供自辯，他表示是一花名“高佬”的人指示他去收取一些合法的化學品 – 利多卡因，收到後轉交他人並將收取到的交易款項電滙給“高佬”。" } }, { "doc_id": 20, "seg_id": 39, "translation": { "en": "Law Ching Yan said he approached the applicant directly, asking him to get the assistance of a “young lad”. He indicated to the applicant that the person should preferably be someone who did not know him and had not seen him before, and the applicant could deal with the reward of 1,000 dollars as he liked.", "zh-HK": "羅政忻指是自己直接接觸申請人，要他找一名“靚仔”協助。羅政忻向申請人表示最好找一名未見過他，亦不認識他的人，而他付出的1,000元則由申請人自行處理。" } }, { "doc_id": 20, "seg_id": 40, "translation": { "en": "Law Ching Yan said he and the applicant arranged to meet at a MTR station on the day of the incident, and the applicant was to pretend that he did not know him. Subsequently, when he saw the applicant and Lam Hoi Fung, he instructed the applicant over the telephone to tell Lam Hoi Fung to collect the parcel and then wait outside a restaurant. He told the applicant that he would meet up with him only after Lam Hoi Fung had left. Subsequently, he also instructed the applicant to telephone Lam Hoi Fung to inquire of him whether he had collected the parcel.", "zh-HK": "羅政忻指案發當天和申請人相約在地鐵站等候，而申請人扮不認識他。其後他看見申請人和林凱風後，用電話指示申請人叫林凱風去收取郵包而申請人則在一酒樓門前等候，當林凱風離開後，他才和申請人會合。其後，他亦有指示申請人打電話給林凱風，查問他是否已收到郵包。" } }, { "doc_id": 20, "seg_id": 41, "translation": { "en": "Law Ching Yan also said he had asked the applicant for his address, intending to make him the recipient of the parcel, but the applicant declined.", "zh-HK": "羅政忻亦表示曾問過申請人的地址，希望由他代收郵包，但申請人不願意。" } }, { "doc_id": 20, "seg_id": 42, "translation": { "en": "The Ruling of the Trial Judge", "zh-HK": "原審法官的裁定" } }, { "doc_id": 20, "seg_id": 43, "translation": { "en": "The trial judge held that the applicant served as a go-between for Law Ching Yan and Lam Hoi Fung by passing on Law Ching Yan’s instructions to Lam Hoi Fung for him to carry out and would share the reward of 1,000 dollars with Lam Hoi Fung.", "zh-HK": "原審法官認定申請人是羅政忻和林凱風的橋樑，負責將羅政忻的指示交由林凱風執行，並會和林凱風一起分攤1,000元的酬勞。" } }, { "doc_id": 20, "seg_id": 44, "translation": { "en": "The trial judge also held that on the day of the incident, the applicant did assist Lam Hoi Fung in collecting the parcel from the Cheung Sha Wan service centre. He had also arranged to meet Law Ching Yan, who would not see Lam personally, but would follow Lam and the applicant and keep them under surveillance.", "zh-HK": "原審法官認定案發當天，申請人有協助林凱風到長沙灣速遞中心收取郵包，而他亦有和羅政忻相約會面，但羅政忻不會和林凱風見面，只會跟隨他們，作出監視。" } }, { "doc_id": 20, "seg_id": 45, "translation": { "en": "The trial judge rejected the applicant’s plea of innocence and held that he acted as a go-between and got a young lad to collect the parcel upon Law Ching Yan’s instructions, and would receive 500 dollars as his reward.", "zh-HK": "原審法官否定申請人無罪的申述。原審法官認定申請人是接獲羅政忻的指示，作為中間人，找一名年青小伙子去收取郵包，更會收取500元酬勞。" } }, { "doc_id": 20, "seg_id": 46, "translation": { "en": "The trial judge stressed that the applicant had time to spare to collect the parcel together with Lam Hoi Fung and that there was no reason why the applicant could not do so. If the collection of the parcel was aboveboard and honest, the applicant should have collected it personally, instead of adopting such a circuitous and deceptive approach.", "zh-HK": "原審法官強調申請人是有時間亦沒有理由不和林凱風一起去收取郵包。如果收取郵包是光明正大行為，申請人應會親自去收取郵包，而無須採用曲折隱瞞的方法去收取郵包。" } }, { "doc_id": 20, "seg_id": 47, "translation": { "en": "The trial judge held that although there was no direct evidence proving that the applicant had possession of the parcel and knew that it contained dangerous drugs, section 47(1), 47(2) and 47(3) were all applicable to the applicant and could prove his guilt.", "zh-HK": "原審法官認定雖然沒有直接證據證明申請人管有該郵包和知悉郵包內藏毒，但《危險藥物條例》第47(1)、47(2)及47(3)條都適用於申請人，可以證明他的罪行。" } }, { "doc_id": 20, "seg_id": 48, "translation": { "en": "The trial judge held that the applicant had “constructive possession” of the parcel in question and the presumption in section 42(2) also applied. He also held that the applicant knew the parcel contained dangerous drugs, and that he was an accomplice of Law Ching Yan and Lam Hoi Fung. The applicant was therefore convicted of the offence of Trafficking in Dangerous Drugs.", "zh-HK": "原審法官裁定申請人有“法律構定管有”該郵包而第42(2)條的推定亦適用。原審法官裁定申請人知悉郵包內藏毒，和羅政忻及林凱風是共犯，原審法官因此裁定申請人販毒罪罪名成立。" } }, { "doc_id": 20, "seg_id": 49, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 20, "seg_id": 50, "translation": { "en": "The two barristers representing the applicant, Charles Chan and William Hui, did not dispute the trial judge’s finding of fact, but submitted that the trial judge erred in his application of the presumption in section 47 of the Dangerous Drugs Ordinance. They submitted that if the trial judge had not erred in that respect, he might have accepted the applicant’s explanation given in his own defence showing that he did not know the parcel contained dangerous drugs.", "zh-HK": "代表申請人的兩名大律師，陳永豪和許祈峰就原審法官作出的事實裁決不表異議，但他們指原審法官就《危險藥物條例》第47條的推論達成的結果有犯錯，而假若原審法官沒有犯錯，他可能會接受申請人自辯的解釋，顯示他對該郵包內藏毒並不知情。" } }, { "doc_id": 20, "seg_id": 51, "translation": { "en": "Mr Chan stressed that according to section 47(1), the “presumption of the possession of dangerous drugs” could only be made when there was “physical possession” of anything containing or supporting a dangerous drug or the keys of the containers involved, and the “constructive possession” of anything containing or supporting a dangerous drug or the keys of the containers involved could not lead to the presumption of the possession of the dangerous drugs contained in those things or the containers involved.", "zh-HK": "陳大律師強調根據第47(1)條“管有危險藥物的推定”只會在“實質管有”容載或支承危險藥物的物件或有關盛器的鑰匙時才能作出，而“法律構定管有”容載或支承危險藥物的物件或有關盛器的鑰匙不能導致管有該些物件或盛器內所載危險藥物的推論。" } }, { "doc_id": 20, "seg_id": 52, "translation": { "en": "Mr Chan asserted that the trial judge only held that the applicant had “constructive possession” as opposed to “physical possession” of the parcel in question; and therefore he could not find the applicant in possession of the cocaine contained in the parcel by relying on section 47(1).", "zh-HK": "陳大律師力稱原審法官裁定申請人只是“法律構定管有”該郵件，而非“實質管有”該郵件，故不應根據第47（1）條裁定申請人管有該郵件所載的可卡因。" } }, { "doc_id": 20, "seg_id": 53, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 20, "seg_id": 54, "translation": { "en": "Section 47 of the Dangerous Drugs Ordinance stipulates that:", "zh-HK": "《危險藥物條例》第47條列明：" } }, { "doc_id": 20, "seg_id": 55, "translation": { "en": "“(1)Any person who is proved to have had in his physical possession –", "zh-HK": "“(1)任何人經證明實質管有-" } }, { "doc_id": 20, "seg_id": 56, "translation": { "en": "anything containing or supporting a dangerous drug;", "zh-HK": "任何容載或支承危險藥物的物件；" } }, { "doc_id": 20, "seg_id": 57, "translation": { "en": "the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug,", "zh-HK": "任何容載危險藥物的行李、公文包、盒子、箱子、碗櫃、抽屜、保險箱、夾萬或其他類似的盛器的鑰匙；" } }, { "doc_id": 20, "seg_id": 58, "translation": { "en": "(2)Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug.", "zh-HK": "(2) 任何人經證明或被推定管有危險藥物，則直至相反證明成立為止，須被推定為已知悉該藥物的性質。" } }, { "doc_id": 20, "seg_id": 59, "translation": { "en": "Section 47(1) provides that any person who has in his physical possession anything containing a dangerous drug or the keys of those containers shall be presumed to have had such drug in the container in his possession. Section 47(2) provides that any person who is proved or presumed to have had a dangerous drug in his possession shall be presumed to have known the nature of such drug. Of course, both presumptions mentioned above can be rebutted.", "zh-HK": "《危險藥物條例》第47（1）條表明當任何人實質管有容載毒品的盛器或該些盛器的鑰匙，則法律推定他管有盛器所載的毒品。第47(2)條則表明任何人經證明或被推定管有毒品，則會被推定知悉毒品的性質。當然上述兩項的推定都是可被推反的推論。" } }, { "doc_id": 20, "seg_id": 60, "translation": { "en": "In law, the possession of dangerous drugs falls into three categories:", "zh-HK": "法律上，管有毒品形式有三類：" } }, { "doc_id": 20, "seg_id": 61, "translation": { "en": "(1)Physical possession, for example, where dangerous drugs were found on someone’s person or in the articles carried by him, the drugs found on his person or in the articles carried by him are in that person’s physical possession.", "zh-HK": "實質管有，例如毒品是在某人身上，或其攜帶的物件內搜出，則其身上或其攜帶物件內的毒品是在該名人士的實質管有下。" } }, { "doc_id": 20, "seg_id": 62, "translation": { "en": "Presumed possession, which is triggered by section 47(1) of the Dangerous Drugs Ordinance.", "zh-HK": "推定管有（presumed possession）是根據《危險藥物條例》第47(1)條所引發的。" } }, { "doc_id": 20, "seg_id": 63, "translation": { "en": "The “constructive possession” referred to by the trial judge, which differs from “presumed possession”. If any person is aware of the existence and nature of a certain article and can at the same time exercise control over it, then even if the article is not in his physical possession, it is still in his “constructive possession”.", "zh-HK": "原審法官所指的“法律構定管有”(Constructive possession)，和推定管有不同。當任何人知悉某物件的存在及性質，而同時對該物件有控制或支配權，則雖然物件並非在其實質管有下，物件是在其“法定構定管有”(Constructive possession)下。" } }, { "doc_id": 20, "seg_id": 64, "translation": { "en": "In his reasons for verdict, the trial judge said that section 47(1), 47(2) and 47(3) were all applicable to the applicant, but he also stated expressly that the applicant had “constructive possession” of that parcel. The trial judge mentioned specifically that “the 2nd defendant (the applicant) instructed the 1st defendant (Lam Hoi Fung) to collect the parcel, and acted as a go-between and issued orders as to the place and time of the collection of the parcel. There is no reason why the 1st defendant had to rush to the express service centre to collect the parcel, nor is there any reason why the 2nd defendant did not collect the parcel together with the 1st defendant.”", "zh-HK": "在其裁決理由書，原審法官雖然指《危險藥物條例》第47(1)、47(2)和47(3)條都適用於申請人，但同時表明申請人是對該郵包有“法定構定管有”(Constructive possession)。原審法官特別強調“第二被告（申請人）指示第一被告（林凱風）去拿取郵包，無論是拿取郵包的地點和時間，都是由作為中間人的第二被告人發號施令，第一被告根本沒有趕去速遞中心收件的理由，而第二被告亦沒有理由不和第一被告一起去收件”。" } }, { "doc_id": 20, "seg_id": 65, "translation": { "en": "In fact, it is an undisputed fact that the applicant knew all along that the parcel was sent to Hong Kong by courier service. He also acted upon Ah Ken’s instructions by telling Lam Hoi Fung to make telephone enquiries with the courier service company and not to go to the false address in Tung Chung to collect the parcel. Subsequently, after learning that the parcel was kept at the Cheung Sha Wan service centre of the courier services company, he arranged with Lam Hoi Fung to go there to collect the parcel. After meeting up with Lam Hoi Fung, the applicant instructed Lam Hoi Fung to go alone to the service centre to collect the parcel, while he and Law Ching Yan waited nearby. He had also telephoned Lam Hoi Fung twice inquiring about the situation while he was waiting.", "zh-HK": "事實上，無爭議的證據顯示申請人由始至終知悉該郵件由外國速遞到香港。他亦是根據阿Ken的指示，叫林凱風打電話向速遞公司查詢及不要去東涌的虛報地址收取該郵包。其後知悉該郵包存放在速遞公司長沙灣服務中心時，他和林凱風相約前往收取。和林凱風會合後，申請人更指示林凱風單獨前往服務中心收取郵件，而他則和羅政忻在附近等候。在等候期間，他更兩次打電話給林凱風查詢情況。" } }, { "doc_id": 20, "seg_id": 66, "translation": { "en": "The aforesaid undisputed evidence shows that the applicant not only knew the existence and movements of the parcel, but also exercised absolute control and dominion over it. Hence, the parcel must be in the applicant’s “constructive possession”.", "zh-HK": "上述無爭議證據顯示申請人不但知悉該郵包的存在及去向，更對其有絕對控制及支配權，該郵包必然是在申請人的“法律構定管有”(Constructive possession)下。" } }, { "doc_id": 20, "seg_id": 67, "translation": { "en": "The applicant had in his possession a parcel with the dangerous drug cocaine inside, not anything containing or supporting cocaine, still less the keys of any containers of cocaine. Hence, the prosecution does not need to rely on the “presumed possession” provided for in section 47(1) of the Dangerous Drugs Ordinance to prove that the applicant was in possession of the cocaine involved.", "zh-HK": "申請人管有的就是載有可卡因毒品的郵包而非容載或支承可卡因毒品的物件，更非容載可卡因盛器的鑰匙，因此控方無須倚賴《危險藥物條例》第47(1)條的“推定管有”(Presumed Possession)，證明申請人管有涉案的可卡因毒品。" } }, { "doc_id": 20, "seg_id": 68, "translation": { "en": "According to section 47(2) of the Dangerous Drugs Ordinance, when the applicant is in possession of the parcel containing cocaine, he shall be presumed to have known the nature of such drug. Of course, the purpose of the section 47(2) presumption is just to impose the “evidential burden of proof” on the defendant, requiring him to adduce evidence to show that he has no knowledge of the nature of the drug in his possession, while the prosecution is still obliged to prove that the defendant knows the nature of the drugs: HKSAR v Hung Chun Wa & Another [2006] 3 HKLRD 841. If the defendant’s explanation that he had no knowledge is accepted, or if his explanation creates any reasonable doubts, the defendant must be acquitted. Even if the defendant’s explanation is totally rejected, provided that there are any doubts in the prosecution evidence regarding the defendant’s knowledge, the defendant must still be acquitted. The burden of proof is upon the prosecution. The prosecution is obliged to prove that the defendant has knowledge of the nature of the drug.", "zh-HK": "當申請人管有載有可卡因毒品的郵包時，根據《危險藥物條例》第47(2)條，他須被推定為已知悉該毒品的性質。當然第47(2)條推定的目的只是施加在被告人身上證據上的舉證責任“evidential burden of proof ”，要被告人提供證據顯示他對其管有毒品的性質並不知情，控方仍需證明被告人對毒品的性質是知情的（見HKSAR v Hung Chan Wa & Another [2006] 3HKLRD 841案）。如被告人不知情的解釋獲接納，或其解釋導致任何合理疑點，被告人需被判無罪。即使被告人的解釋遭全盤否定，但如在被告人是否知情一事上，控方的證據有任何疑點，被告人仍需被判無罪，原因是舉證責任仍在控方。控方需證明被告人對毒品的性質是知情的。" } }, { "doc_id": 20, "seg_id": 69, "translation": { "en": "Since the applicant in this case is in “constructive possession” of the cocaine inside the parcel, section 47(2) of the Dangerous Drugs Ordinance thus imposes upon him an evidential burden of proof.", "zh-HK": "在本案申請人“法律構定管有”該郵包內的可卡因毒品，因此《危險藥物條例》第47(2)條會施加在他身上證據的舉證責任。" } }, { "doc_id": 20, "seg_id": 70, "translation": { "en": "Although the applicant gave evidence in court, his evidence was totally rejected by the trial judge. His evidence also failed to create any doubts showing that he had no knowledge of the nature of the dangerous drugs cocaine in the parcel. Mr Chan did not raise any disputes in that regard.", "zh-HK": "雖然申請人有作供，但他的證供遭原審法官全盤否定。他的證供亦沒有引發出任何疑點，顯示他對該郵包內可卡因毒品的性質不知情。對此，陳大律師亦不表異議。" } }, { "doc_id": 20, "seg_id": 71, "translation": { "en": "According to the applicant, Law Ching Yan had promised to give him 1,000 dollars as a reward for collecting the parcel. As the trial judge had rightly pointed out, the reward of 1,000 dollars for such a simple task as collecting a parcel was definitely a very attractive way of making quick money, which under normal circumstances would not happen at all. And if the applicant had not known the nature of the contents of the parcel, he would not have “given away” to Lam Hoi Fung the whole or half of the easy money of 1,000 dollars.", "zh-HK": "根據申請人所稱，羅政忻曾答應給他1,000元的酬勞去收取郵件。誠如原審法官正確指出，1,000元作為收取郵包這麼簡單工作的酬勞，絕對是很有吸引力的賺取快錢的方法。正常的情況，給予重酬去收取郵包的狀況根本不會發生，而假如申請人不是知道郵包所載物品的性質，他更不會將這麼容易賺取的1,000元的全部或一半“轉送給”林凱風。" } }, { "doc_id": 20, "seg_id": 72, "translation": { "en": "I cannot disregard the undisputed evidence showing that the applicant was essentially staying with Lam Hoi Fung throughout the incident, giving him instructions and observing his every move in the collection of the parcel. As the trial judge had stressed that if the act was aboveboard and honest, the applicant would not have adopted such a circuitous and deceptive approach to collect the parcel. There is nothing in the evidence providing any plausible reasons which explain why the applicant displayed such extremely unusual behaviour. According to the prosecution case and since the applicant failed to give any plausible reasons to explain, rebut or overturn the prosecution’s evidence, a reasonable and irresistible inference to be drawn must be that the applicant all along knew the parcel contained dangerous drugs.", "zh-HK": "本席不能忽視無爭議的證據顯示申請人基本是全程和林凱風一起，指示及監控他提取該郵包的一舉一動。誠如原審法官強調，如果申請人的行為光明正大，他不會用這麼曲折隱瞞的方法去收取一件郵包。證據亦沒有顯示有任何其他可信的理由去解釋申請人極不尋常的行為。根據控方案情及在申請人沒有提出可信的理由去解釋，反駁或推反控方的證據時，一項合理及無可抗拒的推論必然是申請人由始至終都知悉該郵包內載有毒品。" } }, { "doc_id": 20, "seg_id": 73, "translation": { "en": "Although the trial judge had mentioned section 47(1) of the Dangerous Drugs Ordinance, he in fact did not need to rely on the presumption provided for in that section. A careful analysis of the trial judge’s reasons for verdict reveals that the applicant was held to be in “constructive possession” of the parcel, and the irresistible inference is that the applicant knew the parcel contained dangerous drugs.", "zh-HK": "雖然原審法官有提及《危險藥物條例》第47(1)條，但事實上原審法官無需依賴該條款的推論，而細心分析，原審法官的裁決理由書顯示原審法官是裁定申請人是對該郵件有“法律構定管有”(constructive possession)，而不可抗拒的推論亦是申請人知悉該郵件內載有毒品。" } }, { "doc_id": 20, "seg_id": 74, "translation": { "en": "Mr Chan submitted that if the trial judge had not made the mistake relating to section 47(1) of the Dangerous Drugs Ordinance, he might have accepted the applicant’s account that he believed that the parcel contained game cartridges. I disagree. If the applicant believed that the parcel contained game cartridges, he definitely would not handle the parcel in the suspicious manner mentioned above. It is absolutely correct for the trial judge to reject the applicant’s explanations.", "zh-HK": "陳大律師指如原審法官沒有就《危險藥物條例》第47(1)條犯錯，他可能會接納申請人指以為該郵包是遊戲機帶的說法。本席不認同，如申請人以為郵包是遊戲機帶，他絕對不會以上述可疑方法處理該郵包。原審法官不接納申請人的解釋是絕對正確的。" } }, { "doc_id": 20, "seg_id": 75, "translation": { "en": "The applicant was in “constructive possession” of the cocaine involved in this case, and had failed to discharge the burden of proof placed on him by the Dangerous Drugs Ordinance to rebut the presumption. The irresistible inference is that he knew the nature of the contents of the parcel were dangerous drugs. There are not any doubts which conflict with the inference. Taking into account the quantity of the cocaine involved and the fact that it was delivered to Hong Kong from abroad through an courier services company, the applicant must have been trafficking in dangerous drugs or possessing the dangerous drugs for the purpose of trafficking.", "zh-HK": "申請人“法律構定管有”涉案的可卡因毒品。申請人不能成功推反《危險藥物條例》施加在他身上的舉證責任，不可抗拒的推論是申請人對郵包內藏毒品的性質是知情的，亦沒有任何疑點和該推論有任何衝突。考慮到涉案可卡因毒品的份量及是透過速遞公司由外國運抵香港，申請人必然是販運毒品或將毒品用作販運用途。" } }, { "doc_id": 20, "seg_id": 76, "translation": { "en": "The trial judge’s misunderstanding over section 47(1) of the Dangerous Drugs Ordinance did not affect his decision of convicting the applicant. I can see nothing unsafe and unsatisfactory about the decision to convict the applicant of trafficking in dangerous drugs. The trial judge’s mistake about section 47(1) of the Dangerous Drugs Ordinance had actually no substantive effect on the verdict in this case. Hence I am of the view that this court does not need to invoke the “proviso”. I dismiss the applicant’s application in relation to his conviction.", "zh-HK": "原審法官對《危險藥物條例》第47(1)條的誤解，不影響他作出裁定申請人有罪的決定。對申請人被裁定販運毒品罪罪名成立，本席不覺有任何不穩妥之處。原審法官就《危險藥物條例》第47(1)條所犯的錯誤，對案件的裁決並無實質的影響，故本席認為法庭無需使用「但書」。本席駁回申請人就定罪的申請。" } }, { "doc_id": 20, "seg_id": 77, "translation": { "en": "Tang VP:", "zh-HK": "上訴法庭副庭長鄧國楨:" } }, { "doc_id": 20, "seg_id": 78, "translation": { "en": "By a majority, we grant the applicant’s application for leave to appeal but invoke the “proviso”. We dismiss his appeal unanimously.", "zh-HK": "本庭以大多數決定，批准申請人的上訴許可申請，但行使「但書」。本庭一致駁回申請人的上訴。" } }, { "doc_id": 20, "seg_id": 79, "translation": { "en": "Ms Mary Sin, Senior Assistant Director of Public Prosecutions, Department of Justice, for the respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員冼佩霞代表。" } }, { "doc_id": 20, "seg_id": 80, "translation": { "en": "Mr Charles Chan and William Hui, instructed by Ivan Tang & Co., for the applicant", "zh-HK": "申請人：由鄧耀榮律師行轉聘陳永豪大律師及許祈峰大律師代表。" } }, { "doc_id": 21, "seg_id": 1, "translation": { "en": "Hon Yuen JA (giving the Judgment of the Court):", "zh-HK": "高等法院上訴法庭法官袁家寧頒發上訴法庭判案書:" } }, { "doc_id": 21, "seg_id": 2, "translation": { "en": "The two applicants in DCCC 755/2012 were charged with one count of “conspiracy to offer advantages to an agent”, contrary to section 9(2)(b) of the Prevention of Bribery Ordinance, Cap. 201 (“PBO”) and section 159A of the Crimes Ordinance, Cap. 200.", "zh-HK": "兩名申請人在DCCC755/2012案 ，均被控一項 “串謀向代理人提供利益” 罪，違反香港法例第201章《防止賄賂條例》第9(2)(b)條及第200章《刑事罪行條例》第159A條。" } }, { "doc_id": 21, "seg_id": 3, "translation": { "en": "They were convicted by District Judge Sham on 2 January 2013. The judge sentenced each of them to 28 months’ imprisonment.", "zh-HK": "2013年 1 月2日, 區域法院沈小民法官裁定兩名申請人罪名成立。沈法官判處各申請人監禁28個月。" } }, { "doc_id": 21, "seg_id": 4, "translation": { "en": "The two applicants apply for leave to appeal the convictions. The 1st applicant initially also applied for leave to appeal his sentence but subsequently abandoned the application.", "zh-HK": "兩名申請人申請許可，就定罪提出上訴，第一申請人原本亦申請就刑期提出上訴，但後來放棄了就刑期的上訴申請。" } }, { "doc_id": 21, "seg_id": 5, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 21, "seg_id": 6, "translation": { "en": "The two applicants were the persons-in-charge of “Sunshine Traffic Engineering and Contractors Company Limited” (“STE”). STE was a sub-contractor of a project “12/WSD/06”, the main contractor of which was “China National Chemical Engineering Hongkong Limited” (“CNCHK”). Mr Tai Kee-cheong, Eric (“Tai”) was an assistant project manager at CNCHK.", "zh-HK": "兩名申請人為一間名為 “新輝交通工程及建築有限公司”(以下簡稱“新輝”)的負責人。“新輝”是一項 “12/WSD/06”工程的二判，大判是 “中國化學工程香港有限公司” (以下簡稱“中化”)。“中化” 的助理項目經理是戴既昌 (以下簡稱“戴”)。" } }, { "doc_id": 21, "seg_id": 7, "translation": { "en": "The two applicants were charged with offering bribes to Tai in the total sum of $990,000, consisting of monthly payments of $30,000, for three years between July 2007 and January 2011, for the purpose of making STE’s work smoother.", "zh-HK": "兩名申請人被控由2007年7月至2011年1月三年內，向“戴”提供每月$30,000， 一共$990,000賄款，讓“新輝”工作順利一些。" } }, { "doc_id": 21, "seg_id": 8, "translation": { "en": "There are two more points to be noted about the background of the 2nd applicant. First, throughout the said period he was a signatory to STE’s bank account, although there was a time when he was neither a director nor a shareholder of STE. Second, during that period, with knowledge of his connection with STE, CNCHK hired him as Chief Supervisor of the site.", "zh-HK": "有關第二申請人的背景，還要提出兩點。首先，在該段時間內，有一段時間他不是“新輝”的董事或股東，但他整段時間都是“新輝”的銀行戶口的簽署人。另外，在該段時間內，“中化”在知道他與“新輝”的關係下，聘請了他為地盤總監。" } }, { "doc_id": 21, "seg_id": 9, "translation": { "en": "Facts of the case", "zh-HK": "案情" } }, { "doc_id": 21, "seg_id": 10, "translation": { "en": "According to the prosecution, on 9 March 2011, the two applicants approached the ICAC on their own initiative and complained to an officer on duty named Fong (PW1) that Tai had cheated them and solicited advantage from them.", "zh-HK": "控方指出，在2011年3月9日，兩名申請人主動到廉政公署，向當值的方主任 (PW1) 投訴 “戴”欺騙他們及向他們索取利益。" } }, { "doc_id": 21, "seg_id": 11, "translation": { "en": "At trial, in advancing its case, the prosecution relied on what the applicants had told PW1 in their complaint (“words of complaint”) and records of their subsequent video-recorded interviews under caution.", "zh-HK": "審訊時，控方便是依賴他們投訴時向PW1所說的話 (以下簡稱“投訴說話”)，與及他們其後在警誡下的錄影會面記錄，提出控告。" } }, { "doc_id": 21, "seg_id": 12, "translation": { "en": "The trial judge ruled that the records of the video-recorded interviews were inadmissible because in the interviews the ICAC officers had mixed up the applicants’ capacity as complainants and suspects. However, the judge ruled that the words of complaint were admissible and those words showed that the applicants had committed the offence of “conspiracy to offer advantages to an agent”.", "zh-HK": "原審法官裁定錄影會面記錄不應呈堂，理由是廉署人員在該會面中，混淆了申請人的投訴人與及疑犯的身份。但法官裁定“投訴說話”可作為呈堂證供，而該些說話顯示兩人干犯了“串謀向代理人提供利益” 罪。" } }, { "doc_id": 21, "seg_id": 13, "translation": { "en": "The two applicants’ words of complaint, as repeated by PW1, were divided into the following three parts at trial:", "zh-HK": "PW1重述兩名申請人的“投訴說話”，在原審時被分為三部份，如下:" } }, { "doc_id": 21, "seg_id": 14, "translation": { "en": "Part I", "zh-HK": "第一部份" } }, { "doc_id": 21, "seg_id": 15, "translation": { "en": "“When the contract was first awarded, namely, in (20)07 when the contract of the Water Supplies Department was awarded, Mr Tai, an assistant project manager at CNCHK, received from them a sum of $30,000 per month, in cash for the first few months. (This) could make the work smoother.”", "zh-HK": "「初初得到這份合約的時候，即07年得到呢個水務署的contract， 中化的assistant project manager 戴先生向他們收受每月3萬蚊嘅錢，頭幾個月係畀現金佢， 可令工作順利啲」。" } }, { "doc_id": 21, "seg_id": 16, "translation": { "en": "Part II", "zh-HK": "第二部份" } }, { "doc_id": 21, "seg_id": 17, "translation": { "en": "“They were shareholders and directors of STE. Since CNCHK was the main contractor of STE (and) Mr Tai was the assistant project manager of the main contractor, he was given $30,000 per month. Cash was given during the first few months. Thereafter, at Mr Tai’s request, $30,000 was deposited into the account of one of Mr Tai’s companies, namely, Kei Cheong (Engineering) Company. It was said that (this) could help make their work smoother.”", "zh-HK": "「他們是新輝的股東及董事，因為中化是新輝的大判，戴先生是大判的assistant project manager，每月給予他3萬蚊，頭嗰幾個月就畀現金，之後就應戴生要求，將3萬蚊嘅錢入落戴生其中一間公司，其昌公司的戶口，說可幫助他們工作順利的。」" } }, { "doc_id": 21, "seg_id": 18, "translation": { "en": "Part III", "zh-HK": "第三部份" } }, { "doc_id": 21, "seg_id": 19, "translation": { "en": "“Towards the end of 2010, Mr Tai requested that 30 per cent of STE’s shares be transferred to him. The transfer was made, the reason being to help them obtain project payments a bit more smoothly. ”", "zh-HK": "「到2010年尾的時候，戴生要求將新輝30 per cent 嘅 shares 轉給戴先生，並且有轉到，原因是可以幫助他們順利小小取得工程款項。」" } }, { "doc_id": 21, "seg_id": 20, "translation": { "en": "Verdict at trial", "zh-HK": "原審裁決" } }, { "doc_id": 21, "seg_id": 21, "translation": { "en": "At trial, the defence took the view that having heard Part I, PW1 already had reasons to believe that the speakers had committed bribery and hence he should have administered a caution at that point. The prosecution, on the other hand, took the view that it was only after hearing both Parts I and II that PW1 had reasons to believe that the speakers had committed bribery and hence had to administer a caution. PW1, however, testified that in his view, only after hearing Parts I, II and III did he have reasons to believe that the speakers had committed bribery, and hence it was only at that point that he stopped the interview, sought instructions from his supervisor and administered a caution to the applicants.", "zh-HK": "原審時，辯方認為PW1聽完第一部份後，便有理由相信說話者干犯了賄賂罪行，所以他應該即時作出警誡。控方則認為PW1聽完第一及第二部份後，才有理由相信說話者干犯了賄賂罪行，這時候才需作出警誡。PW1在他的證供中則說，他認為聽完第一、二及三部份後，他才有理由相信說話者干犯了賄賂罪行，所以那時他才停止會面，向上司請示，及向申請人施行警誡。" } }, { "doc_id": 21, "seg_id": 22, "translation": { "en": "The trial judge considered that, having heard the applicants’ complaint, PW1 needed some time to take in what they said and discern that they were also suspects. Therefore, it was not improper for him to stop the interview, seek instructions from his supervisor and administer a caution only after he heard Part III. In fact, at trial the defence also accepted that it was unreasonable to expect that PW1 could caution the applicants before he finished hearing Part I of the words of complaint. Importantly, in any event, the trial judge took the view that Part 1 had already disclosed that the applicants had offered advantages to Tai and hence had committed the relevant offence.", "zh-HK": "原審法官認為PW1從兩名申請人聽到投訴時，是需要一段時間才能消化到他們亦是疑犯，所以他聽完第三部份，才停止會面，向上司請示，及作出警誡，是無可厚非。其實原審時，辯方都接受不能合理期待PW1可在 “投訴說話”第一部份完結之前警誡申請人。重要的，是無論如何，原審法官認為第一部份已披露了申請人向 “戴”提供利益，而干犯有關罪行。" } }, { "doc_id": 21, "seg_id": 23, "translation": { "en": "The trial judge also found that the words of complaint were true because the amounts paid to Tai were supported by cheques, and the fact that the monetary transaction took place in the dark served to indicate that the applicants knew that Tai’s employer did not allow him to accept those sums of money.", "zh-HK": "原審法官亦裁定“投訴說話”是真誠的，因為給予 “戴”的款項是有支票支持，而錢銀交易暗地裏進行，顯示申請人知道 “戴”的僱主是不容許他收取該些款項的。" } }, { "doc_id": 21, "seg_id": 24, "translation": { "en": "The trial judge further found that, even if the 2nd applicant spoke less than the 1st applicant when making the complaint and PW1 could not recall what the 2nd applicant said, the two applicants insisted on being together, which indicated that the 2nd applicant was taking part in making the complaint and not merely accompanying the 1st applicant. The 2nd applicant had also taken part in signing the cheques issued to Tai. Therefore, the trial judge found that they were conspirators who had agreed to offer bribes to Tai and the words of complaint uttered by the 1st applicant could be used against the 2nd applicant.", "zh-HK": "原審法官亦裁定，即使投訴時第二申請人比第一申請人少說話而PW1忘記了第二申請人所說的話，但兩名申請人堅持要一起，顯示第二申請人是有份參與投訴，而不只是陪同第一申請人。第二申請人亦有份簽發支票給 “戴”，所以原審法官裁定他們是有協議向 “戴”提供賄款的串謀者，而第一申請人所說的“投訴說話”可針對第二申請人。" } }, { "doc_id": 21, "seg_id": 25, "translation": { "en": "The trial judge found both applicants guilty as charged.", "zh-HK": "原審法官裁定兩名申請人，均罪名成立。" } }, { "doc_id": 21, "seg_id": 26, "translation": { "en": "CACC 36/2013", "zh-HK": "CACC36/2013" } }, { "doc_id": 21, "seg_id": 27, "translation": { "en": "The grounds of appeal put forward by the two applicants are mostly identical, although the 2nd applicant has advanced two more grounds of appeal. We will now deal with the grounds of appeal one by one.", "zh-HK": "兩名申請人所提出的上訴理由 ，大部份相同，只不過第二申請人個别提出多兩項上訴理由，本庭以下會逐一討論。" } }, { "doc_id": 21, "seg_id": 28, "translation": { "en": "Are the words of complaint admissible as evidence under the law?", "zh-HK": "“投訴說話”在法律上可否呈堂作為證據?" } }, { "doc_id": 21, "seg_id": 29, "translation": { "en": "The first ground of appeal put forward by the two applicants relates to the question of whether the words of complaint are admissible as evidence. At trial, the applicants did not object to Part I being adduced as evidence. However, they now take the position that none of the words of complaint can be adduced as evidence because it would be contrary to section 30A(1)(a) of the PBO. We stress that the applicants are relying only on section 30A(1)(a) of the PBO, and not on the common law or the Bill of Rights. Moreover, this ground of appeal purely concerns a question of law and does not involve any discretion of the court.", "zh-HK": "兩名申請人所提出的第一項上訴理由，是有關 “投訴說話”在法律上可否呈堂作為證據。原審時，申請人沒有反對第一部份說話呈堂，但 申請人現時的立場，是全部“投訴說話” 在法律上都不能呈堂作為證據，因為這樣做違反 《防止賄賂條例》第30A(1)(a)條。本庭強調本案申請人只是依賴《防止賄賂條例》第30A(1)(a)條，沒有依賴普通法或人權法。另外，這上訴理由純粹是法律上的議題，不涉及法庭的酌情權。" } }, { "doc_id": 21, "seg_id": 30, "translation": { "en": "Section 30A provides as follows:", "zh-HK": "第30A條如下:" } }, { "doc_id": 21, "seg_id": 31, "translation": { "en": "(1) Save as provided in subsection (2) -", "zh-HK": "(1) 除第(2)款另有訂定外─" } }, { "doc_id": 21, "seg_id": 32, "translation": { "en": "(a) no information for an offence under this Ordinance shall be admitted in evidence in any civil or criminal proceeding; and", "zh-HK": "(a) 就本條例所訂罪行而獲得的資料，不得在任何民事或刑事程序中接納為證據；及" } }, { "doc_id": 21, "seg_id": 33, "translation": { "en": "(b) no witness in any civil or criminal proceeding shall be obliged -", "zh-HK": "(b) 在任何民事或刑事程序中，如曾就本條例所訂罪行向專員舉報資料的人或曾就該罪行向專員提供任何協助的人並非該程序中的證人，則該程序中的任何證人無須─" } }, { "doc_id": 21, "seg_id": 34, "translation": { "en": "(i) to disclose the name or address of any informer who has given information to the Commissioner with respect to an offence under this Ordinance or of any person who has assisted the Commissioner in any way with respect to such an offence; or", "zh-HK": "(i) 披露該舉報人或協助人的姓名或地址；或" } }, { "doc_id": 21, "seg_id": 35, "translation": { "en": "(ii) to answer any question if the answer thereto would lead, or would tend to lead, to discovery of the name or address of such informer or person, if, in either case, such informer or person is not himself a witness in such proceeding,", "zh-HK": "(ii) 回答任何問題，如該問題的答案會致使或可能致使該舉報人或協助人的姓名或地址被揭露，" } }, { "doc_id": 21, "seg_id": 36, "translation": { "en": "and, if any books, documents or papers which are in evidence or liable to inspection in any civil or criminal proceeding contain an entry in which any such informer or person is named or described or which might lead to his discovery, the court shall cause all such passages to be concealed from view or to be obliterated so far as may be necessary to protect the informer or such person from discovery.", "zh-HK": "又在任何民事或刑事程序中，作為證據或可受查閱的任何簿冊、文件或字據，如載有的材料包含該舉報人或協助人的姓名或描述，或可能致使其身分被揭露，則法庭為保護該舉報人或協助人免其身分被揭露，須着令將該材料的一切有關部分遮掩或塗去。" } }, { "doc_id": 21, "seg_id": 37, "translation": { "en": "(2) If in any proceeding before a court for an offence under this Ordinance the court, after full inquiry into the case, is satisfied that an informer wilfully made a material statement which he knew or believed to be false or did not believe to be true, or if in any other proceeding a court is of opinion that justice cannot be fully done between the parties thereto without disclosure of the name of an informer or a person who has assisted the Commissioner, the court may permit inquiry and require full disclosure concerning the informer or such person.”", "zh-HK": "(2) 為本條例所訂罪行而進行法律程序的法庭經全面研訊該個案後，如信納舉報人在要項上故意作出明知或相信為虛假或不相信為真實的陳述，或在其他法律程序中，法庭認為如不披露舉報人或曾協助專員的人的姓名，會令該程序的當事人不能得到完全公正的處理，則有關法庭可准許查詢及可要求詳盡披露有關該舉報人或協助人的事項。" } }, { "doc_id": 21, "seg_id": 38, "translation": { "en": "The question of law before us is whether section 30A(1) (“the provision”), including section 30A(1)(a), applies to the present case.", "zh-HK": "本庭所需考慮的法律問題，是第30A(1)條 (以下簡稱“該條文”)，包括第30A(1)(a)條，是否適用於本案的情況。" } }, { "doc_id": 21, "seg_id": 39, "translation": { "en": "We have considered the materials provided by counsel for the parties, including the Hansard and the Explanatory Memorandum to the bill containing the provision. The Hong Kong Court of Final Appeal has established that in interpreting a statute, the court must take into account the natural and ordinary meaning of the words, the purpose of the statutory provision, as well as its context, including other statutory provisions and the general law (see HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568).", "zh-HK": "本庭已考慮了各大律師所提供的資料，包括有關“該條文”法案的Hansard及摘要說明。香港終審法院已確立，考慮條例的釋義時，法庭必須考慮文字的自然及通常的意思(natural and ordinary meaning of the words)，條例的目的(purpose of the statutory provision)，與及條例的上下文，包括其他條文與及一般法理 (context, including other statutory provisions and the general law ) (看HKSAR v Cheung Kwun Yin譯音張冠賢 (2009) 12 HKCFAR 568)。" } }, { "doc_id": 21, "seg_id": 40, "translation": { "en": "Adopting the above approach to interpretation, we are of the view that the contents of the provision as a whole clearly shows that the purpose of the provision is to protect the confidentiality of information used to report others, but not to offer immunity to an informer so as to exclude evidence which should otherwise be admissible against the informer himself.", "zh-HK": "本庭認為，採用以上的釋義方法 ，整體內容明確顯示“該條文”的目的是保障用來舉報他人的資料保密，而不是給予資料提供者一種特赦，令到本應可以呈堂以針對他本人的證據變成獲得豁免。" } }, { "doc_id": 21, "seg_id": 41, "translation": { "en": "The purpose of the provision is expressed to be the protection of informers “from discovery”. It is the identity of an informer which is being protected “from discovery” (see page 846 of the Hansard of Prevention of Bribery (Amendment) Bill 1980: “when [the public] make complaints or give information to [the ICAC], their identity will not be disclosed without their consent”. See also paragraph 10 on page C128 of the Explanatory Memorandum to the Bill: “one of the important factors in eradicating corruption is to convince the public that having made a report to the ICAC, one’s identity will definitely not be disclosed by the ICAC without one’s consent”) (emphasis added). Given that the identity of an informer is known to the authorities, it is obvious that the protection in place is to prevent others (e.g. the person being reported) from knowing who the informer is. Apart from the name and address, information provided by an informer may also provide a lead to the identity of the informer. Therefore, the provision also protects such information.", "zh-HK": "“該條文”明文的目的，是給予舉報人不會 《被揭露》的保障 (protection of informers “from discovery”)。防避《被揭露》的，是舉報人的身份 (看1980《防止賄賂(修訂)法案》之Hansard第846頁: “when [the public] make complaints or give information to [the ICAC], their identity will not be disclosed without their consent”，又看該法案的摘要說明第C128頁第十段 “撲滅貪污之一項重要因素，乃使市民相信向廉政公署舉報後，該署如未得其同意，決不將其身份透露”)(斜體後加，以示強調)。既然當局知道舉報人的身份，明顯地保障是為防止他人(例如被舉報的人)知道誰是舉報人。除了姓名及住址之外，舉報人所提供的資料亦可能會露出蛛絲馬跡，令到他人可以推測到舉報人的身份，所以“該條文”亦保障這些資料。" } }, { "doc_id": 21, "seg_id": 42, "translation": { "en": "The context of the provision also makes it clear that section 30A(1) only covers the protection of an informer’s identity from discovery by others (e.g. the person being reported). Section 30A(1) is subject to section 30A(2), which expressly contemplates that in some cases injustice may be caused if the information reported is kept confidential.", "zh-HK": "“該條文”的上下文，亦清楚顯示第30A（1）條只是適用於保障舉報人的身份不會披露給他人 (例如被舉報的人) 。第30A（1）條是受制於第30A（2）條，而第30A（2）條明文預料有他人可能因舉報資料保密而蒙受不公。" } }, { "doc_id": 21, "seg_id": 43, "translation": { "en": "In fact, it has been long established under the common law that the identity of an informer is to be kept confidential so that it would not be known by an accused (i.e. the person being reported). The case of Marks v Beyfus [1890] 25 QBD 494 has clearly stated the scope of protection under the common law. However, there is a significant difference between the common law and section 30A regarding the kind of proceedings in which a court would order disclosure of the identity of an informer for the purpose of achieving justice. Under section 30A(2), such proceedings are confined to proceedings other than those under the PBO, whereas there is no such limitation under the common law. However, this difference between the common law and section 30A(2), as well as the question of whether section 30A(2) is unconstitutional in light of the right of an accused (i.e. the person being reported) to be informed as required by the Bill of Rights, is irrelevant to and has not been raised in the present case and therefore do not require further discussion and explanation. We bring up this point at this juncture for the purpose of expressing our disagreement with the respondent’s proposition that section 30A simply codifies the common law.", "zh-HK": "其實普通法早已有案例，將舉報人的身份保密，防止被告人 (即被舉報人)知道。Marks v Beyfus [1890] 25 QBD 494一案已清楚述明普通法所提供的保障的範疇。但普通法與第30A條有一項重大分別，就是在哪些法律程序裏法庭會因應公義的需要，而命令披露舉報人的身份。第30A(2)條局限於《防止賄賂條例》以外的法律程序，但普通法沒有這局限。然而有關普通法與第30A(2)條這方面的分別、與及在被告人(即被舉報的人)人權法知情權下第30A(2)條是否違憲，這些議題與本案無關、亦在本案中沒有出現，所以本庭無需鑽研及詳述。本庭在這裏提出這一點，是為指出本庭不贊同答辯人就第30A條只是將普通法編纂(codify)這說法。" } }, { "doc_id": 21, "seg_id": 44, "translation": { "en": "The respondent also points out that under the common law the above protection did not apply to the present case because the applicants were accomplices of Tai. The respondent cites a Court of Appeal case of Chu Piu Wing v Attorney General CACV 84/1984 (4.9.1984), in which Chu admitted to the ICAC that he had bribed some police officers, but he provided further information on condition that he would neither repeat what he had said nor give evidence against those police officers in court. Subsequently, certain disciplinary charges were laid by the police against some of those police officers and Chu was called to give evidence. He refused to testify and was found to be in contempt of court. He appealed on the ground that as an informer, his identity and the information that he had provided were not subject to disclosure. He cited the abovementioned case of Marks v Beyfus in support.", "zh-HK": "答辯人亦指出，在普通法下，上述的保障不會適用於本案，因為申請人是 “戴”的從犯 （accomplice）。答辯人援引上訴法庭一宗案件。在Chu Piu Wing (譯音朱飄榮 ) v Attorney General CACV84/1984 (4.9.1984)一案, “朱”向 廉政公署承認曾經賄賂過一些警員，但他提供進一步資料的條件，是他不會重複他所說的話、或在庭上指控警員。後來警方以內部紀律程序檢控一些警員，並傳召“朱”作供。他拒絕作供，被判藐視法庭。他提出上訴，理由是他身為線人，他的身份及所提供的資料都不可以被披露。他援引上述Marks v Beyfus案例。" } }, { "doc_id": 21, "seg_id": 45, "translation": { "en": "The Court of Appeal dismissed this argument. The Court took the view that the confidentiality given by the common law to an informer was based on public policy. The question to be considered, as the Court of Appeal stated it, was: “Can it be said that [Chu] belongs to a class of persons constituting a source of information so valuable to the police that the possible disclosure of identity might adversely affect the public interest by causing that source substantially to diminish or even dry up?” The Court of Appeal was of the view that Chu, as an accomplice, did not belong to that class of persons and that to protect him would adversely affect the public interest. Therefore, the protection for informers was not available to Chu (although in the end the Court of Appeal held, for other reasons, that Chu did not have to testify).", "zh-HK": "上訴法庭駁回這說法。上訴法庭認為普通法給予線人保密的基礎，是公共政策。上訴法庭考慮的問題， 是“朱”是否屬於對警方提供有價值資料、披露其身份會令到資料來源削減而損害公共利益的那一類別人士? (“Can it be said that [Chu] belongs to a class of persons constituting a source of information so valuable to the police that the possible disclosure of identity might adversely affect the public interest by causing that source substantially to diminish or even dry up?”) 上訴法庭認為 “朱”身為從犯，並不屬於那類別人士，保障他會損害公共利益，因此“朱”不獲得線人的保障(雖然上訴法庭最終都基於其他理由豁免他作供)。" } }, { "doc_id": 21, "seg_id": 46, "translation": { "en": "On the question of accomplice, counsel for the 2nd applicant referred to section 22 of the PBO ( “Person giving or receiving bribe not to be regarded as an accomplice”) and submitted that the applicant was not an accomplice of Tai. However, in our view, the purpose of section 22, which comes under Part IV of the PBO, is to remove the technical limitation on the admissibility of evidence given by an accomplice. In any event, the need for section 22 has been removed by section 60 of the Criminal Procedure Ordinance, Cap. 221 (McWalters, Bribery and Corruption Law in Hong Kong (2nd ed.), page 650). Therefore, we do not accept the submission made by counsel for the 2nd applicant regarding accomplice.", "zh-HK": "就從犯這一點，第二申請人的大律師援引《防止賄賂條例》第22條( “給予或收取賄賂的人不作從犯看待”)，說申請人並非 “戴”的“從犯”。但本庭認為，第22條載於《防止賄賂條例》第IV 部內，目的是在消除有關接納“從犯”證據的技術限制。無論如何，自從第221章《刑事程序條例》第60條訂立後，第22條已失去意義 (Bribery and Corruption Law in Hong Kong, McWalters 2nd ed.第650頁)。因此，本庭不接納第二申請人的大律師有關從犯的陳詞。" } }, { "doc_id": 21, "seg_id": 47, "translation": { "en": "In any event, we are of the view that, as the applicants are only relying on section 30A(1)(a), it is not necessary for us to consider the scope of or limitation on the protection given to informers under the common law, or to comment on the abovementioned case of Chu.", "zh-HK": "無論如何，本庭認為申請人只是援引第30A(1)(a)條，所以本庭並不需要考慮普通法下，線人受保障的範圍或限制，亦不需要評論上述 “朱”一案。" } }, { "doc_id": 21, "seg_id": 48, "translation": { "en": "We are satisfied that, having regard to its purpose and context, section 30A(1), including section 30A(1)(a), only serves to protect an informer’s information from discovery by others (e.g. the person being reported), so as to prevent the latter from knowing the identity of the former. In the present case, if Tai was prosecuted for the offence of accepting advantages, the information provided by the applicants would be protected by the provision. However, it does not mean that the applicants would, in their trial, automatically be entitled to the above exclusion from admissibility. We do not think that was the purpose or intent of the legislature in enacting the provision.", "zh-HK": "本庭確認，從其目的及上下文，第30A（1）條，包括第30A(1)(a)條，只是適用於保障舉報人的資料不會披露給他人(例如被舉報的人)，以防後者得悉前者的身份。在本案的情況而言，若然 “戴”被檢控收受利益罪的話，申請人所提供的資料便會受 “該條文”保障。但這不等如申請人可以在自己的審訊中，自動獲得上述的呈堂豁免。本庭認為這並不是立法會訂立“該條文”的目的或意思。" } }, { "doc_id": 21, "seg_id": 49, "translation": { "en": "When should a caution be given?", "zh-HK": "哪時候應該給予警誡?" } }, { "doc_id": 21, "seg_id": 50, "translation": { "en": "It is convenient at this juncture to discuss another ground of appeal, namely that PW1 did not caution the applicants until after Part III was concluded. The applicants contend that, had PW1 cautioned them earlier, they would have had an opportunity to consider whether to continue the conversation or decide to remain silent from then on.", "zh-HK": "在這階段方便討論另一項上訴理由，即有關PW1到第三部份完結，才對申請人作出警誡。申請人認為，若果PW1早一些作出警誡，申請人便會有機會考慮是否繼續說下去，或決定從此保持緘默。" } }, { "doc_id": 21, "seg_id": 51, "translation": { "en": "The undisputed legal principle is that when a law enforcement officer has objective grounds for suspecting that a person has committed an offence, he should administer a caution to that person, even though the evidence may not be sufficient to support a prima facie case of guilt (see R v Nelson and Rose [1998] 2 Cr App R 399, 404). The question in the present case is the point of time at which, objectively, PW1 should have had reasonable grounds for suspecting that the applicants had committed an offence.", "zh-HK": "不爭的法律原則，是當一名執法人員客觀上有理由懷疑一名人士干犯了罪行，他便應該施行警誡，即使證據未足以表面上定罪 (看 R v Nelson and Rose [1998] 2 Cr App R 399, 404)。問題是在本案中，哪時候PW1客觀上是應該合理懷疑申請人干犯了罪行。" } }, { "doc_id": 21, "seg_id": 52, "translation": { "en": "At trial, the applicants took the stance that before the end of Part I, PW1 would not have had reasonable grounds to suspect that the applicants had committed any offence. However, the trial judge was of the view that, solely on the basis of Part I, he had “already reached the only conclusion that the prosecution had proved the charge in question beyond reasonable doubt, and it is in fact not necessary to consider the remaining parts” (see paragraph 65). The applicants’ position now is not that the trial judge erred in reaching this conclusion, but that PW1 should, at “a certain stage” (which counsel is unable to specify) before the end of Part I, already have had reasonable grounds to suspect that the applicants had committed an offence.", "zh-HK": "原審時，申請人的立場是第一部份完結之前，PW1不會有合理懷疑申請人干犯了罪行。但原審法官認為，純粹基於第一部份，他 “已達至唯一結論控方已在毫無合理疑點下證明有關控罪，餘下的部分其實也不用作考慮” (看第65段)。申請人現時的立場，並不是原審法官這結論犯錯，而是第一部份完結之前 “某階段”(但大律師未能說明哪階段)，PW1已應該有合理懷疑申請人干犯了罪行。" } }, { "doc_id": 21, "seg_id": 53, "translation": { "en": "We do not accept this contention. The fact that counsel is unable to point to a specific stage in Part I at which PW1 should have had reasonable grounds to suspect that the applicants had committed an offence serves to indicate that this ground of appeal is unrealistic. Now we can go through Part I slowly, even repeatedly, to understand the context. By contrast, at that time, PW1 was not informed in advance of what the applicants would say, and it was therefore unreasonable to expect him to interrupt before he heard the entirety of what the applicants had to say. And at trial, it was common ground that Part I was admissible as evidence. In the absence of any evidence of the speed of the applicants’ speech at that time, it is not open to the applicants to raise this point on appeal.", "zh-HK": "本庭不接納申請人這說法。大律師未能說出在第一部份哪階段PW1應有合理懷疑申請人干犯了罪行，正是反映出這項上訴理由不符現實。現時我們可以慢慢閱讀第一部份，還可以重複翻讀，從而知道其上文下理，但PW1當時沒有預先獲得通知申請人會說什麼，因此要求他未聽完申請人所說而插口並不合理。而原審時，各方已接納第一部份可以呈堂。在沒有申請人當時說話的速度有關證據的情況下，申請人不可以到上訴這階段才提出這點。" } }, { "doc_id": 21, "seg_id": 54, "translation": { "en": "The absence of contemporaneous record of the original content", "zh-HK": "欠缺即時及原文記錄" } }, { "doc_id": 21, "seg_id": 55, "translation": { "en": "We now turn to another ground of appeal, namely that PW1’s notes were not a contemporaneous record of the original content and had not been provided to the applicants for confirmation, and these, it is submitted, adversely affected their weight and fairness.", "zh-HK": "在這階段方面處理另一項上訴理由，即PW1的筆記欠缺即時及原文記錄，又沒有給予申請人確認，所以申請人認為影響其份量及公平性。" } }, { "doc_id": 21, "seg_id": 56, "translation": { "en": "At trial, PW1 did mention the notes he took in the course of interviewing the applicants. Although the notes were not produced to the court as an exhibit, they were made available to the defence for inspection. Upon his application, we allowed the 2nd applicant to refer to those notes at the hearing of this application. It was clear from the notes that PW1 did not record the words of complaint verbatim and part of the notes was taken in the form of diagrams.", "zh-HK": "PW1接見申請人時所作出的筆記，原審時他有提及。雖然筆記沒有作為呈堂證物，但有供辯方查閱。本庭應第二申請人的申請，准許他在本申請聆訊援引該些筆記。從筆記看，明顯地PW1沒有逐個字記錄“投訴說話”，而部份還是以圖表形式記錄。" } }, { "doc_id": 21, "seg_id": 57, "translation": { "en": "Nevertheless, in our view, the trial judge, as an arbiter of fact and having seen and heard PW1 testify, was entitled to accept his testimony and attach weight to it. Although at trial PW1 said he had forgotten some details, counsel for the applicants has not shown us what significance those details had. Nor has counsel for the applicants pointed out any self-contradiction, inconsistency or error in PW1’s evidence. And the applicants did not go into the witness box to give evidence to refute PW1’s evidence. Therefore, although the notes were not a contemporaneous record of the original content and had not been provided to the applicants for confirmation, the trial judge was entitled to accept PW1’s testimony and we do not think this was unfair to the applicants.", "zh-HK": "但本庭認為，原審法官作為事實裁決者，經過耳聞目睹PW1作供，是有權接納他的證供，及給予比重。雖然原審時PW1說他已忘記了一些枝節，但申請人的大律師沒有向本庭指出那些枝節有什麼重要性。申請人的大律師亦沒有向本庭指出PW1的證供有任何自相矛盾、或前後不符、或有任何出錯之處。申請人亦沒有在證人台上作證，提出證供與PW1對質。因此，即使筆記欠缺即時及原文記錄，又沒有給予申請人確認，原審法官有權接納PW1的證供，而本庭不認為對申請人有任何不公。" } }, { "doc_id": 21, "seg_id": 58, "translation": { "en": "Payments made to Tai", "zh-HK": "給予 “戴”的款項" } }, { "doc_id": 21, "seg_id": 59, "translation": { "en": "At this juncture we would mention in passing another ground of appeal put forward by the applicants which also relates to a finding of fact by the trial judge. Counsel for the applicants submits that, while the particulars of offence alleged that the applicants agreed to pay $30,000 per month to Tai, the cheque record in the Agreed Facts showed that the payments were not regular monthly payments.", "zh-HK": "在這階段順帶申請人另外一項上訴理由，亦是有關原審法官的事實裁定。申請人的大律師說， 檢控詳情指申請人同意每月支付$30,000給“戴”，但同意事實內的支票記錄顯示款項並非是每月定期支付。" } }, { "doc_id": 21, "seg_id": 60, "translation": { "en": "The cheque record showed that from December 2007 to July 2009 payments were made on and off, but in each month from July 2009 to November 2010 there was a particular day within which two $30,000 cheques were issued.", "zh-HK": "支票記錄顯示，由2007年12月起至2009年7月止這段時間內，付款是斷斷續續的，但由2009年7月起至2010年11月止，每月定期會有一日內支出兩張$30,000支票的情況出現。" } }, { "doc_id": 21, "seg_id": 61, "translation": { "en": "The trial judge noted this point and addressed it in detail. He pointed out that the 33 cheques involved a total sum of $990,000 and this was consistent with the allegation that the applicants gave Tai $30,000 each time. Moreover, the date shown on the last cheque was also the time when the works were expected to be completed, and this tallied with the allegation that the applicants made payments to Tai for the purpose of making the works smoother. That some of the payments were not made strictly in accordance with the agreement did not mean that the agreement had never existed. We think that the trial judge was justified in taking this view.", "zh-HK": "原審法官有留意這點，也有作出詳細的討論。他指出33張支票合共$990,000，與申請人每次給予“戴”$30,000的說法吻合。另外，最後的支票日期，亦是工程預算完成的時間，這是與申請人給予“戴”款項是為該工程順利一些的說法吻合。付款有部份不依足協議進行，並不等如從來沒有該協議存在。本庭認為原審法官這看法有理。" } }, { "doc_id": 21, "seg_id": 62, "translation": { "en": "Other grounds of appeal raised by the 2nd applicant", "zh-HK": "第二申請人個别的上訴理由" } }, { "doc_id": 21, "seg_id": 63, "translation": { "en": "We now discuss the grounds of appeal raised by the 2nd applicant alone. The first ground is that in his testimony PW1 did accept that the 2nd applicant had spoken less. The 2nd applicant submits that the trial judge failed to thoroughly consider whether he (the 2nd applicant) had adopted what the 1st applicant said.", "zh-HK": "這階段方便討論第二申請人個别 提出的上訴理由。第一點是基於PW1作供時接納了第二申請人比較少說話。第二申請人認為，原審法官沒有充分考慮到他(即第二申請人)是否採納了第一申請人所說的話。" } }, { "doc_id": 21, "seg_id": 64, "translation": { "en": "PW1’s testimony showed that initially he had asked the two applicants to be interviewed separately. However, they made it clear that they wished to be interviewed together, and they apparently intended to act together. Besides, when the 1st applicant voiced the complaint about Tai, the 2nd applicant did not absent himself, or ask the 1st applicant not to continue, or expressly state that he had limited knowledge of the matter, or indicate that he had no idea about what the 1st applicant said, or indicate that he wanted to draw a clear line between himself and what the 1st applicant said. The above evidence indicated that the two applicants were sharing the same stance, and the 2nd applicant did not give evidence in court with a view to refuting this prima facie view. We see nothing in this ground of appeal.", "zh-HK": "從PW1的證供可見，他原本要求把兩名申請人分開接見，但是他們卻表明想一起被接見，看來有共同行動的意向。另外，當第一申請人說出有關姓 “戴”的投訴時，第二申請人沒有離開，或要求第一申請人不要繼續說，或表明他自己知情度有限，或表示他不清楚第一申請人所說的話，或表示要與第一申請人所說劃清界線。以上證據顯示申請人兩人的表態是一樣的，第二申請人亦沒有在庭上作供以圖反駁這表面看法。本庭認為這上訴理由不能成立。" } }, { "doc_id": 21, "seg_id": 65, "translation": { "en": "The second ground of appeal raised by the 2nd applicant was that he was hired by STE and CNCHK at the same time and therefore had reasons to believe that Tai was also in a dual capacity and hence could properly accept payments from STE. The 2nd applicant submits that this constituted a reasonable excuse.", "zh-HK": "第二申請人第二點個别上訴理由，是他同時受聘於 “新輝”及 “中化”，所以他有理由相信 “戴”亦是雙重身份，所以收取“新輝”款項是沒有問題。第二申請人認為這構成合理辯解。" } }, { "doc_id": 21, "seg_id": 66, "translation": { "en": "We do not accept this submission. There was no evidence concerning whether Tai had any position or duty at STE. Nor was there evidence that the 2nd applicant believed that Tai was in a dual capacity. The case law has established the principle that where a defendant does not testify, the court should not speculate about facts which may provide a defence on his behalf. In our view, the fact that the applicants had to pay Tai in the dark and then reported Tai to the ICAC was evidence that the applicants took the view that paying Tai was an illegal act, and this was inconsistent with a reasonable excuse. We reject this ground of appeal.", "zh-HK": "本庭不接納這說法。案中沒有證據顯示“戴”在“新輝”有什麼身份或職責，亦沒有證據顯示第二申請人相信 “戴”是有雙重身份。案例確立，當一名被告人沒有作證時，法庭不應該替他忖測事實以作為答辯理由。本庭認為申請人要暗地裏給錢予 “戴”、與及他們前往廉署舉報 “戴”，這些證據都顯示他們認為給錢予 “戴”是非法行為，與合理辯解不符。本庭駁回這項上訴理由。" } }, { "doc_id": 21, "seg_id": 67, "translation": { "en": "The 2nd applicant also contends that the prosecution failed to prove that he had any illegal motive when he signed the cheques in question, because when he signed most of the cheques he was not a director or shareholder of STE but an employee of CNCHK.", "zh-HK": "第二申請人亦認為控方未能證明他簽署有關支票時有違法的動機，因為他簽署大部份的支票時，不是 “新輝”的董事或股東，而是 “中化”的職員。" } }, { "doc_id": 21, "seg_id": 68, "translation": { "en": "However, the cheques signed by the 2nd applicant were STE’s, not CNCHK’s. He had caused STE to make payments to the main contractor’s employee, and when the payments started, he was a director of STE and knew very well why the payments were made. In any event, even if he had given up his shareholding or resigned as director, he was not someone far away from the worksite and ignorant of the operation of the works. Being the Chief Supervisor of the site, he would have been familiar with the works. STE had been incurring these expenses, which involved a considerable amount of money, for as long as three years. He could not possibly have signed over 30 cheques blindly and, for no reason, given almost one million dollars away to a staff member of the main contractor who was unable to offer any assistance to STE. This contention is unrealistic.", "zh-HK": "但第二申請人所簽署的是“新輝”的支票，並非是“中化”的支票。他導致“新輝”支付款項給大判所聘的職員，而開始支付時，他是“新輝”的董事，清楚知道付款的理由。無論如何，即使他已退股或辭去董事一職，他不是一名在遠離地盤、不懂得工程運作的人。他是地盤總監，對工程業務應該熟悉。“新輝”有這數目不少的支出長達三年之久，他不可能盲目地簽署了超過30張支票，無緣無故地饋送差不多一百萬元給一名對 “新輝”提供不到任何幫助的大判職員，這不是符合現實的說法。" } }, { "doc_id": 21, "seg_id": 69, "translation": { "en": "Should discretion be exercised to exclude the words of complaint from evidence?", "zh-HK": "應否行使酌情權，剔除“投訴說話”作為證據?" } }, { "doc_id": 21, "seg_id": 70, "translation": { "en": "The final ground of appeal emphasized by counsel for the applicants is that initially the applicants uttered the words of complaint in the capacity of informers. They argue that public policy encourages the public to report corruption, and therefore even if the words of complaint were admissible as evidence, the court should have exercised its discretion to exclude them. The applicants confirmed that at trial they had not made this application to the trial judge.", "zh-HK": "最後，申請人的大律師強調的上訴理由，是基於申請人原本是以舉報人身份作出“投訴說話”。他們認為公共政策鼓勵公衆舉報貪污，所以即使“投訴說話”可以呈堂作為證據，但法庭應該行使酌情權，剔除“投訴說話”。申請人確認，原審時他們沒有向原審法官作出這項申請。" } }, { "doc_id": 21, "seg_id": 71, "translation": { "en": "The applicants rely on some decided cases such as Secretary for Justice v Lam Tat Ming [2000] 2 HKLRD 431 (in which the defendant told an undercover police officer about the offence he had committed) and HKSAR v Chan Kau Tai [2006] 1 HKLRD 400 (in which law enforcement officers obtained evidence in breach of constitutional rights).", "zh-HK": "申請人援引了一些案例，例如: Secretary for Justice v Lam Tat Ming譯音林達明 [2000] 2 HKLRD 431(被告人告訴卧底警員他所干犯的罪行)，與及HKSAR v Chan Kau Tai 陳裘大 [2006] 1 HKLRD 400 (執法人員違反憲法權利而獲得證據)。" } }, { "doc_id": 21, "seg_id": 72, "translation": { "en": "In our view, the principle established by these cases is that a court would exercise its discretion to exclude a piece of evidence if it considers that its admission would deprive the defendant of a fair trial.", "zh-HK": "本庭認為，這些案例確立的原則，是若果法庭認為納入某項證據會導致被告人得不到公平的審訊，法庭會行使酌情權將它剔除。" } }, { "doc_id": 21, "seg_id": 73, "translation": { "en": "It is certainly uncommon for an informer to be prosecuted. However, the ultimate question is: would the admission of the words of complaint deprive the applicants of a fair trial? The case law indicates that the court should consider all the circumstances in answering that question.", "zh-HK": "無疑，舉報人反而被檢控，這情況不是常見。但最終的問題是，“投訴說話”的納入是否會令到申請人得不到公平的審訊? 案例顯示，法庭應該考慮全盤情況。" } }, { "doc_id": 21, "seg_id": 74, "translation": { "en": "First, the present case does not involve violation of any of the applicants’ constitutional rights.", "zh-HK": "首先，本案沒有違反申請人的任何憲法權利。" } }, { "doc_id": 21, "seg_id": 75, "translation": { "en": "Furthermore, the applicants, who on their own initiative went to the office of the ICAC, must have known that PW1 was a law enforcement officer.", "zh-HK": "另外，申請人自行前往廉政公署的辦公室，必然知道PW1是執法人員。" } }, { "doc_id": 21, "seg_id": 76, "translation": { "en": "PW1 had not threatened or induced them to speak. Nor was there any law enforcement officer who had done anything unfair to them. As discussed above, until the applicants finished uttering the words which comprised Part I, PW1 had no reason to caution them.", "zh-HK": "PW1沒有威迫或利誘他們說話，亦沒有任何執法人員對他們作出過任何不公的行動。本庭已經討論過，申請人說完第一部份之前，PW1是沒有理由需要向他們作出警誡。" } }, { "doc_id": 21, "seg_id": 77, "translation": { "en": "If the applicants thought that what they said as informers would not be used to prosecute them, that was a misunderstanding on their own part. Before they said anything, they could have made it clear to PW1 that they were only prepared to give a non-prejudicial statement.", "zh-HK": "若果申請人以為因為他們是舉報人，所以說話不會被用來檢控自己，這是他們自己的誤解。他們說話前可以預先與PW1澄清他們只是願意給予 “不具損害性口供”(non-prejudicial statement)。" } }, { "doc_id": 21, "seg_id": 78, "translation": { "en": "In Lam Tat Ming the Court of Final Appeal stated (at 441) that the test of unfairness is not that of a game governed by a sportsman’s code of fair play. Unfairness in this respect is to be judged by the court against, and only against, what is required to secure a fair trial for the accused. However, it is important to observe that in a just society, the conviction of the guilty is in the public interest, as is the acquittal of the innocent.", "zh-HK": "終審法院在林達明案已述明(第441頁)，一名被告人是否遭受不公的測試，並不是運動員公平競賽的遊戲規則。法庭行事唯一的準則，是在使到被告人獲得公平的審訊。然而必須注意，在公義的社會中，將有罪的人定罪、與判無辜的人無罪，同樣促進公衆利益。" } }, { "doc_id": 21, "seg_id": 79, "translation": { "en": "Bribery is a very serious offence and has been likened by the court to a cancer in the community. Those who give or accept bribes are direct causes of corruption, striking at the spirit of a fair and clean society. The applicants did not testify in court that they thought they would not be prosecuted when they confessed, or that what they had said would not be used as evidence against them. But even had they done so, they could not, as persons who had offered bribes, expect sympathy from the court. That said, following conviction, their conduct of reporting the acts of another offender to the authorities would usually be considered by the court for sentencing purposes (and as a matter of fact, the trial judge in the present case did reduce each applicant’s sentence by two months).", "zh-HK": "賄賂是十分嚴重的罪行，法庭曾經描述這罪行為社會的癌細胞。給予或收取賄款的人都是直接導致社會腐敗，打擊公平廉潔社會精神。申請人沒有在庭上作證說自招時他們以為不會被檢控，或他們的說話不會用來作為對付自己的證據，但即使如是，他們作為行賄者都不可以期望法庭會給予同情。然而他們舉報其他犯法者的行為，法庭一般會在定罪後判刑時給予考慮(而在本案中，原審法官確有給予申請人兩個月扣減)。" } }, { "doc_id": 21, "seg_id": 80, "translation": { "en": "Furthermore, the relevant evidence showed that the applicants did not report Tai immediately but instead gave him bribes for as long as three years and in a total sum of almost one million dollars. That the two applicants reported the matters to the ICAC after three years was not due to remorse but was due to disputes between them and Tai. We do not see any unfairness which required the exercise of discretion to exclude the words of complaint.", "zh-HK": "另外，有關證據顯示申請人沒有即時舉報 “戴”，還在3年悠長的時間內向他行賄，賄款高達差不多一百萬元。兩人經過3年的時間才前往廉署舉報，並非出自悔意，而是因為他們與 “戴”有糾紛。本庭看不到有任何不公的情況，令至行使酌情權剔除 “投訴說話”。" } }, { "doc_id": 21, "seg_id": 81, "translation": { "en": "In our view, the above decision finds support in the Court of Appeal case of R v Ho Chung Yum CACC 120/1985. In that case, the Court of Appeal stated expressly that under the common law there is no public policy that informers will not be prosecuted. The question to be considered by the court is: if an informer was at the time of the offence merely acting in the interest of law and order, e.g. an undercover agent, then clearly he had no intent to commit the offence; on the other hand, if in fact an informer did commit the offence and made a report thereafter, it would not be unfair for the authorities to decide to prosecute him and the court would have no reason to exercise its discretion to exclude the informer’s admission from evidence.", "zh-HK": "本庭認為，上述決定獲上訴法庭 R v Ho Chung Yum 譯音何松蔭CACC120/1985一案支持。在該案中，上訴法庭述明，普通法沒有不檢控舉報者的公共政策。法庭需要考慮的問題，是如果舉報者犯案時只是為秉行守法，例如卧底探員，那麼明顯地他是沒有犯法的意圖，但如果舉報者實情上犯了法，而事後才去舉報，當局檢控他的決定沒有任何不公，法庭亦沒有理由行使酌情權，剔除舉報者承認犯法的證據。" } }, { "doc_id": 21, "seg_id": 82, "translation": { "en": "For the above reasons, we dismiss the applicants’ application for leave to appeal.", "zh-HK": "基於以上理由，本席不批准申請人的上訴許可申請。" } }, { "doc_id": 21, "seg_id": 83, "translation": { "en": "Mr Selwyn Yu SC and Ms Queenie Ng, instructed by Messrs. Wong & Associates, for the 1st Applicant", "zh-HK": "第一申請人: 由黃宇豪律師行轉聘余承章資深大律師及伍頴珊大律師代表" } }, { "doc_id": 21, "seg_id": 84, "translation": { "en": "Mr Richard Wong and Mr Danny Chan, instructed by Messrs. Pauline Wong & Co, for the 2nd Applicant", "zh-HK": "第二申請人: 由王婕妤律師事務所轉聘黃達華大律師及陳健強大律師代表" } }, { "doc_id": 21, "seg_id": 85, "translation": { "en": "Mr William Tam, Deputy Director of Public Prosecutions of the Department of Justice, for the Respondent", "zh-HK": "答辯人: 由律政司副刑事檢控專員譚耀豪代表" } }, { "doc_id": 22, "seg_id": 1, "translation": { "en": "Hon Yeung Ag CJHC (giving the Judgment of the Court):", "zh-HK": "高等法院署理首席法官楊振權頒發上訴法庭判案書：" } }, { "doc_id": 22, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 22, "seg_id": 3, "translation": { "en": "The appellant (Lee Wai Ka) was charged with raping the victim Ms X on 19 June 2016. The appellant pleaded not guilty to the charge and was tried before Deputy High Court Judge ST Poon (as he then was) (the Judge) and a jury.", "zh-HK": "上訴人（李偉嘉）被控在2016年6月19日強姦受害人，X女士。上訴人否認控罪，並在高等法院原訟法庭暫委法官（當時官階）潘兆童（原審法官）會同陪審團席前受審。" } }, { "doc_id": 22, "seg_id": 4, "translation": { "en": "On 8 December 2017, the jury found the appellant guilty of the charge. On 23 January 2018, the Judge sentenced the appellant to a term of five-and-a-half years’ imprisonment.", "zh-HK": "2017年12月8日，陪審團裁定上訴人罪名成立。2018年1月23日，原審法官判處上訴人入獄5年6個月。" } }, { "doc_id": 22, "seg_id": 5, "translation": { "en": "The appellant applied for leave to appeal against his conviction and/or sentence. On 31 July 2018, he abandoned the application for leave to appeal sentence, which was dismissed accordingly.", "zh-HK": "上訴人不服定罪及判刑，並曾提出上訴許可申請，要求獲准就定罪及/或判刑上訴。2018年7月31日，上訴人放棄就判刑的上訴許可申請，該申請亦因而被撤銷。" } }, { "doc_id": 22, "seg_id": 6, "translation": { "en": "On 30 October 2018, a single judge of the Court of Appeal found that the appellant’s grounds of appeal were arguable and therefore granted him leave to appeal against conviction. This court now holds the substantive hearing of his appeal against conviction.", "zh-HK": "2018年10月30日，上訴法庭單一法官認為上訴人提出的上訴理由有可爭拗的地方，故批准他就定罪提出的上訴許可申請。本庭現需處理上訴人針對定罪而提出的正式上訴。" } }, { "doc_id": 22, "seg_id": 7, "translation": { "en": "The prosecution case", "zh-HK": "控方的立場及證據" } }, { "doc_id": 22, "seg_id": 8, "translation": { "en": "The prosecution alleged that the appellant raped the victim on 19 June 2016 at the Viva Villa in Kowloon Tong. According to the prosecution, the victim had taken part in an online game since 2015 and joined an organisation consisting of 100 to 200 members. On 11 June 2016, the victim went to Neway in Argyle Centre to participate in a gathering of that organisation and became acquainted with the appellant there.", "zh-HK": "控方指上訴人於2016年6月19日在九龍塘漫春天精品酒店強姦受害人。控方指受害人在2015年開始參與一網上遊戲，並加入了一個有一百多至200名會員的團體。2016年6月11日，受害人前往旺角中心的Neway參加團體舉辦的聚會，並認識了上訴人。" } }, { "doc_id": 22, "seg_id": 9, "translation": { "en": "That night, the victim drank herself into a stupor, and when she came round in the next morning, ie 12 June 2016, she found herself at home. She did not know how she had returned home, but subsequently learnt from her friend that she was taken home by one male and one female. The appellant also told her through WhatsApp that he was the man who had taken her home on the night of 11 June 2016.", "zh-HK": "當晚受害人醉酒不省人事，而在翌日即2016年6月12日早上醒來時，發現自己已身在家中。受害人不知悉自己是如何返家，但後來從朋友口中知悉是由一男一女送她回家的，而上訴人亦有透過WhatsApp向受害人表示他就是在2016年6月11日晚上送她返家的男子。" } }, { "doc_id": 22, "seg_id": 10, "translation": { "en": "The same day, ie 12 June 2016, the appellant arranged with the victim to play online games at her home, and he did not leave until six in the evening. That night, the appellant asked the victim to see a movie, but she refused. On 15 June 2016, the appellant drove to pick up the victim after work and then went to her home for dinner before departing.", "zh-HK": "同日，即2016年6月12日上訴人相約受害人在她的家中打機，直到當天黃昏6時才離開。當天晚上上訴人再約受害人看電影，但受害人拒絕。2016年6月15日，上訴人駕車接受害人下班，並前往受害人家中晚膳後才離開。" } }, { "doc_id": 22, "seg_id": 11, "translation": { "en": "On 19 June 2016, the appellant arranged with the victim to go to a gathering hosted by his friend at J1 Club at Carnarvon Road, Tsim Sha Tsui. They met downstairs and then went up to J1 Club together.", "zh-HK": "2016年6月19日，上訴人相約受害人出席他的朋友在尖沙咀加拿芬道J1 Club舉行的聚會。他們在J1 Club樓下相會後，便一起登上J1 Club。" } }, { "doc_id": 22, "seg_id": 12, "translation": { "en": "The victim said that at the gathering at J1 Club, she took part in drinking games, and lost consciousness as a result of drinking a large quantity of alcohol. She claimed that when she regained consciousness, she found herself naked in bed in a hotel room with the appellant half-naked sleeping next to her. The appellant denied having had sex with her, alleging that she had hit him repeatedly and peed on the floor inside the room, and so he “could not have done it even if he had wanted to”. The victim said that she felt ashamed and thus chose to leave the hotel and accept the appellant’s explanation. Afterwards, the appellant through his friend assisted the victim to look for her missing handbag.", "zh-HK": "受害人指在J1 Club聚會時她有參與飲酒遊戲，並因喝下大量酒精飲品而失去知覺。受害人指當她酒醒時，發現自己身處一酒店房間，一絲不掛睡在床上，而上訴人亦是赤祼上身睡在她身旁。上訴人否認有和受害人性交，並表示受害人曾不停打他及有在房間地上小便，故他“想搞都搞唔到”。受害人指她當時因為感到羞愧，故選擇即時離開酒店，及接納了上訴人的解釋。其後，上訴人有透過朋友協助受害人找尋她失去的手袋。" } }, { "doc_id": 22, "seg_id": 13, "translation": { "en": "The victim admitted that she again went with the appellant to J1 Club on 25 June 2016 to attend a friend’s birthday party, and she could not recall how she returned home because she had been drunk. Subsequently, she learnt that the appellant had again taken her back to her home.", "zh-HK": "受害人承認有和上訴人在2016年6月25日再前往J1 Club參加朋友的生日會，而她亦因為醉酒而記不起如何返家。其後她知悉亦是上訴人送她返家的。" } }, { "doc_id": 22, "seg_id": 14, "translation": { "en": "The victim denied having had sex with the appellant at her home on 12 June 2016 and 19 June 2016.", "zh-HK": "受害人否認在2016年6月12日及2016年6月19日有在自己家中和上訴人性交。" } }, { "doc_id": 22, "seg_id": 15, "translation": { "en": "On 5 July 2016, the appellant found out that she was pregnant and suspected this had to do with the appellant because she had had no sex with anyone else for several months. She WhatsApped the appellant to ask him if he had “molested” her in the Viva Villa on 19 June 2016. The appellant at first denied it, but afterwards said that “it is normal for such thing to happen between boyfriend and girlfriend, and it is not that he denies it”. It was only after the victim repeatedly questioned him and said she would make a report to the police that the appellant further softened his stance and said to the victim, “Sorry, I know it’s my fault”; “Thank you for giving me a chance, I will change”, “Will do my best to compensate for it” and “Will save money”. However, when the victim asked him for compensation, he said, “How can I tell if I was the one,” and indicated that he would treat the victim well and even said “get married, give birth” and so on. The appellant also said that he knew it was his fault and asked the victim to forgive him. He even tried to get the victim’s bank account number so as to pay the $30,000 that she requested for an abortion and recuperation.", "zh-HK": "2016年7月5日，受害人發覺自己懷孕。受害人表示自己已有數月沒有和其他人發生性行為，故懷疑上訴人和事件有關。她以WhatsApp向上訴人查問他有否在2016年6月19日在漫春天精品酒店“搞”過她。上訴人先否認，但後來表示“男女朋友發生該些事很正常，他都冇唔認”。經受害人多番查問及表示會報警後，上訴人的態度才進一步軟化並向受害人說：“對唔住，我知道錯”、“多謝你比機會我，我會改”、“盡能力補償”及“會儲錢”。但當受害人要他賠償時，上訴人又說：“我點知係咪我”，及表示他對受害人好，更說過“結婚，生出黎”等說話。上訴人亦表示自己知錯，要求受害人原諒他。上訴人甚至要取得受害人的銀行帳戶，以支付她要求的3萬元墮胎費和調理費。" } }, { "doc_id": 22, "seg_id": 16, "translation": { "en": "On 5 July 2016 and the following day, the victim told her friends Miki Leung and Mr Cheng that the appellant had had sexual intercourse with her in a hotel. She also approached the Family Planning Association for help as advised by Miki Leung.", "zh-HK": "在2016年7月5日及翌日，受害人有向她的朋友Miki Leung和鄭先生指上訴人在酒店和她性交。她亦有按Miki Leung的建議到家計會尋求協助。" } }, { "doc_id": 22, "seg_id": 17, "translation": { "en": "The victim said that the appellant, upon knowing that she would make a report to the police, arranged with her to meet in the park near her home in the small hours on 7 July 2016. The victim said that the appellant in the meeting admitted that he had sexual intercourse with her without her being aware of it, said it was his fault, pleaded in tears that he was his mother’s only son and begged her not to make any report to the police. The victim claimed that she was softhearted and decided not to take any legal action against the appellant, and he said he would be responsible for the money she needed for abortion and recuperation. The victim even said that she had taken away the appellant’s identity card and home visit permit as security, and in order to convince her to cancel the report already made to the police, he even proposed to marry her but she refused.", "zh-HK": "受害人指上訴人知悉她會報警後，在2016年7月7日凌晨和她相約在家樓下的公園見面。受害人指上訴人在會面時承認有在她不知情下和她性交，上訴人指自己做錯，並哭訴母親只有他一名兒子，及請求受害人不要報警。受害人指自己心軟，故決定不控告上訴人，而上訴人則表示會負責受害人墮胎和調理身體所需的費用。受害人更指有取走上訴人的身份證和回鄉證作擔保。受害人亦表示上訴人為了說服她去銷案，說會和她結婚，但她拒絕。" } }, { "doc_id": 22, "seg_id": 18, "translation": { "en": "The victim confirmed that on 10 July 2016, she texted the appellant, requiring him to deposit $30,000 into her account the following day and arranging with him to meet on 11 July 2016. The following day, the appellant drove the victim to the Family Planning Association to attend a follow-up appointment and afterwards to the A & E department of the United Christian Hospital. During that time, they quarrelled, and the appellant indicated to the victim that he had already engaged a lawyer to sue her for blackmail. Consequently, the victim decided to go with her mother to make a report to the police, but the appellant knelt down at the victim’s home to beg her not to make any police report.", "zh-HK": "受害人確認在2016年7月10日有發訊息給上訴人要他在翌日存3萬元到她的帳戶，並和他相約在2016年7月11日會面。翌日，上訴人駕車送受害人到家計會覆診後，再送受害人到聯合醫院看急症。期間，兩人有爭拗，而上訴人向受害人表示已聘請律師告受害人勒索。結果，受害人決定和母親一起報警，而上訴人則在受害人家中跪在地上要求受害人不要報警。" } }, { "doc_id": 22, "seg_id": 19, "translation": { "en": "From the moment the victim left her residence up to the time she arrived at the police station to make a report, she had recorded all the conversations between her, her mother and the appellant. According to the audio record, the victim accused the appellant of having raped her and made her pregnant whilst the appellant repeatedly admitted his wrongdoing and also said that he was willing to take responsibility and asked her to forgive him.", "zh-HK": "受害人從離開居所一刻開始，直至她抵達警署報案，都有將整個包括她、她的母親及上訴人之間的對話過程錄音。從錄音記錄的內容顯示，受害人有指控上訴人強姦她，令她懷孕，而上訴人則多次認錯，更表示願意負責並要求受害人原諒。" } }, { "doc_id": 22, "seg_id": 20, "translation": { "en": "The victim denied having had sexual intercourse with the appellant at home in the afternoon of 12 June 2016 or in the morning of 19 June 2016. She also denied having asked the appellant for money to repay her credit card debt.", "zh-HK": "受害人否認在2016年6月12日下午及2016年6月19日早上有在家中和上訴人性交。受害人亦否認有問上訴人要錢來清還卡數。" } }, { "doc_id": 22, "seg_id": 21, "translation": { "en": "Apart from the victim’s evidence, the prosecution also produced the relevant WhatsApp communication records between the victim and the appellant (P12) and the audio recordings (P11) as exhibits. The victim underwent an abortion on 22 July 2016, and the DNA evidence proved that the appellant was the natural father of the victim’s foetus.", "zh-HK": "除了受害人的證供外，控方亦將受害人和上訴人的有關WhatsApp通訊記錄（P12）和錄音記錄（P11）呈堂為證。受害人是在2016年7月22日接受終止懷孕手術，而DNA證據亦證實受害人胎兒的親生父親就是上訴人。" } }, { "doc_id": 22, "seg_id": 22, "translation": { "en": "The victim’s mother and friends, namely Miki Leung and Mr Cheng, also gave evidence which was consistent with what the victim said. One of the prosecution witnesses testified that she had seen the victim sleeping on the sofa at around three in the morning on 19 June 2016 in J1 Club with the appellant beside her, but later there was no sign of both.", "zh-HK": "受害人的母親、朋友Miki Leung和鄭先生都有作供，他們的證供都和受害人的說法相吻合。一名控方證人作供時指她在2016年6月19日凌晨3時許在J1 Club見到受害人在梳化上睡着，而上訴人在其身旁，但其後兩人不知所終。" } }, { "doc_id": 22, "seg_id": 23, "translation": { "en": "The prosecution also produced to the court as evidence the record of the video interview conducted by the police with the appellant, the WhatsApp communication records of the parties concerned, and some images and footage captured on the CCTV recordings of what happened when the appellant and the victim checked in at and checked out of the Viva Villa on 19 June 2016.", "zh-HK": "控方亦有將上訴人和警員會面的記錄、各人的WhatsApp通訊記錄和一些在2016年6月19日上訴人和受害人登記入住酒店和離開漫春天精品酒店時從閉路電視擷取的影像和錄影片段呈堂。" } }, { "doc_id": 22, "seg_id": 24, "translation": { "en": "The appellant’s case", "zh-HK": "上訴人的答辯理由和證據" } }, { "doc_id": 22, "seg_id": 25, "translation": { "en": "The defence denied that the appellant raped the victim in the Viva Villa on 19 June 2016, but said that he had had sexual intercourse with her on 12 June 2016 and 19 June 2016 in the afternoon at her home. The defence said that at all material times, the victim was sober and consented to have sex with the appellant.", "zh-HK": "辯方否認上訴人有於2016年6月19日在漫春天精品酒店強姦受害人，但指上訴人於2016年6月12日及2016年6月19日下午在受害人家中和她性交。辯方指當時受害人是清醒的，而她亦是同意和上訴人性交的。" } }, { "doc_id": 22, "seg_id": 26, "translation": { "en": "The appellant did not give evidence at the trial but called a witness/witnesses. He relied on what he had said when the police interviewed him on video as his defence.", "zh-HK": "上訴人沒有作供自辯，但有傳召證人。上訴人是依賴他和警員進行錄影會面時的說法，作為其答辯理據。" } }, { "doc_id": 22, "seg_id": 27, "translation": { "en": "The appellant said in the police video interview that in the afternoon of 12 June 2016, he asked the victim to go to a movie but she said she was not feeling well. Later on, the appellant went to the victim’s home and played online games in her room. He said that they had consensual sexual intercourse. The appellant said that no condom had been used, and the victim, on knowing that he had ejaculated inside her, asked him, “What if (I) get pregnant(?)” The appellant said that he would take responsibility, and the victim said, “You’d better mean it.” The appellant said firmly that the victim was sober at the material time and consented to have sexual intercourse with him.", "zh-HK": "上訴人和警員進行錄影會面時指在2016年6月12日下午約受害人看電影，但受害人表示不舒服。其後上訴人前往受害人家，並在她的房間內打機。上訴人指他們兩人是在雙方同意下性交。上訴人指自己沒有使用避孕套，而受害人是知悉上訴人在她的體內射精後，就問他：“有咗點算”，上訴人表示會負責任，而受害人更說：“你係至好呀”。上訴人力稱當時受害人是清醒，亦是同意和他性交的。" } }, { "doc_id": 22, "seg_id": 28, "translation": { "en": "As to what happened on 19 June 2016, according to the appellant, he and the victim both got drunk in J1 Club, and she got more drunk. When they left J1 Club at around 3 am, the appellant indicated that he would accompany the victim home, but the victim said that her mother had scolded her each time she went home drunk, and so she wished to rest at a hotel first. Eventually, they went to a hotel in Kowloon Tong by taxi. According to the appellant, after getting into the room, the victim peed on the floor, stripped off to take a shower and went to bed immediately after that. The appellant said that he himself had also gone to bed after taking a shower in the toilet and slept until nine something the next morning. After they woke up, the victim said her handbag had gone missing, and the appellant helped her look for the handbag.", "zh-HK": "就2016年6月19日發生的事件，上訴人的說法是他和受害人都因為在J1 Club喝酒而醉酒，但受害人醉的程度較深。他們在當日半夜約3時離開J1 Club時，上訴人表示會送受害人返家，但受害人則指每次醉酒返家後都被母親責駡， 故希望先到酒店休息。結果，他們乘坐的士前往九龍塘一酒店。上訴人指受害人入房後在地上小便，並脫下衣服去洗澡，並於洗澡完畢後便立刻上牀睡覺。上訴人指自己亦有入廁所洗澡後就上床睡覺至翌日早上9時多。他們睡醒後，受害人表示遺失了手袋，而上訴人有協助她尋找手袋。" } }, { "doc_id": 22, "seg_id": 29, "translation": { "en": "The appellant admitted that he and the victim had kissed on board the taxi on the way to the hotel, but said he did not have sexual intercourse with her in the hotel room. The appellant said that they went back together to the victim’s residence after leaving the hotel on 19 June 2016, and he had sexual intercourse with her again in her room. The appellant said he also had used no condom and ejaculated inside her. After that, he continued to help the victim look for her missing handbag.", "zh-HK": "上訴人承認在乘坐的士前往酒店途中有和受害人接吻，但表示在酒店房間內並沒有和受害人性交。上訴人指兩人在2016年6月19日離開酒店後一同返回受害人的居所，並在受害人的房間再次和她性交。上訴人指他亦是沒有戴避孕套，並在受害人體內射精。其後，上訴人繼續協助受害人尋找她遺失的手袋。" } }, { "doc_id": 22, "seg_id": 30, "translation": { "en": "The appellant said that when he had sexual intercourse with the victim on 12 and 19 June 2016, she was sober and consented to have sex. It was the appellant’s case that the victim became pregnant as a result of one of the aforesaid two sexual intercourses.", "zh-HK": "上訴人指他在2016年6月12日及19日和受害人性交時，她是清醒的，亦是同意性交的。上訴人的立場是受害人懷孕是上述兩次性交之一所導致。" } }, { "doc_id": 22, "seg_id": 31, "translation": { "en": "The appellant said that when they met in the park in the small hours on 7 July 2016, the victim scolded him intensely. When he expressed his willingness to take responsibility, she took away his identity card and home visit permit and demanded a few thousand dollars. However, he just had about $1,000 on him and so only gave her $1,000. According to the appellant, the victim said to him, “Don’t think of ending it like this. You can’t fix this mess without spending a few ten-thousand bucks. You are doomed, prison is waiting for you.”", "zh-HK": "上訴人指兩人於2016年7月7日凌晨在公園見面時，受害人瘋狂地駡他。當上訴人表示會負責任時，受害人就取去他的身份證和回鄉證，並要上訴人給她數千元。但當時上訴人身上只有千多元，故只給了受害人1,000元。上訴人指受害人對他說：“唔好諗住就咁算，呢壇嘢冇幾皮嘢，你搞唔掂呀，你死梗呀，準備坐監呀你”。" } }, { "doc_id": 22, "seg_id": 32, "translation": { "en": "As to the circumstances before the victim made the report to the police on 11 July 2016, the appellant said that he had phoned and WhatsApped the victim many times and intended to give her $10,000 first because she had asked him to pay $30,000 into her account, and although she had arranged with him to see a doctor that day, she said that she had to get some more sleep. Eventually, the appellant went to the victim’s place to find her. When the victim’s mother opened the door, the victim pulled him away and scolded him, “Are you playing games? Come up here, are you out of mind? Are you trying to make trouble? Go ahead, play it up.” The appellant told the victim that it was only because he had not seen her after waiting for a long time that he became worried and so went to her residence to look for her. Finally, the appellant left and waited for her downstairs. When the victim came down about half an hour later, she complained of having severe pain and said she needed a painkilling injection.", "zh-HK": "就2016年7月11日受害人報警前的情況，上訴人指他曾多次致電受害人及WhatsApp給她，並打算先給她1萬元，原因是受害人曾要求他支付3萬元到其帳戶，並相約他當天去看醫生，但受害人表示要多睡一會。結果，上訴人前往受害人的家找她。當受害人的母親開門後，受害人扯開她，並責駡上訴人：“你係咪玩嘢呀？殺上嚟，你黐咗線呀？係咪想搞事呀？搞大件事佢囉”。上訴人向受害人表示他是因為等不到受害人而感到擔心才前往她的居所找她。結果上訴人離開上址，並在樓下等她，而受害人在約30分鐘後下來時向上訴人說她好痛，要打止痛針。" } }, { "doc_id": 22, "seg_id": 33, "translation": { "en": "Hence, they went to a clinic in a shopping centre nearby, but since there were many people inside, the victim said, “(I’m) not going to see the doctor; going to the Family Planning Association.”", "zh-HK": "於是，兩人前往附近一商場的診所，但因為診所內人多，受害人就表示“唔睇嘞，去家計會”。" } }, { "doc_id": 22, "seg_id": 34, "translation": { "en": "When the two arrived at the Family Planning Association in Wanchai, the victim required the appellant to buy her some sweets. Eventually, when the appellant returned to the Family Planning Association with some sweets, water and bread that he bought, he did not see the victim. He waited there for a while and then saw her come out from a room. She told him that the doctor said she might have a threatened miscarriage and needed to go to a hospital. Consequently, the appellant accompanied the victim to the United Christian Hospital, but she refused to let him accompany her during the examination and also refused to be hospitalised as instructed by the doctor. When he asked for his identity card and home visit permit back, she demanded $30,000 first. He said that he could give her $10,000 first, but she said, “It’s clearly agreed at $30,000. What is meant by the $10,000 here? Are you playing games? What do you regard me as? Thinking of going away after giving $10,000? So let’s tell the police, let’s make a police report now.” The appellant said that he became somewhat angry and so said to the victim, “Miss, so now you are simply threatening me.”", "zh-HK": "當兩人抵達灣仔家計會後，受害人要上訴人買糖給她吃。結果上訴人買了糖、水及麵包帶返家計會後，卻見不到受害人。他等了一會後，受害人從一房間走出來並向上訴人表示醫生說她可能作小產，並要前往醫院。結果，上訴人送受害人前往聯合醫院，但受害人拒絕上訴人陪同她接受檢查，亦拒絕按醫生的指示留院。當上訴人要求取回他的身份證及回鄉證時，受害人要上訴人先支付3萬元。上訴人表示可以先給她1萬元，但受害人說：“明明講好三萬鈫喎，一萬鈫算係咩嘢啫呢度？你玩嘢呀？咁你當我咩嘢呀咁樣？諗住畀完一萬鈫之後走佬呀？咁報警囉，咁而家報警囉”。上訴人表示自己有些嬲怒，故向受害人說：“阿小姐，咁你而家即係威脅緊我咋喎”。" } }, { "doc_id": 22, "seg_id": 35, "translation": { "en": "The appellant said he raised his voice at that moment, and the victim demanded he drive her back home immediately for her to go with her mother to make a police report.", "zh-HK": "上訴人指自己當時語氣大聲，而受害人要他立刻載她返回家找她的母親一起去報警。" } }, { "doc_id": 22, "seg_id": 36, "translation": { "en": "Consequently, the victim went back home, she and her mother changed and went together to the police station to make a report. The appellant said that the victim was very agitated at that time, and he tried to pacify her, saying that he would take responsibility and assured her that he would not run away. In the course of it, the victim also shouted at her mother loudly, accusing her mother of not standing by her. In the end, they went to the police station together.", "zh-HK": "結果，受害人返家和其母親一起換衣服後去警署報警。上訴人指當時受害人非常激動，而他有安撫她，更表示會負責任及一定不會跑掉。期間，受害人更有大聲呼喝其母親，指母親不和她同一陣線。結果，三人一起前往警署。" } }, { "doc_id": 22, "seg_id": 37, "translation": { "en": "The appellant strongly denied having raped the victim by taking advantage of her drunken state inside a room in the Viva Villa on 19 June 2016, and claimed that they had had sexual intercourse on 12 June 2016 and on 19 June 2016 in the afternoon at the victim’s home. He asserted that the victim was sober and consented to sexual intercourse.", "zh-HK": "上訴人極力否認有在2016年6月19日在漫春天精品酒店房間內乘受害人醉酒時強姦她，並指他們是在2016年6月12日及6月19日下午在受害人的家中性交。上訴人力稱當時受害人是清醒及同意兩人性交的。" } }, { "doc_id": 22, "seg_id": 38, "translation": { "en": "The Judge’s ruling and directions given to the jury", "zh-HK": "原審法官的裁決及對陪審團的指引" } }, { "doc_id": 22, "seg_id": 39, "translation": { "en": "The Judge found that the contents of the audio recordings made by the victim of what happened on the way to the police station (P11) showed that the appellant did admit the victim’s allegation of rape against him. The victim, the appellant and the victim’s mother had the following conversation at that time:", "zh-HK": "原審法官認為受害人在前往警署報警途中錄音（P11）的內容顯示，上訴人有就受害人指他強姦作出招認。當時受害人、上訴人和受害人的母親有以下對話：" } }, { "doc_id": 22, "seg_id": 40, "translation": { "en": "In relation to the appellant’s confessions as alleged by the prosecution, including the WhatsApp communications between them (P12) and the above audio recordings, the Judge gave the jury the following directions:", "zh-HK": "就控方指上訴人曾作出過的招認，包括兩人的WhatsApp通訊（P12）和上述錄音記錄，原審法官向陪審團作出了以下指引：" } }, { "doc_id": 22, "seg_id": 41, "translation": { "en": "“Members of the jury, the prosecution alleges that the defendant had on various occasions and circumstances confessed to X, confessing that he indeed had sexual intercourse with X in the hotel on 19 June, and the prosecution says that these confessions are true. Such confessions alleged by the prosecution are the contents of certain WhatsApp messages sent to X by the defendant, what the defendant said to X in the downstairs park near where she lived in the small hours on 7 July, and the defendant’s reaction on 11 July in the audio recordings which we have heard. In relation to the WhatsApp messages sent by the defendant to X, it is the prosecution’s position that X was all along asking the defendant if he had sexual intercourse with her in the hotel on 19 June, and it understood that he sent a voice message to X saying, “And also, I have not said I deny.” So, from this, the prosecution concludes that this is a confession made by the defendant. Members of the jury, although X testified that in her view, the aforesaid meant the defendant admitted having had sexual intercourse with X that day in the hotel, this is just X’s evidence and is only her own opinion. When you consider the question of whether this can be regarded as the defendant’s confession, you do not need to take into account X’s opinion. You should consider all the circumstances and background in which the defendant sent out the message, carefully read and try to understand the context of the message concerned and then determine if the message sent out by the defendant meant he admitted having sexual intercourse with X in the hotel. As to the confession that X claimed the defendant made in the downstairs park near X’s residence, if you accept X’s evidence, being sure that the defendant had indeed admitted in front of X that he on that night in the hotel had sexual intercourse with her without her being aware of it, you may rely on what the defendant has admitted in front of X to determine the case. In relation to the defendant’s reaction on 11 July in the audio recordings, it is the prosecution’s case that after X had said that she was going to the police, the defendant kept on apologising to her and even knelt down to beg for her forgiveness; and while X told her mother that the defendant had raped her, the defendant said spontaneously, ‘Mother, I was wrong, I know I was really wrong.’ The prosecution suggests that what was said and done is sufficient to constitute the defendant’s confession. Members of the jury, likewise, you have to carefully consider the background and context in which the defendant uttered such words and behaved in such way, and then decide if what was said and done amounts to a confession[.]", "zh-HK": "“各位陪審員，控方係指被告人喺不同嘅場合同埋情況都曾經向X係作出過一啲招認，招認就承認咗佢喺6月19號確實係有同X喺酒店嗰度係性交，咁控方話而呢啲招認都係真實。控方所指嘅呢啲招認，分別就係指被告人發畀X嘅WhatsApp訊息嘅某啲內容，同埋係被告人7月7號凌晨喺X樓下公園對X所講嘅說話，以及係喺7月11號當日，大家喺錄音片段中聽到被告人嗰啲反應。咁就住被告人發畀X嘅WhatsApp訊息方面，控方嘅立場係X一直都係喺度質問緊被告人有冇喺6月19號凌晨喺酒店之內同佢性交，咁而被告人係喺呢一個理解之下係向X發出過語音訊息話「另外，我都冇話唔認。」咁，所以控方認為呢，呢一個係被告人嘅一個招認嚟嘅。各位陪審員，雖然X喺佢嘅證供裡面話，佢認為被告人咁樣樣就代表咗佢承認咗當日有喺酒店裡面同X性交，呢個係X嘅證供，但係呢個只係X自己嘅意見，你哋喺考慮呢一個算唔算係被告人嘅招認呢個議題嘅時候，唔需要理會X嘅意見，你哋應該考慮所有被告人發出嘅訊息嘅時候嘅情況同埋背景，細心閱讀同埋理解嗰啲相關訊息嘅前文後理，然後自己作出判斷，究竟被告人所發嘅訊息，是否等於承認咗佢當日有喺酒店同X性交。至於X指稱被告人喺佢樓下公園所作嘅招認，如果你哋接納X嘅證供，肯定被告人確實曾經喺X面前承認咗當晚喺酒店，喺X不知情之下同佢性交嘅話，你哋就可以以被告人喺X面前承認嘅呢啲事情作為判案嘅依據喇。而有關被告人喺7月11號嘅錄音裡面嗰啲反應，控方嘅立場係，當X話佢要去報警之後，被告人不斷咁同X道歉，仲跪地求饒，而當X向佢媽媽話被告人強姦佢，被告人即時嘅講法就係「媽咪，我唔啱，我知道真係唔啱喇。」呢啲說話行為，控方認為係足以構成被告人嘅一啲招認。各位陪審員，同樣地，你哋要細心考慮被告人嘅呢啲說話同埋行為嘅背景同埋前文後理，然後判斷究竟被告人嘅呢啲說話行為是否構成招認呢？" } }, { "doc_id": 22, "seg_id": 42, "translation": { "en": "Members of the jury, when you decide if you can safely rely on what the defendant has admitted as the basis of your verdict, you have to consider three points: First, did the defendant in fact make these confessions[?] If you are not sure whether he did, you may disregard them; however, if you are sure that he did make such confessions, then, secondly, you have to consider the second point: can the confessions which the prosecution alleged were made by the defendant be regarded as confessions? If you are not sure, then you do not need to pay any regard to these so-called confessions; however, if you are sure, you have to go further and consider the third point, which is: are you sure that the contents of the confessions were true? When you consider this point, ie whether the defendant’s confessions are true, you have to pay special regard to whether the defendant just went along or might have gone along with X so as to prevent her from complaining to the police, and hence he made the confessions and therefore they are not truthful? Irrespective of the reasons, if you are not sure whether these confessions are true, you must disregard them; if you are sure that these confessions made by the defendant are true, then you can rely on them as the basis of your verdict.", "zh-HK": "各位陪審員，你哋決定是否可以穩妥地，以被告人承認嘅事情作為判案嘅依據時候，必須考慮三點：第一，就係被告人事實上有冇作出呢啲招認，如果你哋唔肯定佢有作出呢啲招認，就不需理會呢啲招認，但係如果你哋肯定佢有作出呢啲招認嘅話，咁樣，第二點，你哋要考慮第二點，控方所指嘅被告人嘅招認，是否可以被視為招認呢？如果你哋唔肯定，就唔需要理會呢啲所謂招認；但如果你哋肯定嘅話，你哋就要進而考慮第三點，就你哋是否肯定嗰啲招認嘅內容係屬實呢？你哋喺考慮呢一點嘅時候，即係話被告人嗰啲招認內容是否屬實嘅時候，你哋要特別考慮，被告人嘅招認是否或者可能只係因為被告人為免X報警，而去迎合X嘅呢？所以就並非真實嘅呢？不論咩嘢原因，如果你哋唔肯定呢啲招認內容係真嘅話，你哋就必須棄之不理；如果你哋肯定被告人呢啲承認嘅事情係真嘅話，就可以將佢哋作為斷案嘅依據喇。" } }, { "doc_id": 22, "seg_id": 43, "translation": { "en": "Members of the jury, please bear in mind the directions that I have just given you in respect of confessions as evidence. Now we return to X’s evidence. Under cross-examination, X said that she was not working before June and July 2016 because she was not happy and had emotional problems. Previously she had a habit of taking cocaine. From March 2016 onwards, she began to receive treatment, and has successfully kicked the habit. Since June 2016, she has worked with CSL. She has agreed that she often goes out for fun and drinks, which ends up in “a blackout” almost each time, and is required to be taken home by friends.” (emphasis added)", "zh-HK": "各位陪審員，請你哋謹記我剛才畀你哋有關招認作為證據嘅一啲指引，而家係返番去X嘅證供。盤問嘅時候，X就話佢喺2016年6、7月之前係冇工作，因為佢係唔開心，有情緒病，佢之前有服用可卡因嘅習慣，但係喺2016年3月開始就戒毒，之後係成功戒除，佢喺2016年6月開始就喺CSL工作，佢同意佢有經常出街玩、飲酒，差唔多每次都飲到「斷片」，係要由朋友係送佢返屋企。” （強調後加）" } }, { "doc_id": 22, "seg_id": 44, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 22, "seg_id": 45, "translation": { "en": "Ms Priscilla Lam of counsel for the appellant first pointed out that at the trial the defence had had no objection to the admission of P12 as evidence but had challenged the admissibility of P11. She contended that the contents of P11 did not constitute any confession whereas the prejudicial effect caused to the appellant far outweighed its probative value, and hence it should not have been admitted as evidence. Ms Lam asserted that the Judge had been wrong in not excluding P11 from the evidence, and this had rendered the conviction of the appellant unsafe and unsatisfactory.", "zh-HK": "代表上訴人的林芷瑩大律師先指出在原審時，辯方不反對P12呈堂，但有反對P11呈堂為證。林大律師認為P11的內容不構成招認，但其內容對上訴人造成的偏見遠較其舉證價值高，故不應獲准呈堂為證。林大律師力稱原審法官沒有剔除P11為證是錯誤的決定，導致針對上訴人的定罪裁決不穩妥。" } }, { "doc_id": 22, "seg_id": 46, "translation": { "en": "Ms Lam stressed that what the appellant said in the conversations with the victim and her mother was ambiguous. What he said might be in response to his previous reference to engaging a lawyer about the victim blackmailing him with her pregnancy.", "zh-HK": "林大律師強調上訴人和受害人及其母親對話時所說的說話含糊不清。她指上訴人的說話可能是回應他曾說過找律師指控受害人以有身孕來勒索上訴人有關。" } }, { "doc_id": 22, "seg_id": 47, "translation": { "en": "Ms Lam also pointed out that the Judge, in directing the jury to consider whether P11 and P12 constituted confessions, failed to sufficiently analyse the contents of P11 and P12 or identify to the jury what they should pay attention to but merely requested them to read P11 and P12 by themselves.", "zh-HK": "林大律師亦指原審法官在指引陪審團考慮P11和P12是否構成招認時，沒有充分分析P11和P12的內容，亦沒有向陪審團指出他們應注意的事項，而只是要求陪審團自行閱讀P11和P12。" } }, { "doc_id": 22, "seg_id": 48, "translation": { "en": "Ms Lam emphasised that the contents of P12 did partly support what the appellant had said, however, the Judge in his directions did not tell the jury that they had to take into account his explanations in the record of video interview as well, in considering whether he had confessed.", "zh-HK": "林大律師強調P12的內容部分支持上訴人的說法，但原審法官沒有指示陪審團在考慮上訴人是否有作出招認時，亦要考慮他在錄影會面時所作出過的解釋。" } }, { "doc_id": 22, "seg_id": 49, "translation": { "en": "Ms Lam asserted that there was material showing that the “confessions” made by the appellant were a result of unfair and oppressive means, but the Judge failed to direct the jury properly, in particular, he did not point out that X was lying when she claimed that she would go to the police station to cancel the report whilst in fact no report had ever been made. Ms Lam also pointed to the Judge’s failure to remind the jury to take into account the appellant’s explanations given in the course of the video interview.", "zh-HK": "林大律師力稱有資料顯示上訴人作出的“招認”是受害人對他的不公平及威逼手段所導致，但原審法官卻沒有適當地引導陪審團，特別是沒有向陪審團指出X有說謊，指她會到警署銷案，而事實上當時她仍未報案。林大律師亦指原審法官沒有提醒陪審團要考慮上訴人在錄影會面時所作出過的解釋。" } }, { "doc_id": 22, "seg_id": 50, "translation": { "en": "Ms Lam contended that there was evidence showing that the victim had used improper means to force the appellant to confess, and although she was not a person in authority, it was still necessary for the Judge to give the jury the Mushtaq direction, namely, directing the jury that if they concluded that the confession concerned was or might have been obtained as a result of oppression or anything said or done improperly, they should disregard such confessions.", "zh-HK": "林大律師認為有證據顯示受害人有作出過不當手段逼使上訴人作出招認，而雖然她並非是一名有權力的人（Person in Authority），但原審法官仍需要給予陪審團Mushtaq Direction（Mushtaq指引），即要指示陪審團如認為有關招認是或可能是以威逼手段或因為某些不當的說話或行為所導致，則陪審團應不要理會該些招認。" } }, { "doc_id": 22, "seg_id": 51, "translation": { "en": "Ms Lam has also cited HKSAR v Pang Hiu San (2014) 17 HKCFA 545 (sic), emphasising the importance of an accused’s entitlement to the right to silence and the right to have a fair trial. It was Ms Lam’s position that the Judge’s failure to give the jury the Mushtaq direction infringed the appellant’s right to silence and rendered the trial unfair.", "zh-HK": "林大律師亦援引HKSAR v Pang Hiu San (2014) 17 HKCFA 545案，強調被告人享有緘默權及公平審訊權利的重要性。林大律師的立場是原審法官沒有給予陪審團適當的Mushtaq指引，是違反了上訴人的緘默權而引致審訊不公。" } }, { "doc_id": 22, "seg_id": 52, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 22, "seg_id": 53, "translation": { "en": "It is indisputable that the appellant and the victim had sexual intercourse, causing her to become pregnant. The victim said that during the relevant period, she was not aware of having sex with anybody. Therefore, the only possibility was that the appellant raped her after she became drunk and unconscious and was taken to the Viva Villa on 19 June 2016, which resulted in her pregnancy.", "zh-HK": "上訴人曾和受害人性交，導致她懷孕是不爭的事實。受害人指在有關時段，她沒有意識到曾和任何人性交。因此，唯一的可能是當她在2016年6月19日被帶到漫春天精品酒店及醉酒不省人事時，遭到上訴人強姦後懷孕。" } }, { "doc_id": 22, "seg_id": 54, "translation": { "en": "The appellant admitted that he had gone to the Viva Villa with the victim in the small hours of 19 June 2016, but denied having sexual intercourse with her in the hotel room.", "zh-HK": "上訴人承認他在2016年6月19日凌晨有和受害人前往漫春天精品酒店，但他否認有在酒店房間內和受害人性交。" } }, { "doc_id": 22, "seg_id": 55, "translation": { "en": "It was the appellant’s case that he and the victim had sexual intercourse at her home on 12 June 2016 and 19 June 2016 in the afternoon while she was sober and she consented, which caused her to become pregnant. He alleged that she lied to falsely accuse him so as to hide the fact that they had had sex twice at her home and she was unhappy with his blackmail allegation.", "zh-HK": "上訴人的立場是於2016年6月12日和2016年6月19日下午在受害人的家中，並在受害人清醒及同意下和她性交而導致她懷孕。上訴人指受害人是為了隱瞞兩人兩次在她家中性交及不滿他的勒索指控而說謊來誣告他。" } }, { "doc_id": 22, "seg_id": 56, "translation": { "en": "The prosecution evidence against the appellant mainly came from the victim and also relied on the victim’s complaints to Miki Leung and Mr Cheng shortly after the incident. Those complaints were consistent with the victim’s allegations against the appellant, showing her to be an honest and reliable witness.", "zh-HK": "控方針對上訴人的證據主要源自受害人，但控方亦有依賴在事發後不久受害人向Miki Leung和鄭先生作出的投訴。該些投訴和受害人指控上訴人的說法是一致的，故顯示她是一名誠實及可靠的證人。" } }, { "doc_id": 22, "seg_id": 57, "translation": { "en": "The prosecution also relied on P11 and P12. According to the prosecution, those WhatsApp communication records and audio recordings showed that the appellant admitted the victim’s allegations against him, namely that he raped her while she was drunk and unconscious in a room at the Viva Villa on 19 June 2016.", "zh-HK": "控方亦依賴有關的P11和P12。控方的立場是該些WhatsApp通訊記錄及錄音記錄顯示了上訴人承認受害人對他的指控，即上訴人於2016年6月19日在漫春天精品酒店房間內趁她酒醉不省時強姦了她。" } }, { "doc_id": 22, "seg_id": 58, "translation": { "en": "According to the contents of P11 and P12, faced with the victim’s clear allegation of rape against him, the appellant repeatedly said he knew that it was his fault, apologised and begged her for forgiveness.", "zh-HK": "根據有關的P11及P12的內容，上訴人面對受害人明確指控他強姦時，曾多次表示知錯及歉意，並要求受害人原諒。" } }, { "doc_id": 22, "seg_id": 59, "translation": { "en": "The appellant said that he had accused the victim of threatening and blackmailing him and demanding money, which made the victim angry, and it was only for those disgraceful words that he apologised to her and requested her forgiveness. However, the contents of P11 and P12 were not consistent with the appellant’s version. Had he had sexual intercourse with the victim with her consent on 12 and 19 June 2016 in the afternoon, he would not have possibly responded to her accusations as he did in P11 and P12. In view of the contents of P11 and P12 as a whole, a reasonable jury could conclude that the appellant indeed admitted the rape accusation against him. Therefore, P11 and P12 could constitute the appellant’s confessions in response to the accusation against him.", "zh-HK": "上訴人指自己曾指控受害人威脅勒索他，要他支付金錢，該做法令受害人不滿，而他只是就該些令受害人不滿的言詞向她致歉及要求她原諒。但P11及P12的內容和上訴人的說法不符。如他在2016年6月12日及19日下午是在受害人的同意下和她性交，他不可能就受害人的指控而作出P11及P12所顯示的回應。根據P11和P12的整體內容，合理的陪審團是可以認定上訴人確有承認受害人指他強姦她的指控。因此，P11及P12可以是上訴人就針對他的指控而作出的招認。" } }, { "doc_id": 22, "seg_id": 60, "translation": { "en": "In our view, the above-mentioned confessions made by the appellant have extremely high probative value. Ms Lam contended that the Judge should have refused to admit P11 as evidence because its contents were ambiguous and could not constitute a confession, and that the prejudice created against the appellant far outweighed its probative value. This contention is unrealistic, and this court does not agree.", "zh-HK": "本庭認為上訴人的上述招認是極具舉證價值的證據。林大律師指P11的內容含糊不清並不能構成招認，而其對上訴人造成的偏見遠較其舉證價值為高，故原審法官應拒絕採納它為證的說法是不設實際的，本庭不認同。" } }, { "doc_id": 22, "seg_id": 61, "translation": { "en": "Whether what the appellant said in P11 was ambiguous and whether those apologies were made merely in response to having angered the victim with the blackmail accusation against her, and whether the jury should rely on those audio recordings, and the weight to be accorded to those records are all factual issues to be decided by the jury.", "zh-HK": "上訴人在P11的說法是否含糊不清，是否只是因為他曾指控受害人勒索他，令受害人不滿而作出的道歉回應;陪審團應否依賴該些錄音記錄及應給予該些記錄的比重，都是陪審團要作出的事實裁決。" } }, { "doc_id": 22, "seg_id": 62, "translation": { "en": "In directing the jury, the Judge did make clear to them that they had to consider the contents of the audio recordings in question and the explanations given by the appellant in the video-recorded interview.", "zh-HK": "原審法官在指引陪審團時，有表明他們要考慮有關的錄音內容及上訴人在錄影會面時作出過的解釋。" } }, { "doc_id": 22, "seg_id": 63, "translation": { "en": "Whether the contents of P11 and P12 show the appellant actually admitted the victim’s rape accusation against him, or whether it supports the appellant’s position are also facts to be determined by the jury. The Judge did not need to direct the jury to pay particular attention to certain matters or conduct an excessive analysis on certain matters. Otherwise, the Judge would be at risk of being seen as usurping the jury.", "zh-HK": "P11及P12的內容是否顯示上訴人確有承認受害人針對他的強姦指控，或是否支持上訴人的立場，亦是陪審團要作出的事實裁決。原審法官無需亦不適宜指示陪審團要特別注意某些事項或對某些事項作出過份的分析。否則，原審法官亦有篡奪陪審團職能之嫌。" } }, { "doc_id": 22, "seg_id": 64, "translation": { "en": "The Judge reminded the jury that they were not bound to accept the opinion on facts given by the two counsel or the Judge, and that he would not repeat all the evidence but would only highlight the main points. The Judge did stress to the jury that they must consider all the evidence, including the parts which neither counsel nor the Judge had referred to.", "zh-HK": "原審法官有提醒陪審團，他們不一定要接受雙方大律師或法官就事實所表達的意見，而他亦不會複述全部的證據，而只會複述重點。原審法官有向陪審團強調，他們必須考慮所有證據，包括雙方大律師及原審法官都沒有提及的證據。" } }, { "doc_id": 22, "seg_id": 65, "translation": { "en": "In our view, in respect of the background in the present case, it was reasonable and proper for the Judge to direct the jury that they had to take into account all the evidence, including having to read and analyse the relevant WhatsApp communication records and audio recordings in detail.", "zh-HK": "本庭認為以本案的背景而言，原審法官指示陪審團要將全部證據考慮在內，包括要詳細閱讀和分析有關的WhatsApp通訊記錄和錄音記錄是合理和適當的做法。" } }, { "doc_id": 22, "seg_id": 66, "translation": { "en": "According to the victim, which is confirmed by the relevant WhatsApp communication records, the victim asked the appellant if he had “molested” her in the hotel on 19 June 2016. The appellant denied it and even said that he “ could not have been done it even if he had wanted to”. Although the victim did not accept what the appellant said, she did not actively pursue the matter. When the victim found out she had become pregnant, she asked the appellant again by way of WhatsApp. Initially, the appellant still denied it, but since the victim firmly believed that he was the one who had got her pregnant, she kept on asking him about related matters and even indicated that she would report it to the police. The appellant insisted and even said, “How I can know if I was the one.”", "zh-HK": "根據受害人的說法，而該說法亦和有關的WhatsApp通訊記錄相確認。受害人向上訴人查問於2016年6月19日在酒店是否有“搞”她時，上訴人否認，更指“想搞都搞唔到”。雖然受害人不接納上訴人的說法，但她沒有積極追究事件。當受害人發現自己懷有身孕後，再以WhatsApp向上訴人查問。初時上訴人仍否認，及後由於受害人深信上訴人有導致她懷孕，便不停向上訴人追問有關事件，更表示會報警。上訴人仍堅持更表示“我點知係咪我”。" } }, { "doc_id": 22, "seg_id": 67, "translation": { "en": "The victim felt humiliated and further questioned the appellant, only by then did the appellant soften his stance. He first expressed regret to the victim and further indicated that he was willing to take responsibility and marry her. The appellant’s suggestion that the victim was sober and consented to having sexual intercourse with him at the time is essentially inconsistent with the content of the WhatsApp communication records.", "zh-HK": "當受害人感到受侮辱並再追問上訴人時，上訴人的態度才開始軟化。他先向受害人表示歉意，更表示願意承擔責任及和受害人結婚。上訴人指受害人是在清醒狀態及同意下和他性交的說法根本和WhatsApp通訊記錄的內容不符。" } }, { "doc_id": 22, "seg_id": 68, "translation": { "en": "The victim demanded from the appellant a payment of $30,000 for an abortion and recuperation. She even said that he had to explain to the police and reiterated that a report had already been made and she would make a report to the police again. Obviously, the appellant worried the matter would alert the police and hence made every effort to persuade her not to make any police report and to cancel any report made.", "zh-HK": "受害人要求上訴人支付3萬元作為墮胎及調理費用。受害人更表示上訴人要向警察解釋，並重申已報警及會再去報警。上訴人明顯是害怕事件會警動警方，故盡量企圖說服受害人不要報警，及如她已報警就去銷案。" } }, { "doc_id": 22, "seg_id": 69, "translation": { "en": "In fact, the victim had not made any police report. It was only when she was discontented with the appellant’s blackmail accusation against her that she decided to go to the police station with her mother. The victim said the appellant knelt down to beg her not make any report, which showed his extreme fear of her making any report to the police.", "zh-HK": "事實上，受害人當時仍未報警。她是到後期不滿上訴人指控她勒索時，才決定和母親前往警署報案。受害人指當時上訴人曾跪在地上要求她不要報警，顯示他極害怕受害人會報警一事。" } }, { "doc_id": 22, "seg_id": 70, "translation": { "en": "Although the appellant did not say that his confessions were made under oppression, in view of the contents of P11, he might be in fear that the victim would make or had made a police report, and so he admitted her accusations in the hope of persuading her not to make any report or to cancel any report made.", "zh-HK": "雖然上訴人沒有指自己是在壓迫下而作出招認，但根據P11的內容，上訴人可能是因為害怕受害人會報警或已報警，而承認受害人的指控，以冀說服受害人不要報警或銷案。" } }, { "doc_id": 22, "seg_id": 71, "translation": { "en": "The Judge asked the jury to consider three points: (1) whether the appellant had uttered any words which could be regarded as constituting a confession; (2) whether those words could be regarded as a confession; and (3) whether the contents of those confessions were true.", "zh-HK": "原審法官要求陪審團考慮三點：(一) 上訴人是否有說過可以視為構成招認的說話；(二) 該些說話是否可視為招認；及(三) 該些招認的內容是否屬實。" } }, { "doc_id": 22, "seg_id": 72, "translation": { "en": "The Judge did stress to the jury that even if they thought the relevant WhatsApp communication records and audio recordings amounted to the appellant’s confessions to X’s accusations, they were still required to consider the appellant’s confessions as to “whether it was possible that the accused might have just tried to go along with X so as to prevent her from making any police report, and hence they were not true!” The Judge also went further and made it clear to the jury that if they were not sure that the appellant’s confessions were true, they must disregard those confessions. The Judge directed the jury to consider if the appellant’s confessions were true, and in case they were not sure, they must ignore and disregard those confessions.", "zh-HK": "原審法官有向陪審團強調，即使他們認為有關的WhatsApp通訊記錄及錄音內容構成上訴人有對X的指控作出招認，他們仍要考慮上訴人的招認“是否或者可能只係因為被告人為免X報警，而去迎合X嘅呢？所以就並非真實嘅呢！”原審法官更有進一步向陪審團表明，如他們不能肯定上訴人的招認是真確的，他們就必須不理會該些招認。原審法官是指示陪審團要考慮上訴人的招認內容是否真確，而如他們不能肯定上訴人的招認內容真確，他們就必須將有關招認棄之不理。" } }, { "doc_id": 22, "seg_id": 73, "translation": { "en": "Of course, the truthfulness of an accused’s confession is one of the issues that a jury must consider. In considering if the confession made by an accused is true, they have to take into account the accused’s allegation that the confession was made as a result of oppression. If the jury finds that the accused’s confession was made as a result of oppression, it should be excluded from evidence because the content of a confession obtained by oppression may not be true and is therefore not reliable. Not only because such confession is not reliable but also because no one should be compelled to incriminate oneself by confessing and any confession obtained as a result of oppression has to be rejected. (See R v Mushtaq [2005] 1 WLR 1513 at p1530 E-G). Therefore, if the confession made by an accused is, or may have been, obtained as a result of oppression, the trial judge should direct the jury to exclude such confession from the evidence. The trial judge should not direct the jury that they have to decide whether the contents of the confession concerned are true before deciding whether such confession should be disregarded. This is the principle laid down in the above case of Mushtaq.", "zh-HK": "當然被告人的招認內容是否真確是陪審團必須考慮的議題之一，而在考慮一名被告人的招認內容是否屬實時，他們必須將被告人聲稱招認是在受到壓迫下作出的說法考慮在內。假若陪審團認為被告人的招認是在受壓迫下作出，則他們應摒棄被告人的招認為證據，原因是在受壓迫下的招認，其內容可能並非屬實，故不可靠。要否決一些在壓迫下作出的招認為證，除了是因為在壓迫下作出的招認是不可靠外，亦有另一原因，就是任何人士都不應被強制去作出對自己不利的招認。（見R v Mushtaq [2005] 1 WLR 1513 at P. 1530 E-G）。因此，假若一名被告人的招認是或可能是在壓迫下作出的，主審法官應指示陪審團要摒棄被告人的招認為證。主審法官不應指示陪審團要決定有關的招認內容是否屬實才決定應否摒棄有關招認。這是上述Mushtaq案定下的原則。" } }, { "doc_id": 22, "seg_id": 74, "translation": { "en": "The Hong Kong Court of Final Appeal has held in the case of HKSAR v Pang Hiu San (2014) 17 HKCFAR 545 that the principle laid down in Mushtaq is applicable to Hong Kong, and has made clear that a trial judge is required to give the jury the Mushtaq direction under the following circumstances:", "zh-HK": "香港終審法院在HKSAR v Pang Hiu San (2014) 17 HKCFAR 545案裁定Mushtaq案定下的原則適用於香港，並表明在下述的情況下，主審法官需要給予陪審團Mushtaq指引：" } }, { "doc_id": 22, "seg_id": 75, "translation": { "en": "Although the victim was not a law enforcement officer, since she suspected that the appellant had taken advantage of her drunkenness and raped her, she questioned the appellant many times in order to find out the truth. In the course of questioning, not only had she lied to the appellant that she had made a report to the police, she had also threatened him by saying that she would complain to the police again if he insisted on denying it.", "zh-HK": "雖然受害人並非執法人員，但她因為懷疑上訴人乘她醉酒而強姦她，而為了尋找真相，她多次向上訴人查問。在查問過程中，她不但有向上訴人訛稱已報警，亦有威嚇被告人如他仍然否認，她會再向警方投訴。" } }, { "doc_id": 22, "seg_id": 76, "translation": { "en": "It was under such circumstances that the appellant admitted having “raped” the victim. It was also obvious that the Judge also thought the appellant’s confessions might have been made to go along with the victim so as to prevent her from making any police report. The Judge also found that what the victim had done might amount to oppression.", "zh-HK": "上訴人是在上述情況下承認有“強姦”受害人，而原審法官亦明顯認為被告人作出的招認可能是因為要避免受害人報警而去迎合受害人。原審法官亦認為受害人的做法可以構成壓迫行為。" } }, { "doc_id": 22, "seg_id": 77, "translation": { "en": "However, the Judge in directing the jury still emphasised that they had to consider if the appellant’s confessions were true. The jury was directed that if they were not sure of the truthfulness of the appellant’s confessions, they must disregard those confessions.", "zh-HK": "但原審法官引導陪審團時仍然強調，他們要考慮上訴人的招認的真確性。原審法官指示陪審團如他們不能肯定上訴人招認的內容是真確時，他們必須將上訴人的招認棄之不理。" } }, { "doc_id": 22, "seg_id": 78, "translation": { "en": "The directions given by the Judge to the jury did not meet the requirements of the Mushtaq direction. The Judge should have directly made it clear to the jury that if they thought the appellant’s confessions were or might have been obtained by oppression or in consequence of anything improperly done and/or said, they must disregard such confessions.", "zh-HK": "原審法官給予陪審團的指引不符合Mushtaq指引的要求。原審法官應直接向陪審團表明，如他們認為上訴人的招認是或可能是受壓迫或其他不當行為及/或說話所引致 的，他們就必須摒棄有關的招認。" } }, { "doc_id": 22, "seg_id": 79, "translation": { "en": "In view of the above circumstances, the conviction of the appellant is not safe or satisfactory.", "zh-HK": "在上述情況下，針對上訴人的有罪裁決是不穩妥的。" } }, { "doc_id": 22, "seg_id": 80, "translation": { "en": "Mr Eddie Sean, SADPP, for the respondent asked this court to apply the “proviso” to uphold the guilty verdict against the appellant. However, in our view, if the appellant’s confessions in P11 and P12 were excluded, the victim would become the only source of evidence against the appellant, and it should be open to the jury to determine whether they would accept her evidence and convict the appellant. Although the appellant’s defence is extremely incredible, this is not a ground sufficient to enable this court to apply the “proviso”.", "zh-HK": "代表答辯人的高級助理刑事檢控專員單偉琛要求本庭使用“但書”來支持針對上訴人的有罪裁決。但本庭認為如上訴人在P11和P12作出的招認被摒棄，則唯一針對上訴人的證據只源自受害人，而陪審團是否接納她的證供來裁定申請人罪名成立應由陪審團決定。雖然上訴人的答辯理由極不合信，但這並非容許本庭行使“但書”的足夠理由。" } }, { "doc_id": 22, "seg_id": 81, "translation": { "en": "This court grants the appellant leave to appeal against conviction and allows his appeal. The conviction is quashed, and at the same time it is ordered that should the respondent apply for a retrial, the application should be made within 14 days after this judgment is handed down. It is also ordered that the appellant should continue to be remanded in custody pending further direction from the court.", "zh-HK": "本庭批准上訴人就定罪上訴，並裁定上訴人上訴得直。本庭撤銷針對上訴人的定罪裁決，並同時下令如答辯人作出重審申請，需要在本判案書頒下後14天內作出。本庭亦下令上訴人須繼續還押，等候法庭的進一步指示。" } }, { "doc_id": 22, "seg_id": 82, "translation": { "en": "Ms Priscilla Lam, instructed by Messrs Morley Chow Seto, assigned by the Legal Aid Department, for the Appellant.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員單偉琛代表。" } }, { "doc_id": 22, "seg_id": 83, "translation": { "en": "Mr Eddie Sean, Senior Assistance Director of Public Prosecutions of the Department of Justice, for the Respondent.", "zh-HK": "上訴人：由法律援助署委派麥樂賢周綽瑩司徒悅律師行轉聘大律師林芷瑩代表。" } }, { "doc_id": 23, "seg_id": 1, "translation": { "en": "Hon Cheung JA (delivering the reasons of judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 23, "seg_id": 2, "translation": { "en": "The Applicant was charged with one count of rape, contrary to section 118(1) of Crimes Ordinance, Cap. 200. He was tried before Tong J sitting with a jury and was convicted of the charge by the jury by a majority of 5 to 2. The Applicant was sentenced to 7 years’ imprisonment. The Applicant applied for leave to appeal against the conviction. Having heard his application, this Court dismissed it. The Reasons for Judgment are as follows.", "zh-HK": "申請人被控一項強姦罪，違反《刑事罪行條例》（香港法例第200章）第118(1)條。案件經高等法院原訟法庭法官湯寶臣會同陪審團審理，陪審團以5比2大比數裁定申請人罪名成立，申請人被判處7年監禁。申請人就定罪提出上訴許可申請。本庭在聆訊後駁回申請，以下是本庭判案理由。" } }, { "doc_id": 23, "seg_id": 3, "translation": { "en": "Facts of the case", "zh-HK": "案情" } }, { "doc_id": 23, "seg_id": 4, "translation": { "en": "The Applicant was charged with raping the victim at his residence on 27 February 2008. This Court adopts the outline of the Defence’s and the Prosecution’s case as submitted by Mr. Suen Kam Hee, Counsel for the Applicant.", "zh-HK": "申請人面對的控罪是指他在2008年2月27日在他居所強姦受害人。本庭採用申請人代表律師孫錦熹大律師就控辯雙方案情的簡述。" } }, { "doc_id": 23, "seg_id": 5, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 23, "seg_id": 6, "translation": { "en": "The victim was a 19-year-old woman when the incident happened. She was educated to Form 4 and worked as a clerk. Two or three years before the incident, she came to know the Applicant on the internet. The Applicant, then 33, was a police constable who lived in the Disciplinary Force Quarters. They had phone conversations. On the day of the incident, the victim asked the Applicant to help her fix her electronic game machine. The Applicant told the victim to come to his residence which she did as scheduled. After the Applicant had fixed the victim’s electronic game machine, he demonstrated to her how to use it. At that time the victim was sitting on the sofa in the living room, the Applicant said it was cold so he covered himself with a quilt and slept in the sofa. He was sleeping behind the victim who continued to play electronic games. A while later, the Applicant embraced the victim’s waist with his hands, but she pushed him away. The Applicant then caressed her thighs, but she pushed him away again. The victim wanted to get up but the Applicant pulled her down. The Applicant then fondled her breasts and other parts of the body over her clothes. The victim told him not to do so but the Applicant ignored her and went on to push her on the sofa, pressing against her with his legs. She wanted to push him away and turn around, but as the Applicant was truly very heavy (the Applicant was 6 feet tall and 100 kilograms in weight whereas the victim was petite), she was not successful. The Applicant forcibly kissed her neck and face. He also removed her bra. Then the Applicant carried her into the room and put her onto the bed. The victim wanted to leave but was pinned down by the Applicant. She was all along crying but she did not say anything. The Applicant pinned the victim down with his legs, removed her clothes as well as his own and kissed her body. The victim said no, but the Applicant told her not to be afraid. The victim wanted to push him away and to get dressed but could not do so because the Applicant was lying on top of her. The victim was all along crying. The Applicant inserted his fingers into the private parts of the victim and then he inserted his penis into her private parts. When the victim put up resistance, his penis fell out. The Applicant again inserted his fingers into the private parts of the victim, and then he inserted his penis. The victim felt a bit of pain. Then the Applicant ejaculated outside her body. During the whole course, the victim was all along crying and she also told the Applicant not to do it. The Applicant asked the victim why she cried, but she did not answer him. Afterwards, the Applicant went to the toilet to clean his body. The victim put on her clothes and when the Applicant came out of the toilet, she went in to phone her friend (PW2). But the victim was only crying over the phone and could not say anything. She therefore sent a message to PW2 to say that she “had been raped”. PW2 returned her call to ask how she was doing and they arranged to meet at the MTR. When the victim was about to leave, the Applicant said to her,", "zh-HK": "受害人在案發時是一名19歲的女子。她有中四教育程度，做文職工作，事發前兩三年，在網上認識申請人。申請人當時是33歲，任職警員，居住在紀律部隊宿舍。雙方亦有通電話。案發當日，受害人要求申請人幫助她修理她的電子遊戲機。申請人叫受害人到他家。受害人依約到訪。申請人替受害人修理好遊戲機後，向受害人示範使用。當時受害人坐在客廳的梳化椅上，申請人說他感覺冷，於是便蓋上被睡在梳化椅。他是睡在受害人的後面，而受害人繼續玩著她的遊戲機。過了一會，申請人用手攬著受害人的腰，但被她推開。接著，申請人又撫摸她的大腿，但亦被她推開。受害人打算起身，但被申請人拉低。接著，申請人隔著受害人的衣服撫摸她的胸部及身體其他位置。受害人叫他不要這樣做，但申請人沒有理會及更推她落梳化椅，用腿壓著她。她想推開申請人及轉身，但不成功，因為申請人的身體實在太重（申請人高6呎，體重達100公斤而受害人身體細小）。申請人強吻她的頸、面，及除去她的胸圍。接著，申請人抱受害人入房，放她在床上。受害人想離開，但被申請人按低。她一直在哭泣，但沒有說話。申請人用腳按著受害人，脫去她和自己的衣服及吻她的身體。受害人說不要，但申請人說不用怕。受害人想推開他及穿回衣服，但因為申請人伏在她身上，故此推不動他。受害人一直在哭泣。申請人用手指插入受害人的陰部，然後再次用他的陽具插入。受害人反抗，令他的陽具脫離。申請人再次用手指插入受害人的陰部，接著再把陽具插入，受害人感到少少痛楚。之後申請人在她的體外射精。在整個過程之中，受害人一直在哭泣，亦有叫申請人不要這樣做。申請人亦有問受害人為甚麼哭，但她沒有回應。事後申請人去洗手間清理身體，受害人穿回衣服及在申請人離開洗手間後，入內打電話給一名朋友（控方第二證人），但受害人只是哭泣，不能說話，於是便傳訊息「畀人姦咗」給第二證人。第二證人回電問候她及相約在地鐵見面。當受害人預備離開時，申請人對她說：" } }, { "doc_id": 23, "seg_id": 7, "translation": { "en": "“Sorry, you may hit me or scold me. Don’t call the police. I’m married with a son. I can’t afford to lose my job.”", "zh-HK": "「對唔住，妳打我又好，鬧我又好，唔好報警，我結咗婚，又有仔，唔可以冇咗份工。」" } }, { "doc_id": 23, "seg_id": 8, "translation": { "en": "The Applicant also asked her if she would ‘treat’ him as a friend. The victim said she did not know, but since the Applicant was blocking the doorway, the victim perfunctorily said ‘yes’ and left. While she was taking the MTR, the victim called another friend (PW4) to tell him that she had been raped and asked him whether she should report the matter to the police. PW4 indicated that she should call the police and told her not to cry. When the victim reached the MTR station, she called PW2. PW2 suggested that she should first notify her boyfriend (PW3). After PW2 and the victim met, the victim called PW3 to tell him what happened. Then the victim and PW2 went to make a report at the police station.", "zh-HK": "申請人又問她可否「當」他是朋友，受害人說不知道。但由於申請人擋著門，受害人便敷衍地說「當」，之後便離開。受害人在地鐵途中打電話給另一名朋友（控方第四證人）說被人強姦，問他應否報警。第四證人表示贊成，叫她不要哭。受害人到達地鐵站後致電第二證人，第二證人建議她先通知她的男朋友（即控方第三證人）。第二證人與受害人見面後，受害人致電第三證人向他說出事故。接著受害人與第二證人到警署報警。" } }, { "doc_id": 23, "seg_id": 9, "translation": { "en": "When the victim gave evidence, she added that the Applicant performed oral sex on her and required her to perform the same for him. She also admitted that when they chatted over the internet and the phone, they had built up friendship. On the day of the incident, she voluntarily went up to the Applicant’s residence. When she was asked that if she was unwilling to have sexual intercourse, she would have had ample opportunity to escape, shout, flee or resist. The victim explained that she did not do so because she was restricted by the Applicant whom she regarded as a friend, and that the Applicant should know that it was wrong for him to do so. The victim agreed that the Applicant neither used violence on her nor threatened her. She also agreed that in her witness statement to the police, she did not mention that the Applicant performed oral sex on her or that she started crying when she was on the sofa.", "zh-HK": "受害人作供時補充說，申請人有替她口交及要求她替他口交。她亦承認雙方在網上及電話交談時，已經建立朋友感情。事發當日，是她自願上申請人的家。當被問及如果她不願意性交，她應有很多機會逃走、大叫或逃避反抗，受害人解釋是因為受制於申請人，視他是朋友，所以沒有這樣做，而申請人應該知道這樣做是錯的。受害人同意申請人沒有對她使用武力或者恐嚇她，她亦同意在給警方的證人口供內沒有提到申請人替她口交，或者她在梳化椅上已經開始哭泣的情況。" } }, { "doc_id": 23, "seg_id": 10, "translation": { "en": "PW2, PW3 and PW4 confirmed the testimony of the victim. PW6 was a woman sergeant who testified that when a statement was taken from the victim, she was calm and gave a clear account of what happened. The victim was properly dressed at that time with no superficial injury and did not appear to be uncomfortable or frightened. The victim did not tell her that she started crying when she was on the sofa. The victim also mentioned that the Applicant had put his arm around her shoulders and she did not resist.", "zh-HK": "第二、三、四證人證實受害人的供詞。控方第六證人是一名女沙展，她說受害人在提供口供時態度平靜及清楚地講出事件。當時受害人衣著整齊，沒有表面傷勢或不舒服或驚慌。受害人亦沒有對她說在梳化椅上已經開始哭泣。受害人亦提及申請人曾經用手搭著她的膊頭，而她沒有抵抗。" } }, { "doc_id": 23, "seg_id": 11, "translation": { "en": "Defence case", "zh-HK": "辯方案情" } }, { "doc_id": 23, "seg_id": 12, "translation": { "en": "The Applicant elected to give evidence. He first regarded the victim as an ordinary friend but after the victim talked to him about some private matters and relationship problems, the Applicant took her as a bosom friend. He thought that she had a tender feeling toward him, so he asked her to come to his home. After he helped the victim to fix her electronic game machine, they played it together. He even grabbed her hands to teach her how to play it. The victim did not say or do anything to object or resist. The Applicant said that was a signal to indicate that he could go one step further. So he put his hands on her waist and shoulders. The Applicant still did not object or resist, so he went on further and slept behind the victim and touched her body with his hands. At that time the victim did not cry. She was simply shy and murmured, “Oh, no”. But her facial expression showed that she was not rejecting him. Then the Applicant carried the victim to his room and had sexual intercourse with her. The victim never put up any resistance. The Applicant said that if the victim cried or raised objection, he definitely would not have done it. When the Applicant carried the victim, she even put her arms on his shoulders. When they had sexual intercourse, not only did the victim raise no objection, she even spread her legs to let him in and they had the sexual intercourse in different postures. The Applicant said that he did not pin the victim down with his legs, and that should he have done so, it would be very difficult to have the intercourse. The Applicant said that after he ejaculated, he went to clean up in the toilet. When he came out, the victim had already dressed herself and showed no special facial expression. When the victim came out from the toilet, she asked the Applicant if he had any money. The Applicant said he did not have any. Then the victim turned around quietly and left hurriedly. The Applicant did not apologize to her and did not ask her not to report to the police. Throughout the whole incident, the victim never said that she did not want to have sexual intercourse with him and she never cried. After the victim left, he called her three times but the victim did not answer his calls. The Applicant emphasized that he had sexual intercourse with the victim with her consent. The Applicant said that if he had subdued the victim by force, there would be injuries or swellings on the victim. He denied that he had sexual intercourse with the victim knowing that she was not voluntary. He also denied that he was reckless as to whether the victim consented to the sexual intercourse and had the intercourse with her forcibly.", "zh-HK": "申請人選擇作供，他起初視受害人為普通朋友，但後來受害人與他講了一些私人和感情問題後，申請人便當她是知己。他認為受害人對他有好感，便叫她到他的家裡。他替受害人修理好遊戲機後，便一同玩遊戲機，他還捉著她的手教她玩。受害人沒有用言語或行動反對或反抗。申請人說這是一項訊息，表示他可以進一步行動。他於是把手放在她的腰和膊頭。申請人依然沒有反對或反抗，他於是便再提升行動，睡在受害人的後面及用手摸她的身體。當時受害人沒有哭泣，只是害羞地低聲說「唔好喇」，但受害人的表情不是拒絕他。接著申請人抱受害人入房，與她性交。受害人一直沒有反對，申請人說如果受害人有哭泣或反對，他一定不會這樣做。當申請人抱著受害人時，她還用手搭著他的膊頭。當雙方性交時，受害人不但沒有表示不滿，還張開腿讓他進入，及採用不同的姿勢進行性交。申請人說他沒有用腳按著受害人，如果有的話便很難性交。申請人說當他射精後，便去洗手間清理。當他出來時，受害人已經穿回衣服，沒有任何特別表情。當受害人從洗手間出來後便問申請人有沒有錢。申請人說沒有，受害人接著轉身靜靜地及急促地離去。申請人從沒有向她道歉，叫她不要報警。受害人由頭到尾都沒有說過不要和他性交，亦沒有哭泣。受害人離開後，他曾三次致電給她，但受害人沒有接聽。申請人強調他是在受害人同意的情況下與她性交的。申請人說如果他有武力制服受害人，受害人會有傷勢或腫痛。他否認他是知道受害人不願意性交，他亦否認罔顧受害人是否同意而強行與她性交。" } }, { "doc_id": 23, "seg_id": 13, "translation": { "en": "First Ground of Appeal", "zh-HK": "第一上訴理由" } }, { "doc_id": 23, "seg_id": 14, "translation": { "en": "The first Ground of Appeal is that Tong J did not follow the Judiciary’s standard directions when he directed the jury on the elements of the offence. When giving his directions to the jury, Tong J said that for convenience sake, he would suggest that they should adopt the following six steps in their deliberation of the verdict. However Tong J emphasized that it was only a suggestion and the jury could decide for themselves the appropriate way to reach the verdict. The six steps are listed as follows:", "zh-HK": "第一上訴理由是指湯法官沒有就犯罪原素根據司法機構的標準指引引導陪審團。湯法官在引導陪審團時說為了方便他們作出裁決，他建議採用以下六項步驟來考慮他們的判決，但湯法官重申這只是一項建議，陪審團可以用他們認為適當的方法去作出決定。該六項步驟如下：" } }, { "doc_id": 23, "seg_id": 15, "translation": { "en": "“Firstly, if you believe the evidence of the defendant or you cannot rule out the possibility of what he said, you should return a not-guilty verdict. Although the defendant never said that he had verbally asked (the victim) if she agreed to the sexual intercourse, if the acts or response of (the victim) at that time were as what the defendant had said or described, it would be obvious that (the victim) had by her body language indicated that she consented to the sexual intercourse. Secondly if you don’t accept all the evidence given by the defendant, you have to rely on the part of his evidence that you accept to assess whether (the victim) consented to the sexual intercourse. Thirdly, if you don’t believe the evidence of the defendant at all, you cannot find the defendant guilty right the way. You still have to consider the prosecution evidence, mainly the evidence of the (victim), to decide whether the charge can be proved beyond reasonable doubt. Fourthly, if you don’t believe that (the victim) is a credible and reliable witness, you have to give the benefit of the doubt to the defendant even if you don’t believe the defendant either. The reason is that at the end of the day the prosecution fails to prove the charge beyond a reasonable doubt. Fifthly, if you accept that (the victim) is a credible witness and that her evidence is also reliable, you may consider on that pre-requisite whether (the victim) was really unwilling to have sexual intercourse, and that the defendant knew or was reckless as to whether (the victim) consented to the sexual intercourse. Sixthly, in any event, if you conclude that the defendant subjectively had the genuine belief that (the victim) consented to the sexual intercourse, or if you cannot rule out the possibility, you have to find the defendant not guilty.”", "zh-HK": "「…第一，如果大家相信被告嘅證供或者認為唔可以抹煞佢所講嘅可能性嘅話，大家就應該判被告無罪。被告雖然都冇話曾經開口問（受害人）是否同意性交與否，但如果當時（受害人）真係有被告所講被告所描述嘅行為、反應嘅話，咁好明顯（受害人）係已經用咗佢身體語言，表示咗佢係同意性交嘅；第二，如果大家唔接納被告所講嘅全部證供，咁大家就要基於你哋所接納佢所講嘅證供部分，去評定（受害人）係唔係同意性交；第三，如果大家完全唔相信被告所講嘅證供，大家都唔可以立即判定被告人有罪，大家要考慮控方嘅證據，主要就係（受害人）嘅證供是否能夠達到毫無合理疑點嘅水平；第四，如果大家唔相信（受害人）係可信可靠嘅證人，就算大家亦都唔相信被告，咁大家都要將疑點利益歸於被告，因為控方最終唔能夠將控罪證明到毫無合理疑點；第五，如果大家接納（受害人）係可信嘅證人，佢嘅證供亦係可靠嘅話，咁大家就可以基於呢一個大前提去考慮（受害人）是否真係唔願意性交；而被告知道或者係罔顧（受害人）嘅意願而同佢性交呢個問題喇；第六，無論點樣，如果大家結論認為被告喺主觀上係真誠咁相信（受害人）係同意與佢性交，或者係唔可以抹煞呢個可能性嘅話，咁大家都要判被告無罪。」" } }, { "doc_id": 23, "seg_id": 16, "translation": { "en": "Mr. Suen submitted that it was not easy for the jury to remember those six steps. Unless they wrote them down, otherwise they would find it hard to understand the content and arrive at the appropriate verdict. Mr. Suen said that it was difficult to fully understand the crux and key issues within a short time. Those steps engaged forward and backward reasoning at the same time which would inevitably cause confusion. The jury would be left at a loss as to what to do and could not focus on the core issues. The standard jury directions referred to by Mr. Suen can be seen in the judgment of HKSAR v Tang Siu Fung & Another (CACC 418/2008, date of reasons for judgment: 25 January 2010), at paragraph 31:", "zh-HK": "孫大律師指出，陪審團是不容易記著這六個步驟，除非陪審團把它寫下來，否則他們根本是難以明白其內容而作出適當的裁決。孫大律師說，該六個步驟難於短時間完全理解關鍵及重心的問題。該步驟同時用正、反的方法，難免引起陪審團的混淆及無所適從，不容易集中思考核心問題。孫大律師所說的標準陪審團指引可見於香港特別行政區 訴 鄧兆峰與另一人，（CACC 418/2008，判案日期，2010年1月25日）第31段：" } }, { "doc_id": 23, "seg_id": 17, "translation": { "en": "“Before you may convict the accused, you have to be sure of each of the following matters:", "zh-HK": "「你們必須先要肯定下列每項事情，才可以裁定被告有罪：" } }, { "doc_id": 23, "seg_id": 18, "translation": { "en": "that the accused had sexual intercourse with Ms [X];", "zh-HK": "被告與[X]女士性交；" } }, { "doc_id": 23, "seg_id": 19, "translation": { "en": "that at the time of that act of sexual intercourse, Ms [X] did not consent to it; and", "zh-HK": "性交時，[X]女士並不同意；以及" } }, { "doc_id": 23, "seg_id": 20, "translation": { "en": "that at the time of the sexual intercourse either the accused knew that Ms [X] did not consent, or was reckless as to whether she consented to sexual intercourse. The accused was reckless as to whether Ms [X] consented to sexual intercourse if you are sure that the accused did not know and did not care whether she was consenting or not and carried on regardless. In other words, his state of mind was that he could not have cared less.", "zh-HK": "性交時，被告知道[X]女士不同意性交，或者罔顧她是否同意性交。若你們肯定，被告並不知道，亦不理會她是否同意，卻仍不顧一切繼續下去，換句話說，他當時的心態是根本毫不在乎的，那麼，被告便是罔顧[X]女士是否同意性交了。" } }, { "doc_id": 23, "seg_id": 21, "translation": { "en": "If it is or may be the case that the accused believed that she was consenting, then he cannot be guilty of rape. It is not for the accused to prove that he believed that she was consenting; rather, it is for the prosecution to prove, so that you sure, that he did not believe that she was consenting to sexual intercourse. And what if he held that belief but was mistaken? If it is or may be the case that he held a genuine but mistaken belief that she was consenting, then you must acquit him. In deciding whether or not he believed or may have believed that she was consenting, you should have regard to the existence or absence of reasonable grounds for such a belief, and to all the surrounding circumstances. But the question must always be whether you are sure that he himself did not hold such a belief.”", "zh-HK": "若情況是，或者可能是：被告相信她是同意性交的，那麼，他的強姦罪名便不成立。被告無須證明，他相信受害人是同意性交的。控方必須證明，令你們肯定：被告不相信受害人是同意與他性交的。若被告只是因為誤會才相信受害人是同意與他性交的，那又會怎樣呢?若情況是，又或可能是被告真的以為受害人是同意性交的，但其實是他誤會了，那麼，你們便須裁定他無罪。你們決定被告是否相信，或者可能相信受害人是同意性交時，除了應該考慮是否有合理的理由，令被告相信如此外，還須考慮所有的周遭情況。問題始終是：你們是否肯定，被告本人其實並無這樣相信過。」" } }, { "doc_id": 23, "seg_id": 22, "translation": { "en": "Mr. Suen submitted that the standard directions were simpler and easier to comprehend, and could help the jury to focus better on the issue as to whether the Applicant held the belief that the victim consented to the sexual intercourse. That was the fundamental issue in the present case. If Tong J had adopted the standard directions instead of the six steps put forward by him, the jury would be at a better position to arrive at the right verdict.", "zh-HK": "孫大律師指有關標準指引比較簡單及容易理解，及更能引導陪審團把焦點集中於申請人是否相信受害人是否同意性交。這正是本案的基本爭議點。若湯法官以標準指引代替他提出的六個步驟，陪審團更能作出一個正確的裁決。" } }, { "doc_id": 23, "seg_id": 23, "translation": { "en": "Mr. Suen conceded that there was nothing wrong with the content of the six steps per se. We do not agree that the six steps set out by Tong J would complicate matters or confuse the jury. In fact the six steps mentioned by Tong J would often appear at different stages of a judge’s speech when he was giving directions to the jury. What Tong J did was merely to deal with the relevant directions together. The first three of the six steps concerned solely the Applicant:", "zh-HK": "孫大律師承認該六項步驟本身內容沒有錯誤。本庭不同意湯法官所列出的六項步驟是繁複或會令陪審團困擾。其實湯法官所說的六個步驟，往往是在法官指導陪審團的陳詞內不同的段落出現。湯法官只不過是將有關的指引集中處理而已。該六項步驟的頭三項步驟是完全涉及申請人：" } }, { "doc_id": 23, "seg_id": 24, "translation": { "en": "Firstly, where the jury accepted the evidence of the Applicant in its entirety;", "zh-HK": "第一，陪審團是完全接納申請人的證供；" } }, { "doc_id": 23, "seg_id": 25, "translation": { "en": "Secondly, where they only accepted part of the Applicant’s evidence;", "zh-HK": "第二，他們只是接納申請人的部份證供；" } }, { "doc_id": 23, "seg_id": 26, "translation": { "en": "Thirdly, where they did not accept the Applicant’s evidence at all.", "zh-HK": "第三，他們是完全不接納申請人的證供。" } }, { "doc_id": 23, "seg_id": 27, "translation": { "en": "Tong J gave directions to the jury as to what to do under those three scenarios. Such were the questions that members of the jury, being laymen without legal knowledge, would often encounter in their deliberation of the facts of the case.", "zh-HK": "湯法官向陪審員提出在這三個情況之下，他們應該如何處理裁決。這些問題通常亦都是陪審團作為沒有法律知識的人士在思考案情時通常會碰到的問題。" } }, { "doc_id": 23, "seg_id": 28, "translation": { "en": "The fourth and fifth steps concerned the victim and the Applicant. The fourth step referred to the situation where the jury neither accepted the evidence of the victim nor that of the Applicant. In that case, it showed that the prosecution had failed to prove the offence up to the standard required, namely beyond a reasonable doubt.", "zh-HK": "第四、第五項步驟是涉及受害人及申請人。第四步驟是指若果陪審團不接納受害人的證供，亦不接納申請人的證供。在這情況下，這表示控方未能達到證明控罪沒有合理疑點的標準；" } }, { "doc_id": 23, "seg_id": 29, "translation": { "en": "The fifth step referred to the situation where the jury believed the evidence of the victim. Under such circumstances, Tong J reminded the jury how they should approach the crux of the matter, namely whether the victim consented to the sexual intercourse.", "zh-HK": "第五項步驟是陪審團相信受害人的證供。在這情況下，湯法官提醒陪審團他們如何處理核心議題，即受害人是否同意性交。" } }, { "doc_id": 23, "seg_id": 30, "translation": { "en": "Tong J reinforced again in the sixth step that if the jury accepted the subjective belief of the Applicant, they had to find him not guilty.", "zh-HK": "第六項步驟是湯法官再次重申如果陪審團接納申請人的主觀觀念，他們需要判申請人無罪。" } }, { "doc_id": 23, "seg_id": 31, "translation": { "en": "Therefore, we do not think that there was any irregularity in Tong J’s directions which guided the jury to approach the facts by six steps. As for the first part of the standard directions, Tong J had directed the jury on the basis of the standard directions in the following terms:", "zh-HK": "故此本庭不認為湯法官指導陪審團使用六項步驟考慮案情有任何不妥之處。至於標準指引內的第一部份指引，湯法官已經根據該標準指引向陪審團作出以下的指示：" } }, { "doc_id": 23, "seg_id": 32, "translation": { "en": "喺法律上，強姦嘅定義就係：(1) 任何男子與一名女子性交，而性交時該女子對此並不同意；(2) 當時該名男子知道女子不同意性交，或罔顧該女子是否對此同意。\t“The legal definition of rape is that: (1) A man had sexual intercourse with a woman but she did not consent to it at the time of the intercourse; (2) At that time the man knew that she did not consent or was reckless as to whether she consented to the intercourse.", "zh-HK": "「" } }, { "doc_id": 23, "seg_id": 33, "translation": { "en": "The law also requires that at a trial of an offence of rape, the jury when deciding whether a man believed a woman consented to the sexual intercourse had to take into account other relevant mattes, including whether the man had reasonable grounds to believe that the woman consented to the sexual intercourse.”", "zh-HK": "法例亦都要求喺強姦罪嘅審訊之中，陪審團如果須要考慮一名男子是否相信一名女子同意性交嘅話，則在考慮此事時，須顧及其他有關事項，亦須顧及該名男子是否有合理理由相信該名女子同意性交。」" } }, { "doc_id": 23, "seg_id": 34, "translation": { "en": "Tong J clearly explained to the jury that the Applicant in the present case admitted that he had sexual intercourse with the victim, and that the jury should focus on whether the Applicant knew that the victim did not consent or was reckless as to whether the victim consented to the sexual intercourse. In this regard, Tong J gave further detailed directions:", "zh-HK": "湯法官已經明確地向陪審團說明，在本案申請人承認與受害人性交，而陪審團所需要集中考慮的是申請人是否知道受害人不同意性交，或者是罔顧受害人不同意性交。就這方面，湯法官向陪審團作出更詳細的指引：" } }, { "doc_id": 23, "seg_id": 35, "translation": { "en": "“… As to whether (the victim) consented to the sexual intercourse and whether the defendant knew that (the victim) consented or that he knew that she did not consent to the sexual intercourse, you have to make a finding on the strength of the evidence. If at the end of the day you think that (the victim) consented to the sexual intercourse, or could have consented to it, then of course the offence of rape is not established. If at the end of the day you think that (the victim) did not consent to the sexual intercourse, but the defendant did not or might not know that she did not consent, then you cannot find him guilty.", "zh-HK": "「…至於（受害人）是否同意性交及被告人是否知道（受害人）同意或者不同意性交呢一方面，大家就要基於證據去作判斷喇。如果大家最後認為（受害人）係同意性交嘅話，或者係有可能係同意嘅話，咁呢個強姦罪當然不能成立。如果大家最後認為（受害人）不同意性交，但係被告唔知道對方係不同意嘅，或者有可能被告係唔知道嘅話，咁大家都不能將佢定罪。" } }, { "doc_id": 23, "seg_id": 36, "translation": { "en": "When considering whether he was reckless, you have to be sure that the defendant at that time did not believe that (the victim) was willing, and that he did not care whether she was willing and proceeded to have sexual intercourse with her. But the important point is that even when the defendant did not have reasonable grounds to believe that (the victim) agreed to have sexual intercourse with him, if you think that he subjectively thought that (the victim) was willing to have sexual intercourse with him, or that there was the possibility that he had genuinely mistaken that she was willing, the offence of rape cannot be established. Perhaps I should repeat these two points.", "zh-HK": "各位喺考慮罔顧嘅時候，你哋必須肯定被告當時唔係相信（受害人）自願，卻毫不理會佢是否自願而同佢性交，但係重要嘅係，就算被告當時並冇合理嘅理由相信（受害人）同意與佢性交，如果各位認為被告主觀上真係以為或者有可能真係誤以為（受害人）係自願同佢性交嘅話，咁呢個強姦罪名就都不能成立嘅，我將呢兩點或者再講一次。" } }, { "doc_id": 23, "seg_id": 37, "translation": { "en": "When considering whether he was reckless, you have to be sure that the defendant at that time did not believe that (the victim) was willing, and that he did not care whether she was willing and proceeded to have sexual intercourse with her. But the important point is that even when the defendant did not have reasonable grounds to believe that (the victim) agreed to have sexual intercourse with him, if you think that he subjectively thought that (the victim) was willing to have sexual intercourse with him, or that there was the possibility that he had genuinely mistaken that she was willing, the offence of rape cannot be established.”", "zh-HK": "喺考慮罔顧嘅時候，你哋必須肯定被告當時唔係相信（受害人）自願，卻毫不理會佢是否自願而同佢性交，但係重要嘅係，就算被告當時並冇合理嘅理由相信（受害人）同意與佢性交，如果各位認為被告主觀上真係以為或者係有可能真係誤以為（受害人）係自願同佢性交嘅話，咁呢個強姦罪名就都不能成立。」" } }, { "doc_id": 23, "seg_id": 38, "translation": { "en": "As a matter of fact, the content of the two paragraphs of directions repeated by Tong J, namely ‘If the jury thinks that the Applicant genuinely held the subjective belief or that he might have the mistaken belief that the victim willingly had sexual intercourse with him, the charge of rape cannot be established’, was consistent with the content of the second part of the standard directions.", "zh-HK": "其實湯法官所重覆的兩段指引「如果陪審團認為申請人主觀上真是以為或者是有可能真是誤以為受害人是自願與他性交的話，在這情況下強姦罪名不能成立」的內容是符合標準指引第二部份所說的內容。" } }, { "doc_id": 23, "seg_id": 39, "translation": { "en": "Although Tong J did not follow the second part of the standard directions to say that:", "zh-HK": "雖然湯法官沒有如標準指引第二部份所說：" } }, { "doc_id": 23, "seg_id": 40, "translation": { "en": "“The defendant does not have to prove that he believed the victim consented to the sexual intercourse. It is for the prosecution to prove and satisfy you that the defendant did not believe that the victim consented to have sexual intercourse with him.”", "zh-HK": "「被告無須證明，他相信受害人是同意性交的。控方必須證明，令你們相信：被告人不相信受害人是同意與他性交的。」" } }, { "doc_id": 23, "seg_id": 41, "translation": { "en": "But according to what Tong J previously said to the jury:", "zh-HK": "但根據之前湯法官向陪審團所說：" } }, { "doc_id": 23, "seg_id": 42, "translation": { "en": "“It is a fundamental principle of our legal system that you have to presume the innocence of the defendant. In other words, it is for the prosecution to prove the guilt of the defendant and the defendant does not have to prove that he is innocent. As a matter of fact, the defendant does not have to prove anything. You have to be satisfied beyond all reasonable doubts that the defendant is guilty before you can convict him of the charge.”", "zh-HK": "「按照我哋法律制度嘅基本原則，各位必須假定被告係無罪嘅，即係話控方要證明被告有罪，而被告毋須證明佢係無辜。事實上，被告毋須要證明任何事情，各位必須要喺毫無合理疑點下，確信被告有罪，然後先至可以裁定佢有罪。」" } }, { "doc_id": 23, "seg_id": 43, "translation": { "en": "In view of the Applicant’s subjective belief and the directions on the six steps as cited in the preceding paragraphs, we are of the view that Tong J did not have to mechanically repeat or repeat verbatim the content of the standard directions.", "zh-HK": "及顧及上文所引述的有關申請人主觀觀念及六項步驟的指引，本庭認為在本案湯法官是不須搬字過紙機械式地覆述標準指引的內容。" } }, { "doc_id": 23, "seg_id": 44, "translation": { "en": "Second Ground of Appeal: Directions regarding a distressed victim", "zh-HK": "第二上訴理由：受害人困擾的指引" } }, { "doc_id": 23, "seg_id": 45, "translation": { "en": "Tong J gave directions to the jury regarding a ‘victim being distressed’ after the incident:", "zh-HK": "湯法官對陪審團作出事發後「受害人情緒困擾」的指引，內容如下：" } }, { "doc_id": 23, "seg_id": 46, "translation": { "en": "“… Members of the jury, you have also heard ‘the victim’ and her friends say that after the incident, she expressed her emotion by crying. Her behaviours could show that she was distressed. Such evidence might have evidential value in relation to the issue of the case. But when you consider such evidence or give weight to it, you have to decide two things beforehand: Firstly, whether the distressed condition of (the victim) was genuine, that is whether she really cried. Secondly, whether there was a causal relationship between her condition and the alleged sexual offence, that is whether the reason of her crying had anything to do with the alleged rape. If so, you may consider how to assess the value of the evidence of her distress and how much weight should be attached to it.”", "zh-HK": "「…各位陪審員，你哋亦都聽過（受害人）自己同埋佢啲朋友 都有提到，喺事發後有喊過呢個情緒嘅表現嘅。而佢咁嘅表現，可以話表示到佢係受到困擾，而呢一方面嘅證據對案中嘅爭議點可以有證據上嘅價值，但係大家喺考慮或者對呢啲證據給予比重嘅時候，大家先要決定兩點：第一，（受害人）感到困擾嘅情況是否屬實，即係話佢係唔係真係有喊；第二，該情況是否與被指嘅性罪行有著因果性嘅關係，即係話佢喊嘅原因是否與被強姦有關或者無關。如果係嘅話，大家就可以考慮一下如何去評定困擾證據嘅份量同埋比重喇。」" } }, { "doc_id": 23, "seg_id": 47, "translation": { "en": "Mr. Suen cited the guidelines laid down by the Court of Final Appeal in Leung Chi Keung v HKSAR [2004] 7 HKCFAR 526 (paragraph 41) on the evidence of a distressed victim:", "zh-HK": "孫大律師引用終審法院在Leung Chi Keung v HKSAR [2004] 7 HKCFAR 526就受害人困擾證供的指引（第41段）：" } }, { "doc_id": 23, "seg_id": 48, "translation": { "en": "(1)\t陪審團必須在無合理疑問下信納：（一）申訴人感到困擾的情況屬實；及（二）該情況與涉案性罪行有因果關係。換句話說，他們必須信納：（一）困擾的狀況不是假裝或虛構出來；及（二）該狀況只能歸因於被指的性罪行而非任何其他原因。陪審團就這些問題作決定時，必須考慮所有相關情況。\t“(1)\tThe jury must be satisfied beyond reasonable doubt (i) that the complainant’s distressed condition was genuine and (ii) that there was a causal connection between the distressed condition and the sexual offence.  In other words, they must be satisfied that (i) the distressed condition was not feigned and (ii) was only referable to the alleged sexual offence and not to any other cause.  In deciding on those matters, they must take into account all relevant circumstances.", "zh-HK": "「" } }, { "doc_id": 23, "seg_id": 49, "translation": { "en": "假如陪審團如此信納，他們可向困擾證據給予適當的份量。給予多少份量，全由陪審團決定。\t(2)\tWhere the jury is so satisfied, they could give such weight to the evidence of distress as is appropriate.  Weight is entirely a matter for them.", "zh-HK": "(2)" } }, { "doc_id": 23, "seg_id": 50, "translation": { "en": "假如陪審團未能如此信納，他們不應理會困擾證據。\t(3)\tWhere the jury is not so satisfied, they should disregard the evidence of distress.", "zh-HK": "(3)" } }, { "doc_id": 23, "seg_id": 51, "translation": { "en": "假如被告人妥為提出‘幻想’作為爭議點，陪審團絕不能運用困擾證據來駁斥以‘幻想’為基礎的抗辯理由。若然他們相信事件確可能由申訴人憑空想像出來，他們便未能信納存在著所需的因果關係。」\t(4)\tWhere fantasy has been properly raised as an issue, the jury must not use evidence of distress to rebut fantasy.  If they believe that fantasy is a possibility, they cannot be satisfied of the required causal connection.”", "zh-HK": "(4)" } }, { "doc_id": 23, "seg_id": 52, "translation": { "en": "Mr. Suen submitted that when Tong J directed the jury on distress, what he said was inconsistent with the aforesaid directions by the Court of Final Appeal and was obviously inadequate. Tong J did not remind the jury that they had to be satisfied beyond a reasonable doubt before they could accept the evidence of the victim’s distress. If they did not accept such evidence, they should disregard it.", "zh-HK": "孫大律師指出湯法官在本案所給予陪審團有關困擾的指引，不符合上述終審法院的指引及明顯不足。湯法官沒有提醒陪審團需要在毫無合理疑點下接納受害人情緒困擾的證據。若他們不接納便應該不理會有關的證據。" } }, { "doc_id": 23, "seg_id": 53, "translation": { "en": "This Court is of the view that a definitely better approach will be to adopt the guidelines of the Court of Final Appeal in full. But even if Tong J did not adopt the exact wordings, the contents of his directions were still consistent with the intent of the guidelines of the Court of Final Appeal. The first thing he told the jury was that when they considered what weight to be given to the evidence in question, they should first find that the two points mentioned by him were established, namely the distress was genuine and it had a causal relationship with the sexual offence in question. Apparently Tong J required the jury to first confirm the genuineness of the distress and its causal relationship with the rape offence before they could proceed to assess the value and weight of such evidence. That was also consistent with the guidelines of the Court of Final Appeal that if the jury was satisfied that the evidence was true and relevant, they could give appropriate weight to the evidence of distress, and the weight to be given was a matter for the jury.", "zh-HK": "本庭認為一個較完善的做法，當然是完全採納終審法院所提出的指引，但就算湯法官在本案並沒有採用完全同一樣的字眼，他所給予指引的內容亦符合終審法院的指引的原意。首先他向陪審團說，他們在考慮這些證據所應給予比重的時候，必須首先要裁定他所提出的兩點，即有關困擾是真實及與性罪行有關連的。明顯地湯法官是要陪審團首先確認有關的困擾是真實及與強姦有關連後，才可以去評定這些證據的份量及比重。這亦符合終審法院所說，假如陪審團作出信納這些證據是真實及有關連的，他們便可以就困擾證據給予適當的份量，而有關的份量是由陪審團自行決定。" } }, { "doc_id": 23, "seg_id": 54, "translation": { "en": "Regarding the issue of ‘fantasy’ referred to in paragraph 4 of the guidelines by the Court of Final Appeal, we are of the view that the present case differs from Leung Chi Keung because no issue of the victim having fantasy arose in the present case. In that case a nine-year old school boy claimed that he was sexually molested by his Physical Education teacher. When making his final submission, the defence counsel said that the alleged offence could have been the fantasy of the victim. That issue did not arise in the present case. We do not agree that when Tong J dealt with the evidence of distress, he had to give directions on the question of fantasy as required in the case of Leung Chi Keung. Although Tong J mentioned in his directions to the jury that, in sexual offences, there were cases that despite the allegations of molestation, the truth was that the allegations were fabricated. But we do not think that Tong J was required to give directions on ‘fantasy’ simply because he had mentioned the above point. The direction given by Tong J on fabricated allegations was of general application in sexual offences, but as mentioned earlier, the core issue in the present case was whether the victim consented to the sexual intercourse. Therefore the possibility of the alleged sexual act being merely the victim’s fantasy did not exist in the present case.", "zh-HK": "至於終審法院指引第4段所說的「幻想」，本庭認為本案與Leung Chi Keung一案不同之處是本案沒有涉及受害人幻想的議題。在該案一名9歲男學生聲稱被他的體育教師性侵犯。辯護律師在結案陳詞提出，有關的指控可能是受害人的幻想。這情形在本案並沒有出現。本庭不同意湯法官在處理困擾證據時，需要就幻想一事向陪審團作出如Leung Chi Keung一案的指示。雖然湯法官在指導陪審團時說，在性犯罪案件，有些人雖然聲稱受到性侵犯，但其實是可能虛構的，但本庭不認為僅以這一點湯法官便需要給予「幻想」的指引。湯法官所說的虛構指控，是適用於一般性犯罪指引，但正如上文所說，本案的核心議題是受害人是否同意性交，故此案件不存在有關的性行為純屬是受害人幻想這個可能性。" } }, { "doc_id": 23, "seg_id": 55, "translation": { "en": "In any event, if the jury in the present case accepted the evidence of the victim, they could rely on the evidence of her distress and attach appropriate weight to it.", "zh-HK": "無論如何，在本案如果陪審團接納受害人的證供，他們是可以引用她的困擾情緒而給予適當的比重。" } }, { "doc_id": 23, "seg_id": 56, "translation": { "en": "Third Ground of Appeal", "zh-HK": "第三上訴理由" } }, { "doc_id": 23, "seg_id": 57, "translation": { "en": "Mr. Suen submitted that Tong J did not give detailed directions to the jury in respect of the evidence that was favourable to the Applicant or the doubts in the case. Mr. Suen said:", "zh-HK": "孫大律師指湯法官沒有就對申請人有利的證據或疑點，詳細地向陪審團作出指引。孫大律師說：" } }, { "doc_id": 23, "seg_id": 58, "translation": { "en": "When the Applicant was with the victim, he did not threaten or use violence on her, but she did not cry aloud, dodge, or put up strong resistance to stop the molestation by the defendant. Nor did she escape when she had ample opportunity to do so. That was a very important doubt. Her explanation was that she took him as a friend and did not do any of the above, and that he should have known that what he did was wrong and that he should not have knowingly violated the law. Her explanation was a contrived one. She was an adult with working experience and experience of sexual intercourse. When the Applicant touched her body, it was impossible that she did not realize that he was getting ready to have sexual contact with her. Given that she did not put up any strong resistance against the bodily contact by the Applicant, would the Applicant be led to think that she had no objection against having sexual intercourse with him? As a matter of fact, when questioned by the Judge, she agreed that she did not tell the Applicant directly that she did not consent to the sexual intercourse. Tong J neither made detailed analysis nor gave direction on a crucial doubt such as this.", "zh-HK": "申請人在與受害人相處的整個過程中沒有恐嚇她，亦沒有對她使用武力，但她卻沒有大叫，或逃避，或奮力反抗被告的侵犯，或有很多機會逃走而沒有逃走，這是一重要疑點。她的解釋是因為當他是朋友，所以沒有這樣做，而他應該知道這樣是錯的，不應知法犯法她的解釋十分牽強。她是成年女子，有工作經驗，有性交經驗，對申請人向她的身體接觸沒可能不領會到他是向她準備進行性接觸，她沒有強烈的反抗是否令申請人以為她不反對雙方的性行為。事實上，她在法官提問下同意沒有直接同申請人說不同意性交。這重要疑點上，湯法官沒詳細的分析和指引。" } }, { "doc_id": 23, "seg_id": 59, "translation": { "en": "And during the sexual intercourse, for example when the Applicant performed the act of oral sex on her or when he changed his positions three times and penetrated her body without her consent, it would be really difficult to carry out or complete the sexual intercourse if she did not consent, co-operate or if she put up strong resistance. Again, Tong J neither made detailed analysis nor gave direction on a crucial doubt such as this.", "zh-HK": "而在性交過程中，如申請人對她作出口交的動作，在她不同意下以三次改變姿勢進入她身體，在她不同意不合作或強烈反抗下實在難以進行或完成性交。這重要疑點湯法官亦沒有詳細分析及指引。" } }, { "doc_id": 23, "seg_id": 60, "translation": { "en": "The victim did not sustain any abrasion/injury on her body and there was no damage to her clothes, which showed that the Applicant did not forcibly have sexual intercourse with her without her consent or against her will. Tong J neither made detailed analysis nor gave direction on this point.", "zh-HK": "受害人的身體沒有任何損傷，她的衣物亦沒有任何損毀。這顯示申請人沒有在她不同意，和違反她的意願下強行向她進行性行為，湯法官沒有詳細分析及指引。" } }, { "doc_id": 23, "seg_id": 61, "translation": { "en": "Under cross-examination, the victim said that the first person she called after the incident was not her boyfriend because she was worried that he might mind what had happened and would break up with her. However when she was giving statements at the police station, she sent a few highly explicit text-messages in which she did not seem to be sad, angry or upset at all. Her mood at that time was contradictory to her claim that she was all along crying during the rape. It was an important doubt and the relevant messages are as follows:", "zh-HK": "受害人被盤問時說事發後第一個電話不是打給男朋友，因為怕他會介意與她分手，但她在警署落口供期間卻發了幾個十分露骨的短訊。在這些短訊裏，受害人沒有流露絲毫的悲傷、憤怒或不安。這樣的心情和她稱在被強姦時一直哭泣，是令人覺得互相矛盾。這亦是一重要疑點。有關的短訊是：" } }, { "doc_id": 23, "seg_id": 62, "translation": { "en": "‘Yes, saliva all over the body, he even told me to suck the sausage, I didn’t.’", "zh-HK": "『有嘅，成身都係口水，仲叫我食腸仔，我冇』，" } }, { "doc_id": 23, "seg_id": 63, "translation": { "en": "‘Mm, the second time (I) got carried onto the bed’,", "zh-HK": "『唔，第二次畀人抱上床』，" } }, { "doc_id": 23, "seg_id": 64, "translation": { "en": "‘Mm, after he raped me and asked me questions, (he) let me go’,", "zh-HK": "『唔，佢姦完，問完我嘢，咪畀我走』，" } }, { "doc_id": 23, "seg_id": 65, "translation": { "en": "‘(I) know, it hurt so much when (I) was raped by him. When he was limp, he still wanted to insert it in. Luckily (I) didn’t get kissed by him’,", "zh-HK": "『知道了，畀佢姦好痛，軟咗又死都要放入去，好在冇畀佢錫到』，" } }, { "doc_id": 23, "seg_id": 66, "translation": { "en": "‘He also said I was very smooth’.", "zh-HK": "『佢仲話我好滑』。" } }, { "doc_id": 23, "seg_id": 67, "translation": { "en": "The Applicant, being a police officer, was well aware of the seriousness and consequence of an offence of rape. Would he commit this serious offence and bring disgrace and ruin upon himself for momentary pleasure? If he had the slightest doubt that the victim’s response might be negative, he would not have acted on impulse and committed this serious offence.", "zh-HK": "申請人作為一名警察，深知強姦罪行的嚴重性及後果。他會否因一時之快而犯上嚴重罪行，令他身敗名裂。若他有絲毫懷疑受害人的反應是負面的，他也不會如此輕舉妄動，招至此嚴重罪行。" } }, { "doc_id": 23, "seg_id": 68, "translation": { "en": "The evidence put forward by Mr. Suen, including the evidence that was favourable to the Applicant or the evidence that was doubtful, was evidence that involved the victim. As a matter of fact, Tong J did remind the jury that when the defence was cross-examining the victim, it had challenged the content of her evidence in the witness box, and that there was discrepancy between such evidence and the statements she had earlier given to the police. He also reminded the jury that the defence argued that the victim had committed criminal offences involving dishonesty on two previous occasions, and that she was not a naïve young girl who had not seen much of the world. Tong J reminded the jury in particular of the seven lies that the defence alleged the victim had made. He even reminded the jury of the defence’s submission as follows:", "zh-HK": "孫大律師所提出對申請人有利的證據或者控罪有疑點的證據，都是涉及受害人的證供。其實湯法官已經提醒陪審團，辯方在盤問受害人時，已經質疑她在證人台上證供的內容，及這些內容與她早前給予警方口供內容有差異。他亦提醒陪審團，辯方所稱受害人有兩次干犯涉及不誠實意圖的刑事案件，及她並非一個沒有見過世面的無知少女。湯法官特別提醒陪審團辯方所指受害人所說的七個重要謊言，他更提醒陪審團辯方以下的陳詞：" } }, { "doc_id": 23, "seg_id": 69, "translation": { "en": "“… The defence also says that the underlying reasons of the (victim’s) lies were that she wanted to hide the fact that she indeed consented to the sexual intercourse. Apart from her lies outlined above, the (victim’s) behaviours also showed that she in fact consented to the sexual intercourse. For example, she had opportunity to escape but she didn’t, she could have cried out aloud but she didn’t, she could have attacked the defendant but she didn’t. The defence submitted that even if the (victim) is rather short and petite, she could still ‘rip and scratch’ the defendant. Common sense tells us that if the (victim) refused to co-operate, it would not be so easy for the defendant to go in and it would be even more difficult for him to change his positions three times. The defence submits that the (victim) in fact consented to the sexual intercourse. She simply changed her mind afterwards. She felt sorry for what she had done to her boyfriend and was regretful. And as the defendant refused to pay her, she went to report the matter to the police under her friends’ instigation. The defence submits that as far as this incident is concerned, the defendant’s version is the truth.”", "zh-HK": "「…辯方仲有講話，（受害人）講大話嘅背後，原因明顯係想遮掩佢其實係同意性交嘅呢個事實，除咗上述列出佢所講嘅大話之外，（受害人）嘅行為其實都顯示佢係同意性交嘅。例如係佢有機會走，但係冇走、可以大聲叫，但係佢冇大聲叫、可以襲擊被告，但係佢冇咁樣做。辯方話，當然佢嘅身材比較矮細，但係（受害人）都可以去『撕抓』被告人。而照常理嚟講，如果（受害人）係唔肯合作嘅話，被告係唔可以咁容易進入嘅，更加難以三次改變姿勢。辯方指出，其實（受害人）係同意性交嘅，只係事後變卦，覺得對唔住佢男朋友，所以後悔，被告又唔畀錢，所以佢先喺朋友嘅慫恿之下去報警投訴。辯方指出話，喺呢一件事情上，被告先至係講咗真話。」" } }, { "doc_id": 23, "seg_id": 70, "translation": { "en": "‘You have to bear in mind that the defence emphasizes that you should see the facts of the present case from another perspective, namely what had not happened or occurred in the present case. The defence asks you to thoroughly consider the lack of superficial injuries on the (victim) as well as on the defendant. Her clothes were not torn. She did not cry out aloud during the course and did not try to escape either. She did not have strong and lasting feelings of disturbance. Didn’t that show that she had in fact consented to the sexual intercourse? You should consider this carefully. Members of the jury, of course when I give such comments, I don’t mean to interfere your decision or verdict. The verdict is a matter entirely for you. I’m only suggesting one more perspective from which you may analyse the facts of the case.’", "zh-HK": "「大家要記得，辯方向大家強調過另一個角度去睇本案嘅事情嘅，就係本案中冇發生、冇出現嘅一啲情況。辯方要求大家去詳加考慮嘅，就係話（受害人）冇表面傷痕，被告都冇表面傷痕，（受害人）衣服冇破損，佢喺過程之中冇大叫，佢喺過程之中冇逃跑，佢亦都冇強烈同埋延續嘅不安情緒。呢啲係唔係就表示佢其實係同意性交呢？大家亦都要小心考慮喇。各位陪審員，當然，我提出呢啲嘅評語，唔係話想影響你哋應該如何去作決定，去作裁決，呢個係你哋嘅決定，我只不過係提出多一啲嘅角度，去畀大家去分析案情嘅啫。」" } }, { "doc_id": 23, "seg_id": 71, "translation": { "en": "We are of the view that Tong J had given fair directions to the jury regarding the defence’s case, especially the parts that were favourable to the Applicant. We only need to give comments on two points of Mr. Suen’s submission. Firstly, the suggestion that the Applicant changed his position during the intercourse. The victim agreed that that did happen and that she had a chance to get up and leave. However the victim said that when she tried to get up and leave, she was pulled by the Applicant who stopped her from leaving. Therefore we do not think that any doubt arises from this part of the evidence. Moreover, in relation to the text-messages sent by the victim, the jury could read the content of the messages in the agreed photographs tendered by the prosecution and the defence. The victim also said that she drew an emotion sign to show her dislike in one of the messages. Such evidence was before the jury for their consideration.", "zh-HK": "本庭認為，湯法官已經公平地將辯方的案情，特別是有利申請人之處，向陪審團作出指引。本庭只需要就孫大律師陳詞的兩點作出評論。第一，有關申請人在進行性行為時改變姿勢的說法。受害人同意這個情形確實出現，而她當時是有機會起身離開的。但受害人說當她嘗試起身離開時卻被申請人拉著，阻止離開，故此本庭不認為這方面存有疑點。另外，有關受害人發出的短訊。陪審團在控辯雙方同意提交的相片上可以看到有關短訊的內容。受害人亦說，在其中一個短訊，她畫了一個表示不滿的表情符號。這些證據已在陪審團席前披露，這亦是可供他們考慮的證據。" } }, { "doc_id": 23, "seg_id": 72, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 23, "seg_id": 73, "translation": { "en": "I am of the view that the jury directions delivered by Tong J were fair and just. Having heard all the evidence of the case, the members of the jury reached their verdict on the facts. We do not think that the verdict is in any way unreliable or unsafe. The application is therefore dismissed.", "zh-HK": "本席認為湯法官是對陪審團作出一個公正持平的指引。最終陪審團在聆聽所有證供後，作出一個事實上的裁決。本庭不認為有關的裁決有任何不穩妥或不安全之處。故此本庭駁回申請。" } }, { "doc_id": 23, "seg_id": 74, "translation": { "en": "：\t由律政司高級助理刑事檢控專員譚耀豪及高級檢控官程慧明代表。\tMr. Suen Kam Hee, instructed by Messrs. Samuel Ho & Co., for the Applicant.", "zh-HK": "答辯人 " } }, { "doc_id": 23, "seg_id": 75, "translation": { "en": ": \t由何廣榮律師事務所轉聘孫錦熹大律師代表。\tMr. William Tam, Senior Assistant Director of Public Prosecutions, and Ms Jasmine Ching, Senior Public Prosecutor, of the Department of Justice, for the Respondent.", "zh-HK": "申請人" } }, { "doc_id": 24, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the reasons of judgment of the Court):", "zh-HK": "高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 24, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 24, "seg_id": 3, "translation": { "en": "The two appellants (Cheng Xiangrong, Zhou Lingyun) were sentenced to 3 years’ imprisonment after they pleaded guilty to one charge of attempted theft before HH Judge WK Kwok (“the trial judge”) in the District Court. The trial judge adopted 4½ years as the starting point. As the appellants pleaded guilty, the sentence was reduced by one third to 3 years.", "zh-HK": "兩名上訴人（程香榮、周凌雲）在區域法院法官郭偉健（原審法官）席前承認一項企圖盜竊罪後，被判入獄3年。原審法官以4年半為量刑基準，並因上訴人認罪而將刑期扣減三分一至3年。" } }, { "doc_id": 24, "seg_id": 4, "translation": { "en": "Aggrieved with the sentence, the appellants applied for leave to appeal against sentence. On 8 June 2016, a single Justice of Appeal granted leave for their applications. We are now dealing with their appeals against sentence.", "zh-HK": "上訴人不服判刑，曾提出上訴許可申請，要求獲准就判刑上訴。2016年6月8日，上訴法庭單一法官批准她們的申請。本庭現要正式處理她們的減刑上訴。" } }, { "doc_id": 24, "seg_id": 5, "translation": { "en": "After the hearing, we allowed the two appellants’ appeals and reduced their sentences from 3 years to 32 months. The following are the reasons for judgment of the Court.", "zh-HK": "經聆訊後，本庭裁定兩名上訴人的上訴得直，並將她們的刑期由3年減至32個月。以下是本庭的判案理由。" } }, { "doc_id": 24, "seg_id": 6, "translation": { "en": "Facts of the case", "zh-HK": "案情" } }, { "doc_id": 24, "seg_id": 7, "translation": { "en": "The crime took place at the Hong Kong Convention and Exhibition Centre (HKCEC) where the Hong Kong Jewellery and Gem Fair was being held at the time.", "zh-HK": "案發現場是香港會議展覽中心（會展），案發時，正舉行香港珠寶首飾展覽會。" } }, { "doc_id": 24, "seg_id": 8, "translation": { "en": "The two appellants registered as trade visitors with passports and business cards, thereby obtaining admission badges for the fair at the HKCEC. When the two appellants were visiting a booth, they asked the staff to show them some diamonds. While inspecting a 3.02 carat diamond valued at US$130,000, Cheng Xiangrong used a price list to obstruct the view of the staff whereas Zhou Lingyun tried to substitute a fake diamond for the said diamond worth US$130,000.", "zh-HK": "兩名上訴人以護照及名片登記為貿易訪客，並因而取得入場證進入會展參觀展覽。兩名上訴人在參觀一展覽亭時向職員表示要看一些鑽石。在檢查一顆3.02卡，價值13萬美元的鑽石時，程香榮以價錢單阻擋職員的視線，而周凌雲則企圖用一顆假鑽石換掉該顆價值13萬美元的鑽石。" } }, { "doc_id": 24, "seg_id": 9, "translation": { "en": "When the crime of the two appellants was uncovered by the staff, Zhou Lingyun snatched back the fake diamond and put the said US$130,000 worth diamond back on the table. Nevertheless, the crime was exposed and the police were involved. After a report was made, the police arrived at the scene and arrested the two appellants. The police found two fake diamonds on the chair between the two appellants and on the floor behind Cheng Xiangrong. The police searched the two appellants and found on Cheng Xiangrong an admission badge registered in the name of “Ng Tiu Chen” (transliteration) and on Zhou Lingyun an admission badge registered in the name of “Wong Lai” (transliteration). Both Ng Tiu Chen and Wong Lai are mainland residents. After they obtained the admission badges by dishonest means, they handed them over to others to use in return for RMB 600.", "zh-HK": "職員發現兩名上訴人的罪行後，周凌雲搶回假鑽石及將該顆價值13萬美元的鑽石放回枱上，但事件仍曝光，導致警員介入。警員接報後抵達現場，拘捕兩名上訴人。警員在兩名上訴人之間的一張椅子及程香榮身後的地上發現兩顆假鑽石。警員搜查兩名上訴人，並在程香榮身上搜出一張以“吳調珍”名字登記的入場證及在周凌雲身上搜出一張以“王麗”名字登記的入場證。王麗和吳調珍都是國內居民，她們是以不誠實手法取得有關入場證後，交了給他人使用，以取得600元人民幣報酬。" } }, { "doc_id": 24, "seg_id": 10, "translation": { "en": "The results of a police investigation showed that the two appellants came to Hong Kong at around 3:30 pm on 24 June 2015, namely one day before the crime took place.", "zh-HK": "警方調查結果顯示兩名上訴人是在2015年6月24日下午約3時半，即犯案前一天進入香港。" } }, { "doc_id": 24, "seg_id": 11, "translation": { "en": "Sentence", "zh-HK": "判刑" } }, { "doc_id": 24, "seg_id": 12, "translation": { "en": "This is a crime of extreme gravity. The two appellants came together to Hong Kong to commit a crime in which they targeted a large-scale jewellery show booth in an attempt to steal a diamond valued at US$130,000.", "zh-HK": "本案是極為嚴重的罪行。兩名上訴人一起來港犯案，針對大規模珠寶展覽會場的攤位，並企圖盜取價值13萬美元的鑽石。" } }, { "doc_id": 24, "seg_id": 13, "translation": { "en": "Apart from the value of the diamond involved and the modus operandi, the present case is serious in that the appellants, acting in concert, came specifically to Hong Kong to commit a crime which is organised and pre-planned.", "zh-HK": "除了涉案鑽石的價值及犯案手法外，本案嚴重之處是兩名上訴人故意來港共同犯案。而她們的罪行亦是有組織和有計劃的。" } }, { "doc_id": 24, "seg_id": 14, "translation": { "en": "The crime the appellants committed is not only serious but also prevalent, so that a heavy sentence is required to have a deterrent effect. However, it is necessary for the Court to consider the appropriateness of their sentences.", "zh-HK": "上訴人的罪行不但嚴重，更越趨普遍，必須嚴懲，以收阻嚇作用。但法庭仍需考慮她們的判刑是否恰當。" } }, { "doc_id": 24, "seg_id": 15, "translation": { "en": "We have dealt with sentences of similar cases before including the one referred to by the trial judge HKSAR v Tu Xuzhi DCCC1102/2013. We are of the view that the sentence faced by the two appellants is excessive in comparison with other similar cases.", "zh-HK": "本庭有審議過同類案件的判刑，包括原審法官援引的HKSAR v Tu Xuzhi DCCC1102/2013。本庭認為兩名上訴人面對的判刑較同類案件的判刑為重。" } }, { "doc_id": 24, "seg_id": 16, "translation": { "en": "In HKSAR v Padilla Gerardo Gonzaga & Others CACC275/2011, five visitors coming from the Philippines stole a diamond worth about HK$250,000 when they were attending a jewellery show at the HKCEC. The Court of Appeal considered the appropriate starting point was 3 years’ imprisonment.", "zh-HK": "在HKSAR v Padilla Gerardo Gonzaga & Others CACC275/2011案，五名來自菲律賓的訪客在會展參觀珠寶展覽時，成功盜取了一顆價值約25萬港元的鑽石，上訴法庭認為適當的量刑基準為3年監禁。" } }, { "doc_id": 24, "seg_id": 17, "translation": { "en": "In HKSAR v Tsogbadrakh Otgon CACC393/2013, 5 Mongolian visitors came to Hong Kong to commit a crime. They stole diamonds worth about US$20,000 when they were attending a jewellery show. The Court of Appeal confirmed a starting point of 4 years.", "zh-HK": "在HKSAR v Tsogbadrakh Otgon（CACC393/2013）案，五名來自蒙古的訪客來港犯案。他們在參觀珠寶展覽時，成功盜取了價值約20,000美元的鑽石。上訴法庭確認了4年的量刑基準。" } }, { "doc_id": 24, "seg_id": 18, "translation": { "en": "In many other similar theft cases, a number of District Court Judges adopted a starting point of about 3 years 6 months to 4 years (see HKSAR v Yang Hao DCCC837/2015, HKSAR v Lau Siu Ping (transliteration) DCCC965/2014, HKSAR v Chau Man Hei (transliteration) DCCC631/2012, HKSAR v Yeung Man Hung (transliteration) and another DCCC955/2014).", "zh-HK": "在其他多宗同類盜竊案件，區域法院多名法官採納的量刑基準約為3年6個月至4年（見HKSAR v Yang Hao DCCC837/2015、香港特別行政區訴劉小平 DCCC965/2014、香港特別行政區訴周萬喜 DCCC631/2012、香港特別行政區訴陽文紅及另一人 DCCC955/2014等案）。" } }, { "doc_id": 24, "seg_id": 19, "translation": { "en": "In HKSAR v Tang Guozhen and Liu Guiluan DCCC364/2015, both defendants were mainlanders who came to Hong Kong together to attend a jewellery show at the HKCEC. They brought along a fake diamond in an attempt to substitute it for a genuine one worth about HK$980,000 in order to steal the same.", "zh-HK": "在香港特別行政區訴唐國珍及劉歸鑾 DCCC364/2015案，兩名被告人都是國內人士，她們一起來港前往會展參觀珠寶展覽時，帶同假鑽石，並企圖以偷龍轉鳳的手法，盜取價值約98萬港元的鑽石。" } }, { "doc_id": 24, "seg_id": 20, "translation": { "en": "The trial judge considered a starting point of 4 years was not excessive. However, taking into account the stolen diamond was recovered and the victim did not suffer any loss, the two defendants were sentenced to 3½ years’ imprisonment.", "zh-HK": "主審法官認為4年的量刑基準並不為過，但考慮到涉案鑽石失而復得，而受害人最終沒有損失，故判處兩名被告人入獄3年半。" } }, { "doc_id": 24, "seg_id": 21, "translation": { "en": "In Yeung Man Hung, the two defendants brought along three fake diamonds and attempted to substitute one for a 3.04 carat diamond valued at US$176,000 at a jewellery show. The trial judge adopted 3 years and 9 months as the starting point. However, as the case did not involve any cross-border criminal activities and the victim did not suffer any loss, the starting point was adjusted to 3 years and 6 months.", "zh-HK": "在陽文紅案，兩名被告人攜帶三顆假鑽石，並在參觀珠寶展覽時企圖以假鑽石盜取一顆3.04卡，價值176,000美元的鑽石。原審法官以3年9個月作為量刑基準，但以案件不涉及跨境犯案及事主沒有蒙受損失，而將量刑基準定為3年6個月。" } }, { "doc_id": 24, "seg_id": 22, "translation": { "en": "There are striking similarities in the facts between the present case and the above-mentioned Tang Guozhen and Liu Guiluan and Yeung Man Hung. Both cases involved two mainlanders coming to Hong Kong to commit a crime. They also planned to steal a diamond in the value of about one million Hong Kong dollars at a jewellery show. As their criminal activities were uncovered, the victim had suffered no loss. However, we should point out that in Yeung Man Hung, the trial judge, in accordance with the prosecution’s stance, had ruled that the case did not involve any cross-border criminal activities.", "zh-HK": "本案案情和上述唐國珍及劉歸鑾和陽文紅案極為相似。兩宗案件都涉及兩名國內人士來港犯案。她們都是在參觀珠寶展覽時，有計劃地盜取價值約100萬港元的鑽石。但因為她們的犯罪行為被偵破，故受害人沒有蒙受損失。但本庭應指出在陽文紅案，主審法官根據控方立場，裁定案件不涉及跨境犯案。" } }, { "doc_id": 24, "seg_id": 23, "translation": { "en": "The trial judge adopted 4½ years as the starting point which was higher in comparison with the above-mentioned Tang Guozhen and Liu Guiluan and Yeung Man Hung.", "zh-HK": "原審法官採納的4年半量刑基準較上述唐國珍及劉歸鑾和陽文紅案所採納的量刑基準為高。" } }, { "doc_id": 24, "seg_id": 24, "translation": { "en": "The trial judge took the view that the crime committed by the two appellants was more serious in comparison with Gonzaga and Otgon. However, despite the diamond the two appellants attempted to steal having a higher value, we do not agree the crime committed by the two appellants is more serious in comparison with Gonzaga and Otgon.", "zh-HK": "原審法官認為兩名上訴人的罪行較Gonzaga和Otgon案為嚴重。但除了兩名上訴人企圖盜取的鑽石的價值較高外，本庭不同意兩名上訴人的罪行較Gonzaga和Otgon案嚴重。" } }, { "doc_id": 24, "seg_id": 25, "translation": { "en": "All three cases involved visitors coming deliberately to Hong Kong to steal valuable property at jewellery shows. Their crimes were certainly pre-planned and also involved elements such as cross-border criminal activities and several persons acting in concert.", "zh-HK": "三宗案件都涉及訪客故意來港在珠寶展覽盜取貴重財物，他們的罪行必然是有計劃，亦同樣涉及跨境犯罪和多人同謀犯罪等元素。" } }, { "doc_id": 24, "seg_id": 26, "translation": { "en": "The trial judge stressed that the two appellants obtained two admission badges of the fair before they came to Hong Kong, which showed their intent to steal and there were accomplices helping to get the admission badges for them.", "zh-HK": "原審法官強調兩名上訴人來港前已取得兩張展覽入場證，顯示她們是有意圖盜竊，亦顯示有同黨替她們取得入場證。" } }, { "doc_id": 24, "seg_id": 27, "translation": { "en": "However, in Gonzaga and Otgon, both cases involved visitors coming deliberately to Hong Kong to commit offences which were pre-planned involving elements of cross-border criminal activities. Moreover, in Gonzaga and Otgon, there were five defendants acting in concert and the number of criminals involved was more in comparison with the present case.", "zh-HK": "但Gonzaga 和Otgon案亦是涉及訪客故意來港犯案，亦是有計劃及涉及跨境犯案等因素，而Gonzaga 和Otgon案更涉及五名被告人一同犯案，竊匪數目較本案為多。" } }, { "doc_id": 24, "seg_id": 28, "translation": { "en": "Furthermore, as the stolen items in those two cases were not recovered, the victims suffered substantial economic losses, whereas the victim in the present case did not suffer any loss.", "zh-HK": "再者，該兩宗案件，涉案的財物未能追回，故受害人蒙受極大經濟損失。在本案，受害人沒有任何損失。" } }, { "doc_id": 24, "seg_id": 29, "translation": { "en": "Mr Leung Man Liang Matthew, Senior Public Prosecutor for the respondent, stressed that the diamond involved was worth US$130,000. He agreed that the starting point of 4½ years adopted by the trial judge was on the high side, but it was not manifestly excessive and therefore we should not interfere.", "zh-HK": "代表答辯人的高級檢控官梁文亮強調，涉案的鑽石價值13萬美元。雖然他同意原審法官採納的4年半量刑基準屬高，但認為該量刑基準並非明顯過高，故本庭不應干預。" } }, { "doc_id": 24, "seg_id": 30, "translation": { "en": "The value of the diamond involved is certainly a factor to be considered when it comes to sentencing. If a defendant steals specifically diamonds of considerable value and asks the staff to show him diamonds of very high value with intent to steal the same, it is certainly an aggravating factor. However, on many occasions, in other similar cases, the value of the diamonds the defendants intended to steal were only picked incidentally or randomly. In the present case, there is no sufficient evidence to suggest that the two appellants were targeting those diamonds of extremely high value. The facts of the case showed that they just randomly asked the staff to show them three diamonds with intent to steal one of them when inspecting the same.", "zh-HK": "涉案鑽石的價值當然是判刑時要考慮的因素之一。如被告人特意盜取價值甚高的鑽石，並要求職員向他展示某些價值特高的鑽石，目的是盜取該鑽石，這必然是加重罪責因素。但很多時，在同類案件，被告人企圖盜取的鑽石的價值只是隨機或偶然的。在本案沒有足夠證據顯示兩名上訴人是故意針對價值極高的鑽石。案情顯示她們只是隨機要求職員向她們展示三顆鑽石，並在檢視過程中企圖盜取其中一顆。" } }, { "doc_id": 24, "seg_id": 31, "translation": { "en": "The trial judge pointed out in Tu Xuzhi, the criminal also stole a diamond valued at US$124,000 at a jewellery show, and the court adopted 4½ years as a starting point.", "zh-HK": "原審法官指出在Tu Xuzhi案，犯案人亦是在珠寶展覽會偷取了一顆價值124,000美元的鑽石，而法庭採納的量刑基準為4年半。" } }, { "doc_id": 24, "seg_id": 32, "translation": { "en": "Even though the above starting point of 4½ years was appropriate, the trial judge had overlooked the fact that the US$124,000 worth diamond was not recovered.", "zh-HK": "即使上述4年半的量刑基準恰當，但原審法官忽視 了在該案，涉案價值124,000美元的鑽石未能追回。" } }, { "doc_id": 24, "seg_id": 33, "translation": { "en": "Although the sentence for attempted theft may not necessarily be lighter than that of a completed offence of theft, for offences of stealing, whether there is economic loss and the extent of economic loss suffered by the victims are certainly factors to be considered at the time of sentencing. In the above case of Yeung Man Hung, the trial judge also took the view that the victim suffered no loss of property was a mitigating factor favourable to the defendant.", "zh-HK": "雖然企圖盜竊罪行的判刑不一定較已完成盜竊罪行的判刑為輕，但在任何盜竊案件，受害人是否有經濟損失及經濟損失的幅度都必然是判刑時需考慮的因素。在上述陽文紅案，主審法官亦認定事主沒有財物損失一事是對被告人有利的求情因素。" } }, { "doc_id": 24, "seg_id": 34, "translation": { "en": "In the present case, we should not overlook the fact that there is no evidence to suggest the two appellants were targeting a diamond of considerable value, nor can we overlook the fact that the appellants’ attempt to steal the diamond was not successful, thereby causing no economic loss to the victim.", "zh-HK": "在本案，法庭不應忽視沒有證據顯示兩名上訴人是故意以價值甚高的鑽石為她們盜竊罪行的標的物，亦不能忽視兩名上訴人未能成功盜取到涉案鑽石，故受害人沒有蒙受任何經濟損失。" } }, { "doc_id": 24, "seg_id": 35, "translation": { "en": "Having regard to the overall circumstances of the case, we are of the view that the starting point of 4½ years adopted by the trial judge was manifestly excessive. We consider a starting point of 4 years sufficiently reflects the gravity of the offence committed by the two appellants. In fact, in respect of theft, if the amount involved is around one to three million dollars, even if a breach of trust is involved, the starting point is only 3 to 4 years’ imprisonment (see HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776). The 4 years starting point adopted by this Court has already reflected the gravity of this particularly serious offence of stealing jewels at a jewellery show.", "zh-HK": "本庭認為以整體案情而言，原審法官採納的4年半量刑基準屬明顯過高。本庭認為4年的量刑基準已足以反映兩名上訴人的罪責。事實上，以盜竊罪行而言，如案件涉及款項是100萬元至300萬元，即使有違反誠信的情況，量刑基準亦只是3-4年監禁（見HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776案）。本庭採納的4年量刑基準，已反映在珠寶展覽會盜取珠寶首飾這類罪行的特殊嚴重性。" } }, { "doc_id": 24, "seg_id": 36, "translation": { "en": "In our view, for similar cases, a starting point of four years sufficiently reflects the gravity of this type of offences unless there are special aggravating factors, such as the defendant targets some particularly or extremely valuable property; the victim suffers substantial economic loss; the theft involves very large-scale criminal activities with highly elaborate planning. For the convenience of the sentencing judge, the prosecution should, according to the circumstances, submit as much evidence related to the above factors as possible for the court’s consideration.", "zh-HK": "本庭認為，在同類案件，除非有特殊的加重罪責因素，例如被告人特意盜取某些特殊或價值極高的財物；受害人蒙受極大的經濟損失；盜竊行動是極大規模或涉及極為周詳的計劃等，否則四年的量刑基準已足以反映該類罪行的嚴重性。為方便法官量刑，控方應根據情況盡量提供和上述因素有關證據予法庭考慮。" } }, { "doc_id": 24, "seg_id": 37, "translation": { "en": "The two appellants pleaded guilty to the charge. Therefore, they are entitled to a discount of one third. The proper sentence for them should be 32 months. Accordingly, we allow their appeal and reduce their sentences from 3 years to 32 months.", "zh-HK": "兩名上訴人承認控罪，故理應取得三分一的刑期扣減。她們的恰當判刑應為32個月。因此，本庭裁定兩名上訴人上訴得直，並將她們被判的刑期由3年減為32個月。" } }, { "doc_id": 24, "seg_id": 38, "translation": { "en": "由律政司高級檢控官梁文亮代表。\tThe 1st Appellant, acting in person, present", "zh-HK": "答辯人：" } }, { "doc_id": 24, "seg_id": 39, "translation": { "en": "無律師代表，親自應訊。\tThe 2nd Appellant, acting in person, present", "zh-HK": "第一上訴人：" } }, { "doc_id": 24, "seg_id": 40, "translation": { "en": "無律師代表，親自應訊。\tLeung Man Liang Matthew, Senior Public Prosecutor of the Department of Justice, for the Respondent", "zh-HK": "第二上訴人：" } }, { "doc_id": 25, "seg_id": 1, "translation": { "en": "Hon Chu JA (giving the reasons for judgment of the Court):", "zh-HK": "由上訴法庭法官朱芬齡頒發上訴法庭判案理由書：" } }, { "doc_id": 25, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 25, "seg_id": 3, "translation": { "en": "The appellant was charged with three counts of “dealing with property known or believed to represent proceeds of an indictable offence” (commonly known as “money laundering”), contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455. The appellant pleaded not guilty to the charges. On 31 December 2010, the appellant was convicted by District Judge Anthea Pang on Charges 1 and 2 and acquitted of Charge 3. Having considered the background report, on 21 January 2011, Judge Pang sentenced the appellant to 2 years and 9 months’ imprisonment on each of Charges 1 and 2, to be served concurrently.", "zh-HK": "上訴人在區域法院被控三項「處理已知道或相信為代表從可公訴罪行的得益的財產」（俗稱「洗黑錢」）的罪行，違反《有組織及嚴重罪行條例》（香港法例第455章）第25(1)及(3)條。上訴人否認控罪。2010年12月31日，區域法院法官彭寶琴裁定上訴人第一項及第二項控罪罪名成立，第三項控罪則罪名不成立。在考慮其背景報告後，彭法官在2011年1月21日判處上訴人就第一項及第二項罪名各接受2年9個月的監禁，同期執行。" } }, { "doc_id": 25, "seg_id": 4, "translation": { "en": "The appellant applied for leave to appeal conviction and sentence. On 8 September 2011, Yeung VP dismissed her application for leave in respect of conviction but granted her leave to appeal sentence.", "zh-HK": "上訴人就定罪和刑期提出上訴許可申請。2011年9 月8日，上訴法庭副庭長楊振權駁回上訴人就定罪的上訴許可申請，但批准她就判刑提出上訴。" } }, { "doc_id": 25, "seg_id": 5, "translation": { "en": "On 1 February 2012, we allowed the appellant’s appeal against sentence and reduced the term of sentence on both charges to 21 months which were to be served concurrently. We now provide reasons for our judgment.", "zh-HK": "本庭在2012年2月1日批准上訴人的刑期上訴，把兩項控罪的刑期減為21個月，同時執行。本庭現就判決理由給予說明。" } }, { "doc_id": 25, "seg_id": 6, "translation": { "en": "Facts of the case", "zh-HK": "本案的案情" } }, { "doc_id": 25, "seg_id": 7, "translation": { "en": "In Charge 1, on which the appellant has been convicted, she was accused of having dealt with a total sum of $1,734,005 in her account with the Bank of China (“BOC account”) between 2 January and 17 May 2004. In Charge 2, on which the appellant has also been convicted, she was accused of having dealt with a total sum of $1,504,196.76 in her account with the Hongkong and Shanghai Banking Corporation (“HSBC account”) between 17 May and 25 January 2008.", "zh-HK": "上訴人被判罪成的第一項控罪指上訴人在2004年1月2日至5月17日，處理一筆在其中國銀行戶口（“中國銀行戶口”）內總數是港幣1,734,005元的款項。上訴人被判罪成的第二項控罪則指上訴人在2004年5月17日至2008年1月25日的期間，處理一筆在其滙豐銀行戶口（“滙豐銀行戶口”）內總數是港幣1,504,196.76元的款項。" } }, { "doc_id": 25, "seg_id": 8, "translation": { "en": "The appellant was the sole authorized signatory of the abovementioned two bank accounts. The facts agreed by both the prosecution and the defence revealed that between 2 January and 17 May 2004, the BOC account had deposits totalling HK$1,734,005 and withdrawals totalling HK$1,744,344. Four of the deposits, involving a total sum of HK$1,692,705, were made by transfer from Taiwan through several remittance agents, and after each of these deposits was made, the appellant withdrew the remittance in cash. On the other hand, between 17 May 2004 and 25 January 2008, the HSBC account had deposits totalling HK$1,504,196.76 and withdrawals totalling HK$1,504,147.40. Six of the deposits, involving a total sum of HK$709,296, were made by transfer from the Mainland through a remittance agent between 19 April and 9 May 2005. On 11 May 2005, a further sum of HK$383,663 was deposited into that account. After each of these deposits was made, the appellant withdrew the money in cash.", "zh-HK": "上訴人是上述兩個銀行戶口的唯一授權簽署人。控辯雙方同意的事實顯示，在2004年1月2日至5月17日的期間，中國銀行戶口共有港幣1,734,005元的存款和港幣1,744,344元的提款。其中有4筆合共港幣1,692,705元的款項從台灣經數個匯款代理轉賬存入。每次款項存入後，上訴人便以現金方式把匯款提取。另一方面，在2004年5月17 日至2008年1月25日的期間，滙豐銀行戶口共有港幣1,504,196.76元的存款及港幣1,504,147.40元的提款。其中有6筆合共港幣709,296元的款項，是從內地經由一名匯款代理在2005年4月19日至5月9日轉賬存入戶口。在2005 年5月11日，再有一筆港幣383,663元的款項存入該戶口。每次款項存入後，上訴人便以現金方式把款項提取。" } }, { "doc_id": 25, "seg_id": 9, "translation": { "en": "The appellant did not dispute that she had dealt with the money in the BOC account and the HSBC account, including making withdrawals, but she denied knowing or having reasonable grounds to believe that the money concerned came from the proceeds of an indictable offence.", "zh-HK": "上訴人不爭議她曾處理上述中國銀行和滙豐銀行戶口內的款項，包括提取款項。但上訴人否認知道或有合理理由相信有關的款項是來自可公訴罪行的得益。" } }, { "doc_id": 25, "seg_id": 10, "translation": { "en": "The appellant elected to give evidence. Her testimony revealed that she got married in 1995 and had a son, but she and her ex-husband were separated in 1997. After that she worked as a public relations hostess at a nightclub. She became acquainted with a customer Mr Chan and they subsequently became cohabitees. Mr Chan assumed responsibility for her and her son’s living expenses, and later the appellant also gave birth to two daughters for Mr Chan.", "zh-HK": "上訴人選擇作供自辯。上訴人的證供顯示她在1995年結婚，育有一子，但在1997年與前夫分居。她之後在夜總會出任公關，期間結織一名客人陳先生，並發展成為同居伴侶。陳先生同時提供她和兒子的生活費用。後來上訴人更為陳先生誕下兩名女兒。" } }, { "doc_id": 25, "seg_id": 11, "translation": { "en": "The appellant said that Mr Chan had been engaged in mobile phone business. In April 2004, Mr Chan requested to use her bank account to receive four remittances from Taiwan. Mr Chan had no bank account at that time because he had previously incurred business debts, as a result of which his accounts were frozen, and since then he had not opened any other bank account. Each time after a remittance had been deposited into the appellant’s BOC account, Mr Chan would accompany the appellant to withdraw the amount in cash. Sometimes Mr Chan paid for the appellant’s living expenses out of the withdrawn sum, but apart from that, all the money was taken away by Mr Chan.", "zh-HK": "上訴人指陳先生從事手提電話買賣的生意。在2004年4月間，陳先生要求借用她的銀行戶口，以收取4 筆從台灣來的匯款。陳先生當時沒有銀行戶口，原因是之前做生意曾經欠債，戶口遭凍結，所以沒有再開設戶口。在每筆匯款存入上訴人的中國銀行戶口後，陳先生便陪同上訴人去提取現金。陳先生有時會從中支付上訴人的生活費，除此之外，所有的款項都由陳先生取走。" } }, { "doc_id": 25, "seg_id": 12, "translation": { "en": "On 17 May 2004, the appellant withdrew all the money in the BOC account and had the HSBC account opened on the same day. She claimed that she had “lent” the HSBC account to Mr Chan upon his request, for the purpose of transferring money related to his Taiwan business to Hong Kong. Between 19 April and 9 May 2005, six sums of money were transferred to the HSBC account, and the appellant said that it was only upon her arrest that she came to know that those sums of money were in fact from Mainland China. She also said in her testimony that each time after money had been remitted to her account, Mr Chan accompanied her to the bank to withdraw the money.", "zh-HK": "上訴人在2004年5月17日從中國銀行的戶口提走所有存款。同日她開設了滙豐銀行戶口。上訴人指稱她同樣是應陳先生的要求，借出滙豐銀行的戶口，以供他在台灣做生意的款項轉賬到香港。在2005年4月19 日至5月9日期間轉賬到滙豐銀行的6筆款項，上訴人稱她是在被捕後才知道它們其實是來自中國內地。上訴人的證供也指每次款項匯到她的戶口後，陳先生都會陪同她到銀行提取。" } }, { "doc_id": 25, "seg_id": 13, "translation": { "en": "The appellant called Mr Chan as her witness. Mr Chan admitted that on 3 March 2009 he was convicted before the Court of First Instance on one count of trafficking in dangerous drug and was serving the sentence therefor, although he had already lodged an appeal against the conviction. Mr Chan said that he had been engaged in trading business, that the monies transferred to the appellant’s BOC account and HSBC account were loans relating to his mobile phone business in Taiwan, and that he did not know why there were six sums of remittance which came from Mainland China. Mr Chan also said that when he asked the appellant to let him use her accounts, he had told her the purpose thereof was to receive loans in respect of his Taiwan business.", "zh-HK": "上訴人傳召了陳先生作證人。陳先生承認在2009 年3月3日在高等法院原訟庭被裁定一項「販運危險藥物」罪罪名成立，正在服刑之中，但他已就該定罪提出上訴。陳先生稱他做貿易生意，而轉賬至上訴人的中國銀行和滙豐銀行戶口的款項都是他在台灣做電話生意的貸款，他並不知道為何有6筆匯款是來自中國內地。陳先生也稱他向上訴人借用戶口時，曾告訴她是用來收取他在台灣做生意的貸款。" } }, { "doc_id": 25, "seg_id": 14, "translation": { "en": "The trial judge ruled that neither the appellant nor Mr Chan was a veracious and reliable witness. The judge did not accept that the monies transferred to the appellant’s accounts were related to Mr Chan’s telephone business in Taiwan. She found that the appellant had reasonable grounds to believe that the monies referred to in Charges 1 and 2 represented the proceeds of an indictable offence. She convicted the appellant on both charges accordingly.", "zh-HK": "原審法官裁斷上訴人和陳先生都不是誠實可靠的證人。原審法官拒絕接納他們指轉賬到上訴人戶口的款項，是陳先生在台灣經營電話生意的款項的說法。原審法官認為上訴人具有合理理由相信第一項及第二項控罪所指的款項代表從可公訴罪行的得益的財產。她因此裁定該兩項控罪罪名成立。" } }, { "doc_id": 25, "seg_id": 15, "translation": { "en": "The trial judge’s reasons for sentence", "zh-HK": "原審法官的判刑理由" } }, { "doc_id": 25, "seg_id": 16, "translation": { "en": "In passing sentence, the trial judge noted that “money laundering” was a serious offence and referred to the sentencing considerations set out in the case of HKSAR v Hsu Yu Yi [2010] 5 HKLRD 536. The judge took into account the fact that the four remittances in Charge 1 spanned approximately half a month, that the six transfers from the Mainland out of the seven remittances in Charge 2 spanned the best part of a month, and that following the transfer of each remittance to the appellant’s account, she and Mr Chan went in person to the bank and withdrew the money in cash. In light of these facts, the judge considered 3 years’ imprisonment the appropriate starting point for each charge. Having regard to the appellant’s clear record and the need for her to take care of three children single-handedly, the judge reduced the term to 2 years 9 months. In the end, the appellant was sentenced to 33 months’ imprisonment on each of Charges 1 and 2, with the two sentences to be served concurrently.", "zh-HK": "原審法官在判刑時，考慮到「洗黑錢」是嚴重罪行，及參考了香港特別行政區訴許有益 [2010] 5 HKLRD 536案中列出的量刑因素。有鑑於第一項控罪的4筆匯款的涉案時間約半個月，而第二項控罪的7筆匯款，其中6筆由內地轉賬的涉案時間約為大半個月，以及每次匯款轉到上訴人戶口後，上訴人都與陳先生親自到銀行以現金方式提取款項，原審法官認為每項控罪適當的量刑基準是3年監禁。經考慮上訴人過往沒有刑事定罪記錄，及需要獨力照顧三名子女，原審法官將3年的量刑基準下調至2年9個月。她因此判處上訴人第一項和第二項控罪各33個月監禁，兩項刑期同期執行。" } }, { "doc_id": 25, "seg_id": 17, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 25, "seg_id": 18, "translation": { "en": "The appellant submitted that the sentence of 2 years 9 months’ imprisonment was manifestly excessive for the following reasons: (1) there was no evidence to show that she had obtained any benefit from dealing with the monies in question; (2) she had not dealt with the monies by means of complex schemes, and the offences were not meticulously planned; (3) she had cooperated with the police in their investigations and provided her personal financial documents; (4) she had agreed most of the facts at trial, which helped shorten the length of trial; and (5) she had been under tremendous stress throughout the period of more than 2 years from the commencement of police investigations in 2008 to her being convicted on 31 December 2010.", "zh-HK": "上訴人指2年9個月的刑期是明顯過重。她提出的理由包括：（1）沒有證據顯示她從處理涉案的款項中獲得利益；（2） 她沒有以複雜的程序去處理款項，亦並非經過精心策劃去犯案；（3）她在警方調查期間，與警方合作，提供了個人的財政文件；（4）在審訊時，她同意了大部分的案情，縮短了審訊的時間；及（5）自警方在2008年開始調查直至她在2010年12月31日被判罪名成立，期間長達2年多，令她備受困擾。" } }, { "doc_id": 25, "seg_id": 19, "translation": { "en": "The appellant relied on the following cases in support of her grounds of appeal:", "zh-HK": "上訴人引述了下列案件以支持她的上訴理由：" } }, { "doc_id": 25, "seg_id": 20, "translation": { "en": "(1)HKSAR v Lai Kam Yee Teresa [2010] 4 HKLRD 157;", "zh-HK": "（1）香港特別行政區訴賴錦儀 [2010] 4 HKLRD 157；" } }, { "doc_id": 25, "seg_id": 21, "translation": { "en": "(2)HKSAR v Cheung Po Lin, DCCC 585/2009;", "zh-HK": "（2）香港特別行政區訴張寶蓮DCCC 585/2009；" } }, { "doc_id": 25, "seg_id": 22, "translation": { "en": "(3)HKSAR v Li Wor Sang, DCCC 126 (sic)/2009; and", "zh-HK": "（3）香港特別行政區訴李和生DCCC 126/2009；及" } }, { "doc_id": 25, "seg_id": 23, "translation": { "en": "(4)HKSAR v Leung Mei Yu Rebecca, DCCC 365/2009。", "zh-HK": "（4）香港特別行政區訴梁美如DCCC 365/2009。" } }, { "doc_id": 25, "seg_id": 24, "translation": { "en": "The appellant submitted that Mr Chan was her two daughters’ father. When Charges 1 and 2 took place, her elder daughter was already born. In order to maintain her relationship with Mr Chan, the appellant acceded to his requests by “lending” him her accounts and assisting in withdrawing the monies. The appellant said that her case was similar to that of the applicant in HKSAR v Lai Kam Yee Teresa, in that it was only for the children’s benefit that she acceded to Mr Chan’s requests and dealt with the monies in question.", "zh-HK": "上訴人提出陳先生是她兩名女兒的父親，在第一項和第二項控罪發生時，她的大女兒已出生。她為了維繫與陳先生的關係，所以每次都順從他的要求，借出戶口和協助提取款項。上訴人認為她的情況與香港特別行政區訴賴錦儀案中的申請人的情況相若，都是為著子女的利益才聽從陳先生的要求處理涉案款項。" } }, { "doc_id": 25, "seg_id": 25, "translation": { "en": "Legal principles relating to sentencing", "zh-HK": "與量刑有關的法律原則" } }, { "doc_id": 25, "seg_id": 26, "translation": { "en": "We have made it clear in many decided cases that “money laundering” is a serious offence as those who take part in laundering the money not only assist in dealing with and retaining the proceeds of illegal activities and attempt to legitimize the proceeds of criminal activities, but in effect also indirectly encourage criminal activities. It is therefore necessary to deter “money laundering” offences: see HKSAR v Xu Xia Li & Anor [2004] 4 HKC 16; HKSAR v Javid Kamran, CACC 400/2004 (date of judgment: 12 April 2005) and Secretary for Justice v Wan Kwong Keung [2012] 1 HKLRD 197.", "zh-HK": "本庭在許多案件中都明確指出，「洗黑錢」是嚴重罪行，原因是參與清洗黑錢的人不但協助處理和保存非法活動的得益，並試圖使犯罪得益合法化，而且實際上也間接鼓勵罪犯進行非法活動，因此有必要阻嚇「洗黑錢」的罪行：參考HKSAR v Xu Xia Li & Anor [2004] 4 HKC 16；HKSAR v Javid Kamran，CACC 400/2004（判案書日期：2005年4 月12日）及律政司司長訴雲國強 [2012] 1 HKLRD 197。" } }, { "doc_id": 25, "seg_id": 27, "translation": { "en": "No sentencing guidelines have been laid down for the offence of “money laundering” because the circumstances of the offence vary from case to case. In general, the sentence should mainly reflect the amount of “black money” laundered and not the benefit obtained by the defendant or any other gain. In HKSAR v Hsu Yu Yi [2010] 5 HKLRD 536, the Court of Appeal set out the following sentencing considerations (see paragraph 9 of the judgment):", "zh-HK": "由於每宗案件會涉及不同的情況，法庭沒有對「洗黑錢」的罪行訂下量刑指引。一般而言，判刑應主要反映清洗「黑錢」的數額，而非被告人或其他的得益。在香港特別行政區訴許有益 [2010] 5 HKLRD 536案，上訴法庭指出下列各點是量刑的參考因素（見判案書第9段）：" } }, { "doc_id": 25, "seg_id": 28, "translation": { "en": "“(a)It is the amount of money involved that is a major consideration and not the amount of benefit received by a defendant in the transaction.", "zh-HK": "「(a)涉案的金額是重要的考慮因素，而非被告人本身在這次交易所獲得的利益。" } }, { "doc_id": 25, "seg_id": 29, "translation": { "en": "(b)The culpability of the offence lies in the assistance, support and encouragement offered to the commission of an indictable offence. So a defendant’s level of participation and the number of occasions on which he is involved in the ‘money laundering’ activities are relevant factors to be considered.", "zh-HK": "(b)控罪的罪責是協助、支持及鼓勵有關的公訴罪行，故此被告人的參與程度及涉及「洗黑錢」的次數是有關連的因素。" } }, { "doc_id": 25, "seg_id": 30, "translation": { "en": "(c)The offence of dealing with the proceeds from an indictable offence does not necessarily have any direct correlation with the indictable offence in question. However, if the relevant indictable offence can be identified, the court may take into account the sentence imposed on the indictable offence per se when determining the sentence of the dealing offence.", "zh-HK": "(c)處理公訴罪行得益的財產控罪與有關的公訴罪行不一定有直接關係，但若果有關的公訴罪行是可以確認的，那麼法庭是可以在處理控罪時考慮有關公訴罪行本身的刑期。" } }, { "doc_id": 25, "seg_id": 31, "translation": { "en": "(d)If the case has an international element involving activities carried out across different regions, the court may impose a more severe sentence. This is to protect Hong Kong’s reputation as an international finance and banking hub from being tarnished.", "zh-HK": "(d)若案件涉及國際跨境成分，法庭可採用較嚴峻的刑期，以免香港作為國際金融及銀行中心的形像受損。" } }, { "doc_id": 25, "seg_id": 32, "translation": { "en": "(e)The length of time the offence lasted.”", "zh-HK": "(e)涉案的時間。」" } }, { "doc_id": 25, "seg_id": 33, "translation": { "en": "In addition, if a defendant has committed an offence for the sake of maintaining the relationship with his/her close relatives or partner, or by reason of having been used by them, the court may consider exercising its discretion to give further discount to sentence: see HKSAR v Lai Kam Yee Teresa [2010] 4 HKLRD 157; HKSAR v Chiu Kit & Anor, CACC 210/2009 (date of judgment: 20 May 2010) and HKSAR v Leung Mei Yu Rebecca, DCCC 365/2009 (date of Reasons for Sentence: 20 May 2010).", "zh-HK": "此外，如果被告人干犯罪行是出於維繫與親人或伴侶的關係或是被他們利用，則法庭會考慮酌情給予額外的刑期扣減：見香港特別行政區訴賴錦儀 [2010] 4 HKLRD 157；HKSAR v Chiu Kit（趙潔）& Anor CACC 210/2009（判案書日期：2010年5月20日）及香港特別行政區訴梁美如DCCC 365/2009（判刑理由書日期：2010年5月20日）。" } }, { "doc_id": 25, "seg_id": 34, "translation": { "en": "Reasons for decision of this Court", "zh-HK": "本庭判決理由" } }, { "doc_id": 25, "seg_id": 35, "translation": { "en": "The appellant is now aged 36 and divorced. From her relationships with her ex-husband and Mr Chan, she has three children who are aged 15, 12 and 5 respectively and all taken care of by her. Prior to the present case, she had a clear record. The appellant herself, her parents and her siblings have written letters seeking mitigation of the appellant’s sentence.", "zh-HK": "上訴人現時36歲，是一名離婚婦人，與前夫及陳先生共育有三名子女，年齡分別是15、12和5歲，都由上訴人照顧。在本案之前，她沒有干犯刑事罪行的記錄。她本人及其父母和姊弟們都撰寫了求情信件，希望減輕刑期。" } }, { "doc_id": 25, "seg_id": 36, "translation": { "en": "The total amount of monies involved in Charges 1 and 2 was approximately HK$2.7 million. The two offences spanned half a month and the best part of a month respectively, neither of which was particularly long. The appellant went to the bank and withdrew the remittances in cash shortly after they had been transferred into her two bank accounts, and the monies were passed on to Mr Chan. There was no evidence to indicate the indictable offence(s) from which the monies in question were derived. Nor did the evidence show that the appellant had taken part in any offence relating to “black money”.", "zh-HK": "本案第一項及第二項控罪所涉的款項合共約270 萬港元。兩項控罪發生的時間不算長，分別是半個月和大半個月。上訴人在控罪涉及的匯款轉賬到她的兩個銀行戶口後不久，便到銀行以現金方式把款項提走，轉交陳先生。在案中沒有證據顯示涉案的款項是從甚麼公訴罪行衍生出來。案中的證據亦不顯示上訴人有參予和「黑錢」有關的罪行。" } }, { "doc_id": 25, "seg_id": 37, "translation": { "en": "In light of the above circumstances, without more, the starting point of 3 years adopted by the trial judge for each charge could not be regarded as manifestly excessive. However, there were special circumstances which distinguish the present case from other cases of the same type.", "zh-HK": "若單純以上述的情況而言，原審法官就每項控罪所採納的三年量刑起點不可以說是明顯過重。然而本案存在與其他同類案件不同的特別因素。" } }, { "doc_id": 25, "seg_id": 38, "translation": { "en": "The appellant testified at trial that she and Mr Chan were intimate cohabitees at the material time and had given birth to two daughters. It was only upon Mr Chan’s requests that she allowed him to use her bank accounts, and it was not for obtaining benefit that she assisted in dealing with the monies in question. After being convicted, the appellant reiterated this point when she was interviewed by the probation officer and pointed out that she had assisted Mr Chan because he was her partner and her daughters’ father.", "zh-HK": "上訴人在審訊作供時指出，她當時與陳先生是關係親蜜的同居伴侶，兩人先後育有兩名女兒。她是應陳先生的要求借銀行戶口給他使用，而非為了圖利而協助處理涉案的款項。在定罪後，上訴人會見感化官時亦重申這個說法，並指出她協助陳先生是出於他是她的伴侶和女兒的父親。" } }, { "doc_id": 25, "seg_id": 39, "translation": { "en": "In our view, it could be seen from the evidence that Mr Chan and the appellant were cohabitees and their intimate relationship had lasted quite a long time. In addition, on the appellant’s description, Mr Chan had all along taken care of her, their two daughters as well as her son who was born of her previous marriage. By the time she dealt with the monies in question, she and Mr Chan had already had a daughter. In view of the above circumstances, there is a credible ring about the appellant’s statements that she was merely acceding to Mr Chan’s requests when she allowed him to use her personal bank accounts and assisted him in making the withdrawals in question, and that she did so for the sake of their relationship and with a view to maintaining such relationship so that her children would be taken care of.", "zh-HK": "本庭認為從本案的證據可見陳先生是上訴人的親蜜同居伴侶，而且他們的親蜜關係亦維持了頗長的時間。此外，按上訴人所述，陳先生一直以來都照顧她和兩名女兒以及她與前夫所生的兒子的生活。而當上訴人處理本案所涉的款項時，她已與陳先生育有一名女兒。縱觀上述這情況，上訴人指她是順從陳先生的要求借出私人銀行戶口和協助陳先生從戶口提取款項，是出於雙方的關係和維繫彼此的關係，及使子女的生活得到照顧，這些說法並非不可信。" } }, { "doc_id": 25, "seg_id": 40, "translation": { "en": "In passing sentence, the trial judge did not take into account that the appellant had committed the offences on account of her relationship with Mr Chan. This, in our view, is a relevant and important special factor which renders it appropriate to adopt 2 years’ imprisonment as the starting point for each of the two charges. In view of the appellant’s clear record and the need for her to look after three children, we agree that it was proper for the trial judge to reduce the term by another 3 months as she had done. It follows that the sentence for each charge should be 21 months’ imprisonment.", "zh-HK": "原審法官在量刑時，並沒有考慮到上訴人干犯罪行是出於與陳先生的關係。然而，本庭認為這是相關而且重要的特別因素，致使兩項控罪的適當量刑起點應是兩年監禁。有鑑於上訴人沒有刑事定罪記錄及她需要照顧3名子女，本庭同意原審法官給予額外3個月的刑期扣減是適當的做法。因此每項控罪的刑期應為21個月。" } }, { "doc_id": 25, "seg_id": 41, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 25, "seg_id": 42, "translation": { "en": "For the above reasons, we have allowed the appellant’s appeal against sentence, and reduced the sentence for each of Charges 1 and 2 to 21 months’ imprisonment, with the sentences to be served concurrently.", "zh-HK": "基於上述理由，本庭批准上訴人就刑期提出的上訴，把第一項及第二項控罪的刑期減為21個月，同期執行。" } }, { "doc_id": 25, "seg_id": 43, "translation": { "en": "Mr Edmond Lee, Senior Assistant Director of Public Prosecutions (Acting) of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司署理高級助理刑事檢控專員李俊文代表。" } }, { "doc_id": 25, "seg_id": 44, "translation": { "en": "The Appellant in person, present.", "zh-HK": "上訴人：無律師代表，親自出庭。" } }, { "doc_id": 26, "seg_id": 1, "translation": { "en": "Hon Yeung JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 26, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 26, "seg_id": 3, "translation": { "en": "The Applicants Lee Hon Wah (“Lee”) and Yan Tsz Ho (“Yan”) were charged with various counts of sexual abuse on a boy aged 14. The charges against Lee included indecent conduct with or towards a child under the age of 16 years (count 2), buggery with a man under 21 (count 3) and, alternative to count 3, another count of indecent conduct with or towards a child under the age of 16 years (count 4). The charges laid against Yan were two counts of buggery with a man under 21 (counts 1 and 5).", "zh-HK": "申請人李漢華（“李”）和甄梓豪（“甄”）被控多項性侵犯一名14歲男童的控罪。針對李的控罪包括第二項與或向16歲以下兒童作出猥褻行為罪，第三項與21歲以下男子肛交罪及和該項控罪交替之第四項與或向16歲以下兒童作出猥褻行為罪。針對甄的控罪則包括第一項及第五項與21歲以下男子肛交罪。" } }, { "doc_id": 26, "seg_id": 4, "translation": { "en": "Lee pleaded guilty to indecent conduct with or towards a child under the age of 16 years (count 2) but denied buggery with a man under 21 (count 3) and the other count of indecent conduct with or towards a child under the age of 16 years (count 4), which was alternative to count 3. After trial, he was found not guilty of count 3 but guilty of the alternative charge of indecent conduct with or towards a child under the age of 16 years (count 4). On counts 2 and 4, the trial judge, Maggie Poon J, sentenced Lee to respective prison terms of 20 months and 2 years and 6 months. The sentences were to run concurrently and Lee was to serve a total term of 2 years and 6 months.", "zh-HK": "李承認第二項與或向16歲以下兒童作出猥褻行為罪，但否認第三項與21歲以下男子肛交罪及和該項控罪交替之第四項與或向16歲以下兒童作出猥褻行為罪。經審訊後李被裁定第三項控罪不成立，但交替性之第四項與或向16歲以下兒童作出猥褻行為罪則成立。就第二及第四項定罪，主審法官潘敏琦判李分別入獄20個月及2年6個月，同期執行。李的總刑期為2年6個月。" } }, { "doc_id": 26, "seg_id": 5, "translation": { "en": "Yan pleaded guilty to counts 1 and 5 and was eventually sentenced to 40 months’ imprisonment. Maggie Poon J took 4 years as the starting point for each of these two offences and reduced the terms by one-third to 32 months. 8 months out of these terms were to run consecutively, making a total term of 40 months’ imprisonment against Yan.", "zh-HK": "甄則承認第一及第五項控罪，結果被判入獄40個月。潘法官以4年為每項控罪之量刑基準，並因甄承認控罪，將刑期扣減三份一至32個月。潘法官下令兩項定罪之刑期中8個月要分期執行而導致甄被判之40個月總刑期。" } }, { "doc_id": 26, "seg_id": 6, "translation": { "en": "Yan was aggrieved by the sentences whereas Lee was aggrieved by his conviction on count 4 and the sentences on the two counts concerned. They have lodged applications for leave to appeal respectively against the sentences as well as conviction and sentences.", "zh-HK": "甄不服判刑，而李則不服第四項控罪之定罪決定及兩項控罪之判刑。他們提出申請，要求獲准就判刑及定罪或判刑上訴。" } }, { "doc_id": 26, "seg_id": 7, "translation": { "en": "After hearing the case, we grant leave to appeal to the Applicants. Treating their applications as the appeals, we allow all the appeals herein. We quash the conviction and sentence against Lee on count 4 and reduce his sentence on count 2 from 20 months to 12 months. We also reduce the total term of imprisonment against Yan on counts 1 and 5 by half from 40 months to 20 months. Our reasons appear below.", "zh-HK": "經聆訊後，本庭批准申請人就定罪及判刑上訴，並視他們的申請為正式上訴。本庭裁定他們的上訴都得直。本庭撤銷針對李的第四項控罪之定罪及判刑，亦將第二項定罪的刑期由20個月減至12個月。本庭同時將針對甄的第一及第五項定罪的總刑期由40個月減半至20個月。以下是本庭的裁決理由。" } }, { "doc_id": 26, "seg_id": 8, "translation": { "en": "Prosecution’s Evidence against Lee", "zh-HK": "控方指控李的證據" } }, { "doc_id": 26, "seg_id": 9, "translation": { "en": "X, the boy involved in the present case, was born on 3 June 1994 and was aged 14-15 at the time of the offences. He resided with his parents and an elder brother in a private housing estate in Kwun Tong and was studying in Form 3 in Kowloon.", "zh-HK": "涉案男童X在1994年6月3日出生，案發時14-15歲。他和父母及兄長在觀塘一私人屋苑居住，及在九龍一中學就讀中三。" } }, { "doc_id": 26, "seg_id": 10, "translation": { "en": "According to X, having got acquainted with Lee through the Internet sometime in January or February 2009, he indicated to Lee that he was in need of money and hinted that he would agree to have certain sexual acts with him. They had contact and agreed on a price of $500 for the sexual transaction. Lee asked X to meet him in a bus terminus in Kwai Chung and they exchanged telephone numbers. Sometime between 9pm and 10pm on the same day, they met in the bus terminus and walked to a toilet for the disabled near a football pitch on On Chit Street. Inside the toilet, X performed oral sex on Lee. He then gave X $100 as remuneration.", "zh-HK": "X指在2009年1月或2月透過互聯網認識李後向他表示需要金錢並暗示同意和他進行某些性行為。雙方聯絡並同意以500元作為性交易的代價。李相約X在葵涌巴士總站見面，並交換電話號碼。同日晚上9-10時，兩人在巴士總站會合後步行前往安捷街足球場附近之一傷殘人士廁所內由X替他進行口交後，李支付100元給X作酬金。" } }, { "doc_id": 26, "seg_id": 11, "translation": { "en": "Subsequently, Lee took X to his residence in Kwai Chung (“the residence”). X performed oral sex on Lee who then offered to give X $250 as the price for anal sex. X said he was in need of money and therefore indicated that he agreed. After that, Lee had anal sex with X and required X to perform other sexual acts on him, but he only paid X $200.", "zh-HK": "其後李帶X返回其位於葵涌的居所（“該居所”）。X先替李口交而李則提議給X 250元，作為肛交的代價。X指自己因等錢用，故表示同意。其後李和X肛交及要X替他進行其他性行為，但只支付了200元給X。" } }, { "doc_id": 26, "seg_id": 12, "translation": { "en": "Lee’s Defences", "zh-HK": "李的答辯理由" } }, { "doc_id": 26, "seg_id": 13, "translation": { "en": "Lee admitted that X did perform oral sex on him in the toilet for the disabled. However, as X was not his type, he agreed to it only because X begged him for it. Lee also admitted to have put his finger(s) into X’s anus during the oral sex. He denied having any sexual act with X in “the residence”. According to him, the sole purpose of taking X to his home was to get some money to pay X and X also left immediately after receiving the money. Lee’s case was that X was not happy with receiving only $200 and therefore was seeking revenge. Before leaving his home, X had said to him, “I’ll remember you”.", "zh-HK": "李承認X曾在傷殘人士廁所替他口交，但指是在X哀求下他才答應的，原因是X並非他喜歡的類型。李亦承認在X替他口交期間，他有用手指插他的肛門，但否認有在“該居所”和X進行任何性行為。他指帶X返家唯一目的是拿錢給X而取錢後X便立刻離開。李的立場是X因不滿意只收取到200元，故要報復。李指X離開前向他表示“我會記住你”。" } }, { "doc_id": 26, "seg_id": 14, "translation": { "en": "Lee said to the Police after his arrest, “I only poked him with my finger(s) and he performed oral sex on me, there was nothing else”. The police officer claimed that at that time he was arresting Lee for having anal sex with a boy aged about 14 in a public housing unit in Kwai Chung sometime between 9 pm and 10 pm on a certain day between January and February 2009.", "zh-HK": "被捕後李向警員表示，“我凈係用手指插佢，同埋佢幫我口交，無其他嘢”。當時警員聲稱是以李在2009年1至2月期間某日晚上9至10時在葵涌區某一公屋單位內與一名年約14歲男童肛交而拘捕他的。" } }, { "doc_id": 26, "seg_id": 15, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 26, "seg_id": 16, "translation": { "en": "Mr. Selwyn So, counsel for Lee, contended in his written submission that the fact that the jury found his client not guilty on count 3, the buggery charge, indicated that they did not believe in X’s account of what had taken place in “the residence”. According to Mr. So, X’s evidence about “the residence” concerned wholly and only the allegation of anal sex. Therefore, as the jury declined to accept X’s evidence on that aspect, there was no other evidence to support the alternative charge of indecent conduct with or towards a child under the age of 16 years (count 4). In making his oral submission before us, Mr. So agreed that the standpoint in his written submission was not correct.", "zh-HK": "在其書面陳述，李的代表大律師蘇啟明指陪審團裁定第三項肛交罪罪名不成立，顯示他們不相信X指在“該居所”內發生的事。蘇大律師指X說及在“該居所”之證供，完全只和肛交有關，因此陪審團否定X的證供後便沒有任何其他證據支持交替性之第四項與或向16歲以下兒童作出猥褻行為罪。向本庭作口頭陳述時，蘇大律師同意其書面陳述的立場並非正確。" } }, { "doc_id": 26, "seg_id": 17, "translation": { "en": "Nonetheless, Mr. So stressed it was possible that Lee’s admission to the Police after his arrest was only about the things that had taken place in the toilet for the disabled, that is, the incidents referred to in count 2. He further stressed that although Lee agreed during cross examination that the police officer, in cautioning him, was referring to the things that had happened in “the residence”, in light of the background of this case, it was extremely likely that Lee gave that answer because of misunderstanding the question. He submitted that the trial judge, however, in addition to forbidding the Defence from seeking clarifications in re-examination, even made an assertion that Lee’s answer under cross examination was clear and there was nothing confusing or unclear, and therefore withdrew Lee’s answer that he was not clear about the location that the police officer was referring to.", "zh-HK": "但蘇大律師強調李在被捕後向警員承認的說話有可能只是和傷殘人士廁所內發生，即第二項控罪所指的事有關。蘇大律師強調，雖然李在盤問時同意警員警誡他時所指的是在“該居所”發生的事，但以本案的背景而言，李極可能是在誤解問題下作出該回應，但主審法官不但禁止辯方在覆問時作出澄清，更強指李在盤問時的答案清楚，並無混亂不清之處，故撤回了李指不清楚警員所指的地點之答案。" } }, { "doc_id": 26, "seg_id": 18, "translation": { "en": "Mr. So submitted that the way in which the trial judge handled that matter did cause unfairness to the Applicant.", "zh-HK": "蘇大律師指原審法官的處理方法對申請人做成不公。" } }, { "doc_id": 26, "seg_id": 19, "translation": { "en": "Discussion (Conviction)", "zh-HK": "討論（定罪）" } }, { "doc_id": 26, "seg_id": 20, "translation": { "en": "Mr. So once contended that X’s account of what had taken place in “the residence” concerned wholly and only the allegation of anal sex and therefore the fact that the jury found the 1st Applicant not guilty on count 3, the buggery charge, indicated that they completely declined to accept X’s account of what had taken place in the “residence”. Mr. So has already admitted that such a standpoint was incorrect.", "zh-HK": "蘇大律師曾指X說及在“該居所”發生的事，完全只和肛交有關，因此當陪審團裁定申請人第三項肛交罪罪名不成立時，表示陪審團完全否定X所指在“該居所”發生的事情。蘇大律師已承認該立場不正確。" } }, { "doc_id": 26, "seg_id": 21, "translation": { "en": "X’s evidence indicated that, in addition to anal sex, oral sex and other sexual acts had also taken place in “the residence”. Such sexual acts other than anal sex were sufficient to constitute an allegation against the 1st Applicant on an alternative charge of indecent conduct with or towards a child under the age of 16 years.", "zh-HK": "X的證供顯示他指在“該居所”發生事，除了肛交外，亦有口交和其他的性行為。該等肛交以外的性行為足以構成指控申請人的交替性與或向16歲以下兒童作出猥褻行為罪。" } }, { "doc_id": 26, "seg_id": 22, "translation": { "en": "In addition to X’s evidence, the offence for which the Police arrested Lee was that he had anal sex with a boy aged 14 in a public housing unit in Kwai Chung sometime between 9 pm and 10 pm on a certain day between January and February 2009. The matters referred to by the police took place in “the residence”, not in the toilet for the disabled. The admission Lee made under caution also constituted sufficient evidence for the jury to find him guilty of the alternative charge of indecent conduct with or towards a child under the age of 16 years.", "zh-HK": "除了X的證據外，警員是以李在2009年1月至2月期間某日晚上9至10時在葵涌某一公屋單位內與14歲男童肛交而拘捕他的。警員所指的事發生在“該居所”，而非在傷殘人士廁所內。李在警誡下，所作之招認亦構成足夠證據，導致陪審團裁定他交替性與或向16歲以下兒童作出猥褻行為罪罪名成立。" } }, { "doc_id": 26, "seg_id": 23, "translation": { "en": "Mr. So, however, averred that the trial judge had inappropriately disallowed the Defence’s clarification as to whether Lee was, in admitting to certain acts under caution, referring to the matters that had taken place in the toilet for the disabled or in “the residence”. Mr. So contended that the very reply given by Lee under cross examination obviously stemmed from misunderstanding and yet he did not have the opportunity to clarify on that during re-examination, the trial was therefore conducted unfairly.", "zh-HK": "但蘇大律師力指原審法官拒絕批准辯方澄清李在警誡下承認的行為究竟是發生在傷殘人士廁所或是發生在“該居所”是不恰當的。蘇大律師認為李在盤問時所作的回應明顯是因誤會所導致，但他卻沒有機會在覆問時澄清，因此審訊過程是不公平的。" } }, { "doc_id": 26, "seg_id": 24, "translation": { "en": "On the other hand, Mr. Martin Hui, Senior Public Prosecutor acting for the Respondent stressed that Lee, during cross examination, indicated in a straightforward, clear and unmistakable manner that when the police officer cautioned him, he understood that the officer was referring to things that had happened in “the residence”. The approach adopted by the trial judge in disallowing Mr. So’s re-examination on Lee as to whether he was clear about the place of offence the police officer was referring to in the caution was therefore, in his view, not inappropriate, much less had caused unfairness.", "zh-HK": "代表答辯人的高級檢控官許紹鼎則強調李在盤問時有直截了當、清晰無誤地表明警員警誡他時，他是理解警員所指是發生在“該居所”的事。因此原審法官不批准蘇大律師在覆問時就李是否清楚警員警誡他時所指的犯罪地點的做法並無不妥，更沒有導致不公。" } }, { "doc_id": 26, "seg_id": 25, "translation": { "en": "The cross examination referred to by Mr. Hui is recorded on page 158 line G to page 160 line A of the transcript of the trial. The questions and answers are cited as follows:", "zh-HK": "許高級檢控官所指的盤問在審訊謄本第158頁G至160頁A出現，現將該對答及覆問詳情複述如下：" } }, { "doc_id": 26, "seg_id": 26, "translation": { "en": "“Q:My question is, at that time, the caut – I mean, the relevant caution – he has also testified, I mean, DPC52634, did say to you the reason for arresting (you), right?", "zh-HK": "“問：我問題就係當時警--即係有關嘅警誡喇，佢都有嚟呢個作供喇，即係呢個探員52634，有同你講即係嗰個拘捕嘅理由，對唔對？" } }, { "doc_id": 26, "seg_id": 27, "translation": { "en": "A:(He) did.", "zh-HK": "答：有。" } }, { "doc_id": 26, "seg_id": 28, "translation": { "en": "Q:The reason was unlawful buggery with a man under the age of 21, because I have reason(s) to believe you had anal sex with a boy (name of the victim) aged about 14 in a public housing unit in Kwai Chung sometime between 9pm and 10pm on a certain day between January and February 2009. That was the reason for arresting you, he did say that to you, is that right?", "zh-HK": "問：個理由就係非法與呢個21歲以下男子進行肛交，因為我有理由相信你喺2009年1月至2月期間某日晚上9時至10時喺葵涌區或者公屋單位內與一名年約14歲男童（受害人名字）進行肛交。呢個就係個拘捕理由，佢有咁講畀你聽㗎，對唔對？" } }, { "doc_id": 26, "seg_id": 29, "translation": { "en": "A:Right.", "zh-HK": "答：係。" } }, { "doc_id": 26, "seg_id": 30, "translation": { "en": "Q:Well, later, under caution, you gave this reply: “Ah Sir, I only poked him with my finger(s) and he performed oral sex on me, there was nothing else”. Is that correct?", "zh-HK": "問：咁後期就喺警誡下，你嘅回應就係話「阿Sir，我凈係用手指插佢，同埋佢幫我口交，冇其他嘢」，對唔對？" } }, { "doc_id": 26, "seg_id": 31, "translation": { "en": "A:Disagree.", "zh-HK": "答：唔同意。" } }, { "doc_id": 26, "seg_id": 32, "translation": { "en": "Q:What you mean is – by saying that you disagree, are you saying that you did not say those words?", "zh-HK": "問︰你嘅意思係咪，你唔同意意思即係話你冇講過呢句嘢？" } }, { "doc_id": 26, "seg_id": 33, "translation": { "en": "A:I said not only those words.", "zh-HK": "答：我唔凈只講過呢句嘢。" } }, { "doc_id": 26, "seg_id": 34, "translation": { "en": "Q:So, did (you) say these words?", "zh-HK": "問：即係呢句嘢有冇講先？" } }, { "doc_id": 26, "seg_id": 35, "translation": { "en": "A:(I) did say that.", "zh-HK": "答：有講。" } }, { "doc_id": 26, "seg_id": 36, "translation": { "en": "Q:(You) did say that. Well, in addition to these words, what else did you say?", "zh-HK": "問：有講。咁除咗呢句嘢之外，你仲有講過咩嘢其他嘢？" } }, { "doc_id": 26, "seg_id": 37, "translation": { "en": "A:The whole of what I said was: “I didn’t, Ah Sir, I only poked him with my finger(s), he performed oral sex on me, there was nothing else”.", "zh-HK": "答：我全句係講「我冇呀，阿Sir，我凈係用手指插佢肛門，佢幫我口交，冇其他嘢」。" } }, { "doc_id": 26, "seg_id": 38, "translation": { "en": "Q:That’s all?", "zh-HK": "問︰就係咁多？" } }, { "doc_id": 26, "seg_id": 39, "translation": { "en": "A:Hm.", "zh-HK": "答：唔。" } }, { "doc_id": 26, "seg_id": 40, "translation": { "en": "Q:Put it to you that at that time you were very clear that (he) was talking about the acts that had taken place in your home, the oral sex and the anal sex that had taken place in your home. Do you agree?", "zh-HK": "問：向你指出，當時你係好清楚講緊嘅就係喺你屋企裡面發生嘅行為，你屋企裡面發生嘅口交同埋呢個肛交。同唔同意？" } }, { "doc_id": 26, "seg_id": 41, "translation": { "en": "A:Whom do you mean was talking about that?", "zh-HK": "答：你講邊個講緊？" } }, { "doc_id": 26, "seg_id": 42, "translation": { "en": "Q:I now put it to you that, at that time when you were being cautioned, that is, when being cautioned by DPC52634, you were well aware that the incident the detective was talking about with you, the incident for which you were cautioned, the incident for which you were arrested -- he was talking about the acts that had taken place in your home (that is, Room 1006). Is that right?", "zh-HK": "問：我而家向你指出，當時你被警誡，即係被呢個探員52634警誡嗰陣，你好清楚知道探員同你講緊嗰件事，警誡你嗰件事，拘捕你嗰件事係講緊你屋企（即係1006室）裡面所發生嘅行為。對唔對？" } }, { "doc_id": 26, "seg_id": 43, "translation": { "en": "A:Right.", "zh-HK": "答：係。" } }, { "doc_id": 26, "seg_id": 44, "translation": { "en": "Q:After that, you also had the opportunity to read it once by yourself, is that right? The record.", "zh-HK": "問︰然之後亦都有機會你自己睇過一次㗎嘛，對唔對？呢個紀錄。" } }, { "doc_id": 26, "seg_id": 45, "translation": { "en": "A:Right.", "zh-HK": "答：係。" } }, { "doc_id": 26, "seg_id": 46, "translation": { "en": "Q:DPC52634 also read it to you once, is that right?", "zh-HK": "問：佢呢個探員52634亦都有向你覆讀過一次㗎喇，對唔對？" } }, { "doc_id": 26, "seg_id": 47, "translation": { "en": "A:Right.", "zh-HK": "答：係。" } }, { "doc_id": 26, "seg_id": 48, "translation": { "en": "Q:Well, you were also asked, you were asked whether there was the need to make any amendment, correction or addition, is that right?", "zh-HK": "問：咁亦都問你，問過你就係需唔需要呢個修改、更正或者係增補咁，對唔對？" } }, { "doc_id": 26, "seg_id": 49, "translation": { "en": "A:Right.", "zh-HK": "答：係。" } }, { "doc_id": 26, "seg_id": 50, "translation": { "en": "Q:Well, you yourself also said there was no need, right? No need to make amendment, correction or addition, is that right?", "zh-HK": "問︰咁你自己亦都話係冇需要吖嘛，係咪？冇需要呢個係修改、更正、增補吖嘛，對唔對？" } }, { "doc_id": 26, "seg_id": 51, "translation": { "en": "A:Right.", "zh-HK": "答：係。" } }, { "doc_id": 26, "seg_id": 52, "translation": { "en": "Q:And then you wrote down this declaration by yourself, that is, on the – on pages 42 and 43 of the notebook, is that right?", "zh-HK": "問：然後亦都係由你自己親手寫低咗呢段聲明嘅，即係喺呢個--嗰個記事冊嘅第42頁同埋43頁，對唔對？" } }, { "doc_id": 26, "seg_id": 53, "translation": { "en": "A:Yes.", "zh-HK": "答：係。" } }, { "doc_id": 26, "seg_id": 54, "translation": { "en": "Q:This record is accurate, I suppose, agree?", "zh-HK": "問：準確嘅，呢個紀錄應該，同唔同意？" } }, { "doc_id": 26, "seg_id": 55, "translation": { "en": "A:He wrote down roughly what I meant.", "zh-HK": "答：佢寫咗我大概嘅意思出嚟囉。" } }, { "doc_id": 26, "seg_id": 56, "translation": { "en": "Q:Put it to you that it is an accurate record. Agree?", "zh-HK": "問︰向你指出，呢個係一個準確嘅紀錄喇。同唔同意？" } }, { "doc_id": 26, "seg_id": 57, "translation": { "en": "A:Disagree.", "zh-HK": "答：唔同意。" } }, { "doc_id": 26, "seg_id": 58, "translation": { "en": "Mr. Lo: Thank you, Mr. Lee. Your Ladyship, that’s all for my cross examination.", "zh-HK": "盧先生：唔該，李生。法官閣下，我嘅盤問係咁多。" } }, { "doc_id": 26, "seg_id": 59, "translation": { "en": "Court:Mr. So?", "zh-HK": "官：蘇大律師？" } }, { "doc_id": 26, "seg_id": 60, "translation": { "en": "Mr. So:Yes, got one question.", "zh-HK": "蘇先生：係，有一個問題。" } }, { "doc_id": 26, "seg_id": 61, "translation": { "en": "Re-examination by Mr. So", "zh-HK": "蘇先生補問" } }, { "doc_id": 26, "seg_id": 62, "translation": { "en": "Q:Just now you were…", "zh-HK": "問：啱啱你係畀..." } }, { "doc_id": 26, "seg_id": 63, "translation": { "en": "Mr. So:Yes, still need the notebook.", "zh-HK": "蘇先生：係，嗰本note book仲要。" } }, { "doc_id": 26, "seg_id": 64, "translation": { "en": "Q:Just now the Prosecutor’s question to you, that is, this – the question to you was that you were clear the police officer – whether (you) were clear that the police officer was talking about your acts in room 1006 – in your home in room 1006, and your answer was (“)right(”). What did you mean you were clear about?", "zh-HK": "問：啱啱主控問你，就係喺呢個--問你係清楚呢個警員--係咪清楚警員講緊係關於你喺1006室--喺你屋企1006室嘅行為，你嘅答案係嘅，你話你清楚啲乜嘢？" } }, { "doc_id": 26, "seg_id": 65, "translation": { "en": "A:That he was talking about anal sex.", "zh-HK": "答：佢講肛交囉。" } }, { "doc_id": 26, "seg_id": 66, "translation": { "en": "Court:Hang on, there is already – there is nothing ambiguous that requires clarification, this question is withdrawn, disallowed.", "zh-HK": "官：等等，嗰度已經--嗰度冇任何嘅含糊之處需要澄清，呢個問題撤回，唔准問。" } }, { "doc_id": 26, "seg_id": 67, "translation": { "en": "Mr. So:Your Ladyship, why? You see, the question put was he said that you (sic) were clear about …", "zh-HK": "蘇先生：法官閣下，點解呢？因為嗰個問題佢話你清楚係..." } }, { "doc_id": 26, "seg_id": 68, "translation": { "en": "Court:At that time he was clear that, as for the case being investigated, the police officer was talking about the oral sex and anal sex that took place in his home, and his answer was “right”. I don’t think there is anything that requires clarification. I have made my ruling, right.", "zh-HK": "官：佢當時係清楚警員調查緊嘅案係講你喺屋企中嘅口交同埋肛交，佢個答案係「係」，我唔認為有咩嘢需要澄清嘅地方，我已經作出咗裁決喇，係。" } }, { "doc_id": 26, "seg_id": 69, "translation": { "en": "Mr. So:That question itself consists of two…", "zh-HK": "蘇先生：嗰個問題本身有兩個..." } }, { "doc_id": 26, "seg_id": 70, "translation": { "en": "Court:Ruling already made, hm.", "zh-HK": "官：已經作出咗裁決喇，唔。" } }, { "doc_id": 26, "seg_id": 71, "translation": { "en": "Q:The offence for which the police officer cautioned you was buggery, you were clear about that, right?", "zh-HK": "問：對於警員警誡你個罪名係講肛交，你清楚㗎喇？" } }, { "doc_id": 26, "seg_id": 72, "translation": { "en": "A:Right.", "zh-HK": "答：係。" } }, { "doc_id": 26, "seg_id": 73, "translation": { "en": "Q:Were you clear about the place?", "zh-HK": "問︰個地點你清唔清楚？" } }, { "doc_id": 26, "seg_id": 74, "translation": { "en": "A:Not clear.", "zh-HK": "答：唔清楚。" } }, { "doc_id": 26, "seg_id": 75, "translation": { "en": "Mr. So:No further questions.", "zh-HK": "蘇先生：冇其他問題。" } }, { "doc_id": 26, "seg_id": 76, "translation": { "en": "Court:Please withdraw the last question. Just now I – that concerns what I have already ruled on just now.", "zh-HK": "官：最後嗰個問題請你撤回，我剛才--呢個已經係我剛才作出裁決嘅地方。" } }, { "doc_id": 26, "seg_id": 77, "translation": { "en": "Mr. So:But the police officer said …", "zh-HK": "蘇先生：但係警員講..." } }, { "doc_id": 26, "seg_id": 78, "translation": { "en": "Court:That was a leading question, I have made a ruling, the last answer should be ignored, the last answer is deleted. Thank you, please return to your seat.”", "zh-HK": "官：呢個係一個leading question，我已經作出咗裁決，最後嗰個答案唔需要顧及，剔除最後嗰個答案。唔該晒，請你返去你原先嘅座位。”" } }, { "doc_id": 26, "seg_id": 79, "translation": { "en": "It can be seen from the above exchange that, when Lee was cautioned by the police officer, it was possible that his focus was only on the acts mentioned in the allegations, not the place.", "zh-HK": "從上述對答可見，李遭警誡時集中注意的可能只是警員指控他的行為，而非事發地點。" } }, { "doc_id": 26, "seg_id": 80, "translation": { "en": "Under cross examination, the Prosecutor put to Lee that when he was cautioned, he was “well aware that the incident the detective was talking about with you, the incident for which you were cautioned, the incident for which you were arrested -- he was talking about the acts that had taken place in your home (that is, Room 1006)” and Lee’s answer was “right”. However, the Prosecutor’s question could be interpreted as consisting of two parts: (1) the acts involved in the incident and (2) the place where the incident took place.", "zh-HK": "盤問下李對檢控官指他遭警誡時“好清楚知道探員同你講緊嗰件事，警誡你嗰件事，拘捕你嗰件事係講緊你屋企（即係1006室）面所發生嘅行為”，李回答“係”，但檢控官的問題可被詮釋為分開兩個部份，（一）是事件涉及的行為，（二）是事件發生的地點。" } }, { "doc_id": 26, "seg_id": 81, "translation": { "en": "As the unfavourable answer given by Lee during cross examination might have come about because of misunderstanding, he should have been given the opportunity to explain and clarify in re-examination. Even if the reply given by Lee during cross examination was clear and unmistakable, there could be other reasons that had made him give an inconsistent reply. He should have been given the opportunity to state to the court those reasons.", "zh-HK": "當李在接受盤問時作出對他不利的答案可能是在誤解的情況出現時，他應該獲得機會在覆問時作出解釋及澄清。即使李在盤問時所作的回應是清晰無誤的，他亦有可能有其他理由，作出前後不一致的回應。他應有機會向法庭表述該些理由。" } }, { "doc_id": 26, "seg_id": 82, "translation": { "en": "We have to stress that, the decision of whether or not to allow the Defence to make clarifications in re-examination could not turn solely on just a couple of simple replies of “right” given by Lee during his cross examination. The trial judge should have taken into account the circumstances of the case as a whole in order to make a reasonable and fair ruling.", "zh-HK": "本庭要強調，決定應否批准辯方在覆問作出澄清，不能只根據李在盤問時作出的一兩句簡單“係”的回應為依歸。主審法官理應將案件的整體情況一併考慮在內，而作出合理公平的裁決。" } }, { "doc_id": 26, "seg_id": 83, "translation": { "en": "We cannot ignore the fact that Lee’s position was all along clear and specific. Besides, it has never changed. He agreed that he had had, in the toilet for the disabled, certain indecent conduct with X, including oral sex and poking finger(s) into X’s anus. However, he denied having anal sex or any indecent conduct in “the residence”. Such clear and specific position was fully expressed in the cross examination of X.", "zh-HK": "本庭不能忽視由始至終, 李的立場是明確的，亦是從沒有改變過的，他同意曾在傷殘人士廁所內和X有過猥褻行為，包括口交及用手指插X的肛門，但他否認有在“該居所”和X肛交或進行過任何猥褻行為。上述明確立場，在盤問X時已表露無遺。" } }, { "doc_id": 26, "seg_id": 84, "translation": { "en": "As a matter of fact, in giving evidence, the police officer did not specify that he had clearly indicated in his caution on Lee that the place of offence was “the residence”. The exchange between the Prosecutor and police officer is as follows:", "zh-HK": "事實上，警員在作供時，亦沒有表明警誡李時，他有指明案發地點是“該居所”。當時警員有和主控官有以下的對答：" } }, { "doc_id": 26, "seg_id": 85, "translation": { "en": "“Q: Please slowly state the reason for the arrest.", "zh-HK": "“問：請你慢慢講出嗰個拘捕理由係乜嘢吖?" } }, { "doc_id": 26, "seg_id": 86, "translation": { "en": "A:Arrested him for the offence of unlawful buggery with a man under the age of 21, and then cautioned him.", "zh-HK": "答：拘捕佢嗰個罪名就係非法與21歲以下男子進行肛交嘅罪名，跟住就警誡佢。" } }, { "doc_id": 26, "seg_id": 87, "translation": { "en": "Q:Right, and then did Lee Hon Wah anything (sic), the …", "zh-HK": "問：係，咁然之後李漢華有冇任何嘢呀，呢個…" } }, { "doc_id": 26, "seg_id": 88, "translation": { "en": "Court:What is meant by “caution”? Perhaps the jury would like to know what is meant by “caution”.", "zh-HK": "官：咩嘢叫做「警誡」呀？陪審員可能想知道咩嘢叫做「警誡」。" } }, { "doc_id": 26, "seg_id": 89, "translation": { "en": "Mr. Lo:Yes, right.", "zh-HK": "盧先生：係，好。" } }, { "doc_id": 26, "seg_id": 90, "translation": { "en": "A:Caution is in fact – let me read out the content of the whole elegiac speech(sic) (?). In fact, caution means telling the other party that – in fact, caution is to say “You are not obliged to say anything unless you wish to do so but what you say may be written down and given in evidence.” The purpose is to let the other party know that he has such rights, has the right to remain silent, right.", "zh-HK": "答：警誡其實係- -容許我讀番成段個祭文（？）嗰個內容喇，其實警誡就係話畀對方- -其實警誡就係話「唔係事必要你講嘅，除非你自己想講喇，但係你所講嘅嘢可能用筆寫低及用嚟做證供嘅。」就令到對方知道佢有咁嘅權利，有個緘默權喺度，係喇。" } }, { "doc_id": 26, "seg_id": 91, "translation": { "en": "Q:Well, then, did the defendant have anything to say?", "zh-HK": "問：咁好喇，之後被告人有冇任何嘢講呢？" } }, { "doc_id": 26, "seg_id": 92, "translation": { "en": "A:Yes.", "zh-HK": "答：有。" } }, { "doc_id": 26, "seg_id": 93, "translation": { "en": "Q:Please tell us, that is, what did he say to you at that time, what was said?", "zh-HK": "問：請你講番，即係當時佢點樣同你講，講啲乜嘢呢？" } }, { "doc_id": 26, "seg_id": 94, "translation": { "en": "A:“Ah Sir, I only poked him with my hand(s) – poked him with my finger(s), and he – performed oral sex on me – for me, there was nothing else.” These were (said) after the caution …", "zh-HK": "答：「阿Sir, 我凈係用手插佢- -用手指插佢，同埋佢同我- - 幫我口交，冇其他嘢。」呢段嘢就係警誡完之後…" } }, { "doc_id": 26, "seg_id": 95, "translation": { "en": "Q:Did he say anything else?", "zh-HK": "問：佢仲有冇其他嘢講過呀？" } }, { "doc_id": 26, "seg_id": 96, "translation": { "en": "A:No", "zh-HK": "答：冇" } }, { "doc_id": 26, "seg_id": 97, "translation": { "en": "Q:After that, was it the case that you used your notebook to record the course of his arrest?", "zh-HK": "問：隨後你係咪用你自己本身嘅記事冊將剛才嗰個拘捕過程係紀錄低呀？" } }, { "doc_id": 26, "seg_id": 98, "translation": { "en": "A:Exactly.", "zh-HK": "答：全中。" } }, { "doc_id": 26, "seg_id": 99, "translation": { "en": "Q:You mean you agree?", "zh-HK": "問：即係同意咁？" } }, { "doc_id": 26, "seg_id": 100, "translation": { "en": "A:Right.", "zh-HK": "答：係。" } }, { "doc_id": 26, "seg_id": 101, "translation": { "en": "Q:And then at 7:25, did you read to him the relevant record you had made?", "zh-HK": "問：然之後喺7點25分，你係咪向佢覆閱番你有關嘅紀錄呀？" } }, { "doc_id": 26, "seg_id": 102, "translation": { "en": "A:Yes.", "zh-HK": "答：係。" } }, { "doc_id": 26, "seg_id": 103, "translation": { "en": "Q:And he also read it once, by himself, right?", "zh-HK": "問：亦都由佢覆讀一次咁樣，係咪，自己？”" } }, { "doc_id": 26, "seg_id": 104, "translation": { "en": "During cross examination, the police officer also agreed that Lee, without indicating that he understood after being cautioned, gave a reply right away.", "zh-HK": "被盤問時，警員亦同意遭警誡後，李並沒有表示明白警誡，就立刻作出回應。" } }, { "doc_id": 26, "seg_id": 105, "translation": { "en": "The matters stated above indicate that when Lee was cautioned, it was possible that his attention was focused on the acts alleged, not the locations thereof. Lee’s reply under re-examination also proves the above mentioned circumstances. The questions and answers between Mr. So and Lee were as follows:", "zh-HK": "上述事件都顯示李遭警誡時，注意力可能只是集中在指控他的行為，而非事發的地點。在覆問時，李的回應亦證實上述情況。當時李和蘇大律師有以下的對答：" } }, { "doc_id": 26, "seg_id": 106, "translation": { "en": "“Q:Just now the Prosecutor’s question to you, that is, this – the question to you was that you were clear the police officer – whether (you) were clear that the police officer was talking about you acts in room 1006 – in your home in room 1006, and your answer was (“)right(”). What did you mean you were clear about?", "zh-HK": "“問：啱啱主控問你，就係喺呢個--問你係清楚呢個警員--係咪清楚警員講緊係關於你喺1006室--喺你屋企1006室嘅行為，你嘅答案係嘅，你話你清楚啲乜嘢？" } }, { "doc_id": 26, "seg_id": 107, "translation": { "en": "A:That he was talking about anal sex.", "zh-HK": "答：佢講肛交囉。" } }, { "doc_id": 26, "seg_id": 108, "translation": { "en": "Q:The offence for which the police officer cautioned you was buggery, you were clear about that, right?", "zh-HK": "問：對於警員警誡你個罪名係講肛交，你清楚㗎喇？" } }, { "doc_id": 26, "seg_id": 109, "translation": { "en": "A:Right.", "zh-HK": "答：係。" } }, { "doc_id": 26, "seg_id": 110, "translation": { "en": "Q:Were you clear about the place?", "zh-HK": "問︰個地點你清唔清楚？" } }, { "doc_id": 26, "seg_id": 111, "translation": { "en": "A:Not clear.", "zh-HK": "答：唔清楚。”" } }, { "doc_id": 26, "seg_id": 112, "translation": { "en": "When Lee gave the above reply, the trial judge immediately, in the presence of the jury, told the Defence to withdraw the question and answer and indicated that she had already given a ruling on the issue concerned. The approach of the trial judge dealt a fatal blow to the defences. When there is dilemmatic or inconsistent evidence, the suitable approach is to give both parties the opportunity to explore on it further and not to block such channels. The trial judge’s order(s) to have certain questions and answers withdrawn would only make the jury think that she had already decided on those questions and the issues related to those questions and therefore there was no need to waste any more time to think further on the issues concerned.", "zh-HK": "當李作出上述回應時，原審法官便立刻在陪審團在場下，要辯方撤回問題及答案，更表示她已就有關問題作出裁決。原審法官的做法對辯方的答辯理由會造成致命性的打擊。當有矛盾或前後不符的證供出現時，適當的做法是容許雙方有機會再作探討，而非堵塞探討的渠道。主審法官下令撤回某些問題及答案，更會令陪審團認為主審法官已對該些問題及與問題有關的議題作出定奪，因此無需浪費時間，再思考有關議題。" } }, { "doc_id": 26, "seg_id": 113, "translation": { "en": "We are of the view that the trial judge, in disallowing Lee to explain further in re-examination the reply he gave when cautioned by the police officer and in ordering to have his reply withdrawn, did indeed cause unfairness on Lee.", "zh-HK": "本庭認為原審法官不批准李在覆問時就警員警誡他時作出的回應再作解釋，更下令撤回他已作出的回應，確有對李做成不公平之處。" } }, { "doc_id": 26, "seg_id": 114, "translation": { "en": "In the above circumstances, we agree with Mr. So’s case. The conviction on count 4, indecent conduct with or towards a child under the age of 16 years, is unsafe. For this reason, we grant leave to appeal to Lee on count 4. Treating his application as the appeal itself, we allow the appeal and quash the conviction and sentence against him on count 4.", "zh-HK": "在上述情況下，本庭認同蘇大律師的立場，第四項16歲以下兒童作出猥褻行為的定罪是不穩妥的。因此本庭批准李就第四項控罪上訴，並視其申請為正式上訴。本庭裁定李的上訴得直，第四項定罪及判刑都撤銷。" } }, { "doc_id": 26, "seg_id": 115, "translation": { "en": "Lee’s Sentence and Grounds of Appeal", "zh-HK": "李的判刑及上訴理由" } }, { "doc_id": 26, "seg_id": 116, "translation": { "en": "On count 2, Lee was sentenced to 20 months’ imprisonment on a guilty plea. That indicates that the trial judge had taken 30 months as the starting point. Mr. So contended that it was excessive.", "zh-HK": "就第二項控罪，李認罪後遭判監20個月，顯示原審法官採納30個月的量刑基準。蘇大律師指該量刑基準過高。" } }, { "doc_id": 26, "seg_id": 117, "translation": { "en": "Mr. So stressed that the case of HKSAR v See Tak Man (CACC707/1997) mentioned by the trial judge in passing the sentence was of a different nature and greater severity and should not have been used as the basis for sentencing in the present case.", "zh-HK": "蘇大律師強調原審法官判刑時提及的HKSAR v 施德文 （CACC 707/1997）案，和本案性質不同，嚴重性亦較高，因此不應作為判刑的基礎。" } }, { "doc_id": 26, "seg_id": 118, "translation": { "en": "Mr. So pointed out that in HKSAR v Wong Ka Wai (transliteration) and others (HCCC3/2009), the defendant, having pleaded guilty to indecent conduct with or towards a child under the age of 16 years and buggery with a man under 21, was only sentenced to 12 months’ imprisonment on each count and the terms were to be served concurrently.", "zh-HK": "蘇大律師指在香港特別行政區 訴 黃嘉緯及他人（HCCC 3/2009）案，被告人承認向16歲以下兒童作出猥褻行為罪及與年紀在21歲以下男子作出肛交罪後，只被判每項控罪入獄12個月，同期執行。" } }, { "doc_id": 26, "seg_id": 119, "translation": { "en": "Mr. So submitted that the guilt of the 1st Applicant was even less than that of the defendant concerned in Wong Ka Wai’s case and therefore a sentence of 9 months’ imprisonment should be imposed.", "zh-HK": "蘇大律師指申請人的罪責較黃嘉緯案的被告人的罪責更輕，故判刑應為9個月。" } }, { "doc_id": 26, "seg_id": 120, "translation": { "en": "Yan’s Sentence and Grounds of Appeal", "zh-HK": "甄的判刑及上訴理由" } }, { "doc_id": 26, "seg_id": 121, "translation": { "en": "Mr. Wong Hay Yiu, counsel for Yan, put forward several grounds of appeal in his written submission. However, in the end, Mr. Wong abandoned most of the grounds of appeals stated in the written submission and only stressed that, in light of the comparison between the facts of this case and those of similar cases, the sentence on Yan was manifestly excessive.", "zh-HK": "在其書面陳述，代表甄的大律師王熙曜提出多項上訴理由。但王大律師最終放棄了大部份書面陳述列出的上訴理由，而只是強調以本案的案情和其他同類案件相比，甄的判刑屬明顯過重。" } }, { "doc_id": 26, "seg_id": 122, "translation": { "en": "Mr. Wong stressed that in the society of modern times, the perceptions on certain acts have changed and the court should not be biased against homosexual acts. Mr. Wong submitted that Yan was about 26 years’ old at the time of the offences and therefore still young. He came from a good background and was of clear record.", "zh-HK": "王大律師強調近代社會對某些行為觀感之改變，法庭不應對同性性行為有偏見。王大律師指出甄犯案時約26歲，仍屬年青。他出身良好，亦沒有犯罪記錄。" } }, { "doc_id": 26, "seg_id": 123, "translation": { "en": "Mr. Wong also cited certain similar cases to lend support to his contention that the sentences in the present case were excessive.", "zh-HK": "王大律師亦援引一些同類案件，以加強他指本案判刑過重的說法。" } }, { "doc_id": 26, "seg_id": 124, "translation": { "en": "Discussion (Sentence)", "zh-HK": "討論（判刑）" } }, { "doc_id": 26, "seg_id": 125, "translation": { "en": "Different cases of homosexual buggery and indecent conduct with or towards a child under the age of 16 years involve offenders and victims of different age, background and relationship. The severities of respective circumstances of offences could also vary widely. It is therefore very difficult to give suitable sentencing guideline. Besides, sentences in similar cases are of limited assistance as a guide to sentencing in individual cases.", "zh-HK": "在同性肛交及與16歲以下兒童作出猥褻行為的罪行的案件，犯案人和受害人的年齡、背景及關係各有不同。犯案情況之嚴重性之差別亦可能很大，因此很難作出適當之量刑指引。其他同類案件之判刑，對個別案件判刑之指導作用亦是有限。" } }, { "doc_id": 26, "seg_id": 126, "translation": { "en": "We shall cite the comment of Ma CJHC (as he then was) in paragraph 27 of the judgment of HKSAR v Chow Yuen Fai (CACC392/2008):", "zh-HK": "本庭想複述高等法院首席法官馬道立（當時官階）在香港特別行政區 訴 周遠輝（CACC 392/2008）案判案書第27段所作的評論：" } }, { "doc_id": 26, "seg_id": 127, "translation": { "en": "It is possible that the offences are committed by two young people, of little age difference, in agreement and in private. It is also possible that it does not involve any threat and inducement, not to mention any exploitation, corruption and deprivation on one party by the other. In the course of the offence, both parties might have taken adequate preventive and safety measures and that no health and safety risks to the other party or the public will be caused. In these circumstances, it should be open to the court to exercise leniency.", "zh-HK": "“以肛交及非體案件犯案的各種各樣情況，要為該類罪行定下量刑標準，既不可能，亦不切實際。因此與較早前案件相關的判刑，作用不大。”" } }, { "doc_id": 26, "seg_id": 128, "translation": { "en": "The circumstances at the other extreme would be that an adult male intimidating a child with force in order to make him/her succumb and, in the course of such acts, using violence on this victim, causing unnecessary pain and injury, infecting the victim with disease(s) or causing other psychological traumas. Offences as such might be even more serious that those of certain categories such as rape and the sentences therefor should also be manifestly heavier. This also explains why the legislative authority has set the maximum penalty for buggery with a man or girl under 21 at life imprisonment. Even if the defendant has not intimidated the victim with force, if inducement was used as the means to make the young victim forego one’s dignity and fall prey to his licentious exploitation, the offence is definitely not minor.", "zh-HK": "另一極端情況是一名成年男子，以武力威嚇一名小孩，要他就範，而在過程中，更對受害人施用暴力，令受害人蒙受不必要的痛苦及損傷或導致他染病或其他心理創傷。該等罪行可能較某類別，如強姦更為嚴重，判刑亦要顯著地較重。這亦解釋為何立法機關將與21歲以下男子或女童肛交罪的最高判刑定為終身監禁。即使被告人沒有以武力威嚇受害人，但如果他施以利誘，令年輕受害人放棄尊嚴，以供其淫辱，罪行當然亦屬不輕。" } }, { "doc_id": 26, "seg_id": 129, "translation": { "en": "The offences involved in such cases not only might affect the victims themselves. They also cause profound distress to the victims’ families, in particular the parents of young victims. We will not view these factors lightly.", "zh-HK": "案件所涉的罪行，不單可能會對受害人個人有影響，對受害人的家人，特別是年輕受害人的父母亦會做成極大困擾，本庭不會輕視。" } }, { "doc_id": 26, "seg_id": 130, "translation": { "en": "We are of the view that, in the sentencing of cases involving buggery with a man under 21 and indecent conduct with or towards a child under the age of 16 years, factors that the court has to consider include:", "zh-HK": "本庭認為在和21歲以下男子肛交罪及與或向16歲以下兒童作出猥褻行為罪案件判刑時，法庭要考慮的因素包括：" } }, { "doc_id": 26, "seg_id": 131, "translation": { "en": "the age difference between the defendant and the victim;", "zh-HK": "被告人和受害人年齡的差距；" } }, { "doc_id": 26, "seg_id": 132, "translation": { "en": "the relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust at the time of the offence;", "zh-HK": "被告人和受害人的關係，包括被告人是否有利用其職位或身份去犯案及犯案時是否有破壞別人對他的信任；" } }, { "doc_id": 26, "seg_id": 133, "translation": { "en": "whether the defendant had used threats or inducements to make the victim succumb, falling prey to his licentious exploitation;", "zh-HK": "被告人是否有威迫或利誘受害人，令受害人就範，供其淫辱；" } }, { "doc_id": 26, "seg_id": 134, "translation": { "en": "the number of occasions of committing the offences and the duration of the offences;", "zh-HK": "犯案次數的多少及犯案時段之長短；" } }, { "doc_id": 26, "seg_id": 135, "translation": { "en": "whether inappropriate and unnecessary violence was involved in committing the offences and whether any harm or discomfort was caused to the victim;", "zh-HK": "犯案時是否涉及不當及不必要之暴力，或是否有對受害人做成傷害或不適；" } }, { "doc_id": 26, "seg_id": 136, "translation": { "en": "whether any suitable safety measures were taken in committing the offences and whether any hazard to the health and safety of the victim and the public was caused;", "zh-HK": "犯案時是否有採用適當之安全措施，是否有對受害人及大眾的衛生安全造成危害；" } }, { "doc_id": 26, "seg_id": 137, "translation": { "en": "whether the offences have caused physical or psychological traumas to the victim;", "zh-HK": "罪行是否有對受害人做成身體傷害或心理創傷；" } }, { "doc_id": 26, "seg_id": 138, "translation": { "en": "whether the offences have impacted on the family members of the victim;", "zh-HK": "罪行對受害人的家人有否做成影響；" } }, { "doc_id": 26, "seg_id": 139, "translation": { "en": "was the defendant involved in other inappropriate behaviours such as inviting/permitting other people to watch or take photos/videos; and", "zh-HK": "被告人是否涉及其他不當行為，例如邀請/容許他人在場觀看或拍照/錄像等行為；及" } }, { "doc_id": 26, "seg_id": 140, "translation": { "en": "whether the defendant is psychologically imbalanced or paedophilic and the likelihood of re-offending.", "zh-HK": "被告人是否有心理失衡或孌童癖好，與重犯機會的高低等。" } }, { "doc_id": 26, "seg_id": 141, "translation": { "en": "It is, of course, also essential for the court to consider the mitigating factors that are favourable to the defendant before an appropriate sentence could be imposed.", "zh-HK": "當然，法庭亦必需將有利被告人的求情因素考慮在內，才作出適當之判刑。" } }, { "doc_id": 26, "seg_id": 142, "translation": { "en": "Lee’s Sentence", "zh-HK": "李的判刑" } }, { "doc_id": 26, "seg_id": 143, "translation": { "en": "Lee pleaded guilty to indecent conduct with or towards a child under the age of 16 years (count 2), contrary to Section 146(1) of the Crimes Ordinance. The maximum penalty is 10 years’ imprisonment.", "zh-HK": "李承認第二項與或向16歲以下兒童作出猥褻行為罪，違反《刑事罪行條例》第146（1）條。該罪行的最高判刑為監禁10年。" } }, { "doc_id": 26, "seg_id": 144, "translation": { "en": "At the time of the offences, X was above the age of 14 and not yet 15 whereas Lee was 34 years’ old. The age difference between them was not small. However, in the present case, no threat or duress was involved. Obviously, X was not an innocent child being taken advantage of by another person. He took the initiative to tout for “business” on homosexual website and provided sex service voluntarily in order to make money.", "zh-HK": "案發時X超過14歲，但不足15歲，而李則是34歲，雙方年齡差距不少。但本案不涉及任何威迫行為。X明顯並非無知兒童，遭人利用。他在同性戀網頁主動向同性戀者招攬“生意”，自願提供性服務以賺取金錢。" } }, { "doc_id": 26, "seg_id": 145, "translation": { "en": "Although Lee did corrupt X’s mind to a certain extent in agreeing to pay him in exchange for sex service, given X’s background and experience, this factor is not of much severity. As a matter of fact, certain information shows that X was even more corrupt than Lee. X admitted in his testimony that another client wanted to be present to watch the sexual transaction between him and Lee. He hoped that Lee would agree so that he could make more money but Lee objected.", "zh-HK": "雖然李同意支付金錢，以取得X之性服務，某程度有腐化X的心智，但以X之背景及經驗，該因素之嚴重性不太大，事實上有資料顯示X的腐化程度比李有過之而無不及。X作證時承認他有另一顧客想在場觀看他和李的性交易活動，他希望李同意，令他能賺取更多金錢，但李反對。" } }, { "doc_id": 26, "seg_id": 146, "translation": { "en": "Lee has only one criminal record. He came from a good background, has a stable job and has no previous conviction. In addition, there are no other aggravating factors. We take the view that the starting point of count 2, to which he pleaded guilty, should be 18 months’ imprisonment.", "zh-HK": "李只有一次犯案記錄，他出身良好，有穩定職業，沒有任何犯罪前科，加上沒有其他加重罪責因素，本庭認為他承認的第二項控罪的量刑基準應為18個月監禁。" } }, { "doc_id": 26, "seg_id": 147, "translation": { "en": "Lee is entitled to a one-third discount as he pleaded guilty to the charge. We therefore reduce the sentence to 12 months.", "zh-HK": "李承認控罪，應獲三份一之刑期扣減，因此本庭將他的刑期減至12個月。" } }, { "doc_id": 26, "seg_id": 148, "translation": { "en": "Yan’s Sentence", "zh-HK": "甄的判刑" } }, { "doc_id": 26, "seg_id": 149, "translation": { "en": "Yan pleaded guilty to two counts of buggery with a man under 21. He was 26 at the time of the offences and the age difference between him and X is smaller. Our observation on X above also applies to the sentencing of Yan. Obviously, X had the transactions with Yan on his own initiative and voluntarily with a view to making money. The case did not involve any threat, exploitation or corruption of another person.", "zh-HK": "甄承認兩項與21歲以下男子肛交罪。甄犯案時26歲，和X年齡的差距較細。本庭對X以上的觀察對甄的判刑亦適用。X明顯是主動及自願和甄進行交易，以賺取金錢，案件不涉及任何威迫、剝削、甚至腐化他人的行為。" } }, { "doc_id": 26, "seg_id": 150, "translation": { "en": "Nonetheless, we cannot overlook the fact that Yan used money to get sex service from a 14-year-old boy and did not take safety measures when he had anal sex with X. These are aggravating factors.", "zh-HK": "但本庭不能忽視甄以金錢換取一名14歲男童的性服務，而他和X肛交時，並沒有採取安全措施。上述事項都是加重罪責因素。" } }, { "doc_id": 26, "seg_id": 151, "translation": { "en": "On the other hand, Yan came from a good background and was educated. He had a stable job and had the support from his family. Yan has no previous record, we also hope that this is a lesson to him not to have inappropriate sexual acts with underage boys again.", "zh-HK": "另一方面，甄的出身良好、受過教育、有穩定職業、更得到家人支持。甄沒有犯案前科，本庭亦希望他今次得到教訓，不再和未成年男童進行不當之性行為。" } }, { "doc_id": 26, "seg_id": 152, "translation": { "en": "On the background of the case as a whole, we take the view that 2 years’ imprisonment is the appropriate starting point for each of the two counts of buggery with a man under 21 faced by Yan. He had pleaded guilty and the sentences should be reduced by one third to 16 months. As the two offences were about 5 months apart, part of the sentence should run consecutively.", "zh-HK": "以案件整體背景而言，本庭認為甄面對的二項與21歲以下男子肛交罪，適當的量刑基準都是2年監禁。甄承認控罪，刑期理應減三份一至16個月。兩項控罪犯案期分隔約5個月，部份刑期應分期執行。" } }, { "doc_id": 26, "seg_id": 153, "translation": { "en": "We order that 4 months of the 16 months’ imprisonment on count 5 shall run consecutively to the sentence on count 1. The total term of imprisonment on Yan is reduced from 40 months to 20 months.", "zh-HK": "本庭下令第五項控罪的16個月的判刑中有4個月要和第一項控罪的判刑分期執行。甄的總刑期由40個月減至20個月。" } }, { "doc_id": 26, "seg_id": 154, "translation": { "en": "Mr. Selwyn So, instructed by Simon Wong & Co. and assigned by the Legal Aid Department, for the 1st Applicant (conviction and sentence).", "zh-HK": "第一申請人（定罪和判刑）：由法律援助署委派黃國康律師事務所轉聘蘇啟明大律師代表。" } }, { "doc_id": 26, "seg_id": 155, "translation": { "en": "Wong Hay Yiu, instructed by Fong Yin Cheung & Co. and assigned by the Legal Aid Department, for the 2nd Applicant (sentence).", "zh-HK": "第二申請人（判刑）：由法律援助署委派方燕翔律師行轉聘王熙曜大律師代表。" } }, { "doc_id": 26, "seg_id": 156, "translation": { "en": "Martin Hui, Senior Public Prosecutor of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級檢控官許紹鼎代表。" } }, { "doc_id": 27, "seg_id": 1, "translation": { "en": "Hon Yeun JA (giving the Reasons for Judgment of the Court):", "zh-HK": "上訴法庭法官袁家寧頒發上訴法庭判案理由書：" } }, { "doc_id": 27, "seg_id": 2, "translation": { "en": "The applicant, Yeung Kam Yuen, was the 2nd defendant in the case. He was charged with three counts of assisting the passage to Hong Kong of a conveyance which carried unauthorized entrants. (Emphasis added).", "zh-HK": "申請人楊錦源是本案第二被告人，他被控3項「 協助載有未獲授權進境者的運輸工具前來香港的旅程」罪。(橫線後加，以示強調) 。" } }, { "doc_id": 27, "seg_id": 3, "translation": { "en": "He pleaded not guilty and was tried before Deputy District Judge Sham. On 31 December 2009, he was convicted of the three charges and sentenced to 4 ½ years of imprisonment.", "zh-HK": "他否認控罪, 案件由區域法院沈小民暫委法官審理。, 法官裁定他3項控罪罪名成立, 及將他判處4年半監禁。" } }, { "doc_id": 27, "seg_id": 4, "translation": { "en": "The applicant applied for leave to appeal against conviction and sentence. Upon considering the submissions from both parties, we dismissed his application for leave to appeal against conviction. Leave was granted to him for application to appeal against sentence, and treating the application as the appeal, the appeal was allowed and the total sentence on the applicant was reduced from 4 ½ years to 4 years, to be served concurrently in respect of the three charges. The following are our reasons for the judgment.", "zh-HK": "申請人提出許可申請, 就定罪及判刑提出上訴。經考慮雙方陳詞後，本庭駁回申請人就定罪的上訴許可申請，批准他就判刑的上訴許可申請，並視其申請為正式上訴，判上訴得直，申請人的總刑期由4年半減至4年，三項控罪同期執行。本庭的判案理由如下。" } }, { "doc_id": 27, "seg_id": 5, "translation": { "en": "The prosecution alleged that at around 1 a.m. on 13 June 2009, 15 unlawful entrants arrived Hong Kong by boat and were received by a woman (the 1st defendant) after landing on a beach at Tung Chung. Several minutes later, three taxis arrived at an unnamed road near the beach. The applicant was the driver of one of the taxis while the 3rd and the 4th defendants were the drivers of the other two taxis. The unlawful entrants came out from a water channel and boarded the three taxis separately. PW4 was one of the unlawful entrants. He testified in court that the applicant had urged him to get in the vehicle quickly and therefore, he, together with others, boarded the applicant’s taxi. The taxi drove in the direction of Kowloon. The 1st defendant did not get into any taxi and was arrested by the police who were laying in ambush at the scene. Later, the police intercepted those taxis. At that time, the applicant’s taxi was carrying two men and three women who were unlawful entrants. The police arrested all the passengers and the driver. From the person of the applicant, the police seized six mobile phones, five of which had SIM cards installed. Evidence showed that over thirty phone calls had been made in that night between the applicant and the other two taxi drivers.", "zh-HK": "控方證據指，凌晨1時左右, 15名非法入境者乘船抵港，在東涌一沙灘登陸，由一名女子(案中第一被告)接待。幾分鐘後，有3部的士到達沙灘附近一條無名路。申請人駕駛其中1部的士，案中第三及第四被告則駕駛另外兩部的士。非法入境者從水渠處走出來，分別登上3部的士。控方第四證人是非法入境者之一，他在庭上作供說申請人曾催促他上車，他便與其他人登上申請人那部的士。的士駛往九龍方向。第一被告沒有上的士，被在場埋伏的警員拘捕。後來，警員截停該幾部的士，當時申請人的士載有兩男三女非法入境者。警員將全部司機及乘客拘捕。警員從申請人的身上撿獲6部手提電話，其中有5部安裝了SIM 卡，證據顯示當晚申請人與另外兩名的士司機互相有30多次電話聯絡。" } }, { "doc_id": 27, "seg_id": 6, "translation": { "en": "In his cautioned statement and testimony in court, the applicant said that he always gave 20% off to customers who called to hire his taxi. On the day in question, before 7 p.m., he received a phone call from someone who called herself “Miss Lee”. He said he did not know her nor her phone number. Since she had taken his taxi before, she got his name card. Miss Lee at first asked him to arrange a taxi to pick up passenger(s) at 1 a.m. However, she did not specify the pickup point or the destination. The applicant did not accept her request. Within the next six hours, she called the applicant time and again, asking for three taxis in total. However, the pickup point and the destination were still unconfirmed. The applicant said that eventually, at around 1 a.m., Miss Lee called him on the phone again, asking for taxis to go to a power station in the vicinity of Discovery Bay. The applicant said that since he happened to reach Tung Chung while he was driving, he accepted the request and also found two other taxis for Miss Lee. When he drove to the vicinity of the power station, five men and women got in his taxi. He said that he did not find them suspicious in any way, because he had picked up customers in that vicinity before, for example, people who went fishing, construction site workers, Discovery Bay staff, etc.", "zh-HK": "申請人在警戒供詞及庭上作供說，他做八折收費的士，接受客人的電話傳召。案發當晚的7時前，他接到一名自稱「小姐」的電話，他說他並不認識對方，也不知道她的電話號碼，她因乘搭過他的的士，所以有他的卡片。小姐最初要求他於凌晨1時安排1部的士接客，但沒有說明接客地點或目的地。申請人沒有應承她。在其後的6小時內，她再多次致電申請人，要求加到3部的士，但仍然沒有落實接客地點或目的地。申請人說後來到凌晨1時左右，小姐又再打電話給他，要求的士往愉景灣附近一發電站。申請人稱他剛巧駛到東涌，所以答應前往，另外他又替小姐找了其他兩部的士。他駛到發電站附近，有5名男女坐上的士，他說不覺得他們有甚麼可疑，因為他以前在附近都有接載客人, 例如是釣魚人仕，地盤工人，及愉景灣員工等。" } }, { "doc_id": 27, "seg_id": 7, "translation": { "en": "The trial judge found that the applicant knew that the passengers were unlawful entrants based on the following factors: the applicant, in the small hours and at a remote place, picked up people who were not waiting at the road side but came out from a water channel; the three taxis arrived almost at the same time, yet there were over thirty phone calls between the drivers, which showed that it was not a normal pickup arrangement; moreover, according to the applicant, Miss Lee kept calling him on the phone to make the pickup booking several hours in advance, yet the location was not disclosed, which again, was unusual. The trial judge found that the only inference to be drawn was that the applicant knew full well that that group of people came to Hong Kong illegally.", "zh-HK": "原審法官是基於以下因素裁定申請人知道接載的人士是非法入境者: 申請人是在凌晨時份，在偏僻的地方，接載一些並非在路邊等候，而是從水渠處走出來的人; 3部的士是差不多同一時間到達，而司機之間事前竟有30多次通電，這顯示非是正常的接載客人的安排; 再者, 據申請人說，小姐不斷打電話給他，預約在幾小時後的接載, 但又沒有披露地點，這也並不尋常。原審法官裁定，唯一的推斷，是申請人清楚知道那群人是偷渡來港的。" } }, { "doc_id": 27, "seg_id": 8, "translation": { "en": "Regarding the sentence, after referring to the decision in HKSAR v Chan Lai Choi, CACC166/1997,the trial judge took three years of imprisonment as the starting point. However, since the applicant was the middleman of the organization who summoned the other taxi drivers to carry unlawful entrants, his culpability was greater. The trial judge thus sentenced him to four years of imprisonment. Further, since the case involved 15 unlawful entrants, parts of the sentence had to be served consecutively. The applicant was sentence to a total of four and a half years of imprisonment.", "zh-HK": "判刑方面，原審法官參考過上訴法庭在HKSAR v Chan Lai Choi (陳禮財) CACC166/1997案例的判決，認為3年監禁是量刑基凖，但基於申請人是組織的中間人，召集其他的士司機去運載非法入境者，刑責較大，所以法官判處他4年監禁，再因為案件涉及15名非法入境者，所以部份刑期要分期執行，申請人被判監禁共4年半。" } }, { "doc_id": 27, "seg_id": 9, "translation": { "en": "The first ground of appeal put forward by the applicant was that the charge and particulars of offence faced by him accused him of “assisting the passage to Hong Kong of a conveyance which carried unauthorized entrants”. However, the prosecution evidence only consisted of those unlawful entrants’ passage within Hong Kong.", "zh-HK": "申請人的上訴理由是，第一，他所面對的控罪及詳情，都是指他犯了「 協助載有未獲授權進境者的運輸工具前來香港的旅程」罪，但控方所提出的證據，只是有關非法入境者在香港境內的旅程。" } }, { "doc_id": 27, "seg_id": 10, "translation": { "en": "We are of the view that:", "zh-HK": "本庭認為:" } }, { "doc_id": 27, "seg_id": 11, "translation": { "en": "According to HKSAR v Huynh Bat Muoi, CACC28/2000, the Court of Appeal has the power to amend the charge on an appeal. Section 23(1) of the Criminal Procedure Ordinance, Cap. 221 provides that:", "zh-HK": "根據HKSAR v Huynh Bat Muoi CACC28/2000案例, 上訴法庭有權在上訴過程中修訂控罪 (amend the charge) 。根據「香港法例」第221章「刑事訴訟程序條例」第23(1) 條:" } }, { "doc_id": 27, "seg_id": 12, "translation": { "en": "“Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice.”", "zh-HK": "「凡在審訊前或在審訊的任何階段，法庭覺得公訴書欠妥，法庭須作出其認為符合案件情況所需的命令以修訂公訴書，但如在顧及案件的是非曲直後，覺得作出所需的修訂必會造成不公正，則屬例外。」" } }, { "doc_id": 27, "seg_id": 13, "translation": { "en": "There is precedent of amending the charge in this type of cases. In HKSAR v Cheng Chi Yung, CACC338/2003, the Court of Appeal, by virtue of section 23 (1) mentioned above, amended the Statement of Offence, so that “to Hong Kong” was replaced with “within Hong Kong”. Counsel for the applicant in our case submitted that in Cheng Chi Yung, only the Statement of Offence was wrong, whereas the Particulars of Offence did aver that the crime was committed within Hong Kong (paragraph 14). Therefore, the indictment in Cheng Chi Yung was defective and could be amended by virtue of s. 23(1). However, in the present case, both the Statement of Offence and the Particulars of Offence used the same wordings “to Hong Kong” and thus s. 23(1) did not apply. We do not accept this argument. We do not see any reason to restrict the power of amendment in s. 23 (1) to the narrow scope of the above circumstances or to cases involving typographical error, as suggested by counsel for the applicant. Such restriction cannot be found in the letter of the Ordinance. Counsel for the applicant also indicated that a magistrate could amend the charge in the circumstances of the present case according to the Magistrates Ordinance. That being the case, what is the legal basis for a District Court case to be dealt with differently? Counsel for the applicant was unable to come up with sufficient legal basis in support of his argument. We are of the view that there is no distinction in principle between the circumstances of the present case and those of Cheng Chi Yung, and that this court may amend the indictment by virtue of s. 23(1).", "zh-HK": "於這類案件中對控罪作出修改是有先例的。在HKSAR v Cheng Chi Yung (鄭智勇) CACC338/2003一案, 上訴法庭便根據上述第23 (1) 條, 就罪行陳述內容，將「前來香港」改為「在香港境內」。本上訴申請人代表大律師陳詞說，在鄭智勇案，只是罪行陳述出錯，而罪行詳情是確有指出罪行是在香港境內干犯的(第14段) ，所以在鄭智勇案，公訴書欠妥，可以根據第23(1) 條修訂，但在本案中，無論罪行陳述抑或罪行詳情，都是只用「前來香港」字眼，所以第23(1) 不適用。本庭不接納這觀點。本庭看不到有任何理由，需把第23(1) 條的修訂權利，狹窄地局限於上述的情況，或如申請人代表大律師所提議的手民之誤的情況。條例文字上沒有任何顯示須有這種局限。申請人代表大律師曾表示，根據《裁判官條例》，裁判官應可以在本案情況下修訂控罪。既然如此，為何在法理上，區域法院的案件是需要另一種方法處理? 申請人代表大律師未能提出充份的法理依據來支持他的觀點。本庭認為本案與鄭智勇案的情況在原則上沒有分別，本庭可以根據第23(1) 條修訂公訴書。" } }, { "doc_id": 27, "seg_id": 14, "translation": { "en": "As pointed out by this court in HKSAR v Wong Kim Fai [2001] 1 HKLRD 424, if there was insufficient evidence to support a charge in an indictment, but there was other ample evidence to support other charges, the court should not neglect such evidence and was entitled to amend the charge sheet; nevertheless, whether the court should do so in individual cases depends on whether any injustice would be caused to the defendant. In this regard, the court will take into consideration factors such as the position of the defence, the grounds of the defence, whether witnesses can be recalled for the defence to cross-examine and so on.", "zh-HK": "誠如本庭在香港特別行政區 訴 黄劍輝 [2001] 1 HKLRD 424 案例中指出，如果公訴書所指的罪行證據不足，但案中存在其他充分證據以支持其他控罪，法庭是不可以漠視該些證據，法庭是有權修訂控罪書; 但在個别案件中，法庭應否這樣做，便要視乎是否對被告人造成不公，而法庭這方面的考慮包括辯方的立場，抗辯理由，可否重召證人供辯方盤問，等等因素。" } }, { "doc_id": 27, "seg_id": 15, "translation": { "en": "At the trial, the relevant issue about the charge was raised and discussed. The then legal representative of the applicant had already stated that the defence would not be inflexible about the wordings of the charge. He stated the position expressly:", "zh-HK": "在本案原審時，相關控罪的問題也被提出過討論。申請人當時的法律代表已說明不會執著於控罪的字眼，他表明立場說:" } }, { "doc_id": 27, "seg_id": 16, "translation": { "en": "“Court:But would you argue the point about “to”?", "zh-HK": "「 官：但係你會唔會拗係嗰個「前來」嗰度呢？" } }, { "doc_id": 27, "seg_id": 17, "translation": { "en": "MR WONG:I believe (we) would not be too inflexible about this point. It is because it seems that “to” could have a wider definition which includes passage after his arrival—had reached the territory, to his destination; it may also be included in the scope of his (passage) “to”. Therefore, I do not intent to waste the court’s time to dwell on this point.”", "zh-HK": "MR WONG：我相信唔會太過執著嗰點，因為似乎「前來」可能係會比較闊啲嘅嗰個定義係包含埋佢落咗--到咗境之後嘅旅程，去佢嘅目的地，可能都係包含埋佢「前來」嗰個範疇裡面，所以我唔打算浪費法庭嘅時間去斟酌嗰一點。」" } }, { "doc_id": 27, "seg_id": 18, "translation": { "en": "(See page 309 of the Appeal Bundle, i.e., page 259 I-K of the Transcript.)", "zh-HK": "(參考上訴宗卷第309頁，即謄本第259頁I-K) 。" } }, { "doc_id": 27, "seg_id": 19, "translation": { "en": "Based on the above reasons, we are of the view that an amendment of the charge now to delete the words “to Hong Kong” and substitute them with “within Hong Kong” would not cause any injustice to the applicant. On this basis, there is no substantive arguable issue in the first ground of appeal.", "zh-HK": "基於以上理由，本庭認為在現時修改控罪，即删除「前來香港」字眼而改為「在香港境內」，不會對申請人造成不公。在這基礎上, 有關第一項的上訴理由並無實質可供爭議之處。" } }, { "doc_id": 27, "seg_id": 20, "translation": { "en": "The second ground of appeal put forward by the applicant was that the trial judge failed to take into consideration the safeguard offered by the “presumption of innocence”.", "zh-HK": "申請人的第二項上訴理由是，原審法官未有考慮「無罪假設」的保障。" } }, { "doc_id": 27, "seg_id": 21, "translation": { "en": "The applicant was charged with section 37D of the Immigration Ordinance, which provides that:", "zh-HK": "申請人被控「入境條例」第37D 條。第37D條如下:" } }, { "doc_id": 27, "seg_id": 22, "translation": { "en": "“(1) Subject to subsection (2), any person who, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong-", "zh-HK": "「 (1) 除第(2)款另有規定外，任何人如自行或代表任何其他人(不論該其他人是否在香港)─" } }, { "doc_id": 27, "seg_id": 23, "translation": { "en": "(a) arranges or assists the passage to, or within, Hong Kong;", "zh-HK": "(a) 安排或協助未獲授權進境者或載有未獲授權進境者的運輸工具前來香港或在香港境內的旅程；" } }, { "doc_id": 27, "seg_id": 24, "translation": { "en": "(b) offers to arrange or assist the passage to, or within, Hong Kong; or", "zh-HK": "(b) 要約安排或協助未獲授權進境者或載有未獲授權進境者的運輸工具前來香港或在香港境內的旅程；或" } }, { "doc_id": 27, "seg_id": 25, "translation": { "en": "(c) does or offers to do an act preparatory to or for the purpose of arranging or assisting the passage to, or within, Hong Kong,", "zh-HK": "(c) 作出或要約作出一項作為，以準備安排或協助，或旨在安排或協助未獲授權進境者或載有未獲授權進境者的運輸工具前來香港的旅程或在香港境內的旅程，" } }, { "doc_id": 27, "seg_id": 26, "translation": { "en": "of a person who is, or of a conveyance which carries, an unauthorized entrant, commits an offence and is liable-", "zh-HK": "均屬犯罪─" } }, { "doc_id": 27, "seg_id": 27, "translation": { "en": "(i) on conviction on indictment to a fine of $5000000 and to imprisonment for 14 years; (Amended 82 of 1993 s. 8)", "zh-HK": "(i) 經公訴程序定罪後，可處罰款$5000000及監禁14年； (由1993年第82號第8條修訂)" } }, { "doc_id": 27, "seg_id": 28, "translation": { "en": "(ii) on summary conviction to a fine of $350000 and to imprisonment for 3 years. (Amended L.N. 25 of 1996)", "zh-HK": "(ii) 經簡易程序定罪後，可處罰款$350000及監禁3年。..(由1996年第25號法律公告修訂)" } }, { "doc_id": 27, "seg_id": 29, "translation": { "en": "(2) No person shall be convicted of an offence under subsection (1) if he proves that he did not know, had no reason to suspect and could not with reasonable diligence have discovered-", "zh-HK": "(2) 任何人如能證明他不知道，亦沒有理由懷疑，並在合理努力下不能發現─" } }, { "doc_id": 27, "seg_id": 30, "translation": { "en": "(a) that the person whose carriage on a conveyance or whose passage is the subject of the charge, was an unauthorized entrant; or", "zh-HK": "(a) 其被運輸工具運載或其旅程乃構成控罪標的之人，是未獲授權進境者；或" } }, { "doc_id": 27, "seg_id": 31, "translation": { "en": "(b) that the conveyance in relation to which he is charged was carrying, or would carry, any unauthorized entrant,", "zh-HK": "(b) 與其控罪有關的運輸工具，載有或會載有未獲授權進境者，" } }, { "doc_id": 27, "seg_id": 32, "translation": { "en": "as the case may be.”", "zh-HK": "即不得裁定他犯第(1)款所訂的罪行。」" } }, { "doc_id": 27, "seg_id": 33, "translation": { "en": "(1) At the beginning of the submission made by counsel for the applicant, he said that the statutory construction of the statutory offence set out in s. 37D required the prosecution to prove the mens rea in relation to each element of the charge beyond reasonable doubt. His argument implied that this statutory offence fell into the first alternative set out by the Court of Final Appeal in paragraph 96 of HKSAR v Hin Lin Yee [2010] 2 HKLRD 826.", "zh-HK": "(1) 申請人代表大律師陳詞首先說，第37D這項法定罪行 (statutory offence) 的法律釋義 (statutory construction) 是控方必須在「毫無合理疑點」的標準下，證明控罪每一元素的犯罪意圖。他這說法，意味著這項法定罪行是終審法院在HKSAR v Hin Lin Yee [2010] 2 HKLRD 826案例中，第96段所列舉的第一項選擇。" } }, { "doc_id": 27, "seg_id": 34, "translation": { "en": "In Hin Lin Yee, the Court of Final Appeal discussed thoroughly the defendant’s mental state that the prosecution is required to prove in various statutory offences. The Court of Final Appeal explained that when a statutory offence is silent as to the state of mind required, it is incumbent on the prosecution to prove mens rea in relation to each element of the offence (paragraphs 40-41). This is the “presumption of mens rea” (we are of the view that it is the same concept as the “presumption of innocence”).", "zh-HK": "在Hin Lin Yee 案例，終審法院已全面地討論了控方在控訴不同的法定罪行時，所需證明的被告人心態(defendant’s mental state)。終審法院述明，當某一項法定罪行沒有提到被告人的心態時，那麼法庭的出發點是，應該推定控方必須證明被告人就罪行每個元素的犯罪意圖(mens rea)( 第40-41段) 。這是「犯罪意圖的推定」(“presumption of mens rea”) (本庭認為亦即是「無罪推定」 (“presumption of innocence”) 的同一概念)。" } }, { "doc_id": 27, "seg_id": 35, "translation": { "en": "However, the Court of Final Appeal also pointed out that a statute may displace the “presumption of mens rea” expressly or by necessary implication (paragraph 43). The Court of Final Appeal listed out five possibilities that arise in respect of the mental requirement attaches to a statutory offence. The first (the strictest) alternative is that the prosecution must prove mens rea beyond reasonable doubt; the fifth (the loosest) alternative is that the presumption is displaced, so that the prosecution succeeds if the accused is proved to have performed the actus reus, regardless of his state of mind (paragraph 96).", "zh-HK": "但終審法院亦指出，「犯罪意圖的推定」是可以由法例明示的字眼，或必然的默示，所取代的(第43段)。終審法院列出，法定罪行所需的心態，有5個可能性，由第一個(最嚴謹的)選擇，即控方必須以「毫無合理疑點下」的標準，證明犯罪意圖; 至第五個(最寬鬆的) 選擇，即犯罪意圖的推定已被取代，而不論被告人的心態為何，控方只需證明了犯罪行為(actus reus) ，被告人便罪名成立 (第96段)。" } }, { "doc_id": 27, "seg_id": 36, "translation": { "en": "In relation to s. 37D in this case, we do not think that the mental requirement falls within the first alternative as suggested by counsel for the applicant. Instead, it falls within the third alternative listed by the Court of Final Appeal, which is also known as “the defence approach”, namely, that the presumption has been displaced so that the prosecution need not prove mens rea but that the accused has a good defence if he can prove on the balance of probabilities that the prohibited act was done in the honest and reasonable belief that the circumstances were such that, if true, he would not be guilty of the offence (paragraph 96).", "zh-HK": "就本案第37D條而言，本庭認為該條例所需的心態，並不是申請人代表大律師所提議的第一個選擇的心態，而是終審法院所列出的第三個選擇。第三個選擇又名「辯護的取向」(“the defence approach”) ，即是犯罪意圖的推定已被取代，控方不需要證明被告人有犯罪意圖，但是如果被告人以「相對可能性較高」的標準，證明他誠實及合理地相信真確的情況，他便可解脫罪名(第96段)。" } }, { "doc_id": 27, "seg_id": 37, "translation": { "en": "Applying the above approach to the defence provided in s. 37D(2), it means that the defendant has to prove on the balance of probabilities that his act was done in the honest and reasonable belief that the circumstances were such that he did not know, had no reason to suspect and could not with reasonable diligence have discovered that the passengers he carried in his taxi were unlawful entrants.", "zh-HK": "套入第37D(2) 條所賦予的辯護，就是被告人需要以「相對可能性較高」的標準，證明他誠實及合理地相信情況是令他不知道，亦沒有理由懷疑，並在合理努力下都不能發現，他的士所載的人是非法入境者。" } }, { "doc_id": 27, "seg_id": 38, "translation": { "en": "However, counsel for the applicant submitted forcefully that it involved reverse onus of proof and therefore violated his human right to “presumption of innocence”. We are of the view that even if s. 37D imposes an additional persuasive burden of proof on the defendant, this court should therefore read it down as imposing an evidential burden instead which is less harsh on the defendant (see HKSAR v Lam Kwong Wai [2006] 3 HKLRD 808, HKSAR v Gurung Krishna [2010] 4 HKLRD 456). Nevertheless, in the present case, there is still ample evidence showing that the applicant knew full well that he was carrying unlawful entrants. The trial judge has already listed many pieces of prosecution evidence in this regard, for example, there were multiple contacts between the applicant and the other two taxis; the applicant, in the small hours, at a remote place, picked up people who were not waiting by the road side but came out from a water channel instead; and he even urged them to get in the vehicle quickly. All these show that the applicant in fact knew that his passengers were unlawful entrants. Under these circumstances, this ground of appeal cannot stand.", "zh-HK": "然而申請人代表大律師力陳，這是涉及「顛倒舉證責任」 (reverse onus), 因而觸犯「無罪推定」的人權。本庭認為，即使第37(D) 條是施加一項「具說服力的舉證責任」 (persuasive burden) 於被告人身上，本庭因此而應該以對被告人有利的「提證責任」 (evidential burden) 來作詮釋(見HKSAR v Lam Kwong Wai [2006] 3 HKLRD 808, HKSAR v Gurung Krishna [2010] 4 HKLRD 456案例) ，在本案中, 仍然有充足證據顯示申請人清楚知道他是接載非法入境者。原審法官已列出多項控方證據例如，申請人與另外兩部的士，經多次互相聯絡，在凌晨的時份，在偏僻的地方，接載一些並非在路邊等候，而是從水渠處走出來的人，還催促他們上車，顯示申請人其實是知道他所接載的是非法入境者。在這情況下, 這項上訴理由也不能成立。" } }, { "doc_id": 27, "seg_id": 39, "translation": { "en": "The third ground of appeal put forward by the applicant was that the trial judge, without evidential support, made a finding about taxi operation based on his own “daily experience”. We agree with the trial judge that the evidence listed above in this case indicated that the passengers were unlawful entrants. The version of events (namely, a Miss Lee, having phoned him many times in six hours without specifying the pickup point) put forward by the applicant in his self defence also clearly differs from what happens every day and common sense. Therefore, in the light of the facts in the present case, there is nothing improper in the verdict of the trial judge.", "zh-HK": "申請人的第三項上訴理由是，原審法官在沒有證據支持下，自以「日常生活經驗」，去作出有關的士運作的裁決。本庭同意原審法官列出案中上述的證據，顯示接載的人是非法入境者，而申請人自辯時所說(有關李小姐6小時內多次電召去沒有說明接客的地點)的一套，亦明顯地與日常情況及常理有異，所以在本案的案情下, 原審法官的裁決並無不妥。" } }, { "doc_id": 27, "seg_id": 40, "translation": { "en": "Having considered the above arguments from the applicant and the replies from the respondent, we do not think that the applicant’s appeal has any chance of success.", "zh-HK": "考慮過申請人上述論點，與及答辯的回應，本庭認為申請人的上訴沒有成功機會。" } }, { "doc_id": 27, "seg_id": 41, "translation": { "en": "Regarding the sentence, the judge has already enhanced the starting point to four years to reflect that the case involved a number of unlawful entrants. As the three offences took place at the same time, we do not think that there is any justification to further order parts of the sentence to be served consecutively.", "zh-HK": "至於判刑方面，法官把判刑起點上調至四年，已反映了案件牽涉多名非法入境者，而三項罪行都是同時間發生的, 所以本庭認為沒有理據再命令部份刑期分期執行。" } }, { "doc_id": 27, "seg_id": 42, "translation": { "en": "Accordingly, we dismissed the applicant’s application for leave to appeal against conviction. Leave was given to him for application to appeal against sentence, and treating the application as the appeal, the appeal was allowed and the total sentence on the applicant be reduced from 4 ½ years to 4 years, to be served concurrently in respect of the three charges.", "zh-HK": "基於以上理由，本庭駁回了申請人就定罪的上訴許可申請，批准申請人就判刑的上訴許可申請，並視其申請為正式上訴，判上訴得直，申請人的總刑期由4年半減至4年，三項控罪同期執行。" } }, { "doc_id": 27, "seg_id": 43, "translation": { "en": "Philip Wong, instructed by Chan Raymond, Kenneth Yuen & Co., for the Applicant (the 2nd Defendant).", "zh-HK": "申請人(第二被告人): 由陳兆明袁耀彬律師事務所轉聘大律師黃志偉代表。" } }, { "doc_id": 27, "seg_id": 44, "translation": { "en": "Martin Hui, Senior Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官許紹鼎代表。" } }, { "doc_id": 28, "seg_id": 1, "translation": { "en": "Hon Yeung V-P (giving the judgment of the Court):", "zh-HK": "上訴法庭副庭長楊振權頒發上訴法庭判案書：" } }, { "doc_id": 28, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 28, "seg_id": 3, "translation": { "en": "On 10th August 2010 in the vicinity of G/F, No. 42B Sha Tin Wai Village (“the residence”), police found the Applicant (Chan Ka-shing) and a 15-year-old boy Wong Wing-tat (“WONG”). The Applicant opened an iron gate with a key and then entered the residence whereas WONG waited outside the door. One minute later, the Applicant appeared and handed a brown plastic bag to WONG and said a few words to him. WONG left right afterwards.", "zh-HK": "2010年8月10日，警員在沙田圍村42B號地下(“該居所”)附近發現申請人(陳嘉成)和一個15歲男童黃永達(“黃”)。申請人用鑰匙開啟鐵閘後進入該居所而黃則在門外等候。一分鐘後申請人出現，將一棕色膠袋交給黃並向他說了幾句話後，黃隨即離去。" } }, { "doc_id": 28, "seg_id": 4, "translation": { "en": "Later, the Applicant and WONG were intercepted by the police. Police officer searched the Applicant and found 10 packets of cocaine with 155.91 grammes of powder inside containing 112 grammes of cocaine. The Applicant indicated that he helped someone to hand (them) to someone. Police officer also found 11 packets with 172.33 grammes of powder inside containing 117.27 grammes of cocaine from a room in the residence rented by the Applicant. The Applicant indicated again that he helped someone to carry the cocaine.", "zh-HK": "其後申請人和黃都被警員截查。警員在申請人身上搜獲10小包可卡因，內有155.91克粉末，含112克可卡因。申請人表示“幫人手帶去交俾人”。警員亦在該居所內申請人租用的房間發現11個小包，內有172.33克粉末，含117.27克可卡因，申請人再表示是幫人帶可卡因。" } }, { "doc_id": 28, "seg_id": 5, "translation": { "en": "The police officer also searched the brown plastic bag WONG held in his hand and found 10 packets with 156.54 grammes of powder inside containing 111.04 grammes of cocaine, and 12 boxes of soda powder.", "zh-HK": "警員亦在黃手上的棕色膠袋內搜獲10小包內有156.54克粉末，含111.04克可卡因，另有12盒蘇打粉。" } }, { "doc_id": 28, "seg_id": 6, "translation": { "en": "The street value of all of the above cocaine was about HK$500,000. The Applicant admitted that he followed the instruction of a person called “Lo Ng” (transliteration) and got a bag with cocaine inside and $1,000 as reward from someone at the Star Ferry and took the bag with cocaine inside to the residence. Later upon Lo Ng’s further instruction, he met WONG and handed 10 pellets of cocaine and a few boxes of soda powder to WONG.", "zh-HK": "上述全部可卡因零售價約為50萬港元，申請人承認他是按一名叫老伍的人指示在天星小輪從一名人取得一個裝有可卡因的袋及1,000元報酬，並將裝有可卡因的袋帶回該居所。其後申請人再按老伍的指示和黃會面並將10粒可卡因和數盒蘇打粉交了給黃。" } }, { "doc_id": 28, "seg_id": 7, "translation": { "en": "In relation to the above incident, the Applicant was charged with 3 counts of “Trafficking in a dangerous drug”. The dangerous drugs referred to in the 3 charges were namely, the 111.04 grammes of cocaine found on the person of WONG, the 112 grammes of cocaine found on the person of the Applicant and the 117.27 grammes of cocaine found in the residence. WONG was also charged with unlawful trafficking of the 111.04 grammes of cocaine found on him.", "zh-HK": "就上述事件，申請人被控三項販運危險藥物罪。三項控罪所指的危險藥物分別是在黃身上搜獲的111.04克可卡因﹑在申請人身上搜獲的112克可卡因和在該居所內搜獲的117.27克可卡因。黃亦被控非法販運其身上搜獲的111.04克可卡因。" } }, { "doc_id": 28, "seg_id": 8, "translation": { "en": "On 16th February 2011, the Applicant pleaded guilty to all the charges before Deputy High Court Judge Patrick Li. WONG also pleaded guilty to the charge against him. As a result, the Applicant was sentenced to a total of 12 years and 7 months’ imprisonment whereas WONG was sentenced to 6 years and 5 months’ imprisonment.", "zh-HK": "2011年2月16日，申請人在原訟法庭暫委法官李瀚良席前承認全部控罪。黃亦承認針對他的一項控罪。結果申請人共被判入獄12年7個月，黃則被判入獄6年5個月。" } }, { "doc_id": 28, "seg_id": 9, "translation": { "en": "The Applicant appeals against the sentences. He is now represented by Mr. Victor Cheung of Counsel to apply for leave to appeal against the sentences.", "zh-HK": "申請人不服判刑，現由張志輝大律師代表，要求獲准就判刑上訴。" } }, { "doc_id": 28, "seg_id": 10, "translation": { "en": "The applicant’s background", "zh-HK": "申請人的背景" } }, { "doc_id": 28, "seg_id": 11, "translation": { "en": "The Applicant was aged 18 at the time of offence and had turned 19 when being sentenced. He is single and has been educated up to Form 4. He had worked in fast food shop but was unemployed at the time of the offence. His father passed away many years ago and he lives with his elder brother, elder sister and mother. He did not have a criminal record. He indicated that he committed the offences due to financial difficulties and mixing with undesirable characters. He regrets the wrong doings.", "zh-HK": "申請人案發時18歲，判刑時19歲，未婚，受教育至中四。他曾在快餐店工作，但犯案時失業。申請人的父親早年過世，和一兄一姊及母親生活。申請人沒有犯罪記錄。申請人表示因經濟問題及誤交損友而犯案，而事後亦感後悔。" } }, { "doc_id": 28, "seg_id": 12, "translation": { "en": "The learned judge’s reasons for sentence", "zh-HK": "原審法官的判刑理由" } }, { "doc_id": 28, "seg_id": 13, "translation": { "en": "In relation to all 3 charges each involving around 110 odd grammes of cocaine, the learned judge took 9 years and 8 months’ imprisonment as the starting point. He reduced the sentence by 39 months for the Applicant’s guilty plea to 77 months’ imprisonment. However, as he was of the view that the Applicant did use WONG, a minor aged 15, in the commission of the 1st charge, so pursuant to section 56A(2) of the Dangerous Drugs Ordinance, he enhanced the sentence on the 1st charge by 50% to 115 months.", "zh-HK": "就三項涉及差不多都是110多克的可卡因，原審法官都以9年8個月為量刑基準，並因申請人認罪而減刑39個月至77個月。但原審法官認為申請人干犯第一項控罪時，有利用黃犯案，而黃只有15歲，屬未成年人，故根據《危險藥物條例》第56A(2)條，將第一項控罪的判刑加重50%至115個月。" } }, { "doc_id": 28, "seg_id": 14, "translation": { "en": "Based on the totality principle, the learned judge ordered that 18 months of the 2nd and 3rd charges to run consecutively to the 115 months of the 1st charge, thus arriving at 151 months, that is, 12 years and 7 months’ imprisonment.", "zh-HK": "原審法官基於整體判罰的原則將第二及第三項判刑中的18個月和第一項控罪的115個月刑期分期執行而達至151個月，即12年7個月的判刑。" } }, { "doc_id": 28, "seg_id": 15, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 28, "seg_id": 16, "translation": { "en": "Mr. Cheung advanced a number of grounds of appeal. He pointed out that although the Prosecution did indicate in the pre-trial review hearing on 18th January 2011 that they were considering applying for enhancement of sentence, it was not until 9th February 2011 that they informed the Defence of the formal application for enhancement, that is, 7 days before the trial date.", "zh-HK": "張大律師提出多點上訴理由。他指出雖然控方在2011年1月18日的預審聆訊有表示考慮申請加刑，但控方只在2011年2月9日，即開審前7天，才知會辯方正式加刑的申請。" } }, { "doc_id": 28, "seg_id": 17, "translation": { "en": "Mr. Cheung alleged that the Prosecution had caused delay on that issue, thus leading to unfairness to the Applicant. Therefore, the Court should not have accepted the Prosecution’s application for enhancement.", "zh-HK": "張大律師指控方在該議題上有延誤，對申請人不公平，故法庭不應接受控方的加刑申請。" } }, { "doc_id": 28, "seg_id": 18, "translation": { "en": "Mr. Cheung also argued that in fact, section 56A(2) of the Dangerous Drugs Ordinance was not applicable to the present case. The reason being that the Applicant did not “use” WONG in the commission of the offence but only followed the instruction of the mastermind and handed the drugs to WONG.", "zh-HK": "張大律師亦指《危險藥物條例》第56A(2)條根本對本案不適用，原因是申請人沒有“利用”黃犯案，而他只是聽從主腦的吩咐，將毒品交給黃。" } }, { "doc_id": 28, "seg_id": 19, "translation": { "en": "In any event, Mr. Cheung argued emphatically that the 50% enhancement was too high. He pointed out that before passing the sentences, the learned judge had indicated that ‘the percentage of enhancement would be reduced’ in view of the background of the case.", "zh-HK": "無論如何，張大律師力稱50%之加刑幅度過高。他指出原審法官判刑前曾表示過案件的背景會“減輕加刑的百分比”。" } }, { "doc_id": 28, "seg_id": 20, "translation": { "en": "Mr. Cheung also pointed out that the final sentence of 12 years and 7 months’ imprisonment was manifestly excessive in view of the Applicant’s background.", "zh-HK": "張大律師亦指以申請人的背景，最終的12年7個月判刑屬明顯過重。" } }, { "doc_id": 28, "seg_id": 21, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 28, "seg_id": 22, "translation": { "en": "Section 56A of the Dangerous Drug Ordinance specifies that:", "zh-HK": "《危險藥物條例》第56A條列明：" } }, { "doc_id": 28, "seg_id": 23, "translation": { "en": "“(2) Information which may be furnished to a court under this subsection is any information which proves that the commission of the relevant specified offence involved a minor and, without limiting the generality of the foregoing, the information may relate to any of the following-", "zh-HK": "“(2)根據本款可向法庭提供的資料，是證明未成年人牽涉於有關的指明罪行內的資料；在不限制前文的一般性的原則下，該等資料可關乎任何以下情況─" } }, { "doc_id": 28, "seg_id": 24, "translation": { "en": "the procuring, supplying or trafficking by whatever means of a dangerous drug for or to a minor for possession or otherwise by a person;", "zh-HK": "任何人不論藉任何方法為未成年人獲取或向未成年人供應或販運危險藥物，以供未成年人管有或作其他處理；" } }, { "doc_id": 28, "seg_id": 25, "translation": { "en": "a person obtaining by whatever means a dangerous drug from a minor;", "zh-HK": "任何人不論藉任何方法從未成年人處獲得危險藥物；" } }, { "doc_id": 28, "seg_id": 26, "translation": { "en": "provision by a person to a minor of any pipe, equipment or apparatus fit and intended for the smoking, inhalation, ingestion or injection of a dangerous drug;", "zh-HK": "任何人向未成年人提供任何適合於和擬用作吸食、吸服、服食或注射危險藥物的管筒、設備或器具；" } }, { "doc_id": 28, "seg_id": 27, "translation": { "en": "a person intentionally or unintentionally employing, hiring, using, persuading, enticing, or coercing a minor in the commission of a specified offence or the avoidance of detection or apprehension of such an offence;", "zh-HK": "任何人在犯任何指明罪行時，或在避免因該罪行而引起的偵查或拘捕中，蓄意或非蓄意地僱用、僱請、利用、勸說、慫恿或威迫未成年人；" } }, { "doc_id": 28, "seg_id": 28, "translation": { "en": "use of a minor in assisting the operation or management of premises which are used as a divan or for unlawful trafficking, manufacturing, or storage of a dangerous drug.”", "zh-HK": "利用未成年人協助營運或管理用作煙窟或非法販運、製造或貯存危險藥物的處所。”" } }, { "doc_id": 28, "seg_id": 29, "translation": { "en": "According to the above sections 56A(2)(a) and (d), the procuring, supplying or trafficking of a dangerous drug for or to a minor for possession or otherwise by a person; or a person intentionally or unintentionally employing, hiring, using, persuading, enticing, or coercing a minor in the commission of a specified offence or the avoidance of detection or apprehension of such an offence is each a factor of enhancing the sentence.", "zh-HK": "根據上述的第56A(2)(a)及(d)條，任何人為未成年人獲取或向未成年人供應或販運危險藥物，以供未成年人管有或作其他處理；或在犯指明罪行時，或在避免因該罪行而引起的偵查或拘捕中，蓄意或非蓄意地僱用、僱請、利用、勸說、慫恿或威迫未成年人，都是構成加重刑罰的因素。" } }, { "doc_id": 28, "seg_id": 30, "translation": { "en": "Undisputed evidence revealed that the Applicant handed the 111.04 grammes of cocaine to WONG. His act not only constituted the offence of trafficking in a dangerous drug but also caused WONG to be convicted on the same offence.", "zh-HK": "無爭議的證據顯示，申請人將111.04克可卡因交給黃。申請人的行為不但構成販運危險藥物罪，亦導致黃遭裁定相同罪名成立。" } }, { "doc_id": 28, "seg_id": 31, "translation": { "en": "The Applicant’s act obviously amounted to supplying a dangerous drug to a minor for possession or otherwise, which also amounted to using a minor in the commission of Trafficking in a dangerous drug.", "zh-HK": "申請人的行為明顯構成向未成年人供應危險藥物，以供未成年人管有或作其他處理，亦構成利用未成年人犯販運危險藥物罪。" } }, { "doc_id": 28, "seg_id": 32, "translation": { "en": "This Court takes the view that there was basis on which the learned judge enhanced the sentence imposed on the Applicant on the 1st charge.", "zh-HK": "本庭認為原審法官是有基礎就第一項控罪加重申請人的刑罰。" } }, { "doc_id": 28, "seg_id": 33, "translation": { "en": "The relevant section does not specify when the Prosecution has to inform the Defence of the application for enhancement. The Prosecution indicated on 18th January 2011 that they would consider making the application, and also formally informed the Defence of the relevant application 7 days before the trial date. This Court does not think that the Prosecution did cause any delay, nor unfairness to the Applicant. The reason is that the Defence could prepare their argument against the application for enhancement within 7 days, including collecting relevant information. This Court takes the view that the argument put forward by Mr. Cheung that the learned judge was not entitled to, or should not have enhanced the sentence, fails.", "zh-HK": "有關條例並沒有列明控方須何時通知辯方會申請加刑。控方在2011年1月18日表示會考慮申請，亦在開審前7天正式通知辯方有關申請。本庭不認為控方的做法有延誤，對申請人亦沒有做成不公，原因是辯方能在7天內預備反對加刑申請的論據，包括搜集相關的資料。本庭認為張大律師提出的論據，指原審法官無權或不應加刑不成立。" } }, { "doc_id": 28, "seg_id": 34, "translation": { "en": "In his reasons for sentence, the learned judge commented on the enhancement as follows:", "zh-HK": "在其判刑理由，原審法官就加刑一事有以下評論：" } }, { "doc_id": 28, "seg_id": 35, "translation": { "en": "“I have considered HKSAR v Wong Kwok Hung (transliteration) (CACC225/2002), the Applicant in that case used a minor aged 17 in trafficking drugs in a disco. The Court of Appeal agreed to an enhancement of sentence by 50%. I allow the Prosecution’s application. However, having considered that (the Applicant) does not have a criminal record and that he may not be the mastermind, I accept that he might not know the age of (WONG), and did not intentionally use a minor in drug trafficking. Therefore, the sentence for the 1st charge will be enhanced by only 50%.”", "zh-HK": "“本席考慮過案例HKSAR v 黃國雄(譯音) (CACC225/2002)，該案的申請人利用一名17歲未成年人在的士高販賣毒品。上訴庭同意應加刑50%。本席接受控方的申請，不過考慮到(申請人)沒有犯罪記錄，他未必是主謀，本席接受他未必知道(黃)的年紀，並非蓄意利用未成年人販毒。所以就第一項控罪的刑期，只加刑百分之五十。”" } }, { "doc_id": 28, "seg_id": 36, "translation": { "en": "This Court is of the view that what the learned judge said before mentioning the 50% enhancement, reasonably understood, indicated that he was of the view that the appropriate enhancement should be not as high as 50%. He did not state clearly why he considered that a 50% enhancement of sentence was appropriate.", "zh-HK": "本庭認為，原審法官未提升加刑幅度50%之前的說話，以合理方式理解，顯示他認為適當的加刑幅度不應達50%。原審法官沒有表明為何他認為50%之加刑幅度適當。" } }, { "doc_id": 28, "seg_id": 37, "translation": { "en": "In Wong Kwok Hung (supra) a 27-year-old defendant instructed a minor aged 17 to assist him in the trafficking of a small quantity of drugs to a customer in a disco. The Court of Appeal took the view that the appropriate enhancement was 50%. However, this Court has to point out that in Wong Kwok Hung, the Court of Appeal only increased the sentence by 50% from 4 months’ to 6 months’ imprisonment.", "zh-HK": "上述黃國雄案涉及一名27歲的被告人。他指示一名17歲的未成年人士協助他販運少量毒品給一名在的士高的客人。上訴法庭認為適當的加刑幅度是50%。但本庭需指出在黃國雄案，上訴法庭只是將4個月的判刑加50%至6個月。" } }, { "doc_id": 28, "seg_id": 38, "translation": { "en": "When enhancing the sentence pursuant to section 56A(2) of the Dangerous Drug Ordinance, the court has to consider not only the percentage of the enhancement, but also the actual extent of enhancement. In HKSAR v Lam Kam Kwong [2002] 1 HKC 541, the defendant hired a minor aged 16 in the trafficking of 1477.33 grammes of heroin. The Court adopted a starting point of 24 years’ imprisonment, however, pursuant to section 56A(2) of the Dangerous Drug Ordinance, the sentence was increased by 2 years only.", "zh-HK": "根據《危險藥物條例》第56A(2)條加刑時，法庭不單要考慮加刑幅度的百分比，亦要考慮實質刑期的加幅。在HKSAR v Lam Kam Kwong [2002] 1 HKC 541案，被告人僱用一名16歲未成年人販運1477.33克海洛英，法庭採納24年的量刑基準，但根據《危險藥物條例》第56A(2)條只加刑2年。" } }, { "doc_id": 28, "seg_id": 39, "translation": { "en": "The 1st charge of this case involved 111.04 grammes of cocaine, and the learned judge adopted a basic starting point of 9 years and 8 months’ imprisonment. If the starting point was increased by 50%, the basic starting (point) arrived at would be 14 years and 6 months’ imprisonment.", "zh-HK": "本案第一項控罪涉及111.04克可卡因，原審法官採納的基本量刑基準為9年8個月，如將量刑基準增加50%，得出的基本量刑為14年6個月。" } }, { "doc_id": 28, "seg_id": 40, "translation": { "en": "In view of the background of this case where 111 grammes of cocaine was trafficked in and even though a minor was used, this Court takes the view that the starting point of 14 years and 6 months’ imprisonment is manifestly excessive.", "zh-HK": "本庭認為以本案背景而言，販運111克可卡因，即使涉及利用一名未成年人士，14年6個月的量刑基準屬明顯過高。" } }, { "doc_id": 28, "seg_id": 41, "translation": { "en": "This Court cannot ignore the fact that the Applicant was aged 18, yet to turn 19 at the time of the offences, and that the learned judge also accepted that he might not be the mastermind. The background of the case indicated that the mastermind was someone else, and that both the Applicant and WONG were used by the mastermind in drug trafficking activities. The Applicant was responsible for renting the residence and for storing the drugs.", "zh-HK": "本庭不能忽視，申請人犯案時亦只是18歲，不足19歲，而原審法官亦接納申請人未必是主謀。案件的背景顯示主謀另有其人，而申請人和黃都是受主謀利用，進行販運毒品活動。申請人的職責是租用該居所，儲存毒品。" } }, { "doc_id": 28, "seg_id": 42, "translation": { "en": "If a 50% enhancement was to be adopted in this case, then for other serious drug trafficking cases where an adult mastermind caused a minor to engage in drug trafficking activities by unlawful or extreme means, is the sentence to be enhanced by 100% or 150%, increasing the already draconian sentence dramatically to 30 years, 40 years or above?", "zh-HK": "如在本案採納50%的加刑幅度，則在其他嚴重販毒罪行涉及成年主謀以不法及極端手段使未成年人士從事販毒活動時，加刑幅度是否要增至100%或150%，將原本已屬嚴苛的判刑大幅度增加至30年﹑40年或以上。" } }, { "doc_id": 28, "seg_id": 43, "translation": { "en": "This Court thinks the answer to the question is clear: Drug trafficking is of course a very serious offence; no offender should get off lightly. Using a minor in drug trafficking is even more heinous. Any one would find the crime of drug trafficking abominable; however, when passing or enhancing the sentence, the court has still to exercise restraint to avoid increasing the sentence without limit, thus causing confusion and unfairness.", "zh-HK": "本庭認為問題的答案是明確的。販運毒品，當然是極為嚴重的罪行，犯案者都不應獲輕判。利用未成年人士販運毒品更屬罪加一等。任何人對販毒罪行都會感到深惡痛絕，但法庭在判刑及加刑時，仍須有所約束，避免判刑無限度地提升，造成混亂及不公。" } }, { "doc_id": 28, "seg_id": 44, "translation": { "en": "The Applicant pleaded guilty to 3 charges, but the drugs involved in the charges were from the same source. When passing sentence, the Court should have taken all the drugs involved in the 3 charges into consideration to pass a reasonable overall sentence.", "zh-HK": "申請人承認三項控罪，但控罪所涉的毒品，源自同一地方。法庭判刑時，應將三項控罪所涉的毒品一併考慮在內，作出合理的整體判刑。" } }, { "doc_id": 28, "seg_id": 45, "translation": { "en": "The total weight of cocaine involved in the 3 charges was 340.31 grammes.", "zh-HK": "三項控罪所涉及的可卡因總重量為340.31克。" } }, { "doc_id": 28, "seg_id": 46, "translation": { "en": "The starting point laid down in Lau Tak Ming [1990] 1 HKLR 370 is applicable to the trafficking of cocaine (See AG v Pedro Nel Rojas CAAR15/1993).", "zh-HK": "劉德明案[1990] 1 HKLR 370定下的量刑基準對販運可卡因適用(見AG v Pedro Nel Rojas CAAR15/1993案)。" } }, { "doc_id": 28, "seg_id": 47, "translation": { "en": "According to the starting point laid down in the above case, where the cocaine trafficked is between 200 grammes and 400 grammes, the starting point is 12 to 15 years’ imprisonment.", "zh-HK": "根據上述案件定下的量刑基準，販運200克至400克的可卡因，量刑基準為12-15年。" } }, { "doc_id": 28, "seg_id": 48, "translation": { "en": "The Applicant trafficked in a total weight of 340.31 grammes of cocaine. In view of the background of the case and the Applicant, the total starting point should be around 13 years’ imprisonment. That the Applicant supplied drugs to minor or used a minor in drug trafficking was a factor for enhancing the sentence to be imposed. However, this Court is of the view that increasing the total starting point by an extra 2 years, making it 15 years is sufficient to reflect the seriousness of the case.", "zh-HK": "申請人販運共重340.31克可卡因，以案件和申請人的背景而言，總量刑基準應約為13年。申請人供應毒品給未成年人士或利用未成年人士販運毒品的行為，構成加刑因素，但本庭認為額外2年將總量刑基準提升至15年已足夠反映案件的嚴重性。" } }, { "doc_id": 28, "seg_id": 49, "translation": { "en": "The Applicant pleaded guilty, the sentence should be reduced by one third, making it 10 years.", "zh-HK": "申請人認罪，其刑期理應扣減三分一至10年。" } }, { "doc_id": 28, "seg_id": 50, "translation": { "en": "This Court grants the Applicant leave to appeal against the sentences. Treating the application as the appeal, we allow his appeal and vary the sentences on the 3 charges against him as follows:", "zh-HK": "本庭批準申請人就判刑上訴，並視申請為正式上訴。本庭判其上訴得直並將他的三項罪行的判刑改判如下：" } }, { "doc_id": 28, "seg_id": 51, "translation": { "en": "On the 1st charge, he is sentenced to 93 months’ imprisonment.", "zh-HK": "第一項控罪判刑93個月" } }, { "doc_id": 28, "seg_id": 52, "translation": { "en": "On the 2nd charge, he is sentenced to 77 months’ imprisonment.", "zh-HK": "第二項控罪判刑77個月" } }, { "doc_id": 28, "seg_id": 53, "translation": { "en": "On the 3rd charge, he is sentenced to 77 months’ imprisonment.", "zh-HK": "第三項控罪判刑77個月" } }, { "doc_id": 28, "seg_id": 54, "translation": { "en": "This Court orders that 27 months of the 2nd charge is to run consecutively to the 93 months’ imprisonment of the 1st charge, the remainder of the terms of imprisonment are all to run concurrently with each other.", "zh-HK": "本庭下令第二項控罪中的27個月判刑和第一項控罪的93個月判刑分期執行，其餘刑期全部同期執行。" } }, { "doc_id": 28, "seg_id": 55, "translation": { "en": "The total sentence imposed on the Applicant is reduced from 12 years and 7 months’ imprisonment to 10 years’ imprisonment.", "zh-HK": "申請人的總判刑由12年7個月減至10年。" } }, { "doc_id": 28, "seg_id": 56, "translation": { "en": "Samantha Chiu, Acting Senior Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司署任高級檢控官招秉茵代表" } }, { "doc_id": 28, "seg_id": 57, "translation": { "en": "Victor Cheung, instructed by Lam Keith Lau & Chan and assigned by the Legal Aid Department, for the Applicant.", "zh-HK": "申請人：由法律援助署委派劉林陳律師行轉聘大律師張志輝代表。" } }, { "doc_id": 29, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 29, "seg_id": 2, "translation": { "en": "On 7 February 2003, the appellant was convicted before Deputy High Court Judge Derek Pang (as he then was) and a jury of two counts of Trafficking in a Dangerous Drug and was sentenced to 21 years’ imprisonment.", "zh-HK": "上訴人於2003年2月7日被高等法院暫委法官彭偉昌(當時官階)及陪審團裁定兩項「販運危險藥物」罪罪名成立及被判處21年監禁。" } }, { "doc_id": 29, "seg_id": 3, "translation": { "en": "On 20 February 2003, the appellant filed an application for leave to appeal against her conviction, but subsequently she abandoned the application. The High Court, based on her Notice of Abandonment, dismissed the application on 13 May 2004. Later, on 16 October 2006, the appellant applied to the Court of Appeal for an order that her Notice of Abandonment should be treated as a nullity.", "zh-HK": "上訴人於2003年2月20日提交一份針對定罪的上訴許可申請書，但之後放棄該申請。高等法院根據她的「放棄通知書」於2004年5月13日撤銷該申請。之後，上訴人於2006年10月16日向上訴法庭提出申請，要求法庭判令她的「放棄通知書」無效。" } }, { "doc_id": 29, "seg_id": 4, "translation": { "en": "On 27 May 2008, the Court of Appeal dismissed that application by reason that the grounds she put forward did not meet the requirements for obtaining the Court’s approval of such application, but advised her that she could apply to the Chief Executive in accordance with section 83P of the Criminal Procedure Ordinance for a direction that the Court was to re-open the appeal. The appellant did make such an application to the Chief Executive afterwards. The Chief Executive granted her application and directed the Court to re-open the appeal.", "zh-HK": "上訴法庭於2008年5月27日以她所提出的理據未能符合法庭批准有關申請的要求為由駁回該申請，但建議她可根據《刑事訴訟程序條例》第83P條向行政長官提出申請，要求他指令法庭重新審理該上訴。上訴人之後向行政長官提出有關申請。行政長官批准她的申請，並指令法庭重新審理該上訴。" } }, { "doc_id": 29, "seg_id": 5, "translation": { "en": "Facts", "zh-HK": "案情" } }, { "doc_id": 29, "seg_id": 6, "translation": { "en": "On 4 July 2002, the appellant was stopped and searched by Customs Officers when she entered the territory through the Lowu Checkpoint. The Customs Officers found in the backpack which the appellant was carrying on her back 972.08 grammes of a substance later confirmed to be the dangerous drug methamphetamine hydrochloride (commonly known as ‘ice’) (‘the first charge’). The Customs Officers further found inside the appellant’s underpants another packet, containing 19.57 grammes of a substance later confirmed to be the dangerous drug methamphetamine hydrochloride (‘the second charge’).", "zh-HK": "2002年7月4日，上訴人經羅湖口岸入境時被海關職員截停及搜查。關員在她背着的背囊內發現後証實為972.08克的甲基苯丙胺鹽酸鹽(俗稱「冰」)的危險藥物(‘第一項控罪’)。關員亦在上訴人的內褲內搜出另一包後來証實為19.57克的甲基苯丙胺鹽酸鹽的危險藥物(‘第二項控罪’)。" } }, { "doc_id": 29, "seg_id": 7, "translation": { "en": "The appellant now only appeals against the conviction in respect of the first charge. The ground she relies on relates to the direction given by Deputy Judge Derek Pang to the jury about the legal presumptions provided for in section 47(1) and (2) of the Dangerous Drugs Ordinance in relation to the dangerous drug found in her backpack. What Deputy Judge Derek Pang said was that if a bag containing dangerous drug was in the direct custody of the applicant [sic] at the time, then under the law she would be presumed to possess the dangerous drug in the bag. Deputy Judge Derek Pang also gave the following direction as to how the appellant could rebut this presumption:", "zh-HK": "上訴人現只就第一項控罪提出上訴，她所持的理由是關於彭法官就她的背囊內藏有毒品一事向陪審團作出有關《危險藥品條例》第47(1) 及 (2) 條所定的法律推定指引：彭法官說若果申請人當時是直接保管着一個載有毒品的袋，在法律上她就被推定為管有這個袋裏面的毒品的人。彭法官亦就上訴人如何推翻這個法律推定作出以下的指引:" } }, { "doc_id": 29, "seg_id": 8, "translation": { "en": "“The applicant [sic] has to persuade the jury that she did not know there was dangerous drug inside the backpack. She should be acquitted if she is able to disprove it. Otherwise, she was in possession of the dangerous drug brought from Shenzhen and should be convicted of the first charge.”", "zh-HK": "「申請人要說服陪審團她不知道背囊裏面有毒品。若果她反証成功就應該脫罪；相反，她就是管有有關的毒品。從深圳進口，所以第一項控罪是應該被判罪名成立的。" } }, { "doc_id": 29, "seg_id": 9, "translation": { "en": "As stated in the judgment dated 27 May 2008 given by this Court, in HKSAR v. Hung Chan Wa and another [2006] 9 HKCFAR, the Court of Final Appeal held that the legal presumptions laid down in that Ordinance infringed the presumption of innocence and the right to a fair trial to which a defendant to a criminal charge was entitled under the Basic Law and the Hong Kong Bill of Rights Ordinance. The Court of Final Appeal held that the burden imposed upon the appellant by the legal presumptions was only an “evidential burden” and not a “persuasive burden of proof”.", "zh-HK": "正如本庭的2008年5月27日判決書所說，終審法院在HKSAR v. Hung Chan Wa and another (熊陳華[譯音]及另一人) [2006] 9 HKCFAR 一案中裁定該條例的法律推定違反了《基本法》及《香港人權法案》賦予刑事控罪的被告人的無罪推定及可獲公平審訊的權利。終審法院認為上訴人就有關的法律推定所需要負上的責任只是「提証的責任」，而不是「需令人信服的舉証責任」。" } }, { "doc_id": 29, "seg_id": 10, "translation": { "en": "In our judgment, on the principles laid down in Hung Chan Wa, Deputy Judge Derek Pang’s direction, which imposed on the appellant a “persuasive burden of proof” rather than a mere “evidential burden”, rendered the appellant’s conviction on the first charge unsafe.", "zh-HK": "本庭認為根據彭法官的指引，上訴人所需負上的責任是「須令人信服的舉証責任」而不單止是「提証的責任」。在這情況下，根據熊陳華一案所定的原則，上訴人的第一項控罪的定罪基礎是不穩妥的。" } }, { "doc_id": 29, "seg_id": 11, "translation": { "en": "The relevant legal principle is that if it is held in a subsequent judgment that the Court’s understanding of the law in a previous case is incorrect, an appellant in that previous case who is affected by the subsequent judgment cannot successfully apply for leave to appeal out of time by relying only on that judgment. He must further prove that there are exceptional circumstances in the case before the Court will grant his application. However, when the Court of Appeal is dealing with a case referred to it by the Chief Executive, the case must be treated as an appeal to the Court of Appeal by the appellant and it is not necessary to consider whether there are exceptional circumstances in the case. This is because this condition is required only in the case of an application for appeal out of time. Similarly, the Court of Appeal does not need to bother about whether the previous judgment concerning the appellant was final or whether his previous abandonment of an appeal was a nullity (see HKSAR v. Fu Chiu Wa, CACC 452/2002).", "zh-HK": "有關的法律原則是若果後來的一項判決裁定法庭在之前的案件中對某項法律所持的意見有錯誤的話，那麼在先前案件被該項新裁決影響的上訴人是不可以僅以該判決而獲得法庭批准他進行逾期上訴的，他必須進一步証明案件存有特殊的情況才可獲得法庭的批准。但當上訴法庭審理由行政長官轉交的案件時，它必須視有關的案件為上訴人向上訴法庭提出的上訴，而無需考慮案件是否存有特殊情況，因為這要求只是適用於逾期上訴申請。同樣地，上訴法庭亦無須理會上訴人之前的判決是否具有終極性或他之前所放棄的上訴是否無法律效力等問題(見：香港特別行政區訴傅朝華(Fu Chiu Wa) CACC 452/2002)。" } }, { "doc_id": 29, "seg_id": 12, "translation": { "en": "Mr. Lai, Senior Public Prosecutor, acting for the respondent, indicated that he would not object to this appeal; we therefore allow the appeal and quash the conviction.", "zh-HK": "代表答辯人的高級檢控官黎嘉誼表示他不會反對這次上訴，故此本庭批准上訴及撤銷定罪。" } }, { "doc_id": 29, "seg_id": 13, "translation": { "en": "Application for retrial", "zh-HK": "重審申請" } }, { "doc_id": 29, "seg_id": 14, "translation": { "en": "Mr. Lai asked the Court to order a retrial, but Mr. Hung, counsel for the appellant, objected to a retrial.", "zh-HK": "黎律師要求法庭命令案件重審，但代表上訴人的孔慶碩大律師卻反對重審。" } }, { "doc_id": 29, "seg_id": 15, "translation": { "en": "Under section 83E of the Criminal Procedure Ordinance, if “the interests of justice so require”, the Court may order the case to be retried. In considering whether a retrial should be ordered, the Court must consider and balance a number of factors, some of which weigh in favour of a retrial and some weigh against it. The interests of justice are not confined to the interests of the prosecution or of the defendant, but include the interests of the public in Hong Kong that those persons who are guilty of serious crimes should be brought to justice and should not escape punishment merely because of a technical error by the judge in the conduct of the trial or his summing-up to the jury. The Court does not need to catalogue all the factors which should be taken into consideration (see: Ting James Henry v. HKSAR [2008] 4 HKLRD 850, approving the principles concerning a retrial expounded in Au Pui Kuen v. AG [1979] HKLR 16).", "zh-HK": "根據《刑事訴訟程序條例》第83E條，法庭為了「司法公正的有所需要」可以命令案件重審。法庭在考慮是否命令案件重審時必須考慮及衡量多項有關連的因素，當中某些因素是支持重審，而某些是不支持重審的。司法公正的需要並不是單單局限於檢控當局的利益或者被告人的利益，它亦包括香港公眾的利益：一名干犯嚴重罪行的人必須受到法律的制裁，而不會因為法官在審理案件或引導陪審團時犯上技術性錯誤就可以消遙法外。法庭是不需要臚列所有需要考慮的因素的(見: Ting James Henry v. HKSAR [2008] 4 HKLRD 850贊同Au Pui Kuen v. AG [1979] HKLR 16就重審原則的裁決)。" } }, { "doc_id": 29, "seg_id": 16, "translation": { "en": "Mr. Hung submitted that if a retrial was ordered, the counsel for the appellant would certainly advise the appellant that if she pleaded guilty at the retrial, she would be entitled to a ⅓ or a bit smaller discount of her sentence. According to HKSAR v. Chok King Foh CACC 351/2008, the starting point for 972.08 grammas of ice is about 19 years. Assuming that 19 years is the starting point, with a ⅓ discount, she has to serve a sentence of about 12½ years. From 4 July 2002 (when the appellant was arrested) up to the present, she has already served about 8 years. Furthermore, if the appellant is of good conduct in prison, she can have an early release from prison (i.e. ⅓ remission of sentence). In that case, the actual term of imprisonment which she is required to serve is around 8 years and 5 months. Mr. Hung contended that even if there was no retrial, the appellant would not be so lucky as to be able to avoid serving the sentence she was required to serve; and that a retrial would be a sheer waste of resources and money.", "zh-HK": "孔大律師指在重審時代表上訴人的律師必定會向上訴人說明，若她在重審時認罪，她會享有三分一或稍低的刑期扣減。根據香港特別行政區訴卓慶和 CACC 351/2008，972.08克的「冰」的量刑基準是約19年。以19年為量刑起點，在扣減三分一後，她需要服刑約12年半。上訴人在2002年7月4日被拘捕後至今已經服滿了約8年的刑期。另外，如果上訴人在獄中行為良好的話，她會獲得提早釋放(即三分一刑期寬免)，那麼她所需服的實際刑期約為8年5個月。孔大律師認為就算沒有重審，上訴人亦不會僥倖地不需服滿所有刑期，重審只會勞民傷財。" } }, { "doc_id": 29, "seg_id": 17, "translation": { "en": "We are of the view that a defendant who pleads guilty only at a retrial is not likely to have a ⅓ discount of his sentence. Depending on the facts of a particular use, the Court generally will give a 20 % to 25% discount. If the appellant is given a 25% discount of her sentence, then even assuming that at the retrial the Court uses 19 years as the appropriate starting point, she still has to be imprisoned for about 14 years.", "zh-HK": "本庭認為就算在重審時法庭以19年為適當的量刑基準，但一名在重審時才認罪的被告人往往是不會獲得三分之一的量刑期扣減的。法庭會視乎案情，在一般情況下都會給予20% 至25% 的刑期扣減。若上訴人獲得25% 的刑期扣減，她仍需服刑約14年。" } }, { "doc_id": 29, "seg_id": 18, "translation": { "en": "We think that the Court should not consider the factor that the appellant may have an early release because she is given remission for her good conduct. The reason is that the appellant’s conduct may not be good when she is serving her sentence, and therefore may not be able to have an early release. Even if she pleads guilty at the retrial and is sentenced to 14 years’ or 12½ year’s imprisonment, that term will still be considerably longer than the 8 years which she has already served.", "zh-HK": "本庭認為法庭是不應該考慮上訴人會因行為良好而獲得提早釋放的寬免刑期因素，因為上訴人未必在服刑時會行為良好，因而獲得提早釋放。就算她在重審時認罪，並獲法庭判處14年或者12年半監禁，但這個刑期與她現已服滿的8年刑期仍有一段距離。" } }, { "doc_id": 29, "seg_id": 19, "translation": { "en": "A serious crime was involved in this case. The appellant was found to have a substantial quantity of ice on her person. We allow the appeal only because the judge did not give the jury a proper direction about the legal presumptions. After considering all the circumstances, we order that the case be retried.", "zh-HK": "本案是一宗嚴重的罪行。上訴人被發現身上藏有大量的「冰」毒，本庭批准上訴的原因只是因為法官沒有給予陪審團正確的法律推定指引。本庭在考慮過所有的情況後命令案件需要重審。" } }, { "doc_id": 29, "seg_id": 20, "translation": { "en": "Mr. Ned Lai, Senior Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官黎嘉誼代表。" } }, { "doc_id": 29, "seg_id": 21, "translation": { "en": "Mr. Andy Hung, instructed by Cheung & Yip, for the Appellant.", "zh-HK": "上訴人：由張達成葉褀智律師事務所轉聘孔慶碩大律師代表。" } }, { "doc_id": 30, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving reasons for judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 30, "seg_id": 2, "translation": { "en": "The applicant was charged with two counts of “trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134 of the Laws of Hong Kong). She was convicted after trial before Deputy Judge Pang and a jury and was sentenced to 21 years’ imprisonment.", "zh-HK": "申請人被控兩項「販運危險藥物」罪名，違反《危險藥物條例》（香港法例第 134 章）第 4(1)(a) 及 (3) 條。經高等法院暫委法官彭偉昌及陪審團審理後，申請人被裁定罪名成立及判監 21 年。" } }, { "doc_id": 30, "seg_id": 3, "translation": { "en": "On 20 February 2003, the applicant filed an application for leave to appeal against conviction. However, on 13 May 2004 she filed a notice of abandonment dated 12 May 2004, and her application for leave to appeal was accordingly dismissed by the court on 13 May 2004.", "zh-HK": "申請人於 2003 年 2 月 20 日提交了一份針對定罪的上訴許可申請書，但卻於 2004 年 5 月 13 日就該申請存檔一份日期為 2004 年 5 月 12 日的放棄通知書。法庭根據有關放棄通知書於 2004 年 5 月 13 日撤銷申請人的上訴許可申請。" } }, { "doc_id": 30, "seg_id": 4, "translation": { "en": "The applicant filed an affidavit with this Court on 16 October 2006, requesting this Court to order that her notice of abandonment was a nullity.", "zh-HK": "申請人於 2006 年 10 月 16 日向本庭提交了一份誓章，要求本庭判令她的放棄通知書無效。" } }, { "doc_id": 30, "seg_id": 5, "translation": { "en": "Legal principles", "zh-HK": "法律原則" } }, { "doc_id": 30, "seg_id": 6, "translation": { "en": "In HKSAR v Luo Shui Ji [2007] 3 HKLRD 114, this Court explained the legal principles governing the issue of treating a notice of abandonment as a nullity as follows:", "zh-HK": "本庭在香港特別行政區訴羅水基 [2007] 3 HKLRD 114 一案中就如何視放棄通知書為無效的法律原則作出以下的闡釋：" } }, { "doc_id": 30, "seg_id": 7, "translation": { "en": "The right of appeal is conferred by statute. Once an applicant abandons an appeal, which is then dismissed, the Court of Appeal does not have any inherent jurisdiction to entertain the reopening of the appeal unless the act of the abandonment is treated as a nullity or the matter is referred to the Chief Executive pursuant to section 83P of the Criminal Procedure Ordinance. The court will treat an applicant’s act of abandoning an appeal as a nullity where, and only where, the act of abandonment was not the result of the applicant’s deliberate and informed decision, in other words, the applicant’s mind did not go with his act of abandonment.", "zh-HK": "上訴權是由法規賦予的。申請人一旦放棄上訴，以致上訴被撤銷，除非該放棄行為被視作無效、或是該事按《刑事訴訟程序條例》第 83P 條給轉交行政長官，否則上訴法庭並沒有固有司法管轄權重新處理上訴。法庭只可以在以下的情況才會視申請人放棄上訴的行為是無效的：申請人不是在知情的情況下刻意決定作出該放棄行為，即申請人的意願跟該放棄行為互不相稱。" } }, { "doc_id": 30, "seg_id": 8, "translation": { "en": "Whether an applicant’s act of abandonment will be regarded as a nullity depends on whether he understood the effect or consequences of the document he was signing or whether he misapprehended the consequences of persisting with an appeal. If the erroneous advice relied upon by the applicant relates to the nature or effect of the act of abandonment, the notice of abandonment will be regarded as a nullity. If the applicant, properly informed and with knowledge of the nature and effect of the document he was about to sign, consciously signed the document, then it will be extremely difficult for him to show that the act of abandonment is a nullity.", "zh-HK": "申請人放棄上訴的行為可否被視作無效是關乎申請人對於他所簽署的文件的效用或後果是否了解，或者對於他假若堅持上訴的結果是否有所誤解。如果申請人所依賴的錯誤意見，與該放棄行為的性質或效果有關，則該放棄通知書會被視作無效。若申請人在恰當了解有關情況下，知道他所簽署的是甚麼文件，亦知道他所簽署的文件的效用，而他在這種知情的情況下，刻意簽署該文件，那他要證明該放棄行為為無效將會非常困難。" } }, { "doc_id": 30, "seg_id": 9, "translation": { "en": "Grounds for application", "zh-HK": "申請理由" } }, { "doc_id": 30, "seg_id": 10, "translation": { "en": "In her affidavit of 16 October 2006, the applicant set out the reasons for filing the notice of abandonment:", "zh-HK": "申請人在 2006 年 10 月 16 日的誓章中解釋她提交放棄通知書的原因：" } }, { "doc_id": 30, "seg_id": 11, "translation": { "en": "It was through the Correctional Services Department that I filed a notice on 12 May 2004 to abandon my application for leave to appeal against conviction. As my applications for legal aid [from the Legal Aid Department] and free legal assistance from the Bar Association were both rejected and I had no means to retain a private lawyer to assist me in the appeal, and the court refused to grant leave for extension of time to pursue the appeal, I had no alternative but to abandon the appeal.", "zh-HK": "「本人於 2004 年 5 月 12 日透過懲教署申請放棄上訴不服定罪，基於有關之法律援助申請已被拒絕而我向大律師公會申請法津義助服務亦被拒絕而我亦沒有經濟能力聘請私人律師協助案件上訴而法庭亦拒絕給予案件上訴延期，唯有放棄。」" } }, { "doc_id": 30, "seg_id": 12, "translation": { "en": "In another written submission dated 11 May 2008, the applicant further explained why she abandoned the application for leave to appeal:", "zh-HK": "申請人在另外一份 2008 年 5 月11 日的書面陳詞中再解釋她當時放棄上訴許可申請的原因：" } }, { "doc_id": 30, "seg_id": 13, "translation": { "en": "In this regard, it is necessary for me to provide your Lordships with an explanation. At the time when I abandoned the application for appeal, I did misunderstand the consequences of abandoning the appeal. All along, I believed that the best course open to me was to withdraw the application for appeal. This was because I had repeatedly applied to the appellate judges for extensions of time as I had been unable to retain a lawyer to act for me, and the appellate judges had granted leave on a number of occasions. For this very reason, I felt deeply embarrassed and helpless every time I attended the court hearing. It was only when no further delay was possible that I decided to withdraw the application for appeal for the time being in order not to continue to hold up the Court of Appeal, and I would lodge an appeal again only when I was fully prepared for it.", "zh-HK": "「就此我必需要向各法官閣下作出解釋。當年我在放棄上訴申請之時，的確對放棄上訴之後果有所誤解。我一直以為當年我取消上訴申請是最好的做法。原因當年我一直未能聘請代表上庭一事，我已曾多次向上訴庭法官作出延期請求，上訴庭法官亦給予過我多次的批準。正因如此，每次當我到庭時，都深感非常尷尬及無奈，直到實在不能再延期的情況底下，我才決定先將上訴申請取消，以免一直阻延上訴庭審理案件的時間，直至待我就一切上訴事宜作好準備時，才再次提出上訴。" } }, { "doc_id": 30, "seg_id": 14, "translation": { "en": "When I decided to withdraw the application for appeal for the time being, I genuinely thought that each case would, as a matter of course, offer one chance to appeal and one chance to appeal to the Court of Final Appeal. I was therefore under the misconception that my right to appeal was preserved even though I abandoned the appeal for the time being. It is exactly because of such belief that I have never stopped preparing for my appeal even though I have withdrawn the [application for] appeal.", "zh-HK": "當時在我決定先將上訴申請取消時，我真的以為每一件案件都必有一次上訴機會，和一次上訴終審法院的權利。因此我才誤以為，即使我先行放棄上訴，但同時亦是我保留上訴權利。正因我有此信念，所以我從來未有因為我已取消了上訴，而停止過繼續為我的上訴作準備。」" } }, { "doc_id": 30, "seg_id": 15, "translation": { "en": "In our judgment, the applicant has failed to put forward sufficient grounds to prove that her act of abandoning the application for appeal was a nullity. In fact, on 13 April 2004 the applicant wrote to the court with the following question:", "zh-HK": "本庭認為申請人並未能提供充份的理據來証明她放棄上訴申請是一項無法律效力的行動。其實，申請人在 2004 年 4 月 13 日曾致函法庭提出以下的問出題：" } }, { "doc_id": 30, "seg_id": 16, "translation": { "en": "On the day of the appeal, if I apply again for legal aid but the application is rejected, can I immediately apply to the judge of the Court of Appeal for withdrawal of the appeal? If the application for withdrawal is granted, will I have the right in future to apply again for appeal out of time?", "zh-HK": "「如果我在上訴當日向法院再次提出申請法律援助但遭到拒絕的話，本人是否可以即時向上訴庭法官申請即時取消上訴呢？假若上訴獲批準取消，它日我又有否權利再次申請過期上訴呢？」" } }, { "doc_id": 30, "seg_id": 17, "translation": { "en": "At the hearing on 28 April 2004, this Court explained to the applicant that if she withdrew the application for leave to appeal, she would not be able to make the same application again. On the same day, this Court adjourned her application for leave to appeal against conviction in order to allow her to seek legal assistance. Only after that did the applicant file the notice of abandonment.", "zh-HK": "本庭已在 2004 年 4 月 28 日的聆訊向申請人解釋，若果她取消有關的上訴許可申請，她是不可以再次提出有關的申請的。在同日本庭將申請人針對定罪的上訴許可申請押後，讓她尋求法律協助。申請人之後才存檔了有關的放棄通知書。" } }, { "doc_id": 30, "seg_id": 18, "translation": { "en": "New ruling", "zh-HK": "新裁決" } }, { "doc_id": 30, "seg_id": 19, "translation": { "en": "The real reason behind the applicant’s present application is that she intends to rely, as a ground of appeal, on a new judicial decision which came into being subsequent to the trial of the present case.", "zh-HK": "申請人現時提出申請的真正原因是本案在審結後出現了一個新裁決，而申請人希望依賴這個裁決來作為她的上訴理由。" } }, { "doc_id": 30, "seg_id": 20, "translation": { "en": "Facts of the present case", "zh-HK": "本案的案情" } }, { "doc_id": 30, "seg_id": 21, "translation": { "en": "On 14 July 2002, the applicant was intercepted by Customs Officers while entering the territory via Lowu Check Point. The Customs Officers found dangerous drugs in the backpack which the applicant was carrying (the first charge); upon search, another packet of dangerous drugs was found inside the applicant’s underpants (the second charge).", "zh-HK": "2002年 7 月 14 日申請人經羅湖口岸入境時被海關職員截停，關員發現申請人背着的背囊內藏有毒品（第一項控罪），關員亦在申請人的內褲裏搜出另一包毒品（第二項控罪）。" } }, { "doc_id": 30, "seg_id": 22, "translation": { "en": "Legal presumptions", "zh-HK": "法律推定" } }, { "doc_id": 30, "seg_id": 23, "translation": { "en": "In directing the jury on the legal presumptions in relation to the dangerous drugs inside the applicant’s backpack, Judge Pang said if the applicant was in direct custody of a bag containing dangerous drugs at the time, she would be presumed to possess the dangerous drugs in the bag. Judge Pang also gave the following direction as to how the applicant could rebut this presumption:", "zh-HK": "彭法官就在申請人的背囊內的毒品向陪審團作出法律推定的指引。彭法官說若果申請人當時是直接保管着一個載有毒品的袋，她就會被法律推定為管有這個袋裏面的毒品的人。彭法官亦就申請人如何推翻這個法律推定作出了以下的指引：" } }, { "doc_id": 30, "seg_id": 24, "translation": { "en": "The applicant has to persuade the jury that she did not know there were dangerous drugs inside the backpack. She should be acquitted if she is able to disprove it; otherwise, she was in possession of the dangerous drugs brought from Shenzhen and should be convicted of the first charge.", "zh-HK": "「申請人要說服陪審團她不知道背囊裏面有毒品。若果她反証成功就應該脫罪；相反，她就是管有有關的毒品。從深圳進口，所以第一項控罪是應該被判罪名成立的。」" } }, { "doc_id": 30, "seg_id": 25, "translation": { "en": "In HKSAR v. Hung Chan Wa and another (2006) 9 HKCFAR 614, the Court of Final Appeal held that the relevant rule infringed the presumption of innocence and the right to a fair trial to which a defendant to a criminal case was entitled by virtue of the Basic Law and the Hong Kong Bill of Rights Ordinance.", "zh-HK": "終審法院在 HKSAR v. Hung Chan Wa and another （熊陳華[譯音] 及另一人）[2006] 9 HKCFAR 一案中裁定有關的法律推定違反了《基本法》及《香港人權法案》所賦予刑事控罪的被告人無罪推定及公平審訊的權利。" } }, { "doc_id": 30, "seg_id": 26, "translation": { "en": "On the principle laid down in Hung Chan Wa, Judge Pang’s directions, which imposed on the applicant a “persuasive burden of proof” rather than a mere “evidential burden”, might have rendered the applicant’s conviction on the first charge unsafe.", "zh-HK": "根據彭法官的指引，申請人是要負上「須令人信服的舉証責任」而不單止是「提証的責任」。在這情況下，根據熊陳華一案所定的原則，申請人的第一項控罪的定罪基礎可能是不穩妥的。" } }, { "doc_id": 30, "seg_id": 27, "translation": { "en": "Nevertheless, as the applicant has abandoned the application for leave to appeal, and we are unable to treat the application for abandonment as a nullity, the only avenue open to the applicant is to apply to the Chief Executive in accordance with section 83P of the Criminal Procedure Ordinance for a direction that the court is to re-open the appeal.", "zh-HK": "不過，由於申請人已經放棄了上訴許可申請，而本庭亦不能將有關的放棄申請書視為無法律效力的文件，故此申請人現時唯一可行的方法是根據《刑事訴訟程序條例》第 83P 條向行政長官提出申請，要求行政長官指令法庭重新處理上訴。" } }, { "doc_id": 30, "seg_id": 28, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 30, "seg_id": 29, "translation": { "en": "The application is dismissed.", "zh-HK": "本庭駁回有關的申請。" } }, { "doc_id": 30, "seg_id": 30, "translation": { "en": "Ms Lily Ho, Senior Government Counsel, for the Respondent.", "zh-HK": "答辯人：由律政司高級政府律師何眉語代表。" } }, { "doc_id": 30, "seg_id": 31, "translation": { "en": "The Applicant in person, present.", "zh-HK": "申請人：無律師代表，親自應訊。" } }, { "doc_id": 31, "seg_id": 1, "translation": { "en": "Hon Poon JA (giving the reasons for judgment of the Court):", "zh-HK": "高等法院上訴法庭法官潘兆初頒發判案理由書：" } }, { "doc_id": 31, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "前言" } }, { "doc_id": 31, "seg_id": 3, "translation": { "en": "A1. Conviction", "zh-HK": "A1.定罪" } }, { "doc_id": 31, "seg_id": 4, "translation": { "en": "The applicant was charged with two charges of dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance.", "zh-HK": "申請人被控兩項「處理已知道或相信代表從可公訴罪行的得益的財產」罪，違反《有組織及嚴重罪行條例》第25(1) 及(3) 條。" } }, { "doc_id": 31, "seg_id": 5, "translation": { "en": "The first charge particularized that the applicant, between the 14th day of September, 2010 and the 2nd of February 2012, both dates inclusive, in Hong Kong, knowing or having reasonable grounds to believe that property, namely, a total sum of €1,680,267.40 European currency, $77,169.33 United States currency and $69,381.99 Hong Kong currency in the account with The Hongkong and Shanghai Banking Corporation Limited(“HSBC”) in the name of China Mineral Offshore Holdings Limited(“China Mineral Offshore”) (“account 1”), in whole or in part directly or indirectly represented the proceeds of indictable offence, dealt with the said property.", "zh-HK": "控罪一的控罪詳情指申請人於2010年9月14日至2012年2月2日期間（包括首尾兩日）在香港，知道或有合理理由相信某項財產，即China Mineral Offshore Holdings Limited （\"China Mineral Offshore\"）名下香港上海匯豐銀行有限公司（\"匯豐\"）帳戶（\"帳戶一\"）的總額為1,680,267.40歐元、美金77,169.33元及港幣69,381.99元的款項，全部或部分、直接或間接代表從可公訴罪行的得益而仍處理該財產。" } }, { "doc_id": 31, "seg_id": 6, "translation": { "en": "The second charge particularized that the applicant, between the 24th day of November 2010 and the 4th day of October 2011, both dates inclusive, in Hong Kong, knowing or having reasonable grounds to believe that property, namely, a total sum of €1,042,796.16 European currency and $870,017.75 Hong Kong currency in the account with the Hongkong and Shanghai Banking Corporation Limited(‘account 2”) in the name of Asian Green Technology Holdings Limited (“Asian Green”), in whole or in part directly or indirectly represented the proceeds of indictable offence, dealt with the said property.", "zh-HK": "控罪二的控罪詳情指申請人於2010年11月24日至2011年10月4日期間（包括首尾兩日）在香港，知道或有合理理由相信某項財產，即Asian Green Technology Holdings Limited （\"Asian Green\"）名下匯豐帳戶（\"帳戶二\"）的總額為1,042,796.16歐元及港幣870,017.75元的款項，全部或部分、直接或間接代表從可公訴罪行的得益而仍處理該財產。" } }, { "doc_id": 31, "seg_id": 7, "translation": { "en": "The applicant pleaded not guilty to all the charges and stood trial before H. H. Judge Gary Lam (“the trial judge”).", "zh-HK": "申請人否認所有控罪，在區域法院法官林嘉欣（\"原審法官\"）席前受審。" } }, { "doc_id": 31, "seg_id": 8, "translation": { "en": "The trial judge found him guilty of both charges on 5 February 2014 and sentenced him to a total of 4 years and 6 months’ imprisonment on 21 February 2014.", "zh-HK": "2014年2月5日，原審法官裁定申請人兩項控罪都罪名成立。同年2月21日，原審法官判申請人總刑期共4年6個月的監禁。" } }, { "doc_id": 31, "seg_id": 9, "translation": { "en": "A2.Abandonment of appeal", "zh-HK": "A2. 放棄上訴" } }, { "doc_id": 31, "seg_id": 10, "translation": { "en": "The applicant applied for leave to appeal against the two convictions by filing Form XI on 3 March 2014. On 14 April, the Court informed him of the arrangement of setting the matter down for hearing and directed him to file grounds of appeal and written submissions within 7 days. He did not do as directed. The Court later set the matter down for hearing for 10 July 2014.", "zh-HK": "2014年3月3日，申請人提交表格XI，就其兩項定罪申請上訴許可。4月14日，法庭通知申請人有關排期聆訊的安排及要求申請人在七天內呈交上訴理據及書面陳詞，申請人卻沒有按法庭的指示行事。之後，法庭把案件排期在2014年7月10日聆訊。" } }, { "doc_id": 31, "seg_id": 11, "translation": { "en": "The applicant filled in a “Prisoner’s Statement” on 30 May 2014:", "zh-HK": "2014年5月30日，申請人填寫「犯人陳述書」：" } }, { "doc_id": 31, "seg_id": 12, "translation": { "en": "“I am determined to cancel the application to appeal against conviction in respect of DCCC 721/2013. I understand that once the appeal is cancelled, I cannot under general circumstances apply to appeal against the convictions in this case again.”", "zh-HK": "“我堅決為案件編號DCCC 721/2013申請取消上訴不服定罪，我明白取消上訴後，在一般情況下我是不能夠再次為此案申請有關上訴不服定罪。”" } }, { "doc_id": 31, "seg_id": 13, "translation": { "en": "On 3 June 2014, the applicant signed and submitted to the Court a Notice of Abandonment of Appeal to abandon his application for leave to appeal against conviction. The Prisoner’s Statement was attached to the Notice of Abandonment of Appeal. On 4 June, the Court informed the applicant that his application for leave to appeal was dismissed as he had abandoned it.", "zh-HK": "2014年6月3日，申請人簽署並向法庭呈交「放棄上訴通知書」，放棄其定罪上訴許可申請；「放棄上訴通知書」附帶了「犯人陳述書」。6月4日，法庭通知申請人其上訴許可申請已因他放棄上訴而被撤銷。" } }, { "doc_id": 31, "seg_id": 14, "translation": { "en": "A3.Two applications", "zh-HK": "A3.兩項申請" } }, { "doc_id": 31, "seg_id": 15, "translation": { "en": "On 10 November 2014, the Court of Final Appeal handed down its judgment on HKSAR and Pang Hung Fai.", "zh-HK": "2014年11月10日，終審法院頒下香港特別行政區訴彭洪輝的判詞。" } }, { "doc_id": 31, "seg_id": 16, "translation": { "en": "On 29 September 2015, the applicant applied to court to ask the Court of Appeal to treat his Notice of Abandonment of Appeal as a nullity and to restore his application for leave to appeal (“application to treat the abandonment as a nullity”). He filed an affirmation by Chiu Bo Kwong (transliteration) (“Mr Chiu”), a fellow prisoner, to support his application.", "zh-HK": "2015年9月29日，申請人向法庭提出申請，並存檔他自己曾和他一起服刑的囚友趙保光（\"趙先生\"）的誓章作支持，要求上訴法庭視其「上訴許可通知書」為無效（nullity）及重啟他的上訴許可申請（\"「將放棄上訴視作無效的申請」\"）。" } }, { "doc_id": 31, "seg_id": 17, "translation": { "en": "The applicant said in his affirmation that when he initially lodged the appeal, he was not legally represented. He was misled by Mr Chiu into believing that an application to appeal would jeopardize his chance of getting parole, and only gave up the appeal as he also had used up all his savings on the trial. The wording used in the Prisoner’s Statement was taught to him by Correctional Services Officers when they arranged him to sign the Notice of Abandonment of Appeal. He had not sought legal advice, and was under the impression that even if the Notice of Abandonment of Appeal had been filed, he could still restore the appeal in future as long as there was ground to do so. The abandonment would not lead to the permanent loss of the chance to appeal. Mr Chiu also made an affirmation to confirm that on a day in March 2014, he told the applicant that if he insisted on applying for appeal, his chances of getting parole from the Release under Supervision Board would be jeopardizied.", "zh-HK": "申請人在其誓章中稱，他當初提出上訴時並沒有聘請律師，被趙先生所誤導，以為申請上訴一事會影響其得到假釋的機會，並因積蓄在原審時幾已耗盡，故此才放棄上訴；｢犯人陳述書｣的用詞是懲教署人員安排他簽署「放棄上訴通知書」時所教的；他沒有諮詢法律意見，亦以為即使存檔「放棄上述通知書」，只要日後有理據仍可重啟上訴，不至於永久喪失上訴機會。趙先生亦作出了一份誓章，確認他曾於2014年3月某天告訴申請人，如果他堅持上訴會影響向他釋囚委員會申請假釋的機會。" } }, { "doc_id": 31, "seg_id": 18, "translation": { "en": "The applicant learned of the Court of Final Appeal’s decision on HKSAR v Pang Hung Fai after he had abandoned the appeal. After seeking legal advice, he felt that there was strong ground to appeal against the convictions in the present case. He therefore made an “application to treat the abandonment as a nullity” and attached the “preliminary grounds of appeal against conviction” drafted by his counsel, Mr Wong Man Kit, SC and the transcript of the trial proceedings to the affirmation. Mr Wong advanced a total of eleven grounds of appeal with ground one being the most important one, namely, the trial judge did not apply the legal principle laid down by the Court of Final Appeal in HKSAR v Pang Hung Fai and therefore erred in finding that the applicant had reasonable ground to believe that the properties in charge one and charge two was “black money”.", "zh-HK": "申請人在放棄上訴後，得悉終審法院案件香港特別行政區訴彭洪輝的判決，並在諮詢法律意見後，認為本案有強力的不服定罪上訴理據，於是作出｢將放棄上訴通知視作無效的申請｣，他並於誓章內附上代表他的資深大律師黃敏杰所草擬的「初步不服定罪上訴理由書」及原審聆訊謄本。黃資深大律師提出共十一個上訴理由，最主要的上訴理由是「理據一」，即原審法官沒有應用終審法院在香港特別行政區訴彭洪輝一案中所定下的法律原則，因而錯誤地裁定申請人有合理理由相信控罪一及控罪二的款項是「黑錢」。" } }, { "doc_id": 31, "seg_id": 19, "translation": { "en": "The applicant considered that it was not fair to him if he was unable to appeal again, and said that if the Court of Appeal found that the Notice of Abandonment of Appeal was still valid and rejected his application to treat the abandonment as a nullity, he would apply to ask the Court of Appeal to advise the Chief Executive to refer the present case to the Court of Appeal to deal with pursuant to section 83P (“section 83P”) of the Criminal Procedure Ordinance (“the section 83P application”).", "zh-HK": "申請人認為如果他再不能上訴對他是不公平的，又說即使上訴法庭裁定「放棄上訴通知書」仍然有效，而拒絕「將放棄上訴視作無效的申請」，他會申請要求上訴法庭能夠忠告行政長官根據《刑事訴訟程序條例》第83P條 （\"第83P條\"） 將本案轉交上訴法庭處理（\"「第83P條的申請」\"）。" } }, { "doc_id": 31, "seg_id": 20, "translation": { "en": "A4.Application refused", "zh-HK": "A4.申請拒絕" } }, { "doc_id": 31, "seg_id": 21, "translation": { "en": "On 22 January 2016, after hearing the matter, we rejected the application to treat the abandonment as a nullity and the section 83P application. We now give reasons for the decision.", "zh-HK": "2016年1月22日，本庭經聆訊後，拒絕｢將放棄上訴視作無效的申請｣及「第83P條的申請」。本庭現頒下判案理由書。" } }, { "doc_id": 31, "seg_id": 22, "translation": { "en": "B.The trial", "zh-HK": "B. 審訊" } }, { "doc_id": 31, "seg_id": 23, "translation": { "en": "B1.Facts of the case", "zh-HK": "B1.案情" } }, { "doc_id": 31, "seg_id": 24, "translation": { "en": "The two companies involved in the case were set up in 2010. They opened the accounts involved in the case with The Hong Kong and Shanghai Banking Corporation Limited on 14 September and 24 November respectively. Their shareholder was an Irishman by the name John Hegarty (“Hegarty”). The only director of these two companies was a company called LB Corporation Services Ltd (“LBCS”) solely owned by the applicant. LBCS had once been also the company secretary of Asian Green. The applicant was the sole signatory of the bank accounts of the two companies involved in the case. He was also the sole owner of Scripo Limited (“Scripo”), a BVI company and A&C Business Consultant Ltd (“A&C”), and was the sole signatory of the bank accounts of the companies. The accounts involved in the case had a number of deposits and withdrawals made with the bank account of Scripo, and A&C had been the company secretary of the two companies involved in the case. The applicant transferred on 31 July 2010 the shares he solely owned in A&C to his elder sister. She and her mother were to become the directors of the company.", "zh-HK": "涉案的兩間公司成立於2010年，並分別於同年9月14日及11月24日在匯豐開設涉案賬戶。它們的股東是一位名為John Hegarty（\"Hegarty\"）的愛爾蘭人士。這兩家公司的唯一董事是申請人全權擁有的公司LB Corporation Services Ltd（「LBCS」），而LBCS曾兼任Asian Green的公司秘書。申請人是兩家涉案公司銀行賬戶唯一簽署人的，他也全權擁有BVI公司Scripo Limited（\"Scripo\"），以及A&C Business Consultants Ltd（\"A&C\"），並且是公司銀行賬戶的唯一簽署人。涉案賬戶有多項進出是與Scripo的銀行賬戶往來，而A&C曾為涉案兩家公司的公司秘書。申請人於2010年7月31日將自己全權擁有的A&C的股份轉給姊姊，由她與母親就任董事。" } }, { "doc_id": 31, "seg_id": 25, "translation": { "en": "The evidence given by two of the prosecution witnesses showed that they were deceived abroad. From February to May 2011, they wired a total of €1,238,616.88 and €36,135.78 to account 1 and account 2 respectively to purchase the shares of China Mineral Offshore and Asian Green.", "zh-HK": "控方兩位證人的證供顯示，他們於海外遭受詐騙，於2011年2月至5月期間，分別將總額為1,238,616.88歐羅及36,135.78歐羅的款項匯到賬戶一及賬戶二，以購買China Mineral Offshore及Asian Green的股份。" } }, { "doc_id": 31, "seg_id": 26, "translation": { "en": "Record showed that there were deposits in the total amounts of €1,680,267.40, US$77,169.33 and HK$69,381.99 made into account 1 from the time it was opened to the time it was closed. When that account was closed on 2 February 2012, its balance was $0. The transaction record included: 5 withdrawals made from that account by the applicant for a total amount of €13,000,000 in cash and transfer in the sum of €85,000 to the account of Transworld Management Limited etc. From the time account 2 was opened to the time it was closed, deposits in the total amount of €1,042,796.16, US$71,359.69 and HK$870,017.75 had been made to it. Its closing balance on 4 October 2011 was $0. Transaction record included: several large sums were withdrawn from it for transfer to the account of Transworld Management Limited etc. A number of large sums were also paid in and out of the bank account of Scripo from the two accounts in question. Transfer made to Scripo totalled almost HK$5 million and the total amount transferred back from Scripo to the accounts involved in the case was over HK$3.4 million", "zh-HK": "紀錄顯示，賬戶一由開設至結束，共有總金額為1,680,267.40歐羅、77,169.33美元、及69,381.99港元的款項存入；該賬戶於2012年2月2日結束時結餘為 $0；交易紀錄包括：申請人從該賬戶提款五次共13,000,000歐羅的現金及轉賬金額85,000歐羅至Transworld Management Limited的賬戶等。賬戶二於由開設至結束，共有總金額為1,042,796.16歐羅、71,359.69美元、及870,017.75港元的款項存入；該賬戶於2011年10月4日結束時結餘為 $0；交易紀錄包括：轉賬數筆大額款項至Transworld Management Limited的賬戶等。兩個涉案賬戶亦有多筆大額款項進出Scripo的銀行賬戶，轉賬至Scripo的款項總值港幣近五百萬元，而Scripo轉回涉案賬戶的款項則為總值港幣三百四十多萬元。" } }, { "doc_id": 31, "seg_id": 27, "translation": { "en": "The applicant had no dispute regarding the transaction records of the accounts involved in the case and the Scripo account and the fact that the two prosecution witnesses were deceived into making deposits. The dispute was whether the applicant knew that there was property in the accounts known or believed to represent the proceeds of indictable offence, ie, “black money”.", "zh-HK": "申請人對於涉案賬戶及Scripo的賬戶的交易紀錄及兩位控方證人被詐騙存入款項的情況並無爭議。爭議點是，申請人是否得悉涉案賬戶的款項中有已知道或相信為代表從可公訴罪行的得益的財產即「黑錢」。" } }, { "doc_id": 31, "seg_id": 28, "translation": { "en": "As regards the records showing the movements of funds the company accounts involved in the case and those controlled by the applicant (Scripo o, LBCS and A&C) had with his personal account/s and the exchanges of currencies etc, the prosecution argued that judging by the pattern of the movements of the funds, including the large-sum transactions taken place within short periods of time and the quick withdrawals of money deposited with substantial parts of it transferred to the company accounts the applicant controlled or to his personal account/s etc, they could prove that he had knowledge and was dealing with “black money”.", "zh-HK": "就涉案賬戶與其它由申請人所控制的公司賬戶（Scripo、LBCS 及A&C）與他個人賬戶的款項往來與貨幣轉換等紀錄，控方指出，其資金流動模式，包括短時間內有大額交易、資金存入不久被提取等，而且有相當部分的款項轉到了申請人所控制的公司或個人賬戶中，可以證明申請人知道並在處理「黑錢」。" } }, { "doc_id": 31, "seg_id": 29, "translation": { "en": "The applicant said that he worked in accounting since he obtained the degree in accounting in 1992, and he set up his own company in 1997. Later, in April 2010, he joined Lehman Brown CPA Company Limited (“Lehman Brown CPA”) as a partner at the invitation of an old acquaintance, Dickson Leung. The Beijing head office of Lehman Brown CPA was an accounting firm with over two hundred members of staff. The applicant was under the supervision of Dickson Leung, Russell Brown and Zhou Han etc in the Beijing head office. The applicant only became a registered accountant in 2013. At the time of the offence, the registered accountants of Lehman Brown CPA were Dickson Leung and the wife of the applicant.", "zh-HK": "申請人說，他從1992年取得會計學位後，就從事會計工作，於1997年成立自己的公司。其後，他於2010年4月應舊相識Dickson Leung的邀請加入 Lehman Brown CPA Company Limited（雷博會計師事務所有限公司）（\"Lehman Brown CPA\"）成為合夥人。Lehman Brown CPA在北京的總行是一家擁有超過二百名員工的會計師事務所，申請人受北京總行Dickson Leung、Russell Brown、Zhou Han等管轄。申請人於2013年才成為註冊會計師，案發時Lehman Brown CPA的註冊會計師是Dickson Leung及申請人的妻子。" } }, { "doc_id": 31, "seg_id": 30, "translation": { "en": "There is no dispute that the wife of the applicant became a 25% shareholder of Lehman Brown CPA on 1 October 2010. Lehman Brown CPA transferred some business of secretarial services companies to the applicant, and all the aforesaid companies, with the exception of Scripo, used the same registered business address. The applicant said LBCS was set up exactly for dealing with the business relating to Lehman Brown CPA, and Scripo was set up as a company to collect the marketing fee of LBCS.", "zh-HK": "不爭議的事實是，申請人的妻子於2010年10月1日成為了Lehman Brown CPA的25%股東；Lehman Brown CPA轉介了一些秘書公司服務的業務給申請人，而上述各公司除了Scripo外，都是使用同一個公司註冊營業地址。申請人稱他正是為了處理與Lehman Brown CPA相關的業務而成立了LBCS，並且成立Scripo作為收取LBCS銷售費用（marketing fee）的公司。" } }, { "doc_id": 31, "seg_id": 31, "translation": { "en": "The applicant recalled that he was introduced by a senior partner of the Beijing head office to a client by the name John Calipari (“Mr C”) in May 2010. Mr C instructed the applicant to set up a company and to open a bank account with Hegarty as the beneficial owner of the company. The applicant claimed that he had perused the information of the investment project and the documents on the trustee agreement between Mr C and Hegarty etc. As he had seen similar business model in other clients, he did not suspect anything. He believed that Mr C was a decent businessman and therefore opened the account involved in the case at his request. He later dealt with the deposits in the account according to the instructions Mr C gave. After the applicant had withdrawn cash from HSBC, he would usually hand the money over to Mr C direct in the bank to leave evidence under the supervision and monitoring of the HSBC.", "zh-HK": "申請人憶述，他於2010年5月得到北京總行的高級合夥人介紹一位名為John Calipari（\"C先生\"）的客戶，C先生指示申請人設立公司並開設銀行賬戶，以Hegarty為公司的實益擁有人。申請人稱他曾閱覽投資項目的資料、C先生與Hegarty之間的信託協議 (trustee agreement)等文件；因為曾見其它客戶有類似的經營模式(business model)，故此申請人沒有任何懷疑。他相信C先生是正當商人，故應其要求開立了涉案賬戶，及後依照對方發出的指示處理涉案賬戶裏的存款。申請人於滙豐提取現金後，一般會直接在銀行內把款項交給C先生，以便在滙豐的監控紀錄留下證據。" } }, { "doc_id": 31, "seg_id": 32, "translation": { "en": "On being asked if he had kept on file the documents Mr C gave him, the applicant explained that he was unable to photocopy the relevant documents due to the limitations of the venue/s of the meeting/s. He had asked Mr C for copies but was in the end not given them. The applicant agreed that he should keep copies. As regards what he knew about the source of the deposits, the applicant said he learned from Mr C that the money was paid in by investors for purchasing shares.", "zh-HK": "被問及有沒有將C先生提供的文件存檔時，申請人稱因為會面地點所限他未能影印相關文件；他曾向C先生索取副本但對方最終都沒有給他。申請人同意應留存一個副本。對於存款來源的認知，申請人稱他從C先生處得悉，資金是投資者存入用以購買股份的。" } }, { "doc_id": 31, "seg_id": 33, "translation": { "en": "As regards the question of the transfers he made from the accounts involved in the case to the bank accounts controlled by him, including those of Scripo and A&C, and the transfer back to the two accounts involved in the case part of the money from the aforesaid accounts, the applicant explained that it was because his personal cash flow was insufficient, so Mr C agreed to lend him the money of the two companies involved in the case to help with cash flow. The loans and repayments he made could be found in the transaction records. He agreed that only Hegarty was the beneficial owner of the money but he claimed that he had carefully read his trustee agreement which said that Mr C had full authority to make decisions. The applicant also claimed that he had given Mr C a winning soccer lottery ticket to repay part of the loan.", "zh-HK": "就申請人將涉案賬戶款項轉至其控制下的銀行賬戶，包括Scripo與A&C，亦有部分款項從該等賬戶往回轉賬至兩個涉案賬戶一事，申請人解釋這是因為他自己個人現金流量不足，所以C先生同意將兩家涉案公司的款項借予他周轉，而交易紀錄裏可見其借款與還款情況。他同意Hegarty才是資金的實益擁有人，但稱他曾細閱對方的信託協議，內容指C先生有全權作決定。申請人並稱他曾把中獎的足球彩票交予C先生償還部分借款。" } }, { "doc_id": 31, "seg_id": 34, "translation": { "en": "B2.The findings of the trial judge", "zh-HK": "B2.原審法官的裁決" } }, { "doc_id": 31, "seg_id": 35, "translation": { "en": "In the analysis of the trial judge, the applicant had been in the accounting business for a number of years. He also testified that he knew he must keep proper file on the relevant documents when providing his service and dealt with his own money and that of the clients separately. There was no dispute that the applicant had dealt with the money in the two accounts involved in the case, and the two companies did not have any actual business. Besides, their transaction records showed pattern of “money laundering”: huge sums of money were received within a short span of time and withdrawn in full shortly afterwards.", "zh-HK": "原審法官分析，申請人從事會計業務多年，亦供稱他知道提供服務時必須妥善地將相關文件存檔及把客戶的金錢與自己的分開處理。申請人處理了兩個涉案賬戶內的款項是並無爭議的事實，兩家涉案公司並沒有實際業務，而其賬戶交易紀錄顯示有「洗黑錢」模式：短期內接收大量存款，並在不久後全數被提取。" } }, { "doc_id": 31, "seg_id": 36, "translation": { "en": "he trial judge did not believe the applicant’s claims that he had read documents such as the trustee agreement and the investment projects and that he only carried out the instructions because he trusted Mr C. The trial judge took the view that for someone as experienced as the applicant, it was not possible that not one single copy was kept in the file. He pointed out that the applicant had even failed to carry out this most basic due diligence. He did not accept what he said regarding this and considered that for someone as experienced as the applicant, such degree of negligence was inconceivable.", "zh-HK": "原審法官不相信申請人的說他曾閱讀信託協議及投資項目等文件並且因為相信C先生才依照指示而行。原審法官認為以申請人的經驗，不會連一份副本都沒有存檔；原審法官指出這是連最基本的「盡職調查」（due diligence）而申請人都未能做到。原審法官不接納此說法，認為以申請人的經驗不可能如此疏忽。" } }, { "doc_id": 31, "seg_id": 37, "translation": { "en": "The trial judge pointed out that the applicant had emailed Mr C telling him that the bank was concerned with “money laundering” activities and therefore knew that the business of the company and the source of the money were very important. On top of that, with the applicant’s experience in the business, he should be clear about the risks that existed in dealing with the money in the accounts involved in the case, but he had never tried to find out the background of the clients and the content of the deposits. This was deliberately “turning a blind eye” to the source of the deposits in the relevant bank accounts. As regards the applicant’s claim that he relied on the vetting of HSBC, the trial judge took the view that this was untenable, as HSBC was not aware of the affairs of Mr C and so could only vet the applicant who was the sole signatory of the account.", "zh-HK": "原審法官指出，申請人曾以電郵告知C先生銀行關注「洗黑錢」的活動，因此也知道公司業務及款項來源很重要；再加上申請人的業務經驗，他理應清楚處理涉案賬戶的款項存在的風險，卻從沒有嘗試去了解客戶背景和存款內容，這是刻意對相關銀行賬戶內存款的來源「不聞不問」(turning a blind eye) 。至於申請人聲稱他依賴滙豐的審核，原審法官認為是站不住腳的說法，因為滙豐並不知道C先生的事情，故只可能審核申請人（賬戶的唯一簽署人）。" } }, { "doc_id": 31, "seg_id": 38, "translation": { "en": "As regards the applicant’s claim that he did not know the source of the money and the background of the depositors, nor did he try to verify what Mr C said. The trial judge took the view that it was “fantasy tale” that the applicant did not only turn a blind eye to the pattern of the payments in and out of the accounts in question (frequent deposits were made which were then withdrawn within a few days), he also never suspected anything. All he said in explanation was because he trusted Mr C. He also blindly carried out his instructions, going so far as to make use of clients’ money to help with his own cash flow in breach of professional ethics. Besides, no written record whatsoever was kept whether it was a large amount transaction, a loan or a repayment to client.", "zh-HK": "就申請人稱並不知道款項來源及存款者的背景，也沒查證C先生所言是否屬實，原審法官認為，申請人對涉案賬戶頻密的存入款項和數天內提取的提存模式不聞不問也沒半點懷疑，只說他（申請人）相信C先生，盲目按指示行事，甚至違反專業操守動用客戶的資金作周轉；而且不論是大額的交收、借用及歸還客戶的款項都完全沒有任何文字紀錄，是「天方夜談」。" } }, { "doc_id": 31, "seg_id": 39, "translation": { "en": "In view of the above reasons, the trial judge found that at the time of the offence, the applicant absolutely had reasonable ground to believe that the money in the accounts in question came from source of an unlawful nature, and dealt with it with such knowledge. He therefore found the applicant guilty.", "zh-HK": "基於上述的理由，原審法官裁斷，申請人在案發時絕對有合理理由相信，涉案賬戶內的款項來源為非法性質，並在此認知下處理款項，所以裁定申請人罪名成立。" } }, { "doc_id": 31, "seg_id": 40, "translation": { "en": "C.“Application to treat the abandonment as a nullity”", "zh-HK": "C. 「將放棄上訴視作無效的申請」" } }, { "doc_id": 31, "seg_id": 41, "translation": { "en": "We will first discuss the “application to treat the abandonment as a nullity”.", "zh-HK": "本庭首先討論「將放棄上訴視作無效的申請」。" } }, { "doc_id": 31, "seg_id": 42, "translation": { "en": "C1.Legal principles", "zh-HK": "C1.法律原則" } }, { "doc_id": 31, "seg_id": 43, "translation": { "en": "This Court discussed in detail the relevant local and English cases, as well as those of other common law jurisdictions, including R v Medway, R v Bridges in HKSAR and Lai Siu Cheung, before laying down the legal principles applicable to Hong Kong in respect of an application to treat the abandonment as a nullity. They can be summarized as follows:", "zh-HK": "在香港特別行政區訴黎兆祥，本庭詳細分析本地、英國和其他普通法司法管轄區的有關案例，包括R v Medway， R v Bridges，然後確立了適用於本港的將放棄上訴視作無效的法律原則。這些原則可撮要如下：" } }, { "doc_id": 31, "seg_id": 44, "translation": { "en": "(1)Once an appeal has been dismissed, the Court of Appeal is functus officio. It does not have inherent jurisdiction to hear an appeal that has been dismissed. To do so would require statutory authorization and for that none exists, save the power conferred by section 83P.", "zh-HK": "（一）當駁回上訴後，上訴法庭的職責便已完成（functus officio），上訴法庭並無固有司法管轄權（inherent jurisdiction）聆訊已遭駁回的上訴。上訴法庭要處理已被駁回的上訴，必須得到明文的條例授權方可；在這方面，惟一的條例是第83P條。" } }, { "doc_id": 31, "seg_id": 45, "translation": { "en": "(2)Therefore, the Court of Appeal no longer has the jurisdiction to deal with the appeal once it has been abandoned, and therefore dismissed.", "zh-HK": "（二）因此，上訴一旦因上訴人放棄上訴而被駁回，上訴法庭便再無司法管轄權處理該上訴。" } }, { "doc_id": 31, "seg_id": 46, "translation": { "en": "(3)If an applicant applies to the Court of Appeal to restore the hearing of his appeal that has been abandoned and therefore dismissed, he must prove that as a matter of law, his abandonment may properly be treated as if it had never occurred, that is his abandonment was in law a nullity. It is only then that leave may be granted to the application. This is the only situation where the Court of Appeal may restore the hearing of an appeal that has been dismissed due to abandonment.", "zh-HK": "（三）上訴人若申請要求上訴法庭重新聆訊因其放棄而遭駁回的上訴，他就必須證明在法律上，其上訴可視為從未被放棄；即其放棄上訴在法律上屬於無效，其申請才會得到批准。這是唯一的情況，上訴法庭可以重新聆訊因放棄上訴而被駁回的上訴。" } }, { "doc_id": 31, "seg_id": 47, "translation": { "en": "(4)The only test to establish that an appellant’s act of abandoning the appeal is a nullity is that the court must be satisfied that the abandonment was not the result of a deliberate and informed decision, in other words, the appellant’s mind did not go with the act of abandonment.", "zh-HK": "（四）確立上訴人放棄上訴的行為為無效的唯一準則是，上訴人不是在知情的情況下刻意決定放棄上訴，即上訴人的意願跟其放棄行為互不相稱。" } }, { "doc_id": 31, "seg_id": 48, "translation": { "en": "(5)Whether the abandonment may be treated as a nullity concerns the applicant’s understanding of the effect or consequences of the document he is signing or, perhaps, misapprehending the effect at law of an appeal were he to persist. An appellant who, properly informed, knows what the document is that he is signing and the effect of it and, with that knowledge, deliberately signs the Notice of Abandonment of Appeal, may not satisfy the court that his act of abandonment is a nullity.", "zh-HK": "（五）上訴人放棄上訴可否算為無效是關乎他是否了解他所簽署之放棄上訴通知書的效用或後果，或者對於他假若堅持上訴的法律結果是否有所誤解。若上訴人在恰當了解有關情況下，知道他所簽署的是什麼文件，亦知道他所簽署的文件的效用，而他在這種知情的情況下，刻意簽署放棄上訴通知書，其放棄行為便不會被視為無效。" } }, { "doc_id": 31, "seg_id": 49, "translation": { "en": "(6)If an applicant relies on the ground of having been given wrong advice to support his application:", "zh-HK": "（六）若上訴人依賴獲得的錯誤意見為理由，以支持其申請：" } }, { "doc_id": 31, "seg_id": 50, "translation": { "en": "(i)If the wrong advice he relied on goes to the nature or effect of the act of abandonment, then the Notice of Abandonment may be treated as a nullity.", "zh-HK": "（1）如果上訴人所依賴的錯誤意見，與該放棄行為的性質或效果有關，則該放棄通知書會被視作無效。" } }, { "doc_id": 31, "seg_id": 51, "translation": { "en": "(ii)If he signed the Notice of Abandonment of Appeal under the influence of the wrong legal advice he was given about the prospects of success on his appeal, the Court of Appeal may not treat the Notice as a nullity as it was wrong advice regarding the merits of the appeal which does not go to the signing of the Notice of Abandonment or its nature or effect.", "zh-HK": "（2）如果上訴人是受到在上訴勝算方面錯誤的法律意見的影響而簽署了放棄上訴通知書，上訴法庭不會視該通知書無效，因為這是關於上訴的是非曲直的錯誤意見，與簽署該放棄通知書或與其性質或效果無關。" } }, { "doc_id": 31, "seg_id": 52, "translation": { "en": "C2.Grounds and submissions of the applicant", "zh-HK": "C2.申請人的理由及陳詞" } }, { "doc_id": 31, "seg_id": 53, "translation": { "en": "32.The applicant said in his affirmation:", "zh-HK": "申請人在其誓章說：" } }, { "doc_id": 31, "seg_id": 54, "translation": { "en": "“4.Later, I met a prisoner who was serving his sentence while I was serving my sentence at Tong Fuk Correctional Institute. His name was Chiu Bo Kwong. When he learned that I was applying for leave to appeal against the convictions, he told me that if I applied for appeal, my chances of getting parole would be jeopardized. I understood that Mr Chiu was imprisoned for theft and was released on parole in February 2015 to stay at Phoenix House and regained liberty in August 2015.", "zh-HK": "“4.其後，我在塘福懲教所服刑期間認識了一名正在服刑的囚犯，他名叫趙保光先生。當他知道我正在申請不服定罪上訴，便向我透露如果我申請上訴的話，我的假釋機會將會受到影響。我了解趙保光先生是因盜竊罪入獄，並於2015年2月獲假釋入住豐力樓，2015年8月已重獲自由。" } }, { "doc_id": 31, "seg_id": 55, "translation": { "en": "5.As the chance to be released on parole was extremely important to me, and at that time, I firmly believed what Mr Chiu Bo Kwong said, that is, if I applied for appeal, my chances of getting parole would be jeopardized; besides, at that time I had spent almost all my savings on the trial, I therefore decided to abandon the appeal.", "zh-HK": "5.由於假釋的機會對本人而言極為重要，而本人當時亦深信趙保光先生所言，即倘若本人申請上訴的話，我假釋的機會將會受到影響；加上當時本人已花了差不多所有積蓄在原審上，我便因此決定放棄上訴。" } }, { "doc_id": 31, "seg_id": 56, "translation": { "en": "…", "zh-HK": "…" } }, { "doc_id": 31, "seg_id": 57, "translation": { "en": "9. …Although it was written on the Prisoner’s Statement that I understood that I could not under general circumstances apply to appeal against the convictions in this case again, I did not know at that time that once I abandoned the appeal, I would lose the chance to appeal for good. At that time, I thought if in future I hoped to appeal again, I could do so as long as I had the grounds to do so. The wording in this Prisoner’s Statement was taught to me by the Correctional Officers of the Tong Fuk Correctional Institute. At that time, I had not sought any legal advice.", "zh-HK": "9.….雖然犯人陳述書寫上我明白在一般情況下我是不能夠再次為此案申請有關不服定罪的上訴，但本人當時並不知道倘若我一旦放棄上訴，我將會永久喪失上訴機會。本人當時以為如果日後我希望再上訴，只要我有理據亦可以繼續上訴。此犯人陳述書上的用詞是由塘福懲教所懲教署人員教我填寫。我當時並沒有諮詢任何法律意見。" } }, { "doc_id": 31, "seg_id": 58, "translation": { "en": "…", "zh-HK": "…" } }, { "doc_id": 31, "seg_id": 59, "translation": { "en": "11.Later, I learned that a crucial judgment was made by the Court of Final Appeal in HKSAR and Pang Hung Fai (FACC8/2013). After seeking legal advice, I believed that I had strong grounds to appeal against the convictions entered in the trial. Besides, it was my intention to lodge an appeal last year; it was only abandoned as I was misled by Mr Chiu Bo Kwong into believing that applying for appeal would jeopardize my chance of getting parole. When I abandoned the appeal, I thought I could still appeal again in future as long as I had the grounds to do so, that’s why I wrote to the court, hoping that the appeal could be restored…”", "zh-HK": "11.後來本人得悉終審法院在香港特別行政區訴彭洪輝一案 (FACC 8/2013) 中有關鍵性的判決，在諮詢法律意見後，本人認為自己有強力理據就原審提出不服定罪的上訴，再加上本人去年是原本打算上訴的，只是因為被趙保光先生誤導以為上訴會影響我獲取假釋的機會，我才放棄上訴。當我放棄上訴時，我是以為日後只要我有理據是仍然可以再次上訴的，所以去信法庭希望可以重啟上訴。…”" } }, { "doc_id": 31, "seg_id": 60, "translation": { "en": "The applicant’s submissions can be summarized in three points:", "zh-HK": "申請人的說法可歸納為三點：" } }, { "doc_id": 31, "seg_id": 61, "translation": { "en": "(1)The applicant wrongly believed the advice Mr Chiu gave that “applying for appeal against conviction will jeopardize the chance of getting parole”. As a result, he abandoned the appeal.", "zh-HK": "（一）申請人誤信趙先生就“申請不服定罪上訴會影響假釋機會”的說法，因而放棄上訴；" } }, { "doc_id": 31, "seg_id": 62, "translation": { "en": "(2)When he abandoned the appeal, he thought that he could still appeal again in future as long as he had grounds to do so; and", "zh-HK": "（二）當申請人在放棄上訴時以為日後只要有理據便仍然可以再次上訴：及" } }, { "doc_id": 31, "seg_id": 63, "translation": { "en": "(3)He is now aware of the decision by the Court of Final Appeal in HKSAR and Pang Hung Fai and having sought legal advice, he feels that he has strong ground to appeal against the convictions.", "zh-HK": "（三）申請人現得悉終審法院在香港特別行政區訴彭洪輝的判決，在諮詢過法律意見後認為自己有強力理據就定罪提出上訴。" } }, { "doc_id": 31, "seg_id": 64, "translation": { "en": "Mr Wong, SC referred the Court to the English cases of R v Maxim Julian Bellos and R v Keating and urged upon us that the circumstances of the present case were identical to those in Keating: The applicant was likewise misled by other people (the counsel representing him) into thinking that lodging an appeal would bring about bad consequences and therefore filed a Notice of Abandonment under the misconception. His act of abandonment should be treated as a nullity.", "zh-HK": "黃資深大律師援引英國上訴法庭案例R v Maxim Julian Bellos及R v Keating一案，力陳本案的情況與Keating案完全相同：申請人同樣是被他人（代表他的大律師）誤導，以為上訴將會引致不良後果，在不了解情況下作出放棄通知，其放棄上訴行為應被視作無效。" } }, { "doc_id": 31, "seg_id": 65, "translation": { "en": "C3.Respondent’s submissions", "zh-HK": "C3. 答辯人的陳詞" } }, { "doc_id": 31, "seg_id": 66, "translation": { "en": "Mr William Tam, SC, Deputy Director of Public Prosecutions, acting for the Respondent argued that according to the legal principles established in the relevant cases, the focus of the test determining whether or not a Notice of Abandonment of Appeal might be treated as a nullity was whether or not the court was satisfied that the abandonment was not the result of a deliberate and informed decision, and whether or not the applicant did not understand the nature and effect of the Notice that he was signing. A deliberate decision made on the basis of wrong legal advice might not render the Notice to be nullified as it did not go to whether or not he was aware of the nature and effect of the document. Mr Tam, SC stressed that the Court of Appeal would not enquire if the grounds of appeal were strong before finding that the Notice of Abandonment should be treated as a nullity.", "zh-HK": "代表答辯人的副刑事檢控專員譚耀豪資深大律師稱，根據有關案例所確立的法律原則，能否將放棄上訴通知視作無效的測試準則的重點在於法庭是否信納申請人放棄上訴的決定並非知情和刻意作出，及是否不了解其簽署的通知書的性質和效力；而建基於錯誤的法律觀點而作出的刻意決定不能導致通知放棄無效，因為這與是否知悉文件的性質與效力無關。譚資深大律師強調，在裁定放棄通知無效之前，上訴法庭不會查究上訴理據是否有力。" } }, { "doc_id": 31, "seg_id": 67, "translation": { "en": "Mr Tam, SC argued that the fact that the applicant was misled by Mr Chiu into believing that “applying for appeal may jeopardize his chance of getting parole” had nothing to do with his understanding of the nature and effect of the Notice of Abandonment of Appeal. The was no discussion and analysis in Keating on the question of whether the applicant did it knowingly and deliberately, and at the time when the decision in Maxim Julian Bellos was given, the UK had already repealed the Criminal Appeal Act, Section 17, a section that carried effect similar to that of section 83P of the Ordinance. Different legal frameworks require consideration of different factors, and therefore no parallel can be drawn. These two English cases are not binding on the courts of Hong Kong either.", "zh-HK": "譚資深大律師力指，申請人因為趙先生而誤信「上訴會影響假釋機會」，與他知悉放棄上訴通知書的性質和效力的認知無關。Keating案的判詞並沒有討論和分析是否知情和刻意的問題；而Maxim Julian Bellos判決時英國已經廢除與該條例第83條P相約效力的Criminal Appeal Act, Section 17，法律架構不同導致要顧及的因素不同，故此不能借鏡，這兩個英國案例在香港亦沒有約束力。" } }, { "doc_id": 31, "seg_id": 68, "translation": { "en": "As regards the applicant’s submission that he learned about the decision in Pang Hung Fai after his appeal had been dismissed, Mr Tam, SC submitted that Lai Siu Cheung laid down the principle that the prospects of success was not the basis for considering whether or not the Notice of Abandonment should be treated as a nullity. And the fact that the applicant regretted the decision after learning about Pang Hung Fai and made an application to treat the abandonment as a nullity showed that he understood the nature and effect of the Notice. Besides, after the applicant had submitted the Notice of Abandonment on 3 June 2014, he waited until 29 September 2015 before he applied for treating the abandonment as a nullity. And according to Ooi Lim Khoon, the longer the delay, the more difficult it may be for the applicant to convince the court that he changed his mind not only because he had reconsidered the prospects of success of the appeal.", "zh-HK": "至於申請人稱他在上訴申請被駁回後得悉彭洪輝 案的判決一事，譚資深大律師方指出黎兆祥 案確立了勝算機會並非考慮放棄通知是否無效的基礎；而申請人得悉彭洪輝 案後後悔而作出將放棄上訴通知視作無效的申請，顯示申請人理解通知書的性質和效力。而且，申請人於2014年6 月3 日提交放棄通知書後，直至2015年9月29日才要求將之視作無效；而根據Ooi Lim Khoon案，延誤越長則申請人可能更難說服法庭他並不是只是重新考慮（上訴勝算）後改變了想法。" } }, { "doc_id": 31, "seg_id": 69, "translation": { "en": "Mr Tam, SC argued that the applicant was only trying to justify himself when he said: “when abandoning the appeal, (I) thought (I) could appeal again in future as long as (I) had the grounds to do so”. It was not convincing because it was clearly stated on the Notice of Abandonment of Appeal that the applicant gave up all further legal proceedings, and it was also written in the applicant’s statement: “(I) understand that after cancelling the appeal, under general circumstances…, (I) cannot not apply to appeal against the convictions in this case again.”", "zh-HK": "譚資深大律師認為申請人稱「在放棄上訴時以為日後只要有理據便仍然可以再次上訴」是自圓其說，不能令人信服。因為在「放棄上訴通知」上清楚書明申請人放棄一切進一步法律程序，而申請人的陳述書上亦寫着他「明白取消上訴後，在一般情況下，…是不能夠再次為此案申請有關上訴不服定罪。」" } }, { "doc_id": 31, "seg_id": 70, "translation": { "en": "C4.The views of this Court", "zh-HK": "C4. 本庭的意見" } }, { "doc_id": 31, "seg_id": 71, "translation": { "en": "As pointed out above, if the applicant gave up the appeal because he was misled by wrong advice that caused him to misunderstand the consequence of insisting on pursuing the appeal, although his act of signing the Notice of Abandonment of Appeal was deliberate, in the eyes of the law, he did not do it knowingly. When an appellant was misled by wrong advice into believing that his sentence may be affected if he insisted on pursuing the appeal, this principle is also applicable. The Court may treat the abandonment of the appeal as a nullity: see R v Johnson, the other Australian case referred to in R v Bridges; R v Keating and R v Maxim Julian Bellos. Therefore, we do not accept the submission of Mr Tam, SC in paragraph 36 above.", "zh-HK": "如上文指出，如上訴人放棄上訴是因為受到錯誤的意見誤導，以致他對堅持上訴的後果有所誤解時，雖然他簽署放棄上訴通知書是刻意的行為，但在法律上卻不是在知情之下作出的。當上訴人受到錯誤的意見誤導，以為堅持上訴會影響其刑期時，這個原則也適用，法庭可視其放棄上訴為無效：見R v Bridges 所引用的另一澳洲案例R v Johnson; R v Keating 及R v Maxim Julian Bellos。因此，本庭不接納譚資深大律師在上文第36段的陳詞。" } }, { "doc_id": 31, "seg_id": 72, "translation": { "en": "However, we are of the view that the applicant had failed to produce evidence to satisfy us that we should accept that he was misled by Mr Chiu into misunderstanding the consequence of insisting on pursuing the appeal when he signed the Notice of Abandonment of Appeal and that he did not abandon his appeal knowing exactly what he was doing.", "zh-HK": "可是，本庭認為申請人未能提出可信納的證據，來說服本庭接納當他簽署「放棄上訴通知書」時，受趙先生的誤導，以致他對堅持上訴的後果有所誤解，而不是在知情的情況下放棄其上訴。" } }, { "doc_id": 31, "seg_id": 73, "translation": { "en": "First, in R v Keating, it was understandable why the appellant accepted the advice of the counsel. But in the present case, Mr Chiu was only a fellow prisoner of the applicant. There is no evidence to show that he was a lawyer or legally-trained. It was neither reasonable nor credible that the applicant should deeply believe what he said.", "zh-HK": "首先，在R v Keating，上訴人接納代表他的大律師的意見是情有可原。但在本案中，趙先生只是申請人的囚友，沒有證據證明他是律師或受過法律專業訓練，申請人深信趙先生的說法既不合理，也不可信。" } }, { "doc_id": 31, "seg_id": 74, "translation": { "en": "Further, the applicant had not produced any evidence to prove that what Mr Chiu said was wrong at law. Mr Wong, SC cited Regulation 6 of the Prisoner (Release under Supervision) Regulations. The regulation provides that when considering an applicant’s case, the Board shall give effect to the matters mentioned in the First Schedule. However, the matters set out in the First Schedule do not necessarily support the claim that what Mr Chiu said was wrong. In our view, Mr Wong, SC has failed to convince us that what Mr Chiu said was wrong in law.", "zh-HK": "再者，申請人並沒有提出任何證據，證明趙先生的說法在法律上是錯誤的。黃資深大律師引援《囚犯（監管下釋放）規例》第6規例。該規例訂明，釋囚委員會考慮申請個案時，須按附表1所述的事項予以考慮，但附表1所列的事項卻不一定支持趙先生的說法是錯誤的。本庭認為，黃資深大律師未能說服本庭趙先生的說法在法律上是錯誤的。" } }, { "doc_id": 31, "seg_id": 75, "translation": { "en": "Lastly, the applicant was a professional accountant and a well-educated person. He understands Chinese and English. In his Prisoner’s Statement, he wrote: I am determined to cancel the application to appeal against conviction in respect of DCCC 721/2013. I understand that once the appeal is cancelled, I cannot under general circumstances apply to appeal against the convictions in this case again.” Directly above where the applicant’s signature appeared on the Notice of Abandonment of Appeal, it clearly stated: “I…now inform you, I abandon all further legal proceedings in respect of the appeal”. In our view, it was impossible for the applicant not to know that after he had signed the Notice of Abandonment of Appeal, he would no longer be able to appeal against conviction again. He claimed that it was his understanding at that time that after abandoning the appeal, he could still apply to appeal in future as long as he had grounds to do so. Clearly, it was after he became aware that the decision in Pang Hung Fai might be to his advantage and he hoped to appeal again that he used the excuses that he was misled by Mr Chiu, was taught the wording by the officers of Tong Fuk Correctional Institute when filling in the document, had not sought legal advice and thought that he could still appeal again in future as long as he had the grounds to do so etc. to explain why he indicated he knew what consequences there would be in the Prisoner’s Statement and the Notice of Abandonment of Appeal. As pointed out by the respondent, he was trying to justify himself. We do not accept this.", "zh-HK": "最後，申請人是專業會計師和有學識之人，懂中文和英文。他在「犯人陳述書」寫明：｢我堅決為案件編號DCCC 721/2013 申請取消上訴不服定罪，我明白取消上訴後，在一般情況下，我是不能夠再次為此案申請有關上訴不服定罪。｣在｢放棄上訴通知書｣申請人簽名的正上方明確寫著｢本人…現向你發出通知，本人放棄關於該上訴的一切進一步法律程序。｣本庭認為，申請人不可能不知道當他簽署｢放棄上訴通知書｣後，他便不能再次就定罪提出上訴。他說他當時的理解是在放棄上訴後，只要日後有理據仍可提出上訴，這明顯是他在得知彭洪輝案的判決可能對他有利，希望可以再次上訴，所以才指被趙先生誤導、沒有諮詢法律意見、｢犯人陳述書｣上的用詞是由塘福懲教所懲教署人員教他填寫，以及以為日後只要有理據便仍然可以再次上訴等等作為藉口，來解釋為何在「犯人陳述書」和「放棄上訴通知書」表示知道放棄上訴的後果。這正如答辯人所指，是自圓其說，本庭不予信納。" } }, { "doc_id": 31, "seg_id": 76, "translation": { "en": "As regards the applicant’s reliance on Pang Hung Fai, this is relevant to what prospects of success his appeal had. However, as pointed out above, the legal advice the applicant got regarding the prospects of success of the appeal when he abandoned the appeal is not a ground at all in considering whether his Notice of Abandonment of Appeal should be treated as a nullity, less so the legal advice he got after he had abandoned the appeal.", "zh-HK": "至於申請人依賴彭洪輝案這點，這與他上訴的勝算多少有關。可是，正如上文指出，當申請人在放棄上訴時所得到就上訴勝算機會的法律意見，根本不是考慮放棄上訴通知書是否無效的理由，更諻論在放棄上訴後所得到的法律意見。" } }, { "doc_id": 31, "seg_id": 77, "translation": { "en": "In view of the above reasons, we consider that the applicant has failed to prove that his Notice of Abandonment of Appeal was a nullity and we dismiss his application to treat the abandonment as a nullity.", "zh-HK": "基於上述理由，本庭認為，申請人未能證明其「放棄上訴通知書」無效，本庭拒絕「將放棄上訴視為無效的申請」。" } }, { "doc_id": 31, "seg_id": 78, "translation": { "en": "D.The section 83P application", "zh-HK": "D. 「第83P條的申請」" } }, { "doc_id": 31, "seg_id": 79, "translation": { "en": "We next deal with the section 83P application.", "zh-HK": "本庭繼而處理｢第83P條的申請｣。" } }, { "doc_id": 31, "seg_id": 80, "translation": { "en": "D1.The provision", "zh-HK": "D1. 條例的規定" } }, { "doc_id": 31, "seg_id": 81, "translation": { "en": "Section 83P of the Criminal Procedure Ordinance provides:", "zh-HK": "《刑事訴訟程序條例》第83P條規定：" } }, { "doc_id": 31, "seg_id": 82, "translation": { "en": "“(1)Where a person has been convicted on indictment…, the Chief Executive may, if he thinks fit, at any time either-", "zh-HK": "“（1）如某人循公訴程序被定罪…，行政長官如認為適合，可在任何時間 ─" } }, { "doc_id": 31, "seg_id": 83, "translation": { "en": "(a)refer the whole case to the Court of Appeal and the case shall then be treated for all purposes as an appeal to the Court of Appeal by that person; or", "zh-HK": "（a）將整宗案件轉交上訴法庭，而該案件就所有目的而言，須視作為該人向上訴法庭提出的上訴；或" } }, { "doc_id": 31, "seg_id": 84, "translation": { "en": "(b)if he desires the assistance of the Court of Appeal on any point arising in the case, refer that point to the Court of Appeal for its opinion thereon, and the Court of Appeal shall consider the point so referred and furnish the Chief Executive with its opinion thereon accordingly.", "zh-HK": "（b）如他意欲上訴法庭就案件中出現的任何論點給予協助，可將該論點轉交上訴法庭以取後其意見，而上訴法庭須考慮該如此轉交的論點，並須據此就該論點向行政長官提供意見。" } }, { "doc_id": 31, "seg_id": 85, "translation": { "en": "(2)A reference by the Chief Executive under this section may be made by him either on an application by the person referred to in subsection (1), or without any such application.", "zh-HK": "（2）行政長官根據本條作出的轉交，可應第(1)款所提述的人的申請而作出或在無該申請的情況下作出。" } }, { "doc_id": 31, "seg_id": 86, "translation": { "en": "(3)For the avoidance of doubt, it is hereby declared that this section also applies in a case where an appeal has been heard and determined by the Court of Final Appeal.”", "zh-HK": "（3）為免生疑問，特此宣布，本條亦適用於上訴已經由終審法院聆訊和裁的案件。”" } }, { "doc_id": 31, "seg_id": 87, "translation": { "en": "According to section 83P(2), a convicted person may make an application to the Chief Executive and the Chief Executive may also refer the matter to the Court of Appeal without any such application. Section 83P(1) gives the Chief Executive unfettered discretion to consider whether or not to refer a certain case to the Court of Appeal. Mr Tam, SC informed this Court, when the Chief Executive received a petition made under section 83P, he would refer the matter to the Department of Justice and the Legal Policy Division of the Department of Justice would take over the matter and compile a legal opinion report after consulting the Prosecutions Division for the consideration of the Chief Executive. Factors the Chief Executive would consider included the prospects of success of the appeal, whether there was any delay in the application and the finality of the case etc. Prospects of success of the appeal are not the only determining factor.", "zh-HK": "根據第83P(2)條，被定罪的人士可向行政長官作出有關申請，行政長官也可以在無該申請時，把案件轉交上訴法庭。第83P(1)條給予行政長官全面的酌情權 (unfettered discretion)，考慮是否將某宗案件轉交上訴法庭。譚資深大律師告訴本庭，當行政長官收到第83P條的呈請後，他會把個案轉文律政司，而律政司的法律政策科會接手，並會在諮詢檢控科的意見後，編寫法律意見書供行政長官考慮，而行政長官所考慮的包括上訴的勝算機會、申請有否遲誤、案件的終結性等因素，上訴的勝算機會並非惟一決定性的因素。" } }, { "doc_id": 31, "seg_id": 88, "translation": { "en": "If the Chief Executive refused to refer the matter to the Court of Appeal, the applicant may apply for judicial review against the decision: see R v Secretary of State of the Home Office Department, Ex p Hickey and Others (No 2).", "zh-HK": "若行政長官拒絕將案件轉交上訴法庭，申請者可以就其決定提出司法覆核：見R v Secretary of State of the Home Office Department, Ex p Hickey and Others (No 2) 。" } }, { "doc_id": 31, "seg_id": 89, "translation": { "en": "When the Chief Executive refers the matter to the Court of Appeal, it will treat the matter as having been granted leave to appeal and hear it accordingly: see R v Chart.", "zh-HK": "當行政長官將案件轉交上訴法庭時，上訴法庭會把案件當作已得到上訴許可批准來審理：見R v Chart。" } }, { "doc_id": 31, "seg_id": 90, "translation": { "en": "D2.The submissions of the applicant", "zh-HK": "D2.申請人的陳詞" } }, { "doc_id": 31, "seg_id": 91, "translation": { "en": "Mr Wong, SC referred us to R v Tam Kwok, R v Wong Wai Leung, and HKSAR v Lai Siu Cheung, and emphasized that the Court of Appeal had the power to consider if there was sufficient merit in the grounds of appeal before giving its advice and assistance to the Chief Executive to refer the matter to the Court of Appeal. Mr Wong, SC submitted the following grounds of appeal to assist the Court of Appeal to decide whether it should advise the Chief Executive:", "zh-HK": "黃資深大律師援引R v Tam Kwok, R v Wong Wai Leung,以及HKSAR v Lai Siu Cheung，並強調上訴法庭有權考慮上訴理據是否充足，而作出忠告及協助行政長官，將案件轉交上訴法庭。黃資深大律師提出下述的上訴理據，以方便上訴法庭考慮是否忠告行政長官：" } }, { "doc_id": 31, "seg_id": 92, "translation": { "en": "(1)The trial judge failed to use the correct test: Instead of asking ‘Whether anyone looking at the grounds that the applicant was aware of objectively would believe or should know that the property being dealt with was “black money”’, he used, by mistake, the concept of a common sense, right-thinking member of the community. In other words, he used the test of whether an average reasonable man would so believe (see Pang Hung Fai and HKSAR v Wing Kit and Ye Fang );", "zh-HK": "（一）原審法官沒有使用正確的測試準則：「任何人客觀地看 [申請人] 知道的理由是否會相信或應該知道被處理的財產是『黑錢』」，而錯誤地使用「常人」（a common sense, right-thinking member of the community）的概念即一般合理的人會否相信（參考彭洪輝 案及HKSAR v Wing Kit and Ye Fang）；" } }, { "doc_id": 31, "seg_id": 93, "translation": { "en": "(2)The trial judge made no finding on the beliefs, thoughts and intentions of the applicant regarding the property being dealt with and the people and matters relating to it, and the effect they had on whether or not the applicant reasonably believed that the property being dealt with was “black money” (see HKSAR v Yeung Ka Shing Carson and HKSAR and Yang Sigai);", "zh-HK": "（二）法官沒裁定申請人對被處理的財產及相關的人與事的信念、思維、意圖，及其對申請人是否合理相信被處理的財產為「黑錢」的影響（參考HKSAR v Yeung Ka Shing Carson及香港特別行政區 訴 楊思概 ）；" } }, { "doc_id": 31, "seg_id": 94, "translation": { "en": "(3)Charge one and charge two contained duplicitous charge for they prosecuted the applicants for the dealings he had on numerous dates over a period of time. The total amounts in the charges were the aggregates of the smaller amounts that were involved in a number of dealings (see HKSAR v Salim, Majed, Yeung Ka Shing Carson and Yang Sigai);", "zh-HK": "（三）控罪一及控罪二內含重複罪行（重覆控罪Duplicitous Charge），因其檢控的是在一段時間內多個日子的處理行為，由多項涉及金額較小的處理行為，累積而成控罪的總金額（參考HKSAR v Salim, Majed、Yeung Ka Shing Carson案及楊思概 案）；" } }, { "doc_id": 31, "seg_id": 95, "translation": { "en": "(4)The prosecution must prove that the property being dealt with was “black money”; and in the present case, the money that was proved to have been obtained by deception in charge one was only the over 1.2 million euros that Mr K deposited into the account, and the over 30000 euros that Mr H deposited into the account in charge two (see Oei Hengky Wiryo, Yeung Ka Shing Carson and Yang Sigai);", "zh-HK": "（四）控方必須證明被處理的財產是「黑錢」；而在本案中，被證明是詐騙所得的款項，控罪一中只有K先生存入的一百二十多萬歐羅，而控罪二中只有H先生存入的三萬多歐羅（參考Oei Hengky Wiryo案、Yeung Ka Shing Carson案及楊思概 案）；" } }, { "doc_id": 31, "seg_id": 96, "translation": { "en": "(5)According to Pang Hung Fai, the trial judge should consider from the perspective of the applicant the factor that the applicant had immense trust in Mr C. The trial judge failed to do so.", "zh-HK": "（五）原審法官沒有根據彭洪輝 案須從申請人的角度去考慮到申請人對C先生抱有很大信任的原因；" } }, { "doc_id": 31, "seg_id": 97, "translation": { "en": "(6)The trial judge failed to follow the principle laid down in Pang Hung Fai to consider that the applicant had informed the HSBC the business plan and situation of Mr C, and HSBC allowed the applicant to open the account in question which strengthened the trust the applicant had in Mr C. Besides, there had previously been other customers who requested for the same kind of service. This also reduced the suspicion that the applicant had.", "zh-HK": "（六）原審法官沒有根據彭洪輝 案的原則去考慮申請人曾將C先生的業務計劃及情況告知滙豐，而滙豐也批准申請人開涉案的賬戶；此舉增強申請人對C先生的信任。而且以前有其它客戶要求同類服務，亦減低了申請人的懷疑；" } }, { "doc_id": 31, "seg_id": 98, "translation": { "en": "(7)The prosecution had no evidence to prove that the applicant knew that Mr C was deceiving people into depositing money into account one and account two, and the failure to conduct due diligence was not the same as knowing that the money was obtained by deception;", "zh-HK": "（七）控方並沒有證據證明申請人知道C先生詐騙他人把款項存入賬戶一及賬戶二；而沒有做「盡職調查」不等同於知道款項是詐騙所得；" } }, { "doc_id": 31, "seg_id": 99, "translation": { "en": "(8)The trial judge and the prosecution agreed that the applicant had no duty to investigate the source and background of the deposits and the depositors, but found the applicant guilty of the charges on the basis that he did not conduct due diligence to find out about the background of the clients, the source of the deposits and the background of the depositors.", "zh-HK": "（八）原審法官與控方同意申請人沒有責任去調查存款及存款者的來源背景，卻基於申請人沒有做「盡職調查」去了解客戶的背景、存款來源及存款者的背景而裁定申請人罪名成立；" } }, { "doc_id": 31, "seg_id": 100, "translation": { "en": "(9)The trial judge rejected the evidence of the applicant that he had seen the business documents of Mr C; and", "zh-HK": "（九）原審法官拒絕接納申請人說有看過C先生的業務文件的證供；以及" } }, { "doc_id": 31, "seg_id": 101, "translation": { "en": "(10)It was wrong for the trial judge to say that the applicant turned a blind eye to the frequent deposits made to the accounts which were then withdrawn shortly. The applicant explained in his evidence that he understood that this matched the business mode of Mr C, and the holders of the accounts receiving the money looked like professional people and so he had no suspicion.", "zh-HK": "（十）原審法官稱申請人對涉案賬戶頻密的存入款項短期內被提出不聞不問是錯誤的。申請人在證供解釋，他理解這與C先生的業務方式脗合，而收款賬戶看似專業人士，故此才沒有懷疑。" } }, { "doc_id": 31, "seg_id": 102, "translation": { "en": "(11)On the basis of the above grounds, the convictions against the applicant in both the first and the second charges were obviously unsafe and unsatisfactory.", "zh-HK": "（十一）基於上述所有理據，控罪一及二的定罪都是非常明顯地不安全及不穩妥。" } }, { "doc_id": 31, "seg_id": 103, "translation": { "en": "The submissions of Mr Wong, SC mainly centred around ground one. He pointed out that according to the judgment the Court of Final Appeal made in HKSAR and Pang Hung Fai, the reasons that a court had to consider were not only the facts but also some of the relevant circumstances. It should consider the applicant’s beliefs, understanding and prejudices and not to omit these concepts based on those of a reasonable man from the considerations as viewed through the eyes of the applicant, and the correct test for “having reasonable grounds to believe” is “would anyone looking objectively at the reasons known to the defendant believe or should know that the property being dealt with represented the proceeds of an indictable offence”.", "zh-HK": "黃資深大律師的陳詞主要是環繞理據一。他指出依據香港特別行政區訴彭洪輝案中終審法庭的判詞，法庭要考慮的理由，不止是情況(facts)，還有一些相關的環境；考慮申請人的信念、理解和偏見，不能以常人的概念將這些應考慮的角度從申請人的概念移走；及「會令常人有理由相信」的正確測試準則是「任何人客觀地看被告知道的理由是否有會相信或應該知道被處理的財產為代表從可公訴罪行的得益」。" } }, { "doc_id": 31, "seg_id": 104, "translation": { "en": "Mr Wong, SC submitted that the trial judge did not follow the above principles, and it could be seen from footnotes 16-18 of the judgment of this case that he erred as below in his decision:", "zh-HK": "黃資深大律師指，原審法官沒有依照上述的原則，而從本案判詞的註腳16-18可見，其判決有如下錯誤：" } }, { "doc_id": 31, "seg_id": 105, "translation": { "en": "(1)The guilty verdict was based on the applicant turning a blind eye to the source of the deposits. Relied wrongly on the Court of Appeal cases of Wan Yet Kwai and Tam Lap Shek, the wrong test was used: the trial judge said as long as the applicant had reasonable ground to believe that he himself might be dealing with black money, even if there might exist other possibilities, he was still guilty. The “test of sufficiency” was also wrongly relied on;", "zh-HK": "（一）該有罪的判決基於申請人對存款來源不聞不問，錯誤依賴上訴法庭案件Wan Yet Kwai和Tam Lap Shek，使用了錯誤的測試準則：原審法官稱只要申請人有合理理由相信自己可能正在處理黑錢，即使有其它可能性存在，申請人依然有罪；亦錯誤依賴了「足夠證據測試準則」；" } }, { "doc_id": 31, "seg_id": 106, "translation": { "en": "(2)He never considered the matter through the eyes of the applicant with his beliefs, understanding and prejudices. Instead, he removed them with the concepts of “someone with common sense, a right-thinking reasonable person”;", "zh-HK": "（二）沒有從申請人的信念、理解和偏見的角度考慮，而將之以「一位具常識、持正當思維的合理人士」的概念移走；" } }, { "doc_id": 31, "seg_id": 107, "translation": { "en": "(3)Even if it was known that the money in question was improper, it did not mean that it must relate to an indictable offence and represented the proceeds of that offence. According to paragraph 112 of Pang Hung Fai, the court must be satisfied that the applicant knew/and had reasonable ground to believe that the money represented the proceeds of an indictable offence. There is no such evidence in the present case.", "zh-HK": "（三）即使知道涉案的款項是不適當的，也不代表必定與可公訴罪行有關而且是代表該罪行的得益，根據彭洪輝 案的第112段，法庭必須信納申請人知道/有合理理由相信款項為代表從可公訴罪行的得益，而本案沒有這樣的證據。" } }, { "doc_id": 31, "seg_id": 108, "translation": { "en": "Finally, Mr Wong, SC submitted that if this Court rejected the section 83P application, he still hoped that we would express our views on the grounds of appeal the applicant advanced.", "zh-HK": "最後，黃資深大律師說，若本庭拒絕「第83P條的申請」，他仍希望本庭可以就申請人的上訴理由表達本庭的看法。" } }, { "doc_id": 31, "seg_id": 109, "translation": { "en": "D3.Submissions of the Respondent", "zh-HK": "D3.答辯人的陳詞" } }, { "doc_id": 31, "seg_id": 110, "translation": { "en": "Mr Tam, SC took the view that section 83P was a discretion conferred on the head of the Executive, under the separation of powers, in the absence of exceptional circumstances, it should be left to the Chief Executive himself to decide.", "zh-HK": "譚資深大律師認為第83P條是賦予行政機關首長的酌情權，在三權分立的制度下，除非情況非常特殊，否則應由行政長官自行作決定。" } }, { "doc_id": 31, "seg_id": 111, "translation": { "en": "Mr Tam, SC pointed out that according to HKSAR v Hung Chan Wa & Another, time might not be extended for the re-opening of an appeal even on the ground that a subsequent judgment had held the previous understanding of the law to be incorrect. There must be finality in litigation.", "zh-HK": "譚資深大律師指出，根據HKSAR v Hung Chan Wa & Another,即使法庭經上訴案件宣佈之前沿用的法律原則有錯誤，也不一定能為上訴時效已過的案件提供重開上訴的理由，案件必須有終結性。" } }, { "doc_id": 31, "seg_id": 112, "translation": { "en": "Mr Tam, SC replied as follows to the grounds of appeal the applicant intended to advance:", "zh-HK": "而就申請人所擬提出的上訴理據，譚資深大律師回應如下：" } }, { "doc_id": 31, "seg_id": 113, "translation": { "en": "(1)In respect of the first ground, even after Pang Hung Fai, the Court had dismissed a number of applications for appeal that relied on the same type and the same grounds of appeal. Even if a subsequent judgment had held the previous understanding of the law to be incorrect, it does not mean that the appeal must be allowed. It must depend on the facts of the case, the evidence, the credibility of the witnesses and the findings of facts etc. Paragraph 85 of HKSAR and Pang Hung Fai also pointed out that the judge and the jury in many cases might not accept at all the evidence the defendant gave regarding his beliefs, understanding or prejudices on people or things. In the present case, the trial judge had the benefit of observing and listening to the witnesses. After considering the overall circumstances, he had sufficient reason not to accept the explanation the applicant gave in his evidence in this regard:", "zh-HK": "（一）就上訴理據一，即使在彭洪輝案後，亦有多宗依賴同類同上訴理據的案件的上訴申請被駁回，即使應用（後知是）錯誤的法律原則，並不等同上訴必然得直，而是必須視乎該案的案情、證供、證人可信性和事實裁決等。香港特別行政區訴彭洪輝案第85段亦指出，法官和陪審團可能在很多案件中全盤不接納被告人在審訊中就對人物或事情信念、理解或偏見的證供；而在本案中，原審法官在是耳聞目睹的優勢下，作出全盤考慮後，有充份理由不接納申請人在這方面的辯解供詞：" } }, { "doc_id": 31, "seg_id": 114, "translation": { "en": "(1)The applicant had had about 18 years of experience in accounting;", "zh-HK": "申請人有約18年會計工作經驗；" } }, { "doc_id": 31, "seg_id": 115, "translation": { "en": "(2)He knew nothing at all about the background and business of Mr C and Hegarty, the men behind the two companies involved in the case. He did not know them.", "zh-HK": "他對兩間涉案公司背後的C 先生和Hegarty的背景和業務完全沒有認知，並不相識；" } }, { "doc_id": 31, "seg_id": 116, "translation": { "en": "(3)In these circumstances, he still agreed to be the sole account holder and signatory;", "zh-HK": "在這情況下他仍同意擔任唯一開戶人和簽署人；" } }, { "doc_id": 31, "seg_id": 117, "translation": { "en": "(4)Knowing full well that there was the risk of money laundering, he withdrew and transferred away a total of about HK$28 million within a short time when he did not have a good understanding of the nature and use of a number of large-amount deposits made overseas and knowing that the two companies involved in the case had no actual business in Hong Kong; and", "zh-HK": "明明知道有洗黑錢的風險，卻在不了解多筆海外存入的大額款項的性質和用途、也知兩間涉案公司在香港沒有實質業務的情況下，把總值約2,800萬港元款項短時間提出調走；及" } }, { "doc_id": 31, "seg_id": 118, "translation": { "en": "(5)No document and receipt were kept in the file. The only excuse he gave was he trusted Mr C.", "zh-HK": "沒有任何文件收據存檔，而辯解只是他相信C先生；" } }, { "doc_id": 31, "seg_id": 119, "translation": { "en": "In the absence of credible excuse, the guilty verdict was a matter of course. Therefore, this ground lacked merit.", "zh-HK": "在沒有可信服的辯解下，定罪裁決是必然的，故此該理據並不充分。" } }, { "doc_id": 31, "seg_id": 120, "translation": { "en": "(2)As regards grounds 2 to 4, they concerned points of law that the Court of Final Appeal was going to deal with. These points were not settled yet;", "zh-HK": "（二）就上訴理據二至四，這涉及終審法院將要審議的法律問題，議題並未有定案；" } }, { "doc_id": 31, "seg_id": 121, "translation": { "en": "(3)In relation to grounds 5, 6, 9 and 10, the reply was the same as that to ground 1.", "zh-HK": "（三）就上訴理據五、六、九和十，回應同上訴理據一。" } }, { "doc_id": 31, "seg_id": 122, "translation": { "en": "(4)In respect of ground 7, the decided cases on money laundering did not require the prosecution to prove that the defendant knew the details behind the offence before he could be convicted.", "zh-HK": "（四）就上訴理據七，洗黑錢的案例並沒要求控方證明被告知道背後罪行的詳情才可定罪。" } }, { "doc_id": 31, "seg_id": 123, "translation": { "en": "(5)As regards ground 8, although the applicant did not have any duty under the law to make investigation, it was untenable that the applicant who was a professional accountant should actively participate in flow of funds activities with money whose source was unknown without making investigation when there were clear signs that money laundering activities were going on.", "zh-HK": "（五）就上訴理據八，雖然申請人沒法律責任作出調查，但是明顯在有洗黑錢活動跡象的情況下，申請人作為專業會計師不調查便積極參與不名來歷資金的調轉活動，是說不通的。" } }, { "doc_id": 31, "seg_id": 124, "translation": { "en": "Mr Tam, SC concluded by saying that the Court of Appeal should not express any view on the discretion contained in section 83P of the Ordinance.", "zh-HK": "譚資深大律師總結稱，上訴法庭不應就該條例第83P條所述的酌情權作出任何意見。" } }, { "doc_id": 31, "seg_id": 125, "translation": { "en": "D4.The views of this Court", "zh-HK": "D4. 本庭的意見" } }, { "doc_id": 31, "seg_id": 126, "translation": { "en": "Section 83P does not give the Court of Appeal power to invite the Chief Executive or “advise or assist” him to refer a case to the Court of Appeal. The cases Mr Wong referred us to did mention that the Court of Appeal might, pursuant to section 83P, invite the Chief Executive to refer the case to the Court of Appeal where the Court of Appeal could not treat the abandonment as a nullity when the appellant had abandoned the appeal and therefore suffered unfairness as a result of not being able to restore the appeal. But those cases only mentioned the big principle of preventing injustice but did not discuss in detail how the Court of Appeal should go about it.", "zh-HK": "第83P條沒有給予上訴法庭權力可以邀請行政長官或「忠告或協助」行政長將案件轉交上訴法庭。黃大律師所引援的案例，的確提到當上訴人因放棄上訴而上訴法庭不能視其放棄上訴為無效，而上訴人因此不能重新上訴會對他構成不公，上訴法庭可按第83P條邀請行政長官把案件轉交上訴法庭。但那些案例只提及防止不公義的大原則，卻沒有詳細討論上訴法庭該如何行事。" } }, { "doc_id": 31, "seg_id": 127, "translation": { "en": "In our view, even if the Court of Appeal had the power, it should not invite the Chief Executive to refer the case to the Court of Appeal casually on application made pursuant to section 83P.", "zh-HK": "本庭認為，即使上訴法庭有權亦不宜隨便就應申請根據第83P條邀請行政長官把案件轉交上訴法庭。" } }, { "doc_id": 31, "seg_id": 128, "translation": { "en": "First, as mentioned above, pursuant to section 83P(2), a convicted person may at any time, without having to apply to the Court of Appeal first, make the relevant petition himself to the Chief Executive to request the Court of Appeal to invite or to “advise or assist” the Chief Executive to refer the case to the Court of Appeal. As a matter of fact, if an applicant feels that not allowing him to appeal is not fair to him, he should immediately act on his own pursuant to section 83P to petition the Chief Executive without having to spend time again to wait for the hearing and decision of the Court of Appeal.", "zh-HK": "第一，如上文說，根據第83P(2)條，被定罪人士可隨時自行向行政長官提出有關的呈請，而無需先向上訴法庭申請，要求上訴法庭對行政長官發出邀請或提出「忠告和協助」，將案件轉交上訴法庭。其實，申請者若覺得不容許上訴對他是不公平的，他應即時自行按第83P條向行政長官提出呈請，不用再花時間等待上訴法庭的聆訊和決定。" } }, { "doc_id": 31, "seg_id": 129, "translation": { "en": "Secondly, it appears that there is not much point in reality to ask the Court of Appeal to do this. It is because even if the Court of Appeal did so, it would not be binding on the Chief Executive. Mr Wong, SC submitted that if the Court of Appeal did so, its reasons and decision carried quite a lot of weight, it would be more powerful then the person applying for it by himself. But he also agreed that however much weight the Court of Appeal’s opinion had, it had no binding effect on the Chief Executive at all. And in fact, it is also not possible for the Chief Executive to only obey the invitation or “advice or assistance” of the Court of Appeal without making his own independent consideration, or he would be undermining his own comprehensive discretion under section 83P. The law does not allow this. On the contrary, even if the Court of Appeal does not invite or “advise or assist” the Chief Executive to refer the case to the Court of Appeal, it will not hurt the interest of the applicant, because he can still petition the Chief Executive pursuant to section 83P. The limited and precious judicial resources of the Court of Appeal should not be spent on these applications that are not of much practical point.", "zh-HK": "第二，要求上訴法庭這樣做看實際意義不大，因為即使上訴法庭這樣做，也不會對行政長官有約束力。黃資深大律師說，若上訴法庭這樣做，其理據及決定甚具份量，並比該人士自己的申請更有力；但他也同意，無論上訴法庭的意見有多重量，對行政長官其實毫無約束力。而事實上，行政長官也不可能只是依從上訴法庭的邀請或「忠告和協助」而不作出獨立的考慮，否則他就是自削其在第83P條的全面酌情權。這是法律所不容許的。反過來說，即使上訴法庭不邀請或提出「忠告和協助」給行政長官，將案件轉交上訴法庭，也不會損害申請者的權益，因為他仍然可以向行政長官提出第83P條的呈請。上訴法庭有限及寶貴的司法資源不應用這些實際作用不大的申請上。" } }, { "doc_id": 31, "seg_id": 130, "translation": { "en": "Thirdly, the Court should respect the comprehensive discretion that section 83P confers on the Chief Executive when considering and deciding whether or not it should refer a certain case to the Court of Appeal. In the absence of extremely exceptional circumstances, the Court of Appeal should not take the initiative to advise or assist the Chief Executive to refer a case to the Court of Appeal, because when it does so, it is very likely that people may misunderstand it to mean that the Court is trying to influence the Chief Executive on how he should exercise its comprehensive discretion under section 83P. The Court of Appeal should avoid doing so the best it can.", "zh-HK": "第三，法庭應該尊重第83P條所給予行政長官全面的酌情權，來考慮並決定是否將某宗案件轉交上訴法庭；除非有非常特殊的情況，上訴法庭不應主動忠告及協助行政長官將案件轉交上訴法庭。因為當上訴法庭這樣做時，大有可能會另人誤以為法庭試圖影響行政長官如何按第83P條行使其全面的酌情權。上訴法庭應該盡量避免這樣做。" } }, { "doc_id": 31, "seg_id": 131, "translation": { "en": "As regards what the extremely exceptional circumstances are under which the Court of Appeal may invite the Chief Executive to consider exercising his discretionary powers under section 83P would depend on the actual circumstances of each case. Overall speaking, the applicant must put forward cogent and forceful important points to convince the court that his conviction is clearly so unsafe and unsatisfactory that disallowing him to appeal is clearly unfair to him. It is not sufficient for an applicant to merely say that the prospects of success of his appeal are reasonably arguable.", "zh-HK": "至於何謂非常特殊的情況，上訴法庭可以邀請行政長官考慮行使第83P條的酌情權，須視每宗案件實際的情況而定。總的而言，申請者必須舉出強而有力的重點，說服法庭其定罪是明顯不安全和不穩妥，不容許他上訴對他不公是顯而易見的；但若申請者單單說他的上訴勝算有合理可爭議之處，是不足夠的。" } }, { "doc_id": 31, "seg_id": 132, "translation": { "en": "In the present case, the applicant only said that his appeal had very good prospects of success but the respondent did not agree to that. After carefully considering the grounds of appeal and submissions from both sides, we consider that the applicant has not been able to put forward cogent and forceful important points to convince us that his convictions are clearly unsafe and unsatisfactory, or that disallowing him to appeal is clearly unfair to him. In other words, the applicant has not been able to convince this court that there are any extremely exceptional circumstances that require us to take the initiative to advise and assist the Chief Executive to refer the case to the Court of Appeal.", "zh-HK": "在本案中，申請人只說其上訴有很大勝算的把握，但答辯人並不同意；而本庭小心考慮過上訴理據和雙方的陳詞後，認為申請人未能夠舉出強而有力的重點，說服本庭其定罪是明顯不安全和不穩妥，或不容許他上訴對他不公是顯而易見的。換言之，申請人未能說服本庭有任何非常特殊的情況，本庭需要根據第83P條主動忠告及協助行政長官將案件轉交上訴法庭。" } }, { "doc_id": 31, "seg_id": 133, "translation": { "en": "In the result, we dismiss the section 83P application.", "zh-HK": "因此，本庭拒絕「第83P條的申請」。" } }, { "doc_id": 31, "seg_id": 134, "translation": { "en": "Mr Wong, SC requested us to express our views on the grounds of appeal the applicant advanced should this Court reject the section 83P application. As regards this, it is our view that we do not have the jurisdiction to express our view on an appeal that is not commenced before us. And even if this Court (does have) the jurisdiction over the (case), it is also extremely inappropriate to do so. Therefore, we reject the request of Mr Wong, SC.", "zh-HK": "至於黃資深大律師請求若本庭拒絕「第83P條的申請」，仍可以就申請人的上訴理由表達本庭的看法。本庭認為，本庭沒有司法管轄權，對某宗不是在本庭席前展開的上訴，表達我們的看法，而即使本庭該司法管轄權件，這也是極不合適的做法。因此，本庭拒絕黃資深大律師的請求。" } }, { "doc_id": 31, "seg_id": 135, "translation": { "en": "Mr Tam Yiu Ho, William, SC, Deputy Director of Public Prosecutions and Miss Sham Wing Yan, Jessie, Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司副刑事檢控專員資深大律師譚耀豪及檢控官岑穎欣代表" } }, { "doc_id": 31, "seg_id": 136, "translation": { "en": "Mr Wong Man Kit, SC and Tung S.Y. Sylvia, instructed by Messrs Morley Chow Seto, for the Applicant.", "zh-HK": "申請人：由麥樂賢同綽瑩司徒悅律師行轉聘資深大律師黃敏杰及大律師黃秀儀輔代表" } }, { "doc_id": 32, "seg_id": 1, "translation": { "en": "The applicant was convicted after trial before ST Poon J sitting with a jury of three charges, namely two counts of “indecent assault on another person” (Charges 1 and 3) and one count of “attempted unlawful sexual intercourse with a mentally incapacitated person” (Charge 2). ST Poon J imposed on the applicant a term of four years’ imprisonment. The applicant applied for leave to appeal against the sentence. After the hearing, I dismissed his application. Here are the reasons.", "zh-HK": "申請人經高等法院原訟法庭法官潘兆童會同陪審團審訊後被裁定三項控罪罪名成立，即兩項「猥褻侵犯另一人」罪（控罪一及三）及一項「企圖與精神上無行為能力的人非法性交」罪（控罪二）。潘法官判申請人四年監禁，申請人就刑期提出上訴許可申請。聆訊後，本席駁回申請，理由如下。" } }, { "doc_id": 32, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "案件背景" } }, { "doc_id": 32, "seg_id": 3, "translation": { "en": "1The victim of the three charges, female X, was a mentally incapacitated person. According to the educational psychologist’s report, she had a full scale intelligence quotient (“IQ”) of 50 and a percentile rank below 0.1, and she was classified as mildly intellectually disabled. At the material time, she was aged 19 but her adaptive behaviour was equivalent to a child aged 6 years and 4 months, which was obviously below what ought to be expected of a person at her age.", "zh-HK": "1三項控罪的受害人女子X是一名屬於精神上無行為能力的人，根據教育心理學家的報告，她的整體智商為50，等級低於0.1百分位數，被界定為輕度智力障礙。案發時她19 歲，但適應行為顯著低於其年齡應有行為期望，只有六歲四個月小孩的程度。" } }, { "doc_id": 32, "seg_id": 4, "translation": { "en": "It was alleged in the charges that on 15 October 2017, the applicant indecently assaulted X inside a lift in a public housing estate in Fanling, the New Territories, and subsequent to that he attempted to have sexual intercourse with her unlawfully and indecently assaulted her on a staircase. On the day in question, while X was waiting for her mother at the said housing estate, the applicant approached X, spoke to her and asked to have sexual intercourse with her. The applicant took her into a lift, touched or hit against X’s buttocks with his lower part having clothing in between (Charge 1). After that, the applicant took X to the staircase of the 18th floor, fondled X’s breasts, pulled down the waistband of her pants and took out his penis, attempting to have sex with her. In the applicant’s video-recorded interview, he admitted having “groped” X’s lower parts with his penis. He said, “Did thrust to her parts below, but did not penetrate” (Charge 2), and then he grasped X’s hand to touch his penis (Charge 3). The forensic pathologist’s report revealed that there were three abrasions of about 0.5 cm x 0.3-0.5 cm on the surface of the inner side of X’s labia minora. According to the medical evidence, although such abrasions were consistent with the result of sexual intercourse, they were also consistent with the private parts having been “groped” by a penis.", "zh-HK": "控罪指申請人於2017年10月15日，在新界粉嶺一屋邨的升降機內猥褻侵犯X，然後在梯間企圖與她非法性交及猥褻侵犯她。案發當日X在該屋邨等待母親，申請人與X搭訕，要求與她性交。申請人帶她進入升降機，以其下體隔着衣物觸碰或撞向X的臀部（控罪一）。然後申請人將X帶往18 樓梯間，撫摸X的胸部、拉下X的褲頭及抽出自己的陽具，企圖與她性交。根據申請人的錄影會面記錄，他承認他用陽具去「撩」X的下體。他說：「都係插過佢下面嗰度，但係冇插入去」（控罪二），申請人接着抓住X的手觸摸他的陽具（控罪三）。法醫的報告顯示，X的小陰唇內側表面有三處約0.5 厘米 x 0.3至0.5厘米的擦傷。根據醫學證據，這擦傷與曾經發生性行為脗合，但亦脗合以陽具「撩」下陰的行為。" } }, { "doc_id": 32, "seg_id": 5, "translation": { "en": "ST Poon J imposed the following sentences in respect of the charges:", "zh-HK": "潘法官就各項控罪判刑如下：" } }, { "doc_id": 32, "seg_id": 6, "translation": { "en": "Charge 1: two years’ imprisonment;", "zh-HK": "控罪一：監禁兩年；" } }, { "doc_id": 32, "seg_id": 7, "translation": { "en": "Charge 2: four years’ imprisonment;", "zh-HK": "控罪二：監禁四年；" } }, { "doc_id": 32, "seg_id": 8, "translation": { "en": "Charge 3: two years’ imprisonment.", "zh-HK": "控罪三：監禁兩年" } }, { "doc_id": 32, "seg_id": 9, "translation": { "en": "The sentences in respect of the three charges were to be served concurrently, making it a total of four years’ imprisonment.", "zh-HK": "三項控罪同期執行，總刑期為四年。" } }, { "doc_id": 32, "seg_id": 10, "translation": { "en": "II.Reasons for sentence", "zh-HK": "II.判刑理由" } }, { "doc_id": 32, "seg_id": 11, "translation": { "en": "1ST Poon J pointed out that as it could be seen from the CCTV footage that X obviously behaved in a way different from other normal 19-year-old young ladies. She was all along under the applicant’s manipulation in the way she followed him to the lift of the housing estate. The applicant was obviously taking advantage on her mental incapability to procure her into satisfying his own sexual gratification. In X’s trauma report prepared by the clinical psychologist, it was pointed out that after the incident X felt unhappy and angry, she was afraid of seeing middle-aged and elderly men, and her emotion and sleep were affected, but some of these impacts would gradually improve as time went by. ST Poon J found that the applicant ought to have been well aware of the consequences when he committed the offences, and that he had shown no remorse in the video-recorded interview or at trial. In these kinds of cases, “advanced age” was no mitigating factor. The court should protect mentally incapacitated people from harm.", "zh-HK": "1潘法官指出，從閉路電視錄影片段可見，X的舉止明顯與平常的19歲少女不同，她跟隨申請人到屋邨升降機路途上一直受申請人擺布，申請人顯然利用X的心智缺陷誘使對方滿足自己性慾。臨床心理學家撰寫X的創傷報告指出X在事件後感到不快和憤怒，害怕見到中年和老年的男性，情緒和睡眠皆受影響，但部分情況會隨時間逐漸好轉。潘法官認為，申請人犯案時理應清楚後果，而其錄影會面及審訊中的表現都顯示他並沒有悔意。在這類案件中「年老」並不構成減刑因素。法庭應保護無精神行為能力的人免受傷害。" } }, { "doc_id": 32, "seg_id": 12, "translation": { "en": "The applicant was aged 79 at the time of committing the offence and 80 on the date of sentence. He had two previous criminal convictions which were related to the offences of “assisting in the management of a massage establishment without a licence” in 1983 and “aiding and abetting the breach of condition of stay” in 2003.", "zh-HK": "申請人犯案時是79歲，判刑當日年逾80歲。申請人有兩次刑事定罪紀錄：於1983年干犯「協助管理無牌按摩院」罪及於2003年干犯「協助及教唆違反逗留條件」罪。" } }, { "doc_id": 32, "seg_id": 13, "translation": { "en": "III.Grounds of appeal", "zh-HK": "III.上訴理由" } }, { "doc_id": 32, "seg_id": 14, "translation": { "en": "The applicant claimed that on the day in question he could not go to Zhongshan for sightseeing as scheduled because of a typhoon and so he felt lonely and frustrated, and he did not notice that X was mildly intellectually disabled when he was talking with her; and that his penis had not gone into X’s private parts, thus indicating his great effort in controlling himself so as to maintain X’s hymen intact and thereby an illustration of his virtue and integrity. Further, he was already of advanced age and not good in health. It was his wish that the court would exercise the discretion to reduce his sentence so that he could reunite with his family and take care of his wife who was suffering from chronic depression and hypertension, thereby alleviating the burden of his daughter(s). Also, he had read some books on psychology during the remand period and was now deeply remorseful, he had got rid of depression and managed to develop a good relationship with fellow inmates. He submitted a letter for mitigation written by the priest appointed by the Correctional Services Department, in which he was described as friendly, hardworking, self-motivated, responsible and helpful and having the courage to face his own misdeeds. In addition, he had worked seriously in prison and had had a good relationship with other prisoners.", "zh-HK": "申請人稱在案發當日因受颱風影響未能如期前往中山旅行，故此寂寞苦惱，他與X攀談時並未發現她有輕度弱智的情況；他的陽具沒有進入X的私處，這表示他已盡量克制維持X的處女膜完整，是品德及人格的表現；再者他年紀老邁、體弱多病，盼望法庭酌情減刑，讓他與家人團聚，照顧長期罹患抑鬱症及高血壓的妻子，減輕女兒的負擔；他亦於拘押期間閱讀心理學書籍，已深感後悔，消除了抑鬱並與囚友建立良好關係。他提交懲教署委任的司鐸的求情信說申請人為人友善、勤奮、上進、有責任感、樂於幫助囚友及勇於面對自己的犯錯。另外，他在獄內工作認真，與其他更生人士的關係也良好。" } }, { "doc_id": 32, "seg_id": 15, "translation": { "en": "IV.My view", "zh-HK": "IV.本席的意見" } }, { "doc_id": 32, "seg_id": 16, "translation": { "en": "1The Court of Appeal has reiterated in many recent cases that the sentencing principle involving sexual assault on a child may be applied to sexual assault on a mentally incapacitated person. The sentencing principle in sexual assault on children is that the court has to protect innocent, trusting children and prevent these vulnerable persons from sexual assault which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it is necessary for the court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences are to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families, see HKSAR v Chan Ching-ho [2000] 3 HKLRD 476; HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 427 and HKSAR v L.C.H., CACC 435/2015.", "zh-HK": "1上訴法庭在多宗案件指出，涉及性侵犯未成年兒童的量刑原則適用於性侵犯精神上無行為能力的人士。性侵犯兒童案件的量刑原則是法庭必須保護無辜及容易信賴別人的兒童，避免這些易受傷害的人士被人性侵犯，以致身體及精神受到創傷。在涉及性侵犯兒童的案件，法庭有需要採取具阻嚇性的刑期來防止其他人士干犯這類罪行。這些具阻嚇性的刑期是表達公眾對這些罪行的厭惡及為受害者及其家人伸冤，見HKSAR v CHAN Ching-ho [2000] 3 HKLRD 476；香港特別行政區訴曾昭德 [2013] 1 HKLRD 422及HKSAR v L.C.H. CACC 435/2015。" } }, { "doc_id": 32, "seg_id": 17, "translation": { "en": "In L.C.H., the Court of Appeal pointed out that the facts of each case is different, the court therefore has not laid down any sentencing guideline on sexual assault on mentally incapacitated people, however, as it can be seen from the precedents of this nature, a starting point of two years’ imprisonment was adopted for sentence in cases having less serious facts, two to five years’ imprisonment in cases having relatively serious facts, and over five years’ imprisonment in cases of serious nature. In L.C.H., the accused was an instructor of an institution serving mentally incapacitated and mentally retarded people, and he assaulted a 32-year-old mentally incapacitated woman of the institution. He admitted two counts of indecent assault. According to the facts of the case, the applicant said under caution that the said woman consented to have sex with him, and that he had tried to have sexual intercourse with her, but there was no penetration into the woman’s private parts because he could not achieve penile erection. In the summary of the facts, it was also alleged that in respect of Charge 1, the said woman had by herself removed her pants, and in respect of Charge 2, when the accused began having sexual intercourse, she by herself took off her clothes and climbed onto the accused’s bed. The Court of Appeal found a term of three and a half years’ imprisonment an appropriate starting point for each of the offences, and eventually a term of two years and eight months’ imprisonment was imposed. The accused in the case was the victim’s instructor, and hence the sentence was aggravated by the accused’s breach of trust.", "zh-HK": "在L.C.H.一案，上訴法庭指出由於每宗案情不同，所以法庭沒有就性侵犯精神上無行為能力的人士案件給予量刑指引，但從這類案例可見案情比較輕微的案件的量刑起點是兩年監禁，案情比較嚴重的案件的量刑起點是兩至五年監禁，而案情嚴重的案件的量刑起點是五年以上監禁。在L.C.H.一案，被告人是一間服務弱智及智障人士的院舍導師，他侵犯該院舍的一名32歲精神上無行為能力的女子。他承認兩項「猥褻侵犯」罪。案情顯示申請人在警誡下稱在該名女子同意下與他進行性行為，他曾嘗試與該女子性交，但由於陽具未能勃起，故此沒有進入該女子的私處。該案的事實撮要亦指在第一項控罪，該女子自己脫下褲子，在第二項控罪，當被告人開始性行為時，該女子自己脫去身上所穿的衣服及爬上被告人的床。上訴法庭判每一項控罪的量刑起點應為三年半監禁，最終刑期定為兩年八個月監禁。該案的被告人是受害人的導師，故此該案其中加刑的理由是被告人違反誠信。" } }, { "doc_id": 32, "seg_id": 18, "translation": { "en": "No breach of trust is involved in the present case. However, I do not agree that in respect of Charge 2, the term of four years adopted by Poon J was not appropriate and a term similar to that in L.C.H., or even shorter, should be adopted. This is because each case has its own distinctive facts. Although according to the law, it is not possible for a mentally incapacitated person to give consent to have sexual intercourse with the accused, one of the factors considered by the Court of Appeal in the sentence in L.C.H. was the woman’s own behaviour, which was consistent with taking into account whether the accused has sexually assaulted the victim by force in considering the sentence in these kinds of cases. In the present case, X was completely passive and subject to the applicant’s manipulation and insult. Moreover, two other counts of indecent assault are also involved in the present case, and therefore apart from considering if the sentence in respect of each of the charges is appropriate, I have to consider if the sentence in total was manifestly excessive as well, which means whether the sentence imposed by the court is excessive or has gone beyond the range appropriate for such offences. Under such circumstances, even if the reasons for sentence after trial do not indicate any particular error, the Court of Appeal may still find the trial judge has erred in exercising his discretion in passing the sentence: R v Waddingham (1983) 5 Cr App R (S) 66 and R v Lo Yim Kai [1966] HLKR 414. According to the facts of the present case, I do not think that the sentence of four years’ imprisonment in total is manifestly excessive. In addition, ST Poon J’s ruling that the accused’s old age in this type of cases was not a mitigating factor was supported by authorities, see: HKSAR v CHOW Chi-ming, HCMA 1247/2005.", "zh-HK": "本案不存有違反誠信的情況。但本席不認同就第二項控罪潘法官採用四年監禁刑期是不適當的，反而需要採用與L.C.H.一案相若的刑期，甚至是更輕的刑期。這是因為每宗案件的案情不同。雖然法律視無精神行為能力的人不可能同意與被告人發生性行為,但上訴法庭在L.C.H.量刑的其中一個考慮是該女子的行為，這亦是符合這類案件被告人是否強行侵犯受害人的量刑考慮因素。本案的X完全是被動，受申請人擺布凌辱。另外，本案涉及其他兩項「猥褻侵犯」罪，故此本席除了需要考慮個別刑期是否適當外，還要考慮整體刑期是否明顯過重，這是指法庭所判處的刑罰偏重或超出該類型罪行判處適當刑罰的範圍。在此情況下，即使原審的判刑理由未能顯示它有特定的錯誤，上訴法庭仍可以裁定原審法官錯誤行使其量刑酌情決定權：R v Waddingham (1983) 5 Cr App R (S) 66及R v Lo Yim Kai [1966] HLKR 414。根據本案案情本席不認為四年監禁的總刑期是明顯過重。另外，潘法官裁定被告人的年紀在這類案件不是求情理由亦是有案例支持，見：HKSAR v CHOW Chi-ming（周志明）HCMA 1247/2005。" } }, { "doc_id": 32, "seg_id": 19, "translation": { "en": "In light of the above reasons, the application was dismissed.", "zh-HK": "基於上述理由，本席駁回申請。" } }, { "doc_id": 32, "seg_id": 20, "translation": { "en": "V.Advice", "zh-HK": "V.忠告" } }, { "doc_id": 32, "seg_id": 21, "translation": { "en": "The applicant is entitled to renew his application for leave to appeal before the Full Court of the Court of Appeal, nevertheless, I have to advise him of the following: In the event that his renewed application is eventually dismissed, the Court of Appeal shall have the power to order for loss of time in respect of the time that he has spent in custody. In other words, he may have to serve a longer term of imprisonment.", "zh-HK": "申請人是有權利向三名法官組成的上訴法庭重新提出其上訴許可申請，但本席需要忠告申請人，若果他的申請最終被上訴法庭駁回，上訴法庭有權命令他在羈留期間的部分時間不當作刑期的一部分。換句話說，他可能需要服更長的刑期。" } }, { "doc_id": 32, "seg_id": 22, "translation": { "en": "The Applicant: in person, present.", "zh-HK": "答辯人：由律政司高級檢控官何眉語代表。" } }, { "doc_id": 32, "seg_id": 23, "translation": { "en": "Miss Lily Ho, Senior Public Prosecutor, of the Department of Justice, for the respondent.", "zh-HK": "申請人：無律師代表，親自出庭應訊。" } }, { "doc_id": 33, "seg_id": 1, "translation": { "en": "Barnes J (giving the judgment of the Court):", "zh-HK": "原訟法庭法官張慧玲宣讀上訴法庭判案書：" } }, { "doc_id": 33, "seg_id": 2, "translation": { "en": "The applicant was charged with three counts of burglary, the first two charges contrary to section 11(1)(b) and (4), Theft Ordinance, Cap. 210, Laws of Hong Kong and the third charge contrary to section 11(1)(a) and (4) of the said Ordinance. The applicant pleaded guilty to the first two charges before Deputy District Judge Sham and was sentenced to 43 months’ imprisonment while the third charge was left on the file. The applicant now seeks leave to appeal against sentence.", "zh-HK": "申請人被控三‍項「入屋犯法」罪，首兩項違反香港法例第 210 章《盜竊罪條例》第 11(1)(b)及(4) 條，第三項則違反上述條例第 11(1)(a)及(4) 條。申請人在區域法院暫委法官沈‍小‍民席前承認首兩項控罪，被判監禁43 個月。第三項控罪則留在法庭存檔。申請人現針對判刑申請上訴許可。" } }, { "doc_id": 33, "seg_id": 3, "translation": { "en": "Admitted facts", "zh-HK": "承認案情" } }, { "doc_id": 33, "seg_id": 4, "translation": { "en": "The facts of the case were that in January and March 2009, the applicant sneaked into the flats in question to steal.", "zh-HK": "案情顯示申請人在2009 年1 月及3 月期間，分別潛入涉案‍單位偷竊。" } }, { "doc_id": 33, "seg_id": 5, "translation": { "en": "In respect of Charge 1, the applicant sneaked into the flat in question around 1 pm on 6th January 2009 to steal. While doing so, he alerted the owner of the flat. The applicant made good his escape. Upon checking, the flat owner confirmed a loss of two hundred dollars in cash and a mobile phone which was worth HK$4,000.", "zh-HK": "就首項控罪，申請人在2009 年1 月6 日下午一時許潛入涉‍案單位偷竊，期間驚動戶主。申請人成功逃脫。經點算後，戶主確認失去現金200 元及一‍部價值港幣4,000 元的流動電話。" } }, { "doc_id": 33, "seg_id": 6, "translation": { "en": "In respect of Charge 2, the applicant sneaked into the flat in question on the afternoon of 13th March 2009 to steal. At the time, the owner of the flat was not at home. The applicant stole $8,000 in cash and approximately HK$33,000’s worth of property. The male owner of the flat returned home and found the applicant. He then called the police for assistance. When the applicant left the flat, the male owner of the flat who was waiting outside the flat tried to intercept the applicant, but was scared off by the applicant who was holding a crowbar. The applicant made good his escape.", "zh-HK": "就第二項控罪，申請人於2009 年3 月13 日下午潛入涉案單位偷竊，戶主當時未歸。申請人盜取現金8,000 元及總值港幣約33,000 元的財物。男戶主回家，發現申請人，遂報警求助。申請人離開單位時，守候單位外的男戶主試圖將申請人截停，但被手執鐵筆的申請人嚇退，申請人成功逃脫。" } }, { "doc_id": 33, "seg_id": 7, "translation": { "en": "The applicant was subsequently arrested by the police in August when he was stopped for inquiries. Under caution, he admitted having committed the above offences.", "zh-HK": "申請人其後在8 月被警員截查拘捕，在警誡下他承認干犯上述控罪。" } }, { "doc_id": 33, "seg_id": 8, "translation": { "en": "Background of the applicant", "zh-HK": "申請人背景" } }, { "doc_id": 33, "seg_id": 9, "translation": { "en": "The 39-year-old applicant has three criminal convictions, one of which is for the same offence as the ones in the present case. For that offence, the applicant was sentenced to 2½ years’ imprisonment. In mitigation, counsel for the applicant submitted that the applicant was heavily in debt due to unemployment and thus committed the offences in desperation.", "zh-HK": "申請人現年39 歲，有三項刑事紀錄，其中一項與本案罪行‍相同。就該罪行申請人被判監2½ 年。申請人代表律師求情時指申請人因失業而債台高築，鋌而走險犯案。" } }, { "doc_id": 33, "seg_id": 10, "translation": { "en": "Reasons for sentence", "zh-HK": "判刑理由" } }, { "doc_id": 33, "seg_id": 11, "translation": { "en": "In sentencing, Deputy Judge Sham had considered the applicant’s background and the reasons for committing the offences. This is a case involving domestic premises and the normal starting point for this is 3 years’ imprisonment. The starting point for Charge 1 was one of 3 years. The circumstances of the offence in Charge 2 were aggravated by the fact the applicant pointed a crowbar at the male flat owner to scare him off. The starting point was one of 3½ years. The starting points were reduced to 2 years and 28 months respectively on account of the applicant’s guilty pleas. When considering the totality principle, Deputy Judge Sham referred to HKSAR v Ng Ngai Shan CACC197/2008 and he took the view that 19 months of the sentence imposed on Charge 2 should run consecutively to that on Charge 1, making a total term of 43 months.", "zh-HK": "沈‍法官判刑時考慮了申請人的背景及犯罪原因，案件涉及住宅，量刑起點一般而言是3 年監禁。首項控罪起點是3 年。因申請人在第二項控罪中使用鐵筆指嚇男戶主，令案情更為嚴重，起點是3½ 年。因申請人認罪，分別下調至2 年及28 個月。沈‍法官在考慮整體刑期原則時，參考HKSAR v Ng Ngai Shan (吳艾山) CACC197/2008一案，認為應將第二項控罪中的19 個月與第一項控罪的刑期分期執行，總刑期是43 個月。" } }, { "doc_id": 33, "seg_id": 12, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 33, "seg_id": 13, "translation": { "en": "Ms. Karen Cheung, counsel for the applicant, put forward two grounds of appeal:", "zh-HK": "申請人代表張‍偉‍顏大律師提出兩項上訴理由:" } }, { "doc_id": 33, "seg_id": 14, "translation": { "en": "(1)Deputy Judge Sham did not sufficiently reflect in the sentences imposed the confession voluntarily made by the applicant to the police notwithstanding a lack of evidence from the prosecution to link the two offences to him.", "zh-HK": "(一)沈‍法官未有在判刑時充分反映申請人是在控方沒有證據將他與該兩項控罪連繫的情況下自願向警方作出招認的。" } }, { "doc_id": 33, "seg_id": 15, "translation": { "en": "(2)Deputy Judge Sham inappropriately mentioned the present case in the same breath with Ng Ngai Shan (for Ng Ngai Shan committed another offence whilst on bail), and thereby ordered 19 months of the sentence imposed on Charge 2 to run consecutively to that on Charge 1. The overall sentence and the proportion were both inconsistent with principle.", "zh-HK": "(二)沈‍法官不當地將本案與吳艾山相提並論(因為吳艾山在保釋期間再干犯控罪)，判令第二項控罪的19 個月與首項控罪分期執行，整體刑期及比例性均不合原則。" } }, { "doc_id": 33, "seg_id": 16, "translation": { "en": "Respondent’s response", "zh-HK": "答辯人回應" } }, { "doc_id": 33, "seg_id": 17, "translation": { "en": "Mr. Ira Lui, Senior Public Prosecutor for the Respondent, made a very fair submission in which he conceded that, in the light of the fact that the applicant had twice made good his escape and the owners of the flats concerned could not recognize the applicant, the prosecution would not have been able to prove the applicant’s guilt but for his confession. Mr. Lui also submitted that Deputy Judge Sham did not exercise his discretion to reduce the sentence, but he did not give any reasons for it in his Reasons for Sentence. Mr. Lui was of the view that this court could, upon referring to the authorities, exercise its discretion to slightly reduce the sentence imposed on the applicant.", "zh-HK": "答辯人代表高級檢控官雷‍芷‍茗的陳詞非常中肯。他認同申請人兩次均成功逃脫，相關戶主未能認出申請人，若申請人不是作出招認，控方不能將他繩之於法。雷‍律師指沈‍法官沒有行使酌情權將刑期扣減，但他並無在判刑理由書裡面講明原委。雷‍律師認為本庭可參照案例，酌情稍減申請人的刑期。" } }, { "doc_id": 33, "seg_id": 18, "translation": { "en": "In respect of the overall sentence, having cited relevant authorities, Mr. Lui submitted that Deputy Judge Sham’s ordering 19 months of the sentence imposed on Charge 2 to run consecutively to that on Charge 1 might be debatable.", "zh-HK": "就整體刑期，雷‍律師在引述有關案例後，認為沈‍法官頒令第二項控罪其中19 個月與首項控罪分期執行，或有可議之處。" } }, { "doc_id": 33, "seg_id": 19, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 33, "seg_id": 20, "translation": { "en": "For burglaries committed at domestic premises, the starting point is one of 3 years (see HKSAR v Ng Wai Hing [2003] 2 HKLRD 338). The circumstances of the case were aggravated by the fact that these were premeditated crimes involving the use of a crowbar by the applicant. It is appropriate to enhance the starting point (see HKSAR v Chu Chun Man CACC415/2009). The applicant is not a man of previously good character. He has one previous conviction for the same offence, but he is not a persistent offender.", "zh-HK": "就入屋犯法罪，若涉及住宅，量刑起點是3 年(見HKSAR v ‍Ng Wai Hing [2003] 2 HKLRD 338。申請人使用鐵筆有計劃犯案，令案情更嚴重，上調量刑起點是正確的(見香港特別行政區訴朱俊文CACC415/2009)。申請人並非初犯者，他有一次相同罪行紀錄，但不算是慣匪。" } }, { "doc_id": 33, "seg_id": 21, "translation": { "en": "On Charge 1, Deputy Judge Sham properly took a starting point of 3 years and reduced it by one-third to give the applicant the discount he was entitled to for his guilty plea. The sentence was 2 years’ imprisonment. On Charge 2, it is not improper for Deputy Judge Sham to increase the starting point to 3 years and 6 months. After a discount for the guilty plea, the sentence was 2 years and 4 months’ imprisonment.", "zh-HK": "就首項控罪，沈‍法官採納3 年此量刑起點是恰當的。申請人認罪，可得三分之一認罪扣減。刑期是2 年。就第二項控罪，沈‍法官將量刑起點向上調至3 年6 個月亦無不當。經認罪扣減後，刑期是2 年4 個月。" } }, { "doc_id": 33, "seg_id": 22, "translation": { "en": "We have considered relevant authorities, including Chu Chun Man (supra) and cases listed therein: HKSAR v Lee Kwok Chuen CACC445/2000; HKSAR v Hui Chi Tong CACC414/2007; HKSAR v Chan King Yuen CACC29/2010 and HKSAR v Hui Yee Lung CACC284/2009. The total sentence of 43 months Deputy Judge Sham arrived at by making 19 months of the sentence imposed on Charge 2 consecutive to the 24 months imposed on Charge 1 is, in our view, manifestly excessive.", "zh-HK": "本庭在考慮了有關案例：包括上述朱俊文及在朱俊文一‍案中列舉的案例：HKSAR v Lee Kwok Chuen CACC445/2000；HKSAR v Hui Chi Tong CACC414/2007；香港特別行政區訴陳景炫 CACC29/2010及香港特別行政區訴許儀龍 CACC284/2009。本庭認為沈‍法官頒令第二項控罪其中19 個月與首項控罪的24 個月分期執行，而達致總刑期43 個月，確是明顯過重。" } }, { "doc_id": 33, "seg_id": 23, "translation": { "en": "That the applicant still voluntarily pleaded guilty notwithstanding a lack of sufficient evidence from the Prosecution showed that he was genuinely remorseful. In these circumstances, the court should give a further discount to the applicant as an encouragement. This is also in the public interest (see Secretary for Justice v Tsui Kim Ming Simon CAAR4/1997; HKSAR v Ng Wing Chung CACC176/2005 and HKSAR v Hui Chi Tong CACC414/2007). Deputy Judge Sham did not give any further discount to acknowledge the fact that the applicant still voluntarily pleaded guilty in the above circumstances. This made the sentence manifestly severe.", "zh-HK": "申請人在控方證據不足下仍然自願認罪，可見他是真誠懊悔。在此情況下，法庭應給予申請人額外扣減，以作鼓勵。此舉亦符合公衆利益(見Secretary for Justice v Tsui Kim Ming Simon CAAR4/1997；HKSAR v Ng Wing Chung CACC176/2005及HKSAR v Hui Chi Tong CACC414/2007)。沈‍法官並無因應申請人在上述情況下仍然自願認罪再予以扣減，令刑期更是過分嚴苛。" } }, { "doc_id": 33, "seg_id": 24, "translation": { "en": "In our view, had the applicant not pleaded guilty, as stated above, in the absence of sufficient evidence, the appropriate total sentence should have been 38 months. We consider that the applicant should be given a further discount of 4 months for pleading guilty notwithstanding insufficient evidence. Accordingly, the appropriate total sentence is 34 months.", "zh-HK": "本庭認為申請人若非在上述證據不足情況下仍然認罪，恰當的總刑期應為38 個月。在考慮了申請人在證據不足的情況下仍然自願認罪，本庭認為應給予申請人額外4 個月的扣減，恰當的總刑期為34 個月。" } }, { "doc_id": 33, "seg_id": 25, "translation": { "en": "In view of the reasons above, we grant the application for leave to appeal, and treating the application as the appeal itself, we allow the appeal and substitute the sentences with the following:", "zh-HK": "基於上述理由，本庭批准上訴申請許可，並視之為正式上訴，上訴得直，刑期改判如下：" } }, { "doc_id": 33, "seg_id": 26, "translation": { "en": "Charge (1):20 months’ imprisonment;", "zh-HK": "控罪(一)：監禁20 個月；" } }, { "doc_id": 33, "seg_id": 27, "translation": { "en": "Charge (2):14 months’ imprisonment; to run consecutively,", "zh-HK": "控罪(二)：監禁14 個月；分期執行，" } }, { "doc_id": 33, "seg_id": 28, "translation": { "en": "making a total of 34 months.", "zh-HK": "合共34 個月。" } }, { "doc_id": 33, "seg_id": 29, "translation": { "en": "Mr. Ira Lui, Senior Public Prosecutor of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級檢控官雷芷茗代表香港特別行政區。" } }, { "doc_id": 33, "seg_id": 30, "translation": { "en": "Ms. Karen Cheung, instructed by Messrs. Tang, Wong & Chow, assigned by the Director of Legal Aid, for the Applicant", "zh-HK": "申請人：由法律援助署委託鄧王周廖成利律師行轉聘張偉顏大律師代表。" } }, { "doc_id": 34, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the judgment of the Court):", "zh-HK": "高等法院上訴法庭副庭長楊振權頒發上訴法庭判案書：" } }, { "doc_id": 34, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 34, "seg_id": 3, "translation": { "en": "The applicant (Man Shun Tai) was charged with one charge of attempted burglary. He pleaded not guilty and was tried before HH Judge Stanley Chan (“the trial judge”).", "zh-HK": "申請人（文順泰）被控一項企圖入屋犯法罪。他否認控罪，並在區域法院法官陳廣池（原審法官）席前受審。" } }, { "doc_id": 34, "seg_id": 4, "translation": { "en": "On 16 February 2015, the trial judge found the applicant guilty and on the same day sentenced him to imprisonment of three years and six months. The applicant was aggrieved at his conviction. On 4 March 2015, he applied for leave to appeal against conviction.", "zh-HK": "2015年2月16日，原審法官裁定申請人罪名成立，並在同日判他入獄3年6個月。申請人不服定罪，並在2015年3月4日提出上訴許可申請，要求法庭批准他就定罪上訴。" } }, { "doc_id": 34, "seg_id": 5, "translation": { "en": "On 9 December 2015 a single judge of the Court of Appeal dismissed his application. The applicant does not give up and he applies again for leave, hoping that he would be allowed to appeal against his conviction.", "zh-HK": "2015年12月9日，上訴法庭單一法官駁回申請。申請人仍不服，並重新提出上訴許可申請，希望能獲准就定罪上訴。" } }, { "doc_id": 34, "seg_id": 6, "translation": { "en": "Prosecution case and evidence", "zh-HK": "控方的立場及證據" } }, { "doc_id": 34, "seg_id": 7, "translation": { "en": "The prosecution alleged that in the evening of 16 August 2014 the applicant and another person, who is at large, acted furtively near no. 23 Bisney Road, Pokfulam and that they were being watched by police officers who were conducting an anti-burglary operation there. One of the officers, PC 12073, saw that the applicant climbed up a drainpipe to the outside of a residential unit on the 1st floor of no. 23 Bisney Road. PC 12073 said that the applicant attempted to open a window of the unit with his hand but without success. Thereupon, he climbed down to the ground and walked to the hillside on Sassoon Road near the canteen of the University of Hong Kong.", "zh-HK": "控方指申請人和另一名在逃人士在2014年8月16日傍晚在薄扶林碧荔道近23號形跡可疑。負責防止“爆竊”行動的警員在監視申請人和該名在逃人士期間，有一名警員12073看見申請人沿水渠攀爬上碧荔道23號一樓的住宅外的位置。警員12073指申請人有用手企圖打開該住宅的窗戶，但不成功。申請人隨即返回地面，然後步行往香港大學沙宣道的飯堂附近的山坡。" } }, { "doc_id": 34, "seg_id": 8, "translation": { "en": "Six or seven police officers took part in the anti-burglary operation, but only one of them (PC 12073) claimed that he had seen that the applicant climbed up the drainpipe. At that time he was wearing a jacket and a cap and had a mask over his mouth. According to PC 12073, after the applicant returned to the ground, he took off the mask, the jacket and the gloves [sic], exposing a red T shirt he was wearing. PC 12073 further said that when he first saw the applicant, the applicant was also wearing a red T shirt and that he put on the cap, the mask and the jacket only when he was about to climb up the drainpipe.", "zh-HK": "雖然參與上述防止“爆竊”行動的警員有六至七名，但只有其中一名警員（12073）聲稱有目睹申請人攀爬水渠，而當時他是穿着風褸和戴有鴨舌帽及口罩。警員12073指申請人返回地面後，除去口罩、風褸和手套，露出身穿的紅色T裇。警員12073亦指他首次見到申請人時，申請人亦是身穿紅色T恤，而他是在攀爬水渠前，才戴帽、口罩和穿上風褸。" } }, { "doc_id": 34, "seg_id": 9, "translation": { "en": "PC 12073 immediately reported to his team mates and asked for support, but the applicant and the person who is at large walked away hurriedly. Finally, the applicant was intercepted but the other person managed to escape.", "zh-HK": "當警員12073隨即通知同袍要求支援，但申請人和該名在逃人士急步離開。結果警員截停申請人，但在逃人士則成功逃脫。" } }, { "doc_id": 34, "seg_id": 10, "translation": { "en": "The police alleged that when the applicant was being questioned he said he was having a walk in the hill, but that he did not disclose what relationship he had with the person who got away. The police officers searched the black plastic bag which the applicant held in his hand and found that in the bag there were a blue pullover, a black jacket, a mask, labour gloves and a small torch.", "zh-HK": "警員聲稱查問申請人時，申請人表示自己正在行山，但他沒有說他和在逃人士的關係。警員檢視申請人手持的黑色膠袋時，發現袋內有藍色衞衣、黑色外套、口罩、勞工手套及一支細電筒。" } }, { "doc_id": 34, "seg_id": 11, "translation": { "en": "When the police officers handcuffed the applicant, he did not cooperate and behaved nervously. His elbow was injured and bled.", "zh-HK": "警員把申請人上手銬時，申請人不合作及表現緊張，而他的手肘有受傷、流血。" } }, { "doc_id": 34, "seg_id": 12, "translation": { "en": "In the video-recorded interview conducted in the police station, the applicant denied having acted in any way which had anything to do with the crime of burglary. He explained that at the material time, he had knocked off and he went past the place. He just wanted to see what food there was at the university canteen.", "zh-HK": "在警署接受錄影會面時，申請人否認犯有任何和“爆竊”罪行有關的行為，他表示案發時，他收工經過，看看大學飯堂有甚麼東西吃。" } }, { "doc_id": 34, "seg_id": 13, "translation": { "en": "The applicant further said that on the day in question, he was working in a construction site about half an hour’s walk from the scene of the offence. He admitted that the black plastic bag and the things in it, namely a cap, a mask, gloves, a blue pullover and a black jacket belonged to him, but he denied that there was an electric torch in the bag. He complained that the police framed him. Prosecution evidence shows that the applicant had not been employed at any construction site near the scene of the offence.", "zh-HK": "申請人亦指案發當天，他在距離案發地點步行半小時的地盤開工。申請人承認有關的黑色膠袋和膠袋載着的帽、口罩、手套、藍色衞衣和黑色外套都是他的，但否認袋中有電筒。申請人指警員“屈”他。控方的證據顯示涉案現場附近的地盤都沒有聘請過申請人。" } }, { "doc_id": 34, "seg_id": 14, "translation": { "en": "Applicant’s case and evidence", "zh-HK": "申請人的立場和證據" } }, { "doc_id": 34, "seg_id": 15, "translation": { "en": "The applicant denied the prosecution’s allegations and maintained that he did not commit the offence. He complained that the police officers lied and wrongly accused him, but he did not give evidence and did not call any witness.", "zh-HK": "申請人否認控方的說法，並指自己沒有干犯有關罪行。他指多名警員說謊誣告他。但申請人沒有作供，亦沒有傳召證人為他作供。" } }, { "doc_id": 34, "seg_id": 16, "translation": { "en": "Verdict given by the trial judge", "zh-HK": "原審法官的裁決" } }, { "doc_id": 34, "seg_id": 17, "translation": { "en": "The trial judge pointed out that although the applicant did not make any confession under caution, he did change the version of his story. One moment he said he was looking for someone at the scene; the next he said he was going to the canteen for a meal; and at yet another moment he mentioned that he was working at a construction site. The trial judge rejected the applicant’s explanation given during the video-recorded interview.", "zh-HK": "原審法官指出申請人在警誡下沒有作出過任何招認，但他有顧左右而言。他一時說在現場找人、一時說去飯堂吃飯、一時又提及在地盤開工。原審法官拒絕接納申請人在錄影會面時的解釋。" } }, { "doc_id": 34, "seg_id": 18, "translation": { "en": "The trial judge stated that a police officer saw that the applicant climbed up the drainpipe fixed on the outside of the building and tampered with a window, but that he failed to do anything and left. The trial judge found that the applicant, when being watched by the police officer, did climb up the drainpipe, reached the 1st floor of the building, and did tamper with the window with his hand.", "zh-HK": "原審法官指出有警員目睹申請人攀爬涉案樓宇外的水渠及“攪”窗戶，不過最終是無功而退。原審法官認定申請人有在警員監視下攀爬水渠上涉案樓宇的一樓，並用手“攪”窗戶。" } }, { "doc_id": 34, "seg_id": 19, "translation": { "en": "The trial judge found that the police officers involved in this case were all honest and reliable witnesses, and that they had no motive to lie against the applicant.", "zh-HK": "原審法官認定涉案的多名警員都是誠實可靠的證人，而他們沒有動機說謊誣告申請人。" } }, { "doc_id": 34, "seg_id": 20, "translation": { "en": "The trial judge found that the acts of the applicant, namely climbing up the drainpipe to the 1st floor of the building and tampering with the window with his hand were more than preparatory to the commission of the relevant offence and constituted attempted burglary. Therefore, he found the applicant guilty.", "zh-HK": "原審法官認定申請人攀爬水渠上一樓外的位置及用手“攪”窗戶等作為已超乎預備犯罪，而構成企圖入屋犯法罪。因此，原審法官裁定申請人罪名成立。" } }, { "doc_id": 34, "seg_id": 21, "translation": { "en": "In giving his verdict of guilty, the trial judge made the following comments on the police officers’ integrity:", "zh-HK": "在作出定罪裁決時，原審法官就警員的誠信，作出以下評論：" } }, { "doc_id": 34, "seg_id": 22, "translation": { "en": "“The evidence of the police officers was not shaken at all when they were being cross-examined by defence counsel. I do not believe that the defendant had been assaulted by any police officer when he was intercepted or when he was in the police station. The police officers did not need to fabricate evidence to falsely accuse the defendant of attempted burglary. Had they been minded to do that, they could have also made up evidence that the defendant made an oral confession at the scene … ”", "zh-HK": "“各名警員的證言從沒有在辯方大律師的盤問下有所動搖。本席亦不相信警員在截查被告時或在警署之內毆打被告。警員亦犯不著捏造證據，誣捏被告企圖爆竊。否則，警員大可捏造被告在拘捕現場的口頭招認…”" } }, { "doc_id": 34, "seg_id": 23, "translation": { "en": "“I do not believe that these police officers would, for the purpose of giving the defendant ‘an additional charge’ of (having the defendant charged with) attempted burglary, be so unscrupulous and foolish as to commit an offence which is even more serious, ie conspiracy to pervert the course of justice.”", "zh-HK": "“本席不相信眾多警員因為要‘加控’（檢控）被告一項企圖爆竊罪，而膽敢及愚昧地干犯一項更加嚴重的串謀妨礙司法公正罪。”" } }, { "doc_id": 34, "seg_id": 24, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 34, "seg_id": 25, "translation": { "en": "The applicant submitted that the police officers’ evidence was not credible and that there were discrepancies between the evidence of some police officers and their statements. He also pointed to inconsistencies between the prosecution’s summary of facts and the witnesses’ evidence. The applicant emphasized that the upper garments which he was wearing were not stained with any dirt, so he could not possibly have climbed up and down the drainpipe as alleged by the prosecution witness, and that the stains on his jeans had nothing to do with this case.", "zh-HK": "申請人指控方警員的證言不可信，而部分警員的證言和他們的口供有分歧。申請人亦指控方的案情撮要和證人的證供有出入。申請人強調自己身上的上衣沒有污漬，顯示他不可能如控方證人所指有攀爬水渠的行為，而他穿着的牛仔褲上的污漬亦與案件無關。" } }, { "doc_id": 34, "seg_id": 26, "translation": { "en": "The applicant submitted that it was simply impossible that the prosecution witnesses could see him climb the drainpipe, and that the prosecution did not have any scientific evidence to support the charge against him. He stressed that no sole marks were found on the drainpipe of the building, and that there was no evidence which showed that any clothings on his person had come into contact with the drainpipe or the wall of the building. He complained that the trial judge did not consider the questionable areas in this case, and that therefore the guilty verdict was wrong.", "zh-HK": "申請人指控方證人根本不可能觀察到他爬水渠的動作，而控方亦沒有其他科學證據支持針對他的控罪。他強調涉案樓宇水渠位沒有他的鞋印，亦沒有證據證明他身上的衣物和該樓宇的水喉或牆壁有任何接觸。申請人指原審法官沒有考慮案件的疑點，故將他定罪的裁決是錯誤的。" } }, { "doc_id": 34, "seg_id": 27, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 34, "seg_id": 28, "translation": { "en": "Since the applicant did not give any evidence at the trial, nor did he call any witness, what the verdict would be was mainly dependent on the veracity and accuracy of the evidence of the police officers. If the evidence of the police officers (particularly PC 12073) was true and accurate, it would be sufficient to prove that the applicant did climb up to the 1st floor of no. 23 Bisney Road and that he did tamper with a window with his hand. Such acts of the applicant were sufficient to constitute attempted burglary.", "zh-HK": "由於申請人在原審時沒有作供，亦沒有傳召證人作供，案件的裁決主要建基在控方警員的證供是否真確。如控方警員（特別是警員12073）的證供真確，則足以證明申請人有攀爬上碧荔道23號一樓，並用手“攪”窗戶。申請人的上述行為足以構成企圖“爆竊”罪。" } }, { "doc_id": 34, "seg_id": 29, "translation": { "en": "At the trial, counsel for the applicant did point out to the court evidence and views favourable to the applicant.", "zh-HK": "原審時，申請人的代表大律師有向法官力陳對申請人有利的證據及看法。" } }, { "doc_id": 34, "seg_id": 30, "translation": { "en": "The trial judge did consider carefully the prosecution evidence and submissions made by the two sides. In the end, the trial judge found that the prosecution witnesses were honest and reliable, and that the court could safely act on their evidence.", "zh-HK": "原審法官有小心考慮控方的證據及雙方的說法。原審法官最終認定控方的證人誠實可靠，而法庭可以穩妥地根據他們的證據行事。" } }, { "doc_id": 34, "seg_id": 31, "translation": { "en": "The verdict in this case is entirely based on the findings of fact made by the trial judge. The evidence against the applicant came from a number of police officers and all their evidence supports the charge preferred by the prosecution against the applicant.", "zh-HK": "本案的裁決全建基在原審法官作出的事實決定。針對申請人的證據源自多名警員。他們的證供都支持控方指控申請人的罪行。" } }, { "doc_id": 34, "seg_id": 32, "translation": { "en": "On the face of it, the trial judge had every reason to accept the prosecution witnesses’ evidence and to act on their evidence, particularly when the applicant did not give evidence or call any witness to contradict, undermine or explain the prosecution evidence against him.", "zh-HK": "表面上原審法官絕對有理由接納控方證人的證供及根據該些證供行事，特別是當申請人沒有作供，或傳召證人作供，以反駁、削弱或解釋控方針對他的證據時。" } }, { "doc_id": 34, "seg_id": 33, "translation": { "en": "The absence of scientific evidence and other supporting evidence does not mean that the court could not accept the police officers’ evidence.", "zh-HK": "沒有科學證據或其他佐證亦不表示法庭不能採納有關警員的證供。" } }, { "doc_id": 34, "seg_id": 34, "translation": { "en": "That being said, the verdict in this case is wholly founded on the trial judge’s findings about the credibility of the evidence of the police officers, especially that of PC 12073’s evidence. Therefore, the way in which the trial judge dealt which these police officers’ evidence must conform to the established legal principles.", "zh-HK": "但本案的裁決完全建基在原審法官就多名警員，特別是警員12073的證供的可信性作出裁決。因此，原審法官處理該些警員證供的方法，必須合乎既定的法律原則。" } }, { "doc_id": 34, "seg_id": 35, "translation": { "en": "One of the established legal principles is that when the court is considering the credibility and reliability of the evidence of the witnesses (including the defendant’s evidence), all evidence must be placed on the same footing. The court must not treat police officers’ evidence on the basis that police officers are less likely to tell lies (R v Culbertson (1970) 54 Crim App R 310).", "zh-HK": "既定的法律原則之一是法庭在考慮證人的證供（包括被告人的證供）的可信性及可靠性時，必須一視同仁。法庭絕對不能以警員說謊的可能性較低為基礎來處理他們的證供（R v Culbertson (1970) 54 Crim App R 310）。" } }, { "doc_id": 34, "seg_id": 36, "translation": { "en": "In Culbertson, the trial judge, in his summing up to the jury, told them not to concern themselves with the consequence of acquitting the defendant that would be suffered by the police officers who testified against the defendant, but he added that the police officers would be “finished and would be out of the police within a very short time”.", "zh-HK": "在上述Culbertson案，主審法官引導陪審團時告訴他們無需顧慮裁定被告人無罪會對作供指證他的警員造成的後果，但同時表示該些警員會“finished and would be out of the police within a very short time.”（完蛋及在短期內失業）（非官方翻譯）。" } }, { "doc_id": 34, "seg_id": 37, "translation": { "en": "The Court of Appeal of Hong Kong has all along applied the above-mentioned principle in hearing cases (see R v Wong Kim Wah & another (CACC 258/1993)).", "zh-HK": "香港的上訴法庭亦一直根據上述原則來處理案件（見R v Wong Kim Wah & another (CACC 258/1993)案）。" } }, { "doc_id": 34, "seg_id": 38, "translation": { "en": "When the trial judge was considering the credibility of the evidence of the police officers involved in this case, he emphasized that the police officers did not need to fabricate evidence to falsely accuse the applicant of attempted burglary and that they would not, for the purpose of having the applicant charged with attempted burglary, be so unscrupulous and foolish as to commit an offence which was even more serious, ie conspiracy to pervert the course of justice.", "zh-HK": "原審法官在考慮涉案警員證供的可信性時強調警員犯不著捏造證據，誣捏申請人企圖爆竊，亦不會為了檢控申請人一項企圖爆竊罪而膽敢及愚昧地干犯一項更加嚴重的串謀妨礙司法公正罪。" } }, { "doc_id": 34, "seg_id": 39, "translation": { "en": "The message conveyed by the trial judge is clear. Its meaning is that there was no incentive for the police officers to frame up the applicant, nor were they unscrupulous and foolish enough to do so. The comment made by the trial judge indicates that he thought that the police officers’ evidence was more credible than the evidence of other witnesses.", "zh-HK": "原審法官表達的信息是明確的，其含意是指警員沒有誘因，亦不會有膽和愚蠢地去誣捏申請人。原審法官的說法顯示他認為警員的證供較其他證人的證供，更具可信性。" } }, { "doc_id": 34, "seg_id": 40, "translation": { "en": "The approach adopted by the trial judge was not proper. We need to once again remind judges who hear criminal cases that they cannot consider the evidence of a witness, who is a police officer, in this way. The reason is that to consider the evidence in this way will give rise to an appearance that the defendant has not received a fair trial.", "zh-HK": "原審法官的處理方法不妥當，而本庭亦需要再一次提醒審理刑事案件的法官不能以上述方法來考慮警員證人的證供，原因是該處理方法會令人感到被告人未有獲得一個公平的審訊。" } }, { "doc_id": 34, "seg_id": 41, "translation": { "en": "The improper approach adopted by the trial judge, ie to single out the issue of the credibility of the police officers’ evidence and to deal with it in isolation, is not necessarily a material irregularity sufficiently serious for the guilty verdict given at the trial to be set aside.", "zh-HK": "主審法官將警員證人的證供的可信性議題單獨挑出來處理的不當處理方法不一定構成重要的不正常做法，足以推翻原判的有罪裁決。" } }, { "doc_id": 34, "seg_id": 42, "translation": { "en": "In fact, in Culbertson, the English Court of Appeal (Criminal Division) held that the trial judge’s comment to the jury that if they acquitted the defendant, the police officers who testified against him would be “finished and would be out of the police within a very short time” did not constitute a material irregularity sufficient to justify quashing the conviction.", "zh-HK": "事實上，在Culbertson案，英國刑事上訴法庭裁定主審法官向陪審團表示，如他們裁定被告人無罪，則表示作供針對他的警員“完蛋及在短期內失業”不構成重要的不正常做法，亦不足以推翻一項有罪的裁決。" } }, { "doc_id": 34, "seg_id": 43, "translation": { "en": "In R v Fisher (1983) Crim L.R. 486, the summing up given by the trial judge to the jury included passages to the effect that some criminal offences were more serious when committed by a certain kind of people and perjury by a police officer to secure a false conviction of an innocent person was about the most serious criminal offence a police officer could commit, and that any police officer convicted of perjury knew, and any group of police officers who conspired to give false evidence to secure a conviction against an innocent person and were convicted of conspiracy knew they would receive a very heavy sentence at the court’s hands. The English Court of Appeal reiterated that a trial judge should not put evidence given by police officers into a category different from that given by other witnesses, and should not tell the jury about the dire results which might follow from police officers telling lies, and that otherwise, the conviction would be regarded as unsafe and unsatisfactory and would be quashed.", "zh-HK": "在R v Fisher (1983) Crim L.R. 486案，主審法官引導陪審團的講辭，包括一些段落而該些段落的含義是某些人仕干犯某些罪行的後果會特別嚴重，而警員作偽證令無辜人仕被定罪更是一名警員可能干犯的罪行中最嚴重的一類，而任何警員因作偽證而被定罪應知悉，正如其他因串謀作偽證以令一名無辜人仕被定罪的警員理應知悉法庭必會對他們處以重刑。英國上訴法庭重申主審法官不應將警員的證供和其他證人的證供分類，亦不應該向陪審團提及警員說謊可能導致的極為嚴重的後果，否則有關的定罪會被視為不穩妥及不安全而要被撤銷。" } }, { "doc_id": 34, "seg_id": 44, "translation": { "en": "The guilty verdict in this case was entirely given on the basis of the credibility of the evidence of the police officers, the evidence of PC 12073 in particular. The prosecution did not adduce any supporting evidence which could show that the applicant did climb up the drainpipe to the residential unit in question and did attempt to open the window of the unit with his hand.", "zh-HK": "本案的定罪裁決基本完全建基在控方警員證人，特別是警員12073證供的可信性。控方沒有提出任何其他佐證，足以顯示申請人確有沿水渠攀爬上涉案的住宅外，及用手企圖打開該住宅的窗戶。" } }, { "doc_id": 34, "seg_id": 45, "translation": { "en": "We consider that when the trial judge committed a mistake of principle in the course of his dealing with the police officers’ evidence, with the result that the trial became unfair, the appropriate remedy is to quash the conviction.", "zh-HK": "本庭認為當原審法官處理警員證供的可信性時犯了原則上的錯誤，而導致審訊不公平時，適當的處理方法是要撤銷有關的定罪裁決。" } }, { "doc_id": 34, "seg_id": 46, "translation": { "en": "We grant the renewed application made by the applicant for leave to appeal against conviction, and allow his appeal. We quash the applicant’s conviction and set aside his sentence.", "zh-HK": "本庭批准申請人就定罪提出的更新上訴許可申請，並裁定他的上訴得直。本庭撤銷針對申請人的定罪及判刑。" } }, { "doc_id": 34, "seg_id": 47, "translation": { "en": "Mr Franco Kuan, Senior Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官關百安代表。" } }, { "doc_id": 34, "seg_id": 48, "translation": { "en": "The Applicant, acting in person, present.", "zh-HK": "申請人：無律師代表，親自應訊。" } }, { "doc_id": 35, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the reasons for the judgment of the Court):", "zh-HK": "高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 35, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 35, "seg_id": 3, "translation": { "en": "1.The applicant, Y.H.M., was charged with two counts of indecent assault. He pleaded not guilty and was tried before District Judge Kwok Wai Kin (the trial judge), who on 29 February 2016 found him guilty on both counts and on 9 March 2016 sentenced him to imprisonment for a total of 33 months. Represented by Mr Shahmim K. Khattak and Mr Anthony Lai of counsel, the applicant applied for leave to appeal against conviction and/or sentence. Having heard the matter, this Court on 23 March 2017 dismissed all applications, for reasons which we now give.", "zh-HK": "申請人（Y.H.M.）被控兩項“非禮”罪。他否認控罪並在區域法院法官郭偉健（原審法官）席前受審。2016年2月29日，原審法官裁定申請人兩項控罪都罪名成立，並於2016年3月9日判他入獄共33個月。申請人不服定罪及判刑，由林沙文及黎家傑兩位大律師代表提出申請，要求獲准就定罪及/或判刑上訴。2017年3月23日，經聆訊後，本庭駁回申請人提出的全部申請。以下是本庭的判案理由。" } }, { "doc_id": 35, "seg_id": 4, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 35, "seg_id": 5, "translation": { "en": "2.The victims in the present case were two sisters: X (“Elder Sister”) and Y (“Younger Sister”). They were born in June 1992 and November 1997 respectively. Apart from them, their parents, Mr Wong (transliteration) (“Father”) and Mrs Wong (transliteration) (“Mother”) also had a son (Tai Chai (transliteration)) who was born in July 1995.", "zh-HK": "案件的受害人是兩姊妹，X（姊姊）和Y（妹妹）。她們分別在1992年6月和1997年11月出生。她們的父母（黃先生（父親）、黃太太（母親））亦育有一名在1995年7月出生的兒子（泰仔）。" } }, { "doc_id": 35, "seg_id": 6, "translation": { "en": "3.At the material time, the five-member Wong family were residing in a unit in Lung Fung Garden, Sheung Shui. Mr and Mrs Wong started a private tuition centre (“tuition centre”) in 2007 after the former left the telecommunications company for which he had worked 27 years.", "zh-HK": "案發時，黃先生一家五口居住在上水龍豐花園一住宅。黃先生在2007年離開已工作27年的某電訊公司後和黃太太經營一補習社（該補習社）。" } }, { "doc_id": 35, "seg_id": 7, "translation": { "en": "4.Mrs Wong had three elder sisters (including Aunt Wah Wah) (transliteration), one elder brother and two younger sisters (Aunts Kum Kum and Luk Luk) (transliterations). Mrs Wong’s father had a half younger sister (Grand Aunt) with whom he had the same father but not mother. Grand Aunt’s husband was called “Grand Uncle”.", "zh-HK": "黃太太有三名姊姊（包括華華姨）、一名兄長及兩名妹妹（琴琴姨和六六姨）。黃太太的父親有一名同父異母的妹妹（姑婆），其丈夫被稱為“姑丈公”。" } }, { "doc_id": 35, "seg_id": 8, "translation": { "en": "5.Aunt Wah Wah had two daughters, Cousins Wai and Yan (transliterations). They were both younger then Elder Sister but older than Younger Sister. The applicant, being Aunt Kum Kum’s husband, was the uncle of the two victims. The couple gave birth to a son (“Ho Chai” (transliteration)) in October 1999.", "zh-HK": "華華姨有兩名女兒（慧表姐和茵表姐）。她們的年紀較姊姊少，但較妹妹大。申請人是琴琴姨的丈夫，即兩名受害人的姨丈。申請人夫婦有一名在1999年10月出生的兒子（“浩仔”）。" } }, { "doc_id": 35, "seg_id": 9, "translation": { "en": "6.The applicant and his family used to reside at another unit in Lung Fung Garden, Sheung Shui (the old unit) but moved out subsequently. The applicant’s family and the victims’ family, who were then living in the same building, had frequent dealings and gatherings.", "zh-HK": "申請人一家亦原是居住在上水龍豐花園的另一住宅（舊住宅），但他們現已搬離舊住宅。由於申請人一家和受害人一家在同一大廈居住，兩家人經常有往來及聚會。" } }, { "doc_id": 35, "seg_id": 10, "translation": { "en": "7.The prosecution case was that on a date between 13 November 2002 and 13 November 2003, the applicant indecently assaulted Younger Sister who was paying a visit to the old unit and who was then 5 years old (Charge 1). It was also the prosecution case that on a date between 2002 and 2004, the applicant indecently assaulted Elder Sister who was paying a visit to the old unit and who was then 12 years old (Charge 2).", "zh-HK": "控方指申請人在2002年11月13日至2003年11月13日的某一天，“非禮”到訪舊住宅的妹妹，當時妹妹約5歲（第一項控罪）。控方亦指申請人在2002年至2004年某一天，“非禮”到訪舊住宅，當時年約12歲的姊姊（第二項控罪）。" } }, { "doc_id": 35, "seg_id": 11, "translation": { "en": "Prosecution evidence", "zh-HK": "控方證據" } }, { "doc_id": 35, "seg_id": 12, "translation": { "en": "8.The prosecution evidence against the applicant rested mainly upon the evidence of the two sisters and the confession made by the applicant.", "zh-HK": "控方針對申請人的證據主要源自姊姊和妹妹的證供及申請人的招認。" } }, { "doc_id": 35, "seg_id": 13, "translation": { "en": "9.According to Younger Sister, one evening when she, then an upper class kindergarten schoolchild aged 5 or so, and her family visited the old unit, on the bed inside the bedroom, the applicant reached out his right palm and put it into the front of her knickers. He put his finger into her vagina and moved it about. Younger Sister said that this went on for about one minute, after which the applicant said to her, “how come your fanny is so warm”. Younger Sister said that before the applicant indecently assaulted her, Cousins Wai and Yan had been watching TV on the bed in the bedroom and it was only after they had left the room and closed the door that the applicant indecently assaulted her.", "zh-HK": "妹妹指她大約5歲，讀幼稚園高班時的某天晚上，當她和家人到該舊住宅時，申請人在睡房內的床上伸右手手掌入她的內褲的前方，並將手指伸入她的陰道後郁動手指。妹妹指申請人的動作維持約一分鐘後便向她說：“乜你啫啫咁暖嘅”。妹妹指申請人“非禮”她前，慧表姐和茵表姐是在睡房內的床上看電視，而申請人是在她們離開房間及把房門關上後才“非禮”她。" } }, { "doc_id": 35, "seg_id": 14, "translation": { "en": "10.Younger Sister said she did not understand what the applicant had said and done, nor did she know how to react, but she felt “very odd”, “very disgusted”, “very uncomfortable” and “frightened”.", "zh-HK": "妹妹指不明白申請人的言行亦不知如何反應，但她感到“好怪”、“好核突”、“好唔舒服”及“驚驚”。" } }, { "doc_id": 35, "seg_id": 15, "translation": { "en": "11.Younger Sister said that after the incident she went out of the bedroom and told Mother, who was in the sitting room, that she wanted to go home to sleep. At that time, Aunt Kum Kum and Ho Chai were also present. Younger Sister said that when they were back home she did tell Mother that the applicant had reached his hand into her knickers, although she did not give a detailed account because she felt fearful and “very odd”. Younger Sister said she did not remember how Mother reacted to what she said.", "zh-HK": "妹妹指事發後她走出睡房並向在客廳的母親說想回家睡覺。當時琴琴姨和浩仔亦在場。妹妹指返回家後，有向母親表示申請人伸手入她的褲內，但沒有交待詳情，因為她感到恐慌及“好怪”。妹妹表示不記得母親當時的反應。" } }, { "doc_id": 35, "seg_id": 16, "translation": { "en": "12.Younger Sister further said that subsequently, at Mother’s request, Aunt Kum Kum visited their home to discuss the matter. Younger Sister briefly recounted the incident to them, but Mother told her to keep quiet about it and not to pursue the matter, the reason being that a family scandal must not be made known to outsiders, otherwise the matter would affect the future of Younger Sister.", "zh-HK": "妹妹更指其後琴琴姨應母親的要求來到她們家中討論該事件。妹妹有向她們簡略覆述事件，但母親要求她息事寧人及不要追究，原因是家醜不外傳，否則事件會影響妹妹的將來。" } }, { "doc_id": 35, "seg_id": 17, "translation": { "en": "13.Younger Sister said that she did not mention the incident to other people but had always remembered it and felt “very frightened”. She said she and her elder sister agreed to be careful when they saw the applicant again and not to stay with him in the same room. Although Younger Sister often saw the applicant at family gatherings, she claimed that she no longer had contact or conversations with him and would even try her best to avoid him.", "zh-HK": "妹妹表示她沒有向其他人提及事件，但一直記得事件並因而感到“好驚”。她指和姊姊有協議當再見到申請人時要小心，不要和他共處一室。雖然妹妹因為家庭聚會而經常見到申請人，她聲稱已沒有和申請人接觸或交談，更會盡量避開他。" } }, { "doc_id": 35, "seg_id": 18, "translation": { "en": "14.Younger Sister further testified that when she was in Primary 5 or 6 she talked about this matter with “Elaine”, a social worker. Although Elaine said she could report the matter to the police for her, Younger Sister did not take further action and instead only brought up the matter again with Mother. She said Mother was “very angry” and questioned her, “what do you want now?” and also said, “It’s lucky that you kept quiet about it at that time, or else Aunt Kum Kum’s family would have collapsed”.", "zh-HK": "妹妹進一步供稱她在五、六年級時，曾向社工“Elaine”談及事件。雖然Elaine說可以幫助她報警，但妹妹沒有採取進一步行動，而只向母親重提舊事。她指母親“好嬲”，並質問她：“妳而家想點”，“好彩當時妳冇講出嚟咋，如果唔係琴琴姨頭家就散喇”。" } }, { "doc_id": 35, "seg_id": 19, "translation": { "en": "15.Younger Sister also said she learned from Elder Sister that on the evening following the incident, upon Mother’s request, Aunt Kum Kum visited their home to discuss the matter, and when Aunt Kum Kum was leaving the room, Mother said to Aunt Kum Kum: “Well, Ah Kum, the kids are growing up, you ask Ah Ming (the applicant) (transliteration) to exercise restraint” and things like that.", "zh-HK": "妹妹進一步表示從姊姊處得悉事發後當晚琴琴姨應母親的要求到她們家中討論事件後並在離開房間時，母親有向琴琴姨說：“喂，亞琴呀，啲細路大喇，妳叫阿明（申請人）收斂下啦”等說話。" } }, { "doc_id": 35, "seg_id": 20, "translation": { "en": "16.Younger Sister stressed that the matter was not an accident and that she had given an accurate account of her conversation with Mother. Younger Sister even said that when she brought the matter up again with Mother when she was in Primary 5 or 6, as she felt too embarrassed to repeat orally the words “how come your fanny is so warm” that the applicant had said, she wrote these words on a piece of paper and handed it to Mother. However, she agreed that she did not write down that the applicant had put his hand into her knickers and private parts for as long as one minute, nor did she use such words as “private parts” or “vagina” but merely used the words “the part for peeing” to describe the part of her body that had been molested by the applicant.", "zh-HK": "妹妹力稱事件並非意外造成，而她亦有準確交代和母親的對話。妹妹更表示當她在小五或小六向母親重提事件時，因為對申請人說過的“乜你啫啫咁暖嘅”這句話感到難於啟齒，故將該句說話寫在紙上交給母親。但妹妹同意沒有寫下申請人伸手入她的內褲和私處長達一分鐘這一點，亦沒有用“私處”或“陰道”等詞句；而只是以“屙殊殊嗰度”來形容被申請人侵犯的地方。" } }, { "doc_id": 35, "seg_id": 21, "translation": { "en": "17.In her correspondence with her parents, Younger Sister repeatedly asked Mother to confirm that she and Elder Sister had notified Mother very early that they had been sexually molested by the applicant, and also questioned the parents why they turned a blind eye to it. Younger Sister maintained that what happened when the applicant indecently assaulted her was “etched in her memory”.", "zh-HK": "妹妹和父母的書信往來中多次要求母親確認她和姊姊一早知會母親指曾受申請人性侵犯，並質問父母為何對事件視若無睹。妹妹堅持她對申請人“非禮”她的過程“刻骨銘心”。" } }, { "doc_id": 35, "seg_id": 22, "translation": { "en": "18.Elder Sister also said that she had also been indecently assaulted by the applicant shortly before Younger Sister was. She further said when Younger Sister complained to Mother after she had been indecently assaulted, she eavesdropped outside the room door and heard Younger Sister say that the applicant touched her private parts over the knickers, but then Mother told Younger Sister to mind what she said. Elder Sister said that as the same thing had happened to her, she rushed into the room and demanded that Mother deal with the matter.", "zh-HK": "姊姊亦指在妹妹被申請人“非禮”前不久，她亦被申請人“非禮”過。她更表示妹妹被“非禮”後向母親投訴時，她曾在房門外偷聽到妹妹說被申請人隔着底褲摸下禮，但母親卻叫妹妹不可胡亂說話。姊姊指由於相同事件曾發生在她身上，因此她衝入房內要母親處理事件。" } }, { "doc_id": 35, "seg_id": 23, "translation": { "en": "19.Elder Sister said that when Aunt Kum Kum visited their home to discuss the indecent assault on Younger Sister by the applicant, Mother said to Aunt Kum Kum that the two daughters had grown up and demanded that she tell the applicant “not to hug and hold [the girls] again as if they were kids”. In reply, Aunt Kum Kum responded by saying she would ask the applicant to be “more careful”. Elder Sister agreed that Younger Sister was not present when Mother and Aunt Kum Kum had the above conversation.", "zh-HK": "姊姊指當琴琴姨到她們家中討論申請人“非禮”妹妹一事後，母親有向琴琴姨說兩個女兒已長大，並要琴琴姨告訴申請人“唔好好似小朋友咁樣再攬攬抱抱”。琴琴姨則回應說會叫申請人“小心啲”。姊姊同意母親和琴琴姨作出上述交談時妹妹並不在場。" } }, { "doc_id": 35, "seg_id": 24, "translation": { "en": "20.Elder Sister also gave a detailed account of how she was indecently assaulted by the applicant. She said on a summer’s day when she was aged 11 or 12 and in Primary 5 or 6, she went to the old unit to ask to use the computer because her father had locked the computer at home. The applicant opened the door and let Elder Sister into the study to use the computer to do homework and the room door was kept open.", "zh-HK": "姊姊亦有詳述她被申請人“非禮”的經過。她指當她11-12歲，就讀小五、小六時的夏天某日，因家中的電腦被父親上鎖，故前往舊住宅借用電腦。申請人開門後，便讓姊姊入書房使用電腦做功課而房間保持開啟狀態。" } }, { "doc_id": 35, "seg_id": 25, "translation": { "en": "21.Elder Sister said when she was using the computer, the applicant entered the study from the sitting room, held her from behind and “touched” her “chest”. Elder Sister even described the acts the applicant did to indecently assault her, which included reaching his arms forward, passing her shoulders and then “holding” her and “touching” and “squeezing” her breast(s) with both hands. Elder Sister stressed that the case was not that the applicant’s hands reached her chest by going under her arms, but was that they reached from her shoulders down to her chest.", "zh-HK": "姊姊指當她使用電腦期間，申請人由客廳進入書房，從後抱着她並“摸”她的“胸部”。姊姊更有描述申請人“非禮”她的動作，包括伸出雙手向前，經過她的肩膊後“攬着”她及用雙手“摸”和“摙”她的乳房。姊姊強調申請人的雙手並非是從她的手臂下穿向她的胸前，而是在她的肩膊上向下到她的胸前。" } }, { "doc_id": 35, "seg_id": 26, "translation": { "en": "22.Elder Sister said at the time in question, she was wearing a vest undershirt and a short-sleeved T-shirt but not a bra.", "zh-HK": "姊姊指事發時，她穿着一件背心底衫和一件短袖T恤，但沒有穿着胸圍。" } }, { "doc_id": 35, "seg_id": 27, "translation": { "en": "23.Elder Sister stressed that she knew what the applicant did was wrong but she did not push the applicant away immediately as she did not know how to react or deal with the matter. But she later turned round, pushed the applicant’s hands away, told him that she had finished using the computer, and then left the old unit hurriedly. The applicant did not say anything at that time.", "zh-HK": "姊姊強調自己知悉申請人的行為不對，但她不知如何反應或處理，故沒有即時推開申請人。但其後她轉身推開申請人的雙手，並向他表示已用完電腦及急步離開舊住宅，而當時申請人沒有說話。" } }, { "doc_id": 35, "seg_id": 28, "translation": { "en": "24Elder Sister said that she did not tell her parents immediately because “face mattered a lot” to Mother and she had a bad relationship with Father. Elder Sister said there was a family gathering on the Sunday one week after the incident and the applicant would be there, so she told Mother about the matter on Saturday. Mother reacted by saying that the incident was a family scandal and disgrace, that it was not a good thing for Elder Sister, and that it would even break up Aunt Kum Kum’s family. Elder Sister said that she decided not to bring up the matter again but acted with deliberate care and stayed away from the applicant during family gatherings. Nor would she go to the unit alone again.", "zh-HK": "姊姊表示當時沒有即時告知父母，原因是母親“重面子”，而她和父親的關係不佳。姊姊指事發後一星期的週日有家庭聚會，而申請人會在場，故她在週六向母親講述事件。當時母親的反應是指事件是家醜及不光彩，對姊姊亦不是一件好事，更會破壞琴琴姨一家。姊姊指她決定不重提事件，但在家庭聚會時，她刻意小心及遠離申請人，亦不會再單獨前往舊住宅。" } }, { "doc_id": 35, "seg_id": 29, "translation": { "en": "25.Elder Sister contended that the matter was definitely not an accident. Further, she mentioned this indecent assault on her by the applicant in two of the pages of her diary dated 1 May 2009. The diary recorded that the applicant held her from behind and touched her chest, and that Younger Sister was also a victim. During cross-examination, Elder Sister denied that she knew full well that the applicant came into contact with her chest by accident but, after discussing with Grand Aunt and Grand Uncle, described it as an “indecent assault” before informing the police. She also denied that the diary dated 1 May 2009 was made up or newly fabricated, or that, upon relapse of a delusional disorder or mental illness, she wrote a complaint on a blank page of the diary or on a new page which she then inserted into the diary.", "zh-HK": "姊姊力稱事件絕非意外，而她更有在2009年5月1日的日記中的兩頁提及她被申請人“非禮”一事。該日記說及申請人從後抱住她及摸她的胸部，亦有說及妹妹也是受害人。在盤問時，姊姊否認明知申請人觸碰到她的胸部是意外，但她在報警前，與姑婆及姑丈公商量後將它說成“非禮”。她亦否認2009年5月1日的日記是虛構或是新近捏造的，是她在妄想症或精神病發作下在日記的空白頁寫下投訴或將投訴寫在一新頁，並將新頁加入日記簿內。" } }, { "doc_id": 35, "seg_id": 30, "translation": { "en": "26.Apart from the evidence of the sisters, the prosecution also relied on the confession which the applicant made under caution following his arrest. Regarding the allegation of having indecently assaulted the sisters, the applicant said that it was only when he was holding Younger Sister while watching TV that “the hand accidentally touched her private parts. I did not intend to touch her. I did not intend to indecently assault the two of them”. In a subsequent video-recorded interview with the police, the applicant provided further explanation. He reiterated that he only “touched her private parts by accident”, “I was holding her and, well, touched the thigh, well, the inner thigh, and then touched [it]”. The applicant also said that at the time of the incident, Younger Sister was 5 years old and he was helping Mrs Wong “look after the kid(s)”, and that when he was holding Younger Sister while watching TV, he “touched her private parts by accident” over her pants.", "zh-HK": "除了姊姊和妹妹的證供外，控方亦依賴申請人被拘捕後及在警誡下作出過的招認。被指“非禮”姊姊和妹妹時，申請人表示他只是抱着妹妹看電視時“隻手唔覺意掂到佢下體，我都無心要掂佢，我都無心‘非禮’佢地兩個”。在其後和警員的錄影會面時，申請人有再作解釋。他重申只是“唔覺意掂到佢下體”，“咁我抱住佢、咁呀掂到大髀咁呀內側咁，跟着掂到”。申請人亦指事發時，妹妹是5歲而他協助黃太太“湊細路”及當他抱着妹妹看電視時隔着褲“唔覺意掂到佢下體”。" } }, { "doc_id": 35, "seg_id": 31, "translation": { "en": "27.The applicant said that he touched the private parts of Younger Sister for a few seconds, but as he was focusing on the TV show, he was not aware of the need to withdraw his hand. He went on to explain that it was the middle finger or the little finger of his right hand that touched Younger Sister’s “sexual organ”.", "zh-HK": "申請人指掂到妹妹的下體有幾秒，但他因為掛住看電視，沒有為意要縮手。申請人更有進一步解釋是他的右手中指或尾指掂到妹妹的“性器官”。" } }, { "doc_id": 35, "seg_id": 32, "translation": { "en": "28.During the police interview, the applicant also admitted that he had held Elder Sister (who was then aged about 11) from behind and touched her chest by accident when they were playing. He said that he “liked girls, wanted to have a daughter and tried but in vain, wanted to hold her [sic] very much when seeing girls”. The applicant considered his behaviour normal as he was merely playing with them.", "zh-HK": "和警員會面時，申請人亦承認曾試過在玩耍時從後抱着當時約11歲的姊姊及唔覺意掂到她的胸部。申請人表示自己“鍾意女仔，想生個女，但追唔到，見到啲女仔呢好想抱佢”。申請人認為他的舉動正常，原因是他只是和她們玩耍。" } }, { "doc_id": 35, "seg_id": 33, "translation": { "en": "29.The applicant said he knew that Younger Sister had complained to Mother and senior members of the family about the aforesaid incident, and he had even been “cautioned” and “scolded” by family member(s) as a result of such complaint, and so he thought that was the end of the matter.", "zh-HK": "申請人表示他知悉妹妹就上述事件有向母親及長輩投訴，而他更因為妹妹的投訴而被家人“警誡”及“鬧過”，令他認為事件已完結。" } }, { "doc_id": 35, "seg_id": 34, "translation": { "en": "30.Although the charges were straightforward and the evidence against the applicant not complicated, the trial was very long as the sisters were cross-examined on some ancillary issues by both parties. And in order to address those issues, it was necessary for the trial judge to write, as he did, Reasons for Verdict which ran to over 100 pages.", "zh-HK": "雖然控罪性質簡單，而針對申請人的證據亦不複雜。但原審時，雙方就一些附帶性的議題向姊姊和妹妹提出盤問，導致極長的審訊；而為處理這些議題，原審法官需要撰寫一份超過100頁的裁決理由書。" } }, { "doc_id": 35, "seg_id": 35, "translation": { "en": "31.Both sisters said that the two of them and Tai Chai had been physically abused and improperly treated by their parents when they were kids. The sisters said Father often inflicted violence on them for various reasons, thereby causing them injuries, but Mother defended Father and demanded that family scandal must not be made known outside the family. They said that Elder Sister even covered with clothes the marks of injuries caused by the physical abuse in order to ensure that the matter would not come to light.", "zh-HK": "姊姊和妹妹都表示童年時，她們和泰仔都受到父母的虐打和不當的對待。她們指父親經常以不同理由向她們施暴，令她們受傷，而母親則維護父親及要令家醜不外傳。她們更指姊姊以衣服遮蓋身上被虐打的傷痕，確保事件不會曝光。" } }, { "doc_id": 35, "seg_id": 36, "translation": { "en": "32.They said that apart from frequently subjecting them to physical punishment and verbal abuse, Father also supervised them strictly and disrespected their privacy, including restricting and monitoring the use by them of the computer and checking their Internet browsing records. They said that not only did Mother defend Father’s improper conduct by all means but even asked them to make allowances for Father.", "zh-HK": "她們指父親除了經常體罰和用粗言責駡她們外，亦對她們施行嚴密的監管及不尊重她們的私隱，包括限制及監視她們使用電腦及查閱她們的上網記錄。她們指母親處處維護父親的不當行為，更要她們體諒父親。" } }, { "doc_id": 35, "seg_id": 37, "translation": { "en": "33.Elder Sister admitted that when she had grown up, she refused to accept Father’s violent behaviour and would even fight back when being attacked. As a result, their relationship was extremely poor.", "zh-HK": "姊姊承認她年長後，不接受父親的暴力行為，更會在遇襲時還手，導致雙方關係極為惡劣。" } }, { "doc_id": 35, "seg_id": 38, "translation": { "en": "34.Both sisters mentioned an incident that happened on 17 September 2012. Elder Sister said that it started off when she spilled a bag of rice by accident and had a row with Mother about cleaning up. She then went back to her room and shut the door. But Father kept knocking on the door and then even kicked the door open, pulled her from the bed down to the floor, and dragged her out to the sitting room. She was injured as a result. Elder Sister agreed that she would lose control and fight back when being attacked by her parents and Tai Chai.", "zh-HK": "姊姊和妹妹都有述及發生在2012年9月17日的事件。姊姊指該事件源自她不小心將一袋米打瀉，因收執問題和母親發生激烈衝突。其後她返回房間及將門關上，但父親不斷敲門，其後更踢開門及將她從床上扯落地下後，將她拖出大廳，導致她受傷。姊姊同意自己在父母及泰仔襲擊下也會失控而還手。" } }, { "doc_id": 35, "seg_id": 39, "translation": { "en": "35.The incident eventually necessitated the intervention of Grand Aunt and Grand Uncle. They discovered that Mr Wong had recorded the scenes of violence between Elder Sister and Mother. After Mr and Mrs Wong left the unit, Grand Aunt and Grand Uncle suggested that Elder Sister move into a storeroom inside the tuition centre. But as it took time to clean up the place, Elder Sister decided to reside with Grand Aunt and Grand Uncle in the meantime.", "zh-HK": "事件最終要姑婆和姑丈公的介入。他們發現黃先生拍下姊姊和母親動武的情況。在黃先生和太太外出後，姑婆和姑丈公建議姊姊入住該補習社的一個士多房，但因清潔需時，故姊姊決定搬往姑婆和姑丈公家中暫住。" } }, { "doc_id": 35, "seg_id": 40, "translation": { "en": "36.In the end, Elder Sister lived at the home of Grand Aunt for over half a year. Elder Sister said she neither wanted to see her parents nor had contact with them, and neither her parents nor Mother’s elder sister had contacted her, although she received from time to time soup that Mother prepared. Elder Sister said during that time she disclosed the indecent assault to Grand Aunt and Grand Uncle but did not take any action.", "zh-HK": "結果姊姊在姑婆家中居住了超過半年。姊姊指她不想見父母亦沒有和他們接觸，而父母和姨媽都沒有聯絡她，但她有收到母親的湯水。姊姊表示期間她有將“非禮”事件向姑婆及姑丈公透露，但沒有採取行動。" } }, { "doc_id": 35, "seg_id": 41, "translation": { "en": "37.Younger Sister also recounted how the police became involved in the matter. Younger Sister said Mother did not let other people know that Elder Sister had moved in with Grand Aunt, and it was only after half a year that she told Aunt Kum Kum about it. Mother’s elder sisters then began a frantic search for Elder Sister who, however, refused to take their phone calls. On 30 March 2013, Elder Sister agreed that Aunt Kum Kum could bring her soup, but Aunt Kum Kum went to look for Elder Sister with her parents without informing her and Grand Aunt and Grand Uncle of this in advance.", "zh-HK": "妹妹亦有述及事件導致警員介入的經過。妹妹指母親沒有讓他人知悉姊姊搬到姑婆家居住，直至半年後才將事件告知琴琴姨。其後各姨媽開始瘋狂地搜尋姊姊，但她拒絕接聽她們的電話。2013年3月30日，姊姊同意琴琴姨送湯給她，但琴琴姨卻在沒有知會姊姊和姑婆及姑丈公下，和父母一起前往找姊姊。" } }, { "doc_id": 35, "seg_id": 42, "translation": { "en": "38.Younger Sister came to know about this and informed Elder Sister and Grand Aunt. As a result, Elder Sister hid herself up on the podium of the building to hide from them, while Aunt Kum Kum and their parents had a heated argument with Grand Aunt and Grand Uncle. In the end, the police intervened.", "zh-HK": "妹妹知悉情況後，知會姊姊和姑婆，導致姊姊在大廈平台躲避，而琴琴姨和父母則和姑婆和姑丈公發生激烈爭執，最終導致警員介入。" } }, { "doc_id": 35, "seg_id": 43, "translation": { "en": "39.Younger Sister said that Father was emotionally unstable after returning home, and she feared that her having tipped off Elder Sister would cause Father to take follow-up action and inflict violence on her. She therefore decided to spend the night at Aunt Kum Kum’s place. Younger Sister stressed that she slept with the room door locked as she was afraid of the applicant.", "zh-HK": "妹妹指父親回家後情緒不穩，而她害怕向姊姊通風報信一事會令父親追究及會向她動粗，故決定前往琴琴姨家中過夜。妹妹強調因害怕申請人而在睡覺時鎖上房門。" } }, { "doc_id": 35, "seg_id": 44, "translation": { "en": "40.The following day, Aunt Kum Kum and Aunt Luk Luk went with Younger Sister to Grand Aunt’s place, and the two sisters told them the problems which had existed all along at home. They said that Father was mentally ill and physically abused them, but Mother’s elder sisters did not agree and even said that it was for the sisters’ own good that Father beat them up.", "zh-HK": "翌日，琴琴姨、六六姨帶同妹妹前往姑婆家，而兩姊妹向她們透露家中一直存在的問題。她們指父親有精神問題及虐打她們，但各姨媽都不認同更指父親打她們是為了她們好。" } }, { "doc_id": 35, "seg_id": 45, "translation": { "en": "41.Younger Sister then returned to Aunt Kum Kum’s place. As she feared there might be pinhole cameras in the toilet and rooms, she searched for them as instructed by Grand Uncle, but could not find any. In the end, Younger Sister decided to go to the clubhouse of Lung Fung Garden to take a shower instead of taking it at home.", "zh-HK": "其後妹妹返回琴琴姨的家中，但因為害怕廁所和房間有針孔鏡頭，故按姑丈公的指示尋找，但找不到。最終妹妹仍決定前往龍豐花園的會所，而不在家中洗澡。" } }, { "doc_id": 35, "seg_id": 46, "translation": { "en": "42.Younger Sister said before she went for a shower, Father called and said that he had made an appointment with a psychiatrist. Having met a social worker, she said she was unwilling to see a psychiatrist. However, Aunt Kum Kum said Younger Sister had agreed to do so and should not change her mind and “make use of” the social worker. Once again, the police were brought in to deal with the matter eventually, and the conclusion was that no one could compel Younger Sister to visit a doctor. In the end, Younger Sister left Aunt Kum Kum’s place and went to Grand Aunt’s home to stay with Elder Sister, one of the reasons being that she was at odds with Aunt Kum Kum because of some other matters and Aunt Kum Kum even called Grand Uncle a “vermin”.", "zh-HK": "妹妹指前往洗澡前，父親來電表示約見了精神科醫生。妹妹見過社工後表示不願意見精神科醫生，但琴琴姨指她曾同意，故不應改變主意及用社工“過橋”。事件最終亦導致警員介入，而結論是無人可以強迫妹妹去看醫生。最後妹妹離開琴琴姨家，前往姑婆家和姊姊一起，原因之一是她因其他事件和琴琴姨不和，琴琴姨更指姑丈公是“害人精”。" } }, { "doc_id": 35, "seg_id": 47, "translation": { "en": "43.Younger Sister said Grand Aunt learned about her having been indecently assaulted by the applicant through Elder Sister. Grand Aunt took the view that they should fend for themselves and said that the matter was through no fault of theirs and was not something that could never be disclosed. Grand Aunt told the sisters that they could report the matter to the police and she would respect their decision although it was not an easy one to make. In the end, having discussed the matter between themselves, the sisters decided to make a report to the police and recount what happened when being indecently assaulted by the applicant.", "zh-HK": "妹妹指姑婆透過姊姊知悉她被申請人“非禮”一事。姑婆認為她們要為自己做點事，並指出事件不是她們的錯造成，亦非不可以說出來。姑婆向兩姊妹表示她們可以報警，而她亦會尊重她們的決定，雖然該決定並不簡單。結果，兩姊妹經商量後，決定前往警署報案，道出被申請人“非禮”的經過。" } }, { "doc_id": 35, "seg_id": 48, "translation": { "en": "44.Grand Aunt said in her testimony that she was a registered social worker. She recounted what happened during the time when Elder Sister moved in with her in September 2012. She said that on one occasion when she took a stroll with Elder Sister, she mentioned that she had been indecently assaulted by the applicant. Grand Aunt also described what happened before the two sisters reported the matter to the police on 3 April 2013.", "zh-HK": "姑婆作供時表示她是一名註冊社工。她述及2012年9月姊姊搬往她家居住的情況。姑婆指有一次和姊姊散步時，姊姊提及曾被申請人“非禮”。姑婆亦說及2013年4月3日姊姊和妹妹報警前發生的事情。" } }, { "doc_id": 35, "seg_id": 49, "translation": { "en": "45.She went on to say that on the morning of 3 April 2013, she received a phone call from Younger Sister, and as she kept weeping over the phone, Grand Aunt instructed Grand Uncle to go to check on her. She later understood that Younger Sister was at Sheung Shui Integrated Family Service Centre and Mr Wong and Aunt Kum Kum were compelling her to see a psychiatrist, and the matter led to intervention by the police. That evening, Younger Sister showed up at Grand Aunt’s home and indicated that she felt frightened and unsafe. Elder Sister then told her that both sisters had been indecently assaulted by the applicant, and she said they could consider whether or not to report the matter to the police. Grand Aunt agreed that before they made a report to the police on 3 April 2013, the two sisters had not told her the details of the matter, and that she was not present when statements were being taken from them. Grand Aunt indicated that she came to learn about the facts of the indecent assault only on 11 April 2013 when she accompanied Younger Sister to an interview by a social worker. Grand Aunt denied having abetted the two sisters to describe what was accidental physical contact as indecent assault.", "zh-HK": "姑婆續稱，2013年4月3日早上，因妹妹致電她後一直哭泣，故指示姑丈公去看妹妹的情況，其後她理解妹妹在上水綜合家庭服務中心，而黃先生和琴琴姨強逼她看精神科醫生，事件導致警方介入。當晚，妹妹在姑婆家出現，並表示感到害怕及不安全。其後，姊姊向她表示自己和妹妹都曾被申請人“非禮”，她則說她們可以考慮是否報警。姑婆同意2013年4月3日，姊姊和妹妹報警前，並沒有告訴她事件的詳情，而她們錄口供時，自己亦不在場。姑婆表示到2013年4月11日，她陪同妹妹接受社工會面，才知道她被“非禮”一事的案情。姑婆否認有教唆姊姊和妹妹將意外的身體觸碰說成“非禮”。" } }, { "doc_id": 35, "seg_id": 50, "translation": { "en": "Defence case and evidence", "zh-HK": "辯方的立場和證據" } }, { "doc_id": 35, "seg_id": 51, "translation": { "en": "46.The defence denied that the applicant had indecently assaulted the two sisters. The defence case was that the applicant might have had some physical contact with them, but that contact was accidental, and the applicant had no indecent intent at the time in question.", "zh-HK": "辯方否認申請人有“非禮”過受害人兩姊妹。辯方指申請人可能有和她們有過一些身體接觸，但該些身體接觸是意外造成，而當時申請人是沒有猥褻意圖的。" } }, { "doc_id": 35, "seg_id": 52, "translation": { "en": "47.The defence even alleged that both sisters were mentally ill, and that the allegations they made against the applicant were the result of delusional disorders and/or lies and therefore completely unreliable or incredible.", "zh-HK": "辯方更指受害人兩姊妹均患有精神病，而她們針對申請人的指控源自她們的妄想及/或謊言，因此全不可靠或可信。" } }, { "doc_id": 35, "seg_id": 53, "translation": { "en": "48.The defence submitted that both sisters had a normal and happy childhood but subsequently suffered from persecutory delusion which developed into “shared delusional disorder” (“SDD”). The defence further contended that, with a view to breaking up the family of the two victims, Grand Aunt and Grand Uncle exercised undue influence over them, and this caused them to suffer from mental illness, and delusions that they had been physically abused and improperly treated by their parents, which eventually led to a breakdown of their relationship with their parents and their running away from home. And their mental illness, it was submitted, had deluded them into believing that they had been indecently assaulted by the applicant, as a result of which they made false accusations against him.", "zh-HK": "辯方指姊姊和妹妹的童年生活正常及快樂，但後來患上被害型妄想症，及轉變為“共有性妄想症”。辯方更認為姑婆和姑丈公為了破壞兩名受害人的家庭完整，而對她們施以不當影響，導致她們患上精神病，妄想曾受父母虐打和不當對待，最終導致她們和父母關係破裂及離家出走。而她們的精神病亦令她們妄想曾被申請人“非禮”，故對他作出不實的指控。" } }, { "doc_id": 35, "seg_id": 54, "translation": { "en": "49.According to Dr Wong Chung Kwong (“Dr Wong”), expert witness for the defence, it was highly unlikely, on the basis of the theory of cognitive development, that Younger Sister could recall clearly what happened when she was 5 years old, and the allegation that she had been indecently assaulted by the applicant was a statement which stemmed from her persecutory delusion. The defence also relied on the explanation he gave in the post-recorded statement, namely that the incident was caused by accident.", "zh-HK": "辯方根據專家證人黃重光醫生（黃醫生）的說法指從認知發展理論，妹妹能清晰回想5歲時發生的事件的可能性極低，而她指被申請人“非禮”一事是基於她所患的被害型妄想症衍生出來的描述。辯方亦依賴他在補錄供詞時所作的解釋，指事件是意外造成。" } }, { "doc_id": 35, "seg_id": 55, "translation": { "en": "50.However, the applicant did not give evidence for himself. He only called Mr Wong and Cousin Wai to give evidence in order to rebut the evidence of Elder Sister, Younger Sister and Grand Aunt. The applicant also called Dr Wong to try to convince the court that the two sisters had delusional disorders and hence their evidence was not reliable.", "zh-HK": "但申請人沒有作供自辯，他只是傳召黃先生和慧表姐作供以反駁姊姊、妹妹和姑婆的證供。申請人亦有傳召黃醫生作供以說服法庭相信姊姊和妹妹有妄想症，因此她們的證供是不可靠的。" } }, { "doc_id": 35, "seg_id": 56, "translation": { "en": "51.In her testimony, Cousin Wai disagreed with the allegations made by the two sisters against the applicant. Her position was that, based on her observations, the applicant could not have had any opportunity to indecently assault the two sisters, the reason being that Younger Sister had never been on the bed with the applicant inside the room with its door closed. She said that in 2007, the only place at home where there was a TV set was the sitting room. She said it was not correct to say, as Younger Sister did, that the three cousins had sat together on the bed of the applicant and that Younger Sister was in the end left behind in the room with the applicant. Further, there was no TV set or computer inside the room at the time in question. Cousin Wai said, based on her observations, the two victims and Tai Chai enjoyed a harmonious relationship with their parents and the relatives were close to each other. She stressed that she had never seen any marks from injuries on the two victims or Tai Chai, nor had she heard the two sisters complain about having been physically abused by the parents. However, she indicated that she did not know why the two victims had broken up with their family.", "zh-HK": "慧表姐作供時否定姊姊和妹妹對申請人的指控。慧表姐的立場是據她的觀察，申請人根本沒有機會做出“非禮”姊姊和妹妹的行為。原因是妹妹未試過在房門更關上時和申請人一起在床上。她指2007年，家中只有客廳有擺放電視。她指妹妹說她們三表姐妹曾一起坐在申請人的床上，而最後留下妹妹和申請人在房的說法不正確，而事發時房間內更沒有電視或電腦。慧表姐亦指根據她的觀察，兩名受害人及泰仔和父母的關係融洽，而各親戚的關係亦密切。她強調從來沒有見過兩名受害人或泰仔身上有傷痕，亦沒有聽過她們投訴曾受父母虐打，但慧表姐表示不知悉兩名受害人和家庭破裂的原因。" } }, { "doc_id": 35, "seg_id": 57, "translation": { "en": "52.Cousin Wai further said that the applicant was of good character and got along well with kids. She said she had been in contact with the applicant ever since she was a kid and had never felt she had been indecently assaulted by him. She firmly believed that the applicant would not indecently assault the two sisters.", "zh-HK": "慧表姐更指申請人品格良好，和小朋友玩得來。她表示自少至大都有和申請人接觸，而她從來沒有感覺到申請人有“非禮”她。她堅信申請人不會“非禮”姊姊和妹妹。" } }, { "doc_id": 35, "seg_id": 58, "translation": { "en": "53.In his evidence, Mr Wong admitted that he had only used corporal punishment on Elder Sister and Tai Chai but never on Younger Sister. He considered that, as Elder Sister was the eldest of the three children, he would usually use corporal punishment on her when the children quarrelled, and the corporal punishment used on Tai Chai had mostly to do with his grades at school. Mr Wong denied having ever caused injuries to the children in using corporal punishment on them or beaten them with any objects.", "zh-HK": "黃先生作供時承認只有體罰姊姊和泰仔，而沒有體罰過妹妹。他認為姊姊年紀最長，故當子女有爭執時，他通常會罰姊姊，而體罰泰仔則和他的學業成績有關。黃先生否認體罰子女時，試過令她們受傷，亦否認有用過任何物件毆打子女。" } }, { "doc_id": 35, "seg_id": 59, "translation": { "en": "54.Mr Wong also denied having unreasonably restricted the victims in their use of the computer or improperly invaded their privacy.", "zh-HK": "黃先生亦否認有不合理地限制受害人使用電腦或不當地侵犯她們的私隱。" } }, { "doc_id": 35, "seg_id": 60, "translation": { "en": "55.Mr Wong admitted that he had sworn in the presence of his children, but said that this was for the purpose of venting his feelings and not scolding the children. However, he admitted that he had “very occasionally” sworn at the children when they were naughty.", "zh-HK": "黃先生承認曾在子女面前說粗口，目的只是抒發情緒，而非責駡子女，但他承認在“好偶然”的情況下，曾向頑皮的子女說粗口。" } }, { "doc_id": 35, "seg_id": 61, "translation": { "en": "56.Mr Wong thought that the victims had a happy childhood. He also recounted in detail the row which arose from Elder Sister spilling rice on 17 September 2012. He said Elder Sister blamed Younger Sister for having caused the incident, and so she rushed to Younger Sister’s room to scold her with intent to attack her and also swore at Tai Chai. Later, Elder Sister even swore at Mother and had a clash with her. Mr Wong denied having inflicted violence upon Elder Sister, and said that she even lost control because he used a phone to record her improper behaviour. This in the end caused Grand Aunt and Grand Uncle to step in to conciliate between the parties and also caused Elder Sister to move in with them.", "zh-HK": "黃先生認為受害人的童年是愉快的。黃先生亦有詳述2012年9月17日，因姊姊倒瀉米而引致的糾紛。他指姊姊指責妹妹造成事件，故衝向妹妹的房間責駡和意圖襲擊她及以粗口駡泰仔。其後姊姊更用粗口駡母親及和她有肢體衝突。黃先生否認有向姊姊動武，而姊姊更因他用電話攝錄她的不當行為而失控，最終導致姑婆和姑丈公前來調停及姊姊搬去他們的家中居住。" } }, { "doc_id": 35, "seg_id": 62, "translation": { "en": "57.In order to avoid Elder Sister having to live with Grand Uncle for a long period of time, Mr Wong arranged for one of the rooms in the tuition centre to be Elder Sister’s place of residence, but he had no idea whether Elder Sister had lived there. He admitted that he arranged for someone to change the lock of that room on 2 April 2013 to take back control over that room.", "zh-HK": "黃先生指為了避免姊姊長時間和姑丈公相處，故安排該補習社其中一間房間作為姊姊居住的地方，但他不知悉姊姊是否曾入住。他承認在2013年4月2日找人換了房間的鎖，取回該房間的控制權。" } }, { "doc_id": 35, "seg_id": 63, "translation": { "en": "58.Mr Wong said he had not heard from Elder Sister between 17 September 2012, the date she left the family, and 30 March 2013. Mr Wong also described what led to serious conflict between the two parties on 30 March 2013 when he went with his wife and Aunt Kum Kum to Grand Aunt’s place to look for Elder Sister.", "zh-HK": "黃先生指出姊姊自2012年9月17日離開家庭後至2013年3月30日都沒有聽過她的聲音。黃先生亦述及在2013年3月30日，他和太太及琴琴姨前往姑婆家找姊姊時，如何導致雙方發生嚴重衝突。" } }, { "doc_id": 35, "seg_id": 64, "translation": { "en": "59.Mr Wong pointed out that on 31 March 2013 he learned for the first time that he was said to be mentally ill, and the two sisters also believed this to be true. He said he noticed that evening that Younger Sister looked scared and this prompted him to consider it necessary to seek help from a psychiatrist. As a result, he made three appointments on 2 April 2013 with Dr Tsang Fan Kwong for himself and the two victims to be medically examined the following day. But the two victims did not turn up and, in the evening of the same day, made a report to the police complaining that they had been indecently assaulted by the applicant.", "zh-HK": "黃先生指在2013年3月31日，首先知悉有人指他患有精神病，而受害人兩姊妹亦相信該說法。黃先生指當天晚上，他發現妹妹神情驚慌，令他認為需要找精神科醫生協助。結果他在2013年4月2日和曾繁光精神科醫生替自己和兩名受害人作出三個預約在翌日接受醫生檢查。但兩名受害人沒有出席更在當天晚上報警指被申請人“非禮”。" } }, { "doc_id": 35, "seg_id": 65, "translation": { "en": "60.Mr Wong agreed that after he knew the victims had made a police report on 3 April 2013, he made enquiries with Mrs Wong and learned that Younger Sister had back then complained to Mrs Wong that the applicant had come into contact with the part of Younger Sister’s body for “peeing” and Mrs Wong had sought clarification from Aunt Kum Kum and the applicant. Mrs Wong’s understanding was that the applicant “had inadvertently had one contact” with Younger Sister when playing with her. When he enquired with Elaine Tsang, the social worker at school, she indicated that Younger Sister had not told her about that incident.", "zh-HK": "黃先生同意當他知悉受害人在2013年4月3日報警後，他有向黃太太查問並得知妹妹當年曾經向黃太太投訴被申請人碰到“屙殊殊”的地方，而黃太太亦有向琴琴姨和申請人澄清。黃太太的理解是申請人和妹妹玩耍時“唔覺意碰一碰”。當他向學校社工Elaine Tsang查問時，Elaine Tsang表示妹妹沒有告訴過她該事件。" } }, { "doc_id": 35, "seg_id": 66, "translation": { "en": "61.To support the suggestion that the victims had “delusional disorders”, the defence called Dr Wong to testify. Dr Wong had not seen either of the two sisters, less so examined them. Based on information he had obtained on the two sisters, he prepared a number of reports which pointed out that the two sisters were suffering from the rarely seen SDD.", "zh-HK": "為了支持受害人患有“妄想症”這說法，辯方傳召精神科黃醫生作供。黃醫生沒有見過姊姊和妹妹，更沒有檢驗過她們。他是根據取得和她們有關的資料，先後準備了多份報告指姊姊和妹妹患了罕見的“共有性妄想症”。" } }, { "doc_id": 35, "seg_id": 67, "translation": { "en": "62.Dr Wong’s first four reports, dated 27, 28, 29 January 2014 and 15 February 2014 respectively, related to Mr Wong and the two sisters. In the first report, Dr Wong confirmed that Mr Wong was not suffering from mental illness; the second report, on the other hand, stated a confirmed diagnosis that Younger Sister was suffering from persecutory delusions and also SDD. In his third report, Dr Wong made a preliminary diagnosis that Elder Sister was very likely to be suffering from a delusional disorder, in particular SDD, but added that he had to obtain and study Elder Sister’s diary before he would prepare a report of confirmed diagnosis. The fourth report showed Dr Wong’s diagnosis that Elder Sister was also suffering from persecutory delusions and also SDD.", "zh-HK": "黃醫生首四份報告涉及黃先生和姊姊及妹妹，日期分別是2014年1月27、28、29日和2014年2月15日。在第一份報告，黃醫生確認黃先生沒有患精神病，但在第二份報告，黃醫生已確診妹妹患有被害型妄想症，且是共有性妄想症。在第三份報告，黃醫生初步診斷姊姊極可能患有妄想症，尤其是共有性妄想症，但他補充要取得姊姊的日記研究後再撰寫確診報告。第四份報告顯示黃醫生診斷姊姊亦患有被害型妄想症，且是共有性妄想症。" } }, { "doc_id": 35, "seg_id": 68, "translation": { "en": "63.Shortly before the trial commenced on 17 February 2014, the defence provided the prosecution with Dr Wong’s first four psychiatric reports in respect of Mr Wong and the two sisters. With the consent of both parties, the trial judge first heard the evidence of the two sisters and then adjourned the case to enable the prosecution to prepare its own expert evidence. The judge also gave leave to Dr Wong to stay in court to observe the two sisters when they gave evidence. Subsequently, the defence obtained the transcript of the evidence given by the two sisters, and in early June, Dr Wong compiled two supplemental reports on the sisters which quoted part of their evidence.", "zh-HK": "案件在2014年2月17日開審前不久，辯方將黃醫生的首四份關於黃先生、姊姊和妹妹的精神報告提供給控方。在雙方同意下，原審法官先聽取姊姊和妹妹的證供，再押後案件讓控方準備專家證供。原審法官亦批准黃醫生在法庭內觀察姊姊和妹妹作供的情況。其後，辯方取得姊姊和妹妹的證供謄本，而黃醫生在6月初撰寫了姊姊和妹妹的兩份補充報告，內容引用了姊姊和妹妹的部分證供。" } }, { "doc_id": 35, "seg_id": 69, "translation": { "en": "64.By the time the factual witnesses for both parties had finished giving evidence, the prosecution had still to engage an expert. For that reason, Dr Lai Tai Sum Tony (Dr Lai), expert witness for the prosecution, did not get to observe the sisters giving evidence.", "zh-HK": "控辯雙方的事實證人作供完畢時，控方尚未聘用專家，故控方的專家證人黎大森醫生（黎醫生）沒有觀察到姊姊和妹妹作供的過程。" } }, { "doc_id": 35, "seg_id": 70, "translation": { "en": "65.Dr Lai compiled his first expert report on 13 October 2014. When the trial resumed on 14 October 2014, the defence objected to Dr Lai giving evidence by way of rebuttal and took the view that the prosecution should reopen its case for Dr Lai to testify. The defence stressed that they had already informed the prosecution two weeks prior to the trial that they were going to call Dr Wong, and had delivered the reports to the prosecution before the trial commenced. The defence submitted that, as Dr Wong’s evidence neither came unexpected nor arose ex improviso, so the prosecution was not entitled to adduce rebuttal evidence after the defence had closed its case. The defence cited cases such as R v Days [1940] All ER 402 and R v Scott (1984) 79 Cr App R 49 to support its position.", "zh-HK": "黎醫生在2014年10月13日撰寫了第一份專家報告。2014年10月14日重新開庭時，辯方反對黎醫生以反駁證供方式作供。辯方認為控方應重開案情，由黎醫生先作供。辯方強調，他們在開審前兩星期已通知控方他們將傳召黃醫生，並在審訊前已將報告交給控方。辯方認為黃醫生的證供並非未能預計或突如其來(arose ex improviso)，故控方無權在辯方結案後提出反駁證供。辯方援引R v Days [1940] All ER 402及R v Scott (1984) 79 Cr App R 49等案支持該立場。" } }, { "doc_id": 35, "seg_id": 71, "translation": { "en": "66.The trial judge did not accept the defence argument. He pointed out that in Days, the prosecution alleged that the defendant had forged the signature on the cheque, and therefore the evidence of the handwriting expert that the signature was a forgery went to one of the elements of the offence that the prosecution had to establish. The trial judge pointed out that in the present case it was not necessary for the prosecution to prove that the sisters were not mentally ill because it was not an element of the offence charged against the applicant. He stressed that before Dr Wong testified, there was no evidence whatsoever to indicate that the sisters were mentally ill, and therefore the defence must first discharge the burden of proving that they were mentally ill and hence their evidence was not credible or reliable.", "zh-HK": "原審法官不接納辯方的立場，並指出Days案中控方指被告人冒簽支票，故證明冒簽的筆跡專家的證供是控方要證明控罪的元素之一。原審法官指出在本案控方不需要證明姊姊和妹妹沒有患上精神病，原因是該事項並非是控罪的罪行元素之一。原審法官強調，在黃醫生作供前，沒有任何證據支持姊姊和妹妹患有精神病，因此辯方須先履行其舉證責任，顯示她們患有精神病，導致她們的證供不可信或不可靠。" } }, { "doc_id": 35, "seg_id": 72, "translation": { "en": "67.The trial judge in the end held that Dr Wong should give evidence first, and having heard such evidence Dr Lai would be allowed to give rebuttal evidence. The trial judge also directed that Dr Wong could stay in court to listen to such evidence and/or points as Dr Lai might give. If Dr Lai mentioned any point either not contained in his reports or not put to Dr Wong via cross-examination by the prosecution, the defence could apply to call Dr Wong again to give evidence and make additional comments on such new evidence and/or point.", "zh-HK": "原審法官最終裁定黃醫生要先作供，而黎醫生可以聆聽黃醫生的證供後提出反駁證供。原審法官亦指示黎醫生作供時，黃醫生可以在庭內聆聽其證供及/或論點。如黎醫生提及某些沒有記載在他的報告，或沒有透過主控的盤問向黃醫生提出的論點時，辯方可以申請重召黃醫生就該些新證供及/或論點再次作供及作出補充。" } }, { "doc_id": 35, "seg_id": 73, "translation": { "en": "68.Thereafter, based on the relevant transcripts of evidence, Dr Wong produced two supplemental reports. Dr Wong not only confirmed his previous confirmed diagnosis on the two sisters, but even stated that Grand Aunt and Grand Uncle had, by exercising undue influence, caused the two sisters to suffer from delusional disorders, and this, Dr Wong stated, was serious mental ill-treatment of them.", "zh-HK": "其後，黃醫生再根據有關證供的謄本，作出兩份補充報告。黃醫生不但確認他較早前對姊姊和妹妹的確診，更指姑婆和姑丈公有透過不當影響令她們患上妄想症，是對她們的嚴重精神虐待。" } }, { "doc_id": 35, "seg_id": 74, "translation": { "en": "69.In his report dated 13 October 2014, Dr Lai stated that the information quoted by Dr Wong in his reports was fragmented and incomplete, and further that Dr Wong had taken an unprofessional and improper approach in failing to take all the necessary steps for psychiatric assessment of the sisters. Dr Wong responded to the Dr Lai’s criticisms by way of a supplemental report which also set out his personal background, clinical and expert experience and the international recognitions, with a view to strengthening the credibility of his opinions. Dr Lai also compiled a supplemental report in respect of Dr Wong’s said response.", "zh-HK": "黎醫生撰寫日期為2014年10月13日的報告，指黃醫生在其報告中引述的資料零碎不全、更沒有對姊姊和妹妹進行全部必需的精神科評估步驟，做法不專業亦不恰當。其後，黃醫生以補充報告回應黎醫生的批評，並列出其個人背景、臨床和專家經驗及國際認可的資料，以加強其意見的可信性。黎醫生亦有就黃醫生的上述回應撰寫一份補充報告。" } }, { "doc_id": 35, "seg_id": 75, "translation": { "en": "70.Dr Wong said in evidence that the special characteristic of SDD was that it was a delusion which developed in an individual by reason of his/her close relationship with another person suffering from a mental disorder with prominent delusional symptoms. The latter person was known as the “primary case” or “inducer”. The former gradually recognised/shared all or part of the latter’s delusional beliefs due to the close relationship between the two.", "zh-HK": "黃醫生作供時指該共有性妄想症的特徵是一個人因為與另一名已有明顯妄想徵狀的精神障礙患者有密切關係而發展出來的妄想症；後者稱為“原個案”或“引發者”；前者因為和後者有密切關係而漸漸認同/共享後者的全部或部分妄想信念。" } }, { "doc_id": 35, "seg_id": 76, "translation": { "en": "71.Dr Wong said that, based on the information in hand which related to the sisters including Mr Wong’s written and oral statements, family photos and videos, school reports, Elder Sister’s diary, Younger Sister’s weekly journal, and the WhatsApp messages and letters with parents, Dr Wong was able to conclude that both sisters suffered from delusional disorders as well as SDD, and their mental abnormality would have affected their state of mind, thereby casting grave doubts on the truthfulness of their evidence.", "zh-HK": "黃醫生指根據他取得和姊姊及妹妹有關的資料，包括黃先生的書面和口頭陳述、家庭照片和錄像、學校成績表、姊姊的日記簿、妹妹的週記和與父母的WhatsApp及書信通訊，他能判斷姊姊和妹妹都患有妄想症及兩人亦患有共有性妄想症，而他們的精神失常會影響到她們的思想狀態，致使她們證供的真確性大受質疑。" } }, { "doc_id": 35, "seg_id": 77, "translation": { "en": "72.In essence, Dr Wong took the stance that, if the sisters had indeed been physically abused and ill-treated by their parents, then the family photos and videos would not have captured scenes in which the sisters were joyous and happy, and they would have had bad grades at school, and their writings, journal and diary would have been devoid of words and phrases expressing their concern and love for their parents. Dr Wong fully accepted Mr Wong’s statement that he had never physically abused or improperly treated the two victims. It followed that their allegations that their father had acted improperly were the result of their delusional disorders. Dr Wong based his diagnosis on the false beliefs that the sisters held even though they had neither been improperly treated by their parents nor been indecently assaulted by the applicant.", "zh-HK": "黃醫生的基本立場是如姊姊和妹妹曾遭父母虐打和不當對待，家庭照片和錄像就不會拍攝到他們歡笑愉快的場面，她們的學校成績就不會理想，而她們的文章、週記、日記等亦不會出現關心、愛護父母的語句。黃醫生完全接受黃先生的說法，指他從來沒有虐打或不當地對待兩名受害人。因此她們針對父親有不當的指控是因為她們患有妄想症。黃醫生的診斷是建基在姊姊和妹妹都沒有被父母不當對待及沒有被申請人“非禮”的情況下，但仍持有虛假的信念。" } }, { "doc_id": 35, "seg_id": 78, "translation": { "en": "73.Dr Wong contended that before 2006 in the case of Elder Sister, and before 2011 or 2012 in the case of Younger Sister, they both led normal and happy childhoods. Their parents subjected them to appropriate discipline but did not inflict violence upon them. But later, with the imperceptible onset of their illness, they began to believe they had been physically abused. Dr Wong took the view that the sisters’ said belief was false but unfaltering.", "zh-HK": "黃醫生力稱姊姊在2006年前，而妹妹在2011年或2012年前，均過著正常和快樂的童年。她們的父母對她們施以合適的管教，但沒有對她們施暴。但後期在不知不覺間發病，令她們相信曾受虐打。黃醫生認為姊姊和妹妹的上述信念是虛假的，但亦是不能動搖的。" } }, { "doc_id": 35, "seg_id": 79, "translation": { "en": "74.Dr Wong took the view that the sisters were suffering from persecutory delusions and that it showed signs of “systematization” and “generalization”, so that they considered themselves being harmed not only by their parents but also by others including the applicant, relatives, teachers, social workers, etc. And “generalization” meant that their ability to perceive, thoughts, moods and memories were all affected by their mental illness, rendering their evidence unreliable.", "zh-HK": "黃醫生認為姊姊和妹妹所患的是被害型妄想症，而更有“系統化”和“廣泛化”的現象，令她們認為加害她們的人由父母擴展至其他人，包括申請人、親戚、老師、社工等。而廣泛化是指她們的感知能力、思想、情緒和記憶功能都受病患影響，導致她們的證供不可靠。" } }, { "doc_id": 35, "seg_id": 80, "translation": { "en": "75.Based on the entry dated 1 May 2009 in Elder Sister’s diary, Dr Wong opined that Elder Sister began to fall ill in May 2009. At that time, her “views” of her parents turned from positive to negative. But it was only later － in August 2010 or so － that her delusional disorder truly manifested, and the entry dated 28 August 2010 in her diary gave some indication of the status of her illness.", "zh-HK": "根據姊姊2009年5月1日的日記內容，黃醫生認為姊姊在2009年5月已開始病發。當時她對父母的“諗法”由正向轉去負向，而她真正出現妄想症是在較後時間，即約在2010年8月，而其病況亦在2010年8月28日的日記內容顯示。" } }, { "doc_id": 35, "seg_id": 81, "translation": { "en": "76.Dr Wong also took the view that Younger Sister was mentally normal before 2011 or 2012 and that it was very difficult to pinpoint the time of the onset of illness. Dr Wong opined that by the time Younger Sister reported to the police that she had been indecently assaulted by the applicant, her delusional disorder had already manifested, and when she sent the WhatsApp messages to her parents, she was under full-blown attack of the delusional disorder.", "zh-HK": "黃醫生亦認為妹妹在2011年或2012年前精神狀態是正常的，亦很難準確地判斷她病發的時間。黃醫生認為當妹妹報警指遭申請人“非禮”時，她的妄想症已經病發，而當她發出WhatsApp訊息給父母時，其妄想症則全面爆發。" } }, { "doc_id": 35, "seg_id": 82, "translation": { "en": "77.Dr Wong came to the conclusion that both sisters suffered from delusional disorders and SDD and hence neither of them was a veracious and reliable witness, and the court should not act on their evidence.", "zh-HK": "黃醫生的結論是姊姊和妹妹都患有妄想症及共有性妄想症，因此她們都並非誠實可靠的證人，而法庭亦不應根據她們的證供行事。" } }, { "doc_id": 35, "seg_id": 83, "translation": { "en": "78.Dr Wong further pointed out that according to Jean Piaget’s theory of cognitive development, the age of 5, which was Younger Sister’s age when she said the offence occurred, was the pre-operational stage, in which a child was yet to understand concrete logic and mentally manipulate information, and was therefore egocentric and unable to see the viewpoints of others or to use his/her linguistic ability in a sophisticated way. Accordingly, Younger Sister had no more than a vague memory of the incident, and even if she tried to recall the incident, she could only recall periods of time with even greater vagueness. Dr Wong cited the decision in R v H (JR) (Childhood Amnesia) [2006] 1 Cr App 10 to support his statements.", "zh-HK": "黃醫生亦指出，根據尚、皮亞傑的認知發展理論，妹妹指稱在案發時，她只有5歲，處於前運思期，仍未能理解具體邏輯，其心智未能掌握資料，故以自我為中心，未能了解他人想法，亦未能成熟運用言語能力。因此，妹妹對事件只有模糊記憶，而即使回想事件，她也只能記起更為模糊的時段。黃醫生援引R v H (JR) (Childhood Amnesia) [2006] 1 Cr App 10案的判決支持他的論述。" } }, { "doc_id": 35, "seg_id": 84, "translation": { "en": "79.Dr Wong reached the conclusion that it was very unlikely for Younger Sister to be able to recall clearly what happened in the incident. He even took the view that the account or contrived account that she gave of the incident might have been a frame-up or a mistaken account derived from her persecutory delusion.", "zh-HK": "黃醫生的結論是妹妹能清晰回想有關事件的經過的可能性非常低。他更認為妹妹就事件的描述或做作的描述（contrived account），可能是一個誣陷的描述或是基於她患有被害型妄想症而衍生而來的錯誤描述。" } }, { "doc_id": 35, "seg_id": 85, "translation": { "en": "80.After Dr Wong finished giving evidence, the prosecution called Dr Lai to rebut Dr Wong’s evidence and diagnostic findings. Dr Lai had neither examined the sisters nor analyzed the materials that Dr Wong relied on, but he considered the materials relied on by Dr Wong fragmented, unverified and unreliable. Dr Lai took the view that Dr Wong’s diagnostic approach was unfair, unsophisticated and even failed to meet the necessary diagnostic requirements in the field of psychiatry.", "zh-HK": "控方在黃醫生作供完畢後，傳召黎醫生反駁黃醫生的證供及診斷結論。黎醫生沒有檢驗過姊姊或妹妹，亦沒有分析黃醫生所依賴的資料，但他認為黃醫生依賴的資料是零碎，未經證實及不可靠。黎醫生認為黃醫生的診斷方法不公平、不成熟、更不符合精神科病患所需的診斷要求。" } }, { "doc_id": 35, "seg_id": 86, "translation": { "en": "Decisions of the trial judge", "zh-HK": "原審法官的裁決" } }, { "doc_id": 35, "seg_id": 87, "translation": { "en": "81.The trial judge stressed that the expert witnesses were obliged to assist the court by expressing objective and unbiased opinions and should never assume the role of counsel or advocate. He pointed out that the expert witnesses were under a duty to specify the scientific standards by which they tested their conclusions, so that the court could apply those standards to the proven facts and make independent judgments.", "zh-HK": "原審法官強調專家證人必須提出客觀及沒有偏見的意見以協助法庭，而絕對不能扮演訴訟律師的角色。原審法官指出專家證人有責任提供用作測試他們結論的科學準則，以便法庭能運用該些科學準則在獲得證明的事實上，令法庭能作出獨立的判斷。" } }, { "doc_id": 35, "seg_id": 88, "translation": { "en": "82.The trial judge had dealt at great length with Dr Wong’s evidence. He took the view that Dr Wong’s judgments, which were not based on comprehensive, accurate and objective information, showed that he had already taken a stance regarding the incident beforehand. He stressed that Dr Wong’s diagnosis set out in his second, third and fourth reports, namely that the two sisters were suffering from persecutory delusions and also SDD, was made without having examined or even seeing the two sisters. He considered Dr Wong’s approach slipshod and unconvincing.", "zh-HK": "原審法官花了極大篇幅來處理黃醫生的證供。原審法官認為黃醫生的判斷並非建基在全面、準確和客觀的資料，顯示他對事件早有預設立場。原審法官強調黃醫生在沒有檢驗更沒有見過姊姊和妹妹下，便在他撰寫的第二、三、四份報告書確診姊姊和妹妹都患有被害型妄想症，且是共有性妄想症。原審法官認為黃醫生的處理方法粗疏及不具說服力。" } }, { "doc_id": 35, "seg_id": 89, "translation": { "en": "83.The trial judge rejected Dr Wong’s statement that observing them giving evidence in court was tantamount to having examined their state of mind. The trial judge took the view that the further reports Dr Wong prepared after listening to the sisters’ testimony showed that he was playing the role of counsel rather than giving expert evidence, for the reason that some of the points he made were simply beyond his expertise. The trial judge stressed that as a matter of fact, Dr Wong had no evidence to prove that Grand Aunt and Grand Uncle had exercised any undue influence over the sisters.", "zh-HK": "原審法官否定黃醫生的說法，指他觀察姊姊和妹妹作供已等同有對她們進行了精神狀態檢查。原審法官認為黃醫生在聆聽姊姊和妹妹的證供後作出的進一步報告，顯示他扮演了訴訟律師的角色，而非給予專家證供，原因是他的部分論點根本不屬於他的專業範疇。原審法官強調事實上黃醫生沒有任何證據證明姑婆及姑丈公有對姊姊和妹妹施加過任何不當的影響。" } }, { "doc_id": 35, "seg_id": 90, "translation": { "en": "84.The trial judge pointed out that Dr Wong’s conclusion that the sisters’ allegations against their parents were not true was based merely on one-sided statements made to him by the parents, and ruled that Mr Wong was a “loving father” and that he and Mrs Wong were “good parents”. The trial judge took the view that Dr Wong’s judgments were not objective and lopsided and that his diagnosis, rested on the factual basis as it stood, was not one which he could have made within his expertise. The trial judge considered Dr Wong in fact did not have sufficient grounds to enable him to believe Mr Wong. The trial judge explained in detail the basis on which he came to that conclusion.", "zh-HK": "原審法官指出黃醫生是根據父母親向他作出的片面陳述便認定姊姊和妹妹對他們的指控不真確，而判定黃先生和黃太太都是“慈愛的父親”和“好父母”。原審法官認為黃醫生的判決是不客觀及片面的，而他作出診斷的事實基礎亦非他專業知識範圍內可作出的。原審法官認為黃醫生根本沒有足夠理據令他能相信黃先生。原審法官有詳細解釋他得出該結論的理據。" } }, { "doc_id": 35, "seg_id": 91, "translation": { "en": "85.The trial judge also examined, one by one, the bases of Dr Wong’s diagnosis. He took the view that the diagnostic methodology adopted by Dr Wong was full of loopholes and shortcomings, and that the information Dr Wong relied on did not support his conclusion. The trial judge stressed that Dr Wong started off by presuming that both sisters were influenced by mental illness instead of considering all the information before coming to a conclusion.", "zh-HK": "原審法官更有根據黃醫生的診斷結論的基礎逐一審視。原審法官認為黃醫生採納的診斷方法充滿漏洞及缺失，而他依賴的資料亦不支持他的結論。原審法官強調黃醫生是先假定姊姊和妹妹都是受了精神病的影響而不是考慮全面資料才作出該判定。" } }, { "doc_id": 35, "seg_id": 92, "translation": { "en": "86.The trial judge found that Dr Wong had a predetermined position and failed to objectively analyse the relevant information including the family photos, videos, school reports, writings, diary and so on. The trial judge explained in great detail the aforesaid conclusion that he reached. He found that Dr Wong in fact did not have sufficient grounds to support his diagnosis on the sisters. He pointed out that part of the information Dr Wong relied on did not support his conclusion and that his judgment was wrong. Moreover, the content of Elder Sister’s diary was not in line with Dr Wong’s view that she had a happy childhood.", "zh-HK": "原審法官裁定黃醫生有預設立場，而他分析有關資料，包括家庭相片、錄像、成績表、文章、日記等等時的態度並非客觀。原審法官有非常詳細地解釋他得出的上述結論。原審法官認為黃醫生根本沒有足夠理據支持他對姊姊和妹妹的診斷。原審法官指出黃醫生所依賴的資料部分不支持他的結論，而他的判斷是錯誤的。原審法官指出姊姊日記的內容和黃醫生指她有愉快童年生活的說法不符。" } }, { "doc_id": 35, "seg_id": 93, "translation": { "en": "87.The trial judge found that he could not attach any weight to the evidence of Dr Wong.", "zh-HK": "原審法官認定他不能給予黃醫生的證供任何比重。" } }, { "doc_id": 35, "seg_id": 94, "translation": { "en": "88.In the end, the trial judge found that the sisters were not under any false belief of being persecuted by their parents, and that they did not suffer from any delusional disorder, not to mention SDD.", "zh-HK": "最終，原審法官裁定姊姊和妹妹都沒有任何遭受父母迫害的虛假信念，而她們沒有患上任何妄想症，更遑論共有性妄想症。" } }, { "doc_id": 35, "seg_id": 95, "translation": { "en": "89.The trial judge also very carefully analyzed the evidence of the sisters and tested the credibility and reliability of their evidence from the perspective of the defence.", "zh-HK": "原審法官亦有非常小心分析姊姊和妹妹的證供，亦有根據辯方的立場來測試她們的證供的可信性和可靠性。" } }, { "doc_id": 35, "seg_id": 96, "translation": { "en": "90.The trial judge set out in detail the events leading to the sisters reporting the matter to the police on the evening of 3 April 2013 and the reasons causing them to accuse the applicant of indecently assaulting them. The trial judge said it was out of fear of “score-settling” and violence from the father that Younger Sister was willing to go to the applicant’s home. Therefore, that matter shed no light on the sisters’ allegations against the applicant, and it was in order to protect Younger Sister that they reported the matters to the police. The trial judge pointed out that Grand Aunt and Grand Uncle did not stand to gain anything from the sisters’ severance of the relationship with their parents, and that the sisters had no reason to target the applicant.", "zh-HK": "原審法官有詳細列出導致姊姊和妹妹在2013年4月3日晚上報警的過程及她們指控遭申請人“非禮”的前因後果。原審法官指出妹妹是害怕父親秋後算賬及為了逃避暴力，才願意前往申請人的家，因此該事項和姊姊及妹妹針對申請人的指控沒有啟示性，而她們報警亦是為了保護妹妹。原審法官指出姊姊和妹妹切斷和父母的關係對姑婆和姑丈公沒有任何好處。他們亦沒有針對申請人的理由。" } }, { "doc_id": 35, "seg_id": 97, "translation": { "en": "91.The trial judge found that the discrepancies in the evidence between Elder Sister, Younger Sister and Grand Aunt were merely the result of different recollections they had of the details and did not mean that any of them lied.", "zh-HK": "原審法官認為姊姊、妹妹和姑婆的證供有矛盾只是基於她們對細節有不同記錄，不等同她們任何一人有說謊。" } }, { "doc_id": 35, "seg_id": 98, "translation": { "en": "92.The trial judge said according to Younger Sister, she did make a complaint to the mother shortly after she had been indecently assaulted by the applicant － an account which was confirmed by the applicant in his video-recorded interview. The trial judge stressed that Younger Sister complained to her mother that the applicant had “touched (her) private parts” with his hand(s), and the applicant was aware of the complaint Younger Sister made because he had been “cautioned” and “scolded” as a result of the complaint. The trial judge considered that the incident the applicant mentioned was the very incident about which Younger Sister complained to her mother and of which Younger Sister accused the applicant. The trial judge found that Younger Sister had made a “recent complaint” about the applicant’s indecent assault on her.", "zh-HK": "原審法官指出根據妹妹的說法，而該說法亦獲申請人在錄影會面確認，她在被申請人“非禮”後不久，有向母親投訴。原審法官強調妹妹向母親投訴被申請人用手“掂下體”，而申請人知悉妹妹的投訴，原因是妹妹的投訴導致他被“警誡”及“鬧過”。原審法官認為申請人提及的事件和妹妹向母親的投訴及妹妹對申請人的指控都是同一事件。原審法官裁定妹妹有就申請人“非禮”她的行為作出過“新近投訴”。" } }, { "doc_id": 35, "seg_id": 99, "translation": { "en": "93.The trial judge did not spell out how he dealt with Elder Sister’s evidence that she eavesdropped on the complaint Younger Sister made to their mother. However, he pointed out that if it was accepted that Elder Sister did in fact hear Younger Sister complaining to their mother that she had been indecently assaulted by the applicant, then Elder Sister’s evidence would support the recent complaint in respect of Charge 1.", "zh-HK": "原審法官沒有明確表示他如何處理姊姊偷聽到妹妹向母親投訴的證供，但他指出如接納姊姊確有聽到妹妹向母親投訴被申請人“非禮”，姊姊的證供亦構成支持第一項控罪的“新近投訴”。" } }, { "doc_id": 35, "seg_id": 100, "translation": { "en": "94.The trial judge said that there was no recent complaint to support Elder Sister’s allegation against the applicant, but the entry she made in her diary of 1 May 2009 could prove that she had been consistent in making her allegation against the applicant and that she had not fabricated the allegation only shortly before the report made to the police in 2013. The trial judge stressed that the relevant diary showed no sign of new page(s) having been inserted and that the content of the diary showed continuity, and these were inconsistent with the defence case that the entry in question was written on page(s) left blank in advance or on newly inserted page(s). The trial judge also rejected another allegation made by the defence, namely that Elder Sister wrote the entry in question when her mental illness relapsed. The trial judge did not accept the defence case and found that the relevant entry in the said diary was written by Elder Sister on 1 May 2009.", "zh-HK": "原審法官指出姊姊指控申請人的證供沒有“新近投訴”這因素支持，但她在2009年5月1日的日記記錄能證明她針對申請人的指控是一貫性的，而不是在2013年報警時才新近捏造的指控。原審法官強調有關日記簿沒有加入新頁的痕跡，日記的內容亦有連貫性，和辯方指該日記是寫在預留空頁或是新加的說法不符。原審法官同時否定辯方的另一說法，指姊姊是在精神病發作下寫該日記的。原審法官不接納辯方的說法，並裁定該日記內容是姊姊在2009年5月1日寫下的。" } }, { "doc_id": 35, "seg_id": 101, "translation": { "en": "95.The trial judge stressed that the said diary mentioned the applicant holding Elder Sister from behind and touching her chest, and also mentioned that Younger Sister was also a victim. This showed that the evidence of Elder Sister was consistent and not in conflict with the content of the diary. The trial judge also examined the account given by the applicant during the video-recorded interview, and concluded that the applicant had done the relevant acts to Elder Sister with an indecent intent.", "zh-HK": "原審法官強調，上述日記說及申請人從後抱住姊姊及摸她的胸部，亦說到妹妹也是受害人。這顯示姊姊的證供和該日記的內容是一貫的及是沒有衝突的。原審法官亦有審視申請人在錄影會面時的說法，原審法官認定申請人向姊姊作出的行為有猥褻意圖。" } }, { "doc_id": 35, "seg_id": 102, "translation": { "en": "96.The trial judge rejected Dr Wong’s statement that Younger Sister was only 5 years old at the time in question and therefore could not possibly recall the details of what allegedly happened. He pointed out that as a result of the decisions in cases such as R v E [2009] EWCA Crim 1370 and R v Anderson [2012] EWCA Crim 1785, the case of R v H(JR)(Childhood Amnesia) [2006] 1 Cr App R 10 relied on by Dr Wong had become much less important. The trial judge stressed that the opinion expressed by Professor Conway in H(JR) did not in fact support Dr Wong’s stance because, according to the Professor, on the topic in question there were two schools of thought which yielded diametrically different results. Therefore, the trial judge took the view that Dr Wong could not conclude, on the basis of Professor Conway’s opinion, that Younger Sister could not possibly recall the details of the indecent assault upon her when she was 5 years old. The trial judge pointed out that the indecent assault was a traumatic experience for Younger Sister and was also an incident which was “etched in her memory”. And after the incident, she agreed with Elder Sister that they should not be alone with the applicant any more. The trial judge found nothing surprising in Younger Sister being able to recall the incident and tell the police and the court about it.", "zh-HK": "原審法官否定黃醫生的說法指妹妹在事發時只有5歲，故不可能記得她聲稱的事發細節。原審法官指出基於R v E [2009] EWCA Crim 1370及R v Anderson [2012] EWCA Crim 1785等案。黃醫生所依賴在R v H(JR)(Childhood Amnesia) [2006] 1 Cr App R 10案的重要性已大大降低。原審法官強調H(JR)案中Conway教授的意見，亦不支持他的立場，原因是根據Conway教授的意見，有關議題有兩種不同的說法，而該兩種說法得出的結果亦是截然不同。因此，原審法官認為黃醫生不能根據Conway教授的意見來認定妹妹不可能記得5歲時被“非禮”的細節。原審法官指“非禮”事件對妹妹來說是一個創傷性經歷，而她對事件亦是“刻骨銘心”的。事後她更有和姊姊相約不再和申請人單獨相處。原審法官認為妹妹能對事件有記憶及將事件向警方和法庭道出是絕不為奇的。" } }, { "doc_id": 35, "seg_id": 103, "translation": { "en": "97.The trial judge found that, on the evidence of Younger Sister, the applicant’s acts were certainly intentional and done with an indecent intent.", "zh-HK": "原審法官指出根據妹妹的說法，申請人的動作必然是蓄意及具有猥褻意圖的。" } }, { "doc_id": 35, "seg_id": 104, "translation": { "en": "98.The trial judge analyzed in detail the evidence of the two sisters. He found that they were both veracious and reliable witnesses and that the credibility and reliability of their evidence was not affected by Cousin Wai’s evidence. He also rejected Mr Wong’s evidence. He set out in detail the bases of his findings.", "zh-HK": "原審法官有就姊姊和妹妹的證供作出仔細的分析。原審法官認定姊姊和妹妹都是誠實可靠的證人，而慧表姐的證供未能影響她們證供的可信性和可靠性。原審法官亦否定黃先生的證供。原審法官有詳細列出裁決基礎。" } }, { "doc_id": 35, "seg_id": 105, "translation": { "en": "99.In the end, on the basis of the evidence of the sisters, the trial judge convicted the applicant of both charges of indecent assault.", "zh-HK": "最終原審法官根據姊姊和妹妹的證供裁定申請人兩項“非禮”控罪都罪名成立。" } }, { "doc_id": 35, "seg_id": 106, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 35, "seg_id": 107, "translation": { "en": "100.Mr Khattak, Counsel for the applicant, seeks to quash the convictions, raising a number of grounds of appeal.", "zh-HK": "代表申請人的林大律師提出多項上訴理由，要求本庭推翻原判的有罪裁決。" } }, { "doc_id": 35, "seg_id": 108, "translation": { "en": "101.In terms of the law and procedure, Mr Khattak argues that the trial judge should not have treated as a recent complaint the fact that Elder Sister heard Younger Sister complain to the mother that she had been indecently assaulted by the applicant, the reason being that Mrs Wong, the person to whom Younger Sister made the complaint, did not give evidence, and the witnesses gave different accounts of how Younger Sister had been indecently assaulted by the applicant. Mr Khattak stresses the need for sufficient consistency between the content of the recent complaint and the allegations made by the victim. He further argues that the confession made by the applicant was double hearsay evidence which should not have been accepted either. Besides, it is argued that there was no evidence of Younger Sister having made any recent complaint, and that the content of the complaint that Younger Sister had allegedly made was inconsistent with her evidence. The trial judge therefore should (it is argued) not have relied on such evidence of recent complaint.", "zh-HK": "就法律及程序而言，林大律師指原審法官不應視姊姊聽到妹妹向母親投訴被申請人“非禮”一事為“新近投訴”，原因是妹妹的投訴對象黃太太沒有作供，而各人就申請人“非禮”妹妹過程的說法都不同。林大律師強調“新近投訴”的內容須和受害者的指控有足夠一致性。林大律師認為申請人的招認是雙重傳聞證據，亦不應獲採納。林大律師指案件沒有妹妹曾有作出過“新近投訴”的證據。林大律師亦認為妹妹聲稱作出過投訴的內容和她的證供不一致，因此原審法官不應依賴該些“新近投訴”的證據。" } }, { "doc_id": 35, "seg_id": 109, "translation": { "en": "102.Mr Khattak also submits that the trial judge should not have allowed the prosecution to wait until Dr Wong finished giving evidence and then call Dr Lai to give evidence in rebuttal.", "zh-HK": "林大律師認為原審法官不應容許控方在黃醫生作供完畢後才傳召黎醫生作供來反駁黃醫生的證供。" } }, { "doc_id": 35, "seg_id": 110, "translation": { "en": "103.Mr Khattak argues that the trial judge had excessively participated in questioning Dr Wong in the course of his testimony, which indicated that the trial judge cast doubts on and challenged Dr Wong’s evidence. The trial judge’s approach, it is argued, lacked impartiality.", "zh-HK": "林大律師指原審法官在黃醫生作供時，過度參與詢問他，顯示原審法官質疑及挑戰黃醫生的證供。林大律師認為原審法官的處理方法有失中立。" } }, { "doc_id": 35, "seg_id": 111, "translation": { "en": "104.Mr Khattak levels a number of complaints at the trial judge’s decision not to accept Dr Wong’s evidence. It is argued that the trial judge erred in dealing with the evidence on the theory of cognitive development and should not have relied on the decisions in similar types of cases in rejecting Dr Wong’s evidence that Younger Sister could not possibly recall the details of the “indecent assault” on her when she was 5 years old. It is submitted that the trial judge should not have rejected Dr Wong’s evidence, particularly when the prosecution failed to put forward sufficient evidence in rebuttal. Mr Khattak stresses that in a criminal case the defendant bears no burden of proof and the prosecution must clear all doubts in respect of the charge before the court can find the defendant guilty.", "zh-HK": "林大律師就原審法官否定黃醫生的證供的裁決，提出多項投訴。林大律師指原審法官有錯誤處理認知發展理論的證據，亦不應根據同類案件的裁決為基礎來否定黃醫生指妹妹不可能記得5歲時被“非禮”的細節。林大律師認為原審法官不應否定黃醫生的證供，特別是在控方沒有提出足夠的反證的情況下。林大律師強調在刑事案件，被告人並沒有舉證責任而控方必須消除控罪的所有疑點，法庭才可以裁定被告人罪名成立。" } }, { "doc_id": 35, "seg_id": 112, "translation": { "en": "105.Mr Khattak also complains about the trial judge’s findings of fact, including the refusal to accept the evidence of Cousin Wai and the father. It is submitted that the trial judge did not adequately consider and explain the contradictions between the sisters’ evidence on the one hand and that of Grand Aunt on the other, and also overlooked the obvious weaknesses in the evidence of the sisters and its inherent improbability. Mr Khattak submits that the trial judge was unreasonably biased against the father and hence rejected his evidence. On the whole, Mr Khattak submits that the convictions are unsafe.", "zh-HK": "林大律師亦就原審法官作出的事實裁決，包括拒絕接納慧表姐和父親的證供作出投訴。他認為原審法官沒有足夠考慮及交代姊姊/妹妹的證供和姑婆的證供之間的矛盾，亦忽略了姊姊和妹妹證據的明顯弱點及其內在不可能性。林大律師認為原審法官對父親有不合理的偏見，而拒絕接納他的證供。整體而言，林大律師認為原審法官作出的有罪裁決是不穩妥的。" } }, { "doc_id": 35, "seg_id": 113, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 35, "seg_id": 114, "translation": { "en": "Could the “recent complaint” evidence of Younger Sister be produced in court?", "zh-HK": "妹妹的“新近投訴”證供是否可以呈堂" } }, { "doc_id": 35, "seg_id": 115, "translation": { "en": "106.A fundamental principle of the common law is that in giving evidence, a witness is not allowed to talk about any previous statement he had made which is consistent with his evidence. One of the exceptions is that, in cases involving sexual assault, if the victim did make a complaint at the earliest reasonable opportunity (“recent complaint”), then the victim’s complaint can be produced as evidence in court; so can the fact of the complaint and the content thereof as they related to the recipient of the complaint.", "zh-HK": "普通法的一項基本原則是一名證人作供時不能述及他曾作過和他證供吻合的表述。例外之一是在“性侵犯”案件，如受害人就事件在事發後的合理盡早機會作出投訴（“新近投訴”），則受害人的投訴及接收到投訴的一方就有關投訴一事及投訴內容可以呈堂為證。" } }, { "doc_id": 35, "seg_id": 116, "translation": { "en": "107.Evidence of recent complaint is merely relevant to the credibility of the victim, serving to demonstrate consistency of the complaints but not constituting evidence in support of the relevant offence (see, for example, White v The Queen [1991] 1 AC 210, Leung Chi Keung v HKSAR (2004) 7 HKCFAR 526).", "zh-HK": "“新近投訴”的證據只與受害人的可信性有關，目的是證明投訴的說法前後一致，而不構成支持有關罪行的證據（見White v The Queen [1991] 1 AC 210、Leung Chi Keung v HKSAR (2004) 7 HKCFAR 526等案）。" } }, { "doc_id": 35, "seg_id": 117, "translation": { "en": "108.At trial, there were a number of sources showing that shortly after the incident Younger Sister did complain to her mother and Aunt Kum Kum that she had been indecently assaulted by the applicant.", "zh-HK": "原審時，顯示妹妹在事發後不久有向母親和琴琴姨投訴曾遭申請人“非禮”一事有多個源頭。" } }, { "doc_id": 35, "seg_id": 118, "translation": { "en": "109.Apart from making it clear in her testimony that she immediately complained to the mother upon returning home on the day of the incident, Younger Sister also said that she repeated the matter to her mother and Aunt Kum Kum when they were discussing it at home.", "zh-HK": "除了妹妹作供時表明在事發後當天返回家後立刻向母親作供投訴，她亦指有和母親及琴琴姨在家中討論事件時，再向她們覆述事件。" } }, { "doc_id": 35, "seg_id": 119, "translation": { "en": "110.In her testimony, Elder Sister stated that she heard from outside the room that Younger Sister was complaining to their mother about having been indecently assaulted by the applicant, and then she rushed into the room to demand that mother deal with the matter.", "zh-HK": "姊姊作供時亦指當妹妹向母親投訴被申請人“非禮”時，她在房門外聽到妹妹的投訴並有衝入房要母親處理事件。" } }, { "doc_id": 35, "seg_id": 120, "translation": { "en": "111.If the defence considered that Younger Sister’s complaint was not a recent complaint and therefore could not be produced in court, the defence should have objected to Younger Sister talking about her complaint to the mother about having been indecently assaulted by the applicant, on the ground that it was only a “previous consistent statement” which could not be produced in court as evidence (see White v R [1999] 1 AC 210).", "zh-HK": "假若辯方認為妹妹的投訴不屬“新近投訴”，故不能呈堂為證，辯方理應反對妹妹談及有向母親投訴被申請人“非禮”一事，原因是妹妹的說法只屬“作出過的一致說法”（previous consistent statement），而“作出過的一致說法”是不能呈堂為證的（見White v R [1999] 1 AC 210）。" } }, { "doc_id": 35, "seg_id": 121, "translation": { "en": "112.At trial, the defence did not object to the production to the court of the evidence of Younger Sister which might constitute a recent complaint. Nor did the defence, upon learning that the mother would not testify to support the case that Younger Sister had complained to her, ask the trial judge to strike out Younger Sister’s evidence that she had complained to her mother. As a matter of fact, Younger Sister’s complaint that she had been indecently assaulted by the applicant was confirmed by one of the defence witnesses. When the father testified for the applicant, he stated clearly that after the report was made to the police about the incident on 3 April 2013, he made enquiries with Mrs Wong and learned that Younger Sister had complained to her mother about having been indecently assaulted by the applicant.", "zh-HK": "原審時，辯方沒有反對妹妹有作出能構成“新近投訴”的證供呈堂為證。在知悉母親不會作供來支持妹妹有向她投訴後，辯方亦沒有要求原審法官剔除妹妹有向母親投訴的證供。事實上，妹妹投訴被申請人“非禮”一事更獲辯方證人之一確認。父親為申請人作供時表明，在2013年4月3日事件報警後他有向黃太太查詢，並因而知悉妹妹曾向母親投訴被申請人“非禮”。" } }, { "doc_id": 35, "seg_id": 122, "translation": { "en": "113.The facts agreed by the prosecution and defence also confirmed that, at the video-recorded interview, the applicant admitted that he knew Younger Sister had disclosed to her mother and senior family members the incident of the applicant touching her thigh(s) and private parts, as a result of which he had been “cautioned” and “scolded”.", "zh-HK": "控辯雙方同意的案情亦證實申請人在錄影會面時，承認知悉妹妹曾向母親及長輩透露因申請人掂到她的大髀和下體一事，而申請人亦因此被“警誡”及“鬧過”。" } }, { "doc_id": 35, "seg_id": 123, "translation": { "en": "114.On the above analysis, at trial the defence not only raised no objection to the production of Younger’s recent complaint to the court as evidence, but even admitted that she had indeed made a recent complaint. With respect, Mr Khattak is wrong in saying that the position of the defence at trial was that Younger Sister had not made any recent complaint. As a matter of fact, during cross-examination, instead of putting to Younger Sister that she had not complained to her mother, the defence merely put to her that the content of her complaint was inconsistent with her allegation against the applicant. They also put to Younger Sister that when she was complaining to her mother, Elder Sister was in fact not at home. Quite clearly, the position of the defence at trial was that they accepted that Younger Sister had complained about having been indecently assaulted by the applicant.", "zh-HK": "根據上述分析，在原審時辯方不但沒有反對妹妹的“新近投訴”呈堂為證，辯方更承認妹妹確有作出過“新近投訴”。林大律師指辯方在原審時的立場是妹妹沒有作出過任何“新近投訴”。林大律師的說法並不正確。事實上，辯方並沒有在盤問妹妹時指她沒有向母親作出過投訴，辯方只是指妹妹的投訴內容和她針對申請人的說法有出入。辯方亦指妹妹向母親投訴時，姊姊根本不在家。辯方在原審時的立場明顯是接納妹妹有就申請人“非禮”她一事有作出過投訴。" } }, { "doc_id": 35, "seg_id": 124, "translation": { "en": "115.Mr Khattak contends that since Mrs Wong, the person to whom Younger Sister complained, was not called to give evidence on the content of the complaint she had received, the trial judge should not have found that the Younger Sister’s evidence was supported by a recent complaint.", "zh-HK": "林大律師力稱妹妹的投訴對象，即黃太太沒有出庭作供闡述她接受到妹妹的投訴內容。因此原審法官不應裁定妹妹的證供有“新近投訴”這因素支持。" } }, { "doc_id": 35, "seg_id": 125, "translation": { "en": "116.Generally speaking, the person who receives a recent complaint has to be called to give evidence on the content of the complaint, for the obvious reason that other people cannot have direct knowledge of the content of the complaint. If those other people give evidence on the victim’s recent complaint, such evidence will be “hearsay evidence upon hearsay evidence”.", "zh-HK": "一般而言，接受“新近投訴”的人需要出庭作供道出投訴的內容，原因明顯是其他人不能直接知悉有關投訴的內容。如該些其他人就受害人作出的“新近投訴”作供，則會是“傳聞證據”上的“傳聞證據”。" } }, { "doc_id": 35, "seg_id": 126, "translation": { "en": "117.However, when Younger Sister made the complaint to the mother and Elder Sister heard it from outside the room, could Elder Sister give evidence on Younger Sister’s recent complaint? Mr Khattak takes the stance that she could not. He refers to the case of HKSAR and Lau Chiu Tong (transliteration) (HCMA 686/2009) in support. In that case, based on the judgment of the Privy Council in Kory White v The Queen [1999] 1 AC 210, the trial judge concluded that even if the witness was also present when the victim made the complaint to someone, the court still could not rely on the witness to relate the complaint the victim made to that person.", "zh-HK": "但當妹妹向母親投訴時，姊姊在門外聽到妹妹的投訴，姊姊能否就妹妹的“新近投訴”作供？林大律師的立場是不可以。他援引香港特別行政區訴劉照棠（HCMA 686/2009）案支持他的立場。在該案主審法官根據英國樞密院Kory White v The Queen [1999] 1 AC 210案的裁決得出的結論是當受害人向某人投訴時，即使證人也在場，法庭也不可以依據證人轉述受害人向某人作出的投訴。" } }, { "doc_id": 35, "seg_id": 127, "translation": { "en": "118.The trial judge was relying on the following decision of Lord Hoffman in Kory White:", "zh-HK": "主審法官依賴的是Kory White案賀輔明勳爵的以下裁決：" } }, { "doc_id": 35, "seg_id": 128, "translation": { "en": "“If a complaint is made at the first reasonable opportunity after the offence, it may be proved in evidence to show the complainant’s consistency and to negative consent. But for this purpose it is necessary not only that the complainant should testify to the making of the complaint but also that its terms should be proved by the person to whom it was made. If, as in this case, the recipients of the complaints do not give evidence, the complainant’s own evidence that she made a complaint cannot assist in either proving her consistency or negating consent.”", "zh-HK": "“如投訴人在案發後首個合理機會出現時作出投訴，該投訴能顯示投訴人的一致性及反駁‘同意’，但條件是不但要投訴人作供表示有作出過投訴，其內容亦要由接受投訴的人證實。當如本案情況接收投訴者沒有作供，投訴人指她有作過投訴的證供不能對她的一致性或反駁‘同意’等議題有幫助”（非官方翻譯）" } }, { "doc_id": 35, "seg_id": 129, "translation": { "en": "119.Kory White only confirms that a witness cannot relate the complaint made by a complainant to another person, but does not say that the principle also applies to people who were present and could hear the complaint when the complainant made it.", "zh-HK": "上述Kory White案只是確認一名證人不能覆述投訴人向另一人作出的投訴，而沒有表明該原則亦適用於一名投訴人投訴時，有在場及能聆聽到有關投訴的人。" } }, { "doc_id": 35, "seg_id": 130, "translation": { "en": "120.In cases involving sexual offences, the “recent complaint” principle focuses on whether the victim had complained about the offence in question to another person at the earliest reasonable opportunity. If, when a victim made a recent complaint to another person, a third party was present and could hear the complaint clearly, then we see no logical reason for not allowing the third party to give evidence to prove that the victim had indeed made a recent complaint. We have reservations about the decision in Lau Chiu Tong.", "zh-HK": "在性侵犯案件“新近投訴”的重點是受害人是否有在最早的合理機會就有關罪行向別人投訴。如受害人作出投訴時，有第三者在場，並能清楚聆聽到受害人向另一人作出“新近投訴”，本庭實不能想象到有合邏輯的理由拒絕該名第三者向法庭作供證實受害人確有作出過“新近投訴”。本庭對劉照棠案的判決有保留。" } }, { "doc_id": 35, "seg_id": 131, "translation": { "en": "121.There are also cases which show that if the victim of a sexual offence did make a complaint after the incident and the complaint meets the requirement of being “recent”, then even if the recipient of the complaint does not testify in court, the court can still accept such recent complaint as evidence. (See, for example, R v B [1997] Crim L.R. 220 and HKSAR and So Tsz Yeung (CACC 201/2013).)", "zh-HK": "亦有案例顯示，如性侵犯案受害人確有在事發後作出投訴，而投訴符合“新近”的要求，則即使接受投訴的人沒有出庭作供，法庭仍可以採納該些“新近投訴”呈堂為證。（見R v B [1997] Crim L.R. 220和香港特別行政區訴蘇子揚 CACC 201/2013等案）" } }, { "doc_id": 35, "seg_id": 132, "translation": { "en": "122.In any event, at trial the defence raised no objection to the production of the relevant recent complaint as evidence, and the undisputed fact was that Younger Sister had indeed complained to the mother about the applicant’s conduct. The dispute raised by the defence at trial was confined to whether the content of the complaint made by Younger Sister to the mother and the applicant’s confession were consistent with the Younger Sister’s allegations against him. Although what the applicant said in the record of interview and Mr Wong’s statement that Mrs Wong had received a complaint from Younger Sister that the applicant had indecently assaulted her were hearsay evidence, they were put forward either by way of agreed facts or by the defence. The trial judge was absolutely entitled to accept such evidence in considering the credibility of Younger Sister’s evidence.", "zh-HK": "無論如何，本案在原審時，辯方沒有反對有關的“新近投訴”呈堂為證，而妹妹有向母親投訴申請人的行為亦是不爭的事實。原審時辯方的爭議只局限在妹妹向母親作供投訴內容和申請人的招認是否和妹妹對申請人的指控吻合。雖然申請人在會面記錄的說法和黃先生指黃太太接受過妹妹曾投訴被申請人“非禮”等事項屬傳聞證據。但該些證據是以同意案情或是由辯方提出。原審法官絕對有權採納該些證據來考慮妹妹證供的可信性。" } }, { "doc_id": 35, "seg_id": 133, "translation": { "en": "123.Having carefully analyzed the relevant evidence, the trial judge formed the conclusion that the applicant’s confession was consistent with Younger Sister’s allegation and complaint, and that they were all relevant to Younger Sister’s allegation that the applicant had indecently assaulted her. Although there were discrepancies between the sisters’ accounts of the detailed content of the complaint, they both mentioned clearly that Younger Sister’s complaint concerned the applicant touching her private parts. The applicant’s confession was also consistent with the complaint. We agree with the trial judge’s findings.", "zh-HK": "原審法官經過小心分析有關證據後，得出的結論是申請人的招認和妹妹的指控和投訴是一致的，都是和妹妹指被申請人“非禮”一事有關。姊姊和妹妹就投訴的內容細節有出入，但她們都清晰地提到妹妹的投訴涉及申請人接觸到妹妹的下體。申請人的招認亦和該投訴吻合。本庭認同原審法官的裁決。" } }, { "doc_id": 35, "seg_id": 134, "translation": { "en": "124.The ground of appeal raised by Mr Khattak regarding recent complaint fails.", "zh-HK": "林大律師就“新近投訴”一事提出的上訴理由不成立。" } }, { "doc_id": 35, "seg_id": 135, "translation": { "en": "The order in which Dr Wong and Dr Lai were called to give evidence", "zh-HK": "黃醫生及黎醫生作供的次序" } }, { "doc_id": 35, "seg_id": 136, "translation": { "en": "125.The established legal principle is, if the prosecution can reasonably foresee that a particular piece of evidence has to be adduced to prove the offence, they must produce the evidence to the court as part of their case and should not wait until the defendant has finished giving evidence (see R v Scott [1984] 79 Cr App R 49).", "zh-HK": "確立的法律原則是，如控方能合理地預見需要引證某些證據才能證明有關罪行，控方必須在舉證時將該些證據向法庭展示，而不應等候至辯方舉證完畢（見R v Scott [1984] 79 Cr App R 49）。" } }, { "doc_id": 35, "seg_id": 137, "translation": { "en": "126.In the present case, the trial judge did consider Scott and other relevant cases. He stressed the following principle: “In considering whether the prosecution must call all witnesses before the defence case begins, an important test is whether the prosecution can reasonably foresee that they will need a particular witness in order to prove the offence with which the defendant is charged. If the answer is ‘yes’, the prosecution should not wait until the end of the defence case and then produce ‘rebuttal’ evidence”.", "zh-HK": "原審法官有考慮過Scott案和其他相關案例。原審法官強調以下原則“控方是否必須在辯方開始舉證之前傳召所有證人，一個重要的測試因素是控方是否可以合理地預見它是否需要該名證人的供詞來證明被告人面對的控罪。假若答案為‘是’，控方就不應該等待辯方舉證完畢後才提出它的‘反駁’證據”。" } }, { "doc_id": 35, "seg_id": 138, "translation": { "en": "127.In the present case, the prosecution did not have any evidence that the sisters were suffering from any mental illness, nor was there a reasonable basis on which the prosecution could so suspect. The defence relied solely on Dr Wong’s reports in saying that the sisters had mental illnesses.", "zh-HK": "在本案，控方沒有任何證據或合理基礎懷疑姊姊及妹妹患有任何精神病。辯方只是依靠黃醫生提供的報告指她們是精神病患者。" } }, { "doc_id": 35, "seg_id": 139, "translation": { "en": "128.The prosecution had never accepted Dr Wong’s allegations. The trial judge found that Dr Wong had a predetermined stance and that his claims were based on some superficial and non-objective points of view that were fraught with mistakes and loopholes.", "zh-HK": "控方由始至終都不接納黃醫生的指稱。原審法官指出黃醫生有預設立場，而其聲稱亦是建基在一些片面、錯漏百出及非客觀的立場。" } }, { "doc_id": 35, "seg_id": 140, "translation": { "en": "129.As the trial judge rightly pointed out, the sisters were no different from ordinary witnesses. The court still could convict the applicant on the basis of their evidence without the prosecution having to prove that they were not mentally ill. From the perspective of the prosecution, the claim that the sisters were mentally ill was not relevant to the charges. The prosecution was not even in a position to take the initiative of calling expert witnesses in an attempt to convince the court that the mental condition of the sisters was such that they were reliable witnesses.", "zh-HK": "誠如原審法官正確指出，姊姊和妹妹和一般證人無異。控方無須證明她們沒有精神病，法庭仍可以根據她們的證供將申請人定罪。聲稱姊姊和妹妹有精神病的說法，從控方的角度而言，和控罪是無關的。控方更無權主動傳召專家證人作供以圖說服法庭姊姊和妹妹的精神狀態顯示他們是可靠的證人。" } }, { "doc_id": 35, "seg_id": 141, "translation": { "en": "130.Although Dr Wong compiled a number of medical reports before he gave evidence, it was open to him to make additions to or deletions from those reports when he gave evidence. And the prosecution could not possibly know in advance what possible changes there might be to Dr Wong’s evidence under cross-examination. It was in fact impossible for Dr Lai to produce full rebuttal evidence until after Dr Wong had finished giving his evidence.", "zh-HK": "黃醫生作供前雖然有作出多份醫療報告，但他作供時仍可以增減該些醫療報告。控方事前亦不能知悉在盤問下，黃醫生證供可能出現的變化。黎醫生根本不可能在黃醫生作供完畢前提出全面反駁的證供。" } }, { "doc_id": 35, "seg_id": 142, "translation": { "en": "131.If a witness indeed suffers from mental illness, the reliability of his/her evidence may of course be affected, and the opposite party is entitled to adduce evidence that the mental condition of that witness would have affected the reliability of his/her evidence. This has been established in Toohey v Metropolitan Police Commissioner [1965] AC 595, in which Lord Pearce concluded as follows (at 609):", "zh-HK": "如某證人確實患有精神病，該名證人證供的可靠性當然可能會受影響，對方亦有權提出證據顯示該名證人的精神狀況會影響他的證供的可靠性。這點在Toohey v Metropolitan Police Commissioner [1965] AC 595案確立。在該案的判案書第609頁，Lord Pearce大法官作出以下結論：" } }, { "doc_id": 35, "seg_id": 143, "translation": { "en": "132.Having said that, it was necessary for the prosecution to have a complete grasp of such information as why Dr Wong concluded that the sisters suffered from delusional disorders, the basis of and reasons for his diagnosis, and how and to what extent any delusional disorders they were suffering from had rendered their evidence unreliable and incredible, before the prosecution could properly adduce evidence to rebut what Dr Wong said. It was absolutely reasonable and fair for the prosecution to request that Dr Lai be called only after Dr Wong had finished giving evidence.", "zh-HK": "但控方必須全面掌握黃醫生為何得到姊姊和妹妹患有妄想症的結論，他的診斷基礎和原因、為何她們所患的妄想症（如有的話）如何令她們的證供不可靠及不可信的程度等等資料才能恰當地提出反駁他說法的證據。控方要求黃醫生作供完畢才傳召黎醫生的做法絕對是合理和公平的。" } }, { "doc_id": 35, "seg_id": 144, "translation": { "en": "133.In R v Robinson [1994] 3 All ER 346 at 532C-D, Lord Taylor CJ had the following comment to make on the relevant issue:", "zh-HK": "Lord Taylor CJ在R v Robinson [1994] 3 All ER 346案的判案書第352C-D行就相關議題有以下評論：" } }, { "doc_id": 35, "seg_id": 145, "translation": { "en": "134.The trial judge held that Dr Wong was to give evidence first, and when he was giving evidence, the expert witness for the prosecution was allowed to listen to his evidence and provide the prosecutor with assistance as necessary. If the prosecution deemed it necessary at the close of the defence case, the prosecution could, if it considered necessary, call expert evidence in rebuttal; when the expert witness for the prosecution was giving evidence, the defence expert witness could be present in the court to listen to the evidence and provide assistance as necessary to the defence counsel; and if the expert witness for the prosecution put forward evidence and/or points which were not contained in his expert reports or not put to the expert witness for the defence in the course of cross-examination by the prosecutor, then the defence could apply to the court to call that expert witness to testify again on such new evidence or points. The approach taken by the trial judge was undoubtedly reasonable and took into account the rights and interests of both prosecution and defence.", "zh-HK": "原審法官裁定黃醫生要先作供，而當他作供時，控方的專家可以聆聽他的證供及向主控官提供所需協助；在辯方舉證完畢後，如控方認為有需要可以傳召控方專家證人提出反駁證供；當控方專家證人作供時，辯方專家證人可以在庭內聆聽及向辯方大律師提供協助；及如控方專家證人作供時提出的證供及/或論點沒有記載在他的專家報告，或沒有透過主控官的盤問向辯方專家證人提出，辯方可以向法庭申請重召辯方專家證人就該新證供及/或論點再次作供。原審法官的處理方法絕對是合理及有照顧到控辯雙方的權益。" } }, { "doc_id": 35, "seg_id": 146, "translation": { "en": "135.Furthermore, as far as the order of testimony of the respective expert witnesses was concerned, the issue is whether or not the approach taken by the trial judge would have been unjust to the defendant and rendered the trial unfair.", "zh-HK": "再者，就控辯雙方專家證人作供的次序，要關注的是原審法官的處理方法會否對被告人不公及會否導致審訊不公平。" } }, { "doc_id": 35, "seg_id": 147, "translation": { "en": "136.The question at that time pertained to the reliability of the expert witnesses. It involved the witnesses’ professional knowledge and experience and whether the tests they suggested were reliable and credible. It was not the case that the prosecution called the expert witness only after the defence had closed its case in order to fill in gaps in the factual evidence already adduced by the prosecution. The order in which the expert witnesses appeared in court would, by itself, hardly affect the reliability of their evidence, still less the court’s assessment of the reliability and credibility of their evidence.", "zh-HK": "有關爭議是專家證人的可靠性，涉及證人的專業知識、經驗及其主張的驗證方式是否可靠及可信。控方並非是在辯方結案後才傳召證人以填補控方原本提出的事實證據不足之處。專家證人出庭的先後次序本身不會影響他們的證供的可靠性，更不會影響法庭對他們證供的可靠及可信性的評核。" } }, { "doc_id": 35, "seg_id": 148, "translation": { "en": "137.We take the view that the decision of the trial judge on the order in which the respective expert witnesses testified in the court was comprehensive and reasonable, indicating a correct exercise of his discretion. As far as the aforesaid issue is concerned, the decision of the trial judge was in no way prejudicial to the applicant at all, still less did it render the trial unfair. There is no basis to support Mr Khattak’s argument that the approach taken by the trial judge might have rendered the trial unfair.", "zh-HK": "本庭認為原審法官就控辯雙方專家證人出庭作供的次序所作的裁決是全面和合理，亦是正確地行使他的酌情權。就上述議題，原審法官的裁決絕對沒有對申請人不利，更不會導致任何不公平的審訊。林大律師指原審法官的處理方法可能會導致不公審訊的說法沒有基礎支持。" } }, { "doc_id": 35, "seg_id": 149, "translation": { "en": "Unfair trial", "zh-HK": "不公平審訊" } }, { "doc_id": 35, "seg_id": 150, "translation": { "en": "138.Another complaint mounted by Mr Khattak is that the trial judge had excessively participated in questioning Dr Wong when he was giving evidence, and this might have given a reasonable bystander the impression that the trial judge had descended into the arena, thereby depriving the applicant of a fair trial. Mr Khattak cites a number of examples in support of his argument.", "zh-HK": "林大律師的另一投訴是原審法官在黃醫生作供過程中過度參與詢問他，可能令合理的旁觀者認為他進入了格鬥場，令申請人得不到公平的審訊。林大律師更提出多個例子來支持他的立場。" } }, { "doc_id": 35, "seg_id": 151, "translation": { "en": "139.We have carefully read the relevant transcript. The trial judge was then mainly trying to ascertain the basis of Dr Wong’s opinions and requesting him to provide further opinion or explanation and also testing the reliability and accuracy of the views he had expressed.", "zh-HK": "本庭有詳細參閱過有關謄本的內容。原審法官主要是要理解黃醫生意見的基礎及要求他提供進一步意見或解釋及測試黃醫生所表達的意見的可靠性及準確性。" } }, { "doc_id": 35, "seg_id": 152, "translation": { "en": "140.We should start by pointing out that Dr Wong was not an ordinary witness who gave factual evidence to the court. He was an expert witness in psychiatry who was explaining recondite medical problems to the court. The trial judge was required, and indeed duty-bound, to ensure he understood Dr Wong’s evidence and its implications. The questioning of Dr Wong by the trial judge was done for the sole purpose of testing the basis of and reasons for Dr Wong’s diagnosis and ascertaining his views on the reasons for and extent of the effect on the sisters’ reliability as witnesses. The trial judge had to decide whether Dr Wong’s evidence was objective and independent and whether his conclusions were justified. In respect of tenuous propositions, it was plainly normal for the trial judge to raise questions to ensure that he properly understood Dr Wong’s evidence. The law does not require the trial judge to silently hear weak or flawed arguments without raising any queries before he rules on the relevant question. To do so would not only be remiss of the trial judge but might even be unfair to Dr Wong, the reason being that queries raised by the trial judge would very likely prompt Dr Wong to provide clearer and more convincing explanations of his position.", "zh-HK": "本庭應先指出，黃醫生並非一名普通就事實向法庭陳述的證人。他是一名精神科專家證人，並向法庭解釋深奧的醫學問題。原審法官有需要、更有責任確保他明白黃醫生的證供及其影響。原審法官對黃醫生的提問，用意只是測試黃醫生診斷的基礎和原因及他為何認為姊姊和妹妹的可靠性受影響及影響的程度。原審法官要裁定黃醫生的證供是否客觀，是否獨立及其結論是否有充分理據支持。對某些說服力不強的說法，原審法官提出質疑以確保他恰當地理解黃醫生的證供亦是正常不過的。法律原則並不要求原審法官在面對一些說服力不強或充滿漏洞的理據，默默地聆聽而不作任何質疑便就相關議題作出裁決。該做法不但會可能是失職行為，更可能會對黃醫生造成不公，原因是在原審法官提出質疑時，他極可能就他所持的立場作出更清晰及更具說服力的解釋。" } }, { "doc_id": 35, "seg_id": 153, "translation": { "en": "141.As the trial judge rightly pointed out, “when dealing with the evidence of an expert, [he] must examine the evidence critically instead of accepting it in its entirety without questioning it just because it comes from an expert”.", "zh-HK": "正如原審法官正確指出“在處理專家的證供時，（他）必須抱有批判性的態度，詳細審視證供，而不是因為證供來自專家便照單全收”。" } }, { "doc_id": 35, "seg_id": 154, "translation": { "en": "142.In R v Yeung Mau Lam [1991] 2 HKLR 468, a case Mr Khattak has referred to, the Court held as follows on the issue of the propriety of the questioning of a witness by the judge (at 473):", "zh-HK": "林大律師援引的R v Yeung Mau Lam [1991] 2 HKLR 468一案，就法官詢問證人是否恰當的問題作出以下裁定（見判案書473頁）：" } }, { "doc_id": 35, "seg_id": 155, "translation": { "en": "Questions by their number alone are not decisive;", "zh-HK": "法官發問問題的數目本身並非決定性之因素；" } }, { "doc_id": 35, "seg_id": 156, "translation": { "en": "The quantity and quality of the questions must be looked at as factors which react upon each other;", "zh-HK": "必需考慮問題之性質及數量及二者互動下所引起之後果；" } }, { "doc_id": 35, "seg_id": 157, "translation": { "en": "Actual bias on the part of the judge need not be established, it being enough if by his conduct he would be thought by the informed bystander to be taking over the conduct of the case from the prosecution;", "zh-HK": "無需確立法官事實上有偏見，只要法官之行為令一名對事件有認知的旁觀者認為法官已取代了主控之職能，便已足夠；" } }, { "doc_id": 35, "seg_id": 158, "translation": { "en": "Where a judge sits without a jury, the appeal court must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena instead of remaining objective; and", "zh-HK": "如果原審時法官是單獨行事，而非聯同陪審團審理事件，上訴法庭應考慮以下問題；究竟一名聆聽案件的人士會否合理地得出一個結論，就是法官提出之問題顯示他已加入了「格鬥場」，而並非保持客觀之態度；及" } }, { "doc_id": 35, "seg_id": 159, "translation": { "en": "The ultimate question for the consideration of an appellate court is whether the judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.", "zh-HK": "上訴法庭最終要考慮之問題是究竟原審法官的行為會否令一名聆聽案件及知情之旁觀者認定被告人沒有獲得一個公平之審訊。" } }, { "doc_id": 35, "seg_id": 160, "translation": { "en": "143.We do not agree that the trial judge had contravened the principles laid down in Yeung Mau Lam. We also need to emphasize that, when considering the propriety of questioning by the trial judge, it is important to bear in mind it was the duty of the trial judge throughout the trial to ensure that it was conducted in a proper and coherent manner.", "zh-HK": "本庭不同意原審法官有違反Yeung Mau Lam案定下的原則。本庭亦須強調，在考慮原審法官之詢問是否恰當，要緊記由始至終原審法官有責任確保審訊是正當地及有條理地進行。" } }, { "doc_id": 35, "seg_id": 161, "translation": { "en": "144. We have considered in detail the overall circumstances of the questioning of Dr Wong by the trial judge. In our view, the trial judge did no more than ask Dr Wong further questions on areas about which the trial judge harboured doubts, with a view to understanding the basis of Dr Wong’s opinion and seeking further explanation by Dr Wong on his opinions.", "zh-HK": "本庭已有詳細考慮過林大律師就原審法官詢問黃醫生的整體情況。本庭認為原審法官只是就某些他有疑問的範疇向黃醫生進一步提問，目的是要理解黃醫生意見的基礎及要求黃醫生就其意見作出進一步的解釋。" } }, { "doc_id": 35, "seg_id": 162, "translation": { "en": "145. The trial judge also asked Dr Wong to elaborate on some of the areas about which the trial judge had doubts, with a view to understanding the basis of and reasons for the diagnosis made by Dr Wong, so as to ensure that all relevant and material details were fully considered before a proper decision was made on the relevant issues.", "zh-HK": "原審法官亦有就某些他有疑問的地方要求黃醫生作出更詳細的闡述，目的亦是理解黃醫生診斷的基礎和原因以確保他有全面考慮過所有相關及重要的細節，就有關議題作出恰當的裁決。" } }, { "doc_id": 35, "seg_id": 163, "translation": { "en": "146. The other purpose of questioning Dr Wong was obviously to test whether the understanding Dr Wong relied on before making the diagnosis was sufficient and convincing or whether it was self-contradictory or illogical.", "zh-HK": "原審法官的另一目的明顯是為了測試黃醫生在作出其診斷結果前所依賴的理解是否足夠、是否具說服力及是否有自相矛盾或不合邏輯。" } }, { "doc_id": 35, "seg_id": 164, "translation": { "en": "147. The wording of the trial judge’s questions was neutral, not sarcastic, and in no way hostile. Those questions were clearly asked with a purpose — to ensure that the trial judge understood clearly the basis and logic of Dr Wong’s opinions so as to assist the trial judge in deciding whether the conclusion Dr Wong reached was credible and justified.", "zh-HK": "原審法官的發問用詞中立、沒有譏諷性更不具任何敵意。原審法官的發問亦明顯是有目的而發，以確保他清楚明白黃醫生所表達的意見的基礎及邏輯性，以協助他裁決黃醫生的結論是否合信，是否有足夠論據支持。" } }, { "doc_id": 35, "seg_id": 165, "translation": { "en": "148. We agree with the approach adopted by the trial judge. Indeed, the ground of appeal that the trial judge had descended into the arena and deprived the applicant of a fair trial should, in our view, not have been advanced at all.", "zh-HK": "本庭認同原審法官的處理方法。本庭更認為，指原審法官進入了格鬥場而導致申請人未能獲得公平審訊的上訴理由根本不應該提出。" } }, { "doc_id": 35, "seg_id": 166, "translation": { "en": "Criticisms levelled at Dr Wong’s evidence", "zh-HK": "對黃醫生證供的批評" } }, { "doc_id": 35, "seg_id": 167, "translation": { "en": "149. In his Reasons for Verdict, the trial judge went to great lengths to analyze Dr Wong’s evidence and explain why he considered Dr Wong’s opinions incredible and whether any weight should be attached to them. The trial judge found that Dr Wong had made factual judgments and diagnoses without first obtaining comprehensive, accurate and objective information, and this showed that he had a preconceived position. The trial judge set out dozens of reasons and factors in support of his conclusion.", "zh-HK": "在其裁決理由書，原審法官花了極大篇幅分析黃醫生的證供及解釋為何他認為黃醫生的意見不合信，應不應賦予任何比重。原審法官認為黃醫生是在沒有取得全面、準確和客觀的資料便作出事實判斷及診斷，顯示他有既定立場。原審法官列出數以十計的理由和因素來支持他的上述結論。" } }, { "doc_id": 35, "seg_id": 168, "translation": { "en": "150. Mr Khattak submits that some of the reasons given by the trial judge were not valid, that some of his analysis went against the evidence, and that his conclusions were made without considering all the relevant evidence. Mr Khattak further stresses that the prosecution had not adduced any evidence to rebut Dr Wong’s evidence.", "zh-HK": "林大律師指原審法官的部分理據不成立，其某些分析和證據有抵觸的及作出的結論是沒有全面考慮有關證據。他更強調控方沒有提出任何證據反駁黃醫生的證供。" } }, { "doc_id": 35, "seg_id": 169, "translation": { "en": "151. We do not consider it necessary to dwell too much on the issue. An expert witness may give evidence in his/her area of ​​expertise but is not entitled to rule on issues. Based on Dr Wong’s evidence, the defence argued that the sisters were both suffering from delusional disorders, rendering their allegations against the applicant unreliable. The defence also argued that Younger Sister could not possibly recall in detail what happened when she was being indecently assaulted at the age of 5. The prosecution challenged Dr Wong’s statements, arguing that his conclusion rested upon an insufficient basis, in particular, he drew his conclusion without having diagnosed their mental conditions and without even having met them first. All these issues had to be decided by the trial judge on the basis of all the evidence.", "zh-HK": "本庭不認為有需要在這問題上過度着墨。專家證人可以在其專業範疇作供，但無權就爭議作出裁決。辯方根據黃醫生的證供指姊姊及妹妹都患有妄想症，導致她們針對申請人的指控不可靠。辯方亦指妹妹不可能記得在5歲時被“非禮”的詳情。控方挑戰黃醫生的說法，指他的結論所依賴的基礎不足，特別是他沒有診斷過她們的精神狀況而作出，結論前更沒有和她們見過面。上述議題都須由原審法官根據全部證據作出裁決。" } }, { "doc_id": 35, "seg_id": 170, "translation": { "en": "152. Dr Wong’s statement that, in the absence of an opportunity to examine the patients, a correct diagnosis could still be made via assessments and diagnosis made solely on the basis of the information, is neither reasonable nor credible. And it is against common sense and unconvincing to say, as Dr Wong did, that based solely on his observations of the sisters when they gave evidence in court, he was in a position to confirm that they were suffering from mental illnesses. The trial judge was perfectly entitled to reject such bold statements of Dr Wong.", "zh-HK": "黃醫生指可以在沒有機會檢驗過病人的情況下，單單根據資料來作出評估及診斷就能得出正確診斷，絕非合理和合信的說法。而他指以觀察姊姊和妹妹作供亦足以令他能確認她們患有精神病的說法亦有違常識，也不具說服力。原審法官絕對有權不接納黃醫生的大膽說法。" } }, { "doc_id": 35, "seg_id": 171, "translation": { "en": "153. Mr Khattak stresses that Dr Wong’s testimony had not been challenged by Dr Lai’s evidence or other evidence adduced by the prosecution. We agree that when an issue can only be answered on the basis of the expertise of an expert witness, the court should not ignore the evidence of that witness. We also accept that the court should not, for no reason, reject the professional opinion of an expert witness which has not been challenged. (See, for example, Anderson v R [1972] AC 100, Taylor v R (1978) 22 ALR 599)", "zh-HK": "林大律師強調黃醫生的證供沒有受到黎醫生或其他控方提出的證據挑戰。本庭同意當某議題的答案只能根據專家證人的專業知識作出，法庭不應忽視該名專家證人的證供。本庭亦接納當一名專家證人的專業意見未受挑戰時，法庭不應無故地拒絕接納該些意見。（見Anderson v R [1972] AC 100、Taylor v R (1978) 22 ALR 599等案）" } }, { "doc_id": 35, "seg_id": 172, "translation": { "en": "154.However, it is also an established principle that if the testimony of an expert witness is challenged and the facts and circumstantial evidence of the case throw doubt on the testimony of the expert witness, the Court is also entitled to reject his evidence even in the absence of any evidence of rebuttal from the opposite party.", "zh-HK": "但另一確立原則是如某專家證人的證供被挑戰，而案件的案情及環境證據令該名專家證人的證供有疑問，即使對方沒有提出任何反駁證據，法庭亦有權拒絕接納該名專家證人的證供。" } }, { "doc_id": 35, "seg_id": 173, "translation": { "en": "155. The issue in Walton v R [1978] AC 788 was how the defence of “diminished responsibility” was to be applied in a murder case.", "zh-HK": "Walton v R [1978] AC 788案涉及的議題是在謀殺案件中如何應用“減責神志失常”（Diminished responsibility）這答辯理由。" } }, { "doc_id": 35, "seg_id": 174, "translation": { "en": "156. Lord Keith of Kinkel discussed at length the question of how a court should deal with the evidence of an expert witness on the issue, as follows (at 793):", "zh-HK": "Lord Keith of Kinkel 法官就法庭如何處理專家證人就該議題的證供時有以下詳論（判案書第793頁）：" } }, { "doc_id": 35, "seg_id": 175, "translation": { "en": "157. Dr Lai expressly stated that Dr Wong’s diagnostic approach was unprofessional and improper, and that the information he cited was fragmented and incomplete. At trial, the prosecution strongly opposed Dr Wong’s opinion that the sisters had delusional disorder and that Younger Sister could not remember in detail the indecent assault committed on her when she was 5 years old. The prosecution also set out in detail the mistakes and loopholes in the arguments on which Dr Wong formed his opinions, and the trial judge gave a detailed account of those mistakes and loopholes.", "zh-HK": "黎醫生表明黃醫生的診斷方法不專業、不恰當，而其引述的資料更是零碎不全。原審時，控方強烈反對黃醫生的意見，指姊姊和妹妹患有妄想症，及妹妹不能記得在5歲時被“非禮”的詳情。控方亦詳細列出黃醫生所持意見的立論點的錯漏，而原審法官有詳細列出該些錯漏。" } }, { "doc_id": 35, "seg_id": 176, "translation": { "en": "158. There is no need for us to set out those defects again; it suffices that they are both clear and obvious. It should be pointed out that in Re LLC (Statutory Will) [2010] 3 HKLRD 16, in which Dr Wong also gave evidence as an expert witness, he was criticized by the court for assuming the role of an advocate and providing his own opinion on the factual disputes between the parties. He made the same mistake in the present case – he not only assumed the role of an advocate but even made unfounded allegations against Grand Aunt and Grand Uncle, saying that they had exercised undue influence over the sisters.", "zh-HK": "本庭無需要再次列出該些錯漏，但該些錯漏是明確的，亦是顯而易見的。本庭應指出黃醫生以專家證人身份作供時扮演訴訟律師的角色，就與訟雙方的事實爭議提供自己的意見，曾在Re LLC (Statutory Will) [2010] 3 HKLRD 16案備受法庭的批評。在本案，黃醫生亦是犯了同一錯誤，不但有扮演訴訟律師的角色，更在沒有基礎下指姑婆和姑丈公有對姊姊和妹妹施加不當的影響。" } }, { "doc_id": 35, "seg_id": 177, "translation": { "en": "159. The trial judge’s rejection of Dr Wong’s diagnosis was amply justified. We agree with the trial judge’s ruling that Dr Wong’s conclusions were based on biased, fragmented, unverified and unreliable information and that those conclusions were also unreliable. We would go further by expressing the view that Dr Wong was not a reliable expert witness at all.", "zh-HK": "原審法官否定黃醫生診斷結論是有充份理由支持的。本庭認同原審法官的結論指黃醫生的結論是建基在偏見、零碎、未經證實和不可靠的資料，而該些結論亦是不可靠的。本庭更認為黃醫生根本並非是一名可靠的專家證人。" } }, { "doc_id": 35, "seg_id": 178, "translation": { "en": "160. The trial judge was entitled to reject Dr Wong’s evidence in its entirety and to find that neither of the sisters was suffering from any delusional disorder. We concur with those findings, which are justified and correct.", "zh-HK": "原審法官有權全盤否定黃醫生的證供並裁定姊姊和妹妹都沒有患任何妄想症是有根據和正確的裁決，本庭認同。" } }, { "doc_id": 35, "seg_id": 179, "translation": { "en": "161. We also have to point out that Dr Wong’s performance in the present case completely failed to demonstrate the professionalism that the court requires of expert witnesses. As a result of his unprofessional and unreliable opinions, the sisters were, in giving evidence, made to face the unwarranted accusation that they had delusional disorders. We express our deep regret about this.", "zh-HK": "本庭亦需指出，黃醫生在本案的表現，完全未能達到法庭對專家證人的專業要求，而因為他不專業及不可靠的意見，令姊姊和妹妹在作供時要面對她們患上妄想症的無理指控，本庭對此深表遺憾。" } }, { "doc_id": 35, "seg_id": 180, "translation": { "en": "Credibility of the sisters", "zh-HK": "姊姊和妹妹的可信性" } }, { "doc_id": 35, "seg_id": 181, "translation": { "en": "162. Having resolved the issues raised by the defence that the sisters were suffering from delusional disorders and Younger Sister was unable to recall the details of the indecent assault upon her when she was 5, the main issue in the present case was whether the sisters were veracious and reliable witnesses.", "zh-HK": "解決了辯方所指姊姊和妹妹患有妄想症及妹妹不能記得5歲時被“非禮”的詳情這些議題後，案件主要爭議是姊姊和妹妹是否誠實和可靠的證人。" } }, { "doc_id": 35, "seg_id": 182, "translation": { "en": "163. It was not the defence case that the sisters had any motive to falsely accuse their uncle (the applicant).", "zh-HK": "辯方沒有指姊姊或妹妹有任何動機說謊誣告她們的姨丈（申請人）。" } }, { "doc_id": 35, "seg_id": 183, "translation": { "en": "164. The sisters described in detail what happened when the applicant indecently assaulted them. On the undisputed evidence, on the evening of the day of the offence Younger Sister complained to her mother about the applicant’s conduct, and shortly after the incident Younger Sister also related what had happened to her mother and Aunt Kum Kum.", "zh-HK": "她們有詳細描述申請人“非禮”她們的經過。沒有爭議的證據顯示申請人“非禮”妹妹當晚，她有向母親投訴申請人的行為，而事後不久亦有向母親及琴琴姨覆述事件。" } }, { "doc_id": 35, "seg_id": 184, "translation": { "en": "165. The confession made by the applicant during the video-recorded interview was also consistent with the prosecution allegation against him. The entries in Elder Sister’s diary also matched her allegations against the applicant, indicating that her allegations against the applicant were not recent fabrications. The trial judge found that Elder Sister’s diary could be used to prove the consistency of her allegations against the applicant and also to answer the defence allegation that the accusations were recent fabrications made by Elder Sister when she made the report to the police on 3 April 2013. The trial judge’s approach was correct.", "zh-HK": "申請人在錄影會面時所作的招認亦符合控方針對他的指控。姊姊的日記記錄亦和她針對申請人的指控吻合，顯示她對申請人的指控並非新近捏造的。原審法官認為姊姊的日記可以用來證明她對申請人的指控是一貫性的，亦可以用來回應辯方提出姊姊是在2013年4月3日報警時才作出新近捏造的指控。原審法官的處理方法正確。" } }, { "doc_id": 35, "seg_id": 185, "translation": { "en": "166. Apart from the sisters, the applicant was the only person who had direct knowledge of the incidents. As he had exercised his right to remain silent, there was no evidence to directly refute the sisters’ allegations against him.", "zh-HK": "除了姊姊和妹妹外，申請人是唯一對事件直接知情的。他行使其保持緘默的權力，因此沒有證據直接反駁姊姊和妹妹對申請人的指控。" } }, { "doc_id": 35, "seg_id": 186, "translation": { "en": "167. This being the case, the trial judge was fully justified in finding that both sisters were veracious and reliable witnesses. In the context of the present case, the contradictions pointed out by Mr Khattak, whether between the evidence of the sisters or between their evidence and Grand Aunt’s evidence, have no significance whatsoever and do not render the convictions unsafe.", "zh-HK": "在上述情況下，原審法官絕對有理由裁定姊姊和妹妹都是誠實可靠的證人。林大律師指姊姊/妹妹相互的證供和她們的證供和姑婆的證供的矛盾，以本案的背景而言，根本不具任何重要性，更不會影響定罪的穩妥性。" } }, { "doc_id": 35, "seg_id": 187, "translation": { "en": "168. Cousin Wai was obviously a witness who had taken sides. Her evidence was not objective, and the conclusion drawn therefrom was based on some uncertain factors. In the context of the present case, Mr Wong’s testimony deserved the criticisms it received from the trial judge. The trial judge was entitled to find that neither Cousin Wai’s evidence nor Mr Wong’s evidence served to raise any doubt about the sisters’ evidence.", "zh-HK": "慧表姐明顯是一名有立場的證人。她的證供不客觀，而其得出的結論亦是建基在某些不確定的因素。以案件的背景而言，黃先生的證供值得原審法官的批評。原審法官有權認定他們的證供都不構成針對姊姊和妹妹證供的疑點。" } }, { "doc_id": 35, "seg_id": 188, "translation": { "en": "169. On the evidence of the sisters as accepted by the trial judge, the applicant had indecently assaulted them in the manner they described, and he had an indecent intent when he did those acts of indecent assault. It was reasonable and correct for the trial judge to convict the applicant on the two counts of indecent assault. We agree with those verdicts.", "zh-HK": "根據原審法官接納姊姊和妹妹的證供，申請人確有如她們所指的方式“非禮”她們，而他作出該些“非禮”行為時，申請人是有猥褻意圖的。原審法官裁定申請人兩項“非禮”罪罪名成立是合理和正確的。本庭認同。" } }, { "doc_id": 35, "seg_id": 189, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 35, "seg_id": 190, "translation": { "en": "170. We find nothing unsafe in the convictions against the applicant in respect of the two counts of indecent assault. We have therefore dismissed his application for leave to appeal against convictions and affirmed the convictions.", "zh-HK": "對申請人被裁定兩項“非禮”控罪罪名成立，本庭不覺有任何不穩妥的地方。因此，本庭駁回申請人就定罪提出的上訴許可申請，維持原判。" } }, { "doc_id": 35, "seg_id": 191, "translation": { "en": "Sentence", "zh-HK": "判刑" } }, { "doc_id": 35, "seg_id": 192, "translation": { "en": "171. This is an extremely serious case of “indecent assault. As an elder member of the family, the applicant took the opportunity of family gatherings to indecently assault two nieces aged 5 and 11 respectively. We do not intend to go into the applicant’s acts of indecent assault again. It suffices for us to point out the applicant’s conduct, especially that towards Younger Sister, was at a very high level of indecency. The applicant’s misconduct left an indelible mark in the minds of the sisters.", "zh-HK": "本案是一宗極為嚴重的“非禮”案件。申請人以長輩身份，在家庭聚會期間趁機“非禮”兩名分別只有5歲和11歲的姨甥女。本庭不打算複述申請人的“非禮”行為，而只需指出申請人的行為，特別是針對妹妹的行為的猥褻程度甚高。申請人的不當行為更在姊姊和妹妹心靈上留下不可磨滅的陰影。" } }, { "doc_id": 35, "seg_id": 193, "translation": { "en": "172. Nor can we ignore the fact that the applicant’s improper conduct will distress the sisters for a long time to come. Although there are no expert reports, such distress is obvious, and it is also the type of post-traumatic stress that any girl who has been sexually molested will certainly suffer from.", "zh-HK": "本庭亦不能忽視申請人的不當行為會長時間困擾姊姊和妹妹。雖然沒有專家作出報告，但該些困擾是顯而易見，亦是任何女童受性侵犯後都必會面對的創傷後遺症。" } }, { "doc_id": 35, "seg_id": 194, "translation": { "en": "173. The trial judge pointed out that the court was under a duty to protect children who were vulnerable to sexual assault and to impose deterrent sentences on offenders in order to reflect the disgust that members of the public feel towards this kind of offence and also redress for the victims and their families. The trial judge took the view that when the offender was the victim’s elder, an even more severe sentence would be passed because the elder’s misconduct was a breach of trust and distorted normal familial relationships. We could not agree more with the trial judge’s comment.", "zh-HK": "原審法官指出法庭有責任保護容易受到性侵犯傷害的兒童，及要以阻嚇性的刑期來表達公眾對這些罪行的厭惡及為受害人及其家人伸冤。原審法官認為當犯案者是受害人的長輩，法庭更會判處較嚴峻的刑期，因為該些長輩的不當行為破壞誠信及有異倫常。原審法官的看法絕對正確。" } }, { "doc_id": 35, "seg_id": 195, "translation": { "en": "174. The cases cited by Mr Khattak do not support his claim that the total sentence imposed on the applicant was excessive. The delay he pointed out was the result of the defence allegation that Younger Sister/Elder Sister was mentally ill, but as mentioned above, the basis of the allegation was simply inadequate. And that also accounted for the repeated adjournment of the case and the greater length of trial as a result. The delay in the present case does not constitute a mitigating factor.", "zh-HK": "林大律師提出的案例不支持他指申請人被判的總刑期過重的說法。他所指的延誤部分是因為辯方提出姊姊/妹妹患有精神病，但正如上文所述，該指稱根本沒有足夠基礎支持。案件多次押後導致審訊時間較長亦主要是因為該原因造成。本案的延誤並不構成減刑理由。" } }, { "doc_id": 35, "seg_id": 196, "translation": { "en": "175. In any event, given the background and the modus operandi of the offences, the sentences, whether taken individually or as a whole, are in no way manifestly excessive, and we have no reason to vary them.", "zh-HK": "無論如何，以案件的背景及犯案手法，申請人被判的個別刑期及總刑期都絕非明顯過重，本庭沒有基礎更改。" } }, { "doc_id": 35, "seg_id": 197, "translation": { "en": "176. Therefore, we have also dismissed the applicant’s application for leave to appeal sentence and affirmed the sentence.", "zh-HK": "因此，本庭亦駁回申請人針對判刑的上訴許可申請，維持原判。" } }, { "doc_id": 35, "seg_id": 198, "translation": { "en": "Mr Nicholas Wong, SPP of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級檢控官黃俊賢代表。" } }, { "doc_id": 35, "seg_id": 199, "translation": { "en": "Mr Shahmim K Khattak and Mr Anthony Lai, instructed by Poon & Cheung, for the Applicant", "zh-HK": "申請人：由潘繼洪，張宗泉律師行轉聘大律師林沙文及大律師黎家傑代表。" } }, { "doc_id": 36, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 36, "seg_id": 2, "translation": { "en": "Application for leave to appeal against sentence", "zh-HK": "刑期上訴申請" } }, { "doc_id": 36, "seg_id": 3, "translation": { "en": "The applicant was the 1st defendant at trial. He and the other two defendants were jointly charged with 11 counts of “conspiracy to defraud”, contrary to Common Law. The case was tried in the District Court before Her Honour Judge Yuen. Of the 11 counts, the applicant was convicted of 9 counts (namely, the 3rd charge to the 11th charge). Judge Yuen adopted a starting point of 3 years and 6 months’ imprisonment for each count and deducted it by two months to reflect the applicant’s good family background. The applicant was sentenced to a term of 3 years and 4 months’ imprisonment on each count to be served concurrently. The applicant sought leave to appeal against sentence. After hearing, we dismissed the application. The following are the reasons for judgment.", "zh-HK": "申請人是原審時的第一被告人。他與其他兩名被告人一同" } }, { "doc_id": 36, "seg_id": 4, "translation": { "en": "Facts of the case", "zh-HK": "被控十一項「串謀詐騙罪」，違反普通法。案件經區域法院法官源麗華審理後，申請人被裁定十一項控罪中的九項控罪(即第三至十一項控罪)罪名成立。源法官以三年六個月監禁作為每項控罪的量刑基準，扣減其中兩個月以反映申請人的良好家庭背景因素，判處申請人每項控罪入獄三年四個月，所有刑期同期執行。申請人就刑期提出上訴許可申請。本庭於聆訊後駁回申請，以下是本庭的判案理由。" } }, { "doc_id": 36, "seg_id": 5, "translation": { "en": "The applicant was one of the directors and shareholders of a subcontractor company, that subcontracted from a main contractor that was a building maintenance and refurbishment work company. The applicant held 20% of the shares of the subcontractor company. The subcontractor company subcontracted works to other sub-subcontractors which collected fees inclusive of both labour and materials. Initially, the subcontractor paid the sub-subcontractors work fees by way of cheques. Later on, letters of credit issued by banks were used for payment of the relevant fees instead. The applicant was charged with using false documents to apply for letters of credit from banks. The beneficiaries of the letters of credit were the 9 sub-subcontractors. The applicants and the other defendants falsely represented to the banks that the letters of credits were applied for the purpose of making payment for the purchase of building materials. However, the genuine purpose was, indeed, to pay for the work fees of the sub-subcontractors (the 3rd to the 10th charge) or to compensate a worker of a sub-subcontractor for his wages during his leave due to work injury (the 11th charge). The 9 counts of which the applicant was convicted involved 3 banks and a total of 27 local letters of credit. The amount involved in these letters of credit exceeded HK$9,000,000.", "zh-HK": "案情" } }, { "doc_id": 36, "seg_id": 6, "translation": { "en": "Legal principles", "zh-HK": "申請人是一間承辦大廈維修及翻新工程公司的二判商的其中一名董事及股東，他佔該公司百分之二十的股份。該二判商將工程分判給其他分判商。分判商以連工包料的方式收取費用。二判商最初以支票支付工程費給分判商，但後來改以銀行信用証來支付有關費用。申請人被控與其他被告人以虛假文件向銀行申請信用証。信用証的受益人是九名分判商。申請人及其他被告人向銀行訛稱申請信用証的用途是支付購買建築材料的費用，但事實上真正的目的是用作支付分判商的施工費用(控罪三至十)或用作賠償分判商工人的工傷休假薪金(控罪十一)。申請人被裁定罪名成立的九項控罪涉及三間銀行共二十七張本地的信用証。這批信用証所涉及的款額愈HK$9,000,000。" } }, { "doc_id": 36, "seg_id": 7, "translation": { "en": "The Court of Appeal has stated clearly in a number of authorities that the use of false document to obtain a letter of credit from a bank is a serious offence. First, it undermines the reputation of Hong Kong as an international financial and banking centre. Modern commercial activities generally rely on a documentary system for loan and credit facilities. Under normal circumstances, a bank relies on the truthful documents from both sides as the basis for approving loans, issuing letters of credit and making payment. Hence, the Court has to ensure that this type of commercial activity will not be made use of by criminals. Second, a bank relies upon the goods stated in the letter of credit as the security for the loan, so as to safeguard the bank from loss. If the commercial transaction so stated is in fact non-existent, the bank does not have sufficient security and has to bear an extremely high risk. Even if the bank is, ultimately, able to recover the loan and suffers no real loss, it does not in any way mean that the bank needs not face the economic risk arising from an applicant’s use of fraudulent documents to apply for the bank’s letter of credit. (See: The Queen v Chan Kam-chuen [1995] 2 HKCLR 259; HKSAR v Kwong Shing-cheong, Stephen (CACC 555/2002); HKSAR v Leo Yee Sang Patrick (CACC 494/2004); HKSAR v Chu Wai San and Others (CACC 311/2006); HKSAR v Law Chi Man Kenneth (CACC 356/2006); Secretary for Justice v Grossmann Rainer Horst and Another (CAAR 13/2006) and HKSAR v Leung Wan Keung (CACC 275/2009).", "zh-HK": "法律原則" } }, { "doc_id": 36, "seg_id": 8, "translation": { "en": "Although the Court of Appeal has not laid down any sentencing guidelines for “fraud” by using false documents to apply for a letter of credit, it has stated clearly that the Court has to take into account factors including the amount of money involved, the number of banks deceived, the period over which the fraudulent act was committed, whether the banks had suffered any loss and the roles played by each of the defendants.", "zh-HK": "上訴法庭已在多宗案例中清楚說明，以虛假文書獲取銀行信用証是嚴重的罪行。第一，有關行為會令香港作為國際金融及銀行中心的名譽受損。現代商業活動普遍以文書的形式進行貸款及融資活動。在一般情況下，銀行有賴雙方提供真實的文件作為批出貸款、發出信用証及支付款項的基礎，故此法庭必須確保這種類的商業活動不會被不法分子利用。第二，銀行是以信用証上所說的貨物作為借貸的抵押品，以保障銀行不會蒙受損失。但如果所報稱的商業交易根本不存在，銀行便沒有獲得足夠的擔保及需承擔極高的風險。就算銀行最終可收回貸款及沒有遭受實質損失，這也不表示銀行不須面對申請人以虛假文書申請銀行信用証的經濟風險(見：The Queen v Chan Kam-chuen [1995] 2 HKCLR 259； HKSAR v Kwong Shing-cheong, Stephen (CACC 555/2002); HKSAR v Leo Yee Sang Patrick(廖義生)(CACC 494/2004); HKSAR v Chu Wai San and Others, (CACC 311/2006); HKSAR v Law Chi Man Kenneth (羅稚岷)(CACC 356/2006); Secretary for Justice v Grossmann Rainer Horst and Another (CAAR 13/2006) 及香港特別行政區訴梁雲强(CACC 275/2009)。" } }, { "doc_id": 36, "seg_id": 9, "translation": { "en": "In the case of Law Chi Man Kenneth, in order to defraud the banks, the defendant specially established a company, altered monthly bank statements and provided fictitious information in relation to buyers, suppliers and factories. As a result, the banks suffered losses that amounted to HK$9,800,000. The Court of Appeal adopted a starting point of 4 years’ imprisonment for each of the offences of the defendant, making a total of 6 years’ imprisonment for the three offences.", "zh-HK": "上訴法庭雖然沒有就以虛假文書申請信用証的「詐騙罪」作出刑期的量刑指引，但已經說明法庭是需要考慮案件所涉及的金額、受騙銀行的數目、詐騙行為持續時間多久、銀行有否蒙受損失及各被告人所扮演的角色因素。" } }, { "doc_id": 36, "seg_id": 10, "translation": { "en": "In the case of Kwong Shing-cheong, Stephen, the defendant obtained 3 letters of credit using false documents and the amount involved was HK$7,800,000. The Court of Appeal considered a starting point of 3 years’ imprisonment too low.", "zh-HK": "在羅稚岷一案，被告人為了向銀行詐騙而特地成立了一間公司、擅改銀行的月結單及提供虛假買家、供應商及廠房資料，導致銀行蒙受HK$9,800,000的損失。上訴法庭裁定被告人每項控罪的量刑基準為四年監禁及三項控罪的總刑期為六年監禁。" } }, { "doc_id": 36, "seg_id": 11, "translation": { "en": "The applicant’s grounds of reduction of sentence", "zh-HK": "在Kwong Shing-cheong, Stephen一案，被告人以虛假文書獲得三張信用証，涉及的款額為HK$7,800,000。上訴法庭認為三年監禁的量刑基準是過低的。" } }, { "doc_id": 36, "seg_id": 12, "translation": { "en": "Mr. Alex Ng, counsel for the applicant, points out that Judge Yuen neglected that there were in fact genuine transactions underlying eight of the letters of credit involved in this case, namely, the building materials provided by the sub-subcontractors. This situation differentiates this case from the other cases with no real transactions. In the applicant’s view, part of the work fees paid to the sub-subcontractors included material fees. Thus the risks borne by the banks were relatively low.", "zh-HK": "申請人減刑理由" } }, { "doc_id": 36, "seg_id": 13, "translation": { "en": "Besides, Mr. Ng points out that the culpability of the applicant should be the least amongst the three defendants. The 2nd defendant was the majority shareholder of the subcontractor group of companies whereas the 3rd defendant was the financial controller.", "zh-HK": "代表申請人的吳政煌大律師指出源法官忽略了本案涉及的其中八項銀行信用証其實是有實質的交易支持的，即分判商所提供的建築材料，這情況是有別於其他沒有實質交易活動的案件。申請人認為部分支付給分判商的施工費中包括物料費，所以銀行所承受的風險是較低。" } }, { "doc_id": 36, "seg_id": 14, "translation": { "en": "Views of this Court", "zh-HK": "另外，吳大律師指申請人的罪責應該是三名被告人之中最低。第二被告人是二判商集團的大股東，第三被告人是財務總監。" } }, { "doc_id": 36, "seg_id": 15, "translation": { "en": "We do not agree with the arguments of the applicant. Obviously, the relevant work fees covered both labour and materials of the subcontracted works. The sub-subcontractors had never classified the amount into different fee items like fees for the purchase of materials, wages for workers or profits etc. In fact, Judge Yuen had already dealt with the relevant topic in the judgment. In respect of the 4th charge, Judge Yuen said:", "zh-HK": "本庭意見" } }, { "doc_id": 36, "seg_id": 16, "translation": { "en": "‘166.PW9 pointed out that “Kei Yip” did not sell furniture to “Bolton Construction Company Limited”. He provided furniture and renovation work inclusive of both labour and materials.", "zh-HK": "本庭不同意申請人的論點。明顯地，有關的工程費用是連工包料的分判工程。分判商從未把款項分類為購買物料費用、工人工資或利潤等不同費用項目。其實，源法官判案書上已經處理了有關的議題。就第四項控罪而言，源法官說：" } }, { "doc_id": 36, "seg_id": 17, "translation": { "en": "… …", "zh-HK": "「166.PW9指『基業』並不是售賣傢俬給『快達營造』，他是提供連工包料的裝修傢俬工程。" } }, { "doc_id": 36, "seg_id": 18, "translation": { "en": "168.The sub-subcontractors were not business operators with sophisticated minds. It was not surprising that they did not know how letters of credit (L/C) issued by banks operated and did not understand the legal principles or requirements therein. In respect of D1’s allegation that he had obtained the consent of the sub-subcontractors to use letters of credit (L/C) issued by banks for payment of their purchase of materials, I am unable to accept. The sub-subcontractors had no idea how letters of credit (L/C) issued by banks operated, not to mention understanding that letters of credit (L/C) should only be used for purchase of goods. What they were concerned was whether they could collect the subcontracted work fees that they were entitled to be paid. As D1 did not enquire any of the sub-subcontractors about the acquisition price of their materials, how could it be alleged that the sub-subcontractors consented to D1 using letters of credit (L/C) issued by banks to pay for the price of the materials in the subcontracted work fees. Furthermore, the sub-subcontractors themselves surely had the right to purchase materials with lower prices. As they were the sub-subcontractors, unless the materials they provided were unmerchantable, the main contractor and the subcontractor should have no say in the acquisition price of the materials of the sub-subcontractors. How come “Bolton Construction Company Limited” paid for the materials separately.’", "zh-HK": "……" } }, { "doc_id": 36, "seg_id": 19, "translation": { "en": ".", "zh-HK": "168.各分判商不是頭腦精密的生意營運者。他們不懂銀行信用証(L/C)運作，不明其中法理或要求並不為奇。至於D1指他已獲取分判商同意用銀行信用証(L/C)支付他們購買物料的指稱，本席未能接納。分判商根本不懂銀行信用証(L/C)運作，更何來明白銀行信用証(L/C)只應用以買貨。他們關注的是他們能否收取應得的分判工程費用。Dl未有向他們任何一位分判商諮詢他們的物料來貨價，何以指分判商同意D1是以銀行信用証(L/C)支付分判工程費內的物料價格。再者，分判商當有權自行購買價格較便宜的物料。他們既然是分判商，除非他們提出的品料不合商用品質料(unmerchantable)，大判商與二判應無權過間分判商的物料來價，『快達營造』何以分開支付物料。」" } }, { "doc_id": 36, "seg_id": 20, "translation": { "en": "In so far as the 7th charge is concerned, although there is evidence in the case to show that 30% of the overall contract price was the price of the material, Judge Yuen, when dealing with the evidence of the sub-subcontractors, said:", "zh-HK": "雖然就第七項控罪而言，案件有證據顯示總合約價格的30%為物料價，但源法官在處理分判商的證供時說：" } }, { "doc_id": 36, "seg_id": 21, "translation": { "en": "“44.The sub-subcontractors had never classified the payments into different fee items like material fees, wages for workers or subcontracted profits. As far as the sub-subcontractors understood, the aforesaid payments were the subcontracted fees which they were entitled to be paid.”", "zh-HK": "「44.分判商從未有把該些繳款分類為物料費，工人工資或分判利潤的不同項目收費。以分判商的理解，上述繳費是他們應得的分判費用。」" } }, { "doc_id": 36, "seg_id": 22, "translation": { "en": "Besides, regarding the applicant’s allegation that 20% to 30% of the contract price referred to in the 9th charge was the price of the material, Judge Yuen said:", "zh-HK": "另外，就申請人指第九項控罪中指20% 至30%的合約價格為物料價一事，源法官說：" } }, { "doc_id": 36, "seg_id": 23, "translation": { "en": "“115.PW15 pointed out that since what he put forth to “Bolton Construction Company Limited” was subcontracted work inclusive of both labour and materials, there should not be a situation where labour and materials were separated. If it were insisted that he should estimate how much the cost of the material price should be within a subcontracted fee of HK$591,928.91, PW15 believed that materials should occupy 20% to 30% of the subcontracted fee.”", "zh-HK": "「115.PW15指出由於他向『快達營造』提出的是連工包料的分判工程，不應有工料分拆的情況。如硬要他估計HK$591,928.91的判費內應有多少是料價的成本，PW15相信物料應佔判費的20%至30%。」" } }, { "doc_id": 36, "seg_id": 24, "translation": { "en": "We agree with what Ms. Alice Chan, Senior Public Prosecutor for the respondent, has submitted, which is that the so-called protection of the bank exists in name only.", "zh-HK": "本庭同意代表答辯人的高級檢控官陳淑文所說銀行的所謂的保障是如同虛設。" } }, { "doc_id": 36, "seg_id": 25, "translation": { "en": "In so far as culpability is concerned, Judge Yuen adopted a starting point of 3 years and 6 months’ imprisonment for the applicant and the 2nd defendant; and a starting point of 2 years and 6 months’ imprisonment for the 3rd defendant. Obviously, Judge Yuen arrived at the respective starting points of each of the defendants after hearing the evidence and on the basis of the culpability of each defendant. The period over which the applicant committed these crimes was as long as 4 years and 9 months. He actively participated in these fraudulent activities and directly instructed his subordinates to make false representations in the letter of credit application forms. He even signed the relevant documents in confirmation. We do not think the culpability of the applicant is less than that of the other defendants. In any event, the illegal acts committed by the applicant would undermine the reputation of Hong Kong as an international financial centre.", "zh-HK": "關於罪責問題，源法官以三年六個月監禁作為申請人與第二被告人的量刑基準及兩年六個月監禁作為第三被告人的量刑基準。明顯地，源法官針對各被告人定出的量刑基準是在聆聽過証供後及基於各人的罪責而作出的。申請人所干犯的罪行為期四年九個月之久。他積極參予有關的詐騙活動及直接指示下屬在信用証申請表上作虛假陳述，他更在有關的文件上簽署作實。本庭不認為申請人的罪責是低於其他被告人。無論如何，申請所作出的違法行為是會令香港作為國際金融中心的名譽受損。" } }, { "doc_id": 36, "seg_id": 26, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 36, "seg_id": 27, "translation": { "en": "In our view, both the starting point of 3 ½ years adopted by Judge Yuen and the ultimate sentence imposed by her are appropriate. We therefore dismissed the application.", "zh-HK": "本庭認為源法官採用三年半監禁作為量刑基準及作出的最終刑期都是適當的裁決，故此本庭駁回申請。" } }, { "doc_id": 36, "seg_id": 28, "translation": { "en": "Alice Chan, Senior Public Prosecutor of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級檢控官陳淑文代表。" } }, { "doc_id": 36, "seg_id": 29, "translation": { "en": "Alex Ng, instructed by Henry Wan & Yeung, for the Applicant", "zh-HK": "申請人：由尹楊律師事務所轉聘吳政煌大律師代表。" } }, { "doc_id": 37, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the Reasons for Judgment of the Court):", "zh-HK": "高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 37, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 37, "seg_id": 3, "translation": { "en": "On 5 December 2012, the applicant (Zen Xiulan) came to Hong Kong on board Air Asia’s Flight AK1656 from Kuala Lumpur. Upon arrival, she only had with her hand baggage and no check-in ones.", "zh-HK": "2012年12月5日，申請人（曾秀蘭）乘坐亞洲航空AK1656航班從吉隆坡來港。抵港時，申請人沒有寄倉行李，只有手提行李。" } }, { "doc_id": 37, "seg_id": 4, "translation": { "en": "At 10.35 hours on the same day, the applicant was intercepted by Customs Officers along the Green Channel. At that time, she was carrying a purple backpack on her back, a medium handbag with LV print on her shoulder, a plastic bag and a small reusable fabric bag in her hands.", "zh-HK": "同日10時35分，申請人被關員在綠色通道截停。當時，申請人背着一個紫色背囊、孭住一個中型LV花紋手袋及手持一個膠袋和一個環保細布袋。" } }, { "doc_id": 37, "seg_id": 5, "translation": { "en": "The applicant underwent customs clearance inspection by Customs Officers in a Customs clearance cubicle. Customs Officers seized from the handbag with LV print carried by the applicant two plastic bags containing a total of 0.98 kg mixture containing 0.47 kg of heroin. The retail price of the heroin was approximately HK$880,000. The backpack, plastic bag and reusable fabric bag carried by the applicant contained her clothes and other personal belongings with no suspicious items.", "zh-HK": "申請人在海關清關室被關員作清關檢查。關員在申請人孭住的LV花紋手袋內檢獲兩個膠袋，合共載有0.98公斤混合劑，內含0.47公斤海洛英。該些海洛英的零售價約為88萬港元。申請人攜帶的背囊、膠袋和環保布袋載有申請人的衣物和其他個人用品，但沒有任何可疑物品。" } }, { "doc_id": 37, "seg_id": 6, "translation": { "en": "Due to the above incident, the applicant was charged with a single count of unlawful trafficking in a dangerous drug to which she pleaded not guilty and was tried before Deputy High Court Judge Joseph Yau (the trial judge) sitting with a jury.", "zh-HK": "上述事件導致申請人被控一項非法販運危險藥物罪。申請人否認控罪，並在高等法院暫委法官邱智立（原審法官）會同陪審團席前受審。" } }, { "doc_id": 37, "seg_id": 7, "translation": { "en": "On 21 February 2014, the jury reached a verdict of guilty by a majority of 6 to 1 against the applicant. On 5 March 2014, the trial judge sentenced the applicant to a term of 17 years and 6 months of imprisonment.", "zh-HK": "2014年2月21日，陪審團以六比一的大多數裁定申請人罪名成立，而在2014年3月5日，原審法官判申請人入獄17年6個月。" } }, { "doc_id": 37, "seg_id": 8, "translation": { "en": "The applicant, represented by Mr Chun-keung Leung of counsel and Mr Forest Fong of counsel, filed an application for leave to appeal against conviction. We dismissed the application after the hearing and here are our reasons.", "zh-HK": "申請人不服定罪，由梁振強及方林海兩位大律師代表提出申請，要求獲准就定罪上訴。經聆訊後，本庭駁回申請，以下是本庭的判案理由。" } }, { "doc_id": 37, "seg_id": 9, "translation": { "en": "Prosecution case & evidence", "zh-HK": "控方案情及證據" } }, { "doc_id": 37, "seg_id": 10, "translation": { "en": "Apart from the undisputed facts mentioned above, evidence from the prosecution showed that at the scene after being arrested and cautioned, the applicant maintained that the items in the LV bag did not belong to her and that she did not know that dangerous drugs were hidden in the LV bag. However, when being asked if the LV bag in question belonged to her, the applicant said, “I bought (it) yesterday.”", "zh-HK": "除了上述無爭議的案情外，控方的證據顯示申請人在現場被拘捕及在警誡下，一直都表示LV袋內的東西並不是她的，而她亦不知道LV袋內藏有毒品。但被問及涉案的LV袋是否屬於她時，申請人說：“我尋日買嘅”。" } }, { "doc_id": 37, "seg_id": 11, "translation": { "en": "After it had been confirmed that dangerous drugs were hidden in the LV bag, the applicant was cautioned again and she said, “I understand, but the handbag and the things inside it do not belong to me. I am helping my friend bring (them) back to someone in Guangzhou. I opened it this morning at Kuala Lumpur Airport and saw that there were only clothes inside. I therefore agreed to help him bring them back. I’m doing it for free.”", "zh-HK": "當LV袋內被證實藏有毒品後，申請人再被警誡時則說：“我明，不過個手袋同面嘅嘢唔係我嘅，我幫朋友帶返去廣州俾人。我今朝喺吉隆坡機場打開過，見到面得啲衫咋，咪應承幫佢帶返去囉，我無收錢。”" } }, { "doc_id": 37, "seg_id": 12, "translation": { "en": "The Customs Officer post-recorded what the applicant had said under caution, and the applicant also wrote a declaration to confirm that the content of the post-record was correct. The prosecution also produced the applicant’s record of interview as evidence.", "zh-HK": "關員有將申請人在警誡下的說話補錄，而申請人亦有寫下聲明，確認補錄的內容正確。控方亦有將申請人的會面記錄呈堂為證。" } }, { "doc_id": 37, "seg_id": 13, "translation": { "en": "Defence case and evidence", "zh-HK": "辯方的案情及證據" } }, { "doc_id": 37, "seg_id": 14, "translation": { "en": "The defence basically accepted the prosecution case and admitted that the heroin in question was hidden between the linings of the handbag with LV print carried by the applicant on her shoulder when she entered Hong Kong. However, the defence denied the prosecution’s allegation that the applicant knew that dangerous drugs were hidden inside the LV handbag carried by her and knowingly brought the dangerous drugs into Hong Kong. The defence accepted that the applicant had told the Customs Officer that “I bought (it) yesterday.” However, it came as a casual reply to what the applicant thought was a routine question from the Customs Officer. The defence case was that the applicant was cheated by a black friend called Ka Ka. Without knowing the truth, she followed the instruction of his second elder brother Joe and brought the LV bag in question to Guangzhou for passing it to a friend of Ka Ka.", "zh-HK": "辯方基本上同意控方的案情，亦承認涉案的海洛英是藏在申請人入境香港時孭住的LV花紋手袋的夾層內，但辯方否認控方所指是申請人明知其攜帶的LV手袋內藏有毒品，而將毒品帶入香港。辯方承認申請人有向關員說過LV袋是“我尋日買嘅”，但指申請人以為關員是循例問她，而她亦是隨口回應。辯方的立場是申請人受一名叫卡卡的黑人朋友所騙，在不知情下，根據其二哥Joe的指示，將涉案的LV袋帶往廣州，交給卡卡的一名朋友。" } }, { "doc_id": 37, "seg_id": 15, "translation": { "en": "The applicant indicated that she came to know Ka Ka in May 2011 via a social communication platform QQ on the internet. Ka Ka said that his brother would bring her to have fun at Malaysia. She therefore went to Malaysia on 1 December 2012 and then came to Hong Kong on 5 December 2012, from where she intended to take a coach back to Guangzhou via Foshan.", "zh-HK": "申請人表示她於2011年5月在互聯網通訊平台QQ上認識卡卡，而卡卡說他的哥哥會帶她到馬來西亞玩，因此她在2012年12月1日前往馬來西亞，直至2012年12月5日來港，並打算坐巴士經佛山返回廣州。" } }, { "doc_id": 37, "seg_id": 16, "translation": { "en": "The applicant stated that she came to know Ka Ka on Mother’s Day in 2011. Ka Ka told her that he was an African, but he also mentioned that he was a Cuban. He later clarified that his father was a Cuban while his mother was a Nigerian, a furniture manufacturer.", "zh-HK": "申請人指在2011年母親節認識卡卡，而卡卡有說過自己是非洲人，又說過自己是古巴人。其後，卡卡又澄清說父親是古巴人，而母親是尼日利亞人，從事傢俬生產。" } }, { "doc_id": 37, "seg_id": 17, "translation": { "en": "After the applicant had known Ka Ka, the two of them developed close relationship, dated frequently and also saw each other at Ka Ka’s residence. On 13 May 2011, Ka Ka expressed that he would like to invite the applicant to Malaysia for travelling and meeting his family members. However, being tied up by his business, he would not be able to travel with her. Ka Ka claimed that his two elder brothers were living in Malaysia. As a result, the applicant went to Malaysia in May 2011 for the first time.", "zh-HK": "認識卡卡後，雙方關係密切，經常約會，亦有在卡卡居所會面。2011年5月13日，卡卡表示想邀請申請人前往馬來西亞旅遊及會見他的家人，但因為生意關係，不能和她同行。卡卡聲稱有兩個哥哥在馬來西亞居住。結果申請人在2011年5月首次前往馬來西亞。" } }, { "doc_id": 37, "seg_id": 18, "translation": { "en": "The applicant indicated that Ka Ka had made the arrangement for her trip to Malaysia in May 2011 and she did not carry anything on the return journey. She said that Ka Ka had paid for the air tickets and even given her RMB200 for buying gifts for his elder brothers. She paid for the expenses of the trip. Upon arrival at Kuala Lumpur, Ka Ka’s elder brother did not pick her up at the airport. Instead, she was told to take a taxi to his residence. In Malaysia, Ka Ka’s elder brother was the one receiving her. There were five or six other men living there. The applicant stated that during her stay in Kuala Lumpur, Ka Ka’s elder brother only brought her to a church on the first day, saying that going to church was very good for one’s mind. For the rest of the stay, the applicant just watched television in the residence of Ka Ka’s elder brother. The applicant indicated that originally she wanted to develop a relationship with Ka Ka but ceased to do so because (she) felt that Ka Ka had another girlfriend. The two of them had stopped seeing each other since 2012.", "zh-HK": "申請人表示她在2011年5月前往馬來西亞是透過卡卡安排，而回程時她並沒有攜帶任何東西。她說機票費用由卡卡支付，而卡卡更將200元人民幣交了給她用作購買禮物送給他的哥哥，但旅費則由她自己負責。到達吉隆坡後，卡卡的哥哥沒有接機，只著申請人乘坐的士前往他的住所。在馬來西亞時，負責招待申請人的是卡卡的哥哥，而和他一起居住的有另外5至6名男住客。申請人指稱在吉隆坡期間，卡卡的哥哥只在第一天帶她去一所教堂，說教堂對心靈會好好，而其餘時間，申請人都是在卡卡哥哥的住所內看電視。申請人表示原希望和卡卡發展感情，但因覺得卡卡另有女朋友而作罷，而兩人自2012年起沒有見面。" } }, { "doc_id": 37, "seg_id": 19, "translation": { "en": "The applicant continued and said that she was dating a man surnamed Cheung from April to August 2012 but subsequently broke up after a row. In September 2012, Ka Ka approached her and invited her to go to Malaysia again for visiting his elder brothers. Ka Ka indicated that the applicant would be a suitable wife for him, and that the elder brother whom she had met in Kuala Lumpur also approved of her. Ka Ka would like the applicant to go to Kuala Lumpur again for visiting his second elder brother Joe and he indicated that Joe would show her around in Malaysia. At the same time, Ka Ka indicated that he was out of town and therefore could not accompany her. The applicant indicated that she accepted the proposed revisit to Malaysia because her business performance was poor and she was in a bad mood. The applicant alleged that a friend of Ka Ka at Guangzhou had arranged the air ticket to Malaysia which had been paid for by Ka Ka. She was responsible for the expenses along the trip and for food.", "zh-HK": "申請人續稱在2012年4月至8月期間和一張姓男子拍拖，但其後吵架後分手。2012年9月，卡卡找她並邀請她再到馬來西亞探望他的哥哥。卡卡表示申請人適合做他的妻子，而她在吉隆坡見過的大哥亦同意。卡卡希望申請人再前往吉隆坡探望他的二哥Joe，並表示Joe會帶她在馬來西亞遊玩。卡卡同時表示他在外地，故不能陪她。申請人表示她當時業績不佳、心情壞，故接受建議再前往馬來西亞。申請人指前往馬來西亞的機票由卡卡在廣州的一名朋友安排，卡卡亦負責支付機票，但旅費及食用則由她自己負責。" } }, { "doc_id": 37, "seg_id": 20, "translation": { "en": "The applicant alleged that having arrived at Malaysia on the 10 October 2012, again, (she) went to the residence of Ka Ka’s eldest brother and came to know Joe and two of his friends who were black (namely,) Sam and Michael. The applicant indicated that during that entire trip, (she) just stayed inside the house for watching television and having meals without going out at all. She did not visit any tourist attraction. On 13 October 2012, the applicant returned to Guangzhou via Guilin without carrying any items for anyone.", "zh-HK": "申請人指在2012年10月10日抵達馬來西亞後，同樣前往卡卡大哥的居所，並認識了Joe和他的兩名黑人朋友Sam和Michael。申請人表示這一次全程都只是在屋內看電視、吃飯，完全沒有外出，沒有到過任何旅遊景點。2012年10月13日，申請人經桂林返回廣州時，並沒有替人攜帶任何物品。" } }, { "doc_id": 37, "seg_id": 21, "translation": { "en": "The applicant continued to allege that in October 2012, she made up with Mr Cheung and planned to marry him at Christmas in that year. However, on 24 October 2012, Ka Ka contacted the applicant again via QQ and indicated that he wanted to marry the applicant. He would like her to go to Kuala Lumpur again to meet with his elder brothers. However, the applicant refused to do so. Between October and November 2012, via QQ, Ka Ka invited the applicant to visit Nigeria but the applicant hesitated. Ka Ka sweet-talked her and told her not to be scared. In the end, the applicant gave her passport to Ka Ka’s friend for getting a visa that would allow the applicant to go to Nigeria for visiting Ka Ka. Later, Ka Ka once again invited the applicant to go to Malaysia for meeting Joe and claimed that Joe would arrange for their wedding and show her around. Knowing that she would go to Malaysia via Hong Kong, a place where she had not visited, the applicant finally accepted Ka Ka’s proposal of going to Malaysia for meeting Joe first before proceeding to Nigeria. The applicant alleged that having arrived at Malaysia, she was instructed by Joe to go to the same residence. At that time, Joe was not there and she was received by Sam. The applicant went on to allege that in her presence, Michael had sex with a Vietnamese woman and even discarded a condom on the applicant’s belongings. The applicant indicated that she had telephoned Ka Ka to ask how come Joe was not there. Ka Ka said that Joe would return later.", "zh-HK": "申請人續稱在2012年10月和張姓男子復合，並打算和他在同年聖誕結婚。但在2012年10月24日，卡卡透過QQ再聯絡申請人，表示想和申請人結婚，並希望她能再前往吉隆坡和他的兄長見面，但申請人拒絕。2012年10月至11月期間，卡卡透過QQ邀請申請人前往尼日利亞，但申請人猶豫。卡卡哄着她，叫她不要害怕。結果，申請人將護照交了給卡卡的朋友，以辦理簽證讓申請人前往尼日利亞探望卡卡。其後，卡卡再邀請申請人前往馬來西亞和Joe見面，指Joe會安排他們的婚禮及帶她到處遊玩。申請人指知道會經香港前往馬來西亞，而她沒有來過香港，故最終接受卡卡的建議先前往馬來西亞見Joe，才再前往尼日利亞。申請人指抵達馬來西亞後，Joe指示她前往同一住宅。當時Joe不在，是由Sam接待她。申請人更指Michael在她在場時，和一越南女子性交後，更將一個安全套丟在申請人的物件上。申請人表示曾致電卡卡問為甚麼Joe不在，而卡卡說Joe會遲一些回來。" } }, { "doc_id": 37, "seg_id": 22, "translation": { "en": "The applicant alleged that Joe did not show up until 9 p.m. on 4 December 2012. The applicant therefore told Ka Ka that she was discontented about it and that she would never believe him again. However, at that time Ka Ka sweet-talked the applicant into helping Joe bring some clothes back to Guangzhou for a friend of Ka Ka.", "zh-HK": "申請人指Joe在2012年12月4日晚上9時才出現，因此申請人向卡卡表示不滿，及表示以後不會再信他。但卡卡同時哄申請人着她幫Joe將一些衣物帶回廣州給卡卡的一名朋友。" } }, { "doc_id": 37, "seg_id": 23, "translation": { "en": "At about 3 a.m. in the following morning, Joe woke the applicant up and asked her to pack for the return trip to China. Joe stuffed the applicant’s handbag and personal belongings into her backpack and the applicant also put some personal belongings into a reusable bag. Before leaving, the applicant saw Joe putting some clothing into the LV bag in question. Joe escorted the applicant to a taxi and handed the LV bag in question to the applicant on the way to the airport. Joe indicated that the LV bag was to be handed over to Ka Ka’s friend in Guangzhou.", "zh-HK": "翌日早上3時許，Joe弄醒申請人，着她收拾行李返回中國。Joe將申請人的手袋和個人物品塞進她的背囊，而申請人亦將一些個人物品放入一環保袋內。離開前，申請人看見Joe將一些衣物放入涉案的LV袋內。Joe送申請人坐的士，及在前往機場時將涉案LV袋交給了申請人。Joe表示LV袋是交給卡卡在廣州的朋友。" } }, { "doc_id": 37, "seg_id": 24, "translation": { "en": "The applicant indicated that she had inspected the LV bag at the airport and only items of clothing were found. She therefore put those items of clothing back into the bag. The applicant alleged that she had been told that items of clothing were very cheap in Malaysia, so she did not find the incident to be suspicious. The applicant emphasized that she did not receive any remuneration for carrying the LV bag for others. She admitted that the LV bag was particularly heavy but she thought that it was so because of the clothes. She also admitted that she had some suspicions, but it had never occurred to her that the LV bag would contain dangerous drugs. The applicant indicated that she had thought about putting the clothes in the LV bag into a plastic bag, so as to avoid carrying the LV bag. However, the idea was dropped because she was unable to communicate with Joe.", "zh-HK": "申請人表示在機場有檢視過LV袋，發現只有衫褲，故將衫褲放回袋內。申請人指有人告知她衫褲在馬來西亞十分便宜，故她對事件沒有懷疑。申請人強調並沒有因為替人攜帶LV袋而獲得酬勞。申請人承認感覺LV袋特別重，但認為是因為載有衣物造成。申請人亦承認她有點懷疑，但沒有想過LV袋內會載有毒品。申請人表示曾想過用膠袋裝載LV袋內的衣物，避免要攜帶LV袋，但因為未能和Joe溝通而作罷。" } }, { "doc_id": 37, "seg_id": 25, "translation": { "en": "The applicant admitted that she did not know the full names of Ka Ka and his friends. However, she had their phone (numbers) and that of Ka Ka’s brothers. The applicant insisted that she was innocent and had been set up. Moreover, she did not receive any remuneration in the incident. The applicant said that she felt regretful about the incident.", "zh-HK": "申請人承認不知道卡卡和其朋友的全名，但她有他們和卡卡哥哥的電話。申請人力稱她是無辜的，是被人陷害的，而事件中她亦沒有得到任何酬勞。申請人指自己對事件感到後悔。" } }, { "doc_id": 37, "seg_id": 26, "translation": { "en": "The applicant further alleged that she came to Hong Kong for the first time on 5 December 2012. As she did not know how to take the transport for returning to Guangzhou, she planned to telephone Ka Ka’s friend for assistance.", "zh-HK": "申請人更指2012年12月5日是她首次來香港，並不知道如何在香港坐車回廣洲，故打算打電話給卡卡的朋友求助。" } }, { "doc_id": 37, "seg_id": 27, "translation": { "en": "The passport of the applicant confirmed that she had left China for Malaysia from the 13th to the 17th of May in 2011 and from the 10th to the 13th of October in 2012. She entered Malaysia again on 1 December 2012. She travelled overseas to Dubai from 21st to 25th of July in 2011. She indicated that the travelling expenses of the Dubai trip were paid by the insurance company she was working for.", "zh-HK": "申請人的護照證實她曾在2011年5月13日至17日及2012年10月10日至13日離開中國前往馬來西亞，而在2012年12月1日她再入境馬來西亞。她另外一次外遊是在2011年7月21日至25日前往迪拜，申請人表示前往迪拜的旅遊費用是由工作的保險公司支付。" } }, { "doc_id": 37, "seg_id": 28, "translation": { "en": "When she was testifying for her own case, apart from referring to her record of interview for telling the background and giving an account of the incident, the applicant also gave further explanation about the incident.", "zh-HK": "作供自辯時，除了援引其會面記錄道出其背景及事件的經過外，申請人亦有對事件作出進一步的解釋。" } }, { "doc_id": 37, "seg_id": 29, "translation": { "en": "The applicant produced the QQ communication records between her and Ka Ka to the court. The applicant indicated that she had told Ka Ka that she had to bring him to meet her family members. Although Ka Ka said that he did not have the time, he, at the same time, expressed his wish of marrying the applicant in January 2012 and having a son together.", "zh-HK": "申請人有將她和卡卡在QQ的通訊記錄呈堂。申請人表示曾向卡卡說要帶他見她的家人。雖然卡卡說沒有時間，但同時表示希望和申請人在2012年1月結婚及生兒子。" } }, { "doc_id": 37, "seg_id": 30, "translation": { "en": "The applicant also produced other QQ communication records between her and Ka Ka to the court. Her case was that Ka Ka had cheated her by pretending that he would marry her, so that the applicant handed her passport to his friend for getting a visa. The applicant indicated that Ka Ka’s full name was Rubin Kaka.", "zh-HK": "申請人亦有將她和卡卡的其他QQ通訊記錄呈堂，她的立場是卡卡假意表示會和她結婚來欺騙她，導致申請人將護照交了給他的朋友辦簽證。申請人表示卡卡的名字是Rubin Kaka。" } }, { "doc_id": 37, "seg_id": 31, "translation": { "en": "The applicant admitted that she had indicated to the Customs Officer that the LV bag in question was hers and she did casually reply by saying, “Bought (it) yesterday” which was, however, not true.", "zh-HK": "申請人承認她有向關員表示涉案LV袋是她的，亦有隨口答是她“尋日買嘅”，但這並非實情。" } }, { "doc_id": 37, "seg_id": 32, "translation": { "en": "Later, she did explain to the Customs Officer that neither the LV bag nor the items inside the bag were hers and that she was carrying them for others. However, the Customs Officer responded, “What kind of people? Friends? Are they black, too?” The applicant replied in the affirmative, and the Customs Officer further asked her whether she had received money, and the applicant indicated that no money had been received.", "zh-HK": "其後，她有向關員解釋LV袋和袋內的東西都不是她的，是她幫人拿的，但關員則回應說：“啲咩嘢人呀？啲朋友呀？係咪又係黑人呀？”申請人說是，而關員再問申請人有否收錢，申請人表示沒有收錢。" } }, { "doc_id": 37, "seg_id": 33, "translation": { "en": "The applicant alleged that the Customs Officer put on record some words that she had not uttered. However, she did not ask the Customs Officer for amendment because she thought that those were the Customs Officer’s personal record and she did not need to give much weight.", "zh-HK": "申請人指關員有記錄過一些她沒有說過的話，但她沒有要關員修改，原因是她認為該些只是關員自己的記錄，故她無需重視。" } }, { "doc_id": 37, "seg_id": 34, "translation": { "en": "The applicant also gave an explanation about what she had said in the video-recorded interview. The applicant indicated that some of the contents in the record of interview were untrue and incorrect, which was caused by misunderstandings in the conversation with the Customs Officer. She emphasized that she knew that delivering dangerous drugs into China would lead to execution by a firing squad, and therefore she would never be a drugs mule for money or for getting married.", "zh-HK": "申請人亦有就她在錄影會面時的說法作出解釋。申請人表示會面記錄內容部分不真確，原因是和關員交談時有誤會。她強調知道運毒去中國會槍斃，因此，她不會為錢或為想嫁人而幫人運毒。" } }, { "doc_id": 37, "seg_id": 35, "translation": { "en": "The applicant summoned her second elder sister to testify in court on matters relating to applicant’s work, character and so on. The second elder sister of the applicant believed that the applicant had multiple characters and was fun loving, rebellious and stubborn. However, she was retarded and naïve when it came to romance. She trusted others easily and could not differentiate between the truth and a lie. She had low self-esteem and always let her guard down.", "zh-HK": "申請人有傳召她的二家姐為她作供，就申請人的工作、性格等事項向法庭表述。申請人的二家姐認為申請人有多重性格、貪玩、反叛和固執，但感情方面，則弱智天真、容易信人、不懂分真假、有自卑心和不提防別人。" } }, { "doc_id": 37, "seg_id": 36, "translation": { "en": "Directions given to the Jury by the Trial Judge", "zh-HK": "原審法官向陪審團的指引" } }, { "doc_id": 37, "seg_id": 37, "translation": { "en": "The trial judge did explain the point of laws and give a summing-up of the evidence presented by both parties to the jury. The prosecution’s evidence was largely undisputed by the defence. Nevertheless, the trial judge still gave a very detailed summing up of the evidence presented by both parties to the jury. The trial judge pointed out to the jury three issues in this case for their deliberation. Firstly, whether the LV bag carried by the defendant when she was intercepted by the Customs Officer did have hidden in it the dangerous drug alleged by the prosecution, namely the heroin set out in the offence. Secondly, whether the defendant knew that dangerous drugs were hidden inside the LV bag. Thirdly, whether the defendant unlawfully trafficked the dangerous drug in question.", "zh-HK": "原審法官就涉案的法律問題及控辯雙方的證據都有向陪審團解釋及覆述。辯方對控方的證據爭議不大，但原審法官仍有極為詳細向陪審團覆述雙方的證據。原審法官向陪審團指出他們要考慮涉案的三項爭議，即第一，被告人被海關截停的時候所攜帶的LV袋，是否藏有控方所指的毒品，即控罪所列出的海洛英；第二，被告人是否知道LV袋裡面藏有毒品；及第三，被告人是否有非法販運涉案毒品。" } }, { "doc_id": 37, "seg_id": 38, "translation": { "en": "The trail judge pointed out clearly at the beginning of the directions to the jury:", "zh-HK": "原審法官在引導陪審員時即開宗明義指出：" } }, { "doc_id": 37, "seg_id": 39, "translation": { "en": "“…By now, you must have known the prosecution’s allegation against the defendant Miss Zen Xiulan. To put it in very simple terms, (the allegation) is that at about 10:15 a.m. on 5 December 2012, the defendant arrived at Hong Kong International Airport on board a plane from Kuala Lumpur, Malaysia. Having intercepted and checked the defendant, Customs Officers discovered that inside the linings of a handbag with LV pattern carried by the defendant at that time, two packets of heroin hydrochloride, or what we commonly refer to as “white powder”, were hidden. In this case, I’ll simply refer to it as heroin and that handbag with LV pattern, I’ll simply refer to it as the “LV bag”. The prosecution’s allegation is that the defendant, knowing that dangerous drugs were hidden inside the LV bag, imported the dangerous drugs into Hong Kong, brought them into Hong Kong.", "zh-HK": "“… 到而家大家一定知道控方對被告人曾秀蘭小姐所作出嘅指控。好簡單嚟講，就係被告人喺2012年12月5日大約早上10點15分，喺馬來西亞吉隆坡坐飛機嚟到香港國際機場。海關人員截查被告人之後，發覺被告人當時所孭住一個LV花紋手袋嘅夾層裡面，藏有兩包海洛英鹽酸鹽，即係我哋俗稱嘅「白粉」。喺呢件案件裡面，我就簡單叫佢做海洛英，同埋個LV花紋手袋，我亦簡單叫佢做「LV袋」。控方嘅指控就話被告人係明知道LV袋裡面藏有毒品，就將啲毒品進口香港，帶入嚟香港。" } }, { "doc_id": 37, "seg_id": 40, "translation": { "en": "The defence case is that she came to know a black man called Ka Ka via QQ who told her to go to Malaysia for fun and for visiting Ka Ka’s elder brother and talking with him about getting married to Ka Ka. The air ticket was arranged by a friend of Ka Ka in Guangzhou and paid for by Ka Ka. On the way back, Ka Ka’s second elder brother Joe gave this LV bag to her and asked her to hand it over to Ka Ka’s friend in Guangzhou, namely the one who had arranged her air ticket to Malaysia. The defendant said that after opening the LV bag in the airport in Kuala Lumpur, she only saw clothes inside the bag. She checked the clothes and did not find anything unusual although she felt that the LV bag was a bit heavy. However, she did not know that dangerous drugs were hidden inside the LV bag and she brought the LV bag to Hong Kong.”", "zh-HK": "被告人嘅案情，就係話佢喺QQ上面認識一個叫卡卡嘅黑人，叫佢去馬來西亞玩同埋探卡卡嘅哥哥，並且傾佢同卡卡嘅婚事，而機票係由卡卡嘅一個廣州朋友安排，錢係由卡卡畀。回程嘅時候，卡卡嘅二哥叫做Joe，將呢個LV袋畀佢，叫佢係交畀同佢安排機票去馬來西亞嗰個卡卡廣州嘅朋友。被告人話佢喺吉隆坡機場打開過LV袋，見到裡面係衣服，佢檢查過啲衣服冇乜特別嘢，雖然佢覺得LV袋有啲重，但係佢並唔知道LV袋裡面藏有毒品，而將LV袋係帶咗嚟香港。”" } }, { "doc_id": 37, "seg_id": 41, "translation": { "en": "The trial judge pointed out to the jury that there was no direct evidence proving that the applicant knew there were dangerous drugs inside the LV bag or that she knew the dangerous drug inside the LV bag was heroin. The prosecution only relied on the inference which could be drawn from the circumstantial evidence to prove the applicant’s knowledge of hidden dangerous drug inside the LV bag.", "zh-HK": "原審法官向陪審團指出沒有直接證據證明申請人知道LV袋內藏有毒品或知道LV袋內的毒品是海洛英，而控方只是依賴環境證據能作出的推論來證明申請人知道LV袋內藏有毒品。" } }, { "doc_id": 37, "seg_id": 42, "translation": { "en": "On the issue of inference, the trial judge gave the jury the following directions:", "zh-HK": "就有關推論的議題，原審法官向陪審團作出以下指引：" } }, { "doc_id": 37, "seg_id": 43, "translation": { "en": "“ ‘To draw an inference’ means making consideration and assessment on the basis of some confirmed facts to see whether another set of facts can be inferred. However, when you are drawing an inference, you must ensure that the inference is drawn from some facts that have already been proven, or facts that you are sure about having assessed the evidence. In other words, inference can be drawn from facts admitted by the parties, or from facts that you are satisfied after careful consideration and analysis. You must confirm that the inference is the only reasonable inference that can be drawn from these proven facts.", "zh-HK": "“「推論」嘅意思就係話我哋要喺一啲肯定咗嘅事實基礎上面去考慮、衡量，睇下能唔能夠去推論出另一個事實。但係當你哋作出推論嘅時候，你哋必須確保呢個推論嘅基礎係一啲已經得到確立嘅事實，或者係經過咗你哋衡量證供之後所肯定嘅事實。換言之，推論嘅基礎係可以基於雙方嘅承認事實，亦都可以基於你哋經過周詳嘅考慮同埋分析之後所信納嘅事實。你哋必須確認推論係由呢啲已確立嘅事實裡面，可以作出嘅唯一合理推論。" } }, { "doc_id": 37, "seg_id": 44, "translation": { "en": "In this case, if you are going to make any deduction or draw any inference against the defendant, you may only do so if you are sure that it is the only reasonable inference. So, if on the basis of the relevant facts, there is an inference to be drawn against the defendant as well as one in his favour, or there are more than one inference, then you must not draw the adverse inference, because it is not the only reasonable inference.", "zh-HK": "喺呢件案件裡面，如果你要對被告人作出任何不利嘅推斷、推論，你一定要確保呢個係唯一合理嘅推論先至可以咁做，即係話如果有關嘅事實基礎可以同時對被告人作出有利同埋不利嘅推論，或者作出多過一個推論嘅話，你哋係唔可以對被告人作出一個不利嘅推論，因為呢一個並唔係唯一嘅合理推論。" } }, { "doc_id": 37, "seg_id": 45, "translation": { "en": "You have to consider all the evidence in this case to see if the evidence can help you determine whether the defendant knew full well that there was a dangerous drug in the LV bag or she had no idea at all. You have to consider this: can you or can you not draw the only reasonable inference without any reasonable doubt that the defendant knew that dangerous drugs were hidden in the LV bag. The prosecution case is that all the evidence in this case enables you to draw the only reasonable inference that the defendant did know that dangerous drugs were hidden inside the LV bag. This is the concept of ‘inference’ that I have just explained to you. It means that you have to consider all the evidence in this case in order to decide whether or not you can draw the only reasonable inference that the defendant knew that dangerous drugs were hidden inside the LV bag. Here I am not going to repeat the meaning of the legal principle of ‘inference’, as it has already been explained earlier. ”", "zh-HK": "大家要考慮案中所有嘅證據，嚟睇下呢啲證據能唔能夠幫助你哋作出裁決，到底被告人對於LV袋裡面藏有毒品係心知肚明，抑或毫不知情。大家要考慮嘅就係你哋可唔可以喺毫無合理疑點之下作出唯一嘅合理推論，就係被告人知道LV袋裡面係藏有毒品。控方嘅講法就話呢件案件裡面所有證據可以令你哋作出一個唯一合理嘅推論，就係被告人對於LV袋裡面藏有毒品係知情嘅，呢個就係講番我正話同大家講嘅「推論」呢個概念。即係話大家要考慮晒所有案中嘅證據嚟決定你哋係咪可以作出一個唯一合理推論，就係被告人知道LV袋裡面係藏有毒品，喺呢度我唔再覆述「推論」呢個法律原則嘅意思，因為較早前已經解釋咗。”" } }, { "doc_id": 37, "seg_id": 46, "translation": { "en": "The trial judge used several examples to explain the meaning of an inference. The trial judge also emphasized several times that when making an inference against the applicant, that inference must be the only reasonable inference.", "zh-HK": "原審法官有給予陪審團多個例子解釋推論的意思，而原審法官多次強調他們作出對申請人不利的推論時，該推論必須是唯一合理的推論。" } }, { "doc_id": 37, "seg_id": 47, "translation": { "en": "The trial judge pointed out to the jury that both parties had agreed that the heroin in question was hidden inside the LV bag and the applicant had also admitted to having brought the LV bag from Kuala Lumpur to Hong Kong by plane. However, the prosecution still had to prove that the applicant knew that dangerous drugs were hidden in the LV bag. The trial judge emphasized to the jury that they had to consider whether they could draw the only reasonable inference without any reasonable doubt that the applicant knew that dangerous drugs were hidden inside the LV bag. They could not convict the applicant unless they were sure that the applicant knew that dangerous drugs were hidden inside the LV bag and knowingly brought the dangerous drug from Kuala Lumpur to Hong Kong.", "zh-HK": "原審法官向陪審團指出雙方同意LV袋內藏有涉案的海洛英，而申請人亦承認有攜帶該LV袋離開吉隆坡，乘坐飛機到香港，但控方仍必須證明申請人知道該LV袋內藏有毒品。原審法官向陪審團強調他們要考慮的就是他們可否在毫無合理疑點下作出唯一合理推論，即申請人知道LV袋內藏有毒品，如他們肯定申請人知道LV袋內藏有毒品，而她是在知情下將毒品由吉隆坡帶來香港，他們才能將申請人定罪。" } }, { "doc_id": 37, "seg_id": 48, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 37, "seg_id": 49, "translation": { "en": "Mr Chun Keung Leung and Mr Forest Fong, counsel for the applicant contend that the trial judge has failed to point out to the jury the evidence from which inference can be drawn that the applicant had “knowledge”, and has failed to properly point out to the jury if the prosecution evidence could form the basis on which the only reasonable inference of “knowledge” could be drawn. Mr Leung asserts that although the trial judge has told the jury that they had to consider all the evidence in this case, he has failed to point out which evidence may or may not be used against the applicant and for drawing an adverse inference against her. Mr Leung’s stance is that the judge has erred in handling it, rendering the conviction unsafe and unsatisfactory. He cites, as support, HKSAR v Li Yan Hong (CACC114/2012).", "zh-HK": "代表申請人的梁振強及方林海大律師指原審法官沒有向陪審團指出可依賴作為推論申請人“知情”的證據，亦沒有恰當地向陪審團指出控方就本案證據可否達致唯一“知情”的合理推論的基礎。梁大律師力稱雖然原審法官有向陪審團指出他們要考慮案中所有證據，但卻沒有向陪審團表明那一些證據可以，或不可以作為針對申請人的證據及作出對她不利的推論。梁大律師的立場是原審法官的處理方法不正確，影響有關定罪的穩妥性。他援引HKSAR v Li Yan Hong (CACC114/2012) 案支持他的立場。" } }, { "doc_id": 37, "seg_id": 50, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 37, "seg_id": 51, "translation": { "en": "In the present case, majority of objective facts are not disputed. The undisputed evidence shows that on 5 December 2012, the applicant flew to Hong Kong from Kuala Lumpur carrying a LV bag with the heroin in question hidden inside.", "zh-HK": "在本案，雙方就客觀事實的爭議不大。無爭議的證據顯示申請人在2012年12月5日乘坐班機由吉隆坡來港，而她攜帶的LV袋內藏有涉案的海洛英。" } }, { "doc_id": 37, "seg_id": 52, "translation": { "en": "As pointed out correctly by the trial judge to the jury, the only issue before them was whether the applicant was aware that the dangerous drug in question was hidden inside the LV bag when she brought the LV bag into Hong Kong.", "zh-HK": "誠如原審法官正確地向陪審團指出，他們唯一要考慮的議題是申請人攜帶LV袋入境香港時，她是否知道該LV袋內藏有涉案的毒品。" } }, { "doc_id": 37, "seg_id": 53, "translation": { "en": "When considering the issue mentioned above, the jury should of course consider all of the evidence in the case. This is the directions given to them by the trial judge who has also summed up the case and all of the evidence presented by both parties to the jury. The trial judge emphasized to the jury that:", "zh-HK": "在考慮上述議題時，陪審團當然要將案件的全部證據都考慮在內。這亦是原審法官向他們作出的指引。原審法官亦有向陪審團覆述案件，及控辯雙方的全部證供。原審法官向陪審團強調：" } }, { "doc_id": 37, "seg_id": 54, "translation": { "en": "“You have to consider all the evidence in this case to see if the evidence can help you determine whether the defendant knew full well that there were dangerous drugs in the LV bag or she had no idea at all.", "zh-HK": "“大家要考慮案中所有嘅證據，嚟睇下呢啲證據能唔能夠幫助你哋作出裁決，到底被告人對於LV袋裡面藏有毒品係心知肚明，抑或毫不知情。" } }, { "doc_id": 37, "seg_id": 55, "translation": { "en": "All in all, in the present case, if you are sure that the defendant was aware that dangerous drugs were hidden inside the LV bag, or was even aware that the dangerous drug was heroin, and that under such circumstances, the defendant knowingly brought the dangerous drug to Hong Kong from Kuala Lumpur, then the defendant was unlawfully trafficking in the dangerous drug and you have to find her guilty. However, if you cannot be sure if the defendant was aware that dangerous drugs were hidden inside the LV bag, then you have to find the defendant not guilty.", "zh-HK": "總括嚟講，喺呢件案件裡面，如果你哋肯定被告人知道LV袋裡面係藏有毒品，或者甚至知道嗰啲毒品係海洛英，同埋被告人喺呢個情況之下，喺知情嘅情況之下，將呢啲毒品由吉隆坡帶嚟香港嘅話，被告人就係非法販運呢啲毒品，你哋就要裁定佢罪名成立，但係如果你哋唔能夠肯定被告人係咪知道LV袋裡面藏有毒品嘅話，你哋就要裁定被告人罪名不成立。" } }, { "doc_id": 37, "seg_id": 56, "translation": { "en": "However, as I’ve mentioned just now, the prosecution case is that all the evidence in the case can enable you to draw the only reasonable inference that the defendant has knowingly brought the dangerous drug to Hong Kong from Kuala Lumpur. Members of the jury, you, therefore, have to consider all of the evidence in the present case in order to decide if you are able to draw an only reasonable inference as such. You remember that the defendant has all along maintained that she was not aware that dangerous drugs were hidden in the LV bag, let alone knowing that the dangerous drug was heroin. Naturally, the defendant also denies that she was in possession of the dangerous drug, or has knowingly brought the dangerous drug into Hong Kong. Please remember, if you believe in the words of the defendant, or if you think that there may be some truth in her words, you must find her not guilty. Even if you do not believe or accept the words of the defendant, you must not find her guilty because of that. You still have to consider all the evidence in the case to decide whether the prosecution is able to prove beyond reasonable doubt that the defendant has committed the offence as charged.”", "zh-HK": "正如我剛才所講，控方嘅講法就話呢件案件裡面嘅所有證據係能夠令到你哋各位作出一個唯一合理嘅推論，就係被告人喺知情嘅情況之下，將呢啲毒品由吉隆坡運嚟香港。各位陪審團，因此你哋要考慮案中嘅所有證據嚟決定你哋可唔可以作出一個咁嘅唯一合理嘅推論。你哋記得，被告人一直都話佢係唔知道LV袋裡面係藏有毒品，佢更加唔知道嗰啲毒品係海洛英，自然地被告人亦都係否認佢管有呢啲毒品，或者將呢啲毒品知情地運入香港。請大家記住，如果你哋相信被告人所講嘅嘢，或者認為被告人所講嘅嘢有可能係真嘅，你哋都要裁定佢罪名不成立。就算你哋唔相信、唔接受被告人所講嘅嘢，你哋亦都唔可以因為呢個原因裁定佢罪名成立，你哋仍然要考慮案中嘅所有證據嚟決定控方係咪能夠喺毫無合理疑點之下，證明被告人觸犯咗佢所面對嘅控罪。”" } }, { "doc_id": 37, "seg_id": 57, "translation": { "en": "We disagree with Mr Leung’s allegation that the trial judge has failed to point out to the jury the relevant evidence from which the applicant’s “knowledge” could be inferred. The trial judge did sum up all the evidence from both parties in detail to the jury. The only matter before the jury was whether they could draw the inference that the applicant had “the knowledge” on the basis of the evidence they had accepted. In the present case, the trial judge needed not and should not point out to the jury which evidence they could or could not rely on when drawing the inference. The jury must have been able to tell which type of evidence was for and which type was against the applicant. It takes nothing more than common sense. A trial judge should give the jury a free hand for them to reach a verdict based on their common sense, social experience and observations. Had a trial judge explicitly indicated to a jury that they were only allowed to draw an inference from or act upon certain evidence, the trial judge would have deprived the jury of the function that they should perform.", "zh-HK": "本庭不同意梁大律師指原審法官沒有向陪審團指出能推論申請人“知情”的有關證據。原審法官有將控辯雙方的全部證據詳細向陪審團覆述，陪審團唯一要考慮的是根據他們接受的證據，他們能否作出申請人是“知情”的推論。在本案，原審法官無需要亦不應該向陪審團指出他們作出推論裁決時，能依賴那一些證據而不能依賴那一些其他證據。陪審團必然能辨別那一類證據是對申請人有利，那一類證據對申請人不利。這只是普通常識，而原審法官須放手由陪審團根據他們的常識、社會經驗和對事物的觀察，作出裁決。假若原審法官向陪審團表明他們只能根據某些證據作出推論或行事，原審法官是剝奪了陪審團應有的職權。" } }, { "doc_id": 37, "seg_id": 58, "translation": { "en": "If during the trial, some evidence that should not be considered by jury had been revealed to them, for example, hearsay evidence, evidence whose prejudicial effect has outweighed its probative value, or some irrelevant or unconfirmed evidence, the trial judge should tell the jury that they must not use that evidence as the basis for drawing any inference. If the prosecution has emphasized that certain evidence is sufficient to lead to an inference against the defendant, whereas in fact it is not, the trial judge should also remind the jury so that they would not draw any improper inference against the defendant.", "zh-HK": "如在審訊過程，有向陪審團披露了某些他們不應該考慮的證據，例如傳聞證據、具損害性遠超其舉證效力的證據，或一些無關或未獲證實的證據時，主審法官理應向陪審團指出他們不能將該些證據作為推論的基礎。如控方強調某些證據足以導致對被告人不利的推論，而事實上該些證據根本不能作出對被告人任何不利的推論時，原審法官亦應提醒陪審團，避免他們不恰當地作出對被告人不利的推論。" } }, { "doc_id": 37, "seg_id": 59, "translation": { "en": "In Li Yan Hong cited by Mr Leung, the prosecution emphasized that the defendant had torn away the tag on the suitcase, so as to allege that the defendant was trying to distance herself from the suitcase in question, making use of it to support the prosecution case against the defendant. In fact, the defendant had not concealed her connection with the suitcase in question, and she even told the Customs Officer explicitly that the suitcase in question was hers. However, the trial judge not only failed to make it clear to the jury that they should not act upon the prosecution’s allegation, but even directed the jury that they might use such evidence to draw the inference that the applicant was aware of the hidden dangerous drugs in the luggage.", "zh-HK": "在梁大律師援引的Li Yan Hong案，控方強調被告人有將行李上的行李牌撕掉，並因而指被告人試圖表明她和涉案的行李無關，並以此來支持控方對被告人的指控。事實上，被告人不但沒有隱藏她和涉案行李的關係，更有向關員表明涉案行李是她的。但原審法官不但沒有向陪審團表明他們不應根據控方的說法行事，更向陪審團指他們可以根據該些證據來推論申請人知悉涉案行李內藏有毒品。" } }, { "doc_id": 37, "seg_id": 60, "translation": { "en": "Under the above circumstances, the Court of Appeal held that the conviction was unsafe and unsatisfactory. However, in the present case, there is no information showing that the trial judge has asked or allowed the jury to consider any evidence that they should not take into account. Neither has Mr Leung so alleged. The decision in Li Yan Hong cited by Mr Leung does not support his stance.", "zh-HK": "在上述情況下，上訴法庭認為有關的定罪裁決是不穩妥的。但在本案沒有任何資料顯示，而梁大律師亦沒有指稱原審法官有邀請或容許陪審團考慮一些他們不應該考慮的證據。梁大律師援引Li Yan Hong案的判決不支持他的立場。" } }, { "doc_id": 37, "seg_id": 61, "translation": { "en": "In a criminal case, a trial judge, when directing the jury on the issue of “inference”, does not have to adopt any fixed expression or form. A trial judge only has to bring out three main points:", "zh-HK": "在刑事案件，就“推論”這議題，主審法官向陪審團作出指引時，無需要採納固定的用詞或模式，主審法官只需要帶出主要三點：" } }, { "doc_id": 37, "seg_id": 62, "translation": { "en": "the jury can only draw any inference based on facts. Facts include agreed facts or proven facts accepted by the jury. A jury can only act upon facts, not guesses or speculations;", "zh-HK": "陪審團只能根據事實作出推論，事實包括雙方同意的或是陪審團接納已獲證明的事實，陪審團只能根據事實，而不能依賴任何猜測或估計行事；" } }, { "doc_id": 37, "seg_id": 63, "translation": { "en": "if any adverse or inculpatory inference is to be drawn against a defendant, such inference must not only be logical and in line with common sense, it must also be the only reasonable and irresistible inference; and", "zh-HK": "如要作出對被告人任何不利或有罪的推論，該些對被告人不利或有罪的推論，不但要合符邏輯、合符常理，更必須是唯一合理和不可抗拒的推論；及" } }, { "doc_id": 37, "seg_id": 64, "translation": { "en": "Based on the relevant facts, if both favourable and adverse inferences can be drawn, the jury has to draw the inference for but not against the defendant. The reason is that under such circumstances, the adverse inference against the defendant is not the only reasonable inference.", "zh-HK": "如根據有關事實，同時可以作出對被告人有利或不利的推論，陪審團要作出對被告人有利而非不利的推論，原因是在上述情況下，對被告人不利的推論並非是唯一合理的推論。" } }, { "doc_id": 37, "seg_id": 65, "translation": { "en": "The trial judge, when directing the jury, did explicitly explain the above principle to them. The trial judge has given sufficient, fair and reasonable directions to the jury. The issues in question are all issues of facts and should be left to the jury to determine.", "zh-HK": "原審法官指引陪審團時，有將上述原則明確地向他們闡述。原審法官向陪審團的指引是足夠的，亦是公平合理的。涉案的議題全是事實議題，理應交由陪審團裁決。" } }, { "doc_id": 37, "seg_id": 66, "translation": { "en": "We have already considered the details of the case and the arguments from both parties. The jury definitely has sufficient basis to be sure that the applicant was aware that dangerous drugs were hidden inside the LV bag that she brought into the territories. The applicant has been convicted of unlawful trafficking in a dangerous drug, which we do not find to be unsafe or unsatisfactory. We therefore dismiss the applicant’s application of leave to appeal against conviction.", "zh-HK": "本庭已考慮過案件的詳情及雙方的論據。陪審團絕對有足夠基礎認定申請人對其攜帶入境的LV袋內藏有毒品一事知情。對申請人被裁定非法販運危險藥物罪罪名成立，本庭不覺有任何不穩妥之處。因此，本庭駁回申請人就定罪提出的上訴許可申請。" } }, { "doc_id": 37, "seg_id": 67, "translation": { "en": "Raymond Cheng, Senior Public Prosecutor, for the respondent", "zh-HK": "答辯人：由律政司高級檢控官鄭凱聰代表。" } }, { "doc_id": 37, "seg_id": 68, "translation": { "en": "Chun-Keung Leung and Forest Leung, counsel assigned by Bar Free Legal Service Scheme, for the applicant", "zh-HK": "申請人：由香港大律師公會法律義助服務計劃委派大律師梁振強及大律師方林海代表。" } }, { "doc_id": 38, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the Judgment of the Court):", "zh-HK": "上訴法庭副庭長楊振權頒發上訴法庭判案書：" } }, { "doc_id": 38, "seg_id": 2, "translation": { "en": "At about 1 p.m. on 7 February 2010, the applicant (Lam Chi Fat) was driving a goods vehicle of registration number DT 2398 (“the goods vehicle”) travelling towards Mongkok along the southbound carriageway of Tai Po Road. It was raining heavily at that time and the road surface was wet and slippery.", "zh-HK": "2010年2月7日下午約1時，申請人(林志發)駕駛DT2398號貨車(“貨車”)沿大埔道南行線往旺角方向行駛。當時下大雨，路面濕滑。" } }, { "doc_id": 38, "seg_id": 3, "translation": { "en": "When the goods vehicle reached the intersection of Tai Po Road and Shek Kip Mei Street, it suddenly went out of control and crashed into the metal railings by the pavement on the left before the intersection. Then it mounted the pavement after the intersection and only came to a halt after hitting the canopies and a lamppost outside the shops at Nos. 152 and 154 Tai Po Road.", "zh-HK": "當貨車駛到大埔道與石硤尾街交界時，突然失控，先撞向路口交界前的左面行人路邊的鐵圍欄，再衝上路口交界後的行人路及撞向大埔道152號和154號店舖外的簷蓬及電燈柱後才停下。" } }, { "doc_id": 38, "seg_id": 4, "translation": { "en": "As a result of the accident, the applicant’s wife (Ms Kwok), who was on board the goods vehicle at the time, was thrown out of the vehicle and died three days afterwards. Seven other passers-by also suffered minor injuries, while severe damage was caused to the objects outside the shops at Nos. 152 and 154.", "zh-HK": "意外導致貨車上的申請人妻子(郭女士)被拋出車外，並在三天後死亡。意外亦有導致另外七名途人受輕傷及152及154號店舖外的物件嚴重損毀。" } }, { "doc_id": 38, "seg_id": 5, "translation": { "en": "Eventually the applicant was charged with dangerous driving causing death. He denied the charge and was tried before Judge Stanley Chan in the District Court.", "zh-HK": "事後申請人被控危險駕駛引致他人死亡罪，申請人否認控罪並在區域法院法官陳廣池席前受審。" } }, { "doc_id": 38, "seg_id": 6, "translation": { "en": "On 1 February 2011, Judge Chan convicted the applicant of the charge and sentenced him to a term of imprisonment of 18 months. He was also disqualified from driving for 4 years.", "zh-HK": "2011年2月1日，陳法官裁定申請人罪名成立並判他入獄1年6個月，另停牌4年。" } }, { "doc_id": 38, "seg_id": 7, "translation": { "en": "Feeling aggrieved, the applicant seeks leave to appeal against his conviction.", "zh-HK": "申請人不服定罪，故提出上訴許可申請，要求獲准就定罪上訴。" } }, { "doc_id": 38, "seg_id": 8, "translation": { "en": "The Prosecution Allegations and Evidence", "zh-HK": "控方指控及證據" } }, { "doc_id": 38, "seg_id": 9, "translation": { "en": "There was no dispute about most of the background facts and the course of the accident, which were put before the court by way of admitted facts.", "zh-HK": "事件的背景及意外的經過，大部分沒有爭議，並以同意事實向法庭呈上。" } }, { "doc_id": 38, "seg_id": 10, "translation": { "en": "The speed limit on the stretch of road in question was 50 km/hr. At the time of the accident, the traffic lights at the scene were functioning properly, while the road surface was wet and slippery because of the rain.", "zh-HK": "有關路段的行車限速為每小時50公里。案發時，現場的交通指示燈運作正常，路面則因下雨而濕滑。" } }, { "doc_id": 38, "seg_id": 11, "translation": { "en": "After the accident, the alcohol test on the applicant showed that he had not consumed any alcohol. The vehicle examination also confirmed that there had been no mechanical failure in the vehicle. No skid marks were found on the road.", "zh-HK": "案發後，申請人的酒精測試顯示他沒有飲酒，驗車證實貨車沒有任何機件故障，而路面亦沒有剎車痕跡。" } }, { "doc_id": 38, "seg_id": 12, "translation": { "en": "The owner of the goods vehicle indicated that the vehicle had been repaired one month before the accident and the foot brake had also been checked. In addition, the goods vehicle had been examined before the vehicle licence was renewed about a year ago.", "zh-HK": "貨車車主表示意外前一個月，貨車進行過維修，亦有檢查腳掣，而約一年前貨車亦曾在續牌前驗車。" } }, { "doc_id": 38, "seg_id": 13, "translation": { "en": "Numerous passers-by testified that when the goods vehicle drove past the intersection at high speed, it went out of control and mounted the pavement. However, they did not hear any “sounding of horns” or braking sounds. There was evidence that the goods vehicle was travelling at a speed of about 40 to 50 km/hr.", "zh-HK": "多名作供的途人都指貨車快速駛過路口時，失控撞上行人路，但他們都聽不到“響銨”或剎車聲。有證人指貨車車速約為每小時40至50公里。" } }, { "doc_id": 38, "seg_id": 14, "translation": { "en": "When the police was carrying out an investigation at the scene, the applicant claimed that the brake of the goods vehicle had not responded or had been defective. The vehicle examination report, however, showed that the vehicle was on the whole satisfactorily maintained. Its foot brake and parking braking system were functioning properly and there was no leakage or overheating at all.", "zh-HK": "警員在現場調查時，申請人表示貨車的剎車掣沒有反應或壞了，但驗車報告顯示貨車整體保養滿意，腳掣制動和泊車掣制動系統都操作正常，沒有任何洩漏或過熱的情況。" } }, { "doc_id": 38, "seg_id": 15, "translation": { "en": "The prosecution case was that the way the applicant drove fell far below what would be expected of a competent and careful driver, and that it would be obvious to a competent and careful driver that driving in that way would be dangerous.", "zh-HK": "控方的立場是申請人的駕駛方式遠遜於一名合格和謹慎的駕駛者所預期，而合格和謹慎的駕駛者都會認為申請人的駕駛方式顯而易見是屬危險的。" } }, { "doc_id": 38, "seg_id": 16, "translation": { "en": "The Defence", "zh-HK": "答辯理由" } }, { "doc_id": 38, "seg_id": 17, "translation": { "en": "The applicant did not give evidence in his own defence, nor did he call any witnesses to explain the cause of the accident.", "zh-HK": "申請人沒有作供自辯，亦沒有傳召任何證人解釋意外原因。" } }, { "doc_id": 38, "seg_id": 18, "translation": { "en": "Findings by the trial judge", "zh-HK": "原審法官的裁決" } }, { "doc_id": 38, "seg_id": 19, "translation": { "en": "The trial judge found that there was no evidence to suggest that the applicant was speeding, and the absence of any skid marks or grease stains on the road might have been caused by the accumulation of water, the slipperiness of the road or other reasons.", "zh-HK": "原審法官指出沒有證據顯示申請人有超速，而路面上沒有剎車痕或油漬亦可能是積水，路滑或其他原因造成的。" } }, { "doc_id": 38, "seg_id": 20, "translation": { "en": "The learned judge stressed that the immense force of the impact caused by the accident was borne out by the damage to the objects on the road and Ms Kwok’s being thrown out of the vehicle. He stressed that the applicant was driving in the slow lane, but given the rainy weather and the slippery road condition, a speed of 40 to 50 km/hr could lead to serious consequences.", "zh-HK": "原審法官強調意外對路上物件造成的損毀及令郭女士被拋出車外等都顯示意外涉及的衝撞力十分巨大。原審法官強調申請人在慢線行車，以當時天雨路滑，40至50公里的車速亦會造成嚴重後果。" } }, { "doc_id": 38, "seg_id": 21, "translation": { "en": "The learned judge emphasized that the goods vehicle had been mechanically sound according to the evidence, and the applicant’s claim that the braking system had failed to respond was just an excuse. The learned judge pointed out that the goods vehicle was not carrying any goods, the road was flat and at the time of the accident, the applicant did not use the hand brake to brake or to reduce speed. The learned judge found that the reasonable and irresistible inference to be drawn was that the applicant had driven dangerously.", "zh-HK": "原審法官強調證據顯示貨車機件正常而申請人指制動器沒有反應亦是自圓其說。原審法官指出貨車沒有貨物，道路平坦，意外時申請人亦沒有用手掣來剎車或減速。原審法官認為合理及不可抗拒的推論是申請人有危險駕駛。" } }, { "doc_id": 38, "seg_id": 22, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 38, "seg_id": 23, "translation": { "en": "The main ground of appeal put forward by Mr Michael Leung for the applicant was that there was no concrete evidence to support the charge of dangerous driving. Mr Leung stressed that the trial judge had not specified the evidential basis on which he found the applicant’s way of driving to be dangerous so as to convict him as charged.", "zh-HK": "代表申請人的梁鴻谷大律師提出的主要上訴理由是案中沒有確實證據支持危險駕駛的罪行。梁大律師強調原審法官沒有指明基於甚麼證據來裁定申請人的駕駛方式危險並因而裁定申請人面對的控罪成立。" } }, { "doc_id": 38, "seg_id": 24, "translation": { "en": "Mr Leung also submitted that in rejecting the applicant’s claim that the braking system had been inoperative, the trial judge only considered the complaint he made to the police at the scene but failed to take into account the fact that he had made the same complaint to the investigating police while in hospital and that he had asked the vehicle owner to have the vehicle examined.", "zh-HK": "梁大律師亦指原審法官否定申請人指制動系統失效的說法時，只考慮他在現場向警員作出的投訴，而沒有考慮他在醫院時亦有向調查警員作出過同一投訴，並曾有要求車主驗車。" } }, { "doc_id": 38, "seg_id": 25, "translation": { "en": "Mr Leung emphasized that the vehicle examiner’s conclusion that the braking system of the goods vehicle had been functioning normally was only based on a stationary test instead of a road test. He argued that the vehicle examiner’s conclusion was not inconsistent with the applicant’s claim made after the accident that the brakes had been ineffective. Mr Leung’s stance was that the result of a road test might have supported the applicant’s case.", "zh-HK": "梁大律師強調驗車專家認定貨車的制動系統操作正常的結論只是建基在靜止測試，而沒有根據路面測試作出。梁大律師指驗車專家的結論和申請人在意外後指剎車掣失靈的說法並非不符。梁大律師的立場是路面測試的結果可能會支持申請人的說法。" } }, { "doc_id": 38, "seg_id": 26, "translation": { "en": "Mr Leung submitted that the applicant’s conviction was unsafe and unsatisfactory.", "zh-HK": "梁大律師認為裁定申請人有罪是不安全及不穩妥的。" } }, { "doc_id": 38, "seg_id": 27, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 38, "seg_id": 28, "translation": { "en": "The trial judge’s finding that the goods vehicle had been mechanically sound was based on evidence from various sources.", "zh-HK": "原審法官裁定貨車機件正常是建基在多方面的證據。" } }, { "doc_id": 38, "seg_id": 29, "translation": { "en": "Apart from the undisputed expert report which showed that the foot braking system and the parking braking system were functioning properly, the trial judge pointed out that at the time of the accident, there were no braking sounds or “sounding of the horn”, nor had the applicant cried out or used the hand brake to stop or slow down the goods vehicle.", "zh-HK": "除了無爭議的專家報告顯示貨車腳掣制動系統和泊車掣制動系統正常外，原審法官指出意外時沒有剎車聲，沒有“響銨”聲，而申請人亦沒有叫嚷，或用手掣令貨車停止或減速。" } }, { "doc_id": 38, "seg_id": 30, "translation": { "en": "The trial judge stressed that the goods vehicle had been repaired one month before the accident and the foot brake had also been checked. Moreover, the goods vehicle was required to be examined annually for the renewal of the vehicle licence.", "zh-HK": "原審法官強調意外前一個月，貨車曾有維修，亦有檢查腳掣，而每年貨車亦要驗車才能換領行車證。" } }, { "doc_id": 38, "seg_id": 31, "translation": { "en": "At the trial, the applicant did not produce any evidence to show that there had been any problem with the braking system of the goods vehicle, nor did he allege or adduce any evidence that while a stationary test showed the braking system of the goods vehicle to be functioning normally, that did not necessarily mean that it was normal when the vehicle was moving. In those circumstances, there were absolutely ample reasons for the trial judge to find that at the time of the accident, the mechanical parts of the goods vehicle, including the braking system, were functioning properly. Mr Leung’s complaint on this ground could not stand.", "zh-HK": "原審時，申請人沒有提出任何證據顯示貨車制動系統有任何問題，亦沒有指稱或提出證據，證明靜止測試顯示貨車制動系統操作正常時，不一定表示行車時，系統亦正常。在上述情況下，原審法官絕對有足夠理由裁定意外時貨車的機件，包括制動系統操作正常。梁大律師的這一點投訴不成立。" } }, { "doc_id": 38, "seg_id": 32, "translation": { "en": "After the accident, the applicant told the investigating police that the braking system of the goods vehicle had been ineffective, and he later made the same claim in hospital. That claim, however, was his one-sided story. The applicant did not give evidence and hence did not make the same claim under oath. His one-sided assertion was not tested.", "zh-HK": "申請人在意外後，向調查警員說過貨車制動系統失效，其後他在醫院再作出相同指稱。該些指稱都屬片面的說法。申請人沒有作供，故沒有在宣誓下作出同樣的說法，其片面的說法未遭測試。" } }, { "doc_id": 38, "seg_id": 33, "translation": { "en": "In our view, it was absolutely reasonable and correct for the trial judge to reject the applicant’s explanation that the braking system of the goods vehicle had become ineffective and dismiss that as an excuse.", "zh-HK": "本庭認為，原審法官否定申請人指貨車制動系統失靈的解釋，並指該解釋是自圓其說，絕對是合理正確的裁決。" } }, { "doc_id": 38, "seg_id": 34, "translation": { "en": "The main contention in this appeal was whether there was sufficient evidence to allow the trial judge to draw the only reasonable inference, namely that the applicant’s way of driving constituted dangerous driving.", "zh-HK": "本上訴的主要爭議點是是否有足夠證據令原審法官得出唯一合理的推論，顯示申請人的駕駛方法構成危險駕駛罪行。" } }, { "doc_id": 38, "seg_id": 35, "translation": { "en": "Pursuant to section 36(4) of Chapter 374 of the Laws of Hong Kong, a person is to be regarded as driving dangerously if the way he drives falls far below what would be expected of a competent and careful driver; and it would be obvious to a competent and careful driver that driving in that way would be dangerous.", "zh-HK": "根據香港法例第374章第36(4)條，危險駕駛是指某人駕駛汽車的方式，遠遜於一個合格而謹慎的駕駛人會被期望達到的水平；及對一個合格而謹慎的駕駛人而言，該人以該方式駕駛汽車屬危險，會是顯然易見的。" } }, { "doc_id": 38, "seg_id": 36, "translation": { "en": "Sections 36(6) and 36 (7) set out what constitutes “dangerous” driving as follows:", "zh-HK": "條例第36(6)及36(7)條亦就如何構成“危險”駕駛作出以下闡釋：" } }, { "doc_id": 38, "seg_id": 37, "translation": { "en": "“(6) For the purposes of subsections (4) and (5), “dangerous” refers to danger either of injury to any person or of serious damage to property.", "zh-HK": "“(6)就第(4)及(5)款而言，‘危險’指對任何人造成損傷或對財產造成嚴重損壞的危險。" } }, { "doc_id": 38, "seg_id": 38, "translation": { "en": "(7) For the purposes of subsections (4) and (5), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including –", "zh-HK": "(7)就第(4)及(5)款而言，斷定在某個案中，對合格而謹慎的駕駛人有何預期，或斷定在某個案中，對合格而謹慎的駕駛人而言甚麼是顯然易見，須顧及該個案的整體情況，包括：" } }, { "doc_id": 38, "seg_id": 39, "translation": { "en": "(a) the nature, condition and use of the road concerned atthe material time;", "zh-HK": "(a)在關鍵時間有關道路的性質﹑狀況及使用情況；" } }, { "doc_id": 38, "seg_id": 40, "translation": { "en": "(b) the amount of traffic which is actually on the road concerned at the material time or what might reasonably be expected to be on the road concerned at the material time; and", "zh-HK": "(b)在關鍵時間在有關道路上的實際交通流量，或按理可預期的在關鍵時間在該道路上的交通流量；及" } }, { "doc_id": 38, "seg_id": 41, "translation": { "en": "(c) the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused.”", "zh-HK": "(c)能夠預期被告知悉的有關情況(包括被告的身體狀況)以及經證明被告已知悉的任何情況(包括被告的身體狀況)。”" } }, { "doc_id": 38, "seg_id": 42, "translation": { "en": "Whether a person’s way of driving is dangerous is a matter to be decided objectively, but the elements of the offence of dangerous driving do not include any specific intent to drive dangerously. Lord Woolf CJ, in AG’s Reference (No. 4 of 2000) (R v GC) [2001] R. T. R. 415 at p. 425, made the following comments:", "zh-HK": "要決定某人的駕駛方式是否危險時，應採納客觀的論證準測。但危險駕駛罪行的要素不包括故意作出危險駕駛的行為。Lord Woolf大法官在AG’s Reference (No. 4 of 2000) (R v GC) [2001] R.T.R 415案的判案書第425頁有以下評論：" } }, { "doc_id": 38, "seg_id": 43, "translation": { "en": "“As is pointed out by the Attorney General, there are two limbs to the definition of “dangerous driving”: first, that the driving fell far below that of a careful and competent driver; and", "zh-HK": "“誠如律政司指出，危險駕駛的定義由兩部分組成：第一，駕駛方式遠遜於一個合格而謹慎的駕駛人所可預期的；及" } }, { "doc_id": 38, "seg_id": 44, "translation": { "en": "secondly, that it would be obvious to a careful and competent driver that driving in such a way would be dangerous.", "zh-HK": "第二，合格和謹慎的駕駛人會認為以該方式駕駛汽車顯然是危險的。" } }, { "doc_id": 38, "seg_id": 45, "translation": { "en": "The essential limbs, as is common ground, do not require any specific intent to drive dangerously. The section [sic] sets out a wholly objective test. The concept of what is obvious to a careful driver places the question of what constitutes dangerous driving within the province of the jury. It is the jury who should set the standard as to what is or what is not dangerous driving.”", "zh-HK": "雙方同意，上述主要部分並不包括故意去危險駕駛。條例列出的驗證標準完全是客觀的。合格和謹慎的駕駛人會否認為某駕駛行為顯然是危險的概念，將甚麼構成危險駕駛之議題交由陪審團裁決，陪審團有權提出危險駕駛之驗證標準。”(非官方翻譯)" } }, { "doc_id": 38, "seg_id": 46, "translation": { "en": "The accident in the present case led to extremely serious consequences, including death to Ms Kwok, in addition to injuries to numerous passers-by and serious damage to property. However, in deciding whether the applicant was guilty of dangerous driving, the court must base its consideration on his way of driving rather than the consequences of the accident.", "zh-HK": "本案所涉及的意外導致極為嚴重的後果，除了郭女士死亡外，亦有多名途人受傷及嚴重的財產損毀。但決定申請人是否犯有危險駕駛罪，需根據他的駕駛方式而非意外所導致的後果而定。" } }, { "doc_id": 38, "seg_id": 47, "translation": { "en": "Dangerous driving is a conclusion which must be drawn on the basis of the acts related to the way of driving. Evidence that supports the charge of dangerous driving may include:", "zh-HK": "危險駕駛是一項結論，該結論必需根據和駕駛方式有關的行為而作出，支持危險駕駛行為的證據可以包括：" } }, { "doc_id": 38, "seg_id": 48, "translation": { "en": "(1) Excessive speeding, particularly when it is raining and the road is slippery.", "zh-HK": "(一)嚴重超速，特別是在天雨路滑的情況下超速。" } }, { "doc_id": 38, "seg_id": 49, "translation": { "en": "(2) Non-compliance with traffic signs, such as driving through a police road block; “jumping a red light”; failure to stop in front of a “zebra crossing” to give way to pedestrians; ignoring pedestrian stud crossing and driving past at high speed; driving into a “No entry” section of road; speeding at double white lines, etc.", "zh-HK": "(二)不遵守交通標誌，例如衝警方所設的路障；“衝紅燈”；“斑馬線”前不停車讓行人先過馬路；不理會行人過馬路輔助線高速駛過；駛入不準駛入路段；雙白線超速等。" } }, { "doc_id": 38, "seg_id": 50, "translation": { "en": "(3) Ignoring road safety regulations, such as intentionally driving a vehicle that is not maintained in good condition; driving a goods vehicle that is greatly overloaded; going against traffic directions and driving a heavy goods vehicle down a very steep slope; illegal car racing, etc.", "zh-HK": "(三)不理會交通安全規則，例如故意駕駛一輛並非維持良好狀態的車輛；駕駛一輛極度超重貨車；違反交通指示，將重型貨車駛過極斜的下山路段；非法賽車等等。" } }, { "doc_id": 38, "seg_id": 51, "translation": { "en": "(4) Disregarding the danger and going on driving, while knowing full well that one’s physical condition is not good and hence not suitable to drive, such as being under the influence of alcohol or drugs or being generally ill.", "zh-HK": "(四)明知自己身體狀況不佳，包括醉酒﹑受藥物影響或有病，故不適宜駕駛，而仍然不顧危險，繼續駕駛。" } }, { "doc_id": 38, "seg_id": 52, "translation": { "en": "Of course the above examples are just factors to be considered in dealing with acts of dangerous driving and they by no means represent an exhaustive list of all relevant factors.", "zh-HK": "當然上述例子只是處理危險駕駛行為時可作考慮的因素，而非有關因素的全面清單。" } }, { "doc_id": 38, "seg_id": 53, "translation": { "en": "If the above or similar way of driving falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous, then the driver concerned would be guilty of dangerous driving.", "zh-HK": "假若上述或同類駕駛方式遠遜於一個合格而謹慎的駕駛人會被期望達到的水平，及對一個合格而謹慎的駕駛者而言，駕駛者以該等方式駕駛汽車屬危險，會是顯然易見的，則該名駕駛者就是犯了危險駕駛罪。" } }, { "doc_id": 38, "seg_id": 54, "translation": { "en": "To support the charge of dangerous driving, the prosecution must point out what driving acts of the defendant constitute dangerous driving. They must also adduce sufficient evidence to establish that those driving acts fall far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that the defendant’s driving in that way would be dangerous.", "zh-HK": "要支持一項危險駕駛罪，控方要指出被告人的甚麼駕駛行為構成危險駕駛，亦要提出足夠證據證明該駕駛行為遠遜一個合格而謹慎的駕駛者會被期望達到的水平，而對一名合格及謹慎的駕駛人而言，被告人的駕駛方式顯然易見是屬危險的。" } }, { "doc_id": 38, "seg_id": 55, "translation": { "en": "The prosecution cannot rely on the doctrine of res ipsa loquitur to prove dangerous driving (see R v Kit Wing-wo [1985] 1 HKC 204).", "zh-HK": "控方不能利用“事情不言自明”(res ipsa loquitur)的法律原則證明危險駕駛罪行(見R v Kit Wing-wo [1985] 1 HKC 204案)。" } }, { "doc_id": 38, "seg_id": 56, "translation": { "en": "In the present case, the trial judge pointed out that the applicant had not “sounded the horn”, shouted loudly, “braked”, turned on the hazard light or used the hand brake to brake and stop the goods vehicle. Hence he found that the applicant’s way of driving fell far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.", "zh-HK": "在本案，原審法官指出申請人沒有“響銨”，沒有大聲叫嚷，沒有“剎車”，沒有按動緊急燈號，沒有用手掣來剎停貨車，並因此認定申請人的行徑遠低於一個合格而謹慎的駕駛者應有的駕駛水平，而一名合格和謹慎的駕駛者亦會認為他的駕駛方式顯然是危險的。" } }, { "doc_id": 38, "seg_id": 57, "translation": { "en": "The above factors set out by the learned judge only show that the applicant had failed to take appropriate measures to prevent the accident from further worsening after the accident had happened and in a split of a second, but they were not factors that constituted dangerous driving. They were therefore irrelevant to the charge.", "zh-HK": "原審法官所列出的上述因素只顯示申請人在意外發生後及在電光火石間未能採取適當的方法避免意外繼續惡化，而非構成危險駕駛的因素，故和控罪無關。" } }, { "doc_id": 38, "seg_id": 58, "translation": { "en": "The accident in this case was most likely caused by a momentary loss of control when the applicant was driving at a relatively high speed in the circumstances concerned, when it was raining and the road was slippery. Mr Robert Lee, SADPP, who appeared on behalf of the respondent stressed that taking into account the road conditions at the material time, the applicant’s speed alone was sufficient to support the allegation of dangerous driving, and judging from the trial judge’s reasons for verdict as a whole, it was on that very basis that the applicant was convicted.", "zh-HK": "本案所涉的事故極可能是申請人在天雨路滑的情況下，以當時環境而言屬較高車速行駛，一時失控所導致。代表答辯人的高級助理刑事檢控專員李鏡鏞強調單就申請人的車速，以當時的路面情況而言，足以支持危險駕駛的指控，而根據原審法官的裁決理由書的整體內容，原審法官亦是以該基礎來裁定申請人有罪的。" } }, { "doc_id": 38, "seg_id": 59, "translation": { "en": "We do not agree with Mr Lee’s submission. Although the learned judge said that the applicant was driving at a speed of 40 to 50 km/hr at the material time and found that the road conditions at that time were such that a speed of 40 to 50 km/hr could lead to serious consequences, he did not convict him for dangerous driving on the basis of his speed. Nor did he set out other objective factors relevant to the applicant’s way of driving to show that his speed at the material time was sufficient to constitute dangerous driving.", "zh-HK": "本庭不同意李高級助理刑事檢控專員的立場。雖然原審法官指出申請人案發時的車速是每小時40至50公里，並認為以事發時的路面情況，40至50公里的時速亦會造成嚴重的後果，但原審法官沒有根據申請人的車速來裁定他面對的危險駕駛罪罪名成立。原審法官亦沒有指出和申請人駕駛方式有關的其他客觀因素，證明申請人事發時的車速足以構成危險駕駛罪行。" } }, { "doc_id": 38, "seg_id": 60, "translation": { "en": "We agree with Mr Leung’s submission that the trial judge did not identify what way of driving of the applicant constituted dangerous driving. We do not agree that on the facts of this case, the applicant’s speed at the material time alone was sufficient to establish that he was guilty of dangerous driving.", "zh-HK": "本庭認同梁大律師的立場，即原審法官並沒有列出申請人的哪一種駕駛方式構成危險駕駛。本庭亦不同意以本案的案情而言，單單是申請人在事發時的車速，便足以證明他犯了危險駕駛罪。" } }, { "doc_id": 38, "seg_id": 61, "translation": { "en": "In those circumstances, we concluded that the applicant’s conviction for dangerous driving causing death was unsafe. However, taking into account the facts of this case and the fact that the applicant did not testify to explain the reasons for the accident, a reasonable and irresistible inference to be drawn was that the applicant had driven carelessly (see R v Kit Wing-wo [1985] 1 HKC 204, Wright v Wenlock [1971] RTR 228, Rabjohns v Burgar [1971] RTR 234, etc cited by Mr Lee). Mr Leung raised no dispute in that regard.", "zh-HK": "在上述情況下，本庭認為裁定申請人危險駕駛引致他人死亡罪是不穩妥的。但以本案的案情而言及在申請人沒有作供解釋造成意外的原因，一項合理及不可抗拒的推論是申請人有不小心駕駛(見李高級助理刑事檢控專員援引的R v Kit Wing-wo [1985] 1 HKC 204, Wright v Wenlock [1971] RTR 228, Rabjohns v Burgar [1971] RTR 234等案)。對此，梁大律師亦不表異議。" } }, { "doc_id": 38, "seg_id": 62, "translation": { "en": "In the result, we allow the applicant’s application for leave to appeal and, treating the application as the appeal proper, allow the applicant’s appeal. We quash his conviction for dangerous driving causing death and substitute a conviction for careless driving.", "zh-HK": "因此，本庭批准申請人上訴，並視其申請為正式上訴。本庭裁定申請人上訴得直，其危險駕駛引致他人死亡罪撤銷而代之以不小心駕駛罪。" } }, { "doc_id": 38, "seg_id": 63, "translation": { "en": "Sentence", "zh-HK": "判刑" } }, { "doc_id": 38, "seg_id": 64, "translation": { "en": "Having heard submissions from Mr Leung, we found that the applicant’s offence of careless driving was serious and the accident resulted in extremely serious consequences, including casualties and severe damage to property. Hence a short term of imprisonment would be appropriate. In view of the fact that the applicant has been in prison for over two months, and that this matter must have left him extremely troubled, we order that in respect of the sentence for careless driving, the applicant shall serve such period of imprisonment as will allow his immediate release without imposing any further penalty on him. However, we do order that the applicant be disqualified from holding or obtaining any types of driving licence for two years starting from the date of the original sentence, namely, that he be disqualified from driving for two years.", "zh-HK": "經聆聽過梁大律師的陳述後，本庭認為申請人的不小心駕駛行為嚴重，而意外更導致極為嚴重的後果，包括人命傷亡及嚴重的財物損毀，因此申請人應判短時間的監禁。考慮到申請人已服刑超過兩個月，事件亦必然令申請人受極度困擾。本庭下令申請人不小心駕駛罪的判刑可令他能即時獲釋，毋需另加懲罰。但本庭下令申請人在原判刑後的兩年內，不能擁有或考取任何種類的駕駛執照，亦即停牌兩年。" } }, { "doc_id": 38, "seg_id": 65, "translation": { "en": "Mr Robert Lee, SADPP of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員李鏡鏞代表。" } }, { "doc_id": 38, "seg_id": 66, "translation": { "en": "Mr Michael H.K. Leung, instructed by Boase Cohen & Collins, for the applicant", "zh-HK": "申請人：由布高江律師行轉聘大律師梁鴻谷代表。" } }, { "doc_id": 39, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the Reasons for Judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 39, "seg_id": 2, "translation": { "en": "Appeal allowed", "zh-HK": "上訴得直" } }, { "doc_id": 39, "seg_id": 3, "translation": { "en": "The two appellants were charged with 8 counts of fraud and were convicted after trial before Deputy District Judge Merinda Chow. The 1st appellant was sentenced to imprisonment for 4 years and 3 months and the 2nd appellant imprisonment for 4 years and 6 months.", "zh-HK": "兩名上訴人被控八項欺詐罪。案件經區域法院暫委法官周燕珠審訊後，兩名上訴人被裁定罪名成立，第一上訴人被判監四年零三個月，第二上訴人則被判監四年零六個月。" } }, { "doc_id": 39, "seg_id": 4, "translation": { "en": "The two appellants applied for leave to appeal against their convictions and sentences. After hearing, we granted leave to appeal against convictions and, treating the hearing of the applications as the hearing of the appeal proper, allowed their appeal and quashed their convictions. At the same time, we refused the respondent’s application for a re-trial. We now set out the reasons for our judgment.", "zh-HK": "兩名上訴人就定罪及刑期提出上訴許可申請。本庭經聆訊後批准兩名上訴人針對定罪提出的上訴許可申請，並視該申請為正式上訴、批准他們的上訴及撤銷定罪。本庭同時拒絕答辯人所提出的重審申請。以下是本庭的判案理由。" } }, { "doc_id": 39, "seg_id": 5, "translation": { "en": "Particulars of charges", "zh-HK": "控罪詳情" } }, { "doc_id": 39, "seg_id": 6, "translation": { "en": "The particulars of the 8 charges were that, between 28 November 2002 and 30 December 2002, the two appellants deceived the Bank of China (hereinafter “BoC”) on 8 separate occasions. They falsely represented to BoC that there were genuine transactions underlying the letters of credit issued by BoC upon applications by one Harbour Best Development Limited (hereinafter “Harbour Best”), and induced BoC to make payments under the said letters of credit, which resulted in benefit to the 1st appellant and/or Harbour Best or in prejudice or a substantial risk of prejudice to BoC.", "zh-HK": "八項控罪的詳情指，兩名上訴人在 2002 年 11 月 28 日至 12 月 30 日期間分別八次欺騙中國銀行（簡稱「中銀」）。他們虛假地向中銀表示由中銀應「港惠發展有限公司」（簡稱「港惠」）的申請而發出的信用證是一項真正的交易，誘使中銀根據該信用證支付貨款，導致第一上訴人及/或港惠獲得利益，或導致中銀蒙受不利或有相當程度性會蒙受不利。" } }, { "doc_id": 39, "seg_id": 7, "translation": { "en": "Agreed facts", "zh-HK": "同意案情" } }, { "doc_id": 39, "seg_id": 8, "translation": { "en": "On the facts to which the parties had agreed, the 1st appellant owned and controlled a number of companies, among which Harbour Best and one Focus Developments Limited (hereinafter “Focus”) were relevant to the present case.", "zh-HK": "根據控辯三方所提出的同意案情，第一上訴人擁有多間公司的權制權，而與本案有關連的公司是港惠和「聚資發展有限公司」（簡稱「聚資」）。" } }, { "doc_id": 39, "seg_id": 9, "translation": { "en": "The 2nd appellant was one of the partners of one Chi Shing Industrial Investment Development Company (hereinafter “Chi Shing”). Her husband Wong Kam Shing (王金成) was the other partner of Chi Shing.", "zh-HK": "第二上訴人是一間名為「志成實業投資發展公司」（簡稱「志成」）的其中一名合夥人，而志成的另一名合夥人是她的丈夫王金成。" } }, { "doc_id": 39, "seg_id": 10, "translation": { "en": "Harbour Best held a bills facilities account with Yien Yieh Commercial Bank which was under the BoC Group. The 1st appellant was the sole authorized signatory of the account and could use the account to apply for letters of credit.", "zh-HK": "港惠擁有中銀集團旗下的鹽業銀行的押匯服務戶口。第一上訴人是該戶口的唯一授權簽名人，他可以利用該戶口申請信用證。" } }, { "doc_id": 39, "seg_id": 11, "translation": { "en": "Harbour Best applied to BoC for 8 letters of credit in favour of Chi Shing on 8 different days between 28 November 2002 and 27 December 2002.", "zh-HK": "2002 年 11 月 28 日至 2002 年 12 月 27 日期間，港惠分別在八個不同的日子向中銀申請八張信用證，而有關信用證的受惠人就是志成。" } }, { "doc_id": 39, "seg_id": 12, "translation": { "en": "Harbour Best submitted 8 applications for letters of credit to BoC and arranged for the relevant cargo receipts. Believing that there were genuine sale and purchase transactions between Harbour Best and Chi Shing, BoC issued 8 letters of credit to Chi Shing.", "zh-HK": "港惠向中銀提交八張信用證申請書，並安排相關的收貨單據，中銀確信港惠與志成之間存在真實買賣後向志成簽發了八張信用證。" } }, { "doc_id": 39, "seg_id": 13, "translation": { "en": "Chi Shing presented the invoices, cargo receipts signed by Harbour Best and 8 letters of credit to BoC in support of Chi Shing’s applications for the release of monies under the 8 letters of credit. The 2nd appellant issued 8 sight drafts to BoC and requested BoC to release monies to Chi Shing pursuant to the 8 letters of credit.", "zh-HK": "志成將發票、港惠簽收的收貨單據(Cargo Receipt)和八張信用證交予中銀，作為申請發放八張信用證貨款的憑証。第二上訴人向中銀發出八張即期匯票(Sight Draft)，要求中銀按八張信用證發放貨款予志成。" } }, { "doc_id": 39, "seg_id": 14, "translation": { "en": "The content of one of the cargo receipts signed by Harbour Best is shown below. With the exception of the transaction details, all the cargo receipts were in identical terms.", "zh-HK": "以下是其中一張港惠簽收的收貨單據，除了交易詳情外，其他收貨單據的內容都是相同的。" } }, { "doc_id": 39, "seg_id": 15, "translation": { "en": "[signed by the 1st appellant.]", "zh-HK": "[第一上訴人簽署。]’" } }, { "doc_id": 39, "seg_id": 16, "translation": { "en": "Accepting that there were substantial transactions between Harbour Best and Chi Shing and acting on the letters of credit and sight drafts presented by Chi Shing, BoC deposited 8 sums representing payments for the goods into Chi Shing’s bank account on various dates. Whenever Chi Shing received a payment, it immediately transferred the money to a bank account opened in the name of Focus and controlled by the 1st appellant. Subsequently, all the relevant payments were either deposited, in one go or by numerous instalments, into other bank accounts of Harbour Best or Focus or other corporate accounts controlled by the 1st appellant, or withdrawn in cash by someone.", "zh-HK": "中銀接納港惠與志成曾作出的實質交易後按志成提交的信用證和即期匯票，把八筆貨款於不同日子存入志成的銀行戶口內。當志成收到有關貨款後就立刻將該筆款項轉到一個由第一上訴人控制、以聚資名義所開設的銀行戶口內。稍後有關貨款全數一次或分作多次被存入港惠、聚資的其他銀行戶口或其他由第一上訴人控制的公司戶口內，又或者被人以現金形式提取。" } }, { "doc_id": 39, "seg_id": 17, "translation": { "en": "According to the bank affidavits provided by the staff of BoC, had BoC known that there was no substantial transaction between the buyer and the seller, BoC would not have approved and issued the 8 letters of credit or released the payments for goods, in order to avoid unnecessary losses.", "zh-HK": "根據中銀職員提供的銀行誓章，若中銀知道買賣雙方並沒有進行實質交易的話，中銀是不會批出八張信用證或發放貨款，以免中銀蒙受不必要的損失。" } }, { "doc_id": 39, "seg_id": 18, "translation": { "en": "The above are the relevant agreed facts. The two appellants exercised their right of silence in the course of the investigation.", "zh-HK": "上述是有關的同意案情。兩名上訴人在接受調查期間行使緘默權。" } }, { "doc_id": 39, "seg_id": 19, "translation": { "en": "Evidence from the Social Welfare Department", "zh-HK": "社署的証供" } }, { "doc_id": 39, "seg_id": 20, "translation": { "en": "The prosecution called two staff members of the Social Welfare Department (hereinafter “SWD”) to give evidence at trial. Their evidence showed that the 2nd appellant and her husband Wong Kam Shing had in the past made numerous applications to SWD for Comprehensive Social Security Assistance. The application form submitted by the 2nd appellant to SWD on 14 October 2004 showed that she had neither declared that she ran her own company and had income, nor had disclosed her ownership of Chi Shing or the said 8 transactions. When verifying the 2nd appellant’s assets, the staff of SWD found that she and her husband Wong Kam Shing were the directors of 4 companies and hence requested an explanation from her. She replied to SWD that she and her husband acted as “nominal directors” of a number of companies upon requests of their relatives and friends, but they had never received any remuneration or benefit from those companies, and those companies had not been in any substantial operation since their incorporation.", "zh-HK": "控方在原審時傳召了兩名社會福利署（‘社署’）職員作供，他們的証供顯示第二上訴人及其丈夫王金成過往曾多次向社署申請‘綜合社會保障援助’。根據第二上訴人在 2004 年 10 月 14 日向社署所提交的申請表內容，她沒有申報她本人經營公司和有收入，亦沒有披露她擁有志成及有關的八次交易。當社署職員在審核第二上訴人的資產時，發現她及其丈夫王金成是四間公司的董事，故此要求她作出解釋。第二上訴人對社署的回覆是她本人及丈夫應親友的要求，分別出任多間公司的「掛名董事」，他們從沒有獲得有關公司的任何薪酬及利益，而該些公司自成立以來都沒有任何實質的營運。" } }, { "doc_id": 39, "seg_id": 21, "translation": { "en": "Prosecution’s stance", "zh-HK": "控方的立場" } }, { "doc_id": 39, "seg_id": 22, "translation": { "en": "The respondent at trial took the stance that no substantial transaction of sale and purchase of raw plastic materials had been conducted between Harbour Best and Chi Shing. According to the written opening submissions of Counsel for the respondent, the business of Harbour Best included the manufacture of CDs. Harbour Best all along purchased from a supplier in Taiwan raw plastic materials for making CDs. However, according to the information in the letters of credit, the 1st appellant claimed to BoC that he had purchased 8 batches of raw plastic materials from Chi Shing. And tracing the movement of the funds under the 8 letters of credit, all the funds used by Harbour Best for the purchases would ultimately be deposited into bank accounts opened in the name of Harbour Best or bank accounts opened in the names of companies controlled by the 1st appellant.", "zh-HK": "答辯人在原審時所持的立場是港惠與志成之間並沒有進行任何實質的買賣塑膠原材料交易。根據答辯人代表律師的開案陳述書，港惠的業務當中包括生產光碟。港惠一直都是向台灣的物料供應商購買光碟的塑膠原材料；但根據信用證的資料，第一上訴人向中銀聲稱他向志成購買了八批塑膠原材料，而根據八張信用證的款項流程，所有港惠用於購貨的款項最終都會存入以港惠名義所開設的銀行戶口或由第一上訴人控制的公司名義所開設的銀行戶口內。" } }, { "doc_id": 39, "seg_id": 23, "translation": { "en": "Defence of the 1st appellant", "zh-HK": "第一上訴人的答辯理由" } }, { "doc_id": 39, "seg_id": 24, "translation": { "en": "Judge Chow ruled that the prosecution had established a prima facie case against the two appellants who then had a case to answer. The 1st appellant elected to give evidence.", "zh-HK": "周法官裁定控方提出了表面証據，兩名上訴人需要答辯，第一上訴人選擇作供。" } }, { "doc_id": 39, "seg_id": 25, "translation": { "en": "The 1st appellant claimed that he also owned another company called Top Fortune Enterprises Limited (hereinafter “Top Fortune”), the business of which comprised the production of drama series, copyright distribution and the manufacture of VCDs. He said that Wong Kam Shing had suggested to him that he should set up a factory to produce PC pellets directly in order to supply the same to companies under his group for the manufacture of VCDs. As a result, he set up Top Fortune to produce the relevant materials. Subsequently, as it turned out that the materials required by the VCD manufacturing factory only took up one-third of the materials produced by Top Fortune, the remaining two-thirds, for which no buyer could be found, were stockpiled in the factory premises. The 1st appellant then sought to sell the batch of materials through Chi Shing in order to get out of financial trouble. The 1st appellant’s evidence on the said transactions can be summarized as follows:", "zh-HK": "第一上訴人聲稱他亦擁有另一間公司，即「德運企業有限公司」（簡稱「德運」），他的業務包括劇集製作、版權發行及視像光碟生產。他說王金成建議他開設廠房，直接生產塑膠拉粒以供應他集團旗下的公司生產影碟，故此他成立德運來生產有關的材料。後來由於光碟製造廠所需用的材料只佔德運生產的三分之一，其餘的三分二材料因找不到買家而囤積在廠房內。第一上訴人遂透過志成出售這批材料，以解決財政困難。第一上訴人就該項交易作出的証供簡述如下：" } }, { "doc_id": 39, "seg_id": 26, "translation": { "en": "The 1st appellant sold the goods to Harbour Best.", "zh-HK": "第一上訴人將這些貨品售予港惠。" } }, { "doc_id": 39, "seg_id": 27, "translation": { "en": "The transactions involved in the present case were the sale of goods by one of the companies in his group to an associated company, namely by Top Fortune to Harbour Best, and Chi Shing received the goods on behalf of Harbour Best. He said, “Chi Shing was my agent for the sale of this product …”.", "zh-HK": "涉案的交易是他旗下的相關的公司賣予相關的公司，即德運賣予港惠，而志成是代表港惠收貨。他說：「志成幫我代理呢隻產品嚟銷售….」。" } }, { "doc_id": 39, "seg_id": 28, "translation": { "en": "The 1st appellant purchased goods from Top Fortune through Harbour Best because only Harbour Best had a credit facilities agreement with the bank. He obtained cash by means of Harbour Best’s letters of credit and then used the money to meet the production cost.", "zh-HK": "第一上訴人以港惠向德運買貨，是因為唯有港惠與銀行有信貸協議。他藉此以港惠的信用證套取現金支付生產成本。" } }, { "doc_id": 39, "seg_id": 29, "translation": { "en": "It was out of sympathy that the 1st appellant invited Wong Kam Shing and the 2nd appellant to work for him. The work that Wong Kam Shing and the 2nd appellant did required no special skill.", "zh-HK": "第一上訴人請王金成及第二上訴人為他辦事，是出於同情。王金成與第二上訴人所做的事，並不需要特別技能。" } }, { "doc_id": 39, "seg_id": 30, "translation": { "en": "The 1st appellant said that if the goods were sold directly by Top Fortune to Harbour Best, “it might be perceived as being similar to insider dealing as I felt it was not too good”.", "zh-HK": "第一上訴人說，如果貨物由德運直接售予港惠，「感覺上好似內幕交易，因為我覺得唔係幾好」。" } }, { "doc_id": 39, "seg_id": 31, "translation": { "en": "The 2nd appellant", "zh-HK": "第二上訴人" } }, { "doc_id": 39, "seg_id": 32, "translation": { "en": "The 2nd appellant elected not to give evidence but relied on the 1st appellant’s evidence as her defence.", "zh-HK": "第二上訴人選擇不作供，但依賴第一上訴人的証供作為她的答辯理由。" } }, { "doc_id": 39, "seg_id": 33, "translation": { "en": "Judge Chow’s verdict", "zh-HK": "周法官的判決" } }, { "doc_id": 39, "seg_id": 34, "translation": { "en": "Judge Chow had this to say in her Reasons for Verdict:", "zh-HK": "周法官在判案書這樣說：" } }, { "doc_id": 39, "seg_id": 35, "translation": { "en": "“40.As mentioned above, I find that the eight transactions were false and there were no genuine transactions, and this was equivalent to acting dishonestly. The 2nd defendant [i.e. the 2nd appellant] assisted Harbour Best in obtaining letters of credit for $9.36 million knowing that it was improper to do so. The only inference that can be drawn is that she did not disclose the eight letters of credit so that it would not bring her trouble.”", "zh-HK": "「40.正如前言所裁定八次交易是虛假，並沒有真實交易，這等同行為不誠實。第二被告人（即第二上訴人）協助港惠取得 936 萬元的信用證，明知行為不當，唯一推論就是不把八次信用證揭露，以免帶來麻煩。」" } }, { "doc_id": 39, "seg_id": 36, "translation": { "en": "“41.Having analysed the facts of the case, I do not accept the evidence given by the 1st defendant [i.e. the 1st appellant]. I find that the eight transactions were false and were for the purpose of obtaining $9.36 million in cash at a low interest rate by making use of the existing credit facilities that the 1st defendant had with the bank.”", "zh-HK": "「41.本席分析案情後，不接納第一被告人（即第一上訴人）之證供，裁定八項交易是虛假，目的在利用第一被告人與銀行現有的信用服務，以低利息套取現金 936 萬。」" } }, { "doc_id": 39, "seg_id": 37, "translation": { "en": "Reasons for verdict", "zh-HK": "判決的理由" } }, { "doc_id": 39, "seg_id": 38, "translation": { "en": "The most fundamental issue in the present case is whether the eight transactions were false. Judge Chow answered the question in the affirmative and held that no substantial transaction existed in the case. Her Reasons for Verdict showed that she did not accept that Chi Shing was an agent. She gave the following reasons for her verdict:", "zh-HK": "本案最基本的一項爭議點是八項交易是不是虛假的交易。周法官裁定它們是虛假的交易，案件不存在實質交易。判案書的內容顯示周法官並不認同志成是代理人。周法官基於以下的理由來作出裁決：" } }, { "doc_id": 39, "seg_id": 39, "translation": { "en": "The 1st appellant, on the one hand, said that he set up Top Fortune in order to reduce cost, but on the other hand, he employed Wong Kam Shing for a sum of $20,000 and, in addition, paid to Chi Shing additional service fees in respect of the said transactions. The two were contradictory. [Paragraph 28]", "zh-HK": "第一上訴人一方面說成立德運以減低成本，另一邊卻要用 $20000元聘請王金成，再給志成本交易的額外服務費，兩者前後矛盾。[第 28 段]" } }, { "doc_id": 39, "seg_id": 40, "translation": { "en": "Chi Shing was the beneficiary on the letters of credit and was the nominal seller. Without paying a cent, Chi Shing, in the capacity of the owner of the goods, claimed to BoC that it was the owner of the goods under the 8 letters of credit. There was no evidence to show that Chi Shing was the owner of the 8 batches of goods or had title to those goods. Similarly, there was no evidence to show that Chi Shing had either entered into a purchase agreement with Top Fortune or entered into a contract of sale with Harbour Best. [Paragraph 29]", "zh-HK": "志成在信用證上是受惠人，名義是賣方，未有支付分毫，卻以貨主身分向中銀聲稱為八張信用證的貨主，並無証供顯示志成是這八批貨物的貨主或擁有這批貨的物權。同樣，並無証供顯示志成與德運有購貨協議，或與港惠訂合了銷售合約。[第 29 段]" } }, { "doc_id": 39, "seg_id": 41, "translation": { "en": "The 1st appellant admitted that the goods concerned were never delivered to Chi Shing and that all the raw materials were still in the warehouse owned by the 1st appellant. [Paragraph 30]", "zh-HK": "第一上訴人承認有關貨物從來沒有送過到志成，所有原料仍留在第一上訴人擁有的貨倉內。[第 30 段]" } }, { "doc_id": 39, "seg_id": 42, "translation": { "en": "Given the 1st appellant’s admission that the goods were never delivered to Chi Shing, how could Chi Shing have delivered the goods? Chi Shing could not claim to be the owner of the 8 batches of goods as it had paid nothing to Top Fortune to purchase those goods. [Paragraph 35]", "zh-HK": "第一上訴人承認從沒有把貨物運去志成，那麼何來志成已送了貨？志成並沒有支付分毫予德運購八批貨物，不能稱為物主。[第 35 段]" } }, { "doc_id": 39, "seg_id": 43, "translation": { "en": "Our views", "zh-HK": "本庭意見" } }, { "doc_id": 39, "seg_id": 44, "translation": { "en": "With respect, we do not think that the reasons given by Judge Chow could support her finding that there had never been any substantial transaction between the two parties. Her finding apparently rested on her non-acceptance of the appellant’s claim that Chi Shing was an agent. In our judgment, the finding on the question of whether or not Chi Shing was an agent was wrong.", "zh-HK": "本庭不認為周法官所持的理由可以支持她裁定雙方沒有進行過實質交易的裁決。這個裁決明顯地是基於她不接納第一上訴人聲稱志成是代理人的說法。本庭認為有關志成是不是代理人的裁決是錯誤的。" } }, { "doc_id": 39, "seg_id": 45, "translation": { "en": "Under the law of contract, an agent can represent his principal in conducting a transaction with another party, and is free to choose to disclose or not to disclose who the principal is. Judge Chow ruled that there was no evidence to show that Chi Shing was the owner of the goods or had title to the goods because she had wrongly taken into consideration some irrelevant factors. If Chi Shing was an agent of Top Fortune in selling the goods, it did not have to become the owner of the goods before it could conduct any transaction with Harbour Best. If Chi Shing was an agent, whether it had paid for the purchase of the goods was not a relevant factor either.", "zh-HK": "根據合同法，一名代理人是可以代表他的委託人 (principal) 與另一方進行交易。代理人是可以選擇披露或不披露委託人的身分。周法官裁定本案沒有証據可顯示志成是貨物的貨主或擁有這批貨物的物權是因她錯誤地將一些沒有關連的因素納入考慮之列。若果志成是一名代表德運銷售貨物的代理人，它不需要成為這些貨物的貨主才可與港惠進行交易的。若果志成是一名代理人，它是否曾經付款購買這批貨物亦不是一項有關連的因素。" } }, { "doc_id": 39, "seg_id": 46, "translation": { "en": "It is true that there was no written agreement in respect of the transactions in the present case. However, neither a contract between an agent and the principal nor a contract for the sale and purchase of goods between an agent and another party is required by law to be in writing in order to take effect.", "zh-HK": "明顯地，本案的交易並沒有任何書面協議，但在法律上無論是代理人與委託人之間的合約或者代理人與另一方所達成的貨物買賣合約都不需要書面協議方可生效的。" } }, { "doc_id": 39, "seg_id": 47, "translation": { "en": "Furthermore, even if the said goods had not been removed from the warehouse where they were originally stored, it did not mean that there was no substantial transaction between the parties. Under the law of contract, physical delivery of goods by the seller to the buyer is not a prerequisite to the completion of a sale and purchase transaction. In the present case, on the 1st appellant’s evidence, the relevant goods did exist and he had taken stock for the purpose of the said transactions.", "zh-HK": "另外，就算有關貨物並未被搬離過原本存放的貨倉也不表示雙方沒有進行實質的交易。根據合同法，貨物的賣主是不需要將貨物實質地送達買方才算是完成交易的。在本案，根據第一上訴人的証供，有關的貨物的確存在，他並為了這次交易作出盤點。" } }, { "doc_id": 39, "seg_id": 48, "translation": { "en": "The only basis left of Judge Chow’s decision was that the 1st appellant on the one hand averred that he intended to cut cost but on the other hand incurred additional expenditure. This, however, only concerned the credibility of the 1st appellant’s evidence. In our view, this point did not substantively answer the question of whether Chi Shing acted as an agent in the said transactions.On the contrary, the other grounds that Judge Chow relied upon to dismiss what the 1st appellant said were plainly wrong. In our judgment, what the 1st appellant said about agency was not groundless. This being the case, Judge Chow’s ruling that Chi Shing was not an agent, and then her ruling that no genuine transaction existed in the case, were both unsafe.", "zh-HK": "周法官所依賴的理據只是第一上訴人一面堅稱他欲降低成本，但另一面卻作出額外支出的說法，但這說法只不過是涉及第一上訴人証供的可信性。本庭認為這一點未能實質解答志成是否在這次交易中擔當代理人的疑問；反而周法官在反駁這說法時所依賴的其他理據就明顯是錯誤的。本庭不認為代理人之說是沒有理據的。在這情況下，周法官裁定志成不是代理人，繼而裁定案件不存在真實的交易是項不穩妥的裁決。" } }, { "doc_id": 39, "seg_id": 49, "translation": { "en": "Since the prosecution’s cases against the 1st and 2nd appellants rested on the same basis, Judge Chow’s finding that there was no substantial transaction in the case had a direct impact on the convictions of both appellants.", "zh-HK": "由於控方針對第一及第二上訴人都是基於同一理據，故此周法官就案件作出沒有實質交易的裁決是直接影響他們兩人的定罪。" } }, { "doc_id": 39, "seg_id": 50, "translation": { "en": "Declaration made by the 2nd appellant in her application for public assistance", "zh-HK": "第二上訴人公援的申報" } }, { "doc_id": 39, "seg_id": 51, "translation": { "en": "In her Reasons for Verdict, Judge Chow made mention of the evidence from SWD but did not state clearly whether she relied on it. At trial, the 2nd appellant objected to the prosecution adducing such evidence, but Judge Chow ruled that the evidence was admissible. As the staff of SWD had not inquired of the 2nd appellant about Chi Shing, the 2nd appellant did not disclose to the staff the operation of Chi Shing. We do not think that the evidence from SWD could support the charges in the present case.", "zh-HK": "周法官在判決書提及社署的証供，但沒有清楚說明她是否依賴有關的証供。第二上訴人在原審時反對控方提出有關証供，但周法官裁定法庭是可以接納社署的証供。由於社署的職員沒有就志成向第二上訴人作出查詢，第二上訴人因此沒有向他披露志成的運作。本庭不認為社署的証供能支持本案的控罪。" } }, { "doc_id": 39, "seg_id": 52, "translation": { "en": "Mr. Lee, SC, submits on behalf of the 2nd appellant that the prejudicial effect of the relevant evidence on the 2nd appellant far outweighed its probative value. In light of our judgment that Judge Chow had failed to resolve the core question in the present case, it is not necessary for us to discuss the said submission any further.", "zh-HK": "代表第二上訴人的李柱銘資深大律師指，有關的証供對第二上訴人所產生的負面影響遠超於証供本身的實際成效。本庭認為周法官未能解決本案的核心問題，因此無須再就這點作出討論。" } }, { "doc_id": 39, "seg_id": 53, "translation": { "en": "Proviso", "zh-HK": "但書" } }, { "doc_id": 39, "seg_id": 54, "translation": { "en": "One of the matters being discussed at the appeal hearing was whether the verdict could be upheld by applying the proviso. The discussion turned on this question: even if Chi Shing was an agent, did the transaction in question still fail to constitute a substantial transaction from an objective point of view or from BoC’s point of view? However, there was no evidence from BoC in the case, and more importantly, the said discussion had nothing to do with the basis on which the prosecution at trial sought to hold the two appellants culpable. At trial, the prosecution completely denied any involvement of an agent in the transactions, and it was not the prosecution’s case that no genuine transaction existed even if Chi Shing was an agent. A defendant to a criminal prosecution will run his defence against the basis put forward by the prosecution in respect of the defendant’s culpability. If the prosecution wishes to rely on some other basis for holding the defendant culpable, it is incumbent upon the prosecution to make such a request to the court at trial so that the defence can respond as appropriate. In the present case, it is true that the prosecution could not possibly rely on the agency basis when the trial commenced because it came to be aware of the agency issue only when the appellant gave evidence. However, in any event, after the 1st appellant had given evidence in his defence, the prosecution still only relied on the basis that Chi Shing was not an agent in support of the argument that there was no substantial transaction between the two parties. To allow the prosecution to proceed with the hearing on another basis at this stage would be extremely unfair to the defence. Mr. Lee, Senior Assistant Director of Public Prosecutions for the respondent, has, in our view fairly and correctly, informed us that the prosecution will not on this basis invite us to apply the proviso.", "zh-HK": "在上訴聆訊時，其中一項議題是本庭可否引用但書來維持判決，有關的討論內容是即使志成是一名代理人，從客觀或者從中銀的角度有關的交易是否仍未能構成一項實質的交易呢 但本案欠缺中銀的証供，而更重要的是有關的討論並不涉及控方在原審時提出兩名上訴人需要負上刑責的理據。原審時控方的立場是全然否定交易中涉及代理人，而並不是即使志成是代理人本案仍不存在真實的交易。辯方在處理在刑事檢控的案件時是要根據控方就被告人的罪責所提出的理據來進行答辯。若控方欲依賴其他罪責為理據，他是有責任在審訊時向法庭提出要求，好讓辯方作出適當的回應。當然，本案的控方只是在上訴人作供時才獲悉代理人一事，因而沒法在開審時依賴另一理據；但無論如何，在第一上訴人作出答辯後，控方仍然只是依賴志成不是代理人來支持它認為雙方是沒有進行實質交易之說。若本庭在現階段批准控方以另一理由來進行聆訊，對辯方是極之不公平的。代表答辯人的李運騰高級助理刑事檢控專員向法庭表示辯方不會依賴這點來要求法庭使用但書。本庭認為這是一項公正及正確的立場。" } }, { "doc_id": 39, "seg_id": 55, "translation": { "en": "Appeal allowed", "zh-HK": "批准上訴" } }, { "doc_id": 39, "seg_id": 56, "translation": { "en": "For the above reasons, we allow the appeal of the two appellants.", "zh-HK": "基於上述原因，本庭裁定兩名上訴人的上訴得直。" } }, { "doc_id": 39, "seg_id": 57, "translation": { "en": "Re-trial", "zh-HK": "重審" } }, { "doc_id": 39, "seg_id": 58, "translation": { "en": "Mr. Lee has applied for re-trial.", "zh-HK": "李運騰大律師向法庭申請重審。" } }, { "doc_id": 39, "seg_id": 59, "translation": { "en": "At trial, after the 1st appellant had given evidence and explanations in respect of the charges, Counsel for the respondent at trial indicated to Judge Chow that she might apply to adduce rebuttal evidence, including evidence on BoC’s stance towards the 1st appellant regarding the transactions. It can be seen from the transcript that Counsel did not indicate specifically that she would take actual action regarding the application. Judge Chow therefore did not specifically rule on this point; she merely asked the parties whether they would make closing submissions if she refused the application. Closing submissions from both parties did not follow instantly but were adjourned by Judge Chow to another day. Had Counsel for the respondent indeed intended to adduce rebuttal evidence, she could still have adduced it at the resumed hearing. But she had not done so.", "zh-HK": "當第一上訴人在原審就控罪作供及作出辯解後，當時代表答辯人的律師曾經向周法官表示她可能會申請提出反駁証據，包括中銀對第一上訴人就有關的交易所持的立場。本庭從聆訊記錄中看到律師沒有明確表示她會就有關申請採取實際行動，周法官因此亦沒有就這點作出明確的裁決；周法官只是說若她拒絕這項申請，雙方是否會作出結案陳詞。雙方的結案陳詞並非是隨即進行，周法官是另訂日期讓雙方作出結案陳詞。若果答辯人的律師確實是想提出反駁証供，她仍然是有機會在案件恢復聆訊時提出的，但她沒有這樣做。" } }, { "doc_id": 39, "seg_id": 60, "translation": { "en": "In our judgment, having been made aware of the appellants’ defence, the respondent did have the opportunity to indicate to the court that the appellants were culpable on the relevant basis and to apply to adduce new evidence in support of its stance; but it did not take the opportunity to do so. An order for re-trial would in effect allow the respondent to bring a new prosecution on another basis. This, in our view, would be unfair to the appellants. We therefore refuse the application for re-trial.", "zh-HK": "本庭認為答辯人在獲悉上訴人的答辯理由後，若它當時向法庭表示上訴人須就有關理據負上刑責及提出新的証供來支持其立場的話，它是有機會這樣做的；但它沒有利用這個機會作出申請。若本庭批准重審，即是實質地給予答辯人以另一理據來提出一項新的檢控，本庭認為這對上訴人是不公平，因此拒絕重審申請。" } }, { "doc_id": 39, "seg_id": 61, "translation": { "en": "Costs order", "zh-HK": "訟費命令" } }, { "doc_id": 39, "seg_id": 62, "translation": { "en": "Mr. Lok, SC for the 1st appellant has applied for costs of the appeal on behalf of the 1st appellant. The 2nd appellant has made a similar application. As Mr. Lee has raised no objection to the applications, we order that both appellants be awarded costs of the appeal.", "zh-HK": "代表第一上訴人的駱應淦資深大律師申請第一上訴人的上訴訟費，第二上訴人亦作出同一申請。李運騰大律師不反對有關申請，故此本庭命令兩名上訴人可獲本上訴的訟費。" } }, { "doc_id": 39, "seg_id": 63, "translation": { "en": "We refuse the 2nd appellant’s application for costs of the trial for the following reason. The prosecution had adduced prima facie evidence against the 2nd appellant in respect of the fraudulent acts in which she was involved. She had elected to remain silent during the investigation in respect of her conduct in dealing with the 8 letters of credit. She certainly had the right of silence, but her attitude had brought suspicion upon herself. For this reason, notwithstanding the quashing of her conviction, we exercise our discretion and refuse to award the 2nd appellant costs of the trial.", "zh-HK": "本庭拒絕第二上訴人提出的原審訟費的申請，理由是控方已就第二上訴人涉及的欺詐行為提供了表面証供，第二上訴人在接受調查時選擇就她處理八次信用證的行為保持緘默，這當然是她的權利；但她所持的態度令人對她的行為產生懷疑，因此雖然她的定罪被撤銷，本庭仍行使酌情權，裁定第二上訴人不可獲判原審的訟費。" } }, { "doc_id": 39, "seg_id": 64, "translation": { "en": "Mr. Alex Lee, Senior Assistant Director of Public Prosecutions and Mr. Beney Wong, Senior Public Prosecutor, for the HKSAR.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員李運騰及高級檢控官黃志偉代表。" } }, { "doc_id": 39, "seg_id": 65, "translation": { "en": "Mr. Lawrence Lok, SC, Mr. Eric Kwok, SC and Ms. Vivian Ho, instructed by Simon C. W. Yung & Co., for the 1st Applicant.", "zh-HK": "第一申請人：由翁宗榮律師行轉聘駱應淦資深大律師，郭棟明資深大律師及何慧嫻大律師代表。" } }, { "doc_id": 39, "seg_id": 66, "translation": { "en": "Mr. Martin Lee, SC, Mr. Chase Pun and Mr. Joseph Lee, instructed by Howell & Co., for the 2nd Applicant.", "zh-HK": "第二申請人：由何和禮律師行轉聘李柱銘資深大律師，潘志明大律師及李祖詒大律師代表。" } }, { "doc_id": 40, "seg_id": 1, "translation": { "en": "Hon D Pang JA (giving the Reasons for Judgment of the Court):", "zh-HK": "上訴法庭法官彭偉昌頒發上訴法庭判案理由書：" } }, { "doc_id": 40, "seg_id": 2, "translation": { "en": "The applicant was convicted after trial of one count of “trafficking in a dangerous drug” involving 33.5 grammes of a crystalline solid containing 31.31 grammes of the dangerous drug “ice”. He was sentenced to 8 years and 5 months’ imprisonment by the trial judge (Joseph Yau J). The applicant sought leave to appeal against conviction.", "zh-HK": "申請人經審訊後被裁定一項‘販運危險藥物’罪成立，控罪涉及內含31.31克冰毒的33.5克晶狀固體，原審法官（邱智立法官）把他判囚8年5個月。申請人不服，就定罪提出上訴許可申請。" } }, { "doc_id": 40, "seg_id": 3, "translation": { "en": "The prosecution evidence", "zh-HK": "控方證據" } }, { "doc_id": 40, "seg_id": 4, "translation": { "en": "The prosecution only called three witnesses, namely Police Constable 12406 Chow Ka Wing (transliteration) (“PW1”), Woman Senior Inspector Cheung Ka Wai, Gloria (“PW2”) and Psychiatrist Mak Kai Lok, Gregory (“PW3”).", "zh-HK": "控方只傳召了三名證人。他們分別為警員12406周家榮（‘PW1’）、女高級督察張嘉慧（‘PW2’）和精神科醫生麥棨諾（‘PW3’）。" } }, { "doc_id": 40, "seg_id": 5, "translation": { "en": "In respect of the course of arrest of the applicant, PW1 gave evidence as follows:", "zh-HK": "PW1就拘捕申請人的過程作供如下：" } }, { "doc_id": 40, "seg_id": 6, "translation": { "en": "PW1 ... at 3:58 a.m. on 3 March 2016, (PW1) who was in plain clothes, together with several colleagues in uniform, patrolled Soy Street in Mong Kok. At that time, they were on the stretch of Soy Street between Portland Street and Shanghai Street. PW1 saw … the accused. At that time, the accused was talking on his mobile phone. He suddenly turned round and looked towards Shanghai Street. Then, all of a sudden, he went inside the building at 15 Soy Street. Feeling suspicious, PW1 followed him inside. In the lobby of the building, he produced his warrant card and revealed his police identity to the accused who was then still talking on his phone. And other police officers also went into the lobby of the building for reinforcement. As it was too cramped in the lobby, PW1 took the accused to the outside of the building where the accused was body searched by PC7901.", "zh-HK": "控方第一證人 ...... 喺2016年3月3日凌晨3點58分，自己著便裝，同埋幾個軍裝嘅同事一齊巡邏，去到旺角豉油街。佢哋當時喺豉油街，係介乎砵蘭街同埋上海街嗰一段嘅街道。控方第一證人見到 ...... 被告。當時被告人係講緊手提電話，佢突然轉身望向上海街，之後突然間就入咗去豉油街15號嘅大廈裡面。控方第一證人覺得可疑，於是就跟住入去。喺大廈大堂裡面，佢向被告人出示委任證同埋表明警察身分。當時被告人仍然講緊電話，而其他嘅警務人員亦都入到去大廈大堂度支援。因為大廈大堂太過窄，於是控方第一證人就將被告人帶出大廈出面，由警員7901向被告人進行搜身。" } }, { "doc_id": 40, "seg_id": 7, "translation": { "en": "PW1 witnessed the body search. He saw PC7901 found two transparent resealable plastic bags in the right front pocket of the trousers the accused was wearing. … which were the two plastic bags containing the “ice” in question …", "zh-HK": "控方第一證人見證住搜身，佢見到警員7901喺被告人所著嘅長褲嘅右前褲袋搵到兩個透明可再封口膠袋 ...... 就係呢兩個膠袋係裝住呢件案件裡面所指嘅『冰』......" } }, { "doc_id": 40, "seg_id": 8, "translation": { "en": "PW1 arrested and cautioned the accused for the offence of (simple) possession (i.e. possession of a dangerous drug). … Under caution, the accused said, “Those are dangerous drugs “ice”, which are for my own consumption.” After that, the accused was handcuffed by PW1 who eventually, together with other police officers, took the accused to the police station.", "zh-HK": "控方第一證人以藏毒（即係管有危險藥物）嘅罪名拘捕同埋警誡被告人 ...... 警誡之下，被告人話：『嗰啲係毒品「冰」，我自己食嘅。』之後，控方第一證人就用手扣鎖上被告人。最後同埋其他警務人員一齊就將被告人帶番去警署。" } }, { "doc_id": 40, "seg_id": 9, "translation": { "en": "After taking the accused to the duty officer of the police station for reporting and handling the relevant exhibits, PW1 conducted a body search of the accused and found on his person $1,500-odd in cash and two mobile phones. …”", "zh-HK": "喺帶同被告人向警署值日官報告同埋處理咗有關嘅證物之後，控方第一證人就向被告人進行搜身，喺被告人嘅身上面搵到1,500幾鈫嘅現金同埋兩個手提電話 ......」" } }, { "doc_id": 40, "seg_id": 10, "translation": { "en": "PW2 was attached to the Narcotics Bureau of the Police Force. Based on the information and her experience accumulated on the job, she gave the court an estimate of the street value of the dangerous drug in question at the time of the offence, i.e. “the lowest price was $278 per gramme and the highest price was $375 (per gramme), and thus the average price was $313 per gramme.”. She added that only when a client made a purchase of at least 200 to 300 grammes of the dangerous drug “ice” would the price be “lower”. She said that the “chance” of purchasing approximately 33 grammes of the dangerous drug “ice” for $2,400 (i.e. the amount the applicant claimed that he had paid) was “really slim”.", "zh-HK": "PW2隸屬警隊毒品調查科。她根據在工作中所累積的經驗和情報向法庭估算了涉案毒品在案發時的零售價值，即「每1克最低價係278元，最高價係375元，所以平均價係313元1克」。她補充，當事人要購買最少200至300克的冰毒，價格「先會平啲」。她說，要以2,400元購得約33克冰毒（即申請人聲稱自己所付出的價錢），「機會好微」。" } }, { "doc_id": 40, "seg_id": 11, "translation": { "en": "PW3 gave evidence on the average consumption rate of the dangerous drug “ice” only. In gist, PW3 said that studies in both Mainland China and Taiwan showed that the daily consumption rate of “ice” “ranged from 0.1 to 0.6 gramme. Thus, the median (consumption rate) was 0.3 gramme”. Therefore, “in accordance with the calculation based on this median, the 33.53 grammes of “ice” in question would last for 112 days”. PW3 further stressed that “by taking 1 gramme of “ice”, (the abuser) would not be able to go to work”, and that in the event of finishing off 30 grammes of ice in 30 days with a daily dose of 1 gramme (i.e. the applicant’s consumption rate as he claimed), “the abuser would have been admitted to hospital on the third day”.", "zh-HK": "PW3的證供只關乎冰毒的平均吸食量。扼要而言，PW3指大陸和台灣兩地的研究顯示，冰的每日吸食量「係由0.1至0.6克，所以個中位數係0.3克」。因此，「以呢個中位數嚟計算，喺呢件案件裡面嘅33.53克嘅冰係足夠服用112日」。PW3還進一步強調，「吸食1克嘅冰就返唔到工」，及如果要把30克冰毒一日一克地於30天內吸食完畢的話（即申請人自稱的用量），「吸食者第三日就已經入咗醫院」。" } }, { "doc_id": 40, "seg_id": 12, "translation": { "en": "The defence case", "zh-HK": "辯方案情" } }, { "doc_id": 40, "seg_id": 13, "translation": { "en": "The applicant did not give evidence or call any witnesses. He relied on the account he had put forward since the time of his arrest, namely the dangerous drug was purely for his own consumption. And for this reason, he did not object to the prosecution producing in evidence his subsequent cautioned video-recorded interview, the material contents of which are as follows: he had been consuming the dangerous drug “ice” for almost 10 years, with a daily consumption of 1 gramme or slightly over 1 gramme; he consumed (the substance) mostly in a toilet or at a friend’s home; the dangerous drug “ice” in question was purchased from a male “Ah Shing” (transliteration) who frequented Sai Yee Street Garden in Mong Kok; the time of the purchase was before the applicant’s arrest; the aggregate weight of the 2 packets of dangerous drug “ice” in question was 1 ounce plus 7 grammes; he purchased 2 packets at one go because the price would be lower; the actual amounts he had paid were $1,900 (for the larger packet) and $500 (for the smaller packet); this batch of dangerous drug ice would last him approximately a month; the applicant originally lived with his family in Tuen Mun, however, at the material time, he “slept from place to place”, including sauna bathhouses where he would visit for bathing; at the time of the arrest, he was at 15 Soy Street in Mong Kok simply because he wanted to go to a sauna bathhouse at the above location for bathing; the applicant was a “casual worker” by occupation, earning a daily wage of about $800, or $15,000 to $16,000 on a monthly basis.", "zh-HK": "申請人並無作供或傳召證人。他依賴他從被捕一刻已開始提出的說法，即毒品純粹是供他自用。亦由於這個原因，他不反對控方把他在其後的警誡錄影會面紀錄呈堂。該錄影會面的關鍵內容如下：他吸食冰毒已差不多十年，每日的用量是1克或稍多於1克；他吸食的地方大多為廁所或朋友的家；涉案冰毒是購自一名經常在旺角洗衣街公園出沒的男子「阿成」，購買的時間是申請人被捕之前；涉案兩包冰毒的總重量是1安士加7克，他一次購買兩包是因為價錢會比較便宜；他實際支付的金額是1,900元（大的一包）和500元（細的一包）；這批冰毒大約可供他吸食一個月；申請人原本和家人住在屯門，在相關時段則「周圍瞓」，地方包括他會去洗浴的桑拿浴室；他被捕時身處旺角豉油街15號就是因為他要到上址一間桑拿浴室洗浴；申請人的職業是「散工」，日薪約800元，一整月計算就是15,000至16,000元。" } }, { "doc_id": 40, "seg_id": 14, "translation": { "en": "The present appeal", "zh-HK": "是次上訴" } }, { "doc_id": 40, "seg_id": 15, "translation": { "en": "Mr Cheung, solicitor advocate representing the applicant only at the appeal stage, advanced three grounds of appeal. Upon “re-amendment”, ground (1) of the grounds of appeal complained that:", "zh-HK": "在上訴階段才代表申請人的張律師提出了三項上訴理由。經過‘再修訂’之後，該幾項上訴理由中的理由（1）投訴：" } }, { "doc_id": 40, "seg_id": 16, "translation": { "en": "In respect of expert evidence on the maximum daily dosage of the dangerous drug “ice”, it is found that there is additional expert evidence and other evidence which may negate or undermine the expert evidence relied upon by the prosecution in the present case, rendering the guilty verdict unsafe.”", "zh-HK": "就每日最高吸食冰毒劑量的專家證據，發現有額外的專家證據及其他證據可能會否定或削弱控方在本案所依賴的專家證供，令定罪的決定不穩妥。」" } }, { "doc_id": 40, "seg_id": 17, "translation": { "en": "The additional evidence that Mr Cheung referred to was primarily the ruling of the Court of First Instance rejecting the expert evidence on the same issue given by PW3 in HKSAR v McCall Howard Kenneth & Lam Aroon HCCC 446/2016 (27 October 2017), as well as the expert reports on the maximum daily dosage of the dangerous drug ice by four other psychiatrists or toxicologists. The said batch of expert reports prepared between March 2013 and March 2018 revealed that chronic “ice”-users in Hong Kong, in spite of the fact that they represented a relatively small proportion of the (total) number, could consume up to 1 gramme per day. Two of the reports even indicated (a daily consumption of) up to 2 grammes.", "zh-HK": "張律師所指的額外證據，主要是原訟法庭在HKSAR v McCall Howard Kenneth & Lam Aroon HCCC 446/2016（2017年10月27日）一案拒絕接納PW3就同一議題所作出的專家證據的判詞，以及由另外四名精神科醫生或毒理學家就冰毒最高日用劑量所曾作出的專家報告。該批書寫於2013年3月至2018年3月期間的專家報告顯示，雖然在人數上的比例較少，但本港長期冰毒服用者的每日吸食量可達到1克，其中兩份報告更指可達到2克。" } }, { "doc_id": 40, "seg_id": 18, "translation": { "en": "Given the extremely significant inconsistency between these conclusions and PW3’s evidence, the respondent took the position that they do not oppose leave being granted to the applicant and the appeal being allowed. As the maximum daily dosage of the dangerous drug “ice” is a piece of important circumstantial evidence which may serve the purpose of drawing inferences as to whether the dangerous drug in question was for self-consumption, this Court is of the view that the position of the respondent is fair and correct.", "zh-HK": "由於這些結論和PW3的證供有極大抵觸，答辯方的立場是他們不反對申請人應取得上訴許可和在上訴中得直。由於冰毒的最高日用劑量，是可用作推斷涉案毒品乃自用與否的重要環境證據，本庭認為答辯方的立場是公平和正確的。" } }, { "doc_id": 40, "seg_id": 19, "translation": { "en": "Whether there should be a retrial", "zh-HK": "重審與否" } }, { "doc_id": 40, "seg_id": 20, "translation": { "en": "Mr Cheung opposed the respondent’s application for a retrial. However, having heard the submissions from both parties, this Court considered that:", "zh-HK": "張律師反對答辯方要求重審的申請。不過，本庭在聽取過雙方陳詞之後認為：" } }, { "doc_id": 40, "seg_id": 21, "translation": { "en": "Regardless of the actual quantity of the dangerous drug in question, trafficking in a dangerous drug is in itself an extremely serious offence, which should not be let pass easily.", "zh-HK": "不論涉案毒品的實際數量多少，販毒本身就是一項極其嚴重的罪行，不容輕易放過。" } }, { "doc_id": 40, "seg_id": 22, "translation": { "en": "The prosecution evidence in the present case is not too flimsy. There is the possibility that the applicant may be convicted of trafficking in a dangerous drug at retrial.", "zh-HK": "控方在本案的證據並非過弱，申請人有在重審中被裁定販毒罪成的可能。" } }, { "doc_id": 40, "seg_id": 23, "translation": { "en": "The possibility that the applicant may eventually be acquitted of trafficking in a dangerous drug and the high risk that the term of imprisonment served would be longer than that for simple possession could be addressed by granting bail pending retrial.", "zh-HK": "申請人最終被裁定販毒罪不成立、但服過的刑期卻比單純管有罪的刑期高的風險，可由取得保釋等候重審的安排處理。" } }, { "doc_id": 40, "seg_id": 24, "translation": { "en": "Judgment", "zh-HK": "判決" } }, { "doc_id": 40, "seg_id": 25, "translation": { "en": "We grant the applicant leave to appeal against his conviction, allow the appeal and (order) the case to be remitted to the Court of First Instance for retrial. The applicant may be admitted to bail pending retrial on the conditions agreed upon during the hearing.", "zh-HK": "本庭批准申請人就他的定罪提出上訴，並裁定他的上訴得直，案件須發還原訟法庭重審。申請人可根據在聆訊時商定的條件取得保釋等候重審。" } }, { "doc_id": 40, "seg_id": 26, "translation": { "en": "Eric Cheung, Solicitor Advocate, and Lydia Leung, Barrister-at-law, instructed by ONC Lawyers, assigned by the Legal Aid Department, for the Applicant", "zh-HK": "申請人：由法律援助署委派柯伍陳律師事務所轉聘張達明訟辯律師及梁晴怡大律師代表" } }, { "doc_id": 40, "seg_id": 27, "translation": { "en": "Franco Kuan, Senior Public Prosecutor, of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級檢控官關百安先生代表" } }, { "doc_id": 41, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the judgment of the Court):", "zh-HK": "高等法院上訴法庭副庭長楊振權頒發上訴法庭判案書：" } }, { "doc_id": 41, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 41, "seg_id": 3, "translation": { "en": "At all material times the 1st respondent Chan Chi-wan, Stephen (“Chan”) was the General Manager (Broadcasting) of Television Broadcasts Limited (“TVB”), and the 2nd respondent Tseng Pei-kun (“Tseng”) was the sole director cum shareholder of Idea Empire Advertising & Production Company Limited (“IEAP”). Since IEAP’s incorporation in August 2008, it had business dealings with TVB, including entering into service agreements with TVB on behalf of outside bodies, so that those bodies could engage TVB artistes to participate in their business promotional activities.", "zh-HK": "在有關時段，第一答辯人陳志雲（陳）是電視廣播有限公司（無綫電視）的電視廣播業務總經理，第二答辯人叢培崑（叢）則是思潮廣告製作有限公司（思潮製作）的唯一董事兼股東。思潮製作在2008年8月成立後和無綫電視有業務往來，包括替一些外間機構和無綫電視訂立服務協議，令該些外間機構能聘用無綫電視藝員參與它們的業務推廣活動。" } }, { "doc_id": 41, "seg_id": 4, "translation": { "en": "This appeal arose from the following incident: Through IEAP, Chan accepted $112,000 from Olympian City, a shopping complex under the Sino Group, for his performance in a Be My Guest show (“the additional Be My Guest show”), which was a sideshow within a show organized by TVB for Olympian City for publicity purposes, called New Year’s Eve Countdown for 2010, which was to take place on 31 December 2009. The prosecution alleged that Chan accepted the $112,000 in contravention of section 9 of the Prevention of Bribery Ordinance, Cap 201 Laws of Hong Kong (“the Ordinance”), and Chan and Tseng were charged with one count of conspiracy for an agent to accept an advantage (charge 1). Chan and Tseng each faced one further charge alternative to charge 1; they were respectively agent accepting an advantage (charge 2) and offering an advantage to an agent (charge 3).", "zh-HK": "和本上訴有關的事項源自陳透過思潮製作收取了信和集團旗下購物商場奧海城（奧海城）的112,000元，作為演出由無綫電視在2009年12月31日為奧海城舉辦的宣傳活動（“奧海城全城狂歡邁向2010”）中附加的“志雲飯局”（“附加志雲飯局”）。控方指陳收取了112,000元一事，違反了香港法例第201章《防止賄賂條例》（《條例》）第9條，因此檢控陳和叢一項串謀使代理人接受利益罪（第一項），並以一項代理人接受利益罪（第二項）和一項向代理人提供利益罪（第三項）分別檢控陳和叢作為第一項控罪的交替控罪。" } }, { "doc_id": 41, "seg_id": 5, "translation": { "en": "In addition, Chan and Tseng were charged with one count of conspiracy to defraud (charge 5), and Tseng and Chan Wing-shuen, Wilson were charged with another conspiracy to defraud (charge 4).", "zh-HK": "控方亦指控陳和叢一項串謀欺詐罪（第五項）及叢和陳永孫另一項串謀欺詐罪（第四項）。" } }, { "doc_id": 41, "seg_id": 6, "translation": { "en": "Chan, Tseng and Chan Wing-shuen denied all the charges and were tried before Acting Chief District Judge (as he then was) Poon Siu-tung (“the trial judge”).", "zh-HK": "陳、叢和陳永孫都否認全部控罪，並在區域法院署理首席法官（當時官階）潘兆童（原審法官）席前受審。" } }, { "doc_id": 41, "seg_id": 7, "translation": { "en": "In respect of charges 1, 2 and 3, the position taken by Chan and Tseng was that when Chan participated in the New Year’s Eve Countdown for 2010 and performed in the additional Be My Guest show, he was not acting in the capacity of an agent of TVB. The reason was that the additional Be My Guest show was not related to TVB’s affairs or business. Both of them also stated that TVB had on many occasions granted Chan permission to accept remuneration for his participation in publicity activities of a similar nature, and so Chan had TVB’s permission to accept or acquiescence in accepting remuneration from Olympian City for his performance in the additional Be My Guest show. The defence put forward by Tseng was that he, not being an employee of TVB, had no knowledge of the details of the work and contractual arrangements between Chan and TVB. Neither Chan nor Tseng gave evidence, and they did not call any defence witness.", "zh-HK": "就第一、二和第三項控罪，陳和叢的立場是當陳參與“奧海城全城狂歡邁向2010”及演出“附加志雲飯局”時，他並非是以無綫電視代理人的身份行事，原因是“附加志雲飯局”和無綫電視的事務或業務無關。他們同時指無綫電視曾多次批准陳收取酬勞參與同類宣傳活動，因此陳是得到無綫電視的許可或默許就演出“附加志雲飯局”向奧海城收取酬金。叢提出的答辯是他並非無綫電視的職員，故不會了解陳和無綫電視的工作及合約細節。但陳和叢都沒有作供，亦沒有傳召任何辯方證人作供。" } }, { "doc_id": 41, "seg_id": 8, "translation": { "en": "On 2 September 2011, the trial judge acquitted Chan and Tseng of all charges. He dismissed the charges and ordered the Secretary for Justice (“the Secretary”), who represented the prosecution, to pay Chan’s and Tseng’s costs.", "zh-HK": "2011年9月2日，原審法官裁定陳和叢全部控罪罪名都不成立。原審法官撤銷所有控罪，並下令代表控方的律政司司長（司長）向陳和叢支付訟費。" } }, { "doc_id": 41, "seg_id": 9, "translation": { "en": "For charges 1, 2 and 3, the trial judge found that Chan was not acting as an agent of TVB when he performed in the additional Be My Guest show, that the additional Be My Guest show was not related to TVB’s affairs or business, and that therefore what Chan did was not caught by section 9 of the Ordinance. Moreover, the trial judge considered that even if Chan was acting in the capacity of an agent of TVB and the additional Be My Guest show was related to TVB’s business, TVB had either allowed Chan to accept the remuneration in question from Olympian City or acquiesced in his doing so. The trial judge found that, as Chan’s understanding was that TVB would definitely allow him to accept remuneration for his performance in the additional Be My Guest show, he would think that he had no duty to apply to his superior for permission, nor was it necessary to do so. The trial judge further found that both Chan and Tseng could rely on the defences provided in section 9 of the Ordinance, namely Chan had obtained TVB’s permission to accept $112,000 from Olympian City and/or he had lawful authority or reasonable excuse to accept the sum of money. Section 9 of the Ordinance provides that:", "zh-HK": "就第一、二和第三項控罪，原審法官認為陳演出“附加志雲飯局”時，並非是以無綫電視代理人的身份行事，而“附加志雲飯局”亦和無綫電視的事務或業務無關，因此陳不受《條例》第9條的規管。另外，原審法官認為即使陳是以無綫電視代理人的身份行事，而“附加志雲飯局”和無綫電視的業務有關，無綫電視是容許或默許陳收取有關酬金。原審法官裁定陳理解無綫電視必會批准他收取酬金參與演出“附加志雲飯局”，故他會認為自己無責任、亦無必要向上級申請批准。原審法官亦裁定陳和叢都可以依賴《條例》第9條列出的抗辯理由，即陳有無綫電視的“許可”向奧海城收取112,000元及/或他有“合法權限”或“合理辯解”收取該筆款項。《條例》第9條如下：" } }, { "doc_id": 41, "seg_id": 10, "translation": { "en": "“(1)Any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his —", "zh-HK": "(1)任何代理人無合法權限或合理辯解，索取或接受任何利益，作為他作出以下行為的誘因或報酬，或由於他作出以下行為而索取或接受任何利益，即屬犯罪─" } }, { "doc_id": 41, "seg_id": 11, "translation": { "en": "(a)doing or forbearing to do, or having done or forborne to do, any act in relation to his principal's affairs or business; or", "zh-HK": "(a)作出或不作出，或曾經作出或不作出任何與其主事人的事務或業務有關的作為；或" } }, { "doc_id": 41, "seg_id": 12, "translation": { "en": "(b)showing or forbearing to show, or having shown or forborne to show, favour or disfavour to any person in relation to his principal's affairs or business, shall be guilty of an offence.", "zh-HK": "(b)在與其主事人的事務或業務有關的事上對任何人予以或不予，或曾經予以或不予優待或虧待。" } }, { "doc_id": 41, "seg_id": 13, "translation": { "en": "… …", "zh-HK": "… …" } }, { "doc_id": 41, "seg_id": 14, "translation": { "en": "(4)If an agent solicits or accepts an advantage with the permission of his principal, being permission which complies with subsection (5), neither he nor the person who offered the advantage shall be guilty of an offence under subsection (1) or (2).", "zh-HK": "(4)代理人如有其主事人的許可而索取或接受任何利益，而該項許可符合第(5)款的規定，則該代理人及提供該利益的人均不算犯第(1)或(2)款所訂罪行。" } }, { "doc_id": 41, "seg_id": 15, "translation": { "en": "(5)For the purposes of subsection (4) permission shall —", "zh-HK": "(5)就第(4)款而言，該許可─" } }, { "doc_id": 41, "seg_id": 16, "translation": { "en": "(a)be given before the advantage is offered, solicited or accepted; or", "zh-HK": "(a)須在提供、索取或接受該利益之前給予；或" } }, { "doc_id": 41, "seg_id": 17, "translation": { "en": "(b)in any case where an advantage has been offered or accepted without prior permission, be applied for and given as soon as reasonably possible after such offer or acceptance,", "zh-HK": "(b)在該利益未經事先許可而已提供或接受的情況下，須於該利益提供或接受之後在合理可能範圍內盡早申請及給予，" } }, { "doc_id": 41, "seg_id": 18, "translation": { "en": "and for such permission to be effective for the purposes of subsection (4), the principal shall, before giving such permission, have regard to the circumstances in which it is sought. ”", "zh-HK": "同時，主事人在給予該許可之前須顧及申請的有關情況，該許可方具有第(4)款所訂效力。" } }, { "doc_id": 41, "seg_id": 19, "translation": { "en": "The Secretary was dissatisfied with the verdicts of not guilty given by the trial judge in favour of Chan and Tseng in respect of charges 1 to 3 and appealed by way of case stated pursuant to section 84 of the District Court Ordinance.", "zh-HK": "司長不服原審法官裁定陳和叢第一至第三項控罪罪名都不成立的裁決，並根據《區域法院條例》第84條以“案件呈述”方式提出上訴。" } }, { "doc_id": 41, "seg_id": 20, "translation": { "en": "This Court handed down judgment on 21 November 2012. The Secretary’s appeal was allowed, the verdicts of not guilty given by the trial judge in favour of Chan and Tseng in respect of charges 1 to 3 were set aside.", "zh-HK": "2012年11月21日，上訴法庭頒下判案書，裁定司長的上訴得直。上訴法庭撤銷原審法官裁定陳和叢第一至第三項控罪無罪的決定。" } }, { "doc_id": 41, "seg_id": 21, "translation": { "en": "This Court found that the additional Be My Guest show was related to TVB’s business, and that when Chan accepted the $112,000 and when he performed in the additional Be My Guest show, he was acting in his capacity as an agent of TVB. This Court also found that Chan did not have any permission recognized by the Ordinance or any lawful authority for accepting the said remuneration.", "zh-HK": "上訴法庭裁定“附加志雲飯局”和無綫電視的業務有關，而陳收取112,000元演出“附加志雲飯局”時是以無綫電視的代理人身份行事。上訴法庭亦裁定陳未獲得《條例》認可的“許可”，亦沒有“合法權限”收取該酬金。" } }, { "doc_id": 41, "seg_id": 22, "translation": { "en": "This Court considered that the only issue that remained was whether Chan’s act of accepting the $112,000 could be supported by the defence of reasonable excuse. At the trial, the trial judge did not set out all the evidence which could support the defence of reasonable excuse. This Court took the view that the fair way to deal with the matter was to remit the case to the trial judge for him to decide whether Chan and Tseng should be allowed to raise the defence of reasonable excuse afresh, and if he allowed them to do so, he had to set out the factual elements pertaining to the defence and, on the basis of such factual elements, make a finding as to whether the defence of reasonable excuse was established. At the same time, this Court ordered that the issue of costs was to be dealt with after the trial judge had given his verdicts.", "zh-HK": "上訴法庭認為案件餘下的唯一爭議點是陳收取112,000元一事能否受“合理辯解”的答辯理由支持。原審時，原審法官沒有將能支持“合理辯解”這答辯理由的證據全部列出。上訴法庭認為公平的做法是將案件發還原審法官由他決定是否會批准陳和叢重新提出“合理辯解”這答辯理由及如他批准的話，原審法官需要列出和該答辯理由有關的事實因素，並根據該些事實因素來裁定“合理辯解”這答辯理由能否成立。上訴法庭同時下令訟費議題要等候原審法官作出裁決後再作處理。" } }, { "doc_id": 41, "seg_id": 23, "translation": { "en": "The background of this case, the issues arising therefrom and how they were dealt with were set out in the judgment handed down by this Court on 21 November 2012, and they will not be repeated here.", "zh-HK": "案件的背景和其引發的議題及處理方法已在上訴法庭於2012年11月21日頒下的判案書中詳細列出，故不再贅述。" } }, { "doc_id": 41, "seg_id": 24, "translation": { "en": "The trial judge resumed the trial of the case on 20 and 21 February 2013 in accordance with the directions given by this Court. No fresh evidence was adduced by any party during the resumed trial. Chan relied on the following inferences drawn by the trial judge to support his defence that he had a reasonable excuse:", "zh-HK": "2013年2月20日至21日，原審法官按上訴法庭的指示續審案件。雙方在續審時都沒有再提交任何新證據。陳引用原審法官作出的以下推論來支持他有“合理辯解”的答辯理由：" } }, { "doc_id": 41, "seg_id": 25, "translation": { "en": "TVB knowingly allowed Olympian City to approach Chan and TVB would not be so naive as to think that Olympian City could successfully invite Chan to perform without having to pay him anything. In other words, TVB allowed Chan to accept the $112,000 from Olympian City as remuneration for his performance; and", "zh-HK": "無綫電視知道及容許奧海城接觸陳，而無綫電視是不會天真地認為奧海城無須向陳支付分文便能成功邀請到他。換句話說無綫電視是容許陳從奧海城處收取112,000元作表演酬金的；及" } }, { "doc_id": 41, "seg_id": 26, "translation": { "en": "Chan had no reason whatsoever to suspect that TVB might decline to allow him to accept the remuneration, and the reason why Chan did not apply to his superior for permission was that he thought he had no duty or did not need to do so.", "zh-HK": "陳沒有任何理由會懷疑無綫電視會不批准他收受酬金，而陳不向上級申請批准，原因是他以為沒有責任或沒有需要提出申請。" } }, { "doc_id": 41, "seg_id": 27, "translation": { "en": "Tseng’s position was that the defence of reasonable excuse invoked by Chan was also applicable to him. Another argument advanced by Tseng was that if he honestly believed that Chan had obtained TVB’s permission for accepting the remuneration, he could rely on the defence of reasonable excuse.", "zh-HK": "叢的立場是陳提出的“合理辯解”這答辯理由對他亦適用。叢的另一立場是如他真誠地相信陳有獲得無綫電視的“許可”收取報酬，他是可以依賴“合理辯解”這答辯理由的。" } }, { "doc_id": 41, "seg_id": 28, "translation": { "en": "On 7 March 2013 the trial judge handed down his Reasons for Verdict of the resumed trial. He again dismissed charges 1 to 3, which were against Chan and Tseng.", "zh-HK": "2013年3月7日，原審法官頒下續審裁決理由書，再次撤銷針對陳和叢的第一至第三項控罪。" } }, { "doc_id": 41, "seg_id": 29, "translation": { "en": "The trial judge took the view that the scope of the defence of reasonable excuse was wider than that of the defence of lawful authority, and that its purpose was to make up for the deficiency in the defence of lawful authority. The trial judge quoted the following comment on p 288 of Bribery and Corruption Law in Hong Kong, 2nd Edition:", "zh-HK": "原審法官認為“合理辯解”這答辯理由的涵蓋面比“合法權限”這答辯理由廣闊，目的是以彌補“合法權限”作為辯護理由的不足之處。原審法官援引“Bribery and Corruption Law in Hong Kong” 2nd Edition, p 288的以下觀察：" } }, { "doc_id": 41, "seg_id": 30, "translation": { "en": "The trial judge considered that it was reasonable for Chan to accept $112,000 for his performance in the additional Be My Guest show, and that it was also reasonable for him to agree to perform in that programme. The trial judge remarked that although according to the employment contract between Chan and TVB, Chan was duty bound to apply to his superior if he wanted to engage in any outside work, it was not specified in the contract to whom he should apply for obtaining permission and all along the way he communicated with Chan Ching-cheong and Lee Po-on, both of them were members of TVB’s senior management, was to “inform” them of relevant matters. The trial judge pointed out that the senior management of TVB had never required Chan to make any formal application and had never made any formal reply to his “informing” them, nor had they sent the “information” or applications to the personnel department for record. The trial judge emphasized that starting from May 2009, on a total of 7 occasions Chan had taken up outside work for which he was paid and about which he had not informed TVB. The trial judge considered that TVB could easily learn about such outside work from the media, but that TVB had never taken exception to that, nor had TVB indicated to Chan that they objected to or were concerned about his engagement in paid outside work.", "zh-HK": "原審法官認為陳收取112,000元演出“附加志雲飯局”是合理的，而他答應演出該節目亦是合理的。原審法官指出雖然根據陳和無綫電視簽署的僱傭合約，他有責任向上級申請從事外間工作，但合約上並沒有列明他要向誰人申請以取得許可，而他一直以來都是以“知會”方法和無綫電視高層陳禎祥和李寶安溝通。原審法官指出無綫電視高層從沒有要求陳作出正式申請，亦沒有就他的“知會”作出任何正式的回覆，更沒有將有關“知會”或申請交付人事部存檔。原審法官強調，自2009年5月開始，陳一共接受過7次收費的外間工作，但他都沒有知會無綫電視。原審法官認為無綫電視的高層很容易從傳媒方面得知該些外間工作，但無綫電視從來沒有提出過異議，更沒有向陳表示過會反對或關注他從事外間工作而收取費用。" } }, { "doc_id": 41, "seg_id": 31, "translation": { "en": "At the resumed trial, the trial judge made further findings of facts and drew further inferences as follows:", "zh-HK": "原審法官在續審時作出以下額外事實裁定及推定：" } }, { "doc_id": 41, "seg_id": 32, "translation": { "en": "Chan did not make use of the powers arising from his office to seek any reward, or to give any person any benefit, favour or convenience. The mistake that Chan committed or what he failed to do was just that he did not follow the procedures prescribed in the employment contract to apply to his superior for approval of his undertaking outside work and accepting remuneration for such work. There was no dishonesty on the part of Chan in the course of these events.", "zh-HK": "陳沒有藉職權以謀取報酬，或是因此而給予任何人利益、優待或方便。陳所做錯的或沒有做到的，是沒有根據僱傭合約向上級申請接受外間工作和收取他工作所得的報酬而已。而當中陳亦沒有任何不誠實的地方。" } }, { "doc_id": 41, "seg_id": 33, "translation": { "en": "Chan had never deliberately hidden the fact that he had taken up outside work and had accepted remuneration. Actually, he did not need to hide this matter at all. Therefore, the $112,000 which he accepted could not be said to be secret commission or secret reward.", "zh-HK": "陳根本沒有刻意隱瞞他接受了外間工作和收取了報酬。而實際上，他也沒有任何需要隱瞞此事的必要。因此，陳收取的112,000元，不可以說得上是甚麼的秘密回佣或是秘密報酬。" } }, { "doc_id": 41, "seg_id": 34, "translation": { "en": "Chan’s acceptance of Olympian City’s invitation to perform in the additional Be My Guest show had always been in the open, and Olympian City approached him by going through the usual procedure, ie through his manager company IEAP. Different departments of TVB were involved in the production of the programme, and the programme had been discussed during meetings held by high ranking officers of different departments. In the end, the programme was broadcast by TVB. This shows that nobody had ever considered that this matter could be some sort of secret, or had ever attempted to hide it.", "zh-HK": "陳接受奧海城邀請演出“附加志雲飯局”此事一直是公開的，而奧海城亦是經過一般程序，即是經過他的經理人公司思潮製作以接洽他的。節目製作過程中，牽涉了無綫電視的不同部門，而節目亦在跨部門高層會議中作過討論，最後於無綫電視播出。這顯示，從來都沒有人認為這可以是甚麼秘密，或會企圖將此事隱瞞。" } }, { "doc_id": 41, "seg_id": 35, "translation": { "en": "The cooperation between TVB and Olympian City was a proper transaction, and so was the cooperation between Olympian City, IEAP and Chan. Throughout the incident, Chan had never acted in any way dishonestly, nor had he any improper intention and he had never deliberately held back anything from any person. Everyone from the top to the bottom of TVB knew that Chan would take part in the performance, and his performance would do no harm but good to TVB. His performance and acceptance of the remuneration did not conflict with any interest of TVB. There was no reason at all why TVB would object to his acceptance of the remuneration for his performance .", "zh-HK": "無綫電視和奧海城合作是正當交易，奧海城和思潮製作及陳的合作也是正當交易。陳在整件事中沒有任何不誠實的地方或其他不當的意圖，亦沒有對任何人刻意隱瞞。無綫電視的上上下下也知道陳會參與演出，而陳的演出對無綫電視只會有利而無害，他的演出和收取報酬更與無綫電視沒有任何利益衝突，完全沒有理由，無綫電視會反對他收取報酬而演出。" } }, { "doc_id": 41, "seg_id": 36, "translation": { "en": "The Court of Appeal’s message was that it was not sufficient to prove that Chan had lawful authority or reasonable excuse by solely relying on the fact that he had the principal’s acquiescence. However, as far as reasonable excuse is concerned, the Court of Appeal did not say that in considering the issue of whether Chan had a reasonable excuse, the fact that the principal had granted acquiescence could not be taken into account.", "zh-HK": "上訴法庭所表達的，是陳不能單單依靠他已經得到了主事人的“默許”，便足以證明他有「合法權限」或「合理辯解」。但是，就「合理辯解」來說，上訴法庭沒有說明在考慮陳是否有「合理辯解」這議題時，是不能考慮主事人已經給予了“默許”這一環節的。" } }, { "doc_id": 41, "seg_id": 37, "translation": { "en": "As for Chan’s acceptance of the remuneration, simply no one would expect that Chan would perform in the additional Be My Guest show for free. The understanding reached between TVB and Olympian City was that the contractual price of $1,300,000 did not cover a guarantee provided by TVB that Chan would perform in the programme, and for this reason it became necessary for Olympian City themselves to invite him to perform in it. It may well be asked: In this commercial transaction, what else could it mean other than Chan’s performing fee was to be paid by Olympian City? If any party thought that Chan would agree to perform free of charge, then why is it that no one suggested that TVB should make the invitation directly, so that Olympian City would have no need to take all the trouble to contact Chan through IEAP? Moreover, IEAP was a manager company; how could anyone expect that it would provide service for Olympian City free of charge?", "zh-HK": "有關收取報酬方面，根本上沒有人會認為陳演出這“附加志雲飯局”是會不收取酬勞的。無綫電視和奧海城的理解是，合約金額130萬元並不包括無綫電視須保證陳演出該節目，而亦因此而需要奧海城自行去邀請他演出。試問在這商業交易之中，這除了是代表陳的演出費用要由奧海城一方負責之外，還可以是代表甚麼？倘若有任何一方認為陳會答允免費演出，為何沒有人提出不如直接由無綫電視方面作出邀請，而用不著那麼費時失事，要奧海城經思潮製作聯絡陳？再者，思潮製作是一間經理人公司，試問又怎能期望它會免費為奧海城提供服務？" } }, { "doc_id": 41, "seg_id": 38, "translation": { "en": "From this it can be seen that Chan’s acceptance of the remuneration could not possibly be a secret. Could it be said that Chan would expect that something which everybody knew would nevertheless never get into the ears of Lee Po-on and so he intentionally refrained from reporting it to Lee Po-on or making the application? When compared with Chan’s income and the remuneration he received on previous occasions for his outside work, $112,000 was not a particularly high figure. Under such circumstances, why should Chan take any risk and deliberately hide it from Lee Po-on?", "zh-HK": "由此可見，陳收取報酬此事根本不可能是秘密。難道陳會期望，這些人所共知的事實，必定不會傳到李寶安的耳中，而故意不向李寶安報告或作出申請？相比於陳的收入和過往他就外間工作收取的酬金，112,000元並不是特別高的數目，又有甚麼理由，陳需要冒險在這情況之下刻意隱瞞李寶安？" } }, { "doc_id": 41, "seg_id": 39, "translation": { "en": "Between June 2008 and January 2010, Chan engaged in outside work 20 odd times. He received remuneration 18 times, out of which he informed his immediate superior 9 times (or as stated by the prosecution, he applied to his superior). On one occasion in April 2009 he received a total of $410,000 for performing in a theatrical version of Be My Guest. At that time his superior Chan Ching-cheong did not raise any objection.", "zh-HK": "2008年6月至2010年1月期間，陳曾參與過20多次的外間工作，有18次收取了報酬，而當中有9次是知會了他的直屬上司的（或如控方所指，有向上級申請的）。2009年4月的一次，他收取了總共410,000元以演出「志雲飯局」舞台版，他當時的上司陳禎祥也是沒有表示反對的。" } }, { "doc_id": 41, "seg_id": 40, "translation": { "en": "Starting from as early as 2008, Chan’s notifications or applications concerning his outside work had not been subject to TVB’s formal internal approval procedures. According to TVB’s internal guidelines, relevant documents about such approval had to be sent to the personnel department for record. However, neither Chan Ching-cheong nor Lee Po-on had ever sent documents of this nature to the personnel department for record. One may well imagine that all along neither of the two parties had taken the so-called approval procedures for undertaking outside work too seriously.", "zh-HK": "早於2008年開始，陳接受外間工作的通知或申請，已沒有依照無綫電視內部的正式程序批核。根據無綫電視的內部指引，相關的批核文件是必須送到人事部存檔的，而不論是陳禎祥或是李寶安，都從來沒有把類似的文件送往人事部存檔。可想而知，雙方對於這所謂接受外間工作的批核，一直都不是怎麼的認真處理。" } }, { "doc_id": 41, "seg_id": 41, "translation": { "en": "Chan’s superiors (including Lee Po-on) had never indicated any objection to Chan’s taking up outside work and accepting remuneration for such work. His performance in the additional Be My Guest show for Olympian City and TVB would only be beneficial to TVB and would caused TVB no harm. For what reason would Chan deliberately conceal it from them?", "zh-HK": "陳接受外間工作和就工作收取報酬，他的上司（包括李寶安）是從來沒有表示過反對的。就為奧海城和無綫電視演出“附加志雲飯局”而言，對於無綫電視來說，只會是有益而無害，又會有甚麼理由，陳需要刻意隱瞞？" } }, { "doc_id": 41, "seg_id": 42, "translation": { "en": "Lee Po-on did say in his evidence that supposing Chan applied to him at that time, he would not approve it, but he did not provide any reasonable ground to support his supposition. This statement given by him is completely contrary to common sense and illogical. Furthermore, there is no ground to support the argument that at the material time Chan could expect that in circumstances from which TVB would be benefited, not harmed, Lee Po-on would on that single occasion object to his performing in the show and accepting remuneration for it, and so he needed to deliberately hide it from Lee Po-on.", "zh-HK": "雖然李寶安曾經在作供時說若當時陳向他申請他也不會答應。但是，他卻沒有提出任何合理理由支持他的假設。李寶安這說法完全是有違常理和不合邏輯的。再者，亦沒有任何理據支持，陳於當時便能預測到，在對無綫電視有益而無害的情況之下，李寶安會單單在這次反對他的演出和收取報酬，而因而需要刻意向李寶安隱瞞此事。" } }, { "doc_id": 41, "seg_id": 43, "translation": { "en": "Besides finding that Chan had TVB’s acquiescence in accepting the $112,000 involved in this case, the trial judge further held that Chan could rely on the defence of reasonable excuse provided in section 9(1)(a) of the Ordinance on the basis of the following findings of fact:", "zh-HK": "除了裁定陳有得到無綫電視的“默許”收取涉案的112,000元外，原審法官亦基於以下事實裁定認定陳可以依賴《條例》第9(1)(a)條列明的“合理辯解”這答辯理由：" } }, { "doc_id": 41, "seg_id": 44, "translation": { "en": "“Chan’s and TVB’s way of handling and attitude towards outside work in the past", "zh-HK": "“就陳及無綫電視過往就外間工作的處理方法與態度" } }, { "doc_id": 41, "seg_id": 45, "translation": { "en": "It can be gleaned from the mode of communication used between Chan and his superiors in respect of outside work in the past that at least starting from 2008, Chan, on his part, communicated by way of informing his superiors, rather than making applications. Although according to the employment contract, Chan still had the duty to apply to his superiors, it was not specified in the employment contract or any other internal document of TVB to whom he, being a general manager, should make such application.", "zh-HK": "從過往陳與上級就外間工作的溝通模式可見，至少自2008年開始，陳一方已經採用了知會上級的方式，而並非申請。雖然僱傭合約上陳仍然是有責任向上級申請的，但僱傭合約或任何其他無綫電視的內部文件都沒有寫明作為總經理的他應該向何人申請。" } }, { "doc_id": 41, "seg_id": 46, "translation": { "en": "Furthermore, starting from May 2009, there were 7 occasions on which Chan engaged in paid outside work but about which he did not inform his superiors. Such outside work included to attend opening ceremonies of shops which provided luxurious goods and/or services, and to attend celebrating activities of banks, insurance companies and motor car companies. TVB and Chan’s superiors could easily learn about such activities from the media. It is hard to imagine that if TVB required Chan to apply for permission each time he wanted to take up outside work, they would allow him to go on behaving in this way without showing him their objection or concern.", "zh-HK": "再者，由2009年5月開始，陳有7次收費的外間工作，陳都是沒有知會上級的。這些外間工作，包括出席名店的新店開幕，銀行、保險、和汽車公司的慶祝活動等，無綫電視和他的上級都是很容易可以從傳媒等各方面得知的。難以想像的是，倘若無綫電視是要求陳每次接受外間工作都申請批准的話，會讓這種情況一直發生，而不向陳表示反對或關注。" } }, { "doc_id": 41, "seg_id": 47, "translation": { "en": "Whether there was conflict of interest between Chan and TVB", "zh-HK": "陳及無綫電視是否存在利益衝突" } }, { "doc_id": 41, "seg_id": 48, "translation": { "en": "There was no conflict of interest between Chan and TVB in respect of Chan’s acceptance of the remuneration for his performance for Olympia City in the additional Be My Guest show, which was part of the countdown activities. In fact, it can be said that they had a common interest.", "zh-HK": "陳及無綫電視就陳收取報酬替奧海城演出該倒數活動中的“附加志雲飯局”是沒有利益衝突的，其實可以說得上是有共同利益。" } }, { "doc_id": 41, "seg_id": 49, "translation": { "en": "Chan’s performance would not do any harm but only good to TVB. His performance in the show and his acceptance of the remuneration did not give rise to any conflict of interest between he and TVB. There was no reason at all that TVB would object to his accepting the remuneration for his performance.", "zh-HK": "而陳的演出對無綫電視只會有利而無害，他的演出和收取報酬更與無綫電視沒有任何利益衝突，完全沒有理由，無綫電視會反對他收取報酬而演出。" } }, { "doc_id": 41, "seg_id": 50, "translation": { "en": "It is impossible that TVB did not know Chan accepted remuneration for attending the activities", "zh-HK": "無綫電視不可能不知道陳是收報酬出席活動" } }, { "doc_id": 41, "seg_id": 51, "translation": { "en": "Everyone in TVB, from the top to the bottom, knew that Chan would take part in the performance.", "zh-HK": "無綫電視的上上下下也知道陳會參與演出。" } }, { "doc_id": 41, "seg_id": 52, "translation": { "en": "TVB, being one of the bodies which organized the activities, cannot say they did not know that Olympian City would invite Chan to perform in the programme and that Olympian City would pay him.", "zh-HK": "作為其中一個主辦單位，無綫電視不能說它不知道奧海城會邀請陳演出該節目，而奧海城是會給予報酬的。" } }, { "doc_id": 41, "seg_id": 53, "translation": { "en": "As far as remuneration is concerned, since there was no manager contract entered into between Chan and TVB and Chan just made use of his time after work to earn the remuneration, TVB was not entitled to draw any commission from it, nor did they have any say in determining the amount. If TVB was interested in knowing how much the remuneration was and if they asked Chan or Olympian City about it, there is no reason to believe that they would refuse to provide the answer.", "zh-HK": "就酬金方面，因為陳與無綫電視之間沒有經理人合約，陳利用工餘時間賺取酬勞，無綫電視是無權從中抽取分文，或過問數額的。若無綫電視是有興趣知道酬金的數目而詢問陳或奧海城的話，亦沒有理由相信他們是會拒絕提供的。" } }, { "doc_id": 41, "seg_id": 54, "translation": { "en": "Chan did not act in any way dishonestly nor did he have any improper intention", "zh-HK": "陳並沒有不誠實的地方或其他不當的意圖" } }, { "doc_id": 41, "seg_id": 55, "translation": { "en": "The cooperation between TVB and Olympian City was a proper transaction, so was the cooperation between Olympian City, IEAP and Chan. Throughout the incident, Chan had never acted in any way dishonestly, nor had he any improper intention and he had never deliberately hidden anything from any person.”", "zh-HK": "無綫電視和奧海城合作是正當交易，奧海城和思潮製作及陳的合作也是正當交易。陳在整件事中沒有任何不誠實的地方或其他不當的意圖，亦沒有對任何人刻意隱瞞。”" } }, { "doc_id": 41, "seg_id": 56, "translation": { "en": "The trial judge concluded that at the material time Chan definitely or, at least, probably honestly believed that he was entitled to accept the remuneration of $112,000 from Olympian City for his performance in the additional Be My Guest show and that it was not necessary for him to apply to TVB for permission beforehand.", "zh-HK": "原審法官認定陳在案發時必然是，或起碼較有可能是誠實地認為他是有權為他演出的“附加志雲飯局”，向奧海城收取涉案的112,000元酬金，而無必要向無綫電視事先申請許可。" } }, { "doc_id": 41, "seg_id": 57, "translation": { "en": "In the end, the trial judge found that Chan had a reasonable excuse in relation to his act of accepting the $112,000 as remuneration for his performance in the additional Be My Guest show and that the defence was also applicable to Tseng; therefore he once again cleared Chan and Tseng of all charges.", "zh-HK": "最終原審法官裁定陳就演出“附加志雲飯局”收取112,000元酬金的行為有“合理辯解”，而該答辯理由適用於叢，因此原審法官再裁定陳和叢全部罪名都不成立。" } }, { "doc_id": 41, "seg_id": 58, "translation": { "en": "Chan and Tseng did not ask for costs in respect of charges 1 to 3, but they asked for an order that costs of charges 4 and 5 be paid by the prosecution.", "zh-HK": "陳和叢沒有就第一至第三項控罪申請訟費，但要求控方支付第四和第五項控罪的訟費。" } }, { "doc_id": 41, "seg_id": 59, "translation": { "en": "The Secretary considered that the trial judge committed errors in relation to legal points involved in this case, and he appealed again by way of case stated pursuant to section 84 of the District Court Ordinance. The Secretary asks this Court to set aside the verdicts of not guilty. He also appeals against the costs order made by the trial judge and asked this Court to set aside the order.", "zh-HK": "司長認為原審法官就涉案的法律觀點犯錯，故根據《區域法院條例》第84條以“案件呈述”方式再提出上訴。司長要求本庭撤銷原審法官的無罪裁決，並同時就原審法官作出的訟費判令，提出上訴。司長要求本庭撤銷該訟費判令。" } }, { "doc_id": 41, "seg_id": 60, "translation": { "en": "In this appeal which is again proceeded by way of case stated, the Secretary asked for this Court’s opinion of the following questions:", "zh-HK": "司長再提出的“案件呈述”是要求本庭就以下法律問題表達意見：" } }, { "doc_id": 41, "seg_id": 61, "translation": { "en": "Question [1]:Did I (the trial judge) make the following findings of fact or draw the following inferences without any evidential support", "zh-HK": "問題[1]：本席（原審法官）是否在沒有證據支持下作出以下的事實裁斷或推定" } }, { "doc_id": 41, "seg_id": 62, "translation": { "en": "TVB cannot say they did not know that Olympian City would pay Chan remuneration", "zh-HK": "無綫電視不能說它不知道奧海城會給予陳報酬" } }, { "doc_id": 41, "seg_id": 63, "translation": { "en": "TVB acquiesced in Chan’s acceptance of remuneration paid by a third party for his performance in the additional Be My Guest show in the countdown programme?", "zh-HK": "無綫電視默許了陳就演出該倒數節目內的“附加志雲飯局”收取第三者給予的報酬" } }, { "doc_id": 41, "seg_id": 64, "translation": { "en": "Question [2]:In finding that Chan and Tseng had a reasonable excuse, did I erroneously take into account the following factors", "zh-HK": "問題[2]：本席裁定陳及叢有合理辯解時錯誤地考慮以下各項因素" } }, { "doc_id": 41, "seg_id": 65, "translation": { "en": "Chan did not have any dishonest intent", "zh-HK": "陳沒有不誠實意圖" } }, { "doc_id": 41, "seg_id": 66, "translation": { "en": "The mistake that Chan committed or that which he failed to do was only that he had not made an application to his superior/principal", "zh-HK": "陳所做錯的或沒有做到的，只是沒有向上級/主事人申請" } }, { "doc_id": 41, "seg_id": 67, "translation": { "en": "There was no conflict of interest between Chan and TVB", "zh-HK": "陳與無綫電視並沒有任何利益衝突" } }, { "doc_id": 41, "seg_id": 68, "translation": { "en": "Chan did not deliberately conceal the fact that he accepted the remuneration?", "zh-HK": "陳沒有刻意隱瞞收受報酬" } }, { "doc_id": 41, "seg_id": 69, "translation": { "en": "Question [3]:In finding that Chan and Tseng had a reasonable excuse, did I fail to take into account the following factors", "zh-HK": "問題[3]：本席裁定陳及叢有合理辯解時沒有考慮以下各項" } }, { "doc_id": 41, "seg_id": 70, "translation": { "en": "Chan did not make any disclosure to his principal", "zh-HK": "陳沒有向其主事人作出披露" } }, { "doc_id": 41, "seg_id": 71, "translation": { "en": "Chan’s performance in the additional Be My Guest show in the countdown programme was an act done in relation to his principal’s affairs or business and, as such, it was not outside work?", "zh-HK": "陳演出該倒數節目內的“附加志雲飯局”是與其主事人的事務或業務有關，而不是外間工作" } }, { "doc_id": 41, "seg_id": 72, "translation": { "en": "Question [4]:Is my finding that Chan and Tseng had a reasonable excuse a conclusion or finding which no reasonable judge, properly applying his mind to the factors to be considered and giving himself the proper directions, could have come to?", "zh-HK": "問題[4]：本席就裁定陳及叢有合理辯解是否任何明理，妥為顧及考慮因素並向自己發出了適當指示的法官均不可能達致的結論或裁斷？" } }, { "doc_id": 41, "seg_id": 73, "translation": { "en": "Secretary’s grounds of appeal", "zh-HK": "司長的上訴理由" } }, { "doc_id": 41, "seg_id": 74, "translation": { "en": "Mr Eric Kwok SC, acting for the Secretary, started off by submitting that if Chan and Tseng wished to rely on the defence of reasonable excuse, it was incumbent on them to adduce sufficient and credible evidence which could create a reasonable doubt in the prosecution case against them, before they could rid themselves of the charges (see HKSAR v Chan Tat Chung Danny [2010] 2 HKC 268). Mr Kwok SC stressed that if they wished to rely on the defence of permission provided in section 9(4) of the Ordinance, the burden was on them to establish on the balance of probabilities that Chan had obtained TVB’s permission to accept the $112,000 from Olympian City, and that further, the permission had to meet the criteria laid down in section 9(5) of the Ordinance.", "zh-HK": "代表司長的郭棟明資深大律師首先提出如要依賴“合理辯解”這答辯理由，陳和叢有責任提出充分且可信的證據，令控方指控他的案情出現合理疑點，才能脫罪。（見HKSAR v Chan Tat Chung Danny [2010] 2 HKC 268案）。郭資深大律師強調如他們要依賴《條例》第9(4)條所指的“許可”作為答辯理由，他們有舉證責任，以相對可能性較高的舉證標準證明陳有獲得無綫電視的“許可”，收取奧海城的112,000元，而該“許可”亦須符合《條例》第9(5)條定下的條件。" } }, { "doc_id": 41, "seg_id": 75, "translation": { "en": "Mr Kwok SC’s position is that neither Chan nor Tseng had adduced evidence sufficient to support the defence of reasonable excuse which could create a doubt in the prosecution case against them. Mr Kwok SC submitted that the inferred facts which the trial judge said could support the defence of reasonable excuse were not supported by sufficient primary facts. The inferred facts found by the trial judge which Mr. Kwok SC referred to are set out below:", "zh-HK": "郭資深大律師的立場是陳和叢都沒有提出足夠證據支持“合理辯解”這答辯理由，令控方針對他們的指控有疑點。郭資深大律師強調原審法官指能支持“合理辯解”的“推論事實”沒有足夠的基本事實支持。郭資深大律師所指的是原審法官作出的以下“推論事實”，即—" } }, { "doc_id": 41, "seg_id": 76, "translation": { "en": "TVB definitely knew that Olympian City would pay Chan remuneration for his performance in the publicity activities, and no one would suspect that TVB would not approve Chan’s acceptance of the remuneration;", "zh-HK": "無綫電視必然知悉奧海城必會給予陳演出有關宣傳活動的報酬，無人會懷疑無綫電視不會批准陳收取該酬金；" } }, { "doc_id": 41, "seg_id": 77, "translation": { "en": "TVB acquiesced in Chan’s acceptance of remuneration for his performance in the publicity activities;", "zh-HK": "無綫電視有默許陳就演出該宣傳活動收取酬金；" } }, { "doc_id": 41, "seg_id": 78, "translation": { "en": "Chan did not apply to his superior for permission to accept the remuneration because he thought he had no duty and did not need to make the application;", "zh-HK": "陳不向上級申請批准收取酬金是他認為無責任，亦無需要作出申請；" } }, { "doc_id": 41, "seg_id": 79, "translation": { "en": "Chan did not deliberately conceal the fact that he engaged in outside work and accepted the remuneration, so the remuneration was not secret reward; and", "zh-HK": "陳沒有刻意隱瞞他接受了外間工作及收取了報酬，故該報酬並非秘密報酬；及" } }, { "doc_id": 41, "seg_id": 80, "translation": { "en": "There was no reason why TVB would object to Chan’s accepting the remuneration.", "zh-HK": "無綫電視沒有理由反對陳收取該報酬。" } }, { "doc_id": 41, "seg_id": 81, "translation": { "en": "Mr Kwok SC pointed out that when TVB processed their employees’ applications concerning outside work, they attached great importance to whether the outside work was related to TVB’s business, because outside work which was not related to TVB’s business was a matter about the employment contract and was governed by specific application procedures and principles pertaining to granting approval, but that if an employee accepted remuneration for outside work which was related to TVB’s business, the employee’s acceptance of the remuneration was subject to the criminal law, and that therefore TVB had different application procedures and approval-granting principles to govern such applications. Mr Kwok SC submitted that for both kinds of activities, ie employees’ undertaking outside work and employees’ accepting advantages, TVB had a clear and definite policy and had prescribed application procedures, and that under such policy it was clearly stipulated that an employee could accept certain kinds of advantages only, which could not possibly include the $112,000 involved in the present case.", "zh-HK": "郭資深大律師指出無綫電視處理僱員在外間工作的申請時，十分注重該些外間工作是否和無綫電視的業務有關，原因是和無綫電視業務無關的外間工作屬僱傭合約問題，有其特定的申請程序和審批原則；但如僱員就和無綫電視業務有關的外間工作收取報酬，則僱員收取報酬一事會受刑法的規限。因此，無綫電視會有不同的申請程序和審批原則。郭資深大律師指出無綫電視就僱員從事外間工作及收取利益都有明確政策和申請程序，而該些政策更列明僱員只可以接受某些利益，但不可能包括涉案的112,000元。" } }, { "doc_id": 41, "seg_id": 82, "translation": { "en": "Mr Kwok SC emphasized that in the past the activities for which Chan accepted remuneration with TVB’s approval were all outside work not related to TVB’s business. Mr Kwok SC submitted that in making relevant findings of fact, the trial judge completely overlooked this important factor and unreasonably rejected the evidence of Lee Po-on, TVB’s General Manager, that if Chan applied to him for permission to accept remuneration for any performance which was related to TVB’s business, he definitely would refuse the application. Mr Kwok SC considered that the trial judge erroneously rejected Lee Po-on’s evidence, in that the trial judge commented that Mr Lee’s dealing with such application in this way was “not supported by any reasonable ground, in contravention of the usual rules and illogical” (see paragraph 38 of the Reasons for Verdict of the resumed trial).", "zh-HK": "郭資深大律師強調陳以往獲無綫電視批准收取酬勞的活動都是外間工作，和無綫電視的業務無關。郭資深大律師力稱原審法官作出有關事實裁決是完全忽略這重要因素，更不合理地拒絕接納無綫電視總經理李寶安的證言，指如陳就參與和無綫電視業務有關的演出向他申請收取酬勞，他必會拒絕。郭資深大律師認為原審法官錯誤地否定李寶安的證言，因為原審法官指李先生這樣處理該類申請“沒有合理理由支持，有違常規及不合邏輯”（見續審裁決理由書第38段）。" } }, { "doc_id": 41, "seg_id": 83, "translation": { "en": "Mr Kwok SC particularly referred to the fact that Chan had hosted 150 odd episodes of Be My Guest produced by TVB and had not accepted any extra remuneration, that Chan had never accepted any remuneration on account of his performing in any programme produced by TVB, ie taking part in performance which was related to TVB’s business, and that in addition, such way of handling the matter was contrary to TVB’s policy, therefore it was unlikely that TVB would permit Chan to accept $112,000 as remuneration from Olympian City through IEAP for his performance in the additional Be My Guest show.", "zh-HK": "郭資深大律師特別指出陳曾主持過無綫電視製作的150多集「志雲飯局」，但他都沒有收取任何額外酬勞，而他亦從來沒有因演出無綫電視製作的節目，即和無綫電視業務有關的演出而收取過酬金，再加上該做法和無綫電視的政策有抵觸，因此無綫電視不應會批准陳就演出“附加志雲飯局”透過思潮製作向奧海城收取112,000元酬金。" } }, { "doc_id": 41, "seg_id": 84, "translation": { "en": "Mr Kwok SC considered that the trial judge had no basis to find that TVB definitely knew Olympian City would pay Chan $112,000 as remuneration for his performance in the additional Be My Guest show and that TVB would acquiesce in Chan’s acceptance of the $112,000.", "zh-HK": "郭資深大律師認為原審法官沒有基礎裁定無綫電視必然知悉奧海城會支付112,000元給陳作為他演出“附加志雲飯局”的報酬及會默許陳收取該112,000元。" } }, { "doc_id": 41, "seg_id": 85, "translation": { "en": "Mr Kwok SC also took the view that when the trial judge considered the reasonable excuse factor, he lost sight of the fact that the purpose of the Ordinance was to ban secret commission, and that the $112,000 which Chan received from Olympian City on account of TVB’s business was precisely secret commission, and that therefore whether TVB suffered any loss or whether Chan deliberately concealed this matter had no bearing on the illegal nature of the $112,000 which Chan received from Olympian City through IEAP.", "zh-HK": "郭資深大律師亦認為原審法官在考慮“合理辯解”這因素時，忽略了《條例》要禁止“秘密佣金”的主旨，而陳因為無綫電視的業務而收取奧海城的112,000元正是“秘密佣金”。因此，不管無綫電視在事件中是否有損失或陳是否刻意隱瞞，都不影響陳透過思潮製作向奧海城收取的112,000元的違法性質。" } }, { "doc_id": 41, "seg_id": 86, "translation": { "en": "Mr Kwok SC reiterated that the $112,000 which Chan received through IEAP from Olympian City was related to TVB’s business, that its nature was different from that of the outside work which he took up previously, and that therefore Chan should not have thought that he had no duty or did not need to apply to his superior for permission to accept the remuneration. Mr Kwok SC also stressed that Chan did not make any or sufficient disclosure to TVB about his acceptance of Olympian City’s $112,000.", "zh-HK": "郭資深大律師重申陳經思潮製作向奧海城收取的112,000元是和無綫電視的業務有關，其性質和他曾從事過的其他“外間工作”不同，因此陳不應該認為他沒有責任或需要向上級申請批准以收取該酬金。郭資深大律師亦強調陳沒有就其收取奧海城112,000元一事向無綫電視作出過任何或足夠的披露。" } }, { "doc_id": 41, "seg_id": 87, "translation": { "en": "Mr Kwok SC submitted that when dealing with the issue of reasonable excuse, the court should consider objective social norms. He submitted that the fact that TVB allowed Chan to accept remuneration from Olympian City or acquiesced in his doing so, which the defence suggested, could not constitute the defence of reasonable excuse provided in the Ordinance.", "zh-HK": "郭資深大律師認為法庭在處理“合理辯解”這議題時要考慮客觀社會標準。他認為辯方所稱的無綫電視容許/默許陳向奧海城收取酬勞一事不能構成《條例》所列出的“合理辯解”這答辯理由。" } }, { "doc_id": 41, "seg_id": 88, "translation": { "en": "Mr Kwok SC contended that the answers to the questions set out in the stated case should all be “yes”, and that this Court should direct the trial judge to find Chan and Tseng guilty as charged and to continue to hear the case on this basis.", "zh-HK": "郭資深大律師力稱其“案件呈述”列出的問題的答案都是“是”，而本庭應指示原審法官裁定陳和叢都罪名成立，並指示他以此基礎繼續審理案件。" } }, { "doc_id": 41, "seg_id": 89, "translation": { "en": "Respondents’ position", "zh-HK": "答辯人的立場" } }, { "doc_id": 41, "seg_id": 90, "translation": { "en": "The basic position taken by Chan’s legal representative Mr Tse SC, is that Chan’s defence of reasonable excuse was established and that the not-guilty verdicts given by the trial judge were correct. Mr Tse SC considered that there was sufficient evidence in this case to support the verdicts. He submitted that TVB knew that Olympian City would certainly pay Chan for his performance in the additional Be My Guest show and that therefore they acquiesced in Chan’s acceptance of the remuneration. According to Mr Tse SC, evidence which supports the argument that TVB acquiesced in Chan’s acceptance of the remuneration includes: (1) the history of cooperation between Olympian City and TVB; (2) TVB knew of and did not object to Olympian City’s inviting Chan to take part in performing in the additional Be My Guest show; (3) TVB was not responsible for contacting Chan and inviting him to perform in the show, and Olympian City was left to contact him on their own; (4) the production fee of $1,300,000 agreed on between TVB and Olympian City did not include Chan’s performing fee; therefore, when Olympian City additionally paid $160,000 to invite Chan and another artiste Lai Yiu-cheung, they must have regarded them as performing guests, rather than artistes sent by TVB.", "zh-HK": "代表陳的謝華淵資深大律師的基本立場是陳的“合理辯解”這答辯理由已被確立，故原審法官的無罪裁決是正確的。謝資深大律師認為案件有足夠證據支持原審法官的裁決，指無綫電視知悉奧海城必會支付報酬給陳演出“附加志雲飯局”，故有默許陳收取該報酬。謝資深大律師指支持無綫電視默許陳收取報酬的證據包括：（一）奧海城與無綫電視的合作經驗；（二）無綫電視知道亦不反對奧海城邀請陳參與“附加志雲飯局”的演出；（三）無綫電視不負責聯絡及邀請陳演出，而交由奧海城親自聯絡他；（四）無綫電視和奧海城協議的130萬元製作費，並不包括陳的演出費用，故奧海城額外支付16萬元邀請陳和另一演員黎耀祥時，必然是視他們為表演嘉賓，而非無綫電視派出的藝人。" } }, { "doc_id": 41, "seg_id": 91, "translation": { "en": "Mr Tse SC emphasized that TVB knew Olympian City would definitely pay Chan for his performance and that during the performance, both Chan and Lai Yiu-cheung put on Olympian City stickers to show that they were Olympian City’s guests, not artistes sent by TVB. Mr Tse SC submitted that TVB knew in what capacity Chan acted when he performed in the additional Be My Guest show, ie he was a guest invited by Olympian City, not an artiste of TVB, and that TVB also treated Chan as one acted in that capacity. In these circumstances, Mr Tse SC asserted that TVB knew Olympian City invited Chan to perform in the additional Be My Guest show and would pay Chan remuneration but TVB raised no objection, and that therefore TVB acquiesced in Chan’s acceptance of the remuneration from Olympian City for his performance in the additional Be My Guest show.", "zh-HK": "謝資深大律師強調無綫電視知悉奧海城必定會向陳支付演出費用，而演出時，陳和黎耀祥都貼上奧海城的貼紙，代表他們是奧海城的嘉賓，而非無綫電視派出的藝人。謝資深大律師認為無綫電視知道陳演出“附加志雲飯局”時的身份，即他是奧海城邀請的嘉賓，並非無綫電視的藝人，而無綫電視亦是以該身份看待陳。在上述情況下，謝資深大律師力稱無綫電視知悉奧海城邀請陳演出“附加志雲飯局”及會向他支付酬金，但沒有提出反對，因此無綫電視有默許陳向奧海城收取酬金演出“附加志雲飯局”。" } }, { "doc_id": 41, "seg_id": 92, "translation": { "en": "Mr Tse SC emphasized that even though Lee Po-on claimed that he did not know Chan would take part in performing in the additional Be My Guest show, other controllers of TVB, including Ho Lai-chuen, Lok Yee-ling and other colleagues of different departments all knew about that, and that therefore at least TVB should know that Chan accepted remuneration for performing in the additional Be My Guest show. Mr Tse SC said, in these circumstances, Chan believed that TVB acquiesced in his acceptance of remuneration for his performance in the additional Be My Guest show, and that if he made a formal application, TVB would grant the application. Mr Tse SC asserted that in these circumstances Chan had a reasonable excuse to accept the $112,000. Mr Tse SC stressed that Chan simply could not conceal the fact that he performed in the additional Be My Guest show, and that therefore he had no reason to deliberately refrain from applying to Lee Po-on for permission to accept remuneration from Olympian City for his performance.", "zh-HK": "謝資深大律師強調雖然李寶安聲稱他不知道陳會參與演出“附加志雲飯局”，但其他無綫電視總監，包括何麗全、樂易玲及其他跨部門同事都知道該事，因此無綫電視最少是應該知道陳是有收取報酬演出“附加志雲飯局”的。在上述情況下，謝資深大律師認為，陳相信無綫電視是默許他收取費用演出“附加志雲飯局”，而如他提出正式申請，無綫電視是會批准的。謝資深大律師力稱在上述情況下，陳是有“合理辯解”收取涉案的112,000元。謝資深大律師強調，陳根本不能隱瞞他演出“附加志雲飯局”一事，因此他亦沒有理由刻意不向李寶安申請以取得許可向奧海城收取演出費用。" } }, { "doc_id": 41, "seg_id": 93, "translation": { "en": "Referring to the trial judge’s finding that Chan’s performance in the additional Be My Guest show was beneficial to both parties and his rejection of Lee Po-on’s evidence that if Chan applied for permission to accept remuneration from Olympian City for his performance in the additional Be My Guest show, he would refuse the application, Mr Tse SC submitted that the trial judge’s findings were not altogether unreasonable, that they were supported by evidence, and that therefore the Court of Appeal had no basis to reverse them.", "zh-HK": "謝資深大律師強調原審法官裁定陳演出“附加志雲飯局”對雙方都有利，亦不接納李寶安的證言指如陳申請收取奧海城費用演出“附加志雲飯局”，他會拒絕申請。謝資深大律師認為原審法官的裁決並非全不合理，亦是有證據支持的，因此上訴法庭無基礎推翻原審法官的事實裁決。" } }, { "doc_id": 41, "seg_id": 94, "translation": { "en": "Mr Tse SC submitted that Chan did in the same way as what he did when he performed in the 150 odd episodes of Be My Guest in the past, ie he did not receive any remuneration from TVB for his performance in the additional Be My Guest show. Mr Tse SC considered that in view of the fact that TVB had knowledge of, did not object to and even acted in such a way as to facilitate [Chan’s performance], TVB should not object to Chan’s acceptance of the $112,000 from Olympian City for his performance in that sideshow.", "zh-HK": "謝資深大律師指出和過往演出的150多集「志雲飯局」一樣，陳沒有因為演出“附加志雲飯局”向無綫電視收取任何報酬。謝資深大律師認為在無綫電視知情及不反對、更作出配合下，無綫電視不應會反對陳收取奧海城112,000元演出“附加志雲飯局”。" } }, { "doc_id": 41, "seg_id": 95, "translation": { "en": "In Mr Tse SC’s view, the trial judge correctly took into account the factor of whether Chan had acted dishonestly in the incident, and the fact that Chan did not act dishonestly was necessarily one of the factors for determining whether Chan had a reasonable excuse. Mr Tse SC’s position is that since Chan did not apply to TVB for permission in respect of his acceptance of the $112,000, he had to rely on the defence of reasonable excuse and that in dealing with this issue, the court should take into account the background of the incident in its entirety, including the way in which Chan and TVB handled applications of similar nature in the past, the absence of any conflict of interest between Chan and TVB in relation to his acceptance of the $112,000 from Olympian City and the fact that Chan did not deliberately conceal his acceptance of the remuneration.", "zh-HK": "謝資深大律師認為原審法官有正確地考慮陳在事件上是否有不誠實行事，而陳沒有不誠實行事亦必然是決定陳是否有“合理辯解”的因素之一。謝資深大律師的立場是陳沒有就收取涉案的112,000元向無綫電視申請許可，故要依賴“合理辯解”為答辯理由，而在處理該議題時，法庭理應將整件事件的背景，包括陳過往和無綫電視就同類申請的處理方法、陳收取奧海城112,000元一事和無綫電視並沒有任何利益衝突及陳沒有刻意隱瞞收取該報酬等事項考慮在內。" } }, { "doc_id": 41, "seg_id": 96, "translation": { "en": "Mr Tse SC contended that Chan’s failure to disclose to TVB his acceptance of the remuneration from Olympian City was not of crucial importance in the incident. Mr Tse SC did not agree with the Secretary’s view, and he argued that the trial judge did not overlook the fact that what happened in this case was related to TVB’s business. He submitted that the crux of this case was that the trial judge found that Chan reasonably believed he was entitled to accept remuneration from Olympian City for his performance in the additional Be My Guest show, and that TVB not only knew about that but they should not object to Chan’s acceptance of the remuneration.", "zh-HK": "謝資深大律師亦認為陳沒有向無綫電視披露他有向奧海城收取酬金一事對事件並無舉足輕重的影響。謝資深大律師不同意司長的立場並指原審法官沒有忽略涉案事件和無綫電視的業務有關一事。他指出案件的重點是原審法官裁定陳會合理地認為他有權就演出“附加志雲飯局”收取奧海城酬金，而無綫電視不但知情，更不應反對陳收取酬金一事。" } }, { "doc_id": 41, "seg_id": 97, "translation": { "en": "Mr Tse SC pressed the point that permission, lawful authority and reasonable excuse are three different defences provided for by statute in the case of an agent accepting an advantage, therefore the court should give different considerations to these different defences. Mr Tse SC further argued that if Chan’s acceptance of the remuneration was illegal, then Olympian City should also have been charged.", "zh-HK": "謝資深大律師強調“許可”、“合法權限”和“合理辯解”是法例列明就代理人收取利益的不同答辯理由，因此，法庭應給予該些不同的答辯理由不同的考慮。謝資深大律師更指如陳收取酬金的行為是違法，則奧海城亦應受到檢控。" } }, { "doc_id": 41, "seg_id": 98, "translation": { "en": "Mr Tse SC pointed out in his oral submissions that Chan’s performance in the additional Be My Guest show was not the first time he accepted remuneration from a third party for his doing an act in relation to TVB’s business. He submitted that the undisputed documentary exhibit P27 showed that Chan had made application in respect of a certain performance which was related to TVB’s business and was granted permission to accept $50,000 from a third party as remuneration. The content of exhibit P27 relied on by Mr Tse SC is as follows:", "zh-HK": "在其口頭陳述，謝資深大律師更指陳演出“附加志雲飯局”並非是他第一次和無綫電視業務有關的作為向第三者收取酬金。他指出無爭議的文件證物P27顯示，陳曾就一些和無綫電視業務有關的演出提出申請及取得許可，向第三者收取5萬元報酬。謝資深大律師依賴的證物P27的內容如下：" } }, { "doc_id": 41, "seg_id": 99, "translation": { "en": "Please kindly note that I will attend the product launch of OSIM in the afternoon of 2 Apr 2009, for which I will be given a fee of HK$50,000. I will take leave for the purpose. I understand that the client has committed sponsorship for exposure in “Scoop” on Jade.", "zh-HK": "Please kindly note that I will attend the product launch of OSIM in the afternoon of 2 Apr 2009, for which I will be given a fee of HK$50,000. I will take leave for the purpose. I understand that the client has committed sponsorship for exposure in “Scoop” on Jade." } }, { "doc_id": 41, "seg_id": 100, "translation": { "en": "Mr Tse SC’s argument is that the above-mentioned performance was comparable to Chan’s performance in the additional Be My Guest show, and that Chan at that time was under the supervision of Chan Ching-cheong, who approved his acceptance of the $50,000; therefore, Chan’s acceptance of the $112,000 for his performance in the additional Be My Guest show was not the first time he accepted remuneration from a third party for his doing an act in relation to TVB’s business. However, Mr Tse SC admitted that at the trial he did not ask Chan Ching-cheong about his understanding of the exact meaning of “the client has committed sponsorship for exposure in ‘Scoop’ on Jade’. His argument is that the nature of that performance should be the same as that of the additional Be My Guest show.", "zh-HK": "謝資深大律師的立場是上述演出等同演出“附加志雲飯局”，而當時負責陳的上司陳禎祥有批准陳收取該50,000元，因此陳收取112,000元演出“附加志雲飯局”並非他第一次在和無綫電視業務有關的作為中向第三者收取報酬。但謝資深大律師承認原審時，他並沒有向陳禎祥查詢他如何理解“client has committed sponsorship for exposure in ‘Scoop’ on Jade”的確實性質。他的立場是該表演應該和“附加志雲飯局”的性質相同。" } }, { "doc_id": 41, "seg_id": 101, "translation": { "en": "Mr Tse SC concluded that the trial judge’s finding that Chan’s acceptance of the $112,000 from Olympian City through IEAP was supported by a reasonable excuse was correct, and that the answers to the Secretary’s questions set out in the stated case should all be “No”.", "zh-HK": "謝資深大律師最終認為原審法官裁定陳透過思潮製作向奧海城收取112,000元一事有“合理辯解”支持的決定是正確的，而司長在“案件呈述”中提出的問題的答案全部都應該是“否”。" } }, { "doc_id": 41, "seg_id": 102, "translation": { "en": "Ms Maggie Wong, counsel for Tseng, submitted that the trial judge’s verdicts were based on the following factors:", "zh-HK": "代表叢的黃珮琪大律師強調原審法官的裁決是建基在以下各點：" } }, { "doc_id": 41, "seg_id": 103, "translation": { "en": "Chan’s performance in the additional Be My Guest show was something which took place in the open and Olympian City communicated with IEAP through the usual procedure;", "zh-HK": "陳演出“附加志雲飯局”一事是公開的，而奧海城亦是透過這正常程序來向思潮製作接洽；" } }, { "doc_id": 41, "seg_id": 104, "translation": { "en": "The senior management of TVB must have discussed the programme and agreed that it could be broadcast;", "zh-HK": "無綫電視高層必會討論過有關節目，並同意其播出；" } }, { "doc_id": 41, "seg_id": 105, "translation": { "en": "If Chan had agreed to perform in the additional Be My Guest show free of charge, the body which invited him to do so should have been TVB, and the invitation should not have been made through IEAP; therefore, no one would expect that Chan would agree to perform in the programme free of charge or that IEAP would provide their service free of charge;", "zh-HK": "如陳同意免費演出“附加志雲飯局”，應由無綫電視邀請他，而非透過思潮製作，因此沒有人會認為陳會免費演出該節目或思潮製作會免費提供服務；" } }, { "doc_id": 41, "seg_id": 106, "translation": { "en": "Between June 2008 and January 2010, Chan engaged in outside work 20 times, accepted remuneration 18 times, and 9 times out of these he had informed his immediate company [sic];", "zh-HK": "2008年6月至2010年1月，陳有20次外間工作，18次有收取報酬，當中9次知會其直屬公司；" } }, { "doc_id": 41, "seg_id": 107, "translation": { "en": "Starting from 2008, the notifications or applications which Chan made in connection with his engagement in outside work were not processed in accordance with the formal procedures provided for by TVB and TVB did not handle those applications seriously;", "zh-HK": "自2008年開始，陳因接受外間工作而作出的通知或申請，已沒有根據無綫電視定下的正式程序批核，而無綫電視亦沒有認真處理該些申請；" } }, { "doc_id": 41, "seg_id": 108, "translation": { "en": "Lee Po-on had never objected to Chan’s taking up outside work and accepting remuneration, therefore the trial judge found that if Chan applied to him for accepting $112,000 for his performance in the additional Be My Guest show, he would not refuse; and", "zh-HK": "李寶安從來沒有反對陳在外間工作及收取報酬。因此，原審法官裁定如陳向他申請就演出“附加志雲飯局”收取112,000元，他不會不答應；及" } }, { "doc_id": 41, "seg_id": 109, "translation": { "en": "There was no evidence which showed that Chan deliberately concealed the fact that he accepted $112,000 as remuneration.", "zh-HK": "沒有任何證據顯示陳有刻意隱瞞收取112,000酬金一事。" } }, { "doc_id": 41, "seg_id": 110, "translation": { "en": "Ms Wong considered that there was sufficient evidence for the trial judge to make the findings of fact in question, particularly the one that TVB acquiesced in Chan’s acceptance of remuneration from a third party for his performance in the additional Be My Guest show. She submitted that the trial judge’s findings of fact were not perverse, and that the Court of Appeal should not disturb them.", "zh-HK": "黃大律師認為原審法官有足夠證據作出有關的事實裁決，特別是無綫電視有“默許”陳就演出“附加志雲飯局”收取第三者的報酬一事。她認為原審法官的事實裁決，並非“有悖常理”，故上訴法庭不應更改。" } }, { "doc_id": 41, "seg_id": 111, "translation": { "en": "Ms Wong contended that Chan had reason to expect that TVB would approve his acceptance of remuneration for doing outside work. She submitted that not only that TVB should not object to Chan’s acceptance of remuneration for his performance in the additional Be My Guest show, they should even support it.", "zh-HK": "黃大律師強調陳有理由亦有期望無綫電視會批准他就外間工作收取報酬。黃大律師認為無綫電視不但不應會反對陳收取報酬演出“附加志雲飯局”，更應給予支持。" } }, { "doc_id": 41, "seg_id": 112, "translation": { "en": "Ms Wong stressed that Tseng, not being an employee of TVB, had no knowledge of Chan’s employment terms, or the rules that Chan should follow, and that therefore he could not possibly know whether Chan was entitled to accept remuneration for his performance in the additional Be My Guest show. Taking into account the cooperation relationship between TVB and Olympian City, Tseng would reasonably think that TVB would agree that IEAP could engage Chan and pay him remuneration for his performance in the additional Be My Guest show. Ms Wong took the view that Tseng had reasonable grounds to believe that TVB knew of, allowed or acquiesced in Chan’s acceptance of remuneration for his performance in that programme. Ms Wong asserted that these factors were sufficient to support Tseng’s defence of reasonable excuse.", "zh-HK": "黃大律師強調叢並非無綫電視的僱員，亦不知悉陳的聘用條件或守則，故不可能知道陳是否有權就演出“附加志雲飯局”收取酬金，而考慮到無綫電視和奧海城的合作關係，叢必會合理地認為無綫電視同意思潮製作聘用陳及向他支付酬金，以演出“附加志雲飯局”。黃大律師認為叢是有合理理由相信無綫電視是知道、容許或默許陳收取酬金演出該節目的。黃大律師力稱上述因素足以支持叢的“合理辯解”之答辯理由。" } }, { "doc_id": 41, "seg_id": 113, "translation": { "en": "Ms Wong submitted that since the Secretary appealed by way of case stated, he had to prove that the trial judge had committed an error of law and that his findings of fact were such that no reasonable judge could have come to and were perverse. Ms Wong considered that the trial judge’s findings of fact which the Secretary asked this Court to reverse did not meet this standard at all. She cited Li Man Wai v Secretary for Justice (2003) 6 HKCFAR 466, Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 to support her argument.", "zh-HK": "黃大律師指出司長是以“案件呈述”提出上訴，他必需證明原審法官在法律上犯錯及其達到的事實裁決是任何合理的法官都不會作出的，是有悖常理的。黃大律師認為司長要求上訴法庭推翻原審法官所作的事實裁決的申請完全不能達到上述標準。她援引Li Man Wai v Secretary for Justice (2003) 6 HKCFAR 466，Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336等案例支持其立場。" } }, { "doc_id": 41, "seg_id": 114, "translation": { "en": "Ms Wong submitted that the scope of reasonable excuse was wider than that of lawful authority or permission, and that whether the defence of permission was available to a defendant should not adversely affect the availability of the general defences of lawful authority and reasonable excuse to that defendant. She also argued that if a defendant honestly believed that he was justified in accepting a certain reward, even if he did not obtain permission from his employer, he could still rely on the defence of reasonable excuse. Ms Wong asserted that if the principal knew of or acquiesced in his agent’s acceptance of remuneration or allowed the agent to do so, the agent’s acceptance of remuneration would not be a contravention of section 9 of the Ordinance. Ms Wong stressed that in the circumstances of this case, there was sufficient evidence to show that Tseng honestly believed that Chan had obtained permission from TVB to accept remuneration from Olympian City for his performance in the additional Be My Guest show, and that therefore Tseng could rely on the defence of reasonable excuse.", "zh-HK": "黃大律師重申“合理辯解”涵蓋的範圍比“合法權限”或“許可”廣闊，而“許可”這答辯理由亦不應損害“合法權限”和“合理辯解”這一般性的答辯理由。她亦認為若一名被告人真誠地相信他是理應得到有關的報酬時，即使沒有取得其僱主的“許可”，他仍然是可以依賴“合理辯解”這答辯理由的。黃大律師力稱如主事人知道、容許或默許代理人收取酬金時，代理人收取酬金一事不會觸犯《條例》第9條。黃大律師強調，以本案的情況而言，有足夠證據顯示叢會真誠地相信陳有獲得無綫電視的“許可”向奧海城收取報酬，演出“附加志雲飯局”，而叢亦因此可以依賴“合理辯解”這答辯理由。" } }, { "doc_id": 41, "seg_id": 115, "translation": { "en": "Ms Wong submitted that reasonable excuse and permission were two separate defences. She emphasized that a defendant who had to rely on the defence of reasonable excuse must have accepted a reward without the permission granted by the principal under section 9(4) of the Ordinance, and that therefore in considering whether the defence of reasonable excuse was established, factors other than whether the agent had obtained the principal’s acquiescence had also to be taken into account, including what was in the mind of the defendant, whether he intended to conceal anything, whether he acted dishonestly, whether there was any conflict of interest, the background of the two parties concerned and the usual way of doing things.", "zh-HK": "黃大律師重申“合理辯解”和“許可”是兩個獨立的答辯理由，並強調當一名被告人要依賴“合理辯解”這答辯理由時，他所收取的報酬必然是未得主事人根據《條例》第9(4)條的“許可”。因此在考慮“合理辯解”這答辯理由能否成立時，除了主事人是否曾給予代理人默許外，亦要考慮其他因素，包括被告人的心態、他是否有意隱瞞、他是否不誠實行事、事件是否有利益衝突情況出現及雙方背景和一貫做法等。" } }, { "doc_id": 41, "seg_id": 116, "translation": { "en": "According to Ms Wong, looking at Chan’s acceptance of the $112,000 from the point of view of the public, and adopting an objective standard, a reasonable man would consider that Chan had a reasonable excuse.", "zh-HK": "黃大律師認為以大眾的客觀標準去考慮陳收取112,000元一事，合理人士會認為陳是有“合理辯解”的。" } }, { "doc_id": 41, "seg_id": 117, "translation": { "en": "Ms Wong cited a number of cases to support her contention that when a principal knew that his agent would accept remuneration from a third party, he could not raise any objection by arguing that he was not aware of the details or the exact amount involved. Ms Wong’s position is that TVB could not claim that their acquiescence in Chan’s acceptance of the advantage in question was invalid by saying that they did not know how much Chan accepted from Olympian City and complaining that Chan did not make sufficient disclosure.", "zh-HK": "黃大律師亦援引多宗案例指當主事人知道代理人會從第三者收取酬勞時，他不能以不知具體的情況或確實金額來提出反對。她的立場是無綫電視不能以不知悉陳向奧海城收取金額多少及指陳沒有作出足夠披露為理由，來聲稱其“默許”陳收取利益的決定無效。" } }, { "doc_id": 41, "seg_id": 118, "translation": { "en": "Although Ms Wong did not separate Tseng’s case from Chan’s case in her original written submissions, upon enquiry by the court, she submitted that the court should give separate consideration to whether Tseng had a reasonable excuse and should not be constrained by the finding which the court made in respect of the same defence invoked by Chan. Ms Wong submitted that the relevant differences between Tseng’s case and Chan’s case included the following:", "zh-HK": "雖然黃大律師在其原本的書面陳詞沒有將叢和陳的情況分別出來，但在法庭的查詢下，她表示法庭應獨立考慮叢是否有合理辯解，而非受制於法庭就陳同一答辯理由所作的裁決的規限。黃大律師指叢和陳不同的有關因素，包括：" } }, { "doc_id": 41, "seg_id": 119, "translation": { "en": "“(1)Tseng, through IEAP, accepted on behalf of Chan outside bodies’ engagement of Chan for his appearance at commercial activities. Such activities were Tseng’s normal commercial activities.", "zh-HK": "“(一)叢透過思潮替陳接受外間機構聘請陳出席商業活動是叢的正常商業行為。" } }, { "doc_id": 41, "seg_id": 120, "translation": { "en": "(2)Tseng was not TVB’s employee, so he would have no knowledge of the terms of the contract between Chan and TVB, the internal rules issued by TVB to their staff members, or the arrangements between Chan and TVB concerning outside bodies’ engagement of Chan for his appearance at commercial activities.", "zh-HK": "(二)叢並非無綫電視的僱員，他不會知悉陳和無綫電視之間的合約條款，無綫電視向員工發出的內部守則，或陳與無綫電視之間就陳接受外間機構聘請陳出席商業活動的安排。" } }, { "doc_id": 41, "seg_id": 121, "translation": { "en": "(3)Regarding the activity involved in this case, it was Olympian City which, on their own initiative, contacted Tseng and asked him to engage Chan and Lai Yiu-cheung to perform in the additional Be My Guest show, and to negotiate with the two performers about their performance fees. Olympian City notified TVB in advance that they would on their own invite Chan and Lai Yiu-cheung to appear in the additional Be My Guest show. From the standpoint of Tseng, such arrangement showed that at the very least TVB acquiesced in Chan’s acceptance of remuneration from Olympian City for his appearance in that sideshow. If this incident had nothing to do with remuneration, Tseng/IEAP would not have involved in it at all. The prosecution also agreed that TVB should suspect or should know that Chan accepted remuneration in this activity. In relation to this issue, Tseng’s position did not differ much from Olympian City’s.", "zh-HK": "(三)是次活動是奧海城主動聯絡叢來聘請陳和黎耀祥在附加志雲飯局演出及洽談兩位演出者的演出費用。奧海城事前已通知無綫電視奧海城會自行邀請陳和黎耀祥出席附加志雲飯局。站在叢的角度，這只能代表無綫電視最少已默許陳收取奧海城的酬勞出席該演出。若事件不涉及酬勞，根本不會有叢/思潮的參與。控方亦同意無綫電視應該懷疑或應該知道陳在此活動中有收取酬勞。叢的立場與奧海城在這議題上並無重大分別。" } }, { "doc_id": 41, "seg_id": 122, "translation": { "en": "(4)TVB was aware of the above-mentioned arrangement, yet instead of raising any objection, they went on making preparations for the programme, with Chan and Lai Yiu-cheung being guests engaged by an outside body.", "zh-HK": "(四)無綫電視知道上述安排而沒有作出異議，反而繼續以陳和黎耀祥為外聘嘉賓的身份籌備該節目。" } }, { "doc_id": 41, "seg_id": 123, "translation": { "en": "(5)On the day of the performance, TVB allowed Chan and Lai Yiu-cheung to put on Olympian City stickers and continued to recognize their status of being guests engaged by an outside body.”", "zh-HK": "(五)無綫電視在演出當日容許陳和黎耀祥貼上奧海城貼紙，持續地承認陳和黎耀祥為外聘嘉賓的身份。”" } }, { "doc_id": 41, "seg_id": 124, "translation": { "en": "Ms Wong agreed that when a defendant sought to use reasonable excuse as his defence to a charge of agent accepting an advantage or offering an advantage to an agent, he bore the burden of proving the defence on the balance of probabilities, but she argued that when the charge was conspiracy for an agent to accept an advantage, the burden was on the prosecution to disprove defences such as lawful authority and reasonable excuse. Ms Wong cited a number of cases, including Churchill v Walton [1967] 2 AC 224 and HKSAR v Ng Po On (2008) 11 HKCFAR 91, to support her argument.", "zh-HK": "雖然黃大律師同意如一名被告人要以“合理辯解”作為代理人接受利益或向代理人提供利益罪行的答辯理由，他有舉證責任在相對可能性較高的標準證明該答辯理由，但她指如控罪是串謀使代理人接受利益時，則控方有舉證責任推翻“合法權限”及“合理辯解”等答辯理由。黃大律師援引多宗案例，包括Churchill v Walton [1967] 2 AC 224及HKSAR v Ng Po On (2008) 11 HKCFAR 91等案支持其立場。" } }, { "doc_id": 41, "seg_id": 125, "translation": { "en": "Ms Wong submitted that the answers to the questions raised by the Secretary in the stated case should all be “No”.", "zh-HK": "黃大律師認為司長在“案件呈述”提出問題的答案全都應該是“否”。" } }, { "doc_id": 41, "seg_id": 126, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 41, "seg_id": 127, "translation": { "en": "In Ng Po On, the issues which the Court of Final Appeal dealt with were about the interpretation of sections 14(1), 14(4) and 24 of the Ordinance. Under section 14(1) of the Ordinance the Court of First Instance may make an order authorizing the Commissioner of the ICAC to require, by a notice in writing, a person to furnish a statutory declaration or a statement in writing enumerating certain information. Section 14(4) of the Ordinance provides that any person on whom such a notice has been served who, without reasonable excuse, fails to comply with the terms of the notice shall be guilty of an offence. It is laid down in section 24 of the Ordinance that in any proceedings related to the Ordinance, the burden of proving a defence of lawful authority or reasonable excuse shall lie upon the accused. In Ng Po On, at the trial the magistrate held that the defendants bore the persuasive burden of proving that they had a reasonable excuse for their non-compliance with the notice. A judge of the Court of First Instance quashed the defendants’ convictions, holding that a persuasive burden encroached on the presumption of innocence and that section 24 could be treated as imposing a merely evidential burden so far as section 14(4) was concerned. On a remedial interpretation, the Court of Final Appeal read down section 24 in conjunction with section 14(4) so that they imposed an evidential burden instead of a persuasive burden. So read down, the accused who raises the defence of reasonable excuse will be required to adduce sufficient and credible evidence to engender a reasonable doubt as to the prosecution case, but the prosecution will retain throughout the persuasive burden of proving non-compliance, encompassing a burden of negativing any purported reasonable excuse.", "zh-HK": "終審法院在上述Ng Po On案處理的議題涉及《條例》第14(1)、14(4)和24條的詮釋。根據《條例》第14(1)條，原訟法庭可作出命令授權廉政專員發出通知書，要求某人提交法定聲明或陳述書列明某些事項。《條例》第14(4)條列明，接獲通知書的人如沒有合理辯解下沒有履行通知書的要求則屬犯法。《條例》第24條則列明和《條例》有關的法律程序中，以具有合法權限或合理辯解為免責辯護的舉證責任在於被控人。在Ng Po On案，原審裁判官裁定被告人負有“須令人信服”的責任，以證明他們有合理辯解而不遵照通知書行事。原訟法庭法官撤銷被告人的定罪，並裁定“須令人信服”的責任侵犯了無罪推定，而就《條例》第14(4)條而言，第24條只可視為施加於被告人“提出證據”的責任。終審法院採用補救性詮釋方法，將第24條連同第14(4)條的意思限制為施加“提出證據”責任，而非“須令人信服”的舉證責任。按照終審法院的上述解釋，提出合理辯解的被控人須提供充分且可信的證據，以令控方的案情出現合理疑點，但控方一直負有證明被控人不遵從通知書的“須令人信服”的舉證責任，包括否定任何被指為構成“合理辯解”的舉證責任。" } }, { "doc_id": 41, "seg_id": 128, "translation": { "en": "However, the Court of Final Appeal made it clear that the above-mentioned interpretation was exclusively concerned with how section 24 of the Ordinance affects the operation of section 14(4) of the Ordinance, and that when it came to consider other provisions in the Ordinance, such as sections 4, 5, 6, 7, 8 and 9, in which reasonable excuse also featured, such interpretation was not necessarily applicable.", "zh-HK": "但終審法院表明上述詮釋只涉及《條例》第24條如何影響《條例》第14(4)條的運作，而考慮《條例》其他涉及“合理辯解”的條款，例如第4、5、6、7、8和9條，該詮釋方法不一定適用。" } }, { "doc_id": 41, "seg_id": 129, "translation": { "en": "In our view, whether a reverse burden of proof is inconsistent with the presumption of innocence is dependent on whether the reverse burden is related to an element of the offence in question or is related to a defence only. The elements of the offence under section 14(4) of the Ordinance include (1) non-compliance with the terms of a notice; and (2) absence of a reasonable excuse. Generally speaking, the act of omission of not complying with a notice cannot constitute an unlawful act, but in order to enable the Commissioner of the ICAC to carry out his statutory duties more effectively, section 14(4) of the Ordinance stipulates that non-compliance with the terms of a notice without reasonable excuse after the notice has been served is an unlawful act.", "zh-HK": "本庭認為逆轉舉證責任是否和無罪推論有抵觸，應根據逆轉舉證是和控罪所指的犯罪要素有關或只是和答辯理由有關。《條例》第14(4)條的犯罪要素是包括（一）沒有履行通知書的要求；及（二）沒有合理辯解。一般而言，不履行通知書這「不作為」本身不可能構成犯罪行為，但為了令廉政專員能更有效地執行其法定職責，《條例》第14(4)條將接獲通知書但在沒有合理辯解下拒絕履行通知書的要求列為犯罪行為。" } }, { "doc_id": 41, "seg_id": 130, "translation": { "en": "HKSAR v Lam Yuk Fai (2006) 9 HKCFAR 281 is about the transfer of a travel document to another without reasonable excuse. The offence has two limbs: the first is the transfer of a travel document, and the second limb requires that the transfer should be without reasonable excuse. The Court of Final Appeal held that when a defendant was charged with conspiracy to transfer a travel document to another without reasonable excuse, the prosecution had the burden to negative the defendant’s reasonable excuse. In Churchill v Walton [1967] 2 AC 224 the House of Lords dealt with the case in a similar way. Viscount Dilhorne commented on page 237:", "zh-HK": "HKSAR v Lam Yuk Fai (2006) 9 HKCFAR 281案涉及沒有合理辯解下向另一人轉讓旅行證件。該罪行由兩部分組成：第一，轉讓旅行證件；及第二，須在沒有合理辯解下作出該轉讓。終審法院裁定當控方檢控被告人串謀在沒有合理辯解下向另一人轉讓旅行證件時，控方是有否定被告人有合理辯解的舉證責任。英國上議院法庭在Churchill v Walton [1967] 2 AC 224案以相同方法處理案件。Viscount Dilhorne 大法官在判案書第237頁強調：" } }, { "doc_id": 41, "seg_id": 131, "translation": { "en": "The House of Lords held that when prosecuting someone for conspiracy to use gas oil in respect of which the required payment had not been made, the prosecution not only had to prove that the defendant had in fact used the oil, but also had to prove that when the defendant conspired to use the oil, he knew that the required payment had not been made. The reason was that using the oil was not per se unlawful, and that what constituted the unlawful act was that when using the oil, the defendant knew that the required payment had not been made.", "zh-HK": "英國上議院裁定在處理一項串謀使用一些沒有支付某些費用的燃油時，控方不但要證明被告人確有使用過該些燃油，更要證明串謀使用該些燃油時，被告人是知悉該些燃油是沒有支付過有關費用的，原因是使用燃油本身並非違法，違法行為是使用燃油時，被告人是知悉該些燃油是沒有支付過有關費用的。" } }, { "doc_id": 41, "seg_id": 132, "translation": { "en": "The offences involved in the present case are agent accepting an advantage and offering an advantage to an agent. Each offence comprises only three elements: (1) accepting or offering an advantage; (2) as a reward for certain conduct; and (3) such conduct was related to the principal’s affairs or business. Without reasonable excuse is not an element of the offence (see HKSAR v Yan Pak Cheung [2009] 1 HKC 339 and Chan Tat Chung Danny, etc.).", "zh-HK": "本案涉及代理人接受或向代理人提供利益罪，構成該罪行的要素只有三項：（一）收受或提供利益；（二）作為某些行為的報酬；及（三）該行為是和代理人的主事人之事務或業務有關。沒有合理辯解並非該罪行的要素之一（見HKSAR v Yan Pak Cheung [2009] 1 HKC 339及Chan Tat Chung Danny 等案）。" } }, { "doc_id": 41, "seg_id": 133, "translation": { "en": "Reasonable excuse is one of the defences applicable to the offence of agent accepting an advantage and the offence of offering an advantage to an agent, but according to section 24 of the Ordinance, the burden of proving this defence is on the defendant. In our view, in the case of the offence of conspiracy for an agent to accept an advantage, the prosecution only needs to prove that the defendant entered into an agreement, the object of which was to enable an agent to accept an advantage for his doing an act in relation to his principal’s business, and that is sufficient to discharge the burden of proof required in respect of the offence. The prosecution bears no burden to negative the defence that the defendant has lawful authority/reasonable excuse etc.. When the elements of the offence is proved, it is for the defendant to prove the defence of lawful authority/reasonable excuse according to the civil standard of proof. Only if he is able to do so can he exonerate himself from any liability.", "zh-HK": "“合理辯解“是代理人接受或向代理人提供利益罪的答辯理由之一，但根據《條例》第24條，該免責辯護理由的舉證責任在被告人。本庭認為在串謀使代理人接受利益罪，控方亦只需要證明被告人和他人協議，目的是令代理人在和主事人的業務有關的作為收受報酬，已足以履行控罪所須的舉證責任。控方是沒有舉證責任否定被告人有合法權限/合理辯解等答辯理由。如罪行的要素已確立被告人要在符合民事案件的舉證標準下證明他有合法權限/合理辯解的免責辯護理由才能脫罪。" } }, { "doc_id": 41, "seg_id": 134, "translation": { "en": "In section 9 of the Ordinance, three defences are set out to the offence of an agent accepting an advantage on account of his doing an act in relation to his principal’s business, namely lawful authority, reasonable excuse and permission. Section 9(5) of the Ordinance provides that if an agent alleges that he accepted an advantage with the permission of his principal, the permission must fulfil the following two conditions in order to be effective:", "zh-HK": "《條例》第9條列出三項可以作為代理人就與其主事人業務有關的作為收取利益的免責理由，即“合法權限”、“合理辯解”和“許可”。《條例》第9(5)條列明如代理人指有其主事人的“許可”收取利益，該“許可”必須符合下列兩個條件方屬有效：" } }, { "doc_id": 41, "seg_id": 135, "translation": { "en": "The permission shall be given before the advantage is accepted, or be applied for and given as soon as reasonably possible after acceptance of the advantage; and", "zh-HK": "“許可”須在接受利益前或在接受利益後在合理可能範圍內盡早申請及給予；及" } }, { "doc_id": 41, "seg_id": 136, "translation": { "en": "The principal shall, before giving such permission, have regard to the circumstances in which it is sought.", "zh-HK": "主事人在給予許可前須顧及申請的有關情況。" } }, { "doc_id": 41, "seg_id": 137, "translation": { "en": "The Ordinance does not state what can constitute lawful authority or a reasonable excuse. This application[sic] does not involve any issue about lawful authority. It is no easy matter to describe in a general way what constitutes a reasonable excuse in a case of an agent accepting an advantage. Each case has its own particular facts, just as Kirby J said in Taikato:", "zh-HK": "《條例》並沒有列出甚麼能構成“合法權限”或“合理辯解”。本申請不涉及“合法權限”。在代理人收取利益案件，甚麼構成“合理辯解”絕非容易概括性地表述，每宗案件有其獨特的情況。誠如Kirby法官在Taikato案所述：" } }, { "doc_id": 41, "seg_id": 138, "translation": { "en": "“ … it will usually be an impossible task for any court to say definitely what conduct will amount to a reasonable excuse. More often it will be easier for the court to say what is not a reasonable excuse.”", "zh-HK": "“法庭不大可能指明甚麼行為可以構成‘合理辯解’。法庭較容易做到的是指出甚麼行為並不能構成‘合理辯解’。”" } }, { "doc_id": 41, "seg_id": 139, "translation": { "en": "At the material time, Chan was the General Manager (Broadcasting) of TVB. According to the employment contract between Chan and TVB, he could not undertake any outside work of whatever nature, whether paid or unpaid, before obtaining written consent of TVB. Furthermore, TVB had implemented a clear and definite policy, which unequivocally stipulated that in respect of any matter related to TVB’s business, an employee could accept from a third party the following advantages only:", "zh-HK": "在有關時段，陳是無綫電視的電視廣播業務總經理。根據陳和無綫電視簽訂的僱傭合約，他在未能取得無綫電視的書面同意前，不得從事任何性質的外間工作，不論該些外間工作是否有報酬。無綫電視更有明確政策，表明僱員在和無綫電視業務有關的事宜，只能接受第三者提供的下列利益：" } }, { "doc_id": 41, "seg_id": 140, "translation": { "en": "Non-cash gifts, advertising and promotional items, cash or gifts not exceeding $500 on any single festive programme [sic];", "zh-HK": "非現金禮品、廣告及宣傳物品，在節目每次收取現金或價值不超過500元的禮品；" } }, { "doc_id": 41, "seg_id": 141, "translation": { "en": "Discounts which were equally available to other persons outside the company;", "zh-HK": "公司之外其他人都享有的折扣優待；" } }, { "doc_id": 41, "seg_id": 142, "translation": { "en": "Normal business courtesies, such as a meal or other entertainment, provided that they were not so frequent or lavish that they might affect the proper discharge of the employee’s duties.", "zh-HK": "通常業務上的招待，例如餐飲及其他娛樂安排，但該些餐飲及娛樂安排不能太頻繁或太揮霍而影響僱員適當地履行其職務。" } }, { "doc_id": 41, "seg_id": 143, "translation": { "en": "Originally, Chan’s applications for undertaking outside work were handled by Mr Chan Ching-cheong, Assistant Managing Director of TVB. After he retired in May 2008, Chan’s applications were handled by Mr Lee Po-on, Group General Manager of TVB.", "zh-HK": "無綫電視的副董事總經理陳禎祥先生原先是負責處理陳從事外間工作的申請。他在2008年5月退休後，陳的申請改由無綫電視集團總經理李寶安先生負責。" } }, { "doc_id": 41, "seg_id": 144, "translation": { "en": "Evidence shows that between June 2008 and January 2010, Chan engaged in outside work 20 times, out of which he accepted remuneration 18 times. Chan stated that of these 18 times of his acceptance of remuneration for outside work, he informed his immediate superior only 9 times, and that very often he did not follow the official procedures prescribed by TVB for making applications and obtaining approval. For this reason, Mr Tse, Senior Counsel for Chan, emphasized that all along the two parties did not handle seriously matters concerning granting approval for Chan’s engaging in outside work, and that TVB had never objected to Chan’s acceptance of remuneration for his outside work. Ms Wong also pointed out that in April 2009 Chan had accepted $410,000 for his performance in the theatrical version of Be My Guest show, and that his superior at that time, Chan Ching-cheong, did not object in any way.", "zh-HK": "有證據顯示，2008年6月至2010年1月，陳有20次外間工作，其中18次他有收取報酬。陳指出他就外間工作收取報酬的18次中，只有9次知會他的直屬上司，而他很多時都沒有依照無綫電視定下的正式程序提出申請及取得批核。因此，代表陳的謝資深大律師強調雙方對於他接受外間工作的批核，一直都不是認真處理，而無綫電視對他收取報酬，從事外間工作都從來沒有反對過。黃大律師亦指出在2009年4月，陳曾收過41萬元演出“志雲飯局舞台版”，而他當時的上司陳禎祥亦沒有任何異議。" } }, { "doc_id": 41, "seg_id": 145, "translation": { "en": "We must point out that Chan’s acceptance of remuneration for his performance in the additional Be My Guest show cannot be equated with his acceptance of remuneration for his engagement in outside work. As correctly pointed out by Mr Kwok SC, the work for which Chan engaged in and for which he accepted remuneration 18 times was outside work, which was not related to TVB’s business. The nature of such work was totally different from that of the additional Be My Guest show in which he performed and accepted remuneration for his performance. According to the finding we made earlier, Chan’s performance in the additional Be My Guest show was undoubtedly related to TVB’s affairs or business. Chan’s acceptance of remuneration for his engagement in outside work was something about the employment contract between him and TVB, whereas his acceptance of $112,000 for his performance in the additional Be My Guest show was acceptance of an advantage by an agent for doing an act in relation to his principal’s business, and was governed by section 9(1)(a) of the Ordinance.", "zh-HK": "本庭應指出，陳收取報酬從事外間工作和他收取報酬演出“附加志雲飯局”一事，不可混為一談。誠如郭資深大律師正確指出，陳18次收取報酬從事的工作都是外間工作，和無綫電視的業務無關。該些外間工作和他收取報酬演出的“附加志雲飯局”性質完全不同。據本庭較早前作出的裁決，陳演出“附加志雲飯局”和無綫電視的事務或業務確實有關。陳收取報酬從事外間工作一事只與他和無綫電視簽署的僱傭合約有關。但陳收取112,000元演出“附加志雲飯局”，則屬代理人收受利益作出和其主事人的業務有關的作為，受《條例》第9(1)(a)條的管轄。" } }, { "doc_id": 41, "seg_id": 146, "translation": { "en": "We do not agree that exhibit P27 can serve as proof that TVB had approved Chan’s acceptance of remuneration from a third party for his doing an act in relation to TVB’s business. The content of exhibit P27 does not support this argument. Exhibit P27 is entitled “Outside Job”. Chan Ching-cheong gave evidence that Chan had never made any application to him for accepting remuneration from any outside body for his performance in any TVB programme. He was shown 9 documents, including exhibit P27, and he clearly said that they were about Chan’s applications for outside work. Lee Po-on also repeatedly stressed that TVB had never granted Chan permission to accept remuneration from a third party for his doing an act in relation to TVB’s business. At the trial, Chan Ching-cheong’s and Lee Po-on’s evidence was not challenged, and no one put to them that what they said was incorrect. Mr Tse SC had no basis to insist that exhibit P27 could prove that Chan’s acceptance of remuneration for his performance in the additional Be My Guest show was not the first time he accepted remuneration from a third party for his doing an act in relation to TVB’s business.", "zh-HK": "本庭不同意證物P27能證明無綫電視曾批准過陳就和無綫電視業務有關的作為向第三者收取報酬。證物P27的內容並不能證明該說法。證物P27的標題是“Outside Job”。而陳禎祥作供時，說陳沒有嘗試過向他申請收外間的酬勞作為做無綫電視的節目。證物P27等九份文件曾有向他展示，他表明這是和陳申請外間工作有關。李寶安亦多番強調無綫電視從來沒有批准過陳就和無綫電視業務有關的作為向第三者收取報酬。原審時，陳禎祥和李寶安的證言未受過挑戰，更沒有人指稱他們的說法不正確。謝資深大律師沒有任何基礎強稱證物P27能證明陳收取報酬演出“附加志雲飯局”並非是他首次就和無綫電視業務有關的作為向第三者收取報酬。" } }, { "doc_id": 41, "seg_id": 147, "translation": { "en": "Chan Ching-cheong and Lee Po-on agreed that there were occasions on which Chan applied to TVB for permission to accept remuneration from a third party in relation to outside work. If any of Chan’s applications met certain existing criteria, it would be granted by TVB. However, they said with one voice that if Chan participated in TVB’s activities in front of the camera or other activities which were related to TVB’s business, TVB would not allow him to accept remuneration from a third party for that. They also confirmed that Chan had never applied to TVB for permission to accept remuneration from a third party for his involvement in any work which was related to TVB’s business.", "zh-HK": "陳禎祥和李寶安同意陳就外間工作曾向無綫電視申請許可向第三者收取報酬，而如陳的申請符合某些既定條例，無綫電視會批准他的申請，但他們都異口同聲表示如陳參加無綫電視幕前或其他活動，即和無綫電視業務有關的工作，無綫電視不會批准他向第三者收取報酬。他們亦確認陳從來沒有就其參與和無綫電視業務有關的工作向無綫電視申請過許可向第三者收取報酬。" } }, { "doc_id": 41, "seg_id": 148, "translation": { "en": "Lee Po-on emphasized in his evidence that he would never grant permission to let Chan accept remuneration for his participation in any performance which was related to TVB’s business, and that Chan had never made any application for accepting remuneration from a third party for his taking part in any act in relation to TVB’s business. Lee Po-on’s stance is not difficult to understand and his reason is obvious. If TVB had approved Chan’s acceptance of remuneration for his doing an act in relation to TVB’s business, then TVB would have allowed a third party to profit from TVB’s business. Such way of doing things would impair TVB’s reputation and would conflict with TVB’s interests. Lee Po-on’s stance and statement were supported by reason; they were reasonable and credible.", "zh-HK": "李寶安作供時強調，如陳參與和無綫電視業務有關的演出而收取報酬，他一定不會批准，而陳亦從來沒有就其參與和無綫電視業務有關的作為作出申請向第三者收取報酬。李寶安的立場是不難理解的，原因亦是顯而易見的。如無綫電視批准陳就和無綫電視業務有關的作為收取報酬，則無綫電視會是容許第三者能透過無綫電視的業務謀取利潤。該做法會影響無綫電視的聲譽，亦會和無綫電視的利益有衝突。李寶安的立場及說法是有理可據的，亦是合理和合信的。" } }, { "doc_id": 41, "seg_id": 149, "translation": { "en": "The trial judge, in rejecting Lee Po-on’s evidence referred to above, commented that since he had never objected to Chan’s acceptance of remuneration for engaging in outside work, it was impossible that he would object to Chan’s acceptance of remuneration for his performance in the additional Be My Guest show. In making this finding, the trial judge did not take into account the fundamental difference between the outside work which Chan had engaged in and the additional Be My Guest show in which he performed.", "zh-HK": "原審法官拒絕接納李寶安的上述證言時，指出他從來沒有反對過陳就外間工作收取報酬，所以他不可能反對陳就演出“附加志雲飯局”收取報酬。作出上述裁決時，原審法官沒有考慮到陳曾演出的外間工作和演出“附加志雲飯局”的根本差別。" } }, { "doc_id": 41, "seg_id": 150, "translation": { "en": "The trial judge, on the ground that TVB had on many occasions approved Chan’s acceptance of remuneration for his engagement in outside work, found that if Chan had made the application, Lee Po-on certainly would have approved his acceptance of the $112,000 for his performance in the additional Be My Guest show. We consider that this finding made by the trial judge was made without basis and was wrong.", "zh-HK": "原審法官以無綫電視曾多次批准陳就外間工作收取報酬，裁定如陳提出申請，李寶安必會批准他收取112,000元演出“附加志雲飯局”。本庭認為原審法官作出的裁決是沒有根據的，亦是錯誤的。" } }, { "doc_id": 41, "seg_id": 151, "translation": { "en": "We cannot overlook the fact that Chan had never made any application in connection with any work which was related to TVB’s business, and that he had never received any remuneration for any work of that nature. His acceptance of remuneration for his performance in the additional Be My Guest show was the first time he received remuneration in the capacity of an agent for an act done in relation to his principal’s business. Nor can we ignore that if the additional Be My Guest show had not been a live broadcast sideshow of the publicity activities organized by TVB for Olympian City, that show could have attracted the attention of only the shoppers in Olympian City and there could have been no way for it to reach the mass audience of TVB, and Chan could not possibly have been paid the remuneration by Olympian City. TVB had no right to order Chan to perform in the additional Be My Guest show, but regardless of whether Chan performed in that sideshow, TVB could still receive the same amount of remuneration. The trial judge did not take into account this consideration.", "zh-HK": "本庭不能忽視陳從來沒有試過就和無綫電視業務有關的工作作出申請或收取過任何報酬。他收取報酬演出“附加志雲飯局”是第一次以代理人身份就其主事人的業務有關的作為收取報酬。本庭亦不能忽視，如“附加志雲飯局”不是由無綫電視為奧海城舉辦的宣傳活動附加現場直播，該節目只可能吸引到奧海城的購物者，根本不可能吸引到無綫電視的大量觀眾，而陳亦不可能取得奧海城支付的報酬。無綫電視無權指令陳演出“附加志雲飯局”，但不論陳是否有演出該節目，無綫電視仍可以收取同一報酬。原審法官沒有將這因素考處在內。" } }, { "doc_id": 41, "seg_id": 152, "translation": { "en": "The trial judge found that the reason for Chan’s failure to apply to his superior for permission to accept the remuneration was that he considered that he had no duty and had no need to do so. This finding was made on the basis that Chan had, on many occasions, taken up outside work, accepted remuneration for such work and did not inform TVB, and that when he did notify the top management of TVB by way of “informing” them, without making any formal application, the top management did not require him to make any formal application, nor did they give him any formal reply or send such “information” or applications to the personnel department for record. We do not agree with this finding made by the trial judge.", "zh-HK": "原審法官是根據陳曾多次從事外間工作收取報酬，都沒有知會無綫電視，而當陳沒有作出正式申請，只以“知會”方式通知無綫電視高層時，他們都沒有要求陳作出正式申請，亦沒有作出正式回覆，更沒有將該些“知會”或申請交付人事部存檔為理由，認為陳不向上級申請批准收取酬金是因為他認為無責任，亦無需要作出申請。本庭不同意原審法官的裁決。" } }, { "doc_id": 41, "seg_id": 153, "translation": { "en": "In our judgment, the trial judge’s findings were made as a result of his misapprehension of the above-mentioned facts and his failure to properly take into account relevant considerations. The conclusions he came to are those which no reasonable tribunal could have come to and, as such, are errors of law which can be reversed by an appellate court (see Li Man Wai v Secretary for Justice (2003) 6 HKCFAR 466).", "zh-HK": "本庭認為原審法官的裁決是建基在他對上述事實的誤解及沒有恰當地將有關的因素考慮在內。他得到的結論是合理的審裁機構都不會達致的，屬法律上的錯誤，上訴法庭有權推翻（見Li Man Wai v Secretary for Justice (2003) 6 HKCFAR 466案）。" } }, { "doc_id": 41, "seg_id": 154, "translation": { "en": "If Chan considered that he had no duty and had no need to apply to TVB for approval in respect of his performance in the additional Be My Guest show, it was because he was ignorant of the law or misunderstood the law. According to section 9(5) of the Ordinance, if Chan wanted to lawfully accept the $112,000 involved in this case, he had to apply to TVB and obtain their permission before he accepted the money, or apply for and obtain TVB’s permission as soon as reasonably possible after he accepted the money. In addition, when he made the application, he had the duty to disclose to TVB all relevant circumstances in order to enable TVB to decide whether to give him such permission or not. He could not use his ignorance or misunderstanding of the law as a reason for claiming that he was not governed by the law. A defendant’s ignorance or misunderstanding of the law cannot constitute a valid defence.", "zh-HK": "如陳認為他無責任，亦無需要就演出“附加志雲飯局”向無綫電視申請及取得許可，他是對法律無知或誤解。根據《條例》第9(5)條，如陳要合法地收取涉案的112,000元，他必須在收取該款項前或在收到該款項後，在合理可能範圍內盡早向無綫電視提出申請及取得許可。他亦有責任在申請許可時，向無綫電視披露全部有關情況，以便無綫電視決定是否給予他許可。陳不能以他對法律的無知或誤解而強稱他不受法律的規管。一名被告人對法律的無知或誤解不能構成有效的答辯理由。" } }, { "doc_id": 41, "seg_id": 155, "translation": { "en": "If Ms Wong’s stance is that as long as an agent honestly believes that he was justified in accepting a certain reward for his act done in relation to his principal’s business, even though he accepted the reward without the permission of his principal, he could rely on the defence of reasonable excuse, the stance she took was wrong and the case HKSAR v Peter Norman Elliott CACC 126/2003 she cited does not support her stance.", "zh-HK": "如黃大律師的立場是只要一名代理人就其主事人業務的作為真誠地相信他是理應得到某些報酬，而即使他沒有取得主事人的許可便收取報酬，他是可以依賴“合理辯解”作為免責理由，黃大律師的立場不正確，而她援引的HKSAR v Peter Norman Elliott CACC 126/2003案亦不支持該立場。" } }, { "doc_id": 41, "seg_id": 156, "translation": { "en": "Chan and Tseng did not give any evidence in defence, nor did they adduce any other evidence to support their argument that there was a reasonable excuse which could support Chan’s acceptance of $112,000 from Olympian City through IEAP for his performance in the additional Be My Guest show. The undisputed evidence shows that Chan had never accepted any remuneration from a third party in relation to TVB’s business and that TVB had never granted him permission to do that. There was no evidential basis at all which could provide Chan with a reasonable ground to form the opinion that he was entitled to accept the $112,000 in question without obtaining permission from TVB.", "zh-HK": "陳和叢都沒有作供自辯或提出其他證據支持他們的立場，即他們有合理辯解來支持陳可以透過思潮製作向奧海城收取112,000元演出“附加志雲飯局”。無爭議的證據顯示，陳從來沒有試過就和無綫電視有關的業務向第三者收取報酬，而無綫電視亦從來沒有批准過他這樣做。陳根本沒有任何證據基礎能令他會有合理理由認為他有權在未取得無綫電視的許可下，收取涉案的112,000元。" } }, { "doc_id": 41, "seg_id": 157, "translation": { "en": "We also consider that there was no objective factor which could provide Tseng with any reasonable ground for his opinion that Chan had obtained TVB’s permission to accept the $112,000 in question. Tseng was Chan’s manager and was responsible for arranging outside work for Chan, but he had never arranged for Chan any work which was related to TVB’s business, nor is there any evidence which shows that Chan had received any remuneration from a third party in relation to such work. Moreover, there is no evidence in this case that Tseng had ever asked Chan whether he could accept remuneration for engaging in work which was related to TVB’s business. Chan did not furnish any reason, let alone convincing reason, which could show that he had reasonable grounds to think that Chan had obtained TVB’s permission to accept the $112,000 in question.", "zh-HK": "本庭亦認為沒有任何客觀因素令叢有合理理由認為陳已獲得無綫電視的許可收取涉案的112,000元。叢是陳的經理人，曾負責替陳安排外間工作。但叢從來沒有替陳安排過任何和無綫電視業務有關的工作，亦沒有證據顯示陳有就該些工作向第三者收取過報酬。案件亦沒有證據顯示叢有向陳查詢過他是否可以在一些和無綫電視業務有關的工作收取報酬。叢未能提出任何理由，更遑論令人信服的理由，指他有合理理由認為陳有獲得無綫電視的許可收取涉案的112,000元。" } }, { "doc_id": 41, "seg_id": 158, "translation": { "en": "The trial judge placed emphasis on the fact that matters concerning Chan’s performance in the additional Be My Guest show all along proceeded in the open, that the production of the programme involved different departments of TVB, and that therefore TVB definitely knew that Chan would perform in the additional Be My Guest show. The trial judge also stressed that no one would expect that Chan would perform in the additional Be My Guest show free of charge, and that for this reason TVB must have known that Olympian City would pay Chan remuneration. In our view, the staff members who produced the additional Be My Guest show certainly knew that Chan would perform in the show, but those staff members were Chan’s subordinates and they had no duty to ask Chan whether he would accept remuneration for his performance in the additional Be My Guest show and whether, if he accepted any remuneration, he had obtained permission from Lee Po-on. They would not know whether Chan had declared to Lee Po-on that he would perform in the additional Be My Guest show and further, they could not possibly know whether Chan had applied to Lee Po-on for permission to accept remuneration for his performance in that show.", "zh-HK": "原審法官強調陳演出“附加志雲飯局”一事一直是公開的，而該節目製作過程亦牽涉無綫電視的不同部門，因此無綫電視必然知悉陳會演出“附加志雲飯局”。原審法官亦強調沒有人會認為陳會免費演出“附加志雲飯局”，故無綫電視必定知悉奧海城會支付酬金給陳。本庭認為，“附加志雲飯局”的製作人員當然會知悉陳會演出該節目，但該些製作人員都是陳的下屬，他們沒有責任向陳查詢他是否會就演出“附加志雲飯局”收取報酬及如他有收取報酬，他是否獲得李寶安的許可。他們亦不會知悉陳是否有向李寶安報告會演出“附加志雲飯局”一事，更不可能知悉陳是否有向李寶安申請許可就演出該節目收取報酬。" } }, { "doc_id": 41, "seg_id": 159, "translation": { "en": "The senior officer of TVB responsible for supervising Chan was Lee Po-on. He gave evidence that before the event he simply did not know Chan would perform in the additional Be My Guest show, and that it was not until the night of the live broadcast of the show that he was aware that Chan performed in the show. He strongly denied that he knew Chan would accept remuneration for his performance in the additional Be My Guest show.", "zh-HK": "負責陳的無綫電視上司是李寶安。他作供時表示他事前根本不知悉陳會演出“附加志雲飯局”，而他是在直播當晚才知悉陳的演出。他更極力否認他知悉陳會收取酬金演出“附加志雲飯局”。" } }, { "doc_id": 41, "seg_id": 160, "translation": { "en": "In his evidence, Lee Po-on said that after the event, in early January 2010, he got wind of the fact that Olympian City paid a sum of money to a third party in connection with the publicity activities in question, and that therefore he instructed an accounting officer of TVB to ask Olympian City in a roundabout way whether they had paid extra money to IEAP in connection with the publicity activities. A manager of Olympian City, Mr Au Kwok-hang, confirmed that he had received a telephone call from a staff member of TVB’s accounting department, who asked him matters about the payment of $160,000 by Olympian City to IEAP. The above-mentioned evidence has not been challenged and it reveals that Lee Po-on did not know Chan would accept remuneration from Olympian City for his performance in the additional Be My Guest show.", "zh-HK": "李寶安作供時指他事後在2010年1月初收到消息顯示奧海城就有關的宣傳活動向第三者支付了金錢。因此他指派無綫電視一名會計員以“旁敲側擊”的方法向奧海城查詢是否就有關宣傳活動支付了額外金額給思潮製作。奧海城的經理區國恆先生確認曾收過無綫電視會計部職員的電話，向他查詢奧海城支付16萬元給思潮製作的事宜。上述未受挑戰的證據都顯示李寶安不知悉陳會就演出“附加志雲飯局”向奧海城收取酬金。" } }, { "doc_id": 41, "seg_id": 161, "translation": { "en": "In fact, at the trial the defence did not put to Lee Po-on that he knew beforehand that Chan would perform in the additional Be My Guest show and that Chan would accept remuneration from Olympian City for his performance.", "zh-HK": "事實上原審時，辯方沒有向李寶安指他事前知悉陳會演出“附加志雲飯局”及陳會就該演出向奧海城收取報酬。" } }, { "doc_id": 41, "seg_id": 162, "translation": { "en": "Chan’s acceptance of remuneration for his performance in the additional Be My Guest show was the first time he had ever accepted any remuneration for his doing an act in relation to TVB’s business. A clear and definite company policy was in force in TVB, according to which an employee would not be allowed to accept any cash or gift in excess of $500. The trial judge’s findings that Lee Po-on had acquiesced in Chan’s acceptance of the remuneration for his performance in the additional Be My Guest show, that TVB would have no objection to Chan’s acceptance of the remuneration for his performance in the additional Be My Guest show, and that Lee Po-on’s evidence that if Chan applied to him, he would not agree was contrary to common sense and illogical were not only devoid of any evidential basis, but were also at variance with the undisputed evidence.", "zh-HK": "陳收取報酬演出“附加志雲飯局”是他首次就和無綫電視業務有關的作為收取報酬。無綫電視有明確公司政策不會批准僱員收取任何超過500元的現金禮物。原審法官指李寶安默許陳收取報酬演出“附加志雲飯局”；無綫電視不會反對陳收取報酬演出“附加志雲飯局”；及李寶安表示即使陳向他申請，他也不會答應的說法是有違常理及不合邏輯的等等裁決，不但完全沒有證據基礎支持，更是不符合無爭議的證據。" } }, { "doc_id": 41, "seg_id": 163, "translation": { "en": "Even if TVB or Lee Po-on ought to have known that Chan would perform in the additional Be My Guest show, it does not follow that they acquiesced in Chan’s acceptance of remuneration in circumstances where the requirements laid down in section 9(5) of the Ordinance were not met. It is possible that Chan could perform in the additional Be My Guest show without charging any remuneration on account of the relationship with Olympian City. In his evidence, Chan Ching-cheong said that whether Chan would receive any income for any performance was dependent on many considerations, for example, he performed free of charge because he wished to boost his personal fame. Not only that Chan did not make any application to TVB before or after his performance, but he had never mentioned to TVB before or after the event that he had accepted any remuneration. Under these circumstances, we consider that Chan could not hold that TVB would acquiesce in his acceptance of a secret reward without obtaining any permission, in violation of the Ordinance, by solely relying on the ground that TVB ought to have known that he would perform in the additional Be My Guest show. We have to stress again that the additional Be My Guest show was the first occasion on which Chan accepted remuneration from a third party for his doing an act in relation to TVB’s business. The argument that TVB acquiesced in his doing so is not supported by any evidence at all.", "zh-HK": "即使無綫電視或李寶安應該知悉陳會演出“附加志雲飯局”，亦不表示他們默許陳在沒有符合《條例》第9(5)條的情況下，收取酬勞。陳是可以因為和奧海城的關係而免費演出“附加志雲飯局”。陳禎祥作供時有說過陳表演是否有收入要視乎很多考慮，例如他希望提升個人的聲譽而免費演出。陳不但在表演前後都沒有向無綫電視作出申請，他事前事後都沒有向無綫電視提及收了酬金。在上述情況下，本庭認為陳不能單以無綫電視理應知悉他會就演出“附加志雲飯局”便認定無綫電視會默許他在違反《條例》，即沒有獲得許可的情況下收取秘密報酬。本庭要再強調，“附加志雲飯局”是陳第一次就和無綫電視業務有關的作為向第三者收取酬金，而指無綫電視默許他這樣做的說法是完全沒有證據支持的。" } }, { "doc_id": 41, "seg_id": 164, "translation": { "en": "However Chan and Tseng phrased and embellished their grounds of defence, their primary ground of defence boils down to the assertion that TVB “must have known of”, “permitted” or “acquiesced in” Chan’s acceptance of the $112,000 as remuneration for his performance in the additional Be My Guest show from Olympian City through IEAP. In the final analysis, the “knowledge”, “permission” or “acquiescence” relied on by Chan and Tseng points to the “permission” given by TVB in respect of Chan’s acceptance of the $112,000 in question. However, in order to legitimize an act of accepting an advantage by relying on the permission given by the principal, the agent must follow the procedures prescribed in the Ordinance, ie the principal’s permission must be applied for and obtained before the advantage is accepted, or applied for and obtained as soon as possible after the advantage has been accepted. If the court readily allows an act of accepting a secret reward to be legitimized by a permission which fails to meet the requirements laid down in the Ordinance, then the clear legislative intent will be defeated.", "zh-HK": "不論陳和叢如何形容或修飾他們的答辯理由，他們的基本答辯理由都是無綫電視“知道”、有“許可”或“默許”陳就演出“附加志雲飯局”透過思潮製作向奧海城收取112,000元酬金。陳和叢所稱的“知道”、“許可”或“默許”最終都是指無綫電視“許可”陳收取涉案的112,000元。但要以主事人的許可來將收取利益的行為合法化，代理人必需履行《條例》定下的程序，即在收取利益前申請及取得，或在收取利益後盡快申請及取得，主事人的許可。如法庭輕易容許一些未符合《條例》規定的許可來將一些收取秘密報酬的行為合法化，則會將明確的立法意圖毀於無形。" } }, { "doc_id": 41, "seg_id": 165, "translation": { "en": "We agree that permission and reasonable excuse are two separate defences provided for by the Ordinance. We also agree that reasonable excuse is wider in scope than permission. However, when an agent claims that his principal would “permit” or “allow” him to do certain things, or “acquiesce in” his doing certain things, he must demonstrate that he has done all he could to comply with what the law requires of him, so as to legitimize his act of accepting an advantage; otherwise, the court will not find that he has a reasonable excuse to accept the advantage which is related to his principal’s business. Under some circumstances, it is possible that an agent who does not have his principal’s permission but accepts an advantage which is related to his principal’s business can use reasonable excuse as his defence. Take for example, an agent who has from time to time applied to his principal for permission to accept an advantage on account of his doing an act in relation to his principal’s business, and to whom the principal has always granted permission, will reasonably believe that under the same circumstances he can obtain his principal’s permission. However, on one occasion, when the agent applied for permission from his principal pursuant to section 9(5)(b) of the Ordinance after he accepted an advantage, his principal, without informing him of any change, suddenly, for no reason, refuses to give him permission. The agent cannot legitimize his acceptance of the advantage by the permission provided in the Ordinance, but it is highly likely that he can successfully convince the court that he has a reasonable excuse and thereby legitimizing his acceptance of the advantage.", "zh-HK": "本庭同意“許可”和“合理辯解”是《條例》列明兩個獨立的答辯理由。本庭亦同意“合理辯解”涵蓋的範圍較“許可”的範圍廣闊。但當一名代理人以其主事人會“許可”或“默許”或“批准”他這樣做時，他必須證明他有盡量履行法例對他的要求，將其收取利益的行為合法化，否則法庭不會認為他會有“合理辯解”就主事人的業務收取利益。某些情況下，一名代理人未有取得其主事人的許可而就其主事人的業務收取利益時，他或有可能以“合理辯解”作為免責理由。例如一名代理人一直有向主事人就和其主事人業務有關的作為申請許可收取利益，而其主事人一向都給予許可，該名代理人會合理地相信在相同情況時，他會取得其主事人的許可。但在有關的一次，該名代理人在收取到利益後根據《條例》第9(5)(b)條向主事人申請許可，但其主事人卻在沒有通知他有改變的情況下，突然無故拒絕給予許可。該名代理人不能根據《條例》列明的“許可”將其收取利益的行為合法化，但他極可能會成功說服法庭他有“合理辯解”，令其收取利益的行為合法化。" } }, { "doc_id": 41, "seg_id": 166, "translation": { "en": "In the present case, whether before or after Chan accepted the $112,000 from Olympian City through IEAP, he did not apply to TVB for permission to accept the said advantage. We consider that Chan is not entitled to contend that he had a reasonable excuse for accepting the secret profit of $112,000 in question.", "zh-HK": "在本案，陳透過思潮製作向奧海城收取112,000元前或後，都沒有向無綫電視申請許可，要求獲准收取該利益。本庭認為陳不能強稱他有“合理辯解”收取涉案的112,000元的秘密利益。" } }, { "doc_id": 41, "seg_id": 167, "translation": { "en": "We are not prepared to delve into the issues of whether Chan or Tseng acted dishonestly, whether Chan deliberately conceal his acceptance of advantage from Olympian City for his performance in the additional Be My Guest show, and whether his performance and his acceptance of the advantage conflicted with TVB’s interests. These factors are not elements of the offence which the prosecution must establish. When Chan performed in the additional Be My Guest show, he put on Olympian City stickers. This was what he had to do in order to fulfil one of the conditions stipulated by Olympian City and had nothing to do with TVB. Therefore, the fact that Chan put on Olympian City stickers does not mean that at the material time he was not acting in the capacity of an agent of TVB. Actually, except for the fact that the venue of the performance was different, the nature of Chan’s performance in the additional Be My Guest show was totally the same as that of his previous unpaid performance in the 150 odd episodes of Be My Guest produced by TVB. Chan had no reason at all to think that he could accept the $112,000 in question from Olympian City.", "zh-HK": "對陳或叢是否不誠實行事、是否刻意隱瞞他就演出“附加志雲飯局”向奧海城收取利益；以及他的演出和收取報酬是否與無綫電視有任何利益衝突等等事項，本庭不打算深究。上述因素都並非是控方就有關控罪需要確立的要素。陳演出“附加志雲飯局”時貼上奧海城的貼紙亦只是按奧海城的條件之一行事，與無綫電視無關。因此，陳貼上奧海城的貼紙一事不表示他當時並非是以無綫電視代理人身份行事。事實上除了演出地點不同外，陳演出“附加志雲飯局”和他以往無酬演出過無綫電視製作的150多集「志雲飯局」的性質完全相同。陳根本沒有理由認為他可向奧海城收取涉案的112,000元。" } }, { "doc_id": 41, "seg_id": 168, "translation": { "en": "The burden was on Chan and Tseng to prove, on the balance of probabilities, that Chan had a reasonable excuse to accept the remuneration of $112,000 from Olympian City through IEAP. We hold that judging from the facts and the evidence of the case as a whole, neither Chan nor Tseng succeeded in establishing this defence.", "zh-HK": "陳和叢有舉證責任，以相對可能性較高的舉證標準去證明陳有“合理辯解”透過思潮製作向奧海城收取涉案的112,000元酬金。本庭認為以整體的案情及證據而言，陳和叢都不能確立“合理辯解”這答辯理由。" } }, { "doc_id": 41, "seg_id": 169, "translation": { "en": "As for the questions raised by the Secretary, our answers are as follows:", "zh-HK": "就司長提出的問題，本庭的答案如下：" } }, { "doc_id": 41, "seg_id": 170, "translation": { "en": "Question[1](a)“Yes”", "zh-HK": "問題[1](a)“是”" } }, { "doc_id": 41, "seg_id": 171, "translation": { "en": "[1](b)“Yes”", "zh-HK": "[1](b)“是”" } }, { "doc_id": 41, "seg_id": 172, "translation": { "en": "Question[2](a)“Yes”", "zh-HK": "問題[2](a)“是”" } }, { "doc_id": 41, "seg_id": 173, "translation": { "en": "[2](b)“Yes”", "zh-HK": "[2](b)“是”" } }, { "doc_id": 41, "seg_id": 174, "translation": { "en": "[2](c)“Yes”", "zh-HK": "[2](c)“是”" } }, { "doc_id": 41, "seg_id": 175, "translation": { "en": "[2](d)“Yes”", "zh-HK": "[2](d)“是”" } }, { "doc_id": 41, "seg_id": 176, "translation": { "en": "Question[3](a)“Yes”", "zh-HK": "問題[3](a)“是”" } }, { "doc_id": 41, "seg_id": 177, "translation": { "en": "[3](b)“Yes”", "zh-HK": "[3](b)“是”" } }, { "doc_id": 41, "seg_id": 178, "translation": { "en": "Question[4]“Yes”", "zh-HK": "問題[4]“是”" } }, { "doc_id": 41, "seg_id": 179, "translation": { "en": "In our judgment, on the basis of the evidence in this case, the only reasonable outcome is that the trial judge should find Chan and Tseng guilty of charge 1, namely conspiracy for an agent to accept an advantage.", "zh-HK": "本庭認為，根據本案的證據，唯一合理的結果是原審法官應裁定陳和叢第一項串謀使代理人接受利益罪罪名成立。" } }, { "doc_id": 41, "seg_id": 180, "translation": { "en": "We shall remit the case to the trial judge and order him to find Chan and Tseng guilty of the charge in question in accordance with our directions and to sentence them in respect of the charge.", "zh-HK": "本庭將案件發還原審法官，並下令他根據本庭的指示裁定陳和叢該項控罪罪名成立及就該控罪作出判刑。" } }, { "doc_id": 41, "seg_id": 181, "translation": { "en": "Mr Eric Kwok, SC and Mr Felix Tam, Acting Senior Public Prosecutor, instructed by the Secretary for Justice, for the Appellant.", "zh-HK": "上訴人：由律政司委派資深大律師郭棟明及署理高級檢控官談立豐代表。" } }, { "doc_id": 41, "seg_id": 182, "translation": { "en": "Mr Joseph Tse, SC and Mr Charles J Chan, instructed by Messrs Ivan Tang & Co, for the 1st Respondent.", "zh-HK": "第一答辯人：由鄧耀榮律師行轉聘資深大律師謝華淵及大律師陳永豪代表。" } }, { "doc_id": 41, "seg_id": 183, "translation": { "en": "Ms Maggie Wong, Mr Derek Chan and Mr Samuel Sung, instructed by Messrs Ivan Tang & Co, for the 2nd Respondent.", "zh-HK": "第二答辯人：由鄧耀榮律師行轉聘大律師黃珮琪、大律師陳政龍及大律師宋紀源代表。" } }, { "doc_id": 42, "seg_id": 1, "translation": { "en": "Hon Madam Justice PANG (giving the judgment of the Court):", "zh-HK": "高等法院原訟法庭法官彭寶琴頒發上訴法庭判案書：" } }, { "doc_id": 42, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 42, "seg_id": 3, "translation": { "en": "The Applicant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, Laws of Hong Kong.  In the Particulars of Offence, it was alleged that the Applicant, on or around 8 January 2018, together with TSANG Yiu Fai (transliteration) and other persons unknown, unlawfully trafficked in 497 grammes of powder containing 424 grammes of ketamine.", "zh-HK": "申請人被控一項販運危險藥物罪，違反香港法例第 134 章《危險藥物條例》第4(1)(a)及(3)條。控罪詳情指申請人於或約於2018年1月8日連同曾耀輝及其他身份不詳的人，非法販運內含424克氯胺酮的497克粉末。" } }, { "doc_id": 42, "seg_id": 4, "translation": { "en": "The Applicant pleaded not guilty to the charge and the case was tried before Deputy High Court Judge Anthony Kwok (the Trial Judge) sitting with a jury.", "zh-HK": "申請人否認控罪，案件由高等法院原訟法庭暫委法官郭啟安（原審法官）連同陪審團審理。" } }, { "doc_id": 42, "seg_id": 5, "translation": { "en": "On 28 February 2019, the jury found the Applicant guilty of the offence by a verdict of 5 to 2. On 15 March 2019, the Trial Judge sentenced the applicant to a term of imprisonment of eight years and eight months.", "zh-HK": "陪審團於2019年2月28日以5比2裁定申請人罪名成立。2019年3月15日，原審法官判處申請人8年8個月監禁。" } }, { "doc_id": 42, "seg_id": 6, "translation": { "en": "The Applicant now applies for leave to appeal against his conviction.", "zh-HK": "申請人不服定罪，提出上訴許可申請。" } }, { "doc_id": 42, "seg_id": 7, "translation": { "en": "The Prosecution Case", "zh-HK": "控方案情" } }, { "doc_id": 42, "seg_id": 8, "translation": { "en": "During the trial, the prosecution case was, for the most part, including the Applicant’s video-recorded interview under caution, the Applicant’s phone communication records and the testimonies of five witnesses called by the prosecution, not disputed.", "zh-HK": "審訊時，大部份的控方案情不受爭議，包括申請人在警誡下的錄影會面紀錄、申請人的電話通訊紀錄及控方傳召的5 名證人的證供。" } }, { "doc_id": 42, "seg_id": 9, "translation": { "en": "In short, on 5 January 2018, during an X-ray scan on express air cargo at the Customs import cargo examination compound of the Hong Kong International Airport, a Customs Officer found a suspicious parcel sent to Hong Kong from Thailand transiting through Singapore. On the same day, the Customs Officer opened the parcel and found 15 handbags inside. Each handbag contained a packet of crystalline substance, which, upon chemical examination, was confirmed to be the subject dangerous drug in the case. The Customs Officer then restored the parcel to its original state. At a later time on that day, another Customs Officer delivered the parcel to a secretarial company located at Hoi Yuen Road, Kowloon according to the address on the parcel. The secretarial company received the parcel on behalf of a client, Mr YAU (transliteration) of Jenny’s Fashion Limited.", "zh-HK": "簡而言之，海關關員於2018年1月5日在香港國際機場海關入口驗貨場為空運速遞貨物作X光掃瞄期間，發現一個可疑包裹，該包裹由泰國寄出，經新加坡轉運香港。同日，海關關員打開包裹，發現內有15個手袋，每個手袋都藏有1包晶狀物體，經化驗後證實是涉案毒品。海關關員繼而將該包裹還原。當日較後時間，另一名海關關員根據包裹上的地址將包裹送到一間位於九龍開源道的秘書公司，該秘書公司是代客戶Jenny’s Fashion Limited的丘先生收取包裹的。" } }, { "doc_id": 42, "seg_id": 10, "translation": { "en": "Around 2:40 p.m. on 8 January 2018, the Applicant, having signed for and collected the parcel in question at the secretarial company, was immediately arrested by a Customs Officer in the corridor outside the door. The Applicant stated under caution that someone instructed him to collect that parcel, and he could earn a reward of several hundred dollars, but he had no knowledge of the contents of the parcel.", "zh-HK": "2018年1月8日約下午2時40分，申請人在該秘書公司簽收及成功領取了包裹。申請人隨即在門外走廊被一名海關關員拘捕。申請人在警誡下表示有人指使他去接收該包裹，而他可以賺取數百元的報酬，但他對包裹內的物品並不知情。" } }, { "doc_id": 42, "seg_id": 11, "translation": { "en": "The Applicant later agreed to let the Customs Officer check the communication records and message records on his mobile phone, and to assist the Customs Officer in conducting a controlled delivery operation. During the enquiries, the Applicant’s mobile phone rang. It was a call from a person named “Chung Loi (transliteration)” using WeChat, but the Applicant told the Officer that “Chung Loi” had nothing to do with the case. However, “Chung Loi” kept on calling, and six calls in total were made within a short time, but the Applicant did not answer any of them. Eventually, shortly after 3:07 p.m. that day, the Applicant told the Customs Officer that “Chung Loi” was the person who instructed him to go to the secretarial company to collect the parcel.", "zh-HK": "申請人其後同意讓海關關員檢查他手提電話內的通訊紀錄及訊息紀錄，又同意協助海關關員進行監控派遞行動。調查期間，申請人的手提電話響起，是一名叫「重來」的人用微信致電，但申請人向關員表示「重來」跟案件無關。然而，「重來」繼續致電，並在短時間內先後六次來電，但申請人均沒有接聽。最終，大約在當日下午3時07分後，申請人才告訴海關關員「重來」就是指使他往秘書公司接收包裹的人。" } }, { "doc_id": 42, "seg_id": 12, "translation": { "en": "During the controlled delivery, “Chung Loi” again called the Applicant with WeChat for a number of times. He kept giving instructions to the Applicant and hurried the Applicant into handing over the parcel to the contact person. Meanwhile, the contact person told the Applicant repeatedly over the phone that there were police vehicles near the location intended for handover, and therefore he was unwilling to meet the Applicant. Having dawdled for a while, the Applicant and the contact person eventually agreed to meet near Yuet Wah Street, Kwun Tong for the handover.", "zh-HK": "在進行監控派遞期間，「重來」再多次用微信致電申請人，並不停對申請人作出指示及催促申請人將包裹交到接洽人手上。另一方面，接洽人多次在與申請人通話時表示，交收地點附近有警車，所以不願意與申請人見面。幾番拖拉後，申請人與接洽人終同意在觀塘月華街附近交收。" } }, { "doc_id": 42, "seg_id": 13, "translation": { "en": "Around 5:50 p.m. on the same day, when the Applicant handed the parcel to the contact person, a Customs Officer arrested the contact person, who was the person named in the indictment, TSANG Yiu Fai.", "zh-HK": "同日下午約5時50分，當申請人將包裹交到接洽人手上時，海關關員便將接洽人拘捕，這人便是公訴書上所列的曾耀輝。" } }, { "doc_id": 42, "seg_id": 14, "translation": { "en": "On 9 January 2018, a video-recorded interview was conducted between the Applicant, in his mother’s company, and a Customs Officer. In the video-recorded interview, the Applicant asserted that he had no knowledge at all of the dangerous drug in the parcel. The Applicant also stated that he was a Form 6 student and he would work part-time after school. In December 2017, he came to know “Chung Loi” from a post in an online column about part-time work. “Chung Loi” told the Applicant that transportation work could be arranged at an hourly rate of several hundred dollars, without specifying the types of goods. Although the Customs Officer enquired repeatedly of the Applicant about the records of messages and communications between the Applicant and “Chung Loi”, he explained that despite a number of contacts with “Chung Loi” using WeChat before the material day, namely 8 January 2018, eventually no work was carried out due to problems of timing and arrangements and so on. It was the first time that the Applicant had done any real work for “Chung Loi” on 8 January 2018.", "zh-HK": "2018年1月9日，申請人在其母親陪同下，與海關人員進行了錄影會面。申請人在錄影會面中堅稱自己對包裹內的毒品全不知情。申請人又表示，他是一名中六學生，課餘會擔任兼職；他於2017年12月從網上兼職專欄的一篇貼文認識「重來」。「重來」有向申請人表示可安排搬運工作，時薪有數百元，但沒有清楚說明物品的種類。雖然海關人員多次以申請人及「重來」的訊息及通訊紀錄查問申請人，但他解釋，雖然在案發日（即2018年1月8日）前曾多次與「重來」以微信聯絡，但因時間及安排等問題，最終並沒有落實工作。2018年1月8日是申請人第一次真正替「重來」辦事。" } }, { "doc_id": 42, "seg_id": 15, "translation": { "en": "The Defence Case", "zh-HK": "辯方案情" } }, { "doc_id": 42, "seg_id": 16, "translation": { "en": "The Applicant elected to give evidence in court, and adopted what he said during the video-recorded interview. Under cross-examination, the Applicant at last admitted that he had worked for “Chung Loi” in December 2017. The Applicant explained that he did not deliberately lie to the investigating officer in the video-recorded interview, just that his mind was in utter confusion at that time.", "zh-HK": "申請人選擇出庭作供，並採納他在錄影會面的說法。盤問下，申請人終承認於2017年12月曾替「重來」工作。申請人解釋他並不是故意在錄影會面中向調查人員說謊，只是當時他腦海一片混亂。" } }, { "doc_id": 42, "seg_id": 17, "translation": { "en": "Apart from the Applicant, the defence also called a social worker of the Applicant’s school as a character witness.", "zh-HK": "除申請人外，辯方亦傳召了申請人的學校社工作品格證人。" } }, { "doc_id": 42, "seg_id": 18, "translation": { "en": "The Crucial Issue of the Trial", "zh-HK": "原審的關鍵議題" } }, { "doc_id": 42, "seg_id": 19, "translation": { "en": "As can be seen from the above, the only issue in this case was whether the Applicant knew at the time of the offence that the parcel contained a dangerous drug.", "zh-HK": "從以上可見，本案的唯一爭議是案發時申請人是否知悉包裹內藏有毒品。" } }, { "doc_id": 42, "seg_id": 20, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 42, "seg_id": 21, "translation": { "en": "Mr Eric Cheung, Solicitor Advocate for the Applicant, put forward the following grounds of appeal:", "zh-HK": "代表申請人的張達明訟辯律師提出以下的上訴理由：" } }, { "doc_id": 42, "seg_id": 22, "translation": { "en": "(1)The Trial Judge erred in failing to give proper directions to the jury in respect of the “uncharged acts”;", "zh-HK": "原審法官錯誤地沒有就「不被控告的行為」向陪審團作出恰當指引；" } }, { "doc_id": 42, "seg_id": 23, "translation": { "en": "(2)The Trial Judge did not tell the jury that regarding the element of knowledge of the dangerous drug in the case, “suspicion” was not enough;", "zh-HK": "原審法官沒有告知陪審團關於對涉案毒品是否知情這個元素，「懷疑」是不足夠的；" } }, { "doc_id": 42, "seg_id": 24, "translation": { "en": "(3) The Trial Judge did not point out to the jury that they might not rely on what happened during the controlled delivery to draw an inference as to whether the Applicant knew the parcel contained a dangerous drug; and", "zh-HK": "原審法官沒有向陪審團指出不能夠依賴監控派遞過程中發生的事情以推論申請人是否知悉包裹內藏有毒品；及" } }, { "doc_id": 42, "seg_id": 25, "translation": { "en": "(4) The prosecution wrongly assumed “1258594120” shown in the Applicant’s call records to be another person’s phone number, and as a result, unfairly cross-examined the Applicant in this regard.", "zh-HK": "控方錯誤假設申請人的通話紀錄內所顯示的“1258594120”為他人的電話號碼，因而不公平地以此盤問申請人。" } }, { "doc_id": 42, "seg_id": 26, "translation": { "en": "Discussion", "zh-HK": "考慮" } }, { "doc_id": 42, "seg_id": 27, "translation": { "en": "Ground of Appeal 1: “Uncharged acts”:", "zh-HK": "上訴理由一：「不被控告的行為」" } }, { "doc_id": 42, "seg_id": 28, "translation": { "en": "In this case, the prosecution did not have any direct evidence to prove that the Applicant knew at the time he received the parcel that it contained a dangerous drug. As the trial judge pointed out in the summing-up:", "zh-HK": "在本案中，控方並沒有任何直接證據證明申請人在接收包裹時知悉包裹內藏有毒品。正如原審法官在導詞中指：" } }, { "doc_id": 42, "seg_id": 29, "translation": { "en": "“Well, actually, in the present case, how can the prosecution prove that the defendant knew? Well, when there is no direct evidence to directly prove the offence, the prosecution has to rely on circumstantial evidence to prove that the defendant committed the offence. In a nutshell, the prosecution is relying on those circumstances relating to the offence and the defendant as evidence. According to the prosecution, if the evidence is considered piece by piece together, the conclusion will definitely be that the defendant knew there was a dangerous drug in the box.”", "zh-HK": "「咁其實今單案件控方點樣可以證明被告人係知道呀？咁冇直接證明罪行嘅直接證據嚟講，控方就要倚賴一啲環境證據去證明被告犯咗呢啲罪行喇。簡單嚟講，控方係倚賴嗰啲罪行同埋被告有關嘅種種情況作為證據嘅。根據控方講，如果呢啲證據將佢哋逐件逐件咁一併考慮嘅話，個結論就肯定被告就係知道嗰個盒裡面係有毒品嘅。」" } }, { "doc_id": 42, "seg_id": 30, "translation": { "en": "Therefore, what evidence the jury actually adopted as the relevant circumstantial evidence in drawing an inference of guilt is indeed important.", "zh-HK": "因此，陪審團究竟採納了哪些證據作為相關的環境證據，從而作出有罪的推論，實為重要。" } }, { "doc_id": 42, "seg_id": 31, "translation": { "en": "It is worth noting that when cross-examining the Applicant, the prosecution not only explored the previous work relationship between the Applicant and “Chung Loi”, but also raised the following questions near the end of the cross-examination:", "zh-HK": "值得注意的是，控方在盤問申請人時，不但探討申請人與「重來」過往的工作關係，並在盤問接近尾聲時提出以下說法：" } }, { "doc_id": 42, "seg_id": 32, "translation": { "en": "“Q: The type of work that ‘Chung Loi’ arranged for you was absolutely not as simple as transportation. Do you agree?", "zh-HK": "「問：『重來』安排畀你嗰個行業絕對唔係搬運咁簡單，你同唔同意？" } }, { "doc_id": 42, "seg_id": 33, "translation": { "en": "Judge: That is to say …", "zh-HK": "官：呢個係講…" } }, { "doc_id": 42, "seg_id": 34, "translation": { "en": "A: That is, looking at it now …", "zh-HK": "答：即係根據番而家去睇…" } }, { "doc_id": 42, "seg_id": 35, "translation": { "en": "Judge: Now, objectively speaking, looking at it retrospectively, everyone knows it was not that simple, but I want - - I think the question is when he/she asked you to work for him/her at the beginning, did you know that the work he/she asked you to do would not be as simple as transportation, …", "zh-HK": "官：而家講客觀，事後睇起上嚟就大家知係嘅，唔係咁簡單喇，但係我想--我諗條問題都係話你知唔知道當初佢叫你幫佢工作嘅時候佢都叫你做嘅工作就唔會係搬運咁簡單，…" } }, { "doc_id": 42, "seg_id": 36, "translation": { "en": "Mr Lui (transliteration): Right.", "zh-HK": "雷先生：係。" } }, { "doc_id": 42, "seg_id": 37, "translation": { "en": "Judge: … I think it is more accurate to put the question this way.", "zh-HK": "官：…我諗咁樣比較準確啲呀條問題咁就。" } }, { "doc_id": 42, "seg_id": 38, "translation": { "en": "Mr Lui:Fine.", "zh-HK": "雷先生：好。" } }, { "doc_id": 42, "seg_id": 39, "translation": { "en": "A: That is…", "zh-HK": "答：即係…" } }, { "doc_id": 42, "seg_id": 40, "translation": { "en": "Judge:That is, you knew from the very beginning that the transportation or the work of moving stuff he asked you to do for him/her was not that pure, that simple.", "zh-HK": "官：即係你一早知佢叫你幫佢手做搬運或者搬嘢呢啲工作就唔係咁純粹咁簡單嘅。" } }, { "doc_id": 42, "seg_id": 41, "translation": { "en": "A: Disagree.", "zh-HK": "答：唔同意。" } }, { "doc_id": 42, "seg_id": 42, "translation": { "en": "Q: Having worked for ‘Chung Loi’ for the entire Christmas holiday, you definitely knew the goods that you handled were dangerous drugs. Do you agree?", "zh-HK": "問：為『重來』工作咗整整一個聖誕假期，你一定知道你處理緊嘅貨物就係毒品，你同唔同意？" } }, { "doc_id": 42, "seg_id": 43, "translation": { "en": "A: Disagree.”", "zh-HK": "答：唔同意。」" } }, { "doc_id": 42, "seg_id": 44, "translation": { "en": "In the closing submission, the prosecution put forward the following argument:", "zh-HK": "在結案陳詞時，控方又作出這樣的論述：" } }, { "doc_id": 42, "seg_id": 45, "translation": { "en": "“Taking all the evidence of this case into consideration, it is the prosecution case that the only reasonable inference is that before collecting the parcel, it was already very clear to the defendant that there would be a dangerous drug in the parcel, because the defendant knew very well what he joined during the Christmas holiday of 2017 was the dangerous drug trade. This is the prosecution’s submission.”", "zh-HK": "「考慮晒本案所有嘅證據，控方嘅講法係唯一合理嘅推論，就係被告人收包裹之前已經非常清楚包裹入面將會有嘅係毒品，因為被告人好清楚佢喺2017年聖誕假加入咗嘅就係毒品嘅行業。呢個係控方嘅陳詞。」" } }, { "doc_id": 42, "seg_id": 46, "translation": { "en": "In other words, the prosecution was inviting the jury to consider the Applicant’s previous act of trafficking in a dangerous drug outside the scope of the charge, and to infer from it that the Applicant definitely knew that the parcel he collected on the material day contained a dangerous drug.", "zh-HK": "換言之，控方是邀請陪審團考慮申請人在控罪以外的過往販毒行為，從而推論申請人必然知道涉案當日所收取的包裹藏有毒品。" } }, { "doc_id": 42, "seg_id": 47, "translation": { "en": "However, although the Applicant admitted that he did work for “Chung Loi” during the Christmas holiday before the incident in this case took place, he claimed that it only involved transportation work. In this regard, we only have what the Applicant himself said. There was no evidence in the case to prove that the Applicant in fact trafficked in a dangerous drug for “Chung Loi” during that time.", "zh-HK": "然而，申請人雖然在盤問下承認於案發前的聖誕假期曾替「重來」工作，但他聲稱該些只是涉及搬運的工作，而除了申請人自己的說法外，案中並沒有任何證據證明申請人在該段時間其實是替「重來」販運毒品。" } }, { "doc_id": 42, "seg_id": 48, "translation": { "en": "Under such circumstances, Mr Eric Cheung pointed out that the Trial Judge should not have allowed the jury to make wild speculation when there was no evidence, and that the jury should have been specifically directed that they might not rely on the “uncharged acts” to draw an inference of guilt.", "zh-HK": "在此情況下，張律師指出，原審法官不應容許陪審團在沒有證據時胡亂猜測，而應明確向陪審團發出指引，指示他們不能依賴「不被控告的行為」作出有罪的推論。" } }, { "doc_id": 42, "seg_id": 49, "translation": { "en": "Mr Eric Cheung continued to say that instead of reminding the jury of this, the Trial Judge, by way of “reversed logic”, directed the jury that based on the fact that the parcel on the material day contained a dangerous drug, an inference might be drawn as to whether the work which the applicant previously did to assist “Chung Loi” definitely involved a dangerous drug. The relevant part of the summing-up related to this complaint is as follows:", "zh-HK": "張律師續指，原審法官不但沒有這樣提醒陪審團，反而用「顛倒邏輯」的方式，指引陪審團可以基於案發當日包裹內藏有毒品一事，推論申請人之前協助「重來」所擔任的工作是否亦必然涉及毒品。以下是關於這個投訴的導詞相關部份：" } }, { "doc_id": 42, "seg_id": 50, "translation": { "en": "“The prosecution asked you to infer … the prosecutor said, having worked for him/her for the entire holiday, would it be possible that you still don’t know he/she is a drug dealer? … or based on this occasion on 8 January, you may infer that he/she was definitely talking about dangerous drugs. What else if not talking about dangerous drugs? Well, you have to think whether the prosecution’s evidence can make you believe, or even exclude other possibilities?”", "zh-HK": "「控方就叫你推論…主控官話成個假期去幫佢做嘢，你仲唔知道佢係做毒犯？…定係話基於今次呢個1 月8號你哋可以推斷番話佢梗係講毒品喇，唔講毒品仲講咩嘢呢？咁你哋要諗喇，控方嘅證據係咪能夠令到你哋相信，甚至乎係排除其他嘅可能性呢？」" } }, { "doc_id": 42, "seg_id": 51, "translation": { "en": "In HKSAR v Kwok Hing Tony, the Court of Appeal explained how a judge should deal with this kind of evidence concerning “uncharged acts”. The defendant in Kwok Hing Tony was alleged to have committed a number of sexual offences within a period of time, and the evidence given by the prosecution witness in court covered “uncharged acts”. The Court of Appeal pointed out in the judgment that in certain cases, evidence of “uncharged acts” is admissible, but the judge must specifically remind the jury that firstly they have to be sure that the acts concerned indeed took place, and secondly, even if the acts have been established, the jury may not infer from such evidence that the defendant had committed similar offences, or that he is a person with a propensity to commit an offence.", "zh-HK": "就法官應如何處理「不被控告的行為」這一類證據而言，上訴法庭曾在香港特別行政區 訴 郭慶一案作出闡述。郭慶一案的被告人被指控於一段時間內干犯多項性罪行，而控方證人的庭上證供包括「不被控告的行為」。上訴法庭於判詞中指出，在某些案件中，「不被控告的行為」可被接納為呈堂證據，但法官必須特別提醒陪審團，他們首先需要肯定有關行為確為事實，其次，縱使有關行為獲得確立，陪審團亦不可以基於該類證據而推斷被告人曾干犯同類罪行或是一個有犯罪傾向的人。" } }, { "doc_id": 42, "seg_id": 52, "translation": { "en": "Similarly, in HKSAR v Cheung Kim Shing, the Court of Appeal cited Kwok Hing Tony and pointed out that the evidence as to whether the applicant in that case did traffic in dangerous drugs on other occasions in the past was, to the applicant in that case, of prejudicial effect which far outweighed its probative value, and therefore it should be excluded and should not be adduced in court. In any event, even if such evidence is admissible, the judge should nonetheless direct the jury that they may not based on such evidence infer that the defendant would have committed similar offences, or that he has a propensity to commit an offence.", "zh-HK": "同樣，在HKSAR v Cheung Kim Shing一案，上訴法庭引用郭慶一案指出，該案的申請人過往是否在其他場合販運毒品的證據，對該案的申請人而言，損害性遠超於舉證價值，因而應被排除，不應呈堂，但無論如何，就算該項證據可被接納呈堂，法官亦應指示陪審團不能因此推斷申請人會干犯類似的罪行或有犯罪傾向。" } }, { "doc_id": 42, "seg_id": 53, "translation": { "en": "The Court of Appeal also pointed out in HKSAR v Wong Hei Chit, a case in which the prosecution invited the jury to rely on circumstantial evidence to draw an inference of the defendant’s knowledge of dangerous drugs, that since the prosecution alleged that during the time before that specified in the charge, the applicant in that case similarly used the transportation of mobile phones as a smoking screen for drug trafficking, the judge must emphasize to the jury that whether the applicant was involved in any act of drug trafficking at a time other than that specified in the charge was not what they were required to deal with in the case. The jury should also be reminded that they might not rely on the relevant matter when considering whether the offence of drug trafficking in the case was to be established.", "zh-HK": "上訴法庭在控方依賴環境證據邀請陪審團推論被告人對毒品知情的HKSAR v Wong Hei Chit一案中亦指出，由於控方聲稱該案的申請人在控罪所指的前一段期間內，同樣是以運載手提電話作為販毒的煙幕，法官必須向陪審團強調，申請人在控罪以外的時間是否牽涉販毒行為並不是案中他們需要處理的事情，亦應提醒陪審團他們不能夠依賴有關事項考慮涉案的販毒罪是否獲得確立。" } }, { "doc_id": 42, "seg_id": 54, "translation": { "en": "In respect of the present case, as mentioned earlier, the prosecution did not have direct evidence to prove the Applicant’s knowledge of the dangerous drug in the parcel, but instead relied on the previous relationship between the Applicant and “Chung Loi”, the records of the Applicant’s phone communications, the background before and after the Applicant collected the parcel, the Applicant’s own admission that he could earn a reward several times the hourly rate of his previous part-time work, and so on to ask the jury to draw an adverse inference against the Applicant. Therefore, if the jury wrongly reckoned that the prosecution’s allegation that the Applicant had all along been assisting “Chung Loi” in drug trafficking was a matter they might take into consideration, it would obviously be contrary to the relevant legal principle, and it would definitely be unfair to the Applicant, particularly when, as both parties agreed, there was in fact no evidence in this case to prove that the Applicant had trafficked in dangerous drugs for “Chung Loi” before the incident in this case occurred.", "zh-HK": "針對本案，正如前述，控方並無直接證據證明申請人對包裹內的毒品知情，而是依賴申請人與「重來」的過往關係、申請人的電話通訊紀錄、申請人收取包裹的前後背景、以及申請人自己承認可獲得數倍於他以往兼職的時薪酬勞等等要求陪審團作出對申請人不利的推論。因此，如果陪審團錯誤地認為控方指稱申請人過往一直協助「重來」販運毒品的說法，是他們可以考慮的事項，這顯然是有違相關的法律原則，亦必會對申請人構成不公；尤其是雙方同意，本案根本沒有任何證據證明申請人在案發前曾替「重來」販運毒品。" } }, { "doc_id": 42, "seg_id": 55, "translation": { "en": "Therefore, while the evidence of the previous relationship between the Applicant and “Chung Loi” should be admissible as the relevant background, the trial judge indeed should have reminded the prosecution that they might not invite the jury to speculate that the previous work of the two persons involved acts of drug trafficking. Meanwhile, the jury should have been reminded that the relevant background evidence only served to show that the occasion on the material day was not the first contact between the Applicant and “Chung Loi”. Besides, when the prosecution had obviously crossed this line in both the cross-examination of the Applicant and the closing submission, and had proceeded to state implicitly or explicitly that the applicant and “Chung Loi” had all along been trafficking in dangerous drugs, the Trial Judge indeed should have given the jury the appropriate directions in accordance with the above authorities.", "zh-HK": "故此，雖然申請人與「重來」的過往關係這方面的證據，應可作為相關背景呈堂，但原審法官實應提醒控方不能邀請陪審團揣測二人過往的工作是涉及販毒行為，亦應提醒陪審團有關的背景證據，只是用以顯示申請人與「重來」並不是在案發當天才首次接觸；而當控方在盤問申請人及在結案陳詞時明顯超越了這條界線，進而暗示或明言申請人與「重來」一直都在販運毒品時，原審法官實應根據以上案例所指，給予陪審團適當的指引。" } }, { "doc_id": 42, "seg_id": 56, "translation": { "en": "Regrettably, instead of giving the relevant directions in this case, the trial judge in the summing-up as cited above similarly invited the jury to consider whether the applicant had trafficked in dangerous drugs for “Chung Loi” during a period prior to the incident in this case..", "zh-HK": "遺憾地，原審法官在本案中不但沒有作出有關指引，反而在上述導詞部份同樣邀請陪審團考慮申請人是否在過往一段時間內已替「重來」販運毒品。" } }, { "doc_id": 42, "seg_id": 57, "translation": { "en": "Therefore, in respect of Ground of Appeal 1, this Court agrees that the directions that the Trial Judge gave to the jury on the issue in question were inadequate and wrong.", "zh-HK": "因此，針對上訴理由一，本庭同意原審法官就有關議題對陪審團的指引是不足及錯誤的。" } }, { "doc_id": 42, "seg_id": 58, "translation": { "en": "Ground of Appeal 2: “Suspicion” was not enough", "zh-HK": "上訴理由二：「懷疑」並不足夠" } }, { "doc_id": 42, "seg_id": 59, "translation": { "en": "Regarding this ground of appeal, Mr Eric Cheung mainly relied on HKSAR v Lai Wing Huen to show that the trial judge should have given precise directions to the jury in this case, i.e. even if the Applicant suspected that the parcel contained a dangerous drug, it was not enough to prove the element of “knowledge” in the offence of trafficking in a dangerous drug.", "zh-HK": "就這項上訴理由而言，張律師主要依賴香港特別行政區 訴 賴穎萱一案，以顯示原審法官應在本案中明確指引陪審團：縱使申請人懷疑包裹內藏有毒品，這亦不足以證明販毒罪當中「知情」這一元素。" } }, { "doc_id": 42, "seg_id": 60, "translation": { "en": "This Court holds that the circumstances of Lai Wing Huen have unique features and are not comparable to the circumstances of the present case.", "zh-HK": "本庭認為，賴穎萱一案的案情有其獨特之處，並不可與本案案情相提並論。" } }, { "doc_id": 42, "seg_id": 61, "translation": { "en": "Firstly, in Lai Wing Huen, prosecuting counsel emphasized in his final submission that the applicant had already suspected at an earlier stage that the person who asked the applicant to collect the red wine containing a dangerous drug might be a drug trafficker. Prosecuting counsel said, “She did not check, obviously because she knew it was not red wine inside” and “had you harboured even a slight suspicion, or if you should have had reasonable suspicion, you would have opened it to take a look” .", "zh-HK": "首先，在賴案中，主控官在結案陳詞時曾強調，申請人在較早階段已懷疑要求申請人往提取藏有毒品的紅酒的該名人士，可能是販毒者；主控官指「佢冇check，好明顯因為佢知道裡面不是紅酒」及「如果你有少少懷疑，或者你應該有合理懷疑，你都會打開去睇睇」。" } }, { "doc_id": 42, "seg_id": 62, "translation": { "en": "Secondly, the Court of Appeal pointed out in Lai Wing Huen, “Prosecuting counsel appeared to be pointing out to the jury that, from the applicant’s conduct of deliberately not opening the wine bottles to take a look, it could be inferred that the applicant knew what the bottles contained.”", "zh-HK": "其次，上訴法庭在賴案中指「主控看來是向陪審團指出申請人故意不打開看看此行徑，是可用作推斷申請人對酒樽內所藏為何物是知情的。」" } }, { "doc_id": 42, "seg_id": 63, "translation": { "en": "Eventually, the Court of Appeal made the following conclusion in Lai Wing Huen:", "zh-HK": "最終，上訴法庭在賴案作出以下結論：" } }, { "doc_id": 42, "seg_id": 64, "translation": { "en": "“28.The only issue in the present case was whether the applicant had ‘knowledge’.  The judge must make it clear to the jury that mere suspicion was not enough and that the prosecution had to prove that the applicant knew the wine bottles contained a dangerous drug.  In light of the above submission by prosecuting counsel, it was necessary for the judge to clearly point out to the jury that mere failure to examine the wine bottles or ‘to check’ was not by itself equivalent to the applicant having knowledge of what the wine bottles contained.", "zh-HK": "「28. 在本案，唯一的爭議是申請人是否『知情』。法官須明確告知陪審團單單懷疑是不足夠的，控方必須證明申請人知悉酒樽內藏有危險藥物。在主控作出上述陳詞後，法官有必要明確向陪審團指出單單無檢視酒樽、『冇check』此等行為，本身不等同申請人知悉酒樽內所藏為何物。" } }, { "doc_id": 42, "seg_id": 65, "translation": { "en": "29.In the present case, the judge had more than once reminded the jury that the burden of proof was on the prosecution who had to prove that the applicant knew the bottles contained a dangerous drug.  However, after prosecuting counsel made the above submissions, the judge did not make it clear to the jury that mere suspicion was not enough, which might have misled the jury into thinking that if the applicant, despite harbouring a slight suspicion, did not open the polyfoam boxes to see what the wine bottles contained, it would be equivalent to her having knowledge.”", "zh-HK": "29. 在本案，法官雖不止一次提醒陪審團舉證責任在控方，控方必須證明申請人知悉酒樽內藏的是危險藥物，但在主控作出上述陳詞後，法官並無向陪審團明確指出單單懷疑是不足夠的，可能令陪審團誤以為申請人有少少懷疑而無拆開發泡膠盒看看酒樽內藏為何物，便等同她是知情。」" } }, { "doc_id": 42, "seg_id": 66, "translation": { "en": "However, in the present case, the prosecution did not make a submission similar to that in Lai Wing Huen, and the Trial Judge even emphasized in the summing-up:", "zh-HK": "然而，在本案中，控方不但沒有作出類似賴案的陳詞，原審法官在導詞中更強調：" } }, { "doc_id": 42, "seg_id": 67, "translation": { "en": "“Well, so if he said, had to know (sic), well, there is in fact only one reason, that is, someone told him, that is, his predecessor, his superior, or someone else, or a contact person told him that those were dangerous drugs. Well, if only in such circumstances that no check was needed, and he knew that, and he still agreed to go on doing such work,”", "zh-HK": "「咁所以如果佢話要知嘅，咁即係其實一個原因嘅啫，就係有人同佢講，即係佢嘅上手，佢嘅上頭，又或者有其他人士，或者一個接洽嘅人同佢講嗰啲係毒品嚟嘅。咁如果只有喺咁嘅情況之下，先至可以唔使檢查，佢又知道，而佢又更同意繼續去從事呢個工作。」" } }, { "doc_id": 42, "seg_id": 68, "translation": { "en": "Moreover, the trial judge further explained to the jury in the summing-up that even if they were of the view that the Applicant believed or suspected that there were prohibited or illicit items in the parcel, it did not mean that the prosecution had proved that the Applicant had knowledge of the dangerous drug in the case:", "zh-HK": "另外，原審法官又在導詞中進一步向陪審團解釋，就算他們認為申請人相信或懷疑包裹內有違禁品或非法物品，這並不表示控方已證明申請人對涉案毒品知情：" } }, { "doc_id": 42, "seg_id": 69, "translation": { "en": "“And taking a step backward, if the defendant knew at most that he was doing something bad for “Chung Loi”, something illegal, that is to say, something improper, or dealing with something generally referred to as prohibited items, is it enough? … Well, will you consider that even if you are of the view that the defendant knew it was something not proper, not decent, not normal goods, or else the offer would not have been so good, with him paid that much as a reward and you were asked to erase this and erase that, well, could it be the case that he at most only knew they were prohibited items? Well, is there evidence to show that he definitely knew it was a dangerous drug? These are what you need to consider. Only if you can exclude all - all other possibilities and draw the only reasonable inference, that is to say from all the circumstantial evidence, these facts, we can make a conclusion, which is a definite and reasonable conclusion, that is to say he definitely knew it was a dangerous drug, only under such circumstances can you convict him. Otherwise, your duty is to consider that even if he could only reckon that those were problematic goods, it did not mean that it was a dangerous drug. Then you must acquit him. Well, that’s all I want to say.”", "zh-HK": "「而退一步嚟講，如果被告最多知道佢係幫『重來』做啲唔好嘅嘢，非法嘅嘢，即係話係有一啲問題嘅嘢，或者係所謂籠稱違禁品嘅話，咁夠唔夠呢？…咁會唔會你哋會考慮到即使你認為被告都知道嗰啲唔係妥當嘅嘢㗎喇，唔正經嘅嘢㗎喇，唔係正常嘅貨物㗎，如果唔係唔會咁好死，畀咁多嘅人工佢嘅，又叫你剷除呢樣，剷除嗰樣嘅。咁佢會唔會凈係最多都係知道係違禁品呢？咁有冇證據顯示佢必然知道係毒品呢？呢啲都係要你哋考慮。只要你哋能夠排除所有所有嘅可能性，達致唯一合理嘅推論，就係話從呢啲所有嘅環境證供，呢啲嘅事實，我哋得到一個結論，個結論係一個必然同埋合理嘅結論，就係話佢必然知道嗰度係毒品。只喺咁嘅情況之下你哋先可以判佢有罪，否則你哋嘅責任就係要考慮就算佢只能夠認為嗰啲係有問題嘅貨品都好，咁但係唔係等於係毒品，咁你哋亦都必須要判佢冇罪。咁我要講嘅嘢係咁多喇。」" } }, { "doc_id": 42, "seg_id": 70, "translation": { "en": "This Court holds that the Trial Judge had already given the jury adequate and proper directions as to the prosecution’s obligation to prove the Applicant’s knowledge of the dangerous drug in the parcel. Lai Wing Huen does not require the presiding judge in every case to direct the jury that “suspicion is not enough”. Whether it is necessary to give the relevant direction depends on the circumstances of individual cases.", "zh-HK": "本庭認為，原審法官就控方必須證明申請人對包裹內的毒品知情這一個事項，已經給予陪審團充分及正確的指引。賴案並不是要求主審法官在每一宗案件中都必須向陪審團發出「懷疑並不足夠」的指引；須否作出相關指引要視乎個別案件的案情而定。" } }, { "doc_id": 42, "seg_id": 71, "translation": { "en": "If the presiding judge had already adequately and properly dealt with the element of “knowledge”, and there was no other matter in the case that might mislead the jury into equating “suspicion” with “knowledge”, then it was indeed not important whether the presiding judge gave the directions laid down by the Court of Appeal in Lai Wing Huen, let alone having to state to the jury verbatim that “suspicion is not enough”.", "zh-HK": "假如主審法官已經充分及正確地處理「知情」這個元素，而案中又沒有其他事項令致陪審團可能誤以為「懷疑」等同「知情」，則主審法官有否作出上訴法庭在賴案所提出的指引，實無關重要，更遑論必須一字一句地向陪審團指出「懷疑並不足夠」。" } }, { "doc_id": 42, "seg_id": 72, "translation": { "en": "In view of the above, this Court finds that Ground of Appeal 2 cannot be sustained.", "zh-HK": "基於以上所述，本庭認為上訴理由二並不成立。" } }, { "doc_id": 42, "seg_id": 73, "translation": { "en": "Ground of Appeal 3: What happened during the controlled delivery", "zh-HK": "上訴理由三：監控派遞過程中發生的事情" } }, { "doc_id": 42, "seg_id": 74, "translation": { "en": "This ground of appeal involves the controlled delivery that the Applicant took part in after his arrest. It is not disputed that after the arrest of the Applicant, “Chung Loi” kept calling the Applicant to enquire about the situation, and told the Applicant that “it’s dangerous even just holding the things on the street” , and that the goods should be handed over as soon as possible; and the recipient of the goods who had contact with the Applicant also told the Applicant that police vehicles were parked near the original location intended for collection of goods, and therefore it was inconvenient to collect the goods.", "zh-HK": "這個上訴理由涉及申請人在被捕後所參與的監控派遞。雙方沒有爭議，在申請人被捕後，「重來」不斷致電申請人查詢情況，又向申請人表示「揸住啲嘢喺街都有危險」，應盡快交貨；而與申請人接觸的收貨人亦曾經向申請人表示，由於原定的收貨地點附近停泊了警車，所以不方便收取貨件。" } }, { "doc_id": 42, "seg_id": 75, "translation": { "en": "In respect of this issue, the prosecution stated in the closing submission as follows:", "zh-HK": "針對這個議題，控方在結案時作出以下陳述：" } }, { "doc_id": 42, "seg_id": 76, "translation": { "en": "“What kind of work could that be where handover could not be done where there were police vehicles? What kind of goods could they be to be dangerous to hold on the streets? … Of course, as to the circumstances of the handover involving the presence of police vehicles, the time concerned was after the arrest of the defendant. The messages from ‘Chung Loi’ saying, ‘it’s dangerous to go out holding the things’ and ‘it’s dangerous to hold the things on the streets’ also came after the arrest of the defendant, but these two people concerned in fact did not know at that time that the defendant had been arrested. And the people whom the defendant had contact with included ‘Chung Loi’ who knew that ‘it’s dangerous to hold the things on the streets’, and the person going to collect the things from the defendant later on who (dared) not carry out the handover upon seeing the police vehicles. Could it be the case that the defendant was the only person kept in the dark in this group, this syndicate? Could it be the case that the defendant was the only person not knowing that what he was dealing with was a dangerous drug?”", "zh-HK": "「有啲咩嘢工作交收係唔可以有警車在場嗰度發生嘅呢？有啲咩嘢貨係揸住喺街有危險嘅呢？…當然，警車嗰個交收嘅情況，涉及嗰個時間係被告人被捕之後，收到『重來』話『揸住啲嘢出街有危險』，『揸住啲嘢喺街有危險』，亦都係被告人被捕之後所出現，但係有關呢兩個人根本喺當時唔知道被告人係被捕嘅。同埋被告人所接觸嘅人，包括『重來』知道『揸住啲嘢喺街有危險』，之後向被告人收嘢嘅人見到警車亦都唔夠（膽）交收，被告人會唔會係喺呢一個組織、呢一個集團裡面唯一一個被蒙在鼓裡嘅人呢？會唔會只係得被告人一個唔知道佢處理緊嘅就係毒品呢？」" } }, { "doc_id": 42, "seg_id": 77, "translation": { "en": "In the summing-up, the Trial Judge recapped the evidence in this regard, and stated to the jury:", "zh-HK": "原審法官在導詞中複述這方面的證據後，亦曾向陪審團表示：" } }, { "doc_id": 42, "seg_id": 78, "translation": { "en": "“… during that time, the defendant received a message from ‘Chung Loi’. ‘Chung Loi’ was very anxious. He/She told the defendant to ‘hurry up and take a taxi to get there. Don’t waste time. It’s very dangerous to hold the things on the streets.’ Bear this sentence in mind.”", "zh-HK": "「…期間被告人就收到『重來』個信息，『重來』就好心急，佢叫被告人『快啲飛的過去，唔好嘥時間，揸住啲嘢喺街好危險』，呢句大家記住喇。」" } }, { "doc_id": 42, "seg_id": 79, "translation": { "en": "Mr Eric Cheung pointed out that during the controlled delivery, the Applicant was required to follow the instructions of the Customs Officers in having conversations and might not respond according to his own state of mind and perception, and therefore it was indeed unfair to the Applicant for the prosecution to emphasize such conversations. For instance, even if the Applicant wanted to raise a question upon hearing “Chung Loi” mention that “it’s dangerous to hold the things on the streets” or wished to clarify with “Chung Loi” what was being referred to as “dangerous”, given the passive role he was playing at that time, there was no way for him to make enquiries.", "zh-HK": "張律師指，由於申請人在監控派遞過程中，是需要根據海關人員的指示進行對話，而不能憑藉自己的心態及認知作出回應，故此控方強調這些對答，實對申請人不公。舉例說，假使申請人在聽到「重來」提及「揸住啲嘢喺街有危險」這句話時希望作出提問，又或希望向「重來」澄清「危險」是指甚麼事情，基於申請人當時的被動情況，他也沒有辦法進行查詢。" } }, { "doc_id": 42, "seg_id": 80, "translation": { "en": "This Court agrees with Mr Eric Cheung’s observation. If the jury took into account the Applicant’s response and conduct during the controlled delivery, or to put it more accurately, the Applicant’s failure to respond or act, such as his failure to raise queries with “Chung Loi” or the recipient of the goods, or to indicate that he did not understand something and so on, and as a result drew an adverse inference against the Applicant, it is apparently unfair to the Applicant.", "zh-HK": "本庭同意張律師的論述，假如陪審團考慮申請人在監控派遞過程中的回應及行為，或更準確地說，申請人沒有作出的回應及行為，例如沒有向「重來」或收貨者提出質詢，或表示不明所以等等，而因此對申請人作出不利的推論，這似乎是對申請人不公平的。" } }, { "doc_id": 42, "seg_id": 81, "translation": { "en": "In the present appeal hearing, as to whether what “Chung Loi” and the recipient of the goods said to the Applicant during the controlled delivery amounted to “hearsay evidence” or whether what they said should be admitted as evidence, the parties only made preliminary submissions in court, without going into depth on the relevant principles; nor did they rely on authorities involving “hearsay evidence” to further elaborate on the arguments to this Court. Therefore, this Court does not consider it appropriate to comment on this issue here.", "zh-HK": "在這次上訴聆訊中，雙方就「重來」及收貨者在監控派遞過程中對申請人所講的說話是否涉及「傳聞證供」，又或該些說話是否應被接納為呈堂證供，只曾在庭上作出初步陳詞，沒有就有關原則深入探討；亦沒有依賴涉及「傳聞證供」的案例，向本庭作出進一步闡述。故此，本庭認為並不適合在此就這個議題作出評論。" } }, { "doc_id": 42, "seg_id": 82, "translation": { "en": "Ground of Appeal 4: The Applicant’s phone communication records", "zh-HK": "上訴理由四：申請人的電話通訊紀錄" } }, { "doc_id": 42, "seg_id": 83, "translation": { "en": "The parties agreed during the appeal hearing that the number “1258594120” shown in the Applicant’s communication records was in fact not another person’s phone number, but a code internally set by the telecommunication service provider concerned, to show that the card holder was using Wi-Fi service at the time.", "zh-HK": "雙方於上訴聆訊時同意申請人的通訊紀錄內顯示“1258594120”的這個號碼，其實並不是一個他人的電話號碼，而是相關電訊商內部設定的編碼，用以顯示持卡人當時正在使用Wi-Fi服務。" } }, { "doc_id": 42, "seg_id": 84, "translation": { "en": "Regrettably, during the trial, before ascertaining the relevant matter, the prosecution wrongly assumed that “Chung Loi” used this number to call the Applicant. From the transcript, we can see that when the prosecutor was cross-examining the applicant, he queried the Applicant time and again, saying that through this number, he had had repeated and prolonged telephone conversations with “Chung Loi”. It is particularly important that the prosecutor claimed that the Applicant continued to stay in contact with the holder of this phone number after his release on bail following the arrest:", "zh-HK": "遺憾地，控方於審訊時在沒有確認有關事項前，便錯誤假定「重來」是用這個號碼致電申請人。從謄本可見，主控官在盤問申請人時多番質疑申請人透過這個號碼與「重來」重複及長時間地通話，尤其重要的是，主控官聲稱申請人在被捕獲得保釋後，繼續與該電話的持有人保持聯絡：" } }, { "doc_id": 42, "seg_id": 85, "translation": { "en": "“Q: In respect of this case, you were released on bail afterwards. From 10 January, you only made five outgoing calls using - - which were all recorded through Wi-Fi service, three of which exceeding one thousand seconds. All calls were made by you, all involving this phone number, 1258594120. Can you see that?", "zh-HK": "「問：針對於本案，之後你獲釋，由1月10 號開始你只係打出咗五個電話係用--係都係Wi-Fi service紀錄落嚟嘅，其中三個都係超過一千秒，全部都係由你打出嘅，全部都係涉及呢一個1258594120嘅電話號碼，你見唔見到？" } }, { "doc_id": 42, "seg_id": 86, "translation": { "en": "A: Yes.", "zh-HK": "答：係。" } }, { "doc_id": 42, "seg_id": 87, "translation": { "en": "Q: Can you see that?", "zh-HK": "問：見唔見到？" } }, { "doc_id": 42, "seg_id": 88, "translation": { "en": "A: I can see that.", "zh-HK": "答：見到。" } }, { "doc_id": 42, "seg_id": 89, "translation": { "en": "Q: Who was it?", "zh-HK": "問：邊個嚟㗎呢個？" } }, { "doc_id": 42, "seg_id": 90, "translation": { "en": "A: I think it might be the telecommunication service provider. It should be.", "zh-HK": "答：我覺得可能係電訊商喇，應該係。" } }, { "doc_id": 42, "seg_id": 91, "translation": { "en": "…", "zh-HK": "…" } }, { "doc_id": 42, "seg_id": 92, "translation": { "en": "Q: The total number of calls is 67. Now think carefully. Who was that person?", "zh-HK": "問：總共嗰個通話次數係有六十七次嘅，你而家諗清楚，嗰個人係邊個㗎？" } }, { "doc_id": 42, "seg_id": 93, "translation": { "en": "A:Not sure, that is, maybe the telecommunication service provider. Apart from the telecommunication service provider, I cannot think of anything else.", "zh-HK": "答：唔清楚，即係可能電訊商，除咗電訊商之外，諗唔到啲咩嘢。" } }, { "doc_id": 42, "seg_id": 94, "translation": { "en": "Q: I suggest to you that in fact that person was the person related to this case, who instructed you to hand over the parcel. Do you agree?", "zh-HK": "問：我向你建議，呢個人其實就係同本案有關指使你交收包裹嘅人，你同唔同意？" } }, { "doc_id": 42, "seg_id": 95, "translation": { "en": "A:Disagree.”", "zh-HK": "答：唔同意。」" } }, { "doc_id": 42, "seg_id": 96, "translation": { "en": "This point is extremely prejudicial to the Applicant. The jury might reckon that if the Applicant had no knowledge of the dangerous drug in the case, he should have been alert to or angry at “Chung Loi” afterwards and would not have stayed in contact with “Chung Loi” after the arrest.", "zh-HK": "這點對申請人極為不利，陪審團可能會認為，如申請人對涉案毒品並不知情，他在事發後應會對「重來」這人產生警剔或怒意，而不會在被捕後仍與「重來」繼續聯絡。" } }, { "doc_id": 42, "seg_id": 97, "translation": { "en": "Later on, the prosecutor even made the following statement in the closing submission:", "zh-HK": "主控官其後更在結案陳詞時作出以下陳述：" } }, { "doc_id": 42, "seg_id": 98, "translation": { "en": "“From exhibit D16 which we added as the last piece of evidence, we can see that the total number of calls that the defendant made to number X is 67, which is the largest number of calls during the one-and-a-half-month period from 1 December 2017 to 15 January 2018, even more than the defendant’s own mother’s. Given the large number of calls and the long duration of calls, is the explanation given by the defendant in court acceptable? Is it possible that (he) cannot remember those calls which were so large in number and so long in terms of duration?”", "zh-HK": "「喺我哋最後增加嘅證據D16嗰度可以睇到，被告人打畀號碼X嘅次數總共係六十七次，係最多通話嘅，喺17年12月1號至到18年1月15 日呢個半月嘅時間裡面，更加多過被告自己嘅媽媽。考慮到通話次數咁多，通話時間又咁長，被告人喺庭上嘅解釋大家係咪可以接受呢？有冇可能可以唔記得曾經咁（多）次同埋咁長時間嘅通話呢？」" } }, { "doc_id": 42, "seg_id": 99, "translation": { "en": "The prosecution was obviously challenging the credibility of the Applicant as a witness on the basis of the evidence that the Applicant gave about that phone number.", "zh-HK": "這顯然是以申請人就該電話號碼所作的證供，質疑申請人並非一名可信的證人。" } }, { "doc_id": 42, "seg_id": 100, "translation": { "en": "Such an approach of the prosecution was not only obviously wrong, but also unfair to the Applicant. In fact, it should not be difficult to ascertain whether that number was another person’s phone number. If the prosecution did not have relevant substantive evidence during the trial, the prosecution should not have made speculations that were prejudicial to the Applicant, or even implied that the number belonged to “Chung Loi”.", "zh-HK": "控方這個處理方法，不但明顯犯錯，亦對申請人造成不公。事實上，要確定該個號碼是否他人的電話號碼，應該不是難事。如果控方在審訊時沒有相關的實質證據，則控方並不應該作出不利於申請人的揣測，甚或暗示該號碼是屬於「重來」的。" } }, { "doc_id": 42, "seg_id": 101, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 42, "seg_id": 102, "translation": { "en": "In light of the above, Grounds of Appeal 1, 3 and 4 do stand.", "zh-HK": "基於以上所述，上訴理由一、三及四均成立。" } }, { "doc_id": 42, "seg_id": 103, "translation": { "en": "Mr Ivan Cheung, Senior Public Prosecutor representing the Respondent, hoped that this Court would uphold the guilty verdict against the Applicant by applying “the proviso”. However, this Court is of the view that the jury was not given adequate and proper directions in respect of the above issues. This Court cannot be sure whether the jury, if appropriately directed, would have accepted the prosecution case eventually. Therefore, this Court holds that it is not proper to invoke the power under “the proviso” in this case.", "zh-HK": "代表答辯人的高級檢控官張卓勤希望本庭使用“但書”維持針對申請人的有罪裁決，但本庭認為陪審團就上述數個事項均沒有獲得充分及正確的指引，而在適當引導下，陪審團最終是否接納控方的講法，這並不是本庭可以肯定的。因此，本庭認為在本案行使“但書”的權力是不恰當的。" } }, { "doc_id": 42, "seg_id": 104, "translation": { "en": "This Court grants the Applicant’s application for leave to appeal against conviction and, treating his application as the appeal proper, we allow the appeal.  The conviction is quashed and the sentence set aside.", "zh-HK": "本庭批准申請人就定罪提出的上訴許可申請，並視之為正式上訴，裁定上訴得直，撤銷有關定罪及判刑。" } }, { "doc_id": 42, "seg_id": 105, "translation": { "en": "Mr Ivan Cheung, Senior Public Prosecutor of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級檢控官張卓勤代表" } }, { "doc_id": 42, "seg_id": 106, "translation": { "en": "Mr Eric Cheung, Solicitor Advocate instructed by ONC Lawyers, assigned by the Legal Aid Department, for the Appellant", "zh-HK": "上訴人：由法律援助署委派柯伍陳律師事務所轉聘張達明訟辯律師代表" } }, { "doc_id": 43, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the Reasons for Judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 43, "seg_id": 2, "translation": { "en": "In our judgment dated 19 January 2011, we decided that the applicant’s conviction for the offence of rape was unsafe and unsatisfactory.", "zh-HK": "本庭在 2011 年 1 月 19 日的判案書裁定申請人被控" } }, { "doc_id": 43, "seg_id": 3, "translation": { "en": "Since we had to deal with matters concerning substituting an alternative verdict and re-trial, the hearing was adjourned to 22 June 2011. On that day, in deciding the applicant’s application for leave to appeal against conviction, we allowed the application and, treating it as the appeal proper, quashed the original conviction and, pursuant to section 83A of the Criminal Procedures Ordinance, Cap. 221, substituted it with a conviction of indecent assault and passed a sentence of three years’ imprisonment.", "zh-HK": "「強姦」罪的定罪裁決不穩妥及不安全，但由於需要處理取代罪行裁決及重審的議題，故此將聆訊押後至2011 年 6 月 22 日。在當日，本庭就申請人針對定罪的上訴許可申請作出裁決，本庭批准該上訴許可申請及視該申請為正式上訴及根據《刑事訴訟程序條例》(香港法例第221章)第83A條撤銷原本的定罪，並以「猥褻侵犯」罪作為取代罪行及判處申請人入獄三年。" } }, { "doc_id": 43, "seg_id": 4, "translation": { "en": "Conditions for substituting a conviction", "zh-HK": "取代罪行的條件" } }, { "doc_id": 43, "seg_id": 5, "translation": { "en": "In Hau Tung Ying and Li Bin v. HKSAR [2011] 2 HKLRD 782, the Court of Final Appeal held that in order to invoke section 83A of the Criminal Procedures Ordinance, the following two conditions must be satisfied:", "zh-HK": "在Hau Tung Ying (候東迎) and Li Bin (李斌) v. HKSAR [2011] 2 HKLRD 782一案，終審庭裁定法庭若要援引《刑事訴訟程序條例》第83A條的行使權就必須符合以下的兩項條件：" } }, { "doc_id": 43, "seg_id": 6, "translation": { "en": "“63.First, the substituted verdict must be one for an offence of which “the jury could on the indictment have found him (the accused) guilty”; that is to say, it must be for an offence which is open on the indictment. This is often the case where the substituted offence is laid as an alternative charge in the indictment or where there are alternatives available under the law to the convicted offence. Normally, these would be lesser offences, such as manslaughter in a case of murder or theft in a case of robbery, but that is not necessarily the case and would require consideration of the nature of both the convicted and substituted charges in question and the alleged facts sought to be proved in support of either charge.", "zh-HK": "「63．首先，取代裁決的罪行必定是“陪審團本可就有關公訴書裁斷他(被告)有罪”的罪行；即是說，取代裁決的罪行必定是有關公訴書內容許的罪行。在公訴書內，取代罪行經常作為交替控罪提出，或被定罪的罪行根據法律容許有其他交替定罪。這些罪行通常會是一些較輕微的罪行，例如在謀殺案中的誤殺罪或在搶劫案中的盜竊罪。話雖如此，但情況並非必然，我們還須考慮有關定罪和取代控罪兩者的性質，以及考慮為尋求證明支持其中任何一項控罪而提出的指稱事實。" } }, { "doc_id": 43, "seg_id": 7, "translation": { "en": "64.The second condition is that it must be clear to the appellate court that “the jury must have been satisfied of facts which proved him (the accused) guilty of the other offence”. The court must be satisfied that the jury must have made a finding of the relevant facts. It is not sufficient that the court considers that the jury would have or might have been satisfied of the relevant facts. The court must also be satisfied that the facts found by the jury are facts which must be proved to support a conviction on the other charge. As Widgery CJ in R v Deacon [1973] 1 WLR 696, 699 said in relation to a similar English provision:", "zh-HK": "64．第二項條件是審理上訴的法院必須清楚“陪審團定已信納證明他(被告)就該另一罪行有罪的事實”。法庭必須信納陪審團定已就相關事實作出裁斷。如法庭認為陪審團本會或可能會信納相關事實是不足夠的。法庭亦必須信納陪審團所裁斷的事實，亦是支持另一控罪的定罪所須證明的事實。正如首席法官Widgery在R v Deacon [1973] 1 WLR 696, 699一案中就一條相若的英國條文所說：" } }, { "doc_id": 43, "seg_id": 8, "translation": { "en": "“The basis of the power to substitute a verdict for a different offence must … be based on the finding of the jury. It is only when it appears to the court from the finding of the jury that the facts essential to establish the alternative offences were proved, that the court may substitute the alternative verdict. Unlike section 2 [the proviso], the Act does not authorize the court to act on the footing that the court is satisfied that the jury would have brought in the alternative verdict if properly instructed. What is necessary is that the findings of the jury themselves must establish the appropriate facts to support the alternative offence.”", "zh-HK": "“以另一項不同罪行的裁決作出取代，其權力基礎必須是...基於陪審團的裁斷。只有在法庭覺得根據陪審團的裁斷，確立交替罪行的必要事實獲得證明，方可以交替罪行的裁決作出取代。與第2條[但書]不同，即使法庭信納陪審團如獲適當指示便會作出交替罪行的裁決，此項法令亦無授權法庭據此行事。要點是陪審團本身的裁斷必須確立恰當的事實以證明交替罪行。”」" } }, { "doc_id": 43, "seg_id": 9, "translation": { "en": "In our view, the substitution of a conviction of indecent assault for the original conviction of rape satisfied the above two conditions. First, the elements of the offence of rape with which the applicant was charged included all the elements of the offence of indecent assault, both being offences where the defendant sexually assaulted the victim without her consent.", "zh-HK": "本庭認為以「猥褻侵犯」罪代替原本的「強姦」罪是符合上述兩項條件的。首先，申請人被控「強姦」罪的罪行元素包括了「猥褻侵犯」罪所包含的所有犯罪元素，兩項控罪都是被告人在未獲受害人同意的情況下對她作出性侵犯的罪行。" } }, { "doc_id": 43, "seg_id": 10, "translation": { "en": "Further, in this case, the second condition set out above was also satisfied. The undisputed facts of the case were:", "zh-HK": "另外本案亦符合上述的第二項條件，本案沒有爭議的事實是:" } }, { "doc_id": 43, "seg_id": 11, "translation": { "en": "The victim, X, was under 16 at the material times;", "zh-HK": "受害人 X 在事發時未滿 16 歲；" } }, { "doc_id": 43, "seg_id": 12, "translation": { "en": "The applicant admitted that he had had sexual intercourse with the victim; and", "zh-HK": "申請人承認他曾與受害人性交；及" } }, { "doc_id": 43, "seg_id": 13, "translation": { "en": "The applicant had known before he had sexual intercourse with the victim that she was only 15.", "zh-HK": "申請人在與受害人性交前已經知道她只有 15 歲。" } }, { "doc_id": 43, "seg_id": 14, "translation": { "en": "The jury, in our view, must have accepted the above undisputed facts. Further, section 122(2) of the Crimes Ordinance, Cap. 200 stipulates that a person under the age of 16 cannot in law give any consent which would prevent an act being an assault for the purposes of section 122(1). Accordingly, the applicant could not rely on the consent given by the victim as his defence. We therefore considered that the facts that must have been accepted by the jury were those that would support the applicant’s conviction of indecent assault.", "zh-HK": "本庭認為陪審團會必然接納上述沒有爭議的事實。另外，由於《刑事罪行條例》(香港法例第 200 章)第 122(2) 條說明年齡在 16 歲以下的人士在法例上不能給予同意令某項行為不構成第 122(1) 條所指的「侵犯」，因此，申請人不可以未滿 16 歲的受害人所給予的同意作為其抗辯理由。本庭因此認為本案陪審團必然接納的事實是支持申請人被判「猥褻侵犯」罪罪名成立的事實。" } }, { "doc_id": 43, "seg_id": 15, "translation": { "en": "Re-trial", "zh-HK": "重審" } }, { "doc_id": 43, "seg_id": 16, "translation": { "en": "The Department of Justice indicated that they would not ask for a re-trial.", "zh-HK": "律政司表示不會要求案件重審。" } }, { "doc_id": 43, "seg_id": 17, "translation": { "en": "Sentence", "zh-HK": "刑期" } }, { "doc_id": 43, "seg_id": 18, "translation": { "en": "The victim in the present case was aged only 15 at the material times. This was not a case where two teenagers of similar age engaged in sexual activities out of curiosity or love as they went through puberty. The assailant was a 31-year-old adult man, who induced the victim to have sex with him on the pretext of arranging for her to enter the show business or to become a model. In our judgment, the appropriate starting point would have been four and a half years’ imprisonment. However, since the applicant admitted the material facts in the case, namely, that he had had sexual intercourse with the victim and that he had known she was under 16 at the material times, we gave him a one-third discount and sentenced him to three years’ imprisonment.", "zh-HK": "本案的受害人在事發時只有 15 歲。本案並不是兩名年紀相若的少年人，在青春期因好奇或兩情相悅而發生的性行為。本案的侵犯者是一名 31 歲的成年男子，他以可安排受害人進入娛樂圈或模特兒行業的藉口來誘使受害人與他發生性關係。本庭認為適當的量刑起點應為四年半監禁，但由於申請人承認案情中的重要事實，即他曾與受害人發生性關係及承認在事發時是知道她未滿 16 歲，故此本庭在刑期上給予三分一的扣減，將刑期定為三年監禁。" } }, { "doc_id": 43, "seg_id": 19, "translation": { "en": "Memi Ng, Senior Public Prosecutor of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級檢控官吳美華代表。" } }, { "doc_id": 43, "seg_id": 20, "translation": { "en": "Bernard Yuen, instructed by Anthony So & Co., for the applicant (Conviction)", "zh-HK": "申請人(定罪)：由法律援助署委派蘇震共律師行轉聘袁國華大律師代表。" } }, { "doc_id": 43, "seg_id": 21, "translation": { "en": "The Applicant, acting in person, present (Sentence)", "zh-HK": "申請人(刑罰)：無律師代表，親自出席。" } }, { "doc_id": 44, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案書：" } }, { "doc_id": 44, "seg_id": 2, "translation": { "en": "The applicant was indicted of one count of rape, contrary to section 118 of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. He pleaded not guilty and was tried before Deputy High Court Judge Patrick Li sitting with a jury. The jury returned a verdict of guilty by a ratio of 5 to 2. The applicant was sentenced to 7 years and 6 months imprisonment. He applies for leave to appeal against both conviction and sentence.", "zh-HK": "申請人被控一項「強姦」罪，違反《刑事罪行條例》(香港法例第200章)第118條。申請人否認控罪。案件經高等法院暫委法官李瀚良與陪審團審理後，陪審團以5比2的比數裁定申請人罪名成立。申請人被判監7年6個月。申請人現就定罪及刑期提出上訴許可申請。" } }, { "doc_id": 44, "seg_id": 3, "translation": { "en": "Evidence of the victim", "zh-HK": "受害人的證供" } }, { "doc_id": 44, "seg_id": 4, "translation": { "en": "The victim X was a 15 year old girl. She came to know the applicant on 20 July 2009 on a social networking website on the internet. They communicated with each other through MSN. X said that the applicant himself joined her MSN group. The applicant told X that he had shot some films and had done make-ups for some models. He asked the victim whether she wanted to be a model and used the lens on the computer to show her some cosmetics and a skirt. He said he would give the skirt to X as a gift.", "zh-HK": "受害人X是一名15歲的女童。她在2009年7月20日在互聯網一個社交網站上認識申請人。他們是以MSN來通訊的，X說是申請人自己加入她的MSN。申請人告訴X他曾經拍過電影及替模特兒化妝。申請人問她想不想當模特兒。申請人利用電腦的鏡頭向X展示一些化妝品及一條裙。他說他會將這條裙送給X。" } }, { "doc_id": 44, "seg_id": 5, "translation": { "en": "Subsequently, they talked with each other on the telephone. The applicant told X that he was running a model company, did make-ups for people and had shot films. He asked X whether she would like to be a model. X said she was too short. The applicant asked her whether she wanted to join the show business or to be a photography model. X said she wanted to join the show business. Thereupon the applicant told her that certain models and singers had sexual relationships with him. He told her that in order to do what she wanted, she needed to pay a price. Then he asked her, “Do you want that?” X thought what he meant was make up, and she answered, “That’s OK.” X said the applicant had told her, “A starlet who desires to stand out from others as quickly as possible has to offer her body in exchange.” X said she did not know whether this statement was a suggestion to her that that was what she needed to do, or whether it was just a casual remark in an ordinary conversation. Then the applicant asked her, “Do you want that?” At that time X misunderstood that the applicant was referring to make up and photo-taking. After that, the two of them arranged for seeing each other on the following day. The applicant emailed to X a commercial advertisement contract for models. X signed the contract and emailed it back to the applicant.", "zh-HK": "雙方接着以電話通話。申請人告訴X他開設模特兒公司、替人化妝及拍過電影。申請人問X是否喜歡當模特兒。X說她個子矮小。申請人問她想入娛樂圈還是拍照，X說她想入娛樂圈，申請人便對她說有些模特兒及歌手曾與他發生性關係。申請人對她說如果她要做這些事，她就要付出代價。申請人問她「想不想」，X以為他的意思是化妝，便說：「OK啦」。X亦說申請人曾對她說：「一個明星想快上位就要出賣自己的身體」。X說她不知道申請人這句話的意思是指她要這樣做，抑或是一項平常的交談。接着申請人問她：「你想唔想呀？」X當時誤以為申請人是指化妝及影相。接着兩人相約在翌日見面，申請人電郵一份模特兒廣告合約給X。X在合約上簽名，然後電郵給申請人。" } }, { "doc_id": 44, "seg_id": 6, "translation": { "en": "On the following day, the two of them met in a McDonald’s restaurant in Tsuen Wan. After they met, the applicant asked X, “Are you going to do it now?” X thought that he was referring to matters about modeling and make up. The applicant gave a skirt to X as a gift. Then they went to an hourly hotel. The applicant and X went into a room of the hotel and sat on a bed. The applicant opened a cosmetic case and explained to X what cosmetics there were inside. Then he asked X to stand up and he kissed her lips. According to X, at that moment she was very scared. “I trembled all over. My hands were freezing and my whole body kept on trembling.” However, she said she did not do anything. Her reason was that during her childhood she had been beaten by a private tutor. She was not bold enough to resist and she feared that the applicant might have weapons and might kill her; yet she had never conveyed to the applicant what there was in her mind. When the applicant wanted to kiss her, she stepped back. The applicant bent forward to kiss her, and X bent her upper body backward. She lost balance and fell on the bed. Then the applicant touched her breasts with his hands. X was very afraid, but she did not do anything or say anything to show that she resisted him. The applicant went on and took off his clothes. He asked X to take off her clothes, and she took off her outer garments and underclothes. After that, the applicant removed X’s bra and briefs. X still did nothing to resist. X said she had tried to step back but she did not say anything. X said she lacked the courage to resist. She was very sensitive. There was a shadow in her mind, so even though her family members had given her proper guidance, she did not have the courage to resist. She explained that actually she did try to resist. “I mean it’s like playing. I tickled him, [trying] to get him off me.” What followed was that the applicant asked her to lie on the bed, and he got onto X’s body. X said she feared that the applicant’s penis would get into her vagina, she therefore moved her body towards the foot of the bed in order to prevent him from doing that. X said the genitals of the applicant touched the outside of her vagina, but did not get into her vagina. Soon, the applicant ejaculated outside her body. Then he lay down beside X and the two of them watched television together. Later, the applicant again got onto X’s body and inserted his penis into her vagina. X said she was not sure whether his penis had actually got into her vagina, but she felt great pain inside her vagina. The applicant moved his penis forward and backward. After a while, the applicant stopped and slept beside X. In the course of this sexual intercourse, the applicant said to her, “You still seem to be afraid of me”, and the response from X was an “Ah”.", "zh-HK": "翌日，兩人在荃灣的一間麥當勞餐廳見面，見面後申請人問X：「咁你依家做唔做呀？」，X當時以為他所指的是模特兒及化妝的事情。申請人送了一條裙給X，接着兩人前往一間時鐘酒店。申請人與X進入酒店房間後坐在床上，申請人打開他一個化妝箱及向X介紹箱內的化妝品，之後申請人叫X站起來及吻她的嘴，X說她當時很驚，然後「成身震晒，雙手又凍，僵晒，成個人係咁震」，但她說她沒有作出任何動作，原因是她小時候曾被一名補習老師毆打，她沒有膽量反抗，她亦擔心申請人有武器及會殺她，但她從來沒有向申請人表達過她的想法。當申請人想親吻她時，X向後縮，但申請人俯前吻她。由於X的上身向後彎，因失平衡而跌在床上，接着申請人用手摸她的胸部。雖然X當時很驚慌，但她沒有作出任何動作或說任何話以示反抗。申請人之後除掉自己的衣服及叫X除掉她的衣服。X便將她的外衣及內衣除掉，接着申請人除掉X的胸圍及底褲，X亦沒有作出任何動作反抗。X指她有試過退後，但她沒有說過任何話。X說她自己沒有膽量抗拒，她很敏感，雖然家人曾教導她正常的知識，但她因為有一種陰影而沒有膽量反抗。她說她其實都有試圖反抗「即係好似玩咁，唧佢，整開佢囉」。接着申請人叫她睡在床上及爬上X的身體。由於X說她恐怕申請人的陽具會進入她的陰道，故此她曾經將身體下退，阻止他。X說申請人的性器官觸及她的陰道的外面，但沒有進入她的陰道內。不久，申請人在X的體外射精。之後申請人睡在X旁邊，兩人一起看電視，接着申請人再爬上X的身體及用陽具插入她的陰道。雖然X說她不肯定申請人的陽具有沒有成功進入她的陰道內，但她感覺到她的陰道很痛楚，申請人前後移動他的陽具，接着申請人停下來及睡在X旁邊。在進行這次性行為時，申請人對她說：「你仲好似好驚我？」，X的回應是「呀。」" } }, { "doc_id": 44, "seg_id": 7, "translation": { "en": "Subsequently, the applicant had sexual intercourse with X for the 3rd and the 4th times and then he bathed her. Finally, they left the hotel together. The applicant asked X to go with him to a shop to look for some false eyelashes. Following that, he accompanied X to take transport. Before X boarded the bus, she kissed the applicant’s cheek at his request. However, she said she was not willing to do that, so after she boarded the bus she immediately wiped her mouth with a tissue.", "zh-HK": "申請人之後再與X進行第三及第四次的性行為，然後替X洗澡，其後兩人一起離開時鐘酒店。申請人叫X陪他去一間商店找一些假眼睫毛，之後送X去搭車。在上車前，X應申請人的要求吻他的面頰，但X說她是不願意這樣做的，所以她上了車後即拿出一張紙巾抹她的嘴。" } }, { "doc_id": 44, "seg_id": 8, "translation": { "en": "In the bus, X telephoned her friend Y and arranged to meet him/her. When they met, X complained to Y that she had been “molested” by the applicant. At night on the same day, X also complained to another friend, W, whom she came to know at a photography club. In the evening of 22 July 2009, X and Y together went to make a report at the Tsuen Wan Police Station.", "zh-HK": "在巴士上，X致電她的一位朋友Y相約見面。見面後X向Y投訴她被申請人「搞佐」。當晚X亦向她一位在影相會認識的朋友W投訴。在2009年7月22日晚上X與Y一同到荃灣警署報警。" } }, { "doc_id": 44, "seg_id": 9, "translation": { "en": "The prosecution evidence showed that there was an old laceration on X’s hymen. According to X, the cause of the laceration might be either one of the following two incidents: on one occasion when she was riding a bicycle, her private parts were hurt by pressing against something hard; on another occasion, she felt that there was some hard object inside her vagina and she put her hand into her vagina. X said that when the applicant was lying on bed with her, he asked her “Have you done it with other boys before?” X answered by saying casually and equivocally, “May be and may be not.”", "zh-HK": "根據控方證供，X的處女膜有一處舊裂痕。X解釋說這可能是從前一次踏單車時壓到私處，又或者是有一次她因感覺到私處有硬物而伸手入私處所致。X說申請人與她躺在床上時，申請人問X：「你有冇同其他男仔乜嘢嘅。」X的回覆是她不著意、模棱兩可地回答「有或者冇」。" } }, { "doc_id": 44, "seg_id": 10, "translation": { "en": "Defense", "zh-HK": "答辯理由" } }, { "doc_id": 44, "seg_id": 11, "translation": { "en": "The applicant was 31 years old. He was arrested by the police on 24 July 2009. He admitted under caution that he had sex with X, but he claimed that X had sex with him voluntarily. He denied raping her.", "zh-HK": "申請人年紀是三十一歲。申請人在2009年7月24日被警員拘捕，在警誡下，他承認與X性交，但聲稱是X自願與他性交的，他否認強姦X。" } }, { "doc_id": 44, "seg_id": 12, "translation": { "en": "The applicant admitted that he had sexual intercourse with X and that he knew X was only 15 years old at the material time. He said X consented to having sexual intercourse with him. They came to know each other on the internet and then communicated with each other by telephone. X told him on the phone that she longed to join the show business. The applicant told her that the show business was dark and corrupt, and that she had to go to bed to sleep with various people. He asked her, “Can you do that?” and said to her, “That means other than having me as your partner, you’ll have to accept other people to be your partner. Do you know?” X answered, “Well, I know.” Then they arranged to meet on the following day. They met in a McDonald’s restaurant. The applicant gave her his name card and a grey skirt as a gift. After that, he showed her the information on other name cards and let her see the things in his cosmetic case. The applicant asked X once more, “Can you do that?” X said, “Yes.” Then they went to an hourly hotel. In a room in the hotel the applicant asked X again, “Can you do that?” X said, “OK.” Then the applicant told her to take off her clothes herself, and she took off her clothes herself. What followed was that the two of them lay on a bed, kissing and then had sexual intercourse. The applicant admitted that his penis was inserted into X’s vagina, but he said he ejaculated outside her body. During the intercourse, X did not have any response. After the intercourse, the applicant asked her, “You don’t feel OK?” X said, “Mm.” The applicant explained that he asked her this question because he found that she was expressionless when the intercourse was over, and he wondered what she was thinking. Later, they took a bath together and left the hotel.", "zh-HK": "申請人承認他與X發生性關係，他亦知道X當時只是15歲。她說X是同意與他性交的。雙方在互聯網上認識，接着通電話。在電話上，X對他說她很想加入娛樂圈，申請人對X說娛樂圈很黑暗，她需要陪人上床睡覺及問她「得唔得」？申請人對她說：「即係除佐陪我之外，你要陪其他人，你知唔知？」X回答是「都會知道」。之後兩人便相約在翌日見面。雙方在麥當勞見面後，申請人將他的卡片及一條灰色裙送給X。之後再把其他的卡片資料及他的化妝箱內的東西給X看。申請人再一次問X：「得唔得？」X說：「得」之後兩人便前往時鐘酒店。在酒店房間內，申請人再問X：「得唔得？」當X回答：「OK。」之後申請人叫X自己脫衣，她就自己脫掉衣服，之後兩人睡在床上接吻，然後性交。申請人承認他的陽具插進X的陰道，但在體外射精的。性交時，X沒有反應。性交後，申請人再問：「唔OK呀？」X回覆：「唔」。申請人解釋他問這個問題是他看見X事後沒有表情，不知道她在想甚麼。之後，兩人一起洗澡，然後離開酒店。" } }, { "doc_id": 44, "seg_id": 13, "translation": { "en": "Special feature of this case", "zh-HK": "本案特殊之處" } }, { "doc_id": 44, "seg_id": 14, "translation": { "en": "Obviously, the special feature which distinguishes this case from other rape cases is that at no time before, during or after any one of the intercourse did X say anything or do anything to indicate that she did not consent to any one of the intercourse. The contact between these two people lasted quite some time. The applicant had 4 sessions of sexual intercourse with X and after that, he bathed her. Then he left the hotel with her and went to a shop, and then accompanied her all the way until she boarded a bus. The behavior of X throughout this process was hard to comprehend. If she did not consent to intercourse, why did she not do or say anything to resist? Even taking into account the possibility that she might still be affected by the traumatic experience she suffered during her childhood ─ she had been assaulted ─ and so she was so frightened that she did not know what to do at the initial stage, it is impossible that she would continue to behave in this nil-resistance way at the latter stage of the incident. Such behavior is different from the reaction which a girl or a woman would demonstrate when she is forced to have sexual intercourse. X did say that before the intercourse she had tried to resist by, for example, keeping away from the applicant, dodging or moving her body towards the foot of the bed; but she also said that her acts of resistance were like playing, like tickling the applicant or pushing him away with her hands. Moreover, X’s evidence showed that in the evening before the incident when she were talking with the applicant on the phone, what the applicant said already touched upon sex, for example, he said that he had sexual relationships with some models and singers, and that if X wanted to join the show business she had to pay a price, to go to bed with various people.", "zh-HK": "明顯地本案與其他強姦案不同及特別之處是X無論在性交前、性交進行期間及性交後均沒有用任何言語或動作表示她是不同意性交。兩人接觸的時間甚長，申請人曾經與X進行過四次性行為。之後申請人替她洗澡，又與她一同離開酒店到一間商店，然後申請人送X上車。在整個過程中X的表現實在令人費解的。如果她是不同意性交，為何她不用行動或說話反抗。就算她因為童年被毆打的陰影，初時受驚不知所措，但她不可能在之後的過程仍是保持這種沒有反抗的態度，這是有異於一名女子被人強行性交的反應。雖然X說在性交前她曾試圖反抗，例如避開申請人、閃避或將身體下移，但她又說她的反抗行為是好像玩耍似的，如搔癢申請人或用手戳開他。X的證供亦顯示雙方在事發前一晚通電話時申請人所說的說話已觸及性行為，例如：申請人曾經與一些模特兒及歌星有性關係；如果X要入娛樂圈她要付出代價；陪人上床等的談話。" } }, { "doc_id": 44, "seg_id": 15, "translation": { "en": "What directions should be given to the jury", "zh-HK": "如何引導陪審團" } }, { "doc_id": 44, "seg_id": 16, "translation": { "en": "We think that the natural and reasonable response of a person equipped with legal knowledge when confronted with these facts would be to doubt whether the prosecution could prove beyond reasonable doubt that X did not consent to having sexual intercourse with the defendant. In other words, would a girl or woman who does not consent to sexual intercourse behave in the same way as X did? We consider that under these circumstances it was necessary for the Deputy Judge to give clear directions to the jurors, who, though well educated, did not have knowledge about the law, so as to bring home to them how the prosecution could be able to discharge their burden of proving beyond reasonable doubt that the applicant had committed the offence charged. Before the jury gave their verdict of guilty on the basis of such evidence, they were required to consider carefully whether X had, as she said, never consented to sexual intercourse throughout the whole course of the incident, or whether, as alleged by the applicant, the reason for X behaving in such a way after she met the applicant was that she had already agreed during the telephone conversation to go to bed with him. Furthermore, even if X did not say on the telephone she would do that, could her behaviour in the hotel room support the applicant’s allegation that she consented to sexual intercourse? The Deputy Judge was certainly entitled to point out to the jury the strengths and weaknesses in the evidence of the prosecution and of the defence, but such directions must not downplay those areas of X’s evidence which could cause one to feel puzzled. In our judgment, owing to the special feature of this case, there was every reason why the Deputy Judge should direct the jury’s attention to this special feature and give prominence to the conflict in the evidence in this aspect, so that they could focus their attention on this part of the prosecution evidence which was most likely to cause one to doubt and was most difficult to comprehend, thereby enabling them to understand it was essential that they could not find the applicant guilty unless they had no reasonable doubt.", "zh-HK": "本庭認為任何一名有法律知識的人士面對這些案情的自然及合理反應是會質疑在這情況下控方是否可以在毫無合理疑點下證明X是不同意與申請人性交的。換句話說，一名不同意性交的女子是否會有X的表現呢？本庭認為李法官在這情況下是有需要對這群雖然高學歷但沒有法律知識的陪審員作出一些清晰的指引，好讓他們清楚知道控方要在毫無合理疑點下證明申請人干犯控罪的舉證責任是如何實踐的。陪審團對這些證供在作出定罪裁決前必須慎重考慮X是否如她所說在整個過程中都是不同意性交的，又抑或是如申請人所指X與他見面後的表現是因為X在電話中已經同意與他上床呢？另外就算X在電話上沒有說她會這樣做，她在酒店房間的表現是否可以支持申請人所說X是同意性交？李法官當然有權向陪審團說明控辯雙方證供的強弱之處，但這些指引不可以淡化X這些令人產生疑惑的證供。反而本庭認為由於本案的特殊案情，李法官更需要向陪審團引導這特殊的案情，凸顯這方面的衝突，好讓他們將注意力集中於控方案情中最令人產生疑點、費解的一環，從而使他們了解他們確實只可以在毫無合理疑點下才能裁定申請人罪名成立。" } }, { "doc_id": 44, "seg_id": 17, "translation": { "en": "The case of Jim Fai", "zh-HK": "Jim Fai 案例" } }, { "doc_id": 44, "seg_id": 18, "translation": { "en": "In Jim Fai v. HKSAR [2006] 9 HKCFAR 85, the Court of Final Appeal set down the following principles as to what directions should be given to the jury about the treatment of defence evidence and prosecution evidence:", "zh-HK": "終審法院在Jim Fai v. HKSAR [2006] 9 HKCFAR 85一案就法官如何引導陪審團處理辯方證據及控方證據定出以下原則：" } }, { "doc_id": 44, "seg_id": 19, "translation": { "en": "就陪審團商議裁決而言，處理辯方證據與處理控方證據之間有着重大分別。陪審團只能在肯定控方證據屬實並可予倚賴的情況下裁定被告人罪名成立。陪審團若然不相信控方證據或對該證據存有合理懷疑，便不得根據該證據而裁定被告人罪名成立。另一方面，陪審團即使完全拒納辯方證據，仍須肯定控方證據屬實且無合理疑點，方能裁定被告人罪名成立。若然陪審團覺得辯方為辯白而提出的證據屬實或可能屬實，則辯方已對控方案情提出充分疑點，在這情況下，陪審團將要裁定被告人無罪。(見第16段)\t(1)\tThere is a fundamental difference between the treatment of defence evidence and prosecution evidence in the jury’s deliberation of their verdict. It is only when the jury feel sure that the prosecution evidence is true and can be relied on that they can convict the accused. If they disbelieve the prosecution evidence or entertain a reasonable doubt in such evidence, they are not to convict on the basis of it. On the other hand, even if the jury totally reject the defence evidence, they still have to be sure that the prosecution evidence is true and that there is no reasonable doubt before they can convict the accused. If they think that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case. In that case, the jury have to acquit him. (See paragraph 16)", "zh-HK": "(1)" } }, { "doc_id": 44, "seg_id": 20, "translation": { "en": "上述重大分別，乃是運用“控方須在無合理疑點下證明被告人有罪”原則的必然結果。因此，關乎應當如何處理辯方證據的陪審團指示，與關乎舉證責任和標準的指示有着內在關連。法官務須以清楚簡潔的方式，就這方面妥為指示陪審團。(見第17段)\t(2)\tThis crucial difference necessarily follows from the application of the principle that it is for the prosecution to prove the guilt of an accused beyond reasonable doubt. The direction to the jury on how they should approach defence evidence is thus intrinsically linked up with the direction on the burden and the standard of proof. It is essential that the jury should be properly directed on this aspect in clear and simple terms. (See paragraph 17)", "zh-HK": "(2)" } }, { "doc_id": 44, "seg_id": 21, "translation": { "en": "Specimen directions", "zh-HK": "指引樣本" } }, { "doc_id": 44, "seg_id": 22, "translation": { "en": "The crucial point of these principles is that if the jury consider that the defence evidence is true or may be true, they have to find the defendant not guilty. This is a concrete manifestation of the requirement that they can convict if and only if they “have no reasonable doubt”. Paragraph 44A of the Specimen Directions in Jury Trials compiled by the Judicial Studies Board of Hong Kong clearly says that the defendant “does not have to prove his innocence. He does not have to prove anything… It is for [the jury] to decide whether [they] believe the evidence of the defendant… or whether it may be true… if the account given by the defendant … is or may be true, then the defendant must… be acquitted”.", "zh-HK": "上述原則的重點是若果陪審團認為辯方證據屬實或可能屬實便需要裁定被告人無罪。這個原則是體現他們必須是在「無合理疑點」的情況下才可作出定罪。香港司法人員培訓委員會所制訂的「刑事案件陪審團指引樣本」的第44A段亦清楚說明「被告人不需要證明自己清白，他不需要證實任何事情。陪審團是需要決定他們是否相信被告人的證供或者這些證供是否可能是真實的。如果被告人所說屬實或者有可能是真實的話，陪審團是必須判他無罪的。」" } }, { "doc_id": 44, "seg_id": 23, "translation": { "en": "In HKSAR v. Or Chung Yeung [2004] 3 HKLRD 645, the defendant was convicted of rape. His ground of appeal was that the trial judge failed to direct the jury as to what should be done if the evidence given by him “may be true”. The Court of Appeal acknowledged the importance of this direction to a jury with no legal knowledge when they were deliberating their verdict. However, the Court of Appeal also stressed that the court could not deal with the judge’s failure to give directions about what should be done if the evidence given by the defendant “may be true” in isolation and overlook the facts of the case and the entire set of directions. The Court of Appeal had to look at the entire set of directions given by the judge when considering whether the verdict was rendered unsafe by the absence of a relevant direction. In that case, even though the trial judge did not give any direction as to what should be done if the defendant’s evidence “may be true”, he had actually given directions to the jury about how to apply the relevant laws to the facts, so the Court of Appeal found that the verdict was still safe.", "zh-HK": "在香港特別行政區訴柯重陽[2004] 3 HKLRD 645一案，被告人被裁定「強姦」罪罪名成立，他的上訴理由是原審法官沒有給予陪審團「他的證供可能是真實」的指引。上訴法庭確認這個指引對一些沒有法律知識的陪審團在作出裁決時的重要性，但上訴法庭同時指出不可以單獨處理法官沒有作出「被告人的證供的可能是真實」指引的議題而忽略了案情及整份指引，上訴法庭需要以法官作出的整份指引來考慮是否因為欠缺這一個指引而令到裁決不穩妥。在該案雖然原審法官沒有作出「被告人的證供可能是真實的」的指引，但由於他實際有向陪審團指示如何將有關法律運用於案情上，上訴法庭認為有關的判決仍是穩妥的。" } }, { "doc_id": 44, "seg_id": 24, "translation": { "en": "Directions given in this case", "zh-HK": "本案的指引" } }, { "doc_id": 44, "seg_id": 25, "translation": { "en": "In this case, although the Deputy Judge had clearly explained the burden of proof at the early part of his directions to the jury, he did not give any directions as to how they should proceed if “the defendant’s evidence may be true”. This can be seen from the extracts below:", "zh-HK": "在本案雖然李法官在陪審團指引的前端已經清楚說明舉證責任，但他沒有對陪審團作出「被告人證供可能是真實的」的法律指引，這可從以下節錄的片段可見：" } }, { "doc_id": 44, "seg_id": 26, "translation": { "en": "“ …… The prosecution has the burden of proving each and every element of the offence by making you sure that the defendant did commit the rape specified in the indictment. If you are sure of that, you should return a verdict of ‘guilty’. If you are not sure, your verdict should be ‘not guilty’.", "zh-HK": "「……控方就有舉證嘅責任去證實構成控罪嘅每個要素，令到你哋肯定被告人係犯咗公訴書上面嘅強姦罪。如果你哋肯定，就應該裁定被告人有罪喇，如果你哋唔肯定呢，就應該判被告人冇罪喇。" } }, { "doc_id": 44, "seg_id": 27, "translation": { "en": "You may have heard the phrase ‘beyond reasonable doubt’ used by the lawyers. Actually, it has the same meaning as ‘sure’. I must emphasis this: the defendant does not have to prove his innocence and does not have to call any witness. The defendant in this case has chosen to give evidence. He is not different from any other witnesses; that is to say, you should examine his evidence by using the same standard. However, even if you completely reject the defendant’s evidence, it does not follow that the defendant is guilty, because you must still consider the prosecution evidence to see whether it is sufficient to make you sure that the defendant is guilty. To put it simply, you are not to choose who you would believe. You must consider whether the prosecution evidence is sufficient……", "zh-HK": "你哋可能聽過律師用「毫無合理疑點」呢一個詞彙嘅，其實個意思同「肯定」係一樣嘅啫，本席一定要強調呢，就係被告人係冇責任證明自己冇罪，亦都冇責任去傳召證人。本案嘅被告人就選擇作供，佢同其他證人係冇分別嘅，即係話你哋應該用同一個準則去判斷佢嘅證供，不過就算你哋完全唔接受被告人嘅證供，亦都唔等於被告人有罪，因為你哋必須考慮控方嘅證據係唔係足夠令到你哋肯定被告人有罪。簡單講呢，你哋唔係揀信邊個，你哋一定要考慮控方嘅證據是否足夠….." } }, { "doc_id": 44, "seg_id": 28, "translation": { "en": "All right, let me summarize it as follows: If you have any doubt about whether X did not consent to the sexual intercourse, that means there is a doubt and the rape is surely not established. Then you can move on to consider the molesting charge, that is, the charge of indecent assault.”", "zh-HK": "好喇，我而家總結一下，如果你哋對X是否不同意性交有懷疑，即係有疑點呢，強姦罪就當然唔成立喇，咁你哋就可以進一步考慮非禮罪，即係猥褻侵犯罪。」" } }, { "doc_id": 44, "seg_id": 29, "translation": { "en": "Having said that, as stated above, this omission will not necessarily render the jury’s verdict unsafe or unsatisfactory. The entire set of directions has to be looked at before a decision can be made. First of all, having examined the entire set of directions, we are of the view that in relation to some important and heavily disputed issues the Deputy Judge did not give the jury clear directions which could make them realize how the principle of “beyond reasonable doubt” operated in practice. He only pointed out to the jury the differences between the prosecution case and the defence case, and enjoined them to evaluate which side was more reasonable. However, he did not go a step further to remind the jury to consider whether they, notwithstanding these issues, could be sure of the defendant’s guilt. This can be illustrated by the following directions about X’s evidence:", "zh-HK": "雖然如此，正如上文所說這個遺漏並不會必然令陪審團的裁決變為不穩妥或不安全，法庭仍需考慮整份指引才可作出判決。首先本庭認為綜觀本案的整份指引，李法官並沒有在一些重要及被受爭議的議題上向陪審團作出清晰的指引，讓他們掌握「毫無合理疑點」原則的實質運作，他只是向陪審團分別指出控辯的分歧或者要他們考慮誰的說法是比較合理，但他卻沒有進一步提醒陪審團這些爭議是否令他們肯定申請人的罪責。這可從以下涉及X的證供指引可見：" } }, { "doc_id": 44, "seg_id": 30, "translation": { "en": "“ …… You must look carefully at the whole conversation. If X had agreed to go to bed to sleep with him, [but] no indication whatever can be found in any part of the conversation. I ask you to look at it carefully when you retire to deliberate. Well, in the telephone conversation did X agree to go to bed to sleep with him? The defendant has his version and X hers. Earlier on, I asked you to go over X’s records of interview and I have told you what the defendant said under caution when he was interviewed. You have seen how the two of them gave evidence in court. You should consider where the truth lies. What was actually in X’s mind when she went to meet him on 21 July? ......", "zh-HK": "「……整段對話大家要小心睇下，X如果係應承咗上床陪瞓，整段對話完全睇唔到有呢一啲端倪呀，我想大家入去考慮嘅時候睇清楚。嗱，究竟喺個電話裡面X係咪應承咗上床陪瞓呢，被告人一個版本，X一個版本，我頭先叫你哋睇咗X嗰啲會面紀錄，亦都話過畀大家聽，被告人喺佢嘅警誡會面嗰度講嘅嘢。你哋睇過佢哋兩個喺法庭嗰度作供嘅，你哋應該考慮就係究竟個事實喺邊度，究竟7月21號X赴約嘅時候佢究竟係諗緊乜嘢嘅呢？……" } }, { "doc_id": 44, "seg_id": 31, "translation": { "en": "…… You must pay attention to this: X’s evidence about what she did at the time in fact tallies with the defendant’s evidence about what X did, and that is, X was just lying there, without resistance. If you believe that was how X behaved at the time, then this is evidence which you should consider whether it is useful for deciding whether X at the time consented or not. ……", "zh-HK": "……你哋要留意，就係X所講當時佢嘅行為同被告人講X嘅行為其實係都吻合個喎，就係話X淨係瞓喺度睹，冇反抗，如果你接受X當時嘅表現係咁樣樣，咁呢一個證據係你應該考慮睇下有冇用喇，對於你諗X當時究竟係同意抑或不同意。……." } }, { "doc_id": 44, "seg_id": 32, "translation": { "en": "…… Members of the jury, is it reasonable to put up resistance in such an unclear way? Was X telling the truth when she said she was scared because of the effect of her traumatic experience? These are issues about which you must make a decision after you have gone over the evidence. Of course, the fact that at the time X did not do anything, just stiffly lying there, does not necessarily mean that she did not consent. It is possible that at the time she was shy or felt embarrassed. In this connection, you have watched the video tapes and have seen X’s demeanour when she was giving evidence. You should make your judgment by common sense. You should consider for what purpose the meeting was originally arranged. If you think that the purpose was indeed to go to bed with the defendant, then why X did not have any reaction? If the original purpose of the meeting was actually about making up and photo-taking, but suddenly it changed to a matter of going to bed, then is it reasonable for X to be afraid and didn’t know what to do?”", "zh-HK": "……各位陪審員，呢啲咁唔明顯嘅反抗行為係咪合理呢?X話佢驚嗰個陰影又係咪屬實呢，呢啲係你哋要睇過證供之後去決定嘅嘢。當然，X當時佢冇動作，好僵更咁瞓喺度呢，唔係一定表示佢唔同意個喎，有可能佢當時係怕醜或者難為情呀。呢方面，大家睇過錄影帶同埋睇過X作供嘅表現，大家應該用常識去判斷一下。你哋要考慮呢個約會原本嘅目的係咩嘢，如果你哋認為呢個目的其實就係陪被告人上床呢，點解X會完全冇反應嘅呢?如果呢個約會原本嘅目的其實係化妝、影相，但係突然間變咗上床喎，咁X驚，不知所措，係咪合理呢?」" } }, { "doc_id": 44, "seg_id": 33, "translation": { "en": "Besides, it can be seen from the above extracts that the direction given by the Deputy Judge to the jury regarding X’s absence of reaction during the intercourse was an invitation to them to consider whether X behaved in this way was because she was shy, felt embarrassed, was afraid and did not know what to do. When the Deputy Judge dealt with the applicant’s evidence, he also reminded the jury that the applicant had said that during the intercourse X was “expressionless”, and asked them to consider whether the applicant’s evidence that it did not occur to him that X did not consent to intercourse was reasonable. We do not think that the directions given by the Deputy Judge were comprehensive. He should have asked the jury to consider whether X behaved in the way she did because she thought that to have sexual intercourse with the applicant was the price she had to pay for gaining access to the show business, and therefore she had no reaction during the intercourse with the applicant. This view of the events is not inconsistent with the allegation that she consented to the intercourse. The intercourse in question did not involve any love or affection between a man and a woman but was only a sexual transaction for achieving the purpose of enlisting the applicant’s assistance for her gaining access to the show business.", "zh-HK": "另外，從上述節錄中可見李法官對陪審團作出X在性交時沒有反應的指引是要求陪審團考慮X這樣的表現是否因為她感到害羞、難為情、驚怕及不知所措。李法官處理申請人的証供時亦提醒陪審團申請人曾提及X在性交時是「面無表情」及要求他們考慮申請人聲稱他意會不到X不同意性交的說法是否合理。本庭不認為李法官所作出的有關指引是全面的，他應要求陪審團考慮X的表現是否因為她以為與申請人性交是她進入娛樂圈所要付出的代價，因而在與申請人性交時沒有反應，這事與她同意該次性交的說法並沒有自相矛盾，這次性行為並不涉及任何男歡女愛的因素，這只是一項肉體交易以達成申請人協助她進入娛樂圈的目的而已。" } }, { "doc_id": 44, "seg_id": 34, "translation": { "en": "We agree that the Deputy Judge was entitled to point out to the jury areas in the applicant’s evidence where there were contradictions or where the truthfulness was questionable. However, since the law requires that evidence given by the defense should be approached according to a different principle, after the Deputy Judge expressed certain opinions which might be detrimental to the applicant’s case, it was necessary to remind the jury that even if they rejected the evidence given by the applicant, they still had to be sure that the prosecution had proved beyond reasonable doubt that the applicant did commit the offence.", "zh-HK": "本庭認同李法官是有權向陪審團指出申請人證供犯駁之處或者其真實性存疑之處，但既然法律的規定是需要以不同的原則去處理辯方的證供，李法官在向陪審團提出一些對申請人的證供可能存有不利的見解後是有必要重申就算他們不接受申請人的證供，他們仍須肯定控方是在毫無合理疑點之下證明申請人干犯控罪的。" } }, { "doc_id": 44, "seg_id": 35, "translation": { "en": "In this case, before the Deputy Judge finished his summing up of the facts about the rape, he made a number of rather sharp comments to the jury in the form of questions about the applicant’s evidence:", "zh-HK": "在本案，李法官在結束涉及「強姦」罪的案情指引之前就申請人的證供向陪審團作出一些比較尖銳的提問：" } }, { "doc_id": 44, "seg_id": 36, "translation": { "en": "\t好，被告人承認喺麥當勞嗰度問X得唔得，呢個時候佢仍然未肯定X係咪同意做愛喎，佢話，呢個係佢喺法庭嗰度講嘅，係控方馬大律師問嘅，但係佢仍然帶X就去翠園小築，佢話因為X冇問，冇發問，佢以為X知道去嗰度就係做愛，上床喇咁。點解個責任會喺X嗰度呢？點解被告人唔同X講清楚呢，講清楚又有啲咩嘢困難呢，大家可以諗下喇。…….」\t“\tWell, the defendant admitted that in the McDonald’s restaurant when he asked X “Can you do that?”, at that moment he was still not sure whether X agreed to make love or not. He said that. That’s what he said in court in response to a question asked by Mr. Ma, the prosecuting counsel. But he still took X to Chui Yuen [transliteration] Villa（翠園小築）. He said because X did not ask, did not ask him about that, he thought X knew that they were going there to make love, to go to bed. Why should X have this responsibility? Why didn’t the defendant tell X clearly? What difficulty there was in telling her clearly? You can think about that. ……”", "zh-HK": "「" } }, { "doc_id": 44, "seg_id": 37, "translation": { "en": "好喇，被告人仲講，佢話「上床陪瞓」呢個字太淫賤，唔知大家有冇記得，佢所以就同X講「可唔可以服待佢」咁，佢話「服待」呢個字比較文雅一啲，好喇，當指出畀佢睇，「上床陪瞓」呢個詞係佢同X初次談及呢個問題嘅時候佢自己用個喎，咁佢又話，其實佢就話喺係法庭上面用呢個字就唔係幾好，所以佢喺法庭嗰度用「服待」呢個字。佢仲話喎，同X講呢，佢驚X唔明「服待」嘅意思，所以佢就話上床陪瞓，咁但係佢又更加再進一步講，佢話其實佢講嘅就係「陪我上床」，佢講得好清楚嘅，佢話。呢個咁簡單嘅問題，被告人點解會回答咁多個版本呢，佢係迴避緊抑或佢真係畀人問到頭昏腦脹亂咗佢嘅思路呢?嗱，大家睇到佢坐喺呢度作供嘅情況，你哋自己判斷喇。」\t“…… Look, the defendant also said this: he said that the phrase ‘go to bed to sleep with someone’ was too obscene —— I don’t know whether you remember that —— so he said to X, ‘Can you provide any service to him’. He said that the phrase ‘provide service’ sounded more decent. Well, when it was put to him that he himself used the phrase ‘go to bed to sleep with someone’ when he and X talked about this matter for the first time. Then he said what he really meant was that it was not very good to use this phrase in court, so he used the phrase ‘provide service’ in court. He further said he was afraid that if he told X about that, she might not understand what ‘provide service’ meant, so he said ‘go to bed to sleep with someone’. Then he even went further and said, he said that what he actually said was ‘go to bed with me’. He said that very clearly; he said that. Why are there so many versions of the defendant’s reply to such a simple question? Was he trying to evade the question or was he really confused by the questioning and became muddle-headed? Well, you have seen his demeanour when he was sitting here giving evidence. Make your own judgment.”", "zh-HK": "「……" } }, { "doc_id": 44, "seg_id": 38, "translation": { "en": "好喇，大家睇到被告人喺法庭作供，佢嘅證供同佢嘅會面紀錄其實有幾處係明顯嘅出入口嘅，我頭先講咗部分喇，佢解釋就係話佢好驚，一片空白，事後諗番起。各位陪審員，你哋用常識去判斷，究竟佢真係唔記得抑或佢係自圓其說呢？被告人口喺錄影以帶其他嘢，包括被告人嘅錄影會面謄本。」\t“\tAlright, you have seen how the defendant gave evidence in court. In fact there are a number of glaring discrepancies between his evidence and what he said in his records of interview. Earlier on, I have mentioned some of them. His explanation was that he was very afraid, his mind blanked out and that he remembered it later. Members of the jury, please judge it by your common sense. Did he really forget that or was he making up excuses? You can also examine the video tapes about the defendant, including the transcripts of the defendant’s video-recorded interviews.”", "zh-HK": "「" } }, { "doc_id": 44, "seg_id": 39, "translation": { "en": "The intention of the Deputy Judge’s making these sharp comments about the applicant’s evidence was obviously to motivate the jury to examine and doubt the veracity of the applicant’s evidence. As stated above, the Deputy Judge was entitled to do this; but at the same time, according to the legal principle, even if the jury did not accept the applicant’s evidence, they still had to be sure that the applicant had really committed the offence. We consider that at this particular stage when the Deputy Judge was about to finish his summing up about the rape and when he gave these directions which were intended for attacking the veracity of the applicant’s evidence, it was imperative for him to remind the jury again of this cardinal principle. In view of the absence of guidance in this respect, we believe that it became even more necessary that the Deputy Judge should have given directions about what should be done “if the account given by the applicant may be true”.", "zh-HK": "李法官作出這些針對申請人證供的尖銳評論明顯是讓陪審團思考及質疑申請人證供的真實性。正如上文所說，李法官是有權這樣做，但同時基於法律原則，就算陪審團不接納申請人的證供，他們仍需要肯定申請人真的干犯了控罪。本庭認為特別是當李法官在即將結束他就有關「強姦」罪提出的一些質疑申請人證供真實性的指引時，他是有必要再提醒陪審團這項重要的原則。本庭認為在欠缺這項指引的情況下，李法官更需要給予「申請人所說可能是真實的」的指引。" } }, { "doc_id": 44, "seg_id": 40, "translation": { "en": "Although Mr. Yuen, counsel for the applicant, did not rely on the argument that “the defendant’s evidence may be true”, we are of the view that the gist of the applicant’s grounds of appeal was that the Deputy Judge failed to give comprehensive directions to the jury, so that it was not brought home to them how to apply the principle of no conviction unless it is “beyond reasonable doubt”; and it was beyond dispute that the aforementioned guidance was indeed absent.", "zh-HK": "雖然代表申請人的袁國華大律師沒有依賴「被告人的證供可能是真實的」論點，但本庭認為申請人上訴理由的實質論點都是關於李法官未能給予陪審團一個全面的指引，令他們未能掌握定罪基於「毫無合理疑點」的運作，而上述指引的欠缺亦是不能被爭議的事。" } }, { "doc_id": 44, "seg_id": 41, "translation": { "en": "Reactions of Y and W", "zh-HK": "Y及W的反應" } }, { "doc_id": 44, "seg_id": 42, "translation": { "en": "In addition, we find that there were errors in the Deputy Judge’s way of dealing with the evidence of Y and W. The Deputy Judge said:", "zh-HK": "另外本庭認為李法官對於Y及W證供處理是有錯誤。李法官說：" } }, { "doc_id": 44, "seg_id": 43, "translation": { "en": "“Please pay attention to this: when X complained to Y and W, she did not use the word ‘rape’. This is a fact and is part of the evidence. However, after these two witnesses heard what X said, both of them suggested to X that she should report to the police. Was this reaction consistent with X consenting to or not consenting to the sexual intercourse? That is to say, was it consistent or not consistent with the giving of consent, or was it consistent with not giving consent? Please think about it carefully. I emphasize this: X had never said that she had been raped.”", "zh-HK": "「大家要留意呢，就係X同Y同埋W投訴都冇用過『強姦』呢個字嘅，呢個係事實嚟嘅，呢個亦都係證據嚟嘅，不過呢兩位證人聽完X講之後，佢哋都建議X去報警喎，咁呢個反應同X同意或者唔同意性交係咪吻合呢？即係話係吻合同意抑或唔吻合，抑或吻合唔同意呢，大家要小心考慮喇。我強調，就係X從來冇話過自己畀人強姦嘅。」" } }, { "doc_id": 44, "seg_id": 44, "translation": { "en": "Evidence of the recent complaints which X made to Y and W could not be used for negativing X’s consent to the sexual intercourse. Its purpose was merely to show consistency in X’s evidence which would include her evidence as to lack of consent: see Leung Chi Keung v. HKSAR (2004) 7 HKCFAR 526. However, the Deputy Judge directed the jury that they could consider whether the reactions of X and Y were consistent with whether X consented or did not consent to the sexual intercourse. We believe that such direction exceeded the limits of the legitimate use of evidence concerning recent complaints and would confuse the jury, because the reactions of Y and W not only could not prove that X did not consent to the sexual intercourse, they could not even be used to support the consistency of X’s evidence.", "zh-HK": "X對Y及W的「新近投訴」證據是不可用來否定X同意性交，它唯一用途是證明X的證供是一致的，而這些一致的證供包括X不同意申請人行為的證供：見Leung Chi Keung v. HKSAR (2004) 7 HKCFAR 526。但李法官卻指引陪審團可以考慮Y及W的反應是否與X不同意或同意性交之說吻合。本庭認為這指引超越「新近投訴」證據的作用。它是會使陪審團困擾的，因為Y及W的反應不單只不可以證明X不同意性交，它更不可以支持X說法一致。" } }, { "doc_id": 44, "seg_id": 45, "translation": { "en": "Conversation between Y and W", "zh-HK": "Y及W的談話" } }, { "doc_id": 44, "seg_id": 46, "translation": { "en": "The Deputy Judge summed up W’s evidence and gave directions as follows:", "zh-HK": "李法官引述W的證供及作出指引如下：" } }, { "doc_id": 44, "seg_id": 47, "translation": { "en": "“Another witness was W. …… In the evening of 21 July, W received a MSN message from X. What did X ask him/her at that time? Please pay attention to this: She asked him/her whether the website of the defendant’s company was reliable. In the course of the conversation, X told W on the phone that somebody did it to her. W’s response was that he/she understood X to mean that she had been raped. W also said that at that time X’s words came out from her mouth brokenly and she spoke in a way different from that in normal times. W suggested to X that she should report to the police. X’s answer was that —— she has said that in court —— she worried very much that the matter would be exacerbated and feared that her parents would give her a good dressing down. Later, when W was being cross-examined, he/she said that actually X did not mention the word ‘rape’. You may notice that after lengthy questioning by the defence counsel Mr. Wong, at last W remembered that X at that time told him/her that she had a friend who was under 16 and who had sexual intercourse with someone; and X asked W whether that friend, i.e. her friend under 16, had broken the law. W explained that he/she simply forgot that, that is, forgot this conversation; and that he/she was not trying to help X. Please think about this yourselves.”", "zh-HK": "「另一個證人係W，……就喺7月21號晚W就收到X嘅MSN喎，咁X其實當時係問咩嘢呢？大家留意，佢係問緊被告人公司嗰個網址係咪可靠，X講講下就喺電話度就同W話佢畀人咩嘢咗，咁W個反應就係佢意會係強姦嘅意思，咁W更加話當時係斷斷續續嘅X講嘢，同平時係唔同嘅。咁W就提議X報警，X表示，呢個喺庭上面講過嘅，佢話好怕件事搞大，驚住佢屋企父母責備佢。W後來被盤問嘅時候，就話其實X冇講強姦呢樣嘢嘅，大家或者會留意呢，就係辯方王大律師問咗好耐喇，咁W最終就記得囉喎，就係話X當時問佢，佢有個朋友16歲以下嘅，同人發生咗性行為，咁嗰個朋友，即係嗰個16歲以下嘅朋友有冇犯法呢咁？咁W就話佢其實唔記得啫，即係唔記得呢段對話，佢唔係想幫X咩嘢嘅，咁呢個你自己考慮喇。」" } }, { "doc_id": 44, "seg_id": 48, "translation": { "en": "Our concern is what X told W about a friend of hers who was under 16 and who had sexual intercourse with someone. Who was this friend? If X used this friend to stand for herself and the applicant had sexual intercourse with her without her consent, then why did she ask whether she had broken the law? If this friend was not X, why did X mention him/her at all? Did this friend have sexual intercourse with X and was it related to X’s fear that the matter would be exacerbated? We think that the Deputy Judge should have had these doubtful areas clarified before letting the jury consider W’s evidence.", "zh-HK": "本庭關注的是X對W說她有一個小於16歲的朋友與人發生性行為的事。這位朋友是誰呢？如果X是以是這位朋友比喻自己，而申請人是在她不同意的情況下與她性交，為何她會問她是否觸犯法律？如果這位朋友不是X本人，為甚麼X會提起他？這位朋友是否曾與X有性行為，這是否與X說恐怕把事情弄大有關？本庭認為李法官有需要澄清這些疑點，才可以讓陪審團考慮W的證供。" } }, { "doc_id": 44, "seg_id": 49, "translation": { "en": "Conclusion on rape", "zh-HK": "強姦罪的總結" } }, { "doc_id": 44, "seg_id": 50, "translation": { "en": "Judging from the entire set of directions, we find that the Deputy Judge failed to give appropriate directions to the jury to assist them to consider whether they could resolve the heavily disputed issues in this case on the basis that any benefit of the doubt should be given to the applicant. We hold that the verdict of the jury is unsafe and unsatisfactory.", "zh-HK": "本庭認為綜觀整份指引，李法官是沒有給予合適的指引來協助陪審團去思考他們可否解決案中極受爭議性的疑點而最終將疑點的利益歸予申請人，本庭認為陪審團的裁決是不穩妥及不安全的。" } }, { "doc_id": 44, "seg_id": 51, "translation": { "en": "Our order", "zh-HK": "本庭的命令" } }, { "doc_id": 44, "seg_id": 52, "translation": { "en": "Section 83A of the Criminal Procedure Ordinance, Cap. 221 of the Laws of Hong Kong, provides that when dealing with an appeal against conviction, the Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict of guilty of the offence originally charged a verdict of guilty of another offence. The Deputy Judge had informed the jury that they could find the applicant guilty of an alternative offence, namely Indecent Assault. Before we make our final decision about this appeal, we need to hear submissions from the parties on the following matters:", "zh-HK": "根據 《刑事訴訟程序條例》 (香港法例第221章)第83A條，上訴法庭在處理定罪上訴時並不一定需要判決上訴得直或駁回上訴，而是可以將原本控罪的定罪以另一項罪行的定罪取代。李法官曾經告訴陪審團，他們是可以裁定申請人干犯一項交替性罪行，即「猥褻侵犯」罪。本庭在作出針對上訴的最終判決前，需要聆聽雙方就下列議題的陳詞：" } }, { "doc_id": 44, "seg_id": 53, "translation": { "en": "本庭應否以「猥褻侵犯」罪或其他交替控罪來取代原本的定罪。\t(1)\tWhether this court should substitute a conviction for Indecent Assault or another alternative offence for the original conviction;", "zh-HK": "(1)" } }, { "doc_id": 44, "seg_id": 54, "translation": { "en": "如果本庭決定在不以交替控罪來取代原本定罪的情況下撤銷原本定罪，答辯人會否要求重審。\t(2)\tWhether the respondent will seek a retrial if this court decides to set aside the original conviction without substituting a conviction for an alternative offence for the original conviction.", "zh-HK": "(2)" } }, { "doc_id": 44, "seg_id": 55, "translation": { "en": "We will fix another hearing date for hearing submissions from both parties. The applicant shall be remanded in jail pending the hearing.", "zh-HK": "本庭會另訂審訊日期聆聽雙方陳詞，申請人在候審期間還押監房。" } }, { "doc_id": 44, "seg_id": 56, "translation": { "en": "Ms. Memi Ng, Senior Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官吳美華代表。" } }, { "doc_id": 44, "seg_id": 57, "translation": { "en": "Mr. Bernard Yuen, instructed by Anthony So & Co., for the Applicant (conviction).", "zh-HK": "申請人(定罪)：由蘇震共律師行轉聘袁國華大律師代表。" } }, { "doc_id": 44, "seg_id": 58, "translation": { "en": "Applicant, acting in person, present (sentence).", "zh-HK": "申請人(刑期)：無律師代表，親自出席。" } }, { "doc_id": 45, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the judgment of the Court):", "zh-HK": "高等法院上訴法庭副庭長楊振權頒發上訴法庭判案書：" } }, { "doc_id": 45, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 45, "seg_id": 3, "translation": { "en": "On 24 September 2014, at Frankfurt Airport, German Customs officers intercepted three postal parcels from Bolivia and destined for Hong Kong. The names, addresses, and contact phone numbers of the recipients of the three postal parcels were all different.", "zh-HK": "2014年9月24日，德國海關關員在法蘭克福機場截獲三個從玻利維亞寄出，目的地是香港的郵包。該三個郵包的收件人的名字、地址和聯絡電話號碼都是不同的。" } }, { "doc_id": 45, "seg_id": 4, "translation": { "en": "The three postal parcels each contained a similar quantity of powder with a similar quantity of cocaine respectively. The total weight of the powder was 4.96 kg and the total weight of cocaine was 4.23 kg with a market value of HK$4,800,000.", "zh-HK": "三個郵包內分別載有份量相約的粉末，內含份量相約的可卡因。粉末總重量為4.96公斤，內含可卡因的總重量為4.23公斤，巿價則約為480萬港元。" } }, { "doc_id": 45, "seg_id": 5, "translation": { "en": "On 7 October 2014, a German Customs officer escorted the three postal parcels to Hong Kong and handed them over to the Customs and Excise Department for their handling.", "zh-HK": "2014年10月7日，一名德國海關關員護送上述三個郵包到香港及將它們交給香港海關處理。" } }, { "doc_id": 45, "seg_id": 6, "translation": { "en": "On 8 October 2014, Customs and Excise Officer 07193, taking charge of one of the parcels [recipient: John Lam, address: 6/F, 333-337 Tai Nam Street, Sham Shui Po, phone number: 9761 7852], used a mobile phone provided by the Department to call the recipient of the parcel, John Lam. At 11:30 am on the same day, (the officer) took the parcel to 333-337 Tai Nam Street, called the number 9761 7852 and succeeded in arranging the delivery of the postal parcel to the recipient.", "zh-HK": "2014年10月8日，香港海關關員07193根據其中一個郵包（收件人：John Lam，地址：深水埗大南街333-337號6/F，電話號碼：9761 7852），以部門提供的手提電話致電郵包收件人John Lam，並在同日上午11時30分帶同該郵包前往大南街333-337號，及致電9761 7852並成功和收件人安排遞交郵包。" } }, { "doc_id": 45, "seg_id": 7, "translation": { "en": "Subsequently, Tang Kwong-ho (transliteration) [Tang] opened the main door of Ground Floor, 333-337, Tai Nam Street. Upon inquiry, the customs officer handed over the postal parcel to Tang. Upon signing to acknowledge receipt (of it), Tang returned to the building with the parcel, but he was eventually arrested.", "zh-HK": "其後鄧光賀（鄧）打開大南街333-337號地下大門。經查問後，海關關員將郵包交給鄧。鄧簽收後，帶同郵包返回大廈內，但結果被拘捕。" } }, { "doc_id": 45, "seg_id": 8, "translation": { "en": "Customs and Excise Officer 06143 arrested the Applicant [Lai Kam-fat] at 12:05 p.m. the same day at the Pei Ho Street Market near the exit on the ground floor of Kweilin Street and found five mobile phones on his person. There were 15 photos on a black Samsung mobile phone, all related to the tracking of the deliveries of the three postal parcels involved in the case. The information stored on a white Samsung mobile phone showed 10 records of communications with Tang’s mobile phone from 9:48 a.m. to 11:54 a.m. on 8 October 2014. The records on the other two mobile phones also showed communications with the Customs officer on many occasions. These communication records were all related to the arrangements with the Customs officer(s) for the delivery of the postal parcel(s) involved in the case.", "zh-HK": "海關關員06143在同日中午12時05分在北河街街巿近桂林街地下出口拘捕申請人（黎錦發），並在他身上搜出5部手提電話。一部黑色三星手提電話內有15張相片，都是和追蹤涉案三個郵包的運送行踪有關；一部白色三星手提電話內載的資料顯示，在2014年10月8日上午9時48分至11時54分，有10次和鄧的手提電話的通話記錄。其餘兩部手提電話的通話記錄亦顯示電話曾多次和海關關員有通話。該些通話記錄和海關關員安排遞交涉案郵包有關。" } }, { "doc_id": 45, "seg_id": 9, "translation": { "en": "Customs and Excise Officer 98201 also found three pieces of paper among the seized items of the Applicant which showed the air waybill numbers and the recipients’ names of the three parcels involved in the case.", "zh-HK": "海關關員98201亦在申請人被扣押的物品中發現三張顯示涉案三個郵包的航空單編號及收貨人名字的紙張。" } }, { "doc_id": 45, "seg_id": 10, "translation": { "en": "With respect to the above incident, the Applicant was charged with conspiracy to “traffic in dangerous drugs” with Tang, “Ko Lo (transliteration)” and other unknown persons. The Applicant pleaded not guilty and was tried before Li J [the trial judge] sitting with a jury.", "zh-HK": "就上述事件，申請人被控和鄧、“高佬”及其他身份不詳的人串謀“販毒”。申請人否認控罪，並在高等法院原訟法院法官李瀚良（原審法官）會同陪審團席前受審。" } }, { "doc_id": 45, "seg_id": 11, "translation": { "en": "On 24 March 2017, the jury unanimously found the Applicant guilty of the charge. On 27 March 2017, the trial judge sentenced the Applicant to 29 years’ imprisonment.", "zh-HK": "2017年3月24日，陪審團一致裁定申請人罪名成立，而原審法官在2017年3月27日判處申請人入獄29年。" } }, { "doc_id": 45, "seg_id": 12, "translation": { "en": "The Applicant filed an application for leave to appeal against conviction and/or sentence.", "zh-HK": "申請人不服定罪及判刑，並提出上訴許可申請，要求獲准就定罪及/或判刑上訴。" } }, { "doc_id": 45, "seg_id": 13, "translation": { "en": "On 9 December 2017, the Applicant notified this Court that he withdrew the application for leave to appeal against sentence and consequently the application was dismissed. Accordingly, this Court only needs to deal with his application for leave to appeal against conviction.", "zh-HK": "2017年12月9日，申請人知會法庭放棄就判刑提出的上訴許可申請，該上訴許可申請亦因而被撤銷。因此，本庭只需處理申請人就定罪提出的上訴許可申請。" } }, { "doc_id": 45, "seg_id": 14, "translation": { "en": "Prosecution Case and Evidence", "zh-HK": "控方指控及證據" } }, { "doc_id": 45, "seg_id": 15, "translation": { "en": "The Prosecution alleged that the Applicant entered into an agreement with a man called “Ko Lo” and Tang, conspiring to receive three postal parcels from Bolivia which contained a large quantity of cocaine. As a result, on 8 October 2014 the Customs and Excise Department carried out the abovementioned controlled delivery operation of one of the postal parcels. The Prosecution alleged that the Applicant knew that the postal parcel contained cocaine and therefore got Tang to receive (it) for him. The Prosecution alleged that the Applicant was responsible for tracking the postal parcel, contacting the courier and making arrangements for Tang to receive the postal parcel.", "zh-HK": "控方指申請人和一名叫“高佬”的男子和鄧達成協議，串謀接收三個源自玻利維亞，內藏大量可卡因的郵包。結果，在2014年10月8日，海關就其中一個郵包進行上述的監控遞送行動。控方指申請人知悉郵包內藏有可卡因，故找鄧代為接收。控方指申請人是負責追蹤郵包、聯絡速遞員及安排鄧去接收郵包。" } }, { "doc_id": 45, "seg_id": 16, "translation": { "en": "In addition to the undisputed facts of the background described above, the Prosecution’s evidence against the Applicant mainly came from Tang. Aged about 18, Tang had just dropped out of school at the time of the case. After Tang had admitted “trafficking” in relation to his receiving a postal parcel containing cocaine on 8 October 2014, he testified against the Applicant as an accomplice.", "zh-HK": "除了上述無爭議的背景事實外，控方針對申請人的證據主要源自鄧。鄧約18歲，案發時剛輟學。鄧承認“販運”他在2014年10月8日接收一包載有可卡因的郵包後，以污點證人身份作供指證申請人。" } }, { "doc_id": 45, "seg_id": 17, "translation": { "en": "Tang stated in his evidence that three or four months before the case he came to know and socialise with the Applicant. During their socialisation, the Applicant would pay the expenses on most occasions. Tang considered the Applicant a trustworthy person who kept his word.", "zh-HK": "鄧作供時指在案發前三、四個月認識申請人，並和他交往。交往期間，申請人大多數會支付有關費用。鄧認為申請人守信用是值得信賴的人。" } }, { "doc_id": 45, "seg_id": 18, "translation": { "en": "According to Tang, in early September 2014, the Applicant asked him to help receive (a) postal parcel; the postal parcel was “coke”. Tang stated that he knew “coke” was a dangerous drug but had no idea what kind of dangerous drug it was. Tang stressed that the Applicant had indicated that “the (one) up above would throw down 100,000 dollars” in which each person could get half. After Tang had agreed, the Applicant instructed him to wait for phone calls, and Tang was aware that he was going to receive more than one parcel. According to Tang, at the time of the case he had just dropped out of school. With no income, he had to depend on his family to give him pocket money and so $50,000 was a huge amount of money. Moreover, he did not understand the serious consequences of trafficking in dangerous drugs, so he accepted the Applicant’s proposal.", "zh-HK": "鄧聲稱在2014年9月初，申請人要求他幫手接收郵包，而郵包是“可樂”。鄧表示知悉“可樂”是毒品，但不清楚是那一種毒品。鄧強調申請人曾表示“上面會抌10萬元落嚟”，他們可以一人一半。鄧同意後，申請人指示他等候電話，而鄧亦明白他要接收的郵包不止一個。鄧指案發時，他剛輟學，沒有收入，靠家人給予零用錢，故5萬元是很大的金額，而他亦不知道販毒的後果的嚴重性，故接受申請人的建議。" } }, { "doc_id": 45, "seg_id": 19, "translation": { "en": "According to Tang, on the day in question, the Applicant instructed him to receive the postal parcel, but he was worried that he would be arrested. The Applicant suggested that Tang should pretend he knew nothing if he was arrested; by doing so there would be insufficient evidence and the prosecution could not stand. Tang also thought that he would be fine by feigning ignorance.", "zh-HK": "鄧指案發當天，申請人指示他去接收郵包，但他擔心被捕，申請人建議鄧若被拘捕，就扮甚麼都不知，這樣做就會證據不足，檢控是不會成功的。鄧亦以為扮不知就會無事。" } }, { "doc_id": 45, "seg_id": 20, "translation": { "en": "Tang recounted that shortly before 10 a.m. on the day in question, i.e. 8 October 2014, the Applicant called him, told him to receive a postal parcel, and arranged to meet him at Sham Shui Po MTR station at 10:30 a.m. After they met, according to Tang, they went together to No. 333 Tai Nam Street. During that time, the Applicant instructed Tang to go into the building by pretending to be an occupant and to wait for his telephone instructions. Then the Applicant left immediately. As a result, after Tang had waited on the top floor of the building for several hours, the Applicant called, telling him to get ready to go downstairs to receive (a) postal parcel and to wait for his further instructions after receiving it. As it turned out, Tang went downstairs and saw the courier. Tang pretended he was Mr. Lam, but after checking his identity card, the Customs officer who was disguised as the courier pointed out that he was not Mr. Lam. Then Tang said he was receiving (it) on someone’s behalf. So the Customs officer who was disguised as the courier jotted down Tang’s name and the number of his identity card and handed to Tang the postal parcel involved in the case. When Tang was about to go back into the building, he was arrested.", "zh-HK": "鄧重申案發當天即2014年10月8日早上10時前不久，申請人來電要他接收郵包，並約他在上午10時30分在深水埗地鐵站會合。鄧指兩人會面後，一起前往大南街333號，期間，申請人指示鄧扮住客進入大廈，並等候他的電話指示，而申請人則隨即離開。結果鄧在大廈內頂樓等了數小時後，申請人來電叫他作準備落樓及收郵包並於收取郵包後，繼續等候他的指示。結果鄧落樓後見到速遞員。鄧冒認自己是林先生，但假扮速遞員的海關關員看過鄧的身份證後，指出他並非林先生。其後鄧說自己是代收，結果假扮速遞員的海關關員抄下鄧的名字和身份證號碼後就將涉案郵包交給鄧，而鄧準備返回大廈時就被拘捕。" } }, { "doc_id": 45, "seg_id": 21, "translation": { "en": "According to Tang, while he was waiting on the top floor of the building, the Applicant called him and told him to open the main gate of the building to let the Applicant in. Also, many calls were made to instruct him to receive the postal parcel. Tang’s phone call records showed that from 9:56 a.m. to 12 noon on 8 October 2014, there were 10 phone conversations with the Applicant. Tang also said that during that period of time, the Applicant had entered the building via another entrance and had a conversation with him.", "zh-HK": "鄧指在大廈內頂樓等候期間，申請人曾致電給他，要他打開大廈閘門給申請人進入，亦曾多次以電話指示他收取郵包。鄧的電話通話記錄顯示在2014年10月8日早上9時56分至正午12時期間，有10次和申請人通話。鄧亦指期間申請人有經另一入口進入過大廈並和他對話。" } }, { "doc_id": 45, "seg_id": 22, "translation": { "en": "Tang admitted that after he was arrested, (he) did indicate to the Customs officer(s) that he had no idea what the postal parcel contained. He also said that it was parallel goods, which he received for other people for $100 or $200. Tang admitted when he was interviewed by the customs officer(s), he feigned ignorance in order to exonerate himself.", "zh-HK": "鄧承認被拘捕後，曾向海關關員表示不知道郵包所載的是甚麼東西，亦有說過是水貨，是他為了一、兩百元而幫人收取。鄧承認被海關關員接見時，他是為了脫罪故扮作甚麼都不知道。" } }, { "doc_id": 45, "seg_id": 23, "translation": { "en": "Tang explained that during the video-recorded interview he did not tell the Customs officer(s) that he and the Applicant met up at Sham Shui Po MTR station, because at that time he did not know the Applicant was present. He gave his identity card to the Customs officer who delivered the postal parcel and signed the receipt because he thought it was normal procedure to do so, and he thought the person who delivered the parcel was a real courier.", "zh-HK": "鄧解釋在錄影會面時沒有向海關關員表示曾在深水埗地鐵站和申請人會合，原因是他當時不知道申請人在場。他將身份證交給送交郵包的海關關員及在簽收單上簽名，因為他以為該做法是正常程序，而當時他亦認為送交郵包的人是真正的速遞員。" } }, { "doc_id": 45, "seg_id": 24, "translation": { "en": "The Applicant was questioned by Customs officers after his arrest. The Applicant admitted that he had in his possession a black Samsung mobile phone on which there were 15 photos related to the postal parcel involved in the case. The Applicant stated that it was a person called “Ko Lo” who told the Applicant to take those photos on a computer and to show (them) to him. And on each occasion “Ko Lo” would give him $50. Later “Ko Lo” gave him $500 and requested the Applicant to receive three postal parcels on his behalf. The Applicant did not admit that he knew the postal parcel contained a dangerous drug.", "zh-HK": "申請人被捕後曾接受海關關員的問話，申請人承認他管有的一部黑色三星手提電話，內有15張和涉案郵包有關的照片。申請人指是一名叫“高佬”的人要申請人在電腦拍攝該些照片給他看，而每次“高佬”會給他50元。後來“高佬”給他500元，並要求申請人代他接收3個郵包，申請人沒有承認他知悉郵包內載有毒品。" } }, { "doc_id": 45, "seg_id": 25, "translation": { "en": "Subsequently, the Applicant further attended a video-recorded interview with customs officers. The Applicant said he made a living by working as a casual decoration worker at a daily wage of $400 to $500. At times he also worked in restaurants. He said he owed his friends several thousand dollars because he did not have a job and money to buy meals.", "zh-HK": "其後，申請人再和海關關員進行錄影會面，申請人表示自己以裝修散工為生，日薪400至500元，有時亦會在餐廳工作。他指自己欠朋友數千元，原因是冇工開及冇錢吃飯。" } }, { "doc_id": 45, "seg_id": 26, "translation": { "en": "According to the Applicant, he was collecting goods for “Ko Lo” in the vicinity of Tai Nam Street and Kweilin Street at about 11 a.m. on 8 October 2014. He said he did not know “Ko Lo’s” phone number or his full name and (he) seldom contacted him. If necessary, “Ko Lo” would look for him in places like McDonald’s, Lung Wai (transliteration) Video Game Centre or cyber bars and so on.", "zh-HK": "申請人指在2014年10月8日上午11時許在大南街、桂林街附近幫“高佬”收貨。他表示不知道“高佬”的電話或他的全名，亦很少和他聯絡，而“高佬”有需要時則會去麥當勞、龍威機鋪或網吧等地方找他。" } }, { "doc_id": 45, "seg_id": 27, "translation": { "en": "As indicated by the Applicant, on about 25 September 2014, “Ko Lo” indicated that he did not know how to use a computer, and (he) gave him three numbers, asking him to check on the Internet how TNT, a courier company, had been shipping the goods. Following the instructions of “Ko Lo”, the Applicant took screen shots of the shipment records and handed them to “Ko Lo” for him to see. The Applicant said he did not know the English address(es) shown in the records.", "zh-HK": "申請人表示在2014年9月25日左右，“高佬”表示不懂用電腦，並給予申請人三個號碼，要他上網查看TNT速遞公司的送貨情況。申請人按“高佬”的指示，從螢光幕拍下送貨記錄並交給“高佬”查看。申請人表示不知道記錄所顯示的英文地址。" } }, { "doc_id": 45, "seg_id": 28, "translation": { "en": "The Applicant further said that three or four days before the day in question, “Ko Lo” wanted the Applicant to collect the goods. “Ko Lo” gave him two mobile phones, instructed him to collect the goods as soon as he received his call, and gave him $500 as travelling expenses. “Ko Lo” also instructed him to receive the goods with “Ho Tsai” (transliteration). As a result, he said to Tang he would have several hundred dollars as a reward after receiving the goods.", "zh-HK": "申請人續稱案發前三、四天，“高佬”要申請人去收貨。“高佬”將兩部手提電話交給他及指示他有電話到就要去收貨，並給他500元作車馬費。“高佬”同時指示他和“賀仔”一起去收貨。結果，他向鄧表示收貨後會有數百元作為報酬。" } }, { "doc_id": 45, "seg_id": 29, "translation": { "en": "The Applicant also stated that “Ko Lo” indicated when somebody called him and wanted him to receive the goods, he did not have to bother about the recipient’s name. “Ko Lo” did not explain to him what to do in case the recipient’s name was different. But he said the three parcels would arrive at the same time. The Applicant stated expressly that he did not know the recipient John Lam or the other two recipients of the goods.", "zh-HK": "申請人亦指“高佬”表示有人打電話來要他收貨時他不用理會收貨人的姓名。“高佬”沒有向他解釋收貨人的名字不同時如何處理，但表示三件郵包會一起抵達。申請人表明不認識收貨人John Lam或其他兩名收貨人。" } }, { "doc_id": 45, "seg_id": 30, "translation": { "en": "The Applicant claimed that at around 9 a.m. in the morning of 8 October 2014, a staff member of the courier company called and told him that the goods had arrived and wanted to arrange with him the time and place for receiving the goods. Consequently, the Applicant called Tang and told him to receive the goods and, upon receipt of the goods, to pass the parcel(s) to him, and then he would take it/them to “Ko Lo”. The Applicant said Tang knew he was in the vicinity of Kweilin Street and Tai Nam Street. And after Tang had received the parcel(s), he would take it/them to the McDonald’s in Camp Street and handed it/them to him. But as it turned out, he was arrested by the Customs officer(s).", "zh-HK": "申請人聲稱是在2014年10月8日早上9時許，速遞公司的人員打電話給他說貨到，並要和他安排收貨的時間和地點。結果申請人打電話給鄧著他收貨及收貨後將郵包交給他，再由他送給“高佬”。申請人指鄧是知悉他會在桂林街、大南街附近，而鄧收取郵包後，會將郵包帶往營盤街的麥當勞交給他，但結果他卻被海關關員拘捕。" } }, { "doc_id": 45, "seg_id": 31, "translation": { "en": "The Applicant gave explanations with respect to the call records on those phones in his possession and the $20,000-odd in his current account. The Applicant said at first he was suspicious of the postal parcels involved in the case, but “Ko Lo” said nobody would send dangerous drugs by post, and if the Applicant was not free, he could ask somebody else to receive it/them on (his) behalf. So he did not think there was anything wrong and acted according to “Ko Lo’s” instructions.", "zh-HK": "申請人有就他管有的不同電話的通話記錄和其帳戶內的2萬多元的往來作出解釋。申請人表示初期對涉案郵包有懷疑，但“高佬”說無人會寄毒品，而如申請人無空，可叫他人代收，故他覺得沒有問題，便按照“高佬”的指示行事。" } }, { "doc_id": 45, "seg_id": 32, "translation": { "en": "The Stance and Evidence of the Applicant", "zh-HK": "申請人的立場和證據" } }, { "doc_id": 45, "seg_id": 33, "translation": { "en": "The Applicant’s stance is that he did not tell Tang that the postal parcel contained a dangerous drug. It is Tang who falsely accused him by telling lies in order to have his sentence reduced. The Applicant agreed that he did instruct Tang to receive the postal parcel, but he knew nothing about the postal parcel containing a dangerous drug. When he gave evidence in his defence, he enumerated his work experience. He said he had worked in the assembly-disassembly business, as a courier contractor, and in a skewer shop, but at the time the case occurred, he was unemployed, only doing casual work. The Applicant said he came to know “Ko Lo” when he was doing an assembly-disassembly job at the Convention and Exhibition Centre, and got to know him well when hanging out with him in video game centres. He also said he came to know Tang in June or July 2014 and had had meals and played video games with him since.", "zh-HK": "申請人的立場是他沒有向鄧說過郵包載有毒品，是鄧說謊誣告他以取得減刑。申請人同意有指示鄧去接收郵包，但表示對郵包藏毒一事不知情。作供自辯時，申請人列出他的工作經驗。他指自己從事過裝拆、速遞外判及串燒店，但案發時失業，只做散工。申請人表示在會展做裝拆時，認識“高佬”，並在機鋪和他混熟。他亦表示在2014年6、7月認識鄧後有和他一起食飯和打機。" } }, { "doc_id": 45, "seg_id": 34, "translation": { "en": "The Applicant said that on 25 September 2014, “Ko Lo” asked him if he knew how to access the Internet, and asked him to track on the Internet the whereabouts of some goods for him. So “Ko Lo” gave him the waybill for the three parcels of goods, telling him to take screen shots for him to see. He said that at the time “Ko Lo” did not ask him to receive the postal parcels on (his) behalf. But between 3 and 6 October 2014, “Ko Lo” said at the McDonald’s that as he had to work and was not free, he asked the Applicant to receive the postal parcels on (his) behalf. When the Applicant asked “Ko Lo” what the parcels were, “Ko Lo” said they were not guns, stoves or dangerous drugs, and they would arrive in Hong Kong within one or two days. At that time, in addition to a piece of paper containing the recipient’s/recipients’ address(es) and name(s), “Ko Lo” also gave him two mobile phones and $500 as travelling expenses. But the Applicant indicated to “Ko Lo” at once that he had to go back to Mainland China and would get somebody to receive it/them on (his) behalf.", "zh-HK": "申請人指2014年9月25日，“高佬”問他是否懂得上網，並要他在網上代查一些貨物的行踪。結果“高佬”將三包貨物的貨單交給他，要他在網上拍照後將相片給他看。他指當時“高佬”並沒有要他代收郵包。但在2014年10月3至6日期間，“高佬”在麥當勞表示自己要返工及沒有空，故要求申請人代收郵包。當申請人問“高佬”郵包是甚麼東西時，“高佬”說不是槍、不是爐，亦非毒品，而郵包會在一、兩天內到香港。當時“高佬”除了將一張有收貨人地址和姓名的紙交給他外，亦將兩部手提電話和500元交通費交給他。但申請人即時向“高佬”表示自己要返回國內故會找人代收。" } }, { "doc_id": 45, "seg_id": 35, "translation": { "en": "The Applicant stated he went back to the Mainland on 7 October 2014 and the following day, i.e. at around 9 a.m. on 8 October 2014 he returned to Hong Kong. The Applicant insisted that after he passed through immigration control, he received a call from the courier company saying that the goods would be delivered to No. 333 Tai Nam Street. Therefore, he called Tang, asking if he could receive (it/ them) on (his) behalf. Tang said he was in Sham Shui Po and could get there in 15 minutes. Consequently, the Applicant informed Tang the address to receive the goods. The Applicant insisted that he did not go to Sham Shui Po MTR station to meet up with Tang. Instead he went home to change his clothes.", "zh-HK": "申請人指在2014年10月7日，他返回國內，並在翌日，即2014年10月8日早上9時許返回香港。申請人力稱過關後收到速遞公司的電話及表示會送貨到大南街333號，他因此致電鄧，問他可否代收。鄧表示他身處深水埗並能在15分鐘到達。結果申請人知會鄧收貨地址。申請人力稱自己並沒有前往深水埗地鐵站和鄧會合，而是回家換衣服。" } }, { "doc_id": 45, "seg_id": 36, "translation": { "en": "The Applicant went on to say that at around 11 a.m. the same day he received a call from the courier company saying that (the courier) was about to arrive at the address for delivery. Then he kept in contact with the staff member of the courier company and Tang. Eventually he learnt that Tang had made contact with the courier. The Applicant insisted that during that time he did not instruct Tang to enter the building or ask Tang to open the other gate of the building to let him in.", "zh-HK": "申請人續稱同日約上午11時許，收到速遞公司的電話表示差不多到達送貨地址，其後他亦有繼續和速遞公司職員及鄧聯絡，最終知悉鄧和速遞員成功接頭。申請人力稱期間他並沒有指示鄧進入大廈，亦沒有要求鄧開啟大廈另一閘門讓他進入。" } }, { "doc_id": 45, "seg_id": 37, "translation": { "en": "The Applicant stated that while he was walking towards No. 333 Tai Nam Street, he was arrested by the Customs officer(s), who found only 3 mobile phones during the search. It was he who took the initiative to reveal the other two mobile phones to the Customs officer(s).", "zh-HK": "申請人指當他步向大南街333號時，被海關關員拘捕，而海關關員只搜出3部手提電話，另外兩部手提電話是他主動向海關關員透露的。" } }, { "doc_id": 45, "seg_id": 38, "translation": { "en": "The Applicant denied that he conspired with other people to “traffic in dangerous drugs”. He did not know the postal parcel involved in the case contained dangerous drugs. He denied that he talked with Tang in early September about receiving the postal parcel(s). The Applicant claimed that he was set up by “Ko Lo”.", "zh-HK": "申請人否認有和他人串謀“販毒”，而他是不知道涉案郵包內藏有毒品的。他否認在2014年9月初有和鄧談及收取郵包的事宜。申請人指被“高佬”陷害。" } }, { "doc_id": 45, "seg_id": 39, "translation": { "en": "The Applicant agreed that he should have had sufficient time to receive the postal parcel himself, but the courier said there was not enough time. So he instructed Tang to receive it and he went home to change his clothes instead. The Applicant explained the reason why he went to Tai Nam Street was that he had promised to take the postal parcel to McDonald’s and hand (it) to “Ko Lo”. He insisted that he did not know the postal parcel contained something illegal.", "zh-HK": "申請人同意他應有足夠時間自己去收取郵包，但速遞員則說時間不足，故他指示鄧去收取郵包，而自己則返回家換衣服。申請人指自己返回大南街的原因是他應承會將郵包帶往麥當勞交給“高佬”。他力稱不知道郵包內有違法物品。" } }, { "doc_id": 45, "seg_id": 40, "translation": { "en": "The Trial Judge’s Direction to Jury", "zh-HK": "原審法官對陪審團的指引" } }, { "doc_id": 45, "seg_id": 41, "translation": { "en": "The trial judge stated expressly to the jury that the evidence against the Applicant came mainly from Tang, and that Tang’s evidence was not entirely safe, so they had to consider Tang’s evidence carefully. The trial judge also listed the defects in Tang’s evidence.", "zh-HK": "原審法官向陪審團表明針對申請人的證據主要源自鄧，而鄧的證供有其不穩妥之處，故他們必須小心考慮鄧的證供。原審法官有列出鄧的證供的缺點。" } }, { "doc_id": 45, "seg_id": 42, "translation": { "en": "The trial judge did analyze with care the prosecution’s evidence relating to time in order to test the Applicant’s version that he did not have sufficient time to receive the postal parcel and so (he) had to instruct Tang to receive it.", "zh-HK": "原審法官有小心分析控方就時間上的證供以測試申請人指自己沒有足夠時間親自去接收郵包，故要指使鄧去接收郵包的說法。" } }, { "doc_id": 45, "seg_id": 43, "translation": { "en": "The trial judge reminded the jury that if they thought the Applicant’s evidence was true or possibly true, they were obliged to find him not guilty. The trial judge emphasized that even if the jury rejected the Applicant’s entire evidence, they still had to be sure that the Applicant knew the postal parcel contained dangerous drugs when he instructed Tang to receive (it). But the trial judge emphasized that the prosecution only needed to prove that the Applicant knew what the postal parcel contained was a dangerous drug, but it did not need to prove that he knew what kind of dangerous drug it was.", "zh-HK": "原審法官提醒陪審團如他們認為申請人的證供是真的，或可能是真的，他們都要判申請人無罪。原審法官強調即使陪審團否定申請人的全部證供，他們仍需肯定申請人指使鄧去接收郵包時，他知悉郵包載有毒品。但原審法官強調控方只需證實申請人知悉郵包所載的是毒品，而無需證明他知悉郵包所載的是那一類毒品。" } }, { "doc_id": 45, "seg_id": 44, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 45, "seg_id": 45, "translation": { "en": "Mr Osmond Lam, counsel for the Applicant, advanced several grounds of appeal. Mr Lam submitted that since the Applicant was charged with conspiring with other people to “traffic in a dangerous drug”, (ie) cocaine, the prosecution must prove that the Applicant knew what the postal parcel contained was cocaine and not other dangerous drugs. However, in his direction to the jury, the trial judge wrongly directed the jury by saying that they only needed to consider whether the Applicant knew the postal parcel contained a dangerous drug and that the prosecution did not need to prove that the Applicant knew what the postal parcel contained was cocaine.", "zh-HK": "代表申請人的大律師林國輝提出數點上訴理由。林大律師認為控罪是指申請人和他人串謀“販毒”可卡因這種毒品，因此，控方必須證明申請人知悉郵包所載的是可卡因，而非其他毒品。但原審法官卻錯誤地在引導陪審團時，要他們只需考慮申請人是否知悉郵包載有毒品，而控方無需證明申請人知悉郵包所載的是可卡因。" } }, { "doc_id": 45, "seg_id": 46, "translation": { "en": "Mr Lam submitted that the prosecution’s evidence might show that the Applicant conspired with other people to “traffic in” other dangerous drugs or other contraband, but the trial judge erred in omitting to point out that possibility to the jury.", "zh-HK": "林大律師認為控方的證據可能顯示申請人是和他人 串謀“販運”其他毒品，或其他違禁品，但原審法官卻錯誤地沒有向陪審團指出該可能性。" } }, { "doc_id": 45, "seg_id": 47, "translation": { "en": "Mr Lam pointed out that the trial judge erred in not expressing clearly to the jury that Tang’s guilty plea could not be regarded as evidence to convict the Applicant. Mr. Lam also emphasized the inherent improbabilities of Tang’s evidence, but the trial judge did not point out those inherent improbabilities to the jury. Accordingly, the guilty verdict against the Applicant was unsafe.", "zh-HK": "林大律師指原審法官錯誤地沒有向陪審團表明鄧的認罪答辯不能作為申請人的定罪證據。林大律師亦強調鄧的證據有其固有不可能性，但原審法官並沒有向陪審團指出該些固有不可能性，因此，針對申請人的定罪裁決是不穩妥的。" } }, { "doc_id": 45, "seg_id": 48, "translation": { "en": "Mr Lam submitted that Tang’s evidence had its own inherent improbabilities for the following reasons:", "zh-HK": "林大律師指鄧的證供有其固有不可能性，原因包括：" } }, { "doc_id": 45, "seg_id": 49, "translation": { "en": "(1)\tThe Applicant did not have to tell Tang what the postal parcel contained;", "zh-HK": "申請人無必要告知鄧郵包所載的是甚麼東西；" } }, { "doc_id": 45, "seg_id": 50, "translation": { "en": "(2)\tTelling Tang that the postal parcel contained a dangerous drug would increase the likelihood of the Applicant being arrested, thus putting himself in jeopardy;", "zh-HK": "申請人告知鄧郵包所載的是毒品會增加他被捕的機會，令自己處於險地；" } }, { "doc_id": 45, "seg_id": 51, "translation": { "en": "(3)\tAs the Applicant and Tang were not close and long-standing friends, it was impossible for the Applicant to believe that in case things went wrong, Tang would not testify against him.", "zh-HK": "申請人和鄧並非深交摯友，申請人不可能相信一旦東窗事發，鄧不會作供指證他。" } }, { "doc_id": 45, "seg_id": 52, "translation": { "en": "In the light of the above factors, Mr Lam submitted that the conviction of the Applicant was unsafe.", "zh-HK": "基於上述因素，林大律師認為針對申請人的定罪是不穩妥的。" } }, { "doc_id": 45, "seg_id": 53, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 45, "seg_id": 54, "translation": { "en": "Mr Lam argued that the prosecution must prove that the Applicant knew the postal parcel contained cocaine; it is not sufficient to merely prove that he knew the postal contained a dangerous drug. He cited R v Siracusa (1990) 90 Cr App R 340 to support his position.", "zh-HK": "林大律師指控方必需證明申請人知悉郵包內藏可卡因，而只證明他知悉郵包內藏毒品是不足夠的。他援引R v Siracusa (1990) 90 Cr App R 340案支持他的立場。" } }, { "doc_id": 45, "seg_id": 55, "translation": { "en": "In Siracusa, the prosecution accused the defendant of knowingly particpating in a fraudulent evasion or attempt at evasion of a prohibition or restriction for the time being in force with respect to goods under or by virtue of section 3(1) of the Misuse of Drugs Act 1971 and section 170(2)(b) of the Customs and Excise Management Act 1979.", "zh-HK": "在Siracusa案，控方是根據《Misuse of Drugs Act 1971》第3(1)條及《Customs and Excise Management Act 1979》第170(2)(b)條指控被告人蓄意(knowingly)參與以欺詐方式來規避或企圖規避某些法例被禁止或受限制的物品。" } }, { "doc_id": 45, "seg_id": 56, "translation": { "en": "Under the Customs and Excise Management Act 1979, cannabis was specified as a “Class B drug” whereas heroin was classified as a “Class A drug”, and the maximum penalties for evasion with respect to cannabis and heroin were different.", "zh-HK": "《Customs and Excise Management Act 1979》將大麻定為“B類毒品”，而海洛英則被定為“A類毒品”，亦將規避大麻及海洛英的刑罰訂定不同的最高刑罰。" } }, { "doc_id": 45, "seg_id": 57, "translation": { "en": "In Siracusa, the first charge was concerned with the conspiracy to evade the (prohibition/restriction) with respect to heroin and the second charge with the conspiracy to evade the (prohibition/ restriction) with respect to cannabis. But the trial judge did not state clearly in his direction to the jury that when they considered the first charge, they had to be sure that the offence which the defendants participated in involved heroin.", "zh-HK": "Siracusa案的第一項控罪涉及串謀規避海洛英，而第二項控罪則涉及串謀規避大麻。但主審法官在指引陪審團時沒有向他們指明他們在考慮第一項控罪時要確定被告人參與的犯罪行為涉及海洛英。" } }, { "doc_id": 45, "seg_id": 58, "translation": { "en": "One of the grounds of appeal was that the trial judge did not express clearly in his direction to the jury that the prosecution was obliged to prove that the agreement to the conspiracy was the importation of heroin.", "zh-HK": "涉案的上訴理由之一是主審法官沒有向陪審團表明控方要證明有關串謀協議是協議入口海洛英。" } }, { "doc_id": 45, "seg_id": 59, "translation": { "en": "What Mr Lam relied upon is the following remark of O’Connor LJ at page 350 of the judgment in Siracusa:", "zh-HK": "林大律師依賴的是O‘Connor LJ法官在Siracusa案的判案書第350頁的以下評論：" } }, { "doc_id": 45, "seg_id": 60, "translation": { "en": "“The mens rea sufficient to support the commission of a substantive offence will not necessarily be sufficient to support a charge of conspiracy to commit that offence. An intent to cause grievous bodily harm is sufficient to support the charge of murder, but is not sufficient to support a charge of conspiracy to murder or of attempt to murder.", "zh-HK": "“構成干犯某實質控罪的犯意（mens rea）不一定足以支持串謀干犯該控罪的犯意。有意圖令人身體受嚴重傷害是足夠支持謀殺控罪，但不足夠支持串謀謀殺或企圖謀殺控罪。" } }, { "doc_id": 45, "seg_id": 61, "translation": { "en": "We have come to the conclusion that if the prosecution charge a conspiracy to contravene section 170(2) of the Customs and Excise Management Act by the importation of heroin, then the prosecution must prove that the agreed course of conduct was the importation of heroin. This is because the essence of the crime of conspiracy is the agreement and in simple terms, you do not prove an agreement to import heroin by proving an agreement to import cannabis.”", "zh-HK": "我們的結論是如控方指違反Customs and Excise Management Act第170(2)條的行為是入口海洛英，控方必須證明協議的行為是入口海洛英，原因是罪行的要素是協議，而簡而言之，只證明協議入口大麻不能證明協議入口海洛英。”（非官方翻譯）" } }, { "doc_id": 45, "seg_id": 62, "translation": { "en": "First of all, this Court points out that the two charges in Siracusa were that (the defendants) knowingly imported two different substances listed in the Customs and Excise Management Act 1979, namely, heroin (a Class A drug) and cannabis (a Class B drug).", "zh-HK": "本庭先指出Siracusa案涉及的兩項控罪分別是蓄意入口《Customs and Excise Management Act 1979》列明的兩種不同物品，一是A類的海洛英，一是B類的大麻。" } }, { "doc_id": 45, "seg_id": 63, "translation": { "en": "The Customs and Excise Management Act 1979 classified cannabis and heroin and also dealt with the penalties for the offences of importation of cannabis and importation of heroin separately.", "zh-HK": "《Customs and Excise Management Act 1979》將大麻和海洛英分類，亦將入口大麻和入口海洛英罪行的刑罰分開處理。" } }, { "doc_id": 45, "seg_id": 64, "translation": { "en": "Under that Act, the importation of cannabis and the importation of heroin were two different offences. This Court cannot disregard that the offences referred to in that Act must be committed knowingly. The penalty for conspiracy to import cannabis is lighter than that for conspiracy to import heroin. Accordingly, if the defendant was charged with conspiracy to import heroin and he thought what was to be imported is cannabis, the charge against him would not stand. However, the situation would be totally different if he was charged with conspiracy to import cannabis, but he thought what was to be imported was heroin. It was in the above context that O’Connor LJ said in obiter dicta that the proof of an agreement to import cannabis was not sufficient proof of an agreement to import heroin.", "zh-HK": "根據該條例入口大麻和入口海洛英根本是兩項不同的控罪。本庭不能忽視該條例所指的罪行必須是蓄意（knowingly）干犯。串謀入口大麻罪行的判罰較串謀入口海洛英罪行為輕。因此，如被告人被控的是串謀入口海洛英，而他以為入口的是大麻，針對他的控罪便不成立；但如他被控串謀入口大麻，但他以為入口的是海洛英，情況便完全不同。O’Connor LJ法官是在上述情況下提出一些附帶意見，指證明協議入口大麻不足以證明協議入口海洛英。" } }, { "doc_id": 45, "seg_id": 65, "translation": { "en": "The decision in Siracusa was canvassed by the Court of Criminal Appeals of the UK in R v Patel and others（unreported, 7th August 1991, [1991] Lexis Citation 1588）. Woolf LJ pointed out at page 10 of the judgment：", "zh-HK": "Siracusa案的判決在R v Patel and others案（unreported, 7th August 1991, [1991] Lexis Citation 1588）被英國刑事上訴法庭審議。Woolf LJ在判案書第10頁指出：" } }, { "doc_id": 45, "seg_id": 66, "translation": { "en": "“… by referring to a single drug in the Particulars of Offence the prosecution are identifying which Class of drug is involved. If heroin is specified, a Class A or hard drug; if Cannabis is specified, a Class B or soft drug. The naming of the drug is a material allegation because it makes clear the gravity of the offence which is the objective of the conspiracy.”", "zh-HK": "“…控方在控罪詳情提出單一種毒品，是確認涉案毒品是那一類毒品。如確認的毒品是海洛英，那是一種A類或硬性毒品；如確認的毒品是大麻，那是一種B類或軟性毒品。將毒品定性是一項有關的陳述，原因是該做法將清楚描繪控罪的嚴重性，而該嚴重性亦是串謀的目的。”（非官方翻譯）" } }, { "doc_id": 45, "seg_id": 67, "translation": { "en": "Woolf LJ also gave a brief statement of the legal principle involved as follows:", "zh-HK": "Woolf LJ亦將有關的法律原則簡述如下：" } }, { "doc_id": 45, "seg_id": 68, "translation": { "en": "… 如陪審團認為被告人同意加入串謀時，他錯誤地相信串謀所涉及的毒品和罪行詳情所指的不同，而該些不同的毒品（即被告人相信他參與串謀所涉及的毒品）屬於某類最高判刑較罪行詳情所指毒品的最高判刑為輕。因此，如被告人加入串謀時相信串謀是涉及大麻（B類），而他被控的串謀罪是涉及海洛英（A類），被告人會是無罪；但相反的情況，他會是有罪。原因是如他錯誤地相信他參與的串謀涉及較嚴重的罪，他的錯誤（誤認涉案毒品是海洛英，而實情只是大麻）並非控罪的必需特徵。\t“(i)\t… if the jury consider that, although he agreed to join the conspiracy, he may have mistakenly believed that the conspiracy related to a different drug from that named in the Particulars of Offence and that different drug is of a Class, the maximum punishment in relation to which (for the substantive offence) is less than that for drugs of the Class specified in the Particulars of Offence. Thus is (sic) a person enters into a conspiracy believing it concerns cannabis (Class B) he will not be guilty of an offence charging him with being a party to a conspiracy concerning heroin (Class A). In the reverse situation he would however be guilty, since if he mistakenly thought that he was joining a conspiracy to commit a graver offence his mistake would not be as to a material feature of the offence - in other words he believed the drug involved was heroin when in fact it was cannabis.", "zh-HK": "“(i)" } }, { "doc_id": 45, "seg_id": 69, "translation": { "en": "如被告人加入有關串謀時錯誤地相信串謀涉及的毒品，雖然和控罪詳情所指的不同，但是屬同一類別，則被告人會是有罪。\t(ii)\ta defendant will be guilty if the offence if he joined the conspiracy alleged in the mistake belief it involved a drug which, while different from, belongs to the same Class as the drug named in the Particular of Offence.", "zh-HK": "(ii)" } }, { "doc_id": 45, "seg_id": 70, "translation": { "en": "如被告人加入串謀時知悉串謀涉及違禁毒品，但不知悉是某一種毒品時，他就是串謀的一份子，不論串謀和那一種毒品有關，被告人亦會是有罪。”（非官方翻譯）\t(iii)\ta defendant will be guilty if he joins the conspiracy knowing that prohibited drugs are involved but without knowing what drugs are involved. In such a situation he would in fact have agreed to be a party to the conspiracy irrespective of what drugs are involved.”", "zh-HK": "(iii)" } }, { "doc_id": 45, "seg_id": 71, "translation": { "en": "The decision in Siracusa was based entirely on the wording and interpretation of the relevant Acts of the United Kingdom. The legal principle laid down in that case does not apply to the present case.", "zh-HK": "Siracusa案的裁決完全是建基在英國有關法例的用詞及詮譯。該案定下的法律原則不適用於本案。" } }, { "doc_id": 45, "seg_id": 72, "translation": { "en": "In the present case, the Applicant was charged with conspiracy to traffic in a dangerous drug. Although it was stated in the Particulars of Offence that the Applicant conspired (with others) to traffic in cocaine, the nature of the dangerous drug was not the material averment of the offence or the statement in question.", "zh-HK": "在本案，申請人被控的控罪是串謀販運毒品。雖然罪行詳情列明申請人串謀販運的毒品是可卡因，但毒品的性質並非是控罪的要素或有關的陳述。" } }, { "doc_id": 45, "seg_id": 73, "translation": { "en": "The Dangerous Drugs Ordinance (Cap 134) does not deal with trafficking in cocaine and trafficking in other drugs separately. Nor does the Dangerous Drugs Ordinance specify “knowingly” as a material averment of the offence as in the case of that Act. Where a defendant participated in a conspiracy to “traffic in a dangerous drug”, as long as the offence involves “dangerous drugs” referred to in the Dangerous Drugs Ordinance, he is guilty regardless of whether he knows the exact kind of “dangerous drug” involved. To convict a defendant of “trafficking in a dangerous drug”, the prosecution only needs to prove that the defendant knows the thing involved in the trafficking is a dangerous drug, without having to prove that he knows exactly what kind of dangerous drug it is (See R v Tam Chun Fai [1994] 2 HKC 397 and HKSAR v Chui Chi Wai [1999] 3 HKLRD 841).", "zh-HK": "香港法例第134章《危險藥物條例》沒有將販運可卡因或販運其他種類毒品的判刑分開處理。《危險藥物條例》更沒有如該條例一樣將蓄意（knowingly）列為控罪的要素。一名被告人參與串謀“販毒”，只要控罪涉及《危險藥物條例》所指的“毒品”，則不論被告人是否知悉有關“毒品”的確實種類，他仍是有罪。要裁定一名被告人“販毒”罪罪名成立，控方只需證明被告人知悉他販運的東西是危險藥物，而無需證明被告人知悉該些危險藥物是那一種的危險藥物（見R v Tam Chun Fai [1994] 2 HKC 397、HKSAR v Chui Chi Wai [1999] 3 HKLRD 841等案）。" } }, { "doc_id": 45, "seg_id": 74, "translation": { "en": "Section 159A(1)(a) of the Crimes Ordinance (Cap 200) stipulates：", "zh-HK": "香港法例第200章《刑事罪行條例》第159A(1)(a)條訂明：" } }, { "doc_id": 45, "seg_id": 75, "translation": { "en": "除本部條文另有規定外，如任何人與任何其他人達成作出某項行為的協議，而該項協議如按照他們的意圖得以落實，即出現以下的情況 ——\t“(1)\tSubject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—", "zh-HK": "“(1)" } }, { "doc_id": 45, "seg_id": 76, "translation": { "en": "該項行為必會構成或涉及協議的一方或多於一方犯一項或多於一項罪行。”\t(a)\twill necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement;”", "zh-HK": "(a)" } }, { "doc_id": 45, "seg_id": 77, "translation": { "en": "In short, if the act which the conspirators agree to carry out materialises, that act will constitute a particular offence, and the offence of conspiracy will be established. Where the offence is “trafficking in a dangerous drug”, as mentioned above, as long as the offender knows the thing involved in the trafficking is a dangerous drug, that is sufficient to establish guilt. Whether or not he knows the exact kind of dangerous drug involved is not a material averment. Accordingly, under section 159A(1)(a) of the Crimes Ordinance, for the offence of conspiracy to “traffic in a dangerous drug”, whether or not the defendant knows the exact kind of dangerous drug involved is not a material averment, nor is the prosecution required to prove that the defendant knows the dangerous drug involved is the specific one stated in the indictment.", "zh-HK": "簡言之，若串謀者同意作出的行為落實的話，該行為必會構成某項罪行，串謀罪便會成立。若該項罪行是“販毒”，如上文所說，只要犯案者知道他所販運的東西是危險藥物，便足以罪成，他知不知道涉案的危險藥物是某一類危險藥物並非控罪元素（material averment）。因此，根據《刑事罪行條例》第159A(1)(a)條的規定，就串謀“販毒”罪，被告是否知悉涉案的是那一類危險藥物不是控罪元素，控方亦無須證明被告知道涉案的正是公告書上所列明的特定一類危險藥物。" } }, { "doc_id": 45, "seg_id": 78, "translation": { "en": "Also, this Court does not see any logical basis for adopting a different approach in cases of conspiracy to “traffic in dangerous drugs” from that in cases of “trafficking in dangerous drugs”. The contention that in cases of conspiracy to “traffic in dangerous drugs” it is not sufficient for the prosecution only to prove that the defendant knows the thing involved in the trafficking is a dangerous drug, but the prosecution must also prove that the defendant knows the exact kind of dangerous drug involved is neither practicable nor convincing.", "zh-HK": "再者，本庭亦看不到有任何邏輯基礎在處理串謀“販毒”案時，要採納和“販毒”罪不同的方法。強稱在串謀“販毒”案件，控方只能證明被告人知悉其販運的東西是“毒品”，並不足夠，而必須證明被告人知悉其販運的是某一類特定毒品是不設實際，亦是不具說服力的。" } }, { "doc_id": 45, "seg_id": 79, "translation": { "en": "For the above reasons, this Court is of the view that the question at issue in a case of conspiracy to “traffic in a dangerous drug” is whether the defendant enters into an agreement with others to unlawfully “traffic in a dangerous drug”. It is not a defence to contend that the defendant does not know the exact kind of dangerous drug involved. As long as the defendant knows the thing involved is a dangerous drug specified in the Dangerous Drugs Ordinance, he has committed the offence of conspiracy to “traffic in a dangerous drug”. Accordingly, this Court is of the view that the direction the trial judge gave to the jury was correct.", "zh-HK": "基於上述原因，本庭認為在串謀“販毒”案件，議題是被告人是否有和他人協議非法“販運”毒品，被告人不知悉毒品的確實種類並非答辯理由，只要他知道涉案物品是《危險藥物條例》所指的毒品，他就干犯了串謀“販毒”罪行。本庭認為原審法官給予陪審團的指引是正確的。" } }, { "doc_id": 45, "seg_id": 80, "translation": { "en": "Furthermore, the Applicant’s defence was that he did not know in the first place what the postal parcel contained was a dangerous drug, but this was obviously rejected by the jury. According to Tang’s evidence, the Applicant made it clear to him that the dangerous drug involved was “coke” and that receiving the postal parcel involved would be rewarded with $100,000. There was nothing in the present case to show that the Applicant conspired with other people to “traffic in” other kinds of dangerous drug. The Applicant’s version was that he did not know in the first place that the postal parcel contained any dangerous drug. And “Ko Lo” said to him that the postal parcel was not a gun, a stove or a dangerous drug. The main point that Mr. Lam advanced does not apply to the present case at all. Even if the Applicant conspired with other people to “traffic in” other kinds of dangerous drug, this was not a valid defence either.", "zh-HK": "再者，申請人的答辯理由是他根本不知悉涉案郵包所載的是毒品，而陪審團亦明顯否定了他的說法。根據鄧的證供，申請人明確向他表示涉案的毒品是“可樂”，而收取涉案郵包更會有10萬元報酬。案件中沒有證據顯示申請人是和他人串謀“販運”其他種類毒品。申請人的說法是他根本不知道郵包藏有任何毒品，而“高佬”向他說郵包不是槍，不是爐，亦非毒品。林大律師的主要論點在本案根本不適用。即使申請人是和他人串謀“販運”其他種類毒品，這亦非有效的答辯理由。" } }, { "doc_id": 45, "seg_id": 81, "translation": { "en": "There was no evidence in the present case to show that the Applicant conspired with other people to “traffic in” other contraband, which were not dangerous drugs. There was no basis for the trial judge to point out to the jury that the Applicant might conspire with other people to import other contraband. To direct the jury to consider the possibility of the Applicant conspiring with other people to “traffic in” other contraband would only confuse and not assist the jury in deciding the matters in dispute in the case.", "zh-HK": "案件亦沒有證據顯示申請人是和他人串謀“販運”其他違禁品，而非毒品。原審法官沒有基礎向陪審團指出申請人可能是和他人串謀入口其他違禁品。引導陪審團考慮申請人可能是串謀他人“販運”其他違禁品只會混淆陪審團，而非協助他們就案件的爭議作出裁決。" } }, { "doc_id": 45, "seg_id": 82, "translation": { "en": "Mr Lam contended that Tang’s evidence had its own inherent improbabilities. His position was that Tang’s evidence was not credible, but the trial judge did not draw the attention of the jury to the unsafe aspects of Tang’s evidence.", "zh-HK": "林大律師力稱鄧的證供有其固有不可能性，他的立場是鄧的證供不可信，但原審法官卻沒有提醒陪審團鄧的證供的不穩妥之處。" } }, { "doc_id": 45, "seg_id": 83, "translation": { "en": "According to Tang’s evidence, he trusted the Applicant. And the Applicant suggested to Tang that he only needed to feign ignorance if he was arrested.", "zh-HK": "根據鄧的證言，他信賴申請人，而申請人有向他表示如他被拘捕，他只需要扮甚麼都不知道。" } }, { "doc_id": 45, "seg_id": 84, "translation": { "en": "The Applicant asked Tang to receive the postal parcel on his behalf and indicated that he would give Tang $50,000 as a reward. The Applicant must have thought that giving Tang a big reward would make Tang act according to his instructions. Anyway, he had to tell Tang that the postal parcel contained “coke”, otherwise it would be impossible for him to give (him) a reward of $50,000 to induce Tang to act on his instructions. The Applicant must also have calculated the risk he would face in getting Tang to act in accordance with his instructions, such risk was also inevitable.", "zh-HK": "申請人要鄧代他收取郵包，並表示會給予鄧5萬元的酬勞。申請人必然認為給予鄧重酬，鄧會按照他的指示行事，而他亦有需要告知鄧郵包藏有“可樂”，否則他不可能以5萬元報酬誘使鄧按照他的指示行事。申請人亦必然是計算過他指示鄧行事會面對的風險，而該些風險亦是無可避免的。" } }, { "doc_id": 45, "seg_id": 85, "translation": { "en": "This Court does not agree with Mr Lam that Tang’s evidence has its own inherent improbabilities which showed that his evidence could not be true.", "zh-HK": "本庭不同意林大律師所指鄧的證供有其固有不可能性，顯示他的證供不可能屬實。" } }, { "doc_id": 45, "seg_id": 86, "translation": { "en": "Whether Tang lied in order to falsely accuse the Applicant was a factual issue which should be left to the jury to decide. The jury was aware of the position of the Defence. If Tang’s evidence against the Applicant had the inherent improbabilities as claimed by the Defence, the jury must have rejected his evidence. That the jury found the Applicant guilty shows that they rejected the Defence’s version and that they considered Tang an honest and reliable witness. There is no basis for this Court to negate the jury’s decision on a matter of fact.", "zh-HK": "鄧是否說謊誣告申請人是事實問題，應由陪審團作出裁決。陪審團知悉辯方的立場，如鄧針對申請人的證供有辯方聲稱的固有不可能性，陪審團必然會否定他的證供。陪審團裁定申請人罪名成立顯示他們是否定了辯方的說法，並認為鄧是一名誠實可靠的證人。本庭沒有基礎否定陪審團就事實作出的裁決。" } }, { "doc_id": 45, "seg_id": 87, "translation": { "en": "Tang had already admitted an offence of trafficking in a dangerous drug in one of the postal parcels before he testified against the Applicant. The trial judge stated clearly to the jury in his direction that Tang had already admitted the said offence and was awaiting sentence, and that one of the purposes of his testifying against the Applicant was to obtain a further reduction of his sentence. The trial judge also pointed out to the jury that the Secretary for Justice had granted Tang immunity that if Tang told the truth in giving evidence, the Prosecution would not charge him with the other offences relating to the present case.", "zh-HK": "鄧作供指證申請人前已承認了一項販運和案件的其中一個郵包有關的毒品罪。原審法官引導陪審團時明確向他們表明鄧已承認了該項控罪及正在等候判刑，而他作供指證申請人的目的之一是為了取得再進一步的減刑。原審法官亦向陪審團指出律政司有給予鄧免予起訴書，內容是如鄧作供的內容真確，則控方不會起訴他與本案有關的其他罪行。" } }, { "doc_id": 45, "seg_id": 88, "translation": { "en": "In the circumstances mentioned above, whether the trial judge was obliged to inform the jury that Tang had already admitted an offence of “trafficking in a dangerous drug” would presumably not affect their verdict as to whether or not the Applicant was guilty. And whether the trial judge was obliged to remind the jury that the Prosecution was required to prove its accusation against the Applicant so that they were sure that the Applicant had committed the offence with which he was charged would not have been affected even if Tang had not admitted the offence of “trafficking in a dangerous drug”.", "zh-HK": "在上述情況下，原審法官是否必須告知陪審團鄧已承認一項“販毒”控罪一事，不應影響他們對申請人是否有罪所作出的裁決。原審法官是否必須提醒陪審團控方必須證明對申請人作出的指控、令他們肯定申請人干犯了他被控的罪行，情況就如鄧沒有承認過“販毒”控罪一樣。" } }, { "doc_id": 45, "seg_id": 89, "translation": { "en": "Mr Lam cited HKSAR v Lo Wai Ming [2007] 3 HKLRD 191 and argued that the trial judge was obliged to remind the jury that Tang had already admitted an offence and that this had nothing to do with whether or not the Applicant was guilty. First of all, this Court should point out that the defendant in Lo Wai Ming’s case was alleged to have received a bag of dangerous drug involved in the case from a taxi passenger [L]. Having been arrested and cautioned, the defendant indicated that the bag of dangerous drug was not his, but was handed to him by his boss [L]; but he knew the bag of dangerous drug was “ice”. In his evidence for the defence, the defendant denied that he had made the above confession and emphasized that he did not admit having knowledge or possession of the dangerous drug involved in the case during the video-recorded interview, nor did anyone ask him about the confession which the prosecution alleged he had made. But the video-recorded interview referred to above showed that the defendant admitted that at the place where he was arrested, the police officer(s) seized a plastic bag on L’s person; he also admitted that he had $32,000 in cash on him. The defendant said in his evidence that it was he who arranged to meet L at the scene of the case, which was different from what he said during the video-recorded interview, namely, he just happened to see L there coincidentally. In the cross-examination of the defendant, the prosecution pointed out that the defendant did not call L to give evidence, because he knew L had already admitted that the two of them “trafficked in the dangerous drug” together.", "zh-HK": "林大律師援引HKSAR v Lo Wai Ming [2007] 3 HKLRD 191案，並指原審法官必須提醒陪審團鄧已認罪一事和申請人是否有罪無關。本庭應先指出，Lo Wai Ming案的被告人被指從一名的士的乘客（L）接收涉案的一袋毒品。被告人被捕後及在警誡下表示該包毒品並非是他的，而是其老闆（L）交給他的，但他知悉該包毒品是“冰毒”。作供自辯時，被告人否認有作出過上述招認，並強調他和警員進行錄影會面時沒有承認知悉或管有過涉案毒品，亦沒有人問過他控方指他曾作出過的招認。但根據上述錄影會面的內容，被告人承認在他被捕之處，警員從L身上撿獲一膠袋，亦承認其身上有32,000元現金。被告人作供時表示是他安排和L在案發地點會面，和他在錄影會面時說他是巧合地遇到L不同。控方盤問被告人時指被告人沒有傳召L作供，原因是他知悉L已承認了有和他一起“販毒”。" } }, { "doc_id": 45, "seg_id": 90, "translation": { "en": "The Court of Appeal pointed out that in the above circumstances, the jury might have been influenced by the overwhelming allegation that L had admitted that he and the defendant “trafficked in the dangerous drug” together. However, the trial judge did not direct the jury to ignore L’s admission of the offence pointed out by the prosecution or to ignore the statement he made to the police. This constituted an irregularity in the legal proceedings, mainly because the prosecution informed the jury of an admission made by an accomplice without calling that accomplice to testify in court, thus depriving the defendant of the chance to cross-examine him in order to test the allegation that they committed the offence together.", "zh-HK": "上訴法庭指出在上述情況下，陪審團可能會受L承認有和被告人一起“販毒”這強而有力的指稱所影響，但主審法官卻沒有指示陪審團不要理會控方指出L已認罪一事或他向警方所作的供詞，構成法律程序失當。法律程序失當的主要原因明顯是控方將一名同犯已經認罪的事實告知陪審團，但卻不傳召該名同犯出庭作供，是剝奪被告人盤問該名同犯的機會以測試他們是否有同共犯案這指控。" } }, { "doc_id": 45, "seg_id": 91, "translation": { "en": "In the present case, Tang did testify against the Applicant in court. The Defence had ample opportunities to question Tang as to whether he had conspired with the Applicant to commit the offence, so as to assist the jury in making a finding on Tang’s credibility and reliability.", "zh-HK": "在本案，鄧有出庭作供指證申請人。辯方有充份機會就鄧是否有串謀申請人犯案向他查詢以協助陪審團就他的可信性及可靠性作出裁決。" } }, { "doc_id": 45, "seg_id": 92, "translation": { "en": "The Applicant admitted that he did instruct Tang to receive the postal parcel on the day in question, but he did not know that it contained a dangerous drug. He was set up by “Ko Lo”. His version was different from Tang’s. The main issue the jury had to decide was whether Tang’s evidence against the Applicant was true. In arriving at the said verdict, the jury must have considered the other factors, including the fact that the Applicant had many phones on him when he was arrested; the records of his telephone communications with the Customs officer before the present case occurred; the fact that the phone(s) had photos of tracking the delivery of the three postal parcels involved in the case; among the items seized from the Applicant was a piece/pieces of paper showing the air waybill number and the names of the recipients of the goods; given that the Applicant was in the vicinity when he was arrested, he had time to personally receive the postal parcel involved, and he could arrange with the Customs officer disguised as a courier the time and place of the delivery and so on.", "zh-HK": "申請人承認他在案發當天有指示鄧去收取郵包，但他對郵包載有毒品不知情。他是被“高佬”陷害的。他的說法和鄧的說法不同，而陪審團要裁決的主要議題是鄧針對申請人的證供是否真確。在作出上述裁決時，陪審團當然會考慮其他因素，包括申請人被捕時身上有多部電話；在案發前和海關關員通訊的電話記錄；及電話內有追蹤涉案三個郵包的運送行踪的照片；申請人被扣押的物品中有顯示涉案郵包的航空單編號及收貨人名字的紙條；申請人被捕時是在案發現場附近，而他是有時間可以親自收取涉案郵包，亦可以和假扮速遞員的海關關員安排接收郵包的時間和地點等等因素。" } }, { "doc_id": 45, "seg_id": 93, "translation": { "en": "The trial judge did inform the jury in his directions that Tang had admitted an offence of trafficking in a dangerous drug. But in the present case, it was wholly impossible for the jury to have drawn any inference or reached a verdict unfavourable to the Applicant on the basis that Tang had admitted an offence.", "zh-HK": "原審法官在引導陪審團時有告知他們，鄧已承認了販毒罪，但在本案，陪審團根本不可能因為鄧認罪這因素而對申請人作出任何不利的推論或裁決。" } }, { "doc_id": 45, "seg_id": 94, "translation": { "en": "The trial judge warned the jury repeatedly that they had to consider Tang’s evidence with caution because he was a person who would lie according to the situation and also was extremely selfish. The trial judge also emphasized to the jury that if the Applicant’s version was true or possibly true, they had to find the Applicant not guilty; and that even if they did not believe the Applicant, they still had to consider whether the evidence of the Prosecution was sufficient to cause them to be sure that the Applicant knew what the postal parcel contained was a dangerous drug.", "zh-HK": "原審法官有多番提醒陪審團要小心考慮鄧的證供，原因是他是一名會因應情況而說謊的人，亦是一名極為自私的人。原審法官亦有對陪審團強調如申請人的說法是真的或可能是真的，他們要判申請人無罪，而即使他們不相信申請人，他們仍需考慮控方的證據是否足以令他們肯定申請人是知悉郵包所載的是毒品。" } }, { "doc_id": 45, "seg_id": 95, "translation": { "en": "We consider that so far as the background of the present case is concerned, the trial judge needed not tell the jury that Tang had admitted an offence of “trafficking in a dangerous drug” and that this had nothing to do with whether or not the Applicant is guilty. (Even if) the trial judge did not give the above direction, it would not have constituted an irregularity in legal proceedings nor affected the safety of the conviction.", "zh-HK": "本庭認為以本案的背景而言，原審法官沒有需要告知陪審團鄧有承認“販毒”罪一事，和申請人是否有罪無關。原審法官沒有作出上述指示亦不構成法律程序不當及影響定罪的穩定性。" } }, { "doc_id": 45, "seg_id": 96, "translation": { "en": "We would like to reiterate the following comment the Court of Appeal made in HKSAR v Chan Kam Chiu (unreported CACC 227/2006) on the same issue:", "zh-HK": "本庭會覆述上訴法庭在HKSAR v Chan Kam Chiu (unreported CACC 227/2006)就同一議題作出以下的評論：" } }, { "doc_id": 45, "seg_id": 97, "translation": { "en": "污點證人（楊）原被控和第一及第二申請人被控的同一“販毒”罪行。他承認控罪，並同意替控方作供。陪審團知悉楊已認罪及他會在作供後才被判刑。陪審團亦已適當地被警示要小心處理其證供，原因是他有理由去虛構或誇大其證供。\t“23.\tThe accomplice witness, Yeung, was originally charged with the same trafficking offence as the first and second applicants. He pleaded guilty to that offence, agreeing to testify for the prosecution. The fact that he had pleaded guilty and that he would only be sentenced after he had testified was known to the jury. The jury were correctly warned to approach his testimony with caution on the basis that he therefore had reason to falsify or exaggerate his testimony.", "zh-HK": "“23．" } }, { "doc_id": 45, "seg_id": 98, "translation": { "en": "但有替第二申請人作出的陳述指主審法官應該警誡陪審團不要因為楊承認有和第一和第二申請人一起干犯“販毒”而認定他們亦是有罪。\t24.\tOn behalf of the second applicant, however, it was submitted that the judge should have warned the jury against the danger of concluding that the first and second applicants must themselves be guilty because Yeung had pleaded guilty to committing the offence of trafficking with them.", "zh-HK": "24." } }, { "doc_id": 45, "seg_id": 99, "translation": { "en": "本庭不同意有關陳述。除了某些最基本的原則，例如舉證責任，向陪審團作出的指引必須是為了協助陪審團要就案件的裁決而制訂。在本案，聲稱主審法官應作出的指引是多餘的，甚至會是具誤導性的。”（非官方翻譯）\t25.\tWe do not agree. Directions to a jury – other than the most fundamental, for example, the burden of proof – must be tailored to assist the jury to determine the case before them. In the present case, such a direction would have been superfluous, even confusing.”", "zh-HK": "25." } }, { "doc_id": 45, "seg_id": 100, "translation": { "en": "We are of the view that the observation of the Court of Appeal in Chan Kam Chiu is entirely applicable to the present case.", "zh-HK": "本庭認為上訴法庭在Chan Kam Chiu案所作的觀察完全適用於本案。" } }, { "doc_id": 45, "seg_id": 101, "translation": { "en": "Having carefully considered the grounds of appeal advanced by Mr. Lam, we are of the view that none of them has merit.", "zh-HK": "本庭已小心考慮林大律師提出的上訴理由。本庭認為該些上訴理由無一成立。" } }, { "doc_id": 45, "seg_id": 102, "translation": { "en": "The guilty verdict against the Applicant was safe. Accordingly, we dismiss the Applicant’s application for leave to appeal against conviction and uphold the original decision.", "zh-HK": "針對申請人的有罪裁決是穩妥的。因此，本庭駁回申請人針對定罪提出的上訴許可申請，並維持原判。" } }, { "doc_id": 45, "seg_id": 103, "translation": { "en": "由律政司高級助理刑事檢控專員黎嘉誼代表。\tOsmond Lam and Ernest Yuen, instructed by Or & Lau, Solicitors, for the Applicant", "zh-HK": "答辯人：" } }, { "doc_id": 45, "seg_id": 104, "translation": { "en": "由柯廣耀、劉慧兒律師事務所轉聘大律師林國輝及大律師袁焌碩代表。\tNed Lai, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent", "zh-HK": "申請人：" } }, { "doc_id": 46, "seg_id": 1, "translation": { "en": "Hon Leong JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官梁紹中宣讀上訴法庭判案書:" } }, { "doc_id": 46, "seg_id": 2, "translation": { "en": "On 25 February this year, the applicant for leave to appeal, Ng Wing Hang, was charged before the District Court with one count of robbery. Particulars of the offence stated that on 8 September 1999, in Wanchai Road and together with Ho Chi Wai (何志徫) (i.e. D1) and Li Wai Yip (李偉業) (i.e. D2), the applicant robbed one Chow Ka Yin (周嘉賢) of cash in the sum of HK$60 and a multi-purpose bankcard. The applicant was convicted after trial, and Her Honour District Judge Toh sentenced him to imprisonment for 40 months. He now seeks leave to appeal against conviction and sentence.", "zh-HK": "上訴許可申請人吳永恒於本年2月25日在區域法院被控一項搶劫罪名，罪行詳情指申請人在1999年9月8日，在灣仔道與何志偉（即本案之第一被告）及李偉業（即本案之第二被告）搶劫周嘉賢，劫去現金港幣60元及一張萬用戶口卡。經審訊後，申請人其後被裁定罪名成立。區域法院杜麗冰法官判申請人入獄40個月。申請人現申請許可上訴，要求推翻判罪及減刑。" } }, { "doc_id": 46, "seg_id": 3, "translation": { "en": "On the prosecution’s evidence, the circumstances of the offence are as follows:", "zh-HK": "根據控方証據，案發經過如下：" } }, { "doc_id": 46, "seg_id": 4, "translation": { "en": "On 8 September 1999, the victim Chow Ka Yin (i.e. PW1) was walking along Wanchai Road after work. D1 bumped against the victim, then stopped him and asked him who his “big brother” was. At the same time, D2 and applicant also approached. D2 asked the victim whether he had a “big brother”. The victim replied, “No.” D2 further asked the victim if he had any money on him. The victim also replied, “No.” D1 and D2 then assaulted and kicked the victim. Thereafter, the victim handed his wallet to D2. D2 took from the wallet the property referred to in the charge, including three $20 banknotes. At that time, D1 wanted to take away the victim’s mobile phone, but the applicant told D1 not to do so. D1 listened to the applicant and did not take away the victim’s phone. Later, two traffic policemen turned up and the three defendants immediately fled. The applicant jumped on board a taxi, but the taxi was stopped by the police. The applicant was arrested, and the police found a $20 banknote on his person. He admitted that the $20 banknote was part of the money obtained from the robbery. The victim subsequently identified the applicant as one of the three robbers who had intercepted him. The police cautioned the applicant for the robbery. Under caution, the applicant said, “I admit, but I did not intend it. It’s just that my two friends thrust twenty dollars into my pocket after they robbed the guy!”", "zh-HK": "1999年9月8日，受害人周嘉賢（即控方第一証人）下班後，行經灣仔道，第一被告向他碰撞，把他截停及質問他，他的『大佬』是誰。當時第二被告和申請人亦趨前。第二被告問受害人有沒有『大佬』，受害人回答：『沒有』。第二被告又問受害人身上有沒有錢，受害人答：『沒有』。於是第一和第二被告就毆打及用腳踢受害人，其後，受害人將錢包交給第二被告。第二被告從錢包內，拿走控罪所指的財物包括三張港幣20元紙幣。當時，第一被告想拿走受害人的手提電話，但申請人叫第一被告不要這樣做，第一被告聽從申請人沒有把受害人的電話拿走。後來有兩名交通警員出現，三名被告遂即時逃跑。申請人逃上一輛的士，但該的士被警員截停。申請人被拘捕後，警員在他身上找出一張港幣20元紙幣，申請人承認該港幣20元紙幣是搶劫得來的部份款項。受害人其後認出申請人是三名截停他的賊人之一。警員就該搶劫罪向申請人警誡，在警誡下，申請人說：『我認。但是我係唔想。我兩個friend笠完條友，夾硬塞廿蚊落我袋咋！』" } }, { "doc_id": 46, "seg_id": 5, "translation": { "en": "At trial, the applicant testified that on the day in question, before he met D1 and D2 in Wanchai Road, he had no knowledge whatsoever of the robbery. He also testified that, prior to his arrival, D1 and D2 had already assaulted and demanded money from the victim.", "zh-HK": "原審時，申請人作供稱，當日他與第一和第二被告在灣仔道會面前，對搶劫一事全不知情。而且在他到場前，第一和第二被告經已毆打受害人和向受害人要錢。" } }, { "doc_id": 46, "seg_id": 6, "translation": { "en": "Judge Toh disbelieved the applicant’s testimony and believed the victim’s evidence. She concluded that the applicant approached the victim with D2 and that the applicant was present when the victim was assaulted by the two defendants. The applicant had never intervened or told the other two defendants not to rob. When the applicant saw the policemen, he immediately fled and took off his jacket in the course in order to avoid detection. In the end, Judge Toh ruled that the applicant did take part in the robbery and therefore convicted him of robbery.", "zh-HK": "杜法官不相信申請人的証供。她相信受害人的証供。她的結論是申請人和第二被告一同走到受害人面前，受害人被兩名被告毆打時，申請人亦在場。申請人從沒有制止或叫其他兩名被告不要搶劫。而申請人見警員出現，立即逃跑，並且在逃跑時脫掉外衣避免偵查。杜法官最終的結論是申請人有參與搶劫，裁定他搶劫罪罪名成立。" } }, { "doc_id": 46, "seg_id": 7, "translation": { "en": "The first and second grounds of appeal mainly complain that Judge Toh erred in ruling, on the sole basis that the applicant was present at the scene, that he and the other two defendants were accomplices in the robbery. Since Judge Toh did not rule that the applicant’s presence at the scene was pursuant to an agreement or premeditated plan between the applicant and the other two defendants, the conviction of the applicant was unsatisfactory.", "zh-HK": "上訴理由的第一點和第二點主要是指杜法官單憑申請人被發現於案件現場，錯誤地裁定申請人與同案另外兩人在有關劫案中是同一夥，但杜法官沒有裁定申請人出現在場是基於他與其他兩人有協議或預謀，而定申請人罪是不當的。" } }, { "doc_id": 46, "seg_id": 8, "translation": { "en": "The third ground of appeal is that the trial judge erred in inferring the applicant’s guilt from the mere fact that he had fled and taken off his jacket in the course.", "zh-HK": "第三點上訴理由是原審法官單憑申請人的逃跑和脫衣行徑錯誤推斷他有罪。" } }, { "doc_id": 46, "seg_id": 9, "translation": { "en": "The fourth ground of appeal is, even if the applicant were guilty, he should only have been guilty of handling stolen property. Judge Toh should not have failed to consider this alternative charge.", "zh-HK": "第四點上訴理由是申請人即使有罪，亦只是接贓罪。杜法官不應沒有考慮此交替性罪名。" } }, { "doc_id": 46, "seg_id": 10, "translation": { "en": "There is an abundance of judicial authorities on the legal concepts of “joint enterprise” and “aiding and abetting”. One of the principles that emerge is this: where it is necessary to prove that a defendant aided and abetted another to commit a crime on the basis that the defendant encouraged another to commit a crime, the prosecution must prove that the defendant intentionally and wilfully encouraged another to commit a crime. The mere fact that the defendant was present at the scene of his own accord when the other person committed a crime, even if such presence was not by chance, is not tantamount to encouraging another to commit a crime. If the defendant voluntarily and purposefully placed himself at the scene and witnessed the commission of the crime, he would naturally be expected to stop the crime from occurring to the extent that he was able to do so. Under certain circumstances, however, if he did not object to or dissent from the commission of the crime, this may constitute cogent evidence from which the jury may conclude that the defendant has aided or abetted another to commit a crime. The foregoing sums up the views expressed in two cases: R v Kwan Kwok-hing [1977] HKLR 159 and R v Clarkson and Ors 55 Cr App R 445.", "zh-HK": "有關共同犯罪和協助及教唆的法律概念，已經有多個案例予以解釋。其中一點是如有需要以被告鼓勵他人犯罪為依據，証明被告協助及教唆他人犯罪，控方必須証明被告意圖及故意鼓勵他人犯案。如果被告只是在其他人犯案時自願置身於現場，即使是非意外地在場，這並不相等於被告鼓勵他人犯罪。如果被告是自願的及有目的地置身於現場，目擊犯案經過，順理成章的，別人會預料他會制止案件發生，而他亦有能力如此做，但是如他並沒有提出反對或表示不同意犯案，在某些情況下，這是可以構成陪審團可以倚賴的強力証據，結論被告有協助或教唆別人犯罪。以上是女皇訴關國慶（1）（譯音）及女皇訴嘉信（2）（譯音）及其他人兩案的綜合意見。" } }, { "doc_id": 46, "seg_id": 11, "translation": { "en": "This Court is of the view that the trial judge did not convict the applicant solely on the basis that he was present at the scene. The conviction was based on the following evidence: after D1 intercepted the victim, the applicant and D2 approached the victim; when the victim was assaulted by D1 and D2 and, later on, when D2 took away property from the victim’s wallet, the applicant was beside him, and all along the applicant neither intervened nor expressed disapproval of what the other two defendants were doing; subsequently, the applicant told D1 not to take away the victim’s mobile phone, and this indicates that the applicant thought that enough had been taken from the victim; D1 also followed the applicant’s instruction; and when applicant saw the policemen, he immediately fled with the other two defendants and took off his jacket with intent to avoid detection.", "zh-HK": "本庭認為原審法官不是單憑申請人在現場的証據而裁定申請人有罪，原審法官是依據以下的証據定申請人有罪：即第一被告截停受害人，申請人與第二被告一同趨近受害人；受害人被第一和第二被告毆打時及後來第二被告從受害人錢包拿走財物時，申請人一直在旁，並未制止亦沒有表示不同意兩人所做的；申請人及後叫第一被告不要拿走受害人的手機，顯示申請人認為所拿去的財物已足夠；而第一被告亦聽從申請人之指示；申請人見到警員出現，立即與其他兩人一同逃跑，並脫去外衣以圖避別人的偵查。" } }, { "doc_id": 46, "seg_id": 12, "translation": { "en": "The above evidence does not serve to prove any prior agreement between the applicant and the other two defendants to rob the victim or other people, but it does prove that the applicant’s presence at the scene was neither by sheer chance nor for no reason whatsoever. His approaching the victim with D2 was plainly related to D1’s intercepting the victim. Judge Toh could infer from the applicant’s behaviour at the scene that he had encouraged the other two defendants to commit the offence. She could also infer from the evidence of his instructing the other two defendants not to take away the victim’s mobile phone that the applicant actually took part in the robbery. The applicant alleged that the reason for his taking to his heels when policemen appeared was that he was frightened. Nevertheless, this explanation, which might, if accepted, have provided an “innocent” motive for fleeing, had been rejected by the judge. On this basis, Judge Toh was quite entitled to draw an inference adverse to the applicant. (See R v Mo Shiu-shing [1992] 2 HKLRD 155).", "zh-HK": "以上的証據，雖然不能証明申請人與其他兩名被告事先有協議，合謀搶劫受害人或其他人，但可以証明他出現於現場不是偶爾的，亦不是無緣故的。他是跟第二被告一同上前面對受害人，明顯地是與第一被告截停受害人有關。杜法官是可以從申請人在案發現場的表現，推斷他在鼓勵其他兩人犯案；從他指示兩人不要拿走受害人的手提電話的証據，杜法官可以推斷申請人有實際參予搶劫行動。申請人稱他在警員出現時，發足奔逃原因是他受驚，但是這個可以顯示他有『清白』動機逃跑的解釋，沒有被法官接納。憑這點証據杜法官可以作出對他不利的推斷。〔參考香港特別行政區訴巫紹盛（3）（譯音）一案〕。" } }, { "doc_id": 46, "seg_id": 13, "translation": { "en": "This Court comes to the conclusion that the trial judge has not erred in law or in fact in her judgment. There is sufficient evidence of the applicant having committed the offence to support Judge Toh’s verdict that the applicant was guilty. The application for leave to appeal against conviction is accordingly refused.", "zh-HK": "本庭的結論是不論在法理上或事實方面，法官的判斷都沒有不對的地方。指証申請人犯案的証據是足夠支持杜法官的裁決申請人有罪。本庭拒絕申請許可上訴推翻判罪。" } }, { "doc_id": 46, "seg_id": 14, "translation": { "en": "Turning to the application for leave to appeal against sentence, this is a case where three people acted in concert to commit robbery, and violence was involved. The starting point of 4 years as adopted by Judge Toh is in accord with the general sentencing guideline for this type of offence. The discount given to the applicant and the eventual sentence of imprisonment for 40 months show that the trial judge had been lenient to the applicant. In our view, this sentence is neither excessive nor wrong in principle. The application for leave to appeal against sentence is therefore also refused.", "zh-HK": "至於申請許可上訴減刑，本案是一宗三人合夥行動，使用暴力的搶劫案。杜法官以4年為刑期起點沒有違反此類案件一般判刑的指引。而法官給予申請人減刑，以致最終判申請人入獄40個月，顯示法官已寬大處理申請人。40個月的刑期，本庭認為毫不過重，亦未違反原則，申請許可上訴減刑亦予以拒絕。" } }, { "doc_id": 46, "seg_id": 15, "translation": { "en": "Ms. E. Chan, Senior Assistant Director of Public Prosecutions, for the respondent.", "zh-HK": "答辯人：由陳月好高級助理刑事檢控專員代表" } }, { "doc_id": 46, "seg_id": 16, "translation": { "en": "Mr. Patrick Szeto, instructed by T. C. Lau & Co, for the applicant for leave to appeal.", "zh-HK": "上訴許可申請人：由劉大潛律師行委派司徒栢大律師代表" } }, { "doc_id": 47, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the Reasons for Judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 47, "seg_id": 2, "translation": { "en": "Charges", "zh-HK": "控罪" } }, { "doc_id": 47, "seg_id": 3, "translation": { "en": "The applicant was charged with eight charges. After trial before Deputy District Judge Johnny Chan, the applicant was found guilty of six of them. The six charges were:", "zh-HK": "申請人被控八項控罪。案件經區域法院暫委法官陳仲衡審" } }, { "doc_id": 47, "seg_id": 4, "translation": { "en": "The first charge: Conspiracy to defraud, contrary to common law;", "zh-HK": "理後，申請人被裁定其中六項控罪罪名成立。這六項控罪如下：" } }, { "doc_id": 47, "seg_id": 5, "translation": { "en": "The fourth to eighth charges: Theft, contrary to section 9 of the Theft Ordinance.", "zh-HK": "第一項控罪：「串謀詐騙」罪，違反普通法；第四至第八項控罪：「盜竊」罪，違反《盜竊罪條例》第9條。" } }, { "doc_id": 47, "seg_id": 6, "translation": { "en": "The applicant also pleaded guilty to the second charge, namely, a charge of furnishing false information, contrary to section 19(1)(b) of the Theft Ordinance, Cap. 210. He only pleaded guilty to the charge on the fourth day of the trial and he did not agree to the facts presented by the prosecution in relation to that charge. Deputy Judge Chan had to continue hearing evidence for that charge. At the conclusion of the hearing, Judge Chan rejected the applicant’s version.", "zh-HK": "申請人亦承認第二項控罪，即「提供虛假資料」罪，違反《盜竊罪條例》(香港法例第210章)第19(1)(b)條。他是在審訊的第四天才承認該控罪，但他不同意控方就該項控罪所提出的案情，陳法官需要繼續聆訊涉及該控罪的證供。經聆訊後，陳法官拒絕接納申請人所提出的版本。" } }, { "doc_id": 47, "seg_id": 7, "translation": { "en": "Appeal against sentence", "zh-HK": "刑期上訴" } }, { "doc_id": 47, "seg_id": 8, "translation": { "en": "Deputy Judge Chan sentenced the applicant to a term of imprisonment for 4 years and 6 months. The individual term of imprisonment imposed by Deputy Judge Chan on each charge was as follows: 18 months for the first charge; 38 months for the second charge; 12 months each for the fourth to sixth charges and the eighth charge; 8 months for the seventh charge. 10 months out of the term of imprisonment on the first charge were to run consecutively to the 38 months imposed on the second charge. The sentences imposed on the fourth to eighth charges were to run concurrently but 6 months out of them were to run consecutively to the terms of imprisonment imposed on the first and second charges.", "zh-HK": "陳法官判處申請人4年6個月監禁。陳法官就每項控罪所判處的個別監禁刑期如下：第一項控罪是18個月；第二項控罪是38個月；第四至六及第八項控罪各為12個月；第七項控罪是8個月。第一項控罪的10個月刑期與第二項控罪的38個月刑期分期執行。第四至第八項控罪的刑期同期執行，但其中六個月則與第一及第二項控罪分期執行。" } }, { "doc_id": 47, "seg_id": 9, "translation": { "en": "The applicant applied for leave to appeal against the sentence. After hearing, we allowed the application and, treating the application as the appeal proper, altered the total term of imprisonment to 3 years and 9 months.", "zh-HK": "申請人就刑期提出上訴許可申請。經聆訊後，本庭批准申請，視申請為正式上訴及將總刑期更改為3年9個月監禁。" } }, { "doc_id": 47, "seg_id": 10, "translation": { "en": "The applicant had originally also applied for leave to appeal against conviction but abandoned the said application on the day of the hearing. We dismissed the said application accordingly.", "zh-HK": "申請人原本亦就定罪提出上訴許可申請，但於聆訊當日放棄有關申請。本庭即席撤銷有關申請。" } }, { "doc_id": 47, "seg_id": 11, "translation": { "en": "The prosecution’s case", "zh-HK": "控方案情" } }, { "doc_id": 47, "seg_id": 12, "translation": { "en": "The first prosecution witness (“PW1”) was in the yarn business and operated a business called “Golden A Yarn Factory” (“Golden A”). The applicant and the third defendant in the case ran a business called “Tak Shun Weaving Factory” (“Tak Shun”). PW1 had business dealings with Tak Shun. In 1998, Tak Shun was wound up and closed its business. It owed Golden A some payments for goods in the region of over $1 million. The applicant was adjudged bankrupt by the court.", "zh-HK": "控方第一證人(‘第一證人’)從事紗線生意及經營「金A線廠」(「金A」)。申請人與同案的第三被告人經營「德信織造廠」(「德信」)。第一證人與德信有生意往來。1998年，「德信」清盤結業及欠下「金A」約逾$1,000,000的貨款。申請人被法庭頒令破產。" } }, { "doc_id": 47, "seg_id": 13, "translation": { "en": "The first charge", "zh-HK": "第一項控罪" } }, { "doc_id": 47, "seg_id": 14, "translation": { "en": "After Tak Shun was wound up, the applicant suggested to PW1 that they should enter into partnership to run another weaving factory, i.e. the “New Tak Shun Weaving Factory” (“New Tak Shun”), so that the applicant and the third defendant could make repayments to PW1 by means of the profits from the business. Since the applicant was a bankrupt, the second defendant in the case was invited to join as a shareholder of New Tak Shun to represent the interests of the applicant and the third defendant. The two other partners of New Tak Shun were PW1 and a Mr. Wong. After the inception of New Tak Shun, the applicant set up another business of the same name of “New Tak Shun Weaving Factory” (“fake New Tak Shun”) without the knowledge of PW1. The applicant deposited the cheques, which were given to him by the customers of New Tak Shun in favour of New Tak Shun for payment of goods, into the bank accounts of fake New Tak Shun. The amounts involved were approximately in excess of $300,000. PW1 went after the applicant. Subsequently, the applicant’s mother had to sell a property and repaid for the applicant a sum of about $290,000 to PW1.", "zh-HK": "「德信」清盤後，申請人提議與第一證人合夥經營另外一間織造廠，即「新德信織造廠」(「新德信」)，讓申請人及第三被告人可以生意的盈利來償還債款給第一證人。由於申請人是破產人士，故此同案的第二被告人被邀請成為「新德信」的股東，以代表申請人及第三被告人的利益。「新德信」的另外兩名合夥人是第一證人及另外一位黃先生。「新德信」成立後，申請人在第一證人不知情下設立另外一間同名的「新德信織造廠」(「假新德信」)。申請人將「新德信」客戶交給他作為支付「新德信」貨款的支票存入「假新德信」的銀行戶口，涉及的金額約逾$300,000。第一證人向申請人提出追究，後來申請人的母親變賣樓宇，替他償還約$290,000給第一證人。" } }, { "doc_id": 47, "seg_id": 15, "translation": { "en": "The second charge", "zh-HK": "第二項控罪" } }, { "doc_id": 47, "seg_id": 16, "translation": { "en": "After the incident of fake New Tak Shun came to light, New Tak Shun ceased its business. But during March and April 2000, the applicant again persuaded PW1 to establish another company which would be run by him and he would make use of its profits to repay the debts to PW1. The company was called “Kam Fook Garment Accessories Company Limited” (“Kam Fook”).", "zh-HK": "「假新德信」事件被揭發後，「新德信」停止營業，但在2000年3、4月期間，申請人再次說服第一證人成立另一間公司，讓他經營及以盈利來償還債款給第一證人。該公司名為「金福製衣配料有限公司」(「金福」)。" } }, { "doc_id": 47, "seg_id": 17, "translation": { "en": "In November 2003, PW1 discovered that some amounts of money, which were deposited into Kam Fook’s account, came from two companies which had no business dealings with Kam Fook. PW1 found it suspicious and enquired of the applicant about it. The applicant had in fact sold goods in the name of Kam Fook to customers through those two companies. In order to hide the fact, the applicant showed PW1 some payment invoices issued to customers by Kam Fook, 21 of which contained some non-existent sales information, involving a total amount which approximately exceeded $1,300,000. The applicant had pocketed the money himself.", "zh-HK": "2003年11月，第一證人發現存入「金福」戶口的款項來自兩間與「金福」沒有生意往來的公司。第一證人因覺得有可疑，就向申請人查詢。申請人其實是以「金福」名義經這兩間公司把貨品賣給客戶，他為了隱瞞事件，向第一證人展示一些「金福」發給客戶的收款發票，其中的21張發票記載着不存在的銷售資料，總金額約逾$1,300,000。申請人將這筆錢中飽私囊。" } }, { "doc_id": 47, "seg_id": 18, "translation": { "en": "Regarding the second charge, the applicant admitted that the relevant invoices were false. But he claimed that those invoices were provided to PW1 upon the latter’s request for the purpose of filing the tax returns, or for the purpose of offsetting the sale of goods to Kam Fook by Golden A. Deputy Judge Chan rejected the applicant’s version of events.", "zh-HK": "就第二項控罪，申請人承認有關的發票是虛假的，但他聲稱有關發票是第一證人要求他提供給第一證人作為報稅之用，又或者作為抵銷「金A」出售貨物給「金福」之用。陳法官拒絕接納申請人的說法。" } }, { "doc_id": 47, "seg_id": 19, "translation": { "en": "The fourth to eighth charges", "zh-HK": "第四至八項控罪" } }, { "doc_id": 47, "seg_id": 20, "translation": { "en": "Between 15 September and 10 December 2004, the applicant had even stolen sums of money paid to Kam Fook by its customers, the total sum of which was approximately $79,500.", "zh-HK": "請人在2004年9月15日至12月10日期間更偷取了「金福」客戶支付給「金福」的款項，總數約$79,500。" } }, { "doc_id": 47, "seg_id": 21, "translation": { "en": "Sentencing guidelines", "zh-HK": "量刑指引" } }, { "doc_id": 47, "seg_id": 22, "translation": { "en": "In sentencing, Deputy Judge Chan had considered the sentencing guidelines laid down by the Court of Appeal on an offence of theft involving a breach of trust in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017. The sentencing guidelines laid down in Cheung Mee Kiu and Ng Kwok Wing are as follows:", "zh-HK": "陳法官在量刑時考慮了上訴法庭在香港特別行政區訴張美嬌 [2006] 4 HKLRD 776 及香港特別行政區訴吳國榮 [2008] 4 HKLRD 1017兩案就涉及違反誠信的「盜竊」罪所定的量刑指引。張美嬌及吳國榮 的量刑指引如下：" } }, { "doc_id": 47, "seg_id": 23, "translation": { "en": "We would reiterate here that Ng Kwok Wing has not enhanced the ranges of sentence laid down in Cheung Mee Kiu but has only made a more logical adjustment to the ranges of sentence involving the same amounts of money. For example, the range of sentence for the band 3 amounts, i.e. between $1,000,000 and $3,000,000, in Cheung Mee Kiu is 3 to 4 years while the range of sentence is 5 to 9 years for the band 2 amounts of between $3,000,000 and $15,000,000. If looking at the figures only, for the same amount of $3,000,000, the sentence is 4 years and 5 years respectively. We do not think this was the intent of the Court of Appeal in Cheung Mee Kiu. Therefore, the Court of Appeal has unified the relevant ranges of sentence in Ng Kwok Wing so that the maximum sentence of the lower band matches the minimum sentence of the upper band.", "zh-HK": "本庭在此重申吳國榮 並沒有將張美嬌所定的刑期提高，而是將涉及同一款額的刑期作出一個更具邏輯性的調整，舉例來說張美嬌就第三組款項，即$1,000,000至$3,000,000的刑期為3至4年監禁，而就第二組款項，即$3,000,000至$15,000,000的監禁期是5至9年。如果單從數字來看涉及同樣是$3,000,000的款項，刑期卻分別是4年及5年，本庭不認為這是上訴庭在張美嬌 一案的原意，故此上訴庭在吳國榮 一案將有關的刑期統一，令下一組的最高刑期與對上一組的最低刑期吻合。" } }, { "doc_id": 47, "seg_id": 24, "translation": { "en": "Our opinion", "zh-HK": "本庭意見" } }, { "doc_id": 47, "seg_id": 25, "translation": { "en": "In the present case, all three sets of charges were either an offence of theft involving a breach of trust or an offence with such background. Therefore, the sentencing guidelines laid down in Cheung Mee Kiu and Ng Kwok Wing are of substantive cross-reference value in the consideration of whether the ultimate sentence passed by Deputy Judge Chan was in line with the relevant sentencing guidelines. Under the guidelines, the range of sentence for amounts of money between $1,000,000 and $3,000,000 is 3 to 5 years’ imprisonment. On this basis, for an offence which involved an amount of money not exceeding $2,000,000, the term of imprisonment should be 4 years or less. The amount of money involved in the present case is about $1,700,000. If one just looks at the figure, the sentence of 4½ years’ imprisonment passed by Deputy Judge Chan far exceeds the range of sentence set by the guidelines. We agree that sentencing guidelines are not some sort of straitjacket and the court may make adjustment in accordance with the particular facts of the case heard by the court. But we are of the opinion that the extent of the adjustment should not depart excessively from the range of sentence set by the guidelines. Under the facts of the instant case, including the amount of money involved, the time and the mode of the commission of the crime, the sentence after trial, in our view, should be one of 4 years’ imprisonment. But since the applicant pleaded guilty to the second charge, he should be entitled to some reduction in the sentence. So we are of the view that the appropriate sentence should be 3 years and 9 months’ imprisonment. We would adopt the individual sentence passed on each charge by Deputy Judge Chan. We would also agree with the discount of 4 months (about 10% of a starting point of 42 months) given by Judge Chan in respect of the sentence on the second charge: the applicant only pleaded guilty halfway in the trial and his version of the facts was not accepted by Judge Chan in the end, so his plea of guilty did not substantively save the time of the trial. We would order that 4 months out of the sentence on the first charge should run consecutively to the sentence of 3 years and 2 months imposed on the second charge, the sentences imposed on the fourth to eighth charges should run concurrently but 3 months out of them should run consecutively to the sentences passed on the first and second charges, making a total sentence of 3 years and 9 months’ imprisonment.", "zh-HK": "在本案，三組控罪都涉及違反誠信的「盜竊」罪及帶有這背景的罪行，故此張美嬌及吳國榮 所定的量刑指引是有實質的相互參考價值，用來考慮陳法官所定的最終刑期是否符合有關的量刑指引。根據指引，涉及$1,000,000至$3,000,000款項的刑期為3年至5年監禁。在此基礎下，不涉及超過$2,000,000的罪行，刑期應為4年以下的監禁。本案涉案款額是約$1,700,000，若單從數字來看，陳法官所定的4年半監禁遠超越指引所定出的刑期。本庭同意量刑指引並不是一件緊身衣服，法官在聆聽案情後可以根據實質案情作出調整，但本庭認為調整的幅度與指引所定的刑期也不應相差太遠。本庭認為根據本案案情，包括涉案金額、犯罪的時間及手法，經審訊後的刑期應為4年監禁，但由於申請人承認第二項控罪理應給予他部分刑期扣減，故此本庭認為適當的刑期是3年9個月監禁。本庭採用陳法官就各項控罪所定出的個別刑期。本庭亦同意陳法官就第二項控罪刑期(42個月的量刑基準)所作出的4個月(約10%)的扣減：申請人只是在審訊中途認罪，他提出的案情版本最終亦不被陳法官接受，他的認罪並沒有實質地節省審訊時間。本庭命令就第一項控罪的4個月刑期須與第二項控罪的3年2個月刑期分期執行，第四至第八項控罪的刑期須同期執行，但其中的3個月與第一及第二項控罪的刑期分期執行，總刑期為3年9個月。" } }, { "doc_id": 47, "seg_id": 26, "translation": { "en": "Ms. Catherine Ko, Senior Public Prosecutor of the Department of Justice, for HKSAR.", "zh-HK": "答辯人：由律政司高級檢控官高寶翠代表。" } }, { "doc_id": 47, "seg_id": 27, "translation": { "en": "Mr. Jeremy Cheung, instructed by the Director of Legal Aid, for the Applicant (re sentence).", "zh-HK": "申請人(刑罰)：由法律援助署轉聘張民輝大律師代表。" } }, { "doc_id": 47, "seg_id": 28, "translation": { "en": "The Applicant in person, present (re conviction).", "zh-HK": "申請人(定罪)：無律師代表，親自應訊。" } }, { "doc_id": 48, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案書：" } }, { "doc_id": 48, "seg_id": 2, "translation": { "en": "The charges", "zh-HK": "控罪" } }, { "doc_id": 48, "seg_id": 3, "translation": { "en": "The Applicant was charged with 38 counts of “theft”, contrary to section 9 of the Theft Ordinance (Cap. 210 of the Laws of Hong Kong), and one count of “furnishing false information”, contrary to section 19(1)(b) of the Theft Ordinance.", "zh-HK": "申請人被控三十八項「盜竊罪」，違反《盜竊罪條例》（香港法例第 210 章）第 9 條及一項「提供虛假資料罪」，違反《盜竊罪條例》第 19(1)(b) 條。" } }, { "doc_id": 48, "seg_id": 4, "translation": { "en": "The other defendant to the case (D2) was charged with 4 counts of “dealing with property known or believed to represent proceeds of an indictable offence”, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance (Cap. 455 of the Laws of Hong Kong).", "zh-HK": "同案的第二名被告人被控四項「處理已知道或相信為代表從可公訴罪名的得益的財產罪」，違反《有組織及嚴重罪行條例》（香港法例第 455 章）第 25(1) 及 (3)條。" } }, { "doc_id": 48, "seg_id": 5, "translation": { "en": "After trial before District Judge Stanley Chan, the Applicant and D2 were convicted and sentenced to imprisonment for 5 years and 3 months and 12 months respectively. They both applied for leave to appeal against conviction. D2 filed a “notice of abandonment” on the day before the hearing of the present application, and D2’s application was dismissed accordingly. We now deal with the Applicant’s application.", "zh-HK": "案件經區域法院陳廣池法官審理後，申請人和第二被告人均被判罪名成立及分別被判入獄五年零三個月和十二個月。兩人對定罪提出上訴許可申請。第二被告人於本申請聆訊前一天提交「放棄通知書」，法庭根據該份文件撤銷第二被告人的申請。本庭現處理申請人的申請。" } }, { "doc_id": 48, "seg_id": 6, "translation": { "en": "Facts of the case", "zh-HK": "案情" } }, { "doc_id": 48, "seg_id": 7, "translation": { "en": "From March 2003 to late 2004 or early 2005, the Applicant was employed as an accounting clerk by one Silverart (Hong Kong) Limited (“Silverart HK”). Silverart HK was established by Wong Tuen Hung (王端雄) (PW1) who had also formed a company named Silverart (Quan Zhou) Handicraft Company (“Silverart QZ”) in Mainland China. Silverart QZ was engaged in manufacturing handicraft products whereas Silverart HK was responsible for selling those products. Whenever Silverart HK received payment for the goods, it would retain approximately 20% thereof for itself and then remit the remaining amount to Silverart QZ to enable that company to pay its workers’ wages and purchase materials.", "zh-HK": "申請人在 2003 年 3 月至 2004 年底或 2005 年初於一間名為銀藝（香港）有限公司（‘香港銀藝’）的公司任職會計文員。香港銀藝是由第一控方証人王端雄(‘PW1’) 開設的，他亦在內地開設另一間名為銀藝（泉州）工藝公司（‘泉州銀藝’）的公司。泉州銀藝是負責生產手工藝品，而香港銀藝負責銷售有關產品。香港銀藝在收到貨款後會先扣除約百分之二十的費用，然後將餘款滙給泉州銀藝作為支付工資及購買財料之用。" } }, { "doc_id": 48, "seg_id": 8, "translation": { "en": "The 38 counts of “theft” alleged that between 27 March 2003 and 6 December 2004, without permission from her employer, the Applicant made out company cheques and withdrew funds from the company’s bank accounts, thereby appropriating for her personal use large sums of money that belonged to the company.", "zh-HK": "三十八項的「盜竊罪」指申請人在 2003 年 3 月 27 日至 2004 年 12 月 6 日期間，在未得僱主批准下開出公司支票及從公司的銀行戶口提款，挪用大筆公司款項供其個人使用。" } }, { "doc_id": 48, "seg_id": 9, "translation": { "en": "The 39th count alleged that the Applicant provided false accounting documents to Silverart’s accountant with intent to conceal her misconduct.", "zh-HK": "第 39 項控罪指申請人為了遮掩其不當行為而向銀藝的會計師提供虛假會計文件。" } }, { "doc_id": 48, "seg_id": 10, "translation": { "en": "After the Applicant took up employment with PW1, she suggested to PW1 that the company should find ways to broaden the source of profit and economize on expenditure, and also offered to help the company reduce expenses. For this reason, she gained the trust of PW1. In October 2003, PW1 set up two other companies, namely Hong Kong Wing Kam (香港榮鑫) and Shenzhen Wing Kam (深圳榮鑫) respectively. PW1’s wife (i.e. PW2) held 99% of the shares of Wing Kam, and the remaining 1% was gifted to the Applicant as a token of appreciation of her contribution to the company.", "zh-HK": "申請人獲 PW1 聘用後建議 PW1 公司要開源節流及替公司節省開支，她因此獲 PW1 信任。 PW1 於 2003 年 10 月開設另外兩間公司：香港榮鑫及深圳榮鑫。榮鑫的百分九十九股權是屬於 PW1 的妻子（即PW2），餘下的百分之一股權是 PW1 為答謝申請人對公司的供獻而贈送給她的。" } }, { "doc_id": 48, "seg_id": 11, "translation": { "en": "Silverart had three major bank accounts. As PW1 had to go to the Mainland frequently for business, he would from time to time sign four or five crossed cheques which were then kept by the accounts department. Whenever the accounts department issued a cheque, it would retain a photocopy of the cheque, the payment request form and the cheque stub, and would also make a record of the purpose of issuing the cheque. Furthermore, Silverart would carry out transactions via internet accounts held by the company with two of the banks. For each transaction, the accounting staff would input data on the webpage of the bank and PW1 would then key in the password. When PW1 was out of Hong Kong, he would tell a staff member of the company (e.g. the secretary) the password over the phone, and the staff member would then take steps to complete the banking transaction on the internet.", "zh-HK": "銀藝有三個主要的銀行戶口。PW1 因經常要到內地工作，所以簽署了四至五張劃線支票，交給會計部保管，每當會計部發出支票後會保留有關支票的影印本、付款申請表及支票存根，亦會在有關文件上記錄開出支票的用途。另外，銀藝亦會使用其中兩間銀行的網上戶口來進行交易，會計人員先在銀行網頁上輸入資料，然後由 PW1 輸入密碼，每當 PW1 不在香港時，他會打電話給如秘書的公司職員，將密碼告訴他們，讓他們進行銀行網上交易程序。" } }, { "doc_id": 48, "seg_id": 12, "translation": { "en": "In December 2003, the Applicant told PW1 that the company was short of funds. She offered to help the company with her own money, saying that her ex-husband was very rich. She neither imposed any condition for helping the company nor asked PW1 to pay interest on the sums that she might disburse on behalf of the company.", "zh-HK": "申請人於 2003 年 12 月對 PW1 說公司的資金緊絀，她並主動提議由她斥資協助公司，她說她的前夫很富有，她沒有提出協助公司的條件，也沒有說過要收取她代公司墊支款項的利息。" } }, { "doc_id": 48, "seg_id": 13, "translation": { "en": "In early 2004, the Applicant was admitted into hospital and suggested to PW1 that he did not have to pay her salary for the period between March and June 2004. From July 2004 onwards, the Applicant worked only a day or two per week and an hour or two per day. In November 2004, the Applicant told PW1 that the company did not have sufficient funds to pay the factory and suppliers. PW1 became suspicious of this apparent shortage of funds because Silverart should enjoy a business turnover of as much as USD 2 to 3 million per year. He requested the Applicant to check the books with the accounting staff of Silverart QZ. As a result of this exercise, PW1 became aware that Silverart HK was indebted to the Mainland factory for at least HK$ 2 million.", "zh-HK": "2004 年初申請人需要入院留醫，她提議 PW1 無須支付由 2004 年 3 月至 6 月期間的薪金給她。從 2004 年 7 月開始，申請人每星期只上班一至兩天，而每天的工作時間亦只是一至兩小時。2004 年 11 月申請人告訴 PW1 公司沒有足夠的款項去付款給工廠及供應商。PW1 考慮到銀藝每年的生意額應高達二、三百萬美元，他因此對公司資金短缺一事感到懷疑。他要求申請人與泉州銀藝的會計職員核對賬目。賬目經核對後，PW1 獲悉香港銀藝欠內地的工廠最少二百多萬港元。" } }, { "doc_id": 48, "seg_id": 14, "translation": { "en": "From December 2004 to early 2005, the Applicant seldom went to work. During that period, debt collectors sought repayment from Silverart HK. PW1 tried to find out why the funds of the company became so tight, and in the course of his investigations he discovered that large sums of money had gone into the bank accounts of the Applicant and D2. PW1 made a report to the police on 31 January 2005. Subsequently, from the information provided by the banks and the documents supplied by the accountant, PW1 realized that the companies suffered losses of approximately HK$9,350,000 (Silverart suffered losses of approximately HK$8,355,000 and Wing Kam approximately HK$995,000) in respect of a number of cheque payments and internet transactions handled by the Applicant. The amounts involved in the charges laid against the Applicant and D2 were HK$3,700,000 and HK$420,000 respectively.", "zh-HK": "申請人自 2004 年 12 月至 2005 年初開始甚少上班。在這段期間香港銀藝被人追收欠款，PW1 在調查公司的資金為何那麼緊絀時發現有一大筆公司資金分別流入申請人和第二被告人的銀行戶口內。PW1 於 2005 年 1月31 日報警。之後，PW1根據銀行的資料及會計師提供的文件發現多項經申請人處理的支票付款及網上交易令公司損失約 HK$9,350,000（銀藝損失約 HK$8,355,000；榮鑫損失約 HK$995,000）。申請人和第二被告人於本案被控的控罪所涉及款項分別是約HK$3,700,000和 HK$420,000." } }, { "doc_id": 48, "seg_id": 15, "translation": { "en": "The Applicant’s case", "zh-HK": "申請人的案情" } }, { "doc_id": 48, "seg_id": 16, "translation": { "en": "The Applicant and D2 elected not to give evidence in court.", "zh-HK": "申請人及第二被告人選擇不出庭作供。" } }, { "doc_id": 48, "seg_id": 17, "translation": { "en": "DW1’s testimony", "zh-HK": "DW1 的証供" } }, { "doc_id": 48, "seg_id": 18, "translation": { "en": "The Applicant called Zhuang Xiao Hui (莊曉輝) (DW1) to give evidence. DW1 used to work in Silverart QZ and Shenzhen Wing Kam and came to know the Applicant in 2003. PW1 had told DW1 that the Applicant was in charge of the finances of the company and had provided funds to help him (PW1). DW1 said that he and the staff of Shenzhen Wing Kam regarded the Applicant as the boss. DW1 said that the Applicant had provided funds to help Wing Kam and paid the rentals, electricity fees and water charges when Wing Kam was established. DW1 also said that the Applicant had lent money to PW1 and that PW1 had requested him to persuade the Applicant to lend him money.", "zh-HK": "申請人傳召莊曉輝 (DW1) 作証。DW1 曾分別任職於泉州銀藝及深圳榮鑫。他於 2003 年認識申請人。PW1 曾經告訴 DW1 申請人是負責管理公司的財務及曾斥資協助他。DW1 說他和深圳榮鑫的員工都認為申請人是老闆。DW1 說申請人曾斥資協助榮鑫，榮鑫成立時的租金、水電費等支出都是由申請人繳付的。DW1 指申請人曾借貸給 PW1 及 PW1 曾要求他勸申請人借貸給他。" } }, { "doc_id": 48, "seg_id": 19, "translation": { "en": "The contents of the Applicant’s cautioned statements", "zh-HK": "申請人的警誡供詞內容" } }, { "doc_id": 48, "seg_id": 20, "translation": { "en": "The police took statements from the Applicant on two occasions. In brief, the Applicant made the following statements under caution:", "zh-HK": "警方就案件分別兩次向申請人錄取口供，申請人作出的警誡供詞簡述如下：" } }, { "doc_id": 48, "seg_id": 21, "translation": { "en": "Since November 2003, the Applicant had lent money to PW1 on many occasions, and following each loan PW1 had made repayment. The largest loan amount was approximately $3,000,000.", "zh-HK": "自2003 年 11 月開始，申請人多次借貸給 PW1，PW1 每次借貸後都有作出還款，當中最高的貸款額約 $3,000,000；" } }, { "doc_id": 48, "seg_id": 22, "translation": { "en": "The Applicant granted loans to PW1 in the following ways:", "zh-HK": "以下是申請人借貸給 PW1 的方式:" } }, { "doc_id": 48, "seg_id": 23, "translation": { "en": "She made repayments to creditors on behalf of PW1,", "zh-HK": "她代 PW1 還款給債主，" } }, { "doc_id": 48, "seg_id": 24, "translation": { "en": "She made payments to suppliers of goods and materials on behalf of PW1,", "zh-HK": "她代 PW1 支付貨款給物料供應商，" } }, { "doc_id": 48, "seg_id": 25, "translation": { "en": "She made deposits into the bank accounts of Silverart,", "zh-HK": "她存款入銀藝的銀行戶口內，" } }, { "doc_id": 48, "seg_id": 26, "translation": { "en": "She provided Silverart QZ with funds to enable it to operate,", "zh-HK": "她提供資金給泉州銀藝，使其業務得以運作，" } }, { "doc_id": 48, "seg_id": 27, "translation": { "en": "Upon PW1’s requests, she lent money to others on his behalf.", "zh-HK": "她應 PW1 的要求代 PW1 貸款給其他人士。" } }, { "doc_id": 48, "seg_id": 28, "translation": { "en": "The Applicant said that the reason for lending money to PW1 was that she had provided two to three million dollars to help Wing Kam, and that the factory of Silverart QZ was responsible for manufacturing Wing Kam’s products. Furthermore, PW1 agreed to Silverart and Wing Kam doing business together, and the Applicant and PW1 were business partners. As they were both the proprietors of Silverart, she kept lending money to PW1 and Silverart in order to support the company’s business.", "zh-HK": "申請人指她借貸給 PW1 的原因是她曾斥資二至三百萬元協助榮鑫，而榮鑫的產品是由泉州銀藝的工廠負責生產的，以及 PW1 同意銀藝與榮鑫合作做生意，她和 PW1 是生意上拍檔。由於兩人是銀藝的老闆，所以她不斷借貸給 PW1 及銀藝以支持公司的業務。" } }, { "doc_id": 48, "seg_id": 29, "translation": { "en": "The Applicant’s loans to PW1 and Silverart were recorded in a computer. However, the computer broke down in 2004 and those records were therefore lost.", "zh-HK": "申請人向PW1 及銀藝作出的貸款是有電腦記錄的，但該部電腦在 2004 年壞掉，亦因此失去有關的貸款記錄。" } }, { "doc_id": 48, "seg_id": 30, "translation": { "en": "As to the fact that the Applicant’s ex-husband (i.e. Lam Wai Keung (林偉強)) was named the payee on cheques made out by PW1 in repayment of the loans, the Applicant explained that her ex-husband’s name was put down as the payee because she wanted to press PW1 for repayment ― she hoped that PW1 would think that it was her ex-husband who pressed him for repayment and hence would make repayments promptly.", "zh-HK": "申請人就 PW1 在還款給她的多張支票抬頭人寫上她前夫的名字（即林偉強）一事解釋說她以她前夫名字作為支票抬頭人是為了催促 PW1 還款，她希望 PW1 以為是她前夫催促他還款就會早日還款給她。" } }, { "doc_id": 48, "seg_id": 31, "translation": { "en": "The Applicant said that Exhibit P143 (a list showing the breakdown of loans from Idy) was an accounting form used in the past, and that this kind of form was no longer used because it did not allow detailed and clear accounting records to be made.", "zh-HK": "申請人說証物 P143 （向 Idy 借款明細表）是早期採用的賬目記錄表，但由於這種款式的記錄表不能詳細及清晰地記錄賬目，所以現時已沒有再使用這種款式的賬目表了。" } }, { "doc_id": 48, "seg_id": 32, "translation": { "en": "D2’s record of interview by the police", "zh-HK": "第二被告人的警方會面記錄" } }, { "doc_id": 48, "seg_id": 33, "translation": { "en": "The cautioned statements made by D2 at the interview with the police can be summarized as follows:", "zh-HK": "第二被告人在警方會面時作出的警誡供詞簡述如下：" } }, { "doc_id": 48, "seg_id": 34, "translation": { "en": "The Applicant had obtained a loan of $350,000 from D2 in order to assist PW1 and the operation of his company.", "zh-HK": "申請人曾向他借貸 $350,000 用來協助 PW1 及其公司作為營運；" } }, { "doc_id": 48, "seg_id": 35, "translation": { "en": "The Applicant had repaid credit card debts for PW1 and lent money to PW1 so that he could pay the suppliers. PW1 and PW2 had repeatedly said that they were grateful to the Applicant for lending money to them in order to help them.", "zh-HK": "申請人為 PW1 清還信用卡欠款及借貸給 PW1 支付款項給供應商。PW1 及 PW2 曾多次說他們感激申請人為協助他們而向他們作出借貸。" } }, { "doc_id": 48, "seg_id": 36, "translation": { "en": "D2 and his friends had lent $1,100,000 to the Applicant and PW1. PW1 and PW2 had requested the Applicant to ask her ex-husband to lend money to PW1.", "zh-HK": "第二被告人聯同他的朋友曾經借了 $1,100,000 給申請人及PW1。PW1 及 PW2 要求申請人向她的前夫提出借貸給PW1 的請求。" } }, { "doc_id": 48, "seg_id": 37, "translation": { "en": "When D2 was asked whether there was any record showing deposits made by PW1’s company into D2’s bank accounts, he replied that the money represented repayment from the Applicant and PW1 to him. The Applicant had asked him to deliver a sum of money to Shenzhen for the purpose of paying the expenses of Shenzhen Wing Kam.", "zh-HK": "當第二被告人被問到他的銀行戶口有沒有出現由 PW1 公司存入的款項記錄時，他的答覆是這筆款項是申請人及 PW1給他的還款。申請人叫他將一筆錢送到深圳去，用以支付深圳榮鑫的開支。" } }, { "doc_id": 48, "seg_id": 38, "translation": { "en": "The funds of Silverart QZ over the past few years were provided by the Applicant.", "zh-HK": "泉州銀藝近數年的資金都是由申請人提供的。" } }, { "doc_id": 48, "seg_id": 39, "translation": { "en": "The Applicant provided funds to PW1’s two companies. The Applicant was the top leader of the company, and the Applicant and PW1 were both bosses of the companies. The Applicant and PW1 were emotionally attached to each other in a special way.", "zh-HK": "申請人向 PW1 的兩間公司提供資金。申請人是公司的最高領導人，申請人及 PW1都是公司的老闆。申請人與 PW1 之間存在特殊感情。" } }, { "doc_id": 48, "seg_id": 40, "translation": { "en": "He had viewed the computer record of a loan of $7 million granted by the Applicant to PW1. Subsequently, the Applicant told him that the relevant record was lost because the computer had broken down.", "zh-HK": "他曾看過申請人借款七百萬元給 PW1 的電腦記錄。後來申請人告訴他因電腦壞掉失去有關記錄。" } }, { "doc_id": 48, "seg_id": 41, "translation": { "en": "D2 granted the loan to PW1 by giving him, face-to-face, banknotes in Hong Kong currency. PW1 would then give cash in Renminbi to Silverart QZ.", "zh-HK": "第二被告人貸款給 PW1 的形式是親身與他見面，然後將港幣現金交給他，而 PW1 就會以人民幣現金支付給予泉州銀藝。" } }, { "doc_id": 48, "seg_id": 42, "translation": { "en": "Our views on the first ground of appeal", "zh-HK": "本庭對第一上訴理由的意見" } }, { "doc_id": 48, "seg_id": 43, "translation": { "en": "In support of her first ground of appeal, the Applicant relies on the principle set out in DPP v. Myer [1998] AC 124, HKSAR v. Lai Man Choi and Ng Shui Lun (CACC 628/2002, at paragraph 24) and HKSAR v. Ho Kin Hang Kenneth (CACC 152/2005, at paragraph 32), namely that the contents in defendant A’s cautioned statement which are unfavourable to defendant B cannot be used as evidence against defendant B, but the contents in defendant A’s cautioned statement which are favourable to defendant B can be used in support of defendant B’s defence. The prosecution has not taken issue with this principle.", "zh-HK": "申請人依據 DPP v. Myer [1998] AC 124 和香港特別行政區訴賴文財及吳瑞麟 CACC 628/2002 第 24 段；HKSAR v Ho Kin Hang Kenneth CACC 152/2005 第 32 段所定的原則，即被告甲在其警誡供詞上不利於被告乙的內容是不可以用作指証被告乙的，但是被告甲警誡供詞內有利於被告乙的警誡供詞卻是可以用作支持被告乙的辯護理由來支持第一上訴理由。控方就這項原則沒有提出任何異議。" } }, { "doc_id": 48, "seg_id": 44, "translation": { "en": "In our view, when Judge Chan said he would consider the cautioned statements of the two defendants separately and individually, he did not want any unfavourable evidence given by one defendant against the other to influence him into making a ruling adverse to that defendant.", "zh-HK": "本庭認為陳法官說他會個別及獨立地考慮兩名被告人的警誡供詞，他這樣做的用意是他不想當其中一名被告人對另外一名被告人作出不利的証供時會影響他的判斷，致令他對這名被告人作出不利的裁決。" } }, { "doc_id": 48, "seg_id": 45, "translation": { "en": "When Judge Chan was dealing with the Applicant’s case, he did not indicate that he had to consider such evidence from D2 that was favourable to the Applicant. Nevertheless, on the facts of the case, in particular the fact that the money involved in the charge against D2 also came from PW1’s company, the prosecution’s case against the Applicant had a close connection with that against D2. In our view, Judge Chan had in fact considered the evidence concerning D2, but in the end he did not accept the evidence in D2’s record of interview. D2, like the Applicant, said in a sweeping manner that the Applicant had lent money to PW1. In the absence of any solid evidence to support this statement, the prosecution’s allegation would not have been undermined even if another person had made the same statement. As D2 did not testify in court, his confession was nothing more than an exculpatory statement that he made outside the court, that statement being unsworn and not having been cross-examined or challenged. Judge Chan did not err when he decided not to attach any weight to that statement.", "zh-HK": "雖然陳法官在處理申請人的案情時沒有表示他需要考慮第二被告人有利申請人的答辯供詞，但縱觀整件案情，特別是第二被告人控罪所涉及的款項也是來自 PW1 的公司，控方針對申請人及第二被告人的案情是有緊密關係的。本庭認為陳法官其實已考慮過有關第二被告人的証供，但他最終都不接納第二被告人的會面記錄供詞。第二被告人像申請人一樣都是籠統地說申請人借貸給 PW1。在沒有任何實質証據可支持有關說法的情況下，即使有另一人重申有關說法也不會削弱控方的指控。由於第二被告人並沒有出庭作証，因此他的招認供詞只是一份在法庭以外所作、未經宣誓、未經盤問及質詢的辯白，陳法官不給予比重並非是錯誤的裁決。" } }, { "doc_id": 48, "seg_id": 46, "translation": { "en": "More importantly, in our view, it is clear from Judge Chan’s refusal to accept D2’s defence when considering the charge against D2 that he regarded D2 as an unreliable witness. This being the case, there was nothing wrong even if Judge Chan did not consider such evidence from D2 that was favourable to the Applicant.", "zh-HK": "本庭認為更重要的是陳法官在處理第二被告人的控罪時不接納他的辯白，這明顯表示他認為第二被告人不是一名可靠的証人。在這情況下就算陳法官沒有考慮第二被告人作出有利申請人的証供都沒有不妥。" } }, { "doc_id": 48, "seg_id": 47, "translation": { "en": "It is quite obvious that D2 was not an independent witness and what he said in his record of interview showed that he was protecting the Applicant. Their relationship was apparent from the following facts: the lease of the company of which D2 was the proprietor was signed by the Applicant, and the Applicant was a signatory to that company’s bank account. The Applicant had persuaded the staff of PW1’s company to switch over to D2’s new company. Judge Chan ruled that they were close friends before the Applicant became an employee of Silverart. The Applicant even parked a car that she had purchased at a location owned by D2. The Applicant recommended D2 to understudy in Silverart Shenzhen. The business of D2’s new company was also happened to be the same as that of PW1’s company, namely gift manufacturing. Judge Chan ruled that the Applicant and D2 were not simply casual acquaintances.", "zh-HK": "明顯地，第二被告人不是一名獨立証人，他的會面記錄內容顯示他是在維護申請人。從以下事情可見兩人的關係：第二被告人擁有自己的公司，他的公司租約是由申請人簽署的，而該公司的銀行戶口亦有申請人的簽名。申請人曾游說 PW1 公司的員工轉到這間新公司工作。陳法官裁定兩人在申請人入職銀藝之前已經是稔熟的朋友。申請人甚至將她購買的一輛汽車停泊在屬於第二被告人的地方。申請人推薦第二被告人到深圳銀藝學習。第二被告人所開設的新公司與 PW1 的公司的製造禮品生意亦雷同。陳法官裁定這兩人並非泛泛之交。" } }, { "doc_id": 48, "seg_id": 48, "translation": { "en": "The fourth ground of appeal", "zh-HK": "第四項上訴理由" } }, { "doc_id": 48, "seg_id": 49, "translation": { "en": "The Applicant contends that Judge Chan did not properly analyze or deal with the evidence from DW1 that was favourable to the Applicant.", "zh-HK": "申請人指陳法官沒有適當地分析或處理 DW1 作出有利於申請人的証供。" } }, { "doc_id": 48, "seg_id": 50, "translation": { "en": "Judge Chan’s finding that DW1 was not a reliable witness is a finding of fact. Judge Chan did not err when he refused to accept DW1’s testimony. PW1 and PW3 had both accused DW1 of having disclosed to the Applicant and D2 information on the company. There was ample evidence in the present case to support Judge Chan’s finding.", "zh-HK": "陳法官裁定 DW1 不是一名可靠的証人是一項事實的裁決。陳法官不接納 DW1 的証供是沒有錯誤的。PW1 和 PW3 都指稱 DW1 曾向申請人及第二被告人透露公司的資料。本案具有充分的証據支持陳法官的裁決。" } }, { "doc_id": 48, "seg_id": 51, "translation": { "en": "The fifth ground of appeal", "zh-HK": "第五上訴理由" } }, { "doc_id": 48, "seg_id": 52, "translation": { "en": "The Applicant submits that Judge Chan erred in ruling that the Applicant’s failure to give evidence in her own defence served to strengthen the prosecution’s case.", "zh-HK": "申請人指陳法官認為由於申請人不作供自辯，因而加強了控方案情這個裁決是錯誤的。" } }, { "doc_id": 48, "seg_id": 53, "translation": { "en": "In Li Defan v. HKSAR (2002) 5 HKCFAR 320, the Court of Final Appeal held that:", "zh-HK": "在 Li De Fan and HKSAR [2002] 5 HKCFAR 320 一案香港終審法院指出：" } }, { "doc_id": 48, "seg_id": 54, "translation": { "en": "In an appropriate case, the judge is entitled to point out that the jury may, but need not, consider that the prosecution case on a particular issue relevant to guilt is strengthened by the absence of the defendant from the witness box.", "zh-HK": "在適合的案件中，法官有權指出，陪審團可以(但不一定要)認為被告人不到證人欄作供變相加強了控方在某項與被告人是否有罪有關的爭議點上的案情的舉證力量。" } }, { "doc_id": 48, "seg_id": 55, "translation": { "en": "However, the cases in which such comment is permissible or even necessary will be exceptional, and each case must depend upon its own facts. The kind of case in which the judge may feel that the jury need additional comment is where the defence case involved alleged facts which:", "zh-HK": "然而，容許甚至有必要作出上述評論的案件是罕有的，而確實情況必須視乎個別案情而定。法官或認為需要向陪審團作額外評論的案件的種類，是當辯方聲稱的事實：" } }, { "doc_id": 48, "seg_id": 56, "translation": { "en": "are exculpatory and at variance with the prosecution evidence or additional to it;", "zh-HK": "屬辯白性質，並與控方證據不一致或超出該等證據的範圍；" } }, { "doc_id": 48, "seg_id": 57, "translation": { "en": "must, if true, be within the defendant’s knowledge; and", "zh-HK": "若然屬實，必須落在被告人的知悉的範圍內；及" } }, { "doc_id": 48, "seg_id": 58, "translation": { "en": "the defence is relying on some extra-judicial explanation which is neither supported by any document nor established by defence evidence.", "zh-HK": "屬於被告人所倚賴的一些司法以外的解釋，而該解釋既沒有任何文件支持，亦得不到辯方證據證實。" } }, { "doc_id": 48, "seg_id": 59, "translation": { "en": "Such comment should identify the issue to which the defendant’s election not to give evidence may be relevant, and the nature and strength of such comment must not be such as to contradict or nullify the essentials of the standard direction.", "zh-HK": "上述評論應指明可能與被告人選擇不作供有關的爭議點，而該等評論的性質和力量絕不能與上述標準指引的基本要素相悖或使之失效。" } }, { "doc_id": 48, "seg_id": 60, "translation": { "en": "In HKSAR v. Leung Chi Wah Earnest and another (CACC 275/2007), the Court of Appeal elaborated on the issue of whether the prosecution case can be strengthened by the defendant’s election not to testify in court, as follows:", "zh-HK": "上訴法庭在 HKSAR v. Leung Chi Wah Earnest (梁志華) and other （CACC 275/2007）一案對被告人不出庭作供是否可加強控方案情的舉証力量的議題作出以下的闡釋：" } }, { "doc_id": 48, "seg_id": 61, "translation": { "en": "Even though the defendant does not testify in court, where he calls other witnesses or evidence and such evidence tends to support his defence, the court cannot regard the defendant’s absence from the witness box as a fact which strengthens the prosecution case. (paragraphs 102 to 108)", "zh-HK": "雖然被告人沒有出庭作供，但當被告人有傳召其他証人或將其他証據呈堂，而該些証據是傾向於支持被告所提出的辯護理由的話，法庭便不可以視被告人不出庭作供為可以加強控方案情的舉証力量。（第 102-108 段）" } }, { "doc_id": 48, "seg_id": 62, "translation": { "en": "Similarly, where the defendant relies on inherent deficiencies in the prosecution case as his defence, and such prima facie deficiencies do exist at trial, the court cannot regard the absence of the defendant from the witness box as a fact which strengthens the prosecution case. (paragraphs 115 to 124)", "zh-HK": "同樣地當被告人是倚賴控方案情的潛在弱點去辯護時，而在審訊時控方案情又的確存在著表面的潛在弱點時，法庭便不可以視被告人不出庭作供為可以加強控方案情的舉証力量。(第 115-124 段)" } }, { "doc_id": 48, "seg_id": 63, "translation": { "en": "The court cannot, on the basis that it has rejected evidence favourable to the defence, regard the defendant’s absence from the witness box as something which strengthens the prosecution case. Whether the defendant’s absence from the witness box can be regarded as strengthening the prosecution case is to be determined at the conclusion of both the prosecution and defence cases and does not depend on what evidence is eventually accepted by the court. (paragraphs 109 to 114)", "zh-HK": "法庭不能夠因為已經拒絕接納有利於辯方的証據而視被告人不出庭作供為可以加強控方案情的舉証力量。法庭是否可以視被告人不出庭作供為可以加強控方案情的舉証力量是取決於當控辯雙方都已舉証完畢之時，而並非取決於法庭最終決定接納什麼証據。 (第 109-114 段)」" } }, { "doc_id": 48, "seg_id": 64, "translation": { "en": "Mr Wong, SC and Mr Chan for the Applicant submit that Judge Chan had erroneously applied the legal principles in Li Defan. Judge Chan ruled that the prosecution case was sufficient to establish the Applicant’s guilt because, it is submitted, the Applicant had not given evidence in her own defence and Judge Chan had refused to accept the exculpatory evidence given by the two defendants in their cautioned statements.", "zh-HK": "代表申請人的黃敏杰資深大律師及陳世傑大律師指陳法官錯誤地引用 Li De Fan 的法律原則。他們認為陳法官是由於申請人不作供自辯及不接納兩名被告人在警誡供詞的辯白而認定控方証據的力度已達到可以証明申請人有罪的程度。" } }, { "doc_id": 48, "seg_id": 65, "translation": { "en": "We need not discuss whether the principles laid down in Li Defan are applicable to the present case. This is because, in our view, in the circumstances of the case, there was sufficient basis for Judge Chan to reject the exculpatory evidence given by the Applicant and D2 in their cautioned statement as well as DW1’s evidence. Furthermore, the prosecution case contained no reasonable doubts, and the Applicant had elected not to give any explanation for matters within her knowledge, e.g. the source of funds with which she allegedly made payments for PW1 or the flow of the funds. In light of these, the evidence was sufficient so that, even without resorting to the principles in Li Defan, Judge Chan could have concluded that the Applicant was guilty and convicted her accordingly.", "zh-HK": "本庭不需要討論Li Defan 所訂立的原則是否適用於本案。原因是本庭認為基於本案的情況，即案件具有充分的理據來支持陳法官不接納申請人與第二被告人在警誡供詞所作出的辯白及 DW1 的証供的裁決、控方案情並不存在合理疑點及申請人選擇不就一些在她認知範圍以內如她聲稱她替 PW1 支付款項的來源或資金流向的事情作出解釋，就算陳法官不依賴 Li Defan 的原則，本案其實已具有充分的証據讓他對申請人作出定罪的推斷及裁決。" } }, { "doc_id": 48, "seg_id": 66, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 48, "seg_id": 67, "translation": { "en": "For the above reasons, the application is dismissed.", "zh-HK": "基於上述理由，本庭駁回申請。" } }, { "doc_id": 48, "seg_id": 68, "translation": { "en": "Ms Mary Sin, Senior Assistant Director of Public Prosecutions, for the Respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員冼佩霞代表。" } }, { "doc_id": 48, "seg_id": 69, "translation": { "en": "Mr Wong Man Kit, SC and Mr Kevin Chan, instructed by Tang, Lai & Leung, for the Applicant.", "zh-HK": "申請人：由梁鍚鐮、黃國基、吳志彬律師行轉聘黃敏杰資深大律師及陳世傑大律師代表。" } }, { "doc_id": 49, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the Reasons for Judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 49, "seg_id": 2, "translation": { "en": "Appeal against Sentence", "zh-HK": "刑期上訴" } }, { "doc_id": 49, "seg_id": 3, "translation": { "en": "The Applicant faced 5 charges, three of which (Charges 1, 2 and 4) were of unlawful sexual intercourse with a girl under 16, contrary to section 124(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong (“the Ordinance”); and the remaining two (Charges 3 and 5) were of buggery with a girl under 21, contrary to section 118D of the Ordinance.", "zh-HK": "申請人被控五項控罪，其中三項是與年齡在 16 歲以下的女童非法性交，違反香港法例第 200 章《刑事罪行條例》(《條例》)第 124(1) 條（即控罪一、二及四）；另外兩項控罪是與 21 歲以下的女童作出肛交，違反《條例》第 118D 條（即控罪三及五）。" } }, { "doc_id": 49, "seg_id": 4, "translation": { "en": "The Applicant was convicted on all the charges after trial before Deputy High Court Judge Poon and jury and was sentenced to 4 years’ imprisonment. Deputy Judge Poon sentenced him to 18 months’ imprisonment for each of Charges 1, 2 and 4 (the unlawful sexual intercourse charges) and 3 years’ imprisonment for each of Charges 3 and 5 (the unlawful buggery charges). The sentences for Charges 3 and 5 were to run concurrently whereas 4 months of the sentence for each of Charges 1, 2 and 4 were to run consecutively to the other sentences, making a total of 4 years’ imprisonment. The Applicant now applies for leave to appeal against sentence out of time.", "zh-HK": "案件經高等法院原訟法庭暫委法官潘敏琦及陪審團審理後，申請人被裁定罪名成立及判處入獄四年。潘敏琦法官就控罪一、二及四（即非法性交罪）各判申請人入獄 18 個月，而控罪三及五（即非法肛交罪），則各判入獄三年。控罪三及五需同期執行，而控罪一、二及四的每項刑期中的四個月與其他控罪分期執行，總刑期為四年監禁。申請人就刑期提出逾期上訴許可申請。" } }, { "doc_id": 49, "seg_id": 5, "translation": { "en": "The Facts", "zh-HK": "案情" } }, { "doc_id": 49, "seg_id": 6, "translation": { "en": "At the material times, the victim involved in the 5 charges was a girl aged 15 and the Applicant was aged 19. On 18 December 2003, they had their first sexual intercourse (Charge 1). Thereafter, between 1 March and 30 April 2004, they had sexual intercourse once and anal intercourse once (Charges 2 and 3). Later, on 26 July 2004, they had sexual intercourse once and anal intercourse once (Charges 4 and 5). They had their first sexual intercourse 4 days after their acquaintance.", "zh-HK": "涉及五項控罪的受害人在事發時是一名 15 歲的女童。申請人當時 19 歲。兩人於 2003 年 12 月 18 日首次發生性行為（即控罪一）。之後，在 2004 年 3 月 1 日至 4 月 30 日期間分別進行了一次性交及一次肛交（即控罪二及控罪三），其後在 2004 年 7 月 26 日進行了一次性交及一次肛交（即控罪四及控罪五）。兩人於相識四天後發生了第一次性行為。" } }, { "doc_id": 49, "seg_id": 7, "translation": { "en": "The Ordinance", "zh-HK": "《條例》" } }, { "doc_id": 49, "seg_id": 8, "translation": { "en": "Section 118D of the Ordinance states that: “A man who commits buggery with a girl under the age of 21 shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.”", "zh-HK": "《條例》第 118D 條說：「任何男子與年齡在 21 歲以下的女童作出肛交，即屬犯罪，一經循公訴程序定罪，可處終身監禁」。" } }, { "doc_id": 49, "seg_id": 9, "translation": { "en": "Section 124(1) of the Ordinance states that: “… a man who has unlawful sexual intercourse with a girl under the age of 16 shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 5 years”.", "zh-HK": "《條例》第 124(1) 條說：「任何男子與一名年齡在 16 歲以下的女童非法性交，即屬犯罪，一經循公訴程序定罪，可處監禁五年」。" } }, { "doc_id": 49, "seg_id": 10, "translation": { "en": "The Applicant’s Arguments", "zh-HK": "申請人的論點" } }, { "doc_id": 49, "seg_id": 11, "translation": { "en": "Mr. David Ma, Counsel for the Applicant on assignment by the Free Legal Service Scheme of the Hong Kong Bar Association, submits that according to Leung v. Secretary for Justice [2006] 4 HKLRD 211, anal intercourse between homosexual men should be regarded as equivalent to vaginal intercourse between heterosexuals. On this basis, anal intercourse between a man and a woman was also a form of sexual intercourse between them, and therefore, the maximum penalty of life imprisonment prescribed by section 118D for the offence of buggery is grossly disproportional to the one of 5 years’ imprisonment prescribed by section 124(1) for the offence of unlawful sexual intercourse.", "zh-HK": "申請人的代表律師是香港大律師公會，法律義助服務計劃的馬維騉大律師。馬大律師指根據 Leung v. Secretary for Justice (梁訴律政司司長) [2006] 4 HKLRD 211 一案，男同性戀者的肛交性行為應被視作等同於異性戀者的陰道性交行為。基於這論點，男女的肛交行為亦是男女性交的一種，故此第 118D 條判處進行肛交者最高刑罰為終身監禁及 124(1) 條判處非法進行性行者最高刑罰為五年監禁是極之不合比例的。" } }, { "doc_id": 49, "seg_id": 12, "translation": { "en": "However, Mr. Ma does not intend to challenge the constitutionality of the penalty under section 118D. He only asks that the sentence imposed for the offence of buggery be equivalent to that imposed for unlawful sexual intercourse. He submits that Deputy Judge Poon erred in saying that the section 118D offence was far more serious than the section 124(1) offence.", "zh-HK": "但馬大律師無意質疑第 118D 條內的罰則是否違憲，他只是希望法庭判處肛交的刑罰需等同於非法性交。他說潘法官指第 118D 條的嚴重性遠超過第 124(1) 條是錯誤的。" } }, { "doc_id": 49, "seg_id": 13, "translation": { "en": "Leung v. Secretary for Justice", "zh-HK": "梁訴律政司司長" } }, { "doc_id": 49, "seg_id": 14, "translation": { "en": "In Leung v. Secretary for Justice, the issue before the Court of Appeal (Hon Ma CJHC, Woo VP and Tang JA (as he then was)) was whether section 118C of the Ordinance was contrary to the Basic Law and the provisions on equality in the Hong Kong Bill of Rights.", "zh-HK": "在梁訴律政司司長 一案，上訴法庭（高等法院馬道立首席法官，胡國興副庭長和鄧國禎上訴法庭法官（當時官階））所處理的議題是有關《條例》第 118C 條是否與《基本法》及《香港人權法》內的平等條例有所抵觸。" } }, { "doc_id": 49, "seg_id": 15, "translation": { "en": "Section 118C provides that:", "zh-HK": "118C 條說：" } }, { "doc_id": 49, "seg_id": 16, "translation": { "en": "A man who ―", "zh-HK": "「任何男子 ─" } }, { "doc_id": 49, "seg_id": 17, "translation": { "en": "與年紀在 21 歲以下的男子作出肛交；或\t(a) \tcommits buggery with a man under the age of 21; or", "zh-HK": "(a)" } }, { "doc_id": 49, "seg_id": 18, "translation": { "en": "年齡在 21 歲以下，而與另一名男子作出肛交，\t(b) \tbeing under the age of 21 commits buggery with another man,", "zh-HK": "(b) " } }, { "doc_id": 49, "seg_id": 19, "translation": { "en": "shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.", "zh-HK": "即屬犯罪，一經循公訴程序定罪，可處終身監禁。」" } }, { "doc_id": 49, "seg_id": 20, "translation": { "en": "The Court of Appeal held that section 118C was discriminatory against homosexual men. The Court pointed out that for heterosexuals, the form of sexual intercourse open to them was “vaginal intercourse”, but the only form of sexual intercourse available to homosexual men was anal intercourse. At law, anal intercourse was a form of sexual intercourse, and therefore section 118C, which rendered anal intercourse between homosexual men an offence, was discriminatory against those people.", "zh-HK": "上訴法庭裁定第 118C 條是歧視男同性戀者。上訴法庭指雙性戀者的性交方法是「陰道性交」，但男同性戀者就只有肛交這種性交方法。在法律上，肛交亦是性交的一種，所以第 118C 條針對男同性戀者的肛交性行為是一條歧視男同性戀者的條例。" } }, { "doc_id": 49, "seg_id": 21, "translation": { "en": "Discussion", "zh-HK": "本庭的意見" } }, { "doc_id": 49, "seg_id": 22, "translation": { "en": "Although the aforesaid case dealt with the issue of anal intercourse between homosexual men, the Court of Appeal did point out that anal intercourse at law defined as a form of sexual intercourse, and this definition can also apply to anal intercourse between a man and a woman. The cases cited in Leung v. Secretary for Justice show that the law supports rather than rejects such an interpretation: see paragraph 47 of the judgment therein.", "zh-HK": "雖然上述案件涉及的是男同性戀者肛交的議題，但根據上訴法庭的裁決，在法律定義上肛交亦是性交行為的一種，這定義亦適用於男女肛交的性行為。從梁訴律政司司長 一案所援引的案例可見，法律不單沒有否定這樣的闡釋，反而是支持有關的闡釋，見：梁訴律政司司長 第 47 段。" } }, { "doc_id": 49, "seg_id": 23, "translation": { "en": "The common law system is a dynamic legal system, characterized by its ability to adapt to changing circumstances and its flexibility in interpreting established legal principles so that they can apply to the actual situation in question. Even if the maximum penalty prescribed by the Ordinance for a certain form of sexual intercourse is higher than that for another form of sexual intercourse, as the current legal definition of sexual intercourse encompasses various forms of intercourse, the court should not increase the sentence merely because the offence in question is buggery. The court should determine an appropriate sentence in light of the facts of the particular case and, in the process, take into account factors such as: whether there is a wide age gap between the defendant and the victim; whether the defendant is in a position to control the victim’s mind or direct the victim in her acts, e.g. being her employer, teacher or relative; whether the defendant has exerted an intangible influence on the victim, thereby obtaining her consent to have anal intercourse with him; and whether the defendant inflicted violence on the victim or made her feel unwell or hurt during the anal intercourse.", "zh-HK": "普通法是一個具生命力的法律體制，特點是順應時勢演變，它靈話地闡釋固有的法律，讓它適用於實際的環境。就算《條例》將某種性交行為的最高刑罰定得高於另一種性交行為，但由於現時法律對於性交的闡釋是包括不同形式的性行為，所以法庭在量刑時也不應該單單因被告人所干犯的罪行是肛交而將刑期調高的。法庭是應該視乎案情而作出適當的量刑，所要考慮的因素包括被告人與受害人的年齡是否相差很遠；被告是否屬於可控制受害人思想或可指揮受害人做事的人士如僱主、師長或親屬等；被告人有否利用無形的影響力令受害人就範而同意與其進行肛交；在進行肛交性行為時有否使用暴力或令受害人不適或受創。" } }, { "doc_id": 49, "seg_id": 24, "translation": { "en": "We consider the sentence of 18 months’ imprisonment imposed by Deputy Judge Poon on the Applicant for the offence of unlawful sexual intercourse to be appropriate. Regarding the sentence for the offence of buggery, we are of the view that none of the factors mentioned in paragraph 13 (sic) above existed in the present case. The present case does not involve the victim being seduced by an older man into having sexual intercourse. The Applicant and the victim were of a similar age, and the victim had a lot of boyfriends before her acquaintance with the Applicant. In these circumstances, the sentence for the offence of buggery can in our view be the same as that for unlawful sexual intercourse, i.e. 18 months’ imprisonment. It has to be pointed out that the judgment of Leung v. Secretary for Justice was handed down after Deputy Judge Poon imposed the sentence in question.", "zh-HK": "本庭認為潘法官就非法性交罪名判處申請人入獄 18 個月的刑期是適當的。至於肛交罪的刑期，本庭認為本案沒有如上文第 13 段的情況。本案不涉及受害人被年長男子引誘而進行性行為的情況。申請人與女童的年紀相約。女童在認識申請人之前已結交過很多男朋友。本庭認為在這情況下法庭是可以就肛交的控罪判處與非法性交一樣的刑期——18 個月監禁。本庭需要指出梁訴律政司司長 的判決是在潘法官作出量刑之後才頒發的。" } }, { "doc_id": 49, "seg_id": 25, "translation": { "en": "Pursuant to sections 124(1) and 118D of the Ordinance, even where a girl under 16 consents to have sexual intercourse or a girl under 21 consents to have buggery, the person who has sexual intercourse with her still commits the relevant offence. The objective of section 124(1) is to protect underage girls as they are only physically mature but not mentally so. The law has to protect these girls who do not know how to protect themselves. As for section 118D, leaving aside the dispute arising from the difference between the age of 21 as prescribed by the section and the age of 18 being the statutory age of majority, those who enjoy protection under the Ordinance certainly include young girls who do not know how to protect themselves.", "zh-HK": "根據《條例》第 124(1) 及118D 條，就算一名年齡不足 16 歲的女童同意性交或者一名未滿 21 歲的女性同意進行肛交，但那與她進行性行為的人士仍是觸犯了有關罪行。第 124(1) 條的目的是保護未成年的女性，因為她們雖然身體成熟，但心智卻未成熟，法例須保護這些不懂得保護自己的女童。至於第 118D 條，姑不論其所制定21 歲的規限和現時法定成年歲數為 18 歲所引起的爭議，但受到這條例所保護的人士肯定是包括一些不懂得保護自己的年幼女童。" } }, { "doc_id": 49, "seg_id": 26, "translation": { "en": "The victim in the present case was only 15 at the material times. Although she did not mind having sexual intercourse with the Applicant, she certainly had to be protected by the law. The two of them had also done other acts, for example, the Applicant had dripped some melted wax onto the girl’s body and inserted a hard object into her anus. Although there is no evidence to show that these acts were forced upon the girl or had injured her, we must adhere to the principle that underage girls should be protected. In light of this, and taking into account the Applicant’s clear record, we hold that the total sentence should be 2½ years’ imprisonment.", "zh-HK": "本案受害人在案發時只有 15 歲，儘管她不介意與申請人進行性行為，她肯定是需要受到法律的保護。雙方亦有進行過其他的活動，如：申請人將燒熔了的蠟滴在女童的身體上及用硬物插入女童的肛門裏，雖然無任何証據顯示有關的行為是強加於女童身上或令女童受傷，本庭本着未成年女童應該受到保護的原則及考慮到申請人之前沒有犯罪記錄，裁定總刑期應為兩年半監禁。" } }, { "doc_id": 49, "seg_id": 27, "translation": { "en": "We grant leave to the Applicant to appeal against sentence out of time and, treating the hearing of the application as the appeal, we allow the appeal and vary the total sentence to 2½ years’ imprisonment with the individual sentences varied as follows: the sentence for each charge shall be 18 months’ imprisonment. The sentences for Charges 1, 2 and 4 are to run concurrently. The sentences for Charges 3 and 5 are also to run concurrently, but 12 months thereof are to be served consecutively to the 18 months for Charges 1, 2 and 4, making a total term of 2½ years.", "zh-HK": "本庭批准申請人就刑期提出的逾期上訴許可申請，視申請為正式上訴。本庭判上訴得直及將總刑期更改為兩年半監禁，個別刑期更改如下：每項控罪刑期為 18 個月監禁，第一、二及四項控罪的刑期同期執行，第三及五項控罪的刑期亦同期執行，但其中 12 個月要與第一、二及四項控罪中的 18 個月分期執行，合共兩年半監禁。" } }, { "doc_id": 49, "seg_id": 28, "translation": { "en": "We consider it necessary for the Secretary for Justice to conduct a review on the current discrepancy between section 118D and section 124(1) as soon as possible.", "zh-HK": "本庭認為律政司司長有需要盡快檢討第 118D 與第 124(1) 條現存在的分歧。" } }, { "doc_id": 49, "seg_id": 29, "translation": { "en": "：由律政司何詠光高級政府律師代表。\tMr. Paul Ho, Senior Government Counsel, for the Respondent", "zh-HK": "答辯人" } }, { "doc_id": 49, "seg_id": 30, "translation": { "en": "：由香港大律師公會法律義助服務計劃委派大律師馬維騉代表。\tMr. David Ma, assigned by the Free Legal Service Scheme of the Hong Kong Bar Association, for the Applicant", "zh-HK": "申請人" } }, { "doc_id": 50, "seg_id": 1, "translation": { "en": "Hon Yeung JA:", "zh-HK": "上訴法庭法官楊振權：" } }, { "doc_id": 50, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 50, "seg_id": 3, "translation": { "en": "On 16 February 2008, the appellant Cheng Ho Chow attended a Spring Festival banquet held by his company in a restaurant at Lei Yue Mun. The banquet finished at about 10.30 pm. Then, the appellant picked up his light goods vehicle at an open carpark nearby and drove away with a colleague Miss Kan Yuet Ming on board.", "zh-HK": "2008年2月16日，上訴人鄭河周參加公司在鯉魚門一酒樓舉行的春茗。晚宴約在10時半結束後上訴人在附近的露天停車場取回他的小型貨車，並接載一名同事簡月明小姐離開。" } }, { "doc_id": 50, "seg_id": 4, "translation": { "en": "When the light goods vehicle driven by the appellant was moving along the westbound carriageway of Cha Kwo Ling Road towards Laguna City, it suddenly rammed into a medium goods vehicle parked on the first lane. The westbound carriageway of Cha Kwo Ling Road at that area slightly curved to the right and there were two traffic lanes on the road surface. The result of the accident was that Miss Kan died from serious injuries and the appellant himself was severely injured.", "zh-HK": "當上訴人駕駛的小型貨車沿茶果嶺道西行線向麗港城方向前進時，突然撞向一輛停泊在第一線的中型貨車。該段茶果嶺道西行線輕微右彎，路面有兩條行車線。意外導致簡小姐傷重死亡，而上訴人亦身受重傷。" } }, { "doc_id": 50, "seg_id": 5, "translation": { "en": "The accident was obviously caused by the appellant’s drink driving. Police investigation revealed that the appellant did not brake at all prior to the impact. This showed that before the collision, the appellant failed to notice there was a vehicle parked on the roadside.", "zh-HK": "意外明顯是因上訴人醉酒駕駛引發。警方調查證明兩車相撞前，上訴人完全沒有剎車, 顯示在撞車前，上訴人不意會有車停泊在路邊。" } }, { "doc_id": 50, "seg_id": 6, "translation": { "en": "People who sat with the appellant at the same table during the banquet said that the appellant had consumed considerable amount of whisky and red wine in the course of the banquet. A security guard of the open carpark at Lei Yue Mun described that when the appellant picked up his light goods vehicle at about 10.30 on the night of the accident, his face was red all over and that he walked unsteadily.", "zh-HK": "晚宴時和上訴人同桌的人士表示，在晚宴期間，上訴人飲用過份量不少的威士忌和紅酒。鯉魚門露天停車場的保安員亦表示上訴人在事發晚上約10時30分取回其小型貨車時，滿面通紅，步履不穩。" } }, { "doc_id": 50, "seg_id": 7, "translation": { "en": "The above accident led to the prosecution against the appellant for one count of dangerous driving causing death. He pleaded not guilty and was tried before Deputy District Judge W. C. Li.", "zh-HK": "上述事件導致上訴人被控一項危險駕駛引致他人死亡罪。上訴人否認控罪，案件在區域法院暫委法官李唯治審理。" } }, { "doc_id": 50, "seg_id": 8, "translation": { "en": "On 24 February 2009, Deputy Judge Li convicted the appellant and on 6 March 2009 he sentenced the appellant to 2 year’s imprisonment and disqualified him from driving and from holding a driving licence for 4 years. Deputy Judge Li used 3 years as the starting point and then reduced the term by 1 year to 2 years on account of the appellant’s serious injuries and the various kinds of inconveniences he suffered as a result of the injuries.", "zh-HK": "2009年2月24日，李法官裁定上訴人罪名成立，並在2009年3月6日判上訴人入獄兩年，及停牌4年。李法官以3年為量刑基準，並因上訴人的嚴重傷勢和傷勢引發之各種不便，將刑期扣減1年至2年。" } }, { "doc_id": 50, "seg_id": 9, "translation": { "en": "On 31 March 2009, the appellant applied for leave to appeal against sentence. Leave was granted on 25 June 2009. In the meantime, the appellant was allowed bail pending appeal on 7 May 2009.", "zh-HK": "上訴人不服判刑，在2009年3月31日提出上訴許可申請，該申請在2009年6月25日獲准。其間，上訴人在2009年5月7日獲准保釋等候上訴。" } }, { "doc_id": 50, "seg_id": 10, "translation": { "en": "Ground of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 50, "seg_id": 11, "translation": { "en": "The appellant relied solely on humanitarian grounds to plead for reduction of his sentence. He said that the accident resulted in paralysis of his whole body and loss of the ability to take care of himself. He said that he was not able to change clothes or take a bath by his own effort, and that he was not even able to urinate or defecate without assistance. He also complained that his body was wasting away. He pleaded for suspended sentence so that he could have the opportunity to, with the assistance of his family members, receive sufficient physiotherapy to prevent further deterioration of his physical condition.", "zh-HK": "上訴人單是以人道理由要求輕判。上訴人指出意外導致自己全身麻痺，喪失了自我照顧能力。上訴人表示自己不能寬衣，不能洗澡，大小二便都需要人協助。上訴人更表示其身體有萎縮情況出現。他希望能獲緩刑，令他有機會在家人協助下接受足夠物理治療，以免身體機能每況逾下。" } }, { "doc_id": 50, "seg_id": 12, "translation": { "en": "The appellant stressed that when he was in jail, although he received assistance from other prisoners, some of them were not altogether happy to help him to deal with things that might cause disgust, and for this reason some intentionally or unintentionally did harm to him. The appellant emphasized that when he was serving his sentence in prison, his physical condition worsened significantly and the physiotherapy provided to him was not adequate. The hardship he suffered was thus exacerbated.", "zh-HK": "上訴人強調在身陷囹圄期間，雖然有其他囚犯給予他協助，但部份囚犯並非十分樂意協助他處理一些厭惡性的工作，更因此有意無意對他做成無謂傷害。上訴人強調在監獄服刑期間，身體狀況明顯變壞而所獲之物理治療亦不足夠，加深他面對的困苦。" } }, { "doc_id": 50, "seg_id": 13, "translation": { "en": "The undisputed medical reports show that the appellant’s spine was injured in the accident. Consequently he is suffering from tetraplegia and requires special treatment for spinal injuries.", "zh-HK": "無爭議的醫療報告顯示意外令上訴人脊椎骨受創，導致他四肢麻痺而需要特殊的脊椎創傷治療。" } }, { "doc_id": 50, "seg_id": 14, "translation": { "en": "In the report dated 3 March 2009, Doctor Ho, who has all along been responsible for treating the appellant, stated that the appellant’s upper limb power was impaired because of the accident, that he could manage to hold a spoon only with difficulty, and that he needed to be helped in order to eat.", "zh-HK": "在日期為2009年3月3日的報告，一直負責治療上訴人的何醫生指出意外令上訴人上肢力量變弱，只能勉強握緊匙，故需要他人協助才能進食。" } }, { "doc_id": 50, "seg_id": 15, "translation": { "en": "Doctor Ho specially pointed out that owing to the constraints of the Correctional Services Department in the training and treatment of people suffering from tetraplegia, imprisonment would cause the function of the appellant’s four limbs to deteriorate further. Therefore, his chance of returning to a normal life would decrease. Doctor Ho was of the view that what the appellant needed was continuous physiotherapy at regular intervals carried out by physiotherapists and his family members. Without such treatment, his self-care ability in future would be substantially impaired.", "zh-HK": "何醫生特別指出懲教署對四肢麻人士的訓練和治療有限制，故監禁會令上訴人四肢活動能力進一步惡化，而其能較正常生活的機會更會減低。何醫生認為上訴人需要由物理治療師及家人經常施以定期物理治療，否則他將來的自理能力會受很大的影響。" } }, { "doc_id": 50, "seg_id": 16, "translation": { "en": "At the request of the court, the Correctional Services Department made a further report on the rehabilitation progress of the appellant and the support provided by the Correctional Services Department to him. The report said that when the appellant was in custody, he had been provided with sufficient care and treatment, and that his progress was satisfactory. According to the report, when the appellant was serving his sentence, he was able to stand and could walk slowly when being helped. Although the recovery of the appellant’s upper limbs was fair, he could feed himself by using a mobile arm support.", "zh-HK": "應法庭的要求，懲教署就上訴人的康復進度及懲教署提供給他的支援再作報告。報告指上訴人在囚期間獲得足夠的照顧及康復治療而其進展情況亦是理想的。報告顯示上訴人在服刑期間，能站立及在人扶持下慢行。雖然上訴人的上肢康服情況普通，但他能在活動手臂輔助下自己進食。" } }, { "doc_id": 50, "seg_id": 17, "translation": { "en": "Respondent’s position", "zh-HK": "答辯人立場" } }, { "doc_id": 50, "seg_id": 18, "translation": { "en": "Senior Public Prosecutor Ms. Teresa Kam, for the respondent, argued that aggravating factors existed in this case in that the appellant had consumed considerable amount of alcoholic drinks over a long period of time before he drove off. She placed emphasis on the fact that before the collision the appellant had probably closed his eyes or even had fallen asleep. She emphasized that the physical condition and mental condition of the appellant were such that he was not suitable to drive, but he still proceeded to drive regardless, thus causing the accident.", "zh-HK": "代表答辯人的高級檢控官金玉女士指本案具備加刑因素，原因是上訴人駕駛前，長時間飲用了份量不少的酒精飲品。她強調，撞車前上訴人應是閉了眼睛，甚至睡着了。她亦強調上訴人的身體及精神狀況都顯示他不適宜駕車，但他仍強行駕駛，導致意外。" } }, { "doc_id": 50, "seg_id": 19, "translation": { "en": "Ms. Kam submitted that a defendant who suffered injuries in the course of committing crime had only himself to blame. However, she agreed that according to R v. Mallone [1996] Cr App R(S) 221, the fact that the defendant was himself severely injured in the traffic accident could be a mitigating factor. But she stressed that the trial judge had already substantially reduced a 3 years’ term of imprisonment to 2 years on account of the fact that the appellant was severely injured.", "zh-HK": "金女士指若被告人因犯罪引致身體受傷害，屬咎由自取，但亦同意根據R v Mallone [1996] Cr App R(S) 221案，如被告人在車禍中有受重傷，可以是減刑因素。金女士強調原審法官已因上訴人受重傷而將三年的判刑大幅度減到二年。" } }, { "doc_id": 50, "seg_id": 20, "translation": { "en": "Ms. Kam submitted that if the appellant had to continue to serve his sentence, he would most likely stay in Stanley Prison, where he could receive professional medical treatment and follow-up care and attention provided by the prison hospital; and that if necessary, arrangements could be made for him to go out to receive treatment at other hospitals or rehabilitation centres. Ms. Kam further submitted that treatment could be provided as frequently as once a day and that rehabilitation equipment, if it was practicable to do so, could be sent to the prison hospital to be used by the appellant.", "zh-HK": "金女士指如上訴人仍需服刑，他很大可能會繼續在赤柱監獄服刑，而赤柱監獄中除了有監獄醫院為他提供專業的醫學治療及跟進外，在有需要時，亦會安排他外出到其他醫院或復康中心進行治療。金女士更指有關治療可以頻密到每天一次，而復康器械在可行的情況下可以運送到監獄醫院，供上訴人使用。" } }, { "doc_id": 50, "seg_id": 21, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 50, "seg_id": 22, "translation": { "en": "The sentencing of this appellant has given me much worries and concerns. Drink driving is a very serious crime. The reason is that a vehicle moving in high speed can be a lethal weapon with horrific power of destruction. When a vehicle is in the hands of a driver who is under the influence of alcohol and cannot properly control the vehicle, severe damage to life and property can be the result and therefore it is a danger to the public. Generally, the sentence for dangerous driving should be immediate custodial sentence in order to be a deterrent (see Secretary for Justice v Fong Chai Man [2008] 3 HKLRD 493), although in that case the Court of Appeal declined to increase the starting point of 1 year because the incident arose from a mere error of judgment.", "zh-HK": "處理上訴人的判刑，對本席造成極大的憂慮及困擾。醉酒駕駛屬極為嚴重罪行，原因是高速行駛車輛可以是極具殺傷力的兇器。當車輛在一名醉酒故不能適當控制車輛的駕駛者手上時，可能會導致極大的財物及生命損害，對公眾安全造成危險。危險駕駛罪行一般需處以即時監禁，以作阻嚇作用（見律政司司長 訴 房濟民 [2008] 3 HKLRD 493案），雖然在該案，上訴法庭以意外純粹出於一個錯誤的判斷而拒絕將一年之量刑基準上調。" } }, { "doc_id": 50, "seg_id": 23, "translation": { "en": "In Secretary for Justice v Poon Wing Kay and Liu Chun Pong (CAAR 2/2006 and CACC 536/2005), Ma CJHC made it clear that in a particularly serious case of drink driving causing death, the maximum sentence laid down in the law at that time, namely 5 years’ imprisonment, ought to be imposed.", "zh-HK": "律政司司長 訴 潘永基及廖振邦案（CAAR 2/2006 及CACC 536/2005），高等法院首席法官馬道立表明，在特別嚴重的醉酒駕駛引致他人死亡的案件，法庭應處以當時法例所容許的最高5年判刑。" } }, { "doc_id": 50, "seg_id": 24, "translation": { "en": "Soon after the occurrence of this case, the Legislation Council of Hong Kong, because of the prevalence of drink driving and its potential serious consequences, increased the maximum sentence of drink driving causing death from 5 years’ imprisonment to 10 years’ imprisonment, so as to reflect the abhorrence felt by the public of this crime.", "zh-HK": "香港立法議會在本案案發後不久，更因醉酒駕駛普遍及其能導致的嚴重後果，將醉酒駕駛以致他人死亡罪行的最高判刑由5年增加至10年，以反映社會各界對該罪行的厭惡。" } }, { "doc_id": 50, "seg_id": 25, "translation": { "en": "Although this case is not the worst of its kind, there are aggravating factors. At the time of the offence, the appellant must have been completely drunk, otherwise when he was driving he would not have closed his eyes or even have fallen asleep. The appellant, knowing that his driving ability and skill would be substantially and adversely affected by his physical condition, still chose to drive. This court will certainly not overlook the fact that the victim lost her precious life as a result of the appellant’s irresponsible conduct.", "zh-HK": "本案雖然不屬同類案件最嚴重的一類，但亦有其加重罪責的因素。上訴人案發時，必然是酩酊大醉，否則他不會在駕駛途中閉上眼睛，甚至入睡。上訴人是明知其身體狀況會大大影響其駕駛能力及技術的情況下，仍然選擇駕駛。當然本庭不能忽視上訴人的不負責任行為導致有人喪失了寶貴的生命。" } }, { "doc_id": 50, "seg_id": 26, "translation": { "en": "On the other hand, the appellant was severely injured in the same accident and he needs to be taken care of in his daily life. This court has no doubt at all that the Correctional Services Department will make suitable arrangements regarding what the appellant needs. However, this court must not fail to notice that the appellant’s injuries were not only severe, they also deprived him of the ability to look after himself. Owing to tetraplegia, in particular the loss of strength in his upper limbs, the appellant cannot change clothes or take a bath by his own effort. He is not even able to urinate or defecate without assistance. Under these circumstances, incarceration will cause him immense and extraordinary hardship.", "zh-HK": "另一方面，上訴人在同一意外中亦身受重傷，需要他人照顧起居飲食。本庭絕不懷疑懲教署會就上訴人所需的醫療作出合適安排。但本庭不能忽視上訴人的傷勢不但嚴重，更導致他無力自理。由於四肢麻痺，特別是上肢無力，上訴人自己不能更換衣服，不能洗澡，而大小便亦要他人協助。在上述情況下，牢獄生活會對上訴人造成極大而不尋常的困苦。" } }, { "doc_id": 50, "seg_id": 27, "translation": { "en": "Even though the Correctional Services Department will make every endeavour to help individual prisoners to adapt to life in prison, the Department might not be able to provide tetraplegic prisoners, like the appellant, with all the facilities and support they need. To the appellant, every daily routine activity is a big challenge and struggle. The lavatory facilities of the Correctional Services Department are not designed to cater for the needs of people, like the appellant, who have this kind of disability. Just getting into bed and getting out of bed have already posed great difficulties for the appellant, and for this reason he could not go to toilet in the middle of the night and had to wet the bed. The appellant cannot wash or dress himself, have his meals, or go to stool without assistance provided by other people. The Correctional Services Department will surely do all they can to take care of the appellant, including giving instructions to other prisoners to take care of him. But to provide care to such kind of prisoners like the appellant may be a strain on the resources of the Correctional Services Department, and the services provided by them may not necessarily meet the appellant’s needs. As far as other prisoners are concerned, to take care of the appellant is unpleasant work, which they will not be happy to accept. When they are forced to do this work, they may harass the appellant, which is not something difficult to understand. The hardship and indignity which imprisonment will give to the appellant will be far greater than those given to the prisoners who are physically healthy and normal.", "zh-HK": "即使會為個別囚犯盡一切努力以協助他們適應監獄生活，懲教署不一定能向上訴人這類四肢麻痺的犯人提供所需之全部設備和援助。每日的例行公事，對上訴人而言已是極大的挑戰和搏鬥。懲教署的衛生間設施並非為上訴人這類傷殘人士而設。對上訴人而言，上牀、下牀已是極為困難之事，導致他半夜不能去廁所而引致尿牀。上訴人必需他人協助才能梳洗、進食及排便。雖然懲教署必會盡力照顧上訴人包括指示其他囚犯照顧上訴人。但照顧上訴人這類犯人可能對懲教署做成壓力而懲教署能提供的服務亦不一定能應付上訴人所需。對其他囚犯而言，服侍上訴人屬厭惡性工作，他們不會樂意接受。當他們被迫承擔該項工作時，他們對上訴人可能造成困擾亦是不難理解的。上訴人坐牢面對的困苦及喪失尊嚴遠較其他身體健康正常的囚犯為甚。" } }, { "doc_id": 50, "seg_id": 28, "translation": { "en": "Nor can I disregard the possibility that if the Correctional Services Department is not able to provide full-scale training and treatment to people suffering from tetraplegia, imprisonment would cause the tetraplegic condition of the appellant to worsen further, so that the chance of his living a normal life again would be much reduced.", "zh-HK": "本席亦不能忽視如懲教署不能對四肢麻痺的人士作出全面的訓練和治療，監禁會令上訴人四肢麻痺情況進一步惡化而其重過正常生活的機會亦會因此而大大降低。" } }, { "doc_id": 50, "seg_id": 29, "translation": { "en": "A doctor opined that the appellant needed continuous physiotherapy at regular intervals carried out by physiotherapists and his family members. If the appellant wants to have continuous physiotherapy provided by physiotherapists at regular intervals whilst he is in prison, that would be unrealistic. I agree with the doctor’s opinion that a more effective arrangement is to let the appellant’s family members take part in providing suitable treatment to the appellant.", "zh-HK": "有醫生認為上訴人需要由物理治療師及家人經常施以定期物理治療而上訴人要在監獄獲得物理治療師經常及定期性的物理治療是不切實際的。本席亦認同醫生的意見，較有效的安排應是由家人參與向上訴人提供適當治療。" } }, { "doc_id": 50, "seg_id": 30, "translation": { "en": "I have the duty to protect the interests of the public and to ensure that the public will not be harmed by drink driving and dangerous driving committed by irresponsible drivers, but I am also required to consider the impact and effect a punishment will produce on individuals. By individuals, I am not referring to the appellant only, but include his family members, especially his wife. During the appeal hearing, the appellant’s wife appeared in court with the appellant. The love and care which she showed towards the appellant have left an indelible impression on me. To put the appellant back to jail, whatever the length of the term, will put the appellant into extreme hardship and will cause his family, especially his wife, constant distress.", "zh-HK": "本席有責任維護公眾利益，確保市民大眾免受不負責任駕駛者的醉酒及危險駕駛等罪行的傷害。但本席亦需要將刑罰對個別人士的衝擊及影響考慮在內。本席所指的個別人士不單是指上訴人本人，亦包括其家人，特別是其妻子。上訴聆訊期間，上訴人妻子陪伴上訴人出席。她對上訴人表現的關愛，令人印象難忘。再關押上訴人，不論關押期的長短，都會對上訴人做成極度困苦，亦會令其家人，特別是他的妻子終日惶恐不安。" } }, { "doc_id": 50, "seg_id": 31, "translation": { "en": "I have asked myself many times the following questions: In the circumstances of this case, if the appellant is treated leniently, would it arouse a public outcry, saying that the court is indulgent towards drink driving and dangerous driving; would the efforts spent by the government on preventing the commission of drink driving and dangerous driving be compromised; and would people be emboldened to commit drink driving and dangerous driving? The answers I arrived at are all negative. On the contrary, my view is that to treat the appellant leniently will make the public aware that there is a benevolent side of the law, so that they will respect the law more and be more willing to obey the law.", "zh-HK": "本席曾多番自問，在本案的背景下，對上訴人法外施恩，會否導致公眾強烈不滿，指法庭縱容醉酒及危險駕駛罪行；會否影響政府為了阻嚇醉酒及危險駕駛所作的努力；及會否鼓勵醉酒及危險駕駛罪行。本席得出的答案都是否定的。反之，本席認為對上訴人法外施恩，會令公眾感受到法律有其仁慈一面，令公眾更尊重法律，倍加守法。" } }, { "doc_id": 50, "seg_id": 32, "translation": { "en": "After considering all the circumstances, I believe that the appellant has been taught an extremely severe lesson. He will not commit this crime again. In addition, he had been imprisoned for several months and therefore knew how hard life can be in prison. To him, this kind of punishment cannot be said to be light. I decide to be lenient to him by giving him a suspended sentence.", "zh-HK": "經考慮過整體情況，本席認為上訴人已得到極嚴厲的教訓。上訴人不會重犯，加上他已坐牢數月，令他知悉牢獄生涯的苦況。對他而言，刑罸亦屬不輕。本席決定法外施恩，作出緩刑的決定。" } }, { "doc_id": 50, "seg_id": 33, "translation": { "en": "I must say clearly that the decision to give the appellant suspended sentence is made because of the very special circumstances of this case and should not be treated as a precedent.", "zh-HK": "本席必需表明，緩刑的決定是在本案極為特殊情況下作出，不應視為先例。" } }, { "doc_id": 50, "seg_id": 34, "translation": { "en": "I allow the appeal. The sentence of 2 year’s imprisonment stands but shall be suspended for 2 years. The appellant does not have to serve the sentence immediately.", "zh-HK": "本席裁定上訴人上訴得直。其兩年判刑維持，但緩刑兩年，無需立刻執行。" } }, { "doc_id": 50, "seg_id": 35, "translation": { "en": "Hon Kwan JA:", "zh-HK": "上訴法庭法官關淑馨：" } }, { "doc_id": 50, "seg_id": 36, "translation": { "en": "Facts and sentence", "zh-HK": "案情與刑期" } }, { "doc_id": 50, "seg_id": 37, "translation": { "en": "On 16 February 2008, the appellant Cheng Ho Chow drove whilst under the influence of alcohol and a serious traffic accident ensued. The result was that the female passenger on board died from head injuries, whereas his cervical vertebrae were injured, resulting in incomplete tetraplegia. The appellant was charged with dangerous driving causing death. He pleaded not guilty.", "zh-HK": "2008年2月16日，上訴人鄭河周醉酒駕駛，發生嚴重車禍，導致車上女乘客頭部受傷死亡，他的頸部脊椎受損，引致不完全的四肢癱瘓。上訴人被控危險駕駛引致他人死亡，他否認控罪。" } }, { "doc_id": 50, "seg_id": 38, "translation": { "en": "On 24 February 2009, Deputy District Judge W. C. Li found him guilty after trial. On 6 March 2009, Deputy Judge Li sentenced him to 2 year’s imprisonment and disqualified him from driving and from holding a driving licence for 4 years. At the time of conviction the appellant was 45 years old. He was not a professional driver. He had 4 relatively minor criminal convictions and 2 violations of the traffic laws for which he was fined.", "zh-HK": "經審訊後，2009年2月24日，區域法院暫委法官李唯治裁定他罪名成立。2009年3月6日，李法官判他入獄兩年，吊銷駕駛執照4年。定罪時上訴人的年齡是45歲，他並非職業司機，有4項輕微的刑事記錄，和兩項觸犯交通法例罰款的記錄。" } }, { "doc_id": 50, "seg_id": 39, "translation": { "en": "At the time of the accident, a person who committed this offence was liable on conviction on indictment to imprisonment for 5 years. The Deputy Judge used 3 years as the starting point. He considered that the only mitigating factor was the appellant’s serious injuries. Having taken into account the medical reports, the Deputy Judge reduced the term to 2 years on the basis that when the appellant was imprisoned, he would suffer inconveniences in his rehabilitation and treatment.", "zh-HK": "案發時這控罪的最高刑罰，循公訴程序定罪是監禁5年。法官採取3年作為量刑起點，認為惟一的減刑因素，是上訴人的嚴重傷勢。考慮過醫生報告，基於上訴人在監獄服刑，對康復或治療的不便，法官把刑期減為兩年。" } }, { "doc_id": 50, "seg_id": 40, "translation": { "en": "On 31 March 2009, the appellant applied for leave to appeal against sentence. On 7 May 2009, he succeeded in obtaining bail pending appeal and was thereupon released from Stanley Prison. On 25 June 2009, the Court of Appeal granted him leave to appeal against sentence.", "zh-HK": "2009年3月31日，上訴人申請許可就刑罰上訴。2009年5月7日，他成功申請保釋等候上訴，隨即從赤柱監獄獲釋。2009年6月25日，上訴法庭批准他就刑罰提出上訴。" } }, { "doc_id": 50, "seg_id": 41, "translation": { "en": "So far, the appellant has served 2 months of his sentence in prison. He asked the court to suspend the remainder of the 2 years’ imprisonment. The sole ground he relied on was the humanitarian ground.", "zh-HK": "上訴人在監獄服刑，至今總共兩個月。他要求把兩年的餘下刑期緩刑。所持的惟一理由，是人道理由。" } }, { "doc_id": 50, "seg_id": 42, "translation": { "en": "Authorities about dangerous driving causing death", "zh-HK": "危險駕駛引致他人死亡的相關案例" } }, { "doc_id": 50, "seg_id": 43, "translation": { "en": "Recent cases in which the Court of Appeal dealt with sentencing concerning this offence include Secretary for Justice v. Poon Wing Kay and Liu Chun Pong [2007] 1 HKLRD 660; Secretary for Justice v. Fong Chai Man [2008] 3 HKLRD 493; HKSAR v. Au Yeung Kwok-kin CACC 21/2008; Secretary for Justice v. Yam Chun Keung CAAR 2/2008; and Secretary for Justice v. Lam Siu Tong and Wong Ton Fan [2009] 5 HKLRD 601. When the defendants of these cases were sentenced by the trial judges, for this offence a person was liable on conviction on indictment to 5 years’ imprisonment and on summary conviction to 2 years’ imprisonment. The law had not yet been amended.", "zh-HK": "就這控罪刑罰的相關案例，上訴法庭近期處理的案件有: 律政司司長 訴 潘永基及廖振邦 [2007] 1 HKLRD 660；律政司司長 訴 房濟民 [2008] 3 HKLRD 493；香港特別行政區 訴 歐陽國堅 CACC 21/2008; 律政司司長 訴 任振強 CAAR 2/2008; 和律政司司長 訴 林兆棠及黃敦凡 [2009] 5 HKLRD 601。這些案件在原審法庭判刑時，循公訴程序定罪最高刑罰是監禁5年，循簡易程序定罪最高刑罰是監禁兩年，法例當時尚未修改。" } }, { "doc_id": 50, "seg_id": 44, "translation": { "en": "In Poon Wing Kay (paragraph 10, p.667G – p.668G) the Court of Appeal adopted the guidelines laid down by the Court of Appeal of England in R v. Cooksley & Ors. [2003] 2 Cr App R 18. Chinese translation of these guidelines can be found in paragraph 12, on page 500 of Fong Chai Man. The guidelines are set out below:", "zh-HK": "在潘永基 案667頁G至668頁G 第10段，上訴法庭採納了英國上訴法庭在 R v. Cooksley & Ors. [2003] 2 Cr App R 18的指引，譯文見於房濟民 案500頁第12段，茲引述如下:" } }, { "doc_id": 50, "seg_id": 45, "translation": { "en": " 在大多數的危險駕駛個案中，犯罪者顯然知道自己危險駕駛及應當因此受罰[R v. Cooksley & Ors. 第45頁J（第11段）]。記着這一點是很重要的。因為在某些情況下，確實是不應該將違反交通法例的人視為真正刑事罪犯，但話雖如此，對於危險駕駛引致他人死亡等罪行的犯罪者，就無必要如此仁慈地看待他們了。\t“(1)\tIn most cases of dangerous driving, it will be obvious to the offender that his driving was dangerous and he therefore deserves to be punished accordingly: [R v. Cooksley & Ors. p.45 J (paragraph 11)]. This is important to bear in mind because, while it may be true in some instances not to treat violators of traffic laws as true criminals, nevertheless for offences such as dangerous driving causing death, the offender may not necessarily be seen in quite such a benevolent light.", "zh-HK": "“(1)" } }, { "doc_id": 50, "seg_id": 46, "translation": { "en": "(2)\tWhere death results from dangerous driving, it is obvious that grave distress will be caused to the family of the deceased: [R v. Cooksley & Ors. p.46A (paragraph 11). The impact on people’s lives ought to be taken into account when sentencing.", "zh-HK": "(2) 危險駕駛引致他人死亡，明顯會令死者的家人深感悲痛 [R v. Cooksley & Ors. 第46頁A （第11段）]。對別人一生造成的影響，在判刑時應予考慮。" } }, { "doc_id": 50, "seg_id": 47, "translation": { "en": "(3)\tIt is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving: [R v. Cooksley & Ors. p. 46C-E (paragraph 11)]. A motor vehicle, many may often forget, when not driven to requisite standards, can kill or maim. The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.", "zh-HK": "(3) 另一點重要的，就是法庭必須清楚傳達一項信息：危險駕駛的行為有時候可能帶來極嚴重的後果，亦因此在判處多宗涉及危險駕駛的個案時，便有需要記住阻嚇的效用 [R v. Cooksley & Ors.第 46頁C至E（第11段）]。很多人往往可能忘記，駕駛汽車如達不到規定的標準，是可以奪去或殘害生命的。道路交通法例及其他規則載有在法律上規定駕車人士須達致的標準，這是要確保所有可能接觸到汽車的人（不論是其他駕車人士、乘客或行人）安全，生命不受危害。" } }, { "doc_id": 50, "seg_id": 48, "translation": { "en": "(4)\tWhile a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor: [R v. Cooksley & Ors. p. 47B (paragraph 14)]). It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence. In some cases (such as in the present case), the fact that only some aggravating factors exist but not others may still bring the case into a very serious category.", "zh-HK": "(4) 儘管可以在清單上一一臚列加重刑罰和減輕刑罰的因素，但判刑的法庭還須審視整體情況及犯罪者的整體刑責。在評估罪案的整體嚴重性時，刑責往往是主要的因素[R v. Cooksley & Ors.第47頁B（第14段）]。這並不是說數一數有幾多項加重刑罰或減輕刑罰的因素，然後機械式地計出有關的刑罰。量刑不是這般精密地進行計算，法庭而是必須充分靈活地考慮整體情況，以定出適當的判刑。一些個案（就如本案一樣）即使只有某些加重刑罰因素，但其他加重刑罰因素則欠奉，仍可令該等個案歸入非常嚴重一類。" } }, { "doc_id": 50, "seg_id": 49, "translation": { "en": "(5)\tOne major factor to be considered as an aggravating factor justifying a heavy sentence is where a person has driven with selfish disregard for the safety of other road users or of his passengers (or, we would add, of pedestrians) or with a degree of recklessness: [R v. Cooksley & Ors. p. 46D-f (paragraph 12)].”", "zh-HK": "(5) 有一項主因，可視為支持重判的加重刑罰因素，即駕駛者自私地罔顧其他道路使用者或其車上乘客（或我們想補充的行人）的安全或在某程度上魯莽駕駛：[R v. Cooksley & Ors. 第 46頁D至F（第12段）]。”" } }, { "doc_id": 50, "seg_id": 50, "translation": { "en": "In Lam Siu Tong and Wong Ton Fan (paragraph 13, p.609-610), the Court of Appeal made the following additional observations:", "zh-HK": "在林兆棠及黃敦凡 案 609 至 610 頁第 13 段，上訴法庭又作了這樣的補充，譯文如下:" } }, { "doc_id": 50, "seg_id": 51, "translation": { "en": "“(1)\tAlmost invariably in mitigation for the offence of dangerous driving causing death, the sentencing court is provided with details going to the good character of the accused. The court is also usually informed of the deep remorse that is expressed. The present cases provided no exception.", "zh-HK": "“(1) 危險駕駛引致他人死亡的罪行，求情時都幾乎千篇一律地向判刑的法庭提供資料，顯示被告人品格良好。被告人又通常會向法庭表示，深感後悔。目前處理的案件也不例外。" } }, { "doc_id": 50, "seg_id": 52, "translation": { "en": "(2)\tAnd yet the one fact that must not be overlooked is that an innocent life has been taken away as a result of an act or omission that could and should have been avoided. Dangerous driving invariably involves the taking of a risk or risks whilst being in control of a potentially lethal machine. There is no acceptable excuse for dangerous driving; nothing can justify the loss of a life or lives consequent upon it. As Yeung JA remarked in HKSAR v. Au Yeung Kwok-kin (CACC 21/2008, 25 August 2008) the courts will not show leniency to any driver who has endangered the lives and safety of other road users.", "zh-HK": "(2) 可是有一點不能忽略的，就是駕駛者的行為或失誤，以致奪去無辜的性命，這都是可以和應該避免的。駕駛者操縱着一部潛在致命的機器，危險駕駛必然涉及風險。這行為是無可寬宥的; 生命因此喪失，任何情況下都不成理。正如上訴法庭法官楊振權在香港特別行政區 訴 歐陽國堅 所說 (CACC 21/2008，2008 年8月25日)，法庭是不會輕判任何危害其他道路使用者生命安全的司機。" } }, { "doc_id": 50, "seg_id": 53, "translation": { "en": "(3)\tIn these circumstances, good character and remorse may count very little. These certainly count very little, or not at all, for the family and all those connected with a victim who has died as a result of an act or omission that could entirely have been avoided. The serious view that society holds for offences such as dangerous driving causing death is reflected by the increase in the maximum sentence for this offence from 5 to 10 years’ imprisonment for convictions on indictment.", "zh-HK": "(3) 在這情況下，良好品格和悔意，可起的作用有限。對於因為駕駛者的行為或失誤而喪失性命的受害人，和與受害人有關連者，良好品格和悔意，只是些微的補贖，又或者根本不能算是補贖，皆因這樣的行為或失誤，是完全可以避免的。危險駕駛引致他人死亡，社會認為是嚴重的罪行，這正反映在最高刑罰的提高，這控罪的最高刑罰，循公訴程序定罪已由監禁5年增至10年。" } }, { "doc_id": 50, "seg_id": 54, "translation": { "en": "(4)\tThe Court must therefore be astute to bear in mind the above considerations when determining the appropriate sentence in any given case in the face of details provided to it about an accused and the remorse that is shown. This is not to say that remorse or good character are not relevant considerations in terms of sentencing – they must be – but in the context of the offence with which we are concerned, they must not be given undue prominence. Further, nothing of course detracts from the discount that ought to be given when a timely plea of guilty is entered.”", "zh-HK": "(4) 當被告人向法庭提供個人資料，又表示悔意，衡量適當的刑罰時，法庭須精明地記住上述的考慮。這並不是說量刑時，悔意或良好品格是毫不相干的，這些因素當然要考慮，但是在本庭目前處理的罪行，便不應過度的重視。再說，被告人如及早認罪，可獲減刑，這都是不變的。”" } }, { "doc_id": 50, "seg_id": 55, "translation": { "en": "The other cases referred to above, being only instances where the guiding principles were applied, need not be analysed one by one.", "zh-HK": "上文所述其他的案例，只是引用指導性原則的例子，毋需逐一分析。" } }, { "doc_id": 50, "seg_id": 56, "translation": { "en": "What is involved in this case is reckless conduct as reflected in the appellant’s driving after consuming alcohol. Paragraph (1), (2), (3) and (5) of the Poon Wing Kay guidelines are applicable. As stated in paragraph (4), in assessing the overall seriousness of the crime committed in this case, the appellant’s culpability is the dominant factor. One of the aggravating factors is that the appellant had driven with selfish disregard for the safety of other road users or of his passenger. Even if the appellant felt remorse and regret for what he had alone, that cannot compensate for the harm done to the deceased and her family and therefore the court will not attach much importance to that. He did not plead guilty and cannot be given the discount which could have been given had he pleaded guilty.", "zh-HK": "本案涉及酒後駕駛的魯莽行為，潘永基 案指引的第(1)、(2)、(3) 及 (5) 段都適用。評估本案罪行的整體嚴重性時，如指引第(4) 段所說，上訴人的刑責是主要的因素。其中一項加重刑罰的因素，是上訴人自私地罔顧，其他道路使用者或其車上乘客的安全。上訴人縱使對自己行為感到內疚和自責，都不足以彌補對死者和家屬造成的傷害，故此法庭是不會重視的。他沒有認罪，也得不到認罪的減刑。" } }, { "doc_id": 50, "seg_id": 57, "translation": { "en": "The trial judge is correct to use 3 years as the starting point.", "zh-HK": "原審法官以3年作為量刑起點，是正確的。" } }, { "doc_id": 50, "seg_id": 58, "translation": { "en": "Authorities about reduction of sentence on humanitarian ground", "zh-HK": "以人道理由要求減刑的相關案例" } }, { "doc_id": 50, "seg_id": 59, "translation": { "en": "The fact that the offender suffered serious injuries in the accident caused by his dangerous driving is a mitigating factor (R v. Cooksley & Ors., paragraph 22). The trial judge had referred to a similar English case R v. Mallone [1996] 1 Cr. App. R. (S.) 221. The defendant in that case drove under the influence of alcohol, with the result that 1 person was killed and 1 person was injured. He suffered serious injuries on many parts of his body including his face. He lost the sight of his right eye and the use of his right arm and right leg. Although the serious injuries of the defendant was caused by his own conduct, the Court of Appeal of England held that the sentencing court should have taken into account this matter and 5 years’ imprisonment was reduced to 4 years. Based on this authority, Deputy Judge Li reduced 3 years’ imprisonment to 2 years.", "zh-HK": "犯罪者因危險駕駛造成的意外嚴重受傷，是一個減刑的因素 (R v. Cooksley & Ors.，第22 段) 。原審法官參考了英國相若的案例，R v. Mallone [1996] 1 Cr. App. R. (S.) 221 ，該案的被告人醉酒駕駛導致一人死亡，一人受傷，他的身體多處受重傷，包括面部，他喪失右眼視力，右臂和右腿的活動能力。雖然被告人的嚴重傷勢，是自己的行為引致，英國上訴法庭認為量刑時應該考慮這點，把5 年監禁改為4年。基於這案例，李法官把3年的刑期，調低至兩年。" } }, { "doc_id": 50, "seg_id": 60, "translation": { "en": "The Senior Public Prosecutor referred to a number of Hong Kong cases on the question of whether the defendant’s ill health or his physical disabilities resulting from injuries received in the course of his criminal act can be a ground for reducing sentence. In Yip Kai Foon v. HKSAR (2000) 3 HKCFAR 31, the appellant had committed many serious crimes, including escape from prison. When he was resisting arrest he received a gunshot wound that turned him into a paraplegic. He was sentenced to a total of 36 years’ imprisonment. He pleaded for reduction of sentence on the ground that he had suffered serious injuries. The Court of Final Appeal dismissed his application. The following remarks were made by the Chief Justice from p.35F-G and p.35I-p.36C:", "zh-HK": "就被告人健康欠佳，或因犯罪受傷引致身體殘障，是否可作為減刑理由，高級檢控官也引述了一些香港的案例。在葉繼歡 訴 香港特別行政區 (2000) 3 HKCFAR 31，上訴人犯了多項嚴重罪行，包括越獄，拒捕時中槍致使半身癱瘓，被判入獄共36年，他以嚴重傷勢為理由要求減刑，終審法院拒絕了申請。首席法官在35頁 F 至 G及 35頁I至36頁C這樣說，譯文如下：" } }, { "doc_id": 50, "seg_id": 61, "translation": { "en": "“Under the guidelines and principles evolved by the courts, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity. …", "zh-HK": "“嚴重的罪行，是根據逐步演進的指引和原則量刑，醫療的理由，在極少的情況下，假如真有這樣的情況，方可構成減刑的理由。…" } }, { "doc_id": 50, "seg_id": 62, "translation": { "en": "In these cases, the defendant’s physical condition did not result from injuries received in the course of criminal acts. Where his condition did so result, the Court of Appeal held in R v Chak Shui Chung [1989] 2 HKLR 81 that as a general rule such injuries would not be a factor for consideration as regards the length of imprisonment to be imposed for those criminal acts. As Silke V-P observed at p.84G:", "zh-HK": "在這些案例，被告人的健康情況，並非因犯案時受傷引致。若然身體狀況由此引致，上訴法庭在 R v. Chak Shui Chung [1989] 2 HKLR 81 裁定，一般的原則，在量刑時這些傷害不在考慮之列。上訴法庭副庭長邵祺在84 頁G有這樣的看法:" } }, { "doc_id": 50, "seg_id": 63, "translation": { "en": "‘… In the majority of cases the injured person has brought his misfortune upon himself and it is the criminal act which attracts the punishment, a punishment not lessened by virtue of damage to the perpetrator of that act while in the course of it.", "zh-HK": "‘… 在大多數的案件，傷者的不幸是自己一手造成，他的刑事行為因此受到懲罰，懲罰不會因犯罪者犯案時對自己造成的傷害減輕。’" } }, { "doc_id": 50, "seg_id": 64, "translation": { "en": "But it was held that there are exceptions where the injuries are very serious. What the Court of Appeal was saying was that, exceptionally, very serious injuries, even where suffered in the course of criminal activity, can be taken into account to reduce the sentence. There is of course no question of ‘must be’. In deciding whether the sentence should be reduced for this reason, all the circumstances of the case would have to be considered. In Chak Shui Chung, the defendant lost both arms when dismantling bombs and had pleaded guilty to possession of explosive substances. The Court of Appeal, in deciding to reduce the sentence of imprisonment from 7 to 5 years, considered that in the circumstances of that case the loss of both arms was in itself both a deterrent to future criminal participation and a personal punishment of great severity.”", "zh-HK": "但有案件認為，非常嚴重的傷害，可以構成例外。上訴法庭其實是說，在罕有的情況下，非常嚴重的傷害，即使是犯案時造成，可以考慮作為減刑因素。當然這並非是‘必然’ 要考慮的。決定應否為此減刑時，案件所有的情況都需要考慮。在Chak Shui Chung 案，被告人拆除炸彈時失去雙臂，承認藏有爆炸性物質的控罪。上訴法庭把7年監禁改為5年，基於失去雙臂，在該案的情況，對將來犯案已具阻嚇，亦對犯罪者是極嚴厲的懲罰。”" } }, { "doc_id": 50, "seg_id": 65, "translation": { "en": "In HKSAR v. Tam Yuen Tong [2007] 1 HKLRD 894, McMahon J said at p.896 A-C as follows:", "zh-HK": "在HKSAR v. Tam Yuen Tong [2007] 1 HKLRD 894，高等法院原訟法庭法官麥明康在896頁A至C如是說，譯文如下：" } }, { "doc_id": 50, "seg_id": 66, "translation": { "en": "“… Ill health generally will not normally operate as a mitigating factor. That is because prison medical facilities are regarded as adequate to deal with prisoners’ physical complaints. As a matter of reality most prisoners receive medical attention in prison of an equal or better standard than they would otherwise receive. Accordingly the ill health, with the exception of perhaps very serious ill health, of an offender will not be a matter taken into account in mitigation: see R v Chan Kui Sheung [1996] 3 HKC 279 at 284 and R v Lo Chi Keung [1996] 3 HKC 155. Again, however, in exceptional circumstances and as an act of mercy rather than as a principle of mitigation, ill health may result in a reduction of sentence.”", "zh-HK": "“一般來說，健康不佳通常不會是減刑的因素，因為監獄的醫療設施，被視為足夠去處理有關囚犯身體的投訴。而事實上，大多的囚犯在獄中獲得的醫療照顧，比起他們原有的照料，是相等或較佳的。因此，健康不佳，除非可能是極嚴重的情況, 求情減刑時是不會考慮的：見 R v. Chan Kui Sheung [1996] 3 HKC 279的284頁和 R v. Lo Chi Keung [1996] 3 HKC 155。再者，在罕有的情況下和出於憐憫，並非是基於減刑的原則，健康不佳可達至減刑。”" } }, { "doc_id": 50, "seg_id": 67, "translation": { "en": "In HKSAR v. Tsang Wai-kei, CACC 452/2002, Yeung JA expressed the following views in paragraph 18:", "zh-HK": "在HKSAR v. Tsang Wai-kei, CACC 452/2002，第18 段，上訴法庭法官楊振權有這樣的意見，譯文如下：" } }, { "doc_id": 50, "seg_id": 68, "translation": { "en": "“The court must on the other hand keep a proper balance between the public interest and the regard for the exceptional hardship suffered by an accused. In offences of extreme gravity, public interest must prevail.”", "zh-HK": "“另一方面，法院應在公眾利益，和被告人異常的苦況，取得適當的平衡。在極嚴重的罪行，應以公眾利益為重。”" } }, { "doc_id": 50, "seg_id": 69, "translation": { "en": "I have also referred to a recent case Grenfell v. R [2009] NSWCCA 162 of the Court of Criminal Appeal of New South Wales, Australia. In that case, the appellant was 77 years old. He pleaded guilty to crimes relating to fraud and was sentenced to 2 years and 8 months’ imprisonment. He was suffering from a near total loss of vision due to disease, with only peripheral vision remaining. The degenerative condition of his spine at the lumbar region aggravated because of injury. He also had a hypertensive condition and renal problems. He required daily medication. His diet was regulated and restricted. He appealed against sentence, relying on these facts. After considering medical reports and the medical facilities provided by the corrective services, the Court of Criminal Appeal upheld the sentence. In paragraph [33] the Court referred to the principle expounded by King CJ in R v. De Vroome (1987) 38 A Crim R 146 at p.147, which is set out below:", "zh-HK": "本席也參考了澳洲新南威爾斯州刑事上訴法庭近期的案例，Grenfell v. R [2009] NSWCCA 162。該案上訴人77 歲，承認詐騙罪被判入獄兩年8 個月，因病幾近完全失明，只有周邊視力，腰部脊椎因傷加劇退化，患有高血壓和腎病，需每天服藥，飲食需受規定和限制，以此要求減刑。上訴法庭考慮過醫生報告，和懲教部門的醫療設施，決定維持原判。在第[33]段，法庭引述了King CJ 在R v. De Vroome (1987) 38 A Crim R 146 的147頁的原則，譯文如下：" } }, { "doc_id": 50, "seg_id": 70, "translation": { "en": "“The courts can make some adjustment to sentences to take account of the additional hardship caused to an offender by his condition, but they are necessarily limited in the extent of such adjustment by the necessity of maintaining proper standards of punishment.”", "zh-HK": "“法庭可基於犯罪者，因其狀況承受加重困苦，在量刑時作出調整，不過調整的空間是有限度的必要，因為也有必要維持適當的刑罰。”" } }, { "doc_id": 50, "seg_id": 71, "translation": { "en": "The following conclusions can be drawn from the above authorities:", "zh-HK": "綜合上述的案例，得出的結論可歸納如下：" } }, { "doc_id": 50, "seg_id": 72, "translation": { "en": "(1)\tIll health generally will not operate as a mitigating factor. Medical facilities available in the prisons in Hong Kong are adequate to deal with prisoners’ general physical complaints.", "zh-HK": "(1) 一般而言，健康不佳通常不會是減刑的因素。本港監獄的醫療設施，足夠處理有關囚犯身體的一般投訴。" } }, { "doc_id": 50, "seg_id": 73, "translation": { "en": "(2)\tIn rare circumstances, very serious injuries, even where suffered in the course of criminal activity, can be (but not must be) taken into account to reduce the sentence.", "zh-HK": "(2) 在罕有的情況下，非常嚴重的傷害，即使是犯案時造成，可以考慮 (但不一定) 作為減刑理由。" } }, { "doc_id": 50, "seg_id": 74, "translation": { "en": "(3)\tReduction of sentence under these circumstances can be done as an act of mercy or on the basis that the hardship which the offender in question will suffer when he is in prison will, because of his disabilities or ill health, be more than those suffered by a healthy person.", "zh-HK": "(3) 這情況下減刑，可以是出於憐憫，也可以是基於犯罪者因殘障或健康惡劣，在監獄服刑承受的困苦，要比健康的人為甚。" } }, { "doc_id": 50, "seg_id": 75, "translation": { "en": "(4)\tAdjustment made to a sentence under these circumstances must be within proper limits, because of the necessity of maintaining proper standards of punishment.", "zh-HK": "(4) 這情況下調整刑罰，必須是適度的調整，因為也需顧及維持適當刑罰的必要。" } }, { "doc_id": 50, "seg_id": 76, "translation": { "en": "(5)\tIn order to decide whether a sentence should be reduced for this reason, all the circumstances of the case should be considered.", "zh-HK": "(5) 在決定應否為此減刑時，案件的所有情況都需要考慮。" } }, { "doc_id": 50, "seg_id": 77, "translation": { "en": "(6)\tThe court must keep a proper balance between public interest and the regard for the exceptional hardship suffered by an accused. In offences of extreme gravity, public interest no doubt must prevail. But even when the offence is not of extreme gravity, that is not an indication that due weight does not need to be given to public interest.", "zh-HK": "(6) 法庭應在公眾利益，和被告人的異常苦況，取得適當的平衡。極嚴重的罪行，固然要以公眾利益為先。即使罪行並非極其嚴重，也不等於公眾利益可以不需重視。" } }, { "doc_id": 50, "seg_id": 78, "translation": { "en": "Appellant’s health condition", "zh-HK": "上訴人的健康情況" } }, { "doc_id": 50, "seg_id": 79, "translation": { "en": "The appellant received an operation on the day following the accident. One year later at the time of sentencing, his injuries were stabilized. According to the report written in March 2009 by the doctor responsible for his treatment, the improvement of his upper limbs was fair. He was able to hold a spoon, albeit with some difficulty, but could not lift up both arms. With a specially designed arm support, he could take food on his own. Walking ability and excretory function were the areas with satisfactory improvement. He was able to walk with support for long distance and was capable of self-voiding. The aim of the therapy provided was to maintain his self-care ability. The doctor in charge of his treatment was of the opinion that in the prison environment he could only obtain limited limb training and physiotherapy, so that there was a chance that his limb function would deteriorate. He suggested that he need continuous treatment by therapists at regular intervals and care provided by his family members.", "zh-HK": "上訴人案發後翌日接受手術，一年後判刑時他的傷勢已穩定下來。據負責治療的醫生2009年3月的報告，他上肢康復尚可，能勉強以手握住匙羹，但不能提起雙臂，採用特製工具支撐手臂，可自行進食。步行的能力與排泄機能，都有滿意的進展。他可以藉著支撐，行走長的路程，也能自我排泄。治療的方向，是維持他自理的能力。主診醫生認為在監獄的環境，他只能獲有限度的四肢訓練和物理治療，肢體功能可能因而變壞，提出他需要治療師經常定期的治療，和家人的料理。" } }, { "doc_id": 50, "seg_id": 80, "translation": { "en": "There is also a report submitted by a Medical Officer of Stanley Prison in July 2009, which stated that when the appellant was transferred to the prison hospital in mid-March, his lower limbs recovery was well. He could stand up by himself and walk slowly with support. His upper limbs recovery was fair. He was provided with a mobile arm support by the physiotherapist and he could take food on his own. Arrangements were made by the prison hospital for him to attend the orthopaedic clinic of United Christian Hospital for follow-up treatment on two occasions in April and July, and to attend David Trench Rehabilitation Centre for physiotherapy on two occasions in April. According to this report, after he received physiotherapy for the second time, which was on 16 April 2009, no further physiotherapy was required.", "zh-HK": "赤柱監獄醫院的醫生，在2009年7月也提交了報告，指出上訴人在3月中進入監獄醫院時，下肢復元良好，可以自行站立，及藉著支撐緩慢行走，上肢康復尚可，物理治療師為他提供了活動的手臂支架，可自行進食。監獄醫院安排他在4月和7月，兩次到基督教聯合醫院骨科診所，接受跟進治療，和兩次在4月到戴麟趾康復中心，接受物理治療。據這報告，2009年4月16日第二次物理治療後，他不需要再接受物理治療。" } }, { "doc_id": 50, "seg_id": 81, "translation": { "en": "The final medical report was submitted by the United Christian Hospital in October 2009, which stated that there was good union of bone graft in the cervical spine. There were still numbness and weakness in his four limbs, with spasticity and pain. During the last follow-up, which was on 30 September, he was able to walk slowly with a frame and under supervision. He used a wheelchair in outdoor environment. He was not suffering from incontinence.", "zh-HK": "最後的醫生報告，是2009年10月由基督教聯合醫院提供，上訴人頸部脊椎移植的骨骼，結合良好，仍有四肢麻痹和乏力，有痙攣和痛楚，在報告最後一次跟進時，即是9月30日，能以支架和在指導下緩慢步行，在戶外環境則用輪椅，沒有失禁。" } }, { "doc_id": 50, "seg_id": 82, "translation": { "en": "The appellant claimed that during the period when he was serving his sentence, he had received only one session of physiotherapy. He felt that his shoulder blades and the tendons of his arms and legs were wasting away, and that the function of his various organs deteriorated rapidly. Since 7 May 2009 when he was granted bail pending appeal, he has been to Kowloon Hospital two times every week for physiotherapy. He has also consulted practitioners of Chinese medicine. He did not submit any recent medical report to the court. He asked for suspended sentence in order that he could receive “concentrated treatment and better care”.", "zh-HK": "上訴人聲稱在服刑期間，只能獲得一次物理治療，他感覺到肩胛骨及手腳筋萎縮，身體機能迅速下滑。自從2009年5月7日，獲准保釋等候上訴，期間每週兩次到九龍醫院做物理治療，也有看中醫。他沒有向法庭提交近期的醫生報告。他要求緩刑，讓他能接受「密集式的治療，和較好的照顧」。" } }, { "doc_id": 50, "seg_id": 83, "translation": { "en": "Both in his written submission and oral submission the appellant described in detail that owing to his physical condition, in every aspect of his daily life he needed assistance and care, and that only his family members would be able to take care of him with the requisite degree of consideration and attention, which would be unattainable in prison. At the time of the accident, he was the sole breadwinner of the family. His occupation was construction engineering technician, but his wife was not working because she had to take care of an infant son and an infant daughter. After the accident, he has been living on insurance compensation, which can support him as a means of living for 2 to 3 years. His relatives also gave him financial support. Recently, he successfully applied for financial assistance from the patients fund of Yan Chai Hospital and used it for the purchase of medical equipment.", "zh-HK": "上訴人在他的書面及口頭陳詞，細表由於身體狀況，他的生活起居，每每需人協助和照料，體貼和悉心的照顧，只有家人可以給他，在獄中是得不到的。事發時他是家庭惟一經濟支柱，職業是建築工程技工，妻子沒有工作，因為要照顧一對年幼子女。事發後他依賴保險賠償維持生計，可足夠兩至三年生活，他的親人也給予經濟上援助，近期成功申請了仁濟醫院的病人基金資助，購買醫療用具。" } }, { "doc_id": 50, "seg_id": 84, "translation": { "en": "Medical facilities available in the prisons for disabled prisoners", "zh-HK": "監獄對殘障囚犯的醫療設施" } }, { "doc_id": 50, "seg_id": 85, "translation": { "en": "At the request of the court, the Correctional Services Department submitted a report in October 2009 on the medical facilities available in the prisons. If the appellant has to serve his sentence, he would most likely be sent back to Stanley Prison, where there is a hospital. All prisoners upon admission to correctional institutions will be examined by Medical Officers and appropriate treatments or rehabilitation programmes such as physiotherapy or occupational therapy would be arranged for them if necessary. If specialist consultation is required, they will either be treated by visiting specialists from the Hospital Authority or sent to outside clinics for treatment.", "zh-HK": "懲教署應上訴法庭要求，在2009年10月就監獄的醫療設施提供報告。上訴人如需服刑，很大可能會被遣回赤柱監獄，該監獄設有醫院。入獄時囚犯要接受醫生檢查，有需要會被安排適當的康復療程，例如物理治療或工作治療。如果需要專科診治，會由醫管局的外訪專科醫生治理，或被送往外間診所醫療。" } }, { "doc_id": 50, "seg_id": 86, "translation": { "en": "All along, the Correctional Services Department has been taking care of disabled prisoners, for example, prisoners suffering from quadriplegia, paraplegia or suffering from a paralytic stroke. Para-medical services like physiotherapy and occupational therapy are provided for those prisoners by the department, whereas prostheses are provided by the Hospital Authority. In addition, equipment such as wheelchairs, walking frames, crutches and handrails are available in the prisons. At the time of the report, in the prison/prisons there was one prisoner suffering from paraplegia and several prisoners who could not walk properly and needed walking aids.", "zh-HK": "懲教署一向有收容殘障的囚犯，例如是四肢癱瘓、下肢癱瘓、中風的人。懲教署有為他們安排護理服務，例如物理治療、工作治療，由醫管局提供義肢，監獄亦有提供輪椅、步行支架、拐杖，扶手的設施。在作出報告時，監獄有一名囚犯下肢癱瘓，有數名囚犯不良於行，需步行扶助。" } }, { "doc_id": 50, "seg_id": 87, "translation": { "en": "In addition to the existing rehabilitative programmes provided to prisoners serving their sentences, Medical Officers stationed in the prison can refer the appellant to specialists of the Hospital Authority for training and treatment. The Correctional Services Department claimed that they were capable of providing adequate care to the appellant.", "zh-HK": "除了現在提供給服刑犯人的康復療程，監獄的醫生也可把上訴人轉介至醫管局的專科，接受訓練和治療。懲教署認為，有能力對上訴人提供足夠的照顧。" } }, { "doc_id": 50, "seg_id": 88, "translation": { "en": "The Senior Public Prosecutor referred to sections 3 and 11 of the Prisons Ordinance, Cap. 234 and rules 72, 91, 143, 144 and 148 of the Prison Rules. According to these provisions, there are Medical Officers in the prisons to take charge of medical matters. A Medical Officer is responsible for the treatment of the prisoners when they are sick. He shall report to the Superintendent about the health of the prisoners, and shall make daily visits to the sick in the prison hospitals. If a prisoner cannot properly be treated in a prison, the Commissioner may order that the prisoner be taken to a government hospital or other suitable place for the purpose of treatment. Every officer of the Correctional Services Department shall direct the attention of the Superintendent to any prisoner who appears to be out of health, and the Superintendent shall without delay bring such cases to the notice of the Medical Officer.", "zh-HK": "高級檢控官也引述了《監獄條例》(第234章) 第3和11條,《監獄規則》第72、91、143、144及148條。根據這些條文，監獄有醫生主管醫療事務，負責治療患病的囚犯，須就囚犯的健康向監督提報告。醫生須每天巡查監獄醫院的病人。如果囚犯在獄中無法獲得妥當治療，署長可命令將囚犯帶往政府醫院或其他合適地方接受治療。所有懲教署的人員，須促請監督注意看似健康欠佳的囚犯，而監督須立即通知醫生患病囚犯的情況，不得延誤。" } }, { "doc_id": 50, "seg_id": 89, "translation": { "en": "My finding", "zh-HK": "本席的裁定" } }, { "doc_id": 50, "seg_id": 90, "translation": { "en": "Having considered the physical condition of the appellant and the fact that the hardship he suffers in prison will be more than that suffered by an ordinary person, I hold that the trial judge, in reducing the term of 3 years’ imprisonment to 2 years, had not taken into account sufficiently the appellant’s predicament in prison. There should be a further reduction.", "zh-HK": "本席考慮到上訴人的身體狀況，他在監獄服刑承受的困苦，要比常人為甚。原審法官把3年刑期減為兩年，本席認為法官未有充份地考慮，上訴人在獄中服刑的困境，他應獲減刑。" } }, { "doc_id": 50, "seg_id": 91, "translation": { "en": "However, I do not agree that the sentence should be changed to a suspended one. Adjustment made to the sentence by reason of the appellant’s health condition must be within proper limits because of the necessity of maintaining proper standards of punishment. Having caused the death of another person by driving dangerously under the influence of alcohol, the culpability of an offender of such a crime is grave indeed, because he selfishly disregarded the safety of other road users with the result that an innocent life was taken away. The court must keep a proper balance between public interest and the exceptional hardship suffered by the appellant.", "zh-HK": "但是本席不同意把刑期改為緩刑。以上訴人的健康情況調整刑罰，必須是適度的調整，法庭也需顧及維持適當刑罰的必要。醉酒危險駕駛，引致他人死亡，犯罪者的刑責是嚴重的，因為他自私地罔顧其他道路使用者的安全，以致奪去無辜的性命。法庭應在公眾利益，和上訴人的異常苦況，取得適當的平衡。" } }, { "doc_id": 50, "seg_id": 92, "translation": { "en": "I understand that when the appellant serves his sentence in prison, the physical and mental suffering borne by him because of his inability to take care of himself will render his punishment more severe than that visited on an ordinary prisoner whose suffering is only deprivation of freedom. The treatment and care provided by the Correctional Services Department certainly cannot be compared with those given by his wife and relatives, but the care provided by the Department is adequate, just as the care being currently provided to other disabled prisoners. If it is necessary to do so, the Medical Officers in the prison can make arrangements for referring him to specialists of the Hospital Authority for training and treatment so that the recovery of his physical functions can be maintained.", "zh-HK": "本席理解上訴人在獄中服刑，因為無力自理，身心都受折磨，他的懲罰要比一般被剝奪自由的囚犯為大。懲教署可給予的治療和照顧，當然不能與他的妻子和親人的照料相比，不過懲教署的照料是足夠的，正如目前照料其他有殘障的囚犯一樣。如有需要，監獄的醫生可安排他往醫管局的專科，接受訓練和治療，保持身體機能的康復狀況。" } }, { "doc_id": 50, "seg_id": 93, "translation": { "en": "The appellant claimed that he asked for a suspended sentence because he had the interests of his family at heart, and that he would strive to take care of himself as much as possible so as not to be a burden of his family. Regardless of whether he is to serve his sentence in prison, that should be his target.", "zh-HK": "上訴人聲稱要求緩刑，是為了家人着想，希望能盡量做到自理，不想成為家人的負累。無論是否在監獄服刑，這都應該是他的目標。" } }, { "doc_id": 50, "seg_id": 94, "translation": { "en": "I find that in view of the appellant’s special circumstances, the appropriate term should be one third of the starting point, that is 1 year imprisonment.", "zh-HK": "本席認為在上訴人的特殊情況，適當的刑期應是量刑起點的三份一，即是一年監禁。" } }, { "doc_id": 50, "seg_id": 95, "translation": { "en": "Hon Tong J:", "zh-HK": "原訟法庭法官湯寶臣：" } }, { "doc_id": 50, "seg_id": 96, "translation": { "en": "I concur with the judgment of Kwan JA. I allow the appeal and the term of imprisonment is reduced from 2 years to 1 year.", "zh-HK": "本席認同上訴法庭法官關淑馨的裁決，判定上訴人的上訴得直，其刑期由2年減至1年。" } }, { "doc_id": 50, "seg_id": 97, "translation": { "en": "Hon Yeung JA:", "zh-HK": "上訴法庭法官楊振權：" } }, { "doc_id": 50, "seg_id": 98, "translation": { "en": "This court unanimously allow the appeal against sentence, and by majority the term of imprisonment of the appellant is reduced from 2 years to 1 year, which shall take effect immediately.", "zh-HK": "本庭一致裁定上訴人的減刑上訴得直，但以大比數裁定上訴人的刑期由2年減至1年，並需立刻執行。" } }, { "doc_id": 50, "seg_id": 99, "translation": { "en": "Ms. Teresa Kam, Senior Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官金玉代表。" } }, { "doc_id": 50, "seg_id": 100, "translation": { "en": "The Appellant, acting in person, present.", "zh-HK": "上訴人：無律師代表，親自應訊。" } }, { "doc_id": 51, "seg_id": 1, "translation": { "en": "The applicant and the 2nd defendant at trial were charged that on 2 March 2012, outside Ashley Centre, 23-25 Ashley Road, Tsim Sha Tsui, and acting together with others unknown, they unlawfully and maliciously caused grievous bodily harm to Luk Hung Kai (“Luk”) with intent to do bodily harm to him, contrary to s 17(a) of the Offences against the Person Ordinance. The applicant pleaded not guilty and was convicted after trial before District Judge Johnny Chan, who sentenced him to 6 years’ imprisonment. The applicant applied to this Court for leave to appeal both conviction and sentence.", "zh-HK": "申請人與原案第二被告人被控於2012年3月2日，在尖沙咀亞士厘道23-25號雅利士中心外，連同其他身份不詳的人，意圖使陸鴻楷（“陸”）身體受傷而非法及惡意導致他身體受嚴重傷害，違反《侵害人身罪條例》第十七 (a) 條。申請人否認控罪，經審訊後，被區域法院法官陳仲衡裁定罪名成立，判監6年。申請人不服定罪及判刑，向本庭申請上訴許可。" } }, { "doc_id": 51, "seg_id": 2, "translation": { "en": "At the conclusion of the hearing on 10 April 2014, we dismissed the application for leave to appeal conviction and sentence, for reasons which we now give.", "zh-HK": "2014年4月10日，經聆訊後，本庭拒絕定罪及判刑的上訴許可申請，理由如下。" } }, { "doc_id": 51, "seg_id": 3, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 51, "seg_id": 4, "translation": { "en": "At 1 am on 2 March 2012, Luk and one Mr Chan Kong Shing (PW1) were in a bar at Ashley Centre for entertainment, during which Luk introduced the applicant to PW1 and the three of them had drinks together. After a while, the applicant went to the rear staircase with Luk, who returned to his seat half an hour later. PW1 noticed that Luk appeared to be a bit unhappy. At around 4 am, the applicant came back with several men and said to Luk, “Since you like talking so much, go down to talk!” Then Luk was taken away under duress. PW1 followed them, and while waiting for the lift on the 7th floor, he heard someone from the applicant’s group saying with foul language, “Sun Yee On is [xxx] almighty in Tsim Sha Tsui!”.", "zh-HK": "2012年3月2日凌晨1時，陸和控方第一證人陳港成先生在雅士利中心一間酒吧消遣。期間，陸介紹申請人給控方第一證人認識，他們一起喝酒消遣。過了一會，申請人跟陸一起到後樓梯位置，半小時後返回座位。控方第一證人見陸顯得有點不開心。凌晨4 時左右，申請人連同數名男子折返，對陸說：“你咁鍾意講，就落去講！”，然後挾持陸離開。控方第一證人尾隨他們，在7樓等候升降機期間聽見申請人一伙人中有人以粗言道：“新義安响尖沙咀大x晒！”。" } }, { "doc_id": 51, "seg_id": 5, "translation": { "en": "When the lift arrived at the ground floor, Luk was dragged away and tugged all the way to somewhere outside Ashley Centre where he was assaulted by the applicant’s group (but not the applicant himself) with fists and kicks. Two of them even hit Luk on the head with glass bottles. During the assault which lasted some 5 minutes, Luk, lying on the ground, was too weak to put up any resistance, and various parts of his body including his head were subject to attack. Towards the end of the incident, the applicant asked the assailants to leave first, saying, “Someone has made a report to the police. Off you go! Let me deal with it here. I have never hit him.” The assailants and the applicant left the scene before the ambulance arrived.", "zh-HK": "升降機到達地下後，陸被強行拉出，其身體在地上拖行，一直到雅士利中心門外，申請人一伙（但不包括申請人）便向陸拳打腳踢，其中二人更用玻璃樽襲擊他的頭部。陸躺在地上無力反抗，身體多處受襲，包括頭部。襲擊歷時約5分鐘，申請人於末段叫施襲者先行離開，並說：“有人報咗警，你哋走喇！呢度等我處理，我冇打過佢。”施襲者和申請人均在救護車到場前離開現場。" } }, { "doc_id": 51, "seg_id": 6, "translation": { "en": "Mr Leung Fuk Hoi (PW2) was a cook who, at the material time, happened to be smoking outside the ground floor of Ashley Centre. He saw 5 or 6 men, who were 20 feet away from him, dragging out a man from Ashley Centre, and 3 or 4 of them assaulted the man with fists and kicks, while the other two hit the man being dragged with glass bottles. The assaulted man was injured in the head and bleeding.", "zh-HK": "控方第二證人梁福海先生是一位廚師，案發時剛好在雅士利中心地下門外抽煙。他在20呎外看見5、6名男子將一個男人從雅士利中心拖出來，其中3、4個用拳腳施襲，另外兩個用玻璃樽打被拖行的男子。被襲的男子頭破血流。" } }, { "doc_id": 51, "seg_id": 7, "translation": { "en": "Miss Cheung Wan Yin (PW3) was in the bar on the 7th floor at the material time. At about 2 am, she heard some people, including the applicant, quarrelling inside the bar, but she had no idea what the quarrel was about or what led to the quarrel.", "zh-HK": "控方第三證人張韻妍小姐案發時在7樓酒吧。凌晨2時左右，她聽到酒吧內有人爭吵，當中包括申請人，但她不知道爭吵的內容或背景。" } }, { "doc_id": 51, "seg_id": 8, "translation": { "en": "The prosecution also adduced as evidence a CCTV footage which showed what happened when Luk was being dragged into the lift. It appeared that Luk was not willing to be taken into the lift and the applicant and the other men subdued him with violence. After the lift arrived on the ground floor, the applicant exited first and the people next to him dragged Luk out and tugged him along the ground. The group left the lobby, with PW1 following them.", "zh-HK": "控方證據還包括一段閉路電視錄影片段。該片段錄到陸被人強行帶進升降機的情況。當時陸看來是不情願被帶進去升降機內，期間申請人和數名男子以武力控制著他。升降機到達地面後，申請人先行步出，他身邊的人把陸拉出去，在地上拖行。控方第一證人尾隨一干人等離開大堂。" } }, { "doc_id": 51, "seg_id": 9, "translation": { "en": "Under cross-examination, PW1 admitted that he had consumed about less than 10 bottles of beer that night, and the defence put it to him that at that time he must be under the influence of alcohol. The defence also submitted that the evidence of PW2 and PW3 and that of PW1 were discrepant in the following ways:", "zh-HK": "盤問時，控方第一證人承認當晚喝了約10瓶以下的啤酒，辯方於是指他當時必然受到酒精影響。辯方還說控方第二和第三證人的證供和控方第一證人有以下出入：" } }, { "doc_id": 51, "seg_id": 10, "translation": { "en": "(1)PW3 said that she did not hear words to the effect that “Since you like talking so much, go down to talk!”.", "zh-HK": "（一）控方第三證人說她沒聽到“你咁鍾意講，落去講！”之類的說話。" } }, { "doc_id": 51, "seg_id": 11, "translation": { "en": "(2)PW3 said that 5 or 6 men put their hands on the shoulder of “A” (i.e. Luk) indicating that he should go with them, in the course of which there was no dispute.", "zh-HK": "（二）控方第三證人說有5至6名男子搭著“A君”（即陸）的膊頭示意他一起離開，期間並無發生爭執。" } }, { "doc_id": 51, "seg_id": 12, "translation": { "en": "(3)PW2 saw someone hitting Luk on the head twice with glass bottle, and on one of the two occasions the glass even broke as a result. On the other hand, PW1 said he “[did] not think that [the glass bottle] landed on” Luk’s head.", "zh-HK": "（三）控方第二證人看見有人用玻璃樽先後兩次擊中陸的頭部，其中一次更導致玻璃碎裂；控方第一證人則說玻璃樽“應沒打中”陸的頭。" } }, { "doc_id": 51, "seg_id": 13, "translation": { "en": "(4)PW2 said that at the scene no one said “a report has been made to the police” or talked in a loud voice.", "zh-HK": "（四）控方第二證人說現場沒有人說：“報了警”或高聲說話。" } }, { "doc_id": 51, "seg_id": 14, "translation": { "en": "The defence submitted that these discrepancies in the evidence had undermined the reliability of PW1’s evidence.", "zh-HK": "辯方認為這些證供上的差異削弱了控方第一證人證供的可靠性。" } }, { "doc_id": 51, "seg_id": 15, "translation": { "en": "The prosecution and defence did not dispute the injuries sustained by Luk.", "zh-HK": "控辯雙方對陸的傷勢並無爭議。" } }, { "doc_id": 51, "seg_id": 16, "translation": { "en": "When Luk arrived at the Accident and Emergency Department of the hospital, his general condition was poor and he was dazed and muddled. Two lacerations were found on his head, his right eyelid was swollen with bruises, and there was a lacuna on his right upper jaw. He had to be intubated when he was in the Accident and Emergency Department. Upon examination, the Department of Neurosurgery found swellings and bruises around Luk’s right orbit. Brain and cervical spine CT scanning showed mild subarachnoid hemorrhage in his right ambient cistern and mild hemorrhage in his right medial temporal lobe. There were also fractures in his right pars triangularis and right lower jaw.", "zh-HK": "陸被送到醫院急症室時，陸的整體狀況欠佳，神智迷糊；他的頭部有兩處裂傷，右眼簾有瘀血及腫脹，右上顎凹陷。陸在急症室時須插入喉管。腦外科部門檢驗陸，發現陸右眼窩四周腫脹及瘀傷，腦部及頸椎電腦掃瞄顯示，在右環池蛛網膜下有少量出血及右顳葉內側有少量出血，右邊三角部及右下顎亦有骨折。" } }, { "doc_id": 51, "seg_id": 17, "translation": { "en": "Luk received conservative treatment from the hospital for his brain trauma. His coma scale reading gradually improved, and later on the tubes could be removed from him. He was examined respectively by the Ear, Nose and Throat Department, Ophthalmology Department and Dental Department and was required to visit various specialists for follow-up treatment.", "zh-HK": "院方以保守療法診治陸腦部創傷，陸的昏迷指數逐漸改善，其後陸可被拔除喉管。陸分別接受了耳鼻喉科、眼科及牙科的檢驗，並須到各專科覆診。" } }, { "doc_id": 51, "seg_id": 18, "translation": { "en": "On 9 March 2012, a brain scan on Luk showed resolution of intracranial hematoma. Luk was still dazed and muddled, but his coma scale reading gradually improved.", "zh-HK": "2012年3月9日腦部掃瞄顯示，臚內血腫消散，陸仍然神智迷糊，但昏迷指數亦逐漸改善。" } }, { "doc_id": 51, "seg_id": 19, "translation": { "en": "On 16 March and 7 May, Luk was respectively referred to the Kowloon Hospital for rehabilitative treatment and the Department of Neurosurgery of the Queen Elizabeth Hospital for follow-up treatment.", "zh-HK": "3月16日及5月7日，陸分別獲轉介往九龍醫院接受康復治療及往伊利沙伯醫院腦外科接受覆診治療。" } }, { "doc_id": 51, "seg_id": 20, "translation": { "en": "On 28 March 2012, Luk, under general anaesthesia, had an open reduction and internal fixation performed on him in respect of his fractured inferior maxilla. The results were satisfactory.", "zh-HK": "12年3月28日，陸於全身麻醉下，就斷裂的下頜骨進行開放性復位內固定。癒合順利。" } }, { "doc_id": 51, "seg_id": 21, "translation": { "en": "On 14 April 2012, an oral and maxillofacial surgeon and an ophthalmic surgeon jointly performed an operation on Luk, involving open reduction and internal fixation in respect of his fractured zygomatic complex maxillary and orbital cavity. The operation was completed on 18 April, and the results were satisfactory.", "zh-HK": "2012年4月14日，口腔頜面外科醫生與眼外科醫生為陸進行聯合手術，就斷裂的顴骨復合體上頜竇和眼眶進行開放性復位內固定，手術於4月18日完成，癒合順利。" } }, { "doc_id": 51, "seg_id": 22, "translation": { "en": "Based on such undisputed medical evidence, the trial judge found that the assault on Luk had caused grievous bodily harm to him.", "zh-HK": "根據這些不具爭議的醫療證據，原審法官裁定陸所受的襲擊對他身體造成嚴重傷害。" } }, { "doc_id": 51, "seg_id": 23, "translation": { "en": "Defence case", "zh-HK": "辯方案情" } }, { "doc_id": 51, "seg_id": 24, "translation": { "en": "The applicant elected to give evidence. He said that he, a part-time party organizer, had been acquainted with Luk for about one year, during which they had seen each other twenty-odd times, and that they were ordinary friends. He had only met PW1 once or twice and there were no grudges between them. At midnight to 1 am on the day in question, he saw Luk and PW1 at the bar on the 7th floor of Ashley Centre having drinks together and chatting. The applicant only took a sip of beer as he had to work, but Luk had consumed a lot. The atmosphere at that time was relaxed. At some point, the applicant and Luk went to the rear staircase where they smoked. Later on, he left and went to another bar at Hillwood Road to work, and returned at 4 am.", "zh-HK": "申請人選擇作供。他說自己是兼職派對搞手，認識陸約一年，期間見面廿多次，兩人是普通朋友。他與控方第一證人見面僅一、兩次，彼此互無過節。案發當晚凌晨12至1時左右，他在雅士利中心7樓酒吧碰見陸和控方第一證人，一起喝酒聊天。申請人因工作關係只淺酌了一口啤酒，而陸則喝了很多。當時氣氛輕鬆，申請人和陸亦曾一起到後樓梯間抽煙。申請人後來離開，到了山林道另一間酒吧工作，凌晨4時折返。" } }, { "doc_id": 51, "seg_id": 25, "translation": { "en": "While waiting in the lift lobby on the 7th floor, the applicant saw a group of people standing around Luk who appeared to be under the influence of alcohol. When entering the lift, he pulled Luk back once and he himself lost balance and bumped against a woman behind him. He did not know the group who were standing around Luk, and he denied having instructed anyone to drag Luk away or assault him. Upon leaving Ashley Centre, the applicant joined two friends in Ashley Road. When he returned to Ashley Centre, he saw Luk lying on the ground. He asked PW1 if it was necessary to send Luk to the hospital. PW1 said that he would do so, and the applicant then boarded a taxi with his friends and left the scene.", "zh-HK": "申請人在7樓升降機大堂等候期間，看到一班人圍著陸，陸亦看似受酒精影響。他進入升降機時曾拉了陸一把，自己失平衡碰到身後一名女士。他並不認識圍著陸的那班人，又否認曾指使任何人拉陸離開或向陸施襲。申請人離開雅士利中心後，跟兩名友人在亞士厘道會合，返回雅士利中心時看到陸躺在地上。申請人問控方第一證人是否需要送陸到醫院。當控方第一證人說會那樣做時，申請人便與友人乘的士離開。" } }, { "doc_id": 51, "seg_id": 26, "translation": { "en": "Main issue", "zh-HK": "主要爭議" } }, { "doc_id": 51, "seg_id": 27, "translation": { "en": "The main issue in the present case is whether, as alleged by the prosecution, the applicant had acted in joint enterprise with the other assailants to assault Luk, causing grievous bodily harm to him.", "zh-HK": "本案的主要爭議點是：申請人是否如控方所指，夥同其他襲擊者向陸施襲，令他身體受到嚴重傷害。" } }, { "doc_id": 51, "seg_id": 28, "translation": { "en": "Conviction", "zh-HK": "定罪" } }, { "doc_id": 51, "seg_id": 29, "translation": { "en": "Having considered and analysed the evidence, the trial judge found that the three prosecution witnesses were veracious and reliable, although PW3’s evidence was of limited assistance to both the prosecution and the defence.", "zh-HK": "經考慮及分析後，原審法官裁定控方三名證人都是誠實可靠，惟控方第三證人的證供對控辯雙方均沒有太大幫助。" } }, { "doc_id": 51, "seg_id": 30, "translation": { "en": "In respect of the two issues of whether the applicant had participated in assaulting Luk and the role played by him at the material time, PW1’s evidence was particularly important. Regarding the criticisms levelled by the defence against PW1’s evidence, the trial judge took the view that:", "zh-HK": "就案發時申請人有否參予對陸的襲擊和他所辦演的角色這兩點，控方第一證人的證供尤其重要。就辨方對控方第一證人口供的批評，原審法官認為：" } }, { "doc_id": 51, "seg_id": 31, "translation": { "en": "(1)The CCTV footage showed that PW1 was not under the influence of alcohol.", "zh-HK": "（一）閉路電視片段顯示控方第一證人並沒受酒精影響。" } }, { "doc_id": 51, "seg_id": 32, "translation": { "en": "(2)PW1 gave evidence in a straightforward and impartial manner without deliberately making up allegations against the applicant.", "zh-HK": "（二）控方第一證人作供時態度平實中肯，沒刻意掐造對申請人不利的指控。" } }, { "doc_id": 51, "seg_id": 33, "translation": { "en": "(3)PW3’s evidence did not undermine PW1’s reliability because the matters on which the two witnesses focused were different.", "zh-HK": "（三）控方第三證人的證供沒有削弱控方第一證人的可靠性，因為她所注意的地方跟控方第一證人有所不同。" } }, { "doc_id": 51, "seg_id": 34, "translation": { "en": "(4) As to the slight inconsistencies between the evidence of PW2 and that of PW1, this was also reasonable because each of the two witnesses told the court what he saw and heard from his own location at the material time, drawing on his own recollection of what had happened. Most importantly, the CCTV footage lent support to the case of PW1 to a certain extent.", "zh-HK": "（四）至於控方第二證人與控方第一證人證供有輕微的出入，這也是合乎常理的，因為兩人按著自己獨立的記憶，案發時處身不同的位置將所見所聞向法庭闡釋。最重要的是，閉路電視錄影片段在某程度上支持了控方第一證人的說法。" } }, { "doc_id": 51, "seg_id": 35, "translation": { "en": "On the other hand, the trial judge rejected the applicant’s evidence.", "zh-HK": "另一方面，原審法官不接納申請人的證供。" } }, { "doc_id": 51, "seg_id": 36, "translation": { "en": "The trial judge pointed out that the footage showed that inside the lift the applicant waved his hand three times, looking like he was giving orders to the people outside. The applicant’s act of rushing towards the lift door together with the 2nd defendant at trial was inconsistent with the applicant’s allegation that he did not know the assailants. The trial judge was of the view that, were it true that the applicant pulled Luk into the lift for the sake of his safety (as the applicant alleged), he would not have, as shown in the footage, left the lift on his own upon arrival at the ground floor without even looking back. In fact, Luk had been shoved continuously inside the lift. When the applicant found that Luk was lying on the ground, he said the words “Do you need to go first? I will take him to the hospital.” Coupled with the fact that the applicant left the scene before the ambulance arrived, the trial judge drew the inference that the applicant had knowledge of the assault, as opposed to his allegation in the court that he did not know that Luk had been assaulted.", "zh-HK": "原審法官指出，錄影片段顯示申請人在升降機內曾作出3 次招手的動作，狀似向外面的人發施號令，而申請人曾與原案第二被告人一起衝向升降機門，動作不符合他不認識行兇者的說法。原審法官認為，如果真的如申請人所說，他是為了陸的安全而拉他入升降機，他實不會如片段顯示在到達地面時自行離開升降機，連頭也不回。事實上陸在升降機內已被不斷推撞。當申請人發現陸躺在地上時，拋下了一句“你使唔使走先？我送佢去醫院。”，加上申請人在救護車到場時已先行離開，原審法官因此推斷申請人對襲擊一事知情，而非他在庭上指不知道陸曾受到襲擊。" } }, { "doc_id": 51, "seg_id": 37, "translation": { "en": "The trial judge accepted the prosecution evidence and found that the prosecution had proved its case beyond reasonable doubt.", "zh-HK": "原審法官信納控方證據，裁定控方已在毫無合理疑點情況下，成功舉證。" } }, { "doc_id": 51, "seg_id": 38, "translation": { "en": "Sentence", "zh-HK": "判刑" } }, { "doc_id": 51, "seg_id": 39, "translation": { "en": "The trial judge took the view that given the serious harm done to Luk, it was indeed fortunate that he did not die or become permanently disabled. The circumstances of the present case fell within the most serious category because the several assailants joined forces not only to drag Luk away from the bar but also to assault him, who was unarmed, by beating and kicking him and hitting him on the head with glass bottles. They could be described as acting in blatant disregard of the law. The trial judge also considered that the incident obviously smacked of triad elements. He adopted 6 years’ imprisonment as the starting point for sentencing. Having been convicted after trial, the applicant was not entitled to any discount to his sentence.", "zh-HK": "原審法官認為陸所受的傷害嚴重，他沒有死亡或永久傷殘實屬幸運。本案屬情節最嚴重的類別，因為行兇者集數人之力，不單強行拉陸離開酒吧，更對手無寸鐵的陸拳打腳踢，並用玻璃樽重擊他的頭部，兇徒可謂目無視法紀。原審法官又認為案件明顯帶有黑社會的色彩。原審法法官以6年監禁作量刑基準，由於申請人經審訊後被定罪，故刑期不能得到任何扣減。" } }, { "doc_id": 51, "seg_id": 40, "translation": { "en": "At the time of sentencing, the applicant was 24 years of age and had received education up to Form 5. In 2008, following a conviction for theft, he was sentenced to 160 hours’ community service. In mitigation, he said that after the offence he tried hard to turn over a new leaf by actively pursuing further studies and doing charitable work such as donating blood and serving as a voluntary worker. The trial judge did not consider them strong mitigating factors.", "zh-HK": "申請人判刑時24歲，中五教育程度，2008年曾因盜竊罪被判160小時社會服務令。他求情指案發後努力改過自新，積極進修，並多作善行如捐血、當義工等。原審法官認為這些都不是有力的求情理由。" } }, { "doc_id": 51, "seg_id": 41, "translation": { "en": "Application for leave to appeal conviction", "zh-HK": "針對定罪的上訴申請" } }, { "doc_id": 51, "seg_id": 42, "translation": { "en": "The applicant has put forward three grounds of appeal in support of his contention that the conviction is neither safe nor satisfactory.", "zh-HK": "申請人提出3個上訴理由以支持定罪不安全及不穩妥的主張。" } }, { "doc_id": 51, "seg_id": 43, "translation": { "en": "First, it is argued that the trial judge erred in allowing PW1 to read his witness statement for the purpose of refreshing his memory as the prosecution had failed to establish a sufficient legal basis for PW1 to be allowed to read the statement. Such error, it is submitted, constituted a material irregularity in the trial.", "zh-HK": "第一，原審法官錯誤地批准控方第一證人翻閱其證人供詞，以幫助他恢復記憶，因為控方未能建立足夠的法理基礎讓他閱讀供詞。法官此舉導致審訊過程出現重大的不當之處。" } }, { "doc_id": 51, "seg_id": 44, "translation": { "en": "The Court of Appeal has repeatedly pointed out that the purpose of giving evidence at trial is not to test the memory of a witness. The focus of the court is on the reliability of a witness and the truth of the matter. If, in the course of giving evidence in the court, a witness has to read his witness statement to refresh his memory, the court may allow him to do so provided that, upon being shown the statement, the witness is able to state that he still had a clear recollection of the relevant facts when he made the statement: see R v Lai Chi-ping [1982] HKC 592 at 595A-B.", "zh-HK": "上訴庭多次申明，證人作供並非要測試他的記憶力，法庭所關注的是證人的可信性及事件的真相。若證人在庭上作供時需要閱讀其證人供詞以恢復記憶，只要把證人供詞給他看，而他又能說明當他提供該份供詞時，他對有關事實的記憶仍然鮮明，法庭便可批准他閱讀供詞來恢復記憶：見R v Lai Chi-ping [1982] HKC 592，第595A-B頁。" } }, { "doc_id": 51, "seg_id": 45, "translation": { "en": "At trial, PW1 gave the following evidence in respect of his witness statement:", "zh-HK": "原審時，控方第一證人有關其證人供詞的證供如下：" } }, { "doc_id": 51, "seg_id": 46, "translation": { "en": "“Q:Do you remember that you made – gave a statement to the police after the incident?", "zh-HK": "“問：你記唔記得你事後同警方做－－落過一份口供呀？" } }, { "doc_id": 51, "seg_id": 47, "translation": { "en": "A:(I) do.", "zh-HK": "答：記得。" } }, { "doc_id": 51, "seg_id": 48, "translation": { "en": "Q:(You) do. Do you wish to read the statement?", "zh-HK": "問：記得。你想唔想睇番份口供？" } }, { "doc_id": 51, "seg_id": 49, "translation": { "en": "A:That will be good.", "zh-HK": "答：都好。" } }, { "doc_id": 51, "seg_id": 50, "translation": { "en": "MR LUK:Your Honour, I will object to that because he, just now his reason was that he could not remember.", "zh-HK": "MR LUK：法官閣下，我會反對，因為點解，佢頭先佢嗰個原因就係話佢都話唔記得。" } }, { "doc_id": 51, "seg_id": 51, "translation": { "en": "COURT:Now he is – the question you are clarifying is whether he does not remember now or he did not remember at that time or he did not remember at any time?", "zh-HK": "官：佢而家係－－問題你弄清楚佢而家唔記得定當時唔記得，定從來都唔記得呢？" } }, { "doc_id": 51, "seg_id": 52, "translation": { "en": "MR LUK:Yes, yes.", "zh-HK": "MR LUK：係，係。" } }, { "doc_id": 51, "seg_id": 53, "translation": { "en": "MR WONG:Yes.", "zh-HK": "MR WONG：係。" } }, { "doc_id": 51, "seg_id": 54, "translation": { "en": "COURT:Did (he) remember when the statement was given?", "zh-HK": "官：喺落口供嘅時候記唔記得呢？" } }, { "doc_id": 51, "seg_id": 55, "translation": { "en": "MR WONG:Yes, yes.", "zh-HK": "MR WONG：係，係。" } }, { "doc_id": 51, "seg_id": 56, "translation": { "en": "COURT:The basis …", "zh-HK": "官：個基礎…" } }, { "doc_id": 51, "seg_id": 57, "translation": { "en": "MR LUK:Perhaps the prosecutor do a bit more to establish the basis first, yes.", "zh-HK": "MR LUK：或者主控官做多少少嘅基礎先，係。" } }, { "doc_id": 51, "seg_id": 58, "translation": { "en": "MR WONG:Yes, sorry, sorry.", "zh-HK": "MR WONG：係，對唔住，對唔住。" } }, { "doc_id": 51, "seg_id": 59, "translation": { "en": "Q:Is it the case that (you) remembered at that time and now you do not remember, or that at no stage did you remember?", "zh-HK": "問：你係當時記得，而家唔記得吖，抑或你不嬲都唔記得㗎？" } }, { "doc_id": 51, "seg_id": 60, "translation": { "en": "A:Now (I) do not remember the previous – now (I) do not quite remember.", "zh-HK": "答：而家唔記得咗之前一－－而家唔係好記得。" } }, { "doc_id": 51, "seg_id": 61, "translation": { "en": "Q: Right. But you – how about previously?", "zh-HK": "問：係，但係你－－之前呢？" } }, { "doc_id": 51, "seg_id": 62, "translation": { "en": "A:In fact, previously – my god, (I) have forgotten, (I) have forgotten.", "zh-HK": "答：其實之前－－死喇，唔記得咗添，唔記得咗。" } }, { "doc_id": 51, "seg_id": 63, "translation": { "en": "MR WONG:I would like to show him (his) previous police statement – that is, so that he can refresh his memory.", "zh-HK": "MR WONG：我想畀佢睇番佢之前嗰份嘅警方嘅口供嚟－－即係令佢可以回憶番。" } }, { "doc_id": 51, "seg_id": 64, "translation": { "en": "COURT:Well, let’s first see if he himself thinks that reading the statement will assist him.", "zh-HK": "官：睇下佢自己認為佢睇番口供對佢有冇幫助先喇。" } }, { "doc_id": 51, "seg_id": 65, "translation": { "en": "MR WONG:Yes", "zh-HK": "MR WONG：係。" } }, { "doc_id": 51, "seg_id": 66, "translation": { "en": "Q:If you read the statement, will it assist you in refreshing your memory of the incident?", "zh-HK": "問：如果你睇番份口供，你會唔會對你回憶番起件事件有幫助？" } }, { "doc_id": 51, "seg_id": 67, "translation": { "en": "A:(I) have to read it before (I) can tell.", "zh-HK": "答：要睇下先知。" } }, { "doc_id": 51, "seg_id": 68, "translation": { "en": "Q:Will that assist (you) or not?", "zh-HK": "問：係有幫助定係冇幫助？" } }, { "doc_id": 51, "seg_id": 69, "translation": { "en": "A:Yes.", "zh-HK": "答：有。" } }, { "doc_id": 51, "seg_id": 70, "translation": { "en": "MR WONG:Your Honour, I would like to show him the statement.", "zh-HK": "MR WONG：法官閣下，我想畀份口供佢睇。" } }, { "doc_id": 51, "seg_id": 71, "translation": { "en": "COURT:Mr Luk?", "zh-HK": "官：陸先生？" } }, { "doc_id": 51, "seg_id": 72, "translation": { "en": "MR LUK:Yes, Your Honour. What I heard from this witness just now is that he could not remember whether at that time he in fact – that means heard …", "zh-HK": "MR LUK：係，法官閣下，我頭先聽到佢呢位證人嘅說法就係話，佢都唔記得咗當時佢究竟有冇－－即係聽到…" } }, { "doc_id": 51, "seg_id": 73, "translation": { "en": "COURT:Well, so reading the statement can assist him – see if he remembered at that time.", "zh-HK": "官：咪睇番份口供咪可以幫助佢－－睇下佢當時記唔記得囉。" } }, { "doc_id": 51, "seg_id": 74, "translation": { "en": "MR LUK:Yes, yes, yes, alright, alright. I withdraw this, Your Honour.", "zh-HK": "MR LUK：係，係，係，好，好，我撤回番呢個，法官大人。" } }, { "doc_id": 51, "seg_id": 75, "translation": { "en": "Q:We give – in fact you have two statements, so I – ok, I now show you one statement. See if you can recognize whose statement it is?", "zh-HK": "問：我哋畀－－其實你有兩份口供嘅，咁我就－－嗱，我而家畀一份口供你睇，你睇下認唔認到係邊個嘅口供？" } }, { "doc_id": 51, "seg_id": 76, "translation": { "en": "COURT:What are you asking him?", "zh-HK": "官：你問佢乜嘢嘢呀，喺度？" } }, { "doc_id": 51, "seg_id": 77, "translation": { "en": "MR WONG:In fact, (I) wish to see – in fact, (I) wish to see if he can recognize that the statement and the signature are …", "zh-HK": "MR WONG：其實睇下想－－其實想睇下佢認唔認到口供同埋個簽名係…" } }, { "doc_id": 51, "seg_id": 78, "translation": { "en": "COURT:[The question is] whether (he) can remember the statement. What do (you) mean by whether (he) can recognize the statement?", "zh-HK": "官：記唔記到口供，咩嘢認唔認到口供呀？" } }, { "doc_id": 51, "seg_id": 79, "translation": { "en": "MR WONG:That means whether this statement is his own statement, and he – then I will ask him whether the signatures below are his own signatures.", "zh-HK": "MR WONG：即係呢份口供係咪佢自己嘅口供，同埋佢－－跟住我會問下佢下面有啲簽名係咪佢自己嘅簽名。" } }, { "doc_id": 51, "seg_id": 80, "translation": { "en": "Q:Mr Chan, yes, can you recognize whose statement this is?", "zh-HK": "問：陳生，係，你認唔認得呢份邊個人嘅口供呀？" } }, { "doc_id": 51, "seg_id": 81, "translation": { "en": "A:Well, my own statement.", "zh-HK": "答：本人口供囉。" } }, { "doc_id": 51, "seg_id": 82, "translation": { "en": "…", "zh-HK": "…" } }, { "doc_id": 51, "seg_id": 83, "translation": { "en": "Q:I would like you to read the statement, that is paragraph 10. Tell me when you have finished.", "zh-HK": "問：我想你睇番份口供，就係第10段，你睇完你話畀我知。" } }, { "doc_id": 51, "seg_id": 84, "translation": { "en": "A:Alright, I remember now.", "zh-HK": "答：好，我記得番。" } }, { "doc_id": 51, "seg_id": 85, "translation": { "en": "Q:Have you finished reading it?", "zh-HK": "問：你睇完未？" } }, { "doc_id": 51, "seg_id": 86, "translation": { "en": "A:(I) have read (it).", "zh-HK": "答：睇咗。" } }, { "doc_id": 51, "seg_id": 87, "translation": { "en": "Q:Yes. Can you say again – perhaps (you) close, close the statement first.", "zh-HK": "問：係，你可唔可以再講一次－－或者冚埋，冚埋份口供先。" } }, { "doc_id": 51, "seg_id": 88, "translation": { "en": "COURT:After you have finished reading this statement, does it assist your memory?", "zh-HK": "官：你睇完呢份口供對你個記憶有冇幫助？" } }, { "doc_id": 51, "seg_id": 89, "translation": { "en": "A:Yes.”", "zh-HK": "答：有。”" } }, { "doc_id": 51, "seg_id": 90, "translation": { "en": "Mr Lee, Counsel for the applicant on appeal against conviction, submits that when PW1 gave the police statement he had already forgotten whether he remembered “who said someone had made a report to the police”, and therefore the judge should not have allowed him to read his witness statement. Mr Lee seems to mean that PW1’s memory of the incident had become blurred by the time he gave his witness statement.", "zh-HK": "代表申請人處理定罪的李大律師陳詞說，當控方第一證人向警方提供證人供詞時，已經忘記了他是否記得「邊個講有人報咗警」，所以法官不應批准控方第一證人閱讀其證人供詞。李大律師的意思似乎是控方第一證人在提供證人供詞時，對事情的記憶已經模糊不清。" } }, { "doc_id": 51, "seg_id": 91, "translation": { "en": "In our judgment, Mr Lee’s submission is, with respect, taking PW1’s evidence out of context. Viewing at his evidence as a whole, what he meant is obviously that when he gave his witness statement to the police he still remembered the course of the incident, but when he gave evidence in court he had to read the statement to refresh his memory. We see nothing wrong for the trial judge to allow him to do so.", "zh-HK": "本庭認為，李大律師的說法是對控方第一證人的口供斷章取義。綜觀控方第一證人的證供，他的意思明顯是，當他向警方提供證人供詞時，他仍然記得事情發生的經過，但在庭上作供時，需要閱讀供詞來恢復記憶。原審法官批准他這樣做，並無出錯。" } }, { "doc_id": 51, "seg_id": 92, "translation": { "en": "The second ground of appeal is that the trial judge erred in allowing the prosecution to ask, or failing to stop them from asking, leading questions during the re-examinations of PW1 and PW3. Having read the relevant questions and answers, we are unable to agree with Mr Lee’s submission.", "zh-HK": "第二個上訴理由是，原審法官錯誤容許或沒有制止控方於覆問控方第一和第三證人時，提出引導性的詰問。看過有關問答後，本庭不能認同李大律師的主張。" } }, { "doc_id": 51, "seg_id": 93, "translation": { "en": "The third ground of appeal is that there was insufficient evidence to prove that the applicant and the unknown assailants had a common intention to do Luk grievous bodily harm. Mr Lee submits that, taken at its highest, the prosecution evidence only served to prove the applicant’s presence at the scene. Furthermore, the prosecution had adduced no evidence to prove that the applicant knew and was aware that other assailants would assault Luk with fists and kicks and glass bottles. Other assailants might, without the applicant’s knowledge and on their own initiatives, have done something on Luk which went beyond the original joint enterprise or agreement to commit the offence.", "zh-HK": "第三個上訴理由是，案中並無足夠證據證明申請人與不知名的施襲者有共同意圖使陸身體受嚴重傷害。李大律師說控方的證據最多只能證明申請人身在案發現場而已，並且控方並沒有證據證明申請人是在知情下及意識到其他襲擊者會向陸拳打腳踢，並且用玻璃樽來施襲。其他襲擊者可能在申請人不知情下及自發性地向陸展開越過原定的共同犯罪計劃或協議的行為。" } }, { "doc_id": 51, "seg_id": 94, "translation": { "en": "With respect, Mr Lee’s submission has in our judgment wholly disregarded the evidence of PW1 and PW2 and the CCTV footage. As the trial judge held, far from being an onlooker, the applicant acted as the leader throughout the assault incident. Luk was attacked by the applicant’s underlings for as long as 5 to 6 minutes, and the assault continued even after Luk lost consciousness. The applicant was present all along and in the end ordered the assailants to leave.", "zh-HK": "本庭認為，李大律師的陳詞根本上是完全漠視控方第一及第二證人的口供以及閉路電視錄影帶的片段。正如原審法官所裁定的，申請人並非一旁觀者，他在整個襲擊事件中擔演領導的角色，陸被他的手下襲擊長達5至6分鐘，即使陸失去知覺，襲擊仍然繼續，過程中申請人一直在場，最後指令襲擊者離開。" } }, { "doc_id": 51, "seg_id": 95, "translation": { "en": "As none of the grounds of appeal have been made out, we have refused to grant leave to the applicant to appeal his conviction.", "zh-HK": "上訴理由無一成立，本庭因此拒絕定罪上訴許可。" } }, { "doc_id": 51, "seg_id": 96, "translation": { "en": "Application for leave to appeal sentence", "zh-HK": "針對刑罰的上訴" } }, { "doc_id": 51, "seg_id": 97, "translation": { "en": "The applicant has advanced two grounds of appeal.", "zh-HK": "申請人提出兩個上訴理由。" } }, { "doc_id": 51, "seg_id": 98, "translation": { "en": "The first ground of appeal is that although the injuries sustained by the victim were serious, the sentence imposed on the applicant is, compared to other cases of wounding with intent, manifestly excessive. In our judgment, it cannot be a correct sentencing approach to compare sentences imposed in different cases: each case involves its own set of facts and little purpose will be served by comparing sentences imposed on the basis of different facts.", "zh-HK": "第一個上訴理由是，案中受害人傷勢雖重，但申請人的判刑明顯較其他有意圖傷人案件過重。本庭認為，把不同案件的判刑比較，並非對量刑的正確處理方法，因為每宗案件的情節不盡相同，比較判刑的意義不大。" } }, { "doc_id": 51, "seg_id": 99, "translation": { "en": "In HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of Appeal reiterated that “wounding with intent” is a serious offence which warrants a deterrent sentence, and that the major sentencing considerations are:", "zh-HK": "上訴庭在HKSAR v Chan Chun Tat [2013] 6 HKC 225一案中，重申「有意圖而傷人」罪的嚴重性，判刑必須具阻嚇性，而法庭須考慮的重要因素為：" } }, { "doc_id": 51, "seg_id": 100, "translation": { "en": "(1)the extent to which the assault was premeditated;", "zh-HK": "(1)襲擊的預謀程度；" } }, { "doc_id": 51, "seg_id": 101, "translation": { "en": "(2)the motivation underlying the assault;", "zh-HK": "(2)襲擊的背後動機；" } }, { "doc_id": 51, "seg_id": 102, "translation": { "en": "(3)the mental or emotional state of the assailant;", "zh-HK": "(3)襲擊者的精神狀態；" } }, { "doc_id": 51, "seg_id": 103, "translation": { "en": "(4)whether the assailant was acting under the influence of alcohol or drugs;", "zh-HK": "(4)襲擊者有否受酒精或藥物影響；" } }, { "doc_id": 51, "seg_id": 104, "translation": { "en": "(5)whether the assault was committed by the assailant alone or as part of a group;", "zh-HK": "(5)襲擊是個人或群體行為；" } }, { "doc_id": 51, "seg_id": 105, "translation": { "en": "(6)the type of weapons employed;", "zh-HK": "(6)使用的武器性質；" } }, { "doc_id": 51, "seg_id": 106, "translation": { "en": "(7)the level of force used;", "zh-HK": "(7)武力使用的程度；" } }, { "doc_id": 51, "seg_id": 107, "translation": { "en": "(8)the injuries caused to the victim;", "zh-HK": "(8)受害人的傷勢；" } }, { "doc_id": 51, "seg_id": 108, "translation": { "en": "(9)the effect of the assault upon the victim (and those close to him or her).", "zh-HK": "(9)襲擊帶給受害人（及親人等）的影響。" } }, { "doc_id": 51, "seg_id": 109, "translation": { "en": "The Court of Appeal also pointed out that in respect of certain acts of violence, such as those involving triad gang attacks, the court must issue strong denunciation and impose sentences with a greater deterrent effect.", "zh-HK": "上訴庭亦指出對於某些暴力行徑，如牽涉三合會的團伙襲擊，法庭必須作出強烈讉責及施以更強的阻嚇性刑罰。" } }, { "doc_id": 51, "seg_id": 110, "translation": { "en": "Furthermore, the aggravating factors for this type of wounding case are: (1) the defendant was the principal offender; (2) the assault was committed in company; (3) the assault was unprovoked; (4) the assault took place in a public place; (5) the assault went on after the victim had fallen down; (6) the assault went on after the victim became unable to defend himself; (7) the victim suffered serious and lasting injuries; (8) at the police interview, the defendant misled the police as to the facts, indicating a lack of remorse. See paragraph 13 of the Reasons for Judgment in HKSAR v Chui Kwok Ming, CACC 380/2013 (unreported), 27 March 2014.", "zh-HK": "另外，在這類傷人案件的加刑因素有：（一）被告是事件的主腦；（二）有其他人夥同行兇；（三）襲擊並非源於挑釁；（四）在公眾地方作案；（五）事主在跌倒後繼續受襲；（六）事主在失去防衛能力後繼續受襲；（七）事主受到嚴重及永久傷害；（八）被告被接見時就案情誤導警方，顯示沒有悔意。見香港特別行政區訴徐國明，CACC 380/2013（未經彙報），2014年3月27日的判案理由書第13段。" } }, { "doc_id": 51, "seg_id": 111, "translation": { "en": "As the trial judge pointed out when passing sentence, the sentence for the offence of “wounding with intent” is determined mainly by reference to the facts of the particular case. The present case is serious in that the attacks launched by the applicant’s group had caused very serious injuries to Luk. All the medical reports point to only one conclusion: Luk sustained very serious injuries. As a result of the attack, Luk suffered from cognitive impairment as well as other injuries and was hospitalized for 40 days to undergo various operations and treatments. When he was discharged, the doctor expected that it would take one to two years for him to recover. He could not be sure if Luk suffered from permanent trauma.", "zh-HK": "誠如原審法官於判刑時指出，就「有意圖而傷人」罪的判刑，主要是取決該案的特有案情。而本案的嚴重之處，乃是申請人一伙人的襲擊，引致陸遭受非常嚴重的傷害。綜觀所有的醫療報告，只有一個結論：陸受到的傷害非常嚴重。陸因這次襲擊，除其他傷勢外，認知功能亦受到損害，須留院40天，接受不同的手術及治療；在出院時，醫生預期陸需1-2年才能康復，亦不能確定陸有否永久性的創傷。" } }, { "doc_id": 51, "seg_id": 112, "translation": { "en": "On 4 April 2014, the applicant submitted a letter from the Department of Justice dated 3 March 2013, which confirmed that on 30 July 2012 Luk was arrested by the Australian police for the offences of conspiracy to import dangerous drugs and possession of dangerous drug of a commercial quantity with intent. The applicant submits that Luk in fact did not become permanently disabled as a result of the attack, otherwise he could not have committed the offences abroad. In our view, this is no more than an unfounded speculation.", "zh-HK": "2014年4月4日，申請人呈交了一封由律政司寄出的信(日期為2013年3月3日)，證明陸在2012年7月30日遭澳洲警方拘捕，罪名是串謀進口毒品及意圖管有份量可作商業用途的毒品。申請人指陸根本並無因受襲而受到永久傷殘，否則他不可能越洋犯案。本庭認為這只是毫無根據的猜測。" } }, { "doc_id": 51, "seg_id": 113, "translation": { "en": "The applicant also relies on the medical report dated 11 March 2013, but that report serves little purpose because it merely consolidates the previous medical reports without providing an update of Luk’s condition.", "zh-HK": "另外，申請人依賴一份2013年3月11日的醫療報告，但這報告作用不大，因為它只是把先前的醫療報告綜合而已，並沒有提及陸最新的情況。" } }, { "doc_id": 51, "seg_id": 114, "translation": { "en": "The trial judge also pointed out that another serious feature of the present case, namely the modus operandi of the assailants. The applicant, along with the assailants, forcibly took Luk away from the bar in the public gaze and dragged him out to the street where they jointly attacked him, who was unarmed, with fists and kicks and glass bottles. On PW2’s evidence, Luk did move his body when he was dragged out from the building, and subsequently he no longer had any body movement, but the assailants continued the assault by attacking him on the head with glass bottles and stepping on his head with their feet. As the trial judge described, the assailants were cold-blooded and turned a blind eye to the law.", "zh-HK": "原審法官亦指出本案另一嚴重之處，即兇徒行兇的手法。申請人帶同那些行兇者，於酒吧眾目睽睽下強行帶走陸，並將他在地上拖行至街外，合眾人之力以拳腳及玻璃樽襲擊手無寸鐵的陸。根據控方第二證人的證供，陸被拖出大廈時是有郁動的，不過後期沒有任何動作，但襲擊者仍然繼續以玻璃樽襲擊他的頭部，及以腳「踏」他的頭部。如原審法官所描述，兇徒冷血、目無法紀。" } }, { "doc_id": 51, "seg_id": 115, "translation": { "en": "Moreover, it is clear from all the evidence that the applicant was not only a member of the group of assailants but was their “leader”. Both PW1’s evidence and the CCTV footage show that the applicant was the person who gave orders. Therefore, although he himself did not attack Luk, he was obviously more culpable than the other assailants.", "zh-HK": "再者，所有證據清楚顯示申請人不單是該行兇團伙的一員，他更是「領導者」。無論是控方第一證人的證言，或是閉路電視錄像，申請人均是發號施令的人物。因此，雖然申請人並無親手向陸施以襲擊，但他在本案的罪責明顯比其他行兇者更加嚴重。" } }, { "doc_id": 51, "seg_id": 116, "translation": { "en": "The second ground of appeal is that in the present case there is no clear evidence that the attack had anything to do with a triad society.", "zh-HK": "第二個上訴理由是，本案並無清晰的證據證明襲擊與黑社會有關。" } }, { "doc_id": 51, "seg_id": 117, "translation": { "en": "In our judgment, this ground cannot be made out because someone from the applicant’s group had shouted, “Sun Yee On is [xxx] almighty in Tsim Sha Tsui!”. Also, the modus operandi of the applicant and his accomplices did smack of triad elements. Therefore, the trial judge did not err when he said in passing sentence that the present case obviously smacked of triad elements.", "zh-HK": "本庭認為，這個理由不能成立，因為申請人一伙曾有人大喊：“新義安真係響尖沙咀大x晒！”，而且申請人及其同伙的犯案手法，的確帶有黑社會的色彩，所以原審法官在判刑時指本案有明顯黑社會色彩並無犯錯。" } }, { "doc_id": 51, "seg_id": 118, "translation": { "en": "For the above reasons, we have also dismissed the applicant’s application for leave to appeal his sentence.", "zh-HK": "因此，本庭亦拒絕判刑的上訴許可申請。" } }, { "doc_id": 51, "seg_id": 119, "translation": { "en": "Mr Derek Lai, Assistant Director of Public Prosecutions (Acting) of the Department of Justice, for the respondent", "zh-HK": "答辯人：由律政司署理助理刑事檢控專員黎劍華代表" } }, { "doc_id": 51, "seg_id": 120, "translation": { "en": "Mr Dick Lee, instructed by Shea & Co, Damien, for the applicant (re appeal against conviction)", "zh-HK": "申請人（定罪）：由佘英輝律師行轉聘大律師李國輔代表" } }, { "doc_id": 51, "seg_id": 121, "translation": { "en": "Mr S.K. Khattak (Kelly Lam), instructed by Shea & Co, Damien and assigned by the Legal Aid Department, for the applicant (re appeal against sentence)", "zh-HK": "申請人（判刑）：由法律援助署委派佘英輝律師行轉聘大律師林沙文代表" } }, { "doc_id": 52, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案書：" } }, { "doc_id": 52, "seg_id": 2, "translation": { "en": "The Applicant was charged with one count of “Dealing with property known or believed to represent proceeds of an indictable offence”, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455. After a trial before Deputy District Judge A. Wong (as he then was), the Applicant was convicted of the offence and sentenced to 2 years and 3 months imprisonment. She applies for leave to appeal against the conviction and the sentence.", "zh-HK": "申請人被控一項「處理已知道或相信為代表從可公訴罪行的得益的財產」罪，違反《有組織及嚴重罪行條例》(香港法例第 455 章) 第 25(1) 及 (3) 條。案件經區域法院暫委法官黃崇厚(當時官階)審理後，申請人被裁定罪名成立及被判入獄兩年三個月。申請人就定罪及刑期提出上訴許可申請。" } }, { "doc_id": 52, "seg_id": 3, "translation": { "en": "The facts", "zh-HK": "案情" } }, { "doc_id": 52, "seg_id": 4, "translation": { "en": "The Applicant is a 40-year-old woman and her former husband is Fok Chi Ho (transliteration).", "zh-HK": "申請人是一名 40 歲的女子。霍志豪是她的前夫。" } }, { "doc_id": 52, "seg_id": 5, "translation": { "en": "On 19 April 2007, the Hong Kong Police Force was informed that Fok was arrested by Shenzhen Public Security Bureau for trafficking in dangerous drugs. On the same day, the Hong Kong Police Force went to the Applicant’s residence to conduct investigations.", "zh-HK": "2007 年 4 月 19 日，香港警方獲知霍志豪因販運毒品被深圳公安局拘捕。香港警方於同日到申請人的住所進行調查。" } }, { "doc_id": 52, "seg_id": 6, "translation": { "en": "The Applicant had three bank accounts with the following banks:", "zh-HK": "申請人擁有三個銀行戶口：" } }, { "doc_id": 52, "seg_id": 7, "translation": { "en": "Hongkong and Shanghai Banking Corporation (an individual account) (Account A);", "zh-HK": "香港滙豐銀行(個人名義)(戶口A)；" } }, { "doc_id": 52, "seg_id": 8, "translation": { "en": "Hongkong and Shanghai Banking Corporation (a joint account in the names of the Applicant and her son) (Account B);", "zh-HK": "香港滙豐銀行(申請人與她的兒子聯名)(戶口B)；" } }, { "doc_id": 52, "seg_id": 9, "translation": { "en": "Bank of China (an individual account) (Account C).", "zh-HK": "中國銀行(個人名義)(戶口C)。" } }, { "doc_id": 52, "seg_id": 10, "translation": { "en": "On 16 April 2007, a sum of HK$2,500,000 was deposited into Account A. The Applicant admitted to the police that this sum was deposited by Fok.", "zh-HK": "2007 年 4 月 16 日，一筆 HK$2,500,000的款項被存入戶口A。申請人向警方承認這筆款項是由霍志豪存入的。" } }, { "doc_id": 52, "seg_id": 11, "translation": { "en": "On 17 April 2007, the Applicant withdrew HK$300,000 and US$120,000 from Account A.", "zh-HK": "2007 年 4 月 17 日，申請人從戶口A提取了 HK$300,000及 US$120,000。" } }, { "doc_id": 52, "seg_id": 12, "translation": { "en": "On 18 April 2007, the Applicant withdrew HK$20,000 from Account A.", "zh-HK": "2007 年 4 月 18 日，申請人從戶口A提取了 HK$20,000。" } }, { "doc_id": 52, "seg_id": 13, "translation": { "en": "On 19 April 2007, the Applicant withdrew HK$800,000 from Account A. Pursuant to Fok’s instructions, the Applicant gave HK$800,000 and US$120,000 to Fok’s mother, and handed HK$300,000 to a male foreigner. She also brought HK$20,000 to Shenzhen for Fok.", "zh-HK": "2007 年 4 月 19 日，申請人從戶口A提取 HK$800,000。申請人指她遵照霍志豪的指示將HK$800,000及 US$120,000交給霍志豪的母親、將HK$300,000交給一名外籍男子及前往深圳將 HK$20,000交給霍志豪。" } }, { "doc_id": 52, "seg_id": 14, "translation": { "en": "The particulars of the offence are that between 1 January 2005 and 19 April 2007, the Applicant dealt with a total of HK$4,205,925.30 through her three bank accounts. The Prosecution alleged that within the period of 28 months specified in the charge and in addition to the HK$2,500,000 mentioned in paragraph 5, other deposits in the total sum of HK$2,626,900.53 were paid into her three bank accounts respectively. During this period, withdrawals amounting to HK$2,178,959.95 were made. Excluding the Applicant’s salaries, loans and money she obtained from other sources during the period, for which explanations had been offered, a total of HK$1,705,925.30 was paid into her bank accounts. This sum and the aforesaid HK$2,500,000.00 constitute the basis of the present charge.", "zh-HK": "控罪指申請人在 2005 年 1 月 1 日至 2007 年 4 月 19 日期間利用她三個銀行戶口處理了共 HK$4,205,925.30的款項。控方指在涉及控罪的 28 個月內，除了上述第五段的 HK$2,500,000 外還有共HK$2,626,900.53的款項被分別存入申請人的三個戶口內，而在這段期間有HK$2,178,959.95 被提走了。撇除申請人在該段期間所獲得的薪金、借貸及其他來源已被解釋的款額，申請人的銀行戶口共有 HK$1,705,925.30 的入帳，該筆款項與上述的 HK$2,500,000.00構成了本控罪的基礎。" } }, { "doc_id": 52, "seg_id": 15, "translation": { "en": "Since the Applicant was investigated by the police, she made 9 records of interview to the police to explain the sources of the deposits into her accounts and the whereabouts of the withdrawals. She said all monies were connected with Fok and she only acted upon his instructions to deal with the monies. She had no idea that the monies represented proceeds of Fok’s illegal activities.", "zh-HK": "申請人被警方調查後，分別在九份會面記錄中向警方解釋戶口各項存款與提款的來源及去向。申請人指有關款項都是與霍志豪有關的，她只是遵照霍志豪的指示去處理金錢。她不知道有關款項是霍志豪從事非法勾當得來的。" } }, { "doc_id": 52, "seg_id": 16, "translation": { "en": "The Applicant’s defence", "zh-HK": "申請人的答辯" } }, { "doc_id": 52, "seg_id": 17, "translation": { "en": "The Applicant gave evidence in her own defence and called a witness. She said she got married with Fok in Canada in 1989 and settled there after their marriage. They got divorced in 1993 and the Applicant returned to work in Hong Kong in 1994. In 1996, the Applicant went back to Canada to help Fok with his restaurant business. Their son was born in 1997.", "zh-HK": "申請人亦有作供自辯及傳召證人。申請人指她與霍志豪於 1989 年在加拿大結婚，婚後定居加拿大。兩人於 1993 年離婚。申請人於 1994 年返回香港工作。1996 年，申請人返回加拿大協助霍志豪經營酒樓生意。1997 年申請人為霍志豪產下一名兒子。" } }, { "doc_id": 52, "seg_id": 18, "translation": { "en": "In 1998, Fok closed his restaurant business and the Applicant then returned to work in Hong Kong. Later Fok also returned to Hong Kong but they lived separately. Their son was looked after by Fok. The Applicant brought the son back to her home in 1999 to take care of him. Between 1999 and 2005, Fok returned to Canada again to run his restaurant business. In early 2005, the Applicant knew that Fok had come back to Hong Kong. Though they did not live together, they met at least twice a month as the Applicant wanted Fok to see his son.", "zh-HK": "1998 年，霍志豪結束加拿大的酒樓生意，之後申請人就返回香港工作。霍志豪其後也返回香港，但兩人分開居住，他們的兒子就由霍志豪照顧。申請人於 1999 年將兒子接回自己家中照顧。在 1999 年至 2005 年期間，霍志豪再回加拿大經營酒樓生意。到了 2005 年初，申請人獲知霍志豪返回香港。雖然兩人不是一起居住，但申請人因要讓霍志豪與兒子見面，因而兩人每個月至少會見面兩次。" } }, { "doc_id": 52, "seg_id": 19, "translation": { "en": "The Applicant claimed that she did not know what Fok did for a living after his return to Hong Kong, except that she heard that he was engaged in investment business. The Applicant said that as Fok had to travel frequently to and fro Shenzhen, Macau and Hong Kong, she had to bring her son to different places to meet Fok. She witnessed Fok winning HK$600,000 in a Macau casino and heard him making money from soccer gambling.", "zh-HK": "申請人聲稱她不知道霍志豪回港後幹甚麼工作，只聽聞過他做投資生意。申請人指霍志豪經常穿梭深圳、澳門和香港三地，她需要帶兒子到不同的地方與霍志豪見面。她曾目睹霍志豪在澳門賭場贏了 HK$600,000和也聽聞他賭波贏了錢。" } }, { "doc_id": 52, "seg_id": 20, "translation": { "en": "In October 2005, the Applicant demanded that Fok should take up his responsibility as a father and assist her to buy a residential property for her and her son. Fok agreed to it. The Applicant bought a residential property worth about HK$2,100,000. Fok only agreed to pay 5% of the property price. The Applicant bought the property with the money Fok gave her and the mortgage loan she obtained from a bank. The monthly installment was HK$13,800. In 2005 and 2006, in an attempt to increase her odds of getting a property mortgage loan from the bank, she made a few substantial deposits into the account in order to increase the credit balance in her bank account. Later, the Applicant wanted to buy another property. But she was unable to complete the transaction and suffered the loss of a down payment of HK$200,000. During the period, Fok occasionally gave the Applicant HK$10,000 to HK$20,000 as household expenses.", "zh-HK": "2005 年 10 月，申請人要求霍志豪負上父親的責任，協助她購買居所給她和兒子居住。霍志豪同意。申請人購買了一所價值約 HK$2,100,000的住宅。霍志豪只答應付出該樓價的5%，申請人就以霍志豪給她的款項和銀行的按揭貸款來購入該單位，每月供款 HK$13,800。她在2005 年至 2006 年期間為了提高向銀行申請樓宇按揭的機會就進行了數次的大額存款以祈增加戶口的存款數目。之後，申請人又打算購買另一個單位，但該項交易失敗，令她損失逾 HK$200,000的訂金。在這段期間，霍志豪間中會給申請人 HK$10,000 至 HK$20,000 作為家用。" } }, { "doc_id": 52, "seg_id": 21, "translation": { "en": "The Applicant alleged that Fok started doing his own business when he was still a student. He had borrowed large sums of money from the Applicant and her relatives. The loans remained outstanding up to the present. In 1996, Fok put forward the proposal of running a restaurant in Canada. The Applicant and her family raised a capital of HK$1,000,000 in total and loaned it to Fok. However the restaurant was closed down in 1997. In 2003, Fok became the shareholder of three restaurants in Canada.", "zh-HK": "申請人指霍志豪在讀書時已經開始做生意。他曾向申請人和她的親屬借下巨款，至今仍未全部清還。1996 年，霍志豪提出在加拿大經營酒樓生意的計劃。申請人和她的家人共籌集了 逾HK$1,000,000的資金借給霍志豪，但該間酒樓於 1997 年結業。2003 年，霍志豪再成為加拿大三間酒樓的股東。" } }, { "doc_id": 52, "seg_id": 22, "translation": { "en": "The Applicant emphasized in her evidence that she did not know the amounts were connected with illegal activities and she did not know that Fok had been arrested until the police went up to her premises. The Applicant admitted that most of the cash she withdrew from the bank accounts was handed over to Fok. In other words a substantial part of the deposits went eventually to Fok. As for the transfers, some were made to the account of the Applicant’s mother, some were to the personal accounts of the Applicant, and a few were made to the cousin of Fok and his current girlfriend. As for the majority of the remaining transfers, the payees of which remained unknown.", "zh-HK": "申請人的證供強調她不知道有關的款項是與非法勾當有關的，她只是當警方登門時才知道霍志豪已被拘捕。申請人承認她從銀行戶口提取的大部分現金都是交給霍志豪，即存入的款項中不少是落入霍志豪的手中。至於轉帳交易，部分轉帳到申請人的母親的戶口、部分就轉帳到申請人自己的戶口、數次轉帳到霍志豪的表弟和他的現任女友的戶口，而其餘大部分轉帳的收款人是誰就不得而知。" } }, { "doc_id": 52, "seg_id": 23, "translation": { "en": "Legal principles", "zh-HK": "法律原則" } }, { "doc_id": 52, "seg_id": 24, "translation": { "en": "Neither the Prosecution nor the Defence disputed the legal principles relating to the charge. The Applicant’s acts in dealing with the monies clearly fulfilled the actus rea of “dealing” as alleged in the charge. The crux of the matter was the “mens rea” of the charge. It is stated therein that the Applicant “knew or had reasonable grounds to believe” that the monies in question represented proceeds of an indictable offence. In proving the charge, the prosecution did not have to prove that the property in question was in fact the proceeds of an indictable offence. See: Oei Hengky Wiryo v. HKSAR (No. 2) [2007] 1 HKLRD 568. The Prosecution in the present case did not adduce any evidence in this regard. As for the mens rea, the Prosecution’s case was not that the Applicant “knew” that the property was the proceeds of an indictable offence, but that the Applicant had “reasonable grounds to believe” the property to be the proceeds of an indictable offence.", "zh-HK": "控辯雙方對控罪的法律原則沒有爭議。申請人處理金錢的行為明顯符合控罪所指「處理」的犯罪行為。本案的重點是控罪的「犯罪意圖」。控罪是指申請人「知道或有合理理由相信」有關的款項是從可公訴罪行的得益的財產。控方在舉證時是無須證明有關的財產確實是從可公訴罪行的得益，見：Oei Hengky Wiryo v. HKSAR (No. 2) [2007] 1 HKLRD 568。本案控方亦沒有提供這一方面的證據。關於犯罪意圖控方不是指申請人「知道」有關的財產是從可公訴罪行獲得的利益而是說申請人有「合理理由相信」有關的款項是從可公訴的罪行獲得的得益。" } }, { "doc_id": 52, "seg_id": 25, "translation": { "en": "When the court determines whether a defendant has the “reasonable grounds to believe”, it has to take into account two factors. The first factor is an objective one, namely whether a reasonable person with common sense and in his right thinking (“a reasonable man”) will think that the circumstances suffice to cause him to believe that the money is the proceeds of an indictable offence. The second factor is a subjective one, namely whether the defendant knows the existence of those circumstances that will cause him to believe that the money is the proceeds of an indictable offence.", "zh-HK": "在決定一名被告人是否有「合理的理由相信」這個概念時法庭是需要考慮兩點。第一點是客觀的，即一名具常識、有情理和正當思維的人士(‘合理人’)會否認為有關的情況是足以令人相信有關款項是從可公訴罪行的得益。第二點是主觀的，即被告人是否知道有關情況的存在，致令他相信有關的款項是從可公訴罪行的得益。" } }, { "doc_id": 52, "seg_id": 26, "translation": { "en": "If the Prosecution can prove the above two factors, the court is entitled to find that the defendant has the requisite mens rea for the charge. The Prosecution does not have to prove that the defendant “actually believes” that the money involved represents the proceeds of an indictable offence. See HKSAR v. Ma Hu Jiang [2007] 4 HKLRD 285. The court described the legal provision as “harsh”.", "zh-HK": "只要控方能夠證實這兩點，法庭便可以裁定被告人是有該控罪的犯罪意圖，控方是無須證明被告人是「確實相信」有關的款項是從可公訴罪行的得益，見：HKSAR v. Ma Hu Jiang [2007] 4 HKLRD 285。法庭以「嚴厲」這形容詞來描述這條法例。" } }, { "doc_id": 52, "seg_id": 27, "translation": { "en": "Reasons of findings", "zh-HK": "裁決原因" } }, { "doc_id": 52, "seg_id": 28, "translation": { "en": "Deputy Judge Wong found the Applicant guilty of the charge for the following reasons:", "zh-HK": "黃法官裁定申請人罪名成立的原因如下：" } }, { "doc_id": 52, "seg_id": 29, "translation": { "en": "The Applicant dealt with Fok’s money transactions through her own personal bank accounts. Under the circumstances, why did Fok not open his own personal bank account? Any normal person in this contemporary world who needs to deal with a lot of money transactions and chooses not to open a bank account though he is in business, the reason must be to conceal his money transactions and how much money he has. A reasonable man will surely believe that the monies are the proceeds of an indictable offence.", "zh-HK": "申請人以自己的銀行戶口處理與霍志豪有關的金錢往來，在這情況下，為何霍志豪本人不開設一個銀行戶口？一個正當的人在現代社會生活需要處理那麼多金錢，而且還是在做生意的情況下不開設戶口一定是為了不讓別人知道他的金錢往來及存有多少金錢。一名合理人必會相信這原因是金錢源自可公訴罪行。" } }, { "doc_id": 52, "seg_id": 30, "translation": { "en": "It will be highly unconvincing to suggest that the reason for not opening a bank account is due to the type of business involved, such as a restaurant business requiring its transactions to be settled in cash or the avoidance of debt collection by banks.", "zh-HK": "若說不開設戶口的原因是因為做某類生意，例如酒樓需要以現金來交易或為免銀行追債等都是極之牽強的藉口。" } }, { "doc_id": 52, "seg_id": 31, "translation": { "en": "The lending of blank cheques by the Applicant for Fok’s use would also cause a reasonable man to believe that the monies relating to the cheques were proceeds of an indictable offence.", "zh-HK": "申請人借空白支票給霍志豪使用同樣會令一名合理人相信有關支票涉及的款額是源自可公訴罪行。" } }, { "doc_id": 52, "seg_id": 32, "translation": { "en": "The Applicant claimed that she deposited large sums of money into the account to facilitate her loan application when she was buying a property. Her claim was unbelievable because the sums of money were withdrawn within a short of period which contradicted her purpose of making the deposits.", "zh-HK": "申請人聲稱在購買樓宇期間把大量金錢存入戶口的原因是方便貸款之說亦不可信，因為這些款項在很短時間內已被提走。這與她存入款項的目的不符。" } }, { "doc_id": 52, "seg_id": 33, "translation": { "en": "The Applicant dealt with the monies in an irregular way. She neither withdrew cash in one go nor withdrew at the upper limit allowed for a single transaction. This showed that the reason why she had to make numerous withdrawals was not because of the regulatory restrictions imposed on her. Moreover, if the monies were simply to be handed back to Fok, why should she make the withdrawals and transfers in such a circuitous way?", "zh-HK": "申請人處理金錢的手法異常，她並非一次過提取現金，而且每次提款也未達提款上限，這顯示她多次提款並非受規則所限。另外，若果這些款項只是交回給霍志豪，為何要以迂迴曲折的手法來提款及轉帳呢?" } }, { "doc_id": 52, "seg_id": 34, "translation": { "en": "If a reasonable man believes that Fok has no bank account of his own, he will surely have reason to believe that the monies dealt with by the Applicant were proceeds of an indictable offence. If a reasonable man does not think that Fok has no bank account, then the reason why Fok did not use his own account to deal with the monies will lead the reasonable man to have reason to believe that Fok was trying to conceal the proceeds of an indictable offence. Deputy Judge Wong found that the fact that the Applicant followed Fok’s instructions to remit money to his ex-employee in August 2005 showed that she at that moment already had the belief that Fok lacked a bank account.", "zh-HK": "如果一名合理人相信霍志豪是沒有銀行戶口的話，他一定有理由相信申請人所處理的金錢是來自可公訴罪行的得益。若果一名合理人不認為霍志豪是沒有銀行戶口的，那麼霍志豪不用自己的戶口來處理金錢的原因是會令這名合理人有理由相信他是為了掩飾所處理的可公訴罪行得益。黃法官裁定申請人在 2005 年 8 月遵照霍志豪的指示安排匯款給他的一名前僱員這一事就顯示她在那刻已有霍志豪沒有銀行戶口這個信念。" } }, { "doc_id": 52, "seg_id": 35, "translation": { "en": "Though the Applicant said that Fok was “poor one moment, rich the next” and that he would go his own way and behave unexpectedly, the obscure ways in which she dealt with large sums of money and the great risks that she took would lead a reasonable man to have the above belief. Even if Fok often had ups and downs in his finances, it would not stop a reasonable man from having some doubts on the way he made money.", "zh-HK": "雖然申請人說霍志豪「三更窮，五更富」，獨行獨斷，處事出人意表，但她以這樣隱晦手法和冒着這麼大的風險去處理巨額存款必然會令一名合理人產生上述的信念。就算霍志豪的經濟狀況經常大起大落，一名合理人對他的賺錢手法不會完全不產生懷疑的。" } }, { "doc_id": 52, "seg_id": 36, "translation": { "en": "Given the Applicant’s academic qualifications, experience and her relationship with Fok, she knew and realized that the amounts involved were proceeds of an indictable offence.", "zh-HK": "以申請人的學識、閱歷，以及她和霍志豪的關係，她是知道及意識到有關的款項是源自可公訴罪行的得益。" } }, { "doc_id": 52, "seg_id": 37, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 52, "seg_id": 38, "translation": { "en": "Evidence of the Defence Witness", "zh-HK": "辯方證人的證供" } }, { "doc_id": 52, "seg_id": 39, "translation": { "en": "One of the amended grounds of appeal was that Deputy Judge Wong failed to consider the evidence of the first defence witness.", "zh-HK": "經修訂的其中一項上訴理由指黃法官在作出有關裁決時沒有考慮辯方第一證人的證據。" } }, { "doc_id": 52, "seg_id": 40, "translation": { "en": "That witness was the younger sister of Fok who said in her testimony that Fok showed an interest in doing business since he was young and was so heavily in debts that he had to ask others to repay the debts for him. From 1996 to 1999, he borrowed money from his family members and he owed others HK$200,000. His indebtedness caused his family to be disturbed by a debt-collecting company. The Defence Witness said that in the early days Fok had a bank account in Canada but it was later cancelled. Transactions in his restaurant business were mostly settled in cash. In 2003 Fok invited his family members to a sightseeing trip in Canada and paid for all the expenses. He was then running three restaurants in Canada and appeared to lead an affluent life. In January 2003, Fok repaid HK$50,000 to her. But he later requested her to do shopping for him with the money and said that he would repay her in the future. In the same year, a sum of HK$201,000 was deposited into the bank account of the Defence Witness. She withdrew this sum of money and handed it to Fok. In February the same year, a sum of HK$260,000 was remitted into her account and Fok went to the bank with her to withdraw this sum of money. Fok told her that it was the capital for the restaurant and was remitted to him by his business partner. Later when Fok’s restaurant business faced a downturn, he borrowed money from his family. In November 2004, the Defence Witness and his elder brother remitted HK$160,000 to Fok. Meanwhile the Applicant also deposited HK$130,000 into the bank account of the Defence Witness and requested her to remit the money to Fok. Later Fok frequently borrowed small amounts of money from his family. Fok owed his mother as much as HK$300,000. Since 2005, Fok only occasionally borrowed a few thousand dollars from his family. In 2007, his family made repayments to financial companies for him. Her mother repaid HK$110,000 for him this year.", "zh-HK": "該證人是霍志豪的妹妹。她的證供說霍志豪在年輕時已經有興趣做生意及欠下巨款，並需要他人代他償還。在 1996 至 1999 年間他曾經向家人借錢及欠別人HK$200,000，致令家人受到收數公司的滋擾。辯方證人說霍志豪在加拿大早期是有銀行戶口的，但後來取消了戶口。他經營酒樓生意多以現金作交易。2003 年霍志豪邀請家人到加拿大遊玩，全部費用由他支付。當時他在加拿大經營三間酒樓，看來生活富裕。在 2003 年 1 月霍志豪曾償還 HK$50,000給她，但後來又要求她以這筆錢代他購物，說以後再還錢給她。同年有一筆 HK$201,000的金錢被存入辯方證人的戶口內，她提取了這筆款項，然後交給霍志豪。同年2 月，一筆 HK$260,000 的匯款存入她戶口，霍志豪和她一起到銀行提取這筆款項。霍志豪告訴她這筆款項是酒樓的資金，是他的生意拍檔匯給他的。後來霍志豪的酒樓生意不好，他向家人借錢。2004 年 11 月辯方證人和兄長將 HK$160,000 匯給霍志豪，當時申請人也將 HK$130,000 存入辯方證人的戶口，要求她將有關款項匯給霍志豪。之後，霍志豪經常向家人借小額金錢。霍志豪欠她母親的款項達 HK$300,000。2005 年之後，霍志豪只是間中向家人借數千元。在 2007 年，家人替他向財務公司還債。這年，她的母親替他償還了 HK$110,000。" } }, { "doc_id": 52, "seg_id": 41, "translation": { "en": "Mr. Joseph Tse S.C. leading Mr. Osmond Lam represented the Applicant and they submitted that when the court considered the belief of a reasonable man, it should at the same time take into account the evidence of the Defence Witness. The Applicant’s Counsel submitted that the status and evidence of this witness was similar to that of the Applicant; both were not clear about Fok’s affairs. She said in her evidence that she had dealt with two large sums of money for Fok through her own bank accounts in Hong Kong. She knew that Fok had in early years set up a bank account in Canada but it was later cancelled. She also knew that the transactions of his restaurant business were settled mostly in cash and stated that she had no reason to suspect that Fok had cheated her or that he had been involved in illegal activities. The Applicant’s Counsel submitted that Deputy Judge Wong did not cite the evidence of this witness in his analysis of the evidence when determining the case.", "zh-HK": "代表申請人的謝華淵資深大律師及林國輝大律師指法庭在考慮一名合理人的信念時必須同時考慮辯方證人的證供。申請人律師指這名證人的身份及證供與申請人相約，她和申請人一樣對霍志豪的事不甚清楚。她供稱曾在香港透過自己的銀行戶口代霍志豪處理過兩筆巨額款項，她知道霍志豪早年在加拿大有開設銀行戶口，但後來取消了戶口，她知道他經營酒樓多以現金作交易，她說她沒有理由懷疑霍志豪欺騙她或他從事不法的勾當。申請人律師指黃法官在分析證供以作出裁決時並沒有引用這名證人的證供。" } }, { "doc_id": 52, "seg_id": 42, "translation": { "en": "When a reasonable man considers the belief in question, the Defence Witness’s and the Applicant’s similar evidence in this regard should surely be taken into account. But be that as it may, this Court does not consider that it is a sufficient ground of appeal. The reason is that the crux of the matter hinged on the frequent deposits and withdrawals of large sums of money into and from the Applicant’s accounts since April 2005. The irregular transactions were different from what occurred in 2003 when the Defence Witness allowed Fok to use her bank account. A reasonable man could rely on the transactions after 2005 to determine the mens rea in question.", "zh-HK": "一名合理人在考慮有關的信念時當然是要考慮辯方證人與申請人所作出的相約證供，但就算如此，本庭也不認為這是一項充分的上訴理由，原因是本案的關鍵在於自 2005 年 4 月後申請人的銀行戶口有大額款項頻密地進行提存。這異常的交易情況有別於辯方證人在 2003 年讓霍志豪使用她的戶口時的情況。合理人是可以根據2005年之後的交易情況來裁定有關的犯罪意圖。" } }, { "doc_id": 52, "seg_id": 43, "translation": { "en": "Applicant’s records of interview", "zh-HK": "申請人的會面記錄" } }, { "doc_id": 52, "seg_id": 44, "translation": { "en": "In addition, the Applicant argued that Deputy Judge Wong had not dealt with the evidence she gave in the 9th Record of Interview where she claimed that she had helped Fok to deal with his monies in the 1990’s.", "zh-HK": "另外，申請人指黃法官亦沒有處理申請人在第九份的會面記錄中聲稱她曾在九十年代協助霍志豪處理金錢這項證供。" } }, { "doc_id": 52, "seg_id": 45, "translation": { "en": "The Applicant alleged in her 9th Record of Interview that since the 1990’s (i.e. between 1996 and 1998), she knew that Fok began to engage in business. She had started to help him to deal with his monies since then. Therefore when Fok asked her to deal with the amounts in the present case between 2005 and 2007, she did not notice anything wrong.", "zh-HK": "申請人在第九份會面記錄中指她自九十年代開始(即 1996年至1998年期間)知道霍志豪開始做生意，當時她已經開始協助他處理金錢，因此，在 2005 年至 2007 年期間，當霍志豪叫她處理涉案款項時她不覺得有甚麼問題。" } }, { "doc_id": 52, "seg_id": 46, "translation": { "en": "This Court does not consider that it is a valid ground of appeal either. The way that the Applicant helped Fok to deal with his monies included signing blank cheques for him in advance. But she admitted that in the 1990’s she never handed large sums of cash to strangers nor sent large amounts of remittance to strangers in other countries. She admitted that in between 2005 and 2007, she acted in accordance with Fok’s instructions to hand large sums of cash to strangers, to make out cheques for him in advance and to send remittances on numerous occasions to foreign countries to people unknown to her. She thought the amounts involved came from “capital raising, loans from friends, investments or gambling” by Fok. She never asked Fok why so much money was deposited into her accounts and why she had to help him to deal with the amounts until the aforesaid HK$2,500,000 was deposited into her bank accounts. She then questioned Fok why he had such a large amount of money, but Fok told her that it was his own money. She did not pursue the matter and thought it was money he obtained from “capital raising, loans, investments or gambling”.", "zh-HK": "本庭亦不認為這是一項充分的上訴訴理由。申請人協助霍志豪處理金錢的方式包括預早簽發空白支票給他，但她承認在九十年代時不曾將大量的現金交給陌生人或者匯款到其他國家給陌生人。她承認在 2005 至 2007 年期間，她按霍志豪的指示將大量現金交給陌生人、預早開支票給他及多次匯款到外國給不認識的人士。她以為有關款項是來自霍志豪「集資、或者向朋友借、或者投資、或者是賭錢而獲得的」。她一直都沒有問霍志豪何以會有那麼多錢存入她的戶口及為何要她協助他處理有關款項，直至她的戶口被存入上述的HK$2,500,000，她才質問霍志豪為何他會有這筆巨款，但霍志豪告訴她這筆錢是他自己的，她就再沒有追問下去，她以為這筆錢是他集資、借款、投資或者賭錢得來的。" } }, { "doc_id": 52, "seg_id": 47, "translation": { "en": "When the Applicant gave evidence, she did not reiterate the point that she had helped Fok to deal with his monies since the 1990’s, and so when Fok asked her to help him to deal with his monies in 2005 to 2007, she did not find that there was anything wrong with what he said. It is not necessary for this Court to discuss whether this claim by the Applicant in her Record of Interview was admissible evidence or not because even if it was accepted and taken into account, it would not affect the safety of the conviction. As said above, the Applicant admitted in that Record of Interview of hers that the amounts that she had dealt with in the past were not as much as HK$4,200,000 that she dealt with between 2005 and 2007, and the number of deposits and withdrawals made was not so numerous either.", "zh-HK": "申請人在作供時沒有重複她在九十年已經開始替霍志豪處理金錢，以致在 2005 年至 2007 年當霍志豪再叫她替他處理金錢時，她不覺有甚麼問題這番話。本庭不需要討論申請人在會面記錄所說的這一番話可否被接納為證據，因為就算法庭接納及考慮這項證據也不會影響定罪的穩妥性，因為正如上文所說，申請人在該會面記錄內承認她以前所處理的金錢並不如 2005 年至 2007 年期間所處理達HK$4,200,000如此大的款額和提存的次數如此多。" } }, { "doc_id": 52, "seg_id": 48, "translation": { "en": "Gambling gains", "zh-HK": "賭款" } }, { "doc_id": 52, "seg_id": 49, "translation": { "en": "Moreover, the Applicant’s Counsel submitted that Deputy Judge Wong had erred when he refused to accept the Applicant’s evidence that she had seen Fok winning HK$600,000 in a Macau casino. This evidence was not disputed by the Prosecution at trial and the Prosecution did not cross-examine the Applicant on this either. This Court thinks that the conviction would not be rendered less safe by it because it only served to prove that Fok had occasionally won large sums of money. But it could not explain why he had to make use of the Applicant’s accounts to deal with the money in such a circuitous way.", "zh-HK": "另外，申請人律師指黃法官拒絕接納申請人曾見過霍志豪在澳門賭場贏得的 HK$600,000的證供是錯誤的。這項證供在原審時並沒有被控方挑戰，而控方亦沒有就這點盤問過申請人。本庭亦不認為這一點會削弱定罪的穩妥性，原因是這一點只可以證明霍志豪間中會獲得巨款，但這不能解釋他為何需要利用申請人的戶口及迂迴曲折的手法處理這些金錢。" } }, { "doc_id": 52, "seg_id": 50, "translation": { "en": "Facts as a whole", "zh-HK": "綜觀案情" } }, { "doc_id": 52, "seg_id": 51, "translation": { "en": "Taking the facts in the case as a whole, this Court considers that Deputy Judge Wong made the right inference. We consider that the strongest evidence in the case that would lead a reasonable man to conclude that the amounts in question were the proceeds of an indictable offence, and that would lead the Applicant to have such belief, was the irregular money transactions in her three bank accounts in that large sums of money were frequently deposited into or withdrawn from those accounts. The Applicant allowed Fok to make use of her three bank accounts to deal with his money transactions without even asking why. Within the relevant period, roughly a total of 70 transactions took place in Account A where a total of HK$4,200,000 was deposited into account A in cash, by cheques or ATM transfers. More than half of this amount was withdrawn in cash. During the aforesaid period, roughly 30 deposits were made into Account B, totaling HK$310,000, and then roughly 50 withdrawals were made to withdraw more than HK$280,000 of this amount. Most of the deposits and withdrawals were made in cash. As for Account C, more than HK$700,000 was deposited into the account and 90% of which was cash deposit. The majority part of this amount was withdrawn by cash cheques or transfers. Frequent deposits of large amounts of money, making deposits and withdrawals in a circuitous way, and regularly making deposits and withdrawals in cash were not normal business practices. There is a world of difference in what the Applicant and the Defence Witness did in the early years to help Fok to deal with the money transactions of his restaurant business and what was done to deal with the money over those 28 months. This Court also considers that the way she dealt with the HK$2,500,000, namely to hand HK$300,000 in cash to a stranger, was utterly against common sense. To do so would be troublesome, risky, and far from open and aboveboard. Furthermore, it was unreasonable, troublesome and risky for her to hand HK$800,000 and US$120,000 to Fok’s mother. The way she dealt with the amounts on both occasions seemed mysterious.", "zh-HK": "本庭認為綜觀案情，黃法官所作出的推斷是正確的。本庭認為案件最強力的證據讓一名合理人得出有關處理的款項是從可公訴罪行所得的利益的信念，而申請人亦是存有這個信念是因為她的三個銀行戶口內有巨額款項頻密地被提存及異常處理金錢的手法。申請人讓霍志豪運用她的三個銀行戶口來處理他的金錢交易，但卻沒有質疑他為何這樣做。戶口A在有關期間內總共約有70次分別以現金、支票及ATM 轉帳形式的存款，款額達約HK$4,200,000，這筆款額中超過一半是被人以現金形式提走。在上述期間戶口B約有30次存款，款額達HK$310,000.00，當中超過 HK$280,000約分50次被提走了，而大多數的存款及提款都是以現金形式進行的。至於戶口C，超過 HK$700,000 被存入該戶口，其中90%是以現金形式存入的，當中大多數的款項是以現金支票及轉帳形式被提走。那麼頻密的巨額存款、以迂迴曲折的手法處理提存款項及經常以現金存款和提款不是一般的正常商業交易的手法。申請人和辯方證人早年替霍志豪處理其酒樓生意的金錢與在這28個月內所處理的款額有天淵之別。本庭亦認為她處理那HK$2,500,000 的手法，即將HK$300,000 現金交給一名陌生人是完全超乎常理的，這樣做既麻煩、風險大，又不光明磊落。另外，她將 HK$800,000 及 US$120,000 交給霍志豪母親亦是不合常理、麻煩及風險大的做法。這兩次處理金錢的手法都帶有神秘色彩。" } }, { "doc_id": 52, "seg_id": 52, "translation": { "en": "This Court is of the view that the above evidence would lead a reasonable man to believe that the amounts involved were proceeds of an indictable offence. The Applicant dealt with the transactions in person, so the circumstances involved would cause her to believe that the amounts were proceeds of an indictable offence. She was merely refusing to accept the reality when she denied her knowledge.", "zh-HK": "本庭認為這些證據是會令一名合理人相信有關的款項是從可公訴罪行所得來的，申請人親自處理這些交易，有關的情況亦會令她相信這些款項源自可公訴罪行的得益，她否認知情只不過是拒絕接受事實而已。" } }, { "doc_id": 52, "seg_id": 53, "translation": { "en": "For the aforesaid reasons, this Court refuses her application for leave to appeal against conviction.", "zh-HK": "基於上述原因，本庭駁回針對定罪的上訴許可申請。" } }, { "doc_id": 52, "seg_id": 54, "translation": { "en": "Appeal against sentence", "zh-HK": "刑期上訴" } }, { "doc_id": 52, "seg_id": 55, "translation": { "en": "Deputy Judge Wong took 3 years imprisonment as the sentencing starting point. Having considered the Applicant’s personal background and other facts such as that she was a first offender and that she had been troubled by the offence for 2 years, Deputy Judge Wong gave her a discount of 9 months. She was eventually sentenced to 2 years and 3 months.", "zh-HK": "黃法官將刑期基準定為三年監禁，他在考慮過申請人的個人背景、初犯、案件的背景及申請人受控罪困擾了兩年之久等因素後給予她九個月的扣減，最終刑期為兩年三個月監禁。" } }, { "doc_id": 52, "seg_id": 56, "translation": { "en": "After the appeal hearing, this Court allows the Applicant’s application for leave to appeal against her sentence. Taking this application as the formal appeal, this Court orders the immediate release of the Applicant. The difference between the present case and an ordinary case of dealing with property that represents the proceeds of an indictable offence is that, as Deputy Judge Wong agreed, there was no evidence in the present case to suggest that the Applicant made a profit by dealing with the monies in question. Deputy Judge Wong thought that the Applicant agreed to deal with the monies mainly because of her relationship with Fok. She did so to protect the interests of their 12-year-old son. Deputy Judge Wong also accepted that although the Applicant used a small portion of the money deposited into her accounts for her own purpose and towards the purchase of a residential property, she did not do so with the intention to make a profit. The emphasis was on Fok’s responsibility to provide for the Applicant and their son, he being her ex-husband and the father of the son. The Applicant did not go through complicated procedures to deal with the remittances on her own accord. She merely acted upon Fok’s instructions. Deputy Judge Wong thought that this offence was an isolated incident and that the Applicant had acted out of her character.", "zh-HK": "本庭在上訴聆訊後批准申請人針對刑期的上訴許可申請，視申請為正式上訴及命令申請人即時釋放。本案與一般處理可公訴罪行得益的財產的不同之處是黃法官同意本案沒有證據顯示申請人在處理這些款項時從中獲利。黃法官認為申請人同意處理這些款項的主要原因是為了維持與霍志豪的關係，她這樣做是為了保障兩人十二歲的兒子的利益。黃法官亦接納申請人雖然為了自己及購買居所動用了少部分被存入她戶口的款項，但她這樣做並不是出於從中獲利的意圖。這重點在於霍志豪身為申請人的前夫及兩人所生的兒子的父親是有責任供養他們的。申請人沒有主動以複雜的程序來處理有關匯款，她只是遵照霍志豪的指示行事。黃法官認為申請人這次犯案是偶然及與她本來的性格不符。" } }, { "doc_id": 52, "seg_id": 57, "translation": { "en": "In view of the special circumstances in the present case, this Court considers that the Applicant should be given a higher discount in terms of her sentence.", "zh-HK": "本庭認為基於這些特殊因素，法庭是可以給予申請人較高的刑期扣減。" } }, { "doc_id": 52, "seg_id": 58, "translation": { "en": "Moreover, another mitigation factor that will allow this Court to give her a further discount is that although the Applicant did not plead guilty to the charge, she co-operated fully with the police since the police took over the case. When the police asked her to provide information, she immediately provided them with information and gave a total of 9 Records of Interviews to the police. In fact, the evidence that the Prosecution adduced against the Applicant came mostly from the information she had given to the police, and such information also formed the basis for the court’s determination on her mens rea.", "zh-HK": "另外，本庭認為可以再給予刑期扣減的求情因素是申請人雖然沒有認罪，但自從警方介入事件後，她充分與警方合作，當警方要求她提供資料時她亦即時向他們提供資料及一共提供了九份會面記錄予警方。其實這次控方針對申請人的證供大部分是來自申請人向警方提供的資料，而法庭是使用這些資料來考慮申請人有沒有犯罪意圖。" } }, { "doc_id": 52, "seg_id": 59, "translation": { "en": "In view of the special circumstances in the present case, this Court considers that the appropriate sentence should be imprisonment for about a year. On the day of hearing, the Applicant has served about 9 months imprisonment, and she is entitled to remission of sentence on the basis that she has behaved properly. In other words, she has served the 12 months term and this Court orders her immediate release accordingly.", "zh-HK": "基於本案特殊的因素，本庭認為適當的刑期是約一年的監禁。申請人在聆訊當日已經服刑約九個月，加上若申請人行為良好，她是會獲得假釋的，這即是她已服滿約十二個月的刑期，本庭因此命令申請人即時釋放。" } }, { "doc_id": 52, "seg_id": 60, "translation": { "en": "Mr. William Tam, Senior Assistant Director of Public Prosecutions, Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員譚耀豪代表。" } }, { "doc_id": 52, "seg_id": 61, "translation": { "en": "Mr. Joseph Tse S.C. leading Mr. Osmond Lam, instructed by the Tong Kan & Co., for the Applicant.", "zh-HK": "申請人：由簡松年律師行轉聘謝華淵資深大律師及林國輝大律師代表。" } }, { "doc_id": 53, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 53, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 53, "seg_id": 3, "translation": { "en": "The applicant of this case pleaded guilty to two charges: The first charge was assaulting a police officer in the due execution of his duty (“the assault police charge”), contrary to section 36(b) of the Offences Against the Person Ordinance, Cap 212, Laws of Hong Kong, and the second charge was trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, Laws of Hong Kong.", "zh-HK": "本案的申請人承認兩項控罪。第一項是「襲擊在正當執行職務的警務人員」罪(「襲警罪」)，違反《侵害人身罪條例》(香港法例第212章)第36(b) 條。第二項控罪是「販運危險藥物」罪，違反《危險藥物條例》(香港法例第134章)第4(1)(a)及(3)條。" } }, { "doc_id": 53, "seg_id": 4, "translation": { "en": "The facts were that on 10 September 2013 the police conducted an anti-narcotics operation in a building in Lower Wong Tai Sin Estate. The first prosecution witness (“PW1”) was instructed to stay at one end of the corridor of one of the floors to carry out observation, while his teammates were on the staircase between two floors, waiting to give support and assistance. At the material time, the applicant and the other defendant in the present case walked towards PW1, each holding an iron bar of about 1.5 feet long in their hands. PW1 revealed his police identity to them and demanded that they put down their weapons, but the other defendant swung his iron bar at PW1 and the applicant kicked PW1 in his left knee. However, both of them were subdued by PW1. Subsequently, the police searched the applicant’s dwelling place and found a packet which contained 29.92 grammes of ketamine.", "zh-HK": "案情顯示警方在2013年9月10日在黃大仙下邨一幢樓宇進行反毒品行動。控方第一證人負責留守在某層樓的走廊盡頭監視，他的同僚則駐守在樓層之間的樓梯支援。案發時第一申請人與同案的另一名被告手上分別持有一支約長1.5呎的鐵通走向控方第一證人。控方第一證人向他們表明警察身份及要求他們放下武器，但同案的另一名被告人用鐵通揮向控方第一證人，而申請人用腳踢控方第一證人的左膝。但兩人被控方第一證人成功制服。之後，警員到申請人的住所搜查及發現一包含有29.92克的氯胺酮。" } }, { "doc_id": 53, "seg_id": 5, "translation": { "en": "Terms of Imprisonment", "zh-HK": "刑期" } }, { "doc_id": 53, "seg_id": 6, "translation": { "en": "District Judge Anthony Kwok adopted 18 months as the starting point for the first charge, ie the assault police charge and reduced it by one third on account of the applicant’s guilty plea, resulting in a term of 12 months’ imprisonment for that charge. As for the charge of trafficking in a dangerous drug, according to the sentencing guidelines laid down in Secretary for Justice v Hii Siew Cheng（許守誠）& Another [2008] 3 HKC 323, the appropriate starting point for an amount of ketamine close to 30 grammes is 5 years. As the applicant claimed that four grammes of the 30 grammes or so ketamine was for his own use, the District Judge set the starting point at four years and eight months, ie 56 months. Since the applicant had given assistance to the law enforcing authorities, the District Judge reduced the sentence by half, making a term of 28 months. He further ordered that four months of the term of 12 months for the first charge be run concurrently with and that the remaining eight months be run consecutively to the sentence for the second charge. Accordingly, the applicant was to serve 36 months’ imprisonment for these two charges.", "zh-HK": "區域法院法官郭啟安就第一項「襲警罪」採用18個月為量刑基準，由於申請人認罪，給予三分之一的量刑扣減及該項刑期定為12個月監禁。至於「販運危險藥物」罪，根據Secretary for Justice v Hii Siew Cheng & Another [2008] 3 HKC 323 [許守誠] 案例所頒下的量刑指引，接近30克的氯胺酮的適當量刑基準為5年。由於申請人稱聲該約30克的氯胺酮，其中4克為他自用，故此郭法官將量刑基準定為4年8個月，即56個月。由於申請人曾經協助執法機關，故此郭法官給予二分之一的量刑扣減，而將刑期定為28個月。郭法官將第一項控罪12個月刑期其中4個月與第二項控罪同期執行而其餘8個月分期執行，故此申請人在兩項控罪中須服36個月監禁。" } }, { "doc_id": 53, "seg_id": 7, "translation": { "en": "The applicant applies for leave to appeal against sentence. The only argument he put forward is that the District Judge should have reduced the term of imprisonment in respect of the first charge by the same proportion.", "zh-HK": "申請人就刑期提出上訴許可申請，他唯一論點是郭法官應該就第一項控罪的刑期給予同等份量的扣減。" } }, { "doc_id": 53, "seg_id": 8, "translation": { "en": "Sentencing Principles", "zh-HK": "量刑原則" } }, { "doc_id": 53, "seg_id": 9, "translation": { "en": "According to Z v HKSAR (2007) 10 HKCFAR 183, it is the policy of the courts to take into account in mitigation of sentence useful assistance the defendant had given to the authorities and give an appropriate reduction from the sentence which the defendant would otherwise have received. The object of the policy is to encourage offenders to provide material assistance to the authorities for the prevention, detection and prosecution of crimes. The assistance rendered by a defendant will be taken into consideration by the court whether the information he provided concerns crimes for which he is being sentenced or other crimes unconnected to such crimes. In that case, the defendant pleaded guilty to some fraud charges and theft charges, and was sentenced to 5½ years’ imprisonment. He had provided the police with information that a number of illegal immigrants were coming to Hong Kong to commit [a] robbery with firearms. Later, the illegal immigrants were intercepted by the police. Although the defendant refused to be a witness, two of the persons arrested were convicted; one was convicted of aiding and abetting illegal immigrants to come to Hong Kong and the other was convicted of possession of a firearm and ammunition without a license. The Court of Final Appeal held that the defendant was entitled to a reduction of sentence.", "zh-HK": "根據Z對HKSAR (2007) 10 HKCFAR 183一案，法庭的政策是將被告人曾向當局提供有用協助一事納入為減刑因素，從而對該人本應接受的刑期作出適當的扣減。這政策旨在鼓勵人們向當局提供實質協助，以達致防止罪案、偵破罪案和檢控罪犯的目標，不論被告人所提供的資料是否關乎他被判刑的罪行抑或另一些無關的罪行，他所提供的協助都會獲法庭考慮。在該案，被告人承認「欺詐」及「盜竊」罪，並被判監禁五年半。被告人曾向警方提供資料，指多名非法入境者將前來香港干犯「持械搶劫」罪。後來，上述非法入境者被警方截獲，雖然被告人拒絕出任證人，但其中兩名被捕人士分別被判「協助及教唆非法入境者前來香港」罪及「無牌管有火器及彈藥」罪成立。香港終審法院裁定被告人可獲減刑。" } }, { "doc_id": 53, "seg_id": 10, "translation": { "en": "The cases before Z v HKSAR shows that the court took account of the fact that the material assistance provided by the defendant was only related to some of the charges he faced, and only reduced the sentences of those related charges. As for those unrelated charges, there was no reduction of the sentences, see: R v Heung Chi Keung [1991] 1 HKLR 353 and R v G [2010] EWCA Crim 3047.", "zh-HK": "在Z對HKSAR一案之前的案例顯示法庭因應被告給予的實質協助只與部分他面對的控罪有關，而只給予該些有關的判刑刑期扣減，其他不相關的控罪則沒有給予同樣的刑期扣減，見：R v Heung Chi Keung [1991] 1 HKLR 353及R v G [2010] EWCA Crim 3047。" } }, { "doc_id": 53, "seg_id": 11, "translation": { "en": "Our View", "zh-HK": "本庭意見" } }, { "doc_id": 53, "seg_id": 12, "translation": { "en": "In the present case, we consider that a more appropriate approach would have been to reduce the terms of both of the sentences by one half. However, we do not need to determine whether the District Judge had committed an error in principle by not giving the same one half reduction in relation to the assault police charge. The reason is that even assuming, for the sake of discussion, that an error in principle was involved, we still need to consider whether the total sentence passed by the District Judge was manifestly excessive. Since the two charges preferred against the applicant were of different nature, the sentences should undoubtedly be served consecutively. This is in line with the sentencing principles, but the District Judge also considered another sentencing principle which is equally important, ie the totality principle. Therefore, he ordered that only part of the sentence of the assault police charge be run consecutively to that of the charge of trafficking in a dangerous drug.", "zh-HK": "在本案，本庭認為更適當的做法是兩項刑期都採用一半的扣減，但本庭不需要裁決郭法官就「襲警罪」沒有給予同一的一半扣減是否犯了原則性旳錯誤，原因是就算為了討論而言，這涉及原則性的錯誤，本庭亦須考慮郭法官所判的整體刑期是否明顯過高。無疑，因為申請人面對的兩項控罪是不同性質，故此根據量刑原則，它們是應該分期執行，但郭法官同時考慮了另一項同樣重要的量刑原則，即「刑期整體性原則」，故此他只是把「襲警罪」的部分刑期與「販運危險藥物」罪的刑期分期執行。" } }, { "doc_id": 53, "seg_id": 13, "translation": { "en": "In the light of all the circumstances of this case and having considered mitigating factors favourable to the applicant, we hold that the three years’ imprisonment imposed by the District Judge was appropriate and was not manifestly excessive. For the above reasons, we dismiss the application.", "zh-HK": "綜觀整體案情，在考慮了本案對申請人有利的求情因素後，本庭認為郭法官所判的3年刑期是適當及沒有明顯過重之誤。基於上述原因，本庭駁回申請。" } }, { "doc_id": 53, "seg_id": 14, "translation": { "en": "The Applicant, acting in person, present.", "zh-HK": "答辯人：由律政司署理高級助理刑事檢控專員鄭凱聰代表。" } }, { "doc_id": 53, "seg_id": 15, "translation": { "en": "Mr Raymond Cheng, Senior Assistant Director of Public Prosecutions (Acting) of the Department of Justice, for the Respondent.", "zh-HK": "申請人：無律師代表, 親自應訊。" } }, { "doc_id": 54, "seg_id": 1, "translation": { "en": "Hon Poon J (giving the Reasons for Judgment of the Court):", "zh-HK": "高等法院原訟法庭法官潘兆初頒發上訴法庭判決理由書：" } }, { "doc_id": 54, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "前言" } }, { "doc_id": 54, "seg_id": 3, "translation": { "en": "The applicant was indicted of one count of trafficking in a dangerous drug and had been on trial twice in the High Court.", "zh-HK": "申請人被控一‍項「販運危險藥物」罪，並曾在高等法院兩次受審。" } }, { "doc_id": 54, "seg_id": 4, "translation": { "en": "The first trial hearing commenced on 27th February 2012. On 5th March of the same year, the applicant was convicted and sentenced to imprisonment for 23 years and 6 month. The applicant appealed against her conviction. On 3rd July 2013, the Court of Appeal allowed the appeal and ordered the case to be remitted for retrial.", "zh-HK": "第‍一次審訊在2012年2月27日開始，同年3月5日申請人被判罪成，並被判入獄23年6個月。申請人提出上訴，2013  年7月3日，上訴法庭判申請人上訴得直，但把案件發還重審。" } }, { "doc_id": 54, "seg_id": 5, "translation": { "en": "After retrial, the applicant was convicted for the second time and she was sentenced on 7th April 2014 to imprisonment for 23 years and 6 months. The applicant applied again for leave to appeal against conviction. Upon handing down the judgment on 12nd February 2015, we granted the applicant leave to appeal and, treating the application as the appeal proper, we allowed the appeal. We also quashed the conviction and sentence on the applicant.", "zh-HK": "經重審後，申請人第二次被裁定罪名成立，並在2014年4月7日被判入獄23年6個月。申請人再就定罪申請上訴許可。2015年2月12日，本庭頒下判案書，批准申請人之上訴許可，視之為正式上訴，並判上訴得直，撤銷申請人的定罪及刑期。" } }, { "doc_id": 54, "seg_id": 6, "translation": { "en": "The respondent sought for a retrial whilst the applicant opposed the retrial application.", "zh-HK": "答辯人要求重審，而申請人則反對。" } }, { "doc_id": 54, "seg_id": 7, "translation": { "en": "After hearing on 24th June 2015, we made an order for the case to be remitted to the Court of First Instance to be retried. We now give the reasons for our decision.", "zh-HK": "2015年6月24日，經聆訊後，本庭命令把案件發還原訟法庭重審。以下是決定的理由。" } }, { "doc_id": 54, "seg_id": 8, "translation": { "en": "Legal Principle", "zh-HK": "法律原則" } }, { "doc_id": 54, "seg_id": 9, "translation": { "en": "Section 83E (1) of the Criminal Procedure Ordinance provides:", "zh-HK": "《刑事訴訟程序條例》第83E(1) 條訂明：" } }, { "doc_id": 54, "seg_id": 10, "translation": { "en": "Where the Court of appeal allows an appeal against conviction and it appears to the Court of Appeal that the interests of justice so require, it may order the appellant to be retried.”", "zh-HK": "凡上訴法庭就針對定罪而提出的上訴判決得直和覺得為了司法公正而有所需要，上訴法庭可命令將上訴人重審。」" } }, { "doc_id": 54, "seg_id": 11, "translation": { "en": "As stipulated in section 83E(1) of the said ordinance, when the court decides whether or not to order for a retrial, the critical issue that needs to be considered is whether the interests of justice call for a retrial. And the interests of justice are not confined to the interests of the prosecutor and the accused in the particular case. They also include the interests of the public in Hong Kong that those persons who are guilty of serious crimes should be brought to justice and should not escape it merely because of a technical blunder by the judge in the conduct of the trial or his summing-up to the jury: See Ting James Henry v HKSAR.", "zh-HK": "第83E(1) 條列明，當法庭考慮是否重審時，關鍵的議題是，重審是否為了司法公正而有所需要。而司法公正的需要並非局限於控方和被告人在某宗案件裡的利益，還包括香港公眾的整體利益之一，即干犯嚴重罪行的人應該被繩之於法，而不應該因法官在審訊過程或引導陪審團時犯了技術性的錯誤而逍遙法外：見Ting James Henry v HKSAR。" } }, { "doc_id": 54, "seg_id": 12, "translation": { "en": "In examining whether the interests of justice so require, it is necessary for the court to consider the actual circumstances of the case as well as all the relevant factors, including the seriousness of the offence, the history of the proceedings, the evidence for both prosecution anddefence, the complexity or otherwise of the trial, the reasons for the success of the appeal, the lapse of time since the alleged offence and since the trial and the length of the sentence which the appellant may have served. Then it is necessary for the court to weigh the public interest in ensuring that those guilty of serious crime are brought to justice against the effects of putting a successful appellant through the ordeal of a retrial. If after all these matters have been considered, no reasonable prospect of a conviction after a new trial is demonstrated, retrial would not be ordered: See R v Holgate (No 2).", "zh-HK": "在審視司法公正是否有所需要時，法庭必須考慮涉案的實際情況和所有的相關因素，包括控罪的嚴重性、之前法律程序的過程、控辯雙方的證據、審訊是否複雜、上訴成功的原因、所涉控罪發生之日至今相隔的時間，審訊至今相隔的時間，以及上訴人已服刑期的長短。然後，法庭需要平衡干犯嚴重罪行的人應被繩之於法的公眾利益，和重審的艱苦經歷對一‍名上訴得直的被告人所帶來的後果。如果考慮過所有的因素後，法庭認為沒有合理的機會重審後上訴人會被定罪，便需拒絕命令重審：見R v Holgate (No 2)。" } }, { "doc_id": 54, "seg_id": 13, "translation": { "en": "In the present case, should we order a retrial, it would be a second retrial. Mr Leung, counsel acting for the applicant, submitted that the court in principle should not order a second retrial. He at one point even contended that the court could not order a retrial for the second time, citing the Mok Kin Kau v HKSAR in advancing his argument. However, we must emphasize that Mr Leung’s contention is wrong.", "zh-HK": "在本案，若本庭命令重審，這將會是第二次重審。代表申請人的梁‍大律師說，原則上法庭不應命令第二次重審，他一‍度甚至說法庭不能命令第二次重審。他援引Mok Kin Kau v HKSAR 以支持他的主張。本庭必須強調，梁‍大律師的觀點是錯誤的。" } }, { "doc_id": 54, "seg_id": 14, "translation": { "en": "In the case of Mok Kin Kau, the defendant was convicted twice of assault occasioning actual bodily harm by the magistrates. Each conviction was subsequently quashed on appeal. After the first trial hearing, the defendant was sentenced to two months’ imprisonment, suspended for 18 months; at the second trial hearing, he was sentenced to serve 200 hours of community service. When the case went to the appellate court the second time, the defendant had already served the term of his community service order. The judge of the Court of First Instance ordered a third trial, upon which the defendant took the case to the Court of Final Appeal. In the context of such unusual circumstances, the Court of Final Appeal upon applying the aforesaid legal principle, pointed out that the interests of justice have to be so special and compelling before an unusual course could be adopted by ordering a second retrial, which will place a defendant on trial for the third time after two concluded trials and successful appeals and after he had already served the whole of his sentence. Nevertheless, the Court of Final Appeal did not mention in its judgment that the court in principle could not order a second retrial. Hence, it does not support Mr Leung’s argument.", "zh-HK": "在Mok Kin Kau一‍案，被告人因襲擊引致他人身體實際傷害而兩次被裁判官判罪成，但兩次的定罪都因上訴得直而撤銷。被告人第‍一次審訊時被判監禁2個月，緩刑18個月；第二次審訊時被判200小時社會服務令。第二次上訴時，被告人已完成社會服務令。原訟法庭法官命令第三次審訊，被告人上訴至終審法院。在這樣特別的情況下，終審法院在引用上文提及的法律原則後，指出必須有特別且強而有力的司法公正需要，才可以採取不尋常的做法命令第二次重審，而使一‍位已經經過兩次審訊、兩次成功上訴及服完所有判罰的被告人面對第三次審訊。終審法院的判詞並沒有指原則上法院不可命令第二次重審，所以並不支持梁‍大律師的主張。" } }, { "doc_id": 54, "seg_id": 15, "translation": { "en": "On the contrary, relevant authorities expressly pointed out that the court has had the jurisdiction to order a second retrial. In R v Bell, it was necessary for the Court of Appeal of England to explore the issue of whether a second retrial or any further retrial would constitute abuse of process. Having examined the precedents in England, as well as authorities in other common law jurisdictions, the Court of Appeal of England noted that the principle which applied was best encapsulated in the observations of Lord Bingham l in the judgment delivered by him in Forrester Bowe v The Queen, as seen in the extract below:", "zh-HK": "反之，相關的案例表明法院有司法權力命令第二次重審。在R v Bell，英國的上訴法庭需要探討第二次及之後的重審是否構成濫用司法程序。上訴法庭審視過英國及其他普通法司法管轄區的案例典據後說，以下所引述Bingham勳爵在Bowe v R 的判詞把適用的法律原則總結得最清楚：" } }, { "doc_id": 54, "seg_id": 16, "translation": { "en": "“It is a common practice for prosecutors in England and Wales to offer no evidence against a defendant if two previous juries have been unable to agree… but that is no more than a convention, as recognised by the Court of Appeal… in R v Henworth [2001] 2 CR App R 4. It may well be that the prosecuting authorities, having failed to obtain a conviction even by a majority on two occasions, judge that a further trial will not have a reasonable prospect of culminating in a conviction. It is in the first instance for the prosecutor to judge whether, taking account of all relevant considerations, the public interest is better served by offering no evidence or by seeking a further re-trial. There is plainly no rule of law in this country which forbids a prosecutor from seeking a second re-trial…. There may of course be cases in which, on their particular facts, a second retrial may be oppressive and unjust…. Whether a second retrial should be permitted depends on an informed and dispassionate assessment of how the interests of justice in the widest sense are best served. Full account must be taken of the defendant’s interests. …. Account must also be taken of the public interest in convicting the guilty, deterring violent crime and maintaining confidence in the efficacy of the criminal justice system”.", "zh-HK": "英國和愛爾蘭的主控官一‍般在陪審團兩次都無法達成共識之後，均不會再提出證據指控被告人……然而此擧並非只是一‍項慣例，就正如上訴法庭在R v Henworth [2001] 2 Cr App R 4一‍案所確認的一‍樣。情況甚可能是檢控當局經過兩次的審訊，仍無法使過半數的陪審團作出裁定被告人罪名成立的裁定，因此判斷即使再次審訊，亦沒有合理希望把被告人定罪。主控官經考慮所有相關的因素後，首先會判斷什麽才是最符合公衆利益的做法：不再提出證據指控被告人，抑或申請再次重審案件。顯然而見，本國並沒有限制控方再次提出第‍二次重審的規定。……在某些案件的某些特定情況下，第‍二次重審可能是欺壓和不公平的舉措。……究竟應否批准第二次重審，法庭必須作出知情和冷靜的評估，得悉如何在最大程度上秉行公義，然後才可以作出決定。被告人的利益必須充分獲得考慮。……此外亦須考慮定罪所帶來的公衆利益，包括對暴力罪行的阻嚇作用，以及維持刑事司法制度功效的信心。」" } }, { "doc_id": 54, "seg_id": 17, "translation": { "en": "In the case of Bell, the Court of Appeal of England specifically pointed out that a second retrial should be confined to a very small number of cases in which a crime of extreme gravity had undoubtedly occurred, and the evidence that the defendant committed the crime on any fair minded objective judgment remained very powerful.", "zh-HK": "在Bell一‍案，英國上訴法庭特別指出，第二次重審只應在少數的案件中出現，此等案件涉及毫無疑問是已經發生的極爲嚴重的刑事罪行，而根據任何客觀公平的判斷而言，指控被告人犯罪的證據仍屬有力。" } }, { "doc_id": 54, "seg_id": 18, "translation": { "en": "In the recent case of HKSAR v Bian Zhenju, the applicant opposed the application for retrial, we ( differently constituted) nonetheless opined that in the interests of justice, it was necessary to order a third retrial. The applicant of that case trafficked in 3.45 kg of heroin hydrochloride by importing them from Kuala Lumpur into Hong Kong via the Hong Kong airport. She was sentenced to 27 years’ imprisonment, and by the time when the appeal was eventually allowed, she had already been jailed for more than four years. At that hearing, we had already stressed that the offence that the applicant was charged with, namely, trafficking in 3.45kg of heroin hydrochloride by importing them into Hong Kong was extremely serious.", "zh-HK": "最近，在HKSAR v Bian Zhenju，雖然申請人反對重審的申請，但本庭 (不同組成) 仍然認為為了司法公正需要作出第三次重審的命令。該案的申請人從吉隆坡販運3.45公斤海洛英經香港機場到港，被判27年監禁，最後上訴成功時被監禁已超過4年。本庭當時強調申請人面對的控罪，即販運3.45公斤海洛英進口香港，是極其嚴重。" } }, { "doc_id": 54, "seg_id": 19, "translation": { "en": "Undoubtedly, we are empowered with the jurisdiction under appropriate circumstances to order a second retrial, although it may be an unusual course to do so.", "zh-HK": "毫無疑問，本庭有司法權力，在適當的情況下，命令第二次重審，雖然此舉是不尋常的做法。" } }, { "doc_id": 54, "seg_id": 20, "translation": { "en": "The present case", "zh-HK": "本案" } }, { "doc_id": 54, "seg_id": 21, "translation": { "en": "In the present case, we had already considered the various factors below:-", "zh-HK": "在本案，本庭考慮過下面的因素：" } }, { "doc_id": 54, "seg_id": 22, "translation": { "en": "The offence involved in the present case was extremely serious. The applicant was alleged of trafficking in large quantities of dangerous drug, namely, 1.44 kilograms of mixture containing 0.96 kilogram of heroin hydrochloride by importing them from Malaysia into Hong Kong.", "zh-HK": "本案涉及的罪行十分嚴重，申請人被指販運大量危險藥物，即將內含0.96公斤海洛英鹽酸鹽的1.44公斤混合物從馬來西亞帶來香港。" } }, { "doc_id": 54, "seg_id": 23, "translation": { "en": "The applicant was arrested on 17th January 2011. As mentioned in the above, with her appeal allowed on 3rd July 2013, the applicant succeeded in having her conviction in the first trial hearing before another judge overturned on the ground that the trial judge had misdirected the jury. Then in the second trial hearing on 4th April 2014, the jury reached a unanimous verdict of finding the applicant guilty, and on 7th April of the same year, the applicant was sentenced to imprisonment for 23 years and 6 months.", "zh-HK": "申請人在2011年1月17日被捕。如上文指出，申請人在2013年7月3日上訴得直成功推翻第一‍次在另‍一法官席前的定罪，理由也是法官在引導陪審團時犯錯。之後在第二次審訊時，被陪審團在2014年4月4日一‍致裁定罪名成立，並在同年4月7日被判監禁23年6個月。" } }, { "doc_id": 54, "seg_id": 24, "translation": { "en": "The evidence adduced by both the prosecution and defence in this case was not complicated: it was the allegation of the prosecution that the applicant with knowledge brought with her to Hong Kong the luggage containing the dangerous drug hidden inside the secret compartment; on the other hand, the applicant said that the sample clothing was consigned to her by someone for her to bring to Mainland China inside the luggage she was carrying. She said that she had no knowledge that there was secret compartment in her luggage and that there was dangerous drug placed inside.", "zh-HK": "本案控辯雙方的證供並不複雜：控方指申請人在知情下把在暗格內藏危險藥物的行李箱帶來香港；而申請人則說她只是受人所托帶行李箱內的衣服樣板返回國內，她指對行李箱內有暗格和藏有危險藥物並不知情。" } }, { "doc_id": 54, "seg_id": 25, "translation": { "en": "We allowed the applicant’s appeal this time entirely because we were of the view that the trial judge had erred first in (a) not having adopted an objective approach when participating in cross-examination of the applicant whereby it would lead an informed bystander listening to the trial to conclude that the applicant had been deprived of a fair trial; and (b) regarding “shut eye” or on the issue of “constructive knowledge” had inappropriately misdirected the jury. Therefore, the success of the appeal was totally unrelated to the strength of the evidence of the prosecution or the conduct of the prosecution in the trial.", "zh-HK": "這一‍次申請人上訴得直完全是因為本庭認為原審法官犯錯：(a) 參與盤問申請人時沒有保持客觀態度而令一‍名聆聽案件及知情旁觀者認定申請人沒有獲得一‍個公平的審訊；及 (b) 錯誤地就「閉上眼睛」“shut eye” 或在「推定知情」“constructive knowledge” 的議題上不當地引導陪審團。因此，是次上訴得直與控方證供強弱或控方於審訊時的行為完全無關。" } }, { "doc_id": 54, "seg_id": 26, "translation": { "en": "The present case occurred on 17th January 2011, which was some four years ago. The last trial hearing was concluded about one year ago (7th April 2014) and the applicant had already also served about four years of sentence.", "zh-HK": "本案案發日 (2011年1月17日)，距今約4年，上一‍次審訊約在一年前完結 (2014年4月7日)，而申請人已服了約4年刑期。" } }, { "doc_id": 54, "seg_id": 27, "translation": { "en": "The case put forward by the prosecution was simple and straightforward, and the evidence adduced was sufficient. All the prosecution witnesses were able to attend court to give evidence when the case went on retrial, and the quantity of dangerous drug involved in the case was large ( nearly one kilogram of pure heroin). The defence did not dispute the fact that the applicant did carry with her the dangerous drug hidden in her luggage. The only contention between the parties was whether the existence of the dangerous drug was in her knowledge. This apparently was a factual dispute to be determined by the jury. Upon examining all the facts in this case, we concluded that there was reasonable prospect of a conviction.", "zh-HK": "本案控方案情簡單直接，證據充分，所有控方證人均能就重審作供，而且涉案的危險藥物份量龐大 (差不多一‍公斤純海洛英)，辯方並不爭議申請人確有帶藏有危險藥物的行李箱抵港，唯‍一爭議的是她對有關危險藥物的存在是否知情，這明顯是應交由陪審團決定的事實爭議。綜觀本案所有案情，本庭認為案件有合理的定罪機會。" } }, { "doc_id": 54, "seg_id": 28, "translation": { "en": "We had also considered the issue concerning the ordeal faced by the applicant if she has to be undergo a third trial. Regarding this point, Mr Leung did not put forward any substantial argument in his submission. It had come to our attention that the applicant due to the stress induced by the legal proceedings has been suffering from adjustment disorder syndrome, but after taking prescribed medication, her mental condition has already stabilized. Her mental ability had not been damaged nor was she suffering from any mental illness or other serious problem. Her mental condition also renders her fit for plea. For the particulars in this respect, one can refer to the relevant psychiatric and psychological reports. We considered that the mental condition of the applicant did not provide sufficient grounds for opposing the application of a second retrial. Mr Leung did not persist on any specific stance regarding this matter either.", "zh-HK": "本庭亦考慮過申請人要面對第三次審訊而要面對的艱苦經歷。在這一‍點上，梁‍大律師沒有甚麼實質陳詞。本庭得悉，申請人患上因法律程序促成的壓力而引致的適應障礙，但獲藥物配方後精神狀態已穩定下來。她並無智力受損或任何精神病或其他嚴重問題，而且精神上合適答辯。詳情見相關的精神報告及心理報告。本庭認為，申請人的精神狀況不足以否定第二次重審。梁‍大律師對此亦無特別堅持的立場。" } }, { "doc_id": 54, "seg_id": 29, "translation": { "en": "Having considered all the relevant factors, as well as weighing the public interest and the interest of the applicant, we concluded that it was proper to make an order for a second retrial.", "zh-HK": "在考慮過所有相關的因素，以及平衡過公眾利益和申請人的利益後，本庭認為命令第二次重審是合適的做法。" } }, { "doc_id": 54, "seg_id": 30, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 54, "seg_id": 31, "translation": { "en": "We therefore ordered the case to be remitted to the Court of First Instance to be retried, and ordered the applicant to be remanded in custody pending retrial.", "zh-HK": "因此，本庭命令把本案發還原訟法庭重審，並下令申請人要還押等候重審安排。" } }, { "doc_id": 54, "seg_id": 32, "translation": { "en": "Mr Edmond Lee, Senior Public Prosecutor of the Department of Justice, for the respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員李俊文代表。" } }, { "doc_id": 54, "seg_id": 33, "translation": { "en": "Mr Leung Chun Keung, instructed by Wong & Co. and assigned by the Legal Aid Department, for the applicant.", "zh-HK": "申請人：由法律援助署委派黃律師事務所轉聘梁振強大律師代表。" } }, { "doc_id": 55, "seg_id": 1, "translation": { "en": "Hon Poon J (giving Judgment of the Court):", "zh-HK": "高等法院原訟法庭法官潘兆初頒發上訴法庭判案書：" } }, { "doc_id": 55, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 55, "seg_id": 3, "translation": { "en": "This is an appeal arising out of a retrial.", "zh-HK": "這是一宗重審案件引發的上訴。" } }, { "doc_id": 55, "seg_id": 4, "translation": { "en": "The applicant Li Yan-hong was charged with a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. It was alleged that the applicant had trafficked in 1.44 kilogrammes of a mixture containing 0.96 kilogrammes of heroin hydrochloride on 17 January 2011 at the Hong Kong International Airport, Chek Lap Kok, New Territories, Hong Kong. In brief, the prosecution case was that four packets of dangerous drugs, which are the subject of the present case, had been seized by the customs from the suitcase being carried by the applicant who knowingly brought the suitcase to enter Hong Kong. The applicant pleaded not guilty to the charge with the defence that she was deceived into bringing the suitcase to Hong Kong and that she was in total ignorance of the fact that the dangerous drugs in question had been concealed in the suitcase.", "zh-HK": "申請人（李艷紅）被控一項販運危險藥物罪，違反香港法例第134章《危險藥物條例》第4(1)(a) 及 (3) 條。控罪指申請人於2011年1月17日，在香港新界赤鱲角香港國際機場，非法販運危險藥物，即內含0.96公斤海洛英鹽酸鹽的1.44公斤混合劑。簡言之，控方指海關人員在申請人所攜帶的行李箱內檢獲四包涉案的危險藥物，而申請人是在知情下攜帶該行李箱入境香港。申請人否認控罪，其辯解是她被人欺騙把行李箱帶來香港，而她是完全不知道行李箱內暗藏涉案的危險藥物。" } }, { "doc_id": 55, "seg_id": 5, "translation": { "en": "On 4 April 2014, the applicant was convicted unanimously after trial before A Chan J (“the trial judge”) and a jury. On 7 April 2014, the trial judge sentenced her to 23 years and 6 months’ imprisonment. Mr Leung Chun-keung, counsel for the applicant, made an application on her behalf, seeking leave to appeal against conviction.", "zh-HK": "申請人在高等法院原訟法庭陳慶偉法官（原審法官）會同陪審團席前受審。2014年4月4日，經審訊後，陪審團一致裁定申請人罪名成立。2014年4月7日，原審法官判處申請人入獄23年6 個月。申請人不服定罪，由梁振強大律師提出申請，要求獲准就定罪上訴。" } }, { "doc_id": 55, "seg_id": 6, "translation": { "en": "prosecution’s case", "zh-HK": "控方案情" } }, { "doc_id": 55, "seg_id": 7, "translation": { "en": "The prosecution called six witnesses. Their evidence can be summarized as follows:", "zh-HK": "控方傳召六名證人作證，他們的證供可簡述如下。" } }, { "doc_id": 55, "seg_id": 8, "translation": { "en": "On 17 January 2011 around 8:15 pm, the applicant arrived at the Hong Kong International Airport on AirAsia from Kuala Lumpur, Malaysia. At the arrival hall of the airport, Chief Customs Officer Ngan Wai-lan (PW1) stopped the applicant for inspection. The applicant was carrying a red suitcase at that time. After the applicant was brought into a “clearance room”, Customs Officer Ng Yuk-cheung (PW2) directed her to open the suitcase. He saw the applicant turn the dial of a combination lock, open the suitcase and take out her personal belongings. PW2 held the suitcase in his hand and found it to be very heavy, he therefore inspected the rim of the suitcase and spotted a piece of cardboard. PW2 lifted the cardboard and saw something in silver colour on the four corners of the suitcase. He pierced one of the packets with a bamboo skewer, and the skewer was stained with white powder, which tested positive for heroin in a quick drug test. PW2 then notified Customs Officer Lau Wing-chi (PW3) to arrest the applicant.", "zh-HK": "2011年1月17日晚上約八時十五分，申請人乘坐亞洲航空公司的航班由馬來西亞的吉隆坡飛抵香港國際機場，在機場入境大堂被控方第一證人海關總關員顏惠蘭截停作抽查；當時申請人手挽一個紅色行李箱。申請人被帶入一間搜查室後，控方第二證人關員吳毓祥示意申請人打開行李箱。他看見申請人轉動數字鎖，然後把行李箱打開，然後把她的個人物品取出來。控方第二證人手挽行李箱，覺得好重；於是檢查行李箱的圍邊，看見有一塊紙板。控方第二證人揭開紙板後看見行李箱四角有銀色東西，他用竹簽刺破其中一包，竹簽上沾有白色粉末。經過毒品快速測試後，白色粉末對海洛英呈陽性反應。控方第二證人遂於是知控方第三證人關員劉詠芝把申請人拘捕。" } }, { "doc_id": 55, "seg_id": 9, "translation": { "en": "The dangerous drug seized from the suitcase was 1.44 kilogrammes of mixture containing 0.96 kilogramme of heroin hydrochloride, of a street value of HK$1,046,880.00 in January 2011.", "zh-HK": "從行李箱搜獲的危險藥物是內含0.96公斤海洛英鹽酸鹽的1.44公斤混合劑，在2011年1月的零售價是港幣1,046,880.00 元。" } }, { "doc_id": 55, "seg_id": 10, "translation": { "en": "Video recorded interview", "zh-HK": "錄影會面記錄" } }, { "doc_id": 55, "seg_id": 11, "translation": { "en": "On 18 January 2011, the applicant voluntarily participated under caution in a video recorded interview conducted by Inspector Chan Wai-kam (PW6). The applicant’s testimony in court was by and large consistent with the account she gave in the interview.", "zh-HK": "2011年1月18日控方第六證人陳偉鑫督察替申請人進行錄影會面，申請人自願地在警誡下接受會見。申請人在會面中的陳述與她在庭上的證言大致相同。" } }, { "doc_id": 55, "seg_id": 12, "translation": { "en": "Defence case", "zh-HK": "辯方案情" } }, { "doc_id": 55, "seg_id": 13, "translation": { "en": "The applicant elected to give evidence but called no defence witnesses.", "zh-HK": "申請人選擇作供自辯，但沒有傳召其他辯方證人。" } }, { "doc_id": 55, "seg_id": 14, "translation": { "en": "It was the applicant’s testimony that she was from Sichuan with no criminal records. In February 2010, she got acquainted with an African male called David who ran a business of electronic components and since then there were occasions they met and talked. The applicant looked for David at his shop by visiting the address on the business card provided by him. She found that it was a shop selling clothes. In June 2010, David arranged to meet the applicant, asking her if she had got a passport and requesting her to take some clothing samples back to the mainland. David said that he tried to deliver clothing samples to the mainland in vain and hoped that the applicant could help him. As the applicant had just broken up with her boyfriend, she wanted to get away for a break and to broaden her horizons, she acceded to David’s request. The applicant did ask David whether the trip to Malaysia was for doing something illegal, and by ‘illegal’ she meant in mind being a “hostess”. David replied in denial. Subsequently, the applicant handed her passport to David for him to make visa arrangements for her.", "zh-HK": "申請人說，她是四川人，沒有任何刑事定罪紀錄。2010 年2月份，她認識一名非洲籍男士David，他從事電子零件生意。他們雙方有見面和傾談。申請人根據David所提供的名片地址到他的店舖找他，發現那裏是賣衣服的。2010年6月，David相約申請人，問她有沒有護照，並要求申請人從外地攜帶一些衣服樣辦返回內地。David說他曾試過把衣服樣辦運返內地但不成功，所以希望申請人能幫他。當時申請人和男朋友剛分手，她想出外散心和見識，所以答應David。申請人曾詢問David到馬來西亞是否做一些犯法的事，她心中所想的是做「小姐」，David否認。之後，申請人把護照交給David代為辦妥簽證事宜。" } }, { "doc_id": 55, "seg_id": 15, "translation": { "en": "From June 2010 to January 2011, the applicant made a total of five trips to Malaysia for each of which David gave her several hundred US dollars. On the first trip to Malaysia, the applicant followed David’s instructions to contact a black male called CY alias William by phone. CY gave the applicant a suitcase containing some clothing samples. The applicant took the suitcase back to the mainland and handed it to David. In August 2010, David asked the applicant to make a trip to the Philippines, but the applicant did not take any clothing samples back to the mainland on that occasion as she failed to get in touch with the local contact person. The arrangements made for the second and the third trips to Malaysia were similar to those on the first one, and David gave the applicant a reward of Renmenbi 10,000 in total for these two trips. Subsequently, David asked the applicant to introduce a friend of hers to take clothing samples from Southeast Asia. She therefore introduced a friend called Tang Dan-dan [transliteration] to David. In November 2010, the applicant made the fourth trip to Malaysia where happenings were similar to those of the three preceding trips.", "zh-HK": "2010年6月至2011年1月期間，申請人共五次去馬來西亞，每次David都會支付她數百美元。申請人首次去馬來西亞時，她依照David的指示，致電聯絡一名叫CY又名William的黑人。CY給申請人一個行李箱，內裏有衣服樣辦。申請人便攜帶這個行李箱返回內地交給David。2010年8月，David要求申請人去菲律賓，可是申請人未能聯絡當地的接洽人，所以沒有攜帶衣服樣辦返回內地。她第二和第三次去馬來西亞與首次的安排差不多。這兩次David給申請人共人民幣10,000.00元作酬勞。之後，David叫申請人介紹她的朋友去東南亞拿取衣服樣辦，申請人便介紹她的朋友唐丹丹給David認識。2010年11月，申請人第四次去馬來西亞，情況跟先前的三次相同。" } }, { "doc_id": 55, "seg_id": 16, "translation": { "en": "Regarding the trip in question, David contacted Tang Dan-dan first. On 29 December 2010, the applicant received a text message from a black man called Prince, telling her that someone would contact her. Subsequently, another black man called Best contacted the applicant, asking for the passports of the applicant and Tang Dan-dan. On 13 January 2011, Best called the applicant, saying that he had already bought air tickets for the applicant and Tang Dan-dan for them to travel to Malaysia in the afternoon. Best handed the passports, air tickets and US dollar banknotes to them. After their arrival in Malaysia, Best called the applicant, telling her that another black man called Mike would contact her on that occasion. On 17 January, Mike met the applicant at the hotel she stayed. Mike handed to her a suitcase containing some clothing samples. The applicant opened the suitcase in which she saw some folded clothes, and she also put her own clothes into it. The applicant did not notice if the suitcase had a combination lock. On the same day, the applicant took the suitcase back to Hong Kong.", "zh-HK": "就涉案的旅程，David先聯絡唐丹丹。2010年12月29 日，申請人收到一個名叫Prince的黑人發出的短訊，告訴申請人將會有人與她聯絡。之後，又有一個叫Best的黑人聯絡申請人，要求索取她和唐丹丹的護照。2011年1月13日，Best致電申請人表示已買了機票，下午時分申請人和唐丹丹可前往馬來西亞。Best把護照、機票和美金交給他們。到達馬來西亞後，Best致電申請人告訴她今次會有另外一個黑人Mike與她聯絡。1月17日，Mike在申請人住的酒店和她見面。Mike把一個內有衣服樣辦的行李箱交給申請人。申請人打開行李箱看見內裏已經有摺好的衣服，就把自己的個人衣服也放進裏面。申請人沒有留意行李箱有沒有數字鎖。同日，申請人攜帶該行李箱來港。" } }, { "doc_id": 55, "seg_id": 17, "translation": { "en": "Issue at trial", "zh-HK": "爭議議題" } }, { "doc_id": 55, "seg_id": 18, "translation": { "en": "As stated above, the issue in the present case was whether or not the applicant knew that the dangerous drug, the subject matter of the charge, was concealed in the suitcase she brought into Hong Kong on 17 January 2011.", "zh-HK": "正如上文指出，案件的爭論議題是申請人是否知道在2011年1月17日帶到香港的行李箱內藏有涉案的危險藥物。" } }, { "doc_id": 55, "seg_id": 19, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 55, "seg_id": 20, "translation": { "en": "Mr Leung, counsel for the applicant, advanced three grounds of appeal on her behalf:", "zh-HK": "梁大律師提出三個上訴理由：" } }, { "doc_id": 55, "seg_id": 21, "translation": { "en": "The first ground of appeal is that the trial judge erred in law as he failed to discharge the jury upon application by the defence, thereby causing the jury to be irremediably biased against the applicant and, depriving the applicant of a fair trial.", "zh-HK": "第一上訴理由是原審法官犯了法律上的錯誤，沒有應辯方的申請，解散陪審團，令陪審團對申請人產生不可補救的偏見，又令申請人不能得到有一個公平的審訊。" } }, { "doc_id": 55, "seg_id": 22, "translation": { "en": "The second ground of appeal is that the trial judge had by his intervention in the examination of the applicant entered the arena and it would have caused an informed bystander listening to the case to find that the applicant had not had a fair trial.", "zh-HK": "第二項上訴理由是原審法官參與盤問申請人時，沒有保持客觀的態度，令一名聆聽案件及知情旁觀者認定申請人沒有獲得一個公平的審訊。" } }, { "doc_id": 55, "seg_id": 23, "translation": { "en": "The third ground of appeal is that the trial judge misdirected the jury that they might infer, from the applicant’s attitude of having refrained from inquiry and shut her eyes to the obvious, and deliberately chosen not to make confirmation, that the applicant knew about the drug trafficking.", "zh-HK": "第三上訴理由是原審法官錯誤地引導陪審團可以把申請人對一些顯而易見的情況採取不聞不問、視若無賭、故意不去核實的態度來推論申請人是販運毒品的知情者。" } }, { "doc_id": 55, "seg_id": 24, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 55, "seg_id": 25, "translation": { "en": "Ground of appeal (1)", "zh-HK": "上訴理由（1）" } }, { "doc_id": 55, "seg_id": 26, "translation": { "en": "The applicant said in the video recorded interview that Tang Dan-dan and she were both hired by David to perform the duties of taking clothing samples from Malaysia to China via Hong Kong, and that Tang Dan-dan’s return trip was scheduled for two days after hers. At trial, the trial judge asked Inspector Chan Wai-kam (PW6) whether he followed up on the information provided by the applicant in relation to Tang Dan-dan. PW6 replied that Tang Dan-dan did not come to Hong Kong on or after the 19th day. Mr Leung then cross-examined PW6 on this point, to which PW6 repeated the same answer. On the following day, Mr Leung made an application to discharge the jury on the basis that PW6’s evidence had done grave injustice to the applicant. The trial judge refused the application on the ground that it would suffice, if sufficient directions were given to the jury. Upon the jury returning to the court, the trial judge directed them to forget PW6’s evidence given in regard to Tang Dan-dan. The foreman of the jury indicated that it was understood. The trial judge repeated the same direction to the jury in his summing up.", "zh-HK": "申請人在錄影會面中表示，唐丹丹和她同樣受僱於David，兩人職責同是從馬來西亞帶衣服樣辦經香港回國，只是今次唐丹丹的回程日期比申請人遲兩天。審訊時，原審法官向控方第六證人案件督察陳維蔭提問，他有否跟進申請人所提供有關唐丹丹的資料。控方第六證人回答說，唐丹丹沒有在19日或之後來到香港。梁大律師跟著就此盤問控方第六證人，他重覆同樣的說法。翌日，梁大律師向原審法官申請，要求解散陪審團，因為第六證人的證供對申請人嚴重不公，但申請遭原審法官拒絕。原審法官認為只需向陪審團發出足夠的指引便可。當陪審團再出席後，原審法官即時指引陪審團忘記控方第六證人有關唐丹丹的供詞，首席陪審員表示明白。原審法官在最後指引陪審團時，亦重覆同一的指引。" } }, { "doc_id": 55, "seg_id": 27, "translation": { "en": "Mr Leung contended before this court that after the jury had heard that Tang Dan-dan did not come to Hong Kong on the 19th day as scheduled, they would readily infer that Tang Dan-dan knew that the applicant had been arrested in Hong Kong. If Tang Dan-dan was also manipulated as was the applicant, she should have arrived at Hong Kong as scheduled. She did not come though, which showed that she also knew about the drug trafficking. Given the fact that Tang Dan-dan was introduced by the applicant, if Tang Dan-dan knew about the drug trafficking, how could the applicant be innocent? Mr Leung also argued that PW6’s evidence given in regard to Tang Dan-dan would have caused serious bias against the applicant among the jury. It was insufficient for the trial judge to simply direct the jury to “forget”. The failure of the trial judge to discharge the jury had done grave injustice to the applicant.", "zh-HK": "梁大律師向本庭力陳，陪審團聽到唐丹丹沒有在19日如期到港之後，不難聯想到這是因為她已知道申請人在港被捕，因為若唐丹丹也和申請人一樣只是被人利用，她理應依照原定計劃到港，她卻沒有這樣做，這顯示她是一名販運毒品的知情者；唐丹丹既是申請人介紹的，若她對販運毒品是知情，則申請人怎麼可能是無辜的。梁大律師說，第六證人有關唐丹丹的證供會令陪審團對申請人產生嚴重偏見，原審法官只是對陪審團作出「忘記」的指引並不足夠，他沒有解散陪審團對申請人造成嚴重的不公。" } }, { "doc_id": 55, "seg_id": 28, "translation": { "en": "The applicable legal principle is that whether or not to discharge a jury is a matter for the discretion of the court in the light of the actual circumstances of a particular case, and the court of appeal will not readily interfere with the court’s approach to the exercise of that discretion, see HKSAR v Nee Man Tik，CACV 220/2003, unreported, 28 October 2004, per Stock VP at paragraph 8. What the court of appeal is to be concerned is that under the actual circumstances of that particular case, whether injustice would have been caused to the defendant by not discharging the jury.", "zh-HK": "適用的法律原則是，法庭有酌情權決定是否需要散陪審團，至於如何行使這酌情權，法庭需要考慮案件當時的實際情況而定；對於原審法庭如何行使酌情權，上訴法庭不會輕易干涉：見HKSAR v Nee Man Tik，CACV 220/2003（未經彙報），2004年10月28日的判案書，上訴庭副庭長司徒敬的判詞第8段。上訴法庭要關注的是，在案件的實際情況下，到底沒有解散陪審團會否對被告人造成不公。" } }, { "doc_id": 55, "seg_id": 29, "translation": { "en": "In the present case, any contentions suggesting the mere fact that Tang Dan-dan did not to come to Hong Kong on the 19th day as scheduled has caused bias against the applicant must fail because the reasons leading to that fact could be manifold, and it does not mean or make one think that she was a drug-trafficker in the know. Furthermore, the way that the trial judge gave directions to the jury for twice that they had to forget PW6’s evidence on Tang Dan-dan, according to which the jury must have acted, was sufficient to cast away any doubts or concerns that the jury might have about the evidence in question. We consider that, in light of all the surrounding circumstances, the trial judge’s approach to PW6’s evidence on Tang Dan-dan was correct and the decision of not discharging the jury would not have caused injustice to the applicant. We would not interfere with this decision.", "zh-HK": "在本案中，唐丹丹沒有如期在19日到港可以有多種原因，不代表也不會另人聯想到她是知情的犯毒者，任何所謂的偏見並不成立。再者，原審法官兩次給予陪審團要忘記第六證人有關唐丹丹證供的指引，而陪審團亦必然有根據此指引行事；這足以驅走陪審團對這些證供可能有的疑慮或關注。本庭認為，綜觀所有有關情況，原審法官處理第六證人有關唐丹丹證供的做法正確，他沒有解散陪審團不會對申請人造成不公，本庭對此決定不會干涉。" } }, { "doc_id": 55, "seg_id": 30, "translation": { "en": "For this reason, Ground (1) must fail.", "zh-HK": "因此，第一個上訴理由不成立。" } }, { "doc_id": 55, "seg_id": 31, "translation": { "en": "Ground of appeal (2)", "zh-HK": "上訴理由（2）" } }, { "doc_id": 55, "seg_id": 32, "translation": { "en": "Mr Leung submitted that the trial judge put questions to the applicant in both examination-in-chief and cross-examination, including:", "zh-HK": "梁大律師指原審法官在主問和盤問時對申請人提出提問，包括：" } }, { "doc_id": 55, "seg_id": 33, "translation": { "en": "“Examination-in-chief", "zh-HK": "主問期間" } }, { "doc_id": 55, "seg_id": 34, "translation": { "en": "Well, do you find it strange? He was engaged in the electronics business, as we can see it from his business card, being engaged in whatchamacallit construction materials and the like, but what he asked you to bring back were clothes.", "zh-HK": "咁妳覺唔覺得奇怪呢？因為佢做電子生意架嘛，即係我哋睇到佢嘅卡片，做呢個咩嘢建築材料嗰啲咁嘅嘢，咁但係佢叫妳帶衫喎。" } }, { "doc_id": 55, "seg_id": 35, "translation": { "en": "But there was a chance that (you) were required to do something illegal?", "zh-HK": "但係有機會要（妳）做一啲非法嘅嘢架喎？" } }, { "doc_id": 55, "seg_id": 36, "translation": { "en": "…so you said that this David told you to go to Malaysia and not to wander around, because--and not to talk to any strangers. But you said that you were meant to make the trip out for a break and to get to see other places, whereas he told you not to wander around or talk to anyone, that would have run counter to the purpose of making the trip out, right?", "zh-HK": "…咁妳話呢位David就叫妳去咗馬來西亞，就唔好周圍走喇，因為--又唔好同陌生人講嘢，咁但係妳出國嘅目的就係去散心，去認識下其他嘅地方，咁佢叫妳又唔好周圍走，又唔好同人傾偈，咁咪同叫妳出去嘅目的咪相違背？" } }, { "doc_id": 55, "seg_id": 37, "translation": { "en": "Do you find it strange? David was so eager to have the suitcase back?", "zh-HK": "有冇覺得奇怪呢？David咁心急要番個喼？" } }, { "doc_id": 55, "seg_id": 38, "translation": { "en": "(500 US dollars of pocket money, hotel accommodation inclusive) isn’t it a meagre amount of money?", "zh-HK": "(500鈫美金零用錢，包埋住酒店)咁好少錢架咋噃？" } }, { "doc_id": 55, "seg_id": 39, "translation": { "en": "Well, do you find it strange? Why was an unwanted suitcase used on every occasion?", "zh-HK": "咁妳覺唔覺得有啲奇怪呢？點解次次都用唔用嘅箱？" } }, { "doc_id": 55, "seg_id": 40, "translation": { "en": "Well, do you find it a very good deal?..Why wouldn’t it occur to you? You got a pay rise once you asked your boss for it, why so good?", "zh-HK": "咁妳覺唔覺得好著數呢？…點解會冇諗？一問老闆加人工就加喎，咁好嘅？" } }, { "doc_id": 55, "seg_id": 41, "translation": { "en": "…why didn’t you know that your boyfriend--that is the David who courted you, was not in the mainland at that time? You saw him as frequently as twice a week. Why were you in total ignorance of the fact that he was-- you actually had no idea of his whereabouts?", "zh-HK": "…點解妳唔知道妳男朋--即係追妳嗰個David嗰陣時唔喺國內？妳同佢一個星期見兩次架喎，點解妳完全都唔知道佢原來都唔知道去咗邊度？" } }, { "doc_id": 55, "seg_id": 42, "translation": { "en": "Well, on the way back to Hong Kong, while you were on board a taxi or a coach with Dan-dan, have you ever discussed, “why shall we return at different times?”…as you made the trip out together, you should have made the trip back together as well….but in fact, when you returned on the 17th, you only saw half a suitcase of clothes, well, have you ever wondered why two persons were required to take back only half a suitcase of clothes?...even if the trip was made by only one person who would carry more baggage, I think it would be cheaper than a trip made by two, as you only needed to check in baggage, you just needed to pay anyway, when you went on the trip to carry baggage on your own, right? Now you two made the trip and each required as much as five to six thousands Renminbi, the reward. (Prosecutor: And also air tickets, My Lord.)", "zh-HK": "咁你哋有冇即係同丹丹喺坐的士，坐大巴落嚟香港嘅時候，有冇討論過「點解我哋兩個會唔同時間返嚟嘅？」…一齊去，咁梗係一齊返架嘛。…但係妳實際上17號返嚟嗰個時候，妳見到得半箱衫咋嘛，咁妳有冇諗下點解要兩個人去攞半箱衫返嚟？…一個人去攞多啲行李，我諗都平過兩個人去，妳寄艙咋嘛，還掂都要畀錢咋嘛，係咪？妳一個人去攞行李。妳兩個人去，要五六千鈫人民幣一個人架喎，報酬。（主控：仲有飛機票呢，閣下。）" } }, { "doc_id": 55, "seg_id": 43, "translation": { "en": "Well, that means apart from that person claiming himself to be a friend of David’s, in fact you were not clear about who he actually was, right?...I know, so you have only met once, on the occasion where you had some personal belongings handed over, how well would you have known him then?...right, I mean, you didn’t know whether he was a good person or a bad person, right? (a friend of David’s) And that necessarily meant that he was a good person?", "zh-HK": "咁即係除咗佢自稱David個friend之外，其實就真係佢哋究竟咩嘢人。妳都唔係好清楚架喎？…我知，咁妳咪見過一次囉，交收個人物品嗰個時候，咁有幾熟啫？…係囉，即係佢係好人唔好人妳唔知架喇？（David嘅朋友）就一定係好人架喇？" } }, { "doc_id": 55, "seg_id": 44, "translation": { "en": "…did you not fear that it was up to something, such as pirated copies and the like?", "zh-HK": "…妳唔驚有啲嘢，譬如盜版嗰啲咁？" } }, { "doc_id": 55, "seg_id": 45, "translation": { "en": "…(been to N7) the counter, even opened (the suitcase), at that time you did not know (there was a lock)?", "zh-HK": "…（去過N7）櫃檯，打開過（個行李箱）架喎，嗰陣妳都唔知（有個鎖）？" } }, { "doc_id": 55, "seg_id": 46, "translation": { "en": "But such a big fuss was made for you to bring back stuff from Malaysia and you even did not know if there was a lock?", "zh-HK": "但係勞師動眾要妳去馬來西亞帶嘢返嚟喎，妳連有冇鎖都唔知？" } }, { "doc_id": 55, "seg_id": 47, "translation": { "en": "…well, you have given an account on Dan-dan, right? In your record of interview, well, you also told us that in fact you intended to tell the Customs & Excise about the people who would pick you up in Guangzhou, right? But in the end, when the Customs & Excise asked if you had anything further to say, you did not tell them?", "zh-HK": "…咁妳就交代左丹丹喇，係咪？妳喺個會面紀錄嗰度，咁妳又話畀我哋聽，其實妳係想話畀海關聽廣州接妳嗰啲人喇，係咪？但係到最後。海關問妳仲有冇嘢想講嘅時候，妳又冇講嘅？" } }, { "doc_id": 55, "seg_id": 48, "translation": { "en": "Cross-examination", "zh-HK": "盤問期間" } }, { "doc_id": 55, "seg_id": 49, "translation": { "en": "Prosecutor:Well, when you gave him/her your passport, you had already decided to go to Malaysia, right? If not, you would not have given him/her your passport, right?", "zh-HK": "主控問：咁妳去畀個護照佢，妳已存心係去馬來西亞架喇，係咪？如果唔係，妳唔會畀護照佢喇，係咪？" } }, { "doc_id": 55, "seg_id": 50, "translation": { "en": "Defendant:It was not the case either. It was not exactly like this at that time…if David meant to cajole me into being a hostess, I definitely would not go…", "zh-HK": "被告：亦都唔係咁樣，當時亦都唔係完全咁樣架…如果David真係呃我去做小姐嘅話，咁我肯定唔去喇…" } }, { "doc_id": 55, "seg_id": 51, "translation": { "en": "Court:I know, but he certainly would not have answered you, “yes, I am cajoling you into being a hostess”, right?...Exactly! Well, I mean, in other words, you went there just because you were going to give him your passport and you were minded to go on that trip as scheduled?", "zh-HK": "官：我知，不過佢一定唔會答「係呃妳去做小姐」架？…係囉，咁即係換句話嚟講，妳當時去就係一心要交個護照，亦都打算照去架喇？" } }, { "doc_id": 55, "seg_id": 52, "translation": { "en": "Defendant:not true", "zh-HK": "被告：唔係" } }, { "doc_id": 55, "seg_id": 53, "translation": { "en": "It seems that not until now that we have heard of it (David was single) for the very first time?", "zh-HK": "我哋到而家我哋先至第一次聽到（David未結婚）架咋喎，似乎？" } }, { "doc_id": 55, "seg_id": 54, "translation": { "en": "Well, given 20 square meters, it’s only very small, well, with a glance, what else did you see apart from clothes? Did you see anything else, any electronic devices or electrical appliances, motor vehicle parts and the like which were totally different from clothes?", "zh-HK": "咁離20平方咪好細架之嘛，就妳一眼望落去除咗衣服之外仲有冇其他嘢妳見到電子、電器產品呀、汽車、零件個啲，同衣服完全都唔同嘅？" } }, { "doc_id": 55, "seg_id": 55, "translation": { "en": "Well, did you think it was all of a sudden?...it was the first time you had travelled abroad and you suddenly had to go on the following day, and you did not think that it was all of a sudden?", "zh-HK": "即係妳唔覺得突然嘅咩？…第一次出國突然之間聽日就走喇喎，咁妳都唔覺得突然架？" } }, { "doc_id": 55, "seg_id": 56, "translation": { "en": "As you were getting away for a break, so, let’s put it this way, as you were offered the opportunity, you would seize it, right? I mean, as such a person was so readily there, I mean, if I travelled to a certain place where a friend came to visit me, I would ask him about what tourists’ attractions were out there, what delicacies he would recommend, how to get around, by subway or taxi, and so on…I mean, what you meant was that you were not minded to ask that person about all these, even when such a person was so readily there, is that what you mean?", "zh-HK": "妳去散心吖嘛，即係有城隍廟，我哋叫做，都入去求番支籤吖，係咪？即係有咁方便嘅人，即係如果我去嗰一笪嘅地方有一個朋友嚟搵我，咁我都會問下佢，邊到有咩嘢玩呀，有咩嘢好食呀，點樣去呀，搭地鐵呀，的士呀，諸如此類呀…即係妳嘅意思就即係話妳唔打算問佢喇，即使有一個咁方便嘅人喺度，妳咪咁嘅意思呀？" } }, { "doc_id": 55, "seg_id": 57, "translation": { "en": "Well, do you find that something was wrong? Look, the clothing samples should have been made ready for collection well before the time they were collected.", "zh-HK": "咁妳有冇覺得有問題嘅呢？喂，攞衣服樣板咁就應該一早做好晒去攞架喇。" } }, { "doc_id": 55, "seg_id": 58, "translation": { "en": "…why was not CY told to bring the suitcase to you and instead, you--instead, he came over to the hotel you stayed to pick you up by car and drove you to his home, I mean, why took all these troubles?", "zh-HK": "…點解唔叫CY攞個箱去畀妳，而係要妳--而係要佢走嚟酒店車妳又去到佢個屋企嗰度，即係點解要大費周章咁樣樣做呢？" } }, { "doc_id": 55, "seg_id": 59, "translation": { "en": "Court:well, that is, in other words, even when it was already the third occasion, you still did not have much-- that is, you still thought that CY might be a bad person, right?", "zh-HK": "官：咁即係換句話嚟講，去到第三次嘅時候，妳都唔係好--即係妳都仲係覺得呢個CY有機會係一個壞人嚟架喎，係咪？" } }, { "doc_id": 55, "seg_id": 60, "translation": { "en": "Defendant:That’s not the case. I did not know whether he was a bad person, I only feared that he would take advantage of me.", "zh-HK": "被告：唔係，我唔知道佢係咪一個壞人，我只係驚佢會佔我便宜。" } }, { "doc_id": 55, "seg_id": 61, "translation": { "en": "Court:A man who take advantage of you is certainly a bad person, is that what you mean?", "zh-HK": "官：佔便宜就是一定唔係好人喇，係咪？" } }, { "doc_id": 55, "seg_id": 62, "translation": { "en": "Defendant:But I still trusted David, and a friend of his should not be that kind of person.", "zh-HK": "被告：但係我仲相信David，佢嘅朋友唔係嗰種人喇。" } }, { "doc_id": 55, "seg_id": 63, "translation": { "en": "Court:So, in fact he--so did you trust or did you not trust him?", "zh-HK": "官：咁究竟佢--妳信佢抑或唔信佢呀？" } }, { "doc_id": 55, "seg_id": 64, "translation": { "en": "Defendant:I only trusted David.", "zh-HK": "被告：我只係信任David。" } }, { "doc_id": 55, "seg_id": 65, "translation": { "en": "Court:Meaning you did not trust him.", "zh-HK": "官：即係唔信佢喇。" } }, { "doc_id": 55, "seg_id": 66, "translation": { "en": "Defendant:Because he was a friend of his.", "zh-HK": "被告：因為佢係佢朋友呀。" } }, { "doc_id": 55, "seg_id": 67, "translation": { "en": "Court:So, among your friends, there are some good ones, some relatively bad ones, and some very bad, right? It is not that a person being a friend of mine must be good, or a person not being my friend must be bad.", "zh-HK": "官：咁妳朋友都有啲好，有啲差啲，有啲好衰架？唔係佢係我朋友就一定係好，或者佢唔係我朋友就一定衰架。" } }, { "doc_id": 55, "seg_id": 68, "translation": { "en": "Defendant:Well, that I don’t understand.", "zh-HK": "被告：咁我唔了解呀。" } }, { "doc_id": 55, "seg_id": 69, "translation": { "en": "Have (you) ever wondered why (David was not in Guangzhou at Christmas) he did not tell you, ordinary--if it was the case of ordinary friends, I can understand, but at that time he and you were quite intimate…, then it would be really strange, especially it was Christmas? ...suppose he gave up on courting you, he was still your superior anyway, look, he’s your boss.", "zh-HK": "（妳）冇諗過點解（David聖誕節唔喺廣州）唔話畀妳聽。一--一般朋友我都明白，但係妳同佢嗰陣時都幾親密架喎。。。咁好奇怪喎，尤其是聖誕節？…當佢放棄追求妳。不過佢亦都始終係妳嘅上司喎，老闆喎。" } }, { "doc_id": 55, "seg_id": 70, "translation": { "en": "Don’t you think that it was necessary? I mean the boss suddenly disappeared, did you not think that it was necessary to find out what happened…as financial loss mattered a lot, right?", "zh-HK": "妳唔覺得有需要咩？即係老闆突然失蹤，妳唔覺得有需要去即係查究下咩嘢咁囉…因為經濟上嘅損失好緊要架喎？" } }, { "doc_id": 55, "seg_id": 71, "translation": { "en": "…suddenly you were informed again that you had to go to…go to Malaysia again, and the samples were not given to you on the same day, you had to wait for a few days, they would only be given to you on the day you left…theoretically, I mean, under the circumstances, I would presume that all must have been settled beforehand, therefore you had to go there in a hurry, well, surely for getting stuff, but after arrival, that was not the case, you were just idling there again…it happened in the same way everytime…did this question ever occur to you, did it or did it not ?”", "zh-HK": "…突然之間又通知妳又要去…去到馬來西亞，又唔係即日畀辦妳架喎，又要妳等幾日架喎，妳走嗰日先至畀妳架喎…理論上，即係我會覺得咁就梗係安排好晒，要妳趕住去，梗係攞嘢喇，咁但係去到又唔係嘅，又係百無聊賴…次次去都係咁嘅…有冇諗過呢個問題呢，有冇？」" } }, { "doc_id": 55, "seg_id": 72, "translation": { "en": "Mr Leung of Counsel cited The Queen v Yeung Mau Lam [1991] 2 HKLR 468 in support of his argument that the trial judge had by his questions entered the arena and it would have caused an informed bystander listening to the case to say that the applicant had not had a fair trial.", "zh-HK": "梁大律師引援The Queen v Yeung Mau Lam [1991] 2 HKLR 468，指原審法官向申請人發問時，沒有保持客觀的態度，令一個聆聽案件的知情旁觀者認定申請人沒有得到公平的審判。" } }, { "doc_id": 55, "seg_id": 73, "translation": { "en": "Although Mr Edmond Lee, Senior Assistant Director of Public Prosecutions for the Respondent agreed with the legal principle on which Mr Leung relied, he contended that the trial judge only sought to ensure effective case management, he gave the applicant the opportunity to explain or clarify her evidence, and that his questions would have facilitated the jury’s consideration of the evidence in its entirety, it followed that an informed bystander listening to the case would not find the trial judge to be biased against the applicant or the applicant had not had a fair trial. Mr Lee further contended that the applicant had testified for an extended period of three and a half days, whereas the judge’s questions formed only a very small part and that its impact on the evidence as a whole was insignificant.", "zh-HK": "代表答辯人的高級助理刑事檢控專員李俊文同意梁大律師所引援的法律原則，但指一個聆聽案件的知情旁觀者不會覺得原審法官對申請人有偏見，亦不會認為申請人沒有得到公平的審判，因為原審法官只是著緊於有效地管理審判，並且給予申請人機會解釋或澄清；他的提問有助陪審團考慮所有的證據。李專員又指，申請人作證的時間長達三天半，原審法官的提問只佔很少的篇幅，對申請人的整體證供影響不大。" } }, { "doc_id": 55, "seg_id": 74, "translation": { "en": "We have carefully read through all the transcripts of the applicant’s evidence, with particular attention drawn to the relevant parts on which Mr Leung relied. We have got the general impression that the trial judge put questions to the applicant not merely for the sake of case management or allowing the applicant to clarify her evidence, we instead find that quite a number of his questions for the applicant were put in a challenging tone, virtually sounding like cross-examination. Although the trial judge’s questions were only a small portion of the applicant’s oral evidence as a whole, we must not overlook the potential impact that the tone and fashion in which his questions were put might have on the jury. From an objective point of view, we consider that it would have caused an informed bystander listening to the case to find that the trial judge had bias against the applicant, and that the applicant had not had a fair trial.", "zh-HK": "本庭已詳細看過申請人口供的全部謄本，特別是梁大律師所依賴的部份。本庭得到的整體印象是，原審法官的提問並非單純為著案件管理或讓申請人澄清她的證言，反而不少是帶著質疑的口吻對申請人作出近似盤問的發問。原審法官的提問雖然只佔申請人全部證言的一小部份，但本庭不能忽略他提問的方式和口吻，對陪審團產生的可能影響。本庭認為，客觀地看來，一個聆聽案件的知情旁觀者會認定原審法官對申請人有偏見，而申請人亦沒有得到公平的審判。" } }, { "doc_id": 55, "seg_id": 75, "translation": { "en": "For this reason, Ground (2) is sustained.", "zh-HK": "因此，第二個上訴理由成立。" } }, { "doc_id": 55, "seg_id": 76, "translation": { "en": "Ground of appeal (3)", "zh-HK": "上訴理由（3）" } }, { "doc_id": 55, "seg_id": 77, "translation": { "en": "The Judge’s summing up against which Mr Leung attacked is :", "zh-HK": "梁大律師投訴原審法官對陪審團的有關指引原文如下：" } }, { "doc_id": 55, "seg_id": 78, "translation": { "en": "So, members of the jury, if the defendant has chosen not to ask any questions and shut her eyes to the obvious, and deliberately refrained from making confirmation, you, members of the jury, may draw an inference that the defendant didn’t want to confirm it because she actually did not have to; she in fact knew the existence of the drugs, to put it in colloquial terms, she ‘tacitly knew’ it.”", "zh-HK": "咁好喇，各位陪審員，假若被告人對一啲顯而易見嘅情況採取不聞不問、視若無睹，故意唔去核實嘅態度，各位陪審員係可以推論被告人唔想去核實係因為佢根本唔需要核實，因為佢根本就知道毒品嘅存在，正如我哋俗語所講「佢心知肚明」。」" } }, { "doc_id": 55, "seg_id": 79, "translation": { "en": "In support of his view that either of the “shutting eyes” or “constructive knowledge” directions are not applicable to any drug-trafficking case, Mr Leung cited the case HKSAR v Yang Yulan [2013] 4 HKLRD 162, in which this court (differently constituted) said:", "zh-HK": "梁大律師的立場是，這「閉上眼睛」或「推定知情」的指引並不適用於任何販運危險藥物的案件。梁大律師引援本庭（不同組成）在香港特別行政區 訴 楊玉蘭 [2013] 4 HKLRD 162 的判詞：" } }, { "doc_id": 55, "seg_id": 80, "translation": { "en": "We would like to take this opportunity to say that although in cases involving dangerous drugs, proof of “constructive knowledge” on the part of the defendant by the prosecution is sufficient to show the defendant’s knowledge, as Bokhary JA (as he then was) pointed out in the above case of Law Wai Choi (at page 561D), such knowledge of a material circumstance is rarely relevant and its relevance is confined to rare cases.", "zh-HK": "本庭在此一提，雖然在毒品案件，若控方能證實被告人有「推定知情」(constructive knowledge) 是可足以顯示被告人知情，但正如當時仍是上訴庭法官的包致金法官在上述Law Wai Choi (第561 頁D 行) 指出，「推定知情」有關鍵性的情況是罕見旳，而有關鍵性此情況亦局限於少數案件 (But such knowledge is rarely relevant.  And its relevance is confined to rare cases …)。" } }, { "doc_id": 55, "seg_id": 81, "translation": { "en": "If all the circumstances faced by a defendant were very suspicious and he deliberately shut his eyes to the circumstances at the material time, it might be construed that he had the knowledge but this is not necessarily the only finding (see R v Griffiths (Leslie George) (1974) 60 Cr App R 14).", "zh-HK": "若一名被告人面對的所有情況是非常可疑，而他故意對當時的情況視若無睹 (shut his eyes)，他可以被裁斷為知情，但這並非必然的裁斷 (參閱案例R v Griffiths (Leslie George) (1974) 60 Cr App R 14)。" } }, { "doc_id": 55, "seg_id": 82, "translation": { "en": "Since “constructive knowledge” is rarely involved in dangerous drugs cases, unless the facts clearly showed that the defendant had deliberately turned a blind eye to the suspicious circumstances, it is not appropriate for judges to give general directions to the jury on “constructive knowledge”.", "zh-HK": "基於毒品案件涉及「推定知情」的情況並不常見，因此除非案情明確顯示被告人是故意對可疑的情況視若無睹，法官不宜向陪審團作出有關「推定知情」的一般指引。」" } }, { "doc_id": 55, "seg_id": 83, "translation": { "en": "Mr Leung submitted that it was true that the applicant failed to ask David questions in many respects, to which she gave the explanation that those questions did not occur to her at that time, and it was mostly for the same reason, as suggested by the defence, that she ended up being manipulated. However, the trial judge gave the direction to the jury that they should return a verdict of not guilty if they believed that the applicant’s version was or could be true on the one hand, and on the other, the judge also directed the jury that the applicant having refrained from inquiry as to the obvious could be construed to mean that she tacitly knew it. In the circumstances where the jury accepted the applicant’s evidence but had reservations about whether she had the knowledge, the jury might have drawn the inference due to “constructive knowledge” direction given to them, that the applicant did have the knowledge.", "zh-HK": "梁大律師說，申請人確實就很多方面沒有向David發問，她的解釋是她當時沒想到這些問題，這當然亦是辯方指被告因此最終被利用的主要原因。可是，原審法官一面指若陪審團相信申請人的說法是真或有可能是真便要判她無罪，但另一方面亦指示若申請人對一些顯而易見的情況不聞不問，陪審團可推論她是心知肚明；若陪審團接納申請人的供詞，但對她是否知情則有所保留，在這情況下，陪審團有可能因為這「推定知情」指引而推論她是知情的。" } }, { "doc_id": 55, "seg_id": 84, "translation": { "en": "Mr Leung submitted that the only issue in dispute in the present case was whether the applicant had been deceived, whereas the prosecution took the view that there had been no deception whatsoever as alleged by the applicant. Mr Leung argued that on the facts of the present case, the applicant’s explanation could not be said to be “absurd”, nor was there evidence to show that she was highly suspicious of the circumstances. Therefore, it was uncertain as to whether it simply did not occur to her to inquire, she was deceived by David, or the circumstances at the material time were not obvious to the applicant as an involved party in this matter. Mr Leung argued that these issues were actually not very clear in the present case and would therefore be a matter for the jury. He submitted that, for these reasons, the present case was not a manifest case of “refraining from inquiry”, and that under these circumstances, it was not appropriate for the judge to give the said direction to the jury, causing them to wrongly believe that they might infer, on the mere fact that the applicant did not inquire in many respects, that the applicant “had the knowledge”.", "zh-HK": "梁大律師指出本案唯一爭辯議題就是申請人是否受騙，而控方的立場是根本沒有她所謂的騙局。梁大律師認為，以本案的案情而言，申請人的解釋並不可以說是「荒謬」，亦沒有證據指她當時對此事充滿懷疑；所以究竟她是否只是不懂得問、是否當時只是受到David的蒙蔽還是或者當時的環境情況作為一個當局者來說並不是顯而易見。梁大律師認為這些議題在本案實在並不是非常清晰，需要陪審團的決定；因此，本案並不是那些明顯不過「不聞不問」的案件。梁大律師力稱在這情況下，原審法官給予這上文提到的指引並不適當，亦會令陪審團錯誤地認為單以申請人在很多方面沒有查問便可推斷她是「知情」。" } }, { "doc_id": 55, "seg_id": 85, "translation": { "en": "As said in HKSAR v Mohammed Saleem [2009] 1 HKLRD 369 per Stuart-Moore VP at paragraphs 36-39: It is for the prosecution to prove its case beyond all reasonable doubt that a defendant being charged with trafficking in dangerous drugs had the knowledge that what he was carrying were dangerous drugs. In respect of the defendant’s knowledge, a test is to be applied to the defendant’s actual subjective knowledge.", "zh-HK": "控方有舉證責任，在毫無合理疑點下證明一名被控非法販運危險藥物罪行的被告，知悉他所所販運的東西是危險藥物。就被告人的知悉而言，驗證的標準是他本人主觀實際的知悉：見 HKSAR v Mohammed Saleem [2009] 1 HKLRD 369，上訴庭副庭長司徒冕的判詞第36-39段。" } }, { "doc_id": 55, "seg_id": 86, "translation": { "en": "In cases where there is no direct evidence to prove that the defendant had the knowledge that what he was carrying were dangerous drugs, the prosecution can still rely on circumstantial evidence to invite the tribunal to draw the only irresistible inference that the defendant had the knowledge that what he was carrying were dangerous drugs. Under these circumstances, it was necessary for the judge to give the jury the proper direction. What it is meant by “proper” depends on the actual circumstances of each case, but at least it has to be pointed out that any inference must be drawn from the proved facts.", "zh-HK": "當控方沒有直接的證據去證明被告知悉他所販運的東西是危險藥物，仍可依賴環境證據，要求審裁機構作出唯一及無可抗拒的推論，被告本人知悉他所販運的東西是危險藥物。在這樣情況下，法官必須對陪審團作出適當的指引。何謂適當的指引要視乎案件的實際情況而定，但最起碼的是要指出任何的推論必須是根據已證明的事實方可。" } }, { "doc_id": 55, "seg_id": 87, "translation": { "en": "The judge also needs to point out to the jury that suspicion does not equate to knowledge. Even if the defendant suspected that what he was carrying to be something illegal or even dangerous drugs, the judge still has to direct the jury that the defendant’s suspicion is not to be equated to his having subjective knowledge of what he was carrying were dangerous drugs. When the dangerous drugs were concealed in another object, the judge must cautiously refrain from suggesting to the jury that the defendant’s failure to avail himself/herself of the opportunity to inspect the contents of that object means, or be construed to mean that the defendant had the subjective knowledge of its contents, although in some cases, the judge may direct the jury that, along with the other evidence, an inference of subjective knowledge might be drawn against the defendant from his/her failure to do so. See Liu JA’s judgment in The Queen v Law Wai Choi & Another [1997] HKLRD 555, at page 558 lines G-H. We must however reiterate that such direction is not relevant in every drug-trafficking case. Whether such direction is required is dependent on the actual circumstances of the case. As said by Bokhary JA (as he then was) in the same judgment at page 561 lines C-E, it is only rarely that such a direction is warranted.", "zh-HK": "法官亦需向陪審團指出，懷疑並不等於知悉。即使被告人懷疑他所販運的東西是非法的東西或甚至是危險藥物，法官仍必須指引陪審團，被告人的懷疑並不等於他主觀知悉那些東西就是危險藥物。當涉案的危險藥物是藏在另一個物體裡時，法官必須小心避免向陪審團提議，被告人當有機會卻沒有檢查該物體所藏有的物品是甚麼，就等於或可視被告人主觀知悉該物體所藏有的物品是甚麼；雖然在合適的案件裡，法官可以指引陪審團，他們可以考慮被告人沒有那樣做這一點，連同其他所有的證據，作出他主觀知悉的推論：見 The Queen v Law Wai Choi & Another [1997] HKLRD 555，上訴法庭法官廖子明的判詞第558頁G-H行。但是本庭必須重申，不是每件非法販運危險藥物的案件，法官都需要作出這樣的指引，是否需要全看案件的實際情形而定；正如上訴庭法官包致金（當時官階）在同一案例第561頁C-E行指出，只有在極其罕見的案件中才需要作出這樣的指引。" } }, { "doc_id": 55, "seg_id": 88, "translation": { "en": "We have carefully perused the trial judge’s summing-up to the jury in its entirety and noted that the trial judge categorically gave the jury the “shut-eye” or “constructive knowledge” directions, as mentioned hereinabove at para 24, when he dealt with the issues of “suspicion”, circumstantial factors and circumstantial evidence. In our judgment, which is agreed by Mr Lee for the Respondent, on the facts of the present case, the trial judge was not required to give such a direction. We are of the view that such unwarranted direction given by the trial judge would have probably misled the jury into believing that they might find, on the mere fact that the applicant found the circumstances suspicious but have refrained from inquiry or shut her eyes to those circumstances, that the applicant knew that the dangerous drugs in question had been concealed in the suitcase she was carrying.", "zh-HK": "本庭仔細看過原審法官對陪審團指引的全部內容，留意到原審法官是在處理「懷疑」、環境因素和環境證據這議題時，特別作出上文第24段所謂的「閉上眼睛」或「推定知情」的指引。本庭認為而李專員亦同意，從本案的案情看來，原審法官其實無需作出這樣的指引。本庭認為，這樣不需要的指引很有可能會令陪審團誤認只要申請人有懷疑但採取不聞不問、視若無睹的態度，他們便可以裁定申請人是知悉她攜帶的行李箱內藏有涉案的毒品。" } }, { "doc_id": 55, "seg_id": 89, "translation": { "en": "For this reason, Ground (3) is sustained.", "zh-HK": "因此，第三個上訴理由成立。" } }, { "doc_id": 55, "seg_id": 90, "translation": { "en": "It may be mentioned in passing that, the application of the concept of “constructive knowledge” should be approached with great care in drug-trafficking cases. Such concept must not be confused with that in Civil Law. In Civil Law, under some specific circumstances, even a person lacking in actual knowledge may still be presumed to have knowledge in respect of specific issues under the concept of constructive knowledge. But this approach is strictly disallowed in drug-trafficking cases. “Constructive knowledge” in drug trafficking cases means that, in fact, it is only very rarely that, the tribunal may draw an inference of the defendant’s subjective knowledge from the actual circumstances of the case, but it definitely does not mean that the defendant may be presumed to have the knowledge when he/she actually does not.", "zh-HK": "本庭順帶一提，在販毒的案件裡引用「推定知情」這概念時應當十分小心，千萬不要把它和民事法下的constructive knowledge （法律構定的知悉）的概念混淆。在民事法下，在某些特定的情況，即使某人對某事真的不知情，仍可以constructive knowledge的概念，就某一特定議題，算作他是知情的。但在販毒案件中這樣的做法是絕不容許的。在販毒案件中的所謂「推定知情」，其實只是指在罕有的案件中，審裁機構可以根據實際案情作出被告人主觀知情的推論，但這絕不是說當被告人真的是不知情時，仍可以把他算作是知情的。" } }, { "doc_id": 55, "seg_id": 91, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 55, "seg_id": 92, "translation": { "en": "For the above reasons, we grant the applicant’s application for leave to appeal against her conviction and, treating her application as the appeal proper, the appeal is allowed. The conviction is quashed and sentence set aside.", "zh-HK": "基於上述原因，本庭批准申請人之上訴許可申請，視之為正式上訴，並判上訴得直，撤銷有關控罪和刑期。" } }, { "doc_id": 55, "seg_id": 93, "translation": { "en": "In view of the seriousness of the offence in the present case, we need to consider whether a retrial should be ordered. It is hereby directed that both parties shall submit to this court their written submissions on this issue within 14 days, subsequent to which we would deal with it in writing. The applicant shall continue to be remanded in jail custody pending further order of this court.", "zh-HK": "本案涉及的罪行十分嚴重，本庭需要考慮是否命令重審。本庭現指示雙方就這議題，在14天內向本庭交書面陳詞，本庭之後將會以書面形式處理。期間，申請人繼續還柙，等候本庭進一步命令。" } }, { "doc_id": 55, "seg_id": 94, "translation": { "en": "Mr Leung Chun Keung, instructed by Wong & Co., Solicitors and assigned by the Legal Aid Department, for the applicant", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員李俊文代表。" } }, { "doc_id": 55, "seg_id": 95, "translation": { "en": "Mr Edmund Lee, SADPP, of the Department of Justice, for the respondent", "zh-HK": "申請人：由法律援助署委派黃律師事務所轉聘梁振強大律師代表。" } }, { "doc_id": 56, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the judgment of the Court):", "zh-HK": "上訴法庭副庭長楊振權頒發上訴法庭判案書：" } }, { "doc_id": 56, "seg_id": 2, "translation": { "en": "Factual Background", "zh-HK": "背景事實" } }, { "doc_id": 56, "seg_id": 3, "translation": { "en": "On 14 September 2010, the Appellant (Chow Chun Sang), upon being stopped and searched by the police at the junction of On Ning Road and Ping Wui Street in Yuen Long, threw a plastic bag containing an apparatus for smoking “ice” to the ground and fled. When the police gave chase to him, he put up a struggle, during which he scratched a Sergeant and kicked the Sergeant on his leg(s) twice. But he was subdued and arrested in the end.", "zh-HK": "2010年9月14日，上訴人(周俊生)在元朗安寧路及屏會街交界遭警員截查時，將一個載有吸食“冰”毒工具的膠袋扔在地上後逃走。警員追截他時，他和警員糾纏，期間抓損了警長及踢了警長的腿兩次，但最終被制服及被拘捕。" } }, { "doc_id": 56, "seg_id": 4, "translation": { "en": "At the police station, the police found on the person of the Appellant another plastic bag, containing 7.22 grammes of “ice” and 0.08 grammes of nimetazepam in the form of 15 tablets.", "zh-HK": "返回警署後，警員在上訴人身上搜出另一膠袋，內有7.22克“冰”毒及15片內含0.08克硝甲西泮的片劑。" } }, { "doc_id": 56, "seg_id": 5, "translation": { "en": "The Appellant faced four charges, namely trafficking in 7.22 grammes of “ice” (the first charge), possession of 15 tablets containing 0.08 grammes of nimetazepam (the second charge), assaulting a police officer in execution of duty (the third charge), and possession of apparatus for smoking a dangerous drug (the fourth charge).", "zh-HK": "上訴人被控四項控罪，包括第一項非法販運7.22克“冰”毒罪，第二項管有15片內含0.08克的硝甲西泮片劑罪，第三項襲擊執行職責的警務人員罪及第四項管有吸食毒品器具罪。" } }, { "doc_id": 56, "seg_id": 6, "translation": { "en": "The Appellant pleaded guilty to all charges, for which he was sentenced to a total of 3 years and 10 months’ imprisonment. For the above four charges, the Judge sentenced the Appellant to imprisonment for 3 years and 6 months, 2 months, 2 months and 3 months respectively. The sentences on the first and the fourth charges were ordered to run concurrently and the sentences on the second and the third charges consecutively, making a total sentence of 3 years and 10 months. Taking into account the fact that the Appellant was already sentenced to a total of 12 months’ imprisonment for separate offences of theft (TMCC 3082/2010) and possession of a dangerous drug (TMCC 4344/2009), the Judge ordered the sentence of 12 months to run consecutively to the aforesaid sentence of 3 years and 10 months. The total term of imprisonment the Appellant had to serve was therefore 4 years and 10 months. Having been granted leave by a single judge of this Court, the Appellant now appeals against sentence.", "zh-HK": "上訴人承認全部控罪，結果被判入獄共3年10個月。就上述四項控罪，原審法官判上訴人分別入獄3年6個月﹑2個月﹑2個月及3個月。原審法官下令第一項及第四項控罪的刑期同期執行，但第二項及第三項控罪的刑期則分期執行，得出共3年10個月的判刑。判刑時，申請人因另一宗盜竊罪（TMCC 3082/2010）及另一宗管有毒品罪（TMCC 4344/2009）而被判入獄共12個月。原審法官下令該12個月刑期要和上述的3年10個月刑期分期執行，因此上訴人要服的總刑期為4年10個月。上訴人不服判刑，獲上訴法庭單一法官的批准，就判刑上訴。" } }, { "doc_id": 56, "seg_id": 7, "translation": { "en": "The Appellant’s Background and Mitigation", "zh-HK": "上訴人的背景及求情理由" } }, { "doc_id": 56, "seg_id": 8, "translation": { "en": "The Appellant, aged 36, was born in Mainland China. He settled in Hong Kong in the 1980’s. He has 15 previous convictions, of which seven are for possession of a dangerous drug, one for possession of apparatus for smoking a dangerous drug, and two for common assault.", "zh-HK": "上訴人36歲，國內出生，在80年代移居香港。上訴人有15次犯罪記錄，包括7次管有毒品﹑一次管有吸食毒品工具及兩次普通襲擊罪。" } }, { "doc_id": 56, "seg_id": 9, "translation": { "en": "At first instance, Counsel for the Appellant emphasized that the Appellant did not have a conviction record for drug trafficking and that more than half of the “ice” involved was for the Appellant’s own consumption. Counsel also submitted that the Appellant assaulted the police for the sole purpose of fleeing and that the Sergeant sustained only minor injuries. A letter of mitigation written by the Appellant’s aged and infirm mother was placed before the Judge.", "zh-HK": "原審時，上訴人的代表大律師強調上訴人沒有販毒前科，而涉案的“冰”毒有超過一半是上訴人作自己吸食用。大律師亦指上訴人襲擊警員，目的只是想逃走，而警長受傷亦屬輕微。上訴人年邁﹑體弱的母親亦撰寫求情書要求法庭輕判上訴人。" } }, { "doc_id": 56, "seg_id": 10, "translation": { "en": "The Judge’s Reasons for Sentence", "zh-HK": "原審法官的判刑理由" } }, { "doc_id": 56, "seg_id": 11, "translation": { "en": "The Judge emphasized the gravity of the offence of trafficking in dangerous drugs and pointed out that, according to the sentencing guidelines laid down by the Court of Appeal, the starting point for trafficking in up to 10 grammes of “ice” was 3 to 7 years’ imprisonment. The Judge accepted that more than half of the “ice” involved was for the Appellant’s own consumption, but did not consider this a very strong mitigating factor as possession of “ice” was also an offence per se. The Judge considered the appropriate starting point for 7.22 grammes of “ice” was imprisonment for 5 years and 10 months.", "zh-HK": "原審法官強調販毒罪行的嚴重性及指出根據上訴法庭的判刑指引，販運10克以內“冰”毒，量刑基準為3至7年監禁。原審法官接受涉案的“冰”毒有超過一半為上訴人自用，但認為該點並非很強的求情理由，原因是管有“冰”毒本身亦是罪行。原審法官認為以7.22克“冰”毒而言，適當的量刑基準為5年10個月。" } }, { "doc_id": 56, "seg_id": 12, "translation": { "en": "However, taking into account that over half of the drug was for the Appellant’s own consumption, the Judge adopted 5 years and 3 months as the starting point. The Judge then reduced the sentence by one-third to 3 years and 6 months on account of the Appellant’s guilty plea. The Judge further sentenced the Appellant to imprisonment for 2 to 3 months in respect of the remaining charges and, in the end, arrived at a total sentence of 3 years and 10 months.", "zh-HK": "但考慮到毒品中有超過一半為上訴人自用，原審法官以5年3個月為量刑基準，並因上訴人認罪而將刑期扣減三分一至3年6個月。就其餘控罪，原審法官則判上訴人入獄2至3個月，而導致最終的3年10個月判刑。" } }, { "doc_id": 56, "seg_id": 13, "translation": { "en": "The records show that the Appellant committed the offences in TMCC 4344/2009 (namely, possession of “ice” and possession of apparatus for smoking “ice”) on 7 September 2009. The case was set down for trial on 13 January 2010. The Appellant was absent for the trial and a warrant of arrest was issued against him. On 3 September 2010, the Appellant committed the offence in TMCC 3082/2010 (namely, theft). On 14 September 2010, the Appellant was arrested for the present case and was brought before the court on the following day. Upon pleading guilty to all the charges in TMCC 4344/2009 and TMCC 3082/2010, the Appellant was sentenced to a total of 12 months’ imprisonment.", "zh-HK": "記錄顯示，上訴人在2009年9月7日干犯 TMCC 4344/2009案（管有“冰”毒及管有吸食“冰”毒工具罪）。案件排期在2010年1月13日開審。上訴人因缺席應審而被通緝。2010年9月3日，上訴人再干犯TMCC 3082/2010案（“盜竊”罪）。2010年9月14日，上訴人因本案被捕，並在翌日被帶上法庭。上訴人承認TMCC 4344/2009及TMCC 3082/2010案的全部控罪後共被判入獄12個月。" } }, { "doc_id": 56, "seg_id": 14, "translation": { "en": "The Appellant committed the offence in TMCC 3082/2010 and those in the present case when he was wanted. On 22 March 2011, having pleaded guilty to the four charges in the present case, the Appellant was sentenced to a total of 3 years and 10 months’ imprisonment. The Judge ordered the sentence of 3 years and 10 months to run consecutively to the aforesaid sentence of 12 months.", "zh-HK": "上訴人是在被通緝期間干犯TMCC 3082/2010案及本案，2011年3月22日，上訴人承認本案的四項控罪後，被判入獄共3年10個月。原審法官下令3年10個月的判刑要和上述的12個月判刑分期執行。" } }, { "doc_id": 56, "seg_id": 15, "translation": { "en": "Ground of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 56, "seg_id": 16, "translation": { "en": "Mr. David Ma, Counsel for the Appellant, put forward only one ground of appeal. Mr. Ma agreed that the starting point of 5 years and 10 months adopted by the Judge for the offence of trafficking in “ice” was appropriate. However, Mr. Ma submitted that the 7-month discount to sentence (which translated to a discount of approximately 10%) given by the Judge on account of personal consumption of the “ice” by the Appellant was inadequate, and this rendered the sentence of 3 years and 6 months manifestly excessive. Mr. Ma cited SJ v Chan Chun Fai [2011] 3 HKLRD 116 to support his argument and submitted that the appropriate discount should be in the region of 15 %.", "zh-HK": "代表上訴人的馬維騉大律師只指出一項上訴理由。馬大律師同意就販運“冰”毒罪，原審法官採納的5年10個月量刑基準恰當，但他因“冰”毒是作上訴人自用而給予他的7個月刑期折扣（約10%）不足而導致該項控罪的3年6個月判刑明顯過重。馬大律師援引SJ v Chan Chun Fai [2011] 3 HKLRD 116案支持其立場。馬大律師認為適當的刑期扣減幅度應約為15%。" } }, { "doc_id": 56, "seg_id": 17, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 56, "seg_id": 18, "translation": { "en": "Trafficking in “ice” is a serious offence, and the Court of Appeal has laid down clear sentencing guidelines with a view to deterring potential offenders. In AG v Ching Kwok-hung [1991] 2 HKLR 125, the Court of Appeal pointed out that “ice” was a drug more deleterious to the human body than was heroin, and fixed a starting point of 3 to 7 years’ imprisonment for trafficking in 10 grammes of “ice”. The Court of Appeal further pointed out a number of sentencing considerations apart from the quantity of the drugs involved, such as whether the defendant pleaded guilty, whether the defendant had cooperated with and rendered assistance to the police, whether the defendant testified against other drug traffickers in respect of the drug involved or other drugs, whether the defendant had a clear record, and any matters personal to the defendant (at 130H-I).", "zh-HK": "販運“冰”毒罪行嚴重，為了阻嚇罪犯從事販運“冰”毒的罪行，上訴法庭定下明確判刑指引。在AG v Ching Kwok-hung [1991] 2 HKLR 125案，上訴法庭指出“冰”毒對人體造成的損害較海洛英更甚，並定下販運10克份量的“冰”毒，量刑基準為3至7年監禁。上訴法庭亦再指出，在考慮適當判刑時，除了毒品的份量外，法庭亦要考慮其他因素，包括被告人是否認罪，是否和警方合作及有否協助警方，是否有就涉案的毒品或其他毒品作供指證其他販毒者，是否案底清白及和被告人個人有關的事項(見判案書第130頁H-I行)。" } }, { "doc_id": 56, "seg_id": 19, "translation": { "en": "Even though the Appellant does not have a previous conviction for drug trafficking, he does have an extensive criminal record, a major part of which comprises drug-related offences that he has repeatedly committed. Therefore, he cannot rely on a clear record as a mitigating factor. Nor can he rely on his family predicaments, including the need to take care of his senile mother, as a mitigating factor. In light of the quantity of the drug the Appellant trafficked in, i.e. 7.22 grammes of “ice”, and the background of the Appellant, the starting point of 5 years and 10 months was clearly appropriate, and indeed Mr. Ma did not take issue with that. The Judge, however, accepted the Appellant’s contention that over half of the 7.22 grammes of “ice” he trafficked in was for his own consumption, and proceeded to sentence him on that basis.", "zh-HK": "雖然上訴人沒有販毒前科，但他亦是案底纍纍，更多次涉及毒品罪行。因此，上訴人不能以案底清白為求情理由。上訴人的家庭困境，包括要照顧年邁﹑體弱母親亦非減刑因素。上訴人販運7.22克“冰”毒，從毒品的份量而言及考慮到上訴人的背景，5年10個月的量刑基準明顯是合適的。馬大律師對此亦不表異議。但上訴人指其販運的7.22克“冰”毒中有超過一半作自用，原審法官亦接納說法並以該說法為判刑基礎。" } }, { "doc_id": 56, "seg_id": 20, "translation": { "en": "In drug trafficking cases, the fact that all or part of the drug involved is for the defendant’s self-consumption is recognized as a mitigating factor (see, for example, R v Chan Mung-lung [1992] 2 HKCLR 127 and R v Chung Kam Fai [1993] HKC 42).", "zh-HK": "在販運毒品案件，被告人販運的毒品中，全部或部分作自用是減刑理由(見R v Chan Mung-lung [1992] 2 HKCLR 127 及R v Chung Kam Fai [1993] HKC 42等案)。" } }, { "doc_id": 56, "seg_id": 21, "translation": { "en": "In R v Meah & Marlow (1991) 92 Cr App R 254, a case concerning drug trafficking by way of importation of drugs, Jupp J also made the following observations (at 256):", "zh-HK": "在R v Meah & Marlow (1991) 92 Cr App R 254，Jupp大法官在處理進口毒品的販毒案件時，在判案書的第256頁亦有以下評論：" } }, { "doc_id": 56, "seg_id": 22, "translation": { "en": "“Importing is a distinct offence from possessing. The penalties are different and in our view it is not right to say that this must be treated simply as a case of possession. Nevertheless there must be a considerable reduction in sentence to reflect the fact that the drugs were for the appellant’s own consumption.”", "zh-HK": "“入口毒品和管有毒品是兩項截然不同的罪行，判刑亦有別。本庭不同意本案應被視為單單是管有毒品案件。不過毒品是作為上訴人自用一事應由不小的刑期扣減幅度中反映出來。”(非官方翻譯)" } }, { "doc_id": 56, "seg_id": 23, "translation": { "en": "In the case of Chung Kam Fai cited above, the defendant brought 306.67 grammes of heroin from Bangkok, Thailand into Hong Kong and contended that the drug was wholly for his own consumption. The Court of Appeal took the view that, in the absence of a ruling by the trial judge on such contention, sentencing should be approached in a way most favourable to the defendant. The Court of Appeal adopted a starting point of 16 years, and further to a reduction in sentence to 9 years on account of the defendant’s guilty plea and assistance to the authorities, the Court gave the defendant an additional 2-year discount, which was equivalent to 12% of the starting point of 16 years, in light of the self-consumption of all the drug by the defendant. In HKSAR v Chow Kam Lung [2010] 4 HKLRD 253, the Defendant admitted importing 22.15 grammes of ketamine from the Mainland, but claimed that the drug was wholly for his own consumption. The Court of Appeal considered that the reduction in sentence on account of the above factor should be in the region of 25%.", "zh-HK": "在上述的Chung Kam Fai案，被告人從泰國曼谷攜帶306.67克海洛英進入香港，並聲稱毒品全作自用。上訴法庭認為在原審法官沒有就被告人的聲稱作出裁決時，應以對他最有利的方法處理判刑。上訴法庭採納16年為基本量刑基準之餘，除了因被告人認罪及協助有關當局而將刑期扣減至9年後，再給予被告人額外的兩年刑期扣減，以反映全部毒品是被告人自用一事。兩年的扣減相等於16年量刑基準的12%。在HKSAR v Chow Kam Lung [2010] 4 HKLRD 253案，被告人承認由國內輸入22.15克氯胺酮，但聲稱毒品全作自用。上訴法庭認為因上述因素而將刑期扣減的幅度應約為25%。" } }, { "doc_id": 56, "seg_id": 24, "translation": { "en": "We have to point out that the defendants in Meah & Marlow, Chung Kam Fai and Chow Kam Lung were all involved in importing drugs and sentenced by the Court on the basis that the drugs were wholly for their own consumption.", "zh-HK": "本庭須指出上述的Meah & Marlow案，Chung Kam Fai案和Chow Kam Lung案都涉及被告人輸入毒品而法庭的判刑基礎是涉案毒品全部作被告人自用。" } }, { "doc_id": 56, "seg_id": 25, "translation": { "en": "In HKSAR v Cheuk Kin Man [2010] 5 HKLRD 558, the defendant pleaded guilty to trafficking in 15.77 grammes of heroin but claimed that two-thirds thereof were for his own consumption. The Court of Appeal agreed that when part of the dangerous drug was intended for personal consumption by the trafficker, an appropriate, albeit not substantial, discount to sentence should be given. The defendant was given an approximate discount of 15% by the Court of Appeal.", "zh-HK": "在香港特別行政區訴卓健文 [2010] 5 HKLRD 558案，被告人承認販運15.77克海洛英，但聲稱毒品中有三分之二供自用。上訴法庭同意當販毒者打算將涉案毒品部分供自用，量刑時應給予他恰當的刑期扣減，但幅度不會很大。上訴法庭給予被告人的刑期扣減約為15%。" } }, { "doc_id": 56, "seg_id": 26, "translation": { "en": "We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant. We need to emphasize that unless the judge has erred in principle, the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs a defendant trafficked in.", "zh-HK": "本庭認為在販毒案件，販毒者打算將涉案毒品全部或部分作自用一時，可導致的減刑幅度應為基本量刑基準的10%–25%，幅度按不同案件的情況而定。法庭應考慮涉案毒品的總份量、用作自用部分的比例、毒品的性質、販毒者販毒的目的是否為了賺錢、販毒行為是否有組織和有計劃、被告人的背景及犯罪記錄等等因素來決定刑期扣減的幅度。本庭需強調，除非原審法官犯了原則性的錯誤，上訴法庭不應干預原審法官因被告人販運的毒品中部分作自用而給予他的刑期扣減。" } }, { "doc_id": 56, "seg_id": 27, "translation": { "en": "As pointed out by the Judge, possession of “ice” for personal consumption is also an offence in itself. Furthermore, we must not overlook the latent risk that the portion of the drug intended for the Appellant’s own consumption may be given or sent to others.", "zh-HK": "誠如原審法官指出，管有“冰”毒作自用本身亦是罪行。本庭亦不能忽視上訴人自用部分的毒品亦有可能傳送到他人手中這潛在危機。" } }, { "doc_id": 56, "seg_id": 28, "translation": { "en": "In HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69 at 80E, this Court also emphasized that the gravity of trafficking is not mitigated in those cases where the trafficker is trafficking in order to fund drugs intended to feed his own addiction.", "zh-HK": "本庭在HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69案判案書第80頁E行中亦強調，販毒的嚴重性不會因毒販販毒目的是為了賺取金錢來滿足毒癮而減輕。" } }, { "doc_id": 56, "seg_id": 29, "translation": { "en": "With 15 previous convictions, the Appellant’s criminal record is worse than those of other defendants in similar cases. It must also be borne in mind that the Appellant re-offended when he was wanted. Having regard to self-consumption by the Appellant of most of the “ice” involved, the Judge reduced the starting point from 5 years and 10 months to 5 years and 3 months. We agree that this 7-month discount (i.e. approximately 10%) is on the conservative side. Nevertheless, in our judgment, the Judge has not erred in principle, nor is the final sentence of 3 years and 6 months on the first charge manifestly excessive.", "zh-HK": "上訴人有15次犯罪記錄，和同類案件被告人的犯罪記錄相比較差。本庭亦需強調，上訴人是在被通緝期間，再次犯案。本庭同意原審法官因涉案“冰”毒大部分是上訴人自用而將量刑基準由5年10個月扣減7個月至5年3個月（約10%），幅度屬保守。但本庭認為原審法官並沒有犯了任何原則性的錯誤而第一項控罪的最終3年6個月判刑亦非明顯過重。" } }, { "doc_id": 56, "seg_id": 30, "translation": { "en": "The ground of appeal advanced by the Appellant fails. We therefore dismiss his appeal against sentence.", "zh-HK": "上訴人提出的上訴理由不成立。因此本庭駁回他的上訴，維持原判。" } }, { "doc_id": 56, "seg_id": 31, "translation": { "en": "Mr. Robert Lee, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員李運騰代表。" } }, { "doc_id": 56, "seg_id": 32, "translation": { "en": "Mr. David Ma and Ms. Eunice Yung, instructed by the Bar Free Legal Service Scheme, for the Appellant.", "zh-HK": "上訴人：由大律師公會法律義助服務計劃轉聘大律師馬維騉及大律師容海恩代表。" } }, { "doc_id": 57, "seg_id": 1, "translation": { "en": "Hon Poon J (giving the Reasons for Judgment of the Court):", "zh-HK": "高等法院原訟法庭法官潘兆初頒發上訴法庭判案理由書：" } }, { "doc_id": 57, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 57, "seg_id": 3, "translation": { "en": "The applicant (Leung Oi Yin Scarlette) was charged with 16 charges of theft (Charges 1 to 6), 11 charges of using a false instrument (Charges 17 to 27) and one count of possessing a false instrument (Charge 28). She pleaded guilty to Charges 17 to 28 but not guilty to Charges 1 to 16. On 27 March 2014, she was convicted after trial by H.H. Judge Eddie Yip (trial judge) of all 16 charges of theft. On 15 April 2014, she was sentenced to imprisonment for 5 years and 6 months in total. The applicant, represented by Mr Robert Pang SC, applied for leave to appeal the conviction of all charges of theft.", "zh-HK": "申請人（梁靄燕）被控16項盜竊罪（控罪一至十六）、11項使用虛假文書罪（控罪十七至廿七）及1項管有虛假文書罪（控罪廿八）。她承認第十七至廿八項控罪，但否認第一至十六項控罪。2014年3月27日，經審訊後，區域法院葉佐文法官（原審法官）裁定申請人十六項盜竊罪全部罪名成立。4月15日，原審法官判處申請人入獄共5年6 個月。申請人不服定罪，由彭耀鴻資深大律師提出申請，要求獲准就所有盜竊罪的定罪上訴。" } }, { "doc_id": 57, "seg_id": 4, "translation": { "en": "10 February 2015, this court refused the application after the hearing. Here are the reasons.", "zh-HK": "2015年2月10日，經聆訊後，本庭拒絕申請。本庭現頒下判案理由書。" } }, { "doc_id": 57, "seg_id": 5, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 57, "seg_id": 6, "translation": { "en": "The prosecution case may be summarised as follows:", "zh-HK": "控方的案情可撮要如下。" } }, { "doc_id": 57, "seg_id": 7, "translation": { "en": "Gainford International Limited (“Gainford”) was set up on 17 August 1993 and mainly engaged in sales of machinery and material of circuit boards. At the material time of the present case, Gainford had three shareholders who were also directors. The major shareholder-cum-director was Tse Chun Yip (“Tse”) who owned 80% of the shares; and the other two shareholders-cum-directors were Tse Chun Kei (transliteration) and Chu Wing Yin (transliteration). Tse returned to Gainford to deal with its matters only two days a week and mostly remained in the Mainland for the rest of the time.", "zh-HK": "佳輝工業國際有限公司（“佳輝”）在1993年8 月17日成立，業務主要是銷售線路板物料和機器。在本案案發時段，佳輝共有三名股東兼董事，最大股東兼執行董事是謝俊業（“謝”），他持有80% 股份；另外兩名股東兼董事是謝俊基及朱永賢。謝每星期只有兩天到佳輝走一趟處理佳輝的事宜，其餘時間則多在國內。" } }, { "doc_id": 57, "seg_id": 8, "translation": { "en": "Wong Chi Kit (“Wong”) joined and started to work in Gainford in 1994, and his job title at the material time was Information Technology and Accounting Manager.", "zh-HK": "王智傑（“王”）在1994年加入佳輝工作，於案發時段的職銜是資訊科技和會計經理。" } }, { "doc_id": 57, "seg_id": 9, "translation": { "en": "In late 1999, the applicant through Wong’s introduction joined Gainford to work as a part-time accounting officer, and after a few months, she changed to work on a full-time basis and was appointed the Financial Controller, responsible for the financial arrangements of Gainford and dealing with the bank accounts of Gainford and Tse, including the main bank account that Gainford used for the payments in and out in the course of business (“Hang Seng current account”) and the account that Tse had opened with Dah Sing Bank under his own name for keeping the reserve fund of Gainford (“Dah Sing fixed deposit account”).", "zh-HK": "申請人在1999年底經王介紹加入佳輝為兼職會計，數個月後轉為全職並獲委任為財務總監，負責佳輝的財務安排，處理佳輝及謝的銀行賬戶，包括佳輝用作業務營運收支的主要銀行賬戶（“恒生往來賬戶”）及謝以其個人名義在大新銀行開立一個用作存放佳輝後備資金的賬戶（“大新定期賬戶”）。" } }, { "doc_id": 57, "seg_id": 10, "translation": { "en": "In 2001, Tse in his own name opened an account for forex margin trading with an account for settlement of forex margin transactions (“Dah Sing forex account”). All the funds used for forex margin trading came from the reserve fund of Gainford. The applicant was authorized by Tse to operate the Dah Sing forex account on behalf of Gainford, and she was only required to provide the account number and the operation code and then she could place orders directly by phone with the Finance Department of Dah Sing Bank to do forex margin trading. The orders in respect of all 41 transactions done after the Dah Sing forex account had been opened were placed by the applicant in person.", "zh-HK": "2001年，謝以其個人名義在大新銀行開立一個外滙孖展買賣戶口及外滙孖展交易結算戶口（“大新外滙賬戶”）。透過大新外滙賬戶買賣外滙孖展的資金全部來自佳輝的後備資金。申請人獲謝授權代佳輝操作大新外滙賬戶，申請人只須提供該賬戶的號碼和操作密碼，可以直接用電話向大新銀行財資部落盤進行外滙孖展買賣。大新外滙賬戶開戶後所有的41次交易全由申請人親自落單進行。" } }, { "doc_id": 57, "seg_id": 11, "translation": { "en": "The information of the transactions of forex margin [trading] done by the applicant on behalf of Gainford would be given to Wong to do the accounts, and Wong compiled a Gainford Cash Position Report for Tse’s reference.", "zh-HK": "申請人代佳輝所作的外匯孖展員賣交易資料會交予王入賬，而王便負責製備佳輝的《現金流量報告表》予謝參考。" } }, { "doc_id": 57, "seg_id": 12, "translation": { "en": "In mid-2004, Tse looked at the Cash Position Reports of the company, which showed a decrease in free cash. Wong explained to him that there had been a deficit of over two million dollars because of the forex margin transactions done by the applicant. Tse therefore instructed the applicant not to trade forex on [margin] anymore. Being busy at work, Tse did not closely follow up the above instruction.", "zh-HK": "2004中，謝看到公司的《現金流量報告表》顯示流動資金減少，王向他解釋因為申請人買賣外滙孖展虧損了超過二百多萬元。謝於是指示申請人不要再進行買賣外滙孖。由於工作繁忙，謝沒有刻意跟進上述的指示。" } }, { "doc_id": 57, "seg_id": 13, "translation": { "en": "In late November 2004, Tse noticed that the updated Cash Position Report showed a continuous decrease in the free cash of Gainford, which amounted to over one hundred thousand dollars each month. He learnt from Wong that the applicant had not stopped forex margin trading. Thus he dressed the applicant down and repeated the instruction, telling her that she must immediately stop and close the forex margin trading account (ie Dah Sing forex account), and then transfer the money to other accounts for fixed deposit.", "zh-HK": "2004年11月底，謝看到更新了的《現金流量報告表》顯示佳輝流動資金持續減少，每月達十多萬元，他從王口中得知申請人並沒停止買賣外滙孖展，於是訓示申請人，並重申指示她要立刻停止買賣外滙孖展及結束外滙孖展賬戶（即大新外滙賬戶），然後將錢轉入另外賬戶做定期存款。" } }, { "doc_id": 57, "seg_id": 14, "translation": { "en": "Although having been instructed by Tse to stop twice, the applicant still continued to trade forex on margin through the Dah Sing forex account, and between January 2005 and October 2008, she had transferred the property of Gainford and choses in action under Tse’s name to the Dah Sing forex account for 16 times in order to settle the deficit resulted from forex margin transactions, which involved a total amount of $11,468,449.79:", "zh-HK": "雖然申請人收到謝兩次指示，但是她仍然繼續用大新外滙賬戶買賣外滙孖展，並且在2005年1月至2008年10月期間用佳輝的財產和謝名下的據法權產轉賬至大新外滙賬戶以結算外滙孖展交易的虧損共16次，涉及金額共$11,468,449.79：" } }, { "doc_id": 57, "seg_id": 15, "translation": { "en": "Between 3 and 31 January 2005, the applicant continued to do forex margin trading through the Dah Sing forex account, and opened 33 new forex margin contracts;", "zh-HK": "2005年1月3日至1月31日期間，申請人繼續在大新外滙賬戶買賣外滙孖展，共落盤新做了33宗外滙孖展合約；" } }, { "doc_id": 57, "seg_id": 16, "translation": { "en": "(2)By 31 January 2005, there were still 14 open forex margin contracts;", "zh-HK": "(2)2005年1月31日，大新外滙賬戶內仍有14宗外滙孖展合約未平倉；" } }, { "doc_id": 57, "seg_id": 17, "translation": { "en": "(3)31 January 2005, the applicant transferred $6,353,661.84 from the Dah Sing forex account to the Dah Sing fixed deposit account for fixed deposit of one month;", "zh-HK": "(3)2005年1月31日，申請人從大新外滙賬戶內轉賬$6,353,661.84至大新定期賬戶做一個月定期；" } }, { "doc_id": 57, "seg_id": 18, "translation": { "en": "(4)After 31 January 2005, the applicant continued to trade forex on margin through the Dah Sing forex account, and the monthly ledger report she submitted to Gainford did not reveal any of these subsequent forex margin transactions but showed only the renewal of one mature fixed deposit;", "zh-HK": "(4)2005年1月31日後，申請人繼續在大新外滙賬戶買賣外滙孖展，她交給佳輝之每月銀行賬戶結餘分項表並沒顯示其後的外滙孖展交易，只顯示出1 項定期存款於到期時獲續期；" } }, { "doc_id": 57, "seg_id": 19, "translation": { "en": "(5)Between 2 March 2005 and 27 October 2008, when money was needed for closing positions because deficit incurred by forex margin transactions was recorded in the Dah Sing forex account, the applicant transferred money from the Dah Sing fixed deposit account to the Dah Sing forex account. Sometimes when time was tight, the applicant even terminated some fixed deposit contracts in the Dah Sing fixed deposit account before maturity and transferred the money so made available to the Dah Sing forex account in order to close positions;", "zh-HK": "(5)2005年3月2日至2008年10月27日期間，大新外滙賬戶內的外滙孖展交易錄得虧損需要資金來平倉，申請人便從大新定期賬戶轉賬資金入大新外滙賬戶。有時時間緊逼，申請人還索性把大新定期賬戶內某些尚未到期的定期存款合約提早結束，抽調資金轉賬入大新外滙賬戶來平倉；" } }, { "doc_id": 57, "seg_id": 20, "translation": { "en": "(6)Between 2 March 2005 and 27 October 2008, the applicant transferred 14 sums of money from Tse’s Dah Sing fixed deposit account into the Dah Sing forex account so as to close positions;", "zh-HK": "(6)2005年3月2日至2008年10月27日期間，申請人從謝的大新定期賬戶轉賬14筆款項入大新外滙賬戶來平倉；" } }, { "doc_id": 57, "seg_id": 21, "translation": { "en": "(7)7 November 2005, the applicant transferred two sums in a total of $1,500,000.00 from the Hang Seng current account of Gainford to the Dah Sing forex account for closing positions.", "zh-HK": "(7)2005年11月7日，申請人從佳輝的恒生往來賬戶轉賬兩筆款項共$1,500,000.00入大新外滙賬戶來平倉。" } }, { "doc_id": 57, "seg_id": 22, "translation": { "en": "The details of the 16 transfers mentioned in items (6) and (7) above are set out as follows:", "zh-HK": "上文第 (6) 及 (7) 項提到的16次轉賬詳情如下：" } }, { "doc_id": 57, "seg_id": 23, "translation": { "en": "These 16 transfers are the respective thefts referred to in Charges 1 to 16.", "zh-HK": "這16次的轉賬賬分別就是第1至16項控罪所指的盜竊罪。" } }, { "doc_id": 57, "seg_id": 24, "translation": { "en": "On 18 November 2006, the applicant covertly completed and submitted a form to instruct Dah Sing Bank to change the correspondence address from the office of Gainford to her personal address for receiving documents issued by the bank, such as monthly statements and Renewal Confirmations of fixed deposits. After that, Gainford could not receive those bank documents or know about the actual situation and the balance in the accounts with Dah Sing Bank.", "zh-HK": "2006年11月18日，申請人私下填寫及提交表格指示大新銀行，將銀行發出的《月結單》及《定期續存書》等文件的收信地址由佳輝寫字樓更改至她本人地址。其後，佳輝無法收到該些銀行文件或得知大新銀行賬戶的真實情況和結餘。" } }, { "doc_id": 57, "seg_id": 25, "translation": { "en": "On 30 April 2009, being not satisfied with the applicant’s working performance, Tse Chun Kei instructed her to pass his personal affairs and bank accounts in his name to Fan Sheung Moon, the Administrative Assistant of the Marketing Department. Fan Sheung Moon asked the applicant for those bank documents but she failed to produce them even after stalling for a long time.", "zh-HK": "2009年4月30日，謝俊基因不滿申請人的工作表現，指示申請人把他個人事務及名下銀行賬戶交給巿場部行政助理范常滿處理，范常滿向申請人索取該些銀行文件，申請人遲遲未能提交。" } }, { "doc_id": 57, "seg_id": 26, "translation": { "en": "From June 2009 onwards, over a period of several months, the applicant gave Fan Sheung Moon four false Renewal Confirmations and seven false monthly Consolidated Statements. The period in question was from June to December 2009, ie the period involved in Charges 17 to 27. Subsequently, Fan Sheung Moon came to know that the applicant had covertly changed the correspondence address. He checked a batch of replacement Renewal Confirmations of fixed deposits and monthly Consolidated Statements issued by Dah Sing Bank and discovered that the actual balance should be four million odd dollars instead of twelve million as shown by the documents provided the applicant. The applicant was also in possession of a false Consolidated Statement purportedly issued by Dah Sing Bank, which is the subject matter in Charge 28.", "zh-HK": "2009年6月起數個月內，申請人陸續將交給范常滿4份虛假《定期續存書》和7份虛假按月《綜合結單》，相關時段由2009年6月至12月，即涉案第十七至廿七項控罪。其後，范常滿得悉申請人私下更改了收信地址。他核對大新銀行補發的一批《定期續存書》及按月《綜合結單》後，發現實際結餘應是四百餘萬元，而非申請人提供的文件所顯示是一千二百萬元。申請人還管有控罪廿八所指的一份偽造的大新銀行綜合結單。" } }, { "doc_id": 57, "seg_id": 27, "translation": { "en": "On 28th May, 2010 Tse dismissed the applicant. Around 8:30 pm on the same day, Tse, Tse Chun Kei, Wong, Fan Sheung Moon, the applicant and her husband discussed in a meeting about discovering false bank documents and missing of company funds. The applicant admitted at the meeting that there had been a deficit of about eight million Hong Kong dollars but denied having got any personal gain. Tse Chun Kei took an audio-record during the meeting and the two audio recordings were produced to the court by consent of both parties as prosecution exhibits. On 20 October 2010, PC6256 Fung Shu Pui (transliteration) arrested the applicant in her residence for the offence of using a false instrument. The applicant said under caution, “I understand. The things were done by me, which have nothing to do with Mr Wong.”", "zh-HK": "2010年5月28日，謝解僱申請人。同日晚上約8 時30分，謝、謝俊基、王、范常滿、申請人和申請人的丈夫開會相討有關發現偽造銀行文件和公司失錢一事。申請人在會議中承認虧損了約八百萬港元，但否認得到任何個人利益。謝俊基在會議期間錄音，兩段錄音記錄後控辯雙方同意呈堂為控方證物。2010年10月20日，警員6256馮書培在申請人的住所內就使用虛假文書罪拘捕申請人。申請人在警誡下說：「我明白，啲野係我自己整既，唔關王生事。」" } }, { "doc_id": 57, "seg_id": 28, "translation": { "en": "The forensic accountant of the Hong Kong Police Force has given expert opinion, pointing out that between 1 February 2005 and 31 May 2009, the actual loss incurred by the unauthorised forex transactions done by the applicant was HK$7,521,686.00.", "zh-HK": "香港警務處法證會計師給予專家意見，指出從2005年2月1日至2009年5月31日期間，申請人所作之未獲授權外匯交易所招致的實際損失為港幣7,521,686.00元。" } }, { "doc_id": 57, "seg_id": 29, "translation": { "en": "Defence case", "zh-HK": "辯方案情" } }, { "doc_id": 57, "seg_id": 30, "translation": { "en": "At the trial, the applicant elected [not] to give evidence or call any witness.", "zh-HK": "申請人在審訊時選擇下作供，也不傳召證人。" } }, { "doc_id": 57, "seg_id": 31, "translation": { "en": "In the cross-examination of Tse by Mr Charles Chan of Counsel representing the applicant, it was the defence’s allegation that all things done by the applicant had been done on his instructions, that he had never told the applicant to stop forex margin trading and that on the contrary had told her to continue in the hope of making up for the loss. Tse denied all such suggestions put by the defence.", "zh-HK": "從代表申請人的陳永豪大律師向謝的盤問可見，辯方指申請人所做的一切都只是按他的指示去做，他從沒有叫申請人停止買賣外匯孖展，反而叫她繼續買賣，望能以填補損失。謝對辯方的說法一概否認。" } }, { "doc_id": 57, "seg_id": 32, "translation": { "en": "Main issue in dispute", "zh-HK": "主要的爭議" } }, { "doc_id": 57, "seg_id": 33, "translation": { "en": "The main issue in dispute was whether Tse had twice told the applicant to stop trading margin and she just ignored his instructions, or not only had Tse given no such instruction, but he even told her to continue to trade on margin in the hope of making up for the loss. The determination of this issue wholly depended on the credibility and reliability of Tse’s testimony.", "zh-HK": "控辯雙方的主要爭議是，到底謝有否兩次叫申請人停止買賣孖展而她不理會指示，抑或謝不單沒有這樣，反而叫她繼續買賣孖展，望能以填補損失。這爭議如何定奪全在於謝的證言是否可信和可靠。" } }, { "doc_id": 57, "seg_id": 34, "translation": { "en": "Trial judge’s reasons for verdict", "zh-HK": "原審法官的裁決理由" } }, { "doc_id": 57, "seg_id": 35, "translation": { "en": "The trial judge first dealt with the defence challenges on Tse’s testimony point by point:", "zh-HK": "原審法官首先逐一處理辯方質疑謝證言的攻擊：" } }, { "doc_id": 57, "seg_id": 36, "translation": { "en": "“Challenges to the victim’s credibility and reliability", "zh-HK": "「事主的可信性及可靠性如何受質疑" } }, { "doc_id": 57, "seg_id": 37, "translation": { "en": "20.According to para 12 of the Submissions, the victim had twice instructed the accused to stop margin trading, which was in mid and late 2004 respectively, and Wong Chi Kit was also present on the occasion in late 2004, however, para 15 stated that Wong Chi Kit in his testimony did not mention such instructions or his presence. I find that Wong Chi Kit does not have a clear memory on the details and his testimony is not satisfactory.", "zh-HK": "20.《陳詞》第12段指事主聲稱向被告作出兩次指示停止買賣外匯孖展，分別是於2004年年中及年底，而年底該次給予指示時王智傑也在場，第15段指王智傑證詞沒提及這指示或自己在場。本席認為王智傑對事情細節沒有清晰記憶，證詞並不穩妥。" } }, { "doc_id": 57, "seg_id": 38, "translation": { "en": "21.According to paras 16 and 17 of the Submissions, there has been seven times that the victim was unwilling to give an answer when being asked why he did not request the accused to explain the reason for not complying with his first instruction of stopping forex margin trading when he instructed her on the second occasion. The victim has repeatedly emphasized in court that he had forgiven the accused. I understand that he has not been prudent in financial management or handled matters systematically. The accused did not earn much. Her non-compliance of his first instruction had already incurred a loss of several hundred-thousand dollars. Whatever explanation she gave simply could not help. He, though being unwilling, could only accept the reality. That he continued to employ the accused meant that he still accepted the accused’s overall working performance. I think the way in which he responded in court was not completely unreasonable.", "zh-HK": "21.《陳詞》第16及17第段指事主在庭上共7次也不願意回答為何給予第二次指示期間，他沒問被告為何違反第一次要她停止買賣外匯孖展的指示。事主在庭上重覆強調已原諒了被告，本席了解他的理財態度並不審慎，做事也沒特定系統，被告收入不高，違反他第一次的指示之後造成額外虧損數十萬元，不論提出甚麼解釋也於事無補，他只是無奈地接受既成現實，繼續聘用被告代表他仍然接受被告整體工作表現，本席認為他在庭上的回應方式並非全不合理。" } }, { "doc_id": 57, "seg_id": 39, "translation": { "en": "22.Para 18(1) of the Submissions queries why the victim has not asked the accused the profit and loss in forex margin trading. I understand that he was busy at work and just did not stay long at Gainford, and forex margin trading was definitely not what he was most concerned with. Had he paid more attention on this matter, it would have been discovered before the deficit reached two million odd.", "zh-HK": "22.《陳詞》第18(1) 段質疑事主沒向被告詢問買賣外匯孖展的賺蝕。本席了解他工作繁忙，在佳輝逗留時間有限，買賣外匯孖展決非他最關注事情，若他對這事情裝載的話，也不會讓虧損達到二百多萬才發現。" } }, { "doc_id": 57, "seg_id": 40, "translation": { "en": "23.Para 18(2) of the Submissions queries why the victim first said that he had not mentioned to other shareholders about using the reserve fund of the company on forex margin trading, but subsequently changed and said that he had told them. I understand that he owned 80% of the shares and could decide by himself what Gainford was going to do. He might not remember if other shareholders had been informed or take it seriously.", "zh-HK": "23.《陳詞》第18(2) 段質疑事主初說沒向其他股東提及使用公司儲備來買賣外匯孖展，其後改口說曾向他們提及。本席了解他持股80%，可自行決定佳輝做甚麼，他未必記得或深究有否知會其他股東。" } }, { "doc_id": 57, "seg_id": 41, "translation": { "en": "24.Paras 18(3) and (4) of the Submissions recount Wong Chi Kit’s testimony and query if there was a ‘meeting of three’ and if the victim had instructed her to stop forex margin trading. I find that [Wong] Chi Kit does not have a clear memory on the details and his testimony is not satisfactory.", "zh-HK": "24.《陳詞》第18(3) 及(4) 段援引王智傑證詞，質疑有否“三人會面”及事主有否指示被告停止買賣外匯孖展。本席認為不智傑對事情細節沒有清晰記憶，證詞並不穩妥。" } }, { "doc_id": 57, "seg_id": 42, "translation": { "en": "25.Paras 18(5) and (7) of the Submissions respectively query that the victim, solely by reading P16 (61) or the Cash Position Report, could not possibly know that deficit had been resulted in forex margin trading and hence he probably had looked at other materials and might have known about the deficit privately but did not give an account to the court frankly. I understand that he sometimes requested Wong Chi Kit to provide him other documents or explain some details that were not set out in the documents, which might enable him to know about the deficit incurred by forex margin trading.", "zh-HK": "25.《陳詞》第18(5) 及(7) 段分別質疑事主不可能單憑閱讀P16(61) 或《現金流報表》等文件便可知外匯孖展有虧損，他應有看過其他資料，更可能私下知道虧損一事，可是沒有坦白向法庭交代。本席了解他有時會要求王智傑提供其他文件或解釋一些文件上沒有列出的詳情，憑此他可知道外匯孖展的虧損。" } }, { "doc_id": 57, "seg_id": 43, "translation": { "en": "26.Para 18(7) of the Submissions also suggests that the wording used by Wong Chi Kit in describing these documents, eg ‘monthly investment portfilo’, ‘monthly portiolo’, ‘investment result’, ‘FX settlement’, etc, may carry different meanings, and it would be difficult for the victim to fully understand if there was any deficit with the forex margin trading. I find that Wong Chi Kit does not have a clear memory on the details and his testimony is not satisfactory.", "zh-HK": "26.《陳詞》第18(7) 段並指王智傑形容上述這些文件上的用詞，例如“monthly investment portfilo”，“monthly portiolo”，“investment result”，“FX settlement”等都可能有著不同含意，事主難以看通外匯孖展有否虧損。本席認為王智傑對事情細節沒有清晰記憶，證詞並不穩妥。" } }, { "doc_id": 57, "seg_id": 44, "translation": { "en": "27.Para 18(8) of the Submissions mentions that the accused placed a fixed deposit in the amount of $6,353,661.84 by using fund of Gainford on 31 January 2005. Defence argues this does not show that the accused was carrying out part of the victim’s instructions given on the second occasion (namely transferring money into another account and making it fixed deposit) because the accused probably would not have been trading forex on margin and placing a fixed deposit at the same time. I find that the accused did trade forex on margin and place a fixed deposit at the same time by way of privately withholding the record of forex margin transactions and providing untrue material to Wong Chi Kit at appropriate moments, giving a false impression that she had carried out the instructions.", "zh-HK": "27.《陳詞》第18(8) 段提及2005年1月31日被告用佳輝資金作定期存款$6,353,661.84，辯方指這並不反映被告此舉是履行事主的第二次指示部份內容（即是將錢轉入另外的賬戶做定期存款），因為被告應不會一邊繼續買賣外匯孖展，另一邊則做定期存款。本席認為被告確有同時買賣外匯孖展及做定期存款，方法是私下將外匯孖展的交易紀錄扣起，並適時向王智傑提供不實資料，造成她已履行指示的假象。" } }, { "doc_id": 57, "seg_id": 45, "translation": { "en": "28.Paras 18(8) and (9) of the Submissions mention that a balance in the sum of $412,607.00 has remained in the Dah Sing forex account from 31 January 2005 to 30 January 2007, which can be seen in the Ledge Report compiled by Wong Chi Kit in relation to the period from 1 January 2001 to 1 June 2010 (printed on 1 June 2010). As I interpret the meaning of this part of the submissions, the defence seems to be suggesting that if the accused had tried to create a false impression of having placed a fixed deposit as instructed, there would not have been a balance of $412,607.00 remaining in the Dah Sing forex account because the victim might learn from the computer system that this account had not been closed and then discovered her non-compliance.", "zh-HK": "28.《陳詞》第18(8) 及(9) 段提及由2005年1月31日起至2007年1月30日，有一筆$412,607.00的結餘一直留在大新外匯賬戶，這從王智傑所編製相關2001年1月1日至2010年6月1日的Ledge Report（於2010年6月1日列印）可見。本席詮釋這陳詞的意思，辯方似是指被告若要泡製已按指示做定期存款的假象，不會有$412,607.00的結餘留在大新外匯賬戶，因事主或會在電腦系統中看到這個賬戶尚未結束，發現她違反指示。" } }, { "doc_id": 57, "seg_id": 46, "translation": { "en": "29.The facts admitted by the accused include that Dah Sing Bank informed and confirmed with her on 20 November 2006 that the bank had acceded to her request made on 18 November 2006 and changed the correspondence address of the victim to her personal address. Nevertheless, it was only on 1 June 2010 that the above Ledge Report was printed out. In other words, between 20 November 2006 and 1 June 2010, the genuine record of the Dah Sing forex account was in the accused’s hand, and it was up to her to decide what information was to be provided to Wong Chi Kit for making accounts record. The report compiled by Wong Chi Kit could only rely on the oral or documentary data provided by her.", "zh-HK": "29.被告所承認的案情包括2006年11月20日已獲大新銀行因應其2006年11月18日之申請通知她，確認已將事主通訊地址改到她本人地址。可是上述該Ledge Report是於2010年6月1日才列印出來的，換句話說，2006年11月20日至2010年6月1日期間，大新外匯賬戶的真實紀錄盡在被告手中，她可決定交甚麼資料給王智傑入賬，王智傑所撰寫的報告只能取材於她提供的口頭或文件數據。" } }, { "doc_id": 57, "seg_id": 47, "translation": { "en": "30.I have seen from the affidavit of the staff of Dah Sing Bank that there was no such balance in the sum of “$412,607.00” in the Dah Sing forex account. As I understand, this is probably the total sum obtained by adding up various smaller amounts over the period from 31 January 2005 to 30 January 2007. Had the victim directly checked each item of the breakdown and given some thought, it might have been very clear. However, he was not even able to tell how many and what accounts he had with Dah Sing Bank when being asked. Having taken care of his financial matters for years, the accused definitely knew full well of his carefree attitude towards financial matters. There was simply no need to worry that he would check the accounts on the computer.", "zh-HK": "30.本席從大新銀行職員的誓章看到大新外匯賬戶並無任何“$412,607.00”的結餘，本席了解這應是2005年1月31 日至2007年1月30日期間不同細數相加而成，事主若直接查看每項明細及作出推敲，也許會一清二楚，可是他連自己在大新銀行有多少賬戶或有甚麼賬戶也答不出，被告為他理財多年，對他這鬆懈理財方法自然瞭如指掌，那怕他會在電腦查賬。" } }, { "doc_id": 57, "seg_id": 48, "translation": { "en": "31.Para 18(10) of the Submissions suggests that the bank record showed that the fixed deposit of $6,355,611.44 remained unchanged for months while there should at least be some interest, and it was impossible that the victim did not notice this. I think that the victim might not notice this given the small amount of the interest.", "zh-HK": "31.《陳詞》第18(10) 段指該定期存款$6,355,611.44多月來在銀行紀錄顯示沒有改變，至少應有利息，事主不可能沒發現。本席認為利息不多，事主未必留意到。" } }, { "doc_id": 57, "seg_id": 49, "translation": { "en": "32.Para 18(11) of the Submissions argues it is impossible that the victim has not noticed that he had signed a form to apply to Dah Sing Bank for change of correspondence address. I find that he might not notice this document when he signed.", "zh-HK": "32.《陳詞》第18(11) 段指事主不可能沒留意簽署了一份向大新銀行申請更改通訊地址的表格。本席認為他簽名時未必會留意到這份文件。" } }, { "doc_id": 57, "seg_id": 50, "translation": { "en": "33.Para 18(12) of the Submissions contends that it was impossible that the victim did not ask anything about the result of the litigations in the Mainland. As I understand, Gainford was well financed, and given that those litigations did not involve much money, there was no need for the victim to be over-concerned.”", "zh-HK": "33.《陳詞》第18(12) 段指事主不可能對內地的官司輸贏不問。本席了解佳輝財政充裕，該些官司所涉數額不大，事主不須太著緊。」" } }, { "doc_id": 57, "seg_id": 51, "translation": { "en": "And then trial judge dealt with five different issues:", "zh-HK": "原審法官然後處理5個不同的議題：" } }, { "doc_id": 57, "seg_id": 52, "translation": { "en": "“Why was it not until November 2006 that the accused instructed Dah Sing Bank to change the correspondence address", "zh-HK": "「為何被告等到2006年11月才向大新銀行指示更改通訊地址" } }, { "doc_id": 57, "seg_id": 53, "translation": { "en": "34.Para 19 of the Submissions suggests that the accused was not trying to hide from the victim the truth of continuing trading forex on margin by changing the correspondence address kept by Dah Sing Bank to her personal address. In my view, changing the address could indeed effectively prevent her colleagues from opening bank documents and discovering records of ongoing margin trading. Nevertheless, before the address was changed on 18 November 2006, she might not have thought of or dared to use this method. As time went by, she has straightened out her thought and come around to it, which then becomes useful.", "zh-HK": "34.《陳詞》第19 段指被告更改大新銀行的通訊地址到其本人地址並非要暪著事主繼續買賣外匯孖展。本席認為更改地址這方法確可有效防範同事拆開銀行文件發現仍有買賣孖展的紀錄，但是2006年11月18日更改地址之前，她未必想到用這方法，也未必敢用這方法，隨著時間過去，她想通了、看通了便用得著。" } }, { "doc_id": 57, "seg_id": 54, "translation": { "en": "The accused had no motive to steal money to continue with forex margin trading", "zh-HK": "被告沒有動機偷錢去繼續買賣外匯孖展" } }, { "doc_id": 57, "seg_id": 55, "translation": { "en": "35.According to para 20 of the Submissions, there is no evidence showing that she could get any benefit by hiding from the victim the truth of continuing with forex margin trading. In my view, the fact that within one year she managed to get her job changed from a part-time basis to a full time one and then be promoted to a post above Wong Chi Kit showed that apart from daily routine work, the victim must have appreciated her knowledge on investment very much and hence entrusted her with the forex trading on margin. In mid-2004, after she had caused Gainford a loss of two odd million dollars, the victim instructed her to stop but she just covertly disregarded him with overt pretence of compliance. All these simply reflect her reluctance to admit failure. She hoped to win back the loss but things just went against her wish.", "zh-HK": "35.《陳詞》第20 段指沒證供顯示她暪著事主繼續買賣外匯孖展對她有任何利益。本席認為她能夠在1年之間從兼職做到全職，並晉升至王智傑之上，除了日常工作之外，事主對她在投資方面的認識定是非常讚賞，於是委託她買賣外匯孖展。2004年年中，她令佳輝損失二百餘萬元，事主指示她停手，她卻陽奉陰違，無非是不服輸心態作祟，期望收復失地，誰料事與願違。" } }, { "doc_id": 57, "seg_id": 56, "translation": { "en": "The victim exercised his right and did not answer questions", "zh-HK": "事主行使權利不答問題" } }, { "doc_id": 57, "seg_id": 57, "translation": { "en": "36.Para 21 of the Submissions states that the victim has elected not to answer some questions which may be self-discriminating. I understand that those questions are related to other litigations and are put for the sole purpose of testing the credibility of his testimony. His election of not to answering in my view, does not affect the credibility of his testimony.", "zh-HK": "36.《陳詞》第21 段指事主就一些可能引致罪己的問題選擇不回答。本席了解該些問題有關其他官司，純作測試他證詞的可信性，他選擇不回答，本席認為這並不影響他證詞的可信性。" } }, { "doc_id": 57, "seg_id": 58, "translation": { "en": "Challenge the victim’s testimony with PW2’s testimony", "zh-HK": "以第2證人的證詞質疑事主的證詞" } }, { "doc_id": 57, "seg_id": 59, "translation": { "en": "37.Paras 23 and 24 of the Submissions challenge the victim’s credibility and reliability on the basis of Wong Chi Kit’s testimony. I am of the view that Wong Chi Kit does not have a clear memory on the details and his testimony is not satisfactory.", "zh-HK": "37.《陳詞》第23 及24 段以王智傑證詞作為基礎質疑事主的可信性及可靠性。本席認為王智傑對事情細節沒有清晰記憶，證詞並不穩妥。" } }, { "doc_id": 57, "seg_id": 60, "translation": { "en": "The victim and others confronted the accused afterwards", "zh-HK": "事發後事主等人與被告對質" } }, { "doc_id": 57, "seg_id": 61, "translation": { "en": "38.Para 25 of the Submissions states that on 28 May 2010, when the victim and Tse Chun Kei confronted the accused, the victim pretended not to know anything in the attempt to deceive other shareholders. I have listened to the two audio recordings but do not agree with this part of the submission. On the contrary, the accused admitted that the deficit was eight million dollars and expressed willingness to compensate. In my view, if it had only been on the victim’s instructions that the accused traded on margin and he had never told her to stop, she would have definitely blamed the victim for being a bad loser and capricious, not to mention willing to pay the victim and other shareholders eight million as compensation.”", "zh-HK": "38.《陳詞》第25 段指2010年5月28日事主及謝俊基與被告對質時，事主裝作不知情，企圖蒙騙其他股東。本席聽過該兩段錄音，並不認同這項陳詞，相反地，被告承認虧損數目為八百萬元及願意賠償，本席認為被告若只是按事主指示買賣孖展，而事主從來沒叫停的話，被告必會力陳事主反口覆舌，輸打嬴要，遑論願意賠償八百萬給事主及其他股東。」" } }, { "doc_id": 57, "seg_id": 62, "translation": { "en": "Finally, the trial judge gave the verdict:", "zh-HK": "最後，原審法官裁決：" } }, { "doc_id": 57, "seg_id": 63, "translation": { "en": "“Verdict", "zh-HK": "「本案裁決" } }, { "doc_id": 57, "seg_id": 64, "translation": { "en": "39.The accused has a clear record, for which I have adopted views more favourable to her in considering her propensity of committing the crime in this case. In light of the above analyses, I find that the victim had instructed the accused to stop trading forex on margin back in mid-2004, and in late 2004, in addition to reiterating such instruction, he also instructed her to close the forex margin account and place fixed deposits with the money. The accused did not comply with the instructions given on these two occasions, and, while knowing full well that she had no authority from Gainford, privately appropriated the funds of Gainford in the total amount of $11,468.449.79, and traded forex on margin while keeping the victim and other shareholders of Gainford in the dark.", "zh-HK": "39.被告並無刑事紀錄，本席考慮其犯案的傾向性時應採對她較有利的觀點。本席基於上文種種分析，認為事主在2004年年中已指示被告停止買賣外匯孖展，在2004年年底除了重申這指示之外，並另指示被告將該外匯孖展賬戶結束及將錢轉做定期存款。被告違反這兩次指示，明知不獲授權而私下挪用佳輝的資金共$11,468.449.79，暪著事主及佳輝其他股東買賣外匯孖展。" } }, { "doc_id": 57, "seg_id": 65, "translation": { "en": "40.In my view, a reasonable man would consider the accused act as dishonest, and the accused also knew that she would be considered by a reasonable as dishonest. The prosecution has proved Charges 1 to 16 beyond reasonable doubt. The accused is convicted as charged.”", "zh-HK": "40.本席認為一個思想合理的人會視被告行為屬不誠實，而被告亦知道一個思想合理的人會視之為不誠實。控方已在毫無合理疑點準則證明第1至16項控罪，被告罪名成立。」" } }, { "doc_id": 57, "seg_id": 66, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理據" } }, { "doc_id": 57, "seg_id": 67, "translation": { "en": "Mr Robert Pang SC, advanced four grounds of appeal on behalf of the applicant, which have been considered by us one by one.", "zh-HK": "彭耀鴻資深大律師代表申請人提出四項上訴理由。本庭現逐一審視。" } }, { "doc_id": 57, "seg_id": 68, "translation": { "en": "Ground 1", "zh-HK": "理據一" } }, { "doc_id": 57, "seg_id": 69, "translation": { "en": "Ground 1 criticises the trial judge for wrongfully overlooking or failing to accord sufficient weight to a number of matters in considering the credibility of Tse’s testimony. Mr Pang put forward five arguments to support this first ground.", "zh-HK": "理據一批評原審法官在考慮謝證供的可信性時，錯誤地忽略了多個事項，或沒有給予這些事項足夠比重。彭資深大律師提出5個論點以支持理據一。" } }, { "doc_id": 57, "seg_id": 70, "translation": { "en": "Argument 1", "zh-HK": "論點一" } }, { "doc_id": 57, "seg_id": 71, "translation": { "en": "First, Mr Pang commented that the evidence in the present case have inherent improbability in the following three regards potentially:", "zh-HK": "首先，彭資深大律師認為本案的證據潛在以下3 個固有不可能之處。" } }, { "doc_id": 57, "seg_id": 72, "translation": { "en": "26.1Firstly, Mr Pang said that after Tse had requested the applicant to stop forex speculation and she ignored, he again gave specific instructions to tell her to stop but did not take any step to ensure her compliance. Mr Pang criticised Tse’s act for being not only at variance with what a normal and reasonable superior would do but also illogical. On the face of it, Mr Pang’s point seems reasonable, however, it just cannot stand if Tse’s evidence is considered thoroughly in its entirety. The reasonable inference to be drawn from the undisputed part of Tse’s testimony was that Tse had trusted the applicant very much, otherwise, he would not have authorized her to deal with the Hang Seng current [account], Dah Sing fixed deposit accounts and Dah Sing forex account; and that he knew nothing whatsoever about margin trading and it was the applicant who suggested trading on margin and he wholly relied on her in operating the Dah Sing forex account. In 2004, when he discovered the deficit of two million odd dollars resulting from margin trading, he still forgave the applicant and only told her twice to stop trading but did not withdraw the authorization given to her for handling the bank accounts, showing that he still trusted her. Under such circumstances, it is understandable that Tse did not at that time take any step to ensure the applicant’s compliance with his instructions.", "zh-HK": "26.1第一，彭資深大律師指，謝要求申請人停止外滙炒賣後，她仍無視其指示，於是他再度發出明確指示要求申請人停止外滙炒賣，但他卻不採取任何措施去確保申請人聽從其指示。彭資深大律師批評謝的行為既不符合一個正常而合理上司的作為，也違反邏輯。表面看來，彭資深大律師的說法似乎有理，但若仔細考慮謝的整體證供，便知道他的立場不能成立。根據謝不具爭議的證供而得出的合理推論是，謝對申請人十分信賴，否則不可能授權她處理恒生往來賬戶平、大新定期賬戶及大新外滙賬戶；而他對孖展買賣全不熟悉，是申請人提議買賣孖展，而他亦全靠申請人操作大新外滙賬戶。當2004年他發現孖展買賣已虧損了兩百多萬，他仍然原諒申請人，只是兩次叫她停止買賣，但沒有從她收回處理銀行賬戶的授權，可見他仍然信任她。在這種情形下，謝當時沒有採取任何措施去確保申請人聽從其指示，是可以理解的。" } }, { "doc_id": 57, "seg_id": 73, "translation": { "en": "26.2Secondly, [according to] Mr Pang, it was illogical that the applicant, while having no personal benefit, still continued with forex speculation despite Tse having already instructed her to stop on two separate occasions. On the face of it, it seems that the applicant had not got any personal financial benefit by contravening Tse’s instructions and continuing with margin trading, but this does not necessarily mean that her behaviour was illogical. As pointed out by trial judge, Tse highly appreciated the applicant’s knowledge in investment, and it might be due to her reluctance to accept failure that she disregarded Tse’s instructions.", "zh-HK": "26.2第二，彭資深大律師申請人在毫無個人得益的情況底下，仍然會無視謝兩度發出的指示而繼續外滙炒賣的指示，此舉不合邏輯。表面看來，申請人似乎沒有從違反謝的指示而繼續買賣孖展得到個人經濟得益，但這不等於她的行為是不合邏輯。正如原審法官指出，謝對申請人在投資方面的認識定是非常賞識，而她漠視謝的指令，可能是出於不服輸的心理。" } }, { "doc_id": 57, "seg_id": 74, "translation": { "en": "26.3Thirdly, Mr Pang said that Tse could not have signed the form of applying to the bank for changing the address of his personal account from the Gainford address to the applicant’s residential address without noticing the nature of the document, and that the applicant would not have put herself at risk by [asking Tse] to sign the form in the hope that he would not notice its content. Mr Pang criticized trial judge for being unreasonable in accepting Tse’s claim of having no knowledge about the change of the address of the account because when he signed the “address amendment form”, he might not notice that it was an application made to the bank for changing address. Mr Pang further said that Tse had testified that his staff would put all the documents to be signed on his desk but would not explain the contents to him one by one, and he would read them by himself. Moreover, given that an application for changing address was not a document of daily routine, the applicant’s act could have been revealed as long as Tse had paid a little attention to the content of the form before signing it, hence it did not make sense that the applicant would have taken such a big risk to ask Tse to sign that form. In our view, there is nothing wrong for trial judge to accept Tse’s testimony. According to his testimony, he did not necessarily know the content of the documents that he signed, thus it was not impossible that the applicant would have taken such risk. Mr Pang argued in his oral submission that the applicant made the application for changing address on 18 November 2006 which was almost two years after Tse had given the applicant the instruction, and if the applicant had really contravened the instructions, she should have the address changed as soon as possible so as to disguise the truth. Nevertheless, conversely, why did the applicant have to change the address if it was not for disguising the truth? Even if the applicant’s version, namely Tse had told her to help hiding from other shareholders the loss in margin trading, was accepted, there was just no need to change the address because it sufficed that he simply told her to keep the monthly statements and renewal confirmations of fixed deposits away from them. Making a change from the company address to the applicant’s personal residential address aroused suspicion even more easily.", "zh-HK": "26.3第三，彭資深大律師指，謝不可能在沒留意的情況下簽署了一份向銀行申請更改他個人戶口地址的表格，把地址從佳輝改為她個人的住址；而申請人亦不會冒險謝要求簽署該表格並希望他人不會留意表格內容。彭資深大律師批評，原審法官指謝在簽署「更改地址通知書」時，未必會留意那是一份向銀行申請更改地址的表格，因此接受謝對更改戶口地址不知情的說法，這是不合常理的。彭資深大律師又指，謝作供時指公司職員會把所有要簽署的文件交放到他桌面，但不會逐一向他講解內容，而他自己會閱讀的；再者，更改地址申請並非一般日常常用的文件，謝只要在簽署前稍稍留意表格內容，便會揭發申請人的行為，而申請人仍然會冒這樣大的風險要求謝簽署該表格，實是於理不合。本庭認為原審法官接納謝的證供沒有不妥之處。而根據他的證供，他對他所簽署的文件內容不一定會知道，申請人冒上剛才說的風險亦非不可能。口頭陳述時，彭資深大律師指出，申請人更改地址是在2006 年11月18日提出的，事隔謝給予申請人指示差不多兩年之久，申請人若真的有違反指示，理應盡快更改地址以隱瞞真相。但是，掉過頭說，若非要隱瞞事實的真相，申請人又可必要更改地址？即使接納申請人的說法，即謝叫她幫忙瞞著其他股東，不讓他們知道買賣孖展的損失，根本亦無需更改地址，因為只要叫她不讓他們看到銀行發出的月結單及定期續存書便可，把地址改從公司的地址為申請人的個人住址更容易惹人疑竇。" } }, { "doc_id": 57, "seg_id": 75, "translation": { "en": "We find all the above points put forward by Mr Pang to support the inherently unreliability of the testimony fail.", "zh-HK": "本庭認為，彭資深大律師上述有關證供存在固有不可靠性的說法全不成立。" } }, { "doc_id": 57, "seg_id": 76, "translation": { "en": "Argument 2", "zh-HK": "論點二" } }, { "doc_id": 57, "seg_id": 77, "translation": { "en": "Mr Pang said in the second argument that the applicant had continued forex speculation with loss incurred could be easily seen on the contemporaneous documents, such as bank statements, which Tse all along could have obtained readily. Tse, however has explained this in detail in his testimony. He said that it was never his practice to personally open and read the mails sent directly from the banks to his company or those forwarded to his company by his “company secretary”, and the mails sent to his company would first be received by the Accounts Department and then passed to the applicant for her to open and read. The applicant should pass documents required to be put into the accounts record to Wong. Not only did Tse never open letters by himself, he just did not even know what mails he got. The applicant had the authority to open and read all bank documents. In our view, as pointed out by trial judge, had Tse directly checked each item of the breakdown in the Dah Sing forex account and given some thought, he might have been very clear of the real situation. However, he was not even able to tell how many and what accounts he had with Dah Sing Bank when being asked. Having taken care of his financial matters for years, the applicant definitely knew full well of his carefree attitude towards financial matters, and there was simply no need to worry that he would check the accounts on the computer by himself.", "zh-HK": "彭資深大律師的第二個論點是，申請人繼續參與外滙炒賣及蒙受損失一事在銀行結單等即時文件可一目了然，而謝一直可以輕易獲取該些銀行結單的。但是，謝在作供時已經就這方面作了詳盡的解釋。他說他從沒有親自拆閱由銀行直接寄去他公司的郵件或拆閱由他的「公司秘書」轉寄去他公司的郵件的習慣，而寄往他公司的郵件是會由會計部收妥後交予申請人拆閱。如果文件是需要入賬做紀錄的那一類，申請人便應交給王入賬。謝不但從不會親自拆信，他也不會知道有甚麼郵件寄了給他。所有銀行信件申請人都有權拆閱的。本庭認為，正如原審法官指出，如果謝直接查看大新外匯賬戶的每項明細並作出推敲，他也許會一清二楚真實的情況，可是他連自己在大新銀行有多少個賬戶或有甚麼賬戶他也答不出，申請人為他理財多年，對於他這鬆懈的理財方式自然瞭如指掌，那用怕謝會自己在電腦查賬。" } }, { "doc_id": 57, "seg_id": 78, "translation": { "en": "Therefore, Mr Pang’s second argument fails.", "zh-HK": "因此，彭資深大律師第二個論點不成立。" } }, { "doc_id": 57, "seg_id": 79, "translation": { "en": "Argument 3", "zh-HK": "論點三" } }, { "doc_id": 57, "seg_id": 80, "translation": { "en": "Mr Pang’s third argument is that Tse has refused to answer some possibly self-incriminating questions in respect of certain offences, which must have an impact on the credibility of his testimony. Mr Pang submitted as follow:", "zh-HK": "彭資深大律師的第三個論點是，謝拒絕回答可能在某些罪行上自證其罪（self-incriminating）的問題，這必定影響其證供之可信性。彭資深大律師的陳詞如下：" } }, { "doc_id": 57, "seg_id": 81, "translation": { "en": "30.1Firstly, when a witness is asked some questions during cross-examination for his credibility to be assessed, which may be “self-incriminating”, the witness is entitled to exercise the right against self-incrimination and refuse to answer. If that witness so decides, the court is entitled to draw adverse inferences against him: para 25 in the judgment of HKSAR v Smith, Ma Theresa Sanggalang, HCMA 246/2012, 18 January 2013 (unreported).", "zh-HK": "30.1首先，當一名證人在盤問下被問及一些測試其可信性的問題時，若該些問題有機會導致其「自證其罪」，該證人是有權行駛其「自證其罪」特權，拒絕回答該些問題。而若該證人決定行駛權利不回答問題，法庭有權作出對其可信性不利的推斷：HKSAR v Smith, Ma Theresa Sanggalang, HCMA 246/2012（未經彙報），2013年1月18日的判案書第25段。" } }, { "doc_id": 57, "seg_id": 82, "translation": { "en": "30.2Further, that a person exercises the right to refuse to answer questions certainly affects the overall evidence of the case, in the sense that the completeness of the evidence is hampered. In analyzing the credibility and reliability of a witness, the court needs to consider the evidence of the case in its entirety, and such analysis is therefore affected by the witness’s refusal to answer: para 72 in the judgment of HKSAR v Ying Jim Ming, Jimmy & Ors, HCMA 432/2009, dated 6 May 2010 (unreported).", "zh-HK": "30.2此外，證人行駛權利拒絕回答問題，必然對案件整體證供有所影響，令證供缺乏完整性。而法庭分析一名證人的可信可靠性時，需要考慮到案件整體證供，因此證人拒絕回答問題此舉必然影響法庭就其可信可靠性的分析：HKSAR v Ying Jim Ming, Jimmy & Ors, HCMA 432/2009（未經彙報），2010年5月6日的判案書第72段。" } }, { "doc_id": 57, "seg_id": 83, "translation": { "en": "30.3As far as the present case is concerned, Tse exercised his right when being asked a series of questions involving falsifying documents in civil litigations and refused to answer all such questions for seven times. Although he was entitled to do so, the refusal definitely affected the analysis made by the court on the credibility and reliability of his evidence. First, Tse has refused to answer some questions relevant to his credibility, thereby deprived the court of the whole picture of the issue concerned. Second, Tse gave evidence selectively, revealing his purposeful selective and calculating character and showing that he is one of those witnesses who prefer not telling the court the whole truth to carefully protecting himself.", "zh-HK": "30.3就本案情況而言，謝被問及一連串涉及在民事訴訟中造假文件的問題時行駛其權利，一律拒絕回答有關問題七次，雖然可行，但必然影響法庭對其證供可信可靠性的分析。第一，謝拒絕回答一些與其可信性有關的問題，導致法庭對有關議題缺少了一個全面的了解。第二，謝選擇性地作供，展示了其故意取捨、有計謀的一面，亦顯示他是會小心保護自己而不向法庭全盤托出的那類證人。" } }, { "doc_id": 57, "seg_id": 84, "translation": { "en": "30.4After the court has given a witness warning against self-incrimination, if the witness elects to answer, he may face subsequent criminal prosecution; if the witness elects not to answer, he would certainly have to face criticism of the court for his election and accept being regarded by the court as an uncooperative witness withholding something, which would have an impact on the overall evidence of the party he is testifying for.", "zh-HK": "30.4當法庭給予一名證人警告提醒其免使自我入罪權利（warning against self-incrimination）後，該證人若選擇回答，他其後可能要面對被刑事起訴；若他選擇不回答，必然要面對法庭對他此舉的批評，接受法庭會視他為不合作或有所隱瞞之證人，對他代表一方的整體證供亦會有所影響。" } }, { "doc_id": 57, "seg_id": 85, "translation": { "en": "30.5In fact, trial judge mentioned the following point when giving the warning against self-incrimination:", "zh-HK": "30.5其實，原審法官在給予免使自我入罪警告時提及到以下一點：" } }, { "doc_id": 57, "seg_id": 86, "translation": { "en": "“Of course, whether you answer or not answer has its respective advantages; and that means whether you answer or not has its respective disadvantages … What are the pros and cons of giving an answer, and what are the pros and cons of not answering? Or what may be the implication in future, for example, I ── ‘Would the development of my matter as a whole be affected, or would I personally be affected?’ You may discuss with your lawyer.”", "zh-HK": "“固然，當然你答有答嘅好處，唔答有唔答嘅好處，即係答有壞處，唔答亦都有壞處…答有咩嘢好處、唔好處，唔答有咩嘢好處、唔好處呢？又或者日後有咩嘢牽連呢，譬如我──「會唔會影響到我成件事嗰個發展，或者影響到我個人呀咁呢？」你就可以同你律師傾。”" } }, { "doc_id": 57, "seg_id": 87, "translation": { "en": "The above warning given by trial judge told us that election of not to answer had its disadvantages. Among what trial judge said, “would the development of my matter as a whole be affected” must be referring to whether the prosecution case as a whole would be affected by a refusal to answer; and “I personally be affected” must be referring to whether giving an answer would be self-incriminating. Nevertheless, trial judge in giving the verdict did not analyze how Tse’s credibility and reliability and the prosecution case as a whole were affected by his election of not to answer, and on the contrary, he said that Tse’s election of not to answer did not affect his credibility.", "zh-HK": "以上原審法官的警告道出了證人選擇不回答是有其壞處的。其中，原審法官所指的「會唔會影響到我成件事嗰個發展」必然是指不回答會否影響控方整體案情；而「影響到我個人」必然是指回答會否使自證其罪。可是，原審法官在裁決時，並沒有就謝不回答之選擇對其可信可靠性及控方整體案情之影響作出分析，反而說謝選擇不回答並不影響其可信性。" } }, { "doc_id": 57, "seg_id": 88, "translation": { "en": "In response to Mr Pang’s suggestions in the above paras 30.1 and 30.2, the respondent said that the court could not draw any adverse inference against a witness who has refused to answer possibly self-incriminating questions and cited Wentworth v Lloyd (1864) 10 HL Case 589 in support.", "zh-HK": "對於彭資深大律師在上文30.1及30.2段的主張，答辯人的回應是，法庭不能因證人拒絕回答可能自證其罪的問題而作出對他不利的推論。答辯人引援Wentworth v Lloyd (1864) 10 HL Case 589以支持這論點。" } }, { "doc_id": 57, "seg_id": 89, "translation": { "en": "In the course of testifying in court, a witness may exercise the common law privilege to refuse to answer possibly self-discriminating questions, which is a deep-rooted legal principle established for a long time: see Riberio PJ’s judgment at p156D-F in HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133. This privilege is not only a principle of the law of evidence, but also the fundamental and substantial right of a witness, of which the importance is obvious. When a witness testifies under oath in court, he must answer questions raised by the judge and both the prosecution and the defence, or he may be held in contempt of court; and in facing possibly self-incriminating questions, if he does not have the privilege to refuse to answer them, he would be put in a trilemma: (1) if the answer must be true, it might be self-incriminating; (2) it would be perjury if the answer is false; and (3) refusal to answer may lead to accusation of being in contempt of court. This privilege not only protects the witness from criminal liability arising from his own testimony, but also ensures that he would not give false evidence or be held in contempt of court because of refusing to answer relevant questions.", "zh-HK": "在法庭上作證期間，一位證人可行使普通法所賦予的特權，拒絕回答可能自證其罪的問題，這是由來已久、根深蒂固的法律原則：見HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133，常任法官李義的判詞第156頁D-F行。這特權不僅是證據法的原則，更是證人基本及實質的權利，其重要性顯而易見。當一位證人在法庭上宣誓下作供，他必須回答法官和控辯雙方的問題，否則可能被指蔑視法庭；面對可能自證其罪的問題，若沒有拒絕回答這些問題的特權，他便會陷在三難之間：（一）若回答則必須說真話，這可能自證其罪；（二）若以假話回答便是作假證供；（三）若索性不回答，則可能被指蔑視法庭。這項特權不僅保護證人以免他因自己的證供招來刑責，亦能確保他不會作假證供或因拒絕回答相關的問題而被指蔑視法庭。" } }, { "doc_id": 57, "seg_id": 90, "translation": { "en": "Since this is the essence of this important privilege, the court cannot, solely on the basis of the witness’s refusal to answer potentially self-incriminating questions, infer that his evidence is incredible or unreliable for the reason that his evidence is incomplete, otherwise the actual function of the privilege would be undermined. If the court were bound to find a witness’s evidence incredible or unreliable because of his refusal to answer possibly self-incriminating questions, the witness might then choose to answer those self-incriminating questions (regardless of the truthfulness of the answers) in order to ensure the credibility of his evidence; and if he does so, he just cannot be protected by the privilege. I therefore cannot accept Mr Pang’s proposition.", "zh-HK": "這既是這項重要特權的本質，法庭便不能單單因為證人拒絕回答可能自證其罪的問題，便以其證供缺乏完整性為理由，推斷他的證供不可信或不可靠；否則便會削弱這項特權的實際效用，因為若證人拒絕回答可能自證其罪的問題，法庭便必然認為他的證供是不可信或不可靠的，證人可能為了確保他的證供可信，選擇回答那些自證其罪的問題（無論答案是真是假都好），他若真的這樣做，便得不到特權的保障。因此，本庭不能接納彭資深大律師的主張。" } }, { "doc_id": 57, "seg_id": 91, "translation": { "en": "Both cases cited by Mr Pang are of the Court of First Instance, which do not bind this court. In any event, in those two cases, the Court of First Instance only held that trial judge may assess the credibility of a witness’s overall evidence by considering his refusal to answer possibly self-incriminating questions, however, this does not mean that the court has to infer a witness’s evidence to be incredible because he has refused to answer.", "zh-HK": "彭資深大律師所引援的兩個案例，都是原訟法庭的案件，對本庭無約束力。無論如何，在那兩件案件中，原訟法庭法官只是認為原審裁判官可以因證人拒絕回答可能自證其罪的問題，而考慮他證供整體的可信性，但這不是說法庭必然會因證人拒絕回答那些問題便推斷他的證供不可信。" } }, { "doc_id": 57, "seg_id": 92, "translation": { "en": "On the other hand, we agree that when a witness refuses to answer possibly self-incriminating questions, his evidence may be incomplete as a whole, and therefore the court cannot be barred from drawing adverse inferences against him solely because he has exercised his privilege under common law. In the case of Wentworth v Lloyd cited by the respondent, what is involved, inter alia, is legal profession privilege. The House of Lord held the view that the court could not draw any adverse inference against the credibility of a witness who has exercised this privilege, or otherwise no one would dare to seek legal advice, as Lord Westbury has said:", "zh-HK": "另一方面，本庭認同當一位證人拒絕回答可能自證其罪的問題時，他整體的證供可能不完整，所以法庭不能單單因為他是行使普通法所賦予他的特權，就不能作出對他證供不利的推論。答辯人所引援的Wentworth v Lloyd一案，其中所涉及的是法律專業特權（legal profession privilege），上議院認為法庭不能因證人行使這特權便作出對他可信性不利的推斷，否則無人敢尋求法律意見，正如上議院法官Lord Westbury說：" } }, { "doc_id": 57, "seg_id": 93, "translation": { "en": "“As Lord Brougham says, when speaking, in Bolton v The Corporation of Liverpool (1 Myl and K 94, 95), of the supposed right to compel the disclosure of such communications, ‘It is plain that the course of justice must stop if such a right exist. No man will dare to consult a professional adviser with a view to his defence, or to the enforcement of his rights.’ The exclusion of such evidence is for the general interest of the community, and therefore to say that when a party refuses to permit professional confidence to be broken, everything must be taken most strongly against him, what is it but to deny him the protection which, for public purposes, the law affords him, and utterly to take away a privilege which can thus only be asserted to his prejudice. I have been drawn aside from considering the facts of this case through an apprehension that the authority of the Master of the Rolls might be hereafter asserted as establishing what appears to me to be a most serious departure from the principles of the law of evidence applicable to professional confidence.”", "zh-HK": "“As Lord Brougham says, when speaking, in Bolton v The Corporation of Liverpool (1 Myl and K 94, 95), of the supposed right to compel the disclosure of such communications, ‘It is plain that the course of justice must stop if such a right exist. No man will dare to consult a professional adviser with a view to his defence, or to the enforcement of his rights.’ The exclusion of such evidence is for the general interest of the community, and therefore to say that when a party refuses to permit professional confidence to be broken, everything must be taken most strongly against him, what is it but to deny him the protection which, for public purposes, the law affords him, and utterly to take away a privilege which can thus only be asserted to his prejudice. I have been drawn aside from considering the facts of this case through an apprehension that the authority of the Master of the Rolls might be hereafter asserted as establishing what appears to me to be a most serious departure from the principles of the law of evidence applicable to professional confidence.”" } }, { "doc_id": 57, "seg_id": 94, "translation": { "en": "Wentworth v Lloyd did not have the so-called legal principle laid down as suggested by the respondent. Therefore, we cannot accept the respondent’s proposition either.", "zh-HK": "Wentworth v Lloyd一案並無有定下如答辯人所謂的法律原則。因此，本庭也不能接納答辯人的主張。" } }, { "doc_id": 57, "seg_id": 95, "translation": { "en": "In our view, when a witness declines to answer possibly self-incriminating questions, the court may consider and determine if his overall evidence would be affected by looking at the actual situation of the case. On one hand, the court has to recognise that the witness is perfectly entitled to enjoy such privilege and cannot infer that he is untrustworthy or unreliable solely because he has declined to answer those questions; on the other hand, the court has to realise that the witness’s testimony may be incomplete to a certain extent and this may affect the analysis and assessment made by the court on his evidence as a whole. It all depends on the actual situation of the case. In general, if the questions concerned are irrelevant to the dispute(s) in the case, the court would be slow in drawing adverse inference against the witness, however, if the questions are relevant, then the court may consider and determine whether this would affect the credibility of his evidence as a whole by looking at the actual situation.", "zh-HK": "本庭認為，當證人拒絕回答可能自證其罪的問題時，法庭可以根據案件實際的情況而考慮及決定這會否對他整體證供有影響。一面，法庭要確認證人絕對有特權這樣做，不能單單因他拒絕回答那些問題便推斷他不可信或不可靠；另一面，法庭亦要知道在某程度上說，證人的證言可能並不完整，因而可能影響法庭對他整體證供的分析及評估。一切視乎實際情況而定。一般說來，若有關的問題和案件的爭議無關，法庭不會輕易對證人作出不利的推斷，但若問題和案件的爭議有關，則法庭可根據實際情形考慮和決定是否影響他證供的可信性。" } }, { "doc_id": 57, "seg_id": 96, "translation": { "en": "In the present case, the questions that Tse refused to answer were only related to other civil litigations, which, although were relevant to his honesty, were asked merely for testing the credibility of his testimony. It was the trial judge’s view that Tse’s election of not to answer those questions did not affect the credibility of his testimony. We find that trial judge as the judge of facts was perfectly entitled to make such a finding.", "zh-HK": "在本案中，謝選擇不回答的問題都只是有關於其他的民事訴訟，雖然都和他是否誠實有關，但問這些問題的目的純粹是測試他證詞的可信性，原審法官認為謝選擇不回答那些問題並沒有影響到謝證詞的可信性。本庭認為原審法官作為事實裁斷者，絕對有權作出這樣的裁斷。" } }, { "doc_id": 57, "seg_id": 97, "translation": { "en": "Therefore, Mr Pang’s third argument fails.", "zh-HK": "因此，彭資深大律師第三個論點不成立。" } }, { "doc_id": 57, "seg_id": 98, "translation": { "en": "Argument 4", "zh-HK": "論點四" } }, { "doc_id": 57, "seg_id": 99, "translation": { "en": "Mr Pang’s fourth argument was that when Tse was asked why he did not request the applicant to explain after discovering the applicant had ignored his instructions and continued with forex speculation, he repeatedly avoided the questions and beat around the bush, indicating that he must be untrustworthy. When Tse was being cross-examined by the trial judge, the trial judge obviously found those questions important and pertinent and that Tse deliberately refused to answer them, however, in his reasons for verdict, he found “the way how [Tse] responded in court was not completely unreasonable”.", "zh-HK": "彭資深大律師的第四個論點是，謝在被問及為何發現申請人無視其指示繼續炒賣外滙後，並沒有要求申請人作出解釋時，他多次迴避問題，並且轉彎抹角，此舉必然顯示謝並不可信。原審法官在盤問謝的時候明顯認為該些問題是重要而到題的，亦明顯認為謝是故意不作答，但到裁決理由時，卻認為謝「在庭上的回應方式並非全不合理」。" } }, { "doc_id": 57, "seg_id": 100, "translation": { "en": "Tse’s evidence is in fact very clear. When Tse first found out the applicant had not complied with his instructions, he did dress her down but did not request her to explain why she had “disobeyed the order”. When being asked if he had requested for any explanation, he was not evasive. His answer was “No”. As to why no explanation was requested, he also responded spontaneously. He said he at that time thought that the loss could not be reverted and that he himself should also be held responsible because he had at the beginning given the applicant the “power to place orders”. At that time, he forgave the applicant.", "zh-HK": "謝的證供其實十分清晰。當謝首次發現申請人沒有聽從他的指示時，他有怪責申請人但並無要求她解釋為甚麼她「抗旨」。他並沒有迴避他有否要求解釋。他的答案是：「冇」。至於為什麼不要求解釋，他也即時作出了回應。他說他當時心態是輸了便輸了，他本人也有些責任，因為一開始是他給申請人「落盤權」的。當時他原諒了申請人。" } }, { "doc_id": 57, "seg_id": 101, "translation": { "en": "Therefore, Mr Pang’s fourth argument fails.", "zh-HK": "因此，彭資深大律師第四個論點不成立。" } }, { "doc_id": 57, "seg_id": 102, "translation": { "en": "Argument 5", "zh-HK": "論點五" } }, { "doc_id": 57, "seg_id": 103, "translation": { "en": "Mr Pang’s fifth argument was the obvious difference between the testimonies of Tse and Wong on the issue of whether there had been a meeting of three in late November 2004. The former said the applicant was requested to stop speculating in the market in that meeting of three, but the latter said there was no such meeting.", "zh-HK": "彭資深大律師第五個論點是，就有否在2004年11 月底舉行三人會面的課題上，謝和王的證供有明顯分歧，前者說的確曾在那次三人會面中要求申請人停止炒賣，而後者則指該三人會面並無發生。" } }, { "doc_id": 57, "seg_id": 104, "translation": { "en": "In our view, trial judge must have his reasons for accepting Tse’s evidence, and we are in no position to intervene. Therefore, Mr Pang’s fifth argument fails.", "zh-HK": "本庭認為，原審法官接納謝的證供，自有其理由支持，本庭沒有立場可以干預。因此，彭資深大律師第五個論點不成立。" } }, { "doc_id": 57, "seg_id": 105, "translation": { "en": "In light of the above reasons, Ground 1 fails.", "zh-HK": "基於上述理由，理據一不成立。" } }, { "doc_id": 57, "seg_id": 106, "translation": { "en": "Ground 2", "zh-HK": "理據二" } }, { "doc_id": 57, "seg_id": 107, "translation": { "en": "Ground 2 criticises trial judge for wrongfully suggesting that Wong did not have a clear memory on the issue of whether there had been any meeting of three while in fact Wong clearly specified in his testimony that there had been no such meeting.", "zh-HK": "理據二批評原審法官錯誤地指出王對有否舉行三人會面的課題沒有清晰的記憶，而事實上他作供時清晰明確地指出該三人會面並無發生。" } }, { "doc_id": 57, "seg_id": 108, "translation": { "en": "Actually, in the cross-examination of Wong, he was never asked if, as he could remember, there had been any “meeting of three”. Instead, he was only asked about the circumstances under which Tse told him about the Dah Sing forex account. Wong never said that it was a meeting. He could not even remember if there was any colleague near him. The trial judge thought that since Wong no longer had any clear recollection of the details of the event, it was not unsafe to say so.", "zh-HK": "其實，王在盤問中並沒有被問及在他記憶裡曾否有一個“三人會議”。王在盤問中只被問到的是謝向他講述大新外匯賬戶時的情況。王從沒有說那一次是一個會議。他連有沒有其他同事在他附近也記不到。原審法官認為由於王對事情的細節已無清晰記憶，這說法並無不穩妥之處。" } }, { "doc_id": 57, "seg_id": 109, "translation": { "en": "Ground 2 fails.", "zh-HK": "理據二不成立。" } }, { "doc_id": 57, "seg_id": 110, "translation": { "en": "Ground 3", "zh-HK": "理據三" } }, { "doc_id": 57, "seg_id": 111, "translation": { "en": "Ground 3 criticises the trial judge for wrongfully justifying the deficiencies of or inherent improbabilities in the prosecution case or Tse’s evidence and those justifications lacked evidential basis.", "zh-HK": "理據三批評原審法官錯誤地為控方案情或謝證供的不足或固有不可能的地方作出解釋，而該些解釋是沒有證據基礎的。" } }, { "doc_id": 57, "seg_id": 112, "translation": { "en": "Mr Pang puts forward four points:", "zh-HK": "彭資深大律師指出4點：" } }, { "doc_id": 57, "seg_id": 113, "translation": { "en": "49.1In his testimony, Tse first said he had not mentioned to other shareholders about using Gainford’s reserve to trade forex on margin, and subsequently changed to say that he had. As to the defence’s attack on such contradiction in this part of the testimony, the trial judge said that Tse who had a shareholding of 80% did not necessarily remember or concern if other shareholders had been informed, which in fact has never been PW1’s explanation.", "zh-HK": "49.1謝作供初時指其沒有向其他股東提及使用佳輝的儲備來買賣外滙孖展，其後改口說曾向他們提及，就辯方對這證供上的矛盾的攻擊，原審法官指謝持股80%，未必記得或深究其有否知會其他股東，但事實上控方第一證人從未以此作解釋。" } }, { "doc_id": 57, "seg_id": 114, "translation": { "en": "49.2Tse claimed that by looking at exhibit P16(61) or P27 (Cash Position Report), one would know Gainford’s forex account had suffered loss in the speculation in the market, but in fact, these two documents alone could tell no detail of the forex account. The defence suggested this showed that Tse had other materials which enabled him to privately know the loss in speculation through the forex account. However, the trial judge just by conjecture said that Tse “sometimes would ask [Wong] to provide other documents or explain some of the details which were not set out in the documents” without specifying what documents Wong had provided or what factual basis he relied on.", "zh-HK": "49.2謝聲稱從證物P16(61) 或證物P27（現金流表）可知佳輝外滙戶口有炒賣損失，但事實上單看這兩份文件並不會得知外滙戶口的詳情，辯方指這顯示謝有其他資料令他私下知道外滙戶口有炒賣損失，而原審法官卻推測他「有時會要求［ 王 ］提供其他文件或解釋一些文件上沒有列出的詳情」，原審法官既沒有指出王是提供甚麼文件，亦沒有指出其依賴甚麼事實基礎。" } }, { "doc_id": 57, "seg_id": 115, "translation": { "en": "49.3When Tse was being asked about his litigations in the mainland, he said he did not care if he won or lose or had any memory. The defence contended that it was unreasonable to say so, and in the absence of any evidential support, the trial judge found that Gainford was well financed and those litigations in the mainland did not involve much money, and thus Tse did not need to be over-concerned.", "zh-HK": "49.3當謝被問及其內地官司的事項時，他指自己對輸贏不聞不問或無記憶，辯方認為這說法並不合理，而原審法官卻在沒有證據支持的情況下指佳輝財政充裕，而那些內地官司涉及數額不大，謝不需要太著緊。" } }, { "doc_id": 57, "seg_id": 116, "translation": { "en": "49.4As to why the applicant had hidden the ongoing forex speculation from Tse without any benefit, the trial judge said the applicant was “unwilling to admit failure and hoped that she could win back the loss” but in fact there was never any evidence in this regard.", "zh-HK": "49.4就申請人為何會在沒有得益的情況下瞞著謝繼續炒賣外滙，原審法官指申請人「無非是不服輸心態作崇，期望收復失地」，但事實上本案從沒有這方面的證據。" } }, { "doc_id": 57, "seg_id": 117, "translation": { "en": "In our view, these challenges on Tse’s evidence are in such bits and pieces that we are not going to deal with them one by one. There is overwhelming evidence in the present case, which has never been disputed by the applicant and is sufficient to support the truthfulness of what Tse has said.", "zh-HK": "本庭認為，這些對謝證供的攻擊都是比較零碎，本庭不擬逐一處理。本庭認為，本案存在強而有力並且是申請人從不爭議的證據，足以支持謝的說法屬實。" } }, { "doc_id": 57, "seg_id": 118, "translation": { "en": "On 28 May 2010, Tse, Tse Chun Kei, Wong, the applicant and her husband, five of them, had a meeting, and Tse Chun Kei made an audio recording. According to the transcript of the audio recording, Tse said that back in late 2004, he had already told the applicant to stop speculation and also requested her to give an account for the serious loss caused to the company, and the applicant and her husband agreed to consider making compensation, which is consistent with Tse’s testimony in court. Furthermore, it would be unreasonable that the applicant did not explain or clarify in the meeting if the applicant’s version was true, and it would make no sense at all that the applicant had to help Tse continue to hide the truth when Tse criticised her for not complying with his instructions of stopping speculation in the market and requested her to give an account and compensation. The only irresistible inference is that Tse’s version is true and the applicant’s false.", "zh-HK": "2010年5月28日，謝、謝俊基、王、申請人和她的丈夫舉行五人會議，謝俊基把會議錄音。根據錄音謄本，謝曾提到2004年底已叫申請人停止抄買，他又要求申請人對公司做成的嚴重損失作出交代，而申請人及她的丈夫同意考慮作出賠償。這與謝作證時所說的吻合。再者，若申請人的說法屬實，她斷沒有理由不在會議中道明原諉，而當謝指責她沒有依其指示停止抄買，又要求她交代和賠償時，她更沒有理由要幫謝繼續隱瞞真相。唯一及無可抗拒的推論是，謝的說法是真的，申請人的說法是假的。" } }, { "doc_id": 57, "seg_id": 119, "translation": { "en": "Ground 3 fails.", "zh-HK": "理據三不成立。" } }, { "doc_id": 57, "seg_id": 120, "translation": { "en": "Ground 4", "zh-HK": "理據四" } }, { "doc_id": 57, "seg_id": 121, "translation": { "en": "Ground 4 is a consolidated ground and cannot help bringing the applicant’s case any further. In our view, the conviction of the applicant is neither unsafe nor unsatisfactory.", "zh-HK": "理據四是綜合的理由，對申請人沒有進一步的幫助。本庭認為，申請人的定罪並無不安全或不穩妥之處。" } }, { "doc_id": 57, "seg_id": 122, "translation": { "en": "Ground 4 fails.", "zh-HK": "理據四不成立。" } }, { "doc_id": 57, "seg_id": 123, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 57, "seg_id": 124, "translation": { "en": "With none of the grounds of appeal established, the application is refused.", "zh-HK": "因為上訴的理據無一成立，本庭拒絕申請人的申請。" } }, { "doc_id": 57, "seg_id": 125, "translation": { "en": "Ms Virginia Lau, Acting Senior Assistant Director of Public Prosecutions, of the Department of Justice, for the respondent", "zh-HK": "答辯人：由律政司署理高級助理刑事檢控專員劉少儀代表。" } }, { "doc_id": 57, "seg_id": 126, "translation": { "en": "Mr Robert Pang SC and Ms Alison Choy, instructed by Messrs Chan & Tsu, for the applicant", "zh-HK": "申請人：由陳崔律師事務所轉聘彭耀鴻資深大律師及蔡悅兒大律師代表。" } }, { "doc_id": 58, "seg_id": 1, "translation": { "en": "Hon Poon J (giving the Reasons for Judgment (application for leave to appeal against conviction) and Judgment (application for leave to appeal against sentence) for the Court):", "zh-HK": "高等法院原訟法庭法官潘兆初頒發上訴法庭判案理由書（定罪申請）及判案書（刑期申請）：" } }, { "doc_id": 58, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 58, "seg_id": 3, "translation": { "en": "The applicant was charged with three offences:", "zh-HK": "申請人被控三項控罪：" } }, { "doc_id": 58, "seg_id": 4, "translation": { "en": "(i)Robbery, contrary to section 10 of the Theft Ordinance, Cap 210, Laws of Hong Kong;", "zh-HK": "（一）搶劫罪，違反香港法例第210章《盜竊罪條例》第10條；" } }, { "doc_id": 58, "seg_id": 5, "translation": { "en": "(ii)Indecent Assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200, Laws of Hong Kong;", "zh-HK": "（二）猥褻侵犯罪，違反香港法例第200章《刑事罪行條例》第122(1)條；和" } }, { "doc_id": 58, "seg_id": 6, "translation": { "en": "(iii)Assault Occasioning Actual Bodily Harm, contrary to the Common Law and punishable under section 39 of the Offences Against The Person Ordinance, Cap 212, Laws of Hong Kong.", "zh-HK": "（三）襲擊他人致造成身體傷害罪，違反普通法並可根據香港法例第212章《侵害人身罪條例》第39條予以懲處。" } }, { "doc_id": 58, "seg_id": 7, "translation": { "en": "In summary, the Prosecution alleged that on the 3rd day of January, 2013, outside Buddhist Tai Kwong Chi Hong College (“College”) at Chui Yi Street, Tai Po, New Territories, Hong Kong, after robbing a girl (“X”) of a mobile phone, a wallet, cash of $160 Hong Kong currency, one Hong Kong Identity Card, one student card, one medical card, one personal octopus card and some photographs, the applicant took X to a secluded hillside nearby and assaulted her sexually and physically. X was a Form 3 student of only 14 years and 8 months old at the time of incident.", "zh-HK": "扼要說來，控方指於2013年1月3日，申請人在香港新界大埔翠怡街佛教大光慈航中學（“中學”）外，搶劫一名女童（“X”）一部流動電話、一個銀包、現金港幣160元、一張香港身份證、一張學生證、一張醫療卡、一張個人八達通卡及一些照片；之後，申請人帶X到附近一個僻靜的山坡猥褻侵犯和襲擊她。案發時X只有14歲8個月大，就讀中三。" } }, { "doc_id": 58, "seg_id": 8, "translation": { "en": "The applicant denied all the charges. He did not dispute that X had been robbed, assaulted sexually and physically but he asserted that X had misidentified him as the culprit.", "zh-HK": "申請人否認所有控罪。他不爭議X曾被搶劫、猥褻侵犯和被毆，但指X認錯了他是犯案者。" } }, { "doc_id": 58, "seg_id": 9, "translation": { "en": "The case was tried in the Court of First Instance before High Court Judge Andrew Chan (the trial Judge) and a jury.", "zh-HK": "案件在原訟法庭法官陳慶偉（原審法官）會同陪審團席前審理。" } }, { "doc_id": 58, "seg_id": 10, "translation": { "en": "On the 5th of March, 2014, the jury found the applicant guilty of all three charges. On the 8th of April, 2014, the trial Judge sentenced the applicant to an imprisonment of four years for the first offence, ten years for the second offence and two and a half years for the third offence. Three years in respect of the first offence were to run consecutively to the ten years’ imprisonment in respect of the second offence; and two years in respect of the third offence were to run consecutively to the ten years’ imprisonment in respect of the second offence, making a total of 15 years’ imprisonment.", "zh-HK": "2014年3月5日，陪審團裁定申請人三項控罪全部罪名成立。2014年4月8日，原審法官判處申請人就控罪一入獄4年、控罪二入獄10年、及控罪三入獄2年半；控罪一其中的3年監禁與控罪二的10年監禁分期執行，而控罪三的其中2年監禁與控罪二的10年監禁分期執行，總刑期為15年監禁。" } }, { "doc_id": 58, "seg_id": 11, "translation": { "en": "On the 23rd of April, 2014, the applicant filed application for leave to appeal against conviction. He was denied legal aid and acted in person for the application for leave to appeal against conviction.", "zh-HK": "2014年4月23日，申請人不服定罪，提出上訴許可申請。他不獲准法援，就定罪申請親自行事。" } }, { "doc_id": 58, "seg_id": 12, "translation": { "en": "On the 29th of July, 2014, the applicant filed application for leave to appeal out of time against sentence. Mr Y. K. Tze, James was assigned by the Legal Aid Department as counsel representing the applicant.", "zh-HK": "2014年7月29日，申請人就判刑提出逾時上訴許可申請，由法律援助署委派謝英權大律師代表。" } }, { "doc_id": 58, "seg_id": 13, "translation": { "en": "Prosecution Case", "zh-HK": "控方案情" } }, { "doc_id": 58, "seg_id": 14, "translation": { "en": "(I)The Course of the incident", "zh-HK": "（一）事發經過" } }, { "doc_id": 58, "seg_id": 15, "translation": { "en": "X’s evidence can be summarised as follows.", "zh-HK": "X的證供可撮要如下。" } }, { "doc_id": 58, "seg_id": 16, "translation": { "en": "At around 7:15 on the night in question, X was on her way alone to her paternal grandmother’s. When she was passing a secondary school, she saw a man walking in her direction. The man was wearing a red cap, a black-white-grey striped jacket, a pair of light blue jeans and white clogs. The man was the applicant. The applicant suddenly grabbed her by the neck from behind with his left arm saying that it was a robbery and he had a knife in his hand. After robbing X of the aforementioned items, the applicant kept grabbing X and took her to a gazebo by the side of a pond after walking through a park. While they were there, the applicant smoked and talked with X at the same time for as long as 20 minutes. Among other things, he said that he had a son and he only resorted to robbery because of financial difficulties. During the time, he threatened X that he would give her a cut on the neck if she shouted for help. But he also said that he could not bear to give a cut on her face and kill her. After saying that, the applicant took X to walk through an alley before eventually reaching a secluded hillside in the vicinity of Tai Ping Industrial Centre. There and then, the applicant dragged X to a staircase forcefully and ferociously. X was very scared. She resisted in vain. The applicant once demanded X to raise her head and gave him a cheerful smile. The applicant remarked that X was quite pretty and cute. He would not bear to give her a cut on the face.", "zh-HK": "案發當晚約7時15分，X獨自前往她嫲嫲的居所。她途經中學門外，迎面看見一名頭戴紅色帽、身穿黑白灰間條外套、淺藍色牛仔褲、白色木拖鞋的男子，即申請人。申請人突然從後用左手箍着她的頸項聲稱打劫，並表示他手上有刀。申請人劫去上述的物品。申請人繼續箍着X，帶她經過一個公園，繼而到達一個水池旁的涼亭。在那裏，申請人一邊抽煙一邊與X交談長達20分鐘，內容包括他育有一名兒子，因陷入財困才打劫。期間，他恐嚇X，假若她呼叫求救，他便會在她的頸上割一刀，但又說不捨得在她的面上𠝹一刀及殺死她。說罷，申請人帶X行經一條巷，輾轉到達太平工業邨附近的一個僻靜的山坡。此時，申請人猛力地和兇惡地拉扯X到一條樓梯，X感到非常驚怕，她反抗，但不成功。申請人曾叫X抬頭向他寬容地微笑。申請人讚X樣子幾漂亮和得意，不捨得在她面上𠝹一刀。" } }, { "doc_id": 58, "seg_id": 17, "translation": { "en": "The applicant then took X to a path in the hillside and ordered X to take off her clothes, socks and shoes. When X resisted, the applicant immediately hit her head once. X had no choice but to obey. She was crying while taking off her clothes. She was very scared and begged the applicant not to kill her, rape her or sexually assault her. The applicant then ordered X to squat down, spread her legs and use her finger to masturbate before him. When X refused, the applicant immediately hit her head two, three times, kicked her back and hit her shoulders. X had no choice but to obey after having been beaten up. After X had masturbated, the applicant wrapped his finger with X’s clothes and worked it in and out of X’s vagina and anus. He further molested X’s breasts over the clothes and asked X how large were her breasts.", "zh-HK": "申請人帶X走進在山坡裡的一條小路，命令X脫去衣服和鞋襪。X反抗，申請人便立即打她頭一下，X只好聽從。她一邊哭泣，一邊脫去衣服。她感到非常驚怕，哀求申請人不要殺她、強姦和非禮她。之後，申請人命令X蹲下，把雙腿張開，用手指在他面前作出自慰的動作。X拒絕，申請人隨即打了她的頭兩、三下，踢她的背脊，和打她的膊頭。X被打之後，只好就範。X做完自慰的動作後，申請人以X的衣服包住自己的手指，在X的陰部和臀部進出。接著，他隔住衣服撫摸X的胸部，又問她胸部有多大。" } }, { "doc_id": 58, "seg_id": 18, "translation": { "en": "After having sexually assaulted X, the applicant pulled her hair and banged her head against the railings in the hillside. X fell onto the ground because her head was hurting. The applicant pulled X’s hair again and banged her head against the concrete barrier and the ground. He then went on to kick X causing her to fall down into a gully nearby. X’s head was very painful. She thought of pretending to faint but the applicant said he would drown her in mud if she did not respond. So X had to get up. Shortly afterwards, the applicant allowed X to leave. X testified that the duration of her being kept in the hillside and the course of the assault lasted for 40 to 45 minutes. She was only allowed to leave after another 10 minutes. X made a complaint to her mother about the ordeal when she returned home and called the police for assistance.", "zh-HK": "在侵犯X之後，申請人手扯她的頭髮，將她的頭撞向山坡上的欄杆。X因頭痛墮地，申請人再次扯X的頭髮，把她的頭撞去石壆及地面。其後，他更腳踢X，把她踢落附近坑渠，X感到頭部非常痛楚，本想裝作暈倒，但申請人說如她不回應，便用泥土淹死她。X便起身。未幾，申請人准許X離開。X指在山坡逗留及被侵犯過程歷時40至45 分鐘，然後過多十分鐘她才可離開。X回家後告訴母親她的遭遇，並報警求助。" } }, { "doc_id": 58, "seg_id": 19, "translation": { "en": "(II)Examination findings of X’s forensic medical report", "zh-HK": "（二）X身體檢查結果" } }, { "doc_id": 58, "seg_id": 20, "translation": { "en": "Upon agreement made by both the Defence and the Prosecution, the forensic medical report of X was admitted into evidence. The particulars are as follows:", "zh-HK": "控辯雙方同意有關X身體檢查的證據，詳情如下 ：" } }, { "doc_id": 58, "seg_id": 21, "translation": { "en": "“3.At 2255 hours on 3rd January 2013, Dr Hui Yuet Yum conducted a physical examination on X in the Accident and Emergency Department of Alice Ho Miu Ling Nethersole Hospital. The findings were as follows:", "zh-HK": "“3.2013年1月3日2255時，許月吟醫生在雅麗氏何妙齡那打素醫院急症室替X進行身體檢查。檢查結果如下：－" } }, { "doc_id": 58, "seg_id": 22, "translation": { "en": "(i)X was fully conscious during the examination;", "zh-HK": "(i)檢查時X完全清醒；" } }, { "doc_id": 58, "seg_id": 23, "translation": { "en": "(ii)scalp haematoma was seen without neurological deficit;", "zh-HK": "(ii)其頭皮有血腫，沒有神經錯亂；" } }, { "doc_id": 58, "seg_id": 24, "translation": { "en": "(iii)no external wound was noted on X’s vulva and anus;", "zh-HK": "(iii)X外陰及肛門沒有發現外在傷口；" } }, { "doc_id": 58, "seg_id": 25, "translation": { "en": "(iv)CT brain scan was unremarkable;", "zh-HK": "(iv)腦部掃瞄顯示沒有異常；" } }, { "doc_id": 58, "seg_id": 26, "translation": { "en": "(v)X was admitted to the paediatric ward for further management.", "zh-HK": "(v)X被送到兒科病房接受進一步治療。" } }, { "doc_id": 58, "seg_id": 27, "translation": { "en": "4.On 4th January 2013, Dr Mak Kiu Yan conducted a physical examination on X in Alice Ho Miu Ling Nethersole Hospital. The findings were as follows:", "zh-HK": "4.2013年1月4日，麥健欣醫生在雅麗氏何妙齡那打素醫院替X進行身體檢查。檢查結果如下：－" } }, { "doc_id": 58, "seg_id": 28, "translation": { "en": "(i)multiple superficial abrasions over X’s four limbs were revealed;", "zh-HK": "(i)檢查顯示X四肢多處有表面擦傷；" } }, { "doc_id": 58, "seg_id": 29, "translation": { "en": "(ii)there were bruises, redness and swelling over both wrists of X;", "zh-HK": "(ii)X雙手手腕有瘀傷及紅腫；" } }, { "doc_id": 58, "seg_id": 30, "translation": { "en": "(iii)small right forehead and postero-lateral scalp haematomas were seen;", "zh-HK": "(iii)右額一小處及後側頭皮發現有血腫；" } }, { "doc_id": 58, "seg_id": 31, "translation": { "en": "(iv)perineal examination showed no bleeding and no obvious external injury;", "zh-HK": "(iv)會陰檢查顯示沒有出血及明顯外在傷痕；" } }, { "doc_id": 58, "seg_id": 32, "translation": { "en": "(v)pre-rectal examination was slightly tender;", "zh-HK": "(v)前直腸檢查發現有少許觸痛；" } }, { "doc_id": 58, "seg_id": 33, "translation": { "en": "(vi)respiratory, cardiovascular, abdominal and neurological examinations were normal;", "zh-HK": "(vi)呼吸、心血管、腹部及神經檢查顯示正常；" } }, { "doc_id": 58, "seg_id": 34, "translation": { "en": "(vii)blood tests including complete blood picture and clotting profile were normal;", "zh-HK": "(vii)血全圖及凝血測試的血液測試結果正常；" } }, { "doc_id": 58, "seg_id": 35, "translation": { "en": "(viii)urgent CT brain scan showed no skull fracture or intracranial bleeding;", "zh-HK": "(viii)緊急腦部掃瞄顯示頭顱沒有骨折或顱內出血；" } }, { "doc_id": 58, "seg_id": 36, "translation": { "en": "(ix)urine culture, multistix and pregnancy test were all negative;", "zh-HK": "(ix)尿培養、尿拭紙及妊娠測試結果均為陰性；" } }, { "doc_id": 58, "seg_id": 37, "translation": { "en": "(x)X-ray of the wrists showed no fracture.", "zh-HK": "(x)手腕X光顯示沒有骨折。" } }, { "doc_id": 58, "seg_id": 38, "translation": { "en": "...", "zh-HK": "…" } }, { "doc_id": 58, "seg_id": 39, "translation": { "en": "5.At 1530 hours on 4th January 2013, inside the Forensic Pathologists’ Office of Regional Police Headquarters, New Territories North, in the presence of Woman Detective Senior Police Constable 56106 and with the consent of X and X’s mother Y, Dr Mak Kwok Shing medically examined X. The medical findings were as follows:", "zh-HK": "5.2013年1月4日1530時，麥國成醫生在新界北總區警察總部法醫官辦公室內，在女偵緝高級警員56106面前，在X及X母親［ Y ］同意下替X進行身體檢查。檢查結果如下：－" } }, { "doc_id": 58, "seg_id": 40, "translation": { "en": "...", "zh-HK": "…" } }, { "doc_id": 58, "seg_id": 41, "translation": { "en": "(v)a bluish birth mark, 2 cm in diameter, on the outer part of left upper arm.", "zh-HK": "(v)左上臂外側有一個直徑2厘米、呈藍色的胎記。" } }, { "doc_id": 58, "seg_id": 42, "translation": { "en": "(vi)an area of swelling, 2.5 cm x 1.5 cm, on the right forehead with surrounding erythema.", "zh-HK": "(vi)右額腫起，大小為2.5厘米x 1.5厘米，周邊有紅疹。" } }, { "doc_id": 58, "seg_id": 43, "translation": { "en": "(vii)a purplish bruise, 1.5 cm x 1.5 cm, on the outer part of left wrist.", "zh-HK": "(vii)左腕外側有一處呈紫色的瘀傷，大小為1.5厘米x 1.5厘米。" } }, { "doc_id": 58, "seg_id": 44, "translation": { "en": "(viii)multiple parallel short linear scabbed abrasions with surrounding erythema, covering an area of 2 cm x 1 cm, on the back of the right elbow. They were covered by dressing.", "zh-HK": "(viii)右手肘背有多條短小線狀、平行、已結痂的擦傷，周邊有紅疹，所佔範圍2厘米x 1厘米，上面有敷料。" } }, { "doc_id": 58, "seg_id": 45, "translation": { "en": "(ix)multiple parallel linear abrasions with surrounding erythema, covering an area of 9 cm x 4 cm, on the inner part and back part of right upper arm. They were covered by dressing.", "zh-HK": "(ix)右上臂內側及後方有多條平行線狀的擦傷，周邊有紅疹，所佔範圍9厘米x 4厘米，上面有敷料。" } }, { "doc_id": 58, "seg_id": 46, "translation": { "en": "(x)multiple parallel oblique abrasions with surrounding erythema, covering an area of 4 cm x 2 cm, on the outer part of left forearm.", "zh-HK": "(x)左上臂外側有多條斜向、平行的擦傷，周邊有紅疹，所佔範圍4厘米x 2厘米。" } }, { "doc_id": 58, "seg_id": 47, "translation": { "en": "(xi)multiple parallel oblique abrasions with surrounding erythema, covering an area of 3 cm x 2 cm on the right loin.", "zh-HK": "(xi)右腰有多條斜向、平行的擦傷，周邊有紅疹，所佔範圍3厘米x 2厘米。" } }, { "doc_id": 58, "seg_id": 48, "translation": { "en": "(xii)multiple parallel linear abrasions with surrounding erythema on the back of right thigh.", "zh-HK": "(xii)右邊大腿後有多條平行線狀的擦傷，周邊是紅疹。" } }, { "doc_id": 58, "seg_id": 49, "translation": { "en": "(xiii)a purplish bruised abrasion, 2.5 cm x 2 cm, on the left knee.", "zh-HK": "(xiii)左膝有一個呈紫色、瘀腫的擦傷，大小為2.5厘米x 2厘米。" } }, { "doc_id": 58, "seg_id": 50, "translation": { "en": "(xiv)a small scabbed abrasion, 1 cm x 1 cm, on the right knee.", "zh-HK": "(xiv)右膝有一個細小、已結痂的擦傷，大小為1厘米x 1厘米。" } }, { "doc_id": 58, "seg_id": 51, "translation": { "en": "(xv)a small abrasion, 1 cm x 1 cm, on the outer part of right ankle.", "zh-HK": "(xv)右腳踝外側有一個細小擦傷，大小為1厘米x 1厘米。" } }, { "doc_id": 58, "seg_id": 52, "translation": { "en": "(xvi)a small purplish bruised abrasion on the knuckle of left 2nd toe.", "zh-HK": "(xvi)左腳第二隻腳指的關節有一個細小、呈紫色，瘀腫的擦傷。" } }, { "doc_id": 58, "seg_id": 53, "translation": { "en": "(xvii)private parts:", "zh-HK": "(xvii)私處：" } }, { "doc_id": 58, "seg_id": 54, "translation": { "en": "(a)no recent external injury.", "zh-HK": "a.沒有新造成的外傷。" } }, { "doc_id": 58, "seg_id": 55, "translation": { "en": "(b)hymen was of annular type with fleshy hymenal tissues as well as thin and smooth edge. No abnormality or injury found.", "zh-HK": "b.處女膜呈環形，帶有多肉的處女膜組織及細薄平滑的邊緣。沒有發現異常或損傷。" } }, { "doc_id": 58, "seg_id": 56, "translation": { "en": "(c)speculum examination was not performed.", "zh-HK": "c.沒有進行窺鏡檢查。" } }, { "doc_id": 58, "seg_id": 57, "translation": { "en": "(xviii)anus and perineal region: no injury or abnormality found.”", "zh-HK": "(xviii)肛門及會陰部位：沒有發現損傷或異常。”" } }, { "doc_id": 58, "seg_id": 58, "translation": { "en": "On 9th January 2013, the physical examination conducted on X by a gynaecologist was unremarkable.", "zh-HK": "2013年1月9日，X接受婦科醫生檢查，檢查顯示沒有異常。" } }, { "doc_id": 58, "seg_id": 59, "translation": { "en": "(III)The applicant had appeared in the vicinity of the robbery scene", "zh-HK": "（三）申請人曾在打劫現場附近出現" } }, { "doc_id": 58, "seg_id": 60, "translation": { "en": "The defence admitted that at around 5:15 pm on the 3rd of January 2013, the applicant did appear in the food court at Fu Hang Estate, Tai Po. At that time, he was wearing a black-white-grey striped top, a pair of blue jeans and a black and white cap with a red brim. The defence also admitted to the content of a video clip provided by “Mans Auto Repair Shop”（猛士專業汽車美容護理公司）. The shop was across the crime scene where X was robbed. The video clip recorded the situation outside the shop between 1900 hours and 1930 hours on the 3rd of January 2013. A man in black-white-grey striped top was seen walking past a secondary school in the video. He was the applicant.", "zh-HK": "辯方同意申請人在2013年1月3日下午5時15 分左右出現於大埔富享邨的美食廣場。當時，他身穿黑白灰色間條上衣及藍色牛仔褲，戴黑白色及帽咀為紅的帽子。另外，辯方同意一段影片，由“猛士專業汽車美容護理公司”提供。該公司位於X被劫的現塲的對面。該影片記錄2013年1月3日1900時至1930時店外的情況。影片可見有一名身穿黑白灰色間條衫的男子行經中學門外，他就是申請人。" } }, { "doc_id": 58, "seg_id": 61, "translation": { "en": "The defence further admitted that a photo was provided by the police for X’s identification on the 7th of January 2013. The photo was retrieved from the aforementioned video clip and the defence admitted that the man in the photo was the applicant.", "zh-HK": "辯方同意，2013年1月7日，警方提供一張照片給X辨認。那張照片是從上文提到的影片提取，而辯方同意照片中的男子就是申請人。" } }, { "doc_id": 58, "seg_id": 62, "translation": { "en": "(IV)The arrest of the applicant", "zh-HK": "（四）拘捕申請人" } }, { "doc_id": 58, "seg_id": 63, "translation": { "en": "At 7:10 pm on the 31st of May 2013, the police arrived at the residence of the applicant in Kwai Chung and arrested the applicant. At the time, the applicant was at home together with three women and a child. Under caution, the applicant said, “on that day I did rob her of her phone and wallet before taking her to a hill. But I had no idea of what I had done because I was short-circuited that day.” The applicant was then taken to the police station for investigation.", "zh-HK": "2013年5月31日晚上7時10分，警方到達申請人位於葵涌的住所拘捕申請人。當時，申請人和三名女士和一名小童在家。警誡下，申請人說：「我果日係有笠佢部電話同銀包，之後夾咗佢上山，做過乜我唔知，因為我嗰日跳咗掣。」申請人被帶返警署調查。" } }, { "doc_id": 58, "seg_id": 64, "translation": { "en": "(V)X recognised the applicant", "zh-HK": "（五）X認得申請人" } }, { "doc_id": 58, "seg_id": 65, "translation": { "en": "On the 4th of June 2013, X positively identified the applicant as the culprit in an identification parade conducted in Tai Po Police Station.", "zh-HK": "2013年6月4日，在大埔警署的認人手續中，X認出申請人為犯案者。" } }, { "doc_id": 58, "seg_id": 66, "translation": { "en": "Defence Case", "zh-HK": "辯方案情" } }, { "doc_id": 58, "seg_id": 67, "translation": { "en": "The applicant elected not to give evidence. His defence was that X had mistaken him for the culprit. As regards the verbal admission he made on the night of the arrest, the applicant asserted that he was drunk and did not have a clear mind at that time. He was coerced into signing his name on the police notebook. In addition, the admission made under caution was fabricated by the police officer.", "zh-HK": "申請人選擇不作供。他的辯護理由是X錯誤地認出他為犯案者。至於被補當晚的口頭招認，申請人的說法是當時因酒醉神志不清，被逼在警員記事冊上簽名；另外，警員揑造警誡下的招認。" } }, { "doc_id": 58, "seg_id": 68, "translation": { "en": "The applicant called Dr Wong Suk Kwan to testify for him. Dr Wong conducted a physical examination on the applicant on the 31st of May 2013. She testified in evidence that no superficial injuries or marks were found on the applicant. His heart, lungs, chest and abdomen were normal. His blood alcohol content was 18.7. According to normal standard, blood alcohol content between 10.9 and 21.7 would have an impact on a man’s ability to react. Dr Wong pointed out that the applicant was sober at the time. He was coherent and did not have a strong smell of alcohol.", "zh-HK": "申請人傳召黃淑筠醫生作證。黃醫生在2013年5 月31日替申請人驗傷。她作供指申請人沒有表面傷痕、心肺腹和肚檢查正常、酒精濃度為18.7。根據指標當血液酒精濃度達10.9至21.7時會影響人的反動作用。黃醫生指申請人當時清醒，對答清晰，沒有明顯酒氣。" } }, { "doc_id": 58, "seg_id": 69, "translation": { "en": "Issue", "zh-HK": "爭議" } }, { "doc_id": 58, "seg_id": 70, "translation": { "en": "In the original trial, the issue was whether the applicant was the man described by X who had robbed her, sexually and physically assaulted her.", "zh-HK": "原審時的爭議是，申請人是否就是X所描述搶劫、猥褻侵犯和襲擊她的人。" } }, { "doc_id": 58, "seg_id": 71, "translation": { "en": "Verdict", "zh-HK": "裁決" } }, { "doc_id": 58, "seg_id": 72, "translation": { "en": "The jury found the applicant guilty of the offence of robbery by 5 to 2 and they found the applicant guilty of the offence of indecent assault and the offence of assault occasioning actual bodily harm unanimously.", "zh-HK": "陪審團以5比2的比數裁定申請人搶劫罪罪名成立，又一致裁定猥褻侵犯和襲擊致他人身體傷害兩項控罪罪名成立。" } }, { "doc_id": 58, "seg_id": 73, "translation": { "en": "Reasons for Sentence", "zh-HK": "判刑理由" } }, { "doc_id": 58, "seg_id": 74, "translation": { "en": "On the 5th of March 2014, the trial Judge ordered a clinical psychological assessment report in respect of X. At the same time, he pointed out that the facts of the case were extremely vile. He intended to impose the maximum penalty, that is, ten years’ imprisonment, on the applicant and he invited the defence counsel to make submission in this regard. On the 1st of April 2014, the trial Judge heard further submission on mitigation. The defence counsel submitted that X did not require any psychological counselling treatment quoting the psychological assessment report.", "zh-HK": "2014年3月5日，原審法官下令索取由臨床心理學家為X撰寫的心理評估報告。同時，他指出本案案情非常惡劣，他有意判處申請人最高的刑罰，即10年監禁。他邀請辯方大律師就這方面作陳詞。2014年4月1日，原審法官聽取進一步的求情陳詞。辯方大律師引用心理評估報告的內容，陳述X不需接受任何心理輔導的治療。" } }, { "doc_id": 58, "seg_id": 75, "translation": { "en": "During sentencing on the 8th of April 2014, the trial Judge pointed out that the applicant was thirty six years old with fifteen criminal convictions of which one was for robbery, several for theft and four for wounding/assault. There was also one criminal conviction of attempted rape in 1996. The victim of the case was only 13 years old. The trial Judge considered that the applicant was an extremely violent and dangerous person.", "zh-HK": "2014年4月8日，原審法官在判刑時指出申請人36歲，有15次刑事定罪記錄，其中有一項搶劫罪記錄、數項盜竊罪記錄、四項傷人／襲擊定罪記錄，還有一項在1996 年企圖強姦罪記錄，該案受害人年僅13歲。原審法官認為申請人是一個極為暴力和危險的人。" } }, { "doc_id": 58, "seg_id": 76, "translation": { "en": "In respect of the offence of robbery, the trial Judge pointed out that no weapon was used in committing the crime. He therefore followed the sentencing guidelines laid down by the Court of Appeal and sentenced the applicant to four years’ imprisonment.", "zh-HK": "就搶劫罪，原審法官指出申請人沒有使用武器。故此，他跟從上訴庭的判刑指引，判處申請人入獄4年。" } }, { "doc_id": 58, "seg_id": 77, "translation": { "en": "In respect of the offence of indecent assault, he considered that the facts of the case were very serious. X was forced to perform acts that seriously hurt her dignity. What the applicant did made no difference from rape or unlawful buggery. He pointed out that the sentence must have a deterrent effect and also to show the abhorrence of members of the public to crimes of this nature and also to redress the grievance suffered by X and her family. He therefore imposed the maximum penalty of ten years’ imprisonment on the applicant for this offence.", "zh-HK": "至於猥褻侵犯罪，他認為案情非常嚴重。X被逼要做一些嚴重損害自尊的行為。申請人的所作所為與強姦或非法肛交無異。他指出判刑要具阻嚇性；又要表現出社會大眾對這類行為的厭惡；也要對X和她的家人作出補償。他判處申請人此罪行的最高刑罰，即監禁10年。" } }, { "doc_id": 58, "seg_id": 78, "translation": { "en": "Lastly, since the acts committed in the offence of assault had not caused severe permanent physical injuries to X, the trial judge therefore sentenced the applicant to two years and six months’ imprisonment. As aforementioned, he had taken into consideration the totality principle and ordered part of the sentences to be served concurrently making a total of fifteen years’ imprisonment.", "zh-HK": "最後，基於襲擊罪的行為沒有導致X受到永久嚴重身體傷害，故原審法官判申請人2年6個月監禁刑期。正如前文所述，他考慮了總刑期原則，把部份刑期同期執行，總刑期為15年。" } }, { "doc_id": 58, "seg_id": 79, "translation": { "en": "Grounds of appeal (against conviction)", "zh-HK": "上訴理由（定罪）" } }, { "doc_id": 58, "seg_id": 80, "translation": { "en": "As regards conviction, the applicant failed to set out any grounds of appeal in his notice to appeal.", "zh-HK": "就定罪方面，申請人在他的上訴通知書裡沒有列出任何上訴的理由。" } }, { "doc_id": 58, "seg_id": 81, "translation": { "en": "The Vice President of the Court of Appeal issued a written direction on the 24th of October 2014 asking the applicant to file written submission to the Court in 28 days before this hearing. But the applicant had not complied with the direction.", "zh-HK": "2014年10月24日，上訴庭副庭長發出書面指示，要求申請人在本聆訊前28天向法庭呈交書面陳詞，但是他沒有依指示行事。" } }, { "doc_id": 58, "seg_id": 82, "translation": { "en": "It was not until the 13th of February 2015 that the applicant submitted a 5-page written submission to this Court in the process of the hearing setting out eighteen grounds of appeal therein, inter alia, allegations of incompetence on the part of his defence counsel at trial and unfair handling of the case by the trial judge. When this Court asked the applicant why did he not conduct his appeal in accordance with the written direction issued by the Court earlier but rather submitted a written submission only in the process of the hearing, he was unable to give a satisfactory answer. Regardless, this Court still had to give an opportunity for the applicant to present his grounds of appeal to this Court. In that case, adjournment of the hearing would become inevitable. This Court therefore explained the situation to the applicant and gave him a warning: if his appeal is dismissed eventually by virtue of S83W of the Criminal Procedure Ordinance, the Court might direct that the time during which he is in custody pending the determination of his appeal shall not be reckoned as part of the term of any sentence to which he is for the time being subject because his action has wasted the time and resources of the Court. This Court therefore adjourned the hearing briefly for the applicant to consider thoroughly. When the Court resumed, the applicant submitted to this Court that he would abandon his application for leave to appeal against conviction. This Court then explained to him that once the application was abandoned, he would be unable to re-apply for leave to appeal against conviction. The applicant indicated that he understood.", "zh-HK": "直至2015年2月13日聆訊時，申請人才向本庭呈上一份長5頁的書面陳詞，其中列出18個上訴理由，包括原審時代表他人的大律師失職、原審法官處理案件手法不公等指控。本庭問申請人為何沒有依法庭較早時的書面指示行事，卻在聆訊時才提交書面陳詞，他未能給予令人滿意的答案。雖然如此，本庭認為仍需給予申請人機會向本庭陳述其上訴理由，但這無可避免將要把聆訊押後，本庭於是向申請人解釋情況，亦給予他忠告：若最終其上訴失敗，因他的舉措浪費法庭的時間和資源，法庭有可能根據《刑事訴訟程序外條例》第83W條，命令他在聽候對其定罪上訴作裁定時在扣押的時間，不作為他當其時所受刑罰的部分刑期計算。之後，本庭短暫押後聆訊讓申請人考慮清楚。當恢複聆訊時，申請人向本庭表示放棄其定罪上訴申請，本庭向他解釋，一經放棄，他便不能再就定罪上訴，申請人表示明白。" } }, { "doc_id": 58, "seg_id": 83, "translation": { "en": "Since the applicant abandoned the application himself, this Court refused his application for leave to appeal against conviction.", "zh-HK": "由於申請人自己放棄，本庭拒絕其上訴定罪的申請。" } }, { "doc_id": 58, "seg_id": 84, "translation": { "en": "Grounds of appeal (against sentence)", "zh-HK": "上訴理由（判刑）" } }, { "doc_id": 58, "seg_id": 85, "translation": { "en": "The applicant asked for extension of time for issuing the notice of application for leave to appeal on 29 July 2014. In other words, his application was two and a half months out-of-time. Mr Tze, counsel for the applicant, only applied for leave to appeal out-of-time against sentence in respect of the second offence. He advanced three grounds of appeal:", "zh-HK": "申請人於2014年7月29日提出延展發出申請上訴許可通知書。換言之，他的申請逾時兩個半月。謝大律師只針對控罪二提出逾時判刑的上訴許可申請。他提出三項上訴的理由：" } }, { "doc_id": 58, "seg_id": 86, "translation": { "en": "(1)it was manifestly excessive to take the maximum penalty of ten years’ imprisonment as the starting point for sentencing in respect of the second offence especially when it was pointed out in X’s impact assessment report that there were no severe symptoms indicative of traumatisation and X was able to resume normal functioning within a short period of time;", "zh-HK": "(1)控罪二以該控罪的最高刑罰，即10年監禁作為量刑起點為明顯過重，尤以X的創傷報告中指出，X並無重大後遺症，X可於短時間內回復正常生活；" } }, { "doc_id": 58, "seg_id": 87, "translation": { "en": "(2)considering the facts and circumstances of the applicant’s case, all three offences happened at the same time, the imposition of 15 years’ imprisonment was manifestly excessive taking into account the totality principle; and", "zh-HK": "(2)就申請人的個案及情況而言，三項控罪同時發生，在總量刑原則下，15年監禁為明顯過重；及" } }, { "doc_id": 58, "seg_id": 88, "translation": { "en": "(3)the overall sentence was manifestly excessive.", "zh-HK": "(3)整體而言，判刑明顯過重。" } }, { "doc_id": 58, "seg_id": 89, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 58, "seg_id": 90, "translation": { "en": "There is no sentencing tariff or guidelines for the offence of indecent assault. The facts of individual cases must be taken into account in considering the appropriate punishment.", "zh-HK": "猥褻侵犯罪沒有量刑準則或指引，須根據每件案件個別案情考慮適當刑罰。" } }, { "doc_id": 58, "seg_id": 91, "translation": { "en": "The maximum penalty for the offence of indecent assault is ten years’ imprisonment. In other words, the trial judge had imposed the maximum penalty under the law on the applicant. The maximum penalty prescribed by the law was only reserved for the worst possible example of the offence concerned (see para 17 of the judgement of The Attorney General v Dominic Cheung Kai Man, Application for Review No. 1 of 1987 (unreported) dated 2 April 1987). Therefore, the issue for discussion of this Court is whether the facts in this case are the worst possible example of the offence of indecent assault.", "zh-HK": "猥褻侵犯罪最高的刑期是監禁10年，換句話說，原審法官判處申請人的刑期是法例下最高的刑期。法例所訂下的最高刑期只是為著該罪行中情節最壞的案件類別而設：見上訴庭在The Attorney General v Dominic Cheung Kai Man，Application for Review No.1 of 1987（未經彙編），1987年4月2日的判詞第17段。因此，本庭需要處理的議題是，本案的情節是否屬於猥褻侵犯罪這種罪行中最壞的類別。" } }, { "doc_id": 58, "seg_id": 92, "translation": { "en": "One of the aggravating features in this case is that victim X was only a girl. This Court has repeatedly emphasized in similar cases that sexual assault on children is a serious offence. The Court must impose a severe punishment on the offenders based on the actual situation of the case.", "zh-HK": "本案情節其中一個嚴重之處是受害人X只是一名女童。本庭在類似的案件中再三強調，性侵犯兒童是嚴重的罪行，法庭必須根據案件實際的情況對犯案者予以嚴厲懲處。" } }, { "doc_id": 58, "seg_id": 93, "translation": { "en": "In HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 422, this Court (differently constituted) had pointed out the sentencing principles for offences of sexual assault on children as follows:", "zh-HK": "本庭（不同組成）在香港特別行政區 訴 曾昭德 [2013]1 HKLRD 422指出有關性侵犯兒童罪行量刑的原則：" } }, { "doc_id": 58, "seg_id": 94, "translation": { "en": "“8.The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent those vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.", "zh-HK": "“8.上訴法庭在多宗近期的案件中重申法庭必須保護無辜及容易信賴別人的兒童，避免這些易受傷害的人士被人性侵犯，以致身體及精神受到創傷。在涉及性侵犯兒童的案件中法庭有需要採用具阻嚇性的刑期來防止其他人士干犯這類罪行。這些具阻嚇性的刑期是表達公眾對這些罪行的厭惡及為受害者及其家人伸冤。" } }, { "doc_id": 58, "seg_id": 95, "translation": { "en": "9.The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:", "zh-HK": "9.上訴法庭指出法庭在處理性侵犯兒童罪行時就量刑所需要考慮的因素包括：" } }, { "doc_id": 58, "seg_id": 96, "translation": { "en": "(1)The age difference between the defendant and the victim;", "zh-HK": "(1)被告人與受害人的年紀差異；" } }, { "doc_id": 58, "seg_id": 97, "translation": { "en": "(2)The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;", "zh-HK": "(2)被告人與受害人的關係。被告人是否利用自己的地位干犯罪行及案件是否存在破壞信任的成份；" } }, { "doc_id": 58, "seg_id": 98, "translation": { "en": "(3)Whether the defendant had used threats or inducement to make the victim succumb;", "zh-HK": "(3)被告人有否利用恐嚇、利誘的手段來令受害人就範；" } }, { "doc_id": 58, "seg_id": 99, "translation": { "en": "(4)The number of occasions of committing the offences and the duration of the offences;", "zh-HK": "(4)犯罪的次數及時間；" } }, { "doc_id": 58, "seg_id": 100, "translation": { "en": "(5)Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;", "zh-HK": "(5)被告人有否使用不適當及不必要的暴力來令受害人受傷、不適；" } }, { "doc_id": 58, "seg_id": 101, "translation": { "en": "(6)Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;", "zh-HK": "(6)被告人在性侵犯受害人時有否採用安全措施來防止傳染性病給受害人或令受害人受孕；" } }, { "doc_id": 58, "seg_id": 102, "translation": { "en": "(7)Whether the sexual abuses have caused physical or psychological trauma to the victim;", "zh-HK": "(7)受害人是否因被性侵犯而受到肉體或精神的創傷；" } }, { "doc_id": 58, "seg_id": 103, "translation": { "en": "(8)Whether the offences have impact on the family members of the victim;", "zh-HK": "(8)有關的罪行有否影響受害人的家庭；" } }, { "doc_id": 58, "seg_id": 104, "translation": { "en": "(9)Whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take photos or videos of the offence he committed; and", "zh-HK": "(9)被告人有否同時涉及其他不當的行為，例如邀請其他人士觀看其罪行或拍攝或錄影；" } }, { "doc_id": 58, "seg_id": 105, "translation": { "en": "(10)Whether the defendant is psychologically imbalanced and paedophilic; and the likelihood of his re-offending.”", "zh-HK": "(10)被告人是否精神不正常及患有戀童癖及其重犯的機會率。”" } }, { "doc_id": 58, "seg_id": 106, "translation": { "en": "Recently, the Hon Yeung VP of the Court of Appeal in HKSAR v Tsang Chiu Yu [2012] 3 HKLRD 561 emphasised that:", "zh-HK": "最近，上訴庭副庭長楊振權在香港特別行政區 訴 曾昭宇 [2012] 3 HKLRD 561強調：" } }, { "doc_id": 58, "seg_id": 107, "translation": { "en": "“50.In our view, in considering the appropriate sentence, the interest of the society at large is a factor of paramount importance (see our observations in paragraph 23 of the judgment in HKSAR v Cheung Kwok Yip Peter [2013] (sic) 3 HKC 470).”", "zh-HK": "“50.本庭認為考慮案件的判刑時，應以社會利益為首要。（見本庭在HKSAR v Cheung Kwok Yip Peter [2013] 3 HKC 470案判案書第23段的討論。）”" } }, { "doc_id": 58, "seg_id": 108, "translation": { "en": "The interest of the society emphasized by the Hon Yeung VP refers to the Court’s duty to protect the public when imposing sentence on sexual offenders against children.", "zh-HK": "楊副庭長所強調的社會利益是指法庭在判處性侵犯兒童的罪犯時有責任保護社會大眾。" } }, { "doc_id": 58, "seg_id": 109, "translation": { "en": "In his submission, Mr Edmond Lee, Senior Public Prosecutor of the Department of Justice representing the Respondent, pointed out that there were multiple features in this case that enhances the culpability of the offender:", "zh-HK": "正如代表答辯人的高級助理刑事檢控專員李俊文陳詞時指出，本案的案情有多項加重刑責的因素：" } }, { "doc_id": 58, "seg_id": 110, "translation": { "en": "(a)At the time of incident, the applicant was 36 years of age whereas the victim was 14 odd. There was a huge age difference between the two of them. The victim was at an age incapable of protecting herself and vulnerable to any harm done to her;", "zh-HK": "(a)事發時申請人36歲，受害人14歲多，兩人年齡差距甚大，而受害人亦處於不能保護自己和容易受傷的年齡。" } }, { "doc_id": 58, "seg_id": 111, "translation": { "en": "(b)The applicant threatened to cut the victim’s neck and even kill her if she dared to leave and refused to do what she was told to do.", "zh-HK": "(b)申請人利用恐嚇手段威嚇受害人不可離開和就範，否則會用刀割她的頸甚至殺害她。" } }, { "doc_id": 58, "seg_id": 112, "translation": { "en": "(c)The whole ordeal of robbery, sexual assault and assault lasted for more than one hour. During the time, the applicant forced the victim to take off all her clothes in a very cold winter day and spread her legs to masturbate before him. Then the applicant worked his finger in and out of the victim’s vagina and anus and molested the victim’s breasts. This was a series of abhorrent violation against the victim. The applicant’s behaviour was extremely vile.", "zh-HK": "(c)整個搶劫、猥褻侵犯和襲擊的過程歷時超過一個小時，中途申請人曾強迫受害人在嚴冬下脫光所有衣服在他面前張開雙腿自慰，之後申請人用手指進出受害人的陰部及臀部，摸受害人的胸部，是一連串可佈的侵犯行為，申請人的行為極為卑劣。" } }, { "doc_id": 58, "seg_id": 113, "translation": { "en": "(d)The applicant repeatedly used inappropriate violence occasioning injuries to the victim. The victim was hit on the head for any disobedience. Even after she had been violated, the applicant still assaulted her with fists and kicks, banged her head against the concrete barrier and kicked her down into a gully for no reason. Although the victim did not suffer permanent physical injuries, she was battered and injured all over.", "zh-HK": "(d)申請人多次使用不當的暴力令受害人受傷，受害人稍不服從，便被打頭，甚至在被侵犯後亦無故地被申請人拳打腳踢，被捉着頭撞向石壆和被踢落溝渠。受害人雖然沒有永久性的身體傷害，但遍體鱗傷，飽受皮肉之苦。" } }, { "doc_id": 58, "seg_id": 114, "translation": { "en": "(e)Although the victim’s assessment report indicated that she did not suffer serious Post Traumatic Stress Disorder, it pointed out that the victim experienced intense distress in her court attendance to testify. When she was asked about the stress, the victim could not help but burst into tears. She also became emotionally unstable after she had testified in Court. The life of the victim was seriously disturbed by the assault and it created difficulties in adaptation. Besides, the fright and pain the victim had suffered in the course of the robbery and assault could be envisaged even without the expert report.", "zh-HK": "(e)雖然受害人的評估報告顯示她沒有嚴重的心理創傷後遺症，但報告亦指出受害人為需要到法庭作供而深感壓力，而且當被問及有關壓力時，受害人不能自己地痛哭，於庭上作供後亦有情緒不穏的情況出現，是次侵犯事件對受害人生活有相當大困擾而帶來適應上的困難。而受害人在遇劫和遭侵犯的過程中所受的驚嚇和痛苦，更是無需專家報告也能想像。" } }, { "doc_id": 58, "seg_id": 115, "translation": { "en": "Although this Court is of the view that the facts of this case were indeed extremely vile, they were still a little bit short of falling into the category of the worst example. This Court is concerned with the following two aspects.", "zh-HK": "本庭認為，本案的情節雖然實在十分惡劣，但還是差一點點才跌入最壞的類別之中。本庭所關注的是下面兩點。" } }, { "doc_id": 58, "seg_id": 116, "translation": { "en": "First, although the applicant was sentenced to four and a half years’ imprisonment for attempting to rape a girl of 13 years old with another two men in 1996, it should not be given too much weight in sentencing since he was only 18 years old at the time. In addition, that case happened seventeen years apart from this case. We would have considered otherwise if the applicant has more recent and more previous convictions for sexually assaulting girls, because such previous convictions indicate D’s recidivism and that previous sentences have had no deterrent effect on him. In order to protect the public, the Court must impose a more severe punishment. (See para 23 of HKSAR v Cheung Kwok Yip Peter [2010] 3 HKC 470).", "zh-HK": "第一，雖然申請人在1996年曾因和其他兩名男子企圖強姦一名13歲女童而被判入獄4年半，但在量刑時不能給予太大的比重，因為當時他只有18歲，而該案跟本案事隔亦有17年之久。若申請人有較近期或較多的性侵女童前科，則作別論，因為這樣的前科說明被告執意犯案，而從前的判刑對他亦沒有阻嚇力；為了保護社會大眾，法庭必須施予更嚴厲的懲處：見HKSAR v Cheung Kwok Yip Peter [2010] 3 HKC 470，第23段。" } }, { "doc_id": 58, "seg_id": 117, "translation": { "en": "Second, although the modus operandi of the applicant was extremely vile, it did not involve other inappropriate behaviour such as taking photos or videos of the offence he committed.", "zh-HK": "第二，雖然申請人的犯案手法十分卑劣，但沒有涉及其他不當的行為如拍攝或錄影犯案經過。" } }, { "doc_id": 58, "seg_id": 118, "translation": { "en": "This Court is of the view that the appropriate sentence is nine years instead of the maximum ten years.", "zh-HK": "本庭認為，合適的刑期是9年，而非最高刑期10 年。" } }, { "doc_id": 58, "seg_id": 119, "translation": { "en": "In order to avoid unnecessary misunderstanding, this Court must emphasise that although there are two mitigating factors in this case, namely the applicant does not have any recent similar conviction or performed other inappropriate behaviour, it does not mean that the Court cannot impose the maximum ten years’ imprisonment on defendants in other cases with similar circumstances. The sentencing all depends on the actual facts of the case. If the facts of the case are extremely vile, the Court can still impose the maximum penalty on the defendant in the absence of similar previous or other inappropriate behaviour.", "zh-HK": "為免惹起不必要的誤會，本庭需要強調，雖然在本案中，申請人沒有較近期的同類前科和沒有其他的不當行為這兩點是對他有利的因素，但這不是說，若其他案件中的被告有相同的情形，法庭便不能處以最高的10年刑期；一切都須視乎實際的案情而定。若案情的確極其惡劣，即使被告沒有同類前科或其他不當行為，法庭仍可判他最高的刑期。" } }, { "doc_id": 58, "seg_id": 120, "translation": { "en": "This Court also has to point out that although this Court is of the view that the appropriate sentence for the second offence is nine years, we are only saying that the culpability of the applicant is not as serious as to warrant the maximum penalty. His modus operandi was still extremely vile. He also does not appear to have a scintilla of remorse. This Court seriously condemns the applicant.", "zh-HK": "本庭亦需指出，本庭雖然認為控罪二的合適刑期是9年，但這只不過是說申請人的罪責不至重到招來最高的刑期而已。他的犯案手法仍屬十分卑劣，而他亦似乎毫無悔過之意，本庭對申請人予以嚴厲譴責。" } }, { "doc_id": 58, "seg_id": 121, "translation": { "en": "As regards the total term of imprisonment, Mr Tze, the counsel submitted that since all three offences were committed at the same time and the second and third offence happened in the same place, under the totality principle, fifteen years’ imprisonment is manifestly excessive.", "zh-HK": "就總刑期而言，謝大律師指三項控罪均在同一時間犯下，控罪二和三也在同一地點，因此，在總刑期原則下，15年的監禁是明顯過重。" } }, { "doc_id": 58, "seg_id": 122, "translation": { "en": "This Court does not agree with Mr Tze. This Court is of the view that trial judge’s handling of the total term of imprisonment is correct.", "zh-HK": "本庭不同意謝大律師的陳詞。本庭認為，原審法官就總刑期的處理方法正確。" } }, { "doc_id": 58, "seg_id": 123, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 58, "seg_id": 124, "translation": { "en": "For the above reasons, this Court grants the applicant’s application for leave to appeal out-of-time against sentence and treating the hearing of the application as the appeal. Appeal allowed and the sentence for the second offence is reduced to nine years making a total imprisonment of fourteen years.", "zh-HK": "基於上述理由，本庭准許申請人就刑期提出逾期上訴，視之為正式上訴，並判上訴得直，把控罪二的刑期減為9年，總刑期則減為14年。" } }, { "doc_id": 58, "seg_id": 125, "translation": { "en": "Mr Edmond Lee, SADPP of the Department of Justice for the Respondent", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員李俊文代表。" } }, { "doc_id": 58, "seg_id": 126, "translation": { "en": "Mr Y.K.Tze, James, instructed by Chan & Co., S H, assigned by Director of Legal Aid for the Applicant (appeal against sentence)", "zh-HK": "申請人（刑期申請）：由法律援助署委派陳淑雄律師行轉聘謝英權大律師代表。" } }, { "doc_id": 58, "seg_id": 127, "translation": { "en": "Applicant, acting in person (appeal against conviction)", "zh-HK": "申請人（定罪申請），親自出庭應訊" } }, { "doc_id": 59, "seg_id": 1, "translation": { "en": "Hon Derek Pang J (giving the judgment of the Court):", "zh-HK": "高等法院原訟法庭法官彭偉昌頒發上訴法庭判案理由書：" } }, { "doc_id": 59, "seg_id": 2, "translation": { "en": "This matter lies from the District Court. The applicant pleaded guilty to, and was therefore convicted on, three counts of “dealing with property known or believed to represent proceeds of an indictable offence”, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455. He was sentenced to imprisonment for a total term of 52 months and ordered to pay certain sums of money by way of compensation. He now applies for leave to appeal the sentence (confined to the terms of imprisonment).", "zh-HK": "本案源於區域法院。申請人經認罪後被裁定三項「處理已知道或相信為可公訴罪行的得益」罪成立，違反香港法例第455章《有組織及嚴重罪行條例》第25(1)及(3)條，總共被判入獄52個月，另加若干數額的賠償令。申請人不服，就判刑（單指刑期）提出上訴申請許可。" } }, { "doc_id": 59, "seg_id": 3, "translation": { "en": "The charges and the facts", "zh-HK": "控罪與案情" } }, { "doc_id": 59, "seg_id": 4, "translation": { "en": "Chronologically, the three offences took place on 5 September, 6 September and 28 October 2013. The particulars of all three offences are that the applicant “together with a person known as ‘Ah Ming’, knowing or having reasonable grounds to believe that certain property in whole or in part directly or indirectly represented the proceeds of an indictable offence, dealt with the said property”.", "zh-HK": "涉案三項控罪的案發日期依次為2013 年的9 月5 日、9 月6 日及10 月28 日，罪行詳情均指申請人「連同一‍名稱為“阿‍明”的人，知道或有合理理由相信某項財產，全部或部分、直接或間接代表從可公訴罪行的得益而仍處理該財產」。" } }, { "doc_id": 59, "seg_id": 5, "translation": { "en": "All three offences arose from phone scam. The facts are summarized as follows by Judge Sham, the trial judge:", "zh-HK": "上述三罪的源頭罪行皆為電話騙案。它們的的案情由原審法官（沈‍小‍民法官）簡述如下：" } }, { "doc_id": 59, "seg_id": 6, "translation": { "en": "Facts of Charge 1: Madam Lee (transliteration), aged 76, received a call on the day in question at her home in Ping Shek Estate, Ngau Tau Kok. The man on the phone asked her if she wanted to pay a ransom for the release of her son who was being held captive, and if she was, she would have to pay a sum of $200,000. Madam Lee asked the man if he knew the name of her son. The man replied that it was ‘Man Chai’ (transliteration) and went on to say that if the money was not paid, the limbs of ‘Man Chai’ would be chopped off. The man said her son and his business partner owed his company HK$200,000. Madam Lee said she was able to borrow $50,000. The man instructed her to pay by instalments of HK$50,000 each, and told her to take a taxi right away to Metropark Hotel Kowloon in Prince Edward to pay the money. Madam Lee took cash of $39,500 from home and went to the Hotel.", "zh-HK": "控罪一的案情：76歲的李婆婆當日在牛頭角坪石邨的單位中收到電話。電話中的男子問她是否想贖回她被扣留的兒子，如果想贖回的話就要支付$200,000。李婆婆問該男子知否她兒子的名稱。該男子回答是“民仔”，還對李婆婆說如果不付款的話，會斬掉“民仔” 的手腳。該男子說她的兒子及其生意夥伴欠下他的公司港幣$200,000。李婆婆說可以借到$50,000，該男子則吩咐她分期付款，每次港幣$50,000，並指示她立刻乘坐的士前往太子九龍維景酒店付款。李‍婆婆從家中拿了現金$39,500去該酒店。" } }, { "doc_id": 59, "seg_id": 7, "translation": { "en": "Madam Lee arrived at the Hotel after one-odd hour. 20 minutes later, [the applicant] approached her. Madam Lee asked [the applicant] if the money was to be paid over there, and he said yes. Madam Lee handed the $39,500 over to [the applicant] and at the same time asked him if he knew her son’s name. [The applicant] replied that it was ‘Man Chai’ and then left.", "zh-HK": "大約個多小時後，李婆婆去到酒店。20分鐘後，[申請人]走近她。李婆婆問[申請人]是否在該處收錢，對方回答是。李婆婆把$39,500交予[申請人]，同時問他知否知道她兒子的名字。[申請人]回答是“民仔”，然後離去。" } }, { "doc_id": 59, "seg_id": 8, "translation": { "en": "Facts of Charge 2: on the day immediately following the date of the offence in Charge 1, Mr Wong (transliteration), aged 81, received a call at his home in Choi Ying Estate, Ngau Tau Kok. The caller asked him to repay in full a debt of $200,000 that his son owed. Mr Wong told the caller that he only had HK$30,0w00 [sic]. The man on the phone asked Mr Wong for his home address. 10 minutes later, [the applicant] showed up at the door of Mr Wong and asked for $30,000. Mr Wong handed $30,000 over to [the applicant].", "zh-HK": "控罪二的案情：發生在控罪一的翌日，81 歲的王‍先生在牛頭角彩盈邨的單位收到電話，對方要求他清還其兒子的$200,000債項。王先生告知對方他只有港幣$30,0w00。電話中的男子問王先生的住址，10分鐘後[申請人]便到達王‍先生的家索取$30,000。王先生把$30,000交給[申請人]。" } }, { "doc_id": 59, "seg_id": 9, "translation": { "en": "Facts of Charge 3: Around noon on 28 October 2013, Madam Choi (transliteration), aged 80, received a call at her home in Lower Ngau Tau Kok Estate. The man on the phone cried ‘mum’ as soon as she had picked up the phone. Madam Choi responded by asking, ‘Is it Ah Tong (transliteration)?’ (‘Ah Tong’ was the name of her youngest son). The man then called himself Ah Tong and said that he was being held captive. Then another man took over the phone, told Madam Choi that her son had made his friend pregnant, and demanded a sum of HK$400,000 to resolve the matter. At the same time, Madam Choi heard the man who had called himself ‘Ah Tong’ shout ‘Don’t hit me. Mum save me!’. Madam Choi told the caller not to hit her son and said that she did not have $400,000. The caller asked her if she had $100,000. She said she had to check how much cash there was at home, and came up with $75,000 in the end.", "zh-HK": "控罪三的案情：2013 年10 月28 日中午時分，80 歲的蔡‍婆婆在牛頭角下邨的單位收到一‍個電話，電話中的男子第一‍句便叫喊“阿媽” 。蔡婆婆回答：『阿‍棠呀？』（「阿‍棠」是她最小的兒子的名字）對方便自稱是阿棠，並表示正被扣留。然後另外一‍名男子接過電話，告訴蔡婆婆她的兒子令他的朋友懷孕，要索取港幣$400,000去解決事情。蔡‍婆婆同時聽見剛才聲稱“阿棠” 的人叫喊『唔好打呀，阿媽救我呀。』蔡婆婆叫電話中的人不要打她兒子，並向對方表明她沒有$400,000。對方問她有沒有$100,000，她說要查看一下家中有多少現金，最後找到$75,000。" } }, { "doc_id": 59, "seg_id": 10, "translation": { "en": "The parties agreed to meet up and hand over the money at Ngau Tau Kok Market. Madam Choi left home with the $75,000. Using a quadripod walking aid, she walked slowly to the Market. She then took a rest at a staircase nearby. About 10 minutes later, [the applicant] approached her and said, ‘This is Ah Tong’, and then handed a mobile phone to her. Madam Choi recognized the voice of the person on the phone to be that of the person who had talked to [her] just now, but as it was noisy out there, she could not hear him clearly. [The applicant] took the $75,000 from Madam Choi, but he had in fact been followed by police all along. Since [the applicant] entered Hong Kong at 10:15 am on 28 October 2013, he had been under police surveillance all the time. The police subsequently intercepted [the applicant] and found from his person the $75,000 that he had just taken from Madam Choi.”", "zh-HK": "雙方同意在牛頭角街市會面及交錢。蔡‍婆婆拿了$75,000離家。她依賴一‍個四腳架慢慢地步行去街市，然後在附近的樓梯休息。大約10分鐘後，[申請人]走近她並對她說『阿棠呀』，然後把一‍部流動電話交給她。蔡‍婆婆認出電話中的人是剛才和講電話的人的聲音，但由於街上太過嘈吵，她聽不清楚對方說甚麽。[申請人]拿走了蔡婆婆的$75,000，但其實他一‍直被警方跟踪著。自[申請人]於2013 年10 月28 日早上10時15分進入香港後，他一‍直被警務人員監視。稍後警員把[申請人]截停，亦在他身上找到剛才拿走蔡婆婆的$75,000。」" } }, { "doc_id": 59, "seg_id": 11, "translation": { "en": "According to the Summary of Facts to which the applicant pleaded, after being arrested, he denied having taken part in defrauding people. He only admitted collecting and dealing with the sums in question:", "zh-HK": "根據供申請人答辯用的《案情撮要》顯示，申請人在被捕後否認參與騙人，他只承認收取及處理有關的款項：" } }, { "doc_id": 59, "seg_id": 12, "translation": { "en": "The police conducted a number of video-recorded interviews with [the applicant]. Under caution, he admitted that as he owed Ah Ming money, he followed his instructions to come to Hong Kong to collect money. Two days before that (that is, on Saturday), Ah Ming told him to come to Hong Kong. On 28 October 2013, Ah Ming told him to go to Ngau Tau Kok Market to meet up with an old lady dressed in grey. Upon arrival in Ngau Tau Kok, he saw PW1 outside the Market. As instructed by Ah Ming, he handed the phone to PW1. Following a brief exchange over the phone with Ah Ming, PW1 handed a black plastic bag to him. According to the agreement between him and Ah Ming, he would receive 10% of the amount collected as reward (Charge 3).", "zh-HK": "警方為[申請人]進行了多次錄影會面。在警誡下，他承認因為欠阿明金錢，於是他便按吩咐來港收錢。兩‍天前(即星期‍六)，阿明叫他到香港。在2013 年10 月28 日，阿‍明叫他去牛頭角街市與一‍名穿灰色衣服的老婦會面。他到達牛頭角後，看見控方第一證人在街市外，阿明着他把電話交給控方第一證人，他便照辦。控方第一證人與阿明交談一‍會兒後，把一‍個黑色膠袋交給他。根據他與阿明的協議，他可獲得所收款項的百分之十作為報酬 (控罪 3)" } }, { "doc_id": 59, "seg_id": 13, "translation": { "en": "As regards Charge 1, [the applicant] admitted that as he owed Ah Ming gambling debt, the latter told him to come to collect money. He therefore came to Hong Kong a few days before 5 September 2013. On the day in question, Ah Ming telephoned him and asked him to go to Metropark Hotel Kowloon to meet up with a woman and collect money from her. Upon arrival, he saw a woman dressed in red. As instructed by Ah Ming, he handed the phone to that woman. She then handed him the money. Ah Ming said it should be a sum of HK$39,500, but he did not count it. He later went to Mongkok and remitted the money to a Jiangmen account at a money changer. Having made the remittance, he sent a message to Ah Ming. He had already lost the account number. Ah Ming gave him $3,900 after he returned to Jiangmen.", "zh-HK": "有關控罪1，[申請人]承認因為欠阿明賭債，所以阿‍明叫他來收錢。他於2013 年9 月5 日之前幾天來港。案發當日，阿明致電叫他去九龍維景酒店與一‍名婦人會面，向她收錢。他到達該處，看見一‍名穿紅色衣服的婦人，他便按阿‍明指示把電話交給該婦人，該婦人然後把錢交給他。阿‍明說款項應該是港幣39,500 元，但他沒有點算。他其後前往旺角，在找換店把錢匯到中國江門一‍個帳戶，並在匯款後傳送訊息給阿明。他已遺失該帳戶號碼。他返回江門後，阿‍明給他3,900元。" } }, { "doc_id": 59, "seg_id": 14, "translation": { "en": "In respect of Charge 2, [the applicant] admitted that on 6 September 2013, Ah Ming telephoned him and asked him to go to a certain unit to collect money. He went as instructed to Ying Lok House, Choi Ying Estate. He knocked on the door of Room 915. He then handed the phone to the elderly gentleman who opened the door. The elderly gentleman handed him HK$30,000. He then went to Mongkok and remitted the money to an account the number of which he had already forgotten. He then returned to Jiangmen, and Ah Ming gave him $3,000 as agreed.", "zh-HK": "有關控罪2，[申請人]承認在2013 年9月6日，阿‍明致電叫他去某單位收錢。他依照指示前往彩盈邨盈樂樓，前往915 室敲門，然後把電話交給開門的老伯。老伯把港幣 30,000 元交給他。他接著前往旺角把現款匯款到一‍個帳戶，但己忘記該帳戶號碼。他其後返回江門，阿明按照協議給他3,000 元。" } }, { "doc_id": 59, "seg_id": 15, "translation": { "en": "He contacted Ah Ming all along using a pre-paid phone card.”", "zh-HK": "他一直是用預繳電話卡與阿明聯絡。」" } }, { "doc_id": 59, "seg_id": 16, "translation": { "en": "Background of the applicant and mitigation", "zh-HK": "申請人背景及輕判請求" } }, { "doc_id": 59, "seg_id": 17, "translation": { "en": "The applicant came from the Mainland. At the time of the conviction, he was aged 21 and had no prior conviction in Hong Kong. Before the trial judge, he was adamant that he came to Hong Kong to collect money on behalf of Ah Ming because he owed Ah Ming gambling debt of $8,000. He admitted that he had reason to believe that the three sums in question were proceeds of an indictable offence. He denied knowing that the three sums came from phone scams.", "zh-HK": "申請人來自內地，被定罪時21歲，在香港沒有前科。他在原審法官席前堅稱自己是因欠下阿明8千元賭債而替阿明到香港收錢。他承認自己有理由相信有關三筆款項是可公訴罪行的得益。他否認知道有關三筆款項來自電話騙案。" } }, { "doc_id": 59, "seg_id": 18, "translation": { "en": "Sentencing at first instance", "zh-HK": "原審量刑" } }, { "doc_id": 59, "seg_id": 19, "translation": { "en": "The applicant and the fraudster belonged to the same gang", "zh-HK": "申請人與騙徒同屬一夥" } }, { "doc_id": 59, "seg_id": 20, "translation": { "en": "The trial judge refused to accept the applicant’s contention that he knew nothing about the phone scams. The judge took the view that the applicant and the fraudster in question were in the same gang:", "zh-HK": "原審法官拒絕接受申請人對電話騙案不知情的說法。他認為申請人與有關的騙徒同屬一夥：" } }, { "doc_id": 59, "seg_id": 21, "translation": { "en": "After the defendant pleaded guilty to the charges and admitted the facts, I tried to ascertain from defence counsel the nature of the mitigation to be advanced. I learned that the defence was going to submit that [the applicant] did not know that the sums in question came from phone scams. At that time, I pointed out to defence that based on the evidence before the court, I might not accept that submission. After hearing the mitigation advanced by the defence explaining how [the applicant] committed the offences, I made it clear to defence counsel that I would not accept that the defendant had no knowledge, but I also made it clear that I was prepared to hear further evidence for consideration. In the end, defence indicated that no further evidence would be adduced. The evidence now before the court comes mainly from the facts the prosecution case — facts to which [the applicant] agreed.", "zh-HK": "在被告人承認控罪及同意案情後，本席向辯方律師了解求情方向，知道辯方的說法會是指 [申請人] 不知道那些錢是來自電話騙案。本席當時向辯方律師指出，按法庭前的證據，法庭未必會接納辯方的說法。當聽取辯方求情說話交代 [申請人] 如何犯下本案後，本席向辯方律師說明不會接納辯方不知情的說法，也同時表明願意聽取進一步的證據再作考慮。辯方最後表示不會提供進一步的證供。現在法庭前的證據主要都是來自控方的案情 – [申請人] 同意的案情。" } }, { "doc_id": 59, "seg_id": 22, "translation": { "en": "Generally speaking, as far as offences involving ‘money laundering’ in phone scams are concerned, the culprit usually instructs the victim to leave the money at a certain place. The offender (defendant) will then go to that place to pick up the money. There is in fact not much contact between the two of them. In such a case, if the defendant’s explanation is that ‘I only followed others’ instructions to pick up the money at a certain place, and I knew nothing about whether the money came from phone scam or other circumstances’, I am prepared to accept that he had no knowledge.", "zh-HK": "一般處理電話欺案涉及『洗黑錢』的罪行而言，匪徒通常指示受害人把錢擺放在某一個地方，然後由犯事者（被告人）去該處拿取款項，兩者之間其實沒有甚麼接觸。如果在這情況下被告人解說『我純粹聽從他人指令到某某地方拿取金錢，對於錢的來源是否來自電話騙案或其他情況則不得而知』，本席可以接納他是不知情。" } }, { "doc_id": 59, "seg_id": 23, "translation": { "en": "The circumstances of the present case are, however, different. There is no dispute that the background to it is phone scam. The question is whether or not [the applicant] knew that the sums of money came from phone scams. In the present case, [the applicant] not only showed up to collect the sums of money and hence had direct contacts with the victims, he had actually spoken with them. As far as the facts of Charge 1 are concerned, it was falsely represented over the phone that Madam Lee’s son was being held captive and a ransom of $200,000 was needed to secure his release. And over the phone, Madam Lee asked the caller for the name of her son and the caller answered that it was ‘Man Chai’. When [the applicant] had contact with Madam Lee, she also asked the defendant if he knew the name of her son, and [the applicant] replied that it was ‘Man Chai’.", "zh-HK": "但本案的情況不同。沒有爭議的是本案的背景是電話騙案，問題是[申請人]是否知悉那些金錢是來自電話騙案呢？本案中[申請人] 除了因為出現去收錢而與受害人有直接接觸外，其實他們之間還有對話。就控罪一的案情而言，行騙電話中訛稱的事情是李婆婆的兒子被扣留，要以$200,000去贖回。而李婆婆在電話中曾問過對方她兒子的名字，對方回答是“民仔”。當[申請人] 和李婆婆接觸時，李‍婆婆也曾問過被告人知否她兒子的名字， [申請人] 回答是“民仔”。" } }, { "doc_id": 59, "seg_id": 24, "translation": { "en": "The facts of Charge 2 do not reveal such a situation. As for the facts of Charge 3, it is beyond doubt that after the call was made to Madam Choi, someone cried ‘mum!’ on the phone, and Madam Choi answered, ‘Is it Ah Tong? Is it Ah Tong?’ (Ah Tong was her youngest son). The culprit then immediately called himself ‘Ah Tong’. When [the applicant] approached Madam Choi to take the money, the words he said to her were also ‘Ah Tong’.", "zh-HK": "第二項控罪的案情沒有顯示有這種情況。第三控罪的案情而言，毫無疑問致電蔡婆婆的人來電時有人在電話中呼喊“阿媽”後，蔡婆婆便回答『阿棠呀，阿棠呀。』（阿‍棠就是她最小的兒子），而這個賊人隨即自稱是“阿棠”。當[申請人] 去接觸蔡婆婆拿錢時，他對她說的那句說話也是『阿‍棠』。" } }, { "doc_id": 59, "seg_id": 25, "translation": { "en": "Therefore, the present case is not simply a case of the defendant showing up to take the money, but rather a case of him showing up prepared, knowing full well the exchanges made over the phone earlier. Judging by the facts of Charge 1, Madam Lee had asked the caller on the phone if he knew the name of her son and he was able to give the answer, as a result of which she believed that her son was being held captive. The facts disclose that when [the applicant] approached Madam Lee, she asked him the name of her son and he was able to say that it was ‘Man Chai’. There is no doubt that [the applicant] was aware of the content of the phone conversation, and also knew that when he approached the victim he might be asked about the information exchanged over the phone. He must have had full knowledge of such information, otherwise he would not have been able to answer the questions.", "zh-HK": "所以就本案而言，並非單單是被告人出現去拿錢這樣簡單，他是有備而來，是清楚了解較早前那通電話的對話內容。觀乎第一控罪的案情，李婆婆曾在通電話時已經問過對方是否知道她兒子的名字，而對方能回答，所以令她相信兒子是被人扣留了。案情透露[申請人] 接觸李婆婆的時候，李‍婆婆也問過他她兒子的名字，而他也能回答是“民仔”。毫無疑問[申請人]是知道這些電話對話內容，也知道他去接觸受害人時可能會被問及電話對話中的資料。他是對上述資料是一清二楚，否則他不可能回答得到。" } }, { "doc_id": 59, "seg_id": 26, "translation": { "en": "It may be counter-argued that ‘Ah Ming’ might indeed have only asked [the applicant] to go to take the money and might have only instructed him that ‘if the other party asks you, tell her that her son’s name is Ah Man’. However, such a possibility does not, in my view, withstand close scrutiny. It is because when either ‘Ah Ming’ or the phone fraudster gave instructions to [the applicant], there was no need at all to withhold such information from [the applicant] to prevent him from knowing the content of the exchanges made over the phone. On the contrary, putting him in the picture would make it easier for him to get the money without being tripped up by questions from the other party. Therefore, from this perspective, this gang of criminals had no reason whatsoever not to let [the applicant] know the aforesaid information, particularly when they knew that the other party would ask questions. Therefore, he must have had a clear knowledge of the content of the exchanges made over the phone.", "zh-HK": "雖然可以反駁指“阿明”可能真的只是叫 [申請人] 去拿錢，也可能只是指示他『如果對方問你，你就話佢個仔叫阿‍民』。若然再深入去分析，本席認為這個可能性並不存在。因為“阿明”或那個電話騙徒指示 [申請人] 時完全沒有必要去隱瞞這些資料，不讓 [申請人] 知道電話對話內容，知道內容反會讓他更容易拿到錢而不會被對方問的問題難倒。所以，從這個角度去看，這伙犯罪份子是完全沒有理由不讓[申請人]知道上述資料，特別是當知道對方會問一些問題的時候，所以他是清楚知道電話對話的內容。" } }, { "doc_id": 59, "seg_id": 27, "translation": { "en": "Judging by the account [the applicant] gave the police, the response he gave regarding the three contacts he had with the victims was the same, namely that he handed the phone to the victims as ‘Ah Ming’ had instructed. In respect of Charge 1, his response was that he handed the phone to the woman as Ah Ming had instructed and then she gave him the money. In respect of Charge 2, his response was he went to the target unit, knocked on the door and handed the phone to the elderly gentleman who opened the door, who then handed him $30,000. In respect of Charge 3, his response was he handed a mobile phone to Madam Choi. According to [the applicant], he handed the phone to the other party as had been instructed by ‘Ah Ming’. Clearly, the person on the phone wanted to speak to the victim. And according to the account [the applicant] gave, ‘Ah Ming’ was someone who had knowledge of this phone scam. The charges also alleged that he dealt with this ‘black’ money with this ‘Ah Ming’. The ‘Ah Ming’ who was on the phone had knowledge of the matter, and [the applicant] also handed the phone to the victim. Putting all these together, the only conclusion that the court can reach was that [the applicant] was a member of this gang of culprits who knew fully and clearly that the victims were to be contacted by phone, falsely told that their family members had been held captive, and required to pay ransom money for their release. [The applicant] was a member of this gang responsible for turning up to collect those sums of money. These are findings of fact which I make in the present case.", "zh-HK": "觀乎 [申請人] 向警方所作的交代，他對三次與受害人接觸的回應都是指按“阿明”的指示把電話交給受害人。他就控罪一的回應是按阿明的指示把電話交給該婦人，然後該婦人就把錢交給他；就控罪二的回應是他前往目標單位敲門，然後把電話交給開門的老伯，然後老伯就把港幣 $30,000交給他；就控罪三的回應是他把一部流動電話交給蔡婆婆。根據 [申請人] 所講他是按“阿明”的指示把電話交給對方，很明顯電話中人要和受害人對話。而根據[申請人]所講，“阿‍明”就是這電話騙案的知情者，控罪也指他連同這位“阿‍明“去處理這些黑錢。電話中的“阿明”是知情者， [申請人] 也把電話交給受害人聽–把所有的事情加起來，法庭達至的唯一結論就是 [申請人] 是這一伙賊人的一份子，他完全是清楚知道以電話去找受害人，訛稱扣留了他們的家人，要求他們拿錢去贖回。而[申請人]是這伙人的一份子，他負責出面去拿取那些金錢，這就是本席在本案中就事實的裁決。" } }, { "doc_id": 59, "seg_id": 28, "translation": { "en": "For Charge 2, although there is no evidence that [the applicant] had said the words uttered over the phone, I also draw the inference that he had knowledge. It is because I have already drawn the inference in respect of Charge 1 that he and ‘Ah Ming’ and perhaps others defrauded Madam Lee by means of this kind of phone call. And when he was in Hong Kong, he took money from 81-year-old Mr Wong on the following day by the same means. Therefore, it can logically be inferred that he was a member of that gang. After committing an offence on the first day, he re-offended the following day. The third offence that followed was the same.”", "zh-HK": "雖然第二項控罪沒有證供顯示 [申請人] 曾說過電話中的內容，但本席同樣推斷他是知情的。因為本席在第‍一項控罪已經推斷他和“阿明”或者還有其他人以這種電話方式去欺騙李婆婆，而他身在香港時候，第二天就以同樣方式向81 歲的王先生拿錢，所以邏輯推斷他根本就是那伙人的一‍份子。第一天犯完案，第二天再犯，接著第三宗控罪都是一‍樣。」" } }, { "doc_id": 59, "seg_id": 29, "translation": { "en": "Appropriate starting point", "zh-HK": "適當的量刑基準" } }, { "doc_id": 59, "seg_id": 30, "translation": { "en": "In view of the above findings, the trial judge considered that the starting point for each offence should be 4 years:", "zh-HK": "基於上述的裁決，原審法官認為每罪的量刑起點應為4 年：" } }, { "doc_id": 59, "seg_id": 31, "translation": { "en": "Defence counsel has referred the court to a number of decided cases, of which two are worthy of note: Hung Yung Chun (CACC 453/2009) and Wu Jian Bing (CACC 32/2011). Simply put, both are phone scam cases. In Hung Yung Chun, the defendant was charged with, and pleaded guilty to, conspiracy to defraud. The trial judge adopted 3 years’ imprisonment as the starting point and enhanced it by 50% pursuant to the Organized and Serious Crimes Ordinance. On appeal, the Court of Appeal considered that this kind of offence was even more serious then street deception cases and that the starting point should be 4 years, but an enhancement by one-third was considered sufficient.", "zh-HK": "辯方律師呈遞了多宗案例給法庭參考，值得留意的兩‍宗案例是洪‍永‍俊（CACC 453/2009）及吳‍建‍兵（CACC 32/2011）。簡單而言，這兩宗案例都是電話騙案。洪‍永‍俊一案，有關的被告人被控以串謀詐騙並承認控罪。原審法官以3 年監禁作為基準，再根據《有組織及嚴重罪行條例》加刑50%。上訴後，上訴庭認為這類罪行比街頭騙案更嚴重，量刑起點應為4 年監禁，但認為三份一的加幅已經足夠。" } }, { "doc_id": 59, "seg_id": 32, "translation": { "en": "After Hung Yung Chun, the defendant in Wu Jian Bing was charged with ‘money laundering’. The trial judge adopted 4 years’ imprisonment as the starting point and enhanced it by one-third, and the total term was 42 months. On appeal, the Court of Appeal considered that in the circumstances the starting point should be 3 years and enhanced it by one-third (adding 8 months to it), and the total term for the offence was 32 months.", "zh-HK": "洪永俊一案後，吳建兵一案的上訴人被控『洗黑錢』的控罪，原審法官以4 年監禁作為量刑起點，另外再加刑三‍份一，共42個月監禁。上訴時，上訴庭認為這個情況應該以3 年監禁作為量刑起點，再加刑三份一（加8 個月），控罪的刑期共32個月監禁。" } }, { "doc_id": 59, "seg_id": 33, "translation": { "en": "In Wu Jian Bing, it appears that the court did not think that the appellant had knowledge of the phone scam or was a member of the gang of phone fraudsters. Therefore, the situation in Wu Jian Bing was that the appellant had reason to believe that the money he was dealing with was from an indictable offence, but he had no knowledge of the phone scam.", "zh-HK": "就吳建兵一案的案例來看，似乎法庭並不認為上訴人對電話騙案是知情或他是那伙電話騙案騙徒的其中一‍份子，所以吳建兵一案的情況是該上訴人有理由相信他所處理的錢是來自可公訴罪行，但對於電話騙案則並不知情。" } }, { "doc_id": 59, "seg_id": 34, "translation": { "en": "[The applicant] in the present case is also charged with ‘money laundering’ but in view of the findings of fact I made earlier, he was a member of this gang of phone fraudsters. Although he is not charged with conspiracy to defraud, in fact the circumstances were basically identical to those in Hung Yung Chun. Therefore, I rely on the sentencing of Hung Yung Chun in considering the present case.”", "zh-HK": "本案 [申請人] 都是被控以『洗黑錢』的罪行，但基於本席剛才所作的事實裁定，他就是這伙電話騙徒的一‍份子。雖然他沒有被控串謀詐騙，但實際的情況基本上與洪‍永‍俊一‍案的案情一模一樣，因此本席倚賴洪永俊一案的量刑情況來考慮本案。」" } }, { "doc_id": 59, "seg_id": 35, "translation": { "en": "Enhancement of sentence pursuant to the Ordinance", "zh-HK": "根據條例加刑" } }, { "doc_id": 59, "seg_id": 36, "translation": { "en": "Furthermore, the trial judge considered that the sentence in the present case should be enhanced pursuant to the Organized and Serious Crimes Ordinance, the extent of such enhancement being one-third (10 months) of the starting point (4 years) as reduced on account of the guilty plea (32 months). As a result, the term of imprisonment for each count should be 42 months. The trial judge reasoned as follows:", "zh-HK": "此外，原審法官認為本案應根據《有組織及嚴重罪行條例》加刑，加幅是量刑基準（4 年）經認罪扣減後（32 個月）的三‍分‍一（10 個月）。因此，每罪的刑期應為42 個月。以下是他的理由：" } }, { "doc_id": 59, "seg_id": 37, "translation": { "en": "Pursuant to section 27 C and D [sic, for section 27(2)(c) and (d)] (the harm caused to the community and the prevalence of the offence) of the Organized and Serious Crimes Ordinance, the prosecution also applies for an enhancement of sentence in the present case. The prosecution has submitted a report prepared by Chief Inspector Lam (transliteration) which sets out the statistics and circumstances of this kind of phone scam cases in recent years. Paragraph 22 of the report sets out the annual statistics from 2007 to 2013 and also statistics from January to February 2014.", "zh-HK": "控方也根據《有組織及嚴重罪行條例》第27條C及D兩‍項（造成社會傷害和罪行的普遍性）就本案申請加刑。控方呈交了一份林總督察的報告，報告交待了這一類電話行騙案在近幾年的統計數字和情況。報告第22段列出由2007 年到2013 年整年的統計數字及2014 年1 月至2 月的統計數字。" } }, { "doc_id": 59, "seg_id": 38, "translation": { "en": "As far as the amount of loss was concerned, the total amount of reported loss in 2007 as a result of successful phone scam cases exceeded 20 million dollars. The amount jumped to more than 23 million dollars in 2008 and to more than 29 million dollars in 2009. It went down to around 25 million dollars in 2010 and dropped further in 2011 to around 22 million dollars before leaping to more than 33 million dollars in 2012 and then rising to almost 40 million dollars in 2013.", "zh-HK": "損失金額方面，在2007 年成功電話行騙的報告的損失金額總數是2千多萬元；2008 年跳升至2千3 百多萬元；2009 年是2千9百多萬元；2010 年回落至2千5 百多萬元；2011 年再跌至2千2百多萬元；2012 年又跳升至3 千3 百多萬元；2013 年更上升至差不多4千萬元。" } }, { "doc_id": 59, "seg_id": 39, "translation": { "en": "At the hearing, the prosecution sought to adjourn the matter for 3 weeks in order to allow the prosecution to include more figures in the report for the court’s reference. The prosecution intended to set out the number of instances in these phone scam cases where the offenders were charged with ‘money laundering’ offences. Having inquired into the situation, in the end I refused the application for adjournment. I was of the view that the further information sought to be provided could not in fact directly assist the court in considering whether or not to enhance the sentence, because the prosecution was basically asking the court to consider the first report on cases of reported phone scams and the second report on cases of successful phone scams.", "zh-HK": "聆訊時，控方曾經要求法庭把案件押後3星期，以便控方在報告上列舉多一些數字給法庭參考。控方想列出這些電話騙案中有多少涉及以『洗黑錢』的罪行檢控有關犯事者。本席了解過情況後，最終不批准押後申請。本席認為他們想提供的進一步資料其實並不能直接協助法庭考慮是否加刑，因為控方基本上都是要求法庭考慮第一項接獲電話行騙報告的情況和第二項接獲電話行騙成功報告的情況。" } }, { "doc_id": 59, "seg_id": 40, "translation": { "en": "In my view, these figures alone are sufficient to assist the court in considering whether or not an enhancement is called for in the present case. It is my view that this type of phone scams takes only one form: the perpetrators contact the victim by phone, falsely claiming over the phone that a family member of the victim has been held captive for a certain reason and demanding payment of money by the victim for the release of the family member. Therefore, this type of offence involves, firstly, a gang of people who conspire to defraud, and then contacts are made with victims by phone, and, with the abovementioned lies, the victims are led to believe that the culprits have held their family members captive. If the victims believe the story, they will hand over money. Therefore, whatever the charge preferred against the perpetrators is, whether it is ‘money laundering’ or conspiracy to defraud, it does not affect in any way the modus operandi of this kind of phone scams.", "zh-HK": "就這些數字而言，本席認為已經足夠讓法庭考慮本案是否需要加刑。本席認為這類電話騙案只有一種模式，就是犯事者利用電話去接觸受害人，在電話中訛稱受害人的家人被扣留，再訛稱他們是因為某事故被拘留，進而要求受害人交出金錢令他們的家人獲釋。所以，這類罪行其實是先有一伙人串謀去詐騙，然後利用電話接觸受害人，以前文提過的謊言令對方相信匪徒扣留了他們的家人。如果受害人信以為真的話，他們就會交出金錢，所以其模式是不會因為被控以何種控罪，無論是『洗黑錢』或是串謀詐騙，完全不會改變這種電話騙案的犯事模式。" } }, { "doc_id": 59, "seg_id": 41, "translation": { "en": "Defence counsel has also submitted that, according to the decided cases referred to, the power to enhance the sentence is not arbitrary, and the court is not bound to enhance the sentence in each and every case. Judging from the report prepared by Chief Inspector Lam, there has clearly been a huge jump in the number of such cases over the last two years. In 2007 and 2008, the average number of reported cases of receipt of scam phone calls was 1,500; by contrast, the number of such cases had risen above 2,000 by 2012 and 2013. Turning to the statistics for reported cases of successful phone scams, the numbers of such cases over the last two years exceeded 700 cases; whereas the figures in 2007 and 2008 were, respectively, over 500 and almost 500 (over 480). Compared with the situation a few years ago, these offences have been on the rise recently and the numbers thereof are by no means negligible.", "zh-HK": "辯方律師也提及根據已呈遞的案例顯示行使加刑的權力並非隨意，不是每宗案件都一定要加刑。觀乎林‍總督察的報告，很明顯近兩年的案件數字跳升很多。相比2007 年或2008 年的接獲電話行騙報告數字，2007至2008是平均1500宗，但2012和2013已經超過2000宗。再看一看電話行騙案成功報告的統計，同樣近兩年的數字都超過700宗；2007和2008是5百多宗及接近500宗（四百八十多宗）。相比幾年前，近來這些罪行都增加了，而且數字也不少。" } }, { "doc_id": 59, "seg_id": 42, "translation": { "en": "Having considered the decided cases and Inspector Lam’s report, I am of the view that these offences are prevalent, have been on the rise in recent years, and have caused considerable harm to the community. Judging by the number of reported cases of scam phone calls as set out in Inspector Lam’s report, it is clear that culprits have not stopped using this method to continue to practice deception. The numbers of reported cases of successful phone scams show that there are still people in the community who will fall prey to the fraud and lose money as a result. In my view, the rising numbers show that [the fraud] has caused considerable harm to the community. By reference to the above decided cases, I allow the prosecution’s application for enhancement and enhance the sentence by one-third.", "zh-HK": "考慮過有關案例和林督察的報告，本席認為這些罪行有普遍性，近年也有所上升，而且對社會造成了一定的傷害。就林督察報告而言，接獲電話行騙報告的數字，很明顯賊人沒有放棄用這樣的方法去繼續行騙；接獲電話行騙成功報告的數字顯示社會上是還有些人會受欺騙而損失金錢。本席認為數字上升顯示了對社會構成一定的傷害。參考上述的案例，本席批准控方的加刑申請–加刑三份一。" } }, { "doc_id": 59, "seg_id": 43, "translation": { "en": "For each count, I adopt a starting point of 4 years. There are no other powerful mitigating factors apart from his guilty plea. Giving one-third discount for the guilty plea, the total term is 32 months. Enhancing it by one-third (10 months), the final sentence for each count is 42 months’ imprisonment.”", "zh-HK": "每項控罪都以4 年作為量刑起點，求情方面除了他的認罪外，沒有其他有力的求情因素。認罪扣減三份一，共32 個月，再加刑三份一（加10個月），每項控罪最終被判監禁42個月。」" } }, { "doc_id": 59, "seg_id": 44, "translation": { "en": "Total term of imprisonment", "zh-HK": "總刑期" } }, { "doc_id": 59, "seg_id": 45, "translation": { "en": "Finally, the trial judge considered that the total term of imprisonment in the present case should be 52 months. This already included the discount to which the applicant was entitled by reason of his having, in respect of Charge 1, voluntarily confessed to facts which were otherwise undetectable. The judge had this to say:", "zh-HK": "最後，原審法官認為本案的總刑期應為52個月。這個刑期已包括控罪（1）非由申請人自行招認不可偵破的事實而應得的扣減。法官是這樣說的：" } }, { "doc_id": 59, "seg_id": 46, "translation": { "en": "As regards the total sentence, defence counsel has sought a further reduction of the sentences for Charges 1 and 2 for the reason that prosecution on those charges was made possible by confessions made by the defendant upon arrest. In respect of Charge 2, the evidence shows that when he entered the building in which Mr Wong resided, his features were captured by the CCTV in the lift. I asked the defence whether the image clearly showed the defendant’s features, and the defence indicated that it did. Although the defence claimed that Mr Wong was not able to recognize the person who visited his premises and took the money on the day in question, the evidence regarding the defendant’s identity did not, in my view, necessarily have to be given by Mr Wong because the CCTV had recorded the defendant’s features. Wearing the hat of a juror, I could also look at this evidence and decide if that person was the defendant. Besides, from the temporal evidence, it could be inferred that it was the defendant who visited Mr Wong and took the money. Therefore, it is not the case that prosecution was made possible only by the defendant’s confession. However, in respect of Charge 1, I do accept that prosecution would not have been possible but for the defendant’s confession. I shall make allowance for this fact in sentencing.", "zh-HK": "總刑期方面，辯方律師要求法庭就第一和第二項控罪再作減刑，原因是基於被告人被拘捕後招認才會出現第一和第二項控罪的檢控。第二項控罪的證供顯示被告人進入王‍先生大廈時，他的容貌被電梯的閉路電視攝錄下來。本席向辯方了解過該影像是否可以清楚看到被告人的容貌，辯方表示可以。雖然辯方指王老伯是認不到當日上他門拿錢的人，但本席認為閉路電視拍下被告人的容貌，這些有關被告人身份的證據不一定要由黃老伯說出。本席作為陪審員也可以看這些證據，決定究竟那人是否被告人。再者，如果根據時間方面的推斷，是可以推斷到被告人去找王先生拿錢，所以並非只靠被告人的招認才成功檢控。不過，本席接納第一項控罪只是基於被告人的招認才可以成功檢控這項罪行，本席會在量刑方面反映這點。" } }, { "doc_id": 59, "seg_id": 47, "translation": { "en": "I imposed on the defendant, who committed three similar offences on his visit to Hong Kong, a total sentence as follows: the term of 42 months for Charge 3 is to be served consecutively to 6 months of the term for Charge 2 and 4 months of the term for Charge 1, and the remaining sentences are to be served concurrently, making a total term of 52 months.", "zh-HK": "就被告人到香港犯下三宗同類的罪行，總刑期方面頒令如下：第三項控罪的42個月與第二項控罪的6個月，再與第一項控罪的4個月作分期執行，餘下的作同期執行，總共判監52個月。" } }, { "doc_id": 59, "seg_id": 48, "translation": { "en": "I was at first minded to order that 6 months each of the terms for Charges 2 and 1 were to be served consecutively to the term for Charge 3, but in view of the fact that Charge 1 was derived from the defendant’s confession, 4 months instead of 6 months of the term for that Charge will be made consecutive so as to reflect this fact.”", "zh-HK": "本席原本打算把第三項控罪的刑期與第二和第一項控罪每項控罪中的6個月作分期執行，但考慮到第一控罪是基於被告人的招認而引申出來，所以不以6個月作分期執行，會以4個月作分期執行以反映這個情況。」" } }, { "doc_id": 59, "seg_id": 49, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 59, "seg_id": 50, "translation": { "en": "The grounds of appeal put forward by Counsel for the applicant can be distilled into two major grounds.", "zh-HK": "經梳理後，申請人代表大律師提出的具體上訴理由可分為兩項。" } }, { "doc_id": 59, "seg_id": 51, "translation": { "en": "The first ground is that the term of 42 months imposed for each charge is manifestly excessive because:", "zh-HK": "第一項理由指每罪42個月的刑期明顯過重，原因是：" } }, { "doc_id": 59, "seg_id": 52, "translation": { "en": "the trial judge erred in finding that the applicant was a fellow gang member of the culprits with whom he acted in concert in committing the three “phone scam” offences. It is argued that this conclusion is inconsistent with the evidence adduced.", "zh-HK": "原審法官錯誤裁定申請人與三宗電話騙案的騙徒同屬一‍夥，共同犯案。這個結論據稱與現有的證據相悖。" } }, { "doc_id": 59, "seg_id": 53, "translation": { "en": "the trial judge erred in referring to the statistical report compiled by the police in respect of phone scam cases. Counsel argues that, as the offence in question is “dealing with property known or believed to represent proceeds of an indictable offence” and not “fraud”, the figures in the report do not have any referential value.", "zh-HK": "原審法官錯誤引用警方就電話騙案而製作的統計報告。由於本案涉及的罪行是「處理可公訴罪行的得益」而非「詐騙」，大律師認為報告中的數字根本沒有參考價值。" } }, { "doc_id": 59, "seg_id": 54, "translation": { "en": "the trial judge erred in not reducing the sentences for Charges 1 and 2. Counsel submits that the sentences as they stand do not fully reflect the fact that the offences could not have been detected but for the confession voluntarily made by the applicant.", "zh-HK": "原審法官錯誤地沒有把控罪（1）和控罪（2）的刑期下調。大律師認為，現有刑期未能充分反映出此兩罪非因申請人自行招認便不會偵破的事實。" } }, { "doc_id": 59, "seg_id": 55, "translation": { "en": "The second ground is that the total term of 52 months is manifestly excessive because:", "zh-HK": "第二項理由指52個月的總刑期明顯過重，原因是：" } }, { "doc_id": 59, "seg_id": 56, "translation": { "en": "the total loss flowing from the three offences is merely HK$68,022.", "zh-HK": "三案合計的損失只約港幣68,022元。" } }, { "doc_id": 59, "seg_id": 57, "translation": { "en": "taking a reverse calculation, the term of 52 months represents a total starting point of as high as 78 months.", "zh-HK": "由52個月逆向計算，總量刑基準會高達78個月。" } }, { "doc_id": 59, "seg_id": 58, "translation": { "en": "viewed as a whole, this sentence goes against the totality principle.", "zh-HK": "整體而言，這個刑期有違數罪併罰不能過重的原則。" } }, { "doc_id": 59, "seg_id": 59, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 59, "seg_id": 60, "translation": { "en": "In sentencing, the trial judge relied mainly on the case of HKSAR v Hung Yung Chun [2011] 2 HKLRD 167 . The two defendants in that case also played the role of money collectors, but they were charged with “conspiracy to defraud” and not “dealing with property known or believed to represent proceeds of an indictable offence”. In this regard, the Court of Appeal had said that phone scam cases (that is, the fraudulent acts that the two defendants in that case had participated in) were more serious than general street deception cases in that phone fraudsters often terrified victims by uttering excuses such as family members of the victims being held captive. It was therefore necessary to adopt a higher starting point for phone scam cases. On the facts of that case, the starting point should be 4 years. Besides, due to the sharp rise in the number of similar cases, the sentence was enhanced by one-third pursuant to the Organized and Serious Crimes Ordinance. As for the two defendants’ assertion that they were merely responsible for taking the money and had no knowledge whatsoever of the underlying phone scams, the Court of Appeal also pointed out that such assertion was not consistent with their pleas of guilty to the charge of “conspiracy to defraud”. However, what is noteworthy is another observation made by the Court of Appeal which does shed light on the sentencing approach to be adopted in the present case:", "zh-HK": "原審法官賴以科刑的主要案例是香港特別行政區訴洪‍永‍俊 [2011] 2 HKLRD 167。該案兩名被告的角色仍然是收錢，但面對的卻是「串謀詐騙」而非「處理可公訴罪行的得益」罪。就此，上訴法庭表示，電話騙案（即涉案兩名被告有份參與的詐騙行為），常以受害人家人已遭禁錮等藉口令受害人受驚，所以比一般的街頭騙案嚴重，須採納更高的量刑基準，以該案的案情而言則應為4 年，另因同類案件飆升而按《有組織及嚴重罪行條例》加刑三分之一。至於涉案兩‍名被告聲稱自己只負責取錢，對之前的電話行騙毫不知情，上訴法庭亦指出，這個說法與他們承認「串謀詐騙」的答辯不符。然而，要注意的是，上訴法庭的另一觀察，它對本案應如何判刑不無參考價值：" } }, { "doc_id": 59, "seg_id": 61, "translation": { "en": "the so-called ‘money laundering’, in general, refers to cases where the prosecution preferred the charge of ‘dealing with property known or believed to represent proceeds of an indictable offence’ against the defendants mainly because they may not be able to prove beyond reasonable doubt their direct involvement in a conspiracy to defraud. Also, in that kind of cases, although the defendants did not know that the property was obtained from the proceeds of an indictable offence, they are convicted for dealing with property ‘believed’ to be proceeds from an indictable offence. In the present case, both applicants pleaded guilty to conspiracy to defraud. The facts they had admitted also indicate their active participation in the scheme. Their acts were more serious than the ones in a general ‘money laundering’ case.”", "zh-HK": "一般而言，控方選擇以『處理已知道或相信為可公訴罪行的得益的財物』為控罪，主要原因是控方未能在毫無合理疑點的標準下，證明被告人直接參與串謀詐騙；而且在該類案件中，雖然不知道該財物是從可公訴罪行得益而來的，但是因為他們處理他們『相信』為可公訴罪行得益的財物被定罪。在本案中，兩名申請人承認串謀詐騙罪，他們同意的案情亦顯示兩人積極參與計劃，其行為的嚴重性比一般『洗黑錢』者更甚。」" } }, { "doc_id": 59, "seg_id": 62, "translation": { "en": "The same issue arose in the recent case of HKSAR v Cen Huakuo CACC 21/2014 (date of judgment: 4 July 2014). The victim in that case was a 78-year-old lady. She received a phone call in which she was told that her son had committed some offences of indecency, for which $50,000 had to be paid in order to ensure his safety. The defendant then showed up at the designated place. He asked the victim if she had brought along the money, and he was able to say the name of her son. He claimed that her son was being held captive. He handed a mobile phone to her so that another male could continue to put pressure on her. As a result, the defendant was convicted after trial on one count of “conspiracy to deal with property known or believed to represent proceeds of an indictable offence”. Having referred to Hung Yung Chun, the judge also adopted 4 years as the starting point and enhanced the term by 50% on the ground that there had been a sharp increase in the same type of cases. On appeal, the Court of Appeal considered the sentence clearly excessive and took the view that the appropriate starting point was 3 years and that the extent of enhancement should not exceed one-third. The Court of Appeal reasoned as follows:", "zh-HK": "同一議題，在近期的另一案例再度出現：香港特別行政區訴岑‍華‍擴 CACC 21/2014（判案書如期：2014 年7 月4 日）。該案受害人是一名78 歲的老婦。她接獲電話指其兒子因犯下某些淫褻罪行而需要支付5 萬元以確保他的安全。接著，涉案被告在指定的地方出現。他問老婦是否有帶錢，並能說出老婦的兒子的名字。他聲稱老婦的兒子正遭人扣押。他把一部手提電話交予老婦，讓另一男子繼續向老婦施壓。結果，被告經審訊後被裁定一項「串謀處理可公訴罪行的得益」罪成立。法官在援引過洪永俊案後同以4 年為量刑基準，並因同類案件飆升而給被告加刑50%。就此刑期，上訴法庭認為無疑是過重的。上訴法庭認為，適合的量刑起點是3 年，加刑的幅度也不應超過三分一。以下是上訴法庭的理由：" } }, { "doc_id": 59, "seg_id": 63, "translation": { "en": "The sentences passed in Hung Yung Chun were based on the fact that the defendants knew the details of the deception offences including the fact that the victims were put into fear because someone told them that their family members were being detained or beaten up, and the victims gave the culprits several hundred thousand dollars out of that fear. Owing to the above factors, the Court of Appeal was of the view that the culpability of the defendant of a phone deception case was more serious than that of the defendant of a street deception and thus adopted the starting point of 4 years.", "zh-HK": "洪永俊案的判刑是建基在被告人知悉詐騙罪行的犯案詳情，包括受害人遭人恐嚇，指其家人遭人禁錮或毆打而受害人是在恐慌下向賊人支付數十萬元。亦因為上述原因，上訴法庭認為電話騙案的罪責較街頭騙案更為嚴重而要採納4 年的量刑基準。" } }, { "doc_id": 59, "seg_id": 64, "translation": { "en": "In ‘money laundering’ cases, some defendants have no knowledge or only have an incomplete or sketchy understanding about the indictable offence in connection with the ‘money laundering’ offence, but some defendants, even though they have not taken part in the relevant indictable offence, may have detailed knowledge and understanding of it and are also aware of the adverse impact arising out of their acts of ‘money laundering’. The Court has to take into account these factors when considering the sentence.", "zh-HK": "在“洗黑錢”案件，某些被告人對和“洗黑錢”罪行有關的可公訴罪行不知情或只有一些偏面及粗略的理解，某些被告人即使沒有參與有關的可公訴罪行，但他們可能對該些罪有詳細的認知及了解，亦知悉他們的“洗黑錢”行為會做成的不良後果。在考慮適當判刑時，法庭須將上述因素考慮在內。" } }, { "doc_id": 59, "seg_id": 65, "translation": { "en": "The applicant did not take part in the deception, he told Madam Chan that her son was being detained, but that only shows his sketchy understanding about the relevant indictable offence and does not mean that he knew the details. When considering the applicant’s knowledge about the relevant indictable offence, the trial judge should not have interpreted the facts in the most unfavourable way against the applicant.", "zh-HK": "申請人沒有參與詐騙罪行，申請人向陳婆婆說其兒子遭人捉著只顯示他對有關的可公訴罪行有粗略的理解，不代表他知悉詳情。在考慮申請人對有關可公訴罪行的認知時，原審法官不應以對申請人最不利的方式銓釋案情。" } }, { "doc_id": 59, "seg_id": 66, "translation": { "en": "The prosecution evidence was insufficient to show that the applicant knew the culprit did tell Madam Chan that harm would be done to her son as he had committed some offences of indecency. The trial judge considered that what happened was equivalent to kidnapping Madam Chan and that she was subjected to far greater fear and stress than those experienced by victims in street deception cases, and he blamed the applicant for that. In the circumstances of the present case, this approach was unfair to the applicant.", "zh-HK": "控方證據不足以證明申請人知悉賊人有向陳婆婆聲稱其兒子犯了因某些淫褻行為而會被人傷害。原審法官以事件如同綁架陳婆婆，令她受驚嚇和壓力的程度遠比街頭騙案為大歸罪於申請人。以本案的背景而言，上述的處理方法對申請人是不公平的。" } }, { "doc_id": 59, "seg_id": 67, "translation": { "en": "In any event, the criminal acts of the defendants in Hung Yung Chun were far more serious than that of the applicant. The applicant did not take part in the relevant deception offence, and it is very likely that he was just instructed to collect money from Madam Chan.", "zh-HK": "無論如何，洪永俊案的被告人的罪行遠較申請人的罪行嚴重。申請人沒有參與有關的詐騙罪行，亦極有可能只是遭人指使去向陳婆婆收錢。" } }, { "doc_id": 59, "seg_id": 68, "translation": { "en": "Although the applicant must have known that the money collected from Madam Chan was obtained unlawfully and the incident was in connection with the phone deception, it was too harsh to apply the starting point in Hung Yung Chun to him.", "zh-HK": "雖然申請人必然知悉向陳婆婆收取的金錢是非法獲得而事件和電話騙案有關，但以洪永俊案所採納的量刑基準施用於申請人身上屬過份嚴苛。" } }, { "doc_id": 59, "seg_id": 69, "translation": { "en": "Aggravating factors may vary in different cases. In respect of ‘money laundering’ offences, the amount of the ‘black money’ involved is certainly a major sentencing consideration (see paragraph 38 of the judgment in Boma and paragraph 44 of the judgment of HKSAR v. Ngai Fung Sin Apple [2013] 5 HKLRD 95). The amount of the ‘black money’ involved in this case is $50,000. The starting point of 4 years adopted by the trial judge is still manifestly excessive even if sentencing is considered from the point of view most unfavourable to the applicant. His approach of enhancing the sentence by 50% due to the rising trend of this type of offence is also too severe. In fact, there is no authority to support the trial judge’s enhancement by 50%. We do not consider it a proper approach, especially on the facts of this case.", "zh-HK": "不同案件都可能會有不同的加重罪責因素，但以“洗黑錢”罪行而言，涉案“黑錢”的數額必然是判刑的主要因素（見Boma案判案書第38段和香港特別行政區訴倪‍鳳‍仙 [2013] 5 HKLRD 95案判案書第 44 段）。本案涉及的“黑錢”是5 萬元，即使以對申請人最不利的角度考慮判刑，原審法官採納的4 年量刑基準屬明顯過重。而他因同類案件有上升趨勢而將刑期加長50%亦屬過份嚴苛。事實上過往並沒有案例支持原審法官加刑50%的處理方法，本庭亦不認同該處理方法，特別是以本案的案情而言。" } }, { "doc_id": 59, "seg_id": 70, "translation": { "en": "Taking into account all the circumstances of the case and the requirement that a sentence should have deterrent effect in order to prevent mainlanders from taking part in such an abhorrent and despicable offence like ‘phone deception’ in whatever manner, we are of the view that the appropriate starting point is 3 years’ imprisonment, and the sentence should be enhanced by one-third pursuant to the Organized and Serious Crimes Ordinance.”", "zh-HK": "考慮到案件的整體背景及判刑須具阻嚇力避免內地人士以任何形式參與“電話騙案”這類極為令人討厭及不恥的罪行，本庭認為適當的倆高興基準為3 年，而根據《有組織及嚴重罪行條例》加刑的幅度應為三分一。」" } }, { "doc_id": 59, "seg_id": 71, "translation": { "en": "In our view, the above analysis is entirely applicable to the present case. Sensible as it is, the trial judge’s understanding of the applicant’s role in the offences could not possibly have led to the conclusion that the applicant was of the same gang as the fraudster. The situation of the applicant falls squarely within that referred to in Cen Huakuo, namely that he had no more than some sketchy idea about the predicate offence. We do note that the trial judge had clearly indicated to the defence that he did not believe that the applicant had no knowledge of the deception, but the defence chose not to adduce evidence on that issue in a voir dire. Even so, the problem remains that the trial judge did not have sufficient evidence before him to reach the conclusion that he did. The trial judge had plainly reversed the burden of proof by drawing a conclusion adverse to the applicant as a result of the defence’s failure to adduce evidence.", "zh-HK": "本庭認為，上述的分析，在本案完全適用。原審法官對申請人犯案時的角色的理解，雖有一定道理，但也絕不至於能讓人得出申請人與有關騙徒同屬一夥的結論。申請人的情況，完全可以是岑‍華‍擴案所提到的，對源頭罪行只有粗略認識的狀態。當然，本庭亦注意到，原審法官曾清楚向辯方表明不信申請人對騙案不知情，但辯方卻選擇不就相關的議題在案中案舉證。問題是，就算這樣，原審法官仍然沒有足夠的現存證據來達致他所作出的結論。原審法官因辯方不舉證而對申請人有不利的結論，無疑是顛倒了控辯雙方的舉證責任。" } }, { "doc_id": 59, "seg_id": 72, "translation": { "en": "In view of the above findings, a starting point of 4 years for each offence is in our view manifestly excessive. As regards whether or not the sentence should be enhanced, we respectfully adopt another observation made in Cen Huakuo, namely that the court “may … take into account the overall circumstances of the case in so far as they are related to the defendant’s culpability”. This means that the applicant’s acts were after all an important part of the phone scams, and at the material time phone deception was indeed rampant and caused great harm to the community. Therefore, it is appropriate to enhance the sentence in the present case pursuant the Organized and Serious Crimes Ordinance, as was the case in Cen Hua Kuo.", "zh-HK": "基於以上的裁決，本庭認為，每罪4 年的量刑起點，是明顯過重。至於是否應加刑的問題，本庭會採納岑‍華‍擴案的另一觀察，即法庭「可考慮和被告人罪責有關的整體背景來作出判刑」。意思是，申請人的行為，始終是電話騙案的重要一環，而電話騙案在有關時段實在猖獗，對社會構成很大傷害。因此，按《有組織及嚴重罪行條例》來加刑，在本案也是合適的，就正如岑華擴案的被告被加刑一‍樣。" } }, { "doc_id": 59, "seg_id": 73, "translation": { "en": "Finally, the applicant complains that but for his own confession, the prosecution would not have had any evidence to prosecute him on Charges 1 and 2, but this was not fully reflected in the sentence imposed by the trial judge. This argument is open to question. For example, the applicant, a Mainland resident, was in Hong Kong on the day in question, and his features were captured by the CCTV when he entered the building in question. All these, as the trial judge clearly pointed out in his judgment, are independent pieces of evidence against the applicant on Charge 2. Even more importantly, the Court of Appeal has already decided on the same issue in HKSAR v Ma Ming [2013] 1 HKLRD 806, reaching a conclusion different from what the applicant contends:", "zh-HK": "最後，申請人投訴，控罪（1）和控罪（2）得以偵破，全賴他的自行招認，否則控方根本沒有證據向他進行起訴，但原審法官卻沒有就這點在刑期上有足夠反映，這點是有爭議的。例如，作為內地居民的申請人在案發當日身在香港，他進入案發大廈時又被閉路電視拍下容貌，這都是指證控罪（2）的獨立證據，原審法官已在判詞清楚指出。不過，更重要的是，上訴法庭已就同一議題在香港特別行政區訴馬‍明 [2013] 1 HKLRD 806作過裁決，結論與申請人的主張並不一樣：" } }, { "doc_id": 59, "seg_id": 74, "translation": { "en": "The applicant cooperated with the police and after he was arrested he frankly confessed. This led to his being charged with the 1st charge. We are of the view that this factor should also be subsumed within the one third discount, and should not be treated as a reason for giving any discount more than one third. Otherwise, it would be in conflict with the policy and purpose of giving the one third discount. Not only would it create uncertainly but also it would give rise to disputes, and so it is against public interest.", "zh-HK": "本庭認為申請人和警方合作，在被捕後坦白招認而導致被控第一項控罪這因素亦應歸納在三分一刑期扣減之內，而非導致超過三分一刑期扣減的因素，否則會和三分一刑期扣減的政策和目的有抵觸，不但構成不明確因素，更會導致爭拗，和公眾利益不符。" } }, { "doc_id": 59, "seg_id": 75, "translation": { "en": "When dealing with individual cases and when considering the totality of the sentence, the court, in exercising its discretion, can take into account the fact that the frank confession of the defendant provides the only evidence which support the charge or charges and therefore make minor adjustments to the total sentence. To this we do not object. However, this factor does not support the argument that this kind of defendants must be given a further discount over and above the one third discount. If the court does not give such defendants any discount in addition to the one third discount, that does not constitute an arguable ground of appeal.", "zh-HK": "本庭不反對在個別案件及在處理整體判刑時，法庭可以行使酌情權，因為被告人的坦白招認是唯一支持控罪的證據，而將整體判刑作出輕微調整。但該因素不支持法庭必需給予該類被告人超過三分一的額外刑期扣減的立場。在法庭沒有給予該類被告人超過三分一的額外刑期扣減時，該因素亦非可爭拗的上訴理由。" } }, { "doc_id": 59, "seg_id": 76, "translation": { "en": "In giving the one third discount to the applicant upon his pleading guilty, the trial judge had already taken into account the applicant’s cooperation with the police, his voluntary confession and his guilty plea entered in court. That he was denied a further discount in addition to the one third discount cannot constitute a reasonable complaint, nor can it be a ground of appeal against sentence. This ground put forward by Mr. Ma is not substantiated.”", "zh-HK": "原審法官因申請人承認控罪而給予他三分一的刑期扣減已包括了申請人和警方合作、自動招認及在法庭上承認控罪等因素。申請人不能以未能獲得超過三分一的刑期扣減而有合理投訴，更不能以此為上訴理由，要求減刑。馬‍大律師提出的這一點上訴理由不成立。」" } }, { "doc_id": 59, "seg_id": 77, "translation": { "en": "It should also be mentioned that it was in fact not correct for the trial judge to adjust the sentence for Charge 1 by making part of the term concurrent in order to reflect that the charge resulted solely from the applicant’s confession. The correct approach would have been to treat the special circumstances of Charge 1 as an additional mitigating factor (if it was indeed necessary to consider such circumstances) and make adjustment to the sentence for Charge 1 during the pleas of guilty and application for enhancement, and then determine the total sentence for the case having regard to the totality principle.", "zh-HK": "還要一提的是，原審法官以部分同期執行的方法來調整控罪（1）的刑期，以反映它乃純出於申請人的招認的做法，其實並不正確。正確的做法，是把控罪（1）的特別情況（如果真要考慮的話），視作額外的求情因素，在認罪答辯及加刑申請的過程中對控罪 （1）本身的刑期作出調整，然後再在數罪併罰不能過重的原則下設定全案的總刑期。" } }, { "doc_id": 59, "seg_id": 78, "translation": { "en": "In our view, a starting point of 3 years can be adopted for both Charge 1 and Charge 2 which took place on two consecutive days. The applicant defied the law again after 53 days by committing the offence in Charge 3, and a starting point of 3 years and 3 months is warranted for that charge. In view of the decision in Ma Ming, we see no reason for giving more than one-third discount for Charges 1 and 2. Therefore, only the usual discount for guilty pleas will be given to these two charges and Charge 3, which means the terms therefor are reduced to 2 years, 2 years, and 2 years and 2 months respectively. The sentences should then be enhanced by one-third pursuant to the Organized and Serious Crimes Ordinance, to 32 months, 32 months and 34 months respectively. The total sentence should in our view be 46 months in order to reflect the overall seriousness of the case. To this end, the sentences for Charges 1 and 2 can be made wholly concurrent, but 12 months of that term is to run consecutively to the sentence for Charge 3, making a total term of 46 months. The compensation order will remain undisturbed.", "zh-HK": "本庭認為，控罪（1）和控罪（2）在連續兩天發生，可同時以3 年作量刑基準。五十三天之後，申請人不惜再度以身試法，進一步犯下控罪（3），則應以3 年3個月作起點。基於馬‍明一案的判決，本庭不認為控罪（1）和控罪（2）應有多於三分一的扣減，所以此兩罪與控罪（3）只會因申請人的認罪答辯而獲得一般的扣減至2 年、2 年及2 年2個月。之後，有關的刑期應按《有組織及嚴重罪行條例》加刑三分一至32個月、32個月及34個月。總刑期方面，本庭認為應設定於46個月以反映本案的整體嚴重性。為此，控罪 （1）及控罪（2）的刑期可完全同期執行，但其中十二個月則須與控罪（3）的刑期分期執行，合共46個月。賠償令不變。" } }, { "doc_id": 59, "seg_id": 79, "translation": { "en": "Decision", "zh-HK": "判決" } }, { "doc_id": 59, "seg_id": 80, "translation": { "en": "We allow the applicant’s application and, treating the hearing as the appeal proper, allow the appeal. The outcome is set out in paragraph 19 above.", "zh-HK": "本庭批准申請人的申請，並視之為正式的上訴，兼宣判其得直，結果見上文第19段。" } }, { "doc_id": 59, "seg_id": 81, "translation": { "en": "Miss Vivien Chan, Senior Public Prosecutor of the Department of Justice, for the respondent, the HKSAR.", "zh-HK": "答辯人：由律政司高級檢控官陳文慧代表香港特別行政區。" } }, { "doc_id": 59, "seg_id": 82, "translation": { "en": "Mr James Tze, instructed by Messrs Pang, Wan and Choi and assigned by the Legal Aid Department, for the applicant.", "zh-HK": "申請人：由法律援助署委派彭溫蔡律師行轉聘謝英權大律師代表。" } }, { "doc_id": 60, "seg_id": 1, "translation": { "en": "Hon Barnes J (giving the reasons for judgment of the Court):", "zh-HK": "原訟法庭法官張慧玲頒發上訴法庭判案理由書 ：" } }, { "doc_id": 60, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 60, "seg_id": 3, "translation": { "en": "The three appellants were jointly charged with one count of attempted theft, contrary to section 9 of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong. The 3rd appellant was additionally charged with one count of theft, contrary to section 9 of the Theft Ordinance.", "zh-HK": "三名上訴人一同被控一項「企圖盜竊罪」，違反香港法例第210 章《盜竊罪條例》第9 條及第200 章《刑事罪行條例》第159G 條。第三上訴人另被控一項「盜竊罪」，違反上述《盜竊罪條例》第9 條。" } }, { "doc_id": 60, "seg_id": 4, "translation": { "en": "They pleaded not guilty to the charges and the case was heard before Deputy District Judge Lin, who convicted all the three of them of attempted theft and also convicted the 3rd appellant of theft.", "zh-HK": "三名上訴人否認控罪，案件在區域法院暫委法官練‍錦‍鴻席前審訊。練‍法官裁定三名上訴人就「企圖盜竊罪」罪名成立，另第三上訴人亦就「盜竊罪」罪名成立。" } }, { "doc_id": 60, "seg_id": 5, "translation": { "en": "For attempted theft, the Deputy Judge sentenced each appellant to 26 months’ imprisonment. For the theft charge, he sentenced the 3rd appellant to two months’ imprisonment, which was to be served concurrently with the 26 months for attempted theft, so the total sentence was still 26 months.", "zh-HK": "就「企圖盜竊罪」，練‍法官判處每名上訴人26 個月監禁。就「盜竊罪」，練‍法官判處第三上訴人監禁兩個月，與「企圖盜竊罪」的26 個月刑期同期執行，合共仍為26 個月。" } }, { "doc_id": 60, "seg_id": 6, "translation": { "en": "All three appellants applied for leave to appeal against sentence. Leave was granted by the Honourable Mr. Justice Yeung VP on 31 August 2012 to the three appellants to appeal against their sentences. The 3rd appellant applied for leave to appeal against conviction as well, but was refused by Yeung VP.", "zh-HK": "三名上訴人均就判刑提出上訴許可申請。上訴庭副庭長楊‍振‍權於2012 年8 月31 日批准三名上訴人就刑罰提出的上訴許可申請 (第三上訴人另就定罪提出上訴許可申請，但被楊‍法官駁回)。" } }, { "doc_id": 60, "seg_id": 7, "translation": { "en": "Facts", "zh-HK": "案情" } }, { "doc_id": 60, "seg_id": 8, "translation": { "en": "The facts were that on the day in question, a police constable, who had just finished an anti-pickpocket operation and was about to go off duty, saw the three appellants hanging around outside Pioneer Centre, Nathan Road, Mongkok and paying their attention to the backpacks and handbags of the pedestrians. He then tailed behind them and called for assistance through his beat radio.", "zh-HK": "案情顯示在案發當日，一名剛完成「反扒竊行動」，正準備下班的警員目睹三名上訴人在旺角彌敦道始創中心外徘徊及留意行人的背囊、手袋。警員遂尾隨三人，並以對講機要求同事支援。" } }, { "doc_id": 60, "seg_id": 9, "translation": { "en": "The constable followed the three appellants to reach Sai Yeung Choi Street, Mongkok. The 3rd appellant signalled to the 1st appellant by pointing to a shop. The 1st appellant nodded and entered the shop. At that time a female shopper was selecting garments. The 1st appellant stood beside her, picked up a garment with one hand and at the same time put the other hand into the handbag which the shopper was carrying, but after a very short moment she withdrew her hand. At that moment, the 2nd appellant went into the shop and stood behind the shopper. He held a corner of the garment which the 1st appellant was holding in her hand and then he raised his hand, thus lifting up part of the garment. The 1st appellant made use of this opportunity and put her hand into the shopper’s handbag again, but she drew back her hand immediately. Then, the 1st and the 2nd appellants left the shop and joined the 3rd appellant, who was outside the shop. The 3rd appellant shook her head to the 1st appellant, who, likewise, shook her head to the 3rd appellant. The evidence showed that the shopper’s bag was in fact a carrier bag. The shopper put her personal property in the bottom of the bag, and the top of her personal property was covered by a plastic bag with some sundry items inside. This explained why the 1st appellant put her hand into the bag twice but failed to get anything.", "zh-HK": "警員尾隨三人至旺角西洋菜街。第三上訴人向第一上訴人指向一商舖，第一上訴人點頭及進入該店舖。當時有一名女顧客正在挑選衣服。第一上訴人站在該顧客身旁，拿起一件衣服，同時用另一隻手伸入該顧客攜帶的手袋，但很快便縮回手。此時，第二上訴人亦進入店舖，站在該顧客身後，把第一上訴人手提起的衣服其中一角拉起，第一上訴人趁機再伸手入該顧客的手袋，但亦隨即縮手。第一及第二上訴人便離開店舖，與在店舖外的第三上訴人會合。第三上訴人向第一上訴人做出一搖頭動作，而第一上訴人亦向第三上訴人作出搖頭動作。證供顯示該顧客的手袋其實是個手抽。女客人將個人財物放在手抽底部，上面蓋了另一個裝有個人雜物的膠袋，故此第一上訴人兩次伸手入袋都無功而回。" } }, { "doc_id": 60, "seg_id": 10, "translation": { "en": "The activities of the three appellants were witnessed by the policemen who were on duty nearby. Subsequently, they were arrested outside the MTR station on Prince Edward Road by the policemen.", "zh-HK": "三名上訴人的行徑已被在附近值班的警員目睹，其後警員在太子道地鐵站外將她們三人拘捕。" } }, { "doc_id": 60, "seg_id": 11, "translation": { "en": "The police found a personal Octopus card on the 3rd appellant. The holder of the card was a girl student, who lost the card sometime between 5 to 6 p.m. on the same day when she was riding the MTR. The Deputy Judge found that the 3rd appellant, with dishonest intent, retained the Octopus card in her possession.", "zh-HK": "警員在第三上訴人身上搜到一張個人八達通卡，卡主是一名女學生，她在同日下午約5 時許乘搭地鐵時失去該八達通卡。練‍法官裁定第三上訴人在有不誠實企圖下管有該張八達通卡。" } }, { "doc_id": 60, "seg_id": 12, "translation": { "en": "Reasons for sentence", "zh-HK": "判刑理由" } }, { "doc_id": 60, "seg_id": 13, "translation": { "en": "The Deputy Judge considered the sentencing guidelines laid down by the Court of Appeal in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 and took into account the aggravating features mentioned therein. In addition, the Deputy Judge referred to a recent case, HKSAR v Chan Mei Yee, Carman [2010] 4 HKC 571. He said that in Chan Mei Yee the Court of Appeal had found that a starting point of 30 months was not excessive, where the case happened in a crowded area and at the time of the offence the defendant was a repeat offender.", "zh-HK": "練‍法官在量刑時考慮了上訴庭在HKSAR v Ngo Van Huy [2005] 2 HKLRD 1一案訂下的量刑指引，同時考慮了在該案提及的加刑因素。練‍法官另考慮了一宗新近的案例：香港特別行政區訴陳美儀 [2010] 4 HKC 571。練‍法官指在陳美儀一案上訴庭指案件在人多之處發生，及犯案時是重犯，以30 個月為量刑起點並不為過。" } }, { "doc_id": 60, "seg_id": 14, "translation": { "en": "The Deputy Judge was of the view that this case happened in a public place, and that even though there were not a large number of pedestrians at the material time, the commission of the offence in this well-known shopping area in Mongkok was an aggravating feature. The Deputy Judge did not classify the case as one involving an element of international crime gang despite the fact that both the 1st and the 2nd appellants were residents of the Mainland.", "zh-HK": "練‍法官認為本案發生在公眾場所，雖然當時行人不多，但在旺角此著名購物區犯案是加刑因素。雖然第一及第二上訴人均為內地居民，練‍法官在量刑時並無將案件列為涉及國際犯罪集團的案件。" } }, { "doc_id": 60, "seg_id": 15, "translation": { "en": "In sentencing, the Deputy Judge had regard to the fact that the three appellants were deaf-mutes, their clear records and their personal backgrounds (The 1st appellant was 40 years old. She was separated and lived with her six year old daughter and aged parents. She was dependent on the money provided by her ex-husband. The 2nd appellant was 43 years old and was provided for by her parents. Besides being a deaf-mute, he has also some problems with his eyesight. The 3rd appellant was 45 years old. She lived with her husband, whose hearing was also defective, and her nine year old son. She lived on CSSA.).", "zh-HK": "練‍法官在量刑時考慮了三名上訴人都是聾啞人士、三人都無刑事紀錄、及她們三人的個人背景 (第一上訴人年40 歲，分了居，與6 歲女兒及年邁父母同住，以前夫提供的金錢維生；第二上訴人年43 歲，靠父母供養，他除了聾啞外，視力亦有問題；第三上訴人45 歲，與同是聽力有問題的丈夫及一名9 歲兒子同住，靠綜援為生)。" } }, { "doc_id": 60, "seg_id": 16, "translation": { "en": "The Deputy Judge used 28 months as the starting point and, having taken into account the fact that they were all handicapped persons, and that furthermore, the 1st and the 2nd appellants were Mainlanders, who would encounter more difficulties during their incarceration in a correctional institution than people without disabilities would, decided to exercise his discretion to reduce it by two months, thereby arriving at the sentence of 26 months’ imprisonment.", "zh-HK": "練‍法官以28 個月為量刑起點。考慮到她們都是有殘障人士，而第一及第二上訴人更是內地人，拘押在懲教署時遇到的困難會較沒有殘障的人為多，因此決定行使酌情權，減免兩個月，而達致26 個月監禁此刑期。" } }, { "doc_id": 60, "seg_id": 17, "translation": { "en": "As for the theft charge of which the 3rd appellant was convicted, the Deputy Judge considered that the facts were similar to those of a case of", "zh-HK": "就第三上訴人被裁定罪名成立的「盜竊罪」，練‍法官認為案情與「拾遺不報」案件類同，在考慮了第三上訴人已就其他控罪被判入獄，遂判處第三上訴人入獄兩個月，但與「企圖盜竊罪」的26 個月監禁同期執行。" } }, { "doc_id": 60, "seg_id": 18, "translation": { "en": "“appropriation of lost property”. In view of the fact that the 3rd appellant had already been sentenced to prison for the other offence, he sentenced her to two months’ imprisonment, which was to be served concurrently with the 26 months’ imprisonment for attempted theft.", "zh-HK": "上訴理由" } }, { "doc_id": 60, "seg_id": 19, "translation": { "en": "Grounds of appeal", "zh-HK": "第一上訴人" } }, { "doc_id": 60, "seg_id": 20, "translation": { "en": "1st appellant", "zh-HK": "第一上訴人並無書面陳詞。她向本庭表示她知錯，希望可以減刑。" } }, { "doc_id": 60, "seg_id": 21, "translation": { "en": "The 1st appellant did not prepare any written submission. She told this court that she regretted for what she had done and hoped that her sentence could be reduced.", "zh-HK": "第二上訴人" } }, { "doc_id": 60, "seg_id": 22, "translation": { "en": "2nd appellant", "zh-HK": "第二上訴人向本庭提交一封信件。他重申他除了聾啞外，視力亦有問題。基本上他亦是希望可以減刑。" } }, { "doc_id": 60, "seg_id": 23, "translation": { "en": "The 2nd appellant submitted a letter to this court. He reiterated that apart from being unable to speak or hear, he was having trouble with his eyesight. Basically, he also hoped that his sentence could be reduced.", "zh-HK": "第三上訴人" } }, { "doc_id": 60, "seg_id": 24, "translation": { "en": "3rd appellant", "zh-HK": "第三上訴人沿用她先前已呈交的書面陳詞。基本上她指她是無辜的。她知道第一及第二上訴人已知錯，但她本人是無辜的，因此她不甘心坐冤獄，希望可獲得減刑。" } }, { "doc_id": 60, "seg_id": 25, "translation": { "en": "The 3rd appellant adopted the written submission which was filed earlier on. What she essentially said was that she was innocent. She knew that the 1st and the 2nd appellants regretted for what they had done, but she said that she was innocent and that she could not reconcile herself to the fate of having to be unjustly sent to prison. She hoped that her sentence could be reduced.", "zh-HK": "答辯人回應" } }, { "doc_id": 60, "seg_id": 26, "translation": { "en": "Respondent’s reply", "zh-HK": "答辯人代表署理高級助理刑事檢控專員譚‍思‍樂指以28 個月為量刑起點可能是較重，但非明顯過重，況且練‍法官亦已將刑期減至26 個月，刑期並非過份嚴苛。" } }, { "doc_id": 60, "seg_id": 27, "translation": { "en": "Mr. Tam, Acting Senior Assistant Director of Public Prosecutions, for the respondent, submitted that the starting point of 28 months might be at the high end of the range but was not manifestly excessive, that the Deputy Judge had already reduced it to 26 months, and that therefore the sentences were not too severe.", "zh-HK": "本庭所作的考慮" } }, { "doc_id": 60, "seg_id": 28, "translation": { "en": "Our considerations", "zh-HK": "就扒竊案件，上訴庭在Ngo Van Huy一案已訂下量刑指引。簡而言之，上訴庭指一名初犯者的基本量刑起點是12至15 個月即時監禁。但若案件涉及下列加重刑罰因素，則法庭可因應情況而加刑。加重刑罰因素包括犯案時犯案者曾使用武器或利器、罪行在人擠的地方 (如地鐵、馬場、購物區) 發生、犯案者與其他黨羽共同行事、案件涉及有組織的扒竊集團——尤其是從外國來港犯案的扒竊集團，等等。" } }, { "doc_id": 60, "seg_id": 29, "translation": { "en": "Sentencing guidelines for pickpocketing cases were laid down by the Court of Appeal in Ngo Van Huy. Putting it briefly, the Court of Appeal held that the basic starting point for a first time offender was 12 to 15 months’ immediate imprisonment, and that if there were any aggravating features, a higher sentence could be imposed according to the circumstances. Aggravating features include the use of a weapon or a sharp object by the offender during the commission of the offence; the offence was committed in a crowded place (e.g. the MTR, the racecourse or a crowded shopping area); the offender acted in concert with other members of his gang; the case involved an organized ring of pickpockets — in particular a ring of pickpockets coming to Hong Kong from overseas to commit crimes; and so on.", "zh-HK": "在陳美儀 一案，犯案人28 歲，有多項犯案紀錄，其中最少11 項與盜竊有關。犯案日期是最近一次坐牢後出獄不久。犯案的情況是犯案人與一名同黨在旺角一繁忙街道尾隨受害人，同黨開了雨傘在受害人背後身邊站著，犯案人則手持傳單遮擋著受害人的背囊，成功拉開拉鍊約8 吋，伸手入背囊內。此時，一直監視犯案人及其同黨的警員現身，採取行動，其中一名警長捉著犯案人的手，將兩人拘捕。原審法官以2½ 年為量刑起點，因犯案人案底纍纍，加刑9 個月，判犯案人監禁39 個月。" } }, { "doc_id": 60, "seg_id": 30, "translation": { "en": "In Chan Mei Yee, the offender was 28 years old and had a lengthy record of criminal convictions, of which no fewer than 11 were related to theft. The day she committed the offence was not long after her release from imprisonment for her last offence. The offence in that case took place in the following circumstances: The offender and an accomplice followed their victim in a busy street in Mongkok. The accomplice unfurled an umbrella, standing behind and near the victim, while the offender had in her hand a flyer which she used to cover the backpack of the victim. She opened the zip by about eight inches and inserted her hand into the backpack. At this juncture the policemen, who had been watching the offender and her accomplice, came out and took action. A sergeant grabbed hold of the offender’s hand and both persons were arrested. The trial judge used 2½ years as the starting point, to which he added nine months on account of the appalling record of the offender, making a total of 39 months’ imprisonment.", "zh-HK": "上訴庭考慮了Ngo Van Huy 及分析一連串有關扒竊的案件 (包括HKSAR v Tan Hong Sheng [2006] HKCU 938, R v Saldana Alca Jose & Anor [1997] HKCU 103, HKSAR v Duong Van Dung [2004] HKCU 1386, HKSAR v Dang Van Tuan [2010] 1 HKLRD 330, HKSAR v Liao Mei & Ors [2005] HKCU 17，等等)。" } }, { "doc_id": 60, "seg_id": 31, "translation": { "en": "The Court of Appeal considered Ngo Van Huy and analyzed a number of cases about pickpocketing (including HKSAR v Tan Hong Sheng [2006] HKCU 938, R v Saldana Alca Jose & Anor [1997] HKCU 103, HKSAR v Duong Van Dung [2004] HKCU 1386, HKSAR v Dang Van Tuan [2010] 1 HKLRD 330, HKSAR v Liao Mei & Ors [2005] HKCU 17, etc.).", "zh-HK": "上訴庭指出並非所有涉及多於一人的扒竊案件的量刑起點都是2½ 年監禁。在考慮了案情後，上訴庭認為該案在考慮其他求情因素前，不應已達致2½ 年的監禁。上訴庭認為應先因應「企圖盜竊」此案情而達致15 個月量刑起點，然後考慮加刑因素。考慮了案件在繁忙的街道發生、犯案者與他人共同行事及其先前眾多的犯案紀錄，上訴庭指總刑期2½ 年是恰當的。因此判令上訴得直，將刑期由39 個月減至30 個月。" } }, { "doc_id": 60, "seg_id": 32, "translation": { "en": "The Court of Appeal pointed out that not all pickpocketing cases involving more than one offender warranted a starting point of 2½ years’ imprisonment. Having gone through the facts of the case, the Court of Appeal held the view that the starting point of 2½ years’ imprisonment should not have been taken before considering other factors. The Court of Appeal remarked that one should commence with a starting point of 15 months’ imprisonment on the basis of the facts of the attempted theft charge in question, and then address the aggravating features. Taking into account the fact that the offence took place in a busy street, that the offender acted in concert with another person and the offender’s many previous criminal convictions, the Court of Appeal found that an overall sentence of 2½ years was appropriate. Accordingly, the appeal was allowed and the sentence was reduced from 39 months to 30 months.", "zh-HK": "練‍法官在判刑時特別考慮了陳美儀 案件。練‍法官認為三名上訴人共同行事，在著名購物區犯案是加刑因素。練‍法官並無以第一及第二上訴人特別來港犯案作為加刑因素。練‍法官在考慮了三人均無刑事紀錄後，認為28 個月量刑起點是恰當的。" } }, { "doc_id": 60, "seg_id": 33, "translation": { "en": "In sentencing the appellants, the Deputy Judge specifically considered Chan Mei Yee. He regarded the fact that the appellants acted in concert and that the offence took place in a well-known shopping area as aggravating features. He did not treat the fact that the 1st and the 2nd appellants came to Hong Kong specifically for the purpose of committing crimes as an aggravating feature. Having taking into account the clear record of the appellants, he concluded that a starting point of 28 months was appropriate.", "zh-HK": "本庭認為以三名上訴人都是初犯者，基本量刑起點應是15 個月監禁。他們三人共同行事，在著名購物區犯案，是加刑因素，但他們並非計劃周詳，而且當時購物區並非人群擠擁，此等情況應列入考慮之列。以練‍法官採納的28 個月看來，加刑幅度是13 個月監禁 (28 個月 - 15 個月)，本庭認為以本案所有情況而言，是過份嚴苛。本庭認為考慮了有關加刑因素後，量刑起點應是21 個月。" } }, { "doc_id": 60, "seg_id": 34, "translation": { "en": "In our judgment, since the three appellants were first time offenders, one should start off with a starting point of 15 months’ imprisonment. The three of them acted in concert and committed the offences in a well-known shopping area. These were aggravating features. However, their operation was not well planned, nor was the shopping area crowded at the material time. These factors should have been taken into consideration. The 28 months adopted by the Deputy Judge meant that the sentence was increased by 13 months (28 months — 15 months). We find that in all the circumstances of this case it was too severe. After considering the aggravating features, we hold that the starting point should be 21 months.", "zh-HK": "就「拾遺不報」此盜竊罪，本庭認同兩個月此監禁刑期是恰當的。" } }, { "doc_id": 60, "seg_id": 35, "translation": { "en": "As for the theft charge concerning “appropriation of lost property”, we agree that the term of two months was appropriate.", "zh-HK": "就練‍法官以三人都是聾啞人士而減刑兩個月，本庭認為以本案所有情況而言，酌情減刑兩個月亦是恰當的處理方法。" } }, { "doc_id": 60, "seg_id": 36, "translation": { "en": "The Deputy Judge reduced the sentences by two months for the reason that the three appellants were deaf-mutes. We hold that in all the circumstances of this case, the two months reduction of the sentences was a correct exercise of his discretion.", "zh-HK": "三名上訴人就「企圖盜竊罪」的恰當刑期應是19 個月監禁。" } }, { "doc_id": 60, "seg_id": 37, "translation": { "en": "The appropriate sentence for each of the three appellants in respect of the attempted theft charge should be 19 months’ imprisonment.", "zh-HK": "第三上訴人另外干犯的「盜竊罪」，性質與「企圖盜竊罪」不同，亦不可說是「同一事件」，刑期理應分期執行，不應同期執行。在考慮了整體刑期原則後，恰當的總刑期應是20 個月的監禁。" } }, { "doc_id": 60, "seg_id": 38, "translation": { "en": "The nature of the theft charge which the 3rd appellant additionally committed was different from that of attempted theft, and it cannot be said to be belonging to the same incident; therefore, the sentence for which should be served consecutively, not concurrently. After considering the totality principle, we hold that the appropriate total sentence should be 20 months’ imprisonment.", "zh-HK": "基於上述理由，三名上訴人上訴得直。" } }, { "doc_id": 60, "seg_id": 39, "translation": { "en": "For the above reasons, we allow the appeal lodged by the three appellants.", "zh-HK": "就「企圖盜竊罪」" } }, { "doc_id": 60, "seg_id": 40, "translation": { "en": "Attempted theft", "zh-HK": "三名上訴人各自的26 個月監禁刑期撤銷，改判19 個月監禁。" } }, { "doc_id": 60, "seg_id": 41, "translation": { "en": "The 26 months’ imprisonment imposed on each of the three appellants are set aside and replaced by 19 months’ imprisonment.", "zh-HK": "就「盜竊罪」" } }, { "doc_id": 60, "seg_id": 42, "translation": { "en": "Theft", "zh-HK": "第三上訴人被判處的兩個月刑期不變，但其中1 個月須與「企圖盜竊罪」的19 個月監禁分期執行，總刑期為20 個月。" } }, { "doc_id": 60, "seg_id": 43, "translation": { "en": "The two months’ imprisonment to which the 3rd appellant was sentenced stands, but one month of which shall run consecutively to the 19 months for the attempted theft. The total sentence is 20 months.", "zh-HK": "答辯人：由律政司署理高級助理刑事檢控專員譚思樂代表" } }, { "doc_id": 60, "seg_id": 44, "translation": { "en": "The 1st to the 3rd Appellants, acting in person, present", "zh-HK": "香港特別行政區" } }, { "doc_id": 60, "seg_id": 45, "translation": { "en": "Mr. Isaac Tam, Acting Senior Assistant Director of Public Prosecutions of the Department of Justice, for the HKSAR", "zh-HK": "上訴人：三名上訴人無律師代表，親自出庭應訊" } }, { "doc_id": 61, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 61, "seg_id": 2, "translation": { "en": "The Applicant was charged with one count of trafficking in a dangerous drug, contrary to sections 4(1)(a) and 4(3) of the Dangerous Drugs Ordinance (Cap. 134 of the Laws of Hong Kong). The dangerous drug involved was 14.41g of methamphetamine hydrochloride, commonly known as “ice”. The Applicant was convicted after trial before Deputy Judge Poon and a jury and was sentenced to 7 years’ imprisonment. The Applicant now seeks leave to appeal against both conviction and sentence.", "zh-HK": "申請人被控一項販運危險藥物罪，違反《危險藥物條例》（香港法例第 134 章）第 4(1)(a) 及4(3) 條。本案涉及的毒品是 14.41 克甲基苯丙胺鹽酸鹽，即俗稱「冰」的毒品。案件經高等法院暫委法官潘敏琦聯同陪審員審理後，申請人被裁定罪名成立及被判處監禁七年。申請人對定罪及刑期提出上訴許可申請。" } }, { "doc_id": 61, "seg_id": 3, "translation": { "en": "The facts", "zh-HK": "案情" } }, { "doc_id": 61, "seg_id": 4, "translation": { "en": "The facts revealed that at 9.20 p.m. on 8 November 2006, Customs and Excise officers entered a unit at Flat B, 4/F., 98 Yen Chow Street, Shamshuipo. The unit was rented by the Applicant, who was present in the unit at the time. From a waist-bag hung on the frame of a metal bed, the officers found a transparent plastic bag containing a drug. One of the officers (i.e. PW1) asked the Applicant what was in the transparent plastic bag, and the Applicant replied that it was “ice”. The drug in question was subsequently confirmed upon laboratory tests to be “ice” weighing 13.15g. PW1 cautioned the Applicant immediately and inquired of him whether there was any other drug in the unit apart from the abovementioned “ice”. The Applicant said there were drugs at the edge of the frame of the lower bunk bed and inside the sock which he was wearing on his left foot. From the edge of the frame of the lower bunk bed, a packet of a drug was found, which was subsequently confirmed by laboratory tests to contain 0.62g of “ice”. Another packet of a drug was also found from the said sock that the Applicant was wearing, and subsequent laboratory tests confirmed that the packet contained 0.64g of “ice”. Those two packets of drugs were each rolled into a straw-like shape and secured with adhesive tapes. The total weight of the three bags of drugs in question was 14.41g. The officers found only 61 transparent plastic bags from a plastic cabinet at the unit.", "zh-HK": "案情顯示海關關員於 2006 年 11 月 8 日晚上 9 時 20 分進入申請人在深水埗欽州街 98 號 4 樓 B 室所租住的單位內進行調查；當時申請人是在該單位內的。關員在該單位內的一張鐵床床框邊懸掛着的一個腰包內發現一個盛載着毒品的透明膠袋。此時，其中一名關員（即控方第一證人）詢問申請人透明膠袋內的東西是甚麼。申請人回答他那些東西是「冰」。有關的毒品後來被化驗及被証實為重 13.15 克的「冰」。控方第一證人即時警誡申請人及查問他在該單位內除上述「冰」外還有沒有其他毒品。申請人說他在碌架床的下格床框邊及他左腳穿著着的襪子內還藏有毒品。關員在碌架床下格的床框邊搜出一小包毒品，後經化驗被証實為 0.62 克的「冰」。另外，關員在申請人左腳的襪子裏亦發現一小包毒品，這小包毒品經化驗後被証實為 0.64 克的「冰」。該兩小包毒品都被捲成管狀和被膠紙黏貼着。本案涉及的三包毒品的總重量為 14.41 克。關員在該單位的一個塑膠櫃內只搜獲 61 個透明膠袋。" } }, { "doc_id": 61, "seg_id": 5, "translation": { "en": "At trial, the Applicant elected to give evidence. He said he had been consuming heroin for more than 20 years, but two years prior to the offence he gave up heroin and consumed “ice” instead. He said he was a welder at a construction site, working for 20 days on average and earning $15,000.00 per month. Two days prior to the offence, he purchased the drugs in question at $3,400.00. He said that the drugs in the two packets that the officers found from the edge of the frame of the bunk bed and his left sock came from the drugs in the larger bag found in the waist-bag. The Applicant explained that he divided the drugs into smaller portions because he wanted to limit his drug consumption. He took drugs twice a day, and he could finish each packet of drug in two takes. The drugs in question had been delivered to his home by a drug peddler. At the time of the offence, he was about to consume the drug contained in one of the packets. When the entrance door of the unit was being opened, he thought it was his girlfriend from whom he had been concealing his drug-taking habit, and so he hid the drug away by stuffing it into the sock that he was wearing on his left foot. The Applicant testified that he consumed “ice” with a consumption device made from a soda bottle.", "zh-HK": "申請人選擇自辯。他自稱吸食海洛英逾 20 年，但在案發前兩年戒掉了海洛英的毒癮，改為吸服「冰」。他指自己是一名地盤燒焊工人，每月工作的日數平均為 20 天，月薪為 $15,000.00。案發前兩天他以 $3,400.00 購入了涉案的毒品。他說關員在該單位內的碌架床床框邊及他左腳襪子裏搜出的兩小包毒品是他將藏在該腰包內的大包毒品分拆出來的。申請人解釋將毒品分拆成小包是因為要限制自己吸服的數量。他每日吸服毒品兩次，每一小包的毒品可供他吸服兩次，而涉案毒品是由毒品賣家送到他家裡的。案發時他正準備吸服其中一小包毒品，當有人開啟該單位的門時，他以為是他的女朋友，由於他一向都是瞞着她吸服毒品的，為免她發現毒品，就將該包毒品塞進自己的左腳襪子裏面。申請人供稱他是用一個波子汽水樽製成的吸食器來吸服「冰」的。" } }, { "doc_id": 61, "seg_id": 6, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 61, "seg_id": 7, "translation": { "en": "Mr Hung for the Applicant has put forward a number of grounds of appeal in respect of the present application. Among these grounds, the most significant one is, in our view, that pertaining to the direction given by Deputy Judge Poon to the jury on the question of majority verdict.", "zh-HK": "代表申請人的孔慶碩大律師就本申請提出多項上訴理由，但本庭認為最重要的一項是有關潘法官對陪審團作出的裁決比例的指引。" } }, { "doc_id": 61, "seg_id": 8, "translation": { "en": "Initial direction on majority verdict", "zh-HK": "有關裁決比例的首次指引" } }, { "doc_id": 61, "seg_id": 9, "translation": { "en": "In her direction to the jury, Deputy Judge Poon made it clear that they must first consider if the Applicant was guilty of trafficking in a dangerous drug and that, even if they did not consider him guilty of that offence, they still had to consider if the Applicant was guilty of possessing a dangerous drug.", "zh-HK": "潘法官在給予陪審團指引時清楚告訴他們首先是要考慮申請人有否干犯販運毒品罪，但就算他們認為他沒有干犯該罪行，他們仍須考慮申請人有否干犯管有毒品罪。" } }, { "doc_id": 61, "seg_id": 10, "translation": { "en": "In the course of directing the jury, Deputy Judge Poon twice explained the type of verdict that was acceptable to the Court. The first direction, which has been reproduced on page 10 of the Appeal Bundle, is in the following terms:", "zh-HK": "潘法官在引導陪審團時曾經分別兩次向陪審團述明怎麼樣的裁決才是法庭可以接受的裁決。有關的第一次指引可見於上訴文件卷第 10 頁：" } }, { "doc_id": 61, "seg_id": 11, "translation": { "en": "Members of the jury, whether you find [the defendant] guilty of trafficking in a dangerous drug or not, it is best for you to reach a unanimous verdict. A unanimous verdict is a verdict upon which the seven of you all agree, which means a 7:0 verdict, whether it be one of guilty or not guilty. If you are unable to reach a unanimous verdict after thorough deliberation, the Court is prepared to accept from you a majority verdict, i.e. a 6:1 or 5:2 verdict. Whether it be one of guilty or not guilty, a 6:1 or 5:2 verdict is acceptable, although of course it is better to have a 7:0 verdict. On the other hand, an even lower ratio of 4:3 is not acceptable to the Court because it is not a majority verdict. If this situation occurs, I shall further direct you as appropriate. If, upon careful consideration, you find whether by majority or unanimously that the defendant is not guilty of trafficking in a dangerous drug, then you must unanimously find him guilty of possessing a dangerous drug.", "zh-HK": "「各位陪審員，無論你哋就販運危險藥物罪嘅罪名係成立抑或罪名不成立，最好係有一個一致嘅裁決，一致就係你哋七個人都係一致嘅，即係七對零嘅裁決，無論係有罪好，抑或冇罪好，如果經過詳細嘅討論，你哋仍然唔能夠達致一個一致嘅裁決，法庭可以接受大比數嘅裁決，即係話一個六對一或者五對二嘅裁決，無論係有罪好抑或無罪好，可以接受六對一或者五對二，當然最好係七對零嘅裁決。但係假如再低嘅四對三，呢個並唔係法庭可以接受嘅裁決，因為呢個唔屬於大比數裁決，有咁嘅情形出現嘅話，我會喺適當嘅時候再畀指引你哋嘅。假如你哋經過詳細考慮，裁定無論係大比數抑或一致裁定被告販運危險藥物罪罪名不成立，你哋就必須要一致裁決佢管有危險藥物罪罪名成立。」" } }, { "doc_id": 61, "seg_id": 12, "translation": { "en": "Later on, Deputy Judge Poon distributed to the jurors a document which was intended to assist them in reaching a verdict. That document, which again contained statements about majority verdict, read as follows:", "zh-HK": "之後，潘法官向陪審團派發一份協助他們作出裁決的文件，該文件的內容同樣是敍述有關裁決的比例，其內容如下：" } }, { "doc_id": 61, "seg_id": 13, "translation": { "en": "\t香港特別行政區\tHONG KONG SPECIAL ADMINISTRATIVE REGION", "zh-HK": "「" } }, { "doc_id": 61, "seg_id": 14, "translation": { "en": "High Court Criminal Case No. 20 of 2007", "zh-HK": "高等法院刑事案件2007年第20號" } }, { "doc_id": 61, "seg_id": 15, "translation": { "en": "Verdict", "zh-HK": "裁決" } }, { "doc_id": 61, "seg_id": 16, "translation": { "en": "Jury can find the defendant guilty or not guilty. It can be a unanimous verdict or a majority verdict of 6:1 or 5:2. (The Court will not accept a verdict of 4:3.)", "zh-HK": "陪審團可裁定被告有罪，或裁定被告無罪。裁決可以是一致的決定，又或者是 6 對 1 或 5 對 2 的大多數裁決。（法庭是不會接納 4 對 3 的裁決）" } }, { "doc_id": 61, "seg_id": 17, "translation": { "en": "Direct the jury to return a verdict", "zh-HK": "引導陪審團宣告裁決" } }, { "doc_id": 61, "seg_id": 18, "translation": { "en": "就被告鍾志波被控販運危險藥物罪名，你們是否已作出裁決？\tQuestion 1:\tOn the count of trafficking in a dangerous drug against the defendant CHUNG Chi-bor, have you reached a verdict?", "zh-HK": "問題一" } }, { "doc_id": 61, "seg_id": 19, "translation": { "en": "Yes", "zh-HK": "☑是" } }, { "doc_id": 61, "seg_id": 20, "translation": { "en": "No", "zh-HK": "☑否" } }, { "doc_id": 61, "seg_id": 21, "translation": { "en": "你們作出的裁決是否一致？\tQuestion 2:\tIs your verdict unanimous?", "zh-HK": "問題二" } }, { "doc_id": 61, "seg_id": 22, "translation": { "en": "Yes (go to Question 4)", "zh-HK": "☑是（轉往問題四）" } }, { "doc_id": 61, "seg_id": 23, "translation": { "en": "No (go to Question 3)", "zh-HK": "☑否（轉往問題三）" } }, { "doc_id": 61, "seg_id": 24, "translation": { "en": "決定的比數如何？\tQuestion 3:\tBy what majority?", "zh-HK": "問題三" } }, { "doc_id": 61, "seg_id": 25, "translation": { "en": "6:1\t5:2", "zh-HK": "☑ 6 對 1 ☑ 5 對 2" } }, { "doc_id": 61, "seg_id": 26, "translation": { "en": "你們的裁決是什麼？\tQuestion 4:\tWhat is your verdict?", "zh-HK": "問題四" } }, { "doc_id": 61, "seg_id": 27, "translation": { "en": "Guilty", "zh-HK": "☑ 有罪" } }, { "doc_id": 61, "seg_id": 28, "translation": { "en": "Not Guilty (go to Question 5)", "zh-HK": "☑ 無罪（轉往問題五）" } }, { "doc_id": 61, "seg_id": 29, "translation": { "en": "(Where there is an alternative verdict)", "zh-HK": "（假如有轉以他罪的裁決）" } }, { "doc_id": 61, "seg_id": 30, "translation": { "en": "就被告鍾志波管有危險藥物一項罪名，法庭指示你們作出罪名成立的裁決，你們是否作出如指示的一致裁決？\tQuestion 5:\tOn the count of possessing a dangerous drug against the defendant CHUNG Chi-bor, the Court directed you to return a guilty verdict; do you return a unanimous verdict as directed?", "zh-HK": "問題五" } }, { "doc_id": 61, "seg_id": 31, "translation": { "en": "Yes / No", "zh-HK": "☑ 是 / ☑ 否」" } }, { "doc_id": 61, "seg_id": 32, "translation": { "en": "8.\tDeputy Judge Poon then went on to explain to the jury the contents of that document and revisited the question of majority verdict in the following terms:", "zh-HK": "接着，潘法官就該文件的內容向陪審團作出解釋及重複述說有關裁決比例一事：" } }, { "doc_id": 61, "seg_id": 33, "translation": { "en": "… let us look again at the beginning [of the document], which states that you can find the defendant guilty or maybe not guilty, but either way the verdict can be unanimous or 6:1 or 5:2. It should be made clear here that the Court will not accept a 4:3 verdict. Then it is about guilty or not guilty. If the offence being charged is established, and [the defendant is] guilty, then the matter comes to an end – pardon me, if guilty, then you will be asked if the verdict is unanimous or by what majority. On the other hand, as you can see from Question 4, if you find that the offence of trafficking in a dangerous drug is not established and that [the defendant is] not guilty, then go to Question 5. Question 5 concerns the offence of possessing a dangerous drug. In other words, if you find him not guilty, you must unanimously find him guilty of possessing a dangerous drug.", "zh-HK": "「.....睇番開頭嗰度，就係講你哋可以裁定被告有罪，亦都或者可以裁定佢冇罪，不過無論係有罪抑或冇罪，個裁決可以係一致嘅，又或者係六對一，或者五對二嘅，呢度講明，法庭係唔接納四對三。然後跟住就係有罪抑或冇罪，如果係被控嘅罪名成立，咁有罪，咁個問題就完結喇 -- 對唔住，有罪嘅話，咁就要問你哋個裁決是否一致，比數係點樣樣。如果係冇罪嘅話，問題四嗰度睇到，如果你係裁決佢販運危險藥物罪係罪名不成立，冇罪嘅話，就要轉往問題五，問題五就係管有危險藥物罪，即係話如果你裁決佢係無罪嘅話，你哋就要一致裁定佢管有危險藥物罪罪名成立。」" } }, { "doc_id": 61, "seg_id": 34, "translation": { "en": "9.\tDeputy Judge Poon concluded her directions to the jury at 11.15 a.m. that day. The jury then retired for deliberation.", "zh-HK": "潘法官在當日 11 時 15 分結束她對陪審團作出的指引。陪審團隨後退席商議。" } }, { "doc_id": 61, "seg_id": 35, "translation": { "en": "A jury verdict of 4:3", "zh-HK": "陪審團四對三的裁決" } }, { "doc_id": 61, "seg_id": 36, "translation": { "en": "10.\tThe jury returned to the Court at 3.07 p.m. that day. The audio transcript records the following exchanges among the Judicial Clerk, Deputy Judge Poon and the Foreman:", "zh-HK": "陪審團於當日下午 3 時 07 分返回法庭。以下是當時司法書記和潘法官與首席陪審員對話的錄音謄本內容：" } }, { "doc_id": 61, "seg_id": 37, "translation": { "en": "Judicial Clerk:\tForeman, please stand up. On the count of trafficking in a dangerous drug against the defendant CHUNG Chi-bor, have you reached a verdict?", "zh-HK": "「司法書記：首席審陪員，唔該請起立。就被告鍾志波被控販運危險罪藥物罪名，請問你哋是否已經作出裁決？" } }, { "doc_id": 61, "seg_id": 38, "translation": { "en": "Foreman:\tNo.", "zh-HK": "首席陪審員：否。" } }, { "doc_id": 61, "seg_id": 39, "translation": { "en": "Court:\t[Have you] reached a verdict?", "zh-HK": "官：是否作出裁決？" } }, { "doc_id": 61, "seg_id": 40, "translation": { "en": "Judicial Clerk:\tHave [you] reached a verdict?", "zh-HK": "司法書記：是否已經作出裁決呢？" } }, { "doc_id": 61, "seg_id": 41, "translation": { "en": "Court:\tQuestion 1.", "zh-HK": "官：問題一。" } }, { "doc_id": 61, "seg_id": 42, "translation": { "en": "Judicial Clerk:\tQuestion 1.", "zh-HK": "司法書記：問題一。" } }, { "doc_id": 61, "seg_id": 43, "translation": { "en": "Court:\tQuestion 1 first.", "zh-HK": "官：問題一先。" } }, { "doc_id": 61, "seg_id": 44, "translation": { "en": "Foreman:\tYes.", "zh-HK": "首席陪審員：是。" } }, { "doc_id": 61, "seg_id": 45, "translation": { "en": "Judicial Clerk:\tIs your verdict unanimous?", "zh-HK": "司法書記：請問你哋嘅裁決是否一致？" } }, { "doc_id": 61, "seg_id": 46, "translation": { "en": "Foreman:\tNo.", "zh-HK": "首席審陪員：否。" } }, { "doc_id": 61, "seg_id": 47, "translation": { "en": "Judicial Clerk:\tBy what majority?", "zh-HK": "司法書記：請問個裁決嘅比數係幾多呢？" } }, { "doc_id": 61, "seg_id": 48, "translation": { "en": "Foreman:\t4:3.", "zh-HK": "首席審陪員：四比三。" } }, { "doc_id": 61, "seg_id": 49, "translation": { "en": "Court:\tMembers of the jury, please retire first. There are a few questions that I need to discuss with counsel to see how the 4:3 [verdict] should be dealt with.", "zh-HK": "官：請你哋先返入去。我有少少問題要同律師商討咗，睇下而家四對三點樣處理先。」" } }, { "doc_id": 61, "seg_id": 50, "translation": { "en": "Further directions by Deputy Judge Poon", "zh-HK": "潘法官再次作出指引" } }, { "doc_id": 61, "seg_id": 51, "translation": { "en": "11.\tAfter the jury retired, Deputy Judge Poon discussed with counsel for both parties the direction on majority verdict. Subsequently, she directed the jury in the following terms:", "zh-HK": "潘法官在陪審團避席後與控辯雙方律師商議有關判決比數的指引，她之後向陪審團作出以下的指引：" } }, { "doc_id": 61, "seg_id": 52, "translation": { "en": "Court:\tMembers of the jury, as I told you this morning and indeed as printed on the sheet of paper, a 4:3 [verdict] is not a verdict that can be accepted by the Court because it is not a majority verdict. The Court is prepared to accept a verdict of 7:0, 6:1 or 5:2, whether it be one of guilty or not guilty. Therefore, at this stage you do not have to tell me this is your final verdict, because the Court cannot accept your 4:3 verdict at this stage. I will allow you a bit more time for you to discuss and see if you can reach a verdict acceptable to the Court, be it a majority or a unanimous verdict, within that extra time. If this cannot be done even after a certain period of time, I will give you further directions. But now I give you some more time and hope [you] can reach a verdict acceptable to the Court. The 4:3 verdict at this stage cannot yet be accepted by the Court. Please retire for further deliberation.", "zh-HK": "「官：各位陪審員，今朝早我同你哋講過喇，咁其實喺嗰張紙上面亦都印咗，四對三呢個唔屬於一個法庭可以接受嘅裁決嚟嘅，因為呢個唔係一個大比數嘅裁決。法庭可以接受嘅裁決係一個七對零、六對一或者係五對二，無論係有罪或者係冇罪都係，所以呢個階段你哋唔需要話畀我聽你哋最後個裁決係咁，因為呢個四對三你哋暫時呢個裁決法庭唔能夠接受，我會畀多少少時間你哋去商討，睇下喺多少少時間入面可唔可以達到一個法庭認為可以接受嘅，一係就大比數嘅裁決，一係就一致嘅裁決。如果經過某一段時間都唔 可以嘅話，我會畀其他嘅指示畀你哋嘅，但係我而家再畀時間你，希望能夠達到一個法庭可以接受嘅裁決，而家呢一個四對三唔係法庭可以接受嘅裁決住。請入番去再繼續商討。」" } }, { "doc_id": 61, "seg_id": 53, "translation": { "en": "Jury verdict", "zh-HK": "陪審團的裁決" } }, { "doc_id": 61, "seg_id": 54, "translation": { "en": "12.\tThe jury retired at 3.17 p.m. and the hearing resumed at 3.54 p.m. The relevant notes of proceedings read as follows:", "zh-HK": "陪審團於3時17分退席，案件於3時54分恢復聆訊。有關的聆訊記錄內容如下：" } }, { "doc_id": 61, "seg_id": 55, "translation": { "en": "Judicial Clerk:\tForeman, please stand up. On the count of trafficking in a dangerous drug against the defendant CHUNG Chi-bor, have you reached a verdict?", "zh-HK": "「司法書記：首席陪審員，請起立。就被告鍾志波被控販運危險藥物罪，你哋是否已經作出裁決?" } }, { "doc_id": 61, "seg_id": 56, "translation": { "en": "Foreman:\tYes.", "zh-HK": "首席陪審員：是。" } }, { "doc_id": 61, "seg_id": 57, "translation": { "en": "Judicial Clerk:\tIs your verdict unanimous?", "zh-HK": "司法書記：你哋嘅裁決是否一致?" } }, { "doc_id": 61, "seg_id": 58, "translation": { "en": "Foreman:\tNo.", "zh-HK": "首席陪審員：否。" } }, { "doc_id": 61, "seg_id": 59, "translation": { "en": "Judicial Clerk:\tBy what majority?", "zh-HK": "司法書記：比數係幾多呢?" } }, { "doc_id": 61, "seg_id": 60, "translation": { "en": "Foreman:\t5:2.", "zh-HK": "首席陪審員：五對二。" } }, { "doc_id": 61, "seg_id": 61, "translation": { "en": "Judicial Clerk:\tIs it a verdict of guilty or not guilty?", "zh-HK": "司法書記：請問個裁決係有罪定冇罪?" } }, { "doc_id": 61, "seg_id": 62, "translation": { "en": "Foreman:\tGuilty.", "zh-HK": "首席陪審員：有罪。" } }, { "doc_id": 61, "seg_id": 63, "translation": { "en": "Judicial Clerk:\tThank you.", "zh-HK": "司法書記：唔該。」" } }, { "doc_id": 61, "seg_id": 64, "translation": { "en": "Mr. Hung’s submissions", "zh-HK": "孔大律師的陳詞" } }, { "doc_id": 61, "seg_id": 65, "translation": { "en": "Mr. Hung submits that Deputy Judge Poon failed to indicate to the jury that they had to inform the Court if they were unable to reach a majority upon deliberation after further retirement. Instead, Deputy Judge Poon requested the jury to proceed with their deliberation and reiterated that the Court would further direct them should they be unable to reach a majority verdict. Mr. Hung contends that Deputy Judge Poon might in this way leave the jury with an impression that individual jurors had to yield to the majority jurors. Mr. Hung submits that the approach taken by Deputy Judge Poon might cause the jury to mistakenly think that they could never return a 4:3 verdict and were bound to reach a majority verdict which was acceptable to the Court.", "zh-HK": "孔大律師指潘法官沒有向陪審團說明，若他們在再次退席商議後仍未能達成大多數判決時，他們是必須讓法庭知道有關的結果。潘法官不但沒有這樣做，反而要求陪審團再繼續進行商議及重申若他們仍未能達成大多數判決，法庭屆時會再次指示他們。孔大律師指潘法官這個做法有可能給予陪審團一個錯覺，就是個別陪審員需要對其他多數的陪審員作出妥協。孔大律師指潘法官這個處理手法可能會導致陪審團誤以為他們無論怎樣都不可以達致四比三的決定，以及他們必須達成一個法庭可接受的大多數裁決。" } }, { "doc_id": 61, "seg_id": 66, "translation": { "en": "Discussion", "zh-HK": "本庭的意見" } }, { "doc_id": 61, "seg_id": 67, "translation": { "en": "Whenever a case is tried with a jury, the verdict returned by the jury must be either unanimous or by majority. A unanimous verdict by seven jurors is a verdict where they all agree that the defendant is guilty or otherwise, whereas a majority verdict is one where six jurors against one or five jurors against two agree that the accused is guilty or otherwise. Anything less than this majority verdict, i.e. 4:3, does not constitute a valid verdict.", "zh-HK": "凡是有陪審團參予審理的案件，陪審團所作出的裁決必須是一致或者是大多數的裁決。七名陪審員一致的裁決是指七名陪審員全體同意被告是有罪或是無罪的裁決，而大比數的裁決是指陪審團以六對一或者五對二來裁定被告人是有罪或是無罪的裁決。至於少於這個大比數的裁決，即四對三比數的裁決是不能構成一個有效的裁決。" } }, { "doc_id": 61, "seg_id": 68, "translation": { "en": "Where in the end the jury come up with a 4:3 verdict, this means they are unable to reach a verdict on the case, and hence the court may have to discharge the jury. However, as the Court of Final Appeal pointed out in Tam King Hon v. HKSAR [2006] 2 HKLRD 143, at the stage of a summing-up, when the jury have not started to deliberate, it is usually inappropriate to refer in the directions to jury to a discharge of the jury in the event of a 4:3 verdict. The Court of Final Appeal has also held that when a jury do reach a 4:3 verdict, it is open to the judge to give further directions to them.", "zh-HK": "若果陪審團最終所達致的裁決是一項四對三的裁決，這表示他們未能對案件作出裁決，法庭因此有可能要解散陪審團。但正如終審法院在 Tam King Hon v. HKSAR [2006] 2 HKLRD 143 (譚景漢[譯音])一案中指出，由於陪審團在法官作出結案引導的階段時仍未退席進行商議，故此一般來說若果法官在引導陪審團時說假如他們的裁決是四對三，他就會解散陪審團的話，這並不是一個適當的做法。終審法院指出當陪審團達成的裁決是四對三時，法官是可以再次對陪審團作出指引的。" } }, { "doc_id": 61, "seg_id": 69, "translation": { "en": "In her initial directions to jury, Deputy Judge Poon made it clear that the Court could not accept a 4:3 verdict and that she would give them further directions as appropriate. In our judgment, Deputy Judge Poon was correct in giving such directions.", "zh-HK": "潘法官在首次引導陪審團時對他們說明，若他們作出四對三的裁決，法庭是不能接納的，而她會在適當的時候再次向他們作出指引。本庭認為潘法官作出有關指引是正確的。" } }, { "doc_id": 61, "seg_id": 70, "translation": { "en": "A special feature of the present case is that the facts were relatively straightforward. Despite Deputy Judge Poon’s indication on three separate occasions (two oral directions and one written direction) that a 4:3 verdict was not acceptable to the Court, the jury returned a 4:3 verdict following deliberation which lasted approximately four hours. In this case, the Judge should, in our judgment, have tried to find out why the jury returned such a verdict: was it because they did not understand the Judge’s direction earlier on that a 4:3 verdict was not acceptable to the Court, or was it because they held diverse views on the verdict and were unable to reach a consensus despite the 4-hour deliberation? In our view, in the circumstances of the case, it would have been unsatisfactory for Deputy Judge Poon not to clarify the issue of a 4:3 verdict but instead simply to request the jury to continue their deliberation and reiterate that further directions would be given if they returned a 4:3 verdict again.", "zh-HK": "本案特別之處是案情比較簡單。雖然潘法官分別三次告訴陪審團（兩次口頭指引和一次書面指引）一個四對三的裁決不是法庭可以接受的裁決，但陪審團經過約四小時的商議後仍是達成四對三的裁決。在這種情況下，本庭認為法官首先要瞭解陪審團為何會作出有關的裁決，是否他們不明白法官之前對他們作出有關四對三裁決是法庭不可以接納的指引，抑或是他們雖然清楚瞭解有關指引，但在經過四小時的商議後仍對裁決存有分歧及無法達成共識。本庭認為潘法官若沒有就陪審團作出四對三的裁決作出澄清，而只要求陪審團繼續商議，並重申在他們再次作出四對三的裁決時會對他們作出進一步的指引，這在本案的情況下是有欠穩妥。" } }, { "doc_id": 61, "seg_id": 71, "translation": { "en": "It is true that a judge is entitled to encourage the jury to continue their deliberation in order to arrive at a legally valid verdict. However, when the jury clearly indicate that they have arrived at a 4:3 verdict, it is insufficient to simply ask them continue their deliberation and tell them that further directions will be given later. In our view, the judge should at the same time remind the jury that in the end they are entitled to have diverse views on the verdict and are not bound to arrive at a legally valid verdict. As this Court (Ma CJHC, Stock JA and Gall J) pointed out in HKSAR v. Chan Ka Man [2005] 1 HKC 162, there is no need for the judge to hide from the jury the fact that the law allows them to hold diverse views on the verdict in the end. Therefore, upon being told by the jury that they were returning a 4:3 verdict, Deputy Judge Poon should not simply have repeated, for a fourth time, the direction on majority verdict, thereby creating a risk of leaving the jury with the wrong impression that they could not possibly disagree on the verdict. As this Court pointed out in Chan Ka Man, where a jury returns a 4:3 verdict, the judge must make it clear to the jury that if they are still unable to reach a unanimous or majority verdict after further deliberation, they are not only entitled to hold diverse views on the verdict, but must clearly indicate to the judge that they are holding diverse views on the verdict. Furthermore, in Tam King Hon, the Court of Final Appeal explained that a jury must be free to consider and arrive at a verdict without being subjected to pressure by way of promise or threat or otherwise. The court must avoid giving the jury the misconception that it is incumbent upon them to express a consensus on a verdict that they do not genuinely hold simply because otherwise it will cause inconvenience, trouble or expense to the prosecution, the defendant, the victim or the general public.", "zh-HK": "誠然，法官是可以鼓勵陪審團繼續進行商議，以達致一個有法律效力的裁決，但當陪審團清楚向法官表明他們已作出四對三的裁決時，只要求他們繼續進行商議及表示稍後再對他們作出進一步指引並不足夠。本庭認為法官同時需要提醒陪審團他們最終還是可以持有分歧的意見及不達成一個有法律效力的裁決的。正如本庭（高等法院首席法官馬道立、上訴法庭法官司徒敬及原訟法庭法官高嘉樂）在 HKSAR v. Chan Ka Man [2005] 1 HKC 162 (陳家民[譯音])一案中指出，法官不需要隱瞞陪審團，法律容許他們最終對裁決持有分歧意見的。因此當陪審團告訴潘法官他們作出的裁決是四對三時，她不應該只是複述她早前已三次作出有關裁決比例的指引，從而產生令陪審團誤以為不能對裁決存有分歧的危險。正如本庭在陳家民一案指出，若陪審團作出四對三的裁決時，法官必須向陪審團清楚說明，若他們再經過詳細的討論後仍未能達致一個一致或大比數的裁決，他們不但有權就裁決持有分歧的意見，而且必須明確通知法庭他們對裁決存有分歧的意見。終審法院在譚景漢一案中更清楚說明，陪審團必須在沒有壓力的情況下自由思考及作出裁決，所謂的壓力包括來自許諾、恐嚇或其他因素。法庭因此應避免讓陪審團誤以為就算他們對裁決不是真心同意也必須表示同意，否則這會令控方、辯方、案件受害人或公眾不方便、厭煩或產生昂貴的費用。" } }, { "doc_id": 61, "seg_id": 72, "translation": { "en": "Mr. Leung, Senior Government Counsel for the Respondent, submits that, in telling the jury before they retired for the second time that “the Court cannot accept your 4:3 verdict at this stage … The 4:3 verdict at this stage cannot yet be accepted by the Court”, Deputy Judge Poon did not make the jury feel that they were bound to reach a verdict acceptable to the Court. With respect, we do not agree. As the Judge had told the jury earlier on that she would direct them further if they returned a 4:3 verdict, if she simply repeated this point at that stage, the jury might mistakenly think that they were expected to arrive at a verdict acceptable to the Court.", "zh-HK": "代表答辯人的高級政府師梁卓然大律師指，潘法官在陪審團第二次退席之前對他們說：「呢個四對三，你哋暫時呢個判決法庭唔能夠接受....而家呢一個四對三唔係法庭可以接受嘅裁決住」，從這番話可見潘法官並沒有令陪審團感覺到他們是必須達成一個法庭可接受的裁決。本庭不同意梁大律師這個看法，因為潘法官在早前已經說過若陪審團達成四對三的裁決，她就會給予他們進一步的指引，所以若潘法官在這個階段還只是一再重複這一點，陪審團是很有可能誤會法庭期望他們達致一個法庭可接受的裁決。" } }, { "doc_id": 61, "seg_id": 73, "translation": { "en": "It is clear from the 5:2 verdict the jury returned in the end that they held diverse views on whether the Applicant had trafficked in a dangerous drug. This being the case, we must not overlook Deputy Judge Poon’s failure to make it clear in her further directions that it was open to the jury to disagree on the verdict, as a result of which the jury might have mistakenly thought that they had no alternative but to arrive at a verdict acceptable to the Court.", "zh-HK": "本案的陪審團最終作出五對二的裁決，這清楚顯示陪審團對申請人有否販運毒品一事存有不同的意見。在這情況下本庭不能忽視潘法官在再次給予陪審團指引時沒有清楚向他們表明他們最終是可以對裁決持有不同的意見，致陪審團可能誤以為他們必須達致一個法庭可以接受的裁決的做法。" } }, { "doc_id": 61, "seg_id": 74, "translation": { "en": "For the above reasons, the Applicant’s conviction is in our view unsafe.", "zh-HK": "基於這個原因，本庭認為定罪的裁決是不穩妥的。" } }, { "doc_id": 61, "seg_id": 75, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 61, "seg_id": 76, "translation": { "en": "We allow the Applicant’s application and, treating it as the appeal, allow the appeal and quash the conviction.", "zh-HK": "本庭批准申請，視申請為正式上訴及批准上訴及撤銷定罪。" } }, { "doc_id": 61, "seg_id": 77, "translation": { "en": "Re-trial", "zh-HK": "重審" } }, { "doc_id": 61, "seg_id": 78, "translation": { "en": "The present appeal is allowed on the sole basis of the proper approach that a court should take in giving the relevant directions to the jury. This has nothing to do the strength or otherwise of the prosecution case. We therefore consider there should be a re-trial and make an order for re-trial accordingly.", "zh-HK": "由於這次上訴得直的唯一原因是有關法庭應該如何給予陪審團適當的指引，而不是涉及控方案情的強弱，故此本庭認為案件需要重審及作出重審的命令。" } }, { "doc_id": 61, "seg_id": 79, "translation": { "en": "：由律政司高級政府律師梁卓然代表。\tMr. David Leung, Senior Government Counsel, for the Respondent.", "zh-HK": "答辯人" } }, { "doc_id": 61, "seg_id": 80, "translation": { "en": "Mr. Andy Hung, instructed by the Legal Aid Department, for the Applicant (re: conviction).", "zh-HK": "申請人（定罪）：由法律援助署委派孔慶碩大律師代表。" } }, { "doc_id": 61, "seg_id": 81, "translation": { "en": "The Applicant in person (re: sentence).", "zh-HK": "申請人（刑期）：無律師代表，親自出席。" } }, { "doc_id": 62, "seg_id": 1, "translation": { "en": "Hon Chu J (handing down the reasons of judgment of the Court):", "zh-HK": "高等法院原訟法庭法官朱芬齡頒發上訴法庭判案理由書 ：" } }, { "doc_id": 62, "seg_id": 2, "translation": { "en": "The two Applicants were jointly charged with one count of “Causing grievous bodily harm with intent” and one count of “Wounding with intent”, both contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212, Laws of Hong Kong. After trial, District Judge Mary Yuen convicted them of both charges on 14 April 2010 and sentenced the 1st Applicant to Training Centre and the 2nd Applicant to three years’ imprisonment. They were aggrieved by the conviction and applied for leave to appeal. Having heard the submissions by both the prosecution and the defense, this Court allows the application by the 1st Applicant. Treating the leave application as the appeal, this Court quashes both the conviction and sentence of the 1st Applicant. In respect of the leave application by the 2nd Applicant, it is dismissed by this Court. The reasons for the judgment are given below.", "zh-HK": "兩名申請人同被控一項「有意圖而導致身體受嚴重傷害」罪，及一項「有意圖而傷人」罪，兩者都是違反香港法例第 212章《侵害人身罪條例》第 17(a)條。經審訊後，區域法院法官源‍麗‍華在2010 年4 月14 日裁決兩人兩項罪名均成立，並分別判令把第‍一申請人送往教導所羈押及第‍二申請人監禁三年。兩名申請人不服定罪裁決，提出上訴許可申請。本庭經聆聽控辯雙方的陳詞後，批准第‍一申請人的申請，並視申請為上訴，批准上訴，撤銷定罪的裁決和判刑。本庭同時拒絕第‍二申請人的許可申請。有關的判案理由，本庭現給予說明。" } }, { "doc_id": 62, "seg_id": 3, "translation": { "en": "Particulars of the charges", "zh-HK": "控罪內容" } }, { "doc_id": 62, "seg_id": 4, "translation": { "en": "The particulars of the first charge against the two applicants are that on the 22nd day of February, 2009, on Ground floor, near Fung Yam House, On Yam Estate, Kwai Chung, together with other persons unknown, unlawfully and maliciously caused grievous bodily harm to Mok Wai Tung, with intent to do him grievous bodily harm. The particulars of the second charge are that on the same day at the same place, the two applicants together with other persons unknown, unlawfully and maliciously wounded Wong Chi Cheung with intent to do him grievous bodily harm.", "zh-HK": "兩名申請人所面對的第‍一項控罪指他們在2009 年2 月22 日在葵涌安蔭邨近豐蔭樓地下外，連同其他身份不詳人士，意圖使莫‍衛‍東身體受嚴重傷害而非法及惡意導致他的身體受嚴重傷害。第‍二項控罪指兩名申請人在同日同地點，連同其他身份不詳人士，意圖使黃‍智‍祥身體受嚴重傷害而非法及惡意傷害他。" } }, { "doc_id": 62, "seg_id": 5, "translation": { "en": "Facts of the case", "zh-HK": "案情" } }, { "doc_id": 62, "seg_id": 6, "translation": { "en": "According to the prosecution evidence, the two victims Mok Wai Tung (PW1) and Wong Chi Cheung (PW2) were chatting with two friends (i.e. altogether four persons) at a chess table in a park off Chak Yam House, On Yam Estate in Kwai Chung at 12:10 a.m. on 22 February 2009. Suddenly a group of 10 odd males arriving in three taxis rushed towards the two victims and their friends. The two friends managed to escape but the two victims were caught up and attacked by those males. PW2 said that he was pinned down on the ground by one male and was kicked and fisted by three to four other males. He was also hit hard on his head by iron pipes. After the assailants left, he saw PW1 lying on the ground not too far away from him and bleeding in his head.", "zh-HK": "控方的證據顯示在2009 年2 月22 日凌晨12 時10 分，兩名受害人莫‍衛‍東(PW1)和黃‍智‍祥(PW2)連同兩名朋友共四人在葵涌安蔭邨澤蔭樓外的棋檯休憩處閒談。突然有10 多名男人分別乘3 部的士而來，並衝向兩名受害人和他們的朋友。他們兩名朋友成功逃脫，但兩名受害人則被追上和遭受襲擊。據PW2說，他被一名男子按在地上，有3 至 4 名男子向他拳打腳踢 ，亦有人以鐵管猛力打他的頭部。當襲擊者離去後，他看到PW1躺在離他不遠處的地上，頭部正在流血。" } }, { "doc_id": 62, "seg_id": 7, "translation": { "en": "The two victims were sent to hospital for treatment. The doctor diagnosed that PW1 suffered serious injuries to the head, bleeding and swelling at the scalp of the top right skull, multiple bruises at the scalp near the left temple and fracture at the left orbital bone. He was hospitalized at the Intensive Care Unit for a day before he was transferred to the Neurosurgical Unit for treatment. He was discharged on 28 February. As for PW2, the doctor diagnosed that he suffered 4 lacerations at the rear of the head, partial tenderness at the left hand and fracture at the 4th metacarpal bone of the left hand. Twenty stitches were applied to his lacerations and his fractured left hand had to be kept in plaster cast. PW2 was discharged on 23 February.", "zh-HK": "兩名受害人被送到醫院接受治療。醫生診斷PW1的傷勢是：頭部嚴重受傷，右顱骨頂部頭皮血腫，左顳位置頭皮有多處瘀傷，以及左眼眶骨骨折。他在深切治療部留院一天後轉到腦神經外科接受治療，在2 月28 日出院。至於PW2，醫生診斷他的傷勢是：頭部後方有4 處裂傷，左手局部位置觸痛及左手第‍四節掌骨骨折。他裂傷的傷口須縫合20 針，而左手骨折以石膏板固定位置。PW2在2 月23 日出院。" } }, { "doc_id": 62, "seg_id": 8, "translation": { "en": "In the morning on 25 February 2009, the police arrested the 1st and the 2nd Applicants for “Causing grievous bodily harm with intent” and “theft” respectively. When the 1st Applicant was arrested, his mother was present. Under caution, the 1st Applicant said that he understood and had nothing to say. After he was taken to the police station, the police took a written record of interview from him. According to the record of interview, the 1st Applicant admitted that at the early hours on 22 February, he together with the 2nd Applicant and another 6 persons attacked a group of about 10 men outside the Shopping Arcade in On Yam Estate. Those men tried to escape immediately, but one male in red shirt could not run off and was kicked and fisted by the two applicants and their companions. Shortly afterwards, ten odd men arrived with some holding iron pipes in their hands. They had a fight with two applicants and his companions. They were no match for the applicants’ group and the 2nd Applicant and his companions snatched two iron pipes from them. As they were trying to escape, one man in black shirt was caught by the 1st Applicant and his companions, then the 2nd Applicant and his companions hit him repeatedly with iron pipes.", "zh-HK": "警方在2009 年2 月25 日早上以嚴重傷人罪和盜竊罪分別拘捕第‍一和第‍二申請人 。第‍一申請人被捕時 ，其母親在場 。在警誡下 ，第‍一申請人回答明白和沒有話要說。他被帶到警署後，向警方提供了一份會面記錄。根據該會面記錄，第‍一申請人承認在2 月22 日凌晨時間與第‍二申請人及另外6 人，在安蔭邨商場外襲擊一群為數約10 人的男子。那些男子立時逃跑，但其中一名穿紅色上衣的男子走避不及，被兩名申請人和同伴拳打腳踢。不久，有10 多名男子來到，當中有人手持鐵管，他們與兩名申請人及其同伴對打，但因不敵而被第‍二申請人和同伴奪去兩支鐵管。在他們逃跑時，其中一名穿黑色上衣的男子被第‍一申請人和同伴捉住，第‍二申請人和同伴以鐵管打他的頭多次。" } }, { "doc_id": 62, "seg_id": 9, "translation": { "en": "When the 2nd Applicant was arrested and cautioned, he indicated that he understood. Later that day the police took a written record of interview from him inside the police station. He made no confession in the record of interview. In the afternoon on the following day, he had an interview with the police again. During the interview, the police showed him aforesaid record of interview made by the 1st Applicant and the record of interview made by another arrested person. Then the 2nd Applicant indicated that he got something to say. After he was reminded of his caution, the 2nd Applicant made certain confessions. The 2nd Applicant said that he together with the 1st Applicant and another six companions dashed towards and attacked a group of about 10 men who were near the chess table in On Yam Estate. He only kicked a man in red shirt a few times. Then the men who had run off returned with iron pipes and the two parties had a fight. During the fight, his companions snatched the iron pipes from the other party and assaulted one man in black shirt in that group with the iron pipes. The 2nd Applicant said he only kicked that man a few times with his feet.", "zh-HK": "至於第‍二申請人，他在被拘捕時，經警誡後表示明白。他在同日較後時間在警署內向警方提供一份會面記錄，當中沒有作出任何招認。翌日下午他再度與警方會面，期間警方向他展示第‍一申請人上文提及的會面記錄及另一名被捕人士的會面記錄。之後第‍二申請人表示有話要說。在被提醒警誡後，第‍二申請人作出了一些招認。第‍二申請人說他連同第‍一申請人和另外6 名同伴在安蔭邨棋檯附近向一群為數約10 多名的男子衝去和追打，而他只是用腳踢了一名身穿紅色上衣的男子幾腳。後來逃去的男子帶同鐵管折返，雙方發生打鬥，期間他的同伴搶去對方的鐵管，並以此毆打對方其中一名穿黑色上衣的男子。第‍二申請人說他只是用腳踢了這名男子幾腳。" } }, { "doc_id": 62, "seg_id": 10, "translation": { "en": "Findings by the trial judge", "zh-HK": "原審法官的裁決" } }, { "doc_id": 62, "seg_id": 11, "translation": { "en": "At the trial, the prosecution and the defense had no dispute that PW1 and PW2 were attacked and suffered the aforesaid injuries. The disputes between the prosecution and the defense were mainly about whether the 1st and 2nd Applicants took part in attacking the two victims. In this regard, the prosecution relied solely on the records of interview given by the two applicants.", "zh-HK": "在審訊時，抗辯雙方對於PW1和PW2受襲一事和他們因此而蒙受上文提及的傷害並無爭議。控辯雙方主要的爭議在於第‍一和第‍二申請人是否有參予襲擊兩名受害人。就此點而言，控方唯一依賴的證據是兩名申請人的會面記錄。" } }, { "doc_id": 62, "seg_id": 12, "translation": { "en": "The 1st and 2nd Applicants objected to the Court’s admission of their records of interview as evidence. They respectively alleged that the police intimidated and used violence on them, and that the content of the records of interview did not come from them. Moreover, the 1st Applicant mentioned in paragraph (3) of his Grounds of Objection that when he was in the detention room, he made a request to a patrolling male police officer in uniform that he wanted to phone his family for legal representation. However his request was turned down because the officer-in-charge had given instruction that the case was serious and precaution must be taken against the 1st Applicant tipping off any outsiders.", "zh-HK": "第‍一和第‍二申請人均反對法庭採納他們的會面記錄成為證據。他們分別提出曾遭受警務人員施以威嚇和暴力，以及會面記錄的內容並非由他們提供的。此外，第‍一申請人的書面反對理由的第 (3) 段提出，他在臨時羈留室時曾向一名巡視的軍裝男警員要求致電家人請律師，但被拒絕，原因是案件主管指示案情嚴重，恐防第‍一申請人通風報信。" } }, { "doc_id": 62, "seg_id": 13, "translation": { "en": "To deal with the issue as to whether the records of interviews by the two applicants should be admitted as evidence, the trial judge adopted the alternative procedure. The two applicants elected to give evidence in respect of the special issue. However in the trial of the general issue, they elected not to give evidence.", "zh-HK": "原審法官就兩名申請人的會面記錄應否被接納為證據的爭議，採用了交替程序。兩名申請人就此特別議題均選擇作供。就審訊的一般議題，他們則選擇不作供。" } }, { "doc_id": 62, "seg_id": 14, "translation": { "en": "The trial judge was satisfied that the records of interview were taken from the two applicants voluntarily, and that there was no unfairness in the case that justified the exercise of her discretion to exclude the confessions made by the two applicants. In respect of paragraph (3) of the 1st Applicant’s Grounds of Objection, the trial judge said the following in her Reasons of Findings in the Alternative Procedure:", "zh-HK": "原審法官信納有關的會面記錄是兩名申請人在自願的情況下作出，而案中亦沒有不公平之處以致法庭須行使酌情權摒除兩名申請人所作出的招認。有關第‍一申請人書面反對理由的第 (3) 段，原審法官在有關交替程序的裁決理由內有以下說明：" } }, { "doc_id": 62, "seg_id": 15, "translation": { "en": "D1更指當他在警署內收到羈留人士通告後獲知他有權聘用律師，他向當值軍裝警員要求致電家人請律師。軍裝警員其後向他指出須慎防D1通風報訊，不讓D1致電家人。D1相信由於他不能致電家人，他應也不能聘用律師。\t‘4. D1 even said that inside the police station, he was given a “Notice to Detained Persons” that informed him of his rights to hire a lawyer. He made a request to the uniformed officer on duty to phone his family for a lawyer. The uniformed office then said precaution must be taken against D1 tipping off outsiders, so D1 was not allowed to phone his family. D1 believed that as he was not allowed to phone his family, he probably would not be allowed to hire a lawyer.", "zh-HK": "「4." } }, { "doc_id": 62, "seg_id": 16, "translation": { "en": "本席接納Pannu督察沒有特地指令下屬收去被告電話或發出『no outside contact』的指令。值日官指出在他巡視羈留室時[D1]並無要求聘用律師。本席接納[D1]有可能要求致電家人，他並沒有要求聘用律師，警方並無剝奪[D1]聘用律師的權利。」\t31.\tI am satisfied that Inspector Pannu neither gave an order to his subordinates for the special purpose of taking away the defendants’ mobile phones nor issued a “no outside contact” order. The duty officer said that when he patrolled to the detention room, [D1] did not make any request for hiring a lawyer. I accept that [D1] could have requested to make a phone call to family members, but he did not request to hire a lawyer. The police did not deprive [D1] of his rights to hire a lawyer.’", "zh-HK": "31." } }, { "doc_id": 62, "seg_id": 17, "translation": { "en": "The trial judge was also satisfied that the prosecution had proved the two charges beyond reasonable doubt. She accordingly convicted the two applicants of the charges.", "zh-HK": "原審法官亦滿意控方已在毫無合理疑點下證實兩項控罪，因此裁定兩名申請人的罪名成立。" } }, { "doc_id": 62, "seg_id": 18, "translation": { "en": "Appeal application by the 1st Applicant", "zh-HK": "第一申請人的上訴申請" } }, { "doc_id": 62, "seg_id": 19, "translation": { "en": "The 1st Applicant’s application for leave to appeal consists of two parts. The first part is to appeal against the trial judge’s decision on the special issue regarding whether his record of interview should be admitted as evidence, and the second part is against the conviction of the charges.", "zh-HK": "第‍一申請人的上訴許可申請分兩部份，分別針對原審法官有關其會面記錄可被採納為證據的特別議題的裁決，以及有關控罪的定罪裁定。" } }, { "doc_id": 62, "seg_id": 20, "translation": { "en": "In respect of the decision on the special issue, the 1st Applicant put forth three grounds of appeal. The main thrust of his argument was that his request to call his family to hire a lawyer was refused. Firstly, the 1st Applicant alleged that the prosecution called neither the duty officer who was inside the report room at the material time nor the officer who patrolled to the detention room. Therefore he argued that the prosecution failed to prove beyond reasonable doubt that the 1st Applicant’s record of interview was not taken after his request to phone his family for legal representation was denied. Secondly, the 1st Applicant alleged that after he had given evidence on the special issue, the trial judge erroneously allowed the prosecution to call the duty officer to rebut his evidence on the request to make a phone call to his family. The 1st Applicant’s third ground of appeal was that the trial judge made mistakes in the way she understood and evaluated the evidence.", "zh-HK": "就特別議題的裁定，第‍一申請人共提出3 項申請理由，主要環繞他要求致電家人請律師被拒這一點。首先，第‍一申請人指控方沒有傳召所有在相關時候在報案室當值和負責巡視羈留室的警務人員，故此控方未能在沒有合理疑點的情況下，顯示第‍一申請人不是在被拒絕致電家人請律師的情況下作出會面記錄。其次，第‍一申請人指原審法官在他就特別議題作供完畢後，錯誤地批准控方傳召值日官以反駁他指曾要求致電家人的證言。第‍一申請人的第‍三項理由是原審法官在理解和處理證據方面出錯。" } }, { "doc_id": 62, "seg_id": 21, "translation": { "en": "The 1st Applicant alleged that his record of interview was taken from him involuntarily and unfairly, and one of the reasons for this allegation was that when he was detained, he was not allowed to call his family for legal representation because the officer-in-charge sought to prevent him from tipping off any outsiders. The prosecution called Inspector Pannu (PW5), the officer-in-charge, who agreed that before the action of arrest, he had briefed his team of officers to seize the mobile phones of arrested persons in order to prevent them from contacting outsiders. PW5 also agreed that he gave an order to the duty officer that the arrested persons should have “no outside contact”.", "zh-HK": "第‍一申請人指其會面記錄是在不自願和不公平情況下作出的其中一項理由，是他被羈留時曾要求致電家人聘請律師但被拒絕，原因是案件主管恐防他通風報訊。控方傳召了案件主管Inspector Pannu(PW5)。他同意在執行拘捕行動前曾訓示隊員要檢去被捕人士的手提電話，以防止他們聯絡其他人。PW5亦同意他向值日官下達了指令，不許被捕者與外界接觸(no outside contact)。" } }, { "doc_id": 62, "seg_id": 22, "translation": { "en": "When the trial judge gave her Reasons of Findings in the Alternative Procedure (paragraph 31), she said that PW5 neither ordered his subordinates to take away the applicant’s phone nor made any “no outside contact” order. Her decision in this regard was not in accordance with the evidence of the case.", "zh-HK": "就這方面，原審法官在有關交替程序的裁決理由(第 31 段)中指PW5沒有指令下屬取去申請人的電話或發出「no outside contact」的指令，這項裁斷與審訊的證據並不相符。" } }, { "doc_id": 62, "seg_id": 23, "translation": { "en": "After the 1st Applicant gave evidence on the special issue, the prosecution called the duty officer (PW7) of the report room to rebut the 1st Applicant’s allegation that he made a request to his family for lawyers but it was denied. PW7 confirmed that if the officer-in-charge had given such an order, the officer(s) on duty would carry it out accordingly and would neither allow the suspects to have any outside contact nor allow them to call their families. PW7 said that he personally had not received the 1st Applicant’s request to call his family, nor had he received such a request through other officers. Moreover, he saw no record of such a request in the computer record. However PW7 agreed that, including him, there could have been altogether four police officers who had patrolled to the detention room. Some officers could have received the request from the 1st Applicant to call his family during the patrol, but did not notify him or make any record in the computer record.", "zh-HK": "控方在第‍一申請人就特別議題作供完畢，亦傳召了報案室的值日官(PW7)，以反駁第‍一申請人指他要求致電家人請律師但被拒的說法。PW7確認若果案件主管有此指令，值日警員會確實執行，不允許疑犯接觸外界，亦不會批准他們致電家人。PW7表示他本人沒有直接或透過其他警務人員收過第‍一申請人要求致電家人的請求，他從電腦記錄上亦沒有看到有這樣的要求。然而，PW7同意連同他在內，當天一共有4 名警務人員可能巡視羈留室，而有可能有警員在巡視時收到第‍一申請人關於致電家人的要求，但沒有通知他和記錄在電腦檔案內。" } }, { "doc_id": 62, "seg_id": 24, "translation": { "en": "In the Reasons of Findings in the Alternative Procedure (paragraph 31), the trial judge held that the police did not deprive the 1st Applicant of the right to hire a lawyer because the 1st Applicant might have requested to call his family, but he did not request to hire a lawyer. Mr. Jim submitted to this Court that having found that the 1st Applicant might have requested to phone his family, how could the trial judge be certain that he did not request for a lawyer. We agree that it is not easy to understand the findings by the trial judge in this regard, especially when the 1st Applicant testified that he “had made a request to the uniformed police officer on duty to make a phone call to his family for legal representation” (See paragraph 4 of the Reasons of Findings in the Alternative Procedure). The trial judge did not explain why she was satisfied that the 1st Applicant’s request was only to phone his family and did not involve the hiring of a lawyer. We are of the view that the trial judge’s finding that the 1st Applicant did not request for legal representation was unsafe.", "zh-HK": "原審法官在交替程序的裁決理由(第 31 段)，裁斷第‍一申請人有可能要求致電家人，但沒有要求聘請律師，故此警方並沒有剝奪他聘請律師的權利。詹‍大律師向本庭陳詞，指出原審法官既接納第‍一申請人有可能要求致電家人，何以卻認定他沒有要求聘請律師。本庭同意原審法官這方面的裁斷不容易理解 ，尤其是鑑於第一申請人的證供是他曾「向當值軍裝警員要求致電家人請律師」(交替程序裁決理由第4 段)。原審法官並沒有說明她何以祇接納第一申請人的要求限於致電家人，不涉及聘用律師。本庭認為原審法官指第一申請人沒有要求聘用律師的裁斷有欠穩妥。" } }, { "doc_id": 62, "seg_id": 25, "translation": { "en": "Given that the 1st Applicant’s request to call his family for legal representation was turned down, the court should consider whether his record of interview should be excluded on the basis that it was given under unfair circumstances and that it would be unfair to the 1st Applicant to admit the record of interview as evidence in the trial.", "zh-HK": "在第一申請人要求致電家人請律師被拒的情況下，法庭需要考慮的是他的會面記錄是否在不公平的情況下取得，以及在審訊時接納該份會面記錄作為證據是否對第一申請人造成不公平，以致應該把會面記錄摒除。" } }, { "doc_id": 62, "seg_id": 26, "translation": { "en": "Article 35 of the Basic Law provides that Hong Kong residents shall have the right to confidential legal advice and choice of lawyers for timely protection of their lawful rights and interests. Similarly under the common law principles, a suspect under arrest shall also have the right to legal representation and advice. This is an important right to have.", "zh-HK": "《基本法》第35 條規定，香港居民有權得到秘密法律諮詢和選擇律師及時保護自己的合法權益。同樣，在普通法的原則下，被捕的疑犯是有權獲得律師的協助和獲取法律諮詢。這是一項重要的權利。" } }, { "doc_id": 62, "seg_id": 27, "translation": { "en": "In this case, when the 1st Applicant was arrested, the police officer administered verbal caution on him. He clearly replied that he understood and had nothing to say. When he was taken to the police station, he received a Notice to Detained Persons informing him of his right to legal representation. He made a request to call his family for legal representation but it was refused. Then he was interviewed by the police and he made certain confessions which became the only incriminating evidence against him in the case. We are of the view that under such circumstances, the record of interview taken from the 1st Applicant could have been taken unfairly, and that it might also be unfair to the 1st Applicant to admit such evidence as evidence in the trial against him. Therefore, the errors by the trial judge in the understanding of the evidence and finding as to whether the 1st Applicant had been deprived of his right to legal representation had, in fact, a significant impact on the safety of her decision that the record of interview was made voluntarily and fairly. Mr. Lui for the prosecution also indicated that they could not be confident that if the trial judge had correctly held that the 1st Applicant had indeed made a request for legal representation but it was refused, she would have made the same decision to admit the record of interview as evidence.", "zh-HK": "在本案中，第一申請人被拘捕時，在警員向他施行口頭警誡時，明確回應他明白和沒有話要說。在被帶到警署時，他收到羈留人士通知，知悉有權得到律師的協助。他要求致電家人請律師但被拒絕。他之後與警方會面，作出若干招認，這些招認是案中唯一可指證他的證據。本庭認為在此情況下，第一申請人的會面記錄有可能是在不公平的情況下錄取，而把它採納作為對第一申請人的證據亦有可能對第一申請人的審訊造成不公平。因此，原審法官在理解相關證供，以及裁斷第一申請人聘請律師的權利是否遭剝奪時的錯誤，實嚴重影響她對會面記錄是否在自願和公平的情況下作出的裁決的穩妥性。代表控方的雷‍大律師亦表示控方不能有信心地說，若果原審法官正確裁斷第一申請人曾要求聘請律師但被拒絕的話，她就是否採納會面記錄作證據的決定將會是一樣。" } }, { "doc_id": 62, "seg_id": 28, "translation": { "en": "In view of the above reasons, we consider that the trial judge’s decision to admit the 1st Applicant’s record of interview is unsafe. Given that the record of interview was the only incriminating evidence against the 1st Applicant in the trial, the decision to convict the 1st Applicant is therefore unsafe.", "zh-HK": "基於上述理由，本庭認為原審法官採納第一申請人的會面記錄的裁決有欠穩妥。有鑑於會面記錄是案中唯一指證第一申請人的證據，第一申請人的定罪裁決遂有欠穩妥。" } }, { "doc_id": 62, "seg_id": 29, "translation": { "en": "It then follows that we need not deal with the other grounds of the application put forth by the 1st Applicant.", "zh-HK": "在此情況下，本庭無須處理第一申請人所提出的其他申請理由。" } }, { "doc_id": 62, "seg_id": 30, "translation": { "en": "Appeal application by the 2nd Applicant", "zh-HK": "第二申請人的上訴申請" } }, { "doc_id": 62, "seg_id": 31, "translation": { "en": "The 2nd Applicant put forward three grounds to support his application for leave to appeal.", "zh-HK": "第二申請人提出三項理由支持其上訴許可申請。" } }, { "doc_id": 62, "seg_id": 32, "translation": { "en": "The first ground by the 2nd Applicant was in relation to the decision by the trial judge to admit his record of interview as evidence of the case on the basis that it was given voluntarily. The trial judge said in her Reasons of Findings that the two applicants’ allegations against the police were incredible, and in respect of their allegations of having been severely beaten by the police, the trial judge held that “they suffered no physical injuries and made no complaint”. The 2nd Applicant argued that the trial judge was wrong when she said that he “had made no complaint” because at the first hearing before the Tsuen Wan Magistrates’ Courts, he had already made a complaint against the police for coercing him to sign the records of interview by force. The 2nd Applicant also submitted that the trial judge erred when she did not consider whether he had exercised the right to remain silent before he made the complaint to the magistrate.", "zh-HK": "第二申請人的首項理由關乎原審法官接納其會面記錄為他自願提供的，及把它們採納成為證據的裁決。原審法官在裁決理由書中指出兩名申請人對警方的指控不可信；而有關他們遭警方毒打這一點，原審法官認為「他們並無體傷，亦無投訴」。第二申請人認為原審法官說他「亦無投訴」是不對的，因為他在荃灣裁判法院首次提訊時，已向法庭投訴警員以暴力強逼他簽署會面記錄。第二申請人亦指原審法官錯誤地沒有考慮，他在向裁判官作出投訴之前的期間內是否行使保持緘默的權力。" } }, { "doc_id": 62, "seg_id": 33, "translation": { "en": "In respect of the two applicants’ complaints to the magistrate at the first hearing that the police had coerced them to sign the records of interview by force, the trial judge expressly dealt with this in her Reasons of Findings in the Alternative Procedure. She had obviously taken this point into consideration. As pointed out by the prosecution, the matter was first heard on 18 September 2009. In other words, it was not until seven months after the 2nd Applicant had signed the records of interview that he lodged the first complaint that the police had used force on him. We are of the view that reading from the wordings and logic of the Reasons of Findings by the trial judge, the phrase “had made no complaint” means no immediate complaint was made by the two applicants, and does not suggest that they never complained.", "zh-HK": "就兩名申請人在案件首次提訊時，曾向裁判官投訴警方以暴力強逼他們簽署會面記錄這點，原審法官在交替程序的裁決理由書有明確提及。顯然，她有考慮此點。誠如控方指出，案件是在2009 年9 月18 日首次提訊。換而言之，第二申請人是在簽署會面記錄過後近7 個月才首次投訴被警方施以暴力。本庭認為觀乎原審法官的裁決理由書的行文理路，「亦無投訴」是指兩名申請人沒有即時作出投訴，而不是指他們從沒有投訴。" } }, { "doc_id": 62, "seg_id": 34, "translation": { "en": "The 2nd Applicant also said that he was exercising his right of silence when he did not make any complaint before the first hearing, and that no adverse inference should be drawn against him. We do not accept his argument. We are of the view that when the trial judge considered whether the 2nd Applicant’s allegation was credible, she was entitled to take into account factors in relation to why the 2nd Applicant did not make immediate complaint so as to decide whether the allegation was a recent allegation or fabrication. Moreover, when the trial judge held that the 2nd Applicant’s allegation was not credible, she also took into account other relevant circumstances, including that although the 2nd Applicant alleged that the police was violent towards him on the day of arrest and that they invented the contents of the record of interview, there was no confession in the record of interview made on that day. On the contrary, the 2nd Applicant said that before he signed the 2nd record of interview in which his confession was contained, the police did not use violence on him. We are of the view that the trial judge had correctly considered and analyzed the relevant evidence, including the time and circumstances under which the 2nd Applicant made his first allegation against the police. The submission by the 2nd Applicant that the trial judge had not followed the legal principles and had wrongly directed herself was not substantiated. The first ground of his application cannot stand.", "zh-HK": "第二申請人亦指他在案件首次提訊之前沒有作出投訴，是行使其緘默權，故不應對他作出不利的推斷。本庭不接受這項論據。本庭認為原審法官在考慮第二申請人的指控是否可信時，有權考慮那些指控是否新近提出或捏造，第二申請人有沒有即時作出投訴乃相關的因素。此外，原審法官裁斷第二申請人的指控不可信時，亦有考慮其他相關的情況，包括第二申請人指稱警方人員在拘捕他當天以暴力對待及自行杜撰會面記錄的內容，但該天的會面記錄卻未載有招認。反之，按第二申請人的說法，在簽署第二份載有招認的會面記錄前，警方並沒有施以任何暴力。本庭認為原審法官已正確考慮和分析相關的證據，包括第二申請人是在何時和甚麼情況下首次作出對警方的指控。第二申請人指原審法官沒有按法律原則和錯誤引導自己的陳詞缺乏支持理據。他的第一項申請理由不能成立。" } }, { "doc_id": 62, "seg_id": 35, "translation": { "en": "The second ground by the 2nd Applicant was that the trial judge had made a significant procedural mistake when she allowed PW5 (Inspector Pannu) to give his evidence in Chinese after making an oath in English. We do not see any merit in this ground.", "zh-HK": "第二申請人的次項申請理由是原審法官容許PW5 (Inspector Pannu)採用英語宣誓後，以中文作出證供，因此犯上重大的程序謬誤。本庭認為這項理由不可取。" } }, { "doc_id": 62, "seg_id": 36, "translation": { "en": "First of all, the transcripts of the recordings of the PW5’s testimony do not show that he all along or most of the time answered the prosecution and the defence’s questions directly in Cantonese. On the contrary, the transcripts show that the trial judge had at one stage asked the witness to clarify his answers in view of the translation difficulties (T5 N-R), and that the court interpreter had asked the Counsel to repeat his questions (T7 P-Q). Moreover, it is true that in court proceedings a witness should make an oath in the language that he gives his testimony. However, the court will not conclude that the witness’s testimony is invalid and exclude it merely because he gives his evidence in a language which is different from that he takes his oath. Nor will the Court of Appeal consider it as a major procedural irregularity of the original trial, so as to rule that the verdict of the trial judge was unsafe and should be set aside. In his submission to this Court, Mr. Yeung cast doubt on PW5’s command of the Chinese language. However, PW5 said under the cross-examination by Mr. Jim, Counsel for the 1st Applicant, that he understood Cantonese and he communicated with the other officers in the punti dialect (T8 K-M). Furthermore, we have also noted that when PW5 gave evidence in court, the defence did not raise any concern with the trial judge that the witness was testifying in a language different from that he swore in and asked the trial judge to rectify. These show that they did not consider that there was anything unfair in the trial procedures. Nor did they think that the defendants’ right to a fair trial was infringed in any way. Therefore, the fact that PW5 testified in Chinese after having made his oath in English at the trial did not constitute any major procedural irregularity. It certainly would not render PW5’s testimony invalid or justify the exclusion of his evidence. Mr. Yeung cited the case of HKSAR v Mahat Prem Bahadur [1998] 3 HKC 336, at 340H-I. However the facts in that case are very different from the present case, and the legal principles laid down in that case are not relevant at all.", "zh-HK": "首先，PW5作供時的錄音謄本不顯示他一直或大部分時間是以廣東話直接回答控辯雙方的提問。反之，謄本顯示原審法官曾因翻譯的困難要求證人澄清其答案(T5 N-R)，而法庭傳譯主任亦曾要求大律師覆述問題(T7 P-Q)。再者，雖然在司法程序中，證人應以其選擇作供的語言進行宣誓，但法庭不會單純因為一名證人作供時採用的語言與宣誓時用的言語不同，便認定其證言無效及予以摒除。上訴法庭更不會單純因為原審時出現這種情況便認定有重大程序謬誤，從而認為原審法官的判決不穩妥及予以推翻。楊‍大律師向本庭陳詞時質疑PW5對中文有多少認知。然而，該名證人在接受代表第一申請人的詹‍大律師盤問時，已表明他懂廣東話和是以本地話與其他警員溝通 (T8 K-M)。此外，本庭亦注意到在PW5作供時，辯方沒有向原審法官提出這名證人宣誓和作供採用了不同語言，及要求糾正。由此可見辯方當時不認為審訊程序有任何不公平之處，或是被告人獲得公平審訊的權利有受到削弱。是故，即使原審時PW5在以英語宣誓後以中文作供，這亦不構成重大程序失誤，更遑論令PW5的證言無效，甚至要摒除這部分的證據。楊‍大律師引述HKSAR v Mahat Prem Bahadur [1998] 3 HKC 336, 340H-I一案，但該案的情況與本案截然不同，所論述的法律原則亦與本案毫無關連。" } }, { "doc_id": 62, "seg_id": 37, "translation": { "en": "The 2nd Applicant put forward the third ground which was that the trial judge did not understand that the injuries sustained by the two victims could have been caused by a person other than the 2nd Applicant and that the injuries could have been caused by other persons using the iron pipes. Mr. Yeung argued that the two victims did not say in their evidence that the 2nd Applicant was the assailant, and that in the record of interview, the 2nd Applicant only mentioned kicking the man in red shirt and another man in black shirt a few times. There was no evidence in the present case which suggested the two victims were the only persons wearing a red shirt and a black shirt. Therefore no one could eliminate the possibility that the 2nd Applicant had kicked someone other than the two victims.", "zh-HK": "第二申請人的第三項申請理由是原審法官未能理解兩名受害人的傷勢可以非由第二申請人造成，而是在打鬥過程中被其他人以鐵管毆打所造成。楊‍大律師的論據是：兩名受害人的證言均沒有指證第二申請人是施襲者；第二申請人在會面記錄中祇提及踢了穿紅衣的男子和另一名穿黑衣的男子幾腳，而本案中沒有證據顯示案發時祇有兩名受害人是穿紅衣和黑衣，因此不能排除第二申請人所踢的男子不是兩名受害人。" } }, { "doc_id": 62, "seg_id": 38, "translation": { "en": "We consider that his submission is purely speculative. The assault mentioned by the 2nd Applicant was the same in terms of the location and time as specified in the particulars of the charges and described in the prosecution evidence. The record of interview by 2nd Applicant clearly revealed that the case involved a fight between two gangs. The first gang was made up of the two applicants and his other eight companions, and the second consisted of the victims and another ten odd companions. The gangsters were sharply divided into two sides when they had a fight. The 2nd Applicant also confessed that he kicked the two men of the opposite side. In the circumstance, the submission by Mr. Yeung that it was possible that “the wrong persons were assaulted, the wrong persons were identified or the assault was arbitrary” was not supported by evidence.", "zh-HK": "本庭認為這項陳詞純屬臆測。第二申請人在會面記錄中講述的毆鬥，在地點和時間上都與控罪詳情和控方證據所描述的一致。第二申請人的會面記錄亦清楚顯示案件涉及兩幫人，一方為兩名申請人及同伴共8 人，另一方是受害人和同伴同10 多人。他們互相毆鬥，雙方壁壘分明。第二申請人的招認亦指出他所踢的兩名男子是對方陣營的人。在此情況下，楊‍大律師指有可能「打錯人、認錯人或亂打人」的說法，乃缺乏證據基礎。" } }, { "doc_id": 62, "seg_id": 39, "translation": { "en": "Moreover, although the 2nd Applicant only confessed to a few kicks and no other assault in other ways, he is criminally liable to the injuries sustained by the two victims under the legal principle of “joint enterprise”.", "zh-HK": "此外，雖然第二申請人祇承認踢了幾腳，沒有提及以其他方式施行襲擊，但按照「共同參予」的法律原則，他亦須為兩名受害人的傷勢負上刑事責任。" } }, { "doc_id": 62, "seg_id": 40, "translation": { "en": "Mr. Yeung also submitted that the trial judge did not draw a clear distinction between the two charges. We are of the view that his submission in this regard is irrelevant. From the reading of paragraph 8 of the Reasons of Findings, it can be seen that the trial judge clearly understood that the first charge was different from the second charge. In this case, the defense did not challenge the injuries sustained by the two victims. In view of this, Mr. Yeung’s submission as to whether the PW1 had sustained “break of true skin” would not support the 2nd Applicant’s application.", "zh-HK": "楊‍大律師亦指原審法官沒有明確區分兩條控罪。本庭認為這點無關宏旨。從裁決理由書第8 段可看到原審法官是清楚知悉第一和第二條控罪是有不同之處。而且在本案中，辯方對兩名受害人的傷勢從沒有爭議。基於此，楊‍大律師有關PW1是否有「真皮破損」(break of true skin) 的情況的陳詞，同樣無助第二申請人的申請。" } }, { "doc_id": 62, "seg_id": 41, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 62, "seg_id": 42, "translation": { "en": "We allow the 1st Applicant’s application for leave to appeal. Treating his application as the formal appeal, we allow the appeal. His conviction and sentence are hereby quashed. But the application by the 2nd Applicant is refused.", "zh-HK": "本庭批准第一申請人就定罪上訴的許可申請，視其申請為正式上訴，並判上訴得直，撤銷定罪的裁決和判刑；但拒絕第二申請人的申請。" } }, { "doc_id": 62, "seg_id": 43, "translation": { "en": "Mr. Ira Lui, Senior Public Prosecutor, of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官雷芷茗代表" } }, { "doc_id": 62, "seg_id": 44, "translation": { "en": "由法律援助署委派張世文蔡敏律師事務所轉聘詹俊祺大律師代表\tMr. Jacky Jim, instructed by Messrs. Cheung & Choy, for the 1st Applicant.", "zh-HK": "第一申請人：" } }, { "doc_id": 62, "seg_id": 45, "translation": { "en": "Mr. Y C Yeung, instructed by Messrs. Wong & Co., for the 2nd Applicant.", "zh-HK": "第二申請人：由法律援助署委派黃律師事務所轉聘楊若全大律師代表" } }, { "doc_id": 63, "seg_id": 1, "translation": { "en": "On the morning of 21 March 2012, the police stopped a private car KX 9176 at Nos 26-36 Prat Avenue, Tsim Sha Tsui. The applicant (So Tsz Hon), the registered owner of KX 9176, was in the driver’s seat at the material time, while Yip Man Hei (Yip) and Wong Kai Wing (Wong) were in the front passenger seat and the left rear passenger seat respectively.", "zh-HK": "2012年 3 月 21 日上午，警員在尖沙咀寶勒巷26至36號，截停私家車 KX9176。申請人 (蘇‍子‍幹)是KX9176的登記車主，事發時坐在司機位，而前座及左後座乘客分別是葉‍民‍熙 (葉)和黃‍佳‍榮 (黃)。" } }, { "doc_id": 63, "seg_id": 2, "translation": { "en": "Upon search, the police found from the right rear passenger seat a red-coloured bag, inside which were other plastic bags which contained a total of 1.96 kg of a powder containing 1.65 kg of ketamine, the retail value of which was approximately $220,000.", "zh-HK": "警員在KX9176右後座位搜獲一紅色袋，內有其他膠袋裝載著共重1.96 公斤的粉末，內含1.65 公斤氯胺酮。該批氯胺酮的零售價約為22 萬元。" } }, { "doc_id": 63, "seg_id": 3, "translation": { "en": "The applicant, Yip and Wong were arrested. The applicant said under caution that he had nothing to do with the case. He said that one “Man Chai” (transliteration) called him on the morning of the material day, telling him to drive to Prat Avenue for something urgent. When the applicant arrived at Prat Avenue, “Man Chai” got in the car and immediately “dropped” the red-coloured bag in his hand on the rear passenger seat. The applicant said he did not know that there was drug inside the red-coloured bag.", "zh-HK": "申請人、葉和黃同被拘捕，警誡下申請人表示事件和他無關。他指當天早上“民‍仔”致電給他表示有急事，要申請人駕車到寶勒巷。當申請人抵達寶勒巷後，“民‍仔”上車並即時“丟低”手持的紅色袋在後座乘客座位，申請人指他不知悉紅色袋內有毒品。" } }, { "doc_id": 63, "seg_id": 4, "translation": { "en": "The police also found upon search in KX 9176 other items including two mobile phones (P20 and P23), two notebooks (P14 and P15) and two Octopus Cards (P16 and P17).", "zh-HK": "警員亦在KX9176內搜獲其他物品，包括兩部手提電話 (P20和P23)、兩本記事簿 (P14和P15)和兩張八達通卡 (P16，P17)。" } }, { "doc_id": 63, "seg_id": 5, "translation": { "en": "On the afternoon of the same day, the applicant said in the video-recorded interview with the police that the nicknames of Yip and Wong were respectively “Man Chai” [transliteration] and “Kai Chai” [transliteration], and that he had known them for two months or so.", "zh-HK": "同日下午，申請人和警員錄影會面時指葉和黃的花名分別是“民‍仔”和“佳‍仔”，及認識了他們約兩個月。" } }, { "doc_id": 63, "seg_id": 6, "translation": { "en": "The applicant reiterated that he received Yip’s call in the morning and that, as instructed by Yip, he drove KX 9176 to Prat Avenue and stopped off the entrance of a McDonald’s restaurant. After receiving a subsequent phone call from Yip, he reversed the car to the downstairs of Sun Hot Sauna. At that time, he saw Yip and Wong walk out of Sun Hot Sauna and get straight into KX 9176.", "zh-HK": "申請人重申早上接到葉的電話並按他的指示將KX9176停在寶勒巷麥當勞門口。當他再收到電話後便將車後退至新溫泉桑拿樓下。當時他看見葉和黃由新溫泉桑拿步出並隨即上了KX9176。" } }, { "doc_id": 63, "seg_id": 7, "translation": { "en": "According to the applicant, Yip placed a bag on the rear passenger seat, and then went over to take the front passenger seat and put a packet of cigarettes and a phone on the dashboard, whereas Wong took the rear passenger seat. When the applicant asked him where to go, Yip told him to start off first, but they were stopped by the police right at that moment.", "zh-HK": "申請人指葉將袋放在後面座位後，坐在前座乘客位並將一包煙、一個電話放在車頭;而黃則坐在後座座位。當申請人問他往那裡去時，葉叫他先開車但他隨即遭警員截停。" } }, { "doc_id": 63, "seg_id": 8, "translation": { "en": "When questioned by the police, the applicant reiterated that he did not know that there was drug inside the bag. In reply to the police’s enquires about the contents of P14, the applicant said that it was a record of the times, dates and places of the rides he gave Yip, for the purpose of collecting remuneration. The applicant explained that he would charge Yip $300 for the “petrol” every time he gave him a ride to a place designated by him, and P14 recorded some telephone numbers and abbreviations of sundry places. The record shows that the applicant had received amounts as much as $1,000-odd or even $2,000-odd. The applicant said that he had asked Yip if he was engaged in illegal activities but Yip had denied.", "zh-HK": "警員查問他時，申請人重申不知袋內有毒品。警員曾就P14的內容查問申請人，申請人指P14是記錄他接載葉的日子、時間和地方，用作收取酬金。申請人解釋他每按葉指示到一個地方就會收取他300元作為“油錢”，而P14記錄了一些電話號碼和不同地方的簡稱。記錄顯示申請人曾收取的金額高達一千餘甚至2,000多元。申請人指自己有問過葉是否從事非法活動，但葉否認。" } }, { "doc_id": 63, "seg_id": 9, "translation": { "en": "The applicant also said that he had written his own name and telephone number in P15, which belonged to Yip, so that people could notify him in case his car blocked anyone’s way.", "zh-HK": "申請人亦指P15屬於葉而內有他寫下自己的名字和電話號碼，目的是當他的私家車阻塞他人時，方便別人通知他。" } }, { "doc_id": 63, "seg_id": 10, "translation": { "en": "The applicant said that P16 was lent from Yip for the purpose of passing the car park barrier and that P17 belonged to himself.", "zh-HK": "申請人指P16是葉借給他，作入停車場閘口用，而P17則是屬於他自己的。" } }, { "doc_id": 63, "seg_id": 11, "translation": { "en": "The applicant said that P20 was “given” to him by Yip for his use, whereas P21 was the applicant’s own, but the SIM card was transferred to P20.", "zh-HK": "申請人指P20是葉“俾”他用，而P21則是他自己的，但電話卡則轉至P20。" } }, { "doc_id": 63, "seg_id": 12, "translation": { "en": "The applicant also gave an account to the police of how he met Wong and their past dealings.", "zh-HK": "申請人有就認識黃及和他交往的經過向警員作出解釋。" } }, { "doc_id": 63, "seg_id": 13, "translation": { "en": "Following the above incident, the applicant was charged with unlawful trafficking with Yip in the ketamine in question. The applicant pleaded not guilty and was tried before Deputy High Court Judge Yau (the trial judge) sitting with a jury.", "zh-HK": "上述事件導致申請人被控和葉非法販運涉案的氯胺酮。申請人否認控罪並在高等法院暫委法官邱‍智‍立‍(原審法官)會同陪審團席前受審。" } }, { "doc_id": 63, "seg_id": 14, "translation": { "en": "On 12 April 2013, the applicant was convicted as charged by the jury. On 15 April 2013, he was sentenced to 16 years’ imprisonment.", "zh-HK": "2013 年 4 月 12 日，申請人遭陪審團裁定罪名成立，並在2013 年 4 月 15 日被原審法官判入獄16 年。" } }, { "doc_id": 63, "seg_id": 15, "translation": { "en": "Represented by Mr So of Counsel, the applicant applied for leave to appeal his conviction and/or sentence.", "zh-HK": "申請人不服定罪及判刑，由蘇‍啟‍明大律師提出申請，要求獲准就定罪及/或判刑上訴。" } }, { "doc_id": 63, "seg_id": 16, "translation": { "en": "At the conclusion of the hearing, we granted leave to the applicant to appeal his conviction and, treating the hearing as the appeal proper, we allowed the appeal, quashed the conviction and set aside the sentence. However, we ordered that the case be remitted to the Court of First Instance for retrial and that the applicant be remanded in custody pending retrial. The reasons for our decisions are set out below.", "zh-HK": "經聆訊後，本庭批准申請人就定罪提出的上訴許可申請。本庭視上訴許可申請為正式上訴，並裁定申請人就定罪的上訴得直。本庭撤銷針對申請人的定罪及判刑，但下令案件要發原訟庭重審。本庭將申請人繼續還押，等候重審安排。以下是本庭的判案理由。" } }, { "doc_id": 63, "seg_id": 17, "translation": { "en": "Prosecution case", "zh-HK": "控方立場" } }, { "doc_id": 63, "seg_id": 18, "translation": { "en": "There was little dispute over how the incident happened. The prosecution contended that the evidence was sufficient to prove that the applicant and Yip were in joint possession of the ketamine in question, for the purpose of delivering or supplying it to others.", "zh-HK": "就案件的案發經過，雙方爭議不大。控方指證據足以顯示申請人和葉共同管有涉案的氯胺酮，目的是將該批毒品運送或供應他人。" } }, { "doc_id": 63, "seg_id": 19, "translation": { "en": "It was the prosecution’s case that the applicant knew not only the presence but also the nature of the drug inside the bag placed on the rear passenger seat of KX 9176, and that he was in possession of the drug for the purpose of delivering and supplying it to others. With a view to proving the applicant’s knowledge, the prosecution witness pointed out in his testimony that when the police tried to stop the applicant for a search, the applicant did not stop the car promptly, but instead drove past the police officer who tried to stop him, as a result of which the police had to stop a police vehicle across Prat Avenue in order to prevent the applicant from driving the car away from the scene. In his closing submission, prosecuting counsel emphasized to the jury the prosecution’s stance in these terms:", "zh-HK": "控方指申請人不但知悉該袋毒品放在KX9176的後座位，亦知道其性質而其管有該批毒品的目的是將它們運送或供應給他人。為了證明申請人知情，控方證人作供時指當警員截查申請人時，申請人沒有立刻停車，更駛過截查他的警員身邊，導致警員要將警車橫放在寶勒巷，避免申請人將私家車駛離現場。控方律師向陪審團結案陳詞時，更以下列說法強調控方所持的立場:" } }, { "doc_id": 63, "seg_id": 20, "translation": { "en": "“Taking a chance then, moving slowly bit by bit until the car moved away. What happened in the end? It got past PW1 and did not stop, even though PW1 gestured and signaled him to stop. He thought he could get through, going, going away slowly. But subsequently, the emergency unit vehicle simply blocked Prat Avenue at an angle. There was no way to escape. He had no choice but to stop. That was the defendant, the driver on the material day…”", "zh-HK": "“跟住搏一搏，慢慢趷趷趷，趷架車出去，結果係點樣樣呢係? 經過咗控方第一證人，人哋做晒手勢，打晒訊號叫佢停車，佢唔停，佢諗住可以過到，走，慢慢走囉咁，但係後屘衝鋒車直情打斜咁樣塞住寶勒巷，無路可逃o‍刺，咁惟有停車，呢個就係被告當日佢係司機嚟嘅…”" } }, { "doc_id": 63, "seg_id": 21, "translation": { "en": "The applicant’s case and evidence", "zh-HK": "申請人的立場和證據" } }, { "doc_id": 63, "seg_id": 22, "translation": { "en": "The evidence adduced by the prosecution was largely undisputed. The applicant agreed that the bag of ketamine in question was found upon search from the rear passenger seat of KX 9176. He also indicated that he knew the bag was there. However, he denied knowing that the bag contained ketamine or any other contraband. His case was that he had nothing to do with it, Yip being the sole author of the whole incident.", "zh-HK": "申請人對控方提出的證據大部分不表異議，他同意涉案的一袋氯胺酮是從KX9176後座搜出。申請人亦表示他知悉該袋物品的存在，但他否認知悉該袋內載有氯胺酮或任何其他違禁品，他的立場是事件由葉一手造成，和他無關。" } }, { "doc_id": 63, "seg_id": 23, "translation": { "en": "In his testimony at trial, the applicant said that he used to be a driver by profession, but from April to May 2012, he worked in a computerized automobile services company as a repair and maintenance technician. He asserted that what he said under caution and throughout the police interviews was true.", "zh-HK": "作供自辯時，申請人指自己原是職業司機，但在2012 年 4 至 5 月，在一電腦汽車屋做維修服務員。申請人力稱在警誡下及和警員會面時，所說的都是真話。" } }, { "doc_id": 63, "seg_id": 24, "translation": { "en": "The applicant went on to say that he was introduced to Yip by one Law Hoi Yiu [transliteration] in early March 2012, and KX 9176 was purchased on the internet for $14,000 in the same month, and since then he had become Yip’s part-time chauffeur. The applicant stressed that the remuneration of $300 that Yip gave him for every trip was the market price and not a particularly handsome reward.", "zh-HK": "申請人續稱在2012 年 3 月初透過羅‍鎧‍堯認識了葉，並在2012年 3 月以14,000 元在網上購入KX9176後成為葉的兼職私人司機。申請人強調葉給予他的每程酬金300 元屬市價而非特別豐厚。" } }, { "doc_id": 63, "seg_id": 25, "translation": { "en": "The applicant also explained why Yip and Wong kept calling him at 7 am or so on the day of the offence. He testified that he was still sleeping so he did not answer the phone, and then he even set the phone to the vibration mode and did not answer any call. Yip therefore had to text him on the phone. Only at 9:05 am or so did he answer Yip’s call, and then he went to Prat Avenue upon Yip’s instruction. The applicant reiterated in his evidence that when a police officer tried to stop him, Yip said, “Ignore him, just rush on”, but he still stopped the car because he had done nothing wrong.", "zh-HK": "申請人亦有就案發當天早上 7 時許葉和黃不斷打電話給他一事解釋。他指初時自己仍在睡覺故沒有接聽來電，後來更將電話設定為震機並完全不接聽來電。葉更因而要發短訊給他。直至早上約 9 時 05 分，他才接聽葉的來電並按他的指示前往寶勒巷。申請人重申當有警員截停他時，葉曾說過“唔好理，衝” ，但他仍將車停下，原因是他沒有犯錯。" } }, { "doc_id": 63, "seg_id": 26, "translation": { "en": "The applicant admitted under cross-examination that at the first police interview he did say that he stopped the car because the police vehicle “obstructed” the road, but he also pointed out that even if the police vehicle had not obstructed the road, he would still have stopped the car. The applicant explained why he opened a bank account without depositing money into it, and also explained his relationships with Yip and Wong and their nicknames.", "zh-HK": "遭盤問下，申請人承認和警員首次會面時，有說過停車是因為警車“阻住”馬路，但指即使沒有警車阻路，他也會停車。申請人就自己開設銀行帳戶，但沒有存錢入銀行的做法作出解釋，申請人亦有解釋他和葉及黃的關係及對他們的稱謂。" } }, { "doc_id": 63, "seg_id": 27, "translation": { "en": "The applicant also explained the contents of the notebook found upon search from KX 9176.", "zh-HK": "申請人亦有就在KX9176搜獲的記事簿內容作出解釋。" } }, { "doc_id": 63, "seg_id": 28, "translation": { "en": "Apart from giving evidence himself, the applicant also called Law Hoi Yiu to give evidence. Law confirmed that after he came to know Yip in March 2012, he introduced the applicant to Yip as his chauffeur. Law testified that he did not know much about Yip.", "zh-HK": "除了作供自辯外，申請人亦有傳召羅‍鎧‍堯作供。羅‍鎧‍堯確認有在 2012 年 3 月認識了葉後，便將申請人介紹給他作司機，羅‍鎧‍堯表示他對葉認識不深。" } }, { "doc_id": 63, "seg_id": 29, "translation": { "en": "The trial judge’s directions to jury", "zh-HK": "原審法官對陪審團的指引" } }, { "doc_id": 63, "seg_id": 30, "translation": { "en": "The trial judge gave the jury detailed explanations of both the questions of law and factual issues arising from the case.", "zh-HK": "原審法官就案件引發的法律和事實議題都有向陪審團詳細解釋。" } }, { "doc_id": 63, "seg_id": 31, "translation": { "en": "The trial judge emphasized once and again to the jury that if they could not be sure that the applicant knew that there was drug inside the plastic bag in question, they must return a verdict of not guilty. The trial judge made it clear that the jury could find the applicant guilty if and only if they were sure that: (1) the applicant knew that there was “drug” inside the plastic bag in question or even knew that the drug was ketamine; (2) the applicant had the intention and ability to have custody of or exercise control over the drug; and (3) the applicant had custody and control of the drug for the purpose of delivering and supplying it to others. The trial judge emphasized that it was open to the jury to draw a reasonable inference in respect of the purpose of the custody and control of the drug by the applicant, but that if the jury inferred that the applicant had custody and control of those drugs for the purpose of delivering and hence supplying it to others, that inference must be the only reasonable inference, otherwise they would have to acquit the applicant.", "zh-HK": "原審法官多次向陪審團強調，如果他們不能肯定申請人知道涉案膠袋內裝有毒品，他們必須裁定申請人無罪。原審法官指明要裁定申請人有罪，陪審團必須肯定(一)申請人知悉涉案膠袋內有“毒品” ，甚至知道毒品是氯胺酮;(二) 申請人有意圖及有能力保管或控制該些毒品及(三) 申請人保管及控制該些毒品的目的是運送毒品供應給他人。原審法官強調就申請人保管或控制該些毒品的目的，陪審團可以作出合理推論，但如他們推論申請人保管或控制該些毒品的目的是運送以供應給他人時，他們的推論必須是唯一合理的推論，否則他們要裁定申請人罪名不成立。" } }, { "doc_id": 63, "seg_id": 32, "translation": { "en": "The trial judge also gave the following directions to the jury:", "zh-HK": "原審法官同時向陪審團作出以下指引:" } }, { "doc_id": 63, "seg_id": 33, "translation": { "en": "“Now I also need to further explain this to you: if, having considered all the testimonies and all the evidence, you are sure that the defendant was in possession of the drug, but you cannot be sure or do not accept at all that the defendant was in possession of the drug for the purpose of delivering and supplying it to others as alleged by the prosecution, you will still have to find the defendant guilty. This is because the present case involves a large quantity of drug which is worth up to HK$200,000-odd in value. Therefore, if you are sure that the defendant was in possession of the drug, then this could not possibly have been for the purpose of self-consumption or visual appreciation. We have before us evidence on the defendant’s background and financial condition. Therefore, if, having considered all the evidence, you are sure that the defendant was in possession of the drug, then such possession must have been for the purpose of unlawful trafficking, and no other conclusions can possibly be drawn. Hence, even if you cannot be sure or do not accept that the defendant was in possession of the drug for the purpose of delivering and supplying it to others, he was still in possession of the drug for other unlawful trafficking purposes. This must of course rest on the premise that you are sure, first of all, that the defendant was in possession of the drug, and if you cannot be sure that the defendant was in possession of the drug, you must return a verdict of not guilty.”", "zh-HK": "“喺呢度亦都要進一步向大家解釋，如果你哋考慮過晒所有嘅證供、所有嘅證據，如果你哋肯定被告人係管有呢啲毒品，但係你哋唔肯定或者根本上唔接受控方所指，話被告人嘅目的或者用途係要將呢啲毒品運送去供應畀其他人嘅話，你哋仍然要裁定被告人罪名成立，因為喺呢件案件裡面，呢啲毒品嘅份量好多，價值亦都值成二十幾萬港紙，因此如果你哋肯定被告人係管有呢啲毒品嘅話，佢冇可能係管有毒品作為佢自己吸食嘅用途或者作為觀賞物品，案中裡面有晒被告人背景嘅證據、被告人嘅財政狀況。因此，考慮晒呢啲所有證供嘅話，根本上如果你哋肯定被告人係管有呢啲毒品嘅話，佢一定係將呢啲毒品作為非法嘅販運用途，呢個冇可能有其他嘅結論。所以，就算你哋唔肯定佢係愛嚟運送去供應毒品畀其他人，或者你哋唔接受佢用嚟係運送去供應畀其他人都好，佢都一定係管有呢啲毒品，作為其他嘅非法販運用途。當然個大前提係，你哋要肯定，首先要肯定，被告人係管有呢啲毒品，如果你哋唔肯定被告人管有毒品嘅話，你哋一定要裁定佢罪名唔成立。”" } }, { "doc_id": 63, "seg_id": 34, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 63, "seg_id": 35, "translation": { "en": "Mr So, Counsel for the applicant, put forward the following grounds of appeal:", "zh-HK": "代表申請人的蘇‍啟‍明大律師提出以下數點上訴理由:" } }, { "doc_id": 63, "seg_id": 36, "translation": { "en": "原審法官錯誤地引導陪審團，指只要他們肯定申請人管有涉案毒品，則他們應裁定申請人販運毒品罪名成立;\tThe trial judge misdirected the jury that as long as they were sure that the applicant was in possession of the drug in question, they should find the applicant guilty of drug trafficking;", "zh-HK": "(一)" } }, { "doc_id": 63, "seg_id": 37, "translation": { "en": "原審法官錯誤地引導陪審團，指控方無須確認申請人打算以涉案毒品作控方所指的販運用途而只要申請人有其他販運用途便可;\tThe trial judge misdirected the jury that it was not necessary for the prosecution to prove that the applicant intended to use the drug in question for the trafficking purpose alleged by the prosecution, and that it would be sufficient if the applicant had other trafficking purposes;", "zh-HK": "(二)" } }, { "doc_id": 63, "seg_id": 38, "translation": { "en": "原審法官不但沒有分析或解釋支持申請人知悉膠袋內所載是毒品的證據，包括紅黑簿，更沒有向陪審團表明沒有任何直接證據顯示申請人對毒品的存在及性質知情;及\tThe trial judge not only failed to analyze or explain the evidence, such as the red-and-black notebook, adduced in support of the allegation that the applicant knew the plastic bag contained drug, but also failed to tell the jury specifically that there was no direct evidence showing that the applicant had knowledge of the existence and nature of the drug; and", "zh-HK": "(三)" } }, { "doc_id": 63, "seg_id": 39, "translation": { "en": "原審法官沒有向陪審團表明證據可能顯示涉案毒品是由葉或黃管有而申請人是不知情的，及即使他知情，但亦可能不清楚該批毒品的真正用途。\tThe trial judge failed to make it clear to the jury that the evidence might suggest that the drug in question was in the possession of Yip or Wong without the applicant’s knowledge, and that even if the applicant had knowledge, he might have no idea about the real purpose of the drug.", "zh-HK": "(四)" } }, { "doc_id": 63, "seg_id": 40, "translation": { "en": "Mr So contended that whether or not the applicant was in possession of the drug in question for the purpose of unlawful trafficking was a factual issue to be determined by the jury, and that the trial judge should not have directed them that they could jump to the verdict that the applicant was guilty of unlawful trafficking if they firmly believed that the applicant was in possession of the drug in question.", "zh-HK": "蘇‍大律師力稱，申請人是否管有涉案毒品作非法販運用途是事實裁定，現應由陪審團作出，故原審法官不應指引他們，當他們確信申請人管有涉案毒品，便可以直接裁定申請人非法販運毒品罪成。" } }, { "doc_id": 63, "seg_id": 41, "translation": { "en": "At the suggestion of the Court, Mr So advanced a further ground of appeal, namely that the prosecution relied on the applicant’s attempt to flee the scene at the material time as evidence of his knowledge of the drug, but the trial judge failed to give the jury a “flight” direction, and such failure caused injustice to the applicant.", "zh-HK": "在法庭的建議下，蘇‍大律師提出另一上訴理由，他指控方依賴申請人在案發時試圖逃離現場，目的是要顯示他對毒品知情的，但原審法官卻沒有向陪審團作出“潛逃”(Flight)指引，對申請人不公。" } }, { "doc_id": 63, "seg_id": 42, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 63, "seg_id": 43, "translation": { "en": "The applicant, who was the registered owner of KX 9176, was driving that car at the material time. The drug in question was found upon search from the rear passenger seat of KX 9176. The applicant also admitted that he knew that something contained in the plastic bag was inside the car. The issues were whether the applicant knew that there was drug inside the plastic bag and whether the applicant had the intention and ability to deal with that bag of drugs. If the applicant knew that there was drug in the plastic bag and he had the intention and ability to deal with them, then he would be regarded as being in possession of that bag of drug. If the applicant was in fact in possession of the bag of drug, then another issue was whether he was in possession of the bag of drug for the purpose of unlawful trafficking.", "zh-HK": "申請人是KX9176的註冊車主而案發時亦正駕駛著該輛車，涉案毒品在KX9176的後座座位被搜出而申請人亦承認知悉該包用膠袋包裹的東西在車內。案件的爭議點是申請人是否知悉膠袋內藏有毒品;他是否有意圖及能力處理該包毒品。如申請人知悉膠袋內藏有毒品而他有意圖及能力處理該包毒品，則申請人會被視為管有該包毒品。如申請人確實有管有該包毒品，則另一議題是他管有該包毒品的目的是否作非法販運用途。" } }, { "doc_id": 63, "seg_id": 44, "translation": { "en": "Being unable to adduce direct evidence on issues such as the applicant’s knowledge, intention, ability or purpose, the prosecution could only invite the jury to draw adverse inferences against the applicant in respect of those issues.", "zh-HK": "控方不能就申請人的認知、意圖、能力，目的等議題提出直接證據，而只能邀請陪審團就該些議題作出對申請人不利的推論。" } }, { "doc_id": 63, "seg_id": 45, "translation": { "en": "The inference which the prosecution invited the jury to draw was that the applicant not only had knowledge of the nature of the bag of drug, but also had the ability and intention to deal with it, and therefore the applicant was in possession of the bag of drug. The jury was invited to further infer that the applicant was in possession of the bag of drug for the purpose of unlawful trafficking and to convict the applicant accordingly.", "zh-HK": "控方要求陪審團作出的推論是申請人不但知悉該包毒品的性質，更有能力及意圖處理它，故申請人是管有該包毒品。控方要求陪審團進一步推論申請人管有該包毒品的目的是作非法販運用途，因此陪審團應裁定申請人罪名成立。" } }, { "doc_id": 63, "seg_id": 46, "translation": { "en": "The trial judge made it clear to the jury at the outset of his directions that:", "zh-HK": "原審法官開始指導陪審團時，就開宗明義地對他們說:" } }, { "doc_id": 63, "seg_id": 47, "translation": { "en": "“… in the present case, the most important matters on which you have to decide are whether the defendant knew that there was such a plastic bag in the car, whether he knew that there was drug inside that plastic bag, and whether he was in possession of the drug for the purpose of unlawful trafficking.”", "zh-HK": "“…喺呢件案件裡面，你哋要決定最重要嘅事項，係被告人知唔知道車廂裡面有呢個膠袋，佢知唔知道膠袋裡面係裝有毒品，同埋佢係咪管有呢啲毒品作非法販運用途。”" } }, { "doc_id": 63, "seg_id": 48, "translation": { "en": "The trial judge provided a detailed explanation of “inference”, citing examples to illustrate the meaning of “the only reasonable inference”. The trial judge made it clear to the jury that they were not allowed to make any adverse inference against the defendant unless it was the only reasonable inference that could be made.", "zh-HK": "原審法官就“推論”一議題有向陪審團作出詳細解釋，並列出例子解釋甚麼是唯一合理的推論。原審法官向陪審團表明他們不能對被告人作出任何不利的推論，除非該不利被告人的推論是唯一合理的推論。" } }, { "doc_id": 63, "seg_id": 49, "translation": { "en": "The trial judge did remind the jury that, although the prosecution case was that the applicant and Yip committed the offence in concert, the jury had to firmly believe that the applicant was in possession of the drug for the purpose of delivering or supplying it to others before they could find him guilty.", "zh-HK": "原審法官有提醒陪審團控方是指申請人是和葉一起犯案，但他們要裁定申請人有罪前，必須確信申請人管有涉案的毒品而其目的或用途是運送或供應給他人。" } }, { "doc_id": 63, "seg_id": 50, "translation": { "en": "The trial judge repeated to the jury in detail the prosecution and defence evidence, including the circumstances of the arrests of the applicant, Yip and Wong as well as their responses.", "zh-HK": "原審法官有將雙方證據詳細向陪審團覆述，覆述內容包括警員拘捕申請人、葉和黃的經過及他們的反應。" } }, { "doc_id": 63, "seg_id": 51, "translation": { "en": "It is for the jury to decide how to make reasonable inferences based on evidence to resolve issues in dispute in a case.", "zh-HK": "如何根據證據作出合理的推論以解決案件的爭議是陪審團要作出的決定。" } }, { "doc_id": 63, "seg_id": 52, "translation": { "en": "The facts of the present case are straightforward and the applicant’s stance was clear. The issues before the jury were: whether they could draw the only reasonable inference that the applicant knew that there was drug in the plastic bag in question and that the applicant had the intention and ability to deal with the drug; and, if the jury found that the applicant was in possession of the drug, whether the applicant was in possession of it for the purpose of trafficking.", "zh-HK": "本案案情十分簡單，而申請人的立場亦非常明確。陪審團要解決的議題是他們能否作出唯一合理的推論證明申請人知悉涉案膠袋內載有毒品而申請人有意圖及能力處理該些毒品。如陪審團裁定申請人管有該些毒品，他的目的是否作販運用途。" } }, { "doc_id": 63, "seg_id": 53, "translation": { "en": "The directions given by the trial judge on the above issues were thorough, correct and sufficient, except in the following two aspects which are open to question.", "zh-HK": "就上述議題，除下文提及的兩點是值得商榷外，原審法官給予陪審團的指引是全面、正確及足夠的。" } }, { "doc_id": 63, "seg_id": 54, "translation": { "en": "With the trial judge’s directions, the jury must have had a clear picture of the case and the evidence of both parties and must have understood the issues to be decided by them. We do not consider it necessary for the trial judge to point out to the jury specifically that there was no direct evidence showing that the applicant had knowledge of the existence and nature of the drug in question, or that the evidence might merely suggest that the drug in question was in the possession of Yip or Wong without the applicant’s knowledge, or that even if the applicant had knowledge, he might have no idea about the real purpose of the drug.", "zh-HK": "根據原審法官的指引，陪審團必能清楚雙方的立場及證據，他們亦會理解要解決的議題是甚麼。本庭不同意原審法官有需要特別向陪審團表明沒有直接證據顯示申請人對涉案毒品的存在及性質知情;或證據可能只顯示涉案毒品是由葉或黃管有而申請人是不知情的，或即使他知情亦可能不清楚該批毒品的真正用途。" } }, { "doc_id": 63, "seg_id": 55, "translation": { "en": "The trial judge repeatedly emphasized to the jury that they could convict the applicant only when they were sure that the applicant had knowledge of the presence and nature of the drug in question and were also sure that the applicant was in possession of the drug for the purpose of delivering or supplying it to others.", "zh-HK": "原審法官多次向陪審團強調，他們需要肯定申請人知悉涉案毒品的存在及其性質，亦要肯定申請人管有該批毒品目的是作運送或供應給他人，才能將申請人定罪。" } }, { "doc_id": 63, "seg_id": 56, "translation": { "en": "The trial judge and the jury play different roles in criminal trials in the High Court. Jurors act as arbiters of fact, and issues such as whether or not a defendant was in possession of drugs and whether the defendant was in possession of those drugs for the purpose of unlawful trafficking, being issues of fact, should be decided by the jury.", "zh-HK": "在高等法院審理的刑事案件，主審法官和陪審團扮演不同角色。陪審團是事實的裁決者，而被告人是否管有毒品及是否將毒品用作非法販運用途屬事實議題，理應由陪審團作出。" } }, { "doc_id": 63, "seg_id": 57, "translation": { "en": "The present case involves ketamine of a total weight of 1.65 kg and with a total value exceeding $200,000. When the applicant was in possession of such a quantity of ketamine, and in the absence of other acceptable evidence showing that the applicant had credible reasons for possessing such a large quantity of ketamine, it would not be difficult for the jury to draw the only reasonable inference that the applicant was in possession of the drug for the purpose of unlawful trafficking.", "zh-HK": "本案涉及的氯胺酮重量達1.65 公斤，價值超過20 萬元。當申請人管有該分量的氯胺酮，在沒有其他值得信納的證據顯示申請人有其他合信理由管有該大批氯胺酮時，陪審團不難作出唯一合理的推論就是申請人管有該批毒品作非法販運用途。" } }, { "doc_id": 63, "seg_id": 58, "translation": { "en": "On the above issues of fact, the trial judge should not have usurped the jury’s role as arbiters of fact. It was open to the judge to express his views, but in the end those issues should still be left to the jury for determination.", "zh-HK": "原審法官不應就上述事實問題篡奪陪審團作為事實裁決者的職能。原審法官可以就上述議題表達其意見，但最終仍應將該議題交由陪審團定奪。" } }, { "doc_id": 63, "seg_id": 59, "translation": { "en": "In his directions to the jury, the trial judge said, “if, having considered all the evidence, you are sure that the defendant was in possession of the drug, then such possession must have been for the purpose of unlawful trafficking, and no other conclusions can possibly be drawn.”", "zh-HK": "原審法官指引陪審團時說“考慮晒呢啲所有證供嘅話，根本上如果你哋肯定被告人係管有呢啲毒品嘅話，佢一定係將呢啲毒品作為非法嘅販運用途，呢個冇可能有其他嘅結論”。" } }, { "doc_id": 63, "seg_id": 60, "translation": { "en": "The above direction given by the trial judge is in our view improper. However, a mistake made by the trial judge does not necessarily lead to the quashing of his judgment by the Court of Appeal unless the mistake has actually resulted in a miscarriage of justice (see section 83(1) of the Criminal Procedure Ordinance).", "zh-HK": "本庭認為原審法官的上述指引是不恰當的。但原審法官的失誤，不一定會導致上訴法庭去推翻原判的裁決，除非事件實際導致司法不公(見《刑事訴訟程序條例》第83(1)條)。" } }, { "doc_id": 63, "seg_id": 61, "translation": { "en": "In our judgment, against the background of the present case, the above mistake made by the trial judge would not have caused any miscarriage of justice. The jury must have been sure that the applicant knew that the drug in question was inside KX 9176 which was registered in his name and driven by him, and that he had knowledge of the nature of the drug. The jury must also have been sure that the applicant had the intention and ability to deal with that bag of drug and that he was in possession of that bag of drug.", "zh-HK": "本庭認為以本案的背景而言，原審法官的上述失誤不會導致任何司法不公。陪審團必然是肯定申請人知悉涉案毒品在其名下及在其駕駛的KX9176上，亦肯定他知悉該些毒品的性質。陪審團亦必然是確信申請人有意圖及能力去處理該包毒品，及認定他管有該包毒品。" } }, { "doc_id": 63, "seg_id": 62, "translation": { "en": "Given the quantity and value of the drug in question, and in the absence of any reasonable and credible evidence to the contrary, any reasonable jury would have been sure that the applicant was in possession of the drug for the purpose of unlawful trafficking. Mr So contended that the trial judge had misdirected the jury by saying that they should convict the applicant of drug trafficking once they were sure that he was in possession of the drug in question, but in our judgment this does not constitute a valid ground of appeal which would be sufficient to overturn the jury’s verdict.", "zh-HK": "以涉案毒品的分量和價值而言，及在沒有任何合理及可信納的證據顯示任何相反情況時，任何合理的陪審團都必會認定申請人管有該批毒品用作非法販運用途。蘇‍‍大律師指原審法官錯誤地引導陪審團，指他們肯定申請人管有涉案毒品便應裁定他販運毒品罪名成立不構成有效的上訴理由，足以推翻陪審團的定罪裁決。" } }, { "doc_id": 63, "seg_id": 63, "translation": { "en": "On the other hand, we consider it improper for the trial judge not to have directed the jury on “flight”.", "zh-HK": "但本庭認為原審法官沒有給予陪審團“潛逃”指引有不妥之處。" } }, { "doc_id": 63, "seg_id": 64, "translation": { "en": "The prosecution case was clear enough: when the police officer tried to stop and search KX 9176, the applicant attempted to drive away from the scene, as a result of which the police had to block Prat Avenue with an emergency unit vehicle so that the applicant could not flee. If this was indeed the case, the applicant’s attempt to flee would suggest that he had knowledge of the drug, as otherwise there would be no reason for him to have tried to avoid the stop and search by the police.", "zh-HK": "控方的立場是明確的，即警員截查KX9176時，申請人企圖駛離現場導致警員要將衝鋒車橫放在寶勒巷，令申請人無法逃離現場，假若控方的說法屬實，則申請人企圖逃離現場一事顯示申請人對毒品是知情的，否則他沒有理由要逃避警員的截查。" } }, { "doc_id": 63, "seg_id": 65, "translation": { "en": "Mr Jonathan Man, Assistant Director of Public Prosecutions for the respondent, fairly and frankly admitted that the prosecution did rely on the applicant’s attempted flight to strengthen its case that the applicant had knowledge of the drug.", "zh-HK": "代表答辯人的助理刑事檢控專員萬‍德‍豪亦公平及坦白地承認控方確有依賴申請人企圖逃離現場一事，以加強控方指申請人對毒品是知情的說法。" } }, { "doc_id": 63, "seg_id": 66, "translation": { "en": "The applicant reiterated in his evidence that he did not intend to flee at the material time. He even testified that although Yip asked him to “ignore him, just rush on”, he stopped the car as he had done nothing wrong.", "zh-HK": "申請人作供時強調在案發時他並沒有打算逃離現場。申請人甚至說葉有要求他“唔好理，衝”，但他仍然將車停下，原因是他沒有犯錯。" } }, { "doc_id": 63, "seg_id": 67, "translation": { "en": "This being the case, whether and (if so) why the applicant attempted to flee at the material time would have a material bearing on the issue of whether he had knowledge of the drug. If the prosecution case was correct, there would be a close connection between the applicant’s flight and the offence with which he was charged, the position being analogous to a defendant who lied with a view to avoiding criminal liability (See HKSAR v Mo Shiu Shing [1999] 1 HKC 43).", "zh-HK": "在上述情況下，申請人在案發時是否有逃離現場及如有的話，他逃離現場的原因和申請人對毒品是否知情有舉足輕重的影響。如控方的立場正確，則申請人逃離現場一事和他被控的罪行有緊密的聯繫，情況和一名被告人說謊是為了逃避罪責相同(見 HKSAR v Mo Shiu Shing [1999] 1 HKC 43案)。" } }, { "doc_id": 63, "seg_id": 68, "translation": { "en": "Where the prosecution relies on the fact that a defendant has lied as evidence of his guilt, or where a lie told by a defendant will strengthen the case against him, the trial judge is obliged to give the jury a “lies” direction, so as to ensure that the jury will not erroneously return a verdict adverse to the defendant on the basis of the lie (see, for example, HKSAR v Yuen Kwai Choi (2003) 6 HKCFAR 113; HKSAR v Jim Fai (2006) 9 HKCFAR 85).", "zh-HK": "如控方以被告人曾說謊，以顯示他有罪或被告人的謊言會加強控方對他的指控，原審法官必須給予陪審團“謊言”指引，以確保陪審團不會錯誤地根據被告人的謊言而對他作出不利的裁決(見HKSAR v Yuen Kwai Choi (2003) 6 HKCFAR 113; HKSAR v Jim Fai (2006) 9 HKCFAR 85等案)。" } }, { "doc_id": 63, "seg_id": 69, "translation": { "en": "In HKSAR v Chan Boon Ning CACC 571/2001, Stock JA (as he then was) said (at para.48 of his judgment):", "zh-HK": "上訴法庭法官 (當時官階)司‍徒‍敬在HKSAR v Chan Boon Ning CACC 571/2001案的判案書第 48段有以下說法:" } }, { "doc_id": 63, "seg_id": 70, "translation": { "en": "“It seems still not to be appreciated that a lies direction is reserved for the limited circumstances in which a lie is used not merely to undermine the credibility of the defence, but as in itself constituting a separate item of evidence or conduct in support of the case against the defendant, or where there is a danger that the jury might use a lie, not merely as undermining the credibility of a defence, but as itself probative of guilt.”", "zh-HK": "“有人仍不理解‘謊言指引’只在有限情況適用，即有關謊言並不單單削弱辯方的可信性，其本身更構成獨立的證據或行為，足以支持控方針對被告人的案情，或當陪審團不但可能會利用‘謊言’來削弱辯方的可信性，更可能會利用‘謊言’本身作為被告人有罪的證據。” (非官方翻譯)" } }, { "doc_id": 63, "seg_id": 71, "translation": { "en": "It is beyond doubt in the present case that the prosecution did rely on the applicant’s attempted flight at the material time, the allegation being that he had knowledge of the drug and therefore sought to flee in order to escape arrest. The trial judge should have given the jury a “flight” direction in the following terms:", "zh-HK": "在本案毫無疑問，控方有利用申請人在案發時企圖逃離現場，原因是申請人對毒品知情，故希望能逃離現場避免遭警方輯捕。原審法官須向陪審團作出“潛逃” (flight)指引，原審法官應向陪審團指出:" } }, { "doc_id": 63, "seg_id": 72, "translation": { "en": "“The prosecution alleged that the defendant attempted to flee the scene after the crime, they are therefore entitled to consider whether this supports the case brought against him by the prosecution. It is necessary for the jury to consider the following questions:", "zh-HK": "“控方指稱被告人在案發後企圖逃離現場，故他們有權考慮上述事件是否支持控方提出的指控。陪審團必須考慮以下問題:" } }, { "doc_id": 63, "seg_id": 73, "translation": { "en": "被告人是否在案發後有企圖逃離現場。如果陪審團肯定他曾這樣做，他們要繼續考慮;\tWhether the defendant did in fact attempt to flee after the crime. If the jury are sure he did, then next consider:", "zh-HK": "(一)" } }, { "doc_id": 63, "seg_id": 74, "translation": { "en": "被告人為甚麼要逃離現場？被告人曾企圖逃離現場一事本身並不足以證明他有罪，一個人可能會基於許多與犯罪無關的理由企圖逃離案發現場，例如他害怕警察，或是曾犯了一些和本案無關的罪行或其他不見得光的行為等。如果他們認為被告人企圖逃離現場的行為確實或可能是因為上述無辜的理由所導致，則陪審團不應理會他曾企圖逃離現場一事。只有陪審團能肯定被告人並非因其他無辜理由，而是因為他知悉自己犯了被指控的罪行故選擇逃離現場避免罪行暴光時，陪審團才可以視被告人試圖逃離現場的行動為支持控方指控被告人的證據。”\tWhy did the defendant flee? The mere fact that a defendant attempts to flee is not in itself evidence of guilt. There are many innocent reasons why a person may do so, for example, out of fear of the police, or due to commission of an offence unrelated to the present one or of some other disgraceful act. If the jury think that there is, or may be, an innocent explanation for his attempted flight, then they should take no notice of his attempted flight. It is only if the jury are sure that the defendant did not attempt to flee for an innocent reason, but instead did so by reason of his being aware of having committed the offence in question and hence choosing to flee in order to prevent the offence from coming to light, that they can regard his attempted flight as evidence which supports the prosecution case.”", "zh-HK": "(二)" } }, { "doc_id": 63, "seg_id": 75, "translation": { "en": "In the present case, the applicant’s attempted flight was relied on in support of the prosecution case. The trial judge’s failure to give the jury a “flight” direction constituted a material irregularity in the trial. This is tantamount to a judge’s failure to give the jury a “lies” direction where the prosecution relies on lies told by the defendant as evidence of his guilt. ; In both cases, the failure constitutes a material omission which renders the jury’s guilty verdict unsafe (see HKSAR v Sham Kit Yi & Another [2004] 2 HKLRD 407).", "zh-HK": "在本案，控方以申請人有企圖逃離現場的行為來支持控罪。原審法官沒有向陪審團作出任何＂潛逃”(flight)指引，審訊過程有重大的不當之處。該不當之處等同在控方指被告人的謊言構成該人有罪的證據時，法官沒有給予陪審團“謊言”指引，同屬重大遺漏，令陪審團的有罪裁決變得不穩妥。(見HKSAR v Sham Kit Yi & Another [2004] 2 HKLRD 407案)" } }, { "doc_id": 63, "seg_id": 76, "translation": { "en": "Mr Man invited us to dismiss the application for leave to appeal by applying the proviso, arguing that the evidence against the applicant was so overwhelming that any reasonable jury would have found the applicant guilty.", "zh-HK": "萬‍專員要求本庭行使“但書”駁回上訴許可申請。萬‍專員力稱控方針對申請人的證據是壓倒性的，任何合理的陪審團都會裁定申請人有罪。" } }, { "doc_id": 63, "seg_id": 77, "translation": { "en": "With respect, we do not agree. While it is true that the evidence against the applicant is cogent, the outcome of the case must still hinge on whether the applicant had knowledge of the drug, and there is a direct connection between the allegation of attempted flight against the applicant and his knowledge of the drug. In these circumstances, we do not agree this is an appropriate case in which to apply the proviso.", "zh-HK": "本庭不同意萬‍專員的立場。無可否認，針對申請人的罪證強而有力，但案件的裁決仍決定在申請人對毒品是否知情，而控方指申請人企圖逃離現場一事正和申請人對毒品知情一事有直接關連。在上述情況下，本庭不同意行使“但書”是合適的做法。" } }, { "doc_id": 63, "seg_id": 78, "translation": { "en": "We allow the appeal, quash the conviction and set aside the sentence. However, we agree that there is sufficient evidence against the applicant and it is only by reason of the material irregularity in the course of trial that the conviction is quashed. We therefore order that the present case be retried and that the applicant be remanded in custody pending retrial.", "zh-HK": "本庭裁定申請人上訴得直，並撤銷針對他的定罪和判刑決定。但本庭同意針對申請人的罪證充足而推翻定罪的決定全因審訊過程有重大不當之處造成。因此本庭下令案件要重審，並下令申請人要繼續拘押，等候重審安排。" } }, { "doc_id": 63, "seg_id": 79, "translation": { "en": "Mr Jonathan Man, Assistant Director of Public Prosecutions of the Department of Justice, for the respondent", "zh-HK": "答辯人： 由律政司助理刑事檢控專員萬德豪代表。" } }, { "doc_id": 63, "seg_id": 80, "translation": { "en": "由法律援助署委派盧偉強律師樓轉聘大律師蘇啟明代表。\tMr Selwyn So, instructed by Peter W. K. Lo & Co and assigned by the Legal Aid Department, for the applicant (conviction)", "zh-HK": "申請人(定罪):" } }, { "doc_id": 63, "seg_id": 81, "translation": { "en": "\t由盧偉強律師樓轉聘大律師蘇啟明代表(以義助服務形式)。\tMr Selwyn So, instructed by Peter W. K. Lo & Co and assigned by the Free Legal Service Scheme, for the applicant (sentence)", "zh-HK": "申請人(判刑):" } }, { "doc_id": 64, "seg_id": 1, "translation": { "en": "Hon Chu JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官朱芬齡頒發上訴法庭判案書：" } }, { "doc_id": 64, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 64, "seg_id": 3, "translation": { "en": "The applicant was convicted after trial by District Judge Gary Lam, (“the trial judge”) of two counts of robbery and two counts of theft.", "zh-HK": "申請人在區域法院法官林嘉欣（「原審法官」）席前經審訊後被裁定兩項「搶劫」罪和兩項「盜竊」罪罪名成立。" } }, { "doc_id": 64, "seg_id": 4, "translation": { "en": "On 24 April 2014, the trial judge sentenced the applicant for each count of robbery to imprisonment of 5 years and 6 months, both terms were to run concurrently; and, for each count of theft to imprisonment of 1 year, both terms also to run concurrently, but 3 months out of each of these two terms were to run consecutively to the sentences of the two counts of robbery, making a total sentence of 6 years’ imprisonment.", "zh-HK": "2014‍年4月24日，原審法官判處申請人就每項「搶劫」罪入獄5年6個月，同期執行，及每項「盜竊」罪入獄1年，同期執行，但這兩項刑期中的3個月監禁與兩項「搶劫」罪的刑期分期執行，總刑期是6年監禁。" } }, { "doc_id": 64, "seg_id": 5, "translation": { "en": "The applicant applied for leave to appeal against conviction.", "zh-HK": "申請人就定罪裁決提出上訴許可申請。" } }, { "doc_id": 64, "seg_id": 6, "translation": { "en": "This was a case of robbery which took place on residential premises. The victims were two sisters, Grace and Joyce. The place where the crime was committed was their residence, a 3-storeyed villa in Kowloon Tong.", "zh-HK": "這是一宗入屋行劫案。案中兩名事主是兩名姊妹Grace和Joyce。涉案單位是她們位於九龍塘的一幢三層高平房的居所。" } }, { "doc_id": 64, "seg_id": 7, "translation": { "en": "The case occurred at about 4 am on 11 September 2013. At that time a male robber, armed with a knife, entered the victims’ home and robbed them of the properties referred to in the particulars of the two robbery charges, including the items belonged to Grace, namely 5 necklaces, 4 pendants, 20 Swiss Francs, one HSBC ATM card; and the items belonged to Joyce, namely HK$500, RMB¥10,000, Euro€100 and one HSBC ATM card. The robber demanded that the two victims give him the PIN numbers of their bank accounts and subsequently withdrew $20,000 from each of their bank accounts, which sums were the properties involved in the two theft charges.", "zh-HK": "案發於2013年9月11日凌晨約4時。當時有一名男賊人持刀進入事主的居所行劫，劫去了兩項「搶劫」罪所述的財物，包括屬於Grace的5條頸鍊、4個吊墜、20瑞士法郎和一張香港上海滙豐銀行提款卡，及屬於Joyce的港幣500元、人民幣10,000‍元、100歐羅和一張香港上海滙豐銀行的提款卡。該名賊人要求兩名事主提供她們銀行戶口的密碼，並稍後從她們的銀行戶口分別提取20,000元，即兩項「盜竊」罪所涉的財物。" } }, { "doc_id": 64, "seg_id": 8, "translation": { "en": "The applicant was arrested on 19 October 2013.", "zh-HK": "申請人在2013年10月19日被拘捕。" } }, { "doc_id": 64, "seg_id": 9, "translation": { "en": "On 21 October 2013, Joyce identified the applicant from among the people who formed an identification parade as the robber who committed the robbery in her home.", "zh-HK": "2013年10月21日，Joyce在警署認人行列中，認出申請人為入屋行劫的賊人。" } }, { "doc_id": 64, "seg_id": 10, "translation": { "en": "At the trial, the defence did not dispute that the two victims were robbed in their home by a robber and that the robber later stole their money from their bank accounts. The issue raised by the defence was whether the applicant was the robber who perpetrated these crimes. The crucial points in this case were whether the identification evidence of Joyce was admissible and whether her identification evidence was reliable so that the prosecution was able to prove that the applicant committed all the offences beyond reasonable doubt.", "zh-HK": "在審訊時，辯方不爭議兩名事主遭賊人入屋行劫，及賊人其後從她們的銀行盜取了款項。辯方的爭議是申請人是否涉案的賊人。案中的關鍵點是Joyce的認人證供是否可以被採納為證據，以及Joyce的認人證據是否可靠，以致控方能在無合理疑點下證明申請人干犯了所有控罪。" } }, { "doc_id": 64, "seg_id": 11, "translation": { "en": "Evidence in this case", "zh-HK": "案中的證據" } }, { "doc_id": 64, "seg_id": 12, "translation": { "en": "The prosecution evidence in this case showed that at the material time Grace and Joyce were sleeping in their respective bedrooms on the second storey of the villa. Grace woke up and saw a man standing at the door of her room. The man was wearing a cap, a breathing mask, black upper garment and a pair of trousers. His hands were in gloves. He was 45 to 50 years old, holding an electric torch in his left hand and a chopper in his right hand. This man said to Grace in pure Cantonese, “I am here for money. Take out every valuable thing in your home. I won’t hurt you”. Grace gave him her ornaments. She succumbed to his demand and surrendered 20 Swiss Francs and her ATM card to him, and also wrote down the PIN number of her bank account on a slip of paper and gave it to him.", "zh-HK": "案中控方的證據顯示，案發時Grace和Joyce分別在她們位於涉案平房二樓的睡房睡覺。期間Grace醒來看見一名男子站在房門口。他載著帽和口罩，穿黑色上衣和長褲，雙手戴上手套，年齡約45至50歲，左手拿電筒，右手拿著一把菜刀。這人以純正廣東話對Grace說：「我嚟求財嘅，將屋企值錢嘅攞晒出嚟，我唔會傷害你。」Grace把她的手飾交給該男子後，又按他的要求交出了20法郎和銀行提款卡給他，及把銀行戶口密碼寫在紙上交給他。" } }, { "doc_id": 64, "seg_id": 13, "translation": { "en": "After that, as demanded by the man, Grace took him to the bedroom of Joyce. She opened the door of the room, woke Joyce up and told her about the robbery. The man said to Joyce, “ATM card, issued by the HSBC, can be used to withdraw $20,000”, and he added, “Don’t be afraid; I won’t hurt you people.” Joyce said that she had to go upstairs to get the money. Then the three of them went from Joyce’s bedroom to a room on the third storey. Joyce surrendered some money in a foreign currency, some Renminbi and some Hong Kong money. Then the man told them to return to Joyce’s bedroom, and then he made a demand to Joyce for her ATM card. Joyce said that she had to go downstairs to fetch it. Then the three persons left Joyce’s bedroom. When Joyce picked up a handbag in the sitting room, Grace and the man were standing on the staircase. Subsequently, they returned to Joyce’s bedroom. Joyce surrendered to him an ATM card and a slip of paper on which she wrote the PIN number of her bank account.", "zh-HK": "之後，Grace應該男子的要求，帶他到Joyce的睡房。Grace打開Joyce睡房房門，叫醒Joyce，告訴她被打劫。該男子對Joyce說：「提款卡，滙豐嘅，要撳到20,000蚊嘅」，及「唔使驚，我唔會傷害你哋嘅」。由於Joyce表示要到樓上拿錢，他們一行三人便從Joyce的睡房去到三樓一間房間。Joyce把一些外幣、人民幣和港幣交出，該男子之後指示她們回到Joyce的睡房。該男子再向Joyce索取銀行提款卡，Joyce表示要到樓下拿取，於是他們一行三人便離開Joyce的睡房。當Joyce在客廳取手袋時，Grace和該男子站在樓梯。他們之後回到Joyce的睡房。Joyce交出了銀行提款卡，及把銀行戶口密碼寫在紙上，交給該男子。" } }, { "doc_id": 64, "seg_id": 14, "translation": { "en": "The man then told Grace and Joyce to go to bed to sleep. He said that he would wait outside the room for his partner to withdraw the money and after that he would leave, but that they would not know when he left. Grace and Joyce asked him to leave as soon as possible. Joyce further said that she had to work in the morning and that she needed to sleep. The man then took away the two sisters’ mobile phones. He said that he would put them somewhere in the house and that they could look for them themselves after he left.", "zh-HK": "該男子之後指示Grace和Joyce到牀上睡覺，並說他會在房間外等候他的拍檔去提款後才離去，但她們不會知道他何時離開。Grace和Joyce要求該男子儘快離開；Joyce更表示早上要工作，需要睡覺休息。該男子接著取去兩姊妹的手提電話，說會把它們隨意放在屋內，著她們在他離開後自行尋找。" } }, { "doc_id": 64, "seg_id": 15, "translation": { "en": "Several minutes after the man went out of the bedroom, Joyce called him but there was no reply. When they were sure that the robber had left, they called the police.", "zh-HK": "在該男子從睡房出去數分鐘後，Joyce叫喚該男子但沒有回應，她們斷定賊人已離開，便報警求助。" } }, { "doc_id": 64, "seg_id": 16, "translation": { "en": "On 21 October 2013, the police arranged for an identification parade to be held in a police station. Detective Sergeant 10859 (PW3), before taking the applicant to the police station, obtained confirmation from him that he was willing to appear on the identification parade and that he did not require a lawyer to be present at the parade. PW3 gave him a Notice To Suspect, which was a notice supplied to a suspect who was to attend an identification parade (exhibit P9). The applicant indicated that he could read and after he read P9 for about two minutes, PW3 asked him whether he understood and was clear about its content. The applicant answered, “Clear, understand” and signed on P9 to confirm that.", "zh-HK": "2013年10月21日，警方在警署安排了列隊認人手續。偵緝警長10859（PW3）在帶申請人到警署前，向他確認是願意參加認人手續，及他不需要律師在場。PW3亦交給他一份參與認人行列的疑犯須知通知書（證物P9）。在申請人表示能閱讀，及在他閱讀了P9約兩分鐘後，PW3問申請人是否清楚明白內容。申請人回答「清楚，明白」，之後在P9簽名作實。" } }, { "doc_id": 64, "seg_id": 17, "translation": { "en": "The officer-in-charge of the parade was Chief Inspector Ng (PW4). The whole process was video recorded. The video recording (P4) was played at the trial. The Identification Parade Book and its Chinese translation were produced as exhibits (P3 and P3A). Before the identification procedure began, PW4 confirmed with the applicant that he did not require the presence of a lawyer and that he had read P9 and had received a copy of it. The applicant told PW4 that he was clear about and understood its content and was willing to appear on the identification parade.", "zh-HK": "列隊認人手續由吳總督察（PW4）主持。整個過程被攝錄，錄影記錄（證物P4）在原審時曾播放，而「認人手續記錄簿」及其中文譯本亦呈堂為證物（P3和P3A）。在開始認人手續前，PW4向申請人確認了他不需要律師在場，及他已閱讀P9及收到一份副本。申請人向PW4表示清楚明白內容及願意參與列隊認人。" } }, { "doc_id": 64, "seg_id": 18, "translation": { "en": "When Joyce inspected the parade, she requested that each man on the parade be asked to say one sentence, “Don’t be afraid; I won’t hurt you people.” PW4 asked her why she made this request. She replied that at the material time she had talked with the robber for a long time. PW4 acceded to her request. When it came to the applicant’s turn, Joyce asked him to say the sentence three times. Subsequently, she reported to PW4 that she recognized that the applicant, who was standing at position 7, was the robber who robbed her and Grace that night. When PW4 informed the applicant that he was identified, he said, “I have nothing to say.”", "zh-HK": "Joyce在進行列隊認人時，要求行列中的各人說一句話：「唔使驚，我唔會傷害你哋嘅」。PW4向她查詢她提出要求的原因後，Joyce回答案發時曾與賊人有長時間對話。PW4同意她的要求。在輪到申請人時，Joyce要求他重複句子三次。Joyce之後告訴PW4辨認出站在7號位置的申請人是當晚行劫她和Grace的賊人。當PW4通知申請人他被認出時，申請人回答說：「無嘢講」。" } }, { "doc_id": 64, "seg_id": 19, "translation": { "en": "At the trial, the applicant objected to the prosecution’s production of the evidence that Joyce picked him out from the identification parade. The reasons he offered were that he provided his voice sample for identification by Joyce in circumstances under which he was unwilling to do so, and that to ask him to say that sentence was a violation of the right against self-incrimination and the right to remain silent.", "zh-HK": "申請人在審訊時反對控方提出Joyce在認人行列中認出他的證據，理由是他是在不自願的情況下，提供自己的聲音供Joyce辨認，而且要求他說出該句子是違反「免自證有罪」的權利（right against self-incrimination）及「保持緘默」的權利（right to remain silent）。" } }, { "doc_id": 64, "seg_id": 20, "translation": { "en": "The trial judge adopted the alternative procedure in dealing with this issue. The applicant elected to give evidence but did not call any witness. The applicant’s evidence was that although he received P9 and signed on it, he did not read the content and did not know that he might be required to say something for the purpose of voice identification. He said that although he was willing to take part in the identification parade, he was not willing to participate in the part involving voice identification.", "zh-HK": "原審法官採用了交替程序處理這項爭議。申請人選擇作供，沒有傳召證人。申請人的證供指雖然收到P9及在其上簽名，但他沒有閱讀內容，不知道可能要說話以辨別聲音。申請人也表示他雖然願意參加列隊認人手續，但卻不願意參與聲音辨認的部分。" } }, { "doc_id": 64, "seg_id": 21, "translation": { "en": "In relation to the general issue the applicant elected not to give evidence and he did not call any witness either.", "zh-HK": "申請人就一般事項選擇不作供，亦沒有傳召證人。" } }, { "doc_id": 64, "seg_id": 22, "translation": { "en": "Findings made by the trial judge", "zh-HK": "原審法官的裁定" } }, { "doc_id": 64, "seg_id": 23, "translation": { "en": "In respect of the special issue, the trial judge found that both PW3 and PW4 were honest and credible and he accepted their evidence. He found that although they did not read out the content of P9 to the applicant, they did issue a copy of P9 to the applicant and allowed him to read its content himself. The trial judge rejected the applicant’s evidence. He did not believe that he did not read P9 and was not aware of the rights enjoyed by a suspect who attended an identification parade. The trial judge found that the applicant had read P9, that he was aware of its content and that he had learnt from paragraph 4(f) thereof that in the course of the identification parade, he might be asked to speak for the purpose of hearing his voice. The trial judge also rejected the applicant’s assertion that he was not willing to provide his voice sample for the purpose of identification. The trial judge pointed out that even though the police did not expressly tell the applicant that he could refuse to comply with the request for the provision of his voice sample, judging from the fact that he had made request two times concerning the arrangements for the holding of the identification parade (namely: (1) to pull down the shower caps worn by members of the parade in order to cover their ears; and (2) to cover their left eyes), it could be seen that he knew that he had the right to challenge or make requests concerning the actual arrangements for the holding of the identification parade. The trial judge found that if the applicant had not been willing to say anything to let the witness to identify his voice, he would surely have made it known and would have refused to do so. However, when he was asked to speak, he did not object; and when he was informed that he was identified by Joyce, he did not make any protest. The trial judge found that the applicant voluntarily took part in the identification parade procedure, including the uttering of the sentence in order that the witness could try to identify his voice.", "zh-HK": "就特別事項，原審法官裁定PW3和PW4是誠實可信，接納他們的證供，裁定他們雖然沒有向申請人讀出P9的內容，但已向申請人發出P9和一份副本，且讓申請人自行閱讀內容。原審法官拒絕信納申請人的證供，不相信他沒有閱讀P9和不知道它所載有關參與列隊認人手續的疑犯的權利。原審法官裁定申請人曾閱讀P9，知悉其內容，亦從其中第4(f)段知悉在進行列隊認人時，有可能被要求說話，辨別他的聲音。原審法官亦拒絕接納申請人不願意提供聲音作辨別的說法。原審法官指出，雖然警方沒有明言告訴申請人可以拒絕提供聲音的要求，但從申請人兩度向PW4提出有關進行列隊認人安排的要求（即：(1) 把行列中各人所戴的浴帽拉下遮蓋耳朶；及(2)遮蓋左眼），可見他瞭解有權對進行認人手續時的具體安排提出質疑或要求。原審法官裁定，假若申請人不願意說話，讓證人辨別他的聲音，他必會表達或拒絕，然而當他被要求說話時，申請人沒有提出反對，當他被告知Joyce認出他時，申請人亦沒有任何抗議。原審法官裁斷申請人是在自願的情況下，參加列隊認人手續，包括說話讓證人辨別聲音。" } }, { "doc_id": 64, "seg_id": 24, "translation": { "en": "Furthermore, having considered paragraphs 31 and 35 of McFadden v H M Advocate [2009] HCJAC 78, the trial judge found that the sentence which the applicant was asked to say in the course of the identification parade did not constitute any form of confession, that the content of the sentence would not incriminate him, and that therefore there was no violation of the right against self-incrimination or the right to remain silent.", "zh-HK": "此外，原審法官經考慮McFadden v H M Advocate [2009] HCJAC 78，第31和35段後，裁定申請人在列隊認人過程中被要求說的說話，不構成任何形式的招認，該段說話的內容不會使他入罪，故此沒有抵觸「免自證有罪」及「保持緘默」兩項權利。" } }, { "doc_id": 64, "seg_id": 25, "translation": { "en": "The trial judge did not agree that because PW4, in the course of the identification parade, did not ascertain beforehand whether every member of the parade spoke with roughly the same accent and because most of the people failed to say the sentence in question accurately, the identification parade was conducted unfairly and the applicant suffered an injustice. The trial judge considered that there was no reason for him to exercise his discretion to reject the evidence concerning the conduct and the result of the identification parade. He ruled that the evidence relating to that part and exhibits P3, P3A and P4 were admissible evidence.", "zh-HK": "原審法官亦不同意，PW4在認人過程中沒有先確立認人行列中各人的口音是否大致相若，以及大部分人都未能準確地說出有關的說話，使列隊認人過程欠公平，對申請人造成不公。原審法官也認為沒有任何理由行使酌情權力，拒絕採納列隊認人過程和結果的證據。原審法官裁定該部分的證供以及證物P3、P3A和P4可被呈堂作為案中的證據。" } }, { "doc_id": 64, "seg_id": 26, "translation": { "en": "As for the general issue, the trial judge found that the only reasonable inference was that the robber who entered Grace and Joyce’s home to rob was also the culprit who subsequently used their ATM cards and their PIN numbers to withdraw $20,000 cash from each of their accounts.", "zh-HK": "就一般事項，原審法官裁斷，唯一合理的推論是進入Grace和Joyce家中行劫的賊人，亦是其後利用她們的提款卡和戶口密碼，從她們的銀行戶口分別提取20,000元現金的賊人。" } }, { "doc_id": 64, "seg_id": 27, "translation": { "en": "In respect of the issue as to whether the applicant was the robber, the trial judge pointed out that the only piece of evidence which was against the applicant was the result of Joyce’s inspecting the identification parade, and that therefore the factual issue concerning the credibility and reliability of the identification made by Joyce was the linchpin of this case.", "zh-HK": "有關申請人是否該名賊人這項爭議，原審法官指出，唯一能指證申請人的證據，是Joyce在列隊認人手續的結果。因此，Joyce認人的可信性和可靠性是案中關鍵的事實爭議。" } }, { "doc_id": 64, "seg_id": 28, "translation": { "en": "The trial judge reminded himself of the legal principles laid down in R v Turnbull [1976] 63 Cr App R 132, and of the dangers of solely relying on identification evidence to convict. He also stated that when he considered evidence of identification by voice, he proceeded in accordance with the relevant direction given in a jury trial.", "zh-HK": "原審法官提醒自己須謹記R v Turnbull [1976] 63 Cr App R 132所訂的法律原則，及單純依賴認人證據定罪的危險性。原審法官亦提及在考慮有關辨認聲音的證據時，他會按相關的陪審團指引行事。" } }, { "doc_id": 64, "seg_id": 29, "translation": { "en": "The trial judge commented that the circumstances in which Joyce observed the face of the robber that night were less than satisfactory, because the robber was wearing a cap and a breathing mask, the lighting at the scene was insufficient and Joyce did not look closely at the face of the robber for a significant length of time. However, at the same time he pointed out that in the course of the robbery, which lasted 25 to 30 minutes, Joyce kept on talking with the robber. At that time, the environment was quiet without any interfering noise, so that Joyce was able to hear clearly what the robber said.", "zh-HK": "原審法官指出，Joyce當晚觀察賊人樣貌的環境不儘理想，因為賊人戴了帽和口罩，現場光線不足，及Joyce不是長時間注視賊人的樣貌。但原審法官同時指出，在整個大約25至30分鐘的行劫過程中，Joyce與賊人不斷地對話，當時四週環境寧靜，沒有雜音，Joyce可以清楚聽見賊人的說話。" } }, { "doc_id": 64, "seg_id": 30, "translation": { "en": "The trial judge analysed the evidence which underlay Joyce’s identifying the applicant as the robber. He noticed that Joyce satisfied herself that four features, namely the height, build, right eye and voice of the applicant all matched those of the robber before she concluded that the applicant was the robber who robbed them in the house that night. The trial judge also took into account Joyce’s evidence that she was a professional drama director and actor, that she had studied in a special course about voice, and that therefore she was accustomed to engage in various activities in a dark environment (such as the backstage) and was particularly sensitive to sounds, so much so that she was capable of analysing and distinguishing the vocalization, pronunciation, intonation and tone of different people. Moreover, because her job involved choosing different people to play different roles, she was used to recognizing and remembering the voices of strangers and their relevant special features. The trial judge also mentioned that Joyce said in her evidence that in the course of the identification parade, when the applicant uttered the sentence specified by her, the spontaneous bodily reactions which she experienced (ie her body trembled and her heart thumped) strengthened her belief that the applicant was the robber who entered her house to rob.", "zh-HK": "原審法官分析Joyce有關辨認出申請人為賊人的基礎的證據，他注意到Joyce是確定申請人的身高、身型、右眼和聲音這四項元素都與賊人吻合，才認定申請人是當晚入屋行劫的賊人。原審法官亦考慮了Joyce作供時提及她是專業舞台劇導演和演員，曾修讀「聲學」（voice），因此習慣在黑暗的環境（如後台）活動，對聲音特別敏感，有能力分析和分辨不同人的發聲、咬字、語調、語氣，以及她因工作涉及角色輪選而習慣認清和記憶陌生人的聲音和相關的特質。原審法官也提及Joyce作供時說，在列隊認人時，當申請人說出她指定的句子時，她的身體出現了自然反應（即擅抖及心秤然跳動），使她更深信不疑申請人便是入屋行劫的賊人。" } }, { "doc_id": 64, "seg_id": 31, "translation": { "en": "Having analysed and examined Joyce’s evidence, the trial judge was satisfied that the reasons she gave for being able to identify the applicant were sufficient, logical and reasonable. Therefore, he found that the credibility and reliability of her identification evidence was beyond doubt and he accepted it entirely. As a result, he held that the applicant was undoubtedly the robber who robbed the victims in their house and the culprit who stole the money from their bank accounts, and he convicted him of the four offences accordingly.", "zh-HK": "經分析和考慮Joyce的證供，原審法官認為她辨認出申請人的理據充分，合情合理，從而裁斷她的辨認證供的可信性和可靠性無可置疑，並完全予以信納。原審法官因此裁定，毫無疑問申請人是入屋行劫和從銀行戶口盜取款項的賊人，故判決申請人4項控罪罪名成立。" } }, { "doc_id": 64, "seg_id": 32, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 64, "seg_id": 33, "translation": { "en": "The applicant put forward two grounds of appeal as follows:", "zh-HK": "申請人提出兩項上訴理由如下：" } }, { "doc_id": 64, "seg_id": 34, "translation": { "en": "The prosecution violated the common law principle against self-incrimination and the defendant’s right to remain silent in that the evidence as to voice identification which took place during the identification parade was elicited without the consent of the applicant. The trial judge committed an error of law in finding that such evidence was admissible.", "zh-HK": "控方有關在列隊認人過程中聲音辨認的證據是在未徵得申請人同意下取得，違反了「免自證有罪」的普通法原則，也違反了「被告人有權保持緘默」的原則。原審法官把它採納為案中的證據犯上法律錯誤。" } }, { "doc_id": 64, "seg_id": 35, "translation": { "en": "The trial judge, while recognizing that the evidence concerning identification by appearance was unsatisfactory, relied on evidence of identification by voice and found that the identification evidence in the present case was sufficient to support a guilty verdict. In doing so, he overlooked the fact that voice comprised only 55% of the totality of Joyce’s identification evidence, thus the guilty verdict was not reached where there was no reasonable doubt, and the conviction was unsafe.", "zh-HK": "原審法官既確認樣貌辨認的證據不理想，卻依賴聲音辨認的證據裁定案中辨認的證據足以支持有罪的裁決，但他忽略了聲音只佔Joyce整個辨認證據中的55%，因此定罪裁決並非在毫無合理疑點下作出，故定罪並不穩妥。" } }, { "doc_id": 64, "seg_id": 36, "translation": { "en": "Ground of appeal (1)", "zh-HK": "第(1)項上訴理由" } }, { "doc_id": 64, "seg_id": 37, "translation": { "en": "In support of ground of appeal (1), Mr Ma, counsel for the applicant, advanced two arguments. His first argument was that the sentence (“Don’t be afraid, I won’t hurt you people.”) which the applicant was asked to say in the course of the identification parade, was one of the utterances which the robber uttered to the witness during the robbery. To ask every member of the parade to say this sentence was to let the witness to make comparison to see if any person’s voice was similar to the robber’s. According to him, this was tantamount to take a breath sample, a blood sample or a DNA sample from a suspect for the purpose of examining it to see whether it matched a sample collected at a scene of crime. Mr Ma further said that there were stringent requirements under the law about how to collect intimate samples from a suspect, and that the consent of the suspect was required, otherwise it was necessary to obtain authorization from a high ranking police officer or a judicial officer before this step could be taken; but that at present in Hong Kong there was no legal provision which governed the procedure of taking voice samples from a suspect. Mr Ma’s submission was that if a suspect was just asked to say some words or phrases which had no relevance to the case under investigation for a witness to hear his accent and intonation, then it might not constitute a confession; but that if, as what happened in the present case, a suspect was asked to say what a culprit involved in the case had said, then it was equivalent to a reconstruction of the crime, and that it necessarily constituted a confession. For this reason, he asserted that to ask the applicant to say the words in question in order to collect his voice sample to let the witness to identify it without informing him that the identification parade included the voice identification part was a breach of the legal principle against self-incrimination and a violation of the right to remain silent.", "zh-HK": "就第(1)項上訴理由，代表申請人的馬大律師提出兩點論據。他的第一點論據指申請人在列隊認人過程中被要求說的句子（「唔使驚，我唔會傷害你哋嘅」），是賊人行劫時向證人說的其中一句話，要求認人行列中的各人說這句話是要讓證人作出比較，看看是否像賊人的聲音，這等同向疑犯收集酒精吹氣樣本、血液或脫氧核糖核酸（DNA）樣本，以便核對是否與從犯案現場採集到的樣本吻合。馬大律師進一步指出，法律對從疑犯收集體內樣本有嚴格規定，必須得到疑犯同意，否則要由高級警務人員或司法人員批令才可進行。然而，現時香港沒有法律監管向疑犯收集聲音樣本的過程。馬大律師的陳詞是：如果只是要求疑犯說一些與案無關的句子，以供證人考慮其口音、語調，則未必構成一項招認。但是，若如本案的情況，疑犯被要求說出案中賊人說過的話，則等同案件重演，必然構成一項招認。因此，在沒有通知申請人列隊認人過程中有聲音辨認的部分的情況下，要求申請人說話以收集他的聲音樣本供證人辨認，是違反「免自證有罪」的法律原則，及「保持緘默」的權利。" } }, { "doc_id": 64, "seg_id": 38, "translation": { "en": "In our judgment, this argument was the result of overlooking the factual findings made by the trial judge and the nature of the identification parade held in the present case. The trial judge made the following findings of fact in relation to the special issue: (1) The applicant had read exhibit P9 and was clear about and understood its content, including paragraph 4(f); (2) He therefore knew that during the identification parade he might be asked by a witness to speak for the purpose of hearing his voice; (3) The applicant clearly understood what rights he had in the course of the identification parade, including the right to give opinions and make requests about the relevant arrangements; and (4) When he was asked to speak in order to let Joyce hear his voice, he did not raise any objection, make any challenge or protest; nor did he complain in any way when he was informed of the result of the identification. Therefore, the trial judge drew the conclusion that the applicant voluntarily took part in the identification parade, including the saying of certain words to let a witness hear his voice.", "zh-HK": "本庭認為，這項論據忽略了原審法官的事實裁斷和本案列隊認人手續的性質。原審法官就特別事項的事實裁決是：(1) 申請人已閱讀過證物P9，清楚明白其內容，包括第4(f)條；(2) 所以他是知悉在進行列隊認人手續時，證人有可能要求他說話，以辨別他的聲音；(3) 申請人清楚瞭解他在列隊認人過程中的權利，包括可以對相關的安排提出意見和要求；以及(4)他在被要求說話讓Joyce辨別他的聲音時，沒有表示反對或提出質疑、抗議，在獲告知辨認的結果時亦沒有作出投訴。原審法官因此總論，申請人是自願參與列隊認人手續，包括說話讓證人辨別他的聲音。" } }, { "doc_id": 64, "seg_id": 39, "translation": { "en": "The applicant’s ground of appeal made no reference to the above findings of fact (1) to (4) made by the trial judge. Mr Ma’s submission did not address the conclusion drawn about the fact that the applicant voluntarily took part in the identification parade and voluntarily said those words to let the witness hear his voice. Mr Ma obviously understood that these factual findings were made on the basis of the trial judge’s assessment and judgment of the trustworthiness of PW3, PW4 and the applicant as witnesses and the credibility of their evidence. A well-established legal principle is that an appellate court should not lightly interfere with the assessment made by the trial judge in respect of the witnesses and the evidence and the findings of fact derived from such assessment.", "zh-HK": "申請人的上訴理由沒有針對原審法官上述的第(1)至(4)項事實裁斷。馬大律師的陳詞亦沒有針對申請人是自願參與列隊認人手續，及自願說話供證人辨別他的聲音這項事實的結論。馬大律師顯然明白，原審法官這些事實的裁斷，是基於對PW3、PW4及申請人作為證人的誠信，及他們證言可信程度的評估和裁斷。明確的法律原則是：上訴法庭不輕易干預原審法官對證人和證言的評估，以及由此達致有關的事實的結論。" } }, { "doc_id": 64, "seg_id": 40, "translation": { "en": "In view of the above-mentioned findings of fact made by the trial judge, Mr Ma’s submission that prior to the carrying out of the voice identification, the applicant had not been informed that there would be such an arrangement and he had not consented lacked factual support.", "zh-HK": "有鑑於上文述及的原審法官的事實裁斷，馬大律師有關在進行聲音辨認前，沒有通知申請人會有這樣的程序及沒有徵得他同意這些陳詞，欠缺事實基礎的支持。" } }, { "doc_id": 64, "seg_id": 41, "translation": { "en": "In addition, the procedure in which the applicant took part was an identification parade, not a procedure which involved no visual identification but purely about voice identification. Joyce asked members of the parade to say something to let her hear their voice. Essentially, such a request was no different from a request made by a witness when he asked members of the parade to show him a certain side of their faces or bodies, their hands, their legs or other parts of their bodies for him to make identification. That which Joyce relied on to pick out the applicant was not the content of what he said, but the special features of his voice, including the volume, pronunciation, intonation and tone. The applicant was only asked to provide a voice sample, not substantive information in relation to certain questions. Such being the case, the evidence obtained was the applicant’s voice, not the content of what he said. Mr Ma argued that to ask the applicant to say what the robber said during the commission of the crime was equivalent to reconstructing the crime and that it constituted a confession. We consider that it was a wrong analogy. The sentence said by the applicant during the identification parade was said at the request of Joyce. His saying the sentence was not equivalent to his admitting that the robber did say the sentence during the commission of the crime, and still less was it equivalent to his admitting that he did say the sentence to Joyce. The content of the sentence would not constitute evidence adverse to the applicant.", "zh-HK": "再者，申請人參與的是列隊認人手續，不是一項不涉及目視認人，而純粹以聲音認人的手續。Joyce要求認人行列中的人士說話，提供聲音讓她辨認，在本質上，無異於一名證人要求認人行列中的人士展視側面輪廓、手、腳或身體某些部位以作辨認。Joyce賴以辨認出申請人的不是他說話的內容，而是他聲音的特質，包括聲線、發音、語調、語氣等。申請人祇是被要求提供聲音樣本，而不是被要求向一些問題提供具體的資料。因此，作為案中證據者是申請人的聲音，而不是他所說話的內容。馬大律師陳詞說，要求申請人說出賊人犯案時說過的話，等同案件重組，構成一項招認，本庭認為引喻失當。申請人在列隊認人過程中所說的句子，是應Joyce的要求說的，不會等同他承認賊人犯案時說過這話，更不等同承認他曾向Joyce說過這句話，這句話的內容不會構成對申請人不利的證據。" } }, { "doc_id": 64, "seg_id": 42, "translation": { "en": "In McFadden v HM Advocate [2009] HCJAC 78, the two appellants were convicted of assault and of murder. One of the appellants took part in an identification parade, during which two witnesses asked members of the parade to say something which other [sic] witnesses heard an assailant say at the material time. Subsequently, both witnesses identified the appellant. The appellant submitted that the trial judge should not have admitted evidence concerning the identification parade because: (1) There was no legal foundation for conducting voice identification during an identification parade and there was a lack of proper procedural safeguards; and (2) The practice of requesting a suspect to speak during an identification parade was a violation of the right to silence and the right not to incriminate oneself. The High Court of Justiciary of Scotland dismissed the appellants’ appeal. In relation to ground of appeal (1), the Court held that the practice of requesting members of an identification parade to say some words or phrases for voice identification during the parade was well established, and the possibility of such a request being made was referred to in the notice supplied to a suspect who took part in the identification parade, and that the European Court of Human Rights had held that the use of voice samples obtained during the course of an investigation of a crime was a legitimate means of identifying an individual. As for ground of appeal (2), the Court held that the right to silence and the right not to incriminate oneself related to the right of a suspect not to be compelled to answer substantive questions concerning a crime, but that the taking of a voice sample did not focus on substantive content, but on the timbre of a voice, intonation, accent, pronunciation and other features sufficient to identify an individual who said certain words or phrases, that such procedure operated in the same way as making identification by relying on facial features, hair colour, build, fingerprints, and DNA taken from blood, hair or skin samples, and that the use of voice samples as evidence in a criminal trial did not contravene the right to silence or the right not to incriminate oneself .", "zh-HK": "在McFadden v HM Advocate [2009] HCJAC 78案，兩名上訴人被裁定毆打和謀殺罪名成立。其中一名上訴人曾參與一項列隊認人手續，期間有兩名證人分別要求認人行列中的人士說話，所說的是案發時其他證人聽到行兇者說過的話。之後，兩名證人分別認出上訴人。上訴人提出，原審法官不應接納列隊認人手續的證供，理由是：(1)在列隊認人時進行聲音辨認欠缺法理基礎和在程序上對疑犯沒有適當保障，以及(2)在列隊認人時要求疑犯說話，違反了保持緘默和免自證有罪的權利。蘇格蘭上訴法庭拒絕上訴人的上訴。就第(1)項上訴理由，它指出，在列隊認人過程中要求參與人士說話以進行聲音辨認是素來都有的做法，給予參與列隊認人手續的疑犯的通知亦有提及這個可能性，而歐洲人權法庭的判決亦認為，在刑事調查中向疑犯收集聲音樣本作辨認之用，是合法的。就第(2)項上訴理由，蘇格蘭上訴法庭裁定，緘默權和免自證有罪的權利是指不可强逼疑犯回答與罪案有關的具體問題，然而聲音樣本的重點不在於所涉說話的具體內容，而在於該聲音的特質、音調、口音、發音及其他足以辨認說話者的特徵，情況猶如一個人的面部特徵、頭髮顏色、身材、指模及從血液、頭髮或皮膚樣本收集DNA；在刑事審訊中引用聲音樣本等證據不抵觸緘默權和免自證有罪的權利。" } }, { "doc_id": 64, "seg_id": 43, "translation": { "en": "In our judgment, the analysis in McFadden v HM Advocate is also applicable to the present case. As pointed out by Mr Tam, SC, acting for the respondent, voice is one of the factors by which a person can be identified. All along, a witness who views an identification parade can ask members of the parade to say something for him to make voice identification, and this is a reasonable request. It is expressly stated in paragraph 4(f) of the notice issued to a suspect who takes part in an identification parade that in the process he may be asked by a witness to speak for the purpose of hearing his voice. The applicant read the notice, clearly understood its content and what rights he had, and after that he was willing to take part in the identification parade and was also willing to participate in the voice identification part which took place in the course of the identification parade. In these circumstances, the applicant suffered no unfairness when he and other members of the parade were asked to say those words and there was no violation of his right to silence or his right against self-incrimination.", "zh-HK": "本庭認為，上述McFadden v HM Advocate案中的分析亦適用於本案。如代表答辯人的覃資深大律師指出，聲音可以是辨認他人的一個元素，參與列隊認人的證人從來都可以要求認人行列中的人士說話讓他作出辨認，這亦是一項合理要求。發給參與列隊認人手續的疑犯的通知書中的第4(f) 段亦清楚說明，在過程中證人有可能會要求他說話，提供聲音作辨認。申請人在閱讀過通知書，清楚明白其內容和權利後，願意參與列隊認人手續，亦願意參與過程中的聲音辨別部分。在此情況下，在列隊認人手續中要求申請人和認人行列中的人士說話，沒有對申請人不公平，亦不抵觸申請人的緘默權和免自證有罪的權利。" } }, { "doc_id": 64, "seg_id": 44, "translation": { "en": "The second argument advanced by Mr Ma was that the use of Joyce’s voice identification evidence was against procedural justice. He submitted that most of the members of the identification parade could not utter the sentence specified by Joyce with complete accuracy. On that day, the parade consisted of nine people, including the applicant. Except actor number 2, everyone said, “Ngor Mm Wui Seung Hoi Nay Ge”（I won’t hurt you 我唔會傷害你嘅）, when he was supposed to say “Ngor Mm Wui Seung Hoi Nay Day Ge”（I won’t hurt you people 我唔會傷害你哋嘅）. Apart from that, two actors pronounced the last character “嘅”（Ge）as “呀”（Ah）and “㗎”（Ga）respectively; and when the applicant said the sentence for the second time and the third time, he left out this character. Mr Ma also complained that before the identification procedure began, PW4 failed to ensure that all members of the parade spoke with a similar accent, and that was unfair to the applicant.", "zh-HK": "馬大律師的第二項論據指Joyce聲音辨認的證據有違程序公義。他的陳詞稱認人行列中的人大部分不能完全準確地說出Joyce指定的句子。當日認人行列中，連同申請人共有9人。除卻戲子2號外，所有人都把「我唔會傷害你哋嘅」說成「我唔會傷害你嘅」，另外有兩名戲子更把句子最後一個字「嘅」分別說成「呀」和「」，申請人在第2次和第3次重複句子時則遺漏了這個字。馬大律師亦指，PW4 沒有在開始認人前確保認人行列中各人的口音相若，對申請人不公。" } }, { "doc_id": 64, "seg_id": 45, "translation": { "en": "The trial judge had taken this submission into account when he gave his verdict. He remarked that the complaint about the inability of members of the parade to utter the sentence in question with complete accuracy was fault finding, and that although PW4 did not ascertain beforehand with what accent each person spoke, from his viewing the video recording, he noticed that every person spoke pure Cantonese and no unfairness was created against the applicant.", "zh-HK": "原審法官在裁決時，已考慮了這項陳詞。他認為有關認人行列中的人士不能全部準確地說出指定句子的投訴，屬吹毛求疪，而雖然PW4沒有事先確認各人的口音，但從錄影記錄觀察所得，各人都操純正粵語口音，沒有對申請人造成不公。" } }, { "doc_id": 64, "seg_id": 46, "translation": { "en": "As stated above, the focus of voice identification is on letting a witness hear the special features of the voices of members of the parade. Mr Ma complained that PW4 did not deal with the problem that the applicant and the actors failed to accurately utter the specified sentence, but he did not point out in what way the special features of the voices of these people, and the accuracy and fairness of the witness’s voice identification was affected by these differences. It is noteworthy that when the defence were cross-examining Joyce, it was put to her that the failure of the people to accurately utter the sentence she asked them to utter would render the voice identification inaccurate. Joyce clearly voiced her disagreement with that proposition. She explained in detail that she judged whether a person’s voice matched the voice of the robber by referring to the timbre, volume, tone, method of breathing, pronunciation, and the rising and falling rhythm as revealed in the utterance of that person (see 89K-S, 90J-Q and 91 H-J of the appeal bundle). We are of the view that to say “Nay” (you你) instead of “Nay Day” (you people你哋), and to pronounce “Ge”（嘅）as “Ah”（呀）”, “Ga”（㗎）or leave it out altogether are only minor differences, which had no obvious or perceptible influence on the special features of the voice of any person, and had created no observable unfairness in the process of the identification parade, including the voice identification part.", "zh-HK": "如前所述，聲音辨認的重點在於讓證人辨認認人行列中各人聲音的特徵。馬大律師投訴PW4沒有處理申請人和戲子沒有準確地說出指定的句子，但他沒有指出這些差異如何影響各人聲音的特徵，及證人辨認他們聲音的準確性和公平性。值得注意的是辯方在盤問Joyce時，曾向她指出各人沒有準確地說出她要求說的句子會使聲音辨別變得不準確，但Joyce明確表示不同意，並詳細解釋她是以各人的音質、聲線、語氣、用氣方法、咬字、說話的抑揚頓挫，去決定他們的聲音是否與賊人的聲音吻合（見上訴文件冊89K-S、90J-Q和91H-J）。本庭認為，把「你哋」說成「你」和把「嘅」說成「呀」、「」或遺漏了，都是輕微的差異，對各人聲音的特徵沒有明顯或可見的影響，對列隊認人手續及當中聲音辨認部分的過程沒有可見的不公平之處。" } }, { "doc_id": 64, "seg_id": 47, "translation": { "en": "Regarding the complaint that PW4 did not ascertain beforehand whether members of the parade spoke with a similar accent, Mr Tam correctly pointed out that in the guidelines concerning the holding of an identification parade presently in force in Hong Kong, there was no arrangement or requirement specially designed to cater to the request made by a witness during the process for making voice identification. Generally speaking, the police officer in charge of the identification parade has the duty to ensure that there are no obvious differences among members of the parade. Since a witness who comes to participate in the identification parade procedure mainly depends on visual identification, when choosing people to form the parade, it is mainly focused on their appearances and visible physical features. We think that if it is to conduct a voice identification, the ideal way to proceed is of course to ensure that members of the identification parade speak with roughly the same accent. However, this is dependent on whether the circumstances permit. Ultimately, what the court has to consider is whether the trial will be rendered unfair if the relevant identification evidence is admitted, so that the court should exercise its discretion to exclude it.", "zh-HK": "至於指PW4沒有先確立認人行列中各人的口音相若這點，覃大律師正確指出，香港現行有關列隊認人手續的指引，沒有針對證人在過程中要求作聲音辨認，作出特別處理和規定。就一般原則而言，負責舉行列隊認人手續的警務人員有責任確保認人行列的人士沒有明顯的差異；由於列隊認人手續以目視辨認為主，故此在揀選認人行列人士時，焦點多在於他們外貌和可見的身體特徵。本庭認為，如果進行聲音辨別，理想的做法當然是確保認人行列人士的口音大致相若。然而，這亦須視乎情況是否許可。最終，法庭要考慮的是倘若採納有關的認人證據，會否使審訊不公，以致應行使酌情權力把它豁除。" } }, { "doc_id": 64, "seg_id": 48, "translation": { "en": "In the present case, when PW4 explained to Joyce the procedures and facilities for holding an identification parade, she asked whether she could request members of the parade to say something, but at that moment she was just enquiring whether she was allowed to do that; she did not specifically make such a request. It was only when she was viewing the parade did she make up her mind that she would like to ask them to say something in order to hear their voices (see 87B-C of the appeal bundle). In these circumstances, it is understandable that before the identification parade began PW4 did not check with what accent each member of the parade spoke.", "zh-HK": "在本案中，雖然Joyce在PW4向她介紹列隊認人程序和設施時，曾詢問可否要求認人行列人士說話，但她當時只是查詢是否可以這樣做，不是明確提出這個要求，她是在進行列隊認人期間才決定要求他們說話，以辨別他們的聲音（見上訴文件冊87B-C）。在此情況下，PW4沒有在開始列隊認人前瞭解認人行列中各人的口音，是可以理解的。" } }, { "doc_id": 64, "seg_id": 49, "translation": { "en": "The evidence of both Grace and Joyce was that the robber spoke pure Cantonese. In her evidence Joyce carefully and fully explained how she could be sure that the applicant’s voice matched the robber’s. She pointed out that the robber spoke in a low and deep tone, that he spoke without enough breath, that he could not say a sentence in full without pausing, that his voice was not clear, that he spoke without much modulation and that the speed of his speech was low (58U to 59O of the appeal bundle). She said that during the identification parade she still remembered clearly the robber’s voice (60G of the appeal bundle). In giving his verdict the trial judge stated that every member of the parade spoke pure Cantonese and no problem related to accent arose. The applicant did not appeal against this finding of fact. Mr Ma did not challenge this finding in his submission, nor did he specify in what way the applicant actually suffered any unfairness as a result of PW4’s failure to ascertain beforehand with what accent each member of the parade spoke.", "zh-HK": "Grace和Joyce的證言都指賊人操純正廣東話。Joyce作供時，對於肯定申請人的聲音吻合賊人的聲音，給予詳盡的說明。其中她指出賊人的聲線低沉、不太夠氣、不能一口氣把整個句子說完、音質不亮、沒太多高低起伏和說話速度偏慢（上訴文件冊58U至59O）。她亦表示在進行認人手續時仍能清楚記得賊人的聲音（上訴文件冊60G）。原審法官的裁決亦指出認人行列中各人都操純正廣東話，沒有口音的問題。申請人沒有就此事實裁斷提出上訴。馬大律師的陳詞也沒有挑戰這項裁斷，亦沒有指出PW4沒有先瞭解認人行列人士的口音，為申請人造成甚麼實質的不公平之處。" } }, { "doc_id": 64, "seg_id": 50, "translation": { "en": "Looking at all the relevant evidence, the fact that before the voice identification began PW4 did not take any step to ensure that members of the identification parade spoke with roughly the same accent did not result in any unfairness in the procedures of the identification parade or cause the applicant to suffer any actual unfairness. The trial judge’s decision to admit this part of the identification parade evidence did not create any unfairness in the trial.", "zh-HK": "綜觀有關的整體證據，PW4沒有在進行聲音辨認之前，採取行動確保認人行列人士的口音大致上相若，這點沒有使列隊認人的程序不公平，或對申請人造成任何實質上的不公平。原審法官決定採納列隊認人手續這部分的證據，沒有為審訊帶來不公平之處。" } }, { "doc_id": 64, "seg_id": 51, "translation": { "en": "Ground of appeal (1) of the applicant is not established.", "zh-HK": "申請人的第(1)項上訴理由不能成立。" } }, { "doc_id": 64, "seg_id": 52, "translation": { "en": "Ground of appeal (2)", "zh-HK": "第(2)項上訴理由" } }, { "doc_id": 64, "seg_id": 53, "translation": { "en": "In relation to ground of appeal (2) the gist of Mr Ma’s submission was that the trial judge did not fully follow the guidelines laid down in R v Turnbull about how to deal with identification evidence, that when he made his findings he failed to point out the weaknesses in Joyce’s observation and identification evidence of the robber’s height, build, right eye and voice, that his analysis of the evidence was cursory, and that therefore the conclusion he reached was unsafe.", "zh-HK": "至於第(2)項上訴理由，馬大律師陳詞的重點指原審法官沒有完全依從R v Turnbull案有關處理辨認的證據的指引，在作出裁決時，沒有指出Joyce有關對賊人的身高、體型、右眼和聲音的觀察和辨認證供的不足之處，分析證據時粗疏，得出的結論因而不穩妥。" } }, { "doc_id": 64, "seg_id": 54, "translation": { "en": "The focal point of the legal principles expounded in R v Turnbull is that when the case against a defendant depends wholly or substantially on the correctness of a witness’s identification of the defendant which the defendant alleges to be mistaken, then the judge should warn the jury of the need for caution before convicting the defendant in reliance on the identification evidence, because an honest and convincing witness could make a mistaken identification. The judge should further direct the jury to examine closely the circumstances in which the identification was made and should remind the jury of any weaknesses in the identification evidence. In a number of cases (for example: The Queen v Cheung Ping Kwong (unreported) CACC 149/1989; The Queen v Pham Van Hai (unreported) CACC 127/1990) the Court of Appeal held that it was not necessary for a District Judge, in making his findings, to give himself explicit directions about how to assess identification evidence in the terms of R v Turnbull, but that he should show that he had been mindful of the legal principles in R v Turnbull concerning the dangers inherent in relying on identification evidence.", "zh-HK": "R v Turnbull案的法律原則的核心點在於若控方對被告人的指控，完全或在很大程度上取決於證人對被告人的辨認是否正確無誤，但被告人指稱他被錯誤辨認，則法官在引導陪審團時，必須提醒他們在依賴辨認證據把被告人定罪前，必須小心考慮，因為誠實、有說服力的證人亦可能作出錯誤的辨認。法官同時亦應引導陪審團仔細研究證人是在甚麼情況下辨認被告人，以及向他們指出辨認證據存在甚麼弱點。上訴法庭在不少案件中指出（例如：The Queen v Cheung Ping Kwong (未經匯編) CACC 149/1989; The Queen v Pham Van Hai (未經匯編) CACC 127/1990），區域法院的法官不需要在裁決時，向自己明言發出R v Turnbull案中有關考慮辨認證據的指引，但他必須顯示他已顧及R v Turnbull案的法律原則，即依賴辨認證據定罪的潛在危險。" } }, { "doc_id": 64, "seg_id": 55, "translation": { "en": "In this case, the trial judge said in paragraph 44 of the Reasons for Verdict:", "zh-HK": "在本案中，原審法官在裁決理由書第44段說：" } }, { "doc_id": 64, "seg_id": 56, "translation": { "en": "關於如何處理「認人」證據，本席謹記Turnbull案的法律原則。本席亦謹記，單純依賴「認人」證據的危險性。關於「聲音辨認」的證據，本席按相關的陪審團指引行事。」\t“As regards how I should deal with the identification evidence, I bore in mind the legal principles laid down in Turnbull. I also reminded myself of the dangers inherent in relying solely on identification evidence. As far as the evidence of identification by voice is concerned, I proceeded according to the relevant direction given in a jury trial.”", "zh-HK": "「" } }, { "doc_id": 64, "seg_id": 57, "translation": { "en": "From paragraphs 40 to 43 the trial judge analysed Joyce’s evidence about her visual identification and voice identification. He was aware that there were unsatisfactory areas in Joyce’s observation of the face of the robber, ie the robber was wearing a cap and a breathing mask; the lighting at the scene was insufficient and Joyce was not able to look at the robber’s face for a significant length of time. On the other hand, he pointed out that at the material time the surrounding environment was quiet, in the course of the robbery the robber kept on talking with the victims, so Joyce could clearly hear the voice of the robber and notice its special features. The trial judge was also mindful of the fact that owing to the nature of her work and her training in a course about voice, Joyce was capable of seeing things in places where there was insufficient lighting and recognizing the special features of the voices of strangers.", "zh-HK": "原審法官亦在第40段至43段分析了Joyce的目視和聲音辨認證供。其中他注意到Joyce觀察賊人樣貌不理想之處，即賊人戴了帽和口罩、案發現場光線不足及Joyce未能長時間注視賊人的樣貌。另一方面他指出，案發時四週環境寂靜，行劫過程中賊人與事主不停對話，Joyce因而能清楚聽到賊人的聲音和留意其特徵。原審法官亦注意到Joyce因工作需要和曾接受聲音方面的訓練，故掌握在光線不足的環境看東西，及辨別陌生人聲音特質的能力。" } }, { "doc_id": 64, "seg_id": 58, "translation": { "en": "The trial judge did not spell out in the Reasons for Verdict the guidelines in R v Turnbull in the way in which a judge would direct the jury, but he did not need to do so. The crucial consideration is whether he had in mind the legal principles contained in the Turnbull guidelines. It can be seen from the Reasons for Verdict that the trial judge took notice of the dangers inherent in relying on identification evidence to convict a defendant, and knew that he had to carefully consider the relevant evidence. Although he did not enumerate one by one the evidence about Joyce’s observation at the material time of the appearance of the robber and the special features of his voice when he spoke, he was clearly aware of the strengths and weaknesses in the evidence of visual identification and that of voice identification. We do not agree with Mr Ma’s submission that the guilty verdict was unsafe because the trial judge did not fully follow the Turnbull guidelines.", "zh-HK": "原審法官在裁決理由書中沒有像引導陪審團般詳細道出R v Turnbull的指引，但他並不需要這樣做。關鍵的考慮是他是否已顧及R v Turnbull指引所涉的法律原則。從裁決理由書可見，原審法官知悉依靠辨認證據定罪的潛在危險，須小心謹慎考慮相關的證據。雖然他沒有把有關Joyce案發時觀察賊人外貌和說話時聲音的特徵的證供一一臚列，但他顯然明瞭案中目視和聲音辨認證據的强弱。本庭不認同馬大律師指原審法官沒有完全依從R v Turnbull指引，令定罪裁決不穩妥的陳詞。" } }, { "doc_id": 64, "seg_id": 59, "translation": { "en": "Mr Ma further submitted that there were defects in Joyce’s identification evidence, but that the trial judge did not consider them. Joyce’s evidence was that she was sure that the applicant was the robber on the basis of four features: voice, right eye, height and build. In respect of the feature of voice, Mr Ma submitted that PW4 did not check before the identification parade began what dialect the applicant and the actors spoke, and that the applicant and the actors (except number 2) could not accurately say the specified sentence, but the trial judge failed to seriously consider these defects. When we were dealing with ground of appeal (1), we already found that these complaints were not substantiated (see paragraph 36 to 42 above). We are not going to repeat that.", "zh-HK": "馬大律師也指Joyce的辨認證供有不足之處，而原審法官沒有加以考慮。Joyce的證供是她基於聲音、右眼、身高和體型四項元素，肯定申請人便是賊人。就聲音這項元素，馬大律師提出PW4沒有在列隊認人前查問申請人和戲子操甚麼方言，及申請人和戲子（除2號外）都沒有準確地說出指定的句子，但原審法官沒有認真考慮這些不足之處。本庭在處理第(1)項上訴理由時已指出這些理據不能成立（見上文第36段至42段），不再贅述。" } }, { "doc_id": 64, "seg_id": 60, "translation": { "en": "Another complaint raised by Mr Ma was that the trial judge admitted and used evidence about Joyce’s physical reactions to support her voice identification. He said that in the absence of any support from any scientific or expert evidence, such approach was risky because there could be various reasons for a particular physical reaction.", "zh-HK": "馬大律師也投訴原審法官接納和引用Joyce的生理反應的證據作為輔助聲音辨認，既欠缺科學或專家證據予以支持，亦是危險的做法，因為產生生理反應的成因有多種。" } }, { "doc_id": 64, "seg_id": 61, "translation": { "en": "The evidence relevant to this submission originated from the explanation given by Joyce during her examination-in-chief about why she asked the applicant to repeat the specified sentence. She said it was because even though when the applicant uttered the sentence the first time, she already found that his voice was the same as that of the robber kept in her memory, for the sake of caution and for the avoidance of any mistake due to nervousness, she asked him to repeat the sentence. Joyce went on and said, “In addition, from the very moment I heard his voice again, I trembled all over and my heart pumped fast. The reactions were the same as those I experienced when just now I heard his voice again. I therefore asked him to say it the third time, for I wanted to be 100% sure.” (61Q-R of the appeal bundle). When Joyce was being cross-examined in respect of this part of her evidence, she said, “When I kept on asking [him] to say that, the feeling in my heart, that’s the pumping of my heart and the spontaneous reaction of my body, became intensified and stronger. This could support, could reinforce me. I mean even my body could spontaneously reflect that. What I experienced at that moment really came from my emotional memory and sensory memory. Yes, it was a kind of supporting...” (91M-O of the appeal bundle).", "zh-HK": "與這項陳詞有關的證供源於Joyce在主問時解釋，要求申請人重複說指定的句子，是因為雖然第一次已認為申請人的聲音與她記憶中賊人的聲音一樣，但為審慎和避免因緊張出錯，所以要求申請人重複該句子。Joyce接著說：「加上由我再聽番佢把聲嗰一刻開始，我係全身震嘅，我個心亦都跳得好快，同我剛才再聽番佢把聲係同一個反應，所以我要佢講第三次，因為我要100 per cent肯定。」（上訴文件冊61Q-R）當Joyce就此部分證供被盤問時，她說：「而當我一路要[佢]去講嘅時候，我心裡面嘅感覺，即係嗰個心跳同埋個身體自然反應，係愈嚟愈加劇強烈嘅,咁所以呢一個係輔助性地，令到reinforce咗我，即係話我身體自然地都已經反映到，確實係嗰個emotional memory同埋sensory memory當其時出現咗嘅，係喇，佢係輔助性地…」（上訴文件冊91M-O）。" } }, { "doc_id": 64, "seg_id": 62, "translation": { "en": "In analysing Joyce’s evidence about how she could identify the applicant, the trial judge said, “Joyce considered that when the defendant uttered the sentence, the volume, tone and pronunciation matched those of the robber perfectly, and in addition, there were the spontaneous reactions which she experienced when she heard him say the sentence (her body trembled and her heart thumped), so she was sure that the defendant was the robber who appeared that night.” (paragraph 43 of the Reasons for Verdict)", "zh-HK": "原審法官在分析Joyce辨認出申請人的證供時，指出：「Joyce認為，被告人說那句話的聲線、語氣、咬字完全與賊人吻合，加上自己在聽到被告人說那句時的自然反應（身體顫抖和心跳）。所以她肯定被告人是當晚的賊人。」（裁決理由書第43段）" } }, { "doc_id": 64, "seg_id": 63, "translation": { "en": "In her evidence Joyce mentioned that when she heard the applicant say the sentence requested by her, her body reacted spontaneously, ie her body trembled and her heartbeat accelerated. That was her explanation as to why she asked the applicant to repeat the sentence. She said that these spontaneously arisen emotional reactions reinforced her belief that the voice of the applicant matched that of the robber kept in her memory. It was not her evidence that she relied on these spontaneous physical reactions to help her conduct the voice identification, and the trial judge in giving his verdict did not say that her spontaneous physical reactions formed part of the basis on which she identified the applicant. We consider that this complaint from Mr Ma sprang from his misunderstanding of Joyce’s evidence and the trial judge’s reasons for verdict.", "zh-HK": "Joyce在作供時提及當她聽到申請人說她要求的句子時，出現身體顫抖和心跳加速的自然反應，是為解釋何以要求申請人複述該句子。她指出這些自然的情緒反應令她更加肯定申請人的聲音吻合她記憶中賊人的聲音。Joyce的證供不是說她依賴這些身體的自然反應協助她進行聲音辨認。原審法官在裁決時亦不是指Joyce的身體自然反應是她辨認出申請人的基礎之一。本庭認為馬大律師這項投訴是基於對Joyce的證供和原審法官的裁決理由的錯誤理解。" } }, { "doc_id": 64, "seg_id": 64, "translation": { "en": "As for his right eye, which was another identifying feature, the defects pointed out by Mr Ma were that at the material time Joyce had only stolen a glance at the eyes of the robber which lasted only a short moment of time, that she could only give a simple description of his right eye, that she did not notice whether the robber’s left eye had any special feature, and that she did not notice whether he was wearing spectacles.", "zh-HK": "有關右眼這項辨認元素，馬大律師提出的不足之處有Joyce案發時只是短時間偷看賊人的眼睛，她只能簡單地描述他的右眼，她沒有注意賊人的左眼的任何特徵，及沒有留意他有沒有戴眼鏡。" } }, { "doc_id": 64, "seg_id": 65, "translation": { "en": "Joyce’s evidence was that in the course of the robbery, which lasted 25 to 30 minutes, she had looked at the face of the robber in a face-to-face position for about five seconds (55J of the appeal bundle), and that at the rest of the time she had seen the face of the robber four or five times, not in a face-to-face position, each time for about three seconds (55M, 56B-J, 57K-P and 58A-C of the appeal bundle). She also mentioned one occasion on which she walked and got to a position in front of the robber, where she stole a glance at him at close range. At that moment the lighting was quite good and she clearly saw the right eye of the robber (48B-J, 48R-T of the appeal bundle). Her description of his right eye was that it was small and slender, like a piece of thread and expressionless, and that there was a bulging eye-bag (58G, 74H of the appeal bundle). When being cross-examined, Joyce explained that she was looking for a chance to have a look at the robber. When she saw his right eye at a short distance, she focused on his eye; because of that she did not pay attention to whether he was wearing spectacles, but she had about two seconds to look clearly and closely at his right eye (73A-R, 75M-V of the appeal bundle).", "zh-HK": "Joyce的證供指在約25至30分鐘的行劫過程中，她曾正面看到賊人的面部約5秒（上訴文件冊55J），其他時間曾4、5次非正面看賊人的面部，每次約3秒（上訴文件冊55M，56B-J，57K-P和58A-C）。她亦提及其中一次當她行經賊人面前，近距離地偷看了他，當時光線頗亮，她能清楚看到賊人的右眼（上訴文件冊48B-J、48R-T）。她描述賊人的右眼細、長，好像一條線，眼肚浮腫和沒有神采（上訴文件冊58G、74H）。在接受盤問時，Joyce表示她是找機會偷望賊人，當她近距離望見他的右眼時，由於注意點集中在他的眼，故沒有留意他是否戴著眼鏡，但她有約兩秒時間可以清楚仔細地看到賊人的右眼（上訴文件冊73A-R、75M-V）。" } }, { "doc_id": 64, "seg_id": 66, "translation": { "en": "In view of the circumstances in which the crime occurred and the fact that the robber was wearing a cap and a breathing mask, Joyce’s observation of the face of the robber must have been subject to certain limitations. The trial judge in giving his verdict did not overlook this point. He noticed that Joyce’s visual observation was not the most satisfactory type. On the other hand, even though Joyce could see the robber’s right eye only when she stole a glance at him, the observation was done at a close distance when the lighting was quite good. It was clear and close observation. There was evidential basis for the trial judge to accept her identification evidence about the right eye. Moreover, Joyce observed that the robber’s right eye was small and slender, like a piece of thread. She did not describe the eyelid, the white of the eye or the pupil. There was nothing to be criticized. We do not agree with Mr Ma’s criticism that her description of the robber’s right eye was too simple.", "zh-HK": "基於案發時的客觀環境和賊人戴上帽和口罩，Joyce對賊人樣貌的觀察必然有局限性。原審法官在裁決時亦沒有忽略這點，他注意到Joyce的目視觀察並非最理想。另一方面，雖然Joyce只是偷望賊人的時候看到他的右眼，但她是在近距離、光線頗亮的情況下作出清楚和仔細的觀察，原審法官有證據基礎接納她基於右眼的辨認證供。再者，Joyce的觀察是賊人的右眼細、長，像一條線，她沒有形容他的眼簾、眼白或瞳孔，沒有可詬病之處，本庭不同意馬大律師指她對賊人的右眼的描述太過簡單的批評。" } }, { "doc_id": 64, "seg_id": 67, "translation": { "en": "Turning now to the height of the robber, which was also an identifying feature, Joyce gave evidence that the robber was taller than her by 4 cm. Mr Ma complained that when Joyce gave evidence she forgot whether the actors on the identification parade were wearing shoes or not, and that the height of the heels might affect the height of the robber and the actors, and that therefore Joyce’s identifying the applicant as the robber by relying in his height was unreliable and might be mistaken, but that the trial judge did not consider this defect.", "zh-HK": "至於身高這項辨認元素，Joyce的證供是賊人較她高約4 cm。馬大律師批評Joyce作供時忘記了認人行列中的戲子有沒有穿鞋，而鞋跟的高度有可能影響賊人和戲子的高度，因此Joyce以身高確認申請人是賊人不可靠，有可能出錯，但原審法官沒有考慮這不足之處。" } }, { "doc_id": 64, "seg_id": 68, "translation": { "en": "We do not accept this submission. First of all, when Joyce was asked during cross-examination about the shoes worn by the robber during the commission of the crime, she described them as dark colour shoes and “heelless”, and it was because he did not make any sound when he was walking (77A, M-O of the appeal bundle). The defence did not put it to her that this observation was incorrect or unreliable. Therefore, in the present case there was no evidence which showed that the shoes worn by the robber could affect Joyce’s observation of the height of the robber. Secondly, although when Joyce gave evidence she forgot whether the actors on the parade were wearing shoes or not, in this case there was no evidence which showed that during the identification parade only the applicant was wearing shoes while the actors were not, nor was there evidence that the heels of the shoes the applicant wore were higher than those of the shoes worn by the actors so that Joyce’s judgement as to height during the identification parade was affected.", "zh-HK": "本庭不同意這項陳詞。首先，Joyce在接受盤問時，被問及賊人犯案時穿的鞋子，她描述是深色鞋和「冇踭」，因為他走路時沒有發出聲音（上訴文件冊77A、M-O）。辯方沒有向她指出這項觀察不確或不可靠。案中因而沒有證據顯示賊人穿的鞋會影響Joyce對賊人高度的觀察。其次，雖然Joyce作供時忘記了認人行列中的戲子有沒有穿鞋子，但在本案中根本沒有證據顯示進行列隊認人時，只有申請人穿鞋而戲子們沒有穿鞋，又或是申請人穿的鞋比戲子穿的鞋較高跟，從而影響Joyce在目視辨認時就身高這點的判斷。" } }, { "doc_id": 64, "seg_id": 69, "translation": { "en": "Finally, we come to build, which was yet another identifying feature. Joyce’s description was that the robber was of medium build and not muscular. Mr Ma submitted that the thickness of the clothes worn by a person could impact on other people’s impression of his build. However, Joyce’s evidence was that the robber was not wearing loose-fitting clothes, and that at the material time the weather was warm and somewhat hot (78M-Q, 79F-K of the appeal bundle).", "zh-HK": "最後有關體型這項辨認元素，Joyce描述賊人的身型中等、不健碩。馬大律師指衣服的厚薄會影響別人對他的體型的觀感。然而，Joyce的證供指賊人不是穿著鬆身的衣服，及案發時天氣溫暖、有點兒熱（上訴文件冊78M-Q、79F-K）。" } }, { "doc_id": 64, "seg_id": 70, "translation": { "en": "Mr Ma also submitted that Joyce said in her evidence that she noticed that when the applicant was standing in a line with other people, he deliberately put on the appearance that one of his shoulders was higher than the other one, but that PW4 did not see this. He said the evidence of these two witnesses contradicted each other in this respect and it was questionable whether Joyce really saw that the applicant stood there with one of his shoulders higher than the other. Mr Ma criticized the trial judge for his failure to address this discrepancy and defect and for his not giving the benefit of the doubt to the applicant.", "zh-HK": "馬大律師也提出，Joyce作供時提及留意到申請人在認人行列中站立時，刻意假裝高低膊，但PW4沒有看到這個情況，兩人在這方面的證供出現矛盾，令人質疑Joyce是否真的看見申請人以高低膊的姿勢站立。馬大律師批評原審法官沒有解決這項分歧和不足之處，及沒有把疑點的利益歸於申請人。" } }, { "doc_id": 64, "seg_id": 71, "translation": { "en": "We must first point out that whether the applicant was standing with one shoulder higher than the other was a matter about his standing posture and did not have any necessary connection with Joyce’s use of his build as one of the identifying features. Furthermore, although during cross-examination the defence did ask Joyce the question why her identification would not be affected by the fact that the applicant was standing with one of his shoulders higher than the other one, whereas the robber’s shoulders were not like this, it was not put to her that when she was viewing the parade, the applicant did not stand with one shoulder higher than the other, nor was it put to her that her observation in this respect was not accurate, or that her evidence was untrue. The raising of this point by the applicant during the appeal was actually an attack on Joyce and the credibility of her evidence. However, judging from the evidence of this case as a whole, the discrepancy between the evidence of Joyce and that of PW4 about the standing posture of the applicant when he was standing in a line with other people did not affect Joyce’s integrity as a witness, nor did it undermine the credibility and reliability of her identification evidence. This is because standing posture was not one of the features she relied on for making the identification, and also because in her evidence there was clear and detailed description and explanation about the four identifying features which she relied on. There was a sound evidential basis on which the trial judge could accept Joyce’s evidence, including her identification evidence, and rely on such evidence to reach the guilty verdict. In conclusion, we do not agree that there were serious defects in Joyce’s identification evidence which the trial judge did not take into consideration so that the guilty verdict was rendered unsafe.", "zh-HK": "本庭首先須指出，申請人是否以高低膊的姿勢站立，是站姿的問題，與Joyce以體型作為其中一項辨認元素沒有必然的關係。其次，辯方在盤問Joyce時雖然有問及由於申請人以高低膊的姿勢站立，但賊人不是高低膊，這點為甚麼不會影響她進行辨認，但卻沒有向Joyce指出，申請人在她進行列隊認人時沒有以高低膊的姿勢站立，或指出她這方面的觀察不準確，或她的證言失實。申請人在上訴時提出這項陳詞，實質上是針對Joyce及其證言的可信性。然而，從本案的整體證據看來，Joyce和PW4有關申請人在認人行列中的站姿的分歧，不會影響Joyce作為證人的誠信，亦不會削弱她辨認證供的可信性和可靠性。這除了是因為站姿並非Joyce依賴作出辨認的元素之一，亦因為她的證供對所依賴的四項辨認元素的基礎，提供了清晰詳細的描述和解釋。原審法官有充份的證據基礎，接納Joyce的證言，及採納她的辨認證供，並依賴它作出定罪的裁決。總括而言，本庭不同意Joyce的辨認證供有着嚴重不足，及原審法官沒有加以考慮，以致定罪裁決不穩妥。" } }, { "doc_id": 64, "seg_id": 72, "translation": { "en": "Under ground of appeal (2) Mr Ma further submitted that Joyce identified the applicant by relying on four features, namely his voice, his right eye, his height and his build, that in her evidence she said the weight she assigned to them was respectively 55%, 20%, 12.5% and 12.5%, and that she concluded that the applicant was the robber only when all four features matched those of the robber. According to Mr Ma, this showed that Joyce’s identification evidence was not entirely certain, so there was bound to be doubts when it was used as the basis of the conviction.", "zh-HK": "馬大律師在第(2)項上訴理由下亦提出，由於Joyce是憑仗聲音、右眼、身高和體型四項元素辨認出申請人，而她作供時指它們各佔的比重分別為55%、20%、12.5%和12.5%，以及她是在四項元素都吻合的情況下才會確定申請人是賊人，這就表示Joyce的辨認證據並非是完全肯定的，採納它作為定罪的基礎必然造成疑點。" } }, { "doc_id": 64, "seg_id": 73, "translation": { "en": "We consider that this submission is wholly untenable. The circumstances in The Queen v Yip Moon Ting & Another [1984] HKLR 443, which Mr Ma prayed in aid, were utterly different from those of the present case. In that case, when the witness was under cross-examination, he indicated that when he identified the second applicant of that case as one of the robbers, he was 60% to 70% sure; and in re-examination he further said he was not able to be 100% sure. In view of this, the Court of Appeal remarked in the judgment (446B-C) that in making identification a witness was either sure or he was not, and could not be 60% to 70% sure. In the present case, Joyce repeatedly said that she was totally sure that the applicant was the robber and that she had made no mistake about it. The 55%, 20%, 12.5% and 12.5% only represented the respective weight she assigned to the four identifying features which she relied on in making the identification. In The Queen v Sung Kwok Man & Another [1994] HKCLR 164, the Court of Appeal held that an identification could be founded on more than one human sense and that an identification made in this way could be more reliable than one which depended on one sense alone. In that case, during the course of an identification parade, one of the victims said that she was not sure whether the person who raped her was on the parade, she asked each member of the parade to say some words which one of her rapists said when she was forcibly taken away by them. Having heard them utter these words, she identified the second applicant. The Court of Appeal held that the trial judge had correctly admitted such identification evidence and that it was not necessary for the trial judge to give the jury a separate Turnbull direction in respect of the voice identification.", "zh-HK": "本庭認為，這項陳詞完全不能成立。馬大律師援引的The Queen v Yip Moon Ting & Another [1984] HKLR 443與本案的情況廻然不同。在該案中，證人被盤問時，表示當他辨認出案中第二申請人是其中一名劫匪時，他是60%至70%肯定，而在覆問時，他亦說他不能100%肯定。有見及此，上訴法庭在判案書中（446B-C）指出，證人作辨認時，一是肯定，一是不肯定，不能是60%至70%肯定。在本案中，Joyce多次表示她完全肯定申請人是賊人，不會認錯人。她提及的55%、20%、12.5%和12.5%，只是四項辨認元素對她作出辨認時的影響所佔的比重。在The Queen v Sung Kwok Man & Another [1994] 1 HKCLR 164，上訴法庭裁定，證人是可以依賴多種感官進行辨認，而這樣做有可能較單靠一種感官進行辨認更可靠。在該案中，其中一名受害人在列隊認人過程中，表示不能肯定强姦她的人是否在認人行列中，她要求各人說出一句其中一名强姦她的人在擄走她途中說過的話，在各人說了那句話後，她認出第二申請人。上訴法庭裁定原審法官接納上述的辨認證據正確無誤，並裁定原審法官不需要就聲音辨認部分另外向陪審團給予R v Turnbull的指引。" } }, { "doc_id": 64, "seg_id": 74, "translation": { "en": "The circumstances in the present case were similar to those in Sung Kwok Man. Joyce similarly relied on more than one human sense in making identification. Her evidence was that in making identification she mainly relied on voice, and for the rest she relied on visual observation. There was nothing wrong for Joyce to found her identification on this basis. Indeed, its accuracy and reliability could be higher than an identification founded on what was seen or what was heard alone.", "zh-HK": "本案的情況與Sung Kwok Man案相若。Joyce亦是依賴多於一種感官作出辨認。她的證供顯示她較大部分依賴聽聲音作出辨認，其餘依靠目視觀察作辨認。Joyce這樣的辨認基礎並無不妥，相反，其準確和可靠程度有可能較單純以目視或以聲音作辨認來得更高。" } }, { "doc_id": 64, "seg_id": 75, "translation": { "en": "The applicant’s ground of appeal (2) is not established either.", "zh-HK": "申請人的第(2)項上訴理由亦不能成立。" } }, { "doc_id": 64, "seg_id": 76, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 64, "seg_id": 77, "translation": { "en": "For the above reasons, we hold that the application for leave to appeal against conviction shall be dismissed.", "zh-HK": "基於上述理由，本庭認為申請人就定罪提出的上訴許可申請應予以撤銷。" } }, { "doc_id": 64, "seg_id": 78, "translation": { "en": "由法律援助署署長委派陳進安鍾海英律師行轉聘馬家颿大律師代表。\tMr Henry Ma, instructed by C O Chan & Co., assigned by the Director of Legal Aid, for the Applicant.", "zh-HK": "申請人：" } }, { "doc_id": 64, "seg_id": 79, "translation": { "en": "Mr Simon Tam SC, Senior Assistant Director of Public Prosecutions, of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員覃民輝資深大律師代表。" } }, { "doc_id": 65, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 65, "seg_id": 2, "translation": { "en": "Appeal against sentence", "zh-HK": "刑期上訴" } }, { "doc_id": 65, "seg_id": 3, "translation": { "en": "The Applicant is the second defendant (D2) in the case. He and three other co-defendants were charged with various counts of “Conspiracy to deal with property known or believed to represent the proceeds of an indictable offence”, contrary to sections 159A and 159C of the Crimes Ordinance, Cap. 200 and sections 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455. Those charges are commonly known as “money laundering” charges.", "zh-HK": "申請人是案件的第2被告人。申請人與同案的另外三名被告人分別被控多項「串謀處理已知道或相信為可公訴罪行的得益的財物」罪，違反《刑事罪行條例》（香港法例第200章）第159A及159C及《有組織及嚴重罪行條例》（香港法例第455章）第25(1) 及 (3) 條。有關控罪俗稱為「洗黑錢」罪。" } }, { "doc_id": 65, "seg_id": 4, "translation": { "en": "D2 was found guilty of the second charge after trial by Deputy District Court Judge Johnny Chan and was sentenced to 3 years and 9 months’ imprisonment. He made an application for leave to appeal against sentence. After hearing, this Court allows his application for leave to appeal against sentence, and treating the application as the formal appeal, we vary the sentence to one of 3 years and 5 months’ imprisonment. The reasons for the decision are set out below.", "zh-HK": "第2被告人經審訊後被區域法院暫委法官陳仲衡裁定第2項控罪罪名成立及被判3年9個月監禁。他就刑期提出上訴許可申請。本庭在聆訊後批准刑期上訴許可申請，視申請為正式上訴及將刑期更改為3年5個月監禁。以下是本庭的判案理由。" } }, { "doc_id": 65, "seg_id": 5, "translation": { "en": "The charge", "zh-HK": "控罪" } }, { "doc_id": 65, "seg_id": 6, "translation": { "en": "The particulars of the charge are that from 4 June 2008 to 16 August 2008 in Hong Kong, D2, D3, and D4 knowing or having reasonable grounds to believe that a property, namely the deposit of HK$ 2,585,564.74 in an account with the Standard Chartered Bank (Hong Kong) Ltd (Account number 959-2-0693009-9), in whole or in part, directly or indirectly represents the proceeds of an indictable offence, conspired with each other and with a person called ‘Lo Chiu’ and some other unknown persons, to deal with the property.", "zh-HK": "控罪的詳情指第2、3與4被告人於2008年6月4日至2008年8月16日期間在香港，一同串謀和與一名別名叫「老趙」的人士及其他身分不詳的人士一同串謀，在明知或有合理理由相信某項財產，即渣打銀行有限公司帳戶(號碼959-2-0693009-9)內的一筆港幣2,585,564.74元的款項，全部或部分、直接或間接代表任何人從可公訴罪行的得益的情況下仍處理該筆財產。" } }, { "doc_id": 65, "seg_id": 7, "translation": { "en": "The facts", "zh-HK": "案情" } }, { "doc_id": 65, "seg_id": 8, "translation": { "en": "The facts of the case are that a Singaporean woman received notification from a company that she had won a sizeable lottery in Singaporean currency. But before she could claim the lottery payment, she had to pay processing fees. Between 2 May and 16 July 2008, she accordingly deposited money on thirteen occasions into a bank account in Singapore and remitted money into nine bank accounts in Hong Kong, the total amount being Singaporean dollars 990,000. However she never received any lottery payment. The remittances into those nine bank accounts in Hong Kong included one deposit into D1’s account with the Standard Chartered Bank (‘Charge 1’), three deposits into D2’s account with the Standard Chartered Bank (‘Charge 2’), and one deposit into D3’s account with the Standard Chartered Bank (‘Charge 3’). The woman then reported the fraud to the Singapore police.", "zh-HK": "案情顯示一名星加坡的女子接到一間公司的通知，說她中了抽獎，可獲得一筆大額的星加坡幣的獎金，但她需要先支付手續費才可領取該筆獎金。她於是在2008年5月2日至2008年7月16日期間先後13次將一筆星加坡幣990,000元的款項分別存入星加坡的一個銀行戶口及匯到香港的9個銀行戶口內，但這女子從未收取過任何獎金。匯入香港的9個銀行戶口的各筆款項包括一筆匯入第1被告人的渣打銀行戶口的款項（‘控 罪 1’）、三筆匯入第2被告人的渣打銀行戶口的款項（‘控 罪 2’）、及一筆匯入第3被告人的渣打銀行戶口（‘控 罪 3’）。這名女士於是向星加坡警方報案被人欺騙。" } }, { "doc_id": 65, "seg_id": 9, "translation": { "en": "D2 came to Hong Kong from Taiwan with D3 on 4 June 2008. On the next day, they went to the Standard Chartered Bank, each setting up a wealth management account with $9,000. They claimed to the bank staff that they were wholesalers working for a company called ‘山珍海味’ (which literally means delicacies from land and sea). D1 and D4 came to Hong Kong from Taiwan on 21 June 2008. They later set up their respective accounts with another bank. They claimed to the bank staff that they were wholesalers working for a business establishment called ‘山珍海味’ (which literally means delicacies from land and sea). All four defendants are Taiwanese residents and since their arrival in Hong Kong, they often travelled together between Hong Kong and the Mainland.", "zh-HK": "第2被告人於2008年6月4日與第3被告人從台灣來港，翌日兩人在渣打銀行各自以$9,000開設一個理財戶口。他們向銀行職員報稱是批發商，任職於一間名為「山珍海味」的公司。第1及第4被告人於2008年6月21日從台灣來港。之後兩人分別在另一間銀行開設戶口，他們向銀行職員報稱是批發商，任職的商號名為「山珍海味」。四名被告人都是台灣居民，自抵港後他們經常一起穿梭內地與香港。" } }, { "doc_id": 65, "seg_id": 10, "translation": { "en": "On 14 August 2008, D2 was intercepted by an immigration officer at the Lo Wu Immigration Building when he was on his way to the Mainland. He was later arrested by a police officer for the offence of ‘money laundering’. D2 said under caution that ‘I am a tourist here and the account is for my friends in Singapore to remit money here for use’. A while later D2 said, also under caution, that ‘I was merely directed by someone else. The person who directed me to launder black money is called ‘Lo Chiu’. I know he lives on the 5th floor in Fa Yuen Street Building. I don’t remember the address but I can take you there.’ Later D2 took the police officer to Fa Yuen Street and pointed at one of the flats to be the residence of ‘Lo Chiu’. He then took the officer to a flat in Shanghai Street. The officer opened the door to the flat with a key provided by D2 and entered the premises where D3 and D4 were found. The officer arrested D3 and D4 for the same offence. The officer found inside the flat the bank passbooks, notebooks and name cards belonging to D2, D3 and D4.", "zh-HK": "第2被告人於2008年8月14日於羅湖出入境大樓正預備前往內地時被入境處職員截停，其後警員以「洗黑錢」罪名拘捕他。第2被告人在警誡下說：「我是嚟旅行的，嗰戶口係我於星加坡的朋友匯錢過嚟用嘅」。稍後，第2被告人在警誡下稱「我都係受人指使，指使我冼黑錢嘅人叫『老趙』，我知佢住花園街大廈五樓，地址我唔記得，但係我可以帶你去」。之後，第二被告人帶警員到花園街，指出其中一個單位是「老趙」的住所，然後再帶警員到上海街一個單位。警員以第2被告人的一支鎖匙開啟該單位的門並進入單位，發現第3及第4被告人在單位內。警員以相同罪名拘捕第3及第4被告人。警員在上址發現第2、3及4被告人的銀行存摺、記事簿及卡片。" } }, { "doc_id": 65, "seg_id": 11, "translation": { "en": "Under caution, D2 said in a video-recorded interview that:", "zh-HK": "第2被告人在警誡錄影會面記錄中說：" } }, { "doc_id": 65, "seg_id": 12, "translation": { "en": "He saw a recruitment advertisement in the newspaper in Taiwan which says that staff are needed to work in Hong Kong and the monthly pay will be several hundred thousand Taiwanese dollars. He thought the job was well paid so he contacted the employer over the phone to arrange an interview in Taichung.", "zh-HK": "他是從台灣報章上看見招工廣告，廣告表示招聘員工到香港工作，月薪數十萬台幣，他認為這是豐厚薪酬的工作，他於是透過電話聯絡僱主於台中面試。" } }, { "doc_id": 65, "seg_id": 13, "translation": { "en": "He did not know the nature of the job but only that he would know after arrival in Hong Kong.", "zh-HK": "他不知道工作的性質，只知道來港後便會知曉。" } }, { "doc_id": 65, "seg_id": 14, "translation": { "en": "He used to be a bus driver in Taiwan and had various other jobs including working in a car cleaning company and selling slippers in beaches.", "zh-HK": "他過往曾在台灣從事巴士司機、洗車店及於沙灘販賣拖鞋等不同工作。" } }, { "doc_id": 65, "seg_id": 15, "translation": { "en": "When he arrived in Hong Kong, his employer took his passport away and said that it would be returned to him after he had worked for two months. He was told that his wages would be paid to him at that time.", "zh-HK": "到港後他的僱主便取去他的護照，說護照會於兩個月工作後歸還給他，他的工資亦會於當時支付給他。" } }, { "doc_id": 65, "seg_id": 16, "translation": { "en": "As his employer did not pay him any wages, he resigned from the job and intended to return to Taiwan. But when he was returning to Taiwan, he had to visit his friends in the Mainland and was then arrested by the police.", "zh-HK": "他其後因僱主沒有給他工錢而辭職，打算返回台灣。但卻於返回台灣時要到內地探望朋友而被警員拘捕。" } }, { "doc_id": 65, "seg_id": 17, "translation": { "en": "Although he had doubts about the job, he accepted it because he was in need of money.", "zh-HK": "他雖懷疑他的工作，但因等錢用，故此亦接受。" } }, { "doc_id": 65, "seg_id": 18, "translation": { "en": "When he was in Hong Kong, he was received by a Lo Chiu who lived in Fa Yuen Street. Lo Chiu took him to open various accounts with the Standard Chartered Bank, HSBC and the Bank of China.", "zh-HK": "他在香港時是由一名居於花園街的老趙接待，老趙並帶到渣打銀行、滙豐銀行及中國銀行開立不同的帳戶。" } }, { "doc_id": 65, "seg_id": 19, "translation": { "en": "He acted upon instructions to withdraw large sums of money from the accounts, involving a total amount of HK$1,000,000 from three different branches of the Standard Chartered Bank on three separate occasions on 13 July 2008.", "zh-HK": "他曾按指示從帳戶內提取多筆大額款項，包括於2008年7月13日分別三次從三間不同的渣打銀行分別提取合共100萬港元。" } }, { "doc_id": 65, "seg_id": 20, "translation": { "en": "On 16 and 17 July, he withdrew altogether HK$800,000 and HK$150,000 respectively. He handed all the money to Lo Chiu.", "zh-HK": "他於7月16日及17日先後提取80萬元及15萬港元，他將所有款項交給老趙。" } }, { "doc_id": 65, "seg_id": 21, "translation": { "en": "He had asked Lo Chiu why so much cash was required to purchase sea delicacies, but Lo Chiu answered that the money was used to buy property.’", "zh-HK": "他曾詢問老趙為何要那麼多現金購買海味，但老趙表示錢是用來買房子的。」" } }, { "doc_id": 65, "seg_id": 22, "translation": { "en": "Sentencing by Deputy Judge Chan", "zh-HK": "陳法官的量刑" } }, { "doc_id": 65, "seg_id": 23, "translation": { "en": "Deputy Judge Chan took 4 years imprisonment as the sentencing starting point and reduced it by 2 months because D2 was a first offender. A further reduction of 1 month was granted to D2 on account of his admission of the prosecution case at the trial which saved the court’s time. That resulted in a total sentence of 45 months’ (i.e. 3 years and 9 months’) imprisonment.", "zh-HK": "陳法官以4年為量刑基準，在扣減了第2被告人因初犯所獲得的兩個月刑期減免及因在審訊時同意控方案情，減省法庭時間而獲得的額外1個月的刑期減免後，總刑期為45個月（即3年9個月）監禁。" } }, { "doc_id": 65, "seg_id": 24, "translation": { "en": "Sentencing principles", "zh-HK": "量刑原則" } }, { "doc_id": 65, "seg_id": 25, "translation": { "en": "There are no sentencing guidelines for the offence of dealing with the proceeds from an indictable offence because the facts vary from case to case. However the following factors are to be taken into account when determining sentence:", "zh-HK": "由於處理公訴罪行得益的財產這類案件會涉及不同的案情，故此法庭沒有定下量刑指引。但以下各點是量刑的參考因素：" } }, { "doc_id": 65, "seg_id": 26, "translation": { "en": "It is the amount of money involved that is a major consideration and not the amount of benefit received by a defendant in the transaction.", "zh-HK": "(1)涉案的金額是重要的考慮因素，而非被告人本身在這次交易所獲得的利益。" } }, { "doc_id": 65, "seg_id": 27, "translation": { "en": "(2)The culpability of the offence lies in the assistance, support and encouragement offered to the commission of an indictable offence. So a defendant’s level of participation and the number of occasions on which he is involved in the ‘money laundering’ activities are relevant factors to be considered.", "zh-HK": "(2)控罪的罪責是協助、支持及鼓勵有關的公訴罪行，故此被告人的參與程度及涉及「洗黑錢」的次數是有關連的因素。" } }, { "doc_id": 65, "seg_id": 28, "translation": { "en": "(3)The offence of dealing with the proceeds from an indictable offence does not necessarily have any direct correlation with the indictable offence in question. However if the relevant indictable offence can be identified, the court may take into account the sentence imposed on the indictable offence pre se when determining the sentence of the dealing offence.", "zh-HK": "(3)處理公訴罪行得益的財產控罪與有關的公訴罪行不一定有直接關係，但若果有關的公訴罪行是可以確認的，那麼法庭是可以在處理控罪時考慮有關公訴罪行本身的刑期。" } }, { "doc_id": 65, "seg_id": 29, "translation": { "en": "(4)If the case has an international element involving activities carried out across different regions, the court may impose a more severe sentence. This is to protect Hong Kong’s reputation as an international finance and banking hub from being tarnished.", "zh-HK": "(4)若案件涉及國際跨境成分，法庭可採用較嚴峻的刑期，以免香港作為國際金融及銀行中心的形像受損。" } }, { "doc_id": 65, "seg_id": 30, "translation": { "en": "(5)The length of time the offence lasted.", "zh-HK": "(5) 涉案的時間。" } }, { "doc_id": 65, "seg_id": 31, "translation": { "en": "Precedents adduced by D2 was represented by Counsel Mr. Wong Hay Yiu who adduced a number of authorities to argue that the sentence imposed in the present case was excessive:", "zh-HK": "第2被告人引用的案例代表第2被告人的王熙曜大律師引用多宗案例指本案的刑期過重：" } }, { "doc_id": 65, "seg_id": 32, "translation": { "en": "(1) In HKSAR v. Xu Xia Li & Another (CACC 109/2005), one of the defendants in the case was convicted of an offence of dealing with that property, namely $11,000,000.00, which represented the proceeds of an indictable offence. The original sentence of 3 years’ imprisonment was reduced to 2 years and 9 months by the Court of Appeal.", "zh-HK": "(1)HKSAR v. Xu Xia Li & Another (許厦禮[譯音]及另一人) CACC 109/2005，其中一名被告被裁定處理 $11,000,000.00的公訴罪行得益財產罪名成立。原本刑期為3年監禁，上訴法庭更改為2年9個月監禁。" } }, { "doc_id": 65, "seg_id": 33, "translation": { "en": "(2)In HKSAR v. Javid Kamran (CACC 400/2004), the defendant pleaded guilty to two counts of trafficking in dangerous drugs and one count of money laundering. He admitted that he used his bank accounts to launder the proceeds from drug trafficking activities for a period as long as 18 months, involving an amount of over HK$1,000,000. The Court of Appeal considered that the starting point of 4 years’ imprisonment adopted by the trial judge was manifestly excessive and reduced it to 3 years. The sentence finally imposed was 2 years’ imprisonment.", "zh-HK": "(2)HKSAR v. Javid Kamran, CACC 400/2004。被告人承認兩項販毒及一項洗黑錢罪。被告人承認他利用他的銀行戶口作為清洗販運毒品得來的得益，犯案時間長達18個月，涉及超過1,000,000港元。上訴法庭認為原審法官以4年為量刑基準是明顯過重，將量刑基準更改為 3 年監禁。最終刑期是2年監禁。" } }, { "doc_id": 65, "seg_id": 34, "translation": { "en": "(3)In HKSAR v. Chow Ying Ki (CACC 378/2004), the appellant was convicted after trial of one count of money laundering. The amount involved was about HK$3,000,000 and the crime lasted for 9 months. The Court of Appeal was of the view that although the starting point of 4 years’ imprisonment was on the high side, it was not manifestly excessive. The sentence finally imposed was 4 years’ imprisonment.", "zh-HK": "(3)HKSAR v. Chow Ying Ki, CACC 378/2004。上訴人經審訊後被裁定一項洗黑錢罪。涉案款額約港幣3,000,000元，犯案時間長達9個月。上訴法庭認為4年量刑基準雖屬較高，但並不是明顯過重，最終刑期是4年監禁。" } }, { "doc_id": 65, "seg_id": 35, "translation": { "en": "(4) In HKSAR v. Yam Kong Lai [2008] 5 HKLRD 384, the appellant was convicted after trial of one count of money laundering. As an investment consultant, he knew that a client had an inactive fixed deposit account with US$520,000 (approximately HK$4,000,000) in it and that the client had disappeared. In the course of the offence, he forged the signature of the client and withdrew money from the client’s account via a circuitous route. He first transferred the money from the fixed deposit account to the bank account of a law firm in Singapore before he transferred the same to the bank account of a trading company in Hong Kong. He then transferred the money from the trading company’s bank account to his personal bank account and then withdrew the money. The Court of Appeal reduced the sentence of 5 years’ imprisonment to 4 years.", "zh-HK": "(4)HKSAR v. Yam Kong Lai [2008] 5 HKLRD 384。上訴人經審訊後被裁定一項洗黑錢罪罪名成立。他是一名投資顧問，他知道某客戶有一個不活躍的定期戶口，內有US$520,000美元(大約HK$4,000,000)，而該客戶已經失蹤。上訴人犯案過程涉及偽冒客戶的簽名，並以迂迴的途徑取走該客戶銀行戶口內的金錢，他先把定期存款內的款項轉帳到星加坡的一間律師行的銀行戶口內，再轉帳到香港的一間貿易行的銀行戶口內，然後從貿易行的銀行戶口轉帳到自己的個人銀行戶口內，之後提取了該筆款項。上訴法庭把刑期由5年監禁減為4年監禁。" } }, { "doc_id": 65, "seg_id": 36, "translation": { "en": "(5)In HKSAR v. Zhan Jian Fu (CACC 258/2007), a Taiwanese woman was defrauded of approximately $2,000,000 by the appellant. The appellant pleaded guilty to two counts of ‘money laundering’ which involved a total sum of HK$2,000,000. He was a mainlander who came to Hong Kong in November 2005 and set up accounts with two banks. Between February and April 2006, a sum of HK$2,000,000 was remitted into the defendant’s accounts from Taiwan. The Appellant withdrew money from the accounts from time to time. He claimed that he was persuaded by someone to set up the abovementioned accounts and acted upon someone’s directions to withdraw money from the accounts from time to time. The Court of Appeal held that it was appropriate to adopt 3 years’ imprisonment as the respective starting points of the charges. Having considered the totality of sentence, the Court of Appeal held that 8 months of the first charge and 2 years of the second charge should be served consecutively, so the sentence was 32 months’ imprisonment.", "zh-HK": "(5)HKSAR v. Zhan Jian Fu, CACC 258/2007。一名台灣女子被上訴人騙取了約$2,000,000的款項。上訴人承認兩項「洗黑錢」罪，涉及的金額共約2,000,000港元，上訴人是內地人。在2005年11月來港及在兩間銀行開設了戶口。2006年2 月至4月期間，有一筆2,000,000港元的款項從台灣匯入被告人的戶口內。上訴人不時提取該戶口內的金錢。他聲稱是被人游說開設上述戶口，並受人指使不時在該戶口提取金錢。上訴法庭認為每項控罪以3年為量刑基準是合適的。考慮到整體刑期後，上訴法庭裁定第一項控罪的8個月監禁刑期與第二項控罪的2年監禁刑期分期執行，即32個月監禁。" } }, { "doc_id": 65, "seg_id": 37, "translation": { "en": "(6)In HKSAR v. Lee Ka Ki (CACC 148/2007), the appellant was convicted after trial of two counts of money laundering, and was sentenced respectively to 4 years’ and 5 years’ imprisonment, to be served concurrently. In 2003 and 2004, the appellant opened a number of accounts with two banks in Hong Kong. Between 27 August 2003 and 26 February 2005, a number of deposits, totaling HK$570,000, were made into one of the accounts. And between 8 October 2004 and 3 June 2005, some other deposits in the total amount of HK$11,000,000 were made into another bank account. But shortly afterwards, that sum of money was withdrawn or transferred into other bank accounts. The appellant claimed that he set up those accounts in order to receive illegal bets on behalf of others, and that he would be paid $8,000 per month as remuneration. The Court of Appeal held that the overall sentence of 5 years’ imprisonment was manifestly excessive, and the appropriate term should be one of 3 years’ imprisonment.", "zh-HK": "(6)HKSAR v. Lee Ka Ki, CACC 148/2007。上訴人經審訊後被裁定兩項洗黑洗錢罪罪名成立，分別被判入獄4年及5年，同期執行。在2003年和2004年，上訴人分別在香港的兩間銀行開設了多個銀行戶口。2003年8月27日至2005年2月26日期間，一筆達HK$570,000的款項被多次分別存入其中一個戶口，而在2004年10月8日至2005年6月3日期間，另一筆共HK$11,000,000的款項被存入另一個銀行戶口內，但該筆款項不久就被人提取或轉帳到其他銀行戶口。上訴人聲稱他開設上述戶口是用作替人收受非法賭注，每月可獲8,000元的報酬。上訴法庭認為總刑期為5年監禁是明顯過重，適當的的刑期應為3年監禁。" } }, { "doc_id": 65, "seg_id": 38, "translation": { "en": "(7)In HKSAR v. Chen Szu Ming (CACC 270/2005), the appellant pleaded guilty to three counts of money laundering. That case involved what the Court of Appeal described as ‘a sophisticated money laundering scheme’ which took months of elaborate planning and preparation. The amount involved was HK$17,000,000. The starting point was 5 years and the appellant was sentenced to 40 months’ imprisonment, to be served concurrently.", "zh-HK": "(7)HKSAR v. Chen Szu Ming, CACC 270/2005。上訴人承認三項洗黑錢罪。該案涉及一項被上訴庭形容為「計劃精密洗黑錢方案」，並經過多個月的周詳準備計劃，涉案款額為HK$17,000,000。該案的量刑基準是5年，上訴人被判40個月監禁，同期執行。" } }, { "doc_id": 65, "seg_id": 39, "translation": { "en": "(8)In HKSAR v. Fan Shek Hung (CACC 393/2006), the appellant was convicted after trial of one count of money laundering and a sentence of 6 and a half years was imposed on him. The case involved defrauding the purchaser in a property transaction of the deposit in the sum of $31,000,000. Although the appellant was only involved in the fraud of $15,000,000, the Court of Appeal came to the view that it was an orchestrated fraudulent scheme and the appellant should therefore be sentenced for money laundering, rather than for the indictable offence underlying the money laundering activities. The Court of Appeal held that the starting point of imprisonment for 6 and a half years was manifestly excessive and reduced it to 5 years and 8 months.", "zh-HK": "(8)香港特別行政區對范石洪, CACC 393/2006。上訴人經審訊後被裁定一項洗黑錢罪罪名成立及被判入獄6年半。案件涉及詐騙樓宇買家$31,000,000的按金，雖然上訴人只牽涉其中的$15,000,000，但上訴法庭考慮到該案涉及周詳的詐騙計劃，認為上訴人是應該就洗黑錢罪被判刑，而不是就洗黑錢背後的可公訴罪行被判罰，因此認為6年半監禁的起點明顯是過高，遂將之減為5年8個月監禁。" } }, { "doc_id": 65, "seg_id": 40, "translation": { "en": "(9)In HKSAR v. Wang Yu Hsin (CACC 173/2009), international and cross-regional scams were perpetuated by an international fraud syndicate on victims who were mostly mainlanders studying and living overseas. The modus operandi of the syndicate was that it phoned the victims in the names of different companies, misinforming them that they had won a sizeable lottery at the lucky draw held by the companies. The victims had to pay various advance fees, such as administrative fees and tax, before they could receive the lottery payment. The victims acted upon the instructions and made deposits into bank accounts in Hong Kong. They later found out that they had been cheated. Between February and July 2008, members of the syndicate lured people in many countries to remit money into the designated bank accounts in Hong Kong, and the total amount involved was HK$11,600,000. There were ten defendants in the case and a total of 58 charges, all being money laundering charges except one theft charge, were laid respectively against them. The three appellants were D7, D8 and D9 in the original trial. D7 was the wife of the key figure of the fraud syndicate. She was sentenced to 5 years and 6 months’ imprisonment on Charge 47, which was a money laundering charge with no specific amount stated. D1 and D2 were co-defendants of the same charge and as they had pleaded guilty to other charges, Charge 47 was kept in the court’s file. In respect of Charge 1 that D1 and D2 were convicted of, the facts were that D1 set up eight bank accounts within half a month since March 2008 and made use of six of them to deal with HK$5,000,000 in proceeds of crime. D2 set up ten bank accounts between February and April 2008 and made use of six of them to deal with HK$6,500,000 in proceeds of crime. The starting point for D1 and D2 was 4 years’ imprisonment. The Court of Appeal took the view that the sentence passed on D7 should not be higher than that, so the term of 5 years and a half was reduced to 4 years. As for D8, he pleaded guilty to five counts of money laundering involving a sum of HK$600,000. D9 pleaded guilty to one count of money laundering involving HK$900,000. Regarding the sentences on the two of them, the Court of Appeal was of the view that a starting point of 3 years’ imprisonment, as adopted by the court, was sufficient to reflect the full range of factors such as that the case involved an international syndicate, the charges were perpetrated by the defendants over a wide geographical region and the amount of money laundered.", "zh-HK": "(9)香港特別行政區對王語忻, CACC 173/2009。案件涉及跨國跨地區的國際行騙集團，受害人大部分都是在海外求學及居住的內地人。行騙手法是以不同公司的名義致電受害人，訛稱他們在其公司所舉辦的抽獎活動中贏得巨獎，受害人須預先繳付各項行政費用及稅款後才可領取獎金。受害人依其指示將款項存入指定的香港銀行戶口內，之後發覺被騙。在2008年2月至7月期間，集團成員誘騙分佈多個國家的人士將款項匯入香港指定的銀行戶口內，涉款共愈HK$11,600,000。該案共有10名被告。他們分別被控共58項罪行，除一項盜竊罪外，其餘的都是洗黑錢罪。三名上訴人分別是原審時的第7、8及9被告。第7被告是詐騙集團核心人物的妻子。第7被告被判第47項洗黑錢罪的控罪，該控罪沒有指明涉案的金額數目，第7被告被判5年半監禁。第1及2被告是該控罪的同犯，由於他們承認其他控罪，法庭因此將第47項控罪存檔。就第1及2被告被判罪名成立的第一項控罪而言，第1被告涉及在2008年3月起的個半月時間內，開設了8個銀行戶口，並利用其中的6個月戶口來處理HK$5,000,000的黑錢。而第2被告則在2008年2月至4月期間，開設了10個銀行戶口，並利用其中的6個戶口來處理HK$6,500,000的黑錢。第1及2被告的量刑起點為4年監禁。上訴法庭認為第7被告的刑期不應比他們高，因此將刑期由5年半監禁減至4 年監禁。至於第8被告，他承認5項洗黑錢罪，涉及的款項達HK$600,000。而第9被告則承認一項洗黑錢罪，涉及款額達HK$900,000。至於兩人的刑期，上訴法庭認為法庭以3年監禁作為量刑基準已充分反映出案件涉及跨國集團、他們及控罪所涉及的地區廣泛性和金額等因素。" } }, { "doc_id": 65, "seg_id": 41, "translation": { "en": "Position of the Respondent", "zh-HK": "答辯人的立場" } }, { "doc_id": 65, "seg_id": 42, "translation": { "en": "Mr. Robert Lee, Senior Public Prosecutor, submitted on behalf of the Respondent that there were aggravating factors in the present case because it involved money laundering activities perpetrated by an international fraud syndicate after elaborate planning, and that D2 was a member of the syndicate.", "zh-HK": "代表答辯人的李鏡鏞高級檢控官指出本案存有加刑理由,原因是案件涉及一個跨國犯罪集團經周詳策劃所作出的洗黑錢活動，而第2被告人是該犯罪集團的其中一份子。" } }, { "doc_id": 65, "seg_id": 43, "translation": { "en": "Further, Mr. Lee submitted that the starting point of 4 years’ imprisonment adopted by Deputy Judge Chan had been adopted in Chow Ying Kai and Wang Yu Hsin, as well as in HKSAR v. Mak Shing (CACC 322/2001). In the latter case, the appellant was convicted after trial of three counts of money laundering and was sentenced to 4 years’ imprisonment in respect of each count, to be served concurrently. The amount involved was $15,000,000 which represented monies from thefts in the Mainland China. The Court of Appeal was of the view that the term of 4 years was an appropriate one, but in view of the legal arguments involved at the time of trial, the sentence was reduced by 1 year.", "zh-HK": "另外，李律師指陳法官所採用的4年監禁量刑基準除了採用於Chow Ying Kai 及王語忻一案外，亦曾採用於HKSAR v. Mak Shing, CACC 322/2001一案，在該案上訴人經審訊後被裁定三項洗黑錢罪罪名成立，每項控罪的刑期為4年監禁，同期執行，涉案款額達$15,000,000，有關款項是在中國內地偷竊得來的金錢，上訴法庭認為4年監禁的量刑基準是適當的，但由於審訊時涉及法律爭議，故此扣減1年監禁的刑期。" } }, { "doc_id": 65, "seg_id": 44, "translation": { "en": "Mr. Lee also adduced the following two cases:", "zh-HK": "李律師亦提出以下兩宗案例：" } }, { "doc_id": 65, "seg_id": 45, "translation": { "en": "In HKSAR v. Abayomi Bamidele Fayomi (CACC 159/2009), the appellant was charged with three counts of money laundering. An amount of HK$1,243,261.78 was involved and it represented the proceeds of a deception case. The Court of Appeal agreed that the starting point of 3 years and 6 months’ imprisonment was appropriate.", "zh-HK": "HKSAR v. Abayomi Bamidele Fayomi (CACC 159/2009)，上訴人被控三項洗黑錢控罪，涉案金額是HK$1,243,261.78，該筆金錢是一宗詐騙罪的收益。上訴法庭同意3年6個月監禁為量刑基準是適當的。" } }, { "doc_id": 65, "seg_id": 46, "translation": { "en": "In HKSAR v. Jain Nikhil & Anor (CACC 405/2006), two appellants were charged with two counts of conspiracy to money launder and one count of using forged passports, and the amount involved was HK$3,900,000. The Court of Appeal held that a starting point of 5 years’ imprisonment was appropriate for the money laundering charges.", "zh-HK": "HKSAR v. Jain Nikhil and Another (CACC 405/2006)，兩名上訴人被控兩項串謀洗黑錢罪及一項行使假護照罪，涉案金額是HK$3,900,000。上訴法庭認為洗黑錢罪的5年監禁量刑基準是適當的。" } }, { "doc_id": 65, "seg_id": 47, "translation": { "en": "List of authorities", "zh-HK": "案例一覽" } }, { "doc_id": 65, "seg_id": 48, "translation": { "en": "The amounts involved and the sentence of the various cases adduced by the Counsel on behalf of both parties are listed as follows:", "zh-HK": "兩位律師所提出的案件的涉案金額及刑期可見於下表：" } }, { "doc_id": 65, "seg_id": 49, "translation": { "en": "The view of this Court", "zh-HK": "本庭的意見" } }, { "doc_id": 65, "seg_id": 50, "translation": { "en": "We agree that in the circumstances of the present case, a more severe sentence should be imposed.", "zh-HK": "本庭同意本案的背景需要採用較嚴峻的量刑：" } }, { "doc_id": 65, "seg_id": 51, "translation": { "en": "This case involved cross border criminal activities. The Appellant is a Taiwan resident who came to Hong Kong to set up local bank accounts with the view to receive overseas deposits from fraud cases. As remarked in the precedents, such acts of the offenders will tarnish the reputation of Hong Kong as an international finance and banking hub.", "zh-HK": "本案涉及跨境犯罪因素，上訴人是台灣居民，在進入香港後開設本地銀行戶口，用以接收來自詐騙案的海外存款。正如案例所說犯案者的有關行為是會損害香港國際金融及銀行中心的形象。" } }, { "doc_id": 65, "seg_id": 52, "translation": { "en": "The case involved well-organized illegal activities with elaborate planning. To a certain extent, D2 had knowledge of the involvement of criminal activities in the case and the source of the monies. D2 was arranged to come to Hong Kong from Taiwan with other defendants. While in Hong Kong, D2 and other defendants were arranged to stay in a rented apartment and were received by a man called ‘Lo Chiu’. D2 opened three bank accounts in Hong Kong and falsely claimed to the bank staff that he was a wholesaler. When the police searched the apartment rented by D2 and another person, they found inside it the name cards of the Applicant, on which the words of ‘山珍海味食物公司’ （which literally mean a food company of delicacies from land and sea） and its address were printed. The money involved in this case amounted to $25,800,000 and the money laundering activities were carried out over a period of two months.", "zh-HK": "案件涉及有組織性及周詳計劃的犯罪活動。第2被告對涉案罪行的參與程度和對款項的來源有一定的知情度。第2被告人被安排與其他被告人由台灣到香港。在香港期間，第2被告人與其他被告人被安排在租住單位居住，並由一名叫「老趙」的男子接待。第2被告人在香港開設了三個銀行戶口，並對銀行職員訛稱他是批發商。警方在第2被告人與另一名人士租賃的單位內搜到申請人的卡片，上面寫着「山珍海味食物公司」及其地址。涉案款項達$25,800,000，而洗黑錢活動長達兩個月。" } }, { "doc_id": 65, "seg_id": 53, "translation": { "en": "According to the Admitted Facts, D2 told the police under caution that his accounts were set up to receive remittances from a Singaporean friend. He also said that a person called ‘Lo Chiu’ directed him to launder the money.", "zh-HK": "根據雙方同意的案情，第2被告人在警誡下說他的戶口是用作接收他一名星加坡朋友的匯款。他亦說是一名叫「老趙」的人士指使他洗黑錢的。" } }, { "doc_id": 65, "seg_id": 54, "translation": { "en": "However, this Court must also take into account the amount involved. D2 personally dealt with approximately $2,500,000 in proceeds of crime. In accordance with the above authorities, admittedly the courts have adopted the same starting point of only 4 years as in the present case, and some courts have even adopted one that is less than 4 years, despite the involvement of greater amounts in many of those cases. This Court is of the view that the appropriate sentencing starting point should be one of 3 years and 6 months, and reducing it by 1 month on account of D2’s admission of the facts, the final sentence imposed is one of 3 years and 5 months’ imprisonment.", "zh-HK": "但本庭同時仍須考慮涉案金額。第2被告人本身所處理的黑錢約$2,500,000。根據上述的案例，的確是有多宗案件所涉及的款項雖比本案多，但法庭只是採用與本案相同的4年量刑基準，有些甚至採用低於4年的基準。本庭認為本案適當的量刑基準應為3年6個月監禁，在扣減第2被告人因同意案件的1個月減免後，最終刑期定為3年5個月監禁。" } }, { "doc_id": 65, "seg_id": 55, "translation": { "en": "Mr Wong Hay Yiu, instructed by Messrs. Lo, Wong & Tsui, for the Applicant.", "zh-HK": "答辯人：由律政司高級檢控官李鏡鏞代表。" } }, { "doc_id": 65, "seg_id": 56, "translation": { "en": "Mr Robert Lee, Senior Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "申請人：由盧王徐律師事務所轉聘王熙曜大律師代表。" } }, { "doc_id": 66, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the Reasons for Judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 66, "seg_id": 2, "translation": { "en": "The applicant was charged with one count of non-consensual buggery, contrary to section 118A of the Crimes Ordinance (“the Ordinance”), Cap. 200, Laws of Hong Kong. He was convicted of the offence after trial before Barnes J and a jury. He applied for leave to appeal against conviction.", "zh-HK": "申請人被控一項「未經同意下作出的肛交」罪，違反《刑事罪行條例》（‘《條例》’）（香港法例第 200 章）第 118(A) 條。案件經高等法院原訟法庭張慧玲法官及陪審團審理後，申請人被裁定罪名成立。申請人就定罪提出上訴許可申請。" } }, { "doc_id": 66, "seg_id": 3, "translation": { "en": "We heard the application on 25 April 2008. At the conclusion of the hearing, we granted leave and, treating the application as the appeal itself, allowed the appeal and quashed the conviction. We now set out the reasons for our judgment.", "zh-HK": "本庭於 2008 年 4 月 25 日就該申請進行聆訊，審結後批准申請，並視該申請為正式上訴、批准上訴及撤銷定罪。以下是本庭的判案理由。" } }, { "doc_id": 66, "seg_id": 4, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 66, "seg_id": 5, "translation": { "en": "The particulars of offence stated that on 20 November 2005 the applicant committed buggery with a female (hereinafter called “the victim”) without her consent.", "zh-HK": "控罪詳情指申請人在 2005 年 11 月20 日在未得一名女士（以後簡稱‘女事主’）同意下與女事主進行肛交。" } }, { "doc_id": 66, "seg_id": 6, "translation": { "en": "The prosecution’s case was that the applicant came to know the victim in 2002 through the internet. They met afterwards and had sex for the first time at the victim’s residence. They became sex partners thereafter. Apart from vaginal intercourse, they both agreed to have sado-masochistic activities, which included taking turns to be tied up.", "zh-HK": "控方案情顯示申請人與女事主於 2002 年經互聯網認識，其後兩人約會及在女事主家中首次發生性關係。之後，兩人一直維持着性伴侶的關係。兩人除了進行陰道性交外還同意進行性虐待行為，包括兩人輪流被對方捆綁。" } }, { "doc_id": 66, "seg_id": 7, "translation": { "en": "In late 2003, they had anal sex for the first time. Before having anal sex, they had vaginal intercourse. In the course of anal sex, the victim told the applicant that she felt pain and did not want to have anal sex. The applicant then stopped the anal sex immediately.", "zh-HK": "2003 年底雙方進行了第一次的肛交，在進行肛交前雙方先進行陰道交，在進行肛交的過程中女事主對申請人說她感到痛楚及不想進行肛交，申請人就即時中止肛交行為。" } }, { "doc_id": 66, "seg_id": 8, "translation": { "en": "Although the victim indicated on this occasion that she was not willing to have anal sex, they still had anal sex for four to five times afterwards. In February 2005, they had anal sex once again. The victim first put on a dildo bought by the applicant and then inserted it into the applicant’s anus. Afterwards, the applicant inserted the same dildo into the victim’s anus and then had anal sex with her using his own penis. About five minutes later, the victim said to the applicant “[the penetration is] so deep [and it was] so painful”, and the applicant then stopped the anal sex.", "zh-HK": "雖然女事主在這次事件中曾表示過她不願意進行肛交，但之後雙方仍進行了四至五次的肛交。2005 年 2 月雙方又進行了一次肛交，女事主首先帶上一個由申請人購買回來的假陽具，然後將之插入申請人的肛門內，之後申請人用同一個假陽具插入女事主的肛門內，接着用自己的陰莖與女事主進行肛交。約五分鐘後，女事主對申請人說：「好入好痛」，申請人便中止肛交行為。" } }, { "doc_id": 66, "seg_id": 9, "translation": { "en": "The victim came to know a new boyfriend after this occasion and so did not meet the applicant again.", "zh-HK": "在這次之後，女事主認識了另外一名男朋友，因而沒有再與申請人見面。" } }, { "doc_id": 66, "seg_id": 10, "translation": { "en": "On 19 November 2005, the victim went to the applicant’s residence and had oral sex with him.", "zh-HK": "2005 年 11 月 19 日女事主到申請人的住所及與他口交。" } }, { "doc_id": 66, "seg_id": 11, "translation": { "en": "On the following day (i.e. the day of the offence), the victim went to the applicant’s residence again. On her evidence, she visited the applicant because she wanted to have sexual intercourse with him. The victim agreed to be tied up by the applicant with leather buckles, chains and ropes. Her legs were tied up to her head and her body was folded up. The applicant covered her mouth and eyes with kraft tapes and then they had vaginal intercourse. Later, the applicant wanted to have anal sex with the victim, and he applied lubricant to her anus and his penis. He also said to the victim something like “let me satisfy your needs first” and “how about penetrating [your] anus”. Knowing that the applicant wanted to have anal sex, the victim started to put up struggle and said “No” to him. At this moment, the tape covering her mouth was loosened, and she said to the applicant “No, [it is] so painful.” Although she had been tied up, she still tried to twist her body in order to stop the applicant from conducting anal sex. However, he did not stop his movement and forcefully proceeded with the anal sex. Feeling painful and hurt, the victim kept saying “No” and twisting her body. In the end, she managed to make the applicant pull his penis out of her anus.", "zh-HK": "翌日（即案發當日）女事主再次到申請人的住所。根據女事主的証供，她到訪申請人是因為想與他性交。女事主同意被申請人用皮扣、鎖錬和繩來捆綁。她的雙腳被捆綁到她的頭部，整個身體被摺合起來。申請人用牛皮膠紙封貼着女事主的眼睛和口。雙方之後進行陰道交。其後，申請人欲與女事主進行肛交，他將潤滑劑塗在女事主的肛門及自己的陰莖上，並對女事主說「等我滿足下你的需要先啦」、「不如插下後面」等說話，此時女事主知道申請人欲進行肛交便開始掙扎及對申請人說：「不好」。此刻貼着她嘴巴的膠紙鬆脫了，她就對申請人說：「不好，好痛。」。她雖然被綑綁，但她扭動身體以阻止申請人進行肛交，但申請人沒有停止動作，強行繼續與女事主進行肛交。由於女事主感到痛楚及難受，她不斷說：「不好」，女事主不斷扭動身體，她最終成功地令到申請人的陰莖退出她的肛門。" } }, { "doc_id": 66, "seg_id": 12, "translation": { "en": "Thereafter, the applicant untied the victim. She removed the kraft tape covering her mouth and left the room. However, soon afterwards she returned to the room upon the applicant’s suggestion and had another sexual intercourse with the applicant. This time the victim tied up the applicant and tortured him, following which they had vaginal intercourses for twice and oral sex for once.", "zh-HK": "申請人之後為女事主鬆綁，女事主撕走口部的牛皮膠紙及離開房間。但不久之後她接納申請人的建議重返房間，並與申請人進行另一次的性交，這次是女事主綁起申請人及虐待他，兩人之後進行兩次陰道交和一次口交。" } }, { "doc_id": 66, "seg_id": 13, "translation": { "en": "Defence of the applicant", "zh-HK": "申請人的答辯" } }, { "doc_id": 66, "seg_id": 14, "translation": { "en": "The applicant testified that originally he intended to break up with the victim on the day of the offence and was therefore apathetic to her. However, she took the initiative to embrace and kiss him. She requested him to tie her up and have anal sex. The applicant then tied her up and covered her mouth and eyes with kraft tape. He had vaginal intercourse with her and then said to her “let me satisfy your needs first”. Then he applied lubricant to her anus and his penis. He testified he in fact did not want to have anal sex with her at that time and that he simply wanted “to do it perfunctorily, to perform the duty”. He denied having had anal sex with the victim by force. He claimed that she had agreed to do it. On his evidence, she neither cried in pain nor put up any struggle. However, after a while he noticed that she did not look good. He then tore off the kraft tape that covered her mouth. She said to him, “Not too comfortable, it’s a bit painful”. The applicant therefore stopped having sex and untied her. Then she played the opposite role by tying up the applicant and carried out sado-masochistic activities upon him. Afterwards, they had vaginal intercourse and oral sex.", "zh-HK": "申請人稱在案發當日他原本打算與女事主分手，所以對她態度冷淡，但女事主主動擁抱和吻他，並要求他綁起她及進行肛交。申請人於是將女事主綁起及用牛皮膠紙封貼着她的口和眼睛。他首先與女事主進行陰道交，然後對女事主說：「等我滿足下你嘅需要先啦。」，之後將潤滑劑塗在女事主的肛門及自己的陰莖上。他說他當時根本不想與女事主進行肛交，他只是想「交貨、交差了事」。他否認強行與女事主進行肛交。他稱當時女事主是同意這樣做的，她既沒有喊痛，亦沒有掙扎過，但後來他看見女事主面有難色，於是撕走她口部的牛皮膠紙，女事主對他說：「不是太舒服，有小小痛。」，申請人於是停止性行為，並為她鬆綁。接着，女事主反過來捆綁申請人，對他進行性虐待，雙方之後再進行陰道交及口交。" } }, { "doc_id": 66, "seg_id": 15, "translation": { "en": "Directions on “genuine belief”", "zh-HK": "「真實相信」的指引" } }, { "doc_id": 66, "seg_id": 16, "translation": { "en": "The first ground of appeal advanced by Mr. Wong, Counsel for the applicant, was that the trial judge had declined his request to direct the jury that the applicant “genuinely believed that the victim consented to the sexual intercourse”. The standard direction to the jury provided by the Judicial Studies Board on the issue of whether the defendant charged with a sexual offence believed that the victim consented to sexual intercourse is as follows:", "zh-HK": "代表申請人的黃大律師就上訴所持的第一項上訴理由是張法官在原審時拒絕他的要求對陪審團作出申請人「真實相信女事主同意性交」的指引。「司法人員培訓委員會」提供關於性罪行中被告人是否相信受害人同意性交的標準陪審團指引是這樣的：" } }, { "doc_id": 66, "seg_id": 17, "translation": { "en": "If it is or may be the case that the defendant believed that she was consenting, then he cannot be guilty of rape. It is not for the defendant to prove that he believed that she was consenting; rather, it is for the prosecution to prove, so that you are sure, that he did not believe that she was consenting to sexual intercourse. And what if he held that belief but was mistaken? Well, if it is or may be the case that he held a genuine but mistaken belief that she was consenting, then you must acquit him. In deciding whether or not he believed or might have believed that she was consenting, you should have regard to the existence or absence of reasonable grounds for such a belief, and to all the surrounding circumstances. But the question must always be whether you are sure that he himself did not hold such a belief.1", "zh-HK": "「若情況是，或者可能是：被告相信她是同意性交的，那麼，他的強姦罪名便不成立。被告無須證明，他相信受害人是同意性交的。控方必須證明，令你們肯定：被告不相信受害人是同意與他性交的。若被告只是因為誤會才相信受害人是同意與他性交的，那又會怎樣呢？若情況是，又或可能是被告真的以為受害人是同意性交的，但其實是他誤會了，那麼，你們便須裁定他無罪。你們決定被告是否相信，或者可能相信受害人是同意性交時，除了應該考慮是否有合理的理由，令被告相信如此外，還須考慮所有的周遭情況。問題始終是：你們是否肯定，被告本人其實並無這樣相信過。」" } }, { "doc_id": 66, "seg_id": 18, "translation": { "en": "Although this standard direction is designed for the offence of rape, it is also applicable to other offences which involve the issue of whether the victim has consented to a sexual act.", "zh-HK": "這項標準指引是針對強姦罪名而制定的，但其內容亦適用於其他涉及受害人是否同意進行性行為的控罪。" } }, { "doc_id": 66, "seg_id": 19, "translation": { "en": "Legal principles", "zh-HK": "法律原則" } }, { "doc_id": 66, "seg_id": 20, "translation": { "en": "The legal principles governing “genuine belief” are as follows:", "zh-HK": "以下是「真實相信」的有關法律原則：" } }, { "doc_id": 66, "seg_id": 21, "translation": { "en": "1.In the House of Lords case of R v Morgan and others [1976] A.C. 182, Lord Hailsham of St. Marylebone held (at p. 214) that:", "zh-HK": "1.根據 R v Morgan and others [1976] A.C. 182，英國上議院 Lord Hailsham of St. Marylebone (第 214 頁)裁定：" } }, { "doc_id": 66, "seg_id": 22, "translation": { "en": "The “actus reus” for the offence of rape is having sexual intercourse with the victim without her consent.", "zh-HK": "強姦罪的「犯罪行為」是未得女事主同意而進行的性交。" } }, { "doc_id": 66, "seg_id": 23, "translation": { "en": "The “mens rea” for that offence is the defendant’s intention to have sexual intercourse with the victim without her consent.", "zh-HK": "這項控罪的「犯罪意念」是被告人存有未經受害人同意而與她進行性交的意念。" } }, { "doc_id": 66, "seg_id": 24, "translation": { "en": "The prosecution has to prove that the defendant had such an intention in order to have him convicted.", "zh-HK": "控方必須証明被告人有這樣的意念才可以令被告人入罪。" } }, { "doc_id": 66, "seg_id": 25, "translation": { "en": "If the defendant genuinely believed that the victim consented to sexual intercourse, the aforesaid intention would be negated.", "zh-HK": "若果被告人是真實相信受害人同意進行性交，這就可以否定他存有上文所述的犯罪意念。" } }, { "doc_id": 66, "seg_id": 26, "translation": { "en": "The principles set out in Morgan can also be extended to cover other sexual intercourses without the consent of the female victims.", "zh-HK": "Morgan 一案制定的原則亦可以引申至其他未得女事主同意而進行的性行為。" } }, { "doc_id": 66, "seg_id": 27, "translation": { "en": "2.In Morgan, the trial judge directed the jury on “genuine belief”, in the course of which he told them that if the defendant did not have reasonable grounds for proving he had such a belief, then they must convict him. The House of Lords held that, where the defendant genuinely believed that the victim consented to sexual intercourse, the jury could not convict him on the basis that he did not have reasonable grounds for such a belief. In other words, the test for such a belief is a subjective one, not an objective one.", "zh-HK": "2．Morgan 一案的爭議點是原審法官在向陪審團作出被告人「真實相信」的指引時對他們說，若果被告人沒具有合理的理由來証明他是這樣相信的話，他們就需要裁定被告人有罪。英國上議院法庭裁定若被告人真實相信受害人是同意進行性交的話，陪審團便不能因被告人沒有合理理由這樣相信而裁定他有罪。換句話說，這個信念是主觀的，不是客觀的。" } }, { "doc_id": 66, "seg_id": 28, "translation": { "en": "3.As long as there is sufficient evidence for the issue of “genuine belief” to be raised, the judge has to give appropriate directions to the jury, whether such evidence or foundation comes from the prosecution or the defence. See: Hong Kong Archbold 2007 paragraph 4-194, Morgan (at p. 214 A) and Palmer v R (1971) 55 Cr App R 223 at p. 229.", "zh-HK": "3.無論有關「真實相信」的証據或基礎是來自控方或辯方，只要有充分的証據去提出「真實相信」這個理據，法官便有需要對陪審團作出合適的指引，見：Hong Kong Archbold 2007 第 4─194 段，Morgan （214 頁 A 行）及 Palmer v. R. [1971] 55 Cr. App. R. 223 第 229 頁。" } }, { "doc_id": 66, "seg_id": 29, "translation": { "en": "4.In R v Taylor (1985) 80 Cr App R 327, the English Court of Appeal pointed out (at p. 330) that the court was not bound to give a direction on “genuine belief” in each and every rape case. Whether such a direction was necessary, and whether the direction as given was fair, was to be determined by reference to the facts of the case, in particular the evidence of the victim and the defendant. The court would give such a direction only where there was room for a defence of a mistaken belief that the victim had consented to the intercourse. Also see R v Adkins [2000] 2 All ER 185, R v Kwok Tak Ming Danny [1996] 4 HKC 395 and HKSAR v Yiu Chi Wang CACC 582/2002.", "zh-HK": "4.在 R. v. Taylor [1985] 80 Cr. App. R. 327第 330 頁，英國上訴法庭指出法庭並不是在每一宗強姦案件都必須作出「真實相信」的指引，而是要視乎案情而定，特別是要依賴受害人和被告人的証供來決定是否需要作出有關指引及裁定該項指引是否公平。案件必須存有被告人誤以為受害人同意進行性交的空間法庭才會作出該項指引。另見：R. v. Adkins [2000] 2 All ER 185, R v Kwok Tak Ming Danny [1996] 4 HKC 395 （郭德明 [譯音]）及 HKSAR v. Yiu Chi Wang [饒志宏] CACC 582/2002." } }, { "doc_id": 66, "seg_id": 30, "translation": { "en": "Authorities", "zh-HK": "案例" } }, { "doc_id": 66, "seg_id": 31, "translation": { "en": "The cases cited by the parties show that, whenever the court gave a direction on “genuine belief”, there were some special elements in the case that warranted such a direction.", "zh-HK": "雙方所援引的案例都顯示當法庭作出「真實相信」的指引時，案件是存有某些特別的因素而需要法庭作出該項指引，" } }, { "doc_id": 66, "seg_id": 32, "translation": { "en": "In Morgan, the defence put forward by the defendants was that they had been invited by the victim’s husband to have sex with the victim. Their case was that the victim’s husband had told them the victim was consenting to sexual intercourse with them.", "zh-HK": "在Morgan 一案，被告人的答辯理由是他們是被女事主的丈夫邀請與女事主發生性行為的。他們辯稱女事主的丈夫告訴他們女事主是同意與他們性交的。" } }, { "doc_id": 66, "seg_id": 33, "translation": { "en": "In HKSAR v Wong Shing Chung (CACC 66/1999), this Court (Leong JA, Woo J (as he then was) and Pang J) held that a direction on “genuine belief” was necessary in that case. This Court said on page 7 of the Judgment:", "zh-HK": "香港特別行政區訴黃盛中（CACC 66/1999），本庭（上訴法庭法官梁紹中、原訟法庭法官胡國興（當時官階）、原訟法庭法官彭鍵基）裁定該案法庭是需要作出「真實相信」的指引。本庭在判案書第七頁這樣說：" } }, { "doc_id": 66, "seg_id": 34, "translation": { "en": "We do not agree that the facts of the present case did not leave room for a belief on the part of the applicant that the victim consented [to sexual intercourse]. The applicant’s defence was that he did not have actual sexual intercourse with the victim, and that any sex-related conduct on his part had been done with the belief that the victim consented to it. He said the victim had flirted with him, that they knew each other very well, and that on the night in question they had been massaging each other for a very long time. They had also consumed much wine and the applicant, under the influence of alcohol, might have thought that the victim consented to further intimate behaviour. This might well be the genuine belief of the applicant at that time. Therefore, the facts of the present case do leave room for considering whether the applicant held or might have held a ‘genuine belief’ that the victim was consenting.", "zh-HK": "「本庭認為，本案案情並不是無可以導致申請人以為受害人同意之情況存在。申請人答辯他沒有與受害人發生實質之性行為，他所作出的行為如果與性有關的話，是在他相信受害人同意下發生的。他說受害人曾挑逗他，兩人大家都十分相熟，而當晚兩人一起互相按摩了相當長時間。同時，兩人亦飲了不少酒，申請人於酒後可能認為受害人同意更進一步的親密行為。這可能是申請人當時真實的信念。所以，本案之背景是有空間容納需要考慮申請人是否「真實相信」受害人同意或可能如此相信。」" } }, { "doc_id": 66, "seg_id": 35, "translation": { "en": "In HKSAR v Tsang Sai Kit [1997] 3 HKC 790, the victim had known the defendant for two days, during which they went out and had fun. On the defendant’s evidence, they kissed and the victim offered to stay overnight at the defendant’s residence where they then had sex. This Court (Power V-P, Liu JA and Saied J) held that a direction on “genuine belief” was necessary.", "zh-HK": "在 HKSAR v. Tsang Sai Kit [1997] 3 HKC 790 (曾世傑[譯音])，女事主與被告人相識了兩天，雙方在這兩天內出外玩耍。根據被告人的証供，雙方有接吻及女事主建議到被告人的家裡過夜，之後雙方發生了性關係。本庭（鮑偉華副庭長、上訴法庭法官廖子明、原訟法庭法官沙義德）裁定「真實相信」的指引是需要的。" } }, { "doc_id": 66, "seg_id": 36, "translation": { "en": "In R v Cheung Kin Shing and others [1995] 2 HKC 210, the victim came to know the three defendants at a bar, where they drank beer, played games and took drugs together. Thereafter, the defendants alleged that the victim consented to sexual intercourse with them, but the victim complained she had been raped. This Court (Yang CJ, Gall J and Stuart-Moore J (as he then was)) held that the trial judge should have given a direction on “genuine belief”.", "zh-HK": "R. v. Cheung Kin Shing and others [1995] 2 HKC 210 (張健成 [譯音])，女事主與三名被告人在酒吧相識。女事主與他們一起喝酒、玩遊戲及吸食毒品。之後，被告人稱女事主同意進行性交，但女事主指稱她是被強姦的。本庭（楊鐵樑首席法官、高等法院法官高嘉樂及司徒冕（當時官階））裁定原審法官必須作出「真實相信」的指引。" } }, { "doc_id": 66, "seg_id": 37, "translation": { "en": "In HKSAR v Yiu Chi Wang, the victim got drunk at a bar. When she regained consciousness, she found herself lying on the defendant’s bed and had been raped by the defendant. She had no recollection of what happened that night save that she had got drunk at the bar. The defendant alleged that the victim consented to sexual intercourse with him. The trial judge gave a direction on “genuine belief”.", "zh-HK": "在HKSAR v. Yiu Chi Wang （饒志宏），女事主在酒吧喝醉酒，之後發現自己醒睡在被告人的床上和被被告人強姦。女事主除了對她在酒吧喝醉酒一事有印象外，其餘當晚發生的事情她都記不起。被告人聲稱女事主是同意與他性交的。原審法官作出了「真實相信」的指引。" } }, { "doc_id": 66, "seg_id": 38, "translation": { "en": "On the other hand, there are cases in which the facts simply leave no room for a direction on “genuine belief”.", "zh-HK": "反過來說，有些案情根本不存有法庭須作出「真實相信」的空間。" } }, { "doc_id": 66, "seg_id": 39, "translation": { "en": "In R v Adkins, the victim was a waitress at a bar and the defendant was one of its customers. The victim had repeatedly turned down the defendant’s invitations to take her out or his suggestions of going to her residence. On the day in question, the defendant forcibly entered the victim’s residence and raped her. The defendant alleged that he had sexual intercourse with her only after he obtained her consent. The English Court of Appeal held that it was not necessary to give a direction on “genuine belief”.", "zh-HK": "在R. v. Adkins，女事主是一間酒吧的女侍應，被告人是顧客。女事主多次拒絕被告人提出與她外出的邀請或他到訪她的住所的要求。事發當日被告人強行進入女事主的住所及強姦她。被告人聲稱他是獲得女事主的同意才與她性交的。英國上訴法庭指法庭是不需要就該案作出「真實相信」指引。" } }, { "doc_id": 66, "seg_id": 40, "translation": { "en": "In R v Kwok Tak Ming Danny, the victim worked in a pizza shop. The defendant had repeatedly called the pizza shop and invited the victim out, but the victim declined the invitations. Subsequently, the defendant called the victim again and threatened to beat up her colleagues if she did not meet him. She therefore agreed to meet the defendant. When they met, the defendant intimidated her by saying that he was a leading member of a triad society and that he would protect the victim and her family members. The victim had sexual intercourse with him as she was scared of him. He was charged with rape and intimidation. This Court (Nazareth V-P, Mortimer and Mayo JJA) held that it was not necessary to give a direction on “genuine belief”.", "zh-HK": "在R. v. Kwok Tak Ming Danny (郭德明[譯音])，女事主在一間比薩餅店工作。被告人多次致電該店，並邀請女事主出外，但被女事主拒絕。之後被告人再打電話給女事主及恐嚇她他會毆打她的同事，女事主因此同意與被告人見面。被告人與女事主會面時恐嚇她說他是黑社會高層份子和會保護女事主及她的家人。女事主因害怕被告人而與他發生性關係。被告人被控強姦及恐嚇罪。本庭（黎守律副庭長、上訴法庭法官馬天敏及梅賢玉）裁定法庭不需要作出「真實相信」指引。" } }, { "doc_id": 66, "seg_id": 41, "translation": { "en": "The present case", "zh-HK": "本案的情況" } }, { "doc_id": 66, "seg_id": 42, "translation": { "en": "Mr. Wong cited the aforesaid legal propositions in support of the appeal. He submitted that, had the present case merely involved what happened on the day of the offence, he would not have invited the court to give a direction on “genuine belief”, but the facts of the present case did render it necessary to give such a direction.", "zh-HK": "黃大律師引用這些法律觀點來支持他的上訴。黃大律師表示若本案只是涉及控罪當日所發生的事情，他就不會要求法庭作出「真實相信」的指引，但本案的案情是需要法庭作出有關指引的。" } }, { "doc_id": 66, "seg_id": 43, "translation": { "en": "We agree with the above submission. It can be seen from the abovementioned authorities that directions on “genuine belief” were given in cases where the facts left room for such directions. The present case falls within this category. To sum up the facts, the applicant and victim were sex partners and had been maintaining this relationship for quite some time. During this period, apart from having the usual sexual activities, they also did unusual sexual acts such as sado-masochistic sex and anal sex. Although the victim had indicated that she was feeling painful and reluctant to have anal sex after she had this form of sex with the applicant for the first time in 2003, they did have anal sex for 4 or 5 times afterwards. The incident most relevant to the charge was that, when they had sex for the last time prior to the offence, the victim obviously consented to anal sex. Although they did not see each other for months after having sex on that occasion, they had sexual activities again on 19 and 20 November 2005, and the victim conceded that on both occasions it was she who took the initiative to visit the applicant’s residence and had sex with him. The events on 20 November 2005 not only represented a continuation of their sexual relationship, but, more importantly, showed that they had vaginal intercourse, to which they both consented, before having anal sex. Accordingly, the court could not rule out the need for a direction on “genuine belief” merely because both parties had given different accounts of how they had anal sex on the day in question. In our view, the court had to consider the facts as a whole before determining whether a direction on “genuine belief” was necessary. The present case did not involve the victim having been raped by a stranger. Had this been the case, there would simply have been no room for such a direction. In light of the facts and background of the case, we have no difficulty in concluding that there was room for such a direction. This was because the applicant might, on the basis of his sexual experience with the victim in the past and on the day in question, have mistakenly thought that she consented to buggery.", "zh-HK": "本庭同意上述的法律觀點。從上述的案例可見，在每宗法庭裁定須作出「真實相信」指引的案件的案情中都確實存在法庭需向陪審團作出有關的指引的空間。本案是其中一個例子。綜觀案情，雙方是性伴侶，此關係維持了一段頗長的時間。期間，兩人除進行一般的性行為外還進行性虐待、肛交等非一般的性行為。雖然女事主在 2003 年首次與申請人進行肛交後曾對申請人表示過她感到痛楚及不願意進行肛交，但之後兩人仍進行過四至五次的肛交。與本控罪最有關連的一件事就是雙方在案發前，即最後一次進行性行為時女事主明顯是同意進行肛交的。雖然在這次性交之後，雙方多個月沒有見面，但兩人於 2005 年 11 月 19 日 及 20日再次進行性行為，而女事主承認這兩次都是她主動到訪申請人的住所，並與他發生性行為的。2005 年 11 月 20 日所發生的事除了是雙方性關係的延續外，更重要的是它顯示出雙方在進行肛交之前是會先進行雙方同意的陰道交，故此法庭不能只因雙方就當日如何進行肛交的情況持不同說法而裁定法庭沒有需要作出「真實相信」的指引的。本庭認為法庭要視乎整體的案情來裁定應否作出「真實相信」的指引。本案案情並不是一名陌生人強暴女事主的情況，若是這樣案件根本不存在法庭需要作出有關指引的空間。就本案的案情和背景，本庭毫無困難地裁定案件是存有足夠的空間讓法庭作出有關的指引。這個空間就是申請人可能是依賴雙方過往及當日所進行的性行為的經驗而誤以為女事主是同意進行肛交的。" } }, { "doc_id": 66, "seg_id": 44, "translation": { "en": "Mr. Patrick Cheung, Senior Assistant Director of Public Prosecutions, submitted on behalf of the respondent that the victim might in the past have consented to other form of sexual activities but not anal sex, and hence the facts of the present case would not have given rise to a mistaken but genuine belief on the part of the applicant that the victim consented to anal sex. Mr. Cheung also submitted that, given the applicant’s testimony that he did not intend to have anal sex with the victim at all and that he had sexual intercourse with her only reluctantly upon her request, the facts did not form any basis of a “genuine belief” on the part of the applicant. With respect, we do not agree with this submission, which we consider sweeping and over-generalized. In our view, whether the applicant believed the victim consented to anal sex was to be determined by reference to a whole range of factors, including their sexual relationship over the years and the sexual intercourse that they first had by consent on the day in question. Even if the applicant had anal sex with the victim perfunctorily on that day, it does not mean he did not genuinely believe that she consented to anal sex. The perfunctory act and the belief were not mutually exclusive.", "zh-HK": "代表答辯人的張維新高級助理刑事檢控專員指女事主可能從前是同意進行其他形式的性行為，但她是不同意進行肛交的，因此本案案情不會導致申請人產生一個錯誤而真實的信念，即女事主是同意進行肛交的。他更指申請人作供指他根本無意與女事主進行肛交，他只是因女事主提出要求才勉強地與她進行性交，故此案情並不存在申請人「真實相信」的理據。本庭不同意張大律師這個看法。本庭認為他這個看法太籠統及以遍概全。本庭認為申請人是否相信女事主同意進行肛交是必須根據多方面的因素來考慮，這包括雙方多年的性關係及事發當日雙方先進行同意的性交。就算當日申請人只是敷衍女事主而與她肛交也不代表他沒有真實相信她是同意進行肛交的信念。兩者是沒有抵觸的。" } }, { "doc_id": 66, "seg_id": 45, "translation": { "en": "Mr. Cheung raised the question of whether a direction on “genuine belief” would be needed in every sexual assault case which involved dating pairs or sex partners. We wish to stress that we consider it necessary to give a direction on “genuine belief” in the present case solely on the basis of the facts of the case. Our ruling on the need for such a direction is not based on a dating or sexual relationship between the applicant and the victim. We do not consider it necessary for the court to give a direction on “genuine belief” in each and every sexual assault case involving dating pairs or sex partners. The court does not apply the law mechanically. This is because, even where a case involves dating pairs, a married couple or sex partners, if the facts leaves no room whatsoever for a direction on “genuine belief”, the giving of such a direction would only serve to confuse the jury.", "zh-HK": "張大律師反問法庭是否就每一宗涉及男女朋友或性伴侶關係的性侵犯案件都必須作出「真實相信」的指引？本庭強調法庭認為本案有需要作出「真實相信」的指引純粹是基於本案的案情。本庭並不是因本案的女事主和申請人是男女朋友關係或者兩人有性關係而裁定必須作出有關的指引。本庭並不認為法庭就每一宗涉及男女朋友或性伴侶關係的性侵犯案都必須作出「真實相信」的指引，法庭是不會機械式地運用法律，原因是就算雙方是男女朋友、夫婦或者兩人有性關係，若案情根本不存在法庭須作出「真實相信」指引的空間，而法庭卻作出有關指引，這只會使到陪審團混淆。" } }, { "doc_id": 66, "seg_id": 46, "translation": { "en": "Question raised by the jury", "zh-HK": "陪審團的問題" } }, { "doc_id": 66, "seg_id": 47, "translation": { "en": "Mr. Cheung also pointed out that, in the course of their deliberations, the jury had raised the following question: if, in the course of having anal sex with the victim, the applicant came to know she did not consent to anal sex and thereupon stopped the act, was he guilty of the charge? The question and the direction given by Barnes J were framed in the following terms:", "zh-HK": "張大律師又指陪審團在商議期間曾經提出過一個問題：若申請人在與女事主進行肛交時知道她是不同意而立即停止該行為，那麼該項控罪是否成立呢?這個問題的內容和張法官作出的指引是這樣的：" } }, { "doc_id": 66, "seg_id": 48, "translation": { "en": "Judge: Right, members of the jury, you have a question, namely whether the defendant committed the offence of non-consensual buggery if, in the course of having anal sex with PW1 on 20 November 2005, he immediately stopped the act (that is, having anal sex) as soon as he came to know that PW1 did not consent to anal sex. Having discussed the matter, we are of the opinion that you should be given the following directions: if you find as a fact that the defendant did not know the victim did not consent to anal sex at the moment they started to have anal sex, but soon afterwards he came to know the victim did not consent to it and thereupon he immediately stopped doing it, then he did not commit the offence of non-consensual buggery because he had no knowledge of [the lack of consent] at the outset. It is for the prosecution to prove that he must – to prove that he knew the victim – that means, first, the victim did not consent, and secondly, the defendant knew that the victim did not consent. In other words, the prosecution has to prove that the defendant had anal sex with the victim knowing that she did not consent to it. Therefore, if the fact as you find it is that the defendant had no knowledge at the outset and stopped immediately once he came to have knowledge, then he did not have anal sex with the victim knowing that she did not consent to it. But of course, we do not know what your finding of fact is, and I can only tell you that as a matter of law, if you find as a fact that [the defendant] had no knowledge at the outset and then came to have knowledge during – during the course of [anal sex] and then stopped immediately, then he did not commit the offence of non-consensual buggery. I hope this helps. Thank you.", "zh-HK": "「官：係，各位陪審團，你哋有一個問題就係話喺 2005 年嘅 11 月 20 日呢，第一證人同被告進行肛交嘅時候，當被告知道第一證人唔同意肛交時如果立刻停止動作（即係肛交），係唔係已經構成咗未經同意下作出肛交罪名呢個問題，咁我哋商議過之後，我哋認為畀你嗰個嘅指引應該就係咁，如果你哋裁定咗嘅事實就係當個被告即刻開始進行肛交嗰一刻佢係唔知道個女事主唔同意嘅，但係開始咗之後佢就知道咗個女事主唔同意喇，當佢知道個女事唔同意嘅時候佢就即刻停止呢，咁佢就唔構成喺未經同意下作出肛交喇，因為佢最初係唔知吖嘛，控方要證明佢一定 ─ 證明佢知悉個女事 ─ 即係一來，個女事主唔同意喇，二來，個女事主唔同意呢件事係個被告知道嘛，咁即係話控方要證明個被告人係明知個女事主唔同意之下同佢肛交。所以如果你哋裁定嘅事實係當時被告最初係唔知嘅，但係佢一知嘅時候即刻停，咁佢就冇喺明知個女事主唔同意嘅情況之下進行肛交喇。咁但係當然你哋個事實係咩嘢我哋唔知吖，即係只可以話法律上係咁喇，如果你哋裁定嘅事實最初唔知，做做下 ─ 做嘅時候即刻知道，就即刻停呢，就唔構成呢 ─ 一個未經同意下作出肛交，希望咁樣可以幫到大家。唔該」" } }, { "doc_id": 66, "seg_id": 49, "translation": { "en": "The above question, Mr. Cheung submitted, showed that the jury did consider that the applicant did not know at the beginning whether the victim consented to anal sex and only came to know in the course of anal sex that she did not consent. Mr. Cheung submitted that the guilty verdict returned by the jury showed that they considered the applicant went on with the anal sex upon knowing that the victim did not consent to it. Mr. Cheung added that, as the applicant did know the victim did not consent to anal sex, the possibility of a “genuine belief” simply did not exist.", "zh-HK": "張大律師指陪審團提出這個問題可見他們是有考慮到申請人當初是不知道女事主是否同意進行肛交的，他是在過程中知道女事主是不同意的。張大律師認為陪審團裁定申請人罪名成立顯示他們認為申請人在知道女事主不同意進行肛交後仍然繼續進行該行為。張大律師又認為由於申請人是知道女事主不同意進行肛交的，所以案件根本不存有「真實相信」的信念。" } }, { "doc_id": 66, "seg_id": 50, "translation": { "en": "The jury were not required to give reasons for their verdict, and in our view one should not second-guess why they returned a guilty verdict against the applicant. It is true that, as suggested by Mr. Cheung, the jury might have indeed considered the point mentioned by him, but it is not for the court to second-guess whether that was the basis on which the jury found the applicant guilty in the end. In our view, although the jury used the word “know”, as Barnes J had not given a direction on “genuine belief”, the jury, in raising the question about the applicant’s “knowledge” of the lack of consent to anal sex, were still not apprised of the legal concept of a genuine belief in consent. Furthermore, the facts of the present case were unusual in that the victim had consented to sado-masochistic activities such as bondage. Accordingly, even the victim had put up resistance in the course of the anal sex, we cannot be sure that the jury would still have concluded that the applicant had “knowledge” of the lack of consent to anal sex had they been directed on “genuine belief”. For these reasons, we will not hold that the present case did not involve the issue of ”genuine belief” because of the question raised by the jury and the supplemental direction given by Barnes J.", "zh-HK": "本庭認為由於陪審團在作出裁決時不需要提供理由，故此不應該揣測他們是根據甚麼理據去裁定被告人罪名成立。無疑，正如張大律師所說，陪審團有可能考慮到他所提出的這一點理據，但法庭是不可以揣測他們最終是否根據這個理由裁定申請人罪名成立。本庭認為雖然陪審團採用「知道」兩個字，但由於張法官沒有作出「真實相信」這個指引，故此在陪審團提出申請人「知道」女事主不同意進行肛交這個問題時，他們仍然是不知道申請人是有可能真實相信女事主是同意進行肛交的法律概念。另外，根據本案的特殊案情，即女事主同意進行涉及被捆綁的性虐待行為，故此就算女事主在肛交的過程中曾作出反抗，本庭亦不能肯定若果陪審團有了「真實相信」的指引，他們仍然會裁定申請人是「知道」女事主不同意進行肛交的。因此，本庭不會因陪審團提出這個問題及張法官所作出的補充指引而裁定案件不存有申請人「真實相信」的議題。" } }, { "doc_id": 66, "seg_id": 51, "translation": { "en": "In our judgment, the jury’s verdict is unsafe for the reason that they had not been thoroughly apprised of the principles governing the mens rea of the offence. As Mr. Cheung took the view that it was unnecessary for Barnes J to give the relevant direction, he did not rely on the “proviso” to uphold the verdict. Under these circumstances, we do not have to consider whether the “proviso” can be applied. We will only say that, even if this question were to arise, we would not apply the “proviso”. As this Court pointed out in Wong Shing-chung:", "zh-HK": "本庭裁定由於陪審團未能全面了解控罪的犯罪意念的原則，故此他們的裁決是不穩妥的。由於張大律師認為張法官是不需要作出有關的指引，所以他是不需要引用「但書」來維持判決的。在這情況下，本庭不需要考慮法庭是否可以引用「但書」這個議題。就算這是一項實質的爭議點，本庭亦不會引用「但書」。正如本庭在黃盛中一案指出：" } }, { "doc_id": 66, "seg_id": 52, "translation": { "en": "In our view, the prosecution had to prove each and every element of the offence being charged, and one of the elements was that the defendant knew the victim did not consent to sexual intercourse or that he did not believe she consented to sexual intercourse. The judge’s misdirection might have led the jury to think that the prosecution had discharged the burden of proving all the elements, whereas the facts of the case against the applicant did not point overwhelmingly to the conclusion that he indeed had sexual intercourse with the victim when he did not believe she consented to it. Therefore, in our view the present case is not one in which the appeal can be dismissed by applying the ‘proviso’.", "zh-HK": "「本庭認為控方須証明控罪中每一因素，被告知道受害人不同意性交或不相信她同意性交是因素之一。法官之錯誤引導可能令陪審團認為所有因素已由控方舉証完全証實，而本案中對申請人不利之案情並不是壓倒性的指向申請人確實在他不相信受害人同意下與她發生性行為。因此，本庭不以為這是可行使「但書」駁回上訴之案件。」" } }, { "doc_id": 66, "seg_id": 53, "translation": { "en": "Others", "zh-HK": "其他" } }, { "doc_id": 66, "seg_id": 54, "translation": { "en": "The second ground of appeal advanced by Mr. Wong was that, in her directions to jury, Barnes J had used a number of rhetorical questions, for the purpose of deliberately and obliquely inject her own viewpoints and opinions. Her approach, it was submitted, had affected the jury’s ability to think independently and had rendered the directions unfair.", "zh-HK": "黃大律師的第二項上訴理由是張法官在引導陪審團時使用了大量的反問句，其作用是明知故問及間接地加入她個人的觀點和意見，她的做法妨礙了陪審團的獨立思考空間，令指引欠缺公平。" } }, { "doc_id": 66, "seg_id": 55, "translation": { "en": "As we have accepted the ground of appeal regarding “genuine belief”, it is not necessary for us to deal with the second ground of appeal.", "zh-HK": "由於本庭認同黃大律師有關「真實相信」指引的上訴理由，故此本庭不需要處理第二項上訴理由。" } }, { "doc_id": 66, "seg_id": 56, "translation": { "en": "Mr. Patrick Cheung, Senior Assistant Director of Public Prosecutions and Ms. Winnie Lam, Senior Government Counsel (Acting), for the Respondent", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員張維新及署理高級政府律師林德穎代表。" } }, { "doc_id": 66, "seg_id": 57, "translation": { "en": "Mr. Peter Wong, instructed by K. M. Lai & Li, for the Applicant", "zh-HK": "申請人：由黎錦文李孟華律師行轉聘黃廷光大律師代表。" } }, { "doc_id": 67, "seg_id": 1, "translation": { "en": "Hon Yeung JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭副庭長楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 67, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 67, "seg_id": 3, "translation": { "en": "The applicant (Lee Oi Lin, Irene also known as Lee Sze Yiu) was charged with stealing 220 pieces of jewellery belonging to Profit Gem Jewellery (Group) Limited (“Profit Gem”), the total value of which exceeded $2 million. The applicant pleaded not guilty and was tried before Deputy District Judge Anthony Yuen.", "zh-HK": "申請人（李愛蓮又名李思瑤）被控盜竊屬於利鑽珠寶（集團）有限公司（“利鑽”）的220件珠寶飾物，價值超過200萬元。申請人否認控罪並在區域法院暫委法官阮偉明席前受審。" } }, { "doc_id": 67, "seg_id": 4, "translation": { "en": "On 8 April 2011, Deputy Judge Yuen convicted the applicant on the charge and sentenced her to imprisonment for 2 years and 8 months. The applicant, who was represented by Mr Edward Chan of counsel, sought leave to appeal the conviction and/or sentence. After hearing, we dismissed all the applications for reasons which we now give.", "zh-HK": "2011年4月8日，阮法官裁定申請人罪名成立，並判她入獄2年8個月。申請人不服定罪及判刑，由陳德昌大律師代表提出申請，要求獲准就定罪及/或判刑上訴。經聆訊後，本庭駁回全部申請，以下是本庭的裁決理由。" } }, { "doc_id": 67, "seg_id": 5, "translation": { "en": "Prosecution case", "zh-HK": "控方案情及證據" } }, { "doc_id": 67, "seg_id": 6, "translation": { "en": "Profit Gem was a jewellery wholesaler which contracted out some processes of work to jewellery workshops on the Mainland. One of the subcontractor workshops at the material time was Lung Ngai (transliteration) Professional Jewelry Manufacture Limited (“Lung Ngai”) in the control of the applicant and her boyfriend (Lung Kit Shing). Profit Gem and Lung Ngai had had business dealings since 2005. Profit Gem had on a number of occasions through the applicant entrusted Lung Ngai with the processing work of jewellery.", "zh-HK": "“利鑽”是珠寶首飾批發商，會將部分工序分判給國內的首飾工場處理。案發時申請人和其男朋友（龍傑成）控制的龍藝珠寶專業製作有限公司（“龍藝”）是“利鑽”的分判工場之一。自2005年開始，“利鑽”和“龍藝”有業務往來。“利鑽”多次透過申請人委託“龍藝”進行首飾加工。" } }, { "doc_id": 67, "seg_id": 7, "translation": { "en": "After receiving orders from customers, Profit Gem would prepare the materials and design specifications for the jewellery in accordance with the customers’ instructions and pass them to Lung Ngai as manufacturing orders.", "zh-HK": "“利鑽”收到客人的訂貨單後，會按客人的指示，準備鑽飾材料及設計規格交給“龍藝”，作為製作訂單。" } }, { "doc_id": 67, "seg_id": 8, "translation": { "en": "The applicant or her representative would personally collect the raw materials from Profit Gem and sign an acknowledgment of receipt, and the materials and design specifications would be delivered to Lung Ngai’s in-house workshop on the Mainland for manufacturing. Upon completion of work, a representative of Profit Gem would visit Lung Ngai’s workshop on the Mainland to inspect the products.", "zh-HK": "申請人或其委派的代表會親自從“利鑽”取得原材料並簽收確實，而材料及設計規格會送交“龍藝”國內的附屬工場進行製作工序。完工後，“利鑽”的代表會前往“龍藝”國內工場驗貨。" } }, { "doc_id": 67, "seg_id": 9, "translation": { "en": "If the products met the requirements of the specifications, Lung Ngai would issue an invoice to Profit Gem in respect of labour cost, and the applicant or Lung Kit Shing would personally deliver the finished products to Profit Gem and collect payment.", "zh-HK": "如製成品符合規格，“龍藝”會向“利鑽”發出工費單，而申請人或龍傑成會親身將製成品送交“利鑽”及收取費用。" } }, { "doc_id": 67, "seg_id": 10, "translation": { "en": "In early 2010, one Madam Wong, a director of Profit Gem liaised with the applicant and passed to the applicant or her representative some materials to the value of approximately $750,000 for Lung Ngai to process. The applicant undertook to deliver 220 pieces of finished product (the total value of which exceeded $2 million) to Profit Gem in May 2010.", "zh-HK": "2010年初，“利鑽”董事黃女士和申請人聯繫並將價值約75萬元的材料交了給申請人或其代表由“龍藝”加工，而申請人承諾會將220件製成品（價值超過200萬元）在2010年5月交回給“利鑽”。" } }, { "doc_id": 67, "seg_id": 11, "translation": { "en": "On 25 May 2010, the applicant notified the staff of Profit Gem and confirmed that 220 pieces of finished product would be delivered to Profit Gem on the same day. However, the applicant did not deliver the finished products to Profit Gem as agreed, and Profit Gem lost contact with the applicant and Lung Kit Shing.", "zh-HK": "2010年5月25日，申請人知會“利鑽”的職員，確認會在同日將220件製成品送交“利鑽”。但申請人沒有依約將製成品送交“利鑽”，而“利鑽”亦和申請人及龍傑成失去聯絡。" } }, { "doc_id": 67, "seg_id": 12, "translation": { "en": "The police found upon investigation that the applicant had pawned 21 of the 220 pieces of finished product and thereby obtained $40,000. The staff of Profit Gem confirmed that all the 21 pieces of jewellery pawned by the applicant belonged to Profit Gem because they all bore the markings designated by its customer(s).", "zh-HK": "警方調查後發現申請人將220件製成品中的21件首飾典當，獲得4萬元。“利鑽”員工確認申請人典當的21件首飾全屬“利鑽”，原因是首飾上都有其顧客指定的印記。" } }, { "doc_id": 67, "seg_id": 13, "translation": { "en": "In her testimony, Madam Wong detailed her transaction with the applicant. She said that she had had dealings with the applicant for over ten years and had entrusted her with the task of processing jewellery since 2005. Madam Wong emphasized that the applicant had always been punctual in delivering finished products but had failed to keep her promise on 25 May 2010 by not only failing to deliver the 220 pieces of finished product in question on that day as agreed but also getting disappeared.", "zh-HK": "作供時，黃女士詳述她和申請人的交易經過。她指和申請人有10多年的交往，而自2005年已開始委託申請人為首飾加工。黃女士強調申請人一向準時交貨，但在2010年5月25日卻沒有信守諾言，不但沒有依約在當天將涉案的220件製成品送交給“利鑽”，更失去踪影。" } }, { "doc_id": 67, "seg_id": 14, "translation": { "en": "Madam Wong stressed that the incident had not only caused monetary loss to Profit Gem, but also ruined the reputation of her company.", "zh-HK": "黃女士力稱事件不但令“利鑽”損失金錢，更影響其公司的聲譽。" } }, { "doc_id": 67, "seg_id": 15, "translation": { "en": "A staff member of Profit Gem confirmed that orders had been placed with Lung Ngai in March and April 2010, involving a total of 220 pieces of jewellery and with the date of completion set for April or May 2010. According to that staff member, although that batch of jewellery had passed the inspection and the applicant had already issued an invoice for labour cost, no delivery was made despite the lapse of time and the applicant was even nowhere to be found on the day of delivery.", "zh-HK": "“利鑽”的職員確認在2010年3、4月期間曾向“龍藝”發出訂單，共涉及220件首飾，而完工日期是在2010年4、5月。該職員表示雖然該批首飾已檢驗合格，申請人亦發出工費單，但卻遲遲不交貨，而更在交貨當天失去踪影。" } }, { "doc_id": 67, "seg_id": 16, "translation": { "en": "A staff member of a pawnshop confirmed that on 2 June 2010 the applicant pawned a total of 21 pieces of jewellery in two bags, for which the shop gave her $40,000. All those jewellery items were confirmed to belong to Profit Gem and the remaining 199 pieces of jewellery had all gone missing.", "zh-HK": "有當舖職員證實申請人曾在2010年6月2日典當了兩包共21件首飾，並取得4萬元。該批首飾獲證實全屬“利鑽”，而其餘的199件首飾則全部下落不明。" } }, { "doc_id": 67, "seg_id": 17, "translation": { "en": "Defence", "zh-HK": "答辯理由" } }, { "doc_id": 67, "seg_id": 18, "translation": { "en": "The applicant did not give evidence or call any witness, nor did she contest the prosecution case. She only contended that the prosecution had failed to prove she had actually stolen all 220 pieces of jewellery in question.", "zh-HK": "申請人沒有作供自辯，也沒有傳召任何證人，更沒有對控方的案情提出爭辯。她的立場只是控方未能證明她確有盜竊涉案的全部220件珠寶飾物。" } }, { "doc_id": 67, "seg_id": 19, "translation": { "en": "Trial judge’s ruling", "zh-HK": "原審法官的裁定" } }, { "doc_id": 67, "seg_id": 20, "translation": { "en": "The trial judge accepted the evidence given by the prosecution witnesses. In fact the defence had not sought to challenge the credibility and reliability of the prosecution witnesses.", "zh-HK": "原審法官接納控方證人的證供，事實上辯方對控方證人的可信性和可靠性並沒有提出異議。" } }, { "doc_id": 67, "seg_id": 21, "translation": { "en": "The trial judge did not accept the defence’s contention that since not all the materials of the jewellery in question had been provided by Profit Gem, the finished products did not belong to Profit Gem.", "zh-HK": "原審法官不接納辯方的立場，指“利鑽”沒有提供涉案首飾的全部物料，故製成品不屬於“利鑽”的說法。" } }, { "doc_id": 67, "seg_id": 22, "translation": { "en": "He pointed out that Profit Gem had provided the major part of the materials required for the jewellery in question and that, compared with the value of the jewellery as a whole, the value of the remaining components and the labour cost were insignificant.", "zh-HK": "原審法官指出“利鑽”提供了有關首飾所需物料的主要部分，而其餘組件的價值及工費和整件首飾的價值相比屬微不足道。" } }, { "doc_id": 67, "seg_id": 23, "translation": { "en": "He found that even though Profit Gem was not the provider of all materials for the jewellery, the jewellery still belonged to Profit Gem.", "zh-HK": "原審法官認為即使“利鑽”並非是首飾全部物料的供應者，該批首飾仍屬“利鑽”。" } }, { "doc_id": 67, "seg_id": 24, "translation": { "en": "He pointed out that the applicant had on 25 May 2010 clearly indicated to the staff of Profit Gem that all 220 pieces of jewellery were being delivered to Profit Gem, but she not only reneged on her promise but went on to pawn 21 of the pieces, with the remaining 199 pieces disappearing into thin air. He found that, in the absence of any credible explanation, the only reasonable inference that could be drawn was that the applicant had in fact stolen all 220 pieces of jewellery in question.", "zh-HK": "原審法官指出申請人曾在2010年5月25日向“利鑽”職員表明正在將全數220件珠寶首飾運送給“利鑽”途中，但申請人不但食言，更將其中21件拿去典當，而其餘199件則不翼而飛。原審法官認為在沒有任何合信的解釋下，唯一的合理推論是申請人確有盜取了涉案的全部220件首飾。" } }, { "doc_id": 67, "seg_id": 25, "translation": { "en": "Grounds of appeal against conviction", "zh-HK": "針對定罪的上訴理由" } }, { "doc_id": 67, "seg_id": 26, "translation": { "en": "In his written submission, Mr Chan for the applicant advanced two grounds of appeal. He said that the trial judge should not have found that the jewellery in question was the property of Profit Gem, and what was more, he should not have inferred, by reason of the applicant not having given evidence, that she had “appropriated” the 199 missing pieces of jewellery.", "zh-HK": "在其書面陳述，代表申請人的陳德昌大律師提出兩點上訴理由。他指原審法官不應裁定涉案的首飾都是“利鑽”的財物，更不應因為申請人沒有作供而推論她有“挪用”了下落不明的199件首飾。" } }, { "doc_id": 67, "seg_id": 27, "translation": { "en": "Mr Chan said that according to the trial judge’s decision, the best part of the value of the 220 pieces of jewellery belonged to Profit Gem, but there was still a small part of the value which was attributable to the labour cost owed to the applicant or which belonged to entities other than Profit Gem.", "zh-HK": "陳大律師指出根據原審法官的裁決，220件首飾的價值雖然大部分屬於“利鑽”，但有小部分價值是申請人的工費或屬於“利鑽”以外的其他團體。" } }, { "doc_id": 67, "seg_id": 28, "translation": { "en": "He emphasized that a very small quantity of crystal stones used on the jewellery in fact came from Lung Ngai instead of Profit Gem, because some of the crystal stones had cracked and Lung Ngai had to replace them with crystal stones of the same type.", "zh-HK": "陳大律師強調有極少部分用於首飾的晶石並非源自“利鑽”，而是“龍藝”，原因是有部分晶石爆裂而“龍藝”要以相同的晶石替補。" } }, { "doc_id": 67, "seg_id": 29, "translation": { "en": "Mr Chan suggested that the relationship between Profit Gem and Lung Ngai was one of bailment for hire of work and labour, the reason being that Profit Gem gave goods to Lung Ngai which then processed those goods in exchange for remuneration.", "zh-HK": "陳大律師認為“利鑽”和“龍藝”的關係是“來料加工的委託保管”（bailment for hire of work and labour），原因是“利鑽”將貨物交給“龍藝”由“龍藝”將貨物進行加工以換取報酬。" } }, { "doc_id": 67, "seg_id": 30, "translation": { "en": "Mr Chan submitted that the trial judge incorrectly understood the relationship between Profit Gem and Lung Ngai. Mr Chan also argued that the applicant or Lung Ngai had liens in the jewellery in question because Profit Gem had not yet settled the relevant labour cost, and hence that batch of jewellery did not belong to Profit Gem.", "zh-HK": "陳大律師指原審法官對“利鑽”和“龍藝”的關係理解錯誤。陳大律師更指申請人或“龍藝”對涉案的首飾有留置權（liens），原因是“利鑽”尚未繳付有關工費。因此該批首飾不屬於“利鑽”。" } }, { "doc_id": 67, "seg_id": 31, "translation": { "en": "Mr Chan said that with the exception of the 21 pieces of jewellery which the applicant had pawned, the whereabouts of the remaining 199 pieces was unknown. He suggested that those 199 pieces might have been taken away by others or might still be in the possession of the applicant who exercised the liens. Hence, the prosecution had (Mr. Chan said) failed to prove that the applicant had “appropriated” those 199 pieces of jewellery.", "zh-HK": "陳大律師指出除了申請人典當了的21件首飾外，其餘199件則下落不明。陳大律師認為可能是其他人取去該199件首飾，亦可能是申請人行使留置權，繼續管有該199件首飾，故控方未能證明申請人確有“挪用”該199件首飾。" } }, { "doc_id": 67, "seg_id": 32, "translation": { "en": "Mr Chan further submitted that the trial judge drew an inference adverse to the applicant on the ground that she had not explained the whereabouts of those 199 pieces of jewellery, and that the judge’s approach showed he had wrongly shifted the burden of proof to the applicant.", "zh-HK": "陳大律師更指原審法官因申請人沒有就該199件首飾的去向作出解釋，而對申請人作出不利推論。陳大律師認為原審法官的處理手法顯示他錯誤地將舉證責任移至申請人的身上。" } }, { "doc_id": 67, "seg_id": 33, "translation": { "en": "In his oral submission, Mr Chan made it clear that no issue would be taken with the allegation that the applicant had stolen the 21 pieces of jewellery that she had pawned. He submitted that the applicant had stolen only 21 pieces of jewellery, not 220 pieces as alleged by the prosecution.", "zh-HK": "向法庭作出口頭陳述時，陳大律師表明不會就申請人有盜竊了她典當的21件首飾一事提出異議。他認為申請人只是盜竊了21件首飾而非控方所指的220件首飾。" } }, { "doc_id": 67, "seg_id": 34, "translation": { "en": "He asserted that the prosecution evidence did not support an only or irresistible inference that the applicant had actually stolen the remaining 199 pieces of jewellery in question.", "zh-HK": "陳大律師力稱控方證據不足以導致唯一或不能抗拒的推論，證明申請人確有盜取涉案的其餘199件首飾。" } }, { "doc_id": 67, "seg_id": 35, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 67, "seg_id": 36, "translation": { "en": "There is insufficient legal basis for what Mr Chan said regarding who had the right of possession of the 220 pieces of jewellery in question at the material time.", "zh-HK": "陳大律師就涉案220件首飾在關鍵時間管有權誰屬的陳述是無足夠法律基礎支持的。" } }, { "doc_id": 67, "seg_id": 37, "translation": { "en": "The Theft Ordinance contains detailed provisions on the meaning of “belonging to another”, an essential element of the offence of theft. Section 6 of the Ordinance defines “belonging to another” as follows:", "zh-HK": "《盜竊罪條例》就“盜竊”罪行要素之一“屬於另一人”有詳細的闡釋。根據該條例第6條，“屬於另一人”的釋義如下：" } }, { "doc_id": 67, "seg_id": 38, "translation": { "en": "“(1)Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).", "zh-HK": "“(1)財產須視為屬於任何管有或控制該財產，或對該財產有任何所有權的權利或權益的人(權益不包括僅由轉讓權益協議或授予權益協議而產生的衡平法權益)。" } }, { "doc_id": 67, "seg_id": 39, "translation": { "en": "(2)Where property is subject to a trust, the person to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right.", "zh-HK": "(2)凡財產受到信託的規限，則該財產所屬的人，須視為包括任何有權利強制執行該信託的人，而意圖破壞該信託，則須據此視為意圖剝奪任何擁有該權利的人的財產。" } }, { "doc_id": 67, "seg_id": 40, "translation": { "en": "(3)Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or its proceeds shall be regarded (as against him) as belonging to the other.", "zh-HK": "(3)凡任何人從另一人接收到財產，或為另一人而接收到財產，並對該另一人有義務以特定的方式保有及處理該財產或其收益，則該財產或其收益相對他而言須視為屬於該另一人。" } }, { "doc_id": 67, "seg_id": 41, "translation": { "en": "(4)Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or its proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.”", "zh-HK": "(4)凡任何人因他人的錯誤而獲得財產，並有義務歸還全部或部分該財產或其收益或價值，則在該義務的限度之內，該財產或其收益相對他而言須視為屬於該名有權獲歸還財產或收益的人；而意圖不歸還則須據此視為意圖剝奪該人的財產或收益。”" } }, { "doc_id": 67, "seg_id": 42, "translation": { "en": "The offence of theft is generally committed against the owner of the property, no matter whether or not the owner is in possession of the property at the material time (R v Hancock [1990] 2 QB 242). However, the offence may also be committed against someone whose interests in the property are less than those of the owner.", "zh-HK": "“盜竊”罪行一般是針對財產的物主，不論物主在有關時段是否管有該些財產（R v Hancock [1990] 2 QB 242）。但“盜竊”罪行亦可以是針對財物權益較物主的權益為少的人。" } }, { "doc_id": 67, "seg_id": 43, "translation": { "en": "It is even possible to commit the offence against another thief, for the reason that the objective of the Theft Ordinance is to keep the peace of society, not to protect private property rights.", "zh-HK": "一名賊人甚至可以從另一名同樣是賊人的人盜取財物，原因是盜竊法例目的是維持社會治安，而非為了保障私人財產權益。" } }, { "doc_id": 67, "seg_id": 44, "translation": { "en": "The case of R v Smith [2011] 1 Cr App R 379 involved a defendant who, using violence, took away dangerous drugs from the victim. The defence submission that dishonestly taking away items in illegal possession of another did not constitute theft was not accepted. The English Court of Appeal held that prohibited items were also “property belonging to another” within the meaning of the UK provision which corresponded to the Theft Ordinance.", "zh-HK": "R v Smith [2011] 1 Cr App R 379案涉及被告人以暴力取去受害人的毒品。被告人指不誠實取去別人一些非法管有的物品不會構成盜竊的陳詞不獲接納。英國上訴法庭裁定違禁物品仍屬《盜竊罪條例》所指“屬於另一人”的“財產”。" } }, { "doc_id": 67, "seg_id": 45, "translation": { "en": "Lord Bridge CJ specified in page 382 of the judgment:", "zh-HK": "Lord Bridge CJ在判案書第382頁指明：" } }, { "doc_id": 67, "seg_id": 46, "translation": { "en": "“The Criminal Law is concerned with keeping the Queen’s Peace, not vindicating individual property rights.”", "zh-HK": "“刑法和維持社會秩序有關，而非為了澄清個人財產權益。”（非官方翻譯）" } }, { "doc_id": 67, "seg_id": 47, "translation": { "en": "The issue in the present case was not whether the civil law principle of “bailment” or other civil law principles had been established, but whether the prosecution had proved each and every element of the charge of theft brought against the applicant (see paragraphs 53-54 of the judgment in HKSAR v Tsang Wai Hung & Others CACC 328/2004).", "zh-HK": "本案要處理的議題並非民法的“委託保管”原則或其他民法原則是否成立，而是控方是否能夠證明針對申請人盜竊罪的各項元素（見HKSAR v Tsang Wai Hung & Others CACC328/2004案判案書第53-54段）。" } }, { "doc_id": 67, "seg_id": 48, "translation": { "en": "In any event, even if the civil law principle of “bailment” was applicable, the applicant still would not be entitled to appropriate the 220 pieces of jewellery.", "zh-HK": "無論如何，即使引用民法的“委託保管”原則，申請人亦無權把220件首飾據為己有。" } }, { "doc_id": 67, "seg_id": 49, "translation": { "en": "The undisputed facts showed that the applicant was under a duty to deliver all 220 pieces of jewellery back to Profit Gem. She was contractually obliged to return all the jewellery upon completion of the processing work. On a correct interpretation of the Theft Ordinance, the 220 pieces of jewellery should all be regarded as “belonging to Profit Gem”.", "zh-HK": "無爭議的案情顯示申請人有責任要將全部220件飾物交回給“利鑽”。申請人的合約責任是在加工完成後將全部飾物交回，故根據《盜竊罪條例》的釋義，該批全部220件飾物須視為“屬於‘利鑽’”。" } }, { "doc_id": 67, "seg_id": 50, "translation": { "en": "There was nothing to support Mr Chan’s suggestion that the applicant had exercised a “lien”. It was not the defence case, nor was there any evidence to show, that Profit Gem had refused to pay or was owing Lung Ngai any processing cost.", "zh-HK": "陳大律師指申請人行使“留置權”的說法沒有任何基礎作出。辯方沒有指控，更沒有證據顯示“利鑽”有拒絕向“龍藝”支付或欠“龍藝”任何加工費。" } }, { "doc_id": 67, "seg_id": 51, "translation": { "en": "The applicant should have returned all 220 pieces of jewellery to Profit Gem upon completion of the processing work, and in fact she had on 25 May 2010 promised to do so. However, she failed to keep her promise and even pawned 21 of the 220 pieces of jewellery, thereby obtaining $40,000.", "zh-HK": "申請人理應在加工完畢後將全部220件首飾交回給“利鑽”，而她亦曾在2010年5月25日承諾過會這樣做，但她沒有履行諾言，更將220件首飾中的21件拿去典當，取得4萬元。" } }, { "doc_id": 67, "seg_id": 52, "translation": { "en": "The applicant should have, but had never, returned the remaining 199 pieces of jewellery which, as it turned out, had simply gone missing.", "zh-HK": "申請人亦沒有交還她應交還的其餘199件首飾，而該批首飾更是不翼而飛。" } }, { "doc_id": 67, "seg_id": 53, "translation": { "en": "The trial judge pointed out that, the applicant not having put forward any reasonable explanation as to why those 199 pieces of jewellery had disappeared, the only reasonable inference was that the applicant had in fact stolen those jewellery items. The trial judge did not shift any burden of proof to the applicant.", "zh-HK": "原審法官指出申請人沒有就該199件首飾不翼而飛作出任何合理的解釋，而唯一合理的推論是申請人確有盜竊該批首飾。原審法官並沒有將任何舉證責任轉嫁到申請人身上。" } }, { "doc_id": 67, "seg_id": 54, "translation": { "en": "Applying the principle laid down in the case of HKSAR v Li Defan (2002) 5 HKCFAR 320, the prosecution case was obviously strengthened by the fact that the applicant did not testify or call any witness to explain why she had pawned 21 pieces of jewellery and to clarify the whereabouts of the remaining 199 pieces.", "zh-HK": "根據HKSAR v Li Defan (2002) 5 HKCFAR 320案定下的原則，申請人不作供或傳召證人，以解釋她典當了21件首飾及另外199件首飾的去向一事明顯加強了控方的舉證力量。" } }, { "doc_id": 67, "seg_id": 55, "translation": { "en": "The applicant had all along represented Lung Ngai in dealing with Profit Gem and had on a number of occasions been entrusted with doing processing work for Profit Gem. Following liaison with the applicant, Madam Wong delivered the raw materials for the jewellery in question to Lung Ngai for processing, and the applicant did expressly indicate that 220 pieces of finished product would be returned to Profit Gem on 25 May 2010. However, instead of doing so, the applicant pawned 21 pieces of them and gave no account of the remaining 199 pieces. Regardless of whether the principle laid down in Li Defan was applicable, on the evidence put forward by the prosecution, which had not been rebutted by the applicant, the trial judge felt able to draw the inference that the applicant was guilty. The basis of the conviction was the applicant had stolen not only the 21 pieces of jewellery but also the remaining 199 pieces. In our view, the trial judge had taken a correct and sensible approach.", "zh-HK": "申請人一直代表“龍藝”和“利鑽”交易，並多次獲委託替“利鑽”加工。涉案首飾的原材料是黃女士和申請人聯繫後交了給“龍藝”加工，而申請人有明確表示會將220件製成品在2010年5月25日交回給“利鑽”。但她沒有這樣做，更將其中的21件拿去典當，亦沒有就其餘的199件作出交待。不論上述Li Defan案定下的原則是否適用，在本案控方提出而申請人沒有反駁的證據足以導致原審法官推論申請人有罪的決定，而定罪的基礎不但是申請人有盜取了21件首飾，更盜取了其餘的199件首飾。本庭認為原審法官的處理方法正確、合理。" } }, { "doc_id": 67, "seg_id": 56, "translation": { "en": "The conviction of the applicant for theft of all 220 pieces of jewellery was in our judgment neither unsafe nor unsatisfactory. The applicant’s application for leave to appeal against conviction was dismissed accordingly.", "zh-HK": "對申請人被裁定盜竊了全部220件首飾罪的罪名成立，本庭不覺有任何不穩妥之處。因此，本庭駁回申請人就定罪的上訴許可申請。" } }, { "doc_id": 67, "seg_id": 57, "translation": { "en": "Sentence", "zh-HK": "判刑" } }, { "doc_id": 67, "seg_id": 58, "translation": { "en": "The trial judge said that the present case involved breach of trust and the value of the property was between $1 million and $2 million.", "zh-HK": "原審法官指出案件涉及違反誠信，而財物價值100萬至200萬元之間。" } }, { "doc_id": 67, "seg_id": 59, "translation": { "en": "He emphasized that the applicant had played an important role in the case and that her culpability could not be reduced on the ground that her boyfriend was the boss behind the scene.", "zh-HK": "原案法官強調申請人在案件中扮演重要角色，不能以其男朋友是幕後老闆為理由以減輕其罪責。" } }, { "doc_id": 67, "seg_id": 60, "translation": { "en": "He placed particular emphasis on the fact that the other 199 pieces of jewellery were still missing and that the applicant had not given any account in that connection.", "zh-HK": "原審法官特別強調，涉案的另外199件首飾仍然下落不明，而申請人亦沒有作出交代。" } }, { "doc_id": 67, "seg_id": 61, "translation": { "en": "He adopted 3 years’ imprisonment as the starting point, and reduced the sentence by 4 months to 2 years and 8 months on account of the applicant’s clear record.", "zh-HK": "原審法官以3年為量刑基準，但因申請人沒有刑事記錄而將刑期扣減4個月至2年8個月。" } }, { "doc_id": 67, "seg_id": 62, "translation": { "en": "Mr Chan contended that a term of 2 years and 8 months was manifestly excessive. He submitted that the value of the raw materials for the jewellery in question was $750,000 or even less, instead of $1 million to $2 million. He emphasized that Profit Gem had not yet paid Lung Ngai the labour cost. He asserted that the present case did not involve any breach of trust because there was no employer/employee relationship between the applicant and Profit Gem and the applicant was not a professional who owed fiduciary duties to Profit Gem.", "zh-HK": "陳大律師指2年8個月的判刑明顯過重，他指涉案首飾的原材料價值是75萬元或更低，而非100萬至200萬元。陳大律師強調“利鑽”仍未支付工費給“龍藝”。陳大律師力稱本案不涉及“違反誠信”，原因是申請人和“利鑽”並沒有僱主/僱員的關係，而申請人亦非對“利鑽”負有“受信責任”的專業人士。" } }, { "doc_id": 67, "seg_id": 63, "translation": { "en": "Mr Chan submitted that in considering sentence, the trial judge had failed to take into account the fact that 21 pieces of jewellery had been recovered and that the applicant had been punctual in delivering finished products to Profit Gem ever since she started doing processing work for Profit Gem in 2005.", "zh-HK": "陳大律師指原審法官判刑時，沒有考慮有21件飾物被起回，亦沒有考慮申請人自2005年開始與“利鑽”加工，每一次都準時交貨。" } }, { "doc_id": 67, "seg_id": 64, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 67, "seg_id": 65, "translation": { "en": "While it was not in dispute that the applicant had all along delivered finished products punctually, this could not possibly be a mitigating factor. Obviously, it was on account of the applicant’s track record that Profit Gem reposed trust in her and entrusted her with the handling of a substantial quantity of valuable jewellery. However, the applicant breached that trust and stole a large quantity of jewellery from Profit Gem. Although the applicant was neither an employer of Profit Gem nor a professional who owed fiduciary duties to Profit Gem, she stole the valuable jewellery from Profit Gem, taking advantage of her business dealings with Profit Gem over the years and the trust that Profit Gem had reposed in her. This constituted an aggravating factor.", "zh-HK": "申請人以往準時交貨是不爭事實，但該點絕非減刑理由。“利鑽”明顯是因為申請人過往的記錄而信任她及委託她處理大量價值不菲的珠寶首飾，但申請人卻違反信任，盜去“利鑽”的大批珠寶首飾。申請人不是“利鑽”的僱主，亦非對“利鑽”負有“受信責任”的專業人士，但她利用和“利鑽”多年業務往來及“利鑽”對她的信任，而盜取“利鑽”價值不菲的珠寶首飾。上述事件構成加重罪責因素。" } }, { "doc_id": 67, "seg_id": 66, "translation": { "en": "The relationship between the applicant and Profit Gem is not necessarily one of those relationships set out in R v Barrick (1985) 81 Cr App R 78 and R v Clark [1998] 2 Cr App R 137 which would give rise to breach of trust. The examples of breach of trust given in those two cases are merely illustrative and not intended to be exhaustive. Breach of trust is a crucial sentencing factor which reflects the seriousness of the offence of stealing, from the very person who trusts the offender, property with which that person has entrusted the offender. From this perspective, the offence committed by the applicant also involved breach of trust.", "zh-HK": "申請人和“利鑽”的關係不一定是R v Barrick (1985) 81 Cr App R 78及R v Clark [1998] 2 Cr App R 137案所列舉會導致“違反誠信”的關係，但該兩宗案件列出的“違反誠信”例子只是樣本而非例子的全部。“違反誠信”是判刑的關鍵因素，是為了反映獲他人信任去處理財物的人監守自盜的罪行的嚴重性。從這角度考慮事件，申請人的罪行亦屬“違反誠信”。" } }, { "doc_id": 67, "seg_id": 67, "translation": { "en": "Furthermore, we did not think that the recovery of 21 pieces of jewellery by the police could serve to alleviate the severity of the case. In respect of those 21 pieces, the victim might be Profit Gem or the pawnshop, but the applicant was the one who had stolen and pawned those items and obtained $40,000 thereby. In any event, whether Profit Gem had lost 220 or 199 pieces of jewellery would not materially affect the sentence imposed on the applicant.", "zh-HK": "本庭更不認為警方起回21件珠寶能減輕事件的嚴重性。該21件珠寶的損失者可能是“利鑽”，亦可能是當舖，但申請人卻是盜取及典當了21件珠寶並取去得來的4萬元的人。無論如何，不論“利鑽”損失的是220件或199件珠寶，對申請人的判刑不具實質影響。" } }, { "doc_id": 67, "seg_id": 68, "translation": { "en": "The value of the 220 pieces of jewellery should not be calculated solely by reference to the price of the raw materials. The Court should be concerned with the value of that batch of jewellery and the economic loss suffered by Profit Gem as a result of the offence committed by the applicant. Apart from raw materials, the value of the jewellery should also reflect such factors as design and profit.", "zh-HK": "計算涉案的220件珠寶的價值時，不應單以該批珠寶的原材料價為基準。法庭應關注的是該批珠寶的價值及申請人的罪行所引至“利鑽”的經濟損失。除了原材料外，該批珠寶的價值理應包括設計、盈利等等因素。" } }, { "doc_id": 67, "seg_id": 69, "translation": { "en": "The prosecution case, which the applicant was unable to rebut on any ground, was that according to Madam Wong’s evidence, the value of the 220 pieces of jewellery in question was $2 million odd. By taking the value of the jewellery in question at $1 million to $2 million as the sentencing basis, the trial judge had adopted an approach which was very generous to the applicant.", "zh-HK": "控方的立場是根據黃女士的證供，涉案的220件珠寶的價值是200多萬元，而申請人亦不能就該立場提出任何反駁理由。原審法官判刑時以該批珠寶的價值是介乎100萬至200萬元之間為基礎已經是對申請人十分有利的做法。" } }, { "doc_id": 67, "seg_id": 70, "translation": { "en": "In our view, having regard to the facts of the case as a whole, the sentence of imprisonment for 2 years and 8 months imposed on the applicant was not manifestly excessive and there was no room for further reduction.", "zh-HK": "本庭認為以整體案情而言，申請人被判的2年8個月監禁，並非明顯過重無再扣減餘地。" } }, { "doc_id": 67, "seg_id": 71, "translation": { "en": "For the above reasons, we have also refused to grant leave to the applicant to appeal her sentence.", "zh-HK": "因此，本庭亦不批准申請人就判刑提出上訴。" } }, { "doc_id": 67, "seg_id": 72, "translation": { "en": "Mr Alain Sham, DDPP of the Department of Justice for the Respondent.", "zh-HK": "答辯人：由律政司副刑事檢控專員沈仲平代表。" } }, { "doc_id": 67, "seg_id": 73, "translation": { "en": "Mr Edward Chan instructed by Messrs KL Leung & Co for the Applicant.", "zh-HK": "申請人：由梁家樂律師行轉聘大律師陳德昌代表。" } }, { "doc_id": 68, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 68, "seg_id": 2, "translation": { "en": "Application for leave to appeal", "zh-HK": "上訴許可申請" } }, { "doc_id": 68, "seg_id": 3, "translation": { "en": "The 1st applicant in the present case has made the following applications:", "zh-HK": "本案的第一申請人作出以下的申請：" } }, { "doc_id": 68, "seg_id": 4, "translation": { "en": "Application for leave to appeal out of time against conviction in respect of Charge 1;", "zh-HK": "就第一項控罪的定罪提出逾期上訴許可申請；" } }, { "doc_id": 68, "seg_id": 5, "translation": { "en": "Application for leave to appeal against conviction in respect of Charge 2; and", "zh-HK": "就第二項控罪的定罪提出上訴許可申請；及" } }, { "doc_id": 68, "seg_id": 6, "translation": { "en": "Application for leave to appeal out of time against sentence in respect of both charges.", "zh-HK": "就兩項控罪的刑罪提出逾期上訴許可的申請。" } }, { "doc_id": 68, "seg_id": 7, "translation": { "en": "The 2nd applicant in this case has applied for leave to appeal against the sentence of 3 years and 10 months’ imprisonment in respect of Charge 2.", "zh-HK": "本案的第二申請人就第二項控罪的三年十個月監禁的刑期提出上訴許可申請。" } }, { "doc_id": 68, "seg_id": 8, "translation": { "en": "Following the hearing on 20 April 2007, we dismissed all the applications of the 1st applicant. We allowed the 2nd applicant’s application and, treating the hearing of the application as the appeal, varied the sentence of 3 years and 10 months’ imprisonment to one of 3 years and 6 months’ imprisonment. Our reasons are as follows.", "zh-HK": "本庭經聆訊後在 2007 年 4 月 20 日拒絕第一申請人全部申請。本庭批准第二申請人提出的申請，視申請為正式上訴及將三年十個月監禁的刑期更改為三年六個月監禁。以下是本庭判案理由。" } }, { "doc_id": 68, "seg_id": 9, "translation": { "en": "Charges", "zh-HK": "控罪" } }, { "doc_id": 68, "seg_id": 10, "translation": { "en": "The 1st applicant was charged with two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong. Charge 1 alleged that the 1st applicant trafficked in 1.06 grammes of heroin hydrochloride; and Charge 2 alleged that the 1st and 2nd applicants trafficked in 9.13 grammes of heroin hydrochloride. The 2nd applicant was also charged with one count of trafficking in a dangerous drug (i.e. Charge 2).", "zh-HK": "本案的第一申請人被控的兩項控罪都是販運危險藥物罪名，違反香港法例第 134 章 《危險藥物條例》 第 4(1)(a) 及 (3) 條。第一項控罪是販運 1.06 克海洛英鹽酸鹽。第二項控罪是指第一及第二申請人販運 9.13克海洛英鹽酸鹽。第二申請人亦被控一項販運危險藥物罪（即第二項控罪）。" } }, { "doc_id": 68, "seg_id": 11, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 68, "seg_id": 12, "translation": { "en": "The facts show that on 13 October 2005 a team of police officers stopped the 1st applicant outside the entrance on the ground floor of No. 73 Lion Rock Road, Kowloon City (“the building”). At that time she had just emerged from the building. The police took her to the mezzanine floor of the building for investigation. She told the police that she and her uncle of the same clan, Lau Ngo Ming (the 2nd applicant), lived on the 2nd floor of the building. The police found from her handbag 13 packets of dangerous drug, which were subsequently verified to be 1.06 grammes of heroin hydrochloride (the subject of Charge 1). Under caution, the 1st applicant admitted to possessing the 13 packets and claimed that the dangerous drug was for her own consumption. Thereafter, the police further found from her handbag three keys, which were respectively to the main entrance of the building, the entrance of the flat on the 2nd floor and the door of Room D (“the room”) in the flat.", "zh-HK": "案情顯示一隊警員於2005 年 10 月 13 日在九龍城獅子石道 73 號(‘該大廈’)地下門外截查第一申請人，當時她剛從大廈走出來。警員把她帶到該大廈內的閣樓進行調查。第一申請人對警員說她和同鄉叔父柳岳明（即本案的第二申請人）居住在該大廈的 2 字樓。警員在第一申請人的手袋內搜出 13 包毒品，後證實為 1.06 克海洛英鹽酸鹽（即涉及第一項控罪的毒品）。第一申請人被警誡後承認該 13 包毒品是她管有的，並稱該批毒品是供她自己吸食的。之後，警員在第一申請人的手袋內再搜出三條鎖匙，他們分別可以開啟該大廈的大門，2 字樓單位的大門及該單位內 D室（‘該房間’）的房門。" } }, { "doc_id": 68, "seg_id": 13, "translation": { "en": "The police took the 1st applicant to the 2nd floor and opened the main door of the flat on that floor with the key seized. The flat consisted of a number of rooms. The 1st applicant indicated to the police that she lived in one of the rooms. The police then opened the door of the room with another seized key and found the 2nd applicant inside. The 1st applicant told the police that the 2nd applicant was her uncle, Lau Ngo Ming. The police searched the room and found 60 packets of dangerous drug, comprising 22 white packets, 22 red packets and 16 packets in white plastic wrapping. This batch of dangerous drug was later verified to be 9.13 grammes of heroin hydrochloride (the subject of Charge 2). Under caution, the 2nd applicant said, “Ah Sir, the powders in the room were mine. Give me a chance, please.” Apart from the dangerous drug, the police also found from the room an electronic scale, two bundles of plastic sheets, red and white in colour respectively, and a tenancy agreement. The 2nd applicant was a tenant of the room.", "zh-HK": "警員將第一申請人帶到 2 字樓，並用搜獲的鎖匙開啟了2 字樓單位的大門，該單位內有多間房間。第一申請人向警員表示其中一間房間是她居住的。之後，警員再利用另一條搜獲的鎖匙打開了該房間的門，當時第二申請人在房間內，第一申請人向警員表示第二申請人是她的叔父柳岳明。警員在該房間內搜出 60 包毒品： 22 包是白色包裝、22 包是紅色包裝及 16 包是以白色膠紙包裝的。這批毒品後被證實為 9.13 克海洛英鹽酸鹽（即第二項控罪的毒品）。第二申請人被警誡後說：「阿Sir，間房啲粉係我，畀次機會我啦。」。警員在房間內除了搜到毒品外，還搜到一個電子磅、兩疊分別是紅色及白色的膠紙，以及一張租約。第二申請人是該房間的租客。" } }, { "doc_id": 68, "seg_id": 14, "translation": { "en": "Defence case", "zh-HK": "答辯理由" } }, { "doc_id": 68, "seg_id": 15, "translation": { "en": "Both applicants pleaded not guilty. The 1st applicant elected to give evidence at trial. She was a Mainlander and frequently came to Hong Kong to visit her relatives, including her mother and husband, on the strength of two-way permits. She stayed at her husband’s residence whenever she came here. She admitted that she was in possession of the keys at the time of her arrest because she frequently went to the room to clean it up and tidy it for the 2nd applicant. She denied living in the room. She admitted that she had taken dangerous drug in the room before the police stopped her for a check, and that the 13 packets of dangerous drug found on her were given to her by the 2nd applicant as a reward for cleaning up the room for him. She denied having told the police that she lived in the room with the 2nd applicant. She also denied that the dangerous drug and other items found in the room belonged to her. She said that she went to the room to do the cleanup once every two to three days. Her husband earned a monthly income of tens of thousands of dollars and gave her on average $5,000 each month. She admitted that the $5,000 that her husband gave her each month was insufficient to cover her expenses, so she cleaned up the room for the 2nd applicant in return for dangerous drug. She admitted that she knew the items found in the room were for the purpose of packaging dangerous drug, but denied assisting the 2nd applicant in packaging dangerous drug. She said her husband was not a drug addict and did not know that she was.", "zh-HK": "兩名申請人均否認控罪。第一申請人選擇作供自辯。她是一名內地居民，經常以雙程證來港探親，在香港的親人包括母親及丈夫。她每次來港時都住在丈夫的居所。她承認被警察拘捕時管有涉案的鎖匙，原因是她經常要到該房間替第二申請人打掃及執拾。她否認居住在該房間內。她承認被警員截查之前，她曾在該房間內吸食毒品。她承認在她身上被搜出的 13 包毒品是第二申請人給她作為替他打掃房間的報酬。她否認曾向警方透露過她是和第二申請人在該房間內一起居住。她亦否認警方在房間內搜獲的毒品及其他物品是屬於她的。第一申請人稱她每兩、三天就會到該房間打掃。她的丈夫月入數萬元，每月平均給她五千元。她承認每月從丈夫所得的五千元不敷應用，所以才替第二申請人打掃房間以換取毒品。她承認是知道該房間內的物品是用來包裝毒品的，但否認協助第二申請人包裝毒品。她指她的丈夫不是吸毒的，也不知道她吸食毒品。" } }, { "doc_id": 68, "seg_id": 16, "translation": { "en": "The 2nd applicant said that the dangerous drug found in the room was for his own consumption. He admitted to trafficking in a dangerous drug but alleged that the quantity involved was confined to the 13 packets of dangerous drug found on the 1st applicant by the police.", "zh-HK": "第二申請人指該房間內的毒品是他用來自己吸食的。他承認販運毒品，但涉及的數量只是警方在第一申請人身上搜獲的 13 包毒品。" } }, { "doc_id": 68, "seg_id": 17, "translation": { "en": "The 1st applicant’s convictions", "zh-HK": "第一申請人的定罪" } }, { "doc_id": 68, "seg_id": 18, "translation": { "en": "After trial in the District Court before Deputy Judge Rickie Chan, the 1st applicant was convicted of both charges. Deputy Judge Chan rejected her defence in respect of Charge 1 that the 13 packets of dangerous drug were for her own consumption. He found that she was at the material time delivering the drug to someone. He had doubts about her bringing such a large quantity of dangerous drug home as she claimed that her husband was not a drug addict and that she did not want him to know she took drug.", "zh-HK": "經審訊後，區域法院暫委法官陳錦昌裁定第一申請人的兩項罪名成立。陳法官不接納第一申請人就第一項控罪的答辯。陳法官不接納該 13 包毒品是供第一申請人自己吸食之用，他認為第一申請人當時是正在將毒品運送給其他人。陳法官質疑第一申請人稱她的丈夫不是吸毒者，她亦不想丈夫知道她吸食毒品，卻將如此大量的毒品帶回家裡的做法。" } }, { "doc_id": 68, "seg_id": 19, "translation": { "en": "As regards Charge 2, Deputy Judge Chan was of the view that, judging from the articles found in the room and the layout, the room was a small-scale drug packaging centre. He also found that the packaging appearance of the 13 packets of dangerous drug found on the 1st applicant was very similar to that of the dangerous drug found in the room. He concluded that the 1st applicant was one of the occupants of the room and had participated in the illegal drug trafficking activities in the room.", "zh-HK": "至於第二項控罪，陳法官認為根據該房間內的用品及擺設顯示該房間是一家小型毒品包裝中心，他亦認為在第一申請人身上搜出的 13 包毒品與房間內的毒品的包裝外型極為相似。陳法官裁定第一申請人是該房間的其中一名住客，她是有份參與在該房間內進行的毒品非法販運活動。" } }, { "doc_id": 68, "seg_id": 20, "translation": { "en": "Sentence", "zh-HK": "刑期" } }, { "doc_id": 68, "seg_id": 21, "translation": { "en": "On Charge 1, Deputy Judge Chan adopted a starting point of 18 months’ imprisonment and, on account of the 1st applicant’s plea to possession of the dangerous drug, reduced the term by 3 months, resulting in 15 months’ imprisonment. On Charge 2, Deputy Judge Chan adopted a starting point of 4 years’ imprisonment and, noting that she was a first-time offender and taking into account other mitigating factors, reduced the term by 6 months, resulting in 3½ years’ imprisonment. The two sentences were to run concurrently, making a total sentence of 3½ years’ imprisonment.", "zh-HK": "就第一項控罪陳法官以 18 個月監禁為量刑基準，由於第一申請人承認管有這批毒品，故給予她三個月的刑期扣減，第一項控罪的刑期最終為 15 個月監禁；而就第二項控罪，陳法官以四年監禁為量刑基準，他考慮到第一申請人是初次犯案，以及其他的求情原因，給予她 6 個月的刑期扣減，因此第二項控罪的刑期為三年半監禁。兩項刑期同期執行，總刑期為三年半監禁。" } }, { "doc_id": 68, "seg_id": 22, "translation": { "en": "The 2nd applicant’s conviction and sentence", "zh-HK": "第二申請人的定罪及刑期" } }, { "doc_id": 68, "seg_id": 23, "translation": { "en": "The 2nd applicant admitted to trafficking in a dangerous drug but disputed the quantity of the dangerous drug involved. Deputy Judge Chan therefore held an inquiry into the relevant facts, after which he ruled that the 2nd applicant had illegally trafficked in a dangerous drug the quantity of which was as specified in Charge 2 rather than the 13 packets of drugs found on the 1st applicant. He adopted 4½ years’ imprisonment as the starting point and, taking into account the 2nd applicant’s early plea to possession of the dangerous drug found in the room, reduced the term by 8 months, resulting in 3 years and 10 months’ imprisonment.", "zh-HK": "由於第二申請人承認販運危險藥物罪，但否認藥物的數量，故此陳法官要對案情進行研訊。經研訊後陳法官裁定第二申請人是非法販運第二項控罪所涉及的毒品數量，而不是警方從第一申請人身上搜出的 13 包毒品。陳法官以四年半監禁為量刑基準，但因第二申請人早已承認管有該房間內的毒品，而將刑期扣減八個月，最終刑期為三年零十個月監禁。" } }, { "doc_id": 68, "seg_id": 24, "translation": { "en": "The 1st applicant’s applications", "zh-HK": "第一申請人的申請" } }, { "doc_id": 68, "seg_id": 25, "translation": { "en": "The 1st applicant applied for leave to appeal against conviction in respect of Charge 2 and she was represented by Mr. Kenneth Ho of Counsel. Mr. Ho also applied on her behalf for leave to appeal out of time against her conviction in respect of Charge 1. She represented herself in her application for leave to appeal out of time against sentence in respect of both charges.", "zh-HK": "第一申請人就第二項控罪提出針對定罪的上訴許可申請，而該項申請是由何景文大律師作他的代表。何律師亦就第一項控罪中的定罪提出逾期上訴許可申請。第一申請人本人就兩項控罪的刑期提出逾期上訴許可申請。" } }, { "doc_id": 68, "seg_id": 26, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 68, "seg_id": 27, "translation": { "en": "The grounds of appeal against convictions as advanced by the 1st applicant can be summarized as follows:", "zh-HK": "第一申請人就兩項定罪提出的上訴理由可以簡述如下：" } }, { "doc_id": 68, "seg_id": 28, "translation": { "en": "First, Deputy Judge Chan had erroneously dealt with the burden of proof.", "zh-HK": "陳法官錯誤地處理舉證責任。" } }, { "doc_id": 68, "seg_id": 29, "translation": { "en": "Second, Deputy Judge Chan had failed to give due weight to the 1st applicant’s good character.", "zh-HK": "陳法官沒有就第一申請人的良好品格給予適當的份量。" } }, { "doc_id": 68, "seg_id": 30, "translation": { "en": "Third, Deputy Judge Chan had failed to analyze the facts of the case appropriately.", "zh-HK": "陳法官沒有對案情作出適當的分析。" } }, { "doc_id": 68, "seg_id": 31, "translation": { "en": "Fourth, the inference drawn by Deputy Judge Chan was not the only irresistible inference.", "zh-HK": "陳法官所作的推論並非是唯一無可抗拒的推論。" } }, { "doc_id": 68, "seg_id": 32, "translation": { "en": "Charge 1: overall evidence", "zh-HK": "第一項控罪：整體的證據" } }, { "doc_id": 68, "seg_id": 33, "translation": { "en": "The first, third and fourth grounds of appeal stated above can be dealt with together. In considering whether the trial judge had erred in the burden of proof, analysis of facts and the drawing of inference, we must first of all consider the evidence of the case as a whole. A large quantity of dangerous drug was found to be stored in the room. The judge took the view that the room was in fact a small-scale drug packaging centre. The 1st applicant had just emerged from the building when she was arrested, and the packaging of the 13 packets of dangerous drug found on her was the same as that of the drugs stored in the room. In these circumstances, one of the reasonable inferences was that the 1st applicant was at the material time in the course of delivering dangerous drug from the room to some other person(s).", "zh-HK": "本庭認為法庭是可以一併處理上段的第一、三及四項上訴議題。在考慮陳法官是否在舉證、案情分析及作出的推論上犯上錯誤，本庭必須先考慮案件的整體證據。涉案的房間被發現存放着大量毒品，陳法官認為這個房間其實是一個小型的毒品包裝中心。第一申請人被拘捕時是剛從該大廈走出來，而從她身上搜出的 13 包毒品與房間內存放的毒品包裝是相同的。在這情況下，其中一項合理的推論就是第一申請人當時正在將毒品從該房間運送給其他人。" } }, { "doc_id": 68, "seg_id": 34, "translation": { "en": "The 1st applicant’s defence on this charge, which the judge rejected, was that she was a drug addict and the 13 packets of drugs found on her were for her own consumption. In our view, the judge was justified in rejecting the defence. The greatest doubts harboured by the judge were about this: given the 1st applicant’s husband was not a drug addict and she did not want him to know that she was, why did she have to take the risk of bringing 13 packets of dangerous drug home? In other words, she simply failed to give a reasonable explanation as to why she had to bring 13 packets of dangerous drug home for use. It was her evidence that she could go to the 2nd applicant’s home to do the cleanup and take drug once every two to three days. If this was the case, why did she not go there every day to take drug but bring the drug home instead?", "zh-HK": "就這項控罪第一申請人的答辯是她是一名吸毒者，在她身上的 13 包毒品是她用來自己吸食的。陳法官不接納她的答辯理由。本庭認為陳法官拒絕接納第一申請人的答辯理由是有根據的，其中最令陳法官質疑的就是：既然第一申請人的丈夫不是一名吸毒者，而第一申請人亦不想他知道她吸食毒品，她為甚麼要冒險帶 13 包毒品回家呢？換句話說，申請人根本沒有合理地解釋為何將 13 包毒品帶回家使用。根據她的供詞，她既然可以每兩、三天便到第二申請人的家裡打掃及吸食毒品，為何她不每天都到那裡吸食毒品而要將毒品帶回家呢？" } }, { "doc_id": 68, "seg_id": 35, "translation": { "en": "In our view, once the trial judge rejected the 1st applicant’s defence, then on the facts the only reasonable inference that could be drawn was that the 1st applicant was at the material time trafficking in the dangerous drug in question. We do not think that the trial judge had erred in any way regarding the burden of proof, analysis of evidence or the drawing of inference.", "zh-HK": "本庭認為若陳法官拒絕接納第一申請人的答辯理由，根據案情唯一可作出的合理推斷就是第一申請人當時是正在販運有關的毒品。本庭不認為陳法官在舉證或者在證據分析或者在推論上犯上任何錯誤。" } }, { "doc_id": 68, "seg_id": 36, "translation": { "en": "Good character", "zh-HK": "良好品格" } }, { "doc_id": 68, "seg_id": 37, "translation": { "en": "The legal principle concerning a defendant’s good character can be briefly stated as follows: a professional judge sitting alone without a jury is not required to state in his reasons for verdict that, in considering the defendant’s propensity to commit the offence and the credibility of his defence, due weight should be given to his clear record and hence good character. Unless there is indication that the trial judge failed to consider the defendant’s good character or give it due weight, the appellant court will act upon the basis that the trial judge had properly dealt with the issue, see R. v. Wong Chi Wei and another [1994] 1 HKCLR 94, R. v. Fok Tin Yau [1995] 1 HKCLR 351, HKSAR v. Li Yun Cheung CACC 307/1997. In the present case, Deputy Judge Chan had already stated that the 1st applicant had a clear record, and it was unnecessary for him to go into the issue of good character.", "zh-HK": "有關被告人良好品格的法律原則可以簡述如下：一名專業法官處理非陪審團的案件是不需要在判案理由書內說明，由於被告人是沒有刑事記錄，是一名品格良好的人士，故此在考慮他是否有可能干犯有關罪行及他答辯的可信性時應給予適當的份量。除非有相反的情況顯示原審法官沒有考慮被告人良好品格或給予適當的份量，否則上訴法庭是會接受原審法官已經適當地處理了這議題，見 ：R. v. Wong Chi Wei and another [1994] 1 HKCLR 94 [黃志偉（譯音）]，R. v. Fok Tin Yau [1995] 1 HKCLR 351 [霍天佑（譯音）]，HKSAR v. Li Yun Cheung [李容詳（譯音）] CACC 307/1997。在本案陳法官已經說明第一申請人無刑事記錄，他是無須著墨於良好品格的議題。" } }, { "doc_id": 68, "seg_id": 38, "translation": { "en": "With regard to Charge 1 against the 1st applicant, the trial judge made a finding of fact in which we do not see any error. The application in respect of the conviction on Charge 1 is accordingly dismissed.", "zh-HK": "就第一申請人被控的第一項控罪，陳法官作出了一項事實的裁決。本庭看不到有任何錯誤之處，故此本庭駁回針對第一項控罪的定罪申請。" } }, { "doc_id": 68, "seg_id": 39, "translation": { "en": "Charge 2", "zh-HK": "第二項控罪" } }, { "doc_id": 68, "seg_id": 40, "translation": { "en": "Turning to Charge 2, the trial judge considered that the 1st applicant had knowledge of the dangerous drug being stored in the room. He accepted the police evidence that the 1st applicant had said that she and the 2nd applicant lived in the room together, which also showed that she had connection with the drug in the room. The judge did not accept that the drug found on the 1st applicant were for her own consumption and therefore held that she was at the material time trafficking in the drug which had been processed in the room. In our view, the judge was entitled to find, on the basis of the said facts, that the 1st applicant was also involved in the trafficking of the dangerous drug found in the room.", "zh-HK": "至於第二項控罪，陳法官認為第一申請人對該房間內存放着毒品一事是知情的，他接納警員的證供指第一申請人曾經說過她和第二申請人一同居住在該房間內，這亦顯示她與該房間內的毒品是有關連的。陳法官不接納在第一申請人身上被搜出的毒品是她自用之說，因而裁定她當時是正在販運在該房間內被處理過的有關毒品。本庭認為陳法官是可以根據上述的案情裁定第一申請人亦是涉及販運在該房間內的毒品的。" } }, { "doc_id": 68, "seg_id": 41, "translation": { "en": "Mr. Ho for the 1st applicant submitted that there was no evidence to show that she actually lived in the room, and he complained that the trial judge had not properly considered the relevant evidence when he made that particular finding. In our view, the crux of the present case was not whether the 1st applicant lived in the room, but was the fact that the key found on her could open the door to the room and that she told the police that she lived there, from which it was inferred that she had a close connection with the drug in the room. We see nothing improper in the judge’s inference or finding. The 1st applicant’s application in respect of the conviction on Charge 2 is accordingly dismissed.", "zh-HK": "代表第一申請人的何大律師指本案並無任何證據顯示第一申請人的確住在該房間內，他認為陳法官在作出這個裁決時並沒有適當地考慮到有關的證據。本庭認為本案的重點並非是第一申請人是否在該房間居住，而是在她身上搜獲可以開啟該房間的鎖匙及她曾對警員說她是在該房間居住，因而推斷出她和該房間內的毒品有密切的關係。本庭亦看不到陳法官的推論及裁決有任何不妥之處。故此，本庭駁回第一申請人針對第二項控罪定罪的申請。" } }, { "doc_id": 68, "seg_id": 42, "translation": { "en": "The 1st applicant’s sentence", "zh-HK": "第一申請人的刑期" } }, { "doc_id": 68, "seg_id": 43, "translation": { "en": "The trial judge adopted a very lenient approach in sentencing the 1st applicant. According to the sentencing guidelines in R. v. Lau Tak Ming [1990] 2 HKLRD 370, the 1st applicant should have been sentenced to 4½ years’ imprisonment just for the 9.13 grammes of heroin hydrochloride in Charge 2. We therefore dismiss her application in respect of the sentences for both charges.", "zh-HK": "陳法官就第一申請人的刑期其實已作出了極寬鬆的處理。根據 R. v. Lau Tak Ming （劉德明[譯音]） [1990] 2 HKLRD 370 一案的量刑指引，單以第二項控罪 9.13 克海洛英鹽酸鹽，第一申請人就應該被判四年半監禁。因此本庭駁回第一申請人針對刑期的申請。" } }, { "doc_id": 68, "seg_id": 44, "translation": { "en": "The 2nd applicant’s application for leave to appeal against sentence", "zh-HK": "第二申請人針對刑期的上訴許可申請" } }, { "doc_id": 68, "seg_id": 45, "translation": { "en": "Although Mr. Kevin Chan, Counsel for the 2nd applicant, had previously disputed the quantity of dangerous drug involved in Charge 2, he accepted at the hearing of the application that Charge 2 involved 9.13 grammes of heroin hydrochloride and that a term of 4½ years’ imprisonment was an appropriate sentence. His only complaint was that the discount of 15% given by the Deputy Judge was insufficient.", "zh-HK": "雖然代表第二申請人的陳世傑大律師曾經就第二項控罪毒品的份量提出爭議，但在本申請聆訊時他接納第二項控罪的毒品份量是 9.13 克海洛英鹽酸鹽，並且接納四年半監禁是適當的刑期。他提出唯一的爭議是陳法官給予 15% 的刑期扣減太少。" } }, { "doc_id": 68, "seg_id": 46, "translation": { "en": "Although Deputy Judge Chan explained in his reasons for judgment that the inquiry conducted by him was with regard to the quantity of dangerous drug, the substantive issue in Charge 2 was that the 2nd applicant had only admitted to possessing but not trafficking in the drug. That the 2nd applicant admitted to possession of drug would serve to shorten the trial and this should in our view be encouraged. The court should give him a discount of more than 15%. In our judgment, the appropriate discount should be in the region of 20%, see HKSAR v. Tong Kim Ching, CACC 481/2001 and HKSAR v. Gurung Tikaram, CACC 532/2003. In our view, the appropriate sentence after discount should be 3 years and 6 months’ imprisonment. We therefore allow the 2nd applicant’s application for leave to appeal against sentence and, treating the hearing of the application as the appeal, vary the sentence to one of 3 years and 6 months’ imprisonment.", "zh-HK": "雖然陳法官在判案理由書內解釋他展開案情研訊程序是基於毒品的數量，但實質上第二項控罪的爭議點是第二申請人就該項控罪只承認管有毒品，而不承認販運毒品罪。第二申請人承認管有毒品是會縮短審訊的時間，本庭認為他這樣做是值得鼓勵的，法庭應該給予他高於 15% 的刑期扣減。本庭認為本案適當的刑期扣減應該是約 20%，見：HKSAR v. Tong Kim Ching [唐劍清（譯音）]，CACC 481/2001 及 HKSAR v. Gurung Tikaram，CACC 532/2003。本庭認為經扣減後適當的刑期應該是三年六個月監禁，故此本庭批准第二申請人針對刑期的上訴許可申請，視申請為正式上訴及將刑期更改為三年為六個月監禁。" } }, { "doc_id": 68, "seg_id": 47, "translation": { "en": "Mr. Liu Yuen Ming, Senior Government Counsel, for the Respondent.", "zh-HK": "答辯人：由律政司高級政府律師廖遠明代表。" } }, { "doc_id": 68, "seg_id": 48, "translation": { "en": "Mr. Kenneth Ho, instructed by YC Lee, Pang & Kwok, for the 1st Applicant (re application for leave to appeal against conviction).", "zh-HK": "第一申請人：由李宇祥，彭錦輝，郭威，葉澤深律師事務所轉聘何京文大律師代表處理針對定罪上訴許可申請。" } }, { "doc_id": 68, "seg_id": 49, "translation": { "en": "1st Applicant in person (re application for leave to appeal against sentence).", "zh-HK": "第一申請人親自處理針對刑期上訴許可申請。" } }, { "doc_id": 68, "seg_id": 50, "translation": { "en": "Mr. Kevin Chan, assigned by the Director of Legal Aid, for the 2nd Applicant.", "zh-HK": "第二申請人：由法律援助署委派陳世傑大律師代表。" } }, { "doc_id": 69, "seg_id": 1, "translation": { "en": "Hon. Yeung, J.A. (giving the judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案書：" } }, { "doc_id": 69, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 69, "seg_id": 3, "translation": { "en": "The applicant Chan Cheong Kit, the 2nd defendant Lo Yiu Wai (“Lo”) and the 3rd defendant Fung Man Hei (“Fung”) were tried together before Chief District Judge Patrick Li for 7 offences under the Copyright Ordinance, including:-", "zh-HK": "申請人陳昌杰和第二被告人羅耀偉（“羅”）及第三被告人馮文禧（“馮”）在區域法院首席法官李瀚良席前同被控七項違反《版權條例》的控罪，包括：-" } }, { "doc_id": 69, "seg_id": 4, "translation": { "en": "Conspiracy to sell infringing copies of a copyright work;", "zh-HK": "串謀出售侵犯版權複製品；" } }, { "doc_id": 69, "seg_id": 5, "translation": { "en": "Possession of an article used or is intended to be used to make infringing copies of a copyright work for sale or other purposes, including blank compact discs and compact discs writers,", "zh-HK": "管有用作或擬用作製作侵權複製品作出售等目的之物品，包括空白光碟和光碟燒錄器；" } }, { "doc_id": 69, "seg_id": 6, "translation": { "en": "Making, together with other people, for sale or hire infringing copies of a copyright work;", "zh-HK": "和他人一起製作侵權複製品作出售或出租用；" } }, { "doc_id": 69, "seg_id": 7, "translation": { "en": "Possession, together with other people, of articles used or intended to be used to make infringing copies of a copyright work for sale or other purposes, including about 8,000 blank compact discs, 18 compact discs replicators (each with 2 to 7 compact discs writers);", "zh-HK": "和他人一起管有可用作或擬用作製作侵權複製品作出售等目的之物品，包括近8,000張空白光碟，18台光碟生產機（每台配備二至七部光碟燒錄器；" } }, { "doc_id": 69, "seg_id": 8, "translation": { "en": "Possession, together with other people, of infringing copies of a copyright work at Flat 12, 8th floor, Pacific Trade Centre;", "zh-HK": "和他人在太平洋貿易中心8樓12室管有侵犯版權複製品；" } }, { "doc_id": 69, "seg_id": 9, "translation": { "en": "Possession, together with other people, of infringing copies of a copyright work at Flat I, 6th floor, Wing Lee Building, Kimberley Road; and", "zh-HK": "和他人在金巴利道永利大廈6樓1室管有侵權複製品；及" } }, { "doc_id": 69, "seg_id": 10, "translation": { "en": "Possession, together with other people, of infringing copies of a copyright work at Room 6, Flat D8, 10th floor, Chung King Mansion.", "zh-HK": "和他人在重慶大廈10樓D8室6號房管有侵權複製品。" } }, { "doc_id": 69, "seg_id": 11, "translation": { "en": "The applicant was additionally charged with the 8th charge, a “money laundering” offence. The money involved was 5 million odd dollars.", "zh-HK": "申請人被加控第八項“洗黑錢”罪，涉案款額500多萬元。" } }, { "doc_id": 69, "seg_id": 12, "translation": { "en": "The applicant, Lo and Fung pleaded not guilty to all the charges but were convicted of all the charges on 7 May 2007.", "zh-HK": "申請人、羅及馮都否認全部控罪，但在2007年5月7日他們遭裁定控罪全部成立。" } }, { "doc_id": 69, "seg_id": 13, "translation": { "en": "On 28 May 2007, Judge Li sentenced the applicant to 5 years and 7½ months imprisonment for the 1st charge to the 7th charge, and 4½ years imprisonment for the 8th charge, the “money laundering” offence, of which 6 months were to be served consecutively. The applicant’s total term of imprisonment is 6 years and 1½ months.", "zh-HK": "2007年5月28日，李法官就第一至第七項控罪判申請人入獄5年7 ½ 個月及就第八項“洗黑錢”罪，判他入獄4年半, 其中6個月分期執行。申請人需服的總刑期為6年1 ½個月。" } }, { "doc_id": 69, "seg_id": 14, "translation": { "en": "The applicant applied for leave to appeal against conviction and / or sentence.", "zh-HK": "申請人就定罪及/或判刑提出上訴許可申請。" } }, { "doc_id": 69, "seg_id": 15, "translation": { "en": "At the commencement of this hearing, the applicant abandoned his application in relation to the conviction and that application was dismissed. This Court is only required to consider the application for leave to appeal against sentence.", "zh-HK": "開庭時，申請人放棄了就定罪的申請，該申請亦被撤銷。本庭只需考慮申請人就判刑的上訴許可申請。" } }, { "doc_id": 69, "seg_id": 16, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 69, "seg_id": 17, "translation": { "en": "Between August 2004 and August 2005, Customs officers put the following shops under surveillance: the shop at the lobby entrance, shop 102, shop 121 and shop 122 at the ground floor of Chung Kiu Commercial Building, Shantung Street, Kowloon. In these 4 shops the wrapping covers of compact discs were displayed. The titles of infringing copies of compact discs, graphics and computer codes representing the titles of the infringing copies were printed on the wrapping covers. Price lists showing the selling prices of various compact discs were also displayed.", "zh-HK": "2004年8月至2005年8月期間，海關人員監視九龍山東街中僑商業大廈地下大堂入口鋪，102，121和122號鋪。該四間店鋪展示光碟招紙套，上印有侵權光碟名稱、圖像及代表複製品名稱的電腦編碼、亦有展示價目表列出光碟售價。" } }, { "doc_id": 69, "seg_id": 18, "translation": { "en": "Customers were provided with blank pieces of paper and pencils in these 4 shops for them to write down the computer codes of the compact discs which they were going to buy. After a customer wrote down the code numbers, he handed the piece of paper to the shop assistant. The shop assistant asked the customer to wait for a moment and then he could go to a corridor, a staircase, or an empty shop nearby to collect the infringing copies of compact discs which he ordered.", "zh-HK": "該四間店鋪亦向顧客提供白紙及鉛筆以便他們將購買的光碟電腦編碼寫下。顧客寫下編碼後會將紙交給店員。店員則囑咐顧客稍候在店鋪附近的走廊或樓梯或空鋪提取其預定的侵權光碟。" } }, { "doc_id": 69, "seg_id": 19, "translation": { "en": "In this process the shop assistant would inform, by a mobile phone, the people working in a warehouse where the infringing copies of compact discs were kept the titles and quantities of the compact discs which the customers selected. The warehouse people then followed the directions, packed the discs and made records. After that, the discs would be delivered to the designated places and handed to the customers.", "zh-HK": "同時店員會用手提電話通知在侵權光碟貨倉工作的人員顧客已選擇的光碟名稱及數量。貨倉人員根據指示將侵權光碟包裝及記錄後，將它們送到指定地方交給顧客。" } }, { "doc_id": 69, "seg_id": 20, "translation": { "en": "In fact, in 2004 and 2005 Customs officers had raided these 4 shops a number of times and they discovered infringing copies of compact discs were on sale there. A number of undercover operations had been conducted, in which many Mainlanders sold pirated discs to undercover detectives. The undercover operations ascertained the mode of operation of how pirated discs were sold in these 4 shops.", "zh-HK": "事實上，在2004年、2005年間，關員多次搜查該四間店鋪時，都發現有出售侵權複製光碟的情況。在多次卧底行動，亦有多名內地人士出售盜版光碟給卧底探員。卧底行動確立了上述四間店鋪售賣盜版光碟的模式。" } }, { "doc_id": 69, "seg_id": 21, "translation": { "en": "The Customs officers observed that the applicant, Lo and Fung actively took part in managing the 4 shops and operating the business of selling compact discs. The applicant was present there many times and had contacts with many people who had a hand in these crimes.", "zh-HK": "根據關員的觀察，申請人、羅和馮都有積極參與管理該四間店鋪和售賣光碟的業務。申請人亦多次出現並和參與罪行的多名人士有交往。" } }, { "doc_id": 69, "seg_id": 22, "translation": { "en": "This criminal gang, besides running the shops where the compact discs were on sale and the warehouses where the compact discs were kept, also possessed manufactories for making infringing copies of compact discs. The warehouses and the manufactories were situated at Flat 12, 8th floor, Pacific Trade Centre, 28 Kai Hing Road, Kowloon Bay; Flat I, 6th floor, Wing Lee Building, 27-33 Kimberley Road, Tsimshatsui; Room 6, Flat D8, 10th floor, Chung King Mansion, 40 Tsimshatsui and Flat 4B, 500 Shanghai Street, Kowloon.", "zh-HK": "犯罪集團除了管理出售光碟的店鋪及儲存光碟的貨倉外，亦管有製造侵權光碟工場。貨倉及工場設於九龍灣啟興道28號太平洋貿易中心8樓12室；尖沙咀金巴利道27-33號永利大廈6樓I室；尖沙咀40號重慶大廈10樓D8室6號房及九龍上海街500號4B室。" } }, { "doc_id": 69, "seg_id": 23, "translation": { "en": "Documents and other exhibits seized in the dwelling place and the car of the applicant showed that the applicant actively participated in the crimes of infringing copyrights and pirating compact discs.", "zh-HK": "從申請人的住所及車輛檢獲的文件和其他證據都顯示申請人有積極參與侵權翻版光碟罪行。" } }, { "doc_id": 69, "seg_id": 24, "translation": { "en": "The infringing copies of compact discs involved in this case were more than 70,000 copies; in addition, there were nearly 20 compact discs replicators, each with 2 to 7 compact discs writers. When the Custom officers searched the warehouses and manufactories of these infringing copies of compact discs, they found a large number of two-way permit holders being engaged in the work of packing and making compact discs.", "zh-HK": "案件涉及的侵權光碟數量超過70,000張，亦有近20台光碟翻製機，每台配備2至7部光碟燒錄器。關員搜查侵權翻版光碟的貨倉及工場時，發現有多名持雙程證人士從事包裝及製造光碟工作。" } }, { "doc_id": 69, "seg_id": 25, "translation": { "en": "At all material times, the applicant had a telebet account with the Hong Kong Jockey Club, a savings account and a current account with HSBC and a savings account and a current account with the DBS Bank.", "zh-HK": "申請人在有關時段擁有香港賽馬會電話投注戶口、豐銀行儲蓄及支票戶口和星展銀行儲蓄及支票戶口。" } }, { "doc_id": 69, "seg_id": 26, "translation": { "en": "Between 1 January 2004 and 4 August 2005, a total of $4,919,970 was deposited into the applicant’s telebet account. $3,834,610 of this amount was deposited by way of cash deposits at different betting centres. The money deposited was soon withdrawn and paid into the applicant’s savings account with HSBC. Another sum of money, amounting to $1,200,000 odd, was also paid into the applicant’s 4 bank accounts by way of cash deposits.", "zh-HK": "2004年1月1日至2005年8月4日期間共4,919,970元存入申請人的電話投注戶口，其中3,834,610元是在不同投注站以現金存入，而存入款額很快便被提取及存入申請人的豐銀行儲蓄戶口，其餘的120多萬元亦是以現金存入申請人的四個銀行戶口。" } }, { "doc_id": 69, "seg_id": 27, "translation": { "en": "Ms. Lam Lai Kuen [transliteration,林麗娟], a chartered management accountant of the Customs Investigation Bureau gave evidence that at all material times, of the $4,900,000 odd which was deposited into the applicant’s telebet account with the Jockey Club, $2,200,000 was for betting and the dividend received was about $2,000,000. However, $2,600,000 odd had not been used for betting. About $2,600,000 went through the following process: after money was deposited into the betting account, it was withdrawn on the same day or the following day; and $670,000 of this amount was withdrawn within a very short time after the corresponding deposits were paid into the account. Of the $4,900,000 deposit in the applicant’s telebet account, more than $3,800,000 was deposited at off-course betting centres of the Jockey Club. Ms. Lam’s view was that of the money in the applicant’s betting account at least $2,100,000 cash was of unknown origin.", "zh-HK": "根據海關調查組特許管理會計師林麗娟女士的證供，在有關時段，申請人馬會電話投注戶口存入的490多萬元中，有220萬元用作投注，而收取派彩約200萬元，但有260多萬元，沒用來下注。約有260萬元在存入投注戶口後，當天或翌日便提取，而有67萬元更是在存款後非常短的時間內便立刻遭提取。申請人的電話投注戶口的490萬元存款中超過380萬元是經馬會場外投注戶站存入。林女士認為申請人投注戶口的款項最少有210萬元現金是來歷不明的。" } }, { "doc_id": 69, "seg_id": 28, "translation": { "en": "According to the Inland Revenue Department records, at all material times in this case, the applicant and his wife did not file any return about their incomes at all.", "zh-HK": "根據稅務局記錄，在有關時段申請人及妻子完全沒有申報任何入息。" } }, { "doc_id": 69, "seg_id": 29, "translation": { "en": "It is obvious that the applicant was an important figure in this criminal gang. He used various places to make and store a large quantity of infringing copies of compact discs and, over a long period of time, sold pirated compact discs at the shops on the ground floor of Chung Kiu Commercial Building, resulting in immeasurable financial losses to the copyright owners of those compact discs. Through these crimes, the applicant reaped enormous financial benefits for himself.", "zh-HK": "申請人明顯是犯罪集團的主要人物，他利用不同地點製造及存藏大量侵權光碟，並長時間透過中僑商業大廈地下的多個店鋪出售侵權翻版光碟，對光碟版權持有人做成無可估計的經濟損失。透過其罪行，申請人亦獲得巨大經濟得益。" } }, { "doc_id": 69, "seg_id": 30, "translation": { "en": "Sentences", "zh-HK": "判刑" } }, { "doc_id": 69, "seg_id": 31, "translation": { "en": "The learned judge used 3 years as the starting point for the 1st, 3rd, 5th, 6th and 7th charges and 4 years as the starting point for the 2nd and 4th charges. He made all these sentences concurrent and, because the applicant agreed to part of the facts, he reduced the term of imprisonment by 3 months to 3 years and 9 months. At the same time, pursuant to section 27 of the Organized and Serious Crimes Ordinance, he enhanced the sentence by 50% to 5 years and 7½ months. As for the 8th charge, the “money laundering” charge, he used 3 years as the starting point and similarly enhanced it by 50% to 4 years and 6 months; 6 months of which was to run consecutively to the sentences for the 7 charges about infringing copyright offences, making a total of 6 years and 1½ months imprisonment.", "zh-HK": "原審法官就一、三、五、六及七項控罪採納三年的基本量刑基準，而就二、四項控罪則採納四年基本量刑基準。原審法官將刑期全部同期執行，並因申請人同意部份案情而將刑期扣減3個月至3年9個月。原審法官同時根據《有組織及嚴重罪行條例》第27條將刑期加重50% 至5年7 ½ 月。就第八項洗黑錢罪，原審法官採納3年的基本量刑基準並亦將刑期加重50% 至4年6個月，而其中6個月和七項侵犯版權的刑期分期執行而導致最終的6年1 ½ 個月的判刑。" } }, { "doc_id": 69, "seg_id": 32, "translation": { "en": "Mr. Chiu, counsel for the applicant, submitted that the sentences were too severe. The percentage, namely 50%, by which the sentences were enhanced pursuant to the Organized and Serious Crimes Ordinance was too high. Mr. Chiu argued that the 50% enhancing rate was only applicable to offences like triad-related offences, smuggling of vehicles, illegal trafficking in women to Hong Kong for prostitution and loan sharking, but not suitable for infringing copyright offences.", "zh-HK": "代表申請人的趙不淘大律師指判刑過重，原因是根據《有組織及嚴重罪行條例》加刑50% 的幅度過大。趙大律師指50% 的加刑幅度只適用於涉及黑社會罪行，偷運車輛，非法運送婦女來港賣淫及高利貸等罪行，而不適用於侵犯版權罪行。" } }, { "doc_id": 69, "seg_id": 33, "translation": { "en": "Mr. Chiu stressed that there were similar cases in which the starting points ranged from 2-3 years and that the enhancing rate was only 30%.", "zh-HK": "趙大律師強調有同類案件的判刑基準只是2-3年之間而加刑幅度亦只是30%。" } }, { "doc_id": 69, "seg_id": 34, "translation": { "en": "As far as sentences in similar cases are concerned, although the offences are the same offences, the mode and the scale of the operations are not the same. Therefore, the sentences passed in those cases are not guidelines, albeit not irrelevant.", "zh-HK": "即使是罪行相同，犯案手法及規模都不一樣，其他同類案件的判刑，雖然並非無關，但不具指引作用。" } }, { "doc_id": 69, "seg_id": 35, "translation": { "en": "We must point out that this case is an extremely serious one in this kind of cases. The applicant and his many accomplices had been perpetrating these crimes of making and selling infringing copies of compact discs over a long period of time.", "zh-HK": "本庭須指出，本案是同類案件中極為嚴重的一宗。申請人和多名同謀，長時間從事製造及販賣侵權光碟的罪行。" } }, { "doc_id": 69, "seg_id": 36, "translation": { "en": "There were more than 70,000 infringing copies of compact discs seized by the Customs Officers, but such quantity cannot sufficiently reflect the seriousness of the applicant’s crimes. This is because the Customs officers had kept the applicant and his accomplices under surveillance for more than one year and during this period of time or in a even longer period of time, the applicant’s gang made use of a number of shops in a busy shopping arcade to sell infringing copies of compact discs. There is no way to work out the total amount but it must be a very substantial amount. The scale of operation of the applicant’s gang can be gleaned from the vast sums of money deposited into his accounts.", "zh-HK": "關員搜獲侵權光碟的數量超過70,000張，但該些侵權光碟的數目不足以反映申請人罪行的嚴重性，原因是關員監視申請人和其同謀罪行的時間超過一年，在該段時間或更長時間，申請人的集團利用繁忙商場多個店鋪出售侵權光碟，總額無從計算，但必然是極為可觀。申請人集團的規模亦可從存入其戶口的巨額金錢可見一斑。" } }, { "doc_id": 69, "seg_id": 37, "translation": { "en": "The making and selling of infringing copies of compact discs seriously and adversely affect the interests of the copyright owners, and is harmful to the reputation of Hong Kong as one of the major commercial centres in the world. Since the mid 90’s in the last century, the Government of Hong Kong has publicized extensively against these crimes in order to combat and prevent people from committing these crimes. However, the applicant and his accomplices paid no heed to the Government’s warnings and instead perpetrated these infringing copyright crimes over a long period of time and in an extensive scale.", "zh-HK": "製造及出售侵權光碟，嚴重影響版權擁有者的權益，亦影響香港作為世界主要商業中心之一的聲譽。香港政府上世紀九十年代中已廣泛宣傳，以打擊及阻嚇有關罪行，但申請人及其同謀無視政府的忠告，仍然長時間及大規模地從事侵犯版權的罪行。" } }, { "doc_id": 69, "seg_id": 38, "translation": { "en": "In this case, in addition to the aggravating factors which are sometimes present in similar kind of cases, there are other factors which warrant more severe punishment. The facts show that the applicant’s gang employed many two-way permit holders to assist them in committing these crimes. By such conduct, the applicant’s gang demonstrated that they encouraged those people to contravene their conditions of stay, and there is also a possibility that they exploited those people by paying them very low wages. The applicant must be given a heavy sentence in order to produce any deterrent effect.", "zh-HK": "本案除了具備同類案件的加重罪責因素外，更有額外的加刑原因。案情顯示申請人的集團僱用多名持雙程證人士協助他們從事罪行。該作為不但顯示申請人的集團鼓勵該些人士破壞他們的入境條件，更可能是以極低工資來剝削他們。申請人的罪行必需重判以收阻嚇作用。" } }, { "doc_id": 69, "seg_id": 39, "translation": { "en": "This case is among the worst ones of its kind. We consider that the 4 years starting point adopted by the trial judge for the 2nd and 4th charges is well founded and correct. However, we think that it is questionable whether, after a high starting point was adopted, the term of imprisonment should further be substantially increased by 50% pursuant to the Organized and Serious Crimes Ordinance. As correctly pointed out by Mr. Chiu, to increase the term of imprisonment by 50% pursuant to the Organized and Serious Crimes Ordinance in a pirated compact disc case is unprecedented. According to the authorities submitted to the court by the parties, in pirated compact disc cases, the percentage by which the sentences were enhanced pursuant to the Organized and Serious Crimes Ordinance did not exceed the range of 25% to 30%.", "zh-HK": "本案是同類案件最嚴重的一類。本庭認為就第二及四項控罪原審法官所採納的4年量刑基準是有根據，亦是正確的。但本庭認為採納較高量刑基準後，再根據《有組織及嚴重罪行條例》將刑期大幅度增加50%，有值得商榷之處。誠如趙大律師正確指出，在侵權翻版光碟案件，根據《有組織及嚴重罪行條例》將刑期增加50%是史無前例的。雙方向法庭呈交的案例顯示，在侵權翻版光碟案件，根據《有組織及嚴重罪行條例》加刑幅度不高於25% 至30%。" } }, { "doc_id": 69, "seg_id": 40, "translation": { "en": "We quote the comment in paragraph 10 of the judgment of HKSAR v Ma Suet Chun and two others (CACC 1/2001)", "zh-HK": "本庭複述在香港特別行政區政府 訴 馬雪珍及另外二人（CACC 1/2001）判案書第10段作出的以下評論：" } }, { "doc_id": 69, "seg_id": 41, "translation": { "en": "“Prior to this case there was no precedent to indicate that the court would enhance the sentence by 50% for similar cases. In such circumstances, if the sentence were to be suddenly enhanced by 50%, the defendants would feel a sense of unfairness.”", "zh-HK": "“在本案之前，並沒有任何先例指法庭會就同類案件加重刑期50 %，在這情形之下，將刑期驟增50%對被告人來說會有一種不公平感覺。”" } }, { "doc_id": 69, "seg_id": 42, "translation": { "en": "We would like to emphasize that no matter how abhorring a particular crime is and how serious the facts of a particular case are, restraint should be exercised by the court when passing sentences and the sentencing guidelines should be followed. Otherwise, the severity of sentences in criminal cases would go on increasing. This would lead to inconsistencies in sentencing and the lower courts would be at a loss as to what to do.", "zh-HK": "本庭亦想指出，不論個別罪行如何令人討厭，不論個別案件的案情多麼嚴重，法庭判刑時應有所抑制，亦應跟隨判刑指引，否則刑事案件的判刑會不斷遞升，不但做成判刑不一致，更令人無所適從。" } }, { "doc_id": 69, "seg_id": 43, "translation": { "en": "The facts of this case are serious but in view of the fact that the starting points adopted are already high, we consider that to enhance the sentence by one third pursuant to the Organized and Serious Crimes Ordinance is sufficient. We accept the starting points used by the trial judge and his way of dealing with the terms. However, we reduce the rate of enhancing the sentences pursuant to the Organized and Serious Crimes Ordinance from 50% to one third. The sentence for the 1st, 3rd, 5th, 6th and 7th charges is varied to 48 months. The sentence for the 2nd and 4th charges is varied to 64 months. These sentences are to run concurrently and we reduce the term of imprisonment by 3 months to 61 months, because the applicant agreed to part of the facts, thereby saving time spent in the trial. As for the 8th charge, the “money laundering” charge, we reduce the term to 48 months, 5 months of which are to run consecutively to the sentences for the 7 infringing copyright charges. The total sentence to be served by the applicant is reduced from 6 years and 1 ½ months to 66 months, i.e. 5 ½ years.", "zh-HK": "雖然本案性質嚴重，但考慮到基本判刑基準已屬不輕，本庭認為根據《有組織及嚴重罪行條例》加刑的幅度三份一已足夠。本庭採納原審法官的基本量刑基準及其處理方法，但將根據《有組織及嚴重罪行條例》的加刑幅度由50%減至三份一。就第一、三、五、六及七項控罪的判刑改為48個月，就第二、四項控罪的判刑改為64個月，同期執行。本庭亦因申請人有同意部份案情，節省審訊時間而將刑期減3個月至61個月。就第八項“洗黑錢”罪，本庭亦將刑期減至48個月，其中5個月和七項侵犯版權罪行的刑期分期執行。申請人須服的總刑期由6年1 ½ 個月減至66個月，即5年半。" } }, { "doc_id": 69, "seg_id": 44, "translation": { "en": "We grant the application for leave to appeal and treat it as the formal appeal. The applicant’s appeal against sentence is allowed and the terms of imprisonment are varied as stated above.", "zh-HK": "本庭批准申請人的上訴許可申請，並視申請為正式上訴。本庭判申請人減刑上訴得直，刑期改判如上。" } }, { "doc_id": 69, "seg_id": 45, "translation": { "en": "The Applicant, acting in person in the application for leave to appeal against conviction.", "zh-HK": "申請人：有關定罪 -無律師代表，親自應訊。" } }, { "doc_id": 69, "seg_id": 46, "translation": { "en": "Mr. Charles Chiu, instructed by Y. L. Yeung & Co. , assigned by the Legal Aid Department, for the Applicant in the application for leave to appeal against sentence.", "zh-HK": "有關刑罰 -由法律援助署委派楊英澧律師行轉聘大律師趙不淘代表。" } }, { "doc_id": 69, "seg_id": 47, "translation": { "en": "Mr Felix Tam, Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司檢控官談立豐代表。" } }, { "doc_id": 70, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 70, "seg_id": 2, "translation": { "en": "The Applicant was charged with one count of rape, contrary to section 118(1) of the Crimes Ordinance (Cap. 200), and was convicted after trial before Barnes J and a jury. Barnes J sentenced the Applicant to seven and a half years’ imprisonment. The Applicant sought leave to appeal against conviction and sentence. At the conclusion of the hearing, we dismissed the application on conviction but allowed the application on sentence and substituted a sentence of five and a half years’ imprisonment. What follows are our reasons for judgment.", "zh-HK": "申請人被控一項「強姦罪」，違反《刑事罪行條例》(香港法例第200章)第118(1)條。案件經高等法院原訟法庭法官張慧玲及陪審團審訊後，申請人被裁定罪名成立。張法官判處申請人入獄七年半。申請人就定罪及刑期提出上訴許可申請。本庭在聆訊後駁回針對定罪的申請，但批准針對刑期的申請，以及將刑期更改為五年半監禁。以下是本庭的判案理由。" } }, { "doc_id": 70, "seg_id": 3, "translation": { "en": "Prosecution Case", "zh-HK": "控方案情" } }, { "doc_id": 70, "seg_id": 4, "translation": { "en": "The Complainant, a 16-year-old school girl, met the Applicant on the internet in 2008 and subsequent to that, they had no contact for some time. They resumed contact via MSN on 15th March 2009. The Applicant told the Complainant that he was 25 years old, but in fact, he was 35. The Complainant told the Applicant that she wanted to be a model. They arranged to meet on 19th April 2009 at the Applicant’s residence for a friend of the Applicant to take photos of the Complainant so that the Complainant would have a chance to take up modelling jobs.", "zh-HK": "投訴人是一名16歲的女學生。她於2008年在互聯網上認識申請人，雙方其後一度沒有聯絡。2009年3月15日雙方再次以MSN聯絡。申請人告訴投訴人他的年齡是25歲，但他的真實年齡是35歲。投訴人告訴申請人她想當模特兒。雙方相約在2009年4月19日在申請人的住所見面，並由申請人的一位朋友替投訴人拍照，藉此讓投訴人有機會擔當模特兒的工作。" } }, { "doc_id": 70, "seg_id": 5, "translation": { "en": "On 19th April 2009, the Complainant visited the Applicant’s residence to have a photo-shoot training session. The Applicant had told the Complainant prior to their meeting that she would need to have some alcohol on the day of photo shoots. After the Complainant had arrived at the Applicant’s residence, the Applicant gave her some orange juice mixed with alcohol, saying that the drink would help her loosen up a bit when posing and behave a little more professionally before the camera. The Applicant then took photos of the Complainant. Some of the photos taken depicted the Complainant wearing revealing clothing in sexy poses and some showed the Complainant without knickers on, exposing her private parts. Later, the Complainant became drunk and felt sleepy. She felt the Applicant fondle her abdomen and breasts. She asked the Applicant not to do that, but he was “like losing his mind”; thereafter the Complainant cried. The Applicant walked away, returned 15 minutes later, again told the Complainant to pose and took photos of her. The Complainant said she was heavily drunk and later felt that the Applicant, with his penis inside her vagina, was having sex with her. Despite her desire to resist, she lacked the strength to push the Applicant away. The Applicant stopped the intercourse 15 minutes later, but had sex with the Complainant again after approximately five minutes.", "zh-HK": "2009年4月19日，投訴人到申請人的住所，接受一次拍照訓練。雙方在會面之前，申請人已經告訴投訴人在拍攝當日需要喝一點酒。當投訴人到達申請人的住所後，申請人將一些混合了酒精的橙汁給她飲，並聲稱這杯飲品可使她在擺姿勢時放鬆一點，令她可以拍得專業一點。接着，申請人替投訴人拍照。在這些照片中，有些是投訴人穿著暴露衣服及擺出性感姿勢的照片,有些是投訴人沒有穿著內褲的下體照片。之後，投訴人喝醉酒及覺得睏倦。她感覺到申請人撫摸她的肚及胸部。她叫申請人不要這樣做，但他卻「好像失卻理智一樣」。接着投訴人哭泣。申請人走開了15分鐘後再回來繼續指示投訴人擺姿勢及替她拍照。投訴人說她當時很酒醉，之後感覺到申請人的陰莖插進了她的陰道內及進行性交，她想反抗，但沒有氣力推開申請人。15分鐘後，申請人中止性行為，但過了約五分鐘，他又再次與投訴人性交。" } }, { "doc_id": 70, "seg_id": 6, "translation": { "en": "There was evidence in the case that a few days prior to 19th April 2009 (i.e. on 12th April 2009), the Complainant had visited the Applicant’s residence and that the Complainant visited the Applicant’s residence again for photographs to be taken of her by the Applicant after alleging that she was raped by the Applicant on 19th April 2009 (i.e. on 26th April 2009).", "zh-HK": "案件有證據顯示投訴人在2009年4月19日之前的數天(即2009年4月12日)曾經到過申請人的住所，而投訴人聲稱在2009年4月19日被申請人強姦之後(即2009年4月26日)也再次前往申請人的住所及讓申請人替她拍照。" } }, { "doc_id": 70, "seg_id": 7, "translation": { "en": "The Applicant’s admission of having sex", "zh-HK": "申請人承認性交" } }, { "doc_id": 70, "seg_id": 8, "translation": { "en": "It was an undisputed fact that they had sexual intercourse. According to the admitted facts, the Applicant and the Complainant had sexual intercourse on the day in question. It was the Applicant’s evidence that he had consensual sex with the Complainant twice on the day in question.", "zh-HK": "雙方曾經發生性行為是一項不受爭議的事實。根據雙方承認的事實，申請人與投訴人當日曾經進行性行為。根據申請人本人的證供，他當日曾兩次與投訴人性交，但都是得到她的同意的。" } }, { "doc_id": 70, "seg_id": 9, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 70, "seg_id": 10, "translation": { "en": "While the issue at trial was whether the Complainant consented to the sexual intercourse with the Applicant, this was not the issue pertinent to the Applicant’s application for leave to appeal against conviction. The jury, in our view, could find on the Complainant’s evidence that she did not consent to it when they were having sex; however, her state of intoxication rendered her incapable of resisting. Mr. Sewlyn Yu, Senior Counsel, and Ms. Jolie Chao representing the Applicant accepted that the direction given by Barnes J was fair and that she had directed the jury to give full consideration to the evidence upon which doubts, favourable to the Applicant, arose.", "zh-HK": "雖然原審時的爭議點是投訴人是否同意與申請人性交，但申請人針對定罪的上訴許可申請並不是與這項議題有關。本庭認為陪審團根據投訴人的証供是可以裁定雙方性交時她是不同意的，但因酒醉而無能力反抗。代表申請人的余承章資深大律師及趙芷荺大律師接受，張法官的指引是持平的，及她引導陪審團就針對申請人有利的證供疑點作出全面的考慮。" } }, { "doc_id": 70, "seg_id": 11, "translation": { "en": "The Applicant’s ground of appeal was that reliance was placed by the prosecution on two acts of sexual intercourse as the basis of the allegation against him notwithstanding the fact that there was only one count of rape against him. The prosecution never made it clear which act of sexual intercourse was the one with which he was charged and which was the “uncharged act”. The Applicant submitted that Barnes J was wrong in proceeding with the single count of rape charging two acts of rape. It was the Applicant’s submission that Barnes J, when directing the jury, erred in (1) failing to identify which of the two acts of sexual intercourse between the Complainant and the Applicant was the one alleged in the charge and which was the “uncharged act”; and (2) failing to sufficiently and properly direct the jury in respect of the “uncharged act”, including the criteria of admissibility, use and nature of such “uncharged act”.", "zh-HK": "申請人的上訴理由是雖然他被控一項「強姦罪」，但控方卻依賴兩次的性行為來作為針對他的指控基礎。控方從沒有清楚指出哪一次的性行為才是控告他的罪行，而哪一次的性行為是「不被控告的行為」。申請人指張法官將兩次的強姦行為的指控以一項「強姦罪」來合併處理是錯誤的做法。申請人指張法官向陪審團作出指引時錯誤地(一)未有清楚辨別投訴人與申請人所發生的兩次性行為中哪一次是控罪所指的罪行；哪一次是「不被控告的行為」及(二)未有就該次「不被控告的行為」的證供向陪審團作出充分及適當的指引，這包括該次「不被控告的行為」的證供取證準則、用途和性質。" } }, { "doc_id": 70, "seg_id": 12, "translation": { "en": "Legal principles", "zh-HK": "法律原則" } }, { "doc_id": 70, "seg_id": 13, "translation": { "en": "The two legal principles concerning a “count” in an indictment are as follows:", "zh-HK": "涉及公訴書內「罪名」的法律原則有以下兩點：" } }, { "doc_id": 70, "seg_id": 14, "translation": { "en": "(1)A count on an indictment must not allege two or more separate offences against the defendant (see Archbold Hong Kong 2011, paragraph 1-123). Section 2(2) of the Indictment Rules (Cap. 221, sub. leg. C) provides: “Where more than one offence is charged in an indictment, the statement and particulars of each offence shall be set out in a separate paragraph called a count”. If a “count” on an indictment is “duplicitous”, it may be quashed by the court.", "zh-HK": "(1)公訴書不可以一項「罪名」控告被告人干犯了兩項或以上的不同罪行(見Archbold Hong Kong 2011第1-123段)。《公訴書規則》(香港法例第221章附屬法例C)第2(2)條指「凡公訴書內控告的罪行多於一項，則每項罪行的陳述及詳情，須以獨立段落列出，每一段落稱為一項罪名」。若果公訴書所列的「罪名」存有「重複的罪行」，它是會有可能被法庭撤銷的。" } }, { "doc_id": 70, "seg_id": 15, "translation": { "en": "(2)The evidence adduced or facts alleged against a defendant may disclose latent ambiguities in the indictment. An instance of this is where the prosecution adduces evidence of the defendant’s commission of a number of offences when the defendant is charged with one “count”. In these circumstances, the charge may be dismissed by the court (see Court of Final Appeal, Chim Hon Man v. HKSAR (1999) 2 HKCFAR 145).", "zh-HK": "(2)針對被告人的證供或事實可能顯示公訴書內存有潛在的不清晰之處。其中一項例子是控方在控告被告人一項「罪名」時提出被告人干犯多項罪行的證據。在這情況下，控罪可能被法庭撤銷(見：終審法院Chim Hon Man v. HKSAR (1999) 2 HKCFAR 145)。" } }, { "doc_id": 70, "seg_id": 16, "translation": { "en": "The spirit underlying these two legal principles is fairness in that a defendant should know what charges he faces (see DPP v Merriman [1973] AC 584).", "zh-HK": "這兩項原則的背後精神是為了公平，因為被告人是應該知道他被控告的是甚麼控罪(見：DPP v Merriman [1973] AC 584)。" } }, { "doc_id": 70, "seg_id": 17, "translation": { "en": "The indictment in the present case only alleged one “count” against the Applicant. Consequently, the issue of “duplicity” set out in (1) above did not arise with respect to the indictment.", "zh-HK": "本案的公訴書只是控告申請人一項「罪名」，故此公訴書不存在上述第(1)點提到的「重複罪行」問題。" } }, { "doc_id": 70, "seg_id": 18, "translation": { "en": "The issue on appeal related to (2) above. Mr. Yu, SC, cited the legal principle set out in Chim Hon Man, namely that “in the absence of any act or acts being identified as the subject of an offence charged in an indictment, the prosecution cannot lead evidence that is equally capable of referring to a number of occasions, any one of which might constitute an offence as described in the charge and invite the jury to convict on any one of them”.", "zh-HK": "本上訴的爭議點是有關上述的第(2)爭議點。余大律師引用Chim Hon Man一案所定的法律原則，即「如不能確定某一項或多項作為是公訴書所指控的罪行，控方不能帶領出多次行為的證供，而其中一次是可構成所指控罪行的，然後促請陪審團根據其中一次而定罪」。" } }, { "doc_id": 70, "seg_id": 19, "translation": { "en": "In Chim Hon Man, Sir Anthony Mason NPJ said at page 161I-162B:", "zh-HK": "終審法院非常任法官梅師賢爵士在Chim Hon Man第161I-162B頁說：" } }, { "doc_id": 70, "seg_id": 20, "translation": { "en": "“Knowledge of the particular act, matter or thing which is the foundation of the charge is important in enabling the accused to ascertain and prove what, if any, defence, for example, an alibi, he may have to the offence charged and to subject a Complainant's evidence to searching scrutiny by reference to the surrounding circumstances. An accused person may be subjected to unfairness and embarrassment if he is called upon to meet a charge of one offence based upon evidence of the commission of multiple offences, more particularly if the evidence is such that it does not enable each such offence to be clearly differentiated from the others. The degree of unfairness or embarrassment may vary according to the circumstances. If the prosecution case is based on evidence of many offences in an extended period of time the unfairness may be considerable.”", "zh-HK": "「獲悉哪個確切的行動或事宜構成控罪的根基，是具重要性的，因為這會令到被告人能夠查明及證明他對控罪有什麼答辯，如有的話：例如他並不在犯罪現場這一個答辯，與及令到被告人能夠就周遭的情況，對投訴人的證據作出徹底的審閱。如果一名被告人面對一項控罪，而支持該項控罪的證據顯示發生了多項罪行，尤其是如果該證據未能夠令人把每一個罪行辨別清楚，該名被告人是會蒙受不公。不公的程度則按情況而定。如果支持控方案情的證據，是一段悠長期間內發生了的多項罪行，那麼其不公的程度是相當高的。」" } }, { "doc_id": 70, "seg_id": 21, "translation": { "en": "The Court of Appeal discussed how the court should deal with the evidence of “uncharged acts” in HKSAR v Kwok Hing Tony [2010] 2 HKLRD 761 and the legal principles concerned were affirmed by the Court of Appeal in HKSAR v Chu Chi Wah (No.1) [2010] HKLRD 675.", "zh-HK": "上訴法庭在香港特別行政區訴郭慶 [2010] 3 HKLRD 761一案中討論法庭如何處理「不被控告的行為」的證供。有關的法律原則在香港特別行政區訴朱志華 (No. 1) [2010] 4 HKLRD 675一案被上訴法庭確認。" } }, { "doc_id": 70, "seg_id": 22, "translation": { "en": "Our Views", "zh-HK": "本庭的意見" } }, { "doc_id": 70, "seg_id": 23, "translation": { "en": "We disagreed with the Applicant on the presence of an “uncharged act” in the present case. We agreed with the Respondent’s position that in law, the two acts of sexual intercourse in this instance had satisfied the single sexual intercourse element as set out in the charge and they constituted a single conduct of rape. In the present case, the two acts of sexual intercourse were separated by an interval of five minutes. Both occurred in a room at the Applicant’s residence. In the course of the sexual intercourse on both occasions, the Complainant was unable to resist under the influence of alcohol and she did not consent to the sexual intercourse. In these circumstances, the two acts of sexual intercourse were closely connected in terms of time, location, their nature and purpose. We were of the view that, taking the evidence of the case as a whole, Mr. Yu’s argument that the Complainant might have consented to the sexual intercourse on the second occasion was not on a safe foundation. The Applicant’s defence rested on prior consent having been obtained from the Complainant for the sexual intercourse on both occasions and thus there was no difference in the nature of the sexual intercourse on the two occasions.", "zh-HK": "本庭不同意申請人所說本案涉及另一項「不被控告的行為」。本庭同意答辯人的立場，本案涉及的兩次性行為在法律上是構成控罪所指的單一性交元素及構成單一強姦行為。在本案，兩次性交分隔的時間只是五分鐘。兩次性交均是在申請人居所的房間內進行。在兩次性交時，投訴人都是在酒精的影響下而無法反抗及不同意性交。在這情況下，無論是時間、地點、性質及目的，這兩次的性行為都是有緊密相連性的。雖然余大律師認為投訴人有可能是同意第二次性交，但綜觀整件案的証供，本庭認為他這論點的基礎不穩妥。況且申請人的答辯基礎是兩次性交都是獲得投訴人的同意後才進行的，故此兩次性交的性質是沒有分別的。" } }, { "doc_id": 70, "seg_id": 24, "translation": { "en": "In our judgment, the legal principle applicable to the present case is: where an activity involves more than one act, it is legitimate to join these acts in one charge (see: Jemmison v Priddle [1972] 1 Q.B. 489, 495D). The court, in considering whether an act or acts performed by a defendant constitute commission of an offence or offences, needs to answer the question by applying common sense and deciding what is fair in the circumstances. When a defendant has committed similar acts that are connected in time and place or by their common purpose, such acts can fairly be viewed as the same criminal activity. In those circumstances, it is open to the prosecution to lay a single charge against the defendant.", "zh-HK": "本庭認為本案適用的法律原則是：如果一項活動涉及多於一項的行為，這些行為可以合乎法理地被歸入於同一控罪之中(見：Jemmison v Priddle [1972] 1 Q.B. 489, 495D) 。法庭在考慮被告人所作出的單一行為或者多項行為是否干犯一項或多項罪行時，是需要以常識及當時情況衡量其公平性來解答這提問。當一名被告人干犯了多項類似的行為時，而在時間及地點都是有關連性或有共同目的的話，那麼這些行為可以公平地被視作同一犯罪活動。在這情況下，控方是可以只以一項控罪來起訴被告人。" } }, { "doc_id": 70, "seg_id": 25, "translation": { "en": "In Jemmison, an information was preferred against the defendant for “killing game without licence”. The Court of Appeal found that it was proper to bring a single charge in respect of the defendant’s killing of two deer on the day in question by shooting them separately at the same geographical location in an interval of a few seconds.", "zh-HK": "在Jemmison一案被告人被控一項「沒有牌照殺死獵物罪」 。他在事發當日在同一地點分別射殺了兩頭鹿，相隔的時間只是幾秒鐘。上訴法庭認為以一項控罪作出起訴並無不當。" } }, { "doc_id": 70, "seg_id": 26, "translation": { "en": "In Merriman, the defendant and an accomplice were arraigned on one count of “wounding with intent” for their stabbing of the victim seven times with a knife. Lord Morris said at page 593:", "zh-HK": "在Merriman 一案，被告人與另一名同黨被控一項「有意圖傷人罪」。他們用刀刺了受害人七次。Lord Morris法官在593頁說：" } }, { "doc_id": 70, "seg_id": 27, "translation": { "en": "“The question arises – what is an offence?  If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five?  If A in the dwelling house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several?  In many different situations comparable questions could be asked.  In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances.”", "zh-HK": "「衍生的問題是，何謂一項控罪？若甲攻擊乙，而甲是用刀插乙五次，究竟甲是犯了一項或五項罪行？若甲在乙的住所偷了十件不同的物件，有的是從其中一間房間所取得，而其他則從另外的房間所拿取，究竟甲是犯了一項或多項罪行？在眾多不同的情況中，以上的提問也會出現。以我所見，以常識及相應當時情況衡量其公平性來解答這項提問，最為恰當。」" } }, { "doc_id": 70, "seg_id": 28, "translation": { "en": "In R v Wilson (1979) 69 Cr. App. R. 83, at page 87 of the judgment, the English Court of Appeal acknowledged and applied the legal principles set out in Jemmison and Merriman. The defendant in that case faced eight counts alleging theft by the defendant in eight different stores, each count concerning one of the eight stores, but including a number of thefts by him at different departments in the same store. The Court of Appeal held that the charges concerned were not bad for “duplicity” and consequently it was open to the prosecution to bring a charge against the defendant for each activity (that is, the offence of theft in each charge covered a number of acts of theft).", "zh-HK": "在R v Wilson (1979) 69 Cr. App. R. 83一案中，英國上訴庭在判詞第87頁亦認同及應用了Jemmison 及 Merriman所述的法律原則。在該案被告人被控八項控罪，指他在八間不同的商店內進行偷竊，每一項控罪是針對這八間商店的其中一間，但包括被告人在該間商店內的不同部門進行的多次偷竊。上訴法庭認為有關的控罪並沒有犯上「重複罪行」之弊處，因此就算每一項活動(即每一項控罪的「偷竊罪」包括多項的偷竊行為)，控方也可以一項罪名來控告被告人。" } }, { "doc_id": 70, "seg_id": 29, "translation": { "en": "We did not consider any of the cases cited by the Applicant applicable to the present case for the reason that in all the cases concerned, the offences took place over a longer period of time and some of the incidents involved occurred long ago, as a result of which the prosecution was unable to set out details specific to the old offences when presenting their case.", "zh-HK": "本庭認為申請人所提出的案例皆不適用於本案，因它們均涉及一些為期較長的罪行，當中涉及一些很久以前發生的事，以致控方在舉證時未能清地列出一些陳年罪行的細節。" } }, { "doc_id": 70, "seg_id": 30, "translation": { "en": "(1)In Chim Hon Man, the charges concerned what happened in a period of a month five years back. The prosecution alleged that the victim was repeatedly raped by the defendant in that particular month. The defendant was only charged with two counts of “rape”. The “specimen charges” were based on the Complainant’s allegation that she was raped at least once at night in the first 14 days of that particular month and at least once at night in the next 14 days. The victim in that case stated that she had been repeatedly raped by the defendant but she was unable to be specific as to the date of each rape committed by the defendant and individual incidents. Nor did she have detailed recollection of the incidents. The contents of the indictment were improper.", "zh-HK": "(1)Chim Hon Man 一案的控罪涉及五年前的一個月份內所發生的事，控方指受害人在該個月內曾多次遭被告人強姦。被告人只被控兩項「強姦罪」，而「樣本控罪」是根據受害人稱她最少一次在該月份的首14天晚上和最少一次在其後的14天晚上被人強姦。案中的受害人說她被多次遭被告人強姦，但她未能說出每次遭被告人強姦的日期及個別事件的情況，而且她對事件的記憶並不詳盡，控罪書的內容並不適當。" } }, { "doc_id": 70, "seg_id": 31, "translation": { "en": "(2)In Kwok Hing Tony, there were seven sexual offences. The charges referred to “a day unknown” over a lengthy period of 1½ years (as in charges (a) and (b)) and in the period of a month (as in charges (c), (d), (e) and (g)) (between 1993 and 2006) respectively, the location being a place where the defendant and the complainants were likely to meet often. It was the evidence of the two complainants that in the period overlapping with the time span specified in the charges, the defendant had sexually violated them on many occasions (ranging from ten-odd to tens of times). That the defendant was unable to distinguish the acts with which he was charged from those “uncharged acts” and thus unable to present a defence corresponding to the charges would result in unfairness to the defendant.", "zh-HK": "(2)郭慶 一案涉及七項性罪行，控罪所陳述的日期分別是長達1½ 年(控罪(a)及(b))及一個月(控罪(c)，(d)，(e)及(g))期間內的「某日」(由1993年至2006年)，而地點是被告人和投訴人很可能經常會面的地方。兩名投訴人的證供顯示，在與控罪期間重疊的時段內，被告人曾多次(十多次到數十次不等)對他們作出性侵犯的行為，被告人不能辨別哪項是被控告的行為，而哪項是「不被控告的行為」，因此被告人未能作出相應的答辯，這是會對被告人不公平的。" } }, { "doc_id": 70, "seg_id": 32, "translation": { "en": "(3)In Chu Chi Wah, twelve of the charges alleged that the defendant had unlawful sexual intercourse with an underage girl between 2004 and 2006. The victim in that case gave evidence that she had had sexual intercourse with the defendant of that case on numerous occasions. It was unfair to the defendant that the trial judge did not properly direct the jury as to the obvious presence of “uncharged acts” in her evidence.", "zh-HK": "(3)朱志華 一案中，其中十二項控罪涉及被告人於2004年至2006年期間與未成年女童非法性交。案中的受害女童作證指她曾與該案被告人進行過很多次的性行為。她的証供明顯存有「不被控告的行為」，但原審法官沒有對陪審團作出適當的指引，這對被告人是不公平的。" } }, { "doc_id": 70, "seg_id": 33, "translation": { "en": "(4)In HKSAR v Tam Kon Chung & Anor [1998] 3 HKC 392, the second defendant was left facing one count of rape in the end. The victim said that the defendant had raped her twice, once in the toilet of the flat and once on a mattress placed on the floor of the flat. The appeal against conviction was allowed by the Court of Appeal on the ground that the trial judge of that case should have directed the jury to consider the case in the light of two separate allegations of rape (see 403I of the judgment), and by so doing, the Court of Appeal found that the two rapes in that case could not be considered under the same “activity”.", "zh-HK": "(4)HKSAR v Tam Kon Chung & Anor [1998] 3 HKC 392一案，第二被告人最終面對一項「強姦罪」。受害人說被告人曾兩次強姦她，分別發生於單位的洗手間內和一張放置於單位地上的床墊上。上訴法庭批准針對定罪的上訴，理由是該案的原審法官應該指引陪審團以兩次獨立的強姦指控來考慮案件，(見判詞403I)，上訴庭因此認為該案中的兩次強姦不能以同一項「活動」來考慮。" } }, { "doc_id": 70, "seg_id": 34, "translation": { "en": "In the present case, the two acts of sexual intercourse between the Applicant and the Complainant were both the “charged act” and thus there was no “uncharged act” in the present case. It followed that it was not necessary for Barnes J to give any direction to the jury on “uncharged act”.", "zh-HK": "在本案由於申請人與投訴人所發生的兩次性行為均屬於「被控告行為」，故此本案不存在任何「不被控告行為」的情況。張法官亦無須向陪審團作出任何有關「不被控告行為」的指引。" } }, { "doc_id": 70, "seg_id": 35, "translation": { "en": "Conclusion (on conviction)", "zh-HK": "總結(定罪)" } }, { "doc_id": 70, "seg_id": 36, "translation": { "en": "For the reasons above, we dismissed the application on conviction.", "zh-HK": "基於上述原因，本庭駁回針對定罪的申請。" } }, { "doc_id": 70, "seg_id": 37, "translation": { "en": "Appeal against sentence", "zh-HK": "刑期上訴" } }, { "doc_id": 70, "seg_id": 38, "translation": { "en": "Barnes J, in sentencing the Applicant to seven and a half years’ imprisonment, had considered the following:", "zh-HK": "張法官在判處申請人七年半監禁時考慮了以下各點：" } }, { "doc_id": 70, "seg_id": 39, "translation": { "en": "(1)The Applicant might not have any premeditated plan to deliberately get the Complainant to drink on 19th April 2009 and make her unable to resist in order to rape the Complainant.", "zh-HK": "(1)申請人在2009年4月19日未必是處心積慮、特意安排投訴人喝酒，令她沒有能力反抗，從而強姦投訴人。" } }, { "doc_id": 70, "seg_id": 40, "translation": { "en": "(2)The Applicant merely took the opportunity when the Complainant was drunk to have sex with her and was reckless as to whether she consented to the sexual intercourse. It was not the case where the Applicant had sex with the Complainant, knowing that she did not consent to it.", "zh-HK": "(2)申請人只是利用當時投訴人醉酒的機會而罔顧她是否同意性交而與她發生性行為。申請人不是明知投訴人不同意性交，但仍然與她進行性交。" } }, { "doc_id": 70, "seg_id": 41, "translation": { "en": "(3)The Complainant was only 16 years old and the Applicant did not use any condom in the course of the sexual intercourse.", "zh-HK": "(3)投訴人的年紀只是16歲及申請人當時沒有使用安全套進行性交。" } }, { "doc_id": 70, "seg_id": 42, "translation": { "en": "In view of the points considered by Barnes J, we found that the 7½ years’ imprisonment imposed by her was manifestly excessive. If the Applicant did not have any premeditated plan to deliberately get the Complainant drunk in order to forcibly have sex with her, we found that the appropriate sentence should be one of five and a half years’ imprisonment.", "zh-HK": "本庭認為根據張法官所考慮的各點，她所裁定的七年半監禁刑期是明顯過高。若果申請人不是處心積慮，刻意灌醉投訴人，從而強行與她性交的話，本庭認為適當的刑期應為五年半監禁。" } }, { "doc_id": 70, "seg_id": 43, "translation": { "en": "Conclusion (on sentence)", "zh-HK": "總結(刑期)" } }, { "doc_id": 70, "seg_id": 44, "translation": { "en": "Accordingly, we allowed the application for leave to appeal against sentence and treating the application as the formal appeal, substituted a sentence of five and a half years’ imprisonment.", "zh-HK": "故此本庭批准針對刑期的上訴許可申請，視申請為正式上訴及將刑期更改為五年半監禁。" } }, { "doc_id": 70, "seg_id": 45, "translation": { "en": "Robert Lee, SC, Deputy Director of Public Prosecutions and Noelle Chit, Public Prosecutor, of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司副刑事檢控專員李紹強及戚雅琳檢控官代表。" } }, { "doc_id": 70, "seg_id": 46, "translation": { "en": "Selwyn Yu, SC, and Jolie Chao, instructed by Au & Associates, for the Applicant.", "zh-HK": "申請人：由李炳剛，區紹恩律師行轉聘余承章資深大律師及趙芷筠大律師代表。" } }, { "doc_id": 71, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the Reasons for Judgment of the court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 71, "seg_id": 2, "translation": { "en": "The applicant was charged with one count of “trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134). The drug involved was 1.46 kg of ketamine (commonly known as “K Chai”). The applicant pleaded not guilty. He was convicted after trial before Hon P Li J sitting with a jury and was sentenced to imprisonment for a term of 14 years and 6 months.", "zh-HK": "申請人被控一項「販運危險藥物」罪，違反《危險藥物條例》(香港法例第134章)第4(1)(a)及(3)條。有關毒品是1.46公斤氯胺酮（俗稱「K仔」）。申請人否認控罪，案件經高等法院原訟法庭李瀚良法官及陪審團審理後，申請人被裁定罪名成立及被判監14年6個月。" } }, { "doc_id": 71, "seg_id": 3, "translation": { "en": "The applicant applied for leave to appeal against conviction. At the conclusion of the hearing, this court dismissed the application, and we now give our reasons.", "zh-HK": "申請人就定罪提出上訴許可申請。本庭在聆訊後駁回申請，以下是本庭的判案理由。" } }, { "doc_id": 71, "seg_id": 4, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 71, "seg_id": 5, "translation": { "en": "The prosecution case reveals that in the afternoon on 23 March 2012, a team of police officers carried out surveillance at the staircase on a floor in Choi Tak Estate, Ngau Tau Kok. The police saw the applicant come out from one of the units on that floor with the first prosecution witness of the present case (“PW1”) and a person surnamed Tse. The police went up to intercept them. At that time, PW1 was holding two wooden boxes, inside which were a bag of cane sugar, resealable plastic bags of various sizes, two electronic scales, two spoons and some desiccant beads. Subsequently, traces of “K Chai” were found upon examination on those two spoons and one of the electronic scales. At that time Tse was holding a plastic box and a reusable bag. There were eight packets of “K Chai” inside the plastic box and twenty-three packets of “K Chai” and a bag containing powder of para-aminobenzenesulfonamide inside the reusable bag. The applicant was holding three garbage bags, one of which was containing a damaged resealable plastic bag with traces of “K Chai” inside.", "zh-HK": "控方案情顯示，2012 年3月23日下午，一隊警員在牛頭角彩德邨其中一樓層的梯間監視。警員見到申請人和本案的第一控方證人及一名姓謝的人從該樓層其中一單位出來，警員上前截停他們。當時第一控方證人拿着兩個木盒，木盒內有一袋蔗糖、大小不一的可再封口膠袋、兩個電子磅、兩隻匙羮和一些防潮珠。其後該兩隻匙羮和其中一個電子磅均檢驗到有微量的「K仔」痕跡。當時謝拿着一個膠箱和一個環保袋，膠箱內有八包「K仔」毒品，環保袋內有二十三包「K仔」毒品和一袋裝着氨基苯磺酰胺的粉末。申請人拿着三個垃圾袋，其中一個垃圾袋內有一個已破爛的可再封口膠袋，內有微量「K仔」毒品。" } }, { "doc_id": 71, "seg_id": 6, "translation": { "en": "The unit was the residence where PW1 lived with his family. The police went into the unit for a search but did not find any person. Subsequently, the police seized a thermosealer in the living room of the unit. The police took samples from the three intercepted persons by wiping their hands, and upon examination, both hands of these three persons found to have traces of “K Chai”, whereas no trace of “K Chai” was found on the applicant’s fingernails. At that time, each of these three persons was carrying two mobile phones, and PW1 had $7,021.50 with him, Tse $1,171, and the applicant $823.", "zh-HK": "該單位是第一控方證人和其家人一起居住的居所。警員進入單位內搜查，發現沒有人。其後警員在單位客廳內檢獲一部熱能封口機。警方從三名被截停人士的手抹取樣本，經化驗後發現三名人士的雙手均有微量的「K仔」痕跡，但申請人的指甲則沒有發現「K仔」的痕跡。當時三名人士每人身上都有兩部手提電話，第一控方證人身上有 $7,021.50，謝身上有$1,171，而申請人身上有$823。" } }, { "doc_id": 71, "seg_id": 7, "translation": { "en": "The retail price of the “K Chai” seized at the scene was $211,120. The applicant had no previous criminal record.", "zh-HK": "現場檢獲的「K仔」毒品零售價為$211,120。申請人沒有刑事紀錄。" } }, { "doc_id": 71, "seg_id": 8, "translation": { "en": "The applicant, PW1 and Tse were charged with “trafficking in a dangerous drug”. PW1 pleaded guilty and became a prosecution witness to testify against the applicant. He said that he had got acquainted with the applicant and Tse one to two months before the present case. They seldom communicated with each other and usually met by chance when strolling in Kwun Tong. He said that before this incident, he had never participated in any drug-related activity or dealt with drugs. He was solicited by the applicant and Tse to participate in the trafficking of the dangerous drug in the present case. One to two weeks before the case, the three of them had once talked, and he was asked if he was in need of money. He said that he had voluntarily let them use the unit for packaging “K Chai” with a reward of $1,000 for each 1 kg packaged. He could not recall who had told him to buy cane sugar or electronic scales, dessicant beads, resealable plastic bags and thermosealer, but he did remember that he was repaid some money which was about $300 to $400. Before the case happened, the applicant and Tse had been to that unit once.", "zh-HK": "申請人、第一控方證人及謝被控「販運危險藥物」罪。第一控方證人認罪及成為控方證人指證申請人。他說在案發前一至兩個月認識申請人和謝。各人很少溝通，通常是在觀塘逛街時碰到。他說他在此事件之前，沒有參與毒品的活動或接觸毒品。他是被申請人和謝招攬參與本案的毒品販運。案發前一、兩個星期，他們三人曾交談，有人問他可需要錢用。他說是他自願借出該單位讓他們包裝「K仔」，報酬是每包1公斤就可得到$1,000的報酬。他記不起誰叫他買蔗糖或買電子磅、防潮珠、可再封口膠袋和熱能封口機，不過他記得有人把金錢還給他，大約$300至$400 。案發之前，申請人和謝曾去過該單位一次。" } }, { "doc_id": 71, "seg_id": 9, "translation": { "en": "Shortly after 6 am on the day in question, either Tse or the applicant phoned him and told him about going to his home. Afterwards, he opened the door to let the two go in. One of them was holding a reusable bag and put it on the table. PW1 went back to the bed to sleep and from where he saw someone take out a manila envelope from the reusable bag, and later he was told to help in packaging drugs. The three of them had spent about ten to twenty minutes on drug packaging and after that they went to sleep until around 3 pm when PW1’s mother called and said that she was coming home. Hence he told the other two to pack things up and leave the unit. The three of them were intercepted by the police outside the door of the unit.", "zh-HK": "在案發當日早上六時許，謝和申請人其中一人打電話給他說會到他的家，之後他開門讓兩人進入單位，其中一人拿着一個環保袋，並把它放在檯上。第一控方證人回到床上睡覺，但在床上他見到有人從環保袋中拿出一個公文袋，後來有人叫他幫手包裝毒品。他們三人用了大約十多分鐘包裝毒品，之後各人睡覺，直至下午三時許第一控方證人媽媽來電說她正回家，於是他叫其他兩人執拾好東西後離開單位。他們三人在單位門外被警員截停。" } }, { "doc_id": 71, "seg_id": 10, "translation": { "en": "Defence case", "zh-HK": "辯方案情" } }, { "doc_id": 71, "seg_id": 11, "translation": { "en": "The applicant elected to give evidence. He got acquainted with PW1 on 23 March 2012 and had known Tse for about four years. He had never agreed with PW1 and Tse to traffic in dangerous drugs, nor had he taken part in packaging dangerous drugs or any drug-related activity. He knew nothing about the dangerous drug involved on the day in question. Before the incident, in the small hours, he went to play billiards. Afterwards, shortly after 7 am, he accompanied Tse to go to PW1’s home to play computer games. Having played computer games for a while, he went into the room of PW1’s mother to sleep. It was not until sometime in the afternoon that PW1 suddenly woke him up, saying his mother was coming back from the Mainland and asked Tse and him to leave quickly. PW1 gave him some garbage bags, so he helped PW1 clear away the rubbish on the table and wiped the rubbish from the table into the garbage bag with his hands. Afterwards, he was arrested when leaving the unit with these garbage bags in his hand. He said he did not know at all that there was “K Chai” inside the unit, and that he had never participated in packaging “K Chai”. He guessed that his hands got contaminated with the traces of “K Chai” when he wiped the table surface.", "zh-HK": "申請人選擇作供自辯。他在2012年3月23日認識第一控方證人。他認識謝大約四年。他從來沒有和第一控方證人及謝協議販運毒品，亦沒有參與包裝毒品或任何毒品的活動，他對事發當日的毒品毫不知情。他在案發前的凌晨去了打桌球，之後在早上大約七時許陪同謝到達第一控方證人的家玩電腦遊戲。他玩電腦遊戲一會後，便進入第一控方證人媽媽的房間內睡覺。直至下午時份，第一控方證人突然拍醒他，說他媽媽正從大陸回來，要求他和謝快點離開。第一控方證人給他一些垃圾袋，他便替第一控方證人執拾檯面的垃圾，並分別用雙手把檯面的垃圾掃進垃圾袋內。他之後就是在拿着這些垃圾袋離開單位時被警方拘捕。他說他完全不知道單位內有「K仔」毒品，亦沒有參與過包裝「K仔」，他估計他手上的微量「K仔」痕跡是他掃檯面時接觸到的。" } }, { "doc_id": 71, "seg_id": 12, "translation": { "en": "Application for disclosure of prosecution information", "zh-HK": "披露控方資料的申請" } }, { "doc_id": 71, "seg_id": 13, "translation": { "en": "Before dealing with the application for leave to appeal, we first heard in chambers the application made by the applicant for disclosing whether PW1 was an informer providing information on dangerous drugs to the law enforcement authority. At the conclusion of the hearing, we dismissed this application.", "zh-HK": "本庭在處理上訴許可申請前，先以閉門形式審理申請人申請答辯人披露第一控方證人是否為執法機關線人，向他們提供毒品資料。本庭在聆訊後駁回這申請。" } }, { "doc_id": 71, "seg_id": 14, "translation": { "en": "1)Circumstances at the trial", "zh-HK": "1)原審的情況" } }, { "doc_id": 71, "seg_id": 15, "translation": { "en": "Before the trial, Mr Clement Lau of counsel, representing the applicant, had requested the prosecution to disclose if PW1 had provided information on dangerous drugs to the police. At that time, the inspector in charge of the case said that PW1 was not an informer of the team which handled the present case or an informer of any law enforcement authority. On the basis of such information, Mr Lau did not ask PW1 if he had provided any information to the police when cross-examining him at the trial. Before this appeal hearing, the lawyers for the applicant wrote to the respondent, requesting the police to reconfirm the information which had been previously disclosed. However, the respondent in reply only confirmed the inspector had said that PW1 was not an informer of the team, but denied the inspector had said that PW1 was not an informer of any law enforcement authority. The applicant therefore made this application.", "zh-HK": "在原審前，代表申請人的劉仲文大律師曾要求控方披露第一控方證人是否曾經提供毒品資料給警方。當時負責案件的督察說第一控方證人不是處理本案小隊的線人，也不是任何執法機關的線人。根據這資料，劉大律師在原審時沒有盤問第一控方證人他有否提供資料給警方。在本上訴聆訊之前，申請人的代表律師致信答辯人，要求警方再次確認之前披露的資料，但答辯人的回覆只是確認督察曾經說過第一控方證人不是該小隊的線人，但否認督察曾經說過第一控方證人不是任何執法機關的線人。申請人於是提出這申請。" } }, { "doc_id": 71, "seg_id": 16, "translation": { "en": "2)Applicant’s grounds", "zh-HK": "2)申請人的理據" } }, { "doc_id": 71, "seg_id": 17, "translation": { "en": "Mr Lau submitted that it was a primary principle in criminal trials that the prosecution must disclose information relevant to the case to the defence. The prosecution’s refusal to disclose material information relevant to the case would cause material impropriety to the trial and render it unfair. PW1 was the only key witness in the present case, and the prosecution relied on PW1 to prove the applicant’s knowledge of and participation in packaging the dangerous drug in question. Therefore, on this principle, the information related to PW1 was obviously relevant to whether the applicant was innocent. What was more important, PW1 testified in court that he had had no experience in drug trafficking, that he had been solicited and hired by the applicant to take part in trafficking in the drug in the present case, that they had before the case already reached an agreement of arranging PW1 to purchase trafficking paraphernalia for packaging drugs, that the agreement was to be carried out on the day in question, and that the applicant instructed him how to package the drug in question. The prosecution relied upon the testimony to directly show that the applicant must have had the knowledge of and participated in the trafficking of the dangerous drug in question. This is the key issue in the present case. The applicant denied having solicited PW1 and claimed that he did not know about the trafficking of the dangerous drug in question or take part in it.", "zh-HK": "劉大律師說刑事審訊中的一個大原則，是控方必須向辯方披露與案相關的資料。如果控方拒絕披露與案相關的關鍵性資料，這會導致該審訊具關鍵性的欠妥之處及使審訊不公。第一控方證人是本案唯一的關鍵證人，控方倚賴第一控方證人以證明申請人知悉並有份參與包裝涉案毒品。因此，在大原則上，第一控方證人的相關資料明顯與申請人清白與否有關。更甚的是，第一控方證人於庭上表示，他從沒有販運毒品的經驗，是由申請人招攬及聘請他參與本案的毒品販運，他們於案發前已達成協議安排第一控方證人購買販運毒品的工具以進行包裝毒品的活動，並於案發當天執行該協議，由申請人指示他如何包裝涉案的毒品，控方以此來直接指控申請人必定知悉並有份參與涉案毒品的販運，這是本案控罪的關鍵元素。申請人否認招攬第一控方證人，申請人並不知悉有關的毒品販運，亦沒有參與其中。" } }, { "doc_id": 71, "seg_id": 18, "translation": { "en": "Basing on the above circumstances, if PW1 had previously provided dangerous drug-related information to any law enforcer or had been an informer in a dangerous drug case, it would be directly contradictory with what he said in court: “hav[ing] no experience in drug trafficking, and he was solicited, hired and instructed by the applicant to take part in trafficking in the dangerous drug”. Obviously, if PW1 already had the experience of trafficking in dangerous drugs before the present case, it must be an important factor for the jury in the consideration of the role and “knowledge” of each person in the case. Such being the case, the information of which the applicant applies for disclosure is clearly directly related to the applicant’s innocence.", "zh-HK": "基於上述情況，假若第一控方證人過往曾向執法人員提供毒品相關的資訊或曾為毒品案件中的線人，這會與第一控方證人在庭上說「對毒品販運從沒經驗，是申請人招攬、聘請及指示他參與毒品販運」有直接矛盾。明顯地，如第一控方證人在本案前已是對毒品的販運有經驗，這必然是陪審團考慮案中各人角色及是否「知情」的一重要因素。既然如此，申請人所申請披露的資料，明顯地與申請人的清白有着直接的關連。" } }, { "doc_id": 71, "seg_id": 19, "translation": { "en": "Although at this stage, the prosecution and the applicant dispute over the details of the answer that has been given by the prosecution, if it is proved that PW1 has actually provided drug-related information to law enforcers, then regardless of which side is to be relied on, the prosecution has simply failed to disclose such crucial information to the applicant, and it would therefore be an undisputable fact that the applicant has been deprived of the opportunity of cross-examining PW1 at the trial. More importantly, the jury was deprived of the information in this regard in considering whether the applicant had the knowledge, which amounts to material impropriety and renders the trial unfair, and should be one of the grounds of appeal advanced by the applicant. Mr Lau submitted that the present case came within the exceptional circumstances which depart from the doctrine of “informer privilege”.", "zh-HK": "縱使在現階段控方及申請人一方就審訊前控方曾給予的答案詳情有所爭議，但假如第一控方證人確實曾向執法人員提供毒品相關的資訊，則無論基於哪一方的說法，控方均沒有就此關鍵性的資料向申請人一方作出披露，因此申請人一方在審訊時喪失了以此盤問第一控方證人的機會是不爭的事實。更重要的是，陪審團在考慮申請人是否知情時缺少了這方面的資料，形成具關鍵性的欠妥之處，使審訊不公平，理應為申請人的上訴理據之一。劉大律師說本案是偏離「告密者特權」的例外情況。" } }, { "doc_id": 71, "seg_id": 20, "translation": { "en": "3)“Informer privilege” — the exceptional circumstances and disclosure procedures", "zh-HK": "3)「告密者特權」，其例外的情況及披露程序" } }, { "doc_id": 71, "seg_id": 21, "translation": { "en": "The Court of Appeal in HKSAR v Agara Isaiah Bishop [2014] 2 HKLRD 648 confirmed the importance of “informer privilege” and the exception to such privilege. The exception is that the disclosure of the information could demonstrate the innocence of the accused. Yuen JA adopted the principle applied by the Canadian Supreme Court in expounding the privilege in R v Leipert [1997] 1 SCR 281:", "zh-HK": "上訴法庭在HKSAR v Agara Isaiah Bishop [2014] 2 HKLRD 648一案確認「告密者特權」的重要性及偏離該特權的例外情況。這例外情況是被披露的資料可顯示被告人是無辜的。上訴法庭法官袁家寧採用加拿大最高法院在R v Leipert [1997] 1 SCR 281闡釋該特權的原則：" } }, { "doc_id": 71, "seg_id": 22, "translation": { "en": "“36.The Court held that ‘informer privilege is an ancient and hallowed protection which plays a vital role in law enforcement.  It is premised on the duty of all citizens to aid in enforcing the law.  The discharge of this duty carries with it the risk of retribution from those involved in crime.  The rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same’ (at 289).  It acknowledged that the rule against disclosure of information which might identify an informer ‘is of fundamental importance to the workings of a criminal justice system’ and ‘the role of informers in drug-related cases is particularly important and dangerous’ (at 289).", "zh-HK": "「36.法庭裁定:“舉報人保密權給予的保障，源來久遠，神聖不容侵犯，對於執行法紀有關鍵作用。保密權的大前提建基於全民有責協助執法。履行這責任帶來風險，會招來涉案罪行的人報復。舉報人保密權的規定由此發展而來，目的是保護協助執法的公民，並鼓勵別人效法”（第289頁）。關於不得披露可能辨識舉報人身分的資料這規定，法庭確認其“對刑事司法制度的運作有基本重要性”，而“毒品相關案件中的舉報人，身分尤其重要和危險”（第289頁）" } }, { "doc_id": 71, "seg_id": 23, "translation": { "en": "37.  ‘Informer privilege is subject only to one exception, known as the “innocence at stake” exception’ (at 295). To raise this exception, there ‘must be a basis on the evidence for concluding that disclosure of the informer’s identity is necessary to demonstrate the innocence of the accused’ (at 295).  One such basis is where the informer ‘is a material witness to the crime or acted as an agent provocateur ... Where such a basis is established, the privilege must yield to the principle that a person is not to be condemned when his or her innocence can be proved’ (at 296).  (Emphasis added).”", "zh-HK": "37．“舉報人保密權只受限於一個例外情況，就是‘清白攸關’ (innocence at stake)的例外情況”（第295頁）。要提出例外情況，“須在證據上有基礎達至結論，斷定披露舉報人身分是為顯示被告清白而必需的。（第295頁）。這些基礎其中一項是舉報人“是罪行的關鍵證人或以煽動者(agent provocateur)身分行事……如能確立這基礎，基於能證清白者不得被懲的原則，保密權必須屈居其後”（第296頁）」" } }, { "doc_id": 71, "seg_id": 24, "translation": { "en": "The Court of Appeal has laid down the following principles on allowing an exception to informer privilege:", "zh-HK": "上訴法庭亦就偏離該特權而容許法庭披露告密者資料定下以下的原則：" } }, { "doc_id": 71, "seg_id": 25, "translation": { "en": "unless the relevant information is necessary to demonstrate the innocence of the accused, no disclosure shall be allowed;", "zh-HK": "除非有關資料是必須以證明申請人的清白，否則不容披露；" } }, { "doc_id": 71, "seg_id": 26, "translation": { "en": "the onus is on the applicant to show that the information is necessary;", "zh-HK": "責任在申請人去證明資料是必須的；" } }, { "doc_id": 71, "seg_id": 27, "translation": { "en": "there must be evidence that provides a basis for requiring disclosure;", "zh-HK": "必須有證據基礎支持披露要求；" } }, { "doc_id": 71, "seg_id": 28, "translation": { "en": "speculation that the information may assist the applicant must be resisted; and mere speculation does not constitute a basis for an invasion of the informer privilege;", "zh-HK": "不應猜測資料可能對申請人會有幫助；猜測不構成侵犯告密者特權的基礎；" } }, { "doc_id": 71, "seg_id": 29, "translation": { "en": "the court should be alert to the danger of a proliferation of unmeritorious applications；", "zh-HK": "法庭必須對可能濫作申請的危險予以警惕；" } }, { "doc_id": 71, "seg_id": 30, "translation": { "en": "the court should accord the special role of informers particular weight.", "zh-HK": "法庭必須對告密者的特別角色予以特別比重。" } }, { "doc_id": 71, "seg_id": 31, "translation": { "en": "4)Steps for applying for disclosure", "zh-HK": "4) 申請披露的步驟" } }, { "doc_id": 71, "seg_id": 32, "translation": { "en": "Regarding the procedures of applying for disclosure, the Court of Appeal also adopted the guidelines laid down at page 300 in R v Leipert:", "zh-HK": "上訴法庭就申請披露的程序亦採用R v Leipert 第300頁所訂立的指引 :" } }, { "doc_id": 71, "seg_id": 33, "translation": { "en": "“First, the accused must show some basis to conclude that without the disclosure sought his or her innocence is at stake. If such a basis is shown, the court may then review the information to determine whether, in fact, the information is necessary to prove the accused’s innocence. If the court concludes that disclosure is necessary, the court should only reveal as much information as is essential to allow proof of innocence. Before disclosing the information to the accused, the Crown should be given the option of staying the proceedings. If the Crown chooses to proceed, disclosure of the information essential to establish innocence may be provided to the accused.”", "zh-HK": "「首先，被告須提出一些基礎達至結論，斷定若不獲得所尋求披露的資料，則清白攸關，無辜堪虞。若有此基礎提出，法庭然後可檢視有關資料以決定該等資料事實上是否為證明被告清白而必需的。法庭若作出結論，認為披露資料是必需的，則法庭透露的資料，應僅限於可證明被告清白的必不可少資料。法庭向被告披露資料前，控方應有選擇權，選擇是否擱置法律程序。若控方選擇繼續進行法律程序，則可向被告提供用來證實被告清白的必不可少資料。」" } }, { "doc_id": 71, "seg_id": 34, "translation": { "en": "5)Cases in which the informer is the key witness", "zh-HK": "5) 告密者是重要證人的案例" } }, { "doc_id": 71, "seg_id": 35, "translation": { "en": "The informer being a key witness relevant to the case would be supportive to the application for disclosure, see Leipert and R v Scott [1990] 3 SCR 979. The Canadian case of R v Davies (1982) 1 CCC (3d) 299 and United States case of Roviaro v United States 353 US 53 (1957) 623 are two precedents showing how an informer is a key witness in the case. In the case of Davies, the accused got acquainted with a police informer B. B requested the accused to provide a drug supplier to the police officer who was disguised as a drug buyer, and B agreed to pay reward to the accused. Subsequently, the accused provided information to B. The accused arranged for the drug supplier and the disguised buyer to meet for drug purchase but was arrested by the police. The informer B did not testify. It was the accused’s defence that that his duty was only to introduce the drug supplier and he had not taken part in the purchase and sale of dangerous drugs. The court held that the police were required to disclose B’s information for the accused to call him because B was the only support of the accused’s claim, namely he was only responsible for introducing the supplier and any transaction was negotiated by the supplier and the buyer themselves. B was an important witness to support whether the accused was guilty or innocent. In the case of Roviaro, the accused got seated on board the informer’s vehicle, instructed the informer to drive to a place, and then got off to pick up a packet of dangerous drug on the road, put it on the informer’s vehicle and then left. The informer did not give evidence. The court held that the informer was a key witness and the police were required to disclose his information.", "zh-HK": "若果告密者是案件有關連的重要證人，這是支持有關披露申請的，見：Leipert及R v. Scott [1990] 3 SCR 979案。加拿大 R v Davies (1982) 1 CCC (3d) 299 及美國 Roviaro v. United States 353 US 53 (1957) 623 是兩宗告密者如何是案件中重要證人的案例。在Davies 一案，被告人結識一名警方告密者B。B要求被告人提供毒品供應者給假扮毒品買家的警員，B答應支付酬金給被告人。之後被告人向B提供資料。被告人安排毒品供應者與假買家會面購買毒品，但被警方逮捕。告密者B沒有作證。被告人的答辯理由是他只是負責介紹毒品供應者，但沒有參與毒品買賣活動。法庭裁定警方需要披露B的資料讓被告人傳召他作供，原因是B是唯一可以支持被告人所說，他只是負責介紹供應者，而任何交易是由供應者和買家自行商討。B是可以支持被告人有罪或無辜的重要證人。在Roviaro一案，被告人坐上告密者的車輛，指示告密者駛車到一地方，並下車在路上拾起一包毒品，放在告密者的車裏，然後離開。告密者沒有作證。法庭認為告密者是重要證人，警方需要披露他的資料。" } }, { "doc_id": 71, "seg_id": 36, "translation": { "en": "6)Circumstances in the present case", "zh-HK": "6) 本案的情況" } }, { "doc_id": 71, "seg_id": 37, "translation": { "en": "In the present case, PW1 was a witness called by the prosecution and testified in court. According to the facts of the case, it was upon receiving intelligence that the police prepared for this operation in which PW1 was the target. PW1 had not arranged the applicant and Tse to go to his place, and the applicant did not say that either. Such facts (namely PW1 himself being arrested and prosecuted, pleading guilty and testifying against a co-offender in court) are plainly different from the general situation in which the informer may set up to trap the accused in advance. We do not see the relevance between whether PW1 was an informer of the law enforcement authority and the applicant’s defence, not to mention any essential relevance.", "zh-HK": "在本案，第一控方證人是控方傳召的證人，及在法庭作供。根據案情，警方是接到情報部署這次行動，而第一控方證人是行動的目標人物。第一控方證人沒有安排申請人和謝到他的家，而申請人也沒有這樣說。這些事實(即第一控方證人自己被捕、起訴、認罪及出庭指證共同犯罪者) ，與一般告密者可能預先設計陷害被告人的情況截然不同，本庭看不到第一控方證人是否為執法機關的線人與申請人的答辯理由有甚麼關連，遑論重要關連。" } }, { "doc_id": 71, "seg_id": 38, "translation": { "en": "The applicant contended that if PW1 had previously provided intelligence on dangerous drugs, then he must have the experience in drug trafficking, and this would contradict his testimony in court, namely, that he had not taken part in any dangerous drug activity or deal with drugs before the present case. PW1 said, “Previously, knew there were such things, but have not touched, no participation.” He alleged that the applicant and Tse had solicited him to take part in drug trafficking in the present case. In our view, taking it to the highest, the applicant only used this point to attack PW1’s integrity, showing the inconsistencies and contradictions in his evidence, which however has no direct relation with the key issue of the case — it is not the sort of information that proves the innocence of the accused. As the Canadian Supreme Court said in R v McClure [2001] 1 SCR 445, if the accused only challenged the credibility or raised collateral matters, it would be difficult to meet the standards required of stage one (see para 55). It was reiterated that in most cases, unless the privileged information went directly to one of the elements of the offence, it would not be sufficient to meet this requirement. If the evidence provided simply advanced ancillary attacks on the prosecution case (eg by impugning the credibility of a prosecution witness, or by providing evidence suggesting that some of the prosecution evidence was obtained unconstitutionally) it would very seldom be sufficient to meet this requirement (para 58).", "zh-HK": "申請人指若果第一控方證人以往曾經提供毒品情報，他必定對販運毒品有經驗，這與他在庭上的作供有矛盾，即他作供指在案發之前，他沒有參與毒品的活動或接觸毒品。第一控方證人說「之前係知有呢D，但係冇掂，冇參與」。他指申請人和謝招攬他參與本案的毒品販運。本庭認為極其量，申請人只是利用這點去打擊第一控方證人的誠信，證明他前言不對後語，證供矛盾，但這與案件的核心議題無直接關係，這不是屬於證明被告清白的資料。正如加拿大最高法院在R v McClure [2001] 1 SCR 445一案說，如果被告只質疑證人的可信性，或者提出附帶的問題，就難以符合第一階段所要求的標準（見第55段）。法庭重申，在大部份案件中，除非受保密權保護的資料直接與罪行元素其中一項有關，否則不足以符合這項要求。如果提供的證據，純粹是順帶攻擊控方案情，例如攻擊控方證人的可信性，或提供的證據指控方某些證據是違憲取得，則甚少足以符合這項要求（第58段）。" } }, { "doc_id": 71, "seg_id": 39, "translation": { "en": "Furthermore, we agree with Mr Tam DDPP that the applicant had at trial adduced other evidence to suggest the existence of contradictions in PW1’s evidence, and that it was not necessary for the applicant to rely on any additional information to perfect his defence. With reference to the above precedents, it can be seen that the ground raised by the applicant was not a suitable one to support the application for disclosure.", "zh-HK": "再者，本庭同意副刑事檢控專員譚耀豪所說，在原審時，申請人已提出其他證供指出第一控方證人的證供存有矛盾之處，申請人是無須依賴任何額外資料去作出更完整的答辯。從上述案例可見，申請人所提出的並非是一個適合的理由去支持披露申請。" } }, { "doc_id": 71, "seg_id": 40, "translation": { "en": "Since the applicant had failed to prove that whether PW1 had previously provided intelligence of dangerous drugs was sufficient to prove his innocence, his application was dismissed.", "zh-HK": "由於申請人未能證明第一控方證人有否曾經提供毒品情報的資料是足以證明他是無辜的，故此本庭駁回申請。" } }, { "doc_id": 71, "seg_id": 41, "translation": { "en": "Application for leave to appeal", "zh-HK": "上訴許可申請" } }, { "doc_id": 71, "seg_id": 42, "translation": { "en": "Mr Lau complained that P Li J had not been impartial and had indicated his personal views and stance repeatedly in the course of dealing with the case. P Li J made mistakes in his summing up, which caused undue influence on the jury. In summary, P Li J has failed to give proper directions to the jury and thus deprived the applicant of a fair trial. This ground can be summarised as follows:", "zh-HK": "劉大律師指李法官於處理本案期間欠持平，多次顯露個人意見及立場。李法官在總結事實上犯錯，使陪審團受到不適當的影響。總括而言，李法官未能向陪審團作出正確的指示，因而剝奪了申請人公平審訊的機會。這理據歸納為如下各點：" } }, { "doc_id": 71, "seg_id": 43, "translation": { "en": "I.P Li J has misdirected the jury in the consideration of the contradictions in PW1’s evidence", "zh-HK": "I． 李法官以錯誤的方式引導陪審團考慮第一控方證人的證供矛盾之處" } }, { "doc_id": 71, "seg_id": 44, "translation": { "en": "At trial, the defence pointed out that there were many inconsistencies and contradictions in PW1’s testimony in court, his written statement and the video recorded interview.", "zh-HK": "在原審時辯方曾指出，第一控方證人的庭上證供、書面及錄影會面下的供詞有着很多出入及矛盾之處。" } }, { "doc_id": 71, "seg_id": 45, "translation": { "en": "1.1)Firstly, regarding when he had got acquainted with the applicant, PW1 gave different versions, and the details are as follows:", "zh-HK": "1.1)首先，就何時認識申請人一事上，第一控方證人曾給予很多不同的版本，詳情如下：" } }, { "doc_id": 71, "seg_id": 46, "translation": { "en": "i)In court, PW1 said that he had got acquainted with the applicant one to two months before the case;", "zh-HK": "i)在庭上，第一控方證人指他在案發前一至兩個月認識申請人；" } }, { "doc_id": 71, "seg_id": 47, "translation": { "en": "ii)In the record of interview on 4 March 2013 which was made without prejudice to his own interests (“non-prejudicial statement”), PW1 indicated that he had got acquainted with the applicant in early March 2012 (the case happened on 23 March 2012);", "zh-HK": "ii)而在第一控方證人的2013年3月4日所錄取的無損自身利益的會面記錄（“無損自身利益的口供”）中，第一控方證人則表示是在2012年3月頭（案發日期為2012年3月23日）認識申請人；" } }, { "doc_id": 71, "seg_id": 48, "translation": { "en": "iii)However, in the video recorded interview on 23 March 2012 (“video recorded interview”), he said that it took place almost one week or one to two weeks before the case and that he could not recall the exact time;", "zh-HK": "iii)但在他於2012年3月23日所錄取的錄影會面記錄（“錄影會面記錄”）中則指是在案發前差不多一星期或一兩個星期前，實際時間不太記得。" } }, { "doc_id": 71, "seg_id": 49, "translation": { "en": "1.2)The defence criticised PW1’s evidence for being inconsistent, aiming at lengthening the time that he knew the applicant in court so as to make his evidence appear to be more reasonable.", "zh-HK": "1.2)辯方批評第一控方證人證供前後有出入，是有意在庭上把認識申請人的時間延長，使其證供看似更合理。" } }, { "doc_id": 71, "seg_id": 50, "translation": { "en": "2.1)Secondly, regarding how many times that the applicant and PW1 had taken part in packaging dangerous drugs before the day in question, PW1 gave different versions, and the details are as follows:", "zh-HK": "2.1)其次，就案發當天前申請人與第一控方證人曾多少次參與包裝毒品的問題上，第一控方證人亦曾給予不同的版本，詳情如下：" } }, { "doc_id": 71, "seg_id": 51, "translation": { "en": "i)In court, PW1 indicated that the day in question was the first time he had ever taken part in packaging drugs;", "zh-HK": "i)在庭上，第一控方證人表示他於案發當天是第一次參與包裝毒品；" } }, { "doc_id": 71, "seg_id": 52, "translation": { "en": "ii)In his non-prejudicial statement, PW1 indicated that he had packaged drugs at his residence before the day in question but could not remember the exact date or the number of times. He also said that he had not received any reward;", "zh-HK": "ii)第一控方證人在無損自身利益的口供中表示他曾於案發當天前在其居所包裝毒品，但記不起確實日期或次數。他亦說沒有收過酬金；" } }, { "doc_id": 71, "seg_id": 53, "translation": { "en": "iii)In the video recorded interview, PW1 said that he had packaged dangerous drugs for the applicant for about 4 or 5 times and that the applicant had delayed in paying the reward owed to him.", "zh-HK": "iii)於錄影會面記錄中，第一控方證人則指他曾替申請人包裝毒品約4-5次，申請人一直拖欠他的報酬。" } }, { "doc_id": 71, "seg_id": 54, "translation": { "en": "2.2)The defence criticised PW1’s evidence for being inconsistent, aiming at shirking his responsibilities.", "zh-HK": "2.2)辯方批評第一控方證人的證供前後矛盾，目的是刻意推卸責任。" } }, { "doc_id": 71, "seg_id": 55, "translation": { "en": "3)PW1 gave different versions as to the reason for which the three of them left PW1’s residence, and the details are as follows:", "zh-HK": "3)就案發當天三人離開第一控方證人居所的原因，第一控方證人亦給予了不同的版本，詳情如下：" } }, { "doc_id": 71, "seg_id": 56, "translation": { "en": "During examination-in-chief in court, PW1 indicated that in the afternoon on the day in question, his mother called back home and so he requested the applicant and Tse to leave;", "zh-HK": "於庭上主問時，第一控方證人表示在案發當天下午，第一控方證人的母親致電回家，因此第一控方證人要求申請人及謝離開；" } }, { "doc_id": 71, "seg_id": 57, "translation": { "en": "Under cross-examination, PW1 agreed that his mother’s return was the only reason that he urged the applicant and Tse to leave;", "zh-HK": "在盤問時，第一控方證人同意，母親回家是他急於要申請人及謝離開的唯一原因；" } }, { "doc_id": 71, "seg_id": 58, "translation": { "en": "In his non-prejudicial statement and video recorded interview, PW1, however, indicated that he requested the applicant and Tse to leave because he had arranged with friend(s) to go out in that afternoon.", "zh-HK": "而於無損自身利益的口供及錄影會面記錄中，第一控方證人則表示當天下午因為約了朋友去街才要求申請人及謝離開。" } }, { "doc_id": 71, "seg_id": 59, "translation": { "en": "PW1 also agreed that he had given different versions under different circumstances.", "zh-HK": "第一控方證人亦同意他在不同的情況下說了不同的版本。" } }, { "doc_id": 71, "seg_id": 60, "translation": { "en": "Mr Lau contended that P Li J, in directing the jury to consider the contradictions in PW1’s evidence and his explanations, had thrice requested that the jury should also consider the parts in the applicant’s evidence which were consistent with PW1’s evidence. The details are as follows:", "zh-HK": "劉大律師指李法官在引導陪審團考慮上述第一控方證人的證供矛盾之處及其解釋時，曾三次要求陪審團應同時考慮申請人的證供當中吻合第一控方證人證供的部份，詳情如下：" } }, { "doc_id": 71, "seg_id": 61, "translation": { "en": "1)Regarding the inconsistency in the timing of getting acquainted with the applicant, P Li J said, in considering the inconsistencies in PW1’s evidence and his explanations, the applicant’s evidence should not be neglected. He said the applicant in his testimony had indicated that he had got acquainted with PW1 one week before the case. The Judge said:", "zh-HK": "1)就何時認識申請人的分歧上，李法官指，在考慮第一控方證人的證供出入之處及其解釋時，不應忽略申請人的證供。李法官指申請人曾作供表示他是在案發前一星期認識第一控方證人。他說：" } }, { "doc_id": 71, "seg_id": 62, "translation": { "en": "“… which seems to be consistent with what PW1 said, namely the acquaintance was made one to two weeks before, or even not until early March. So when you consider this contradiction, all these pieces of evidence should be considered.”", "zh-HK": "「…似乎又吻合第一控方證人所講佢係一、兩個星期之前，或者甚至乎係3月頭先識嗰樣嘢，咁大家考慮呢一點矛盾嘅時候應該考慮晒所有呢啲證供。」" } }, { "doc_id": 71, "seg_id": 63, "translation": { "en": "2)In respect of the inconsistency in how many times the applicant and PW1 had taken part in drug packaging before the day in question, P Li J said:", "zh-HK": "2)就案發當天前申請人與第一控方證人曾多少次參與包裝毒品的分歧上，李法官說：" } }, { "doc_id": 71, "seg_id": 64, "translation": { "en": "“All right, but the accused’s evidence should also be considered. The accused has said the following in the witness box. He said that before the case he had gone [to PW1’s residence] once. He said that on that occasion, he left after playing video games. He said this case was the second time that he went [to PW1’s residence]. Could this support what PW1 has said, ie it was the first time that the three of them packaged drugs there [at PW1’s residence]? It should be noted that it is necessary to look at the whole thing, including the accused’s evidence, before making a decision.”", "zh-HK": "「好喇，不過大家亦都應該考慮埋被告人嘅證供，被告人喺證人台嗰度曾經咁講過嘅，佢話喺案發之前去過[第一控方證人的居所]一次，佢話嗰次淨係打完機就走喇，佢話本案係第二次去[第一控方證人的居所]，呢個會唔會支持到第一控方證人所講，佢哋三個人係第一次喺嗰個[第一控方證人的居所]包裝毒品呢？大家要留意喇，要睇晒整體，包括被告人嘅證供先至決定。」" } }, { "doc_id": 71, "seg_id": 65, "translation": { "en": "3)In respect of the discrepancies in the reason for which PW1 requested the applicant and Tse to leave on the day in question, P Li J said:", "zh-HK": "3)就案發當天下午第一控方證人因何事要求申請人及謝離開的分歧，李法官說：" } }, { "doc_id": 71, "seg_id": 66, "translation": { "en": "“Also, the accused’s evidence should not be overlooked. What did the accused say in his testimony? He said that PW1 woke him up and in fact told him, ‘[My] mother will be back soon, leave at once.’ In such case, this seems to be consistent with what PW1 has said. All right, while you are considering if PW1 was lying or justifying himself, you have to consider all his evidence with contradictions together with the accused’s evidence before making any decision”.", "zh-HK": "「大家亦都應該唔好忽略被告人嘅證據，被告人作供嘅時候佢講過啲咩嘢呢？佢話係第一控方證人拍醒佢，其實話畀佢聽話『阿媽就快返嚟喇，你哋即刻走喇。』咁樣，呢個又似乎吻合第一控方證人嘅講法。好喇，大家喺度考慮究竟第一控方證人係咪講緊大話或者自圓其說嘅時候，要全盤考慮晒佢矛盾嘅證供喇，同埋被告人嘅證供，然後先至去決定」。" } }, { "doc_id": 71, "seg_id": 67, "translation": { "en": "1Mr Lau contended that by doing so, P Li J had contravened the primary principle that the jury should consider the evidence of the prosecution and that of the defence separately, that is to say, the jury should consider the prosecution evidence independently to determine if PW1 was credible or reliable, instead of considering the consistencies and inconsistencies between the evidence of PW1 and that of the applicant at the same time so as to determine the PW1’s credibility. Even if the evidence of PW1 and the applicant are partly consistent, this should not be considered as the facts to resolve the contradictions existing among PW1’s testimony in court, his non-prejudicial statement and the video recorded interview.", "zh-HK": "1劉大律師指李法官此舉違反了陪審團應獨立地考慮控辯雙方各自證供的大原則，即陪審團應獨立考慮控方的證供以判斷第一控方證人是否可信或可靠，而非同時考慮第一控方證人及申請人的證供的吻合處或不吻合處以判斷第一控方證人的可信性。即使第一控方證人的證供與申請人的證供部分吻合，這也不應被視為事實以解決第一控方證人庭上證供與其無損自身利益的口供及錄影會面記錄所存在的矛盾。" } }, { "doc_id": 71, "seg_id": 68, "translation": { "en": "25.2By doing so, P Li J not only shattered the focus of the defence’s criticism on PW1, but his comment in fact also went beyond the proper limit. In the circumstances of the present case, P Li J should have only pointed out to the jury that if they accepted defence’s criticisms on PW1’s evidence for being full of discrepancies and contradictions, they might find PW1’s evidence unreliable, which would affect the credibility and reliability of the prosecution evidence for proving the “knowledge” of the applicant.", "zh-HK": "25.2李法官此舉不但消滅了辯方對第一控方證人批評的焦點，同時他的評論亦超過適當的範圍。以本案的情況，李法官只應向陪審團指出，若他們接納辯方對第一控方證人的證供充滿出入及矛盾的批評，他們就可能覺得第一控方證人的證供不可靠，因而會影響控方用以證明申請人“知情”的證據的可信性和可靠性。" } }, { "doc_id": 71, "seg_id": 69, "translation": { "en": "25.3By doing so, P Li J also gave the impression that he, as the trial judge, expressing his personal opinion and inclination, was directing the jury to accept his views on the facts, which was obviously unfavourable to the applicant and depriving him of having a fair trial.", "zh-HK": "25.3李法官此舉亦使人覺得原審法官正在指示陪審團接納原審法官自己對事實的看法，表達了其個人意見及傾向，而他所表達的看法明顯是對申請人不利的，剝奪了申請人公平審訊的機會。" } }, { "doc_id": 71, "seg_id": 70, "translation": { "en": "With respect, we do not agree with Mr Lau. P Li J had set out in details to the jury the differences among PW1’s testimony in court, the record of interview and the statement given to the police previously. He directed the jury that they were required to consider the facts of the case in its entirety in considering such conflicts. We find such direction correct. The jury may not conclude, only on the basis of PW1’s testimony in court and the statement given previously, that he had given different versions and thus find him an incredible witness. P Li J had rightly explained to the jury that they might also consider the evidence given by the applicant himself to determine if PW1 was a credible witness. In fact, the most essential dispute on this issue is, when P Li J told the jury that they might consider the evidence of the applicant, whether the judge intended to make PW1 less incredible so as to shatter the criticism that the defence had made on him. We do not find that P Li J made such a mistake in his directions. PW1 was a tainted witness. After summing up the evidence of both sides to the jury, P Li J specifically reminded the jury that they should be particularly careful in considering PW1’s evidence because he had already pleaded guilty to trafficking in a dangerous drug. PW1 had also agreed that he testified against the applicant because he could by doing so get additional reduction in sentence, which thus was a motive to exaggerate or shirk the criminality to the applicant or others. Furthermore, PW1 had multiple conviction records, including a number of records of “theft”. In our view, P Li J had sufficiently reminded the jury of the danger of relying on PW1’s testimony. We do not find P Li J has biased towards the prosecution.", "zh-HK": "本庭不同意劉大律師的說法。李法官已經詳細將第一控方申請人在法庭上的證供和他早前給予警方的口供及會面記錄內容不同之處向陪審員詳細列出。他指引陪審團在考慮這些衝突的時候，他們需要考慮案件的整體案情。本庭認為這個指引是正確的。陪審團不可能只是考慮第一控方證人在法庭的證詞及早前所給的供詞而裁定他確實給予不同的版本，繼而裁定他不是一名可信的證人。李法官是正確地向陪審團說明，他們亦可以考慮申請人本人所給的證供來決定第一控方證人是否一名可信的證人。其實，本議題最重要的爭議是當李法官向陪審團說他們可以考慮申請人本人的證供時，他的用意是否是想減低第一控方證人給人一種不可信的印象，從而消滅辯方對第一控方證人的批評。本庭不認為李法官的指引犯上這個錯誤。第一控方證人是一名污點證人。李法官向陪審團引述控辯雙方的證供後，特別提醒陪審團他們應該特別小心考慮第一控方證人的證供，因為他已經認罪，承認販運危險藥物。第一控方證人亦同意他指證申請人是因為可以得到額外的刑期扣減，所以是有動機去誇大或者將罪責推卸給申請人或其他人。另外，第一控方證人是有多次刑事記錄，包括多次「盜竊」罪的記錄。本庭認為李法官已經充分提醒陪審團依賴第一控方證人證供的危險性。本庭不認為李法官有偏幫控方之嫌。" } }, { "doc_id": 71, "seg_id": 71, "translation": { "en": "II.Wrongly applied the applicant’s testimony in court", "zh-HK": "II.錯誤地援引申請人的庭上證供" } }, { "doc_id": 71, "seg_id": 72, "translation": { "en": "Mr Lau suggested that P Li J had applied the applicant’s testimony to resolve the discrepancies in PW1’s evidence in respect of whether the day in question was the first time that PW1 had participated in packaging dangerous drugs. However, he failed to apply the applicant’s evidence in full correctly. It was the applicant’s evidence that in fact before and on the day in question, the applicant had visited PW1’s residence twice in total but the applicant had never participated in drug packaging. Therefore, this part of the applicant’s evidence had absolutely no value for reference or comparison regarding whether PW1 had participated in packaging drugs for the first time on the day in question, and what was more important, it could not support anything said by PW1. By inviting the jury to consider whether this part of the applicant’s evidence could support PW1’s evidence, P Li J not only took things out of context but also made mistakes in the logical sense.", "zh-HK": "劉大律師指李法官有就案發當天第一控方證人是否第一次參與包裝毒品一事，援引了申請人的證供以解決第一控方證人證供的分歧。但是，他沒有全面及正確地援引申請人的證供。申請人的證供實為案發前及案發當天，申請人總共兩次到訪第一控方證人的居所，但申請人從沒有參與包裝毒品，故此，申請人這部分的證供與第一控方證人於案發當天是否第一次參與包裝毒品根本完全沒有參考或比較的價值，更不能支持第一控方證人的任何說法。李法官邀請陪審團考慮申請人這部份的證供是否能支持第一控方證人的證供這做法，不但是斷章取義，同時亦犯了邏輯上的錯誤。" } }, { "doc_id": 71, "seg_id": 73, "translation": { "en": "We agree that the applicant’s evidence on the visit to PW1’s residence may simply be consistent with PW1’s testimony in court but it does not help in respect of the discrepancies among PW1’s testimony in court, the record of interview and the statement given to the police previously. However, P Li J did not tell the jury that the applicant’s evidence could wholly resolve the discrepancies in PW1’s evidence. P Li J only told the jury that they should consider the applicant’s evidence, but they had to consider by themselves if the applicant’s evidence support PW1’s testimony in the sense that the day in question was the first time that they packaged dangerous drugs.", "zh-HK": "本庭同意申請人到訪第一控方證人的家的證供可能只是與第一控方證人在法庭上所給的證供有所吻合，但對於第一控方證人在法庭上的證供及之前給予警察的口供及會面記錄所產生的分歧作用不大，但是李法官並沒有向陪審團說，申請人的證供是可以全盤解決第一控方證人本身供詞上的分歧。李法官只是對陪審團說他們應該考慮申請人的證供，但他們是要自己考慮申請人的證供是否會支持第一控方證人所說當日是他們第一次包裝毒品。" } }, { "doc_id": 71, "seg_id": 74, "translation": { "en": "III.Drastic difference in dealing with the evidence of the applicant and PW1", "zh-HK": "III.處理申請人與第一控方證人的證供的方式大相逕庭" } }, { "doc_id": 71, "seg_id": 75, "translation": { "en": "Mr Lau said that P Li J, in directing the jury to consider the applicant’s evidence, had obviously taken a completely different approach. P Li J merely repeated the applicant’s evidence without suggesting to the jury that PW1’s evidence might support the applicant’s evidence in certain aspects, which was quite different from the way in which PW1’s evidence was dealt with. Such contradictory approaches were unfair to the applicant, and hence P Li J’s summing up as a whole appeared to be not impartial and give the impression of unfairness.", "zh-HK": "劉大律師說當李法官在引導陪審團考慮申請人的證供時，明顯地採取了截然不同的取態，李法官只是重複敘述了申請人的證供，並沒有如處理第一控方證人的證供一樣，向陪審團指出第一控方證人的證供可能在若干環節上支持着申請人的證供。如此相反的處理方法對申請人構成不利，因此李法官的總結講辭整體看來欠持平，予人不公平的感覺。" } }, { "doc_id": 71, "seg_id": 76, "translation": { "en": "We do not agree that P Li J in dealing with the applicant’s evidence gave an impression of unfairness. P Li J recited not only the applicant’s testimony, but also the evidence in support of the applicant’s defence, and in respect of the evidence unfavourable to the applicant, he asked the jury not to jump to a conclusion prematurely and to give the benefit of doubt to the applicant. The following is examples set out by Mr Tam:", "zh-HK": "本庭不同意李法官在處理申請人的證供時給予旁觀者一種不公平的感覺。李法官並不是單單引述申請人的證供，他亦引述支持申請人辯解的證據及就對申請人不利的證據要求陪審團不要過早作出結論及將疑點歸於申請人。以下是譚大律師列出的例子：" } }, { "doc_id": 71, "seg_id": 77, "translation": { "en": "Regarding the applicant’s testimony that he had taken a Youth Employment and Training Programme (“YETP”) course, P Li J asked the jury to consider exhibit D2, ie the YETP certificate.", "zh-HK": "申請人就他參與展翅課程的證供，李法官要求陪審團考慮證物D2，即展翅證書。" } }, { "doc_id": 71, "seg_id": 78, "translation": { "en": "The applicant had two phones on his person and he said Tse also had two phones. P Li J said that merely carrying two phones did not mean anything and not necessarily relate to drug trafficking, and advised not to draw any immature conclusion.", "zh-HK": "申請人身上有兩部電話及他說謝亦同樣有兩部電話，李法官說純粹帶兩部電話不代表甚麼，與販毒未必有關，不應過早作結論。" } }, { "doc_id": 71, "seg_id": 79, "translation": { "en": "Upon asking the jury to consider PW1’s criminal records, P Li J immediately told them that the applicant was of good character and more credible and had a lower propensity to contravene the law.", "zh-HK": "李法官要求陪審團考慮第一控方證人前科後立刻向他們說申請人有良好品格，較可信，犯案機會較低。" } }, { "doc_id": 71, "seg_id": 80, "translation": { "en": "The applicant had traces of “K Chai” on his hands but this cannot prove that there was “K Chai” on each finger. The applicant had no “K Chai” on his fingernail. If it is not sure how the applicant’s hand was contaminated with “K Chai”, for example by packaging dangerous drugs or by wiping rubbish on the table, the benefit of the doubt should be given to him.", "zh-HK": "申請人手有微量「K仔」，但這不證明每一隻手指有「K仔」，而申請人的指甲則沒有「K仔」。若果不肯定「K仔」如何沾上申請人的手上，如包裝毒品或申請人用手掃檯面的垃圾，疑點利益要歸於他。" } }, { "doc_id": 71, "seg_id": 81, "translation": { "en": "PW1 testified that the dangerous drug was taken out from a manila envelope, but no such envelope was retrieved.", "zh-HK": "第一控方證人證供說毒品是從公文袋內拿出來，但沒有找回這公文袋。" } }, { "doc_id": 71, "seg_id": 82, "translation": { "en": "No fingerprint of the applicant was found on the package of the dangerous drug.", "zh-HK": "申請人的指模沒有在毒品的包裝上找到。" } }, { "doc_id": 71, "seg_id": 83, "translation": { "en": "When the applicant was arrested, Tse was holding a plastic box with dangerous drug inside. The video recording of the lift did not show that Tse or the applicant was holding the plastic box when going to PW1’s flat.", "zh-HK": "申請人被捕時，謝拿着內有毒品的膠箱。在升降機的錄影帶中看不到謝和申請人在去第一控方證人的單位時拿着膠箱。" } }, { "doc_id": 71, "seg_id": 84, "translation": { "en": "If the applicant’s testimony is true or may be true, he should be found not guilty. Even if the applicant’s testimony is not accepted, provided it is not sure whether PW1 has told the truth, he should be found not guilty.", "zh-HK": "若果申請人的證供是真或可能是真，便應該判他無罪。即使不接納申請人的證供，若果不肯定第一控方證人是否說真話，就應該判申請人無罪。" } }, { "doc_id": 71, "seg_id": 85, "translation": { "en": "IV.Failed to remind the jury that allegations with no evidential basis should not be considered", "zh-HK": "IV.錯誤地沒有提醒陪審團不應考慮沒有證供基礎的指控" } }, { "doc_id": 71, "seg_id": 86, "translation": { "en": "The prosecution in cross-examining the applicant did not challenge his enrolment in the YEPT course, however, in their closing submission, the prosecution alleged that the applicant’s enrolment in the YEPT course before the case took place was not true and challenged the reasonableness and credibility of the applicant's testimony. This has contravened the principle in Browne v Dunn (1894) 6 R 67, and P Li J in his summing-up had failed to properly remind the jury that they should not take into account the prosecution’s allegation above because this part of the allegation had not been put to the applicant in his cross-examination, thereby depriving the applicant the right to explain, and it was just a repetition of the relevant evidence of the applicant in examination-in-chief and cross-examination.", "zh-HK": "控方在盤問申請人時沒有質疑他報讀展翅課程一事，但控方於結案陳詞指稱申請人於案發前就讀展翅課程一說並非真有其事，質疑申請人證供的合理性及可信性，這違反Browne v. Dunn (1894) 6 R 67的原則，而李法官在總結講辭上並沒有正確地提醒陪審團不應對控方以上的指控作出考慮，因為這部份指控在盤問申請人時未有向他指出，因而剝奪了申請人作出解釋的權利，而只是重複了申請人在主問及盤問下的相關證供。" } }, { "doc_id": 71, "seg_id": 87, "translation": { "en": "We do not agree with this view. It can be seen from the transcript of the trial that counsel for the prosecution did challenge the applicant’s enrolment in the course concerned. The sharp questions in his cross-examination clearly showed that he did not accept what the applicant had said. See: Lo Chun Nam v HKSAR [2001] 1 HKLRD 180. In our view, this ground has no merit.", "zh-HK": "本庭不同意這說法。從審訊謄本可見控方大律師是質疑申請人供讀有關課程，他審問申請人的尖銳性問題明顯表示他並不是接納申請人的聲稱，見：Lo Chun Nam v. HKSAR [2001] 1 HKLRD 180。本庭認為這並不是一個合理的理據。" } }, { "doc_id": 71, "seg_id": 88, "translation": { "en": "V.Empanelment of jury", "zh-HK": "V．揀選陪審員" } }, { "doc_id": 71, "seg_id": 89, "translation": { "en": "This ground of appeal has been abandoned", "zh-HK": "劉大律師放棄依賴這上訴理據。" } }, { "doc_id": 71, "seg_id": 90, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 71, "seg_id": 91, "translation": { "en": "We do not agree that the applicant was deprived of having a fair trial or that his conviction was unsafe or unsatisfactory, and therefore the application is dismissed accordingly.", "zh-HK": "本庭不同意申請人被剝奪公平審訊的機會或者他的定罪是不安全及不穩妥的，故此本庭駁回申請。" } }, { "doc_id": 71, "seg_id": 92, "translation": { "en": "Mr Clement Lau and Ms Carol Shek, instructed by Wong & Co., for the applicant", "zh-HK": "答辯人：由律政司副刑事檢控專員譚耀豪代表。" } }, { "doc_id": 71, "seg_id": 93, "translation": { "en": "Mr William Tam, DDPP of the Department of Justice, for the respondent", "zh-HK": "申請人：由黃律師事務所轉聘劉仲文大律師及石亦芝大律師代表。" } }, { "doc_id": 72, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案書：" } }, { "doc_id": 72, "seg_id": 2, "translation": { "en": "Application for leave to appeal", "zh-HK": "上訴許可申請" } }, { "doc_id": 72, "seg_id": 3, "translation": { "en": "The Applicant was charged with one count of rape. He was convicted and sentenced to 6 years’ imprisonment after trial before Deputy Judge Pang with jury. The Applicant applied for leave to appeal against conviction and sentence. Mr. Lok, SC for the Applicant only made submissions on the application for leave to appeal against conviction. On 24 June 2004, after the hearing of this application, the law firm which represented the Applicant informed this Court in writing that the Applicant had abandoned his application for leave to appeal against sentence. It is therefore unnecessary for us to deal with the application for leave to appeal against sentence.", "zh-HK": "申請人被控一項強姦罪，經高等法院原訟法庭彭偉昌暫委法官及陪審團審訊後，申請人被裁定罪名成立及判監六年。申請人對定罪及刑期提出上訴許可申請。但代表申請人的駱應淦資深大律師只針對定罪的上訴許可申請作出陳詞。2004 年 6 月 24 日，在本申請聆訊後，代表申請人的律師行致函本庭，通知本庭申請人放棄要求減刑的申請。故此本庭不需要處理針對刑期的上訴許可申請。" } }, { "doc_id": 72, "seg_id": 4, "translation": { "en": "Facts", "zh-HK": "案情" } }, { "doc_id": 72, "seg_id": 5, "translation": { "en": "According to the facts, the victim was an Indonesian domestic helper. From 7 January 2002 onwards, she was employed by the Applicant and lived with his family members in the same flat. There were two bedrooms in the flat, one being the bedroom of the Applicant and his wife and the other being that of the victim and the Applicant’s two children. The victim shared the lower bunk of a double bunk bed with the Applicant’s one-year-old son while the Applicant’s five-year-old daughter slept on the upper bunk.", "zh-HK": "案情顯示，受害人是一名印尼籍的家庭傭工。她於 2002 年 1 月 7 日起受聘於申請人及與其家人居住在同一單位內。該單位內有兩個房間。其中一個房間是申請人和他的妻子的睡房，另一個房間是受害人及申請人的一對子女的睡房。受害人和申請人的一歲大兒子睡在一張雙格床的下格，而申請人的五歲女兒則睡在該雙格床的上格。" } }, { "doc_id": 72, "seg_id": 6, "translation": { "en": "At about 7:00 a.m. on 24 August 2002, the Applicant entered the victim’s room and forcibly had sexual intercourse with her. The victim resisted, but in vain. Only when the Applicant heard some sound coming from the upper bunk of the double bunk bed did he stop the intercourse and left the room. After the incident, the victim saw bloodstain at her private parts and on the bed sheet. At about 1:00 pm that day, the victim phoned an elder sister of hers who was working in Hong Kong and told her that she had been raped by the Applicant. The victim then called the police. She said she had no sex experience whatsoever prior to the above incident.", "zh-HK": "2002 年 8 月 24 日早上約七時，申請人走進受害人的房間，強行和她進行性交，受害人反抗不遂，後來申請人只是因為聽到有聲音從雙格床的上格傳出才終止性行為及離開房間。事後，受害人發現下體及床單有血漬。當日下午一時左右，受害人打電話給在香港工作的一位姊姊，並告訴姊姊她被申請人強姦。受害人接着報警。受害人說她在這次事件之前沒有任何性經驗。" } }, { "doc_id": 72, "seg_id": 7, "translation": { "en": "The forensic pathologist said he only found signs of fresh lacerations on the victim’s hymen and that he did not find any old laceration thereon. He also pointed out that most females would sustain hymenal lacerations after having sexual intercourse for the first time, but that if the victim in this case had had sexual intercourse with the same male for ten odd times, there should not be any new laceration on her hymen or any further bleeding arising from rupture of the hymen.", "zh-HK": "法醫官指出，他只發現受害人的處女膜上有新的撕裂痕跡，但沒有舊的裂痕。法醫官又指，大部分女性在進行了第一次性交後都會有處女膜撕裂的現象，但如果本案的受害人曾經和同一名男子發生過十多次的性交，她的處女膜是不應該再有新的裂痕，亦不會再發生因處女膜破裂而流血的情況。" } }, { "doc_id": 72, "seg_id": 8, "translation": { "en": "The Applicant elected to give evidence. He said that he did have sexual intercourse with the victim that morning but claimed that the victim did so voluntarily. He further said he and the victim had already had sex before this incident. They had sex for the first time in late February 2002, and in the following six months, they had sex for more than ten times. The Applicant said he would give money to the victim after each intercourse, which he regarded as a transaction, but he did not give her money on this particular occasion.", "zh-HK": "申請人選擇作供，他說他在當天早上曾和受害人性交，但他指這是在受害人自願的情況下進行的。在這次事件之前，他和受害人已有性關係。第一次和受害人發生性關係是在 2002 年 2 月底，之後的六個月內他和受害人共有超過 10 次性交。申請人指他在事後會付錢給受害人以當為交易，但這次就沒有給她金錢。" } }, { "doc_id": 72, "seg_id": 9, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 72, "seg_id": 10, "translation": { "en": "Mr. Lok, SC advances two grounds of appeal on behalf of the Applicant. The first ground is directed at the burden of proof and the second ground concerns the direction on lies given by Judge Pang.", "zh-HK": "駱大律師提出兩項上訴理由。第一點是涉及舉證的責任。第二點是涉及彭法官所作出的謊言指引。" } }, { "doc_id": 72, "seg_id": 11, "translation": { "en": "Burden of proof", "zh-HK": "舉證責任" } }, { "doc_id": 72, "seg_id": 12, "translation": { "en": "The Hong Kong Judicial Studies Board (“Studies Board”) has provided judges with specimen jury directions (“specimen directions”) for use in criminal trials in the Court of First Instance. The specimen directions, which aim to assist judges in giving proper guidance to the jury, contain directions that judges usually give, for example, the burden and standard of proof, how to approach the evidence, rights of the defendants and elements of certain offences. Paragraph 2.1 of the specimen directions states that, where the judge has referred to the grounds of defence in the directions to jury, the judge should remind the jury that the defendant has no duty to establish the truth of those grounds and that if the account given by the defendant is true, then the jury must acquit him, but “if that account may be true”, then the jury “must also acquit him”.", "zh-HK": "香港司法人員培訓委員會（‘培訓委員會’）就原訟法庭刑事審訊提供陪審團指引樣本（‘指引樣本’）給法官。指引樣本的目的是協助法官對陪審團作出適當的引導。指引樣本的內容是提供一般法官經常要作出的引導，例如：舉證責任與舉證標準、如何處理證據、被告人的權利及某些罪行的犯罪要素等等。該指引的 2.1 段指出，若法官在引導陪審團時曾經提及答辯人的答辯理由，法官就需要提醒陪審團被告人沒有責任去證實這些答辯理由及若被告人所說的是真實的話，陪審團必須判他無罪；然而只要被告人〝所說的有可能是真實的話〞，他們〝也是必須判他無罪的〞。" } }, { "doc_id": 72, "seg_id": 13, "translation": { "en": "As Mr. Lok, SC has pointed out, Judge Pang had indeed not given the aforesaid directions in this case. Therefore, we have to consider whether the failure to give the aforesaid directions according to the specimen directions was such as to render the conviction unsatisfactory or unsafe.", "zh-HK": "駱大律師指彭法官並沒有在本案作出上文引述的指引。彭法官的確沒有作出該指引，故此本庭需要考慮彭法官沒有根據指引樣本作出該指引會否影響定罪的穩妥或安全性。" } }, { "doc_id": 72, "seg_id": 14, "translation": { "en": "Regarding the burden of proof, Judge Pang directed the jury in the following terms:", "zh-HK": "在本案，彭法官就舉證責任曾向陪審團作出以下的指引，有關的指引節錄如下：" } }, { "doc_id": 72, "seg_id": 15, "translation": { "en": "I have to raise another extremely important issue here, which is how you should arrive at a verdict. First, please bear in mind that under the current system, a defendant is innocent unless and until he is found guilty, and the burden of proving guilt of the defendant falls entirely on the prosecution. Having brought a charge, the prosecution must bear the burden of establishing the charge. It is as simple as that. In other words, a defendant is not guilty just because he is sitting in the dock and being kept under guard.", "zh-HK": "喺呢度，我又要提出另一個非常重要嘅問題，就係你哋點去衡量呢個裁決。首先，請你哋記住，喺現行制度之下，被告一日未定罪，佢就一日無罪，而證明被告有罪嘅責任，全在控方。控方既然提出起訴，就有責任去證明有關嘅控罪，就係咁簡單。換句話講，被告雖然坐喺犯人欄裡面，有人看管，但係絕不表示佢咁就有罪。" } }, { "doc_id": 72, "seg_id": 16, "translation": { "en": "What is more, the defendant bears no burden whatsoever to prove his innocence and, therefore, is under no obligation to give evidence or call any witness. Even if he does both – and the defendant in this case has done both, has he not? – he has no duty to prove what they say is true. So how should it be? It is rather for the prosecution to prove that his evidence is untrue. To prove that the defendant is guilty, the prosecution still has to convince you to accept the evidence adduced by it, and also explain what other evidence is favourable to the prosecution and why. All in all, it still boils down to this: the burden of proving the defendant’s guilt rests with the prosecution. This is the first point.", "zh-HK": "唔單止咁喎，被告係冇任何責任去證明自己嘅清白嘅，所以亦冇責任作供，或者傳召證人。就算佢兩樣都做齊 —— 事實上佢有吖，係咪？—— 佢都冇責任去證明佢哋嘅講法係真嘅，而係點呢？而係由控方去證明佢係假嘅。要證明被告有罪，控方仍然要說服你哋，接受控方提出嘅證據，同埋點解，有啲咩其他嘅證據對控方有利，講到底，仍然都係嗰句說話，證明被告有罪嘅責任喺控方，呢個係第一點。" } }, { "doc_id": 72, "seg_id": 17, "translation": { "en": "Now let me talk about the second point. Given the burden of proof is on the prosecution, to what extent and up to what standard must it prove in order to establish the defendant’s guilt? The answer is: it has to prove beyond reasonable doubt. This means the prosecution has to prove to the point where you are sure that the defendant did commit the offence in question. These two statements are complementary. I have mentioned that before, have I not? In other words, only when you have considered all the evidence and believe that there is no reasonable doubt, or to put it in another way, only if you are sure that the defendant committed the offence, can you return a verdict of guilty.", "zh-HK": "再講第二點，舉證嘅責任既然喺控方，咁佢哋要舉證到咩程度，咩標準，先能夠證明被告有罪呢？答案係，直到冇合理疑點為止，亦即係話，要你哋肯定被告曾經干犯有關嘅控罪為止。呢兩個講法係相通嘅，我之前已經提過喇，係咪？換言之，只有喺你哋考慮過所有嘅證據，認為冇合理疑點，又或者講，肯定被告曾經干犯有關嘅控罪嘅情況之下，你哋先能夠裁定佢罪名成立。" } }, { "doc_id": 72, "seg_id": 18, "translation": { "en": "On the contrary, if, viewing the evidence as a whole, you consider there is reasonable doubt, or if you are not sure whether the defendant committed the offence, you must return a verdict of not guilty. This is the meaning behind the saying ‘the benefit of doubt shall be given to the defendant’ that you often hear.", "zh-HK": "相反，如果你哋認為證據嘅整體，有合理疑點，又或者唔肯定被告曾經干犯有關嘅控罪，咁你哋就必須裁定佢罪名不成立。呢個亦都係你哋成日聽到咩『疑點嘅利益要歸於被告』嗰句說話背後嘅意思」。" } }, { "doc_id": 72, "seg_id": 19, "translation": { "en": "Judge Pang also said:", "zh-HK": "彭法官亦說 ：" } }, { "doc_id": 72, "seg_id": 20, "translation": { "en": "On the other hand, given the prosecution bears the burden of proof, you cannot simply jump to a verdict of guilty even if you do not believe the defendant or his witnesses at all. It is because in the end, it still depends on whether the evidence adduced by the prosecution and such other evidence that you may accept as true is sufficient so that you are sure the defendant is guilty.", "zh-HK": "反過嚟，舉證嘅責任既然喺控方，咁你哋就算完全唔信被告同佢嘅證人，亦唔能夠就咁定被告嘅罪，因為結果仍然要視乎控方所提舉嘅證據，同其他你接受為真實嘅證據，係咪足以令你哋肯定佢有罪。」" } }, { "doc_id": 72, "seg_id": 21, "translation": { "en": "All the above directions were given in accordance with the specimen directions and fully explained the prosecution’s burden of proof and the defendant’s legal rights.", "zh-HK": "上述的指引都是根據指引樣本作出的，這些指引亦充分闡釋控方的舉證責任及被告人的法律權利。" } }, { "doc_id": 72, "seg_id": 22, "translation": { "en": "Judge Pang said that if the jury considered that the evidence, viewed as a whole, raised a reasonable doubt or if the jury could not be sure whether the Applicant had committed the offence in question, then they were bound to find the Applicant not guilty. In our view, if a person with legal knowledge is not sure whether the Applicant committed the offence in question, this certainly includes the situation in which he considers the account given by the Applicant true or possibly true. However, for a jury unarmed with legal knowledge, if they think that the Applicant’s defence may be true, does this necessarily mean they will then be unsure whether the Applicant committed the offence in question?", "zh-HK": "彭法官說，如果陪審團認為整體的證據，有合理疑點，又或者陪審團不能肯定申請人曾經干犯有關罪名，這樣他們就必須裁定申請人的罪名不成立。本庭認為，對於有法律知識的人來說，若他未能肯定申請人曾經干犯有關的控罪，這肯定是包括他認為申請人所說的話是真實的，或者是有可能是真實的，但對於沒有法律知識的陪審團來說，若他們認為申請人的答辯理由有可能是真實的，這是否會必然令他們不能肯定申請人曾經干犯有關的控罪呢？" } }, { "doc_id": 72, "seg_id": 23, "translation": { "en": "Had Judge Pang only given directions on the burden of proof without also giving directions on other aspects, we would have reservations over the above question. First, if the evidence in the case had totally come from the prosecution, the directions given by Judge Pang would have been adequate, because the jury had been directed that, if they thought the prosecution evidence raised a reasonable doubt or if they were not sure whether the Applicant had committed the offence in question, then they had to return a verdict of not guilty. If a defendant elects to give evidence and the jury consider that the account given by the defendant is true, then as a matter of logic they should have no difficulty in finding the defendant not guilty. If, however, the jury think that the defence may be true but are not absolutely sure that it is true, what should they do? Our experience tells us that, far from being an academic issue, this is a real problem which will very likely arise. If the judge has not given other directions to the jury or told them in explicit terms that the defendant should be acquitted in such a situation, we very much doubt whether the jury will necessarily say that in such a case they are not sure whether the defendant committed the offence in question and therefore the defendant has to be acquitted. We do not rule out the possibility that a jury with no legal knowledge may be troubled where “the account given by the defendant may be true”. At the very least, when they are confronted with this issue, they will very probably fail to appreciate its importance and, as a result, fail to acquit the defendant promptly.", "zh-HK": "倘若彭法官只單單作出舉證責任的法律指引，而沒有作出其他指引的話，本庭會對上述問題有所保留。首先，若案件的證據完全來自控方，彭法官的指引是足夠的，因為如果陪審團認為根據控方提供的證供有合理疑點，又或者不肯定申請人干犯有關控罪，他們已經被指導必須裁定申請人罪名不成立。若果被告人選擇自辯，而陪審團認為被告人所說的是真實的，從常理來說他們是應該沒有困難裁定被告人無罪，但陪審團如何處理他們認為答辯理由是有可能是真實的，但卻不能完全肯定是真實呢？經驗告訴我們這情況不是一個學術的議題，而是極有可能發生實際的事，若法官沒有作出其他指引，亦沒有直接了當地告訴陪審團他們在這情況下應該裁定被告人無罪，本庭不認為陪審團是會必然說，由於這樣他們是不肯定被告人干犯有關控罪因而裁定被告人罪名不成立。本庭不排除‘被告人所說可能是真實的’對沒有法律知識的陪審團來說是會產生困擾的，從最基本的角度來看，他們在面對這議題時是極有可能意識不到這一點的重要性而及時裁定被告人無罪。" } }, { "doc_id": 72, "seg_id": 24, "translation": { "en": "A verdict of guilty indicates that the jury are satisfied that the case against the defendant is proved beyond reasonable doubt. However, before returning a verdict of guilty, in all likelihood they have to consider whether the defendant’s evidence may be true. The court cannot assume from a verdict of guilty that the jury have not found it necessary to consider whether the defendant’s evidence may be true. To make such an assumption is to put the cart before the horse. The relevant principle, which is but a crystallisation of past experiences, is to explain, positively and clearly and in simple language, to a jury with no legal knowledge how the rules on the burden of proof are applied in practice. It is in our view possible for a set of directions that do not follow the relevant principle to be incomplete and to render a verdict unsafe and unsatisfactory. As Stuart-Moore VP in HKSAR v Sze Kwan-lung CACC 92/2002 pointed out, although many of the specimen directions given to a jury will need to be adapted to the circumstances of the case being tried, the directions on the burden and standard of proof are, in view of their obvious importance, intended to be extremely straightforward and easy to understand and do not usually require any adaptation or further amplification.", "zh-HK": "陪審團裁定一名被告人罪名成立，這是表示他們是認為案情是無合理疑點，但達到這步驟之前，他們是極有可能需要考慮被告人的證供是否可能是真實的，法庭不可以單靠陪審團定罪的裁決來否定他們不需要考慮被告人的證供是否可能是真實的，否則便是本末倒置的做法。有關的原則是一項累積前人經驗，採用簡單的言語向沒有法律知識的陪審團正面地清楚說明舉證責任實際運用的原則，本庭不排除一份欠缺有關原則的指引是可能會令指引不完整的及會令裁決不穩妥及不安全的。正如司徒冕副庭長在香港特別行政區訴施君龍（譯音）CACC 92/2003 一案所說，雖然指引樣本內的很多指引是需要因應案情來作出修改後才可使用，但基於舉證責任及舉證標準之重要性，所以有關這方面的指引是極之直接及容易明白的，它們通常是不需要更改或加以補充的。" } }, { "doc_id": 72, "seg_id": 25, "translation": { "en": "The Court of Appeal (Hon Ma CJHC, Stuart-Moore VP and Stock JA) also pointed out in HKSAR v Wong Wai-man (No.2) [2003] 4 HKC 517 that the above specimen directions were usually used and appropriate. In that case, the jury asked the trial judge whether they could disregard the evidence given by the police or the appellant if they had doubts about that evidence. In response, they were directed that, if they were not sure that the evidence from either the prosecution or the defence was true, they could disregard it. The Court of Appeal held that this direction was erroneous because if the jury took the view that the account given by the defence was true or might be true, they should, instead of disregarding that evidence, take it into account in deciding whether the prosecution had discharged the burden of proof.", "zh-HK": "上訴法庭（高等法院首席法官馬道立，上訴庭副庭長司徒冕，上訴庭法官司徒敬）在香港特別行政區訴黃偉民（譯音）[2003] （2 號）4 HKC 517 一案亦指出上述的指引樣本是通常使用及適當的指引。在該案，陪審團詢問原審法官如果他們對警察或上訴人的證供存疑，他們是不是可以不理會這些證供。法官給他們的指引是，如果他們不肯定控方或辯方的證供是真實的，他們便不需理會那些證供。上訴法庭認為有關的指引是錯誤的，因為若陪審團認為辯方所說的話是真實的或者是有可能是真實的，他們是有需要藉此考慮控方是否舉證成功，而不是不需理會這些證供。" } }, { "doc_id": 72, "seg_id": 26, "translation": { "en": "Although the issues involved in that case were different from those of the present case, the crucial point is that the relevant direction is usually used and is an appropriate one. In R v Liberato (1985) 159 CLR 507, Brennan J of the High Court of Australia also said:", "zh-HK": "雖然該案的議題和本案不同，但重點是有關的指引是一項通常使用及適當的指引。澳洲高等法院 Brennan 法官在英女皇訴 Liberato (1985) 159 CLR 507 一案亦說：" } }, { "doc_id": 72, "seg_id": 27, "translation": { "en": "When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence.", "zh-HK": "「如果案件結果的關鍵在於控辯雙方証人証言之間互相矛盾，那麼法官通常會請陪審團考慮這個問題：“究竟相信哪一方？” 但法官必須作適當的指引，確保假如這個問題（這個無論如何陪審團肯定會向自己提出的問題）的答案對辯方不利的話，陪審團也不會就此下結論，斷定控方已經毫無合理疑點地証明了其負有舉証責任的爭議點。法官必須告訴陪審團，即使他們認為控方的証據比較可取，也不應該就此裁定被告罪名成立，除非他們毫無疑點地信納該証據屬實。" } }, { "doc_id": 72, "seg_id": 28, "translation": { "en": "The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.", "zh-HK": "法官必須告訴陪審團，即使他們不完全相信辯方的証據，在某爭議點上，只要辯方的証據引起了合理疑點，他們就不能就該爭議點作出與辯方証據相悖的判斷。」" } }, { "doc_id": 72, "seg_id": 29, "translation": { "en": "The purpose of giving these directions to the jury at great length is to ensure that they practically and correctly apply these principles. We believe that the relevant specimen directions will fully serve this purpose. We do not agree that using those directions is merely adding embroidery to silk.", "zh-HK": "法官不厭其詳地向陪審團作出這些指引，其目的是為了確保陪審團能夠實際地及正確地運用這些原則。本庭認為有關的指引樣本是會全面地發揮這個目的。本庭不認同採用這指引只是錦上添花的做法。" } }, { "doc_id": 72, "seg_id": 30, "translation": { "en": "Nevertheless, it must be stressed that the court cannot deal with the question of “whether the account given by the defendant may be true” in isolation and overlook the facts of the case and the entire set of directions. In the present case, the entire set of directions given by Judge Pang has to be looked at when considering whether the verdict was rendered unsafe by the absence of a relevant direction.", "zh-HK": "但本庭需要強調一點就是在處理‘被告人所說的是否可能是真實’的議題時，法庭不可以單獨處理這議題而忽略了案情及整份指引。本庭需要以彭法官作出的整份指引來考慮會否因欠缺一個相關的指引而令到該裁決變得不穩妥。" } }, { "doc_id": 72, "seg_id": 31, "translation": { "en": "Judge Pang did not only give legal directions on the burden of proof, but also applied the legal principles to the issue in dispute.", "zh-HK": "在本案，彭法官不單只向陪審團提出舉證責任的法律指引，他還將法律原則引申到具爭議性的議題中。" } }, { "doc_id": 72, "seg_id": 32, "translation": { "en": "The evidence for the prosecution and that for the defence in this case was diametrically opposed. The victim said that she did not consent to sexual intercourse, whereas the Applicant claimed that she did consent to it and that they had had sexual intercourse on many occasions in the few months prior to the incident but just that he did not give her money on this occasion. Towards the end of his summing up, Judge Pang had this to say:", "zh-HK": "本案雙方的證供互相衝突，受害人說她不同意性交，但申請人卻說她是同意的，而案發前數月內他們已有多次性交，只是這次他沒有給她金錢。彭法官在他作出的指引的末段這樣說：" } }, { "doc_id": 72, "seg_id": 33, "translation": { "en": "Finally, I would like to say that an accusation of rape can easily be made but cannot be easily refuted, especially when sexual intercourse has actually taken place. In the present case, apart from the evidence of the victim herself, there is in fact no evidence to show that the defendant had sexual intercourse with her against her will. Even if you believe that she had no sex experience prior to the occasion in question, this in itself is not sufficient to prove that she was unwilling to have sexual intercourse, is it? Therefore, before you convict the defendant, you have to be very careful. In any event, please bear in mind that you can convict the defendant if and only if you are sure that the victim did not consent to sexual intercourse at the material time and that the defendant knew that the victim did not consent or was reckless as to whether she consented. Otherwise, you must acquit the defendant. (Emphasis supplied)", "zh-HK": "最後，我想講嘅係，強姦嘅指控好易提出嘅，不過反駁就難，尤其係真係有過性行為嘅情況之下。事實上，本案除咗事主本身嘅證供之外，就冇證據證明佢係喺唔自願嘅情況之下同被告性交喇。就算你哋相信佢之前係冇性經驗嘅，呢次係第一次，呢點本身都唔足以證明佢係不願意嘅，係咪？所以如果你哋要定被告嘅罪嘅話，就要非常之小心。無論如何，請你哋記住，你哋一定要肯定事主當時係唔同意性交嘅，而又肯定被告知道事主唔同意性交，又或者罔顧佢同唔同意，先可以裁定佢罪名成立。否則，就一定要裁定被告罪名不成立。」（劃線為本庭後加）" } }, { "doc_id": 72, "seg_id": 34, "translation": { "en": "The underlined sentences in the above direction clearly conveyed the message that, if the jury could not be sure that the victim did not consent to sexual intercourse at the material time, they must return a verdict of not guilty. In directing the jury, Judge Pang did not simply set out dull and dry legal principles, but also explicitly illustrated the application of the principles relating to proof. In these circumstances, we believe that, had the jury concluded that the Applicant’s evidence that the victim consented to sexual intercourse might be true, they would have clearly understood that such a conclusion meant that they could not be sure that the victim did not consent to sexual intercourse at the material time and, as a consequence, would have found the Applicant not guilty. It follows that, even though Judge Pang had not given the relevant direction, the verdict of this case was still safe and satisfactory.", "zh-HK": "這指引的劃線部分清楚顯示了一個訊息：倘若陪審團不能肯定受害人當時是不同意性交的話，他們一定要裁定申請人罪名不成立。彭法官並不是單單向陪審團作出一些枯燥乏味的法律原則指引，而是直接了當運用這些舉證原則作為實例。在這情況下，如果本案的陪審團作出的結論是申請人說受害人同意性交的證供可能是真實的，本庭相信他們會清楚了解這是表示他們不能肯定受害人當時是不同意性交，因而裁定申請人無罪，故此就算彭法官沒有作出有關的指引，本案的裁決仍是穩妥的。" } }, { "doc_id": 72, "seg_id": 35, "translation": { "en": "In our view, there is nothing in the first ground of appeal.", "zh-HK": "本庭認為第一個上訴理由不是一個充分的上訴理由。" } }, { "doc_id": 72, "seg_id": 36, "translation": { "en": "Direction on lies", "zh-HK": "謊言的指引" } }, { "doc_id": 72, "seg_id": 37, "translation": { "en": "The second ground of appeal is directed at the presence of a “lies” direction. In his summing up, Judge Pang said:", "zh-HK": "第二個上訴理由是彭法官在指引陪審團時曾作出了謊言指引。他說：" } }, { "doc_id": 72, "seg_id": 38, "translation": { "en": "In fact, as what the defence counsel said in his final submission, accused persons may not be telling the truth, but this is not necessarily because they are guilty. They may just want to bolster a true defence, or they may feel that it is not so easy to have the true story believed. So, what will they do? To borrow popular language, they will ‘exaggerate a bit’. Or the true story may involve conduct which was disgraceful but fell short of bring criminal. Or the accused persons were in panic at that moment and did not know what to do. There are all sorts of reasons. Hence, if you really think that something said by the defendant is unbelievable and that he was lying, but that he may have lied for one of the reasons I have just mentioned which have nothing to do with his guilt, then the only thing you should do is to disregard the part consisting of the lies and focus on all the other evidence which you accept as true, including that part of evidence from the defendant which you accept to be true. Here I have to make this clear: I am not saying the defendant has lied. What I mean is that, even if you firmly believe he has told a lie, you should not and cannot convict him simply because of that.", "zh-HK": "其實，正如辯方律師喺最後陳詞咁講，被起訴嘅人，係可能唔講真說話嘅，但係就唔一定因為有罪個喎。有時佢哋只係為咗要加強一個真實嘅辯護，又或者覺得個實情唔係咁易令人相信，所以點呀？講得俗啲，即係作大少少咁喇。又或者個實情涉及一啲唔係咁光彩，但係又唔至於犯罪嘅行為。又或者係一時驚惶失惜，唔知點，林林總總嘅。所以，假如你哋真喺唔相信被告講過嘅一啲咩嘢，認為佢講大話，但係就可能係為咗我剛才提到嗰啲同有罪無關嘅原因，咁你哋唯一應該做嘅，就係去摒棄佢講大話嗰部分，而集中考慮任何其他你哋接納為真嘅證據，包括從被告而嚟而你哋又認為係真嘅嗰部分嘅證據。呢度，我要澄清，我唔係話被告講過啲咩大話。我嘅意思係，就算你哋認定佢講過啲咩大話，亦都唔應該，同埋唔能夠，就咁去定佢個罪。」" } }, { "doc_id": 72, "seg_id": 39, "translation": { "en": "Mr. Lok, SC contends that it was not necessary to give any “lies” direction. He points out that the prosecution case and the defence case were in direct conflict. The victim alleged that she had been raped by the Applicant, but the Applicant said that she had consented to sexual intercourse with him. In that case, if the jury accepted the victim’s evidence as true, they would necessarily be also finding that the Applicant had lied. Therefore, the trial judge did not have to give any “lies” direction at all.", "zh-HK": "駱大律師認為彭法官不需要作出謊言指引。他指本案控辯雙方的案情是對立的。受害人指稱她被申請人強姦，而申請人則說是在受害人同意下和她性交，在這情況下，若陪審團認同受害人的證供為事實，就必同時認為申請人在說謊，所以原審法官根本無須作出任何謊言指引。" } }, { "doc_id": 72, "seg_id": 40, "translation": { "en": "In the Court of Final Appeal case of Yuen Kwai-choi v HKSAR [2003] 2 HKC 337, Hon Chan PJ said that:", "zh-HK": "終審法院常任法官陳兆愷在袁貴才（譯音）訴香港特別行政區 [2003] 2 HKC 337 一案指出:" } }, { "doc_id": 72, "seg_id": 41, "translation": { "en": "Where there is no need for such a ‘Lucas’ direction (a direction on lies), as in the normal case where there is a straight conflict of evidence, it will add complexity and do more harm than good. In the great majority of cases where the prosecution contends that an accused is telling lies in the witness box, a direction on lies is inappropriate (R v Barnett [2002] 2 Cr App R 168, 173). In cases where the rejection of any explanation given by an accused almost necessarily leaves the jury with no choice but to convict as a matter of logic, or where the jury are asked to decide on the truth of what an accused said on a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient.", "zh-HK": "當控辯雙方的證據有直接衝突時，一般情況下實無需作出 “Lucas”（謊言）指引，否則只會令事件更為複雜及害多於利。在大部份案件當控方指被告人在證人臺作供時說謊，“謊言指引”是不適當的（見 R v Barnett [2002] 2 Cr. App. R 168,173）。如在案件中，否定被告人的解釋，必然會導致定罪的決定或當陪審團要決定應否接納被告人就案件的重點所作的解釋時，一般情況下採納就舉證責任和舉證標準的慣常指引實已足夠。」" } }, { "doc_id": 72, "seg_id": 42, "translation": { "en": "The above principle was adopted by this Court (Hon Cheung, Yeung and Yuen JJA) in HKSAR v Tung Wing-so (transliteration) CACC 201/2003.", "zh-HK": "本庭（上訴法庭法官張澤祐、楊振權及袁家寧）在香港特別行政區訴董穎甦 CACC 201/2003 亦採用上述原則。" } }, { "doc_id": 72, "seg_id": 43, "translation": { "en": "The Respondent in this case has conceded that it was not necessary to give any “lies” direction. This notwithstanding, we take the view that the direction in question was given in light of the Applicant’s evidence that he had had sex with the victim for ten odd times before and of the evidence given by the forensic pathologist. In giving the direction, Judge Pang intended to remind the jury that they should not convict the Applicant just because they believed he had lied and that they should consider other evidence of the case to decide whether the Applicant was guilty.", "zh-HK": "雖然答辯人認同彭法官無須就本案作出謊言指引，但本庭認為彭法官的指引是針對申請人說之前與受害人有十多次的性接觸，及有關法醫官的證供而作出的。他的目的是要提醒陪審團不要因為他們認定申請人說謊而判他罪名成立，而是要考慮案件的其他證據去決定申請人是否罪名成名。" } }, { "doc_id": 72, "seg_id": 44, "translation": { "en": "Even though there had been no necessity for a “lies” direction, it does not follow that the direction given by Judge Pang would have confused the jury or rendered the verdict unsafe and unsatisfactory. The Applicant’s second ground of appeal is accordingly rejected.", "zh-HK": "就算彭法官不需要作出上述的謊言指引，但這也不表示這指引會混淆陪審團或令他們的裁決不穩妥。本庭不接納這上訴理由。" } }, { "doc_id": 72, "seg_id": 45, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 72, "seg_id": 46, "translation": { "en": "The application for leave to appeal is dismissed.", "zh-HK": "本庭拒絕今次上訴許可申請。" } }, { "doc_id": 72, "seg_id": 47, "translation": { "en": "Mr. Cheung Wai Sun, Deputy Principal Government Counsel and Ms. Lau Siu Yee, Senior Government Counsel, for the Respondent.", "zh-HK": "答辯人：由律政司張維新副首席政府律師及劉少儀高級政府律師代表。" } }, { "doc_id": 72, "seg_id": 48, "translation": { "en": "Mr. Lawrence Lok, SC and Ms. Gekko Lan, instructed by Li, Wong & Lam, for the Applicant.", "zh-HK": "申請人：由李黃林律師行轉聘駱應淦資深大律師及藍雪溋大律師代表。" } }, { "doc_id": 73, "seg_id": 1, "translation": { "en": "Hon Yeung JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 73, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 73, "seg_id": 3, "translation": { "en": "There had been a number of burglaries and house robberies in the Shatin and Sai Kung areas from January 2004 to May 2008. A number of culprits entered various private domestic premises in the early hours of the morning to steal or to rob.", "zh-HK": "2004年1月至2008年5月期間，新界沙田及西貢地區發生多宗入屋犯法及入屋搶劫罪。多名賊人在凌晨時份，進入多個私人居所盜取或搶劫財物。" } }, { "doc_id": 73, "seg_id": 4, "translation": { "en": "On 6 May 2008, four illegal immigrants, including the two applicants Wong Cheung and Chau Kei, and Tang Kwan and Wong Tak-chun were intercepted and arrested by police officers in Shatin. The police officers found that they were in possession of a large quantity of valuable property obtained from a burglary case. Wong Cheung admitted to the police officer that he had committed a number of robberies and burglaries with the other people. Subsequently, victims of the various robberies identified Wong Cheung and Chau Kei for having taken part in robbing them.", "zh-HK": "2008年5月6日，四名非法入境者，包括兩名申請人王祥、鄒旗和鄧軍及王德春在沙田遭警員截查及拘捕。警員發現他們管有在一宗入屋犯法罪中取得的大量貴重財物。王祥向警員承認曾和他人干犯多宗搶劫及入屋犯法罪。其後多宗搶劫案的受害人認出王祥和鄒旗有份參與搶劫他們。" } }, { "doc_id": 73, "seg_id": 5, "translation": { "en": "On 4 May 2009, Wong Cheung (the 1st Defendant) and Chau Kei (the 3rd Defendant) pleaded guilty to a number of charges before Barnes J in the Court of First Instance of the High Court. They were sentenced to 19 years and 17 years 8 months respectively. Both of them were discontented with the sentences. They sought leave to appeal against sentence. After hearing, we allowed their applications and, treating the applications as the appeals proper, allowed their appeals against sentence and reduced their overall sentences to one of 12 years. The following are the reasons for judgment.", "zh-HK": "2009年5月4日，王祥（第一被告人）及鄒旗（第三被告人）在高等法院原訟法庭法官張慧玲席前承認多項控罪後，分別被判入獄19年及17年8個月。他們都不服判刑，故申請要求獲准就判刑上訴。經審訊後，本庭批准他們申請並視其申請為正式上訴。本庭判他們的減刑上訴得直並將他們的總刑期都減至12年。以下是本庭的裁決理由。" } }, { "doc_id": 73, "seg_id": 6, "translation": { "en": "Charges and facts of the case", "zh-HK": "控罪及案情" } }, { "doc_id": 73, "seg_id": 7, "translation": { "en": "Wong Cheung and Chau Kei admitted that they had committed the robberies in the 6th, 7th and 8th charges with the other people. Wong Cheung also admitted that he had committed the robberies in the 9th and the 11th charges with the other people, and the burglaries in the 1st and 12th charges. On the other hand, Chau Kei admitted that he had committed the robberies in the 4th and 10th charges with the other people, the theft in the 5th charge and the handling of stolen goods in the 12th (sic) charge.", "zh-HK": "王祥、鄒旗承認一起和他人干犯第6、7、8項搶劫罪。王祥亦承認和他人干犯了第9、11項搶劫罪，及第1、12項入屋犯法罪。鄒旗則承認和他人干犯了第4、10項搶劫罪，另加第5項盜竊罪及第12項處理贓物罪。" } }, { "doc_id": 73, "seg_id": 8, "translation": { "en": "We summarize the facts of the respective charges and the starting points adopted by Barnes J according to the written statement of Miss Teresa Kam, Senior Public Prosecutor appearing for the respondent, as follows:", "zh-HK": "本庭根據答辯人原代表律師高級檢控官金玉的書面陳述將各項控罪的案情及張法官採納的量刑基準簡述如下：" } }, { "doc_id": 73, "seg_id": 9, "translation": { "en": "Charge 1", "zh-HK": "控罪一" } }, { "doc_id": 73, "seg_id": 10, "translation": { "en": "In the small hours of the morning in an office of a pumping station of the Water Supplies Department in Ma On Shan, two wooden doors were prized open and the office was ransacked. After checking, it was found that a torch and a pack of white rice, valued at HK$237, had been stolen. Subsequently, D1’s fingerprint was found. The Court adopted 2 ½ years as the starting point.", "zh-HK": "凌晨時份馬鞍山一水務署抽水站辦公室的兩度木門被撬開，並被搜掠，經點算後發現被偷去一支電筒及一包白米，價值港幣237元，其後找到 Dl 的指紋。法庭採取 2 ½ 年為量刑起點。" } }, { "doc_id": 73, "seg_id": 11, "translation": { "en": "Charge 4", "zh-HK": "控罪四" } }, { "doc_id": 73, "seg_id": 12, "translation": { "en": "In the small hours of the morning in a village house in Tseung Kwan O, the male and the female householders and the female domestic helper were fast asleep. Three robbers prized open the kitchen window and climbed into the house. Armed with knives, they went into the male householder’s bedroom, woke him up and forced him to take them to the female householder’s and the female domestic helper’s bedrooms. The three culprits tied up all of them and then ransacked the premises. They robbed them of property worth a total of $149,000. The robbers also forced the male householder to disclose the PIN of the ATM. Subsequently, the robbers used the cash withdrawal card to withdraw over HK$29,000 from the bank ATM. D3’s DNA was found at the scene. The Court adopted 8 ½ years as the starting point.", "zh-HK": "凌晨時份將軍澳一村屋的男女戶主及女傭正在熟睡中，三名劫匪撬開廚房窗爬入屋，持刀走進男戶主的睡房把他叫醒，然後迫使他帶路到女戶主的睡房及女傭的睡房，三名匪徒把他們全部綑綁起來，然後在屋內搜掠，共劫去價值 149,000 元的財物。匪徒並迫男戶主說出櫃員機私人密碼。其後劫匪利用提款卡在銀行自動櫃員機提去港幣29,000多元。在現場發現D3的DNA 。法庭採取8 ½ 年為量刑起點。" } }, { "doc_id": 73, "seg_id": 13, "translation": { "en": "Charge 5", "zh-HK": "控罪五" } }, { "doc_id": 73, "seg_id": 14, "translation": { "en": "This was the withdrawal made with the ATM card snatched in Charge 4. The Court adopted 1 ½ years as the starting point.", "zh-HK": "這就是從控罪四搶去的自動櫃員卡作出的提款。法庭採取1 ½ 年為量刑起點。" } }, { "doc_id": 73, "seg_id": 15, "translation": { "en": "Charge 6", "zh-HK": "控罪六" } }, { "doc_id": 73, "seg_id": 16, "translation": { "en": "In the small hours of the morning, the family of four including the male and female householders were sleeping in a detached villa in Shatin. The male householder heard some noise and went to the living room to check it out. He found three men each armed with a beef knife in the living room. The householder intended to retreat to the bedroom but was stopped by the culprits. All the family of four were tied up and the three robbers ransacked the premises wantonly. Property worth a total of $150,000 odd was robbed. Later, the victims freed themselves and reported the case to the police. The police found D3’s fingerprints at the scene and D1 was identified as one of the robbers in a subsequent identification parade. The Court adopted 8 years as the starting point.", "zh-HK": "在凌晨時份，男女戶主一家四口正在沙田一獨立別墅中睡覺，男戶主聽到有聲音，到客廳查看，發現客廳中有三名各持牛肉刀的男子。戶主企圖退回房內，被匪徒截停。一家四口全部被綑綁，三名匪徒在屋內大肆搜掠，劫去價值共l50,000多元的財物。各受害人稍後自行鬆綁報警，警察在現場發現D3 的指模及在其後的列隊認人手續中，Dl 被認出為其中一名劫匪。法庭採取8年為量刑起點。" } }, { "doc_id": 73, "seg_id": 17, "translation": { "en": "Charge 7", "zh-HK": "控罪七" } }, { "doc_id": 73, "seg_id": 18, "translation": { "en": "In the small hours of the morning, four robbers armed with beef knives and choppers went into an OK Convenience Store in Shatin and declared robbery. They robbed two female staff and one male customer of the property on their person. The police found D3’s fingerprints at the scene and D1 was identified as one of the robbers. The Court adopted 5 ½ years as the starting point.", "zh-HK": "在凌晨時份沙田的OK便利店，四名持牛肉刀及菜刀的劫匪進入店鋪聲稱打劫，從兩名女店員及一男顧客身上劫去財物。警員在現場找到D3的指模，及Dl被認出為其中一名劫匪。法庭採取5 ½ 年為量刑起點。" } }, { "doc_id": 73, "seg_id": 19, "translation": { "en": "Charge 8", "zh-HK": "控罪八" } }, { "doc_id": 73, "seg_id": 20, "translation": { "en": "In the small hours of the morning in a villa located in Sai Koon (sic), the male householder and the two female domestic helpers were fast asleep. Five robbers went into the small house of the female domestic helpers near the swimming pool and tied them up. They also robbed them of their property including identity card, Octopus card and cash. One of the female domestic helpers was slightly injured. She sustained bruises on her head and foot. The five robbers then went into the big house where the male householder resided. In a room, they took away 30 pieces of gold ornaments worth a total of $30,000 odd and fled. Subsequently, the police found the fingerprints of D1 and D3 at the scene. The Court adopted 6 years as the starting point.", "zh-HK": "在凌晨時份西貫一別墅中的男戶主及兩名女傭正在熟睡，五名劫匪進入女傭在泳池附近的一間小屋中把她們綑綁，並劫去她們的財物包括身份證、八達通及現金。其中一名女傭受了輕傷，頭部腳部瘀傷。接着，五名劫匪進入男戶主所住的大屋，在房中取去 30 件共值30,000多元的金飾逃去。警員其後在現場發現 Dl 及 D3 的指模。法庭採取6年為量刑起點。" } }, { "doc_id": 73, "seg_id": 21, "translation": { "en": "Charge 9", "zh-HK": "控罪九" } }, { "doc_id": 73, "seg_id": 22, "translation": { "en": "In the small hours of the morning, the male and female householders, their two small sons and the female domestic helper were fast asleep in a detached house in Kau To Shan, Shatin. Four culprits broke the glass house on the ground floor to gain entry. Armed with knives, they woke up everyone in the house and forced the victims to surrender all valuables and disclose the PIN of the ATM card. While D1 took the cash withdrawal card to the bank to withdraw $10,000, the other robbers tied up and guarded the victims in the house. Later, the victims freed themselves and reported the case to the police. D1 was identified in a subsequent identification parade. The Court adopted 9 years as the starting point.", "zh-HK": "在凌晨時份男女戶主、兩名年幼的兒子及女傭正在沙田九肚山一獨立屋熟睡，四名匪徒打破地下的玻璃屋入門，持刀叫醒各人，迫受害人交出所有貴重物品及透露銀行自動櫃員卡密碼，Dl拿走提款卡並到銀行提出$l0,000元時，其他劫匪就在屋中負責綑綁及看守各人。各受害人稍後自行鬆綁報警。Dl其後在列隊認人手續中被認出。法庭採取9年為量刑起點。" } }, { "doc_id": 73, "seg_id": 23, "translation": { "en": "Charge 10", "zh-HK": "控罪十" } }, { "doc_id": 73, "seg_id": 24, "translation": { "en": "In the small hours of the morning, the male householder and the female domestic helper were fast asleep in a detached house in Tai Po. Noise of things being broken was heard from the garden and four robbers armed with beef knives and choppers were seen entering the premises. The robbers took the female domestic helper to the master bedroom on the third floor and woke up the male householder. Having tied up the two of them, they ransacked the premises wantonly. They prized open a safe and stole property worth a total of $370,000. The police seized from the scene beef knife, chopper and a cigarette butt which was found to contain the DNA of D3. D3 was also identified in an identification parade. The Court adopted 8 ½ years as the starting point.", "zh-HK": "在凌晨時份男戶主及女傭正在大埔一獨立屋中熟睡，聽到花園傳來碎物聲音，看見四名持有牛肉刀及菜刀的劫匪進入單位。劫匪把女傭帶到三樓主人房，並叫醒男戶主，兩人被綑綁，匪徒在屋內大肆搜掠，撬開一個夾萬，偷去價值共370,000元的財物。警方在現場檢取牛肉刀、菜刀及一個煙頭，其中發現D3的DNA，D3亦在列隊認人手續中被認出。法庭採取8 ½ 年為量刑起點。" } }, { "doc_id": 73, "seg_id": 25, "translation": { "en": "Charge 11", "zh-HK": "控罪十一" } }, { "doc_id": 73, "seg_id": 26, "translation": { "en": "In the small hours of the morning when the male and female householders and the female domestic helper were sleeping in a detached house in Kau To Shan in Shatin, the alarm suddenly went off. After checking, the male householder reset the alarm and went back to the bedroom to sleep. At this juncture, the female domestic helper was woken up by two robbers and another two robbers went inside the house to subdue her. During a scuffle with the robbers, the female domestic helper had her ring finger cut with a 1.5 cm wound. After robbing her of some valuable property in her room, the robbers took her to the ground floor living room. At 8 o’clock in the morning, the householder, having got up, met the four robbers armed with knives in the ground floor living room. The robbers tied them up and ransacked the house before they fled. The victims later freed themselves and reported the case to the police. Property worth a total of $320,000 odd was robbed. The police found D1’s fingerprint at the scene and a watch robbed was later recovered from a pawnshop. Under caution, D1 admitted that he had pawned this watch with the identity card and home visit card of the householder. The Court adopted 8½ years as the starting point.", "zh-HK": "在凌晨時份，男女戶主及女傭正在沙田九肚山一獨立屋中睡覺，警報突然響起，男戶主檢查後重置警報系統並回房睡覺。這時，女傭被兩名劫匪叫醒，再有兩名匪徒進入屋內把她制服。女傭與劫匪糾纏中無名指遭割傷，傷口達l.5 厘米。劫匪從她房中劫去一些貴重物品後帶她到地下客廳，直至早上八時，戶主起身後在地下客廳與四名持刀劫匪相遇，劫匪把各人綑綁，在屋內搜掠，然後逃去。受害人稍後自行鬆綁報警，被劫去財物共價值320,000多元。警方在現場發現Dl的指模，其後在當鋪起回一隻被劫去的手錶。D1警誡下承認他用戶主的身份證及回鄉證押了這隻手錶。法庭採取8 ½ 年為量刑起點。" } }, { "doc_id": 73, "seg_id": 27, "translation": { "en": "Charge 12", "zh-HK": "控罪十二" } }, { "doc_id": 73, "seg_id": 28, "translation": { "en": "In the small hours of the morning, the male householder was sleeping in a villa in Sai Kung. When he woke up the following morning, he found the main door prized and the house ransacked. After checking, property worth a total of $25,000 was lost. The Court adopted 3 years as the starting point.", "zh-HK": "在凌晨時份一男戶主正在西貢一別墅中睡覺，第二天醒來後發現大門遭匪徒撬開進入屋內搜掠，檢查後發現失去共價值25,000元的財物。法庭採取 3 年為量刑起點。" } }, { "doc_id": 73, "seg_id": 29, "translation": { "en": "Charge 13", "zh-HK": "控罪十三" } }, { "doc_id": 73, "seg_id": 30, "translation": { "en": "On 6 May 2008, when the four defendants were stopped by the police officers in Shatin, property robbed in Charge 12 was found upon search. The Court adopted 2 ½ years as the starting point.", "zh-HK": "四名被告於2008年5月6日在沙田被警員截停的時候，搜出控罪十二中劫去的有關財物。法庭採取2 ½ 年為量刑起點。" } }, { "doc_id": 73, "seg_id": 31, "translation": { "en": "Background of the Applicants", "zh-HK": "申請人的背景" } }, { "doc_id": 73, "seg_id": 32, "translation": { "en": "Wong Cheung, aged 27, Chau Kei, aged 35, and their accomplices all came from Sichuan. They had no criminal record. They claimed that their homes were in ruins after the massive earthquake, so in desperation, they came to Hong Kong to commit crime. However, as Barnes J had rightly pointed out, the Sichuan earthquake took place on 12 May 2008 while they were arrested by the police on 6 May. Their commission of crimes had nothing to do with the earthquake.", "zh-HK": "王祥27歲，鄒旗35歲和其同謀都來自四川，亦沒有刑事記錄。他們聲稱因大地震後家園被毀，故挺而走險來港犯案，但誠如張法官指出，四川大地震在2008年5月12日發生，他們在5月6日被 警方拘捕，他們犯案實與地震無關。" } }, { "doc_id": 73, "seg_id": 33, "translation": { "en": "The trial judge’s reasons for sentence", "zh-HK": "原審法官的判刑理由" } }, { "doc_id": 73, "seg_id": 34, "translation": { "en": "Barnes J pointed out that the facts concerning the robbery charges were exceptionally serious. The applicants, acting in concert, trespassed into the luxury detached houses selected, tied up the victims and then plundered their property. On two of the occasions, the culprits even forced the victims to disclose the PINs of the cash withdrawal cards so that they could steal money from the ATMs successfully. In respect to the various counts of robbery, Barnes J followed the sentencing guidelines set out in the case of Mo Kwong-sang [1981] HKLR 610 and adopted 6 to 9 years’ imprisonment as the starting point.", "zh-HK": "張法官指出有關搶劫控罪的案情異常嚴重。申請人集體行動，闖進經選擇的豪宅獨立屋，將受害人綑綁後奪取其財物。其中兩次，賊人更迫令受害人透露銀行提款卡密碼，令他們成功從自動櫃員機盜取金錢。就各項搶劫罪，張法官根據茆廣生案[1981] HKLR 610的量刑指引，採納了6至9年的量刑基準。" } }, { "doc_id": 73, "seg_id": 35, "translation": { "en": "In respect of the offences of burglary in the 1st and the 12th charges that Wong Cheung faced, Barnes J adopted a starting point of 2½ years’ and 3 years’ imprisonment respectively. In respect of the 5th Charge of theft that Chow Kei faced, Barnes J adopted a starting point of 1½ years’ imprisonment. Barnes J then, on account of the applicants’ guilty pleas, reduced the starting points by one-third to arrive at the sentences for the various charges.", "zh-HK": "就針對王祥的第1及12項入屋犯法罪，張法官採納2 ½ 年及3年的量刑基準。就針對鄒旗的第5項盜竊罪，張法官則採納了1 ½ 年為量刑基準。張法官因申請人承認控罪而將量刑基準扣減三份一作為各項控罪的判刑。" } }, { "doc_id": 73, "seg_id": 36, "translation": { "en": "Had the sentences of all the 7 counts to which Wong Cheung and Chau Kei respectively pleaded guilty been added up, the overall sentences would be 28 years and 4 months and 27 years respectively. Barnes J ordered parts of the sentences to run concurrently, thus arriving at an overall sentence of 19 years and 17 years and 8 months for Wong Cheung and Chau Kei respectively.", "zh-HK": "假若將王祥和鄒旗分別承認的7項控罪判刑全部加起，則其總判刑分別會是28年4個月及27年。張法官下令部份刑期同期執行，最終達至王祥和鄒旗的總刑期分別為19年和17年8個月。" } }, { "doc_id": 73, "seg_id": 37, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 73, "seg_id": 38, "translation": { "en": "Mr Suen Kam Hee, of counsel, who appears on behalf of the applicants, agrees to the various starting points adopted by Barnes J in the respective charges. He also agrees to Barnes J’s reduction of the starting points by one-third on account of the applicants’ guilty pleas. The only complaint he has is that Barnes J failed to adopt a global view in dealing with the case, thereby reaching an overall sentence that is manifestly excessive.", "zh-HK": "代表申請人的孫錦熹大律師認同張法官就各項控罪所採納的量刑基準，亦同意張法官因申請人認罪而將量刑基準扣減三份一的處理方法。孫大律師唯一的投訴是張法官沒有以宏觀角度處理案件，而達致明顯過重的總刑期。" } }, { "doc_id": 73, "seg_id": 39, "translation": { "en": "Mr Suen cited a number of authorities to illustrate the excessiveness of the overall sentences of the applicants. He emphasized that in so far as armed robbery not involving firearms or imitation firearms is concerned, the overall starting point will be no more than 18 years, even if the defendant has committed multiple offences. Mr Suen in particular pointed out that in HKSAR v Chan Hung Kit (CACC 572/2001), the defendant had, on 9 occasions, carried a knife to rob fashion shops. He tied up the victims or blindfolded them before robbing them of their property. The defendant pleaded guilty to the charges and was sentenced to a totality of 12 years’ imprisonment.", "zh-HK": "孫大律師援引多宗案例顯示申請人的總判刑過重。孫大律師強調以不涉及槍械或仿製槍械的械劫案而言，即使被告人干犯多宗控罪，總量刑基準都不會超過18年。孫大律師特別指出在 HKSAR v Chan Hung Kit（CACC 572/2001）案，被告人9次持刀搶劫時裝店，並將受害人綑綁或矇眼後才劫去她們的財物。被告人承認控罪後被判入獄共12年。" } }, { "doc_id": 73, "seg_id": 40, "translation": { "en": "Standpoint of the respondent", "zh-HK": "答辯人的立場" } }, { "doc_id": 73, "seg_id": 41, "translation": { "en": "Mr Martin Hui, Senior Public Prosecutor, who appears for the respondent agrees that in so far as robbery not involving firearms or imitation firearms is concerned, the overall starting point will normally be no more than 18 years, even if it involves a number of co-offenders and multiple offences. Nevertheless, Mr Hui pointed out that there are aggravating factors in this case. These include (1) the applicants acted in concert with a number of people to commit crimes; (2) they had come to Hong Kong on many occasions for the purpose of committing crimes, notwithstanding that they had already been punished for their illegal entry in another case; (3) the facts of these cases are serious in the sense that the applicants entered the private domestic premises very late at night to commit crimes; and (4) the applicants and their accomplices used knives to threaten the victims and tied them up. They even obtained their cash withdrawal cards to make withdrawals and the property involved worth over 1 million dollars in total.", "zh-HK": "代表答辯人的高級檢控官許紹鼎同意以不涉及槍械或仿製槍械的劫案而言，即使涉及多名犯案者及多項控罪，總量刑基準一般都不會超過18年。但許高級檢控官指出本案有加重罪責因素，包括（一）申請人都是夥同多名他人犯案；（二）他們多次來港，目的都是犯案，雖然他們因非法來港一事已在他案被罸；（三）涉案的案情嚴重，申請人都是在深夜時份，進入私人住宅犯案；及（四）申請人及其同黨有用刀恐嚇受害人及有綑綁他們，甚至取得他們的提款卡前往提款，而案件涉及財物的總額亦有100多萬元。" } }, { "doc_id": 73, "seg_id": 42, "translation": { "en": "Nevertheless, Mr Hui fairly accepted that there are factors in this case which justify for a reduction of sentence. These include that the applicants had no criminal record and that they did not use severe or gratuitous violence on the victims in the course of the incidents.", "zh-HK": "但許高級檢控官亦公平地接納案件亦有減刑因素，包括申請人都沒有犯罪記錄，而在事件中，他們亦沒有對受害人採用嚴重或不需要之暴力。" } }, { "doc_id": 73, "seg_id": 43, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 73, "seg_id": 44, "translation": { "en": "Both applicants are illegal immigrants. In a period as long as 4 years, they came to Hong Kong a number of times to commit extremely serious offences, including committing house robbery on a number of occasions.", "zh-HK": "兩名申請人都是非法入境者，他們在長達4年多的時間，多次來港干犯極為嚴重的罪行，包括多次入屋搶劫。" } }, { "doc_id": 73, "seg_id": 45, "translation": { "en": "In so far as the robberies are concerned, they are the most serious cases of their type. The applicants, acted in concert with the others, trespassed into the victims’ residence in the early hours of the morning while they were fast asleep. They woke them up, threatened them with knives and tied them up before robbing them of their valuable property. On two of the occasions, they even forced the victims to disclose the PINs so that the culprits could use the PINs to withdraw money from the bank accounts of the victims successfully.", "zh-HK": "有關的搶劫罪亦是同類案件中較為嚴重的。申請人夥同他人，在凌晨時份，正當受害人熟睡中，闖入他們的居所，弄醒及持刀恐嚇，然後綑綁他們後，才劫去巨額財物，其中兩次受害人更被迫透露私人密碼，令賊人成功利用密碼提取受害人銀行賬戶內的金錢。" } }, { "doc_id": 73, "seg_id": 46, "translation": { "en": "Apart from robbing private domestic premises, the applicants also armed themselves with knives and acted in concert with other people to rob a convenience store. This Court has once emphasized in a case of similar nature, that convenience stores are opened 24 hours and in general, carry large amount of cash, thus are very tempting to robbers. In such circumstances, the offence of robbing a convenience store is akin to the offences of robbing a bank, a goldsmith shop or other shops which carry large amount of cash, heavy deterrent sentences are called for so as to prevent these shops from falling prey to robbers easily.", "zh-HK": "除了搶劫私人住宅外，申請人亦有夥同他人持刀搶劫一便利店。本庭曾在同類案件中強調，便利店24小時營業，一般亦存有大量現金，對劫匪構成誘因。因此搶劫便利店的罪行和搶劫銀行、金鋪或其他存放有大量現金的店鋪的罪行一樣都要重判以收阻嚇作用，避免該等店鋪輕易成為劫匪的獵物。" } }, { "doc_id": 73, "seg_id": 47, "translation": { "en": "As far as the various counts of robbery in this case are concerned, Barnes J adopted a starting point of 6 to 9 years’ imprisonment which is absolutely correct.", "zh-HK": "以本案涉及的各項搶劫罪行而言，張法官採納的6至9年量刑基準，絕對正確。" } }, { "doc_id": 73, "seg_id": 48, "translation": { "en": "Of course, the applicants committed multiple offences over a long period of time. The overall sentences must reflect this factor and the other aggravating factors. However, Wong Cheung’s overall sentence of 19 years and Chau Kei’s overall sentence of 17 years and 8 months reflect that the starting points were 28 ½ years and 26 ½ years respectively.", "zh-HK": "當然申請人長時間多次犯案，總刑期亦必需反映這因素及其他加重刑罰因素。但王祥的19年總刑期和鄒旗的17年8個月總刑期分別反映的量刑基準為28 ½ 年和26 ½ 年。" } }, { "doc_id": 73, "seg_id": 49, "translation": { "en": "As far as armed robbery involving no firearms or imitation firearms is concerned, the starting points of 28 ½ years and 26 ½ are unprecedented.", "zh-HK": "以持械行劫罪行，但不涉及火器或仿製火器之劫案而言，28 ½ 年和26 ½ 年之量刑基準是史無前例的。" } }, { "doc_id": 73, "seg_id": 50, "translation": { "en": "Where the defendant committed more than one offence of a similar nature at different times, it is right for the Court to impose a sentence higher than when there had been only one offence. However, the sentencer should not add up the sentences of the various charges, instead he should approach this matter as if the multiple charges have been dealt with together and on that basis, arrive at an appropriate total sentence. (See The Queen v Tong Hoi-fung [1988] 1 HKLR 610.)", "zh-HK": "當被告人在不同時間多次干犯同類罪行時，判刑理應較他只是一次犯案為重，但判刑者不應將多項控罪的判刑加在一起，而是以多項控罪一起審理為基礎而定出一個合適的總刑期。（見The Queen v Tong Hoi-fung [1988] 1 HKLR 610案）。" } }, { "doc_id": 73, "seg_id": 51, "translation": { "en": "In R v Kwok Man-hung & others (CACC 17/1983), four defendants armed with knives trespassed into private domestic premises. Having threatened and tied up the occupants, they ransacked the house and took away property. Amongst these four defendants, one of them was convicted of 2 counts and (one of them) 3 counts of robbery. There was one who was convicted of 5 counts of robbery. As a result, the defendant convicted of 2 counts was sentenced to 8 years’ imprisonment. The defendant convicted of 3 counts was sentenced to 9 years’ imprisonment whereas the defendant convicted of 5 counts was sentenced to 10 years’ imprisonment. The Court of Appeal considered that the sentences were appropriate. We should point out that the defendants in that case were all young offenders at the age of 16 or 17.", "zh-HK": "在R v Kwok Man-hung & others (CACC 17/1983案)，四名被告人持刀闖入私人住宅，恐嚇及綑綁居住者後，搜掠及取去財物。該四名被告人中有一人被裁定2項及3項搶劫罪成立，有人被裁定5項搶劫罪成立，結果被裁定2項罪名成立的被告人被判入獄8年，3項罪名成立的被告人被判入獄9年，而5項罪名成立的被告人則被判入獄10年。上訴法庭認為判刑適當。本庭應指出該案的被告人全部都是16、17歲的青年罪犯。" } }, { "doc_id": 73, "seg_id": 52, "translation": { "en": "In R v Chan Chi-fai & others (CACC 593, 643/1983), 6 defendants armed with knives trespassed into a number of domestic premises, a dental clinic and a hairdressing saloon to rob. The culprits tied up and imprisoned the victims for a period as long as 12 hours. One of the victims was even forced to sign a bank withdrawal slip at knife point. Two victims were injured by knife. The 6 defendants were convicted of 2 to 5 counts of robbery and were sentenced to 8 to 11 years of imprisonment. Amongst the 6 defendants, one was 22 years of age and the others were around 18 years of age. When the Court of Appeal dismissed their appeal against sentence, it pointed out that where there was a multiplicity of offences, public interest must override the individual interests of the applicants. In these circumstances, despite the youthfulness of the defendants, severe penalty involving long terms of imprisonment was still called for.", "zh-HK": "在R v Chan Chi-fai & others (CACC 593 643/1983案)，6名被告人持刀闖入多間民居及一牙醫診所和髮型屋搶劫。賊人綑綁及禁錮受害人長達12小時。一名受害人更在刀尖下被迫簽署一提款單，兩名受害人受刀傷，6名被告人被裁定2至5項搶劫罪後，被判入獄8至11年。6名被告人，一名22歲，其他約18歲。上訴法庭駁回他們的減刑上訴時，指出在涉及多項罪行的案件，公眾利益凌駕於各被告人的個人利益。因此雖然各被告人年輕，但仍需判處長期監禁之重刑。" } }, { "doc_id": 73, "seg_id": 53, "translation": { "en": "In AG v Ho Wing Ho (CAAR 12/1981), the defendant committed 3 burglaries. A few days later, in the same building, he committed robbery and rape inside premises twice. 3 days later, he even committed 3 aggravated burglaries. The defendant pleaded guilty to a total of 9 charges and was sentenced to a total of 5 years’ imprisonment. When the Court of Appeal reviewed the sentence, it was of the view that the original sentence of 5 years’ imprisonment was inadequate and an appropriate overall sentence should be one of 8 years.", "zh-HK": "在AG v Ho Wing Ho (CAAR 12/1981)案，被告人3次非法入屋犯法；數天後，在同一大廈兩次入屋搶劫及強姦，3天後更3次干犯嚴重入屋犯法罪。被告人承認共9項控罪後，被判共入獄5年。上訴法庭覆核判刑時，認為原判的5年監禁過輕，而適當的總刑期應為8年。" } }, { "doc_id": 73, "seg_id": 54, "translation": { "en": "Compared with the above cases, the overall starting points of 28½ years and 26 ½ years adopted in this case and the ultimate sentences of 19 years and 17 years and 8 months are manifestly excessive. We must bear in mind that apart from tying up the victims, the defendants and their accomplices did not use any gratuitous violence on them, nor did the victims sustain any injuries. What is more, we must not forget that the two applicants had no previous record.", "zh-HK": "和上述案件比較，本案所採納的28 ½ 年和26 ½ 年的總量刑基準及最終的19年和17年8個月的判刑均屬明顯過重。本庭不能忽視，在案中除了綑綁受害人外，被告人和其同謀都沒有對他們施用其他不必要的暴力，受害人亦沒有受傷。本庭更不能忽視兩名申請人都沒有犯案前科。" } }, { "doc_id": 73, "seg_id": 55, "translation": { "en": "In our view, from whatever angle we look at the sentences imposed in this case, the conclusion is that the sentences are manifestly excessive. In our view, although the charges Wong Cheung and Chau Kei faced are slightly different, there is no significant difference between their culpability. In such circumstances, there should not be a disparity of 2 years in the starting points.", "zh-HK": "本庭認為不論從任何角度審視本案的刑期，得到的結論是該刑期是明顯過重。本庭亦認為雖然王祥和鄒旗面對的控罪略有一不同，但他們的整體罪責不相伯仲，故不需處以差額達2年的不同量刑基準。" } }, { "doc_id": 73, "seg_id": 56, "translation": { "en": "In our view, having regard to the principle of totality, an overall starting point of 18 years is sufficient to reflect the gravity of the offences committed by the applicants. Since the applicants pleaded guilty to the charges, the overall sentence should be reduced by one-third to 12 years.", "zh-HK": "本庭認為以整體而言，總量刑基準18年足以反映申請人罪行的嚴重性。申請人承認控罪，故總刑期應扣減三份一至12年。" } }, { "doc_id": 73, "seg_id": 57, "translation": { "en": "We uphold the respective sentences imposed on the individual charges against Wong Cheung, but order that save the sentence of 4 years’ imprisonment on count 8 which is to run consecutively to the 6 years on count 9 and the 2 years on count 12, the remainders shall run concurrently with the sentence of 6 years imposed on count 9.", "zh-HK": "本庭維持針對王祥個別控罪的判刑，但下令除了第8項控罪的4年判刑要和第9項控罪的6年判刑及第12項控罪的2年判刑分期執行外，其餘控罪的判刑都和第9項控罪的6年判刑同期執行。" } }, { "doc_id": 73, "seg_id": 58, "translation": { "en": "We also uphold the respective sentences imposed on the individual charges against Chau Kei, but order that save the sentence of 5 years and 8 months’ imprisonment on count 4 which is to run consecutively to the 1 year on count 5 and the 5 years and 4 months on count 6, the remainders shall run concurrently with the sentence of 5 years and 8 months imposed on count 4.", "zh-HK": "本庭亦維持鄒旗個別控罪的判刑，但下令除了第4項控罪的5年8個月判刑要和第5項控罪的1年判刑及第6項控罪的5年4個月判刑分期執行外，其餘控罪的判刑都和第4項控罪的5年8個月判刑同期執行。" } }, { "doc_id": 73, "seg_id": 59, "translation": { "en": "The totality of sentence on Wong Cheung should be reduced from 19 years to 12 years while Chau Kei from 17 years 8 months to 12 years. For the reasons given, we allow the two applicants’ appeals against their sentences and substitute therewith the above sentences.", "zh-HK": "王祥的總判刑應由19年減至12年，而鄒旗的總判刑則應由17年8個月減至12年。因此本庭裁定兩名申請人減刑上訴得直，並將他們的判刑改判如上。" } }, { "doc_id": 73, "seg_id": 60, "translation": { "en": "Teresa Kam, Senior Public Prosecutor and Martin Hui, Senior Public Prosecutor, of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級檢控官金玉及高級檢控官許紹鼎代表。" } }, { "doc_id": 73, "seg_id": 61, "translation": { "en": "Suen Kam Hee, assigned by the Legal Aid Department, for the 1st and the 2nd Applicant (the 1st and the 3rd Defendant)", "zh-HK": "第一及第二申請人：由法律援助署委派孫錦熹大律師代表。（第一及第三被告人）" } }, { "doc_id": 74, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the Reasons for Judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 74, "seg_id": 2, "translation": { "en": "The applicant was charged with one count of possessing arms and ammunition without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance (Cap. 238 of the Laws of Hong Kong). The arms and ammunition stated in the charge were one magazine and 128 rounds of bullet. After trial before Deputy District Judge Rickie Chan, the applicant was convicted of the offence and was sentenced to imprisonment for 3 years. He applies for leave to appeal against both conviction and sentence.", "zh-HK": "申請人被控一項無牌管有槍械及彈藥罪，違反《火器及彈藥條例》第 13 條（香港法例第 238 章）。控罪所指的槍械及彈藥是一個子彈匣及 128 發子彈。案件經區域法院暫委法官陳錦昌審訊後，申請人被裁定罪名成立及被判處三年監禁。申請人就定罪及刑期提出上訴許可申請。" } }, { "doc_id": 74, "seg_id": 3, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 74, "seg_id": 4, "translation": { "en": "The facts showed that on 20 November 2006 the police set up a roadblock and intercepted the private car driven by the first prosecution witness (“PW1”). A bag containing the said ammunition was found in the boot of the car. PW1 gave evidence that he had been permitted to use the private car by the applicant and was driving it to buy food at the material time. He said he did not know that there was ammunition in the boot.", "zh-HK": "案情顯示 2006 年 11 月 20 日警方在馬路上設置路障及截停控方第一証人（‘第一証人’）所駕駛的私家車。警方在汽車的行李箱內發現一個袋，袋內載着上述的彈藥。第一証人的證供是申請人准許他使用該輛汽車，當時他正駕車去購買食物，他不知道行李箱內藏有彈藥。" } }, { "doc_id": 74, "seg_id": 5, "translation": { "en": "The second prosecution witness (“PW2”) was the registered owner of the private car. He said that he and the applicant had been acquaintances for more than 10 years. He bought the car from the applicant in 2002 and the applicant had all along been responsible for the maintenance of the car. In late September 2006, as the vehicle licence of the car had expired, PW2 delivered the car to the applicant for him to have the licence renewed and perform a routine check on the car. PW2 said that the ammunition found by the police in the car did not belong to him, nor did he know to whom the ammunition belonged.", "zh-HK": "該汽車的登記車主是控方第二証人（‘第二証人’）。他說他與申請人相識已十多年。該汽車是他在2002 年向申請人購買回來的，一直以來都是由申請人負責保養。2006 年 9 月底，第二証人因該汽車的車輛牌照過了期，於是將該汽車交給申請人去進行續領牌照手續及作例行檢查。第二証人說警方在汽車內所發現的彈藥不是屬於他的，他不知道這些物品屬於誰人。" } }, { "doc_id": 74, "seg_id": 6, "translation": { "en": "According to the evidence of PW3, a sergeant attached to the Arms Licensing Section of the Licensing Office of the Hong Kong Police Force, any holder of an arms licence could only use bullets that belonged to that particular holder.", "zh-HK": "根據控方第三証人（即警務處牌照課的槍械牌照組的警長）的證供，所有槍牌持有人只可以使用屬於自己的子彈。" } }, { "doc_id": 74, "seg_id": 7, "translation": { "en": "The applicant’s defence", "zh-HK": "申請人的答辯" } }, { "doc_id": 74, "seg_id": 8, "translation": { "en": "The applicant elected to give evidence. He said that he had been a holder of an arms licence since August 1996 and that he practised handgun firing at a gun club. He had owned five firing handguns. On 30 August 2005, he applied to surrender the arms licence and gave the five handguns as a gift to the gun club. Some 8 to 10 days prior to the alleged offence, the applicant found the ammunition in question at home. He intended to give that batch of bullets to PW2, who was also a member of the gun club. As PW2 had given the car to him for maintenance purposes, he intended to deliver the car together with the ammunition to PW2 upon completion of the maintenance work. He said that but for the present case he would have delivered the car and the ammunition to PW2 within one to two days. He denied having any intent to possess that batch of ammunition. He said that as he did not own any arms, it would serve him no purpose to possess the bullets in question.", "zh-HK": "申請人選擇作供。他指自1996 年 8 月開始便領有槍牌及在槍會練習手槍射擊。他曾擁有五支射擊手槍。2005 年 8 月 30 日他申請取消槍牌及將五支手槍送給槍會。在案發前的八至十天，申請人在家中發現涉案彈藥。由於第二証人亦是槍會的會員，他打算將該批子彈轉贈給第二証人。由於當時第二証人將汽車交給他進行維修，所以他打算維修工作完成後一併將汽車及彈藥送交第二証人。申請人指若不是本案，他會在一、兩天內將汽車及彈藥送達第二証人。申請人否認他有意圖管有該批彈藥。他指既然他沒擁有任何槍械，管有有關子彈對他是毫無用處的。" } }, { "doc_id": 74, "seg_id": 9, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 74, "seg_id": 10, "translation": { "en": "The applicant raises the following four grounds of appeal against conviction:", "zh-HK": "申請人就定罪提出以下四項上訴理由：" } }, { "doc_id": 74, "seg_id": 11, "translation": { "en": "Before rejecting the applicant’s evidence, Deputy Judge Chan erroneously failed to consider, adequately or at all, that PW2’s evidence was in line with the applicant’s evidence.", "zh-HK": "陳法官在拒絕接納申請人的證供前，錯誤地沒有考慮或足夠考慮第二控方証人與申請人的證供是吻合的。" } }, { "doc_id": 74, "seg_id": 12, "translation": { "en": "The finding of the Deputy Judge that the applicant had the intent to possess the arms and ammunition listed in the charge was contrary to the facts.", "zh-HK": "原審暫委法官裁定申請人有意圖管有控罪書上所列舉的槍械彈藥與事實不乎。" } }, { "doc_id": 74, "seg_id": 13, "translation": { "en": "The Deputy Judge erred in inferring, on the basis that the applicant might have contravened arms licensing regulations, that he was guilty.", "zh-HK": "原審暫委法官錯誤地因申請人可能觸犯了槍械牌照的規例而推論他有罪。" } }, { "doc_id": 74, "seg_id": 14, "translation": { "en": "The verdict of the Deputy Judge on the applicant was unsafe and unsatisfactory.", "zh-HK": "原審暫委法官對申請人的有關裁決是不穩妥及不安全的。" } }, { "doc_id": 74, "seg_id": 15, "translation": { "en": "The evidence on the applicant’s intention to give away the ammunition", "zh-HK": "申請人意圖轉贈的證供" } }, { "doc_id": 74, "seg_id": 16, "translation": { "en": "Deputy Judge Chan refused to accept the applicant’s claim that he had the intention to give away the ammunition to PW2. Mr. Chow, counsel for the applicant, submits that PW2 admitted in his evidence that the applicant had mentioned that he was going to surrender the arms licence and give the arms and remaining bullets to PW2 as a gift. However, Deputy Judge Chan was silent on such evidence in his Reasons for Verdict. The relevant evidence from PW2 on the point about the applicant giving away the bullets is as follows:", "zh-HK": "陳法官拒絕接納申請人有將這些彈藥轉贈給第二証人的意圖的說法。代表申請人的周柏柱大律師指根據第二証人的證供指出第二証人承認申請人曾向他提及他將會取消槍牌，並將槍械及剩餘的子彈送給他一事，但陳法官沒有在判決理由內提及有關的證供。第二証人有關申請人轉贈子彈的證供是這樣：" } }, { "doc_id": 74, "seg_id": 17, "translation": { "en": "Q:If I point out to you that back in 2005 the defendant mentioned to you that he wanted to surrender his arms licence and that he intended to give to you as a gift a very valuable gun which was worth more than $40,000, but after checking you found out that your arms licence did not allow you to hold any additional arms, is that true?", "zh-HK": "‘問：如果我向你指出，被告人曾經喺 05 年嗰陣時候就同你提及佢想係取消佢嘅槍牌，而將佢其中一支好名貴嘅槍，價值四萬幾鈫，係想轉贈畀你嘅，但係後來你 check 過之後，發覺原來你嘅牌照就已經唔能夠係再持有額外嘅槍械，有冇啲咁嘅事？" } }, { "doc_id": 74, "seg_id": 18, "translation": { "en": "A:I do not clearly remember the details, mention was more or less made.", "zh-HK": "答：細節唔記得好清楚，約莫提過。" } }, { "doc_id": 74, "seg_id": 19, "translation": { "en": "Q:Roughly, did such thing happen? Did it happen?", "zh-HK": "問：大概有冇咁嘅事？有冇咁嘅事呀?" } }, { "doc_id": 74, "seg_id": 20, "translation": { "en": "A:It was mentioned.", "zh-HK": "答：提過。" } }, { "doc_id": 74, "seg_id": 21, "translation": { "en": "Q:So it was mentioned, was it not?", "zh-HK": "問：提過吖嘛?" } }, { "doc_id": 74, "seg_id": 22, "translation": { "en": "A:Yes, it was mentioned.", "zh-HK": "答：係，提過。" } }, { "doc_id": 74, "seg_id": 23, "translation": { "en": "Q:Besides, the defendant had also mentioned to you that if he did not use up the remaining bullets, he would give them to you so that you could fire them on his behalf at the gun club. Did he mention it to you?", "zh-HK": "問：除此之外，被告人亦都係向你曾經提及佢剩番嗰啲子彈如果打唔晒，佢會就係畀你代佢打，喺槍會度打嘅，有冇向你提及過?" } }, { "doc_id": 74, "seg_id": 24, "translation": { "en": "A:I do not know the time or the location, it was more or less mentioned.", "zh-HK": "答：唔知時間、地點，約莫係提過下。" } }, { "doc_id": 74, "seg_id": 25, "translation": { "en": "Q:So it was also mentioned, right?", "zh-HK": "問：都有提過吖嘛，係咪?" } }, { "doc_id": 74, "seg_id": 26, "translation": { "en": "A:It was briefly mentioned.", "zh-HK": "答：提過下。                                 ’" } }, { "doc_id": 74, "seg_id": 27, "translation": { "en": "PW2 also said that he would not refuse to accept those bullets.", "zh-HK": "第二証人亦說他是不會拒絕接受這些子彈的。" } }, { "doc_id": 74, "seg_id": 28, "translation": { "en": "Although the applicant said in his cautioned statement that PW2 did not know that he was going to give the remaining bullets to him as a gift, PW2’s evidence showed that the applicant had indeed talked to him about the matter. Furthermore, although PW2 could not state clearly when the applicant uttered the relevant words to him, Deputy Judge Chan might in our view have overlooked PW2’s evidence when he said had the applicant intended to give away the bullets, he should have informed PW2 immediately.", "zh-HK": "雖然申請人在警誡下所作的口供指第二証人不知道他會將剩餘的子彈轉贈給他，但根據第二証人的證供，申請人確實是對他說過有關的事。另外，雖然第二証人未能清楚道出申請人是在哪時對他說出有關的說話，但本庭認為從陳法官指若申請人有轉贈的意圖，他就理應馬上通知第二証人這個說法看來，他是有可能忽略了第二証人的證供。" } }, { "doc_id": 74, "seg_id": 29, "translation": { "en": "The applicant continued to possess", "zh-HK": "申請人繼續管有" } }, { "doc_id": 74, "seg_id": 30, "translation": { "en": "However, in any event, we do not think that this would not have materially affected the verdict, because in his Reasons for Verdict Deputy Judge Chan made the following findings on the issue of whether the applicant was in possession of the bullets in question:", "zh-HK": "但無論如何本庭不認為這一點會關鍵性地影響判決，理由是陳法官就申請人是否管有有關的子彈一事在他的判案理由中作出以下的裁決：" } }, { "doc_id": 74, "seg_id": 31, "translation": { "en": "52.… What I have to consider is the concept of possession. If the defendant at that time had placed the things in the boot and let PW1 drive the car and return it directly to PW2, or had pointed out to PW1 that he did not have to return the car, I may come to the view that the defendant had parted company with the things found in the boot. In other words, it may be that in those circumstances the defendant could not be described as being in possession of those things. But the facts were rather different. The defendant had neither given up the car nor given it to PW1 as a gift. He only gave limited permission to PW1 to drive the car, which had to be returned to him. Nor had he ever pointed out to PW1 that he did not need or want the things in the car and that they all could be given to PW1 as a gift. Therefore, at the time when he gave the car to PW1 for him to drive, the defendant’s conduct obviously and clearly indicated that both the car and things inside had to be returned.", "zh-HK": "‘52.…..本席要考慮的就是管有這一概念，如果被告人當時將物品擺進車尾廂，並將車輛交由 PW1 駕駛並將車輛直接歸還予 PW2，又或向 PWl 指出他不需要將汽車歸還的話，本席可能認為被告人已和那些車尾廂內所尋獲的東西分道揚鑣。換言之，可能在這情況之下，被告人是不能再描述為管有那些物品的了。但事實並非如此，被告人並不是將汽車放棄或轉贈予 PW1，他是給予 PW1 一些有限的准許去駕駛的，車輛是必須歸還予被告人的。他亦從來沒有向 PWl 指出車內的東西他不需要或不要了，可以全數轉贈予 PW1, 所以當車輛交予 PWl 以供 PW1 駕駛時，被告人的行為明顯及清晰地指出，汽車是必須歸還的，車內的東西也是必須歸還的。" } }, { "doc_id": 74, "seg_id": 32, "translation": { "en": "53.Given the defendant was the owner of the things, various evidence also showed that they had to be returned to him in the end. This being the case, what evidence is there to support a different proposition? In my view, the only reasonable proposition or inference is that the defendant had the intention to continue to exercise control over the things in the boot and expected that the car and the things in the boot would be returned to him for possession after PW1 finished with his limited use of the car. Therefore, judging from the evidence accepted by me in the present case, it is in my view incontrovertible that the defendant was in possession of the arms and ammunition referred to in the charge.", "zh-HK": "53．被告人既是那些東西的物主,種種證據亦顯示那些東西最終必須要回到他手內。如此看來，有甚麼證據可以支持另外的說法呢？本席認為唯一合理的說法或推論，就是被告人意圖繼續對車尾廂內的東西加以操控，並且期望車輛與及車尾廂內的東西會在 PWl 有限使用之後歸還到他管有之下。所以，本席認為，在本案本席所接受的證據看來，被告人絕無置疑是管有控罪內所述及的槍械和彈藥的。" } }, { "doc_id": 74, "seg_id": 33, "translation": { "en": "54.Even if I believe or accept that the defendant had the intention to give the ammunition to PW2 as a gift, this will not undermine the conclusion that I reached earlier on. This is because, even if the court accepts that the defendant had intended to give the ammunition to PW2 as a gift, he had never told PW2 of that intention, and on the day of the offence PW1 was not instructed by the defendant to return the car to PW2. In other words, the analysis that I made earlier on also applies to this situation, which means that the defendant expected that the car and the things inside it would be returned to him after the limited use of the car by PW1 and he also expected that the things in the car would remain under his control. Not only had he not asked PW1 to return the car directly to PW2, but he had also not told PW2 and invited him to take the car back. Put another way, the defendant had no intention whatsoever to alter his possession of the ammunition to another level, i.e. to part with possession of the bullets and magazine.", "zh-HK": "54．就算本席相信或接受被告人是有意圖將彈藥轉贈予 PW2，這也動搖不了本席在較早時候所達致的結論，因為就算被告人為法庭接受他已打算將彈藥轉贈予 PW2，但他從沒有將這意圖告訴 PW2，而當日 PWl 也並不是受被告人所託將汽車歸還予PW2。換言之，本席較早時候所分析的都適用在這情況內，就是被告人會期望汽車和車內的東西在 PWl 有限使用後會歸還到他手裡，他也期望車內的東西依然為他操控，他既沒有告訴 PW1 直接將車交回 PW2，也沒有告訴 PW2 邀請 PW2 來取回車輛，換言之， 被告人根本沒有意圖將他管有彈藥這一事情轉變到另一層面，即是放棄了他對子彈及彈匣的管有。’" } }, { "doc_id": 74, "seg_id": 34, "translation": { "en": "We agree with the findings of Deputy Judge Chan on the issue of possession. Put simply, even if the applicant had the intention to give the bullets in question to PW2 as a gift, he remained in possession of those bullets unless and until he acted on his intention. Although the applicant allowed PW1 to drive the car which contained the bullets, he obviously had no intention to part with possession of the car. And on any view, he could not possibly have such an intention because the car belonged to PW2 and the applicant had not instructed PW1 to deliver the car directly to PW2. Therefore, he was still in actual possession of the bullets until he delivered the car as well as the bullets therein to PW2. The fact that he was in possession of the bullets would not change merely because he had the intention to give them away.", "zh-HK": "本庭同意陳法官有關管有的裁決。簡單而言，就算申請人存有將有關子彈轉贈給第二証人的意圖，但在他未有真正作出行動之前，他是一直在管有着有關的子彈的。申請人雖然讓第一証人駕駛藏有子彈的汽車，但明顯地他沒有放棄管有這輛汽車的意圖。從任何角度來看他也不可能有這樣的意圖，因為這輛汽車是屬於第二証人的；他亦沒有指示第一証人直接把汽車送交第二証人。故此，直到申請人將該輛汽車及藏於車內的子彈送達第二証人時，他仍是實質地管有着有關的子彈，所以他管有有關子彈的事實並不會因為他有轉贈的意圖而有所改變。" } }, { "doc_id": 74, "seg_id": 35, "translation": { "en": "Intent to possess", "zh-HK": "意圖管有" } }, { "doc_id": 74, "seg_id": 36, "translation": { "en": "As for the second ground of appeal, we are of the view that Deputy Judge Chan correctly held that the applicant had the intent to possess those bullets.", "zh-HK": "關於第二個上訴理由，本庭認為陳法官裁定申請人有管有這些子彈的意圖是正確的。" } }, { "doc_id": 74, "seg_id": 37, "translation": { "en": "Substantial reasons for verdict", "zh-HK": "判決的實質理由" } }, { "doc_id": 74, "seg_id": 38, "translation": { "en": "Deputy Judge Chan did not consider the applicant a credible witness, for the reason that his evidence on many of the crucial issues was not only contrary to common sense but also incredible, an example being his evidence that he had not read the terms of the arms licence carefully.", "zh-HK": "陳法官指申請人不是一個可令人相信的証人，理由是申請人就很多重要的證據所作出的證供不單有歪常理，更令人難以置信，其中一個例子是申請人指他沒有細看過槍牌的條款。" } }, { "doc_id": 74, "seg_id": 39, "translation": { "en": "The applicant’s third ground of appeal cannot be sustained. The Deputy Judge did not convict the applicant solely on the basis of what was said above; more importantly, as a matter of law, the applicant had all along been in possession of the bullets in question. As he never acted on his intention to give the bullets to PW2 as a gift, he had all along been in possession of the bullets.", "zh-HK": "本庭不接納申請人的第三個上訴理由。陳法官不只是根據上述所說的去裁定申請人罪名成立；而更重要的是在法理上申請人一直是管有着有關的子彈，他有轉贈子彈給第二証人的意圖從未付諸實行，故此他一直是管有着有關的子彈的。" } }, { "doc_id": 74, "seg_id": 40, "translation": { "en": "Motive or purpose of possession", "zh-HK": "管有的動機或目的" } }, { "doc_id": 74, "seg_id": 41, "translation": { "en": "On the fourth ground of appeal, the applicant contends that the prosecution had no evidence showing that he had a motive, benefit or purpose in possessing the ammunition in question. In our view, even if the applicant had no motive or benefit, it would not constitute a defence since the key issue in the present case was whether in law the applicant was in possession of the ammunition.", "zh-HK": "關於第四點上訴理由，申請人指控方沒有任何證據可顯示他管有有關彈藥的動機、利益或目的。本庭認為就算申請人沒有動機或利益也不會構成任何免責理由，因為本案的關鍵是申請人在法律上是否管有有關的彈藥。" } }, { "doc_id": 74, "seg_id": 42, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 74, "seg_id": 43, "translation": { "en": "In our judgment, Deputy Judge Chan has correctly convicted the applicant of possessing the ammunition in question. The application for leave to appeal against conviction is accordingly dismissed.", "zh-HK": "本庭認為陳法官裁定申請人管有有關彈藥是正確的，故此本庭駁回針對定罪的申請。" } }, { "doc_id": 74, "seg_id": 44, "translation": { "en": "Application for leave to appeal against sentence", "zh-HK": "判刑申請" } }, { "doc_id": 74, "seg_id": 45, "translation": { "en": "Deputy Judge Chan considered the present case serious in that, given the ammunition in question was hidden in the boot of a car driven by a third party, the risk or possibility of the ammunition falling into the hands of criminals could not be discounted. He considered that the only appropriate sentence in the present case was immediate imprisonment.", "zh-HK": "陳法官認為本案的嚴重性在於有關的彈藥被收藏於一輛由第三者駕駛的車輛的行李箱內，有關彈藥落到不法份子手上的危險性或可能性是不可被抹煞的。陳法官認為本案唯一的適當判刑是即時監禁。" } }, { "doc_id": 74, "seg_id": 46, "translation": { "en": "The case of Chan Chi Fun", "zh-HK": "陳志勳案例" } }, { "doc_id": 74, "seg_id": 47, "translation": { "en": "In HKSAR v. Chan Chi Fun [2006] 1 HKLRD 128, this Court (Woo V-P and Yuen JA) reviewed a number of decided cases and then said:", "zh-HK": "在香港特別行政區訴陳志勳 [2006] 1 HKLRD 128，本庭（上訴法庭胡國興副庭長及袁家寧法官）在考慮過多宗案例之後這樣說：" } }, { "doc_id": 74, "seg_id": 48, "translation": { "en": "From the above cases, the factors that go to the mitigation or aggravation of a sentence can be summarized as follows:", "zh-HK": "從上述的案例看來，求情或減刑因素，而反之則是使案件嚴重化的因素，可歸納為以下幾點：" } }, { "doc_id": 74, "seg_id": 49, "translation": { "en": "the types of arms and ammunition involved;", "zh-HK": "槍械及彈藥的類型；" } }, { "doc_id": 74, "seg_id": 50, "translation": { "en": "whether the defendant physically carried the arms and ammunition;", "zh-HK": "被告人是否在身上攜帶槍械及彈藥；" } }, { "doc_id": 74, "seg_id": 51, "translation": { "en": "whether the arms were loaded;", "zh-HK": "槍械是否裝上子彈；" } }, { "doc_id": 74, "seg_id": 52, "translation": { "en": "whether the arms had been used;", "zh-HK": "槍械是否有使用過；" } }, { "doc_id": 74, "seg_id": 53, "translation": { "en": "whether the defendant intended to use the arms for illegal purposes;", "zh-HK": "是否有意圖用槍械作非法用途；" } }, { "doc_id": 74, "seg_id": 54, "translation": { "en": "whether the arms and ammunition were properly stored or whether they were easily accessible by criminals;", "zh-HK": "槍械及彈藥是否收藏好，或是否容易被歹徒得到；" } }, { "doc_id": 74, "seg_id": 55, "translation": { "en": "whether the defendant has a clear record.", "zh-HK": "被告人是否有犯罪紀錄。" } }, { "doc_id": 74, "seg_id": 56, "translation": { "en": "The basis for sentencing in respect of this type of offence is abundantly clear. The level of sentence depends on the court’s assessment of the potential risk posed by the arms and ammunition in the defendant’s possession, taking into account the circumstances of the case and the defendant’s background, and the possibility of the arms and ammunition in question being used. If the defendant had the arms on his body or carried the arms and they were loaded with live ammunition, and the arms had been used, then the starting point upon conviction after trial should be 12 years’ imprisonment …", "zh-HK": "這類案件判刑的理據很清楚，刑罰的輕重端視乎法庭就案情及被告人的身世及背景而估計他管有的槍械及彈藥的潛在危險的大小，及動用該槍械及彈藥可能性的大小。若被告人是身懷或攜帶槍械而槍械裝上實彈，而且槍械亦曾用過，則經審訊後被定罪者的量刑基準應為 l2 年監禁…...’" } }, { "doc_id": 74, "seg_id": 57, "translation": { "en": "The prosecution and the defence agreed at the hearing of the appeal that the bullets involved can only be used with the five handguns that the applicant had given to the gun club by way of gift. There is no evidence to show that the applicant had the intention to sell those bullets illegally to undesirable characters for criminal purposes. Nor is there any evidence to show that those bullets would serve any purpose in the hands of criminals. On the contrary, there is indeed evidence to show that the applicant had told PW2 prior to the offence that he would give that batch of bullets to him as a gift. In the absence of evidence to the contrary, we are of the view that the sentence is to be determined on the basis of the intention asserted by the applicant. In light of the nature of the case, we consider an imprisonment for one year a more appropriate sentence. The applicant started to serve the sentence on 5 June 2007 and has to date served approximately 9 months of the substantive sentence. Generally speaking, the court is prepared to reduce a prisoner’s sentence by one-third on account of his good behaviour in prison. On this basis, the applicant has already served a one-year term of imprisonment. In our judgment, the best approach is to vary the sentence so that the applicant can be released immediately. We allow the application and, treating the application as the appeal, vary the sentence of 3-year imprisonment to an order for the immediate release of the applicant.", "zh-HK": "控辯雙方在上訴聆訊時同意涉案的子彈只是適用於申請人贈送給槍會的五支手槍。本案並無任何證據顯示申請人有將涉案子彈非法販賣給不法份子犯罪的意圖。更沒有證據顯示涉案子彈在歹徒手中會有用場，反之，本案的確有證據顯示申請人曾經在案發前對第二証人說過他會將該批子彈轉贈給他。在無相對的證據的情況之下，本庭認為必須根據申請人聲稱的意圖作出量刑。本庭認為以本案的性質來看，一年監禁的刑期是較為適合的。申請人是在　2007 年 6 月 5 日開始服刑，至今已服滿了約九個月的實質刑期。一般來說，法庭會因犯人在服刑期間行為良好扣減其三分之一刑期；若以這情況來計算申請人的刑期，他已經服滿了一年的刑期。本庭認為最適當的做法是更改刑期，讓申請人可即時出獄。本庭批准申請，視申請為正式上訴及將三年監禁的刑期更改為申請人可即時釋放的命令。" } }, { "doc_id": 74, "seg_id": 58, "translation": { "en": "Mr. Alex Lee, Senior Assistant Director of Public Prosecutions, for the HKSAR.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員李運騰代表。" } }, { "doc_id": 74, "seg_id": 59, "translation": { "en": "Mr. Peter Chow, assigned by the Legal Aid Department, for the applicant.", "zh-HK": "申請人：由法律援助處署派周柏柱大律師代表。" } }, { "doc_id": 75, "seg_id": 1, "translation": { "en": "Barnes J (giving the judgment of the Court):", "zh-HK": "原訟法庭法官張慧玲頒發上訴法庭判案書：" } }, { "doc_id": 75, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 75, "seg_id": 3, "translation": { "en": "On 9 May 2012, the applicant was found guilty of the charge of “trafficking in a dangerous drug” by a jury sitting with Madam Justice M Poon in the Court of First Instance and sentenced to a term of 20 years’ imprisonment. The applicant sought leave to appeal both conviction and sentence. She was represented by Mr Charles Chan of counsel in the application for leave to appeal against conviction and acted in person in her application for leave to appeal against sentence.", "zh-HK": "於2012 年5 月9 日，申請人在原訟法庭法官潘‍敏‍琦席前被陪審團裁定一項「販運危險藥物」罪罪名成立，被判監20 年。申請人不服定罪及判刑，提出上訴許可申請。就定罪上訴許可申請，申請人由陳‍永‍豪大律師代表，就判刑申請人則無律師代表。" } }, { "doc_id": 75, "seg_id": 4, "translation": { "en": "At the conclusion of the hearing, we granted the applicant leave to appeal conviction and treated it as the appeal hearing, and we dismissed her appeal.", "zh-HK": "本庭在聆訊後，批准申請人就定罪提出的上訴許可申請，並視之為正式上訴。本庭駁回上訴。" } }, { "doc_id": 75, "seg_id": 5, "translation": { "en": "We dismissed the applicant’s application for leave to appeal sentence.", "zh-HK": "本庭駁回申請人就判刑提出的上訴許可申請。" } }, { "doc_id": 75, "seg_id": 6, "translation": { "en": "Here are our reasons.", "zh-HK": "以下是本庭的理由。" } }, { "doc_id": 75, "seg_id": 7, "translation": { "en": "Prosecution Case", "zh-HK": "控方案情" } }, { "doc_id": 75, "seg_id": 8, "translation": { "en": "The prosecution case, in simple terms, was that on the day in question the applicant arrived at the Hong Kong International Airport on a flight from Kuala Lumpur and was then intercepted by Customs officers. Customs officers inspected the rucksack that the applicant was carrying, cut open the back of the rucksack and found a bag of powder. Subsequently, it was found to be 1 kg of a mixture containing 0.54 kg of heroin with a market value of about HK$680,000.", "zh-HK": "控方案情，簡而言之，是申請人在案發當日乘搭飛機從吉隆坡抵達香港國際機場後，被關員截查。關員搜查申請人揹著的背囊，在開背囊背部位置後找到一包粉末。其後證實為內含0.54 千克海洛英的1 千克混合劑，巿值約68 萬港元。" } }, { "doc_id": 75, "seg_id": 9, "translation": { "en": "The Customs officers arrested and cautioned the applicant. She indicated that she understood and had “nothing to say”.", "zh-HK": "關員拘捕及警誡申請人，申請人表示明白，她「無嘢講」。" } }, { "doc_id": 75, "seg_id": 10, "translation": { "en": "Subsequently, the applicant voluntarily attended a video-recorded interview held by the police. Under caution, she said that she had been asked by her boyfriend Terry (a black man) to go to Kuala Lumpur to get goods samples. This was not the first time, but the third time, that she went to Kuala Lumpur to get goods samples. Each time, the air tickets and accommodation were paid by Terry, and on each occasion, after arriving Kuala Lumpur, she contacted a black man called Paul.", "zh-HK": "其後申請人自願接受警方與她進行錄影會面。警誡下申請人指她是受她的男朋友Terry (一名黑人) 所託，前往吉隆坡取貨辦。是次已非申請人首次前往吉隆坡取貨辦，而是第3 次。每次機票、住宿費用是由Terry支付。每次她在抵達吉隆坡後與一名叫Paul的黑人男子聯絡。" } }, { "doc_id": 75, "seg_id": 11, "translation": { "en": "This time, Paul took her to buy brassieres as goods samples. Afterwards, he put the samples into the rucksack in question. The applicant did not thoroughly inspect the rucksack. She said that she had absolutely no idea of the presence of the heroin inside the rucksack, nor did she have any suspicion.", "zh-HK": "是次Paul帶她前往購買胸圍作貨辦。其後Paul將貨辦放入涉案背囊。申請人並無仔細查看背囊。申請人指她對背囊內有該包海洛英是毫不知情，亦從無任何懷疑。" } }, { "doc_id": 75, "seg_id": 12, "translation": { "en": "Defence case", "zh-HK": "辯方案情" } }, { "doc_id": 75, "seg_id": 13, "translation": { "en": "The applicant elected not to testify, nor did she call any witness.", "zh-HK": "申請人選擇不作供，亦不傳召證人。" } }, { "doc_id": 75, "seg_id": 14, "translation": { "en": "Grounds of appeal (against conviction)", "zh-HK": "上訴理由 (定罪)" } }, { "doc_id": 75, "seg_id": 15, "translation": { "en": "Mr Chan advanced the following two grounds to contend that the conviction was neither safe nor satisfactory.", "zh-HK": "陳‍大律師提出以下兩項上訴理由指定罪不穩妥。" } }, { "doc_id": 75, "seg_id": 16, "translation": { "en": "Ground (1)", "zh-HK": "理據 (一)" } }, { "doc_id": 75, "seg_id": 17, "translation": { "en": "The trial judge, in her directions to the jury, erred in raising the matter of whether “[the defendant], in facing some conspicuous circumstances, had deliberately disregarded, turned a blind eye and chosen not to ascertain? Was the defendant in fact tacitly aware of the presence of the dangerous drug?” It was extremely likely that the jury were led to misunderstand in the following ways:", "zh-HK": "原審法官錯誤地在引導陪審團時提出申請人是否「故意對一啲顯而易見嘅情況採取不聞不問、視若無睹，故意唔去核實嘅態度呢？被告係咪對毒品嘅存在其實係心知肚明呢？」導致陪審團極有可能有以下誤會：" } }, { "doc_id": 75, "seg_id": 18, "translation": { "en": "that the fact that the applicant did not inspect was equivalent to her having the knowledge;", "zh-HK": "申請人不作查證等同於知情；" } }, { "doc_id": 75, "seg_id": 19, "translation": { "en": "that the fact that the applicant knew having the rucksack containing the dangerous drug in question handed to her involved a crime meant that she was aware that the crime was trafficking in a dangerous drug; and", "zh-HK": "申請人知道把藏有涉案毒品的背囊交託她是牽涉有罪行便等同她知道該罪行是販毒；及" } }, { "doc_id": 75, "seg_id": 20, "translation": { "en": "that her reasonable suspicion was equivalent to knowledge.", "zh-HK": "她有合理懷疑便等同知情。" } }, { "doc_id": 75, "seg_id": 21, "translation": { "en": "Mr Chan complained against the following directions the judge gave to the jury on the first day (appeal bundle pages 18U to 19D):", "zh-HK": "陳‍大律師投訴潘‍法官在第一天向陪審團作出的以下指引 (上訴文件冊第18 頁U 行至19 頁D 行)：" } }, { "doc_id": 75, "seg_id": 22, "translation": { "en": "“Mr Chan for the defence said in his submission that Terry, as a drug trafficker, would absolutely in no way want his courier to know that what was being delivered was dangerous drug, and therefore he might not have told the courier, ‘I give some dangerous drug to you for delivery.’ However, you may also exercise your common sense to think about this. Sometimes, it is not necessary to make everything clear verbally and people just understand each other tacitly. Things may be understood tacitly and simply does not need to be made clear verbally. You may consider whether the defendant, in facing some conspicuous circumstances, had deliberately disregarded, turned a blind eye and chosen not to ascertain? Was the defendant in fact tacitly aware of the presence of the dangerous drug? Are you satisfied that there is no reasonable doubt? No matter it is by common sense or on the facts, the only reasonable inference is that the defendant knew that there was dangerous drug inside the rucksack.” (emphasis added)", "zh-HK": "「辯方陳大律師陳詞嘅時候就話，以Terry作為一個毒販而言，佢係絕對唔會想同佢運送嘅人知道佢帶緊毒品喇，所以未必會話畀嗰個人聽，『我畀啲毒品你帶呀。』咁。但係各位又可以運用你哋嘅常識諗下喇，有啲嘢唔一定係需要宣之於口嘅，大家心照不宣，唔需要以口明言，都會心照不宣嘅。你哋可以考慮下被告係咪故意對一啲顯而易見嘅情況採取不聞不問、視若無睹，故意唔去核實嘅態度呢？被告係咪對毒品嘅存在其實係心知肚明呢？大家係咪可以毫無合理疑點咁滿意？無論以一般常識上或者事實上而言，唯一合理嘅推論係被告係知道背囊入面有毒品。」 (本庭加以強調)" } }, { "doc_id": 75, "seg_id": 23, "translation": { "en": "Firstly, Mr Chan complained that after stating the defence position, the judge immediately refuted it and attacked what the defence had said, and on the contrary, did not give any comment on what the prosecution had said.", "zh-HK": "首先，陳‍大律師投訴指潘‍法官在道出辯方立場後便立即加以反駁，評擊辯方說法，但無就控方的說法加以評論。" } }, { "doc_id": 75, "seg_id": 24, "translation": { "en": "Secondly, by saying “no matter it is by common sense or on the facts, the only reasonable inference is that the [applicant] knew that there was dangerous drug inside the rucksack” in form of a statement, the judge established that the observation in this regard was more important than other details or features in the case.", "zh-HK": "第二是潘‍法官以陳述式說「無論以一般常識上或者事實上而言，唯一合理嘅推論係 [申請人] 係知道背囊入面有毒品」，確立了這方面的觀察比案件中其他的細節或特點更為重要。" } }, { "doc_id": 75, "seg_id": 25, "translation": { "en": "Mr Chan cited the case of The Queen v Law Wai Choi & Another [1997] HKLRD 555 and said that deliberate disregard merely “may” be inferred as, but was not an alternative to, a defendant’s knowledge of the content of the packet in his possession. The phrase “only reasonable” used by the judge suggested that failure to inspect must be tantamount to knowing, which was a misdirection to the jury.", "zh-HK": "陳‍大律師引述案例The Queen v Law Wai Choi & Another [1997] HKLRD 555，刻意的不聞不問祇是「可以」(may) 推論一名被告人知道他管有的包裹的內容，但不等同被告人一定知情。潘‍法官用「唯一合理」此言顯示了不查看必然是知情，錯誤引導陪審團。" } }, { "doc_id": 75, "seg_id": 26, "translation": { "en": "Mr Chan also pointed out that in the present case, the applicant had not disregarded, and that although she did not see how Paul put the brassieres into the rucksack, she did see that there were samples of brassieres inside. It was extremely likely that the directions given by the judge would have caused the jury to miss out some reasonable grounds on which the applicant had not inspected the rucksack and to treat the applicant’s failure to inspect the rucksack with reasonable time and opportunities directly as the rationale of her having knowledge of the presence of dangerous drug inside the rucksack.", "zh-HK": "陳‍大律師亦指在本案而言，申請人亦非不聞不問，申請人雖無看見Paul將胸圍放進背囊的過程，但她看到背囊內確有胸圍貨辦。潘‍法官的引導極可能令陪審圍忽略了一些合理原因，令申請人不查證背囊，而將申請人在有合理時間及機會的情況下不對背囊查證此行為，直接視為申請人是知悉背囊內藏毒品的理據。" } }, { "doc_id": 75, "seg_id": 27, "translation": { "en": "Mr Chan also complained that the judge had failed to point out to the jury that it might be due to the following reasons that the applicant had not checked thoroughly:", "zh-HK": "陳‍大律師亦投訴潘‍法官沒有向陪審團指出申請人有可能因下列理由不作詳細檢查：" } }, { "doc_id": 75, "seg_id": 28, "translation": { "en": "the applicant and Terry were in a boyfriend and girlfriend relationship and so would not ask too much;", "zh-HK": "申請人與Terry是男女朋友關係，因此不會多問；" } }, { "doc_id": 75, "seg_id": 29, "translation": { "en": "this was the third time that the applicant had contact with Paul, and a rucksack and brassieres had been involved previously;", "zh-HK": "申請人已是第三次與Paul接頭，以前亦曾涉及背囊及胸圍；" } }, { "doc_id": 75, "seg_id": 30, "translation": { "en": "the applicant saw the brassieres inside the rucksack;", "zh-HK": "申請人見到背囊內的胸圍；" } }, { "doc_id": 75, "seg_id": 31, "translation": { "en": "the applicant was not good in English and did not really understand what Paul said when dealing with the rucksack; and", "zh-HK": "申請人英語不好，不太明白Paul在處理背囊時所說的話；及" } }, { "doc_id": 75, "seg_id": 32, "translation": { "en": "there were specific background and reasons for which the applicant did not thoroughly check or ask, and it was not that she simply disregarded without any basis.", "zh-HK": "申請人無作仔細檢查或查問有其個別背景原因，不是毫無原因的充耳不聞。" } }, { "doc_id": 75, "seg_id": 33, "translation": { "en": "Mr Chan also submitted that it was extremely likely that the judge’s directions would have caused the jury to misunderstand that “if the applicant should have had reasonable doubt on the presence of dangerous drug inside the rucksack, it means that the applicant was in fact aware of the presence of the dangerous drug”. He said that the judge should have explained to the jury that even if they accepted the applicant had disregarded this matter, they still had to be sure of the relation between such “disregard” and “knowledge”.", "zh-HK": "陳‍大律師指潘‍法官的引導極有可能令陪審團誤以為「假如申請人應對背囊內是否藏有毒品產生合理懷疑就等同申請人實際上知道毒品的存在」。他指潘‍法官應向陪審團說明即使他們接受申請人不聞不問，他們亦須肯定申請人此「不聞不問」與「知情」的關係。" } }, { "doc_id": 75, "seg_id": 34, "translation": { "en": "Our consideration", "zh-HK": "本庭作出的考慮" } }, { "doc_id": 75, "seg_id": 35, "translation": { "en": "Firstly, with respect, we do not agree that the judge had, as alleged by the applicant, refuted or attacked the defence immediately after referring to the defence counsel’s submissions. The judge just pointed out that generally speaking, sometimes there was “tacit understanding” and it might not be necessary to make things clear verbally. The judge said that the jury might consider whether the applicant had deliberately, in facing some conspicuous circumstances, disregarded and chosen not to ascertain, and whether the applicant was tacitly aware of the presence of the dangerous drug. These are findings of facts for the jury to decide.", "zh-HK": "首先，本庭不認同上訴一方指潘‍法官在道出辯方大律師的陳詞後立刻反駁、評擊辯方說法。潘‍法官祇是指出以常理而言，有時候是有「心照不宣」的情況，不一定要明言。潘‍法官指陪審團可以考慮申請人是否故意對一些顯而易見的情況不聞不問，故意不去核實，又或申請人是否對毒品的存在一事心知肚明？這些是事實的裁定，由陪審團決定事實為何。" } }, { "doc_id": 75, "seg_id": 36, "translation": { "en": "In respect of Mr Chan’s contention that the judge had said in the form of a statement that the only reasonable inference was that the applicant was aware of the presence of the dangerous drugs in the rucksack, with respect, we do not accept. When the passage is read in context, it should not be a question mark after “are you satisfied that there is no reasonable doubt” because the sentence has yet come to an end. The whole sentence was that the judge was pointing out to the jury whether they could be satisfied beyond reasonable doubt that, as a matter of common sense or on the facts, the only reasonable inference was that the applicant knew that there was dangerous drug in the rucksack. The judge was not saying that the only reasonable inference must be that the applicant had the knowledge.", "zh-HK": "就陳‍大律師指潘‍法官以陳述式說唯一合理推論是申請人知悉背囊內有毒品，本庭不接納此論點。縱觀上文下理，在「大家係咪可以毫無合理疑點咁滿意」後不應有問號，因句子尚未完成，整句說話是潘‍法官向陪審團指出，他們能否在毫無合理疑點下滿意無論在一般常識或事實上，申請人知悉背囊內有毒品是唯一合理推論。潘‍法官不是指申請人知情必定是唯一合理推論。" } }, { "doc_id": 75, "seg_id": 37, "translation": { "en": "Having considered that the judge had already given directions to the jury on the onus and standard of proof and pointed out clearly to the jury that the prosecution must prove the applicant knew of the presence of dangerous drug inside the rucksack, and that “mere suspicion is not enough”, she in fact did not direct the jury that failure to inspect under reasonable circumstances was equivalent to having knowledge. In our view, the jury would not misunderstand that the applicant’s failure to inspect was tantamount to having the knowledge.", "zh-HK": "在考慮了潘‍法官在較早前已向陪審團作出有關舉證責任及標準的指引，及明確向陪審團指出控方必須證明申請人知悉背囊內有毒品，「淨係懷疑都唔足夠喎」，潘‍法官並無指引陪審團若申請人在有合理情況下仍不作查證便等同她是知情。本庭亦不認為陪審團會誤以為若申請人不作查證便等同她是知情。" } }, { "doc_id": 75, "seg_id": 38, "translation": { "en": "Furthermore, although the judge did not sum up the reasons for the applicant’s failure to inspect, as what Mr Chan has done, viewing the summing up as a whole, the judge had summarized the defence case (including the facts favourable to the defence) to the jury concisely. She was not biased towards the prosecution and did state the cases of both sides clearly to the jury.", "zh-HK": "再者，雖然潘‍法官並無如陳‍大律師陳詞般將申請人不作查問的理由歸納在一起，但縱觀整篇總結指引，潘‍法官有扼要將辯方案情 (包括對辯方有利的案情) 告知陪審團。潘‍法官亦無偏幫控方，她將控辯雙方的說法清楚向陪審團道出。" } }, { "doc_id": 75, "seg_id": 39, "translation": { "en": "We would like to take this opportunity to say that although in cases involving dangerous drugs, proof of “constructive knowledge” on the part of the defendant by the prosecution is sufficient to show the defendant’s knowledge, as Bokhary JA (as he then was) pointed out in the above case of Law Wai Choi (at page 561D), such knowledge of a material circumstance is rarely relevant and its relevance is confined to rare cases.", "zh-HK": "本庭在此一提，雖然在毒品案件，若控方能證實被告人有「推定知情」(constructive knowledge) 是可足以顯示被告人知情，但正如當時仍是上訴庭法官的包‍致‍金法官在上述Law Wai Choi (第561 頁D 行) 指出，「推定知情」有關鍵性的情況是罕見旳，而有關鍵性此情況亦局限於少數案件 (But such knowledge is rarely relevant. And its relevance is confined to rare cases …)。" } }, { "doc_id": 75, "seg_id": 40, "translation": { "en": "If all the circumstances faced by a defendant were very suspicious and he deliberately shut his eyes to the circumstances at the material time, it might be construed that he had the knowledge but this is not necessarily the only finding (see R v Griffiths (Leslie George) (1974) 60 Cr App R 14).", "zh-HK": "若一名被告人面對的所有情況是非常可疑，而他故意對當時的情況視若無睹 (shut his eyes)，他可以被裁斷為知情，但這並非必然的裁斷 (參閱案例R v Griffiths (Leslie George) (1974) 60 Cr App R 14)。" } }, { "doc_id": 75, "seg_id": 41, "translation": { "en": "Since “constructive knowledge” is rarely involved in dangerous drugs cases, unless the facts clearly showed that the defendant had deliberately turned a blind eye to the suspicious circumstances, it is not appropriate for judges to give general directions to the jury on “constructive knowledge”.", "zh-HK": "基於毒品案件涉及「推定知情」的情況並不常見，因此除非案情明確顯示被告人是故意對可疑的情況視若無睹，法官不宜向陪審團作出有關「推定知情」的一般指引。" } }, { "doc_id": 75, "seg_id": 42, "translation": { "en": "This ground of appeal fails.", "zh-HK": "此上訴理由不成立。" } }, { "doc_id": 75, "seg_id": 43, "translation": { "en": "Ground (2)", "zh-HK": "理據 (二)" } }, { "doc_id": 75, "seg_id": 44, "translation": { "en": "The trial judge erred in saying that in the present case, “the record of interview contains parts incriminating (the applicant)”, which is extremely likely to have caused the jury to misunderstand that:", "zh-HK": "原審法官錯誤地指本案的「會面紀錄入面包含咗顯示 (申請人) 有罪嘅部份」，令陪審團極可能誤以為：" } }, { "doc_id": 75, "seg_id": 45, "translation": { "en": "the content of the record of interview (exhibit P33) really suggested that the applicant had admitted her guilt or reflected she was guilty;", "zh-HK": "會面紀錄 (證物P33) 的內容真的代表申請人承認有罪或反映她有罪；" } }, { "doc_id": 75, "seg_id": 46, "translation": { "en": "the incriminating part in the mixed statement has definitely represented or included all elements of the offence; and", "zh-HK": "混合供詞的罪已部分一定代表或包含所有罪行元素；及" } }, { "doc_id": 75, "seg_id": 47, "translation": { "en": "taking the whole directions together into the consideration, the jury were actually only required to consider if the explanations in exhibit P33 were credible or might be credible and were not required to consider if there was any doubt in the prosecution case.", "zh-HK": "連同整個引導詞在考慮，陪審團實則祇須處理申請人在證物P33中的解釋是否可信或可能可信，而無須考慮控方的案情是否內含疑點。" } }, { "doc_id": 75, "seg_id": 48, "translation": { "en": "Mr Chan complained that the judge had failed to point out to the jury that the applicant simply exercised her right when she had “nothing to say” under arrest and caution at the airport. Since the judge had on the first day of the directions criticized the applicant for “disregarding”, the jury might view the applicant’s not responding upon being arrested unfavourably against her.", "zh-HK": "陳‍大律師投訴潘‍法官未有向陪審團指出申請人在機場被捕及警誡下她「冇嘢講」是她的權利。基於潘‍法官在首天的引導詞評擊申請人「不聞不問」，申請人在被捕後不作回應，此舉可能令陪審團對申請人有不利的想法。" } }, { "doc_id": 75, "seg_id": 49, "translation": { "en": "Mr Chan in particular criticized the judge for saying that the record of interview “contained parts incriminating her”. He submitted that it was extremely likely that such remark would cause the jury to misunderstand that the applicant had admitted her guilt during the interview or that the content of the interview reflected that she was guilty. It is an undisputed fact that dangerous drug was found inside the rucksack carried by the applicant. The content of the record of interview, apart from the undisputed facts, did not contain anything showing the applicant’s knowledge of the drug. Such misdirection given by the judge was extremely likely to have caused the jury to misunderstand that the parts of the record the judge had pointed out to them must support the inference of the applicant’s knowledge of the dangerous drug, or that the contents of the interview must contain parts representing the applicant’s “guilt”.", "zh-HK": "陳‍大律師特別批評潘‍法官指會面紀錄「包含咗顯示佢有罪嘅部份」極可能令陪審團誤以為申請人在會面時承認有罪或會面內容反映她有罪。申請人揹著的背囊內找到毒品是不爭的事實，會面紀錄的內容除了包括控辯雙方不爭議的事實外，並無任何顯示申請人對毒品知情的內容。潘‍法官此錯誤引導，極可能令陪審團誤以為潘‍法官向他們指出紀錄的內容部分，必然支持推定申請人對毒品知情，或陪審團以為會面內文一定有代表申請人「有罪」的部分。" } }, { "doc_id": 75, "seg_id": 50, "translation": { "en": "Mr Chan also complained that the judge had failed to point out the applicant’s good character would tend to enhance the credibility of what the applicant had said in the record of interview.", "zh-HK": "陳‍大律師亦投訴潘‍法官沒有向陪審團指出申請人的良好品格，有助於申請人在會面紀錄所言的可信性。" } }, { "doc_id": 75, "seg_id": 51, "translation": { "en": "Finally, Mr Chan submitted that the judge, in directing the jury, stated that if they thought that what the applicant had said was true, or might be true, or cast doubt on the prosecution case, they should find the applicant not guilty. As a result of this statement, the jury might misunderstand that they were only required to consider if what the applicant had said in the record of interview was credible or might be credible and not required to consider if there was any doubt in the prosecution case.", "zh-HK": "最後，陳‍大律師指潘‍法官引導陪審團若他們認為申請人所言屬實或可能屬實，又或她所言令陪審團對控方案情有疑點，便須判申請人無罪，導致陪審團可能誤會他們祇須處理申請人在會面紀錄所言是否可信或可能可信，而無須考慮控方的案情是否內含疑點。" } }, { "doc_id": 75, "seg_id": 52, "translation": { "en": "Our considerations", "zh-HK": "本庭作出的考慮" } }, { "doc_id": 75, "seg_id": 53, "translation": { "en": "The judge gave directions as follows (pages 21S to 22G in the appeal bundle):", "zh-HK": "潘‍法官的指引如下 (上訴文件冊第21 頁S 行至22 頁G 行)：" } }, { "doc_id": 75, "seg_id": 54, "translation": { "en": "“You would remember that the defendant has not committed any offence, and has no criminal record and no conviction before this incident. Of course, good character cannot by itself provide a defence to a criminal charge, but it is evidence which you should take into account in her favour in the following ways. In the first place, although the defendant has elected not to give evidence before you, she did, as you know, give an explanation to the Customs in the interview. The defendant’s statement to the Customs officers, namely the record of interview, contains incriminating parts and explanations and excuses. You must consider the whole of the statement in deciding where the truth lies. You may feel that the incriminating parts are more likely to be true – for why else would she have made them[?] Or you may feel that there is less weight to be attached to her excuses and explanations, for they were not made on oath, or have not been repeated under oath, and have not been tested by cross-examination. The final question is your assessment on the whole of the record of interview. You ought to have a very comprehensive consideration of the contents before deciding which part is credible, which part is not credible, or all are credible, or all are not credible.", "zh-HK": "「你哋會記得被告喺呢件事之前冇犯事、冇刑事紀錄、冇前科。當然良好品格本身並不能作為刑事控罪嘅免責辯護理由，但係卻係你哋應該視為對被告有利嘅證據，而應該用以下嘅方式處理，首先，雖然被告選擇不在你哋面前作供，但係正如你哋所知，佢喺會面入面有向關員作出解釋，而被告向關員所作出嘅陳述，即係嗰個會面紀錄入面包含咗顯示佢有罪嘅部分，以及一啲解釋、辯解嘅部分，你哋必須考慮陳述嘅全部內容，以找出真相。你哋或者會覺得顯示佢有罪嘅部分屬真實嘅機會較大，如果唔係，佢點會咁講。又或者你哋會認為嗰啲辯解、解釋嘅部分可以不必過份重視，因為嗰啲辯解嘅部分唔係喺宣誓之下作出嘅，亦並非喺宣誓之下重申嘅，同時亦都冇透過盤問嚟驗證，最後嘅問題都係你哋對嗰個錄影會面紀錄整體內容嘅評估，你哋要好全面咁樣考慮內容先至決定邊一部分可信，邊一部分唔可信，抑或全部都可信，抑或全部都唔可信。" } }, { "doc_id": 75, "seg_id": 55, "translation": { "en": "In considering the weight to be attached to the excuses, namely the explanations, you should bear in mind that these explanations were made by a person of good character, meaning that she had not committed any crime before, and take that into account when deciding whether you can believe them. In the second place, the fact that the defendant is of good character may mean that she, as a person who has not committed any crime, is less likely than otherwise might be the case to commit this crime, however, I have to emphasize that for these matters which are in the defendant’s favour, it is entirely up to you to decide how much regard you should have and what weight you should give.” (Emphasis added)", "zh-HK": "你哋喺考慮入面嘅辯解，即係解釋部分方面，重視嘅程度嘅時候，應該緊記呢啲解釋係具有品格良好嘅人作出嘅解釋，因為佢之前冇犯事吖嘛，咁你哋決定係咪相信呢啲解釋嘅時候，應該顧及呢一點。其次，被告良好品格，作為一個從未行差踏錯過嘅人呢一點可能意味住佢干犯本案有關嘅控罪嘅可能性會比一個冇具有良好品格嘅人為低，但係我強調，你哋對呢啲有利於被告嘅事項有幾重視、給予幾多比重，全部由你哋自行決定。」 (本庭加以強調)" } }, { "doc_id": 75, "seg_id": 56, "translation": { "en": "It is true that the directions that the judge gave to the jury on the record of interview are similar to the specimen directions issued by the Judicial Studies Board, however, in respect of the facts in the present case, the phrase “contains incriminating parts” adopted by the judge may not be absolutely suitable and appropriate. It is to be noted that the applicant in the present case did not dispute that a pack of dangerous drug had been found from the rucksack carried by her, and her defence was that she had absolutely no knowledge of the presence of that pack of dangerous drug inside the rucksack. The applicant did not, in the record of interview, admit that she knew the presence of that pack of stuff or of a pack of dangerous drug inside the rucksack. The judge was only required to give directions on the exculpatory explanations given by the applicant.", "zh-HK": "誠然，潘‍法官就會面紀錄向陪審團作的指引跟司法人員培訓委員會發出以供參考的陪審團指引相若，但以本案案情而言，潘‍法官採用了「顯示被告人有罪的部份」並不完全恰當貼切。須知在本案申請人不爭議關員在她揹著的背囊找到一包毒品，她的答辯理由是她根本不知該包毒品藏在背囊內。申請人沒有在會面紀錄中承認她知悉背囊內有該包東西存在，或她知悉背囊內有一包毒品。潘‍法官祇須就申請人所作的開脫解釋作出指引。" } }, { "doc_id": 75, "seg_id": 57, "translation": { "en": "The specimen directions issued by the Judicial Studies Board are intended to assist judges, and judges are required to adapt them suitably with reference to the facts and evidence of the individual case. Very often, using “parts incriminating the defendant” is not suitable and “parts unfavourable to the defendant” would be more appropriate.", "zh-HK": "司法人員培訓委員會發出的有關指引旨在協助法官，但法官必須因應個別案件將基本指引加以適當調整，使指引更能配合案情證據。本庭認為很多時候，用「顯示被告有罪的部份」並不恰當，可能用「對被告人不利的部份」會較為貼切。" } }, { "doc_id": 75, "seg_id": 58, "translation": { "en": "Nevertheless, viewing the case as a whole, the judge had clearly pointed out to the jury the cases of both sides and the explanations given by the applicant in the record of interview. She had also correctly directed the jury as to how to deal with the answers given by the applicant in the record of interview. In our view, although the phrase “parts incriminating [the applicant]” was used in the directions, the impact was not significant as far as the present case is concerned.", "zh-HK": "不過，整體而言，潘‍法官已清晰地向陪審團指出控辯雙方的立場、申請人在會面紀錄內所作的解釋，她亦正確指引陪審團如何處理申請人在會面紀錄給予的答案。本庭認為雖然指引用了「顯示 [申請人] 有罪的部份」這詞，在本案而言，影響不大。" } }, { "doc_id": 75, "seg_id": 59, "translation": { "en": "As to the judge’s failure to point out to the jury specifically that the applicant had the right to remain silent in respect of her saying having “nothing to say” at the time of arrest, we are of the view that in all circumstances of the present case – in particular that the applicant had attended the video-recorded interview and answered questions voluntarily, the fact that the judge did not specifically point out that it was the applicant’s right to remain silent is not essential here.", "zh-HK": "就申請人在被捕時說「冇嘢講」而潘‍法官無特別向陪審團指出申請人有權保持緘默，本庭認為以本案所有情況而言 — 尤其是申請人自願在警誡下接受錄影會面、回答問題，潘‍法官無特別向陪審團指出申請人有保持緘默此權利，在本案是無關重要的。" } }, { "doc_id": 75, "seg_id": 60, "translation": { "en": "Finally, with respect, we do not agree with Mr Chan that the judge misdirected the jury in respect of the applicant’s clear record.", "zh-HK": "最後，本庭不認同陳‍大律師指潘‍法官就申請人無刑事紀錄此範疇向陪審團的指引有錯誤之處。" } }, { "doc_id": 75, "seg_id": 61, "translation": { "en": "The judge, after pointing out that the applicant had a clear record and no previous conviction, stated that although the applicant had not testified in court, she had given answers in the record of interview. In directing the jury on considering the applicant’s explanations and how much weight should be attached, the judge told them to bear in mind that the explanations came from the applicant who was of good character, and that they should take that into account in deciding whether to believe the applicant’s explanations. So obviously, the judge had given directions on the positive effect of the applicant’s good character on the credibility of her explanations in the record of interview.", "zh-HK": "潘‍法官在指出申請人先前無犯事、無前科後，繼而指出申請人雖無出庭作證，但曾在會面記錄作答，潘‍法官引導陪審團在考慮申請人的解釋及是否給予重視時，須緊記有關解釋來自一名品格良好的申請人，他們在決定是否相信申請人的解釋時，應顧及申請人的良好品格，明顯潘‍法官已就申請人的良好品格有助於她在會面紀錄所作的解釋的可信性作出了指引。" } }, { "doc_id": 75, "seg_id": 62, "translation": { "en": "Mr Chan complained that the judge misdirected the jury by suggesting that the applicant’s explanations had to cast doubt on the prosecution case. With respect, we do not agree. The judge directed as follows (page 26N-Q in the appeal bundle):", "zh-HK": "就陳‍大律師所投訴潘‍法官錯誤引導陪審團，指要在申請人的解釋令他們對控方案情有疑點此論點，本庭亦不同意。潘‍法官的指引如下 (上訴文件冊第26 頁N 行至Q 行)：" } }, { "doc_id": 75, "seg_id": 63, "translation": { "en": "“Even if you are sure that the defendant’s explanations are not true, you cannot find her guilty right away, and you are required to consider the prosecution evidence carefully so that you are sure the defendant had knowledge of the dangerous drug before you can find her guilty. If, having considered all the evidence in the present case, you are of the view that what the defendant has said is true, or may be true, or what she has said cast doubt on the prosecution case, then you have to return a verdict of not guilty. You must be sure that the prosecution has proved beyond reasonable doubt that the defendant had the knowledge before you can find her guilty. If there is any reasonable doubt, the defendant must be given the benefit of such doubt and found not guilty.”", "zh-HK": "「如果各位認為被告嘅解釋肯定唔係事實嘅，你哋都唔可以即時判佢有罪，你哋需要小心考慮控方嘅證據，要確信被告對嗰啲毒品係知情嘅，先可以判佢罪名成立。如果你哋各位衡量過本案所有嘅證供之後，認為被告所講嘅嘢係真嘅，或者可能係真嘅，又或者佢所講嘅嘢令大家對控方嘅案情有疑點嘅話，你哋都要作出冇罪嘅裁決，你哋要肯定控方喺毫無合理疑點之下，證明被告確係知情，先至可以入佢罪，如果有合理嘅疑點，要將疑點嘅利益歸於被告，而判佢冇罪。」" } }, { "doc_id": 75, "seg_id": 64, "translation": { "en": "Obviously, the judge had correctly pointed out that the prosecution has to prove beyond reasonable doubt that the applicant had knowledge of the presence of the dangerous drug before she could be found guilty. We do not think that the jury would have misunderstood that they were only required to consider if the applicant’s explanations in the record of interview raised any doubt instead of whether there was any doubt in the prosecution case.", "zh-HK": "明顯潘‍法官正確指出控方必須在毫無合理疑點之下，證明申請人對毒品的存在是知情才可判她有罪。本庭不認為陪審團會誤以為他們祇須處理申請人在會面紀錄的解釋會否產生疑點，而不考慮控方案情是否有疑點。" } }, { "doc_id": 75, "seg_id": 65, "translation": { "en": "This ground of appeal also fails.", "zh-HK": "此上訴理由亦不成立。" } }, { "doc_id": 75, "seg_id": 66, "translation": { "en": "Ruling", "zh-HK": "裁定" } }, { "doc_id": 75, "seg_id": 67, "translation": { "en": "Since the grounds of appeal advanced by the applicant are not totally unarguable, in particular of the judge having told the jury the applicant’s record of interview contained “parts incriminating [the applicant]”, we granted the applicant leave to appeal against conviction. Nevertheless, we do not agree that the grounds are substantiated. In view of the above reasons, the appeal is dismissed.", "zh-HK": "由於上訴一方提出的上訴理據並非完全無爭拗之處，尤其是就潘‍法官向陪審團說申請人錄影會面內有「顯示 [申請人] 有罪的部份」此範疇，本庭批准申請人就定罪提出的上訴許可申請。不過，本庭不同意理據可以成立。基於上述理由，本庭駁回上訴。" } }, { "doc_id": 75, "seg_id": 68, "translation": { "en": "Ground of appeal against sentence", "zh-HK": "判刑上訴理據" } }, { "doc_id": 75, "seg_id": 69, "translation": { "en": "The applicant, acting in person, submitted that the sentence was excessive and reiterated she had been wrongly accused.", "zh-HK": "無律師代表的申請人陳詞指判刑太重，重申她是被冤枉的。" } }, { "doc_id": 75, "seg_id": 70, "translation": { "en": "Applicant’s background and submission in mitigation", "zh-HK": "申請人的背景及求情陳詞" } }, { "doc_id": 75, "seg_id": 71, "translation": { "en": "The applicant is aged 41, married, has a 15-year-old daughter with her husband. In mitigation, the defence submitted this was the first time that she broke the law and asked the judge for a lenient sentence.", "zh-HK": "申請人41 歲，已婚，與丈夫育有一名年15 歲的女兒。辯方求情時指申請人是首次鋌而走險犯案，希望潘‍法官輕判。" } }, { "doc_id": 75, "seg_id": 72, "translation": { "en": "Reasons for sentence", "zh-HK": "判刑理由" } }, { "doc_id": 75, "seg_id": 73, "translation": { "en": "Having recounted the facts of the case, the applicant’s background and submission in mitigation, the judge said that she adopted a starting point of 18½ years’ imprisonment after considering the type and nature of the dangerous drug, the facts of the case and the sentencing guidelines, and that since the case involved cross-border criminal activity which was an aggravating factor, the term had to be raised to 20 years. The applicant was convicted after trial and hence could not enjoy any discount on sentence. Therefore, the applicant was sentenced to a term of 20 years’ imprisonment.", "zh-HK": "潘‍法官道出案情、申請人的背景及求情陳詞後，指考慮了毒品的種類、性質、案情及量刑指引後，以18½ 年為量刑起點，因案情涉及跨境犯罪此加刑因素，將刑期向上調至20 年。申請人經審訊後被定罪，不獲減刑。故此判申請人監禁20 年。" } }, { "doc_id": 75, "seg_id": 74, "translation": { "en": "We have considered all the facts in the case and the applicant’s background and come to the view that although the sentence imposed by the judge can be said to be severe, it is not manifestly excessive. Therefore we dismiss the applicant’s application for leave to appeal her sentence.", "zh-HK": "本庭考慮了所有案情及申請人的背景後，認為潘‍法官的判刑雖可說是嚴峻，但並非明顯地過份嚴苛，因此本庭駁回申請人就判刑提出的上訴許可申請。" } }, { "doc_id": 75, "seg_id": 75, "translation": { "en": "Charles J Chan, instructed by Messrs To, Lam & Co, assigned by Director of Legal Aid, for the Applicant (appeal against conviction)", "zh-HK": "答辯人：由律政司高級檢控官招秉茵代表香港特別行政區" } }, { "doc_id": 75, "seg_id": 76, "translation": { "en": "Yang Yulan, the Applicant, in person (appeal against sentence)", "zh-HK": "申請人：由法律援助署委派杜林律師事務所轉聘陳永豪大律師代表(就定罪上訴申請)" } }, { "doc_id": 75, "seg_id": 77, "translation": { "en": "Samantha Chiu, Senior Public Prosecutor of the Department of Justice, for the Respondent", "zh-HK": "無律師代表，親自出庭應訊 (就判刑上訴申請)" } }, { "doc_id": 76, "seg_id": 1, "translation": { "en": "Hon Cheung JA (delivering the Reasons for Judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 76, "seg_id": 2, "translation": { "en": "The Applicant was charged with one count of “theft”, contrary to section 9 of the Theft Ordinance (“Ordinance”) (Cap 210 of the Laws of Hong Kong).", "zh-HK": "申請人被控一項「盜竊罪」，違反《盜竊罪條例》 （‘《條例》’）（香港法例第 210 章）第 9 條。" } }, { "doc_id": 76, "seg_id": 3, "translation": { "en": "The Applicant was convicted after trial by District Judge Li and was sentenced to imprisonment for 2½ years. She applies for leave to appeal against both conviction and sentence. She is represented by Mr Chan Siu-ming of Counsel in the application regarding conviction and acts in person in the application regarding sentence.", "zh-HK": "案件經區域法院李瀚良法官審理後，申請人被裁定罪名成立及判處兩年半監禁。申請人就定罪及刑期提出上訴許可申請。有關定罪的申請由陳銚明大律師作為她的代表，而刑期的申請則由申請人親自處理。" } }, { "doc_id": 76, "seg_id": 4, "translation": { "en": "Prosecution Case", "zh-HK": "控方案情" } }, { "doc_id": 76, "seg_id": 5, "translation": { "en": "According to the prosecution case, the applicant, being the wife of PW1’s brother, was PW1’s sister-in-law. They used to be on good terms, with the applicant often looking after PW1 who suffered from mental illness. PW1 owned a bank account with a deposit of about $1,000,000.00. PW1 was ill and had to stay in the hospital. In order to make it more convenient for the applicant to handle matters relating to the said bank account, PW1 suggested having the applicant’s name added to the bank account with either one of them being authorized to make withdrawals from the account by herself. The applicant agreed to PW1’s suggestion. Subsequently, as PW1 had to be hospitalized again, she handed to the applicant for safe custody the passbook and ATM card of the said bank account to which the applicant’s name had been added. When PW1 was discharged from the hospital, the applicant returned the passbook and ATM card to her. By that time, the deposit of $1,000,000.00 had in fact been withdrawn by the applicant, but PW1 did not realize this at once. Subsequently, PW1 found that only $3,000 remained in her bank account, but she did not suspect the applicant and instead went with her to the police station to make a report.", "zh-HK": "控方案情顯示申請人與第一控方証人是姑嫂關係。申請人是第一控方証人的嫂嫂，兩人關係良好，申請人經常照顧患有精神病的第一控方証人。第一控方証人擁有一個存款約 $1,000,000.00 的銀行戶口。第一控方証人因病要在醫院留醫，她為方便申請人替她處理戶口事宜，因而提議在該戶口加入申請人的名字，兩人中任何一人都有權提款。申請人同意第一控方証人的建議。後來，第一控方証人因再次要在醫院留醫，而將已加入申請人名字的戶口存摺和提款咭交給申請人代為保管。第一控方証人出院後，申請人將她的存摺和提款咭交還給她，其實此時戶口內的 $1,000,000.00 存款已經被申請人提取了，但第一控方証人沒有即時察覺此事。第一控方証人其後發現戶口只剩下 $3,000，但她還未對申請人產生懷疑，並與她一同到警署報案。" } }, { "doc_id": 76, "seg_id": 6, "translation": { "en": "PW1 said she had never promised to lend money to the applicant or authorized her to use the money in her bank account. Under cross-examination, PW1 indicated that she was prepared to lend money to the applicant if the applicant made such a request.", "zh-HK": "第一控方証人說她從沒有答應過她會借錢給申請人，也沒有授權她可動用戶口內的款項。第一控方証人在接受辯方盤問時表示若申請人問她借錢，她是會答應的。" } }, { "doc_id": 76, "seg_id": 7, "translation": { "en": "Shortly after she accompanied PW1 to make a report to the police, the applicant went to the police station alone and admitted to the police constable who had previously handled the case that she had withdrawn the money from the bank account without PW1’s consent. Thereafter, a number of recorded interviews were conducted with the applicant, who admitted that she had withdrawn the $1,000,000.00 from PW1’s bank account without PW1’s consent.", "zh-HK": "申請人在陪同第一控方証人報案後不久單獨到警署，並向早前處理該案件的警員承認她是在沒有得到第一控方証人同意情況下提取了戶口的存款。之後，申請人作出了多份會面記錄，並承認她是在未經第一控方証人的同意下擅自提取她戶口內的 $1,000,000.00。" } }, { "doc_id": 76, "seg_id": 8, "translation": { "en": "The applicant’s evidence", "zh-HK": "申請人的証供" } }, { "doc_id": 76, "seg_id": 9, "translation": { "en": "The applicant alleged that the confession statement was not made by her voluntarily. She testified that at the material time her business was suffering a deficit and facing problems with cashflow. In addition, she had to look after PW1. As a result, she felt stressed-out. When PW1 knew about her situation, she gave her the passbook and indicated that she could use the money in the bank account.", "zh-HK": "申請人指有關的招認口供並非在她自願的情況下作出的。她供稱她當時經營的生意出現虧蝕，資金週轉不靈，又加上要照顧第一控方証人，所以感到壓力很大。當第一控方証人知道她的情況後，便將存摺交給她，並向她表示她可動用戶口內的款項。" } }, { "doc_id": 76, "seg_id": 10, "translation": { "en": "The Judge’s findings", "zh-HK": "李法官的裁決" } }, { "doc_id": 76, "seg_id": 11, "translation": { "en": "The Judge found that the confession statement made by the applicant to the police was voluntary. He accepted PW1’s evidence that she had not given any consent to the applicant to use the money in the bank account. He did not accept the applicant’s evidence that she used the money in the bank account to repay business debts. The Judge took the view that the applicant’s evidence was incredible and that she had withdrawn the money in question without PW1’s consent. The Judge held that the applicant’s act was dishonest.", "zh-HK": "李法官裁定申請人向警員作出的招認口供是出於自願的。李法官接納第一控方証人的証供，她沒有同意讓申請人運用戶口的存款。李法官不接納申請人將戶口的款項來償還生意上的欠債的証供。李法官認為申請人的供詞不可信，她是在沒有取得第一控方証人的同意下提取有關款項的。李法官裁定申請人的行為是不誠實的。" } }, { "doc_id": 76, "seg_id": 12, "translation": { "en": "The issue of “dishonesty”", "zh-HK": "「不誠實」的爭議" } }, { "doc_id": 76, "seg_id": 13, "translation": { "en": "The only ground of appeal that the applicant has put forward relates to the issue of whether or not she was dishonest. The applicant relies on section 3(b) of the Ordinance:", "zh-HK": "申請人提出的唯一上訴理由是有關她是否不誠實的爭議。申請人依賴《條例》第 3(b) 條：" } }, { "doc_id": 76, "seg_id": 14, "translation": { "en": "On this issue, the Judge made the following finding:", "zh-HK": "李法官就這項爭議點作出以下裁決：" } }, { "doc_id": 76, "seg_id": 15, "translation": { "en": "Mr Chan for the applicant submits that, in holding that the applicant could not rely on section 3(b) as her defence, the Judge erred by merely focusing on the point that it was not by reason of business debts that the applicant used the money in the account. PW1 testified that if the applicant were in financial difficulties, she would lend money to her; what PW1 said was not confined to business debts but encompassed all sorts of financial difficulties. Furthermore, the evidence showed that the applicant was in fact under financial difficulties. The Judge, it is submitted, erred in completely failing to consider whether she could rely on section 3(b) and hence failing to further consider on that basis whether she had been dishonest. Mr Chan submits that such an error rendered the conviction unsafe and unsatisfactory.", "zh-HK": "陳大律師指李法官只是着重申請人不是因生意債務動用該戶口的款項而裁定申請人不可以依賴第 3(b) 條作為辯護理由是錯誤的，因為第一控方証人曾作供說，如申請人有經濟困難，她是會借錢給她的。第一控方証人所說的並不只局限於生意債務，而是任何形式的經濟困難，況且証供顯示申請人事實是有經濟困難的，原審法官完全不考慮她可否引用第 3(b) 條是犯了錯誤，即沒有在此基礎上再考慮她是否不誠實。陳大律師指這個錯誤的做法會導致定罪不安全及不穩妥的。" } }, { "doc_id": 76, "seg_id": 16, "translation": { "en": "Mr Chan also submits that it was improper for the Judge to hold, without taking into account the following factors, that whether the applicant had been dishonest could not be determined by reference to section 3(b):", "zh-HK": "陳大律師又指李法官在沒有考慮以下的因素就認定不可以第 3(b) 條來考慮申請人是否不誠實是不穩妥的做法：" } }, { "doc_id": 76, "seg_id": 17, "translation": { "en": "PW1 and the applicant were sisters-in-law;", "zh-HK": "第一控方証人與申請人是姑嫂關係；" } }, { "doc_id": 76, "seg_id": 18, "translation": { "en": "PW1 and DW2 (the applicant’s husband) had both testified that the applicant was in need of an overdraft account; and", "zh-HK": "第一控方証人的口供及第二辯方証人（申請人的丈夫）的口供說申請人需要透支戶口；及" } }, { "doc_id": 76, "seg_id": 19, "translation": { "en": "DW3 (a friend of the applicant’s) had testified that the applicant had borrowed $250,000 from him, which served to show that the applicant was indeed under financial difficulties.", "zh-HK": "第三辯方証人（申請人的朋友）的口供說申請人曾向他借了 25 萬元，這可証明申請人是有經濟困難的。" } }, { "doc_id": 76, "seg_id": 20, "translation": { "en": "Discussion", "zh-HK": "本庭的見解" } }, { "doc_id": 76, "seg_id": 21, "translation": { "en": "If the applicant held a genuine belief, then she did not have a “dishonest” intent when she committed the alleged offence. Mr Chan concedes that the applicant must have already held such a belief when she withdrew the money. With respect, we do not agree with Mr Chan’s submission that the court could invoke section 3(b). A precondition of applying the provision is the existence of a factual basis to prove that the applicant had such belief. The applicant alleged that PW1 had indicated that she might use the money in the account, but as the Judge has already rejected the allegation as fact, the applicant could not rely on it to support her claim of the relevant belief.", "zh-HK": "若果申請人持有一個真實的信念，這表示她作出控方指稱的犯罪行為時不存有「不誠實」的意願。陳大律師同意有關的信念必須在申請人提取存款時已經存在。本庭不同意陳大律師所指法庭可以引用第 3(b) 條的陳詞。本庭認為引用這條文的先決條件是案件存有事實的基礎來証明申請人是有這樣的信念。申請人聲稱第一控方証人曾表示她可運用戶口內的款項，但由於李法官已經否定了該項事實，因此本庭認為申請人不能依賴這一點來支持她有關的信念。" } }, { "doc_id": 76, "seg_id": 22, "translation": { "en": "The applicant also alleged that according to PW1’s evidence, she would lend money to the applicant if the applicant met with financial difficulties and asked for a loan. In our view, first, those words were not uttered by PW1 prior to the offence, and furthermore, the facts of the present case showed that when the applicant withdrew the money, she was clearly aware that it was improper to do so without PW1’s consent. In her first confession statement, the applicant had this to say:", "zh-HK": "申請人另指第一控方証人的証供是若申請人有經濟困難而向她借錢的話，她是會借錢給申請人的。本庭認為首先這番話並非是第一控方証人在案發前說的，另外本案的案情更顯示申請人在提取存款時是清楚知道自己在未獲得第一控方証人的同意下作出有關行為是不當的。申請人在她的第一份的招認口供內這樣說：" } }, { "doc_id": 76, "seg_id": 23, "translation": { "en": "This was entirely different from the belief that at trial the applicant alleged she held, namely that PW1 would have consented to her withdrawing the money had she known about it. Had the applicant held such a belief, she would not have admitted she was wrong and would instead have explained to the police and insisted that she considered herself entitled to withdraw money from the account in question because she believed PW1 would consent even if PW1 knew about the withdrawal.", "zh-HK": "這更與她在原審時所聲稱若第一控方証人知情會同意她提取存款的信念大相逕庭。若申請人真的有這個信念，她就不會承認犯錯，而應該理直氣壯地向警方解釋她認為自己是有權提取有關戶口內的存款的，因為她相信第一控方証人就算知道申請人提取她戶口內的存款也會表示同意。" } }, { "doc_id": 76, "seg_id": 24, "translation": { "en": "Ever since PW1 realized the withdrawal from her bank account, the applicant had not told anyone, including PW1, that she had withdrawn the money solely because she believed PW1 would consent to what she did. Quite apart from the dearth of evidence in this connection, the applicant actually said in another confession statement:", "zh-HK": "申請人在第一控方証人獲悉她戶口內的存款被人提取後從沒有向包括第一控方証人在內的任何人說出她是因相信第一控方証人會同意她的做法才會提取存款。本案不單完全沒有這方面的証據存在，反而申請人在另一份招認口供卻說：" } }, { "doc_id": 76, "seg_id": 25, "translation": { "en": "This statement plainly shows that the applicant could not possibly have held any exculpatory belief at the time of the offence.", "zh-HK": "這份口供內容正正顯示出申請人在犯案時不可能存在有關可令她脫罪的信念。" } }, { "doc_id": 76, "seg_id": 26, "translation": { "en": "For these reasons, we are of the view that even if the Judge, in holding that the applicant could not rely on section 3(b) as a defence solely on the ground that it was not because of business debts that she took away the money, was taking a relatively narrow view of the matter, this does not mean that it was wrong for him to reject the applicant’s reliance on section 3(b) as a defence.", "zh-HK": "因此，本庭認為就算李法官只因申請人不是為生意債務而動用戶口內的存款這一項理由便作出她不可依賴第 3(b) 條作為答辯理由的裁決是較狹隘的看法，但這也不表示他否定申請人可以引用第 3(b) 條作為答辯理由的裁決是錯誤的。" } }, { "doc_id": 76, "seg_id": 27, "translation": { "en": "Conclusion on the application in respect of conviction", "zh-HK": "定罪申請的總結" } }, { "doc_id": 76, "seg_id": 28, "translation": { "en": "For the above reasons, we dismiss the application for leave to appeal against conviction.", "zh-HK": "基於這個原因，本庭駁回有關針對定罪的上訴許可申請。" } }, { "doc_id": 76, "seg_id": 29, "translation": { "en": "Sentence", "zh-HK": "刑期" } }, { "doc_id": 76, "seg_id": 30, "translation": { "en": "Turning to sentence, this Court pointed out in the case of HKSAR v. Cheung Mee Kiu that where the amount involved in theft by breach of trust fell between $250,000.00 and $1,000,000.00, an appropriate sentence would be imprisonment for 2 to 3 years.", "zh-HK": "至於刑期方面，本庭在 HKSAR v. Cheung Mee Kiu (張美嬌[譯音])一案中指出若違反誠信的盜竊行為涉及的金額是$250,000.00 至 $1,000,000.00，適當的刑期是兩年至三年的監禁。" } }, { "doc_id": 76, "seg_id": 31, "translation": { "en": "In the present case, the Judge adopted a starting point of 3 years. Having considered the fact that the applicant had already repaid $120,000.00 to PW1 and her husband had undertaken to make every effort repay the outstanding sum on her behalf within 3 years, the Judge reduced the term by 6 months, to 2 years and 6 months. We see nothing improper with this sentence and accordingly dismiss the application for leave to appeal against sentence.", "zh-HK": "在本案，李法官以三年為量刑基準，但在考慮過申請人已經償還了 $120,000.00 給第一控方証人和她的丈夫承諾會盡量在三年內替她償還餘下欠款的因素再給予她六個月的減刑，最終刑期為兩年六個月監禁。本庭認為這是一項適當的刑期，故此本庭駁回針對刑期的上訴許可申請。" } }, { "doc_id": 76, "seg_id": 32, "translation": { "en": "Ms Evena Chan, Senior Assistant Director of Public Prosecutions, for the Respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員陳月好代表。" } }, { "doc_id": 76, "seg_id": 33, "translation": { "en": "Mr Chan Siu Ming, instructed by Joseph C T Lee & Co on assignment by the Legal Aid Department, for the Applicant (application re conviction).", "zh-HK": "申請人（定罪申請）：由法律援助署委派李全德律師行轉聘陳銚明大律師代表。" } }, { "doc_id": 76, "seg_id": 34, "translation": { "en": "The Applicant in person (application re sentence).", "zh-HK": "申請人（刑罰申請）：無律師代表，親自出席。" } }, { "doc_id": 77, "seg_id": 1, "translation": { "en": "Tang, V-P (giving the reasons for decision of the Court):", "zh-HK": "上訴法庭副庭長鄧國楨頒發上訴法庭判案理由書：" } }, { "doc_id": 77, "seg_id": 2, "translation": { "en": "Between August 2007 and June 2008, police constable NG Wai-man (PW4) participated in an undercover operation in which he was mainly to collect intelligence of criminal activities in New Territories North Region. As a result of the undercover operation, the seven defendants in the present case were respectively charged with one or more than one offence relating to triad societies (namely, contrary to the Societies Ordinance, Cap 151, Laws of Hong Kong). D2 was further charged with trafficking in a dangerous drug involving 2.49 grammes of cannabis (in herbal form), to which he has pleaded guilty.", "zh-HK": "由2007年8月至2008年6月，警員吳偉文（控方第四證人）參與臥底行動，主要在新界北總區收集犯罪活動的情報，該臥底行動導致本案7名被告人分別被控一項或多於一項與三合會社團有關（即違反香港法例第151章《社團條例》）的罪名，而第二被告人被加控一項販運危險藥物罪，所涉及的是2.49克大麻（草本形態），第二被告人承認販運危險藥物罪。" } }, { "doc_id": 77, "seg_id": 3, "translation": { "en": "All the defendants were convicted after trial by Deputy District Judge Sham and were sentenced to imprisonment for a term ranging from 24 months to 45 months.", "zh-HK": "案件經區域法院暫委法官沈小民審理後，各被告人被裁定罪名成立，分別被判刑24至45個月不等。" } }, { "doc_id": 77, "seg_id": 4, "translation": { "en": "As the undercover operation had lasted for a period of almost 10 months, which is not a short period, and there are as many as 7 defendants involved, the following table showing the respective charges and sentences in relation to each defendant has been prepared by Ms Alice Chan Shook-man, Senior Public Prosecutor, for the sake of convenience:", "zh-HK": "由於臥底行動持續接近10個月，為期不短，加上有7名被告人之多，高級檢控官陳淑文為方便起見，將有關各被告人的控罪及判刑表列如下：" } }, { "doc_id": 77, "seg_id": 5, "translation": { "en": "Leave to appeal against conviction is being sought by D2, D4 and D6, among whom D2 and D4 act in person whereas D6 is represented by Counsel Mr. Kwan Tong-lee.", "zh-HK": "第二、第四及第六被告人就定罪申請上訴許可，其中第二及第四被告人就定罪親自應訊，而第六被告人則由關唐利大律師代表。" } }, { "doc_id": 77, "seg_id": 6, "translation": { "en": "Leave to appeal against sentence is being sought by D2, D4, D5, D6 and D7, among whom D2, D5 and D6 are represented by Counsel Mr. Kwan Tong-lee whereas D4 and D7 by Counsel Mr. Steve Chui.", "zh-HK": "第二、第四、第五、第六及第七被告人均就判刑提出上訴許可申請，其中第二、第五及第六被告人由關唐利大律師代表；第四及第七被告人則由徐福亮大律師代表。" } }, { "doc_id": 77, "seg_id": 7, "translation": { "en": "At the outset of the hearing, D2 and D4 abandon their applications for leave to appeal against conviction. The applications are therefore dismissed.", "zh-HK": "在聆訊開始時，第二及第四被告人放棄定罪的上訴許可申請，故申請被撤銷。" } }, { "doc_id": 77, "seg_id": 8, "translation": { "en": "After the hearing, D6’s application for leave to appeal against conviction is dismissed by this Court.", "zh-HK": "經聆訊後，本庭駁回第六被告人的定罪上訴許可申請。" } }, { "doc_id": 77, "seg_id": 9, "translation": { "en": "Leave is granted to D2, D4, D5, D6 and D7 to appeal against sentence. The results are as follows:", "zh-HK": "至於第二、第四、第五、第六及第七被告人的判刑上訴許可申請則獲接納，結果如下。" } }, { "doc_id": 77, "seg_id": 10, "translation": { "en": "For D2, as there is no appeal against sentence in respect of Charge 3 (the offence of trafficking in a dangerous drug), the original sentence of two months’ imprisonment is upheld by this Court; in respect of Charges 4 and 10, the original sentences of two years’ imprisonment for each charge are reduced by this Court to 15 months for each charge; in respect of Charge 8, the original sentence of 15 months’ imprisonment is altered to 3 months’ imprisonment; 4 months in respect of Charge 4 shall run consecutively to the sentences on Charges 3, 8 and 10. The total term of sentence for D2 is reduced from the original term of 38 months to 24 months.", "zh-HK": "第二被告人就控罪三（販運危險藥物罪）的兩個月刑期並無提出上訴，故本庭維持原判；至於控罪四及十原本各為兩年監禁的刑期，本庭減為各15個月監禁；控罪八的刑期，則由原本的15個月監禁，改為3個月監禁；控罪四當中的4個月刑期，與控罪三、控罪八和控罪十的刑期分期執行，第二被告人的總刑期由原本的38個月減為24個月。" } }, { "doc_id": 77, "seg_id": 11, "translation": { "en": "For D4, in relation to Charges 6, 9 and 14, the original sentences are a term of imprisonment for 2 years and 9 months on each charge, of which 6 months in respect of each of Charge 9 and Charge 14 shall run consecutively, making a total term of sentence of 45 months. After the hearing of the appeal, it is ordered by this Court that the sentence on Charge 6 be altered to 12 months, that on Charge 9 be altered to 15 months, and that on Charge 14 be altered to 2 years, of which 3 months in respect of Charge 6 and 6 months in respect of Charge 9 shall run consecutively to the sentence on Charge 14. The total term of sentence for D4 is 33 months.", "zh-HK": "第四被告人就第六、九及十四項控罪，原本被判各2年9個月監禁，當中控罪九和十四各有6個月刑期分期執行，總刑期為45個月。上訴聆訊後，本庭命令控罪六的刑期，改為12個月、控罪九的刑期改為15個月、控罪十四的刑期改為2年，當中控罪六的3個月刑期和控罪九的其中6個月刑期，與控罪十四的刑期分期執行，第四被告人的總刑期為33個月。" } }, { "doc_id": 77, "seg_id": 12, "translation": { "en": "As regards D5, at the conclusion of the trial he pleaded guilty to a charge of claiming to be a member of a triad society (Charge 7) and a charge of acting as a member of a triad society (Charge 13). D5 was sentenced by the trial judge to 15 months’ imprisonment on Charge 7 and 2 years’ imprisonment on Charge 13, to be reduced by 3 months for each charge because of his plea of guilty. Further, of the 12 months in respect of Charge 7 and of the 21 months in respect of Charge 13, 6 months were to run consecutively to each other, making a total term of sentence of 27 months. After the hearing of the appeal, it is ordered by this Court that the original sentence of 12 months on Charge 7 be altered to 3 months, the original sentence of 21 months on Charge 13 be altered to 12 months, and the total term of sentence for D5 be reduced from 27 months to 15 months.", "zh-HK": "至於第五被告人，他在審訊結束後承認一項聲稱是三合會社團的成員罪（控罪七）及一項以三合會社團成員身分行事罪（控罪十三），原審法官判處第五被告人就控罪七入獄15個月，控罪十三入獄2年，因認罪各項控罪的刑期獲減3個月，另外控罪七的12個月與控罪十三的21個月刑期，各有6個月分期執行，總刑期為27個月。上訴聆訊後本庭命令控罪七的12個月刑期改為3個月，而控罪十三的21個月改為12個月，第五被告人的總刑期由27個月減為15個月。" } }, { "doc_id": 77, "seg_id": 13, "translation": { "en": "Furthermore, it is ordered by this Court that in relation to D6, the original sentence of 27 months’ imprisonment on Charge 11 be reduced to 15 months.", "zh-HK": "另外，本庭命令第六被告人就控罪十一的刑期，由原本的27個月監禁減至15個月。" } }, { "doc_id": 77, "seg_id": 14, "translation": { "en": "As regards D7, the original sentence of 24 months on Charge 12 is altered to 9 months.", "zh-HK": "至於第七被告人第十二項控罪的刑期，則由原本的24個月改為9個月。" } }, { "doc_id": 77, "seg_id": 15, "translation": { "en": "As there is no dispute between the parties as to the facts of the various charges, we have adopted the written submission by Ms Alice Chan Shook-man, Senior Public Prosecutor. An extract is given below:", "zh-HK": "就有關各項控罪的案情，控辯雙方並無異議，所以本庭採用高級檢控官陳淑文的書面陳詞，並節錄如下：" } }, { "doc_id": 77, "seg_id": 16, "translation": { "en": "“Charge 4 – Acting as a member of a triad society (against D2)", "zh-HK": "「第四項控罪—以三合會成員身分行事（針對第二被告）" } }, { "doc_id": 77, "seg_id": 17, "translation": { "en": "On 11 December 2007 at around 8:00 p.m., PW4 was having dinner with D2, nicknamed Ah Mike, and other persons including D7, nicknamed Ah Chuen, in Yuen Long. During that time, D7 was informed to go to Shing Kee Restaurant at 11 o’clock on the following morning and he said, ‘Fei Wah will “blow the whistle” tomorrow, …… seems to be saying that there will be a settlement talk at a table.’ It was the understanding of PW4 that the purpose of the gathering was to have a settlement talk. D2 asked PW4 to attend (the gathering) the following day in answer to the summons from Fei Wah who ‘blew the whistle’.", "zh-HK": "2007年12月11日控方第四證人於晚上8時左右與別號為亞Mike的第二被告及其他人包括別號阿全的第七被告在元朗吃晚飯。期間第七被告被通知要於翌日早上11時到勝記茶餐廳，並說：『飛華聽日『吹雞』，……好似話埋枱講數。』。控方第四證人理解聚會的目的是為了講數。而第二被告要求控方第四證人翌日出席響應飛華的『吹雞』召集。" } }, { "doc_id": 77, "seg_id": 18, "translation": { "en": "At around 10:30 a.m. on 12 December, PW4, having met up with D2, arrived at Shing Kee Restaurant. During that time, PW4 said, ‘Ah Dee, just follow what I do in a moment. Brother Wah might not have a settlement talk. Maybe it’s just to collect “Tor Tei”, it’s unknown yet.’ Afterwards, D2 introduced a number of males including Chui Shui Wah, Ah Yiu and Ah Sor to PW4 and told PW4 that they were ‘all belonging to “Number”, and also followers of Fei Wah’. D2 also told PW4 to sit at a separate table, saying, ‘So that (we) won’t get arrested altogether in case the police make arrest. If any cops come up in a moment, just say (you are) having breakfast and know nothing at all.’ Later on, Ah Sor received a phone call and came to know that the place of meeting had been changed. Everybody then dispersed and eventually nothing particular happened that morning.", "zh-HK": "於12月12日早上10時半左右控方第四證人會合第二被告到達勝記茶餐廳，期間控方第四證人說：『阿Dee，一陣睇我頭，華哥未必講數喎，可能收陀地都未定。』後來被第二被告把多名男子向控方第四證人介紹，包括吹水華，亞耀及亞傻。並告訴控方第四證人他們『都係冧巴嘅，都係跟飛華。』又叫控方第四證人與他分枱坐，說：『有衰唔使一齊衰，一陣有差佬，話食早餐，咩都話唔知。』後來亞傻接到電話知道會面地方改變了，眾人便散去，最終當天早上沒有特別事發生。" } }, { "doc_id": 77, "seg_id": 19, "translation": { "en": "PW7, Woman Sergeant WONG Pui-kam, while giving evidence as a triad expert, stated that ‘blowing the whistle’ is a triad jargon, which represents a triad summons to convene an assembly.", "zh-HK": "控方第七證人女警長黃佩琴以三合會專家身分作供表示『吹雞』為三合會術語，表示三合會傳召集合。" } }, { "doc_id": 77, "seg_id": 20, "translation": { "en": "Charge 6 – Acting as a member of a triad society (against D4)", "zh-HK": "第六項控罪—以三合會身分行事（針對第四被告）" } }, { "doc_id": 77, "seg_id": 21, "translation": { "en": "At around 1:15 a.m. on 3 January 2008, PW4 met D4, nicknamed Fei Wah, and another male in Neway Karaoke in Yuen Long. During that time, D4 said to PW4, ‘Ah Dee, when “the whistle was blown” at Shing Li on the last occasion, you were the first one who arrived there. (You) also helped out in putting things and did it well. I know that you can do it. Ah Mike did mention that to me. Well, I now promote you by one rank, you are my immediate follower. If anything happens, just reveal my identity Fei Wah. Work hard. Ah Kung knows that (you) can do it.’ Later on, D4 further said to PW4, ‘(You) got to change the mode of address, now call me Ah Dai.’ Afterwards, D4 further introduced another male to PW4, ‘This is Brother Nam, a fellow brother belonging to our “Number”, (he) is a follower of Wah Hei.’", "zh-HK": "於2008年1月3日凌晨1時15分左右，控方第四證人與別號為飛華的第四被告及另一名男子在元朗Neway Karaoke見面。期間第四被告對控方第四證人說：『亞Dee上次勝利『吹雞』你係第一個到，幫手放嘢又放得幾好，你做到嘢我知嘅，亞Mike有同我講。嗱我而家紮你一輩，你直接跟我，有嘢響我飛華，俾心機，做到嘢亞公知嘅。』期後第四被告又對控方第四證人說：『改口呀，叫我亞大。』後來第四被告又對控方第四證人介紹另一名男子：『呢個南哥，自己冧把兄弟嚟嘅，跟華喜嘅。』" } }, { "doc_id": 77, "seg_id": 22, "translation": { "en": "PW7 testified that “Number” is a nickname of 14K Triad Society. The phrase ‘I promote you by one rank’ means to follow another triad protector.", "zh-HK": "控方第七證人供稱『冧把』是14K三合會的別稱。『我紮你一輩』是指跟隨另一位三合會保家。" } }, { "doc_id": 77, "seg_id": 23, "translation": { "en": "Charges 7 and 8 – Claiming to be a member of a triad society (against D5 and D2)", "zh-HK": "第七及八項控罪—聲稱三合會成員（分別針對第五及第二被告）" } }, { "doc_id": 77, "seg_id": 24, "translation": { "en": "On the evening of 15 January 2008, PW4 and D2 went to Summer Pub in Ping Cheong Path for entertainment. During that time, D2 introduced D5, nicknamed Ho Wan, to PW4. Pointing at D5, D2 said, ‘This is Ho Wan, a fellow brother belonging to our “Number”, also a follower of Fei Wah.’ After that, D2 said to D5, ‘This is Ah Dee, he’s been assigned to Fei Wah.’ Then D5 and PW4 shook hands and D5 said, ‘Alright, we are fellow brethrens, let’s have more contacts in future.’", "zh-HK": "2008年1月15日晚上，控方第四證人與第二被告前往屏昌徑夏日酒吧消遣，期間第二被告把別號為浩雲的第五被告介紹給控方第四證人。第二被告指著第五被告說：『呢個浩雲，大家冧把兄弟嚟嘅，都係跟飛華。』之後第二被告又對第五被告說：『呢個亞Dee，俾咗份飛華。』之後第五被告與控方第四證人握手，第五被告說：『得啦，大家老表，以後多啲聯絡啦。』" } }, { "doc_id": 77, "seg_id": 25, "translation": { "en": "Charges 9 to 13 – Acting as a member of a triad society (against D2, D4, D5, D6 and D7)", "zh-HK": "第九至十三項控罪—以三合會成員身分行事（針對第二，第四，第五，第六及第七被告）" } }, { "doc_id": 77, "seg_id": 26, "translation": { "en": "In the small hours of the morning of 16 January 2008, outside Choi Hung Store, PW4 together with D2, D5, D7 and a number of males left Summer Pub and proceeded to Choi Hung Store. Outside the store, they met D6 and his friends. As early as 24 October 2007, PW4 had come to know D6, nicknamed Ah Ming, through the introduction by D2. At that time, D2 and D6 had a quarrel. A man called Sei Ngan Man joined in the quarrel with D2. During that time, Sei Ngan Man told D2, ‘Get lost if (you) are going crazy.’ Then D2 said, ‘No need to talk. Those of “Number”, get ready.’ D7 said, ‘Alright, brothers.’ After that D4 came forward to mediate and said, ‘Ah Mike, don’t make any noise for the time being. Listen to Big Brother. Big Brother is in charge.’ D5 said to D4, ‘Ah Dai, frankly speaking, do we “Number” still have a share in this establishment now?’ D4 replied, ‘Yes, of course.’ Sei Ngan Man then said to D4, ‘Brother Wah, you are backing up the juniors. He humiliates me like this, do (you) treat us Wo Shing Wo as nothing?’ Then D6 said to Sei Ngan Man, ‘Ah Dai, just ignore him, “blow the whistle”.’ Sei Ngan Man then made a phone call, saying, ‘Blow the whistle. Call up everybody to come over to Choi Hung.’ D4 asked D2 to leave first. Five minutes later, about 20-odd young men arrived at the scene, some of whom were holding long black torches. Shortly afterwards, two uniformed police officers arrived and all people dispersed. The illumination at the scene was sufficient. PW4 had seen D6 for about half an hour.", "zh-HK": "2008年1月16日凌晨在彩虹士多外，控方第四證人與第二被告，第五被告，第七被告及多名男子離開夏日酒吧前往彩虹士多。在士多外，遇見第六被告及他的友人。控方第四證人早於2007年10月24日經第二被告介紹，認識叫阿Ming的第六被告。期間第二被告與第六被告發生爭執，而另一名叫四眼文的男子亦加入與第二被告發生爭執，期間四眼文叫第二被告：『發癲就行遠啲。』之後第二被告說：『唔洗講喇，冧把嘅埋位。』而第七被告又說：『得啦，兄弟。』之後第四被告出面調停並說：『亞Mike，唔好嘈住先，聽大佬講，大佬揸莊。』第五被告對第四被告說：『亞大，老老實實，而家間場我哋冧把仲有無份先？』第四被告回答說：『梗係有啦。』四眼文便對第四被告說：『華哥你撐啲細嘅，佢咁嚟落我面，當我和勝和流?』然後第六被告就對四眼文說：『亞大，唔好理佢啦，『吹雞』啦。』四眼文便打電話說：『吹雞呀，拖齊人落彩虹呀。』第四被告要第二被告先離開。五分鐘後大約有二十多名年青男子到場其中有數人拿著黑色長電筒。未幾有兩名軍裝警員到場各人便散去。事發現場光線充足，控方第四證人見到第六被告約半小時。" } }, { "doc_id": 77, "seg_id": 27, "translation": { "en": "Charge 14 – Acting as a member of a triad society (against D4)", "zh-HK": "第十四項控罪—以三合會成員身份行事（針對第四被告）" } }, { "doc_id": 77, "seg_id": 28, "translation": { "en": "On 11 April 2008, D4 paid a pre-arranged visit with PW4 and several males to the Chinese Permanent Cemetery in Chai Wan for grave-sweeping. On the way to the cemetery, D4 indicated to PW4 that they were going to pay respects to Big Nose Dung, the founding master of Number 14, for the purpose that it was hoped that ‘brothers from more branches of water would gather together, and with the gathering of brothers, it can avoid the situation where brothers, when bumping into each other, would not know they are of the same side.’ Around 100-odd people gathered at the cemetery on that day. They lined up to offer joss sticks and pay respects at a particular grave. On the stone tablet at the grave was printed with the wording of No. 14, and below a photograph was written ‘The Grave of Ho Kong Dung Esquire’. Everybody dispersed after the ceremony.”", "zh-HK": "2008年4月11日，第四被告相約控方第四證人及數名男子前往柴灣華人永遠墳場掃墓。途中第四被告向他表示是前往拜祭14號開山祖師大鼻登，目的是希望『多支水嘅兄弟聚埋，兄弟聚吓免得見了面也不知是自己人。』當日在墳場聚集了約100多人，並列隊向一處墳墓上香拜祭，而墓碑上印有14號字樣，照片下寫著『何公港登之墓』，完事後各人便散去。」" } }, { "doc_id": 77, "seg_id": 29, "translation": { "en": "All the charges of the present case involve the breach of Section 20(2) of the Societies Ordinance, Cap. 151, Laws of Hong Kong. The provision is as follows:", "zh-HK": "本案有關的控罪均涉及違反香港法例第151章《社團條例》第20(2)條。條例原文如下：" } }, { "doc_id": 77, "seg_id": 30, "translation": { "en": "“(2)Any person who is or acts as a member of a triad society or professes or claims to be a member of a triad society or attends a meeting of a triad society or who pays money or gives any aid to or for the purposes of the triad society or is found in possession of or has the custody or control of any books, accounts, writing, lists of members, seals, banners or insignia of or relating to any triad society or to any branch of a triad society whether or not such society or branch is established in Hong Kong, shall be guilty of an offence and shall be liable on conviction on indictment- (Amended 36 of 1964 s. 4; 30 of 1988 s. 4)", "zh-HK": "「(2)任何人如屬三合會社團的成員，或以三合會社團成員身分行事，或自稱或聲稱是三合會社團的成員，或參加三合會社團的集會，或向三合會社團付款或給予援助，或為三合會社團的目的而付款或給予援助，或保管或控制或被發現管有屬於或關於三合會社團或三合會社團任何分支機構的任何簿冊、帳目、字據、成員名單、印章、旗幟或徽章，則不論該社團或該分支機構是否在香港成立，該人亦屬犯罪，一經循公訴程序定罪─ (由1964年第36號第4條修訂；由1988年第30號第4條修訂)" } }, { "doc_id": 77, "seg_id": 31, "translation": { "en": "in the case of a first conviction for that offence to a fine of $100,000 and to imprisonment for 3 years; and", "zh-HK": "(a)如屬首次就該項罪行被定罪，可處罰款$100,000及監禁3年；及" } }, { "doc_id": 77, "seg_id": 32, "translation": { "en": "in the case of a second or subsequent conviction for that offence to a fine of $250,000 and to imprisonment for 7 years.”", "zh-HK": "(b)如屬第二次或其後就該項罪行被定罪，可處罰款$250,000及監禁7年。」" } }, { "doc_id": 77, "seg_id": 33, "translation": { "en": "It can be seen from the substance of the Ordinance that Section 20(2) includes a great variety of activities, the gravity of which may vary substantially.", "zh-HK": "從條例的內容可見，第20(2)條包括多種不同的行動，而該些行動的嚴重性可有甚大的差別。" } }, { "doc_id": 77, "seg_id": 34, "translation": { "en": "The offences of the present case can be divided into three categories.", "zh-HK": "至於本案的各項控罪可分為三大類。" } }, { "doc_id": 77, "seg_id": 35, "translation": { "en": "The first category is about the so-called “blowing the whistle”. “Blowing the whistle” means a member of a triad society summons other members of the triad society to assemble at a certain place in order to make an impressive show of strength. Offences of this category have been dealt with by courts on numerous occasions, from which two cases may be cited here.", "zh-HK": "第一類是所謂的「吹雞」。「吹雞」者即由一名三合會成員召集其他三合會成員到某地點聚集，以壯聲勢。法庭曾多次處理這類罪行，其中可舉兩案例。" } }, { "doc_id": 77, "seg_id": 36, "translation": { "en": "One: HKSAR v. Yeung Chi Keung and Anor, CACC 96/1998 (4 August 1998, unreported) (before Hon. Chan, CJHC, Mortimer, V-P and Liu, JA in Court). The defendants of the case blew the whistle at entertainment establishments in Wanchai and Causeway Bay on different occasions and it was “an impressive show of force” with the number of people involved. The trial judge, District Judge Wright (as he then was), adopted a starting point of 15 months for each of the two cases in which “blowing the whistle” was involved. For the clear record of the defendants, the sentences were reduced to 12 months (for each offence) to run consecutively, making a total of 24 months. Liu, JA, had this to say in his judgment:", "zh-HK": "一、HKSAR v. Yeung Chi Keung and Anor，CACC 96/1998（未經報導，1998年8月4日）（由高院首席法官陳兆愷、馬天敏副庭長和廖子明法官組成），該案的被告人在不同日子於灣仔及銅鑼灣的娛樂場所吹雞，涉及的人數是 “an impressive show of force”。原審區域法院法官韋毅志（當時官階）就吹雞兩案各採納15個月為起點。但因被告人沒有案底而減為12個月，分期執行，共24個月。上訴法庭法官廖子明在其判案書說：" } }, { "doc_id": 77, "seg_id": 37, "translation": { "en": "“… In each of the offences, Yeung and Wong blew, so to speak, the whistle to summon followers. They came and it was an impressive show of force. At the end of each incident, counsel is quite right that there was no violence but it is not to be forgotten that a show of force might, and not infrequently did, lead to disagreement with skirmishes of various degrees to follow. It is also true that the protection extended to the establishments were not forced upon their operators but that is not the real point. The point is protection by triad societies, and common sense tells us that it is a service which no self-respecting establishment would welcome. Whether or not violence would ensue is, in most cases, unpredictable. Blowing the whistle for the congregation of a triad group to stand against the presence of a rival gang is, itself, a serious menace to tranquility. These activities are likely to stir up an inexonerable spiral of triad transgressions. The applicants, both members of a triad society, “blew the whistle” on different occasions for summoning followers to stage a meaningful presence at entertainment establishments. Acting as a triad member in the course of baring the teeth of the underworld is no small crime. Disturbances in the Wan Chai night scene are best left in the hands of law enforcement agencies. In these circumstances, this court does not regard the starting point adopted by the judge as inappropriate. Taking these occasions as known to the court, personal circumstances and the involvement and activities of these applicants, and also the number of offences of which each was convicted, the sentences passed upon each of the applicants by the Deputy Judge cannot be said to be manifestly excessive. In totality, the sentence for each is, in the opinion of this court, not out of line. The respective applications of the applicants therefore stand dismissed.”", "zh-HK": "“… In each of the offences, Yeung and Wong blew, so to speak, the whistle to summon followers. They came and it was an impressive show of force. At the end of each incident, counsel is quite right that there was no violence but it is not to be forgotten that a show of force might, and not infrequently did, lead to disagreement with skirmishes of various degrees to follow. It is also true that the protection extended to the establishments were not forced upon their operators but that is not the real point. The point is protection by triad societies, and common sense tells us that it is a service which no self-respecting establishment would welcome. Whether or not violence would ensue is, in most cases, unpredictable. Blowing the whistle for the congregation of a triad group to stand against the presence of a rival gang is, itself, a serious menace to tranquility. These activities are likely to stir up an inexonerable spiral of triad transgressions. The applicants, both members of a triad society, “blew the whistle” on different occasions for summoning followers to stage a meaningful presence at entertainment establishments. Acting as a triad member in the course of baring the teeth of the underworld is no small crime. Disturbances in the Wan Chai night scene are best left in the hands of law enforcement agencies. In these circumstances, this court does not regard the starting point adopted by the judge as inappropriate. Taking these occasions as known to the court, personal circumstances and the involvement and activities of these applicants, and also the number of offences of which each was convicted, the sentences passed upon each of the applicants by the Deputy Judge cannot be said to be manifestly excessive. In totality, the sentence for each is, in the opinion of this court, not out of line. The respective applications of the applicants therefore stand dismissed.”" } }, { "doc_id": 77, "seg_id": 38, "translation": { "en": "Two: HKSAR v. Wong Sing Chi and Ors, CACC 245/1999 (31 August 1999, unreported) (before Hon. Nazareth, V-P, Stuart-Moore, V-P, and Leong, JA in Court). There was also an undercover police officer in the case which also involved offences related to blowing the whistle. On one of the occasions, the offence took place at around 10 p.m. at a restaurant where members of two triad societies, namely, 14K Triad Society and Wo Shing Wo Triad Society, blew the whistle for the purpose of “having a settlement talk”. The location where the offence of the case took place was in Wanchai. At the time when the whistle was blown, on one side there was a group of about 20 people, whereas on the other side, there was another group of 40-odd. Having considered the case of Yeung Chi Keung, the Court of Appeal took the view that a starting point of 15 months was appropriate and had this to say:", "zh-HK": "二、HKSAR v. Wong Sing Chi and Ors，CACC 245/1999（未經報導，1999年8月31日）（由上訴法庭黎守律副庭長，司徒冕副庭長及梁紹中法官組成），該案亦有臥底警員，該案所牽涉的罪行同樣與吹雞有關，其中一次案發時是晚上10時在一酒樓，14K三合會會員與和勝和三合會會員，兩個三合會社團為「講數」而吹雞。該案的案發地點是在灣仔。吹雞時，一方人數約20人，另一方約40多人。上訴庭參考過Yeung Chi Keung一案後，認為15個月為量刑起點屬恰當，並有以下說法：" } }, { "doc_id": 77, "seg_id": 39, "translation": { "en": "“We agree that a case of the present nature is no small crime and it is a case where punishment sufficient to deter such triad activities should be imposed. The Judge’s adoption of 15 months for a defendant acting in the role of an officer and 9 months for a defendant in the role of a soldier were sentence starting points which we have no reason to disturb.”", "zh-HK": "“We agree that a case of the present nature is no small crime and it is a case where punishment sufficient to deter such triad activities should be imposed. The Judge’s adoption of 15 months for a defendant acting in the role of an officer and 9 months for a defendant in the role of a soldier were sentence starting points which we have no reason to disturb.”" } }, { "doc_id": 77, "seg_id": 40, "translation": { "en": "In the present case, the trial judge, Deputy District Judge Sham said:", "zh-HK": "在本案，原審區域法院暫委法官沈小民說：" } }, { "doc_id": 77, "seg_id": 41, "translation": { "en": "“26.… I understand that the most desirable situation under our system is that similar sentences are imposed by courts on offenders having more or less the same degree of criminality, in order to avoid unnecessary grievances. Nevertheless, in the absence of any sentencing guideline laid down by the Court of Appeal, the ultimate question that has to be asked is – is the sentence imposed appropriate, based on the facts of the case and having considered the mitigation of the offender, etc.?”", "zh-HK": "「26.…本席明白在我們的制度下，最理想的情況就是法庭能對差不多刑責的犯事者作出相近的刑罰，避免出現不必要的不滿，但在沒有上訴庭量刑指引的情況下，最終要問的問題會是—所判的刑罰，基於該案的案情，考慮過犯事者的求情等等之後是否恰當？」" } }, { "doc_id": 77, "seg_id": 42, "translation": { "en": "Although there is no sentencing guideline laid down by the Court for this type of offences, a court should still give full weight to the approach on sentencing adopted by other courts, particularly the Court of Appeal, in dealing with cases of the same category. The trial judge also understood that it is most desirable that similar sentences in terms of severity are imposed by courts on offenders having similar degree of criminality. He, however, has not provided any satisfactory explanation as to why such an ideal could not be achieved in the present case.", "zh-HK": "雖然法庭對這類罪行沒有量刑指引，可是法庭亦應重視其他法庭、尤其是上訴法庭，對同類案件在罰則上的處理。原審法官亦明白最理想的是法庭對刑責相約的犯案者判處輕重相約的刑罰，但他沒有提供令人滿意的說法去解釋為何在這案不能達至這理想。" } }, { "doc_id": 77, "seg_id": 43, "translation": { "en": "It was pointed out by the trial judge that:", "zh-HK": "原審法官指出：" } }, { "doc_id": 77, "seg_id": 44, "translation": { "en": "“The court always considers triad offences as serious crimes.”", "zh-HK": "「法庭從來對黑社會的罪行視之為嚴重的。」" } }, { "doc_id": 77, "seg_id": 45, "translation": { "en": "This point was also emphasized by the Court of Appeal in Yeung Chi Keung and Wong Sing Chi. The trial judge, however, did not explain why the sentences in the above two cases were not applicable to the present one. Of course, sentencing should not be formularized. Nevertheless, for offences which involve comparable facts in nature and gravity, comparable sentences should be imposed. This is exactly the most desirable situation referred to by the trial judge, which should not be neglected unless there are otherwise sufficient reasons.", "zh-HK": "上訴法庭在Yeung Chi Keung及Wong Sing Chi亦強調這點，但原審法官並沒有解釋為何以上兩案的刑期不適用於本案。當然判刑不應公式化，但案情性質和嚴重性相約的罪行應判以相約的刑期，這正是原審法官所說是最理想的情況，如無充份理由是不應忽視。" } }, { "doc_id": 77, "seg_id": 46, "translation": { "en": "The circumstances in which the whistle was blown in the present case are not as serious as those in the above two cases. In the present case, the whistle was blown for the first time on 11 and 12 December 2007, but to no avail. On the second occasion, it was D6 (a member of Wo Shing Wo) who blew the whistle. Although D2, D4, D5 and D7 were present at the scene, they did not blow the whistle. Meanwhile, D4 even asked D2 to leave the scene. From this, we can see no reasons sufficient for imposing a sentence higher than 15 months for the role of “officer” and 9 months for the role of “soldier” as mentioned in the above two cases. There is not much difference between the circumstances of D6 and those of the defendants in the above two cases. Therefore, in the opinion of this Court, the sentences imposed by the trial judge on these defendants are manifestly excessive.", "zh-HK": "本案吹雞的情況，不比上述兩案嚴重。本案第一次吹雞是2007年12月11及12日，但沒有成事；至於第二次，吹雞的是第六被告人（和勝和成員），而第二、第四、第五及第七被告人雖然在場，但他們並沒有吹雞，當中第四被告人更叫第二被告人離開現場。由此可見，本庭看不到任何理由足以判處他們比以上兩案例提及“officer”角色的15個月和“soldier”角色的9個月更高的刑期。第六被告人的情況跟上述兩案例的被告人的情況沒有大分別，所以本庭認為原審法官對他們的判刑是明顯過重。" } }, { "doc_id": 77, "seg_id": 47, "translation": { "en": "As regards the second category of offence, i.e. claiming to be a member of a triad society (Charge 8 against D2 and Charge 7 against D5), its gravity depends on: in what circumstances does a person claim to be a member of a triad society; and for what purposes is the claim to be a member of a triad society made? For instance, if a member of a triad society claims to be a member of a triad society to an ordinary member of the public for the purpose of intimidation, thereby causing fear to the member of the public, the gravity of making such a claim is naturally much greater. The circumstances of the present case, however, are not like this. The trial judge should make reference to the judgment by Deputy High Court Judge Line (as he then was) in HKSAR v Lau Chi-hung, HCMA 1079/2004 (22 April 2005, unreported). The case involved an undercover operation by the police. The appellant of the case said to the undercover officer:", "zh-HK": "至於第二類罪行，即自稱三合會成員（第二被告人的控罪八和第五被告人的控罪七），其嚴重性要視乎在哪種情況下自稱三合會成員，與及自稱三合會成員的目的是甚麼。例如，一個三合會成員向普通巿民自稱是三合會成員以達到恐嚇目的，令巿民受驚，其嚴重性自然會高很多。但本案情況並非如此，原審法官應參考高等法院暫委法官賴磐德（當時官階）在HKSAR v Lau Chi-hung，HCMA 1079/2004（未經報導，2005年4月22日）的判決，該案涉及警方的臥底行動，該案上訴人對臥底探員說：" } }, { "doc_id": 77, "seg_id": 48, "translation": { "en": "“From now on, pay more visits here to have fun. We are Wo Hop To, just like a family.”", "zh-HK": "“From now on, pay more visits here to have fun. We are Wo Hop To, just like a family.”" } }, { "doc_id": 77, "seg_id": 49, "translation": { "en": "The appellant of the case was sentenced to 3 months’ imprisonment. Judge Line said:", "zh-HK": "該案的上訴人被判3個月監禁。賴法官說：" } }, { "doc_id": 77, "seg_id": 50, "translation": { "en": "“… All I need say is that the sentence, to me, is entirely appropriate. It was a gentle claim made in a social context, but that is reflected in the gentle sentence of 3 months which is at the bottom end of the bracket for claiming to be a member of a triad society. Triad societies are a continuing menace to our society and claiming to be a member is bound to attract a custodial sentence in circumstances like this.”", "zh-HK": "“… All I need say is that the sentence, to me, is entirely appropriate. It was a gentle claim made in a social context, but that is reflected in the gentle sentence of 3 months which is at the bottom end of the bracket for claiming to be a member of a triad society. Triad societies are a continuing menace to our society and claiming to be a member is bound to attract a custodial sentence in circumstances like this.”" } }, { "doc_id": 77, "seg_id": 51, "translation": { "en": "Given the circumstances of the present case, the respective sentences of 15 months and 12 months imposed by the trial judge on D2 and D5 on the charge of claiming to be a member of a triad society are manifestly excessive. In the opinion of this Court, a term of 3 months’ imprisonment is sufficient to reflect the gravity of the crime. The trial judge mentioned about AG v Lee Chi Man [1980] HKLR 483. The defendant of the case claimed to an undercover police officer:", "zh-HK": "以本案的情況來說，原審法官就第二及第五被告人自稱三合會成員而分別判監15個月及12個月是明顯過高，本庭認為3個月監禁已足以反映罪案的嚴重性。原審法官提及 AG v Lee Chi Man [1980] HKLR 483一案，該案被告人向臥底警員聲稱：" } }, { "doc_id": 77, "seg_id": 52, "translation": { "en": "“… he was a member of Sun Yee On Triad Society, that he was due to be promoted, that he had several boys and girls following him and that he would in future recruit members in his own name.”", "zh-HK": "“… he was a member of Sun Yee On Triad Society, that he was due to be promoted, that he had several boys and girls following him and that he would in future recruit members in his own name.”" } }, { "doc_id": 77, "seg_id": 53, "translation": { "en": "The defendant was fined $2,000. An appeal was lodged by the Attorney General. The Court of Appeal took the view that the appropriate sentence should be 1 year’s imprisonment. As it was an application by the Attorney General for review of the sentence, the sentence was therefore reduced to 9 months. It was stressed by the Court of Appeal in the case that:", "zh-HK": "被告人被判罰款$2,000，律政司上訴。上訴法庭認為恰當的刑罰應是1年監禁，但由於那是律政司申請加刑，故將刑罰減至9個月。在該案，上訴法庭強調：" } }, { "doc_id": 77, "seg_id": 54, "translation": { "en": "“… each case must be looked at in the light of its own facts.”", "zh-HK": "“… each case must be looked at in the light of its own facts.”" } }, { "doc_id": 77, "seg_id": 55, "translation": { "en": "The factual background of the case was rather unusual. The case took place against a background where there was a large-scale undercover operation through which a syndicate trafficking in dangerous drugs and a gigantic triad society had been crumbled, as can be seen from the following paragraph of the judgment:", "zh-HK": "該案案情背景並不尋常，案發背景是一項大型的臥底行動，該行動瓦解了一個販毒集團和一個規模龐大的三合會。由判詞以下一段可見：" } }, { "doc_id": 77, "seg_id": 56, "translation": { "en": "“… round the clock raids commenced on several hundred locations in the Kowloon Area resulting in the arrest of a large number of persons who were subsequently charged with various offences relating to their involvement with this society.”", "zh-HK": "“… round the clock raids commenced on several hundred locations in the Kowloon Area resulting in the arrest of a large number of persons who were subsequently charged with various offences relating to their involvement with this society.”" } }, { "doc_id": 77, "seg_id": 57, "translation": { "en": "Although the defendant was not arrested as a direct result of the operation, and surrendered to the police and pleaded guilty instead, it can be seen from the background of the case that it is very much different from that of the present case.", "zh-HK": "被告人雖然並非在該行動直接被捕，而是自動投案及認罪，但從該案背景可見，該案與本案有很大的分別。" } }, { "doc_id": 77, "seg_id": 58, "translation": { "en": "The third category of offence includes the following charge: D4 of the present case paid a visit to the grave of a triad founder at the Chinese Permanent Cemetery during the Ching Ming Festival in April 2008 (Charge 14 against him: acting as a member of a triad society). In our view, with more than 100 people visiting a cemetery in broad daylight during the Ching Ming Festival, it might cause fear to other grave-sweepers. This is particularly so on grave-sweeping occasions where very often there would be children, women and the elderly around. As such, the circumstances are more serious than “blowing the whistle” in the nighttime (at an entertainment establishment, for instance). This Court, therefore, is of the view that the starting point should be fixed at 2 years. The reason why we adopt the starting point of 2 years, not 2 years and several months, is that the maximum penalty for this offence is 3 years’ imprisonment, which should only be adopted in cases of the same kind with the most serious circumstances.", "zh-HK": "第三類罪行包括以下的控罪：本案的第四被告人，（其控罪十四：以三合會成員身分行事）在2008年4月的清明時節在華人永遠墳場參拜一名三合會發起人的墳墓。本庭認為，在光天化日之下有100多人於清明時節拜山，可能會引起其他掃墓人士的恐慌，尤其是掃墓的場合多有小童和婦孺在場，所以情況比晚上（例如在娛樂場所）吹雞較嚴重，因此本庭認為量刑起點應訂於2年。本庭採取2年，而非2年數個月作為量刑起點的理由，是因為這項控罪的最高刑罰為3年，而最高刑罰應留待同類案件最嚴重的情況時才採用。" } }, { "doc_id": 77, "seg_id": 59, "translation": { "en": "Charge 6 against D4 is about his commending PW4 for his ability in dealing with matters: “You are promoted by one rank. You are my immediate follower.” In view of the maximum penalty for this offence being 3 year’s imprisonment, the original sentence of imprisonment for 2 years and 9 months imposed by the trial judge is indeed excessive. In the opinion of this Court, the appropriate term should be 12 months.", "zh-HK": "第四被告人的控罪六是讚賞控方第四證人的辦事能力：「紮你一輩，你直接跟我」。以這項控罪的最高刑期為3年來看，原審法官判處2年9個月監禁實屬過高。本庭認為適當的刑期應為12個月。" } }, { "doc_id": 77, "seg_id": 60, "translation": { "en": "Charge 9 is related to an incident in which the whistle was blown at Choi Hung Store on 16 January 2008. The defendant, as submitted by Counsel Mr. Chui, dealt with the conflict by way of patching up the quarrel and reconciling the parties concerned. After a party including D6 had blown the whistle, D4 not only did not blow the whistle, but quite the contrary, he even asked D2 Ah Mike to leave the scene. In the light of such circumstances, the sentence of 2 years and 9 months imposed by the trial judge is far above the appropriate standard. Hence the sentence on this charge is reduced by this Court to 15 months.", "zh-HK": "控罪九是有關2008年1月16日在彩虹士多吹雞一事。正如徐大律師所說，當時他是以息事寧人的手段處理衝突，第六被告一方人吹雞，第四被告人不但沒有吹雞，更反叫第二被告人亞Mike離開現場。從這種情況來看，原審法官所判的2年9個月是遠離恰當的標準，所以本庭將這項控罪的刑期減至15個月。" } }, { "doc_id": 77, "seg_id": 61, "translation": { "en": "This Court, having taken into account the above-mentioned facts, is of the view that a total term of 33 months can appropriately reflect the gravity of the offences committed by D4.", "zh-HK": "本庭考慮過上述案情後，認為總刑期33個月已恰當地反映第四被告人所犯的罪行的嚴重性。" } }, { "doc_id": 77, "seg_id": 62, "translation": { "en": "As regards D6’s appeal against conviction, the ground of appeal submitted by Counsel Mr. Kwan is that PW4 mistakenly identified D6. The evidence, however, clearly shows that PW4 had seen D6 on two occasions. The first occasion was on 24 October 2007, and the second one on 16 January 2008. In a police identification parade, when PW4 positively identified D6 and another person, PW4 pointed out that these two persons were at the positions of No. 7 and No. 8, but he did not specifically point out who was at No. 7 or No. 8. During the trial, PW4 agreed to the suggestion by counsel for the Prosecution that the position occupied by D6 was No. 7. In fact, according to the undisputed evidence, the relevant record of the identification parade shows that at the time D6 was standing at the position of No. 8, while the other person who was positively identified by PW4 was at the position of No. 7.", "zh-HK": "至於第六被告人就定罪上訴，關大律師的上訴理由是控方第四證人誤認第六被告人。但證據清楚顯示控方第四證人曾兩次見過第六被告人。第一次是2007年10月24日，第二次是2008年1月16日。在警方的列隊認人手續中，控方第四證人認出第六被告人及另一人時，控方第四證人指出該兩名人士的位置是7號及8號，但沒有明確地分別點出兩人中誰是7號或8號。審訊時，控方第四證人認同控方律師所指第六被告人的位置是7號。事實上，根據無爭議的證供，有關認人的紀錄顯示第六被告人當時是站在8號的位置，而控方第四證人認出的另一人的位置是7號。" } }, { "doc_id": 77, "seg_id": 63, "translation": { "en": "The trial judge clearly dealt with this in paragraphs 102 to 105 of his Reasons for Verdict. The relevant evidence, as submitted by the Prosecution, was in fact quite sufficient, which included:", "zh-HK": "原審法官在裁決理由書第102至105段已作清楚處理。正如控方所說，有關證據其實相當充份。包括：" } }, { "doc_id": 77, "seg_id": 64, "translation": { "en": "“(i)PW4 testified that he came to know D6 through the introduction by D2 at Choi Hung Store on 24 October 2007;", "zh-HK": "「(i)控方第四證人作供說在2007年10月24日，在彩虹士多經第二被告認識第六被告；" } }, { "doc_id": 77, "seg_id": 65, "translation": { "en": "The testimony given by D2 in defence regarding this aspect is consistent with that of PW4;", "zh-HK": "第二被告自辯時此方面證供與控方第四證人吻合；" } }, { "doc_id": 77, "seg_id": 66, "translation": { "en": "The illumination at the time was sufficient. PW4 remained at Choi Hung Store for about 2 hours during which there was sufficient time for him to observe the face of D6 who was then responsible for attending to customers at Choi Hung Store;", "zh-HK": "當時燈光充足，控方第四證人留在彩虹士多約 2小時，有足夠時間觀察第六被告容貌，而他當時在彩虹士多負責招呼客人；" } }, { "doc_id": 77, "seg_id": 67, "translation": { "en": "D2 also mentioned that subsequently, on the evening of 16 January 2008, when D6 was at Choi Hung Store, he and D6 had a quarrel. The content of their conversation is consistent with the evidence of PW4;", "zh-HK": "其後在2008年1月16日晚，第二被告也提及 第六被告身處彩虹士多時，並與他發生口角，對話內容與控方第四證人口供一致；" } }, { "doc_id": 77, "seg_id": 68, "translation": { "en": "On that evening, D6 was seen to be staying outside Choi Hung Store for about half an hour. His demeanour was conspicuous. Further, Cheung Dik-hong was not present at the scene on that evening;", "zh-HK": "當晚在彩虹士多外見到第六被告約半小時，他 當時言行舉止引人注目，加上張荻康當晚根本不在場；" } }, { "doc_id": 77, "seg_id": 69, "translation": { "en": "PW4 positively identified D6 inside Choi Hung Store in the presence of other police officers on the evening of 26 June 2008; and", "zh-HK": "2008年6月26日晚控方第四證人在其他警員 見證下，在彩虹士多內認出第六被告；及" } }, { "doc_id": 77, "seg_id": 70, "translation": { "en": "During the trial, PW4 also positively identified D6 amongst a large number of defendants.”", "zh-HK": "在審訊中控方第四證人亦從眾多被告中把第六被告認中。」" } }, { "doc_id": 77, "seg_id": 71, "translation": { "en": "Further, as regards the details of Charge 11 against D6, i.e. acting as a member of a triad society (14K Triad Society) outside Choi Hung Store, it was pointed out by Counsel Mr. Kwan that as can be seen from the facts of the case, D6 was not a member of 14K Triad Society, and instead he belonged to Wo Shing Wo. As submitted by the Prosecution, however, the Prosecution is not required to prove to which triad society D6 belonged, and there are sufficient reasons to convict him so long as he did act as a member of a triad society.", "zh-HK": "另外，就第六被告人的控罪十一的罪行詳情，即在彩虹士多外以三合會成員（14K三合會社團）成員身份行事，關大律師指出，由案情可見，第六被告人亦不是14K三合會會員，而是屬於和勝和。但正如控方所說，控方不需證明第六被告人是屬於哪個三合會的會員，只要他以三合會成員的身份行事便已有充份理由被定罪。" } }, { "doc_id": 77, "seg_id": 72, "translation": { "en": "D7 was involved because he had taken part in the incident on 16 January 2008. Despite his presence at the scene where the whistle was blown, his sentence should be 9 months in the light of his role as a “soldier” in the offence. Although the sentence imposed on D7 has been reduced to 9 months, the term that he has served already exceeds 9 months. The hearing of this appeal could have been brought before this Court at the beginning of this year. It was, however, postponed to 2 June due to some problem with fixing a date in consultation with counsel’s diary. We suggest that if similar situation arises in future, counsel should explain to his client and, unless there are extraordinary reasons, should consider returning the brief so that the client can be represented by another counsel, in order to avoid any delay to the client’s appeal.", "zh-HK": "第七被告人因參與2008年1月16日事件，就算他有份在吹雞的場合，以他在罪行中扮演“soldier”的角色，其刑期應為9個月。雖然第七被告人的刑期被減至9個月，但第七被告人已服的刑期已超過9個月，本庭原可於今年年初審理本上訴，但由於大律師的排期問題，延至6月2日才聆訊。本庭建議以後如有同類情形，大律師應向當事人解釋；而且除非有非常特殊理由，大律師應考慮放棄代表該當事人，改由其他大律師代表，以免耽誤當事人的上訴。" } }, { "doc_id": 77, "seg_id": 73, "translation": { "en": "Representation:", "zh-HK": "第二被告人（定罪）：無律師代表，親自應訊。" } }, { "doc_id": 77, "seg_id": 74, "translation": { "en": "D2 (re: conviction) in person, present", "zh-HK": "第二及第五被告人（判刑）：由法律援助署委派李炳剛、區紹恩律師行轉聘關唐利大律師代表。" } }, { "doc_id": 77, "seg_id": 75, "translation": { "en": "Kwan Tong-lee, instructed by Au and Associates (assigned by D.L.A.) for D2 and D5 (re: sentence)", "zh-HK": "第四被告人（定罪）：無律師代表，親自應訊。" } }, { "doc_id": 77, "seg_id": 76, "translation": { "en": "D4 (re: conviction) in person, present", "zh-HK": "第四被告人（判刑）：由法律援助署委派譚潘葉律師行轉聘徐福亮大律師代表。" } }, { "doc_id": 77, "seg_id": 77, "translation": { "en": "Steve Chui, instructed by Tam, Pun and Yipp (assigned by D.L.A.) for D4 (re: sentence)", "zh-HK": "第六被告人（定罪）：由黃馮律師行轉聘關唐利大律師代表。" } }, { "doc_id": 77, "seg_id": 78, "translation": { "en": "Kwan Tong-lee, instructed by Wong, Fung and Co. for D6 (re: conviction) and by Wong, Fung and Co. (assigned by D.L.A.) for D6 (re: sentence)", "zh-HK": "第六被告人（判刑）：由法律援助署委派黃馮律師行轉聘關唐利大律師代表。" } }, { "doc_id": 77, "seg_id": 79, "translation": { "en": "Steve Chui, instructed by Tam, Pun and Yipp for D7 (re: sentence out of time)", "zh-HK": "第七被告人（逾期判刑）：由譚潘葉律師行轉聘徐福亮大律師代表。" } }, { "doc_id": 77, "seg_id": 80, "translation": { "en": "Alice Chan Shook-man, Senior Public Prosecutor of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級檢控官陳淑文代表。" } }, { "doc_id": 78, "seg_id": 1, "translation": { "en": "Hon D Pang JA (giving the Reasons for Judgment of the Court):", "zh-HK": "高等法院上訴法庭法官彭偉昌頒發上訴法庭判案理由書：" } }, { "doc_id": 78, "seg_id": 2, "translation": { "en": "This is an appeal from the District Court. The Appellant admitted one charge of “theft”, contrary to section 9 of the Theft Ordinance, Cap. 210, and was sentenced to 2 years and 4 months’ imprisonment by the trial judge (Judge Sham) and disqualified from driving for 6 years. The Appellant was aggrieved and made an application for leave to appeal against sentence. The application was dealt with by a single judge and the hearing for the appeal proper was heard by this Court. See paragraph 28 of this Judgment for the decision on the appeal.", "zh-HK": "本案源於區域法院。上訴人承認一項‘盜竊’罪，違反香港法例第210章《盜竊罪條例》第9條，被原審法官（沈小民法官）判囚2年4個月，另加取消駕駛資格6年。上訴人不服，就判刑提出上訴許可申請。此申請經單一法官批准，正式的上訴則由本庭進行聆訊，結果見本判詞第28段。" } }, { "doc_id": 78, "seg_id": 3, "translation": { "en": "Summary of facts", "zh-HK": "案情撮要" } }, { "doc_id": 78, "seg_id": 4, "translation": { "en": "The following is the trial judge’s summary of facts in the case:", "zh-HK": "以下是原審法官對本案案情的撮要：" } }, { "doc_id": 78, "seg_id": 5, "translation": { "en": "“2.The facts show that the car owner Mr. Chow parked his light goods vehicle in Tsui Ping North Estate Carpark at around 9 a.m. on 13 January 2015. When he returned to the Carpark at around 6:30 p.m. on the same day to collect his vehicle, he found it missing and therefore reported the matter to the police.", "zh-HK": "「2.案情透露，車主周先生於2015年1月13日早上9 時許，將輕型貨車停泊於觀塘翠屏北邨停車場，至同日下午約6時半返回停車場打算取車時，發現車輛不翼而飛，於是報警。" } }, { "doc_id": 78, "seg_id": 6, "translation": { "en": "3.At around 8 a.m. on the following day, the defendant drove the missing vehicle and entered the precinct of the wet market of Yue Wan Estate. He parked the vehicle there and then left. Later someone discovered the missing vehicle and called the police. The police later arrived at the scene and waited there for the suspect to show up. At around 11:30 on that day, the defendant came. He opened the light goods vehicle and sat at the driver’s seat. The police therefore took action and arrested the defendant.”", "zh-HK": "3.翌日早上8時許，被告人駕駛有關失車進入漁灣邨街市範圍，把車停泊在該處然後離去。期後有人發現失車並報警，警察稍後到場等候可疑人出現。至當日約11時半，被告人出現開啟該輛輕型貨車並坐於司機位上。警察於是採取行動，將被告人拘捕。」" } }, { "doc_id": 78, "seg_id": 7, "translation": { "en": "Plea of mitigation", "zh-HK": "輕判請求" } }, { "doc_id": 78, "seg_id": 8, "translation": { "en": "The following is the defence’s plea of mitigation:", "zh-HK": "接著是辯方的輕判請求：" } }, { "doc_id": 78, "seg_id": 9, "translation": { "en": "“4.The defendant is now 40 years old and has 33 previous criminal convictions, among which 8 convictions related to acts of dishonesty. The Court adjourned sentence and called for a background report on the defendant. Simply put, the report stated that the defendant was not able to have a stable job because he often broke the law and had to go in and out of prison in the past. As for his family relationship, it was harmonious.", "zh-HK": "「4.被告人現年40歲，過往有33項刑事紀錄，8項涉及不誠實的罪行。法庭將判刑押後，以便索取一份被告人的背景報告。簡單而言，報告指出被告人過往由於經常犯事入獄，未能有一份固定工作。就家庭方面，則關係和睦。" } }, { "doc_id": 78, "seg_id": 10, "translation": { "en": "5.The defence counsel submits that the defendant committed this crime in a moment of greed. He asks the Court for a chance to turn a new leaf. The defendant will go out to find a job and resume a decent life after he is released from prison. The defence counsel also submits that the vehicle involved in the case was not expensive and it was found quickly. So the case only caused inconvenience to the vehicle owner for roughly only half day. The crime was committed by the defendant alone and it was not a car theft by an organized gang.”", "zh-HK": "5.辯方律師指，今次被告人因一時貪念而犯下本案，希望法庭給予被告人一次重新做人的機會。被告出獄後會找一‍份工作，重回正軌。辯方律師亦強調，涉案車輛價值不高，而且很快便被尋回，對車主造成約半天之不便。此案為被告人一人行事，並非集團式的偷車活動。」" } }, { "doc_id": 78, "seg_id": 11, "translation": { "en": "Sentencing by the trial judge", "zh-HK": "原審量刑" } }, { "doc_id": 78, "seg_id": 12, "translation": { "en": "Having cited briefly the case of HKSAR v Li Cheung Yin CACC 313/2011 and a few cases mentioned by the Court of Appeal in that case, the trial judge said the following:", "zh-HK": "在略述過香港特別行政區訴李翔然 CACC 313/2011一‍案，以及上訴法庭在該案判詞提到的數宗案例之後，原審法官表示：" } }, { "doc_id": 78, "seg_id": 13, "translation": { "en": "“8.It is obvious that in respect of the present case, the vehicle stolen by the defendant was a light goods vehicle. Based on the precedents, the Court of Appeal considered that a sentence of 3 to 5 years’ imprisonment would be appropriate for this type of offences.”", "zh-HK": "「8.明顯地就本案而言，被告人盜竊一輛輕型貨車，根據有關案例，這一類罪行，上訴庭的意見為3至5年。」" } }, { "doc_id": 78, "seg_id": 14, "translation": { "en": "He said:", "zh-HK": "他說：" } }, { "doc_id": 78, "seg_id": 15, "translation": { "en": "“9.Apart from the defendant’s guilty plea, there is no other persuasive factor in mitigation. I take 3 years’ imprisonment as the starting point for sentencing. According to the information provided by the prosecution, the defendant was released on 11 October 2014 and the present case took place on 13 January 2015. In other words, the defendant committed another serious crime only 3 months and 2 days after his release from prison. It is an aggravating factor for the defendant to commit another crime within a short time since his release. In respect of this factor, I impose an additional 3 months’ imprisonment.", "zh-HK": "「9.求情方面，除被告人認罪外，並無其他有力的求情因素。本席以3年作為量刑起點。根據控方提供予法庭的資料，被告人於2014年10月11號出獄，而本案發生於2015 年1月13日，即出獄後三個月零兩日，被告人便干犯另一項嚴重的罪行。出獄後短時間內再干犯另一罪行，是加重這罪行的嚴重性，就這一點，本席加刑3個月。" } }, { "doc_id": 78, "seg_id": 16, "translation": { "en": "10.As for the defendant’s criminal conviction records, he has 8 convictions that involved acts of dishonesty. In this regard, I consider that the defendant is a repeated offender of this type of crimes. The previous sentences have obviously failed to have a deterrent effect on the defendant. In respect of this factor, I impose an additional 3 months’ imprisonment. The defendant pleaded guilty and is entitled to a one-third discount. The sentence imposed is therefore 2 years and 4 months’ imprisonment.”", "zh-HK": "10.至於被告人的案底，過往有8項與不誠實有關，就此情況，本席認為被告人是這類罪行的積犯，明顯地過往的刑罰對被告人起不到阻嚇作用，就這一點，本席再加刑3 個月，認罪扣減三分一，最後刑期為2年4個月。」" } }, { "doc_id": 78, "seg_id": 17, "translation": { "en": "As for whether a qualification order (commonly known as the suspension order) is appropriate, the trial judge made the following conclusion:", "zh-HK": "至於俗稱停牌令的適用，原審法官則有以下結論：" } }, { "doc_id": 78, "seg_id": 18, "translation": { "en": "“11.Pursuant to section 69 of the Road Traffic Ordinance, the Court considers ordering that the defendant be disqualified from driving. It is understood that the defendant has never had a valid driving licence. He first committed a driving offence in 1993 and reoffended in 2009. He had two similar convictions of driving offence in 2011. In view of that, I consider that it is a must that the defendant be prohibited from driving for a period of time, and that he be disqualified from obtaining a driving licence and prohibited from driving.", "zh-HK": "「11.法庭現考慮根據《道路交通條例》第69條，考慮將被告人停牌。據法庭了解，被告人其實從未擁有任何正式駕駛執照。最早干犯駕駛罪行為1993年，至2009年亦再有這類駕駛罪行，2011年亦干犯兩次此類駕駛罪行。考慮到這個情況，本席認為頒令被告人於一段時間內，不得申領任何車輛的駕駛執照及禁止被告人駕駛是必須的。" } }, { "doc_id": 78, "seg_id": 19, "translation": { "en": "12.After consideration, it is ordered that the defendant be disqualified for 6 years, during which he is disqualified from obtaining or holding a driving licence of any class of vehicle, and is prohibited from driving.”", "zh-HK": "12.經考慮後，頒令被告人停牌6年，期間被告人不得申領或持有任何車輛的駕駛執照，亦不可以駕駛車輛。」" } }, { "doc_id": 78, "seg_id": 20, "translation": { "en": "Granting of leave to appeal", "zh-HK": "准予上訴的許可" } }, { "doc_id": 78, "seg_id": 21, "translation": { "en": "Originally, the Appellant acted in person in his application for appeal. His ground was that it was not fair to him because he committed only one offence and his disqualification period of 6 years was too long as compared with other offenders. Moreover, he also argued that he was only greedy for the valuables inside the vehicle. It was only when he found that the vehicle key inside the compartment that he tried to start off the vehicle and drive it away for “a joyride”. The Appellant emphasized that he had no accomplice when he committed the crime. He did not change the licence plate to cover up his act and therefore, it was a case of “taking conveyance without authority” and he should be dealt with accordingly.", "zh-HK": "上訴人原本以自辯的形式申請上訴，理由是，與別案相比，他只干犯了一項罪行，停牌的時間卻長達6年，並不公平。此外，上訴人說，他只是貪圖涉案車輛內的財物，期間發現當中有汽車車匙，才嘗試把車開動及駛走作「遊車河」的用途。上訴人強調，他犯案時沒有同夥，把車取走後沒有換掉登記號碼牌等掩人耳目的行為，所以案件只應按‘未獲授權而取用運輸工具’罪來處理。" } }, { "doc_id": 78, "seg_id": 22, "translation": { "en": "However, according to the Judgment by the single judge, there could only be two reasons why the Appellant was granted leave to appeal. The reasons are as follows:", "zh-HK": "然而，根據單一法官的《判案書》顯示，上訴人獲批不服判刑的上訴許可，原因只有兩個：" } }, { "doc_id": 78, "seg_id": 23, "translation": { "en": "The trial judge could have erred in principle and/or imposed a sentence that was manifestly excessive because he imposed the sentence on two grounds, namely that the Appellant committed the offence shortly after his release from prison and that he had numerous similar convictions in the past. (hereinafter as “Issue 1”)", "zh-HK": "原審法官以上訴人出獄後不久即再度犯案，及有多項同類前科兩個理由各自加刑，可能屬原則犯錯及/或令最終刑期明顯過重。（後稱‘爭議一’）" } }, { "doc_id": 78, "seg_id": 24, "translation": { "en": "The trial judge could have made a procedural mistake as he did not comply with the provision in section 69A of the Road Traffic Ordinance to direct that the disqualification period was not to start to run until the Appellant finished serving the term of imprisonment. The disqualification period of 6 years that he ordered could also be manifestly excessive. (hereinafter as “Issues 2A and 2B”)", "zh-HK": "原審法官未按《道路交通條例》第69A條，指示停牌時段不得在上訴人刑滿出獄前開始計算，可能屬程序出錯。他把停牌令的時段定為6年，也可能屬明顯過重。（後稱‘爭議二A’和‘二B’）" } }, { "doc_id": 78, "seg_id": 25, "translation": { "en": "This appeal", "zh-HK": "本上訴" } }, { "doc_id": 78, "seg_id": 26, "translation": { "en": "i)The question is not about the sentencing starting point", "zh-HK": "i）問題不在量刑基準" } }, { "doc_id": 78, "seg_id": 27, "translation": { "en": "As seen from paragraph 8 above, the single judge did not allow the Appellant to appeal on the ground that the sentencing starting point was too high. The counsel for the Appellant also expressed in the course of the appeal proper that he would not pursue that ground of appeal.", "zh-HK": "從上文第8段可見，單一法官並未批准上訴人以本案量刑基準過高為由而提出上訴，在正式上訴期間才代表上訴人的大律師亦表明放棄這個理由。" } }, { "doc_id": 78, "seg_id": 28, "translation": { "en": "However, for the sake of completeness, I will also point out that the theft of a vehicle is a serious crime for the following reasons:", "zh-HK": "不過，為求全面，本庭仍然會指出，偷車是嚴重罪行，理由包括：" } }, { "doc_id": 78, "seg_id": 29, "translation": { "en": "Regardless of the make/model of vehicle, it is a valuable property worth a lot of money.", "zh-HK": "不論車種，汽車本身已經是貴重物品，價值不菲。" } }, { "doc_id": 78, "seg_id": 30, "translation": { "en": "A vehicle is also a private space that occasionally or even permanently stores all sorts of items that bear personal data and/or tend to expose confidential information (e.g. phones, name cards, different types of documents/letters, and all types of memory cards or access cards).", "zh-HK": "汽車也是一個私人空間，它會間中甚至長期擺放著各種個人及/或可洩露敏感資料（如電話、名片、各式文件/信件和各種記憶卡或出入閘卡）的物件。" } }, { "doc_id": 78, "seg_id": 31, "translation": { "en": "A vehicle is often parked in the public place, making it prone to be a target of theft.", "zh-HK": "汽車經常停泊在公眾地方，容易成為竊取的目標。" } }, { "doc_id": 78, "seg_id": 32, "translation": { "en": "To the owner of a private vehicle, the loss of his vehicle will cause him great inconvenience as he will lose his means of transportation. And when a vehicle is used for a commercial or work purpose, the loss of it means that the owner will lose his paraphernalia for making money, which in turn will cause additional economic loss or even affect his livelihood.", "zh-HK": "對於私家車的車主來說，失掉車輛是失掉代步工具，會造成很大的不便；對於商用車或用於工作的車輛的車主來說，失掉車輛是失掉生財器具，會造成額外的經濟損失甚或影響生計。" } }, { "doc_id": 78, "seg_id": 33, "translation": { "en": "Regardless of the purpose of thieves and whether the number of vehicle thefts is rising sharply, the severity of vehicle thefts is reflected in the four points mentioned above. If other factors are involved (e.g. the vehicle theft is carefully planned, the stolen vehicle is resold or used to commit other crimes), they will be considered as aggravating factors.", "zh-HK": "無論賊人的目的何在、偷車案的數目又是否飆升，偷車案的嚴重性皆可從上述四點反映出來。若然案件涉及其他情節（如賊人計劃周詳、失車被非法轉售或用作干犯其他案件的工具），則可被視為加重罪責的因素。" } }, { "doc_id": 78, "seg_id": 34, "translation": { "en": "For reasons stated above and in view of the actual facts in the case, we do not think that it was manifestly excessive for the trial judge to take 3 years’ imprisonment as the starting point for sentencing. That basis is consistent with the general sentencing quantum laid down in cases. The Appellant had stolen the vehicle for at least 17 hours and had not returned or discarded it during the interval, which was obviously contrary to the circumstances of “taking conveyance without authority”. As a matter of fact, the Appellant pleaded guilty to “theft”, meaning that he admitted having the intent to permanently deprive others of their property. The offence of “theft” and that of “taking conveyance without authority” are no comparison.", "zh-HK": "基於以上的考慮，以及本案的具體事實，本庭不認為原審法官以3年作為量刑基準是明顯過高。這個基準符合案例所顯示的一‍般量刑幅度。上訴人把車偷去最少十七小時而沒有歸還或放棄的跡象，也明顯與‘未獲授權而取用運輸工具’的情况有别。事實上，上訴人承認‘盜竊’，亦即承認有永久剝奪別人財產的意圖，所以跟‘未獲授權而取用運輸工具’不能相提並論。" } }, { "doc_id": 78, "seg_id": 35, "translation": { "en": "ii)The problem of doubly aggravated sentence", "zh-HK": "ii）雙重加刑的問題" } }, { "doc_id": 78, "seg_id": 36, "translation": { "en": "The cruxes of the case are twofold. Firstly, it is “Issue 1”.", "zh-HK": "本案的真正問題有兩個，首先是‘爭議一’。" } }, { "doc_id": 78, "seg_id": 37, "translation": { "en": "Experience shows that some judges will enhance the sentencing starting point if the culprit commits an offence shortly after his release from prison. If the culprit has numerous similar convictions in the past (also known as a persistent offender), that will definitely be a recognized factor for enhancing the sentencing starting point: HKSAR v Chan Pui Chi [1992] 2 HKLRD 830.", "zh-HK": "根據經驗，個別法官會因犯人在出獄後不久即再度作案而把量刑基準提高。如果犯人有多項同類前科（亦即慣犯），就更肯定是調升量刑基準的認可因素：見HKSAR v Chan Pui Chi [1992] 2 HKLRD 830。" } }, { "doc_id": 78, "seg_id": 38, "translation": { "en": "But, as McWalters J said in the judgment of HKSAR v Yeung Kam Tung CACC 427/2012 (date of judgment: 19 March 2013), in the case that both factors exist and as far as enhancing sentencing starting point is concerned, the factor of reoffending shortly after release is no different from that of having multiple similar convictions in the past. The former is at most proof of the latter. He said:", "zh-HK": "然而，正如麥偉德法官在HKSAR v Yeung Kam Tung CACC 427/2012 （判案書日期：2013年3月19日）的判詞指出，在兩者同時存在的情況下，作為提高量刑基準的因素，出獄後不久即再度犯案和有多項同類前科在性質上是沒有分別的。極其量，前者只是證明後者的證據。他說：" } }, { "doc_id": 78, "seg_id": 39, "translation": { "en": "“12.The judge identified two aggravating features as justifying the enhancement of the starting point that she adopted for sentencing this applicant. The first was the fact that the offence was committed on the day of his discharge from prison for a like offence. The second was his history of offending which caused her to characterise him as a persistent offender.", "zh-HK": "“12.The judge identified two aggravating features as justifying the enhancement of the starting point that she adopted for sentencing this applicant. The first was the fact that the offence was committed on the day of his discharge from prison for a like offence. The second was his history of offending which caused her to characterise him as a persistent offender." } }, { "doc_id": 78, "seg_id": 40, "translation": { "en": "13.Essentially, the first basis for aggravation is nothing more than potentially further evidence that the applicant is a persistent offender ….”", "zh-HK": "13.Essentially, the first basis for aggravation is nothing more than potentially further evidence that the applicant is a persistent offender ….”" } }, { "doc_id": 78, "seg_id": 41, "translation": { "en": "Given the above, the trial judge has undoubtedly committed an error in principle when he imposed an additional 3 months on the basis that the two factors co-existed.", "zh-HK": "既然如此，本案原審法官按上述兩個同時存在的因素先後加刑3個月，無疑是原則犯錯。" } }, { "doc_id": 78, "seg_id": 42, "translation": { "en": "It is also worth mentioning that though the Appellant has 10 (and not 8 as mentioned by the trial judge) previous convictions of “dishonesty”, only 5 of which are “thefts”. And looking at the severity of the sentences imposed, those convictions could not possibly be thefts of vehicles. Regarding the convictions that are directly related to vehicles, the record shows that the Appellant has only one conviction of “taking conveyance without authority” in 1993 when he was only 18 years old.", "zh-HK": "還要一提的是，上訴人雖然有十項（而非原審法官所指的八項）‘不誠實’定罪紀錄，但當中只有五項屬‘盜竊’，而且根據其判罰的輕重來看也不可能是偷車。至於和汽車直接有關的定罪，紀錄所顯示的就只有1993年一項‘未獲授權而取用運輸工具’，但上訴人當時只有18歲。" } }, { "doc_id": 78, "seg_id": 43, "translation": { "en": "In the circumstances, the trial judge enhanced the sentencing starting point by a total of 6 months. To us, that was manifestly excessive. We think that an enhancement of 2 months will be appropriate.", "zh-HK": "在相關的背景下，原審法官把上訴人的量刑基準提高至合共6個月，本庭認為是明顯過重。本庭認為，一個合適的調升幅度是2個月。" } }, { "doc_id": 78, "seg_id": 44, "translation": { "en": "Conclusion: the sentencing starting point should remain to be 3 years and be enhanced by 2 months as the Appellant is a persistent offender. The Appellant has pleaded guilty and is entitled to a one-third discount, therefore the sentence to be imposed is reduced to 25 months (i.e. 2 years and 1 month).", "zh-HK": "結論：本案的量刑基準應維持於3年，之後因上訴人是慣犯而提高2個月；上訴人認罪，可得三分一的扣減，就回落至25 個月（即2年1個月）。" } }, { "doc_id": 78, "seg_id": 45, "translation": { "en": "iii)Excessively long period of disqualification", "zh-HK": "iii）停牌時段過長的問題" } }, { "doc_id": 78, "seg_id": 46, "translation": { "en": "A careful look at section 69A the Road Traffic Ordinance will show that the section is only applicable to a defendant convicted of “a scheduled offence” (See section 69A(1)(a) to (d)). It is not applicable to a defendant who is disqualified for a conviction of “stealing a motor vehicle”) (See section 69(1)(c)). In other words, there was no need for the trial judge to specify that the disqualification period was not to start to run until the Appellant finished serving the term of imprisonment. That would also mean that “Issue 2A” does not exist and that the disqualification period would start to run from the same day the trial judge made the order.", "zh-HK": "細看之下，《道路交通條例》第69A條只適用於以一‍系列「列表罪行」入罪的被告（見第69A(1)(a)至(d)條）。它不適用於因「偷竊汽車」（“stealing a motor vehicle”）而被取消駕駛資格的被告（見第69(1)(c)條）。換言之，原審法官並沒有指出停牌時段不得在上訴人刑滿出獄前開始計算的須要。也就是說，‘爭議二A’並不存在，有關的停牌令會在原審法官判刑的同一天開始計算。" } }, { "doc_id": 78, "seg_id": 47, "translation": { "en": "As for “Issue 2B”, what will a 6-year disqualification period mean according to the original sentence (2 years and 4 months)? It would mean that the Appellant would be disqualified from obtaining a driving licence within 3 years and 8 months since his release from prison. If the Appellant is granted an early discharge for good conduct and behaviour in prison (usually the term is shortened by a third), he would even be disqualified from obtaining a driving licence for a longer period of 4 years and 5 months after his release from prison.", "zh-HK": "至於‘爭議二B’，若然以原本的刑期（2年4個月）來計算，一個6年長的停牌時段會意味著甚麼？就是上訴人在出獄後的3 年8個月內都沒有資格申領駕駛執照。假設上訴人在獄中行為良好而得到提前釋放（一般是提前三分一），他出獄後沒有資格申領駕駛執照的時段更會長至4年5個月。" } }, { "doc_id": 78, "seg_id": 48, "translation": { "en": "We understand that the Appellant has never obtained a driving licence since 1993 (when he was 18 years old), but from the same year (1993) he has intermittently committed multiple offences related to driving. His last few offences were convicted in a year as close as 2012 (“driving a vehicle without a driving licence” and “driving on the road a vehicle of a class specified in schedule”) and that was why the trial judge imposed a 6-year disqualification order. The trial judge believed, “To prohibit the defendant from driving is a must!”", "zh-HK": "本庭理解，上訴人自1993年（18歲）以來都沒有考取過任何駕駛執照，卻從同年（1993年）開始即斷續犯下與駕駛有關的多項罪行，最後幾項（‘無牌駕駛’和‘在道路上駕駛附表所指的種類的車輛’等）更近在2012年，以致原審法官頒下6年長的停牌令。原審法官認為：「禁止被告人駕駛是必要的」。" } }, { "doc_id": 78, "seg_id": 49, "translation": { "en": "But according to the authoritative decision of the England Court of Appeal in the case R v Cooksley [2004] 1 Cr App R (S) 1 in this regard, a disqualification order is forward looking and preventive rather than punitive. It is designed to protect road users in the future from an offender who has shown himself to be a real risk on the roads (See paragraph 40 of the judgment):", "zh-HK": "不過，正如英國上訴法院在這方面屬權威典據的案例R v Cooksley [2004] 1 Cr App R (S) 1指出，停牌令是屬於前瞻及預防性而非回顧及懲罰性的，它的作用在於為未來的道路使用者提供保護，免受已自證為會為道路安全帶來實質威脅的人所累（該案判詞第40 段）：" } }, { "doc_id": 78, "seg_id": 50, "translation": { "en": "“…. The main purpose of disqualification is …. ‘forward looking and preventive rather than backward looking and punitive’. It is designed to protect road users in the future from an offender who had shown himself to be a real risk on the roads.”", "zh-HK": "“…. The main purpose of disqualification is …. ‘forward looking and preventive rather than backward looking and punitive’. It is designed to protect road users in the future from an offender who had shown himself to be a real risk on the roads.”" } }, { "doc_id": 78, "seg_id": 51, "translation": { "en": "It is also said in paragraph 43 of the same judgment that the length of the disqualification should not be tailored to take into account the anticipated date of early release of the offender. On the other hand, an excessively long period of disqualification might be counter-productive because an offender who is obsessed with cars or requires a driving licence to earn his or her living may yield to the temptation to drive without a valid licence:", "zh-HK": "同一判詞的第43段亦指出，雖然停牌令的長短，不應以犯人的最早獲釋期為考慮，但一個不可抹殺的可能是，對迷戀汽車或以駕駛汽車為職業的人而言，一個過長的停牌令會產生反效果，令這類人士因抵受不住試探而無牌駕駛：" } }, { "doc_id": 78, "seg_id": 52, "translation": { "en": "“We do not agree that the length of the ban should be tailored to take into account the anticipated date of early release of the offender. On the other hand, we accept that to extend the ban for a substantial period after release can be counter-productive particularly if it is imposed on an offender who is obsessed with cars or who requires a driving licence to earn his or her living because it may tempt the offender to drive while disqualified”.", "zh-HK": "“We do not agree that the length of the ban should be tailored to take into account the anticipated date of early release of the offender. On the other hand, we accept that to extend the ban for a substantial period after release can be counter-productive particularly if it is imposed on an offender who is obsessed with cars or who requires a driving licence to earn his or her living because it may tempt the offender to drive while disqualified”。" } }, { "doc_id": 78, "seg_id": 53, "translation": { "en": "Coming back to the present case, the facts show that though the Appellant has persistently committed the offence of driving a vehicle without a licence, he has never been convicted of “dangerous driving” or “careless driving”. As he kept driving a vehicle, it is probably a temptation too strong for him to resist. For the above two reason, this Court is of the view that a 6-year disqualification order is undoubtedly wrong in principle and excessively severe.", "zh-HK": "反觀本案上訴人，他雖然不斷無牌駕駛，卻從來沒有因為‘危險駕駛’或‘不小心駕駛’被定罪。由於他不斷駕駛，駕駛對上訴人而言亦應該有著某種難以抗拒的試探。基於上述兩個原因，本庭認為6 年的停牌令無疑是原則有錯及明顯過重。" } }, { "doc_id": 78, "seg_id": 54, "translation": { "en": "This Court considers that a shorter disqualification order may perhaps remind the Appellant to take the driving licence test as soon as possible. This is another signal that this Court gives him (the Appellant has on a few occasions been disqualified from driving). If the Appellant really comes to his senses, the road users will have greater protection in the future because at least the Appellant will not be driving a vehicle without third party insurance. If the Appellant really comes to his senses, he will not risk driving a vehicle or even driving a stolen vehicle whilst being disqualified.", "zh-HK": "本庭認為，一個較短的停牌令，或許會對提醒上訴人須盡快考取駕駛執照有幫助。這是法庭對他再一次提出的信號（上訴人之前曾被數度取消駕駛資格）。假如上訴人真的有所覺悟，未來的道路使用者會有更大的保障，起碼上訴人不會再在沒有第三者保險的情況下駕駛。假如上訴人真的有所覺悟，他在停牌期間也不會冒險駕駛甚或偷車駕駛。" } }, { "doc_id": 78, "seg_id": 55, "translation": { "en": "Conclusion: the disqualification order made by the trial judge should be reduced from 6 years to one of 4 years.", "zh-HK": "結論：原審法官頒下的停牌令，應由6年減至4年。" } }, { "doc_id": 78, "seg_id": 56, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 78, "seg_id": 57, "translation": { "en": "The Appellant’s appeal is allowed. The sentence of 2 years and 4 months is now set aside and a sentence of 2 years and 1 month of imprisonment is imposed instead. The 6-year disqualification is also set aside and the Appellant is disqualified from driving for 4 years instead.", "zh-HK": "上訴人的上訴得直。2年4個月的刑期撤銷，改判2 年1 個月。6 年的停牌令也撤銷，改判取消駕駛資格4年。" } }, { "doc_id": 78, "seg_id": 58, "translation": { "en": "Ms Catherine Ko, SADPP(Ag), of the Department of Justice, for HKSAR", "zh-HK": "答辯人：由律政司署理高級助理刑事檢控專員高寶翠代表香港特別行政區。" } }, { "doc_id": 78, "seg_id": 59, "translation": { "en": "Ms Sezen Chong and Mr Amos Ma, instructed by Hong Kong Bar Association Free Legal Service, for the Appellant", "zh-HK": "上訴人：由大律師公會法律義助服務轉聘莊君如大律師及馬俊敏大律師代表。" } }, { "doc_id": 79, "seg_id": 1, "translation": { "en": "The applicant pleaded guilty before District Judge Sham to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The drug involved was 8.50 grammes of a mixture containing 6.82 grammes of heroin hydrochloride. On 29 May 2014, Judge Sham sentenced the applicant to 38 months’ imprisonment. The applicant now applies for leave to appeal to the Court of Appeal against the sentence.", "zh-HK": "申請人在區域法院法官沈小民席前承認一項販運危險藥物罪，違反香港法例第134章第4(1)(a)及(3)條。涉案的危險藥物為內含6.82克海洛英鹽酸鹽的8.50克混合劑。2014年5月29 日，沈法官判處申請人38個月監禁。申請人現申請准許就判刑向上訴法庭提出上訴。" } }, { "doc_id": 79, "seg_id": 2, "translation": { "en": "Facts", "zh-HK": "案情" } }, { "doc_id": 79, "seg_id": 3, "translation": { "en": "The facts, admitted by the applicant, are as follows. At about 5:27 pm on 9 January 2014, the police were carrying out an anti-narcotic operation in the vicinity of Soy Street, Kowloon. During the operation, a car appeared and pulled over at a traffic light junction in Soy Street. The applicant approached the car. He spat out a pellet of drug, handed it to the driver who was inside the car, and received some money from him. A police officer intercepted the driver and found a pellet of drug in red wrapping from his jacket upon search.", "zh-HK": "申請人承認的案情透露，2014年1月9日下午約5:27 時，警方在九龍豉油街附近執行反毒品行動。期間有一輛汽車駛至，在豉油街燈位處停下，申請人上前，從口中吐出一粒毒品交給車上的司機，及從他收取金錢。警員其後截停該名司機，從他所穿的外衣搜出一粒紅色包裝的毒品。" } }, { "doc_id": 79, "seg_id": 4, "translation": { "en": "Meanwhile, another police officer intercepted the applicant and, upon search, found from his pant pocket 15 pellets of drug in red wrappings and 5 pellets of drug in white wrappings. The applicant admitted under caution that he sold No. 4 heroin on behalf of someone for a reward of $700.", "zh-HK": "另一方面，警員亦截停申請人，進行搜查。警員在申請人所穿的褲子的口袋搜出15粒紅色包裝和5粒白色包裝的毒品。申請人在警員警誡下，承認代人出售4號海洛英，以賺取700元報酬。" } }, { "doc_id": 79, "seg_id": 5, "translation": { "en": "On 11 January 2014, while in the custody of the Correctional Services Department, the applicant twice discharged drugs: he discharged 6 pellets of drug in red wrappings and 9 pellets of drug in white wrappings on the first occasion and one pellet of drug in red wrapping and 4 pellets of drug in white wrappings on the second. He said under caution that he had swallowed those pellets accidentally upon his arrest on 9 January.", "zh-HK": "2014年1月11日，申請人在懲教署拘留期間，先後兩次從身體排出毒品，分別是6粒紅色包裝和9粒白色包裝的毒品，及1粒紅色包裝和4粒白色包裝的毒品。申請人在警誡下，表示在1月9日被拘捕時意外地把這些毒品吞下。" } }, { "doc_id": 79, "seg_id": 6, "translation": { "en": "The above pellets contained a total of 6.82 grammes of heroin hydrochloride.", "zh-HK": "上述的毒品共含6.82克海洛英鹽酸鹽。" } }, { "doc_id": 79, "seg_id": 7, "translation": { "en": "The sentence at first instance", "zh-HK": "原審的判刑" } }, { "doc_id": 79, "seg_id": 8, "translation": { "en": "The applicant is 34 years old. He has 22 previous criminal convictions. Eight of them are related to drugs or Part I poison, 3 of which are convictions for trafficking in a dangerous drug. His last conviction prior to the present one is dated December 2009 and is for possession of a dangerous drug, for which and he was sentenced to a drug addiction treatment centre.", "zh-HK": "申請人34歲，之前共有22次刑事定罪紀錄，其中8次與毒品或第I類毒藥有關，當中有3次是販運危險藥物的定罪。最後一次定罪在2009年12月，所干犯的是一項管有危險藥物，被判往戒毒所接受戒毒治療。" } }, { "doc_id": 79, "seg_id": 9, "translation": { "en": "By way of mitigation, counsel for the applicant submitted that the applicant started taking drugs since the age of 20 and that he fully cooperated with the police after his arrest. Counsel also stated that the applicant’s three previous convictions for trafficking in a dangerous drug dated back to 1999, 2000 and 2003 respectively and that prior to the present offence he had not been committing any drug trafficking offence for 11 years. Counsel therefore requested Judge Sham not to enhance the sentence on the basis that the applicant was a persistent offender.", "zh-HK": "代表申請人的律師在減刑陳詞中，指出申請人自20歲吸毒，在本案自被拘捕後與警方充分合作。她亦指出，申請人的三次販運危險藥物定罪是早在1999年、2000年及2003年，而他在本案之前已有11年沒有干犯販運毒品的罪行，她因此要求沈法官不要基於申請人是積犯而加刑。" } }, { "doc_id": 79, "seg_id": 10, "translation": { "en": "Judge Sham adopted 4 years’ imprisonment as a starting point. Since it was the fourth time the applicant committed the offence of trafficking in a dangerous drug, Judge Sham considered him a persistent offender and found it necessary to enhance the sentence in order to strengthen deterrence. He therefore enhanced the starting point to 4 years and 9 months. Giving the one-third discount for the applicant’s guilty plea, Judge Sham sentenced him to 38 months’ imprisonment.", "zh-HK": "沈法官在判刑時採用4年監禁為量刑基準。基於申請人是第4次干犯販運危險藥物罪，沈法官認為他是一名積犯，需要加刑以增加阻嚇作用。他因此加刑9個月至4年9個月。由於申請人承認控罪，沈法官給予三分一刑期扣減，判處申請人38個月的監禁刑期。" } }, { "doc_id": 79, "seg_id": 11, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 79, "seg_id": 12, "translation": { "en": "In the Notice of Application for Leave to Appeal, the applicant did not put forward any grounds of appeal.", "zh-HK": "申請人在上訴許可通知書中，沒有提出任何上訴理由。" } }, { "doc_id": 79, "seg_id": 13, "translation": { "en": "At the hearing, he made written submissions to the effect that, given the quantity of the drug involved in the present case, the starting point of 4 years and enhancement of 9 months adopted by Judge Sham were manifestly excessive. The applicant referred to a District Court case (HKSAR v Yu Kwok Ming, DCCC 322/2012) and stated that, despite the larger quantity of heroin involved and the extensive drug trafficking conviction records of the defendant in that case, the judge adopted a starting point of 3 years and 9 months and did not enhance the sentence. In comparison, the applicant submitted that his sentence was manifestly excessive and unfair.", "zh-HK": "在聆訊時，申請人提交了書面陳詞。當中指出以本案的毒品重量，沈法官採用4年為量刑基準，再加刑9個月，是明顯過重。申請人也提及一宗區域法院的案件（香港特別行政區訴余國明DCCC 322/2012），指該案所涉海洛英重量較本案為多，而該案被告人亦有多次販運危險藥物的刑事定罪紀錄，但法官不但沒有加刑，而且採用3年9個月為量刑起點。申請人認為與該案相比，他被判的刑期顯然過重，而且有欠公平。" } }, { "doc_id": 79, "seg_id": 14, "translation": { "en": "Reasons for judgment", "zh-HK": "本庭的判決理由" } }, { "doc_id": 79, "seg_id": 15, "translation": { "en": "In R v Lau Tak Ming & Others [1990] 2 HKLR 370, the Court of Appeal laid down sentencing guidelines for trafficking in heroin. For a quantity of 10 grammes or below, the starting point is 2 to 5 years’ imprisonment. The present case involves 6.82 grammes of heroin. The starting point of 4 years adopted by Judge Shum is in line with the guidelines set out in Lau Tak Ming and is not manifestly excessive.", "zh-HK": "在R v Lau Tak Ming & Others [1990] 2 HKLR 370案中，上訴法庭就販運海洛英訂出量刑指引。如涉案海洛英重量在10克或以下，量刑基準是2至5年的監禁。本案所涉的海洛英重量是6.82 克。沈法官採用4年為量刑基準，符合Lau Tak Ming案的指引，並非明顯過重。" } }, { "doc_id": 79, "seg_id": 16, "translation": { "en": "In HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 at 833B-834C, the Court of Appeal held that repeated commission of the same type of offence by a defendant is an indication that the previous sentences imposed on him are not serving any deterrent effect and therefore, to reflect the gravity of the matter and protect the general public, the court will impose a deterrent sentence.", "zh-HK": "在HKSAR v Chan Pui Chi [1999] 2 HKLRD 830，833B-834C，上訴法庭指出，若被告人屢次重犯同類罪行，這顯示法庭過往的判刑不能起阻嚇之用。是故，為反映其嚴重性及保護社會大眾，法庭在量刑時，會判處具阻嚇性的刑期。" } }, { "doc_id": 79, "seg_id": 17, "translation": { "en": "In the present case, the applicant has a number of drug-related convictions, including convictions in 1999, 2000 and 2003 for trafficking in dangerous drugs, for which he was sentenced to imprisonment for 18 months, 22 months and 24 months respectively. The applicant is obviously a persistent offender of this type of offence. This also shows that the previous sentences imposed on him are not serving a deterrent effect. It was not unreasonable for Judge Sham to enhance the starting point in order to strengthen deterrence. And while the enhancement by 9 months was on the high side, it was not manifestly excessive in the circumstances of the present case, particularly in light of the fact that the applicant was carrying 41 small packets of drug on the day of arrest.", "zh-HK": "在本案中，申請人之前已有多項與毒品有關的定罪，其中在1999年、2000年和2003年更分別因販運危險藥物罪被判處18個月、22個月和24個月監禁。顯然，申請人是這類罪行的積犯。同時，這亦反映法庭之前的刑期對他不能收阻嚇的效果。沈法官認為應把量刑基準上調，使刑期具阻嚇性，是無可厚非。而沈法官把量刑基準調高9個月雖然是嚴峻，但在本案的情況而言，尤其考慮到申請人被捕當日攜有41粒毒品，這並非明顯過重的情況。" } }, { "doc_id": 79, "seg_id": 18, "translation": { "en": "Other than the applicant’s guilty plea, I can discern no other mitigating factors. The one-third discount to sentence that Judge Sham gave to the applicant for his guilty plea was appropriate.", "zh-HK": "本案除卻申請人承認控罪外，沒有其他可減輕刑罰的因素。沈法官就申請人承認控罪給予三分一刑期扣減，做法恰當。" } }, { "doc_id": 79, "seg_id": 19, "translation": { "en": "The applicant has relied on HKSAR v Yu Kwok Ming in support of his assertion that his sentence is manifestly excessive and unfair. In Yu Kwok Ming, the defendant was charged with trafficking in 7.26 grammes of heroin hydrochloride. Similar to the present case, the defendant discharged some further drugs while he was in custody. That defendant had 8 previous convictions, 4 of which were for trafficking in a dangerous drug. The judge adopted a starting point of 3 years and 9 months and, noting that some of the drug in question was for the defendant’s self-consumption, reduced the starting point to 3 years and 4½ months. The judge then reduced the term by one-third discount on account of the defendant’s guilty plea and, in addition, gave the defendant a further one-month discount in sentence in light of his involvement in voluntary work. In the end, the defendant was sentenced to 26 months’ imprisonment.", "zh-HK": "申請人援引香港特別行政區訴余國明案，以支持他的刑期明顯過重和不公平的說法。在余國明案中，被告人被控以販運7.26克的海洛英鹽酸鹽。與本案一樣，該被告人在被拘留期間從身體再排出一些毒品。該被告人之前有8次刑事定罪紀錄，其中有4次是販運危險藥物罪。法官採用3年9個月為量刑基準，因案中部分毒品是該被告人自用的，法官把量刑基準下調至3年4½ 個月。除給予三分一刑期扣減以反映該被告人承認控罪，法官亦因該被告人的義務工作，而給予額外一個月的刑期扣減。最終該被告人被判26個月監禁。" } }, { "doc_id": 79, "seg_id": 20, "translation": { "en": "It has to be pointed out that sentencing decisions made by the District Court are not binding on the Court of Appeal and only serve as a reference. Furthermore, in Yu Kwok Ming the starting point of 3 years and 9 months was on the low side in light of the quantity of drug involved. More importantly, defendants are to be sentenced on the basis of the circumstances of each case. For example, in Yu Kwok Ming, the judge accepted that some of the drug was for self-consumption, and this was a factor which warranted a reduction of the starting point. No such factor or any other mitigating factor exists in the present case. Put simply, it is not for this Court to rule that the sentence imposed in the present case is manifestly excessive or unfair merely because the defendant in another case was sentenced to a shorter term.", "zh-HK": "本席必須指出，區域法院的判刑決定，對上訴法庭沒有約束力，只具參考作用。再者，以余國明案中的毒品重量，3年9個月的量刑基準屬偏低。更為重要的是法庭在量刑時，必須以案中的情況作為依歸。比如在余國明案中，法官接納部分毒品是作自用，這是調低量刑基準的因素，而本案卻沒有類似或其他減刑因素。簡而言之，法庭不能因另案的判刑較輕，便裁定本案的判刑是明顯過重或不公平。" } }, { "doc_id": 79, "seg_id": 21, "translation": { "en": "The applicant’s intended appeal against sentence has no merits. Leave to appeal is refused accordingly.", "zh-HK": "申請人擬提的刑期上訴欠缺理據。本席拒絕批予上訴許可。" } }, { "doc_id": 79, "seg_id": 22, "translation": { "en": "Mr Jones Tsui, Senior Public Prosecutor of the Department of Justice, for the respondent.", "zh-HK": "申請人：無律師代表，親自出庭。" } }, { "doc_id": 79, "seg_id": 23, "translation": { "en": "The applicant in person, present.", "zh-HK": "答辯人：由律政司高級檢控官徐和中代表。" } }, { "doc_id": 80, "seg_id": 1, "translation": { "en": "The applicant（蘇子揚）was charged that he raped a girl (X), who was under the age of 17, two times on 12 August 2012. The scene of crime was X’s home at Tin Yiu Estate, Tin Shui Wai (her home).", "zh-HK": "申請人(蘇子揚)被指在2012年8月12日兩次強姦一名不足17歲的女童(X)，案發地點是X在天水圍天耀邨的居所(該居所)。" } }, { "doc_id": 80, "seg_id": 2, "translation": { "en": "The applicant pleaded not guilty and was tried before Li J (the trial judge) with a jury. On 30 May 2013 he was unanimously found guilty of both counts of rape by the jury, and was sentenced on the following day to imprisonment of 7 years and 6 months by the trial judge.", "zh-HK": "申請人否認控罪，並在高等法院法官李瀚良(原審法官)會同陪審團席前受審。2013年5月30日，申請人被陪審團一致裁定兩項控罪罪名都成立，並在翌日被原審法官判入獄7年6個月。" } }, { "doc_id": 80, "seg_id": 3, "translation": { "en": "Mr Liu of counsel and Mr Poon of counsel, for the applicant, applied for leave to appeal against his conviction and / or sentence.", "zh-HK": "申請人不服定罪及判刑，由廖遠明和潘兆斌兩位大律師提出申請，要求法庭批准他就定罪及/或判刑上訴。" } }, { "doc_id": 80, "seg_id": 4, "translation": { "en": "Background facts and prosecution case", "zh-HK": "背景事實和控方案情" } }, { "doc_id": 80, "seg_id": 5, "translation": { "en": "The applicant was familiar with X and her family members, including her mother and elder brother, and would visit her at her home two or three times a week to listen to her telling him what was on her mind.", "zh-HK": "申請人熟悉X和其家人，包括X的母親及哥哥，並會每星期兩至三次前往該居所探望X，聆聽她傾訴心事。" } }, { "doc_id": 80, "seg_id": 6, "translation": { "en": "X stated that between 1 and 2 pm on 12 August 2012 the applicant came to her home to visit her as usual. At the material time she was alone at her home. She lay on the bed and talked with the applicant about recommending her elder brother for a job. In the course of their conversation, the applicant walked up to X, grabbed her wrists tightly with his right hand, removed her trousers and briefs with his left hand and then took off the trousers he was wearing. At that moment X was lying flat on the bed. She tried to drive him away from her by kicking him and pushing him but to no avail, because of the strength of the applicant. The result was that the applicant succeeded in raping her and ejaculated on her belly. After that, X cleaned her body, threw the paper towel into the rubbish bin, went to the toilet and put on a black one-piece dress. In the process of her doing these, she smoked a cigarette/cigarettes. Later, she checked her phone call record and came to know that her mother was urging her to see her, so she intended to go out to see her mother. At that time the applicant indicated that he wanted to do it once more but X refused. The applicant ignored her refusal. He pressed her on the bed, grasped her wrists with his right hand and removed the trousers of the two of them with his left hand. He raped her again and ejaculated in her body. X said that in the course of his doing so she had told him to “fuck off” but failed to resist the applicant’s attack on her. After it was over, X cleaned herself again and left her home with the applicant together. When they were going down in the lift, she drank the lemon tea which the applicant brought along. Then they met X’s mother and they together went to different places shopping until sometime between 6 and 7 pm. Only then did the applicant leave X and her mother. In this process, X did not complain to her mother or anyone about the applicant’s abominable behavior. X explained that she did not report the matter to the police or complain but decided to “grin and bear it” because she was afraid that when her mother learned that she might kick her out to the street. She said she did not tell her boyfriend / boyfriends about it either for fear that her boyfriend / boyfriends would not want her anymore because of this. X told the applicant through WhatsApp that she worried that she would be pregnant, and the applicant said he would take care of the abortion expenses. A few days later, X’s mother noticed that there was something strange in X’s mood and behavior, so she checked X’s WhatsApp messages. On 16 August 2012, when being questioned closely by her mother, X said the applicant “did” her. X also made similar complaints to her two boyfriends respectively surnamed Lau and surnamed Cheng, and to one other men, whose name was unknown. X accused the applicant of having done “outrageous things” to her and “raped” her. Her accusations were recorded in the WhatsApp messages which she sent to the three men by using her mobile telephone. Despite X’s objection, her mother, after discussing the matter with the applicant, decided to report to the police. At that time, the applicant asked X’s mother not to call the police.", "zh-HK": "X指申請人在2012年8月12日下午約一時許如常前往該居所探望她。當時X單獨在該居所，並躺在床上和申請人談論關於介紹工作給X的哥哥之事宜。期間，申請人走近X，用右手抓緊X的兩隻手腕，並用左手脫去X的面褲和內褲，然後除去自己穿著的褲。當時X平睡在牀上試圖用力踢開及推開申請人，但不成功，原因是申請人力氣大。結果申請人成功強姦X，並在她的肚部射精。其後X清潔身體，並將紙巾丟棄在垃圾桶及去厠所換上一條黑色連身裙，期間X更有吸食過香煙。後來X看到電話記錄，知悉母親催促她會面，故準備離家出外和母親會合。當時申請人表示要再多做一次，但X拒絕。申請人沒有理會X反對，並將X按在牀上，用右手抓著X的兩隻手腕及用左手脫去兩人的褲後，再強姦X，並在她的體內射精。X指在過程中有叫申請人“死開”，但未能成功抗拒申請人的侵犯。事後X再清潔自己後和申請人一起離開該居所。兩人在乘坐升降機時，X有飲用申請人帶來的檸檬茶。兩人隨後和X的母親會合，並一起前往不同地點購物直至6時許，申請人才和X母女分手。期間X沒有向母親和任何人投訴申請人的惡行。X表示沒有報警或投訴，及決定“硬啃”事件，原因是她害怕母親知悉後會趕她出街。X指自己亦沒有將事件告知男朋友，原因是害怕男朋友因此不要她。X有WhatsApp給申請人傾談害怕有身孕一事，而申請人表示會負責有關墮胎費用。隨後數天，X的母親發覺X的脾氣有異，故查看她的WhatsApp記錄。2012年8月16 日在母親的追問下，X指遭申請人“搞咗”。X亦有向她的兩名姓劉和姓鄭的男朋友和一不知名男子作出相同指控。X指申請人“亂嚟”及“強姦”她。X的投訴錄載在X手機向該三名男子發出的WhatsApp短訊對話內。雖然X反對，但她的母親和申請人相討事件後，決定要報警。期間，申請人亦有要求X的母親不要報警。" } }, { "doc_id": 80, "seg_id": 7, "translation": { "en": "X admitted that in 2012 she had on separate occasions had sexual intercourse with two different boyfriends. She further admitted that in the evening of 15 August 2012 she had sexual intercourse with her boyfriend surnamed Lau.", "zh-HK": "X承認在2012年曾分別和兩名不同男朋友性交。X更承認在2012年8月15日晚上亦曾和劉性男朋友性交。" } }, { "doc_id": 80, "seg_id": 8, "translation": { "en": "Policemen seized a paper towel stained with the semen of an unknown male, but the DNA extracted had nothing to do with the applicant. X admitted that the paper towel was connected with her boyfriend surnamed Lau.", "zh-HK": "警員有在該居所的垃圾桶檢獲沾有不知名男子精液DNA的紙巾，但DNA和申請人無關。X承認該紙巾和她的劉姓男朋友有關。" } }, { "doc_id": 80, "seg_id": 9, "translation": { "en": "The applicant was formally arrested by the police in the small hours of 17 August 2012. Under caution he said, “I did do that, but we did it in a state of half willing and half resisting. I know I was wrong” A policeman took down this reply in his police notebook. The applicant wrote down the formulaic statement and signed to confirm its content. Later, the applicant, in the company of his solicitor, participated in a video recorded interview with the police, but he did not make any further confession. On 17 and 20 August 2012, X was examined by a doctor, but no abnormalities or injuries were found on her body, including her private parts. She was not pregnant.", "zh-HK": "申請人在2012年8月17日凌晨遭警員正式拘捕，警誡下申請人說:「我係有做過，但係我哋係半推半就嘅情況下攪嘅，我都知我唔啱喇。」警員將上述回應記錄在他的警察記事冊內，而申請人亦有在記事冊內寫下宣言及簽名確認其內容。其後申請人在律師陪同下，再接受警員錄影會面，但申請人沒有再作出任何招認。醫生在2012年8月17日和20日檢查X，但沒有發現她的身體，包括私處，有任何異狀或傷痕，X亦沒有懷孕。" } }, { "doc_id": 80, "seg_id": 10, "translation": { "en": "Apart from the above evidence, X’s mother Madam Wong said in her evidence that on 12 August 2012 she began to observe that X was in an agitated mood, that she wore an “angry countenance”, “shut herself away” and “threw things”. Her behavior showed that she was unhappy and she told her to “leave her alone”. Madam Wong became worried, so she checked X’s WhatsApp messages. When she learned what had happened, in the evening of that day she asked the applicant to have a meeting to discuss the matter. Madam Wong said that at that time X was afraid when she saw the applicant. When she decided to call the police, the applicant grabbed her clothes and begged her not to do so. Madam Wong said she knew that X had different boyfriends, but she was not clear about the sexual relationship between X and her boyfriends. X’s mother denied that X had told her that she had sexual intercourse with the applicant five times. She also said she did not mention anything about buying morning-after pills.", "zh-HK": "除了上述證據外，X的媽媽黃‍女士作供時指她在2012年8月12日開始發覺X情緒激動、黑口黑面、“匿埋”及“掟嘢”、表現不開心及叫她“唔好理佢”。黃‍女士感到不安，故查看X的WhatsApp記錄。當她知悉事件後，便在當天晚上相約申請人討論事件。黃‍女士指當時X害怕看見申請人。當她決定報警時，申請人拉住她的衣衫要求她不要報警。黃‍女士表示知道X有過不同男朋友，但不清楚X和男朋友們的性關係。X的媽媽否認X曾向她表示和申請人有過5次性交，亦沒有提過去買“事後丸”一事。" } }, { "doc_id": 80, "seg_id": 11, "translation": { "en": "Grounds of defence", "zh-HK": "答辯理由" } }, { "doc_id": 80, "seg_id": 12, "translation": { "en": "The applicant admitted that he had sexual intercourse with X, but he claimed that he proceeded with her consent, so he denied raping her. The defence case was that X was uninhibited and active in sexual affairs. In spite of her young age, she had many sexual partners and had sex with them frequently. In their cross-examination of X, the defence established that between August 2011 and August 2012 she had, at different times, four boyfriends. The defence alleged that X deliberately lied to falsely accuse the applicant. The applicant further alleged that the policeman put down in the notebook things which he had never said in order to frame him.", "zh-HK": "申請人承認有和X性交，但聲稱是在X同意下進行，故否認強姦控罪。辯方的立場是X是一名性開放及性活躍的人，雖然她年紀輕輕，但已有多名性伴侶，並經常和他們性交。辯方盤問X時確立她在2011年8月至2012年8 月期間先後有4名男朋友。辯方指X是故意說謊來誣告申請人。申請人亦指警員將一些他沒有說過的話記錄在記事冊內來陷害他。" } }, { "doc_id": 80, "seg_id": 13, "translation": { "en": "When giving evidence in defence, the applicant gave a detailed account of his relationship with X. He said he was so familiar with X and her family members that he and X addressed each other as brother and sister. He said starting from the end of 2011 he regularly went to her home and later their relationship developed to such a stage that once or twice a week he and she would confide to each other secrets in their hearts.", "zh-HK": "申請人作供自辯時，詳述他和X的關係，他表示熟識X及其家人，並和X以契哥、契妹相稱。他指自2011 年年尾他便經常前往該居所，後來更發展到每星期有一、兩次和X傾訴心事。" } }, { "doc_id": 80, "seg_id": 14, "translation": { "en": "According to the applicant, he had sexual intercourse with X for the first time in mid January 2012. On that occasion he did not put on a condom and he ejaculated outside X’s body. When it was over, the two of them smoked cigarettes and chatted. The applicant went on and said that in mid March 2012, they, with mutual affection and agreement, made love with each other two times. During the first time he ejaculated outside X’s body, but ejaculated inside her during the second time. Since the applicant did not put on any condom, subsequently X bought and took morning-after pills.", "zh-HK": "申請人指在2012年1月中第一次和X性交，當時他沒有戴避孕套，並在X體外射精，事後兩人更吸煙及繼續傾談。申請人亦指在2012年3月中，他們在情投意合下兩次性交。第一次他在X體外射精;第二次則是在X體內射精。由於申請人沒有戴避孕套，故事後X有買“事後丸”服用。" } }, { "doc_id": 80, "seg_id": 15, "translation": { "en": "The applicant added that in late May 2012 the two of them made love with each other two more times, that again during the first time he ejaculated outside X and during the second time he ejaculated inside her, and that after the event X again took morning-after pills. The applicant emphasized that in between these two times they smoked and chatted.", "zh-HK": "申請人更指兩人在2012年5月尾再有兩次性交，亦是第一次在X體外射精;第二次則是在X體內射精。事後X亦有服用“事後丸”。申請人強調兩人第一、二次性交之間有吸煙及傾談。" } }, { "doc_id": 80, "seg_id": 16, "translation": { "en": "The applicant insisted that he knew that X had sexual intercourse with her other boyfriends many times, and that for this reason he had bought morning-after pills for X in late January, early March, late March, mid May and mid June 2012. He even said that Madam Wong was aware of X’s conduct and that she had asked him to buy morning-after pills for X.", "zh-HK": "申請人力稱知悉X有和她的其他男朋友多次性交，因此他在2012年1月尾、3月初、3月尾、5月中及6 月中有替X購買“事後丸”。申請人更指黃‍女士知悉X的行為，亦曾要求他替X購買“事後丸”。" } }, { "doc_id": 80, "seg_id": 17, "translation": { "en": "The applicant claimed that on 12 August 2012 X asked him to buy lemon tea and to take it to her home. Later, as suggested by him, the two of them took off their clothes and made love two times. During the first time the applicant ejaculated outside X. After they did that they smoked and X later changed her clothes and put on a black one-piece dress. When Madam Wong called to hurry X up, the applicant suggested to her that she could stall Madam Wong off by saying that she fell pain in her belly. The two of them made love once more. During this second time he ejaculated inside her, but he did not think of, nor did he talk with X about buying morning-after pills, because there was no time.", "zh-HK": "申請人聲稱在2012年8月12日，是X要求他買檸檬茶到該居所。其後在他建議下，雙方脫去衫褲後兩次性交。第一次申請人是在X體外射精，事後兩人吸煙，而X後來換上一條黑色連身裙。當黃‍女士來電催趕X時，申請人建議X以肚痛來拖延黃‍女士，而兩人再一次性交。雖然第二次申請人是在X體內射精，但他沒有想過、亦沒有和X商量買“事後丸”，原因是沒有時間。" } }, { "doc_id": 80, "seg_id": 18, "translation": { "en": "After that, they left her home together and went to meet X’s mother. When the two of them were in the lift, each of them held a packet of lemon tea in his or her hand. The applicant said that he and X and her mother went to various places together and he did not leave them until sometime between 6 and 7 o’clock.", "zh-HK": "其後兩人一起離開該居所並和X的媽媽會合，在升降機時，兩人都手持一包檸檬茶。申請人表示和X兩母女一起前往不同地方，直至6 時許才分手。" } }, { "doc_id": 80, "seg_id": 19, "translation": { "en": "The applicant agreed that he did indicate that he was willing to pay X’s abortion expenses and that he did say something like “It happened again!”. He explained that in March or April X’s mother had said that X was pregnant, so he said “It happened again!”, but he said he had forgotten the details of the matter.", "zh-HK": "申請人同意在WhatsApp有表示願意支付X的墮胎費用，又有說過“又中咗”等說話，申請人解釋說在3、4 月時，X的媽媽有說過X懷有身孕，故他說“又中咗”，但申請人表示已忘記事件的細節。" } }, { "doc_id": 80, "seg_id": 20, "translation": { "en": "The applicant also agreed that in the evening of 16 August 2012 he discussed the matter with X, her mother and other people, including X’s boyfriend Cheng. Subsequently, X’s mother decided to call the police. He admitted that he did keep holding her and asked her not to call the police.", "zh-HK": "申請人亦同意在2012 年8 月16 日晚上有和X、其母親及其他人，包括X的鄭姓男朋友相討事件。其後X的媽媽決定要報警。申請人承認有拉著她，要求她不要報警。" } }, { "doc_id": 80, "seg_id": 21, "translation": { "en": "The applicant said that when he and other people were in the vicinity of the police station, X said loudly “Don’t report it to the police,” and that she even moved her lips to the applicant to indicate that she was saying “Sorry” to him. The applicant’s position was that what X said and did showed that her accusations were not true.", "zh-HK": "申請人指眾人在警署附近時，X有大聲說“唔好報警”，更有用口形向申請人說“對唔住”。申請人的立場是X的言行顯示X的指控並非真確。" } }, { "doc_id": 80, "seg_id": 22, "translation": { "en": "The applicant maintained that although he signed on the policeman’s notebook, actually he had never said to the policeman anything like “half willing and half resisting” or “I know I was wrong”. He said he was not aware that he had the right to engage a lawyer until the record in the notebook was completed.", "zh-HK": "申請人表示雖然他有在警員記事冊上簽名，但事實上他沒有向警員說過“半推半就”及“我知我唔啱”等說話。申請人指他是在記事冊記錄完畢後才知悉自己有權聘請律師。" } }, { "doc_id": 80, "seg_id": 23, "translation": { "en": "Findings as to legal issues made by the trial judge", "zh-HK": "原審法官就法律議題作出的裁決" } }, { "doc_id": 80, "seg_id": 24, "translation": { "en": "The trial judge found that the messages which X sent through WhatsApp to the man surnamed Lau, the man surnamed Cheng and the man whose name was unknown, which said that the applicant had done “outrageous things” to her and raped her were recent complaints and were admissible as evidence. The trial judge held that even though X did not make the complaints until four days after the incident, in the circumstances of this case the complaints were made when the first reasonable opportunity arose, and that therefore the requirement of “recent” was fulfilled.", "zh-HK": "原審法官裁定X在2012年8月16日以WhatsApp發給劉姓、鄭姓和一名不知名男子的短訊，指申請人“亂嚟”及強姦她屬“近期投訴”，可以呈堂為證。原審法官指出雖然X的投訴是在事發後4天才作出，但以案件的背景而言，X的投訴是在首個合理機會出現時作出，故符合法例的“近期”要求。" } }, { "doc_id": 80, "seg_id": 25, "translation": { "en": "The trial judge considered that the applicant, apart from relying on the ground that X consented to have sexual intercourse with him as his defence, had also attacked the character of X and the policeman, which included the allegations that X was a promiscuous girl and had undergone abortion/ abortions before and the complaints that the policeman falsely testified that he had said things like “half willing and half resisting” and “I know I was wrong”, and recorded such things in his police notebook for the purpose of framing him. For this reason, the trial judge granted the prosecution’s application for disclosing the applicant’s conviction record to the jury.", "zh-HK": "原審法官認為申請人除了提出X是同意和他性交的答辯理由外，更有評擊X和警員的品格，包括指X濫交及曾墮胎，亦指警員假稱他有說過“半推半就”，“我知我唔啱”等說話，並將該些說話記錄在警員的記事冊內來誣告他。因此原審法官批准控方的要求，向陪審團披露申請人的犯罪記錄。" } }, { "doc_id": 80, "seg_id": 26, "translation": { "en": "The trial judge also found that the unusual way in which X behaved within the few days after the incident amounted to evidence of distress, and that it was necessary for him to give the jury directions as to evidence of distress.", "zh-HK": "原審法官亦認為X在事發後數天內表現的不尋常行為構成“困擾證據”(evidence of distress)。因此，他有必要向陪審團作出“困擾證據”指引。" } }, { "doc_id": 80, "seg_id": 27, "translation": { "en": "Directions given by the trial judge to the jury", "zh-HK": "原審法官向陪審團的指引" } }, { "doc_id": 80, "seg_id": 28, "translation": { "en": "The trial judge explained at great length to the jury the legal principles relevant to the charges and repeated to them in detail the evidence given by the two sides. He also gave them guidance concerning recent complaint, the applicant’s criminal convictions, the statement made by the applicant to the policeman under caution and evidence of distress. In respect of the evidence of distress, he said this to the jury:", "zh-HK": "原審法官非常詳細地向陪審團解釋和控罪有關的法律原則，並詳細地向他們覆述控辯雙方的證據。原審法官亦有就“近期投訴”、申請人的犯罪記錄、申請人在警誡下向警員說過的話和“困擾證據”引導陪審團。就“困擾證據”，原審法官對陪審團說:" } }, { "doc_id": 80, "seg_id": 29, "translation": { "en": "“Alright, (X)’s mother gave evidence that within the few days before 16 August (X) was moody. She hurled angry words at others, threw things and shut herself away; that’s why her mother checked the contents of her WhatsApp. Please pay attention. If you accept her mother’s description, that is to say, (X) was in a distressed condition, when you consider whether you should accept that she was in such a distressed condition, you should consider several factors. Distressed condition is in the same position as recent complaint. Neither of them can prove rape directly, whether there was or wasn’t rape. However, when you consider whether (X) is credible, you can take her distressed condition into account. Well, should the distressed condition of (X) give you -- should you accept this condition? You should consider these factors. Concerning (X)’s distressed condition, first, was her distressed condition feigned; and whether the alleged rape was the only cause of such condition. Perhaps (X) felt that she should not have sexual intercourse with the defendant; perhaps she was afraid that she would be pregnant; perhaps she did not consent to the sexual intercourse; and perhaps there are other possibilities. You should consider all the evidence in order to decide whether her distressed condition was only referable to the alleged rape, which was the only cause. If you consider that it was a show made by (X), or that there were other causes of her distressed condition, then you should disregard her distressed condition. If you are satisfied that her condition was not feigned, and that the alleged rape was the cause of her condition, then you can take such condition into account. In considering whether (X) is credible, you can take this evidence into account, because this evidence shows that (X) was consistent in her accusations against the defendant. As to how much weight you should give to her distressed condition, this is for you to decide.”", "zh-HK": "“好喇，(X)嘅母親就提到(X)喺8月16號之前嘅幾日佢情緒不穩嘅，就鬧人喇、掟嘢喇，匿埋喇咁，所以佢媽媽先至去查嗰個WhatsApp嘅內容嘅。大家要留意喇，如果你哋接受佢媽媽嘅描述，即係話(X)出現咗一啲困擾嘅神態喇，喺考慮是否接納呢個困擾神態嘅時候，大家應該考慮幾點，因為困擾神態同嗰個新近申訴同樣，唔可以直接去證明強姦，有抑或冇強姦，但係係喺你哋考慮(X)可唔可信嘅時候，你哋可以考慮呢個困擾嘅神態嘅。好喇，咁究竟(X)呢個困擾神態應唔應該畀你，你哋應唔應該接納呢？咁大家應該考慮幾點。(X)嘅困擾神態，第一，就係(X)嘅困擾神態係咪假裝嘅。強姦呢件事係咪導致(X)出現呢個困擾神態嘅唯一原因。因為(X)覺得自己唔應該同被告人性交喇，怕懷孕喇，亦都可能唔同意性交喇，又或者有其他可能性嘅，咁大家應該考慮全部嘅證據去決定究竟呢個困擾神態係咪源自嗰個強姦嗰件事嘅唯一原因。如果你哋認為(X)係假裝嘅，或者有其他原因導致佢困擾嘅神態嘅，咁你哋就唔好考慮呢個困擾神態喇。如果你哋確信(X)唔係假裝嘅，而佢強姦嗰件事係導致佢有呢個困擾嘅神態嘅話，咁你哋就可以考慮呢一樣嘢。當你哋考慮(X)可唔可信嘅時候，你哋可以考慮呢部分嘅證據，因為呢個證據顯示(X)係對被告人嘅指控係前後一致嘅。咁就至於你哋畀幾多比重呢一個困擾神態呢？咁呢個你哋自己決定喇。”" } }, { "doc_id": 80, "seg_id": 30, "translation": { "en": "In relation to what the applicant said to the policeman under caution, the trial judge told the jury:", "zh-HK": "就申請人在警誡下向警員說過的話，原審法官對陪審團說:" } }, { "doc_id": 80, "seg_id": 31, "translation": { "en": "“Alright, I go back to his oral reply. Even if you are sure that his reply is reliable, you still have to see whether there are any other reasons which will make you suspect that the content of this oral reply does not represent the fact, that is to say, it is not true, that is, it may be just nonsense uttered by the defendant or the product of some unidentified cause. Remember, you must be sure that this oral reply is true before you can rely on it as evidence.", "zh-HK": "“好喇，再講番嗰個口頭回應喇，如果你哋肯定嗰個回應係可靠嘅，你哋仍然需要睇睇有冇其他嘅原因令你哋懷疑呢個口頭回應嘅內容不是事實，即係話唔係真嘅。即係可能係被告人亂講或者咩嘢嘅啫，記住，你哋必須肯定呢個口頭回應係真嘅，先至可以倚賴佢要嚟做證供。" } }, { "doc_id": 80, "seg_id": 32, "translation": { "en": "Well, if you accept the defendant’s reply and the record in the notebook, there is still one thing you must consider, that is, what exactly is the meaning of that statement? Did ‘half willing and half resisting’ mean that the defendant denied raping her, or did ‘half willing and half resisting’ showed that he was not sure whether (X) consented? You should consider this carefully. At the final part of his reply the defendant said that he knew he was wrong. You, yourselves, read the whole of his statement. At the end he said ‘I know I was wrong’. He knew he was wrong; what does that mean? You must read the whole statement before you make your decisions. The most important thing is that you should bear in mind the three stages: First, you must first decide whether the defendant did say that. Second, does the defendant have any evidence which shows that he made this statement as a result of certain interference or influence, or because he had no lawyer? If he has such evidence and if you think what happened might be like that, then you should not accept this statement. Further, finally, if you consider that the defendant did say that and that it was not said as a result of any influence, you must still decide whether the content of this statement is true. Well, if it is true, you can accept it as evidence.”", "zh-HK": "好喇，如果你哋接受被告人嘅回應，同埋記事冊嘅紀錄嘅話，你哋仍然要考慮一樣嘢喎，就係究竟嗰句嘢係點解呢咁。半推半就係咪表示被告人否認強姦呢？抑或半推半就係表示佢唔肯定(X)係咪同意呢？你哋應該自己仔細咁樣去考慮。被告人喺回應嘅最後面就講話知道唔啱嘅，大家睇晒成句，你哋自己，最嬲屘佢話我知唔啱嘅。咁佢知唔啱又係咩嘢意思呢？咁大家要睇晒全句先至去決定。不過最重要嘅就係大家應該記住嗰三個階段，第一，首先要決定被告人有冇講先。第二，被告人有冇一啲證據證明被告人係受干擾，或者受影響，或者因為冇律師先至講呢句說話呢？如果有嘅話，你哋覺得可能係會咁嘅呢，就唔應該接受呢句說話喇。另外，最後就係如果你哋認為被告人有講，亦都冇受到任何嘢影響先至講，你哋仲要決定究竟佢講呢句嘢嗰個內容係咪真嘅。好喇，如果係真嘅，你哋可以接受為證據喇。”" } }, { "doc_id": 80, "seg_id": 33, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 80, "seg_id": 34, "translation": { "en": "Mr Liu put forward five grounds of appeal; four of which concern legal issues and one concerns the facts. The four grounds of appeal which concern legal issues are as follows:", "zh-HK": "廖‍大律師提出五項上訴理由，四項涉及法律議題;另一項則和事實有關。四項涉及法律議題的上訴理由如下:" } }, { "doc_id": 80, "seg_id": 35, "translation": { "en": "“(1)The trial judge should not have regarded the complaints which X made through WhatsApp to a man surnamed Lau, a man surnamed Cheng and a man whose name was unknown as recent complaints, because their identities had not been confirmed and they had never come to court to testify. Mr Liu emphasized that it was only after X’s mother discovered X and the applicant had sexual intercourse that X made the complaints.", "zh-HK": "(一)原審法官不應視X在2012年8月16日以whatsapp向劉姓、鄭姓和一名不知名男子作出的投訴視為“近期投訴”，原因是他們的身份未被確認而他們亦沒有出庭作供。廖‍大律師強調X是在其母親發現她和申請人發生性行為後才作出投訴的;" } }, { "doc_id": 80, "seg_id": 36, "translation": { "en": "(2)The trial judge erred in allowing the prosecution to disclose the applicant’s criminal record to the jury. Mr Liu stressed that since the issue of this case was whether X consented to sexual intercourse with the applicant, the applicant was entitled to assert that X voluntarily had sexual intercourse with him and use it as his defence without putting himself at risk that evidence about his character would be disclosed.", "zh-HK": "(二)原審法官錯誤容許控方將申請人的犯罪記錄向陪審團披露，廖‍大律師強調案件的爭議是X是否同意和申請人性交，因此申請人有權以X是自願和他性交作為答辯理由而無需冒其品格遭披露的風險;" } }, { "doc_id": 80, "seg_id": 37, "translation": { "en": "(3)The trial judge did not give proper or sufficient directions to the jury as to the evidence of distress.", "zh-HK": "(三)原審法官沒有恰當或充分地就“困擾證據”向陪審團作出指引;及" } }, { "doc_id": 80, "seg_id": 38, "translation": { "en": "(4)The trial judge did not give proper or sufficient directions to the jury as to the statement made by the applicant under caution.", "zh-HK": "(四)原審法官沒有就申請人警誡下的說法向陪審團作出恰當或足夠的指引。" } }, { "doc_id": 80, "seg_id": 39, "translation": { "en": "As to the factual issue, Mr Liu contended that X’s evidence against the applicant was not credible, and that there were lurking doubts in the prosecution case.", "zh-HK": "就事實議題，廖‍大律師力稱X指控申請人的證供不合信，故控方案情有潛在疑點。" } }, { "doc_id": 80, "seg_id": 40, "translation": { "en": "Mr Liu pressed the point that after X was raped by the defendant the first time, she not only took a rest together with the defendant, but also smoked a cigarette/cigarettes with him together. When Madam Wong telephoned her, she did not make any complaint and further, she went out with the applicant as usual. When they met Madam Wong, they even went shopping together. In the course of doing these things, she did not display any distressed condition. Mr Liu also submitted that X had strongly objected to her mother’s calling the police. Mr Liu argued that all such behaviour of X was inconsistent with her evidence against the applicant and that therefore his convictions on the two counts were unsafe and unsatisfactory.", "zh-HK": "廖‍大律師強調X指遭申請人第一次強姦後不但和申請人一起休息，更一起吸煙。當黃‍女士致電給她時，X沒有作出任何投訴，更如常和申請人外出，和黃‍女士會合後更一起購物，而期間X亦沒有表現困擾神態。廖‍大律師又強調X曾奮力反對母親去報警。廖‍大律師指X的種種表現都和她指控申請人的證言不符，因此針對申請人的兩項控罪的定罪是不安全及不穩妥的。" } }, { "doc_id": 80, "seg_id": 41, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 80, "seg_id": 42, "translation": { "en": "In a criminal case, a previous consistent statement made by a prosecution witness out of court unfavorable to the defendant is not admissible as evidence against the defendant. However, in a rape case or a case involving indecency, a recent complaint made by the victim to someone after the commission of the offence is an exception, which is admissible as evidence to support the victim’s credibility and to rebut evidence from the defence that the victim consented to sexual intercourse or to intimate acts.", "zh-HK": "在任何刑事案件，控方證人在法庭外曾作出過針對被告人的“過往相符陳述”(Previous Consistent Statement)不能呈堂為證指控被告人。但在強姦或涉及猥褻性質的案件，受害人在事發後向別人作出的“近期投訴”(Recent Complaint)屬例外情況，可以呈堂為證以支持受害人的可信性，亦可作為反駁辯方指受害人同意性交或親暱行為的證供。" } }, { "doc_id": 80, "seg_id": 43, "translation": { "en": "In rape cases and cases involving indecency, in order to be admitted as evidence, the recent complaint against the defendant must be made by the victim at the first reasonable opportunity after the offence. In considering whether to admit the victim’s complaint as evidence, the judge is bound to look at all the circumstances of the case, including the victim’s background and her relationship with the defendant, before deciding whether the complaint was made by X at the first opportunity which reasonably presented itself (see HKSAR v Hung Wai Tak [2000] 4 HKC 641).", "zh-HK": "在強姦及猥褻性質的案件，受害人針對被告人的“近期投訴”若要被採納為證，必須是受害人在案發後首個合理機會出現時作出的。主審法官在考慮應否採納受害人的投訴為證時，必須將案件的有關情況考慮在內，包括受害人的背景、以及她和被告人的關係等因素，來決定投訴是否X在首次合理機會出現時作出(見HKSAR v Hung Wai Tak [2000]4 HKC 641 案)。" } }, { "doc_id": 80, "seg_id": 44, "translation": { "en": "The court cannot overlook the fact that victims might need time before they can bring themselves to tell others what has been done to them and that some victims will find it impossible to complain to anyone other than a parent or members of their family (see R v Valentine [1996] 2 Cr App R 213); therefore, a complaint against the defendant can be admitted although it may not have been made at the first opportunity which arose after the offence.", "zh-HK": "法庭不能忽視受害人可能需要時間決定是否將事件告知他人，而部分受害人除了向父母或家庭成員外，不會向他人投訴(見R v Valentine [1996] 2 Cr App R 213 案)，因此針對被告人的投訴不一定要是受害人在事發後第一時間作出才能呈堂為證。" } }, { "doc_id": 80, "seg_id": 45, "translation": { "en": "The applicant was a friend of X and her family members. He often went to the flat to visit X and was very familiar with them. X clearly said that at first she had no intention to complain to anyone about what the applicant did to her and was prepared to “grin and bear it”, because she feared that if her mother learned of the matter, she might kick her out to the street, and she also worried that her boyfriend /boyfriends might shun her if he/they knew that.", "zh-HK": "申請人是X和其家人的朋友，經常到該居所探望X，亦十分熟悉她的家人，X明確表示她原本沒有打算向任何人投訴申請人對她作出的行為，打算“硬啃”事件，原因是她害怕母親知悉事件後會趕她出街，亦害怕男朋友知悉事件後會不要她。" } }, { "doc_id": 80, "seg_id": 46, "translation": { "en": "X made a clean breast to her mother and told the man surnamed Lau, the man surnamed Cheng and the man whose name was unknown about the matter only after her mother noticed that there was something strange in her mood and behaviour, checked her WhatsApp messages and subjected her to close questioning.", "zh-HK": "X是在母親發覺她的脾氣有異，及在查看她WhatsApp通訊記錄並追問她時，才向母親表白及將事件告訴劉‍姓、鄭姓及一名不知名男子。" } }, { "doc_id": 80, "seg_id": 47, "translation": { "en": "In these circumstances, even though X’s complaints about the applicant’s conduct which she made to her boyfriend Lau, her boyfriend Cheng and the man whose name was unknown were not made immediately after the offence but were only made several days after the offence, her complaints still complied with the requirements concerning recent complaint and were admissible.", "zh-HK": "在上述情況下，雖然X向姓劉和姓鄭男朋友和一名不知名男子投訴申請人的行為並非是在事發後立刻作出，而是在事發後數天才作出，但該些投訴仍符合“近期投訴”的要求，可以呈堂為證。" } }, { "doc_id": 80, "seg_id": 48, "translation": { "en": "In the circumstances of this case, the ruling made by the trial judge that the complaints against the applicant which X made to her boyfriend Lau, her boyfriend Cheng and the man whose name was unknown were made at the first reasonable opportunity which presented itself had a solid basis and was sound. The trial judge had good reason to admit the complaints which X made to those three persons as recent complaints.", "zh-HK": "在本案的情況下，原審法官作出裁決，指X向姓劉和姓鄭男朋友和不知名男子作出針對申請人的投訴是在首次合理機會出現時作出是有根據的，亦是適當的。原審法官有基礎批准X向他們三人作出的投訴以“近期投訴”性質呈堂為證。" } }, { "doc_id": 80, "seg_id": 49, "translation": { "en": "Another argument advanced by Mr Liu is that the evidence of recent complaint must be verified under oath by the recipient of the complaint, and that the complainant’s own evidence that she made the complaint, by itself without more, is not enough. Mr Liu cited R v Kory White [1999] 1 AC 210 to support his argument.", "zh-HK": "廖‍大律師的另一論點是“近期投訴”的證供必須由接收投訴者在宣誓下作出相關的確認，而非單單由投訴者指自己有作出過投訴。廖‍大律師援引R v Kory White [1999] 1 AC 210 案支持他的立場。" } }, { "doc_id": 80, "seg_id": 50, "translation": { "en": "Mr Liu highlighted the fact that at the trial the prosecution did not call X’s boyfriends Lau and Cheng or the man whose name was unknown to give evidence, and that therefore there was no evidence to verify the contents of X’s complaints to show that her complaints were consistent with her evidence. Mr Liu’s position is that X’s complaints were no different from previous consistent statements which she made against the applicant, and could not be admitted as evidence of recent complaint.", "zh-HK": "廖大律師強調原審時控方沒有傳召X姓劉和姓鄭的男朋友和該名不知名男子作供，故沒有證據確認X投訴的內容，以證明她的投訴吻合她的證供。廖‍大律師的立場是X的投訴無異於她曾作出過針對申請人的“過往相符陳述”，不能以“近期投訴”性質呈堂為證。" } }, { "doc_id": 80, "seg_id": 51, "translation": { "en": "Recent complaint is not to be used for proving whether a charge is established. It is mainly used to show that the victim was consistent in her conduct or in what she said, so as to buttress the credibility of her evidence.", "zh-HK": "“近期投訴”的作用並非是要來證明控罪是否成立;它主要是用作顯示受害人的行為或說法一致，以加強她證供的可信性。" } }, { "doc_id": 80, "seg_id": 52, "translation": { "en": "The court should scrutinize the contents of a victim’s complaints in order to decide whether her complaints are consistent with her evidence. Generally, the recipients of the victim’s complaints must give evidence to describe in detail the complaints made to them by the victim, so that the court can determine whether the victim’s complaints are consistent with her evidence.", "zh-HK": "法庭理應審議受害人作出投訴的內容，以決定她的投訴和她的證供是否一致。一般情況下，接收受害人投訴的人必須作供，就受害人向他們作出的投訴詳細表述，以決定受害人的投訴和她的證供是否一致。" } }, { "doc_id": 80, "seg_id": 53, "translation": { "en": "In Kory White, at page 215 G-H, Lord Hoffmann made the following comments:", "zh-HK": "Lord Hoffmann在上述Kory White 案判案書第215 頁G-H有以下評論:" } }, { "doc_id": 80, "seg_id": 54, "translation": { "en": "“There are two well-known common law exceptions to this rule. The first permits proof of complaints in sexual cases. If a complaint is made at the first reasonable opportunity after the offence, it may be proved in evidence to show the complainant’s consistency and to negative consent. But for this purpose it is necessary not only that the complainant should testify to the making of the complaint but also that its terms should be proved by the person to whom it was made. If, as in this case, the recipients of the complaints do not give evidence, the complainant’s own evidence that she made a complaint cannot assist in either proving her consistency or negating consent.”", "zh-HK": "“普通法下，此規則(過往相符陳述不能呈堂為證)有兩個為人熟知的例外情況，其一在性侵犯案件，容許投訴為證據。如投訴人在案發後首個合理機會出現時作出投訴，該投訴能顯示投訴人的一致性及反駁‘同意’。但條件是不但要投訴人作供表示有作出過投訴，其內容亦要由接受投訴的人證實。當如本案情況接受投訴者沒有作供，投訴人指她有作過投訴的證供不能對她的一致性或反駁‘同意’等議題有幫助。”(非官方翻譯)" } }, { "doc_id": 80, "seg_id": 55, "translation": { "en": "There were unusual circumstances in the present case. The complaints which X made to her boyfriends Lau and Cheng and to the man whose name was unknown were not oral complaints, but were sent through WhatsApp. Mr Liu accepted that X did send those messages to them; therefore, X’s complaints were recorded in text form and such text record could assist in proving the consistency of her evidence or rebutting the allegation that she consented to the sexual intercourse.", "zh-HK": "本案情況特殊，X向姓劉和姓鄭男朋友和不知名男子作出的投訴並非以口頭作出，而是透過WhatsApp傳送。廖‍大律師同意X確有向他們發出過該些訊息。因此X的投訴有文字記錄，而該些文字記錄亦和對X證供的一致性或反駁“同意進行性交”等議題有幫助。" } }, { "doc_id": 80, "seg_id": 56, "translation": { "en": "Even if X’s boyfriends Lau and Cheng and the man whose name was unknown had come to court to testify, at most what they would have said was a repetition of the WhatsApp messages which X sent to them. Their evidence would not add anything to bolster the consistency of X’s evidence or to negate any evidence about consent.", "zh-HK": "即使X姓劉和姓鄭的男朋友和該名不知名男子出庭作供，他們最多亦只能覆述X發給他們的WhatsApp內容。他們作供亦不能額外加強和X證供的一致性或反駁和“同意”有關的證據。" } }, { "doc_id": 80, "seg_id": 57, "translation": { "en": "That being so, not calling X’s boyfriends Lau and Cheng and the man whose name was unknown to give evidence had no influence on the relevant issues, nor did it constitute a reason for objecting to the admission of X’s complaints as evidence. We reject this ground of appeal put forward by Mr Liu.", "zh-HK": "在上述情況下，沒有傳召X姓劉和姓鄭的男朋友和不知名男子出庭作供對有關議題沒有任何影響，亦不構成反對採納X的投訴為證據的理由。本庭不接納廖‍大律師提出的這項上訴理由。" } }, { "doc_id": 80, "seg_id": 58, "translation": { "en": "Mr Liu argued that X’s complaints to her two boyfriends and to the man whose name was unknown that she was raped by the applicant were not made on her own initiative nor were they made spontaneously.", "zh-HK": "廖‍大律師力稱X並非主動及自發性向兩名男朋友及不知名男子投訴她遭申請人強姦一事。" } }, { "doc_id": 80, "seg_id": 59, "translation": { "en": "Mr Liu’s argument is that X’s complaints to those persons were only the result of severe scolding and pressure from her mother, that they were not made at the first reasonable opportunity, and that therefore they should not have been admitted in evidence as recent complaints.", "zh-HK": "廖‍大律師的立場是X向他們三人投訴是在被母親強烈責備及施壓下作出的，而並非是在首個合理機會出現時作出，因此不應視為“近期投訴”而獲法庭採納為證。" } }, { "doc_id": 80, "seg_id": 60, "translation": { "en": "This argument is only relevant to how much weight should be given to the evidence, but has no relevance to whether the evidence was admissible.", "zh-HK": "廖‍大律師的說法只是和證據的比重有關，而與證據應否呈堂為證無關。" } }, { "doc_id": 80, "seg_id": 61, "translation": { "en": "Generally speaking, the prosecution cannot adduce evidence or say anything tending to show that the defendant is of bad character. One exception is that in conducting the defence, the defendant casts imputations on the character of the prosecutor or the witnesses for the prosecution (see section 54(1) (f) (ii) of the Criminal Procedure Ordinance).", "zh-HK": "一般而言，控方不能提出證據或說法顯示被告人品格不良，例外之一是進行抗辯時，被告人有貶損檢控人員或控方證人的品格(見《刑事訴訟程序條例》第54(1)(f)(ii)條)。" } }, { "doc_id": 80, "seg_id": 62, "translation": { "en": "Mr Liu submitted in empathetic language that since the applicant was accused of raping X and the issue was whether X consented to have sexual intercourse with him, in cross-examining X it was necessary for the defence to bring out the point that X had made love with the applicant many times before. Mr Liu stressed that to put to X that she had made love with the applicant many times before was not an attack on her character, but was to prove that X voluntarily had sexual intercourse with the applicant.", "zh-HK": "廖‍大律師力稱申請人被指強姦X而案件爭議點是X是否同意和申請人性交，因此盤問X時，辯方需要帶出X曾多次和申請人性交的說法。廖‍大律師強調向X指出她曾多次和申請人性交，並非攻擊X的品格，而是要證明X自願和申請人性交。" } }, { "doc_id": 80, "seg_id": 63, "translation": { "en": "Mr Liu’s position is that the putting to X that she had on a number of previous occasions made love with the applicant was so closely bound up with the applicant’s defence that it should not have been regarded as an attack on her character and should not have resulted in his bad character being disclosed to the jury. Mr Liu cited Selvey v DPP [1968] 52 Cr App R 443 to support his position.", "zh-HK": "廖‍大律師的立場是提出X曾多次和申請人性交和申請人的答辯理由息息相關，因此不應視為攻擊X的品格而導致申請人的不良品格要向陪審團披露，廖‍大律師援引Selvey v DPP[1968]52 Cr App R 443 案支持其立場。" } }, { "doc_id": 80, "seg_id": 64, "translation": { "en": "We agree that if the applicant had only said that X had made love with him on a number of occasions before in order to establish his defence that at the material time X voluntarily had sexual intercourse with him, then what he said should not have been regarded as an attack on X’s character. However, the allegations which the applicant made against X far exceeded the above limit. In cross-examining X, the defence put to her that despite her tender age, she already had multiple sex partners and frequently had sex with them. They also alleged that before the offence, she had made love with the applicant five times. Besides alleging that she had sex with many men, the defence went further and added that after X had sex with different men, she would take morning-after pills and that she would seek abortion when she found herself pregnant.", "zh-HK": "本庭同意，如申請人只是提出X曾和他有多次性交，以支持事發時X是自願和他性交的說法，申請人的立場不應視為攻擊X的品格。但申請人向X提出的指控遠超出上述範圍。辯方盤問X時，向她指出她年紀輕輕，但已有多名性伴侶，並經常和他們性交，辯方亦指X在事發前曾5 次和申請人性交。除了指X和多名男子性交外，辯方更指X和不同男子性交後會服用“事後丸”，而在懷孕後會進行墮胎手術。" } }, { "doc_id": 80, "seg_id": 65, "translation": { "en": "Although the defence did not say that in so many words, they did suggest to the jury that X was a promiscuous and sexually uninhibited girl who had many sex partners at the same time. The defence intended to convince the jury that X would not mind having sex with the applicant, so as to reinforce his case that he had sexual intercourse with her with her consent. We agree with the submission of Ms Lai, Senior Assistant Director of Public Prosecutions, who acts for the respondent, that the applicant’s allegations against X went beyond the permissible parameter referred to in Selvey. In fact, at the trial Mr Liu agreed that if he had accused X of being sexually promiscuous, it would certainly be an attack on X’s character.", "zh-HK": "辯方沒有明言，但有向陪審團暗示，X是一名濫交及性開放的女仕，同時段有多名性伴侶。辯方是想說服陪審團X不介意和申請人性交，以支持申請人是在X同意下和她性交的說法。本庭同意代表答辯人的高級助理刑事檢控專員黎‍婉‍姬的立場，指申請人對X的指控已超越了Selvey案所指的可容許的範圍。事實上廖‍大律師在原審時亦同意假若他有指控X濫交，則他必然有攻擊X的品格。" } }, { "doc_id": 80, "seg_id": 66, "translation": { "en": "We are of the view that the defence had obviously attacked the character of X, and that the trial judge was also entitled to find that the applicant’s allegation that the policeman lied against him by saying that he had made the confession amounted to a move to blacken the policeman’s character.", "zh-HK": "本庭認為辯方明顯有攻擊X的品格。原審法官亦有權將申請人指警員說謊誣告他，指他有作出過招認，構成抹黑警員的品格。" } }, { "doc_id": 80, "seg_id": 67, "translation": { "en": "All in all, we consider that the trial judge was entitled to exercise his discretion under section 54(1)(f)(ii) of the Criminal Procedure Ordinance to find that the applicant’s conduct of his defence was such as to involve imputations on the character of a witness for the prosecution and allow the prosecution to disclose the applicant’s criminal record to the jury to undermine his credibility. There is no basis for us to disturb the decision made by the trial judge in the exercise of his discretion.", "zh-HK": "整體而言，本庭認為原審法官有權行使酌情權，根據《刑事訴訟程序條例》第54(1)(f)(ii)條裁定申請人進行抗辯時，有貶損控方證人的品格而批准控方向陪審團披露申請人的犯罪記錄，以打擊他的誠信。本庭沒有基礎更改原審法官行使酌情權的決定。" } }, { "doc_id": 80, "seg_id": 68, "translation": { "en": "Mr Liu’s ground of appeal that the trial judge erred in allowing the prosecution to disclose the applicant’s criminal record is not established.", "zh-HK": "廖‍大律師指原審法官錯誤批准控方披露申請人的犯罪記錄的上訴理由不成立。" } }, { "doc_id": 80, "seg_id": 69, "translation": { "en": "As correctly pointed out by Ms Lai, after both the prosecution and the defence closed their cases when the trial judge discussed with counsel of the two sides what directions on law should be given to the jury, he expressly said that he would give the jury directions about evidence of distress in relation to what Madam Wong observed as regards how X behaved within the several days after the offence. His reason was that Madam Wong said in her evidence many times that X behaved strangely after the offence and that the defence had asked Madam Wong questions about X’s behavior. Under cross-examination, Madam Wong said that X’s temper had turned “very bad” and had “hurled angry words” at her and X’s elder brother, and that for this reason she checked X’s WhatsApp messages and this matter was thus brought to light.", "zh-HK": "誠如黎‍專員正確指出，原審法官在雙方舉證完畢後與雙方律師討論向陪審團作出的法律指引時，已明確表示會就黃‍女士觀察到X在案發後數天的行為向陪審團作出“困擾證據”的指引，原因是黃‍女士作供時多次表明X在案發後行為有異。辯方亦有就X的表現向黃女士發問，在盤問下，黃‍女士表示X的脾氣變得“好差”，有“鬧”她和X的哥哥，而她亦因此去查看X的WhatsApp內容，才令事件曝光。" } }, { "doc_id": 80, "seg_id": 70, "translation": { "en": "In these circumstances, the jury would most likely take into consideration how X acted and behaved within the several days after the offence; therefore, the trial judge had every reason and was duty bound to give the jury directions on evidence of distress, in order that they would not use such evidence in a wrong way. At the trial, Mr Liu did not make any objection to the approach taken by the trial judge.", "zh-HK": "在上述情況下，陪審團極有可能將X在案發後數天的行為和表現考慮在內，因此原審法官有理由、亦有責任向陪審團作出有關的“困擾證據”指引，避免他們誤用該些證據。就原審法官的處理方法，廖‍大律師在原審時沒有提出異議。" } }, { "doc_id": 80, "seg_id": 71, "translation": { "en": "Mr Liu repeatedly said in strong terms that X’s conduct after the offence was inconsistent with her claim that she had been raped by the applicant, and that the inconsistencies showed that her evidence was not credible. In deciding whether X consented to the sexual intercourse, the jury certainly would take into account X’s conduct after the offence. The jury had heard all the evidence and had listened to submissions from both sides. They surely were well aware of the areas in her evidence which, according to the defence, defied rational explanation.", "zh-HK": "廖‍大律師重覆強調X在案發後的表現和她聲稱被申請人強姦一事不符，顯示她的證供不可信。陪審團在考慮X是否同意性交時，必然會將X在案發後的表現考慮在內，陪審團有聆聽過全部證供及雙方律師的陳述，他們對辯方指X證供不合理之處亦必會瞭如指掌。" } }, { "doc_id": 80, "seg_id": 72, "translation": { "en": "In considering the probative value of evidence of distress, the jury must examine: (1) whether the distressed condition of the victim was genuine, and (2) whether there was a causal connection between the distressed condition and the alleged sexual offence (see HKSAR v Leung Chi Keung [2004] 7 HKCFAR 526). The Court of Final Appeal held that when the judge gave directions to the jury on evidence of distress, he should ask them to consider the following:", "zh-HK": "在考慮“困擾證據”的舉證價值時，陪審團要考慮的因素是(一)受害人的困擾情況是否真確;及(二)受害人的困擾情況和聲稱的性罪行是否有因果關係(見HKSAR v Leung Chi Keung[2004]7 HKCFAR 526案)。終審法院裁定法官就“困擾證據”指引陪審團時，應要求他們考慮以下因素:" } }, { "doc_id": 80, "seg_id": 73, "translation": { "en": "The jury must be satisfied beyond reasonable doubt:", "zh-HK": "(a)陪審團必須在毫無合理疑點下信納:" } }, { "doc_id": 80, "seg_id": 74, "translation": { "en": "(1) that the complainant’s distressed condition was genuine, and", "zh-HK": "(一)申訴人感到的困擾情況屬實;及" } }, { "doc_id": 80, "seg_id": 75, "translation": { "en": "(2) that there was a casual connection between the distressed condition and the sexual offence. In other words, they must be satisfied that: (i) the distressed condition was not feigned or made up; and (ii) was only referable to the alleged sexual offence and not to any other cause. In deciding on those matters, the jury must take into account all relevant circumstances.", "zh-HK": "(二)該情況與涉案性罪行有著因果關係。換句話說，他們必須信納: (一)困擾的狀況不是假裝或虛構出來;及(二)該狀況只能歸因於被指控的性罪行而非任何其他原因。陪審團就這些問題作決定時，必須考慮所有有關情況。" } }, { "doc_id": 80, "seg_id": 76, "translation": { "en": "Where the jury is so satisfied, they could give such weight to the evidence of distress as is appropriate. Weight is entirely a matter for them.", "zh-HK": "(b)假如陪審團如此信納，他們可向困擾證據給予適當的份量。給予多少份量，全由陪審團決定。" } }, { "doc_id": 80, "seg_id": 77, "translation": { "en": "Where the jury is not so satisfied, they should disregard the evidence of distress.", "zh-HK": "(c)假若陪審團未能如此信納，他們不應理會困擾證據。" } }, { "doc_id": 80, "seg_id": 78, "translation": { "en": "Where fantasy has been properly raised as an issue, the jury must not use evidence of distress to rebut a ground of defence based on fantasy. If they believe that fantasy is a possibility, they cannot be satisfied of the required causal connection.", "zh-HK": "(d)假如被告人妥為提出“幻想”作為爭議點，陪審團絕不能運用困擾證據來駁斥以“幻想”為基礎的抗辯理由，若然他們相信事件確可能由申訴人憑空想象出來，他們便不能信納存在著所需的因果關係。" } }, { "doc_id": 80, "seg_id": 79, "translation": { "en": "The directions given by the trial judge to the jury about evidence of distress met the requirements laid down in Leung Chi Keung. We approve the directions.", "zh-HK": "原審法官就“困擾證據”向陪審團作出的指引符合Leung Chi Keung 案定下的要求，本庭予以認同。" } }, { "doc_id": 80, "seg_id": 80, "translation": { "en": "The prosecution evidence was that the applicant said under caution, “I did do that, but we proceeded in a state of half willing and half resisting. I know I was wrong.” Since the applicant denied having said that, there was no other evidence which could help the jury to understand this statement. They could only manage to understand the meaning of this statement on the basis of the arguments advanced by the applicant, the whole circumstances of the case and the applicant’s evidence. Had the applicant been telling the truth in his evidence, ie from the beginning to the end, X consented to the sexual intercourse and acted in concert with him, then the situation which he described, namely “we proceeded in a state of half willing and half resisting” would not have existed.", "zh-HK": "根據控方證據，在警誡下，申請人說:「我係有做過，但係我哋係半推半就嘅情況下攪嘅，我都知我唔啱喇。」由於申請人否認有說過上述說話，因此沒有其他證據協助陪審團理解上述說話，而陪審團只能根據申請人的說法、案件的整體背景和申請人的證供來理解申請人的說話。假若申請人的證供屬實，X由始至終同意並配合和申請人性交，則不會有申請人所指的“我哋係半推半就嘅情況下攪嘅”。" } }, { "doc_id": 80, "seg_id": 81, "translation": { "en": "The statement made by the applicant under caution was clearly a confession. As to whether there was anything in his statement which was exculpatory, different people may have different views. Based on the above analysis, it is not quite convincing to say that the phrase “half willing and half resisting” uttered by the applicant was exculpatory.", "zh-HK": "申請人在警誡下的說話，明顯構成招認。申請人的說話能否構成開脫罪責則屬見人見智。根據上述的分析，申請人所指的“半推半就”具開脫罪責的說服力不大。" } }, { "doc_id": 80, "seg_id": 82, "translation": { "en": "In giving the directions to the jury, the trial judge told them clearly that first they should decide whether the applicant did in fact make the statement and that if he did, then they should decide whether what he said was true. The trial judge reminded them that if they accepted that the applicant did say “half willing and half resisting”, they should consider whether the conduct of X would cause him to genuinely believe that she consented to the sexual intercourse. The trial judge also directed the jury that they should consider the meaning of the whole statement made by the applicant under caution before they could decide whether the charges against him were established.", "zh-HK": "在引導陪審團時，原審法官有向他們表明他們先要決定申請人是否有說過有關說話，及如有的話，該說話的內容是否真確。原審法官有提醒陪審團假若他們接納申請人有說過“半推半就”等說話，X的行為是否會令申請人真誠相信她同意性交。原審法官亦要陪審團考慮申請人在警誡下說出的整句說話的意思，以決定針對申請人的控罪是否成立。" } }, { "doc_id": 80, "seg_id": 83, "translation": { "en": "We consider that in respect of what the applicant said under caution, the directions given by the trial judge to the jury were adequate and fair.", "zh-HK": "本庭認為就申請人在警誡下所說的話，原審法官給予陪審團的指引是足夠及公平的。" } }, { "doc_id": 80, "seg_id": 84, "translation": { "en": "Mr Liu repeatedly made lengthy submissions about areas in X’s evidence which he said were highly incredible, and on that basis argued that there were lurking doubts in this case.", "zh-HK": "廖‍大律師多次及大篇幅地指X的證供在多方面有極不合信的地方，以此來支持他指案件有潛在疑點的立場。" } }, { "doc_id": 80, "seg_id": 85, "translation": { "en": "We must point out that whether X’s evidence was credible was entirely a question of fact and should be determined by the jury. Whether X’s evidence was unreasonable, whether it was defective and how much weight should be given to it were all matters to be considered and decided by the jury.", "zh-HK": "本庭應指出X的證供是否合信，全屬事實問題，理應由陪審團決定。X證供是否不合理、是否有缺點、以及應給予她的證供多少比重屬陪審團要考慮和決定的事項。" } }, { "doc_id": 80, "seg_id": 86, "translation": { "en": "At the trial, X gave evidence in great detail concerning her accusations against the applicant and had been subjected to thorough and minute cross-examination by the defence. The jury must be taken to have knowledge of the defects and illogicalities in X’s evidence as pointed out by the defence. If they had any doubt as to X’s accusations, they would have followed the trial judge’s direction and found the applicant not guilty. Had they thought that the applicant’s story was true or might be true, they would also have found the charges not proven.", "zh-HK": "原審時，X有就她對申請人的指控詳細作供，亦有接受辯方詳細及精確的盤問。陪審團必然知悉辯方所指X證供的缺點和不合理之處。假若他們對X的指控有懷疑，根據原審法官的指引他們會裁定申請人無罪。假若陪審團認為申請人的說法是真的或可能是真的，他們亦會裁定有關控罪不成立。" } }, { "doc_id": 80, "seg_id": 87, "translation": { "en": "A defendant who asks an appellate court to overturn a finding of fact made by the jury on the ground that there is some lurking doubt must convince the court that there is a substantial remaining doubt, thereby making the court uneasy about the conviction of the defendant.", "zh-HK": "被告人要以潛在疑點要求上訴法庭推翻陪審團的事實裁決，必須說服上訴法庭案件有重大餘下的疑點，令上訴法庭對被告人遭定罪一事感到不安。" } }, { "doc_id": 80, "seg_id": 88, "translation": { "en": "In Tang Wai Tong & Another v R [1979] HKLR 479 Roberts CJ commented at pages 486-487:", "zh-HK": "前首席法官羅‍弼‍時在Tang Wai Tong & Another v R [1979]HKLR 479 案判案書第486-487 頁有以下評論:" } }, { "doc_id": 80, "seg_id": 89, "translation": { "en": "“We think that the lurking doubt formula must be applied with great caution. An appellate court, reading the papers are [sic] not seeing witnesses in the way that a jury does, must be cautious in imposing its subjective feelings for the conclusions reached by men and women who have had the advantage of seeing the witnesses and assessing their credibility.", "zh-HK": "“本庭認為潛在疑點的原則必須特別謹慎施行。上訴法庭只能靠閱讀文件行事，而欠缺陪審團能目睹證人作供的優勢，因此必須謹慎，不容許其主觀感覺取代一些有優勢目睹證人作供及評定他們可信性的男女所得出的結論。" } }, { "doc_id": 80, "seg_id": 90, "translation": { "en": "In our view ‘lurking doubt’ means not an insubstantial doubt but a substantial remaining doubt.”", "zh-HK": "本庭亦認為，‘潛在疑點’並非指不大的疑點，而是指重大餘下的疑點。”(非官方翻譯)。" } }, { "doc_id": 80, "seg_id": 91, "translation": { "en": "After thoroughly considering all the evidence in this case and having carefully examined and analyzed Mr Liu’s arguments, we hold that the jury was entitled to accept X’s evidence and rely on her evidence to find the applicant guilty of the two rape charges. We do not find the decisions to convict the applicant unsafe in any way. Accordingly, we refuse the application for leave to appeal against conviction.", "zh-HK": "本庭已詳細考慮過案件的全部證供，亦有小心考慮和分析廖‍大律師的論點。本庭認為陪審團有權接納X的證供，並根據她的證供來裁定申請人被控的兩項強姦罪罪名成立。對申請人被定罪的決定，本庭不覺有任何不穩妥之處，因此本庭不批准申請人就定罪提出的上訴許可申請。" } }, { "doc_id": 80, "seg_id": 92, "translation": { "en": "Sentence", "zh-HK": "判刑" } }, { "doc_id": 80, "seg_id": 93, "translation": { "en": "Rape is of course a very serious offence, which attracts a term of imprisonment of not less than 5 years, and if it is accompanied by aggravating factors, the sentence will be enhanced.", "zh-HK": "強姦當然是十分嚴重罪行，會導致不少於5 年的監禁刑罰，假若有加重罪責因素，判刑更會提高。" } }, { "doc_id": 80, "seg_id": 94, "translation": { "en": "In sentencing the applicant, the trial judge placed emphasis on the following factors: X had been subjected to violence; the applicant made use of the trust which X and her family reposed in him to commit the offence; the applicant raped X two times within a short period of time without using a condom, and during the second time he even ejaculated inside her body.", "zh-HK": "原審法官判刑時強調X曾受暴力對待;申請人是利用X一家對他的信任而犯案;申請人更是在沒有使用避孕套的情況下，短時間內兩次強姦X，而第二次強姦X時，更在她的體內射精。" } }, { "doc_id": 80, "seg_id": 95, "translation": { "en": "Any case of rape will involve a certain degree of violence. The facts of the present case did not show that the violence which the applicant did to X was over and above the violence used in usual cases. Except this point, the aggravating factors identified by the trial judge did exist in this case.", "zh-HK": "任何強姦罪行都會涉及某程度的暴力行為，本案案情不顯示申請人強姦X時採用的暴力超乎一般情況下所使用的暴力。除這點外，原審法官指出的加重罪責因素在案中確實存在。" } }, { "doc_id": 80, "seg_id": 96, "translation": { "en": "Mr Liu criticized the trial judge for not calling for a victim’s impact report about X before sentencing. The trial judge did not impose a more severe sentence on the applicant on the ground that the incident left any especially serious physical or mental effect on X, therefore his not calling for a victim’s impact report did not result in any prejudice against the applicant.", "zh-HK": "廖‍大律師投訴原審法官在判刑前，沒有先索取X的受害人衝擊評核報告。原審法官並沒有以事件對X造成特別的生理或心理遺害而加重申請人的判刑，因此原審法官沒有索取受害人衝擊評核報告並無對申請人造成不利。" } }, { "doc_id": 80, "seg_id": 97, "translation": { "en": "The applicant knew X and her family members well. Because of this, he was allowed to go to X’s home to visit her freely, and he took advantage of this opportunity to rape X at her home. To a certain extent there was breach of trust, but it was not a case in which the applicant made use of his capacity as a senior family member or the guardian of the victim, or the capacity of someone who was entrusted with a certain responsibility, for example, a clergyman, an emergency services provider, a taxi driver or a police officer, to sexually attack X. As far as this case is concerned, when compared with cases of a similar nature, the applicant’s breach of trust did not constitute a particular aggravating factor.", "zh-HK": "申請人熟識X和她的家人，並因此獲准隨意到X的家中探訪她。申請人利用機會在該居所強姦X，某程度上屬破壞信任，但申請人並非利用受害人的長輩或監護人身份或其他受託人身份，例如神職人員、緊急服務救護員、計程車司機或警察等身份去性侵犯X。以同類案件而言，申請人破壞信任一事，不構成特殊的加重罪責因素。" } }, { "doc_id": 80, "seg_id": 98, "translation": { "en": "Ms Lai submitted that the applicant raped X two times, that his conduct corresponded to one of the features described in R v Millbery and others [2003] 1 WLR 546, namely repeated rape in the course of one attack, which justified a term of imprisonment of not less than 8 years. We have some reservations about her view.", "zh-HK": "黎‍專員力稱申請人兩次強姦X，屬R v Millbery and others [2003]1 WLR 546 案所指的在同一襲擊過程中多次強姦受害人，理應導致不少於8 年的監禁刑期。本庭對黎‍專員的立場有所保留。" } }, { "doc_id": 80, "seg_id": 99, "translation": { "en": "The applicant did not abduct X and hold her captive for a long period of time, nor did he, either alone or with others, raped X multiple times. He did not commit any of the acts of rape identified in Millbery as examples or carry out anal intercourse by force. The applicant raped X twice within a short time in circumstances where she did not put up any vigorous resistance. We do not agree that in the circumstances of this case the applicant’s conduct amounted to repeated rape in the course of one attack as described in Millbery and called for the imposition on him of a term of imprisonment no less than 8 years’.", "zh-HK": "申請人沒有長時間拘禁X，亦沒有在期間親自或和其他人多次強姦X。申請人更沒有犯了如Millbery 案中列出的例子所指的強姦行為或強行肛交。申請人在短時間內在X沒有強烈反抗的情況下兩次強姦她，本庭不同意以本案的情況下，申請人的行為構成Millbery 案所指的，在同一襲擊過程中多次強姦受害人，因而要對他施以不少於8 年的監禁刑期。" } }, { "doc_id": 80, "seg_id": 100, "translation": { "en": "In our judgment, this case is not a particularly serious one among similar cases.", "zh-HK": "本庭認為在同類案件中，本案並非屬特別嚴重的一宗。" } }, { "doc_id": 80, "seg_id": 101, "translation": { "en": "We do not overlook the fact that at the time of the offence, the applicant was under 20 years old. Although he had previous convictions, they were minor offences and he had a stable job.", "zh-HK": "本庭不能忽視犯案時，申請人不足20 歲。雖然申請人有犯案前科，但屬輕微罪行，而他亦有穩定職業。" } }, { "doc_id": 80, "seg_id": 102, "translation": { "en": "The applicant had known X for over a year and all along they were in good terms and met frequently. It is highly likely that he succumbed to the impulse at that juncture and committed this serious crime.", "zh-HK": "申請人認識了X超過一年，期間兩人關係融洽，亦經常會面，申請人極可能是一時不能控制情緒而干犯了涉案的嚴重罪行。" } }, { "doc_id": 80, "seg_id": 103, "translation": { "en": "We hold that judging from all the aggravating factors featured in this case, the overall sentence of 7½ years which the applicant received was manifestly excessive, and that a more appropriate overall sentence should be 6½ years.", "zh-HK": "本庭認為以案件顯示的全部加重罪責因素，申請人被判的7 年半總刑期屬明顯過重，而較合適的總刑期應為6 年半。" } }, { "doc_id": 80, "seg_id": 104, "translation": { "en": "For the above reasons, we grant the application for leave to appeal against sentence and, treating this hearing as the appeal proper, allow the appeal.", "zh-HK": "因此本庭批准申請人就判刑提出的上訴許可申請，並視其申請為正式上訴，本庭裁定申請人的上訴得直。" } }, { "doc_id": 80, "seg_id": 105, "translation": { "en": "We uphold the 6 years’ imprisonment for the first count, but reduce the 7 years’ imprisonment for the second count to the same 6 years, and order that 6 months out of the terms for the two counts shall be served consecutively.", "zh-HK": "本庭維持第一項控罪的6 年刑期，但將第二項控罪的7 年刑期改為同是6 年刑期。本庭下令兩項控罪的刑期中的6 個月要分期執行。" } }, { "doc_id": 80, "seg_id": 106, "translation": { "en": "The overall sentence to be served by the applicant is reduced from 7½ years to 6½ years.", "zh-HK": "申請人須服的總刑期由7 年半減至6 年半。" } }, { "doc_id": 80, "seg_id": 107, "translation": { "en": "Ms Anna Lai, Senior Assistant Director of Public Prosecutions, of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員黎婉姬代表。" } }, { "doc_id": 80, "seg_id": 108, "translation": { "en": "Mr Liu Yuen Ming and Mr Poon Siu Bunn, assigned by the Bar Free Legal Services Scheme of the Hong Kong Bar Association, for the Applicant.", "zh-HK": "申請人：由香港大律師公會法律義助服務計劃委派大律師廖‍遠‍明及大律師潘兆斌代表。" } }, { "doc_id": 81, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the Reasons for Judgment of the Court):", "zh-HK": "高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 81, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 81, "seg_id": 3, "translation": { "en": "The applicant (Lee Chi Shing) was charged with unlawfully trafficking in 0.24 kilogrammes of a powder containing 0.21 kilogrammes of ketamine. He pleaded not guilty and was tried before Tong J (the trial judge) and a jury.", "zh-HK": "申請人（李志成）被控非法販運含0.21公斤氯胺酮的0.24公斤粉末。他否認控罪並在高等法院原訟法庭法官湯寶臣（原審法官）會同陪審團席前受審。" } }, { "doc_id": 81, "seg_id": 4, "translation": { "en": "On 17 May 2012 the applicant was convicted as charged and was sentenced on the same day to imprisonment for 7½ years.", "zh-HK": "2012年5月17日，申請人被裁定罪名成立並在同日被判入獄7年半。" } }, { "doc_id": 81, "seg_id": 5, "translation": { "en": "Represented by Mr. Alex Ng of Counsel, the applicant applied for leave to appeal the conviction. We dismissed the application after hearing, for reasons which we now give.", "zh-HK": "申請人不服定罪，由吳政煌大律師代表提出申請，要求獲淮就定罪上訴。經聆訊後，本庭駁回申請。以下是本庭的判案理由。" } }, { "doc_id": 81, "seg_id": 6, "translation": { "en": "The prosecution case and evidence", "zh-HK": "控方案情及證據" } }, { "doc_id": 81, "seg_id": 7, "translation": { "en": "Around 9.30 pm on 4 July 2011, police officers of the Hong Kong Police Narcotics Bureau (PC33410 and PC8195 among them) were carrying out their duties at Exit D of Tsuen Wan West MTR station. The applicant was then a passenger on board a stationary white vehicle of which his elder brother was the driver. The police officers asked the applicant to get off the vehicle for inspection. He alighted from the vehicle, and then PC33410 took him three to four steps forward to somewhere near the front of the vehicle where PC33410 then conducted a search on him. PC33410 found from the left rear pocket of the applicant’s pants a bag of powder weighing 0.24 kilogrammes and containing 0.21 kilogrammes of ketamine (i.e. the drug involved).", "zh-HK": "2011年7月4日晚上約9時30分，警方毒品調查科警員（包括警員33410和警員8195）在荃灣港鐵西站D出口執行任務，當時申請人是一輛停定的白色車輛上的乘客，司機是他的哥哥。警員要求申請人下車接受檢查。申請人下車後，警員33410帶他前行三、四步近車頭位置並搜查他。警員33410在申請人的左後褲袋搜出一包共重0.24公斤的粉末，內含0.21公斤的氯胺酮（即涉案毒品）。" } }, { "doc_id": 81, "seg_id": 8, "translation": { "en": "PC8195 conducted a search on the applicant’s elder brother but did not find any contraband, and in the end the applicant’s elder brother was not prosecuted.", "zh-HK": "警員8195負責搜查申請人的哥哥，但沒有發現任何違禁品，而申請人的哥哥最終亦沒有遭檢控。" } }, { "doc_id": 81, "seg_id": 9, "translation": { "en": "PC33410 denied the defence’s allegation that he had indicated to the applicant that the drug involved was found inside the vehicle. He also denied the allegation that the drug was not found on the applicant himself. PC33410 said that at the material time the applicant was wearing casual pants instead of beach shorts and short pants with no left rear pocket.", "zh-HK": "警員33410否認辯方指他曾向申請人表示涉案毒品是在車上找到，亦否認涉案毒品並非是在申請人身上搜出。警員33410指出案發時申請人穿着的是便服褲，而不是沙灘褲及無左後袋的短褲。" } }, { "doc_id": 81, "seg_id": 10, "translation": { "en": "Towards the end of the examination-in-chief, the prosecutor asked PC33410 whether he and his teammates had had any grudges against the applicant, and PC33410 answered, “I don’t know him” and “as far as I know, nobody knows him”. At that point, the defence counsel raised an objection to the said testimony of PC33410, asserting that what he said was hearsay evidence. The trial judge said he would deal with this matter later, although eventually he did not do so.", "zh-HK": "警員33410在主問尾聲時被主控官問及他和其隊友與申請人是否有過節時，他回應說：“我唔識佢”，“據我所知都無人識佢”。當時辯方律師反對警員33410的上述證供，指該說法屬傳聞證供。原審法官表示會遲些處理問題，但最終沒有做到。" } }, { "doc_id": 81, "seg_id": 11, "translation": { "en": "PC8195 conducted a search on the applicant’s elder brother but failed to find any contraband. PC8195 said that he had not personally seen the drug involved, but as he understood it, only one bag of drug was found in the operation.", "zh-HK": "警員8195負責搜查申請人的哥哥，但沒有搜出違禁品。警員8195表示他沒有親眼見過涉案的毒品，但他理解在行動中只搜出一包毒品。" } }, { "doc_id": 81, "seg_id": 12, "translation": { "en": "It was common ground that the drug seized in the operation was 0.21 kilogrammes of ketamine contained in a powder weighing 0.24 kilogrammes and that the drug had a retail price of HK$25,440. The relevant report prepared by a Government Chemist was produced to the court on the basis of the admitted facts. Apart from laboratory test results relating to the bag of drug involved in the present case, the said report also contained test results of nine other bags of ketamine. It was also common ground that no fingerprints of forensic value were found on the bag of drug involved and that the applicant did not have any criminal record in Hong Kong.", "zh-HK": "雙方同意警員33410在行動中檢獲的毒品是內含0.21公斤氯胺酮的0.24公斤粉末，零售價為25,440港元。有關的政府化驗師報告是根據同意案情向法庭呈示。該報告除了和本案的一包毒品有關外，亦包括另外9包氯胺酮毒品的化驗結果。雙方亦同意涉案毒品上並沒有任何具鑑證價值的指紋，而申請人在本港並無任何刑事犯案記錄。" } }, { "doc_id": 81, "seg_id": 13, "translation": { "en": "Apart from the evidence pertaining to the arrest of the applicant and the seizure of the drug involved, the prosecution also alleged that the applicant had made an admission. After a voir dire hearing and having considered the evidence of the relevant police officers and of the applicant, the trial judge refused to admit the said admission as evidence.", "zh-HK": "除了拘捕申請人及檢獲涉案毒品的證據外，控方亦指申請人曾作出過招認。經案中案的聆訊及考慮過有關警員及申請人的證供後，原審法官不接納有關招認為證據。" } }, { "doc_id": 81, "seg_id": 14, "translation": { "en": "Having ruled that the applicant’s admission could not be adduced as evidence and before the prosecution opened its case, the trial judge expressed concerns over the consequences of placing the applicant’s admission before the jury. This led to the following conversation between the trial judge and counsel for both parties:", "zh-HK": "在裁定申請人的招認供詞不能呈堂為證及在控方開案前，原審法官關注到如申請人的招認在陪審團前展示會做成的後果，並因此和雙方律師有以下的對話：" } }, { "doc_id": 81, "seg_id": 15, "translation": { "en": "“Judge:Regarding the hearing tomorrow, there are a few points to which I would like to draw your attention. First, following the ruling [made on the voir dire], the focus is now on the circumstances in which the drug was found, which means both the prosecution and the defence should no longer make any reference to what was said under caution. That is the first point. Second, I would like to mention here that, sometimes, in the middle of the trial, the defence would – without what was going on in its mind being known – suddenly turn round and want to refer again to what happened during the interview. But as the court has already given a ruling at the request of the defence, the relevant evidence is – that is to say, the court has already made a ruling in this respect, so if you go back and say that a certain point has to be raised again at some stage, the defence will have to give this some thought: it’s not just one or two points that you want to raise, and the defence may suggest – the prosecution will say that, this being the case, the context should also be made known to the jury. I am just briefly mentioning this, I am not saying that the defence [in the present case] has this intention.", "zh-HK": "“官：有關於聽日嘅審訊，有幾點我想係提醒一下嘅。就第一，經過咗個裁決之後，而家嗰個集中點係在於搵到毒品嘅情況，咁就變咗控辯雙方應該係唔再提話嘅警誡下嘅說話呢一方面，呢個第一；第二就係話，我想喺呢度提，即係有時辯方又會喺審訊嗰時，唔知係--嘅諗法係點，就突然之間又掉番轉，又想提番會面時嘅一啲嘅事情，但係因為辯方已經要求法庭係作出一個裁決，咁嗰啲有關嘅證據就係--即係法庭已經就呢方面作咗裁決，咁如果你又掉番轉頭，又話要再某一個環節要提出呢，咁辯方就要諗下，就變咗唔係凈係一、兩點你哋想提嘅事情，咁可能辯方或者有個講法--控方會有個講法就話，既然係咁，咁可能嗰個上文下理都應該畀陪審員知道，咁呢個我提一提啫，我唔係話辯方有咁樣嘅打算。" } }, { "doc_id": 81, "seg_id": 16, "translation": { "en": "There is one matter of which the defence had made passing mention when dealing with the issue of arrest and which I am now bringing up for the sake of the progress of the trial. If there is an issue over the pants/shorts – of course I am not saying the defence has to tell me now what their defence is, but if there is an issue over the pants/shorts – I believe that the pants/shorts have already gone to … been returned to the defendant, and so the prosecution does not have them. But if you are saying there are certain so-called issues over the pants/shorts which have to be dealt with, please do not bring them up only at that stage by saying that I want to raise them and seeking to adjourn the case for half a day or one day to obtain the exhibit and so forth. This is what I want to point out.", "zh-HK": "有一點，就係話呢件案辯方喺提到拘捕嗰時就略略提過，咁我呢度就想為咗法庭嗰個審訊嘅進程就提出，如果係有嗰條褲嘅問題嘅話，咁當然我唔係話辯方要而家話畀我聽你嘅辯護係乜嘢，但係如果係有嗰條褲嘅問題，因為我相信條褲已經去咗--返番去被告嗰度㗎喇，咁所以就控方就係冇㗎喇。但係如果你話嗰條褲係有啲所謂議題係要處理嘅，就請唔好到時先至話我而家想提出呢啲，又話押後半日、一日去攞咩嘢證物嗰啲咁嘅嘢喇，咁呢個我想提一提。" } }, { "doc_id": 81, "seg_id": 17, "translation": { "en": "On the other hand, as I see it, there is one possible scenario in the present case, that is, the prosecution might have made certain arrest on the basis of certain information which it had. But in this respect you have to see what decision the defence makes for itself. If you want to conduct cross-examinations in this respect, please be cautious, because I do not want to find, in the middle of the examination but not earlier, that you are telling me there is some information which is embarrassing to or biased against the defence and which will then have to be dealt with. If the defence decides there are questions to be asked in this respect, perhaps please notify the court so that the issue can first be discussed in the absence of the jury before it is dealt with.", "zh-HK": "另一方面，就係呢件案嗰度睇得到可能係一個情況就係，控方或者係有一啲嘅資料而作出一啲嘅拘捕行動，但係呢方面你要睇辯方自己嘅決定喇，如果你要喺呢方面去作盤問嘅話，就請小心，因為我唔想去到一半先發覺你話係有啲資料係對辯方係有尷尬或者係有偏見嘅，咁嗰陣時先至處理。如果喺呢方面，辯方嘅決定有嘢問嘅話，就或者請通知法庭喺陪審員不在場嘅時間，我哋討論咗，然後先至去處理。" } }, { "doc_id": 81, "seg_id": 18, "translation": { "en": "These are the points I want to raise. Are there other matters we should discuss before the trial?", "zh-HK": "咁我想提出嘅係呢幾樣，有冇其他事情我哋應該喺審訊前討論嘅？" } }, { "doc_id": 81, "seg_id": 19, "translation": { "en": "Mr. Kwan:On the second point that your Lordship has just mentioned, I may have to consider it thoroughly and seek instructions – that is the point about the defence wishing to revisit certain issues dealt with in the voir dire.", "zh-HK": "關先生：我諗係法官閣下剛才提出，第二點嗰度可能我要詳細諗清楚同埋攞啲指示嘅，就係話有時有啲辯方想返番轉頭，就講番類似案中案嗰啲少少嘅議題..." } }, { "doc_id": 81, "seg_id": 20, "translation": { "en": "Judge:Mr Kwan?", "zh-HK": "官：Mr Kwan？" } }, { "doc_id": 81, "seg_id": 21, "translation": { "en": "Mr. Kwan:Yes, yes.", "zh-HK": "關先生：係，係。" } }, { "doc_id": 81, "seg_id": 22, "translation": { "en": "Judge:I am not counsel representing him …", "zh-HK": "官：我唔係佢嘅代表律師嚟嘅，..." } }, { "doc_id": 81, "seg_id": 23, "translation": { "en": "Mr. Kwan:Mm.", "zh-HK": "關先生：唔。" } }, { "doc_id": 81, "seg_id": 24, "translation": { "en": "Judge:My point is to tell you that other people had done it before.", "zh-HK": "官：...我想講嘅係話畀你聽，以前有人咁樣做。" } }, { "doc_id": 81, "seg_id": 25, "translation": { "en": "Mr. Kwan:Yes, I understand.", "zh-HK": "關先生：係，我明白。" } }, { "doc_id": 81, "seg_id": 26, "translation": { "en": "Judge:Actually, this approach is essentially improper. If you think there are certain matters in the voir dire which should in fact be brought to the attention of the jury, then we should not have conducted the voir dire and should instead have gone through the whole matter before the jury and you could have pointed out what you thought was advantageous to him. But now that you have chosen the other approach, I think that those matters should, basically speaking and in principle, be irrelevant. But if, having been reminded, it now occurs to you that “Ah, that’s right” – so, that is not what I intended, that is what I am worried may happen, but this is something you have to consider for yourself.", "zh-HK": "官：咁樣做其實基本嚟講就唔恰當，如果你認為其實喺呢個案中案之中係有啲事情其實應該畀埋陪審員知嘅，如果咁，我哋就唔應該打案中案，應該成件一齊喺陪審員面前做一次，然後你認為對佢有利嘅，你就指出嚟。但係你已經選擇咗呢個方法，我覺得基本上、原則上，嗰啲就應該係無關。但係如果你而家經提點突然之間諗到「呀，係喎。」咁呢，我嘅本意唔係咁，我係驚或者會咁，但係呢個你自己去考慮。" } }, { "doc_id": 81, "seg_id": 27, "translation": { "en": "Mr. Kwan:Yes, your Lordship.", "zh-HK": "關先生：係，法官閣下。" } }, { "doc_id": 81, "seg_id": 28, "translation": { "en": "Judge:But I do not want to have to consider these digressive matters at that stage but not before.", "zh-HK": "官：但係我唔希望再有呢啲咁嘅枝枝節節嘅嘢係到時先至諗。" } }, { "doc_id": 81, "seg_id": 29, "translation": { "en": "Mr. Kwan:Understand, understand.", "zh-HK": "關先生：明白，明白。" } }, { "doc_id": 81, "seg_id": 30, "translation": { "en": "Judge:Yes.", "zh-HK": "官：係。" } }, { "doc_id": 81, "seg_id": 31, "translation": { "en": "Mr. Kwan:Yes, yes, this …", "zh-HK": "關先生：係，係，呢..." } }, { "doc_id": 81, "seg_id": 32, "translation": { "en": "Judge:Actually these matters should have been considered long ago.", "zh-HK": "官：其實呢啲應該一早已經係諗晒。" } }, { "doc_id": 81, "seg_id": 33, "translation": { "en": "Mr. Kwan:Yes, yes, I thought about this point before your Lordship made the ruling, so I – now that I have the benefit of a reminder by your Lordship, I have a better idea about this.", "zh-HK": "關先生：係，係，我係喺法官閣下裁決之前我就曾經諗過呢一點，咁我就--而家法官閣下提點咗，咁我更加就清楚喇，有關呢點嘅。" } }, { "doc_id": 81, "seg_id": 34, "translation": { "en": "Judge:Mm.", "zh-HK": "官：唔。" } }, { "doc_id": 81, "seg_id": 35, "translation": { "en": "Mr. Kwan:Yes, I will clearly explain this point to the defendant, right.", "zh-HK": "關先生：係，我會清楚咁解釋畀被告人聽嘅，關於呢方面，係。" } }, { "doc_id": 81, "seg_id": 36, "translation": { "en": "Judge:Mm. Of course, if you have – some submissions to make, saying there are certain aspects which the court should consider, then I of course will listen to you – to hear what you have to say, and in that case perhaps a relatively simple introduction can be made at the opening of the case, and if a complex legal issue does exist, then we will deal with it. This will be better than having ourselves completely tied up right at the opening of the case and will, I think, be more conducive to the progress of the trial.", "zh-HK": "官：唔。咁當然喇，如果你有--有啲陳詞，你話有啲角度法庭應該去考慮嘅，咁我當然會聽下你--你所講嘅係咩嘢事情，咁或者嗰個開案如果用一個比較簡單嘅嗰個介紹，然後如果真係有啲咩嘢複雜法律問題然後我哋先解決，就好過一早係喺嗰個開案度已經綁死晒，咁我諗會對個案件嘅審訊嘅進度會有一個較有利嘅安排。" } }, { "doc_id": 81, "seg_id": 37, "translation": { "en": "Mr. Kwan:Yes, your Lordship. In light of your Lordship’s ruling, I think some amendments may have to be made to the opening of his case, so what I would like to know is – I mean the stance of the prosecution – how the opening case tomorrow will be, I just hope to know about it a bit earlier.", "zh-HK": "關先生：係，法官閣下，基於法官閣下嗰個裁決，而家佢個開案嗰度我諗可能要作出一啲修改，咁我想知道就係--即係控方嗰個立場係嗰個--明天個開案會係點，我希望可以早少少睇到嘅啫。" } }, { "doc_id": 81, "seg_id": 38, "translation": { "en": "Mr. So:Our opening case ...", "zh-HK": "蘇先生：我個開案..." } }, { "doc_id": 81, "seg_id": 39, "translation": { "en": "Judge:It should be that they went to where you were and intercepted the vehicle...", "zh-HK": "官：咁佢應該就係去你嗰度截停架車..." } }, { "doc_id": 81, "seg_id": 40, "translation": { "en": "Mr. Kwan:A little bit has been deleted, yes, that is a little bit has been deleted.", "zh-HK": "關先生：就減咗啲，係，即係減咗啲。" } }, { "doc_id": 81, "seg_id": 41, "translation": { "en": "Mr. So:That means merely describing the circumstances at the scene and what was found upon search.", "zh-HK": "蘇先生：即係講出現場個情況，搜到乜嘢嘢啫。" } }, { "doc_id": 81, "seg_id": 42, "translation": { "en": "Judge:That is correct.", "zh-HK": "官：係喇。" } }, { "doc_id": 81, "seg_id": 43, "translation": { "en": "Mr. So:And the part concerning the verbal admission is …", "zh-HK": "蘇先生：就將嗰個口頭招認嗰一部分係..." } }, { "doc_id": 81, "seg_id": 44, "translation": { "en": "Mr. Kwan:As well as what followed.", "zh-HK": "關先生：同埋後面。" } }, { "doc_id": 81, "seg_id": 45, "translation": { "en": "Judge:Right, say he was arrested and where certain items were found upon search.", "zh-HK": "官：係，就話拉咗佢，喺邊度搜到啲嘢咁樣。" } }, { "doc_id": 81, "seg_id": 46, "translation": { "en": "Mr. So:Right, he was arrested, right, that’s it.", "zh-HK": "蘇先生：係，拉咗佢，係，係喇。" } }, { "doc_id": 81, "seg_id": 47, "translation": { "en": "Mr. Kwan:Right, and the customers all left afterwards, afterwards.", "zh-HK": "關先生：係，就後面冇晒啲客，後面。" } }, { "doc_id": 81, "seg_id": 48, "translation": { "en": "Judge:Right, so approximately how many witnesses do you have?", "zh-HK": "官：係，咁你大概會幾多個證人吖？" } }, { "doc_id": 81, "seg_id": 49, "translation": { "en": "Mr. So:For myself, in fact in the present case I actually have one witness only, but I have no idea how many defence [witnesses] we will have to tender for cross-examination.", "zh-HK": "蘇先生：我自己其實喺呢個案之中，其實就真係一個證人嘅啫，不過我唔知道辯方仲需要我哋tender佢幾多位係for cross-examination。" } }, { "doc_id": 81, "seg_id": 50, "translation": { "en": "Judge:I have no idea either.", "zh-HK": "官：我都唔知。" } }, { "doc_id": 81, "seg_id": 51, "translation": { "en": "Mr. So:Yes, I will liaise with them later, yes, yes.", "zh-HK": "蘇先生：係，我會遲啲會同佢聯絡，係，係。" } }, { "doc_id": 81, "seg_id": 52, "translation": { "en": "Judge:What if I leave it to them to … because it seems that they … as they mentioned in their submissions, other persons on their side did not see [what happened].", "zh-HK": "官：不如我呢個交畀佢哋去--因為好似佢哋--佢自己陳詞嘅時間都講，佢其他人都冇見到。" } }, { "doc_id": 81, "seg_id": 53, "translation": { "en": "Mr. So:Yes, yes, yes.”", "zh-HK": "蘇先生：係，係，係。”" } }, { "doc_id": 81, "seg_id": 54, "translation": { "en": "The defence case and evidence", "zh-HK": "辯方的立場及證據" } }, { "doc_id": 81, "seg_id": 55, "translation": { "en": "The defence case was that the drug involved was not found on the person of the defendant upon search. At the material time, the applicant was wearing a pair of beach shorts with no left rear pocket. The defence alleged that PC33410 had indicated to the applicant that the drug involved was found inside the vehicle, and that PC33410 lied in order to frame up the applicant.", "zh-HK": "辯方的立場是涉案的毒品並非是從申請人身上搜出；申請人在案發時穿着的是一條沙灘短褲，而該短褲是沒有左後袋的。辯方指警員33410曾向申請人表示過涉案毒品是在車上找到，而警員33410是說謊誣告申請人。" } }, { "doc_id": 81, "seg_id": 56, "translation": { "en": "At trial, however, the applicant neither gave evidence nor called any witness.", "zh-HK": "但申請人沒有作供自辯，亦沒有傳召證人作供。" } }, { "doc_id": 81, "seg_id": 57, "translation": { "en": "The trial judge’s directions to jury", "zh-HK": "原審法官對陪審團的指引" } }, { "doc_id": 81, "seg_id": 58, "translation": { "en": "The trial judge gave the jury a detailed explanation on the facts of the case and the relevant points of law. He reiterated the stance of both parties. He also specifically reminded the jury not to draw any adverse inference against the applicant on the ground that the applicant himself had not given evidence or called other witnesses for the defence.", "zh-HK": "原審法官有就案情及有關法律議題向陪審團詳細解釋。原審法官有複述雙方的立場。原審法官有特別提醒陪審團不要因為申請人沒有作供或傳召證人作供而對他作出任何不利的推論。" } }, { "doc_id": 81, "seg_id": 59, "translation": { "en": "The trial judge reminded the jury the fact that the applicant had no criminal record and was of good character, and told the jury that it was a fact on which they should take a view favourable to the applicant and which served to indicate it was less probable for the applicant to commit the offence.", "zh-HK": "原審法官有提醒陪審團申請人沒有刑事記錄及品格良好，而陪審團應視該事實對申請人有利，亦能顯示他干犯罪行的機會較低。" } }, { "doc_id": 81, "seg_id": 60, "translation": { "en": "The trial judge also pointed out that, if the jury considered that PC33410 was not veracious and reliable and that the drug involved was not found on the applicant or was probably not found on him, or if they considered that the applicant had no knowledge of the nature of the drug, then they were bound to return a verdict of not guilty.", "zh-HK": "原審法官亦指出如陪審團認為警員33410並非誠實可靠，而涉案的毒品並非或可能並非在申請人身上搜出的；或申請人對毒品的性質並不知情，則他們必須裁定申請人無罪。" } }, { "doc_id": 81, "seg_id": 61, "translation": { "en": "Regarding one of the agreed facts, namely that the drug involved and its packaging did not bear any fingerprints of forensic evidential value, the trial judge did not give any separate directions to the jury. He only repeated PC33410’s statement that to his knowledge there was no police officer who knew the applicant. No further direction was given to the jury apart from this.", "zh-HK": "就雙方同意的其中一項事實，即涉案的毒品及包裝都沒有任何具鑑證價值的指紋一事，原審法官並沒有向陪審團作出任何獨立的指引。原審法官亦只是向陪審團複述警員33410指據他所知沒有警員認識申請人的說法，而沒有再向陪審團作出其他指引。" } }, { "doc_id": 81, "seg_id": 62, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 81, "seg_id": 63, "translation": { "en": "Mr. Ng, Counsel for the applicant, raised three grounds of appeal:", "zh-HK": "代表申請人的吳大律師提出三點上訴理由：" } }, { "doc_id": 81, "seg_id": 64, "translation": { "en": "The speech made by the trial judge before the prosecution opened its case had led the applicant to wrongly decide not to give evidence in defence or call witnesses, the reason being that the trial judge had improperly restricted the issues that the defence might raise at the trial proper. Mr. Ng pointed out that as a result of the trial judge’s view that no reference should be made again to the voir dire, the defence had not been able to fully present its case before the jury as well as to challenge the testimony of PC33410;", "zh-HK": "原審法官在控方開案前的說法，導致申請人錯誤地決定不作供自辯或傳召證人，原因是原審法官不當地局限了辯方在正審時可提出的議題。吳大律師指原審法官認為案中案的環節不應重提會令辯方未能充份地在陪審團前演譯辯方案情及測試警員33410的證供；" } }, { "doc_id": 81, "seg_id": 65, "translation": { "en": "As regards PC33410’s testimony that to his knowledge no one was acquainted with the applicant, the trial judge had failed to point out to the jury that such testimony was hearsay evidence and, as such, could not be taken as evidence of the alleged fact. Furthermore, the trial judge’s reiteration of such testimony to the jury had the effect of reinforcing the suggestion that the police officer had no reason for lying in order to frame up the applicant; and", "zh-HK": "原審法官沒有向陪審團指出警員33410指據他所知無人認識申請人的說法屬傳聞證供，該說法不能被視為是該事實的證據，而原審法官向陪審團複述該說法則構成強調警員沒有理由說謊去誣告請人；及" } }, { "doc_id": 81, "seg_id": 66, "translation": { "en": "The trial judge had neither asked the jury not to allow themselves to be influenced by the reference in the Government Chemist’s report to large quantities of drugs similar to that involved in the present case, nor directed the jury not to draw any adverse inference against the applicant by reason of the content of the said report.", "zh-HK": "原審法官沒有邀請陪審團不要受化驗所報告書上的其他大量同類型毒品出現的影響，亦沒有指導陪審團不要因報告內容而對申請人作出不利的推論。" } }, { "doc_id": 81, "seg_id": 67, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 81, "seg_id": 68, "translation": { "en": "The bag of drug involved in the present case was sent to the Government Laboratory together with nine other bags of ketamine which were irrelevant to the present case. It is highly likely that they were all sent to the Government Laboratory in one lot by the police for the sake of convenience.", "zh-HK": "送往政府化驗所的毒品，除了涉案的一包外，亦包括另外9包氯胺酮。該9包氯胺酮和本案無關，極可能是警方為了方便而將它們和本案所涉的一包氯胺酮一起送往政府化驗所化驗。" } }, { "doc_id": 81, "seg_id": 69, "translation": { "en": "We agree that the approach of sending drugs involved in different cases to the Government Laboratory together instead of separately is open to question. The prosecution only has to adduce such evidence as is relevant to the case, and the drug relevant to the present case was merely one bag of ketamine allegedly found on the applicant. The other drugs had nothing to do with the present case. The police should have dealt separately with drugs involved in different cases, and the prosecution should not have submitted to the court the laboratory test reports of other drugs together with the report of the drug in question, which would only complicate the matter. In our view, the approaches adopted by both the police and the prosecution should be rectified.", "zh-HK": "本庭同意將不同案件所涉的毒品一起送往化驗所化驗，而沒有將它們分開處理的做法有值得商榷之處。控方只須將和案件有關的證據呈堂為證，而和本案有關的毒品只是據稱在申請人身上搜獲的一包毒品氯胺酮，其他毒品和案件無關。警方應將不同案件的毒品獨立處理，而控方亦不應該將其他毒品的化驗報告一起向法庭呈示，將事件複雜化。本庭認為警方和控方的處理方法都應糾正。" } }, { "doc_id": 81, "seg_id": 70, "translation": { "en": "Having said that, in dealing with this appeal, the Court is not concerned with whether a certain approach adopted by the police or the prosecution was entirely proper or not. Instead the Court is concerned with whether the conviction should be quashed for being unsafe or unsatisfactory, or whether the first instance judgment should be quashed by reason of an erroneous decision on a point of law, or whether there was any material irregularity in the course of the trial (see s. 83 of the Criminal Procedure Ordinance (Cap. 221)).", "zh-HK": "但處理本上訴時，法庭要關注的並非是警方或控方的某種做法是否完全洽當，法庭要關注的是有關定罪是否不穩妥或不令人滿意，而應予以作廢；或是否有法律問題有錯誤的決定，應令原判決作廢；或在審訊過程中有重大的不當之處（見《刑事訴訟程序條例》第221章第83條）。" } }, { "doc_id": 81, "seg_id": 71, "translation": { "en": "The prosecution’s stance was clearly that only one bag of dangerous drug was found on the applicant. The parties also agreed that the bag of drug was 0.24 kilogrammes of a powder containing 0.21 kilogrammes of ketamine. The jury must certainly have been aware of the prosecution’s stance and those facts which were not in dispute.", "zh-HK": "控方的立場是明確的，即從申請人身上搜獲的只有一包毒品，而雙方亦同意該包毒品是含0.21公斤氯胺酮的0.24公斤的粉末。陪審團亦必然知悉控方的立場及雙方並無爭議的案情。" } }, { "doc_id": 81, "seg_id": 72, "translation": { "en": "This being the case, the relevant Chemist’s report, which provided no further relevant evidence at all, did not necessarily have to be adduced again as evidence. If it was necessary to adduce the report as evidence, the contents thereof concerning the other nine bags of ketamine should have been deleted. Nonetheless, the laboratory test results in the report which related to drugs irrelevant to the present case would not have affected the jury’s verdict, because they were aware that the present case only involved one bag of 0.24 kilogrammes of a powder containing 0.21 kilogrammes of ketamine.", "zh-HK": "在上述情況下，有關的化驗報告不一定需要再呈堂為證，原因是該分化驗報告完全沒有提供任何進一步的有關證據。如要將化驗報告呈堂為證，則該化驗報告內和其餘9包氯胺酮化驗有關的部分理應刪除。但報告內包括其他和本案無關毒品的化驗結果不會影響陪審團的裁決，原因是陪審團是知悉案情只涉及一包含0.21公斤氯胺酮的0.24公斤粉末。" } }, { "doc_id": 81, "seg_id": 73, "translation": { "en": "In our view, improper as it was, the above approach was neither a material irregularity nor an erroneous decision in law. Nor did it affect the conviction which was safe and satisfactory. Therefore it does not constitute a ground for quashing the conviction.", "zh-HK": "本庭認為上述不當的做法，不構成重大不當之處，亦非錯誤的法律決定，更不會影響有關定罪的穩妥性和滿意性，因此不構成撤銷定罪的理由。" } }, { "doc_id": 81, "seg_id": 74, "translation": { "en": "We also cannot ignore the fact that the above improper approach was taken with the consent of the defence. It is therefore not open to the applicant to rely on that approach in support of his application for leave to quash the conviction.", "zh-HK": "本庭亦不能忽視上述不當的做法是在辯方同意的情況下作出，申請人不能以該做法不當來支持其推翻定罪的上訴許可申請。" } }, { "doc_id": 81, "seg_id": 75, "translation": { "en": "During the examination-in-chief of PC 33410, the prosecutor asked him whether the police officers held grudges against the applicant. The prosecutor’s purpose in asking this was very clear: anticipating that the defence would allege that the police had implanted the exhibit to frame up the applicant, the prosecution intended to take a proactive approach by leading evidence that PC 33410 and other police officers did not know the applicant and held had no grudges against him, and hence they had no reason to frame him up. The relevant dialogue between the prosecutor and the police officer was as follows:", "zh-HK": "向警員33410主問時，主控官曾問過他警員是否和申請人有過節。主控官當時的目的是明確的，是預計辯方會指警方插贓嫁禍申請人而先發制人，表達警員33410和其他警員都不認識申請人，和他無過節，故不會插贓嫁禍他的立場。當時兩人的問答如下：" } }, { "doc_id": 81, "seg_id": 76, "translation": { "en": "Question:Mr. police officer, do you have any grudges against this defendant?", "zh-HK": "問：警員先生，呢位被告，你同佢有冇任何過節呀？" } }, { "doc_id": 81, "seg_id": 77, "translation": { "en": "Answer:I don’t know him.", "zh-HK": "答：我唔識佢。" } }, { "doc_id": 81, "seg_id": 78, "translation": { "en": "Question:As far as you know, did your team of police officers have … any grudges against him?", "zh-HK": "問：據你嘅了解，你嗰隊人對佢有冇任何…同佢有冇任何過節？" } }, { "doc_id": 81, "seg_id": 79, "translation": { "en": "Answer:To my knowledge, no one knows him.", "zh-HK": "答：據我所知都冇人識佢。" } }, { "doc_id": 81, "seg_id": 80, "translation": { "en": "At that time, Counsel for the applicant pointed out that the reply of PC33410 that “To my knowledge, no one knows him” was hearsay evidence and therefore should not be adduced before the jury.", "zh-HK": "當時代表申請人的大律師指警員33410的答案，即“據我所知都冇人識佢”屬傳聞證供不應向陪審團呈述。" } }, { "doc_id": 81, "seg_id": 81, "translation": { "en": "Had the defence alleged that the police had the motive to frame up the applicant because a police officer had had grudges against him, then in questioning PC33410 the defence would have raised questions regarding the identity of the police officer who had grudges against the applicant and the police officer’s motive for framing up the applicant, and then the prosecution would have been allowed to respond as appropriate. By the time of the examination-in-chief of PC33410, the defence still had not raised the point before the jury that the police had the motive for framing up the applicant and that they did do so. At that stage the prosecutor should not have taken the proactive approach of anticipating the defence’s stance and raising matters which were irrelevant to the issues in existence at that time and which were merely peripheral. The prosecutor’s approach was improper, not because the answer given by PC33410 was hearsay evidence, but because the said matter should not have been raised during the examination-in-chief of PC33410. And the trial judge should have dealt with this matter immediately by pointing out the impropriety of what the prosecutor did.", "zh-HK": "如辯方指有某警員因為和申請人有過節，故警隊有動機插贓嫁禍申請人，辯方會在盤問警員33410時，指出和申請人有過節警員的身份及警員嫁禍申請人的動機，到時控方可以作出適當的回應。向警員33410主問時，辯方仍未在陪審團席前指出警隊有動機及有插贓嫁禍申請人，主控官不應在該階段便採取先發制人的方法，預計辯方的立場並提出一些與當時已出現的爭議無關而只是附帶的議題。主控官的做法不恰當，不恰當之處並非警員33410的答案是傳聞證供，而是有關議題不應該在警員33410主問時提出。原審法官亦應立刻處理事件，指出主控官不恰當之處。" } }, { "doc_id": 81, "seg_id": 82, "translation": { "en": "Having said that, in our view, in light of the background to and issues involved in the present case, the prosecutor’s improper approach in raising peripheral issues at an inappropriate stage and the failure of the trial judge to deal with the matter immediately were neither here nor there and would not have rendered the conviction unsafe.", "zh-HK": "但本庭認為主控官在不適當階段提出一些不應提出的附帶議題，而原審法官沒有即場處理，以本案的背景及有關爭議而言不具任何重要性，更不會令定罪的裁決變得不穩妥。" } }, { "doc_id": 81, "seg_id": 83, "translation": { "en": "We cannot ignore the fact that at trial the evidence against the applicant came solely from PC33410. He made an oath before giving evidence, confirming that his evidence would be the truth and nothing but the whole truth. The jury would definitely have considered whether PC33410 was a veracious and reliable witness. The trial judge had repeatedly reminded the jury that, if they took the view that PC33410 was not veracious and reliable and that the drug involved had not been found or possibly was not found upon search on the applicant as alleged by PC33410, then they were obliged to return a verdict of not guilty.", "zh-HK": "本庭不能忽視原審時，唯一對申請人不利的證供源自警員33410。他作供前宣誓並確保其證供真實，亦為事實之全部，並無虛言。陪審團必會考慮警員33410是否是一名誠實可靠的證人，原審法官有重複提醒陪審團如他們認為警員33410並非誠實可靠，而涉案的毒品並非或可能並非如警員33410所指，在申請人身上搜出的，他們都必須裁定申請人無罪。" } }, { "doc_id": 81, "seg_id": 84, "translation": { "en": "This being the case, the fact that the prosecutor had improperly led evidence that there were no grudges between PC33410 and the applicant and that “nobody knows him” was neither here nor there and did not affect the safety of the conviction. This does not constitute a valid ground of appeal.", "zh-HK": "在上述情況下，主控官不恰當地帶出警員33410和申請人沒有過節及“冇人識佢”一事，不具任何重要性，更不會影響有關定罪的穩妥性，不構成有效的上訴理由。" } }, { "doc_id": 81, "seg_id": 85, "translation": { "en": "The prosecution alleged the applicant had made an admission after his arrest, but the trial judge ruled that such admission could not be adduced as evidence. The background to the case showed that, on the basis of certain information, the prosecution kept the applicant under surveillance and then arrested him, and after the arrest the applicant made an admission. Were such information to be fully disclosed to the jury, the applicant would very likely suffer prejudice and the trial might have to be suspended and a new jury empanelled. The dialogue between the trial judge and the defence counsel before the prosecution opened its case merely showed that the trial judge was voicing his concern that the above situation might arise. The trial judge reminded the defence counsel to act cautiously to ensure that no evidence which would be prejudicial to the applicant, and which therefore should not to be disclosed to the jury, would be adduced. The trial judge expressed that he only wished that the defence would carefully consider the matter. The defence counsel also agreed with the trial judge and indicated that only facts such as what was found at the scene and the applicant being arrested for that reason would be raised, in order to avoid evidence prejudicial to the applicant coming into the picture.", "zh-HK": "控方指申請人被拘捕後曾作出招認，但該些招認被原審法官裁定不能呈堂為證。案件的背景顯示控方是根據某些資料而監視及拘捕申請人，而遭拘捕後，申請人曾作出過招認。假若上述資料向陪審團全面披露，則極可能會對申請人做成不利，亦可能導致審訊終止及要重新挑選陪審團。原審法官在控方開案前和辯方大律師的對話只顯示原審法官對上述可能出現的問題提出他的關注。原審法官是提醒辯方大律師小心行事，不要令一些不利申請人故不應向陪審團披露的證據向陪審團展示。原審法官表示他只是希望辯方能小心考慮。辯方大律師亦同意原審法官的立場及表明只會提及現場搜到甚麼東西及因而拘捕申請人等事項，避免一些對申請人不利的證據出現。" } }, { "doc_id": 81, "seg_id": 86, "translation": { "en": "It is true that, during the cross-examination of PC33410, apart from alleging that he had framed up the applicant, the defence could, for the purpose of testing his credibility, also put it to the witness that when he arrested the applicant he assaulted him and took him somewhere, without necessarily having to mention that the applicant had made an admission. Even if the point about the applicant having made an admission had to be disclosed to the jury, the trial judge could have given directions to the jury as appropriate. It was for the defence to consider and decide how to deal with the above issue. If the defence considered it necessary, for the purpose of testing the credibility of PC33410, to point out to the jury that in arresting the applicant PC 334110 had acted improperly and taken the applicant somewhere, the defence could have insisted on taking this course of action and made that clear to the trial judge.", "zh-HK": "當然，辯方在盤問警員33410時，除了指他插贓害申請人外，亦可以向他指出在拘捕申請人時他曾毆打過申請人及將申請人帶過去某些地方，以測試證人的可信性，而不一定要帶出申請人曾有作出過招認一事。即使申請人曾作出過招認一事要向陪審團披露，原審法官亦可以向陪審團作出適當的指引。如何處理上述問題，是辯方要考慮及作出決定。如辯方認為有必要向陪審團指出拘捕申請人時警員33410有作出過某些不當行為及帶過申請人去某些地方以測試警員33410的可信性，辯方可以堅持該做法，並向原審法官表明其立場。" } }, { "doc_id": 81, "seg_id": 87, "translation": { "en": "It is the duty of a trial judge to ensure that the trial proceeds smoothly and effectively and, to that end, the judge is entitled to issue such reminders to both the prosecution and the defence as he deems necessary and appropriate (see, for example, HKSAR v Miyashita Akira CACC 624/1996 and HKSAR v Wong Kay Din CACC 322/1998). If the parties take the view that a reminder given by the judge shows that he misunderstands the crux of the case or that his view is misconceived or unfair to both parties, they should try their best to fight for their position, and they have a duty to make their position and views known to the judge and also request the judge to and ensure he does make a correct ruling. If either party has not tried its best to fight for its position at trial, it cannot thereafter seek to appeal and overturn the original judgment on the ground that it has been influenced by the court into making certain decision which it subsequently considered inappropriate.", "zh-HK": "主審法官在處理案件時，有責任確保審訊能順利及有效率地進行，亦因此有權向控辯雙方作出他認為有需要及恰當的提示（見HKSAR v Miyashita Akira CACC624/1996及HKSAR v Wong Kay Din CACC322/1998等案）。如控辯雙方認為主審法官的提示顯示他對案件的重點有誤解，或看法不正確或對雙方不公平，他們應據理力爭，亦有責任向主審法官提出他們的立場及說法，要求及確保主審法官作出正確的裁決。控辯任何一方不能在原審時沒有據理力爭，而在事後以受到法庭的影響作出他們事後認為不恰當的決定，作為上訴理由以冀推翻原判。" } }, { "doc_id": 81, "seg_id": 88, "translation": { "en": "The trial judge was entitled to comment on matters and express the hope that the defence would direct its attention on certain matter(s). At trial the trial judge had indicated clearly to Counsel for the applicant that “this is something you have to consider for yourself”, and Counsel for the applicant also indicated that “I may have to consider it thoroughly and take instructions”. The trial judge had not mandatorily required the defence to deal with the matter in any particular way; indeed he had not expressed a stance on the matter. In giving the reminder, the objective of which was to ensure that the trial could proceed smoothly, the trial judge was acting properly.", "zh-HK": "原審法官有權對事件作出評論及希望辯方會關注某些事項。原審法官有向原審時代表申請人的大律師表明“但係呢個你自己去考慮”，而代表申請人的大律師亦表示“我要詳細諗清楚同埋攞啲指示嘅”。原審法官並沒有強制辯方如何處理有關議題，更沒有在事件上表明甚麼立場。原審法官作出提示的目的是確保審訊能順利進行，是恰當的做法。" } }, { "doc_id": 81, "seg_id": 89, "translation": { "en": "At trial, in the course of questioning PC33410, Counsel for the applicant did not in the end raise the applicant’s allegation regarding his having been beaten up when boarding the vehicle as well as the incident inside the canteen at Tsuen Wan Police Station. This was a decision made by the defence after careful deliberation. The reminder given by the trial judge had not prevented the defence from stating its case fully and hence does not constitute a ground of appeal to that effect.", "zh-HK": "原審時申請人的代表大律師在盤問警員33410時，最終沒有述及申請人指在上車時遭人毆打及在荃灣警署飯堂時的環節，是辯方詳細考慮後作出的決定。原審法官的提示不構成任何導致辯方未能充份地表述其案情的上訴理由。" } }, { "doc_id": 81, "seg_id": 90, "translation": { "en": "We have considered and rejected the grounds of appeal put forward by Mr. Ng of Counsel. We find nothing unsafe or unsatisfactory in the applicant’s conviction. We have therefore dismissed the applicant’s application for leave to appeal the conviction.", "zh-HK": "本庭已考慮過吳大律師的上訴理由，本庭不接納該些理由。對申請人被裁定罪名成立，本庭不覺有任何不穩妥之處。因此，本庭不批准申請人就定罪的上訴許可申請。" } }, { "doc_id": 81, "seg_id": 91, "translation": { "en": "Mr. Francis Lo, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員盧慶祥代表。" } }, { "doc_id": 81, "seg_id": 92, "translation": { "en": "Mr. Alex Ng, instructed by Messrs. A.M. Mui & Kwan, for the Applicant", "zh-HK": "申請人：由梅智傑姚定邦律師行轉聘大律師吳政煌代表。" } }, { "doc_id": 82, "seg_id": 1, "translation": { "en": "Hon Cheung JA (delivering the reasons of judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 82, "seg_id": 2, "translation": { "en": "The Applicant was charged with two counts of Fraud, contrary to section 16A of the Theft Ordinance, Cap 210. Deputy District Court Judge Yip, as he then was, convicted the Applicant on both counts after trial and sentenced him to 15 months’ imprisonment. The application applied for leave to appeal against convictions. This Court dismissed his application after hearing. The reasons are as below:", "zh-HK": "申請人被控兩項「詐騙」罪，違反《盜竊罪條例》(《條" } }, { "doc_id": 82, "seg_id": 3, "translation": { "en": "Particulars of offence", "zh-HK": "例》) (香港法例第210章）第16A條。案件經區域法院暫委法官葉佐文(當時官階)審理後，申請人被裁定兩項罪名成立及被判監15個月。申請人就定罪提出上訴許可申請，本庭在上訴聆訊後駁回申請，以下是本庭的判案理由。" } }, { "doc_id": 82, "seg_id": 4, "translation": { "en": "It is alleged in the two charges that the Applicant, an employee of Dah Chong Limited (Dah Chong Hong), concealed the interests he had in two companies, and induced Dah Chong Hong to engage the two companies to provide training and consulting services to its employees.", "zh-HK": "控罪詳情" } }, { "doc_id": 82, "seg_id": 5, "translation": { "en": "The particulars of the first charge were:", "zh-HK": "該兩項控罪指申請人身為大昌貿易行有限公司(「大昌行」)的僱員，隱瞞他在兩間公司擁有權益的事實，並誘使「大昌行」聘用該兩間公司為其僱員提供訓練及顧問服務。" } }, { "doc_id": 82, "seg_id": 6, "translation": { "en": "‘[The Applicant], between 15th day of May 2006 and the 7th day of September 2007, in Hong Kong, by deceit, namely, by concealing from and failing to disclose to Dah Chong Hong Limited of his or his parents’ interests in Comwell Management Consultant Company Limited whilst the said [Applicant] was an employee of Dah Chong Hong Limited and was under a duty to make full disclosure of any existing or potential conflict with Dah Chong Hong Limited’s interest, and with intent to defraud, induced Dah Chong Hong Limited to engage Comwell Management Consultant Company Limited to provide training and consulting services to Dah Chong Hong Limited, which resulted in benefit to Comwell Management Company Limited or in prejudice or a substantial risk of prejudice to Dah Chong Hong Limited.", "zh-HK": "第一項控罪的控罪詳情如下：" } }, { "doc_id": 82, "seg_id": 7, "translation": { "en": "Except the period of offence and name of the company, the particulars of the 2nd charge were the same as the first one. The period of offence of the 2nd charge was between 15th May 2006 and 8th October 2007, the name of the company was Host International Company Limited (Host).", "zh-HK": "「[申請人]於2006年5月15日至2007年9月7日期間在香港，藉作欺騙(即向大昌貿易行有限公司隱瞞和沒有向大昌貿易行有限公司披露他或他父母在金滙管理顧問有限公司的權益，而當時該[申請人]是大昌貿易行有限公司的僱員並有責任全面披露任何與大昌貿易行有限公司之間現有或潛在的利益衝突)並意圖詐騙而誘使大昌貿易行有限公司聘用金滙管理顧間有限公司向大昌貿易行有限公司提供訓練及顧問服務，導致金滙管理顧問有限公司獲得利益，或導致大昌貿易行有限公司蒙受不利或有相當程度的可能性會蒙受不利。」" } }, { "doc_id": 82, "seg_id": 8, "translation": { "en": "Prosecution Case", "zh-HK": "第二項控罪的控罪詳情除了犯案期間和公司名稱外都與第一項控罪相同。第二項控罪的犯案期間是由2006年5月15日至2007年10月8日，公司名稱是「灝鍶國際有限公司」(「灝鍶」)。" } }, { "doc_id": 82, "seg_id": 9, "translation": { "en": "The shareholder and director of the aforesaid Comwell Management Consultant Company Ltd (Comwell) and Host were the Applicant’s parents. According to the evidence of the Applicant’s ex-wife (PW1), she and the Applicant took care of the business of the two companies from 1997 and 1998, the respective years when the companies were founded, to 2003. He was responsible for organizing training programmes and she handling paperwork and internal affairs. The parents of the Applicant had never taken care of the business of the two companies. The Applicant’s ex-wife divorced him in 2003 and she had never again taken care of the business of the two companies since then.", "zh-HK": "控方案情" } }, { "doc_id": 82, "seg_id": 10, "translation": { "en": "The Applicant had been employed by Dah Chong Hong since 24th June 2002 as Training Manager and attached to the Human Resources Section of Dah Chong Hong. His scope of duties included organizing training programmes for the staff of Dah Chong Hong, identifying suitable training services companies, and recommending some companies to his supervisor/s for providing training to the staff of Dah Chong Hong.", "zh-HK": "上述的「金滙管理顧問有限公司」(「金滙」)及「灝鍶」的股東及董事分別是申請人的父母親。根據申請人的前妻(控方證人之一)的證供，這兩間公司的業務分別自1997及1998年成立以來至2003年都是由她和申請人打理的。申請人負責策劃訓練課程，而她則負責處理文件及內務。申請人的雙親從沒有打理過這兩間公司的業務。申請人的前妻在2003年與申請人離婚，之後就再沒有打理這兩間公司的業務。" } }, { "doc_id": 82, "seg_id": 11, "translation": { "en": "In respect of the first charge, on the recommendation of the Applicant, Dah Chong Hong awarded seven training contracts to Comwell between February 2006 and September 2007. Dah Chong Hong paid a total of HK$1,056,500 to Comwell for the seven contracts.", "zh-HK": "申請人自2002年6月24日受聘於「大昌行」，職位是培訓經理，隸屬於「大昌行」的人力資源部。申請人的工作範圍包括為「大昌行」員工安排培訓課程、物色合適的培訓服務公司及向其上司推薦一些公司為「大昌行」的職員進行培訓。" } }, { "doc_id": 82, "seg_id": 12, "translation": { "en": "In respect of the second charge, on the recommendation of the applicant, Dah Chong Hong awarded five training contracts to Host between August 2006 and October 2007 and paid it HK$670,996.05.", "zh-HK": "關於第一項控罪，在2006年2月至2007年9月期間「大昌行」在申請人推薦下批出七份培訓合約給「金滙」。「大昌行」就有關的七份合約共支付了HK$1,056,500給「金滙」。" } }, { "doc_id": 82, "seg_id": 13, "translation": { "en": "The Prosecution alleged that when recommending Comwell and Host to Dah Chong Hong, the Applicant did not declare his or his parents’ interests in Comwell and Host. The supervisor of the Applicant said in making the selection, he would consider the experience of the contractors, their capabilities and charging rates before deciding to whom the contract should be awarded. The Applicant would then be informed of the result orally. Had he been aware of the interests the Applicant had in the Companies when considering the courses the Applicant recommended or when making payment, he would no doubt have refused to accept the companies he recommended.", "zh-HK": "至於第二項控罪，在2006年8月至2007月10月期間「大昌行」在申請人的推薦下批出五份培訓合約給「灝鍶」及支付了HK$670,996.05給「灝鍶」。" } }, { "doc_id": 82, "seg_id": 14, "translation": { "en": "Code of Conduct", "zh-HK": "控方指申請人在推薦「金滙」及「灝鍶」給「大昌行」時沒有就他或他的父母在「金滙」及「灝鍶」的權益作出申報。申請人的上司表示他在批核培訓合約前會考慮承辦商的資歷、能力和價錢，然後將結果以口頭形式通知申請人。假若他在考慮申請人所推薦的課程或付款時知道申請人在有關的公司擁有權益的話，他一定不會接納申請人所推薦的有關公司。" } }, { "doc_id": 82, "seg_id": 15, "translation": { "en": "The learned judge ruled that the applicant had obtained from Dah Chong Hong an English copy of staff Code of Conduct (the Code), item 1.4 of which deals with conflicts of interests. Dah Chong Hong had given the Chinese version of the Code to its staff. As both parties agreed in the appeal that the English and the Chinese versions are the same, this Court therefore adopts the Chinese version of item 1.4:", "zh-HK": "《紀律守則》" } }, { "doc_id": 82, "seg_id": 16, "translation": { "en": "‘1.4Conflict of Interest Situations", "zh-HK": "葉法官裁定申請人從「大昌行」獲取一份英文版本的僱員《紀律守則》(《守則》)，守則的第1.4項是處理利益衝突的規則。「大昌行」亦有派發《守則》的中文版本給其員工。由於在上訴時控辯雙方均同意中、英版本的內容相同，本庭因此採用中文版本第1.4項的內容：" } }, { "doc_id": 82, "seg_id": 17, "translation": { "en": "Conflict of interest situations arise when the personal interests of employees compete or conflict with the interests of Company. Such situations at best can lead to divided loyalty and at worst can result in corruption or other questionable practices.", "zh-HK": "「1.4 處理利益衝突情況" } }, { "doc_id": 82, "seg_id": 18, "translation": { "en": "The most common types of conflict of interest situations employees may be involved in are:", "zh-HK": "產生利益衝突是指當僱員的個人利益與公司的利益互相競爭或有抵觸。在這種情況下，輕則僱員會分弱對公司的忠誠，而重者則會導致貪污或誘發其他不正當的行為。" } }, { "doc_id": 82, "seg_id": 19, "translation": { "en": "having undeclared financial interests in any supplier, contractor or party that do business with the Company;", "zh-HK": "以下是僱員最常遇到的幾類利益衝突情況:" } }, { "doc_id": 82, "seg_id": 20, "translation": { "en": "offering assistance to the Company’s competitors through taking on part-time employment of “consultancy” service;", "zh-HK": "與本公司有商業往來的任何供應商、承包商或團體中擁有財務權益，而未作聲明；" } }, { "doc_id": 82, "seg_id": 21, "translation": { "en": "engaging in production of services or goods in competition with the Company;", "zh-HK": "藉任兼職或提供「顧問」服務以協助本公司的競爭對手；" } }, { "doc_id": 82, "seg_id": 22, "translation": { "en": "performing outside work on the Company’s premises and using the Company’s time and assets; and", "zh-HK": "私下參與提供服務或製造貨品的商業活動，與公司競爭生意；" } }, { "doc_id": 82, "seg_id": 23, "translation": { "en": "giving unduly favourable treatment to particular supplier, contractor, customer, job applicant or subordinate for personal reasons.", "zh-HK": "在公司內從事外間的工作及擅用公司的時間和資產；及" } }, { "doc_id": 82, "seg_id": 24, "translation": { "en": "Every employee of the Company should take it as his personal responsibility to avoid engaging in situation that may lead to or be involved in conflict of interest. He should at all times ensure that his dealings with customers, suppliers, contractors and colleagues do not place him in a position of obligation that my lead to a conflict of interest.", "zh-HK": "為私人理由特別優待某供應商、承包商、顧客、職位申請人或下屬。" } }, { "doc_id": 82, "seg_id": 25, "translation": { "en": "In cases where an employee or his immediate family might have engaged in or are considering engaging in business, investments or activities that might have existing or potential conflict with the Company’s interests, it is the responsibility of the employee to discuss and make full disclosure in writing to the General Manager, Group Human Resources & Administration.’", "zh-HK": "所有僱員都有責任避免牽涉在利益衝突的情況或可能引致利益衝突的情況中。與顧客、供應商、承包商及同事在公事往還時，應時常保持警覺，確保不會因而負上責任而引致日後出現利益衝突情況。如某僱員或其直系親屬正從事或考慮從事一些與本公司有利益衝突或可能會有衝突的事務、投資或活動，他有責任以書面向集團人力資源及行政總經理申報並詳述其全。」" } }, { "doc_id": 82, "seg_id": 26, "translation": { "en": "Decision of the learned judge", "zh-HK": "葉法官的裁決" } }, { "doc_id": 82, "seg_id": 27, "translation": { "en": "The learned judge ruled that the Applicant clearly knew that according to the Code, he had the duty towards Dah Chong Hong to declare his interests in the two companies, but he intentionally and dishonestly concealed or failed to disclose them. He was therefore guilty of Fraud.", "zh-HK": "葉法官根據《守則》裁定申請人是清楚知道他有責任向「大昌行」申報他在該兩間公司擁有權益，但他蓄意及不誠實地隱瞞或不披露事件，因此申請人是干犯了「欺騙」罪。" } }, { "doc_id": 82, "seg_id": 28, "translation": { "en": "Section 16A of the Ordinance", "zh-HK": "《條例》第16A條" } }, { "doc_id": 82, "seg_id": 29, "translation": { "en": "Section 16A of the Ordinance states:", "zh-HK": "《條例》第16A條說：" } }, { "doc_id": 82, "seg_id": 30, "translation": { "en": "‘(1)If any person by any deceit (whether or not the deceit is the sole or main inducement) and with intent to defraud induces another person to commit an act or make an omission, which results either -", "zh-HK": "「(1) 如任何人藉作任何欺騙(不論所作欺騙是否唯一或主要誘因)並意圖詐騙而誘使另一人作出任何作為或有任何不作為，而導致—" } }, { "doc_id": 82, "seg_id": 31, "translation": { "en": "in benefit to any person other than the second-mentioned person; or", "zh-HK": "(a) 該另一人以外的任何人獲得利益；或" } }, { "doc_id": 82, "seg_id": 32, "translation": { "en": "in prejudice or a substantial risk of prejudice to any person other than the first-mentioned person.", "zh-HK": "(b) 該進行誘使的人以外的任何人蒙受不利或有相當程度的可能性會蒙受不利，" } }, { "doc_id": 82, "seg_id": 33, "translation": { "en": "the-first mentioned person commits the offence of fraud and is liable on conviction upon indictment to imprisonment for 14 years.", "zh-HK": "則該進行誘使的人即屬犯欺詐罪，一經循公訴程序定罪，可處監禁14年。" } }, { "doc_id": 82, "seg_id": 34, "translation": { "en": "(2)For the purposes of subsection (1), a person shall be treated as having an intent to defraud if, at the time when he practices the deceit, he intends that he will by the deceit (whether or not the deceit is the sole or main inducement) induce another person to commit an act or make an omission, which will result in either or both of the consequences referred to in paragraphs (a) and (b) of that subsection.’", "zh-HK": "(2) 為施行第(1)款，任何人如在進行欺騙時意圖藉所進行的欺騙(不論所進行的欺騙是否唯一或主要誘因)誘使另一人作出任何作為或有任何不作為，而因此會導致該款(a)及(b)段所提述的兩種後果或其中一種後果產生，則該人須被視為意圖詐騙。」" } }, { "doc_id": 82, "seg_id": 35, "translation": { "en": "According to 16A(3), ‘deceit’ is defined as: ‘any deceit (whether deliberate or reckless) by words or conduct (whether by act or omission) as to fact or as to law, including a deceit relation to the past, the present or the future and a deceit as to the intentions of the person practising the deceit or of any other person.’", "zh-HK": "根據第16A(3)條，「欺騙」的定義是：「就事實或法律而以語言文字或行為作出的任何欺騙，包括與過去、現在或將來有關的欺騙，以及就進行欺騙的人或任何其他人的意圖而作出的欺騙，而在本定義中，行為指任何作為或不作為，欺騙則指蓄意或罔顧後果地作出的欺騙」。" } }, { "doc_id": 82, "seg_id": 36, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 82, "seg_id": 37, "translation": { "en": "Mr David Ma, Counsel for the applicant, submitted that the key to this case lay with the following four points:", "zh-HK": "代表申請人的馬維騉大律師指本案的關鍵在於以下四點：" } }, { "doc_id": 82, "seg_id": 38, "translation": { "en": "Whether or not the Code can give the Prosecution sufficient basis to make the Applicant legally obliged to make the disclosure?", "zh-HK": "《守則》可否給予控方一個足夠的基礎令申請人負上法律責任作出披露；" } }, { "doc_id": 82, "seg_id": 39, "translation": { "en": "Was the Applicant in breach of the stipulations of the Code?", "zh-HK": "申請人有否違反《守則》的規定？" } }, { "doc_id": 82, "seg_id": 40, "translation": { "en": "If he were, should he therefore be held criminally liable?", "zh-HK": "就算申請人有違反《守則》的規定，他是否因此而須負上刑責？" } }, { "doc_id": 82, "seg_id": 41, "translation": { "en": "Was he dishonest?", "zh-HK": "申請人是否不誠實？" } }, { "doc_id": 82, "seg_id": 42, "translation": { "en": "Mr Ma submitted that the answer to all four questions was ‘No’.", "zh-HK": "馬大律師指上述四個問題的答案都是「不」。" } }, { "doc_id": 82, "seg_id": 43, "translation": { "en": "Whether or not the Code can give the Prosecution sufficient basis to make the Applicant legally obliged to make the disclosure?", "zh-HK": "《紀律守則》能否提供控方一個足夠的基礎令申請人負上法律責任作出披露？" } }, { "doc_id": 82, "seg_id": 44, "translation": { "en": "Mr Ma submitted that according to paragraph 1.4 of the Code, there is ‘conflict of interest’ when ‘the personal interests of employees compete or conflict with the interests of the Company’. As ‘mutual competition’ is not applicable to the present case, the only issue is therefore ‘conflicting interests’.", "zh-HK": "馬大律師指出根據《守則》第1.4段，「利益衝突」是指「僱員的個人利益與公司的利益互相競爭或有抵觸」。由於「互相競爭」不適用於本案，故此本案只涉及「利益抵觸」的爭議。" } }, { "doc_id": 82, "seg_id": 45, "translation": { "en": "He said that the pre-condition of the entire item 1.4 is that it must be interpreted as in the above, that is, merely by not declaring his interests in the two companies does not mean that the applicant necessarily had ‘conflicting interests’. Whether or not there were ‘conflicting interests’ depends on whether his own personal interests conflicted with those of Dah Chong Hong. No doubt, before deciding which contractors to engage, the most important consideration Dah Chong Hong had was whether the contractors provided good quality services at reasonable prices. But the Prosecution had neither adduced evidence on the quality of services or level of charges of the two companies, nor evidence on the level of charges of other companies providing similar services. In passing sentence, the learned judge even said expressly that he agreed to the submission of the defence on this. Mr Ma submitted that in the absence of such evidence, the Court could not properly find if the interests the applicant had in the two companies were in conflict with those of Dah Chong Hong. If they were not, it could not have constituted the so-called ‘conflict of interest’ in item 1.4, and the applicant was not therefore bound by it to declare.", "zh-HK": "他說整項1.4段都必須以上述的解釋作為先決條件，即若申請人只是擁有該兩間公司的權益而不作申報，這不等於他必定有「利益衝突」。「利益衝突」的存在應視乎他個人的利益與「大昌行」的利益是否有抵觸。毫無疑問，「大昌行」在決定聘用哪一間承辦商前，最重要的考慮是它們的服務質素是否優良及價錢是否合理，但控方既沒有就該兩間公司的服務質素或收費水平提出證據，也沒有提出證據來反映其他公司對於同類形的服務收費水平。葉法官在判刑時更明言他同意辯方有關方面的陳詞。馬大律師稱在缺乏這些證據支持下，法庭是不能恰當地裁定申請人在該兩間公司擁有權益有否與「大昌行」的利益抵觸。若沒有的話，便不能構成第1.4段內的所謂「利益衝突」了，因此申請人亦不會受制於申報的規定。" } }, { "doc_id": 82, "seg_id": 46, "translation": { "en": "First, this Court is of the view that the charges allege that the applicant concealed and failed to disclose his and his parents’ interests in the two companies, and this concerns false representations through ‘omission’. The Court of Appeal in the case of HKSAR v Chan Shu Hung and Sze Yuen Nau (CACC512/2001) agreed to the following point of law: For a concealment of facts to be transformed into a false representation, the precondition is that the concealing party has a duty to disclose the relevant facts to the party from whom the facts are concealed. In other words, unless the parties have a special relationship or are bound by contract of a special nature so that the concealing party has the duty to disclose to the other party the facts, otherwise, the concealment of those facts would not be transformed into false representation.", "zh-HK": "首先本庭認為有關的控罪是指申請人向「大昌行」隱瞞及沒有披露他和雙親在該兩間公司擁有權益的事，這是涉及「不作為」(‘omission’)的虛假陳述。上訴法庭在香港特別行政區訴陳樹雄及施緣鈕（CACC 512/2001）一案中同意以下的法律觀點 ：隱瞞事實這一點要構成虛假陳述的先決條件是隱瞞一方有責任向對方披露有關事實，換句話說，除非雙方有特殊關係或合約的性質特殊，令隱瞞一方有責任向對方披露有關事實，否則隱瞞該些事實不會構成虛假陳述。" } }, { "doc_id": 82, "seg_id": 47, "translation": { "en": "In the present case, the Applicant is an employee of Dah Chong Hong. According to the Code, one of the situations where personal interests conflict with the interests of the Company is when the ‘employee has undeclared financial interests in any supplier, contractor or party that does business with the Company.’ The Code also says that in cases where an employee or his immediate family might have engaged in or are considering engaging in business, investments or activities that might have existing or potential conflict with the Company’s interests, it is the responsibility of the employee to discuss and make full disclosure in writing to the General Manager, Group Human Resources and Administration. This Court finds that in the light of the employee/employer relationship between Dah Chong Hong and the Applicant and the stipulations of the Code, the Applicant had the duty to disclose to Dah Chong Hong the interests in question.", "zh-HK": "在本案，申請人是「大昌行」的僱員，根據《守則》僱員的個人利益與公司的利益有抵觸的其中一種情況是「僱員與公司有商業往來的任何供應商、承包商及團體中擁有財務權益而未作出聲明」。《守則》更說如僱員或其直系親屬正從事或考慮從事一些與公司有利益衝突或可能會有衝突的事務、投資或活動，他是有責任以書面形式向集團人力資源及行政總經理申報並詳述其全。本庭裁定鑑於申請人與「大昌行」的僱主/僱員關係，再加上《守則》的規定，申請人是有責任向「大昌行」披露其權益的。" } }, { "doc_id": 82, "seg_id": 48, "translation": { "en": "Why were the interests the Applicant had in the two companies in conflict with those of his employer? The answer is obvious. It was the Applicant’s duty to recommend to his employer contractors who were interested in getting the training contracts of Dah Chong Hong, contracts which the training companies he or his parents owned were also interested in getting. Such connection firstly had ‘potential’ conflict with the interests of the employer, as the employer selected contractors basing on the recommendations of the Applicant. ‘Real’ conflict of interests arose when, in order to get the contracts, the Applicant refrained from recommending to his employer companies which offered terms similar to, or even more favourable than, those offered by his own companies. The Code required that employees to disclose to the employer when the former situation arose for the purpose of dealing with such ‘potential’ conflict of interests. Even if in the end, the applicant did not make use of his office to make unreasonable recommendations, his employer was still entitled to make the selections on fully informed basis. In the present case, the evidence the Prosecution relied on was had Dah Chong Hong been aware of the interests the applicant had in the two companies, it would not have selected them as its service providers.", "zh-HK": "為何申請人在該兩間公司擁有權益會與他的僱主的利益產生衝突呢？答案是明顯的。申請人的職務是向僱主推薦一些希望取得「大昌行」培訓課程合約的承辦商，而他本人或他雙親所擁有的培訓公司亦有意取得「大昌行」的合約，這個關係與其僱主的利益首先產生「潛在」的利益衝突，因為其僱主是根據申請人的推薦而選用承辦商的。當申請人為了爭取承辦合約而不向其僱主推薦一些與他的公司有相約或甚至更好條件的承辦商時就會產生「實際」的利益衝突。《守則》規定僱員需要在第一種例子出現時向僱主作出披露，這就是針對這種「潛在」的利益衝突情況。就算最終申請人沒有利用職權作出不合理的推薦，但他的僱主是有權在獲悉全部事實的情況下作出選擇。本案控方所依賴的證據是「大昌行」如得悉申請人在這兩間公司擁有權益的話，它就不會選擇它們為「大昌行」提供服務。" } }, { "doc_id": 82, "seg_id": 49, "translation": { "en": "For the above reasons, this Court does not accept the submission of Mr Ma. As mentioned earlier in this judgment, since there existed potential conflict between the personal interests of the Applicant and those of Dah Chong Hong, the Applicant had to disclose his interests to his employer, the Prosecution does not have to adduce the evidence Mr Ma said it has to before it could prove that the Applicant was under a duty to disclose.", "zh-HK": "基於上述原因本庭不同意馬大律師的陳述。正如上文所說，申請人本身的利益及「大昌行」的利益已存有潛在利益衝突情況，所以申請人是有需要向其僱主披露其利益的，控方是無須提供馬大律師所指的證據才可以證明申請人須負上披露的責任。" } }, { "doc_id": 82, "seg_id": 50, "translation": { "en": "Was the Applicant in breach of the stipulations of the Code?", "zh-HK": "申請人有否違反《紀律守則》的規定？" } }, { "doc_id": 82, "seg_id": 51, "translation": { "en": "Mr Ma submitted that there is no evidence in the case to show that the applicant knew or believed that the interests he had in the two companies were in conflict with those of Dah Chong Hong. In the absence of evidence on the quality of service and charges, the Prosecution could not rule out the possibility that the Applicant had borne in mind the interests of Dah Chong Hong, and brought about the possibility where the interests of Dah Chong Hong were not in conflict with those he had in the two companies. Besides, how the so-called ‘conflict of interest’ referred to in item 1.4 should be interpreted was up to the judgment of the employee (i.e., the Applicant). When there is no evidence to show that the interests the Applicant had in the two companies conflicted with (harmed) those of Dah Chong Hong, the Prosecution failed to prove that the Applicant knew that he had the duty to declare. Merely proving that the Applicant had been given the Code and understood its contents does not mean that it had been proved that he knew or believed that the interests he had in the two companies were in conflict with those of Dah Chong Hong, and hence under the duty to disclose.", "zh-HK": "馬大律師指案件沒有證據顯示申請人是知道或相信「大昌行」與他在有關的兩間公司擁有權益會產生抵觸。在沒有有關服務質素及價錢的證據的情況下，控方不能排除申請人是有顧及「大昌行」的利益，而達致一個「大昌行」的利益沒有與他在有關的兩間公司擁有權益有抵觸的可能性。況且，如何闡釋第1.4段內所謂「利益衝突」是要依賴僱員(即申請人)的判斷。在缺乏可顯示「大昌行」的利益與申請人在有關的兩間公司擁有權益有抵觸(侵害)的情況下，控方是未能證明申請人是知道他有責任作出申報的。單單證明到申請人曾獲派《守則》及明白它的內容不等於證明到申請人是知道或相信他在有關的兩間公司擁有權益與「大昌行」的利益有抵觸，他因而有申報的責任。" } }, { "doc_id": 82, "seg_id": 52, "translation": { "en": "As mentioned earlier in this judgment, this Court is of the view that the correct approach to analyze this case is to see if the position of the Applicant vis-a-vis the interests of the Company could give rise to any potential conflict or inconsistency of interests; if so, such conflict or inconsistency was sufficient to require the applicant to declare; the Prosecution did not have to adduce further evidence to prove that the acts of the Applicant had actually breached the stipulations on conflict of interests.", "zh-HK": "本庭認為正如上文所說，分析本案的正確方法是申請人的立場與公司的利益是否出現潛在的利益衝突或抵觸，如果有的話這類的衝突或抵觸足以令申請人作出申報，控方無須提供進一步的證據來證明申請人的行為是實際上違反了利益衝突的規定。" } }, { "doc_id": 82, "seg_id": 53, "translation": { "en": "If he were in breach of the Code, should he therefore be held criminally liable?", "zh-HK": "就算違反《紀律守則》，申請人是否因此須負刑責？" } }, { "doc_id": 82, "seg_id": 54, "translation": { "en": "Mr Ma said the Code was not legally binding; the worst that could happen to the applicant for breaching the Code was to be dismissed by Dah Chong Hong but not to be held criminally liable.", "zh-HK": "馬大律師說《守則》並沒有法律約束力，違反《守則》的最嚴重後果只不過是申請人會被「大昌行」解僱，而不是他須負上刑責。" } }, { "doc_id": 82, "seg_id": 55, "translation": { "en": "This Court agrees that looking at the Code alone, it imposes restrictions on the civil acts of the employees vis-a-vis Dah Chong Hong, but this Court is of the view that if the Applicant was in breach of the Code, and had the dishonest intention to defraud Dah Chong Hong, inducing it to award contracts to Comwell and Host, this can constitute a criminal offence under section 16A. Breaching the Code is an important piece of evidence to support the charge. ‘Deceit’ is interpreted as to mean any deceit whether by ‘act’ or ‘omission’; the latter means to conceal facts that should have been disclosed to the employer. The Applicant’s failure to declare was an ‘omission’. If his intention was dishonest as mentioned later in this judgment, this constitutes the offence of ‘Fraud’.", "zh-HK": "本庭同意單以《守則》來說，它是「大昌行」與其僱員在民事行為上的制約，但本庭認為申請人若違反《守則》，並且有不誠實的意圖欺騙「大昌行」，誘使它批出合約予「金滙」及「灝鍶」，這是可以構成第16A的刑事罪行的。違反《守則》是支持控罪的其中一項重要的證據。「欺騙」的釋義包括以「行為」所作出的欺騙，而行為亦包括「不作為」，「不作為」即是隱瞞需要向僱主披露的事實。申請人不作出申報是一種「不作為」，若其意圖如下文所說是不誠實，這就可構成「欺詐」罪。" } }, { "doc_id": 82, "seg_id": 56, "translation": { "en": "Was the Applicant dishonest?", "zh-HK": "申請人是否不誠實？" } }, { "doc_id": 82, "seg_id": 57, "translation": { "en": "Mr Ma submitted that breaching the Code was not equal to being dishonest. The main consideration an employee has when deciding whether or not to observe the Code is if he will be punished or even dismissed by the Company, a situation where the element of honesty or dishonesty does not usually exist.", "zh-HK": "馬大律師說違反《守則》並不等於不誠實。僱員是否遵守《守則》主要是考慮到自己會否被公司處罰或甚至被解僱，這情況通常都不存在誠實與否的因素。" } }, { "doc_id": 82, "seg_id": 58, "translation": { "en": "This Court agrees that civil and criminal liabilities are different. In this case, the learned judge had rejected the defence that the applicant had made disclosure to his supervisor. According to the Code, the applicant was required to disclose to his employer the interests he had in the two Companies, but he chose not to do so, and elected not to give evidence. In these circumstances, the learned judge was entitled to infer that the intention the applicant had was a dishonest one.", "zh-HK": "本庭同意民事及刑事責任是有分別的。在本案葉法官已經拒絕接納申請人曾經向其上司作出披露的辯稱。根據《守則》申請人是需要向其僱主披露他在該兩間公司擁有權益的，但他選擇不這樣做，同時他更選擇不作供自辯。葉法官在這情況下是有權作出申請人的意圖是不誠實的推論。" } }, { "doc_id": 82, "seg_id": 59, "translation": { "en": "Mr Robert Lee, Senior Assistant Director of Public Prosecutor, of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司署理高級助理刑事檢控專員李鏡鏞代表。" } }, { "doc_id": 82, "seg_id": 60, "translation": { "en": "Mr David Ma, instructed by Tang, Wong and Cheung, for the Applicant", "zh-HK": "申請人： 由鄧黃張律師事務所轉聘馬維騉大律師代表。" } }, { "doc_id": 83, "seg_id": 1, "translation": { "en": "Hon Yeung V-P (giving the reasons for judgment of the Court):", "zh-HK": "高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 83, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 83, "seg_id": 3, "translation": { "en": "The appellant, Chan Yuen Yee Carrie, entered on 13 January 2015 a room and a locker room on the 7th floor of a hotel in North Point from where she took away 5 towels engraved with the name of the hotel and an electric kettle. The properties were worth about $330. She was stopped by hotel staff when she was leaving with them. The hotel staff recovered from the paper page the appellant carried the aforesaid towels and electric kettle. The police was called.", "zh-HK": "上訴人（陳婉兒）在2015年1月13日進入北角一酒店7樓的一房間和一儲物室，拿走價值約330元的5條刻有酒店名字的毛巾和一個電熱水煲後離開時，被酒店職員截停。酒店職員在上訴人攜帶的紙袋內找回上述毛巾和電熱水煲後報警。" } }, { "doc_id": 83, "seg_id": 4, "translation": { "en": "As a result, the appellant was charged with one count of burglary and was finally arranged to stand trial in the District Court on 13 May 2015. Before the trial, she was granted bail. One of the bail conditions was she had to pay cash bail in the sum of $40,000.", "zh-HK": "結果上訴人被控一項入屋犯法罪，並最終被安排在2015年5月13日在區域法院接受審訊。審訊前，上訴人獲保釋而保釋條件之一是她要支付4萬元現金保釋金。" } }, { "doc_id": 83, "seg_id": 5, "translation": { "en": "The appellant did not show up for trial on 13 May 2015 as scheduled. But both the counsel and the solicitor the Legal Aid Department assigned to represent her attended court.", "zh-HK": "2015年5月13日，上訴人沒有依期出庭應訊，但法援署委派代表她的律師和大律師都有出席。" } }, { "doc_id": 83, "seg_id": 6, "translation": { "en": "The trial judge, Deputy District Court Judge Marco Li, ordered a warrant of arrest be issued for the arrest of the appellant after hearing the submission of the counsel representing her.", "zh-HK": "處理案件的區域法院暫委法官李國威（主審法官）聆聽完上訴人代表大律師的陳述後，頒下拘捕令緝拿上訴人歸案。" } }, { "doc_id": 83, "seg_id": 7, "translation": { "en": "In the afternoon of the following day, that was 14 May 2015, the appellant surrendered herself to court. She explained to the court that she was unable to attend court at the time as had been appointed because she had to go to the Accident and Emergency Unit of the Kwong Wah Hospital to seek medical attention in the small hours of the trial day.", "zh-HK": "上訴人在翌日，即2015年5月14日下午向法庭歸案。上訴人向法庭表示審訊當天凌晨時分因要去廣華醫院急症室求診，故此未能依期出庭應訊。" } }, { "doc_id": 83, "seg_id": 8, "translation": { "en": "Counsel representing her produced to the court an attendance note from the Accident and Emergency Unit of Kwong Wah Hospital showing that the appellant was in the A&E Unit of the Hospital at 5:24am of 13 May 2015.", "zh-HK": "上訴人的代表大律師向法庭出示一張廣華醫院的急症應診紙，內容顯示上訴人在2015年5月13日凌晨5時24分身處廣華醫院的急症室。" } }, { "doc_id": 83, "seg_id": 9, "translation": { "en": "Counsel further informed the court that the appellant was hit on the head by a falling cabinet at home at 4am on 13 May 2015 which made her feel discomfort and nauseous. As a result, her friend accompanied her to go to Kwong Wah Hospital to seek treatment.", "zh-HK": "上訴人的代表大律師再向法庭表示，上訴人在2015年5月13日凌晨4時，在家中被一個倒下的櫃打到頭部，令她感到不舒服及有嘔吐現象。結果，她由朋友陪同前往廣華醫院求診。" } }, { "doc_id": 83, "seg_id": 10, "translation": { "en": "According to the appellant, as she had head injury and was nauseous, doctor of the A&E of the Hospital admitted her into a ward for observation and only allowed her to leave sometime after 4pm of the same day. She went on to say that as she had lost her identity card, she was not able to obtain the relevant medical report to support her story.", "zh-HK": "根據上訴人的說法，由於她頭部受傷，亦有嘔吐現象，廣華醫院急症室的醫生將她收入病房觀察直至同日下午4時多才批准她離開。上訴人續稱因為失去了身份證，故未能取得有關醫療報告支持她的說法。" } }, { "doc_id": 83, "seg_id": 11, "translation": { "en": "She said she did not to go a police station to surrender herself as she was legally advised to because after she had left the Hospital, she had to go back home to look after her two children and also she still felt discomfort. However, she had already arrived at the court on the following day before the court sat. She urged the court to accept that she had no intention to abscond.", "zh-HK": "上訴人亦表示離開醫院後，要返回家中照顧兩名子女及因為仍然感到不舒服，故沒有按律師的指示去警署自首，但她在翌日開庭前已到法庭應訊。上訴人力稱自己無意棄保。" } }, { "doc_id": 83, "seg_id": 12, "translation": { "en": "The trial judge clearly had doubt about her claim that she had lost her identity card but yet could still receive treatment in Kwong Wah Hospital. He pointed out that before treatment was given, patients had to pay a fee first, and for patients who were non-Hong Kong residents, the fee required was much higher. Counsel for the appellant immediately explained to the trial judge that she only lost her identity card during her hospitalization.", "zh-HK": "主審法官明顯對上訴人聲稱她失去身份證但仍然能在廣華醫院接受治療的說法存疑。主審法官指出接受治療前，病人需先付費；而非香港居民的病人，則更要支付昂貴的費用。上訴人的代表大律師隨即向主審法官解釋上訴人是在留院期間才失去身份證的。" } }, { "doc_id": 83, "seg_id": 13, "translation": { "en": "The trial judge did not accept the appellant’s explanation. He pointed out that the attendance note that the appellant submitted only showed that she had been to the A&E Unit at 5:24am on 13 May 2015 and her condition was assessed as semi-urgent. But she did not have any evidence to show that she had to stay in the Hospital and therefore could not attend court at the time as had been appointed for trial as a result.", "zh-HK": "主審法官不接納上訴人的解釋。他指出上訴人呈交的應診紙只顯示上訴人在2015年5月13日早上5時24分到過急症室，而其狀況被評為次緊急，但上訴人沒有任何證據，顯示她要留在醫院而導致她不能依時出庭應審。" } }, { "doc_id": 83, "seg_id": 14, "translation": { "en": "The trial judge further said that he found it even harder to accept her claim that she only lost her identity card during hospitalization and therefore could not obtain a medical report.", "zh-HK": "主審法官表示他更不能接受上訴人是在留院期間才失去身份證，令她未能取得醫療報告的說法。" } }, { "doc_id": 83, "seg_id": 15, "translation": { "en": "The trial judge took the view that the appellant had failed to show reasonable cause for not attending court at the time as had been appointed and ordered that her bail be revoked and the $40,000 bail money be confiscated in full (“the confiscation order”). The confiscation order was made pursuant to section 9M(1)(b) of the Criminal Procedure Ordinance (“the Ordinance”).", "zh-HK": "主審法官認為上訴人沒有合理理由解釋她不能依時出庭，並因此決定撤銷上訴人的擔保，及將其4萬元保釋金全部充公（“充公令”）。“充公令”應是根據《刑事訴訟程序條例》（“《該條例》”）第9M(1)(b)條作出的。" } }, { "doc_id": 83, "seg_id": 16, "translation": { "en": "On 11 June 2015, the appellant pleaded guilty to burglary before another Deputy District Court Judge and was sentenced to 22 months’ imprisonment. Aggrieved with the sentence, she applied for leave to appeal against sentence. On 30 November 2015, she informed the court that she abandoned the said application for leave to appeal against sentence and the application was dismissed.", "zh-HK": "2015年6月11日，上訴人在另一名區域法院暫委法官席前承認入屋犯法罪後被判入獄22個月。上訴人不服判刑，曾提出上訴許可申請要求獲准就判刑上訴。2015年11月30日，上訴人知會法庭，取消該減刑上訴許可申請，而申請亦已被撤銷。" } }, { "doc_id": 83, "seg_id": 17, "translation": { "en": "Aggrieved by the confiscation order, the appellant took out a notice to apply to the Court of Appeal to appeal out of time against it. On 16 December 2015, a single judge of the Court of Appeal allowed her application to appeal out of time against the confiscation order. On 19 February 2016, the appellant applied further to the court to treat her abandonment to appeal against sentence filed on 30 November 2015 as a nullity so that she could re-commence proceedings to appeal against the sentence.", "zh-HK": "但上訴人不服“充公令”，並在2015年6月23日，提出逾期上訴許可通知書，要求上訴法庭推翻“充公令”。2015年12月16日，上訴法庭單一法官批准上訴人就“充公令”提出逾期上訴。2016年2月19日，上訴人再提出申請，要求法庭視她在2015年11月30日存擋的放棄減刑上訴申請的通知書無效，以便她能重新就有關判刑提出上訴。" } }, { "doc_id": 83, "seg_id": 18, "translation": { "en": "The appellant was represented by Mr Wong Hay Yiu of counsel in her appeal against the confiscation order and was acting in person in the application to treat the notice of abandonment as a nullity.", "zh-HK": "就針對“充公令”的上訴，上訴人由王熙曜大律師代表。就要求法庭視她放棄減刑上訴通知書無效的申請，上訴人沒有律師代表，親自行事。" } }, { "doc_id": 83, "seg_id": 19, "translation": { "en": "Application to treat the notice of abandonment as a nullity", "zh-HK": "視放棄上訴通知書無效的申請" } }, { "doc_id": 83, "seg_id": 20, "translation": { "en": "When a defendant who has been sentenced clearly indicates that he will abandon an application to appeal against sentence and the application is dismissed as a result, unless he can prove that when he abandoned the appeal, he did not know the nature of the notice of abandonment and the consequences that come with his signing of the notice, he has no right to bring it up again to ask the court to deal with his application afresh. (see HKSAR v Law Kam Fai and another [2006] 2 HKLRD 879, HKSAR v Ip Wai Ho, Micky [2015] 5 HKLRD 567, HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1, HKSAR v Luo Shui Ji [2007] 3 HKLRD 114). That a defendant changes his mind after abandoning an application to appeal against sentence is not a ground in support of an application to treat the notice of abandonment as a nullity.", "zh-HK": "當一名被判刑的被告人表明會放棄減刑申請，導致申請被撤銷後，他無權重提舊事，要求法庭重新處理其申請，除非他能證明他放棄申請時，不知悉其簽署的放棄上訴通知書的性質及他簽署該通知書會導致的後果。（見HKSAR v Law Kam Fai and another [2006] 2 HKLRD 879、HKSAR v Ip Wai Ho, Micky [2015] 5 HKLRD 567、HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1、香港特別行政區訴羅水基 [2007] 3 HKLRD 114等案）。被告人放棄減刑申請後，改變主意並不構成視放棄上訴通知書無效的理由。" } }, { "doc_id": 83, "seg_id": 21, "translation": { "en": "The appellant stated clearly in the Notice to Abandon an Application for Leave to Appeal filed on 30 November 2015:", "zh-HK": "上訴人在2015年11月30日存檔的放棄上訴許可申請的通知書內表明：" } }, { "doc_id": 83, "seg_id": 22, "translation": { "en": "“I, Chan Yuen Yee Carrie, 303400, decide to cancel the appeal (against sentence) after careful consideration.”", "zh-HK": "“本人陳婉兒303400考慮清楚後，決定取消上訴（減刑）。”" } }, { "doc_id": 83, "seg_id": 23, "translation": { "en": "In her application to the court to treat her notice of abandonment as a nullity on 19 February 2016, she merely stated:", "zh-HK": "上訴人在2016年2月19日要求法庭視她的放棄上訴許可通知書無效時，只是說：" } }, { "doc_id": 83, "seg_id": 24, "translation": { "en": "“Because I have new ground now so I apply to the court afresh to appeal (against sentence).”", "zh-HK": "“因為現在我有新理據所以重新向法官大人申請上訴（減刑）。”" } }, { "doc_id": 83, "seg_id": 25, "translation": { "en": "The appellant did not say that when she signed the notice of abandonment, she did not know the nature of the notice and the consequences that her signing on it would lead to. She decided to abandon the appeal only after careful consideration. That she claimed she had new ground to show that the sentence was excessive is not a reason to support her application to treat her abandonment as a nullity. There is no basis for this court to treat the notice she signed to abandon the application for leave to appeal against sentence as a nullity. Her application to ask the court to treat the said notice as a nullity is dismissed. This court needs only consider her application to appeal against the confiscation order.", "zh-HK": "上訴人並沒有指她簽署放棄上訴通知書時，不知悉該通知書的性質及她簽署該通知書會導致的後果。上訴人是經考慮清楚後，才決定放棄申請。上訴人指她有新理據顯示其判刑過重，亦非支持視其放棄上訴通知書無效的理由。本庭沒有基礎視上訴人已簽署的放棄減刑上訴申請的通知書無效。上訴人要求法庭視該通知書無效的申請須駁回。本庭只需考慮上訴人針對“充公令”的上訴。" } }, { "doc_id": 83, "seg_id": 26, "translation": { "en": "The appeal against the confiscation order", "zh-HK": "針對“充公令”的上訴" } }, { "doc_id": 83, "seg_id": 27, "translation": { "en": "In order to strengthen her appeal, the appellant requested that this court should admit some medical reports as new evidence.", "zh-HK": "為了強化其上訴，上訴人要求本庭採納一些醫療報告為新證據。" } }, { "doc_id": 83, "seg_id": 28, "translation": { "en": "She maintained that she was admitted to the Hospital on 13 May 2015 because she was ill and therefore was unable to attend court for trial at the time as had been appointed. The new evidence that she produced proved that she had to stay in the Hospital for observation on 13 May 2015 until 3pm due to head injuries. She later returned to the Hospital where she stayed in the observation ward until 6:45pm the same day.", "zh-HK": "上訴人堅稱她在2015年5月13日是因病入院，故不能依期出席審訊。她提出的新證據證明她在2015年5月13日因頭部受傷而要留院觀察至同日下午3時。其後她再返回醫院，並在觀察病房逗留至同日下午6時45分。" } }, { "doc_id": 83, "seg_id": 29, "translation": { "en": "According to section 9M(1) of the Ordinance, if a person who had been admitted to bail fails, without reasonable cause, to surrender to custody as shall have been appointed by a court, a court may order that the whole or part of the bail money be forfeited to the Government.", "zh-HK": "根據《該條例》第9M(1)條，一名獲准保釋的被告人如無合理因由而沒有按照法庭的指定歸押，法庭可以充公其全部或部分保釋金。" } }, { "doc_id": 83, "seg_id": 30, "translation": { "en": "According to the Ordinance, a court does not necessarily have to forfeit the bail money of a defendant who fails to surrender to custody as shall have been appointed. The court has the discretion to decide whether or not to forfeit the bail money and the amount to be forfeited should a forfeiture order be made.", "zh-HK": "根據《該條例》，法庭不一定要充公一名沒有依時歸押的被告人的保釋金。法庭有酌情權決定是否下令充公保釋金及如要充公保釋金時，要充公多少。" } }, { "doc_id": 83, "seg_id": 31, "translation": { "en": "During the trial, the appellant failed to produce a medical report and further claimed that the failure to obtain a medical report was because she had lost her identity card. This claim was not very credible. This court can understand why the trial judge did not accept her explanation but he should have given her the chance to prove her claim before deciding whether or not to forfeit her bail money.", "zh-HK": "原審時，上訴人未能出示醫療報告，並聲稱因為失去身份證故未能取得醫療報告的說法不太合信。主審法官不接納上訴人的解釋，本庭可以理解，但主審法官應該給予上訴人機會去證明她的說法才決定是否充公她的保釋金。" } }, { "doc_id": 83, "seg_id": 32, "translation": { "en": "The undisputed evidence showed that the appellant did go to Kwong Wah Hospital to seek medical attention on 13 May 2015. In view of the congested situation of the A&E Unit and the symptoms the appellant claimed she had, it is highly likely that her claim that the doctor kept her in a ward for observation until the afternoon is true. If she was determined to abscond, she would not have surrendered herself to court on the following day. As a matter of fact, the new evidence the appellant submitted showed proved that she indeed had to stay in the Hospital for observation which made her unable to attend court in the morning of 13 May 2015 for the hearing.", "zh-HK": "無爭議的證據顯示，上訴人確有在2015年5月13日前往廣華醫院求診，而考慮到醫院急症室擠擁的情況及其聲稱的病徵，她被醫生要求留在病房觀察至下午的說法極可能是真的。如上訴人決意棄保潛逃，她理應不會在翌日便向法庭歸押。事實上，上訴人提出的新證據證明她確要留院接受觀察，令她不能在2015年5月13日早上出庭應訊。" } }, { "doc_id": 83, "seg_id": 33, "translation": { "en": "We cannot overlook the fact that as far as the background of the appellant is concerned, $40,000 is a considerable amount of money, and the forfeiture of that sum of money may cause great hardship to both the appellant and her family.", "zh-HK": "本庭不能忽視以上訴人的背景而言，4萬元是一筆數目不少的款額，而充公該筆款額對上訴人及其家庭都可能會造成極大的困苦。" } }, { "doc_id": 83, "seg_id": 34, "translation": { "en": "The court cannot forfeit a huge sum of a defendant’s bail money lightly. As far as the background of the present case is concerned, the trial judge should at least have checked the veracity of the appellant’s claim and given her the chance to prove if the explanation she gave on why she was unable to attend court at the time as had been appointed was true or not.", "zh-HK": "法庭不能輕率地充公一名被告人的巨額保釋金。以本案的背景而言，主審法官最少要就上訴人的說法查證及給予她機會證明她未能準時出庭的解釋是否屬實。" } }, { "doc_id": 83, "seg_id": 35, "translation": { "en": "Even if it was revealed after checking that the explanation she gave was not true, in so far as the background of this case is concerned, the court did not necessarily have to forfeit the $40,000 bail money in full. In fact, the new evidence the appellant produced proved that her explanation was true. In our view, the confiscation order the trial judge made was inappropriate and without fair process. It should be set aside. Ms Catherine Ko, Acting Senior Assistant Director of Public Prosecutions, acting for the respondent, shared our view in this regard.", "zh-HK": "即使經查核後，確證上訴人的解釋並非真確，以本案的背景而言，法庭亦不一定需要充公上訴人全數保釋金4萬元。事實上，上訴人提供的新證據證明她的解釋是真確的。本庭認為原審法官作出的“充公令”是不恰當的，過程亦是不公平的，理應取消。對此，代表答辯人的署理高級助理刑事檢控專員高寶翠表示認同。" } }, { "doc_id": 83, "seg_id": 36, "translation": { "en": "But the court must resolve the question of whether we have the jurisdiction to deal with appeals against confiscation orders first.", "zh-HK": "但法庭必先要解決的問題是本庭是否有司法管轄權處理針對“充公令”的上訴。" } }, { "doc_id": 83, "seg_id": 37, "translation": { "en": "Mr Wong, counsel for the appellant, pointed out that there has been much dispute regarding whether the confiscation of bail money is a civil or criminal cause or matter. Mr Wong agreed that in R v Southampton Justices, Ex Parte Green [1976] Q.B. 11, when considering the question of whether the forfeiture of bail money was a “criminal cause or matter” within the meaning of the statutory provisions, the English Court of Appeal had reservation. It took the view that the nature of a recognizance was a bond, and failure to perform the bond would only lead to a civil debt. Therefore, the English Court of Appeal directed that from then on, all appeals regarding forfeiture of bail money should be heard by the Court of Appeal in the exercise of its civil jurisdiction. However, Mr Wong pointed out at the same time that the decision of Ex Parte Green (supra) had been challenged in a number of other cases.", "zh-HK": "代表上訴人的王大律師指出充公保釋金是屬於民事或刑事的性質或事宜有多番爭議。王大律師同意在R v Southampton Justices, Ex Parte Green [1976] Q.B. 11案，英國的上訴法庭在考慮充公保釋金是否屬條例所指的“criminal cause or matter”（刑事性質或事宜）時有所保留，並認為自簽保釋（recognizance）的性質屬法律協定（bond），而未能履行該協定只會導致民事債務（civil debt）。因此，英國上訴法庭指示日後有關充公保釋金上訴應該由上訴法庭行使民事司法管轄權審理。但王大律師同時指出上述Ex Parte Green案的判決在其他多宗案件遭受質疑。" } }, { "doc_id": 83, "seg_id": 38, "translation": { "en": "Mr Wong submitted that the test of whether a matter was a criminal cause or matter should lie in the fact of whether the proceedings behind it were criminal or non-criminal. He pointed out that the Court of Appeal referred to Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147 in AG v Alick, Au Shui Yuen [1992] 1 HKLR 88 and held that if a person had the chance of being found guilty or sentenced in the end, it was clearly a criminal proceeding, even if the order being challenged was per se not clearly a criminal order. Mr Wong urged this court to accept that the confiscation order was ancillary to the appellant pleading guilty to the offence of burglary; therefore, the confiscation order was a criminal cause or matter.", "zh-HK": "王大律師認為測試某事項是否屬刑事性質或事宜，準則應是以背後程序究竟是刑事或非刑事。他指出上訴法庭在AG v Alick, Au Shui Yuen [1992] 1 HKLR 88案有援引Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147案，並裁定若然一名人士最後是有機會被判罪或判罰，這個程序明顯是刑事，即使受到質疑的命令本身並非明顯是刑事命令。王大律師力稱“充公令”附屬於上訴人承認的入屋犯法罪，因此“充公令”本身亦屬刑事性質或事宜。" } }, { "doc_id": 83, "seg_id": 39, "translation": { "en": "Mr Wong stressed that a number of decided cases adopted the above criterion, and when dealing with the relevant question, the court should adopt an approach that is both flexible and reasonable.", "zh-HK": "王大律師強調有多宗案例採納上述測試準則，而處理有關議題時，法庭應採取彈性及俱常理的方法。" } }, { "doc_id": 83, "seg_id": 40, "translation": { "en": "But Mr Wong at the same time accepted that even if confiscation of bail money was a criminal cause or matter, this did not mean that the Court of Appeal had jurisdiction over appeals against confiscation of bail money for the reason that the criminal jurisdiction of the Court of Appeal came from the High Court Ordinance, and the Court of Appeal had to deal with appeals from the Court of First Instance or the District Court according to Part IV of the Ordinance. Mr Wong submitted that according to the relevant Ordinance, the Court of Appeal had criminal jurisdiction to deal with appeals against confiscation of bail money.", "zh-HK": "但王大律師同時承認即使充公保釋金屬於刑事性質或事宜，這不代表上訴法庭就充公保釋金的上訴有司法管轄權，原因是上訴法庭的刑事司法管轄權源自《高等法院條例》，而上訴法庭要根據《該條例》第IV部處理源自原訟法庭或區域法院的上訴。王大律師認為根據有關條例，上訴法庭是有刑事司法管轄權處理針對充公保釋金的上訴。" } }, { "doc_id": 83, "seg_id": 41, "translation": { "en": "He cited HKSAR v Chai Man Fong CACC 433/1997 to support his argument. In that case, the Court of Appeal held that the defendant had the right to appeal against a forfeiture order made pursuant to section 102 of the Ordinance although the property subject to the order had nothing to do with the conviction entered against the defendant. Mr Wong stressed that even if no one was found guilty of any offence, the court could still make a forfeiture order pursuant to section 102 of the Ordinance and the Court of Appeal also held that in the aforesaid situation, the Court of Appeal had jurisdiction to deal with appeals against forfeiture orders.", "zh-HK": "王大律師援引HKSAR v Chai Man Fong CACC 433/1997案支持他的立場。在該案，上訴法庭裁定被告人有權就《該條例》第102條作出的充公財產令上訴，雖然有關的財產和被告人被定的控罪無關。王大律師強調，即使無人被判任何控罪罪名成立，法庭仍然可以根據《該條例》第102條作出充公財產令，而上訴法庭亦裁定在上述情況下，上訴法庭有司法管轄權處理針對充公財產令的上訴。" } }, { "doc_id": 83, "seg_id": 42, "translation": { "en": "Mr Wong submitted that the “sentence” referred to in section 80 of the Ordinance covered any order that a court made when dealing with an offender; therefore, a confiscation order is a form of “sentence”.", "zh-HK": "王大律師指出《該條例》第80條所指的刑罰，包括法庭處理罪犯時作出的任何命令，因此“充公令”是“刑罰”的一種。" } }, { "doc_id": 83, "seg_id": 43, "translation": { "en": "He stressed that the present case did not involve bail money paid by a surety to guarantee that the defendant would attend court at the time as had been appointed. Rather, it was bail money the defendant paid. Mr Wong took the view that the two were different. That seeking to recover the former was a civil cause did not mean that the defendant’s application for the return of the bail money was also a civil cause.", "zh-HK": "王大律師強調本案並非涉及擔保人擔保被告人依時出庭所支付的擔保金，而是被告人支付的保釋金。王大律師認為兩者不同，而追討前者屬民事性質，不表示被告人要求取回保釋金的上訴亦屬民事性質。" } }, { "doc_id": 83, "seg_id": 44, "translation": { "en": "Position of the respondent", "zh-HK": "答辯人的立場" } }, { "doc_id": 83, "seg_id": 45, "translation": { "en": "Ms Ko acting for the respondent referred the court to several cases, including R v Eng Bouy CACC 438/1986, Ex Parte Green (supra), Wan Shui Ying & another v AG CACV 145/1989, to support her position that proceedings to confiscate bail money should be regarded as a civil and not a criminal cause or matter. She, however, at the same time accepted that it was not the case that she did not have reservation regarding the above position.", "zh-HK": "代表答辯人的高專員提出數宗案例，包括R v Eng Bouy CACC 438/1986、Ex Parte Green (supra)、Wan Shui Ying & another v AG CACV 145/1989等案支持她的立場，即充公保釋金程序應視為民事而非刑事性質或事宜。但高專員同時承認對上述立場並非沒有保留。" } }, { "doc_id": 83, "seg_id": 46, "translation": { "en": "In any event, Ms Ko submitted that the Court of Appeal only had jurisdiction to deal with a “sentence” imposed on a defendant convicted of an offence. Ms Ko pointed out that since the confiscation order was made pursuant to section 9M of the Ordinance, it showed that the appellant’s failure to surrender to custody as have been appointed by the court bore no direct relationship with the offence of burglary that she later pleaded guilty to. Further, the confiscation order was not the sentence imposed on her for the burglary but the punishment she had to face for breaching the undertaking to show up for trial at the time as had been appointed. Ms Ko stressed that even if the charge of burglary the appellant was being prosecuted for was dropped at that time, the confiscation order was still valid. Therefore, the confiscation order could not be within the scope of the “sentence” referred to in section 80 of the Ordinance.", "zh-HK": "無論如何，高專員認為上訴法庭只有司法管轄權處理針對一名被定罪的被告人而作出的“刑罰”。高專員指出“充公令”是根據《該條例》第9M條作出，反映上訴人沒有按法庭的指定歸押，和她事後承認的入屋犯法罪沒有直接關係。“充公令”更並非是上訴人因入屋犯法罪而被判處的“刑罰”，而是上訴人違反承諾，沒有依期應審而要面對的懲罰。高專員強調即使上訴人當時被控的入屋犯法罪被撤銷，“充公令”仍屬有效，因此“充公令”不能納入《該條例》第80條所指的“刑罰”。" } }, { "doc_id": 83, "seg_id": 47, "translation": { "en": "Ms Ko also pointed out that even though rejecting the application for costs made by a person acquitted of a charge was part and parcel of criminal proceedings and inseparable from the trial in question, the Court of Appeal still held in R v Wong Hing Yuk [1989] 1 HKLR 251 that the Court of Appeal did not have the jurisdiction to deal with an appeal against a costs order for the reason that the said costs order was not made on the basis of a conviction entered against the defendant. Ms Ko pointed out that the aforesaid point of view was approved in R v Hayden [1975] 2 All ER 558.", "zh-HK": "高專員亦指出即使否決一名被判無罪的人提出的訟費申請屬刑事程序不可或缺的一部份，亦是和有關審訊密不可分，上訴法庭在R v Wong Hing Yuk [1989] 1 HKLR 251案仍裁定上訴法庭沒有司法管轄權處理針對訟費判令的上訴，原因是該訟費判令並非建基在上訴人有被定罪。高專員指出上述觀點在R v Hayden [1975] 2 ALL ER 558案獲認同。" } }, { "doc_id": 83, "seg_id": 48, "translation": { "en": "Ms Ko agreed that the confiscation order was not reasonable and should not have been made. If the appellant could follow the proper procedure to apply for the return of the $40,000 bail money, the respondent (that is, the prosecution) not only would not oppose, it would even try its best to cooperate.", "zh-HK": "高專員同意“充公令”不合理亦不應作出，而如上訴人能循恰當程序要求取回4萬元保釋金，答辯人（即控方）不但不會反對，更會盡量配合。" } }, { "doc_id": 83, "seg_id": 49, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 83, "seg_id": 50, "translation": { "en": "The Court of Appeal made clear in Eng Bouy and Wan Shui Ying & another (supra) that decisions to confiscate the bail money of a surety was a civil matter and matters relating to confiscating the bail money of a surety should be proceeded with in the form of civil proceedings. However, none of the appellants in those cases were defendants in criminal cases. Those appellants only paid the bail money in the capacity of a surety to guarantee that the defendants in the criminal cases in question would attend court for their trials at the time as had been appointed. In the end, the defendants absconded and the bail money the sureties had paid was confiscated as a result.", "zh-HK": "在上述Eng Bouy和Wan Shui Ying & another案，上訴法庭表明充公擔保人保釋金的裁決，屬民事訴訟事宜，而和充公擔保人保釋金有關的事項應以民事訴訟方式進行。但上述案件的上訴人都不是刑事案件的被告人。該些上訴人只是以擔保人的身份支付保釋金，擔保有關刑事案件的被告人會依時出庭應審。結果，因為被告人棄保潛逃，導致擔保人支付的保釋金被充公。" } }, { "doc_id": 83, "seg_id": 51, "translation": { "en": "When a surety pays bail money to guarantee that a defendant will attend court for his trial, the surety does so to the court in the form of a bond. If the defendant fails to attend court for trial, it means that the surety has not performed the undertaking in the bond. In such a situation, it is not difficult to understand why the court held that the proceedings to confiscate the bail money the surety had paid were a civil cause or matter.", "zh-HK": "當一名擔保人為擔保被告人出庭應審，而支付保釋金，擔保人是向法庭以法律協定(bond)形式擔保被告人會出庭應審。如被告人沒有出庭應審，則表示擔保人沒有履行其法律協定的承諾。在上述情況，裁定充公擔保人保釋金的程序屬民事性質或事宜不難理解。" } }, { "doc_id": 83, "seg_id": 52, "translation": { "en": "However, the proceedings involved in the present case are the District Judge making an order to confiscate the bail money that the defendant had paid as she failed to turn up for her trial at the time that had been appointed. The confiscation order was part and parcel of the criminal prosecution made against the appellant and inseparable from the offence she was charged with. In our view, the confiscation order should be a criminal cause or matter.", "zh-HK": "但本案涉及的程序是區域法院法官以被告人沒有依時應審而充公她支付的保釋金。“充公令”是上訴人被刑事檢控不可或缺的一部份，亦是和上訴人被控罪行密不可分。因此本庭認為“充公令”應屬刑事性質或事宜。" } }, { "doc_id": 83, "seg_id": 53, "translation": { "en": "However, in our view, whether or not a confiscation order is a criminal or civil cause or matter has nothing to do with the question that arises in this appeal for the reason that this question only bears on the judgments or orders of the Court of First Instance (see section 13(3)(aa) of the High Court Ordinance). But this appeal was not from the Court of First Instance; it was from the District Court.", "zh-HK": "但本庭認為“充公令”是否屬刑事或民事性質或事宜和本上訴引發的議題無關，原因是該議題只影響一些源自原訟法庭的判決或命令（見《高等法院條例》第13(3)(aa)條），但本上訴並非源自原訟法庭，而是源自區域法院。" } }, { "doc_id": 83, "seg_id": 54, "translation": { "en": "The Court of Appeal is established by statute and does not possess any inherent power. The jurisdiction of the Court of Appeal must come from the relevant statutory provisions which include the High Court Ordinance and/or the Ordinance. Section 13(3) of the High Court Ordinance provides:", "zh-HK": "上訴法庭是法定權力機構，不具任何固有權力。上訴法庭的管轄權力必須建基在有關條例，而有關條例包括《高等法院條例》及/或《該條例》。《高等法院條例》第13(3)條列出：" } }, { "doc_id": 83, "seg_id": 55, "translation": { "en": "The criminal jurisdiction of the Court of Appeal shall consist of-", "zh-HK": "“上訴法庭的刑事司法管轄權由以下各方面組成─" } }, { "doc_id": 83, "seg_id": 56, "translation": { "en": "(a)appeals from the Court of First Instance or District Court under Part IV of the Criminal Procedure Ordinance (Cap 221);", "zh-HK": "(a)根據《刑事訴訟程序條例》(第221章)第IV部來自原訟法庭或區域法院的上訴；" } }, { "doc_id": 83, "seg_id": 57, "translation": { "en": "(aa)appeals from a judgment or order of the Court of First Instance given or made in the exercise of the powers conferred on it under section 21I(1) and relating to a criminal cause or matter;", "zh-HK": "(aa)來自原訟法庭在行使根據第21I(1)條賦予原訟法庭的權力時作出的關於刑事訟案或事宜的判決或命令的上訴；" } }, { "doc_id": 83, "seg_id": 58, "translation": { "en": "(b)the consideration of questions of law reserved under section 81(1) of the Criminal Procedure Ordinance (Cap 221);", "zh-HK": "(b)對根據《刑事訴訟程序條例》(第221章)第81(1)條保留以待上訴法庭考慮的法律問題的考慮；" } }, { "doc_id": 83, "seg_id": 59, "translation": { "en": "(c)the consideration of-", "zh-HK": "(c)對以下各項的考慮─" } }, { "doc_id": 83, "seg_id": 60, "translation": { "en": "applications by the Secretary for Justice for the review of any sentence under section 81A(1) of the Criminal Procedure Ordinance (Cap 221);", "zh-HK": "(i)律政司司長根據《刑事訴訟程序條例》(第221章)第81A(1)條提出的對任何判刑的覆核申請；" } }, { "doc_id": 83, "seg_id": 61, "translation": { "en": "references by the Secretary for Justice of questions of law under section 81D of the Criminal Procedure Ordinance (Cap 221);", "zh-HK": "(ii)律政司司長根據《刑事訴訟程序條例》(第221章)第81D條轉交的法律問題；" } }, { "doc_id": 83, "seg_id": 62, "translation": { "en": "(d)appeals by way of case stated from the District Court under section 84 of the District Court Ordinance (Cap 336); and", "zh-HK": "(d)根據《區域法院條例》(第336章)第84條來自區域法院的以案件呈述方式提出的上訴；及" } }, { "doc_id": 83, "seg_id": 63, "translation": { "en": "(e)any other jurisdiction conferred on it by any law.", "zh-HK": "(e)任何其他由法律賦予上訴法庭的司法管轄權。”" } }, { "doc_id": 83, "seg_id": 64, "translation": { "en": "Part IV of the Ordinance covers provisions that deal with appeals, questions of law reserved and referred and review. Section 83G provides:", "zh-HK": "《該條例》第IV部涵蓋和上訴、保留和轉交的法律問題和覆核有關的條例。第83G條列明：" } }, { "doc_id": 83, "seg_id": 65, "translation": { "en": "“A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings.”", "zh-HK": "“任何人如循公訴程序就某罪行被定罪，可針對他就該罪行而被判處的任何刑罰(並非法律所固定的刑罰)向上訴法庭提出上訴，不論該刑罰是他被定罪時所判處或是在繼後的法律程序中所判處的。”" } }, { "doc_id": 83, "seg_id": 66, "translation": { "en": "And section 80 of the Ordinance defines “sentence” as “any order made by a court when dealing with an offender”.", "zh-HK": "第80條將“刑罰”釋義為“法庭處置罪犯時作出的任何命令”。" } }, { "doc_id": 83, "seg_id": 67, "translation": { "en": "The confiscation order was made because the appellant failed to attend court for trial at the time as had been appointed. This bore no direct relationship with the burglary offence that she was charged with and was not a sentence imposed on the appellant for that offence. Nor was it an order the court made when dealing with her for the burglary that she had committed.", "zh-HK": "“充公令”是因為上訴人沒有依時出庭應審而作出，和她被控的入屋犯法罪無直接關係，並非上訴人就該罪行而被判處的刑罰，亦非法庭因上訴人是犯了入屋犯法罪處置她時作出的命令。" } }, { "doc_id": 83, "seg_id": 68, "translation": { "en": "The confiscation order fails to meet the stipulations in respect of an appeal against sentence referred to in section 83C of the Ordinance.", "zh-HK": "“充公令”不符合《該條例》第83G條所指針對“刑罰”的上訴。" } }, { "doc_id": 83, "seg_id": 69, "translation": { "en": "Section 83I(3) of the Ordinance provides:", "zh-HK": "《該條例》第83I(3)條列出：" } }, { "doc_id": 83, "seg_id": 70, "translation": { "en": "“On an appeal against sentence the Court of Appeal, if it considers that the appellant should be sentenced differently for an offence for which he was dealt with by the court below, may-", "zh-HK": "“在針對刑罰的上訴中，上訴法庭如認為應對下級法庭就某罪行所處置的上訴人，就該罪行判處不同的刑罰，則可—" } }, { "doc_id": 83, "seg_id": 71, "translation": { "en": "(a)quash any sentence or order which is the subject of the appeal; and", "zh-HK": "撤銷是上訴標的之任何刑罰或命令；及" } }, { "doc_id": 83, "seg_id": 72, "translation": { "en": "(b)in place of it pass such sentence… as it thinks appropriate for the case…”", "zh-HK": "改為判處上訴法庭認為適合該案件的刑罰…。”" } }, { "doc_id": 83, "seg_id": 73, "translation": { "en": "We have considered the question of whether the confiscation order was a sentence imposed on the appellant for “an offence for which (s)he was dealt with by the court” as required by section 83I(3) of the Ordinance. In considering the question, we bear in mind that a person already commits a criminal offence if he fails to surrender to custody as shall have been appointed by a court. Section 9L of the Ordinance provides:", "zh-HK": "本庭曾考慮“充公令”是否符合《該條例》第83I(3)條所指的“法庭就某罪行所處置的上訴人”。在考慮該議題時，本庭緊記“沒有按照法庭的指定歸押本身已是一項刑事罪行”。《該條例》第9L列明：" } }, { "doc_id": 83, "seg_id": 74, "translation": { "en": "“(1)A person admitted to bail who, without reasonable cause, fails to surrender to custody as shall have been appointed by a court, commits an offence.", "zh-HK": "“(1)獲准保釋的人如無合理因由而沒有按照法庭的指定歸押，即屬犯罪。" } }, { "doc_id": 83, "seg_id": 75, "translation": { "en": "(2)A person admitted to bail who, having reasonable cause therefor, has failed to surrender to custody at such time as shall have been appointed by a court, fails to so surrender as soon after that time as is reasonably practicable, commits an offence.”", "zh-HK": "(2)獲准保釋的人如有合理因由而沒有按法庭的指定時間歸押，但沒有在該時間後在合理可行的範圍內盡快歸押，即屬犯罪。”" } }, { "doc_id": 83, "seg_id": 76, "translation": { "en": "We cannot overlook the fact that section 83I of the Ordinance is only “supplemental provisions as to appeal against sentence” appended to section 83G of the Ordinance. “An offence” referred to in section 83I(3) of the Ordinance does not refer generally to any offence but the offence for which the defendant had been convicted for as referred to in section 83G of the Ordinance.", "zh-HK": "但本庭不能忽視《該條例》第83I條只是“關於針對刑罰的上訴的補充條文”，附帶於《該條例》第83G條。《該條例》第83I(3)條所指的“某罪行”並非泛指任何罪行，而是《該條例》第83G條所指被告人循公訴程序被定罪的罪行。" } }, { "doc_id": 83, "seg_id": 77, "translation": { "en": "We have also carefully analyzed the case of Chai Man Fong that Mr Wong had submitted. In that case, the court only ordered that the properties found on the person of the appellant be confiscated after he had pleaded guilty to a number of offences. The said confiscation order was one of the orders the court made when dealing with him after he had been convicted of the offences and therefore met the requirement of sections 80 and 83G of the Ordinance.", "zh-HK": "本庭亦有小心分析王大律師援引的Chai Man Fong案，該案的上訴人是承認了多項控罪後才被法庭下令他被捕後在他身上搜獲的財物要被充公。有關充公令是該名上訴人就罪行被定罪後，法庭在處置他時作出的命令之一，故符合《該條例》第80條和83G條的規定。" } }, { "doc_id": 83, "seg_id": 78, "translation": { "en": "Mr Wong stressed that the orders that section 102 of the Ordinance covered included those that were made in the absence of any defendant being convicted of any offence. The observation of Mr Wong is correct. But in the aforesaid scenario, neither is the confiscation order in question a “sentence” referred to in section 80 of the Ordinance nor can anyone aggrieved by the said confiscation order appeal against the said confiscation order pursuant to section 83G of the Ordinance unless the appeal satisfies the requirements set out in section 13(3)(aa) of the High Court Ordinance.", "zh-HK": "王大律師強調《該條例》第102條涵蓋的命令是可以在沒有任何被告人被定罪的情況下作出。王大律師的觀察是正確的，但假若上述情況出現，則有關的充公令並非《該條例》第80條所指的“刑罰”，而對該充公令不滿的人仕亦不能根據《該條例》第83G條針對該充公令提出上訴，除非該上訴符合《高等法院條例》第13(3)(aa)條的規定。" } }, { "doc_id": 83, "seg_id": 79, "translation": { "en": "We find that Chan Man Fong does not support the appellant’s arguments.", "zh-HK": "本庭認為Chai Man Fong案並不支持上訴人的論據。" } }, { "doc_id": 83, "seg_id": 80, "translation": { "en": "As a matter of fact, the question involved in the present appeal had been before the English Court of Appeal in R v Thayne [1970] 1 Q.B. 141. The appellant, charged with theft of a postal parcel, was released on bail on his own recognizance for £25. He failed to surrender to custody according to the bail conditions and was arrested. Upon being found guilty of the offence of theft, the judge sentenced him to 18 months of imprisonment and ordered that the £25 for which he entered into bail on his own recognizance be confiscated. He was to serve a consecutive term of 6 months’ imprisonment should he fail to pay the £25. After studying section 9 of the Criminal Appeal Act 1968, the English Court of Appeal held that it was bound by the provision when dealing with appeals against sentence. In other words, the Court could only deal with the sentence that was passed for the offence that the appellant was indicted for and convicted of. Since the order the judge made against the appellant for failing to surrender to custody according to the bail conditions was not a “sentence”, the Court of Appeal did not have jurisdiction to deal with the appeal against the said order. Lord Parker C.J. made the following comments in page 142 of the judgment:", "zh-HK": "事實上，本上訴所涉及的議題曾受英國上訴法庭在R v Thayne [1970] 1 Q.B. 141案審議。該案的上訴人被控盜竊郵包罪，並獲准自簽25英鎊保釋。他沒有按保釋條件歸押而被拘捕。他被裁定盜竊罪罪名成立後，被法官判刑18個月。法官同時充公該名上訴人自簽保釋金25英鎊，而如沒有支付該25英鎊，他要多服分期執行的6個月刑期。英國上訴法庭在審議過Criminal Appeal Act 1968第9條後，裁定上訴法庭在處理針對判刑的上訴時，其管轄權受制於該條文，即只能處理上訴人循公訴程序就某罪行被定罪後被判處的刑罰。由於法官因該名上訴人沒有按保釋條件歸押而作出的命令並非“刑罰”，上訴法庭不具司法管轄權處理針對該命令的上訴。Lord Parker C.J.在判案書第142頁有以下評論：" } }, { "doc_id": 83, "seg_id": 81, "translation": { "en": "“The order for six months’ imprisonment consecutive which was only in connection with the failure to surrender to bail, was not passed on him for any offence whatever. It is true that section 50(1) gives a very wide definition of sentence; it provides: ‘In this Act, “sentence”, in relation to an offence, includes any order made by a court when dealing with an offender…’ But wide as those words may be, once they are written into section 9 in place of the word ‘sentence’, the fact remains that the limiting words remain, namely, that the sentence must be passed or his for the offence. In those circumstances, odd as it may seem, this court has no jurisdiction whatever to interfere with that part of the recorder’s order.”", "zh-HK": "“6個月分期執行的監禁命令只是和沒有按保釋條件歸押有關，而並非就某罪行判處他的刑罰。無可否認，第50(1)條文施予‘刑罰’的釋義甚廣；它規定：‘“刑罰”，就罪行而言，包括法庭處置罪犯時作出的任何命令…’，但不論該些用詞如何廣泛，只要將該些用詞套用在第9條文內的‘刑罰’，具約束性的用詞仍然有效，即‘刑罰’必須是因某罪行被定罪而判處的‘刑罰’。在該情況下，雖然看來有些奇怪，上訴法庭不具司法管轄權干預法官所作的有關命令。”" } }, { "doc_id": 83, "seg_id": 82, "translation": { "en": "We should mention in passing that sections 9 and 50 of the English Criminal Appeal Act 1968 are basically the same as sections 83G and 80 of the Ordinance. Section 83I(3) of the Ordinance is also the same as section 11(3) of the English Criminal Appeal Act 1968.", "zh-HK": "應順帶一提的是，英國Criminal Appeal Act 1968第9條和第50條和《該條例》第83G條和第80條基本一樣。《該條例》第83I(3)條亦是和英國Criminal Appeal Act 1968第11(3)條相同。" } }, { "doc_id": 83, "seg_id": 83, "translation": { "en": "We concur with the decision in Thayne (supra). We do not have jurisdiction to deal with the appellant’s appeal to overturn the confiscation order. We therefore also have to dismiss her appeal against the confiscation order.", "zh-HK": "本庭認同上述Thayne案的判決。本庭不具司法管轄權處理上訴人要求推翻“充公令”的上訴。因此本庭亦要駁回上訴人針對“充公令”的上訴。" } }, { "doc_id": 83, "seg_id": 84, "translation": { "en": "Postscript", "zh-HK": "後記" } }, { "doc_id": 83, "seg_id": 85, "translation": { "en": "The circumstances of the present case are unusual. Both parties agreed that the trial judge was wrong to make the confiscation order and also that the process of making it was unfair. Acting for the respondent (the prosecution), Ms Ko even stated expressly that not only would the prosecution not oppose the application as long as the appellant followed the appropriate procedure to apply for setting aside of the confiscation order, it would even cooperate actively with her in the application.", "zh-HK": "本案情況特殊，雙方的共識是主審法官作出的“充公令”是錯誤的，作出“充公令”的過程亦不是公平的。代表答辯人（控方）的高專員更明確地表示，只要上訴人循適當程序申請撤銷“充公令”，控方不會反對，更會積極配合她的申請。" } }, { "doc_id": 83, "seg_id": 86, "translation": { "en": "The opinions we express are of course not binding on the appellant, but we take the view that she can apply for judicial review to overturn the confiscation order. There are numerous grounds that can support an application for judicial review to correct the decisions made by magistrates or District Judges. They include:", "zh-HK": "當然本庭的意見對上訴人不具約束力，但本庭認為她是可以利用司法覆核申請，要求推翻“充公令”。有眾多理由能支持司法覆核申請，要求改正裁判法院法官或區域法院法官的判決，該些理由包括：" } }, { "doc_id": 83, "seg_id": 87, "translation": { "en": "(1)an error of jurisdiction;", "zh-HK": "(1)an error of jurisdiction (司法管轄權的差錯)；" } }, { "doc_id": 83, "seg_id": 88, "translation": { "en": "(2)a failure to observe judicial fairness, such as bias;", "zh-HK": "(2)a failure to observe judicial fairness, such as bias (沒有遵守司法公正，例如有偏見)；" } }, { "doc_id": 83, "seg_id": 89, "translation": { "en": "(3)an error of law on the face of the record;", "zh-HK": "(3)an error of law on the face of the record (記錄上顯示有法律原則出錯)；" } }, { "doc_id": 83, "seg_id": 90, "translation": { "en": "(4)illegality;", "zh-HK": "(4)illegality (沒有法律根據)；" } }, { "doc_id": 83, "seg_id": 91, "translation": { "en": "(5)irrationality; and", "zh-HK": "(5)irrationality (不合情理的)；及" } }, { "doc_id": 83, "seg_id": 92, "translation": { "en": "(6)procedural impropriety.", "zh-HK": "(6)procedural impropriety (程序不當)。" } }, { "doc_id": 83, "seg_id": 93, "translation": { "en": "(see Archbold Hong Kong 2016 Edition p 679, para. 7-58).", "zh-HK": "(見Archbold Hong Kong 2016 Edition P679, para. 7-58)。" } }, { "doc_id": 83, "seg_id": 94, "translation": { "en": "We are of the view that the appellant can base her application on some of the aforesaid grounds to apply for judicial review, asking the court to overturn the confiscation order in order to get back the $40,000 bail money that had been confiscated.", "zh-HK": "本庭認為上訴人可根據部分上述理由透過司法覆核申請，要求法庭推翻“充公令”以取回被充公的4萬元保釋金。" } }, { "doc_id": 83, "seg_id": 95, "translation": { "en": "Wong Hay Yiu, instructed by Tang, Wong & Chow, assigned by the Director of Legal Aid, for the Appellant (appeal against confiscation order).", "zh-HK": "答辯人：由律政司署理高級助理刑事檢控專員高寶翠代表。" } }, { "doc_id": 83, "seg_id": 96, "translation": { "en": "The Appellant, in person, present (application for treating the notice of abandonment as a nullity)", "zh-HK": "上訴人（充公令上訴）：由法律援助署委派鄧王周廖成利律師行轉聘大律師王熙曜代表。" } }, { "doc_id": 83, "seg_id": 97, "translation": { "en": "Catherine Ko, Acting Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent", "zh-HK": "上訴人（申請把放棄上訴通知書當作無效）：沒有律師代表，親自應訊。" } }, { "doc_id": 84, "seg_id": 1, "translation": { "en": "Hon Yeung, JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案書：" } }, { "doc_id": 84, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 84, "seg_id": 3, "translation": { "en": "The applicant Chu Chi Wah was indicted for 13 offences, other than the 7th offence, which was Conspiracy to Procure an Abortion, all the other 12 offences were Unlawful Sexual Intercourse with an Underage Girl.", "zh-HK": "申請人朱志華被控共13項控罪, 除了第7項串謀促致流產罪外，其他12項控罪都是與未成年女童非法性交。" } }, { "doc_id": 84, "seg_id": 4, "translation": { "en": "The victim of this case X was a girl born on 3 December 1991. At part of the times of the commission of these offences, i.e. before 2004, X was under 13, while at other times she was over 13. Therefore, 7 of the 12 counts of Unlawful Sexual Intercourse with an Underage Girl for which the applicant was indicted (i.e. counts 1-6 and count 8) were Unlawful Sexual Intercourse with a Girl under 13, and the other 5 counts (i.e. counts 9-13) were Unlawful Sexual Intercourse with a Girl under 16.", "zh-HK": "案中受害人女童X在1991年12月3日出生。案發時的一段時間，即2004年前，X年齡在13歲以下，另一段時間，她則超過了13歲。因此申請人被控的12項與未成年女童非法性交罪中有7項是和13歲以下女童非法性交（即1-6，8項）,另外5項，即（9-13項）則是和16歲以下女童非法性交。" } }, { "doc_id": 84, "seg_id": 5, "translation": { "en": "The applicant denied all the charges. He was tried before Deputy High Court Judge Maggie Poon (as she then was) with a jury. The trial began on 12 March 2009.", "zh-HK": "申請人否認全部控罪，在2009年3月12日開始在高等法院暫委法官潘敏琦（當時職階）席前會同陪審團接受審訊。" } }, { "doc_id": 84, "seg_id": 6, "translation": { "en": "On 18 May 2009, the jury returned a verdict of guilty in respect of counts 1 to 6 and counts 8 to 12 of the Unlawful Sexual Intercourse with an Underage Girl offences, while the verdicts in respect of count 7 Conspiracy to Procure an Abortion and count 13 Unlawful Sexual Intercourse with a Girl under 16 were not guilty.", "zh-HK": "2009年5月18日，陪審團裁定申請人第1至第6項及第8項至第12項與未成年女童非法性交罪罪名成立，第7項串謀促致流產罪和第13項與16歲以下女童非法性交罪則罪名不成立。" } }, { "doc_id": 84, "seg_id": 7, "translation": { "en": "For counts 1, 2, 3 - 6 and count 8 of the Unlawful Sexual Intercourse with a Girl under 13 offences, the applicant was sentenced to 8 years’ or 6 years’ imprisonment for each count. The sentences are to run concurrently. As for counts 9 to 12 of the Unlawful Sexual Intercourse with a Girl Under 16 offences, the applicant received 4 years’ imprisonment on each count. The sentences are to run concurrently, but 2 years of the term is to run consecutively to the aforesaid 8 years’ imprisonment. The defendant has to serve a total of 10 years’ imprisonment.", "zh-HK": "就第1、第2、第3至第6項及第8項與13歲以下女童非法性交罪，申請人被判每罪入獄8年或6年，同期執行，就第9至第12項與16歲以下女童非法性交罪，申請人則被判每罪入獄4年，同期執行，但其中兩年要和上述8年的判刑分期執行，申請人需服刑共10年。" } }, { "doc_id": 84, "seg_id": 8, "translation": { "en": "The applicant seeks leave to appeal against his conviction.", "zh-HK": "申請人不服定罪，現提出上訴許可申請，要求獲准就定罪上訴。" } }, { "doc_id": 84, "seg_id": 9, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 84, "seg_id": 10, "translation": { "en": "The facts of the case and the issues raised in the appeal are not particularly material, and a brief description is sufficient. The applicant was the teacher of X. He started teaching her since she was a primary 2 student. In September 2003 X was promoted to Form 1 and from that time onwards, she went to the applicant’s home to receive private tuition. The place where the applicant gave private tuition was his dwelling place at No. 385 Nathan Road, Yaumatei, Kowloon.", "zh-HK": "案件事實和上訴引發的議題重要性不大，故只需簡述。申請人是X的老師，自X小學二年級開始教她。2003年9月X升讀中一後，開始到申請人家中補習。補習地點為申請人位於九龍油麻地彌敦道385號之居所。" } }, { "doc_id": 84, "seg_id": 11, "translation": { "en": "X stated that starting from January 2004 the applicant had sexual intercourse with her on multiple occasions. X remembered that the 1st occasion took place between 1 January and 29 February 2004; that the 2nd occasion was one to two weeks after the 1st one; that the 3rd occasion was also one to two weeks after the 2nd one; and that the 4th, 5th and 6th occasions took place between 1 March 2004 and 30 June 2004.", "zh-HK": "X指自2004年1月開始申請人多次和她發生性行為。X記得第一次是在2004年1月1日至2月29日期間發生；第二次和第一次相隔約一個多星期；第三次亦是在第二次發生後一個多星期進行；而第四、五、六次則在2004年3月1日至2004年6月30日期間發生。" } }, { "doc_id": 84, "seg_id": 12, "translation": { "en": "According to X, before her 13th birthday i.e. before 3 December 2004, she had sexual intercourse with the applicant several dozen times. At the beginning, it was once or twice every one to two weeks, but then it became more and more frequent. X specifically said that during May and June in 2004, on every Saturday after she finished jogging she stayed overnight at the applicant’s dwelling place and that she had sexual intercourse with him once or twice each week. She said that as a result of these activities she was pregnant and that in July or August in 2004 she had an abortion. Less than 2 weeks after the abortion, the applicant resumed having sexual intercourse with her.", "zh-HK": "據X所稱，她13歲生日，即2004年12月3日前，她和申請人性交有數十次。開始時約每一、兩星期一兩次，但其後愈來愈密。X特別指出在2004年5、6月期間，她每星期六跑完步都會到申請人的居所過夜，而每星期都會和他發生一、兩次性行為。她又指事件導致她懷孕，並在2004年7、8月期間接受墮胎手術，而接受墮胎手術不足兩星期後，申請人再開始和她發生性行為。" } }, { "doc_id": 84, "seg_id": 13, "translation": { "en": "X gave evidence that after her 13th birthday i.e. after 3 December 2004, the applicant had sexual intercourse with her regularly, about 10 times every month. The last time was in December 2006.", "zh-HK": "據X所稱她年滿13歲，即2004年12月3日後，申請人經常和她發生性行為，每月約10次，而最後一次是在2006年12月發生。" } }, { "doc_id": 84, "seg_id": 14, "translation": { "en": "The evidence-in-chief of X was given by way of video recording according to section 79C of the Criminal Procedure Ordinance (“the Ordinance”). The video recording of the evidence-in-chief was done in November 2008. X could not remember clearly the exact time when each intercourse with the applicant took place. However, she could recall that the 1st time took place in January or February of 2004.", "zh-HK": "X是根據《刑事訴訟程序條例》（“條例”）第79C條以錄影紀錄作為主問證供。主問證供錄影時間為2008年11月。X不能詳細記得每次和申請人性交的的確實時間，但她能說出第一次是在2004年1月或2月發生。" } }, { "doc_id": 84, "seg_id": 15, "translation": { "en": "X said that in May and June 2004, she had sexual intercourse with the applicant nearly 3 times weekly, and that consequently she was pregnant in July or August 2004. She said the applicant suggested that she should have an abortion and he accompanied her to a On Kay [transliteration of 安琪] Gynaecological Clinic. She alone entered the clinic. After the abortion, the applicant picked her up and they left the clinic together.", "zh-HK": "X亦指在2004年5、6月差不多每星期3次和申請人性交而她更因此在2004年7、8月懷孕。她指申請人建議她去墮胎並陪同她一起前往一「安琪婦科」。她一人進入診所，墮胎後，申請人接她離開診所。" } }, { "doc_id": 84, "seg_id": 16, "translation": { "en": "X went on to say that after the abortion and up to December 2006 when they broke up, she had sexual intercourse with the applicant on average 2 to 3 times a week. X pointed out that after the abortion, sexual intercourse should be suspended for at least 1 month, but in less than 2 weeks the applicant asked her to allow him to make love to her.", "zh-HK": "X亦指墮胎後至兩人在2006年12月分開期間，平均每星期都和申請人發生兩、三次性行為。X更指墮胎後應最少一個月才性交，但不足兩星期後，申請人已要求和她性交。" } }, { "doc_id": 84, "seg_id": 17, "translation": { "en": "When the defence counsel cross-examined X, he put it to her that she had strong desire to show off, that she was very good at creating something out of nothing and that she had lied before. X answered that a human being would certainly lie but she would not take the risk to lie in Court. She maintained that all her evidence was true.", "zh-HK": "辯方大律師盤問X時，指她有表演慾，又擅長創作，亦曾說謊。X表示人一定會講大話，但她不會冒險在法庭說謊，而她的證言全部屬實。" } }, { "doc_id": 84, "seg_id": 18, "translation": { "en": "The counsel submitted that X’s evidence was not credible, that it was riddled with contradictions and that part of her evidence was not consistent with the witness statements given to the police. X admitted that she did not tell the whole truth in her witness statements because during the interviews with the police officers, her mother was present and she did not know everything about this matter.", "zh-HK": "大律師指X的證供不可信，亦甚多矛盾，更部份和向警方提交的證人供詞不符。X承認警員會見她時因為媽媽在場，而她亦未知悉整件事件，故沒有在證人供詞中將事實全部說出。" } }, { "doc_id": 84, "seg_id": 19, "translation": { "en": "X stressed that she did not know that it was wrong to have sexual intercourse with the applicant. She trusted the applicant and thought that what she did with the applicant could not be wrong. X said that she continued to go to the applicant’s home to receive private tuition because she did not want her mother to become suspicious. She explained that after her first sexual intercourse with the applicant, she did not “care” about it anymore, so she did not refuse to continue to have sexual intercourse with the applicant.", "zh-HK": "X強調她不知道和申請人性交是不對的，同時她相信申請人並認為和申請人做的事都不會錯。X又表示繼續到申請人家中補習是避免媽媽懷疑。她更表示和申請人第一次性交後，再唔“care”，故沒有拒絕繼續和申請人性交。" } }, { "doc_id": 84, "seg_id": 20, "translation": { "en": "Based on the information provided by X, the police searched a Pang On Kay [transliteration of 彭安琪] Chinese Medicine Clinic. No western medicine or abortion equipment was found in the clinic, so no one was prosecuted after investigation.", "zh-HK": "警方曾根據X提供的資料，搜查一彭安琪中醫診所，警員發現診所內沒有西藥，亦沒有墮胎工具，故調查後並無起訴任何人。" } }, { "doc_id": 84, "seg_id": 21, "translation": { "en": "Besides X, X’s mother also gave evidence against the applicant. Her evidence was that after X was promoted to secondary school, she asked the applicant to allow X to go to his dwelling place to receive private tuition. Initially, she picked up X and went home with her. Later, she allowed X to return home on her own. Some time after that, X said that she would play ball games on Saturdays at Aberdeen with the applicant and other schoolmates, and that when the ball games were over, it would be very late at night and besides, the homework was left at the applicant’s home. The result was that she allowed X to stay overnight at the applicant’s home.", "zh-HK": "除了X外，她的媽媽亦有作供指證申請人。X的媽媽表示，X升讀中學後，她要求申請人容許X前往他的住所補習，初期她會接X返家，後來則容許X自己返家。其後X表示星期六會和申請人及其他同學前往香港仔打球，因打球後太晚，加上習作留在申請人家中，她結果容許X在申請人家中過夜。" } }, { "doc_id": 84, "seg_id": 22, "translation": { "en": "X’s mother testified that she had received a telephone call from the applicant. At that time the applicant called himself “Chu Sir”. He said that he and X had “fallen in love”. She said to the applicant, “ Don’t have any misunderstanding. You are her teacher now and throughout your life you will be her teacher. This kind of bond will last even longer. Don’t fancy about that thing; don’t have excessive desire. You’d better continue to be her teacher. The difference in age between the two of you is so big that even if I accept that and even if there is any result, it won’t last. The divorce rate nowadays is so high. I just want my daughter to concentrate in her education.”", "zh-HK": "X的母親更表示，曾收過申請人的電話，當時申請人自稱朱Sir，並表示和X“鐘意咗”。她則向申請人說：“你唔好誤會呀，一日為師，終生為師，情義重長喇，你唔好多心，唔好貪心，不如企番出嚟，做教師喇，你哋年紀又相差咁多，就算我接受，有結果都唔會長久嘅，而家離婚率又咁高我淨係想個女讀書啫。”" } }, { "doc_id": 84, "seg_id": 23, "translation": { "en": "X’s mother said that she had questioned X about this but X said “There’s nothing”. At last, she decided that she would not allow X to go to the applicant’s home to receive private tuition any more. X’s mother insisted that the person who telephoned her and claimed that he and X had “fallen in love” was the applicant.", "zh-HK": "X的母親表示曾質問X，但X表示“冇嘢呀”，但她最終決定不再容許X前往申請人家中補習。X的母親力稱打電話給她聲稱和X“鐘意咗”的人就是申請人。" } }, { "doc_id": 84, "seg_id": 24, "translation": { "en": "Dr Lau [transliteration of 劉] of the Forensic Pathology Service gave evidence that he examined X on 12 September 2008 and found that there were tears in her hymen which were probably caused by sexual intercourse. However, he could not be sure when the sexual intercourse took place, nor could he tell whether X had undergone any abortion operation.", "zh-HK": "法證科劉醫生亦有作供，劉醫生在2008年9月12日檢查X，發現她的處女膜有裂縫，很可能是性交造成，但他不能決定性交何時進行，亦不能肯定X是否曾經進行過墮胎手術。" } }, { "doc_id": 84, "seg_id": 25, "translation": { "en": "Defence evidence", "zh-HK": "辯方的證供" } }, { "doc_id": 84, "seg_id": 26, "translation": { "en": "The applicant’s case was that X lied and falsely accused him. In his evidence, he admitted that he began to teach X when she was in primary 3. His description of X was that she was lively, talkative, fond of play, imaginative and would do something aggressive against those who were more able than she.", "zh-HK": "申請人指X說謊誣告他。作供自辯時，申請人承認X三年級時已開始教她。申請人指X性格活潑，多嘴，貪玩，有創意，亦會針對和攻擊能力較她強的人。" } }, { "doc_id": 84, "seg_id": 27, "translation": { "en": "The applicant admitted that in September 2003 after X was promoted to Form 1, she began to go to his home to receive private tuition. Later, because there was a lot of homework to do, she stayed at his home until 8-9 o’clock. Starting from September 2004, X stayed overnight at his home on Saturdays. X slept in his bedroom, while he and 2 male students “ slept in the living room.”", "zh-HK": "申請人承認2003年9月，X升中一後開始到他家中補習，後來因為功課多，留在他家中至8、9點。2004年9月開始，X更在星期六在他家中過夜。X會睡在他的睡房，而他和兩名男生則“瞓廳”。" } }, { "doc_id": 84, "seg_id": 28, "translation": { "en": "The applicant agreed that in early 2005 he, at the request of X, provided her with a telephone, but X had never returned to him the money required for the telephone. The applicant said that on [one] occasion, X lost temper over some minor matters and asked her mother to come at once to take her away from the applicant’s home.", "zh-HK": "申請人同意曾應X的要求在2005年初出了一部電話給她，但X最終沒有歸還所需款額。申請人亦指X曾因一些小事發脾氣，要其母親立刻接她離開申請人的居所。" } }, { "doc_id": 84, "seg_id": 29, "translation": { "en": "According to the applicant, there was a period of one month during which X’s mother refused to allow X to go to his home to receive private tuition. The reason was that X had a love affair with a schoolmate. Only in December 2005 was X allowed to resume having private tuition in the applicant’s home.", "zh-HK": "申請人更指X的母親拒絕容許X到其居所補習一個月，原因是X和另一同學拍拖，直至2005年12月才容許X繼續在申請人居所補習。" } }, { "doc_id": 84, "seg_id": 30, "translation": { "en": "The applicant gave evidence about a number of incidents which made X unhappy with him. He said that in January 2006, at the request of X’s mother, he had X’s mobile telephone service changed to another telephone service provider so as to prevent her from ceaselessly sending text messages to her schoolmates. In the summer vacation of 2006, X persuaded him into buying a mobile telephone for her, but X had never paid for it.", "zh-HK": "申請人述及多宗事故，導致X對他不滿。申請人指2006年1月他應其母親的要求，將X的手提電話轉台，避免她不停向同學發短訊。2006年暑假，X說服他替她買了一部手提電話，但X最終沒有付款。" } }, { "doc_id": 84, "seg_id": 31, "translation": { "en": "The applicant put special emphasis on an incident which happened in November 2006. One day, X’s mother telephoned the applicant and asked him to look secretly at matters about the love affair between X and the boys recorded in X’s diary. She would use this as a reason for disallowing X to continue to receive private tuition. When the applicant was looking secretly at X’s diary, X discovered that. She snatched away the diary and slapped the applicant. The applicant said that he was “blinded by anger”, so that he not only slapped X, but scolded her for having deceived her mother and him. He also told X that she could not receive any more private tuition. X then left, but on the following day she still came to the applicant’s home for private tuition and she went on doing so until after mid December 2000. At that time X’s mother again accused X of lying and for that reason decided not to allow X to go to the applicant’s home for private tuition.", "zh-HK": "申請人特別提及2006年11月發生的一件事。當時X的母親致電要求申請人偷看X的日記有關她和男孩子拍拖之事並以此為理由不再容許X繼續補習，但申請人偷看其日記時遭X發現，X不但搶回日記，更掌摑了申請人。申請人指自己“火遮眼”，不但掌摑X，更駡她不應欺騙母親和他，同時要X不再補習, 結果X離開。但翌日X仍繼續到申請人居所補習直至2000年12月中後。當時X的母親再指X說謊，並決定因此不容許X到申請人居所補習。" } }, { "doc_id": 84, "seg_id": 32, "translation": { "en": "Later, X returned to the applicant his home keys and said that she would return to him the mobile telephone which he bought for her earlier. However, the applicant told her that she could use it until she bought a new telephone. The applicant said that X still contacted him and from time to time invited him through her schoolmates or over the telephone to go with her to have a look at the latest mobile telephone models or to go to the movies, or she would ask him about her homework, but he refused all such invitations.", "zh-HK": "其後X將申請人居所鎖匙歸還，並表示將申請人較早前買給她的手提電話歸還，但申請人向她表示她可以繼續用直至她買到新電話。申請人表示X仍有繼續聯絡他，並不時透過其同學及致電要他陪伴去看新出手提電話、看戲及問功課，但他都一一拒絕。" } }, { "doc_id": 84, "seg_id": 33, "translation": { "en": "The applicant denied that he had ever done anything improper to X or had ever told her to have an abortion. The applicant thought that X learned about the abortion clinic from a schoolmate and then she made up a story about abortion and used it against him. The applicant strongly protested that X falsely accused him because he had slapped her and she bore a grudge against him for that.", "zh-HK": "申請人否認有向X有做過任何不軌行為，更沒有叫她去墮胎。申請人認為X是由另一名同學中知悉墮胎診所，而將墮胎一事套用在其身上。申請人力稱X是誣告他，原因是他曾撐摑她，令她懷恨在心。" } }, { "doc_id": 84, "seg_id": 34, "translation": { "en": "The applicant stressed that the relationship between him and X was at all times confined to a solemn teacher and student relationship. He had never cherished any special affection for X.", "zh-HK": "申請人強調他和X的關係一直局限於嚴肅之師生關係，亦對X不抱任何特殊感情。" } }, { "doc_id": 84, "seg_id": 35, "translation": { "en": "The applicant called 2 students to testify. Both of them said that it was only in September 2004 that X began to stay overnight at the applicant’s home on Saturdays. However, X slept in a bedroom, while the applicant slept in the living room. They said that the applicant had never gone with X into the bedroom or into the storeroom, and that the door of the bedroom could not fully shut. One of the students even testified that he saw the applicant and X slap each other. Subsequently, X said to that schoolmate, “Why the hell did he look at my things? I had never been slapped by anyone before in my life. I will get even with him later”. Then X asked that male schoolmate to “lend a hand to frame Ah Sir for the 11 characters offence”. When the schoolmate indicated that he was not willing to do that, X asked him not to “reveal” it.", "zh-HK": "申請人有傳召兩名學生作供，他們都表示2004年9月開始，X才在星期六在申請人家中過夜。但X睡房，而申請人則睡廳。他們指申請人沒有和X一起入房或入雜物房，而睡房門亦不能完全關上。其中一名學生更表示目睹申請人和X互相掌摑。其後X更向該名同學表示“鬼叫佢睇我啲嘢先，我咁大個女都冇畀人打過，我遲啲會報仇嘅”。其後X更要該名男同學“幫手屈阿Sir衰十一”。該名同學表示不願意時，X則要他不要“篤爆”她。" } }, { "doc_id": 84, "seg_id": 36, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 84, "seg_id": 37, "translation": { "en": "On the face of it, the issues in this case all boiled down to this factual issue, namely whether X had sexual intercourse with X between January 2004 and December 2006 as alleged by her on the days mentioned in the charges.", "zh-HK": "表面上，案件的爭議全屬事實之爭議，即申請人在2004年1月至2006年12月期間，是否有如X所稱在控罪所指的日子和她發生性行為。" } }, { "doc_id": 84, "seg_id": 38, "translation": { "en": "The applicant’s counsel Mr. Richard Wong put forward a number of legal points as the grounds of appeal.", "zh-HK": "代表申請人的黃達華大律師提出多項法律觀點，作為上訴人理由。" } }, { "doc_id": 84, "seg_id": 39, "translation": { "en": "Mr. Wong submitted that the trial judge should not have granted the prosecution’s application made under section 79C of the Ordinance for treating X’s video recording as her evidence-in-chief.", "zh-HK": "黃大律師指原審法官不應批准控方根據條例第79C條，以X的錄影紀錄作為其主問證供。" } }, { "doc_id": 84, "seg_id": 40, "translation": { "en": "Mr. Wong said that at the time of the recording X was 17 years and 5 months old, and that she behaved like a mature person in the course of the questioning-and-answering during the recording. Mr. Wong emphasized that X was not to be examined by way of a live television link provided for under section 79B and had to face the applicant in Court and be cross-examined by his counsel in any event. Mr. Wong said that under these circumstances, X did not need to be protected by section 79C, therefore the trial judge should not have accepted that X could use the video recording as her examination-in-chief.", "zh-HK": "黃大律師指錄影時X的歲數是17歲5個月，而她在錄影時，答問表現成熟。黃大律師強調X始終須在法庭上面對申請人及接受其代表大律師的盤問，而非根據條例第79B條藉電視直播聯繫方式接受訊問。黃大律師認為在上述情況下，X無需受條例第79C條保護，因此原審法官不應接納X以錄影紀錄為其主問證據。" } }, { "doc_id": 84, "seg_id": 41, "translation": { "en": "Mr. Wong submitted that the trial judge should not have ruled that X’s video recording could be given in evidence without excluding any content. Mr. Wong considered that the following 3 categories of content should have been excluded from the video recording, namely (1) content about whether X was willing to have sexual intercourse with X; (2) content about sexual intercourse between X and the applicant which X talked about but was not included in the sexual intercourse specified in the charges (“uncharged acts”); and (3) content about complaints made by X to her boyfriend. Mr. Wong pointed out emphatically that these 3 categories of evidence were not relevant to the charges and were prejudicial to the applicant, therefore these 3 categories of evidence should have been excluded from X’s video rerecording before it could be given in evidence.", "zh-HK": "黃大律師亦指原審法官不應裁定X的錄影紀錄無需刪除內容就能呈堂為證。黃大律師認為以下三類內容應該從錄影紀錄中刪除，包括（一）X是否同意和申請人性交；（二）X說及和申請人的性交，但並非控罪所指的性交（“不被控告的行為”）；及（三）X向男朋友的投訴。黃大律師強調上述三類證據和控罪無關，但會對申請人構成不利，因此X的錄影紀錄需刪改上述三類證據，才能呈堂為證。" } }, { "doc_id": 84, "seg_id": 42, "translation": { "en": "Mr. Wong further submitted that part of X’s video recording infringed upon the legal principles about previous consistent statement. The trial judge did not exclude that part, nor did she give any directions to the jury about how to deal with such evidence, thereby going back on what she had promised to do during the argument between the prosecution and the defence.", "zh-HK": "黃大律師更指X的錄影紀錄部份觸犯了“以前一致”陳述（Previous consistent statement）的法律原則，原審法官卻沒有刪除該部份，更沒有向陪審團引導如何處理上述證供，違反了她曾在控辯雙方爭論時作出過之承諾。" } }, { "doc_id": 84, "seg_id": 43, "translation": { "en": "Mr. Wong argued that all the evidence against the applicant emanated from X, but the verdict returned by the jury in respect of the 13th charge against the applicant, namely Unlawful Sexual Intercourse with a Girl under 16, was not guilty, while the verdicts in respect of all other charges of Unlawful Sexual Intercourse were guilty. Mr. Wong considered that the verdicts returned by the jury were inconsistent verdicts.", "zh-HK": "黃大律師指出針對申請人的證供全部源自X，陪審團裁定申請人第13項和16歲以下女童非法性交罪不成立，但其餘各項和女童非法性交的罪名成立。黃大律師認為陪審團的裁決屬不一致的裁決。" } }, { "doc_id": 84, "seg_id": 44, "translation": { "en": "Finally, Mr. Wong complained that when the trial judge gave directions to the jury, she voiced strong views about the applicant’s evidence. Her directions were unbalanced and unfair to the applicant, therefore the verdicts of guilty against the applicant were unsafe and unsatisfactory.", "zh-HK": "最終，黃大律師指原審法官引導陪審團時，對申請人的證供作出強烈意見，其引導不平衡，對申請人不公，故將申請人定罪的決定是不安全及不穩當的。" } }, { "doc_id": 84, "seg_id": 45, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 84, "seg_id": 46, "translation": { "en": "Under Section 79C, in proceedings in respect of an offence of sexual abuse, a video recording of a child which relates to any matter in issue in the proceedings may, with leave of the Court, be given in evidence.", "zh-HK": "根據條例第79C條，在性虐待罪行，兒童的錄影會面記錄，如涉及有關法律程序中的任何爭議事宜，經法庭許可可以呈堂為證。" } }, { "doc_id": 84, "seg_id": 47, "translation": { "en": "The purpose of this provision is to strike a balance between the defendant’s interests and the victim’s interests in a particular kind of offence, so as to ensure that the trial is fair and just. Section 79C also provides that:", "zh-HK": "上述條例的目的是在某類特定案件平衡被告人和受害人的權益，確保審訊公平公正。條例第79C同時訂明：" } }, { "doc_id": 84, "seg_id": 48, "translation": { "en": "“(4)Where a video recording is tendered in evidence under this section, the court shall grant leave to admit the recording unless –", "zh-HK": "“(4) 如根據本條將錄影紀錄提出作為證據，除非有以下情況，否則法庭須給予許可以接納該紀錄─" } }, { "doc_id": 84, "seg_id": 49, "translation": { "en": "(a)it appears that the child… will not be available for cross-examination;", "zh-HK": "(a) 看來該兒童…將不能出席接受盤問；" } }, { "doc_id": 84, "seg_id": 50, "translation": { "en": "(b)any rules of court requiring disclosure of the circumstances in which the recording was made have not been complied with to the satisfaction of the court; or", "zh-HK": "(b) 規定披露作該紀錄的情況的法院規則未獲遵從至令法庭滿意的程度；或" } }, { "doc_id": 84, "seg_id": 51, "translation": { "en": "(c)the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording ought not to be admitted,", "zh-HK": "(c) 法庭在顧及該案的所有情況下，認為為了司法公正，該紀錄不應予以接納，" } }, { "doc_id": 84, "seg_id": 52, "translation": { "en": "and where the court grants such leave it may, if it is of the opinion that in the interests of justice any part of the recording ought not to be admitted, direct that that part shall be excluded.", "zh-HK": "凡法庭給予許可，但認為為了司法公正，該紀錄的任何部分不應予以接納，可指示摒除該部分。" } }, { "doc_id": 84, "seg_id": 53, "translation": { "en": "(5)In considering whether any part of a video recording ought to be excluded, the court shall consider whether any prejudice to the defendant, or one of the defendants, which might result from the admission of that part is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview.", "zh-HK": "(5) 法庭在考慮應否摒除任何錄影紀錄的某部分時，須考慮顯示錄影會面的全部或絕大部分的好處，較諸接納該部分的錄影紀錄對被告人或其中一名被告人所可能造成的損害，是否更為重要。" } }, { "doc_id": 84, "seg_id": 54, "translation": { "en": "(6)Where a video recording is admitted –", "zh-HK": "(6) 凡某錄影紀錄獲接納─" } }, { "doc_id": 84, "seg_id": 55, "translation": { "en": "(a)the child… shall be called by the party who tendered the recording in evidence;", "zh-HK": "(a) 提出該紀錄作為證據的一方須傳召該兒童…；" } }, { "doc_id": 84, "seg_id": 56, "translation": { "en": "(b)the child… shall not be examined in chief, save with leave of the court, on any matter which, in the opinion of the court, has been dealt with in his recorded testimony.”", "zh-HK": "(b) 除非經法庭許可，否則不得就法庭認為已在錄影證供上獲處理的任何事宜向該兒童…進行主問…”" } }, { "doc_id": 84, "seg_id": 57, "translation": { "en": "In section 79 Interpretation it is laid down that “child” means a person who:", "zh-HK": "條例第79條釋義部份亦列明“兒童”指：" } }, { "doc_id": 84, "seg_id": 58, "translation": { "en": "“in the case of an offence of sexual abuse –", "zh-HK": "在性虐待罪行的個案中─" } }, { "doc_id": 84, "seg_id": 59, "translation": { "en": "is under 17 years of age; or", "zh-HK": "指不足17歲的人；或" } }, { "doc_id": 84, "seg_id": 60, "translation": { "en": "for the purposes of section 79C, if the person was under that age when a video recording to which section 79C applies was made in respect of him, is under 18 years of age;”", "zh-HK": "就第79C條而言，則指不足18歲的人(如接受第79C條適用的錄影紀錄的人當其時不足17歲)；" } }, { "doc_id": 84, "seg_id": 61, "translation": { "en": "X was born on 3 December 1991. The video-recorded interview took place on 18 November 2008 when X was nearly but not yet reached 17 years of age. The trial began on 12 March 2009. X began to testify on 7 May 2009 and finished testifying on 11 May 2009. At that time X was 17 years and 5 months old, still under 18. X fully fit the definition of “child” in the Ordinance.", "zh-HK": "X是在1991年12月3日出生，有關錄影會面在2008年11月18日進行，當時X是接近但不足17歲。審訊在2009年3月12日開始，X亦是在2009年5月7日開始作供至2009年5月11日作供完畢。當時X是17歲零5個月，不足18歲。X完全符合條例所指“兒童”的釋義。" } }, { "doc_id": 84, "seg_id": 62, "translation": { "en": "One of the conditions for the Court’s admitting a video recording of a “child” witness as evidence is that the child must be available for cross-examination. Therefore, the fact that X had to undergo a face-to-face cross-examination can never be a reason for excluding such video recording. We will not overlook the fact that the pressure and difficulties which confront a child witness during the examination-in-chief stage are not the same as those in the cross-examination stage. In a sexual abuse case, it is not unusual that a child victim in Court during the examination-in-chief stage is unable to describe how the defendant abused him/her, with the result that the prosecution cannot prove their case. A child witness who is able to stand up to cross-examination in Court is not necessarily able during the examination-in-chief stage to tell the Court the course of events. The legislators certainly had this situation in their mind, and therefore under section 79C, on the one hand it is allowed to treat the video recording of a child witness as his/her examination-in-chief, and on the other hand the child is required to be available for cross-examination.", "zh-HK": "法庭採納“兒童”證人錄影紀錄作為證據，條件之一是該兒童必須出席接受盤問，因此X要面對面接受盤問，絕非摒棄該些錄影紀錄的理由。本庭不能忽視一名兒童證人在主問及盤問時要面對的壓力及困難不同。很多時候在性虐待案件，受害兒童在法庭在主問過程時已不能道出被告人侵犯他/她的過程，導致控方無法證案。一名能出席法庭面對盤問的兒童證人，不一定能在主問過程道出事實經過。立法者必然是考慮到上述情況，故在條例第79C條，一方面容許兒童證人以錄影紀錄作為其主問證供，另一方面要求該名兒童證人出庭接受盤問。" } }, { "doc_id": 84, "seg_id": 63, "translation": { "en": "Different people will have different views as to whether X behaved like a mature person during the recording. This is not the main factor in the Court’s consideration of whether leave should be granted for giving the video recording in evidence.", "zh-HK": "X在錄影時表現是否成熟是見仁見智，亦非法庭決定應否給予許可接納錄影紀錄為證的主要因素。" } }, { "doc_id": 84, "seg_id": 64, "translation": { "en": "In R v Chan Bing For [1997] 2 HKC 205 Liu JA, when considering the taking of the evidence of a child witness through close circuit television, had this to say:", "zh-HK": "在Rv Chan Bing For [1997] 2 HKC 205案，上訴法庭廖子明法官考慮以閉路電視錄取兒童證人的證供時，指出：" } }, { "doc_id": 84, "seg_id": 65, "translation": { "en": "“ The long-established procedure of having the physical presence of a child witness in Court should generally yield to such a statutory protection. Discretion should be favourably exercised in the case of a sexual abuse child victim unless the Court is otherwise persuaded that protection would not be necessary or a fair trial could not otherwise be attained. The Court may simply act on the age of the child, the nature of the offence and the nature of the allegations, such as those disclosed in the Crown’s opening. The application need not be fortified by other evidence, such as social welfare or psychological report.”", "zh-HK": "“條例訂立，目的是在性罪行案件保護幼童。要一名兒童證人親身出庭是早已確立的程序，但該程序一般而言要因條例所賦予的保障而讓路。在涉及性侵犯案件酌情權應對兒童受害人有利方向行使，除非法庭信服無需給予有關保障或給予有關保障會令公平審訊無法達致。法庭只需根據“兒童”的年齡、控罪的性質和控方開案陳述所顯露之指控的性質行事。申請無必需要以其他證據，例如社會福利署或心理專家報告來強化。”" } }, { "doc_id": 84, "seg_id": 66, "translation": { "en": "We agree with Liu JA’s view. In cases involving sexual abuse against children, the Court should presume that the child witnesses concerned need the protections provided by the Ordinance. The Court should exercise its discretion to allow the child witnesses to give evidence by using the procedures prescribed in sections 79A, 79B or 79C, unless the giving of evidence by using these procedures without the child witnesses giving evidence in Court will lead to an unfair trial. We do not accept Mr. Wong’s argument that the trial judge erred in granting leave to the prosecution to treat X’s video recording as her examination in-chief in accordance with section 79C.", "zh-HK": "本庭認同上述立場，在涉及性侵犯兒童的案件，法庭是要假設兒童證人需要條例的保障。除非兒童證人不出庭作供而根據條例第79A、79B或79C條列出的方式作供會導致不公平的審訊，法庭理應行使酌情權，容許兒童證人根據條例第79A、79B或79C條的方式作供。黃大律師指原審法官不應批准控方根據條例第79C條以X的錄影紀錄為主問證供的立場不正確，本庭不接納。" } }, { "doc_id": 84, "seg_id": 67, "translation": { "en": "The contents of X’s video recording showed that the number of times of sexual intercourse between she and the applicant which she alleged had taken place were far more than those specified in the charges. These illegal acts not included in the charges (“uncharged acts”) would be unfavourable to the applicant but it is not necessary that evidence related to “uncharged acts” can never be tendered as evidence. It had always been the prosecution’s position that the number of times specified in the charges were not the total number of times of the sexual intercourse between the applicant and X. The jury was well aware of the prosecution’s position.", "zh-HK": "X的錄影紀錄內容顯示她指稱申請人和她性交的次數遠較控罪所指的為多，該些控罪外之不法行為（“不被控告的行為”），會對申請人不利，但和“不被控告的行為”有關之證供並非一定不能呈堂為證。控方由始至終的說法都是控罪列出的次數並非申請人和X非法性交的全部次數，陪審團亦是知悉控方的立場的。" } }, { "doc_id": 84, "seg_id": 68, "translation": { "en": "In cases involving sexual abuse against children, evidence concerning “uncharged acts” can be relevant and admissible evidence.", "zh-HK": "在性侵犯兒童的案件，涉及“不被控告的行為”的證供可以是有關及可採納的證據。" } }, { "doc_id": 84, "seg_id": 69, "translation": { "en": "First of all, such evidence can be background information which explains the relationship between the defendant and the victim. Such evidence can serve to explain why the victim cannot remember the details of a particular event; explain the victim’s behaviour, including why she allowed the defendant to interfere with her on multiple occasions without making any complaint; and explain why the defendant could flagrantly and confidently make the victim submit and allow him to sexually abuse her again and again without the need to use any threat or inducement.", "zh-HK": "首先，該些證據可構成背景資料，解釋被告人和受害人的關係。該些證據可以解釋受害人為何不能記得某次事件詳情；可以解釋受害人的行為，包括為何她會容許被告對她多次侵犯而沒有投訴；可以解釋被告為何會明目張胆，有信心而無需恐嚇或引誘受害人便能使她就範，多次容許他的性侵犯行為。" } }, { "doc_id": 84, "seg_id": 70, "translation": { "en": "At the trial, Mr. Wong placed emphasis on the following points, including why the applicant could flagrantly have sexual intercourse with X in a bedroom at the same time when other students were doing homework in the living room; why X made mistakes about the date of a particular occasion on which she had sexual intercourse with the applicant; why she did not get away from the applicant when he behaved improperly to her; and why X could not remember the details of individual occasions of sexual intercourse.", "zh-HK": "原審時，黃大律師有強調以下數點，包括為何申請人會在其他學生在廳做功課時，肆無忌憚地在房間內和X發生性行為，為何X會就某次和申請人性行為的日子弄錯，為何申請人對她作出不軌行為時，亦不避開申請人，為何X不能記得個別性行為的詳情等等。" } }, { "doc_id": 84, "seg_id": 71, "translation": { "en": "The answers to the above questions are likely that X and the applicant had sexual intercourse so frequently that it became their regular activity. In fact, X clearly said that over the years she had sexual intercourse with the applicant on many occasions, so many that except the first occasion about which she had a relatively clear recollection, as for other occasions she might mix up one occasion with another and she could not remember clearly what happened on those occasions.", "zh-HK": "上述疑問的答案很可能都是因為申請人和X發生性行為次數多，變成慣性。事實上X亦有明確表示，多年來她和申請人發生性行為的次數太多，故除了第一次印象比較深刻之外，其他時候她容易混淆，過程亦不能記到清楚。" } }, { "doc_id": 84, "seg_id": 72, "translation": { "en": "We repeat the following remarks made by this Court in another case of similar nature, HKSAR v Kwok Hing Tony (CACC 26/2008):", "zh-HK": "本庭複述本庭在另一宗同類案件香港特別行政區 訴 郭慶 Tony (CACC 26/2008)案作出過的以下評論：" } }, { "doc_id": 84, "seg_id": 73, "translation": { "en": "“1.The issue of whether evidence of “uncharged acts” is admissible or not must be decided on the individual circumstances of each case, and the court is not bound to refuse to admit such evidence by reason of its nature alone (R v M & Ors [2000] 1 WLR 421, 426-7, citing R v Pettman (unrep) 2 May 1985, C. A.. R v M & Ors was followed in HKSAR v Chan Pui Mun CACC 514/2006 unrep 16 July 2008).", "zh-HK": "“1.不被控告的行為” 的證供是否可被法庭接納 (admissible evidence), 需視乎個别案件的情況而定，法庭並不需要因為其本質而必定拒絕接納該類證據 (R v M & Ors [2000] 1 WLR 421, 426-7, 援引R v Pettman (unrep) 2 May 1985, C.A. 。HKSAR v Chan Pui Mun CACC 514/2006, unrep. 16 July 2008亦有援引R v M & Ors) 。" } }, { "doc_id": 84, "seg_id": 74, "translation": { "en": "2.Even though such evidence is not used in a particular case as identification evidence of the defendant, or as similar fact evidence to prove that the defendant had committed the offence charged, or deployed by the defendant to challenge the credibility of the complainant, the court may still admit evidence of “uncharged acts” in circumstances including the following:", "zh-HK": "2.在個别案件中，雖然該類證供並不是用來識别被告人的身份(identification evidence) ，或並不是以“類似事實證據” (similar fact evidence) 用來證明被告人干犯了被控告的控罪, 或並不是由辯方提出用來挑戰投訴人的可信性，但法庭仍然可以接納 “不被控告的行為” 的證供，情況包括:" } }, { "doc_id": 84, "seg_id": 75, "translation": { "en": "-to prove the setting and context in which the offence occurred, or", "zh-HK": "-用來顯示控罪發生的環境 (setting) 及全盤局面(context) ，或" } }, { "doc_id": 84, "seg_id": 76, "translation": { "en": "-to explain the defendant’s confidence in repeating the offence, or", "zh-HK": "-用來解釋被告人重覆行動的信心，或" } }, { "doc_id": 84, "seg_id": 77, "translation": { "en": "-to explain unusual acts on the part of the complainant (such as the lack of surprise or fear, or the lack of complaint, or acts of acquiescence), or", "zh-HK": "-用來解釋投訴人不尋常的行為 (例如沒有覺得驚慌，或沒有作出投訴，或順從的行為)，或" } }, { "doc_id": 84, "seg_id": 78, "translation": { "en": "-to explain why the complainant is unable to recall the specific date and details of the offence charged.", "zh-HK": "-用來解釋投訴人為何不能清晰記起控罪的正確日期及詳情。" } }, { "doc_id": 84, "seg_id": 79, "translation": { "en": "In summary, the court may admit evidence of “uncharged acts” if its refusal to do so would result in the jury having an incomplete or incomprehensible account of events.”", "zh-HK": "簡單而言，如果法庭不接納這些證供的話，是會令到陪審團不能獲得一個完整及能夠明白的陳述時，則法庭是可以接納 ‘不被控告的行為’的證供的。”" } }, { "doc_id": 84, "seg_id": 80, "translation": { "en": "Whether X was willing to have sexual intercourse with the applicant, like the frequency of their having sexual intercourse, can shed light on some doubts and suspicions in this case, so it is not absolutely irrelevant. The applicant’s case was that he had never had any sexual intercourse with X, therefore it was not a matter of willing or unwilling. The applicant’s case would surely be put to X. We consider that what X said in the video recording about whether she was willing to have sexual intercourse with the applicant would not cause any injustice, therefore it was not necessary to exclude it.", "zh-HK": "X是否同意和申請人性交，亦和他們性交次數一樣，能解釋案件部份疑團，並非與案件完全無關。申請人的立場是他從來沒有和X性交,因此不存在同意與否，申請人的立場亦必會向X指明。本庭認為X在錄影紀錄中說及是否同意和申請人性交一事, 不會導致不公，故無需刪除。" } }, { "doc_id": 84, "seg_id": 81, "translation": { "en": "Mr. Wong also complained about the following two sections in the contents of X’s video recording:", "zh-HK": "黃大律師亦有就X的錄影紀錄內容的以下兩段作出投訴：" } }, { "doc_id": 84, "seg_id": 82, "translation": { "en": "“217. Interviewer: You can’t remember; mm, it doesn’t matter. You mean that earlier, on 8 September, a statement had been taken [from you], is that what you mean?", "zh-HK": "“217. 接見者：唔記得，唔，唔緊要吓，即係你之前九月八號呢就已經攞咗一份口供，係咪咁嘅意思呀？" } }, { "doc_id": 84, "seg_id": 83, "translation": { "en": "218. X:Mm, mm.", "zh-HK": "218. X：唔，唔。" } }, { "doc_id": 84, "seg_id": 84, "translation": { "en": "219. Interviewer:Ah, I see. Is that statement of yours about the same … er case which you described to me just now?", "zh-HK": "219. 接見者: 哦，明白。咁你嗰份口供同唔同你頭先同我講嗰啲-誒案件一樣呀？" } }, { "doc_id": 84, "seg_id": 85, "translation": { "en": "220. X:The same, but the year is a bit different.”", "zh-HK": "220.X:一樣，但係年份就有啲唔同。”" } }, { "doc_id": 84, "seg_id": 86, "translation": { "en": "“153. Interviewer: When did [you] tell him?", "zh-HK": "“153. 接見者: 幾時同佢講？" } }, { "doc_id": 84, "seg_id": 87, "translation": { "en": "154. X:This year, (Interviewer: Yes.) 20 … 25 August 2008.", "zh-HK": "154. X: 今年（接見者：係。）零八年八月廿…廿五號。" } }, { "doc_id": 84, "seg_id": 88, "translation": { "en": "155. Interviewer:Huh, huh, where did the conversation take place?", "zh-HK": "155. 接見者: 喀、喀，喺邊度講？" } }, { "doc_id": 84, "seg_id": 89, "translation": { "en": "156. X:Through the computer I sent … sent … er sent him a file. I mean I type a piece of writing by using Word … (Interviewer. Mm.) Microsoft Word, (Interviewer. Mm.) and then sent it to him, to tell him about it.", "zh-HK": "156. X: 喺電腦我send咗…send咗- 誒send咗個file 畀佢，即係我自己喺word…(接見者:唔) 喺Miscrosoft Word嗰度打一篇嘢，（接見者：唔）跟住send咗畀佢，同佢講。" } }, { "doc_id": 84, "seg_id": 90, "translation": { "en": "157. Interviewer:Mm, what was the gist of its content?", "zh-HK": "157. 接見者: 唔、內容大意係咩嘢？" } }, { "doc_id": 84, "seg_id": 91, "translation": { "en": "158. X:Er, I told him this thing happened. …", "zh-HK": "158. X: 誒就同佢講番有呢件事嘅發生囉。…" } }, { "doc_id": 84, "seg_id": 92, "translation": { "en": "368. X:The first one who learnt about it was my boyfriend. I mean I told him about it in August this year (Interviewer: Ah.) and he was the first one to learn about it.”", "zh-HK": "368.X:第一個人知，就係我男朋友，即係我就係去到今年八月同佢講，（接見者：哦。）先係佢第一個知。”" } }, { "doc_id": 84, "seg_id": 93, "translation": { "en": "Mr. Wong’s position is that the first section is “previous consistent statement” and that the second section does not comply with the requirements of “recent complaint”, therefore they should not have been admitted as evidence.", "zh-HK": "黃大律師的立場是第一段屬“以前一致”(Previous Consistent Statement)陳述而第二段則不符合“近期投訴”(Recent Complaint)，故不應被接納為證。" } }, { "doc_id": 84, "seg_id": 94, "translation": { "en": "The first section only shows that X agreed that in an earlier statement she had mentioned something which was “about the same case which she described in the video recording”. X did not say what she said in her earlier statement, nor did she agree that what she said was the same as the content of the video recording. We do not agree that the first section constitutes “previous consistent statement”.", "zh-HK": "第一段只顯示X同意在早前一份口供有說及“同她在錄影紀錄內講嗰啲案件一樣”。X沒有說及在早前一份口供內說過甚麼，更沒有同意所說的和錄影紀錄的內容相同。本庭不同意第一段會構成”以前一致”陳述。" } }, { "doc_id": 84, "seg_id": 95, "translation": { "en": "The second section shows that X told her boyfriend that “this thing happened”, but the interviewer did not ask X to tell him and X did not tell him the details of what she told her boyfriend about what happened. X’s boyfriend gave evidence at trial. Both Mr. Wong and his assistant said that they could not remember the details of the evidence of X’s boyfriend. However, Mr. Wong conceded that if X’s boyfriend had given evidence that X told him that the applicant had done any improper thing to her, he surely would have objected on the ground that such evidence did not constitute “recent complaint”. In this case, evidence related to what X’s boyfriend had been told would not constitute any unfairness against the applicant.", "zh-HK": "第二段顯示X曾向其男朋友說及“有呢件事嘅發生”，但接見者沒有要求X，而X亦沒有說出她向男朋友說出事件發生的經過的詳情。X的男朋友在原審時有作供。黃大律師和其副手都表示不再記得X男朋友證供的詳情。但黃大律師同意，如X的男朋友有說及X指申請人對她作出任何不當行為，他必會因該些證供不構成“近期投訴”而提出反對。在本案，和X男朋友有說過的話有關的證據，不會對申請人做成不公。" } }, { "doc_id": 84, "seg_id": 96, "translation": { "en": "We do not agree that the two sections quoted above are in any way unfair or prejudicial to the applicant. The trial judge was justified in not excluding them. Although the trial judge did not do what she had earlier promised to do when Mr. Wong raised his objection, namely to give directions to the jury about the aforesaid 2 points – what Mr. Wong called “previous consistent statement” and “recent complaint”, judging from the background and all the circumstances of this case, what the trial judge did and what she omitted to do did not constitute unfair treatment. The ground of appeal argued by Mr. Wong concerning the first and the second sections of X’s video recording is not established.", "zh-HK": "本庭不同意上述第一、二段會對申請人構成不公平或造成損害，原審法官有理由不作出刪除。雖然原審法官沒有按她較早前在黃大律師反對時所作之承諾，就上述兩點，即黃大律師所稱之“以前一致”陳述，和“近期投訴”向陪審團作出指引，但以案件之背景及整體情況而言，原審法官之所為及非作為不構成不公平的處理方法。黃大律師就X的錄影紀錄內容第一及第二段提出的上訴理由不成立。" } }, { "doc_id": 84, "seg_id": 97, "translation": { "en": "Furthermore, section 79C (5) of the Ordinance provides that:", "zh-HK": "再者，條例第79C (5)條規定如下：" } }, { "doc_id": 84, "seg_id": 98, "translation": { "en": "“In considering whether any part of a video recording ought to be excluded, the court shall consider whether any prejudice to the defendant, or one of the defendants, which might result from the admission of that part is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview.”", "zh-HK": "“法庭在考慮應否摒除任何錄影紀錄的某部分時，須考慮顯示錄影會面的全部或絕大部分的好處，較諸接納該部分的錄影紀錄對被告人或其中一名被告人所可能造成的損害，是否更為重要。”" } }, { "doc_id": 84, "seg_id": 99, "translation": { "en": "The legislators surely understood that at the time when a video recording is made for use as evidence in respect of a “child” witness, the person in charge of the recording is not necessarily a lawyer or a person who has received legal training, and these categories of people are not necessarily present; therefore, the video recording made may not fully comply with the requirements and stipulations laid down in the law of evidence. Section 79C (5) shows that even if part of a video recording violates the requirements and stipulations laid down in the law of evidence, the Court has discretion to order that no part of the video recording shall be excluded. We agree with the submission made by the respondent’s representative Mr. David Leung, Senior Assistant Director of Public Prosecutions, that in the circumstances of this case, it is proper to admit the whole video recording in evidence and that nothing unfair was done to the applicant, because any possible prejudice to the applicant was outweighed by the desirability of showing the whole of the video recording.", "zh-HK": "立法者必然是理解到根據條例第79C條從“兒童”證人拿取錄影紀錄為證時，不一定是由律師或有法律訓練的人士負責，他們亦不一定在場，因此取得的錄影紀錄不一定完全符合證據法的要求及規定。條例第79C（5）條的內容顯示即使錄影紀錄部份有抵觸了證據法的要求及規定，法庭仍具酌情權，下令無需摒除錄影紀錄的任何部份。本庭認同答辯人的代表大律師梁卓然高級刑事助理檢控專員的立場，以本案的背景，將X的整個錄影紀錄呈堂為證是恰當的做法，並沒有對申請人不公，原因是顯示全部錄影紀錄的好處，較對申請人可能造成的損失更為重要。" } }, { "doc_id": 84, "seg_id": 100, "translation": { "en": "It is one thing that the whole of X’s video recording could be admitted in evidence, but it is another thing whether the trial judge had given proper directions to the jury in respect of the admitted evidence. X alleged that at the material times, the applicant had on many occasions had sexual intercourse, which were not included in the charges, with her. Obviously, these acts, i.e. the aforesaid “uncharged acts”, were potentially prejudicial to the applicant. It was incumbent on the trial judge to give directions to the jury about how to deal with these “uncharged acts”.", "zh-HK": "X的錄影紀錄可以全部呈堂為證是一回事，原審法官是否有就呈堂的證據向陪審團作出適當指引是另一回事。X指在有關時段，申請人曾多次，在控罪所指以外，和她性交。該些行為，即上文所述的“不被控告的行為”，明顯可能會對申請人造成不利，主審法官理應引導陪審團如何處理該些“不被控告的行為”。" } }, { "doc_id": 84, "seg_id": 101, "translation": { "en": "In paragraph 145 of the judgment of Nancy Ann Kissel v HKSAR (FACC No. 2 of 2009), the Court of Final Appeal stressed that:", "zh-HK": "誠如終審法院在Nancy Ann Kissel v HKSAR (FACC No. 2 of 2009)案，判案書第145段強調：" } }, { "doc_id": 84, "seg_id": 102, "translation": { "en": "“We stress that where a trial judge comes to the conclusion that it is proper to admit evidence which has the capacity to be prejudicial, he should clearly direct the jury as to the use to which it can put the evidence.”", "zh-HK": "“本庭強調，當原審法官作出結論認為應採納一些帶有偏見的證據時，他應該清楚地引導陪審團可怎樣使用該等證據。”" } }, { "doc_id": 84, "seg_id": 103, "translation": { "en": "The High Court of Australia pointed out in paragraph 77 on p.132 of the judgment of Gipp v The Queen [1998] 194 CLR 106:", "zh-HK": "澳洲聯邦高等法院在Gipp v The Queen [1998] 194 CLR 106案的判案書第132頁第77段指出：" } }, { "doc_id": 84, "seg_id": 104, "translation": { "en": "“No doubt the evidence of general behaviour, if accepted, proved the commission of other criminal acts. But it was not tendered as propensity evidence. If the evidence had been tendered to prove propensity, it would have required careful direction in accordance with the principles emphasised by this Court on numerous occasions in recent years. Moreover, as BRS v The Queen (1997) 191 CLR 275 shows, if evidence admitted for reasons other than propensity in fact reveals a criminal or reprehensible propensity on the part of the accused, a trial judge must carefully direct the jury as to the use which they can make of the evidence. In BRS, McHugh J pointed out:", "zh-HK": "“毫無疑問，某些和一般行為有關的證據，如被接納，會證明被告人干犯了其他罪行。如該些證據呈堂目的是證明某些習性或傾向，必需根據本庭近年多次強調的原則向陪審團作出小心指引，再者,如BRS v The Queen (1997) 191 CLR 275案顯示，如採納證據目的並非顯示被告人有犯罪或不道德的習性或傾向，而是有其他目的，主審法官必需指引陪審團可怎樣使用該等證據。在BRS案，McHugh法官指出：" } }, { "doc_id": 84, "seg_id": 105, "translation": { "en": "‘If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused’s propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence’”.", "zh-HK": "‘如採納證據目的與習性和傾向無關，則主審法官必需指引陪審團只能使用該些證據作有關用途，而非其他用途。某些情況下法官的指引可能需要明確及具體，他有可能要指示陪審團不可使用該等證據作某些已識別之用途。如採納證據是因為控方要依賴被告人之習性或傾向作為證明鏈條之一環，主審法官更特別需要向陪審團清楚引導他們可怎樣使用該等習性或傾向證據”。" } }, { "doc_id": 84, "seg_id": 106, "translation": { "en": "In another Australian case R v Nieterink (1999) 76 SASR 56, the Supreme Court of South Australia gave even more specific guidelines about how to deal with “uncharged acts”. It is sufficient just to cite the 3 points specified in the headnote:", "zh-HK": "在另一宗澳洲案件, R v Nieterink (1999) 76 SASR 56, 南澳洲省的最高等法院就一些“不被檢控的行為”的處理方法，作出更為明確的指導。本庭只需列出判案書摘要指明的三點。" } }, { "doc_id": 84, "seg_id": 107, "translation": { "en": "“As to the use to be made of evidence of uncharged criminal acts, the jury must be directed, inter alia:", "zh-HK": "“就可怎樣使用“不被檢控的行為”為證據，必需向陪審團作出以下指引，包括：" } }, { "doc_id": 84, "seg_id": 108, "translation": { "en": "(a)Not to act upon it unless satisfied that those acts were proved;", "zh-HK": "除非“不被檢控的行為”已確立，否則不能根據它們行事；" } }, { "doc_id": 84, "seg_id": 109, "translation": { "en": "As to how they can use, and cannot use, such evidence;", "zh-HK": "陪審團可怎樣使用，或不能使用該些證據；" } }, { "doc_id": 84, "seg_id": 110, "translation": { "en": "Not to reason from such evidence that the accused had committed similar offences and/or was the sort of person who might commit the crimes charged;", "zh-HK": "不能因為該些證據為理由而認定被告人有干犯同類罪行及/或可能是會干犯控罪的那類人士；" } }, { "doc_id": 84, "seg_id": 111, "translation": { "en": "Not to reason from such evidence that as similar conduct to that charged has occurred, they can convict on a particular count for which the accused is being tried.”", "zh-HK": "不能因為該些證據顯示和控罪相同的行為發生過而裁定被告人受審的某項控罪罪名成立。”" } }, { "doc_id": 84, "seg_id": 112, "translation": { "en": "In the present case, besides the 13 charges set out in the indictment, X in the video recording stated that between January 2004 and December 2006, a period of 3 years, the applicant regularly had sexual intercourse with her at the frequency of about 10 times per month. However, when the trial judge gave directions to the jury, she gave no explanation at all as to the purpose for which this “uncharged acts” evidence was produced; whether it was tendered as “similar fact” evidence; whether it was used to show that the applicant had the propensity to commit the offences in question; or whether it was used to explain some special circumstances in this case, including why X could not remember the details of certain events; why X allowed the applicant to interfere with her on multiple occasions without making any complaint and without keeping away from him and why the applicant would flagrantly and outrageously have sexual intercourse with X in a bedroom when other students were doing homework in the living room. The trial judge gave the jury no direction at all as to the manner in which they could use this “uncharged acts” evidence.", "zh-HK": "在本案，除了控罪書列出的13項罪行外，X在錄影紀錄中談及申請人由2004年1月至2006年12月，共三年期間，經常和她發生性行為，每月約10次。但原審法官在引導陪審團時完全沒有解釋該些“不被檢控的行為”呈堂的目的是甚麼，是“類似事實”(“Similar fact”)證據;是顯示申請人有干犯控罪的傾向或習性(“propensity”), 或是解釋案件中一些特殊情況；包括為何X不能記得某些事件發生的詳情；為何X會容許申請人多次侵犯她而不作出投訴或逃避；為何申請人會明目張膽，有其他學生在廳做功課時仍肆無忌憚地在房間內和X性交。原審法官亦完全沒有向陪審團指引可怎樣使用該等“不被檢控的行為”的證供。" } }, { "doc_id": 84, "seg_id": 113, "translation": { "en": "Given that the trial judge gave no direction to the jury as to the use which they could make of the “uncharged acts” evidence, and that she gave no direction about the applicable standard of proof either, the trial was indeed unfair to the applicant and consequently his conviction is unsafe. For this reason, we should set aside the conviction.", "zh-HK": "在原審法官沒有指引陪審團應怎樣使用“不被檢控的行為”的證供，更沒有指引他們應採納的舉證準則時，審訊對申請人確有造成不公，而針對他的定罪亦因此是不穩妥的。基於這點，本庭理應撤銷有關定罪。" } }, { "doc_id": 84, "seg_id": 114, "translation": { "en": "In order to show that we take both counsel’s submissions seriously, we shall also briefly deal with the other 2 grounds of appeal relied on by Mr. Wong.", "zh-HK": "為顯示對雙方律師陳述之重視，本庭亦簡單地處理黃大律師提出的另外兩項上訴理由。" } }, { "doc_id": 84, "seg_id": 115, "translation": { "en": "We do not agree with Mr. Wong’s argument that the verdicts returned by the jury in this case are inconsistent. In HKSAR v Chan Shek-Wai (CACC 472/2001), Mr. Justice Stuart-Moore succinctly spelled out on page 11 of the judgment the applicable principle regarding “inconsistent verdict”:", "zh-HK": "本庭不同意黃大律師所稱本案的陪審團作出的裁決不一致。在HKSAR v Chan Shek-Wai (CACC 472/2001)案，司徒冕法官在判案書第11頁簡單地道出“不一致裁決”的適用原則：" } }, { "doc_id": 84, "seg_id": 116, "translation": { "en": "“So far as general principle is concerned, the burden of showing that verdicts are inconsistent falls squarely upon an appellant. Furthermore, not only must inconsistency be established but this must be shown to have been such as to call for interference by an appellate court.”", "zh-HK": "“一般性原則是，上訴人有絕對責任證明裁決是不一致的。再者，他不但要確立‘不一致’，更要證明‘不一致’的程度要上訴法庭干預。”" } }, { "doc_id": 84, "seg_id": 117, "translation": { "en": "In HKSAR v Chan Lai Lam (CACC 311/2003), this Court remarked that when dealing with an appeal which relied on the ground of “inconsistent verdict”, a firm approach should be adopted. From relevant cases this Court cited the following paragraphs:", "zh-HK": "在HKSAR v Chan Lai Lam（CACC 311/2003）案，本庭建議在處理以“裁決不一致”為理由的上訴時，應採取堅定不移的方法。本庭從有關案例中援引了下列段落：" } }, { "doc_id": 84, "seg_id": 118, "translation": { "en": "“To succeed the appellant must show, firstly, that the verdicts are logically inconsistent, secondly, that they are so inconsistent as to demand interference by an appellate court – i.e. that there is no way in which the logically inconsistent verdicts can be sensibly explained.”", "zh-HK": "“要成功，上訴人需顯示第一，裁決邏輯上是不一致的，第二，不一致的程度令上訴法庭不得不干預，即邏輯上不一致的裁決不可能合理地闡明。" } }, { "doc_id": 84, "seg_id": 119, "translation": { "en": "“All of these directions and those to which we have earlier referred, serve to illustrate yet again the importance of according respect to the verdict given by a jury. Having said that, obviously if the verdict amounts to what can effectively be described as nonsense, then it cannot be allowed to stand.”", "zh-HK": "上述指引及本庭較早前述及的指引再一次說明尊重陪審團裁決之重要性。當然，如果裁決實際上可被視為屬荒謬的，則必需推反。”" } }, { "doc_id": 84, "seg_id": 120, "translation": { "en": "The verdicts of not guilty reached by the jury in respect of the 7th charge, namely Conspiracy to Procure an Abortion and the 13th charge, which is one of the charges of Unlawful Sexual Intercourse with a Girl under 16, are not inconsistent with the verdicts of guilty reached in respect of other charges. The evidence shows that the police had searched the clinic where X alleged that she had received an abortion, but no equipment or western medicine which could be used for abortion was found. X had been examined by a forensic pathologist but the pathologist could not conclusively prove that X had received any operation for induced abortion. In these circumstances, the jury had a good basis to hold that X’s allegation that she had undergone an operation for abortion might be a result of misunderstanding and this could also be the basis on which they gave the applicant benefit of the doubt.", "zh-HK": "陪審團裁定申請人第7項串謀促致流產罪和第13項與16歲以下女童非法性交罪罪名不成立並非和其他控罪有罪的裁決不一致。證據顯示警方曾搜查過X聲稱進行流產的診所，但不能找到可供流產用的工具或西藥。法醫在檢查X後亦不能確證X曾進行過人工流產手術。在上述情況下，陪審團有基礎認為X所聲稱曾進行過流產手術可能是誤會所導致，亦有基礎給予申請人疑點的利益。" } }, { "doc_id": 84, "seg_id": 121, "translation": { "en": "The 13th charge stated that the applicant had sexual intercourse with X on a certain day in December 2006. However, on X’s evidence, in December 2006 she had already stopped receiving private tuition in the applicant’s home. The jury obviously was of the view that the day specified in the 13th charge might be wrong, and for this reason gave the applicant benefit of the doubt. The verdicts of the jury are by no means inconsistent. There is certainly no sufficient reason for us to interfere with the verdicts reached by the jury on the ground that the verdicts are inconsistent.", "zh-HK": "第13項控罪指申請人在2006年12月某日和X發生性行為，但根據X的證供，她在2006年12月已停止在申請人居所補習。陪審團明顯認為第13項控罪所指的日子可能有錯，並因此給予申請人疑點的利益。陪審團的裁決絕非不一致，本庭更沒有足夠理由以裁決不一致來干預陪審團的裁決。" } }, { "doc_id": 84, "seg_id": 122, "translation": { "en": "When a criminal case is tried in the Court of First Instance, the trial judge and the jury have different functions to fulfil. The jury is the judge in factual matters and the trial judge should trust them to make correct decisions. In giving directions to the jury, the trial judge is certainly entitled to express his views on factual issues, but the words and expressions used should be mild and balanced, not strong or one-sided. Otherwise, an onlooker who is aware of what is going on may feel that the trial judge has usurped the function exclusive to the jury and may think that the trial process is unfair.", "zh-HK": "高等法院原訟法庭處理刑事案件時，主審法官及陪審團扮演不同角色。陪審團是事實的裁決者而主審法官應信賴他們會作出正確的裁決。當然主審法官在引導陪審團時有權就事實議題表達其意見，但用詞應溫和、均衡而非強烈及一面倒，否則會導致一名知情的旁觀者覺得主審法官篡奪了陪審團獨有的職能及認為審訊程序不公平。" } }, { "doc_id": 84, "seg_id": 123, "translation": { "en": "To quote the following passages from the headnote to the judgment of HKSAR v Yeung Chor Ming [2004] 1 HKLRD 136 will suffice:", "zh-HK": "本庭只需複述香港特別行政區 訴 楊楚明 [2004] 1 HKLRD 136案之裁決摘要：" } }, { "doc_id": 84, "seg_id": 124, "translation": { "en": "“(1)The ultimate question was whether the summing-up as a whole was balanced and fair. This was one aspect of the long-established principle that justice must not only be done, but must be seen to be done …", "zh-HK": "“（一）最終來說，問題是總結講辭整體上是否平衡和公平。這是一項確立已久的原則。一即公義不但必須執行，而且必須被目睹執行…" } }, { "doc_id": 84, "seg_id": 125, "translation": { "en": "(2)The principles governing the judge’s powers and duties in relation to summing-up could be summarised as follows:", "zh-HK": "（二）關乎法官作總結講辭時的權力和責任的原則，可歸納如下：" } }, { "doc_id": 84, "seg_id": 126, "translation": { "en": "(a)The judge should never take away the jury’s function as the sole arbiter of facts. Hence, the wording and comments made in the course of the summing-up should not give the impression that the judge was directing the jury to accept his views on the facts …", "zh-HK": "(a)法官不可剝奪陪審團為事實方面的唯一裁斷者的職權，因此法官在總結講辭中的用語和評論不應使人覺得法官正在指示陪審團接納他自己對事實的看法…。" } }, { "doc_id": 84, "seg_id": 127, "translation": { "en": "(b)The wording and comments made in the course of the summing-up should not give the impression that the judge was making another speech for the prosecution …", "zh-HK": "(b)法官在總結講辭中的用的語言和評論，不應使人覺得法官正在替控方作另一次陳詞…；" } }, { "doc_id": 84, "seg_id": 128, "translation": { "en": "(c)Subject to (a) and (b) above, the judge was entitled to provide reasonable, impartial and fair explanation, analysis and comments on the parties’ cases and evidence, which would help the jury reach a conclusion …", "zh-HK": "(c)在受制於上述(a)和(b)下，法官有權在總結講辭中對控辯雙方的案情和證據作出合理、中肯和公平的解釋、分析和評論。這將有助陪審團達致裁決。" } }, { "doc_id": 84, "seg_id": 129, "translation": { "en": "(d)Where (a) or (b) above was contravened, the unbalance of the summing-up would not be saved by the usual reminder or direction that the jury were the sole arbiter of facts, or that it was a matter for the jury to draw a conclusion or verdict on the facts, or that the jury were free to reject any of the judge’s comments with which they disagreed … ”", "zh-HK": "(d)一旦出現違反上述(a)或(b)的情況，則即使法官在總結講辭中曾有循例叮囑或指示陪審團他們是事實方面的唯一裁斷者，或他們須自行就事實作出判斷及裁決，又或他們若不贊同法官的意見便無需接納該等意見等，也不足以彌補總結講辭的不當。" } }, { "doc_id": 84, "seg_id": 130, "translation": { "en": "It is undeniable that a significant part of the applicant’s evidence was not convincing, especially the evidence about the events which, according to the applicant, caused X to tell lies to falsely accuse him, including X’s refusal to return to the applicant the money spent on buying two mobile phones for her and the occasion on which they slapped each other.", "zh-HK": "無可否認申請人作供自辯時的證供很多部份不具說服力，特別是申請人指導致X說謊誣告他的事件，包括X拒絕歸還申請人替她購買的兩部手提電話的費用及互相掌摑等事件。" } }, { "doc_id": 84, "seg_id": 131, "translation": { "en": "With reference to the above two events, the trial judge made comments in her summing up to the jury as follows:", "zh-HK": "就上述兩宗事件，原審法官向陪審團作出總結陳辭在以下詳論：" } }, { "doc_id": 84, "seg_id": 132, "translation": { "en": "“The defendant bought at different times two wireless phones, mobile phones and gave them to X. However, he stressed that these two phones were not gifts. The defendant said that the first phone was a 3G phone and that X told him she would get money from her elder brother in order to return the money to him. But after a while, nothing happened. He asked X about it and X just gave him equivocal answers. What’s strange in this matter is that when X’s mother telephoned the defendant and asked him why he gave X such an expensive gift, the defendant not only did not clarify the situation by saying, “It’s not a gift”, but he even told X’s mother, “I had bought it anyway and I didn’t want to be mean, so I treated it as a birthday gift”. Then it was the West Kowloon incident, the defendant said that on that occasion he again could not resist X, who kept on [ ] [sic] him and repeatedly asked him to buy a white Sony Ericsson. On that occasion he again trusted X, who said that when she got to Form 4 she would have more pocket money, then she would pay. He said he relented and bought X the phone. You will remember that after this incident, X’s mother telephoned the defendant again and asked him, “Why did you buy another phone for X?” In this conversation between the two of them, she asked the defendant, “You’d better take the phone back or return it [to the company].” What was the defendant’s reply to X’s mother? The defendant said, “ You can treat it as an encouragement for X being able to be admitted to the science class at Form 4.” When the defendant was asked how much the phone actually cost, he said it was one thousand odd to two thousand odd dollars. He was not sure. Then Mr. So [transliteration of 蘇] questioned him, “You expected that she would repay you. There is no reason why you cannot remember how much money you wanted her to repay you and how much money the phone cost, right?” The defendant answered, “It happened many years ago. I cannot remember everything.” Then Mr. So put another question to him, “Why didn’t you return the phone [to the company] or take it back for your own use?” The defendant said, “You have bought a mobile phone yourself. [You know] you can’t return it [to the company]. The phone was a model for ladies. How could I use it?” You will remember that later, when X stopped receiving private tuition, she went to his home to pack up her things, and she left behind the bunch of keys and the phone, but the defendant still-- According to his evidence, he said to X, “You can take it away and use it.” Ladies and gentlemen, please think about this. The defendant said that on the first occasion when he bought the 3G telephone, he was cheated. At first he did not intend to treat it as a gift for her. At first he thought that she would repay him, but in the end she did not pay him back the money. Then why didn’t he become wiser? Why was there a second occasion when he bought the second telephone at West Kowloon? Why can he remember clearly some details such as what happened on which day, but in relation to how much the telephone cost, he didn’t take it seriously and cannot remember it? Were the two phones, as what X said, gifts given to her by the defendant, or were they, after he was cheated by X two times, after X failed to repay him, when he had no other alternatives, treated by him as a birthday gift or encouragement gift? Do you think that under an ordinary private tutor and student relationship, he would give her such an expensive gift which cost one thousand odd to two thousand dollars, approximately equivalent to the tuition fees for 5 tuition lessons? Can these two phones help you to decide what the relationship was between the defendant and X? Please consider this point yourselves.”", "zh-HK": "“被告前後就買咗兩個無線電話，手提電話畀X，不過佢強調兩個電話唔係禮物嚟嘅。被告話第一個3G電話，X就同佢講話會喺大哥嗰度攞番錢畀佢，但係過咗一排之後就冇件事喇，佢有問起過X嘅，但係X就支吾以對。但係奇怪嘅係，當X媽媽打電話畀被告，問佢做咩嘢送部咁名貴嘅禮物畀X嘅時候，被告係不但冇澄清話「唔係禮物嚟」，咁反而佢會同X嘅媽媽講話「都買咗喇，費事咁小家囉，咪當係生日禮物囉」。到咗西九龍嗰次喇喎，被告話佢嗰次又係經唔起X係咁「」，再三要求要買部白色嘅Sony Ericsson，咁佢嗰次又相信X，話到中四零用錢多番啲喇，就會畀錢，佢話佢心軟，買咗部電話畀X，但係嗰次之後，你哋會記得媽媽就又再打電話畀被告，問佢「點解又再買部電話畀X呀？」跟住兩個交談嘅時候又叫被告話「你不如收番喇，或者退番部電話喇。」咁被告點樣答X媽媽呢？被告就話「當係X入到中四理科嘅獎勵喇。」咁又係當被告被問及嗰部電話其實幾多錢？咁被告就話千幾二千金文喇，佢唔肯定。咁蘇大律師又質疑喇，「你諗住人哋會還錢，冇理由你要人哋還你幾多錢，嗰部電話幾多錢你會唔記得？」被告就話「好多年前嘅事，唔係所有嘅嘢都記得晒嘅。」咁蘇大律師又問佢喇，「咁你點解唔退番部電話或者自己收番嚟自己用呢？」被告就話「你都買過手機，都唔退得番嘅，部機係女裝嘅，我自己點用呀？」各位亦都記得，後來就算X停止補習喇，上去屋企執嘢喇，留番低揪鎖匙喇，留番低部電話，被告都仍然--根據佢自己嘅證供，叫X「妳攞番去用喇」。咁各位諗下喇，被告就話第一次買3G電話都上當喇，初初冇諗住係禮物送畀佢，初初諗住係會還錢，咁但係最終冇還到錢，咁點解仲唔經一事、長一智，仲要再第二次喺西九龍嗰度買第二部電話呢？點解佢對一啲細節，以至係咩嘢日期發生咩嘢事記得咁清楚，但係就對部電話係幾多錢又唔上心，記唔起嘅呢？嗰兩部電話係正如X所講，被告送畀佢嘅禮物，抑或係佢係佢喺X兩度呃佢唔還錢嘅情況下，不得而已，當作生日禮物或者係獎勵嘅禮物呢？咁各位認為普通補習老師同學生會唔會送成千幾二千鈫，等同五堂補習費咁上下嘅名貴禮物呢？呢兩部電話幫唔幫到你哋決定被告同X嘅關係呢？呢一點你哋自己考慮。”" } }, { "doc_id": 84, "seg_id": 133, "translation": { "en": "“The defendant was sure that after the slapping- each-other-incident as described by him, he had only told X’s mother that there was some conflict between he and X. He did not tell X’s mother that they had slapped each other. He said it’s because he himself felt embarrassed. According to his evidence, X went away angrily, but on the next tuition day, X came as usual for tuition. Both of them refrained from talking about that incident. You remember the defendant has given evidence that X was of strong character and had an intense rebellious temperament. When her mother and she went to have her mobile telephone service changed to another mobile telephone service provider. She went away when she was in Causeway Bay, went away in a fit of anger. Well, when the defendant succeeded in coaxing her to return home, according to the defendant, the whole family had to pretend that they had fallen asleep and dared not say anything. Ladies and gentlemen, the defendant’s evidence is that after X was slapped, she swallowed this humiliation in silence, pretended as if nothing had happened and went back there to receive tuition. Do you think that such evidence is reasonable or is it contrary to logic? The defendant talked about a looking-at-her-diary incident. He told you why there was this incident; what happened in and the result of this incident. Do you think it is true or invented? Please make your own decision.", "zh-HK": "咁被告所講話發生咗嗰件互相掌摑嘅事件之後，被告就好肯定佢凈係有同X嘅媽媽講話同X有啲衝突，佢係冇講過畀X媽媽聽有互相掌摑嘅事件事件，因為佢話佢都好瘀。而根據佢嘅證供，雖然X雖係怒氣沖沖咁走咗，咁但係佢話下一個補習天X又照舊返去補習，大家仲對個事件避而不談。咁各位記得喇，根據被告嘅證供，X嘅性格都好剛烈喎，反叛性好強喎，媽媽同佢轉台，喺銅鑼灣嗰度佢都可以走咗去，拂袖而去，好喇，被告氹到佢返屋企喇，根據被告所講，成家人都仲要扮瞓咗覺，唔敢出聲講嘢嘅，咁各位認為被告所講，X會喺被掌摑之後忍氣吞聲，扮若無其事返去補習嘅講法係合情合理吖，抑或常理有歪呢？被告所講睇日記呢件事件嘅始末同埋前因後果係事實定係砌詞呢？你哋自己決定喇。" } }, { "doc_id": 84, "seg_id": 134, "translation": { "en": "You will also remember that when Mr. Wong asked X about the diary, the instant response of X was this answer: “Oh, so, it was lost on that day! I just remember that I had taken it out to the streets, and after that it was missing.” She also said, “At first I thought that mum took away my diary, now it turns out that he took it away.” After that, Mr. Wong put it to X that when she came out from the toilet, she saw that the defendant was looking secretly at her diary; she snatched it away and slapped the defendant once. X categorically denied that. Mr. Wong put it to X that on that occasion she was slapped once by the defendant in front of Law Wing Lam [transliteration of 羅永林]; as a result she was psychologically injured. X replied, “The defendant had never slapped me in front of any schoolmates of junior classes. You’d better ask Law Wing Lam whether he saw such thing ever happened.” Do you think that these were X’s spontaneous responses or well-prepared responses? Was there ever a slapping-each-other-incident? Please consider it yourselves.”…", "zh-HK": "各位又會記得喇，當黃大律師問及X有關嗰本日記簿嘅時候，X第一個反應就係「哦，原來係嗰日唔見咗，我凈係記得帶過出街，之後就唔見咗喇」，佢又話「我起初以為阿媽攞咗我本日記，原來佢攞咗」。咁之後黃大律師就向X指出，佢喺洗手間出嚟見到被告偷睇佢嘅日記時候，佢搶番，摑咗被告一巴，X係斷言否認嘅。咁對於黃大律師向佢指出話，呢一次X係因為畀被告喺羅永林面前摑咗一巴，佢心靈受到創傷嘅，咁X就話「被告都未試過喺師弟面前摑我，你不如問下羅永林有冇見過啲咁嘅嘢發生」？各位認為呢啲係X嘅自然反應，抑或係早有準備嘅反應呢？互相掌摑嘅事件究竟有冇發生呢？你哋自己考慮。”….." } }, { "doc_id": 84, "seg_id": 135, "translation": { "en": "In our judgment, the above passages show that the trial judge placed excessive emphasis on the weak points of the defence case, so that it gives the impression that she was making another speech for the prosecution, rather than providing impartial and fair analysis and comments on the facts of the case.", "zh-HK": "本庭認為，上述例子顯示原審法官對辯方案情的弱點過份強調，令人覺得她正在替控方作另一次陳詞，而非就案情作出中肯和公平的分析和評論。" } }, { "doc_id": 84, "seg_id": 136, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 84, "seg_id": 137, "translation": { "en": "We hold that the trial judge did not give any direction to the jury about the “uncharged acts” and therefore rendering the conviction unsafe. We grant leave to the applicant to appeal against conviction. We treat this application as the appeal and allow the appeal. The conviction and sentence against the applicant are set aside.", "zh-HK": "基於本庭認為原審法官沒有就申請人“不被控告的行為”的證供，向陪審團作出任何指引，導致定罪不穩妥，本庭批准申請人就定罪上訴。本庭視申請為正式上訴，並裁定申請人上訴得直,針對申請人的定罪和判刑決定都撤銷。" } }, { "doc_id": 84, "seg_id": 138, "translation": { "en": "Postscript", "zh-HK": "附文" } }, { "doc_id": 84, "seg_id": 139, "translation": { "en": "This case involves the handling of evidence about “uncharged acts”. The period within which an individual offence which the applicant allegedly committed was not a certain day, or a short period, but one month, two months, three months or even as long as one year. The prosecution alleged that within these periods of time, besides the sexual intercourse specified in the individual charges, there were many other sexual intercourse between the applicant and X. According to the prosecution, in any one of the periods of time referred to by the charges, the applicant did many other “uncharged acts”, the exact number of which is not known. Owing to the fact that the offences and many other “uncharged acts” took place within the same place and the same periods of time, and under the same circumstances, the acts specified in the charges cannot be separated or differentiated from the many “uncharged acts” at all.", "zh-HK": "本案涉及如何處理“不被控告的行為”的證供。控方指控申請人的個別控罪發生的時間，並非是某一天，或某一段短時期，而是一個月，兩個月，三個月甚至長達一年的時間。根據控方的指稱，在上述時段，除了個別控罪所指的一次外，申請人有和X多次發生性行為。因此，在控罪所指的同一時段，控方指申請人同時犯有無數次的“不被控告的行為”。由於控罪和其他多次“不被控告的行為”發生在同一地點、同一時段及同一情況，控罪所指的行為和多次“不被控告的行為”根本不能區分或辨別。" } }, { "doc_id": 84, "seg_id": 140, "translation": { "en": "This handling method has two major defects: (1) It may lead to unfairness to the defendant, because the defence cannot distinguish which acts are the acts referred to in the charges and which acts are “uncharged acts”, and therefore may encounter difficulties when preparing its defence; (2) It will also be difficult for the trial judge to give directions to the jury as to these “uncharged acts”.", "zh-HK": "上述的處理方法，有兩大缺點：（一）可能會對被告人不公平，原因是辯方不能辨別哪些是控罪所指的行為，哪些是“不被控告的行為”，在作出相應的答辯時可能會面對困難；（二）主審法官要就“不被控告的行為”引導陪審團時，亦會面對困難。" } }, { "doc_id": 84, "seg_id": 141, "translation": { "en": "In HKSAR v Kwok Hing Tony (CACC 26/2008), this Court expressed its concern about the same matter. We cite paragraph 12 of the judgment of that case:", "zh-HK": "本庭在香港特別行政區 訴 郭慶 （CACC 26/2008）案已作出同樣關注。本庭複述該判案書第12段：" } }, { "doc_id": 84, "seg_id": 142, "translation": { "en": "“We would first mention a matter of concern, which is that when an offence which a defence faces refers to an ‘unknown date’ within a lengthy period of time, and the location is a place where the defendant and the complainant are often likely to meet, the appearance of evidence of “uncharged acts” may lead to unfairness to the defendant, because if he cannot distinguish acts with which he is charged from those with which he is not, he would not be able to present a defence corresponding to the charge.", "zh-HK": "“本庭首先要提出令人顧慮的一點，就是當一名被告人面對的控罪所陳述的日期，是一段悠長期間內的“某日”而地點是被告人與投訴人經常會見面的地方時，“不被控告的行為”的證供的出現，是可能對被告人不公，因為他未能辨別哪項行為是被控告的，而哪項行為是沒有被控告的，而作出相應的答辯。" } }, { "doc_id": 84, "seg_id": 143, "translation": { "en": "In Chim Hon Man v HKSAR (1999) 2 HKCFAR 145, the Court of Final Appeal has held that the defendant has a right to know clearly the particular act which forms the foundation of the charge. Sir Anthony Mason NPJ said:", "zh-HK": "終審法院在Chim Hon Man v HKSAR (1999)2 HKCFAR 145一案已提出，被告人是有權清楚知道作為控罪基礎的明確行為。Sir Anthony Mason NPJ說：" } }, { "doc_id": 84, "seg_id": 144, "translation": { "en": "‘Knowledge of the particular act, matter or thing which is the foundation of the charge is important in enabling the accused to ascertain and prove what, if any, defence, for example, an alibi, he may have to the offence charged and to subject a complainant’s evidence to searching scrutiny by reference to the surrounding circumstances. An accused person may be subjected to unfairness and embarrassment if he is called upon to meet a charge of one offence based upon evidence of the commission of multiple offences, more particularly if the evidence is such that it does not enable each such offence to be clearly differentiated from the others. The degree of unfairness or embarrassment may vary according to the circumstances. If the prosecution case is based on evidence of many offences in an extended period of time the unfairness may be considerable.’”", "zh-HK": "‘獲悉哪個確切的行動或事宜構成控罪的根基，是具重要性的，因為這會令到被告人能夠查明及證明他對控罪有什麼答辯，如有的話: 例如他並不在犯罪現場這一個答辯，與及令到被告人能夠就周遭的情況，對投訴人的證據作出徹底的審閱。如果一名被告人面對一項控罪，而支持該項控罪的證據顯示發生了多項罪行，尤其是如果該證據未能夠令人把每一個罪行辨別清楚，該名被告人是會蒙受不公。不公的程度則按情況而定。如果支持控方案情的證據，是一段悠長期間內發生了的多項罪行，那麼其不公的程度可能是相當高的)。’" } }, { "doc_id": 84, "seg_id": 145, "translation": { "en": "We hope that the Department of Justice would take into consideration the concern we have when they draft any indictment, so that the same problem would not appear again.", "zh-HK": "本庭希望律政司在草擬公訴書時，能將本庭的關注考慮在內，避免相同問題再次出現。" } }, { "doc_id": 84, "seg_id": 146, "translation": { "en": "Mr. Richard Wong and Mr. Robin Yue, instructed by Ng, Lie, Lai & Chan, for the Applicant", "zh-HK": "申請人: 由伍李黎陳律師行轉聘黃達華大律師及喻競天大 律師代表。" } }, { "doc_id": 84, "seg_id": 147, "translation": { "en": "Mr. David Leung, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員梁卓然代表。" } }, { "doc_id": 85, "seg_id": 1, "translation": { "en": "Hon Chu JA (giving the judgment of the Court):", "zh-HK": "由上訴法庭法官朱芬齡頒發上訴法庭判決書：" } }, { "doc_id": 85, "seg_id": 2, "translation": { "en": "The appellant applied to the Chief Executive for referral of her case to the Court of Appeal pursuant to s.83P of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong. The Chief Executive allowed the application and referred the whole case to this Court. Hence, this Court treated it as the appellant’s appeal against conviction. On 2 December 2011, this Court handed down judgment allowing the appeal and quashing the appellant’s conviction on charge 10.", "zh-HK": "上訴人根據《刑事訴訟程序條例》（香港法例第221章）第83P條，向行政長官申請把她的個案轉交上訴法庭。行政長官批准申請，把整宗案件轉交本庭。本庭因而視之為上訴人就其定罪判決向本庭提出的上訴。在2011年12 月2日，本庭頒下判案書，批准上訴，撤銷上訴人就控罪十的定罪判決。" } }, { "doc_id": 85, "seg_id": 3, "translation": { "en": "Subsequently, the appellant applied to this Court for costs, such costs being confined to costs of the proceedings following the Chief Executive’s approval to refer the whole case to the Court of Appeal. The respondent opposed the application.", "zh-HK": "上訴人其後向本庭申請訟費，有關的訟費只包括在行政長官批准把整宗案件轉交上訴法庭後的訴訟費用。答辯人反對申請。" } }, { "doc_id": 85, "seg_id": 4, "translation": { "en": "On 22 December 2011, this Court wrote to the counsel for the appellant and the Department of Justice, requesting both parties to provide further submissions regarding the legal basis of the costs application.", "zh-HK": "本庭在2011年12月22日去信上訴人的代表律師和律政司，要求雙方就訟費申請的法律基礎提交進一步陳詞。" } }, { "doc_id": 85, "seg_id": 5, "translation": { "en": "Section 9 of the Costs in Criminal Cases Ordinance", "zh-HK": "《刑事案件訟費條例》第9條" } }, { "doc_id": 85, "seg_id": 6, "translation": { "en": "In her submissions the appellant makes it clear that her costs application is made pursuant to s.9 of the Costs in Criminal Cases Ordinance, Cap. 492, Laws of Hong Kong (“CCCO”). Section 9 provides as follows:", "zh-HK": "上訴人的陳詞明確表示，她的訟費申請是按《刑事案件訟費條例》（香港法例第492章）第9條提出。第9條內容如下：" } }, { "doc_id": 85, "seg_id": 7, "translation": { "en": "“ (1)Where the Court of Appeal allows an appeal to which this section applies, the Court of Appeal may order that costs be awarded to the defendant.", "zh-HK": "「(1)凡上訴法庭判本條所適用的上訴得直，上訴法庭可命令將訟費判給被告人。" } }, { "doc_id": 85, "seg_id": 8, "translation": { "en": "(2)This section applies to any appeal -", "zh-HK": "(2)本條適用於─" } }, { "doc_id": 85, "seg_id": 9, "translation": { "en": "(a)under section 82 of the procedural Ordinance against conviction;", "zh-HK": "(a)不服定罪而根據程序條例第82條提出的上訴；" } }, { "doc_id": 85, "seg_id": 10, "translation": { "en": "(b)under section 83G or 83H of the procedural Ordinance against sentence, if and only if, the Court of Appeal quashes the sentence and in place of it imposes a less severe punishment than that imposed by the court below, under section 83I(4) of that Ordinance;", "zh-HK": "(b)不服判處而根據程序條例第83G或83H條提出的上訴，但只有當上訴法庭根據該條例第83I(4)條撤銷該項判處而以較下級法院所判處的懲罰為輕的另一項懲罰取代時方適用；" } }, { "doc_id": 85, "seg_id": 11, "translation": { "en": "(c)under section 83J of the procedural Ordinance against verdict of not guilty by reason of insanity, except where the Court of Appeal deals with the appeal under section 83K(4)(a) of that Ordinance;", "zh-HK": "(c)不服以精神紊亂為理由而判無罪的裁決而根據程序條例第83J條提出的上訴，但若上訴法庭根據該條例第83K(4)(a)條處理該上訴則除外；" } }, { "doc_id": 85, "seg_id": 12, "translation": { "en": "(d)under section 83M of the procedural Ordinance against a finding under section 75 of that Ordinance that the defendant is under a disability, except where the Court of Appeal deals with the appeal under section 83N(3) of that Ordinance.”", "zh-HK": "(d)不服根據程序條例第75條判被告人無行為能力的裁斷而根據該條例第83M條提出的上訴，但若上訴法庭根據該條例第83N(3)條處理該上訴則除外。」" } }, { "doc_id": 85, "seg_id": 13, "translation": { "en": "The respondent submits that s.9 exhaustively sets out all situations to which the section applies and that, accordingly, this Court has no power to award costs in situations not expressly covered by the provision. The appellant has not suggested that, apart from s.9, this Court also has any inherent power or other power to make costs orders. We agree with the respondent’s submission that the power of the Court of Appeal to award costs to a defendant in a criminal case is derived from s.9. Therefore, except in the circumstances set out in s.9(2), the Court of Appeal has no power to award costs to a defendant.", "zh-HK": "答辯人的陳詞提出第9條已經盡列該條文適用的情況，因此如遇到條文沒有提及的情況，法庭沒有權力判給訟費。上訴人的陳詞沒有提出本庭除第9條外，還享有固有權力或其他權力可作出訟費命令。本庭同意答辯人的陳詞，即上訴法庭在刑事案件中把訟費判給被告人的權力源自第9條，因此即除卻第9（2）條所臚列的適用情況外，上訴法庭在其他情況沒有權力將訟費判給被告人。" } }, { "doc_id": 85, "seg_id": 14, "translation": { "en": "The issue in this application", "zh-HK": "本申請的議題" } }, { "doc_id": 85, "seg_id": 15, "translation": { "en": "The appellant’s case plainly does not fall within any of the situations set out in s.9(2)(b) to (d). The issue is whether the appellant can invoke s.9(2)(a) in support of her costs application.", "zh-HK": "上訴人的個案顯然不符合第9(2)(b)至(d)條所述的情況。本申請的爭議點在於上訴人是否可援引第9(2)(a)條提出訟費申請。" } }, { "doc_id": 85, "seg_id": 16, "translation": { "en": "Section 9(2)(a) provides that s.9 applies to any appeal against conviction made under s.82 of the Criminal Procedure Ordinance (“CPO”). Section 82 provides as follows:", "zh-HK": "第9(2)(a)條規定第9條適用於不服定罪而根據《刑事訴訟程序條例》第82條提出的上訴。《刑事訴訟程序條例》第82條規定如下：" } }, { "doc_id": 85, "seg_id": 17, "translation": { "en": "“ (1)A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.", "zh-HK": "「(1)循公訟程序被定罪的人可針對其定罪向上訴法庭提出上訴。" } }, { "doc_id": 85, "seg_id": 18, "translation": { "en": "(2)The appeal may be-", "zh-HK": "(2)上訴可基於以下的理由─" } }, { "doc_id": 85, "seg_id": 19, "translation": { "en": "(a)on any ground which involves a question of law alone; and", "zh-HK": "(a)任何僅涉及法律問題的理由；及" } }, { "doc_id": 85, "seg_id": 20, "translation": { "en": "(b)with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal;", "zh-HK": "(b)(經上訴法庭許可)任何僅涉及事實問題的理由，或是涉及法律兼事實問題的理由，或上訴法庭覺得是足夠的上訴理由的任何其他理由；" } }, { "doc_id": 85, "seg_id": 21, "translation": { "en": "but if the judge of the court of trial grants a certificate that the case is fit for appeal on a ground which involves a question of fact, or a question of mixed law and fact, an appeal lies under this section without the leave of the Court of Appeal.”", "zh-HK": "但如主審法庭的法官發給一份證明書，證明該案件適合基於涉及事實問題的理由或涉及法律兼事實問題的理由提出上訴，則可無需經上訴法庭許可而根據本條提出上訴。」" } }, { "doc_id": 85, "seg_id": 22, "translation": { "en": "The appellant submits that, although her case was referred to the Court of Appeal pursuant to s.83P of the CPO, s.9(2)(a) is still applicable because, by virtue of s.83P(1)(a) which provides that the Chief Executive may refer to the Court of Appeal the whole case which shall then be treated for all purposes as an appeal to the Court of Appeal by the appellant, her case should be treated as an appeal made pursuant to s.82(1) of the CPO.", "zh-HK": "上訴人認為雖然她的案件是基於《刑事訴訟程序條例》第83P條轉交上訟法庭處理，但第9(2)(a)條仍然適用，原因是第83P(1)(a)條（註） 規定行政長官可將整宗案件轉交上訴法庭，而該案件就所有目的而言，須視為上訴人向上訴法庭提出的上訴，因此她的案件應被視為循《刑事訴訟程序條例》第82（1）條提出的上訴。" } }, { "doc_id": 85, "seg_id": 23, "translation": { "en": "The respondent takes issue with the appellant’s argument, relying on two main grounds. First, the respondent submits that in enacting s.9 of the CCCO, the legislature deliberately excluded s.83P of the CPO from the ambit of s.9. Second, the respondent points out that although s.83P(1) of the CPO provides that “the case shall then be treated for all purposes as an appeal to the Court of Appeal by that person”, it makes no mention of s.82. Furthermore, the words “all purposes” under s.83P(1) means that it is not necessary for the appellant to obtain leave to appeal in advance and that, in dealing with the case (including the hearing itself), the Court of Appeal shall treat the case as an appeal as far as the exercise of the powers (such as the power to admit new evidence) and the making of judgment (including any order for retrial) in relation to the hearing are concerned.", "zh-HK": "答辯人不同意上訴人的論點，所持的理由主要有兩點。首先，答辯人指出立法機關在通過《刑事案件訟費條例》第9條時，是刻意不把《刑事訴訟程序條例》第83P條涵蓋在內。其次，答辯人提出《刑事訴訟程序條例》第83P（1）條雖提及「該案件就所有目的而言，須視作為該人向上訴法庭提出的上訴」，但當中沒有提及第82條。再者；條文中提及的「所有目的」是指上訴人無須先取得上訴許可，及上訴法庭在處理該案時（包括聆訊本身），與聆訊有關的權力（如接取新證據）及判決（包括命令重審）等，須視作如上訴一般。" } }, { "doc_id": 85, "seg_id": 24, "translation": { "en": "Our views", "zh-HK": "本庭的意見" } }, { "doc_id": 85, "seg_id": 25, "translation": { "en": "The CCCO came into effect on 17 January 1997. Section 9 of the CCCO provides for the award of costs in criminal appeal cases. That section replaces s.83XX of the CPO and extends the power of the court to award costs to defendants in criminal appeal cases by conferring upon the court the power to award costs to a defendant in his appeal against sentence (s.9(2)(b)) and by repealing the original provision that no appellant would be entitled to costs if a retrial was ordered (see s.83XX(3)(a)).", "zh-HK": "《刑事案件訟費條例》在1997年1月17日生效，其中第9條是關乎刑事案件上訴的訟費。第9條是取代了《刑事訴訟程序條例》第83XX條（註）。它亦同時擴大了法庭在刑事上訴案件中判給被告人訟費的權力，即賦予法庭權力在判刑上訴時判給被告人訟費（第9(2)(b)條），以及取消被告人在法庭下令重審時不可以獲得上訴訟費的原有規定（見第83XX(3)(a)條）。" } }, { "doc_id": 85, "seg_id": 26, "translation": { "en": "Both s.83XX and s.9 make provisions in respect of various kinds of appeals. However, regarding appeals against conviction, both sections expressly provide that the provisions only apply to appeals against conviction under s.82 of the CPO, and neither of them covers appeals referred to the Court of Appeal pursuant to s.83P of the CPO. It is particularly noteworthy that at the time when s.83XX was in force, s.83P was already part of the CPO. On the other hand, other provisions (such as s.83G and s.83H) which were then part of the CPO were expressly included in s.83XX and s.9 which subsequently replaced it.", "zh-HK": "雖然第83XX條和第9條都羅列了不同種類的上訴案件，但就針對定罪提出的上訴，它們都明確規範只適用於不服定罪而根據《刑事訴訟程序條例》第82條提出的上訴。而且兩項條文都沒有把根據《刑事訴訟程序條例》第83P條轉交上訴法庭的上訴涵蓋在內。尤其值得注意的是在第83XX條生效時（註），第83P條經已是《刑事訴訟程序條例》的一部分（註），而另一方面，其他當時已是條例一部分的條文（如第83G及第83H條），都明確包括在第83XX 條和其後取代它的第9條之內。" } }, { "doc_id": 85, "seg_id": 27, "translation": { "en": "In our view, the legislature deliberately confined the court’s power in awarding costs in appeals against conviction to those appeals made pursuant to s.82 of the CPO. Moreover, the legislature also deliberately excluded referrals to the Court of Appeal by the Chief Executive at his discretion pursuant to s.83P from the scope of s.9. In our view, the legislative intent behind s.9 is that the power of the Court of Appeal to award costs to a defendant does not extend to cases referred pursuant to s.83P.", "zh-HK": "本庭認為，由此可見立法機關是刻意把法庭在定罪上訴案中判給訟費的權力局限於根據《刑事訴訟程序條例》第82條提出的針對定罪的上訴。而且，立法機關亦是刻意不把行政長官根據第83P條酌情轉交上訴法庭的案件納入在第9條的適用範圍。本庭認為，第9條的立法原意是：上訴法庭將訟費判給被告人的權力不適用於根據第83P條轉交的案件。" } }, { "doc_id": 85, "seg_id": 28, "translation": { "en": "Although s.83P(1)(a) provides that cases referred to the Court of Appeal by the Chief Executive shall be treated for all purposes as appeals to the Court of Appeal, these cases are not to be equated with the appeals against conviction under s.82 of the CPO and hence fall within s.9(2)(a). We also agree with the respondent’s submission that the purpose of the provision in s.83P(1)(a) that “(the case) shall be treated […] as an appeal to the Court of Appeal by that person” is merely to make it clear that, following the Chief Executive’s decision of referral, these cases shall be dealt with as appeals to the Court of Appeal, which shall hear and determine these cases as if they are appeal cases. In such circumstances, s.83P(1)(a) should not be construed as widening the power of the Court of Appeal to award costs under s.9 of the CCCO.", "zh-HK": "雖然第83P(1)(a)條提及行政長官轉交上訴法庭的案件就所有目的而言，須視作向上訴法庭提出的上訴，但這不表示這些案件等同根據《刑事訴訟程序條例》第82條而提出的針對定罪的上訴，從而符合第9(2)(a)條的規定。本庭也同意答辯人的陳詞，即第83P(1)(a)條中有關「須視作該人向上訴法庭提出的上訴」的條文，其目的僅在於闡明當行政長官決定把案件轉交後，這些案件須被視為向上訴法庭提出的上訴般處理，而上訴法庭在審理和判決這些案件時，須視它們如上訴案件一樣。是故，第83P(1)(a)條不應被詮釋為擴大上訴法庭在《刑事案件訟費條例》第9條下判給訟費的權力。" } }, { "doc_id": 85, "seg_id": 29, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 85, "seg_id": 30, "translation": { "en": "Given the above analysis, we are of the view that the appellant’s costs application does not fall within the ambit of s.9(2)(a) of the CCCO. The appellant’s costs application is dismissed accordingly.", "zh-HK": "基於上述分析，本庭認為上訴人的訟費申請不屬於《刑事案件訟費條例》第9(2)(a)條的範圍之內。本庭因此不批准上訴人的訟費申請。" } }, { "doc_id": 85, "seg_id": 31, "translation": { "en": "Mr Alex Lee, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員李運騰代表。" } }, { "doc_id": 85, "seg_id": 32, "translation": { "en": "Mr Richard Wong and Mr Danny Chan, instructed by Cheung & Choy, for the Appellant", "zh-HK": "上訴人：由張世文蔡敏律師事務所轉聘黃達華大律師及陳健强大律師代表。" } }, { "doc_id": 86, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案書：" } }, { "doc_id": 86, "seg_id": 2, "translation": { "en": "Initially, the present application for leave to appeal involved three applicants, namely the 1st, 2nd and the 3rd Applicants, who were respectively the 1st, 2nd and 3rd Defendants at trial. On the day of the hearing, Counsel for the 3rd Applicant applied for an adjournment of the case and we allowed the application. It followed that we were only concerned with the applications of the 1st and 2nd Applicants. We now deliver the judgment on the relevant applications.", "zh-HK": "本上訴許可申請原本有三名申請人，即第一、第二及第三申請人，亦即原審時的第一、第二及第三被告人。由於第三申請人的代表律師在聆訊當日申請將案件押後及該申請獲本庭批准，本庭因此只需要處理第一及第二申請人的申請。現本庭頒發有關申請的判案書。" } }, { "doc_id": 86, "seg_id": 3, "translation": { "en": "The 1st Applicant", "zh-HK": "第一申請人" } }, { "doc_id": 86, "seg_id": 4, "translation": { "en": "The 1st Applicant was indicted for four charges. Three of them (i.e. Charges 1, 3 and 5) were for the offences of ‘offering advantages to an agent’, contrary to section 9(2)(a) of the Prevention of Bribery Ordinance (Cap. 201 of the Laws of Hong Kong); the remaining one (i.e. Charge 7) was for the offence of ‘conspiracy to defraud’, contrary to the common law.", "zh-HK": "第一申請人被控四項控罪，其中三項控罪（即第一、三及五項控罪）是「向代理人提供利益罪」，違反《防止賄賂條例》（香港法例第 201 章）第 9(2)(a) 條。另外一項控罪是「串謀詐騙罪」（即控罪七），違反普通法。" } }, { "doc_id": 86, "seg_id": 5, "translation": { "en": "The 1st Applicant pleaded guilty to the charges before Deputy District Judge Albert Wong (hereinafter ‘Judge Wong’) and was sentenced to imprisonment for 40 months. The 1st Applicant applied for leave to appeal against sentence.", "zh-HK": "第一申請人於區域法院暫委法官黃崇厚席前承認控罪。黃法官判處第一申請人四十個月監禁。第一申請人就刑期提出上訴許可申請。" } }, { "doc_id": 86, "seg_id": 6, "translation": { "en": "The 2nd Applicant", "zh-HK": "第二申請人" } }, { "doc_id": 86, "seg_id": 7, "translation": { "en": "The 2nd Applicant was charged with two counts of ‘accepting advantages as an agent’ (i.e. Charges 8 and 9), contrary to section 9(1)(a) of the Prevention of Bribery Ordinance. He pleaded not guilty to the charges. After trial, Judge Wong convicted the 2nd Applicant on Charge 8 and acquitted him on Charge 9. For Charge 8, Judge Wong sentenced the 2nd Applicant to imprisonment for 3 years. The 2nd Applicant applied for leave to appeal against conviction. Originally, the 2nd Applicant also applied for leave to appeal against sentence, but on 11 June 2009 he filed a notice of abandonment of application for leave to appeal, and we dismissed the application on the same day.", "zh-HK": "第二申請人被控兩項「代理人接受利益罪」（即第八和第九項控罪），違反《防止賄賂條例》第 9(1)(a) 條。第二申請人否認控罪。黃法官審結案件後就第八項控罪裁定第二申請人罪名成立，而就第九項控罪就罪名不成立。黃法官就第八項控罪判處第二申請人入獄三年。第二申請人就定罪提出上訴許可申請。第二申請人原本亦就刑期提出上訴許可申請，但於 2009 年 6 月 11 日提交放棄針對刑期上訴許可通知書，法庭亦於同日撤銷該申請。" } }, { "doc_id": 86, "seg_id": 8, "translation": { "en": "The 2nd Applicant’s application in relation to sentence", "zh-HK": "第二申請人定罪申請" } }, { "doc_id": 86, "seg_id": 9, "translation": { "en": "We begin by dealing with the 2nd Applicant’s application for leave to appeal against conviction on Charge 8.", "zh-HK": "本庭首先處理第二申請人針對第八項控罪的定罪上訴許可申請。" } }, { "doc_id": 86, "seg_id": 10, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 86, "seg_id": 11, "translation": { "en": "The 1st Applicant was Managing Director of Centaline Property Agency Limited (hereinafter ‘Centaline’) and, as such, was responsible for the sale and purchase and leasing of industrial and commercial premises and shop premises. The 2nd Applicant was General Manager of Li & Fung Trading Limited (hereinafter ‘Li & Fung’) and, as such, was responsible for property transactions of the Li & Fung Group. It was alleged that in a property transaction involving Jebsen Motor Group Building (hereinafter ‘Jebsen Building’), the 1st Applicant offered a bribe of $800,000 (i.e. Charge 1) to the 2nd Applicant, who then accepted the bribe (i.e. Charge 8).", "zh-HK": "第一申請人是中原地產代理有限公司（「中原」）的董事兼總經理，負責工商業樓宇、商舖的買賣及租賃事務。第二申請人是利豐貿易有限公司（「利豐貿易」）的總經理，負責利豐集團的物業交易事務。第一申請人在一宗涉及捷成汽車集團大廈（「捷成大廈」）的物業買賣交易向第二申請人提供 $800,000 的賄款（即第一項控罪），第二申請人接受了該筆賄款（即第八項控罪）。" } }, { "doc_id": 86, "seg_id": 12, "translation": { "en": "In his Reasons for Sentence against the 1st Applicant, Judge Wong summarized the relevant property transaction as follows:", "zh-HK": "黃法官在針對第一申請人所作出的判刑理由書內將有關的物業交易簡述如下：" } }, { "doc_id": 86, "seg_id": 13, "translation": { "en": "In mid 2005, [Centaline] was engaged as the agent in a property transaction. Subsequently, in response to the request of the 2nd Defendant, the 1st Defendant took $800,000 from the commission payable to Centaline by the employer of Li & Fung and then gave that sum to the 2nd Defendant as rebate. For that purpose, the 1st Defendant, having made a false claim to [Centaline] that his own company Wang Him (宏謙) had rendered services to [Centaline], took $1,000,000 as consultancy fee, of which $800,000 was given to the 2nd Defendant and the remaining $200,000 was retained for tax payment by the company that had been used as the vehicle of swindling the money.", "zh-HK": "「3．2005 年年中，中原地產被聘用在一宗物業買賣交易中擔任代理，之後第一被告人答應第二被告人的要求，從利豐的僱主給予中原的佣金之中取了 800,000 元交給第二被告人作為回佣，為了這樣做，第一被告人向中原地產虛稱自己的公司宏謙(譯音)曾為中原地產提供服務，並取了 1,000,000 元的顧問費，其中 800,000 元交了給第二被告人，餘下的 200,000 元留給騙財工具那間公司作為交稅之用。」" } }, { "doc_id": 86, "seg_id": 14, "translation": { "en": "The prosecution’s case against the 2nd Applicant", "zh-HK": "針對第二申請人的控方案情" } }, { "doc_id": 86, "seg_id": 15, "translation": { "en": "The third prosecution witness (PW3) was an agent in the employ of Centaline. In February 2006, she came to know that the owner of Jebsen Building intended to sell the property. She informed the 2nd Applicant of that and went with him to the building for an inspection. Thereafter, the 2nd Applicant negotiated with the vendor’s representative about the purchase of Jebsen Building, and Centaline was appointed as the agent in the transaction. On 4 May 2006, i.e. when the vendor and the purchaser were about to sign the purchase proposal, the vendor indicated that he was not prepared to pay commission to Centaline. PW3 had a dispute with the vendor. The 2nd Applicant persuaded PW3 to sign the contract as soon as possible, saying that if PW3 did not do so, the vendor would ignore them. In order to make Centaline a party to the contract, PW3 asked his subordinate (the fourth prosecution witness) to sign the relevant documents for and on behalf of Centaline. The contract provided that the Purchaser would pay Centaline 1% of the purchase price (i.e. $2,400,000) as commission.", "zh-HK": "控方第三證人（第三證人）是任職「中原」的代理人，她於 2006 年 2 月獲悉「捷成大廈」的業主有意出售物業，於是通知第二申請人及與他一同到該大廈視察。之後，第二申請人與賣主的代表商議購買「捷成大廈」，「中原」獲委任為該交易的地產代理。在 2006 年 5 月 4 日，即買賣雙方預備簽署購買建議書時，賣主表示不願意支付「中原」的佣金。第三證人與賣方發生爭執。第二申請人勸第三證人儘快簽署合約，否則賣方不會理會他們。第三證人為了「中原」可成為合約的其中一方，於是吩咐下屬（即控方第四證人）代表「中原」簽署有關文件。合約條款訂明買家會向「中原」支付成交價百分之一（即$2,400,000）的佣金。" } }, { "doc_id": 86, "seg_id": 16, "translation": { "en": "Subsequently, the Independent Commission Against Corruption (hereinafter ‘ICAC’) entered the scene. On 9 May 2006, when the 1st and 2nd Applicants met in a hotel in Kowloon, ICAC officers covertly took video and audio recordings of the meeting. The following is an account of the conversation between the two Applicants during the meeting, as summarized by Judge Wong:", "zh-HK": "之後，廉政公署（「廉署」）介入事件。當第一申請人與第二申請人於 2006 年 5 月 9 日在九龍一間酒店內會面時，「廉署」人員秘密地錄影和錄音兩人的會面情況。以下是黃法官簡述兩人會面時的談話內容：" } }, { "doc_id": 86, "seg_id": 17, "translation": { "en": "Initially, the 1st Defendant mentioned that a commission was payable for the Jebsen Building transaction and asked what should be done. The 2nd Defendant replied that the vendor refused to pay a commission to Centaline and also criticised Salomy for mishandling the matter (note: Salomy is the English name of PW3). Then the 1st Defendant told the 2nd Defendant that commission from only one party had been received and then asked the 2nd Defendant whether he considered an adjustment necessary. The 1st Defendant said that Salomy once told him that a lot of people had to be given a share of the commission in this transaction, and that she was a bit aggrieved and requested him to discuss the matter with the 2nd Defendant. The 2nd Defendant replied, “I have done what I have to do.” When the 1st Defendant suggested a 10% reduction, the 2nd Defendant replied, “10% means as much as $200,000. A reduction of only $100,000 will be fine with me.” In the end, the 2nd Defendant suggested a reduction of $150,000. The 2nd Defendant did some calculations and asked, “That means 100?” The 1st Defendant replied “100” and further said “also in cash.” The 2nd Defendant then mentioned Hang Fat and said “You people have already received it?” The 1st Defendant indicated that he had no idea and would seek confirmation from the company.", "zh-HK": "「第一被告人初時提及捷成大廈那宗交易要付佣金，該怎麼辦。第二彼告人的回應是，有關賣家不肯付佣金給中原，也批評 Salomy 處理不當(註: Salomy 是控方第三證人的英文名字)。後來第一被告人對第二被告人說，現在只收得一方的佣金，問他是否覺得需要調整一下，Salomy 曾對他說：這宗交易有很多人需要分佣金，她有些不服氣，要求他和第二被告人商量。第二被告人回應說：『我已經做了我要做的。』第一被告人提出減 10%，第二被告人說『10%? 廿個喇喎，減 100,000 元我就冇所謂。』最後，第二被告人提出：減番 $150,000。在計算後，第二被告人說『即係 100 喇?』，第一被告人回應說『100 喇。』，也說『都係老現。』。此後，第二被告人提起恆發，並說『收咗喇，你哋?』，第一被告人表示不知情，會向公司求證。」" } }, { "doc_id": 86, "seg_id": 18, "translation": { "en": "On the agreed facts, the end purchaser of Jebsen Building was Li & Fung (1937) and Centaline was the agent of that property transaction.", "zh-HK": "根據同意案情，「捷成大廈」的最終買家是「利豐(1937)」，而「中原」是該宗物業交易的物業代理。" } }, { "doc_id": 86, "seg_id": 19, "translation": { "en": "On 9 August 2006, Centaline paid $1,000,000 to one Wang Him Investment Company Ltd (宏謙投資有限公司) (hereinafter ‘Wang Him’) for the transaction. The 1st Applicant was a shareholder and director of Wang Him. The bank records showed that on 11 August 2006 the 1st Applicant withdrew cash in the sum of $800,000 from his bank account.", "zh-HK": "2006 年 8 月 9 日，「中原」就該宗物業交易支付了 $1,000,000給「宏謙投資有限公司」（「宏謙」）。第一申請人是「宏謙」的股東及董事。根據銀行記錄，第一申請人在 2006 年 8 月 11 日從他的銀行戶口提取了 $800,000 的現金。" } }, { "doc_id": 86, "seg_id": 20, "translation": { "en": "On the same day, the 2nd Applicant asked the sixth prosecution witness (PW6) to fetch something for him and PW6 did so accordingly. They had been friends for 7 to 8 years and also had business dealings with each other.", "zh-HK": "同日，第二申請人請求控方第六證人（第六證人）替他拿取一些物件，第六證人答應他的要求。雙方是認識了七、八年的朋友，彼此亦有生意往來。" } }, { "doc_id": 86, "seg_id": 21, "translation": { "en": "On the afternoon of the same day, one Mr. Chan phoned PW6 and made an appointment for a meeting, and they met afterwards. They were tailed by ICAC officers. PW6 boarded a vehicle driven by the 1st Applicant. The 1st Applicant handed to PW6 a paper bag containing banknotes and told him to pass the paper bag to the 2nd Applicant. PW6 then alighted the vehicle and went to a bank. He counted the banknotes in the bag, the total amount of which was $800,000. He phoned the 2nd Applicant, asking him how the money was to be dealt with. The 2nd Applicant instructed him to deposit the money with the bank. PW6 kept cash in the sum of $240,000 for his own use and deposited the remaining cash into nine different bank accounts in his name or in his wife’s name.", "zh-HK": "當日下午，一名姓陳的男子致電第六證人約他會面，之後雙方會面。廉署派員跟蹤兩人。第六證人登上由第一申請人駕駛的一輛汽車，第一申請人將一個裝着鈔票的紙袋交給第六證人，並囑咐他將該紙袋交給第二申請人。第六證人之後下車，前往一間銀行，他點算袋內的鈔票，其總數為 $800,000。他致電第二申請人，問他如何處理該筆款項，第二申請人吩咐他將該筆款項存入銀行。第六證人將 $240,000現金留給自己使用，其餘的款項分別存入他自己和他的妻子的九個不同銀行戶口內。" } }, { "doc_id": 86, "seg_id": 22, "translation": { "en": "When the 2nd Applicant asked PW6 to fetch something for him, he gave PW6 $500 to buy a calling card to facilitate communication. PW6 then purchased a calling card for a phone number 67482689. The records of the telephone company showed that at 1:29 p.m. on 11 August 2006 PW6 phoned the 2nd Applicant using that phone number. In addition, before PW6 met the 1st Applicant, i.e. between 2:14 p.m. and 3:12 p.m., he phoned the 1st Applicant thrice using the same phone number. PW6 confirmed that he had telephone conversations with the 1st and 2nd Applicants in the said period of time and that he phoned the 2nd Applicant using the said phone number at 5:17 p.m. of the same day.", "zh-HK": "在第二申請人要求第六證人替他拿取物件時曾給他 $500去購買一張電話卡以便聯絡。第六證人於是購買了一張號碼為 67482689 的電話卡。根據電話公司記錄，在 2006年 8月11日下午1時29分第六證人曾以該電話號碼致電第二申請人。另外，第六證人和第一申請人會面之前，即下午2時14分至3時12分這段時間內，第六證人亦曾以該電話號碼三次致電第一申請人。第六證人證實他於該時段內曾分別與第一申請人和第二申請人通過電話及於同日下午5時17分以該電話號碼致電第二申請人。" } }, { "doc_id": 86, "seg_id": 23, "translation": { "en": "Acting on the 2nd Applicant’s instructions, between 12 August and 5 September 2006, PW6 gave money totalling $130,000 to the 2nd Applicant on three occasions, transferred a sum exceeding $170,000 to five persons who had lent money to the 2nd Applicant, repaid (on behalf of the 2nd Applicant) sums owing by the 2nd Applicant to two banks, and deposited $50,000 into a bank account held by the seventh prosecution witness (PW7). PW7 testified that upon PW6’s request he opened a bank account for use by the 2nd Applicant. PW6 said that apart from borrowing approximately $200,000 from the 2nd Applicant, he had already returned to the 2nd Applicant the remaining sum.", "zh-HK": "第六證人依照第二申請人的指示在 2006 年 8 月 12 日至 9 月 5 日期間將 $130,000分三次交給第二申請人、將一筆逾 $170,000 的款項轉賬給曾經借錢給第二申請人的五名人士、替第二申請人還款給兩間銀行及將 $50,000 存入控方第七證人的銀行戶口內。第七證人供稱他是應第六證人的要求開設一個銀行戶口以供第二申請人使用。第六證人指他除了向第二申請人借了約 $200,000 外，其餘的款項已全數交還給第二申請人。" } }, { "doc_id": 86, "seg_id": 24, "translation": { "en": "The 2nd Applicant neither gave evidence in court nor called any witness.", "zh-HK": "第二申請人沒有出庭作證及沒有傳召證人。" } }, { "doc_id": 86, "seg_id": 25, "translation": { "en": "Judge Wong’s assessment of PW6", "zh-HK": "黃法官對第六證人的評核" } }, { "doc_id": 86, "seg_id": 26, "translation": { "en": "In paragraph 54 of his judgment, Judge Wong wrote:", "zh-HK": "黃法官在判案書第 54 段這樣說：" } }, { "doc_id": 86, "seg_id": 27, "translation": { "en": "Having considered the evidence as a whole, although in my view PW6 had indeed concealed certain facts, his testimony that in receiving and handling the sum of money he was merely acting upon the 2nd Defendant’s instructions is, in my view, credible and reliable.", "zh-HK": "「考慮了整體證據，雖然，本席認為，控方第六證人並非沒有隱瞞一些事實，但是，他所說的收取和處理這筆金錢是依照第二被告人的指示而行事，這方面的證詞，本席認為是可信、可靠的。」" } }, { "doc_id": 86, "seg_id": 28, "translation": { "en": "Before making the above findings, Judge Wong had taken into account the fact that PW6 was a witness under immunity and might have given false evidence in order to protect his own interest. Judge Wong had also considered the following parts of the evidence given by PW6 which were unreasonable and incorrect:", "zh-HK": "黃法官在作出上述裁決之前曾考慮過第六證人是一名特赦證人及他可能為了保障自己的利益而作出不真實的證供。黃法官亦考慮過以下第六證人所作出的部分不合理及不正確的證供：" } }, { "doc_id": 86, "seg_id": 29, "translation": { "en": "When the 2nd Applicant asked him to collect something for the 2nd Applicant, he did not enquire of the 2nd Applicant about what it was that he had to collect.", "zh-HK": "當第二申請人要求他替第二申請人拿取物件時，他沒有向第二申請人詢問所要拿取的物件是甚麼。" } }, { "doc_id": 86, "seg_id": 30, "translation": { "en": "When he discovered that it was banknotes that he had collected, he did not immediately contact the 2nd Applicant or return home. Instead, he went to a bank and counted the banknotes thereat.", "zh-HK": "當他發現他收取的物件是鈔票時，他不是立刻聯絡第二申請人或折返家中，而是到一間銀行點算鈔票。" } }, { "doc_id": 86, "seg_id": 31, "translation": { "en": "He testified that after he counted the banknotes he phoned the 2nd Applicant. However, according to the telephone records, the two of them did not have any telephone conversation during the relevant period.", "zh-HK": "雖然他供稱他在點算鈔票後曾致電第二申請人，但根據電話記錄，兩人在有關時間內並沒有通過電話。" } }, { "doc_id": 86, "seg_id": 32, "translation": { "en": "When the 2nd Applicant instructed him to deposit the received sum into a bank account, he unilaterally decided to deposit the sum into nine different bank accounts for the reason that ‘[using] bank accounts would appear to be better, safer and more convenient.’", "zh-HK": "當第二申請人指示他將收取到的款項存入銀行戶口內，他竟然以「戶口看來好一點，這較安全和方便」的理由而自行決定將該筆款項分別存入九個不同的銀行戶口內。" } }, { "doc_id": 86, "seg_id": 33, "translation": { "en": "He admitted that from the said sum he had taken more than $200,000 to his residence. When being cross-examined as to whether he was the owner of the said $200,000 odd, he prevaricated.", "zh-HK": "他承認他曾將該筆款項中的二十多萬元帶返自己的住所內。當他被盤問是不是該二十多萬元的物主時，他支吾其詞。" } }, { "doc_id": 86, "seg_id": 34, "translation": { "en": "He did not clearly indicate whether he had given the 2nd Applicant a written record showing how the said sum had been handled.", "zh-HK": "他沒有清楚表明他有否將一份處理有關款項的記錄交給第二申請人。" } }, { "doc_id": 86, "seg_id": 35, "translation": { "en": "He could not tell the exact date on which he gave the sum of $50,000 to the 2nd Applicant.", "zh-HK": "他不能確實說出他將五萬元交給第二申請人的日期。" } }, { "doc_id": 86, "seg_id": 36, "translation": { "en": "He exercised his right of silence and refused to answer the question of whether his evidence in court was false, and when Defence Counsel put to him that the 2nd Applicant had never instructed him to collect the $800,000, he again exercised his right and refused to respond.", "zh-HK": "他行使權利拒絕回答他在庭上作出的證供是否虛假的提問及拒絕回應辯方大律師提出第二申請人根本沒有指使他去拿取 $800,000 的指控。" } }, { "doc_id": 86, "seg_id": 37, "translation": { "en": "In respect of the absence any telephone record to show that PW6 and the 2nd Applicant had any telephone conversation during the relevant period, Judge Wong said:", "zh-HK": "黃法官就電話記錄沒有顯示第六證人和第二申請人在有關時間內通過電一事說：" } }, { "doc_id": 86, "seg_id": 38, "translation": { "en": "While not thinking lightly of the significant of the situation, I have considered the possibility that the two of them might have used another phone number and the possibility that the instruction alleged by PW6 was in fact not obtained at that stage.", "zh-HK": "本席沒有輕視這情況的重要性，但也顧及兩人是否使用了其他電話號碼的可能性，或控方第六證人所稱的指示並非在那階段所得到的可能性。" } }, { "doc_id": 86, "seg_id": 39, "translation": { "en": "Judge Wong opined that PW6 did not candidly recount the truth in court because he was well aware that the sum that he handled was obtained by improper means.", "zh-HK": "黃法官認為第六證人沒有在庭上坦白說出真相是由於他明知所處理的款項是經不適當的途徑得來的。" } }, { "doc_id": 86, "seg_id": 40, "translation": { "en": "As regards PW6’s evidence that he took upon himself the decision to deposit the sum of money into nine different bank accounts, Judge Wong said:", "zh-HK": "黃法官就第六證人供稱他是自作主張，將該筆款項分別存入在九個不同的銀行戶口內的證供這樣說：" } }, { "doc_id": 86, "seg_id": 41, "translation": { "en": "In my view, he merely failed to explain candidly why he had done so. His conduct was akin to that of many people who know that the money they are handling is of dubious origin and are determined to conceal how the money has been handled.", "zh-HK": "本席認為，他只是沒有坦白地解釋他為何如此做而已，他的表現和很多知道自己在處理的金錢是有問題的、或無論如何想隱瞞這筆金錢的處理的人的做法，是相若的。" } }, { "doc_id": 86, "seg_id": 42, "translation": { "en": "As to when PW6 gave the sum of $50,000 to the 2nd Applicant, Judge Wong took the view that he might have made a mistake in recalling the date of the incident.", "zh-HK": "至於第六證人是於何時將五萬元交給第二申請人的問題，黃法官認為他可能記錯了發生該事件的日期。" } }, { "doc_id": 86, "seg_id": 43, "translation": { "en": "The first ground of appeal", "zh-HK": "第一上訴理由" } }, { "doc_id": 86, "seg_id": 44, "translation": { "en": "The first ground of appeal advanced by the 2nd Applicant relates to whether he had received $800,000 from PW6. Mr. Wong Man Kit SC and Mr. Edwin Choy, Counsel for the 2nd Applicant, submitted that Judge Wong had not only made an erroneous finding on PW6’s credibility but had also adopted speculative evidence and a wrong standard of proof. The 2nd Applicant highlighted the following two points:", "zh-HK": "第二申請人的第一項上訴理由是關於他有沒有向從第六證人收取過 $800,000。代表第二申請人的黃敏杰資深大律師及蔡維邦大律師指黃法官就第六證人的可信性作出錯誤的裁定及引用猜測性的證據和錯誤的舉證標準。第二申請人強調以下兩點：" } }, { "doc_id": 86, "seg_id": 45, "translation": { "en": "The telephone records did not show that during the material period PW6 had any telephone conversation with the 2nd Applicant.", "zh-HK": "電話記錄沒有顯示第六證人在有關時段內和第二申請人通過電話。" } }, { "doc_id": 86, "seg_id": 46, "translation": { "en": "PW6 refused to answer questions put to him by defence lawyers in court.", "zh-HK": "第六證人在庭上拒絕回答辯方律師提出的提問。" } }, { "doc_id": 86, "seg_id": 47, "translation": { "en": "The 2nd Applicant relied on the Court of Final Appeal case of Ong Chun Ying v. HKSAR (2007) 10 HKCFAR 318. The defendant in that case was charged with and convicted on one count of assault occasioning actual bodily harm. At trial, the victim gave unequivocal evidence that she was attacked by the defendant 10 minutes after she returned to a certain unit at 10 a.m. on the day of the incident. On the other hand, the defendant put forward an alibi that between 10 and 11 a.m. on the material day he was physically at a restaurant and it would take approximately 30 minutes for him to travel to the scene of the crime from the restaurant. The magistrate convicted the defendant but said that it was ‘not possible to be sure as to exactly when this assault is alleged to have taken place’ and concluded that the defendant’s alibi covered ‘only part of the material period’.", "zh-HK": "第二申請人引用終審法院案例 Ong Chun Ying v. HKSAR [2007] 10 HKC FAR 318的案例。該案的被告人被控一項「襲擊致造成身體傷害罪」及被判處罪名成立。原審期間，受害人作出毫不含糊的證供，指她於案發當日上午 10 時返回某單位後十分鐘遭被告人襲擊。被告人則提出不在犯罪現場的證據，指自己於當日上午10 時至11 時之間身處某家酒樓，而從該酒樓前往案發地點需時約 30 分鐘。原審裁判官判被告人罪名成立，但同時裁定“本席無法肯定涉案襲擊被指發生的確實時間”，並斷定被告人所提出的不在犯罪現場的證據“只涵蓋關鍵時段的一部分”。" } }, { "doc_id": 86, "seg_id": 48, "translation": { "en": "The Court of Final Appeal allowed the defendant’s appeal and quashed the conviction. The views of the Court of Final Appeal can be found in paragraph 1 of the summary of holdings:", "zh-HK": "終審法院判被告人上訴得直，撤銷定罪判決。終審法院的觀點可見於該判案書批註的第一段：" } }, { "doc_id": 86, "seg_id": 49, "translation": { "en": "When a court says in a criminal case that it was not sure of something, that is normally said in the context of acquitting an accused on the basis of a reasonable doubt. Here, the view that it was “not possible to be sure as to exactly when this assault is alleged to have taken” formed a vital part of the thought process by which the Magistrate convicted the defendant, which represented a view of the facts that was unsupported by evidence. Thus, the defendant was denied the benefit of a reasonable doubt on a crucial matter. [see paras. 11, 15]", "zh-HK": "「在刑事案件中，每當法庭指出它未能肯定某些事項，這通常是指基於合理疑點而判處被告人無罪。在本案中，“本席無法肯定涉案襲擊被指發生的確實時間”的說法是原審裁判官達致定罪判決的思路歷程的重要一環，但該說法不獲呈堂證據支持。因此，被告人在關鍵事項上未能因合理疑點而獲益。（見第 11 及 15 段）」" } }, { "doc_id": 86, "seg_id": 50, "translation": { "en": "The 2nd Applicant pointed out that whether PW6 had phoned him or not was highly crucial to the prosecution case because the prosecution wholly relied on PW6’s evidence to prove that PW6 had collected and handled the $800,000 for and as instructed by the 2nd Applicant. Thus, the communication between the 2nd Applicant and PW6 during the material period was highly crucial to that allegation.", "zh-HK": "第二申請人指第六證人有否致電給他與控方的案情有重要的關係，理由是控方是完全依賴第六證人的證供去證明第六證人是按照他的指示去拿取 $800,000 及替他處理該筆款項，因此第六證人與他在案發時段內的溝通對該項指控是非常重要。" } }, { "doc_id": 86, "seg_id": 51, "translation": { "en": "The 2nd Applicant submitted that, in respect of this issue, Judge Wong had erred in the same way as the magistrate in Ong Chun Ying had. In face of the inconsistency between PW6’s evidence and the telephone records, Judge Wong had not only denied the 2nd Applicant the benefit of doubt but had also held, in the absence of evidence and upon sheer speculation, that PW6 and the 2nd Applicant might have used another phone number or that the 2nd Applicant might have instructed PW6 at some other point of time. The 2nd Applicant contended that, as Judge Wong could not be certain at what time and using what number PW6 had talked to the 2nd Applicant on the phone, the telephone records relied on by the 2nd Applicant should have been accorded substantive reasonable doubt in the same manner as the alibi put forward by the defendant in Ong Chun Ying had been, but Judge Wong had failed to give the 2nd Applicant the benefit of doubt.", "zh-HK": "第二申請人指黃法官就這個議題與 Ong Chun Ying 一案中的原審法官所犯的錯誤是相同的。縱使第六證人的證供與電話通話記錄出現矛盾，他不但沒有將疑點利益給予第二申請人，反而在沒有證據的基礎下單憑推測來裁定第六證人與第二申請人有可能使用過其他電話號碼，或第二申請人有可能在另一個時段指示第六證人行事。第二申請人指黃法官根本不能肯定第六證人在何時用那一個電話與第二申請人通話，所以第二申請人所依賴的電話記錄就應如 Ong Chun Ying 一案的被告人所提出的不在場證供被接納為實質的合理疑點，但黃法官沒有將疑點利益歸予第二申請人。" } }, { "doc_id": 86, "seg_id": 52, "translation": { "en": "The 2nd Applicant further submitted that, given PW6’s refusal to answer the question of whether he had given false evidence, Judge Wong was not accepting PW6’s evidence beyond reasonable doubt.", "zh-HK": "另外，第二申請人指既然第六證人拒絕回答他是否作出虛假證供的提問，黃法官就不是在毫無合理疑點的情況下接納第六證人的証供。" } }, { "doc_id": 86, "seg_id": 53, "translation": { "en": "Our views", "zh-HK": "本庭意見" } }, { "doc_id": 86, "seg_id": 54, "translation": { "en": "In fact, in the circumstances of the case as a whole, the prosecution had in our view provided sufficient evidence to support the allegation that the 2nd Applicant had received the bribe of $800,000. First, as mentioned above, the 1st Applicant met the 2nd Applicant on 9 May 2006. Apart from giving a brief summary of the particulars of the meeting (see the extract above), Judge Wong made the following findings on the details of the conversation at the meeting:", "zh-HK": "其實，綜觀案情，本庭認為控方已提出了充分的證據去支持第二申請人收受 $800,000 賄款的指控。首先，正如上文所述，第一申請人與第二申請人曾於 2006 年 5 月 9 日會面，黃法官除了就雙方會談內容作出簡述（已節錄於上文）外，他亦就有關會面的談話內容作出以下的裁決：" } }, { "doc_id": 86, "seg_id": 55, "translation": { "en": "In their conversation, the two of them mentioned the transaction over Jebsen Building. The 1st Defendant told the 2nd Defendant that as no commission could be obtained from the vendor, he requested the 2nd Defendant to lower the amount. During the conversation, the 2nd Defendant said that the sum could be reduced by $150,000. The 1st Defendant mentioned “231” and the 2nd Defendant, who seemed to be making some calculations, said “just take 230, that is 115, that is 100.” Subsequently, the 1st Defendant also suggested 80%.’", "zh-HK": "雙方在談話時提及捷成大廈的交易，第一被告人對第二被告人說，因為收不到賣家的佣金，所以要求第二被告人減低金額。談話的時候，第二被告人曾說可減 $150,000，第一被告人提及「231」，第二被告人似在計算間說出 「當 230 喇，即係 115 喇，即係 100 喇。」，之後第一被告人也提出八成。" } }, { "doc_id": 86, "seg_id": 56, "translation": { "en": "The prosecution submitted that “231” was the $2,310,000 commission that Centaline was supposed to receive in the first place (note: the vendor had all along agreed to pay Centaline 1% of the purchase price, and prior to reaching a final agreement, the vendor and purchaser had once agreed that the purchase price of the property upon completion was $231,000,000). “230” meant $2,300,000, a round figure of the purchase price of the property. Half of this amount was “115”. Reduced by $115,000, the figure would become $1,000,000, and 80% thereof would be $800,000. $800,000 was precisely the amount the 2nd Defendant received from the 1st Defendant. In my view, this was no sheer coincidence but was precisely the benefit that the 2nd Defendant received from the 1st Defendant as a result of the transaction. The fact that he arranged for PW6 to collect the money indicates that he knew the 1st Defendant would give him the money.", "zh-HK": "控方指出，「231」正是指中原最初應收到的佣金 $2,310,000 (註：買家一直同意支付中原成交價 1% 的佣金，而在最終協議達成之前，買賣雙方一度同意成交價為 231,000,000 元)，「230」 是指 $2,3000,000，取成交價的整數，這數的一半是 115，再減 $150,000便是 $1,000,000，再計八成便是 $800,000。$800,000 正是第二被告人從第一被告人處收到的金額，本席認為這絕非偶然，正是第二被告人因這宗交易從第一被告人收到的利益。他安排控方第六證人前往領取，反映他是知道第一被告人會給他這筆金錢的。」" } }, { "doc_id": 86, "seg_id": 57, "translation": { "en": "The above conversation lent support to the prosecution’s case that the 1st Applicant had agreed to give the 2nd Applicant $800,000 as commission.", "zh-HK": "上述談話內容支持了控方提出第一申請人是同意給予第二申請人 $800,000回佣的指控。" } }, { "doc_id": 86, "seg_id": 58, "translation": { "en": "According to PW6’s evidence, as instructed by the 2nd Applicant, PW6 met the 1st Applicant, collected $800,000 from him and deposited the money into bank accounts (except that he retained $240,000 for his own use) and gave the money to some other people.", "zh-HK": "根據第六證人的證供，他依照第二申請人的指示去與第一申請人會面及向他收取 $800,000、把款項存入銀行（除了其中 $240,000留給自己使用外）及將款項交給其他人士。" } }, { "doc_id": 86, "seg_id": 59, "translation": { "en": "The following items of evidence reinforced the credibility of the above testimony:", "zh-HK": "以下的證據也支持了上述証供的可信性：" } }, { "doc_id": 86, "seg_id": 60, "translation": { "en": "Before he met PW6, the 1st Applicant went to a bank to withdraw $800,000 in cash. This fact was consistent with the earlier testimony that the 1st Applicant had discussed with the 2nd Applicant about offering the 2nd Applicant a bribe of $800,000 and that PW6 had collected $800,000 from the 1st Applicant.", "zh-HK": "第一申請人與第六證人會面之前先到銀行提取了 $800,000現金，這事實與早前第一申請人與第二申請人商討向第二申請人提供 $800,000 賄款及第六證人向第一申請人收取了 $800,000 的證供吻合。" } }, { "doc_id": 86, "seg_id": 61, "translation": { "en": "The telephone records showed that on the day PW6 collected the sum, he had a number of telephone conversations with the two applicants.", "zh-HK": "電話記錄顯示第六證人在領取鈔票當日多次與兩名申請人通過電話。" } }, { "doc_id": 86, "seg_id": 62, "translation": { "en": "As PW6 and the 1st Applicant had never met, it was reasonable to infer that the meeting between the two of them had been arranged by the 2nd Applicant and that it was the 2nd Applicant who had instructed PW6 to participate in the matter.", "zh-HK": "第六證人與第一申請人素未謀面，因此該次兩人會面是由第二申請人安排及是他指使第六證人參與其中的推論是合理的。" } }, { "doc_id": 86, "seg_id": 63, "translation": { "en": "PW6 subsequently transferred the money to the accounts of other people who, as it transpired, were all related to the 2nd Applicant.", "zh-HK": "第六證人其後將款項轉賬到其他人士的戶口內，這些人士都是與第二申請人有關連的。" } }, { "doc_id": 86, "seg_id": 64, "translation": { "en": "This being the case, Judge Wong’s finding that PW6 had contacted the 2nd Applicant using another phone number was not based on speculation. We do not think that the propositions in Ong Chun Ying applied to the present case, because the point of time when PW6 obtained the 2nd Applicant’s instructions was not a key issue in the present case.", "zh-HK": "在這情況下，黃法官裁定第六證人曾以其他電話號碼與第二申請人聯絡並不是基於猜測。本庭不認為 Ong Chun Ying 一案的論點適用於本案，因為第六證人在何時取得第二申請人的指示並非本案的重點。" } }, { "doc_id": 86, "seg_id": 65, "translation": { "en": "It is true that the witness’s refusal to answer the question of whether he was giving false evidence, as well as his failure to respond to the allegation that the 2nd Applicant had never instructed him to collect the $800,000, would materially affect the credibility of his evidence. That said, we have to consider the relevant factual background. The offences in respect of which PW6 had been granted immunity related merely to the charges pertaining to the present case. The immunity did not cover the offence of perjury as a prosecution witness. In putting forward the relevant allegations, Defence Counsel cross-examined PW6 about the nature of the immunity and requested Judge Wong to give appropriate warning to PW6. The Judge reminded PW6 of his right to seek permission from the court not to answer a question if he considered that the evidence he was to give in answering the question might incriminate him. The Judge then asked PW6 whether he would exercise his right and seek permission not to answer the relevant question or whether he was prepared to answer the question. In these circumstances, we take the view that PW6 might have refused to answer questions or enquiries because he thought that he was entitled not to answer them, not because he was giving false evidence. Obviously, it was only after observing PW6’s manner and demeanour when he testified at trial and considering various items of forceful circumstantial evidence of PW6 having followed the 2nd Applicant’s instructions that Judge Wong held that PW6’s evidence on major issues was credible and reliable. We see nothing improper with the Judge’s findings.", "zh-HK": "無疑，當該名證人拒絕回答其所作的供詞是否虛假的提問及不回應第二申請人沒有指使他去收取 $800,000 的指控是會實質地影響他的供詞的可信性，但本庭必須考慮有關事情的背景。第六證人被特赦的罪行只是涉及本案的控罪，並不包括他作為控方證人在法庭上作出虛假證供的罪行。辯方大律師在作出有關的指控時曾盤問第六證人有關特赦內容及要求黃法官向第六證人作出適當的警告。黃法官提醒第六證人若他認為他作出的證供可能會構成令他入罪的證據，他是有權向法庭申請不回答有關的提問。黃法官接着問他會否行使該權利向法庭申請不回答問題或者是回答問題。本庭認為在這情況下第六證人拒絕回答提問及質詢可能是因為他認為自己有權不作答而不是因為他作過虛假供詞。明顯地，黃法官在審訊時觀察了第六證人在作供時的神態和表現，他也考慮過各項針對第六證人是依照第二申請人的指示而行事的強而有力環境證供後才裁定第六證人在主要事項上所作出的證供是可信及可靠。本庭不認為黃法官的裁決是錯誤的。" } }, { "doc_id": 86, "seg_id": 66, "translation": { "en": "The second ground of appeal", "zh-HK": "第二上訴理由" } }, { "doc_id": 86, "seg_id": 67, "translation": { "en": "The 2nd Applicant submitted that in the absence of any evidential basis, Judge Wong found that the 2nd Applicant, as an agent of Li & Fung Trading, had received advantages so the Li & Fung (1937) completed the sale and purchase of Jebsen Building and engaged Centaline as estate agent for that sale and purchase transaction.", "zh-HK": "第二申請人指黃法官在毫無證據的基礎下裁定第二申請人身為「利豐貿易」的代理人收取利益致使「利豐(1937)」完成「捷成大廈」的買賣交易及聘用「中原」為「捷成大廈」買賣交易的地產代理。" } }, { "doc_id": 86, "seg_id": 68, "translation": { "en": "The 2nd Applicant also argued that Charge 8 was defective, the reason being that the 2nd Applicant was an agent of Li & Fung at the material time and, although he had received advantages, he had only caused a third party company (not being the principal), namely Li & Fung (1937) to engage Centaline as the estate agent, and this did not constitute any offence under section 9(1)(a) of the Prevention of Bribery Ordinance.", "zh-HK": "另外，第二申請人指第八項控罪是有缺陷的，因為第二申請人於相關時間為「利豐貿易」的代理人，縱然他有收取利益，他亦只有致使一間第三者（非主事人）公司，即「利豐(1937)」聘用「中原」為地產代理，這並沒有觸犯《防止賄賂條例》第 9(1)(a) 條的罪行。" } }, { "doc_id": 86, "seg_id": 69, "translation": { "en": "Particulars of Charge 8", "zh-HK": "第八項控罪詳情" } }, { "doc_id": 86, "seg_id": 70, "translation": { "en": "The particulars of Charge 8 were as follows:", "zh-HK": "第八項控罪的控罪詳情是" } }, { "doc_id": 86, "seg_id": 71, "translation": { "en": "Ho Wai-jon [the 2nd Applicant], being an agent, namely General Manager of Li & Fung (Trading) Limited, on or about 11 August 2006, in Hong Kong and without lawful authority or reasonable excuse, accepted an advantage, namely a gift, loan, fee, reward or commission consisting of a sum of HK$800,000.00, from CHAN Ngan-lau [the 1st Applicant], as an inducement to or reward for or otherwise on account of the said Ho Wai-jon doing or having done any act in relation to his principal’s affairs or business, namely causing Li & Fung (1937) Limited to engage Centaline Property Agency Limited as an agent in a property transaction (namely the purchase of the property at Nos. 924-926, Cheung Sha Wan Road, Kowloon, Hong Kong).", "zh-HK": "何偉中[第二申請人]，作為代理人，即利豐(貿易)有限公司的總經理，於或約於 2006 年 8 月 11 日在香港，無合法權限或合理辯解而從陳雁樓[第一申請人]接受利益，即接受形式為一筆港幣 800,000.00 元的饋贈、貸款、費用、報酬或佣金，作為該何偉中作出或曾經作出與其主事人的事務或業務有關的作為(即致使利豐(1937)有限公司在一宗物業交易(即購買香港九龍長沙灣道 924-926 號的物業)中聘用中原地產代理有限公司作為代理)的誘因或報酬，或由於該何偉中作出或曾經作出上述作為而接受該利益。" } }, { "doc_id": 86, "seg_id": 72, "translation": { "en": "The relationship among the companies", "zh-HK": "各公司關係" } }, { "doc_id": 86, "seg_id": 73, "translation": { "en": "We should start by elucidating the relationship among the companies mentioned in Charge 8, the 2nd Applicant’s scope of duties, and the background of Li & Fung (1937) which was the ultimate buyer of Jebsen Building. According to Dr. William K. Fung (ninth prosecution witness, PW9), Group Managing Director of Li & Fung Group, Li & Fung Trading was a wholly owned subsidiary of Li & Fung Limited, and Li & Fung (1937) was a shareholder of Li & Fung Limited. Li & Fung Trading carried on trading business and, adopting the same policy as that of Li & Fung Limited, did not own any real property. Should Li & Fung Group need to purchase real property, this would be done through Li & Fung (1937). The 2nd Applicant was employed by Li & Fung Trading and, as such, his duties were to liaise with various departments of the company to ascertain their needs in respect of land use, to look for suitable real properties and make recommendations to the company in this regard.", "zh-HK": "本庭首先交代第八項控罪所提及的各公司的關係、第二申請人的職權及「捷成大廈」交易最終買主是「利豐(1937)」的背景。根據利豐集團的集團總經理(Group Managing Director)馮國倫（即控方第九證人）所說，「利豐貿易」是「利豐有限公司」的子公司，由後者全資擁有。「利豐(1937)」是「利豐有限公司」的股東。「利豐貿易」從事貿易生意，它的政策和「利豐有限公司」一樣，不會擁有物業，利豐集團如有需要會由「利豐(1937)」購買物業。第二申請人的僱主是「利豐貿易」。他的職責是聯絡公司內各部門以了解用地需要、物色合適的物業及向公司作出建議。" } }, { "doc_id": 86, "seg_id": 74, "translation": { "en": "Mr. Robert Adam is the Chief Operating Officer of Li & Fung Limited and a director of Li & Fung Trading. In 2004, he established a Global Property Committee within Li & Fung Group. The Committee did not have legal status, nor was it a separate legal person. The Committee’s duties covered the entire Group as it was responsible for looking for suitable office premises for the various companies within the Group. Although the 2nd Applicant was not a member of the Committee, he was assigned to look for suitable real properties and make recommendations thereon to the Committee. The 2nd Applicant was not employed by the Committee; he was merely employed by Li & Fung Trading to look for real properties in the sole capacity as an agent of Li & Fung Trading.", "zh-HK": "Robert Adam是「利豐有限公司」的首席營運經理(Chief Operating Officer)及「利豐貿易」的董事。他在 2004 年成立了利豐集團的「全球物業委員會」(Global Property Committee)。這委員會既沒有法定地位，也不是獨立法人，它的職能涵蓋整個集團，負責為集團內各公司物色合適的辦公處所。雖然第二申請人並非這委員會的成員，但他被委派物色合適的物業，並推介給委員會。第二申請人並非受僱於該委員會，他只是受僱於「利豐貿易」，進行物色物業的工作，他唯一的身分是「利豐貿易」的代理人。" } }, { "doc_id": 86, "seg_id": 75, "translation": { "en": "Ms. Belinda Fung was a person-in-charge of Li & Fung (1937). According to her witness statement, as Li & Fung Group was in need of land in order to expand its business, the 2nd Applicant was assigned to look for real properties for lease or for sale in Cheung Sha Wan area on behalf of the Group. After the 2nd Applicant recommended Jebsen Building to the Group, as the landlord indicated that the property was only available for sale, the transaction was, pursuant to the established policy of the Group, passed to Li & Fung (1937) for handling. When Ms. Belinda Fung took over the matter, the 2nd Applicant told her that Centaline was the agent in the said property transaction.", "zh-HK": "Belinda Fung 是「利豐(1937)」的負責人。根據她的證人陳述書，利豐集團因要擴張業務，需要用地，因而委派第二申請人在長沙灣一帶物色一些租賃或出售的物業以供集團使用。當第二申請人向集團建議「捷成大廈」後，由於業主表示只會將該物業出售，基於利豐集團的一貫政策，該項交易就轉交「利豐(1937)」接手處理，而當 Belinda Fung 接手時，第二申請人告訴她「中原」是該物業的代理。" } }, { "doc_id": 86, "seg_id": 76, "translation": { "en": "Judge Wong’s ruling", "zh-HK": "黃法官的裁決" } }, { "doc_id": 86, "seg_id": 77, "translation": { "en": "In his judgment, Judge Wong had this to say:", "zh-HK": "黃法官在判案書這樣說：" } }, { "doc_id": 86, "seg_id": 78, "translation": { "en": "After 27 April 2006, the 2nd Defendant was no longer involved in the matter, which was handled solely by Belinda Fung on behalf of Li & Fung 1937. However, without the initial participation of Li & Fung Trading, this transaction would never have come about, nor would Centaline have become the agent of the transaction and hence been able to earn a commission. The 1st Defendant gave the 2nd Defendant this sum of money as a token of appreciation, and this was something which the 2nd Defendant would certainly have understood.", "zh-HK": "雖然，第二被告人在 06 年 4 月 27 日之後，已沒有跟進，而交易已由 Belinda Fung 全權代表利豐 1937，可是沒有利豐貿易最初的參與，不會有這宗交易，中原也不會成為交易的代理得到佣金，第一被告人給第二被告人這筆金錢是為了報答他，第二被告人一定了解。" } }, { "doc_id": 86, "seg_id": 79, "translation": { "en": "In the present case, there was no direct and clear evidence on the circumstances in which Centaline continued to be the estate agent. It would appear from Belinda Fung’s witness statement that Centaline was initially engaged by Li & Fung Trading and was then engaged by Li & Fung 1937. In the circumstances, I am of the view that it was Li & Fung Trading which caused [the subsequent events] and it was on this basis that the 2nd Applicant received the sum of money, and this must have been his intention and understanding.", "zh-HK": "中原在甚麼情況下繼續作為地產代理，案中沒有直接和清晰的證據，從 Belinda Fung 在書面陳述書所述，應該是利豐貿易起初任用中原，利豐 1937 繼續任用，本席認為，以本案的情況，構成利豐貿易的致使，第二被告人收取這筆金錢亦基於此，這也必是他的心意和理解。" } }, { "doc_id": 86, "seg_id": 80, "translation": { "en": "I find that the sum of money received by the 2nd Defendant from the 1st Defendant constitutes an advantage within the meaning of the Ordinance, and that he received the advantage as an agent of Li & Fung Trading. When he received the money, he must have fully understood that it was a reward in relation to his having done an act concerning his principal’s affairs or business, namely causing Li & Fung 1937 to engage Centaline as the agent for the relevant property transaction, or that it was a benefit given to him for his having done the said act. This, in my view, is the only reasonable inference that can be drawn from the evidence as a whole.", "zh-HK": "本席裁定，第二被告人從第一被告人收取這筆金錢，是條例所列的利益，他是以利豐貿易的代理人的身分，收取這利益的。他在收取的時候，一定完全理解，這是作為他曾經作出與其主事人的事務或業務有關的作為，即致使利豐 1937 在涉案的物業交易中聘用中原為代理的報酬，或由於他曾經作出上述作為而付出的利益，本席認為，這是整體證據支持的唯一合理推論。" } }, { "doc_id": 86, "seg_id": 81, "translation": { "en": "The Prevention of Bribery Ordinance", "zh-HK": "《防止賄賂條例》" } }, { "doc_id": 86, "seg_id": 82, "translation": { "en": "Section 9(1)(a) of the Prevention of Bribery Ordinance provides as follows:", "zh-HK": "《防止賄賂條例》第 9(1)(a) 條規定：" } }, { "doc_id": 86, "seg_id": 83, "translation": { "en": "Any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his ―", "zh-HK": "「任何代理人無合法權限或合理辯解，索取或接受任何利益，作為他作出以下行為的誘因或報酬，或由於他作出以下行為而索取或接受任何利益，即屬犯罪" } }, { "doc_id": 86, "seg_id": 84, "translation": { "en": "doing or forbearing to do, or having done or forborne to do, any act in relation to his principal’s affairs or business;", "zh-HK": "作出或不作出，或曾經作出或不作出任何與其主事人的事務或業務有關的作為；」" } }, { "doc_id": 86, "seg_id": 85, "translation": { "en": "The 2nd Applicant’s submissions", "zh-HK": "第二申請人的論點" } }, { "doc_id": 86, "seg_id": 86, "translation": { "en": "The 2nd Applicant’s arguments ran as follows:", "zh-HK": "第二申請人的論點是：" } }, { "doc_id": 86, "seg_id": 87, "translation": { "en": "In the sale and purchase of Jebsen Building, he was merely responsible for looking for a suitable property and carrying out preliminary discussions with the vendor, and the decisions to purchase the said property and engage Centaline as agent were made by Li & Fung (1937). There was no evidence to show that he had participated in the process or influenced Li & Fung (1937) in its decisions. The reason was that he was merely an employee and an agent of Li & Fung Trading and did not have any employment or agency relationship with Li & Fung (1937).", "zh-HK": "他於「捷成大廈」買賣交易中只是負責物色物業及與賣方進行初步洽商，而最終決定購買該項物業和聘用「中原」為代理均是「利豐(1937)」作出的決定。本案沒有任何證據可證明他曾參與有關過程或曾影響「利豐(1937)」的決定，原因是他只是「利豐貿易」的僱員及代理人，他和「利豐(1937)」並沒有任何僱傭或主事人/代理人的關係。" } }, { "doc_id": 86, "seg_id": 88, "translation": { "en": "The engagement of Centaline as agent by Li & Fung Trading and the subsequent engagement of Centaline as agent by Li & Fung (1937) were two distinct matters and not necessarily related. However, in the absence of any supporting evidence, Judge Wong inferred from the above matters that the 2nd Applicant had caused Li & Fung (1937) to complete the property transaction and engage Centaline as its estate agent.", "zh-HK": "「利豐貿易」最初任用「中原」為代理與後來「利豐(1937)」繼續任用「中原」為代理的兩件事並沒有必然的關係，但黃法官卻在沒有任何其他證據支持下而推斷上述情況足以構成申請人“致使「利豐(1937)」完成物業交易和聘用「中原」為地產代理”的推論。" } }, { "doc_id": 86, "seg_id": 89, "translation": { "en": "Under section 9(1)(a) of the Prevention of Bribery Ordinance, the prosecution bore the burden of proving that any act done by the 2nd Applicant to solicit or accept any advantage must have been in relation to his principal’s affairs or business. As the prosecution failed to produce any evidence of the 2nd Applicant having caused Li & Fung (1937) to complete the property transaction and engage Centaline as estate agent, his conviction was unsafe.", "zh-HK": "根據《防止賄賂條例》第 9(1)(a) 條，控方有舉證責任去證明，若他曾作出索取或收取利益的行為，有關行為必須跟他的主事人的事務或業務有關。控方未能提出任何可支持他致使「利豐(1937)」達成物業交易和聘用「中原」為地產代理的證據，因此他的定罪是不穩妥的。" } }, { "doc_id": 86, "seg_id": 90, "translation": { "en": "Besides, applying the legal principle set out in Commissioner of the Independent Commission Against Corruption v. Ch’ng Poh [1997] HKLRD 652, the prosecution bore the burden of proving that the 2nd Applicant’s “act” was in relation to his principal’s affairs or business.", "zh-HK": "另外，根據 Commissioner of the Independent Commission Against Corruption v. Ch’ng Poh [1997] HKLRD 652 的法律原則，控方是有舉證責任去證明他的“作為”必須跟其主事人的事務或業務有關。" } }, { "doc_id": 86, "seg_id": 91, "translation": { "en": "The 2nd Applicant submitted that the evidence in the present case did prove the following facts:", "zh-HK": "第二申請人指本案有證據證明以下事實：" } }, { "doc_id": 86, "seg_id": 92, "translation": { "en": "The 2nd Applicant was merely an agent and employee of Li & Fung Trading but not an agent of Li & Fung (1937). He was instructed by a third party (i.e. the Global Property Committee of Li & Fung Group) to look for real properties, report his findings to the Committee and make recommendations accordingly.", "zh-HK": "第二申請人只是「利豐貿易」的代理人及僱員，他並不是「利豐(1937)」的代理人。他是受第三者（即利豐集團的全球物業委員會）的委託去物色物業、將結果向該委員匯報和作出推介。" } }, { "doc_id": 86, "seg_id": 93, "translation": { "en": "The general affairs and business of Li & Fung Trading did not involve investment projects such as sale and purchase of real properties.", "zh-HK": "「利豐貿易」的事務及業務並不涉及物業買賣的投資的工作。" } }, { "doc_id": 86, "seg_id": 94, "translation": { "en": "Li & Fung (1937) and Li & Fung Trading were separate entities and should not be regarded as one single entity.", "zh-HK": "「利豐(1937)」、「利豐貿易」兩間公司是獨立個體，不能被視為一體。" } }, { "doc_id": 86, "seg_id": 95, "translation": { "en": "Strictly speaking, Li & Fung (1937) was merely a shareholder of Li & Fung Limited and was not under Li & Fung Group which was headed by Li & Fung Limited. Hence, the business of Li & Fung (1937) (including the transaction over Jebsen Building and the engagement of Centaline as estate agent) was not the business of the 2nd Applicant’s principal.", "zh-HK": "嚴格來說，「利豐(1937)」只是「利豐有限公司」的股東之一，它並不屬於以「利豐有限公司」為首的「利豐集團」。因此，「利豐（1937）」的業務（包括「捷成大廈」交易和聘用「中原」為地產代理）並不是第二申請人的主事人的業務。" } }, { "doc_id": 86, "seg_id": 96, "translation": { "en": "To sum up, the 2nd Applicant’s ‘act’ in respect of the transaction over Jebsen Building in fact related only to the business of Li & Fung (1937) which had never been the 2nd Applicant’s principal. Accordingly, the charge against him pursuant to section 9(1)(a) was misconceived and his conviction was unsafe.", "zh-HK": "總括而言，第二申請人就「捷成大廈」交易所作出的“行為”實際上只是與「利豐（1937）」的業務有關，但「利豐（1937）」由始至終均非他的主事人，因此控方以第 9(1)(a) 條向他提出起訴是不恰當的，而他的定罪亦是不穩妥的。" } }, { "doc_id": 86, "seg_id": 97, "translation": { "en": "In the Privy Council case of Ch’ng Poh, Lord Lloyd of Berwick elucidated section 9(1)(a) of the Prevention of Bribery Ordinance, as follows:", "zh-HK": "在 Ch’ng Poh一案，英國樞密院的 Lord Lloyd of Berwick 法官對《防止賄賂條例》第 9(1)(a) 條的內容作出以下的釋闡：" } }, { "doc_id": 86, "seg_id": 98, "translation": { "en": "… Section 9 is the only section in the [Prevention of Bribery Ordinance] dealing with persons other than public servants. It is confined to agents. It does not say, like with section 4, that the agent must have been acting in his capacity as an agent. Instead the act done (or not done) by the agent must be an act done or not done in relation to his principal’s affairs … the alternative words serve the same purpose. They are clearly intended to be restrictive. It is not enough that the recipient of the bribe should be an agent in fact …", "zh-HK": "「……(《防止賄賂條例》)第 9 條是該條例中唯一處理公務員以外的條文，但它只局限於代理人。它沒有如第 4 條般說明代理人必須要在進行代理的職能。取而代之的是那個已完成(或未完成)的作為必須要是“與其主事人有關的”... 這些代替的字句的作用是一樣的，他們是具有規限性的意義。收受賄款的人事實上是代理人並不足夠 ..." } }, { "doc_id": 86, "seg_id": 99, "translation": { "en": "So what do the limiting words mean? They mean that, for the section to apply, the person offering the bribe must have intended the act or forbearance of the agent to influence or affect his principal’s affairs … it is an essential ingredient of the offence under section 9 that the action or forbearance of the agent should be aimed at the principal …", "zh-HK": "這些規限性的字眼有甚麼意思呢? 它們的意思是若第 9 條得以應用，提供賄款的人必須要意圖代理人的作為或不作為是去影響其主事人的業務...第 9 條的這個控罪的必要元素是代理人的作為或不作為必須要以其主事人為目標...」" } }, { "doc_id": 86, "seg_id": 100, "translation": { "en": "Our views", "zh-HK": "本庭的意見" } }, { "doc_id": 86, "seg_id": 101, "translation": { "en": "On the authority of Ch’ng Poh, in seeking to establish a defendant’s guilt for an offence under section 9(1)(a) of the Prevention of Bribery Ordinance, the emphasis is that the act or forbearance of the agent must be aimed at his principal. If the defendant received a bribe solely by reason of his being an agent but the receipt of the bribe had nothing to do with his principal, then the defendant is not proved guilty of the offence. This principle leaves no room for doubt. However, as the Court of Appeal clearly stated in A. G. v. Ling Kar Fai (No.1) [1997] HKLRD 671 and HKSAR v. Tham Chee Seng [1998] 3 HKC 654, in dealing with a charge under section 9(1)(a) or (b), the court has to take into account the intention of the recipient of the advantage. In the present case, the 2nd Applicant’s intention in accepting the $800,000 was that the money served as an inducement to or reward for his doing an act, and the relevant act was to cause his principal to engage Centaline in the property transaction. The 2nd Applicant was fully aware how Li & Fung Group’s property needs were to be addressed, and Belinda Fung deposed in her witness statement that when the 2nd Applicant briefed her on the details of the property transaction, she already came to know that Centaline was the agent in that transaction. On the evidence, the 2nd Applicant demanded a rebate from the 1st Applicant concerning the transaction, and after the 2nd Applicant referred the Jebsen Building transaction to Li & Fung (1937) for handling, he still telephoned PW3 at the time of execution of the contract by the parties, with a view to persuading her to sign the proposal, and he had also telephoned Belinda Fung, informing her that Centaline was dunning her for the commission. All these events lent support to Judge Wong’s finding that the 2nd Applicant’s intention and understanding in accepting the bribe were that it was a reward for his causing his principal Li & Fung (1937) to engage Centaline as agent in the relevant transaction.", "zh-HK": "根據 Ch’ng Poh 一案，要証明被告人違反了《防止賄賂條例》第 9(1)(a) 條的規定的重點在於代理人的作為或不作為必須要針對其主事人。如果被告人收取賄款純粹是由於他是一名代理人，但收取賄款與其主事人是毫無關連的話，有關的控罪是不能成立的。這個原則是毋庸置疑的。但正如上訴法庭 A. G. v. Ling Kar Fai (No. 1) [1997] HKLRD 671 及 HKSAR v. Tham Chee Seng [1998] 3 HKC 654兩宗案例說明，法庭在處理第9(1)(a) 或 (b) 條的控罪時所需要考慮的是收受利益者的意圖，即本案第二申請人接受 $800,000 的意圖是該款項是作為他作出的行為或由於他作出該行為的誘因或報酬，有關的行為是致使其主事人在該交易中聘用「中原」。第二申請人是清楚知道利豐集團處理物業需要的辦事形式，而 Belinda Fung 在她的證人陳述書內亦說當第二申請人就交易的細節向她作出簡介時，她已得悉中原是該次物業交易的代理。本案的證據亦顯示第二申請人要求第一申請人就有關交易給他回佣、當第二申請人將「捷成大廈」交易交給「利豐(1937)」自行處理後，他在雙方簽署合約的階段仍致電第三證人勸她簽署建議書，以及他曾致電 Belinda Fung通知她「中原」正在催促她支付佣金。上述事件均可以支持黃法官裁定第二申請人收受賄款的意圖和理解是因為他在有關交易中致使其主事人「利豐(1937)」聘用「中原」為代理的報酬。" } }, { "doc_id": 86, "seg_id": 102, "translation": { "en": "Furthermore, pursuant to section 11(1) of the Prevention of Bribery Ordinance, even though the 2nd Applicant had not materially and directly participated in the course of the transaction or influenced the decisions of Li & Fung (1937), this would be irrelevant to the question of his guilt or otherwise under section 9(1)(a) as long as he did hold the aforesaid belief. Section 11(1) of the Prevention of Bribery Ordinance provides as follows:", "zh-HK": "另外，根據《防止賄賂條例》第 11(1) 條，如果第二申請人確實有如此信念，就算他沒有實質直接參與交易的過程或影響「利豐(1937)」的決定與他是否違反第9(1)(a) 條控罪是無關的。《防止賄賂條例》第 11(1) 條說：" } }, { "doc_id": 86, "seg_id": 103, "translation": { "en": "If, in any proceedings for an offence under any section in this Part, it is proved that the accused accepted any advantage, believing or suspecting or having grounds to believe or suspect that the advantage was given as an inducement to or reward for or otherwise on account of his doing or forbearing to do, or having done or forborne to do, any act referred to in that section, it shall be no defence that ―", "zh-HK": "「在因本部任何一條所訂罪行而進行的法律程序中，如經證明被控人接受任何利益，且接受時相信或懷疑，或有理由相信或懷疑所獲給予的利益是作為他作出或不作出，或曾經作出或不作出該條所指作為的誘因或報酬，或是由於他作出或不作出，或曾經作出或不作出該等作為而獲給予的，則以下情況不得成為免責辯護" } }, { "doc_id": 86, "seg_id": 104, "translation": { "en": "he did not actually have the power, right or opportunity so to do or forbear;", "zh-HK": "被控人實際上沒有權力、權利或機會作出或不作出該作為；" } }, { "doc_id": 86, "seg_id": 105, "translation": { "en": "he accepted the advantage without intending so to do or forbear; or", "zh-HK": "被控人接受該利益但無意作出或不作出該作為；或" } }, { "doc_id": 86, "seg_id": 106, "translation": { "en": "he did not in fact so do or forbear.", "zh-HK": "被控人事實上未有作出或不作出該作為。」" } }, { "doc_id": 86, "seg_id": 107, "translation": { "en": "In our view, the prosecution had proved that when the 2nd Applicant accepted the $800,000, he believed or had grounds to believe that the bribe was given as a reward for his causing Li & Fung (1937) to engage Centaline as its estate agent. It was irrelevant to the offence whether he had actually done the act or whether he had the power to do so. The bribe was given to him not purely because he was an agent but because, as stated in the charge against him, it was in relation to his principal’s business. Therefore, the prosecution had established the element of causation as required by the offence.", "zh-HK": "本庭認為控方已經證明了第二申請人在接受該 $800,000 時是相信或有理由相信他所獲得的賄款是他作為他致使「利豐(1937)」聘用「中原」為地產代理的報酬。至於他事實上有沒有這樣做或者他是沒有權力這樣做都是與控罪無關的。申請人之所以獲得賄款並非純粹由於他是一名代理人，而是如控罪所指與他的主事人的業務有關，故此控方已證實了控罪所要求的因果關係。" } }, { "doc_id": 86, "seg_id": 108, "translation": { "en": "We now turn to the issue of whether Li & Fung (1937) was the 2nd Applicant’s principal. The 2nd Applicant’s submission that Li & Fung (1937) was not his principal was, in our view, a highly technical point. On a narrow view of the matter, Li & Fung (1937) did not appear to be the 2nd Applicant’s principal because the 2nd Applicant was not an employee of Li & Fung (1937), he was no longer involved in the sale and purchase transaction after Li & Fung (1937) took over it, and Li & Fung (1937) eventually became the purchaser. However, in Hong Kong, it is common in conveyancing transactions for purchasers to use other limited companies to execute sale and purchase agreements. In the present case, Li & Fung (1937) was not an independent company which had nothing to do whatsoever with Li & Fung Trading or Li & Fung Limited. Given the close connection among Li & Fung Trading, Li & Fung (1937) and Li & Fung Limited and the fact that Li & Fung (1937) eventually became the purchaser, we consider that, taking a broad view of the matter, Li & Fung (1937) was also the 2nd Applicant’s principal: by reason of the internal operation of Li & Fung Group, Li & Fung (1937) became the 2nd Applicant’s principal upon taking over the transaction from Li & Fung Trading. Accordingly, Judge Wong’s ruling was in our judgment correct. Nor was Charge 8 defective.", "zh-HK": "本庭現在要考慮「利豐(1937)」是不是第二申請人的主事人這個論點。本庭認為第二申請人聲稱「利豐(1937)」不是他的主事人是一個極為技術性的觀點。從狹隘的角度來看，第二申請人不是「利豐(1937)」的僱員、他在「利豐(1937)」自行處理該買賣交易後就再沒有參與事件及「利豐(1937)」最終成為買主的事情均令「利豐(1937)」看來好像不是第二申請人的主事人。但在香港的物業交易中買方往往會使用另一間有限公司去簽署買賣合約是慣常的做法。本案中的「利豐(1937)」並非是與「利豐貿易」或「利豐有限公司」全無關連的獨立公司。根據「利豐貿易」、「利豐(1937)」及利豐有限公司的密切關係及「利豐(1937)」最終成為買主的背景，本庭認為從宏觀的角度來看，「利豐(1937)」亦是第二申請人的主事人：基於利豐集團的內部操作，該宗交易由「利豐(1937)」從「利豐貿易」接手而成為第二申請人的主事人。因此，本庭認為黃法官的裁決是正確的。第八項控罪也不存有缺陷。" } }, { "doc_id": 86, "seg_id": 109, "translation": { "en": "The third ground of appeal", "zh-HK": "第三上訴理由" } }, { "doc_id": 86, "seg_id": 110, "translation": { "en": "At the investigative interview with ICAC officers, the 2nd Applicant, under caution, denied the charge against him. Judge Wong made the following findings on the record of the interview:", "zh-HK": "第二申請人在接受廉政公署調查時在警誡下否認控罪。黃法官就有關的會面記錄作出以下的裁決：" } }, { "doc_id": 86, "seg_id": 111, "translation": { "en": "In deciding where the truth lies, I have taken account of all the evidence. If the exculpatory part of the 2nd Defendant’s statement is true, may be true or gives rise to a reasonable doubt, then I have to acquit the 2nd Defendant. In my view, the 2nd Defendant’s denial is superficial and short of details. Coupled with the fact that he has not testified in court, I do not accept the exculpatory part of his statement.", "zh-HK": "本席考慮了整體證據以決定真相所在，如果陳述中足為第二被告人開脫的部分是真的、可能是真的、或造成合理疑點的話，本席當判第二被告人無罪。本席認為，第二被告人的否認是片面的，也不具細節，也因第二被告人沒有出庭作證，本席不信納第二被告人在陳述中的開脫部分。" } }, { "doc_id": 86, "seg_id": 112, "translation": { "en": "This notwithstanding, I will not convict the 2nd Defendant solely on this basis, because a defendant does not bear the burden of proof, which always rests with the prosecution. In assessing whether the prosecution has proved beyond all reasonable doubt that the 2nd Defendant has committed the offence, I have all along borne in mind that he has no conviction record.", "zh-HK": "雖然這樣，本席不會因此便裁定第二被告人有罪，因為被告人並沒有任何舉證責任，舉證責任一直都在控方身上。本席在評估控方是否在毫無合理疑點的尺度下證明了第二被告人干犯了控罪的時候，一直緊記第二被告人是沒有任何刑事定罪紀錄的。" } }, { "doc_id": 86, "seg_id": 113, "translation": { "en": "The 2nd Applicant submitted that Judge Wong should not have rejected the exculpatory statement that he had made at the interview on the basis that he had not testified in court, because he had the right to elect not to give evidence in court. He cited the following guidelines given by the Court of Final Appeal in HKSAR v. Lee Fuk Hing [2005] 1 HKLRD 349:", "zh-HK": "第二申請人指他選擇不在法庭上作證是他的權利，黃法官不應因此而不接納他於會面記錄中所作出的開脫陳述。第二申請人引用終審法院就 HKSAR v. Lee Fuk Hing [2005] 1 HKLRD 349一案所作出的指引：" } }, { "doc_id": 86, "seg_id": 114, "translation": { "en": "There was a right to silence, in consequence of which suspected persons in Hong Kong should be and routinely were given a caution informing them in unqualified term that they need not speak. In the whole of these circumstances, it was inappropriate in Hong Kong to use a person’s silence against him in any way.", "zh-HK": "「保持箴默的權利是存在的。由於疑犯有保持箴默的權利，他們通常，亦應該被警戒及完全地知會他們並沒有需要說話。在香港，在任何情況下，用任何方式利用疑犯的箴默權利都是不適當的。」" } }, { "doc_id": 86, "seg_id": 115, "translation": { "en": "In addition, the 2nd Applicant submitted that Judge Wong had unreasonably criticized the 2nd Applicant’s denial of the charges in the record of interview as superficial and lacking in details.", "zh-HK": "另外，第二申請人認為黃法官批評他在會面記錄中否認控罪的辯解是片面、不具細節是不合理的。" } }, { "doc_id": 86, "seg_id": 116, "translation": { "en": "We do not think that Judge Wong had erred in any way on this. He had made it clear to the Applicant that he had the right to elect not to give evidence in court and that the court would not draw any adverse inference against him if he exercised his right. We do not consider that Judge Wong’s findings had encroached upon the right of silence which the law had conferred on the 2nd Applicant. As a matter of law, the court is not bound to accord any weight to a defendant’s out-of-court exculpatory statement, such as his denial under caution of the charges against him, because the defendant may have made such a statement purely with a view to protecting his own interest or absolving himself from criminal liability. Furthermore, the record of interview showed that, apart from a making bare denial of the charges against him, the 2nd Applicant had not provided any particulars to support his exculpatory statement.", "zh-HK": "本庭不認為黃法官就這事犯上任何錯誤。黃法官清楚指出申請人在庭上選擇不作供是他的權利，法庭不會對他作出不利的揣測。本庭不認為黃法官的裁決違反了法律賦予第二申請人的箴默權原則。根據法律原則，法庭就被告人在法庭以外在警誡下作出否認控罪的開脫陳述是可以不給予比重的，理由是有關陳述只是被告人維護其利益及為了脫罪而作出的辯解。再者，第二申請人在會面記錄的開脫罪行部分也確實是沒有提供任何細節，他只是純粹否認控罪。" } }, { "doc_id": 86, "seg_id": 117, "translation": { "en": "For the above reasons, the 2nd Applicant’s application for leave to appeal against conviction is dismissed.", "zh-HK": "基於上述原因，本庭駁回第二申請人針對定罪的上訴許可申請。" } }, { "doc_id": 86, "seg_id": 118, "translation": { "en": "The 1st Applicant’s application for leave to appeal against sentence", "zh-HK": "第一申請人針對刑期的上訴許可申請" } }, { "doc_id": 86, "seg_id": 119, "translation": { "en": "We have hereinabove referred to the facts of Charge 1 against the 1st Applicant as summarised by Judge Wong. We now refer to the Judge’s summary of the facts pertaining to the remaining three charges:", "zh-HK": "本庭已將黃法官就第一申請人的第一控罪的案情簡述節錄於上文，以下是黃法官對其他三條控罪案情的簡述：" } }, { "doc_id": 86, "seg_id": 120, "translation": { "en": "Charge 3", "zh-HK": "「第三控罪" } }, { "doc_id": 86, "seg_id": 121, "translation": { "en": "In July 2005, a member company of Li & Fung Group purchased certain premises in Hong Kong Textile Factory Industrial Building. The 2nd Defendant suggested that the Group appoint [Centaline] as its agent, and [Centaline] was engaged accordingly. In that connection, the 1st Defendant offered approximately $412,000 to the 2nd Defendant as an advantage. In order to obtain the said sum, the 1st Defendant falsely represented to [Centaline] that a company named Classic Look had provided consultancy services to [Centaline], as a result of which he fraudulently obtained $518,645.", "zh-HK": "05 年 7 月，利豐集團一間成員公司購入了香港紗廠工業大廈內的一些物業，第二被告人建議集團委託中原地產為代理，中原地產因此被聘用，第一被告人為此向第二被告人提供了大約 412,000 元的利益，為了要取得這筆款項，第一被告人向中原地產虛稱一間 Classic Look 公司曾向中原地產提供顧問服務，騙取了 518,645 元。" } }, { "doc_id": 86, "seg_id": 122, "translation": { "en": "Charge 5", "zh-HK": "第五控罪" } }, { "doc_id": 86, "seg_id": 123, "translation": { "en": "In February 2006, Li & Fung Trading rented certain properties. The 2nd Defendant suggested that the company appoint [Centaline] as its agent, and [Centaline] was engaged accordingly. In that connection, the 1st Defendant provided approximately $200,000 to the 2nd Defendant as an advantage. In order to obtain the said sum, the 1st Defendant falsely represented to [Centaline] that [Wang Him] had provided consultancy services, as a result of which he fraudulently obtained $267,797.", "zh-HK": "06 年 2 月，利豐貿易租用了一些物業，第二被告人向公司建議委託中原地產為代理，中原地產因而被聘用，第一被告人為此向第二被告人提供了大約 200,000 元的利益，為了要取得這筆款項，第一被告人向中原地產虛稱宏謙提供了顧問服務，騙取了 267,797 元。" } }, { "doc_id": 86, "seg_id": 124, "translation": { "en": "[the rented property concerned was Ng Fat Building (吳發大廈)]", "zh-HK": "[有關的租用物業是吳發大廈]" } }, { "doc_id": 86, "seg_id": 125, "translation": { "en": "Charge 7", "zh-HK": "第七控罪" } }, { "doc_id": 86, "seg_id": 126, "translation": { "en": "In April 2005, in order to raise money to pay commission, the 1st Defendant, conspiring with the 3rd Defendant and PW1, submitted documents which falsely represented that [Wang Him] was a referral agency, thereby causing [Centaline] to believe that the representation was true and hence pay Wang Him $275,000 as referral fee.", "zh-HK": "05 年 4 月，為了要籌得一筆金錢支付回佣，第一被告人與第三被告人連同控方第一證人串謀提交文件，虛稱宏謙是一間轉介公司，令中原地產信以為真，支付了宏謙 275,000 元的介紹費。」" } }, { "doc_id": 86, "seg_id": 127, "translation": { "en": "[the property concerned was at 98 Fa Yuen Street]", "zh-HK": "[有關的物業是花園街 98 號物業]」" } }, { "doc_id": 86, "seg_id": 128, "translation": { "en": "Judge Wong adopted the following starting points for the various charges: imprisonment for 3 years in respect of Charge 1; imprisonment for 30 months in respect of Charge 3; imprisonment for 30 months in respect of Charge 5; and imprisonment for 2 years in respect of Charge 7.", "zh-HK": "黃法官就各項控罪採用以下的量刑基準：第一控罪為三年監禁；第三控罪為三十個月監禁；第五控罪為三十個月監禁；而第七控罪為兩年監禁。" } }, { "doc_id": 86, "seg_id": 129, "translation": { "en": "As the 1st Applicant pleaded guilty to the charges, the various terms of imprisonment were reduced by one-third to the following: 24 months in respect of Charge 1; 20 months in respect of Charges 3 and 5; and 16 months in respect of Charge 7. The sentences for the first three charges were ordered to run concurrently, but these terms were ordered to run consecutively to the sentence for Charge 7, making a total term of 40 months.", "zh-HK": "由於第一申請人承認控罪，在扣減認罪的三分之一刑期扣減後，各項刑期為：第一項控罪是二十四個月監禁；第三及第五項控罪是二十個月監禁；第七項控罪是十六個月監禁。首三項刑期同期執行，但與第七項控罪的刑期分期執行，總刑期是四十個月監禁。" } }, { "doc_id": 86, "seg_id": 130, "translation": { "en": "The 1st Applicant’s background", "zh-HK": "第一申請人的背景" } }, { "doc_id": 86, "seg_id": 131, "translation": { "en": "The 1st Applicant is 49 years of age and comes from the grass roots. He studied diligently, worked part-time after school and obtained a degree from the university, following which he worked in the business sector. He joined Centaline in 1996 and was promoted to the post of director a few years later. The mitigation letters written for him by the senior officers of Centaline revealed that the 1st Applicant had assisted Centaline in boosting its business and had made a lot of contributions to the company. Scores of staff members of Centaline had also written to the court, seeking to mitigate the 1st Applicant’s sentence. Outside office hours, the 1st Applicant took part in a number of social services.", "zh-HK": "第一申請人現年 49 歲，出身於草根階層，他努力讀書，課餘兼職，取得大學學位，畢業後投身商界。他於1996 年加入「中原」，數年後已獲擢升為董事。「中原」高層人員為他撰寫的求情信顯示第一申請人協助「中原」提升業務及對公司作出不少的貢獻。數十名「中原」的職員均致函法庭，為第一申請人求情。第一申請人在工餘亦參與多項的社會服務。" } }, { "doc_id": 86, "seg_id": 132, "translation": { "en": "The submission on mitigation", "zh-HK": "減刑的陳詞" } }, { "doc_id": 86, "seg_id": 133, "translation": { "en": "Mr. Pang, Counsel for the 1st Applicant, submitted that the sentence was manifestly excessive. He submitted that the 1st Applicant did not take the initiative to offer bribe to the 2nd Applicant; in fact, the 2nd Applicant sought a rebate from PW3, who then related the request to the 1st Applicant, and hence the 2nd Applicant was the culprit. Mr. Pang also submitted that Centaline had in fact not suffered any loss ― the 1st Applicant’s act increased the business turnover of Centaline, and therefore Centaline would not possibly have suffered any loss; had the 1st Applicant not agreed to give rebate to the 2nd Applicant, Centaline would not have been engaged as the agent in the relevant property transaction. Mr. Pang further pointed out that Judge Wong had not reduced the 1st Applicant’s sentence as appropriate in light of his previous good record.", "zh-HK": "代表第一申請人的彭耀鴻大律師指刑期明顯是過重。他指第一申請人並非主動向第二申請人提供賄款，事實上是第二申請人向第三證人索取回佣，而第三證人向第一申請人轉達有關要求，因此始作佣者是第二申請人。彭大律師亦指「中原」實際上並沒有受到損失，因為第一申請人的行為提高了「中原」的營業額，因此「中原」根本不會有損失；假若第一申請人不答應給予第二申請人回佣，「中原」就不會獲聘為該項物業交易的代理人。彭大律師指黃法官亦沒有就第一申請人的良好行為記錄給予他一個適當的刑期扣減。" } }, { "doc_id": 86, "seg_id": 134, "translation": { "en": "Our views", "zh-HK": "本庭意見" } }, { "doc_id": 86, "seg_id": 135, "translation": { "en": "In our view, in order to uphold Hong Kong’s reputation as an international commercial centre, Hong Kong courts must impose severe punishment on those who practise commercial corruption. Although the 1st Applicant did not take the initiative to offer the bribe to the 2nd Applicant, he actively took part in the corruption, making false documents to deceive his employer and dishonestly obtaining money in order to pay the bribe to the 2nd Applicant. The 1st Applicant had also bribed the 2nd Applicant in two other property transactions. As a senior officer of Centaline, the 1st Applicant had not only failed to set an example by prohibiting his subordinates from doing corrupt acts and urging them to report such acts, but rather had directly participated in illegal activities. This cannot be allowed by the law.", "zh-HK": "本庭認為香港法庭必須對所有干犯商業貪污者嚴厲懲處，以維持香港作為國際商業都市的聲譽。雖然第一申請人不是主動向第二申請人提供賄款，但他積極參與賄賂活動、製造虛假文件去欺騙其僱主，以及不誠實地取得金錢以支付賄款給第二申請人。第一申請人亦在其他兩次物業買賣交易中向第二申請人提供賄款。第一申請人作為「中原」的高層成員，不但沒有以身作則，禁止下屬進行貪污勾當或舉報有關行為，反而直接參與不法的行動，這是法律所不容的。" } }, { "doc_id": 86, "seg_id": 136, "translation": { "en": "While it is true that the activities in which the 1st Applicant took part had increased the business turnover of Centaline, we do not agree with Mr. Pang’s submission that Centaline had not suffered any loss. In our view, all estate agents must conduct property transactions in a legitimate manner.", "zh-HK": "明顯地，第一申請人所參與的活動的確提高了「中原」營業額，但本庭對彭大律師指「中原」沒有受到損失的說法不表認同。本庭認為地產代理人必須以合法的方式去進行物業交易。" } }, { "doc_id": 86, "seg_id": 137, "translation": { "en": "As regards the 1st Applicant’s good record and contribution to the community, we consider that given the serious nature of this type of cases, it was correct for Judge Wong not to further reduce the 1st Applicant’s sentence. What the 1st Applicant did as a senior officer of Centaline plainly constituted a serious breach of trust.", "zh-HK": "至於第一申請人的良好行為記錄及對社會的供獻，本庭認為在就這類嚴重的案件，黃法官不再給予第一申請人刑期扣減是正確的做法，因為申請人作為「中原」的高層成員，他的行為明顯是嚴重違反了誠信。" } }, { "doc_id": 86, "seg_id": 138, "translation": { "en": "To support his contention that the 1st Applicant’s sentence was manifestly excessive, Mr. Pang cited the sentences in 10 other cases of the same nature (see the Appendix to this judgment for details). We must reiterate that the sentence(s) for each case is/are considered on its own facts and, as different cases involve different facts, the sentences imposed may not necessarily be the same. The paramount consideration is that on the facts of the present case, the sentence imposed on the 1st Applicant is not manifestly excessive. In our judgment, whether individually or taken as a whole, the sentences imposed on the 1st Applicant by Judge Wong are appropriate.", "zh-HK": "彭大律師引用本判案書附件的另外十宗同類案件的量刑來支持他認為本案的量刑明顯過重的觀點。本庭必須重申每宗案件的量刑是根據其案情而作出的，由於每宗案件的案情有別，所以其量刑也不一定是相同的。最重要的原則是第一申請人獲判的刑期就本案案情而言是沒有明顯過重。本庭認為不論黃法官所判的個別刑期或整體刑期皆是第一申請人所應獲判的適當刑期。" } }, { "doc_id": 86, "seg_id": 139, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 86, "seg_id": 140, "translation": { "en": "The application in respect of sentence is dismissed.", "zh-HK": "本庭駁回針對刑期的申請。" } }, { "doc_id": 86, "seg_id": 141, "translation": { "en": "Appendix", "zh-HK": "附件" } }, { "doc_id": 86, "seg_id": 142, "translation": { "en": "Mr. Alex Lee, Senior Assistant Director of Public Prosecutions and Mr. Edmond Lee, Senior Prosecutor, for the Respondent.", "zh-HK": "答辯人 ：由律政司高級助理刑事檢控專員李運騰及高級檢控官李俊文代表。" } }, { "doc_id": 86, "seg_id": 143, "translation": { "en": "Mr. Robert Pang, instructed by Cheung & Choy, for the 1st Applicant.", "zh-HK": "第一申請人: 由張世文蔡敏律師事務所轉聘彭耀鴻大律師代表。" } }, { "doc_id": 86, "seg_id": 144, "translation": { "en": "Mr. Wong Man-kit SC, Mr. Edwin Choy and Mr. Joe Chan, instructed by Sit, Fung, Kwong & Shum, for the 2nd Applicant.", "zh-HK": "第二申請人:由薛馮鄺岑律師行轉聘黃敏杰資深大律師,蔡維邦大律師及陳偉彥大律師代表。" } }, { "doc_id": 87, "seg_id": 1, "translation": { "en": "Hon Yeung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判決書：" } }, { "doc_id": 87, "seg_id": 2, "translation": { "en": "On 31 July 2007, police officers stopped and searched Lam Chor Ping, the Applicant herein, outside Room A, 10/F, Cheong Kee House, 21 Soy Street, Kowloon (“the premises”) and found on his person the key to the premises. The police officers then opened the door with the key and entered the premises for the purpose of executing a search warrant issued by the court. At that time, the Applicant was a tenant of the premises.", "zh-HK": "2007年7月31日，警員在九龍豉油街21號昌記大厦10樓A室外截查申請人林楚平並在其身上搜獲上址的鎖匙。警員隨即利用鎖匙開門，並進入該單位內執行法庭發出之搜查令。當時，申請人是該單位的租客。" } }, { "doc_id": 87, "seg_id": 3, "translation": { "en": "Later on, the police officers found inside the premises a total of 20.80 grammes of crystalline solid containing 20.04 grammes of “ice” as well as a small quantity of heroin. A large quantity of drug packaging tools and cash (HK$22,383.10 and Renminbi 1,790.5) were also found.", "zh-HK": "其後警員在單位內搜獲共20.80克晶狀固體，內含20.04克“冰”毒及少量海洛英。警員亦搜獲大量包裝毒品工具和現金（22,383.10港元及1,790.5人民幣）。" } }, { "doc_id": 87, "seg_id": 4, "translation": { "en": "The Applicant admitted to the police officers that the “ice” was purchased in Shenzhen for $6,000 and brought back to Hong Kong. He agreed that he intended to sell some of the “ice” and use some of it for self-consumption.", "zh-HK": "申請人向警員承認“冰”毒是從深圳以6,000元購入並帶回香港。他同意表示打算將部份“冰”毒用作出售而部份則作自用。" } }, { "doc_id": 87, "seg_id": 5, "translation": { "en": "As a result, the Applicant was charged with one count of trafficking in a dangerous drug (i.e. the aforesaid “ice”) and one count of possession of a dangerous drug (i.e. the aforesaid heroin).", "zh-HK": "結果申請人被控一項販運危險藥物（即上述“冰”毒）罪及一項管有危險藥物（即上述海洛英）罪。" } }, { "doc_id": 87, "seg_id": 6, "translation": { "en": "The Applicant pleaded guilty to possessing the heroin but denied trafficking in the “ice”, and he disputed the oral and written admissions which he had allegedly made.", "zh-HK": "申請人只承認管有“海洛英”罪，但否認販運“冰”毒罪，並就控方指他曾作出的口頭及書面招認提出爭議。" } }, { "doc_id": 87, "seg_id": 7, "translation": { "en": "After a hearing which lasted almost 6 days, Barnes J, the trial judge, ruled that the admissions were made by the Applicant voluntarily and were therefore admissible as evidence. At that point, the Applicant changed his mind and pleaded guilty to trafficking in the “ice”.", "zh-HK": "經近6天的聆訊後，主審法官張惠玲裁定申請人的招認是自願作出，故應呈堂為證後，申請人隨即改變初衷，承認販運“冰”毒罪。" } }, { "doc_id": 87, "seg_id": 8, "translation": { "en": "For the trafficking offence and possession offence, Barnes J sentenced the Applicant to imprisonment for 6 years 2 months and 4 months respectively, and the sentences were ordered to run concurrently.", "zh-HK": "張法官就販運及管有危險藥物罪判申請人分別入獄6年2個月及4個月，同期執行。" } }, { "doc_id": 87, "seg_id": 9, "translation": { "en": "The Applicant now applies for leave to appeal against the sentence in respect of the trafficking offence.", "zh-HK": "申請人不服販運“冰”毒罪的判刑，現提出上訴許可申請，要求獲准就判刑上訴。" } }, { "doc_id": 87, "seg_id": 10, "translation": { "en": "The Applicant submits that, having regard to the quantity of the “ice” involved, the starting point should be 7 years to 7½ years instead of 8 years as adopted by Barnes J. He cites a number of decided cases in purported support of his argument.", "zh-HK": "申請人指以涉案“冰”毒的份量而言，量刑基準應為7年至7年半，而非張法官所採納的8年。申請人列出多宗例案支持其立場。" } }, { "doc_id": 87, "seg_id": 11, "translation": { "en": "The Applicant submits that at trial he had been misled by Counsel acting for him into believing that even if he did not plead guilty at the first opportunity, he could still get a one-third discount on his sentence. In the end, however, he was given a discount of less than one-fourth, which (he submits) was unfair to him. He also submits that his senile parents and young children have to be looked after. He therefore requests the court to pass a lenient sentence and give him a chance to turn over a new leaf.", "zh-HK": "申請人指原審時受其代表大律師誤導，以為即使不是第一時間認罪，他仍可得到三份一的刑期扣減，但結果他只能得到不足四份一的刑期扣減，對他不公；申請人亦指其年老父母及年幼孩子都需人照顧，故希望法庭能法外施恩給他一次更生機會。" } }, { "doc_id": 87, "seg_id": 12, "translation": { "en": "Drug trafficking is an extremely serious offence and, in order to combat this offence, the court has laid down specific sentencing guidelines. According to AG v Ching Kwok-hung [1991] 2 HKLR 125, the starting point for trafficking in 10 grammes to 70 grammes of “ice” is 7 to 10 years.", "zh-HK": "販運毒品屬極為嚴重罪行，為了打擊販毒罪行，法庭有明確量刑指引。根據AG v Ching Kwok-hung [1991] 2 HKLR 125案，販運10克至70克“冰”毒量刑基準是7 – 10年。" } }, { "doc_id": 87, "seg_id": 13, "translation": { "en": "Of course, the court has a discretion to determine, within the parameters of the aforesaid guidelines, an appropriate starting point in light of the facts of a particular case and/or the exceptional circumstances of a particular defendant.", "zh-HK": "當然在量刑指引的範圍內，法庭亦有酌情權，根據個別案情及/或個別被告人的特殊情況定下在指引範圍內的適當量刑基準。" } }, { "doc_id": 87, "seg_id": 14, "translation": { "en": "As Barnes J has correctly pointed out, the present case involves a cross-border offence and the Applicant is not a first offender. The records show that he has 14 previous convictions, 5 of which involve dangerous drugs including two for drug trafficking, while the remaining convictions are mostly for offences involving dishonesty.", "zh-HK": "誠如張法官正確指出，本案是跨境罪行，而申請人更非初犯者。申請人的犯罪記錄顯示他有14次犯案前科，其中5次涉及毒品，包括2次販運毒品，而其他罪行多涉及不誠實行為。" } }, { "doc_id": 87, "seg_id": 15, "translation": { "en": "The starting point of 8 years adopted by Barnes J has not exceeded the parameters of the sentencing guidelines and is eminently justified and correct. Even if a starting point of less than 8 years has been adopted in some previous cases of a similar nature and involving the same quantity of drugs, it does not follow that we have to vary the starting point adopted by Barnes J.", "zh-HK": "張法官採納的8年量刑基準並無超過量刑指引的範圍，有充份理據支持，亦是正確的。即使有同類性質，涉及相同份量毒品的案件的量刑基準較8年為低亦不表示本庭應更改張法官所採納的量刑基準。" } }, { "doc_id": 87, "seg_id": 16, "translation": { "en": "The court usually gives a one-third discount to those defendants who have pleaded guilty because such a discount accords with public interest. The plea of guilty (1) avoids the inconvenience and other detriment which the community would inevitably suffer if a trial took place, and (2) saves expenses in respect of judicial proceedings, provision of court facilities, prosecutorial work, provision of legal aid, witness fees and jurors’ fees, and also avoids the inconvenience which members of the public would suffer by serving as jurors (See HKSAR v Chan Ka Shing, CACC 241/2008).", "zh-HK": "法庭一般給予承認控罪的被告人三份一的刑期扣減，原因是該刑期扣減符合公眾利益。犯案者認罪（一）會令社會免卻因審訊而必會導致之不便和其他代價，（二）會減省司法程序，法庭設施，控方檢控程序，法援援助，證人費和陪審員費用的支出及免卻陪審員面對之不便（見香港特別行政區 對陳家誠CACC 241/2008案）。" } }, { "doc_id": 87, "seg_id": 17, "translation": { "en": "In the present case, it is true the Applicant pleaded guilty in the end, thereby saving expenses in respect of jurors’ fees and avoiding inconvenience which might otherwise be caused to the jurors. However, the Applicant had initially objected to his admissions being adduced as evidence, as a result of which the court had to hold a 6-day hearing in order to determine the issue.", "zh-HK": "在本案，雖然申請人最終承認控罪，免卻了陪審員費用的支出及免卻陪審員面對之不便，但申請人反對控方將他作出的招認呈堂，導致法庭要進行了6天的聆訊。" } }, { "doc_id": 87, "seg_id": 18, "translation": { "en": "The Applicant’s conduct not only wasted the court’s time and prevented the court from dealing with other cases more expeditiously, but also wasted public money, including expenses arising from prosecutorial work and the provision of legal aid.", "zh-HK": "申請人的行為不但浪費了法庭時間，導致法庭不能加快處理其他案件，更浪費公帑，包括檢控程序及法律援助所引發的費用。" } }, { "doc_id": 87, "seg_id": 19, "translation": { "en": "Barnes J’s decision of not giving the Applicant a one-third discount is correct.", "zh-HK": "張法官不給予申請人三份一的刑期扣減是正確的決定。" } }, { "doc_id": 87, "seg_id": 20, "translation": { "en": "Nor does the fact that the advice given by Counsel for the Applicant differed from the Judge’s final decision provide a reason for varying what is a properly made decision.", "zh-HK": "申請人大律師給予申請人的意見，最終和法官判決不同，亦非更改一項恰當判決的理由。" } }, { "doc_id": 87, "seg_id": 21, "translation": { "en": "The less than one-fourth discount given to the Applicant was a decision made by Barnes J in the exercise of her discretion. There is no room for varying her decision, which is justified in the circumstances. In respect of drug trafficking offences, the hardship suffered by the defendant and his family as a result of the sentence imposed on him is not a mitigating factor.", "zh-HK": "張法官最終給予申請人少於四份一的刑期扣減，是張法官行使其酌情權的決定。張法官的決定有根據，本庭不應更改。在販毒案件，被告人的判刑所引致對他及其家人的困境亦非減刑理由。" } }, { "doc_id": 87, "seg_id": 22, "translation": { "en": "In view of the nature and quantity of the drugs involved, the Applicant’s background and the way in which the case had proceeded, the overall sentence of 6 years and 2 months is not manifestly excessive and we see no reason for varying it.", "zh-HK": "以案件所涉毒品的性質和份量，申請人的背景及案件處理的過程，申請人被判的6年2個月總刑期不屬明顯過重，本庭沒有理由更改。" } }, { "doc_id": 87, "seg_id": 23, "translation": { "en": "We refuse to grant leave to the Applicant to appeal against sentence.", "zh-HK": "本庭不批准申請人就判刑上訴。" } }, { "doc_id": 87, "seg_id": 24, "translation": { "en": "Ms. Evena Chan, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員陳月好代表。" } }, { "doc_id": 87, "seg_id": 25, "translation": { "en": "The Applicant in person, present.", "zh-HK": "申請人：無律師代表，親自應訊。" } }, { "doc_id": 88, "seg_id": 1, "translation": { "en": "Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案書：" } }, { "doc_id": 88, "seg_id": 2, "translation": { "en": "Facts of the case", "zh-HK": "案情" } }, { "doc_id": 88, "seg_id": 3, "translation": { "en": "The applicant pleaded guilty to one count of Trafficking in a Dangerous Drug, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance (‘the Ordinance’), Cap 134, before Deputy High Court Judge Patrick Li. The dangerous drug in question was 2.96 kilogrammes of cocaine. Deputy Judge Li sentenced the applicant to 18 years and 8 months’ imprisonment. The applicant applies for leave to appeal against sentence.", "zh-HK": "申請人在高等法院原訟法庭暫委法官李瀚良席前承認一項「販運危險藥物」罪，違反《危險藥物條例》(《條例》) (香港法例第 134 章)第 4(1)(a) 及 (3) 條。涉案的危險藥物是2.96公斤的可卡因。李法官判處申請人監禁18年8個月。申請人就刑期提出上訴許可申請。" } }, { "doc_id": 88, "seg_id": 4, "translation": { "en": "The facts of the case are that the applicant arrived Hong Kong by air from Johannesburg, South Africa, on 8 August 2009. When entering Hong Kong at the Hong Kong International Airport, he was stopped by Customs Officer who searched his suitcase. The Customs Officer found that the weight and stiffness of the clothing and towels inside the suitcase were unusual. Upon analysis, the said items were confirmed to have been mixed with cocaine. The applicant claimed that he carried the drug to Hong Kong from Lima for a man called ‘Ah Ching’ (transliteration) for a reward of $50,000. The drug was to be handed over to another person later. The retail value of the drug was HK$2,074,960. The applicant was 18 at the time of the offence. He would turn 19 three months thereafter.", "zh-HK": "案情顯示2009年8月8日申請人從南非約翰內斯堡飛抵香港，在香港國際機場入境時被海關人員截停及搜查他的行李箱。海關人員發覺該行李箱內所載着的衣物、毛巾的重量和硬度有異樣，有關物品其後被化驗及被證實滲入了可卡因。申請人稱聲他為了五萬元的酬金替一名叫「阿清」的男子從利馬把這些毒品運到香港，然後交給另一名人士。這批毒品的零售價為 HK$2,074,960。申請人在犯案時年18歲，差三個月就滿19歲。" } }, { "doc_id": 88, "seg_id": 5, "translation": { "en": "The sentencing by Deputy Judge Li in the Court of Appeal(sic)", "zh-HK": "李法官在上訴法庭的量刑" } }, { "doc_id": 88, "seg_id": 6, "translation": { "en": "In passing sentence, Deputy Judge Li referred to the sentencing guideline on Trafficking in Dangerous Drugs cases set down in HKSAR v. Abdallah [2009] 2 HKLRD 437 and adopted 25 years as the starting point. He added 3 years to that as the case involved shipping drugs to Hong Kong from overseas. In light of the guilty plea, Deputy Judge Li reduced the sentence by one third (i.e. 9 years and 4 months); the sentence passed in the end was 18 years 8 months’ imprisonment.", "zh-HK": "李法官首先根據HKSAR v. Abdallah [2009] 2 HKLRD 437一案的「販運危險藥物」罪的量刑指引，將本案的量刑基準定為25年，另外因涉案毒品是從外地運到香港，再加刑3年，由於被告人認罪，李法官扣減三分之一的刑期(即9年4個月)，最終刑期為18年8個月監禁。" } }, { "doc_id": 88, "seg_id": 7, "translation": { "en": "Case authority", "zh-HK": "案例" } }, { "doc_id": 88, "seg_id": 8, "translation": { "en": "On 12 March 2009, in the case of Abdallah, the Court of Appeal set down sentencing guideline on cases where the amount of heroin or cocaine being trafficked is over 600 grammes. If the quantity of drugs involved is 1,200 to 4,000 grammes, the applicable sentence is 23 to 26 years of imprisonment. Besides, the Court of Appeal said if there was an international dimension to the background of the drug trafficking, and the quantity of drugs in question was one kilogramme or over, the court can enhance the sentence by no less than 2 years of imprisonment.", "zh-HK": "上訴法庭在2009年3月12日在Abdallah一案就販運超過600克海洛英或可卡因制訂了刑期指引。若有關毒品的份量是1,200 至4,000克，適用的刑期是23至26年監禁。另外，上訴法庭指出若果案件涉及國際販毒背景，而有關的毒品份量為一公斤或以上，法庭可以加刑，但不少於兩年監禁。" } }, { "doc_id": 88, "seg_id": 9, "translation": { "en": "Opinion of this Court", "zh-HK": "本庭的意見" } }, { "doc_id": 88, "seg_id": 10, "translation": { "en": "The applicant accepted the starting point of 25 years adopted by Deputy Judge Li. The only contention in this case is the extent to which the sentence was enhanced. This Court is of the view that the 23 to 26 years of imprisonment set down by the Court of Appeal is already a harsh one set with a view to deterring drug traffickers. The Ordinance in fact defines ‘trafficking’ to include the ‘importing’ and ‘exporting’ of drugs. This Court is of the view that the main reason for the need to enhance sentence in cases where there is an international dimension such as ‘importing’ and ‘exporting’ is because it is the most serious amongst the various types of drug trafficking activities. This Court, however, does not think the extent of the enhancement mentioned in the Abdallah case requires scaling up according to the quantity of the drugs; we are of the view that the sentence in the end has to be uniform and appropriate. This Court considers that reference can be made to HKSAR v. Hong Chang Chi [2002] 1 HKLRD 486, which had been discussed by the court in the case of Abdallah. Three kilogrammes of cocaine was involved in the case. The starting point the court adopted was 27 years. The courts of Hong Kong have since the case of Abdallah adopted a 2-year enhancement in passing sentence in drug trafficking cases where there is an international background.", "zh-HK": "申請人接納李法官所採用的25年刑期基準。本案唯的一爭議點是加刑的幅度。本庭認為上訴法庭所訂定的23至26年監禁已經是個嚴峻的刑期,以祈能對毒販起阻嚇作用。《條例》就「販運」毒品的定義其實是包括「入口」及「出口」的毒品的元素。本庭認為涉及國際背景如「入口」或「出口」的販毒需要加刑的主要原因是它們是各類形的販運毒品活動中最嚴重的一種。但本庭不認為Abdallah一案所提出的加刑幅度是需要根據毒品的份量而遞增，本庭認為最終的刑期是要均匀及恰當。本庭認為可以參考HKSAR v. Hong Chang Chi [2002] 1 HKLRD 486一案，它曾經在Abdallah一案中被法庭討論過。該案涉及販運三公斤的可卡因，法庭採用的量刑基準為27年。香港法庭在Abdallah一案後，凡涉及國際販毒背景的案件多都採用兩年的加刑幅度。" } }, { "doc_id": 88, "seg_id": 11, "translation": { "en": "Having regard to the age of the applicant at the time of the offence and the fact that this is the first time he committed the offence of trafficking in a dangerous drug, this Court considers that a 2-year enhancement is already a sufficient punishment. We therefore allow the application, and treating it as the appeal itself, vary the original starting point of 28 years to 27 years. After taking off one third of the sentence (i.e. 9 years) for the guilty plea, in the end, he is sentenced to 18 years of imprisonment.", "zh-HK": "本庭認為在考慮過申請人犯案時的年紀及他是第一次干犯涉及販運毒品的罪行，加刑兩年已經是足夠的刑罰，故此本庭批准申請，視申請為正式上訴，將原本的28年量刑基準改為27年，扣減因認罪的三分之一刑期(即9年)後，最終刑期為18年監禁。" } }, { "doc_id": 88, "seg_id": 12, "translation": { "en": "Ms Irene Fan, Senior Public Prosecutor, of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官范凱琳代表。" } }, { "doc_id": 88, "seg_id": 13, "translation": { "en": "Mr Kevin Chan, assigned by the Legal Aid Department, for the Applicant.", "zh-HK": "申請人：由法律援助署署長轉聘陳世傑大律師代表。" } }, { "doc_id": 89, "seg_id": 1, "translation": { "en": "Hon Chu J (giving the judgment of the Court):", "zh-HK": "原訟法庭法官朱芬齡頒發上訴法庭判案書：" } }, { "doc_id": 89, "seg_id": 2, "translation": { "en": "The Applicant was brought before the District Court for the following charges: one count of ‘trafficking in a dangerous drug’ (charge 1), namely 10.62 grammes of a crystalline solid containing 10.59 grammes of methamphetamine hydrochloride (commonly known as ‘ice’); one count of ‘possessing a dangerous drug’ (charge 2), namely 23 millilitres of a liquid containing 0.12 gramme of methamphetamine hydrochloride; and one count of ‘possessing an apparatus fit and intended for consuming dangerous drugs’ (charge 3), namely a glass bottle.", "zh-HK": "申請人在區域法院被控一‍項「販運危險藥物」罪(“第‍一項控罪”)，該控罪涉及的危險藥物為10.62 克晶狀固體內含10.59 克甲基苯丙胺鹽酸鹽(俗稱「冰」)；一項「管有危險藥物」罪(“第二項控罪”)，該控罪涉及的危險藥物是23 毫升液體內含0.12克甲基苯丙胺鹽酸鹽，及一項「管有適合於及擬用作吸食危險藥物的器具」罪(第三項控罪)，該控罪涉及的器具是一個玻璃樽。" } }, { "doc_id": 89, "seg_id": 3, "translation": { "en": "The Applicant denied charge 1 but pleaded guilty to charges 2 and 3. After trial he was also convicted of charge 1 by District Judge Li.", "zh-HK": "申請人否認第一項控罪，但承認第二項及第三項控罪。經審訊後，區域法院法官李‍瀚‍良裁定申請人第一項控罪罪名亦成立。" } }, { "doc_id": 89, "seg_id": 4, "translation": { "en": "The Applicant was sentenced to imprisonment for 6½ years, 8 months and 6 months respectively for the 3 charges, with all the terms to run concurrently.", "zh-HK": "就三項控罪，申請人分別被判入獄6½ 年、8 個月及6 個月，所有刑期同期執行。" } }, { "doc_id": 89, "seg_id": 5, "translation": { "en": "The Applicant sought leave to appeal against conviction and sentence on charge 1. The application for leave to appeal against conviction has been dismissed as the Applicant filed a notice of abandonment on 24 January 2008. We therefore only have to deal with his application for leave to appeal against sentence.", "zh-HK": "申請人針對第一項控罪的定罪和判刑，提出上訴許可申請。就定罪的上訴許可申請，由於申請人在2008 年1 月24 日存檔「放棄通知書」，該申請因而被撤銷。本庭只需處理判刑的上訴許可申請。" } }, { "doc_id": 89, "seg_id": 6, "translation": { "en": "Agreed facts", "zh-HK": "控辯兩方同意的案情" } }, { "doc_id": 89, "seg_id": 7, "translation": { "en": "At trial, the prosecution and defence had no dispute on most of the facts of the case.", "zh-HK": "原審時，控辯雙方就案中大部份的案情並沒有爭議。" } }, { "doc_id": 89, "seg_id": 8, "translation": { "en": "According to the agreed facts, at about 1210 hours on 20 November 2006, police officers arrived at the Applicant’s residence in Lei Muk Shue Estate to carry out an anti-dangerous-drugs operation and conduct investigations. At that time, the Applicant was sitting in the living room behind a foldable table on which there were the dangerous drugs and apparatus in question, namely:", "zh-HK": "雙方同意的案情顯示，在2006 年11 月20 日約12:10 時，警方人員到達申請人位於梨木樹邨的住所執行反危險藥物行動及進行調查。當時申請人正坐在飯廳，在他面前有一張摺檯，檯上放有涉案的危險藥物和器具，即：" } }, { "doc_id": 89, "seg_id": 9, "translation": { "en": "(1)Two plastic bags containing the dangerous drugs involved in charge 1, namely 7.69 grammes of a crystalline solid containing 7.67 grammes of methamphetamine hydrochloride and 2.93 grammes of a crystalline solid containing 2.92 grammes of methamphetamine hydrochloride.", "zh-HK": "兩個膠袋，內藏第一項控罪所涉的危險藥物；它們的重量分別為7.69 克的晶體內含7.67 克的甲基苯丙胺鹽酸鹽，以‍及2.93 克的晶體內含2.92 克的甲基苯丙胺鹽酸鹽。" } }, { "doc_id": 89, "seg_id": 10, "translation": { "en": "(2)A glass bottle filled with liquid, together with a straw. The liquid in the glass bottle was the dangerous drug involved in charge 2, whereas the glass bottle was the apparatus involved in charge 3.", "zh-HK": "一個玻璃樽內盛有液體及連同吸管。玻璃樽內的液體是第‍二項控罪所涉的危險藥物，而玻璃樽則是第三項控罪所涉的器具。" } }, { "doc_id": 89, "seg_id": 11, "translation": { "en": "On the table there were also 3 lighters, several rolls of toilet paper and some toilet paper shreds.", "zh-HK": "此外，檯上亦放有三個打火機和數卷厠紙和厠紙碎。" } }, { "doc_id": 89, "seg_id": 12, "translation": { "en": "The prosecution and defence also agreed that the retail price of the two plastic bags of ‘ice’ involved in charge 1 was HK$4,471.", "zh-HK": "控辯雙方亦同意第‍一項控罪所涉的兩‍膠袋「冰」的零售價是港幣4,471 元。" } }, { "doc_id": 89, "seg_id": 13, "translation": { "en": "The trial on charge 1", "zh-HK": "第一項控罪的審訊" } }, { "doc_id": 89, "seg_id": 14, "translation": { "en": "The particulars of charge 1 were that ‘on 17 November 2006 in Hong Kong [the Applicant] unlawfully trafficked in dangerous drugs’, namely 10.62 grammes of a crystalline solid containing 10.59 grammes of methamphetamine hydrochloride.", "zh-HK": "就第一項控罪，控罪詳情指申請人「於2006 年11 月17 日在香港，非法販運危險藥物」，即內含10.59 克甲基苯丙胺鹽酸鹽的10.62 克晶狀固體。" } }, { "doc_id": 89, "seg_id": 15, "translation": { "en": "The main issue under dispute was whether the Applicant had trafficked in the two plastic bags of dangerous drugs as stated in the charge.", "zh-HK": "控辯兩方主要的爭議是申請人是否販運控罪所涉的兩膠袋毒品。" } }, { "doc_id": 89, "seg_id": 16, "translation": { "en": "The prosecution mainly relied on the verbal confessions made by the Applicant at the scene of arrest as well as the contents of a post-recorded cautioned statement and the record of an interview in order to support the charge. The prosecution’s evidence was that, at the scene of arrest, the Applicant said, under caution and in response to enquiries, that the two plastic bags of ‘ice’ were brought from the Mainland and that the glass bottle was for consuming ‘ice’. When the police arrested him for trafficking in a dangerous drug and possession of an apparatus fit and intended for consuming dangerous drugs, he said the drugs were for his own consumption in his spare time and were not for sale to others. The police officer post-recorded in his notebook what the Applicant said, and the Applicant then read and signed on the record for confirmation. At the subsequent recorded interview, the Applicant said that the two bags of ‘ice’ involved in charge 1 and the glass bottle involved in charge 3 were given by a friend in Mainland China called ‘Ah Shan’ (transliteration) to him to ‘play with’ and he brought those items to Hong Kong from Shenzhen.", "zh-HK": "控方主要倚靠申請人在拘捕現場的口頭招認，以及補錄警誡供詞和會面記錄的內容支持控罪。控方的證據指申請人在拘捕現場經警誡後，回答查問時說兩膠袋「冰」是從大陸帶回來的，而玻璃樽是用作吸食冰之用。當警員以他販運毒品和管有器具適合用作吸食毒品罪拘捕他時，申請人回答說毒品是他自己吸食的，只是消磨時間，不是賣給別人的。警員把申請人這些說話補錄在記事冊，並由申請人閱讀和簽署作實。在其後的會面記錄中，申請人說第‍一項控罪所涉的兩膠袋「冰」以及第‍三項控罪所涉的玻璃樽是一位名叫「亞山」的大陸朋友免費給他「玩」的，而由他從深圳帶回港。" } }, { "doc_id": 89, "seg_id": 17, "translation": { "en": "At trial, the Applicant neither gave evidence nor called any witness. His defence was that he had been induced by the police to make all the confessions and that he had never said to the police that the drugs in question were brought to Hong Kong by him.", "zh-HK": "原審時申請人沒有作供，亦沒有傳召證人。他的抗辯理由是所有招認都是警方誘使他說的，他從沒有告訴警方涉案的毒品是他從大陸帶回香港。" } }, { "doc_id": 89, "seg_id": 18, "translation": { "en": "Having considered the prosecution evidence, the trial judge was satisfied that the Applicant had made the verbal confessions at the scene of arrest and that the record of interview had been given by him voluntarily. On that basis, the Applicant was convicted on charge 1.", "zh-HK": "經考慮控方的證據後，原審法官確信申請人曾在拘捕現場作出口頭招認，而會面記錄亦是他自願提供的，因而裁定第一項控罪罪名成立。" } }, { "doc_id": 89, "seg_id": 19, "translation": { "en": "In paragraph 24 of his judgment, the trial judge explained his decision as follows:", "zh-HK": "在其判詞第 24 段，原審法官就其判決給予說明如下：" } }, { "doc_id": 89, "seg_id": 20, "translation": { "en": "According to what the Defendant said in exhibit P11, [the drugs] were given to him as a gift by a friend and the quantity is sufficient for the Defendant’s consumption for one month. That friend only arranged to meet him occasionally and he did not even know his friend’s telephone number. Furthermore, as an agreed fact [exhibit P11, paragraph 4], the value of the dangerous drugs is about $4,500. In light of all this, the suggestion that the dangerous drugs in question are all for the Defendant’s own consumption is in my view contrary to common sense. The term ‘trafficking’ is defined in the ordinance to include importing a dangerous drug into Hong Kong. On the basis of the Defendant’s confession, I am satisfied that his act of bringing the drugs to Hong Kong already constituted trafficking in them, and hence I find the defendant guilty of the offence. However, I do not fully accept that all the drugs are for his own consumption.", "zh-HK": "根據被告人在證物P11所說，是一名朋友送給他的，份量足夠被告人一個月吸食，而此人只是間中約他，連電話也不知的朋友，加上同意案情(證物P11，第四段)毒品價值約$4,500，本席認為涉案毒品全部是被告人自用的講法不合常理。根據法例，『販運』的定義包括把毒品進口入香港，‍基於被告人的招認，本席確信他將毒品帶回香港的行為已構成販運毒品罪，故裁定被告人販運毒品罪名成位，但不會完全接受所有毒品是他自己吸食的。」" } }, { "doc_id": 89, "seg_id": 21, "translation": { "en": "The sentence imposed by the trial judge", "zh-HK": "原審法官的判刑" } }, { "doc_id": 89, "seg_id": 22, "translation": { "en": "The Applicant is aged 39, married and has a daughter aged 11. He has been a drug addict for 5 to 6 years. He has two previous conviction records, one of which is drug-related. In 2004, in respect of an offence of possessing dangerous drugs, he was sentenced to imprisonment for 4 months, suspended for 18 months, as well as a fine of $3,000. The Applicant runs decoration and funeral businesses in partnership with others and earns a total monthly income of about $40,000.", "zh-HK": "申請人39 歲，已婚，有一名11 歲的女兒。他有5 至6 年毒癮。申請人有兩次犯罪記錄，其中一次是與毒品有關。他在2004 年因管有危險藥物被判入獄4 個月，但緩刑18 個月，另罰款3,000 元。申請人與人合夥經營裝修生意和殯儀生意，每月共有約4 萬元入息。" } }, { "doc_id": 89, "seg_id": 23, "translation": { "en": "Counsel for the Applicant submitted in mitigation that the dangerous drugs were for the Applicant’s own consumption, but the trial judge harboured doubts about this. The Applicant therefore elected to give evidence in support of the submission. The trial judge considered the Applicant’s evidence and found it incredible. In paragraphs 7 and 8 of his Reasons for Sentence, the trial judge said:", "zh-HK": "申請人的代表律師求情時表示涉案的毒品是申請人自己吸食的，但原審法官對此有所懷疑。申請人因此選擇作供支持其說法。經考慮其證言後，原審法官認為他的證言不可信。原審法官在「判刑理由」第 7和8 段說：" } }, { "doc_id": 89, "seg_id": 24, "translation": { "en": "I take into account the following factors:", "zh-HK": "本席考慮以下因素：" } }, { "doc_id": 89, "seg_id": 25, "translation": { "en": "The ‘ice’ in question was contained in two bags, which weigh 7.67 grammes and 2.72 grammes.", "zh-HK": "涉案的『冰』分兩包，一包重7.67 克另一包重2.72 克，" } }, { "doc_id": 89, "seg_id": 26, "translation": { "en": "The Defendant’s testimony in explaining that the dangerous drugs are for his own use is highly incredible.", "zh-HK": "被告人解釋毒品用來自用的證供甚不可信，" } }, { "doc_id": 89, "seg_id": 27, "translation": { "en": "The dangerous drugs, which are worth $4,500, could not have been given to him for free, in particular by a friend whose telephone number the Defendant did not even know, and the quantity of the drugs is sufficient for consumption by the Defendant for one month.", "zh-HK": "毒品值$4,500，不可能是免費給他的，[尤]其是一個連電話號碼也不知的朋友，而這份量足夠被告人一個月吸食，" } }, { "doc_id": 89, "seg_id": 28, "translation": { "en": "The Defendant is addicted to drugs.", "zh-HK": "被告人有毒癮。" } }, { "doc_id": 89, "seg_id": 29, "translation": { "en": "On the above analysis, I am satisfied that the heavier bag [of dangerous drugs] is for trafficking and the bag with a smaller quantity is for the Defendant’s own use.", "zh-HK": "經以上的分析，本席確信比較重的一包用作販賣的，而少的一包是被告人自用的。」" } }, { "doc_id": 89, "seg_id": 30, "translation": { "en": "As for sentencing, the trial judge explained his decision in paragraphs 9 to 12 of his Reasons for Sentence, which run as follows:", "zh-HK": "就量刑方面，原審法官在「判刑理由」第 9至12 段給予說明如下：" } }, { "doc_id": 89, "seg_id": 31, "translation": { "en": "On charge 1, for the ‘ice’ that weighs 7.67 grammes, the starting point should be 6 years. As for the ‘ice’ which weighs 2.92 grammes and which is for self-consumption, the starting point should be 15 months. As the Defendant is addicted to drugs, the risk of him sharing the dangerous drugs with others cannot be ruled out, and hence the sentence is to be enhanced by 6 months on account of such latent risk, making a total term of 21 months. However, as the Defendant admitted before trial that the ‘ice’ was for self-consumption, a one-third discount is given for this part of the sentence and the term of imprisonment for the self-consumption portion should be 14 months. Taking into account the totality principle and the limit of my sentencing jurisdiction, I hereby sentence the Defendant to 6½ years’ imprisonment on charge 1.", "zh-HK": "就第一控罪，以7.67 克『冰』的重量，量刑起點應為6 年，而部份自用的2.92 克『冰』 ，量刑起點為15 個月，由於被告人有毒癮，不能抹殺與其他人共用的風險，故另再加6 個月為潛在風險的刑罰，共21 個月。但被告人在審訊前已表示承認這些『冰』是自用的，故這部份刑期有3份1減免 ，單就自用的部份應入獄14 個月。考慮過整體判刑的原則和本席的判刑權限，現判被告人就第‍一控罪入獄6 年半。" } }, { "doc_id": 89, "seg_id": 32, "translation": { "en": "On charge 2, I adopt 12 months as the starting point and reduce it by 4 months on account of the guilty plea. The Defendant is sentenced to 8 months’ imprisonment.", "zh-HK": "至於第二控罪 ，本席以12 個月為量刑起點，認罪減4 個月，判被告人入獄8 個月。" } }, { "doc_id": 89, "seg_id": 33, "translation": { "en": "On charge 3, I adopt 9 months as the starting point and reduce it by 3 months on account of the guilty plea. The Defendant is sentenced to 6 months’ imprisonment.", "zh-HK": "至於第三控罪，以9 個月為量刑起點，認罪減3 個月，判被告人入獄6 個月。" } }, { "doc_id": 89, "seg_id": 34, "translation": { "en": "Having considered the circumstances as a whole, I order that all the sentences shall run concurrently, and the Defendant is sentenced to imprisonment for a total of 6½ years.", "zh-HK": "考慮過整體情況，本席命令所有刑期同期執行，被告人共入獄6 年半。」" } }, { "doc_id": 89, "seg_id": 35, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 89, "seg_id": 36, "translation": { "en": "Concerning charge 1, the Applicant has put forward the following three grounds of appeal against sentence:", "zh-HK": "就第一項控罪，申請人共提出三項上訴減刑理由如下：" } }, { "doc_id": 89, "seg_id": 37, "translation": { "en": "After determining the sentence for the dangerous drugs which he reckoned were for the Applicant’s own use, the trial judge added it up with the sentence for the dangerous drugs which he reckoned were trafficked in by the Applicant. Such an approach was wrong in principle and rendered the overall sentence in excess of what was stated in the guideline in AG v. Ching Kwok Hung [1991] 2 HKLR 125, thereby causing unreasonableness and unfairness to the Applicant.", "zh-HK": "原審法官將他認為是申請人自用的毒品量刑後，再與他認為是申請人販運的毒品的刑罰相加，是犯了原則上的錯誤。同時亦引致整體刑罰超越AG v. Ching Kwok Hung [1991] 2 HKLR 125的指引，造成不合理和不公平的情況。" } }, { "doc_id": 89, "seg_id": 38, "translation": { "en": "In light of the trial judge’s finding that 2.92 grammes of the ‘ice’ is for the Applicant’s own consumption, a term of imprisonment of 6½ years is excessive.", "zh-HK": "有鑑於原審法官裁定其中2.92 克「冰」為申請人自用，6½ 年監禁刑罰是過重及嚴苛。" } }, { "doc_id": 89, "seg_id": 39, "translation": { "en": "In the circumstances of the case as a whole, the overall sentence of 6½ years’ imprisonment is manifestly excessive.", "zh-HK": "以整體案情情況而言，6½ 年監禁的整體刑罰明顯是過重和‍嚴苛。" } }, { "doc_id": 89, "seg_id": 40, "translation": { "en": "The basis for conviction on charge 1", "zh-HK": "第‍一項控罪的定罪基礎" } }, { "doc_id": 89, "seg_id": 41, "translation": { "en": "Before dealing specifically with the Applicant’s appeal against sentence, the basis for his conviction on charge 1 has to be considered.", "zh-HK": "在具體討論申請人就判刑的上訴之前，須先考慮第‍一項控罪的定罪基礎。" } }, { "doc_id": 89, "seg_id": 42, "translation": { "en": "The trial judge pointed out in paragraph 3 of the judgment that the prosecution case mainly rested on the confession made by the Applicant at the scene of arrest and in the record of interview that the drugs in question were brought by him to Hong Kong from the Mainland. In paragraph 24 of his judgment, the trial judge further referred to the definition of ‘trafficking’ in section 2 of the Dangerous Drugs Ordinance and held that as the Applicant had admitted that he had brought the drugs from the Mainland to Hong Kong, his act constituted the importing of the drugs into Hong Kong, and he was therefore convicted on charge 1. Mr Chan, Counsel for the Applicant, submits that the trial judge convicted the Applicant on the charge solely on the basis of his confession that he had brought the drugs into Hong Kong.", "zh-HK": "原審法官在判詞第 3 段指出，控方主要依靠申請人在拘捕現場和在會面記錄中曾作出的招認，指涉案毒品是他從內地帶進香港支持控罪。原審法官在判詞第 24 段進一步援引《危險藥物條例》第 2 條有關「販運」的定義，指出基於申請人承認把毒品從內地帶回香港，他的行為構成把毒品進口香港，因此裁定他第‍一項控罪罪名成立。代表申請人的陳‍大律師在陳詞中指出，原審法官純是因為申請人招認把毒品帶進香港而被判定控罪成立。" } }, { "doc_id": 89, "seg_id": 43, "translation": { "en": "Mr Lee, Counsel for the prosecution, takes issue with Mr Chan’s submission. Mr Lee contends that, as shown by the trial judge’s statement in paragraph 24 of his judgment that he did not fully accept that all the drugs were for the Applicant’s own use, the Applicant was not convicted solely on the basis of his act of bringing the dangerous drugs to Hong Kong. The judge was of the view that the conviction on charge 1 also comprised the actual trafficking in dangerous drugs.", "zh-HK": "代表控方的李‍大律師不同意陳大律師的陳詞。他認為由於原審法官在判詞第 24 段已說明不完全接受所有毒品是申請人自己吸食，足見原審法官不是純粹因為申請人把毒品帶回香港而將他定罪。他認為第‍一項控罪的定罪亦包括實際販賣毒品。" } }, { "doc_id": 89, "seg_id": 44, "translation": { "en": "In our view, generally speaking a judge has a duty to state clearly in his judgment the factual and legal bases of a conviction. In the present case, the trial judge pointed out at the beginning of his judgment that the basis of prosecuting the Applicant was his confession of having brought the drugs into Hong Kong. Furthermore, apart from this, if the trial judge considered there were other factual and legal bases in the case which constituted the offence of trafficking, he must specify those bases in his judgment. It did not suffice to merely state that the Applicant’s allegation of having the drugs for his own use was against common sense and that the judge did not accept that all the drugs were for the Applicant’s own use. Further, even if the trial judge did not accept that the Applicant had mentioned in his confession that the drugs were for his own use, this did not mean that there was concrete evidence to prove that the Applicant had not only brought the drugs into Hong Kong but had also actually trafficked in the drugs. If the trial judge intended to infer from the quantity of the drugs or from other evidence that the Applicant had actually trafficked in the drugs, he must specify in his judgment the factual basis and grounds upon which he made such an inference. However, the trial judge made no mention in his judgment of any inference of trafficking in drugs. For these reasons, in light of the evidence in the present case and the trial judge’s judgment, the Applicant’s confession of having brought the drugs into Hong Kong was the only basis on which he was convicted of charge 1.", "zh-HK": "本庭認為，一般而言，法官在判詞中有責任清楚說明定罪的事實和法律基礎。在本案中，原審法官在判詞初段已指出控方檢控的基礎是申請人招認把毒品帶進香港。其次，倘若除此點外，原審法官認為案中還有其他構成販運的事實和法律基礎，他必須在判詞中說明。單是指出涉案毒品是申請人自用的說法不合常理，而他亦不會接受所有毒品是申請人自用，並不足夠。再者，即使原審法官不接納申請人在作出招認時提及毒品是自用的說法，這亦不等同案中有具體證供可證明申請人不但把毒品帶進香港，還有實際販賣毒品的行動。如原審法官擬從毒品的份量或其他證據推論申請人有實際販賣毒品的行為，他必須在判詞中說明作出推論的事實基礎和論據。但原審法官沒有在判詞中提及任何販賣毒品的推論。是故，縱觀本案的證據和原審法官的判詞，第‍一項控罪的定罪基礎僅是因為申請人招認把毒品帶進香港。" } }, { "doc_id": 89, "seg_id": 45, "translation": { "en": "The sentence on charge 1", "zh-HK": "第一項控罪的判刑" } }, { "doc_id": 89, "seg_id": 46, "translation": { "en": "In The Queen v. Chan Mung Lung [1992] 2 HKCLR 127, the defendant was found to be in possession of heroin upon his arrival in Hong Kong via Lo Wu. He pleaded guilty to a charge of trafficking in a dangerous drug but claimed that the drug was for his own use. He was sentenced to 4½ years’ imprisonment. The Court of Appeal held that a relevant sentencing consideration was whether the defendant had brought the drugs into Hong Kong for self-consumption or for trafficking, and that self-consumption constituted a strong mitigating factor. The Court of Appeal went on the hold that, as the trial judge had not made a finding on whether the drugs brought by the defendant into Hong Kong were for his own use, he was to be sentenced on the factual basis that was the most favourable to him, and the defendant’s term of imprisonment was accordingly reduced to 1½ years.", "zh-HK": "在The Queen v. Chan Mung Lung [1992] 2 HKCLR 127案中，被告人從羅湖抵港後，被發現藏有海洛英。他承認販運危險藥物罪，但稱毒品是自用。他被判入獄4½ 年。上訴法庭裁定在判刑時，被告人把毒品帶進香港是供自用還是販賣是一項相關的考慮。如果毒品是供自用的話，這是一項有力的減刑因素。在該案中，由於原審法官沒有裁斷被告人帶進香港的毒品是否供他自用，上訴法庭認為須按對被告人最有利的事實基礎給予判刑，因而決定減刑至1½ 年。" } }, { "doc_id": 89, "seg_id": 47, "translation": { "en": "In R v. Chung Kau Fai [1993] 1 HKC 42, the defendant was found to be in possession of heroin upon his arrival in Hong Kong from Bangkok. He pleaded guilty to trafficking in a dangerous drug. It was submitted in mitigation on his behalf that the drug was for his own use. The trial judge sentenced the defendant to 9 years’ imprisonment, rejecting as incredible his claim that the drug was entirely for his own use. In considering the defendant’s appeal, the Court of Appeal reiterated that it would be a mitigating factor if the defendant had brought the drug to Hong Kong for self-consumption. The Court of Appeal took the view that, prior to sentencing the trial judge neither clearly indicated that he did not accept the defendant’s claim that the drug was entirely for his own use, nor gave the defendant an opportunity to adduce evidence in support of his claim, and therefore what the defendant said by way of mitigation must be taken as genuine for sentencing purposes. The defendant’s term of imprisonment was reduced by two years.", "zh-HK": "在R. v. Chung Kau Fai [1993] 1 HKC 42案中，被告人從曼谷抵港後，被發現藏有海洛英。他承認販運危險藥物。代表律師在求情時指毒品是作自用。原審法官在判予9 年監禁時，表示被告人稱毒品全是自用的說法不可信。上訴法庭在考慮被告人的上訴時，重申如果被告人把毒品帶進香港是自用的話，這是一項減刑因素。上訴法庭認為由於原審法官在判刑前沒有表明不接受被告人指毒品全是自用的說法，以及沒有給予被告人機會提出證據支持其說法，因此在量刑時須當如被告人的求情理由為真確，故減刑兩年。" } }, { "doc_id": 89, "seg_id": 48, "translation": { "en": "Similarly, in a more recent case, HKSAR v. Wong Suet Hau & Another [2002] 1 HKLRD 69, the Court of Appeal pointed out that if a defendant pleaded guilty to trafficking in dangerous drugs but claimed that the drugs were mainly for his own use, the judge must address and consider this mitigating factor; and if the judge accepted that a substantial portion of the drugs was for the defendant’s self-consumption, he must acknowledge this by adjusting the sentence as appropriate.", "zh-HK": "在較近期的HKSAR v. Wong Suet Hau & Another [2002] 1 HKLRD 69，上訴法庭同樣指出如果一名被告人承認販運危險藥物罪，但指稱毒品主要是作自用，則法官須正視和考慮這項求情理由。若然法官接納相當份量的毒品是作自用的話，他必須適當調整刑期以反映這個情況。" } }, { "doc_id": 89, "seg_id": 49, "translation": { "en": "In the present case, the dominant mitigating factor put forward by the Applicant was that the drugs involved in charge 1 were all for his own use. Nonetheless, the trial judge doubted this claim and, quite appropriately, conducted an inquiry into it. Having heard the Applicant’s testimony, the trial judge considered it incredible and rejected the claim that all the drugs were for the Applicant’s own use. The trial judge further held that the heavier of the two bags of drugs was for trafficking and the other one was for the Applicant’s own use.", "zh-HK": "在本案中，申請人的主要求情理由是第‍一項控罪所涉的毒品全是作自用。然而，原審法官對這個說法存有懷疑，他就此進行研訊乃是適當的做法。在申請人作供後 ，原審法官認為他的證言不可信，拒絕接納全部毒品都是申請人自用。原審法官亦進一步裁斷兩膠袋毒品中較重的一袋是用作販賣，而較輕的一袋則是申請人自用的。" } }, { "doc_id": 89, "seg_id": 50, "translation": { "en": "In our judgment, in the given circumstances, the trial judge should first have fixed the starting point for charge 1 on the basis of the total weight of the two bags of drugs, and then reduced the sentence as appropriate for the reasons that part of the drugs was for the Applicant’s self-consumption and that he had admitted from the outset that the drugs were for self-consumption.", "zh-HK": "本庭認為在此情況下，原審法官在判刑時，應以兩膠袋毒品的總重量作為第‍一項控罪的量刑起點，然後因應部分毒品是作自用和申請人自始都承認毒品是自用兩點，給予適當的減刑。" } }, { "doc_id": 89, "seg_id": 51, "translation": { "en": "Here, however, the trial judge adopted two starting points for the two plastic bags of drugs, respectively on the basis of trafficking and possession. With respect, this approach was in our view improper. First, the Applicant faced only one charge of trafficking, not two charges, in relation to the two bags of drugs, and it was wrong in principle to fix two starting points for one single charge. Furthermore, the total weight of the two bags of ‘ice’ was 10.59 grammes and, pursuant to the guidelines on the starting point of ‘ice’-related offences as laid down in AG v. Ching Kwok Hung [1991] 2 HKLR 125, the starting point for the present case should not exceed 7 years and one month. However, on the trial judge’s approach, the two starting points added up to 7 years and 3 months (6 years + 15 months), and further adding to it the ‘latent risk’ factor, the starting point became 7 years and 9 months (6 years + 21 months), which was on the high side. Even taking into account the Applicant’s admission all along that the drugs were for self-consumption, the eventual sentence of 7 years and 2 months imposed by the trial judge was still slightly excessive.", "zh-HK": "然而，原審法官就兩膠袋毒品分別按販運危險藥物和管有危險藥物給予兩個量刑起點，這個做法並不適當。首先，申請人就這兩膠袋毒品祇是面對一項販運危險藥物的控罪，而非兩項控罪 ；就一‍項控罪而設予兩個量刑起點，在原則上並不正確。其次，兩個膠袋中的「冰」的總重量是10.59 克，按AG v. Ching Kwok Hung [1991] 2 HKLR 125案有關「冰」的量刑起點指引 ，本案的量刑起點應不超過7 年1 個月。但按原審法官的做法，兩個量刑起點的總和是7 年3 個月(6 年 + 15 個月)，再加上「潛在風險」的因素，量刑起點變成7 年9 個月(6 年 + 21 個月)，造成偏高的情況。即使在考慮申請人一直承認毒品是自用，原審法官最終的判刑(即7 年2 個月)亦是略高。" } }, { "doc_id": 89, "seg_id": 52, "translation": { "en": "Apart from this, in relation to the lighter bag of drugs, it was inappropriate for the trial judge to add 6 months to the sentence on the ground of ‘latent risk’. First, the trial judge had accepted that the Applicant was addicted to drugs, and there was nothing peculiar about the packing and quantity of the lighter bag of drugs which would indicate a possibility of the drugs being sold to or shared with others. Second, and more importantly, given that the trial judge had inferred that only this bag of ‘ice’ was for the Applicant’s own use and that the other bag of ‘ice’ was for trafficking, he should not have proceeded to infer, merely by reason of the Applicant’s drug addiction, that he might share the drugs with others, and then enhance the sentence by 6 months on the basis of this inferred risk.", "zh-HK": "除此以外，原審法官就較輕的一膠袋毒品，以「潛在風險」為由，再加6 個月刑期的做法亦不適當。首先，原審法官接納申請人有毒癮。而就這較輕的一膠袋毒品而言，它的包裝和份量都沒有特別之處，以致可顯示有作販賣或與人共用的可能性。其次，亦是尤為重要的一點，原審法官既已推定祇有這一膠袋「冰」是申請人自用，而另外一膠袋「冰」是作販賣，便不應祇因申請人有毒癮便再推定他可能會與他人共用毒品，並因應這個推定的風險，把刑期提高6 個月。" } }, { "doc_id": 89, "seg_id": 53, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 89, "seg_id": 54, "translation": { "en": "On the basis of the above analysis, the sentence on charge 1 as imposed by the trial judge is in our judgment improper in principle and should be set aside.", "zh-HK": "基於上述分析，本庭認為原審法官就第‍一項控罪的判刑在原則上有不當之處，有關的判刑應予以擱置。" } }, { "doc_id": 89, "seg_id": 55, "translation": { "en": "In light of the weight of the drugs involved in charge 1, we adopt a starting point of 7 years and one month. Taking into account the trial judge’s finding that 2.92 grammes of the ‘ice’ involved was for the Applicant’s own use and the mitigating factor that the Applicant had all along admitted that the drugs were for his own use, we reduce the term of imprisonment by two years. The sentence for charge 1 should be 5 years’ imprisonment.", "zh-HK": "按第‍一項控罪所涉毒品的重量，本庭採納7 年1 個月作為量刑起點。經考慮原審法官裁定其中2.92 克的「冰」是申請人自用，以及申請人一直承認毒品是自用的求情因素，本庭給予兩年的減刑。第‍一項控罪的判刑應是5 年。" } }, { "doc_id": 89, "seg_id": 56, "translation": { "en": "Accordingly, we grant leave to appeal against sentence on charge 1. Treating the application as the appeal, we allow the appeal against sentence on charge 1, alter the term of imprisonment to 5 years and order that it shall run concurrently with the sentences on charges 2 and 3.", "zh-HK": "本庭因此批准申請人就第‍一項控罪的判罰的上訴許可申請，並視之為正式上訴。本庭批准第‍一項控罪的判罰的上訴，把判刑改為5 年，與第‍二項和第‍三項控罪的刑期同期執行。" } }, { "doc_id": 89, "seg_id": 57, "translation": { "en": "Mr Chan Siu Ming, instructed by Louis Chan & Co., for the Applicant", "zh-HK": "申請人：由陳雲日律師行轉聘陳銚明大律師代表出庭。" } }, { "doc_id": 89, "seg_id": 58, "translation": { "en": "Mr Robert Lee, Senior Assistant Director of Public Prosecutions, and Ms Virginia Lau, Senior Government Counsel, for the Respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員李紹強及高級政府律師劉少儀代表出庭。" } }, { "doc_id": 90, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 90, "seg_id": 2, "translation": { "en": "Leave to appeal against sentence", "zh-HK": "刑期上訴許可" } }, { "doc_id": 90, "seg_id": 3, "translation": { "en": "The applicant was charged with two offences. The first charge (i.e. Charge 1 in the charge sheet) was making a false representation to an immigration assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance, contrary to section 42(1)(a) of the Immigration Ordinance (Cap. 115 of the Laws of Hong Kong). The second charge (i.e. Charge 5 in the charge sheet) was conspiracy to obtain services by deception, contrary to section 18A(1) of the Theft Ordinance (Cap. 210 of the Laws of Hong Kong) and sections 159A and 159C of the Crimes Ordinance (Cap. 200 of the Laws of Hong Kong).", "zh-HK": "申請人被控兩項控罪。第一項控罪（即控罪書的第一項控罪）是向一名根據或為執行《入境條例》第 II 部而合法行事的入境事務助理員作出虛假的申述，違反《入境條例》（香港法例第 115 章）第 42(1)(a) 條。第二項控罪（即控罪書的第五項控罪）是串謀以欺騙手段取得服務，違反《盜竊罪條例》（香港法例第 210 章）第 18A(1) 條和《刑事罪行條例》（香港法例第 200 章）第 159A 及 159C 條。" } }, { "doc_id": 90, "seg_id": 4, "translation": { "en": "The applicant denied all the charges. The case was heard before Deputy District Judge Douglas Yau. After the prosecution adduced evidence, the applicant admitted the first charge, and when the Judge held that he had a case to answer in respect of the second charge, he also pleaded guilty to that charge.", "zh-HK": "申請人否認所有控罪。案件由區域法院暫委法官游德康審理，申請人在控方提出証據後承認第一項控罪及於游法官裁定他需要就第二項控罪答辯時承認這項控罪。" } }, { "doc_id": 90, "seg_id": 5, "translation": { "en": "The Judge adopted 3 years’ imprisonment as the starting point for the first charge and, as the applicant did not plead guilty at the commencement of the trial, reduced the term by approximately 16% — instead of the usual one third — to 2 years and 6 months. For the second charge, the Judge also adopted 3 years’ imprisonment as the starting point and, again giving a discount of approximately 16%, reduced the term to 2 years and 6 months. The two terms were ordered to run concurrently. The applicant applies for leave to appeal against sentence.", "zh-HK": "游法官以三年監禁為第一項控罪的量刑基準，因申請人不是在審訊開始時就承認控罪，所以將一般給予的三分一刑期扣減改為約百分之十六的刑期扣減，第一項控罪的刑期是兩年六個月監禁。游法官同樣以三年監禁作為第二項控罪的量刑基準及給予申請人約百分之十六的刑期扣減，刑期為兩年六個月監禁，兩項刑期同期執行。申請人就刑期提出上訴許可申請。" } }, { "doc_id": 90, "seg_id": 6, "translation": { "en": "Particulars of charges", "zh-HK": "控罪詳情" } }, { "doc_id": 90, "seg_id": 7, "translation": { "en": "The particulars of the first charge were that the applicant, “on the 12th day of November 2007 and in Hong Kong, made to an Immigration Assistant lawfully acting under or in the execution of Part II (Departure Examination) of the Immigration Ordinance, a representation which [the applicant] knew to be false or did not believe to be true, namely he was leaving Hong Kong for Thailand”.", "zh-HK": "第一項控罪的罪行詳情是申請人「於 2007 年 11 月 12 日在香港，向一名根據或執行《入境條例》第 II 部[離境訊問]而合法行事的入境事務助理員作出明知為虛假或自己亦不信為真確的申述，即申述他正離開香港前往泰國」。" } }, { "doc_id": 90, "seg_id": 8, "translation": { "en": "The particulars of the second charge were that the applicant and the 3rd defendant herein, “on or about the 12th day of November 2007 and in Hong Kong, conspired to dishonestly obtain services from Cathay Pacific Airways, namely allowing the applicant to board Flight CX 293 from Hong Kong to Rome on the strength of a boarding pass relating to that Flight and belonging to Chan Kwok Keung, by deception, namely by falsely representing that the applicant was the said Chan Kwok Keung”.", "zh-HK": "第二項控罪的罪行詳情是申請人與本案的第三被告人「於或約於 2007 年 11 月 12 日在香港，串謀以欺騙手段，即虛假地表示該申請人是陳國強，從而不誠實地取得國泰航空公司的服務，即以一張屬於陳國強的香港往羅馬的 CX 293 航班的登機證，讓申請人登上該班航機」。" } }, { "doc_id": 90, "seg_id": 9, "translation": { "en": "Facts", "zh-HK": "案情" } }, { "doc_id": 90, "seg_id": 10, "translation": { "en": "The applicant was a resident of Mainland China. He entered Hong Kong on 12 November 2007 via Lok Ma Chau. On the same day, at the check-in counter of Cathay Pacific Airways (“Cathay”) at Kowloon Station of the Airport Express Line, he produced a PRC passport and checked in for a flight bound for Bangkok, Thailand. The staff members of Cathay issued to the applicant a boarding pass for the flight to Bangkok. On the same day, the applicant went through departure examination procedures at the Hong Kong International Airport for going to Bangkok. Subsequently the applicant, holding a boarding pass and a PRC passport, queued up at the boarding gate for a flight bound for Rome, Italy. A security officer of Cathay requested the applicant to produce his boarding pass and passport. It was then discovered that the name on the boarding pass was different from that on his passport. At the same time, immigration officers intercepted the 3rd defendant nearby and questioned him. He later admitted to the immigration officers that he was instructed by someone called “Xiao Gao” to take the applicant and another passenger to Rome and that, upon arrival at the airport at Rome, he would give the applicant a passport for him to go through the entry formalities. The name of the holder of that passport was with the same as the name on the boarding pass held by the applicant for going to Rome. The 3rd defendant said that the boarding pass and passport in question were given to him by “Xiao Gao” and that he would go to Rome with the applicant on that flight.", "zh-HK": "申請人是一名內地居民。他於 2007 年 11 月 12 日經落馬洲進入香港境內，並於同日在機場快線九龍站的國泰航空公司櫃位以一本中國護照辦理前往泰國曼谷的登機手續，其後航空公司職員發給申請人一張前往曼谷的登機證。申請人並於同日在香港國際機場辦理前往泰國的離境檢查手續。申請人其後手持一張登機證及一本中國護照在前往意大利羅馬的航機登機閘口排隊登機，申請人被航空公司的保安人員要求出示其登機證及護照，之後被發現其登機證與護照的名字不同。此時入境處人員在附近截查第三被告人。第三被告人後來向入境處人員承認他是應一名叫「小高」的人士的指示，將申請人及另外一名乘客帶往羅馬及在抵達羅馬的機場後交予申請人一本護照以辦理入境手續。該本護照的持有人名字與申請人持有往羅馬的登機證上的名字相同。第三被告人指有關的登機證和護照都是「小高」交給他的，而他亦會與申請人一同乘搭該班航機前往羅馬。" } }, { "doc_id": 90, "seg_id": 11, "translation": { "en": "Ground of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 90, "seg_id": 12, "translation": { "en": "The ground of appeal relied on by the applicant is that the sentences for both offences are manifestly excessive.", "zh-HK": "申請人所持的上訴理由是兩項控罪的判刑都是明顯過重。" } }, { "doc_id": 90, "seg_id": 13, "translation": { "en": "Authorities", "zh-HK": "案例" } }, { "doc_id": 90, "seg_id": 14, "translation": { "en": "The Court of First Instance adopted 12 months’ imprisonment as the starting point in two magistracy appeal cases concerning section 42(1)(a) of the Immigration Ordinance, namely HKSAR v. Wang Wu (HCMA 801/2003) and HKSAR v. Zhang Chang Yong (張長勇) (HCMA 1256/2003). In our view, however, these sentences are manifestly inadequate.", "zh-HK": "雖然高等法院原訟法庭在兩宗涉及《入境條例》第 42(1)(a) 條源自裁判法庭的上訴案件（即HKSAR v. Wang Wu (HCMA 801/2003) 及 HKSAR v. Zhang Chang Yong (HCMA 1256/2003) (張長勇)）中採用十二個月監禁為量刑基準，但本庭認為有關的判刑是明顯過輕。" } }, { "doc_id": 90, "seg_id": 15, "translation": { "en": "We must point out that a higher starting point is applicable to this kind of cases, which clearly involve sophisticated planning and arrangement. Making use of Hong Kong’s position as a hub of communications, offenders assist illegal immigrants in entering a third country. By means of a fraudulent scheme, offenders help illegal immigrants enter the restricted area of the Hong Kong International Airport, where they then use false boarding passes to board flights bound for a third country. Upon arrival in that country, they will use false identity documents for gaining entry into that country. These activities will obviously tarnish Hong Kong’s international reputation. Furthermore, as a result of those activities, immigration authorities of foreign countries will become wary of visitors from Hong Kong even when they are holding lawful travel documents, which means that visitors from Hong Kong will have to suffer a certain degree of inconvenience when they enter those countries. Severe, deterrent sentences must therefore be imposed for those offences.", "zh-HK": "本庭必須指出一個較嚴峻的量刑基準是適用於這類案件的。明顯地，這類案件是經過周詳的計劃及安排，不法份子利用國際運輸樞紐的香港協助非法移民進入第三國家，他們以偷龍轉鳳的手法，協助非法移民在進入香港國際機場禁區後以虛假的登機證登上前往第三國家的航機及在到達該國後利用假證件入境。有關的行為明顯會影響香港的國際聲譽及使這些國家對手持合法旅遊證件入境的香港旅客存有戒心，因而使香港旅客在進入該等國家的境內時遭受某程度的不便，因此法庭必須判予較嚴峻的刑期以儆效尤。" } }, { "doc_id": 90, "seg_id": 16, "translation": { "en": "This position is reinforced by the sentence imposed by the Court of Appeal in a case with facts similar to those of the present case. In HKSAR v. Cheng Kwong Chung (D2), Wong Lai Ming (D4) and Lu Qiufeng (D7) (CACC 536/2001), D7 faced three charges, two of which being the same as the two charges in the present case and the remaining one being “possession of a false passport”. The judgment of the Court of Appeal said that D7 pleaded guilty to making a false representation to an immigration officer, but according to the Reasons for Conviction and Sentence prepared by the trial judge, D7 in fact pleaded not guilty to all three charges. Miss Yam, Senior Public Prosecutor for the respondent, has also agreed that according to the record of the Department of Justice, D7 denied all three charges at trial and did not plead guilty to any one of them. She was sentenced to 32 months’ imprisonment for each of the two conspiracy offences and 27 months’ imprisonment for the offence of making a false representation, and the three sentences were ordered to run concurrently. The Court of Appeal affirmed the sentences and dismissed D7’s application for leave to appeal against sentence.", "zh-HK": "從上訴法庭在一宗與本案案情雷同的案件中作出的刑期亦可反映出有關的立場。在 HKSAR v. Cheng Kwong Chung (D2), Wong Lai Ming (D4) and Lu Qiufeng (D7) (CACC 536/2001)一案中，D7 被控三項控罪，其中兩項與本案的兩項控罪相同，另一項控罪是「管有虛假護照」罪。雖然上訴法庭的判決書指 D7 就向入境處人員作出虛假申述的控罪認罪。其實，根據原審法官定罪及刑期的判案理由書，D7是否認三項控罪的。代表答辯人的任可高級檢控官亦同意根據律政司的檔案記錄，D7 在審訊時是否認三項控罪的，她並沒有就其中一項控罪認罪。原審法官就兩項串謀罪判處她三十二個月監禁及就另一項虛假陳述罪判處她二十七個月監禁，並命令三項刑期同期執行。上訴法庭對原審法官作出的判決表示同意，並拒絕 D7 就刑期的上訴許可申請。" } }, { "doc_id": 90, "seg_id": 17, "translation": { "en": "Furthermore, in HKSAR v. Hung Kong Nam（洪江南）and Cheng Yung（鄭勇）(CACC 346/2006), the two defendants faced the following three charges:", "zh-HK": "另外，在 HKSAR v. Hung Kong Nam (洪江南) and Cheng Yung (鄭勇) (CACC 346/2006)一案，兩名被告人被控三項控罪，即" } }, { "doc_id": 90, "seg_id": 18, "translation": { "en": "Aiding and abetting the making of a false representation to an immigration officer, contrary to section 42(1)(a) of the Immigration Ordinance;", "zh-HK": "協助、教唆他人向入境處人員作出虛假陳述，違反《入境條例》第 42(1)(a) 條；" } }, { "doc_id": 90, "seg_id": 19, "translation": { "en": "Conspiracy to defraud an airline company; and", "zh-HK": "串謀欺騙航空公司；及" } }, { "doc_id": 90, "seg_id": 20, "translation": { "en": "Aiding and abetting the possession of a forged identity card and false credit cards.", "zh-HK": "協助、教唆管有假身份證及假信用咭。" } }, { "doc_id": 90, "seg_id": 21, "translation": { "en": "Both defendants were sentenced to 12 months’ imprisonment for “aiding and abetting the contravention of the Immigration Ordinance” and were sentenced to 3 years’ imprisonment and 3½ years’ imprisonment respectively for “conspiracy to defraud an airline company”. All sentences were ordered to run concurrently. The Court of Appeal dismissed the appeal against sentence, observing that the sentences imposed by the trial judge for the offences concerning the Immigration Ordinance were manifestly inadequate and should have been brought closer to those imposed for “conspiracy to defraud an airline company”.", "zh-HK": "原審法官就「協助、教唆違反《入境條例》」罪作出的刑期是十二個月監禁；而就「串謀欺騙航空公司」罪，判處兩名被告人分別就每項控罪入獄三年及三年半，所有控罪的刑期同期執行。上訴法庭駁回針對刑期的上訴，並指出原審法官就違反《入境條例》的控罪所作出的刑期明顯是過輕，它應該相約於「串謀欺騙航空公司」的刑期。" } }, { "doc_id": 90, "seg_id": 22, "translation": { "en": "The facts of the aforesaid case and those of the present case are by and large the same: Mainlanders came to Hong Kong and obtained air tickets to go to countries which they could lawfully enter, but, having gone through the departure formalities in Hong Kong, they were given boarding passes or travel documents bearing names of other persons to go to countries which they had no right to enter. In Cheng Kwong Chung, D7 was an illegal immigrant; in Hung Kong Nam and Cheng Yung, the two defendants were people who assisted illegal immigrants to enter a third country.", "zh-HK": "上述案件的案情亦與本案大同小異。該案都是涉及內地人士來港後，手持機票前往一個他們獲准合法進入的國家，但當他們在香港完成辦理出境手續後卻轉持另外一名人士的登機證或者旅遊證件前往一個他們沒資格入境的第三國家。在Cheng Kwong Chung 一案, D7 是一名非法移民，在洪江南及鄭勇一案，兩名被告人是協助非法移民進入第三國家的人士。" } }, { "doc_id": 90, "seg_id": 23, "translation": { "en": "The role of the applicant", "zh-HK": "申請人的角色" } }, { "doc_id": 90, "seg_id": 24, "translation": { "en": "Mr. Chong, Counsel for the applicant, submits that the applicant merely participated in, as opposed to plotted or carried out, this illegal operation, and that it was the 3rd defendant who plotted or carried out the operation.", "zh-HK": "代表申請人的莊天巡大律師的陳詞是申請人並非該次非法行動的策劃人或執行人，他只是參與該次非法行動。有關的策劃人或執行人是第三被告人。" } }, { "doc_id": 90, "seg_id": 25, "translation": { "en": "Miss Yam for the respondent argues that although the applicant and the 3rd defendant played different roles, there were equally culpable for making a false representation to an immigration officer. The applicant was one of those who initiated this scheme. Had he not desired to go overseas to work, no one would have made the corresponding arrangements; the 3rd defendant was merely one of those who carried out this scheme, which needed the applicant’s concerted action in order to achieve its purpose. Miss Yam contends that as far as deceiving the immigration officer was concerned, the applicant was in fact the principal offender and the 3rd defendant was an accomplice, and therefore the two of them should in principle be equally culpable and receive the same sentence.", "zh-HK": "代表答辯人的任可律師指出，雖然申請人和第三被告人在本案所扮演的角色不同，但他們就向入境處人員作出虛假陳述的罪責是相同的。申請人是整個計劃的始作俑者之一，若不是他想到海外工作，便不會有人作出相應的安排；第三被告人只不過是該計劃的其中一名執行人，要實行該計劃一定要得到申請人的配合。任律師指申請人其實是欺騙入境處人員的主犯，而第三被告是一名從犯，因此原則上，兩人的罪責和刑期應該是相同的。" } }, { "doc_id": 90, "seg_id": 26, "translation": { "en": "In our judgment, although the applicant took part in this illegal immigration scheme, there should be some difference between the culpability of those who plotted or carried out the scheme and that of the illegal immigrants who took part in the scheme. What usually happens is that someone plots a scheme, and then solicits those who want to be smuggled to a foreign country to join the scheme, and then assists them to illegally enter that country. As the illegal immigrants only do what the mastermind instructs them to do, we consider that the mastermind or those who carry out the scheme should be more culpable. Such a difference has in fact been demonstrated in the aforesaid two Court of Appeal cases. In Cheng Kwong Chung, D7 was an illegal immigrant, whereas D2 and D4 were those who carried out the illegal immigration scheme and assisted D7 therein. The trial judge adopted 3 years’ imprisonment as the starting point for these two defendants’ conspiracy charges. In Hung Kong Nam, the defendants were both responsible for carrying out the illegal operation, and the trial judge adopted 3 years’ imprisonment and 3½ years’ imprisonment as the respective starting points for their conspiracy charges.", "zh-HK": "本庭認為雖然申請人亦是非法移民計劃的參與者，但從罪責的角度來看，該計劃的策劃人或執行人與參與計劃的非法移民的罪責是應該有分別的。一般來說，首先是由一名策劃人作出一個計劃，然後向有意非法移民的人士招手，繼而協助他們非法移民。由於這些非法移民只是依照策劃人的指示行事，因此本庭認為策劃人或執行人是應該負上較重的刑責的。兩者的區別其實已經從上述兩宗上訴法庭的案例反映了出來。在Cheng Kwong Chung 一案，D7是一名非法移民，而D2、D4 是協助 D7 進行該項非法移民行動的執行人，原審法官就兩人的串謀罪採用三年監禁為量刑基準。洪江南 一案的兩名被告人都是非法行動的執行人，原審法官就他們的串謀罪所採用的量刑基準分別為三年及三年半監禁。" } }, { "doc_id": 90, "seg_id": 27, "translation": { "en": "The applicant in the present case was merely an illegal immigrant. In light of the principle that sentences arising from similar factual matrices should be as consistent as possible, the sentence imposed in the present case should in our view be the same as those passed in Cheng Kwong Chung. The Judge adopted the same starting point for the 3rd defendant and the applicant. At trial, the Judge’s attention had never been drawn to Cheng Kwong Chung. We believe that had the Judge been made aware of that case, he would have directed his mind to the disparities in sentencing.", "zh-HK": "本案的申請人只是一名非法移民。在案情相約，刑期應該盡量一致的原則下，本庭認為本案的刑期亦應該與Cheng Kwong Chung 一案相同。游法官對本案的第三被告人及申請人採用相同的量刑基準。雙方的律師在原審時都沒有將Cheng Kwong Chung 的案例呈交游法官參考，本庭相信若游法官得悉有關案例，他會就刑期的區別作出處理。" } }, { "doc_id": 90, "seg_id": 28, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 90, "seg_id": 29, "translation": { "en": "For the above reasons, the applicant’s application for leave to appeal against sentence is allowed and is treated as the appeal proper. We adopt 27 months as the starting point for the first charge and reduce it by 16% discount to 23 months on account of the guilty plea. The starting point for the second charge is 32 months and this is reduced by 16% to 27 months on account of the guilty plea. The two terms shall run concurrently and the total sentence is 27 months’ imprisonment.", "zh-HK": "基於上述原因，本庭批准申請人針對刑期的上訴許可申請，視申請為正式上訴。本庭就第一項控罪以二十七個月為量刑基準，在扣去百分之十六的認罪扣減後，刑期為二十三個月監禁；就第二項控罪以三十二個月監禁作為量刑基準，在扣去百分之十六的認罪扣減後，刑期為二十七個月監禁，兩項刑期同期執行，總刑期為二十七個月監禁。" } }, { "doc_id": 90, "seg_id": 30, "translation": { "en": "Miss Sally Yam, Senior Public Prosecutor, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官任可代表。" } }, { "doc_id": 90, "seg_id": 31, "translation": { "en": "Mr. Chong Tin-chun, instructed by Tang, Wong & Chow, for the Applicant.", "zh-HK": "申請人：由鄧王周律師行轉聘莊天巡大律師代表。" } }, { "doc_id": 91, "seg_id": 1, "translation": { "en": "Hon Kwan JA (giving judgment of the Court):", "zh-HK": "上訴法庭法官關淑馨頒發上訴法庭判案書：" } }, { "doc_id": 91, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 91, "seg_id": 3, "translation": { "en": "The three Applicants were the three Defendants in District Court Criminal Case No. 1159 of 2008 (hereinafter known as “D1, D2 and D3” respectively). They were jointly charged with one count of “Conspiracy to defraud”, contrary to Common Law and punishable under s.159C(6) of the Crimes Ordinance (Cap. 200). The particulars of offence are as follows:", "zh-HK": "三名申請人是區域法院刑事案件2008年第1159號的三名被告人（以下分別簡稱 “D1、D2及D3”）。他們共同被控一項「串謀詐騙」罪，違反普通法並可根據《刑事罪行條例》（第200章）第159C(6)條懲處。控罪詳情如下：" } }, { "doc_id": 91, "seg_id": 4, "translation": { "en": "“D1, D2 and D3, between the 1st day of March 1999 and the 31st day of May 2000, in Hong Kong, conspired with each other and with TANG Chun Lam and other persons unknown to defraud FOO Siew-choo Anna Aileen (“PW1” in short) of the sum of $500,000.00 United States currency by dishonestly and falsely representing to PW1 that:", "zh-HK": "「D1、D2及D3，於1999年3月1日至2000年5月31日期間在香港，互相串謀與鄧春霖及其他身份不詳的人串謀，詐騙胡秀珠Anna Aileen（簡稱 “PW1”）US$500,000.00，即不誠實及虛假地向PW1表示：" } }, { "doc_id": 91, "seg_id": 5, "translation": { "en": "the said $500,000.00 United States currency was to be invested in a high yield scheme to be managed by the top 25 European banks;", "zh-HK": "US$500,000.00將會投資於一個由最頂尖的25間歐洲銀行管理的高收益計劃；" } }, { "doc_id": 91, "seg_id": 6, "translation": { "en": "PW1 would receive $1.5 million United States currency to $2 million United States currency per month for ten months;", "zh-HK": "PW1會每月收取US$1,500,000至US$2,000,000，為期10個月；" } }, { "doc_id": 91, "seg_id": 7, "translation": { "en": "PW1’s “investment of $500,000.00 United States currency” was guaranteed by UBS AG Jersey Branch (“UBS” in short) in that she could withdraw $500,000.00 United States currency from the said UBS after the 3rd day of May 2000 under a Bank Guarantee No. BG9905CI351. ”", "zh-HK": "PW1的「US$500,000.00投資」獲瑞士銀行澤西島分行（簡稱 “UBS”）作出擔保，即她可於2000年5月3日後，以編號BG9905CI351的銀行擔保書從UBS提取US$500,000.00。」" } }, { "doc_id": 91, "seg_id": 8, "translation": { "en": "In late May 2000, PW1 made a report to the police for assistance. Between 2000 and 2003, the three defendants and other persons were investigated by the police. But it was not until October 2008 that the three defendants were arrested. In November of the same year, they were charged with the above offence. The case was heard by Her Honour Judge Mary Yuen in the District Court on 18 May 2009. All three defendants applied for a permanent stay of the criminal proceedings on the ground of gross delay on the part of the prosecution in bringing them to trial, thereby causing their failure to call certain witnesses to give evidence. Having heard the evidence and submissions, Judge Yuen refused the application. The trial then commenced and lasted for 10 days. On 9 June, the three defendants were convicted as charged. On 24 June, D1 and D3 were each sentenced to immediate imprisonment for 12 months, whereas D2 was sentenced to immediate imprisonment for 18 months.", "zh-HK": "PW1在2000年5月底報警求助，警方在2000至2003年向三名被告人及其他人士調查，但要到2008年10月才逮捕三名被告人，同年11月向他們提出上述控罪，案件在2009年5月18日在區域法院法官源麗華席前聆訊。三名被告人都以控方檢控出現嚴重延誤，導致他們不能傳召某些證人作供為理由，申請永久擱置刑事程序。源法官聽取證據和陳詞後，拒絕了申請。審訊於是展開，維時10天。6月9日，裁定三人罪名成立。6月24日，判處D1及D3即時監禁12個月，D2即時監禁18個月。" } }, { "doc_id": 91, "seg_id": 9, "translation": { "en": "The three defendants were aggrieved by the convictions and applied for leave to appeal against convictions in July 2009. On 6 August 2009, the Department of Justice was granted leave by the Chief Judge of the High Court to apply for review of sentences imposed on the three defendants on 10 August. The application for review of sentences and the application for leave to appeal against convictions are now dealt with together by this Court.", "zh-HK": "三人不服定罪，於2009年7月就定罪提出上訴許可的申請。2009年8月6日，律政司獲高等法院首席法官給予許可，在8月10日申請覆核三人的判刑。覆核判刑的申請，和上訴定罪許可的申請，由本庭一併處理。" } }, { "doc_id": 91, "seg_id": 10, "translation": { "en": "Prosecution Case", "zh-HK": "控方案情" } }, { "doc_id": 91, "seg_id": 11, "translation": { "en": "At the time of the offence, D1 was an experienced insurance agent, D2 a practicing solicitor in Hong Kong and D3 a self-employed financial consultant. D1 had been acquainted with PW1 for no less than 10 years.", "zh-HK": "案發時D1是資深的保險從業員，D2是香港執業律師，D3是自僱的財務顧問。D1與PW1相交不下於10年。" } }, { "doc_id": 91, "seg_id": 12, "translation": { "en": "As early as in 1996, PW1 had heard D1 say that he was also engaged in some high return investment programmes for other people, in addition to his insurance work. In 1998, D1 mentioned to PW1 again about a high return investment programme, the minimum investment sum of which being US$1,000,000 and the investor could receive a return as high as US$1,500,000 to US$2,000,000 per month in the following 10 months.", "zh-HK": "早於1996年，PW1已聽D1說過他除了做保險外，也有替人做些高回報的投資項目。1998年間，D1再向PW1提起高回報投資，投資金額最低為US$1,000,000，在投資的10個月內投資者每月可獲取高達US$1,500,000至US$2,000,000的回報。" } }, { "doc_id": 91, "seg_id": 13, "translation": { "en": "PW1 was due to retire in mid-1999. In around March or April of the year, she asked D1 to calculate the sum of her provident fund for her to decide whether she should receive provident fund or pension. Meanwhile, D1 introduced those high return investment programmes to her again. This time D1 told PW1 that only an investment sum of US$500,000 was required for her to participate in the investment programme, that she could still receive a return as high as US$1,500,000 to US$2,000,000 per month in the following 10 months, and that the capital of the investment programme would be used in backward countries for development. D1 further stated that a big businessperson surnamed Tang wished to participate in the investment programme by contributing a total sum of US$30,000,000. D1 said PW1 could participate in the high return investment programme together with the big businessperson surnamed Tang.", "zh-HK": "1999年，PW1在年中退休。在3、4月間，她要求D1計算她的公積金金額，以決定拿取公積金還是退休金。與此同時，D1再向她介紹這些高回報的投資項目。這次D1說她只需用US$500,000投資金額，即可參與該投資項目，在投資的10個月內她每月仍可獲取一樣高達US$1,500,000至US$2,000,000的回報。投資項目的資金是拿去落後國家做開發。D1更指當時有一名鄧姓大戶想以US$30,000,000總資金參與該投資項目，PW1大可與該鄧姓大戶一同參與該高回報的投資項目。" } }, { "doc_id": 91, "seg_id": 14, "translation": { "en": "After persuasion by D1, PW1 became interested in this investment programme. In recommending the said investment to PW1, D1 said it would be looked after by he himself, along with a solicitor and an investment expert, and UBS would issue to PW1 a guarantee, pursuant to which PW1 could get her investment sum back in full one year later if the investment was unsuccessful. D1 elaborated that PW1 had to share half of her profit with D1 and the participating solicitor and investment expert. According to D1’s explanation, irrespective of whether PW1’s investment was successful or not, so far as she was concerned, it would be a sure-fire situation where there would not be any risk of loss.", "zh-HK": "在D1游說下，PW1對這投資項目產生興趣。D1向她推介說該投資有他、一名律師，和一名投資專家代為操心，PW1並可獲UBS發出的擔保書，若投資不成功，可於一年後根據擔保書取回全數投資金額。D1闡述，PW1需要把她的一半利潤分與D1及參與該投資項目的律師及投資顧問。根據D1的解說，PW1的投資成功與否，對她來說，都只會贏、不會有虧蝕的風險。" } }, { "doc_id": 91, "seg_id": 15, "translation": { "en": "PW1 thus felt at ease to participate in the investment recommended by D1, and agreed to contribute US$500,000 for her participation in the investment programme. Later, through the introduction of D1, PW1 came to know D2 and D3 who were the participating solicitor and investment expert as referred to by D1. From then onwards, D1, D2 and D3 played their respective roles of a friend, a solicitor and an investment expert together on a number of different occasions.", "zh-HK": "PW1因此放心參與D1推介的投資，答應拿出US$500,000參與該投資項目。後來，D1介紹了D2及D3給PW1認識，他們就是D1所說的參與律師和投資專家。D1，D2及D3隨後共同多次在不同的場合上合演著朋友、律師、及投資專家的角色。" } }, { "doc_id": 91, "seg_id": 16, "translation": { "en": "On 20 April 1999, D1 introduced D2 to PW1, saying D2 was a solicitor of Cheung, Chan and Chung Solicitors and Notaries and would act as a middleman and notary public in this investment programme. D1 further said that D2 was at the same time representing the big businessperson and PW1, that D2 would “watch over” the investment programme on behalf of both parties in order to ensure the investment would go on smoothly, and that D2 would communicate on behalf of both parties should there be any problem. In the presence of D2, D1 also pointed out to PW1 that D2 had dealt with similar investment programmes for other people before, and that D2 was very familiar with this kind of investment. D1 reassured PW1 by telling her not to worry and pointed out again that the capital of US$30,000,000 would be invested in some backward countries for development, and that after PW1 had injected the capital, if the investment was successful, she could receive a return of US$1,500,000 to US$2,000,000 per month and half of her profit would be shared amongst D1, D2 and an investment expert.", "zh-HK": "1999年4月20日，D1介紹D2給PW1認識，說D2為張、陳、鍾律師樓的律師，在這投資項目中擔任中間人和公證人。D1並說D2同時代表大戶與PW1，D2會代表兩方「看著」那投資項目，確保投資順利，如有問題D2會代兩方溝通。D1在D2面前又向PW1指出，D2過往也會替其他人處理同類的投資項目，D2對此等投資甚為熟識。D1叮囑PW1不用擔心，再次指出US$30,000,000的資金將會投放於開發一些落後國家，她投入資金後，如投資成功，可每月獲取US$1,500,000至US$2,000,000的回報。她的一半利潤將由D1、D2及一名投資專家分享。" } }, { "doc_id": 91, "seg_id": 17, "translation": { "en": "D2 did not raise any objection to what had been said by D1. D2 also said he was well acquainted with the big businessperson who was running a huge business in the mainland, D2 would also “watch over” the progress of the said investment programme, and PW1, having with her the cash guarantee issued by bank, could feel at ease as she could get her principal back if the investment was not successful.", "zh-HK": "D2對D1的言詞無異議，D2還說他熟識該大戶，該大戶在內地有龐大的生意，D2也會「看著」該項投資的進展，且PW1有銀行現金擔保書在手，如投資不成功她大可取回本金，她可以放心。" } }, { "doc_id": 91, "seg_id": 18, "translation": { "en": "On 27 April 1999, as appointed, PW1 went to the solicitors firm where D2 was working, and signed a set of Joint Venture Contract. During this meeting D1 introduced D3 to her, saying that D3 was an investment expert. D3 told PW1 that all along he had been engaged in this kind of high return investment. D1 once again mentioned that the total capital of the programme was US$30,000,000 and the big businessperson was called Tang Chun Lam; PW1 was only required to contribute capital in the sum of US$500,000 whereas D1, D2 and D3 did not have to contribute any capital and the three of them would only assist in handling the investment programme; when the investment was successful, PW1 could get half of the profit as her share, while the remaining half of the profit would be shared amongst D1, D2 and D3. Then the four of them signed a set of Joint Venture Contract (Prosecution Exhibit P-1).", "zh-HK": "1999年4月27日，PW1依約往D2工作的律師事務所，簽署合作契約。這次會面D1介紹D3給她認識，說D3是投資專家，D3對PW1說自己一向是做這些高回報投資。D1再提及項目的總資金是US$30,000,000，大戶叫鄧春霖，PW1只須提供US$500,000的資金，而D1、D2及D3不用拿出資金，他們三人只協助處理投資項目的工作。投資成功時，PW1可分得一半利潤，餘下的一半利潤由D1、D2及D3三人分享。隨後四人簽署合作協議書（控方證物P-1項）。" } }, { "doc_id": 91, "seg_id": 19, "translation": { "en": "It was confirmed in the body of the contract that: PW1 shall contribute capital in the sum of US$500,000; D1, D2 and D3, as the “facilitator”, through an associated party, could arrange for the issuance of bank instruments (including a bank guarantee for a term of one year) and for the application for joining a high return investment programme to be managed by the top 25 European banks; D1, D2, D3 and PW1 agreed to set up a joint venture company in which PW1, D1 and D3 shall be its directors, PW1 shall hold half of its shares, and the facilitator shall hold the other half; the facilitator’s associated party and the above mentioned joint venture company would form another joint venture company in which the associated party shall hold five-sixths of its interests while the latter shall hold one-sixth, and profit from investment shall be shared according to such proportion. Attached to the contract was a copy of bank guarantee in the sum of US$30,000,000 as a specimen for reference, issued by UBS Jersey Branch in February 1999. The same format and content would be adopted in the US$500,000 guarantee to be issued to PW1.", "zh-HK": "協議書內文確定PW1提供US$500,000的資金。D1、D2、D3作為撮成者 (facilitator) ，通過有聯繫的一方 (associated party)，有能力安排銀行函件的簽發（包括為期一年的銀行擔保書），和申請加入一個高回報投資項目，由歐洲頂尖的25間銀行管理。D1、D2、D3及PW1同意成立一間合作公司，由PW1、Dl及D3出任董事，PW1佔一半股份，撮成者佔另一半。撮成者的聯繫一方，與前述的合作公司，將組成另一合作公司，聯繫一方佔5/6權益，後者佔1/6，以此比例分享投資的利潤。協議書附有一張US$30,000,000的銀行擔保書副本作為參考樣本，由UBS澤西島分行在1999年2月發出，發給PW1的US$500,000擔保書將會採用相同的格式及內容。" } }, { "doc_id": 91, "seg_id": 20, "translation": { "en": "Pursuant to the contract, PW1 set aside HK$100,000 from the US$500,000 investment sum as earnest money, and paid HK$20,000 for the acquisition of two companies, namely Artwin Investment Limited （雅慧投資有限公司）(“Artwin”) and Lansome Investment Limited （利森投資有限公司）(“Lansome”) at the request of D2. Artwin was the first joint venture company referred to in the contract, in which PW1 held three-fourths of its shares and D2 held one-fourth. Lansome was the joint venture company between Artwin and Tang Chun Lam, in which D2, Tang Chun Lam and PW1 were its directors, D2 also acted as its secretary, and Tang Chun Lam and Artwin respectively held five-sixths and one-sixth of its shares.", "zh-HK": "PW1依照協議書，在US$500,000的投資金額內撥出HK$100,000作誠意金，又應D2要求，支付HK$20,000購買兩間公司，分別為Artwin Investment Limited（“Artwin”；雅慧投資有限公司） 與Lansome Investment Limited（“Lansome”；利森投資有限公司）。Artwin是協議書所說的第一間合作公司，PW1佔3/4股份，D2佔1/4股份。Lansome是Artwin和鄧春霖的合作公司，由D2、鄧春霖和PW1出任董事， D2兼任秘書，鄧春霖及Artwin各佔5/6及1/6股份。" } }, { "doc_id": 91, "seg_id": 21, "translation": { "en": "On 28 April 1999, PW1 went to D2’s solicitors firm and signed another set of Joint Venture Contract (Prosecution Exhibit P-5) whereby Tang Chun Lam was appointed as the programme agent. At the time of execution, Tang Chun Lam was not present, and PW1 signed in the capacity of Artwin’s director. The body of the contract stated that: the investor shall pay capital in the sum of US$500,000; the programme agent would arrange for the issuance of a bank letter with a face value of US$30,000,000; the facilitator (namely, D1, D2 and D3) and the programme agent could arrange for the issuance of bank instruments (including bank guarantee) and for the application for joining a high return investment programme to be managed by the top 25 European banks.", "zh-HK": "1999年4月28日，PW1到D2的律師事務所簽署另一份合作協議書，委任鄧春霖為項目代理人 (programme agent)（控方證物P-5項）。簽署時鄧春霖不在場，PW1以Artwin的董事身份簽署。內文指投資者須支付US$500,000資金，項目代理人會安排面值US$30,000,000的銀行書函，撮成者（即D1、D2及D3）與項目代理人有能力安排銀行書函（包括銀行擔保書），並能申請加入由歐洲首25間頂尖銀行管理的高回報投資項目。" } }, { "doc_id": 91, "seg_id": 22, "translation": { "en": "On the following day, PW1, accompanied by D1, D2 and D3, opened a bank account with Hang Seng Bank for Lansome, signatories whereof being PW1 and Tang Chun Lam. Tang Chun Lam was not present at that time.", "zh-HK": "翌日，PW1在D1、D2與D3陪同下，到恆生銀行為Lansome開設銀行賬戶，由PW1及鄧春霖作賬戶簽署人，鄧春霖當時不在場。" } }, { "doc_id": 91, "seg_id": 23, "translation": { "en": "On 3 May 1999, as prompted by D1 and D2, PW1 deposited HK$907,240 into Lansome’s account with Hang Seng Bank. On the same day, she transferred US$370,000 from her Citibank account in New York to Lansome’s account with Hang Seng Bank.", "zh-HK": "1999年5月3日，在D1及D2的催促下，PW1把HK$907,240存入Lansome的恆生銀行賬戶。同日，她亦從她在紐約Citibank的賬戶，轉數US$370,000入Lansome在恆生銀行的賬戶。" } }, { "doc_id": 91, "seg_id": 24, "translation": { "en": "At the request of D1 and D2, PW1 signed some blank withdrawal slips in respect of Lansome’s account.", "zh-HK": "在D1及D2的要求下，PW1簽署了空白的Lansome賬戶提款單。" } }, { "doc_id": 91, "seg_id": 25, "translation": { "en": "D1 had told PW1 that bank guarantee was a matter to be dealt with between banks, and that the guarantee should be sent by post to a bank designated by PW1. Therefore, on 4 May 1999 PW1 wrote to D2, asking D2 to inform the guarantee-issuing bank on her behalf to send the guarantee to Citibank, the bank designated by her. On 7 May, PW1 wrote to Citibank, asking them to receive the bank guarantee on her behalf. Nevertheless, Citibank has never received any bank guarantee wherein PW1 is named as the beneficiary.", "zh-HK": "D1曾對PW1說銀行擔保書是銀行與銀行之間的交往，擔保書應寄給PW1的指定銀行，因此PW1在1999年5月4日去信D2，要求D2代為通知簽發擔保書的銀行，把擔保書寄到她的指定銀行Citibank。5月7日，PW1去信Citibank，要求代為接收銀行擔保書。但Citibank一直未有收到以PW1作為受益人的銀行擔保書。" } }, { "doc_id": 91, "seg_id": 26, "translation": { "en": "Later, D1 told PW1 that D2 had mentioned to him that the bank guarantee had been sent by post to Tang Chun Lam, and that Tang Chun Lam had received a letter from the bank in acknowledgement of receipt of capital in the sum of US$500,000 from PW1.", "zh-HK": "後來，D1對PW1說D2曾向他提及銀行擔保書已寄給鄧春霖，鄧春霖並收到銀行確認收到PW1 US$500,000資金的信件。" } }, { "doc_id": 91, "seg_id": 27, "translation": { "en": "On 8 May 1999, Tang Chun Lam withdrew HK$900,000 in cash from Lansome’s account with Hang Seng Bank and remitted, in the name of Lansome, US$338,000 from the same account to a bank account opened in the name of Auan Li in Singapore. On 5 June 1999, Tang Chun Lam further withdrew in cash HK$7,600 and HK$240,124 (which was converted from US$31,000) from Lansome’s account with Hang Seng Bank. By then, the US$500,000 deposited by PW1 had almost been wholly taken away, with a remaining balance of US$275.", "zh-HK": "鄧春霖於1999年5月8日在Lansome的恆生銀行賬戶取去現金HK$900,000，並以Lansome名義從該賬戶電匯US$338,000到新加坡以Auan Li名義開設的銀行賬戶。1999年6月5日，鄧春霖再於Lansome的恆生銀行賬戶提取現金HK$7,600及以US$31,000折算的HK$240,124。這時候，PW1存入的US$500,000，已差不多全數被提走，只餘下US$275。" } }, { "doc_id": 91, "seg_id": 28, "translation": { "en": "Between May and June 1999, on one occasion while D1, his wife, D2, D3 and PW1 were having meal together in a restaurant, D2 passed an envelope of China Sources Co. Ltd. across the dining table to PW1. The envelope contained a Letter of Guarantee with number BG9905CI351 in the amount of US$500,000 dated 3 May 1999 and issued by UBS to PW1, as well as a Bloomberg Security Display Print-out of the same day (Prosecution Exhibit P-11). The documents were circulated to every person at the table. D1 said he had called UBS for checking and found no problem, and that UBS was also one of the 25 biggest European banks. D2 said Tang Chun Lam was a big businessperson and reassured PW1 by telling her not to worry. D3 said he had checked via the Internet and that the bank guarantee bore signatures of two colours and thus it should be genuine document. D1, D2 and D3 told PW1 not to show the bank guarantee to other people or to photocopy it.", "zh-HK": "1999年5至6月期間，D1、其妻子、D2、D3與PW1在酒家會面進餐。D2在餐桌上交出一個China Sources Co. Ltd. 的信封給PW1，載有註寫為UBS在1999年5月3日，簽發給PW1的US$500,000擔保函，編號BG9905CI351，及Bloomberg同日的Security Display Print-out（控方證物P-11項）。桌上各人傳閱該些文件。D1說他曾致電UBS查過沒有問題，UBS亦是歐洲25間最大銀行之一。D2說鄧春霖是大戶，叮囑PW1不用擔心。D3說在網上查過，又謂該銀行保函上有兩種顏色的簽署，應該是真確文件。D1，D2和D3叮囑PW1，不要讓他人看該銀行擔保書，及影印這文件。" } }, { "doc_id": 91, "seg_id": 29, "translation": { "en": "In June 1999, D1 told PW1 that his wife had a safety box and it could be used to safe-keep the bank guarantee on PW1’s behalf. PW1 then handed the bank guarantee to D1 for safe-keeping. In June 1999, PW1 returned to Canada for settlement.", "zh-HK": "1999年6月期間，D1向PW1說他妻子有保險箱，可代PW1保管該銀行保函。PW1於是將銀行擔保書交予D1保管。她在1999年6月回到加拿大定居。" } }, { "doc_id": 91, "seg_id": 30, "translation": { "en": "Since PW1 deposited US$500,000 into Lansome’s bank account, she has never received what all the Defendants had claimed to her, namely, a monthly profit in the sum of US$1,500,000 to US$2,000,000 for a period of 10 months.", "zh-HK": "PW1自從把US$500,000存入Lansome的銀行賬戶後，沒有收到各被告人聲稱為期10個月的每月US$1,500,000至US$2,000,000的利潤。" } }, { "doc_id": 91, "seg_id": 31, "translation": { "en": "In November 1999, D1 called PW1, telling her that there were changes to the investment programme. He said he had already signed a new set of Joint Venture Contract (Prosecution Exhibit P-21) on behalf of Artwin, and that PW1 could continue to participate in the said programme with the original conditions but D2 asked PW1 to further contribute a sum of HK$200,000. PW1 told D1 that she did not have any extra money. Afterwards, D2 told PW1 that the investment programme could still continue to proceed without PW1 making further contribution. PW1 then agreed.", "zh-HK": "1999年11月，D1致電PW1，聲稱投資有更改，他說已代表Artwin簽署新的合作協議書（控方證物P-21項），PW1可以用原本的條件繼續參與該項目，但D2要求PW1多付HK$200,000。PW1告訴D1，她已經沒有額外資金。後來D2向PW1說，不需要再加錢，投資項目都可以繼續進行，PW1便同意了。" } }, { "doc_id": 91, "seg_id": 32, "translation": { "en": "On 30 March 2000, PW1 returned to Hong Kong for holiday and had a gathering with D1 and D2, during which D2 told PW1 that the chance of success in the investment was high. With her mind at ease, PW1 returned to Canada in April 2000. In early May 2000, PW1’s bank guarantee was due to mature. She asked D1 to get her investment sum of US$500,000 back on her behalf.", "zh-HK": "2000年3月30日，PW1在香港度假，與D1及D2聚會，言談間D2向她說投資成功機會高。PW1安心在2000年4月返回加拿大。2000年5月初，PW1的銀行擔保書到期，PW1要求D1代她取回US$500,000投資。" } }, { "doc_id": 91, "seg_id": 33, "translation": { "en": "On 17 and 18 May of the same year, PW1 learnt from D1 that they had lost contact with Tang Chun Lam, which resulted in their enquiries with the bank as to the authenticity of the bank guarantee. On 25 May 2000, UBS Jersey Branch replied to PW1’s solicitor that the bank had never issued such guarantee in the sum of US$500,000 and that the document was a forgery. On 28 May, PW1 returned to Hong Kong. After having consulted her lawyers, she made a report to the police on 31 May.", "zh-HK": "同年5月17至18日，PW1從D1口中獲知他們與鄧春霖失去聯絡，因而引發他們向銀行求證擔保書的事情。2000年5月25日澤西島的UBS回覆PW1的律師，告知銀行從未有發出該US$500,000擔保書，該文件是偽造的。PW1在5月28日回港，與自己的律師商討後，她在5月31日報警。" } }, { "doc_id": 91, "seg_id": 34, "translation": { "en": "In October 2008, the police arrested D1, D2 and D3. On 30 October 2008, under caution, D2 participated in a video-recorded interview conducted by the police.", "zh-HK": "警方在2008年10月拘捕D1、D2及D3，D2在2008年10月30日在警誡下，向警方提供了錄影會談。" } }, { "doc_id": 91, "seg_id": 35, "translation": { "en": "The prosecution asserted that when D1, D2 and D3 made the three false representations in respect of the investment programme which allegedly would involve no risk of loss but would generate lucrative profits as specified in the particulars of offence, they did not really believe those representations to be true, and that those false representations were dishonest acts of persuasion which in the end led to tremendous financial loss suffered by PW1. In paragraph 47 of her reasons for verdict, the trial judge has pointed out the crux of the case:", "zh-HK": "控方指稱，當D1、D2及D3對PW1作出控罪中三項有關那無虧蝕風險、但利潤極為豐厚的投資項目的虛假陳述時，他們根本不相信那些陳述是真的，而那些虛假陳述，是屬於不誠實的游說行為，最終導致PW1蒙受重大的經濟損失。原審法官在裁決理由書第47段，點出案件的關鍵：" } }, { "doc_id": 91, "seg_id": 36, "translation": { "en": "“The crux of the case lies on whether the three defendants did anticipate any risk of financial loss to be suffered by PW1? Was there any consensus amongst the three of them to persuade PW1 to participate in the investment programme, and were they fully aware that their acts of persuasion done to PW1 were dishonest?”", "zh-HK": "「全案癥結在乎3名被告是否有預見[PW1] 經濟受損的風險? 他們3人之間有否達到共識要游說[PW1] 參與該投資項目，而他們是否確知他們對[PW1] 的游說行為是不誠實的?」" } }, { "doc_id": 91, "seg_id": 37, "translation": { "en": "Whether a defendant is proved to be dishonest must depend on two criteria. Firstly, was his act dishonest according to the ordinary standard of reasonable and honest people? This is an objective standard. Secondly, was the defendant aware that his act was dishonest according to the said standard? This is a subjective standard. Both criteria must be met before the element of dishonesty can be proved.", "zh-HK": "證實被告人是否不誠實，須取決兩個條件。第一，按明理而誠實人士的一般標準，他的行為是否不誠實，這是客觀標準。第二，被告人是否明知根據該標準，其所作所為屬不誠實，這是主觀標準。這兩個條件都要符合，不誠實的元素才得以證實。" } }, { "doc_id": 91, "seg_id": 38, "translation": { "en": "Defence Case", "zh-HK": "辯方案情" } }, { "doc_id": 91, "seg_id": 39, "translation": { "en": "The three Defendants did not dispute that PW1’s guarantee in the sum of US$500,000 and the Bloomberg Security Display Print-out were false, nor did they dispute that they had signed the contracts mentioned above. They did not deny that the three representations as specified in the particulars of offence did not materialize. The particulars of offence, however, also stated that the conspirators, in addition to the three defendants, also included Tang Chun Lam and “other persons unknown”. The question was whether the defendant knowingly joined the conspiracy to dishonestly defraud PW1. The key areas of defence rested on the respective knowledge, belief and mentality of each defendant in relation to the investment programme, and on whether they believed or might have believed the three representations as specified in the particulars of offence to be true.", "zh-HK": "三名被告人並無爭議PW1的US$500,000擔保書，和Bloomberg的Security Display Print-out都是虛假的，亦無爭議他們簽署了之前所述的協議書。他們不否認，控罪中的三項陳述，都沒有實現。但控罪詳情也有表明，串謀人士除了三名被告人，還有鄧春霖和「其他身份不詳的人」，問題是被告人是否知情地加入串謀，不誠實地向PW1詐騙。各被告人對投資項目的認知、信念和心態，他們是否相信或可能相信控罪中三項陳述是真確的，便是抗辯的重點。" } }, { "doc_id": 91, "seg_id": 40, "translation": { "en": "PW1 was the only witness who gave evidence at the trial. D2’s cautioned statement, which was a mixed statement, was produced in court as evidence without objection. All three defendants elected not to give evidence or call any witness.", "zh-HK": "PW1是審訊中唯一的作供證人。D2的警誡口供在沒有反對下，以混合式證據呈堂。三名被告人都選擇不作供，他們也沒有傳召證人。" } }, { "doc_id": 91, "seg_id": 41, "translation": { "en": "Verdict of the Trial Judge", "zh-HK": "原審的裁決" } }, { "doc_id": 91, "seg_id": 42, "translation": { "en": "As none of the defendants gave evidence in court, the trial judge had to draw inferences on the mentality and intent of the three defendants at the material time, based on all the relevant evidence including circumstantial evidence, in deciding whether they were “innocent pawns being made use of by swindlers, or members of the fraudulent plot”. Having analyzed all the details of the circumstantial evidence, the judge took the view that it was against common sense with regard to ordinary investment that the investment programme could generate a high return while involving no risk of loss at all. As regards the suggestion that in the absence of sufficient collateral, the bank would undertake an extra risk which was equivalent to 9 times the value of the collateral, the judge was of the view that even an adult who had some knowledge on investment would not find such suggestion possible. The only reasonable inference that could be drawn from the fact that the three defendants did not seek direct authentication of the bank guarantee from UBS through proper channels prior to May 2000 was that they knew fully well that the document was false. In her reasons for verdict, Judge Yuen has separately analyzed and dealt with the mentality and intent of each defendant, and finally came to conclusion that on the standard of proof of beyond reasonable doubt, it was impossible for the three defendants to believe that the three representations made by them to PW1 might materialize or might be true. The judge found that the representations made by them to PW1 were dishonest acts of persuasion and that they were guilty of conspiracy to defraud.", "zh-HK": "由於各被告人沒有在庭上自辯，原審法官便要綜合案中所有有關的證據，包括環境證供，去推斷三名被告人當時的心態和意圖，以裁斷他們是「被騙徒利用的無知棋子，或是騙徒圈套中的成員」。分析過種種環境證供的細節，法官認為該投資回報高，又全無虧蝕風險的投資項目，有違一般投資的常理。至於銀行在沒有足夠抵押下，承擔額外九倍抵押品的風險，法官認為略有投資認識的成年人，也不會接受這指稱有可能發生。而三名被告人在2000年5月之前，不循正途向UBS直接求證銀行擔保書，唯一合理推斷是他們都清楚明白文件是虛假的。在裁決理由書，源法官對各被告人的心態和意圖，作出個別分析處理。最後得出的結論是，以無合理疑點的基準，三名被告人是沒有可能相信，他們對PW1的三項陳述，是有可能發生或有可能是真確的。法官於是裁定，他們對PW1的陳述是不誠實的游說行為，串謀詐騙罪罪名成立。" } }, { "doc_id": 91, "seg_id": 43, "translation": { "en": "Defendants’ Grounds of Appeal", "zh-HK": "被告人的上訴理由" } }, { "doc_id": 91, "seg_id": 44, "translation": { "en": "Both D1 and D3 were represented by Mr. Joseph Tse, SC. In D1’s Amended Perfected Grounds of Appeal, the following grounds were put forward in support of his argument that the conviction against him was unsafe and unsatisfactory:", "zh-HK": "D1和D3，都是由謝華淵資深大律師代表。D1的經修訂完備上訴理由，提出了以下幾個理由去支持論點，他的定罪是不安全及不穩妥的：" } }, { "doc_id": 91, "seg_id": 45, "translation": { "en": "PW1, without the leave of the court, read her witness statement(s) every night during the period while she was giving evidence;", "zh-HK": "PW1沒有法庭批准下，作供期間每晚閱讀她的證人供詞；" } }, { "doc_id": 91, "seg_id": 46, "translation": { "en": "The trial judge misunderstood PW1’s evidence in that she thought PW1 was saying that the investment scheme recommended to her by the defendants was “risk-free”.", "zh-HK": "原審法官錯誤理解PW1的證詞，以為她說眾被告人向她推銷的，是一個「無風險」的投資計劃；" } }, { "doc_id": 91, "seg_id": 47, "translation": { "en": "The trial judge had taken a preconceived view by holding a firm belief that D1 was a member of the conspiracy, before analyzing the facts relevant to him;", "zh-HK": "原審法官採用了一個先入為主的觀念，已認定D1是串謀一份子，才分析與他有關的案情；" } }, { "doc_id": 91, "seg_id": 48, "translation": { "en": "The trial judge on her own initiative departed from the prosecution case and found, in the absence of any evidential basis, that the investment scheme did not exist at all;", "zh-HK": "原審法官擅自偏離控方案情，在沒有證據基礎下，裁定投資計劃本身不存在；" } }, { "doc_id": 91, "seg_id": 49, "translation": { "en": "As a result of the trial judge’s misunderstanding of PW1’s evidence, she embarked upon speculation and found on her own initiative that the scheme did not exist at all, so that she erroneously found that D1 must have become suspicious of the scheme;", "zh-HK": "基於原審法官對PW1的證詞的誤解，而進行猜測及擅自裁定投資計劃本身不存在，導致錯誤裁定D1必對計劃生疑；" } }, { "doc_id": 91, "seg_id": 50, "translation": { "en": "On a number of occasions the trial judge embarked upon speculation against D2 by quoting from D2’s cautioned statement. She reversed the burden of proof, actually had adopted the standard of proof for civil cases and had overlooked the material evidence in the case, such as exculpatory evidence which was favourable to D1.", "zh-HK": "原審法官屢次引用D2的警誡供詞，來針對D1之猜測。她把舉證責任顛倒，實際採納了民事舉證標準，和忽略了案中重要的證據，例如是對D1有利開脫的證據。" } }, { "doc_id": 91, "seg_id": 51, "translation": { "en": "D3’s grounds of appeal are similar to D1’s and need not be repeated here.", "zh-HK": "D3的上訴理由，與D1類似，毋需覆述。" } }, { "doc_id": 91, "seg_id": 52, "translation": { "en": "D2 was represented by two counsel, Mr. Kevin Chan and Ms. Fiona Nam, who submitted the Perfected Grounds of Appeal containing the following points:", "zh-HK": "D2是由陳世傑及藍凱欣兩位大律師代表，提交的完備上訴理由，有以下幾點：" } }, { "doc_id": 91, "seg_id": 53, "translation": { "en": "The trial judge erroneously refused the three defendants’ application for a permanent stay of these criminal proceedings. She erroneously found that the evidence that Tony Yue, the witness that the defendant wished to call, could give would only be hearsay evidence which would not and could not be of any assistance so far as the issues at trial were concerned. She also failed to take into account any possible remedial measures or remind herself of the relevant directions in order to avoid, counteract or reduce the risk of unfairness;", "zh-HK": "原審法官錯誤拒絕三名被告人的申請，永久擱置這刑事程序。她錯誤裁定被告人欲傳召的證人Tony Yue，可作的證供只屬傳聞證供，不會和不能對審訊的爭論點有所幫助。她也沒有考慮可能的補救方法，或作出一些提醒自己的指示，去避免、抵消或減少不公平的風險；" } }, { "doc_id": 91, "seg_id": 54, "translation": { "en": "The trial judge should not have negated the existence and truthfulness of the investment scheme as claimed by D2 to PW1;", "zh-HK": "原審法官不應否定，D2對PW1聲稱投資計劃的存在和真實性；" } }, { "doc_id": 91, "seg_id": 55, "translation": { "en": "The trial judge had given inappropriate weight to the account in D2’s statement which was a mixed statement;", "zh-HK": "原審法官給予D2的混合式口供內的陳述，不恰當的比重；" } }, { "doc_id": 91, "seg_id": 56, "translation": { "en": "The trial judge erroneously and inappropriately drew unfavourable inferences against all the defendants.", "zh-HK": "原審法官錯誤地和不恰當地，對各被告人作出不利的推論。" } }, { "doc_id": 91, "seg_id": 57, "translation": { "en": "In the opinion of this Court, amongst all the grounds of appeal, the crucial ones are D2’s in respect of the application for stay of criminal proceedings.", "zh-HK": "本庭認為眾多的上訴理由，具關鍵性的是D2提出有關擱置刑事程序的理由。" } }, { "doc_id": 91, "seg_id": 58, "translation": { "en": "Application for Stay of Criminal Proceedings", "zh-HK": "擱置刑事程序的申請" } }, { "doc_id": 91, "seg_id": 59, "translation": { "en": "At the commencement of the trial, all three defendants applied for a permanent stay of these criminal proceedings mainly on the ground that due to the gross delay in prosecution, they were unable to call witnesses whose evidence would be favourable to their defence. D1 and D3 put forward two witnesses, namely Rodney Tang and Tony Yue, whereas D2 stated that Tony Yue was his key witness. This Court only needs to discuss the evidence that Tony Yue could give. It is not necessary for us to deal with the evidence that Rodney Tang could give, as it is not relied upon by the grounds of appeal.", "zh-HK": "審訊開始時，三名被告人都申請永久擱置這刑事程序，主要的原因，是由於控方檢控的嚴重延誤，他們未能傳召對於他們抗辯有利的證人。D1和D3提出的證人有兩位，是Rodney Tang 和Tony Yue ，D2就提出Tony Yue 是他的重要證人。本庭只需集中討論Tony Yue可作的證供，毋需處理涉及Rodney Tang可作的證供，因為上訴理由，沒有依賴他可作的證供。" } }, { "doc_id": 91, "seg_id": 60, "translation": { "en": "In 2000, the police had taken witness statements from PW1 and the three defendants but had all along been unable to locate Tang Chun Lam. The name “Tony Yue” was provided by D2 to the police in 2000. In December 2003, the police arrested Tony Yue who then gave a statement under caution. In January 2004, pursuant to the advice of the Department of Justice, no prosecution was brought against him and he was released unconditionally. It was not until 2008 that decision was made to prosecute and arrest the three defendants upon review of the advice by the Department of Justice. Each defendant had been having the status of a witness prior to his arrest in October 2008.", "zh-HK": "在2000年間，警方已錄取了PW1及三名被告人的證人供詞，但一直未能找到鄧春霖。Tony Yue 的名字，是D2在2000年向警方提供。2003年12月，警方拘捕Tony Yue，在警誡下向他錄取了一份口供。2004年1月，根據律政司意見，不對他起訴，獲無條件釋放。三名被告人是後來2008年律政司覆核意見，才決定起訴和拘捕的。各被告人在2008年10月被捕前，一直是證人身份。" } }, { "doc_id": 91, "seg_id": 61, "translation": { "en": "It was not until January 2009 when D2’s lawyers received the “list of unused material” that they discovered that Tony Yue had once been arrested in December 2003 and released subsequently. D2’s lawyers then asked the police to provide them with a copy of Tony Yue’s video-recorded interview. They came to know about what had been said by him during the interview only after viewing the video-tape in March 2009. Since 2001, the contact between D2 and Tony Yue had become less frequent. In March 2009, D2’s lawyers advised D2 to contact Tony Yue immediately. But D2 no longer had contact information of Tony Yue. He had tried to contact Tony Yue through the people who were acquainted with Tony Yue, by fax and by telephone, but to no avail.", "zh-HK": "2009年1月，D2的律師收到「未用於檢控的資料列表」，才發現Tony Yue在2003年12月曾被捕和後來獲釋，於是向警方索取Tony Yue的錄影會面記錄，要在2009年3月看到影帶才知道他的口供內容。D2自2001年後，跟Tony Yue的聯繫逐漸疏遠。他的律師在2009年3月建議他馬上聯絡Tony Yue，D2已沒有他的聯絡資料，他曾嘗試找Tony Yue，但透過聯絡認識Tony Yue的人、傳真和電話，都沒有成果。" } }, { "doc_id": 91, "seg_id": 62, "translation": { "en": "On the third day into the trial, the prosecution provided to D2’s lawyers a movement record of Tony Yue, which showed that between December 2003 and October 2008, he entered Hong Kong for 143 times. But in 2008, there was an obvious drop in the number of times that he entered Hong Kong. After all the defendants had been arrested in October 2008, Tony Yue entered Hong Kong only once in April and once in May of 2009. On the third day into the trial, the prosecution also provided to D2’s lawyers a telephone number which might belong to Tony Yue. But after attempts had been made, they were told that the person who answered the phone claimed that he did not know Tony Yue.", "zh-HK": "到審訊的第三天，控方向D2的律師提供Tony Yue的出入境記錄，顯示他在2003年12月至2008年10月，有143次入境，但在2008年的入境次數，就明顯減少，而在各被告人2008年10月被捕後，Tony Yue就只在2009年4月和5月分別入境一次。控方也在審訊的第三天，提供了一個可能是Tony Yue的電話號碼給D2的律師，但嘗試後得知接聽電話的人聲稱不認識他。" } }, { "doc_id": 91, "seg_id": 63, "translation": { "en": "D2 claimed that but for the delay in prosecution, there could have been a feasible chance of contacting Tony Yue successfully in 2003 to ask him to testify for his defence.", "zh-HK": "D2聲稱，若非控方在檢控有所延誤，在2003年他是有切實的機會聯絡到Tony Yue，為他辯護作證。" } }, { "doc_id": 91, "seg_id": 64, "translation": { "en": "Tony Yue’s Role as Alleged by D2", "zh-HK": "據D2所稱Tony Yue的角色" } }, { "doc_id": 91, "seg_id": 65, "translation": { "en": "In D2’s cautioned statement, he claimed that Tony Yue and Tang Chun Lam were the masterminds behind the entire investment scheme, and that Tony Yue himself had knowledge about the investment scheme. According to D2’s record of interview, Tony Yue was his friend in America, whom D2 came to know through the introduction of a client from his law firm. Tony Yue told D2 that he had done some finance-related work for the US Government before. In 1999, Tony Yue introduced Tang Chun Lam to D2. To the knowledge of D2, Tang Chun Lam was engaged in trading and financial work and had a company known as China Sources. D2 had also been to the company’s office situated in Sheung Wan.", "zh-HK": "D2在他的警誡口供宣稱，Tony Yue和鄧春霖是整個投資計劃背後的始作俑者，而Tony Yue本身對該投資計劃是有認知的。根據D2在會面記錄所述，Tony Yue是他的一位在美國的朋友，由他在律師行的客人介紹認識。Tony Yue告訴D2，他有幫助美國政府做些牽涉到金融的工作。Tony Yue在1999年，介紹了鄧春霖給D2認識。據D2所知，鄧春霖是做貿易和金融工作的，有一間公司，名稱是China Sources，D2亦有到過公司在上環的寫字樓。" } }, { "doc_id": 91, "seg_id": 66, "translation": { "en": "In 1999, Tony Yue and Tang Chun Lam had separately shown D2 some letters of credit and guarantees issued by banks. Tony Yue had shown and told D2 that he had obtained a guarantee in the sum of US$30,000,000 in which Tang Chun Lam’s company was named as the beneficiary, and that they were having some investment programmes in progress. Tony Yue also asked D2 if he had got any investors interested in participating in it so that they could co-operate together in making money. D2 chose to ask his friend D3 as, to the understanding of D2, D3 was engaged in trading and financial business in the mainland and had a wider connection. Afterwards, D3 introduced D1 to D2.", "zh-HK": "1999年間，Tony Yue和鄧春霖都分別給了一些銀行信用證和保證書給D2看，Tony Yue展示和告訴D2他已經有一張US$30,000,000元的保證書，受益人是鄧春霖的公司，而他們正在進行一些投資項目，並詢問D2有沒有投資者有興趣參與，可合作賺錢。D2選擇了找朋友D3，因為根據D2理解D3在大陸有做貿易和金融生意，圈子比較大，而D3後來就介紹了D1給D2認識。" } }, { "doc_id": 91, "seg_id": 67, "translation": { "en": "In D2’s record of interview, he also mentioned that both Tony Yue and Tang Chun Lam had explained to him about the operation of the investment scheme. After a sum of principal was injected by an investor, a major bank in Europe would issue a bank guarantee with a face value 10 times higher than the principal sum to guarantee the principal sum for a period of one year. Meanwhile, they would make further investment by using this bank guarantee. D2 chose to participate in this investment programme because he believed in the representations made by Tony Yue and Tang Chun Lam and that they already had a guarantee in the sum of US$30,000,000.", "zh-HK": "D2在會面記錄亦有提到，Tony Yue和鄧春霖都有向他解釋該投資計劃的運作。投資者投入本金後，歐洲的大銀行會開一張面值大十倍，為期一年的銀行保證書去擔保這個本金，而他們會在利用這張銀行保證書去再做一個投資。D2是因為相信Tony Yue和鄧春霖的陳述，和他們已經有一張US$30,000,000元的保證書，而選擇去參與這項投資。" } }, { "doc_id": 91, "seg_id": 68, "translation": { "en": "Tony Yue’s Video-Recorded Interview", "zh-HK": "Tony Yue的錄影會面" } }, { "doc_id": 91, "seg_id": 69, "translation": { "en": "The account given by D2 above is substantiated by Tony Yue’s video-recorded interview. Tony Yue said there had been a cooperative relationship between him and Tang Chun Lam, and he had knowledge about the operation of the investment programme. Tony Yue admitted that through him D2 came to know about the investment programme, and that as a result of what he had said, D2 came to have contact with Tang Chun Lam.", "zh-HK": "D2上述的聲稱，在Tony Yue的錄影會面得到印證。Tony Yue說他和鄧春霖有合作關係，而他是知道投資計劃的運作，他承認是因為他D2才知道該投資計劃，是基於他的說話，才令D2接觸到鄧春霖。" } }, { "doc_id": 91, "seg_id": 70, "translation": { "en": "Tony Yue, an American citizen, was engaged in investment business mainly in finance, and had his own financial company in the United States. He said he arranged an investment plan with a higher-than-usual return for his clients by making use of his connection with banks, and the investment locations were mainly in Europe. Through his friend, Mr Chiu, he came to know Tang Chun Lam. In 1999 Tony Yue came to know through Mr Chiu that Tang Chun Lam and a person known as Lee Ching Ming (transliteration) [李政明] wanted to invest a sum of money on investment programmes. Tang Chun Lam told Tony Yue that Lee Ching Ming could have a bank guarantee in the sum of US$30,000,000 issued to Tony Yue, asking Tony Yue to help in making investment. The content of the investment scheme was that an investor had to inject money, which then would be used for drawing a “credit line” for the purpose of bills trading. The investor’s money would be put into their bank(s) in the name of the investor. As regards how the credit line would be arranged, it was a matter for the company in the United States to deal with, and it would not be revealed to him. His role was a middleman. If it was successful, he would have 1% commission.", "zh-HK": "Tony Yue 是美國公民，從事金融為主的投資業務，在美國有財務公司。他說他是利用與銀行的關係，為客戶安排一個高於一般回報的投資，投資地點大部份在歐洲。他是透過一個朋友趙先生認識鄧春霖，他在1999年從趙先生得知，鄧春霖和一個叫李政明的人，有一筆資金想做投資項目。鄧春霖告訴他，李政明可以給他開一張US$30,000,000的銀行保證書，叫Tony Yue幫手做投資。投資計劃內容是投資者將資金投入，用以拉一條credit line做票據買賣。投資者的資金，將會以投資者名下放在他們的銀行。至於如何安排到credit line則是美國那邊公司的安排，不會告訴他。他的角色是中間人，事成的話會有1%佣金。" } }, { "doc_id": 91, "seg_id": 71, "translation": { "en": "Tony Yue had given some documents pertaining to investment process and profit to Tang Chun Lam. When he introduced the investment programme to Tang Chun Lam, he mentioned that (a) programme manager of the programme would make transactions with the invested capital. Tony Yue was not responsible for making arrangement of the investment, instead he would ask his friend in America, who worked as a broker, to find a programme manager. This broker friend would keep the information of the programme manager confidential and would not reveal it to Tony Yue.", "zh-HK": "Tony Yue 有給予鄧春霖一些關於投資程序和利潤的文件。他向鄧春霖介紹投資項目時，提到項目的programme manager 會用投入的資金做買賣。Tony Yue不是負責安排投資，而是透過他一個美國做經紀的朋友去找programme manager，經紀朋友會把programme manager的資料保密，不會告訴他。" } }, { "doc_id": 91, "seg_id": 72, "translation": { "en": "Tony Yue said D2 came to know about the said investment scheme because D2 had been acquainted with him before and had known that he could deal with the said investment scheme. Tony Yue told Tang Chun Lam and D2 clearly that he could make it provided that there was a verified bank guarantee. From the beginning to the end, Tony Yue had never told Tang Chun Lam the details of the scheme because he had to wait for the programme manager to inform him in black and white.", "zh-HK": "Tony Yue說D2 知道有關該投資計劃的事，是因為D2以前認識他，並且知道他可以做到該投資計劃。他跟鄧春霖和D2說得很清楚，只要有一張經查證的銀行保證書，他就可以做到。從頭到尾，他都未有將投資項目的詳細計劃告訴鄧春霖，因為他要等programme manager白紙黑字告訴他。" } }, { "doc_id": 91, "seg_id": 73, "translation": { "en": "Tony Yue did not think the investment scheme was problematic. He knew that there were occasions in the United States where programme managers were summonsed by court and examined on matters relating to the profit they made, and that this type of investment scheme did exist because he had a friend who had earned profit from it and another friend who had earned commission from it. Although he had never successfully introduced this type of investment scheme, he had personally made such referral on one or two occasions. He started to be engaged in this type of investment scheme since 1995. He said that after an investor had produced a copy of bank guarantee, once it had been verified, the investor could then apply for making investment. He knew that there were really people who managed to make investment in this way, and he had personally seen successful cases. He did not know the content of the investment scheme. Based on his experience, he believed that this type of investment scheme did exist.", "zh-HK": "Tony Yue不認為投資計劃有問題，他知道美國有programme manager被法院傳召去詢問關於他們賺取的利潤，而這種投資計劃是真有其事的，因為他有一個朋友正從中獲利，也有另一個朋友從中賺取佣金。他雖然沒有成功介紹這種投資計劃，但他曾經手介紹一兩宗，他是從1995年開始做這種投資計劃的。他說投資者出示銀行保證書副本，經查證後就可以申請投資，他知道真的有人做到投資，亦親眼見到有人成功。他並不知道投資計劃的內容，他憑經驗相信這種投資計劃確實存在。" } }, { "doc_id": 91, "seg_id": 74, "translation": { "en": "Further, on 20 November 1999, Tony Yue also signed an Investment Contract [Prosecution Exhibit P-20] with Tang Chun Lam, Artwin and D2, in which it was stipulated that Tony Yue was responsible for implementing and arranging the application for participating in the said investment scheme. On 30 November 1999, D1 on behalf of Artwin signed the new Joint Venture Contract [Prosecution Exhibit P-21], because the arrangement in the original contract had been revised by the Investment Contract dated 20 November.", "zh-HK": "另外，Tony Yue亦在1999年11月20日，與鄧春霖、Artwin和D2等，簽署了一份投資協議書（Investment Contract；控方證物P-20項），當中訂明他會負責執行和安排申請參與該投資計劃。D1在1999年11月30日代表Artwin 簽署新的合作協議書（控方證物P-21項），是因為11月20日的投資協議書，修訂了原有協議的安排。" } }, { "doc_id": 91, "seg_id": 75, "translation": { "en": "During the video-recorded interview of Tony Yue, he had been asked about the subsequent enquiries made with UBS for verifying the bank guarantee. He said it was probably in 1999 but did not say clearly about the exact time. Apparently it took place after the signing of the Investment Contract on 20 November.", "zh-HK": "Tony Yue在錄影會面，有被問及後來向UBS查證銀行保證書的事。他說應該是1999年，但沒有說清楚確實的時間，這似乎是簽署11月20日的投資協議書之後。" } }, { "doc_id": 91, "seg_id": 76, "translation": { "en": "Mr. Chan submitted that as can be seen from the above, Tony Yue’s role was very important in that he not only introduced the investment programme in question to Tang Chun Lam, but also facilitated the cooperation between D2 and Tang Chun Lam. Tony Yue assisted Tang Chun Lam in verifying the bank guarantee and possessed knowledge to a certain extent about the operation of the investment, for instance, about the possibility of using a credit line for the purpose of bills trading. Tony Yue had made a considerable amount of representations to D2, thereby influencing the belief of D2. According to Mr. Chan, the evidence that Tony Yue could give was highly relevant to the question as to whether it was impossible for D2 to believe the three representations as specified in the offence to be true, and it could be said that Tony Yue was an extremely crucial witness for the defence of D2.", "zh-HK": "陳大律師陳述，從上述可見，Tony Yue的角色十分重要，他不但介紹有關投資項目給鄧春霖，亦撮合了D2和鄧春霖的合作。他曾協助鄧春霖查證銀行保證書，亦對投資的運作，有一定的認識，例如可以用credit line做票據買賣。他對D2作了相當的陳述，因而影響了後者的信念。Tony Yue可作的證供，對裁定D2是否不可能相信控罪中三項陳述是真確的，陳大律師說有舉足輕重的影響，Tony Yue可說是對於D2的辯護，是極為關鍵的證人。" } }, { "doc_id": 91, "seg_id": 77, "translation": { "en": "Applicable Law", "zh-HK": "適用的法律" } }, { "doc_id": 91, "seg_id": 78, "translation": { "en": "The court has an inherent power to stay criminal proceedings permanently, although such power is exercised only in highly exceptional circumstances. Where no practical remedial measure is available to remedy a situation whereby a fair trial for the accused is impossible and the continuation of the prosecution would amount to an abuse of process, a permanent stay of criminal proceeding would be granted by the court. This is a more frequently adopted ground. Another ground, which is relatively rare, is that although a fair trial is feasible, the entire prosecution has involved a serious abuse of process which offends the court’s sense of justice and propriety, then a stay of the criminal proceeding might also be granted by the court. For the relevant legal principles, see the judgment of the Court of Final Appeal in HKSAR v. Lee Ming Tee [2001] 1 HKLRD 599.", "zh-HK": "法庭有固有的權力，去永久擱置刑事程序，雖然這權力是在極特殊的情況下才行使。假若沒有可行的補救方法，致使被告人不可能得到公平的審訊，繼續進行檢控，會構成濫用程序，法庭便會批准永久擱置刑事程序，這是比較多引用的理由。另一較為罕見的理由，是審訊即使可以公平地進行，但由於整個檢控涉及嚴重的濫用程序，令致法庭認為這是不公不義的，法庭亦可擱置刑事程序。有關的法律原則，參照終審法院在HKSAR v. Lee Ming Tee的判決 [2001] 1 HKLRD 599。" } }, { "doc_id": 91, "seg_id": 79, "translation": { "en": "The ground adopted by the defendants in the present case is the first one, which is more commonly used. The defendants contended that because they were unable to locate and call Tony Yue to give evidence in court, their defence had been unfairly prejudiced, whereby it was impossible for them to have a fair trial. As regards this argument, the defendants had the burden of proof on the balance of probabilities.", "zh-HK": "本案被告人引用的理由，是第一個較為常見的理由，被告人的爭議，是由於未能尋獲Tony Yue出庭作供，對他們的抗辯造成不公平的損害，因而令他們不可能得到一個公平的審訊。就這爭議，被告人負有舉證責任，舉證標準是以相對可能性衡量。" } }, { "doc_id": 91, "seg_id": 80, "translation": { "en": "On the point of law regarding a missing witness, reference can be made to R v. Lam Tat Chung Paul & Anr. (1994) 6 HKPLR 147. The learned trial judge, His Honour Judge Jackson in the District Court [as he then was], had set out in detail and comprehensively 14 applicable legal principles. In assessing the importance of this witness, it is necessary for the court to consider all evidence relevant to the issue, including any statements made by this witness. Whether or not the defendant can give the evidence which the witness is expected to give is not a factor which the court can take into account, because the defendant has the right to remain silent and the right to elect not to give evidence. In considering whether the defendant can have a fair trial, it is necessary for the court to weigh the public interests of the two sides. Firstly, anyone who has committed a criminal offence must be brought to justice. Secondly, the community expects trials to be fair and to take place within a reasonable time after a defendant has been charged. The evidence that a missing witness is expected to give need not be determinative of the issues of the case, but it must in a material way assist the accused, and therefore, the absence of such evidence would result in unfairness at trial.", "zh-HK": "就著失蹤證人的有關法律觀點，可參看R v. Lam Tat Chung Paul & Anr. (1994) 6 HKPLR 147。主審法官區域法院法官翟克信（當時官階）在第171頁G行至174頁B行，詳盡和全面地列舉了14個適用的法律原則。在衡量這名證人的重要性時，法庭須考慮有關爭議的所有證據，包括這證人的任何證詞。至於被告人可否就這名證人可作供的事情作證，則不入考慮之列，因為被告人有保持緘默的權利，有權選擇不作供。在考慮被告人可否得到公平的審訊，法庭須權衡兩方面的公眾利益，第一是干犯刑事罪行者，必須繩之於法，第二是公眾期望在被告人被起訴的合理時間內，審訊會公平進行。失蹤證人可作的證供，不需要對案件起決定性的作用，但須是實質地對被告人有幫助的，故此缺少這證供會對審訊造成不公。" } }, { "doc_id": 91, "seg_id": 81, "translation": { "en": "When an application for a stay of criminal proceedings is put before the court, it is the duty of the judge to consider whether there are any possible remedial measures to avoid or minimize the risk of unfairness, for example, by adjournments, by rulings on evidence, or by certain directions to the jury. It is only when no practical remedial measures are available, whereby a fair trial has become impossible, that it is necessary for the court to exercise its inherent power to stay the proceedings (Secretary for Justice v. Cheung Chung Chit [2003] 3 HKLRD 447 paragraphs 13, 27, 29 and 30).", "zh-HK": "法官面對擱置刑事程序的申請時，有責任考慮有沒有可能的補救方法，以避免或減少不公平的風險，例如是押後審訊、就證據作出某些裁斷，或對陪審團作出某些指示。如果是沒有可行的補救方法的話，導致公平的審訊不可能，法庭這才需要行使固有的權力，把程序擱置(Secretary for Justice v. Cheung Chung Chit [2003] 3 HKLRD 447 第13、27、29和30段)。" } }, { "doc_id": 91, "seg_id": 82, "translation": { "en": "Prosecution Submissions", "zh-HK": "控方的陳詞" } }, { "doc_id": 91, "seg_id": 83, "translation": { "en": "One of the main reasons relied upon by the trial judge in refusing the application for a stay of the criminal proceedings was that even if Tony Yue were called to give evidence, his evidence would have been hearsay evidence which could not be admissible to prove the subsistence of the investment programme. Ms. Fanny Wong, Senior Assistant Director of Public Prosecutions, for the Respondent, submitted that: Tony Yue himself had never dealt with this type of investment before; according to what he said, he only introduced investors to (a) programme manager and would earn 1% commission if subsequently the investment was successful; as regards the nature and method of the investment, he had no way to find out; none of the investors introduced by him had ever succeeded; therefore the information he could provide would only be hearsay evidence.", "zh-HK": "原審法官拒絕擱置刑事程序的申請，其中一項主要的原因是，即使Tony Yue可以作供，他的證供是屬於傳聞證供，不可以用以證實投資項目的存在。代表答辯人的高級助理刑事檢控專員黃錦卿陳述，Tony Yue本人從沒有做過此類投資，據他所說，他是把投資者介紹給programme manager，事後投資成功他會賺取1%的佣金，至於投資的性質和方法，他無從知曉，他所介紹的投資者，還沒有一個成功例子。故此他可以提供的資料，只屬傳聞證供。" } }, { "doc_id": 91, "seg_id": 84, "translation": { "en": "Ms. Wong also pointed out that there were discrepancies between Tony Yue’s investment scheme and the investment scheme recommended by the defendants to PW1. According to Tony Yue’s investment scheme, a credit line would be secured with the investor’s verified bank guarantee for the purpose of bills trading. The investment scheme recommended by the defendants, on the other hand, was that the capital would be invested in some backward countries for development. Tony Yue also did not mention that there would be a return 30 to 40 times the investment sum, or that a fixed sum equivalent to that level of profit would be distributed to the investor per month. The two types of investment could not be lumped together. Further, Tony Yue had no way to find out the nature and method of the investment scheme, it was unlikely that he could exert any influence to the belief of D2 as to the investment scheme, not to mention that the two schemes were different.", "zh-HK": "黃大律師亦指出，Tony Yue 的投資計劃，與被告人向PW1推介的投資計劃，有不同之處。Tony Yue 的投資計劃，是以投資者經查證的銀行保證書做一條credit line，去做票據買賣，而被告人推介的投資計劃，資金將會投放於開發一些落後國家。Tony Yue也沒有提及，有30至40倍的回報，或以該等利潤每月固定金額分發給投資者。兩種投資，不可混為一談。再者，Tony Yue對他的投資計劃的性質和方法無從知曉，不見得他可以影響到D2對投資計劃的信念，更何況是兩個不同的計劃。" } }, { "doc_id": 91, "seg_id": 85, "translation": { "en": "Decision of this Court", "zh-HK": "本庭的裁決" } }, { "doc_id": 91, "seg_id": 86, "translation": { "en": "It was held by the trial judge that the evidence of Tony Yue would be hearsay evidence. With this we do not agree. Of course, if this evidence was only to be used to prove whether the investment programme existed or not, it would indeed be hearsay evidence. Nonetheless, the trial judge had overlooked that such evidence could also be used to prove the mentality and thinking of Tony Yue with regard to the investment scheme. If this was the purpose of the evidence, then it should not be regarded as hearsay evidence. In this regard, the trial judge was wrong.", "zh-HK": "原審法官認定Tony Yue的證供屬傳聞證供，本庭認為有商榷之處。當然，如果這證供只是用來證實投資項目存在與否，的確算是傳聞證供。但原審法官忽略了這證供也可以用來證明，Tony Yue對投資計劃的心態及思維，若然這是證供的作用，便不算是傳聞證供。原審法官在這方面犯了錯誤。" } }, { "doc_id": 91, "seg_id": 87, "translation": { "en": "Although Tony Yue’s investment scheme was not entirely identical with the one recommended by the defendants to PW1, it cannot be denied that the two schemes are related. This can be clearly seen from the joint venture contracts signed on the two occasions respectively in April and November 1999. They are Prosecution Exhibits P-5, P-20 and P-21.", "zh-HK": "Tony Yue 的投資計劃，與被告人向PW1推介的投資計劃，雖然不盡相同，但不容否定兩者是有關連的。這從1999年4月和11月，兩次簽署的合作協議書，可見一斑，這是控方證物P-5、P-20和P-21。" } }, { "doc_id": 91, "seg_id": 88, "translation": { "en": "If the trial judge had not ruled that the evidence that Tony Yue could give was hearsay evidence, she would not have made the mistake of holding that his evidence did not have any value. Tony Yue had his own personal knowledge about the investment scheme, although he was not responsible for making arrangement for the investment and he just looked for a programme manager through his broker friend. It was through Tony Yue’s facilitation that D2 and other defendants came to know Tang Chun Lam, before they came to have contact with this investment scheme. The defendants claimed that the representations made by Tony Yue to D2, including those in relation to Tang Chun Lam’s bank guarantee in the sum of US$30,000,000., had exerted influence on D2’s and other defendants’ belief as to the investment scheme (and) on whether they believed or might have believed in the three representations as specified in the offence. In the opinion of this Court, this is an important consideration.", "zh-HK": "倘若原審法官不是斷定Tony Yue可作的證供，屬傳聞證供，她便不會錯誤的認定，他的證供沒有任何價值。Tony Yue對該投資計劃，有他個人的認知，雖然他不是負責安排投資，而是透過他的經紀朋友去找programme manager。D2和其他的被告人，是透過他的撮合才認識鄧春霖，然後才接觸到這投資計劃。被告人聲稱，Tony Yue對D2的陳述，包括是鄧春霖US$30,000,000的銀行保證書，影響了D2和其他被告人對這投資計劃的信念，他們是否相信或可能相信控罪所指的三項陳述。本庭認為這是重要的考慮。" } }, { "doc_id": 91, "seg_id": 89, "translation": { "en": "We take the view that Tony Yue is a crucial witness in the present case. If he had given evidence in court, the trial judge could have had more direct evidence to make a finding on the mentality and acts of each defendant, and it would not have been necessary for the trial judge to draw inferences based on the facts and circumstantial evidence of the case. The failure of the Defendants to call him to give evidence has unfairly prejudiced them, thereby making it impossible for them to have a fair trial.", "zh-HK": "本庭認為Tony Yue是本案關鍵的證人，倘若他出庭作供，原審法官便會有更直接的證據，就各被告人的心態和行為裁決，毋需只是從案情和環境證供作推論。被告人不能傳召他作證，是對他們不公平的損害，令他們不可能得到公平的審訊。" } }, { "doc_id": 91, "seg_id": 90, "translation": { "en": "Another error of the trial judge was that she did not consider or fully consider what possible remedial measures could have been taken to avoid or minimize the risk of unfairness. Mr. Chan pointed out that when the application was being heard by the trial judge, there was the mention about issuing a subpoena to Tony Yue and putting his name into the Stop List of the Immigration Department, but the feasibility of these approaches was not further explored. The judge also did not consider other measures which could assist the defendants to locate Tony Yue, such as by adjourning the trial, by issuing a letter of request, or by suggesting to the police to give an undertaking not to arrest Tony Yue in connection with this case in order to increase the chance of locating him and the chance that he would be willing to give evidence in court.", "zh-HK": "原審法官另一犯錯，是沒有考慮或沒有充份考慮，有甚麼可能的補救方法，去避免或減少不公平的風險。陳大律師指出，法官在聆聽申請時，曾經提出過發傳票予Tony Yue，和把他的名字放在入境處的Stop List，但之後就沒有探討這些方法的可能性。法官也沒有考慮其他可以協助被告人尋找Tony Yue的方法，例如押後審訊、發出請求書 (letter of request) ，和提議警方承諾不就本案控罪拘捕Tony Yue，以增加他被找到和願意出庭作證的機會。" } }, { "doc_id": 91, "seg_id": 91, "translation": { "en": "In giving verdict of the case, the trial judge also failed to remind herself of certain directions such as those relating to the extent to which the defence of each defendant might have been handicapped and how the issues she had to decide had been affected due to the failure to locate and call Tony Yue to give evidence in court, in order to counteract any prejudice which the defendants might otherwise suffer. On the contrary, it was emphasized by the trial judge from time to time that it was impossible for the investment scheme to actually exist, by saying, for example: “reasonable people would certainly be doubtful of the legality of such operation”; “this type of investment is indeed against common sense with regard to ordinary investment”; “it is contrary to common sense with regard to investment known to ordinary and reasonable people”; “as regards the allegation that it was completely risk-free, it is not a normal business operation that any reasonable person would find acceptable”; “the allegation that the investment would bring a return of profit 30 to 40 times without any investment risk is against the general concept on investment”. All these remarks demonstrate that the trial judge had in effect refused the evidence that Tony Yue could give in relation to the investment scheme, and that she did not think the representations made by Tony Yue to D2 would exert any influence on D2’s and other defendants’ belief with regard to this investment scheme. Therefore, the conviction against each defendant was unsafe and unsatisfactory. See R v. Holgate (No. 1) [1996] 3 HKC 315, line E to line G in page 321 and line C to line E in page 323.", "zh-HK": "原審法官在判案時，也沒有作出一些提醒自己的指示，包括無法尋獲Tony Yue出庭作證，對各被告人抗辯的影響，和對需要裁決的爭論點的影響，以抵消可能對被告人造成的不公。相反地，原審法官不時強調該投資計劃不可能真實存在，例如「常人對此運作的合法性定有質疑」，「此類投資確實有違一般投資的常理」，「有反一般常人認知的投資常理」，「全無投資風險的指稱非常人能接受的正常商業運作」，「對於30至40倍的利益回報又無投資風險的投資指稱確是有違一般的投資概念」，這都顯示法官實際上否定了Tony Yue對投資計劃可作的證供，不認為Tony Yue對D2的陳述，會影響了D2和其他被告人對這投資計劃的信念。因此，各被告人的定罪，是不安全和不穩妥的。參看R v. Holgate (No. 1) [1996] 3 HKC 315第321頁E行至G行、第323頁C至E行。" } }, { "doc_id": 91, "seg_id": 92, "translation": { "en": "It is noted by this Court that in the reasons for verdict, when the trial judge mentioned about Tony Yue, she addressed him as the “person who participated in the case” (paragraphs 62, 71 and 75). Although the trial judge did not use the word “co-conspirator” which appeared in paragraph 95 to describe him, it can be seen from the matters described in paragraphs 71, 75 and 77 that she was treating Tony Yue and Tang Chun Lam, who was specified as a co-conspirator in the particulars of offence, as members of the same group. In the opinion of this Court, it was seriously wrong for the trial judge to treat Tony Yue as a co-conspirator, which was not the case relied upon by the prosecution, without informing the prosecution and the defence of such view beforehand.", "zh-HK": "本庭留意到在裁決理由書，原審法官提及Tony Yue之時，稱他為「與案者」(第62、71、75段) 。法官雖然沒有用上第95段「串謀者」的字眼去形容他，但從第71、75及77段所描述的事可見，她是把Tony Yue和鄧春霖列為一夥，而鄧春霖正是控罪詳情指明的串謀者。法官把Tony Yue 視為串謀者，這不是控方依賴的案情，她事前沒有把這意念告訴控辯雙方，本庭認為是嚴重的錯誤。" } }, { "doc_id": 91, "seg_id": 93, "translation": { "en": "By reason of the above errors, the trial judge did not fully consider the importance of the evidence which Tony Yue could give as far as the defendants were concerned, and erroneously exercised her discretion to refuse the application for a stay of the criminal proceedings. This fundamental error cannot be rectified by this Court substituting its discretion for hers. The only appropriate approach is to set aside the convictions, with the issue of a re-trial being reserved for consideration (see R v. Takeshi Machiya [1990] 1 HKC 73, line I in page 82 to line B in page 83).", "zh-HK": "由於上述種種錯誤，原審法官未有充份考慮Tony Yue可作證供對被告人的重要性，錯誤行使酌情權拒絕擱置刑事程序的申請。這個根本的錯誤，不能夠以本庭代為行使酌情權補救，恰當的做法唯有是撤銷定罪，容後考慮應否下令重審（參看R v. Takeshi Machiya [1990] 1 HKC 73第82頁I行至83頁B行）。" } }, { "doc_id": 91, "seg_id": 94, "translation": { "en": "We have heard submissions on the other grounds of appeal advanced by the three defendants. But in view of the above conclusion, it is not necessary to deal with those grounds, nor is it necessary to deal with the application by the Department of Justice to review the sentences.", "zh-HK": "本庭有聽取三名被告人其他的上訴理由，但由於上述的結論，毋需處理這些上訴理由，也毋需處理律政司要求覆核刑期的申請。" } }, { "doc_id": 91, "seg_id": 95, "translation": { "en": "Leave to appeal against convictions is granted to the three defendants. We treat the hearing of the application for leave as the hearing of the appeal. The appeal is allowed and convictions against the three defendants are quashed. At the hearing we have already given directions as to how to deal with the intended applications by both parties. The defendants intended to ask for costs of the appeal and of the trial at first instance. The Department of Justice intended to ask for a re-trial. If there is any application for a re-trial, this Court will decide, after having considered the grounds of application, whether it is necessary to hear the application in open court. As regards costs, there will be open court hearing if the matter cannot be resolved by way of written submissions.", "zh-HK": "本庭准許三名被告人就定罪上訴，把許可申請視為上訴，裁定上訴得直，撤銷三人的定罪。本庭在聆訊審結時已作出指示，如何處理雙方打算提出的申請。被告人方面，是要求控方支付上訴和原審的訟費。律政司方面，是要求案件重審。如有重審的申請，本庭會考慮申請理由後，決定是否需要開庭審理。訟費方面，如果未能以書面陳述的形式解決，會在庭審裁決。" } }, { "doc_id": 91, "seg_id": 96, "translation": { "en": "Fanny Wong, Senior Assistant Director of Public Prosecutions, and Louisa Lai, Acting Deputy Director of Public Prosecutions, for the Respondent", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員黃錦卿及署理副刑事檢控專員黎雅雯代表。" } }, { "doc_id": 91, "seg_id": 97, "translation": { "en": "Joseph Tse, SC, instructed by Ip, Kwan and Co., for the First and Third Applicants", "zh-HK": "第一及第三申請人：由葉嘉棟、關朗儀律師事務所轉聘謝華淵資深大律師代表。" } }, { "doc_id": 91, "seg_id": 98, "translation": { "en": "Kevin Chan and Fiona Nam, instructed by Tang, Lai and Leung, for the Second Applicant", "zh-HK": "第二申請人：由梁錫濂、黄國基、吳志彬律師行轉聘陳世傑及藍凱欣大律師代表。" } }, { "doc_id": 92, "seg_id": 1, "translation": { "en": "Before Madam Justice Poon, the applicant (Lau Man Hin) pleaded guilty to 4 charges, including one count of procuring an unlawful sexual act by threats or intimidation, one count of unlawful sexual intercourse with a girl under the age of 16, one count of assault occasioning actual bodily harm and one count of criminal intimidation. For these charges, he was sentenced to imprisonment for 32 months, 8 months, 4 months and 12 months respectively. The judge also ordered that some of the terms of imprisonment were to run consecutively to each other, arriving at a total term of 56 months’ imprisonment.", "zh-HK": "申請人（劉文軒）在高等法院原訟法庭法官潘‍敏‍琦席前承認了4 項控罪，包括一項以威脅或恐嚇手段促致他人作非法的性行為罪、一項與16 歲以下女童非法性交罪、一項襲擊他人致造成身體傷害罪和一項刑事恐嚇罪，分別被判入獄32 個月、8 個月、4 個月和12 個月監禁。原審法官下令刑期部分分期執行，而得出56 個月的總刑期。" } }, { "doc_id": 92, "seg_id": 2, "translation": { "en": "Mr Bruce Tse of counsel applied on behalf of the applicant for leave to appeal against the sentences. At the end of the hearing and having received the Training Centre report, we granted the applicant leave to appeal against the sentences and treating the hearing of his application as the appeal proper, we allowed the appeal, set aside the original sentences and substituted them with an order that he be placed in a Training Centre in respect of all charges. Our reasons are set out below.", "zh-HK": "申請人不服判刑，由謝志浩大律師提出申請，要求獲准就判刑上訴。經聆訊及收取過教導所報告書後，本庭批准申請人就判刑上訴，並視其申請為正式上訴，本庭裁定申請人上訴得直，並將其原判刑期撤銷，改以教導所命令作為全部罪行的判刑。以下是本庭的判案理由。" } }, { "doc_id": 92, "seg_id": 3, "translation": { "en": "The facts of the case", "zh-HK": "案件事實" } }, { "doc_id": 92, "seg_id": 4, "translation": { "en": "The victim of this case was born in September 1995. She was about 15 years old at the material time. She and the applicant studied in the same secondary school. They became lovers in May 2010 and had engaged in intimate sexual acts on numerous occasions. In mid-2011, they had quarrels over trivial matters and their relationship turned sour in early 2012. They often had quarrels and finally she revealed their relationship to her teacher, resulting in police investigation.", "zh-HK": "案件的受害人在1995 年 9 月出生，案發時約15 歲。受害人和申請人就讀同一中學，在2010 年5 月成為情侶，並多次有親密性行為。2011 年中，申請人和受害人因小事爭執，而兩人的關係更在2012 年初轉壞。兩人經常爭拗而受害人最終向老師透露兩人的關係，導致警方介入調查。" } }, { "doc_id": 92, "seg_id": 5, "translation": { "en": "After investigation, the police confirmed that in August 2010, the applicant forced the victim to have sexual intercourse with him by way of inflicting harm to himself when visiting her home. Meanwhile, he slapped her and did not use a condom during the sexual intercourse.", "zh-HK": "警方調查後證實在2010 年 8 月，申請人到訪受害人的住所時，以自殘行為威迫受害人和他性交，期間申請人曾掌摑受害人，而性交時申請人沒有使用安全套。" } }, { "doc_id": 92, "seg_id": 6, "translation": { "en": "On a day in December 2010, the applicant and the victim returned to her home and had sexual intercourse during which he did not use a condom.", "zh-HK": "2010 年 12 月某日，申請人和受害人返回她的住所，申請人和受害人性交，期間亦沒有使用安全套。" } }, { "doc_id": 92, "seg_id": 7, "translation": { "en": "On a day in April 2012, the applicant visited the victim’s home. Meanwhile, he demanded that she remove all her clothes and stand up. Then, he kept pinching and twisting her arm(s) and inner thigh(s) for as long as 15 to 20 minutes, causing multiple bruises to her body.", "zh-HK": "2012 年 4 月某天，申請人到訪受害人的住所，期間申請人要受害人脫光衣服及站起來，申請人不停掐及扭受害人的大腿內側及手臂，過程長達15 至 20 分鐘，導致受害人身體多處有瘀傷。" } }, { "doc_id": 92, "seg_id": 8, "translation": { "en": "When he was dating the victim, the applicant took 9 nude photographs of her, including 3 close shots of her breasts, 5 close shots of her private parts and one photograph showing sexual intercourse. However, the photographs did not show her face.", "zh-HK": "和受害人交往期間，申請人曾拍下受害人9 張祼照，包括3 張胸部特寫、5 張陰部特寫和一張顯示性交情況，但照片沒有顯示受害人的樣貌。" } }, { "doc_id": 92, "seg_id": 9, "translation": { "en": "On 24 April 2012, the applicant sent a message to the victim to which a photograph of her naked breasts was attached. The message was “Send it to your mom, shall I?” After she had said “No”, he then responded, “How on earth could you say ‘No’?” and “You’re doomed.”", "zh-HK": "2012 年 4 月 24 日，申請人向受害人發出一條訊息，並附有一張顯示受害人胸部的祼照。訊息內容為“send畀妳媽咪，好唔好？”，受害人回應“唔好”後，申請人再回應“妳憑咩嘢唔好呀?”及“妳死梗呀”。" } }, { "doc_id": 92, "seg_id": 10, "translation": { "en": "After arrest, the applicant admitted all the allegations.", "zh-HK": "被拘捕後，申請人承認全部有關指控。" } }, { "doc_id": 92, "seg_id": 11, "translation": { "en": "The Applicant’s background and mitigation", "zh-HK": "申請人的背景及求情理由" } }, { "doc_id": 92, "seg_id": 12, "translation": { "en": "The applicant was born on 14 October 1993. He was about 17 years old at the material time and had a previous clear record. He claimed that he had no idea that having sexual intercourse with the victim was unlawful. The Psychologist’s report said that he was unlikely to reoffend. According to the Psychologist, his violent conduct was due to his immaturity in handling gender relationship. Further, he had a wrong view that sex and love was extremely important, and his dictatorial behaviour resulted from his inability to properly control his emotion and sexual urges, coupled with his highly possessive and jealous nature.", "zh-HK": "申請人在1993 年 10 月 14 日出生，案發時約17 歲，沒有任何犯罪記錄。申請人表示不知悉和受害人性交是違法行為。心理醫生的報告書顯示，申請人重犯的機會不高。心理醫生認為申請人的暴力行為源自他處理兩性關係的方法不夠成熟，更誤以為性和愛情極為重要，而其專橫表現是因為他不懂得適當處理情緒和性衝動及有極強佔有慾和妒忌心所致。" } }, { "doc_id": 92, "seg_id": 13, "translation": { "en": "The Probation report and the Training Centre report are both positive. The applicant’s academic performance is not bad and he is quite talented in sports. According to the Training Centre report, he is suitable for training in a Training Centre.", "zh-HK": "感化官和教導所的報告都屬正面。申請人學業成績不俗，而體育天份亦甚高。教導所報告認為申請人適合接受教導所的訓練。" } }, { "doc_id": 92, "seg_id": 14, "translation": { "en": "The Judge’s reasons for sentence", "zh-HK": "原審法官的判刑理由" } }, { "doc_id": 92, "seg_id": 15, "translation": { "en": "When passing the sentences, the judge stated that although the age difference between the applicant and the victim was only 2 years, he manipulated, controlled and influenced her in their relationship. The judge emphasized that the victim had already asked for a breakup one year after they had become lovers. However, the applicant threatened to commit suicide and even used violence on her and threatened her with her nude photographs. The judge commented that the applicant’s offences had profound adverse effect on the victim, traumatizing her physically and emotionally.", "zh-HK": "原審法官判刑時指出雖然申請人和受害人年齡差別只有兩年，但申請人在兩人關係中支配、牽制及影響受害人。原審法官強調，受害人和申請人成為情侶後一年已經提出分手，但申請人以死要脅，更對受害人施用暴力及用她的祼照要脅她。原審法官指出申請人的罪行對受害人有深遠的不良影響，令她身心受創。" } }, { "doc_id": 92, "seg_id": 16, "translation": { "en": "The judge took the view that in sentencing him, the court must take into account the public disdain and abhorrence of the applicant’s offences and more weight should be put on deterrence rather than the rehabilitation of the applicant.", "zh-HK": "原審法官認為要考慮公眾對申請人所犯罪行的不恥及憎厭，亦要施以阻嚇性的判刑，而棄用給予申請人改過自新的判刑原則。" } }, { "doc_id": 92, "seg_id": 17, "translation": { "en": "In the judge’s opinion, a total starting point of 7½ years’ imprisonment was appropriate. However, in view of the applicant’s guilty pleas and other mitigation factors, she reduced the sentences to 56 months’ imprisonment.", "zh-HK": "原審法官認為適當的總量刑基準為7 年半監禁，但因申請人認罪和其他減刑因素，而得出56 個月的判刑。" } }, { "doc_id": 92, "seg_id": 18, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 92, "seg_id": 19, "translation": { "en": "On behalf of the applicant, Mr Tse contended that the starting points adopted by the judge and the final sentences she passed were manifestly excessive and wrong in principle.", "zh-HK": "代表申請人的謝‍大律師指原審法官採納的量刑基準和最終的判刑屬明顯過重，亦屬原則性犯錯。" } }, { "doc_id": 92, "seg_id": 20, "translation": { "en": "He argued that in view of the applicant’s previous clear record and background, etc, the judge should have attached more weight to the factor of rehabilitation instead of placing too much emphasis on deterrence.", "zh-HK": "謝‍大律師認為考慮到申請人的良好記錄、背景等因素，原審法官理應將申請人改過自新這因素給予較大比重，而非偏重於阻嚇其罪行。" } }, { "doc_id": 92, "seg_id": 21, "translation": { "en": "He submitted that the judge was wrong to assume that the applicant threatened to send the victim’s nude photograph to her mother, and argued that the applicant deserved a more lenient sentence.", "zh-HK": "謝‍大律師指原審法官錯誤地認為申請人恐嚇受害人會將她的祼照向她的母親發送。謝‍大律師認為申請人值得被判處較輕的刑罰。" } }, { "doc_id": 92, "seg_id": 22, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 92, "seg_id": 23, "translation": { "en": "First of all, we should state that the main purpose of sentencing a young first offender of the age of 16 or 17, unless in very exceptional circumstances, is to give him a chance to rehabilitate himself. The court should not pass a deterrent sentence on a young first offender and ruin his life.", "zh-HK": "本庭應先指出，對一名16、17 歲的初犯青少年判刑時，除非情況極為特殊，否則法庭應給予被告人一次改過自新的機會作為主要目的。法庭不應對一名初犯的青少年處以阻嚇性的判刑，毀掉該名青少年的一生。" } }, { "doc_id": 92, "seg_id": 24, "translation": { "en": "This is not a case where an experienced male adult toyed with a girl’s affections, manipulated her and used her as a means to gratify his own sexual urges or fulfil other inappropriate purposes.", "zh-HK": "本案並非是一宗富經驗的成年男士欺騙女童的感情，以操控該名女童，作為其涉慾工具或滿足其他不當目的的案件。" } }, { "doc_id": 92, "seg_id": 25, "translation": { "en": "According to the Psychologist’s report, the victim came from a single parent family. Both her parents had to work long hours and no one took care of her. The applicant’s parents were sympathetic to her and allowed her to stay in their home after school for a long time, after which the applicant would accompany her home after dinner, so that there were opportunities for them to stay together for a long time.", "zh-HK": "根據心理醫生的報告書，受害人出自單親家庭，而其雙親要長時間工作而無人照顧她。申請人的父母同情受害人的處境，容許受害人放學後在申請人家中長時間逗留，包括晚飯後才由申請人送返家，令兩人有長時間相處機會。" } }, { "doc_id": 92, "seg_id": 26, "translation": { "en": "At the material time, the applicant and the victim studied at the same secondary school and became lovers as they had got together for a long time. They even engaged in intimate acts out of love.", "zh-HK": "事發時，申請人和受害人在同一中學就讀，並因長時間交往而成為情侶，更在兩情相悅下，有親密行為。" } }, { "doc_id": 92, "seg_id": 27, "translation": { "en": "We do not want to play down the seriousness of the applicant’s offences. He had sexual intercourse with a girl under 16 on many occasions over a long period of time. Meanwhile, he even used violence on her and threatened to harm himself and send her nude photograph to her mother. His offences were not minor.", "zh-HK": "本庭不想淡化申請人罪行的重要性。申請人長時間及多次和一名不足16 歲的女童性交，期間更向受害人動武並以自殘及聲稱會將受害人祼照寄給她的母親來威脅她。申請人的罪行不輕。" } }, { "doc_id": 92, "seg_id": 28, "translation": { "en": "However, we do not think that the purposes of the applicant’s inappropriate conduct were to control the victim, deprive her of her freedom or achieve some corrupt goals. In our opinion, it was extremely likely that he acted inappropriately because he was obsessive about the victim and unwilling to lose her, and thus he committed some unlawful acts immaturely and irresponsibly out of jealousy and strong possessiveness.", "zh-HK": "但本庭認為申請人的不當行為，目的並非要控制受害人，亦並非為了達到一些腐化及剝奪受害人自由之目的。本庭認為申請人的不當行為，極可能是因為他眷戀受害人，不願意失去她及在妒忌下而作出一些幼稚、不負責任及佔有慾強的違法行為。" } }, { "doc_id": 92, "seg_id": 29, "translation": { "en": "The above view is countenanced by the Psychologist. Although the applicant’s offences are serious, the present case is of a less serious nature when compared with other similar cases.", "zh-HK": "上述看法，獲心理專家認同，申請人的罪行雖然嚴重，但屬同類案件中較為輕微的一宗。" } }, { "doc_id": 92, "seg_id": 30, "translation": { "en": "The applicant is young and has a previous clear record. He was not yet 17 at the material time. His academic performance is not bad and he is excellent in sports. We are of the view that he should be given a chance to rehabilitate himself.", "zh-HK": "申請人年輕，無案底，犯法時不足17歲，他讀書成績不俗，運動成績更優越。本庭認為應給予申請人機會改過自新。" } }, { "doc_id": 92, "seg_id": 31, "translation": { "en": "Having considered the Training Centre report, we think that it is appropriate to sentence the applicant to a Training Centre for training, so that he can return to the right track and start afresh.", "zh-HK": "考慮過教導所報告書後，本庭認為適當的處理方法是判申請人入教導所，接受訓練，令他能重回正軌及重新做人。" } }, { "doc_id": 92, "seg_id": 32, "translation": { "en": "Therefore, we grant the applicant leave to appeal against the sentences and treating the hearing of his application as the appeal proper, we allow the appeal, set aside the original sentences of 56 months’ imprisonment and substitute them with an order that he be detained in a Training Centre for appropriate training in respect of all charges.", "zh-HK": "因此，本庭批准申請人就判刑上訴，並視其申請為正式上訴。本庭判申請人上訴得直。本庭撤銷申請人原判的56 個月監禁刑期，改以下令他入教導所接受適當訓練，作為全部罪行的判刑。" } }, { "doc_id": 92, "seg_id": 33, "translation": { "en": "Mr Bruce Tse, instructed by Betty Chan & Co and assigned by the Legal Aid Department, for the applicant", "zh-HK": "答辯人：由律政司署理助理刑事檢控專員黎劍華代表。(2014 年 3 月 26 日)" } }, { "doc_id": 92, "seg_id": 34, "translation": { "en": "Mr Derek Lai AADPP, of the Department of Justice, for the respondent (26 March 2014)", "zh-HK": "由律政司署理高級檢控官梁育珩代表。(2014 年 4 月 10 日)" } }, { "doc_id": 92, "seg_id": 35, "translation": { "en": "Mr Gary Leung ASPP, of the Department of Justice, for the respondent (10 April 2014)", "zh-HK": "申請人：由法律援助署委派陳嘉慧律師行轉聘大律師謝志浩代表。" } }, { "doc_id": 93, "seg_id": 1, "translation": { "en": "Barnes J (giving the reasons for judgment of the Court):", "zh-HK": "原訟法庭法官張慧玲頒發上訴法庭判案理由書 ：" } }, { "doc_id": 93, "seg_id": 2, "translation": { "en": "The Applicant was charged with a single charge of unlawful sexual intercourse with a girl under the age of 16 years, contrary to section 124(1) of the Crimes Ordinance (Cap. 200). He pleaded not guilty to the charge and was convicted after trial by Judge Poon in the District Court. Judge Poon sentenced the Applicant to four years’ imprisonment. The Applicant sought leave to appeal against conviction and sentence.", "zh-HK": "申請人被控一項「與十六歲以下的女童進行非法性交」罪，違反香港法例第200 章《刑事罪行條例》第124(1) 條。申請人否認控罪，經審訊後被區域法院法官潘‍兆‍童裁定罪名成立。潘‍法官判處申請人監禁4 年。申請人就定罪及判刑提出申請上訴許可。" } }, { "doc_id": 93, "seg_id": 3, "translation": { "en": "At the conclusion of the hearing, we dismissed the application for leave to appeal. Here are our reasons for judgment.", "zh-HK": "本庭在聆訊後駁回上訴申請許可。以下是本庭的判案理由。" } }, { "doc_id": 93, "seg_id": 4, "translation": { "en": "Prosecution Case", "zh-HK": "控方案情" } }, { "doc_id": 93, "seg_id": 5, "translation": { "en": "In the early evening of 17th October 2009, Girl X, who was then 13, was accosted by a man when she was alone in a park. Later, Girl X went with the man to his home, where the man forcibly had sex with her. Afterwards, the man gave $300 to Girl X, who, despite her refusal to accept it, eventually took the money and left.", "zh-HK": "在2009 年10 月17日傍晚，當時年13 歲的女童 X獨自在一公園內時，一名男子上前搭訕。其後女童 X與該男子前往該男子的住所。在單位內，該男子強行與女童 X性交。該男子事後給予女童 X $300。女童 X雖拒絕接納，最終她收了錢後離去。" } }, { "doc_id": 93, "seg_id": 6, "translation": { "en": "When Girl X and the man were in the park, he got Girl X’s mobile phone number by calling his own mobile phone using Girl X’s mobile phone. He subsequently phoned Girl X.", "zh-HK": "在該男子與女童 X在公園期間，該男子曾用女童 X的手提電話致電他本人的手提電話，因而得悉女童 X的手提電話號碼。該男子其後亦曾致電女童 X。" } }, { "doc_id": 93, "seg_id": 7, "translation": { "en": "Thereafter, Girl X, whilst going shopping with her friend Z, suddenly whispered to Z that she had traded her body for the money she had. Girl X explained to Z that in a park, she met a man who, upon learning that she needed money, offered to pay her if she allowed him to stroke her body. Girl X agreed to it. After Girl X had followed the man to his home, he not only stroked Girl X, but also forcibly had sex with Girl X until he ejaculated. The man gave $300 to Girl X, who left after taking the money.", "zh-HK": "其後，女童 X與朋友Z逛街時，突然悄悄告訴Z她的錢是用肉體換來的。女童 X向Z解釋她在公園遇到一名男子，該男子知她需要錢用，便建議女童 X讓他撫摸身體，他會給予女童 X金錢。女童 X同意。但當女童 X跟該男子返回該男子家中後，該男子不單撫摸女童 X，更強行與女童 X發生性行為，直至射精為止。該男子給予女童 $300，女童 X收錢後便離開。" } }, { "doc_id": 93, "seg_id": 8, "translation": { "en": "As Girl X was afraid of getting pregnant, Z obtained a pregnancy tester for Girl X. When they were subsequently in a washroom where Girl X was about to take the pregnancy test, their friend, Y, happened to see it. When pressed by Y for the reason, Girl X cried and became very emotional. Girl X said that on 17th October, in a park, she had come to know a man who later dragged her to his flat and raped her.", "zh-HK": "女童 X因害怕懷孕，Z協助取了一支驗孕棒給女童 X。其後，當她們在一洗手間內，女童 X準備驗孕時，剛巧被她們的朋友Y看見。Y追問理由，女童 X便哭起來，表現得非常激動。女童 X稱她在10 月17 日在公園內認識了一名男子，後遭該男子拉到他寓所強姦。" } }, { "doc_id": 93, "seg_id": 9, "translation": { "en": "On 22nd October 2009, the man phone Girl X, asking to see her. Girl X, Y and Z brought with them cleaning agent and cutters to the downstairs of where the man lived, intending to see the man and carry out a revenge plan.", "zh-HK": "約在2009 年10 月22 日，該男子致電女童 X，要求與她見面。女童 X與Y和Z帶備清潔劑、刀前往該男子的寓所樓下，準備與該男子見面及進行復仇計劃。" } }, { "doc_id": 93, "seg_id": 10, "translation": { "en": "They got scared during the wait. Someone texted others to ask them to come for support. In the end, the man did not show up and they parted.", "zh-HK": "在等候期間，各人害怕起來；有人發短訊通知其他人到場支援。該男子最終沒有出現，各人散去。" } }, { "doc_id": 93, "seg_id": 11, "translation": { "en": "Girl X’s school subsequently learnt of this and reported it to the police. Girl X was sent to a hospital for examination. She provided the police with the mobile phone number of the man in question and gave the police a description of the man’s appearance.", "zh-HK": "其後女童 X就讀的學校得悉此事，報警處理。女童 X被送往醫院接受檢驗。女童 X將涉案男子的手提電話號碼提供給警方，她亦將該男子的外貌告知警方。" } }, { "doc_id": 93, "seg_id": 12, "translation": { "en": "On 23rd October 2009, Girl X was asked by the police to take them to find the flat concerned. Girl X brought the police to Rooms 3 and 4, 1st Floor, No. 127 Yee Kuk Street. She hesitated briefly before pointing out Room 3 to the police.", "zh-HK": "在2009 年10 月23 日，警方要求女童 X帶領他們找出涉案單位。女童 X將警員帶到醫局街127 號1 樓3 號及4 號室門前，稍作遲疑後向警方指出是3 號室。" } }, { "doc_id": 93, "seg_id": 13, "translation": { "en": "On the following day, police officers went to Room 3, 1st Floor, No. 127 Yee Kuk Street and knocked on the door. An old couple whose appearance did not match Girl X’s description answered the door. The police officers then went to Room 4 and knocked on the door, which was answered by the Applicant, whose appearance was consistent with the description given by Girl X. Thus, the police made inquiries of the Applicant. The police officer asked the Applicant, “Hey, what happened to a girl a few days ago?” The Applicant responded at the time, “I did not rape her, Ah sir, I did not rape her.” The police officer immediately arrested and cautioned the Applicant. The police officer arrested the Applicant for rape and told the Applicant Girl X’s name as well as the date of offence. Under caution, the Applicant said, “I did not rape her. I came across the girl in a park when I was on my way home. She told me she had no money and wanted to go to my place to wait until dawn when she would go home after her father had gone to work. I then brought her (to my) place so that she would not need to stay in the street until dawn.”", "zh-HK": "翌日，警員前往醫局街127 號1 樓3 號室敲門，應門的是一對老夫婦，外貌與女童 X所描述的不符。警員遂前往4 號室叩門，應門的是申請人。由於申請人的外貌與女童 X的描述吻合，警員便向申請人展開調查。警員向申請人說：「喂，早幾日個女仔發生啲咩嘢事呀？」申請人當時的回應是：「我冇強姦佢，阿sir，我冇強姦佢。」警員隨即拘捕及警誡申請人。當時警員是以強姦罪拘捕申請人，並向申請人指出女童 X的姓名及案發日期。警誡下，申請人說：「我冇強姦佢。我返屋企時响公園撞到個女仔，佢同我講冇錢，想到我屋企等到天光阿爸返咗工就返屋企，我於是就帶佢返屋企，唔駛佢响街等天光囉。」" } }, { "doc_id": 93, "seg_id": 14, "translation": { "en": "The facts of the case disclosed that the Applicant occupied the said Room 4, which was rented by him. The mobile phone number provided by the Applicant to the landlord of the flat was the same as that of the man in question as supplied by Girl X to the police.", "zh-HK": "案情顯示，申請人租住上述4 號室。申請人提供給單位業主的手提電話號碼與女童 X提供給警方有關涉案男子的手提電話號碼相同。" } }, { "doc_id": 93, "seg_id": 15, "translation": { "en": "Girl X was unable to identify the man in question in a subsequent identification parade held by the police. The forensic pathologist’s report stated that there were no recent injuries to Girl X’s vulva, vagina or cervix and that there were no recent injuries to her hymen.", "zh-HK": "女童 X其後在警方舉行的認人手續中未能認出涉案男子。法醫報告亦顯示女童 X的外陰、陰道及子宮頸無新近造成的損傷，處女膜亦無任何新近造成的損傷。" } }, { "doc_id": 93, "seg_id": 16, "translation": { "en": "Defence Case", "zh-HK": "辯方案情" } }, { "doc_id": 93, "seg_id": 17, "translation": { "en": "The Applicant did not dispute voluntariness or accuracy of what he said under caution. He elected not to give evidence or call any witnesses.", "zh-HK": "申請人並不爭議警誡供詞的自願性及準確性。申請人選擇不作供，亦不傳召證人。" } }, { "doc_id": 93, "seg_id": 18, "translation": { "en": "Grounds of appeal (against conviction)", "zh-HK": "上訴理由(定罪)" } }, { "doc_id": 93, "seg_id": 19, "translation": { "en": "Mr. Khattak, Counsel for the Applicant, put forward four grounds of appeal against conviction:", "zh-HK": "申請人代表林‍沙‍文大律師就定罪提出4 項上訴理由：" } }, { "doc_id": 93, "seg_id": 20, "translation": { "en": "In evidence, Girl X said that she was uncertain whether she had had sex and that she was not sure if she was still a virgin. It was unsafe and unsatisfactory to convict the Applicant on this basis.", "zh-HK": "女童 X作供聲稱，不確定曾否有過性行為，也不肯定自己是否仍是處女。在此基礎下，申請人被定罪是不安全、不穩妥的。" } }, { "doc_id": 93, "seg_id": 21, "translation": { "en": "The trial judge did not deal with the parts where the evidence of Girl X, Z and Y differed substantially. Girl X was not an honest witness. The court should not have relied on her evidence to convict the Applicant.", "zh-HK": "原審法官沒有處理女童 X、Z及Y在證供上嚴重分歧的地方。‍女童 X並非誠實證人，法庭不應倚賴她的證供來將申請人定罪。" } }, { "doc_id": 93, "seg_id": 22, "translation": { "en": "Girl X clearly could not identify the Applicant in the identification parade as the man in question. The Prosecution failed to prove beyond reasonable doubt that the Applicant was the man in question.", "zh-HK": "女童 X在認人手續中，清楚不能辨認到申請人為涉案的男子。控方未能在毫無合理疑點下證明申請人就是涉案男子。" } }, { "doc_id": 93, "seg_id": 23, "translation": { "en": "Girl X and Y looked relaxed and smiled when giving evidence. In particular, Girl X frequently giggled and did not take the matter seriously. The trial judge, however, failed to properly consider their demeanour.", "zh-HK": "女童 X和Y在作供時神態輕鬆、展露笑容；尤其女童 X經常發笑、態度不認真，但原審法官對她們的行為舉止沒有給予適當的考慮。" } }, { "doc_id": 93, "seg_id": 24, "translation": { "en": "Ground of Appeal (1)", "zh-HK": "上訴理由 (1)" } }, { "doc_id": 93, "seg_id": 25, "translation": { "en": "Mr. Khattak, citing the transcript of the evidence, submitted that Girl X was not sure whether she was still a virgin or whether she had had sex. The contact between the man and her took place with the lights off and senses were all that could be relied upon. Further, the forensic pathologist’s report contained various parts favourable to the Applicant in that it showed the absence of any superficial injuries to Girl X’s body, of any mark of recent tears at her private parts and of any sign of recent sexual intercourse.", "zh-HK": "林‍大律師引述證供謄本，指出女童 X不肯定自己是否仍是處女，亦不肯定是否曾經進行性行為。她與該男子的接觸是在關燈之下進行，一切全憑感覺。除此之外，法醫報告顯示多處對申請人有利的地方，顯示女童 X身體無任何外傷、下體無新近撕裂的痕跡，亦無新近性行為的跡象。" } }, { "doc_id": 93, "seg_id": 26, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 93, "seg_id": 27, "translation": { "en": "According to the evidence, Girl X said that she had sat on the bed upon arrival at the man’s flat. The man pushed her onto the bed, grabbed both of her hands with one of his hand, pressed his legs on Girl X’s legs, removed her top, shorts as well as knickers and had sex with her. Girl X said that sexual intercourse referred to the penetration into a woman’s private parts with a man’s private parts. She stated that she had a nasty feeling at her private parts at that time and that she had seen the man’s private parts. According to Girl X, the sexual intercourse lasted for about 20 to 30 minutes. The man inserted his private parts into her private parts and ejaculated, but she could not see the colour of the semen due to the lack of light.", "zh-HK": "根據證供，女童 X指當她去到該男子單位後坐在床上，該男子將她推倒在床上，用一隻手捉著她雙手，並用他的腿壓在女童 X的腿上、脫去她的衣服、短褲和內褲，然後跟她發生性行為。女童 X指性行為是男性的下體放入女性的下體內。她說她當時覺得下體很難受。她說看到該男子的下體。據女童 X所指，發生性行為的時間大約20至30 分鐘。該男子將他的下體放入了她的下體內並射了精，但因沒有燈光，所以她看不到精液的顏色。" } }, { "doc_id": 93, "seg_id": 28, "translation": { "en": "Mr. Khattak put it to Girl X in cross-examination that she could not possibly see what the man had done in the dark. Girl X agreed that the lights were off then, but stated that something believed to be semen came out from her vagina afterwards. She admitted that she had never seen semen prior to that. Mr. Khattak put it to her that she only felt something enter her private parts, but she was not sure what that was, with which Girl X agreed. She also agreed that the man had put his fingers into her private parts.", "zh-HK": "在盤問時，林‍大律師向女童 X指，在黑暗的環境中，她是應該看不見該男子做過甚麼。女童 X同意當時是熄了燈，但她反而指事後在她的陰道內有相信是精液的東西流出來。她承認之前未見過精液。林‍大律師向她指出，她祇是感覺到有東西進入下體，但不肯定是甚麼。女童 X同意。她亦同意該男子曾經用手指進入她的下體。" } }, { "doc_id": 93, "seg_id": 29, "translation": { "en": "Towards the end of cross-examination, Mr. Khattak put it to Girl X that she could not be sure whether she was still a virgin and whether she had formally had sex. Girl X initially said that she had no idea, but later agreed.", "zh-HK": "在盤問尾段，林‍大律師向女童 X指出，女童 X不敢肯定自己是否仍是處女和是否有過正式的性行為。女童 X起初說不知道，後來同意。" } }, { "doc_id": 93, "seg_id": 30, "translation": { "en": "On whether Girl X had sex with the man, the trial judge found that:", "zh-HK": "原審法官就女童 X與該男子是否曾經進行性行為這方面有以下的裁斷：" } }, { "doc_id": 93, "seg_id": 31, "translation": { "en": "“42.… As to whether it further developed into sex, I find that X fully understands what sexual intercourse is. She gave evidence that the defendant’s private parts had penetrated into her private parts, that she had seen the defendant’s private parts and that she had seen semen coming out from her private parts afterwards. The pregnancy test she subsequently took demonstrated her then belief that sexual intercourse had actually taken place. In spite of X’s acknowledgment at some stage under cross-examination that she was unsure whether what had entered her private parts were the defendant’s private parts, I observed that by that time, X had lost her patience with continuing cross-examination. This answer is insufficient to overturn her previous evidence, much less capable of casting doubt upon her evidence.”", "zh-HK": "「42.… 就是否有進一步至發生性行為方面，本席認為X是充分了解甚麼是性行為的，她在證供中亦指出了被告人的下體曾進入了她的下體，她有看見被告人的下體，而事後亦見到有精液由她的下體流出，而她之後的驗孕行為亦印證了她當時是相信確實有性行為發生的。雖然X在被盤問時的某階段曾同意她不肯定進入她下體是否被告人的下體，但本席的觀察是當時X對繼續接受盤問已失去耐性，此答案不足以推翻她之前所作的證供，甚至不能對她的證供構成疑點。」" } }, { "doc_id": 93, "seg_id": 32, "translation": { "en": "The relevant questions and answers during the trial are as follows:", "zh-HK": "在審訊時有關的問題和答案如下：" } }, { "doc_id": 93, "seg_id": 33, "translation": { "en": "“Q:So (we) have heard so much evidence (and) read the medical report. Is it true that you are uncertain to this day whether you have formally had sex (and) cannot be sure whether you are still a virgin?", "zh-HK": "「問：所以聽番咁多嘅證據，睇番個醫學報告，時至今日妳自己都唔能夠確定自己係咪曾經進行過正式性行為嘅，唔敢肯定自己仍然係唔係處女，係咪?" } }, { "doc_id": 93, "seg_id": 34, "translation": { "en": "A:Pardon me. Can’t hear (you) clearly.", "zh-HK": "答：咩嘢話？聽唔清楚。" } }, { "doc_id": 93, "seg_id": 35, "translation": { "en": "Q:(We) have heard so much evidence and read so many medical reports. Do (you) agree that you are uncertain to this day whether you are a virgin, a virgin who has not formally had sex?", "zh-HK": "問：聽番咁多證據，睇番咁多醫學嘅報告，時至今日，妳自己都唔能夠確定自己係咪一個處女，未經一個正式嘅性行為嘅處女，同唔同意？" } }, { "doc_id": 93, "seg_id": 36, "translation": { "en": "A:No idea.", "zh-HK": "答：唔知喎。" } }, { "doc_id": 93, "seg_id": 37, "translation": { "en": "Q:Does that mean (you) are not sure?", "zh-HK": "問；即係唔肯定，係咪？" } }, { "doc_id": 93, "seg_id": 38, "translation": { "en": "A:Yes.” [Emphasis added by this court.]", "zh-HK": "答：係。」[本庭加以強調]" } }, { "doc_id": 93, "seg_id": 39, "translation": { "en": "Mr. Khattak asked Girl X whether she could be sure she was a virgin who “had not formally had sex”. What did “formally having sex” mean? The question itself was not clear.", "zh-HK": "林‍大律師問女童 X她是否能夠肯定自己是一個「未經正式性行為」的處女。何謂「正式性行為」？問題根本不清晰。" } }, { "doc_id": 93, "seg_id": 40, "translation": { "en": "Mr. Khattak cross-examined the witness for the whole afternoon. As observed by the trial judge, who had the opportunity to hear and see the witness, Girl X had lost patience with continuing cross-examination. We could not see any reason to interfere with Judge Poon’s findings. This ground of appeal failed.", "zh-HK": "林‍大律師盤問了證人整個下午，原審法官有機會耳聞目睹證人。根據他的觀察，女童 X對繼續接受盤問已經失去耐性。本庭並無理據去干預潘‍法官的裁定。此上訴理由不成立。" } }, { "doc_id": 93, "seg_id": 41, "translation": { "en": "Ground of Appeal (2)", "zh-HK": "上訴理由 (2)" } }, { "doc_id": 93, "seg_id": 42, "translation": { "en": "On this ground of appeal, Mr. Khattak, citing the contents of the transcript, submitted that as shown by the evidence, after the offence, Girl X, bringing along with her Y, Z and some people with triad background, returned to the flat where the offence had taken place to find the man; however, Girl X denied any revenge plan. Y revealed that Girl X and she had gone together to carry out a planned revenge, bringing along cutters and cleaning agent. Girl X’s evidence and the recent complaint she had made to Y both indicated that Girl X went with a male stranger to his home unwillingly or half willingly. Nonetheless, according to Z’s evidence, Girl X told Z that she willingly sold her body for money. Girl X responded to all the allegations about her having said so to Z by saying she “could not recall”.", "zh-HK": "就此上訴理由，林‍大律師引述謄本內容，指證供顯示女童 X於案發後帶同Y、Z和一些有黑社會背景的人返回案發單位找尋該名男子，但女童 X卻否認有任何報復的計劃。Y透露她與女童 X是有計劃地一起去尋仇，並帶同刀和清潔劑。女童 X的證供及她向Y作出的「新近投訴」均指女童 X是不自願或半自願跟一名陌生男子回家；但根據Z的證供，當時女童 X告知Z是她自願出賣肉體賺取金錢的。女童 X對她曾向Z如此說全部以「唔記得」回應。" } }, { "doc_id": 93, "seg_id": 43, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 93, "seg_id": 44, "translation": { "en": "The trial judge was fully aware of the differences in the evidence of Girl X, Y and Z. He briefly stated such differences when setting out the facts. In reaching his verdict, Judge Poon found Y and Z to be honest and reliable witnesses and that they remained unshaken under cross-examination. Specifically, when asked about what happened on the day they went to seek revenge on the man, Y revealed all the details without the slightest sign of hiding anything.", "zh-HK": "對於女童 X與Y及Z證供之間分歧之處，原審法官完全知曉。他在列舉案情時已簡略地提出了不同的地方。潘‍法官在作出裁決時，裁定Y和Z都是誠實可靠的證人，被盤問時完全沒有動搖，尤其是Y，當被問及前往向該男子尋仇當天的情節時，細節是和盤托出，毫無隱瞞的跡象。" } }, { "doc_id": 93, "seg_id": 45, "translation": { "en": "Whilst accepting that Girl X was hiding something with respect to her evidence on whether she had consented to being touched by the man in exchange for money, Judge Poon did not find Girl X to be untruthful in aspects other than this. Given the context, Judge Poon accepted Girl X’s evidence as credible in relation to what happened between Girl X and the man on the material day, except whether or not she consented to being touched by the man in exchange for money.", "zh-HK": "潘‍法官同意有關女童 X是否同意被該名男子撫摸以換取金錢這方面的證供有所隱瞞，但他裁定除此之外，他看不到女童 X在其他地方有任何不盡不實之處。根據上文下理，潘‍法官就當日女童 X與該男子究竟發生了甚麼事情，除了是否同意被該男子撫摸以換取金錢這情節外，他接納女童 X的證供是可靠的。" } }, { "doc_id": 93, "seg_id": 46, "translation": { "en": "Judge Poon was the judge of facts. He had the opportunity to hear and see all the witnesses. He was perfectly entitled to accept parts of the evidence of a particular witness while rejecting other parts of his/her evidence. We could see no reason to interfere with Judge Poon’s findings of fact. This ground of appeal failed.", "zh-HK": "潘‍法官是事實的裁斷者。他有機會耳聞目睹所有的證人，他亦絕對有權接納證人部分的證供和拒納其他部分的證供。本庭沒有理據去干預潘‍法官就事實方面的裁斷。此上訴理由不成立。" } }, { "doc_id": 93, "seg_id": 47, "translation": { "en": "Ground of Appeal (3)", "zh-HK": "上訴理由 (3)" } }, { "doc_id": 93, "seg_id": 48, "translation": { "en": "28.Mr. Khattak submitted that Girl X clearly could not identify the Applicant in the identification parade as the man in question. Girl X said that the man in question had on his arm a conspicuous red scar and that such person was not in the line-up. Mr. Khattak further submitted that Girl X and Y had pointed out to the police that the crime scene was at 125 Yee Kuk Street. The police officer’s evidence was that Girl X had pointed out 1st Floor, 127 Yee Kuk Street as the crime scene and, at one stage, pointed out Room 3. Police officers later made inquiries at Room 3 and found a 60-odd-year-old male occupant who did not match the description Girl X gave. They then proceeded to knock on another door to make inquiries. The Applicant was precisely the occupant of Room 4. Mr. Khattak complained about the police officers’ failure to make inquiries at No. 125.", "zh-HK": "林‍大律師指出，女童 X在認人過程中清楚不能辨認申請人就是涉案男子。女童 X指涉案男子的手臂上有明顯紅色疤痕，而該人不在認人的行列。此外，林‍大律師指女童 X及Y曾經向警方指出案發現場是醫局街125 號，警員的證供是女童 X指出案發地點是醫局街127 號1 樓，並曾經指出3 號室。警員其後到3 號室調查，發現60 多歲的男住客不符合女童 X的描述，他們才去拍其他門作調查，而申請人正住在4 號室。林‍大律師投訴警員並無去125 號作出任何調查。" } }, { "doc_id": 93, "seg_id": 49, "translation": { "en": "In respect of the phone number referred to in the present case, Mr. Khattak submitted that the landlord merely said that the Applicant had provided the phone number for contact purpose, but there was no evidence as to who the user of that number was and whether the Applicant was the only occupant of the room.", "zh-HK": "就有關案中所提及的電話號碼，林‍大律師指業主祇是說申請人曾提供該電話號碼作聯絡用途，但究竟是誰人用該號碼及申請人的房間是否祇有申請人居住，則沒有這方面的證供。" } }, { "doc_id": 93, "seg_id": 50, "translation": { "en": "For the reasons set out above, Mr. Khattak submitted that the Prosecution had failed to prove beyond reasonable doubt that the Applicant was the man who had allegedly violated Girl X.", "zh-HK": "林‍大律師指，綜合上述理據，控方未能在毫無合理疑點情況下證明申請人就是涉嫌侵犯女童 X的男子。" } }, { "doc_id": 93, "seg_id": 51, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 93, "seg_id": 52, "translation": { "en": "The evidence showed that No. 125 and No. 127 shared the same entrance. In reaching his findings, the judge took the view that there was nothing surprising or suspicious about the two girls’ mixing up the house numbers and addresses, thus saying it was No. 125 when in fact, it was No. 127.", "zh-HK": "證據顯示，125 號同127 號是共用同一個入口的。法官在作出裁斷時，認為兩名女童是混淆了門牌地址，所以她們說了125 號而事實上是127 號，這點不足為奇，並無可疑之處。" } }, { "doc_id": 93, "seg_id": 53, "translation": { "en": "This we agreed with Judge Poon. There was evidence that Girl X brought the police to the units on the first floor of No. 127 but she was somewhat hesitant as to which room it was. She hesitated before saying it was No. 3. When the police officer went there for investigation on the following day, he found that the door was answered by an old couple of whom the man had an appearance that was inconsistent with the description Girl X gave. He then proceeded to Room 4 and knocked on the door, which was answered by the Applicant. What was important was that the Applicant’s appearance matched the description given by Girl X.", "zh-HK": "本庭同意潘‍法官的看法。證供顯示，女童 X帶同警員到達127 號1 樓單位，但她對於是哪個房間則有點猶豫。她在猶豫後說是3 號。警員翌日往調查時，發覺應門者是對老夫婦，男子的外貌與女童 X所描述的不符，於是他便前往敲4 號房的門，應門者是申請人。重要的是，申請人的外貌與女童 X所描述的吻合。" } }, { "doc_id": 93, "seg_id": 54, "translation": { "en": "The police officer asked the Applicant during inquiries, “Hey, what happened to a girl a few days ago?” The Applicant immediately replied, “I did not rape her, Ah sir, I did not rape her.” After the police officer had arrested and cautioned the Applicant, stating Girl X’s name and the date of offence, the Applicant said, “I did not rape her. I came across the girl in a park when I was on my way home. She told me she had no money and wanted to go to my place to wait until dawn when she would go home after her father had gone to work. I then brought her (to my) place so that she would not need to stay in the street until dawn.” It was Girl X’s evidence that on the day of offence, a man brought her from the park to his home. That being the case, the Applicant clearly was the man who took her to his home although Girl X did not directly point out the Applicant as the man who had brought her to his home.", "zh-HK": "當警員向申請人調查時問：「喂，早幾日個女仔發生啲咩嘢事呀？」申請人即時回應：「我冇強姦佢，阿sir，我冇強姦佢。」當警員向申請人作出拘捕警誡，說出女童 X的姓名和案發日期後，申請人說：「我冇強姦佢。我返屋企時响公園撞到個女仔，佢同我講冇錢，想到我屋企等到天光阿爸返咗工就返屋企。我於是就帶佢返屋企，唔駛佢响街等天光囉。」女童 X的證供是案發當日，一名男子由公園帶她回家。在這情況下，雖然女童 X沒有直接指出申請人便是帶她回家的男子，但明顯地申請人便是帶她回家的男子。" } }, { "doc_id": 93, "seg_id": 55, "translation": { "en": "A more compelling piece of evidence was that the phone number given by the Applicant to the landlord for contact purpose was precisely the man’s phone number provided by Girl X to the police. Judge Poon made the following findings in this regard:", "zh-HK": "另一項更為強而有力的證據，便是申請人給他的業主用作聯絡的電話號碼正正是女童 X提供給警方該男子的電話號碼。潘‍法官就這方面作出以下的裁定：" } }, { "doc_id": 93, "seg_id": 56, "translation": { "en": "“40.In respect of whether the defendant was the man, I take the view that despite the absence of direct identification by X of the defendant as the man who had had sex with her, the defendant admitted under caution that he had brought X to his home. Notwithstanding the absence of any evidence to prove that the defendant knew X’s name, the detective police constable stated the date of offence when administering the caution. This proved that the defendant had admitted having brought the girl to his home on the material day. Additionally, the defendant lived in the said unit and the mobile phone number he gave to the landlord for contact purpose was consistent with the mobile phone number the man used to contact X. All such evidence established beyond reasonable doubt that the defendant was the man who took X to his home on the material day.”", "zh-HK": "「40.本席認為，就被告人是否該男子方面，雖然X沒有直接認出被告人就是與她發生性行為的男子，但是被告人在警誡後承認了他曾帶X回家，雖然沒有證據證明被告人知道X的名字，但是探員在施行警誡時說出了事發日子，這證明了被告人承認了在當天曾帶女童回家，加上被告人在該單位居住，他給業主作為聯絡的手機號碼與該男子與X聯絡的手機號碼相符。這種種證據，經已在毫無合理疑點下證明了被告人便是當日帶X回家的男子。」" } }, { "doc_id": 93, "seg_id": 57, "translation": { "en": "This ground of appeal failed.", "zh-HK": "此上訴理由不成立。" } }, { "doc_id": 93, "seg_id": 58, "translation": { "en": "Ground of Appeal (4)", "zh-HK": "上訴理由 (4)" } }, { "doc_id": 93, "seg_id": 59, "translation": { "en": "Mr. Khattak submitted that Girl X and Y looked relaxed and smiled when giving evidence. In particular, Girl X did not take the matter seriously. The trial judge, however, failed to properly consider her demeanour.", "zh-HK": "林‍大律師指，女童 X和Y作供時神態輕鬆、展露笑容，尤其女童 X的態度不認真，但法官對她的行為舉止沒有給予適當的考慮。" } }, { "doc_id": 93, "seg_id": 60, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 93, "seg_id": 61, "translation": { "en": "We had read the relevant transcript. Girl X did smile when giving evidence. She also agreed that she looked relaxed. Even so, there were also occasions when Girl X was impatient. The demeanour of a witness in giving evidence is simply something the trial judge had to note but it is not the main issue. Whether one’s evidence is reliable and credible is not merely determined by his demeanour.", "zh-HK": "本庭參閱有關謄本，女童 X的確在作證期間有展露笑容，她亦同意她的神態輕鬆，但亦有顯得女童 X不耐煩的情況。證人作供時的神態舉止祇是一些原審法官須要留意的事項，但並非是主要事項。畢竟一個人作供是否可靠、可信，不是單從他的神態舉止作出決定的。" } }, { "doc_id": 93, "seg_id": 62, "translation": { "en": "Mr. Khattak submitted that Girl X was supposed to give evidence in a very solemn manner in court. We noted that Girl X actually did not give her evidence in court; rather, she testified in another room via CCTV link. Under cross-examination, Girl X smiled, her manner relaxed. Be that as it may, during the video recorded interviews with the police, she not only looked embarrassed when she described what had happened, but was in tears at some stage. After all, Girl X and Y were children who had just reached 14. When considering their demeanour in giving evidence, regard had to be given to their age and life experience. This ground of appeal failed.", "zh-HK": "林‍大律師指，女童 X在庭上作證時態度應該會很嚴肅。本庭注意到女童 X其實並非在法庭作證，而是在另一個房間，透過電視錄像作證。雖然女童 X被盤問時有展露笑容、態度輕鬆，但當她接受警方會面錄影，在描述發生事件時，她不單露出尷尬的表情，同時更曾落淚。畢竟女童 X和Y當時祇是剛滿14 歲的兒童，在考慮到她們在作供時的神態舉止時，必須顧及她們的年紀及人生經驗。此上訴理由不成立。" } }, { "doc_id": 93, "seg_id": 63, "translation": { "en": "Grounds of Appeal (against sentence)", "zh-HK": "上訴理由(判刑)" } }, { "doc_id": 93, "seg_id": 64, "translation": { "en": "It was submitted by Mr. Khattak that the 4 years’ imprisonment was excessive. The special mitigating circumstances in the present case, as he pointed out, were that Girl X was hanging around by herself in the park and she willingly sold her body for money. The Applicant should not have been sentenced to 4 years’ imprisonment even if he was convicted of having unlawful sexual intercourse with a girl under the age of 16 years. Mr. Khattak cited the following three cases for the court to consider:", "zh-HK": "林‍大律師指4 年刑期是過重。他指本案的特別求情理由是女童 X獨自在公園徘徊，並自願以肉體作金錢的交易。即使申請人被判與未滿16 歲的女童性交罪名成立，亦不應判處4 年監禁。林‍大律師引用下列三宗案例供本庭參考：" } }, { "doc_id": 93, "seg_id": 65, "translation": { "en": "(1)HKSAR v Chan Kwong Pui [2003] 4 HKC 208, where a 34-year-old man had sex with a girl under 16 and was sentenced to 16 months’ imprisonment following his guilty plea.", "zh-HK": "HKSAR v Chan Kwong Pui [2003] 4 HKC 208。該案中，34 歲男子與16 歲以下的女子發生性行為，認罪後被判刑16 個月。" } }, { "doc_id": 93, "seg_id": 66, "translation": { "en": "(2)HKSAR v Lai Yip Sing [2001] 2 HKLRD 601, where a 24-year-old man met a 14-year-old girl via an online phone chat line and had sex with her on two occasions. The total sentence was one of 3 months’ imprisonment.", "zh-HK": "HKSAR v Lai Yip Sing [2001] 2 HKLRD 601。該案中，24 歲男子透過網上電話交談，認識一名14 歲女子，與她兩度發生性行為，總刑期是3 個月監禁。" } }, { "doc_id": 93, "seg_id": 67, "translation": { "en": "(3)HKSAR v Lau Chi Cheung [2008] 4 HKLRD 432, where a 22-year-old university student met on the internet a 12-year-old girl with whom he had sex. He received a sentence of 13 months’ imprisonment.", "zh-HK": "HKSAR v Lau Chi Cheung [2008] 4 HKLRD 432。該案中，22 歲大學生在網上認識了12 歲女童，與她性行為後被判刑期13 個月監禁。" } }, { "doc_id": 93, "seg_id": 68, "translation": { "en": "Reasons for sentence", "zh-HK": "判刑理由" } }, { "doc_id": 93, "seg_id": 69, "translation": { "en": "In sentencing, the trial judge had considered the following:", "zh-HK": "原審法官在判刑時作出以下的考慮：" } }, { "doc_id": 93, "seg_id": 70, "translation": { "en": "“13.Unlawful sexual intercourse with a girl under the age of 16 years is a serious offence that carries a maximum penalty of 5 years’ imprisonment. As the Court of Appeal clearly stated in Chan Kwong Pui , the court had no sentencing guideline for cases of this type and the creation of this offence was to protect underage girls; therefore the age of the girl was an important consideration in sentencing. The age gap between a defendant and a victim was also an important consideration.", "zh-HK": "「13.與16歲以下女童非法性交，是嚴重罪行，最高刑罰是5 年的監禁。上訴庭在陳廣培(譯音)一案中指明，法庭就此類案件並無判刑指引，而訂立此罪行是為了保護未成年少女，所以在判刑時，女童的年齡是一項重要的考慮因素。被告人與受害人的年齡差距，也是重要的考慮因素。" } }, { "doc_id": 93, "seg_id": 71, "translation": { "en": "14.At the time of the incident, X was only 13 years and 7 months old whilst the defendant was 49. X is within the lower end of the age category for this offence. Had she been under the age of 13, the defendant would have faced a graver offence carrying a maximum sentence of life imprisonment. The age gap of 35 years in the present case is relatively large among similar cases. This is very serious.", "zh-HK": "14.事發時，X只有13歲另7個月，而被告人已經是49歲。X的年齡可歸類為相同控罪裡較少的，因為若年齡低於13歲的話，被告人所面對的控罪便會更嚴重了，最高刑罰將會是終生監禁。此案的年齡差距，亦屬同類案件中較大的，達到35年之差，非常嚴重。" } }, { "doc_id": 93, "seg_id": 72, "translation": { "en": "15.As previously stated, X did cry and tell the defendant to stop during the sexual intercourse, but was still ignored by the defendant. This was close to rape. Had the defendant used violence, it would have been an aggravating feature. The absence of violence, on the other hand, would not mitigate the severity of the case. In Chung Yi Hung, the Court of Appeal, upon considering the facts of that case, took the view that the victim was extremely unwilling at the time of the offence and adopted a starting point of 5 years’ imprisonment. Although the offences in that case concerned the more serious unlawful sexual intercourse with a girl under the age of 13 years, the Court of Appeal had clearly established that this was an important consideration.", "zh-HK": "15.正如先前所述，X在性交時有哭泣和叫被告人停止，但被告人仍然不理，幾近強姦。若果被告人有使用暴力，這只會令案情更加嚴重，而沒有使用暴力，卻不能減輕案件的嚴重性。在鍾銳洪一案中，上訴庭考慮了該案案情，認為受害女童在案發時極不情願，採納了5年的監禁為判刑起點，雖然該案的控罪是較嚴重的與13歲以下女童非法性交，但上訴庭已清楚確立了此為一項重要的考慮因素。" } }, { "doc_id": 93, "seg_id": 73, "translation": { "en": "16.I observed X’s appearance and demeanour during the trial and I do not think she looked older than 16. She spoke in a childish manner. It was impossible not to notice that she was far younger than 16 after a conversation with her. I do not agree with Mr. Khattak’s comments on X’s appearance; nor do I accept the defendant’s version that he thought X was 17 or 18.", "zh-HK": "16.本席在審訊時觀察了X的外貌及言行，不認為她看似高於16歲，而她的談吐幼稚，與她對話後不可能不知她遠少於16歲，本席不同意林大律師就X外表的評論，亦不接受被告人以為X是17、18歲的說法。" } }, { "doc_id": 93, "seg_id": 74, "translation": { "en": "17.The fact that money was involved, in my view, not only failed to lessen the defendant’s culpability, but made the case more serious. I do not believe that X was to blame in any way for this matter. She was only a pliable 13-year-old girl. It is highly irresponsible for the 50-year-old defendant, a father himself, to say that the girl was to blame.", "zh-HK": "17.本席有金錢交易的成份，這不但不能減輕被告人的罪責，還令案情更加嚴重。本席不認為X就事件要負上任何責任，她只是一名13歲的女童，容易受人影響，而被告人已步入50歲，為人父親，要說女童須負上責任本身是極不負責任的。" } }, { "doc_id": 93, "seg_id": 75, "translation": { "en": "18.This incident has caused psychological trauma to X, affecting her future development. The defendant’s failure to use any condom caused her to worry that she might become pregnant and the anxiety arising therefrom is conceivable. The fact that the defendant showed no remorse after the incident and even asked to see X was nothing less than shameful. The defendant, with a view to smearing X and without having any regard for her feelings, gave instructions to his counsel with respect to the cross-examination of X during the trial. This can be said to be rubbing salt into her wounds.", "zh-HK": "18.此事令X受心理創傷，影響了她將來的發展。被告人沒有使用避孕套，令她擔心自己可能會懷孕，當中的焦慮，可想而知。事發之後，被告人毫無悔意，還邀約X見面，實在是厚顏無恥。審訊時被告人指示他的大律師向X盤問，意欲抹黑她，完全不考慮她的感受，可說是在她的傷口上撒鹽。" } }, { "doc_id": 93, "seg_id": 76, "translation": { "en": "19.For the factors given above, I find that this is an extremely serious case. Only a substantial period of incarceration can reflect its seriousness and exert a deterrent effect on the defendant and members of the public.", "zh-HK": "19.基於以上因素，本席認為本案案情極之嚴重，只有長期監禁才能反映它的嚴重性，對被告人及社會產生阻嚇作用。" } }, { "doc_id": 93, "seg_id": 77, "translation": { "en": "20.The appropriate starting point, in my view, is one of 4 years’ imprisonment. I do not see any mitigating factors. The defendant is sentenced to 4 years’ imprisonment.”", "zh-HK": "20.本席認為，適當的判刑起點是4年的監禁。本席看不到有任何可減刑的因素。被告人判監4年。」" } }, { "doc_id": 93, "seg_id": 78, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 93, "seg_id": 79, "translation": { "en": "As pointed out by the trial judge, the Court of Appeal stated in Chan Kwong Pui that there was no sentencing guideline for cases of this type and that this offence was created to protect underage girls; therefore, the age of the girl was an important sentencing factor. The age gap between the Applicant and Girl X in the present case was also an important consideration. There was a huge gap in age in that at the time of the incident, Girl X was only 13 years and 7 months old whereas the Applicant was 49.", "zh-HK": "正如原審法官指出，上訴庭在陳廣培(譯音)一案已經指出，這類案件並無判刑指引，而訂立罪行的目的是要保護未成年的少女，所以在判刑時，女童的年齡是一項重要的因素。本案申請人與女童 X的年齡差距亦是重要考慮的因素。事發時，女童 X祇得13 歲7 個月，而申請人已是49 歲，年齡相距非常大。" } }, { "doc_id": 93, "seg_id": 80, "translation": { "en": "While Mr. Khattak cited the facts and the sentences of the three cases above, we were of the view that the facts of Chung Yui Hung were more similar to those of the present case. In Chung Yui Hung, a teacher met a 12-year-old student through the internet. On the day of the offence, the teacher visited the girl’s home and had sex with her, the circumstances of which were extremely close to rape. The Court of Appeal considered that a starting point of 5 years’ imprisonment was appropriate.", "zh-HK": "雖然林‍大律師引述了上述三宗案例的案情及量刑，但本庭認為鍾銳洪(譯音)案件與本案的情節較為接近。鍾銳洪一案涉及一名教師透過互聯網認識了一名12 歲學生。案發當日，教師前往女童的住所與女童發生性行為，當時的情況幾乎等同強姦，上訴庭認為恰當的量刑基準是監禁5 年。" } }, { "doc_id": 93, "seg_id": 81, "translation": { "en": "In the light of the facts of the present case, 4 years’ imprisonment was by no means manifestly excessive.", "zh-HK": "以本案案情而言，4 年監禁絕非明顯過重。" } }, { "doc_id": 93, "seg_id": 82, "translation": { "en": "We would like to mention in passing that the Applicant initially sought a reduction in sentence by reason of his health condition. This ground of appeal was withdrawn by the Applicant in the course of this application.", "zh-HK": "本庭順帶一提，申請人原本以身體健康狀況為理由，要求減刑，但在進行申請時，申請人撤回該項上訴理由。" } }, { "doc_id": 93, "seg_id": 83, "translation": { "en": "For the reasons set out above, we dismissed the application for leave to appeal.", "zh-HK": "基於上述理由，本庭駁回上訴申請許可。" } }, { "doc_id": 93, "seg_id": 84, "translation": { "en": "Agnes Chan, Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent.", "zh-HK": "申請人：由法律援助署委派鄭氏律師行延聘林沙文大律師代表。" } }, { "doc_id": 93, "seg_id": 85, "translation": { "en": "S. K. Khattak, instructed by May Cheng & Co., assigned by Legal Aid Department, for the Applicant.", "zh-HK": "答辯人：由律政司助理刑事檢控專員陳詠嫻代表香港特別行政區。" } }, { "doc_id": 94, "seg_id": 1, "translation": { "en": "Hon Yeung Ag CJHC (giving the Judgment of the Court):", "zh-HK": "高等法院署理首席法官楊振權頒發上訴法庭判案書：" } }, { "doc_id": 94, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 94, "seg_id": 3, "translation": { "en": "The appellant, Cheung Ho Kit, was charged with one count of trafficking in dangerous drugs (the “trafficking” offence). He pleaded not guilty and stood trial in the District Court before HH Judge Lo.", "zh-HK": "上訴人（張浩傑）被控一項販運危險藥物罪（“販毒”罪）。他否認控罪，並在區域法院法官勞潔儀席前受審。" } }, { "doc_id": 94, "seg_id": 4, "translation": { "en": "On 23 May 2018, the appellant was found guilty and was sentenced to 6 years and 11 months’ imprisonment. Having been granted leave by a single Justice of Appeal, the appellant now applied by counsel, Mr Andy Hung and Mr Marco Li, for leave to appeal against conviction and/or sentence out of time.", "zh-HK": "2018年5月23日，上訴人被裁定罪名成立，並被判處入獄6年11個月。上訴人不服定罪及判刑，經上訴法庭單一法官批准後，現由孔慶碩和李煒鍵兩位大律師代表提出申請，要求獲准就定罪及/或判刑逾期上訴。" } }, { "doc_id": 94, "seg_id": 5, "translation": { "en": "Prosecution case and evidence", "zh-HK": "控方案情及證據" } }, { "doc_id": 94, "seg_id": 6, "translation": { "en": "The prosecution alleged that shortly before midnight on 21 June 2017, the appellant was stopped and searched outside No 16B Jordan Road because he was acting in a suspicious manner. Upon search, the police officer found the dangerous drugs involved in the case, namely 0.7 grammes of solid containing 0.43 grammes of cocaine and 23.9 grammes of a crystallised solid containing 9.96 grammes of the dangerous drug “ice” from the appellant’s backpack. The dangerous drugs were inside a marker pen.", "zh-HK": "控方指上訴人在2017年6月21日晚上近午夜時分，因形跡可疑而被警員在佐敦道16號B外截查。警員在上訴人的背包搜出涉案的毒品，即0.7克固體，內含0.43克可卡因及23.9克晶狀固體，內含9.96克“冰毒”。該些毒品是放在一支箱頭筆內。" } }, { "doc_id": 94, "seg_id": 7, "translation": { "en": "Under caution, the appellant admitted that the dangerous drugs involved were bought for his own consumption. The police officer alleged that the appellant agreed to attend a video interview conducted by the police in the absence of a lawyer. During the interview, the appellant said he was a casual cleaning worker earning $600 - $700 a day, but he could make only $4,000 – $5,000 a month. The appellant alleged that the day before the incident, he telephoned his friend Ken to purchase the dangerous drug “ice”. On the night of the incident, the appellant went to a park on Hillwood Road upon the instructions of Ken to buy the drugs involved at $4,000 from an Indian/Pakistani man. The appellant alleged that when he was stopped and searched by the police, he was about to walk along Hillwood Road towards Nathan Road in order to take bus no 118 home. The appellant alleged that he had taken the dangerous drug “ice” for 6 years.", "zh-HK": "警誡下，上訴人承認購買涉案毒品作自用。警員指上訴人同意在無需律師陪同下和警員進行錄影會面。會面期間，上訴人表示自己任職清潔散工，日薪600-700元，但每月只可賺取4,000-5,000元。上訴人指案發前一天以電話聯絡朋友Ken購買“冰毒”，而案發當天晚上按Ken的指示前往山林道的公園，並以4,000元從一名印巴籍男子購買涉案毒品。上訴人指被警員截查時，他正打算沿山林道步行前往彌敦道乘坐118號巴士回家。上訴人指自己吸食“冰毒”已有6年。" } }, { "doc_id": 94, "seg_id": 8, "translation": { "en": "The police officer who arrested and cautioned the appellant confirmed the course of the arrest of the appellant and pointed out that what the appellant had said under caution at the scene had been recorded in his notebook. Later, he also made a post-record of what happened at the scene including what was said by the appellant. The police officer pointed out that the appellant not only had signed to confirm that the post-record was correct, he also made the declaration in the notebook as instructed and signed in confirmation.", "zh-HK": "拘捕及警誡上訴人的警員確認拘捕上訴人的經過，並指出在現場有將上訴人在警誡下的說話記錄在其記事冊內，而事後亦有將現場的案發經過，包括上訴人說過的話作出補錄。該名警員指出上訴人不但有簽名確認補錄內容正確，更有按指示在記事冊內寫下聲明並簽名作實。" } }, { "doc_id": 94, "seg_id": 9, "translation": { "en": "The appellant was taken back to his residence in Chai Wan by the police for a house search once but nothing was found. The police alleged that when they handled the appellant during the detention process, he indicated that he understood and he made no requests or complaints.", "zh-HK": "上訴人曾被警員帶返其柴灣的居所搜查，但沒有任何發現。有警員表示在處理上訴人被羈留的過程中，上訴人表示明白，但沒有要求，亦沒有投訴。" } }, { "doc_id": 94, "seg_id": 10, "translation": { "en": "The prosecution and defence agreed that the dangerous drug “ice” involved (23.9 grammes of mixture, $343 per gramme) was valued at HK$8,198.00, while the cocaine involved (0.7 grammes of mixture, $847 per gramme) was valued at HK$593.", "zh-HK": "控辯雙方同意涉案“冰毒”（23.9克混合劑，每克343元）價值為港幣8,198元，而涉案可卡因（0.7克混合劑，每克847元）價值為港幣593元。" } }, { "doc_id": 94, "seg_id": 11, "translation": { "en": "Both parties also agreed that according to the expert opinion of Dr Mak Kai Lok, the average daily consumption of the dangerous drug “ice” per addict was 0.3 grammes, while the average daily consumption of cocaine per addict was 0.2 grammes. Therefore, 0.43 grammes of cocaine would last for 2.15 days, while 9.96 grammes of the dangerous drug “ice” would last for 33.2 days.", "zh-HK": "雙方亦同意根據專家麥棨諾醫生的意見，吸食“冰毒”的人的每日平均使用量為0.3克，吸食可卡因的人的每日平均使用量為0.2克。因此0.43克可卡因足以使用2.15天，而9.96克“冰毒”則足以使用33.2天。" } }, { "doc_id": 94, "seg_id": 12, "translation": { "en": "Defence’s position and evidence", "zh-HK": "辯方立場及證據" } }, { "doc_id": 94, "seg_id": 13, "translation": { "en": "The defence case was a total denial of the accusations of the prosecution. The defence alleged that the appellant did not know why the marker pen containing the dangerous drugs involved was inside his backpack. The defence pointed out that as the appellant had a hearing impairment, he could not hear the police officer arrest and caution him for the offence of “trafficking in dangerous drugs”.", "zh-HK": "辯方全盤否認控方的指控。辯方指上訴人不知道為何其背包會有涉案載有毒品的箱頭筆。辯方指上訴人弱聽，故聽不到警員以“販毒”罪名拘捕和警誡他。" } }, { "doc_id": 94, "seg_id": 14, "translation": { "en": "The defence also denied that the appellant had made any confession. The defence said the signatures in the police notebook were not appended by the appellant and the police officer had never explained the contents concerned to the appellant.", "zh-HK": "辯方亦否認上訴人有作出過任何招認。辯方指警員記事冊內的簽名不是由上訴人簽署的，而警員亦沒有向上訴人解釋有關內容。" } }, { "doc_id": 94, "seg_id": 15, "translation": { "en": "The defence alleged that the police threatened the appellant during the house search, and offered him cigarettes to induce him to read out the written statements during the video interview. The defence even said the police had indicated to the appellant that if he confessed, he would only be charged with “possession of dangerous drugs” instead of “trafficking in dangerous drugs”, and gave him instructions at the same time on how to answer the questions during the video interview.", "zh-HK": "辯方指警員曾在搜查上訴人的居所期間威嚇上訴人，亦有以請他食煙來誘使他在錄影會面時讀出已寫下的事項。辯方更指警員有向上訴人表示如他承認，則只會控告他“藏毒”，而非“販毒”，並同時指示他在錄影會面時如何回答問題。" } }, { "doc_id": 94, "seg_id": 16, "translation": { "en": "The defence said the appellant was unaware of his right to refuse a video interview or to engage a lawyer to represent him. Regarding his replies during the video interview, some of them were given according to the instructions of the police, and others were given according to the contents of the police notebook.", "zh-HK": "辯方指上訴人不知道有權不參與錄影會面或聘請律師代表他，而他在錄影會面時的回應，部分是按警員給他的指示，部分是按警員記事冊的內容作出。" } }, { "doc_id": 94, "seg_id": 17, "translation": { "en": "When giving evidence on the special issue, the appellant had set out his background. He said at the time in question, he had made arrangements to give some clothes to his friend, Miss Chan, but he was intercepted by the police when he was on his way to meet her. The appellant said at that time he was holding a plastic bag containing clothes, but the marker pen concerned did not belong to him. He did not know why the marker pen was found in the exterior side pocket of his backpack.", "zh-HK": "在特別事項作供時，上訴人有列出自己的背景。他指案發時約了朋友陳小姐將衣服拿給她，但途中被警員截停。上訴人指當時他手持的膠袋內有衣服，而涉案的箱頭筆不是他的，他表示不知悉為何該支箱頭筆會在他的背包外側袋出現。" } }, { "doc_id": 94, "seg_id": 18, "translation": { "en": "The appellant alleged that he had a hearing impairment, and therefore could not hear what the police officer said when he was arrested and cautioned. He stressed that he had never admitted that the dangerous drug “ice” inside the marker pen was for his own use. He also had never signed the statement concerned in the notebook. He had reservations about the authenticity of his signatures in the notebook.", "zh-HK": "上訴人指自己弱聽，故不能聽到警員拘捕和警誡他時的說話。他力稱沒有承認過箱頭筆內的“冰毒”是他作自用，亦沒有簽署過記事冊內有關的表述。他對記事冊內所顯示他的簽名的真確性有保留。" } }, { "doc_id": 94, "seg_id": 19, "translation": { "en": "The appellant also described to the court how he was threatened, forced and induced by the police.", "zh-HK": "上訴人亦有就他指遭警員威逼利誘的過程向法庭表述。" } }, { "doc_id": 94, "seg_id": 20, "translation": { "en": "The trial process", "zh-HK": "審訊過程" } }, { "doc_id": 94, "seg_id": 21, "translation": { "en": "The trial commenced on 1 March 2018. The appellant was then represented by Mr Lawrence T H Law, counsel instructed by the solicitors assigned by the Legal Aid Department (the LAD). On the third day of the trial, i.e. 5 March 2018, when the appellant gave evidence on the special issue and was cross-examined by the prosecution, the appellant expressed discontent with the legal team provided by the LAD and requested a replacement. In the end, the case was adjourned to 13 March 2018 for mention.", "zh-HK": "審訊在2018年3月1日開始，當時上訴人是由法律援助署（法援署）委派的律師事務所轉聘羅達雄大律師代表。當審訊進行到第三天，即2018年3月5日，而當上訴人正在就特別事項作供及被控方盤問時，上訴人表示不滿意法援署提供給他的律師團隊，且要求更換。結果，審訊押後至2018年3月13日進行提訊。" } }, { "doc_id": 94, "seg_id": 22, "translation": { "en": "On the day of mention, a new legal team including counsel, Mr James YK Tse, was assigned by the LAD. They told the court that they would take instructions from the appellant after he had finished his evidence on the special issue. The appellant continued to be cross-examined on the special issue. Meanwhile, the appellant indicated that the person appearing in the video interview might not necessarily be him.", "zh-HK": "在提訊當天，由法援署委派代表上訴人的新律師團隊，包括謝英權大律師。他們向法庭表示會等候上訴人完成特別事項的作供後才向他提取指示，上訴人就特別事項繼續接受盤問，期間上訴人表示有關錄影會面記錄出現的人不一定是他。" } }, { "doc_id": 94, "seg_id": 23, "translation": { "en": "Upon the completion of the defence case on the special issue, Mr Tse told the court that the appellant had reservations about the authenticity of the Legal Aid Certificate and asked the LAD for clarification. The trial judge made it clear to the appellant that further delay of the case would not be allowed. In the end, the appellant indicated that he was willing to accept the new legal team including Mr Tse as his legal representatives.", "zh-HK": "當辯方完成特別事項的案情後，謝大律師向法庭表示上訴人對法援署證書的真實性有懷疑，並要求向法援署澄清。原審法官向上訴人表明案件不容再拖延。結果上訴人表示願意接受新的律師團隊，包括謝大律師代表他。" } }, { "doc_id": 94, "seg_id": 24, "translation": { "en": "In respect of the special issue, Mr Tse made submissions to the court to challenge the admissibility of the confession of the appellant. However, in the end, the trial judge found that the appellant’s confession was made voluntarily and it was admitted as prosecution evidence. Mr Tse accepted that there was sufficient prima facie evidence, therefore he did not make any halfway submissions.", "zh-HK": "謝大律師就特別事項向法庭作出陳述，並反對法庭採納上訴人的“招認”為證。但原審法官最終裁定上訴人的“招認”是自願作出，故接納該些招認為控方證據。謝大律師接納有足夠表面證據，故沒有作出中段陳詞。" } }, { "doc_id": 94, "seg_id": 25, "translation": { "en": "On 6 April 2018, i.e. the 5th day of the trial, the appellant decided to refuse the legal representatives assigned to him by the LAD and he indicated that he would act in person. The appellant confirmed that he had received all the documents and he was ready to act in person.", "zh-HK": "2018年4月6日，即審訊的第五天，上訴人決定取消法援署委派的律師團隊代表他，並表示會親自行事。上訴人確認已收到所有文件，亦準備好作自辯。" } }, { "doc_id": 94, "seg_id": 26, "translation": { "en": "In the end, the trial judge found that there was a prima facie case against the appellant and she explained his rights to him . The appellant elected not to give evidence or call any witnesses.", "zh-HK": "結果，原審法官裁定針對上訴人控罪的表面證據成立後，向上訴人解釋其權利。上訴人選擇不作供，亦不傳召任何證人。" } }, { "doc_id": 94, "seg_id": 27, "translation": { "en": "After that, counsel for the prosecution made a closing speech before the trial judge. Prosecution counsel only repeated the prosecution evidence including the course of the arrest of the appellant by the police and the appellant’s “confession”. Prosecution counsel pointed out that neither dangerous drugs nor smoking paraphernalia was found during the search of the appellant’s residence, and he also stressed that the appellant appeared to be “in good fettle, natural and fluent” during the video interview conducted by the police. Prosecution counsel stressed that the total market value of the dangerous drugs involved was more than two times his monthly income.", "zh-HK": "其後，代表控方的大律師向原審法官作出結案陳詞。控方大律師只是覆述控方的證據，包括警員拘捕上訴人的經過及上訴人的“招認”。控方大律師指出搜查上訴人的居所時沒有發現任何毒品或吸食工具，亦強調上訴人和警員進行錄影會面時的表現“有精神，自然流暢”。控方大律師強調涉案毒品的總巿值是上訴人的月薪兩倍以上。" } }, { "doc_id": 94, "seg_id": 28, "translation": { "en": "Prosecution counsel reiterated the prosecution’s position that the appellant was in possession of dangerous drugs for the purpose of “trafficking” and urged the court to find him guilty of the charge of “trafficking in dangerous drugs”.", "zh-HK": "控方大律師重申其立場，即上訴人管有涉案毒品是作“販運”用，並懇請原審法官裁定上訴人“販毒”罪罪成。" } }, { "doc_id": 94, "seg_id": 29, "translation": { "en": "The appellant submitted in his closing speech that he was unemployed and the drugs involved did not belong to him. He also said he would not put valuable dangerous drugs in the exterior side pocket of his backpack. The appellant stressed that he could not hear any caution administered by the police officer and did not notice the police searching his backpack. He even questioned how the police knew about the dangerous drugs inside the marker pen.", "zh-HK": "上訴人在結案陳詞時表示自己沒有工作，而涉案毒品並非是他的。上訴人亦指他不會將值錢的毒品放在背包的外側袋。上訴人強調他聽不到警員有警誡，亦沒有留意警員搜查他的背包的過程，更質疑為何警員會知道箱頭筆內有毒品。" } }, { "doc_id": 94, "seg_id": 30, "translation": { "en": "Findings of the trial judge", "zh-HK": "原審法官的裁決" } }, { "doc_id": 94, "seg_id": 31, "translation": { "en": "The trial judge found that the appellant had made the oral “admission” and voluntarily signed the notebook containing the post-recorded “admission” to confirm its contents. The trial judge also found that the appellant had attended the video interview voluntarily.", "zh-HK": "原審法官裁定上訴人有作出過口頭“招認”，亦有自願在補錄其“招認”的記事冊上簽名確認其內容。原審法官亦裁定上訴人自願參與錄影會面。" } }, { "doc_id": 94, "seg_id": 32, "translation": { "en": "The trial judge was of the view that the prosecution witnesses were honest and reliable. Based on their evidence, she made the following findings:", "zh-HK": "原審法官認定控方證人都是誠實可靠的證人，並根據他們的證供裁定：" } }, { "doc_id": 94, "seg_id": 33, "translation": { "en": "The marker pen concerned was found inside the left side pocket of the appellant’s backpack, and the pen contained the dangerous drugs involved;", "zh-HK": "涉案的箱頭筆在上訴人揹着的背包左側袋內找到，而筆內載有涉案的毒品；" } }, { "doc_id": 94, "seg_id": 34, "translation": { "en": "The appellant admitted under caution that the dangerous drugs were for his own consumption;", "zh-HK": "上訴人在警誡下承認毒品是作自用；" } }, { "doc_id": 94, "seg_id": 35, "translation": { "en": "The appellant voluntarily signed the police notebook with the post-record about the arrest; and", "zh-HK": "上訴人自願在警員補錄拘捕過程的記事冊內簽名；及" } }, { "doc_id": 94, "seg_id": 36, "translation": { "en": "The appellant voluntarily attended the video interview.", "zh-HK": "上訴人自願參與錄影會面。" } }, { "doc_id": 94, "seg_id": 37, "translation": { "en": "The trial judge pointed out that according to the expert evidence agreed by both parties, the dangerous drug “ice” involved would last for 33.2 days, while the cocaine would last for 2.15 days. The trial judge stressed that the total retail value of the drugs involved was HK$8,791. It was impossible for the appellant to buy the drugs at $4,000 and it was even more impossible to get the cocaine at the same time.", "zh-HK": "原審法官指出根據雙方同意的專家證人證供，涉案的“冰毒”足夠33.2天使用，而可卡因則足夠2.15天使用。原審法官強調涉案毒品的零售總值是港幣8,791元，而上訴人不可能以4,000元購買該些毒品，更不可能同時取得可卡因。" } }, { "doc_id": 94, "seg_id": 38, "translation": { "en": "The trial judge was also of the view that the appellant, with regard to his income, could not afford the dangerous drugs involved. Taking into account factors such as the quantity and types of the dangerous drugs, other items found by the police upon search, the value of the dangerous drugs, the appellant’s income, as well as the time and place of the arrest of the appellant, the trial judge drew the inference that the appellant was in possession of the dangerous drugs for the purpose of trafficking. Hence, the trial judge found the appellant guilty as charged.", "zh-HK": "原審法官亦認為以上訴人的收入，他不能負擔涉案的毒品。原審法官考慮到毒品的數量、品種、警員搜獲的其他物品、毒品的價值、上訴人的收入及上訴人被拘捕的時間和地點等因素，推論上訴人管有涉案的毒品是作販運用。因此，原審法官裁定上訴人罪名成立。" } }, { "doc_id": 94, "seg_id": 39, "translation": { "en": "In paragraph 112 of the Reasons for Verdict, the trial judge stated as follows：", "zh-HK": "原審法官在其裁決理由書第112段有以下表述：" } }, { "doc_id": 94, "seg_id": 40, "translation": { "en": "“In addition, as the defence did not give evidence on the general issue, the prosecution should not make any closing speech. As a professional judge in this case, I would discard the brief prosecution closing speech entirely and exclud it from consideration. Hence, no injustice would be done to the defendant.”", "zh-HK": "“另由於辯方未有在一般事項作供，控方不應作結案陳詞，故在此案中，作為專業的法官本席完全摒棄控方簡短的結案陳詞，不作任何的考慮，故不應對被告導致任何不公。”" } }, { "doc_id": 94, "seg_id": 41, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 94, "seg_id": 42, "translation": { "en": "Mr Hung, counsel representing the appellant, put forward three grounds of appeal. He said the fact that the trial judge had allowed the prosecution to make a closing speech when the unrepresented appellant did not give evidence was a material irregularity and rendered the trial unfair.", "zh-HK": "代表上訴人的孔大律師提出三點上訴理由。他指原審法官在上訴人沒有律師代表，亦沒有作供的情況下，容許控方作結案陳詞，構成重大不當，令審訊不公。" } }, { "doc_id": 94, "seg_id": 43, "translation": { "en": "Mr Hung also pointed out that the other expert evidence from the prosecution after completion of the trial was very much contradictory to the facts agreed by both parties during the trial, which also rendered the trial unfair and the conviction unsafe. Mr Hung asked the court to admit fresh evidence to strengthen his position. In the appellant’s notice of motion, he asked the court to admit fresh evidence including five reports prepared by four doctors, but in the end Mr Hung only asked this court to admit the report prepared by Dr Lam Ming on 4 July 2018, and the relevant part of the report was:", "zh-HK": "孔大律師亦指控方在審訊後出現的其他專家證據和原審時控辯雙方同意的案情有重大矛盾，亦導致審訊不公及定罪不穩妥。孔大律師要求法庭採納一些新證據來強化他的立場。在其動議通知書，上訴人要求法庭採納的新證據有四名醫生撰寫的五份報告，但孔大律師最終只要求本庭採納林明醫生在2018年7月4日撰寫的報告，該報告的有關內容為：" } }, { "doc_id": 94, "seg_id": 44, "translation": { "en": "Mr Hung was of the view that if the trial judge had had the chance to consider the fresh evidence, she might not necessarily have drawn the inference that the appellant was in possession of the dangerous drugs for the purpose of trafficking.", "zh-HK": "孔大律師認為如原審法官有機會考慮該些新證據，她不一定會推論上訴人管有涉案毒品作販運用途。" } }, { "doc_id": 94, "seg_id": 45, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 94, "seg_id": 46, "translation": { "en": "In a criminal trial, if an unrepresented defendant acts in person, the usual convention is that the prosecution has no right to make a closing speech on the facts because there is a difference in the ability to express oneself between a prosecution counsel who has received professional training and an unrepresented defendant. The speech by a professionally trained counsel will clearly be more convincing than that by an unrepresented defendant. One of the possible ways to redress this considerable imbalance in ability and to ensure that the defendant receives a fair trial is to forbid the prosecution from make a closing speech. However, prosecution counsel is allowed to make a closing speech to the court on the law. (see HKSAR v Zhuo Yaying [2016] 3 HKLRD 916).", "zh-HK": "在刑事案件審訊中，如一名被告人沒有律師代表，親自行事，一般的慣例是控方無權就事實作出結案陳詞，原因是有專業訓練的檢控律師和一名無律師代表的被告人的表達能力有分別。受過專業訓練的律師的陳述較無律師代表的被告人的陳述必然較具說服力。為了平衡這種強弱懸殊的現象，及確保審訊公平，可能的方法之一是不讓控方向法庭作出結案陳詞，但控方律師是可以就法律議題向法庭作出結案陳詞（見香港特別行政區訴卓亞營 [2016] 3 HKLRD 916案）。" } }, { "doc_id": 94, "seg_id": 47, "translation": { "en": "The Court of Appeal confirmed the aforesaid principle in HKSAR v Tso Kin Shing [2014] 3 HKLRD 721. In paragraph 5.7 of the judgment, the Court of Appeal stated clearly that:", "zh-HK": "上訴法庭在香港特別行政區訴曹建成 [2014] 3 HKLRD 721案確認上述原則。上訴法庭在其判案書第5.7段表明：" } }, { "doc_id": 94, "seg_id": 48, "translation": { "en": "“The prosecution has the right to make a closing speech when a legally represented defendant has himself given evidence but has not called any other witness.  However, where a defendant is not legally represented and calls no witnesses, then even though he gives evidence for himself, the prosecution is not entitled to make a closing speech.”", "zh-HK": "“一名有律師代表的被告人，在他自己作證但沒有傳召其他證人的情況下，控方是有權作出結案陳詞，但一名沒有律師代表的被告人就算作證自辯，但沒有傳召證人，控方是無權作出結案陳詞。”" } }, { "doc_id": 94, "seg_id": 49, "translation": { "en": "In fact, the Court of Appeal made the same ruling in 1980 in the case R v Man Ching Ip & Others [1980] HKLR 890. At that time, the Court of Appeal made it clear that:", "zh-HK": "事實上，上訴法庭在1980年在R v Man Ching Ip & Others [1980] HKLR 890案已作出過相同裁決。上訴法庭當時表明：" } }, { "doc_id": 94, "seg_id": 50, "translation": { "en": "The aforesaid principle applies not only to criminal trials by jury in the High Court, but also criminal trials by a judge sitting alone in the District Court (see Zhuo Yaying and HKSAR v Leung Chun Kit Brandon (2018) 21 HKCFAR 298, para 43 of the judgment).", "zh-HK": "上述原則不單適用於高等法院涉及陪審團的刑事案件審訊，亦適用於區域法院由單一法官審理的刑事案件（見卓亞營案及HKSAR v Leung Chun Kit Brandon (2018) 21 HKCFAR 298判案書第43段）。" } }, { "doc_id": 94, "seg_id": 51, "translation": { "en": "Hence, the fact that the trial judge allowed the prosecution to make a closing speech was an irregularity. While the trial judge had made it clear that she would not take into account the prosecution’s closing speech, that was not sufficient to cure such irregularity.", "zh-HK": "因此，原審法官容許控方作出結案陳詞的做法是不合規則。原審法官表明她對控方的結案陳詞不作任何考慮，不足以糾正該不合規則的做法。" } }, { "doc_id": 94, "seg_id": 52, "translation": { "en": "However, the aforesaid irregularity does not mean that the Court of Appeal must quash the appellant’s conviction. In Tso Kin Shing, the Court of Appeal after taking into account the cases of R v Paul [2013] 2 Cr App R 282 and R v Pink (Ronald) [1971] 1 QB 508 held that:", "zh-HK": "但上述不合規則的做法不表示上訴法庭必須撤銷針對上訴人的有罪裁決。上訴法庭在曹建成案經考慮R v Paul [2013] 2 Cr App R 282案及R v Pink (Ronald) [1971] 1 QB 508案後作出以下裁決：" } }, { "doc_id": 94, "seg_id": 53, "translation": { "en": "“Generally speaking, non-compliance of this principle will result in the conviction being quashed.  That said, the court does not take a mechanical approach and will still have to consider whether to apply the proviso by considering whether any miscarriage of justice has occurred in the case.”", "zh-HK": "“一般來說若果這個原則沒有被遵從，法庭是會撤銷定罪，但同時由於法庭並不是機械式地審案，法庭仍須考慮但書，審查案件實際上是沒有出現司法不公的情況。”" } }, { "doc_id": 94, "seg_id": 54, "translation": { "en": "In R v Cojan [2015] 2 Cr App R 20, Hallett LJ made the following analysis in respect of the issue in paragraph 12 of the judgment:", "zh-HK": "在R v Cojan [2015] 2 Cr App R 20案，Hallett LJ法官在判案書第12段就有關議題有以下分析：" } }, { "doc_id": 94, "seg_id": 55, "translation": { "en": "In R v Stovell [2006] EWCA Crim 27, the Court of Appeal expressed reservations as to whether non-compliance with the principle would result in the conviction being quashed. In paragraph 36 of the judgment, Rose LJ said:", "zh-HK": "上訴法庭在R v Stovell [2006] EWCA Crim 27案對違反有關原則是否必然導致一個定罪裁決必須撤銷有保留。Rose LJ在判案書第36段表示：" } }, { "doc_id": 94, "seg_id": 56, "translation": { "en": "In Leung Chun Kit Brandon, the Court of Final Appeal was concerned about the defendant’s abuse of the rule by discharging his legal representatives. The Court also made it clear that although non-compliance with the rule by the prosecution making a closing speech when the defendant was unrepresented constituted a material irregularity, it would not necessarily result in the quashing of the conviction (see paras 69 and 74 of the judgment).", "zh-HK": "終審法院在Leung Chun Kit Brandon案對被告人以取消其法律代表方式來濫用有關規則表示關注，亦表明在被告人沒有律師代表下，控方不應作出結案陳詞這規則被違反構成重大不當，這不表示有關的定罪裁決必須撤銷（見判案書第69及74段）。" } }, { "doc_id": 94, "seg_id": 57, "translation": { "en": "In this case, the defendant had been legally represented throughout the prosecution case. The defendant’s position was that he did not know why the dangerous drugs involved were found in the exterior side pocket of his backpack. He said he had never made any admission. What the police officer said in relation to the course of his arrest and admission made by him was a fabrication. He even said the suspect in the video interview was not him.", "zh-HK": "在本案的整個控方舉證過程中，上訴人都有律師代表，上訴人的立場是他不知悉涉案毒品為何會在他的背包外側袋出現，他亦指他沒有作出過任何招認，而警員就拘捕他的過程和指他作出招認的說法都是虛構的。他更指錄影會面記錄所顯示的疑人並非是他。" } }, { "doc_id": 94, "seg_id": 58, "translation": { "en": "The appellant gave evidence in the special issue hearing. Guided by his counsel, the appellant set out his position and how he was arrested and handled by the police in detail. Counsel for the appellant also presented to the court the grounds of objection to the admissibility of the appellant’s confession as evidence.", "zh-HK": "上訴人有在特別事項聆訊過程中作供。在大律師引導下，上訴人有詳細列出他的立場及警員拘捕他和處理他的過程。上訴人的代表大律師亦有向法庭提出他反對上訴人的招認為證的理據。" } }, { "doc_id": 94, "seg_id": 59, "translation": { "en": "Only after counsel for the appellant had made submissions and admitted that there was sufficient prima facie evidence, the appellant decided to act in person.", "zh-HK": "上訴人是在其代表大律師作出陳述及接納有足夠表面證據後才決定親自行事。" } }, { "doc_id": 94, "seg_id": 60, "translation": { "en": "In fact, when prosecution counsel made his closing speech to the court, he only set out briefly the prosecution case and evidence. Prosecution counsel stressed that the appellant appeared to be in good fettle during the video interview and his speech was natural and fluent. Prosecution counsel also pointed out to the trial judge that no paraphernalia for smoking dangerous drugs was found in the appellant’s residence. Given his financial status, the appellant was in possession of the dangerous drugs for the purpose of trafficking. It was submitted in the prosecution’s closing speech that any reasonable and right-minded person would not find this difficult to imagine.", "zh-HK": "事實上，控方大律師向法庭作出結案陳詞時，只是簡單列出控方證據及說法。控方大律師有強調上訴人在錄影會面時的表現是有精神，說話自然流暢。控方大律師亦有向原審法官指出以上訴人的居所沒有任何吸毒工具，及以他的經濟狀況而言，上訴人管有涉案毒品是作販運用。控方的結案陳詞內容是任何合理及思想正常的人都不難想像到的。" } }, { "doc_id": 94, "seg_id": 61, "translation": { "en": "The facts of the present case were very simple. First, the trial judge had to decide whether the dangerous drugs involved were found on searching the appellant’s backpack. If the said dangerous drugs were in the appellant’s possession, the question was whether he was in possession of the dangerous drugs for the purpose of trafficking.", "zh-HK": "本案的案情十分簡單。原審法官先要決定涉案毒品是否從上訴人的背包搜出，及如涉案毒品是在上訴人的管有下，他是否管有該些毒品作販運用。" } }, { "doc_id": 94, "seg_id": 62, "translation": { "en": "We should point out that the appellant’s allegation of the set-up by the police officers with evidence planted on him was not supported by objective evidence. His allegation of the police forging his signatures in the police notebook and using threats, inducement and force to extort a false confession from him was not convincing at all. Mr Hung raised some points that might be favourable to the appellant, and they were matters that the trial judge must have known.", "zh-HK": "本庭應指出上訴人指警員插贓嫁禍的說法沒有任何客觀證據支持。他指警員在記事冊冒簽他的簽名，及威逼利誘，要他作出虛假的招認亦不具任何說服力。孔大律師提出可能對上訴人有利的說法，原審法官亦必然知悉。" } }, { "doc_id": 94, "seg_id": 63, "translation": { "en": "In our view, the trial process, the issues in the case and the closing speech made by the prosecution counsel would not cause any miscarriage of justice or render the conviction of the appellant unsafe.", "zh-HK": "本庭認為以本案的審訊過程、案件的爭議及控方大律師作出的結案陳詞而言，是不會導致司法不公，更不會影響針對上訴人的定罪裁決的穩妥性。" } }, { "doc_id": 94, "seg_id": 64, "translation": { "en": "Dr Mak’s evidence regarding the average daily consumption of cocaine and the dangerous drug “ice” by an abuser was admitted by the prosecution and defence. According to section 65C of the Criminal Procedure Ordinance, Cap 221 of the Laws of Hong Kong, it was “conclusive evidence”.", "zh-HK": "麥醫生指吸食可卡因和“冰毒”者的每日平均使用量的證言是控辯雙方同意的事實，而根據香港法例第221章《刑事訴訟程序條例》第65C條，該些雙方同意的事實是“不可推翻的證據”。" } }, { "doc_id": 94, "seg_id": 65, "translation": { "en": "Different experts, relying on factors such as the background, number of years of drug taking, and social environment of different drug addicts, may have different views on the average daily consumption by an addict. According to the information provided by Mr Hung, there was expert opinion that the daily consumption a chronic abuser of the dangerous drug “ice” was 0.25 to 1 gramme; while the average daily consumption of a new user was 0.05 to 0.1 grammes, and the average daily consumption of a regular user was 0.1 to 0.5 grammes. There was other expert opinion that according to a study in China, the daily consumption of the dangerous drug “ice” by an abuser was 0.1 to 2 grammes, while the average daily consumption was 0.13 grammes.", "zh-HK": "不同專家根據不同吸毒者的背景、吸毒年資、社會環境等因素對吸毒者的每日平均使用量可能會有分別。孔大律師提供的資料顯示，有專家認為一名長期濫藥者的每天“冰毒”服用量是0.25克至1克；而新的使用者的每日平均使用劑量是0.05克至0.1克及定期使用者的每日平均使用量為0.1克至0.5克；亦有專家根據在中國做的調查，濫藥者的每天“冰毒”使用量是0.1克至2克，而每日平均使用量是0.13克。" } }, { "doc_id": 94, "seg_id": 66, "translation": { "en": "The fresh evidence that Mr Hung asked the court to admit was limited to the report of Dr Lam Ming dated 4 July 2018. In the report by Dr Lam dated 25 April 2013, it was stated that chronic abusers of the dangerous drug “ice” commonly used ¼ to one stroke (i.e. 250 mg to 1 gramme a day). However, in his report dated 4 July 2018, i.e. the fresh evidence that Mr Hung asked the court to admit, it was stated that chronic abusers of the dangerous drug “ice” commonly used ¼ to two strokes (i.e. 250 mg to 2 grammes a day). Dr Lam did not explain in his report the basis or grounds for changing his position.", "zh-HK": "孔大律師要求本庭採納的新證據局限在林明醫生日期為2018年7月4日撰寫的報告。林醫生在2013年4月25日撰寫的報告指長期吸食“冰毒”的人士一般會服用1/4至1劑的分量（即每日250毫克至1克）。但他在2018年7月4日撰寫的報告（即孔大律師要求本庭採納的新證據則指長期吸食“冰毒”的人士一般會服用1/4至兩劑的分量（即每日250毫克至2克）。林醫生在報告中並沒有解釋他改變立場的基礎或理據。" } }, { "doc_id": 94, "seg_id": 67, "translation": { "en": "Furthermore, based on the views of Dr Mak, both parties admitted that the average daily consumption of an abuser of the dangerous drug “ice” was 0.3 grammes. Where the average daily consumption was 0.3 grammes, it meant that some abusers would consume more than 0.3 grammes, while other abusers would consume less. During the trial, both prosecution and defence were concerned about the average consumption of abusers, rather than the level above or below, or the dosages for “chronic”, “experienced” abusers or other abusers who had particularly strong tolerance.", "zh-HK": "再者，雙方根據麥醫生的意見而作出同意的事實是吸食“冰毒”的人的每日平均使用量為0.3克。平均使用量是0.3克，表明有些人的使用量較0.3克為多，有些人為少。原審時，控辯雙方關注的事項是吸毒者的平均使用量，而非較多或較少的使用量，更非是某些“長期”、“資深”或耐藥性特強的吸毒者服用毒品的劑量。" } }, { "doc_id": 94, "seg_id": 68, "translation": { "en": "If the expert reports from the doctors were read properly, one would find the contents of the reports and the facts admitted by both parties are not in conflict.", "zh-HK": "若有適當地理解有關的醫生專家報告，其內容和控辯雙方同意的事實根本沒有衝突。" } }, { "doc_id": 94, "seg_id": 69, "translation": { "en": "If the position of the appellant was that he was a chronic or experienced drug addict whose daily consumption of the dangerous drug “ice” far exceeded the average daily amount of 0.3 grammes as agreed by him, he should have called evidence to support his position. In fact, since the appellant elected not to give evidence on the general issue, there was no admissible evidence showing that he was a drug addict, let alone a “chronic” or “experienced” drug addict. The appellant indicated during the video interview that he had consumed the dangerous drug “ice” for six years, but that was insufficient to prove that he was a chronic, experienced drug addict who had a strong tolerance and therefore his daily consumption of drugs could be as much as 2 grammes.", "zh-HK": "假若上訴人的立場是他是一名長期或資深的吸毒者，其每天吸食“冰毒”的分量遠超他同意的每天平均0.3克，他理應傳召證據支持其立場。事實上，上訴人在一般事項選擇不作供，因此沒有可採納的證據支持上訴人是一名吸毒者，更遑論是一名“長期”或“資深”的吸毒者。上訴人在錄影會面時表示自己吸食“冰毒”已有6年，亦不足以證明他是一名長期、資深或耐藥性強的吸毒者，故每天服用毒品的劑量可高達2克。" } }, { "doc_id": 94, "seg_id": 70, "translation": { "en": "We agree with the position of Mr Simon CY Kwong, SPP, representing the respondent. The fresh evidence the appellant asked the court to admit was neither relevant to the present case nor in conflict with the facts admitted by the prosecution and defence.", "zh-HK": "本庭認同答辯人代表江祖胤高級檢控官的立場。上訴人要求本庭採納的新證據和本案無關，亦和控辯雙方同意的事實沒有衝突。" } }, { "doc_id": 94, "seg_id": 71, "translation": { "en": "The appellant’s application asking the court to admit fresh evidence fails to satisfy the conditions laid down by the Court of Final Appeal in Mohammad Mahabobur Rahman v HKSAR (2010) 13 HKCFAR 20. Accordingly, we dismiss the appellant’s application to adduce fresh evidence and find that the grounds of appeal related to the issue cannot be sustained.", "zh-HK": "上訴人要求本庭採納新證據的申請，並不符合終審法院在Mohammad Mahabobur Rahman v HKSAR (2010) 13 HKCFAR 20案定下法庭採納新證據須符合的條件。因此，本庭駁回上訴人提出的呈交新證據的申請，並同時裁定和該議題有關的上訴理據不成立。" } }, { "doc_id": 94, "seg_id": 72, "translation": { "en": "The appellant admitted that he was earning $4,000 to $5,000 a month. He should not be able to afford the dangerous drugs involved worth over $8,000. He was living in Chai Wan but he was on a street in Tsim Sha Tsui at midnight. Having regard to factors such as the appellant’s means, the value of the dangerous drugs involved, the fact that the appellant was in possession of the dangerous drug “ice” and a small quantity of cocaine at the same time, and the time and place of the appellant’s arrest, plus the fact that the appellant had neither given evidence nor called witnesses to explain, overturn or rebut the allegations of the prosecution, we are of the view that the trial judge was entitled to draw the inference that the appellant was in possession of the dangerous drugs concerned for the purpose of trafficking.", "zh-HK": "上訴人承認自己每月收入4,000-5,000元。他理應不能負擔價值超過8,000元的涉案毒品。他居住柴灣，卻在午夜時分在尖沙咀街頭出現。本庭亦認為以上訴人的經濟狀況、涉案毒品的價值、上訴人同時管有“冰毒”和少量“可卡因”、上訴人被拘捕的時間和地點等等因素，加上上訴人沒有作供或傳召證人作供以解釋、推翻或反駁控方的指控，原審法官是有權推論上訴人管有涉案毒品作販運用途。" } }, { "doc_id": 94, "seg_id": 73, "translation": { "en": "We are of the view that the guilty verdict against the appellant for “trafficking in dangerous drugs” was safe. Accordingly, we dismiss the appellant’s application to appeal out of time against conviction.", "zh-HK": "本庭認為針對上訴人“販毒”的有罪裁決是穩妥的。因此，本庭駁回上訴人就定罪提出的逾期上訴申請。" } }, { "doc_id": 94, "seg_id": 74, "translation": { "en": "Sentence", "zh-HK": "判刑" } }, { "doc_id": 94, "seg_id": 75, "translation": { "en": "Mr Li did not dispute the starting point adopted by the trial judge. He only stated that the trial judge did not take into account the fact that some of the dangerous drugs concerned were for the appellant’s own consumption and did not give him a discount in sentence. Mr Li also stated that the trial judge did not give the appellant sufficient assistance on this issue.", "zh-HK": "李大律師對原審法官採納的量刑基準不表異議。他只是指原審法官沒有考慮部分涉案毒品是上訴人作自用，而給予他刑期扣減。李大律師亦指原審法官在該議題上沒有給予上訴人足夠的協助。" } }, { "doc_id": 94, "seg_id": 76, "translation": { "en": "The prosecution’s position was that the appellant was in possession of the dangerous drugs for the purpose of trafficking. The appellant, after his arrest, did tell the police the dangerous drugs concerned were all for his own consumption. The prosecution clearly did not accept this contention.", "zh-HK": "控方的立場是上訴人管有涉案毒品作販運用途。上訴人被拘捕後有向警員表示涉案毒品全作自用。控方明顯不接納該說法。" } }, { "doc_id": 94, "seg_id": 77, "translation": { "en": "At trial, the appellant’s position was that he did not make any admission. He claimed that the prosecution not only planted evidence on him but also falsely alleged that he had made a confession.", "zh-HK": "原審時，上訴人的立場更是他根本沒有作出過任何招認。他指控方不但插贓嫁禍他，更誣告他有作出過招認。" } }, { "doc_id": 94, "seg_id": 78, "translation": { "en": "After the trial judge had found that there was a prima facie case against the appellant, she explained his rights to him. The appellant elected not to give evidence or call any witnesses. He was found guilty. In mitigation, the appellant did not submit that he was a drug addict, or that part or all of the dangerous drugs involved were for his own consumption.", "zh-HK": "原審法官裁定針對上訴人控罪的表面證據成立後，有向上訴人解釋其權利。上訴人選擇不作供，而被裁定罪名成立後亦不傳召任何證人作供。上訴人亦沒有指自己是一名吸毒者，及沒有指涉案毒品是全部或部分作自用為其求情理由。" } }, { "doc_id": 94, "seg_id": 79, "translation": { "en": "Hence, under the above circumstances, the trial judge had no basis to treat any part, let alone a considerable part, of the dangerous drugs involved as for the appellant’s own use.", "zh-HK": "因此，在上述情況下，原審法官沒有任何基礎視涉案毒品任何部分，更遑論極可觀部分作為上訴人自用。" } }, { "doc_id": 94, "seg_id": 80, "translation": { "en": "Before passing sentence, the trial judge reminded the appellant time and again to set out his mitigating factors. With regard to the background of the present case, it would be impractical to require the trial judge to assist the appellant and make it clear to him that he might submit in mitigation that a considerable part of the dangerous drugs was for his own use. We must reiterate that the appellant had never raised any contention of this sort, and there was insufficient information to show that the appellant had any basis to make this contention in mitigation. It is not the duty of the court to make suggestions or give hints, or to make up grounds for the reduction in sentence for a defendant who is found guilty.", "zh-HK": "判刑前，原審法官有多次提點上訴人列出其求情理由。以本案的背景而言，要求原審法官協助上訴人，向他表明他是可以聲稱涉案毒品有極可觀部分作自用為求情理由是不切實際的。本庭必須強調，上訴人從來沒有提出該說法，亦沒有足夠資料顯示上訴人有基礎提出上述求情理由。法庭是沒有責任向一名被定罪的被告人建議、提點或編造一些可能構成減刑的理由。" } }, { "doc_id": 94, "seg_id": 81, "translation": { "en": "There is no basis at all to support Mr Li’s application in respect of the sentence. Accordingly, we also dismiss the appellant’s application to appeal out of time against sentence and affirm the original sentence.", "zh-HK": "李大律師針對判刑的申請完全沒有基礎支持。因此，本庭亦駁回上訴人就判刑提出的逾期上訴申請，維持原判。" } }, { "doc_id": 94, "seg_id": 82, "translation": { "en": "Andy H S Hung and Marco W K Li, instructed by Kenneth Lam solicitors assigned by Director of Legal Aid, for the appellant.", "zh-HK": "答辯人：由律政司高級檢控官江祖胤代表。" } }, { "doc_id": 94, "seg_id": 83, "translation": { "en": "Simon C Y Kwong, SPP of the Department of Justice, for the respondent.", "zh-HK": "上訴人：由法律援助署委派林洋鋐律師行轉聘大律師孔慶碩及大律師李煒鍵代表。" } }, { "doc_id": 95, "seg_id": 1, "translation": { "en": "Hon Tong J (giving the judgment of the Court):", "zh-HK": "高等法院原訟法庭法官湯寶臣頒發上訴法庭判案書：" } }, { "doc_id": 95, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 95, "seg_id": 3, "translation": { "en": "The applicant was charged with one count of Indecent Conduct Towards A Child Under The Age Of 16 Years, contrary to section 146(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. The particulars of offence stated that the applicant, on 26 May 2008, in his private car at Lot S of the water catchment, Shing Mun Reservoir, Tsuen Wan, committed an act of gross indecency towards X, a girl under the age of 16 years.", "zh-HK": "申請人被控一項「向年齡在16 歲以下的兒童作出猥褻行為」，違反香港法例第 200章《刑事罪行條例》第 146(1)條。控罪詳情指申請人於2008 年5 月26 日，在荃灣城門水塘引水道S 地段，在他的私家車內，向一‍名年齡在16 歲以下的女童 X作出嚴重猥褻行為。" } }, { "doc_id": 95, "seg_id": 4, "translation": { "en": "The applicant pleaded not guilty but was found guilty after trial before Deputy District Judge Johnny Chan, and was sentenced to 24 months’ imprisonment.", "zh-HK": "申請人否認控罪，區域法院暫委法官陳‍仲‍衡在審訊後裁定申請人罪名成立，判監24 個月。" } }, { "doc_id": 95, "seg_id": 5, "translation": { "en": "The applicant initially applied for leave to appeal against both conviction and sentence. Later, on 3 November 2009, he abandoned the application for leave to appeal against sentence, which application was dismissed by the Court on 4 November. The applicant now applies for leave to appeal against conviction only.", "zh-HK": "申請人不服，先提出定罪及判刑的上訴許可申請，後來在2009 年11 月3 日放棄了針對判刑的上訴許可申請，法庭已於11 月4 日撤銷其申請。申請人現祇就定罪申請上訴許可。" } }, { "doc_id": 95, "seg_id": 6, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 95, "seg_id": 7, "translation": { "en": "In brief, the prosecution case is basically as follows:", "zh-HK": "簡略而言，控方基本案情如下 ：" } }, { "doc_id": 95, "seg_id": 8, "translation": { "en": "The girl involved in this case was a Form 2 student. She was 15 years and 7 months old at the time when the offence was committed. She was a member of the fencing club of the school where she was studying. The applicant was 33 years old. He was a primary school teacher and also a part-time fencing instructor of the girl’s school; because of this, he came to know the girl.", "zh-HK": "涉案女童是一‍名中二學生，事發時年齡為15 歲零7 個月，是就讀學校劍擊會的會員。申請人則是一‍名33 歲的小學教師，在女童學校兼職劍擊導師，因而認識女童；" } }, { "doc_id": 95, "seg_id": 9, "translation": { "en": "About 5 p.m. on 26 May 2008, the applicant invited the girl to have dinner together after school. Subsequently, he drove the girl to Shing Mun Reservoir, Tsuen Wan. Sometime between 8 p.m. and 9 p.m., he parked his car near Lot S of the water catchment, Shing Mun Reservoir.", "zh-HK": "在2008 年5 月26 日，大約下午5 時，申請人邀請女童放學後一起吃晚飯，之後，申請人駕車與女童前往荃灣城門水塘。大約晚上8 時許，申請人把車停在城門水塘近引水道S 地段；" } }, { "doc_id": 95, "seg_id": 10, "translation": { "en": "Sometime between 9 p.m. and 10 p.m., PW2 was patrolling in a police vehicle and reached the above-mentioned location. He spotted the applicant’s private car and saw that the girl was sitting, in a riding position, on the body of the applicant, who was sitting on the driver seat, with her back towards the windscreen, while the applicant’s arms were around her waist. PW2 alighted, walked to the car and shone his torch into the car. The girl immediately turned round and sat on the passenger seat beside the driver seat. The police constable decided to investigate this matter. At that time no woman police officer was present, so PW2 called for assistance through the radio.", "zh-HK": "到晚上9 時許，第二控方證人乘坐的警車巡邏至上述地點，他發現申請人的私家車，並看見女童騎著坐在司機位的申請人身上，背向著擋風玻璃，而申請人雙手則環抱在女童腰間。第二控方證人下車走近，用電筒照入車內，女童即時翻身坐回車頭乘客座位。警員決定進行調查，因為當時沒有女警在場，第二控方證人於是電召協助；及" } }, { "doc_id": 95, "seg_id": 11, "translation": { "en": "Later, PW3 and other police constables came. He questioned the applicant. PW3 gave evidence that the applicant admitted under caution that he had committed acts of indecency towards the girl.", "zh-HK": "後來第三控方證人與其他警員到達，由他向申請人作出調查。第三證人作供說，在警誡下，申請人承認曾對女童作出猥褻行為。" } }, { "doc_id": 95, "seg_id": 12, "translation": { "en": "In his Reasons for Verdict, Deputy Judge Chan set out clearly the evidence given by the witnesses of this case. He recorded that it was not disputed that at the time of the offence the girl was 15 years and 7 months old, while the applicant was 33 years old.", "zh-HK": "陳‍法官在裁決理由書裡已清晰地交代了本案各證人的證供。他指出，控辯雙方不爭議女童的年齡，於案發時為15 歲7 個月，而申請人則為33 歲。" } }, { "doc_id": 95, "seg_id": 13, "translation": { "en": "Deputy Judge Chan stated that the prosecution applied to tender as evidence the notebook record and the verbal admission made by the applicant at the scene to PW3. The contents of the notebook record included the reply made by the applicant which he confirmed by signing it at the scene and the post-recorded cautioned statement which was processed subsequently at the police station. The defence objected to the application and submitted their written reasons for objecting it. Deputy Judge Chan dealt with this matter by way of the alternative procedure.", "zh-HK": "陳‍法官提到，控方申請將申請人向第三證人在現場作出的口頭招認及記事冊紀錄呈堂為證據。有關的記事冊紀錄，包括申請人於現場簽署確認的回應及其後在警署所做的補錄警誡口供。辯方反對這項申請，並呈遞了書面反對理由。陳‍法官以交替程序處理了有關的問題。" } }, { "doc_id": 95, "seg_id": 14, "translation": { "en": "As far as the girl’s evidence is concerned, Deputy Judge Chan pointed out that her evidence in chief was based on her video recordings, but after she was cross-examined by the defence, the prosecution asked that she be treated as a hostile witness. Having heard submissions on this matter, Deputy Judge Chan granted the prosecution’s application and then the prosecution cross-examined the girl.", "zh-HK": "就女童的證供方面，陳‍法官說明她的主問是以其錄影記錄為基礎，但在辯方向她盤問後，控方要求將女童轉為敵對證人。聽過這方面的陳詞後，陳‍法官批准控方申請，主控其後有對女童提出盤問。" } }, { "doc_id": 95, "seg_id": 15, "translation": { "en": "Deputy Judge Chan stated that he reopened the hearing on the special issue at the request of the defence. The reason was that the defence learnt subsequently that the applicant was suffering from temporal lobe epilepsy. In this connection, the defence called other witnesses to give evidence. Finally, having considered the evidence and submissions from both sides, Deputy Judge Chan ruled that both the verbal admission and the notebook record were admissible as evidence.", "zh-HK": "陳‍法官提到，他曾批准辯方的要求而重開特別事項的聆訊，理由是辯方後來得悉申請人患有聶葉性羊癎症。在這方面，辯方傳召了其他證人作供。最後，在考慮了證供及雙方陳詞後，陳‍法官裁定口頭招認及記事冊的記錄均可呈庭為證據。" } }, { "doc_id": 95, "seg_id": 16, "translation": { "en": "A rather special feature of this case is that in the video recordings the girl said that the applicant had committed acts of indecency towards her, but under cross-examination by the defence, she denied her evidence in this area. Deputy Judge Chan carried out a careful analysis of the girl’s evidence in his Reasons for Verdict. His analysis and conclusion are set out below (page 35-36 of the bundle):", "zh-HK": "本案較為特別的情況是女童在錄影證供時說過申請人有對她作出猥褻行為，但在辯方盤問下，她推翻了這方面的供詞。陳‍法官在裁決理由書裡有小心地分析了他對女童之證供的看法。他的分析及結論如下(綜卷第 35至36 頁) :" } }, { "doc_id": 95, "seg_id": 17, "translation": { "en": "“168.PW1 (i.e. girl X) was successfully turned into a hostile witness by the prosecution and was cross-examined by them. The Court has to consider whether [she] is a reliable witness. The evidence [she] gave in Court is contradictory to the contents of the video recordings used as her evidence in chief. The Court has to consider whether, in the light of the contradictions in her evidence, her evidence is still credible and whether there is any danger in relying on her evidence.", "zh-HK": "「168.就著控方證人一(即女童 X)，她於案中被控方成功轉為敵對證人盤問。法庭必須考慮[她]是否一‍位值得信賴的證人。因[她在]庭上[的]證供是與她被用作主問的錄影會面記錄前後矛盾。法庭必須考慮於控方證人一前後矛盾的證供下，她[的]證詞是否仍是可信及依賴她的證供是否存在危險。" } }, { "doc_id": 95, "seg_id": 18, "translation": { "en": "169.At last, the Court finds that the contents of PW1’s video recordings are supported by PW2’s evidence and the defendant’s admission. The Court is of the view that it is indeed dangerous to rely solely on PW1’s evidence given in the form of the video recordings. However, in this case besides PW1’s evidence given during her interviews, there are also PW2’s evidence and the defendant’s admission, which can support her evidence. As for PW1’s evidence given in Court, the Court finds that obviously [she] was not telling the truth when she was in Court. The Court considers that the explanation given by PW1 as to the discrepancies between what she said in the video interviews and her evidence in Court is not convincing. The Court rejects PW1’s evidence that because she wanted to leave the scene and the police station as soon as possible, she said something which she thought the police would like to hear.", "zh-HK": "169.法庭最後認為，控方證人一的錄影會面之內容是得到控方證人二證詞及被告人的招認所支持，法庭認為，若單靠控方證人一的錄影會作為證據那確是存在危險。但於案中除控方證人一的證詞會面外，她的證詞是尚有控方證人二及被告人的招認所支持。就著控方證人一於庭上的證詞法庭認為明顯地[她]並沒有於庭上說出真相，法庭認為控方證人於庭上就著她錄影會面中所說跟跟庭上證詞之出入解釋時欠缺說服力，法庭拒絕接納控方證人一所說她是為了早點離開現場及離開警署，而說一些她認為警方希望聽到的話。" } }, { "doc_id": 95, "seg_id": 19, "translation": { "en": "170.The Court’s view is that there are inherent improbabilities in PW1’s evidence that if she said something which the police wanted to hear, she could leave earlier. The Court believes that once PW1 told the police what she said in the video recordings, there was more reason for the police to ask PW1 to stay to assist them in the investigation. When PW1 told the police that intimacies had taken place between she and the defendant, the police would need PW1 even more to stay to assist them to investigate what happened between she and the defendant. The Court considers that what PW1 said in Court, i.e. she lied during the video recorded interviews because she was under pressure, is definitely not the truth. At that time, PW1’s mother was in the police station and she watched over the process of the video recordings through the close circuit television. In the course of the video recordings, PW1 could have told the video recording officers that she did not want to continue with the video recorded interviews and that she wanted to leave the police station, or when she was taking a rest she could have complained to her mother or told her mother that she did not want to continue with the video recorded interviews but wanted to leave. However, she did none of that. The Court finds that the explanation she gave in Court is unconvincing.", "zh-HK": "170.法庭認為控方證人一所說，若她說一些警方想聽的話，她便可早點離開，這說法是存在著內在的不可能性。法庭認為，若控方證人一向警方說出如錄影會面中她所說的話，那警方便更需要控方證人一留下協助他們調查。控方證人一若對經警方說她曾與被告人發生親密關係，那警方當然會更需要控方證人一留下協助警方調查她跟被告人發生的事情，法庭認為控方證人一於庭上所說，她是因受壓而於錄影會面時說謊，法庭認為這絕非事實所在，當時控方證人一的母親是於警署內，於一通過閉路電視監控錄影會面的過程。於錄影期間，控方證人一是可向錄影人員說她不再希望繼續錄影會面及欲離開警署，又或她亦於休息時跟她的母親作出投訴，或跟母親說她不再希望繼續錄影會面，離開警署，但他卻沒有這樣做，而法庭認為她於庭上的解釋是欠缺說服力。" } }, { "doc_id": 95, "seg_id": 20, "translation": { "en": "……", "zh-HK": "……" } }, { "doc_id": 95, "seg_id": 21, "translation": { "en": "172.In the Court’s view, during the video recorded interviews, PW1 was quite protective towards the defendant. She tried her best to play down the degree of intimacy and the intensity of the intimate acts between she and the defendant. PW1 often answered questions by saying, “I don’t remember’, but in fact it is not true that she did not remember the answers to the questions; rather, she was trying her best not to say anything detrimental to the defendant. However, as a result of the social worker’s careful and patient questioning, PW1 eventually disclosed part of the truth, including the fact that the relationship between the defendant and she was one of boyfriend and girlfriend, and that the defendant asked PW1 to embrace him, then PW1 put her arms round the defendant’s waist, while the defendant put his hands on PW1’s back and then kissed PW1 on the forehead; then PW1 twined her arms around the defendant’s neck; the defendant reclined the seat, unzipped his trousers and asked PW1 to kiss his lower part (i.e. penis); and PW1 did that.", "zh-HK": "172.法庭認為控方證人一於錄影會面中是頗為維護被告人，她儘量希望將她跟被告的親密行為說的較輕、淡化，控方證人是常以記不起回答問題，但事實上她並非是對問題答案無記憶，而是她是儘量不想說一些對被告人不利的話，但於社工細心耐性的追問下，控方證人一始終道出了真相的部分，包括她跟被告人為男女朋友關係，及被告人要求控方證人一要求擁抱被告，而控方證人一亦擁抱被告的腰，被告人則把雙手放在控方證人一背部，之後被告吻控方證人一的前額，控方證人一並以雙臂纏著被告的頸，被告把椅背位低，拉開褲鍊，要求控方證人吻被告下體(即陽具)，而控方證人一亦有這樣做。" } }, { "doc_id": 95, "seg_id": 22, "translation": { "en": "173.The Court believes that PW1 did not have any motive to fabricate a story that the defendant and she were boyfriend and girlfriend. Actually, the statement given by PW1 during the video recorded interviews that the defendant and she were boyfriend and girlfriend is a true statement. 2, Intimacies such as embracing, kissing PW1 on the forehead, PW1’s twining her arms around the defendant’s neck and PW1’s kissing the defendant’s penis as described by PW1 in the video recorded interviews did actually occur.”1 [emphasis added] 1 Page 35 H-M of the appeal bundle", "zh-HK": "173.法庭認為，控方證人一並沒有捏造她跟被告人為男女朋友關係的動機，而事實上控方證人一於錄影會所說，她跟被告人為男女朋友關係亦是事實所在。二，控方證人一跟被告亦確曾發生如控方證人一於錄影會面中所說的親密行為，如擁抱、吻控方證人一的額，控方證人一以雙臂纏被告的頸及控方證人一吻被告的陽具等行為。」 [本庭強調]" } }, { "doc_id": 95, "seg_id": 23, "translation": { "en": "Deputy Judge Chan made the following comments and conclusions about other prosecution witnesses (see page 36 and 37 of the bundle):", "zh-HK": "陳‍法官對其他控方證人有以下的評估及結論(見綜卷第 36至37 頁) :" } }, { "doc_id": 95, "seg_id": 24, "translation": { "en": "“175.The Court finds that PW2 is an honest and reliable witness. The Court is satisfied that PW2 at the scene saw that PW1 was sitting in the car, and that, as described by PW2, PW1 was sitting on the driver seat, that is to say, sitting, in a riding position, on the defendant, with her back towards the windscreen of the private car. The defendant was sitting on the driver seat. At that time the back of the chair was in an upright position. The defendant’s arms were around PW1’s waist. The Court is aware that the scene was not illuminated by street lights and that at the material time it was night-time, but PW2 lit up the place with his torch and saw what happened, as described above, within a short distance. The Court is satisfied that PW2 unmistakenly saw a girl in school uniform, who was later identified to be PW1, sitting on the body of the defendant, who was sitting on the driver seat of the private car.", "zh-HK": "「175.法庭認為，控方證人二是一[名]誠實可靠的證人，法庭信納無控方證人二於現場看見控方證人一坐於車廂內，如控方證人二所說般，控方證人一是以背向著私家車的擋風玻璃，坐於司機座椅，即騎著被告人，被告是坐在司機座位，當時椅背是直立，被告並以雙手放於控方證人一腰間。法庭留意到現場環境，並無街燈照明，當時亦是夜晚，但控方證人二是以電筒照明，並於短距離看見上述情況。法庭信納控方證人二是正確無誤地看見其後得知為控方證人一的穿著校服女子坐於私家車司機座位被告身上。" } }, { "doc_id": 95, "seg_id": 25, "translation": { "en": "176.The Court notices that the description given by PW2 about seeing PW1 sitting, in a riding position, on the defendant’s body in the car is different from what was admitted by the defendant and PW1. Nevertheless, the Court is satisfied that PW1 saw the above-mentioned body contacts within a short distance under illumination by torch light and that he saw PW1 turn round and return to her seat.", "zh-HK": "176.法庭亦留意到控方證人二所述，他看見控方證人一騎在被告身上於車廂內的情況與控方證人二所述是於被告人及控方證人一所承認有別，但法庭信納控方證人二是於電筒照明下，並於短距離目睹上述接觸，並看見控方證人一翻身坐回她座位。" } }, { "doc_id": 95, "seg_id": 26, "translation": { "en": "177.PW2’s evidence about what he saw the defendant and PW1 doing is different from what PW1 said in the video recorded interviews and is also different from what the defendant verbally admitted at the scene and from the admission recorded in the post-recorded cautioned statement. The Court believes that PW2 honestly gave evidence about what he witnessed; on the other hand, PW1 was trying her best to make the incident appear to be less serious than it was, while the defendant made admission about the incident according to what he himself wished to say.", "zh-HK": "177.控方證人二就著目睹被告人跟控方證人一的行為，跟控方證人一於錄影會面事所說或被告人於他的現場口頭招認及補錄警誡供詞所記載的招認說話是有分別。法庭認為，控方證人二是就著自己所目睹如實作證，但另一方面，控方證人一只是儘量將事情說的較輕，而被告人本人則是按自己意願就著事件作出招認。" } }, { "doc_id": 95, "seg_id": 27, "translation": { "en": "178.Furthermore, PW2 appeared at the scene only at a later stage. The Court considers that it is not strange at all that PW2 did not see what contacts there were between PW1 and the defendant at the earlier stage, i.e. before PW2 arrived. However, what PW2 saw did support the allegation that the defendant and PW1 had intimate contacts in the car. Admittedly, the action which PW2 saw, namely PW1 sitting on the defendant’s body, in a riding position, with her back towards the windscreen of the private car, falls short of being indecent, but it strongly supports the allegation that the defendant and X, i.e. PW1 did have intimate contacts in the car. It also supports what PW1 said in the video recorded interviews, i.e. before the constable arrived she and the defendant had even more intimate contacts as described in the video recorded interviews.", "zh-HK": "178.再者，控方證人二出現於現場亦是較後期的時間，法庭認為控方證人二看不見較早前，即控方證人二到場前控方證人跟被告人的接觸是毫不出奇。但控方證人二所見確是支持被告人跟控方證人一於車廂內是有親密接觸，誠然控方證人二所見，控方證人一當時背向私家車擋風玻璃，騎在被告身上，這行為尚未達至猥褻程度，但卻強烈支持被告人跟X即控方證人一在車內是確是有親密的接觸，亦支持控方證人一於錄影會面中所說，警員到場前，她跟被告人是曾有如錄影會面有述更親密的接觸。" } }, { "doc_id": 95, "seg_id": 28, "translation": { "en": "179.The Court finds that PW3 is an honest and reliable witness. The Court has already commented on the evidence about the special issue and will not repeat it. As far as the general issue is concerned, the Court accepts PW3’s evidence that at the scene where the defendant was arrested, the defendant did, as stated by PW3, make the verbal admission recorded in the notebook. The Court is satisfied that PW3 accurately recorded in his notebook the conversation between he and the defendant. The Court gives full weight to the admission in question.”", "zh-HK": "179.法庭認為控方證人三是一誠實可靠的證人，法庭已交代了特別事項的證詞，不再贅述。而就著一般事項，法庭信納控方證人三的證詞中所說，被告於拘捕現場確如控方證人三所述，作為了現載於記事冊的口頭招認。而法庭亦信納控方證人三的記事冊是準確地記錄了他跟被告人的對答內容，法庭給予有關招認全面的證據比重。」" } }, { "doc_id": 95, "seg_id": 29, "translation": { "en": "Deputy Judge Chan’s decision regarding this case as a whole is as follows (see page 37 of the bundle):", "zh-HK": "對於本案的整體案情，陳‍法官的裁決是(見綜卷第 37頁) :" } }, { "doc_id": 95, "seg_id": 30, "translation": { "en": "“183.Judging from all the evidence before the Court, the Court is satisfied that the defendant and X did embrace each other; the defendant did kiss X on the forehead; X did twine her arms around the defendant’s neck and the defendant did take out his penis for X to have intimate contact with it. Having considered all the evidence, the Court finds that the defence’s allegation that the police constables fabricated evidence to frame up the defendant is not substantiated. The Court finds that there are inherent improbabilities in the defendant’s allegation that the constables fabricated the evidence.", "zh-HK": "「183.綜合本席面前證據，法庭從證據中信納被告人跟X確是曾互相擁抱，被告亦曾吻X的額頭，而X亦曾以雙手纏繞被告的頸部，被告更曾取出他的陽具給X作親密接觸。法庭考慮了整體證據後，認為案中如辯方所指，警員捏造證據誣告被告的情況並不存在。法庭認為辯方所指的警員捏造證據是存在其內在個不可能性。" } }, { "doc_id": 95, "seg_id": 31, "translation": { "en": "184.The police constables involved in this case, including PW2 and PW3, had to put the admission words into the defendant’s mouth, and to force or induce the defendant to sign to confirm that he, being a teacher, indecently assaulted an underage girl. The police not only needed to make the defendant confess, but also needed to find a victim, to make the girl X (i.e. the fencing student of the defendant) to cooperate with them to make up the accusations that there were intimate body contacts between the defendant and she.", "zh-HK": "184.案中警員，包括控方證人二及三，不但要將一些招認說話強加於被告人口中及逼或誘使被告人簽署確認他作為老師，非禮一未成年的少女，除需要使被告承認外，警方更需要找來一受害人，警方需要使女童 X（即被告的劍擊學生）跟警方合作，虛構一些指控，指被告人曾與她發生親密的身體接觸。" } }, { "doc_id": 95, "seg_id": 32, "translation": { "en": "185.Judging from the evidence before the Court, the Court is sure that when PW2 reached the scene on patrol he saw that PW1 was sitting on the defendant, in a riding position, in the car, with her back towards the windscreen of the car. Because of that, he carried out further investigation. He called for police vehicle no. 68 to come to assist him only because of what he saw at the scene.", "zh-HK": "185.從面前證據，法庭確信控方證人二是因為他巡邏至現場時，看見控方證人一於被告車廂內以身體騎著被告的姿勢，背向私家車的擋風玻璃，他才作進一步的調查，他亦因他所於現場所目睹才召喚68 號警車到場協助。" } }, { "doc_id": 95, "seg_id": 33, "translation": { "en": "186.The Court considers that if PW2 at the scene had seen that [the defendant] and PW1 were just sitting on the seats in the private car, without doing anything unusual, he would surely not have called for the police officers in police vehicle no. 68 to come to the scene to assist him. The Court finds that PW3 declared to the defendant at the scene that he was under arrest only because the defendant made the verbal admission to him at the scene. The Court is of the view that if the defendant did not make any admission to the police constables at the scene and the constables did not know whether the girl X would cooperate with them in framing up the defendant, then in there circumstances, it is unbelievable that they would, as alleged by the defence, take X and the defendant, without arresting him, to the police station.", "zh-HK": "186.法庭認為，若控方證人二於現場只看見跟控方證人一坐於私家車內的座位，並無異狀，他是決計不會找來68 號警車的車員到場協助。法庭認為控方證人三是因被告人於現場跟他作為口頭招認，才於現場宣佈拘捕被告人。法庭認為，若在場的警員並無被告人於現場作出任何招認，他們又不知道女童X會否跟他們合作誣告被告，於此情況下，他們如辯方所指，不拘捕被告的情況下，將被告及X帶返警署的說法是難以使人置信的。" } }, { "doc_id": 95, "seg_id": 34, "translation": { "en": "187.On the basis of the defendant’s admission, the actions which PW2 saw at the scene and the things said by the girl X during the video recorded interviews, the Court finds that it is beyond reasonable doubt that at the scene in the car intimate contacts did occur between the defendant and X, including the defendant touching the breasts and the lower part of the girl X and the defendant taking out his penis for the girl X to touch it and kiss it.” [emphasis added]", "zh-HK": "187.從被告的招認，控方證人二現所目睹及女童X於錄影會面所說，法庭可毫無合理疑點的證案標準，被告人跟X於車廂內，於案發現場曾發生親密接觸，包括被告人曾觸摸女童X胸部及下體，被告亦曾取出他的陽具讓女童X觸摸及親吻。」 [本庭強調]" } }, { "doc_id": 95, "seg_id": 35, "translation": { "en": "Deputy Judge Chan held that according to the moral standard of ordinary citizens, what the applicant did to the girl, especially taking out his penis for the girl to kiss it, was indecent, and that the indecency was serious enough to be gross. He therefore found the applicant guilty.", "zh-HK": "陳‍法官認為，基於申請人對女童所作出的行為，尤其是取出陽具讓女童親吻，按一般巿民的道德標準而言已屬猥褻，程度也達至嚴重。因此法庭裁定申請人罪名成立。" } }, { "doc_id": 95, "seg_id": 36, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 95, "seg_id": 37, "translation": { "en": "Mr. Alex Ng, counsel for the applicant, put forward the following grounds of appeal:", "zh-HK": "代表申請人的吳‍政‍煌大律師提出以下的上訴理由 ：" } }, { "doc_id": 95, "seg_id": 38, "translation": { "en": "(1)The trial judge erred in law and in his findings of fact in that he wrongly adopted girl X’s video recorded interview evidence (“video evidence”) as the factual basis of the conviction.", "zh-HK": "(1)原審法官不當地採納女童 X的錄影會面證供(“錄影證供”)作為事實的定罪基礎，於法理及事實審斷上出錯。" } }, { "doc_id": 95, "seg_id": 39, "translation": { "en": "(2)The trial judge erred in his findings of fact in that he admitted PW3’s evidence about the applicant’s verbal admission and about the contents post recorded in the notebook, having totally neglected the serious inherent improbabilities in his evidence.", "zh-HK": "(2)原審法官採納控方證人三就申請人的口頭招認及記事冊補錄的證供，完全忽略了其證供的嚴重內在性不可能的情況，於事實判斷上出錯。" } }, { "doc_id": 95, "seg_id": 40, "translation": { "en": "(2.1)Alternatively, the trial judge proceeded on a wrong legal basis when he dealt with PC 1987’s questioning the applicant without cautioning him.", "zh-HK": "(2.1)交替地，原審法官在處理警員 1987在未有警誡申請人的情況下向他問話的法理基礎失當。" } }, { "doc_id": 95, "seg_id": 41, "translation": { "en": "(3)In these circumstances, the conviction is unsafe.", "zh-HK": "(3)在此情況下，定罪為不穩妥。" } }, { "doc_id": 95, "seg_id": 42, "translation": { "en": "Applicant’s submissions", "zh-HK": "申請人陳詞" } }, { "doc_id": 95, "seg_id": 43, "translation": { "en": "Mr. Ng submitted that in general, if a witness in Court denied the truth of the statements he gave earlier, then the statements, including sworn statements, should not be treated as evidence. Mr. Ng referred to the judgment given by the English Court of Appeal in R v Goldens, 45 Cr. App. R. 5, CCA (at p.11):", "zh-HK": "吳‍大律師陳詞裡指出，在一般情況下，證人於庭上否認早前所作的口供時，該等口供不應被視為證供，就算是宣誓下的口供也是如此。吳‍大律師引述了英國上訴庭在R v Goldens, 45 Cr. App. R. 5, CCA (at p. 11)的判詞 :" } }, { "doc_id": 95, "seg_id": 44, "translation": { "en": "“When a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements whether sworn or unsworn, do not constitute evidence upon which they can act.”", "zh-HK": "“When a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements whether sworn or unsworn, do not constitute evidence upon which they can act.”" } }, { "doc_id": 95, "seg_id": 45, "translation": { "en": "On this point Mr. Ng also cited other cases in support, including The Queen v Yip Moon Ting and another [1984] HKLR 443, Driscoll v the Queen [1977] 51 ALJR 731 and R v Maw [1994] Crim. L.R. 841.", "zh-HK": "吳‍大律師在這點上亦引用了其他案例，如The Queen v Yip Moon Ting and another [1984] HKLR 443, Driscoll v The Queen [1977] 51 ALJR 731和R v Maw [1994] Crim. L.R. 841。" } }, { "doc_id": 95, "seg_id": 46, "translation": { "en": "Mr. Ng accepted that the video recordings of the girl were given in evidence by virtue of section 79C of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong, but he argued that there were unsafe areas in the trial judge’s assessment of the girl’s evidence. He stressed that the girl’s evidence basically denied that the applicant had done any indecent act towards her and she said that the version of the events described by her in her video evidence was untrue. This situation was similar to the one commented on by the English Court of Appeal in R v Birch, 18 Cr. App. R. 26:", "zh-HK": "吳‍大律師接納女童的錄影證供是以香港法例第 221章《刑事訴訟程序條例》第 79C條而呈堂為證據，但他認為原審法官的對女童證供的評估有不安全的地方。他強調女童證供基本上否認了申請人曾與她有猥褻行為，她已說過錄影證供的版本是假話。這種情況就如英國上訴庭在R v Birch, 18 Cr. App. R. 26所指 ：" } }, { "doc_id": 95, "seg_id": 47, "translation": { "en": "“Apart from authority, the general position here was that the chief witness for the crown could not be believed on oath. Of course, there might be enough other evidence to justify a conviction. Was there here? The confusion arose from supposing that depositions in the Court below are per se evidence at the trial: they are not. You cannot leave a jury to act on a statement which the witness herself says is untrue.”", "zh-HK": "“Apart from authority, the general position here was that the chief witness for the crown could not be believed on oath. Of course, there might be enough other evidence to justify a conviction. Was there here? The confusion arose from supposing that depositions in the Court below are per se evidence at the trial : they are not. You cannot leave a jury to act on a statement which the witness herself says is untrue.”" } }, { "doc_id": 95, "seg_id": 48, "translation": { "en": "Mr. Ng submitted that there were special features in this case in that when the girl denied in Court the main allegations made in the video evidence, the defence counsel would not then engage in any in-depth cross-examination about the contents of the video evidence. Therefore, the defence counsel would be put into a difficult position because of the changes in the testimony of the girl in Court and the trial judge’s subsequent decisions as to which parts of the facts he would accept and which parts he would reject, and this would lead to unfairness.", "zh-HK": "吳‍大律師認為本案有獨特的情況 ：當女童在庭上推翻了錄影證供裡的主要情節時，辯方大律師便不會針對錄影證供內容再作仔細盤問，因此，辯方律師會因女童在庭上的轉向及原審法官後來對事實的取捨而陷於兩難的處境，實有不公平的意味。" } }, { "doc_id": 95, "seg_id": 49, "translation": { "en": "Mr. Ng pointed out that there were cases in which the English Court of Appeal held that a conviction was unsafe and unsatisfactory because it was not possible for the defence to carry out any effective cross-examination. (see R v Janusz Marian Malicki [2009] EWCA Crim. 365 and R v M [2008] EWCA Crim 2751.)", "zh-HK": "吳‍大律師指英國上訴庭也會基於辯方不可能進行有效盤問而裁定判罪不安全不穩妥。(見R v Janusz Marian Malicki [2009] EWCA Crim. 365及R v M [2008] EWCA Crim 2751。)" } }, { "doc_id": 95, "seg_id": 50, "translation": { "en": "According to Mr. Ng, Deputy Judge Chan’s conclusion that PW2’s evidence could support the girl’s evidence was also unsafe, because he did not sufficiently consider the following factors:", "zh-HK": "吳‍大律師的觀點是，陳‍法官認為第二證人的證供支持女童證供的結論也不穩妥，因為他沒有充分地考慮到以下的因素 ：" } }, { "doc_id": 95, "seg_id": 51, "translation": { "en": "(i)The girl in her video evidence had never said that she had been sitting, in a riding position, on the applicant’s body, and the intimate acts in question took place when the policeman appeared; and", "zh-HK": "(i)女童在錄影證供裡都從沒有說她曾騎在申請人的身上，而有關的親密行為是在警察出現時發生；及" } }, { "doc_id": 95, "seg_id": 52, "translation": { "en": "(ii)The girl’s sitting, in a riding-position, on the applicant’s body, without more, did not constitute indecency.", "zh-HK": "(ii)單憑女童騎坐在申請人身上的行為不構成猥褻行為。" } }, { "doc_id": 95, "seg_id": 53, "translation": { "en": "Mr. Ng, based on his analysis, complained that it was inappropriate for Deputy Judge Chan to hold that PW3’s questioning the applicant upon his arrival at the scene, without cautioning the applicant first, was acceptable. Mr. Ng argued that the Court overlooked the fact that PW2 had already conducted a preliminary questioning and knew how old the girl was. In the mind of PW2, a crime had been committed at the scene. Any police officer who came to the scene subsequently should not, on the ground that he came only at a “later” stage, neglect the requirement to administer a caution immediately.", "zh-HK": "吳‍大律師分析指陳‍法官裁定第三證人到場後向申請人問話前不先行警誡是可接受的做法，這是不當的裁決。吳‍大律師指法庭忽略了第二證人已進行了初步查問並得悉了女童的年齡，而第二證人的意念是現場已有案件發生，後期到場的警務人員不應以「遲來」的理由而忽略即時作出警誡的需要。" } }, { "doc_id": 95, "seg_id": 54, "translation": { "en": "As far as PW3’s credibility is concerned, Mr. Ng specially pointed out that there were grave inherent improbabilities in his (PW3’s) evidence about the handling and recording of the verbal admission. Although this was a finding of fact, there were areas to which the attention of the Court of Appeal should be drawn (paragraph 17 of the written submissions). His views were:", "zh-HK": "在第三證人的誠信方面，吳‍大律師特別提及他(第‍三證人)在處理及記錄口頭招認方面的證供，有嚴重的內在不可能性，雖然這屬事實裁決，但卻值得上訴庭關注(書面陳詞第 17段)。他認為 ：" } }, { "doc_id": 95, "seg_id": 55, "translation": { "en": "(i)PC5758 (PW2) would certainly not omit the focus of the investigation — the age of the girl — and fail to tell PC1987 (PW3) about that;", "zh-HK": "(一)警員 5758(第二證人)決不會遺漏了調查的焦點——女童的年齡——而沒有告訴警員 1987(第三證人)；" } }, { "doc_id": 95, "seg_id": 56, "translation": { "en": "(ii)According to PC1987’s evidence, under the circumstances in existence at that time, he specifically cautioned the applicant before carrying on with the questioning. If that was the case, how come he would forget to write down the caution;", "zh-HK": "(二)跟據警員 1987的證供，在當時情況下，他是刻意要先行警誡申請人，才繼續發問，那又怎麼會忘了寫下警誡詞；" } }, { "doc_id": 95, "seg_id": 57, "translation": { "en": "(iii)PC 1987’s evidence was that immediately after the applicant admitted that he had “touched” the girl X, he cautioned the applicant and asked him the questions which were, together with the answers (including the girl’s age), recorded on page 76 and 77 of the notebook. If PC1987 at that time, as he said in his evidence, did not know how old the girl was, why would he decide to caution the applicant? “Touching” a girl who was above 16 (with her consent) obviously was not a crime. The only reasonable inference was that the questioning recorded on page 76 and 77 was not carried out under caution (so there was no caution). The credibility/ reliability of PC1987 should be called into question and the admission, evidence of which came from him, should be rejected by the Court of Appeal.", "zh-HK": "(三)警員 1987的證供，是當申請人承認「摸過」女童 X，便隨即警誡申請人，並發問了記事冊上76及77頁所載的問題和答案——當中包括女童的歲數。若警員 1987當時如他所供稱一樣尚未知曉女童的歲數，那為什麼他會決定要警誡申請人呢？明顯地，「摸」一名年齡大於16 歲的女性(同意下)並非刑事罪行。唯一的合理推論是記事冊 76及77 頁的問答並非在警誡下進行(因此沒有警誡詞)而警員 1987的可信/可靠程度實應受到質疑，由他提證的招認亦應為上訴庭所拒納。" } }, { "doc_id": 95, "seg_id": 58, "translation": { "en": "Mr. Ng in his supplemental written submissions added that according to R v Nelson and Rose [1998] 2 Cr. App. R. 399, CA, “The appropriate time to administer the caution is when, on an objective test, there are grounds for suspicion, falling short of evidence supporting a prima facie case of guilt, that an offence has been committed by the person questioned”. In addition, in R v Hawkins [2005] EWCA Crim. 1723, the English Court of Appeal held that when an interviewee had been questioned at different times and the officer who questioned him at an earlier time suspected that the interviewee had committed certain crimes, but the officer who questioned him later, in ignorance of this result of the earlier questioning, carried on the questioning without cautioning the interviewee, then the confession thus obtained ought to be rejected.", "zh-HK": "吳‍大律師在附加書面陳詞時補充指，根據R v Nelson and Rose [1998] 2 Cr. App. R. 399, CA一案, “The appropriate time to administer to caution is when, on an objective test, there are grounds for suspicion, falling short of evidence supporting a prima facie case of guilt, that an offence has been committed by the person questioned”。再者，在R v Hawkins一‍案，[2005] EWCA Crim. 1723，英國上訴庭也說明，當被接見者先後被問話，如先問者已懷疑被接見者有干犯罪行，若後者不知道這調查結果而在沒有警誡下再進行問話，有關的招認也應被拒。" } }, { "doc_id": 95, "seg_id": 59, "translation": { "en": "Respondent’s submissions", "zh-HK": "答辯人陳詞" } }, { "doc_id": 95, "seg_id": 60, "translation": { "en": "The respondent’s representative, Mr. Alex Lee, Senior Assistant Director of Public Prosecutions, replied to the applicant’s arguments point by point in his written submissions.", "zh-HK": "代表答辯人的高級助理刑事檢控專員李‍運‍騰在其書面陳詞對申請人的理據遂點提出了反駁。" } }, { "doc_id": 95, "seg_id": 61, "translation": { "en": "The respondent agreed that generally speaking, to convict just by relying on the contents of the girl’s video evidence would be dangerous and that this point was accepted by the trial judge. However, the respondent submitted that the Deputy Judge had made it clear that in this case besides the girl’s video evidence, there were also evidence about what PW2 observed and the admission made by the applicant. The respondent pointed out that the significance of PW2’s evidence was that it could serve as circumstantial evidence in support of the prosecution’s allegations and this, in combination with the applicant’s admission, fortified the prosecution evidence so that the prosecution evidence as a whole was sufficient to found a conviction.", "zh-HK": "基本來說，答辯人同意，若單靠女童的錄影證供的內容來定罪會是危險的，原審法官也接納這一點。但答辯人認為暫委法官已說明，案中除女童的錄影證供外，尚有控方第‍二證人的觀察及申請人的招認。答辯人指出，控方第二證人證供之重要性在於對控罪提供了環境證據的支持，而加上申請人的招認，控方的整體證據足以支持定罪。" } }, { "doc_id": 95, "seg_id": 62, "translation": { "en": "In response to Mr. Ng’s submission about the video evidence, the respondent argued that the girl’s 3 video recordings, namely (P4) to (P6) were admitted in evidence in accordance with the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong. Their evidential value was therefore different from the ordinary prior inconsistent statements referred to by Mr. Ng. These video recordings about her interviews should be regarded as the evidence in chief of the girl (see section 79C(6)(b) and Chim Hon Man v HKSAR [1999] 1 HKC 428, 438A-C). That being so, when the girl, under cross-examination, denied the truth of what she said during the video recordings, the effect was the same as that when a witness, under cross-examination, denied the truth of his evidence in chief. In principle, this was distinguishable from the cases such as R v Yip Moon Ting [1984] HKLR 443 cited by the applicant.", "zh-HK": "針對吳‍大律師對錄影證供的陳詞，答辯方反駁指，女童的三次錄影記錄(P4)至(P6)，均是根據香港法例第 221章《刑事訴訟程序條例》呈堂成為證據的。因此，它們的證據價值，有別於吳‍大律師指的一般「以往作出的不一致陳述」(“prior inconsistent statement”)。這些會面記錄應被視為女童證供的主問部份。(見第 79C(6)(b)條及Chim Hon Man v HKSAR [1999] 1 HKC 428, 438A-C。)因此，如女童在盤問時推翻她於錄影證供中所講述的情節，結果即相當於證人在盤問時推翻他在主問時的證供。在原則上，這是有別於申請人所提出的如R v Yip Moon Ting [1984] HKLR 443等案例。" } }, { "doc_id": 95, "seg_id": 63, "translation": { "en": "The respondent’s view was that the correct understanding of the law on this issue was :", "zh-HK": "答辯人認為，在這議題上，正確的理解應該是 ：" } }, { "doc_id": 95, "seg_id": 64, "translation": { "en": "(1)What the girl said in the video evidence, even though contradictory to what she said under cross-examination, was still part of her evidence;", "zh-HK": "(1)女童在錄影證供中所說的，雖與她在盤問下所說的有矛盾，但仍屬她證供的一部份；" } }, { "doc_id": 95, "seg_id": 65, "translation": { "en": "(2)When the girl contradicted herself in her evidence, it was not necessary for the Court to reject the whole of her evidence;", "zh-HK": "(2)當女童的說法出現前後矛盾，法官並不一定須要全盤否定她的證供；" } }, { "doc_id": 95, "seg_id": 66, "translation": { "en": "(3)In assessing the girl’s evidence, the Court was certainly required to consider carefully whether she was still reliable, and which parts of her evidence were credible and which parts were not; and", "zh-HK": "(3)在評估女童的證供時，法官當然必須小心考慮她是否仍是可信賴的，及她的那些部份的證供可信，那些部份不可信；及" } }, { "doc_id": 95, "seg_id": 67, "translation": { "en": "(4)The Court should warn itself of the danger of accepting the evidence of a witness who had been shown to have said different things at different times which contradicted each other, and then decide what suitable weight to attach to the different versions.", "zh-HK": "(4)法官應警剔自己因證人的證供有前後矛盾的地方，接納她的證供會存在風險，然後按情況對她所敍述的不同版本給與適當的比重。" } }, { "doc_id": 95, "seg_id": 68, "translation": { "en": "The respondent considered that in the circumstances of this case, Deputy Judge Chan dealt with the girl’s evidence in a fair manner in accordance with the principles and could not be faulted.", "zh-HK": "答辯人認為，在本案情況下，陳‍法官對女童證供的處理，是公平及合乎原則的，並沒有犯錯。" } }, { "doc_id": 95, "seg_id": 69, "translation": { "en": "Furthermore, the respondent stressed that the trial judge was the trier of factual issues and that the findings he made about the credibility of PW3 were reasonable ones and ones which he was entitled to make, and therefore should not lightly be interfered with in an appeal (see HKSAR and Lee Hon Shun, CACC 626/1990).", "zh-HK": "再者，答辯人強調原審法官是案情事實方面的裁斷者。而他針對控方第三證人的誠信所作出的裁斷，是合乎情理的，也是他有權作出的，不應輕易地在上訴時受到質疑。(見HKSAR and Lee Hon Shun, CACC626/1999。)" } }, { "doc_id": 95, "seg_id": 70, "translation": { "en": "The respondent submitted that Mr. Ng himself agreed that “What was observed by PC5758, namely the girl sitting, in a riding position, on the body of the applicant, on its own did not constitute indecency”; therefore, before the applicant admitted to PW3 that he had done any indecent acts to the girl, the police (whether it was PW2 or PW3) did not have sufficient “evidence” for them to caution the applicant. Even if PW2 knew that the girl was under 16, that would not make any difference. The trial judge found that PW3 was credible and reliable and that what he learnt from PW2 were only preliminary findings, including the fact that PW2 saw the girl sitting, in a riding position, on the body of the applicant. For that reason, even if PW3 did not caution the applicant there and then, he was not in any way wrong (paragraph 85 of the Reasons for Verdict).", "zh-HK": "答辯人認為，吳‍大律師也承認「單憑警員5758的觀察，女童騎坐在申請人身上的行為不構成猥褻行為。」因此，在申請人向控方第三證人承認他曾對女童作出猥褻行為前，警方(不論是控方第二或第三證人)根本沒有足夠「證據」對申請人作出警誡。就算控方證人二知道女童未足16 歲，這也不會做成甚麼分別。原審法官已認定第三證人可信可靠，而他從第‍二證人處祇是知道初步情況，包括後者看見女童騎坐在申請人身上。因此，就算第三證人沒有即時向申請人作警誡，也並無不妥。(裁決理由書第 85段。)" } }, { "doc_id": 95, "seg_id": 71, "translation": { "en": "The respondent’s view was that even if PW3 had contravened some of the rules for the questioning of suspects, it did not follow that the applicant’s verbal admission should automatically be disqualified from being admissible evidence. In assessing its admissibility, the Court was required to consider, inter alia, whether the verbal admission was made voluntarily and whether the Court should exercise its discretion to exclude it. The result was dependant on the particular circumstances of each case (see: SJ v Lam Tat Ming [2002] 2 HKC 693, 703E; HKSAR v Hung Kong Nam & Anor, CACC 346/2006, para. 28 on p.10). The respondent submitted that since the applicant, with clear knowledge of the content of the notebook record, wrote down the declaration and appended his signature to confirm it, the trial judge’s refusal to exercise his discretion was a correct decision.", "zh-HK": "答辯人的看法是，就算控方第三證人真有觸犯發問規則的話，這也不表示申請人的「口頭招認」自動不能成為證據。在評估它的可接受性時，法庭須要考慮的包括有關的口頭招認是否出於自願，與及法庭該否運用酌情權拒絕接納它為證據。這應視乎每案的不同情況而決定(見：SJ v Lam Tat Ming [2000] 2 HKC 693, 703E；HKSAR v Hung Kong Nam & Anor, CACC346/2006，第 10 頁第 28 段)。答辯人認為，申請人他清楚知道記事冊的內容而寫下聲明及簽名作實，原審法官拒絕行使酌情權是恰當的決定。" } }, { "doc_id": 95, "seg_id": 72, "translation": { "en": "The respondent submitted that the grounds put forward by the applicant did not show that the conviction was unsafe or unsatisfactory.", "zh-HK": "答辯人認為申請人所提出的理由並未能顯示定罪有不安全或不穩妥之處。" } }, { "doc_id": 95, "seg_id": 73, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 95, "seg_id": 74, "translation": { "en": "The record in the notebook, on its own, shows that the first question which PW3 put to the applicant at the scene was whether he knew what the girl’s name was. Following that, he asked the applicant what the relationship between he and the girl was, how old the girl was and what he and the girl had done in the car. After the applicant gave his answers, PW3 arrested and cautioned him. Under these circumstances, the applicant further said that he liked the girl and that at that moment he was seized with a sudden impulse and touched her. That means the witness only cautioned the applicant once, and that was done after the arrest.", "zh-HK": "單是根據記事冊裡的記錄，第三證人在現場詢問申請人的第一條題目是他知不知道女童的名字，隨後就問申請人和女童的關係、女童的歲數及他與女童在車上做過些甚麼事情。在申請人作出回應後，第三證人便進行拘捕和作出警誡。在這情況下，申請人再回應說他是因一時喜歡了女童才情不自禁地摸對方。那即是說，證人祇對申請人作了一次警誡，更是在拘捕後才作出。" } }, { "doc_id": 95, "seg_id": 75, "translation": { "en": "However, when PW3 was in the witness box he provided a different version of the events. He said that after he arrived at the scene, he spent 5 to 6 minutes on preliminary questioning of the applicant. He asked the applicant how he came to know the girl and asked him for his background information. PW3 said that he did not caution the applicant right at the beginning of this process because he needed to understand what had happened. He considered that just the information he received from PW2 was not enough to make it necessary to caution the applicant, and that he needed to see what explanation the applicant could provide.", "zh-HK": "在作供時，第三證人卻說出了另一個版本。他說在他到達現場後，他用了5、6 分鐘對申請人先進行了初步查問。他問過申請人是如何認識女童與及申請人的背景資料。第三證人說他沒有一開始就去警誡申請人是因為他需要去了解事件，他認為單憑第二控方證人向他所說的，仍不足夠支持警誡的需要，他亦須要看看申請人有甚麼解釋。" } }, { "doc_id": 95, "seg_id": 76, "translation": { "en": "PW3 said that what recorded on page 76 of his notebook were the questions he asked after he cautioned the applicant and the answers given by the applicant. He said he forgot to write down the part about the caution, but he stressed that he asked those questions only after he cautioned the applicant. What was recorded in the notebook were not the questions he asked during the preliminary investigation stage. He stated that he recorded in pol.154 his preliminary investigation. When the applicant said that he had “touched” the girl, he immediately cautioned the applicant and then asked him the questions recorded in the notebook.", "zh-HK": "第三證人指出，記事冊裡第 76頁上的記錄是他在警誡申請人後所提出的問題和申請人的回應。證人說他當時漏寫了警誡的部份，但他強調，他是在警誡申請人後才發問那些問題，記事冊所記錄的不是他在初步調查時所問過的問題。證人指出，他在Pol. 154裡就記錄了他的初步調查而當申請人說到他「摸過」女童的時候，他便隨即警誡申請人，然後問了寫在記事冊裡的問題。" } }, { "doc_id": 95, "seg_id": 77, "translation": { "en": "In this connection, Deputy Judge Chan made the following comments (see page 15 of the bundle):", "zh-HK": "在這方面，陳‍法官有以下的看法(見綜卷第 15頁) ：" } }, { "doc_id": 95, "seg_id": 78, "translation": { "en": "“85.I am satisfied that PW3’s evidence is credible and reliable. PW3 gave evidence in a straight forward manner and did not hold back anything which he knew and saw. I find that when PW3 arrived at the scene, he received some preliminary information from PW2, including the fact that PW2 saw X sitting, in a riding positing, on the body of the defendant, who was sitting on his seat. Instead of cautioning the defendant instantly, PW3 chose to carry out [preliminary?] questioning of the defendant. There was nothing wrong in handling the matter in this way. To proceed in this way, PW3 did not mean to deliberately refrain from cautioning the defendant in order that the defendant would not be put on guard and therefore might make an admission.”2", "zh-HK": "「85.本席信納控方證人三的證供是可信、可靠，控方證人‍三作證時以簡單直接的態度作證，對他所知所聞毫無隱瞞，法庭認為控方證人三到場後，從控方證人二初步了解案情，包括控方證人二看見X騎於坐在座位的被告身上，控方證人三不即時警誡被告人，而選擇對被告人作[初?]步調查的處理方式並無不妥，控方證人三的處理方式並不是故意不警誡被告，使被告人在沒有防範下作出招認。」" } }, { "doc_id": 95, "seg_id": 79, "translation": { "en": "87.…… I think that certain omissions in the notebook concerning, for example, times, places and the contents of the caution, must be viewed in the light of the circumstances in existence at the material time. At that time it was dark at the scene, PW3 had to rely on the light from the electric torch. After he cautioned the defendant, he asked him questions and there and then recorded the answers given by the defendant. It was under these circumstances and for this reason that PW3 omitted to record certain times, places and contents of the caution. If what the defence alleged is true, i.e. PW3 did not make the record in question at the scene, then when PW3 subsequently fabricated the record —— he certainly was fully aware of the importance of cautioning the defendant —— why did he not put down on page 76 the time, place and the contents of the caution? The Court considers that PW3’s evidence that at the scene he shone the torch on the notebook and that in his way [he] read the record made at the scene and signed is true, credible and reliable. The Court believes that because of the condition of the scene of crime, PW3 knew very well that after he returned to the police station he needed to make a complete record of the process of taking the cautioned statement. To deal with the matter in the way PW3 did, namely not making a full and complete record of the process of taking the cautioned statement at the scene, was reasonable and should be free from any criticism.”", "zh-HK": "87.…… 法庭認為記事冊的一些遺漏，如時間、地點、警誡詞內容是吻合控方證人三當時於現場黑暗的情況下以電筒照明，於警誡被告後，對被告發問問題及被告所作的答案作出即時記錄的情況。亦因此控方證人三便遺漏了記錄時間、地點、警誡詞內容等資料，若控方證人三如辯方所指，他不是在現場作出有關記錄，那控方證人三於其後捏造記錄時，他是必然清楚知道警誡被告人的重要性，那控方證人三又為何不會於第 76 頁加進他警誡被告人的時間、地點及警誡詞等等內容。法庭認為控方證人三描述他是在現場以電筒照明記事冊，閱讀現場的記錄及簽署是真實可信及可靠，法庭認為按現場的情況，控方證人三是清楚知道回署後他仍需要安全補錄警誡口供的過程。按方證人三不於現場完全整個補錄警誡供詞的過程的處理手法是合乎情理，無可批評。」" } }, { "doc_id": 95, "seg_id": 80, "translation": { "en": "Our view is that on the face of it, the notebook record is a more logical description of the sequence of events: PW3 asked about the name of the girl first; then the relationship between the two people and then the age of the girl; when the applicant said that he had taken out his penis to let the girl touch it, PW3 immediately cautioned him.", "zh-HK": "本庭的看法是表面看來記事冊裡的記述是一個過程較為合乎邏輯的描述 ：第三證人先問女童的名字，再問雙方關係，進而問及女童的年紀，到申請人說出曾拿出陽具給女童撫摸時，第三證人立即施行警誡。" } }, { "doc_id": 95, "seg_id": 81, "translation": { "en": "If what happened was not like this, if the sequence was that the witness had already asked the applicant some questions earlier, and that when the applicant said he had touched the girl the witness cautioned him; but after cautioning him, the witness again asked the applicant whether he knew what the girl’s name was, what the relationship between the two of them was, how old the girl was and what they had done in the car; and then when the applicant said that he had touched the girl’s breasts and lower part and had taken out his penis, the witness put him under arrest and again cautioned him, such an account actually renders the contents of the notebook a bit far-fetched. The witness said that he forgot to write down the verbal admission which led to the first caution, and that he also forgot to write down the caution. From an objective point of view, this is rather hard to believe. The challenge made by the defence directed against the witness’s explanation cannot be said to be groundless.", "zh-HK": "如果情況不是這樣，原來是證人事先已問過申請人問題，到申請人說有摸過女童後他便作出警誡，但在警誡後，他又再重新問及申請人知不知道女童的名字、他們的關係、女童的年歲及申請人在車上做過甚麼；又當申請人說出有摸過女童胸部及下體，亦曾拿出陽具的事情後，證人便進行拘捕及再施行警誡。這個叙述反而會令記事冊的內容顯得牽強。證人說他是漏寫了導致第‍一次警誡的口頭招認，也漏寫了警誡詞，客觀來說，這是頗難令人信服的。辯方針對證人的解釋而提出的質疑，不能說是全無道理的。" } }, { "doc_id": 95, "seg_id": 82, "translation": { "en": "It was suggested that the witness thought it was necessary to immediately caution the applicant only when he heard the applicant admit that he had touched the girl, but actually long before that he already learnt from PW2 that PW2 saw the girl sitting on the applicant’s body. We think that in view of what was going on at that time, it would have been fairer and more proper if PW3 had cautioned the applicant first before he questioned him (see R v Nelson and Rose and R v Hawkins, supra).", "zh-HK": "如果說證人是聽到申請人承認有摸過女童所以才覺得需要立刻施行警誡的話，他其實已一早知道第二證人說他看見女童曾坐在申請人身上的。本庭認為，考慮到當時的情況，第三證人在發問前先向申請人提出警誡會是較為公平及恰當的做法。(見前文R v Nelson and Rose及R v Hawkins。)" } }, { "doc_id": 95, "seg_id": 83, "translation": { "en": "The question is that if the trial judge should have rejected PW3’s evidence or should have ruled that the admission in question was inadmissible, then was the rest of the prosecution evidence insufficient to support the conviction? In our judgement, the answer is that it was not.", "zh-HK": "問題是，如果原審法官不應接納第三證人的證供，或應裁定有關的招認不可成為證據，控方的其他證據是否就不足以支持控罪？本庭認為答案是否定的。" } }, { "doc_id": 95, "seg_id": 84, "translation": { "en": "Firstly, we agree with the respondent’s submission on the principles about how we are to understand the girl’s evidence (see para. 25, supra). What the girl said in the video evidence is not a written statement given by a witness to the police under usual circumstances but was the evidence in chief of the girl. Under the special circumstances of this case, the trial judge was entitled to judge whether the content of the video evidence was true or false. After seeing and hearing the girl give evidence, Deputy Judge Chan made meticulous, objective and fair analysis of her evidence and finally rejected the explanation she made in her attempt to deny the truth of her video evidence.", "zh-HK": "第一，本庭同意答辯方對應如何理解女童證據方面的原則(見上文第 25段)。女童在錄影證供時的敍述，不是一般的證人對警方所作的書面供詞，這是女童證供的主問部份。原審法官有權在本案獨特的情況下去評估錄影證供的內容是真是假。在親自見過及聽過女童的作供後，陳‍法官有很小心、客觀及持平地分析了女童的證供，最後否決了她試圖推翻錄影證供內容而所作的解釋。" } }, { "doc_id": 95, "seg_id": 85, "translation": { "en": "What is important is that Deputy Judge Chan clearly pointed out that it was dangerous to rely solely on the girl’s video evidence as the basis of the conviction. Therefore, Deputy Judge Chan fully understood the strength and weakness in the girl’s evidence. The verdict he gave was by no means rashly given.", "zh-HK": "重要的是，陳‍法官已清楚說明，單靠女童的錄影證供作為定罪的基礎是危險的。因此，陳‍法官是完全理解到女童證供的強弱，他的裁決絕非是輕率的。" } }, { "doc_id": 95, "seg_id": 86, "translation": { "en": "Secondly, what PW2 saw was regarded by Deputy Judge Chan as evidence which could support part of the girl’s evidence; and what PW2 saw was that in the car the girl was sitting on the applicant, with their arms around each other’s body.", "zh-HK": "第二，第二證人所目擊的事情被陳‍法官視為支持女童證供的一部份。第二證人所見到的是，在車裡女童曾坐在申請人的懷中並互相環抱著。" } }, { "doc_id": 95, "seg_id": 87, "translation": { "en": "Deputy Judge Chan accepted what PW2 observed as true and further, he made the following analysis (see page 36 of the bundle):", "zh-HK": "陳‍法官一方面接納了第二證人的觀察為事實，也進一步作出以下的分析(見綜卷第 36頁) :" } }, { "doc_id": 95, "seg_id": 88, "translation": { "en": "“178.Furthermore, PW2 appeared at the scene only at a later stage, the Court considers that it is not strange at all that PW2 did not see what contacts there were between PW1 and the defendant at the earlier stage, i.e. before PW2 arrived. However, what PW2 saw did support the allegation that the defendant and PW1 had intimate contacts in the car. Admittedly, the action which PW2 saw, namely PW1 sitting on the defendant’s body, in a riding position, with her back towards the windscreen of the private car, falls short of being indecent, but it strongly supports the allegation that the defendant and X, i.e. PW1 did have intimate contacts in the car……” [emphasis added]", "zh-HK": "「178.再者，控方證人二出現於現場亦是較後期的時間，法庭認為控方證人二看不見較早前，即控方證人二到場前控方證人跟被告人的接觸是毫不出奇。但控方證人二所見確是支持被告人跟控方證人一於車廂內是有親密接觸，誠然控方證人二所見，控方證人一當時背向私家車擋風玻璃，騎在被告身上，這行為尚未達至猥褻程度，但卻強烈支持被告人跟X即控方證人一在車內是確是有親密的接觸……」[本庭強調]" } }, { "doc_id": 95, "seg_id": 89, "translation": { "en": "Based on this conclusion, Deputy Judge Chan found that the intimate contacts between them included the applicant touching the breasts and the lower part of the girl and the applicant taking out his penis for the girl to touch it and kiss it.", "zh-HK": "基於這個結論，陳‍法官裁定他們的親密接觸包括了申請人曾觸摸女童胸部及下體，申請人亦曾取出陽具讓女童觸摸及親吻。" } }, { "doc_id": 95, "seg_id": 90, "translation": { "en": "We believe that PW3’s evidence and the applicant’s admission were a separate and discrete unit. Even if it was removed, there were the girl’s evidence and PW2’s evidence, which could be the basis of Deputy Judge Chan’s analysis and findings, and could support the verdict of guilty.", "zh-HK": "本庭認為，第三證人的證供與及申請人的招認是一‍獨立部份，就算剔除了，以陳‍法官的分析及裁決，根據女童及第二證人的證供已可支持定罪的裁決。" } }, { "doc_id": 95, "seg_id": 91, "translation": { "en": "We agree with the respondent’s submission that in considering whether the verdict in this case was safe, the Court should have regard to the undisputed facts which formed the setting of this case: Having had dinner in Yaumatei, the applicant drove the girl to the water catchment of Shing Mun Reservoir, where there was no street light and at the material time, there was no pedestrian either. Before the police constable arrived, they had been there for about half an hour. In order to see, the constable had to turn on his electric torch. PW2 saw that the girl was sitting on the applicant, with the applicant embracing her. Once she was seen, she got away from him and sat on the passenger seat.", "zh-HK": "本庭同意答辯人在陳詞時指出，在考慮本案的判決是否穩妥時，法庭應該注意到本案沒有爭議的背景情節 ：在油麻地晚飯後，申請人駕駛與女童去了荃灣城門水塘引水道，那處是沒有街燈的地方，當時也沒有行人出現，他們在那裡度過了約半小時警方才到場，警員要用電筒才可照明，而第二證人見到女童坐在申請人懷，她被發現後便立即分開坐回乘客坐位。" } }, { "doc_id": 95, "seg_id": 92, "translation": { "en": "We hold that when the evidence is viewed in this light, there is nothing unreasonable or unsafe in Deputy Judge Chan’s conclusion.", "zh-HK": "本庭認為，從這框架去考慮有關的證供，陳‍法官的結論並無不合常理和不穩妥之處。" } }, { "doc_id": 95, "seg_id": 93, "translation": { "en": "We do not accept Mr. Ng’s submission that as a result of the girl’s denying the truth of her evidence in chief, it was impossible for the defence to conduct a fair cross-examination. The record shows that the defence counsel had cross-examined the girl extensively on issues including the relationship between the girl and the applicant, what was done on that night, what happened after the police came and the questioning of her by the police. Deputy Judge Chan did not in any way restrain the defence from cross-examining the girl. As to how the defence counsel should conduct his cross-examination, what questions should be put, what details should be clarified, it was for him to make his professional decisions. Mr. Ng complained that because the girl “went back on what she said”, the defence was thrown into a dilemma and consequently the trial was unfair. We find that this complaint is not substantiated.", "zh-HK": "本庭也不接納吳‍大律師指因女童推翻主問口供導致辯方不可能進行公平盤問。記錄顯示，辯方大律師有對女童進行過詳細的盤問，題目包括女童與申請人的關係，當晚發生的事情，警察到場後的情況及警方對她的問話。辯方對女童的盤問並沒有受到陳‍法官的任何限制。至於辯方大律師應如何去盤問，提出甚麼問題，及要澄清甚麼細節，這是他的專業決定。本庭認為吳‍大律師指辯方因女童“反口”而陷入進退維谷引致審訊變得不公平，這觀點不能成立。" } }, { "doc_id": 95, "seg_id": 94, "translation": { "en": "In our judgment, the conviction is not unsafe.", "zh-HK": "本庭認為定罪並無不穩妥之處。" } }, { "doc_id": 95, "seg_id": 95, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 95, "seg_id": 96, "translation": { "en": "For the above reasons, we dismiss the application for leave to appeal against conviction.", "zh-HK": "基於以上原因，本庭駁回定罪上訴許可申請。" } }, { "doc_id": 95, "seg_id": 97, "translation": { "en": "Mr. Alex Ng, instructed by Cheung & Yip, for the Applicant.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員李運騰代表香港特別行政區。" } }, { "doc_id": 95, "seg_id": 98, "translation": { "en": "Mr. Alex Lee, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent.", "zh-HK": "申請人：由張達成葉祺智律師事務所轉聘吳政煌大律師代表申請人。" } }, { "doc_id": 96, "seg_id": 1, "translation": { "en": "The two applicants Lan Xianxin (Lan) and Li Qichang (Li) pleaded guilty before District Judge C. P. Pang (the trial judge) to one charge of importing a controlled chemical not under and in accordance with a licence and one charge of possession of a controlled chemical respectively. Lan and Li were respectively sentenced to 4 years 8 months’ and 2 years 8 months’ imprisonment.", "zh-HK": "兩名申請人蘭先炘（蘭）和黎其昌（黎）在區域法院法官彭中屏（原審法官）席前分別承認一項並非根據與按照牌照的規定而輸入受管制化學品罪和管有受管制化學品罪。蘭和黎分別被判入獄4年8個月和2年8個月。" } }, { "doc_id": 96, "seg_id": 2, "translation": { "en": "Both applicants were aggrieved by the sentences, and applied for leave to appeal against sentence. Li’s application is out of time, so he also applied to the Court for an extension of time. After hearing, this Court dismissed both applicants’ applications for leave to appeal against sentence. Our reasons are as follows.", "zh-HK": "兩名申請人都不服判刑，提出申請，要求獲准就判刑上訴。黎的申請已過期，因此他同時要求法庭延展他的申請期限。經聆訊後，本庭駁回兩名申請人的判刑上訴許可申請。以下是本庭的判案理由。" } }, { "doc_id": 96, "seg_id": 3, "translation": { "en": "Prosecution Case", "zh-HK": "控方案情" } }, { "doc_id": 96, "seg_id": 4, "translation": { "en": "In the afternoon on 1st November 2013, Lan arrived at the Hong Kong International Airport on a flight from Cairo, Egypt via Doha. He collected two suitcases and took an Airbus to the Sheung Shui MTR Station, where another male (Wu Yangwang) (transliteration) approached him and chatted with him. Lan gave one of the suitcases to Wu Yangwang, and the two went to the taxi stand nearby. They put the two suitcases into the taxi boot, and Wu Yangwang got on the taxi, while Lan took the MTR to Lo Wu.", "zh-HK": "2013年11月1日下午，蘭乘坐航機從埃及開羅經杜哈抵達香港國際機場。他拿取了兩件行李，登上機場巴士前往上水港鐵車站。在上水港鐵車站，有另一男子（吳仰旺）走近蘭並和他聊天。蘭將其中一件行李交了給吳仰旺後，兩人前往附近的士站。他們將兩件行李放進的士車尾箱後，吳仰旺登上的士，而蘭則乘坐港鐵前往羅湖。" } }, { "doc_id": 96, "seg_id": 5, "translation": { "en": "The taxi Wu Yangwang took stopped at the Cambridge Plaza, Sheung Shui. He collected the two suitcases, and walked to the lift lobby of the Cambridge Plaza. Then, Li approached Wu Yangwang, and the two of them each took one suitcase and left.", "zh-HK": "吳仰旺乘坐的的士在上水劍橋廣場停下。他提取了兩件行李後，步行前往劍橋廣場的電梯大堂。其後黎走近吳仰旺後兩人各自拿起一件行李離開。" } }, { "doc_id": 96, "seg_id": 6, "translation": { "en": "Customs Officer(s) who had been keeping the whole course of events under surveillance intercepted Li and Wu Yangwang, and opened for inspection in their presence the two suitcases they were carrying. Each suitcase contained 24 bags of tablets in tinfoil packets disguised in Chinese tea leaf packages.", "zh-HK": "全程監視事件發展的關員截停黎和吳仰旺，並在他們面前打開他們攜帶的兩件行李檢查。每件行李內各有24袋以中國茶葉包裝作掩飾的錫紙包片劑。" } }, { "doc_id": 96, "seg_id": 7, "translation": { "en": "Under caution, Li denied ownership of the suitcase(s) in question, and said that (he) did not know Wu Yangwang. However, Li’s mobile phone contained photographs showing some medicine bottles with outer labels of pseudoephedrine and a large quantity of tinfoil packets.", "zh-HK": "警誡下，黎否認擁有涉案行李，亦表示不認識吳仰旺。黎的手提電話內卻有一些照片，照片顯示一些貼有假麻黃碱外層標籤的藥用瓶和大量錫紙包。" } }, { "doc_id": 96, "seg_id": 8, "translation": { "en": "Lan was also arrested at the Lo Wu Departure Hall. Under caution, he claimed to be in the automobile parts business, and admitted to having returned to Hong Kong from Egypt earlier.", "zh-HK": "蘭亦在羅湖離境大堂被拘捕。警誡下，他聲稱從事汽車零件生意，並承認較早前由埃及返港。" } }, { "doc_id": 96, "seg_id": 9, "translation": { "en": "During the interview with the Customs Officers, Lan said that when he was returning to Hong Kong from Egypt, he got the two suitcases in question from an unknown foreigner outside the Egypt airport. He admitted to bringing the two suitcases back to Hong Kong for a remuneration of 1,000 renminbi. He also said that he later received instruction to go to Sheung Shui and to hand the suitcases to Wu Yangwang, then headed to Lo Wu, planning to leave Hong Kong.", "zh-HK": "和關員會面時，蘭指他由埃及返港時，在埃及機場外從一名不認識的外籍人士取得涉案兩件行李。蘭承認將該兩件行李帶返香港以取得1,000元人民幣的酬勞。蘭亦指他其後接獲指示前往上水將行李交給吳仰旺後便前往羅湖，打算離開香港。" } }, { "doc_id": 96, "seg_id": 10, "translation": { "en": "On the other hand, Li said that a friend named Xiao Yong Ge (transliteration) told him to pick up something from a person named Xiao Wu (transliteration), and that he was arrested while assisting Xiao Wu in carrying the suitcase(s). Li denied knowledge of the nature of the item(s) inside the suitcase(s).", "zh-HK": "黎則表示有一名叫小勇哥的朋友吩咐他從一名叫小吳的人處拿取一些物品，而當他協助小吳拿行李時卻被捕。黎否認知悉行李內物件的性質。" } }, { "doc_id": 96, "seg_id": 11, "translation": { "en": "The suitcase that Li took contained 24 bags of tablets, weighing 25.82 kilogrammes and containing 5.63 kilogrammes of pseudoephedrine. The two suitcases in question contained 48 bags of tablets, weighing 51.48 kilogrammes and containing 11.89 kilogrammes of pseudoephedrine.", "zh-HK": "黎拿走的行李內的24袋片劑共重25.82公斤，內含5.63公斤假麻黃碱。涉案兩件行李內48袋片劑則共重51.48公斤，內含11.89公斤假麻黃碱。" } }, { "doc_id": 96, "seg_id": 12, "translation": { "en": "According to the testimony of the expert witness for the prosecution, pseudoephedrine is capable of being used in the manufacture of “ice”, and every 10 kilogrammes of pseudoephedrine can produce about 5.5 kilogrammes of “ice”. Therefore, the 5.63 kilogrammes and 6.26 kilogrammes contained in the two suitcases in question can produce 3.1 kilogrammes and 3.4 kilogrammes of “ice” respectively.", "zh-HK": "根據控方專家證人的證供，假麻黃碱可以用作製造“冰毒”，每10公斤的假麻黃碱可製成大約5.5公斤“冰毒”。因此，涉案兩個行李內的5.63公斤和6.26公斤可分別製成3.1公斤及3.4公斤“冰毒”。" } }, { "doc_id": 96, "seg_id": 13, "translation": { "en": "However, the expert agreed that the above statement was based on an assumption that the refining process would be 100% successful. Hence, the actual quantity of “ice” that could have been manufactured from the pseudoephedrine in question is unknown.", "zh-HK": "但專家同意上述說法是建基在百分百成功提煉的假設，故實際上涉案假麻黃碱能製造出“冰毒”的分量屬未知之數。" } }, { "doc_id": 96, "seg_id": 14, "translation": { "en": "Pseudoephedrine is a controlled substance. To prevent its use for illegal purposes, the Ordinance provides for illegal importation and possession of pseudoephedrine the maximum penalty of a fine of $1 million and imprisonment for 15 years, for the obvious reason that pseudoephedrine is a raw material in the manufacture of “ice”.", "zh-HK": "假麻黃碱是受管制物質，要避免它們作非法用途，條例規定非法輸入及管有假麻黃碱的最高刑罰是罰款100萬元及監禁15年，原因明顯是假麻黃碱是製造“冰毒”的原材料。" } }, { "doc_id": 96, "seg_id": 15, "translation": { "en": "Lan admitted that he knew that the two suitcases in question contained pseudoephedrine, and believed that the pseudoephedrine can be used in the manufacture of dangerous drugs. However, he said that he did not know the exact use of them, and did not know, nor had grounds to believe, that they were to be used in the manufacture of “ice”.", "zh-HK": "蘭承認自己知悉涉案兩個行李內載有假麻黃碱，亦相信該些假麻黃碱可以用作製毒。但他表示不知道它們的確實用途，更不知道亦沒有理由相信它們是用作製造“冰毒”。" } }, { "doc_id": 96, "seg_id": 16, "translation": { "en": "Li also admitted that he knew that the suitcase he carried contained pseudoephedrine, and agreed that he had grounds to believe that it would be used in illegal manufacture of dangerous drugs.", "zh-HK": "黎亦承認自己知悉所攜帶的行李內有假麻黃碱，亦同意他有理由相信它是會用作非法生產毒品。" } }, { "doc_id": 96, "seg_id": 17, "translation": { "en": "The Trial Judge’s Reasons for Sentence", "zh-HK": "原審法官的判刑理由" } }, { "doc_id": 96, "seg_id": 18, "translation": { "en": "The trial judge rejected Lan’s claim that the pseudoephedrine in the suitcases was for feeding chicken. The trial judge found that the evidence was insufficient to prove that Lan knew that the dangerous drugs manufactured from pseudoephedrine would have been “ice”, but the reasonable inference was that Lan did know that the pseudoephedrine contained in the suitcases was for the manufacture of dangerous drugs. In fact, counsel representing Lan at the trial accepted that Lan knew that the pseudoephedrine he imported into Hong Kong was capable of being used in the manufacture of dangerous drugs. The trial judge noted that Lai admitted that he had reasonable grounds to believe that the substance he carried was for the manufacture of dangerous drugs. He considered transportation or possession of substances capable of being used in the manufacture of dangerous drugs an extremely serious offence. He cited HKSAR v Ho Ka Ming (transliteration) （香港特別行政區訴何家銘）(CACC425/2009), and with reference to that case, regarded the defendant’s understanding of the nature of the substance in question an important factor in the consideration of sentence.", "zh-HK": "原審法官不接納蘭所指有關行李內的假麻黃碱是用作餵雞。原審法官認為證據不足以證明蘭知悉用假麻黃碱製造的毒品會是“冰毒”，但合理的推論是蘭知悉行李內的假麻黃碱是用作非法生產毒品。事實上，原審時代表蘭的大律師同意蘭是知道他輸入香港的假麻黃碱是可以用來製造毒品的。原審法官指出黎承認自己有合理理由相信他攜帶的物質是用作生產危險藥物。原審法官認為運送或管有可用作非法生產危險藥物的物質是極為嚴重的罪行。原審法官援引香港特別行政區訴何家銘（CACC425/2009）案，並根據該案例認為被告人對涉案物質的性質有何認知是判刑的其中一個重要考慮因素。" } }, { "doc_id": 96, "seg_id": 19, "translation": { "en": "The trial judge noted that Li was not involved in the importation of the pseudoephedrine in question, and while he was in possession of the pseudoephedrine, he only had reasonable grounds to believe, instead of knowing, that the pseudoephedrine would be used in the manufacture of dangerous drugs. Further, he was younger than Lan. Hence, his culpability was lower than that of Lan.", "zh-HK": "原審法官指出黎沒有參與輸入涉案的假麻黃碱，而他管有該些假麻黃碱時，只是有合理理由相信而非明知該些假麻黃碱會用作非法生產危險藥物，加上他較蘭年輕，故其罪責較蘭的罪責為輕。" } }, { "doc_id": 96, "seg_id": 20, "translation": { "en": "The trial judge stressed that the 11.89 kilogrammes of pseudoephedrine which Lan imported for financial gain posed great harm to the society.", "zh-HK": "原審法官強調蘭為了金錢得益而輸入的11.89公斤假麻黃碱，對社會的禍害甚大。" } }, { "doc_id": 96, "seg_id": 21, "translation": { "en": "The trial judge identified a proper starting point of 7 years’ imprisonment in respect of Lan.", "zh-HK": "原審法官認為針對蘭的適當量刑基準應為7年監禁。" } }, { "doc_id": 96, "seg_id": 22, "translation": { "en": "The trial judge pointed out that the pseudoephedrine in Li’s possession, although only in the amount of 5.63 kilogrammes, was in a quantity that was capable of being manufactured into 3.1 kilogrammes of “ice”. Having considered that Li was only concerned with half of the whole lot of pseudoephedrine, the trial judge identified a proper starting point of 4 years’ imprisonment in respect of Li.", "zh-HK": "原審法官指出黎管有的假麻黃碱，雖然只有5.63公斤，但該分量的假麻黃碱可以生產約3.1公斤“冰毒”。考慮到和黎有關的假麻黃碱只有全部假麻黃碱的一半分量，原審法官認為適用於黎的量刑基準為4年。" } }, { "doc_id": 96, "seg_id": 23, "translation": { "en": "Since both applicants pleaded guilty, the trial judge reduced the sentences by one-third, reaching 4 years 8 months and 2 years 8 months respectively.", "zh-HK": "原審法官因為兩名申請人都認罪，故將刑期分別扣減三分一至4年8個月和2年8個月。" } }, { "doc_id": 96, "seg_id": 24, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 96, "seg_id": 25, "translation": { "en": "Mr P.Y. Lo, counsel for the applicants, considered that the starting point of 7 years adopted by the trial judge in respect of Lan was manifestly excessive. Mr Lo stressed that Lan had only imported controlled chemicals against the law, and the evidence was insufficient to prove that such controlled chemicals would definitely be used in the manufacture of “ice”.", "zh-HK": "代表申請人的羅沛然大律師認為原審法官採納針對蘭的7年量刑基準屬明顯過高。羅大律師強調蘭只是違例輸入一些受管制化學品，而證據不足以證明該些受管制化學品必會用作製造“冰毒”。" } }, { "doc_id": 96, "seg_id": 26, "translation": { "en": "Mr Lo emphasized that there was no evidence to prove the actual intended use of the chemicals imported by Lan, and there was also no evidence showing that the batch of chemicals would be exported out of Hong Kong. Therefore, the trial judge should not have used the quantity of “ice” that could have been manufactured from the chemicals in question as a basis in passing sentence, and could only consider the potential risks in the possibility of such chemicals being used in the manufacture of “dangerous drugs”.", "zh-HK": "羅大律師強調沒有證據證明蘭輸入的化學品實際上會如何使用，亦沒有證據顯示該批化學品會輸出香港。因此，原審法官不應以涉案的化學品能生產的“冰毒”份量作為量刑的基礎，而只能考慮該些化學品有可能被用作生產危險 “毒品”的潛在風險。" } }, { "doc_id": 96, "seg_id": 27, "translation": { "en": "In the above circumstances, Mr Lo took the view that the starting point of 7 years adopted by the trial judge in respect of Lan was excessive.", "zh-HK": "在上述情況下，羅大律師認為原審法官採納針對蘭的7年量刑基準過於嚴厲。" } }, { "doc_id": 96, "seg_id": 28, "translation": { "en": "Mr Lo submitted that in similar cases, the Court has adopted much lower starting points than the trial judge. In particular, Mr Lo cited HKSAR v Cao Yuhui & others (DCCC 823/2013), HKSAR v Xiao Chunming (DCCC 182/2014) and HKSAR v Wong Yi Ching (transliteration) （香港特別行政區訴王苡靜） (DCCC 917/2013) in support of his contention. Mr Lo stressed that in Cao Yuhui, the defendant imported about 6 kilogrammes of pseudoephedrine, and the Court adopted a starting point of 3 years. In Xiao Chunming, the defendant imported about 10 kilogrammes of pseudoephedrine, and the Court adopted a starting point of 4½ years. In Wong Yi Ching, the defendant imported about 6 kilogrammes of pseudoephedrine, and the Court also adopted a starting point of just 4½ years. Therefore, Mr Lo considered that the appropriate starting point for Lan should be 6 to 6½ years.", "zh-HK": "羅大律師指在同類案件，法庭採納的量刑基準較原審法官所採納的為低。羅大律師特別援引HKSAR v Cao Yuhui & others (DCCC 823/2013)、HKSAR v Xiao Chunming (DCCC 182/2014)和香港特別行政區訴王苡靜（DCCC 917/2013）等案支持其立場。羅大律師強調Cao Yuhui案的被告人輸入約6公斤的假麻黃碱，法庭採納的量刑基準為3年。Xiao Chunming案的被告人輸入約10公斤的假麻黃碱，法庭採納的量刑基準為4年半；而王苡靜案的被告人輸入約6公斤假麻黃碱，法庭採納的量刑基準亦只是4年半。因此，羅大律師認為適用於蘭的量刑基準應為6年至6年半。" } }, { "doc_id": 96, "seg_id": 29, "translation": { "en": "Mr Lo stressed that Li was only asked by a friend to help Wu Yangwang carry the suitcase(s), and did not benefit from it. Mr Lo submitted that the culpability of Li was much lower than that of Lan, hence the starting point of 4 years adopted by the trial judge for him was also excessive.", "zh-HK": "羅大律師強調黎只是受朋友所托協助吳仰旺拿行李，並沒有因而獲利。羅大律師指黎的罪責遠較蘭的輕，因此原審法官施用於他的4年量刑基準亦屬過於嚴厲。" } }, { "doc_id": 96, "seg_id": 30, "translation": { "en": "Mr Lo reiterated that the quantity of “dangerous drugs” that could have been manufactured from the pseudoephedrine in question is unknown. Therefore, the making of an assumption that the 5.63 kilogrammes of pseudoephedrine in Li’s possession was capable of being manufactured into about 3.1 kilogrammes of “ice”, and from that, stating that the offence committed by Li posed great potential harm to the society in passing sentence, appears to be unfair to Li and to have exaggerated his culpability.", "zh-HK": "羅大律師重申涉案的假麻黃碱可以製造“毒品”份量多少屬未知之數。因此，以黎管有的5.63公斤假麻黃碱可以生產約3.1公斤“冰毒”為假定，並因而指黎的罪行對社會潛在禍害極大來判刑，對黎不公及有誇大他的罪責之嫌。" } }, { "doc_id": 96, "seg_id": 31, "translation": { "en": "Mr Lo considered that the appropriate starting point for Li should be 3 years.", "zh-HK": "羅大律師認為適用於黎的量刑基準應為3年。" } }, { "doc_id": 96, "seg_id": 32, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 96, "seg_id": 33, "translation": { "en": "The expert witness testified that the 11.89 kilogrammes of pseudoephedrine imported by Lan was capable of being manufactured into about 6.5 kilogrammes of “ice”, and the 5.63 kilogrammes of pseudoephedrine in the possession of Li was capable of being manufactured into about 3.1 kilogrammes of “ice”.", "zh-HK": "專家證人的證供顯示蘭輸入的11.89公斤假麻黃碱可以製成約6.5公斤“冰毒”，而黎管有的5.63公斤假麻黃碱則可以製成約3.1公斤“冰毒”。" } }, { "doc_id": 96, "seg_id": 34, "translation": { "en": "Had the two applicants found to be in possession of 6.5 kilogrammes or 3.1 kilogrammes of “ice” for the purpose of illegal trafficking, they would have faced sentences far exceeding 20 years’ imprisonment.", "zh-HK": "假若兩名申請人被裁定管有6.5公斤或3.1公斤的“冰毒”作非法販運用途，他們會面對的判刑會遠超過20年監禁。" } }, { "doc_id": 96, "seg_id": 35, "translation": { "en": "Having said that, the two applicants did not commit the offence of “trafficking in a dangerous drug”, but they either knew or believed that the pseudoephedrine they had imported or possessed were for illegal manufacture of dangerous drugs, albeit not necessarily knowing that the dangerous drug so manufactured would have been “ice”. In fact, this Court finds that considering the background of this case, apart from being used in the manufacture of dangerous drugs, there can be no other legitimate use of the pseudoephedrine in question. The trial judge had already dealt with the applicants most generously in finding that they did not necessarily know that the pseudoephedrine in question was for the manufacture of “ice”.", "zh-HK": "當然兩名申請人並非犯了“販毒”罪，但他們是知悉或相信他們輸入或管有的假麻黃碱是用作非法製造毒品的，雖然他們不一定知道製成的毒品是“冰毒”。事實上，本庭認為以案件的背景而言，除了用作製毒外，涉案的假麻黃碱不會有任何其他正當用途。原審法官認為申請人不一定知道涉案的假麻黃碱是用作製造“冰毒”已是對他們極為寬鬆的處理方法。" } }, { "doc_id": 96, "seg_id": 36, "translation": { "en": "The defendants in Cao Yuhui, Wong Yi Ching and Xiao Chunming had imported various quantities of pseudoephedrine, and all of them denied knowledge that the pseudoephedrine would have been used for the manufacture of dangerous drugs, and the trial judges sentenced them on such basis. Neither do those cases provide guidance to, nor are they binding on this Court, nor do they support Mr Lo’s contention.", "zh-HK": "Cao Yuhui案、王苡靜案和Xiao Chunming案的被告人輸入不同份量的假麻黃碱，但該些被告人都聲稱不知悉假麻黃碱會用作製毒，而原審法官亦是以該基礎判刑。該些案件對本庭沒有任何指導性或約束力，亦不支持羅大律師的立場。" } }, { "doc_id": 96, "seg_id": 37, "translation": { "en": "This Court considers that any person importing or in possession of raw materials capable of being used in the manufacture of dangerous drugs, same as those trafficking in a dangerous drug, should be given a heavy sentence, since such crimes cannot otherwise be deterred. The Legislature has also recognized the seriousness of the crime of importation and possession of pseudoephedrine, and provided for a maximum penalty of a fine of $1 million and imprisonment for 15 years.", "zh-HK": "本庭認為任何人輸入或管有可用作製造毒品的原料都應和販運毒品一樣被重判，否則不能阻嚇有關罪行。立法者亦是認定輸入或管有假麻黃碱罪行的嚴重性，而將該罪行的最高判刑定為罰款100萬元及監禁15年。" } }, { "doc_id": 96, "seg_id": 38, "translation": { "en": "This Court cannot overlook that condoning the importation or possession of raw materials capable of being used in the manufacture of dangerous drugs is equivalent to condoning the offence of manufacture of dangerous drugs, thereby posing great harm to the society. Successful deterrence of the importation or possession of raw materials capable of being used in the manufacture of dangerous drugs is also equivalent to successful reduction of production of dangerous drugs. The trial judge’s view that the offences committed by the applicants “posed great potential harm to the society” is absolutely reasonable, which we agree.", "zh-HK": "本庭不能忽視縱容輸入或管有可用作製造毒品的原料，等同縱容製造毒品罪行，對社會禍害甚大。成功阻嚇輸入或管有可用作製造毒品原料亦等同成功減低毒品的產量。原審法官認定申請人的罪行“對社會潛在禍害極大”的想法絕對合理，本庭認同。" } }, { "doc_id": 96, "seg_id": 39, "translation": { "en": "In Ho Ka Ming, the defendant admitted to one charge of illegal importing and exporting of 2.7 kilogrammes of a solid, containing 1 kilogramme of pseudoephedrine, and the Court of Appeal found that the starting point of 6 years was not manifestly excessive. In particular, the Court of Appeal emphasized that the defendant in that case knew that the substance in question would have been used in the manufacture of dangerous drugs, and the fact that he did not know the method of manufacture nor the quantity of dangerous drugs that could have been produced would not reduce his culpability.", "zh-HK": "在何家銘案，被告人承認一項非法輸入及輸出2.7公斤固體，內含1公斤假麻黃碱，上訴法庭認為6年的量刑基準並非明顯過重。上訴法庭特別強調該案的被告人知悉涉案物質會用作製毒用途，而他不知道製作方法或可製成毒品的數量一事不會減低其罪責。" } }, { "doc_id": 96, "seg_id": 40, "translation": { "en": "In the present case, Lan imported a total of almost 12 kilogrammes of pseudoephedrine, nearly 12 times as much as the amount of pseudoephedrine in Ho Ka Ming mentioned above. The pseudoephedrine in the possession of Li also amounted to 5.63 kilogrammes.", "zh-HK": "在本案，蘭輸入的假麻黃碱共重近12公斤，較上述何家銘案所涉的假麻黃碱超過近12倍。黎管有的假麻黃碱的重量亦有5.63公斤。" } }, { "doc_id": 96, "seg_id": 41, "translation": { "en": "This Court cannot overlook that Lan imported the batch of pseudoephedrine from overseas, and Li was very likely to be assisting others in exporting the batch of pseudoephedrine into the Mainland. They knew or had grounds to believe that the pseudoephedrine was for the manufacture of dangerous drugs.", "zh-HK": "本庭不能忽視蘭是從海外輸入該批假麻黃碱，而黎亦極可能是協助他人將該批假麻黃碱輸往內地。他們是知道或有理由相信該些假麻黃碱是用作製造毒品用途。" } }, { "doc_id": 96, "seg_id": 42, "translation": { "en": "This Court considers that the starting points of 7 years and 4 years adopted by the trial judge for Lan and Li respectively are not manifestly excessive.", "zh-HK": "本庭認為原審法官分別針對蘭和黎所採納的7年及4年量刑基準絕非明顯過重。" } }, { "doc_id": 96, "seg_id": 43, "translation": { "en": "Incidents of Mainlanders importing pseudoephedrine from overseas through Hong Kong are common, which explains why large quantities of “ice” are being manufactured in the Mainland and being exported, including to Hong Kong. This situation must be stopped. If there is information showing a rising trend of similar crimes, in sentencing, the Court might need to set out sentencing guidelines corresponding to the quantities of pseudoephedrine in question, with a view to eradicating such crimes, so as to reduce the prevalence of “ice”.", "zh-HK": "國內人士從國外，經香港輸入假麻黃碱經常發生，這亦解釋為何會有大量“冰毒”在國內製造後，輸出外地，包括香港。這情況必須制止。假若有資料顯示同類罪行有增加趨勢，在處理判刑時，法庭可能需要根據涉案假麻黃碱的份量，定出相應的判刑指引，冀望能杜絕這類罪行以減低“冰毒”氾濫的情況。" } }, { "doc_id": 96, "seg_id": 44, "translation": { "en": "We allow Li’s application for leave to appeal out of time, but dismiss Li’s and Lan’s applications for leave to appeal against sentence.", "zh-HK": "本庭批准黎逾期提出上訴許可申請，但不批准他和蘭就判刑提出的上訴許可申請。" } }, { "doc_id": 96, "seg_id": 45, "translation": { "en": "Mr P.Y. Lo, instructed by Leung & Lau, assigned by the Director of Legal Aid, for the applicants.", "zh-HK": "答辯人：由律政司高級檢控官馮美琪代表。" } }, { "doc_id": 96, "seg_id": 46, "translation": { "en": "Ms Mickey Fung, Senior Public Prosecutor of the Department of Justice, for the respondent.", "zh-HK": "第一及第二申請人：由法律援助署委派梁寶儀劉正豪律師行轉聘大律師羅沛然代表。" } }, { "doc_id": 97, "seg_id": 1, "translation": { "en": "Hon Tang VP (giving the judgment of the Court):", "zh-HK": "上訴法庭副庭長鄧國楨頒發上訴法庭判案書：" } }, { "doc_id": 97, "seg_id": 2, "translation": { "en": "The Applicant herein (Yu Wai Man) was convicted on the following three charges after trial before District Judge Li:", "zh-HK": "申請人（余偉文）在區域法院法官李瀚良席前經審訊後被裁定下列三項控罪罪名成立：" } }, { "doc_id": 97, "seg_id": 3, "translation": { "en": "Charge 1:“Bookmaking”, contrary to section 7(1)(a) of the Gambling Ordinance, Cap. 148 of the Laws of Hong Kong; and", "zh-HK": "控罪一：違反香港法例第148章《賭博條例》第7(1)(a)條「非法收受賭注」罪；及" } }, { "doc_id": 97, "seg_id": 4, "translation": { "en": "Charges 2 & 3:“Dealing with property knowing or having reasonable grounds to believe that it represented the proceeds of an indictable offence”, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455 of the Laws of Hong Kong.", "zh-HK": "控罪二和三：違反第455章《有組織及嚴重罪行條例》第25(1)及(3)條「處理已知道或合理相信為代表從可公訴罪行的得益的財產」罪，" } }, { "doc_id": 97, "seg_id": 5, "translation": { "en": "Charge 1 alleged that the Applicant “engaged in bookmaking between 8 March 2006 and 30 June 2006 (both dates inclusive) in Hong Kong”. Charge 2 alleged that “between 1 January 2004 and 22 June 2006 (both dates inclusive) and in Hong Kong, the Applicant dealt with a property, namely, a total sum of HK$1,000,393 in an account with the Hong Kong and Shanghai Banking Corporation Limited (Account 1), knowing or having reasonable grounds to believe that such property in whole or in part directly or indirectly represented the proceeds of an indictable offence”. Charge 3 alleged that “between 29 January 2004 and 21 June 2006 (both dates inclusive) and in Hong Kong, the Applicant dealt with a property, namely a total sum of HK$809,765 in an account with the Hong Kong and Shanghai Banking Corporation Limited (Account 2), knowing or having reasonable grounds to believe that such property in whole or in part directly or indirectly represented the proceeds of an indictable offence”.", "zh-HK": "控罪一指申請人「於2006年3月8日至2006年6月30日期間（包括首尾兩日）在香港，從事收受賭注」。控罪二指申請人「於2004年1月1日至2006年6月22日期間（包括首尾兩日）在香港，知道或有合理理由相信某項財產，即在香港上海滙豐銀行有限公司帳戶（帳戶一）內的合計港幣1,000,393元的款項，全部或部分、直接或間接代表從可公訴罪行的得益而仍處理該財產」。控罪三指申請人「於2004年1月29日至2006年6月21日期間（包括首尾兩日）在香港，知道或有合理理由相信某項財產，即在香港上海滙豐銀行有限公司帳戶（帳戶二）內的合計港幣809,765元的款項，全部或部分、直接或間接代表從可公訴罪行的得益而仍處理該財產」。" } }, { "doc_id": 97, "seg_id": 6, "translation": { "en": "In respect of Charge 1, the Applicant was sentenced to 15 months’ imprisonment and fined $56,500. In respect of Charges 2 and 3, he was sentenced to 27 months’ imprisonment for each charge. The sentences for Charges 2 and 3 were ordered to run concurrently, and 10 months of the sentence for Charge 1 was ordered to run consecutively to the sentences for Charges 2 and 3, making a total term of 37 months.", "zh-HK": "申請人就控罪一遭判刑15個月及罰款56,500元，就控罪二及控罪三則各被判監27個月。控罪二及控罪三的刑期同期執行，而控罪一的刑期中的10個月與控罪二及控罪三的刑期分期執行。申請人需服的總刑期為37個月監禁。" } }, { "doc_id": 97, "seg_id": 7, "translation": { "en": "The Applicant now applies to this Court for leave to appeal against conviction.", "zh-HK": "申請人不服定罪，現向本庭申請上訴許可，希望能獲准就定罪上訴。" } }, { "doc_id": 97, "seg_id": 8, "translation": { "en": "Synopsis of the prosecution case", "zh-HK": "控方案情摘要" } }, { "doc_id": 97, "seg_id": 9, "translation": { "en": "At the time of the incident, the Applicant was a senior police constable and resided with his family at Ngau Chi Wan Disciplined Services Quarters. On the evening of 1 July 2006, the police arrived at the Applicant’s residence to execute an anti-gambling authorization and conduct a search.", "zh-HK": "案發時申請人是一名高級警員，與家人居住在牛池灣紀律部隊宿舍。2006年7月1日晚上，警方到申請人的住所執行打擊賭博的授權書，並進行搜查。" } }, { "doc_id": 97, "seg_id": 10, "translation": { "en": "As those inside the Applicant’s premises refused to open the door, the police had to break into the premises. After gaining entry into the premises, police officers saw the Applicant and his wife standing in the living room, where a football match was being broadcast on the television. Among the exhibits seized from the living room were a notebook of A4 size and two sheets of paper (Exhibit P6).", "zh-HK": "由於住所內的人拒絕開門，警方需破門入屋。進入申請人的住所後，警員發現申請人及其妻子站在客廳內，客廳內的電視機正播放足球賽事。警員在客廳搜獲的證物包括一本A4大小的筆記簿及兩張紙（證物P6）。" } }, { "doc_id": 97, "seg_id": 11, "translation": { "en": "Police officers found two ATM cards from a wallet on the Applicant’s person. They also found in the living room two passbooks relating to the bank accounts referred to in Charges 2 and 3. One of the passbooks belonged to the Applicant, and the other to one Yu Wai Keung. Subsequently, the police seized from a drawer of the Applicant’s writing desk at Kwun Tong Police Station, where he was attached to, a private and confidential letter dated 23 February 2004 from the Hong Kong Bank to Yu Wai Keung, informing him that the ATM card of the account referred to in Charge 3 and the relevant PIN number were ready for collection.", "zh-HK": "警員從申請人身上的銀包搜獲兩張銀行的提款卡，在客廳則搜獲與本案第二和第三項控罪所述的銀行戶口的存摺，一本屬於申請人而另一本則屬於一名叫余偉強的人士。其後警方在申請人駐守的觀塘警署其寫字枱的抽屜內檢獲滙豐銀行於2004年2月23日寄給余偉強的一封私人密件，內容是通知余偉強領取有關第三項控罪所述帳戶的自動櫃員機咭和該咭的私人密碼。" } }, { "doc_id": 97, "seg_id": 12, "translation": { "en": "Between 1 January 2004 and 22 June 2006 (both dates inclusive), the Applicant dealt with a total sum of HK$1,000,393 in Account 1; between 29 January 2004 and 21 June 2006 (both dates inclusive), he dealt with a total sum of HK$809,765 in Account 2. The said two figures were net of items such as wages.", "zh-HK": "經剔除包括薪金等的款項後，申請人於2004年1月1日至2006年6月22日期間（包括首尾兩日），曾處理帳戶一共港幣1,000,393元的款項，於2004年1月29日至2006年6月21日期間（包括首尾兩日），曾處理帳戶二共港幣809,765元的款項。" } }, { "doc_id": 97, "seg_id": 13, "translation": { "en": "Charge 1", "zh-HK": "控罪一" } }, { "doc_id": 97, "seg_id": 14, "translation": { "en": "In respect of Charge 1, the thrust of the prosecution case was that Exhibit P6 contained “bookmaking records” of the bookmaker.", "zh-HK": "就控罪一，控方的基本立場是證物P6中有記錄從事收受賭注的人（bookmaker）的「收注記錄」。" } }, { "doc_id": 97, "seg_id": 15, "translation": { "en": "For the purpose of proving that P6 contained bookmaking records, the prosecution called as its principal witness Sergeant 46070 Ling Sai Kei (PW4). His evidence, which he gave as a gambling expert, was not disputed.", "zh-HK": "為了證明P6是收注記錄，控方傳召的主要證人為控方第四證人警長46070凌世祺。雙方對他以賭博專家身份作出的證供並沒有爭議。" } }, { "doc_id": 97, "seg_id": 16, "translation": { "en": "Sergeant Ling’s evidence was that the betting records were kept in an A4 size single line writing pad (Exhibit P6), of which tens of pages contained handwritings on both sides. There was no dispute that Exhibit P6 was written by the Applicant. For the sake of convenience, the pages in P6 which contained handwritings were individually marked with the numbers 1 to 47. The police subsequently took photographs of P6 and those photographs formed Exhibit P90. The photographs were enlarged (Exhibit P91A) for easy reference at trial. P6, P90 and P91A had the same subject-matter.", "zh-HK": "根據凌警長的證供，賭注記錄載於一本A4大小的單行書寫簿，其中有數十頁（包括底和面）都被人書寫過（證物P6）。雙方同意證物P6是由申請人寫的。為方便起見，P6內曾經被書寫過的頁數分別被編為1至47號。警方後來將證物P6拍照編成證物P90，再將相片放大編成證物P91A以方便審訊。證物P6、P90和P91A是同一證物。" } }, { "doc_id": 97, "seg_id": 17, "translation": { "en": "According to Sergeant Ling’s expert evidence, 43 pages of P6 were soccer betting records which detailed the kick off time, the classification of the matches, the names of the teams (or referred to in short as “handicap”), the odds and the wagers etc. The sergeant deduced from the contents and layout of P6 that the bets fell into the following two categories:", "zh-HK": "根據凌警長的專家證供，P6其中43頁是波纜記錄，而記錄有顯示開賽時間、賽事種類、球隊名稱（或簡稱「盤口」）、賠率及投注金額等等。從P6的內容及模式，他推斷有關賭注分為以下兩種：" } }, { "doc_id": 97, "seg_id": 18, "translation": { "en": "(1)Soccer bookmaking (see Exhibit P104A for details). Exhibit P104A contained 9 photographs showing bookmaking records and, on Sergeant Ling’s analysis, a total of 19 bets were involved. The exhibit P104A showed that the code names of the two punters were H and T.", "zh-HK": "（第一）收受足球賭注，詳情見證物P104A。證物P104A內有涉及收受賭注記錄的9張相片，經凌警長分析過內容後，發現內裡牽涉共19項賭注。證物P104A顯示投注人代號為H或T兩人。" } }, { "doc_id": 97, "seg_id": 19, "translation": { "en": "(2)Soccer bets.", "zh-HK": "（第二）投注足球的賭注。" } }, { "doc_id": 97, "seg_id": 20, "translation": { "en": "Sergeant Ling pointed out that the first type of betting records were made by the author thereof in respect of bets he accepted from the punters as a bookmaker and banker, involving wagers totalling HK$56,500. The second type of betting records related to the bets placed with other bookmakers by the author of the records on behalf of himself or other punters, involving wagers totalling approximately HK$650,000. Sergeant Ling pointed out that there was insufficient evidence to show whether the second type of betting records had anything to do with illegal gambling.", "zh-HK": "凌警長指第一種賭注記錄是原作人記下已經收受的賭注，與投注人對賭，而涉及的賭注合共港幣$56,500。第二種賭注是記錄原作人協助本身或他人將有關的賭注向外作出投注，而涉及的賭注合共約港幣$650,000。凌警長指未有足夠證據確定第二種賭注是否與非法賭博活動有關。" } }, { "doc_id": 97, "seg_id": 21, "translation": { "en": "The key issue in the present case was whether the first type of records constituted bookmaking records, as section 7(1)(a) of the Gambling Ordinance provides that:", "zh-HK": "本案的關鍵在於第一種賭注，是否是一項收受賭注的記錄，原因是《賭博條例》第7(1)(a)條列明：" } }, { "doc_id": 97, "seg_id": 22, "translation": { "en": "“(1) Any person who ―", "zh-HK": "「(1)任何人如─" } }, { "doc_id": 97, "seg_id": 23, "translation": { "en": "(a)engages in bookmaking, whether on one occasion or more than one occasion;", "zh-HK": "(a)一次或多次從事收受賭注；" } }, { "doc_id": 97, "seg_id": 24, "translation": { "en": "commits an offence …”", "zh-HK": "即屬犯罪，…」" } }, { "doc_id": 97, "seg_id": 25, "translation": { "en": "District Judge Li, the trial judge, stated in his judgment that:", "zh-HK": "原審法官李瀚良在其判詞指出：" } }, { "doc_id": 97, "seg_id": 26, "translation": { "en": "“3.The defendant neither gave evidence nor called any defence witness. In respect of Charge 1, defence counsel mainly queries whether the betting records in question involve any bets accepted by the author of the records as a bookmaker. Defence counsel raises several other possibilities including ‘betting against each other’, ‘joint betting’ and ‘bets placed with other bookmakers’ etc. In respect of Charges 2 and 3, defence counsel argues that there is no evidence proving that the defendant knew what the ‘indictable offence’ referred to in the charges was.”", "zh-HK": "「3.被告人沒有作供，也沒有辯方證人。就第一控罪辯方律師主要質疑涉案的賭注記錄簿是否包含收注項目。辯方提出其他幾個可能性包括『對賭』、『合夥投注』和『投注其他外圍』等。就第二和第三項控罪，辯方律師指沒有證據證明被告人知道控罪所指的是甚麼『可公訴控罪』。」" } }, { "doc_id": 97, "seg_id": 27, "translation": { "en": "In paragraph 17 of his judgment, the trial judge had this to say:", "zh-HK": "原審法官在判詞第17段指出：" } }, { "doc_id": 97, "seg_id": 28, "translation": { "en": "“c.In respect of the 19 bets referred to by PW4, the defence has raised other possibilities:", "zh-HK": "「c.就控方第四證人指出的19項收注項目，辯方提出其他可能性。" } }, { "doc_id": 97, "seg_id": 29, "translation": { "en": "i.The first possibility is ‘betting against each other’. The defence submitted that if ‘H’ and ‘T’ were the defendant’s friends, their bets in private should not be regarded as bookmaking on the part of the defendant as there was no element of trade or business. PW4 accepted such a possibility existed but pointed out that if they were merely betting against each other, the odds would not have to be so complicated. On my analysis in paragraphs 19 to 21 below, the odds in most of these 19 bets were better than those offered by the Hong Kong Jockey Club. Some of the handicaps were different from those of the Jockey Club, and some even adopted the Asian handicap odds of Macauslot. I agree with PW4 that things would not have to be so complicated if they were friends ‘betting against each other’.", "zh-HK": "i.第一種可能是『對賭』，辯方指若被告人與『H』和『T』是朋友，他們私下的賭注，不應是收受外圍賭注因沒有生意或業務的成份。控方第四證人同意有此可能，但他指出若是對賭，不必這般複雜。根據本席以下第19至21段的分析，這19項收注項目的賠率大部份比香港賽馬會提供的好，而部份的盤口更與馬會的不同，有些更採用澳彩亞洲盤口，本席同意控方第四證人所說，若是朋友『對賭』，不必如此複雜。" } }, { "doc_id": 97, "seg_id": 30, "translation": { "en": "ii.The second possibility is ‘joint betting’. The defence submitted that these 19 bets were possibly made jointly by the defendant, ‘H’ and ‘T’. PW4 tried to disprove that assumption by using photograph 16 of Exhibit P90A as an example. Two of the entries on that page read: ‘0345, UEFA Champions League, Chelsea, –0.5, 2B’ and ‘Barcelona, 0.5, 10/3B, H’. Chelsea and Barcelona were the two opposite teams in the soccer match on that day. In the former entry, the defendant bet on Chelsea; in the latter entry, on the defence’s assumption, the defendant and ‘H’ placed a joint bet on Barcelona. PW4 said it would be irrational for the defendant to bet on the two opposite teams at the same time. I agree with PW4’s analysis that it would be irrational for the defendant to bet in this way. The bets were contradictory, the winnings would be reduced even if either team won the match, and in the event of a draw, the defendant would lose even more.", "zh-HK": "ii.第二種可能是『合夥投注』，辯方指這19項可能是被告人與『H』和『T』合夥投注。控方第四證人以證物P90A第16張相為例反證造假設。該頁其中兩項是『0345　歐冠　車仔　受半　2B』和『巴塞　半10/3B　H』，這兩隊當天對賽，前者被告人投注車路士。若照辯方的假設，後者是被告人與『H』合夥投注巴塞隆拿。被告人同時投注對賽的雙方，控方第四證人認為不合常理。本席同意控方第四證人的分析，被告人這投注方式互相矛盾，不但減低贏錢的數目，若賽和的話，輸的更多，本席認為不合常理。" } }, { "doc_id": 97, "seg_id": 31, "translation": { "en": "iii.Another assumption of the defence is that ‘H’ might be the bookmaker. If this assumption were valid, then according to the two bets cited above, i.e. ‘0345, UEFA Champions League, Chelsea, –0.5, 2B’ and ‘Barcelona, 0.5, 10/3B, H’, the defendant would have placed bets with different bookmakers on both sides of the same match. I consider this irrational for the same reason.", "zh-HK": "iii.辯方的另一假設是『H』可能是收注人，若這假設成立，以上提及的兩項投注項目『0345　歐冠　車仔　受半　2B』和『巴塞　半10/3B　H』，便是被告人分別向不同外圍收注人投注對賽的雙方，同樣道理，本席認為不合常理。" } }, { "doc_id": 97, "seg_id": 32, "translation": { "en": "iv.The defence has pointed out that the above scenario only applies to one of the 19 bets and hence cannot be relied upon to rule out the possibility that the other bets related to joint betting. Were this assumption valid, it would mean that ‘H’ sometimes bet against the defendant, sometimes placed bets with the defendant jointly, and sometimes acted as a bookmaker. This proposition about the shifting roles of ‘H’ is in my view far-fetched and irrational.", "zh-HK": "iv.辯方指這19項收注項目只有一項出現以上問題，不能用作推翻其餘項目有關合夥等等的其他可能性。若此論據成立，便會出現『H』一時與被告人對賭，一時與被告人合夥投注，又一時是收注的情況，本席認為『H』角色變換的講法甚為牽強，並不合理。" } }, { "doc_id": 97, "seg_id": 33, "translation": { "en": "v.Yet another assumption of the defence is that the defendant placed bets on behalf of ‘H’ and ‘T’. I accept PW4’s argument that it would be irrational for the defendant to place bets on behalf of others in his own name because he would then run the risk of being dunned by the bookmakers for payment and his own betting limit would then be lowered.", "zh-HK": "v.辯方的另一假設是被告人替『H』和『T』投注，控方第四證人認為被告人用自己的名義替他人投注，自己便要承擔被收注人追數的風險，而且降低自己的投注限額，實不合理，本席接受這論據。" } }, { "doc_id": 97, "seg_id": 34, "translation": { "en": "vi.The various possibilities raised by the defence are sheer assumptions, and I find nothing in the evidence before me which supports those possibilities. It is true that the defence does not bear the burden of proof, but there must be some evidence to support the assumptions it makes. In the absence of such evidence, and in light of the analysis in sub-paragraphs (i) to (v) above, I do not accept the defence’s assumptions.", "zh-HK": "vi.以上辯方提出的各種可能性，本席在呈堂證據中沒有發現任何證據支持這些可能性，純是辯方的假設。辯方當然沒有舉證責任，但就這些假設，也須提出一些證據支持這講法，完全沒有任何這方面的證據，加上以上(i)至(v)段的分析，本席不接受辯方的假設。" } }, { "doc_id": 97, "seg_id": 35, "translation": { "en": "d.I notice that those 19 betting records contain only the names of the teams but not the dates and times of the matches. The defence points out that they do not look like bookmaking records as they are very different from the detailed records kept by the Hong Kong Jockey Club. According to PW4, off-course bookmakers normally accept bets only one day before the match, and so it is sufficient to record the names of the teams without more. And according to PW5, the Hong Kong Jockey Club starts accepting bets about one week before the matches and simultaneously accept bets relating to matches held on several dates, and it is therefore necessary to specify the date and code number of each match. I accept the evidence of the two prosecution witnesses. In my view, as off-course bookmakers accept bets only one day before the matches, and they do not operate on a scale comparable to that of the Hong Kong Jockey Club, their betting records cannot be mentioned in the same breath with ― and need not be as detailed as ― those of the Hong Kong Jockey Club. Exhibit P6 does contain sufficient information, and there should be no question of any confusion on the part of the bookmaker.”", "zh-HK": "d.本席留意到19項收注項目沒有註明日期和比賽時間，只有球隊名字。辯方指出這與香港賽馬會的詳細記錄相距甚遠，不似是收注記錄。根據控方第四證人所講，外圍賭波通常在賽前一天才收注，所以球隊名稱已是足夠資料。而根據第五控方護人所講，香港賽馬會同時接受幾日賽事的投注，約在一星期前開始收注，所以投注人須要說明日期和賽事編號。本席接受兩位控方證人的證供，基於收注的時間是賽事前一天，加上沒有香港賽馬會收注的規模，本席認為外圍賭波記錄不能跟香港賽馬會比較，也不需如後者般詳盡，證物P6的資料已經足夠，收注人不應混淆。」" } }, { "doc_id": 97, "seg_id": 36, "translation": { "en": "Apart from Sergeant Ling, the prosecution also called another gambling expert (PW7) upon request of the defence. The trial judge made the following observations on PW7’s evidence:", "zh-HK": "除凌警長外，控方亦應辯方的邀請，傳召另一名賭博專家，即控方第七證人作供。原審法官就控方第七證人的證供有以下說法：" } }, { "doc_id": 97, "seg_id": 37, "translation": { "en": "“18.Another gambling expert in the present case (PW7) reached a preliminary conclusion after examining Exhibit P6 that it related to illegal off-course soccer betting activities and that the author (i.e. the defendant) acted as a ‘punter’. As to why he only conducted a preliminary analysis, PW7 explained that his superior had asked him to ascertain as soon as possible whether the relevant exhibit related to illegal soccer betting activities, so that his superior could decide whether to transfer the defendant to another post. PW7 therefore submitted his report in about two days’ time without carrying out a detailed analysis. He did notice what he suspected to be bookmaking items, but as he was not sure about it, he made no mention of it in his report. Subsequently, upon request of the defence, he attended court to hear PW4’s evidence, and after consideration, he agreed with PW4’s conclusion that Exhibit P6 showed that the defendant accepted bets as a bookmaker and placed bets with off-course bookmakers at the same time. This notwithstanding, there is nothing improper with his preliminary conclusion. The defence called into question PW7’s reliability as a witness for the reason that he had failed to submit further reports to explain his change of views. I have carefully considered what PW7said. His report stated clearly that it contained his preliminary analysis and preliminary conclusion. Moreover, it was unlikely for PW7 to have overlooked the 19 betting records in question which were conspicuous. I accept his explanation that he made no mention of them in the preliminary report as he was still not sure. As to the defence’s complaint that he changed his views, I do not think this affected his evidence. Having heard PW4’s analysis and cross-examination in court, he had sufficient information to enable him to reconsider his views. I see nothing improper with this. Furthermore, it was only after hearing what PW4 said and making his own assessment that he arrived at his conclusions. I accept his evidence.”", "zh-HK": "「18.本案另一名賭博專家（控方第七證人）審閱證物P6，他的初步結論指證物P6涉非法外圍賭波活動，原作人（即被告人）的角色是‘投注人’。他解釋當時只做初步分析，是應上司要求，盡快決定有關證物是否屬非法賭波，以便決定將被告人調職，所以約兩天內他呈交報告，沒有作詳細分析。雖然當時他已發現懷疑收注項目，但因未能肯定，所以沒有在報告內提及。後來他應辯方要求到法庭旁聽控方第四證人的證供，經考慮後，他同意控方第四證人的結論，證物P6顯示被告人是收注人，同時也投注外圍波。雖然如此，他的初步結論是沒有問題的。辯方質疑控方第七證人改變看法，沒有提供進一步報告交代，是不可靠的證人。本席小心考慮過控方第七證人的講法，他的報告清楚寫明是初步分析和初步結論。其次，涉案的19項收注項目十分明顯，控方第七證人不應錯過，本席相信他的解釋，在未肯定前他索性不在初步報告提及。至於辯方批評他改變看法，本席認為不影響他的證供，他在法庭聽過控方第四證人的分析和盤問後，有充份資料再考慮自己的看法，沒有不妥。何況，他是聽過控方第四證人的講法，自己再作分析才下結論的，本席接受他的證供。」" } }, { "doc_id": 97, "seg_id": 38, "translation": { "en": "Mr Wong SC, Counsel for the Applicant on appeal, submits that it was unsafe for the trial judge to accept the evidence of Sergeant Ling and PW7 because the content of P6 was messy and included a number of inexplicable figures. Mr Wong also casts doubts about the reliability of Sergeant Ling’s evidence.", "zh-HK": "申請人在上訴時由王正宇資深大律師代表。王資深大律師指出，原審法官接納凌警長和控方第七證人的證據並不穩妥，因為P6除了相當混亂之外，更出現不少未能解釋的數字。王資深大律師亦質疑凌警長證供的可靠性。" } }, { "doc_id": 97, "seg_id": 39, "translation": { "en": "In his detailed judgment, the trial judge clearly explained why he accepted the evidence of Sergeant Ling and PW7. His conclusion on this point is in our view impeccable. Furthermore, this is a finding of fact which the appellate court should not lightly disturb.", "zh-HK": "原審法官在其詳細的判詞內已清楚解釋他接納凌警長和控方第七證人的證供的理由。關於這點，本庭認為原審法官的結論是無懈可擊的。況且這是基於事實的裁斷，上訴法庭不該在這方面作出干預。" } }, { "doc_id": 97, "seg_id": 40, "translation": { "en": "In addition, in paragraph 17 of his judgment, the trial judge provided the following detailed, lucid and reasonable explanation on the more significant queries and possibilities raised by the defence:", "zh-HK": "再者，在判詞第17段，對於辯方提出幾項比較重要的質疑和可能性，原審法官都有作出以下詳細清楚和合理的解釋：" } }, { "doc_id": 97, "seg_id": 41, "translation": { "en": "“a.The defence submits that Exhibit P6, with its messy content, does not look like records of a bookmaker, who is expected to keep clear records to enable him to settle accounts with punters. I do notice quite a number of inexplicable figures in the exhibit, but on the whole, the various records of bets placed and bets received are clearly laid out, and the codes of the suspected punters are clearly recorded. I accept PW4’s evidence that bookmakers habitually settle accounts the day following the relevant match, so that before they record the bets accepted or placed for a match on another day, usually the balance has already been worked out clearly and hence there should be no question of the bookmakers being confused.", "zh-HK": "「a.辯方指證物P6相當混亂，不似是收注人記錄，後者的記錄必定清楚以便與投注人結數。本席留意到有關證物中出現不少未能解釋的數字，但整體而言，各項投注或收注記錄清晰列出，有關懷疑投注人的代號也十分清楚記錄。本席接受控方第四證人的講法，收注人慣常在賽事翌日便會結數，所以在記錄另一天賽事的收注或投注項目之前，通常已計清結餘，對收注人而言不應有混淆。" } }, { "doc_id": 97, "seg_id": 42, "translation": { "en": "b.The defence submits that there are many inexplicable figures in the ‘ledger’ and that, contrary to PW4’s evidence that accounts are settled within one or two days, the ‘ledger’ covers matches spanning several months. PW4 has pointed out that, depending on the relationship between the bookmaker and the punter, there are many possible ways of settling accounts. Furthermore, the figures in Exhibit P6 are accompanied by ‘+’ or ‘-’ signs, for instance, photos 31 and 47 of Exhibit P90A clearly indicate settlement of accounts. I have examined Exhibit P6 carefully and notice that many pages have been torn out of it, and I believe photo 47 depicts one of those pages. Furthermore, this exhibit also includes a sheet of paper of a different size, with figures written on it in red ink. These indicate that the A4 size book in Exhibit P6 is not a complete record, and this, I believe, is one of the reasons why PW4 could not trace the figures. On the above analysis, I accept PW4’s evidence that Exhibit P6 contains the ‘ledger’ of punters ‘H’ and ‘T’.”", "zh-HK": "b.辯方指『流水賬』有多處數目不能解釋，而『流水賬』包括幾個月的賽事，與控方第四證人指一至兩日結數的講法不符。控方第四證人指結數的方式視乎收注人與投注人的關係，有很多可能性。其次，證物P6簿內的數目有『加』或『減』號，如證物P90A第31和47張相的內容，明顯有結算的情況。本席曾小心查閱證物P6，其中多處有撕掉的痕跡，而第47張相片相信是從簿中撕掉的其中一頁。其次，此證物也包括一張不同大小的紙張，上有一些用紅筆寫的數字。這些均顯示證物P6中的A4簿並非完整記錄，本席相信是控方第四證人未能追溯數字來歷的原因之一。基於以上分析，本席接受控方第四證人所講，證物P6包含投注人『H』和『T』的『流水賬』。」" } }, { "doc_id": 97, "seg_id": 43, "translation": { "en": "The trial judge said in paragraph 17(c)(vi) of his judgment that:", "zh-HK": "就原審法官在第17(c)(vi)提及：" } }, { "doc_id": 97, "seg_id": 44, "translation": { "en": "“... It is true that the defence does not bear the burden of proof, but there must be some evidence to support the assumption it makes. …”", "zh-HK": "「…辯方當然沒有舉證責任，但就這些假設，也須提出一些證據支持這講法…」" } }, { "doc_id": 97, "seg_id": 45, "translation": { "en": "In this respect, Mr Wong SC submits that the trial judge had erroneously imposed the burden of proof on the Applicant, in particular because the trial judge mentioned the term “evidential burden” in footnote 75. On this issue, we agree with what Mr Tam, Counsel for the prosecution, has said:", "zh-HK": "王資深大律師認為原審法官誤把舉證的責任放在被告人的身上，尤其因為原審法官在註錄（footnote 75）提及“evidential burden”。對於這點本庭同意控方覃大律師所說：" } }, { "doc_id": 97, "seg_id": 46, "translation": { "en": "“33.It might strictly speaking not be proper for the trial judge to use the phrase ‘evidential burden’ in expressing what he had in mind, but what he intended to express was clear. Both of the expert witnesses gave evidence that the 19 records were ‘records of bets accepted’, and there was no evidence to support a reasonable inference that they are not ‘records of bets accepted’ as PW4 and PW7 had suggested. Anything is ‘possible’ in this world, but it does not mean that every possibility is a ‘reasonable inference’. The trial judge’s conclusion was that, in the absence of supporting evidence, the possibilities of ‘betting against each other’ and ‘joint bettings’ were not ‘reasonable inferences’.”", "zh-HK": "「33.可能原審法官用‘evidential burden’一詞來表達他的意念嚴格來說未必正確，但他想表達的意念是明顯的。兩位專家證人的證供均指有關的19個項目是『收注項目』而沒有證供支持一個合理推論它們並非如PW4和PW7所言的『收注項目』。在這世界上什麼也有『可能』，但這並不表示每一個可能性都是一個『合理推論』。原審法官的結論是『對賭』、『合夥投注』等可能性，在缺乏證據支持下，並非是『合理的推論』。」" } }, { "doc_id": 97, "seg_id": 47, "translation": { "en": "Mr Wong SC complains that Sergeant Ling based his conclusion in respect of those 19 bets on the form and contents of Exhibit P6, which were both “hearsay evidence”. However, in Oei Hengky Wiryo v HKSAR (No 2) (2007) 10 HKCFAR 98, the Court of Final Appeal gave a final judgment on this issue, which is that an expert witness can make inferences about the nature and contents of a document on the basis of its form and contents, and a witness who takes such an approach is not relying on “hearsay evidence” because the approach does not involve the making of any assumption concerning the truth or otherwise of the transaction that the document records.", "zh-HK": "王資深大律師批評控方凌警長對該19項投注的結論是基於P6的格式和內容，而格式和內容均是「傳聞證供」。但這論點在Oei Hengky Wiryo v HKSAR (No 2) [2007] 10 HKCFAR 98，終審法院已有結論。專家證人使用文件的格式和內容來作為基礎，從而推斷文件的性質和內容的做法，並不涉及就該文件所記錄的交易的真偽作出任何假設，所以不是依賴「傳聞證供」。" } }, { "doc_id": 97, "seg_id": 48, "translation": { "en": "Furthermore, McHugh NPJ said:", "zh-HK": "再者，終審法院非常任法官馬曉義有以下說法：" } }, { "doc_id": 97, "seg_id": 49, "translation": { "en": "“63.In the present case, Sgt Ling Sai Kei identified the documents seized from Kam’s home and office as the type of records kept by a bookmaker betting on soccer matches. In his opinion, the documents appeared to record soccer matches, odds, handicaps and bets between bookmakers and punters and to have been prepared by a person who was a ‘teng jai’ or bookmaker’s agent. Sgt Ling Sai Kei reached his opinion by reference to the form and contents of the documents — by their numbers, letters, codes, columns and arrangement. As the decision of this Court in Secretary for Justice v. Lui Kin Hong (1999) 2 HKCFAR 510 shows, no breach of the hearsay rule occurs because a judge takes into account the form and contents of a document in determining its nature. Nor does using the contents of the documents for that purpose make any assumptions concerning the truth or falsity of the transactions that the document purports to record. Consequently, the learned trial judge committed no breach of the hearsay rule by adopting the opinion of Sgt Ling Sai Kei who had taken into account the form and contents of the documents in determining that they were bookmaking documents. Nor did Sgt Ling Sai Kei’s opinion or the learned judge’s acceptance of it rely on the truth of their contents in determining the nature of the documents.”", "zh-HK": "“63.In the present case, Sgt Ling Sai Kei identified the documents seized from Kam’s home and office as the type of records kept by a bookmaker betting on soccer matches. In his opinion, the documents appeared to record soccer matches, odds, handicaps and bets between bookmakers and punters and to have been prepared by a person who was a ‘teng jai’ or bookmaker’s agent. Sgt Ling Sai Kei reached his opinion by reference to the form and contents of the documents – by their numbers, letters, codes, columns and arrangement. As the decision of this Court in Secretary for Justice v. Lui Kin Hong (1999) 2 HKCFAR 510 shows, no breach of the hearsay rule occurs because a judge takes into account the form and contents of a document in determining its nature. Nor does using the contents of the documents for that purpose make any assumptions concerning the truth or falsity of the transactions that the document purports to record. Consequently, the learned trial judge committed no breach of the hearsay rule by adopting the opinion of Sgt Ling Sai Kei who had taken into account the form and contents of the documents in determining that they were bookmaking documents. Nor did Sgt Ling Sai Kei’s opinion or the learned judge’s acceptance of it rely on the truth of their contents in determining the nature of the documents.”" } }, { "doc_id": 97, "seg_id": 50, "translation": { "en": "The principal ground of appeal put forward by Mr Wong SC cannot be sustained.", "zh-HK": "王資深大律師提出的主要上訴理據不成立。" } }, { "doc_id": 97, "seg_id": 51, "translation": { "en": "In passing sentence for Charge 1, the trial judge said:", "zh-HK": "就第一項控罪原審法官判刑時說：" } }, { "doc_id": 97, "seg_id": 52, "translation": { "en": "“9.The first charge of bookmaking involves 19 bets and a wager of approximately $56,500. On the facts, they are illegal activities on a small scale. … As the present case only involves a small scale operation, I adopt a starting point of 15 months’ imprisonment, and for the first charge, I sentence the defendant to 15 months’ imprisonment and a fine of $56,500.”", "zh-HK": "「『9.就第一項收受賭注罪，所涉賭注為19項，賭款約$56,500元，案情顯示是小規範的犯罪行為。…本案只屬小規模，本席以15個月為量刑起點，就第一項控罪判被告人入獄15個月，另罰款$56,500。』」" } }, { "doc_id": 97, "seg_id": 53, "translation": { "en": "On 29 April 2009, upon the invitation of this Court, Mr Wong SC made further submissions to this Court. He stressed that the fact that the Applicant was fined exactly $56,500 for Charge 1 illustrated that the trial judge convicted the Applicant by relying on the truth of the contents of Exhibit P6. Mr Wong SC asserted that the conviction in reliance on the contents of Exhibit P6 went against the principle that the court should not rely on “hearsay evidence”.", "zh-HK": "2009年4月29日，王資深大律師應本庭的邀請再作陳詞時強調，原審法官就第一項控罪判處申請人罰款$56,500整。從這點顯示，原審法官有依賴證物P6的內容的真實性而判處申請人第一項控罪成立。王資深大律師力陳原審法官依賴證物P6的內容來定罪有違反法庭不可依賴「傳聞證據」的原則。" } }, { "doc_id": 97, "seg_id": 54, "translation": { "en": "Mr Tam, Counsel for the Respondent, agrees that the trial judge did rely on the contents of Exhibit P6, but he also points out that the defence case at trial was that Exhibit P6 merely recorded bets placed by the Applicant on behalf of others rather than (as the prosecution suggested) recording bets accepted by the Applicant as a bookmaker. This explained why Mr Alan Hoo SC, Counsel for the Applicant at trial, did not take issue with the admissibility of Exhibit P6 at any stage of the trial.", "zh-HK": "代表答辯人的覃民輝大律師同意原審法官有依賴證物P6的內容，但覃大律師同時指出，原審時辯方指控方證物P6只記錄了申請人替別人下賭注而並非控方所指，它記錄了申請人收取別人賭注的事實。這立場正解釋了原審時代表申請人的胡漢清資深大律師為何從沒有在審訊任何階段對證物P6的可接納性（admissibility）提出異議。" } }, { "doc_id": 97, "seg_id": 55, "translation": { "en": "The main issue in the present case is whether the court could in the circumstances of the case accept Exhibit P6 as evidence of bookmaking records.", "zh-HK": "本申請的重點是在於在本案的情形下，法庭能否接納P6為收注記錄之事實的證據。" } }, { "doc_id": 97, "seg_id": 56, "translation": { "en": "As Mr Tam has pointed out, in cases such as HKSAR v Or Suen Hong [2001] 2 HKLRD 669 and Oei Hengky Wiryo v HKSAR, the issue under discussion was whether the relevant prosecution exhibits were bookmaking records. In the aforesaid two cases, the bookmaking records involved were not made by the respective defendants, and the prosecution was unable to prove that the bookmaking records were actually related to the matches that had been held. Hence, in adducing evidence on that issue, the prosecution could not violate the principle against admitting “hearsay evidence”. In the aforesaid cases, the courts also took the view that it was not a violation of that principle for the expert witnesses to conclude, on the basis of the form and contents of the relevant documents, that those documents were bookmaking records.", "zh-HK": "正如覃大律師指出，HKSAR v Or Suen Hong [2001] 2 HKLRD 669和Oei Hengky Wiryo v HKSAR 等案所討論的議題是控方證物究竟是否是賭博記錄。在該兩宗案例，涉案的賭博記錄都不是由案中被告人書寫的，控方亦不能證明那些賭博記錄確與曾經舉行過的賽事有關，所以控方使用那些證據不能違反法庭不可接納「傳聞證據」的原則。在該些案件，法庭同時認為專家證人根據文件的格式和內容而得出結論，即該文件是賭博記錄的做法，亦不違反這原則。" } }, { "doc_id": 97, "seg_id": 57, "translation": { "en": "The present case differs from the aforesaid two cases in that the prosecution alleged that Exhibit P6 were the bookmaker’s bookmaking records, and those records were made by the Applicant. The defence case at trial was that Exhibit P6 merely recorded bets placed by the Applicant on behalf of others, whereas the prosecution asserted that it recorded bets accepted by the Applicant as a bookmaker. Paragraph 11-7 of Archbold Hong Kong 2009 discusses “hearsay evidence” and the circumstances in which evidence constitutes “hearsay evidence”, making reference to the case of R v Kearley [1992] 2 AC 228. The defendant in that case was charged with possession of drugs. After the defendant was arrested at home, police officers stayed at his home for several hours, during which time 15 incoming calls were received and 9 people visited the premises. Some of the callers and visitors intended to buy drugs from the defendant. The issue was whether what the callers or visitors said could be admitted as evidence proving the defendant had possessed drugs for the purpose of trafficking. Of the five judges sitting in the House of Lords, three concluded that the above evidence was hearsay and therefore inadmissible, but the other two judges considered the evidence admissible.", "zh-HK": "本案與上述兩案例的分別在於控方指P6是收受賭注人（bookmaker）的收注記錄，而收注記錄是由申請人所書寫的。原審時辯方辯稱控方證物P6只記錄了申請人替別人下注的事項，而控方卻指它記錄了申請人收取別人賭注的事項。Archbold Hong Kong 2009第11-7段載有「傳聞證供」及在哪種情況下證供屬「傳聞證供」的討論，當中提到R v Kearley [1992] 2 AC 228案。該案被告人被控藏毒，當被告人在家被警方拘捕後，警方在其家逗留數小時，期間有15人致電，亦有9名訪客，部分來電者和訪客都是想向被告人購買毒品。問題是這些來電者和訪客的說法能否被接納為被告人藏毒作販賣用途的證據。英國上議院5位法官中，有3位認為這屬於傳聞證供，不能接納，但另外2位大法官卻認為可以接納。" } }, { "doc_id": 97, "seg_id": 58, "translation": { "en": "However, Archbold Hong Kong 2009 says:", "zh-HK": "但Archbold Hong Kong 2009提出：" } }, { "doc_id": 97, "seg_id": 59, "translation": { "en": "“If the defendant, while present when the police answer the incoming phone call but not close enough to hear the caller, shouts instructions to hang up because ‘it’s the police’, the ratio in Kearley still applies to prohibit the admissibility of what was said by the caller: R v O’Connell [2003] EWCA Crim 502, CA. However the observed response of the defendant to the fact of the call is admissible and ‘in themselves [on the facts of this case] provided powerful evidence of his involvement in the supply of drugs’ (at para 8).”", "zh-HK": "“If the defendant, while present when the police answer the incoming phone call but not close enough to hear the caller, shouts instructions to hang up because ‘it’s the police’, the ratio in Kearley still applies to prohibit the admissibility of what was said by the caller: R v O’Connell [2003] EWCA Crim 502, CA. However the observed response of the defendant to the fact of the call is admissible and ‘in themselves [on the facts of this case] provided powerful evidence of his involvement in the supply of drugs’ (at para 8).”" } }, { "doc_id": 97, "seg_id": 60, "translation": { "en": "In R v O’Connell [2003] EWCA Crim 502, the English Court of Appeal also said:", "zh-HK": "英國上訴法庭在R v O'Connell [2003] EWCA Crim 502案亦指出：" } }, { "doc_id": 97, "seg_id": 61, "translation": { "en": "“10.In Kearley what the caller had to say was purely hearsay. That would not be so if, of course, it is directly communicated to the hearer, the defendant or appellant as the case may be, and he responds to it.”", "zh-HK": "“10.In Kearley what the caller had to say was purely hearsay. That would not be so if, of course, it is directly communicated to the hearer, the defendant or appellant as the case may be, and he responds to it.”" } }, { "doc_id": 97, "seg_id": 62, "translation": { "en": "In his judgment, the trial judge did not clearly explain the basis on which he admitted Exhibit P6 as evidence. However, as mentioned above, there was no dispute as to the admissibility of Exhibit P6 at trial. Mr Tam has pointed out that the contents and records of P6 were written by the Applicant himself and not by any other person, and the nature of the exhibit was no different from a video recording showing the Applicant receiving bets on soccer matches over the phone. And as Sergeant Ling said in the course of giving evidence (transcript of recording T24T):", "zh-HK": "原審法官在其判詞沒有清楚交代他是以甚麼基礎來接納P6為證據的。但正如上文所述，原審時就P6的可接納性（“admissibility”），雙方並無爭議。覃大律師指出，P6的內容和記錄，是申請人自己而非由別人所書寫的，它的本質與由攝錄機拍攝申請人在電話收受波纜的情況並無分別。又如凌警長在作供時說（錄音謄本T24T）：" } }, { "doc_id": 97, "seg_id": 63, "translation": { "en": "“... to my understanding, ‘H’ minus $1,700 denotes the win or loss of this punter ‘H’ after the soccer match on which he had placed bet took place. As to why it is minus $1,700, I have tried to do my own calculations but have no idea how the figure came about.”", "zh-HK": "「…我理解為『H』減$1,700呢，呢個係一個經過賭波之後，『H』呢個投注人佢嘅勝負嘅結餘嚟嘅，至於點解嚟到呢度係減$1,700呢，我係亦都嘗試計過，唔知點計得出嚟。」" } }, { "doc_id": 97, "seg_id": 64, "translation": { "en": "P6 contained handwritten records by the Applicant of soccer bets that he accepted. The exhibit could therefore be admitted as evidence and was not “hearsay evidence” that the court was debarred from relying upon.", "zh-HK": "P6是由申請人親手書寫以記錄他收受足球賽事的賭注，所以是可以被接納為證供而不是法庭不可依賴的「傳聞證供」。" } }, { "doc_id": 97, "seg_id": 65, "translation": { "en": "Needless to say, it was only upon the analysis of the expert witnesses that P6 could be held to contain records of bets accepted by the Applicant. In paragraph 19 of his judgment, the trial judge gave a detailed analysis of the factual matrix which, the judge stressed, lent support to what Sergeant Ling and PW7 said. The judge arrived at the following conclusion:", "zh-HK": "當然，P6必須經專家證人分析後才能被裁定為申請人收受賭注的記錄。原審法官在判詞第19段有詳細分析種種現象及強調該些現象支持凌警長和控方第七證人的說法。原審法官作出以下的結論：" } }, { "doc_id": 97, "seg_id": 66, "translation": { "en": "“22.On the above analysis, I am satisfied that the 19 items referred to by PW4 and PW7 are bookmaking records.”", "zh-HK": "「22.基於以上的分析，本席確信控方第四和第七證人指出的19項目是收注項目。」" } }, { "doc_id": 97, "seg_id": 67, "translation": { "en": "After consideration, we take the view that P6 was in effect as if the Applicant had written the words “received from Mr X a wager of $1,000 on the soccer match”. Similarly, when the police broke into the premises, if the Applicant said of his own accord that:", "zh-HK": "經分析後，本庭認為P6的效果有如申請人親筆寫下「收某君賭波賭注$1,000」相同。如果警方破門入屋時，申請人自願說：" } }, { "doc_id": 97, "seg_id": 68, "translation": { "en": "“I have only accepted a few bets, please give me a chance.”", "zh-HK": "「我只是收少少賭注，請給我一次機會」" } }, { "doc_id": 97, "seg_id": 69, "translation": { "en": "then such confession could also be admissible as evidence of what had actually happened.", "zh-HK": "申請人的上述招認同樣是可以被接納為事實的證據。" } }, { "doc_id": 97, "seg_id": 70, "translation": { "en": "Charges 2 and 3", "zh-HK": "控罪二及三" } }, { "doc_id": 97, "seg_id": 71, "translation": { "en": "With regard to Charges 2 and 3, the trial judge pointed out that the two main elements of the two charges were:", "zh-HK": "至於控罪二及三，原審法官指出這兩項控罪有以下兩項要素：" } }, { "doc_id": 97, "seg_id": 72, "translation": { "en": "dealing with money in the bank,", "zh-HK": "一）處理銀行款項；" } }, { "doc_id": 97, "seg_id": 73, "translation": { "en": "having known or believed on reasonable grounds that the property represented the proceeds of an indictable offence.", "zh-HK": "二）已知道或合理相信代表可公訴罪行的得益的財產。" } }, { "doc_id": 97, "seg_id": 74, "translation": { "en": "As the trial judge pointed out, the case of Oei Hengky Wiryo has made it clear that it is not necessary for the prosecution to specify the indictable offence referred to in the charge. Mr Wong SC has not taken issue with the court’s finding that the Applicant is the person who dealt with the money in the bank.", "zh-HK": "正如原審法官指出，Oei Hengky Wiryo 已說明控方不需指明控罪所指的是甚麼可公訴罪行。至於法庭判處申請人是處理其銀行款項的人，王資深大律師並無異議。" } }, { "doc_id": 97, "seg_id": 75, "translation": { "en": "The trial judge also stated clearly as follows:", "zh-HK": "原審法官亦清楚指出：" } }, { "doc_id": 97, "seg_id": 76, "translation": { "en": "“33.... the decided cases have established that, in determining whether an inference can be drawn that the defendant ‘had reasonable grounds to believe’, the court should consider two matters: (a) whether there were objective factors which would lead a reasonable man to believe that the money in question represented, in whole or in part, the proceeds of an ‘indictable offence’; (b) whether the defendant was aware of these objective factors. If both questions are answered in the affirmative, the inference can be drawn, provided that it is the only reasonable inference.", "zh-HK": "「33.…根據案例，在決定是否能推斷『有合理理由相信』這問題時，應作兩方面考慮：甲」是否存在客觀因素令一個合常理的人相信，涉案款項全部或部份是源自『可公訴罪行』的得益；乙）被告人是否知道這些客觀因素。若兩者的答案都是肯定，推斷便能成立。不過，這推斷應該是唯一合理的推斷。" } }, { "doc_id": 97, "seg_id": 77, "translation": { "en": "Objective factors", "zh-HK": "客觀因素" } }, { "doc_id": 97, "seg_id": 78, "translation": { "en": "34.As set out in paragraph 13 above, the information provided by the bank in its affirmation reveals that a total of 114 cash deposits and 65 transfers have been made to the two accounts in question. These deposits and transfers ranged from $500 to $30,000 and involved a total sum of over $1.3 million. There have also been four cheque/bank draft deposits involving approximately $400,000. The lack of any evidence showing the sources of these deposits would have led a reasonable man to believe that these sums stemmed from an ‘indictable offence’.", "zh-HK": "34.本席已在上文第13段列出，銀行誓章的資料顯示，共有114項現金存款和65項轉賬入涉案兩戶口，共涉款130餘萬。這些款項由$500至3萬不等，還有4項支票／本票存款約40萬，沒有任何證據顯示存款的來源，這情況必會令一個合常理的人相信這些款項源自『可公訴罪行』。" } }, { "doc_id": 97, "seg_id": 79, "translation": { "en": "Whether the defendant was aware of these objective factors", "zh-HK": "被告人知否這些客觀因素" } }, { "doc_id": 97, "seg_id": 80, "translation": { "en": "35.The defendant, who kept the passbooks and ATM cards of the two accounts in question, must have been aware of the transactions in the accounts. Furthermore, as analyzed in paragraph 32 above, the defendant frequently made deposits to and transfers with the two accounts and therefore must have been aware of the transactions involving the sums in question in the two accounts.", "zh-HK": "35.兩涉案戶口的存摺和提款卡由被告人保管，他一定知道戶口的賬目。其次，本席已在上文第32段分析過，被告人是頻密使用兩戶口存款和轉賬的人，他一定知道涉案款項在兩戶口的情況。" } }, { "doc_id": 97, "seg_id": 81, "translation": { "en": "36.According to another set of agreed facts, the defendant obtained cash advance of over $300,000 with his credit card between 16 December 2003 and 8 June 2006. However, there is no evidence showing any direct link between this sum of money and the two accounts in question, and in my view the cash advance cannot account for the transactions in the accounts in question. Even if I accepted all he said, the money only represents about one-sixth of the amount involved in the two charges, and there is no evidence on the sources of the rest of the money.", "zh-HK": "36.根據另一份同意事實，被告人自2003年12月16日至2006年6月8日共有信用卡透支30餘萬元。沒有任何證據顯示這些款項與涉案戶口有直接關係，本席認為並不能作為解釋涉案戶口的款項。就算全盤接納被告人的講法，這數額只佔涉兩控罪款項約六份之一，就餘下的數目，沒有任何證據顯示其來源。" } }, { "doc_id": 97, "seg_id": 82, "translation": { "en": "37.By reason of the analysis set out in paragraphs 29 to 36, I am satisfied that the defendant had reasonable grounds to believe that the money in the two accounts directly or indirectly represented the proceeds of an indictable offence, and that he dealt with the money. I convict the defendant on Charges 2 and 3.”", "zh-HK": "37.基於第29至36段的分析，本席確信被告人有合理理由相信兩戶口內款項直接或間接代表可公訴罪行，而他處理這些款項。本席裁定被告人第二和第三項控罪罪名成立。」" } }, { "doc_id": 97, "seg_id": 83, "translation": { "en": "Mr Wong SC submits that the trial judge erred in paragraph 34 of his judgment by mentioning the sources of the deposits. In his submission made in both English and Chinese, Mr Wong SC said that “the source of the property”:", "zh-HK": "就判案書第34段，王資深大律師指出原審法官犯錯，原因是他提及存款的來源。王資深大律師在其中英並用的陳詞指「財產來源」：" } }, { "doc_id": 97, "seg_id": 84, "translation": { "en": "“... is only relevant to the knowing limb.”", "zh-HK": "“… is only relevant to the knowing limb”." } }, { "doc_id": 97, "seg_id": 85, "translation": { "en": "With respect, we are of the view that Mr Wong SC has misunderstood the judgment in Oei Hengky Wiryo. The Court of Final Appeal said that in respect of the element of “having reasonable grounds to believe that the property represents the proceeds of an indictable offence”, the prosecution does not have to prove that the property actually represents proceeds of an indictable offence. This, however, does not mean that the source of the property is irrelevant to the question of whether there are “reasonable grounds to believe that the property represents proceeds of an indictable offence”. What the trial judge said in paragraphs 34 and 36 of his judgment is that the objective factor of the source of the property being unknown would lead a reasonable man to believe that the money in question came in whole or in part from “an indictable offence”. But as Mr Tam has pointed out, the trial judge never said in his judgment that the lack of any evidence showing the sources of the money would certainly lead a reasonable man to believe that the money in question represented the proceeds of an indictable offence.", "zh-HK": "本庭認為王資深大律師誤解了Oei Hengky Wiryo案的判決，終審庭指出關於有合理理由相信為代表從可公訴罪行的得益的財產時，控方不需要證明財產是實際從可公訴罪行得到的得益，但這亦不是指財產來源對有否「合理理由相信代表從可公訴罪行的得益」沒有任何關係。在判案書第34段及第36段，原審法官所指出的是財產來歷不明，來歷不明的客觀因素會令一個合常理的人相信，涉案款項全部或部分源自「可公訴罪行」。但是正如覃大律師指出，原審法官在其判案書從未指出因為沒有任何證據顯示款項的來源，便必會令一名合理的人相信有關款項代表可公訴罪行得益的財產。" } }, { "doc_id": 97, "seg_id": 86, "translation": { "en": "Paragraph 4.4.1(d) and (e) of the skeleton submission of Mr Wong SC reads as follows:", "zh-HK": "王資深大律師的陳詞大綱4.4.1(d)和(e)段指出：" } }, { "doc_id": 97, "seg_id": 87, "translation": { "en": "“(d)However, whether or not the accused ‘had’ such grounds is not dependant upon what he had believed at the time. This was so held in HKSAR v MA Zhujiang & Anr [2007] 4 HKLRD 285 {5} where this Court said: [p.13, para 63]", "zh-HK": "“(d)However, whether or not the accused ‘had’ such grounds is not dependant upon what he had believed at the time. This was so held in HKSAR v MA Zhujiang & Anr [2007] 4 HKLRD 285 {5} where this Court said: [p.13, para 63]" } }, { "doc_id": 97, "seg_id": 88, "translation": { "en": "‘… we are satisfied the correct construction of the terms of section 25(1) of the Ordinance [OSCO] is as stated in Shing Siu Ming in respect of section 25(1) of DTROP, and there is no reason to infer into the phrase ‘having reasonable grounds to believe’ the additional element of actual belief …’", "zh-HK": "‘... we are satisfied the correct construction of the terms of section 25(1) of the Ordinance [OSCO] is as stated in Shing Siu Ming in respect of section 25(1) of DTROP, and there is no reason to infer into the phrase ‘having reasonable grounds to believe’ the additional element of actual belief ...’." } }, { "doc_id": 97, "seg_id": 89, "translation": { "en": "(e)Since the issue must be determined irrespective of an accused’s ‘actual belief’, it follows that any explanation offered by an accused of what he believed at the time is irrelevant. And this is so even when a court accepts such explanation to be reasonably true.", "zh-HK": "(e)Since the issue must be determined irrespective of an accused's ‘actual belief’, it follows that any explanation offered by an accused of what he believed at the time is irrelevant. And this is so even when a court accepts such explanation to be reasonably true." } }, { "doc_id": 97, "seg_id": 90, "translation": { "en": "(f)Accordingly, the failure of an accused to give any reasonable explanation (to the police or the court) about what he had believed in respect of the ‘origin’ of the property or the circumstances regarding his dealing with the property must be irrelevant.", "zh-HK": "(f)Accordingly, the failure of an accused to give any reasonable explanation (to the police or the court) about what he had believed in respect of the ‘origin’ of the property or the circumstances regarding his dealing with the property must be irrelevant." } }, { "doc_id": 97, "seg_id": 91, "translation": { "en": "(g)The direct consequence of the above must be that a court, with respect, is not permitted to rely upon such failure in anyway to hold that ‘grounds’ existed. Indeed, ‘origin’ only concerns the ‘knowing limb’ and not the ‘reasonable grounds limb’ [vide: HKSAR v WONG Ping-sui & Anr (2001) 4 HKCFAR 29 where the property was ICAC money.]”", "zh-HK": "(g)The direct consequence of the above must be that a court, with respect, is not permitted to rely upon such failure in anyway to hold that ‘grounds’ existed. Indeed, ‘origin’ only concerns the ‘knowing limb’ and not the ‘reasonable grounds limb’ [vide: HKSAR v WONG Ping-sui & Anr (2001) 4 HKCFAR 29 where the property was ICAC money.]”" } }, { "doc_id": 97, "seg_id": 92, "translation": { "en": "With respect, the above submission shows that Mr Wong SC has misunderstood the judgment in MA Zhujiang. What the Court of Appeal held in that case is that the phrase “having reasonable grounds to believe” in section 25 means the defendant was aware of the relevant reasons, but the prosecution does not have to prove that the defendant actually believed that the money originated from an indictable offence. Mr Wong SC has taken the Court of Appeal’s judgment to mean that the court can convict the defendant no matter whether he knew what actually happened and that, for this reason, any explanation that the defendant may care to provide will not serve any purpose because it will not constitute a defence even if it may be true. Such an interpretation indicates that Mr Wong SC has misunderstood the Court of Appeal’s judgment. The judgment in MA Zhujiang does not say that any explanation offered by the defendant in respect of the money will never constitute a defence. The Court of Appeal merely pointed out that the prosecution does not have to prove that the defendant actually believed that the property originated from an “indictable offence”.", "zh-HK": "這亦顯出王資深大律師對MA Zhujiang案的判決有誤解。上訴庭在該案指出第25條下的「有合理理由相信」的意思是被告人知悉該等理由，但控方毋須證明被告人確實相信款項來自可公訴罪行，王資深大律師將上訴庭的判決引申為無論被告人知否實情，他亦可以被判罪成，所以被告人任何解釋也是沒有用，因為就算他的解釋可能是真的也不構成答辯理由。王資深大律師的立場顯示他對上訴庭判決的誤解。MA Zhujiang一案並非指即使被告人對款項有解釋也不構成答辯理由，上訴庭只是指出控方不需證明被告人確實相信財產源自「可公訴罪行」。" } }, { "doc_id": 97, "seg_id": 93, "translation": { "en": "On the facts of the present case, Mr Wong SC has failed to put forward any argument to convince us that the trial judge’s verdict on Charges 2 and 3 was unsafe and unsatisfactory in any respect.", "zh-HK": "根據本案的案情，王資深大律師沒有提出任何論點令本庭認為原審法官就第二和第三控罪所作的判決有任何不穩妥之處。" } }, { "doc_id": 97, "seg_id": 94, "translation": { "en": "We dismiss the Applicant’s application for leave to appeal against conviction on all the three charges.", "zh-HK": "本庭駁回申請人針對第一、二及三控罪的定罪上訴許可申請。" } }, { "doc_id": 97, "seg_id": 95, "translation": { "en": "Mr Simon Tam, Senior Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官覃民輝代表。" } }, { "doc_id": 97, "seg_id": 96, "translation": { "en": "Mr Wong Ching Y, SC and Ms Sylvia Tung, instructed by May Cheng & Co, for the Applicant.", "zh-HK": "申請人：由鄭氏律師行轉聘王正宇資深大律師及童秀儀大律師代表。" } }, { "doc_id": 98, "seg_id": 1, "translation": { "en": "The Applicant was charged with raping a female, X, on 27 April 2012, contrary to section 118(1) of the Crimes Ordinance. He pleaded not guilty but was convicted by the jury unanimously after trial before Deputy High Court Judge Wong and a jury. He was sentenced to 6 years imprisonment by Wong J. The Applicant applied for leave to appeal against his conviction and sentence. On 27 February 2013, this court refused his application after hearing. Here are the reasons.", "zh-HK": "申請人被控於2012年4月27日強姦女子X，違反《刑事罪行條例》第118(1)條。他否認控罪，但經高等法院暫委法官黃崇厚會同陪審團審訊後，被陪審團一致裁定罪名成立，並被黃法官判監6年。申請人不服定罪及判刑，申請上訴許可。2013年2月27日，本庭在聆訊後拒絕申請，理由如下。" } }, { "doc_id": 98, "seg_id": 2, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 98, "seg_id": 3, "translation": { "en": "At the material time, X was a 17-year-old Form 6 student whereas the Applicant was 26 years old, working as a salesperson in a telecommunications company.", "zh-HK": "案發時，X，17歲，是中六生；申請人，26歲，是電訊公司推銷員。" } }, { "doc_id": 98, "seg_id": 4, "translation": { "en": "X was interested in modelling work, so on 24 April 2012she posted a message seeking part-time modelling job on a part-time models recruitment website. She uploaded her own picture and left her online messaging number (MSN) for contact. In the early hours on 27 April 2012, the Applicant contacted X through MSN. At that time he used a false name and falsely claimed to be a manager of a modelling agency. They agreed to meet at noon on that day.", "zh-HK": "X對模特兒工作感興趣，故在2012年4月24日，在一個招聘兼職模特兒的網站張貼尋找兼職模特兒工作的訊息，並上載自己的照片和留下網上聊天工具號碼 (MSN) 作聯絡之用。4月27日凌晨，申請人用MSN聯絡X，當時他用了一個假名，並訛稱是模特兒公司的經理人。兩人相約在當日中午見面。" } }, { "doc_id": 98, "seg_id": 5, "translation": { "en": "They first met somewhere near Tai Wo Hau MTR station at the time agreed. After that they went to a park nearby, where they had a discussion for about 30 minutes. X said the Applicant told her that she might need to “accompany bosses” if she wanted fame, which meant providing sex service in return for modelling jobs. He also said that taking body measurements was required for modelling and tried to persuade X to go back to her home for that purpose. As a result, X agreed to bring the Applicant to her residence in Tai Wo Hau.", "zh-HK": "到了約定的時間，兩人先在大窩口港鐵站附近見面，然後到鄰近的一個公園交談了約30分鐘。X說申請人告訴她，如果想出名，可能要「陪老細」，即要用性服務來換取模特兒的工作，他又說做模特兒需要度身，並游說X到她家裡度身。結果，X同意帶申請人到她在大窩口邨的住所。" } }, { "doc_id": 98, "seg_id": 6, "translation": { "en": "In X’s home, both of them sat on a bed. The Applicant told X that she could not be shy and that she had to take an active role and try to treat the Applicant as her boyfriend. She was told to close her eyes. When she did so, the Applicant kissed her mouth. X drew back and said it was unacceptable. The Applicant then suggested that X take off all her clothes for body measurement, to which X agreed. After taking body measurement, the Applicant requested X to lie on the bed for he had to look at her body fat distribution. After that, he said to X, “Let me try to kiss you and see if you get any feel. If you don’t, I will leave it and stop.” X agreed and closed her eyes again. The Applicant then kissed X’s mouth and used his hands to touch the breasts and lower part of X and kissed them. The Applicant then took off his pair of trousers to rub the lower parts of X with his penis. X pushed him away immediately and told him to stop. She also said she did not want to be a model. The Applicant got hold of X and said she had better continue as she had already come to such a pass. He then used his body to press on X’s body. X pushed her feet against the Applicant and shouted no. The Applicant ignored her. X struggled to leave the bed but the Applicant lurched towards her from behind, making her fall down on the floor. Giving a shout of pain, X asked to go over to the couch and sit there. The Applicant asked X to give him a few more minutes. X said she could not accept that and that she would rather not be a model if it was what she had to do in return for job opportunities. The Applicant repeatedly said that he would only “rub the outside” without any penetration. X asked a few times if it would just be “rubbing the outside”. The Applicant agreed and a pinkie promise with X was made. The Applicant then used his penis to rub the outside of X’s genitals. X kept cowering but the Applicant grabbed her thigh with one of his hands. Later, during the rubbing, the Applicant’s penis penetrated into the vagina of X completely. After a few seconds, the Applicant cried out and ejaculated at the same time. The Applicant found there was semen on the couch cover as well as on the floor. Furious and frightened, X told off the Applicant. The Applicant, however, argued that there was no penetration and asked if X had any wrong feeling. Eventually, the Applicant and X left X’s home and went away separately.", "zh-HK": "在X的家中，兩人坐在床上，申請人對X說她不能害羞，要主動，嘗試當申請人是她的男朋友，要她合上雙眼。X照做，申請便吻她的嘴，X退開，說不能接受。申請人於是建議先替X脫光衣服度身，X同意。度完身之後，申請人要求X躺在床上，說要看她的脂肪分佈，然後對X說「不如我試下錫妳，睇下妳有冇feel，如果冇，我就算，就停。」X同意，又合上雙眼。申請人就吻X的嘴，又用手摸和吻X的胸部和陰部。申請人然後除褲，用陽具磨擦X的下體，X立刻推開他，叫他停止，並且說不想做模特兒。申請人捉着X，對她說既然走到這一步，不如繼續做，並且將他的身體壓在X的身上，X用腳撐着申請人，而且高呼不要。申請人沒有理會，X掙扎下床，申請人從後將X撲跌在地上，X呼痛並要求去梳化坐，申請人要求X給他多幾分鐘，X表示接受不到，說如果需要這樣換取工作，寧願不做模特兒。申請人多次說他只會在「外面磨」，不會入去。X問了數次是否只會在「外面磨」，申請人都答應了，並且和X勾手指作實。申請人於是用陽具在X的性器官外面磨擦，X一直退縮，但被申請人用一隻手捉着她的大腿。後來，申請人在磨擦期間把陽具完全插入X的陰道內，幾秒鐘之後，申請人叫了一聲，同時射精，申請人發現梳化套和地上都有精液。X十分憤怒和驚慌，指責申請人，申請人卻辯稱沒有插入去，反問X有否感覺錯誤。最後，X和申請人離開X的住所，然後分別離去。" } }, { "doc_id": 98, "seg_id": 7, "translation": { "en": "After leaving home, X telephoned a friend Mr Lee (transliteration) and later her boyfriend Mr Ying (transliteration), crying and complaining about the assault. At that time X sounded frightened. In the afternoon on the same day, X returned home in the company of her boyfriend. She told her parents what happened. After deliberation, a report was made to the police in the evening.", "zh-HK": "離家後，X先後致電朋友李先生和男朋友英先生哭訴被侵犯，當時X語帶驚恐。同日下午X在男朋友陪同下回家，告訴父母事發經過，經商量後，晚上往警署報案。" } }, { "doc_id": 98, "seg_id": 8, "translation": { "en": "On the night in question, X’s father gave the police two pieces of tissues with semen that he picked from the rubbish bin in his residence. The police seized a couch cover from X’s residence and lifted 2 DNA samples from the floor. Analysis by the chemist revealed that the DNA extracts from the semen “sperm fraction” found on the tissue papers and the couch cover could be attributed to the Applicant whereas the semen “non-sperm fraction” found from the couch cover had a mixture of DNA that came from both the Applicant and X. Moreover, the DNA samples lifted from the floor of X’s residence also had DNA from both the Applicant and X.", "zh-HK": "案發當晚，X的父親從住所垃圾桶內檢走兩張沾有精液的紙巾交給警方，警方亦在X的住所內檢取了一張梳化套，並在地板上檢取了兩個DNA樣本。經化驗師分析後，紙巾和梳化套上發現的精液內的「精子分數」中的DNA，可能源自申請人，在梳化套上發現的精液內的「非精子分數」中有源自申請人和X的DNA，在X住所的地板上檢取的DNA樣本亦有源自申請人和X的DNA。" } }, { "doc_id": 98, "seg_id": 9, "translation": { "en": "On 3 May 2012, the Applicant was arrested for rape. The response under caution was, “I understand. She was engaged in compensated dating. I did pay. It was a transaction.” On the same day, the Applicant took part in 2 video interviews voluntarily. He repeated that the intercourse with X was a compensated dating transaction. Both parties agreed the price for sex without wearing a condom would be $1,000. As the Applicant partly ejaculated inside her, X was not happy and asked for an extra $500. The Applicant refused and reasoned with X. X was unhappy but did not say anything further.", "zh-HK": "2012年5月3日，申請人在因強姦罪被捕，警誡下回應「我明白，佢係做援交㗎，我有俾錢，係交易嚟㗎」。同日，申請人在自願的情況下兩次參與錄影會面，重申他和X的性交只是援交交易，雙方同意下以$1,000在不戴避孕套的情況下性交；之後申請人在X的體內部份射精，X因此不滿而索取多$500，申請人拒絕並和X理論，X不悅但沒再作聲。" } }, { "doc_id": 98, "seg_id": 10, "translation": { "en": "On 9 May 2012, X identified the Applicant in an identification parade at the police station.", "zh-HK": "2012年5月9日，X在警署的認人行列中認出申請人。" } }, { "doc_id": 98, "seg_id": 11, "translation": { "en": "Defence case", "zh-HK": "辯方案情" } }, { "doc_id": 98, "seg_id": 12, "translation": { "en": "The Applicant elected to give evidence. He confirmed what he told the police was all true. He repeated his explanation that he and X had compensated dating sexual transaction by mutual consent. As X was not happy that the Applicant partly ejaculated inside her, she asked for an extra $500. The Applicant refused any extra payment as the amount agreed during negotiation was just $1,000. The Applicant denied that X had put up any resistance or refused him or he had promised X that there would only be rubbing outside her vagina.", "zh-HK": "申請人選擇作供，確認他向警方所說的全是事實，並且重覆他的辯解，即他和X是在雙方同意下進行援交的性交易，後來X因申請人於她體內部份射精而不悅，要求另加$500，申請人因早前議價時雙方同意只是$1,000而拒絕額外付款。申請人否認X曾反抗或拒絕他，亦否認曾有答允X只在她外陰磨擦。" } }, { "doc_id": 98, "seg_id": 13, "translation": { "en": "The Applicant called no other witnesses.", "zh-HK": "申請人沒有傳召其他證人。" } }, { "doc_id": 98, "seg_id": 14, "translation": { "en": "The only issue", "zh-HK": "惟一爭議" } }, { "doc_id": 98, "seg_id": 15, "translation": { "en": "The only issue in this case was whether X had sexual intercourse with the Applicant by consent, and whether the Applicant knew that she did not consent to the intercourse, or he was reckless as to whether she consented to it.", "zh-HK": "本案惟一的爭議是，X是否不同意和申請人性交，以及申請人是否知道X不同意性交或者罔顧X是否同意性交。" } }, { "doc_id": 98, "seg_id": 16, "translation": { "en": "Conviction application", "zh-HK": "定罪申請" } }, { "doc_id": 98, "seg_id": 17, "translation": { "en": "In respect of the leave to appeal against conviction, the Applicant had raised 6 grounds of appeal. This court will now look at them one by one.", "zh-HK": "就定罪的上訴許可申請，申請人共提出了六個上訴理據。本庭現逐一審視。" } }, { "doc_id": 98, "seg_id": 18, "translation": { "en": "Ground of appeal 1", "zh-HK": "上訴理由一" } }, { "doc_id": 98, "seg_id": 19, "translation": { "en": "X gave 2 witness statements in the police station on 28 April 2012, one at 1:20 am and the other at 20:30 on the same day. Some details in the 2 statements were not consistent. They did not tally with her testimony either. During cross-examination, Mr Kwan for the Applicant had shown X her 2 witness statements, but when he applied to put these 2 witness statements before the jury, the trial judge refused him.", "zh-HK": "X先後於2012年4月28日凌晨1時20分及同日20時30分在警署錄取了兩份證人供詞；這兩份供詞的內容在某些情節上不一致，也和X在庭上的口供不乎。當X接受盤問時，代表申請人的關大律師曾向她展示這兩份證人供詞；但當他申請把這兩份證人供詞向陪審團展示時，卻不獲原審法官批准。" } }, { "doc_id": 98, "seg_id": 20, "translation": { "en": "Mr Yuen for the Applicant submitted that in so doing, the trial judge prevented the defence from cross-examining X smoothly and effectively on the issue of whether she consented to sexual intercourse, and made it difficult for the jury to appreciate the inconsistency between the statements and testimony of X, which was obviously prejudicial and unfair to the Applicant. Mr Yuen cited The Queen v Yip Chi Keung [1988] 1 HKLR 229 to support his argument.", "zh-HK": "代表申請人的袁大律師陳詞說，原審法官此舉令辯方無法暢順及有效地就X是否同意性交作出盤問，及令陪審團難以掌握X之供詞和口供之間的分歧，對申請人明顯不利和不公。袁大律師引援The Queen v Yip Chi Keung [1988] 1 HKLR 229以支持他的論點。" } }, { "doc_id": 98, "seg_id": 21, "translation": { "en": "Section 14 of the Evidence Ordinance stipulates that:", "zh-HK": "《證據條例》第14條訂明：" } }, { "doc_id": 98, "seg_id": 22, "translation": { "en": "“A witness in any proceedings may be cross-examined as to previous statements made by him in writing or reduced into writing relative to the subject-matter of the proceedings, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him:", "zh-HK": "“在任何法律程序中的證人，可被盤問他以往所作出與該法律程序的標的事項有關的書面陳述或轉為文字紀錄的陳述，而該書面陳述或文字紀錄無須向他展示；但如擬藉該書面陳述或文字紀錄反駁該證人，則在提供該作反駁用的證明前，須提請該證人注意該書面陳述或文字紀錄中將用以如此反駁他的部分：" } }, { "doc_id": 98, "seg_id": 23, "translation": { "en": "Provided always that it shall be competent for the court, at any time during the trial or hearing of the proceedings, to require the production of the writing for its inspection, and the court may thereupon make such use of it for the purposes of the trial or hearing as it may think fit.”", "zh-HK": "但法庭有權在該法律程序的審訊或聆訊中的任何時間，規定任何人交出該書面陳述或文字紀錄供法庭查閱，而法庭並可隨即為該審訊或聆訊的目的而將該書面陳述或文字紀錄作其認為適合的用途。”" } }, { "doc_id": 98, "seg_id": 24, "translation": { "en": "Depending on the actual circumstances and the necessity, a trial judge shall decide on how to make proper use of the statements in writing or statements reduced into writing for the purpose of a fair trial or hearing. In a jury trial, in case the writings concerned are statements previously made by a witness under cross-examination, subject to the actual circumstances and the necessity, the judge may allow the witness to read the statements with or without putting a copy of the same before the jury.", "zh-HK": "法官需要根據案件的實際情況和需要，來決定如何合適地使用有關的書面陳述或文字記錄，以達到公平審訊或聆訊之目的。在陪審團審訊中，若有關的書面陳述或文字記錄是被盤問之證人較早前記錄的供詞，法官可視乎實際的情形和需要，批准證人參閱供詞而不用把供詞副本給陪審團看，或把供詞副本同時給陪審團看。" } }, { "doc_id": 98, "seg_id": 25, "translation": { "en": "When the judge considers whether a copy of a statement should be shown to the jury, the complexity of the issue concerned is always a very important factor. The Court of Appeal said in Yip Chi Keung at page 234 lines B-D that it was perfectly possible, in a simple case, to cross-examine a witness without putting his statement before the jury. Where the matter was at all complex, sharp criticism and comparisons were being made by counsel between the witness statement and testimony, the statement should be put before the witness and the jury. There were 3 purposes for doing so:", "zh-HK": "法官考慮是否把供詞副本給陪審團看時，有關的事宜是否簡單或複雜往往是一個十分重要的因素。正如上訴庭在Yip Chi Keung一案第234頁B-D行指出，在簡單的案件中，可以不需向陪審團展示被盤問之證人的供詞；但若涉及的事宜是複雜的，而盤問的大律師又對證人供詞和口供兩者提出尖銳的批評和比較，則應該把供詞展示給證人和陪審團看。這做法有三個目的：" } }, { "doc_id": 98, "seg_id": 26, "translation": { "en": "(1)It would be fairer to the witness;", "zh-HK": "(一)對證人較為公平；" } }, { "doc_id": 98, "seg_id": 27, "translation": { "en": "(2)For a fair and effective cross-examination on previous inconsistent statement;", "zh-HK": "(二)讓針對以前不一致供詞(previous inconsistent statement)的盤問更公平及有效地進行；" } }, { "doc_id": 98, "seg_id": 28, "translation": { "en": "(3)For the jury to follow and understand the cross-examination better, and to access the evidence concerned, so as to give appropriate weight to it.", "zh-HK": "(三)讓陪審團更能明白和理解盤問的過程，以及評估有關的證據，以考慮其合適的比重。" } }, { "doc_id": 98, "seg_id": 29, "translation": { "en": "The details of the events given by X in her 2 witness statements were not entirely the same. They were inconsistent with her evidence in court, too. In fact, when the trial judge gave directions to the jury, he mentioned that the number of discrepancies between her 2 statements and her testimony was more than 20. However, this did not mean a copy of X’s statements must be shown to the jury. This needed to depend on the actual circumstances and necessity.", "zh-HK": "X在兩份證人供詞所描述事發的情節上不盡相同，也和她在庭上的口供有所出入。事實上，原審法官在引導陪審團時，指出兩份供詞之間和兩份供詞與X口供之間的分歧，共有二十多點。但這不是說，X的供詞副本必需給陪審團看。這需要視乎實際的情況和需要而定。" } }, { "doc_id": 98, "seg_id": 30, "translation": { "en": "The facts of this case were indeed very simple. This was a so-called “one against one” case. The only issue was whether X consented to the sexual intercourse with the Applicant, and whether the Applicant knew that she did not consent to the intercourse or he was reckless as to whether she consented to it. The testimony of X and that of the Applicant on this issue were very clear. Briefly, X was saying that the Applicant falsely claimed himself to be the manager of a modelling agency when he asked to see her. After meeting each other, the Applicant said X had to provide sexual service in return for modelling jobs. X then brought the Applicant home. Upon his repeated requests, X allowed the Applicant to touch and kiss her intimately but never consented to sexual intercourse with him. But after all, the Applicant raped her. The Applicant’s version was entirely different. He said X consented to compensated dating and thus sexual intercourse. When the issue involved was that simple, a copy of X’s statements would not necessarily be required to be shown to the jury according to Yip Chi Keung case.", "zh-HK": "本案的案情其實十分簡單，是所謂『一對一』的案件。惟一的爭議是X是否同意和申請人性交，以及申請人是否知道X不同意性交或者罔顧X是否同意性交。X和申請人在這點上的口供都十分清晰。簡言之，X說申請人訛稱是模特兒公司經理人，約她見面，見面後申請人說X要以性服務換取模特兒的工作，X然後帶申請人回家，在他再三要求下，X容許申請人親密的觸摸和吻她，但她從沒有同意和他性交；可是最後申請人卻把她強姦。申請人的說法則截然不同，他說兩人是在X同意援交之下性交。既然所涉及事宜是如此樣簡單，根據Yip Chi Keung一案，X的供詞副本便不一定需要給陪審團看。" } }, { "doc_id": 98, "seg_id": 31, "translation": { "en": "When Mr Kwan applied to show the jury a full copy of X’s 2 statements, the trial judge did not find it necessary at that moment because even there were quite a number of discrepancies between her statements and evidence in court, relevant important matters could still be highlighted through Mr Kwan’s cross-examination. But then the trial judge made it clear that it depended on the development of the case as to whether it was necessary for the jury to see the copy of X’s statements at a later stage, and that he would keep an open mind. Mr Kwan concurred with the trial judge, continued with his cross-examination of X and made no application to show the copy of X’s statements to the jury again. During cross-examination, Mr Kwan brought up each and every discrepancy between X’s 2 statements and those between her evidence and the statements extensively. Mr Kwan also dealt with these discrepancies in detail in his final submissions to the jury.", "zh-HK": "當關大律師申請把X兩份供詞的完整副本給陪審團看時，原審法官認為在那一刻並無需要，因為即使供詞的內容和X證供分歧之處不少，關大律師仍可以藉盤問把相關重點一一帶出；但法官表明，稍後是否需要把X的供詞副本給陪審團看，將視乎情況發展而定，他對此持開放態度。關大律師同意法官的做法；之後便繼續盤問X，也沒有再申請要把X的供詞副本給陪審團看。盤問X時，關大律師十分詳盡地引出X兩份供詞之間和她證供與供詞之間的各點分歧。在結案陳詞時，關大律師亦有就這些分歧向陪審團詳細陳述。" } }, { "doc_id": 98, "seg_id": 32, "translation": { "en": "Mr Yuen submitted that without showing a copy of X’s statements to the jury, Mr Kwan was unable to cross-examine X smoothly and effectively on whether she consented to the intercourse. Without a copy of X’s statements, it was very difficult for the jury to follow the cross-examination of X, they were easily confused and found themselves at a loss. This ground has no merit. Obviously, even though the jury was not shown the copy of X’s statements, Mr Kwan was still able to conduct his cross-examination on X about the discrepancies in her 2 statements as well as the discrepancies between the statements and evidence of hers adequately and effectively. With Mr Kwan’s cross-examination and final submission, coupled with the detailed summing-up and directions given by the trial judge, the jury should be able to follow and understand fully where the discrepancies in X’s evidence were.", "zh-HK": "袁大律師說，因為X的供詞副本沒有給陪審團看，令關大律師無法暢順及有效地盤問X是否同意性交；而陪審團沒有X的供詞副本，所以很難掌握X的盤問過程，並且容易令他們困惑，無所適從。這說法不能成立，因為顯然易見的是，即使X的供詞副本沒有給陪審團看，關大律師仍能就X兩份供詞之間和X證供與供詞之間各點的分歧，充分及有效地盤問X；而藉關大律師的盤問和結案陳詞，加上原審法官仔細的總結和指引，陪審團應能充分掌握並了解X證據分歧的所在。" } }, { "doc_id": 98, "seg_id": 33, "translation": { "en": "Grounds of appeal 2 & 3", "zh-HK": "上訴理由二及三" } }, { "doc_id": 98, "seg_id": 34, "translation": { "en": "Mr Yuen dealt with these 2 grounds of appeal together in his submissions.", "zh-HK": "袁大律師陳詞時，把這兩個上訴理由一併處理。" } }, { "doc_id": 98, "seg_id": 35, "translation": { "en": "The main argument of Mr Yuen was that the trial judge did not lay explicit and sufficient emphasis on whether X consented to the intercourse and the Applicant’s knowledge as to whether X consented to the intercourse; he failed to make sufficient and comprehensive comments on the discrepancies between the statements and evidence of X; the trial judge did not stress the incredibility of X’s testimony to the jury, instead, he in bland terms downplayed the important points which were most favourable to the defence and hid them among many other factual issues; moreover , the trial judge suggested to the jury views and interpretations justifying those areas which seemed unreasonable or incredible in X’s testimony, thereby making the jury more inclined to accept X’s testimony.", "zh-HK": "袁大律師主要的論點是，就X是否同意性交，及申請人對X是否同意性交的認知上，原審法官沒有作出明確及充分的點題；沒有就X的供詞和庭上證供之間的出入作出充分及全面的評述；也沒有重點向陪審團提出X庭上證供不可信的地方，反而只是平鋪直述，將那些對辯方最有利的重點淡化及放置於眾多事實爭議之中，並且對X證供中一些表面看來不合理或不可信的地方，向陪審團建議一些合理化的看法和演譯，令陪審團更傾向接受X的證供。" } }, { "doc_id": 98, "seg_id": 36, "translation": { "en": "Looking at the whole summing-up, in our view, the trial judge’s directions to the jury were fair, comprehensive and balanced.", "zh-HK": "本庭認為，從整篇總結詞看來，原審法官對陪審團的指引是公平、全面及平衡的。" } }, { "doc_id": 98, "seg_id": 37, "translation": { "en": "First of all, apart from explaining clearly to the jury the legal definition of “rape”, the trial judge did thrice remind the jury that they could not convict the Applicant of rape unless they were sure of the following 4 matters: (1) the Applicant had sexual intercourse with X, (2) X did not consent to the intercourse, (3) the Applicant knew X did not consent to sexual intercourse or he was reckless as to whether she consented to it, and (4) the Applicant could not possibly believe that X consented to the intercourse.", "zh-HK": "首先，原審法官除了向陪審團清楚解釋「強姦」的法律定義外，還三次提醒陪審團如要裁定申請人強姦罪成，必須要肯定四項事宜：(1) 申請人與X性交，(2) X並不同意性交，(3) 申請人知道X不同意性交或罔顧X是否同意性交，及(4) 申請人沒有可能相信X同意性交。" } }, { "doc_id": 98, "seg_id": 38, "translation": { "en": "After that, the trial judge told the jury matters they had to note and consider, and how to deal with the issues of the case in this order: (1) decide first if the Applicant and X had sexual intercourse; (2) then consider if X did not consent to the intercourse; (3) consider if the Applicant really knew that X did not consent to the intercourse or he was reckless as to whether she consented to it only when they were sure of (1) and (2) above. Insofar as (2) was concerned, the trial judge explicitly told the jury that they had to acquit if they could not feel sure that X definitely did not consent to the intercourse. The trial judge emphasised to the jury that even if they did not believe a single word of the Applicant, they had to acquit unless they were able to come to the conclusion that X definitely did not consent to the intercourse. In respect of (3), the trial judge told the jury precisely that if they thought the Applicant’s version was true or probably true, it would then be difficult to be sure that X did not consent to the intercourse; or even if X did not consent to it, it was not hard to find that the Applicant at least did not know that X did not consent to it, or at least he was probably not reckless as to whether she consented to it, or at least he probably believed X consented. In such cases they had to acquit. This court finds the directions given by the trial judge unambiguous and sufficient. They were also fair and accurate.", "zh-HK": "然後，原審法官向陪審團指出須顧及和考慮的事情，和如何順序逐一處理案中的議題：(1) 先決定申請人曾否與X性交；(2) 繼而考慮X是否不同意性交；(3) 肯定上述兩項才考慮申請人是否一定知道X不同意性交，或罔顧Ｘ是否不同意。就第(2) 項，原審法官清楚告知陪審團如未能肯定X一定不同意性交，則必須裁定申請人無罪。原審法官向陪審團強調即使他們完全不相信申請人，也必須得出X一定不同意性交這個結論，否則他們必須裁定申請人無罪。就第(3) 項，原審法官亦清楚告知陪審團，如認為申請人對事發經過的描述是真實或可能是真實，則難以肯定X不同意性交，又即使X不同意，亦不難斷定申請人最少不知道X不同意，或最少可能並非罔顧X不同意，或最少有可能相信X同意。在上述情況下，他們就必須裁定申請人無罪。本庭認為，原審發官的指引不但清晰足夠，而且公平正確。" } }, { "doc_id": 98, "seg_id": 39, "translation": { "en": "In respect of the discrepancies between X’s statements and evidence, the trial judge provided a comprehensive, detailed and fair summary of all the versions given by X. This court does not think the trial judge ever suggested any justification or interpretation to the jury to make them accept X’s story.", "zh-HK": "至於X的供詞和證供之間的分歧，原審法官亦全面、詳盡和公平地總結X的所有說法。本庭不認為原審法官有向陪審團建議合理化的看法及演繹，好使他們接受X的說法。" } }, { "doc_id": 98, "seg_id": 40, "translation": { "en": "Mr Yuen said that X’s behaviour might make the Applicant think she consented to sexual intercourse, which was a point that the trial judge failed to stress to the jury. This court is of the view that the trial judge’s directions to the jury in this regard were adequate.", "zh-HK": "袁大律師說，X的行為可能令申請人以為她同意性交，但原審法官卻沒有向陪審團強調這點。本庭認為，原審法官就這方面的證據向陪審團的指引是充分的。" } }, { "doc_id": 98, "seg_id": 41, "translation": { "en": "As to the main defence raised by the Applicant that X made a rape complaint as she was probably not happy with his ejaculation inside her, the trial judge said to the jury that they might ask themselves whether X would make a false accusation due to the Applicant’s ejaculation inside her without wearing a condom or she was really raped. Mr Yuen submitted that this was a partial statement. This court does not agree. We find that the words of the trial judge were neutral without any prejudice.", "zh-HK": "至於申請人的主要辯解，即X可能不滿他在她體內射精，所以投訴被強姦，原審法官向陪審團說，他們可能會問自己X會否因不滿意申請人沒用避孕套而在她體內射精作出虛假指控，還是真的被強姦。袁大律師說這是偏頗的說法。本庭不同意，本庭認為原審法官的說法中性，不帶任何偏見。" } }, { "doc_id": 98, "seg_id": 42, "translation": { "en": "Ground of appeal 4", "zh-HK": "上訴理由四" } }, { "doc_id": 98, "seg_id": 43, "translation": { "en": "This ground concerned the inference direction.", "zh-HK": "這個上許理由涉及推論的指引。" } }, { "doc_id": 98, "seg_id": 44, "translation": { "en": "Mr Yuen submitted that on how to draw inference, how to consider if the Applicant was reckless as to whether X disagreed to sexual intercourse and how to consider the change of mind situation, the trial judge gave unclear, inaccurate and confusing directions to the jury.", "zh-HK": "袁大律師說，原審法官就如何作出推論，如何考慮申請人是否罔顧X是否不同意性交，及如何考慮改變心意的情況，向陪審團發出不清晰，不準確及容易令人混淆的指引。" } }, { "doc_id": 98, "seg_id": 45, "translation": { "en": "Strictly speaking, the trial judge needed not give any inference directions as X never said that she consented to sexual intercourse at a certain point of time but changed her mind later. That said, taking it as a whole, this court does not find anything wrong with the “reckless” direction given by the trial judge, nor did it confuse the jury or make the conviction unsafe.", "zh-HK": "嚴格說來，原審法官其實可以不必就推論給予指引，因為X沒有說過她曾在某階段同意性交，然後改變心意。雖然如此，本庭認為原審法官關於「罔顧」這點的指引，整體而言並無不妥之處，不會混淆陪審團，或令定罪變為不穩當。" } }, { "doc_id": 98, "seg_id": 46, "translation": { "en": "Ground of appeal 5", "zh-HK": "上訴理由五" } }, { "doc_id": 98, "seg_id": 47, "translation": { "en": "Mr Yuen submitted that certain comments made by the prosecutor in the final submissions were unfair to the Applicant and might easily confuse the jury, but the trial judge made no clarification and rectification when he gave directions to the jury.", "zh-HK": "袁大律師說，原審法官就主控官在結案陳詞中作出一些對申請人不公及易令陪審團混淆的論點，沒有在引導陪審團時澄清及修正。" } }, { "doc_id": 98, "seg_id": 48, "translation": { "en": "This court has read the transcript regarding the prosecutor’s final submissions. While some of the wordings used by the prosecutor were not that desirable, they were too trivial to cause any unfairness or confusion. More importantly, not only did Mr Kwan never ask the trial judge to make clarification or rectification to the jury, he also tried to refute the prosecutor’s argument at great length in the early part of his final submissions. No doubt the jury was able to understand the arguments of both sides without being confused by the prosecutor’s wordings.", "zh-HK": "本庭看過主控官結案陳詞的記錄謄本，即使主控官某些用詞不算太理想，但這只屬無關痛癢，不會造成不公或令人混淆之處。更重要的是，關大律師不僅從沒有要求原審法官向陪審團指正或澄清，更在結案陳詞初段便大篇幅地反駁主控官的論點。陪審團當能充分了解雙方的說法，亦不會被主控官的用詞混淆。" } }, { "doc_id": 98, "seg_id": 49, "translation": { "en": "Ground of appeal 6", "zh-HK": "上訴理由六" } }, { "doc_id": 98, "seg_id": 50, "translation": { "en": "Mr Yuen submitted that the trial judge should not have given the jury a lies direction.", "zh-HK": "袁大律師認為，原審法官不應向陪審團作出謊言指引。" } }, { "doc_id": 98, "seg_id": 51, "translation": { "en": "What was not in dispute was, the Applicant admitted he told lies in 2 aspects: he used a false name when he contacted X and falsely claimed himself to be a manager of a modelling agency. The trial judge had discussion with both the prosecution and the defence on whether it was necessary to give a lies direction to the jury. The prosecution’s position then was neutral whereas that of the defence was negative since the prosecution was not relying on this to strengthen its case. The trial judge said he was not minded to give “a full lies direction” either. But in order to avoid any improper consideration of the Applicant’s lies by the jury, the trial judge made it clear that even if the Applicant did tell lies, this was neither probative of his guilt nor supportive of the prosecution case. The trial judge also made it expressly clear that whether the Applicant told lies or concealed the truth was a finding of facts which the jury had to make. Should the jury find the Applicant did tell lies or conceal the truth, they could take this into consideration when they dealt with the Applicant’s integrity and the respective mental states of the Applicant and X. The trial judge also specifically reminded the jury that they had to bear in mind the burden of proof was on the prosecution, they could not convict the Applicant unless the prosecution had proved all the ingredients of the offence. Even if the Applicant had told lies or concealed the truth it was not sufficient to support a conviction.", "zh-HK": "不爭議的事實是，申請人承認曾就兩點說謊，即他和X交往時用了假名字，並且訛稱自己是模特兒公司經理人。原審法官曾和控辯雙方商討是否需要向陪審團作出謊言指引。當時控方立場中性，而辯方則認為不需要，因為控方不依賴申請人曾撒謊而加強控方案情。原審法官亦說沒有打算作出「全面的謊言指引」，但是為免陪審團不當地考慮申請人的謊言，原審法官清楚告訴他們，即使申請人說謊，也不是他有罪的證據，控方案情也不會因此而加強。原審法官亦有向陪審團表明，申請人有否說謊或隱瞞事實是陪審團要作的事實裁斷，如果他們肯定申請人有說謊或隱瞞事實，在處理申請人的誠信和他與X兩人分別的意念時，他們可以將申請人有說謊或隱瞞事實一事考慮在內。原審法官還特別提醒陪審團，必須謹記舉證責任在控方身上，控方必須證明所有罪行元素時，他們才能將申請人定罪，而即使申請人有說謊或隱瞞事實並不足夠支持定罪。" } }, { "doc_id": 98, "seg_id": 52, "translation": { "en": "This court is of the view that the directions of the trial judge caused no prejudice to the Applicant, they were indeed ensuring fairness to the Applicant.", "zh-HK": "本庭認為，原審法官的指引不僅沒有損害申請人的利益，反而是對他公平的做法。" } }, { "doc_id": 98, "seg_id": 53, "translation": { "en": "None of the grounds of appeal against conviction can be substantiated and this court refuses the Applicant’s conviction appeal accordingly.", "zh-HK": "針對定罪的上訴理由無一成立，因此本庭不批準申請人就定罪上訴。" } }, { "doc_id": 98, "seg_id": 54, "translation": { "en": "Sentence application", "zh-HK": "刑期申請" } }, { "doc_id": 98, "seg_id": 55, "translation": { "en": "The Applicant raised 2 grounds of appeal: (1) the trial judge neglected the evidence that X did consent to sexual intercourse or intimate acts, and the evidence that the Applicant was caused to believe or mistakenly believe X consented to sexual intercourse or intimate acts; (2) the trial judge neglected the evidence that X changed her mind about consent to sexual intercourse.", "zh-HK": "申請人提出兩個上訴理由：(1) 原審法官忽略X曾同意性交或親暱行為及忽略一些令申請人相信或誤會X曾同意性交或親暱行為的部份證供；(2) 原審法官忽略X就是否同意性交有改變主意的部份證供。" } }, { "doc_id": 98, "seg_id": 56, "translation": { "en": "These 2 grounds were not supported by any evidence. X testified that she consented to certain intimate acts after being persuaded by the Applicant and under the environment created by him; she never agreed to sexual intercourse and got the Applicant to make a “pinkie promise” that there would only be rubbing of genitals. As the trial judge said, the Applicant had used force before he entered her. The circumstances at the material time, the difference in their builds and X’s foolish acceptance of the Applicant’s promise all created the opportunity for the Applicant to take advantage of her. This was in no way a change of mind situation. It should not even be mentioned in the same breath with a change of mind situation. It is clear from the unanimous verdict that the jury accepted what X said. In other words, Mr Yuen’s either argument, that it was possible that X did not object to sexual intercourse or that the Applicant did genuinely believe (or misunderstand) X consented to sexual intercourse, could not be substantiated.", "zh-HK": "這兩項理由都沒有任何證據支持。X的證供是，在申請人游說和營造的環境下，同意某些親暱行為，但她一直不同意性交，還要申請人「勾手指」承諾只可以性器官磨擦。正如原審法官所說，申請人進入X身體之前已使用了武力，以當時環境，兩人體形的分別，X愚蠢地接受申請人的承諾而讓其有機可乘，完全不是一個改變心意的情況，更不可與改變心意的情況相提並論。陪審團一致有罪的裁定說明，他們接納X的說法。換言之，袁大律師的主張，即X有可能並非不同意性交，或申請人有可能真誠地相信（或誤會）X同意性交，是不可能成立的。" } }, { "doc_id": 98, "seg_id": 57, "translation": { "en": "When sentencing, the trial judge took the background of the Applicant as well as the mitigating factors into consideration. What aggravated the case included the Applicant’s evil intent towards X (a 17-year-old F.6 student) at the outset. He created a trap and an environment which were favourable for assaulting X. After gaining X’s trust by various means, he forced himself inside her. The trial judge stressed that the Applicant’s not using a condom and ejaculation inside X had put X in worry that she might get pregnant and infection in her lower parts, for that she had to undergo medical examinations for months. The trial judge noted that the Applicant even tried to defame X at trial by saying she was engaged in compensated dating. That being so, his remorse, if any, would not be a reason for sentence reduction.", "zh-HK": "在判刑時，原審法官考慮了申請人的背景和求情理由，本案案情嚴重之處，包括申請人一開始就對X（一個17歲的中六學生）圖謀不軌，設下圈套，製造一個有利於侵犯X的環境，積極地施以手段，利用X對他的信任，強行進入X的身體。原審法官強調申請人沒有使用避孕套，更曾在X體內射精，令X憂慮會懷孕及下體會受到感染而進行多個月的檢查。原審法官指出申請人在審訊時仍罔稱X從事援交，毀壞她的名譽，故即使他有悔意，亦不是減刑的原因。" } }, { "doc_id": 98, "seg_id": 58, "translation": { "en": "This court agrees to the sentence imposed by the trial judge and his reasons.", "zh-HK": "本庭認同原審法官的判刑和理據。" } }, { "doc_id": 98, "seg_id": 59, "translation": { "en": "This court must say that 6 years imprisonment is in no way manifestly excessive. It is rather lenient indeed.", "zh-HK": "本庭必須指出，6年的刑期不但並非明顯過重，反而是寬大的刑罰。" } }, { "doc_id": 98, "seg_id": 60, "translation": { "en": "Hence the Applicant’s appeal against sentence is also refused.", "zh-HK": "因此本庭亦拒絕申請人就刑期提出上訴。" } }, { "doc_id": 98, "seg_id": 61, "translation": { "en": "Mr Edmond Lee, SADPP, of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員李俊文代表。" } }, { "doc_id": 98, "seg_id": 62, "translation": { "en": "Mr Bernard Yuen, instructed by Yeung Adrian & Cheng, for the Applicant", "zh-HK": "申請人：由楊永安、鄭文森律師事務所轉聘袁國華大律師代表。" } }, { "doc_id": 99, "seg_id": 1, "translation": { "en": "Hon Barnes J (giving the judgment of the Court):", "zh-HK": "原訟法庭法官張慧玲頒發上訴法庭判案理由書 ：" } }, { "doc_id": 99, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 99, "seg_id": 3, "translation": { "en": "The 1st Applicant Wut Yiu Lun (hereinafter “D1”) and the 2nd Applicant Tsang Chi Mei (hereinafter “D2”) were charged before Deputy Judge Wong of the District Court with the following offences:", "zh-HK": "第一申請人屈‍耀‍倫(下稱第一被告)及第二申請人曾‍芝‍媚(下稱第二被告)在區域法院暫委法官黃‍汝‍榮席前被控以下控罪：" } }, { "doc_id": 99, "seg_id": 4, "translation": { "en": "Charge 1 (against D1 and D2)", "zh-HK": "第一項控罪(訴第一及第二被告)" } }, { "doc_id": 99, "seg_id": 5, "translation": { "en": "“Trafficking in a substance purported to be a dangerous drug”, contrary to section 4A(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong.", "zh-HK": "「販運看來是危險藥物的物質」，違反香港法例第 134 章《危險藥物條例》第 4A(1)(a)及(3)‍條。" } }, { "doc_id": 99, "seg_id": 6, "translation": { "en": "Charge 2 (against D1 and D2)", "zh-HK": "第二項控罪(訴第一及第二被告)" } }, { "doc_id": 99, "seg_id": 7, "translation": { "en": "“Trafficking in dangerous drugs” (namely 2 tablets containing a total of 0.01 gramme of N, N-dimethylamphetamine; 4 milligrammes of methamphetamine, 0.06 grammes of 3, 4-dimethylamphetamine and 0.05 grammes of 3, 4-methylenedioxy-methamphetamine), contrary to section 4(1)(a) and (3) of the abovementioned Dangerous Drugs Ordinance.", "zh-HK": "「販運危險藥物」(即2 片內含共0.01 克N, N-二甲基安非他明、4 毫克甲基苯丙胺、0.06 克3, 4-亞甲二氧基安非他明及0.05 克3, 4-亞甲二氧基甲基安非他明的片劑)，違反上述《危險藥物條例》第 4(1)(a)及(3)‍條。" } }, { "doc_id": 99, "seg_id": 8, "translation": { "en": "Charge 3 (against D1)", "zh-HK": "第三項控罪(訴第一被告)" } }, { "doc_id": 99, "seg_id": 9, "translation": { "en": "“Trafficking in a substance purported to be dangerous drug”.", "zh-HK": "「販運看來是危險藥物的物質」。" } }, { "doc_id": 99, "seg_id": 10, "translation": { "en": "Charge 4 (against D1)", "zh-HK": "第四項控罪(訴第一被告)" } }, { "doc_id": 99, "seg_id": 11, "translation": { "en": "“Trafficking in dangerous drugs” (namely 3 tablets containing a total of 0.01 gramme of N, N-dimethylamphetamine; 7 milligrammes methamphetamine, 0.09 grammes 3, 4-dimethylamphetamine and 0.08 grammes 3, 4- methylenedioxy-methamphetamine).", "zh-HK": "「販運危險藥物」(即3 片內含共0.01 克N, N-二甲基安非他明、7 毫克基苯丙胺、0.09 克3, 4-亞甲二氧基安非他明及0.08 克3, 4-亞甲二氧基甲基安非他明的片劑)。" } }, { "doc_id": 99, "seg_id": 12, "translation": { "en": "D1 pleaded guilty to the 4 charges and was sentenced to 3 years’ imprisonment.", "zh-HK": "第一被告承認四項控罪，被判入獄3 年。" } }, { "doc_id": 99, "seg_id": 13, "translation": { "en": "D2, who pleaded not guilty, was convicted after trial and sentenced to 3 years’ imprisonment.", "zh-HK": "第二被告否認控罪，經審訊後被裁定罪名成立，被判監禁3 年。" } }, { "doc_id": 99, "seg_id": 14, "translation": { "en": "Both Defendants applied for leave to appeal against sentence. After hearing, we made the following orders:", "zh-HK": "第一及第二被告均就判刑提出上訴申請。本庭在聆訊後裁定如下：" } }, { "doc_id": 99, "seg_id": 15, "translation": { "en": "D1", "zh-HK": "就第一被告" } }, { "doc_id": 99, "seg_id": 16, "translation": { "en": "As the Judge had mixed up the charges in sentencing by swapping the sentences for Charges 1 and 2 and swapping the sentences for Charges 3 and 4, we allowed the application for leave, treated it as the appeal itself and allowed the appeal formally. The sentences were altered to 6 months for Charges 1 and 3 (to be served concurrently) and 2 years for Charges 2 and 4 (to be served concurrently). One of the 2 years for Charge 4 is to be served consecutively to the 2 years for Charge 3, making a total term of 3 years.", "zh-HK": "因法官判刑時將控罪號碼混淆，將控罪‍(一)的判刑與控罪‍(二)對調，及將控罪‍(三)的判刑與(四)對調，本庭批准上訴申請，並視申請為正式上訴，上訴形式上得直。判刑改為控罪‍(一)、(三) 6 個月(同期執行)和控罪‍(二)、(四) 2 年(同期執行)。控罪‍(四)的2 年其中一年與控罪‍(二)的2 年分期執行，合共3 年。" } }, { "doc_id": 99, "seg_id": 17, "translation": { "en": "D2", "zh-HK": "就第二被告" } }, { "doc_id": 99, "seg_id": 18, "translation": { "en": "The application for leave to appeal was allowed and treated as the appeal itself. The sentence for Charge 2 was set aside and replaced with 2 years’ imprisonment, to be served concurrently with the sentence for Charge 1, making a total term of 2 years.", "zh-HK": "批准上訴申請，並視申請為正式上訴，就控罪‍(二)判刑擱置，改監禁2 年，與控罪‍(一)同期執行，合共2 年。" } }, { "doc_id": 99, "seg_id": 19, "translation": { "en": "We now set out the reasons for our judgment.", "zh-HK": "現本庭將理據道出。" } }, { "doc_id": 99, "seg_id": 20, "translation": { "en": "Facts of the case", "zh-HK": "案情" } }, { "doc_id": 99, "seg_id": 21, "translation": { "en": "The facts indicated that on 3 December 2004, during an anti-drug operation at Cyber 8 Disco, D2 told an undercover police officer (“the undercover”) that there were “ketamine” and “fing tau”/“head-swinging pills” for sale at $100 each. The undercover told D2 that he would like to buy 3 “ketamine” and 2 “fing tau”/“head-swinging pills”.", "zh-HK": "案情顯示在2004 年12 月3 日，臥底警員(“臥底”)在Cyber 8 Disco內作反毒品行動時，第二被告向臥底表示可出售「K仔」及「fing頭」/「搖頭丸」，每款100 元。臥底向第二被告表示欲購三‍粒「K仔」及兩粒「fing頭」/「搖頭丸」。" } }, { "doc_id": 99, "seg_id": 22, "translation": { "en": "Thereafter, D2 led the undercover to Table No. 53. After re-confirming the type and quantity of dangerous drugs the undercover wanted to buy, D2 called another person. D1 arrived soon afterwards. D2 introduced D1 to the undercover as her partner. D1 took out the dangerous drugs from his pants and handed them to the undercover. The undercover handed $500 to D1. D1 indicated that the undercover could contact him through D2 in future. D2 concurred and said that she was responsible for looking for customers and D1 was responsible for the trading, and they did business at the Disco once a week (Charges 1 and 2).", "zh-HK": "其後第二被告帶臥底到53 號檯 。第二被告再次向臥底確定他早前欲購危險藥物的種類及數量後，致電某人。第一被告不久到場。第二被告向臥底介紹第一被告為她的拍檔。第一被告從褲袋取出危險藥物交予臥底。臥底將500 元交給第一被告。第一被告表示將來可透過第二被告聯絡他。第二被告亦和應，指她負責揾客，而第‍一被告負責交易，每星期在Disco內做一次生意(控罪‍一及二)。" } }, { "doc_id": 99, "seg_id": 23, "translation": { "en": "On 10 December 2004, the undercover visited Cyber 8 Disco again and met D1. D1 indicated to the undercover that he had “3 ketamine pills” and “3 candies” for sale at $120 each. After the undercover agreed to buy them, D1 left. Later D1 returned to the Disco and handed the dangerous drugs to the undercover. The undercover also handed $720 to D1 (Charges 3 and 4).", "zh-HK": "在2004 年12 月10 日，臥底再到Cyber 8 Disco，遇見第‍一被告。第一被告向臥底表示有「3 粒K仔」及「3 粒糖」，每粒售價120 元。臥底同意購買後，第一被告離開。第一被告稍後返回Disco，將危險藥物交給臥底，臥底亦將720 元交給第一被告(控罪三及四)。" } }, { "doc_id": 99, "seg_id": 24, "translation": { "en": "Reasons for sentence", "zh-HK": "判刑理由" } }, { "doc_id": 99, "seg_id": 25, "translation": { "en": "In sentencing, Judge Wong considered that the dangerous drugs involved were a “cocktail” mixture of substances, including “ice”, N, N-dimethylamphetamine (NNMDA), 3, 4-dimethylamphetamine (MDA) and 3, 4-methylenedioxy-methamphetamine (MDMA). After considering the relevant case law, he used the weight of the “ice”, which was the most poisonous of the lot, as the basis for sentencing. He applied the sentencing guidelines in AG v Ching Kwok Hung [1991] 2 HKLR 125 and adopted a starting point of 3 years.", "zh-HK": "黃‍法官在判刑時考慮到涉案危險藥物是「雞尾式」的混合物，包含了冰毒、二甲基安非他明(NNDMA)，3、4 亞甲二氧基安非他明(MDA)及3、4 亞甲二氧甲基安非他明(MDMA)。他考慮了相關案例，以毒性最强的冰的重量作為計算基礎。他依據程國雄 [1991] 2 HKLR 125的量刑指引，以3 年為量刑起點。" } }, { "doc_id": 99, "seg_id": 26, "translation": { "en": "For the offence of trafficking in a substance purported to be a dangerous drug, Judge Wong adopted a starting point of 9 months. He adopted the same starting point for D1 and D2 as they were accomplices.", "zh-HK": "就販運看來是危險藥物的物質罪，黃‍法官以9 個月為量刑起點。黃‍法官認為第一及第二被告是共犯，量刑起點一致。" } }, { "doc_id": 99, "seg_id": 27, "translation": { "en": "D1 pleaded guilty and received a one-third reduction in sentence. As Charges 1 and 2 originated from the same incident, the sentences were to be served concurrently. The same applied to Charges 3 and 4. However, as the incidents for the 4 charges occurred on different dates, parts of the sentence were to be served consecutively, resulting in a total sentence of 3 years.", "zh-HK": "第一被告認罪，可得三份之一減刑，控罪(一)及(二)源於同一事件，同期執行，(三)、(四)亦然。但四項罪行在不同日子發生，故刑期部份分期，總刑期為3 年。" } }, { "doc_id": 99, "seg_id": 28, "translation": { "en": "As for D2, who was convicted after trial, the sentences for the offences were 9 months and 3 years respectively, to be served concurrently, making a total of 3 years.", "zh-HK": "就第‍二被告，她於審訊後被定罪，判刑9 個月及3 年，同期執行，合共3 年。" } }, { "doc_id": 99, "seg_id": 29, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 99, "seg_id": 30, "translation": { "en": "Mr Ng, Counsel for D1, raised the following grounds of appeal:", "zh-HK": "第一被告代表吳‍政‍煌大律師提出的上訴理由如下：" } }, { "doc_id": 99, "seg_id": 31, "translation": { "en": "原審法官錯誤地混淆控罪‍(一)與(二)及控罪‍(三)與(四)的判刑；\t(1)\tthe trial judge erroneously mixed up the sentences for Charges (1) and (2) with those for Charges (3) and (4);", "zh-HK": "(1)" } }, { "doc_id": 99, "seg_id": 32, "translation": { "en": "原審法官未有考慮證供上第‍一被告並無出售冰毒的意圖；及\t(2)\tthe trial judge failed to consider that on the evidence, D1 had no intention to sell “ice”;", "zh-HK": "(2)" } }, { "doc_id": 99, "seg_id": 33, "translation": { "en": "3 年量刑起點明顯過高。\t(3)\tthe starting point of 3 years was manifestly excessive.", "zh-HK": "(3)" } }, { "doc_id": 99, "seg_id": 34, "translation": { "en": "Mr Cheng, Counsel for D2, put forward the ground of appeal that the trial judge failed to consider adequately or at all that D2 did not know that the relevant drugs were a mixture of various types of dangerous drugs.", "zh-HK": "第‍二被告代表鄭‍明‍斌大律師提出的上訴理由是原審法官並沒有考慮到或充分地考慮第‍二被告並不知悉相關之毒品是由多種不同類別的危險藥物所組成。" } }, { "doc_id": 99, "seg_id": 35, "translation": { "en": "Mixing up of charges", "zh-HK": "混淆控罪" } }, { "doc_id": 99, "seg_id": 36, "translation": { "en": "We first deal with Mr Ng’s complaint about the mixing up of the charges by Judge Wong. According to the indictment, Charges 1 and 3 were for “trafficking in a substance purported to be a dangerous drug” and Charges 2 and 4 “trafficking in dangerous drugs”.", "zh-HK": "本庭首先處理吳‍大律師就黃‍法官混淆控罪此批評。根據公訴書，控罪‍(一)及(三)是「販運看來是危險藥物的物質」罪，而控罪‍(二)及(四)是「販運危險藥物」罪。" } }, { "doc_id": 99, "seg_id": 37, "translation": { "en": "In sentencing, Judge Wong analyzed and considered these two distinct offences. Finally, in passing sentence, he indeed mixed up Charges 1 and 2 and also Charges 3 and 4. However, putting thing in context, it is clear that Judge Wong had adopted a starting point of 3 years for the offence of “trafficking in dangerous drugs” and 9 months for the offence of “trafficking in a substance purported to be a dangerous drug”. This notwithstanding, we still have to revise the sentence as a matter of formality.", "zh-HK": "黃‍法官在判刑時就兩類不同罪行作出分析及考慮。他在最後宣判時，確是將控罪‍(一)及(二)對調，亦將控罪‍(三)及(四)對調。但縱觀上文下理，明顯黃‍法官在判刑時，就「販運危險藥物」罪他採納3 年為量刑起點，而就「販運看來是危險藥物的物質」罪，他則採納9 個月為量刑起點。然而，形式上本庭有需要就判刑作出更正。" } }, { "doc_id": 99, "seg_id": 38, "translation": { "en": "“Cocktail” dangerous drugs", "zh-HK": "「雞尾式」混合危險藥物" } }, { "doc_id": 99, "seg_id": 39, "translation": { "en": "In HKSAR v Yip Wai Yin and Wong Siu Han, CACC 80/2003, the Court of Appeal commented on the sentencing approach for “cocktail” drugs. The Court considered that a combined approach was fairer and more realistic and reasonable. Under this combined approach, the sentencer uses the quantity of the most poisonous drug as the basis of sentencing and then, if he considers appropriate, adjusts the sentence upwards to take into account the other milder drugs.", "zh-HK": "在香港特別行政區訴葉偉賢及黃肇行，CACC80/2003一案，上訴法庭論及就「雞尾」藥物的判刑方法。上訴法庭認為以組合量刑方法(combined approach)處理較為公平、真實和合理。組合量刑方法即是以毒性最强藥物的份量作為計算基礎，如頒刑者認為恰當，可把刑罰上調，籍以涵蓋其他毒性較溫和的危險藥物。" } }, { "doc_id": 99, "seg_id": 40, "translation": { "en": "The approach adopted by Judge Wong was obviously that accepted by the Court of Appeal. He used the quantity of “ice” as the basis of sentencing, applied the sentencing guidelines in Ching Kwok Hung and adopted 3 years as the starting point. He stated clearly that he had not adjusted the sentence upwards.", "zh-HK": "無可置疑黃‍法官判刑的方法正是上訴庭所認同的方法，他以「冰」毒為計算基礎，引用程國雄案中的刑期指引，以3 年為刑期起點。黃‍法官明言他並無將刑期上調。" } }, { "doc_id": 99, "seg_id": 41, "translation": { "en": "Mr Ng submitted that, although the guidelines in Ching Kwok Hung indicated that the sentence for trafficking in less than 10 grammes of “ice” was 3 to 7 years, this did not mean that a starting point of 3 years must be adopted even for trafficking in a small amount of “ice”.", "zh-HK": "吳大律師指根據程國雄的量刑指引，販運10 克以下的冰毒，刑期為3 至7 年，但不等如即使販運微量冰毒，亦一定要以3 年監禁為起點。" } }, { "doc_id": 99, "seg_id": 42, "translation": { "en": "Mr Ng cited the case of HKSAR v Ko Sai Ho, HCMA 837/2001, the facts of which were said to be similar to those of the present case. The defendant in that case trafficked in dangerous drugs to an undercover police officer on 4 occasions. On appeal, the Deputy Judge adopted a starting point of 18 months and imposed a total sentence of 2 years.", "zh-HK": "吳大律師引用案例高世豪HCMA837/2001，指該案案情與本案相似。該案被告4 次販運危險藥物予卧底警員。上訴時暫委法官認為量刑起點是18 個月，總刑期為2 年。" } }, { "doc_id": 99, "seg_id": 43, "translation": { "en": "At the appeal hearing, we pointed out that Ko Sai Ho was a magistracy appeal case and not binding on this Court.", "zh-HK": "本庭在聆訊時已指出高世豪是裁判法庭上訴案件，對本庭並無約束力。" } }, { "doc_id": 99, "seg_id": 44, "translation": { "en": "In Ching Kwok Hung, the Court of Appeal laid down the tariff for the offence of trafficking in “ice”. For trafficking in up to 12 grammes of ice (the Court of Appeal subsequently held in HKSAR v Capitania Edwin F, CACC 28/2004 that “12 grammes” should in fact read “10 grammes”), the sentence is 3 to 7 years. Although 4 milligrammes (0.004 grammes) is a small quantity, as far as trafficking in “ice” is concerned, the court will still not deviate from the tariff unless there are exceptional factors to the contrary.", "zh-HK": "在程國雄一案，上訴庭就冰毒頒下量刑指引，販運冰毒份量至12 克(上訴庭其後在HKSAR v. Capitania Edwin F, CACC28/2004指出該12 克應為10 克)，刑期是在3至 7 年間。雖則4 毫克(0.004 克)份量輕微，但以販運冰毒而言，若無特殊因素，法庭在量刑時不會偏離指引。" } }, { "doc_id": 99, "seg_id": 45, "translation": { "en": "Judge Wong took into account the following circumstances in sentencing:", "zh-HK": "法官在判刑時考慮了下列情況：" } }, { "doc_id": 99, "seg_id": 46, "translation": { "en": "“… Cyber 8 Disco is notorious as a hotspot for selling drugs. Those who abuse cocktail drugs often come across ‘ice’ unknowingly, and by the time they realize it, it is already too late. They find it difficult to tear themselves away from the drug and they harm themselves, their families and society as a whole. In the present case, although the quantity of ‘ice’ involved is small, there are no factors to justify a deviation from the relevant sentencing guidelines…”", "zh-HK": "「……惟Cyber 8 Disco乃城中人所共知，惡名遠播之販藥熱點，濫用雞尾酒式危險者，往往觸及『冰』毒而不自知，到如夢初醒時，已難以自拔，累己害人，禍延家國。本案『冰』毒數量雖不多，但不存令本席偏離相關判刑指引之因素。……」" } }, { "doc_id": 99, "seg_id": 47, "translation": { "en": "In view of the circumstances in which the dangerous drugs were sold in the Disco in question, we agree with the judgment of Judge Wong that there was nothing to justify a deviation from the starting point of 3 years.", "zh-HK": "以第‍一被告在涉案Disco出售危險藥物的情況，本庭認同黃‍法官的裁定，無因素令法官偏離3 年量刑此起點。" } }, { "doc_id": 99, "seg_id": 48, "translation": { "en": "As far as D1 is concerned, leaving aside the question of whether he mistakenly believed that the dangerous drugs being sold were relatively mild drugs, a starting point of 3 years for Charge 2 is correct.", "zh-HK": "撇開被告是否錯誤相信販運的危險藥物為藥性較輕的危險藥物，就控罪‍(二)，以第一被告而言，量刑起點是3 年是正確的。" } }, { "doc_id": 99, "seg_id": 49, "translation": { "en": "As for D2, her situation was in our view slightly different from that of D1. Although D2 claimed to be D1’s “partner” and told the undercover that she was responsible for “looking for customers”, the evidence indicated that she was actually an “intermediary”. She had no contact with the dangerous drugs or the money used to buy the drugs, nor was she a courier of the drugs. In light of her role as an “intermediary”, her culpability was less than that of D1 who actually supplied the dangerous drugs, and the starting point for her should be 2½ years.", "zh-HK": "但就第‍二被告，本庭認為她的情況與第一被告不盡相同。雖則第‍二被告向卧底自稱是第一被告的「拍檔」，她負責「揾客」，但證據顯示她其實是位「中介人」。她無接觸危險藥物或用作買危險藥物的金錢，她亦並非一名傳遞危險藥物的人(courier)。基於她的角色是「中介人」，在整件事件她的罪責較實質供應危險藥物的第一被告為輕，量刑起點應為2½ 年。" } }, { "doc_id": 99, "seg_id": 50, "translation": { "en": "On Charge 4, as D1 committed the offence of trafficking in dangerous drugs for a second time within one week, his culpability for Charge 4 was greater than that for Charge 2. The starting point of 3 years adopted by Judge Wong is not excessive.", "zh-HK": "就控罪‍(四)，第一被告在短短一星期時間再次干犯販運危險藥物罪行，罪責其實較控罪‍(二)為重。黃‍法官採納3 年為量刑起點絕非過重。" } }, { "doc_id": 99, "seg_id": 51, "translation": { "en": "Both Defendants do not have previous convictions. We reiterate that, for serious offences such as “trafficking in dangerous drugs”, a defendant’s clear record does not have a significant bearing on the sentence. This Court (differently constituted) has emphasized more than once that generally speaking, a clear record is “neutral” unless there is evidence to show that the defendant was previously of “positive good character”, e.g. he had done voluntary work for the community. There is no such evidence in the present case (see HKSAR v Kita Yasushi & another, CACC 470/2006, HKSAR v Wen Zelang [2006] 4 HKLRD 460, and HKSAR v Leung Shuk Man [2002] 3 HKC 424).", "zh-HK": "兩名被告均為先前無刑事紀錄的人，本庭重申以「販運危險藥物」此等嚴重罪行而言，被告先前無刑事紀錄對量刑無大影響。本庭(由不同法官組成)不止一次强調，一般而言，先前無刑事紀錄是「中立」的，除非有證據顯示被告的先前「品格正面」，如曾在社會任無薪義工，在本案無此證據。(參看HKSAR v. Kita Yasushi & another, CACC470/2006，HKSAR v. Wen Zelang(溫澤浪) [2006] 4 HKLRD 460，及HKSAR v. Leung Shuk Man [2002] 3 HKC 424。)" } }, { "doc_id": 99, "seg_id": 52, "translation": { "en": "Mistaken belief that the dangerous drugs being trafficked in were of a milder nature", "zh-HK": "錯誤相信販運的危險藥物為毒性較輕的危險藥物" } }, { "doc_id": 99, "seg_id": 53, "translation": { "en": "In sentencing for “trafficking in dangerous drugs”, the court may consider as a mitigating factor the defendant’s mistaken belief that he was trafficking in a less serious dangerous drug instead of the one he was actually trafficking in (see R v Bilinski (1988) 86 Cr. App. R. 147, and Yip Wai Yin).", "zh-HK": "在判罰「販運危險藥物」時，法庭可考慮被告人錯誤相信他所販運的危險藥物是毒性較輕的危險藥物，而不是他確實販運的那種危險藥物，作為減刑因素[參照R. v. Bilinski (1988) 86 Cr.App.R. 147，及葉偉賢案例]。" } }, { "doc_id": 99, "seg_id": 54, "translation": { "en": "In Yip Wai Yin, the Court of Appeal made it clear that there must be evidence to show that the defendant held this belief. The court will rarely rely on what the defendant says in mitigation without more. Unless there is already clear evidence to that effect, the defendant has to prove on a balance of probabilities that he held such belief.", "zh-HK": "在葉偉賢案例，上訴庭明言必須有證據支持被告有此信念。法庭很少會信賴在求情時的片面之詞。除非案中的證據已清晰顯示，否則被告要以相對可能性此基準顯示他有該信念。" } }, { "doc_id": 99, "seg_id": 55, "translation": { "en": "In HKSAR v Ko Man Yin, CACC 65/2005, Yeung JA stated in his judgment that the court did not have to accept the defendant’s claim that he held a mistaken belief as to the nature of the drugs. If the defendant raises this as a reason for reducing the sentence, he bears the burden of proving on a balance of probabilities that he did misunderstand the nature of the drugs. An exception is where the prosecution accepts the defendant’s argument or where the argument is supported by prosecution evidence. Yeung JA also pointed out that the court might conduct a hearing if necessary to decide whether the defendant’s claim was true.", "zh-HK": "在香港特別行政區訴高萬賢，CACC65/2005一案，上訴庭法官楊‍振‍權頒下判案書時指出法庭不一定要接納被告人聲稱有誤認毒品性質此說法。如被告人提出上述減刑理由，他有舉證責任，在相對可能性的舉證標準下證明他確有誤認毒品性質的情況。如控方接納被告人的說法，或該說法獲控方的證據支持者則屬例外。楊‍法官亦指有需要時，法庭更要進行聆訊，以決定被告人的聲稱是否屬實。" } }, { "doc_id": 99, "seg_id": 56, "translation": { "en": "In the present case, D1 never indicated during mitigation that he had mistakenly held that belief. Nor did he explain why he had not told the Judge about the mistaken belief. Although D1 did raise this point in his homemade Grounds of Appeal, the fact remains that he had never clearly indicated such belief to the Judge.", "zh-HK": "在本案，第一被告在求情時從無表示他有該錯誤信念，亦無解釋為何他沒有向法官提及該錯誤信念。雖然第一被告在他自行撰寫的上訴理由提及此點，事實上他從無向法官表明他有該錯誤信念。" } }, { "doc_id": 99, "seg_id": 57, "translation": { "en": "The evidence shows that the transaction between D1 and the undercover involved “fing tau” and “candies”. D1 was selling “fing tau” and the facts indicated that the tablets which contained dangerous drugs were “ecstasy”. This did not mean that D1, as “seller” and “supplier”, did not know that the “ecstasy” tablets contained “ice”.", "zh-HK": "證據顯示第一被告與卧底的交易涉及「fing頭」及「糖」。第一被告出售「fing頭」，案情亦顯示含有危險藥物的片劑是「忘我」，但這亦不等同作為「賣家」、「供應者」的第一被告不知悉「忘我」片劑內有冰毒。" } }, { "doc_id": 99, "seg_id": 58, "translation": { "en": "In HKSAR v Chan Yiu Hong, CACC 592/2002, Stuart-Moore VP said in his judgment:", "zh-HK": "在HKSAR v. Chan Yiu Hong，CACC592/2002，上訴庭副庭長司‍徒‍冕‍大法官在頒下判案書時說：" } }, { "doc_id": 99, "seg_id": 59, "translation": { "en": "‘Fing Tau’ may generally be understood by those in the community to refer to the drug known as ecstasy. However, it is widely known amongst dealers that drugs are often mixed together, whereas buyers may be induced by the use of the term ‘Fing Tau’ to believe that they are buying ecstasy, unaware that they are purchasing a cocktail of drugs which may or may not include ecstasy.", "zh-HK": "「雖然『fing頭』這詞，社會普遍理解為『忘我』、『狂喜』，但毒販廣泛知悉藥物通常為混合物，惟買方以為購買的是『忘我』，而不知道實質是購買危險藥物的混合物；而混合物可能有『忘我』成份，甚或根本無該成份。」" } }, { "doc_id": 99, "seg_id": 60, "translation": { "en": "In HKSAR v Li Chi Hung & others, CACC 18/2002, the supplier of the dangerous drugs pleaded not guilty, and the Court of Appeal held that the circumstances of the case were special and, giving the benefit of doubt to the supplier, reduced the starting point by one-fourth on account of the supplier’s mistaken belief that the drugs were milder in nature. In the present case, D1, who pleaded guilty, had an opportunity to tell Judge Wong about his mistaken belief, but he did not do so. Nor did he explain to us why he did not do so. There was also no evidence in the case to indicate that D1 “believed” that he was actually selling nothing other than “ecstasy” (i.e. MDMA) or that he had exercised due care in ensuring that he was indeed selling “ecstasy” rather than a mixture containing “ice”. In these circumstances, we are unable to give him the benefit of doubt.", "zh-HK": "雖然在HKSAR v. Li Chi Hung & others, CACC18/2002一案，案中的危險藥物供應者否認控罪，上訴庭仍指以該案獨特案情，給予該供應者疑點利益，以該供應者是誤信危險藥物為毒性較輕的危險藥物，將該案的量刑起點扣減四分之一，在本案，第一被告承認控罪，他有機會向黃‍法官提出他的錯誤信念，但他沒有如此做；亦無向本庭解釋為何他沒有如此做。案中亦無證據顯示第一被告「相信」他出售的真的只是「忘我」(即MDMA)，或是他已履行足夠審慎確保他出售的真的是「忘我」，而非含有冰毒的混合物。本庭不能在此情況下給予他疑點利益。" } }, { "doc_id": 99, "seg_id": 61, "translation": { "en": "As for D2, she pleaded not guilty and elected to give evidence at trial. She denied having offered to sell dangerous drugs to anyone and claimed that she only talked to the undercover because she thought he was a friend of her friend nicknamed “Chocolate”. She denied having claimed to be D1’s partner and stated that she had only purchased dangerous drugs from D1 on behalf of “Chocolate”, with delivery being arranged among themselves subsequently.", "zh-HK": "就第二被告，她否認控罪，亦選擇作供。她否認向任何人兜售危險藥物，她指她誤以為卧底是另一朋友「朱古力」的朋友，才跟他傾談。第二被告否認自稱是第一被告的拍擋，她只曾代「朱古力」向第一被告購買危險藥物，而稍後他們是自行交收的。" } }, { "doc_id": 99, "seg_id": 62, "translation": { "en": "Although D2 had not indicated at trial that she believed the dangerous drugs involved was indeed nothing more than “ecstasy”, we have taken into account that she was not the “seller” or “supplier”, she only played the role of an “intermediary” and she had no contact with the dangerous drugs. On the facts of the case and on a balance of probabilities, there is evidence to support D2’s mistaken belief that the dangerous drugs in question were milder in nature. We give her the benefit of doubt.", "zh-HK": "雖然第‍二被告在作證時並無表示她相信涉案的危險藥物真的只是「忘我」，本庭考慮到第‍二被告並非「賣家」或「供應者」，她的角色是「中介人」，她無接觸涉案危險藥物。以本案案情而言，在相對可能性此基準下，有證據支持第‍二被告誤信有關危險藥物是毒性較輕的危險藥物。本庭裁定第‍二被告可得疑點利益。" } }, { "doc_id": 99, "seg_id": 63, "translation": { "en": "We must stress that, although the facts as admitted by D1 indicated that D2 would have continued to work with him and supply dangerous drugs to others at the Disco, D2 was in fact convicted on Charges 1 and 2 in respect of the incident on 3 December.", "zh-HK": "本庭強調雖然第‍一被告承認的案情顯示第‍二被告會繼續與她合作，在Disco供應危險藥物予他人，但事實上第‍二被告是就12 月3 日的事件被裁定第‍一及第‍二項控罪罪名成立的。" } }, { "doc_id": 99, "seg_id": 64, "translation": { "en": "We hold that the starting point should be further reduced by 6 months, i.e. from 2½ years to 2 years.", "zh-HK": "本庭認為以2½ 年此量刑起點，應再扣減6 個月，起點應為2 年。" } }, { "doc_id": 99, "seg_id": 65, "translation": { "en": "For the above reasons, we made the relevant orders.", "zh-HK": "基於上述理由，本庭作出有關裁定。" } }, { "doc_id": 99, "seg_id": 66, "translation": { "en": "Ms Denise Chan, Senior Government Counsel, for the HKSAR.", "zh-HK": "答辯人：由律政司高級政府律師陳鳳珊代表香港特別行政區。" } }, { "doc_id": 99, "seg_id": 67, "translation": { "en": "Mr Alex Ng, instructed by Littlewoods, for the 1st Applicant.", "zh-HK": "第一申請人：由聶柏仁律師行委派吳政煌大律師代表。" } }, { "doc_id": 99, "seg_id": 68, "translation": { "en": "Mr Francis Cheng, instructed by Louis KY Pau & Co, for the 2nd Applicant.", "zh-HK": "第二申請人：由包建原律師行委派鄭明斌大律師代表。" } }, { "doc_id": 100, "seg_id": 1, "translation": { "en": "The Applicant (YHN) was the brother of the three victims (X,Y,Z).", "zh-HK": "申請人（YHN）是三名受害人（X、Y、Z）的哥哥。" } }, { "doc_id": 100, "seg_id": 2, "translation": { "en": "The Applicant was born on 24 June 1994, and X,Y,Z were triplets born on 10 May 1995. X,Y,Z were taken away by the Social Welfare Department since their early childhood and placed to live in different Children’s Homes.", "zh-HK": "申請人在1994年6月24日出生，而X、Y、Z是三胞胎，在1995年5月10日出生。X、Y、Z自小被社會福利署接走，並分配在不同兒童之家生活。" } }, { "doc_id": 100, "seg_id": 3, "translation": { "en": "In the summer vacation of 2005, X was permitted to return to her parents’ home and to live with the parents, the Applicant and an Indonesian maid. X was admitted to the New Comers’ Ward in 2006, and in the same year sent to the Po Leung Kuk where she lived till the summer vacation of 2010. X subsequently returned home to live with her parents and the Applicant.", "zh-HK": "2005年暑假，X獲准回到父母的住所和父母、申請人及一名印尼傭工一起居住。2006年，X入住“新生家”，並在同年搬到保良局生活至2010年暑假。其後，X返回家中和父母及申請人居住。" } }, { "doc_id": 100, "seg_id": 4, "translation": { "en": "Y was admitted to the New Comers’ Ward in 2004, and in the same year sent to the Po Leung Kuk where she lived till the summer vacation of 2008. Y subsequently returned home to live with her parents and the Applicant.", "zh-HK": "2004年，Y入住“新生家”，並在同年搬到保良局生活至2008年暑假。其後Y返回家中和父母及申請人居住。" } }, { "doc_id": 100, "seg_id": 5, "translation": { "en": "In 2004, Z was permitted to return to her parents’ home and live with the parents, the Applicant and an Indonesian maid.", "zh-HK": "2004年，Z獲准返回家中和父母、申請人及一名印尼傭工一起居住。" } }, { "doc_id": 100, "seg_id": 6, "translation": { "en": "It was the prosecution case that on multiple occasions between 1 October 2005 and 31 August 2008, the Applicant sexually abused X, Y and Z at home, for which the Applicant was charged with 8 charges.", "zh-HK": "控方指申請人在2005年10月1日至2008年8月31日期間，在家中多次性侵犯X、Y和Z，於是檢控申請人共8項控罪。" } }, { "doc_id": 100, "seg_id": 7, "translation": { "en": "The 1st and the 4th counts of indecent assault involved X. It was alleged that the Applicant on two occasions between 1 October and 3 October 2005, and between 29 July and 25 November 2006, indecently assaulted X.", "zh-HK": "第一項和第四項猥褻侵犯（即非禮罪）涉及X。控方指申請人在2005年10月1日至3日及2006年7月29日至11月25日期間兩次非禮X。" } }, { "doc_id": 100, "seg_id": 8, "translation": { "en": "The 6th and the 7th counts of indecent assault and the 8th count of attempted rape involved Y. It was alleged that the Applicant on two occasions between 1 January 2007 and 31 December 2007 indecently assaulted Y, and that he attempted to rape Y between 1 July and 31 August 2008.", "zh-HK": "第六、七項非禮罪和第八項企圖強姦罪涉及Y。控方指申請人在2007年1月1日至2007年12月31日期間兩次非禮Y及在2008年7月1日至8月31日期間企圖強姦Y。" } }, { "doc_id": 100, "seg_id": 9, "translation": { "en": "The 2nd, 3rd and 5th counts of indecent assault involved Z. It was alleged that the Applicant on three occasions between 1 January and 31 December 2006, and between 1 January and 31 January 2007, indecently assaulted Z.", "zh-HK": "第二、三和五項非禮罪涉及Z。控方指申請人在2006年1月1日至12月31日及2007年1月1日至1月31日期間三次非禮Z。" } }, { "doc_id": 100, "seg_id": 10, "translation": { "en": "The Applicant was under the age of 14 at the time of offences as alleged in the 1st to 7th counts and just turned 14 at the time of offence as alleged in the 8th count.", "zh-HK": "在第一至第七項控罪所指的案發時，申請人不足14歲，而在第八項控罪所指的案發時，申請人剛滿14歲。" } }, { "doc_id": 100, "seg_id": 11, "translation": { "en": "The Applicant pleaded not guilty to all charges and stood trial before Mr Justice Li (the Judge) with a jury in the Court of the First Instance of the High Court.", "zh-HK": "申請人否認全部控罪，並在高等法院原訟法庭法官李瀚良（原審法官）會同陪審團席前受審。" } }, { "doc_id": 100, "seg_id": 12, "translation": { "en": "On 3 June 2014, the jury convicted the Applicant of all eight counts. On 30 June 2014, the Judge sentenced the Applicant to a total of 5 years’ imprisonment.", "zh-HK": "2014年6月3日，陪審團裁定申請人8項控罪罪名全部成立。2014年6月30日，原審法官判申請人入獄共5年。" } }, { "doc_id": 100, "seg_id": 13, "translation": { "en": "On 24 July 2014, the Applicant made an application for leave to appeal against conviction on all counts.", "zh-HK": "2014年7月24日，申請人提出上訴許可申請，要求獲准就全部定罪上訴。" } }, { "doc_id": 100, "seg_id": 14, "translation": { "en": "On 12 February 2015, the Applicant informed the court that he abandoned his application and consequently his application was dismissed.", "zh-HK": "2015年2月12日，申請人知會法庭放棄申請，其申請亦因而被撤銷。" } }, { "doc_id": 100, "seg_id": 15, "translation": { "en": "On 5 March 2015, the Applicant asked the court to treat his Notice of Abandonment as a nullity and to grant him leave to appeal against conviction.", "zh-HK": "2015年3月5日，申請人要求法庭視其放棄申請的通知書無效，並希望能獲准就定罪提出上訴。" } }, { "doc_id": 100, "seg_id": 16, "translation": { "en": "The Applicant stated the following in his affirmation in support of the application:", "zh-HK": "在其支持申請人的確認書，申請人有以下表述：" } }, { "doc_id": 100, "seg_id": 17, "translation": { "en": "“It was because (1) I heard people say in the Correctional Institution that if my appeal failed, the term of imprisonment would be lengthened, (2) if I cancelled my appeal after a date had been fixed, the term of imprisonment would be lengthened as I would be deemed by the court to have wasted the public funds, so I cancelled the appeal before a date had been fixed for the appeal, (3) my family mentioned to me that it was commented on the newspapers that the sentence in the case was too lenient, (4) for the reasons above, I cancelled the appeal before counsel assigned by the Legal Aid Department came to see me.”", "zh-HK": "“因為（一）在懲教所聽人說若上訴失敗我的刑期會加長、（二）若我在上訴有期後才取消[，]我的刑期會加長，因為法庭會認為我浪費公堂[帑]，顧[故]在沒有上訴期之前就取消上訴、（三）家人曾對我說報張[章][指]案件刑期過輕、（四）機以[基於]上述原因我在法援批發之大律師還沒有前來見我就取消上訴。”" } }, { "doc_id": 100, "seg_id": 18, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 100, "seg_id": 19, "translation": { "en": "In respect of the Applicant’s abandonment of appeal, Mr Cheung, counsel for the Applicant, laid emphasis on the fact that by the time the Applicant served the Notice of Appeal, he had already filed with court the grounds of appeal and written submissions, and that the Applicant filed the Notice of Abandonment of Appeal without obtaining any legal advice or knowing his chance of success on appeal. Mr Cheung also highlighted the fact that the Applicant applied to have his Notice of Abandonment of Appeal treated as a nullity extremely briefly after such notice had been filed. Mr Cheung contended that the court should therefore, as sought by the Applicant, treat his Notice of Abandonment of Appeal as a nullity and examine the conviction afresh to decide whether the convictions against him were safe.", "zh-HK": "就申請人放棄上訴一事，代表申請人的張民輝大律師強調申請人發出上訴通知時，他已向法庭提交上訴理由及書面陳詞。申請人發出放棄上訴通知書時，並未取得法律意見，亦不知其上訴成功率。他強調申請人在發出放棄上訴通知書後極短時間內已申請要求法庭視其放棄通知書無效。他力稱法庭應按申請人的要求，視其放棄上訴通知書無效，並重新審議針對他的定罪是否穩妥。" } }, { "doc_id": 100, "seg_id": 20, "translation": { "en": "Mr Cheung submitted that the Applicant was under the age of 14 at the time of offence as alleged in the 1st to 7th counts of indecent assault. He argued that the Applicant was therefore protected by a rebuttable presumption of Doli Incapax. He also stressed that a person over 10 but under 14 years of age is presumed to be not able to tell right from wrong and hence incapable of committing crime. The burden is on the prosecution to prove not only that the Applicant had committed an actus reus with the requisite mens rea, but also that he was Doli Capax when the act constituting the offence was committed, in other words, he knew right from wrong and that the particular act he committed was seriously wrong as opposed to merely naughty or mischievous.", "zh-HK": "就第一至第七項非禮罪，張大律師指出，根據控方的說法，申請人在案發時不足14歲，故受一項可被推翻的法理推定Doli Incapax (無犯罪能力)的保障。張大律師強調根據該推定，一名10歲以上但低於14歲之人士，並無是非之識別能力，故無犯罪能力。因此，控方有舉證責任，不但要證明申請人有意圖干犯有關罪行及有作出過構成罪行的行為，更要進一步證明申請人在作出構成罪行的行為時，有犯罪能力，即他能辨別是非，知悉他的行為是嚴重的不正當行為，而並非是純粹屬搗蛋性或惡作劇性的行為。" } }, { "doc_id": 100, "seg_id": 21, "translation": { "en": "Mr Cheung contended that in order to show that the Applicant knew his own act was seriously wrong, it was necessary for the prosecution to adduce substantial evidence other than that in support of actus reus, without which the prosecution would have failed to rebut the presumption of Doli Incapax in law and the Applicant would have no case to answer on the charges against him.", "zh-HK": "張大律師力稱控方必須提出支持控罪行為之外的實據，以顯示申請人知悉其行為是嚴重及不正當，否則控方未能推翻申請人無犯罪能力的法理推定，而申請人便無需就指控他的罪行答辯。" } }, { "doc_id": 100, "seg_id": 22, "translation": { "en": "Mr Cheung submitted that the prosecution did not adduce any other evidence to show that the Applicant knew his own acts of indecent assault in the 1st to 7th counts were seriously wrong, and that the Judge in his direction to the jury did not tell the jury how they should approach the evidence in that respect, if any, based on which the jury had to decide whether the Applicant knew right from wrong and hence whether he was capable of committing crime. Mr Cheung was of the view that with this being the case, the convictions of the Applicant on the 1st to 7th counts were unsafe.", "zh-HK": "張大律師認為控方並沒有提出其他證據來顯示申請人知悉他干犯第一至第七項非禮罪時所作的行為是嚴重及不正當的行為，而原審法官在引導陪審團時，亦沒有指示他們應如何處理該些證據（如有的話），以決定申請人是否有是非識別的能力，即他是否有犯罪的能力。張大律師認為在上述情況下，裁定申請人第一至第七項控罪有罪是不穩妥的裁決。" } }, { "doc_id": 100, "seg_id": 23, "translation": { "en": "In respect of the 8th count, Mr Cheung conceded that the Applicant was already over 14 years of age at the time of offence, and hence the principle of Doli Incapax did not apply. However, Mr Cheung pointed out in his written submissions that the Judge, in directing the jury, dealt with the elements of the offence of indecent assault immediately after he dealt with the elements of the offence of attempted rape, and that the judge pointed out to the jury that as Y was under 16 years of age, she could not consent to the Applicant’s indecent assault on her. Mr Cheung further submitted that the Judge’s approach would have confused the jury, having misled them into believing that Y as a child under 16 years of age could not give consent to sexual intercourse with the Applicant, and that it was unnecessary for them to take into consideration the issue of whether Y did give consent to sexual intercourse when they dealt with the offence of attempted rape.", "zh-HK": "就第八項控罪，張大律師同意案發時，申請人已超過14歲，因此，上述的Doli Incapax（無犯罪能力）的原則不適用，但在其書面陳詞，張大律師指原審法官指引陪審團時，在處理完企圖強姦罪的犯罪元素後，便立刻處理非禮罪的犯罪原素，並向陪審團指出因為Y年齡不足16歲，故不可以同意申請人向她作出的非禮行為。張大律師認為原審法官的做法會混淆陪審團，令他們誤認不足16歲的Y是不可以同意和申請人性交的，因此在處理企圖強姦罪行，無需考慮Y是否同意性交這議題。" } }, { "doc_id": 100, "seg_id": 24, "translation": { "en": "Mr Cheung also submitted that the Judge failed to direct the jury to consider whether the Applicant had mistakenly believed that Y consented to sexual intercourse with him. Mr Cheung stressed that at the material time, Y did not struggle or ask for help while Z was also present. Mr Cheung was of the view that those were pieces of evidence in support of the suggestion that the Applicant could have believed that Y consented to sexual intercourse.", "zh-HK": "張大律師亦指原審法官沒有引導陪審團考慮申請人是否有錯誤地相信Y是同意和他性交的。張大律師強調事發時Y沒有掙扎，亦沒有求助，而當時Z亦在場。張大律師認為該些證據都能支持申請人可能會相信Y是同意性交的說法。" } }, { "doc_id": 100, "seg_id": 25, "translation": { "en": "The Judge directed the jury in respect of the evidence given by X as follows:", "zh-HK": "原審法官就X所作的證供向陪審團作出以下指引：" } }, { "doc_id": 100, "seg_id": 26, "translation": { "en": "“In making his final submissions, defence counsel pointed out that according to what Ah Ching [transliteration] said, the sex abuse happened four or five times a week lasting for a year. What Mr Lam of counsel took issue with was that given the defendant’s age, whether he would have sexual capacity as such. Well, in the first place, the sex abuse alleged by Ah Ching took place during the time she was back home on summer vacation, instead of taking place continuously. In respect of the issue of sexual capacity, the offence which the defendant is now facing is actually indecent assault, which does not necessarily involve the act of sexual intercourse or relate to sexual capacity. After all, sexual capacity varies individually. We have to refrain from over-speculation; and indecent assault is not directly relevant to sexual capacity. You all understood, right? You should all remember what I am saying: elements constituting indecent assault are some acts done and those acts are indecent, and that would be indecent assault, understood?”", "zh-HK": "“辯方大律師喺結案陳詞嘅時候提出，佢話根據阿靜所講，性侵犯每星期四、五次，持續一年。咁林大律師就質疑，當時被告人會唔會因為咁嘅年紀而有咁嘅性能力呢？咁首先就阿靜所講嘅性侵犯係當佢返屋企暑假嘅時候發生嘅，唔係連續咁樣發生嘅。至於性能力嘅問題，被告人所面對嘅其實係非禮罪，未必一定要有性交嘅行為嘅，同性能力亦都未必有關係嘅。何況性能力就因人而異喇，大家切忌係太多揣測。因為非禮就同性能力冇直接關係嘅，大家明白喇嘛？大家記住我所講，非禮，構成非禮嘅因素就係做咗一啲行為，而嗰啲行為係猥褻嘅，就係㗎喇，明白喇嘛？”" } }, { "doc_id": 100, "seg_id": 27, "translation": { "en": "Mr Cheung argued that the above direction given by the Judge was unfair, because except for the 5th count, the rest of the counts all involved sexual intercourse or anal sex, the allegations of which were all necessarily relevant to the Applicant’s sexual capacity.", "zh-HK": "張大律師指原審法官的上述指引不公平，原因是除了第五項控罪外，其餘控罪都有涉及性交或肛交的指控，而該些指控和申請人的性能力必然有關。" } }, { "doc_id": 100, "seg_id": 28, "translation": { "en": "The last complaint made by Mr Cheung was relevant to the letter of complaints written by X to her parents in April 2012. Mr Cheung submitted that the Judge had mistakenly accepted the letter as evidence, as the letter was hearsay evidence, which was compiled not until half year after the offence. Mr Cheung contended that the letter was not contemporaneous and therefore insufficient to constitute a recent complaint being admissible into evidence.", "zh-HK": "張大律師的最後投訴和X在2012年4月寫給其父母的投訴信有關。張大律師認為原審法官錯誤地接納該封信為證，原因是該封信屬傳聞證供，是在事發後半年才編寫的。張大律師力稱該封信不具同步性，不足以構成新近投訴而令它可以被採納為證。" } }, { "doc_id": 100, "seg_id": 29, "translation": { "en": "Although Mr Cheung had put forward various arguments, he focused on dealing with the issue of whether the Applicant was Doli Incapax, without making reference to the rest of his grounds of appeal when he presented his submissions to the court.", "zh-HK": "雖然張大律師提出多項論據，但向法庭陳述時，他只是集中處理申請人是否有犯罪能力一事，而沒有著墨在其餘的上訴理由。" } }, { "doc_id": 100, "seg_id": 30, "translation": { "en": "The Respondent’s Position", "zh-HK": "答辯人的立場" } }, { "doc_id": 100, "seg_id": 31, "translation": { "en": "Mr Franco Kuan, Senior Public Prosecutor, for the Respondent, pointed out in his written submissions that the application made by the Applicant was one for treating his Notice of Abandonment of Appeal as a nullity. Mr Kuan emphasized that when signing the Notice of Abandonment, the Applicant must have understood the nature of the document and be aware of the consequences that must come along with the signing of the Notice of Abandonment. Therefore it was by no means necessary for the court to consider the merits of the present case before dismissing the application.", "zh-HK": "在其書面陳詞，代表答辯人的高級檢控官關百安指出，申請人提出的是把放棄上訴通知書當作無效的申請。關高級檢控官強調申請人簽署放棄通知書時，必然理解通知書的性質，亦知悉簽署放棄通知書的必然後果，因此，上訴法庭根本無需要考慮本案事件的是非曲直，便可駁回申請。" } }, { "doc_id": 100, "seg_id": 32, "translation": { "en": "Mr Kuan cited a number of cases in support of his position.", "zh-HK": "關高級檢控援引多宗案例，支持他的立場。" } }, { "doc_id": 100, "seg_id": 33, "translation": { "en": "Mr Kuan further submitted that there was sufficient evidence to show that the Applicant knew his acts were extremely wrong and serious at the time he committed the offence, and that there was also evidence to show that he had sophisticated sexual knowledge.", "zh-HK": "關高級檢控官亦認為案件有充份證據顯示申請人在犯案期間是知悉其行為是極為嚴重及不正當的，而亦有證據證明他在性方面有成熟的認知。" } }, { "doc_id": 100, "seg_id": 34, "translation": { "en": "Mr Kuan argued that on the said evidence, any reasonable jury would have come to the only conclusion that the Applicant was capable of committing crime, although he was below 14 years of age at the time of offences. Mr Kuan was of the view that the court could uphold the convictions on the 1st to 7th counts by applying the proviso.", "zh-HK": "關高級檢控官認為，根據該些證據，任何合理的陪審團都必然會得出唯一的結論，就是申請人在案發時段，雖然不足14歲，但他具犯罪能力。關高級檢控官認為法庭可使用但書來維持第一至第七項控罪的定罪。" } }, { "doc_id": 100, "seg_id": 35, "translation": { "en": "Mr Kuan also submitted that the Judge’s direction to the jury was sufficient and reasonable. He stressed that at the trial of first instance, at no time did the Applicant raise any argument that he mistakenly believed that Y consented to sexual intercourse with him, and that the Judge did not have to direct the jury on the Applicant’s position that he could have mistakenly believed that Y consented to sexual intercourse with him.", "zh-HK": "關高級檢控官認為原審法官對陪審團的指引充份和合理。他強調原審時，申請人根本沒有提出他會錯誤地相信Y同意和他性交的說法，因此原審法官無需就申請人可能錯誤地認為Y是同意和他性交的立場指引陪審團。" } }, { "doc_id": 100, "seg_id": 36, "translation": { "en": "Mr Kuan’s position is that even if the merits of the case had to be taken into consideration, none of the grounds of appeal put forward by the Applicant was sufficient to merit the quashing of the convictions against the Applicant.", "zh-HK": "關高級檢控官的立場是即使要考慮事件的是非曲直，申請人提出的上訴理據全部都不足以推翻有關的定罪裁決。" } }, { "doc_id": 100, "seg_id": 37, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 100, "seg_id": 38, "translation": { "en": "The Court of Appeal has long determined whether a convicted person, having abandoned an appeal, is entitled to have an application for leave to appeal restored.", "zh-HK": "就一名放棄上訴的被定罪人士是否有權再提出上訴許可申請，上訴法庭早有定奪。" } }, { "doc_id": 100, "seg_id": 39, "translation": { "en": "We wish to repeat the decision made in HKSAR v Leung Yu Hin (CACC 357/2009):", "zh-HK": "本庭再重申在香港特別行政區訴梁宇軒（CACC357/2009）案作出的以下裁決：" } }, { "doc_id": 100, "seg_id": 40, "translation": { "en": "“The Applicant had abandoned his application for leave to appeal, which has accordingly been dismissed by the Court of Appeal. It is the principle established by this court in various cases that only where the Applicant’s act of abandonment has been treated as a nullity that the court of appeal has jurisdiction to entertain the reopening of an application for leave to appeal. It has been stressed by the court time and again that in order to persuade the court to treat the abandonment of application as a nullity, it is necessary for the Applicant to adduce sufficient evidence to prove that his act of abandonment was not the result of an informed decision, in other words, the mind of the Applicant did not go with his act of abandonment. (See cases such as HKSAR v Lai Siu Cheung [2005] HKLRD 1, HKSAR v Law Sui Kei [2007] 3 HKLRD 114)”", "zh-HK": "“申請人放棄了上訴許可申請而上訴法庭亦因此已撤銷了該申請。根據本庭在多宗案件確立的原則，申請人放棄申請的行為需被視為無效，法庭才有司法管轄權重新處理其上訴許可申請。法庭亦屢次強調要說服法庭視放棄申請的行為無效，申請人必需提出足夠的證據證明他是在不知情的情況下作出放棄行為，即其意願和其放棄行為是不相稱的（見HKSAR v Lai Siu Cheung [2005] HKLRD 1，香港特別行政區訴羅水基[2007] 3 HKLRD 114等案）。”" } }, { "doc_id": 100, "seg_id": 41, "translation": { "en": "As stated in the Applicant’s affirmation, he abandoned the appeal for only one reason, which was for fear of an increased sentence after appeal. The Applicant however had never mentioned that he did not understand the nature of the Notice of Abandonment of Appeal or the consequence that must follow. Actually, given the fact that the Applicant deliberately decided to abandon the appeal for fear of an increased sentence, his abandonment of appeal must have been a deliberate decision made only after thorough consideration.", "zh-HK": "根據申請人在其誓章的說法，他放棄上訴的原因只有一個，就是害怕上訴申請會導致加刑，但申請人從來沒有說過他不理解放棄上訴通知書的性質及簽署該通知書的必然後果。事實上，申請人既然是害怕加刑而故意作出了放棄上訴的決定，該決定必然是經過深思熟慮後才作出的。" } }, { "doc_id": 100, "seg_id": 42, "translation": { "en": "The Applicant failed to adduce any evidence to show that his abandonment of appeal was not the result of an informed decision. He has expressed his obvious intention of abandoning the appeal.", "zh-HK": "申請人未能提出任何證據證明他是在不知情的情況下作出放棄上訴的決定。申請人表達的明顯意願是放棄上訴。" } }, { "doc_id": 100, "seg_id": 43, "translation": { "en": "We consider that there is simply no basis for the Applicant to make his application for treating the abandonment of appeal as a nullity, and that there is no need for us to consider the merits of the application for leave to appeal before we dismiss it.", "zh-HK": "本庭認為申請人沒有任何基礎要求法庭將其放棄上訴申請的通知書視為無效，本庭無需考慮上訴許可申請的是非曲直就能駁回其申請。" } }, { "doc_id": 100, "seg_id": 44, "translation": { "en": "That said, for the sake of completeness, we will briefly deal with the other grounds of appeal put forward by the Applicant.", "zh-HK": "但為了全面處理案件，本庭亦會簡單處理申請人提出的其他上訴理由。" } }, { "doc_id": 100, "seg_id": 45, "translation": { "en": "The Applicant was under 14 years of age at the time of offences in the 1st to 7th counts. Section 3 of the Juvenile Offenders Ordinance provides that it shall be conclusively presumed that no child under the age of 10 years can be guilty of an offence as they are Doli Incapax. It is also a presumption, yet rebuttable, under the common law that a child between 10 to 14 years of age is Doli Incapax. It can be rebutted only where there is positive and unequivocal evidence to show that the child involved knew his act was seriously wrong.", "zh-HK": "申請人干犯第一至第七項控罪所指的罪行時，年齡不足14歲。根據《少年犯條例》第3條，法律有一項不可推翻的推定，就是一名10歲以下兒童不具犯罪能力，故不能犯罪。根據普通法，一名10至14歲的兒童亦會被假設不具犯罪能力。但該假設是可推翻的假設，而要推翻該假設則要有正面及不含糊的證據，顯示涉案的兒童知悉其行為是嚴重不正當行為。" } }, { "doc_id": 100, "seg_id": 46, "translation": { "en": "Lord Lowry made the following comments in C v DPP [1995] 2 Cr App R 166, at 187 B-E：", "zh-HK": "在C v DPP [1995] 2 Cr App R 166 Lord Lowry 法官在判案書第187頁B-E行，有以下評論：" } }, { "doc_id": 100, "seg_id": 47, "translation": { "en": "“A long and uncontradicted line of authority makes two prepositions clear. The first is that the prosecution must prove that the child defendant did the act charged and that when doing that act he knew that it was a wrong act as district from an act of mere naughtiness or childish mischief. The criminal standard of proof applies…", "zh-HK": "“長久確立及從未被駁斥的案例作出兩項明確的主張。第一，控方必須證明被控的兒童被告干犯了指控他的行為，而作出該行為時，他是知悉該行為是錯誤的，而並非單單是純屬頑皮搗蛋或幼稚的惡作劇行為。適用的裁決標準是刑事的標準…" } }, { "doc_id": 100, "seg_id": 48, "translation": { "en": "The second clearly established proposition is that evidence to prove the defendant’s guilty knowledge, as defined above, must not be mere proof of the doing of the act charged, however horrifying or obviously wrong that act may be.”", "zh-HK": "第二項確立的主張是，要證明如上文所指被告對犯罪行為的認知，不能單靠證實控罪所指的行為，不論該些行為是如何令人震驚或是如何明顯地是錯誤的。”（非官方翻譯）" } }, { "doc_id": 100, "seg_id": 49, "translation": { "en": "Although evidence to prove a child defendant’s knowledge of his act being wrong must not be mere proof of the doing of the act charged, in considering the question of whether the child defendant has the guilty knowledge, the surrounding circumstances of the offence, the child defendant’s behaviour and demeanour both before and after committing the act are evidence all relevant to determining whether he was capable of committing crime.", "zh-HK": "雖然控方不能單憑控罪所指的行為來證明一名兒童罪犯知悉其行為是錯誤的，但考慮他是否具備有關認知時，環繞有關罪行的證據及該名兒童罪犯在干犯罪行前後的行為及態度都是有關的證據，以決定他是否具犯罪能力。" } }, { "doc_id": 100, "seg_id": 50, "translation": { "en": "In determining whether a child defendant has the guilty knowledge and in proving his awareness of the criminal acts he committed being seriously wrong, evidence such as the following would be relevant: a child defendant took a victim to a remote place where intervention by others was unlikely and subjected her to assault; the child defendant threatened the victim before the assault and used violence against her in the course of it, which brought obvious distress to the victim; a child defendant uttered threats to a victim after assaulting her in order to prevent disclosure; repetition of the same offence; the sexual sophistication the child defendant demonstrated and the sex education he had received at the time of committing the offence (See cases such as A v DPP [1997] 1 Cr App R 27, L and B v DPP [1998] 2 Cr App R 69, and R v ML [2013] NICA 23).", "zh-HK": "一名兒童罪犯將受害人帶到偏遠及不易被干擾的地方侵犯受害人；在侵犯受害人前威嚇她及侵犯她時施以暴力，明顯令她受苦楚；在侵犯受害人後恐嚇受害人避免事件曝光；多次干犯同樣罪行；犯案時，兒童罪犯表現的性成熟程度及其受過的性教育等等都是有關證據，以決定該名兒童罪犯是否具備有關認知及證明他知悉其犯罪行為是嚴重的不當行為。（見A v DPP [1997] 1 Cr App R 27、L and B v DPP [1998] 2 Cr App R 69、R v ML [2013] NICA 23等案）" } }, { "doc_id": 100, "seg_id": 51, "translation": { "en": "X, Y and Z gave evidence that when committing assault on them, the Applicant would usually choose to do it in his own room and when the parents were not at home or already at sleep. The Applicant sometimes would lock the door and when someone knocked on the door, the Applicant would immediately stop the acts. Obviously, the Applicant was afraid that his acts of offence would be detected.", "zh-HK": "根據X、Y、Z的證供，申請人侵犯她們時，一般會選擇在其房間及父母不在家或已入睡等時間進行。申請人有時會鎖上門，而當有人敲門或出現時，申請人會立刻停止其犯罪行為。申請人明顯是害怕被人發現其罪行。" } }, { "doc_id": 100, "seg_id": 52, "translation": { "en": "The Applicant threatened the victim before and after the offence so that they would submit to him and that his acts would not be disclosed. When assaulting the victims, the Applicant also used violence against them, for which the Applicant had been punished by his father. Besides, the victims showed fear and distress on numerous occasions where they were being assaulted.", "zh-HK": "申請人在犯案前後都會威嚇受害人，令她們就範及避免其罪行曝光。在侵犯受害人時，申請人亦會對她們施以暴力，而申請人亦曾因此而受父親責罰。受害人被侵犯期間亦多次表現痛苦及恐懼的神情。" } }, { "doc_id": 100, "seg_id": 53, "translation": { "en": "Even it was the first time that the Applicant had assaulted X (the 1st count), the Applicant had demonstrated that he was quite sexually sophisticated. He made X and Z watch a pornographic film in his room before instructing Z to take off her clothes and inserting into Z’s vagina a pencil and his finger respectively. When Z said it was painful, the Applicant tried to insert his penis into her vagina. Subsequently, he made X enter the bathroom to perform oral sex on him. After the oral sex, the Applicant told X to rinse her mouth. The Applicant made X and Z enter his room again, where he made X take off her clothes and he lied on top of X, thrusting his penis towards her vagina. When X said it was painful and pushed the Applicant away, he pinned down both X’s arms and told her not to make any noise.", "zh-HK": "即使申請人首次侵犯X（即第一項控罪），申請人的表現已顯示他是一名性成熟程度甚高的人。他要X和Z入房觀看成人電影，看完之後，指示Z脫去衣服，而且先後以鉛筆、手指插Z的陰道。當Z叫痛時，申請人試圖用陽具去插她的陰道。其後，他要X入洗手間替他口交。口交完後，申請人叫X漱口。申請人再要X和Z入房及要X脫去衣服。他隨後壓在X身上，用陽具插她的陰道。當X說痛並推開申請人時，他“”着X雙手，叫她不要嘈吵。" } }, { "doc_id": 100, "seg_id": 54, "translation": { "en": "The verdict returned by the jury obviously showed that they had accepted the allegations made against the Applicant by X, Y and Z; and according to their evidence, the Applicant was capable of committing crime during the material time period.", "zh-HK": "根據陪審團的裁決，他們明顯是接納了X、Y和Z對申請人的指控；而根據她們的證供，申請人在有關時段是具犯罪能力的。" } }, { "doc_id": 100, "seg_id": 55, "translation": { "en": "We agree with Mr Kuan on the respondent’s position. We are of the view that on the facts of the case, any reasonable jury properly directed must have found the Applicant to have known what he was doing at the time of offence to be seriously wrong, and thus finding him to be capable of committing crime. Although the Judge should have directed the jury in respect of the issue of whether the Applicant was Doli Incapax, his failure to do so does not constitute the basis for quashing the convictions in the circumstances of the present case and we find the convictions safe and satisfactory.", "zh-HK": "本庭同意關高級檢控官的立場。本庭認為以本案的案情而言，任何合理的陪審團在恰當的指引下，必會裁定申請人在案發時知悉他的行為是嚴重的不正當行為，並因此會認定他具犯罪能力。雖然原審法官應該就申請人是否具有犯罪能力這議題向陪審團作出指引，但以本案的背景而言，原審法官沒有這樣做不構成推翻有關定罪的理據，本庭認為有關定罪是穩妥的。" } }, { "doc_id": 100, "seg_id": 56, "translation": { "en": "The present case involved multiple counts of indecent assault and one count of attempted rape. It certainly followed that the Judge should have directed the jury properly in respect of all various counts.", "zh-HK": "本案涉及多項非禮罪和一項企圖強姦罪。原審法官當然要就該些不同控罪向陪審團作出適當指引。" } }, { "doc_id": 100, "seg_id": 57, "translation": { "en": "In directing the jury in respect of the charge of attempted rape, the Judge made it clear to the jury that the charge involved Y only and that Y did not consent to sexual intercourse with the Applicant. The Judge emphasized that the jury must consider whether Y consented to sexual intercourse with the Applicant at the time of offence, and that if they did not accept Y’s evidence or they had any doubts in her evidence, they had to find the Applicant not guilty. The main issue in that count was whether Y’s version of events was reliable.", "zh-HK": "當原審法官就企圖強姦罪指引陪審團時，有明確向他們表示該項控罪只涉及Y，而Y是不同意和申請人性交的。原審法官強調陪審團必須考慮案發時Y是否同意和申請人性交，及如他們不接納Y的證供或對她的證供有懷疑時，他們要裁定申請人無罪。該項控罪的最主要爭議是Y的說法是否可信。" } }, { "doc_id": 100, "seg_id": 58, "translation": { "en": "The Judge then turned to direct the jury in respect of the seven counts of indecent assault. He first indicated to them that the allegations involved indecent assault on the three of them, ie X,Y, Z. The Judge put emphasis on the fact that “the three victims were all under 16 years of age”, and that “in law, a person under 16 cannot consent to assault in any form...”.", "zh-HK": "原審法官隨後就七項非禮控罪引導陪審團，他先向他們表示指控涉及和X、Y、Z三人有關的非禮罪。原審法官強調“三個事主係細過16歲”，而“法律上一個年歲細過16歲嘅人不可以同意任何侵犯行為…”。" } }, { "doc_id": 100, "seg_id": 59, "translation": { "en": "We do not find that the Judge’s approach would have confused the jury, causing them to mistakenly believe that they were not required to consider whether Y consented to sexual intercourse with the Applicant in deciding whether the Applicant had committed attempted rape in the 8th count.", "zh-HK": "原審法官的處理方法不會混淆陪審團，令他們誤認在考慮申請人是否有干犯第八項企圖強姦罪時，他們無需考慮Y是否同意和申請人性交一事。" } }, { "doc_id": 100, "seg_id": 60, "translation": { "en": "The Applicant denied attempting intercourse with Y, saying Y was lying and framing him. In the above circumstances, the issue of whether the Applicant would have mistakenly believed that Y consented to sexual intercourse with him did not even exist. There was also no evidence to show that the Applicant had the basis to base his defence on such argument.", "zh-HK": "原審時，申請人否認有企圖和Y性交，他指Y是說謊誣告他。在上述情況下，申請人是否會誤信Y同意和他性交這議題根本沒有出現，亦沒有證據顯示申請人有基礎以該論據作為答辯理由。" } }, { "doc_id": 100, "seg_id": 61, "translation": { "en": "In our judgment, the Judge’s approach of not directing the jury on the issue was proper and correct.", "zh-HK": "本庭認為原審法官沒有就該議題引導陪審團是恰當和正確的處理方法。" } }, { "doc_id": 100, "seg_id": 62, "translation": { "en": "Mr Cheung made some other complaints in his written submissions, including one against the Judge’s comments on the Applicant’s sexual capacity and one concerning X’s letter of complaints to her parents. We are of the view that, given the circumstances of the present case, the complaints are all trivial and irrelevant to the question of whether the conviction was safe and satisfactory.", "zh-HK": "張大律師在其書面陳詞有作出其他投訴，包括原審法官就申請人性能力的評語及X寫給父母的投訴信。本庭認為以本案的背景而言，該些投訴都是微不足道，更和有關定罪的穩妥性無關。" } }, { "doc_id": 100, "seg_id": 63, "translation": { "en": "Even if we treat the Notice of Abandonment of Appeal as a nullity and take into account the merits of the case, we would have arrived at the decision that the convictions against the Applicant are all safe and satisfactory. We would grant him leave to appeal against the convictions on the 1st to 7th counts, but would apply the proviso to uphold the same convictions. In respect of the conviction on the 8th count, the application was dismissed and conviction upheld.", "zh-HK": "即使本庭將申請人放棄上訴申請的通知書視為無效，並考慮事件的是非曲直，本庭亦會認定針對申請人的全部定罪都屬穩妥的。本庭會批准他就第一至第七項控罪的定罪提出上訴，但會使用但書，維持定罪裁決。就第八項控罪的定罪，本庭會駁回他的申請，維持原判。" } }, { "doc_id": 100, "seg_id": 64, "translation": { "en": "However, the Applicant failed to prove that his abandonment of appeal was not an informed decision and we are satisfied that the mind of the Applicant went with his act of abandonment. On this basis, the application was dismissed and convictions upheld.", "zh-HK": "但由於申請人未能證明他是在不知情下作出放棄上訴的決定，而本庭信服他放棄上訴的行為是和他的意願相稱。本庭以該基礎駁回申請人的申請，並維持針對他的有罪裁決。" } }, { "doc_id": 100, "seg_id": 65, "translation": { "en": "由律政司高級檢控官關百安代表。\tMr Franco Kuan, Senior Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：" } }, { "doc_id": 100, "seg_id": 66, "translation": { "en": "由法律援助署委派大律師張民輝代表。\tMr Jeremy Cheung, assigned by the Legal Aid Department, for the Applicant.", "zh-HK": "申請人：" } }, { "doc_id": 101, "seg_id": 1, "translation": { "en": "Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒下上訴法庭判案書：" } }, { "doc_id": 101, "seg_id": 2, "translation": { "en": "The offences of trafficking in dangerous drugs", "zh-HK": "販運危險藥物罪" } }, { "doc_id": 101, "seg_id": 3, "translation": { "en": "The applicant was charged with two counts of trafficking in dangerous drugs, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap.134).", "zh-HK": "申請人被控兩項販運危險藥物罪，違反香港法例第 134 章《危險藥物條例》第 4(1)(a) 及 (3) 條。" } }, { "doc_id": 101, "seg_id": 4, "translation": { "en": "The particulars of the first charge were that, on 1 June 1999, the applicant, on board a private car bearing registration number EG 1447 and parked at the junction of Granville Road and Chatham Road South, Kowloon, Hong Kong, unlawfully trafficked in one block of dangerous drugs, namely approximately 348 grams of a mixture containing approximately 195 grams of heroin hydrochloride.", "zh-HK": "第一項的罪行詳情指申請人於 1999 年 6 月 1 日在一輛停泊於香港九龍加連威老道與漆咸道南交界車牌登記號碼為 EG 1447 的私家車上非法販運 1 磚危險藥物，即內含約 195 克海洛英鹽酸鹽的約 348 克混合劑。" } }, { "doc_id": 101, "seg_id": 5, "translation": { "en": "The particulars of the second charge were that the applicant, at the same time and on board the same private car as particularised in the first charge, unlawfully trafficked in 4 blocks of dangerous drugs (not including the block referred to in the first charge), namely approximately 1,392 grams of a mixture containing approximately 780 grams of heroin hydrochloride.", "zh-HK": "第二項控罪的詳情指申請人在同一時間及在該輛私家車上非法販運 4 磚危險藥物（不包括第一項罪名所述的 1 磚），即內含約 780 克海洛英鹽酸鹽的約 1,392 克混合劑。" } }, { "doc_id": 101, "seg_id": 6, "translation": { "en": "The applicant pleaded guilty to the first charge but not guilty to the second charge. He was convicted after trial of the second charge. He was sentenced to 7 years’ imprisonment for the first charge and 24 years’ imprisonment for the second charge, with both sentences to run concurrently. The applicant now applies for leave to appeal against conviction on the second charge.", "zh-HK": "申請人承認第一項控罪，但否認第二項控罪。經審訊後被定罪。第一項控罪被判監禁 7 年，第二項控罪被判監禁 24 年，兩項刑期同期執行。申請人現對第二項控罪的定罪不服，提出上訴許可申請。" } }, { "doc_id": 101, "seg_id": 7, "translation": { "en": "The agreed facts", "zh-HK": "雙方承認的事實" } }, { "doc_id": 101, "seg_id": 8, "translation": { "en": "The facts as agreed by the prosecution and the defence are as follows:", "zh-HK": "這是控辯雙方承認的事實：" } }, { "doc_id": 101, "seg_id": 9, "translation": { "en": "On the afternoon of 1 June 1999, a team of police officers attached to the Narcotics Bureau of the Hong Kong Police Force acted on instructions and carried out anti-drug operation in Tsimshatsui area. At about 4.48 pm, police officers of the team intercepted a private car with registration number EG 1447 at the junction of Granville Road and Chatham Road South. A total of 5 persons were on board the car, namely the applicant, three males Cheung Shek Wing (transliteration), Li Man Chi (transliteration) and Chow Chi Kwong (transliteration), and a male Lau Siu Wan (transliteration) who was the driver of the car. Detective Constable 45165 walked up to the outside of the front passenger compartment and revealed his identity to Cheung Shek Wing who was sitting there. Detective Constable 45165 told Cheung Shek Wing that he suspected that Cheung Shek Wing had in his possession dangerous drugs (“drugs”) and that he wanted to search him. Detective Constable 45165 then asked Cheung Shek Wing to alight from the car. When Cheung Shek Wing was leaving the compartment as told, Detective Constable 45165 saw a transparent plastic bag on the front passenger seat of the car. The plastic bag contained a newspaper, two cigarette packets and one block of suspected heroin. Detective Constable 45165 then searched Cheung Shek Wing but did not find any drug on his person. Detective Constable 45165 then arrested Cheung Shek Wing for the offence of drug trafficking.", "zh-HK": "1999 年 6 月 1 日下午，一隊隸屬於香港警務處毒品調查科的警務人員奉命在尖沙咀區執行掃毒行動。同日下午 4 時 48 分左右，毒品調查科的警務人員在加連威老道與漆咸道南交界截停一輛車牌號碼為 EG 1447 的私家車。該輛車上共有 5 人，他們是申請人及三名男子張錫榮、李文志和周志光。該輛車由一名男子劉小雲駕駛。偵緝警員 45165 走到該輛車的前座乘客車廂，並向坐在該處的張錫榮表露身分。警員 45165 向張錫榮表示，懷疑他藏有危險藥物（“毒品”），想對他進行搜身。警員 45165 指示張錫榮下車，而當張錫榮正按指示而行出車廂之際，警員 45165 看見於該輛車的前座乘客座位放有一個透明膠袋。該個膠袋內載有一份報紙和兩個煙盒，另又載有 1 磚懷疑海洛英毒品。警員 45165 向張錫榮搜身，但在他身上並沒有搜出任何毒品。警員 45165 以販運毒品的罪名拘捕張錫榮。" } }, { "doc_id": 101, "seg_id": 10, "translation": { "en": "Detective Constable 48050 was also one of the police officers instructed to take part in the operation. He walked up to the outside of the compartment of the car and revealed his identity. After Chow Chi Kwong alighted from the left side of the rear seat, Detective Constable 48050 intercepted him and said that he had to search him as he was suspected to have drugs in his possession. Detective 48050 proceeded to search Chow Chi Kwong and found from the inside of the front waistband of his trousers one block of suspected heroin wrapped in a white and green coloured plastic bag. Detective Constable 48050 then arrested Chow Chi Kwong for the offence of drug trafficking.", "zh-HK": "偵緝警員 48050 也是奉命在行動中執行任務的警務人員。偵緝警員 48050 走到該輛車的車廂外表露身分。周志光從後車廂的左邊座位下車後，偵緝警員 48050 把他截停，並向他表示因為懷疑他藏有毒品，所以要向他搜身。結果偵緝警員 48050 向周志光搜身，在他前面褲頭位內，發現 1 磚以白錄色膠袋包裹的懷疑海洛英毒品。偵緝警員 48050 以販運毒品的罪名拘捕周志光。" } }, { "doc_id": 101, "seg_id": 11, "translation": { "en": "At that time, Li Man Chi was sitting in the middle of the rear passenger seat. After Detective Constable 3118 (PW3) ordered him to alight from the car, PW3 found, at the seat which he had occupied and at the place between where Li Man Chi’s two feet had been, one block of suspected heroin wrapped in adhesive tapes. No drug was found on Li Man Chi’s person.", "zh-HK": "另一名乘客李文志當時坐在後座的中間位置。偵緝警員 3118 (控方第三證人)指令他下車後，在他所坐的座位雙足之間的位置上發現 1 磚以膠紙包裝的懷疑海洛英毒品，在李文志身上並沒有搜出毒品。" } }, { "doc_id": 101, "seg_id": 12, "translation": { "en": "Detective Constable 47002 (PW1) was also instructed to take part in the operation. He walked up to the outside of the rear compartment of the car, opened the car door on the right side and revealed his identity to the applicant, who was sitting behind the driver. After that, Detective Constable 48479 (PW2) seized from inside the rear compartment a pink paper bag which contained a purple plastic bag. The purple plastic bag contained a total of 5 blocks of suspected heroin. These 5 blocks were subsequently examined and certified to contain heroin hydrochloride. The weight of the heroin hydrochloride contained in each of the 5 blocks varied from 191 grams to 198 grams. A fingerprint consistent with that of the left index finger of the applicant was found on the surface of the purple plastic bag.", "zh-HK": "偵緝警員 47002 （控方第一證人）亦奉命在行動中執行任務。他走到該輛車的後車廂，並打開右邊的車門向坐在司機後面的申請人林日强表露身分。其後偵緝警員 48479 （控方第二證人）在後車廂內檢獲一個粉紅色的紙袋，內載有一個紫色膠袋，而該紫色膠袋內載有合共 5 磚懷疑海洛英毒品。該 5 磚懷疑海洛英毒品經化驗後證實含有海洛英鹽酸鹽，該 5 磚毒品所含的海洛英鹽酸鹽的重量由 191 克至 198 克不等。在上述紫色膠袋的表面上發現一個屬於申請人的左手食指指模。" } }, { "doc_id": 101, "seg_id": 13, "translation": { "en": "The police took samples from the applicant’s face, hands and hair for analysis. The police also seized and analysed the pair of sandals worn by the applicant at the scene of the crime. The samples and pair of sandals were subsequently certified to carry traces of heroin. It was also certified that there were traces of heroin on the face, hands and hair of another defendant Li Man Chi, who had been sitting in the middle of the rear seat of the car.", "zh-HK": "警方在申請人的面部、雙手及頭髮檢取化驗樣本。警方亦檢走及化驗申請人在案發現場所穿的一對涼鞋。其後，上述所檢取的三種化驗樣本及涼鞋證實分別含有微量海洛英。另外，坐在車輛後排中間位置的另一名被告人李文志的面部、雙手及頭髮亦證實含有微量海洛英。" } }, { "doc_id": 101, "seg_id": 14, "translation": { "en": "At trial, PW1 testified that, when he opened the rear car door, he saw a pink paper bag behind the applicant’s legs, and the bag was placed between the applicant’s calves and the seat.", "zh-HK": "第一證人在法庭作供時稱當他開啟了後排的車門時看見申請人雙腿後面有一個粉紅色紙袋，該袋是放在申請人後腿及座位的中間。" } }, { "doc_id": 101, "seg_id": 15, "translation": { "en": "Cheung Shek Wing, Chow Chi Kwong and Li Man Chi were each charged with the offence of trafficking in one block of drugs, and each of them pleaded guilty to the charge against him.", "zh-HK": "張錫榮、周志光及李文志分別被控販運 1 磚危險藥品，他們三人都承認控罪。" } }, { "doc_id": 101, "seg_id": 16, "translation": { "en": "The applicant’s defence", "zh-HK": "申請人的自辯" } }, { "doc_id": 101, "seg_id": 17, "translation": { "en": "The applicant gave evidence in his defence. He was a drug addict who had to spend a few hundred dollars on drugs every day. He knew another drug addict who introduced him to someone called “Ah Hong”, for whom he delivered drugs. On the day of the offence, the applicant received a telephone call from Ah Hong who told him to fetch a piece of number 4 heroin, and for this he would be given 1/2 ounce of drugs, with a market value of about $3,000, as a reward. The applicant was instructed to stand at the doorway of a sauna, holding a pack of lemon tea for ease of identification, and then someone would contact him. At 2 pm on that day, the applicant waited at the appointed place. Later, a private car bearing registration number EG 1447 arrived, and the driver of the car asked the applicant to board the car. At that time there were already two passengers inside the car, occupying the front seat and the rear seat respectively. The applicant boarded the car and occupied the right side of the rear seat behind the driver. The driver drove around and then picked up the last passenger, who took the left side of the rear seat. The driver then continued to drive around. The applicant began to feel a bit tired, and when he was in a trancelike state, the car had neared the scene of the offence. The applicant heard the driver ask the passenger at the front seat to open the car window and also heard the sound of objects being thrown into the car. After that, the passengers inside the car followed the instruction of the driver, who told them each to take out one item from the paper bag thrown into the car. When the paper bag was passed to the applicant, he also put his hand into the bag in an attempt to take out one block of heroin, but before he could get that block of heroin, the car was intercepted by the police, and the paper bag fell and landed by the side of the applicant’s feet and near the middle of the rear seat.", "zh-HK": "申請人作供自辯。他是一名吸毒者，每天需要花費數百元吸毒。他認識的另外一名吸毒者介紹他替一位名叫“阿康”的人攜帶毒品。事發當日，申請人收到阿康的電話指示他去取一塊 4 號海洛英，之後會獲得到半安士,市值大約 $3,000的毒品作為報酬。按指示，申請人要站在一所浴室門口，並手執一包紙包檸檬茶為記認，接着便會有人跟他聯絡。當日下午二時，申請人在指定的地點等候，一輛車牌 EG 1447 的私家車隨後駛至，車上司機叫申請人上車。當時車上已載有兩名乘客，一名坐在車的前排，而另一名則坐在後排。申請人上車後坐在司機位後面的位置。司機開車四處兜圈，後來接載了最後一名乘客上車，該乘客坐在後排座位的左邊，司機繼續開車周圍兜圈。申請人開始有點倦意，在他半睡半醒的模糊狀態的時候，車輛已到達案發地點附近，申請人聽到司機叫前排乘客打開玻璃窗，他也聽到好像有些東西被拋進車內的聲音。接着，車上各人聽從司機的吩咐各自從拋進車內的紙袋內拿出各人一份的物品。當紙袋傳到申請人手上，他亦伸手入袋想取出 1 磚海洛英，在他還未取得該磚海洛英時，車就被警察截停，紙袋跌在申請人的腳邊，紙袋的位置就在申請人腳邊靠中間座位的地方。" } }, { "doc_id": 101, "seg_id": 18, "translation": { "en": "The applicant said that at the time he had no idea how many blocks of heroin were there inside the paper bag or whether there was any other heroin. At that time he only wanted to get the one block of heroin he needed and the other things had nothing to do with him, and the items inside the paper bag would be dealt with by the driver himself. The applicant said that, had the car not been intercepted by the police, the driver would have driven him to a taxi stand after he took the block of heroin, and then he would have followed Ah Hong’s telephone instruction and delivered the block of heroin to the specified destination.", "zh-HK": "申請人指他當時不知道紙袋內有多少磚海洛英及有沒有其他的海洛英。他當時的想法是只想取走自己需要的那 1 磚海洛英，其他事情與他無關，紙袋內的物品會由司機自己處理。他說假若車輛沒有被警察截停，他在取得那磚海洛英後，司機就會載他到一個的士站，然後他會根據阿康的電話指示運送該磚海洛英到目的地。" } }, { "doc_id": 101, "seg_id": 19, "translation": { "en": "Defence witness Chow Chi Kwong", "zh-HK": "辯方證人周志光" } }, { "doc_id": 101, "seg_id": 20, "translation": { "en": "Defence witness Chow Chi Kwong said he was also instructed to fetch one block of heroin, and that when he boarded the car at the appointed place, three passengers including the applicant were already inside the car. Chow Chi Kwong said a person outside the car handed the paper bag into the car as the driver told him to do so. After that, the driver told the passenger at the front seat to take out one block of substance wrapped in newspaper and then pass the paper bag to the rear seat. The passenger in the middle of the rear seat took the paper bag, followed the driver’s instruction and took out one block from the bag, and gave it to Chow Chi Kwong. That passenger also took one block for himself, and then followed the driver’s instruction and passed the paper bag to the applicant. At that time the driver did not instruct the applicant to take out one block of drugs from the bag. About 10 seconds after the applicant received the paper bag, the car was intercepted by the police.", "zh-HK": "辯方證人周志光指他亦是被指示去提取 1 磚海洛英，當他在約定的地點登上車輛時，包括申請人的 3 名乘客已在車上。周志光指一名在車外的人士將紙袋遞入車內，當時司機叫他將紙袋遞入車內。之後，司機叫前座的乘客取出 1 磚被報紙包裹着的物體及將紙袋傳往後座。後座中間的乘客接過該袋後，就聽從司機的指示從袋內取出 1 磚給周志光，中間的乘客接着亦拿了 1 磚，然後聽從司機的指示將紙袋交給申請人。當時司機並沒有指示申請人從紙袋內取出 1 磚毒品。申請人接過紙袋後約 10 秒時間，車輛便被警察截停。" } }, { "doc_id": 101, "seg_id": 21, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 101, "seg_id": 22, "translation": { "en": "The applicant raises a number of grounds of appeal. We do not consider it necessary to deal with them individually, as they are not valid grounds of appeal. Those grounds of appeal include: (1) The trial judge erred by rejecting the defendant’s submission of no case to answer, and also by leaving the prosecution case on the second charge to the jury when no reasonable jury properly directed would have convicted the defendant of that charge. This ground concerns PW1’s evidence that he saw the position of the paper bag. (2) The trial judge failed to warn the jury that it was unsafe for them to rely on PW1’s evidence. (3) On the authorities of R v. Kevin Brown (1984) 9 Cr App R 115 and HKSAR v. Tse Koon Kit CACC 388/97, the trial judge should have directed the jury on the applicant’s mode of committing the two different offences. (4) The trial judge should have directed the jury on the role played by each of the passengers and the driver of the car. (5) The trial judge failed to direct the jury sufficiently on the legal principles concerning possession of dangerous drugs.", "zh-HK": "申請人提出多項上訴理由，本庭認為不需要逐點處理，它們都不是合理的上訴理由。這些上訴理由包括：（1）原審法官錯誤地拒絕接納辯方關於無須答辯的陳詞及容許陪審團繼續考慮控方的第二項控罪，而該控罪是陪審團在合理情況下及在適當的引導下不會判定被告人有罪的。這上訴理由涉及第一控方證人指他看見紙袋位置的證供。（2）原審法官沒有警告陪審團，他們依賴第一控方證人的證供是危險的。（3） 法官應該根據 R. v. Kevin Brown [1984] 9 CR APP R 115 及 HKSAR v. Tse Koon Kit CACC 388/97，就有關申請人干犯那兩種不同控罪的方式向陪審團作出引導。（4） 法官應該向陪審團引導車上各乘客及司機的角色。（5） 法官沒有充分引導關於管有毒品的法律原則。" } }, { "doc_id": 101, "seg_id": 23, "translation": { "en": "Problems arising from the splitting of the charge", "zh-HK": "分拆控罪引發的問題" } }, { "doc_id": 101, "seg_id": 24, "translation": { "en": "In our view, the summing-up given by the trial judge to the jury was fair and balanced, providing detailed directions in respect of the material evidence and issues that touched on the strengths and weaknesses of each party’s case. However, since the prosecution and the defence had split the charge into two charges and the first charge was handled in such a way that the trial judge was unable to deal with the grounds of defence comprehensively when he directed the jury, the summing-up was rendered seriously defective.", "zh-HK": "本庭認為法官所作的引導陪審團陳詞書是持平的,他對重要的證供及涉及雙方利害的爭議點作出詳細引導。但由於控辯雙方將控罪分拆成兩項控罪和處理第一項控罪的方法令到法官沒法及沒有全面地將申請人的抗辯理由向陪審團提出，因而令引導陳詞書存在嚴重的缺陷。" } }, { "doc_id": 101, "seg_id": 25, "translation": { "en": "To begin with, the applicant was charged with one single count of trafficking in 5 blocks of drugs. He indicated that he would plead guilty to trafficking in one block of drugs. Having discussed the matter with the defence, the prosecution split the charge into two, that is the first and second charges with which we are now concerned. It is common ground that both charges involved the 5 blocks of drugs inside the paper bag. However, the one block of drugs stated in the first charge did not refer to any particular block of drugs inside the paper bag; the 195 grams or so of heroin hydrochloride as stated in the particulars of offence was in fact the average figure taken of the quantities of heroin constituents in the 5 blocks of drugs inside the paper bag. Further, the 780 grams or so of heroin hydrochloride mentioned in the second charge was in fact a figure arrived at by multiplying the average quantity of heroin constituents in the 5 blocks of drugs by 4 (195 grams x 4 = 780 grams). These two points were not mentioned at all in the submissions by both the prosecution and the defence and in the trial judge’s directions to jury. In ordinary cases, the nature and quantity of drugs involved only affect the length of the sentence to be imposed. In the present case, however, the splitting of the original charge into two and the ways in which the two charges were dealt with had a material effect on the applicant’s defence in respect of the second charge.", "zh-HK": "申請人原本是被控一項販運 5 磚毒品的控罪，由於他提出承認販運 1 磚毒品，控辯雙方商議後，控方將控罪一分為二，變成現時的第一及第二項控罪。雙方沒有爭議的是這兩項控罪都是涉及紙袋內的 5 磚毒品，但第一項控罪所述的 1 磚毒品並非指紙袋內某 1 磚毒品；罪行詳情所指的約 195 克海洛英鹽酸鹽，實是涉案紙袋內 5 磚毒品所含海洛英成分的平均數。而第二項控罪所提及的約 780 克海洛英鹽酸鹽，實是將 5 磚毒品海洛英成分的平均數乘以 4 （195克 X 4 = 780 克）而得出。這兩點在控辯雙方的陳詞及法官引導陪審團時完全沒有提及。在一般案件中，控罪所涉的毒品和重量只影響判刑的長短，但在本案中，將原控罪分拆成兩項控罪和兩項控罪的處理手法對申請人就第二項控罪的抗辯起着關鍵性的影響。" } }, { "doc_id": 101, "seg_id": 26, "translation": { "en": "Definition of drug trafficking", "zh-HK": "販運毒品的定義" } }, { "doc_id": 101, "seg_id": 27, "translation": { "en": "Trafficking in dangerous drugs is defined in the Dangerous Drugs Ordinance as:", "zh-HK": "販運危險藥物在《危險藥物條例》的定義是：" } }, { "doc_id": 101, "seg_id": 28, "translation": { "en": "“‘Trafficking’, in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking …”", "zh-HK": "「就危險藥物而言，『販運』包括進口入香港、從香港出口、獲取、供應或以其他形式經營或處理危險藥物，或管有危險藥物作販運。」" } }, { "doc_id": 101, "seg_id": 29, "translation": { "en": "Broadly speaking, a defendant can commit the offence of drug trafficking in two different ways: by dealing in or with the drug, or by possessing the drug for the purpose of unlawful trafficking. For the purpose of the present case, the applicant could have committed the first and second charges in the above two ways.", "zh-HK": "大體而言，一名被告可以透過兩種不同方式干犯販運毒品的罪名：其一是經營或處理毒品，其二是管有毒品作非法販運用途。就本案而言，申請人也是可以經上述兩種方式干犯第一、第二項控罪。" } }, { "doc_id": 101, "seg_id": 30, "translation": { "en": "Possession of drugs", "zh-HK": "管有毒品" } }, { "doc_id": 101, "seg_id": 31, "translation": { "en": "Plainly, in the present case, the prosecution instituted proceedings against the applicant on the basis that he possessed all the 5 blocks of drugs inside the paper bag in question for the purpose of unlawful trafficking. Mr. Wong Po Wing, counsel for the applicant, submitted that the applicant pleaded guilty to the first charge because he did have the actus reus and mens rea of drug trafficking, meaning that he boarded the car in question pursuant to the instructions of Ah Hong who had told him to fetch one block of drugs. In other words, it was not on the basis that he possessed the one block of drugs for the purpose of unlawful trafficking that he committed and pleaded guilty to the first charge. In fact, the applicant completely denied that he was in possession of the paper bag that contained the 5 blocks of drugs. Accordingly, the factual and legal bases on which the applicant pleaded guilty to the first charge were entirely different from the basis on which the proceedings were instituted.", "zh-HK": "明顯在本案中，控方是以申請人管有涉案紙袋內共 5 磚毒品作非法販運用途提出檢控。據王寶榮大律師上訴時的陳詞，申請人承認第一項控罪是因為他確有販運毒品的行為和意圖，意思是說申請人是為履行阿康囑他提取 1 磚毒品的指令而登上涉案車輛。換而言之，他並不是在管有 1 磚毒品作非法販運用途的基礎上干犯和承認第一項控罪。事實上，申請人完全否認管有載着 5 磚毒品的紙袋。因此，申請人承認第一項控罪的事實和法理基礎與控方提出檢控的基礎是全然不同。" } }, { "doc_id": 101, "seg_id": 32, "translation": { "en": "Unfortunately, throughout the trial the defence had never made clear to the jury of the basis on which the applicant pleaded guilty to the first charge. And neither had the prosecution nor the defence explained to the jury how the quantities of the drugs as stated in the two charges were arrived at. Neither party had submitted to the court a copy of the agreed facts in respect of the first charge. It was only through counsel’s submission that we realised that the applicant pleaded guilty to the first charge not because he possessed the drugs for the purpose of unlawful trafficking.", "zh-HK": "不幸地，在審訊時辯方自始至終都沒有向陪審團說明申請人是基於甚麼因素承認第一項控罪。控辯雙方也沒有向陪審團交代兩項控罪中所述的毒品和重量是從何得來。控辯雙方同時亦沒有就第一項控罪提交一份雙方同意的案情。申請人非因管有毒品作非法販運用途而承認第一項控罪一點，本庭亦是在大律師陳詞時方得悉。" } }, { "doc_id": 101, "seg_id": 33, "translation": { "en": "Throughout the trial, the prosecution case, the defence case and the trial judge’s directions to jury all focused on whether the applicant possessed the 4 blocks of drugs inside the paper bag for the purpose of unlawful trafficking. The trial judge when directing the jury also made it clear that, in respect of the second charge, the prosecution had to prove the following three elements:", "zh-HK": "在整個審訊過程中，控方的案情、辯方的抗辯和法官指導陪審團的焦點都集中在申請人是否管有紙袋內的 4 磚毒品作非法販運用途。法官在引導陪審團時亦清楚說明在第二項控罪上，控方要證明以下 3 點：" } }, { "doc_id": 101, "seg_id": 34, "translation": { "en": "the applicant possessed the drugs as stated in the charge;", "zh-HK": "申請人管有控罪所指的毒品；" } }, { "doc_id": 101, "seg_id": 35, "translation": { "en": "the applicant possessed the drugs for the purpose of trafficking;", "zh-HK": "申請人管有毒品的目的是作販運用途；" } }, { "doc_id": 101, "seg_id": 36, "translation": { "en": "the trafficking was unlawful.", "zh-HK": "其販運是非法的。" } }, { "doc_id": 101, "seg_id": 37, "translation": { "en": "The trial judge also directed the jury that, when they were considering whether the applicant possessed the 4 blocks of drugs as stated in the second charge, if they believed the applicant’s explanation that at the material time his purpose and intention were to fetch one block of drugs for trafficking, then the jury had to consider finding the applicant not guilty. However, at that time inside the car, there were 4 people besides the applicant, and the 5 blocks of heroin inside the paper bag could be possessed either solely by the applicant, or by someone else inside the car, or even jointly by all the people inside the car. The prosecution said that what it had to prove was that the applicant possessed the 4 blocks of heroin for the purpose of unlawful trafficking. The prosecution further said that it was not its case that everyone inside the car jointly possessed the 4 blocks of heroin or that a certain person possessed and trafficked in those 4 blocks of heroin. Such propositions, in our view, over-simplified the legal issues involved in the present case. It is true that the prosecution had to prove that the applicant trafficked in the 4 blocks of heroin as stated in the second charge. The evidence, however, also showed that the driver had instructed the other passengers in the car to deal with the drugs inside the paper bag, and each of the passengers in the car did deal with those drugs. The jury could not overlook this question when they considered whether the applicant possessed the drugs inside the paper bag.", "zh-HK": "法官更引導陪審團在考慮申請人是否管有第二項控罪的 4 磚毒品時，如果他們相信申請人所說他當時的目的及意圖只是提取 1 磚毒品販運，那麼，陪審團就要考慮裁定申請人無罪。然而，當時在車廂內，除申請人外還有其他 4 名人士，紙袋內的 5 磚海洛英既可能是全屬申請人管有，也可能是屬車內某人所管有，甚或可能是屬車內所有人共同管有。控方指它要證明的是申請人管有 4 磚海洛英作非法販運用途，控方更說它的案情並不是指車內各人共同管有該 4 磚海洛英或是某一人管有及販運該 4 磚海洛英。本庭認為這個論點是過份簡化了本案所涉及的法律問題。控方無疑是要證明申請人販運第二項控罪所指的 4 磚海洛英，但本案的證據同時顯示車輛的司機曾經指示車內其他乘客處理紙袋內的毒品，車內的其他乘客亦有各自處理袋內的毒品，因此，陪審團在考慮申請人是否管有紙袋內的毒品時是不能忽略上述問題的。" } }, { "doc_id": 101, "seg_id": 38, "translation": { "en": "We do not agree with the submission made by Mr. Wong of counsel that it was unnecessary to explain to the jury the basis on which the applicant pleaded guilty to the first charge. Given that it had not been made clear that the applicant pleaded guilty to the first charge not because he possessed the paper bag and the one block of drugs it contained, it was very probable that the jury might have wrongly taken the view that, by pleading guilty to the first charge, the applicant had also admitted to possessing the paper bag and the one block of drugs inside the bag, and hence it was no longer necessary for the jury to consider whether the applicant possessed the paper bag. The jury might therefore have proceeded to consider whether the applicant possessed only the one block of drugs inside the paper bag or whether he possessed all the drugs inside the bag. The situation became even more confusing when the trial judge, at the request of the defence, emphasized to the jury that they had to consider whether the applicant had knowledge that there were 4 other blocks of substances and that those substances were drugs. The jury would very probably have been unable to clearly appreciate the conceptual difference between possession of the one block of drugs inside the paper bag and possession of the paper bag and all the items it contained. The jury might very probably have misunderstood that, when the applicant pleaded guilty to the first charge, he had also admitted to possessing the paper bag, and, as a result, might have overlooked the applicant’s explanation that he only intended to fetch one block of drugs.", "zh-HK": "王大律師表示在審訊時不需要向陪審團說明申請人承認第一項控罪的基礎，本庭不同意。在沒有清楚說明申請人非因管有紙袋和內載的 1 磚毒品而承認第一項控罪的情況下，陪審團極有可能因申請人已承認第一項控罪，而誤以為申請人已承認管有紙袋和內載的 1 磚毒品，遂認為無需就申請人是否管有涉案紙袋一點上再費週章，而僅去考慮申請人是管有紙袋內的 1 磚毒品還是管有紙袋內全部毒品。當原審法官因應辯方要求，向陪審團強調須考慮申請人是否知悉紙袋內有其他 4 磚物品或其他 4 磚物品是毒品時，情況遂變得更加混淆不清。陪審團極有可能無法在概念上清楚區分管有紙袋內的 1 磚毒品和管有紙袋和內載的所有物品。同時，陪審團也極有可能因誤以為申請人在承認第一項控罪時已承認管有涉案的紙袋，而忽略了申請人稱他目的只為提取 1 磚毒品的解說。" } }, { "doc_id": 101, "seg_id": 39, "translation": { "en": "The trial judge reminded the jury that they could not find the applicant guilty of the second charge merely because he was a drug addict and, in order to sustain his addiction, was prepared to deliver drugs for another person. In our judgment, such a direction was inadequate in the circumstances of the case.", "zh-HK": "法官在引導陪審團時指他們不可以因為申請人承認是吸毒者，甚至因為要支持他的毒癮甘心替人帶毒品就認為他必然有干犯第二控項罪。本庭認為在本案的特殊情形下，這樣的指引是不足夠的。" } }, { "doc_id": 101, "seg_id": 40, "translation": { "en": "We now consider whether such a defect should be accepted as a ground of appeal, given that the applicant did not explain at trial the reason behind his pleading guilty to the first charge. First, the submission made by defence counsel to the jury did not include an admission that the applicant possessed the one block of drugs as stated in the first charge. Second, we take the view that, as the defence counsel had not fully explained to the jury the grounds of the applicant’s defence, and those grounds went to the crux of the defence to the second charge, and in view of the fact that neither the prosecution nor the defence had disclosed how the quantities of drugs as stated in the charges were arrived at, justice requires that the applicant be given an opportunity to fully state his grounds of defence so that he can receive a fair trial.", "zh-HK": "本庭亦考慮申請人沒有在審訊時解釋承認第一項控罪的原因，現在可否容許這理由作為上訴的理由。首先，辯方律師向陪審團陳詞時沒有承認申請人管有第一項控罪所述的 1 磚毒品。其次，本庭認為在辯方律師沒有全面地向陪審團闡明申請人的答辯理由，而這理由又涉及第二項控罪的基礎答辯要點的情況下，再加上控辯雙方沒有向陪審團披露第一項控罪所指的毒品和份量是如何達致，按公義和公平審訊的原則，應給予申請人一個機會，以便他可以全面地提出他的抗辯理由。" } }, { "doc_id": 101, "seg_id": 41, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 101, "seg_id": 42, "translation": { "en": "23.For the above reasons, the applicant’s conviction is, in our judgment, unsafe and unsatisfactory. We grant leave to the applicant to appeal and, treating this hearing as the appeal itself, allow the appeal. We set aside the applicant’s conviction on the second charge and order that the case be remitted for retrial on the second charge. We also propose that, at the retrial, it should be made clear to the jury how the quantities of drugs as stated in the two charges were arrived at and on what basis the applicant pleaded guilty to the first charge.", "zh-HK": "基於上述原因，本庭認為申請人的定罪是不穩妥及不能令人滿意的。本庭批准上訴許可申請，並將這次聆訊當作正式上訴處理。本庭撤銷第二項控罪的定罪，並下令申請人需要就該控罪接受重審。本庭同時建議在重審時，應向陪審團說明兩項控罪所指的毒品和重量是如何達致，以及申請人是基於甚麼因素承認第一項控罪。" } }, { "doc_id": 102, "seg_id": 1, "translation": { "en": "Hon Yeung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案書：" } }, { "doc_id": 102, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 102, "seg_id": 3, "translation": { "en": "There were three defendants in the present case, namely, Lau Kim-hung (“Lau”), Chu An-bin (“Chu”) and the Applicant, Fung Hin-wah Edward.", "zh-HK": "本案原有三名被告人，即劉劍雄（“劉”）、朱晏賓（“朱”）、及申請人馮顯樺。" } }, { "doc_id": 102, "seg_id": 4, "translation": { "en": "Lau and Chu were charged with “conspiracy to offer advantages to a public servant” (the Applicant) in return for the Applicant’s providing prior warning of police impending action to them, “Ah Chun” and “Yiu Gor”, thereby enabling them to avoid culpability.", "zh-HK": "劉和朱被控串謀向一名公職人員（申請人）提供利益，以換取申請人向他們和“阿俊”及“耀哥”預先提供警方行動的資料，令他們能逃避罪責。" } }, { "doc_id": 102, "seg_id": 5, "translation": { "en": "The Applicant was charged with “misconduct in public office” by giving advice in relation to unlawful dangerous drugs and vice activities to Lau, Chu, “Ah Chun” and “Yiu Gor”.", "zh-HK": "申請人則被控藉公職作出不當行為，即就非法毒品及色情活動向劉、朱、“阿俊”及“耀哥”提供竟見。" } }, { "doc_id": 102, "seg_id": 6, "translation": { "en": "Lau, Chu and the Applicant all pleaded not guilty to the charges and their trial came before Deputy District Judge J. Lam.", "zh-HK": "劉、朱和申請人都否認控罪，並在區域法院暫委法官林偉權席前受審。" } }, { "doc_id": 102, "seg_id": 7, "translation": { "en": "Before the commencement of the trial, the Applicant asked to be tried separately from Lau and Chu. But his application was refused by Deputy District Judge Lam.", "zh-HK": "開審前，申請人要求和劉及朱分開審訊，但林法官拒絕該要求。" } }, { "doc_id": 102, "seg_id": 8, "translation": { "en": "During the trial, the Applicant, Lau and Chu all applied for a permanent stay of the trial and for the exclusion of the evidence alleged to be the conversations between them and “Ah Chun” and “Yiu Gor”, who were both undercover officers of the Independent Commission Against Corruption (“ICAC”). Their applications were also refused by Deputy District Judge Lam. Subsequently, Lau and Chu reversed their pleas to ones of guilty, whereas the Applicant maintained his plea of not guilty.", "zh-HK": "審訊期間，申請人、劉和朱都申請永久擱置審訊及摒棄案中指他們和廉政公署（“廉署”）卧底人員“阿俊”及“耀哥”的對話為證供。林法官亦否決了他們的申請。其後，劉和朱改為認罪，但申請人維持不認罪之立場。" } }, { "doc_id": 102, "seg_id": 9, "translation": { "en": "The Applicant was convicted after trial and sentenced to 6 months’ imprisonment. He was aggrieved with the conviction and now applies for leave to appeal against conviction.", "zh-HK": "經審訊後，申請人亦被裁定罪名成立及被判入獄6個月。申請人不服定罪，現提出上訴許可申請要求獲准就定罪上訴。" } }, { "doc_id": 102, "seg_id": 10, "translation": { "en": "Prosecution’s Allegations and Evidence", "zh-HK": "控方指控及證據" } }, { "doc_id": 102, "seg_id": 11, "translation": { "en": "The Applicant was a serving police sergeant and had been attached to Special Duties Squad 3 of Mong Kok District between January 2006 and March 2007.", "zh-HK": "申請人是一名警長，在2006年1月至2007年3月期間，駐守旺角警區特別職務隊第3隊。" } }, { "doc_id": 102, "seg_id": 12, "translation": { "en": "In early 2007 the ICAC was informed that a police officer provided protection to criminals by providing prior warning of police impending action to them, and an “undercover” investigator (“Ah Chun”) was thus assigned to make investigation. Lau was the only target person of the ICAC at that time.", "zh-HK": "2007年初廉署接獲資料指有警員包庇罪犯，向他們預告警方行動，故派出一調查主任（“阿俊”）以“卧底” 身份負責調查。當時劉是廉署的唯一目標人物。" } }, { "doc_id": 102, "seg_id": 13, "translation": { "en": "On 15 February 2007, “Ah Chun” was introduced to Lau, and through Lau he came to know Chu. Chu claimed to “Ah Chun” that he was engaged in trafficking in dangerous drugs and that his dangerous drugs activities had been under the protection of a police officer nicknamed “Wah Gor”. “Ah Chun” falsely claimed to Lau and Chu that his boss would like to set up a private club involving dangerous drugs and vice activities. Chu indicated to “Ah Chun” that (they) would have to offer advantages to “Wah Gor” in return for his protection.", "zh-HK": "2007年2月15日，“阿俊”經人介紹認識劉，並透過他認識朱。朱向“阿俊”承認自己曾販毒，更獲一名綽號“華哥”的警務人員包庇。“阿俊”向劉和朱假稱其老闆希望開設一毒品及賣淫會所後，朱向他表示要向“華哥”提供利益以取得其保護。" } }, { "doc_id": 102, "seg_id": 14, "translation": { "en": "“Ah Chun” introduced another ICAC “undercover officer”, “Yiu Gor”, posing as his boss, to Lau and they had a site visit at a place intended to be used for running the unlawful club. It was agreed by both parties that Lau would be responsible for the interior decoration of the club and he would waive the decoration fee in return for some shares of the club.", "zh-HK": "“阿俊”介紹假扮為其老闆的另一廉署“卧底”“耀哥”給劉認識，並相約前往視察一打算作為非法會所的地點。雙方同意由劉負責裝修會所，費用免付，但會用作換取會所股權的代價。" } }, { "doc_id": 102, "seg_id": 15, "translation": { "en": "On 5 June 2007, “Ah Chun” met Lau and Chu. During the meeting, Lau suggested that he would transfer his portion of shares of the club to Chu, who would supply dangerous drugs to the club. They also indicated that they would transfer a portion of their shares to “Wah Gor” who, in return, would provide protection, namely, by providing prior warning of impending police enforcement action against the club to them. Chu further suggested that the shares should be transferred to “Wah Gor” through the wife and relatives of “Wah Gor” in order to cover up their dealings.", "zh-HK": "2007年6月5日，“阿俊”和劉及朱會面。劉建議將其應佔的股權轉給朱，而朱則會向會所提供毒品。他們同時表示會將股權轉給“華哥”以換取“華哥”的保護，即在警方向會所採取行動前，向他們預先警告。朱更建議將股權轉到“華哥”的妻子及親屬名下，作為掩飾。" } }, { "doc_id": 102, "seg_id": 16, "translation": { "en": "On 22 June 2007, “Ah Chun” and “Yiu Gor” met Lau, Chu and the Applicant at Victoria City Seafood Restaurant. When the Applicant came to know about the plan for setting up an unlawful club which would involve the supply of dangerous drugs and hostess services, he gave “Ah Chun” and “Yiu Gor” some advice for the purpose of avoiding or mitigating any harm or inconvenience that would be caused to the unlawful club by police actions.", "zh-HK": "2007年6月22日，“阿俊”、“耀哥”和劉、朱及申請人在海都酒家會面。當申請人知悉有關開設提供毒品及女士服務的非法會所時，向“阿俊”和“耀哥”提出一些建議，以避免或減輕警方行動對非法會所做成的不利或不便。" } }, { "doc_id": 102, "seg_id": 17, "translation": { "en": "On 5 July 2007, Lau and the Applicant accompanied “Ah Chun” and “Yiu Gor” to attend a site visit at a place intended to be used for operating the club. The Applicant gave further advice for the purpose of mitigating the risk arising from operating an unlawful establishment with dangerous drugs and vice activities.", "zh-HK": "2007年7月5日，劉和申請人陪同“阿俊”及“耀哥”視察打算用作會所的場地時，申請人再作出一些建議，以減輕經營非法毒品和賣淫場所會導致的風險。" } }, { "doc_id": 102, "seg_id": 18, "translation": { "en": "During an interview with ICAC investigators after his arrest, the Applicant admitted to having attended the above two meetings.", "zh-HK": "被捕後，申請人和廉署調查員會面時承認曾出席過上述兩次會面。" } }, { "doc_id": 102, "seg_id": 19, "translation": { "en": "In fact, both meetings in which the Applicant had participated had been audio-taped by the undercover ICAC officers, and the meeting at Victoria City Seafood Restaurant had been video-taped as well. The contents of the audio/video recordings were consistent with the evidence of the undercover ICAC officers. The defence did not allege that the contents of the audio recordings were unreliable or likely to cause misunderstanding.", "zh-HK": "事實上申請人有份參與的兩次會面都有卧底廉署人員錄音，而在海都酒家的會面更有錄影。錄音/錄影記錄的內容和卧底廉署人員的證供吻合。辯方亦沒有指錄音記錄的內容是不可靠或會令人產生誤解的。" } }, { "doc_id": 102, "seg_id": 20, "translation": { "en": "According to the audio/video recordings of the meeting at Victoria City Seafood Restaurant on 22 June 2007 (P11 and P13), Lau, Chu, the Applicant, “Ah Chun” and “Yiu Gor” showed up together and remained in a room at the restaurant for nearly 3 hours.", "zh-HK": "根據2007年6月22日海都酒家的會面錄音/錄影記錄（P11和P13），劉、朱、申請人、“阿俊”和“耀哥”一起出現及逗留在酒家房間的時間近3小時。" } }, { "doc_id": 102, "seg_id": 21, "translation": { "en": "It is not necessary for this Court to repeat what each individual said and did during the meeting. But the Applicant was certainly aware of matters such as that “Ah Chun” and his boss, “Yiu Gor”, intended to set up a club where dangerous drugs and prostitutes would be supplied. The Applicant not only explained to “Ah Chun” and “Yiu Gor” what actions the police would take against clubs of the same kind, he also gave them some advice for the purpose of avoiding and mitigating the difficulties that might be faced by the unlawful club. The Applicant also mentioned about certain matters relating to the business of the unlawful club, such as liquor licences, what incidents would cause the club to be ordered to close down, and in case anything happened to the club, how to handle the situation if there was no “bouncer” at the club.", "zh-HK": "本庭無需詳細複述各人在會面時的言行。但申請人必然知悉“阿俊”及其“老闆”“耀哥”打算開設會所，而會所會有毒品及妓女供應等事。申請人不但向“阿俊”及“耀哥”解釋警方會對同類會所採取的行動，亦提出一些建議，目的是避免或減輕非法會所可能面對的困難。申請人亦談及一些和非法會所業務有關的事項，包括酒牌，甚麼事件會導致會所被封場及如會所沒有人“睇場”，有事故發生時應如何處理。" } }, { "doc_id": 102, "seg_id": 22, "translation": { "en": "Nevertheless, the Applicant made it clear that he did not know when police raids would be conducted, and that he could not offer any assistance in that kind of matter because police officers could not do so anymore. The Applicant indicated that he did not want to get involved in complicated situations, nor did he wish to participate in the business (of the club). But he agreed to have a look at the environment of the premises chosen to be the address of the club and to give some advice as a friend.", "zh-HK": "但申請人明確表示自己不知道警察會在甚麼時候進行掃蕩行動，而他亦不能在該事項幫忙，原因是警察已再不能這樣做。申請人表示不想捲入複雜情況，亦不願意參與業務，但同意幫眼看看會所選址環境及以朋友身份給些意見。" } }, { "doc_id": 102, "seg_id": 23, "translation": { "en": "Subsequently, at the appointed time on 5 July 2007, the Applicant went together with “Ah Chun”, “Yiu Gor” and Lau to a flat in Hang Lung Mansion, the chosen address of the unlawful club as alleged by “Ah Chun” and “Yiu Gor”. There was also an audio recording of this meeting as evidence (P17).", "zh-HK": "其後申請人應約和“阿俊”、“耀哥”及劉一起在2007年7月5日前往“阿俊”和“耀哥”聲稱非法會所位於恆隆商業大厦的選址。這次會面亦有錄音記錄為證（P17）。" } }, { "doc_id": 102, "seg_id": 24, "translation": { "en": "The Applicant said there should not be any problem regarding the application for liquor licence for the chosen address. When “Yiu Gor” asked him whether it was necessary to install a rear door to facilitate “girls” “to get away in the event of police raid”, the Applicant said that it was very difficult “to get away in the event of police raid”, and that if the unlawful establishment was decorated in a too conspicuous manner, it would all the more arouse suspicion of the police. The Applicant suggested that CCTV should be installed at the unlawful club so that whoever got in and out of the club could be monitored, and it would be better for security purpose. The Applicant also suggested that a notice board had to be put up in the unlawful club to remind customers not to take dangerous drugs. The Applicant did ask whether or not “girls” or “prostitutes from the Mainland” would be made available in the unlawful club, but he indicated that he was not quite familiar with how to handle matters relating to prostitutes in unlawful clubs. But he had also expressed some opinion on that issue as well as on how to handle the supply of dangerous drugs to the unlawful club.", "zh-HK": "申請人表示該選址出酒牌應該沒有問題。當耀哥問及是否要安裝後門方便“女仔”“走鬼”時，申請人表示“走鬼”很難，而如果非法場所弄得太礙眼，更會令警方懷疑。申請人建議非法會所應安裝CCTV，以便看到誰人進出，對保安較佳。申請人亦建議非法會所內要安裝告示牌，警告客人不要吸毒。申請人有查問過非法會所是否會有“女仔”、“北姑”，但表示對如何處理妓女在非法會所之事不太熟識，但他對該問題和如何處理供應會所毒品問題亦表達了一些意見。" } }, { "doc_id": 102, "seg_id": 25, "translation": { "en": "The Applicant lastly said he had not given any assistance to “Yiu Gor”, that he only made those remarks casually, and that what he had said might be incorrect.", "zh-HK": "申請人最後有說過他並沒有給“耀哥”任何幫助，他只是隨口說說，所說的亦非一定是對的。" } }, { "doc_id": 102, "seg_id": 26, "translation": { "en": "The Applicant’s Defence and Evidence", "zh-HK": "申請人的答辯理由及證據" } }, { "doc_id": 102, "seg_id": 27, "translation": { "en": "The Applicant did not give evidence in court. But he had called his wife and a retired police sergeant to give evidence for him.", "zh-HK": "申請人沒有作供自辯，但有傳召其太太及另一退休警長替他作供。" } }, { "doc_id": 102, "seg_id": 28, "translation": { "en": "The case of the Applicant was that during the two meetings he only expressed some ideas in terms of words and behaviour, which did not amount to actual crime, and that the opinion expressed by him was common knowledge.", "zh-HK": "申請人的立場是他在兩次會面時只是言行上一些表述，並無實質的犯罪行為，而他表達的意見亦是一般常識。" } }, { "doc_id": 102, "seg_id": 29, "translation": { "en": "The defence maintained that given the post of the Applicant, he could not offer any assistance to “Ah Chun” and “Yiu Gor”. Therefore, his words and conduct did not constitute serious misconduct.", "zh-HK": "辯方力稱以申請人的職位，他不能向“阿俊”和“耀哥”提供任何協助，故他的有關言行不構成嚴重的不檢行為。" } }, { "doc_id": 102, "seg_id": 30, "translation": { "en": "When the Applicant’s wife gave evidence in court, she said the Applicant was eager to help others, and he would from time to time answer some legal questions raised by friends and relatives. According to the retired police sergeant who gave evidence for the Applicant, the Applicant was an honest and reliable person who would not disclose any confidential information of his work. The retired police sergeant said sometimes it was necessary for police officers to contact informers in order to obtain intelligence.", "zh-HK": "申請人的太太作供時表示申請人喜歡幫助別人，亦會不時為親友解答法律問題。為申請人作供的退休警長則表示申請人誠實可靠，亦不會泄露其工作秘密。該名退休警長表示，警務人員有時須要和線人接觸以獲取情報。" } }, { "doc_id": 102, "seg_id": 31, "translation": { "en": "The Trial Judge’s Verdict", "zh-HK": "原審法官的裁定" } }, { "doc_id": 102, "seg_id": 32, "translation": { "en": "The trial judge refused to deal with the Applicant in a trial separately from Lau and Chu and also refused to grant a permanent stay of the proceedings or to exclude the evidence against the Applicant. The trial judge took the view that “Ah Chun” and “Yiu Gor” did not arrest the Applicant by entrapment, nor was the way they conducted the investigation so repulsive that it amounted to an affront to the public conscience.", "zh-HK": "原審法官拒絕將申請人和劉及朱分案處理，亦拒絕擱置聆訊或剔除針對申請人的證據。原審法官認為“阿俊”和“耀哥”並沒有誘捕申請人，而他們的調查手法亦不會令人反感或引起公憤。" } }, { "doc_id": 102, "seg_id": 33, "translation": { "en": "In respect of the charge against the Applicant, Deputy District Judge Lam stated clearly and unequivocally that he only gave weight to the conversation records relating to the two occasions in which the Applicant had participated, namely, P11, P13 and P17 and the relevant transcripts, namely P12 and P18.", "zh-HK": "就針對申請人的控罪，林法官開宗明義地說明，他只重視申請人有份參與的兩次對話的記錄，即P11、P13和P17及相關謄本即P12和P18。" } }, { "doc_id": 102, "seg_id": 34, "translation": { "en": "Based on the authorities including Shum Kwok Sher [2002] 5 HKCFAR 381, Sin Kam Wah [2005] 8 HKCFAR 192 and Wong Kwong Shun Paul [2009] 4 HKLRD 832, the trial judge set out five elements involved in the offence of misconduct in public office. After having carefully analyzed the Applicant’s words and conduct during the relevant meetings, the trial judge concluded that the Applicant’s words and conduct matched with the five elements, and therefore the Applicant did commit misconduct in public office.", "zh-HK": "原審法官根據案例，包括岑國社案[2002] 5 HKCFAR 381，冼錦華案[2005] 8 HKCFAR 192 及黃廣信案[2009] 4 HKLRD 832，列出藉公職作出不當行為罪行所涉及的五項元素。原審法官有極詳細分析申請人在有關會面時的言行。原審法官裁定申請人的言行和該五項元素吻合，故申請人確有藉公職作出不當行為。" } }, { "doc_id": 102, "seg_id": 35, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 102, "seg_id": 36, "translation": { "en": "A number of grounds of appeal have been advanced by Mr. S. K. Khattak, counsel for the Applicant. Mr. Khattak submitted that the trial judge should not have heard the trial of the charge against the Applicant and the trial of the charge against Lau and Chu together. Mr. Khattak argued that the joint trial had caused grave prejudice to the Applicant and had deprived him of a fair trial.", "zh-HK": "代表申請人的林沙文大律師提出多項上訴理由。林大律師指原審法官不應將針對申請人的控罪和針對劉及朱的控罪一併審理。林大律師指一併審訊的做法對申請人做成極大損害，令他不能獲得公平審訊。" } }, { "doc_id": 102, "seg_id": 37, "translation": { "en": "Mr. Khattak maintained that before the Applicant had any involvement in the incidents, “Ah Chun” had already made contact with Lau and Chu on a number of occasions, and during those occasions, they had talked about the Applicant and the contents of those conversations were extremely unfavourable to the Applicant. Therefore, the trial judge should have dealt with the Applicant in a trial separately from Lau and Chu. Mr. Khattak stressed that the charge faced by the Applicant was different from that faced by Lau and Chu; while the prosecution further alleged that Lau and Chu were the persons who unlawfully offered advantages to the Applicant, the Applicant was unable to instantly give a reply or raise a defence to those allegations. Further, Lau and Chu even pleaded guilty to the charge, which showed that they agreed that they had indeed offered advantages to the Applicant. Mr. Khattak also submitted that the joint trial had deprived the Applicant of the opportunity to call Lau and Chu to give evidence for him.", "zh-HK": "林大律師力稱在申請人還沒有參與事件前，“阿俊”已有和劉及朱多番接觸，而接觸時，他們都有談及申請人，內容更對申請人極為不利。因此原審法官理應將申請人和劉及朱分案處理。林大律師強調申請人和劉及朱面對不同的控罪，而控方更指劉和朱是向申請人非法提供利益的人，但申請人卻無法即時就該些指控作出回應或答辯。更甚者，劉和朱更承認控罪，顯示他們同意確有向申請人提供利益。林大律師亦指同案審理令申請人喪失了傳召劉及朱替他作供的機會。" } }, { "doc_id": 102, "seg_id": 38, "translation": { "en": "Mr. Khattak emphasized that the evidence in support of the charge was obtained by entrapment and excessive use of leading questions by the investigating officers, in breach of the freedom of speech empowered by the Basic Law and the Bill of Rights. Therefore, the trial judge should not have refused to stay the trial or to exclude the evidence against the Applicant. Mr. Khattak maintained that the degree of entrapment in the present case was an extremely serious one, which was sufficient for the court to stay the trial or to exclude the evidence unfavourable to the Applicant. Mr. Khattak had cited various authorities including judgments given by the British courts, the European Court of Human Rights and the Hong Kong courts in support of his argument. The cases most particularly relied upon by Mr. Khattak include Teixeira de Castro v Portugal [1998] 28 EHRR 101 and R v Loosely [2001] 4 All ER 897. Mr. Khattak submitted that the investigative means adopted by “Ah Chun” and “Yiu Gor” was identical to the one adopted by the two police officers in Teixeira de Castro, and thus it should be reproached as well.", "zh-HK": "林大律師強調支持控罪的證據是透過誘捕及調查人員過份使用帶引問話而取得，亦違反了《基本法》及《人權法》所賦予的言論自由，故原審法官不應拒絕擱置審訊或拒絕將針對申請人的證據摒棄。林大律師力稱本案的誘捕程度極之嚴重，足以令法庭擱置審訊或剔除對申請人不利的證據。林大律師援引各宗案例，包括英國法庭，歐洲人權法庭及本港法庭的判決支持其立場。林大律師特別依賴的案件包括Tei xeira de castro v Portugal [1998] 28 EHRR 101和 R v Loosely [2001] 4 All ER 897。林大律師指“阿俊”和“耀哥”的查案手法，和Tei xeira de castro案的兩名警察的查案手法相同，故亦需同受譴責。" } }, { "doc_id": 102, "seg_id": 39, "translation": { "en": "In his 114-page long written submission, Mr. Khattak stressed that during the first meeting, the ICAC officers took the initiative to provide whisky to the Applicant and create a “drinking” ambience. In the opinion of Mr. Khattak, the approach adopted by the ICAC officers was inappropriate, and seriously undermined the Applicant’s right of silence, namely, the right to make a statement voluntarily and the right of freedom of speech. Mr. Khattak maintained that there was nothing to show that the Applicant was predisposed to commit the offence of offering protection on criminal activities; and instead, the Applicant was simply making some improper remarks under the influence of alcohol.", "zh-HK": "在其長達114頁的書面陳述，林大律師強調在第一次會面時，廉署人員主動向申請人提供威士紀酒，亦營做“飲杯”的氣氛。林大律師認為廉署人員的做法不恰當，更嚴重破壞了申請人的緘默權，即自願作供及言論自由之權利。林大律師力稱申請人沒有表現包庇罪行的傾向而只是在酒精影響下作出一些不太恰當的言論。" } }, { "doc_id": 102, "seg_id": 40, "translation": { "en": "Mr. Khattak emphasized that the Applicant’s words and conduct during the two meetings did not match with the necessary elements of the offence of misconduct in public office, and that the trial judge also failed to give proper weight to the exculpatory parts of the Applicant’s words and conduct. Mr. Khattak maintained that even if the Applicant’s words and conduct were improper, they were not too serious. In respect of the above issue, Mr. Khattak in his written submission had set out in detail the testimonies and contents of the audio recordings of the relevant witnesses. Mr. Khattak submitted that the misconduct done by the Applicant was not intentional. Further, the Applicant’s misconduct was not serious and he had a reasonable excuse, therefore the court should not have found him guilty.", "zh-HK": "林大律師強調申請人在兩次會面的言行並不符合藉公職作出不當行為控罪所需的犯罪元素，而原審法官亦沒有將申請人言行之脫罪部份給予應得之比重。林大律師力稱申請人的言行，即使不當，但亦非太嚴重。就上述議題，林大律師在其書面陳述詳細列出有關證人的證言及錄音內容。林大律師指申請人並非蓄意作出不當行為，加上他的不當行為並非嚴重而他亦有合理辯解理由，故法庭不應裁定他罪名成立。" } }, { "doc_id": 102, "seg_id": 41, "translation": { "en": "In addition to the above grounds of appeal, Mr. Khattak also submitted that not only were the investigative means adopted by the ICAC officers in breach of the Independent Commission Against Corruption Ordinance (“ICAC Ordinance”), the course of investigation was also an abuse of process, being sufficient to amount to an affront to the public conscience. Mr. Khattak argued that since “Ah Chun” and “Yiu Gor” were the ones who offered advantages to Lau and Chu to induce the Applicant, the investigative means adopted by the ICAC and the course of the investigation would amount to an affront to the public conscience.", "zh-HK": "除了上述的上訴理由外，林大律師更指廉署人員在本案的調查手法不但違反廉署條例，其調查過程更是濫用程序及足以引起公憤。林大律師指“阿俊”和“耀哥”是提供利益給劉及朱去引誘申請人，故廉署的調查手法及過程會引起公憤。" } }, { "doc_id": 102, "seg_id": 42, "translation": { "en": "It was submitted by Mr. Khattak that according to the ICAC Ordinance, only when ICAC officers made discovery in the course of investigating offences under the Prevention of Bribery Ordinance or Election (Corrupt and Illegal Conduct) Ordinance in connection with those offences, could they continue to follow up the matters and take actions. Mr. Khattak asserted that the ICAC, “in defiance of the law”, conducted the investigations at all costs while knowing full well that the case under investigation was not connected to corruption, and that there was insufficient evidence to prove that the Applicant had committed any offence. Mr. Khattak further stated that this problem must be addressed in a serious manner, otherwise once this precedent was allowed, ICAC officers could make use of whatever means to investigate any suspected offence.", "zh-HK": "林大律師指根據廉署條例，廉署人員在調查和《防止賄賂條例》或《選舉（舞幣及非法行為）條例》發現和該些罪行有關時，才可繼續跟進及採取行動。林大律師力指廉署“有法不依”，明知調查案件與貪污無關，亦沒有足夠證據證明申請人犯有任何罪行，卻依然不顧一切進行調查。林大律師更指這問題必需嚴厲正視，否則先例一開，廉署人員便可以運用任何手法去調查任何可疑罪行。" } }, { "doc_id": 102, "seg_id": 43, "translation": { "en": "In the early paragraphs of his written submission, Mr. Khattak also set out in detail the Applicant’s background and the commendations and meritorious awards which the Applicant had received while serving in the Police Force.", "zh-HK": "林大律師在其書面陳述的初段，更將申請人的背景及他在警隊時獲得之讚賞及功勳詳細列出。" } }, { "doc_id": 102, "seg_id": 44, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 102, "seg_id": 45, "translation": { "en": "Joint Trial", "zh-HK": "同案審理" } }, { "doc_id": 102, "seg_id": 46, "translation": { "en": "Where there are more than one defendant and each of them faces individual charges, the court has a discretion to decide whether they should be tried together. Sachs J at page 261 (line B-C) of the judgment of Assim [1996] 2 QB 249 had this to say:", "zh-HK": "法庭有酌情權決定多過一名被告人面對不同控罪時應否同案審理。Sachs J法官在Assim [1996] 2 QB 249案的判案書第261頁B-C行有以下詳論：" } }, { "doc_id": 102, "seg_id": 47, "translation": { "en": "“Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of courts (sic) in one indictment and can, subject always to the discretion of the court, be tried together.”", "zh-HK": "“當構成針對多名被告人的個別罪行之可利用證據在時間上或與其他因素是有關連的情況下，而將他們同案審理是符合司法公正時，將他們根據同一公訴書一起審理是恰當的。但應否這樣做，要由法官根據其酌情權作出。”" } }, { "doc_id": 102, "seg_id": 48, "translation": { "en": "At page 573 of the judgment of Ludlow v Metropolitan Police Commissioner [1970] 1 All ER 567, their Lordships also stated clearly that:", "zh-HK": "在Ludlow v Metropolitan Police Commissioner [1970] 1 All ER 567案判案書573頁，大法官亦表明：" } }, { "doc_id": 102, "seg_id": 49, "translation": { "en": "“…the proper conclusion to be drawn from the judgments as a whole is that the law and the facts have been and should be taken into account in deciding whether offences are similar or dissimilar in character.”", "zh-HK": "“…根據整體案例得出的適當結論是考慮不同罪行是否性質相似時，事實和法律都必須考慮在內。”" } }, { "doc_id": 102, "seg_id": 50, "translation": { "en": "It is a matter for the discretion of the court to decide, where there are more than one defendant and each of them faces individual charges, whether they should be tried together. An appeal based on the ground of an erroneous exercise of such discretionary power stands very little chance of success.", "zh-HK": "決定多過一名被告人面對不同控罪時應否同案審理屬酌情權的決定，以錯誤行使酌情權作為上訴理由，成功機會不大。" } }, { "doc_id": 102, "seg_id": 51, "translation": { "en": "In the present case, “Ah Chun” and “Yiu Gor” came into contact with the Applicant successfully through Lau and Chu, as a result of which there were two meetings (on 22 June 2007 and 5 July 2007 respectively) between them and the Applicant.", "zh-HK": "在本案“阿俊”和“耀哥”是透過劉和朱才能成功接觸到申請人，導致他們和申請人在2007年6月22日及2007年7月5日的兩次會面。" } }, { "doc_id": 102, "seg_id": 52, "translation": { "en": "The dealings between “Ah Chun” and “Yiu Gor” and Lau and Chu were obviously connected to those between “Ah Chun” and “Yiu Gor” and the Applicant, which took place one after the other. It was during the above dealings that Lau and Chu alleged that a police officer offered protection on the crime of trafficking in dangerous drugs, and finally Lau and Chu even admitted to having committed the offence as charged. The police officer referred to by them was obviously the Applicant. Although the charge against the Applicant was different from that against Lau and Chu, both charges arose from the same undercover operation and involved common background and witnesses. There were sufficient reasons for the trial judge to exercise his discretion to conduct a joint trial of the charge against the Applicant and that against Lau and Chu.", "zh-HK": "“阿俊”、“耀哥”和劉、朱的交往明顯和“阿俊”、“耀哥”和申請人的交往有關連，而他們的交往亦是一次接着一次的。劉和朱亦是在上述交往期間曾指有警方人員包庇販毒罪行而最終更承認干犯了他們被控的罪行。他們所指的警方人員亦明顯是申請人。針對申請人的控罪和針對劉、朱的控罪，雖然不同，但都是源自同一卧底行動，亦涉及共通背景及證人。原審法官有充份理由，行使酌情權就針對申請人的控罪和針對劉、朱的控罪共同審理。" } }, { "doc_id": 102, "seg_id": 53, "translation": { "en": "Mr. Khattak maintained that during the dealings between Lau and Chu and “Ah Chun”, they had said a lot of things unfavourable to the Applicant. As the Applicant was unable to properly call Lau and Chu to give evidence for him, it was therefore unfair to the Applicant for him to be tried together with them.", "zh-HK": "林大律師力稱當劉及朱和“阿俊”交往時曾說過很多對申請人不利的事，而申請人卻不能適當地傳召劉和朱替他作供，因此將劉及朱和申請人同案審理對申請人不公。" } }, { "doc_id": 102, "seg_id": 54, "translation": { "en": "Before the commencement of the hearing on the case of the Applicant, Lau and Chu had already pleaded guilty to their charge, the Applicant could have called them to give evidence for him. As the Applicant elected not to do so, he could not rely on this ground to support his contention that the trial was unfair to him. In view of the charge to which Lau and Chu had pleaded guilty, it is unrealistic to suggest that the Applicant would have called them to give evidence.", "zh-HK": "在申請人案情聆訊開始前，劉及朱已經承認了控罪，申請人是可以傳召他們為自己作證。申請人選擇不這樣做，不能以此支持他指審訊對他不公的立場。考慮到劉和朱所承認的控罪，申請人會傳召他們作供的說法是不切實際的。" } }, { "doc_id": 102, "seg_id": 55, "translation": { "en": "It cannot be denied that in the absence of the Applicant, Lau and Chu had said something unfavourable about him on various occasions. But this case was tried by a professional judge alone, not by a jury. The trial judge could certainly identify which evidence could be given in evidence against the Applicant, and which evidence could not.", "zh-HK": "無可否認，劉及朱確曾有在申請人不在場時說過一些對申請人不利的話，但本案不涉及陪審團審理，而是由一專業法官單獨審理。原審法官必能分辨甚麼證據可以作為指控申請人的證據，甚麼證據不能。" } }, { "doc_id": 102, "seg_id": 56, "translation": { "en": "In fact, the trial judge stated clearly at paragraph 63 of his judgment that the conversations between “Ah Chun” and “Yiu Gor” and Lau and Chu, which took place in the absence of the Applicant, definitely could not be used as evidence against the Applicant. The same position was taken by the prosecution. The trial judge stated clearly that no bias would be formed and no adverse inference would be drawn against the Applicant on the basis of what Lau and Chu had said, and that in deciding the charge against the Applicant, he would only take into account the conversations in which the Applicant had participated.", "zh-HK": "事實上原審法官在其判案書第63段表明申請人不在場時，“阿俊”、“耀哥”和劉、朱的對話絕非用作針對申請人的證據，而控方亦持相同立場。原審法官表明不會因為劉、朱說過的話對申請人有任何偏見或作出對他不利的推斷而他考慮針對申請人的控罪時，只會考慮申請人有份參與的對話。" } }, { "doc_id": 102, "seg_id": 57, "translation": { "en": "In deciding whether or not the Applicant was guilty as charged, both the trial court and this Court can only base upon the conversations which took place during the two meetings, on 22 June 2007 and 5 July 2007 respectively, between the Applicant and “Ah Chun” and “Yiu Gor”. Both “Ah Chun” and “Yiu Gor” were present on both occasions. They both gave evidence in court and there were audio/video recordings in respect of the course of the events. Further, no issue was ever taken by the Applicant on the contents of the conversations during the two meetings.", "zh-HK": "原審法庭及本庭在考慮申請人是否有罪時，只能依據申請人在2007年6月22日及2007年7月5日和“阿俊”及“耀哥”的兩次會面時的對話。兩次會面“阿俊”和“耀哥”都在場，他們有作供而過程亦有錄音/錄影記錄。對該兩次會面的對話內容申請人亦是沒有異議的。" } }, { "doc_id": 102, "seg_id": 58, "translation": { "en": "In the above circumstances, we do not see any unfairness in the decision of the trial judge in exercising his discretion to try the Applicant, Lau and Chu together. There is no basis at all to support this ground of appeal advanced by Mr. Khattak.", "zh-HK": "在上述情況下，本庭實不能察覺原審法官行使酌情權，將申請人和劉及朱同案審理對申請人有任何不公。林大律師提出這項上訴理由完全是沒有基礎支持的。" } }, { "doc_id": 102, "seg_id": 59, "translation": { "en": "Entrapment", "zh-HK": "誘捕" } }, { "doc_id": 102, "seg_id": 60, "translation": { "en": "Before the judgment of R v Sang [1980] AC 402 was given, there were a series of judgments to suggest that the court had a discretion to exclude any evidence relevant to the offence but obtained by unlawful, improper or unfair means.", "zh-HK": "在R v Sang [1980] AC 402案件作出判決前，有一系列的判決指法庭有酌情權將一些和控罪有關，但是以非法、不恰當或不公平手法取得的證據剔除。" } }, { "doc_id": 102, "seg_id": 61, "translation": { "en": "The legal issue involved in Sang is: where the court is satisfied that the offence with which the accused is charged was committed at the instigation of an instigator, and that but for the instigation of the instigator, the accused would not have committed the relevant offence, whether the court should exclude the evidence adduced by the prosecution against the accused and/or grant a stay of the trial.", "zh-HK": "上述Sang案件所涉及的法律問題是假若法庭信納被告人被控告的罪行是由一名挑撥者引發的而如非該名挑撥者慫恿，被告人不會干犯有關控罪時，法庭應否剔除控方針對被告人的證據及/或將審訊擱置。" } }, { "doc_id": 102, "seg_id": 62, "translation": { "en": "The House of Lords took the view that no matter how wide the scope of discretion for excluding any admissible evidence was, the evidence of an offence could not be excluded by reason that it was caused by the instigation of an instigator, because entrapment did not constitute a defence to any offence.", "zh-HK": "上議院認為不論剔除可接受證據的酌情權的界限多廣，都不能因罪行的證據是由一名挑撥者的慫恿所導致而要剔除，原因是誘捕(entrapment)並非罪行的答辯理由。" } }, { "doc_id": 102, "seg_id": 63, "translation": { "en": "In dealing with the above issue, the House of Lords also had to consider whether the court had a discretion to refuse to allow evidence – being evidence other than evidence of admission – to be given in any circumstances in which such evidence was relevant and of more than minimal probative value.", "zh-HK": "在處理上述議題時，上議院同時要考慮除了招認供詞外，法庭是否有酌情權去剔除一些有關而舉證價值(probative value) 亦非極少的證據。" } }, { "doc_id": 102, "seg_id": 64, "translation": { "en": "In Sang, Viscount Dilhorne of the House of Lords had this to say at page 437 of the judgment:", "zh-HK": "在上述Sang 案，上議院大法官Viscount Dilhorne 在判案書的第437頁有以下評論：" } }, { "doc_id": 102, "seg_id": 65, "translation": { "en": "“(1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. (2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as a result of the activities of an agent provocateur.”", "zh-HK": "“（1）刑事案件的主審法官有酌情權拒絕採納一些他認為偏見效應遠超過其舉證價值的證據。（2）除了招認供詞和其他案發後，由被告人取得之證據外，法官並無酌情權以有關及可採納的證據是以不當或不公平手法取得而拒絕採納該些證據。證據取得的方法和法庭無關。證據是由挑撥者的行為取得，並非行使酌情權剔除的理由。”" } }, { "doc_id": 102, "seg_id": 66, "translation": { "en": "Lord Steyn at page 112 of the judgment of R v Latif [1996] 1 WLR 104 made the following observations on whether the court should stay the trial where entrapment was involved in a case:", "zh-HK": "就案件涉及誘捕時，法庭應否擱置審訊，Lord Steyn法官在R v Latif [1996] 1 WLR 104判案書的112頁有以下評論：" } }, { "doc_id": 102, "seg_id": 67, "translation": { "en": "“If the court always refuses to stay such proceedings, the perception will be that the court condones criminal conduct and malpractice by law enforcement agencies. That would undermine public confidence in the criminal justice system and bring it into disrepute. On the other hand, if the court were always to stay proceedings in such cases, it would incur the reproach that it is failing to protect the public from serious crime.”", "zh-HK": "“假若法庭每次都拒絕擱置審訊，會導致一個看法，就是法庭縱容執法機構的非法和瀆職行為，削弱公眾對刑法的信心及破壞其聲譽。另一方面來說，假若法庭在這類案件每次都擱置審訊，公眾會因為法庭沒有保護他們免受嚴重罪行困擾而作出指責”。" } }, { "doc_id": 102, "seg_id": 68, "translation": { "en": "Mr. Khattak maintained that the role played by “Ah Chun” and “Yiu Gor” in the present case was identical to that played by the two police officers in Teixeira de Castro, and that it was held by the European Court of Human Rights that the two police officers’ actions had gone beyond those of undercover agents of a law enforcement agency, thereby constituting entrapment. In Teixeira de Castro, it was concluded by the European Court of Human Rights that the two police officers involved in the case had incited the commission of the offence, and that but for their incitement Mr. Teixeira de Castro would not have committed the offence of trafficking in dangerous drugs at all. Mr. Khattak argued that but for the pressure persistently and repeatedly imposed by “Ah Chun” and “Yiu Gor”, who first induced Lau and then came into contact with the Applicant through the intermediary of Chu, the Applicant would not have committed the relevant offence at all.", "zh-HK": "林大律師力稱“阿俊”和“耀哥”在本案所扮演的角色和上述Tei xeira de castro 案的兩名警員相同而歐洲人權法庭裁定該兩名警員的行動超越卧底執法人員所應採用的, 因此構成誘捕。在Tei xeira de castro 案歐洲人權法庭認定涉案的兩名警員煽動罪行, 而若非他們的煽動，Tei xeira de castro 先生根本不會干犯販毒罪行。林大律師指若非“阿俊”和“耀哥”鍥而不捨、屢次施壓，先利誘劉和透過朱接觸到申請人，申請人根本不會干犯有關控罪。" } }, { "doc_id": 102, "seg_id": 69, "translation": { "en": "We note that Teixeira de Castro is a case from Portugal. The two police officers in the case hoped that through a drug addict (VS) they would be able to identify his dangerous drug supplier. The two officers offered to buy several kilograms of dangerous drugs from VS, and VS agreed (to find a supplier). However, despite being pressed by the two officers, VS was still unable to locate one. Subsequently, the two officers went to VS’s home saying that they were now interested in buying heroin. VS mentioned the name of Teixeira de Castro as being someone who might be able to find some dangerous drug; however, VS could only obtain the address of Teixeira de Castro from another person, FO. Therefore, the two officers, VS and FO all went to the residence of Teixeira de Castro together. After Teixeira de Castro, at FO’s request, met up with the two officers and VS, the officers said they wished to buy 20 grams of heroin for 200,000 Euros (sic) and produced a roll of bank notes from the Bank of Portugal. Teixeira de Castro agreed (to procure the heroin) and went with FO to JPO’s home. JPO then obtained three sachets of heroin, weighing 20 grams in total, from someone else and handed them over to Teixeira de Castro in exchange for a payment which exceeded 100,000 escudos (currency unit of Portugal and Cape Verde). Teixeira de Castro took the dangerous drugs to VS’s home. At that time, VS and the two officers were waiting outside. Finally, when Teixeira de Castro took out a sachet of dangerous drug, he was arrested by the officers. During a search of his body, the officers found another two sachets of dangerous drug, 43,000 escudos in cash and a gold bracelet.", "zh-HK": "本庭注意到Tei xeira de castro 案是源自葡萄牙的案件。案件中的兩名警員希望可以透過一名吸毒者(VS) 得知供應毒品人士的身份。兩名警員向VS表示會購數公斤之毒品而VS表示同意。但雖然在該兩名警員的壓迫下，VS 仍然未能找到供應者。其後，兩名警員前往VS的住所並向他表示有興趣購買海洛英。VS指Tei xeira de castro 可能會找到一些毒品，但他只可以從另一人FO處取得Tei xeira de castro 的住址。結果兩名警員、VS和FO一起前往Tei xeira de castro 的居所。當Tei xeira de castro 應FO之要求和兩名警員及VS會合後，警員表示打算以20萬歐元購買20克海洛英，並同時展示一卷葡國紙幣。Tei xeira de castro 同意並和FO一起前往JPO的居所。結果JPO從另一人處取得三小袋共重20克的海洛英交給Tei xeira de castro 以換取超過10萬埃斯庫多（葡萄牙和佛得角貨幣單位）。Tei xeira de castro 將毒品帶往VS家，而當時VS和兩名警員已在外面等候。最後當Tei xeira de castro 出示一包毒品後遭警員拘捕。警員在其身上搜出另外兩包毒品、43,000埃斯庫多及一金手錬。" } }, { "doc_id": 102, "seg_id": 70, "translation": { "en": "The European Court of Human Rights set out the features of Teixeira de Castro, including: (1) the drug-trafficking operation conducted by the police officers had not been ordered or supervised by a judge; (2) there was no reason for the competent authorities to suspect that Teixeira de Castro was a drug trafficker; in fact, he had no criminal record and no preliminary investigation concerning him had been opened; the police officers only came into contact with him through the intermediaries of VS and FO; (3) the dangerous drugs were not obtained from Teixeira de Castro’s home; they were obtained from a third party who had in turn obtained them from another person; (4) Teixeira de Castro did not have more drugs in his possession than the quantity the police officers had requested thereby going beyond what he had been incited to do by the police; (5) there was no evidence to support the argument that Teixeira de Castro was predisposed to commit offences; and (6) Teixeira de Castro had been convicted mainly on the basis of the statements of the two police officers. The European Court of Human Rights concluded that the two police officers did not confine themselves to investigating Teixeira de Castro’s criminal activity in an essentially passive manner, but exercised an influence such as to incite the commission of the offence. The European Court of Human Rights took the view that the two police officers’ actions went beyond those of undercover agents, because they instigated the offence and there was nothing to suggest that without their intervention it would have been committed.", "zh-HK": "歐洲人權法庭列出Tei xeira de castro 案的特點，包括（一）有關警員進行的販毒行動並未經法官授權或在其監控下；（二）有關當局沒有理由懷疑Tei xeira de castro 是一名販毒者，事實上他沒有犯罪記錄，亦未遭任何初步調查。警方是透過VS 和FO才能接觸到他；（三）毒品並非在Tei xeira de castro 家中取得，而是經第三者再從另一人取得；（四）Tei xeira de castro 管有的毒品並未超越警員教唆他取得的份量為多；（五）沒有證據支持Tei xeira de castro 有犯罪傾向；及（六）裁定Tei xeira de castro 有罪全建基在兩名警員的供詞。歐洲人權法庭認定有關的兩名警員調查Tei xeira de castro 的罪行時並非採取消極或被動方法而是控制他人鼓動他犯案。歐洲人權法庭認為涉案兩名警員的行動超越卧底人員所應採納的，原因是他們是煽動罪行的人，而沒有他們的介入，有關罪行不會出現。" } }, { "doc_id": 102, "seg_id": 71, "translation": { "en": "In Teixeira de Castro, the police officers violated the regulations by conducting an anti-drug-trafficking operation without an order of and supervision by a judge. In the course of the operation, after they had come into contact with Teixeira de Castro by oppressive means, with a huge sum of money they further encouraged him to obtain dangerous drugs from another drug trafficker through a third person.", "zh-HK": "在Tei xeira de castro 案，警員違反規則，在沒有法官授權及監控下進行反販毒行動，而在過程中是以威逼手法接觸到Tei xeira de castro後，再以巨額金錢鼓動他透過他人從另一毒販取得毒品。" } }, { "doc_id": 102, "seg_id": 72, "translation": { "en": "In the present case, the investigation conducted by “Ah Chun” and “Yiu Gor” was not in breach of any regulation. They investigated the Applicant because there were information and reasons for them to believe that a police officer had offered protection on criminal activities. The crime committed by the Applicant was to offer assistance to people intending to engage themselves in unlawful activities, with his words and conduct forming the primary basis of the offence. We do not see any oppression, incitement, instigation or encouragement imposed on him to say any incriminating words. It was not necessary for the Applicant to go to the place which allegedly would be used as the address of the club, nor was there any oppression, incitement, instigation or encouragement in any form imposed by anybody on him to say anything.", "zh-HK": "在本案，“阿俊”和“耀哥”進行的調查並沒有違反任何規則。他們有資料亦有理由認為有警員包庇犯罪行為而調查申請人。申請人的罪行是向一些正打算進行違法活動的人士提供協助，而構成罪行主要的基礎是他的言行。本庭實不能察覺有任何強迫、煽動、唆使、或鼓動他說出構成犯罪的說話。申請人無需前往指會用作會所的場地，更沒有人以任何形式強迫、煽動、唆使、或鼓動他說任何話。" } }, { "doc_id": 102, "seg_id": 73, "translation": { "en": "We do not see any similarity between the present case and Teixeira de Castro. The conduct of “Ah Chun” and “Yiu Gor” cannot be compared with that of the two police officers in that case.", "zh-HK": "本庭則看不到本案和Tei xeira de castro 案有任何相類似之處。“阿俊”和“耀哥”的行為根本不能和該案的兩名警員的行為相提並論。" } }, { "doc_id": 102, "seg_id": 74, "translation": { "en": "In R v Loosely, it was pointed out by Lord Hutton that in dealing with a case where undercover investigation of offences was involved, it was necessary for the court to balance two competing requirements: (1) those who commit crimes should be convicted and punished; and (2) there should not be an abuse of process which would constitute an affront to the public conscience. At paragraph 100 of his judgment, Lord Hutton cited the observations made by McHugh J in Ridgeway v The Queen (1995) 184 CLR 19 at page 92 of the judgment:", "zh-HK": "在R v Loosely 案Lord Hutton大法官指出法庭處理卧底調查罪行的案件時，需要平衡兩個對立的要求：（一）犯罪者理應被定罪及受罰；及（二）不應有濫用程序而導致公憤的情況出現。在其判案書第100段，Lord Hutton大法官援引Mc Hugh J在Ridgeway v The Queen (1995) 184 CLR 19案判案書第92頁的論點：" } }, { "doc_id": 102, "seg_id": 75, "translation": { "en": "“I do not think that it is possible to formulate a rule that will cover all cases that arise when an accused person seeks to stay a prosecution on the ground that the offence was induced by or was the result of the conduct of law enforcement authorities. The ultimate question must always be whether the administration of justice will be brought into disrepute because the process (sic) of the Court are being used to prosecute an offence that was artificially created by the misconduct of law enforcement authorities. That question should be determined after considering four matters: (1) Whether conduct of the law enforcement authorities induced the offence. (2) Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused has been charged. (3) Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose. (4)Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence.”", "zh-HK": "“本席認為不可能訂下規則覆蓋被告人以罪行是誘使或是由執法機構行為所導致而要求擱置審訊的申請。最終要決定的問題是法庭是否遭利用去檢控由執法機構不當行為所導致的人為罪行而令執行司法蒙羞。決定該問題是應先考慮以下四項因素：（一）罪行是否執法人員所煽動的；（二）如罪行是執法人員煽動的，在提出煽動時，執法人員是否有合理基礎懷疑被告人可能干犯有關罪行或同類罪行或是否忠誠地調查和被告人被控的類似罪行；（三）作出煽動前，被告人是否有意圖有機會出現時干犯有關或同類罪行；及（四）罪行是否是執着的再三要求，恐嚇、詐騙和一些和有關罪行或同類罪行無關的報酬或誘使所導致的。”" } }, { "doc_id": 102, "seg_id": 76, "translation": { "en": "Lord Hutton particularly pointed out at paragraph 101 of the judgment that:", "zh-HK": "Lord Hutton 大法官特別指出（判案書第101段）：" } }, { "doc_id": 102, "seg_id": 77, "translation": { "en": "“In balancing the relevant factors the English courts have placed particular emphasis on the need to consider whether a person has been persuaded or pressurised by a law enforcement officer into committing a crime which he would not otherwise have committed, or whether the officer did not go beyond giving the person an opportunity to break the law, when he would have behaved in the same way if some other person had offered him the opportunity to commit a similar crime, and when he freely took advantage of the opportunity presented to him by the officer.”", "zh-HK": "“在平衡有關因素時，英國法院特別着重考慮是否有人遭執法人員說服或強迫去干犯一宗他不應會干犯的罪行，或執法人員是否沒有超越給予該人犯罪的機會，而同一犯罪機會由他人提供時，該人是否會作出同一反應，即按執法人員給予他的機會而自由行事。”" } }, { "doc_id": 102, "seg_id": 78, "translation": { "en": "Although Mr. Khattak repeatedly emphasized that there was no basis for the ICAC to investigate into the case where a police officer was alleged to have provided protection on criminal activities, we do not agree with his argument. From the dealings and conversations between “Ah Chun” and “Yiu Gor” and Lau and Chu, there were sufficient reasons for the ICAC to believe that someone provided protection on criminal activities. As the Applicant was the police officer concerned, definitely there were reasons for the ICAC to investigate the suspected offence or offences, contrary to the argument put forward by Mr. Khattak that the investigation should have been stopped two months odd after its commencement. Although the investigation made initially by the ICAC was about a police officer offering protection on the crime of trafficking in dangerous drugs, and the Applicant was eventually prosecuted for and convicted of the offence of misconduct in public office, as both offences by nature are about a police officer providing assistance to criminal elements, they are offences of the same kind. The Applicant, together with Lau and Chu, met with “Ah Chun” and “Yiu Gor” twice. In the absence of any reasonable explanation, this can be inferred as his having the intention to assist the criminal elements. Given his capacity of a police officer, if he had no intention to assist the criminal elements, we do not see any reason why he would have attended those meetings, in particular the second meeting which took place at the chosen address of the unlawful club.", "zh-HK": "雖然林大律師重複強調廉署沒有基礎調查警員包庇罪行的案件，但本庭不同意他的說法。由“阿俊”和“耀哥”和劉及朱的交往及對話，廉署有足夠理由相信確有人包庇罪行，而申請人就是有關警員，廉署絕對有理由就其懷疑的罪行進行調查，而非林大律師所指在調查後兩個多月便應停止。雖然廉署起初是調查警員包庇販毒罪行，而申請人最終被檢控和被定罪的是公職人員行為不檢罪，但兩種罪行的性質都是警員向犯罪份子提供協助，故屬同類罪行。申請人兩次和劉、朱與“阿俊”和“耀哥”會面，在沒有合理解釋時可被推斷為他有意圖協助犯罪份子。假若他沒有意圖協助犯罪份子，以他警員身份，本庭實看不出他為何會出席有關會面，特別是在非法會所選址的第二次會面。" } }, { "doc_id": 102, "seg_id": 79, "translation": { "en": "There was no evidence to show that when “Ah Chun” and “Yiu Gor” met the Applicant, they had done any act by way of persuasion and inducement, encouragement, instigation, or compulsion to the Applicant in order to induce the Applicant to say anything to assist the criminal elements intending to set up an unlawful club.", "zh-HK": "沒有證據顯示“阿俊”、“耀哥”和申請人會面時，有作出過任何勸誘、鼓勵、鼓動、強迫等行為以誘使申請人說出協助犯罪份子打算開設非法會所的話。" } }, { "doc_id": 102, "seg_id": 80, "translation": { "en": "During the trial, it was mentioned that “Ah Chun” and “Yiu Gor”, through Chu, advised the Applicant to provide protection to the club and in so doing he could obtain indirectly some shares of the club as his reward. This might be a cause of inducement to him. First of all, we must point out that the Applicant did not adduce any evidence to show that he had knowledge of the above suggestion, and thus he could not claim that he had been influenced by that cause of inducement. In any event, even if the said cause of inducement did exist, such cause was not a reward unrelated to the offence in the present case or similar offences. As pointed out by Chu in one of the telephone conversations, a police officer would not, without any reason, do any act to assist a criminal, and when a police officer did any act to assist a criminal, he must be expecting to obtain a reward.", "zh-HK": "聆訊過程中，有提及“阿俊”和“耀哥”透過朱向申請人建議他包庇會所會間接得到會所的股份為報酬，可能對他做成誘因 。本庭首先指出，申請人沒有提出證據顯示他知悉上述建議，因此他不能指有受該誘因影響。無論如何，即使確有該誘因，該誘因亦非和本案罪行或同類罪行無關的報酬。誠如朱在其中一次通話中指出，警員不會無故作出任何協助罪犯的行為，如警員作出任何協助罪犯的行為，他必然冀望會取得報酬。" } }, { "doc_id": 102, "seg_id": 81, "translation": { "en": "Having considered the detailed submission made by Mr. Khattak, we do not agree that the present case involved any act of entrapment. It was both right and necessary for the ICAC officers to conduct the investigation.", "zh-HK": "本庭已經考慮過林大律師的仔細陳述，本庭不同意本案涉及任何誘捕行為，廉署人員進行的調查工作，不但正確，亦是有需要的。" } }, { "doc_id": 102, "seg_id": 82, "translation": { "en": "Further, the Court of Appeal of Hong Kong has made detailed analysis on the legal issues arising from entrapment in HKSAR v Wong Kwok Hung [2007] 2 HKLRD 621. The Court of Appeal agreed that even if the trial of the accused could be conducted fairly, a trial judge had jurisdiction to stay proceedings in a criminal trial on the basis that a defendant was subjected to entrapment by the law enforcement agency. However, before staying the proceedings, the court would have to be satisfied that if the trial were to continue, it would be an abuse of process which amounted to an affront to the public conscience with severe consequences for public confidence in the administration of justice.", "zh-HK": "再者，香港上訴法庭在HKSAR v Wong Kwok Hung [2007] 2 HKLRD 621案就誘捕所帶出的法律問題有詳細的分析。 上訴法庭同意即使被告人能得到公平審訊，但法庭有權因被告人遭執法機構誘捕而將審訊擱置。但作出擱置前，法庭需信納審訊是濫用司法程序而嚴重程度更是對公眾良知的公然侮辱，及公眾對執行公義的信心蕩然無存。" } }, { "doc_id": 102, "seg_id": 83, "translation": { "en": "The Court of Appeal pointed out that the factors to be considered by the court included the “Opportunity Test” and a balancing exercise between the nature and seriousness of the offence and the conduct of the law enforcement agency in order to achieve reasonable proportionality.", "zh-HK": "上訴法庭指出法庭需考慮的因素包括“犯罪機會測試” (Opportunity test) 及將罪行的性質及嚴重程度和執法機構行為相比，以達到合理比重。" } }, { "doc_id": 102, "seg_id": 84, "translation": { "en": "The Court of Appeal clearly pointed out that if the accused had already had the intent to commit an offence and the law enforcement agency did no more than provide the defendant with an unexceptional opportunity to commit the offence, then the “entrapment” allegation might not stand. The Court of Appeal further stressed that where serious offences were of a sort normally carried out in secrecy and were difficult to detect, then a more pro-active role on the part of the law enforcement agency was both necessary and excusable.", "zh-HK": "上訴法庭明確指出假若被告人已抱有犯罪的意圖而執法機構只是向他提供一個正常機會去干犯罪行，則“誘 捕”的指稱不一定成立。上訴法庭更強調當嚴重罪行是秘密行事，故難於偵察，則執法機構扮演較主動角色是有需要的，亦是值得原諒的。" } }, { "doc_id": 102, "seg_id": 85, "translation": { "en": "In considering the question of “proportionality”, it was necessary for the court to determine whether the law enforcement agency’s activities and behaviour remained within acceptable bounds or went too far. Even if the law enforcement agency’s activities and behaviour went beyond what was reasonable or necessary, the court must be satisfied that the investigator’s role in the defendant’s commission of any offence was an affront to the public conscience before making an order to stay the proceedings.", "zh-HK": "考慮“比重”時，法庭要決定執法機構的活動和行為是否屬可接受範圍內或是太過份，即使執法機構的活動和行為太過份，法庭作出擱置命令前，亦必先要信納查案者在被告人犯罪的過程中所扮演的角色是對公眾良知的公然侮辱。" } }, { "doc_id": 102, "seg_id": 86, "translation": { "en": "In our view, the decision in Wong Kwok Hing on the relevant issues has provided very useful guidance. We cannot ignore that the use of undercover operations is an essential weapon in the armoury of the law enforcement agencies to investigate unlawful activities, and the use of undercover operations plays an important part in combating serious crime, including corruption offences (see the judgment of Secretary for Justice v Lam Tat-ming (2000) 3 HKCFAR 168 at paragraphs 180J-181A).", "zh-HK": "本庭認為Wong Kwok Hung 案的判決在有關議題上是極具指導性的。本庭不能忽視卧底行動是執法人員調查非法活動的重要武器之一，而對嚴重罪行，包括貪污罪行更是不可或缺的（見Secretary for Justice v Lam Tat-ming (2000)3 HKCFAR 168案判案書第180J-181A段）。" } }, { "doc_id": 102, "seg_id": 87, "translation": { "en": "The background of the present case shows that the ICAC commenced the undercover operation after they have been informed that a police officer might have offered protection on criminal activities. The undercover agents asked to meet the Applicant only after Lau and Chu had expressed that the Applicant could provide assistance in relation to the operation of the unlawful club. When the Applicant showed up at Victoria City Seafood Restaurant on 22 June 2007, he met “Ah Chun” and “Yiu Gor” for the first time. After the Applicant came to know that the unlawful club would involve the supply of dangerous drugs and “prostitutes from the Mainland”, he took the initiative to give advice, and when “Ah Chun” and “Yiu Gor” echoed what he had said, the Applicant further gave some more advice.", "zh-HK": "本案的背景顯示廉署知悉可能有警員包庇罪犯後展開卧底行動。當劉、朱表示申請人能就非法會所的經營提供協助後，卧底人員才要求和申請人會面。當申請人在2007年6月22日在海都酒家出現時，他是首次和“阿俊”、“耀哥”見面。申請人知悉非法會所會供應毒品和“北姑”後，主動提出意見，而“阿俊”和“耀哥”順勢附和，令申請人提供更多的意見。" } }, { "doc_id": 102, "seg_id": 88, "translation": { "en": "Subsequently, after the meeting on 22 June 2007, the Applicant became the major target of the investigation and it was necessary to carry on the undercover operation. On 5 July 2007, accompanied by Lau, the Applicant even went with “Ah Chun” and “Yiu Gor” to attend a site visit at a place which he fully knew would be used as the address of the unlawful club. Meanwhile, the Applicant not only failed to discharge his duties as a police officer, he also gave some “expert” advice to “Ah Chun” and “Yiu Gor” on a number of occasions, for the purpose of helping them evade more effectively the consequence and criminal responsibility that their criminal acts would bring about.", "zh-HK": "結果在2007年6月22日的會面後，申請人已成為主要調查目標而卧底行動亦有必要繼續進行。2007年7月5日，申請人更在劉的陪同下和“阿俊”及“耀哥”去視察他明知會用作非法會所的地點。其間申請人不但沒有履行其身為警員的職務，更多番向“阿俊”及“耀哥”提供一些“專業”意見，目的令他們能更有效地逃避其犯罪行為會導致的後果及刑責。" } }, { "doc_id": 102, "seg_id": 89, "translation": { "en": "Mr. Khattak stressed that after the first meeting, Lau had called “Ah Chun”, saying that he had made some inappropriate remarks during the first meeting, thereby causing embarrassment to the Applicant. Mr. Khattak’s argument is that the above incident shows that the Applicant was not happy with the questions raised by “Ah Chun”. According to the contents of the telephone conversations between Lau and “Ah Chun”, the Applicant was unhappy simply because he thought the way in which “Ah Chun” had said about it was too obvious, not because he disagreed with the questions raised by “Ah Chun”. Lau said the Applicant could say anything privately, but as that was just the first time that he had ever met “Ah Chun” and “Yiu Gor”, he would appear to be “evasive”. Lau even said, “… As Wah Gor put it, in fact, if you operate it in this way, certainly there wouldn’t be any problem. But who dare to guarantee, I mean, do you understand? Others can’t tell you that, how could (others) answer you (?) Even if it’s really like that, (others) still can’t answer you by saying ‘yes’…. If you have audio-taped what he had said, that would mean he’s done for, isn’t it (?)”", "zh-HK": "林大律師強調在第一次會面後，劉曾經致電“阿俊”，指他在首次會面時作出不當言辭，令申請人尷尬。林大律師的立場是上述事件顯示申請人對“阿俊”提出的問題感到反感。根據劉和“阿俊”的通話內容，申請人表示反感並非他不同意“阿俊”提出的問題，他只是不滿“阿俊”的說法太明顯。劉指申請人私下可以甚麼都說，但他和“阿俊”及“耀哥”只是第一次見面，會有“避忌”。劉甚至說 “…華哥話齌其實你咁樣開就一定無問題喇，但邊個咁擔保你啫。即係你明唔明呀？人哋唔可以話俾你聽，點答你啫。就算真係都唔可以答你係啦，…你錄左佢音佢咪釘得。”" } }, { "doc_id": 102, "seg_id": 90, "translation": { "en": "Mr. Khattak said the Applicant was not happy with the way in which “Ah Chun” had put it. It was not the substance of what “Ah Chun” had said that upset the Applicant, rather, it was the way in which “Ah Chun” had expressed it, because he (the Applicant) had misgivings. This certainly cannot support the Applicant’s ground of appeal.", "zh-HK": "林大律師指申請人對“阿俊”的說法感到反感。申請人所表示的反感並非“阿俊”說話的實質，而只是他表達的方法，因為他有顧忌。這點絕對不能支持申請人的上訴理由。" } }, { "doc_id": 102, "seg_id": 91, "translation": { "en": "Although the motive of the Applicant was unknown, it was obvious that he intentionally and willingly took the initiative to provide some information obtained by him in the capacity of a police officer to some people known to him as “criminal elements”, for the purpose of helping them evade or reduce the possibility of their being arrested by law enforcement agencies for their crimes. During the two meetings with the Applicant, “Ah Chun” and “Yiu Gor” merely provided him with an opportunity to commit crime. In the course of the events, “Ah Chun” and “Yiu Gor” played an active role which caused the Applicant to further express his “advice”. What was done by “Ah Chun” and “Yiu Gor” was both necessary and reasonable, or, at least, excusable.", "zh-HK": "雖然申請人的動機不明，但他明顯是故意及樂意並主動向一些他知悉是“犯罪份子”提供一些以他警員身份獲得之資料，目的是令他們的犯罪行為能避免或減低執法機關的緝捕行動。“阿俊”和“耀哥”在兩次和申請人會面時只不過是向他提供一個犯罪機會。在過程中“阿俊”和“耀哥”曾採取主動角色令申請人進一步表達其“意見”。“阿俊”和“耀哥”的行為是有需要的，亦是合理或至小是值得原諒的。" } }, { "doc_id": 102, "seg_id": 92, "translation": { "en": "In the opinion of the trial judge, “… even if members of the public hold a different view in respect of the sincerity, investigation conduct and means of “Ah Chun” and “Yiu Gor”, members of the public would never think that their approach is so repulsive that it amounts to an affront to the public conscience. In the course of bringing prosecution against Lau, Chu and the Applicant, the prosecution has not abused any judicial process or brought disrepute to the administration of justice. The continuation of the trial did not bring injustice to any of the defendants. Lau, Chu and the Applicant were unable to prove on the balance of probabilities that their trial should be terminated.” The ruling of the trial judge was a correct and reasonable one, with which we agree.", "zh-HK": "原審法官認為“公眾就算對“阿俊”和“耀哥”的真誠、調查行為及手法存有不同的意見，總不會覺得他們的做法令人反感而引起公憤。而在檢控劉、朱及申請人的事項中，控方都沒有濫用司法程序，也沒有令司法陷入不明譽之中，繼續審訊對各被告並非不公平。劉、朱及申請人未能在相對可能性的標準下證明關於他們的審訊應被終止”。原審法官的裁決正確、合理。本庭認同。" } }, { "doc_id": 102, "seg_id": 93, "translation": { "en": "The Applicant’s words and conduct during the two meetings were not confessions made as the result of some undercover operation after the commission of crime. Before the meetings, there was no evidence to show that the Applicant had committed any crime. In fact, it was during the two meetings that the Applicant said those incriminating words and did those incriminating acts. The undercover agents merely provided an opportunity to the Applicant to commit an offence, rather than taking a statement of confession from him to support an offence which he had already committed. In any event, having considered the audio recordings of the two meetings, we do not agree that “Ah Chun” and “Yiu Gor” did take the initiative to obtain information from the Applicant and that their conversations should be regarded as interrogation.", "zh-HK": "申請人在兩次會面時的言行，並非是干犯罪行後，透過一些卧底行動而作出的招認。會面前，沒有證據顯示申請人已犯了罪。事實上，申請人是在兩次會面中才作出構成罪行的言行。卧底人員只是向申請人提供犯罪的機會，而非向他取得招認供詞，用以支持他已犯的罪行。無論如何，考慮過兩次會面的錄音記錄後，本庭不同意“阿俊”和“耀哥”有主動地向申請人索取資料而他們的對話應被視為審問(interrogation)。" } }, { "doc_id": 102, "seg_id": 94, "translation": { "en": "Further, during the two meetings, so far as the Applicant was concerned, “Ah Chun” and “Yiu Gor” were merely two persons intending to operate an unlawful club. There was no relationship of trust between the two parties. In the presence of “Ah Chun” and “Yiu Gor”, the Applicant was not in a vulnerable position, nor did he feel that he was obliged to say those improper words and do those improper acts. “Ah Chun” and “Yiu Gor” were also unable to manipulate the Applicant and to induce him to say anything which he should not have said.", "zh-HK": "再者, 兩次會面時, 對申請人而言，“阿俊”和“耀哥”只是兩名打算營辦非法會所的人士。雙方並沒有信賴(Trust) 關係，而申請人面對“阿俊”及“耀哥”時地位並非脆弱，亦不會覺得有責任作出有關不當言行。“阿俊”和“耀哥”亦沒有能力操控申請人，誘使他說出一些他不應會說出的話。" } }, { "doc_id": 102, "seg_id": 95, "translation": { "en": "In fact, according to the audio recordings, when the Applicant was expressing his views to “Ah Chun” and “Yiu Gor”, he was very pro-active, willing and enthusiastic. There is no reasonable basis to support Mr. Khattak’s suggestion that the Applicant had been deprived of his right of silence.", "zh-HK": "事實上，根據錄音記錄，申請人向“阿俊”和“耀哥”表達意見時，他是極為主動、樂意及熱誠的。林大律師指申請人保持諴默的權利遭剝奪的說法，並無合理基礎支持。" } }, { "doc_id": 102, "seg_id": 96, "translation": { "en": "When “Ah Chun” and “Yiu Gor” met the Applicant, they were investigating whether or not Lau and Chu had offered advantages to a police officer. From the information obtained by their investigation, in particular the words and conduct of Lau and Chu, there were definitely sufficient reasons for “Ah Chun” and “Yiu Gor” to suspect that the Applicant might have committed an offence of having unlawfully accepted advantages or that his misconduct might be directly or indirectly resulted from a bribery offence.", "zh-HK": "“阿俊”、“耀哥”和申請人會面時，正在調查劉及朱是否有向警務人員提供利益。從他們調查所得的資料，特別是劉及朱作出的言行，“阿俊”和“耀哥”絕對有足夠理由懷疑申請人涉嫌干犯了非法收受利益罪，或其不當行為是直接或間接因賄賂罪行而引致的。" } }, { "doc_id": 102, "seg_id": 97, "translation": { "en": "Section 10(2) of the Independent Commission Against Corruption Ordinance provides that where, during an investigation by the Commission of a (suspected) offence under the Prevention of Bribery Ordinance, another offence is disclosed, any such officer may without warrant arrest a person if he reasonably suspects that such person is guilty of that other offence and he reasonably suspects that such other offence was connected with, or that either directly or indirectly its commission was facilitated by, the suspected offence under the Prevention of Bribery Ordinance.", "zh-HK": "《廉政公署條例》第10(2)列明廉政公署在調查一宗《防止賄賂條例》所訂罪行時，如揭發另一項罪行，則任何該等廉署人員如合理地懷疑某人已犯該另一項罪行，以及他合理地懷疑該另一項罪行與涉嫌犯《防止賄賂條例》所訂罪行有關連、或是直接或間接因涉嫌犯《防止賄賂條例》所訂罪行而引致，可無需手令而將該人逮捕。" } }, { "doc_id": 102, "seg_id": 98, "translation": { "en": "During the investigation by the ICAC of the Applicant on whether he had committed an offence of accepting an advantage, it was disclosed that the Applicant had committed the offence of misconduct in public office. The ICAC was perfectly entitled to make investigation and arrest the Applicant for that offence.", "zh-HK": "廉署在調查申請人是否犯了非法收受利益罪的過程，揭發申請人干犯了藉公職作出不當行為罪。廉署絕對有權作出調查及以該罪名拘捕申請人。" } }, { "doc_id": 102, "seg_id": 99, "translation": { "en": "It was suggested by Mr. Khattak that the ICAC, in defiance of the law, conducted the investigations at all costs while knowing full well that the case under investigation was not connected to “corruption”, and that this not only has violated the ICAC Ordinance, but was also an abuse of process. This is an unfounded allegation and there is no basis at all to support it.", "zh-HK": "林大律師指廉署有法不依，明知調查案件與“貪污”無關，卻仍然不顧一切進行調查，不但違反廉署條例，更是濫用程序的說法屬無的放矢，全無基礎支持。" } }, { "doc_id": 102, "seg_id": 100, "translation": { "en": "We do not quite understand the allegation advanced by Mr. Khattak that the admission of the contents of the audio recordings in support of the offence has violated the freedom of speech. Under the Basic Law and the Bill of Rights, Hong Kong residents are entitled to freedom of speech. Freedom of speech, however, like any other rights, is not completely unrestricted. In the present case, the matter which had to be dealt with was the incriminating words. No matter how leniently the matter is to be dealt with, freedom of speech will never cover any incriminating words.", "zh-HK": "本庭不大理解林大律師所指採納支持控罪的錄音內容違反了言論自由，根據《基本法》和《人權法案》本港居民都享有言論自由，但言論自由和其他自由一樣，並非是全無限制的。本案要處理的是構成刑事罪行的言論，不論以如何寬大的處理方法，言論自由都不包括構成罪行的言論。" } }, { "doc_id": 102, "seg_id": 101, "translation": { "en": "In our view, the decisions by the trial judge to refuse to make an order to stay the trial and to refuse to exclude the evidence relating to the two meetings were correct and reasonable.", "zh-HK": "本庭認為原審法官拒絕作出擱置審訊的命令及拒絕將兩次會面的證據剔除是正確合理的決定。" } }, { "doc_id": 102, "seg_id": 102, "translation": { "en": "Whether the Applicant’s words and conduct amounted to misconduct", "zh-HK": "申請人的言行是否構成不當行為" } }, { "doc_id": 102, "seg_id": 103, "translation": { "en": "According to the Police Force Ordinance, as a member of the Police Force, the Applicant shall be deemed to be always on duty (section 21), and his duties shall be to take lawful measures for:", "zh-HK": "根據《警隊條例》，作為警隊的一份子，申請人須當作為一直在當值中（第21條），而其職責是採取合法措施以：" } }, { "doc_id": 102, "seg_id": 104, "translation": { "en": "Preserving the public peace;", "zh-HK": "維持公安；" } }, { "doc_id": 102, "seg_id": 105, "translation": { "en": "Preventing and detecting crimes and offences. (section 10)", "zh-HK": "防止刑事罪及犯法行為的發生和偵查刑事罪及犯法行為。（第10條）" } }, { "doc_id": 102, "seg_id": 106, "translation": { "en": "After the Applicant came to know that “Ah Chun” and “Yiu Gor” had rented and renovated a property for setting up a club which would involve offences such as supplying dangerous drugs and “prostitutes from the Mainland”, he went so far as to give them advice, including advice relating to actions which the police would take against establishments of the same kind, how to enable the club to evade or reduce the difficulties arising from the unlawful businesses, and how to make adjustments to the renovation and facilities of the club, in order to avoid as much as possible the criminal dealings carried out in the club being disclosed. In his written submission, Mr. Khattak had carefully analyzed the words uttered by the Applicant during the two meetings. Mr. Khattak stressed that what the Applicant had said was only his understanding of the law, and should not be regarded as advice. Mr. Khattak submitted that the Applicant’s words and acts did not amount to serious misconduct. We do not intend to make an excessively detailed analysis of the Applicant’s words and conduct during the two meetings. The key point is that while the Applicant knew full well that “Ah Chun” and “Yiu Gor” intended to be engaged in some unlawful businesses, he still met with “Ah Chun” and “Yiu Gor” twice through the arrangement of (a) suspicious person. As an experienced police officer, the Applicant must have tried his best, in the course of saying those improper words and doing those improper acts, to cover up and tone down their seriousness. There was only one purpose for the Applicant to meet “Ah Chun” and “Yiu Gor” – that is, to assist them in their conduct which the Applicant fully knew to be unlawful. Mr. Khattak’s suggestion that the misconduct of the Applicant was not serious is entirely unconvincing.", "zh-HK": "申請人在知悉“阿俊”和“耀哥”租用及裝修物業開設會所並會在會所內供應毒品和“北姑”等犯罪行為後，竟然向他們提供意見，包括警方對該類場所採取的行動、如何令會所逃避或減輕因違法業務會面對的困難、如何就會所的裝修及設施作出調較，盡量避免會所進行的犯罪勾當曝光。林大律師在其書面陳述，有極仔細分析申請人在兩次會面時的說話。他強調申請人只是說出他對法律的一些認知，不算是意見。他指申請人的言行並非嚴重不當。本庭不打算將申請人在兩次會面時的言行作出太詳細分析。重點是申請人明知“阿俊”和“耀哥”打算從事一些非法業務，他仍然透過可疑人物，先後兩次和“阿俊”及“耀哥”會面。申請人是資深警務人員，亦必然會在作出不當言行過程中，盡量作出掩飾及淡化該些不當言行的嚴重性。但申請人和“阿俊”及“耀哥”會面，目的是有一個，就是協助他們進行一些申請人明知是違法的行為。林大律師指申請人的不當行為並非嚴重的說法完全沒有說服力。" } }, { "doc_id": 102, "seg_id": 107, "translation": { "en": "The conduct of the Applicant not only has violated his duties as a police officer, but would also, as ruled by the trial judge, harm the social ethics, assist the growth of crimes and harm public order. The assistance provided by the Applicant to the criminal elements would facilitate them in committing crimes more easily and would make it more difficult for the police to crack those crimes, and certainly would also bring disrepute to the Police Force.", "zh-HK": "申請人的行為不但違反其身為警務人員的職責，更如原審法官所裁定，會傷及社會風化、助長罪惡、損害公共秩序。申請人向犯罪份子提供協助，令他們的罪行更容易得逞及難於偵破，亦必然會令警隊蒙羞。" } }, { "doc_id": 102, "seg_id": 108, "translation": { "en": "When the Applicant gave advice to “Ah Chun” and “Yiu Gor”, he expressed that he would not participate in the operation of the club, or accept any advantage, or tip them off in advance; instead, he would only give advice as a friend. This would not reduce the seriousness of his conduct.", "zh-HK": "申請人向“阿俊”和“耀哥”提供意見時表示不會參與會所的經營，不會收取利益，也不會向對方預早通風報信，而只是以朋友身份提供竟見，並不會減低其行為的嚴重性。" } }, { "doc_id": 102, "seg_id": 109, "translation": { "en": "Of course, if the Applicant had really participated in the operation of an unlawful club, had accepted advantages and had given prior warning of the police’s impending action to them, he would have faced more serious allegations.", "zh-HK": "當然假若申請人真的參與不法會所的經營、收取利益及向對方預報警隊的行動，他會面對更為嚴重的指控。" } }, { "doc_id": 102, "seg_id": 110, "translation": { "en": "We do not agree with Mr. Khattak’s suggestion that the Applicant’s words and conduct during the two meetings did not match with the elements of the relevant offence. We also do not agree with Mr. Khattak’s suggestion that the trial judge had failed to give proper weight to the exculpatory parts of the Applicant’s words and conduct. There was no evidence whatsoever to show that the Applicant had any reasonable excuse or explanation for giving those advice and information to “Ah Chun” and “Yiu Gor” during the two meetings. Nor was the Applicant’s ignorance of law and his thinking that it was not against the law if he did not accept any reward, a reasonable excuse capable of explaining away his misconduct which definitely was inconsistent with his capacity as a police officer.", "zh-HK": "本庭不同意林大律師指申請人在兩次會面的言行不符合有關控罪的元素。本庭亦不同意他指原審法官沒有將申請人的言行脫罪部份給予應得的比重。根本沒有任何證據顯示申請人有任何合理辯解或理由在兩次會面向“阿俊”和“耀哥”提供該些意見及資料。申請人不懂法律，以為不收取報酬就非犯法亦絕非合理辯解，令其能洗脫一些和他警員身份絕不相符的不當行為。" } }, { "doc_id": 102, "seg_id": 111, "translation": { "en": "We agree with the analysis of the trial judge. The Applicant’s words and conduct have squarely matched with the five essential elements of the offence of misconduct in public office.", "zh-HK": "本庭同意原審法官的分析。申請人的言行完全符合藉公職作出不檢行為所需的五項犯罪要素。" } }, { "doc_id": 102, "seg_id": 112, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 102, "seg_id": 113, "translation": { "en": "The decision to convict the Applicant of the above offence is absolutely a correct and reasonable one. It is neither unsafe nor unsatisfactory. The Applicant’s application for leave to appeal against conviction is dismissed.", "zh-HK": "裁定申請人上述罪名成立絕對是正確合理的裁決，並沒有任何不穩妥之處。本庭不批准申請人就定罪上訴。" } }, { "doc_id": 102, "seg_id": 114, "translation": { "en": "Mr. S. K. Khattak and Mr. Roy Yip instructed by Wong & Co. for the Applicant", "zh-HK": "申請人：由黃律師事務所轉聘大律師林沙文及大律師葉榮燊代表。" } }, { "doc_id": 102, "seg_id": 115, "translation": { "en": "Mr. Alex Lee, Senior Assistant Director of Public Prosecutions, for the Respondent", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員李運騰代表。" } }, { "doc_id": 103, "seg_id": 1, "translation": { "en": "Hon Chu J (giving the reasons for of the Court):", "zh-HK": "由高等法院原訟法庭法官朱‍芬‍齡頒發上訴法庭判案理由書：" } }, { "doc_id": 103, "seg_id": 2, "translation": { "en": "The Applicant was charged in the District Court with one count of conspiracy to defraud, contrary to common law and sections 159E(2) and 159C(6) of the Crimes Ordinance, Cap. 200. He pleaded not guilty and was convicted after trial. On 27 June 2006, he was sentenced to 6 years’ imprisonment.", "zh-HK": "申請人在區域法院被控一項串謀詐騙罪，違反普通法，《刑事罪行條例》第 200 章第 159E(2)和159C(6)條。他否認控罪，經審訊後被判罪名成立，在2006 年6 月27 日被判入獄6 年。" } }, { "doc_id": 103, "seg_id": 3, "translation": { "en": "The Applicant applied for leave to appeal against conviction and sentence.", "zh-HK": "申請人不服定罪和刑罰，申請上訴許可。" } }, { "doc_id": 103, "seg_id": 4, "translation": { "en": "At the hearing, the Applicant abandoned his application for leave to appeal against conviction, which was accordingly dismissed.", "zh-HK": "由於申請人在本聆訊時放棄有關定罪的上訴許可申請，該申請為本庭撤銷。" } }, { "doc_id": 103, "seg_id": 5, "translation": { "en": "The facts", "zh-HK": "案情" } }, { "doc_id": 103, "seg_id": 6, "translation": { "en": "The present case involves a fraudulent scheme in which a shell company was set up and dishonoured cheques were issued for the purpose of dishonestly obtaining goods from suppliers. A total of 19 suppliers had been defrauded, and the total value of the goods obtained was over $7 million. The facts as found by the trial judge are outlined below.", "zh-HK": "本案是一宗以成立空殼公司和開出不能兌現支票的手法，向貨物供應商詐騙貨物的案件。控罪共涉19 名供應商，被騙貨物總值700 多萬元。經原審法官裁定的事實可簡述如下。" } }, { "doc_id": 103, "seg_id": 7, "translation": { "en": "In September 2003, the Applicant and one Cheung Tung Wah (張‍東‍華) (“Cheung”) set up a company called Shun Bo Enterprise Limited (transliteration) (信寶實業有限公司) (“Shun Bo”). The Applicant and Cheung were the shareholders and sole directors of Shun Bo. In November of the same year, the Applicant and Cheung opened two current bank accounts and they were both authorized signatories of those accounts. The Applicant and Cheung gave false addresses when they applied for the company registration and business registration of Shun Bo and when they opened the said bank accounts.", "zh-HK": "2003 年9 月申請人與一位名為張‍東‍華的人成立了信寶實業有限公司(“信寶”)。申請人和張‍東‍華是信寶的股東，亦是唯一的兩名董事。同年11 月，申請人和張‍東‍華在銀行開設了兩個往來賬戶。他們兩人是該等賬戶的授權簽名人。在辦理信寶的公司註冊及商業登記和開設銀行賬戶時，申請人和張‍東‍華都提供了虛假的住址。" } }, { "doc_id": 103, "seg_id": 8, "translation": { "en": "Between April and July 2004, the conspirators (as particularised in the charge) contacted suppliers in the names of the Applicant and Cheung and ordered goods from them under the name of Shun Bo. The goods were delivered between late June and early July of that year. Shun Bo purported to pay for the goods by issuing cash cheques or post-dated cheques to the suppliers. All those cheques were to be drawn upon the said bank accounts and most of the cheques were signed and issued on Friday 9 July 2004.", "zh-HK": "在2004 年4 月至7 月期間，控罪詳情提及的串謀者，並以申請人和張‍東‍華的身份與供應商接洽，以信寶的名義向他們訂購貨物。貨物在同年6 月底及7 月初交付。信寶向這些供應商開出現金支票或期票，以支付貨款。這些支票都是由上文提及的銀行賬戶發出，而且大部分都是在2004 年7 月9 日(星期五)簽發的。" } }, { "doc_id": 103, "seg_id": 9, "translation": { "en": "On 12 July 2004, the only employee of Shun Bo went to work as usual but discovered that everything in the company had been moved away. The suppliers were informed on the same day that none of the said cheques was honoured. And some of the suppliers were yet to collect the cheques when the office of Shun Bo was vacated.", "zh-HK": "2004 年7 月12 日當信寶的唯一職員上班的時候，發覺公司所有的物品全被搬空。同日，供應商獲悉支付貨款的支票全數不能兌現。亦有部分供應商在信寶人去樓空前未及拿到支付貨款的支票。" } }, { "doc_id": 103, "seg_id": 10, "translation": { "en": "The Applicant was subsequently arrested. He made a cautioned statement in which he admitted he had signed blank cheques on a number of occasions and confirmed that all the dishonoured cheques were issued by Cheung and him. He also said in his statement that he and Cheung had been friends for years and that it was by reason of the trust he had in Cheung that he agreed to assist one Yuan Wan Hoi (袁‍雲‍海), a friend of Cheung’s, in setting up Shun Bo and the bank accounts for a remuneration of $5,000 per month.", "zh-HK": "申請人在被捕後，於警誡下作出供詞。他承認多次簽發空白的支票，亦確認所有不能兌現的支票都是經由他和張‍東‍華簽發的。申請人在供詞中同時稱與張‍東‍華是多年朋友，因為相信他，故此同意以每月5,000 元的酬勞，協助張‍東‍華的朋友袁‍雲‍海開設信寶和相關的銀行賬戶。" } }, { "doc_id": 103, "seg_id": 11, "translation": { "en": "Sentence by the trial judge", "zh-HK": "原審法官的判刑" } }, { "doc_id": 103, "seg_id": 12, "translation": { "en": "The Applicant, now aged 45, is a married man with two daughters who have come of age. He has a clear record.", "zh-HK": "申請人現年45 歲，已婚，有兩名已成年的女兒。他過往沒有干犯刑事罪行的記錄。" } }, { "doc_id": 103, "seg_id": 13, "translation": { "en": "When passing sentence, the trial judge pointed out that the present case involved a premeditated fraudulent scheme and that the circumstances of the offence were very serious. The judge took the view that the value of the goods obtained was an important sentencing consideration which would be indicative of the length of sentence. Having considered the sentencing guidelines in R. v. Trevor Clark (1998) 2 Cr App R 137 and Secretary for Justice v. Wong Kay Din, CAAR 7/1998 which laid down tariffs on the basis of the amount defrauded, and taking into account the mitigating circumstances submitted on behalf of the Applicant, the trial judge sentenced the Applicant to 6 years’ imprisonment.", "zh-HK": "原審法官在判刑時，指出本案是一宗處心積累的行騙案，情節是非常嚴重。他認為涉案貨物的價值是一個重要的量刑考慮因素，對刑期的長短可產生指標的作用。經參閱R. v. Trevor Clark (1998) 2 Cr App R 137和Secretary for Justice v. Wong Kay Din, CAAR7/1998案中所提及以行騙金額作基準的量刑指標，以及辯方提出的求情因素後，原審法官作出6 年監禁的判刑。" } }, { "doc_id": 103, "seg_id": 14, "translation": { "en": "First ground of appeal", "zh-HK": "第1項上訴申請理由" } }, { "doc_id": 103, "seg_id": 15, "translation": { "en": "The Applicant’s first ground of appeal is that the trial judge had erred in principle by applying the sentencing guidelines for cases involving a breach of trust.", "zh-HK": "申請人的首項申請理由指原審法官引用破壞誠信的判刑準則，犯了原則上的錯誤。" } }, { "doc_id": 103, "seg_id": 16, "translation": { "en": "There is no doubt that the present case is one of commercial fraud involving no breach of trust. It is also true that the two cases of R. v. Trevor Clark and Secretary for Justice v. Wong Kay Din referred to by the trial judge, as well as HKSAR v. Cheung Mee Kiu [2006] 4 HKLRD 776, a case cited by Mr. Cheung at this hearing, are all cases involving a breach of trust. However, the reason why the trial judge referred to those cases was that he thought those cases showed that the value of the property obtained could be a guide to sentencing. The trial judge also pointed out that the Applicant was no less culpable than an offender in an ordinary breach of trust case because he conspired with others to perpetrate a well-planned fraud that involved setting up a company for the purpose of gaining the trust of the suppliers and then deceiving them.", "zh-HK": "無疑本案在本質上是一宗商業騙案，當中不涉破壞誠信。此外，原審法官參考的兩宗案例——R. v. Trevor Clark和Secretary for Justice v. Wong Kay Din，以及張‍大律師在本申請中援引的HKSAR v. Cheung Mee Kiu [2006] 4 HKLRD 776案，都是一些涉及破壞誠信的案件。然而原審法官之所以提及這些案例，是因為他認為這些案例顯示涉案財物的價值可作為量刑的指標。原審法官亦指出申請人及串謀者成立公司，有計劃地去騙取供應商的信任，從而進行詐騙，因此就刑責而言，不低於一般破壞誠信的罪行。" } }, { "doc_id": 103, "seg_id": 17, "translation": { "en": "In his Reasons for Sentence, the trial judge further stated that, regardless of whether the cases he cited were appropriate sentencing guidelines for the present case, the value of the goods dishonestly obtained should be an important sentencing consideration in the present circumstances, which involved a substantial amount of over $7 million.", "zh-HK": "原審法官在判刑理由書中進一步說明，不管他所提及的案例是否適合作為量刑指標，單就本案的情況而言，被騙取的貨物的金額應該是一個重要的考慮因素，因為700 多萬元是相當大的數目。" } }, { "doc_id": 103, "seg_id": 18, "translation": { "en": "In our view, the trial judge clearly knew that the present case did not involve any breach of trust, and he adopted R. v. Trevor Clark and Secretary for Justice v. Wong Kay Din only to the extent of taking the value of the property obtained by deception as indicative of the sentence. In this respect, he had not erred in principle. As the trial judge emphasized, this was a premeditated and organized commercial fraud which took place for nearly 10 months and resulted in the loss of goods with a total value in excess of $7 million. This was a very serious offence. One can never overstate the harm that commercial frauds of this nature can inflict upon Hong Kong’s status as an international commercial and trade centre. These are all aggravating factors.", "zh-HK": "本庭認為原審法官是清楚知道本案不涉破壞誠信。本庭認為他採納R. v. Trevor Clark和Secretary for Justice v. Wong Kay Din案的做法，祇是以被騙財物的價值作為量刑的參考指標，這點並沒有犯上原則上的錯誤。如原審法官所強調，這是一宗經過部署、有計劃的商業詐騙，當中歷時近10 個月，而且涉及的貨物損失超過700 萬元，是很嚴重的案件。而且這些商業騙案對作為國際商業和貿易中心的香港會造成莫大的損害。這些都加重了本案的嚴重性。" } }, { "doc_id": 103, "seg_id": 19, "translation": { "en": "Mr. Chan cited the judgment of the Court of Appeal in R. v. Chow Tat Ming [1997] HKLRD 353 to support his contention that the sentence imposed by the trial judge was excessive. The defendant in that case was charged with 10 counts of obtaining property by deception and 5 counts of theft. The particulars alleged that he obtained, within one month, jewellery with a total value of over $6.8 million by deception, namely by using cheques which were subsequently dishonoured. The Court of Appeal held that, in view of the value of the lost property and the defendant’s culpability, a starting point of 5 years’ imprisonment was appropriate.", "zh-HK": "陳‍大律師向本庭提出上訴法庭在R. v. Chow Tat Ming [1997] HKLRD 353案的判決，以支持他指原審法官量刑過重的立場。在該案中，被告人被控10 項以欺騙手段取得財物罪和5 項盜竊罪。控罪指他在一個月間以不能兌現的支票騙取價值逾680 萬元的珠寶。上訴法庭認為按財物損失金額和被告人的刑責，以5 年作為量刑起點是合適的。" } }, { "doc_id": 103, "seg_id": 20, "translation": { "en": "On the facts in the present case, including the number of suppliers involved and the value of the goods lost, we consider that a term of 6 years’ imprisonment upon conviction after trial is on the high side but not manifestly excessive.", "zh-HK": "本庭認為以本案的情況而言，包括所涉供應商的數目和損失貨物的價值，經審訊後判以6 年監禁雖是偏高，但並非明顯過高。" } }, { "doc_id": 103, "seg_id": 21, "translation": { "en": "The first ground of appeal therefore fails.", "zh-HK": "首項申請理由不成立。" } }, { "doc_id": 103, "seg_id": 22, "translation": { "en": "Second ground of appeal", "zh-HK": "第2項上訴申請理由" } }, { "doc_id": 103, "seg_id": 23, "translation": { "en": "The Applicant’s second ground of appeal is that, when passing sentence, the trial judge had not duly considered that fact that the Applicant had agreed to a substantial body of facts, thereby sparing the prosecution the need to adduce evidence and saving time.", "zh-HK": "申請人的第2 項申請理由指原審法官在判刑時，沒有適當考慮申請人在審訊時同意了大量案情，從而節省控方舉證的時間。" } }, { "doc_id": 103, "seg_id": 24, "translation": { "en": "It is true that at trial the Applicant agreed to a large part of the suppliers’ evidence and did not dispute the voluntariness of his cautioned statement, and this obviated the need for the suppliers to testify in court and therefore saved the court’s time. However, whether this constitutes a mitigating factor will depend on circumstances of the particular case: see HKSAR v. Lam Tsz Leung [2006] 2 HKC 295, at 316, paragraph 49.", "zh-HK": "申請人在審訊時確是同意了大部分供應商的證人供詞，亦沒有爭議他在警誡下作出的供詞是自願作出。誠然，申請人此舉省卻了這些供應商出庭作供的麻煩，亦節省了審訊的時間。然而，這是否構成減刑因素，須視乎個別案件而言：HKSAR v. Lam Tsz Leung [2006] 2 HKC 295，316第 49 段。" } }, { "doc_id": 103, "seg_id": 25, "translation": { "en": "In the present case, the trial judge made it clear for sentencing purposes that he had taken into account that much of the evidence before him had been agreed by both the prosecution and the defence, but in view of the gravity of the case and the amount involved, he held that a sentence of 6 years’ imprisonment should be imposed. We see nothing improper in his reasoning and conclusion in this respect.", "zh-HK": "在本案中，原審法官在量刑時明確表示他已考慮到案中很多證供是透過控辯兩方同意而呈堂，但有鑑於案件嚴重和涉案金額，他認為應判予6 年監禁。本庭認為原審法官在這方面的考慮和結論，並無不妥。" } }, { "doc_id": 103, "seg_id": 26, "translation": { "en": "The second ground of appeal also fails.", "zh-HK": "第 2 項申請理由不成立。" } }, { "doc_id": 103, "seg_id": 27, "translation": { "en": "Third ground of appeal", "zh-HK": "第3項上訴申請理由" } }, { "doc_id": 103, "seg_id": 28, "translation": { "en": "The third ground of appeal is that the Applicant was not the mastermind and his participation was confined to setting up Shun Bo and signing blank cheques at the initial stage. He had not contacted the suppliers to deceive them.", "zh-HK": "第 3 項申請理由指申請人並非主謀，他祇參予前期成立信寶和簽發空白支票的工作，而沒有與供應商聯絡，騙取貨品。" } }, { "doc_id": 103, "seg_id": 29, "translation": { "en": "This ground was put forward as a mitigating factor at trial but was not accepted by the trial judge. We consider that the Applicant was an indispensable part of and played a significant role in the fraudulent scheme. Whether he was the mastermind had no relevance to his culpability.", "zh-HK": "申請人這項減刑理由，在審訊時已提及，但不為原審法官所接納。本庭認為，申請人是整個騙局中不可或缺的一員，扮演著重要的角色。至於他是否主謀，對他的刑責沒有重大的影響。" } }, { "doc_id": 103, "seg_id": 30, "translation": { "en": "This ground of appeal fails.", "zh-HK": "這項申請理由不成立。" } }, { "doc_id": 103, "seg_id": 31, "translation": { "en": "Fourth ground of appeal", "zh-HK": "第4項上訴申請理由" } }, { "doc_id": 103, "seg_id": 32, "translation": { "en": "The fourth ground of appeal is that the trial judge, having overlooked the point that the Applicant had been manipulated into setting up Shun Bo and his name had subsequently been borrowed by the conspirators to perpetrate the fraud, mistakenly imputed the whole scheme to the Applicant.", "zh-HK": "第 4 項申請理由指原審法官忽略了申請人是被人利用來開設信寶，以及串謀者其後借用申請人的名字進行詐騙，因此錯誤地把整個騙局歸咎申請人。" } }, { "doc_id": 103, "seg_id": 33, "translation": { "en": "However, the Applicant did not give evidence at trial. The relevant record of interview showed that he had provided exculpatory explanations, including that he had misplaced his trust on Cheung, but these explanations were not accepted by the trial judge. As a matter of fact, in convicting the Applicant, the trial judge found that the Applicant was well aware from the very beginning that Shun Bo was set up for the purpose of perpetrating fraud. The trial judge also found that the conspirators’ subsequent use of the names of the Applicant and Cheung in contacting suppliers and purchasing their goods was part and parcel of the whole fraudulent scheme. For these reasons, the fact that the Applicant had not directly contacted suppliers did not reduce the Applicant’s culpability or constitute a mitigating factor.", "zh-HK": "然而，申請人在審訊時沒有作供。他在會面記錄中為自己開脫而作的解釋，包括他誤信張‍東‍華的說法，亦不獲原審法官信納。事實上，原審法官在定罪時，裁定申請人自始便知悉成立信寶的目的是為進行詐騙。至於後期其他串謀者以申請人和張‍東‍華的身份與供應商聯系和洽購貨物，原審法官裁定這是整個詐騙的一部分。是故，申請人沒有直接接觸供應商不構成減輕刑責或減刑的原因。" } }, { "doc_id": 103, "seg_id": 34, "translation": { "en": "The fourth ground of appeal also fails.", "zh-HK": "第 4 項申請理由亦不成立。" } }, { "doc_id": 103, "seg_id": 35, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 103, "seg_id": 36, "translation": { "en": "For the above reasons, we dismiss the Applicant’s application for leave to appeal against sentence.", "zh-HK": "基於上述理由，本庭拒絕申請人就判刑方面的上訴許可申請。" } }, { "doc_id": 103, "seg_id": 37, "translation": { "en": "Mr. Patrick Cheung, Deputy Principal Government Counsel, and Miss Sally Yam, Senior Government Counsel, for the HKSAR.", "zh-HK": "控方：由律政司副首席政府律師張維新及高級政府律師任可代表香港特別行政區。" } }, { "doc_id": 103, "seg_id": 38, "translation": { "en": "Mr. Chan Siu Ming, instructed by Yaddy Cheung & Co., for the Applicant.", "zh-HK": "辯方：由張雅棣律師行轉聘陳銚明大律師代表申請人。" } }, { "doc_id": 104, "seg_id": 1, "translation": { "en": "The applicant was indicted of one count of trafficking in a dangerous drug contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 of the Laws of Hong Kong. The applicant denied the charge and was convicted on 7 June 2013 by a majority of 5 to 2 after a jury trial before Deputy High Court Judge Yau (as he then was) (the trial judge) in the Court of First Instance. On 26 July 2013, she was sentenced by the trial judge to 19 years and 9 months’ imprisonment.", "zh-HK": "申請人被控一項販運危險藥物罪，違反香港法例第134章《危險藥物條例》第4(1)(a) 及 (3) 條。申請人否認控罪並在高等法院原訟法庭暫委法官邱智立（原審法官）會同陪審團席前受審。2013 年6月7日，經審訊後，申請人被陪審團以5：2的大比數裁定罪名成立。2013年7 月26日，原審法官判處申請人入獄19年9個月。" } }, { "doc_id": 104, "seg_id": 2, "translation": { "en": "On 1 August 2013, the applicant filed an application for leave to appeal against conviction. This Court refused the application after a hearing on 28 January 2015. The reasons for judgment are as follows.", "zh-HK": "申請人不服定罪，在2013年8月1日提出上訴許可申請要求獲准就定罪上訴。2015年1月28日，經聆訊後，本庭拒絕申請，現頒下判案理由書。" } }, { "doc_id": 104, "seg_id": 3, "translation": { "en": "Prosecution Case", "zh-HK": "控方案情" } }, { "doc_id": 104, "seg_id": 4, "translation": { "en": "The Prosecution alleged that on 10 July 2012, at the Hong Kong International Airport, Chek Lap Kok, the New Territories, Hong Kong, the applicant unlawfully trafficked in 1,377.40 grammes of a mixture containing 543.94 grammes of heroin hydrochloride. The Prosecution further alleged that the applicant knowingly brought a piece of luggage concealing 7 packets of dangerous drugs into the territory. The Prosecution called nine prosecution witnesses to testify at trial and the prosecution case can be summarized as follows.", "zh-HK": "控罪指申請人於2012年7月10日，在香港新界赤鱲角香港國際機場，非法販運危險藥物，即內含543.94克海洛英鹽酸鹽的1,377.40克混合劑。控方指申請人是在知情下攜帶藏有七包危險藥物的行李入境。審訊時，控方傳召九名證人作證。控方案情可扼述如下。" } }, { "doc_id": 104, "seg_id": 5, "translation": { "en": "On 10 July 2012, the applicant arrived at the Hong Kong International Airport onboard Dragonair Flight KA111 from Dhaka, the capital city of Bangladesh. She was going to take a connecting Dragonair Flight KA864 to fly on to Pudong, Shanghai the same day. Upon reaching transfer area E2 on Level 5 of the airport at around 8:45 am the same day, the applicant was intercepted for investigation by Customs Officer 6275 Choi Yee Man, the 1st Prosecution Witness (PW1). At that time, the applicant was carrying a snake skin pattern handbag and the suitcase she checked-in at Dhaka was retrieved from baggage conveyor belt no. 6 in the Customs Immigration Hall in the presence of PW1 and Senior Customs Officer 8928 Shum Tse Keung.", "zh-HK": "2012年7月10日，申請人乘坐港龍航空公司KA111航班由孟加拉首都達卡飛抵香港國際機場，並會即日轉乘另一港龍航空公司KA864航班，飛往上海浦東。同日早上約八時四十五分，申請人抵達機場5樓E2轉機處時，被海關關員6275蔡倚雯（控方第一證人）截停和調查。當時申請人手挽一個蛇紋手袋。申請人在控方第一證人及高級海關關員8928岑子強陪同下，在海關入境大堂6 號行李帶提取一個她在達卡寄艙的行李箱。" } }, { "doc_id": 104, "seg_id": 6, "translation": { "en": "Thereafter, PW1 and Senior Customs Officer 8928 took the applicant and the suitcase to a search room. After enquiries, PW1 learnt that the applicant went to Dhaka for travelling. The snake skin pattern handbag was bought in there. The clothes insides her suitcase was also bought in there. PW1 then examined the applicant’s snake skin pattern handbag and her suitcase with an X-ray detector and found them suspicious. She opened the compartments of the snake skin pattern handbag and found a brown coloured bag inside. She cut the bag open with a cutter for about 1.5 cm, white powder could be seen therein. PW1 then ran a rapid drug test on the white powder and the result was positive for heroin hydrochloride. The applicant was therefore arrested. The applicant said under caution that “these things are not mine, a friend asked me to bring them back there for him.” PW1 then handed the snake skin pattern handbag and the suitcase to another Customs Officer 99104 Lau Yiu Ming, the 3rd Prosecution Witness (PW3).", "zh-HK": "之後，控方第一證人、申請人和高級海關關員8928把申請人和該行李箱帶入一間搜查室。控方第一證人在查問下得悉申請人去達卡旅遊；在當地買了該蛇紋手袋；她的行李箱內載有在當地買的衣服。其後，控方第一證人以X光檢查申請人的蛇紋手袋和行李箱，發現有可疑。她把蛇紋手袋的分隔層打開，發現內有一個啡色包，她用𠝹刀𠝹開大約1.5厘米，看見裡面有白色粉末。控方第一證人把那些白色粉末作毒品快速測試，測試顯示對海洛英鹽酸鹽有陽性反應；於是拘捕申請人。申請人在警誡下說：「這些東西不是我的，是我的朋友叫我幫他帶回去的。」其後，控方第一證人把蛇紋手袋和行李箱交了給另一到海關關員99104劉耀明（控方第三證人）。" } }, { "doc_id": 104, "seg_id": 7, "translation": { "en": "At 1:30 pm the same day, PW3 handed the snake skin pattern handbag and the suitcase to Customs Officer 9908 Wong Yiu Kwong, the 2nd Prosecution Witness (PW2), for handling. PW2 found that there were two compartments in the snake skin pattern handbag. In each compartment, there was a packet of powdery substance wrapped in carbon paper that was fastened with adhesive tapes. When he examined the suitcase, he found 3 books inside. He then cut open the front and back covers of the books with a cutter exposing in each book a bag of black carbon paper wrapped with plastic sheet containing powder therein. PW3 also found two handbags inside the suitcase. Inside each handbag, there was a packet of suspected dangerous drug wrapped in black carbon paper. PW2 then ran a rapid drug test on the powder found inside the snake skin pattern handbag and the 3 books and the suspected dangerous drugs found inside the suitcase. The test result was positive for cocaine.", "zh-HK": "同日下午1時半，控方第三證人把蛇紋手袋和行李箱交給海關關員9908黃耀光（控方第二證人）處理。後者發現蛇紋手袋有兩個分隔層，各有一包用膠紙綑住的碳紙，內有粉狀物體。當他檢查行李箱時，他發現內有三本書。他用𠝹刀𠝹開書的封面和封底，顯露每本書裡都有一個以膠紙包住黑色碳紙的袋，內有粉末。控方第三證人又發現行李箱內有兩個手袋，內裡各有一包黑碳紙包裝的懷疑毒品。控方第二證人把蛇紋手袋及三本書內發現的粉末，和行李箱內發現的懷疑毒品作毒品快速測試，測試顯示對可卡因呈陽性反應。" } }, { "doc_id": 104, "seg_id": 8, "translation": { "en": "PW2 put the 7 packets of suspected dangerous drugs found upon search into exhibit bags and sealed them respectively, assigning them with Customs exhibit serial number and signed. However, he did not ask the applicant to countersign on the exhibit bags.", "zh-HK": "控方第二證人把搜獲的7包懷疑危險藥物放進證物袋，把它們封口，寫上海關證物編號並簽名，但他沒有要求申請人在證物袋上加簽。" } }, { "doc_id": 104, "seg_id": 9, "translation": { "en": "Between 1 and 2 am on 11 July 2012, PW2 handed the aforementioned 7 exhibit bags to Customs Officer 6125 Tsang Wai Yin, the 6th Prosecution Witness (PW6) for custody. At 7:15 am the same day, PW6 handed the 7 exhibit bags to Customs Officer 89119 Cheung Wai Kwong, the 7th Prosecution Witness (PW7). On the same day, PW7 handed the exhibits to Customs Officer 599 Tsang Koon Hei, the 8th Prosecution Witness (PW8) at the car park of Ho Man Tin Government Offices. PW8 then submitted the exhibits to the Government Chemist Chan Tai Wai, the 9th Prosecution Witness (PW9) for analysis. According to the findings of PW9, the suspected dangerous drugs were the dangerous drugs particularized in the charge sheet.", "zh-HK": "2012年7月11日凌晨1至2時，控方第二證人把上述7個證物袋交給海關關員6125曾偉賢（控方第六證人）看管。同日早上7時15分，控方第六證人將那七個證物袋交給關員89119張偉光(控方第七證人), 後者在同日，在何文田政府合署停車場將證物轉載交關員599曾冠僖(控方第八證人)。控方第八證人再將證物交給政府化驗師陳大偉（控方第九證人）進行化驗。控方第九證人證實那些懷疑毒品為控罪書上所述的危險藥物。" } }, { "doc_id": 104, "seg_id": 10, "translation": { "en": "All prosecution witnesses testified that in the course of handling the dangerous drugs in question, the exhibits had not been unlawfully tampered with.", "zh-HK": "各控方證人供述他們處理涉案危險藥物的過程中，均沒有非法干擾證物。" } }, { "doc_id": 104, "seg_id": 11, "translation": { "en": "No fingerprint of the applicant was found on the packaging of the dangerous drugs in question.", "zh-HK": "涉案危險藥物的包裝上沒有申請人的指紋。" } }, { "doc_id": 104, "seg_id": 12, "translation": { "en": "The retail price of the dangerous drugs in question was about HK$1,016,000.00 as at July 2012.", "zh-HK": "涉案毒品2012年7月的零售價約港幣1,016,000.00 元。" } }, { "doc_id": 104, "seg_id": 13, "translation": { "en": "Video Recorded Interview", "zh-HK": "錄影會面紀錄" } }, { "doc_id": 104, "seg_id": 14, "translation": { "en": "From 11:07 pm on 10 July 2012 to 1:09 am the next day, the applicant voluntarily took part in a video recorded interview under caution conducted by the Customs Officers with the assistance of a Putonghua interpreter. The video recorded interview was produced in court as prosecution exhibit P59. The applicant’s case can be summarized as follows.", "zh-HK": "2012年7月10日晚上11時7分至翌日零晨1時9分，申請人自願地在警誡下接受海關人員的錄影會見，過程有普通話傳譯協助。錄影會面記錄呈堂為控方證物P59。申請人的說法可簡述如下。" } }, { "doc_id": 104, "seg_id": 15, "translation": { "en": "The applicant resided in Gangjiawan, De’an County, Jiujiang City, Jiangxi Province. She was single. She studied pharmaceutical marketing in a post-secondary school and had worked as a clerk. She arrived in Dhaka on 2 July 2012 and had stayed there for 9 days. She went to Dhaka to collect samples for a black friend “Prince”. According to the applicant, Prince was engaged in foreign trade exporting merchandises such as clothes, shoes and accessories. She agreed to go to Bangladesh on condition that Prince would pay the expenditures incurred in the trip. She asked Prince to pay her RMB3,000.00 as wages but Prince deposited USD3,984.00 in her account. The applicant sent her passport to Prince so that Prince could apply for a Bangladesh Visa on her behalf. Prince also gave her USD200.00 and RMB400.00 for the trip. When she arrived in Bangladesh, no one came to the airport to pick her up. She could only rent a room in a guesthouse. On the next day, she received a phone call from a female called “Moon” whom Prince told her was the girlfriend of his elder brother.", "zh-HK": "申請人家住江西省九江市德安縣港家灣，未婚，在大專時修讀醫藥營銷，曾任職文員。她在2012年7月2日抵達達卡，逗留九日，目的是替一名黑人朋友“Prince”到達卡拿取樣品。申請人指Prince從事外貿生意，出口衣服、鞋、首飾等貨品。她答應Prince前往孟加拉，而行程所需費用會由Prince支付。申請人要求Prince給她人民幣3,000.00元工資，但Prince把美金3,984.00元存入申請人的戶口。申請人把她的護照寄給Prince代辦孟加拉簽證。就是次旅程，Prince給她美金200.00元和人民幣400.00元。當她抵達孟加拉，沒有人來接機，她只好租住一間賓館。翌日，一名叫“Moon”的女子致電申請人。Prince告訴申請人Moon是他哥哥的女朋友。" } }, { "doc_id": 104, "seg_id": 16, "translation": { "en": "At about 9 pm on 10 July 2012, Moon brought over a snake skin pattern handbag and a suitcase to help the applicant pack her personal belongings together with the samples. Subsequently, Moon led the applicant to hail a taxi for the airport. The applicant had checked the suitcase in the toilet of the airport. She had also flipped the books inside the suitcase and touched the snake skin pattern handbag. She did not find anything. The applicant insisted that she did not know the snake skin pattern handbag and the suitcase were concealed with the dangerous drugs in question.", "zh-HK": "2012年7月10日晚上約9時，Moon帶同一個蛇紋手袋和行李箱協助申請人收拾行李並把申請人的個人物品和樣品一起收拾。然後，Moon帶申請人乘坐的士去機場。申請人在機場的洗手間有檢查過行李箱，亦有翻過箱內的書和觸摸過蛇紋手袋，但卻沒有甚麼發現。申請人力稱她不知道蛇紋手袋和行李箱內藏有涉案毒品。" } }, { "doc_id": 104, "seg_id": 17, "translation": { "en": "Chain of evidence of the dangerous drugs in question", "zh-HK": "涉案毒品證據的連續性" } }, { "doc_id": 104, "seg_id": 18, "translation": { "en": "There were discrepancies in the evidence of PW1 and PW2 in two regards. First, PW1 said she had cut open the brown plastic bag found inside the snake skin pattern handbag and took out the powder for a rapid drug test. However, PW2 said that his recollection was that the brown plastic bag was not cut open. Second, the rapid drug test run by PW1 on the dangerous drugs found in the snake skin pattern handbag showed a positive result for heroin. But the result of the rapid drug test run by PW2 was positive for cocaine. Mr Lau, counsel for the applicant at trial, therefore objected to the production of the drugs in court on the grounds that the course of seizing the dangerous drugs, that is the chain of evidence, and the nature of the dangerous drugs were in dispute. As the Prosecution had failed to prove that the dangerous drugs in question were seized from the applicant’s luggage, the defence objected to the production of the dangerous drugs in court. Mr. Lau further contended that the trial judge should make a ruling on the admissibility of the dangerous drugs. Instead, the trial judge formed the view that the issue was one of fact-finding rather than legal ruling and hence should be left for the jury to decide. As such, the drugs in question and relevant evidence were marked as provisional exhibits by the trial judge.", "zh-HK": "控方第一和第二證人的證供上有兩方面的分歧。第一，控方第一證人指她有「𠝹開」蛇紋手袋裡面的啡色膠袋拿出粉末作快速毒品測試。控方第二證人則表示他記憶中該啡色膠袋沒有被「𠝹開」。第二，控方第一證人為蛇紋手袋內發現的危險藥物進行快速測試，結果是海洛英呈陽性反應；但控方第二證人進行的快速測試，結果則是可卡因呈陽性反應。因為這些分歧，原審時代表申請人的劉大律師反對涉案的毒品呈堂。劉大律師指毒品的檢取過程，即連鎖性，和毒品的性質有爭議，而控方未能證明有關危險藥物就是從申請人的行李所檢取的，所以他反對控方把危險藥物呈堂。劉大律師認為原審法官應就毒品可否呈堂作出裁決。原審法官卻認為這是一個事實的裁定，並非法律問題，理應交由陪審團定奪，原審法官並把涉案的毒品和相關證據列為臨時證物。" } }, { "doc_id": 104, "seg_id": 19, "translation": { "en": "When the court admitted all provisional exhibits into evidence, Mr Lau made an application for no case to answer. In his ruling, the trial judge pointed out that although the handling of the dangerous drugs in question and their nature might have been questioned, the evidence in these regards was not so flimsy that no reasonable jury would convict the applicant. The court therefore ruled that a prima facie case was established. As regards the finding of facts, the court would leave them for the jury to consider and decide.", "zh-HK": "當原審法官批准所有列作臨時證物可作證物呈堂後，劉大律師向法庭提出毋無需答辯申請。原審法官指本案涉及的危險藥物的交收過程和它們本身的性質雖受到質疑，但這兩方面的證供並非薄弱致任何一個合理的陪審團也不會裁定申請人罪成，所以裁定表面證據成立，而有關這些事實的裁斷，則交由陪審團考慮及決定。" } }, { "doc_id": 104, "seg_id": 20, "translation": { "en": "Defence Case", "zh-HK": "辯方案情" } }, { "doc_id": 104, "seg_id": 21, "translation": { "en": "The applicant elected not to give evidence nor call any defence witness. The stance of the applicant was that the explanation she had given in the record of interview already showed that she had no knowledge that dangerous drugs were concealed in the luggage.", "zh-HK": "申請人選擇不作供，也沒有傳召任何辯方證人。申請人的立場是她在會面記錄作出的辯解顯示她對於行李內暗藏危險藥物一事全不知情。" } }, { "doc_id": 104, "seg_id": 22, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 104, "seg_id": 23, "translation": { "en": "Mr Philip Wong, counsel for the applicant, has advanced four grounds of appeal. The first and the second grounds assert that the trial judge was in error in declining to rule on the admissibility of the dangerous drugs in question despite having recognized the chain of evidence concerning the course of seizing the dangerous drugs in question was in dispute. The trial judge was further erred in mistaking that the issue was only concerned with a finding of facts and hence a civil standard of proof was used and he ruled that there was a prima facie case upon conclusion of the prosecution case.", "zh-HK": "申請人的代表大律師黃志偉提出四項上訴理由，第一和第二上訴理由指，雖然原審法官確認申請人對於相關毒品可否呈堂有爭議，即涉案毒品之檢取過程的連鎖性有否受干擾，但他錯誤地拒絕作出裁斷，更誤認這個爭議只涉及一個事實裁定，而繼而採用民事舉證標準處理及在控方舉證完畢後，裁定在這方面表面證據成立。" } }, { "doc_id": 104, "seg_id": 24, "translation": { "en": "The third ground of appeal asserts that the trial judge had erred in asking the jury to resolve the discrepancies between PW1 and PW2’s evidence by speculation without directing or pointing out to the jury that the dangerous drugs in question might have been tampered with in the course of seizure.", "zh-HK": "第三上訴理由指，原審法官錯誤地要求陪審團以猜測方式解決控方第一及第二證人證供方面的分歧；但沒有引導陪審團及向他們指出，在毒品檢取過程中，相關毒品有可能受到干擾。" } }, { "doc_id": 104, "seg_id": 25, "translation": { "en": "The fourth ground of appeal asserts that the trial judge had failed to follow the case of HKSAR v Lai Wing Huen [2014] CHKEC 40 in that sufficient directions must be given to the jury on the issue of knowledge on the part of the defendant of the dangerous drugs in question.", "zh-HK": "第四上訴理由指，原審法官沒有依從香港特別行政區 訴 賴穎萱 [2014] CHKEC 40一案中就一名被告人是否在知情下販運危險藥物這議題向陪審團作出足夠引導。" } }, { "doc_id": 104, "seg_id": 26, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 104, "seg_id": 27, "translation": { "en": "This Court shall first deal with the first and second grounds of appeal.", "zh-HK": "本庭首先處理第一及第二個上訴理由。" } }, { "doc_id": 104, "seg_id": 28, "translation": { "en": "In his submission, Mr Wong said that the trial judge should have adopted the special procedure to decide whether the dangerous drugs in question could be admitted as prosecution exhibits in view of the serious discrepancies between PW1 and PW2’s evidence. And they could only be admitted as exhibits if the court was satisfied of the chain of evidence beyond a reasonable doubt. However, the trial judge only ruled on a balance of probability in mid-way submission that a prima facie case was established, leaving to the jury to decide whether the dangerous drugs in question could be accepted as evidence. Mr. Wong contended that the trial judge was in error since whether the dangerous drugs in question could be admitted as prosecution evidence was a legal issue rather than a factual one.", "zh-HK": "黃大律師陳詞說，因為控方第一和第二證人的證供有嚴重分歧，原審法官應該採取特別程序處理涉案毒品是否可以呈堂為控方證物，並且必須在毫無合理疑點的情況下，信納涉案毒品證據的連續性才可以接納它們為呈堂證物；但原審法官只是在中段陳詞時以相對可能性的衡量標准裁定表面證據成立，然後把涉案毒品是否可接納為證據交給陪審團決定。黃大律師認為原審法官犯了錯誤；原因是涉案毒品可否呈堂為控方證據是法律問題，而不是事實的爭議。" } }, { "doc_id": 104, "seg_id": 29, "translation": { "en": "This Court is of the view that the trial judge was correct in dealing with the admissibility of the dangerous drugs in question. The chain of evidence on the course of seizure of the dangerous drugs in question and the nature of the dangerous drugs in question were both factual issues. Once the trial judge was satisfied that a prima facie case was established, the issues should be left for the jury to decide. It was utterly wrong for Mr. Wong to package a factual issue that should be decided by the jury in the guise of a legal one that should be dealt with by the trial judge to support the first and second grounds of appeal. They are rejected by this Court.", "zh-HK": "本庭認為，原審法官處理涉案毒品是否可以呈堂的做法正確。涉案毒品之檢取過程的連續性及其性質，都是事實的爭議，當原審法官信納有表面証據成立後，便應交由陪審團定奪。黃大律師把明顯是應該由陪審團決定的事實爭議包裝為原審法官應該處理的法律問題，以支持第一及第二個上訴理由的做法是完全錯誤的，本庭不接納。" } }, { "doc_id": 104, "seg_id": 30, "translation": { "en": "The third and fourth grounds of appeal are effectively complaints against the trial judge for unfairly directing the jury. This Court does not intend to repeat Mr Wong’s submissions. Having thoroughly read the directions given by the trial judge to the jury, this Court is of the view that the directions were just, fair and balanced. There was nothing in the directions that could possibly be criticised by Mr Wong.", "zh-HK": "第三及第四上訴理由其實是投訴原審法官對陪審團的指引不公。本庭不擬詳細論述黃大律師的陳詞。經細閱過原審法官向陪審團的指引後，本庭認為他的指引中肯、持平和不偏不倚，並無可以讓黃大律師詬病之處。" } }, { "doc_id": 104, "seg_id": 31, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 104, "seg_id": 32, "translation": { "en": "For the above reasons, this Court considers that none of the applicant’s grounds of appeal are substantiated. This Court finds that there is nothing unsafe about the conviction imposed against the applicant. This Court therefore refuses her application for leave to appeal.", "zh-HK": "基於上述原因，本庭認為申請人的上訴理由無一成立。對申請人被裁定罪名成立，本庭不認為有任何不穩妥之處，因此本庭拒絕其上訴許可申請。" } }, { "doc_id": 104, "seg_id": 33, "translation": { "en": "Philip Wong, instructed by Shea & Co., Damien Solicitors, for the Applicant.", "zh-HK": "答辯人：由律政司副刑事檢控專員梁卓然代表" } }, { "doc_id": 104, "seg_id": 34, "translation": { "en": "David Leung, Deputy Director of Public Prosecutions of the Department of Justice, for the Respondent", "zh-HK": "申請人：由佘英輝律師行轉聘黃志偉大律師代表" } }, { "doc_id": 105, "seg_id": 1, "translation": { "en": "Hon Yeung JA (delivering the judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案書：" } }, { "doc_id": 105, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 105, "seg_id": 3, "translation": { "en": "At around 3:30 p.m. on 1 August 2008, the Applicant Lei Tin Seng was driving a goods vehicle with registration number DS 7296 along San Fung Avenue, Sheung Shui. Upon reaching the junction of San Fung Avenue and Tsun Fu Street and when the Applicant turned left into Tsun Fu Avenue, which was an one-way road, his goods vehicle suddenly turned sideways and rammed onto the pavement on the right of Tsun Fu Street. The goods vehicle driven by the Applicant first hit and damaged the iron railings at the pavement before it hit four pedestrians, namely Yeung Yu Kwong (transliteration), Fan Yuk Mui (transliteration), Chung So Ha (transliteration) and Yung Yee Man (transliteration), on the pavement.", "zh-HK": "2008年8月1日下午約3時30分，申請人李天生駕駛貨車DS 7296號沿上水新豐路行走。當到達新豐路和巡撫街交界，申請人轉左入單程路巡撫街時，貨車突然打斜衝上巡撫街右邊的行人路上。申請人駕駛的貨車先撞毀行人路邊鐵欄，再撞到行人路上的四名路人，包括楊裕光、范玉妹、鍾素霞及容綺文。" } }, { "doc_id": 105, "seg_id": 4, "translation": { "en": "Yeung Yu Kwong was stuck between the front of the light goods vehicle and a shop. Chung So Ha and Yung Yee Man were hit by the offside front of the goods vehicle whereas Fan Yuk Mui was hit by the nearside front of the goods vehicle.", "zh-HK": "楊裕光被夾在輕型貨車車頭和一店鋪之間，鍾素霞和容綺文被貨車右車頭撞到而范玉妹則被貨車左車頭撞到。" } }, { "doc_id": 105, "seg_id": 5, "translation": { "en": "On 3 August 2008, Yeung Yu Kwong died from his injuries. His cause of death was that he had sustained multiple traumatic injuries. The other three casualties also sustained injuries. The injuries of Fan Yuk Mui and Yung Yee Man were relatively minor and they were discharged on the same day. Chung So Ha’s injuries were rather serious and she had to be hospitalized for 7 days. They all had to return for follow-up treatments but none suffered any permanent injuries/disability.", "zh-HK": "2008年8月3日，楊裕光傷重不治，死因是身體多處創傷，其餘三名傷者亦受傷。范玉妹和容綺文傷勢較輕，可即日出院。鍾素霞則傷勢較重，需留醫7天。她們都要定時回醫院覆診，但沒有蒙受任何永久性傷殘。" } }, { "doc_id": 105, "seg_id": 6, "translation": { "en": "The Applicant was arrested after the accident. Under caution, the Applicant said that when he was turning into Tsun Fu Street, he did try to step on the foot brake to decelerate but was not successful. On the contrary, the goods vehicle rammed onto the right pavement of Tsun Fu Street. Later when the police sought to interview the Applicant again, he indicated that he was afraid that the more he answered, the worse it would get, and so he chose not to answer any more questions. In view of the above incident, the Applicant was charged with an offence of ‘dangerous driving causing death’. The Applicant pleaded not guilty to the charge and came before District Judge Mary Yuen for trial.", "zh-HK": "意外後，申請人被拘捕，警誡後，申請人聲稱轉入巡撫街時，他曾嘗試踩腳掣減速，但不成功，而貨車反而向前衝上巡撫街右邊行人路。其後警員再想會見申請人時，申請人表示害怕越答越錯，故選擇不再回答問題。上述事件導致申請人被控危險駕駛引致他人死亡罪。申請人否認控罪並在區域法院源麗華法官席前接受審訊。" } }, { "doc_id": 105, "seg_id": 7, "translation": { "en": "On 30 July 2009, Judge Yuen found the Applicant guilty of the charge and sentenced him to 3 years and 6 months’ imprisonment. He was also disqualified for 3 years and had to re-take the driving licence test before he could drive any vehicle. Judge Yuen took 4 years as the starting point and deducted 6 months for his clear record and being hard working, resulting in a sentence of 3 years and 6 months’ imprisonment.", "zh-HK": "2009年7月30日，源法官裁定申請人罪名成立，並判申請人入獄3年6個月，另加停牌3年及需重考車牌試才能再次駕駛車輛。源法官以4年為量刑基準，但因申請人無犯罪記錄，並勤奮工作，故將刑期扣減6個月至3年6個月。" } }, { "doc_id": 105, "seg_id": 8, "translation": { "en": "The Applicant felt aggrieved by his conviction and sentence, and sought leave to appeal against the conviction or the sentence. In his application for leave against conviction, the Applicant was not legally represented and acted in person. But he was offered assistance by the Legal Aid Department to instruct Counsel Mr Jasper Kwan to appear for him in his application for leave to appeal against sentence. When the hearing commenced, the Applicant indicated that he would abandon his appeal against conviction. That application was then dismissed. Therefore this Court only needs to deal with his application on sentence.", "zh-HK": "申請人原不服定罪及判刑，要求獲准就定罪或判刑上訴。就定罪之申請，申請人沒有律師代表親自行事。但申請人獲法援處協助，轉聘關恆芬大律師代表，要求法庭批准他就判刑上訴。開庭時，申請人表示放棄就定罪之上訴，該申請亦遭撤銷。因此本庭只需考慮有關判刑之申請。" } }, { "doc_id": 105, "seg_id": 9, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 105, "seg_id": 10, "translation": { "en": "Mr Kwan put forward several grounds of appeal to support the application for reduction of sentence. Mr Kwan argued that the trial judge should not have sentenced the Applicant on the basis that the Applicant was reckless as to or had overlooked the safety of other road users. Mr Kwan emphasized that the trial judge’s finding that the Applicant was travelling at a speed of nearly 50 kilometres per hour was not substantiated by sufficient evidence. Mr Kwan said that the Applicant caused the accident merely because he had made a wrong estimate or was careless for a short period of time, or had at most made a wrong judgment out of a moment’s recklessness or driven his goods vehicle in a bad manner for a short period of time.", "zh-HK": "關大律師提出多點上訴理由支持減刑申請。關大律師認為原審法官不應以申請人是罔顧或漠視其他路人的安危為判刑基礎。關大律師強調原審法官指意外時，申請人之車速近每小時50公里的裁定沒有足夠證據支持。關大律師認為申請人只是錯誤估計或短暫不慎，或極其量是一時間魯莽的錯誤判斷或短暫地以不良駕駛方式駕駛其貨車，導致意外。" } }, { "doc_id": 105, "seg_id": 11, "translation": { "en": "Mr Kwan stressed that the trial judge’s finding that the Applicant was travelling at a speed much higher that 30 kilometres per hour prior to the accident was incorrect. Mr Kwan said that although PW1 and PW2 alleged that the speed of the Applicant’s vehicle was very high and was over 50 kilometres per hour, they made their estimates on the Applicant’s speed in a spilt of a second and therefore could be inaccurate. Mr Kwan emphasized that it had been suggested by a witness (witnesses) that the Applicant’s speed was only about 20 to 30 kilometres per hour, which was not far from the reasonable speed of 20 kilometres per hour as provided by one of the witnesses, namely the driving examiner.", "zh-HK": "關大律師強調原審法官指碰撞前申請人車速遠高於時速30公里的裁決不正確。關大律師認為雖然PW1及PW2指申請人的車速很高, 超過時速50公里，但他們是在電光火石間對申請人的車速作出估計，故可能會有偏差。關大律師強調有證人指申請人的車速只是約每小時20至30公里，而該速度和證人之一，考牌主任所指的20公里合理時速相差不遠。" } }, { "doc_id": 105, "seg_id": 12, "translation": { "en": "Mr Kwan also emphasized that the Applicant was travelling at a speed of 20 to 30 kilometres per hour when he was crossing the white lines before the traffic lights at the junction of San Fung Avenue and Tsun Fu Street. When he changed to the slow lane on San Fung Avenue, he even decelerated. The accident happened merely because the Applicant accelerated too soon and could not control the steering of his goods vehicle.", "zh-HK": "關大律師亦強調申請人在新豐路與巡撫街的交通燈白界線時，時速只是20至30公里，而在新豐路轉入慢線時更有減速，意外只是因申請人過早加速，未能控制貨車的定向做成。" } }, { "doc_id": 105, "seg_id": 13, "translation": { "en": "Mr Kwan submitted that considering the incident on the basis of the matters mentioned above, with respect to the yardsticks laid down in R v Cooksley [2003] 3 All ER 40, the culpability of the Applicant was at most in the middle of the scale. Therefore the starting point of 4 years was manifestly excessive. Mr Kwan emphasized that there was no additional aggravating factors in the present case but the sentence was higher than other cases of its type.", "zh-HK": "關大律師認為以上述基礎來考慮事件，並根據R v Cooksley [2003] 3 All ER 40案件列出之標準，申請人的刑責最多只是中度，因此四年的量刑基準屬明顯過高。關大律師強調本案並沒有額外加重罪責因素，但判刑卻較同類案件為重。" } }, { "doc_id": 105, "seg_id": 14, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 105, "seg_id": 15, "translation": { "en": "The undisputed evidence shows that when the Applicant’s goods vehicle was turning left into Tsun Fu Street, it suddenly moved sideways and rammed onto the right pavement, causing death and injuries to a total of four pedestrians. From the injuries of the casualties and the position of the light goods vehicle after the accident, it can be concluded that the impact was not insignificant.", "zh-HK": "無爭議的證據顯示，申請人駕駛之貨車左轉入巡撫街時，突然打斜衝上右邊行人路撞死及撞傷共四名途人。從死傷者的傷勢及輕型貨車在意外後的位置，可以得出的結論是衝撞力度不輕。" } }, { "doc_id": 105, "seg_id": 16, "translation": { "en": "In accordance with the evidence of the witnesses, the trial judge held that the Applicant began to accelerate when he was driving into the bend, and that he was travelling at a speed much higher than 30 kilometres per hour before the collision.", "zh-HK": "原審法官根據證人的證供裁定申請人入彎位時已開始加油，而在碰撞前的車速遠高於時速30公里。" } }, { "doc_id": 105, "seg_id": 17, "translation": { "en": "This Court agrees that the many witnesses who claimed to have eye-witnessed the accident were at different locations, made the observation at different moments, and had different estimates and feelings regarding speeds. So the accuracy of their descriptions of a vehicle’s speed on the spur of the moment was doubtful.", "zh-HK": "本庭同意聲稱目睹意外的多名證人，由於位置不同，觀察時刻有別, 加上各人對速度的評估，感受都不一樣，他們在一瞬間對車輛速度描述的準確性值得存疑。" } }, { "doc_id": 105, "seg_id": 18, "translation": { "en": "However this Court cannot ignore the fact that the light goods vehicle driven by the Applicant was totally out of control and rammed right onto the pavement at an angle of 45 degrees when it was turning left into Tsun Fu Street. The course of the accident, the resulting casualties and the damage to the anti-bumping railings at the edge of the pavement all showed that the speed of the Applicant’s vehicle was extremely high. The Applicant said that he tried to decelerate when he was conducting the turn but was unsuccessful. It showed that his speed at the material time was definitely too high and that his goods vehicle was not in control. Otherwise he would not have felt that there was the need to decelerate.", "zh-HK": "但本庭不能忽視申請人駕駛其輕型貨車左轉入巡撫街時，完全失控，以45度角直衝上行人路。意外發生的經過和意外所導致的人命傷亡及對行人路邊防撞攔造成的損毀都顯示申請人的車速極高。申請人表示轉彎時曾試圖減速，但不成功。這亦表示他當時的車速必然是過高，貨車不受控制，否則他不會感到有需要減速。" } }, { "doc_id": 105, "seg_id": 19, "translation": { "en": "This Court disagrees with Mr Kwan’s assertion that the accident happened simply because the Applicant accelerated too early and failed to control his vehicle. Assuming that the Applicant had merely accelerated too soon when he conducted the turn, he would not have lost control of his vehicle.", "zh-HK": "本庭不同意關大律師所指意外只是因為申請人過早加速，未能控制其車輛做成，假若申請人只是在轉彎時過早加速，他不會不能控制車輛。" } }, { "doc_id": 105, "seg_id": 20, "translation": { "en": "The Applicant conducted a sharp turn at a high speed at the peak hours at a location that had pedestrian crossings and plenty of pedestrians. As a result, his goods vehicle was out of control and rammed onto the pavement, causing the accident. His manner of driving should be condemned.", "zh-HK": "申請人是在繁忙時段在行人眾多的地點及有行人過馬路的地方以高車速急轉彎導致貨車失控，衝上行人路造成意外。申請人的駕駛方法應受遣責。" } }, { "doc_id": 105, "seg_id": 21, "translation": { "en": "This Court has repeatedly stressed that a vehicle in the hands of an irresponsible driver is an extremely lethal weapon. A driver should always be careful when he drives so as to avoid killing/causing injuries to innocent citizens.", "zh-HK": "本庭屢次強調，一輛汽車在不負責任的駕駛者手中，可以是極具殺傷力的兇器。駕駛者必需時刻緊記小心駕駛避免對無辜市民造成傷亡。" } }, { "doc_id": 105, "seg_id": 22, "translation": { "en": "The Applicant made a sharp turn at high speed in an extremely busy street, killing/causing injuries to many innocent pedestrians and great pain and distress to the families of the victims.", "zh-HK": "申請人在極為繁忙的街道高車速急轉彎，結果失控導致多名無辜路人傷亡，對傷亡者的家庭亦必然會造成極大的困擾及傷痛。" } }, { "doc_id": 105, "seg_id": 23, "translation": { "en": "The Court is duty bound to give out a clear message that anyone who commits the offence of dangerous driving causing death will be severely punished.", "zh-HK": "法庭有責任發出明確信息，危險駕駛導致他人死亡的罪行必會受到嚴懲。" } }, { "doc_id": 105, "seg_id": 24, "translation": { "en": "However the Applicant did not have the intention to drive extremely irresponsibly and dangerously over a long period of time or when the risks of killing/injuring other road users were foreseeable. Those aggravating factors as set out in R v Cooksley are not present in this case. The accident happened because the Applicant made a wrong judgment and conducted the turn at a higher than reasonable speed over that brief moment of time. His criminality is not on the high side, and does not fall within the extremely serious category.", "zh-HK": "但申請人並非故意長時間及在預計到其他道路使用者會受傷亡的情況下，以極不負責任及危險的方式駕駛車輛。本案不具R v Cooksley 案所列出之加重罪責因素。申請人是在錯誤判斷及短暫地以高於合理速度轉彎時失控，造成意外。他的刑責不屬高度刑責，更非極度嚴重刑責之類別。" } }, { "doc_id": 105, "seg_id": 25, "translation": { "en": "The Respondent was represented by Mr David Leung, Senior Assistant Director of Public Prosecutions, who emphasized that the legislative authorities had increased the maximum penalty of dangerous driving causing death from 5 to 10 years’ imprisonment in order to reflect public abhorrence of the offence. Mr. Leung argued that the overall sentence of that category of offence should be accordingly increased. We agree that the legislature has raised the maximum penalty of the offence to reflect the concern of the general public on the offence. However it does not mean that all offences of dangerous driving causing death should attract heavier sentences. The legislature has increased the maximum penalty of the offence to indicate mainly that the original maximum penalty was inadequate to reflect the criminality in the most serious cases of this type of offence. It has not been suggested that heavy sentences should be imposed in the relative minor cases of the same type. Even though the sentence of this category of cases has been doubled, it does not follow that the overall sentences that were imposed in the past should be raised.", "zh-HK": "代表答辯人的高級刑事檢控專員梁卓然強調立法當局已將危險駕駛引致他人死亡罪行的最高刑罰由5年提升至10年，以反映社會對該罪行之厭惡。梁先生認為該類罪行之整體刑期都應有所增加。本庭同意立法當局將有關罪行的最高刑罰提高是反映社會大眾對該罪行的重視，但不表示所有危險駕駛引致他人死亡罪行的判刑都需增加。立法當局將罪行之最高刑罰提升，主要是表示原本之最高刑罸不足以反映該類罪行最嚴重情況之刑責，而非表示較輕微的同類罪行亦必需處以重刑，將以往同類案件的判刑倍增，亦非必需將以往的判刑整體提高。" } }, { "doc_id": 105, "seg_id": 26, "translation": { "en": "This Court cannot overlook the fact that if a driver is sentenced to imprisonment for a traffic accident, that is in itself a very harsh punishment regardless of the length of imprisonment.", "zh-HK": "本庭不能忽視，對一名駕駛者而言，因交通意外而遭監禁本身，不論監禁時間長短，已是極為嚴苛之懲罸。" } }, { "doc_id": 105, "seg_id": 27, "translation": { "en": "It goes without saying that for the sake of protecting the safety of the general public, any deliberate, prolonged acts of extremely dangerous driving that pose definitely foreseeable risks to other road users should be subject to severe sentences if anyone is killed in the accident. Such extremely dangerous acts of driving include drink driving, high-speed car racing on highways, speeding at a speed far above the limit over a prolonged period of time and contravention of traffic signs, jumping red lights at road junctions controlled by traffic lights and certain dangerous acts of cutting lanes at high speeds. The reason is that a normal driver can definitely foresee that it is very likely that such dangerous acts of driving will cause extremely great harm to other road users.", "zh-HK": "當然，一些故意、長時段及預計必會對其他道路使用者做成危害的極度危險駕駛行為，在意外導致有人死亡時，必需重判，以保障大眾的安全。本庭所指的極度危險駕駛行為包括酒後危險駕駛，在公路上高速賽車，長時間以遠超過車速限制的車速及違反交通標誌行駛，在交通燈管制的路口衝紅燈及一些以高速切線駕駛的危險行為。原因是一名正常駕駛者必能預計該些危險駕駛行為很大可能會對其他道路使用者做成極大之危害。" } }, { "doc_id": 105, "seg_id": 28, "translation": { "en": "The present case did not involve any of the extremely dangerous acts of driving mentioned above. Taking into account the background of the case and the fact that the Applicant does not have any previous conviction or driving records, this Court is of the view that a sentence of 2 years’ imprisonment is sufficient to reflect his culpability in this incident and is an adequate deterrent against similar acts of dangerous driving.", "zh-HK": "本案不涉及上述所指的極度危險駕駛行為。本庭認為以本案的背景及考慮到申請人全無任何犯罪或駕駛犯錯記錄，2年監禁已足以反映在事件中申請人應負的刑責，亦足以阻嚇同類之危險駕駛行為。" } }, { "doc_id": 105, "seg_id": 29, "translation": { "en": "The Applicant’s application for leave to appeal against sentence is granted, and treating his application as the formal appeal, this Court allows the Applicant’s appeal and reduces his sentence from 3 ½ years’ to 2 years’ imprisonment.", "zh-HK": "本庭批准申請人就判刑上訴，並視其申請為正式上訴。本庭判申請人上訴得直，其刑期由3年半減為2年。" } }, { "doc_id": 105, "seg_id": 30, "translation": { "en": "Mr David Leung, SADPP, of Department of Justice, for the Respondent.", "zh-HK": "申請人(判刑): 由法律援助署委派文志昌律師行轉聘關恆芬大律師代表。" } }, { "doc_id": 105, "seg_id": 31, "translation": { "en": "Mr Jasper Kwan, instructed by Messrs. Kenneth C. C. Man & Co., assigned by the Legal Aid Department, for the Applicant (on sentence).", "zh-HK": "申請人(定罪): 無律師代表，親自應訊。" } }, { "doc_id": 105, "seg_id": 32, "translation": { "en": "The Applicant, in person, present (on conviction).", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員梁卓然代表。" } }, { "doc_id": 106, "seg_id": 1, "translation": { "en": "Hon Yeung JA (giving the Judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案書：" } }, { "doc_id": 106, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 106, "seg_id": 3, "translation": { "en": "The applicant, Yeung Chuen Tai, pleaded guilty to a charge of theft before District Judge Andrew Chan and as a result, was sentenced to 32 months’ imprisonment. The Judge adopted a starting point of 4 years and on account of the applicant’s plea, discounted it by one-third to 32 months.", "zh-HK": "申請人楊全帶在區域法院法官陳慶偉席前承認一項盜竊罪，結果被判入獄32個月。陳法官以4年為量刑基準，並因申請人認罪而將刑期扣減三份一至32個月。" } }, { "doc_id": 106, "seg_id": 4, "translation": { "en": "The applicant now seeks leave to appeal against the sentence.", "zh-HK": "申請人不服判刑，現提出申請要求獲准就判刑上訴。" } }, { "doc_id": 106, "seg_id": 5, "translation": { "en": "Facts", "zh-HK": "案情" } }, { "doc_id": 106, "seg_id": 6, "translation": { "en": "The victim of the case, Madam Wu, who was 78 years old, lived alone and relied on her son for support. Madam Wu had operated a guesthouse called “Fu Yiu Villa” (富瑤小築) in Phoenix Apartments in Causeway Bay before. The applicant came to know her as he had been a resident in the guesthouse, and was employed by her as a relief worker.", "zh-HK": "案件受害人鄔女士78歲，獨居並倚靠兒子供養。鄔女士曾在銅鑼灣鳳鳴大厦經營一所名為“富瑤小築”的賓館。申請人因曾是賓館的住客而認識鄔女士及獲鄔女士聘用為替工。" } }, { "doc_id": 106, "seg_id": 7, "translation": { "en": "“Fu Yiu Villa” ceased business in 2006 but Madam Wu continued to employ the applicant to decorate her residence.", "zh-HK": "2006年“富瑤小築”結業而鄔女士繼續聘用申請人裝修其住所。" } }, { "doc_id": 106, "seg_id": 8, "translation": { "en": "Starting from September 2008, the applicant frequently asked Madam Wu to lend him money. On each occasion, the loan was not more than $100. On 3 October 2008, the applicant again went to Madam Wu’s residence to demand money. When she refused to open the door, the applicant caused a disturbance outside the door and made nuisance by inserting a two-foot long aluminium strip through the ventilation window in the living room. Being at her wit’s end, Madam Wu had no choice but to open the wooden door of her residence. The applicant rushed into the premises immediately, grabbed hold of Madam Wu’s upper body with both hands and dragged her into the bedroom. Madam Wu shouted aloud, “Help!” She asked the applicant what he wanted. The applicant responded, “I want money, and life as well!” Extremely frightened, Madam Wu handed over $8,000 to the applicant. The applicant took off immediately after taking the money.", "zh-HK": "2008年9月開始，申請人經常向鄔女士借錢，每次不多於100元。2008年10月3日，申請人再次去鄔女士住所索取金錢。鄔女士拒絕開門後，申請人在門外搗亂，並用一兩呎長的鋁條穿過客聽的通氣窗，製造滋擾。鄔女士在無計可施的情況下，被迫打開住所木門。申請人隨即衝入屋內，雙手抓着鄔女士的上身，拖她入睡房。鄔女士大叫“救命”，並問申請人想要甚麼，申請人回應說：“我又要錢，又要命！”鄔女士大驚之下，將8,000元拿給申請人。申請人取得錢後，便立刻逃走。" } }, { "doc_id": 106, "seg_id": 9, "translation": { "en": "The applicant had a clear record. He claimed that he suffered from the disease of corneal detachment and he had lost all the money that he had taken in mahjong games.", "zh-HK": "申請人沒有犯罪記錄。他聲稱患有眼角膜脫落症，而取得的金錢都輸在麻雀檯上。" } }, { "doc_id": 106, "seg_id": 10, "translation": { "en": "Reasons for sentence", "zh-HK": "判刑理由" } }, { "doc_id": 106, "seg_id": 11, "translation": { "en": "Judge Chan took the view that although the offence to which the applicant pleaded guilty was theft, the facts which he admitted indicated that the elements of the offence of robbery were all there. As a result, he decided to sentence the applicant on the basis of an offence of robbery.", "zh-HK": "陳法官認為雖然申請人承認的是盜竊罪，但其承認的案情顯示搶劫罪的元素均在，故他決定以搶劫罪懲處申請人。" } }, { "doc_id": 106, "seg_id": 12, "translation": { "en": "Judge Chan emphasized that Madam Wu was of advanced age and her financial position was not strong. Yet, the applicant applied force on her and stole from her $8,000, an amount of money which was not insignificant to her. The judge was of the view that the crime that the applicant committed must have caused great fear to Madam Wu. He took a starting point of 4 years, and because of the guilty plea of the applicant, he discounted it by one-third to 32 months.", "zh-HK": "陳法官強調鄔女士年屆古稀之年，經濟能力不強，申請人郤對她施加武力盜取一筆對鄔女士而言屬數目不少的8,000元。陳法官認為申請人的罪行必會對鄔女士造成極度恐慌。陳法官以4年為量刑基準，並因申請人認罪，而將刑期扣減三份一至32個月。" } }, { "doc_id": 106, "seg_id": 13, "translation": { "en": "Ground of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 106, "seg_id": 14, "translation": { "en": "Mr. Lo, Counsel for the applicant, stressed that Judge Chan should not have sentenced the applicant for an offence of which he had not been convicted, namely, the offence of robbery, and the starting point adopted by the judge was also manifestly excessive. Mr. Lo cited the cases of HKSAR v Tsang Wai Man (CACC 288/2006) and R v Yung Wing Hong (HCMA 386/1996) in support of his position.", "zh-HK": "代表申請人的羅沛然大律師強調陳法官不應以申請人未被定的罪行，即搶劫罪來懲處他而陳法官採納的量刑基準亦屬明顯過高。羅大律師援引HKSAR V Tsang Wai Man (CACC 288/2006) 及R v Yung Wing Hong （HCMA 386/1996）等案支持其立場。" } }, { "doc_id": 106, "seg_id": 15, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 106, "seg_id": 16, "translation": { "en": "The applicant gained entry into Madam Wu’s residence by rough means with a view to taking money from her. It was sheer luck that Madam Wu did not sustain any sprains, falling down or injury which might result from her bumping against the furniture when she was dragged into the bedroom by the applicant. The home is supposed to be the safest place. Yet Madam Wu had to withstand disturbances made by the applicant for a long period of time. The applicant should be strongly condemned for the crime that he committed. When considering the sentence to be imposed, the court should take into account all the facts of the case, including any aggravating factors.", "zh-HK": "申請人用粗暴的手段進入鄔女士的居所，目的是取得鄔女士的金錢。申請人把鄔女士拖行入睡房時沒有令她扭傷、跌倒或撞倒家具釀成損傷只是幸運而已。家本來應該是最安全的地方，但鄔女士卻要長期忍受申請人滋擾。申請人的罪行需受強烈譴責，法庭考慮判刑時，亦應將整件案件的案情，包括加重罪責的因素考慮在內。" } }, { "doc_id": 106, "seg_id": 17, "translation": { "en": "However, the court cannot sentence a defendant for a crime that he/she has not been charged with or convicted of. It is not for this court to be concerned with the question of why the prosecution did not charge the applicant with the offence of robbery. But it is undisputed that what the applicant faced with and convicted of was just an offence of theft. The applicant must be sentenced for the offence of theft. It is contrary to sentencing principle and inappropriate for Judge Chan to sentence the applicant for an offence of robbery. We cannot lose sight of the fact that the maximum sentence for an offence of theft is 10 years’ imprisonment while that for robbery is life.", "zh-HK": "但法庭不能以被告人未被檢控或未被定罪的罪行來懲處他。控方為何不以搶劫罪控告申請人，並非本庭要關注的問題，但申請人面對的只是盜竊罪及被定此罪亦是不爭的事實。申請人必需以盜竊罪罪名被判刑。陳法官以搶劫罪懲處申請人違反判刑原則，是不適當的。本庭不能忽視盜竊罪的最高判刑是10年監禁，而搶劫罪的最高判刑則為終身監禁。" } }, { "doc_id": 106, "seg_id": 18, "translation": { "en": "The use of force on Madam Wu by the applicant in the course of the theft is certainly an aggravating factor. But the basis for the sentence must still be the offence of which the applicant was convicted and not any other offence.", "zh-HK": "當然在盜竊過程，申請人對鄔女士使用武力，必然是加重罪責因素，但判刑基礎仍需是申請人被定之罪，而非其他控罪。" } }, { "doc_id": 106, "seg_id": 19, "translation": { "en": "Although the applicant did use force on Madam Wu, his purpose was to restrain her and to drag her into the room. The force that he used was not very serious and did not result in any injury to her.", "zh-HK": "雖然申請人確有對鄔女士使用武力，但他的目的是控制鄔女士，拖她入房。申請人使用的武力，並非十分嚴重，亦沒有對鄔女士做成任何傷勢。" } }, { "doc_id": 106, "seg_id": 20, "translation": { "en": "For an ordinary theft of $8,000, the sentence should not be beyond 18 months. Even taking into account the fact that the applicant threatened and bullied an old lady of 78 years by means of force, in our view, a starting point of sentence of 33 months is sufficient to reflect the seriousness of the incident. In taking this starting point, we have also taken into account the clear record of the applicant.", "zh-HK": "以一般盜竊8,000元的罪行而言，判刑不應超越18個月，即使將申請人威嚇及以武力欺負一名78歲婆婆一事考慮在內，本庭認為33個月的量刑基準已足以反映事件的嚴重性。在定出上述量刑基準時，本庭亦考慮到申請人並無任何犯罪記錄。" } }, { "doc_id": 106, "seg_id": 21, "translation": { "en": "On the facts of the case as a whole, we are of the view that the starting point of 4 years adopted by the judge on the basis of an offence of robbery is wrong in principle and excessive. In considering the sentence for an offence of theft and for the applicant having a clear record, the appropriate starting point is 33 months. He is entitled to one-third discount on account of his plea.", "zh-HK": "以整體案情而言，本庭認為原審法官以搶劫罪為基礎而採納的4年量刑基準原則性犯錯，亦過高。以控罪是盜竊罪而申請人並無任何犯罪記錄來考慮判刑，適當的量刑基準為33個月。申請人認罪，故應獲三份一刑期扣減。" } }, { "doc_id": 106, "seg_id": 22, "translation": { "en": "We grant leave to the applicant to appeal against sentence and treat the application as the hearing of the appeal. We allow the applicant’s appeal and the sentence is reduced from 32 months to 22 months.", "zh-HK": "本庭批准申請人就判刑上訴，並視其申請為正式上訴。本庭判申請人上訴得直，刑期由32個月減至22個月。" } }, { "doc_id": 106, "seg_id": 23, "translation": { "en": "Miss Mary Sin, SADPP of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員冼佩霞代表。" } }, { "doc_id": 106, "seg_id": 24, "translation": { "en": "Mr. P. Y. Lo, instructed by Messrs. C. L. Chow & Macksion Chan, assigned by the Director of Legal Aid, for the Applicant.", "zh-HK": "申請人：由法律援助署委派周立、陳啟球、陳一理律師事務所轉聘大律師羅沛然代表。" } }, { "doc_id": 107, "seg_id": 1, "translation": { "en": "Hon Yeung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案書：" } }, { "doc_id": 107, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 107, "seg_id": 3, "translation": { "en": "On 19 January 2007, Wong Ping Kay, the Applicant herein, arrived in Hong Kong from Caracas via Paris. From his luggage, 1,455.19g of a mixture containing 810.77g of cocaine was found, the retail price of which was approximately HK$1.5 million. The Applicant admitted that, having brought the drug to Hong Kong, he would then take it to the Mainland for the purpose of earning a reward of HK$10,000 or HK$20,000.", "zh-HK": "2007年1月19日，申請人黃炳基從加拉加斯經巴黎抵港時被發現，其行李箱內藏有1455.19克混合劑，內含810.77克可卡因，零售價約150萬港元。申請人承認攜帶毒品進港後會再帶返國內，目的是賺取10,000或20,000港元的報酬。" } }, { "doc_id": 107, "seg_id": 4, "translation": { "en": "As a result of the above incident, the Applicant was charged with one count of trafficking in a dangerous drug. He pleaded guilty before Barnes J and was sentenced to imprisonment for 16 years and 8 months.", "zh-HK": "上述事件導致申請人被控販運毒品罪。申請人在高等法院張慧玲法官席前承認控罪，結果被判入獄16年8個月。" } }, { "doc_id": 107, "seg_id": 5, "translation": { "en": "The Applicant now applies for leave to appeal against sentence.", "zh-HK": "申請人不服判刑，現申請上訴許可，要求獲准就判刑上訴。" } }, { "doc_id": 107, "seg_id": 6, "translation": { "en": "Trial judge’s reasons for sentence", "zh-HK": "原審法官的判刑理由" } }, { "doc_id": 107, "seg_id": 7, "translation": { "en": "The trial judge was mindful of the Applicant’s numerous previous convictions of which 11 were drug-related. The latest one was in 2001 when the Applicant was sentenced to 12 years’ imprisonment for an offence of manufacturing dangerous drugs.", "zh-HK": "原審法官指出申請人有多次犯罪記錄，其中11次和毒品有關。最近一次在2001年，申請人因製毒而被判入獄12年。" } }, { "doc_id": 107, "seg_id": 8, "translation": { "en": "The trial judge referred to a number of cases which indicated a starting point of 25 years or above was adopted for trafficking in cocaine of more than 800g. The trial judge pointed out that in HKSAR v Hong Chang Chi [2002] 1 HKLRD 486 a starting point of 27 years was adopted against the defendant who trafficked in more than 3,000g of cocaine, whereas in HKSAR v Leang Sze Keong (unrep., CACC 566/1997) a starting point of 25 years was also adopted where the defendant trafficked in 889g of heroin.", "zh-HK": "原審法官列出多宗判例，顯示涉及800克以上的販運可卡因罪行，量刑基準為25年或以上。原審法官指出在HKSAR v Hong Chang Chi [2002] 1 HKLRD 486案被告人販運3,000多克可卡因，法庭採納的量刑基準為27年而在HKSAR v Leang Sze Keong案（unrep. CACC 566/1997），被告人販運889克海洛英，法庭採納的量刑基準亦為25年。" } }, { "doc_id": 107, "seg_id": 9, "translation": { "en": "The trial judge highlighted the Applicant’s extensive conviction record in drug trafficking and said that, pursuant to the guidelines set out in HKSAR v Chan Pui Chi [1999] 3 HKC 848, the tariff laid down in R v Lau Tak Ming & others [1990] 2 HKLR 370 for trafficking in heroin / cocaine should be raised.", "zh-HK": "原審法官強調，申請人多次犯販毒罪行，故根據HKSAR v Chan Pui Chi [1999] 3 HKC 848案的指引，應將 Rv Lau Tak Ming & others [1990] 2 HKLR 370案就販運海洛英/可卡因罪行定下的量刑指引上調。" } }, { "doc_id": 107, "seg_id": 10, "translation": { "en": "The trial judge did not agree to lower the appropriate starting point on account of the Applicant’s age of over 60.", "zh-HK": "雖然申請人年齡已超過60歲，但原審法官不同意因此而要將適當的量刑基準下調。" } }, { "doc_id": 107, "seg_id": 11, "translation": { "en": "In the end, the trial judge adopted a starting point of 25 years and, giving the usual one-third discount for his guilty plea, sentenced the Applicant to imprisonment for 16 years and 8 months.", "zh-HK": "最終，原審法官以25年為量刑基準，並因申請人認罪而將刑期扣減三份一至16年8個月。" } }, { "doc_id": 107, "seg_id": 12, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 107, "seg_id": 13, "translation": { "en": "Mr. Poon, Counsel for the Applicant, contends that, in view of the Applicant’s age, a custodial sentence with a term running to 16 years and 8 months is tantamount to a life imprisonment and is a destructive sentence.", "zh-HK": "代表申請人的潘展平大律師指以申請人的年齡而言，16年8個月的監禁，等同終身監禁，屬摧毀性刑期。" } }, { "doc_id": 107, "seg_id": 14, "translation": { "en": "年而事實上該判刑在上訴後減至6年8個月。潘大律師指6年8個月的判刑顯示該案涉案的毒品份量不多。\tMr. Poon points out that, in sentencing, the trial judge twice emphasized that the Applicant had been convicted of manufacturing dangerous drugs and sentenced to 12 years’ imprisonment, but in fact the term of that sentence was reduced to 6 years and 8 months on appeal. Mr. Poon submits that the term of 6 years and 8 months indicated that only a limited quantity of dangerous drugs was involved in that case.", "zh-HK": "潘大律師指原審法官在判刑時兩次強調申請人有製毒罪行記錄及被判入獄12" } }, { "doc_id": 107, "seg_id": 15, "translation": { "en": "Mr. Poon also submits that in the abovementioned case of Hong Chang Chi the defendant trafficked in cocaine of 3,000g, which far exceeded the quantity involved in the present case, but was in the end sentenced to imprisonment for 17 years only. Mr. Poon stresses that the defendant in that case was merely aged 37 and therefore 17 years’ imprisonment in no way resembled a “life imprisonment”.", "zh-HK": "潘大律師亦指出上述Hong Chang Chi案中的被告人販運3,000克可卡因，遠較申請人所販運的為多，但其判刑最終只是17年。潘大律師強調，該案的被告人只有37歲，故17年的判刑絕非近乎“終身監禁”。" } }, { "doc_id": 107, "seg_id": 16, "translation": { "en": "Mr. Poon insists that, in view of the Applicant’s background, in particular his age, a starting point of 25 years and the eventual sentence of 16 years and 8 months are manifestly excessive.", "zh-HK": "潘大律師力稱以申請人的背景特別其年紀而言，25年的量刑基準及最終的16年8個月判刑屬明顯過重。" } }, { "doc_id": 107, "seg_id": 17, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 107, "seg_id": 18, "translation": { "en": "As far as the offence of trafficking in a dangerous drug is concerned, the starting point is determined mainly by reference to the quantity of the drug in question. Other aggravating or mitigating factors, though not entirely irrelevant, should not be accorded significant weight in the sentencing process. As the courts have repeatedly emphasized, drug trafficking is a serious offence which causes grave social harm and, as such, calls for deterrent sentences. Those who are minded commit the heinous offence of drug trafficking should be made aware of the consequences they will inevitably face once they are caught, so that they will not bet on their luck. For this reason, the sentencing guidelines laid down by the Court of Appeal for this type of offences should be followed as closely as possible and should not be departed from due to particular aggravating or mitigating factors.", "zh-HK": "以販運毒品罪行而言，量刑基準主要反映涉案的毒品份量，其他加重罪責或減刑因素，雖然並非完全無關，但應佔比重不大。法庭屢次強調販運毒品對社會遺禍甚大，屬嚴重罪行，故判刑需具阻嚇性。干犯販運毒品這些邪惡罪行的人士，須預知事敗後必然會面對的後果，免卻他們會抱僥倖之心，所以上訴法庭就該類罪行定下的量刑指引，應盡量跟隨，而不應因個別加重罪責或減刑因素而遠離。" } }, { "doc_id": 107, "seg_id": 19, "translation": { "en": "The trial judge emphasized that the Applicant had numerous previous convictions, 11 of which were drug-related, and one of which was for an offence of manufacturing dangerous drugs which entailed a sentence of 12 years’ imprisonment. The trial judge overlooked the fact that the term of that sentence had been reduced to 6 years and 8 months upon appeal.", "zh-HK": "原審法官強調申請人有多次犯案記錄，包括11次和毒品有關而其中一次製毒罪行更導致申請人被判入獄12年。原審法官忽略了判刑在上訴後，減至6年8個月。" } }, { "doc_id": 107, "seg_id": 20, "translation": { "en": "A lengthy criminal record may well be an aggravating factor (see the judgment in the abovementioned case of Chan Pui Chi). However, as pointed out above, such an aggravating factor is of limited weight in the context of drug trafficking offences. Accordingly, whatever the final sentence imposed on the Applicant for the drug manufacturing offence was, it should not have much bearing on the starting point to be applied in the present case. As a matter of fact, the conviction records of the Applicant show that the drug-related offences he committed in the past were not of a very serious nature, with custodial sentences of less than 2 years being imposed, and the drug manufacturing offence for which he was sentenced to imprisonment for 6 years and 8 months involved dangerous drugs of merely 10-odd g.", "zh-HK": "被告人的纍纍案底，可以是加刑因素（見上述Chan Pui Chi 案的判案書）。但誠如上文所述，在販毒案件，該加刑因素應佔的比重不大，故不論申請人製毒罪行最終被判刑期多少，對本案適用的量刑基準影響不大。事實上，申請人的犯罪記錄顯示他以往所犯的毒品罪行，亦非十分嚴重。他被判的刑期不超過兩年而他被判6年8個月判刑的製毒案件亦只涉及10多克毒品。" } }, { "doc_id": 107, "seg_id": 21, "translation": { "en": "Having said that, we do not agree with Mr. Poon’s submission that, in view of the Applicant’s age of 60, the term of 16 years and 8 months is equivalent to a “life imprisonment” and a “destructive sentence” and must therefore be reduced.", "zh-HK": "但本庭不同意潘大律師所指，因為申請人已有60歲，故16年8個月的判刑等同“終身監禁”，屬“摧毀性判刑”，而必須扣減。" } }, { "doc_id": 107, "seg_id": 22, "translation": { "en": "As we have repeatedly emphasized, drug trafficking is a serious offence which warrants deterrent sentences. That the offender is particularly old or young or is under a disability will not constitute a strong or adequate mitigating factor. The purpose of this sentencing approach is to discourage drug traffickers from making use of aged, young or disabled people to participate in those heinous offences.", "zh-HK": "本庭多次強調，販運毒品罪行嚴重，法庭必須施行重刑以收阻嚇之用，罪犯年長、年少或有其他殘障都不是強烈或充份的減刑理由。該做法目的是避免鼓勵從事販運毒品罪行人士利用該些年長、年少或有其他殘障的人參與該些邪惡罪行。" } }, { "doc_id": 107, "seg_id": 23, "translation": { "en": "We do not agree with Mr. Poon’s submission that the term of 16 years and 8 months is, as far as the Applicant is concerned, equivalent to “life imprisonment” and hence a “destructive sentence” which must be reduced. A similar contention was rejected by this Court in R v Chen Chun-yeh CACC 513/1966.", "zh-HK": "本庭不同意潘大律師所指16年8個月判刑對申請人而言等同“終身監禁”，故屬“摧毀性判刑”而必須扣減。潘大律師所持立場在R v Chen Chun-yeh CACC 513/1966案遭本庭否定。" } }, { "doc_id": 107, "seg_id": 24, "translation": { "en": "If, by reason of his old age, the Applicant is likely to pass away in prison, he may seek pardon from the Chief Executive if necessary. However, the sentencing court cannot rely on the defendant’s old age as a reason for departing from the sentencing norm and making special arrangements. Of course, the court may, depending upon the circumstances of each case, exercise its discretion in making minor adjustments to the sentence on the basis of the defendant’s old age.", "zh-HK": "假若申請人因年紀老邁而有可能老死獄中，他可以在有需要時向行政長官提出申請，要求特赦，但被告人年紀老邁這並非法庭在判刑時遠離有關量刑指引及作出特殊安排的理由。當然法庭是可以根據個別案件，以被告人年紀大而在判刑時酌量作出輕微的調整。" } }, { "doc_id": 107, "seg_id": 25, "translation": { "en": "The starting point for trafficking in cocaine is the same as that for trafficking in heroin (see AG v Pedro Nel Rojas [1994] 2 HKCLR 69).", "zh-HK": "販運可卡因罪行之量刑基準和販運海洛英罪行相同（見AG v Pedro Nel Rojas [1994] 2 HKCLR 69案）。" } }, { "doc_id": 107, "seg_id": 26, "translation": { "en": "On the basis of Lau Tak Ming, trafficking in heroin of 400g to 600g attracts a starting point of 15 to 20 years, whereas heroin of more than 600g falls into the category of “very substantial quantities”. The starting point for trafficking in “very substantial quantities” of heroin is to be enhanced from the ceiling of 20 years in the guidelines laid down in Lau Tak Ming.", "zh-HK": "根據Lau Tak Ming案，販運400至600克海洛英罪行的量刑基準為15至20年，而涉及600克以上海洛英則屬“極大份量”類別。涉及“極大份量”海洛英的販毒案件，量刑基準要由Lau Tak Ming 案定下的最高20年量刑指引上調。" } }, { "doc_id": 107, "seg_id": 27, "translation": { "en": "In Lau Tak Ming, no clear sentencing guidelines were laid down for trafficking in heroin of more than 600g. However, it was held in some cases that the upward adjustment should not be directly proportional to the increase in the quantity of drugs involved.", "zh-HK": "Lau Tak Ming案並沒有就販運超過600克海洛英罪行作出明確量刑指引，但有案例裁定上調之幅度不應和毒品份量之增加成正比。" } }, { "doc_id": 107, "seg_id": 28, "translation": { "en": "The present case involved approximately 800g of cocaine, which is 200g in excess of the 600g that attracts a starting point of 20 years. The starting point of 25 years adopted by the trial judge is not completely out of proportion. Nevertheless, if trafficking in cocaine of 800g justifies a starting point of 25 years, what starting point should be adopted by the court in cases involving trafficking in heroin / cocaine of 1,500g or 2,000g or more? Should it be 30 years or even more?", "zh-HK": "本案涉及約800克可卡因，較可導致20年量刑基準的600克多200克，原審法官採納的25年量刑基準並非完全不合符比例。但假若販運800克可卡因足以導致25年的量刑基準，那麼處理涉及1,500克，或2,000克或更多海洛英/可卡因的販運毒品罪行時，法庭須採納甚麼量刑基準，是30年，還是更長的刑期？" } }, { "doc_id": 107, "seg_id": 29, "translation": { "en": "We note that in R v Ho Chi Ming [1995] 2 HKCLR 29, the 23-year-old defendant trafficked in heroin of 1,200g from Hong Kong to Taiwan, and the sentencing judge also adopted a starting point of 25 years.", "zh-HK": "本庭知悉在R v Ho Chi Ming [1995] 2 HKCLR 29,一名23歲的被告人販運1,200克海洛英離開香港前往台灣，判刑時，法庭採納的量刑基準亦是25年。" } }, { "doc_id": 107, "seg_id": 30, "translation": { "en": "However, the quantity of drugs involved in the present case is less than that in Ho Chi Ming by one-third.", "zh-HK": "但本案涉及的毒品份量較Ho Chi Ming案少三份一。" } }, { "doc_id": 107, "seg_id": 31, "translation": { "en": "In the abovementioned case of Hong Chang Chi, the defendant trafficked in as much as 3,000g of cocaine, which was almost four-fold more than the quantity involved in the present case, but a starting point of only 27 years was adopted. In view of the quantities of drugs involved in the two cases, the two sentences are disproportionately discrepant. The defendant in that case, who had pleaded guilty, was sentenced to a term of 17 years, which is only 4 months more than the term imposed on the Applicant.", "zh-HK": "在上述Hong Chang Chi案，被告人販運的可卡因份量更達3,000克，較本案所涉的份量多近4倍，法庭採納的量刑基準亦只是27年。以兩案所涉及的毒品份量而言，刑期的差別是不成比例的。在該案被告人認罪後被判的刑期是17年，亦只較申請人的判刑多4個月。" } }, { "doc_id": 107, "seg_id": 32, "translation": { "en": "We also note that in the abovementioned case of Leang Sze Keong, which involved trafficking in 889g of heroin, the trial judge adopted a starting point of 25 years, and it was approved by this Court.", "zh-HK": "本庭亦知悉在上述Leang Sze Keong案，被告人販運889克海洛英，原審法官採納的25年量刑基準獲本庭支持。" } }, { "doc_id": 107, "seg_id": 33, "translation": { "en": "However, we must point out that the quantity of drugs involved in that case was 80g more than that involved in the present case. The Court of Appeal’s judgment in that case contained no more than three paragraphs. Apart from stating that the starting point of 25 years was in line with the one laid down in Lau Tak Ming, the Court did not go on to discuss the issues arising out of the case, perhaps because the defendant in that case was not legally represented and hence no sufficient assistance was offered to the Court. In our judgment, the sentence in Leang Sze Keong is not binding on us.", "zh-HK": "但本庭須指出該案涉及的毒品較本案多約80克。上訴法庭的判案書只有三段，除了指出25年量刑基準和Lau Tak Ming案的量刑基準指引吻合外，上訴法庭對案件引發的議題並沒有仔細討論，原因可能是在該案的被告人沒有律師代表，故法庭未獲足夠協助。本庭認為Leang Sze Keong案的判刑對本庭不具約束力。" } }, { "doc_id": 107, "seg_id": 34, "translation": { "en": "Page 600 of Sentencing in Hong Kong (Cross & Cheung, 5th Edn.) sets out a number of sentencing cases involving trafficking in large quantities of heroin. In HKSAR v Li Lap-fo Cr App 639/1999, which involved more than 5,000g, a starting point of 24 years was adopted; in HKSAR v Chiu Ho-chung [2001] 1 HKLRD 697, which involved almost 5,000g, a starting point of 25 years was adopted; in HKSAR v Lam Kam-kwong [2002] 1 HKC 541, a starting point of 24 years was adopted in respect of a quantity approaching 1,500g.", "zh-HK": "Sentencing in Hong Kong (Cross & Cheung 5th Edit)一書第600頁列出多宗涉及販運大量海洛英毒品案件的判刑。HKSAR v Li Lap-fo Cr App 639/1999涉及超過5,000克,量刑基準為24年；HKSAR v Chiu Ho-Chung [2001] 1 HKLRD 697涉及近5,000克，量刑基準為25年; HKSAR v Lam Kam-Kwong [2002] 1 HKC 541, 涉及近1,500克, 量刑基準為24年。" } }, { "doc_id": 107, "seg_id": 35, "translation": { "en": "In light of the above cases, we hold that for the offence of trafficking in 800g of heroin or cocaine, a starting point of 25 years is excessive, and one of 22 years is sufficient.", "zh-HK": "根據上述案例，本庭認為以販運800克海洛英或可卡因的罪行而言，25年的量刑基準屬過高，22年已足夠。" } }, { "doc_id": 107, "seg_id": 36, "translation": { "en": "As the Applicant pleaded guilty, the term should be reduced by one-third to 14 years and 8 months. We see no other factors that justify a further reduction.", "zh-HK": "申請人認罪，刑期應扣減三份一至14年8個月。本庭不能察覺任何其他因素，再扣減刑期。" } }, { "doc_id": 107, "seg_id": 37, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 107, "seg_id": 38, "translation": { "en": "We allow the Applicant’s application for leave to appeal against sentence and treat the application as the appeal proper. We allow the appeal and reduce the sentence from 16 years and 8 months to 14 years and 8 months.", "zh-HK": "本庭批准申請人針對判刑提出上訴，並視其申請為正式上訴。本庭判申請人上訴得直，其判刑由16年8個月減至14年8個月。" } }, { "doc_id": 107, "seg_id": 39, "translation": { "en": "Ms. Winsome Chan, Senior Government Counsel, for the Respondent.", "zh-HK": "答辯人：由律政司高級政府律師陳淑慧代表。" } }, { "doc_id": 107, "seg_id": 40, "translation": { "en": "Mr. Jackson Poon, instructed by the Legal Aid Department, for the Applicant.", "zh-HK": "申請人：由法律援助署委派大律師潘展平代表。" } }, { "doc_id": 108, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the reasons for judgment of the court):", "zh-HK": "高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 108, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 108, "seg_id": 3, "translation": { "en": "This is an appalling case of child sexual abuse. The applicant is a young mother who gave birth to a boy P, the victim, on 27 January 2007.", "zh-HK": "本案是一宗駭人聽聞的性侵犯兒童案件。申請人是一名年輕母親，在2007年1月27日誕下案件的受害男童“P”。" } }, { "doc_id": 108, "seg_id": 4, "translation": { "en": "Between 11 April 2011 and 5 July 2012, the applicant was a clerk in the employ of a textile company. After the applicant had left the employment, the person in charge of the company found some MSN dialogues relating to sex and child sexual abuse on the computer used by the applicant, and the matter was reported to the police.", "zh-HK": "2011年4月11日至2012年7月5日，申請人受僱於某紡織公司，任職文員。申請人離職後，公司的負責人發覺申請人使用的公司電腦上有一些與性愛和性侵犯兒童有關的MSN對話後，知會警方。" } }, { "doc_id": 108, "seg_id": 5, "translation": { "en": "Police investigation revealed that the applicant had offered her son, who had then just reached the age of five, to a perverted male “Mr Tong” for the purpose of sexual gratification in return for pecuniary advantage. As a result of the incident, the applicant was charged with the first count of conspiring with “Mr Tong” to commit homosexual buggery with P, and the second count of conspiracy to commit indecent assault on P which was an alternative charge to the first count.", "zh-HK": "警方的調查顯示申請人為了獲得金錢得益，將當時年紀剛5 歲的“P”供給一名變態男子“唐某”淫辱。事件導致申請人被控第一項和“唐某”串謀與“P”作出同性肛交罪及第二項串謀猥褻侵犯“P”的交替性控罪。" } }, { "doc_id": 108, "seg_id": 6, "translation": { "en": "The applicant denied the charges, and she was tried before Tong J (the trial judge) sitting with a jury in the High Court.", "zh-HK": "申請人否認控罪，並在高等法院原訟法庭法官湯寶臣（原審法官）會同陪審團席前受審。" } }, { "doc_id": 108, "seg_id": 7, "translation": { "en": "After trial, the applicant was found guilty by the jury of the first count on 23 May 2013, and she was sentenced to 11 years’ imprisonment by the trial judge on 18 July 2013.", "zh-HK": "2013年5月23日，經審訊後，申請人遭陪審團裁定第一項控罪罪名成立，並於2013年7月18日被原審法官判處入獄11年。" } }, { "doc_id": 108, "seg_id": 8, "translation": { "en": "The applicant was aggrieved by the conviction and the sentence and applied for leave to appeal against both. On 6 January 2014, the applicant notified the court of her abandonment of the application for leave to appeal against conviction out of time, and it was dismissed accordingly. Mr Bernard Yuen, Counsel for the applicant, asked for leave to appeal against the sentence. After hearing, we granted leave to appeal against sentence to the applicant and treated the application as the appeal proper. We allowed the appeal and reduced the term of sentence to 10 years and 6 months. Here are our reasons for the judgment.", "zh-HK": "申請人不服定罪及判刑，曾提出上訴許可申請，要求獲准就定罪及判刑上訴。2014年1月6日，申請人知會法庭，會放棄就定罪的逾期上訴許可申請，該申請亦被撤銷。申請人由袁國華大律師代表，要求獲許可就判刑提出上訴。經聆訊後，本庭批准申請人就判刑上訴，並視其申請為正式上訴。本庭裁定申請人上訴得直，並將其刑期減至10 年 6 個月。以下是本庭的判案理由。" } }, { "doc_id": 108, "seg_id": 9, "translation": { "en": "The Facts", "zh-HK": "案情事實" } }, { "doc_id": 108, "seg_id": 10, "translation": { "en": "The applicant was born in January 1981, and she was about 30 years old at the time of the offence. After Form 5 graduation, the applicant at one time cohabited with her boyfriend and gave birth to P. The applicant broke up with her boyfriend later on, and then P was taken care of by his paternal grandmother, maternal grandmother and the applicant in turn. The applicant was a clerk with limited income. In 2005, the applicant came to know a “Mr Tong” and became his sex partner. The applicant agreed to have sex with “Mr Tong” in return for his financial assistance. In order to obtain further financial assistance from “Mr Tong”, the applicant had taken P to the residence of “Mr Tong” on three occasions between April 2011 and July 2012, for him to perform perverted sexual acts including buggery on P.", "zh-HK": "申請人在1981年1月出生，案發時約30歲。中五畢業後申請人曾和男朋友同居，並誕下“P”。其後申請人和男朋友分手，而“P”則由其嫲嫲、婆婆和申請人輪流照顧。申請人任職文員，收入不多。2005年申請人認識“唐某”，並成為他的性伴侶。“唐某”會經濟上協助申請人，而申請人則同意和“唐某”性交作為交換條件。為了進一步獲得“唐某”的經濟協助，申請人在2011年4月至2012年7月期間三次帶“P”前往“唐某”的居所，以便“唐某”對“P”作出性變態行為，包括肛交。" } }, { "doc_id": 108, "seg_id": 11, "translation": { "en": "According to the MSN dialogues between the applicant and “Mr Tong”, the applicant knew that “Mr Tong” was a paedophile, and “Mr Tong” requested the applicant to take P to his residence so that he could sexually abuse P, which included what “Mr Tong” referred to as “playing with mother and son”.", "zh-HK": "根據申請人和“唐某”的MSN對話內容，申請人知悉“唐某”有孌童癖，而“唐某”要求申請人將“P”帶往其居所，令他能性侵犯“P”，包括“唐某”所指的“玩母子”。" } }, { "doc_id": 108, "seg_id": 12, "translation": { "en": "It was revealed that prior to sexually assaulting P, “Mr Tong” would have fed P with certain drugs to make him sleep before performing sexual acts on him, and the applicant would agree with “Mr Tong” beforehand on the arrangements of money and the administration of drugs.", "zh-HK": "資料顯示“P”遭“唐某”淫辱前，“唐某”將某些藥物給“P”餵食，令“P”睡覺，才和“P”進行性行為。事前，申請人會和“唐某”達成金錢和用藥的安排。" } }, { "doc_id": 108, "seg_id": 13, "translation": { "en": "The applicant admitted that when she was together with P and “Mr Tong”, she had on occasion(s) had oral sex with “Mr Tong” and then kissed P, which caused physical injuries to P and made him feel painful.", "zh-HK": "申請人承認和“P”及“唐某”一起時，試過先和“唐某”口交再錫“P”。事件導致“P”身體受損，令他感到痛楚。" } }, { "doc_id": 108, "seg_id": 14, "translation": { "en": "Reasons for sentence of the trial judge", "zh-HK": "原審法官的判刑理由" } }, { "doc_id": 108, "seg_id": 15, "translation": { "en": "The trial judge emphasized that the applicant had no psychological problem, and she took her young son to the residence of “Mr Tong” for him to gratify his sexual desire simply for pecuniary advantage. The applicant should have known that “Mr Tong”, apart from assaulting P indecently, would also perform buggery on P. The trial judge took the view that the applicant might also have been drugged by “Mr Tong” and became sound asleep. Therefore, she might not have witnessed the evil deeds “Mr Tong” had done to P. However, the applicant must have knowledge of the matter as she had discussed about the arrangements with “Mr Tong” beforehand, and she also had some discussions with him afterwards.", "zh-HK": "原審法官強調申請人沒有心理問題，而她全是為了金錢得益而將年幼兒子帶往“唐某”的居所，供他淫辱。申請人應知悉“唐某”除了非禮“P”外，更會和“P”肛交。原審法官認為申請人可能亦遭“唐某”施藥，令她昏睡，故未必能親眼目睹“唐某”對“P”做出的惡行，但申請人必然對事件知情，原因是申請人事前有和“唐某”商討安排，事後亦有和他商談事件。" } }, { "doc_id": 108, "seg_id": 16, "translation": { "en": "The trial judge said that there was no evidence to show that P suffered mentally or physically from the aftermath of the incident, and therefore the criminality of the applicant is lower than that of the defendant in HKSAR v Kwan Hoi (CACC 415/2002).", "zh-HK": "原審法官指沒有證據顯示事件令“P”有任何精神或身體的後遺症，故申請人的罪行較香港特別行政區 訴 關海（CACC 415/2002）案被告人罪行的嚴重性為低。" } }, { "doc_id": 108, "seg_id": 17, "translation": { "en": "The trial judge pointed out that the applicant has given up the chance to meet P until he becomes a grown-up, it is therefore not possible for the applicant to re-offend, but the sentence must, in his view, carry a deterrent effect. At last, the applicant was sentenced to 11 years’ imprisonment by the trial judge.", "zh-HK": "原審法官指出雖然申請人已放棄和“P”見面的機會，直至他長大，故申請人不可能再干犯相同罪行，但認為刑期要帶出阻嚇作用。原審法官最終判申請人入獄11年。" } }, { "doc_id": 108, "seg_id": 18, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 108, "seg_id": 19, "translation": { "en": "Mr Bernard Yuen, Counsel for the applicant, pointed out that the criminality in the present case was much lower than that in the case of Kwan Hoi. In his written submissions, Mr Yuen emphasized that the following aggravating factors could be found in the case of Kwan Hoi, which included:", "zh-HK": "代表申請人的袁國華大律師指本案遠較關海案的嚴重性為低。在其書面陳詞，袁大律師強調關海案有以下加重罪責的因素，包括：" } }, { "doc_id": 108, "seg_id": 20, "translation": { "en": "The case involved sexual offences against a girl, namely two counts of buggery and one count of having sexual intercourse with a girl under the age of thirteen;", "zh-HK": "案件涉及針對女童的性侵犯控罪，即兩項肛交罪及一項與13歲以下女童性交罪；" } }, { "doc_id": 108, "seg_id": 21, "translation": { "en": "the victim girl was required to relive the ordeal by recounting the same in the witness-box;", "zh-HK": "受害女童要作供及憶述慘痛經歷；" } }, { "doc_id": 108, "seg_id": 22, "translation": { "en": "the victim girl indicated the feeling of pain and fear, but the defendant still scolded her fiercely and told her not to make a noise;", "zh-HK": "受害女童表示感痛楚和驚恐，但被告人仍兇惡地責駡她及叫她不可作聲；" } }, { "doc_id": 108, "seg_id": 23, "translation": { "en": "medical evidence showed that the hymen of the victim girl was ruptured; and", "zh-HK": "醫學證據顯示受害女童處女膜破裂；及" } }, { "doc_id": 108, "seg_id": 24, "translation": { "en": "the defendant showed no remorse, and he even alleged that his sexual acts were only responding to the girl’s sexual advances made to him.", "zh-HK": "被告人毫無悔意，更指受害女童主動引發他作性行為。" } }, { "doc_id": 108, "seg_id": 25, "translation": { "en": "Mr Yuen emphasized that in the case of HKSAR v Loke Yat (CACC 79/1997) where the defendant was charged with five counts of homosexual buggery and three counts of aiding and abetting another person to commit homosexual buggery, the Court of Appeal held that the starting point adopted for the three counts of aiding and abetting another person to commit homosexual buggery should be 6 years.", "zh-HK": "袁大律師強調在HKSAR v Loke Yat (CACC 79/1997)案，被告人被控五項同性肛交罪及三項協助教唆他人干犯同性肛交罪。上訴法庭裁定三項協助教唆他人干犯同性肛交罪的量刑基準應為6年。" } }, { "doc_id": 108, "seg_id": 26, "translation": { "en": "Mr Yuen also contended that there was no clear evidence to show that “Mr Tong” had committed buggery on P. Even if there was such evidence, it was not sufficient to prove the applicant’s presence and knowledge. Mr Yuen suggested there was no evidence to show that “Mr Tong” had intimidated or forced P with violence, and no evidence that P suffered pain or injuries, and hence the trial judge should not have adopted the sentence in the case of Kwan Hoi as the starting point.", "zh-HK": "袁大律師亦指證據未能明確顯示“唐某”有和“P”進行肛交，而如有的話，證據亦不足以證明申請人在場及知情。袁大律師認為沒有證據顯示“唐某”有用暴力威嚇或強迫“P”，亦沒有證據顯示“P”有痛楚或受傷，因此原審法官不應以關海案的判刑為量刑基準。" } }, { "doc_id": 108, "seg_id": 27, "translation": { "en": "Mr Yuen submitted that there were mitigating factors in the present case, including the confession made by the applicant and her provision of information to the police to assist in tracking down “Mr Tong”, for which, however, the trial judge did not give any discount to the applicant when passing the sentence.", "zh-HK": "袁大律師認為本案有減刑因素，包括申請人作出招認及已向警方提供資料，協助警方追捕“唐某”，但原審法官並沒有給予申請人刑期扣減。" } }, { "doc_id": 108, "seg_id": 28, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 108, "seg_id": 29, "translation": { "en": "As this court has pointed out in the case of HKSAR v Lee Hon Wah and another person (CACC 54/2010), different cases of homosexual buggery and indecent conduct with or towards a child under the age of 16 years involve offenders and victims of different age, background and relationship. The severities of respective circumstances of offences could also vary widely. It is therefore very difficult to give suitable sentencing guideline. Besides, sentences in similar cases are of limited assistance as a guide to sentencing in individual cases. As the nature of this case is extremely special, sentences in other similar cases are of no assistance as a sentencing guideline. Although the victims in the case of Loke Yat were not adults yet, they were capable of thinking independently, and they even consented to have anal sex with the defendant of that case. For this reason, the sentence in that case is of no relevance to that in the present case.", "zh-HK": "誠如本庭在香港特別行政區訴李漢華及另一人(CACC 54/2010)案指出，在同性肛交及與16 歲以下兒童作出猥褻行為的罪行的案件，犯罪人和受害人的年齡、背景及關係各有不同，犯案情況之嚴重性之差別亦可能很大，因此很難作出適當之量刑指引。其他同類案件之判刑，對個別案件判刑之指導作用亦有限。本案性質極為特殊，其他同類案件的判刑不具任何指導性。Loke Yat案的受害人雖然並非成年，但有獨立思想，而他們更是同意和該案的被告人進行肛交行為。因此，該案的判刑和本案的判刑無關。" } }, { "doc_id": 108, "seg_id": 30, "translation": { "en": "We agree that the harm, whether physical or psychological, done to the victim in the case of Kwan Hoi, is far more serious than that suffered by P. P was still under six when the incident took place, and “Mr Tong” had administered drugs to make him sleep before assaulting him indecently.", "zh-HK": "本庭同意關海案的受害人受到的傷害，不論是身體上或精神上的傷害都遠較“P”所受的傷害為深。案發時，“P”不足6歲，而“唐某”對他作出猥褻侵犯行為前，更向他施用藥物，令他睡覺。" } }, { "doc_id": 108, "seg_id": 31, "translation": { "en": "The severity of the present case does not lie in the physical or mental harm done to P, but the applicant’s inhuman behaviour. Being the biological mother of P, the applicant has the responsibility to look after and protect him. Nevertheless, not only did the applicant fail to discharge her duty, but she even “put the cat near the goldfish bowl” for pecuniary advantage. Although she knew full well that “Mr Tong” was a paedophile, she took P to the residence of “Mr Tong” for him to gratify his sexual desires. At the time of the offence, the applicant even agreed with “Mr Tong” to administer drugs to P first to make him sleep before he could assault him sexually.", "zh-HK": "但本案之嚴重性不在乎“P”所受的身體或精神傷害，而是申請人滅絕人性的行為。申請人是“P”的生母，有責任去照顧及保護他。但申請人不但沒有履行其責任，更為了獲得金錢得益，“送羊入虎口”。她明知“唐某”有孌童癖，卻將“P”帶往“唐某”的居所，供他淫辱。事發時，申請人更和“唐某”協議，先向“P”施藥，令他睡覺，以方便他淫辱“P”。" } }, { "doc_id": 108, "seg_id": 32, "translation": { "en": "The conduct of the applicant is evil, in breach of trust and against humanity, which is not acceptable in any civilized societies. This court has to give a clear message that anyone who commits such immoral and abhorrent crime will receive a heavy sentence from the courts.", "zh-HK": "任何文明社會都不可能接受申請人的邪惡、違反誠信及有違天性的行為。本庭亦必須發出明確訊息，任何干犯這類無良、天理不容罪行的人都會遭法庭重判。" } }, { "doc_id": 108, "seg_id": 33, "translation": { "en": "We agree that when considering sentence, apart from the severity of the offence that the applicant has committed, we should also take into account factors such as the harm done to P in this incident, the impact on the victim and the victim’s family, and the risk of re-offending by the applicant. We note that according to the medical report, one year after the incident, P’s physical condition is normal, and there is neither old nor new injury with his genital or anal area.", "zh-HK": "本庭同意，在處理案件的判刑時，除了考慮申請人罪行的嚴重性外，亦要考慮事件對“P”造成的傷害、事件對受害人和其家人的影響及申請人會否重犯等因素。本庭知悉根據醫生報告，事發後一年，“P”的身體狀況正常，性器官和肛門並沒有新或舊的傷痕。" } }, { "doc_id": 108, "seg_id": 34, "translation": { "en": "We also agree that the trial judge has a basis to find that the incident has not caused any serious physical injury to P and that it will not cause any continuous serious adverse effect to him mentally or psychologically.", "zh-HK": "本庭亦同意原審法官有基礎認為事件沒有對“P”造成嚴重的身體傷害，亦不應會對他有任何持續性的精神或心理的嚴重負面影響。" } }, { "doc_id": 108, "seg_id": 35, "translation": { "en": "The severity of the present case lies in the serious breach of trust on the part of the applicant by offering her biological son to a paedophile to gratify his sexual desires for pecuniary advantage. As the conduct of the applicant is inhuman and unscrupulous, the sentence imposed by the court must mark the public abhorrence of the offence. (See paragraph 25(3) of the judgment of HKSAR v Chow Yuen Fai [2010] 1 HKC 181)", "zh-HK": "但本案的嚴重性是申請人嚴重違反誠信，為了金錢得益而將親生兒子供應給一名孌童癖患者淫辱。申請人的行為泯滅良知、有違天理，而法庭的判罰亦必須表明社會大眾不能容忍她的罪行 (見HKSAR v Chow Yuen Fai [2010] 1 HKC 181案判案書第 25(3) 段)。" } }, { "doc_id": 108, "seg_id": 36, "translation": { "en": "There is information showing that after being arrested, the applicant indicated to the prosecution she was willing to testify against “Mr Tong”, and she has given witness statements to the police on two separate occasions. The applicant also took the police to the residence of “Mr Tong” so that the police could arrest him and search his place.", "zh-HK": "有資料顯示被拘捕後，申請人向控方表示願意協助控方指控“唐某”，並前後兩次向警方提交證人供詞。申請人亦有帶領警員前往“唐某”的居所，令警員能拘捕他及搜查他的居所。" } }, { "doc_id": 108, "seg_id": 37, "translation": { "en": "Although the police could not charge “Mr Tong” for assaulting P sexually, further evidence of sexual abuse on other teenagers by “Mr Tong” was retrieved from the computer found at his residence. Eventually, “Mr Tong” was sentenced to a total of 9 years’ imprisonment for committing a number of offences involving possession and manufacturing of child pornography and three counts of unlawful sexual intercourse with a girl under the age of 16.", "zh-HK": "雖然警方未能檢控“唐某”性侵犯“P”，但從“唐某”居所搜得的電腦中，警方發現更多“唐某”淫辱其他青少年的罪證，最終“唐某”亦因為干犯數項涉及管有及製作兒童色情物品罪及三項與16歲以下的女童非法性交罪而被判入獄共9 年。" } }, { "doc_id": 108, "seg_id": 38, "translation": { "en": "We agree that even without the assistance of the applicant, the police could still find out the address of “Mr Tong” though it might take a longer time. Had the police not arrested “Mr Tong” and searched his residence as soon as possible, he would have had the opportunity to destroy the evidence against him and been able to go off scot-free. For the above reason, as far as the conviction of “Mr Tong” is concerned, the assistance given to the police by the applicant should be recognized.", "zh-HK": "本庭同意即使沒有申請人的協助，警方亦可以追查到“唐某”的地址，但需要時間可能較長。如警方未能盡快拘捕“唐某”及搜查其居所，則“唐某”會有機會銷毀對他不利的證據，令他能逍遙法外。因此，對“唐某”被定罪，申請人向警方提供的協助亦應予肯定。" } }, { "doc_id": 108, "seg_id": 39, "translation": { "en": "We have considered the sentences of other similar offences, and find that having regard to the relevant factors of the case as a whole, a starting point of 11 years is not manifestly excessive.", "zh-HK": "本庭有考慮過其他同類罪行的判刑，本庭認為以案件的整體有關因素而言，11 年的量刑基準並非明顯過重。" } }, { "doc_id": 108, "seg_id": 40, "translation": { "en": "However, in our view, it is also a mitigating factor that the applicant has assisted by providing information of “Mr Tong” to the police and taking the police officers to his residence for a search, which finally led to the conviction of “Mr Tong”. We are of the view that a reduction of 6 months in the term of sentence should be given to the applicant.", "zh-HK": "但本庭認為申請人向警方提供關於“唐某”的資料及親自帶領警員前往“唐某”居所搜查，令“唐某”最終被定罪一事亦是減刑因素。本庭認為應給予申請人減刑的幅度為6 個月。" } }, { "doc_id": 108, "seg_id": 41, "translation": { "en": "For the above reason, we allow the applicant’s application for leave to appeal against sentence and treat it as the appeal proper. The appeal is allowed and the sentence is reduced from a term of 11 years’ imprisonment to one of 10 years and 6 months.", "zh-HK": "因此，本庭批准申請人就判刑上訴，並視其申請為正式上訴。本庭裁定申請人上訴得直,並將其刑期由11 年減至10 年 6 個月。" } }, { "doc_id": 108, "seg_id": 42, "translation": { "en": "Mr Eddie Sean, SADPP, of the Department of Justice, for the respondent", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員單偉琛代表。" } }, { "doc_id": 108, "seg_id": 43, "translation": { "en": "Mr Bernard Yuen, instructed by Yam Johnnie, Jacky Lee & Co, assigned by the Legal Aid Department, for the applicant", "zh-HK": "申請人：法律援助署委派任其昌李鴻生律師行轉聘大律師袁‍國華代表。" } }, { "doc_id": 109, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 109, "seg_id": 2, "translation": { "en": "The applicant was charged with 8 counts of Procuring the Making Of an Entry in a Record of a Bank by Deception, contrary to section 18D of the Theft Ordinance, Cap. 210, Laws of Hong Kong. He pleaded not guilty. The case was tried by Deputy District Judge Johnny Chan, who convicted the applicant and sentenced him to 44 months’ imprisonment. The applicant applied for leave to appeal against conviction and sentence. After hearing, we dismissed his application. Our reasons are set out below.", "zh-HK": "申請人被控8項「以欺騙手段促致在銀行的記錄內記入記項」罪，違反《盜竊罪條例》（香港法例第210章）第18D條。申請人否認控罪。案件經區域法院暫委法官陳仲衡審理後，申請人被裁定罪名成立及被判處44個月監禁。申請人就定罪及刑期提出上訴許可申請。本庭在聆訊後駁回申請。以下是本庭的判案理由。" } }, { "doc_id": 109, "seg_id": 3, "translation": { "en": "8 counts of the offence", "zh-HK": "8項控罪" } }, { "doc_id": 109, "seg_id": 4, "translation": { "en": "Except the times, the amounts of money and the quantities of the goods, the particulars of offence of the 8 counts are identical in other aspects. The particulars of offence of the 1st count are as follows:", "zh-HK": "8項控罪的控罪詳情除了時間、銀碼及貨物數目不同外，其他內容一致，以下是第一項控罪的詳情：" } }, { "doc_id": 109, "seg_id": 5, "translation": { "en": "“LEUNG Wan-keung, on or about the 4th day of November 2005, in Hong Kong, dishonestly with a view to gain for himself or another or with intent to cause loss to another, procured the making of an entry in a record of a bank, namely a credit entry in the sum of $800,714.60 Hong Kong currency to a bank account numbered 094-842309-838 in the name of Mailland Limited held with the Hongkong and Shanghai Banking Corporation Limited, by deception, namely, by falsely representing to the DBS Bank (Hong Kong) Limited that 102,392 yards of cotton grey twill and 11,920 yards of cotton grey poplin had been sold and delivered in Hong Kong by Mailland Limited to Greenford Industries Limited.”", "zh-HK": "「梁雲強於或約於2005年11月4日在香港，為使自己或另一人獲益，或意圖使另一人遭受損失，而不誠實地以欺騙手段，即向星展銀行（香港）有限公司虛假地表示美盈豐有限公司已在香港售賣和交付102,392碼灰色棉製斜紋布及11,920碼棉質灰色府綢給添港實業有限公司，從而促致在銀行的紀錄內記入記項，即在以美盈豐有限公司名義持有的香港上海滙豐銀行有限公司帳戶（號碼094-842309-838）貸方，記入款項為港幣800,714.60元的記項。」" } }, { "doc_id": 109, "seg_id": 6, "translation": { "en": "The total amount of money involved in the 8 letters of credit was HK$5,684,457. This offence refers to a person who dishonestly, with a view to gain or with intent to cause loss, by any deception procures the making of an entry in a record of a bank. The focus is whether the applicant intended to cause, by deception, the DBS Bank to agree to pay out the money stated in the letters of credit, see HKSAR v. Cheung Kwun Yin (2009) 12 HKCFAR 568, paragraph 23.", "zh-HK": "該8項信用狀的總數為HK$5,684,457。該控罪是指一個人不誠實地，使人獲益或意圖使人遭受損失，以欺騙手段促致記項在銀行的紀錄內記入，其重點是申請人是否有意圖以欺騙手段促使星展銀行同意支付信用狀的款項，見HKSAR v. Cheung Kwun Yin (2009) 12 HKCFAR 568，第23段。" } }, { "doc_id": 109, "seg_id": 7, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 109, "seg_id": 8, "translation": { "en": "The prosecution case was quite straightforward. The applicant and his wife were the directors and shareholders of a company called Greenford Industries Limited (Greenford). Greenford opened on account with the DBS Bank (Hong Kong). Between 4 November 2005 and 15 June 2006, Greenford applied to the DBS Bank for issuing 8 letters of credit to a company called Mailland Limited (Mailland) for Greenford to make payments to Mailland for purchasing goods.", "zh-HK": "控方案情非常簡單。申請人與其妻子是一家名為「添港實業有限公司」（「添港」）的董事及股東。「添港」在香港星展銀行開設了一個戶口。2005年11月4日至2006年6月15日期間，「添港」向星展銀行申請發出八張信用狀給一間名為「美盈豐有限公司」（「美盈豐」）的公司作為「添港」向「美盈豐」繳付貨款之用。" } }, { "doc_id": 109, "seg_id": 9, "translation": { "en": "The information on the application forms for the letters of credit was filled in according to the instructions given by the applicant. In the ‘Price Basis’ columns on the application forms, he put down ‘Local Delivery’ as the applicable method, while other methods available for an applicant for documentary credit to choose included ‘FOB’, ‘CFR’, ‘CIF’, and ‘Others’. In the columns ‘Loading in charge / shipment from’ and ‘For transport to / shipment to’, he put down ‘Hong Kong’.", "zh-HK": "有關的信用狀申請書上的資料是根據申請人的指示而填報，他在信用狀申請書上的‘Price Basis’一欄填報適用的方式是‘Local Delivery’，其他可供信用狀申請者選擇的方式包括‘FOB’、‘CFR’、‘CIF’ 及 ‘Others’。他在‘Loading in charge/shipment from’ 及 ‘For transport to/shipment to’一欄填報‘Hong Kong’。" } }, { "doc_id": 109, "seg_id": 10, "translation": { "en": "On the basis of these application forms, the DBS Bank opened the letters of credit in question. Mailland furnished the stipulated documents and obtained from the bank the amounts of money stated in the letters of credit. The money was deposited in Mailland’s account with the Hongkong and Shanghai Banking Corporation. Subsequently, the money was transferred to the applicant’s bank account with the Bank of China (Hong Kong) and his wife’s accounts with the Hongkong and Shanghai Banking Corporation and the Citic Ka Wah Bank. Finally, the money was transferred to Greenford’s bank account.", "zh-HK": "星展銀行根據信用狀申請書批出信用狀。「美盈豐」提供信用狀所要求的文件從銀行獲得信用狀的款項。該筆款項存入「美盈豐」於香港上海滙豐銀行所開設的戶口。之後有關款項被轉帳至申請人在香港中國銀行及其妻子在香港上海滙豐銀行及中信嘉華銀行所開設的戶口，後該筆款項又被轉帳至「添港」的銀行戶口。" } }, { "doc_id": 109, "seg_id": 11, "translation": { "en": "The company registration documents of Mailland showed that Wei Guo Min [transliteration of 魏國民] was its sole shareholder and director. Mailland had [an] account with the Hongkong and Shanghai Banking Corporation. Only the applicant and his wife were the authorized signatories of this account. Wei Guo Min was not an authorized signatory of this account.", "zh-HK": "「美盈豐」的公司登記記錄顯示魏國民是它唯一的股東及董事。「美盈豐」在香港上海滙豐銀行開設戶口，而該戶口的授權簽名人就只有申請人及其妻子，魏國民並不是該戶口的授權簽名人。" } }, { "doc_id": 109, "seg_id": 12, "translation": { "en": "The prosecution’s allegation against the applicant was that according to the information supplied by the applicant and contained in the letter of credit application forms, the goods should be delivered in Hong Kong, but the applicant, knowing that no delivery had ever taken place in Hong Kong, still allowed Mailland to ask the bank on the strength of the letters of credit to pay out the money, resulting in Mailland obtaining the money.", "zh-HK": "控方針對申請人的指控是根據申請人提供的信用狀申請書內容，有關的貨物應該在香港交收，但申請人在明知有關貨物從沒有在香港交收的情況下仍然讓「美盈豐」根據信用狀向銀行申請支付及獲得有關的款項。" } }, { "doc_id": 109, "seg_id": 13, "translation": { "en": "Applicant’s defence", "zh-HK": "申請人的答辯理由" } }, { "doc_id": 109, "seg_id": 14, "translation": { "en": "The applicant admitted that Mailland had never delivered the goods to Greenford in Hong Kong. His explanation was that Greenford purchased grey cloths from Mailland and then sold the grey cloths to [a] bleaching and dying factory in the Mainland. Mailland was not a manufacturer of the grey cloths. After Greenford contracted to buy the goods from Mailland, Mailland would place orders with [a] weaving factory in the Mainland for the goods. After the weaving factory manufactured the cloths, it would send the cloths to [a] bleaching and dyeing factory in the Mainland according to instructions. After that, the bleaching and dyeing factory would follow the applicant’s instructions to pay Mailland the monies for the goods. After Mailland received the payments, the applicant and Mr. Wei would then check their accounts to work out the balances between them. The applicant said he did not know that it was improper to have the delivery done in the Mainland without transporting the goods to Hong Kong. He thought that it was a waste of time and money to transport the goods to Hong Kong and then back to the Mainland. He stated that he put down ‘Shipment to Hong Kong’（貨物運往香港）and ‘Shipment from Hong Kong’（貨物由香港運到）in the letter of credit application forms because both Greenford and Mailland were Hong Kong companies. As to why he chose to use the term ‘Local Delivery’ (本地支付) in the ‘Price Basis’（價錢方式）columns, his reason was that he had no other choice; he thought that ‘Local Delivery’ meant land transport. The staff members of Greenford were responsible for preparing supporting documents, including invoices, receipts for the goods and ‘Collection Order’, so that Mailland could collect the payments stated in the letters of credit from the bank. The applicant said that he did not know who signed in the column of seal [and/or] signatory of Mailland in the ‘Collection Order’, but he confirmed that there were only two authorized signatories of Mailland, and they were he and his wife.", "zh-HK": "申請人承認「美盈豐」從沒有在香港將有關貨物送交「添港」。申請人說「添港」向「美盈豐」購買坯布，然後將這些坯布賣給內地的漂染廠。「美盈豐」不是坯布的生產商，當「添港」向「美盈豐」購買貨物後，「美盈豐」就會向內地織布廠訂貨，織布廠生產布匹後便會按照指示把坯布送到內地的漂染廠，之後漂染廠便會按申請人的指示向「美盈豐」繳付貨款。在「美盈豐」收取貨款後申請人便會與魏先生對數。申請人說他不知道貨物沒有運到香港而在內地交收的做法有不妥之處，他認為將貨物運到香港再運返內地是浪費時間及金錢。申請人指他在信用狀申請書上填報 ‘Shipment to Hong Kong’ (貨物運往香港)及‘Shipment from Hong Kong’ (貨物由香港運到)是因為「添港」及「美盈豐」均是香港的公司。而就‘Price Basis’(價錢方式)一項，他選用‘Local Delivery’(本地交付)是因為他別無選擇，他認為‘Local Delivery’ 是指陸運。「添港」的職員負責為「美盈豐」向銀行收取信用狀的款項而準備有關的支持文件，包括發票、貨物收據及‘Collection Order’。申請人說他不知道是誰在‘Collection Order’的「美盈豐」印鑑簽署人一欄上簽名，但他確認「美盈豐」的認可簽署人只有他和他的妻子兩人。" } }, { "doc_id": 109, "seg_id": 15, "translation": { "en": "Deputy Judge Chan’s findings", "zh-HK": "陳法官的裁決" } }, { "doc_id": 109, "seg_id": 16, "translation": { "en": "Deputy Judge Chan did not accept the story that genuine transactions were carried out between Greenford and Mailland. He found that the transactions were fictitious and that the applicant applied to the DBS Bank for letter of credit facilities by inventing such fictitious transactions. The applicant knowingly represented to the DBS Bank that an arrangement, as stated in the information put down in the application forms, was in existence by which Mailland sold some cloths to Greenford and the goods were bought, sold and delivered in Hong Kong. Deputy Judge Chan found that what the applicant did was to obtain credit facilities from the bank by deception, and that the applicant was dishonest because he knew very well that the transactions did not exist at all and that the goods in question were never delivered in Hong Kong.", "zh-HK": "陳法官不接納申請人提出「添港」與「美盈豐」有實際買賣交易的說法。陳法官指有關的交易是虛假的，申請人是以虛假交易向星展銀行申請信用狀貸款。申請人是在知情下作出「添港」向星展銀行表示「美盈豐」有如申請書上所填報的資料將布匹賣給「添港」及有關貨物是在香港售賣及交付的安排。陳法官認為申請人的行為是以欺騙手段取得銀行的貸款及申請人是個不誠實的人，因為他是明知交易根本不存在及有關貨物從未在香港交收。" } }, { "doc_id": 109, "seg_id": 17, "translation": { "en": "Deputy Judge Chan pointed out that even the applicant’s own version of the facts, i.e. he put down ‘Shipment from Hong Kong’ and ‘Shipment to Hong Kong’ in the letter of credit application forms, and put down ‘Local Delivery’ in the ‘Price Basis’ columns showed that he was aware of the falsity of the contents of the documents and knew that if the bank learnt of the fact that the goods were delivered in the Mainland and had never been transported to Hong Kong, it would make enquiries and the result of the enquiries would affect its decision as to whether it would grant the letter of credit facilities.", "zh-HK": "陳法官指就算單單根據申請人的說法，他在信用狀申請書上填報‘Shipment from Hong Kong’, ‘Shipment to Hong Kong’ 及在‘Price Basis’ 一欄上填報‘Local Delivery’已證明他是知道有關文件之內容實屬虛假及他是明知若銀行得悉有關貨物是在內地交收及從沒有運到香港，它是會作出查詢，而查詢結果亦會影響銀行是否會批出信用狀的貸款。" } }, { "doc_id": 109, "seg_id": 18, "translation": { "en": "Deputy Judge Chan found that the criterion laid down in Ghosh was met, namely an honest and decent person and even the applicant himself would be aware that the way in which he handle these matters was dishonest.", "zh-HK": "陳法官裁定根據Ghosh一案的測試，一名誠實正直的人，甚至是申請人本人都應該知道他這個處事方式是不誠實的手法。" } }, { "doc_id": 109, "seg_id": 19, "translation": { "en": "Prosecution’s position at trial", "zh-HK": "控方審訊時的立場" } }, { "doc_id": 109, "seg_id": 20, "translation": { "en": "Mr. Tony Ko, counsel for the applicant, pressed the point that at the trial the prosecution repeatedly made it clear to the court that the prosecution’s allegation against the applicant was not that no genuine transaction was carried out in accordance with the contracts of sale and purchase of goods referred to in the letters of credit; the allegation was that the goods were never shipped to or from Hong Kong, nor were they delivered in Hong Kong and that was contrary to the information put down in the letters of credit application forms. The reason for the applicant’s doing so was that he wanted the bank to issue the letters of credit. Mr. Ko argued that Deputy Judge Chan should not act counter to the prosecution’s position, and should not make the finding that in this case no genuine transaction was carried out without giving the applicant an opportunity to offer an explanation on this issue.", "zh-HK": "代表申請人的高東利大律師指審訊時控方多次向陳法官清楚表明控方針對申請人的指控不是指涉及信用狀的貨物買賣合約沒有進行過任何實質交易，而是貨物根本沒有在香港付運交收。這與信用狀申請書上所填報的資料不同，申請人這樣做是希望銀行批出有關的信用狀。高大律師指陳法官不應該與控方的立場背道而馳，在未給與申請人機會就該議題作出辯解便裁定案件沒有進行過實質的貨物交易。" } }, { "doc_id": 109, "seg_id": 21, "translation": { "en": "Our views", "zh-HK": "本庭意見" } }, { "doc_id": 109, "seg_id": 22, "translation": { "en": "We agree that at the trial the position adopted by the prosecution was not that “no such transactions had taken place”. If Deputy Judge Chan used “no such transactions had taken place” as the basis of the conviction, he should have first allowed the applicant to given further explanation in relation to this basis, but he did not do that. We therefore find that the finding made by Deputy Judge Chan that “no such transactions had taken place” was wrong. However, we do not think that such finding will render the conviction of the applicant unsafe or unsatisfactory. Our view is that even if Deputy Judge Chan had not made such finding, there was still an abundance of evidence in this case to support his finding that the applicant by deception dishonestly caused the DBS Bank to pay the monies to Mailland. The reasons are as follows:", "zh-HK": "本庭同意控方在審訊時所持的立場並不是「交易不存在」。若陳法官以「交易不存在」為定罪基礎的話，他應該先讓申請人就該基礎提出進一步的辯解，但他並沒有這樣做，故此本庭裁定陳法官有關「交易不存在」的裁決是錯誤的，但本庭不認為這個裁決會令申請人的定罪裁決變得不安全及不穩妥。本庭認為就算陳法官沒有作出上述的裁決，案件仍有充分的證據來支持他裁定申請人以不誠實及以欺騙手段促使星展銀行支付款項給「美盈豐」。理由如下：" } }, { "doc_id": 109, "seg_id": 23, "translation": { "en": "(1)The applicant had been running the cloth business for 20 years and had experience in using letters of credit to buy and sell goods. He ought to know that when the bank was considering whether it should approve an application for document credit, it would make its decision on the basis of the information supplied by him. If the bank had learned that what really was going on was different from the information contained in the application forms, it would surely have approached with great caution the question of whether the applications should be approved. It was clearly stated in the application forms that the goods were to be shipped from and to Hong Kong. This obviously meant that the goods were to be delivered here, and did not mean that both the buying party and the selling party were Hong Kong companies. Furthermore, “Local Delivery” could not possibly be interpreted as land transport. The term “Local Delivery” (本地交付) was consistent with the information provided in the previous column, i.e. the place of delivery and receipt of the goods was Hong Kong. If the actual place of delivery was the Mainland, this could result in the bank suffering loss. In this case, when Greenford applied for the letters of credit, it at the same time submitted a trust receipt to offer the goods involved in this case to the DBS Bank as security. If the bank finds it necessary to exercise its right as a creditor to dispose of the security, but then finds that the goods are not in Hong Kong at all, that situation will be highly detrimental to its interests. This shows that the contents of the application forms contained misrepresentation and could directly infringe upon the interests of the bank, see HKSAR v. Chan Kar Leung & Others (CACC 287/2004), paragraphs 35 and 36; HKSAR v. Lee Wing Kan [2007] 3 HKC 368, paragraph 60 and HKSAR v. Chan Wai San [2008] 4 HKLRD 18, paragraph 153. It is out of the question that the applicant, being a person well experienced in doing business, could regard that this way of doing things was not improper.", "zh-HK": "(1)申請人從事布匹生意二十年，亦有使用信用狀買賣貨物的經驗，他理應知道銀行在考慮批出信用狀申請時是會根據他提供的資料作出決定。若果銀行知道真實的情況與信用狀申請書上的資料不同，銀行一定會審慎考慮應否批准該申請。信用狀申請書清楚說明有關貨物是從香港運往香港，這明顯是指貨物是在本地交收，而不是指買賣雙方都是香港公司，而‘Local Delivery’一詞更不可能被解釋為陸運，‘Local Delivery’「本地交付」這一詞與上項所填報的香港是交貨及收貨地點一脈相承。若果貨物實際上是在內地交收，這是有可能令銀行蒙受損失。在本案「添港」申請信用狀時同時提交一份「信託收據」(trust receipt)將涉案的貨物抵押給星展銀行，若星展銀行需要行使債權人權利處理抵押品時，但鑑於抵押品根本不在香港，這會直接損害它的利益。這亦表示信用狀申請書的內容涉及虛假陳述及會直接令銀行的利益受損，見HKSAR v. Chan Kar Leung & Others (CACC 287/2004)，第35—36段，HKSAR v. Lee Wing Kan (李榮根) [2007] 3 HKC 368，第60段及 HKSAR v. Chu Wai San [2008] 4 HKLRD 18，第153段。申請人作為一名有豐富經商經驗的人士絕不可能認為他的做法沒有不妥之處。" } }, { "doc_id": 109, "seg_id": 24, "translation": { "en": "(2)The applicant admitted that he was responsible for looking for a place in Hong Kong to be the registered address of Mailland, but he did not use the registered address of Greenford as the registered address of Mailland. The reason for his not doing so was that he did not find it necessary to do so. However, he said he would send his staff members to the registered address of Mailland to collect letters posted to Mailland. We consider it to be unnecessary and superfluous conduct. The applicant admitted that his concern was that if the DBS Bank noticed that the applicant and the beneficiary of the letters of credit used the same address, they would make enquiries.", "zh-HK": "(2)申請人承認他負責為「美盈豐」尋覓香港的註冊地址，但他沒有將「添港」的地址作為「美盈豐」的註冊地址的理由是他沒有必要這樣做，但他卻說他會指派職員到「美盈豐」的註冊地址收取寄給「美盈豐」的信件。本庭認為這是多此一舉的做法。申請人承認他恐怕星展銀行在得悉信用狀的申請人與受益人是使用同一的地址後會作出調查。" } }, { "doc_id": 109, "seg_id": 25, "translation": { "en": "(3)Mr. Wei Guo Min was the sole director and shareholder of Mailland, but strangely, he could not operate Mailland’s bank account because he was not an authorized signatory of that account. On the contrary, the applicant and his wife, even though they were neither the directors nor the shareholders of Mailland, were the authorized signatories of the account. Such arrangement was illogical. The applicant on the one hand tried hard to distance himself from Mailland, but on the other hand the financial transactions of Mailland were actually under his control. This leads to the question: why was the applicant doing this? These arrangements could properly be the basis on which the court made the finding that the applicant had the dishonest intention to gain benefits from the DBS Bank.", "zh-HK": "(3)雖然魏國民先生是「美盈豐」的唯一董事及股東，但奇怪的是他不可以使用「美盈豐」的銀行戶口，因為他不是該戶口的認可簽署人。相反地，申請人和他的妻子雖然不是「美盈豐」的董事或股東但卻是該戶口的認可簽署人，這是有異於常理的安排。申請人一方面刻意與「美盈豐」保持距離，但另一方面他又實際地操控着「美盈豐」的財政運作。問題是申請人為何這樣做呢？法庭是可以這些安排來裁定申請人以不誠實的意圖從星展銀行獲得利益。" } }, { "doc_id": 109, "seg_id": 26, "translation": { "en": "(4)The monies which Mailland obtained from the letters of credit, after passing through the accounts of the applicant and his wife in a roundabout way, ended up in the account of Greenford. As far as the appearances go, Greenford did not pay Mailland any money for buying the goods, because eventually Greenford obtained from Mailland’s bank account the payments relating to the sale of the goods from Mailland to Greenford. Deputy Judge Chan rejected the evidence that the applicant and Mr. Wei had checked their accounts to work out the balances between them after transactions were done between Mailland and Greenford.", "zh-HK": "(4)「美盈豐」從信用狀所獲得的款項輾轉經申請人及其太太的戶口最終存入「添港」的戶口。從表面看來「添港」根本沒有向「美盈豐」支付過購買貨物的貨款，因為「添港」最終從「美盈豐」的銀行戶口獲得「美盈豐」出售貨物給「添港」的貨款。陳法官亦不接納申請人與魏先生有就「美盈豐」與「添港」交易對數之說法。" } }, { "doc_id": 109, "seg_id": 27, "translation": { "en": "Although Deputy Judge Chan erroneously found that there were no underlying transactions, the evidence set out above could support his finding that the applicant acted dishonestly and as a result the bank was deceived. Accordingly, we dismiss the application for leave to appeal against conviction.", "zh-HK": "雖然陳法官錯誤裁定案件沒有實質交易的基礎，但上述的的證據是可以用於支持陳法官作出申請人處事不誠實致令銀行受騙的裁決。本庭因此駁回針對定罪的申請。" } }, { "doc_id": 109, "seg_id": 28, "translation": { "en": "Sentence", "zh-HK": "判刑" } }, { "doc_id": 109, "seg_id": 29, "translation": { "en": "For charges 1, 3, 4, 5, 6, 7 and 8, Deputy Judge Chan used two years as the starting point. Two months were deducted on account of the applicant’s clear record, so the sentence for each count was 22 months. As for charge 2, Deputy Judge Chan used 18 months as the starting point. Likewise, two months were discounted for the applicant’s clear record, and the sentence was 16 months. The sentences for charges 1 to 4 were ordered to run concurrently (i.e. 22 months), and so were the sentences for charges 5 to 8 (i.e. 22 months); but the sentences for charges 5 to 8 were to run consecutively to those for charges 1 to 4, thus making a total of 44 months (i.e. 3 years and 8 months) imprisonment.", "zh-HK": "就第1、3、4、5、6、7、8項控罪，陳法官以兩年作為量刑基準，因申請人沒有前科而扣減兩個月，每項控罪的刑期為22個月。另外，陳法官以18個月作為第2項控罪的量刑基準，同樣地因申請人沒有前科而扣減兩個月，刑期為16個月。陳法官命令控罪1至4的刑期同期執行（即22個月），而控罪5至8的刑期（即22個月）亦是同期執行，但控罪5至8的刑期就須與控罪1至4分期執行，總刑期為44個月（即3年8個月）監禁。" } }, { "doc_id": 109, "seg_id": 30, "translation": { "en": "It was not proven that genuine transactions did not exist in this case and the evidence showed that ultimately the bank did not suffer any loss, but we do not think that these facts can affect Deputy Judge Chan’s sentencing in any way. It is clear that the applicant obtained from the bank funds of the amount of HK$5,684,457 by deception and the period over which he committed these crimes was as long as 6 months. What he did would adversely affect Hong Kong’s reputation as a financial and banking centre and the bank’s interests. In our judgment, the sentence of 3 years and 8 months’ imprisonment is appropriate; we therefore dismiss the application for leave to appeal against sentence.", "zh-HK": "雖然控方未能證明本案沒有實質的買賣交易而證據顯示銀行最終沒有蒙受損失，但本庭不認為這會影響陳法官的量刑。明顯地，申請人是以欺詐的手法來獲得銀行HK$5,684,457元的貸款而犯案期長達6個月。申請人的手法是會令香港作為財經及銀行金融中心的信譽及銀行的利益受損，本庭認為3年8個月監禁的刑期是適當的，故此本庭駁回申請人針對刑期的上訴許可申請。" } }, { "doc_id": 109, "seg_id": 31, "translation": { "en": "Mr. Robert Lee, SC, Deputy Director of Public Prosecutions and Miss Eva Chan, Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司副刑事檢控專員李紹強資深大律師及檢控官陳冰華代表。" } }, { "doc_id": 109, "seg_id": 32, "translation": { "en": "Mr. Tony Ko, instructed by S.K. Wong & Co., for the Applicant.", "zh-HK": "申請人：由黃萃群律師行轉聘高東利大律師代表。" } }, { "doc_id": 110, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 110, "seg_id": 2, "translation": { "en": "The applicant was charged with one count of robbery. He was convicted and sentenced to 4 years’ imprisonment by Deputy District Judge Kwok (“Judge Kwok”). The applicant applied for leave to appeal against conviction. At the conclusion of the hearing, we allowed the application and, treating it as the appeal, allowed the appeal and quashed the conviction. The reasons for our judgment are set out below.", "zh-HK": "申請人被控一項搶劫罪。區域法院暫委法官郭啟安裁定申請人罪名成立及判處他四年監禁。申請人就定罪提出上訴許可申請。本庭聆訊後批准申請，視申請為正式上訴及撤銷定罪。這是本庭的判決理由。" } }, { "doc_id": 110, "seg_id": 3, "translation": { "en": "The facts", "zh-HK": "案情" } }, { "doc_id": 110, "seg_id": 4, "translation": { "en": "According to the “Summary of the Prosecution’s Case” in Judge Kwok’s Reasons for Decision, PW1 and the applicant both lived in Sun Chui Estate, Shatin and had known each other for many years. At around 6:20 p.m. on 19 February 2006, PW1 came across the applicant in the said housing estate. The applicant put a hand on PW1’s shoulder and said, “I’m holding a knife. I’m in need of money. Something happened … I just want to take the phone now.” PW1 felt that a hard object was pressing against his waist. After the applicant said the above, PW1 asked him whether he only wanted to take away his phone. The applicant answered, “Yes.” PW1 indicated agreement and pointed to his mobile phone which was placed in a leather case worn around his waist. The applicant took away PW1’s phone and left the scene. According to PW1, when the applicant left, he was holding PW1’s mobile phone with one hand and a shiny silver-coloured object which looked like a knife with the other.", "zh-HK": "根據郭法官的判決理由書內的「控方證據撮要」，控方第一證人(‘第一證人’)是在沙田新翠邨居住。申請人也是在新翠邨居住的，兩人認識了多年。2006年2月19日約下午六時二十分，他在該屋邨偶然遇到申請人。申請人將一隻手擱在第一證人的肩膊上，並對他說：「我而家攞住把刀嘅，我等錢使，有啲事…….我而家淨係想攞部電話嘅啫。」第一證人當時感到有一硬物壓着他的腰部。當申請人說完這番話後，第一證人就問他是不是只是想拿走他的電話，申請人回答他：「是」。第一證人表示同意，並用手指着他腰間的一個皮套內的手提電話。申請人拿走了第一證人的電話及離開現場。第一證人稱當申請人離開時他一手拿着第一證人的手提電話，另一手拿着一張閃爍銀色類似刀的物體。" } }, { "doc_id": 110, "seg_id": 5, "translation": { "en": "PW1 did not cry out for help after the applicant had taken away his phone. After the incident, he went to see his elder brother, i.e. PW2, who had also known the applicant for many years. Subsequently, PW1 and PW2 tried to find the applicant at his address in Sun Chui Estate, only to discover that he no longer lived there. They then went to a police station nearby to report the case. On the night in question, PW1 called a friend of his (i.e. PW3) and told him that the applicant had taken away his phone and used a knife.", "zh-HK": "第一證人在申請人拿走他的電話後沒有高聲呼救，他在事發後前去找他的哥哥，即控方第二證人（‘第二證人’）。第二證人也認識了申請人多年。第一及第二證人之後到申請人在新翠邨的住所找他，但發現他已經不在那地方居住，兩人於是到附近的警署報警。在事發當晚第一證人致電一位朋友，即控方第三證人（‘第三證人’）告訴他電話被申請人拿走了及申請人使用刀的情況。" } }, { "doc_id": 110, "seg_id": 6, "translation": { "en": "At around 7:30 p.m. on 1 March 2006, PW3 came across the applicant near Che Kung Temple in Shatin. PW3 questioned the applicant as to the whereabouts of PW1’s phone and called PW2. The applicant tried to escape, and PW3 gave chase and caught him up. The two of them had a scuffle, and the applicant lost consciousness and fell onto the ground. Subsequently the police arrived and arrested the applicant.", "zh-HK": "2006年3月1日下午約七時半，第三證人在沙田車公廟附近碰見申請人。第三證人質問申請人第一證人的電話下落，並致電第二證人。申請人趁機逃走，第三證人在追上他時與他發生糾纏，申請人昏迷及跌倒在地上，警察後來到場拘捕申請人。" } }, { "doc_id": 110, "seg_id": 7, "translation": { "en": "The applicant elected not to give evidence. His defence was that the so-called robbery was entirely made up by the three witnesses. The applicant alleged that he had borrowed money from PW2 but had not made repayment, and that he had sought assistance from the police because PW2 had threatened and blackmailed him. All the three witnesses have criminal records.", "zh-HK": "申請人選擇不作供自辯。他的答辯理由是整件所謂搶劫事件是由三名證人合謀捏造的。申請人稱他曾向第二證人借貸，但沒有還款。他曾因第二證人對他作出恐嚇勒索的行為報警求助。三名證人均有刑事記錄。" } }, { "doc_id": 110, "seg_id": 8, "translation": { "en": "Judge Kwok held that the three prosecution witnesses were credible witnesses. He was satisfied that the offence was proved beyond reasonable doubt and therefore convicted the applicant.", "zh-HK": "郭法官接納三名控方證人為可信的證人，他認為案情是毫無合理疑點，所以判處申請人罪名成立。" } }, { "doc_id": 110, "seg_id": 9, "translation": { "en": "Legal principle", "zh-HK": "法律原則" } }, { "doc_id": 110, "seg_id": 10, "translation": { "en": "In dealing with cases concerning findings of fact, the appellate court adopts the legal principle that the trial judge had the opportunity to listen to the witnesses’ evidence and observe their facial expressions and demeanour when they gave evidence. Therefore, unless the findings of fact made by the trial judge are inconsistent with some crucial evidence or the trial judge has overlooked some crucial evidence, the appellate court will not overturn the trial judge’s findings of fact and replace them with the appellate court’s own findings on the facts. Clearly, this principle does not mean that the appellate court is bound to accept all findings of fact made by the trial judge. If the appellate court considers that the trial judge has not made use of his advantageous position to thoroughly deal with all the material contradictions in the evidence before him, and such evidence would directly affect the outcome of the case, then the appellate court is entitled to reject the trial judge’s findings in this regard.", "zh-HK": "上訴法庭處理案件涉及事實裁決的法律原則是原審法官有機會聆聽及觀察證人在作證時的神情和舉止，因此，除非原審法官作出的事實裁決與某些重要證據不符或是忽略了某些重要的證據，否則上訴法庭是不會推翻原審法官所作出的事實裁決，而代之以上訴法庭對事實了解的裁決。明顯地，這個原則並不表示上訴法庭在所有的事實裁決案件中都必須接納原審法官的裁決，如上訴法庭認為原審法官並沒有利用他本身的有利條件去全面處理案件中具關鍵性的證據衝突，而這些證據是會直接影響裁決的話，上訴法庭是有權拒絕接納原審法官這一方面的裁決。" } }, { "doc_id": 110, "seg_id": 11, "translation": { "en": "Neither the appellate court nor the law itself requires the trial judge to account for his treatment of each and every discrepancy in the evidence. Indeed, such a requirement would be unnecessarily meticulous and impractical. However, where there is a material contradiction in the evidence, the trial judge must clearly set out his analysis of the issues involved and his reasons for accepting the controversial evidence.", "zh-HK": "上訴法庭是不會要求原審法官如何處理每項證據不一致的情況作出交待。法律亦沒有這個規定，況且這個做法是吹毛求疵、不切實際的。但當證據存有關鍵性的衝突時原審法官是必須清楚說明他就有關的問題作出了甚麼分析及他接納具爭議性的證據的理由何在。" } }, { "doc_id": 110, "seg_id": 12, "translation": { "en": "PW1’s evidence", "zh-HK": "第一證人的證供" } }, { "doc_id": 110, "seg_id": 13, "translation": { "en": "We overturned Judge Kwok’s decision because he had not thoroughly dealt with or analysed the inconsistencies and contradictions in PW1’s evidence.", "zh-HK": "本庭推翻郭法官裁決的原因是郭法官沒有充分處理及分析第一證人的證供出現不一致及衝突之處。" } }, { "doc_id": 110, "seg_id": 14, "translation": { "en": "Inconsistencies in the evidence at trial", "zh-HK": "庭上證供的分歧" } }, { "doc_id": 110, "seg_id": 15, "translation": { "en": "The first question concerns PW1’s evidence that the applicant had said to him, “I’m holding a knife. I’m in need of money. Something happened … I just want to take the phone now.” During examination-in-chief, PW1 repeated 4 times that the applicant had told him he had a knife. The relevant evidence is extracted below:", "zh-HK": "首先，這涉及第一證人指申請人對他說：「我而家攞住把刀嘅，我等錢使，有啲事……我而家淨係想攞部電話嘅啫」的證供。第一證人在控方律師主問時曾經四次重複說申請人對他說他是持有刀的，有關證供的節錄如下：" } }, { "doc_id": 110, "seg_id": 16, "translation": { "en": "Q: Do you have anything to add about how you felt, apart from the poking and the feeling that something was pressing against you?", "zh-HK": "問 : 仲有冇可唔可以補充一下嗰個感覺，除咗篤同埋「銀」之外，係點樣樣?" } }, { "doc_id": 110, "seg_id": 17, "translation": { "en": "A: No.", "zh-HK": "答 : 冇。" } }, { "doc_id": 110, "seg_id": 18, "translation": { "en": "Q: Right. Then was there any conversation, or was there – anything happened?", "zh-HK": "問 : 好，咁樣跟住又有冇咩嘢對話呀，或者有咩嘢嘅 -- 發生咗啲咩嘢事咁呢?" } }, { "doc_id": 110, "seg_id": 19, "translation": { "en": "A: Then (he) said, ‘I’m holding a knife.’", "zh-HK": "答 : 跟住就話「我而家攞住把刀。」" } }, { "doc_id": 110, "seg_id": 20, "translation": { "en": "Q: Say again.", "zh-HK": "問 ：講多次。" } }, { "doc_id": 110, "seg_id": 21, "translation": { "en": "A: ‘I’m holding a knife.’", "zh-HK": "答 : 「我而家攞住把刀。」" } }, { "doc_id": 110, "seg_id": 22, "translation": { "en": "Q: Who did you hear was saying this?", "zh-HK": "問 : 你聽到邊個講呀 ?" } }, { "doc_id": 110, "seg_id": 23, "translation": { "en": "A: He said ‘It’s a knife that’s poking (you).’", "zh-HK": "答 ： 佢話「篤住嗰把刀嚟嘅。」咁樣。" } }, { "doc_id": 110, "seg_id": 24, "translation": { "en": "Q: Yes.", "zh-HK": "問 :係。" } }, { "doc_id": 110, "seg_id": 25, "translation": { "en": "…", "zh-HK": "………….." } }, { "doc_id": 110, "seg_id": 26, "translation": { "en": "Judge: He said, ‘I’m holding a knife.’", "zh-HK": "官 : 佢話「我而家攞住把刀。」" } }, { "doc_id": 110, "seg_id": 27, "translation": { "en": "A: Yes.", "zh-HK": "答 :係。" } }, { "doc_id": 110, "seg_id": 28, "translation": { "en": "Q: Eh, you heard this?", "zh-HK": "問 : 哦，你聽到咁樣呢一句說話?" } }, { "doc_id": 110, "seg_id": 29, "translation": { "en": "A: Yes.", "zh-HK": "答 : 係。" } }, { "doc_id": 110, "seg_id": 30, "translation": { "en": "Q: Just now you said someone (‘E.T.’) had taken away your phone.", "zh-HK": "問 : 啱啱你話有人(「E.T.」)就攞咗你個電話走喇。" } }, { "doc_id": 110, "seg_id": 31, "translation": { "en": "A: Hm.", "zh-HK": "答 :唔。" } }, { "doc_id": 110, "seg_id": 32, "translation": { "en": "Q: Were you willing or not willing to give him that? What was the situation?", "zh-HK": "問 : 你係願意畀佢還是唔願意畀佢，係咩嘢情況?" } }, { "doc_id": 110, "seg_id": 33, "translation": { "en": "A: He told me that I – he told me that he had a knife, and I really felt pain. Something was pressing against me. I dared not guess if it really was a knife. At that moment I was really not – (I) mean I reluctantly let him take away my phone.", "zh-HK": "答 : 佢話畀我聽我 - - 佢話畀我聽有刀，同埋我感覺到真係痛，有嘢「銀」住咗我，我唔敢估係咪真係刀，我嗰一刻係好唔 - - 即係唔願意地咁樣畀佢攞咗部電話。" } }, { "doc_id": 110, "seg_id": 34, "translation": { "en": "…", "zh-HK": "………….." } }, { "doc_id": 110, "seg_id": 35, "translation": { "en": "Q: Let me ask you this. He was just 5 or 6 steps away from you. How come you did not give chase – do something you would normally do upon being robbed?", "zh-HK": "問 : 我就問一問你喇，嗱，人哋又離開你五、六步嘅啫，咁點解你唔追番 - - 做一啲有人就搶咗你嘢嘅正常反應呢?" } }, { "doc_id": 110, "seg_id": 36, "translation": { "en": "A: Because I saw he was carrying a silver-coloured object, and he told me that he had a knife. I dared not – (I) mean rush forward to do anything. I feared he might hurt me.", "zh-HK": "答 ：因為我所見到佢銀色嘅嘢，同埋佢話畀我聽佢有把刀，我唔敢 - - 即係話衝上去點樣做呀，我驚佢傷害到我。" } }, { "doc_id": 110, "seg_id": 37, "translation": { "en": "…", "zh-HK": "………….." } }, { "doc_id": 110, "seg_id": 38, "translation": { "en": "Q: Well, you have said that you feared he might hurt you with the knife, and therefore you did not give chase even when he was 5 or 6 steps away from you?", "zh-HK": "問 ：哦，你曾經講過就驚人哋有把刀傷害你，所以就人哋離開你五、六步呢,你都唔追喇。" } }, { "doc_id": 110, "seg_id": 39, "translation": { "en": "A: Hm.", "zh-HK": "答 : 唔。" } }, { "doc_id": 110, "seg_id": 40, "translation": { "en": "Q: But then you went to his residence by yourself. Did you not fear he might stab you with a knife? What was in your mind?", "zh-HK": "問 :但係而家你就自己走上去人哋住所嗰度,你唔驚人哋攞刀插你咩?你係點?" } }, { "doc_id": 110, "seg_id": 41, "translation": { "en": "A: At the moment – I was by myself at the beginning. At that moment I was confused. He said he had a knife. (I) mean I was frightened. Then my elder brother – how should I put it? I was not frightened when I was with him. I mean when someone was there you could take care of each other. That was how I felt.", "zh-HK": "答 ：嗰一刻都係 -- 初初嗰陣時我得一個人，我嗰一刻都亂晒，佢話有刀咁樣，即係驚咗，咁我阿哥就 -- 點講呀? 同佢一齊，即係我覺得唔驚囉,即係多個人咁樣，即係有個照應咁樣囉，即係畀我嘅感覺。" } }, { "doc_id": 110, "seg_id": 42, "translation": { "en": "…", "zh-HK": "…………..                                                                      ’" } }, { "doc_id": 110, "seg_id": 43, "translation": { "en": "However, under cross-examination, PW1 said that the applicant had not told him he was holding a knife. The relevant questions and answers are extracted below:", "zh-HK": "但第一證人在接受申請人律師盤問時卻稱申請人沒有對他說過他是持有刀的。有關的提問及答覆節錄如下：" } }, { "doc_id": 110, "seg_id": 44, "translation": { "en": "Q: Then (he) went straight to the point and said ‘I’m holding a knife. I’m in need of money.’ Is that what (you) mean?", "zh-HK": "問 :跟住就單刀直入話「我而家攞住把刀，我等錢使。」咁樣，係咪咁嘅意思?" } }, { "doc_id": 110, "seg_id": 45, "translation": { "en": "A: Hm, no, he did not say that. I did not express it clearly because I was dozing off outside before I came in, and at that moment I – well, I mean I did not express it clearly, I mean he – I felt that something was pressing against me.", "zh-HK": "答 :唔，唔係，佢就冇咁講，因為表達得唔好呀我，因為我入嚟嗰陣時，我喺出面係瞌著咗，嗰一刻我 - - 係囉，即係我表達得唔好囉，即係佢就 - - 我係感覺到有啲嘢「銀」住我咁囉。" } }, { "doc_id": 110, "seg_id": 46, "translation": { "en": "Q: I do not really understand what you mean. I just quoted what you had said, what you said this morning. Do you now say that he did not say anything like that?", "zh-HK": "問 ：我唔係好明你嘅意思呀。剛才呢番說話係我引述番你講個喎，你今朝講個喎,咁你而家係咪話佢冇咁講過吖?" } }, { "doc_id": 110, "seg_id": 47, "translation": { "en": "A: Hm, (he) did not.", "zh-HK": "答 ：唔，冇。" } }, { "doc_id": 110, "seg_id": 48, "translation": { "en": "Q: (He) did not say that?", "zh-HK": "問 ：冇咁講過？" } }, { "doc_id": 110, "seg_id": 49, "translation": { "en": "A: Hm.", "zh-HK": "答 ：唔。" } }, { "doc_id": 110, "seg_id": 50, "translation": { "en": "Q: If he did not say that, what actually did he say?", "zh-HK": "問 ：咁佢究竟講過啲乜呢，如果佢冇講過呢番說話？" } }, { "doc_id": 110, "seg_id": 51, "translation": { "en": "A: He said something had happened and he was in need of money.", "zh-HK": "答 :佢就話佢有啲事，等錢用。" } }, { "doc_id": 110, "seg_id": 52, "translation": { "en": "Q: He said, ‘Something happened, in need of money.’ And then?", "zh-HK": "問 ：佢話「有啲事，等錢。」咁又點呀？" } }, { "doc_id": 110, "seg_id": 53, "translation": { "en": "A: Then he said he had to take my phone.", "zh-HK": "答 : 跟住佢話要攞我部電話囉。" } }, { "doc_id": 110, "seg_id": 54, "translation": { "en": "Q: Something happened, in need of money, had to take your phone?", "zh-HK": "問 ：有啲事，等錢，要攞你電話呀？" } }, { "doc_id": 110, "seg_id": 55, "translation": { "en": "A: Hm. ’", "zh-HK": "答 :唔。                                      ’" } }, { "doc_id": 110, "seg_id": 56, "translation": { "en": "In the “Summary of the Prosecution’s Case”, Judge Kwok did not mention PW1’s withdrawal of the part of his evidence regarding his allegation that the applicant had claimed to be holding a knife. Judge Kwok did not take into account or discuss this discrepancy in PW1’s evidence in the “Analysis of Evidence” in his Reasons for Decision. This is what Judge Kwok said:", "zh-HK": "郭法官在「控方案情撮要」中沒有引述上述第一證人撤回他指稱申請人說他持有刀的證供。郭法官在判決理由書內的「證據分析」中沒有就第一證人這一方面的證供分歧作出考慮或討論。郭法官這樣說：" } }, { "doc_id": 110, "seg_id": 57, "translation": { "en": "Although PW1 was unable to express himself very clearly when he was giving evidence, he had not less than once asked the court to forgive him for being unable to express himself well when he was giving evidence. In general, this has indeed given rise to some uncertainties in his evidence, but viewing his evidence as a whole, I do not think it is so bad that it has become incomprehensible.", "zh-HK": "雖然控方第一證人作證時，他的表達能力屬於比較差。他作證時亦都不少過一次同法庭表示希望法庭原諒自己的表達能力差，這亦導致他的證詞的而且確在整體來說有些地方有時會出現不清晰的情況，不過整體而言，我認為他證詞亦不至到一個難以理解的地步。’" } }, { "doc_id": 110, "seg_id": 58, "translation": { "en": "It is difficult to understand why PW1 changed his evidence. His explanation that he could not express himself well is not convincing. Judging from the above extract of questions and answers, the fact that PW1 changed his evidence had nothing to do with his ability to express himself. He stated of his own accord that the applicant told him he was holding a knife, and this statement was repeated many times. This was the way in which PW1 recounted the incident and had little to do with his ability to express himself. He also explained that he had gone to bed late on the night before the hearing and he was therefore sleepy during the examination-in-chief. Again this is hardly a credible explanation.", "zh-HK": "第一證人更改他的證供的理由是令人費解的。他解釋這是由於他的表達能力差，這是欠缺說服力的。從上述節錄的提問及答覆來看，第一證人更改證供並不涉及表達能力的問題，他在沒有任何提示之下主動說出申請人稱他持有一張刀，並多次重複這番說話，這是第一證人敍述事件的過程，這與他的表達能力沒有甚麼關連。另外，他解釋因在聆訊之前一晚遲睡，以致在主問時發睏，本庭認為這也是一個可信性極低的解釋。" } }, { "doc_id": 110, "seg_id": 59, "translation": { "en": "In the present case, the fact that the applicant told PW1 he was holding a knife was a crucial piece of evidence. Obviously, PW1 let the applicant take away his phone mainly because the applicant threatened him that he had a knife. Had the applicant not said this, why would PW1 have obeyed the applicant’s order? Judge Kwok had not properly dealt with this important issue.", "zh-HK": "在本案，申請人對第一證人說他持有刀是一項關鍵性的證供。明顯地，第一證人讓申請人拿走他的電話的主要原因是因為申請人恫嚇他是持有刀的。若果申請人根本沒有對他說出這一番話，那麼為何他會服從申請人的命令呢?郭法官並沒有適當處理這個重要議題。" } }, { "doc_id": 110, "seg_id": 60, "translation": { "en": "Discrepancies between evidence given in the witness statement and in court", "zh-HK": "證人口供及庭上證供的分歧" } }, { "doc_id": 110, "seg_id": 61, "translation": { "en": "Nor had Judge Kwok analysed or dealt with another material discrepancy in PW1’s evidence. PW1’s testimony at trial was that the applicant told him, “I’m in need of money. Something has happened. I just want to take the phone now.” However, according to the witness statement (sic) provided by the applicant to the police after the incident, the applicant told him “Something happened to me, I’ll take the mobile phone and use it, where is the phone?” These words were not threatening at all. PW1 admitted that he never mentioned in his witness statement that the applicant had said he was “in need of money”. It was only when Judge Kwok asked PW1 whether the applicant did utter the words “in need of money” that PW1 said, “I remember that he seemed to have said, ‘Help a fellow in urgent need’…” PW1 said he had mentioned the words “Help a fellow in urgent need” to the police officer, and he agreed with what Judge Kwok put to him: he had no idea why the officer did not record those words in his statement.", "zh-HK": "另外，郭法官也沒有詳細分析及處理第一證人的證供另一個具關鍵性的衝突情況。第一證人在法庭上作出的證供是申請人對他說：「我等錢使，有啲事，我而家淨係想攞部電話嘅啫」，但申請人在事發後提供給警方的證人供詞卻這樣說：「申請人對他說『我有啲事，攞部手提電話用吓，部電話喺邊到？』」這些字眼完全不具恫嚇成份。第一證人承認在證人供詞內他完全沒有提到申請人說：「等錢使」這一回事，直至郭法官問第一證人到底申請人有沒有說過「等錢使」這三個字，第一證人才這樣說：「我記得就係佢好似同我講過『江湖救急』咁樣……」。第一證人說他曾經對警員說過「江湖救急」這四個字。他同意郭法官對他的提問：他不知道警員為何不替他筆錄這四個字。" } }, { "doc_id": 110, "seg_id": 62, "translation": { "en": "When a robber utters words such as “Help a fellow in urgent need” during the robbery, he is definitely ordering the victim to do as he says and to surrender his money. It defies common sense that an officer who hears a victim say that the robber has uttered the words “Help a fellow in urgent need” will not record those words. We find PW1’s evidence in this respect inherently incredible.", "zh-HK": "當一名匪徒在行劫期間說出「江湖救急」這類字眼，這肯定是具有命令受害人就範及交出金錢的意思。以常理來推斷，一名警員若聽到被劫的受害人說匪徒曾經說過「江湖救急」這些字眼而不把它記錄下來是一件匪夷所思的事。本庭認為第一證人有關的證供存有內在不可信的情況。" } }, { "doc_id": 110, "seg_id": 63, "translation": { "en": "In his Reasons for Judgment, Judge Kwok said:", "zh-HK": "郭法官在判案理由內這樣說：" } }, { "doc_id": 110, "seg_id": 64, "translation": { "en": "In my view, although ‘in need of money’ and ‘help a fellow in urgent need’ are different expressions, they bear a similar meaning. I also accept PW1’s explanation that the defendant should have actually said, ‘Help a fellow in urgent need’, but he transformed ‘Help a fellow in urgent need’ into something which meant ‘in need of money’. That was why he applied or used the two expressions interchangeably. The above example clearly reveals some blemishes in PW1’s evidence, but I do not think these blemishes will affect the credibility of his evidence as a whole.", "zh-HK": "本席認為「等錢使」同「江湖救急」兩個詞彙本身雖然不同，但仍然都是表達意思相近的一個意思。我亦接納控方第一證人的解釋，事實上被告人當時應該是講「江湖救急」，只不過他亦都將「江湖救急」轉化成為一個意思，就是「等錢使」，所以才將兩個詞彙互相交換運用或者使用。上述所舉的例子，顯然暴露控方第一證人證供一些地方的瑕疵，不過這些瑕疵本席並不認為會影響到他證供整體的可信性。’" } }, { "doc_id": 110, "seg_id": 65, "translation": { "en": "We agree that these two expressions mean the same. However, Judge Kwok did not discuss why PW1 made no mention whatsoever of the words “Help a fellow in urgent need” in his post-incident witness statement or why the police omitted these important words. Judge Kwok’s findings in this regard leave the impression that he had not seriously considered whether PW1’s evidence in this respect was credible.", "zh-HK": "本庭同意這兩個詞彙是相同意思的，但郭法官沒有分析第一證人在事發後所提供的證人供詞中完全沒有提及「江湖救急」這些字眼及警方遺漏這些重要字眼的原因。郭法官就這一方面的裁決給人的印象是他沒有慎重地考慮第一證人就這一方面的證供是否可信。" } }, { "doc_id": 110, "seg_id": 66, "translation": { "en": "Other evidence", "zh-HK": "其他證供" } }, { "doc_id": 110, "seg_id": 67, "translation": { "en": "As the incident merely involved PW1 and the applicant, we do not think PW2 or PW3’s evidence could support the charge in question. Even though at trial Counsel for the applicant did not cross-examine PW3 on the issue of his having asked the applicant of the whereabouts of PW1’s phone, this does not mean the applicant had committed robbery. The applicant might indeed have taken away PW1’s phone, but the evidence in the present case does not reveal the circumstances under which he had done so. More importantly, there are still unresolved material doubts about the evidence that went to the elements of robbery, for example, whether the applicant “used force on” PW1 or “put or attempted to put PW1 in fear of being there and then subjected to force” when he took away the phone.", "zh-HK": "本庭認為第二及第三證人的證供並不能支持有關的控罪，因為案發時只涉及第一證人及申請人。就算在審訊時，代表申請人的律師沒有就第三證人曾經質問過申請人有關第一證人電話的下落這議題向該證人提出質詢，這也不表示申請人觸犯了搶劫罪。申請人可能的確拿走了第一證人的電話，但本案的證供並未能顯示他在甚麼情況下拿走該部電話，尤其是構成搶劫罪的基本元素的證供──如申請人拿走電話時有否向第一證人「使用武力」或「使或試圖使第一證人害怕會在當時當地受到武力對付」──是存有未能完滿解決的重要疑點。" } }, { "doc_id": 110, "seg_id": 68, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 110, "seg_id": 69, "translation": { "en": "The courts must give effect to, and not merely pay lip service to, the legal principle that an accused person can be convicted only where his guilt is proved beyond reasonable doubt. The present case is a typical case where guilt has not been proved beyond reasonable doubt. The applicant’s conviction is unsafe. Accordingly, we allow the appeal and quash the conviction.", "zh-HK": "法庭必須實踐在毫無合理疑點下才可裁定被告罪名成立的法律原則，否則它只是一個空泛無實質意義的口頭襌。本案是一宗被告人未在毫無合理疑點之下被證明犯罪的典型例子。本案的定罪判決是不穩妥的，故此本庭批准上訴及撤銷定罪。" } }, { "doc_id": 110, "seg_id": 70, "translation": { "en": "Mr Robert Lee, Counsel for the respondent, has indicated, in our view appropriately, that he will not apply for a re-trial.", "zh-HK": "代表答辯人的李紹強大律師表示他不會申請案件重審。本庭認為這決定是恰當的。" } }, { "doc_id": 110, "seg_id": 71, "translation": { "en": "Mr Robert Lee, Acting Deputy Director of Public Prosecutions, for the respondent", "zh-HK": "答辯人：由律政司署理副刑事檢控專員李紹強代表。" } }, { "doc_id": 110, "seg_id": 72, "translation": { "en": "Mr Andy Hung, assigned by the Legal Aid Department, for the applicant", "zh-HK": "申請人：由法律援助署委派孔慶碩大律師代表。" } }, { "doc_id": 111, "seg_id": 1, "translation": { "en": "Hon Chu JA giving the Reasons for Judgment of the Court:", "zh-HK": "上訴法庭法官朱芬齡頒發上訴法庭判案理由書：" } }, { "doc_id": 111, "seg_id": 2, "translation": { "en": "The applicant was convicted after trial in the District Court of one count of causing death by dangerous driving. On 5 August 2013, Judge Frankie Yiu (the trial judge) sentenced him to 15 months’ imprisonment, and ordered that he be disqualified from driving for a period of 18 months and that he must attend and complete a driving improvement course within 3 months prior to the end of the disqualification period at his own expense. The applicant also pleaded guilty to one count of using a vehicle with a defective warning instrument and one count of using a vehicle with stop lamps maintained other than in a clean and efficient condition and was fined $1,000 for each offence.", "zh-HK": "申請人在區域法院經審訊後，被裁定一項危險駕駛引致他人死亡罪，罪名成立。2013年8月5日，區域法院法官姚勳智(「原審法官」) 判處申請人15個月監禁，停牌18個月，及在停牌令屆滿前3個月內須自費參與及完成駕駛改進課程。申請人另外承認一項使用警報儀器欠妥的車輛罪及一項使用停車燈並非保持清潔及有效運作的車輛罪，各被判處罰款1,000元。" } }, { "doc_id": 111, "seg_id": 3, "translation": { "en": "The applicant applied for leave to appeal against conviction and sentence in relation to the offence of causing death by dangerous driving. On 3 December 2013, he abandoned the application in respect of sentence. At the end of the hearing, we dismissed the application for leave to appeal against conviction. We now give our reasons.", "zh-HK": "申請人就危險駕駛引致他人死亡罪的定罪及判刑申請上訴許可。申請人在2013年12月3日放棄有關判刑的申請。本庭經聆訊後，拒絕定罪的上訴許可申請，現就有關理由給予說明。" } }, { "doc_id": 111, "seg_id": 4, "translation": { "en": "The Facts", "zh-HK": "案情" } }, { "doc_id": 111, "seg_id": 5, "translation": { "en": "At around 3 pm on 31 July 2012, the applicant was driving a 5.5 tonnes goods vehicle turning right into Hai Tan Street from the left first lane of Pei Ho Street, Shamshuipo, Kowloon. On approaching the pedestrian crossing, the offside front wing mirror of the goods vehicle hit the right side of the back of a male’s head. The offside rear wheels of the goods vehicle rolled over the male’s right leg. As a result, he sustained severe head injury, a fractured right hip and laceration on the right lower leg and foot. He was certified dead at 1854 hours on the same day. The deceased was aged 86 and 165 cm tall.", "zh-HK": "2012年7月31日約3 時，申請人駕駛一輛5.5噸貨車，從九龍深水埗北河街左一線右轉進入海壇街。在接近行人過路處，貨車的右前倒後鏡撞倒一名男子的右後腦，貨車的右後輪並輾過他的右腳，引致他頭部嚴重受傷，右臀骨折，右小腿和右足部裂傷，最終在同日下午6:54時證實死亡。死者年齡86歲，身高165厘米。" } }, { "doc_id": 111, "seg_id": 6, "translation": { "en": "Both Pei Ho Street and Hai Tan Street were dual carriageways. The left first lane of Pei Ho Street was a go-straight-only lane and no right turn was allowed, whereas in the left second lane, traffic was allowed to either go straight or turn right. The applicant raised no dispute that by turning right into Hai Tan Street from Pei Ho Street, he was in breach of the traffic signs. At the time of the accident, the weather was fine. The road surface was in good condition.", "zh-HK": "北河街和海壇街都是兩線分隔車道。北河街左一線只准許車輛向前駛，不准許右轉；而左二線則准許車輛向前駛或右轉。申請人不爭議當時是在違反交通標誌的情況下，從北河街右轉進入海壇街。意外發生時，天氣良好，路面狀況良好。" } }, { "doc_id": 111, "seg_id": 7, "translation": { "en": "Police officers attended the scene for investigation and discovered that the offside front of the vehicle was slightly dented and the offside front wing mirror bent inward. There was no brake mark on the road.", "zh-HK": "警員到場調查時，發現申請人的貨車的右邊車頭輕微凹陷，及右前倒後鏡向入摺，而路面沒有剎車的痕跡。" } }, { "doc_id": 111, "seg_id": 8, "translation": { "en": "The applicant told the police officer who first arrived at the scene that he had made a right turn into Hai Tan Street from Pei Ho Street. While he was manoeuvring the bend, he heard a collision sound. He immediately stopped the vehicle, got off to have a look and found that the deceased was lying on the ground. Subsequently, when he related the course of the accident to another police officer, he said he was driving along the left first lane of Pei Ho Street and stopped in front of the traffic lights stop line. The lights turned green and he drove the goods vehicle turning right into Hai Tan Street. The offside front wing mirror struck the right side of the back of the deceased’s head in the course of negotiating the bend. He did not see where the deceased came from. The applicant claimed that the left second lane of Pei Ho Street was full of parked vehicles. Nevertheless, the police officer who arrived at the scene approximately 10 minutes after the accident did not see the same.", "zh-HK": "申請人對首先到場的警員表示他從北河街右轉進入海壇街，在轉灣期間聽到碰撞聲，他立刻停車，下車觀察時發現死者躺在地上。他稍後向另一名警員講述肇事經過時表示，他沿北河街左一線行駛，在交通燈停車線停下等候，在交通燈轉為綠燈時，他駕駛貨車右轉進入海壇街，在轉彎期間，貨車的右前倒後鏡撞到死者右後腦位置，但他看不見死者是從哪裡出來的。申請人也稱北河街左二線泊滿車輛。但在意外後約10分鐘到場的警員沒有看到這個情況。" } }, { "doc_id": 111, "seg_id": 9, "translation": { "en": "The prosecution called Dr. CHENG Yuk-ki as their expert witness. By conducting on-the-spot observation and tests to find out the time needed for various goods vehicles of the same class to negotiate the right turn from the left first lane of Pei Ho Street into the point of impact, Dr. CHENG made a series of calculations. He drew the inference that the accident could have been avoided if the applicant had managed to catch sight of the deceased 1.5 seconds prior to the impact and apply emergency braking at least 3.9 metres before the point of impact.", "zh-HK": "控方傳召的專家證人鄭郁祺博士，透過在意外現場的觀察，及測計多部同類型的貨車從北河街左一線右轉至發生碰撞的位置所需的時間，作出一系列的計算，並推論假若申請人能夠在碰撞前1.5秒察覺到死者，以及在與碰撞點距離最少3.9米處緊急煞車，則意外便可避免。" } }, { "doc_id": 111, "seg_id": 10, "translation": { "en": "Dr. CHENG also testified that: (i) the stop line of Pei Ho Street was 14 metres away from the point of impact. When a vehicle was at the stop line of Pei Ho Street, the driver’s vision of the pedestrian crossing at Hai Tan Street was slightly blocked on the right side by the offside wing mirror, although it was still clear; and (ii) when the vehicle turned right from Pei Ho Street and was 7 metres away from the point of impact, the driver’s vision was unobstructed both in front and to the right.", "zh-HK": "鄭博士的證供亦指出：(i)北河街停車線與發生碰撞處相距14米。當車輛在北河街停車線的位置時，司機觀望海壇街行人過路處的視線，在右邊會有少部分被右倒後鏡阻擋，但仍是清晰的；及(ii)當車輛從北河街右轉至距離碰撞處7米的位置時，司機的前方和右方視線是毫無阻擋的。" } }, { "doc_id": 111, "seg_id": 11, "translation": { "en": "The Trial Judge’s Verdict", "zh-HK": "原審法官的判決" } }, { "doc_id": 111, "seg_id": 12, "translation": { "en": "In respect of Dr. CHENG’s inference mentioned in paragraph 7 above, the trial judge was of the view that there could be errors and uncertainties in the calculations. He therefore held that Dr. CHENG’s inference and calculations were of limited assistance and they should not be relied upon to draw inference on the applicant’s way and manner of driving. Having said that, the trial judge was of the view that the photos showing the offside frontal view looking out from the goods vehicle which were provided by Dr. CHENG in his expert report [Exhibit P14], were of considerable value to the case. The trial judge found that when the goods vehicle stopped at the stop line of the traffic lights at Pei Ho Street, as shown in the photos in Appendix II to the report, the offside wing mirror of the goods vehicle only blocked a small part of one’s vision to the right. Furthermore, when the goods vehicle turned right into Hai Tan Street, the driver’s view was unobstructed both in front and to the right.", "zh-HK": "原審法官認為鄭博士上文第7段述及的推論，所涉及的計算有可能產生誤差及難以被肯定，他因此認為鄭博士的推論和計算作用不大，不應引用作為推論申請人的駕駛情況和態度。但原審法官認為，鄭博士的專家報告（證物P14）所提供有關貨車右前方觀望的相片則對案件甚具價值。原審法官裁斷，從報告附件II的相片可見，當貨車停在北河街交通燈停車線時，貨車的右倒後鏡只是阻擋了右邊小部分的視線，而當貨車右轉進入海壇街時，前方和右邊的視線是完全不受阻擋。" } }, { "doc_id": 111, "seg_id": 13, "translation": { "en": "The trial judge also found that, in the circumstances where the applicant’s view was totally unobstructed, given the fact that he had completely failed to notice the deceased’s presence and did not know where the deceased came from, and was only aware of the deceased at the time of impact, the only inference to be drawn was that he had failed to keep a proper lookout to the road conditions ahead when turning right.", "zh-HK": "原審法官也裁斷，申請人在視線毫無阻擋的情況，完全不察覺死者，亦不知道他從哪裡而來，要到碰撞時才察覺死者，唯一的推論是他在右轉時根本沒有清楚觀察前方的路面情況。" } }, { "doc_id": 111, "seg_id": 14, "translation": { "en": "The trial judge further pointed out that the applicant increased the danger of driving by breaching the traffic regulations to turn right into Hai Tan Street from the left first lane of Pei Ho Street. It would be difficult for other road users to foresee and assess the situation of the approaching goods vehicle since the position of the vehicle, the angle of conducting the turn, the route in which the vehicle travelled and the speed would all differ from a vehicle turning right from the left second lane. Under such circumstances, it was manifestly dangerous for the applicant to turn right against the regulations. By turning right without keeping a proper lookout of the road conditions ahead, the applicant was driving in a manner which fell far below what would be expected of a competent and careful driver.", "zh-HK": "原審法官進一步指出，申請人違反交通規則從北河街左一線右轉進入海壇街，增加了駕駛的危險性，因為車輛的位置，拐彎的角度，行車的軌跡及車速，都與從左二線右轉的車輛的情況不同，使其他道路使用者難以預計和判斷貨車駛至的情況。在此情況下，申請人違規右轉顯然是危險的，而申請人在此情況下右轉，卻沒有清楚觀察前方路面的情況，這是遠遜於合格和謹慎駕駛者會被期望達到的水平。" } }, { "doc_id": 111, "seg_id": 15, "translation": { "en": "The trial judge remarked that since the applicant opted to turn right against the regulations from the left first lane and his view to the right was slightly blocked when he stopped at the stop line, he should have taken extra care and caution when he started to negotiate the right turn, coupled with an appropriate speed when necessary. He should have endeavoured to keep a proper lookout of the road conditions ahead before continuing to manoeuvre his vehicle into Hai Tan Street.", "zh-HK": "原審法官並指出，既然申請人選擇從左一線違規右轉，而在停車線前時，右方視線小部分被阻擋，則他在開始右轉時，就更要小心謹慎，並在有需要時以適當的車速配合，務求可以清楚看到前方路面情況，方繼續轉彎進入海壇街。" } }, { "doc_id": 111, "seg_id": 16, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 111, "seg_id": 17, "translation": { "en": "The applicant advanced two grounds of appeal:", "zh-HK": "申請人提出兩項上訴理由：" } }, { "doc_id": 111, "seg_id": 18, "translation": { "en": "There was no sufficient evidence to support the trial judge’s findings; and", "zh-HK": "原審法官的裁決基礎沒有得到充份的證據支持；及" } }, { "doc_id": 111, "seg_id": 19, "translation": { "en": "The trial judge erred in finding that the evidence in this case had met the threshold requirement of dangerous driving as defined by law.", "zh-HK": "原審法官錯誤地認為案中的證據足以達至法律界定危險駕駛的門檻。" } }, { "doc_id": 111, "seg_id": 20, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 111, "seg_id": 21, "translation": { "en": "For the first ground of appeal, Mr. Li, who appeared for the applicant, argued that there was no evidence to prove that the applicant must have been able to see the deceased before the collision, or that if he had been able to see the deceased, he must have been capable of making a timely reaction so as to avoid the accident. Mr. Li highlighted that there was no evidence in this case to show where the deceased came from or how he went out onto the road, nor was there evidence to indicate the speed at which the applicant was driving. In respect of Dr CHENG’s evidence that the accident could have been avoided had the applicant seen the deceased 1.5 seconds before the collision, Mr. Li submitted that it was a matter of split second, and the time in which the applicant could see the deceased would have been even shorter if the latter had run out. Further, the deceased did not cross the road at the pedestrian crossing. In those circumstances, it was wrong for the trial judge to convict the applicant of dangerous driving on the basis of his failure to keep a proper lookout of the road conditions ahead when he turned right and his failure to notice where the deceased came from when his view to the right was completely unobstructed.", "zh-HK": "就首項上訴理由而言，代表申請人的李大律師指沒有證據顯示申請人在發生碰撞前，必然可以看見死者，或即使他能看見死者，他必然來得及反應從而應可避免意外的發生。李大律師強調案中沒有證供顯示死者是從哪裡或是怎樣走出馬路，亦沒有證據顯示申請人的車速是甚麼。針對鄭博士指如果申請人在碰撞前1.5秒可看到死者，意外是可以避免的證供，李大律師指這是非常短促的時間，而如果死者跑出來的話，那麼申請人可以察覺到他的時間就更短。再者，死者並非在行人過路處橫過馬路。在此情況下，原審法官基於申請人右轉時沒有清楚觀察前方路面情況，及在右邊視線完全不受阻擋的情況下仍看不見死者從何處出來，裁定申請人危險駕駛，這是錯誤的決定。" } }, { "doc_id": 111, "seg_id": 22, "translation": { "en": "In our view, as clearly shown in photos 1 and 2 in Appendix II to Dr CHENG’s expert report, the applicant would have been able to see clearly the situation in front, i.e. the junction of Hai Tan Street when he stopped his goods vehicle at the traffic lights stop line of Pei Ho Street, even though his view to the right was slightly blocked by the right wing mirror. When the goods vehicle was negotiating the right turn into Hai Tan Street, the applicant’s view would have been unobstructed both in front and to the right. As the trial judge pointed out, given the fact that the applicant completely failed to notice the deceased’s presence and did not know where the deceased came from, and he was only aware of the deceased after the impact, the only irresistible inference to be drawn was he failed to keep a proper lookout of the road conditions. Although there was no direct evidence to indicate the position of the deceased before the impact, the route he took or the speed at which the applicant’s vehicle was travelling, upon considering the circumstances of the clear and unobstructed view that one would have had both in front and to the right, and the impossibility of the deceased, an elderly person of 86, running at a high speed or sprinting onto the road so abruptly that he would suddenly appear in front of the goods vehicle when the applicant could not reasonably have seen him, resulting in him being struck on the back of his head by the right front wing mirror of the vehicle and falling onto the ground, it can be demonstrated that the applicant should have been able to see the deceased had he kept a proper lookout of the road conditions.", "zh-HK": "本庭認為，鄭博士的專家報告附件II的相片1及2清楚顯示，當申請人的貨車在北河街交通燈停車線時，他右邊的視線有小部分被右倒後鏡阻擋，但仍可清楚看見前方海壇街路口的情況，而當貨車右轉進入海壇街時，申請人前方和右邊的視線是毫無阻擋的。一如原審法官指出，申請人在這情況下完全沒有看見死者，不知道他從何處出來，要到碰撞後才察覺他，唯一不可抗拒的推論是申請人沒有小心清楚觀察路面情況。雖然案中沒有直接證據顯示死者在被撞倒前的位置和採用的路徑，及申請人貨車的速度，但在前方和右邊視線清楚無阻的情況下，再加上死者是一名86歲長者，不可能在路上高速奔跑或忽然快速跑出馬路，以致在申請人無法合理看見的情況下，突然出現在貨車前方，使其右後腦被貨車的右前倒後鏡撞擊，並跌倒在地上，因此倘若申請人曾小心清楚觀察路面情況，他應可看見死者。" } }, { "doc_id": 111, "seg_id": 23, "translation": { "en": "Regarding the inference drawn by Dr CHENG that the accident could have been avoided, the trial judge did not adopt it as the basis of his findings. The applicant, therefore, cannot rely on it as a ground of appeal. Besides, Dr CHENG’s testimony was: the accident could have been avoided if the applicant had seen the deceased 1.5 seconds before the collision, which should have afforded him sufficient time to react and stop the vehicle. Dr CHENG did not suggest that the applicant could only have been able to see the deceased 1.5 seconds before the collision. Mr. Li’s argument, namely, that 1.5 seconds was the most fleeting of moments, that even if the applicant had been able to see the deceased, he might not necessarily have managed to make a timely response to brake and stop the vehicle to avoid the collision considering both the vehicle and the deceased were in motion, must fail.", "zh-HK": "就鄭博士有關意外是可以避免這部份的推論，原審法官並沒有採納作為判案的基礎。申請人因此不可引用作為上訴理由的基礎。再者，鄭博士的證供是指：只要申請人在碰撞前1.5秒看見死者，他應有足夠時間作出反應，煞停貨車，從而避免意外的發生。鄭博士並不是說申請人只是在碰撞前1.5秒時才可以看見死者。李大律師有關1.5秒是極短促的時間，貨車和死者當時均在移動中，申請人不一定可以適時作出反應，因此即使申請人能看見死者，亦未必可及時煞停貨車，避免碰撞等陳詞，不能成立。" } }, { "doc_id": 111, "seg_id": 24, "translation": { "en": "In our judgment, there was sufficient evidence before the trial judge to enable him to draw the inference that the applicant had failed to keep a proper lookout of the road conditions at the time of turning right into Hai Tan Street from the left first lane of Pei Ho Street. The trial judge did not err when he adopted this as an essential consideration to find that the applicant was driving dangerously.", "zh-HK": "本庭認為，原審法官有足夠證據推論申請人從北河街左一線右轉進入海壇街時沒有小心觀察路面情況。原審法官以此作為裁斷申請人危險駕駛的重要考慮沒有犯上錯誤。" } }, { "doc_id": 111, "seg_id": 25, "translation": { "en": "It is plainly irrelevant whether the deceased crossed the road at the pedestrian crossing or whether he was in breach of traffic light signals when doing so. The thrust of this case is whether the applicant’s manner and way of driving fell far below what would be expected of a competent and careful driver. As Ms Wong, for the respondent, put it, a cautious and careful driver should pay particular attention to pedestrians and traffic condition when reaching a traffic lights controlled pedestrian crossing. He should also be aware of the possibility that pedestrians might cross the road without complying with the regulations.", "zh-HK": "至於死者是否在行人過路線橫過馬路，或是否違反燈號橫過馬路，這實在無關宏旨。本案的重點在於申請人的駕駛態度和方法是否遠遜於一名合格和謹慎的駕駛者所被預期的水平。如代表答辯人的黃大律師指出，一名小心謹慎的駕駛者在駛至由交通燈管制的行人過路線時，應特別小心注意途人和交通狀況，亦要預期有行人可能不依規則橫過馬路。" } }, { "doc_id": 111, "seg_id": 26, "translation": { "en": "Mr Li mentioned in his submission that the trial judge had failed to take into account that the left second lane of Pei Ho Street had been full of parked vehicles, so that the applicant was left with no alternative but to turn right from the left first lane. In our view, it matters not whether the applicant was deliberate or left with no alternative but to turn right against the regulations from the left first lane. The fundamental concern of this court is the applicant’s way and manner of driving during the course when he turned right into Hai Tan Street. As rightly pointed out by the trial judge, the issue was whether, given that the applicant turned right against the regulations from the left first lane, his driving manner and speed were appropriate to ensure that he drove past the junction into Hai Tan Street in safe circumstances.", "zh-HK": "李大律師的陳詞也指，原審法官沒有考慮申請人是因為北河街左二線泊滿車輛，在迫不得已的情況下從左一線右轉。本庭認為申請人是蓄意或是在沒有選擇下違反交通規則從左一線右轉並不重要，法庭關注的重點在於申請人右轉進入海壇街的過程中，他採取的駕駛方式和態度。誠如原審法官指出，問題在於申請人既然違規從左一線右轉，他有否以合適的駕駛方式和速度作出配合，確保在安全的情況下駛過路口進入海壇街。" } }, { "doc_id": 111, "seg_id": 27, "translation": { "en": "The first ground of appeal raised by the applicant fails.", "zh-HK": "申請人的第一項上訴理由不能成立。" } }, { "doc_id": 111, "seg_id": 28, "translation": { "en": "Regarding the second ground of appeal, Section 36(4) of the Road Traffic Ordinance, Cap 374 of the Laws of Hong Kong provides that:", "zh-HK": "至於第二項上訴理由，《道路交通條例》（香港法例第374章）第36(4)條規定：" } }, { "doc_id": 111, "seg_id": 29, "translation": { "en": "“(4) A person is to be regarded as driving dangerously within the meaning of subsection (1) if-the way he drives falls far below what would be expected of a competent and careful driver; and it would be obvious to a competent and careful driver that driving in that way would be dangerous.”", "zh-HK": "「(4) 如某人駕駛汽車的方式，遠遜於一個合格而謹慎的駕駛人會被期望達到的水平；及對一個合格而謹慎的駕駛人而言，該人以該方式駕駛汽車會屬危險，會是顯然易見的，該人須視為屬第(1)款所指的危險駕駛。」" } }, { "doc_id": 111, "seg_id": 30, "translation": { "en": "We agree that in dangerous driving cases, there is a high threshold to surmount: R v Conteh [2004] RTR 1,5; HKSAR v Lam Chi Fat [2012] 1 HKLRD 961 Para 28 to 30; and HKSAR v Lam Ho Yin (unreported) CACC10/2010, Paras 20 and 21.", "zh-HK": "本庭同意危險駕駛的舉證門檻是高的：R v Conteh [2004] RTR 1, 5；香港特別行政區訴林志發[2012] 1 HKLRD 961第28至30段；及香港特別行政區訴林灝言（未經彙編）CACC 10/2010第20及21段。" } }, { "doc_id": 111, "seg_id": 31, "translation": { "en": "Mr Li submitted that the applicant made no denial that his manner of driving was unsatisfactory, but it was nothing more than a momentary lapse of attention, which had not reached the very high threshold as defined by law in respect of dangerous driving. Mr Li averred that prior to the occurrence of the accident, both the vehicle and the deceased were in motion. Furthermore, based on Dr CHENG’s inference and calculations, 1.5 seconds was but a fleeting moment. The applicant just pulled out from the stop line and the speed of the vehicle was very slow. Under those circumstances, although the applicant did not notice the deceased or was unaware of the danger so as to make an appropriate response, or although he failed to pay attention to the road conditions on the right side, such conduct did not amount to dangerous driving.", "zh-HK": "李大律師指申請人不否認其駕駛模式欠妥善，但僅屬於瞬間不專注，而非達至法律界定危險駕駛的極高門檻。李大律師強調意外發生前，貨車和死者都是在移動中，而以鄭博士的推論和計算作考慮，1.5秒是很少的時間，而且申請人的貨車當時剛離開停車線，車速很慢。在這些情況下，申請人沒有察覺死者，或意識到有危險，並作出適當的反應，又或是沒有專注右邊的路面情況，都不達致危險駕駛的情況。" } }, { "doc_id": 111, "seg_id": 32, "translation": { "en": "We do not agree with those submissions. It is incumbent upon a competent and careful driver to be wary and observant of the road conditions and pedestrian traffic at all times. A competent and careful driver would consider it a risky move to turn right into Hai Tan Street from the left first lane of Pei Ho Street, because the other road users might not normally expect vehicles to turn right against the regulations from the left first lane, and it would be hard for them to foresee the driving angle, the route and the speed of the approaching vehicle. It would be obvious to a competent and careful driver that driving in that way, namely turning right into Hai Tan Street from the left first lane of Pei Ho Street without keeping a proper lookout, would be dangerous.", "zh-HK": "本庭不同意這些陳詞。一名合格和謹慎的駕駛者應時刻保持警惕，小心觀察路面情況和注意路上的行人。一名合格和謹慎的駕駛者會認為從北河街左一線右轉進入海壇街是有風險的做法，原因是其他道路使用者一般不會預期有車輛會違規從左一線右轉，而他們亦難以預計車輛會採取甚麼行車角度、路線及速度駛至。一名合格和謹慎的駕駛者亦必然會認為，從北河街左一線右轉進入海壇街卻又沒有小心清楚觀察路面情況，這顯然是危險的駕駛模式。" } }, { "doc_id": 111, "seg_id": 33, "translation": { "en": "Hence, regardless of the reasons that prompted the applicant to turn right into Hai Tan Street from the left first lane of Pei Ho Street, in view of his failure to keep a proper lookout of the road conditions and the pedestrian traffic during driving, it is apparent that the way he drove fell far below what would be expected of a competent and careful driver; and a competent and careful driver would regard driving in the way the applicant did would obviously be dangerous.", "zh-HK": "因此，不管申請人是基於甚麼原因決定從北河街左一線右轉進入海壇街，他在行駛時沒有小心觀察路面情況和注意路上的行人，他的駕駛方式顯然遠遜一名合格和謹慎駕駛者會被期望達到的水平；而合格和謹慎的駕駛者亦會認為以申請人的方式駕駛顯然是危險的。" } }, { "doc_id": 111, "seg_id": 34, "translation": { "en": "The trial judge was entirely correct to find the applicant guilty of causing death by dangerous driving.", "zh-HK": "原審法官裁定申請人危險駕駛引致他人死亡罪罪名成立是正碓無誤。" } }, { "doc_id": 111, "seg_id": 35, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 111, "seg_id": 36, "translation": { "en": "In light of the above reasons and analysis, we dismiss the applicant’s application for leave to appeal against conviction.", "zh-HK": "本庭基於上述理由和分析，拒絕申請人的上訴定罪許可申請。" } }, { "doc_id": 111, "seg_id": 37, "translation": { "en": "Tony LI, instructed by Messrs Simon C.W. Yung & Co., assigned by Director of Legal Aid, for the Applicant.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員黃錦卿代表。" } }, { "doc_id": 111, "seg_id": 38, "translation": { "en": "WONG Kam Hing, Senior Assistant Director of Public Prosecution of the Department of Justice, for the Respondent", "zh-HK": "申請人：由翁宗榮律師所轉聘李頌然大律師代表。" } }, { "doc_id": 112, "seg_id": 1, "translation": { "en": "Hon Pang JA (giving the Reasons for Judgment of the Court):", "zh-HK": "上訴法庭法官彭偉昌頒發上訴法庭判案理由書：" } }, { "doc_id": 112, "seg_id": 2, "translation": { "en": "This is an appeal from the Court of First Instance of the High Court. The applicant was convicted after trial of one count of “trafficking in a dangerous drug” involving ketamine in the net weight of 3.85 kg. He was sentenced to 20 years’ imprisonment by the trial judge (M Poon J). The applicant applied for leave to appeal against conviction. Having heard his appeal, we granted leave and allowed the appeal. These are our reasons.", "zh-HK": "本案源於高等法院原訟法庭。申請人在審訊後被裁定一項‘販運危險藥物’罪成立，涉及以淨含毒量計3.85千克氯胺酮，原審法官（潘敏琦法官）把他判處入獄20年。申請人不服，就定罪提出上訴許可申請，在聆訊後獲得本庭批准兼裁定他上訴得直，理由如下。" } }, { "doc_id": 112, "seg_id": 3, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 112, "seg_id": 4, "translation": { "en": "The prosecution case is very simple.", "zh-HK": "控方的案情非常簡單。" } }, { "doc_id": 112, "seg_id": 5, "translation": { "en": "At 7:47 pm on 20 March 2015, DPC 51161 (“PW1”) intercepted the applicant for enquiry on Platform No. 2 of Shau Kei Wan MTR Station because he found him suspicious.", "zh-HK": "2015年3月20日晚上7時47分，偵緝警長51161（‘PW1’）因覺得申請人可疑而在筲箕灣港鐵站2號月台向他截查。" } }, { "doc_id": 112, "seg_id": 6, "translation": { "en": "Two minutes afterwards, DPC 7476 (“PW2”) came to the scene on instruction, searched the applicant and seized from the white plastic bag in the applicant’s hand the five packets of dangerous drug in question. Having been arrested and cautioned by PW2, the applicant said, “Understand. These five packets of K Chai are to be distributed to customers by me for Ah Fai, receiving $500 for each round.”", "zh-HK": "兩分鐘後，探員7476（‘PW2’）奉命到場搜查申請人並從他手中的白色膠袋檢獲涉案五包毒品。申請人被PW2拘捕及警誡後表示：「明白，呢五包K仔係我幫阿輝派畀啲客嘅，每轉收番500 鈫。」" } }, { "doc_id": 112, "seg_id": 7, "translation": { "en": "At 7:55 pm on the same day, DIP Fung Chi Tat (“PW4”), leading DPC 822 (“PW3”) and DPC 89 (“PW5”), arrived at the said MTR platform. Afterwards, he together with PW2 took the applicant back to the ground level and conveyed him back to Chai Wan Police Station by a 7-seater motor vehicle. At that time, there was also a DSPC called “Chia Wah” on board.", "zh-HK": "同日晚上7時55分，馮志達偵緝督察（‘PW4’）率領探員822（‘PW3’）和探員89（‘PW5’）到達上述地鐵月台，之後連同PW2把申請人帶回地面用一部七人車載往柴灣警署，當時車上還有一位名叫「謝華」的高級探員。" } }, { "doc_id": 112, "seg_id": 8, "translation": { "en": "At Chai Wan Police Station, the police officers concerned made a report of the case and showed the arrested person and the exhibits to the duty officer, and apart from that, PW2 also issued a “Notice for Person in Custody” to the applicant and conducted a further body search on him.", "zh-HK": "在柴灣警署，有關的警務人員除了向值日官匯報案件及出示犯人和證物外，PW2亦給申請人簽發了一份《羈留人士通知書》和向他作進一步的搜身。" } }, { "doc_id": 112, "seg_id": 9, "translation": { "en": "After completing the above procedures, the applicant was taken to the Police Headquarters. In Room 1743, PW2 who was alone with the applicant made a post-record of the verbal confession in a notebook, on which the applicant signed to confirm. In the course of it, PW2 did not ask the applicant any further question.", "zh-HK": "在完成上述的程序後，申請人被帶返警察總部。在1743室，PW2單獨和申請人進行了口頭招認的補錄於一本記事冊內，由申請人簽署確認，其間PW2並無向申請人作進一步的發問。" } }, { "doc_id": 112, "seg_id": 10, "translation": { "en": "In the present case, initially, there was also the record of a video interview conducted under caution, but the prosecution made no attempt at all to produce it in court for the reason of Chia Wah (see below).", "zh-HK": "本案本來還有一個警誡錄影會面紀錄，但控方卻因為謝華的緣故完全沒有嘗試呈遞（見後）。" } }, { "doc_id": 112, "seg_id": 11, "translation": { "en": "Defence case", "zh-HK": "辯方說法" } }, { "doc_id": 112, "seg_id": 12, "translation": { "en": "The appellant said that he did not know what was inside the plastic bag was dangerous drug and claimed that both the verbal confession and the post-record in question were fabricated by the police or had just been obtained by the police by improper means. The allegations are roughly as follows.", "zh-HK": "申請人指自己不知道膠袋裡裝著的是毒品，他聲稱有關的口頭招認和事後補錄都是由警方捏造或以不當的手法取得，情況大致如下。" } }, { "doc_id": 112, "seg_id": 13, "translation": { "en": "At the material time, the applicant was aged 17, having a clear record, and ran errands for the boss of an online shopping platform. On that day, sometime between 5 pm and shortly after 6 pm, he received a customer’s call and realized that there was something wrong with the goods ordered by the customer. Since the customer was pressed for time, and the applicant could not get in touch with the boss, the applicant acceded to the customer’s request and went to Shau Kei Wan MTR Station to get back the commodity for replacement.", "zh-HK": "案發時申請人十七歲，沒有刑事定罪紀錄，為一名老闆在網購平台當跑腿。當日下午5時至6時許，他接到一個客人電話，獲知客人所訂購的貨品有問題。由於客人趕時間而申請人又聯絡不上老闆，申請人便答應客人到筲箕灣地鐵站取回貨品以待退換。" } }, { "doc_id": 112, "seg_id": 14, "translation": { "en": "At the MTR exit, the customer gave a blue plastic bag to the applicant. The customer said that the plastic bag might break, told the applicant to buy a plastic bag to hold it and then left. The applicant followed the customer’s suggestion, bought something to drink from a convenience store and after that put the original plastic bag with its contents into the white plastic bag which had just been bought from the store. The applicant all along thought that it was health product inside the plastic bag.", "zh-HK": "在地鐵站出口，客人把一個藍色膠袋交給申請人。客人指膠袋可能會破，叫申請人另買一個膠袋盛載，跟著便離開。申請人聽從客人的建議，在便利店買過飲品後把原來的膠袋和其中的物品放進剛從便利店購買的白色膠袋。申請人一路以為膠袋裡的是保健產品。" } }, { "doc_id": 112, "seg_id": 15, "translation": { "en": "Having not been able to get in touch with the boss all along, the applicant decided to go home first but was intercepted by the police right on the platform for enquiry. When the police constable asked him what was inside the plastic bag, he even said, “Health stuff.” On hearing that, the police constable told him to go to police station before saying anything further. Subsequently, other police officers were summoned, and he was handcuffed and taken away. In the course of it, the police constable did not declare any arrest or administer any caution on him. And he never made the verbal confession as alleged by the prosecution.", "zh-HK": "由於聯絡不上老闆，申請人決定先回家，之後卻在月台被警方截停搜查。警員問他膠袋裡是甚麼，他還說是「保健嘢」。警員聽後，叫他先回警署再說，然後召來其他警員把他鎖上手銬及帶走。期間，警員並未宣佈拘捕，亦沒有向他施行警誡，而他也沒有作出過控方所指的口頭招認。" } }, { "doc_id": 112, "seg_id": 16, "translation": { "en": "On board the 7-seater motor vehicle, on the way to Chai Wan Police Station, the applicant was assaulted and threatened by Chia Wah who slapped his face and pulled his hair. Chia Wah alleged there was obviously dangerous drug inside the plastic bag and demanded the co-operation of the applicant, and the other person said, “Here is just very little. Can go after serving one to two years.”", "zh-HK": "在駛往柴灣警署的七人車上，申請人被謝華毆打及威嚇，詳情包括掌摑及拉扯頭髮。謝華指膠袋裡的明顯是毒品，要申請人合作；另一人則表示「呢度好少嘢啫，坐一、兩年就走得」。" } }, { "doc_id": 112, "seg_id": 17, "translation": { "en": "After arriving at Chai Wan Police Station, the applicant was taken to a room where PW2 took out and gave to Chia Wah a notebook which already contained the written contents. Chia Wah, after reading it, requested the applicant to write a declaration to confirm the content to be true. The applicant refused. Chia Wah pulled his hair and gave him a punch. Chia Wah also threatened the applicant “not to play any game”. Finally, the applicant unwillingly wrote down the declaration and signed the post-record concerned.", "zh-HK": "抵達柴灣警署之後，申請人被帶到一間房間，由PW2拿出一本已經填寫好內容的記事冊給謝華。謝華在看完後要求申請人書寫聲明確認裡面的內容屬實。申請人拒絕，謝華就扯他的頭髮和打了他一拳。謝華亦威嚇申請人「唔好玩嘢」。最後申請人非自願地寫下聲明及簽署了有關的補錄。" } }, { "doc_id": 112, "seg_id": 18, "translation": { "en": "The procedures and the result of the trial", "zh-HK": "程序和原審結果" } }, { "doc_id": 112, "seg_id": 19, "translation": { "en": "The applicant was the only defence witness, and he testified in the voir dire. The trial judge ruled the verbal confession and the notebook post-record in question admissible (hereinafter collectively referred to as “the cautioned statements”). In the trial proper, the applicant repeated his allegations against the police and his explanation about the whole incident (ie handling the replacement of goods for an online customer). Finally, the applicant was found guilty of the charge of “trafficking in a dangerous drug” by the jury in a majority of 5 to 2.", "zh-HK": "申請人是辯方的唯一一位證人，他在案中案作供。原審法官裁定有關的口頭招認和記事冊補錄可以呈堂（以下統稱‘警誡供詞’），申請人又在正審中重複他對警方的指控及說出他對整件事情（即代網購客人退貨）的解釋。結果陪審團以5對2的比數裁定申請人‘販運危險藥物’罪成。" } }, { "doc_id": 112, "seg_id": 20, "translation": { "en": "Essential grounds of appeal", "zh-HK": "關鍵上訴理由" } }, { "doc_id": 112, "seg_id": 21, "translation": { "en": "The applicant has advanced eight grounds of appeal in total.", "zh-HK": "申請方一共提出了八項上訴理由。" } }, { "doc_id": 112, "seg_id": 22, "translation": { "en": "Among these grounds, Ground (1) contends that although Chia Wah was a witness named “on the back of the indictment”, and the applicant had specific allegations against Chia Wah in relation to the admissibility of the cautioned statements, the prosecution refused to call Chia Wah to testify, a matter which rendered the trial unfair.", "zh-HK": "其中理由（1）批評，謝華是〈控方證人列表〉內的證人，而申請人就警誡供詞是否可呈堂的議題對謝華又有特別指控，可是控方卻拒絕傳召謝華作供，所以導致了審訊不公平。" } }, { "doc_id": 112, "seg_id": 23, "translation": { "en": "It is contended under Ground (2) that the trial judge has erred in ruling the cautioned statements admissible notwithstanding that the prosecution had refused to call Chia Wah.", "zh-HK": "理由（2）則指原審法官在控方拒絕傳召謝華的情況下裁定警誡供詞可以呈堂是錯的。" } }, { "doc_id": 112, "seg_id": 24, "translation": { "en": "How the issue arose", "zh-HK": "事情的起因" } }, { "doc_id": 112, "seg_id": 25, "translation": { "en": "As stated above, the present case happened in the evening of 20 March 2015, and Chia Wah was actually named as PW3 on the back of the indictment dated 24 July 2015.", "zh-HK": "如上文所說，本案發生於2015年3月20日晚，有關〈公訴書〉的日期則為2015年7月24日，當時謝華的確名列〈控方證人列表〉中的第三控方證人。" } }, { "doc_id": 112, "seg_id": 26, "translation": { "en": "However, according to para 7 of the admitted facts in the case, on 18 February 2016, Chia Wah was convicted on his own guilty plea of a charge of “possession of a dangerous drug” and sentenced to two months’ imprisonment which was suspended for two years, and he was “interdicted” at the time of the trial of the present case.", "zh-HK": "然而，根據案中〈獲認事實〉第7段顯示，謝華在2016年2月18日因承認一項‘管有危險藥物’罪被定罪及判囚2個月，緩刑2年，於本案的原審階段則「正在停職」。" } }, { "doc_id": 112, "seg_id": 27, "translation": { "en": "According to the further information provided to this court by the respondent, Chia Wah was involved in that case for 0.37 g of cocaine. He put forward the ground that “the dangerous drug was given by an informer” in mitigation of sentence. Finally, because of his clear record and previous good working record, after giving him a general one-third discount for his guilty plea, the magistrate allowed his sentence of imprisonment to be suspended.", "zh-HK": "根據答辯方向本庭提供的進一步資料，謝華在該案涉及的是0.37克可卡因，他請求輕判的理由是「毒品係線人畀嘅」。最後，裁判官因為他沒有前科、過往工作紀錄良好而在三分一的一般認罪扣減外把他處以緩刑。" } }, { "doc_id": 112, "seg_id": 28, "translation": { "en": "In view of the above development, during the second pre-trial review of the present case (on 26 July 2016), the prosecution informed the defence and the court that they were not calling Chia Wah and would give up the post-record in the notebook and the subsequent video interview under caution even if that meant only relying on the verbal confession which did not involve Chia Wah. The following is the conversation among the counsel for both sides and the court in the early stage of the pre-trial review (parts underlined to be noted)：", "zh-HK": "鑑於以上的發展，控方在本案第二次審前覆核時（2016年7月26日）通知辯方及法庭，他們將不會傳召謝華作證，甚至放棄記事冊的補錄和其後的警誡錄影會面紀錄而只依賴不牽涉謝華的口頭招認也在所不計。以下是雙方大律師和原審法官在覆核初段時的對話（留意有下劃線的部分）：" } }, { "doc_id": 112, "seg_id": 29, "translation": { "en": "“MR CHEUNG:Yes, and the cautioned statements will be disputed as well. I know that the prosecution are (not) prepared to produce the video interview record. If that’s the case, there will be no dispute in this regard. However, there are still the verbal confession at the scene, the verbal confession, and also the post-record later made at the police station. These two will be disputed.", "zh-HK": "「MR CHEUNG：係，同埋警誡供詞有爭議。我知道控方係（不）準備呈遞嗰個錄影會面紀錄嘅，咁就若果係咁，就呢方面係冇爭議，但係佢仲有嗰個口頭嘅招認喺現場嘅，verbal口頭招認，同埋事後喺警署嘅補錄，咁呢兩份都會有爭議。" } }, { "doc_id": 112, "seg_id": 30, "translation": { "en": "COURT:Do you confirm that the video interview will not be produced?", "zh-HK": "官：你係咪確認唔會呈遞嗰個錄影會面㗎？" } }, { "doc_id": 112, "seg_id": 31, "translation": { "en": "MR CHUI:Yes, I do, Your Ladyship, since the third -- PW3, who is PC, this 33644 has already left the police force, we, the prosecution will not call this witness, and therefore the video interview will not be relied on, the prosecution, however, the verbal confession and the post-record in the notebook will be relied on, the prosecution. Therefore, as a result …", "zh-HK": "MR CHUI：係呀，法官閣下，因為第三--控方第三證人就警員，呢一個33644就已經離開咗警隊喇，咁所以我哋控方就呢個證人方面就唔會傳召嘅，咁就因而就嗰個錄影會面亦都唔會倚賴喇，控方，但係嗰個口頭招認同埋嗰個補錄記事冊係會倚賴嘅，控方。所以因而..." } }, { "doc_id": 112, "seg_id": 32, "translation": { "en": "..........", "zh-HK": ".........." } }, { "doc_id": 112, "seg_id": 33, "translation": { "en": "MR CHUI:Now, the prosecution are going to call only three witnesses, who are PW1, the arresting officer who administered the caution.", "zh-HK": "MR CHUI：控方而家就只係會傳召三位證人，即係第PW1喇，呢個拘捕人員喇，同埋警誡人員喇。" } }, { "doc_id": 112, "seg_id": 34, "translation": { "en": "COURT:Yes.", "zh-HK": "官：係。" } }, { "doc_id": 112, "seg_id": 35, "translation": { "en": "MR CHUI:PW2, DSgt 51161; and PW4 who’s the Exhibit Officer, DSgt 822, and that’s it.", "zh-HK": "MR CHUI：PW2就係呢個偵緝警長51161；同埋PW4，呢個證物員，偵緝警員822咁樣。" } }, { "doc_id": 112, "seg_id": 36, "translation": { "en": "COURT:Why do we need the Exhibit Officer, Mr Cheung?", "zh-HK": "官：點解我哋要叫證物員呢，張大律師？" } }, { "doc_id": 112, "seg_id": 37, "translation": { "en": "..........", "zh-HK": ".........." } }, { "doc_id": 112, "seg_id": 38, "translation": { "en": "MR CHEUNG:But because of the -- at the police station, the subsequent post-record, the defence complains that something had happened on board the police vehicle.", "zh-HK": "MR CHEUNG：但係就因為嗰個 -- 喺警署，你之後嗰個補錄，就辯方嗰個投訴就係係有一啲嘢喺警車嗰度發生過嘅。" } }, { "doc_id": 112, "seg_id": 39, "translation": { "en": "COURT:Hang on.", "zh-HK": "官：等等。" } }, { "doc_id": 112, "seg_id": 40, "translation": { "en": "MR CHEUNG:Yes.", "zh-HK": "MR CHEUNG：係。" } }, { "doc_id": 112, "seg_id": 41, "translation": { "en": "COURT:... Therefore PW4, all to be called are related to matters in this regard only, …", "zh-HK": "官：所以第四控方證人，所有被傳召嘅就係有關呢方面嘅事情嘅啫，..." } }, { "doc_id": 112, "seg_id": 42, "translation": { "en": "MR CHEUNG:Right, that’s correct.", "zh-HK": "MR CHEUNG：係喇，冇錯。" } }, { "doc_id": 112, "seg_id": 43, "translation": { "en": "COURT:... but not about whether or not dangerous drug was found upon search?", "zh-HK": "官：...就唔係有關於搜唔搜得出毒品呢樣嘢？" } }, { "doc_id": 112, "seg_id": 44, "translation": { "en": "MR CHEUNG:That’s right, not about that, right, only against the verbal confession and the subsequent post-record made at the police station, because at that time PW4 was on board the vehicle.", "zh-HK": "MR CHEUNG：係，唔係有關，係，只係針對嗰個口頭招認同埋喺警署之後嘅補錄，因為當時第四證人喺車上嘅。" } }, { "doc_id": 112, "seg_id": 45, "translation": { "en": "COURT:Yes.", "zh-HK": "官：係。" } }, { "doc_id": 112, "seg_id": 46, "translation": { "en": "MR CHEUNG:And also, the prosecution also request -- I do apologize, the defence now intend to request the prosecution to tender PW3, the prosecution witness for my cross-examination because also on board the vehicle, in relation to the dispute about the subsequent post-record, there are some allegations against this PW3. I know that the prosecution do not intend to call PW3. But in view of two reasons: first, he has been named on the back of the indictment as a witness, and second, there are allegations against him. The defence hence request the prosecution to tender him -- for cross-examination by the defence.", "zh-HK": "MR CHEUNG：仲有，就係控方亦都係要求--對唔住，辯方而家想要求控方係tender第三證人，控方證人接受我嘅盤問，因為亦都係喺車上，嗰個關於事後個補錄嗰個爭議性係有啲allegation係against呢個第三證人嘅，咁我知道控方係唔打算傳召第三證人，但係就基於兩個原因：第一，因為佢喺證人列表度已經係列咗佢做證人喇；咁而且第二係有allegation against佢嘅，咁所以就辯方係要求控方係tender佢係畀--接受辯方嘅盤問。" } }, { "doc_id": 112, "seg_id": 47, "translation": { "en": "COURT:Yes.", "zh-HK": "官：係。" } }, { "doc_id": 112, "seg_id": 48, "translation": { "en": "MR CHEUNG:Yes.", "zh-HK": "MR CHEUNG：係。" } }, { "doc_id": 112, "seg_id": 49, "translation": { "en": "COURT:What do you say, Mr Chui?", "zh-HK": "官：你點講呀，徐大律師？" } }, { "doc_id": 112, "seg_id": 50, "translation": { "en": "MR CHUI:Yes, Your Ladyship, if the prosecution finally see that the defence’s grounds of objection do, if, actually involve some allegations against PW3 DPC 33644 on the voluntariness in respect of the post-record, the prosecution will consider not to rely on the post-record in the notebook as evidence.", "zh-HK": "MR CHUI：係，就法官閣下，就控方如果最終睇到辯方嗰個反對理由書係的而且確如果係有牽涉有啲指控，針對呢個第三證人偵緝警員33644，關於嗰個自願性，補錄方面的話，咁控方就會考慮唔會倚賴嗰個補錄嘅記事冊方面嘅證供。" } }, { "doc_id": 112, "seg_id": 51, "translation": { "en": "COURT: Hang on. First, who made this post-record?", "zh-HK": "官：等等先。呢個補錄係邊個做出嘅先？" } }, { "doc_id": 112, "seg_id": 52, "translation": { "en": "MR CHUI:PW1, the arresting officer who administered the caution.", "zh-HK": "MR CHUI：係呢個PW1，拘捕人員、警誡人員。" } }, { "doc_id": 112, "seg_id": 53, "translation": { "en": "COURT:Exactly, now he says that he only wants to call the third prosecution witness, he says that the third …", "zh-HK": "官：咪係囉，咁但係佢而家話凈係想叫第三個控方證人，佢話第三..." } }, { "doc_id": 112, "seg_id": 54, "translation": { "en": "MR CHUI:There are allegations, complaints about PW3…", "zh-HK": "MR CHUI：係有指控，有投訴關於第三證人..." } }, { "doc_id": 112, "seg_id": 55, "translation": { "en": "COURT:Right, right, right.", "zh-HK": "官：係呀，係吖，係吖。" } }, { "doc_id": 112, "seg_id": 56, "translation": { "en": "MR CHUI:… while on board the vehicle on the way back to police station, against this PW3.", "zh-HK": "MR CHUI：...喺返緊警署途中喺車廂內，針對呢個第三證人。" } }, { "doc_id": 112, "seg_id": 57, "translation": { "en": "..........", "zh-HK": ".........." } }, { "doc_id": 112, "seg_id": 58, "translation": { "en": "COURT:Hang on, because you are not able to locate this witness so as to arrange him to comes to testify,…", "zh-HK": "官：等等。因為你哋係唔能夠搵到呢個人出嚟作證，..." } }, { "doc_id": 112, "seg_id": 59, "translation": { "en": "MR CHUI:That’s right.", "zh-HK": "MR CHUI：係。" } }, { "doc_id": 112, "seg_id": 60, "translation": { "en": "COURT:… that’s what you mean?", "zh-HK": "官：...你嘅意思係？" } }, { "doc_id": 112, "seg_id": 61, "translation": { "en": "MR CHUI:No, I may not mind telling the court that this witness will -- he himself was involved in another criminal case and has been convicted.", "zh-HK": "MR CHUI：唔係，或者我唔介意講畀法庭聽，呢個證人就會 -- 本人自己牽涉另外一單刑事案件，已經定咗罪。" } }, { "doc_id": 112, "seg_id": 62, "translation": { "en": "..........", "zh-HK": ".........." } }, { "doc_id": 112, "seg_id": 63, "translation": { "en": "COURT:What you mean is, let me see if I understand what you mean, you are trying to say that in any event, PW3, you will not call him?", "zh-HK": "官：你嘅意思，睇下我明唔明你嘅意思，你嘅意思係，無論如何，第三控方證人，你都唔會傳召㗎喇？" } }, { "doc_id": 112, "seg_id": 64, "translation": { "en": "MR CHUI:Correct.", "zh-HK": "MR CHUI：正確。" } }, { "doc_id": 112, "seg_id": 65, "translation": { "en": "COURT:Yes. However, if in their grounds of objection, there is anything involving any complaint against this police officer, which means that on the way, the way back to the police station, this police officer (PW3) acted in any way improper, which might have caused him to sign on the post-record of the cautioned statement subsequently, you will consider not to produce the post-record, is that right?", "zh-HK": "官：係，咁但係如果佢哋涉及嘅反對理由入面係有牽涉有任何對於呢一名警員嘅投訴，而意思即指係喺途中返回警署途中，呢名警員（第三控方證人）有作出任何嘅不當嘅作為，而有可能導致到佢之後喺個補錄警誡供詞上簽署嘅話，你哋會考慮唔呈遞個補錄，係咪呀？" } }, { "doc_id": 112, "seg_id": 66, "translation": { "en": "MR CHUI:Correct.", "zh-HK": "MR CHUI：正確。" } }, { "doc_id": 112, "seg_id": 67, "translation": { "en": "COURT:That means, in that case, you may only rely on a verbal confession?", "zh-HK": "官：咁即係話喺咁嘅情形之下，你哋有可能係只係倚賴一個口頭招認？" } }, { "doc_id": 112, "seg_id": 68, "translation": { "en": "MR CHUI:Verbal confession, right.”", "zh-HK": "MR CHUI：口頭招認，係。」" } }, { "doc_id": 112, "seg_id": 69, "translation": { "en": "It can be seen from the above conversation that the prosecution’s initial intention was not to rely on any cautioned statement other than the verbal confession, thereby relieving themselves of the requirement of calling Chia Wah. However, in the defence’s view, it was not as simple as the prosecution suggested because the truthfulness of the verbal confession did have bearing on PW2’s integrity, and whether PW2 was honest and law-abiding was in turn relevant to whether he had witnessed and acknowledged the alleged subsequent improper conduct of Chia Wah and other police officers on board the police vehicle. Therefore, after all, Chia Wah’s testimony was necessary. The defence counsel’s subsequent representation could tell that it was plainly the defence position:", "zh-HK": "從以上的對話可見，控方最初的想法是，控方不依賴口頭招認以外的任何警誡供詞，他們便無須傳召謝華。然而，辯方卻認為情況實不如控方所聲稱的簡單，因為口頭招認的真偽，涉及到PW2的行為操守，而PW2是否正直守法，又和他是否曾在較後時間即車上目睹及認可謝華等警務人員的據稱不當行為有關，所以謝華還是有須要作供的。從辯方大律師的後續表述看來，辯方這個立場是相當明顯的：" } }, { "doc_id": 112, "seg_id": 70, "translation": { "en": "“MR CHEUNG:Your Ladyship, I understand, but perhaps I -- what I am now considering is that if the prosecution rely on the verbal confession made at the material time at the scene, it is still necessary to call this PW3 because -- that is to say, the defence’s objection is that no verbal confession has been said, none has been made. But on the way back to the police station, namely on the way from Shau Kei Wan to Chai Wan Police Station, on board the vehicle, …", "zh-HK": "「MR CHEUNG：閣下，我明白，但係我或者--而家我現時考慮緊嘅就係，如果係控方倚賴嗰個當時現場口頭招認，亦都係需要傳召呢個控方第三證人，因為--即係辯方嗰個反對理由就係話呢，口頭招認係冇講過，冇作出嘅，咁但係喺返差館途中，即係喺筲箕灣至到柴灣警署途中，喺架車上面，..." } }, { "doc_id": 112, "seg_id": 71, "translation": { "en": "COURT:Hang on.", "zh-HK": "官：等等。" } }, { "doc_id": 112, "seg_id": 72, "translation": { "en": "MR CHEUNG:... there were PW1, PW3, PW4 and possibly PW2, while PW1 has conducted himself improperly, and PW3 has also conducted himself improperly, on board the police vehicle, and this -- I think, also has bearing on whether the verbal confession has been made, and this …", "zh-HK": "MR CHEUNG：...就有第一證人、第三證人、第四證人，有可能第二證人喺度嘅，咁樣，而喺第一證人係作過一啲不當嘅行為，第三證人亦都係作過一啲不當行為，喺警車度，咁呢個係--我諗亦都會反映到係究竟嗰個口頭招認有冇作出呀，咁呢個..." } }, { "doc_id": 112, "seg_id": 73, "translation": { "en": "COURT:Wait, wait, wait. You say that the verbal confession was never made?", "zh-HK": "官：等等，等等，等等。你話口頭招認係冇作出？" } }, { "doc_id": 112, "seg_id": 74, "translation": { "en": "..........", "zh-HK": ".........." } }, { "doc_id": 112, "seg_id": 75, "translation": { "en": "COURT:Hang on. What you say is, at the time when the accused allegedly made the verbal confession at the scene, …", "zh-HK": "官：等等。你嘅講法係，喺佢哋話被告人喺當場有作出口頭招認嘅時候，..." } }, { "doc_id": 112, "seg_id": 76, "translation": { "en": "MR CHEUNG:Right.", "zh-HK": "MR CHEUNG：係。" } }, { "doc_id": 112, "seg_id": 77, "translation": { "en": "COURT:… in fact, the accused did not make any verbal confession, and at that time at the scene, or at or before he allegedly confessed verbally, there was not any improper conduct on the part of the police?", "zh-HK": "官：...事實上，被告人冇作出口頭招認，而喺當其時喺現場或者係喺佢哋話佢作出口頭招認嘅時候或之前，都冇任何來自警方嘅不當作為？" } }, { "doc_id": 112, "seg_id": 78, "translation": { "en": "MR CHEUNG:There was none.", "zh-HK": "MR CHEUNG：冇。" } }, { "doc_id": 112, "seg_id": 79, "translation": { "en": "COURT:The improper conduct came only after the arrest, on the way of getting onto the police vehicle, it was not until then did PW1 and PW3 act improperly, resulted in the subsequent untruthful post-record?", "zh-HK": "官：不當嘅作為係喺拘捕咗之後，上警車途中，先至由第一同埋第三控方證人作出，所以先至導致到有其後一個不盡不實嘅呢個post-record作出嚟？" } }, { "doc_id": 112, "seg_id": 80, "translation": { "en": "MR CHEUNG:Yes, that’s right.", "zh-HK": "MR CHEUNG：係，係。" } }, { "doc_id": 112, "seg_id": 81, "translation": { "en": "COURT:Well, under such circumstances …", "zh-HK": "官：唔。如果喺咁嘅情..." } }, { "doc_id": 112, "seg_id": 82, "translation": { "en": "MR CHUI:If that’s the case, there would be no influence on the facts of the case, the first, the second, about voluntariness.", "zh-HK": "MR CHUI：如果係咁，都唔影響咗嗰個案情嗰部分，第一；第二，就關於嗰個自願性嗰方面。" } }, { "doc_id": 112, "seg_id": 83, "translation": { "en": "COURT:I understand, but as to your part, I just cannot deal with it piecemeal but have to do the whole thing. That is to say, you cannot say that I-- I think that if that’s what the defence say, the defence say that even if you do not produce the post-record, they will require you to produce it and have a voir dire, going through the entire voir dire first. You cannot ask for piecemeal, I do not -- because of the absence of PW3, [we] give up the whole post-record. The reason is, what is a post-record[?] A post-record is your recording of what allegedly happened at the scene which they say never even happened. But after that point in time, between two periods, there were some improper conduct involving PW3. You cannot simply say, ‘Well, let me have it in piecemeal.’ The prosecution, while PW3 was also involved, then [we] give up the latter part and only have the verbal confession.”", "zh-HK": "官：我知，但係你咁樣，我係唔能夠斬件做嘅，成套要做晒，即係你唔可以話我--我覺得如果辯方咁樣講法，辯方話，即使你話你唔呈遞個post-record，佢都要叫你呈遞，要做咗個voir dire，全套做晒個voir dire先，你唔可以話斬件，我唔--因為PW3冇咗，post-record嗰度我全部唔要喇，因為乜嘢叫post-record，就post-record就係你recording what allegedly happened at the scene which they say never even happened，但係喺嗰個時候之後，between兩個時段係有一啲不當嘅行為，而牽涉到第三控方證人嘅，你唔可以話『呀，咁我斬件喇。』控方--第三控方證人又牽涉嘅，咁後面嗰橛我全部唔呈遞喇，凈係口頭招認。」" } }, { "doc_id": 112, "seg_id": 84, "translation": { "en": "However, the above discussion was only followed by a mere variation of the prosecution’s initial approach. The prosecution indicated that the verbal confession and the post-record in the notebook would be produced together, just as what the trial judge understood. As to whether Chia Wah would be called, the trial judge seemed to opine that the ultimate decision was in the hands of the prosecution, or the prosecution just could do nothing to arrange him to come to court: “this person cannot be made available means he cannot be made available” and “just cannot do anything even if he is so required”. Further, the trial judge and the counsel on fiat both took the view that whatever Chia Wah had or had not done in the present case and the fact that Chia Wah was forced to leave the police force because of having committed crime himself, the court and the jury could still reach a proper conclusion through cross-examination by the defence of other prosecution witnesses.", "zh-HK": "不過，上述討論的結果只是令控方改變初衷。控方表示會把口頭招認和記事冊的補錄一併呈遞，就如原審法官所理解的一樣。至於是否傳召謝華，原審法官似乎認為最終的決定權在控方，又或控方對安排他出庭無能為力：「冇咗呢個人就冇咗呢個人」、「要都冇辦法」。此外，原審法官和外判主控官都認為，謝華在本案做過什麼、沒做過什麼，以及謝華因為自己犯法而被逼離開警隊的事實，都可透過辯方對其他控方證人的盤問而讓法庭或陪審團得出應有的結論。" } }, { "doc_id": 112, "seg_id": 85, "translation": { "en": "It was under such circumstances that the trial judge ordered the trial to commence on 31 August 2016 (ie about five weeks afterwards) as scheduled.", "zh-HK": "就是這樣，原審法官下令案件須於2016年8月31日（即約五星期後）如期開審。" } }, { "doc_id": 112, "seg_id": 86, "translation": { "en": "Relevant law", "zh-HK": "相關法律" } }, { "doc_id": 112, "seg_id": 87, "translation": { "en": "As the applicant’s counsel had indicated at the hearing, the law regarding calling witnesses by the prosecution is in fact really clear and specific.", "zh-HK": "正如申請方在聆訊中指出，與傳召控方證人有關的法律，其實是相當明確的。" } }, { "doc_id": 112, "seg_id": 88, "translation": { "en": "On this issue, one of the most classic precedents in modern times is R v Oliva (1965) 49 Cr App R 298. In that case, after going through the precedents in the last hundred odd years, the English Court of Criminal Appeal indicated (see the part between the end of p 309 and top of p 310 of the judgment):", "zh-HK": "在這個議題上，當代最經典的案例之一是R v Oliva (1965) 49 Cr App R 298。在該案，英國刑事上訴法庭在參閱過對上一百多年的案例後表示（見判詞的309末端至310頁頂部）：" } }, { "doc_id": 112, "seg_id": 89, "translation": { "en": "“….. the principles are plain. The prosecution must of course have in court the witnesses whose names are on the back of the indictment, but there is a wide discretion in the prosecution whether they should call them either calling and examining them, or calling and tendering them for cross-examination.", "zh-HK": "“….. the principles are plain. The prosecution must of course have in court the witnesses whose names are on the back of the indictment, but there is a wide discretion in the prosecution whether they should call them either calling and examining them, or calling and tendering them for cross-examination." } }, { "doc_id": 112, "seg_id": 90, "translation": { "en": "The prosecution do not, of course, put forward every witness as a witness of truth but where the witness’s evidence is capable of belief, then it is their duty, well recognised, that he should be called, even though the evidence that he is going to give is inconsistent with the case sought to be proved. Their discretion must be exercised in a manner which is calculated to further the interest of justice, and at the same time be fair to the defence. If the prosecution appear to be exercising that discretion improperly, it is open to the judge of trial to interfere and in his discretion in turn to invite the prosecution to call a witness, and if they refuse, there is the ultimate sanction in the judge himself calling that witness.”", "zh-HK": "The prosecution do not, of course, put forward every witness as a witness of truth but where the witness’s evidence is capable of belief, then it is their duty, well recognised, that he should be called, even though the evidence that he is going to give is inconsistent with the case sought to be proved. Their discretion must be exercised in a manner which is calculated to further the interest of justice, and at the same time be fair to the defence. If the prosecution appear to be exercising that discretion improperly, it is open to the judge of trial to interfere and in his discretion in turn to invite the prosecution to call a witness, and if they refuse, there is the ultimate sanction in the judge himself calling that witness.”" } }, { "doc_id": 112, "seg_id": 91, "translation": { "en": "A more recent case R v Balmforth [1992] Crim LR 825 of the English Court of Appeal also shows (see the decision in the headnote):", "zh-HK": "一個較近期的英國上訴庭案例R v Balmforth [1992] Crim LR 825亦顯示（見裁決部分）：" } }, { "doc_id": 112, "seg_id": 92, "translation": { "en": "“Held, allowing the appeal, the authorities showed that the prosecution must have available the witnesses on whose evidence the committal was founded but it had a discretion in determining whether witnesses were capable of belief; if they were so capable the prosecution was under a duty to call them and either examine them or tender them for cross-examination.”", "zh-HK": "“Held, allowing the appeal, the authorities showed that the prosecution must have available the witnesses on whose evidence the committal was founded but it had a discretion in determining whether witnesses were capable of belief; if they were so capable the prosecution was under a duty to call them and either examine them or tender them for cross-examination.”" } }, { "doc_id": 112, "seg_id": 93, "translation": { "en": "Finally, in Blackstone’s Criminal Practice 2017, there are also clear and comprehensive discussions on this issue, which also go further and explain the reasons behind the relevant law and various possible scenarios to suggest some pragmatic approaches (see paragraphs D16.17 to D16.24).", "zh-HK": "最後，Blackstone’s Criminal Practice 2017 亦對這個議題有相當細緻和清晰的討論，甚至解釋了有關法律背後的理由和各種可能出現的情況，從而指出某些相應的務實做法（見D16.17至D16.24段）。" } }, { "doc_id": 112, "seg_id": 94, "translation": { "en": "Having considered the contents of the above authorities, we think that the relevant law can be summarized into the following ten points:", "zh-HK": "縱觀上述各典據的內容，本庭認為可把有關法律撮要為以下十個重點：" } }, { "doc_id": 112, "seg_id": 95, "translation": { "en": "Once the prosecution have named a person on the back of the indictment, they must summon this witness to attend court, and as to whether this witness will actually be called at the trial to testify, it depends on whether certain agreement can be reached between the prosecution and the defence.", "zh-HK": "控方一旦把某人的名字納入〈控方證人列表〉，他們便必須傳召這人出庭作供，到審訊時是否真正傳召這人出庭則視乎控辯雙方能否達成某些協議。" } }, { "doc_id": 112, "seg_id": 96, "translation": { "en": "In calling a witness on the back of the indictment, it is open to the prosecution to either examine the witness in chief first and then leave him/her to the defence for cross-examination, or tender the witness directly for cross-examination with no examination-in-chief.", "zh-HK": "傳召〈列表〉上的證人出庭作供，可先由控方主問，然後交由辯方盤問，又或控方不主問，直接交由辯方盤問；控方可自由選擇。" } }, { "doc_id": 112, "seg_id": 97, "translation": { "en": "Provided that a witness on the back of the indictment appears to be capable of belief, the prosecution must perform their duty in point (1) above even if the evidence of that witness may be inconsistent with the case that they seek to prove.", "zh-HK": "只要某〈列表〉證人的證供看來可信（capable of belief），控方便必須履行上述第一點所提到的責任，哪怕該證人的證供與控方想證明的案情有出入。" } }, { "doc_id": 112, "seg_id": 98, "translation": { "en": "It is only when the prosecution find that a witness on the back of the indictment is not capable of belief that they may exercise their discretion and do not do as required in point (1) above.", "zh-HK": "控方唯一可以酌情不履行上述第一點所提到的責任的情況，是當控方認為某〈列表〉證人不可信。" } }, { "doc_id": 112, "seg_id": 99, "translation": { "en": "Before deciding that a witness on the back of the indictment is not credible, the prosecution must consider the question in a manner which would further the interests of justice without doing any prejudice intentionally to the defence.", "zh-HK": "在認定某〈列表〉證人不可信之前，控方必須公正地對問題作出考慮，不刻意對辯方不利。" } }, { "doc_id": 112, "seg_id": 100, "translation": { "en": "If the court has any doubt about the prosecution’s decision in point (5) above, it may first invite the prosecution to call the witness in question, who is named on the back of the indictment; and the court is entitled to call the witness on his own motion if the prosecution refuse.", "zh-HK": "假如法庭對控方在上述第五點的決定有疑問，法庭可先邀請（invite）控方傳召與問題有關的〈列表〉證人作供；如果控方仍然決絕，法庭有權自行傳召該證人作供。" } }, { "doc_id": 112, "seg_id": 101, "translation": { "en": "Even if the prosecution reasonably believe that a witness on the back of the indictment is not capable of belief, they are still obliged to arrange for the attendance of the witness on the date of the trial for the defence to consider if they want to call him/her as a defence witness.", "zh-HK": "即使控方有理由相信某〈列表〉證人不可信，控方仍然有責任安排該證人在審訊當日到庭，以便辯方考慮是否傳召他為辯方證人。" } }, { "doc_id": 112, "seg_id": 102, "translation": { "en": "The above discussions on a witness named on the back of the indictment being not capable of belief presupposes that something has occurred between the case being committed for trial and its commencement, which is sufficient for the prosecution to cast doubt on the credibility of that witness.", "zh-HK": "上述有關〈列表〉證人不可信的討論，是假設某些發生於案件移送法院審訊至案件開審期間的事，足以令控方對某〈列表〉證人的可信性產生疑問。" } }, { "doc_id": 112, "seg_id": 103, "translation": { "en": "If the prosecution do not believe a person’s evidence at the outset, they simply do not need to include this person’s written record in the committal bundle, which also means that they do not need to name this person as a witness on the back of the indictment and are just required to include this person’s written record as unused material to be disclosed to the defence.", "zh-HK": "如果從一開始便不相信某人的證供，控方根本無須把這人的筆錄納入〈交付文件冊〉（committal bundle），亦即無須把他的名字納入〈控方證人列表〉；控方只須把這人的筆錄包括在〈未經使用的資料〉（unused material）向辯方披露即可。" } }, { "doc_id": 112, "seg_id": 104, "translation": { "en": "The above discussions have also presupposed that the prosecution are able to arrange the untrustworthy witness on the back of the indictment to attend court for the defence to decide if they would call him/her as a defence witness. If such arrangement is really beyond the prosecution’s control, the court is entitled to deal with the matter in its discretion depending on the actual circumstances of the case.", "zh-HK": "上述的討論，也假設了控方有能力把不可信的〈列表〉證人安排到法庭，由辯方決定是否傳召他作辯方證人；如果這事情實在超出控方的控制，法庭可根據案件的實際情況酌情處理。" } }, { "doc_id": 112, "seg_id": 105, "translation": { "en": "Applicability of the relevant principles in the present case", "zh-HK": "有關原則在本案的適用" } }, { "doc_id": 112, "seg_id": 106, "translation": { "en": "The respondent do not dispute the law regarding calling of witnesses by the prosecution. Their assertion is that Chia Wah himself, a detective police constable of the Narcotics Bureau, had been convicted and sentenced for possession of a dangerous drug, and therefore he, as a witness on the back of the indictment, was not capable of belief, and the prosecution were entitled not to call him to court to give evidence.", "zh-HK": "答辯方對於與傳召控方證人有關的法律，並無爭議。他們力陳的是，謝華身為毒品調查科的探員，卻因藏毒而被定罪和判刑，所以他不是一名可信的〈列表〉證人，所以控方有權不傳召他出庭作供。" } }, { "doc_id": 112, "seg_id": 107, "translation": { "en": "In our view, the respondent’s argument cannot stand, nor could it have helped solving the problem that arose at the trial. The reasons will be analysed as follows: First, according to the precedents provided by both sides and those other cases referred to therein, the circumstances which render a witness on the back of the indictment suddenly not capable of belief are all related to the case that the witness is concerned with. For instance, a very good example was where the victim in a wounding case suddenly changed his story and went to solicitors to make affidavits indicating that the accused had not been an assailant who attacked him.", "zh-HK": "本庭認為，答辯方的說法不能成立，對於在原審時出現的問題亦於事無補，理由本庭會逐步分析如下。首先，根據與訟雙方提供的案例，以及在這些案例裡提到的其他案例，能令某位〈列表〉證人突然變得不可信的情況，全部都與案件本身有關。傷人案中的據稱受害人突然翻供，聘請律師製作誓章表示襲擊他的不是被告人，就是一個很好的例子。" } }, { "doc_id": 112, "seg_id": 108, "translation": { "en": "The respondent asserted that the above example was only one of the circumstances rendering a witness on the back of the indictment not capable of belief, and other [such] circumstances should also include those that might seriously attack the witness’s integrity. The point is, despite our repeated questioning, the respondent remained unable to give a specific answer to indicate “where to draw the line” for our consideration, which is completely unsatisfactory. Conversely, unless the witness had conducted himself/herself in any way which was directly related to a certain case, such as a volte face in his/her evidence, we cannot see how the prosecution could conclude that the witness has become not capable of belief in the case because of other problems. If the prosecution were in fact trying to say that the defence would make a fuss out of those other problems about the witness, with respect, it was something totally irrelevant with this issue.", "zh-HK": "答辯方力稱，上述的情況，只是其中一種可令〈列表〉證人變得不可信的情況，其他情況還應該包括任何可令〈列表〉證人的誠信受嚴重打擊的情況。問題是，在本庭的多番追問下，答辯方仍然無法提供一個‘在哪裡劃界’的具體答案讓本庭考慮，這是完全不理想的。倒過來，除非證人有任何如翻供等與某宗案件直接有關的行為，本庭實在看不出控方將如何能斷定證人會因為其他問題而在該案變得不可信。如果控方的真正意思是，辯方會就證人的其他問題而大造文章，那根本就是一個與本議題全然無關的事情。" } }, { "doc_id": 112, "seg_id": 109, "translation": { "en": "Finally, from the above extract of the conversation in court, it can be seen that the counsel on fiat had never seriously explained why Chia Wah was not to be called and had never said he did not know Chia Wah’s whereabouts, the trial judge nevertheless readily accepted the prosecution’s decision without considering that she herself might call Chia Wah for the defence to cross-examine. This is a material procedural irregularity. This is also why we come to the view that even if (and only “even if”) the respondent had submitted correctly on the definition of “not capable of belief”, the outcome still could not help in rectifying the above mistake.", "zh-HK": "最後，從節錄於上文的庭上對話可見，外判主控官從無認真解釋不傳召謝華的理由，也從未說過不知道謝華的去向，可是原審法官卻輕易接受了控方的決定，而且沒有考慮可自行傳召謝華給辯方盤問。這是一個在程序上的‘重大不當之處’（material irregularity）。這也是本庭何以認為，就算（只是‘就算’）答辯方對於‘不可信’的定義的陳詞正確，它的結果還是對上述的失誤於事無補。" } }, { "doc_id": 112, "seg_id": 110, "translation": { "en": "For completion, we will add this. The respondent has correctly pointed out in their submissions that there are precedents involving voir dire (such as Leung Wing-ning v R [1981] HKLR 96) in support of the prosecution calling other witnesses who were at the scene in response to the defence allegations against a certain specific witness. Nevertheless, these precedents do not support the prosecution not to call any witness named on the back of the indictment upon the defence’s request, and in fact this issue does not come up in these precedents.", "zh-HK": "為求全面，本庭會補充一句。答辯方曾在陳詞期間指出，有涉及案中案的案例（如Leung Wing-ning v R [1981] HKLR 96）支持控方可傳召其他在場證人以應對辯方就某特定證人而作出的指控，這是對的。不過，這些案例並不支持控方可在辯方要求下不傳召〈列表〉證人出庭作供，這個議題根本未有在這些案例中出現。" } }, { "doc_id": 112, "seg_id": 111, "translation": { "en": "For the above reasons, we find that the first and the second grounds of appeal have been established.", "zh-HK": "基於上述的理由，本庭認為上訴理由（1）和（2）成立。" } }, { "doc_id": 112, "seg_id": 112, "translation": { "en": "Other grounds of appeal", "zh-HK": "其他上訴理由" } }, { "doc_id": 112, "seg_id": 113, "translation": { "en": "In the light of our decision in para 36 above, it is not necessary to deal with the applicant’s other grounds of appeal.", "zh-HK": "基於本庭在上文第36段的裁決，申請人的其他的上訴理由已無需處理。" } }, { "doc_id": 112, "seg_id": 114, "translation": { "en": "Decision", "zh-HK": "判決" } }, { "doc_id": 112, "seg_id": 115, "translation": { "en": "We grant leave to the applicant to appeal against his conviction and allow his appeal, quash the conviction, and set aside the sentence. With no objection from the applicant, we order the present case be remitted to the Court of First Instance for retrial before another judge with a jury. In the meantime, the applicant is to be remanded in the custody of Correctional Services Department.", "zh-HK": "本庭批准申請人就他的定罪提出上訴，並裁定他的上訴得直，申請人的定罪和判刑撤銷。在申請人不反對下，本庭下令把本案發還原訟法庭由另外一位法官會同陪審團重審，期間申請人須繼續還押，由懲教署看管。" } }, { "doc_id": 112, "seg_id": 116, "translation": { "en": "Patrick Cheung, instructed by S H Chan & Co, assigned by the Director of Legal Aid, for the applicant", "zh-HK": "答辯人：由律政司助理刑事檢控專員黎劍華先生代表" } }, { "doc_id": 112, "seg_id": 117, "translation": { "en": "Derek Lai, Assistant Director of Public Prosecutions, of the Department of Justice, for the respondent", "zh-HK": "申請人：由法律援助署委派陳淑雄律師行轉聘張維新大律師代表" } }, { "doc_id": 113, "seg_id": 1, "translation": { "en": "The applicant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The particulars of offence stated that the applicant, on the 7th day of August, 2012, at the 1st floor staircase, Orchid House, 167-173A Sai Yeung Choi Street North, Mongkok, Kowloon, Hong Kong, unlawfully trafficked in a dangerous drug, namely 26.72 grammes of a crystalline solid containing 25.29 grammes of methamphetamine hydrochloride.", "zh-HK": "申請人被控一項「販運危險藥物」罪，違反香港法例第 134 章「危險藥物條例」第 4 (1)(a) 及 (3) 條。罪行詳情指申請人於2012 年8 月7 日，在香港九龍旺角西洋菜北街167至173A號芝蘭樓1樓梯間，非法販運危險藥物，即內含25.29克甲基苯丙胺鹽酸鹽的26.72克晶狀固體。" } }, { "doc_id": 113, "seg_id": 2, "translation": { "en": "The applicant was tried before M Poon J (the judge) and a jury. On 15th August, 2014，the jury found the applicant guilty of the offence of trafficking in a dangerous drug. On the same day, the judge sentenced the applicant to 7 years and 6 months’ imprisonment.", "zh-HK": "申請人在高等法院原訟法庭法官潘‍敏‍琦 (原審法官) 會同陪審團席前受審。2014年8月15日，陪審團裁定申請人「販運危險藥物」罪罪名成立；同日，原審法官判申請人監禁7年6個月。" } }, { "doc_id": 113, "seg_id": 3, "translation": { "en": "The applicant now seeks leave to appeal against conviction.", "zh-HK": "申請人不服定罪，現提出上訴許可申請。" } }, { "doc_id": 113, "seg_id": 4, "translation": { "en": "On 14th May, 2015, we granted leave to appeal at the conclusion of the hearing, treated it as the hearing of the appeal, allowed the appeal, set aside the conviction and sentence, and ordered a re-trial. We now hand down these reasons for judgment.", "zh-HK": "2015年5月14日，本庭經聆訊後批准上訴許可，視之為正式上訴，判上訴得直，撤銷有關控罪及刑期，並下令重審。本庭現頒下判案理由書。" } }, { "doc_id": 113, "seg_id": 5, "translation": { "en": "The prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 113, "seg_id": 6, "translation": { "en": "Around 9:35pm on 7th August, 2012，PC11712 (PW1) saw the applicant in Sai Yeung Choi Street North. At the material time, the applicant was holding a helmet in his hand. He appeared nervous and looked around from time to time. Thereafter, PW1 intercepted the applicant on the pavement outside Orchid House, where he revealed his identity and demanded a search. PC34970, PC11761 (PW2), WPC9654 (PW3) and Sergeant 52703 (PW4) arrived at the scene at different stages.", "zh-HK": "2012年8月7日晚上大約9時35分，警員 11712 (控方第一證人) 在西洋菜北街看到申請人，當時申請人手持一個頭盔，神色慌張，不時四周張望。之後，控方第一證人在芝蘭樓外行人路上截停申請人，向其表露身份並要求搜查。警員 34970，警員 11761 (控方第二證人)，女警 9654 (控方第三證人) 及警長 52703 (控方第四證人) 亦先後到達現場。" } }, { "doc_id": 113, "seg_id": 7, "translation": { "en": "As the applicant requested not to be searched in the street, PW1 and PW2 then took him to the staircase of the Orchid House, where the search was conducted while PW3 and PW4 were on guard at a higher position. PC34970 did not follow the other officers in entering the staircase of the Orchid House with the applicant, nor did he take part in the search and arrest. During the search, PW1 found from the applicant’s person 3 packets of dangerous drug, one hidden underneath his belt around his waist region, the other one hidden in the helmet’s secret compartment for comb and the last one hidden between the layers of the helmet. PW1 cautioned the applicant, who replied under caution, ‘I have nothing to say.", "zh-HK": "因為申請人要求不要在街上搜身，控方第一及第二證人便帶他進入芝蘭樓梯間進行搜身；而控方第三及第四證人則在樓梯較高位置戒備。警員 34970 沒有跟隨其他警員與申請人進入芝蘭樓梯間，也沒有參與搜查和拘捕工作。搜身期間，控方第一證人在申請人身上搜到涉案的3包毒品，一包藏於他腰間皮帶位置、一包藏於他電單車頭盔內之梳的暗格內、一包藏於頭盔夾層內。控方第一證人警誡申請人，申請人在警誡下回答：「我無嘢講」。" } }, { "doc_id": 113, "seg_id": 8, "translation": { "en": "Thereafter, the applicant was taken back to police station for a second search. The police seized from his person 4 mobile phones, and cash of HK$2,536.00 and RMB100.00.", "zh-HK": "之後，申請人被帶返旺角警署進行第二次搜身。警方在他身上檢獲四部手提電話、現金2,536.00港元和100.00元人民幣。" } }, { "doc_id": 113, "seg_id": 9, "translation": { "en": "Defence case", "zh-HK": "辯方案情" } }, { "doc_id": 113, "seg_id": 10, "translation": { "en": "The applicant elected to give evidence. His main defence was that he was not in possession of any dangerous drug at the material time but was framed by the police by way of planting instead.", "zh-HK": "申請人選擇作供，其主要案情是案發時他並沒管有任何毒品，他是被警方插贓嫁禍的。" } }, { "doc_id": 113, "seg_id": 11, "translation": { "en": "The applicant claimed that he was searched twice by the police. The first search was conducted in the street outside Orchid House, during which no dangerous drugs were found. Nonetheless, PW1 took away his waist bag and helmet, and then handed them over to PW3. Thereafter, PW1, PW2 and PC34970 took him to the staircase of Orchid House for a second search. The police demanded him to strip off but still no drugs were found. PW3 and PW4 did not enter the staircase until the second search was completed. PW4 suddenly announced that 2 packets of dangerous drug were found from applicant’s helmet. The applicant immediately said, ‘You guys are practically framing me!’ PW4 responded by saying, ‘If you’ve got anything to say, say it to the judge.’", "zh-HK": "申請人說警方搜了他兩次身：第一次是在街上芝蘭樓外，當時沒有搜出毒品，但控方第一證人取去了他的腰包及頭盔，並交了給控方第三證人；之後，控方第一證人、第二證人及警員 34970 帶他入芝蘭樓樓梯間進行第二次搜身，警員要求他脫光衣服，但仍沒有搜出毒品。第二次搜身完畢後，控方第三及第四證人才進入梯間，控方第四證人突然說在申請人頭盔內搜出兩包毒品。申請人立即說：「你地即係屈我！」控方第四證人回應：「你有咩嘢，同個官講！」。" } }, { "doc_id": 113, "seg_id": 12, "translation": { "en": "The applicant further said that he was never cautioned and neither did he say ‘I have nothing to say’ under caution.", "zh-HK": "申請人又說，自己從沒有被警誡，亦沒有在警誡下說過「我無嘢講」。" } }, { "doc_id": 113, "seg_id": 13, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 113, "seg_id": 14, "translation": { "en": "The applicant raised 3(sic) grounds of appeal.", "zh-HK": "申請人提出三個上訴理由。" } }, { "doc_id": 113, "seg_id": 15, "translation": { "en": "The first ground of appeal was that the judge ‘forced’ the applicant to forgo his request to the Prosecution to call PC34970 for the defence to cross-examine by reason of such request being made too late. As such, the applicant was denied of the right and opportunity to cross-examine a crucial witness resulting in an unfair trial.", "zh-HK": "第一個上訴理由是，原審法官以辯方太遲作出要求為由，「逼使」申請人放棄要求控方傳召警員 34970 給辯方盤問，因此剝奪了申請人盤問關鍵證人的機會及權利，導致審訊不公。" } }, { "doc_id": 113, "seg_id": 16, "translation": { "en": "Mr Wong for the applicant submitted that although PW1 denied that PC34970 had entered the Orchid House, none of the prosecution witnesses had ever told the court of his whereabouts. It seemed that PC34970 suddenly disappeared once the applicant was taken into the Orchid House. Thus, as to whether the dangerous drug involved in this case was planted by the police officers as alleged by the applicant, PC34970’s testimony would indeed be quite crucial and directly relevant to the defence case. The Prosecution originally had prepared to call PC34970 for the defence to cross-examine in response to their request. However, the judge eventually forced the applicant to forgo his request to the Prosecution to call PC34970 for the defence to cross-examine by reason of such request being made so late, which might otherwise lead to the prolongation of the length of trial (since the appellant did not make his request to call PC34970 during the pre-trial review).  As such, the judge denied the applicant of the right and opportunity to cross-examine a crucial witness, which resulted in an unfair trial.", "zh-HK": "代表申請人的王‍大律師陳詞說，雖然控方第一證人否認警員 34970 有進入芝蘭樓，但從沒有一個控方證人交代過他的去向，當申請人被帶入芝蘭樓時，警員 34970 似乎突然不知所蹤。因此，涉案的毒品，是否如上訴人所說是警員們插贓嫁禍，警員 34970 的證供實對辯方案情是直接有關及具相當關鍵性。當控方應辯方要求原先亦準備傳召警員 34970 給辯方盤問，原審法官卻以辯方太遲作出要求為由 (因上訴人在預審時，並沒有要求傳召警員 34970)，可能導致審訊期延長，最終迫使申請人放棄要求控方傳召警員 34970 給辯方盤問。原審法官此舉剝奪了申請人盤問關鍵證人的機會及權利，導致審訊不公。" } }, { "doc_id": 113, "seg_id": 17, "translation": { "en": "The second ground of appeal was that in directing the jury, the judge made unjust and inappropriate comments on the applicant’s case and testimony by saying, ‘Is what he (the applicant) said that it was a set-up credible? Is it reasonable? It is up to you to decide. Do you consider it a fact, as alleged by the defendant, that the case concerned a bunch of lawless police officers blatantly framing him by way of planting? What do you think the truth is? Do take care in making your own judgment and assessment.’", "zh-HK": "第二個上訴理由是，在引導陪審團時，原審法官對申請人的案情及證供作出以下不當及不公之評論：「佢 (申請人) 話砌生豬肉呢樣嘢可唔可信？合唔合理呢？你哋自己決定喇，你哋認為被告所講，呢個本案嚟講係一班無法無天嘅警員明目張膽插贓嫁禍畀佢呢個講法係咪事實呢？各位認為實情係點呢？你哋小心評估同埋衡量喇。」" } }, { "doc_id": 113, "seg_id": 18, "translation": { "en": "Mr Wong pointed out that the judge’s above-mentioned direction was not quoted from the Prosecutor’s final submission since, as a matter of fact, there were no such unfair and unjust remarks in Prosecutor’s final submission. Mr Wong was of the view that the judge should direct the jury to consider the testimony of all the witnesses in a fair and just manner in order to decide whether they were credible and reliable. Mr Wong cited the case of HKSAR v Lee Fuk Hing [2004] 7 HKCFAR 600 in support of his argument. In that case, the judge directed the jury by saying that they should consider that the alleged acts of the police officers involved in the case might cause them to face disciplinary procedures and subject them to criminal prosecution. The defendant in that case was of the view that such saying amounted to directing the jury that the chances of those police officers telling lies were low as compared with other witnesses. The defendant raised it as one of the grounds of appeal and had the conviction quashed by the Court of Final Appeal. See pages 610G-611J in the judgment of Mortimer, Non-Permanent Judge of the Court of Final Appeal. Mr Wong categorically pointed out that as the applicant’s defence was a set-up by the police by way of planting, so the credibility of the prosecution witnesses’ testimony was quite crucial. Nevertheless, the judge’s comment was in no way fair and just. Even though the remark, ‘What do you think the truth is? Do take care in making your own judgment and assessment’, was added at the end, the harm done could not be undone as the jury might have been misled, which in turn caused unfairness to the applicant. On top of that, the fact that such inappropriate comments appeared close to the end of the jury direction had much more serious prejudicial effect on the defence case and its testimony.", "zh-HK": "王大律師指出，原審法官上述的指引並非是引述主控的結案陳詞，因為事實上，主控的結案陳詞從來沒有上述有欠持平公正的措詞。王大律師認為，原審法官理應要求陪審團持平和公正地考慮所有證人的證供，來決定是否可靠和可信。王大律師引援HKSAR v Lee Fuk Hing [2004] 7 HKCFAR 600一案來支持他的論點。在該案中，法官引導陪審團說，他們應考慮到涉案警員被指作出的行為可能令該些警員面對紀律程序和遭受刑事檢控。被告人認為這說法變相是向陪審團表示該些警員撒謊的可能性較其他證人低，並以此為其中一個上訴理由，獲終審法院推翻定罪；見終審法院非常任法官馬天敏在判案書第610G - 611J頁的判詞。王‍大律師力指，申請人的辯護理由正是被警方插贓嫁禍，故控方證人證供的可信性尤為關鍵，而原審法官的評論並不持平公正，即使後加一句「各位認為實情係點呢？你哋小心評估同埋衡量啦」，亦無補於事，令陪審團可能被誤導，使申請人蒙受不公。而這不當評論在引導近尾聲時出現，對辯方案情及證供的傷害性更為嚴重。" } }, { "doc_id": 113, "seg_id": 19, "translation": { "en": "In summing up, Mr Wong submitted that the applicant’s conviction of trafficking in a dangerous drug was unsafe and unsatisfactory based on the first and second grounds of appeal.", "zh-HK": "王大律師總結說，因為第一個及第二個上訴理由，申請人被裁定販運危險藥物罪名成證是不安全及不穩妥。" } }, { "doc_id": 113, "seg_id": 20, "translation": { "en": "Respondent’s response", "zh-HK": "答辯人回應" } }, { "doc_id": 113, "seg_id": 21, "translation": { "en": "The respondent was of the view that the judge had made a fair and detailed summing-up and a clear direction to the jury on all issues.", "zh-HK": "答辯人認為原審法官就本案各項議題已向陪審團作詳細持平的總結和清析的引導。" } }, { "doc_id": 113, "seg_id": 22, "translation": { "en": "In respect of the applicant’s first ground of appeal, the respondent replied that PC34970 was of no significant role. The fact that that officer was not called to the court to give evidence did not cause any unfairness or prejudice to the applicant in the trial. Moreover, the defence just raised in the trial that they ‘might’ need to call one more police officer, ‘349…’, but after the judge gave them time to consider, the defence eventually decided that there was no need to call PC34970 to testify. The judge did not ‘force’ the applicant to forgo his request to call the relevant police officer.", "zh-HK": "就申請人第一項上訴理由，答辯人回應警員 34970 並非關鍵角色，該警員沒被傳召上庭作供並沒有對申請人在審訊中造成任何不公平或不利。而且，辯方在原審時只提出過「可能」需要傳召多一名警員「349…」，但在原審法官給予時間考慮後，辯方最終決定不需要傳召警員 34970 作供。原審法官並沒有「逼使」申請人放棄要求傳召有關警員。" } }, { "doc_id": 113, "seg_id": 23, "translation": { "en": "As to the second ground of appeal, those relevant passages, of which the applicant complained, were only the judge’s citations from the prosecuting counsel’s reply in his submission to the applicant’s allegation of set-up by way of planting against the police for the jury to consider.", "zh-HK": "至於第二項上訴理由，申請人投訴的有關段落只是原審法官就申請人警方插贓嫁禍的說法，引述控方大律師陳詞中的回應來給予陪審團考慮。" } }, { "doc_id": 113, "seg_id": 24, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 113, "seg_id": 25, "translation": { "en": "We shall deal with the first ground of appeal.", "zh-HK": "本庭首先處理第一個上訴理由。" } }, { "doc_id": 113, "seg_id": 26, "translation": { "en": "Prior to the jury empanelment, the judge and counsel representing prosecution and defence discussed the matter on case management. The transcription in connection with the first ground of appeal is as follows:", "zh-HK": "在輪選陪審團之前，原審法官與代表控辯雙方的大律師討論案件管理的事宜。涉及第一個上訴理由的謄本記錄如下：" } }, { "doc_id": 113, "seg_id": 27, "translation": { "en": "Judge:Mr Leung, it wasn’t you who handled the pre-trial review on the last occasion?", "zh-HK": "「官：梁‍大律師，上次預審嘅時候唔係你做嘅？" } }, { "doc_id": 113, "seg_id": 28, "translation": { "en": "MR LEUNG：Yes, that’s right.", "zh-HK": "MR LEUNG：係，冇錯。" } }, { "doc_id": 113, "seg_id": 29, "translation": { "en": "Judge:But in the pre-trial review, Mr Wu (romanization) told me that he would like to have Sergeant 52703 and WPC7654…", "zh-HK": "官：但係預審嘅時候，胡大律師話畀我聽希望代搵沙展 52703同埋女警 7654..." } }, { "doc_id": 113, "seg_id": 30, "translation": { "en": "MR LEUNG:Yes.", "zh-HK": "MR LEUNG：係。" } }, { "doc_id": 113, "seg_id": 31, "translation": { "en": "Judge:… to be identified. Has the identification been arranged yet?", "zh-HK": "官：...辨--畀辨認，安排咗辨認未？" } }, { "doc_id": 113, "seg_id": 32, "translation": { "en": "MR LEUNG:That will be arranged today.", "zh-HK": "MR LEUNG：今日會安排。" } }, { "doc_id": 113, "seg_id": 33, "translation": { "en": "Judge:When will he be given the chance to do the identification?", "zh-HK": "官：幾陣時會到畀佢辨認？" } }, { "doc_id": 113, "seg_id": 34, "translation": { "en": "MS YEW：We’ve told them to arrive here at 9:30am, I mean those witnesses, but I…perhaps (they) haven’t arrived yet. (I’ll) call (them) again…", "zh-HK": "MS YEW：我哋係叫咗佢哋九點半嚟到嘅，嗰啲證人，不過我—或者未到，再叫..." } }, { "doc_id": 113, "seg_id": 35, "translation": { "en": "Judge:So, how come (we) will now—(we) will have one more? If that’s the case, the pre-trial review served no purpose at all, right?", "zh-HK": "官：咁點解而家會--又會多一個？如果唔係個預審咪完全冇用？" } }, { "doc_id": 113, "seg_id": 36, "translation": { "en": "MR LEUNG：Understood, understood.", "zh-HK": "MR LEUNG：明白，明白。" } }, { "doc_id": 113, "seg_id": 37, "translation": { "en": "Judge:since the purpose of pre-trial review is to estimate the number of days required for the trial.", "zh-HK": "官：因為預審就係要預計個審訊需時幾多日。" } }, { "doc_id": 113, "seg_id": 38, "translation": { "en": "MR LEUNG:Understood.", "zh-HK": "MR LEUNG：明白。" } }, { "doc_id": 113, "seg_id": 39, "translation": { "en": "Judge:Well, on that occasion, you told me that 2 more (people) were required to be identified and that has been arranged for him to do so now. Well, it is now said that there will be one more.", "zh-HK": "官：咁你嗰陣時話畀我聽要認多兩個，而家都安排咗畀佢聽喇，咁而家又話有多一個添。" } }, { "doc_id": 113, "seg_id": 40, "translation": { "en": "MR LEUNG：Right—pardon me, just—as a matter of fact, it mainly concerns with those two. As a matter of fact, I mean…", "zh-HK": "MR LEUNG：係--唔係，都係--其實主要都係嗰兩個嘅啫，其實即係..." } }, { "doc_id": 113, "seg_id": 41, "translation": { "en": "Judge:Can I wait indefinitely for you (to tell me) how many?", "zh-HK": "官：我能唔能夠無止境咁等你幾多個？" } }, { "doc_id": 113, "seg_id": 42, "translation": { "en": "MR LEUNG:It is not necessary, not necessary, I mean, I think...", "zh-HK": "MR LEUNG：唔需要嘅，唔需要嘅，即係我諗..." } }, { "doc_id": 113, "seg_id": 43, "translation": { "en": "Judge:Are you able to say to me for certain how many more – are required? On the last occasion, I was told that there would be just those two but the prosecution just now told me that 3 more might have to be called. So, apart from PW1 and PW2, how many more are required to be called, by you?", "zh-HK": "官：你而家能唔能夠確實話畀我聽需要--愛多幾多個？上次就話畀我聽係呢兩個咋喎，但係而家控方頭先講畀我聽話可能要叫多三個喎，咁究竟係除咗第一、第二控方證人之外，需要叫多幾多個呢，你哋？" } }, { "doc_id": 113, "seg_id": 44, "translation": { "en": "MR LEUNG:Just the two (mentioned) previously and perhaps one more, that is 349…", "zh-HK": "MR LEUNG：都係之前嗰兩個同埋可能多一個就係349..." } }, { "doc_id": 113, "seg_id": 45, "translation": { "en": "Judge:Why would there be one more? Why wasn’t I told of that back then?", "zh-HK": "官：點解會有可能多一個，嗰陣時冇講畀我聽嘅？" } }, { "doc_id": 113, "seg_id": 46, "translation": { "en": "MR LEUNG:It’s…", "zh-HK": "MR LEUNG：係..." } }, { "doc_id": 113, "seg_id": 47, "translation": { "en": "Judge:Why wasn’t I told of that in the pre-trial review?", "zh-HK": "官：點解預審唔講畀我聽？" } }, { "doc_id": 113, "seg_id": 48, "translation": { "en": "MR LEUNG:Indeed, sorry about that, because—understood.", "zh-HK": "MR LEUNG：係，唔好意思，因為--明白。" } }, { "doc_id": 113, "seg_id": 49, "translation": { "en": "Judge:Will there be further more (witness) required to be called during the trial?", "zh-HK": "官：仲會唔會審訊期間仲需要叫多幾個㗎？" } }, { "doc_id": 113, "seg_id": 50, "translation": { "en": "MR LEUNG:No, there won’t be. This…", "zh-HK": "MR LEUNG：唔會嘅，呢個..." } }, { "doc_id": 113, "seg_id": 51, "translation": { "en": "Judge:Otherwise, how am I supposed to tell the jury how many days we anticipate to spend in this trial? I cannot let it get out of hand; otherwise, our pre-trial review was held for nothing, right?", "zh-HK": "官：如果唔係，我一陣間點同陪審員講我哋預計審訊幾多天？我唔能夠let it get out of hand㗎嘛，如果唔係，我哋嘅預審咪形同虛設？" } }, { "doc_id": 113, "seg_id": 52, "translation": { "en": "MR LEUNG:Understood, your Ladyship.", "zh-HK": "MR LEUNG：明白，法官閣下。" } }, { "doc_id": 113, "seg_id": 53, "translation": { "en": "Judge:I also don’t understand why there is all of a sudden a change in counsel. That said, a change in counsel doesn’t mean that one has the right to increase the number of prosecution witness indefinitely.", "zh-HK": "官：我亦都唔明白點解突然之間會轉counsel，但係轉咗counsel唔代表有權利不停地要求增加控方證人。" } }, { "doc_id": 113, "seg_id": 54, "translation": { "en": "MR LEUNG:Understood.", "zh-HK": "MR LEUNG：明白。" } }, { "doc_id": 113, "seg_id": 55, "translation": { "en": "Judge:I hope that you will bear this in mind.", "zh-HK": "官：我希望你切記呢樣嘢。" } }, { "doc_id": 113, "seg_id": 56, "translation": { "en": "MR LEUNG:Understood.", "zh-HK": "MR LEUNG：清楚。" } }, { "doc_id": 113, "seg_id": 57, "translation": { "en": "…", "zh-HK": "…" } }, { "doc_id": 113, "seg_id": 58, "translation": { "en": "Judge:You are able to tell me for certain how many more prosecution witnesses you require to call, apart from PW1 and PW2.", "zh-HK": "官：你能夠確確實實講畀我聽，除咗第一、第二控方證人之外，仲需要叫多幾多個控方證人。" } }, { "doc_id": 113, "seg_id": 59, "translation": { "en": "MR LEUNG:Understood.", "zh-HK": "MR LEUNG：清楚。" } }, { "doc_id": 113, "seg_id": 60, "translation": { "en": "Judge:Because we now anticipate this trial to last 7 days. I am going to tell the jury that the trial will last for 7 days accordingly. I don’t want any delay.", "zh-HK": "官：因為而家我哋係預計七天審訊，我會照住呢個七天審訊講畀陪審員聽，我唔希望有任何嘅延誤。" } }, { "doc_id": 113, "seg_id": 61, "translation": { "en": "MR LEUNG:Understood.", "zh-HK": "MR LEUNG：明白。" } }, { "doc_id": 113, "seg_id": 62, "translation": { "en": "Judge:Case adjourned pending jury empanelment.", "zh-HK": "官：押後，等待輪選陪審員。" } }, { "doc_id": 113, "seg_id": 63, "translation": { "en": "(Transcription for court proceedings between 9:32am and 10:45am spared)", "zh-HK": "(上午9時32分至10時45分之聆訊毋須謄寫)" } }, { "doc_id": 113, "seg_id": 64, "translation": { "en": "Judge:Have we settled the identification issue yet, Mr Leung?", "zh-HK": "官：我哋解決咗認人嘅問題未呀，梁大律師？" } }, { "doc_id": 113, "seg_id": 65, "translation": { "en": "MR LEUNG:It’s been settled, already.", "zh-HK": "MR LEUNG：解決咗㗎喇，已經。" } }, { "doc_id": 113, "seg_id": 66, "translation": { "en": "Judge:How many witnesses are required now, in addition?", "zh-HK": "官：而家需要幾多個證人呀，額外？" } }, { "doc_id": 113, "seg_id": 67, "translation": { "en": "MR LEUNG:just two more.", "zh-HK": "MR LEUNG：多兩個嘅啫。" } }, { "doc_id": 113, "seg_id": 68, "translation": { "en": "Judge:You mean the sergeant…", "zh-HK": "官：即係個沙展..." } }, { "doc_id": 113, "seg_id": 69, "translation": { "en": "MR LEUNG:and another…", "zh-HK": "MR LEUNG：同埋另..." } }, { "doc_id": 113, "seg_id": 70, "translation": { "en": "Judge:...and the woman police officer?", "zh-HK": "官：...同埋個女警？" } }, { "doc_id": 113, "seg_id": 71, "translation": { "en": "MR LEUNG:That’s right.", "zh-HK": "MR LEUNG：冇錯。" } }, { "doc_id": 113, "seg_id": 72, "translation": { "en": "…", "zh-HK": "…」" } }, { "doc_id": 113, "seg_id": 73, "translation": { "en": "(Boldface has been added by this court)", "zh-HK": "(粗體是本庭加上的。)" } }, { "doc_id": 113, "seg_id": 74, "translation": { "en": "It can be clearly seen from the transcript that Mr Leung representing the applicant did not formally apply to call PC34970 at that time, nor did the judge ‘force’ the defence to forgo calling PC34970, as complained by Mr Wong. The fact that the judge requested Mr Leung to tell the court after the empanelment of jury how many witnesses had to be called can sufficiently prove that the judge by no means made the defence forgo calling PC34970.", "zh-HK": "從謄本記錄清楚地看得出，當時代表申請人的梁‍大律師並無正式申請要求傳召警員 34970；原審法官亦無如王‍大律師所投訴的，「迫使」辯方放棄傳召警員 34970。而原審法官要求梁‍大律師在輪選陪審員後，告訴法庭需要傳召多少證人，也足以證明原審法官並無任何意思要辯方放棄傳召警員 34970。" } }, { "doc_id": 113, "seg_id": 75, "translation": { "en": "In fact, the judge at that time only reminded Mr Leung that his predecessor did not request to call PC34970 in the pre-trial review and that if he was going to call PC34970, it would have an impact on the length of trial, which in turn would defeat the intended purpose of the pre-trial review and result in delay. The judge not only did nothing improper here but also appropriately fulfilled her case management duty: for relevant legal principles, see HKSAR v Hon Min Kong (re: case management) [2014] 2 HKLRD 710，paragraphs 6 - 7；and R v Jisl [2004] EWCA Crim 696，paragraphs 114 – 116.", "zh-HK": "其實，原審法官當時只是提醒梁‍大律師，在預審時他的前任大律師並無要求傳召警員 34970，若他現在才打算傳召警員 34970，這有可能會影響審訊所需要訊的時間，令預審失去原有的意義和引致延誤。原審法官此舉不單只沒有任何不當的地方，更是洽當地履行其管理案件的責任：有關法律原則見HKSAR v Hon Min Kong (re: case management) [2014] 2 HKLRD 710，6 - 7段；及R v Jisl [2004] EWCA Crim 696，第 114 – 116 段。" } }, { "doc_id": 113, "seg_id": 76, "translation": { "en": "We found no merit in the first ground of appeal.", "zh-HK": "本庭認為，第一個上訴理由不能成立。" } }, { "doc_id": 113, "seg_id": 77, "translation": { "en": "As to the second ground of appeal, the Court of Final Appeal and the Court of Appeal have all along been emphasizing that a tribunal shall not find a prosecution witness more credible because of him/her being a police officer. Likewise, in a jury trial, the trial judge shall not give such a direction or a direction to that effect to the jury. We are of the view that the wording in the judge’s direction to the jury, of which the applicant complained, is worthy of scrutiny. In directing the jury to consider whether the applicant’s ‘set-up’ allegation was credible or not, the judge added this question, ‘Do you consider it a fact, as alleged by the defendant, that this case concerned a bunch of lawless police officers blatantly setting him up by way of planting?’ Such wording in the question was not only out of line, but also tantamount to inviting the jury to reject the applicant’s suggestion when it was taken in context. As such, the judge’s direction might indeed have misled the jury into believing that the testimony of the prosecution witnesses, being police officers, was more credible than the applicant’s and that they would not lawlessly and blatantly accuse the applicant in a wrongful manner. That was an erroneous direction and as the issue in the trial involved the credibility of witnesses’ testimony, that was sufficient to render the conviction unsafe and unsatisfactory.", "zh-HK": "至於第二個上訴理由，終審法院和上訴法庭一直以來都強調，審裁機構不能因為控方證人是警員，就認定他們是較為可信的證人；在陪審團審訊中，主審的法官也不得對陪審團作出這樣或有類似效果的指引。本庭認為，申請人針對原審法官對陪審團的指引，用詞上有可相榷的地方。原審法官在引導陪審員考慮申請人「砌生豬肉」的說法是否可信時，加上「你哋認為被告所講，呢個本案嚟講係一班無法無天嘅警員明目張膽插贓嫁禍畀佢呢個講法係咪事實呢？」這問題，但這問題的用詞不僅過火，用在上下文的文意處境中，更有邀請陪審團否定申請人說法的意味。如此看來，原審法官的指引確有可能令陪審團誤會，因為控方證人是警員，他們的證供比申請人更可信，而他們是不會無法無天及明目張膽地誣陷申請人。這是一個錯誤的指引，而因為案件的爭議點是涉及證人證供的可信性，所以足以令定罪變得不安全及不穩妥。" } }, { "doc_id": 113, "seg_id": 78, "translation": { "en": "Therefore, we found that the second ground of appeal was made out.", "zh-HK": "因此，本庭裁定第二個上訴理由成立。" } }, { "doc_id": 113, "seg_id": 79, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 113, "seg_id": 80, "translation": { "en": "We granted leave to appeal, treated the hearing as the appeal proper, allowed the appeal, and set aside the conviction and sentence.", "zh-HK": "本庭批准上訴許可，視之為正式上訴，並判上訴得直，撤銷有關的定罪及刑期。" } }, { "doc_id": 113, "seg_id": 81, "translation": { "en": "Since the case was serious and the evidence was sufficient, we thus ordered a re-trial. The applicant was denied bail pending re-trial.", "zh-HK": "由於案情嚴重，證據亦是充分，故本庭下令重審。而在等候審訊期間，申請人不得保釋。" } }, { "doc_id": 113, "seg_id": 82, "translation": { "en": "Ms Winsome Chan, SPP of the Department of Justice, for the respondent", "zh-HK": "答辯人：由律政司高級檢控官陳淑慧代表" } }, { "doc_id": 113, "seg_id": 83, "translation": { "en": "Mr Wong Hay-yiu, instructed by Koo Christine M. & Ip, assigned by Legal Aid Department, for the applicant", "zh-HK": "申請人：由法律援助署委派顧張文菊、葉成慶律師事務所所轉聘王熙曜大律師代表" } }, { "doc_id": 114, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 114, "seg_id": 2, "translation": { "en": "The three charges", "zh-HK": "三項控罪" } }, { "doc_id": 114, "seg_id": 3, "translation": { "en": "On 19 August 2008, the two defendants pleaded guilty before District Judge Stanley Chan (hereinafter “Judge Chan”) to the following three charges:", "zh-HK": "兩名被告人於 2008 年 8 月 19 日在區域法院法官陳廣池席前承認以下三項控罪：" } }, { "doc_id": 114, "seg_id": 4, "translation": { "en": "Charge 1", "zh-HK": "第一項控罪" } }, { "doc_id": 114, "seg_id": 5, "translation": { "en": "Without the licence of the copyright owners of copyright works, possessing infringing copies of such works with a view to their being sold or let for hire by any person for the purpose of or in the course of any trade or business, contrary to sections 118(1)(f)(i) and 119(1) of the Copyright Ordinance (Cap. 528 of the Laws of Hong Kong).", "zh-HK": "未獲版權作品的版權擁有人的特許而管有版權作品的侵犯版權複製品，以期令某人可為任何貿易或業務的目的或在任何貿易或業務的過程中，出售或出租該等侵犯版權複製品，違反《版權條例》（香港法例第 528 章）第 118(1)(f)(i) 及 119(1) 條。" } }, { "doc_id": 114, "seg_id": 6, "translation": { "en": "Charge 2", "zh-HK": "第二項控罪" } }, { "doc_id": 114, "seg_id": 7, "translation": { "en": "Having in possession an article knowing that it was used to make infringing copies of copyright works for use for the purpose of or in the course of any trade or business, contrary to sections 118(8) and 119(2) of the Copyright Ordinance (Cap. 528 of the Laws of Hong Kong).", "zh-HK": "管有物品，並知道該等物品是用作製作版權作品的侵犯版權複製品以供為任何貿易或業務的目的或在任何貿易或業務的過程中使用，違反《版權條例》（香港法例第 528 章）第 118(8) 及 119(2) 條。" } }, { "doc_id": 114, "seg_id": 8, "translation": { "en": "Charge 3", "zh-HK": "第三項控罪" } }, { "doc_id": 114, "seg_id": 9, "translation": { "en": "Breaching a condition of stay, contrary to section 41 of the Immigration Ordinance (Cap. 115 of the Laws of Hong Kong) and regulation 2 of the Immigration Regulations (Cap. 115A of the Laws of Hong Kong).", "zh-HK": "違反逗留條件，違反《入境條例》（香港法例第 115 章）第 41 條及《入境規例》（香港法例第 115A 章）第 2 條。" } }, { "doc_id": 114, "seg_id": 10, "translation": { "en": "The sentences", "zh-HK": "刑期" } }, { "doc_id": 114, "seg_id": 11, "translation": { "en": "For Charge 1, Judge Chan adopted 27 months’ imprisonment as a starting point and, giving a one-third discount for the defendants’ guilty pleas, reduced the term to 18 months. For Charge 2, Judge Chan adopted a starting point of 30 months’ imprisonment and, giving a one-third discount for the defendants’ guilty pleas, reduced the term to 20 months. As regards the charge of breaching a condition of stay, Judge Chan adopted a starting point of 6 months’ imprisonment and, giving a one-third discount for the defendants’ guilty pleas, reduced the term to 4 months. Judge Chan ordered that the sentences for Charges 1 and 2 were to run concurrently, and the sentence for the charge of breaching a condition of stay was to run consecutively to the sentences on Charges 1 and 2, making a total sentence of 24 months’ imprisonment for each defendant.", "zh-HK": "陳法官就第一項控罪以 27 個月監禁為量刑基準，在減去被告人認罪給予的三分一刑期扣減後，判處她們 18 個月監禁。陳法官就第二項控罪以 30 個月監禁為量刑基準，減去被告人認罪給予的三分一刑期扣減後，判處她們 20 個月監禁。至於違反逗留條件的控罪，陳法官以 6 個月監禁為量刑基準，減去被告人認罪給予的三分之一刑期扣減後，判處她們 4 個月監禁。陳法官命令第一及第二項刑期同期執行，而違反逗留條件的刑期則與第一及第二項控罪的刑期分期執行，總刑期為 24 個月監禁。" } }, { "doc_id": 114, "seg_id": 12, "translation": { "en": "The facts", "zh-HK": "案情" } }, { "doc_id": 114, "seg_id": 13, "translation": { "en": "The two defendants are both Mainland residents. They entered Hong Kong as visitors on 7 April 2008. Their entry was subject to the condition that they were not allowed to work in Hong Kong.", "zh-HK": "兩名被告人是大陸居民，她們在 2008 年 4 月 7 日以遊客身分從內地進入香港。根據入境條件她們是不可在香港工作。" } }, { "doc_id": 114, "seg_id": 14, "translation": { "en": "On 8 April 2008, customs officers stopped and searched the two defendants as they emerged from the ground floor premises (“the premises”) of a building in Tai Po Tin Village, Ta Kwu Ling, carrying a carton. Customs officers found 777 pirated discs in the carton and later found from the premises 14,659 pirated discs, 22 sets of disc-replication machines, 12,010 blank digital discs and 4,940 blank discs.", "zh-HK": "香港海關人員於 2008 年 4 月 8 日在新界打鼓嶺大埔田村截查兩名被告人，當時她們手攜着一個紙箱從一幢位於該村的建築物地下的單位（‘該單位’）走出來。海關人員在該紙箱內發現 777 片翻版光碟及在該單位內搜出 14,659片翻版光碟、22台複製光碟的機器、12,010 片空白數碼光碟及 4,940 片空白光碟。" } }, { "doc_id": 114, "seg_id": 15, "translation": { "en": "At least 15 of the aforesaid 22 sets of disc-replication machines were in good working order. Most of the machines were equipped with 5 disc burners, and 2 of them were even equipped with 10 burners. The pirated discs comprised VCDs, TV game discs, DVDs, computer software and computer game discs.", "zh-HK": "被搜出的 22 台複製機中最少有15 台是功能正常的。大部分的複製機都裝有5 個光碟燒錄器，其中兩台更裝有 10 個燒錄器。這批翻版光碟的內容包括影像、電視遊戲、數碼影像、電腦輭件及電腦遊戲。" } }, { "doc_id": 114, "seg_id": 16, "translation": { "en": "The two defendants claimed that upon their arrival in Hong Kong, they were taken by a man, whose name was unknown, to the premises, where they burnt and packed pirated discs, earning a daily wage of HK$250. Upon receiving instructions over the phone, they would deliver the pirated discs to another person.", "zh-HK": "兩名被告人聲稱在抵達香港後被一名不知名的男子帶到該單位內從事燒錄翻版光碟及包裝光碟的工作，每日薪酬為 HK$250。她們在接到電話指示後就將翻版光碟交予另外一名人士。" } }, { "doc_id": 114, "seg_id": 17, "translation": { "en": "The 1st defendant", "zh-HK": "第一被告人" } }, { "doc_id": 114, "seg_id": 18, "translation": { "en": "The 1st defendant was granted leave by a single judge of the Court of Appeal to appeal against sentence. The two copyright offences that she has committed are “possessing infringing copies of copyright works for the purpose of trade or business” and “possessing an article for making infringing copies of copyright works for the purpose of trade or business”.", "zh-HK": "第一被告人獲上訴法庭單一法官給予許可就刑期提出上訴。第一被告人所犯的兩項版權條例的控罪分別是「管有侵犯版權複製品作為貿易或業務目的」及「管有物品用作製作侵犯版權複製品以供貿易及業務目的」。" } }, { "doc_id": 114, "seg_id": 19, "translation": { "en": "Sentencing principles", "zh-HK": "量刑原則" } }, { "doc_id": 114, "seg_id": 20, "translation": { "en": "In a number of decided cases (such as Secretary for Justice v. Choi Sai Lok & Anor [1994] 4 HKC 334, HKSAR v. Tsang Ho Kei & Tang Siu Kwong [CACC 227/2003], HKSAR v. Zhuang Xiao Luo [CACC 265/2004] and HKSAR v. Lee Yuk Chun [CACC 487/2004]), the Court of Appeal has clearly explained that offences contravening the Copyright Ordinance are serious in that they severely jeopardize Hong Kong’s status as a centre of fair trade. In order to eradicate those offences, the court must impose deterrent sentences on those who commit the offences. For the abovementioned cases, which involve the same offences as those in the present case, the Court of Appeal has taken the view that, save in exceptional circumstances, immediate custodial sentences have to be imposed. A sentencing factor is the role played by the defendant in the case. A distinction should be made, for example, between the mastermind of a pirated disc manufacturing operation and someone who is responsible for manufacturing, packing and delivering the discs. The former will receive a longer sentence; as for the latter, the sentence is to be determined in light of the quantity of the infringing articles, the length of time over which the piracy took place and also other factors such as whether the defendant has pleaded guilty to the charges.", "zh-HK": "上訴法庭在多宗判例（如：Secretary for Justice v. Choi Sai Lok & Anor [1994] 4 HKC 334、香港特別行政區訴曾浩基(Tsang Ho Kei) 及鄧兆光 (Tang Siu Kwong) [CACC 227/2003]、HKSAR v. Zhuang Xiao Luo 莊曉洛 [CACC 265/2004]及HKSAR v. Lee Yuk Chun (李玉珍) [CACC 487/2004]）中清楚說明違反《版權條例》罪行的嚴重性，他們嚴重影響香港作為公平貿易中心的地位，故此法庭必須判處干犯這些罪行的被告人一個具阻嚇性的刑期以杜絕這類案件。上述案例涉及與本案相同的控罪，上訴法庭認為除非案件存在特殊情況，否則法庭是需要判處被告人即時入獄。法庭在量刑時會考慮到被告人在案中所扮演的角色，如一名翻版工場的主腦與一名負責製造、包裝或運送的人士在刑期上是應該有分別的。法庭就前者會判予一個較長的刑期，而就後者就會考慮涉及翻版活動的物品的數量、他們從事該活動的時間及其他因素，包括他們有沒有承認控罪。" } }, { "doc_id": 114, "seg_id": 21, "translation": { "en": "In HKSAR v. Tsang Ho Kei & Tang Siu Kwong, the two defendants possessed more than 6,500 pirated discs as well as 5 computers for manufacturing the infringing copies. The Court of Appeal adopted a starting point of 24 months’ imprisonment in respect of the possession of pirated discs, and took the view that the starting point for the possession of disc-replication devices should be 36 months’ imprisonment.", "zh-HK": "在曾浩基及鄧兆光 一案，兩名被告人涉及管有逾 6,500 片翻版光碟，並管有用來製作侵犯版權複製品的五台電腦。上訴法庭採用 24 個月監禁為管有翻版光碟的量刑基準。上訴法庭認為管有複製儀器的量刑基準應為 36 個月監禁。" } }, { "doc_id": 114, "seg_id": 22, "translation": { "en": "In Lee Yuk Chun, the defendant possessed approximately 3,100 pirated discs and also 12 sets of disc-replication machines and 665 blank discs. The Court of Appeal held that a starting point of 15 months should be adopted in respect of the possession of pirated discs and that 30 months was an appropriate starting point in respect of the possession of disc-replication devices.", "zh-HK": "在李玉珍 一案被告人管有約 3,100 片翻版光碟及管有12 台複製儀器及 665 片空白光碟。上訴法庭認為管有翻版光碟的控罪應以 15 個月監禁為量刑基準，而30 個月監禁是管有複製儀器的控罪的適當量刑基準。" } }, { "doc_id": 114, "seg_id": 23, "translation": { "en": "None of the defendants in the two aforesaid cases was a mastermind of the piracy operation in question.", "zh-HK": "上述兩宗案件的被告人均不是翻版工場的主腦。" } }, { "doc_id": 114, "seg_id": 24, "translation": { "en": "Circumstances of the present case", "zh-HK": "本案的情況" } }, { "doc_id": 114, "seg_id": 25, "translation": { "en": "In the present case, Charge 1 involves more than 15,000 pirated discs, which far exceeds the quantities of pirated discs involved in Lee Yuk Chun and Tsang Ho Kei. In light of this, Judge Chan has, quite properly in our view, enhanced the starting point from 24 months as laid down in Tsang Ho Kei to 27 months.", "zh-HK": "本案的第一項控罪所涉及的翻版光碟數量逾 15,000 片，它遠遠超過李玉珍及曾浩基 案所涉及的翻版光碟數量。陳法官適當地將曾浩基一案的 24 個月監禁的量刑基準調高至27 個月來反映本案所涉及的翻版光碟數量。" } }, { "doc_id": 114, "seg_id": 26, "translation": { "en": "As regards Charge 2, the present case involves at least 15 sets of disc-replication machines and more than 16,000 blank discs which could be used for manufacturing pirated discs, which far exceed the number of disc-replication machines and blank discs involved in Lee Yuk Chun. This notwithstanding, Judge Chan did not depart from the starting point of 30 months. We see nothing improper with this decision.", "zh-HK": "至於第二項控罪，雖然本案所涉及的複製機最少有 15 台及可製作為翻版光碟的空白光碟逾 16,000 片是遠遠超過李玉珍 一案的複製機及空白光碟數目，但陳法官仍然以 30 個月監禁為量刑起點，本庭認為這是一項適當的裁決。" } }, { "doc_id": 114, "seg_id": 27, "translation": { "en": "The fact that the 1st defendant had worked at the premises for only one day prior to her arrest is, in our view, a mitigating factor. At the same time, however, it is obvious that the 1st defendant came to Hong Kong from the Mainland pursuant to an arrangement to take part in the piracy, and this, involving as it did cross-border criminal activities, is an aggravating factor. The aforesaid two factors offset each other for sentencing purposes.", "zh-HK": "第一被告人在被捕前只在該工場工作了一天，本庭認為這是一項減刑因素，但同時第一被告人明顯是有計劃地被安排從內地進入香港以從事翻版工作，這涉及跨境的犯罪行為是一項加刑的因素，故此在量刑時這兩項因素互相抵銷。" } }, { "doc_id": 114, "seg_id": 28, "translation": { "en": "The 1st defendant is a single parent. She said her 13-year-old son had been admitted to the Beijing Dance Academy as a student and she came to Hong Kong to commit the offences in order to raise money to pay for her son’s studies. She said at trial that her son had been unable to pursue his studies as a result of her incarceration, and that she had to take care of him and her mother who was aged 76 and seriously ill. She also said that the Mainland government intended to recover possession of her accommodation for redevelopment purposes and that she would lose her home if she was unable to return to her home village to complete the formalities. In our view, where, as in the present case, a deterrent sentence is called for, the defendant’s personal background cannot be regarded as a mitigating factor.", "zh-HK": "第一被告人是一名單親母親。她稱來港犯案的原因是她 13 歲兒子考進北京舞蹈學院，她需要籌錢繳交學費。她在本聆訊時表示由於她被囚禁致令她的兒子不能上學，她需要照顧他及她的 76 歲母親患了重病需要她的照顧。她亦說內地政府因進行重建工程而要收回她的住所，她需要回鄉辦理手續，否則會失去家園。本庭認為判決涉及一項具阻嚇性的刑期，因此個人背景不可被視作減刑的因素。" } }, { "doc_id": 114, "seg_id": 29, "translation": { "en": "In our judgment, whether viewed individually or as a whole, the sentences imposed on the 1st defendant in respect the charges are appropriate.", "zh-HK": "本庭認為不論是第一被告人就各項控罪所獲判的個別刑期或是整體刑期都是適當的。" } }, { "doc_id": 114, "seg_id": 30, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 114, "seg_id": 31, "translation": { "en": "We dismiss the 1st defendant’s appeal against her sentences, which are neither manifestly excessive nor wrong in principle.", "zh-HK": "刑期沒有明顯過高或者違反任何量刑原則。本庭駁回第一被告人的上訴。" } }, { "doc_id": 114, "seg_id": 32, "translation": { "en": "The 2nd defendant", "zh-HK": "第二被告人" } }, { "doc_id": 114, "seg_id": 33, "translation": { "en": "On 27 August 2008, the 2nd defendant applied for leave to appeal against sentence. On 8 December 2008, however, she filed a notice of abandonment of application for leave to appeal (hereinafter “notice of abandonment”). She also made the following statement in a standard form of statements of the Correctional Services Department:", "zh-HK": "第二被告人於 2008 年 8 月 27 日就刑期提出上訴許可申請，但於 2008 年 12 月 8 日提交放棄申請上訴許可通知書（‘「放棄通知書」’），她同時在一份懲教署的供詞表格內作出以下的書面陳述：" } }, { "doc_id": 114, "seg_id": 34, "translation": { "en": "I, Gan Ai Rong, have received a letter from my husband. He urges me not to go on with my appeal, the reasons being that I do not have legal aid and that I am ignorant of law and unable to defend myself. After careful consideration, I have decided to abandon my appeal against sentence and my application for legal aid. I hope this will be approved by the judge.", "zh-HK": "「本人甘愛榕，我已收到丈夫的來信，他叫我不要再上訴了，原因是我沒有法援，我自己又不懂法律知識不會自辯，於是我考慮清楚取消上訴減刑及法援，希望法官批准。」" } }, { "doc_id": 114, "seg_id": 35, "translation": { "en": "Upon receiving the “notice of abandonment”, the court dismissed the 2nd defendant’s application for leave to appeal against sentence.", "zh-HK": "法庭在接獲該「放棄通知書」後撤銷了第二被告人針對刑期的上訴許可申請。" } }, { "doc_id": 114, "seg_id": 36, "translation": { "en": "The 2nd defendant filed an affirmation on 31 December 2008, in the following terms:", "zh-HK": "第二被告人於 2008年 12 月 31 日再提交誓章，內容說：" } }, { "doc_id": 114, "seg_id": 37, "translation": { "en": "本人甘愛榕經多番考慮，決定將本案 2008 年 DCCC 617 號，所有有關文件已及案發經過交給在這裏認識的一位熱心人仕的私人律師以便尋求進一步的法律意見。\tAfter repeated consideration, I, Gan Ai Rong, have decided to give all the relevant documents of this case (DCCC 617/2008) and the course of events [sic] to the private lawyer of a warm-hearted person I got acquainted with here, in order to seek further legal advice.", "zh-HK": "「" } }, { "doc_id": 114, "seg_id": 38, "translation": { "en": "Hence, I would like to renew my application to appeal against sentence, and I respectfully seek approval thereof.", "zh-HK": "故此，本人欲申請將此案再次提出上訴刑期。敬希批准！」" } }, { "doc_id": 114, "seg_id": 39, "translation": { "en": "We will treat the 2nd defendant’s affirmation of 31 December 2008 as an application to “treat the notice of abandonment as a nullity”.", "zh-HK": "本庭視第二被告人 2008 年 12 月 31 日的誓章為一項「視放棄通知書為無效」的申請。" } }, { "doc_id": 114, "seg_id": 40, "translation": { "en": "Legal principles", "zh-HK": "法律原則" } }, { "doc_id": 114, "seg_id": 41, "translation": { "en": "In a number of decided cases, including HKSAR v. Lai Siu Cheung [2005] 1 HKLRD 1, HKSAR v. Lau Ka Keung [CACC 200/2005], HKSAR v. Law Shui Kei [2007] 3 HKLRD 114 and HKSAR v. Chan Leung Hang [CACC 16/2008], the Court of Appeal has made it clear that the abandonment of an application for leave to appeal is a serious legal action and that, in the absence of reasonable explanations, the court will not readily allow applications to “treat the notice of abandonment as a nullity” and reinstate the original application for leave to appeal.", "zh-HK": "上訴法庭在一系列的案例，如 HKSAR v. Lai Siu Cheung （黎兆詳 [譯音]）[2005] 1 HKLRD 1、香港特別行政區訴劉家強 (Lau Ka Keung) [CACC 200/2005]、香港特別行政區訴羅水基 [2007] 3 HKLRD 114 及香港特別行政區訴陳亮恆 [CACC 16/2008] 清楚說明放棄上訴許可申請是一項嚴肅的法律行動，除非有合理的解釋，否則法庭是不會輕易接納有關的「視放棄通知書為無效」申請及恢復原本的上訴許可申請。" } }, { "doc_id": 114, "seg_id": 42, "translation": { "en": "The most important factor which constitutes a reasonable explanation is that the defendant was unaware that the filing of the “notice of abandonment” would render him unable to proceed with his appeal. For example, when he signed the “notice of abandonment”, he mistakenly thought that he was signing a document of an entirely different nature.", "zh-HK": "甚麼是合理解釋的其中最重要的因素是當被告人提交「放棄通知書」時他根本不知道有關的行動會導致他不能再繼續上訴，例如當他簽署「放棄通知書」時，誤以為自己正在簽署另外一份性質完全不同的文件。" } }, { "doc_id": 114, "seg_id": 43, "translation": { "en": "Circumstances of the present case", "zh-HK": "本案的情況" } }, { "doc_id": 114, "seg_id": 44, "translation": { "en": "It is plain that when the 2nd defendant signed the “notice of abandonment”, she understood the nature of the document. She indicated that she abandoned the appeal because she did not have legal aid, was ignorant of law and was unable to defend herself. This shows that she did realize that she was withdrawing her application for leave to appeal, with the consequence that she could not lodge the application again.", "zh-HK": "明顯地，本案的第二被告人在簽署「放棄通知書」時是明白該份文件的性質，她表示放棄上訴的原因是由於她沒有法律援助、不懂法律知識及不會自辯，這顯示她是知道她所作出的行動是在撤銷她提出的上訴許可申請，而這個行動的後果是她不可以再提出申請。" } }, { "doc_id": 114, "seg_id": 45, "translation": { "en": "As the 2nd defendant was aware of the consequence of what she did, she has failed to fulfil the requisite legal requirements which would cause the court to treat the notice of abandonment as a nullity and allow the 2nd defendant to proceed with her appeal.", "zh-HK": "由於第二被告人是知道有關行動的後果，故此她的情況未能符合有關法律的要求，致令法庭須視她的「放棄通知書」為無效，讓她繼續上訴。" } }, { "doc_id": 114, "seg_id": 46, "translation": { "en": "The 2nd defendant produced at this hearing a document which describes the circumstances surrounding her arrest and subsequent making of the statements. However, as she pleaded guilty to the charges and was legally represented at that time, the aforesaid information is of no assistance to her present application.", "zh-HK": "第二被告人在本聆訊時提交了一份文件陳述有關她在被逮捕當日及之後被錄取口供時的情況。由於她承認控罪及當時有律師代表，因此這些資料對她的申請沒有幫助。" } }, { "doc_id": 114, "seg_id": 47, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 114, "seg_id": 48, "translation": { "en": "We dismiss the 2nd defendant’s application.", "zh-HK": "本庭駁回第二被告人的申請。" } }, { "doc_id": 114, "seg_id": 49, "translation": { "en": "Mr David Leung, Senior Public Prosecutor, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官梁卓然代表。" } }, { "doc_id": 114, "seg_id": 50, "translation": { "en": "The Appellant/1st defendant in person, present.", "zh-HK": "上訴人/第一被告人：無律師代表，親自出席。" } }, { "doc_id": 114, "seg_id": 51, "translation": { "en": "The Applicant/2nd defendant in person, present.", "zh-HK": "申請人/第二被告人：無律師代表，親自出席。" } }, { "doc_id": 115, "seg_id": 1, "translation": { "en": "Hon Barnes J (giving the judgment of the Court):", "zh-HK": "原訟法庭法官張慧玲頒發上訴法庭判案書：" } }, { "doc_id": 115, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 115, "seg_id": 3, "translation": { "en": "The applicant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong. She pleaded not guilty. After trial before Deputy High Court Judge Anthea Pang (as she then was) sitting with a jury, she was convicted on 12 July 2012 and was sentenced to 20 years’ imprisonment. She applies for leave to appeal the conviction.", "zh-HK": "申請人被控一項「販運危險藥物」罪，違反香港法例第134 章《危險藥物條例》第4(1)(a) 及 (3) 條。申請人否認控罪，由高等法院暫委法官彭‍寶‍琴 (當時官階) 連同陪審員審理。經審訊後，申請人在2012 年7 月12 日被裁定罪名成立，判監24 年。申請人不服定罪，提出上訴許可申請。" } }, { "doc_id": 115, "seg_id": 4, "translation": { "en": "Particulars of offence", "zh-HK": "罪行詳情" } }, { "doc_id": 115, "seg_id": 5, "translation": { "en": "The particulars of offence stated that on 6 September 2011 the applicant unlawfully trafficked in 2.29 kg of a solid containing 1.60 kg of cocaine at the Central Post Office, Nathan Road, Yau Ma Tei, Kowloon.", "zh-HK": "罪行詳情指申請人在2011 年9 月6 日，在位於九龍油麻地彌敦道的中央郵政局，非法販運內含1.60 公斤可卡因的2.29 公斤固體的危險藥物。" } }, { "doc_id": 115, "seg_id": 6, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 115, "seg_id": 7, "translation": { "en": "The prosecution case was by and large not in dispute.", "zh-HK": "控方大部分案情是不受爭議的。" } }, { "doc_id": 115, "seg_id": 8, "translation": { "en": "Two parcels declared to contain women’s shoes arrived in Hong Kong from Brazil by air on 2 September and 4 September 2011 respectively. However, the two parcels contained instead two glass bottles resembling wine bottles (“wine bottles”) which were subsequently confirmed to contain a mixture of solid and liquid cocaine.", "zh-HK": "在2011 年9 月2 日及4 日，分別有報稱內有女裝鞋的郵包從巴西空運到港，但兩個郵包內藏有的並非女裝鞋，而是兩個類似酒樽的玻璃瓶 (「酒樽」)，內有其後證實為可卡因的固體及液體混合劑。" } }, { "doc_id": 115, "seg_id": 9, "translation": { "en": "On 6 September 2011, the applicant went to the Kowloon Central Post Office in Nathan Road, Yau Ma Tei to collect the said two parcels. She showed a staff member of the post office the letters of authorization and copies of passports of the two recipients of the parcels (Singh and Prince). She opened the parcels and put the four wine bottles therein into a reusable bag she brought with her. Meanwhile, she more than once talked to others in English on her mobile phone.", "zh-HK": "申請人在2011 年9 月6 日前往油麻地彌敦道的中央郵政局領取該兩個郵包。申請人當時出示了兩名收件人 (Singh及Prince) 的授權書及護照副本給郵局職員。申請人打開郵包，將內裡的4 個酒樽放進她自攜的環保袋中，期間不止一次以手提電話用英語與人交談。" } }, { "doc_id": 115, "seg_id": 10, "translation": { "en": "The Customs & Excise Officers who kept the applicant under surveillance in the vicinity stopped and arrested her when she was leaving the post office with the four wine bottles. When she was cautioned, the applicant became emotional and started to cry. She told the Customs & Excise Officers that she was collecting the two parcels for someone else and that she did not know what they contained. She said she intended to take the two parcels to Mainland China where she would hand them to someone else.", "zh-HK": "當申請人攜帶該4 個酒樽離開郵局時，被在附近監視的海關人員截停拘捕。當海關人員警誡申請人時，申請人情緒開始激動及哭泣。申請人向海關人員指她是代他人提取該兩個郵包，她並不知悉郵包內藏有甚麼。她打算將兩個包裹帶到中國內地交給他人。" } }, { "doc_id": 115, "seg_id": 11, "translation": { "en": "Later, the applicant attended a video-recorded interview under caution. She said she “collected wine samples” for one Charles, a friend of hers whom she came to know on the internet. Charles used to be her boyfriend. Not being a Hongkonger, Charles could not come to Hong Kong. The recipients of the parcels were not in town either. As Charles was in urgent need of the wine samples to do business and was worried about other people taking out the wine samples, and so the applicant helped Charles collect the wine samples. The applicant did not know the recipients and did not receive any reward for collecting the wine samples for Charles.", "zh-HK": "申請人其後在警誡下接受錄影會面。申請人表示她是幫一名在網上認識的朋友Charles「攞酒辦」。Charles以前跟申請人是男女朋友關係。因Charles不是香港人，不能前來香港。收件人亦不在港。Charles急於要酒辦做生意，他怕他人取出酒辦，故申請人幫Charles前往提取酒辦。申請人並不認識收件人。她替Charles取酒辦並沒有報酬。" } }, { "doc_id": 115, "seg_id": 12, "translation": { "en": "The applicant said that the parcel boxes were too big and so, having obtained consent from Charles, she took out the four wine bottles and put them into a bag.", "zh-HK": "申請人指因郵包箱太大，故此在取得Charles同意後，便將4 個酒樽拿出來並放進袋內。" } }, { "doc_id": 115, "seg_id": 13, "translation": { "en": "The applicant stated that at that time she did not open the polyfoam bottle packaging to see what the bottles contained because she believed they contained wine.", "zh-HK": "申請人指她當時並無打開包裝樽身的發泡膠盒，看看樽內裝了些甚麼，因為她相信樽內的是酒。" } }, { "doc_id": 115, "seg_id": 14, "translation": { "en": "The applicant said that she did not know the wine bottles contained drug.", "zh-HK": "申請人指她不知悉酒樽內的是毒品。" } }, { "doc_id": 115, "seg_id": 15, "translation": { "en": "Later, the applicant’s family members passed on to Customs & Excise records of her chats with others in an internet chat room. Those records were also adduced as evidence.", "zh-HK": "其後，申請人的家人將申請人在電腦聊天室與他人的談話紀錄交了給海關。聊天室紀錄亦成為呈堂證物。" } }, { "doc_id": 115, "seg_id": 16, "translation": { "en": "Defence case", "zh-HK": "辯方案情" } }, { "doc_id": 115, "seg_id": 17, "translation": { "en": "The applicant elected to testify at trial. She basically adopted what she had said during the video-recorded interview and reiterated that she did not know the wine bottles contained a dangerous drug.", "zh-HK": "申請人選擇作證。她基本上採納她在錄影會面所言，並重申她並不知悉酒樽內的是危險藥物。" } }, { "doc_id": 115, "seg_id": 18, "translation": { "en": "The applicant explained that she came to know Charles in October 2009 on a social website called TAGGED. She met Charles, who claimed to run a red wine business, in Shenzhen and did not feel anything wrong about him. Later, they became lovers. In early October 2010, the applicant collected a wine sample from DHL and took it to the Mainland for Charles, and they even consumed that wine sample together. Around November 2010, the applicant met another male called Faith, following which her relationship with Charles “cooled off”.", "zh-HK": "申請人解釋她與Charles在2009 年10 月在TAGGED交友網站認識，並曾與Charles在深圳見面，覺得Charles自稱做紅酒生意無可疑，繼後雙方發展成為男、女朋友。申請人曾在2010 年10 月初替Charles從DHL提取並帶了一支酒辦往內地，她更與Charles飲用了該支酒辦。其後在2010 年11 月左右，申請人認識了另一名男子Faith，便跟Charles「淡咗」。" } }, { "doc_id": 115, "seg_id": 19, "translation": { "en": "The applicant said that in August 2011 she gave Faith “the silent treatment” in August 2011 and knew that she might break up with him. As she did not like being bored, she started seeing Charles again.", "zh-HK": "申請人指後來在2011 年8 月，她與Faith「冷戰」，期間她知她可能會與Faith分手，她又怕悶，便再次與Charles交往。" } }, { "doc_id": 115, "seg_id": 20, "translation": { "en": "The applicant said that she heard there were black people on the Mainland who engaged in drug business, and she wondered whether Charles was one of them. Therefore, she asked Charles in the chat room “looking for someone help you on your drug business[?]” in order to “bluff him”. At that time, Charles replied, “baby no”. Thereafter, the applicant put aside her suspicion as she felt she had no evidence to prove that Charles was engaged in drug business and there were more than 200,000 black people on the Mainland.", "zh-HK": "申請人指稱她聽人說及在內地有黑人做毒品生意，她不知Charles會不會是其中一個，故此在聊天室問Charles “looking for someone help you on your drug business” 去「大佢」。Charles當時回答她 “baby no” 。其後申請人覺得自己無證據指Charles是做毒品生意，而內地有20 多萬黑人，便不再存著懷疑。" } }, { "doc_id": 115, "seg_id": 21, "translation": { "en": "The applicant said to Charles in the chat room:", "zh-HK": "申請人在聊天室跟Charles說：" } }, { "doc_id": 115, "seg_id": 22, "translation": { "en": "“You know the time I be with you, I love you with my heart, but I find out you are using me to collect something for you, why you do this to me that time?”", "zh-HK": "“You know the time I be with you, I love you with my heart, but I find out you are using me to collect something for you, why you do this to me that time?”" } }, { "doc_id": 115, "seg_id": 23, "translation": { "en": "The applicant indicated that she said so because she thought Charles considered her a “gopher”.", "zh-HK": "申請人指她如此說是她覺得Charles當她是「阿四」。" } }, { "doc_id": 115, "seg_id": 24, "translation": { "en": "The applicant also said the following to Charles in the chat room:", "zh-HK": "至於為何申請人在聊天室向Charles說：" } }, { "doc_id": 115, "seg_id": 25, "translation": { "en": "“What I worried is the police come and catch me.”", "zh-HK": "“What I worried is the police come and catch me.”" } }, { "doc_id": 115, "seg_id": 26, "translation": { "en": "“If there have something bad, cause I don’t know.”", "zh-HK": "“If there have something bad, cause I don’t know.”" } }, { "doc_id": 115, "seg_id": 27, "translation": { "en": "“I protect myself.”", "zh-HK": "“I protect myself.”" } }, { "doc_id": 115, "seg_id": 28, "translation": { "en": "As to why she said these, the applicant pointed out that she considered there might be a problem about duty not having been paid on the wine samples, and “one might also be caught for not paying duty”.", "zh-HK": "申請人指她覺得酒辦可能含有未完稅的問題，「未交稅都有可能會畀人捉」。" } }, { "doc_id": 115, "seg_id": 29, "translation": { "en": "The applicant said she eventually agreed to collect the two parcels in question for Charles. She said she believed they contained wine samples and she knew nothing about the drug inside.", "zh-HK": "申請人指她最終答應了替Charles前往提取該兩個郵包。她相信內藏有酒辦，她對內藏的毒品全不知情。" } }, { "doc_id": 115, "seg_id": 30, "translation": { "en": "The defence also called as witnesses her former colleague(s), her superior at the real estate agency for which she worked at the material time, and her elder sister’s boyfriend. Their testimonies were essentially to the effect that the applicant was a simple-minded and trusting person but was able at work and not “brainless”. Her elder sister’s boyfriend also confirmed that she had been with Faith at one stage.", "zh-HK": "辯方亦傳召了申請人的舊同事、申請人在事發時工作的地產公司上司及她姊姊的男友作證。基本上各人的證言是顯示申請人思想單純，很容易相信他人，但有工作能力，並非「冇腦」之人。申請人曾與Faith交往一事亦獲其姊姊男友證實。" } }, { "doc_id": 115, "seg_id": 31, "translation": { "en": "Additional evidence", "zh-HK": "新增證據" } }, { "doc_id": 115, "seg_id": 32, "translation": { "en": "The applicant applied by motion on 20 June 2013 for production of additional evidence, which consisted of records of messages sent by someone called Charybrown2004 to the applicant in a chat room between 23 July 2012 and 23 September 2012 subsequent to the applicant being convicted of the offence. The contents include:", "zh-HK": "申請人在2013 年6 月20 日動議，申請將她在被判罪後一名叫Charybrown2004的人在聊天室向申請人發送訊息的紀錄作為新增證據。有關日期是2012 年7 月23 日至2012 年9 月23 日，內容包括：" } }, { "doc_id": 115, "seg_id": 33, "translation": { "en": "“I am so sorry for what happened to you last year”", "zh-HK": "“I am so sorry for what happened to you last year”" } }, { "doc_id": 115, "seg_id": 34, "translation": { "en": "“it is all my [fault]”", "zh-HK": "“it is all my [fault]”" } }, { "doc_id": 115, "seg_id": 35, "translation": { "en": "“my friend lied to me”", "zh-HK": "“my friend lied to me”" } }, { "doc_id": 115, "seg_id": 36, "translation": { "en": "“I want to pay you for the trouble my friend put you into”", "zh-HK": "“I want to pay you for the trouble my friend put you into”" } }, { "doc_id": 115, "seg_id": 37, "translation": { "en": "The applicant submitted that if the jury had had the opportunity to consider such evidence, they would very likely not have convicted her of the offence.", "zh-HK": "申請人指若陪審團有機會考慮有關證據，他們很有可能不會將她定罪。" } }, { "doc_id": 115, "seg_id": 38, "translation": { "en": "The respondent did not object to the production of additional evidence.", "zh-HK": "答辯一方不反對新增證據呈堂。" } }, { "doc_id": 115, "seg_id": 39, "translation": { "en": "Having considered the provisions on additional evidence under section 83V of the Criminal Procedure Ordinance, Cap. 221 of the Laws of Hong Kong, we allowed the application.", "zh-HK": "本庭考慮了香港法例第221 章《刑事訴訟程序條例》第83V 條就新增證據的條文後，批准申請。" } }, { "doc_id": 115, "seg_id": 40, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 115, "seg_id": 41, "translation": { "en": "Mr. Wong, Counsel for the applicant, has advanced three grounds of appeal in support of the contention that the conviction is unsafe and unsatisfactory. We find it necessary to deal only with the first ground of appeal.", "zh-HK": "雖然申請人代表黃‍志‍偉大律師提出3 項上訴理由指定罪不安全及不穩妥，本庭祇須處理上訴理由‍一。" } }, { "doc_id": 115, "seg_id": 42, "translation": { "en": "This ground of appeal is that the directions given by the trial judge to the jury were unbalanced and unfair, as a result of which the applicant did not receive a fair trial.", "zh-HK": "此上訴理由是指原審法官在引導陪審團時未能做到平衡公允，導致申請人的審訊不公。" } }, { "doc_id": 115, "seg_id": 43, "translation": { "en": "Mr. Wong submits that:", "zh-HK": "黃‍大律師陳詞指：" } }, { "doc_id": 115, "seg_id": 44, "translation": { "en": "主控在結案陳詞中強調申請人的心態是“被告人已經懷疑呢個所謂 [CHARLES] 嘅人可能是販運毒者”，“佢應該有戒心”，“佢自己都知道呢個CHARLES可能係販毒者嚟喎”，“如果被告人諗到，啲酒可能有問題，佢點解會諗唔到啲酒除咗未完稅之外，可能唔係酒嚟喎，可能係毒品嚟喎”，“佢冇CHECK，好明顯因為佢知道裡面不是紅酒”及“如果你有少少懷疑，或者你應該有合理懷疑，你都會打開去睇睇”都不是等同法律要求的“知情”。但原審暫委法官在引導陪審團時只要求及指出：—\t“(i)\t In his final submission, prosecuting counsel emphasized the applicant’s state of mind, ‘the defendant had already suspected that this so-called [CHARLES] might be a drug trafficker’, ‘she should have been wary’, ‘she herself knew that this CHARLES might be a drug trafficker’, ‘if the defendant thought that there might be something wrong with the wine, why wouldn’t she have thought that, apart from duty not having been paid, the wine might be a drug instead of wine’, ‘she did not check, obviously because she knew it was not red wine inside’ and ‘had you harboured slight suspicion, or if you should have had reasonable suspicion, you would have opened it to take a look’. None of these is equivalent to ‘knowledge’ as required by law. However, in directing the jury, the deputy judge merely pointed out that the following requirements: -", "zh-HK": "「(i)" } }, { "doc_id": 115, "seg_id": 45, "translation": { "en": "As to the law, you must follow the directions and explanations given to you. In other words, in case of differences between what counsel said and what I said, you must accept and follow the directions on the law that I give you.", "zh-HK": "喺法律方面，各位一定要以向大家所出嘅指引同理解為準，換言之，若果大律師所講嘅同我所講嘅有分別，你哋必須接納同埋依循我俾你哋就法律方面嘅指引。" } }, { "doc_id": 115, "seg_id": 46, "translation": { "en": "I shall not repeat the final submissions made respectively by prosecuting and defence counsel that you heard yesterday. If you agree with their views, you may of course take them into consideration; otherwise, you should ignore those views and apply your own inclinations and views when you consider the evidence adduced in the present case.", "zh-HK": "至於控辯雙方大律師嘅結案陳詞，你哋琴日已經聽咗，我唔會喺度重複，若然你哋同意佢哋所提觀點，你哋當然可以作出考慮；若然你哋唔同意佢哋嘅觀點，咁就唔好理會，依照你哋自己嘅心意，你哋自己嘅睇法去考慮本案嘅證據。" } }, { "doc_id": 115, "seg_id": 47, "translation": { "en": "There are three elements to possession: first, the defendant must have knowledge, which means she knew she was in possession of a dangerous drug or drug. I repeat, the defendant must have knowledge, which means she knew she was in possession of a dangerous drug or drug;", "zh-HK": "管有本身包括三個 [元] 素：第一，被告人必須係知情者，即係佢知道佢管有嘅係危險藥物或者毒品，我再重複，被告人必須係知情者，即係佢知道佢管有嘅係危險藥物或者毒品；" } }, { "doc_id": 115, "seg_id": 48, "translation": { "en": "In respect of the defendant’s chat room records, prosecuting counsel emphasized certain parts thereof in his final submission, including: -", "zh-HK": "被告人在聊天室紀錄這方面令到主控在結案陳詞中強調的說法包括：—" } }, { "doc_id": 115, "seg_id": 49, "translation": { "en": "“causes you are looking for someone help you and your drug business.”\t(da)\t‘causes you are looking for someone help you and your drug business.’", "zh-HK": "(da)" } }, { "doc_id": 115, "seg_id": 50, "translation": { "en": "“I am stupid, but I can see what is true.”\t(db)\t‘I am stupid, but I can see what is true.’", "zh-HK": "(db)" } }, { "doc_id": 115, "seg_id": 51, "translation": { "en": "“ask me to collect something for you, I think you are using me.”\t(dc)\t‘ask me to collect something for you, I think you are using me.’", "zh-HK": "(dc)" } }, { "doc_id": 115, "seg_id": 52, "translation": { "en": "“what I worried is the police come and catch me.”\t(dd)\t‘what I worried is the police come and catch me.’", "zh-HK": "(dd)" } }, { "doc_id": 115, "seg_id": 53, "translation": { "en": "However, the deputy judge never directed the jury as to whether what prosecuting counsel emphasized as the applicant’s state of mind was different from the ‘knowledge’ that she referred to, and whether what prosecuting counsel suggested was equivalent to ‘knowledge’. Coupled with the fact that the jury was asked to consider whether they agreed with prosecuting counsel or not, this might have caused them to mistakenly conclude that the applicant’s state of mind that [she] ‘should have known’, ‘should have understood’ or ‘should have checked’, which fell short of ‘knowledge’ in law, was also sufficient to support a conviction. The chat room records showed that the applicant raised doubts about CHARLES. The failure to mention all such things, coupled with the sheer reference to those recorded doubts which plainly showed that the applicant’s state of mind was one of suspicion not knowledge, might have caused the jury to think that what prosecuting counsel had emphasized and its possibly misleading [effect] were all the more powerful and compelling.”", "zh-HK": "但原審暫委法官從來都沒有引導陪審團主控以上強調申請人心態這個說法與她所說“知情”是否有分別，主控的說法是否等同“知情”，更加要求陪審團對於主控的說法作出同意或不同意的考慮是會令到陪審團有可能錯誤認定申請人心態低於法律上“知情”這個要求包括“應該知”“應該明”或“應該CHECK”都足以定罪。申請人在聊天室紀錄質疑CHARLES 的說法，沒有指出這種種加上只引述質疑正正顯示申請人心態是有疑問不是已經知情，令陪審團有可能覺得主控的強調及可能產生的誤導更加強而有力。」" } }, { "doc_id": 115, "seg_id": 54, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 115, "seg_id": 55, "translation": { "en": "In her chat room conversations with Charles, the applicant had said things which appeared to be unfavourable to herself, such as “looking for someone help you on your drug business”, “… asked me to collect something for you…”, and also “what I worried is the police come and catch me” etc. In all circumstances of this case, if the jury did not believe the explanation she gave in the court, the jury would very likely draw the only reasonable inference that the applicant knew that the bottles contained a dangerous drug.", "zh-HK": "申請人自己在聊天室跟Charles說“looking for someone help you on your drug business”，“…asked me to collect something for you…”, 又提及“what I worried is the police come and catch me”等等看來對她不利的說話，若陪審團不相信她在庭上所作的解釋，以本案的所有環境情況而言，陪審團大有可能作出唯一合理的推論，就是申請人知悉酒樽內藏的是危險藥物。" } }, { "doc_id": 115, "seg_id": 56, "translation": { "en": "There is no doubt that prosecuting counsel said in his final submission that “she did not check, obviously because she knew it was not red wine inside” and that “had you harboured slight suspicion, or if you should have had reasonable suspicion, you would have opened it to take a look”. Prosecuting counsel appeared to be pointing out to the jury that, from the applicant’s conduct of deliberately not opening the wine bottles to take a look, an inference could be drawn that the applicant knew what the bottles contained.", "zh-HK": "無可置疑，主控在結案陳詞時曾說「佢冇check，好明顯因為佢知道裡面不是紅酒」、「如果你有少少懷疑，或者你應該有合理嘅懷疑，你都會打開去睇睇」。主控看來是向陪審團指出申請人故意不打開看看此行徑，是可用作推斷申請人對酒樽內所藏為何物是知情的。" } }, { "doc_id": 115, "seg_id": 57, "translation": { "en": "The only issue in the present case was whether the applicant had “knowledge”. The judge must make it clear to the jury that mere suspicion was not enough and that the prosecution had to prove that the applicant knew the wine bottles contained a dangerous drug. In light of the above submission from prosecuting counsel, it was necessary for the judge to clearly point out to the jury that mere failure to examine the wine bottles or “to check” was not by itself equivalent to the applicant having knowledge of what the wine bottles contained.", "zh-HK": "在本案，唯一的爭議是申請人是否「知情」。法官須明確告知陪審團單單懷疑是不足夠的，控方必須證明申請人知悉酒樽內藏有危險藥物。在主控作出上述陳詞後，法官有必要明確向陪審團指出單單無檢視酒樽、「冇check」此等行為，本身不等同申請人知悉酒樽內所藏為何物。" } }, { "doc_id": 115, "seg_id": 58, "translation": { "en": "In the present case, the judge had more than once reminded the jury that the prosecution bore the burden of proof and had to prove that the applicant knew the bottles contained a dangerous drug. However, after prosecuting counsel made the above submission, the judge did not make it clear to the jury that mere suspicion was not enough, and this might have misled the jury into thinking that if the applicant had harboured slight suspicion but had not opened the polyfoam boxes to see what the wine bottles contained, this would be equivalent to her having knowledge.", "zh-HK": "在本案，法官雖不止一次提醒陪審團舉證責任在控方，控方必須證明申請人知悉酒樽內藏的是危險藥物，但在主控作出上述陳詞後，法官並無向陪審團明確指出單單懷疑是不足夠的，可能令陪審團誤以為申請人有少少懷疑而無拆開發泡膠盒看看酒樽內所藏為何物，便等同她是知情。" } }, { "doc_id": 115, "seg_id": 59, "translation": { "en": "For the above reasons, the conviction is in our view unsafe. We grant the applicant leave to appeal the conviction and, treating the hearing of the application as the appeal proper, we allow the appeal, quash the conviction and set aside the sentence.", "zh-HK": "基於上述理由，本庭認為定罪不安全。本庭批准申請人就定罪提出的上訴許可申請，並視之為正式上訴。本庭判令上訴得直，撤銷定罪及監禁刑期。" } }, { "doc_id": 115, "seg_id": 60, "translation": { "en": "We will hear submissions as to whether there should be a re-trial.", "zh-HK": "本庭會就案件應否重審聽取陳詞。" } }, { "doc_id": 115, "seg_id": 61, "translation": { "en": "Mr. Eddie Sean, Senior Assistant Director of Public Prosecution, for the Respondent/HKSAR", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員單偉琛代表香港特別行政區" } }, { "doc_id": 115, "seg_id": 62, "translation": { "en": "Mr. Philip Wong, instructed by Messrs. May Cheng & Co., for the Applicant", "zh-HK": "申請人：由鄭氏律師行轉聘黃志偉大律師代表" } }, { "doc_id": 116, "seg_id": 1, "translation": { "en": "Hon. Tang V-P (giving the judgment of the Court):", "zh-HK": "上訴法庭副庭長鄧國楨頒發上訴法庭判案書：" } }, { "doc_id": 116, "seg_id": 2, "translation": { "en": "The Applicant was charged with one count of trafficking in a dangerous drug, contrary to s.4(1)(a) and (3), Dangerous Drug Ordinance, Cap. 134, Laws of Hong Kong. The particulars of offence allege that the Applicant, on 2 February, 2009, at the male public toilet in Luen Wan Street, Mong Kok, Kowloon, Hong Kong, unlawfully trafficked in a dangerous drug, namely, 17.51 grammes of a mixture containing 15.77 grammes of heroin hydrochloride.", "zh-HK": "申請人被控一項販運危險藥物罪，違反香港法例第134章《危險藥物條例》第4(1)(a)及(3)條。罪行詳情指申請人於2009年2月2日，在香港九龍旺角聯運街男公廁，非法販運危險藥物，即內含15.77克海洛英鹽酸鹽的17.51克混合劑。" } }, { "doc_id": 116, "seg_id": 3, "translation": { "en": "Prosecution’s Case", "zh-HK": "控方案情" } }, { "doc_id": 116, "seg_id": 4, "translation": { "en": "At around 9:50 p.m. on Monday, 2 February 2009, the Applicant entered the male public toilet in Luen Wan Street, Mong Kok, with a male [later known to be male Chan Wai-keung]. A police officer found the two of them suspicious and thus followed them into the public toilet. The Applicant and Chan Wai-keung entered a toilet cubicle and closed its door. The police officer then went into an adjacent cubicle and climbed up the dividing wall to check out what they were doing inside the cubicle.", "zh-HK": "2009年2月2日，星期一，晚上約9時50分，申請人與一名男子（後獲知是男子陳惠強）一同走進旺角聯運街的公眾男廁。警員感到他們二人形跡可疑，因而尾隨他們進入該公廁。申請人與陳惠強走進同一廁格內並關上廁格門。警員走進隔壁廁格，攀上分隔牆壁查看他們在廁格內的舉動。" } }, { "doc_id": 116, "seg_id": 5, "translation": { "en": "Upon seeing the Applicant putting his left hand into his left trousers pocket nervously, the police officer ordered him and Chan Wai-keung to open the cubicle door. After that the police officer conducted a body search on them and found from the Applicant’s left trousers pocket a resealable transparent plastic bag containing 60 small plastic packets of white powder. Under caution, the Applicant, while pointing at Chan Wai-keung, said, “The Sai Chai has just been bought by me from Ah Pai Gwut! I also gave him 13,200 bucks. I bought the Sai Chai just for myself to take my time to consume it. It’s the first time I have bought from him, I really just bought it for myself to take my time to consume it.” The Applicant had cash of $2,893 on him whilst Chan Wai-keung had cash of $15,688 on him.", "zh-HK": "警員看見申請人緊張地把左手放進左褲袋，於是著令他與陳惠強打開廁格門。其後，警員向他們進行搜查，並在申請人左褲袋內搜出一個可再封口的透明膠袋，內有60小膠包的白色粉末。在警誡下，申請人指著陳惠強說：「啲四仔我啱啱同阿排骨買！我仲俾咗13,200蚊佢。啲四仔我都係買嚟自己慢慢食咋，我第一次同佢買咋，我真係買嚟自己慢慢食咋」。申請人身上有現金2,893元，而陳惠強身上有現金15,688元。" } }, { "doc_id": 116, "seg_id": 6, "translation": { "en": "The 60 small plastic packets of powder were subsequently certified by Government Chemist to be a total of 17.51 grammes of a mixture containing 15.77 grammes of heroin hydrochloride [a salt of heroin].", "zh-HK": "政府化驗師後來驗證該60小膠包內的粉末，內含15.77克海洛英鹽酸鹽（海洛英鹽）的共17.51克混合劑。" } }, { "doc_id": 116, "seg_id": 7, "translation": { "en": "No fingerprints of the Applicant or Chan Wai-keung were found by the Government Chemist on the cash of $15,688 seized from Chan Wai-keung. Nor was Chan Wai-keung’s DNA found by Government Chemist on the surface of the plastic bag used for containing the 60 small plastic packets of dangerous drug, found upon search from the Applicant’s pocket.", "zh-HK": "化驗師在陳惠強身上檢獲的15,688元現金中，找不到申請人或陳惠強的指紋。化驗師在申請人褲袋內搜出用以裝載60小膠包毒品的膠袋上也找不到陳惠強的DNA。" } }, { "doc_id": 116, "seg_id": 8, "translation": { "en": "The Applicant pleaded guilty but claimed that part of the dangerous drugs were for his own consumption; he admitted that the remainder of the dangerous drugs were for the purpose of trafficking.", "zh-HK": "申請人認罪，但他提出該些危險藥物，部分是用於自己吸食；其餘部分，他則承認是作販賣用途。" } }, { "doc_id": 116, "seg_id": 9, "translation": { "en": "A Newton Hearing was then conducted by District Judge Yuen to determine whether the Applicant’s version should be accepted.", "zh-HK": "區域法院法官源麗華隨即以紐頓聆訊（Newton Hearing）的方式來確定申請人的說法應否被接納。" } }, { "doc_id": 116, "seg_id": 10, "translation": { "en": "There was no dispute between the prosecution and the defence as to whether the Applicant was a buyer. The issue between the parties was whether the Applicant, after having bought the dangerous drugs, had them wholly for re-sale, or partly for self-consumption and partly for re-sale, and if it is the latter case, what is the ratio of the amount for self-consumption to that for re-sale.", "zh-HK": "當時控辯雙方沒有爭論申請人是否買家，他們爭論的是申請人購入毒品後是否全部轉賣，或部分自用、部分轉賣，如後者則自用和轉賣分量的比例。" } }, { "doc_id": 116, "seg_id": 11, "translation": { "en": "After the Newton hearing, the trial judge found that the Applicant was a seller, not a buyer. However, at the hearing the trial judge did not categorically indicate to the parties that she had rejected their stance towards the Applicant’s status [i.e. a buyer]. Further, the reason why the trial judge rejected the Applicant’s claim to be a buyer was that she did not believe the Applicant’s evidence that he bought the dangerous drugs in question with the “lai see money” of his children. Nonetheless, even if the Applicant lied in this regard, it did not mean that he definitely was not a buyer but a seller.", "zh-HK": "原審法官經紐頓聆訊後，裁定申請人是賣家，而非買家，可是原審法官在聆訊時沒有向控辯雙方清楚表明她是不接納控辯雙方對申請人身份（即買家）的立場；況且原審法官拒納申請人聲稱自己為買家，是因為她不相信申請人作供時指自己是用兒女的「利是錢」去購買該些毒品。但是，即使申請人就這點是說謊，這不表示他一定不是買家而是賣家。" } }, { "doc_id": 116, "seg_id": 12, "translation": { "en": "Given the fact that the prosecution had accepted the status of the Applicant as a buyer at the trial, we should, in our view, deal with this question on the basis that he was a buyer.", "zh-HK": "由於控方在原審時接納申請人是買家的身份，所以本庭認為應以申請人為買家作基礎來處理這個問題。" } }, { "doc_id": 116, "seg_id": 13, "translation": { "en": "It was submitted by the Applicant that two-thirds of the dangerous drug bought by him were for his own consumption. But this is only his one-sided story, which is not substantiated by any other concrete evidence. The background of the Applicant, as summarized by the trial judge, is that he is a person living on public assistance. His family members include his wife who has mental problem and his children who are aged 18, 22 and 23 respectively. The eldest daughter is in employment while the two sons are still pursuing their studies. The Applicant receives a monthly sum of about $12,000 in public assistance and is required to spend the whole sum on maintaining the family, and hence the family has no savings. In view of the Applicant’s financial insufficiency, it is believed that he could not afford to buy such a large quantity of dangerous drugs for his own consumption. Furthermore, the Applicant’s explanation that the money came from his children’s “lai see money” was rightly rejected by the trial judge.", "zh-HK": "申請人陳詞指買入的毒品中，三分之二是自用。但這只是他的一面之詞，並無其他實質證據證明。正如原審法官簡述申請人的背景，申請人是一名依賴綜援過活的人士，家中有一名患有精神病的妻子，以及年齡分別為18、22及23歲的子女。長女在職，兩名兒子則仍在求學階段。申請人每月收取約12,000元的綜援金，他須把全數的綜援金額用以維持家計，因此家中並無積蓄。申請人經濟緊絀，相信沒有能力購買如此多毒品作自用。況且申請人解釋這些金錢的來源是他兒女的利是錢，這也已被原審法官正確地拒納。" } }, { "doc_id": 116, "seg_id": 14, "translation": { "en": "In HKSAR v Wong Suet Hau and Anor [2002] 1 HKLRD 69 (Stuart-Moore V-P, Mayo V-P, and Stock JA in Court) and HKSAR v Cheng Man Bor [2008] 4 HKLRD 841 (Cheung JA, Yeung JA and Chu J in Court), this Court has already dealt with the issue which concerns with a defendant who pleads guilty to trafficking in a dangerous drug but claims, as a ground of mitigation, that part of the dangerous drugs are for self-consumption. It is the understanding of this Court that, in general circumstances, even if part of the dangerous drugs are for self-consumption, an appropriate discount should be given when passing sentence, but this would not be substantial, because there is also the latent risk that these dangerous drugs intended for self-consumption may be trafficked. Usually, it is unnecessary for a court to conduct a Newton hearing to determine whether part of the dangerous drugs are for self-consumption.", "zh-HK": "就被告人承認販運危險藥物罪，但以部份毒品是自用為求情理由的問題，本庭在HKSAR v Wong Suet Hau and Anor [2002] 1 HKLRD 69一案（上訴法庭副庭長司徒冕及梅賢玉和司徒敬法官）和 香港特別行政區 訴 鄭文波 [2008] 4 HKLRD 841一案（上訴法庭法官張澤祐、楊振權及原訟法庭法官朱芬齡）已處理過。以本庭的理解，一般情況來說，就算部份毒品是自用，量刑時應給予恰當扣減，但幅度不會很大，因為這些自用的毒品亦有被販運的潛在風險。一般來說，法庭不需舉行紐頓聆訊，藉以裁定是否部份毒品是供自用。" } }, { "doc_id": 116, "seg_id": 15, "translation": { "en": "On the facts of the present case, a starting point of 5 years and 5 months is appropriate if there is no self-consumption factor in relation to part of the dangerous drugs. As the Applicant is a drug addict, who has previous convictions relating to possession of dangerous drugs, it is possible that part of the dangerous drugs were for his own consumption. In view of the fact that there is the self-consumption factor, in our judgment, a term of imprisonment for 4 years and 6 months is sufficient to reflect the gravity of the offence. After a one-third discount for the Applicant’s plea of guilty, the sentence should therefore be 3 years.", "zh-HK": "以本案的案情而言，假如沒有部份毒品自用此因素，5年5個月的量刑起點是恰當的。申請人是一名癮君子，他有管有危險藥物前科，部分毒品會是自用的。由於有自用的因素，本庭認為4年6個月的刑期已經足夠反映罪行的嚴重性，加上申請人認罪而獲扣減三分一刑期，故刑期應為3年。" } }, { "doc_id": 116, "seg_id": 16, "translation": { "en": "Leave to appeal is granted to the Applicant. Treating the hearing of this application as the hearing of the appeal, we allow the appeal and reduce the sentence from 3 years and 7 months to 3 years.", "zh-HK": "本庭批准申請人上訴許可申請，並把他的申請視為正式上訴，判上訴得直，本庭把申請人的刑期由3年7個月減至3年。" } }, { "doc_id": 116, "seg_id": 17, "translation": { "en": "Wong Po-wing, instructed by Haldanes assigned by the Director of Legal Aid, for the Applicant", "zh-HK": "答辯人：由律政司高級檢控官王詩麗代表。" } }, { "doc_id": 116, "seg_id": 18, "translation": { "en": "Wong Sze-lai, Lily, Senior Public Prosecutor of the Department of Justice, for the Respondent", "zh-HK": "申請人：由法律援助署委派何敦、麥至理、鮑富律師行轉聘王寶榮大律師代表。" } }, { "doc_id": 117, "seg_id": 1, "translation": { "en": "Hon Chu JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官朱芬齡頒發上訴法庭判案理由書：" } }, { "doc_id": 117, "seg_id": 2, "translation": { "en": "The applicant was charged with one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 of the Laws of Hong Kong. The drugs involved were 899.16 grammes of a mixture containing 495.68 grammes of heroin hydrochloride and 119.70 grammes of monoacetylmorphine hydrochloride.", "zh-HK": "申請人被控一項販運危險藥物罪，違反《危險藥物條例》（香港法例第134章）第4(1)(a)及(3)條。涉案藥物為內含495.68克海洛英鹽酸鹽及119.70克乙酰嗎啡鹽酸鹽的899.16克混合劑。" } }, { "doc_id": 117, "seg_id": 3, "translation": { "en": "The applicant pleaded not guilty and was tried before Tong J sitting with a jury. On 11 July 2011, the jury found her guilty by a majority of 5:2. On 19 July 2011, she was sentenced to 18 years’ imprisonment.", "zh-HK": "申請人否認控罪。案件在高等法院原訟法庭法官湯寶臣席前連同陪審團進行審訊。2011年7月11日，陪審團以5:2比數裁定申請人罪名成立。2011年7月19日，申請人被判處監禁18年。" } }, { "doc_id": 117, "seg_id": 4, "translation": { "en": "The applicant applied to this Court for leave to appeal against both conviction and sentence. Subsequently, on 14 February 2012 she abandoned her application for leave to appeal against sentence. As to her application for leave to appeal against conviction, it was dismissed by this Court after hearing. We now give the reasons for our judgment.", "zh-HK": "申請人不服定罪及判刑，向本庭提出上訴許可申請。她其後在2012年2月14日放棄上訴判刑的許可申請。有關上訴定罪的許可申請，本庭經聆訊後，拒絕申請。本庭現就判決理由給予說明。" } }, { "doc_id": 117, "seg_id": 5, "translation": { "en": "Facts of the case", "zh-HK": "案情" } }, { "doc_id": 117, "seg_id": 6, "translation": { "en": "At 5.59 pm on 10 May 2010, the applicant arrived at the Hong Kong International Airport on board an airliner coming from Kuala Lumpur. She was stopped and searched by customs officers. In the backpack which she was carrying the officers found a notebook computer, some items of clothing and some shoes. In the course of the search, the officers sensed a sour smell, so they searched the backpack more thoroughly. Finally, they cut open the back of the backpack and found the dangerous drugs, the subject-matter of this case. The purity of the heroin was within the range of 30% and 70%, and its retail price at the time of the offence was HK$825,428.88.", "zh-HK": "2010年5月10日下午5時59分，申請人乘搭飛機從吉隆坡抵達香港國際機場。海關人員截停申請人進行檢查。海關人員在申請人攜帶的背囊中發現一部手提電腦、一些衣物和鞋。由於在檢查期間嗅到酸味，海關人員對背囊進行進一步檢查，其後在割開背囊的背部位置時，發現收藏了涉案的毒品。涉案毒品的海洛英純度介乎30%至70%之間，案發時的零售價值是825,428.88港元。" } }, { "doc_id": 117, "seg_id": 7, "translation": { "en": "The applicant elected to give evidence. She had no previous criminal convictions. Her evidence was that she was a manager of an office furniture company in Foshan in Mainland China, earning a monthly income of over RMB10,000 yuan. In her spare time she studied for a master’s degree course in business administration. She said that through the introduction of her friend Xiao Jin [transliteration of 小靳] she had come to know a woman called Lily, who was engaged in foreign trade. In mid April 2012 she and Xiao Jin went to Malaysia together and brought some goods samples back to the Mainland for Lily. The present occasion was the second one on which she went to Malaysia and brought goods samples back to the Mainland for Lily. The applicant said that Lily had arranged for her the purchase of air tickets and the booking of hotel accommodation, and had paid her US$300 and RMB 200 yuan.", "zh-HK": "申請人選擇作供自辯。她之前沒有干犯刑事罪行的記錄。她的證供顯示她在佛山一間辦公室傢具公司任職經理，每月入息超過人民幣10,000元，工餘並修讀工商管理碩士課程。申請人稱透過朋友小靳認識一位從事外貿工作，名叫Lily的女士，並在2012年4月中曾與小靳一起前往馬來西亞替Lily把一些貨物的樣辦帶回國內。而這一次是第二次替Lily到馬來西亞取貨物樣辦回國內。申請人說Lily為她安排機票和酒店，及支付了300元美元和200元人民幣給她。" } }, { "doc_id": 117, "seg_id": 8, "translation": { "en": "When the applicant arrived there, she followed Lily’s instruction and came into contact with a person called Army, and received the backpack involved in this case. She said that she did not know there was a secret compartment in the backpack, nor did she know it contained dangerous drugs. She said she had never touched any dangerous drugs before. She believed what Xiao Jin said, i.e. it would not involve the commission of anything illegal, and on that basis she agreed to fetch the samples for Lily. The applicant went on and said that upon receiving the backpack she had taken the items of clothing out and checked them. She had also felt the inside of the backpack but did not discover anything. She did not sense any sour smell either. What she could smell was only the body odour of the person who contacted her.", "zh-HK": "她到達後，按Lily的指示，聯絡了一位名叫Army的人，接收了涉案的背囊。申請人稱她不知道背囊有暗格，亦不知道它藏有毒品。她本人更從未接觸過毒品，她是相信小靳的說話，即不會幹犯法的事，才同意為Lily帶樣辦。申請人並指出在收到背囊時，曾取出衣物查看，及用手觸摸背囊內部，但沒有發現。她亦沒有嗅到酸味，只是嗅到與她接洽的人的體味。" } }, { "doc_id": 117, "seg_id": 9, "translation": { "en": "The applicant called three character witnesses and produced the written statement of another character witness.", "zh-HK": "申請人傳召了三位品格證人，及呈交了另一位品格證人的書面證詞。" } }, { "doc_id": 117, "seg_id": 10, "translation": { "en": "Jury’s verdict", "zh-HK": "陪審團的裁決" } }, { "doc_id": 117, "seg_id": 11, "translation": { "en": "When the trial judge finished his summing up in directing the jury to reach a verdict, the jury retired to consider what verdict they should return. After some time, the jury asked the trial judge the following question:", "zh-HK": "在原審法官完成引導陪審團裁決的總結辭後，陪審團退席商議裁決。之後，陪審團向原審法官提出問題如下：" } }, { "doc_id": 117, "seg_id": 12, "translation": { "en": "“We unanimously agree that the defendant knowingly brought contraband into Hong Kong, but some of us think that knowingly carrying contraband is not the same as knowingly carrying dangerous drugs. For this reason we cannot reach a majority verdict, and we therefore hope that Your Lordship could give us some legal advice.”", "zh-HK": "「陪審團現一致認同被告在知情下攜帶違禁品入境，但部分陪審員認為知情帶違禁品並不代表知情帶毒品，故此，我們不能達成大比數裁決，故希望法官給予法律意見。」" } }, { "doc_id": 117, "seg_id": 13, "translation": { "en": "Having discussed with the prosecuting counsel and the defence counsel, the trial judge gave further direction to the jury. The following was what he said:", "zh-HK": "原審法官經過與控辯雙方的大律師商討後，向陪審團作出進一步的指引，其內容如下：" } }, { "doc_id": 117, "seg_id": 14, "translation": { "en": "“In this regard I have two things to say in response: The first one is that before you can convict the defendant you have to conclude that she knew that the content of the packet was some kind of dangerous drug; and the second thing, with regard to the deliberation among you, members of the jury, I shall give you some time to give your answer to the following question from the court, that is, if the court gives more time for you to continue your deliberation, is it possible for you to reach a verdict or is it already impossible to do that? May I ask you to discuss this and give me your answer to this question first? After that, I shall decide what should be the next step to take.”", "zh-HK": "「咁喺呢方面我有兩點嘅回應，第一點，就係要將被告定罪，各位要裁定佢知道嗰包係某種類嘅毒品；第二，就各位陪審員討論嘅情況呢，咁我先係畀大家少少時間去回答法庭呢一個問題。如果法庭再畀多啲時間讓大家繼續去商討是否有可能達成裁決，或者已經係冇可能嘅事，或者我請大家去商討一下，回應咗呢個答案先，然後我再決定下一步。」" } }, { "doc_id": 117, "seg_id": 15, "translation": { "en": "After discussion, the jury informed the learned judge in writing that “We think that if more time is given we should be able to reach a majority verdict.” Then the learned judge said the following to the jury when they came back into the courtroom:", "zh-HK": "陪審團經商討後，以書面通知原審法官，表示：「陪審團認為多些時間應該可以達到大多數裁決。」原審法官於是在陪審團出席的情況下，向他們作出下列講話：" } }, { "doc_id": 117, "seg_id": 16, "translation": { "en": "“Members of the jury, thank you very much. I shall now read your written answer into record. You wrote down ‘My Lord, we think that if more time is given we should be able to reach a majority verdict.’ In that case, I shall ask you to continue your deliberation until you arrive at a conclusion. In any event, let me remind you. You have been provided with a sheet of … a sheet of paper about your verdict which contains several questions. I ask you to bring it along with you. If you have reached a verdict, you can inform the court of that by following the steps set out on it.”", "zh-HK": "「各位陪審員，唔該晒大家，咁你哋所寫嘅回應呢，咁我讀一讀落嗰個紀錄度喇，就係你哋寫咗「法官大人，陪審團認為多些時間應該可以達到大多數裁決。」喺咁嘅情況之下，我會邀請大家係繼續進行商討直到有一個結果為止。無論如何，我提番，大家會已經有嗰張嘅--有幾個問題嗰張裁決紙，咁我請你帶番返去，如果有裁決，可以跟番呢一個步驟嚟通知法庭。」" } }, { "doc_id": 117, "seg_id": 17, "translation": { "en": "Then the jury resumed their deliberation. Finally, they found the applicant guilty by the ratio of 5:2.", "zh-HK": "陪審團之後再進行商議，最終他們以5:2的比數裁決申請人罪名成立。" } }, { "doc_id": 117, "seg_id": 18, "translation": { "en": "Applicant’s grounds of appeal", "zh-HK": "申請人的上訴理由" } }, { "doc_id": 117, "seg_id": 19, "translation": { "en": "The applicant’s Perfected Grounds of Appeal pointed out that for the following three reasons the conviction was unsafe or unsatisfactory:", "zh-HK": "申請人的「完備上訴定罪理由書」指基於下列3項理由，定罪裁決是不安全或不穩妥：" } }, { "doc_id": 117, "seg_id": 20, "translation": { "en": "(1)The trial judge did not give the jury any explanation as to the legal definition of dangerous drug stipulated in the Dangerous Drugs Ordinance.", "zh-HK": "原審法官沒有就危險藥物在《危險藥物條例》下的法律定義向陪審團作出任何解釋。" } }, { "doc_id": 117, "seg_id": 21, "translation": { "en": "(2)The directions given by the trial judge as to whether the applicant was made use of and whether she carried the dangerous drugs without her knowing what she was actually doing constituted conjectures prejudicial to the applicant, which also undermined the applicant’s defence in an unbalanced and unfair way.", "zh-HK": "原審法官有關申請人是否被利用，及在不知情下販運毒品這方面的引導，構成對申請人不利的推論，及不平衡地和不公平地削弱了申請人的辯解。" } }, { "doc_id": 117, "seg_id": 22, "translation": { "en": "(3)The further direction given by the trial judge in response to the question raised by the jury was not balanced, and he erred in failing to give any explanation as to the legal definition of dangerous drug in the Dangerous Drugs Ordinance, and in failing to remind the jury that ultimately it was open to them not to reach a valid verdict.", "zh-HK": "原審法官因應陪審團的問題要求所作出的進一步引導有欠持平，並錯誤地沒有就危險藥物在《危險藥物條例》下的法律定義作出解釋，以及錯誤地沒有提醒陪審團他們最終可以不達成一個有效的裁決。" } }, { "doc_id": 117, "seg_id": 23, "translation": { "en": "Grounds of appeal (1) and (3)", "zh-HK": "第（1）項和第（3）項上訴理由" } }, { "doc_id": 117, "seg_id": 24, "translation": { "en": "Grounds of appeal (1) and (3) are closely related to each other, so they shall be dealt with at the same time.", "zh-HK": "第（1）項和第（3）項上訴理由因互有關連，故此一併處理。" } }, { "doc_id": 117, "seg_id": 25, "translation": { "en": "The complaints concerning the jury’s question and the further direction given by the learned judge were referred to in paragraphs 8 and 9.", "zh-HK": "第（3）項上訴理由所指的陪審團問題，及原審法官的進一步引導，見上文第8和9段。" } }, { "doc_id": 117, "seg_id": 26, "translation": { "en": "Mr. Wong, counsel for the applicant, submitted that from the question raised by the jury it could be seen that some of the jurors at that time thought that the applicant did not know she was carrying some dangerous drugs, and that therefore, in order to be fair, the trial judge should have given the jury the direction that if they were of the view that although the applicant knew that she was carrying some contraband goods, she had no idea that they were dangerous drugs, then they should find her not guilty. Mr. Wong complained that the further direction given by the trial judge was unidirectional in that he failed to remind the jury that if they considered that the applicant was not aware or might not be aware that there were dangerous drugs in the backpack, they should return a verdict of not guilty.", "zh-HK": "代表申請人的黃大律師認為從陪審團的問題可見有部分陪審員當時認為申請人對她有毒品一事並不知情，因此原審法官為持平起見，應該引導陪審團若果他們認為申請人雖然知道帶了違禁品，但不知情是毒品的話，則他們應裁決她無罪。黃大律師指原審法官的進一步引導是單向的，沒有提醒陪審團若果他們認為申請人不知道或可能不知道背囊藏有毒品，便要裁定罪名不成立。" } }, { "doc_id": 117, "seg_id": 27, "translation": { "en": "In our view, the trial judge in his summing up directing the jury to reach a verdict had repeatedly given specific, detailed and fair directions about the issue of whether the applicant knew that there were dangerous drugs in the backpack she was carrying. Among such directions were the following passages:", "zh-HK": "本庭認為，關於申請人是否對她攜帶的背囊藏有毒品知情一點，原審法官在引導陪審團裁決的總結辭中已多次給予明確、詳細和中肯的引導，其中包括下列幾段引導：" } }, { "doc_id": 117, "seg_id": 28, "translation": { "en": "“... Mr. Kwan [transliteration of 關] emphasized that you must pay attention to the fact that the dangerous drugs were concealed in a secret compartment, and that it is possible that it was really outside the defendant’s knowledge. If you accept that there is such a possibility, you should find her not guilty. The law is not that she is guilty simply because she might have knowledge of that. This certainly is a correct statement about the law.”", "zh-HK": "「…關大律師強調大家要注意嘅係毒品係收藏喺暗隔裡面，被告有可能真係唔知，如果大家接納呢一個可能性，就應該判佢無罪，而唔係話如果佢可能知就係有罪。咁呢一點當然係正確嘅講法；」" } }, { "doc_id": 117, "seg_id": 29, "translation": { "en": "“… The prosecution said if you find that the defendant did not know there were dangerous drugs concealed in the backpack, then you should find her not guilty; and the defence pointed out that if you think it is possible that the defendant did not know that, then you should acquit her. Members of the jury, what the defence said is correct. If you find that the defendant did not know the dangerous drugs were there, then of course you should find her not guilty. Not only that she did not traffic in the dangerous drugs, she did not even possess the dangerous drugs. If you think there is the possibility that she did not know the dangerous drugs were there, the result is the same. That’s because the benefit of the doubt must go to the defendant, so you still are required to find her not guilty.”", "zh-HK": "「…控方提過，如果各位裁定被告唔知道有毒品藏喺背包，咁大家要判佢無罪。辯方已經指出過，大家如果認為被告有可能唔知，大家都要判佢無罪。各位陪審員，辯方嘅講法係正確嘅，如果各位裁定被告唔知道有毒品，大家都然要判佢冇罪，佢唔單止係冇販毒，佢藏毒都唔係。如果各位認為被告有可能唔知有毒品，咁個後果係一樣，因為疑點利益係要歸於被告嘅，因此都要判佢無罪。」" } }, { "doc_id": 117, "seg_id": 30, "translation": { "en": "“Secondly, if you consider that the defendant’s evidence that she did not have the requisite knowledge is possibly true, you must return a verdict of not guilty.", "zh-HK": "「第二，如果各位認為被告所講嘅不知情情況係有可能嘅話，各位都要判佢罪名不成立；" } }, { "doc_id": 117, "seg_id": 31, "translation": { "en": "Thirdly, if you do not believe what the defendant said, then the outcome of your disbelief will depend on what is it that you believe and what is it that you don’t believe. If the thing which you don’t believe does not affect the crucial point, namely it is possible that she did not have the requisite knowledge, you must give the benefit of the doubt to her. I shall say this part again. If the thing which you don’t believe does not affect the crucial point, that is, it is possible that the defendant did not have the requisite knowledge, then you must still give the defendant the benefit of the doubt.”", "zh-HK": "第三，如果各位唔相信被告所講嘅內容，咁個結果就要視乎各位相信嘅係乜嘢，唔相信嘅係乜嘢。如果各位唔相信嘅部分並不影響被告可能不知情嘅重點嘅話，各位都要將疑點利益係畀被告。或者呢個部分我再講一次，如果各位唔相信嘅部分並不影響被告有可能不知情嘅重點，各位都要將疑點利益係畀被告；」" } }, { "doc_id": 117, "seg_id": 32, "translation": { "en": "The question raised by the jury during their deliberations after they retired was a request for direction from the trial judge to deal with the difference in opinions among themselves. The difference in opinions arose because some jurors thought that knowingly carrying contraband was not the same as knowingly carrying dangerous drugs. Therefore, the crux of the question was whether the jury could find the applicant guilty of trafficking in dangerous drugs if they considered that she knew what she carried was contraband. The further direction given by the trial judge was that the jury had to be satisfied that the applicant knew the article in question was a certain kind of dangerous drug before they could convict her. This direction was aimed at the crux of the jury’s question. In our judgment, in the summing up which the trial judge made earlier on, he had already given clear and thorough directions about the element of “knowledge”; that being so, when he replied to the jury’s question, it was appropriate for him to give a direction which was focused and direct. It was not necessary for him to repeat that the applicant did not commit the offence of trafficking in dangerous drugs if she did not know or might not know there were dangerous drugs in the backpack. We do not agree that the further direction given by the learned judge in response to the jury’s question was in any away unbalanced or unfair to the applicant.", "zh-HK": "陪審團在退席商議時提出的問題，是要求原審法官就他們之間的分歧給予法律方面的引導。他們的分歧在於有部分陪審員認為知情帶違禁品不代表知情帶毒品。是故，問題的焦點是若果陪審員認為申請人知道所帶的是違禁品，他們是否可裁決販運毒品罪名成立。原審法官的進一步引導，指出陪審團必須滿意申請人知道涉案的物品是某一種毒品，方能裁決她罪名成立。這是針對陪審團的問題的焦點的引導。本庭認為，有鑑於原審法官較早前的總結辭已就「知情」這項罪行元素給予了清淅和詳盡的引導，原審法官在回應陪審團的提問時給予直接和對焦的引導，是適當的做法。他不須再重複若果申請人不知道或可能不知道背囊藏有毒品，便不構成販運毒品的罪行。本庭不同意原審法官就陪審團員的問題所作出的進一步引導有欠持平或有對申請人不公之處。" } }, { "doc_id": 117, "seg_id": 33, "translation": { "en": "Mr Wong also complained that the trial judge erred in failing to give the jury any explanation as to the definition of dangerous drug in the Dangerous Drugs Ordinance. He submitted that the nature of a dangerous drug was a crucial matter in this case, and that it was even more necessary for the trial judge to explain to the jury the definition of dangerous drug in the ordinance when the jury’s question was about contraband and dangerous drugs.", "zh-HK": "黃大律師也指原審法官沒有就危險藥物在《危險藥物條例》下的定義向陪審團作出解釋是錯誤的。他的陳詞指危險藥物的本質是案中的關鍵事宜，尤其是當陪審團的問題是關乎違禁品和毒品時，原審法官就更應向陪審員解釋危險藥物在法例下的定義。" } }, { "doc_id": 117, "seg_id": 34, "translation": { "en": "At the beginning of the trial, the prosecution and the defence had already agreed that heroin was concealed in the back portion of the backpack which the applicant was carrying, and that the dangerous drugs in this case were governed by Part I of the First Schedule of the Dangerous Drugs Ordinance: see 4(c) and paragraph 9 of the Facts Admitted by the Prosecution and the Defence. For this reason, the trial judge in his summing up told the jury that there was no dispute between the prosecution and the defence over the fact that the dangerous drug involved in this case was heroin and that it was a dangerous drug governed by the Dangerous Drugs Ordinance.", "zh-HK": "本案的控辯雙方在案件開審時，已同意申請人所帶的背囊在背部位置藏有海洛英，以及涉案的毒品是受《危險藥物條例》的附表1第1部所管制：見《控辯雙方承認的事實》第4（c）和9段。原審法官因而在引導陪審團裁決的總結辭中指出，控辯雙方沒有爭議案中涉及的毒品是海洛英，及它是受《危險藥物條例》管制的毒品。" } }, { "doc_id": 117, "seg_id": 35, "translation": { "en": "Our view is that under these circumstances, the jury certainly would clearly understand that the dangerous drugs concealed in the backpack being carried by the applicant were drugs which fit the definition in the Dangerous Drugs Ordinance. In the present case, the disputes between the parties had nothing to do with the legal definition of dangerous drug or whether the drugs in question were dangerous drugs governed by the Ordinance. The trial judge was not required to explain anything about the definition of dangerous drug in the Ordinance. The question raised by the jury in the course of their deliberations did not show that they had any doubt concerning the legal definition of dangerous drug or whether the drugs involved in this case were dangerous drugs as defined in the Ordinance and so the trial judge needed to explain to them the legal definition of dangerous drug. Furthermore, we do not agree that the jury could be confused by the trial judge’s statement to them that before they could convict the applicant they had to conclude that she knew what she was carrying was a certain kind of dangerous drug and therefore they needed to be provided with some explanation about the legal definition of dangerous drug.", "zh-HK": "本庭認為，在此情況下，陪審團必然已清楚明瞭藏在申請人帶的背囊的毒品是屬於《危險藥物條例》所界定的危險藥物。案中控辯雙方的爭議亦無關危險藥物法律定義或涉案毒品是否法例所管制的危險藥物。原審法官沒有必要就危險藥物在法例下的定義給予說明。陪審團退席商議後提出的問題亦不顯示他們對於危險藥物的法律定義或涉案物品是否法例界定的危險藥物存有疑問，以致原審法官需要向他們解釋危險藥物的法律定義。本庭亦不同意原審法官告訴陪審員，他們只能在裁斷申請人知道所帶的物品是某一種類的毒品才能定罪，這點會使他們混淆，以致有必要解釋危險藥物的法律定義。" } }, { "doc_id": 117, "seg_id": 36, "translation": { "en": "With reference to the trial judge’s further directions given to the jury, Mr. Wong further submitted that it was necessary for the trial judge to remind the jury that ultimately they were entitled to have diverse views on the verdict and that they were not obliged to reach a legally valid verdict. Mr. Wong opined that the emphasis of the jury’s question was on the ratio by which a verdict could be constituted, and that therefore the trial judge’s approach was seriously inadequate and by which pressure would be exerted on the jury, so that they were not able to be free to deliberate and arrive at a verdict without being subjected to any form of pressure.", "zh-HK": "黃大律師就著原審法官對陪審團的進一步引導的另一陳詞，指原審法官有需要提醒陪審員最終可以對裁決持有分歧意見，及不一定要達致一個有法律效力的裁決。黃大律師認為陪審團提出的問題，重點在於裁決的比例，因此原審法官的處理手法嚴重不足，且對陪審團造成壓力，使他們不能在沒有壓力下自由思考和作出裁決。" } }, { "doc_id": 117, "seg_id": 37, "translation": { "en": "We do not agree with Mr. Wong’s interpretation of the jury’s question. The jury did not ask the trial judge for directions about how to reach a majority verdict. What they sought was further directions as to the element of “knowledge”. The trial judge replied that before they could convict the applicant they had to conclude that she knew what she was carrying was a certain kind of dangerous drug. After saying that, he asked the jury to indicate whether it was possible for them to reach a valid majority verdict if he gave them more time to continue their deliberation. He also told the jury that he would decide what the next step to take should be after he had their answer. It should be noted that the trial judge made such enquiry of the jury only after he discussed with the prosecuting counsel and the defence counsel and obtained their approval.", "zh-HK": "本庭不同意黃大律師對陪審團的問題的詮釋。陪審團並不是向原審法官尋求有關如何達致大多數裁決的指引，而是就「知情」這項罪行元素要求進一步的引導。原審法官在指出他們必須裁斷申請人知道所帶的物品是某一種類的毒品才可定罪後，要求陪審團表明，如果給予他們多一些時間繼續商議，他們是否有可能達致大多數的有效裁決。原審法官亦告訴陪審團，在得到他們的回覆後，他才會決定下一步怎樣處理。值得注意的是原審法官是在與控辯雙方的代表律師商討，並在他們同意下，向陪審團作出這項查詢。" } }, { "doc_id": 117, "seg_id": 38, "translation": { "en": "What the trial judge did was only making an enquiry of the jury. This was different from what happened in HKSAR v Chan Ka Man [2005] 1 HKC 162 and HKSAR v Chung Chi Bor [2008] 1 HKC 255. What transpired was not that the jury indicated that they could not reach a majority verdict and then the trial judge asked them to continue their deliberation. The purpose of the trial judge’s enquiry was simply to find out whether the jury was in such a situation that they could not reach a majority verdict. Since the jury’s answer was that they could reach a majority verdict, the trial judge did not need to remind them that they were entitled to have diverse views and that they were not obliged to reach a majority verdict. We do not consider that the approach taken by the trial judge resulted in pressure being exerted on the jury or created a risk that the jury was given the misconception that they were obliged to reach a majority verdict.", "zh-HK": "由於原審法官僅是向陪審團查詢，這與HKSAR v Chan Ka Man [2005] 1 HKC 162和香港特別行政區訴鍾志波 [2008] 1 HKC 255兩案的情況並不相同。原審法官並不是在陪審團表示不能達致大比數裁決後，要求陪審團繼續進行商議。原審法官的查詢，只是要瞭解陪審團是否處於不能達致大比數裁決的情況，由於陪審團的回覆是他們可以達致大多數裁決，原審法官遂沒有需要提醒他們是可以持有分歧的意見，及不達致大多數裁決。本庭不認為原審法官的處理手法存在對陪審團施壓或使他們誤以為必須達致大比數裁決的風險。" } }, { "doc_id": 117, "seg_id": 39, "translation": { "en": "Grounds of appeal (1) and (3) are not substantiated.", "zh-HK": "第（1）項和第（3）項上訴理由不能成立。" } }, { "doc_id": 117, "seg_id": 40, "translation": { "en": "Ground of appeal (2)", "zh-HK": "第（2）項上訴理由" } }, { "doc_id": 117, "seg_id": 41, "translation": { "en": "The applicant’s second ground of appeal is targeted at the directions given by the trial judge in the summing up regarding whether the applicant carried the dangerous drugs when she was being made use of and not knowing that there were dangerous drugs. The relevant part was set out below:", "zh-HK": "申請人的第（2）項上訴理由，是針對原審法官在總結辭中, 就申請人是否在被人利用及不知情的情況下販運毒品所作的引導。相關的部分節錄如下：" } }, { "doc_id": 117, "seg_id": 42, "translation": { "en": "“… The defence witnesses said that the defendant was rather simple-minded and was too ready to believe what other people said. You have to consider whether Lily did take advantage of the defendant’s weakness in this respect, won her confidence and then sent her to Malaysia by lying to her that she was to go there to fetch some goods samples. Of course, on the other hand, would a drug trafficker find someone who was completely ignorant of what’s going on to help him to convey dangerous drugs? In the course of conveying the drugs, if any contingency arises and if she can’t cope with it, then it may result in a loss of $800,000 odd. You need to consider this matter carefully from these different angles in a balanced and fair manner according to the evidence in this case.”", "zh-HK": "「…辯方證人講過被告比較天真，容易信人，喺各位考慮Lily係唔係利用被告呢一方面嘅弱點而騙取被告信任，再指示佢去馬來西亞「詐諦」話攞樣本呢？當然，另一方面嘅情況係毒販會唔會搵一個完全不知情嘅人去幫手運毒呢？途中如果有突發嘅事情，而佢係未能夠配合嘅話，咁就有可能會有八十幾萬嘅損失嘅。呢一啲不同嘅角度，各位需要基於本案嘅證據，平衡地、公平地小心作出考慮。」" } }, { "doc_id": 117, "seg_id": 43, "translation": { "en": "Mr. Wong submitted that the trial judge only directed the jury to consider the possibility that a drug trafficker would not take the risk of losing dangerous drugs worth $800,000 odd, but he did not direct the jury to consider another possibility, namely it would be easier for a drug trafficker to control the activities of a person who did not know what was going on, and when being stopped and questioned such a person would not give him or her away by behaving nervously or furtively. Mr. Wong relied on HKSAR v Punsalang Elmer Umali [2011] 3 HKLRD 55 to criticize that the trial judge’s directions were not only unbalanced, but they also unfairly undermined the applicant’s defence.", "zh-HK": "黃大律師認為原審法官只引導陪審團考慮毒販不會冒上損失80萬元多的毒品的風險，却沒有引導陪審團從另一角度，考慮毒販較容易控制不知情者的舉動，以及不知情者在被截查時不會神色慌張或行動閃縮而露出破綻。他引用HKSAR v Punsalang Elmer Umali [2011] 3 HKLRD 55一案；批評原審法官的引導既即不平衡，亦不公平地摧毀了申請人的辯解。" } }, { "doc_id": 117, "seg_id": 44, "translation": { "en": "In HKSAR v Punsalang Elmer Umali (paragraph 14) the Court of Appeal pointed out that whether a summing up is fair and balanced is always case and context specific and that the key point is the effect produced by the summing up as a whole.", "zh-HK": "在HKSAR v Punsalang Elmer Umali案中（第14段），上訴法庭指出，在考慮法官的總結辭是否公允持平時，必須顧及每宗案件個別的情況，重點在於總結辭所產生的整體效果。" } }, { "doc_id": 117, "seg_id": 45, "translation": { "en": "Moreover, in order to be fair and impartial, the trial judge in his summing up is duty bound to explain clearly to the jury both the prosecution case and the defence case.", "zh-HK": "此外，為達致持平不偏，主審法官在總結辭中亦有責任把控辯兩方面的理據都向陪審團說明。" } }, { "doc_id": 117, "seg_id": 46, "translation": { "en": "Regarding the issue of whether the applicant carried the dangerous drugs without her knowing what she was actually doing, the prosecution in their closing speech said that the drugs in question was worth a lot of money, and that if the applicant knew nothing about the true facts, Lily would have been reckless if she let her carry the drugs. When the trial judge gave directions to the jury as to the present case as a whole, he mentioned the defence case that the applicant was being made use of as a cat’s paw in this drug trafficking. After that he referred to the criticisms raised by the prosecution, i.e. would a drug trafficker find someone completely in the dark about the truth to help him convey his dangerous drugs, thereby taking the risk of losing the drugs that were worth several hundred thousand dollars? He just presented to the jury the arguments put forward by the two parties about this issue so that they could consider it from different perspectives. What he did was not as Mr. Wong said aiming for the destruction of the applicant’s defence. When the trial judge, in response to the defence counsel’s request, gave further directions to the jury on this issue, he explicitly said that he had to state the prosecution’s views too because he should not present only the defence case to the jury. He correctly reminded the jury that they should draw on their common sense to assess the arguments advanced by the prosecution and the defence.", "zh-HK": "就本案中申請人是否在不知情的情況下販運毒品這點，控方在結案陳詞時提出涉案毒品價值不菲，如申請人毫不知情，Lily不會謬然把毒品交由她運送。是故，當原審法官在向陪審團就整體案情作出引導時，他提及辯方的論據，即申請人是被利用運毒，之後再提及控方的意見，即毒販會否找一個完全不知情人協助運毒，甘冒上失去幾十萬元毒品的風險。他只是把控、辯兩方面在這項議題上的說法都一併帶出，以便陪審團可以從不同角度加以考慮。他不是如黃大律師所指，針對著申請人的辯解予以摧毀。原審法官在回應辯方大律師要求就這點給予陪審團補充的引導時，亦已明確指出他只是同時亦反映控方的說法，因為他不應該只是向陪審團反映辯方的立場。原審法官亦正確地指出，陪審員應以自己的普通常識去評估控辯兩方面的論點。" } }, { "doc_id": 117, "seg_id": 47, "translation": { "en": "We do not agree with the applicant’s allegation that the directions given by the trial judge as to whether she was made use of as a cat’s paw so that she carried the drugs without knowing what she was actually doing were tendentious or were destructive to her defence. Ground of appeal (2) is not substantiated either.", "zh-HK": "本庭不同意申請人指原審法官有關她是否遭人利用，在不知情下販運毒品的引導帶有指導性或是對其辯解理由作出摧毀性的破壞。第（2）項上訴理由亦不能成立。" } }, { "doc_id": 117, "seg_id": 48, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 117, "seg_id": 49, "translation": { "en": "Based on the above analysis and reasons, we do not consider the applicant’s conviction to be in any way unsafe or unsatisfactory. We therefore refuse to grant the applicant leave to appeal against her conviction.", "zh-HK": "基於上述分析和理由，本庭不認為申請人的定罪有欠安全或穩妥之處。本庭因此拒絕申請人上訴定罪的許可申請。" } }, { "doc_id": 117, "seg_id": 50, "translation": { "en": "Mr. Richard Wong, instructed by Messrs To Lam & Co., assigned by the Director of Legal Aid, for the Defendant/Applicant.", "zh-HK": "被告人/申請人：由法律援助署署長委派杜林律師事務所轉派黃達華大律師代表。" } }, { "doc_id": 117, "seg_id": 51, "translation": { "en": "Ms. Catherine Fung, Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司助理刑事檢控專員馮淑賢代表。" } }, { "doc_id": 118, "seg_id": 1, "translation": { "en": "Hon Yeung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判決書：" } }, { "doc_id": 118, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 118, "seg_id": 3, "translation": { "en": "On 14 August 2008, the Applicant Kan Kong Fai pleaded guilty before District Judge Andrew Chan to one count of manufacturing dangerous drugs and was sentenced to 4 years’ imprisonment. He now applies for leave to appeal against sentence.", "zh-HK": "2008年8月14日，申請人簡光輝在區域法院法官陳慶偉席前承認一項製造危險藥物罪，結果被判入獄4年。申請人不服判刑，現提出上訴許可申請，要求獲准就判刑上訴。" } }, { "doc_id": 118, "seg_id": 4, "translation": { "en": "Brief facts", "zh-HK": "案情摘要" } }, { "doc_id": 118, "seg_id": 5, "translation": { "en": "The offence took place in Room 914, Metropark Hotel Mongkok, 22 Lai Chi Kok Road, Kowloon. At about 9:30 p.m. on 14 January 2008, police officers entered and searched the room, in which the Applicant and two other persons were present. The officers seized from the room cocaine weighing 4.39 grammes in total as well as other drug manufacturing paraphernalia including an electronic scale, lighters, spoons, glass beakers, plastic cups, knives, plastic bowls, plastic bags containing soda powder, lighter refills and a wad of transparent resealable plastic bags. Traces of cocaine were found on the aforesaid paraphernalia.", "zh-HK": "案發地點是九龍荔枝角道22號旺角維景酒店914號房。2008年1月14日晚上約9時30分，警員進入該房間搜查時，發現申請人和另外兩名人士在內。警員在房間內搜獲共重4.39克的可卡因和其他製造毒品用具，包括電子磅、打火機、匙羹、玻璃杯、膠杯、刀，膠兜、內有梳打粉的膠袋、打火機補充劑和一疊透明可再封膠袋等。上述製毒用具都有微量可卡因。" } }, { "doc_id": 118, "seg_id": 6, "translation": { "en": "The Applicant admitted that, having obtained cocaine from others, he would mix the drug with soda powder in a glass beaker and heat the mixture for 10 to 15 minutes. Upon cooling down, the mixture would become ‘crack cocaine’. The Applicant further said that he would package the ‘crack cocaine’ and distribute it to customers.", "zh-HK": "申請人承認從他人取得可卡因後，會將可卡因混合梳打粉放入玻璃杯內加熱10至15分鐘，混合物冷卻後便成為“霹靂可卡因”。申請人更表示會將製成的“霹靂可卡因”包裝及分發給客人。" } }, { "doc_id": 118, "seg_id": 7, "translation": { "en": "The Government Chemist opined that the manufacturing method admittedly used by the Applicant was a common way of making ‘crack cocaine’ in Hong Kong, and that the paraphernalia seized had also been used to process cocaine.", "zh-HK": "根據政府化驗師的意見，申請人承認的製毒方法和香港流行製造“霹靂可卡因”的方法相符，而搜獲的其他用具亦確曾用作處理可卡因。" } }, { "doc_id": 118, "seg_id": 8, "translation": { "en": "The Applicant’s background", "zh-HK": "申請人的背景" } }, { "doc_id": 118, "seg_id": 9, "translation": { "en": "The Applicant, aged 29, has 8 previous convictions, 3 of which relate to dangerous drugs, namely, conspiracy to traffic in dangerous drugs, trafficking in dangerous drugs and possessing dangerous drugs, and the others are mainly in respect of offences involving dishonesty.", "zh-HK": "申請人29歲，有8次犯罪記錄，其中3次與毒品有關，分別是串謀販毒、販毒及藏毒，其餘罪行大部份涉及不誠實行為。" } }, { "doc_id": 118, "seg_id": 10, "translation": { "en": "The trial judge’s basis for sentence", "zh-HK": "原審法官的判刑基礎" } }, { "doc_id": 118, "seg_id": 11, "translation": { "en": "The trial judge pointed out the present case involved an insignificant quantity of drugs and that, given the small scale of the manufacturing operation, the quantity of drugs produced would be limited. The judge referred to the case of HKSAR v Wong Ping Kay (CACC 495/2001) in which the Court of Appeal adopted a starting point of 10 years’ imprisonment for manufacturing 14.88 grammes of heroin, which was roughly 1.8 times of the starting point for trafficking in the same quantity of drugs.", "zh-HK": "原審法官指出案件涉及毒品的份量並非巨大，生產規模亦屬細小，故產量不會高。原審法官援引香港特別行政區 訴 王炳基（CACC 495/2001）案，指出上訴庭將製造14.88克海洛英的量刑基準定為10年，即約是販運同等份量毒品的量刑基準的1.8倍。" } }, { "doc_id": 118, "seg_id": 12, "translation": { "en": "The trial judge pointed out that trafficking in 4.39 grammes of cocaine should attract a starting point of 40 months’ imprisonment. The judge multiplied this by the aforesaid figure of 1.8 and arrived at a starting point of 72 months (i.e. 6 years) for the Applicant’s drug manufacturing offence. The term was reduced by one-third discount to 4 years on account of the Applicant’s guilty plea. The judge considered the starting point of 6 years appropriate after taking into account the quantity of drugs involved, the scale of operation, the Applicant’s role and his previous convictions.", "zh-HK": "原審法官指出販運4.39克可卡因的量刑基準應為40個月監禁。原審法官以上述1.8倍作為針對申請人製毒罪的判刑而得出72個月（即6年）的量刑基準，並因申請人認罪而將刑期扣減三份一至4年。原審法官認為以涉案毒品份量、製毒規模、申請人扮演的角色及其犯罪記錄，6年是適當的量刑基準。" } }, { "doc_id": 118, "seg_id": 13, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 118, "seg_id": 14, "translation": { "en": "Ms Chow, Counsel for the Applicant, agrees that the sentence for manufacturing of dangerous drugs should be more severe than that of trafficking in the same quantity of drugs, but argues that the former should not be as much as 1.8 times of the latter. Ms Chow stresses that the defendant in Wong Ping Kay was charged with both manufacturing and trafficking and 14.88 grammes of drugs were involved. Furthermore, as the defendant had been residing at the address in question for almost one year, he had probably been involved in drug manufacturing for a longer period of time. Ms Chow emphasizes that, compared with those of the defendant in Wong Ping Kay, the Applicant’s previous convictions are not serious.", "zh-HK": "代表申請人的周慧珠大律師同意製毒罪的判刑應比販運同份量毒品的判刑高，但不應達1.8倍。周大律師強調王炳基案的被告人面對製毒和販毒兩項罪行而涉及毒品份量達14.88克，他參予製毒的時間亦可能較長，原因是他在有關地址居住了近1年。周大律師強調申請人的犯罪記錄和王炳基案被告人的犯罪記錄相比屬較輕。" } }, { "doc_id": 118, "seg_id": 15, "translation": { "en": "Ms Chow points out there are other decided cases which indicate that the starting point for drug manufacturing is only 1.6 times that for trafficking in the same quantity of drugs. She further submits that the Applicant should not be subject to a starting point which exceeds 5 years.", "zh-HK": "周大律師指出有其他案例顯示製毒的量刑基準只是販運同等份量毒品的量刑基準的1.6倍。周大律師指適用於申請人的量刑基準不應超越5年監禁。" } }, { "doc_id": 118, "seg_id": 16, "translation": { "en": "In her written submission, Ms Chow also cites the case of HKSAR v Chan Fai [2004] 3 HKLRD 465 and points out that the defendant in that case, who admitted that he would manufacture 20 kilogrammes of ketamine, was eventually sentenced to 8 years’ imprisonment, which was the same as the starting point applicable at that time to trafficking in 20 kilogrammes of ketamine.", "zh-HK": "在其書面陳述，周大律師亦援引香港特別行政區 訴 陳輝 [2004] 3HKLRD 465案。周大律師指出該案的被告人承認要製造20公斤“K仔”，他最終的8年判刑亦和販運20公斤“K仔”的當時適用量刑基準相同。" } }, { "doc_id": 118, "seg_id": 17, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 118, "seg_id": 18, "translation": { "en": "In the aforesaid case of Chan Fai, although the defendant admitted that he would manufacture 20 kilogrammes of ketamine, the police were in fact unable to find any manufactured drug. All they found were large quantities of paraphernalia and raw materials for making drugs.", "zh-HK": "在上述陳輝案，雖然被告人承認要製造20公斤“K仔”，但事實上警方並沒有搜出任何已製成的毒品，而只是搜出大量的製毒公具及原料。" } }, { "doc_id": 118, "seg_id": 19, "translation": { "en": "The starting point for drug trafficking is mainly a reflection of the quantity of drugs involved. In drug manufacturing cases, the quantity of drugs seized may give an idea of the scale of the manufacturing operation but is not the sole or dominant consideration in determining the starting point.", "zh-HK": "販運毒品罪行的量刑基準主要反映毒品的份量。在製毒案件，搜獲的毒品份量能顯示製毒規模的大小，但並非決定量刑基準的唯一或主要的因素。" } }, { "doc_id": 118, "seg_id": 20, "translation": { "en": "In the present case, although the police seized only 4.39 grammes of cocaine, the paraphernalia and raw materials in question could be used for producing a large quantity of ‘crack cocaine’. The facts of the case showed that the process of manufacturing ‘crack cocaine’ was simple and fast.", "zh-HK": "在本案雖然警方只搜獲4.39克可卡因，但涉案的用具及原料是可以製造較大份量的“霹靂可卡因”。案情顯示製造“霹靂可卡因”，過程簡單，快捷。" } }, { "doc_id": 118, "seg_id": 21, "translation": { "en": "Drug manufacturing comprises certain processes by which raw materials are converted into drugs ready for consumption, which are then supplied to drug addicts. Therefore, the offence of drug manufacturing is the most serious of all drug-related offences.", "zh-HK": "製毒是將原料透過一些程序變成可吸食的毒品，供應吸毒者，因此以毒品案件而言製毒罪行是最嚴重的。" } }, { "doc_id": 118, "seg_id": 22, "translation": { "en": "In R v Cheung Wai Kwong & Another [1997] HKLRD 344, Chan J (as he then was) rightly pointed out that the offence of drug manufacturing was much more serious than trafficking in or possessing drugs and warranted a heavier sentence. He also emphasized that in determining the proper sentence for the offence of drug manufacturing, the factors to be considered included the quantity of drugs produced, the scale of operation, the capacity of equipment, the output of drugs at the manufacturing station, and the role played by the accused.", "zh-HK": "在R v Cheung Wai Kwong & Another [1997] HKLRD 344案，陳兆愷法官正確地指出製毒罪行較販毒或管有毒品罪行更為嚴重，亦須處以更嚴唆的刑罰。陳兆愷法官亦強調在決定製毒的刑罰時，要考慮的因素包括製成的毒品份量、運作的規模、儀器的能量、工場的生產量和被告人扮演的角色。" } }, { "doc_id": 118, "seg_id": 23, "translation": { "en": "We agree that the scale of production in the present case was small and the output of drugs was not necessarily very large. However, in view of the manufacturing process involved and the quantity of soda powder found, the Applicant would have been able to manufacture a substantial quantity of drugs. Furthermore, the Applicant had played a major role in the manufacturing process and had confessed to the police officer that the manufacturing process was basically conducted by him from beginning to end.", "zh-HK": "本庭同意本案的製毒規模細小，產量亦不一定會很高。但以涉案的製毒過程和搜獲梳打粉的份量，申請人是可以製造份量不少的製成品的。再者，申請人在製毒過程扮演主要角色，他向警員招認顯示他基本是個人全程參予製毒行為。" } }, { "doc_id": 118, "seg_id": 24, "translation": { "en": "Ms Chow emphasizes that when the Applicant was arrested, the room in question had been hired for only 2½ hours. However, it should not be overlooked that the use of the hotel room by the Applicant to manufacture the drugs showed that the offence was planned and that its purpose must have been to make it more difficult for the police to detect the offence. On the Applicant’s description of the drug manufacturing process, he could have repeatedly manufactured ‘crack cocaine’ in a span of 2½ hours.", "zh-HK": "周大律師強調申請人被拘捕時，涉案房間被租用時間只有約2小時30分，但本庭不能忽視申請人利用酒店房間進行製毒罪行，顯示其罪行是有計劃的，其目的亦必然是加大警方破案的困難。根據申請人描述的製毒過程，2小時30分亦足以容許申請人多次製造“霹靂可卡因”。" } }, { "doc_id": 118, "seg_id": 25, "translation": { "en": "The Applicant is not a first offender. He has many previous convictions, some of which are in respect of serious offences such as conspiracy to traffic in dangerous drugs, trafficking in dangerous drugs and possessing dangerous drugs.", "zh-HK": "申請人亦非初犯，他有多次案底，其中更包括串謀販毒、販毒和藏毒等嚴重罪行。" } }, { "doc_id": 118, "seg_id": 26, "translation": { "en": "In any event, as far as the offence of drug manufacturing is concerned, an appropriate minimum starting point is 6 years’ imprisonment irrespective of the quantity of drugs seized, in order to reflect the gravity of the offence.", "zh-HK": "無論如何，以製毒罪行而言，不論搜獲毒品多少，6年量刑基準可被視為最低量刑基準，以反映該等罪行的嚴重性。" } }, { "doc_id": 118, "seg_id": 27, "translation": { "en": "We reiterate what Roberts CJ expressly stated in The Queen v Wong Chun Ping & Others [1984] HKLR 247, at 257H.", "zh-HK": "本庭再複述前最高法院首席法官羅拔士在The Queen v Wong Chun Ping & Others [1984] HKLR 247，在257頁H所作的明確聲明。" } }, { "doc_id": 118, "seg_id": 28, "translation": { "en": "We suggest for the consideration of courts that only in exceptional cases, for instance if it is clear that the capacity of the equipment is very small, should a court consider a sentence of less than ten years’ imprisonment, on a conviction for manufacturing dangerous drugs. Much higher sentences should be imposed if it is shown that the manufacturing station had been producing or was likely to produce substantial quantities of DD.", "zh-HK": "“本庭作出以下建議，供其他法庭參考。除非案件極為例外，如涉案製毒工具的能量明顯極小，法庭在裁定製毒罪成時，不應考慮少於10年的監禁。如製毒工場已製成或大可能會製成大量毒品，則判刑更應大幅度提高。”" } }, { "doc_id": 118, "seg_id": 29, "translation": { "en": "Taking into account the scale of the manufacturing operation, the quantity of drugs seized, the role played by the Applicant and his previous convictions, the starting point of 6 years adopted by the trial judge and the ultimate sentence of 4 years passed by him are not manifestly excessive. There is no room for reduction of sentence. We dismiss the Applicant’s application for leave to appeal against sentence.", "zh-HK": "以本案製毒的規模，搜獲毒品份量、申請人扮演的角色及其犯罪記錄，原審法官採納的6年量刑基準及最終的4年判刑都絕非明顯過高，並無扣減餘地。本庭駁回申請人要求減刑的上訴許可申請。" } }, { "doc_id": 118, "seg_id": 30, "translation": { "en": "Ms Olivia Tsang, Senior Public Prosecutor, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官曾藹琪代表。" } }, { "doc_id": 118, "seg_id": 31, "translation": { "en": "Ms Monica Chow, instructed by Wong & Co. on assignment by the Legal Aid Department, for the Applicant.", "zh-HK": "申請人：由法律援助署委派王吉顯律師行轉聘周慧珠大律師代表。" } }, { "doc_id": 119, "seg_id": 1, "translation": { "en": "Hon Barnes J (giving the judgment of the Court):", "zh-HK": "原訟法庭法官張慧玲 ：" } }, { "doc_id": 119, "seg_id": 2, "translation": { "en": "The Applicant Wong Ching Chiu was the 3rd defendant at trial. He and two other persons (D1 and D2) were jointly charged with one count of robbery, contrary to section 10 of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong. The Applicant pleaded not guilty to robbery but admitted to the wounding of the victim as particularised in the charge. The Applicant was convicted after trial and was sentenced to 5 years’ imprisonment.", "zh-HK": "申請人黃証潮原是第‍三被告人，他與第‍一及第‍二被告人一同被控一‍項「搶劫」罪，違反香港法例第 210 章《盜竊罪條例》第 10 條。申請人否認「搶劫」罪，但承認控罪中所指的傷人情況。經審訊後，申請人被判罪名成立，被判處監禁5 年。" } }, { "doc_id": 119, "seg_id": 3, "translation": { "en": "The Applicant applied to the Court of Appeal for leave to appeal against conviction and sentence, but his application was dismissed by Yeung JA on 13 December 2006. The Applicant now applies to the Court of Appeal for leave to appeal against sentence.", "zh-HK": "申請人向上訴法庭申請針對定罪及判刑的上訴許可，有關申請於2006 年12 月13 日被上訴法庭法官楊‍振‍權拒絕。申請人再向上訴法庭提出不服判刑的上訴許可申請。" } }, { "doc_id": 119, "seg_id": 4, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 119, "seg_id": 5, "translation": { "en": "Mr Ng, the victim herein, was the proprietor of a boutique. One month prior to the offence, D1 became an employee of Mr Ng and, as such, came to know that there were frequent movements of large sums of cash in the course of business of the boutique, that a “reconciliation” of accounts would be carried out every week, and that it was Mr Ng’s usual practice to deposit the cash into a bank near his boutique every Tuesday. D1 had actually helped Mr Ng make deposits.", "zh-HK": "案中受害人吳‍先生為時裝店東主。在案發前一‍個月，第‍一被告人受僱於吳‍先生，因而知悉店舖在經營中經常有大量現金出入，每星期會進行「對數」；而吳‍先生亦慣常每逢星期二將現金存入店舖附近的銀行。第‍一被告人曾協助吳‍先生將錢存入銀行。" } }, { "doc_id": 119, "seg_id": 6, "translation": { "en": "D1 informed her cohabitee (i.e. D2) of the details of such deposits. D2 told D1 that he was going to rob Mr Ng with other accomplices.", "zh-HK": "第‍一被告人將該入數詳情告知她的同居男友(即第‍二被告人)。第‍二被告人則告知第‍一被告人他會與其他黨羽一起打劫吳‍先生。" } }, { "doc_id": 119, "seg_id": 7, "translation": { "en": "On the morning of the day of the offence, Mr Ng went to the bank to make a deposit, carrying with him a black carrier bag that contained $400,300 cash, crossed cheques in a total sum of $54,000 and some personal belongings. After Mr Ng had left, D1 received a call from D2 and told him Mr Ng’s movements. When Mr Ng walked past No. 666 Castle Peak Road and was about to go to a newspaper stand to buy newspapers, he was suddenly punched on the head by the Applicant and another person who is still at large. The punch caused him to fall on the ground, and his black carrier bag was snatched. The Applicant and the said other person then boarded a car driven by D2 and left the scene. The Applicant was subsequently given $60,000. Mr Ng sustained injuries in the incident.", "zh-HK": "在案發當天早上，吳‍先生帶著載有400,300 元的現金、總值54,000 元劃線支票及一些個人財物的黑色孭袋往銀行入數。吳‍先生離開後，第‍一被告人接獲第‍二被告人來電，她便將吳‍先生行踪如實告訴第‍二被告人。當吳‍先生行經青山道666 號，準備前往一‍報紙檔購買報紙時，突然被申請人及另一‍在逃人士用拳頭襲擊頭部，令他跌在地上。他身上的黑色孭袋亦被搶去。兩‍人得手後乘坐由第‍二被告人駕駛的車輛離開。事後申請人獲分60,000 元。事件中，吳‍先生身體受傷。" } }, { "doc_id": 119, "seg_id": 8, "translation": { "en": "Defence case", "zh-HK": "辯方案情" } }, { "doc_id": 119, "seg_id": 9, "translation": { "en": "The Applicant elected to give evidence. He did not deny that he was one of the two persons who assaulted Mr Ng during the robbery, but he claimed that he merely helped someone hit Mr Ng and he did not witness Mr Ng’s black carrier bag being snatched. Subsequent to the incident, he was given $60,000 being “travelling and general expenses”.", "zh-HK": "申請人選擇作證。他不否認吳‍先生被劫時他是兩‍名襲擊者之一，但他指稱他祇是幫手打人，並沒有目睹吳先生的黑色孭袋被搶。事後他收取了60,000 元「車馬費」。" } }, { "doc_id": 119, "seg_id": 10, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 119, "seg_id": 11, "translation": { "en": "In his written grounds of appeal, the Applicant said:", "zh-HK": "申請人在其書面上訴理由指稱 ：" } }, { "doc_id": 119, "seg_id": 12, "translation": { "en": "In the High Court case cited by the lawyer who represented me, the victim was a woman who was dragged to a rear staircase, pinned down on the ground and assaulted. The case also involved two assailants, and the offence was committed in the evening. The District Court sentenced (the defendants) to 5 years’ imprisonment, and on appeal to the High Court the term was varied to 4 years. The High Court Judge also pointed out that the sentence for unarmed robbery should be 4 years, (not) 5 years. The aggravating factors in the above case were that the victim was a woman, the offence took place in the evening, she was dragged to a rear staircase where she was pinned down on the ground and beaten up, and there were two offenders. The aggravating factors in that case were more serious than those in my case. Judge Anthony Kwok took 5 years as the starting point by reason of the amount involved and the premeditated nature of the offence. However, the High Court Judge took 4 years as the starting point when the case involved more serious aggravating factors. Why is my case more serious?", "zh-HK": "「根据我代表律師提出嘅高等法院案例 ：事主係女性，被捉入後樓梯，係地下打，同樣兩名兇徒，時間係晚上；係區域法院判5年，上訴至高等法院判4年，高等法院大法官亦指出無武器下搶劫，刑期係4年而應該係5年。案例中嘅加刑條件事主係女性，時間係晚上捉入後樓梯落地下打。兩‍名兇徒，加刑條件方面係比我本人單案更嚴重。敦啟安法官指出因為金額同有預謀所以要以5年起步。但案例中加刑條件更多高等法院大法官指出應以4年為判刑點，何解我本人單案會更重？」" } }, { "doc_id": 119, "seg_id": 13, "translation": { "en": "In his oral submissions, the Applicant stressed that the circumstances of the present case were not as serious as those of other cases, because the victims in the other cases were women who were assaulted, and the victim in one of those cases was even dragged to a rear staircase. In essence, the Applicant contended that the trial judge should not have taken 5 years as the starting point as he had not used any weapon in the case.", "zh-HK": "申請人在其口頭陳詞時亦強調指本案相比其他案例，案情不及它們嚴重，因該些案例涉及女性受害人及毆打受害人，更有一‍宗案例涉及將受害人捉到後樓梯。申請人的重點指基於他在案中沒有使用武器，故此，原審法官不應以5 年為量刑起點。" } }, { "doc_id": 119, "seg_id": 14, "translation": { "en": "Reasons for sentence", "zh-HK": "判刑理由" } }, { "doc_id": 119, "seg_id": 15, "translation": { "en": "9.In considering sentence, the trial judge rightly pointed out that the maximum sentence for robbery was life imprisonment. The judge took into account the cases of Mo Kwong Sang v. R. [1981] HKLR 610, R. v. Yau Kwok Tung [1987] HKLR 782 and HKSAR v. Ting Chiu [2003] 3 HKLRD 378. The Court of Appeal has said that the starting point for robbery committed in a public place without displaying any knife or dangerous weapon should be 4 years’ imprisonment, and that cases involving two or more robbers are more serious than cases involving one robber.", "zh-HK": "原審法官在判刑時，已正確指出就搶劫罪而言，最高刑罰為終身監禁。法官已參閱案例茆廣生（Mo Kwong Sang v. R.） [1981] HKLR 610, R. v. Yau Kwok Tung [1987] HKLR 782及HKSAR v. Ting Chiu [2003] 3 HKLRD 378。上訴庭曾指在公眾地方干犯搶劫罪，如劫匪沒有展示刀或其他危險武器，量刑的基準為4 年監禁；亦提及如劫案涉及多於一‍名劫匪，案情則會較單一‍劫匪為重。" } }, { "doc_id": 119, "seg_id": 16, "translation": { "en": "10.The trial judge was well aware that no weapon was produced, used or displayed during the robbery. However, he took the view that the present case was more serious than other unarmed robberies. The amount of cash involved in this case exceeded $400,000. Even though some of the stolen money had been recovered, the victim still suffered a loss of over $340,000, which was unlikely to be recovered. Moreover, the present case involved an organised and premeditated robbery as opposed to an “opportunistic” crime in which the offender simply waited for an opportunity to commit an offence in a public place. The robbery in the present case was carefully planned, and a false vehicle registration plate was used as a cover-up. Violence was used during the robbery and the victim suffered pecuniary losses as well as physical injuries.", "zh-HK": "法官清楚知悉在本案行劫期間並沒有出示、行使或展示任何武器，但他認為本案較一般沒有使用武器的劫案更為嚴重。本案涉及現金金額多達四十多萬‍元；即使不計已「起回」的部份贓款，損失仍高達三十四‍多萬元，有關損失金額肯定難以追討。再者，本案是一‍宗有組織、有預謀的搶劫案，有別於一些祇是在公眾地方伺機行事、屬「機會主義」的犯案。案件是經過精心策劃，行事期間有使用假車牌作掩飾；在搶劫過程中有使用武力，令受害人除蒙受金錢損失外，身體亦受傷。" } }, { "doc_id": 119, "seg_id": 17, "translation": { "en": "11.Having considered the above factors, the trial judge held that an appropriate starting point was 5 years.", "zh-HK": "法官在考慮了上述的種種因素後，認為恰當的判刑起點為5 年。" } }, { "doc_id": 119, "seg_id": 18, "translation": { "en": "12.In respect of the Applicant’s case, the trial judge pointed out that the three defendants arrived at the scene together and committed the offence. D2 was the driver, and the three of them were in fact jointly committing the offence, for which they all had to be liable. The Applicant did use violence. Even though he did not physically snatch the victim’s property, his culpability at law was similar to that of the other defendants. The trial judge noted that the Applicant had pleaded not guilty and had not shown any remorse, and in the absence of any valid mitigating factor, the trial judge sentenced the Applicant to 5 years’ imprisonment.", "zh-HK": "就申請人方面，法官指三‍名人士一同到達現場干犯搶劫，第‍二被告人負責駕車，三‍人實是一同干犯搶劫罪，要承擔法律責任。申請人有使用武力，即使他不是親手搶去受害人財物的人，在法理上他的罪責與其他同犯相若。法官指申請人否認控罪、無悔意、沒有有效求情理由，故判處申請人5 年監禁。" } }, { "doc_id": 119, "seg_id": 19, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 119, "seg_id": 20, "translation": { "en": "13.Generally speaking, the starting point for robbery in a public place without displaying a knife or other weapon is 4 years’ imprisonment. Even though the present case did not involve an armed robbery, as the trial judge pointed out, there were a number of aggravating factors.", "zh-HK": "一般而言，在公眾地方干犯搶劫罪，如沒有展示刀或其他武器，量刑基準是4 年。本案雖非涉及持械行劫，但如法官所言，本案有令案情更嚴重的種種因素。" } }, { "doc_id": 119, "seg_id": 21, "translation": { "en": "14.In HKSAR v. Ng Man Lung (吳文龍) CACC 451/2004, the applicant was convicted after trial on one count of robbery and was sentenced to 5 years’ imprisonment. The facts of the case revealed that a staff member of a jewellery company was robbed by the applicant and two other offenders in Causeway Bay when she was taking cash belonging the company to a bank to make a deposit. The applicant was caught at the scene and the stolen property was recovered. In determining the applicant’s application for leave to appeal against sentence, Cheung JA said:", "zh-HK": "在香港特別行政區訴吳文龍，CACC451/2004一‍案，案中申請人經審訊後被裁定一‍項「搶劫」罪罪名成立，被判監禁5 年。案情顯示一‍名珠寶公司職員攜帶屬於公司的現金前往銀行存款時，在銅鑼灣遭申請人及另外兩‍名匪徒搶劫。申請人當場被捕，起回失物。就申請人針對刑罰的上訴許可申請，上訴法庭法官張澤祐指 ：" } }, { "doc_id": 119, "seg_id": 22, "translation": { "en": "… This is a premeditated street robbery. The Applicant is an illegal immigrant and he carried out a robbery with two other robbers in broad daylight outside the busy Times Square against the victim who was carrying cash to the bank. It is obvious that the offence was carefully planned and executed and not committed out of momentary greed. Violence was used against the victim. The robbers grabbed her by the neck and punched her face and head. The sentence imposed in the present case is appropriate and in line with the Court of Appeal’s sentencing guideline for robbery. The application for leave to appeal against sentence is dismissed.", "zh-HK": "「…… 本案是一宗有預謀的街頭搶劫案，申請人是一名非法入境者，而又聯同其他兩名劫匪在光天化日，行人眾多的時代廣場外，糾黨行劫一名攜有現款前往銀行的受害人。這顯示本案的劫匪不是出於一時貪念，這宗劫案是經過深思熟慮及有計劃的行動。受害人亦遭受到暴力對待，匪徒箍着她的頸項及用拳頭襲擊她的面部及頭部。本案的刑期是恰當的，亦符合上訴法庭頒發的有關搶劫罪刑期的指引。本庭駁回針對刑期的上訴許可申請。」" } }, { "doc_id": 119, "seg_id": 23, "translation": { "en": "15.The facts of the present case were in fact similar to those in Ng Man Lung except that, when compared with Ng Man Lung in which the robbery was committed by an illegal immigrant, the robbery in the present case was better-planned.", "zh-HK": "本案案情實與吳文龍相若，但相對吳文龍的非法入境者而言，本宗劫案的計劃更週詳。" } }, { "doc_id": 119, "seg_id": 24, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 119, "seg_id": 25, "translation": { "en": "On the facts of the present case, the sentence imposed on the Applicant is appropriate and consistent with the Court of Appeal’s sentencing guideline for robbery. The application for leave to appeal against sentence is accordingly dismissed.", "zh-HK": "以本案案情而言，刑期恰當，亦符合上訴庭頒發有關搶劫罪刑期的指引。本庭駁回針對刑期的上訴許可申請。" } }, { "doc_id": 119, "seg_id": 26, "translation": { "en": "Hon Tang VP:", "zh-HK": "上訴庭副庭長鄧國楨 ：" } }, { "doc_id": 119, "seg_id": 27, "translation": { "en": "17.I agree.", "zh-HK": "我同意。" } }, { "doc_id": 119, "seg_id": 28, "translation": { "en": "Mr Richard Ma, Senior Government Counsel, for the Respondent.", "zh-HK": "答辯人：由律政司高級政府律師馬游龍代表。" } }, { "doc_id": 119, "seg_id": 29, "translation": { "en": "The Applicant in person.", "zh-HK": "申請人：無律師代表，親自出席。" } }, { "doc_id": 120, "seg_id": 1, "translation": { "en": "Hon D Pang JA (giving the Reasons for Judgment of the court):", "zh-HK": "上訴法庭法官彭偉昌頒發上訴法庭判案理由書：" } }, { "doc_id": 120, "seg_id": 2, "translation": { "en": "This case was originally heard in the Court of First Instance of the High Court where the applicant was convicted after trial of one count of “trafficking in a dangerous drug” (the 3rd charge in the indictment), involving a net narcotic weight of 5.76 kilograms of “ice”. He was sentenced to 30 years and 6 months’ imprisonment by the trial judge (DHCJ Poon). The applicant applied for leave to appeal against conviction.", "zh-HK": "本案源於高等法院原訟法庭。申請人在審訊後被裁定一項販運危險藥物罪（公訴書上的控罪（三））成立，控罪涉及以淨含毒量計5.76公斤的‘冰’。原審法官（潘兆童暫委法官）把他判囚30年6個月。申請人不服，就定罪提出上訴許可申請。" } }, { "doc_id": 120, "seg_id": 3, "translation": { "en": "A. The Charges", "zh-HK": "A.控罪" } }, { "doc_id": 120, "seg_id": 4, "translation": { "en": "Below are the three charges originally faced by the applicant:", "zh-HK": "以下是申請人原本面對的三項控罪：" } }, { "doc_id": 120, "seg_id": 5, "translation": { "en": "Charge (1) alleged that between 1 July 2012 and 25 July 2012 he conspired with Wong Chi Chiu (“Wong”), Chan Ming Kei (“Chan A”), Chan Kam Fai (“Chan B”), Fan Chi Shing (“Fan”) and other persons unknown to traffic in heroin.", "zh-HK": "控罪（一）指他在2012年7月1日至2012年7月25日期間與黃志超（‘黃’）、陳銘基（‘陳甲’）、陳淦輝（‘陳乙’）、范志成（‘范’）及其他身分不詳的人士串謀販運海洛英。" } }, { "doc_id": 120, "seg_id": 6, "translation": { "en": "Charge (2) alleged that on a day unknown in February 2013 he conspired with Lee Hok Leung (“Lee”) and other persons unknown to traffic in “ice”.", "zh-HK": "控罪（二）指他在2013年2月某日與李學樑（‘李’）及其他身分不詳的人士串謀販運冰毒。" } }, { "doc_id": 120, "seg_id": 7, "translation": { "en": "Charge (3) alleged that on 23 May 2013 he, together with “Wong”, So Pui Ying (“So”) and “Lee”, trafficked in “ice”.", "zh-HK": "控罪（三）指他在2013年5月23日連同‘黃’、蘇佩盈（‘蘇’）及‘李’販運冰毒。" } }, { "doc_id": 120, "seg_id": 8, "translation": { "en": "B. The trial", "zh-HK": "B.原審情況" } }, { "doc_id": 120, "seg_id": 9, "translation": { "en": "The applicant was the only defendant in this case as “Wong”, “Chan B”, “Fan”, “Lee” and “So” pleaded guilty at various times to their respective charges.", "zh-HK": "申請人是本案唯一一名被告，‘黃’、‘陳乙’、‘范’、‘李’及‘蘇’等人則先後就相關的控罪認罪。" } }, { "doc_id": 120, "seg_id": 10, "translation": { "en": "After pleading guilty, “Wong” and “Lee” turned from accomplices to become prosecution witnesses.", "zh-HK": "認罪後的‘黃’和‘李’由共犯轉為控方證人。" } }, { "doc_id": 120, "seg_id": 11, "translation": { "en": "As can be seen from the terms of the charge, “Lee” was the only witness who could offer evidence against the applicant in respect of Charge (2) and his testimony was the only evidence on which the prosecution relied against the applicant on Charge (2). However, “Lee” refused to give evidence after arriving at court and as a result, the prosecution had to abandon calling evidence in respect of Charge (2). As regards Charge (3) in which “Lee” had participated it would be for “Wong” to offer evidence. “Wong” of course had to testify also on Charge (1).", "zh-HK": "從控罪的內容可見，‘李’是唯一能夠就控罪（二）頂證申請人的證人，他的證供也是控方賴以指證申請人控罪（二）的唯一證據。然而，‘李’在到庭之後卻拒絕作供，以致控方須就控罪（二）放棄舉證，‘李’有分參與的控罪（三）則留待‘黃’來作證。‘黃’當然也須就控罪（一）作證。" } }, { "doc_id": 120, "seg_id": 12, "translation": { "en": "In the end, after hearing all testimonies and considering all evidence, the jury unanimously found the applicant not guilty on Charge (1), and by a majority of 6:1 found the applicant guilty on Charge (3).", "zh-HK": "結果，陪審團在聽畢所有證供、證據後一致裁定申請人控罪（一）無罪，另外又以6對1的比數裁定申請人控罪（三）有罪。" } }, { "doc_id": 120, "seg_id": 13, "translation": { "en": "C.Particulars of the case", "zh-HK": "C.案情" } }, { "doc_id": 120, "seg_id": 14, "translation": { "en": "In his “summing-up” the trial judge provided a summary of the circumstances of the offence in respect of Charge (1) and Charge (3), which is adequate for understanding the facts and background of the present application:", "zh-HK": "原審法官曾在他的《導詞》裡較概括性地指出了控罪（一）和控罪（三）的犯案情節，這對於理解是次申請的事實背景已經足夠：" } }, { "doc_id": 120, "seg_id": 15, "translation": { "en": "“Charge (1) alleged the trafficking of dangerous drugs to Australia on 25 July 2012. The prosecution alleged that the [applicant] conspired with [‘Wong’], [‘Chan B’], [‘Fan’], [‘Chan A’] who was mentioned in the indictment and other persons unknown to traffic heroin from Hong Kong to Australia. The prosecution relied on [‘Wong’s’] evidence that the [applicant] instigated him to arrange for the booking of air tickets to Australia and hotel accommodation for the four persons, and also instructed him and another person to rent and use a hotel room in Hong Kong as a place for concealing the dangerous drugs on their persons. He also promised them rewards. In the end [‘Chan B’] and [‘Fan’] were arrested at Hong Kong Airport while the [applicant] and [‘Wong’] succeeded in bringing dangerous drugs to Australia and passing them to the buyer.", "zh-HK": "「第一項控罪嘅指控係有關發生喺2012年7月25日嘅販運危險藥物去澳洲嘅呢一個行動。控方指 [申請人] 同埋 [‘黃’]、[‘陳乙’]、[‘范’] 同埋控罪書裡面提及嘅 [‘陳甲’]，仲有一啲不知名嘅人士，係串謀從香港販運海洛英去澳洲。控方係倚賴 [‘黃’] 嘅證供，指 [申請人] 係指使佢安排預訂四個人去澳洲嘅機票同埋酒店，並且係吩咐佢同另一個人喺香港租用酒店房間，作為收藏毒品喺身上嘅地方，並且係答應給予佢哋酬勞。最後 [‘陳乙’] 同埋 [‘范’] 喺香港機場被捕，而 [申請人] 同 [‘黃’] 就成功將毒品係帶入澳洲交畀買家。" } }, { "doc_id": 120, "seg_id": 16, "translation": { "en": "……….", "zh-HK": "………." } }, { "doc_id": 120, "seg_id": 17, "translation": { "en": "Charge (3) alleged the trafficking of dangerous drugs to Australia on 23 May 2013. The prosecution alleged that the [applicant] together with [‘Wong’], [‘Lee’] and [‘So’] trafficked heroin [should have been “ice”] from Hong Kong to Australia. Similarly, the prosecution also relied on [‘Wong’s’] evidence, alleging the [applicant] instigated him to arrange for the booking of air tickets to Australia and hotel accommodation for four persons, and instructed him to rent a hotel room in Hong Kong for concealing the dangerous drugs on their persons. He also promised them rewards. In the end, on 23 May 2013, the four of them carried out this plan to traffic in dangerous drugs and were arrested together at Hong Kong Airport.”", "zh-HK": "第三項控罪嘅指控，係有關發生喺2013年5月23日嘅販運危險藥物去澳洲嘅行動。控方指 [申請人] 連同 [‘黃’]、[‘李’] 以及 [‘蘇’] 從香港販運海洛英 [應該是冰] 去澳洲。同樣地，控方係倚賴 [‘黃’] 嘅證供，指 [申請人] 指使佢安排預訂四個人去澳洲嘅機票同埋酒店，並且吩咐佢喺香港租用酒店房間，作為收藏毒品喺身上嘅地方，而亦都答應畀佢哋酬勞，最後四個人喺2013年5月23日當天一齊實行呢個販運毒品嘅計劃，而一起喺香港機場係被拘捕。」" } }, { "doc_id": 120, "seg_id": 18, "translation": { "en": "The “admitted facts” of the case also confirmed:", "zh-HK": "案中的《承認事實》亦確認：" } }, { "doc_id": 120, "seg_id": 19, "translation": { "en": "When ‘Chan B’ and ‘Fan’ were arrested at the airport for Charge (1), 1 kg and 1.02 kg of heroin were respectively found on their persons; at the corresponding time on the same day, the applicant and ‘Wong’ left via the airport and returned to Hong Kong after a few days.", "zh-HK": "因控罪（一）在機場被捕時，‘陳乙’和‘范’被分別搜出身繫1公斤和1.02公斤海洛英；在同一天的相約時間，申請人和‘黃’經機場離開，在幾天後返港。" } }, { "doc_id": 120, "seg_id": 20, "translation": { "en": "When ‘Wong’, ‘Lee’ and ‘So’ were arrested at the airport for Charge (3), 1.84 kg, 2.12 kg and 1.80 kg of “ice” were respectively found on their persons while the applicant was not found to be carrying any contraband on his person. About one week before the incident, ‘Wong’ had gone to the travel agent to book return tickets to Sydney for himself, ‘Lee’, ‘So’ and the applicant.", "zh-HK": "因控罪（三）在機場被捕時，‘黃’、‘李’和‘蘇’被分別搜出身繫1.84公斤、2.12公斤和1.80公斤冰毒而申請人則沒有攜帶任何違禁品；事發前約一星期，‘黃’曾替自己、‘李’、‘蘇’和申請人到旅行公司預定香港至悉尼的來回機票。" } }, { "doc_id": 120, "seg_id": 21, "translation": { "en": "D.Defence’s Version", "zh-HK": "D.辯方說法" } }, { "doc_id": 120, "seg_id": 22, "translation": { "en": "The applicant said after arrest and having been cautioned for the first time, “I didn’t traffic in dangerous drugs. I just knew Ah Chiu [i.e., ‘Wong’], it’s Ah Chiu who booked the ticket for me as I don’t know how to book tickets. I merely thought about going together with Ah Chiu to Australia for fun.”", "zh-HK": "申請人在被捕及首次警誡下說：「我冇販毒。我只係識得阿超 [即‘黃’]，係阿超幫我訂機票，因為我唔識訂機票。我只係諗住同阿超一齊去澳洲玩。」" } }, { "doc_id": 120, "seg_id": 23, "translation": { "en": "He said further in the subsequent cautioned video interview: He had known [Ah Chiu] for one and a half years and they had seen each other during that time. At the time of the incident, he was preparing to tour Australia with a friend who was working there. Ah Chiu, who had helped him book tickets previously agreed to accompany him. On that day, he went alone to the airport. It was at the airport that he saw Ah Chiu and the other man and woman who were also involved in the case. He did not know the man and the woman. They had never met before. On Ah Chiu’s advice he went with the group to check in.", "zh-HK": "他在其後的錄影警誡會面進一步表示：他認識了「阿超」一年半，期間有見面；事發時他正準備前往澳洲找在那邊工作的朋友遊玩；他拜託之前也幫過他的阿超訂機票，阿超表示會同行；當日他是獨自一人去機場；他在機場才見到阿超和涉案的另外一男一女；他不認識這一男一女，雙方之前從未見過面；他是聽從阿超的提議跟大家一起到櫃檯辦理登機手續。" } }, { "doc_id": 120, "seg_id": 24, "translation": { "en": "The two cautioned statements above were admitted without any objection from the defence.", "zh-HK": "上述兩份警誡供詞在辯方沒有爭議下呈堂。" } }, { "doc_id": 120, "seg_id": 25, "translation": { "en": "Although the applicant chose not to give evidence or call any witnesses, his defence was obviously that he had nothing to do with trafficking in dangerous drugs and he had no knowledge of the incident.", "zh-HK": "雖然申請人選擇不作供和不傳召證人，他的辯護理由卻明顯是：他和運毒的事無關，他對事件毫不知情。" } }, { "doc_id": 120, "seg_id": 26, "translation": { "en": "E.Core Issues", "zh-HK": "E.核心議題" } }, { "doc_id": 120, "seg_id": 27, "translation": { "en": "After ‘Lee’ changed his mind, ‘Wong’ became the only accomplice-turned prosecution witness who was willing to offer evidence against the applicant in respect of Charge (1) and Charge (3). His importance can be clearly seen above at paragraph 7 which quoted one part of the “summing-up”. Besides, the trial judge emphasised many times in other parts of the “summing-up” that the key to this case hinged on the reliability of ‘Wong’s’ evidence. For example, he said:", "zh-HK": "在‘李’改變初衷之後，‘黃’成為唯一一位願意就控罪（一）和控罪（三）頂證申請人的共犯轉控方證人，他的重要性從上文第7段所節錄的部分《導詞》已清楚可見。此外，原審法官在《導詞》的其他部分亦多次強調，‘黃’的證供可信與否，是本案的關鍵。例如，他說：" } }, { "doc_id": 120, "seg_id": 28, "translation": { "en": "“The key witness is the first witness Wong Chi Chiu. The prosecution mainly relies on his evidence to prove that the defendant committed Charge (1) and Charge (3). Without Wong’s evidence, the prosecution has no sufficient evidence to prove that the defendant committed any of the charges.”", "zh-HK": "「關鍵嘅證人就係第一證人黃志超。控方係主要依賴佢嘅證供嚟到證明被告人係干犯咗第一項同埋第三項控罪嘅。如果撇除咗黃志超嘅證供，控方係冇足夠嘅證據去證明被告人干犯咗任何一項控罪嘅。」" } }, { "doc_id": 120, "seg_id": 29, "translation": { "en": "Following this, the trial judge also reminded the jury that at the time of both charges, the applicant was travelling by air (or about to travel by air) with ‘Wong’ to Australia, and that on one of the trips the tickets were booked by ‘Wong’ for all persons involved in the case, however, the suspicious circumstances themselves were insufficient to convict the applicant, the jury had to be satisfied with ‘Wong’s’ evidence in order to find the applicant guilty of the charge.", "zh-HK": "隨後，原審法官又提醒陪審團，雖然申請人在兩罪案發時皆與‘黃’一同飛到（或準備飛到）澳洲，而且其中一次旅程的機票也是‘黃’替所有涉案人士所訂購，但這個可疑的情況本身卻不足以把申請人定罪，陪審團還是要確信‘黃’的證供才能裁定申請人有罪。" } }, { "doc_id": 120, "seg_id": 30, "translation": { "en": "F.‘Wong’s’ Evidence", "zh-HK": "F.‘黃’的證供" } }, { "doc_id": 120, "seg_id": 31, "translation": { "en": "This heading does not refer to ‘Wong’s’ description of the roles and actions of the persons involved in this case, including the applicant. As mentioned above, such details do not help in the determination of this application.", "zh-HK": "這個標題所指的不是‘黃’對包括申請人在內的涉案者所曾擔當的角色和作出的行為的描述。正如上文提到，這方面的細節對於處理是次申請沒有幫助。" } }, { "doc_id": 120, "seg_id": 32, "translation": { "en": "The focus here is on certain procedures and contents at the time ‘Wong’ gave evidence. We now list them below.", "zh-HK": "這裡聚焦的是‘黃’作供時的某些程序和內容，現在由本庭臚列如下。" } }, { "doc_id": 120, "seg_id": 33, "translation": { "en": "The prosecution did not know at the start of the trial that ‘Lee’ would change his mind and be unwilling to give evidence. Counsel on fiat mentioned in his opening submission in some detail that he anticipated what the contents of ‘Wong’s’ and ‘Lee’s’ evidence would be, including ‘Lee’s’ allegation that after the arrest, the applicant mentioned in the detention room at the airport providing $300,000 “settlement money” as consideration for ‘Lee’ not to testify that the applicant was the “mastermind”.", "zh-HK": "控方在案件開審時不知道‘李’會改變主意不肯作供，外聘主控官在開案陳詞裡詳細提到他預期‘黃’、‘李’二人的證供將會有甚麼內容，這包括‘李’指申請人被捕後於機場的扣留室內提出以30萬元「安家費」作為換取‘李’不把申請人供出和指證他為「主腦」的代價。" } }, { "doc_id": 120, "seg_id": 34, "translation": { "en": "Counsel on fiat did not mention in his opening submission that ‘Wong’ was making the same allegation. Until that stage, ‘Wong’ as prosecution witness had never made the same or similar claim in his written statement.", "zh-HK": "外聘主控官沒有在開案時提到‘黃’有同一指控。直至那個階段為止，作為控方證人的‘黃’從未在他的筆錄裡作過同一或類似的聲稱。" } }, { "doc_id": 120, "seg_id": 35, "translation": { "en": "According to the original arrangement, ‘Wong’ would appear in court before ‘Lee’. However, ‘Wong’ indicated after affirming to give evidence that he had new evidence, so that his testimony had to be adjourned for him to give a new written statement (‘new written statement’).", "zh-HK": "按照原本的安排，‘黃’要先於‘李’出庭，不過‘黃’在宣誓作供後即表示自己有新證據，以致他的證供需押後，讓他進行新一份的筆錄（‘新筆錄’）。" } }, { "doc_id": 120, "seg_id": 36, "translation": { "en": "The prosecution and defence both agreed to the trial judge’s suggestion to let ‘Lee’ into the witness box pending ‘Wong’s’ ‘new written statement’. However, as mentioned above, ‘Lee’ refused to give evidence and the trial had to be adjourned.", "zh-HK": "在等候‘黃’的‘新筆錄’期間，控辯雙方同意原審法官的建議讓‘李’先上證人台。然而，正如上文所述，‘李’拒絕作供而審訊需繼續押後。" } }, { "doc_id": 120, "seg_id": 37, "translation": { "en": "This Court does not have a copy of the ‘new written statement’, however, from the conversation between the prosecution, defence and the trial judge, the ‘new written statement’ mentioned that ‘Wong’ had received several [chits] (i.e., chits used in communication by detainees) sent by the applicant showing that the applicant had attempted to contact and influence ‘Wong’ in relation to his giving evidence while the case was pending trial .", "zh-HK": "本庭沒有‘新筆錄’的副本。但從控辯雙方和原審法官的對話可知，‘新筆錄’提到‘黃’曾接獲數張由申請人發來的「chits」（即在押人士用作通訊的所謂「朵紙」），可顯示申請人於候審期間試圖接觸和影響‘黃’作證。" } }, { "doc_id": 120, "seg_id": 38, "translation": { "en": "Upon enquiry by the trial judge, counsel on fiat indicated that he would not rely on the contents of the ‘new written statement’ as evidence. Defence counsel also indicated that unless ‘Wong’ brought up the relevant contents in examination-in-chief, the defence would not touch on the topic.", "zh-HK": "外聘主控官在原審法官的垂詢下表示他不會依賴‘新筆錄’的內容作證據。辯方大律師亦表示，除非‘黃’在主問中主動提到有關的內容，否則辯方也不會無故觸及。" } }, { "doc_id": 120, "seg_id": 39, "translation": { "en": "‘Wong’ resumed giving evidence. He did not mention the applicant’s attempt to contact him in detention. Defence counsel at the beginning of cross-examination only focused on the difference between the evidence given by ‘Wong’ in court and in his written statement.", "zh-HK": "‘黃’恢復作供，他在主問時沒有提及申請人在獄中試圖接觸他，辯方大律師在盤問的初段亦只是集中於‘黃’庭上的證供與他舊筆錄之間的差異。" } }, { "doc_id": 120, "seg_id": 40, "translation": { "en": "At a certain stage, defence counsel suddenly asked ‘Wong’ if he had, out of suspicion of being betrayed, made attempts to “communicate” in writing with the applicant. ‘Wong’ replied that, “It’s he who wrote to me”.", "zh-HK": "及至某個階段，辯方大律師突然問‘黃’是否曾因懷疑自己被出賣而嘗試用文字和申請人「溝通」。‘黃’答「係佢主動寫畀我」。" } }, { "doc_id": 120, "seg_id": 41, "translation": { "en": "In order to prove that ‘Wong’ was the initiator of these communications, defence counsel, in the following twenty pages of cross-examination, questioned ‘Wong’ on the fifteen pages of [chits] (defence exhibits D1 to D5) one by one by reading out all of the contents therein.", "zh-HK": "為了證明‘黃’才是這些通訊的發起人，辯方大律師在緊接著的二十頁盤問裡把十五張「朵紙」（辯方證物D1至D15）逐張盤問‘黃’，盤問的方式是把裡面的內容全部讀出。" } }, { "doc_id": 120, "seg_id": 42, "translation": { "en": "D1 to D15 clearly showed that the applicant had knowledge of Charge (1) and Charge (3) in which ‘Wong’ was involved. It was most prominent in D1 (i.e, the first “chit” of the series of communications started by ‘Wong’). ‘Wong’ also stated with certainty during re-examination that he was referring to the two offences in D1:", "zh-HK": "D1至D15明顯顯示申請人對‘黃’所涉及的控罪（一）和控罪（三）知情。這個情況在D1（即‘黃’開始這一連串通訊的第一張「朵紙」）最為明顯。‘黃’在覆問時亦明確表示他在D1所指的是該兩項罪行：" } }, { "doc_id": 120, "seg_id": 43, "translation": { "en": "“I want to ask you, what wrong have I done to you? I asked myself I have not treated you badly, you requited kindness with ingratitude, why do you have to set me up? Earlier Fai Tau’s case was also you, only you clearly knew in advance the time of the flight of the two cases. Trips as secretive as these could leak, and you thought you were clean, just listened to the police and you would be alright, okay I have waited almost two years now, waited till you were in, you have to face probably several trafficking [charges] and 26-30 years of imprisonment, an eye for an eye, a tooth for a tooth, taking so much informer fee to feed the rest of your life……[ellipsis] I am telling you, you have to account to and give me an explanation, or come over to this side of mine and chat, wait for your reply?”", "zh-HK": "「我要問你，我有乜嘢對你唔住？自問對你唔差，你可以恩將仇報點解要擺我呀？先前輝頭嗰單都係你，只有你清楚預先知道兩單嘢係幾時起飛，咁秘密嘅行程可以爆得，仲有你以為身上冇嘢，聽啲差人話就可以冇事，好嘞家陣我足足等左接近兩年，等到你入嚟，你要面對嘅相信係幾條販運同26–30年刑期，你點嚟我點去，收咁多線人費食過世咩 …… [省略] 我同你講你必須要交代同畀個說法解釋我，再唔係就過嚟我呢邊傾偈，等你回覆？」" } }, { "doc_id": 120, "seg_id": 44, "translation": { "en": "By the use of “chits”, ‘Wong’ repeatedly requested to see the applicant, the purpose of which was clearly to seek by doing a certain act or not doing a certain act, in exchange for the applicant providing certain things – although ‘Wong’ did not say it clearly what they were. D3 was a very good example:", "zh-HK": "‘黃’用「朵紙」再三要求和申請人見面，目的明顯是想藉著某個作為或不作為來換取申請人提供某些東西 – 雖然兩者是甚麼‘黃’都沒有言明。D3就是一個很好的例子：" } }, { "doc_id": 120, "seg_id": 45, "translation": { "en": "“I have found out a long time ago that you are to attend Eastern Court No. 7 on the 24th, there are two outcomes, either adjourned or committed to the High Court, I have been taking notice of your movements, if you change your status after attending Eastern 7, you will come to the old wing, you will eat privately provided meals at Long Ching Hin, at the old wing you can ask the staff (if you want) to go to DM5 where a friend, Fei Chung, told me that you are willing to talk to me; I now guarantee I will not threaten your life or safety. If further adjourned, the quickest way is to write a note to inform me and I’ll then instruct you what to do. I emphasise again I will attend High Court on 29 May with another co-accused, by that time we will apply to the court to carry out the second part of our plan, which will be even more to your disadvantage, I am not scaring you, if you want to talk, it depends on your fate and sincerity, Wa Tsai, Sing Tsai and Wong Mei San have received my letter, I have already explained clearly in full. Kid, I lost the first part to you, now that you have come in, I won the latter part, if you really want to talk we can meet and talk, whatever the situation is, there is a way to resolve it, the foremost is to leave this damn place. Hope you understand after I go to court I will move and do accordingly, each does his job for his master, first friends then enemies, when everything is fixed, there’s no turning back, that’s what I want to say, I don’t have to pretend in front of you! Think over carefully, I don’t give a damn if you reply me or not!!”", "zh-HK": "「我老早就查到你廿四號上東區七庭，結果有兩個，押後或轉去高院，我一路有留意你動向，若上完東七轉身份，你就會過嚟舊翼，你食私飯郎晴軒，舊翼你大可要求職員落DM5有朋友，肥聰話我知你肯同我傾，現在我亦保証唔會對你有任何人生安全或威脅。如果仲押後，最快方法就立即寫字條通知我，我再教你點做。我再強調我同我另一同案將於5月廿九日上高院，到時我哋嘅第二部份計劃就會向法庭申請實行，呢部份對你更不利，唔係嚇你，你若想傾，就睇你自己造化同誠意，華仔星仔同黃美珊亦已收到我嘅信，我完全交待清楚。細路，雖然我輸頭彩俾你，但你入咗嚟，我贏番尾彩，有心傾就見面再詳談，萬大事，總有解決方案，一切大前題就係離開呢個鬼地方。希望你明白我上庭後就照行照做，各為其主，相識在前得失在後，一切落實，絕無彎轉，我想表達就係咁多，亦無須扮你嘢！你自己三思考慮，覆唔覆我都唔在乎！！」" } }, { "doc_id": 120, "seg_id": 46, "translation": { "en": "As defence counsel said, the applicant was passive. However, in the seven “chits” (D5, D7, D9, D10, D12, D13, D15) in reply to the applicant (sic), there was not one in which he rebutted ‘Wong’s’ allegation, or asked ‘Wong’ what he was referring to. On the contrary, the questions which the applicant asked repeatedly were: how he could meet with ‘Wong’, why ‘Wong’ could not be seen at the arranged place, if ‘Wong’ could give him a bit more time and what ‘Wong’ wanted him to do etc.", "zh-HK": "正如辯方大律師所說，申請人是被動的。然而，他在回覆申請人的七張「朵紙」（D5、D7、D9、D10、D12、D13、D15）當中沒有一張反駁過‘黃’的指控，又或反問過‘黃’所指的是何事。相反，申請人不斷追問的是：怎樣才能和‘黃’見上面、為何在約定的地方見不到‘黃’、‘黃’能否多給他一點時間，以及‘黃’究竟想他怎樣等問題。" } }, { "doc_id": 120, "seg_id": 47, "translation": { "en": "Confronted with D1 to D15, ‘Wong’ eventually admitted that the communication was started by him, however, he still prevaricated about how and what he had been trying to achieve. It was only when defence counsel pointed out it was money he wanted that ‘Wong’ admitted he “had thought about it”, but at the same time he denied obtaining money from the applicant in detention. On the contrary, he said after he and the applicant were arrested and everyone was detained at the airport police station, the applicant had “told us not to testify against him, to say it’s of our own volition, for money, at the beginning that was said rather tentatively.”", "zh-HK": "面對D1至D15，‘黃’終於承認通訊是由他開始的。但對於想憑甚麼手段達到甚麼目的，他卻仍然支吾以對。及至辯方大律師直指他是想要錢，‘黃’才承認「有諗過」，但他同時又否認曾在獄中當面向申請人索取金錢。相反，他說，他和申請人被捕之後，各人被扣押於機場警署之時，申請人曾經「叫我哋唔好指證佢，話自願，因為要錢，當初係好初步咁講。」" } }, { "doc_id": 120, "seg_id": 48, "translation": { "en": "The last sentence in the above paragraph was followed up and clarified by counsel on fiat in re-examination. ‘Wong’ replied to that when the applicant was in the detention room at the airport police station he mentioned giving him $300,000. He said the applicant did not explain “how it was to be paid” and it did not eventually work out.", "zh-HK": "上述最後一句話，被外聘主控官在覆問時跟進和澄清。‘黃’回答外聘主控官說，當時申請人是在機場警署裡的羈留室提出給錢給他的，數目是三十萬。他說，申請人沒有解釋「點畀法」，後來也沒有成事。" } }, { "doc_id": 120, "seg_id": 49, "translation": { "en": "G.How The Trial Judge Handled It", "zh-HK": "G.原審法官的處理" } }, { "doc_id": 120, "seg_id": 50, "translation": { "en": "Regarding ‘Lee’s’ absence, the trial judge explained to the jury at the very beginning before ‘Wong’ resumed giving evidence:", "zh-HK": "對於‘李’的缺席，原審法官最初是這樣向陪審團解釋的，當時是在‘黃’重新開始作供之前：" } }, { "doc_id": 120, "seg_id": 51, "translation": { "en": "“Good morning everyone. This morning we will not hear any evidence. In the afternoon we will start to hear the evidence of the first witness Mr Wong. As regards the second witness who was originally summoned yesterday, the prosecution has now decided not to summon him. In that case as regards the second charge, we mm --- you don’t have to concern yourself with it, the second charge, as the chief witness is the second witness, in the absence of the second witness’s evidence, there’s no way to prove the second charge, therefore you don’t have to pay attention to the second charge. At this stage I would like to mention briefly to you, that is you are to consider each charge separately, as such, that is as regards the second charge, it should not be a matter for consideration when you consider about the first, the third charges. Yes, understand? Right, we will only start to hear the evidence of the first witness in the afternoon, I do apologise about wasting your time again but this morning you can take a rest earlier, in the afternoon after finishing -- having lunch, we, I shall then start, at half past two to hear the second – the first witness’s evidence, thank you.”", "zh-HK": "「早晨，咁多位。今朝早我哋就都係唔會係聽證供住嘅，咁但係我哋就會係下晝開始就會聽第一證人黃先生嗰個證供㗎喇。咁至於琴日原先傳召嘅第二證人，就而家控方就係決定唔傳召佢㗎喇，咁變咗就住第二項控罪，我哋唔--大家唔需要關注㗎喇，第二項控罪，因為主要證人都係第二證人喇，咁如果冇咗第二證人嘅證供，就唔會證明到有第二項控罪嘅，咁所以大家嗰個注意力毋須要係放喺第二項控罪嗰度。亦都喺呢個階段都同大家略略提一提，即係各項控罪大家應該分開考慮嘅，咁所以，即係就住第二項控罪嗰個情況，大家唔應該係作為係考慮第一、第三項控罪嗰個時候去考慮。係，明白嘛？好，咁我哋就下晝先至開始係會聽第一證人嗰個證供，咁亦都係唔好意思又嘥咗大家嘅時間，咁但係今朝大家可以早啲休息，咁就係下晝係完咗--食完晏，我哋我至開始，兩點半先至聽第二--第一證人嗰個證供，唔該晒。」" } }, { "doc_id": 120, "seg_id": 52, "translation": { "en": "And at the stage of giving the “summing-up”, the trial judge then said:", "zh-HK": "及至作《導詞》階段，原審法官又說：" } }, { "doc_id": 120, "seg_id": 53, "translation": { "en": "“You probably remember, at the start of the trial the defendant was facing a total of three charges, but subsequently I reminded you that there’s no need to deal with the second charge in this trial. I now remind you again, you don’t have to reach any verdict in respect of the second charge, and you don’t have to be concerned about why the prosecution does not get on with calling evidence regarding the second charge and why the original second witness Mr Lee does not give evidence in the present trial. You don’t have to care about this. You don’t have to speculate about these things, they are not in any way relevant to whether the defendant committed the first and third charges.”", "zh-HK": "「你哋應該記得，喺本案開始嘅時候被告人係面對總共三項控罪，但係後來我已經提醒咗你哋，毋須喺呢個審訊中處理第二項控罪。而家我再提醒你哋，你哋毋須就第二項控罪達成任何嘅裁決，而你哋亦都毋須理會控方唔繼續就第二項舉證嘅原因，以及原先嘅第二證人李先生點解冇喺本案中作供，你哋亦都唔需要理會，你哋唔好就呢啲嘅事情作出任何嘅揣測，呢啲事情對於你哋考慮被告人有冇干犯第一同埋第三項控罪係完全沒有相關性嘅。」" } }, { "doc_id": 120, "seg_id": 54, "translation": { "en": "We shall come to the question of “chits”. It can be seen from the foregoing that the contents of D1 to D15 and ‘Wong’s’ explanation (if any) on them were all disclosed to the jury. It undoubtedly impelled counsel on fiat to refer to these “chits” in his closing submission. For example, he said, if the applicant had no knowledge of ‘Wong’s’ allegation, why would he ask ‘Wong’ in D15 to name the terms?", "zh-HK": "接著是「朵紙」的問題。從上文可見，D1至D15的內容，以及‘黃’對這些內容的解釋（若有），都完全暴露於陪審團席前。這無疑促使了外聘主控官在結案陳詞中對這些「朵紙」的引用。例如，他說：如果申請人對‘黃’的指控真的一無所知，他為何會在D15叫‘黃’開條件？" } }, { "doc_id": 120, "seg_id": 55, "translation": { "en": "However, counsel on fiat’s submission was stopped by the trial judge who was of the view that ‘Wong’s’ allegations in the “chits” were ‘Wong’s’ ‘previous consistent statements’ and could not be used as evidence. He considered that the applicant having knowledge of the two charges was not the only irresistible inference from the fact that the applicant did not rebut ‘Wong’. The trial judge therefore decided to direct the jury forthwith as follows:", "zh-HK": "然而，外聘主控官的陳詞卻被原審法官截停。原審法官認為，‘黃’在「朵紙」中的指稱，是‘黃’的‘一致前述’（previous consistent statements），不能用作證據。他認為，申請人對兩項控罪知情，也並非申請人沒有反駁‘黃’這個事實的唯一合理推論。因此，原審法官決定即時指示陪審團：" } }, { "doc_id": 120, "seg_id": 56, "translation": { "en": "“Yes, yes. Before you listen to Mr Luk’s submission, I would like to draw your attention to some matters Mr Leung mentioned just now in his submission, including those – the evidence in respect of the chits, sending the chits, that is in D1 to D15. Mr Leung mentioned that it reflected the fact that the defendant had knowledge. I invite you not to make such an inference, not to make such an inference from the chits, as it cannot be inferred from the contents of the chits that the defendant has knowledge. Of course this would not affect your consideration of other evidence, that is if you can draw such a conclusion from other evidence, it would not be affected, but this inference must not be made from the contents of the chits, understand? Yes.”", "zh-HK": "「係，係。各位喺聽陸大律師嗰個陳詞之前，我亦都想大家注意有部分頭先梁大律師陳詞裡面所提及嘅一啲事情，咁就包括就係就住嗰啲紙仔，傳紙仔嗰啲--嗰啲證據，即係D1至到D15嗰度，咁就梁大律師提及過話關於係可以反映到被告人係知情呢一樣嘢，我就係請大家係不要作出呢一個嘅推測，不要喺嗰啲紙仔嘅內容裡面係作出呢一個推測，因為係不可以係憑嗰啲紙仔嘅內容係嚟到係引申到被告人當時係知情。咁當然唔影響你哋考慮其他嘅證據嘅，即係如果喺其他嘅證據裡面你係作出咁嘅結論，係唔影響嘅，但係就不能夠喺嗰個紙仔裡面嗰啲內容係去作出呢一個引申，明白嘛？係。」" } }, { "doc_id": 120, "seg_id": 57, "translation": { "en": "Later the trial judge in the “summing-up” also said:", "zh-HK": "後來，原審法官在《導詞》裡又說：" } }, { "doc_id": 120, "seg_id": 58, "translation": { "en": "“Members of the jury, you will remember Mr Luk in cross-examination asked Wong Chi Chiu if he had taken the initiative to communicate with the defendant in detention. Wong Chi Chiu said he hadn’t, that it’s the defendant who had taken the initiative. However, when Mr Luk produced to him Wong Chi Chiu’s notes sent to the defendant, Wong Chi Chiu could not but admit that he had taken the initiative to communicate with the defendant. Members of the jury, you can read the notes for yourselves, that is the contents of P1 to P15, obviously Wong Chi Chiu was hoping to be able to negotiate with the defendant but Wong Chi Chiu equivocated when being asked what the plans, proposals referred to in the notes were. Mr Luk’s observation was that Wong Chi Chiu obviously has something to hide. I leave it for you to judge.”", "zh-HK": "「各位陪審員，你哋會記得陸大律師喺盤問嘅時候呢，問黃志超喺被羈留嘅時候有冇主動同被告人書面通訊，黃志超係話冇嘅，只係被告人係作主動，但係當陸大律師向佢出示黃志超發畀被告人嘅便箋嘅時候，黃志超就不得不承認曾經係主動同被告人溝通。各位陪審員，你哋可以自行閱讀嗰啲便箋，即係證物P1至到P15嘅內容，明顯地，黃志超係希望能夠同被告人係商討去達到一啲目的，但係黃志超當被問及便箋中所指嗰啲計劃、方案等等係咩嘢嘅時候就含糊其詞。陸大律師嘅觀察就係明顯地，黃志超係有所隱瞞，咁大家可以判斷。」" } }, { "doc_id": 120, "seg_id": 59, "translation": { "en": "Finally, in relation to the “chits”, is the question of whether the applicant had mentioned giving ‘Wong’ hush money as early as the time of arrest. As this allegation was not recorded in ‘Wong’s’ old written statement and ‘Wong’s’ explanation on this was that police “told me not to write this down”, therefore the trial judge in the “summing- up” directed the jury in this way and nothing further:", "zh-HK": "最後是和「朵紙」有關的、申請人是否早於被捕時便已提出給‘黃’掩口費的問題。由於這個指稱並未記錄於‘黃’的舊筆錄之內，而‘黃’對此的解釋是警察「叫我唔好寫落去」，所以原審法官在《導詞》內是這樣指示陪審團的，此外再無其他：" } }, { "doc_id": 120, "seg_id": 60, "translation": { "en": "“Members of the jury, you will remember that Wong Chi Chiu said the defendant had mentioned in the detention room at the airport police station giving him $300,000 as a reward for not informing on him, but the police told him not to put it in the statement, and the police officer also advised him to write down “unknown” for the telephone number he provided. Wong Chi Chiu’s version was totally denied by the fourth witness the detective in his evidence, Mr Luk accused Wong Chi Chiu of lying, you can judge whether he was lying.”", "zh-HK": "「各位陪審員，你哋都會記得黃志超話被告人曾經喺機場警署羈留室向佢提出畀$300,000佢喇，係作為唔向警方告發佢嘅報酬，但係警察就叫佢唔好寫喺口供上面，而嗰個警察亦都建議佢喺佢提供嘅一啲人名嘅電話號碼一欄係寫上『不詳』。黃志超嘅呢啲說法呢，第四證人探員係喺佢嘅證供係全部都否認，陸大律師指黃志超係講大話，咁你哋亦都可以作出判斷究竟佢係咪講大話。」" } }, { "doc_id": 120, "seg_id": 61, "translation": { "en": "H.The Main Complaints made by the Applicant", "zh-HK": "H.申請人的主要投訴" } }, { "doc_id": 120, "seg_id": 62, "translation": { "en": "Mr Wong who represented the applicant only at the present stage put forward four perfected grounds of appeal and principally relied on appeal ground (1), that is, there were two material irregularities in the trial.", "zh-HK": "在這個階段才代表申請人的王大律師提出了四項具體上訴理由，其中他最為依賴的是上訴理由（一）即本案原審有兩個‘重大不當之處’（material irregularity）。" } }, { "doc_id": 120, "seg_id": 63, "translation": { "en": "Mr Wong was of the view that the applicant was alleged to have offered ‘Wong’ $300,000 on his own initiative (see para. 28 and 29 above), which was an “uncharged act”, but the trial judge did not consider not allowing it to be adduced as evidence, nor did he direct the jury how to deal with an “uncharged act”.", "zh-HK": "王大律師認為，申請人據稱主動提出要給‘黃’三十萬元（見上文第28和29段），是一個‘未被起訴行為’（uncharged act），但原審法官卻完全沒有考慮不讓它呈證及完全沒有指示陪審團該如何處理‘未被起訴行為’的問題。" } }, { "doc_id": 120, "seg_id": 64, "translation": { "en": "Mr Wong pointed out that the claim of hush money by ‘Wong’ coincided with ‘Lee’s’ version (see para. 16 above), but the trial judge only directed on ‘Lee’s’ absence and not giving evidence (see para. 30 and 31 above). Mr Wong opined that the judge’s direction was insufficient to eliminate the bias the jury might have towards the coincidence of the ‘Wong’ and ‘Lee’ versions.", "zh-HK": "王大律師指出，‘黃’掩口費的聲稱，和‘李’的說法吻合（見上文第16段），可是原審法官卻只就‘李’缺席不作供的事作過指引（見上文第30和31段）。王大律師認為這個指引不足以消弭‘黃’、‘李’二人說法吻合對陪審團所可能造成的偏見。" } }, { "doc_id": 120, "seg_id": 65, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 120, "seg_id": 66, "translation": { "en": "It was alleged that the applicant offered on his own initiative hush money to ‘Wong’, the act itself is not truly an “uncharged act” as such in law. The offer of hush money (perverting the course of justice) and the issue which is to be tried in the present case (trafficking in a dangerous drug) are entirely different in substance. The principles for deciding whether evidence of the “uncharged act” should be adduced and on how to direct the jury after such evidence has been adduced (see HKSAR v Kwok Hing Tony [2010] 3 HKLRD 761) do not apply in this case.", "zh-HK": "申請人據稱主動提出要給‘黃’掩口費，並不真正屬於法律上的‘未被起訴行為’。掩口費的建議（妨礙司法公正）和本案要審理的議題（販毒），在本質上是完全不同的。決定是否應讓‘未被起訴行為’的證據呈證及呈證後應如何指引陪審團的原則（見香港特別行政區訴郭慶 [2010] 3 HKLRD 761），在本案並不適用。" } }, { "doc_id": 120, "seg_id": 67, "translation": { "en": "If this relatively fundamental question is put aside for the time being (see paras. 45 to 49 below), the Court is of the view that the alleged offer of hush money itself is evidence which has probative value and is admissible. The reason is that if the applicant had not trafficked in dangerous drugs, why would he offer money for ‘Wong’ not to testify against him?", "zh-HK": "如果暫時撇下某個較基本的問題不談（見下文第45至49段），本庭倒認為那個據稱是掩口費的建議，是一項既具舉證價值又能呈堂的證據。理由是，如果申請人沒有販毒，他又為何會把金錢用作換取‘黃’不指證他的代價？" } }, { "doc_id": 120, "seg_id": 68, "translation": { "en": "However, to err on the side of caution, the Court would give directions to the jury in respect of certain “post-offence conduct”. The contents of the direction normally are: The jury has to be sure that the defendant carried out the relevant act, and that the act was not carried out for reasons unrelated to the commission of crime, before the jury can regard the act as evidence in support of the allegation made by the prosecution.", "zh-HK": "然而，為求謹慎，法庭是會就某些‘案後行為’（post-offence conduct）向陪審團發出指引的。指引的常見內容是：陪審團既要肯定被告人作出了相關行為，又要肯定該行為並非出於與犯罪無關的理由，陪審團才可以把該行為視為能支持控方指控的證據。" } }, { "doc_id": 120, "seg_id": 69, "translation": { "en": "Directions on “flight”, “lies” and “concealment” are typical directions of this kind. Having said that, it does not mean that the judge is only required to give directions in respect of the several established scenarios. Quite on the contrary, the judge does not necessarily have to give directions to the jury for any remotely comparable situations. It depends on the circumstances of each individual case. After all, the aim of this kind of direction is to remind the jury to be cautious about looking at matters superficially.", "zh-HK": "有關‘潛逃’（flight）、‘撒謊’（lies）和‘滅證’（concealment）的指引，是這一類指引的典型。這樣說並不代表法官只須就某幾個既定的情況作指引。反過來，法官也不一定須要在任何稍微可作類比的情況指引陪審團。這要視乎個別案件本身的案情。始終，這類指引的目的只是要陪審團小心、不要只看事情的表面。" } }, { "doc_id": 120, "seg_id": 70, "translation": { "en": "In the present case, it was not even disputed by counsel on fiat that ‘Wong’s’ evidence was not to be believed in its entirety. In his closing submission, he pointed out that ‘Wong’s’ words were “self-contradictory” and that “he was lying”. However, ‘Wong’ was found to be “lying” only when the “chits” revealed that he was the one who took the initiative to contact the applicant. As to what his purpose was and whether he was trying to get money from the applicant, ‘Wong’s’ final version was that it was because in the detention room at the airport police station the latter offered to pay hush money to him. In the other words, he was just thinking of following up on the applicant’s offer.", "zh-HK": "在本案，‘黃’的證供不可盡信，是連外聘主控官都不爭議的事實。他在結案陳詞中就直指‘黃’「前言不對後語」和「講大話」。然而，‘黃’被揭穿「講大話」，是因為「朵紙」暴露了他才是主動接觸申請人的一方。至於他的目的何在、是否想向申請人要錢，‘黃’最終的說法還是因為後者在機場警署羈留室提出要給他掩口費。換言之，他只是想跟進申請人的提議罷了。" } }, { "doc_id": 120, "seg_id": 71, "translation": { "en": "That being the case, the Court is of the view that there was a need for the trial judge to give the jury the two-pronged direction mentioned in para. 41 above. Apart from having to decide the truthfulness of ‘Wong’s’ claim, the jury had to consider if the applicant might have offered ‘Wong’ money out of fear of the latter framing him, the sort of reason which had nothing to do with the commission of crime. No matter how obvious the trial judge might have thought the answers to the two questions above were, he still had a duty to remind the jury but failed to do so.", "zh-HK": "既然是這樣，本庭認為原審法官實有須要向陪審團發出上文第41段所提到的二元指引。除了‘黃’的聲稱孰真孰假之外，陪審團還須要考慮申請人是否有例如恐防‘黃’會誣告他等與犯罪無關的理由而提出給後者金錢。無論原審法官本身認為上述兩個問題的答案如何明顯也好，他都有責任提醒陪審團，可是他卻未有做到。" } }, { "doc_id": 120, "seg_id": 72, "translation": { "en": "After discussing the issues above, the Court has to point out that it is more concerned that the trial judge ought not have allowed matters to develop to such a state in the first place. As mentioned above, at the start of the trial the prosecution did not know that ‘Lee’ would change his mind by not giving evidence, counsel on fiat therefore gave the jury in advance the evidence of ‘Wong’ and ‘Lee’ in detail. Regarding Charge (3) in which both ‘Wong’ and ‘Lee’ participated, it was like inculcating the jury twice with the allegation that the applicant was guilty.", "zh-HK": "在討論過上述的議題之後，本庭須指出，本庭更關注的是原審法官根本便不應該讓事情發展到如此地步。正如上文提到，控方在開審時不知道‘李’會改變主意不肯作供，所以外聘主控官詳細地向陪審團預告了‘黃’和‘李’的證詞。對於‘黃’、‘李’二人都有份參與的控罪（三）而言，那就是先向陪審團灌輸了兩輪申請人有罪的指控。" } }, { "doc_id": 120, "seg_id": 73, "translation": { "en": "Regarding the matter of information prejudicing the interest of the defence being placed before the jury, the Court generally has three ways of handling it. The first would be not to mention it anymore and let things pass in the course of the trial. The second would be to give a clear and strong direction to the jury to disregard such material. The third would be to discharge the jury. The choice would be a matter within the discretion of the judge. Depending on circumstances of each and every case, the appellate court would judge according to the issues involved, the impact of the prejudicial information, the way and process of disclosure of the information, the degree of prejudice to the interests of the defence and the remedy available by way of the judge giving directions, whether the decision of the judge refusing to discharge the jury was appropriate. But the appellate court would not readily interfere (see R v Lawson [2007] 1 Cr App R 20).", "zh-HK": "對於有損辯方利益的資料被誤置於陪審團席前，法庭一般有三個做法。一是絕口不提，讓事情隨著審訊的展開不了了之；二是清楚有力地指示陪審團要把相關資料從心中剔除；三是解散陪審團：如何選擇則為法官的酌情權。視乎個別案件的具體情況，上訴法庭會根據涉案議題、損害性資料的震撼度、相關資料被披露的方式與過程、辯方利益受到損害的程度，以及法官用指引所能提供的補救等因素來衡量法官拒絕解散陪審團的決定是否恰當，但上訴法庭不會輕易干預（見 R v Lawson [2007] 1 Cr App R 20）。" } }, { "doc_id": 120, "seg_id": 74, "translation": { "en": "In the present case, unfortunately, neither the trial judge nor the prosecution or defence noticed that ‘Lee’s’ version had already been disclosed. After ‘Lee’ had left the court, none of the parties raised the matter of or applied for the discharge of the jury. The trial judge’s direction on ‘Lee’ no longer giving evidence was just telling the jury not to speculate but Charge (2) was no longer relevant. How ‘Lee’s’ version on Charge (3) should be dealt with was not touched upon by the trial judge.", "zh-HK": "不幸的是，在本案，無論原審法官或控辯雙方都沒有注意到‘李’的說法已被披露的問題。在‘李’離開法庭之後沒有任何一方提出或申請要解散陪審團。原審法官就‘李’不再作供的指引，也只是陪審團不應差測其原因及控罪（二）已無關宏旨的指引。‘李’對控罪（三）的說法應如何處理，原審法官則完全沒有觸及。" } }, { "doc_id": 120, "seg_id": 75, "translation": { "en": "The ways of dealing with the matter as mentioned above were inadequate. The trial judge’s standard direction that counsel’s submissions were not evidence could hardly make up for the damage the prosecution’s opening submission had done to the applicant. Besides, as Mr Wong has pointed out, ‘Lee’ alleged that the applicant offered to pay him hush money, the dates, venues and sums were entirely the same as ‘Wong’s’ version. Although ‘Lee’ did not give evidence, by the prosecution’s opening submission, ‘Wong’s’ version had been indirectly confirmed. The damage to the applicant was beyond reckoning. The danger of the jury becoming biased against the applicant was “real” and not just a “real likelihood” (see R v Docherty [1999] 1 Cr App R 274).", "zh-HK": "以上的處理方法，是不足的。原審法官指大律師說話不是證據的標準指引，也實在難以彌補控方開案陳詞對申請人的損害。再者，正如王大律師指出，‘李’指申請人提出要給他掩口費，無論在日期、地點和數額都和‘黃’聲稱的一樣，所以‘李’雖然沒有作供，卻藉著控方開案陳詞間接印證了‘黃’的證詞，這對申請人的損害是難以估計的。陪審團對申請人產生偏見的「危險」（danger）是「實質」（real）而非僅為「很有機會」（real likelihood）的（見R v Docherty [1999] 1 Cr App R 274）。" } }, { "doc_id": 120, "seg_id": 76, "translation": { "en": "The Court is of the view that the trial judge should have discharged the jury after ‘Lee’ refused to give evidence. Doing this would only have wasted a day’s time on the part of the court but the defence’s interests would have been effectively safeguarded. The trial judge never considered or handled it in this manner, which in itself was a ‘material procedural irregularity’. On this basis, the appeal should be allowed.", "zh-HK": "本庭認為，原審法官應該在‘李’拒絕作供之後解散陪審團。這樣做只會浪費法庭一天的時間，卻能有效保護辯方的利益。原審法官沒有考慮及確實執行這個做法，是程序上的一個‘重大不當之處’。基於這個理由，本上訴便應該得直。" } }, { "doc_id": 120, "seg_id": 77, "translation": { "en": "The Issue on the Chits", "zh-HK": "有關朵紙的問題" } }, { "doc_id": 120, "seg_id": 78, "translation": { "en": "The Court considers that there is a need to discuss D1 to D15 here.", "zh-HK": "在此，本庭認為有需要一談D1至D15的問題。" } }, { "doc_id": 120, "seg_id": 79, "translation": { "en": "It was surprising that the defence had chosen to read out the contents of all the “chits” before the jury. As the Court has mentioned, such contents were to the disadvantage of the applicant (see paras. 25-27 above). The trial judge also erred in saying that the contents had no probative value against the applicant (see paras. 33-34 above). After the defence had adduced the “chits”, the jury would be entitled to consider their contents together with other evidence and the trial judge only had to give the full direction on “inference”.", "zh-HK": "辯方選擇把這批「朵紙」的內容，悉數在陪審團席前讀出，是叫人驚訝的。正如本庭在早前提到，這些內容對申請人不利（見上文第25至27段）。原審法官指這些內容對申請人沒有頂證力（見上文第33至34段），也是不對的。辯方既然把「朵紙」呈堂，陪審團就有權把裡面的內容和其他證據一併考慮。原審法官只須足本發出有關‘推論’（inference）的指引便可。" } }, { "doc_id": 120, "seg_id": 80, "translation": { "en": "The Court understands that the defence was trying to prove through the batch of “chits” that ‘Wong’ was lying, however, the benefit of doing so in this way was much less than the damage it caused, indeed it was entirely disproportionate, particularly given that ‘Wong’s’ credibility had already been questioned (see para. 22 above). Furthermore, to prove that ‘Wong’ had approached the applicant on his own initiative, the defence only had to hand the whole batch of “chits” to ‘Wong’ and let ‘Wong’ confirm their sequence and the person writing and sending out the first “chit”. At most the defence only had to read out the sentences “you have to explain” and “reply me” at the bottom of D1 to achieve the aforesaid purposes.", "zh-HK": "本庭明白，辯方是想藉著這批「朵紙」來證明‘黃’撒謊，但這樣做的得益要遠比它所帶來的損害少，甚至完全不成比例，更何況‘黃’的可信性已在其他地方受到質疑（見上文第22段）。還有，要證明‘黃’主動接觸申請人，辯方只需要把整疊「朵紙」交給‘黃’，然後由‘黃’確認它們的次序和誰是第一張字條的簽發人。極其量，辯方只需要把D1底部即「你必須交代」和「覆我」等字句讀出，便能達到以上的目的。" } }, { "doc_id": 120, "seg_id": 81, "translation": { "en": "Of course ‘Wong’ was not a witness who could be handled easily. Taking the above approach might not be straightforward, however, compared to all the “chits” being read out and submitted, this would have been a much better way and one which should have been tried using best endeavours.", "zh-HK": "當然，‘黃’不是一個容易處理的證人，上述的過程也未必會很順暢，但相比起把「朵紙」全部讀出和呈堂，那肯定是一個遠為優勝和應該盡力嘗試的辦法。" } }, { "doc_id": 120, "seg_id": 82, "translation": { "en": "It was surprising that defence counsel disclosed the contents of the “chits”. If the applicant complained about defence counsel’s handling of the matter in this way, it would undoubtedly be a matter which required careful examination.", "zh-HK": "辯方大律師主動公開「朵紙」的內容，做法著實令人詫異。若然申請人投訴辯方大律師這個處理方法的話，那無疑是一個須要認真檢視的問題。" } }, { "doc_id": 120, "seg_id": 83, "translation": { "en": "I.Other Grounds of Appeal", "zh-HK": "I.其他上訴理由" } }, { "doc_id": 120, "seg_id": 84, "translation": { "en": "The Court does not intend to spend time discussing in detail the other grounds of appeal advanced by the applicant.", "zh-HK": "本庭不打算花時間詳細討論申請人的其他上訴理由。" } }, { "doc_id": 120, "seg_id": 85, "translation": { "en": "To put it simply, the Court considered that the analysis of HKSAR v Chand Gill CACC 219/2014 (11 January 2016) and FAMC 17/2016 (19 August 2016) applied in this case. The fact that the trial judge did not give directions according to the standard wording in Liberato was not sufficient to overturn the conviction in this case: Ground of appeal (2).", "zh-HK": "簡單而言，本庭認為，HKSAR v Chand Gill CACC 219/2014（2016年1月11日）及FAMC17/2016（2016年8月19日）的分析在本案適用，原審法官沒有按照Liberato案的標準字眼發出指引，並不足以動搖本案的定罪：上訴理由（二）。" } }, { "doc_id": 120, "seg_id": 86, "translation": { "en": "The Court considered that the circumstances in Charge (1) and in Charge (3) were truly different. For example, the date of offence of Charge (1) was much earlier than that of Charge (3), ‘Wong’ and the applicant were not caught red-handed at that time. The prosecution’s case was merely based on ‘Wong’s’ statement alleging that the applicant committed the offence. The Court did not consider that the verdicts of the two charges were inconsistent: Grounds of appeal (3) and (4).", "zh-HK": "本庭認為，和控罪（一）和控罪（三）有關的情況，著實有所分別。例如，控罪（一）的案發日期要比控罪（三）久遠，‘黃’和申請人當時沒有即場被捕，控方指申請人犯案就只憑‘黃’一個人的空述。本庭不認為這兩項控罪的裁決是‘矛盾裁決’（inconsistent verdicts）：上訴理由（三）和（四）。" } }, { "doc_id": 120, "seg_id": 87, "translation": { "en": "J.Judgment", "zh-HK": "J.判決" } }, { "doc_id": 120, "seg_id": 88, "translation": { "en": "On the basis of the conclusion at para. 49 above, the Court granted the applicant leave to appeal against his conviction, allowed his appeal and quashed his conviction.", "zh-HK": "基於上文第49段的結論，本庭批准申請人就他的定罪提出上訴，並裁定他的上訴得直，本案的定罪撤銷。" } }, { "doc_id": 120, "seg_id": 89, "translation": { "en": "Wong Hay-yiu, instructed by Cheung & Liu Solictors, for the Applicant", "zh-HK": "申請人：由張廖律師行轉聘王熙曜大律師代表" } }, { "doc_id": 120, "seg_id": 90, "translation": { "en": "Eddie Sean, Senior Assistant Director of Public Prosecutions, of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員單偉琛先生代表" } }, { "doc_id": 121, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the Reasons for Judgment of the Court):", "zh-HK": "高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 121, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 121, "seg_id": 3, "translation": { "en": "Around 3 pm on 10th October 2012, the Applicant (Chung Tang Ping) entered Hong Kong territory from Mainland China via Lok Ma Chau Control Point. At that time, the Applicant was carrying with him a red backpack containing a yellow environmental bag, inside of which were twelve plastic bags. The said twelve plastic bags were placed in brown sealed bag(s) with characters“鐵觀音”(Tie Guan Yin) and “茶”(tea) printed on the outside, but they in fact contained solid substance weighing 2.88 kilograms containing 2.35 kilograms of ketamine.", "zh-HK": "2012年10月10日約下午3時，申請人（鍾登平）經落馬洲管制站由國內入境香港。申請人當時攜帶的紅色背包有一黃色環保袋，內有12個膠袋。雖然該12個膠袋都是放在有封口及外面印有“觀音王”、“茶”等字樣的啡色袋內，但它們所載的其實是重量為2.88公斤，內含2.35公斤氯胺酮的固體。" } }, { "doc_id": 121, "seg_id": 4, "translation": { "en": "Besides the said dangerous drugs, the backpack which the Applicant was carrying also contained four cell phones and on his person, there was a Construction Industry Safety Training Certificate, a Construction Workers Registration Certificate, a Hong Kong Octopus Card, a Shenzhen Octopus Card, 170.5 Renminbi, HK$500, six bank cards and six keys.", "zh-HK": "除上述毒品外，申請人攜帶的背包內有四部手提電話，而他身上則有一張建造業安全訓練證明書、一張建造業工人註冊證、一張香港八達通卡、一張深圳八達通卡、170.5元人民幣及500元港幣、六張銀行卡和六條鎖匙。" } }, { "doc_id": 121, "seg_id": 5, "translation": { "en": "The travelling record of the Applicant showed that the Applicant left Hong Kong to enter Shenzhen via Lowu Control Point at around 6 pm on 9th October 2012. He returned to Hong Kong via Lok Ma Chau Control Point at around 3 pm on 10th October 2012.", "zh-HK": "申請人的旅遊記錄顯示他是在2012年10月9日下午約6時經由羅湖管制站離港進入深圳，並在2012年10月10日下午約3時，經落馬洲管制站返回香港。" } }, { "doc_id": 121, "seg_id": 6, "translation": { "en": "For the said incident, the Applicant was charged with the offence of trafficking 2.88 kilogrammes of solid substance containing 2.35 kilogrammes of ketamine. The Applicant pleaded not guilty and was tried before Deputy High Court Judge Woo Kwok Hing (trial judge) sitting with a jury.", "zh-HK": "上述事件導致申請人被控一項販運內含2.35公斤氯胺酮的2.88公斤固體罪。申請人否認控罪，並在高等法院暫委法官胡國興（原審法官）會同陪審團席前受審。" } }, { "doc_id": 121, "seg_id": 7, "translation": { "en": "On 7th August 2013, the Applicant was found guilty upon a unanimous decision reached by the jury and was sentenced by the trial judge to a term of 18 years’ imprisonment. Aggrieved with the conviction, the Applicant applied for leave to appeal against conviction.", "zh-HK": "2013年8月7日，申請人被陪審團一致裁定罪名成立，並被原審法官判入獄18年。申請人不服定罪，提出上訴許可申請，要求獲准就定罪上訴。" } }, { "doc_id": 121, "seg_id": 8, "translation": { "en": "After a hearing held on 29th July 2016, the Court allowed the Applicant leave to appeal against his conviction, and treating the hearing as the appeal proper, we allowed the appeal and quashed the conviction and the sentence against him. The Court also ordered the case to be remitted to the Court of First Instance for retrial. Below are the reasons for judgment of the Court.", "zh-HK": "2016年7月29日經聆訊後，本庭批准申請人就定罪上訴，並視其申請為正式上訴。本庭裁定申請人上訴得直，並撤銷針對申請人的定罪及判刑。本庭同時下令案件要發還原訟法庭重審。以下是本庭的判案理由。" } }, { "doc_id": 121, "seg_id": 9, "translation": { "en": "Prosecution’s evidence", "zh-HK": "控方證據" } }, { "doc_id": 121, "seg_id": 10, "translation": { "en": "Besides the undisputed facts as stated in paragraphs 1-3 above, the Prosecution also alleged that the Applicant, after he has been arrested and under caution, admitted that he brought “K chai” (transliteration) to Hong Kong for others only because he was short of money and needed to make a living. In the subsequent video interview taken with the police afterwards, he confirmed the admissions he had made and also made further admissions as stated below:", "zh-HK": "除了上文第1至3段列出的無爭議案情外，控方亦指申請人被拘捕及在警誡下承認因為自己缺錢，要生活，才幫人帶“K仔”來香港。其後，申請人和警方進一步錄影會面時，確認他曾作出過的招認，並作出以下進一步的招認：" } }, { "doc_id": 121, "seg_id": 11, "translation": { "en": "“He brought ‘K-chai’ from Futian of Shenzhen to Hong Kong for others. He came across a fellow he fussily called ‘old pal’ in the Kentucky restaurant in Shenzhen, whom he had come to know in his dealings as a ‘parallel goods trader’. When the Applicant told ‘old pal’ that he had had ‘no jobs in hand’, ‘old pal’ asked him if he wanted to make any money. Subsequently, the Applicant agreed to bring ‘K-chai’ for him back to Hong Kong for a remuneration of 2000 dollars. Eventually, old pal’ handed over a red backpack to the Applicant. ‘Old pal’ asked him to bring it to a bicycle storage place next to the Man On Shan line MTR station at Che Kung Temple in Shatin, and then return to Shenzhen to receive the remuneration. However, when the Applicant himself alone passed through the Control Point, he was intercepted by the police. According to the Applicant, ‘old pal’ was about 30 years old, ‘plump and of short build’ and ‘had black hair’.", "zh-HK": "“他是替人從深圳福田帶‘K仔’來香港。他在深圳肯德基餐廳碰到他做‘水貨客’時認識的一名他多口叫作‘老友’的人。當申請人告知‘老友’自己‘冇工開’時，‘老友’問他是否想賺錢。其後申請人同意替他帶‘K仔’返香港，以賺取2,000元報酬。結果，‘老友’交了一紅色背包給申請人，並囑咐他將背包帶往沙田車公廟馬鐵站旁擺單車的地方後，再返回深圳收取報酬。但當申請人一個人過關後，被警員截查。申請人表示‘老友’約30歲、‘矮矮肥肥’、黑頭髮。”" } }, { "doc_id": 121, "seg_id": 12, "translation": { "en": "Defence’s stance and the grounds of Defence", "zh-HK": "辯方的立場及答辯理由" } }, { "doc_id": 121, "seg_id": 13, "translation": { "en": "The Applicant did not elect to give evidence, nor did he call any witness to give evidence on his behalf. The Defence’s stance which the Applicant established in cross-examining the Prosecution witnesses was that a person called big sis May had handed over the dangerous drugs in the material case to him, falsely claiming that the dangerous drugs were tea leaves and asking the Applicant to bring them back to Hong Kong. The Applicant said that after arrest, he had indicated to the police that big sis May was together with him when passing through the Control Point, and also had at the scene pointed her out to the police and asked them to conduct enquiries on her. The Applicant denied having made any admissions to the police. He also alleged that the content of the video-interview was obtained as a result of the police inducing and coercing him into giving the statement. Besides, before the commencement of the interview, the police had also coached him how to give succinct answers as well as the content of those answers. According to the Defence’s stance, the contents of the video-interview were not given by the Applicant of his own volition and they were not true and accurate.", "zh-HK": "申請人沒有作供自辯，亦沒有傳召任何證人為他作供。申請人透過盤問控方證人所表達的辯方立場是有一名叫May姐的人將涉案毒品交給他，並訛稱毒品是茶葉及要申請人將它們帶返香港。申請人指被捕後，曾向警員表示May姐有和他一起過關，並有當場向警員指出May姐及邀請警員去調查她。申請人否認有向警員作出過任何招認。他更指錄影會面的內容是警員透過威逼利誘取得的，而在錄影開始前，警員更有教他如何作出簡短的答覆及答覆的內容。辯方的立場是錄影會面的內容並非申請人自願作出的，亦非真確。" } }, { "doc_id": 121, "seg_id": 14, "translation": { "en": "The trial judge’s direction to the jury", "zh-HK": "原審法官向陪審團的指引" } }, { "doc_id": 121, "seg_id": 15, "translation": { "en": "Before directing the jury, the trial judge had inquired counsel of both parties on whether he should direct the jury regarding the drawing of inference on whether the Applicant had knowledge of the presence of the dangerous drugs inside the backpack he was carrying. At that point, the judge indicated that he had yet decided on whether or not to direct the jury on the issue of “drawing inference”. He considered that he had to learn first how counsel of both parties would address the jury in their final submissions. However, in the end, the trial judge did not give any direction at all to the jury regarding the drawing of inference on whether the Applicant had knowledge that the plastic bags inside the backpack he was carrying actually contained dangerous drugs.", "zh-HK": "原審法官向陪審團作出指引前，曾向雙方大律師查詢應否就推論申請人是否知悉其攜帶的背包內有毒品一事向陪審團作出有關指引。當時原審法官表示未決定應否就“推論”一事指導陪審團，他認為要先看看雙方大律師如何向陪審團作出結案陳詞。但最終原審法官完全沒有就推論申請人是否知悉其攜帶的背包內的膠袋內藏有的其實是毒品一事向陪審團作出任何指引。" } }, { "doc_id": 121, "seg_id": 16, "translation": { "en": "The trial judge had explained to the jury the factual issues and the matters of law. The trial judge also had referred the jury to the evidence of the case. The trial judge had emphasized to the jury that they must be certain that the Applicant had committed the offence before they could convict him, otherwise they must find him not guilty.", "zh-HK": "原審法官有就案件涉及的事實爭議和法律問題向陪審團解釋。原審法官亦有向陪審團覆述案件的證據。原審法官向陪審團強調他們必須肯定申請人有罪才可以判他罪名成立，否則他們必須判申請人無罪。" } }, { "doc_id": 121, "seg_id": 17, "translation": { "en": "The trial judge when summarizing the evidence adduced by the Prosecution said the following to the jury:", "zh-HK": "原審法官向陪審團簡述控方證據時說：" } }, { "doc_id": 121, "seg_id": 18, "translation": { "en": "“… In the morning of 10th October 2012, the Prosecution had got information, was tipped-off that the defendant would turn up at the spur line Control Point as well as inside the MTR station of Lok Ma Chau and engage in dangerous drugs activities. Hence, a team of officers, … arrived at that place, and found the defendant carrying the red backpack, then arrested him, … and found inside the red backpack dangerous drugs, opened one packet to take a look, and saw it was “k-chai”, so under cautioning, the defendant admitted to acting as courier to bring “ k-chai” into Hong Kong for others. ”", "zh-HK": "“…2012年10月10日早上，控方就有資料、有線報，被告人會出現喺落馬洲支線管制站同埋港鐵站之內，咁涉及毒品嘅活動，於是一隊人，…就係去到嗰度，同埋發現咗被告人係孭住紅色嘅背包，然後就拘捕佢，…就發現紅色嘅背囊裡面有毒品，開咗一包嚟睇，就係「K仔」，咁喺警誡之下，被告人承認幫人帶「K仔」嚟香港。”" } }, { "doc_id": 121, "seg_id": 19, "translation": { "en": "The trial judge when summing up the Defence’s stance to the jury had mentioned the following:", "zh-HK": "原審法官向陪審團覆述辯方的立場時有說過：" } }, { "doc_id": 121, "seg_id": 20, "translation": { "en": "“The Defence’s account was that when the defendant was at the escalator, at the escalator in the lobby, coming up from the location of DIA, down below was that person, then pointing to that person, that was big sis May, pointing at that person, ie to show to the police, pointing to show to the police officers, so he said that one was big sis May, the one who gave the backpack to him. Hence, this contradicted with the story in the video-interview, P31, which said that the backpack was given to him by old pal, which was different, how come there it mentioned old pal, here it mentioned big sister May. If so, it conflicted with paras. 287 and 292 of P26. Besides, the Defence had put it that he and big sis May passed through the Control Point together, so here, this conflicted with what was mentioned in para. 233 of P26 that he passed through the Control Point alone, because it was mentioned at P26, in para.233 that he passed the Control Point alone, here was where the conflict lies, compared with his saying… what he, the Defence raised in cross-examination, the so-called means, the saying. According to the Defence, after the defendant was arrested, before getting onto the vehicle to proceed to Lok Ma Chau police station, he had asked the police officers repeatedly, 51516, also 503, asking why not arrested the female, ie why not arrested big sis May. So, this point was inconsistent with the saying that he had no knowledge of the presence of dangerous drugs inside the backpack, if he carried tea leaves for others, why on earth did he ask someone to arrest the female? To act as courier to bring tea leaves for the female, ie not in line with his saying that he did not know that the stuff was dangerous drug, because if he was carrying tea leaves for the female, at that point of time there was no mentioning by him that the Prosecution witness had torn open a packet, giving him the chance to see that that was dangerous drug, in that case why would he ask the police, why did they not arrest the female, what had it got to do with the female, bringing tea leaves, so what, so to speak.”", "zh-HK": "“辯方嘅說法就係話被告人喺扶手電梯，喺嗰個大堂嗰個扶手電梯，D1A嗰度上去嘅時候，就下面有個人就向佢指一指，嗰個May姐向佢指一指，即係指畀差人睇喇，指畀警方嘅人員睇喇，咁佢就話嗰個就係May姐就係畀背囊佢嗰個人，咁呢個同P31嗰個錄影會面嗰個故事，話係老友畀個背囊佢係衝突嘅，係唔同嘅，點解喺嗰度就講老友，嗰度就講May姐呢，咁就係同嗰個P26，287同埋292段嗰度係衝突嘅。仲有，辯方嘅說法喇，話佢係同May姐一齊過關，咁呢度同P26第233段所講一個人過關嗰度係衝突嘅，因為P26嗰度講，第233段嗰度講，佢一個人過關，咁呢度係衝突嘅，同佢講話--佢而家辯方所盤問、所講嘅方法，嗰個說法。辯方嘅說法喇，就話被告被捕之後，上車去落馬洲警署之前，佢多次問啲警員，51516、503佢都問過，話點解唔拉嗰個女人呢，即係點解唔拉May姐，咁呢個就同佢唔知道背囊裡面有毒品嘅說法係不符，如果佢係同人袋茶葉，佢做乜嘢叫人拉嗰個女人呢，同個女人帶啲茶葉，即係同佢個說法，話佢唔知道嗰啲係毒品係不符，因為如果佢係替嗰個女人帶茶葉喇，咁嗰陣時佢都冇話係控方嘅證人已經撕開咗一包畀佢睇到係毒品，咁點解佢會問警察，點解唔拉嗰個女人呢，關個女人咩嘢事呢，帶茶葉，so what，所謂。”" } }, { "doc_id": 121, "seg_id": 21, "translation": { "en": "Subsequently, the trial judge realized that what he said above was erroneous, so on the following day when he went on to direct the jury, he rectified the error and said the following to the jury:", "zh-HK": "其後，原審法官察覺上述說法有錯，故在翌日繼續指引陪審團時糾正他的錯誤，並向陪審團說：" } }, { "doc_id": 121, "seg_id": 22, "translation": { "en": "“Members of the jury, sorry to keep you waiting, because we need to clarify something, so have to keep you waiting, and now the issue has been clarified. Yesterday, I mentioned to you about the defendant’s case, the Defence’s account was that after the defendant’s arrest and before getting onto the vehicle to Lok Ma Chau, he had mentioned to the police officers, ie 51516, he said why on earth not arrested that female, big sis May, about this matter, I had erred when saying this. In actual fact, he was not asked at this point according to the evidence which we had heard. When 51516 was being asked, he was not asked that the defendant when spoke to him as to why not arrested big sis May, not the case, he didn’t say this, didn’t ask this, when he asked, it was as such… the defendant was requesting the police , requesting 51516 to make enquiry of big sis May, he did mention big sis May, just to enquire, not saying to arrest her, hence had no conflict with his account which said that he didn’t know dangerous drugs were being carried, instead he was merely carrying tea leaves, understand? You need to know clearly that I had erred when saying this, and so this matter on the evidence has to be rectified. Secondly, regarding what I mentioned yesterday, I said one of the weaknesses of the Defence was that according to the Defence’s account, there’s this person, big sis May, about this woman, pointing at her and said this person was big sis May who gave him the tea leaves to bring back to Hong Kong. There in the video-interview, at P31, which you had watched, had been played, or there in the transcript, ie P26, you will note the conflict, because in the video-interview, it was mentioned that it was given by old pal, the stuff was given by old pal.”", "zh-HK": "“各位陪審員，唔好意思，要你哋等，因為我哋要澄清一啲嘢，所以要你哋等，而家就澄清咗喇。琴日，我向你哋講話被告人嘅說法，辯方嘅說法就係話佢被拘捕之後，上車去落馬洲之前，佢就同警方嘅人員講，即係51516喇，佢就話點解唔拉嗰個女人，個May姐，咁嗰度係我講錯，係我講錯咗，個實情，我哋聽過嗰啲證據就唔係問佢嘅時候，問51516嘅時候，唔係問佢個被告人同佢講話點解唔拉May姐，冇，佢冇咁講嘅，冇咁問，佢問嗰度就係話點--個被告人係邀請警方，邀請51516去調查May姐，佢有講過May姐，去調查啫，唔係話拉佢，咁就唔係同佢嗰個故事話佢唔知道係帶毒品，只不過係帶茶葉嗰個說法唔係衝突嘅，明白嘛？你要清楚知道，我講錯咗，咁嗰個要糾正番呢一個證據上嘅問題。咁第二方面喇，就係我琴日亦都有講，我話嗰個辯方嘅弱點之一喇，其中嘅就係嗰個辯方嘅說法喇，話有個May姐，話個女人指佢一指，嗰個就係May姐喇，就畀佢帶茶葉返嚟香港嘅，嗰度同嗰個錄影會面，嗰個P31嗰度，你睇過、播放過，或者嗰個謄本就係P26嗰度有衝突，因為嗰個錄影會面嗰度講嘅故事就係話老友畀佢，啲嘢係老友畀佢。”" } }, { "doc_id": 121, "seg_id": 23, "translation": { "en": "The trial judge once again drew the jury’s attention to two points of conflict existing between the Defence’s stance and the Applicant’s account noted in the record of interview: (1) According to the Defence’s stance, the dangerous drugs involved in the case were given by big sis May, whereas in the record of interview, it was “old pal” who gave them to him; (2) According to the Defence’s stance, the Applicant and big sis May had passed through the Control Point together, whereas in the record of interview, the Applicant passed through the Control Point alone.", "zh-HK": "原審法官再一次向陪審團指出辯方的立場和申請人在會面記錄內的說法有兩點衝突：（一）辯方立場是涉案毒品是May姐交給他的，但在會面記錄則說是“老友”交給他的；（二）辯方立場是申請人是和May姐一起過關，但在會面記錄則說他是一個人單獨過關。" } }, { "doc_id": 121, "seg_id": 24, "translation": { "en": "In making his comment when directing the jury, the trial judge had set out in detail those points which he considered to be the weaknesses of Defence’s case, and had repeatedly stressed that there were inconsistencies between the Defence’s stance and the account recorded in the interview between the Applicant and the police officer.", "zh-HK": "原審法官在引導陪審團的陳詞有詳細列出他認為是辯方的弱點，並多番強調辯方的立場與申請人和警員會面時的說法有不同。" } }, { "doc_id": 121, "seg_id": 25, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 121, "seg_id": 26, "translation": { "en": "Mr. Andy Hung, the counsel for the Applicant, raised a series of grounds in supporting the Applicant’s application.", "zh-HK": "代表申請人的孔慶碩大律師提出多項上訴理由，支持他的申請。" } }, { "doc_id": 121, "seg_id": 27, "translation": { "en": "Mr Hung submitted that during the trial, the jury were aware of the fact that the police had received information indicating that the Applicant was involved in dangerous drugs activities and would turn up at the Lok Ma Chau Control Point and inside the MTR station, and also acting thereupon the police proceeded to intercept the Applicant. The prejudice caused to the Applicant as a result of the jury’s awareness of this fact had outweighed the probative value of the said evidence in the trial. However, the trial judge had not instantly stopped the questioning, nor did he, when directing the jury, point out expressly to them that they could not form an adverse opinion against the Applicant on the ground that the Applicant was the target person of the police information. Mr Hung was of the view that the trial judge’s approach in dealing with the matter constituted unfairness to the Applicant.", "zh-HK": "孔大律師指原審時，陪審團知悉警方是根據線報顯示申請人涉及毒品活動及會在落馬洲管制站和港鐵站內出現去截查申請人，而這點對申請人的損害大於該些證據的舉證價值，但原審法官沒有隨即停止該方面的查問，亦沒有在引導陪審團時向他們指明他們不能以申請人是警方線報的標的人物而針對申請人。孔大律師認為原審法官的處理方法對申請人造成不公。" } }, { "doc_id": 121, "seg_id": 28, "translation": { "en": "Mr Hung submitted that the trial judge’s direction to the jury, as a whole, had been unfair and unbalanced, thereby depriving the Applicant of the chance of a fair trial.", "zh-HK": "孔大律師認為原審法官對陪審團的整體指引，是不平衡公允，導致申請人沒有得到一個公平審訊的機會。" } }, { "doc_id": 121, "seg_id": 29, "translation": { "en": "Mr Hung emphasized that on the matter of the Defence’s stance, the trial judge had made an error of fact. Mr Hung submitted that the trial judge had mistakenly adopted the view that, the Applicant had questioned the police officer(s) many times why the female whom he had pointed out was not arrested, and used these matters to refute the Applicant’s account of his ignorance. The rationale for that view was that if the Applicant had no knowledge that the backpack contained dangerous drugs, and that at that point of time, the police officer had not yet opened any packet of tea leaves, showing the suspected dangerous drugs contained therein, no ground would exist at all for the Applicant to request the police to arrest the female pointed out by him.", "zh-HK": "孔大律師強調原審法官就辯方的立場犯了事實上的錯誤。孔大律師指出原審法官錯誤地認為申請人曾多次向警員質疑為何不拘捕他指出的女子，並以該些事情來駁斥辯方指申請人不知情的說法，原因是假若申請人不知悉他攜帶的背包內有毒品，而當時警員還沒有打開任何一包茶葉，顯示內藏可疑毒品，申請人根本沒有基礎指警員應該拘捕申請人指出的女子。" } }, { "doc_id": 121, "seg_id": 30, "translation": { "en": "Mr Hung contended while the trial judge had, when he was directing the jury on the following day, rectified the said error, ie, the Applicant was only requesting the police to make enquiry of the said female, rather than to arrest her, as well as pointing out no conflict existed between this account and the Applicant’s case that he had no knowledge of the existence of the dangerous drugs, this was not sufficient to eliminate the preconceived notion of the jury that was formed previously.", "zh-HK": "孔大律師認為原審法官在引導陪審團第二天時糾正上述錯誤，即申請人只是邀請警員調查該名女子，而非拘捕她，並指該說法和申請人不知情的說法並無衝突，不足以消除陪審團可能有先入為主的想法。" } }, { "doc_id": 121, "seg_id": 31, "translation": { "en": "Mr Hung submitted that the trial judge had repeatedly emphasized there were conflicts between the Defence’s stance and the content of the record of interview of the Applicant, but had not appropriately expressed to the jury that the basis of such conflicts was that the Applicant had made certain admissions of his own volition, and that those admissions were true and accurate admissions. Mr Hung considered that the trial judge should have expressed to the jury that the according to the Defence’s stance, the Applicant had not made such admissions. Mr Hung emphasized that if the jury were not satisfied that the content of the said record of interview was given by the Applicant of his own volition and that it was true and accurate, then the conflict raised by the trial judge through comparing the Defence’s stance and the record of interview did not exist at all.", "zh-HK": "孔大律師指出原審法官多番強調辯方立場和申請人的會面記錄內容所顯示的矛盾，但卻沒有恰當地向陪審團指明該些矛盾只是建基在申請人確有自願作出過一些招認而該些招認是正確的。孔大律師認為原審法官理應向陪審團表明辯方的立場是申請人沒有作出過有關招認。孔大律師強調假若陪審團不接納有關會面記錄的內容是申請人自願作出及是正確的，則原審法官所指辯方立場和申請人會面記錄相比時所顯示的矛盾根本不存在。" } }, { "doc_id": 121, "seg_id": 32, "translation": { "en": "Mr Hung was of the view that the comment which the trial judge made against the Defence’s stance in his direction to the jury was even more critical and severe than the submission by the Prosecution, therefore had been unfair to the Applicant.", "zh-HK": "孔大律師認為原審法官在引導陪審團時對辯方立場所作出的批評較控方的陳詞更嚴厲、尖銳，對申請人不公。" } }, { "doc_id": 121, "seg_id": 33, "translation": { "en": "Mr Hung also alleged that the Prosecution witness/es had, in the course of giving evidence, inappropriately disclosed that the Applicant might have previous convictions. The trial judge, however, had not indicated to the jury that they must not speculate on whether or not the Applicant had any previous convictions, and also that even if he had previous convictions, that was not relevant to offence of the present case.", "zh-HK": "孔大律師亦指控方在其證人作供期間，不恰當地向陪審團透露關於申請人可能有案底的問題，但原審法官沒有指示陪審團不可猜度申請人是否有案底，而即使他有案底亦和他是否干犯本案所指的罪行無關。" } }, { "doc_id": 121, "seg_id": 34, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 121, "seg_id": 35, "translation": { "en": "(a) Previous Convictions", "zh-HK": "(一)案底" } }, { "doc_id": 121, "seg_id": 36, "translation": { "en": "In a criminal trial, the matter of whether or not the defendant has any previous convictions should not be disclosed to the jury, the reason being making such disclosure would cause the jury to be biased against the defendant, thereby prejudicing to the defendant.", "zh-HK": "在刑事審訊過程，被告人有案底一事不應該向陪審團透露，原因是透露被告人有案底會對被告人造成損害，令陪審團對他產生偏見。" } }, { "doc_id": 121, "seg_id": 37, "translation": { "en": "During the trial, the counsel for the Applicant requested the Prosecution witness to verify that according to the “antecedents” of the Applicant available to the police, the Applicant got married in 2005, and his wife was a mainlander, residing in Mainland China.", "zh-HK": "原審時，代表申請人的大律師要求控方證人證實根據警方取得的申請人“三世口供”，申請人是在2005年結婚，而他的太太是大陸人，在國內居所。" } }, { "doc_id": 121, "seg_id": 38, "translation": { "en": "Below is a conversation that followed subsequently between the trial judge and the Prosecution witness on the aforementioned “antecedents”:", "zh-HK": "原審法官隨後就該份“三世口供”和控方證人有以下對答：" } }, { "doc_id": 121, "seg_id": 39, "translation": { "en": "“Judge’s question:…. Is this document, your document what you called the antecedents?", "zh-HK": "“官問：…呢份你係咪叫做三世書嘅嘢呀，你哋呢個？" } }, { "doc_id": 121, "seg_id": 40, "translation": { "en": "Answer:Yes, in our department, the police department, this is the so-called the antecedents document.", "zh-HK": "答：我哋警察部門面俗稱叫做一份三世書囉，係。" } }, { "doc_id": 121, "seg_id": 41, "translation": { "en": "Question:Antecedents, that is relating to the arrested person’s family circumstances, family condition?", "zh-HK": "問：三世書，即是係個被捕人嗰個家境、家庭狀況？" } }, { "doc_id": 121, "seg_id": 42, "translation": { "en": "Answer:Yes, that’s right, correct.", "zh-HK": "答：係，冇錯，冇錯。" } }, { "doc_id": 121, "seg_id": 43, "translation": { "en": "Question:Does that include, inter alia, previous convictions etc. uh, right?", "zh-HK": "問：有冇案底，咁等等嘅嘢喇，係咪呀，即係？" } }, { "doc_id": 121, "seg_id": 44, "translation": { "en": "Answer:Little bit… this document is to assist us when we have to produce the (antecedent statement) later in court, this document.", "zh-HK": "答：少少喺--呢個係幫助我哋日後對法庭呈遞嗰份（antecedent）嘅一個幫助嚟嘅，呢份係。" } }, { "doc_id": 121, "seg_id": 45, "translation": { "en": "Question:Um, but when was this statement taken?", "zh-HK": "問：唔，但係呢份口供係幾時攞？" } }, { "doc_id": 121, "seg_id": 46, "translation": { "en": "Answer:This statement ….", "zh-HK": "答：呢份口供… …。" } }, { "doc_id": 121, "seg_id": 47, "translation": { "en": "Question:Please. Can you take a look to see when this statement was taken?", "zh-HK": "問：唔該。你而家睇下嗰份口供係幾時攞？" } }, { "doc_id": 121, "seg_id": 48, "translation": { "en": "…", "zh-HK": "… …" } }, { "doc_id": 121, "seg_id": 49, "translation": { "en": "Answer:1:20 pm on 11th October", "zh-HK": "答：10月11號嘅下午1時20分。" } }, { "doc_id": 121, "seg_id": 50, "translation": { "en": "Question:Was it in 2012?", "zh-HK": "問：唔2012年吖嘛?" } }, { "doc_id": 121, "seg_id": 51, "translation": { "en": "Answer:Correct, My Lord.", "zh-HK": "答:冇錯，法官大人。" } }, { "doc_id": 121, "seg_id": 52, "translation": { "en": "…”", "zh-HK": "… …”" } }, { "doc_id": 121, "seg_id": 53, "translation": { "en": "The Court did not understand why the trial judge at the said stage and in the presence of the jury asked the Prosecution witness about the antecedents of the Applicant. We were also puzzled as to why the matter of “any previous conviction” was raised. After going through the entire transcript of the trial, the Court could not ascertain any purpose or effect of raising these questions. Therefore, these questions raised by the trial judge were in fact unnecessary.", "zh-HK": "本庭不明白原審法官為何要在有關階段及在陪審團在場時向控方證人查問有關申請人三世書之事，更不明白他為何要提及“有冇案底”一事。本庭翻閱過整個審訊騰本，都不能查覺提出該些問題的目的或作用。因此，原審法官的提問其實毫無需要。" } }, { "doc_id": 121, "seg_id": 54, "translation": { "en": "However, when the said conversation was understood properly, it can be seen that they did not support Mr Hung’s allegation that the conversation suggested that the Applicant might have previous convictions, thereby constituting unfairness to the Applicant.", "zh-HK": "但恰當地理解上述問答，並不支持孔大律師指有關對答會顯示申請人可能有案底，對申請人不公。" } }, { "doc_id": 121, "seg_id": 55, "translation": { "en": "The trial judge only pointed out that antecedents referred to matters such as the family condition, family background of the person under arrest, and “any previous convictions” etc. The trial judge did not expressly or implicitly indicate that the Applicant had had any previous convictions.", "zh-HK": "原審法官只是指出三世書是關於一名被捕人的家庭狀況、背景及“有冇案底”等事。原審法官沒有明示或暗示申請人有案底。" } }, { "doc_id": 121, "seg_id": 56, "translation": { "en": "The Court does not agree that the questions raised by the trial judge would constitute unfairness to the Applicant. We did not accept either that the trial judge had to express to the jury that even if the Applicant had had any previous convictions, it would have no bearing on whether he had committed the offence in the charge. The approach suggested by Mr Hung could even more likely predispose the jury to be biased against the Applicant. The Court does not agree with the said suggestion.", "zh-HK": "本庭不同意原審法官的發問會對申請人造成不公，本庭更不同意原審法官要向陪審團表示即使申請人有案底，這亦和他是否有干犯控罪所指的罪行無關。孔大律師建議的做法更可能會令陪審團對申請人產生偏見。本庭不認同該建議。" } }, { "doc_id": 121, "seg_id": 57, "translation": { "en": "(b)“Information”, “Target Person”", "zh-HK": "(二)“線報”、“目標人物”" } }, { "doc_id": 121, "seg_id": 58, "translation": { "en": "Matters such as the police arresting a defendant upon information received or the defendant being the police’s target person should not be disclosed to the jury. The reason is that such evidence is hearsay evidence. Not only is it irrelevant to whether the defendant is guilty or not, it may also cause the jury to be biased against the defendant. Terms such as “information” and “target person” are likely to arouse in one’s mind the notion that information received by the police concerning illegal activities is related to the defendant. Such kinds of information have substantial influence on the jury, who are lay people. It would also easily tend to predispose them to be biased against the defendant and form the preconceived notion that he/she must be related to the illegal activities. (See R v Li Chun Choi [1990] 1 HKLR 665)", "zh-HK": "警方是根據“線報”拘捕一名被告人或被告人是警方的目標人物等事項不應向陪審團披露，原因是該類證據屬傳聞證據，不但和被告人是否有罪無關，更可能會導致陪審團對被告人有偏見。“線報”、“目標人物”等用詞會令人聯想到警方收取到和非法活動有關的資料是和被告人有關，該些資料對非專業的陪審團的影響極為深遠，亦很容易令他們對被告人有偏見，認定他必然是和非法活動有關。（見R v Li Chun Choi [1990] 1 HKLR 665案）" } }, { "doc_id": 121, "seg_id": 59, "translation": { "en": "The Court of Appeal on page 10 of the judgment of R v Ko Po Kun [1989] 2 HKLR 8 expressly stated the following:", "zh-HK": "上訴法庭在R v Ko Po Kun [1989] 2 HKLR 8案判案書第10頁，表明：" } }, { "doc_id": 121, "seg_id": 60, "translation": { "en": "However, the Court need to point out that during the trial, the Prosecution did not proactively bring up the issue that the Applicant was the target person of the police or that the police arrested the Applicant upon information they had received.", "zh-HK": "但本庭需指出，原審時，控方並沒有主動提出申請人是警方的目標人物或警方是根據線報去拘捕申請人。" } }, { "doc_id": 121, "seg_id": 61, "translation": { "en": "PC 33410 was one of the police officers who arrested the Applicant. During examination-in-chief, he said expressly that he proceeded to the arrival hall of Lok Ma Chau Control Point according to instructions. However, Mr Yu, representing the Applicant, when cross-examining the said police officer, specifically requested the police officer to disclose the content of the instructions he had received, leading the said officer to admitting that due to the instructions received, he got to know about the name of the target person, his date of birth, identity card number, his appearance from photographs, build, hairstyle and that he frequently carried a red backpack. These particulars matched those of the Applicant.", "zh-HK": "拘捕申請人的其中一位警員33410，在主問時表明是按訓示前往落馬洲管制站入境大堂。但代表申請人的余大律師在盤問該名警員時明確要求警員表明訓示的內容，導致該名警員承認他得到訓示，令他知悉目標人物的姓名、出生日期、身份證號碼、相片、身材、髮型及經常會攜帶一個紅色背囊。該些特點和申請人吻合。" } }, { "doc_id": 121, "seg_id": 62, "translation": { "en": "The approach of Mr Yu aroused the attention of the Prosecution counsel during the trial. Although the focus of concern of the Prosecution counsel was that the questions put by Mr Yu could affect the investigation carried by the police. Nevertheless, after deliberation between the trial judge and both parties in the absence of the jury, Mr Yu continued with his cross-examination, during which the police officer confirmed that the instructions which he received included, inter alia, that the Applicant would return to Hong Kong via Lok Ma Chau Control Point, and also he was involved in “trafficking” activities.", "zh-HK": "余大律師的處理方法受到原審時的主控大律師的關注。雖然主控大律師關注的焦點是余大律師的問題會影響警方的調查工作，但經陪審團不在場時，雙方和原審法官的商討後，余大律師繼續盤問警員，並得到警員確認他受到的訓示，包括申請人會從大陸經落馬洲管制站返回香港，而他涉及“販毒”行為。" } }, { "doc_id": 121, "seg_id": 63, "translation": { "en": "The approach of Mr Yu was not difficult to understand. Apparently, he wanted to verify that the police right at the beginning had got information saying that the Applicant was going to return from Mainland China to Hong Kong via Lok Ma Chau Control Point with a red backpack to support the Defence’s stance, ie somebody who on one hand put the dangerous drugs involved in the case into tea leaves packaging and asked the Applicant to bring the said dangerous drugs inside the backpack back to Hong Kong, whilst on the other hand, informed the police to arrest the Applicant.", "zh-HK": "余大律師的處理手法不難理解。他明顯是希望能確立警方一早有線報顯示申請人會攜帶一紅色背包經落馬洲管制站由國內返回香港，以支持辯方的立場，即有人一方面將涉案毒品包裝成茶葉後要申請人將載有該批毒品的背包帶返香港，但另一方面則知會警方去拘捕申請人。" } }, { "doc_id": 121, "seg_id": 64, "translation": { "en": "Although it was the Defence that proactively brought up the issue that the police acted upon information to proceed to Lok Ma Chau Control Point to arrest the Applicant, who was the target person of the police, with the express purpose to reinforce the Defence’s stance, the trial judge should proactively explain to the jury when he was directing them the reason for disclosing to them the Applicant’s identity as the police’s target person, in order to avoid causing the jury to be biased against the Applicant on the ground that the Applicant was the police’s target person. He should also make it plain to them that they should not on that ground form the notion that the Applicant therefore must be related to the police’s anti-dangerous drugs activities, and that the Applicant had taken part with knowledge in the said offence.", "zh-HK": "雖然申請人是警方的目標人物，而警方是根據線報前往落馬洲管制站拘捕申請人一事是由辯方主動提出，而其明確目的是為了加強辯方的立場，但在引導陪審團時，為了要避免陪審團因申請人是警方目標人物一事對申請人抱有偏見，原審法官應主動向陪審團解釋向他們披露申請人是目標人物的原因，並向他們表明他們不應該因該事而認為申請人必然和警方的反毒品行動有關，及申請人是在知情下參與該罪行。" } }, { "doc_id": 121, "seg_id": 65, "translation": { "en": "The trial judge when directing the jury pointed out that the police from sources and information by informant learnt that the Applicant would appear at the Lok Ma Chau Control Point and engage in dangerous drugs activities. However, the trial judge had not expressed to them that the said incident was irrelevant to whether the Applicant had with knowledge taken part in dangerous drugs activities, and also they may not because of this form a biased view of the Applicant.", "zh-HK": "原審法官在引導陪審團時指警方是根據資料和線報得知申請人會出現在落馬洲管制站及會涉及毒品活動，但沒有向他們表明該事件和申請人是否有在知情下參與販毒活動無關，而他們更不能因該事件而對申請人有偏見。" } }, { "doc_id": 121, "seg_id": 66, "translation": { "en": "The Court agree that the trial judge had in fact acted in a manner constituting unfairness to the Applicant.", "zh-HK": "本庭同意原審法官的做法對申請人確有不公。" } }, { "doc_id": 121, "seg_id": 67, "translation": { "en": "(c) Lack of direction on inferring knowledge", "zh-HK": "(三)沒有知情推論的指引" } }, { "doc_id": 121, "seg_id": 68, "translation": { "en": "The facts of this case was simple. There was not much scope of dispute between the parties. The allegation of the Prosecution was that when the Applicant was intercepted for enquiry, upon search in the backpack which he was carrying was found a large quantity of ketamine in tea leaves packaging, and under caution, the Applicant had made both verbal and written admissions.", "zh-HK": "本案的案情簡單，雙方爭議的範圍亦不大。控方指截查申請人時，在他攜帶的背包內搜出包裝成茶葉的大量氯胺酮，而在警誡下，申請人有作出過口頭及書面的招認。" } }, { "doc_id": 121, "seg_id": 69, "translation": { "en": "The Defence accepted that the ketamine in the material case was found upon search in the backpack carried by the Applicant, but denied that any relevant verbal or written admissions had been made. The Defence’s stance was that police officer(s) by way of coercion and inducement had made the Applicant sign on the document, and that under instigation and abetment of the police officer(s), he had made some untrue statements. The Defence also claimed that the Applicant had had no knowledge of the fact that the plastic bag(s) which appeared to contain tea leaves contained ketamine. The Applicant, however, did not go to the witness box to testify nor did he call any witness to support the Defence’s stance or account.", "zh-HK": "辯方同意涉案氯胺酮是在申請人攜帶的背包內搜出，但否認有作出過有關的口頭或書面招認。辯方的立場是警員威逼利誘申請人，要他在文件上簽名，而他亦是在警員的誘導及教唆下作出一些並非真確的陳述。辯方亦指申請人對看似是茶葉的膠袋內載有氯胺酮不知情。但申請人沒有作供，亦沒有傳召證人支持辯方的立場及說法。" } }, { "doc_id": 121, "seg_id": 70, "translation": { "en": "The jury needed to deliberate on issues including whether the relevant admissions were made by the Applicant of his own volition and whether their content were true and accurate. If the jury decided that the Applicant had made such admissions, they had to further consider whether the Prosecution’s evidence as a whole was sufficient to cause them to be satisfied that the Applicant was in possession of the ketamine in the material case with knowledge for the purpose of trafficking. Even if the jury were of the view that the Applicant had not made the said admissions or their content were not true and accurate, and that they would not include them in consideration in accordance with the direction of the trial judge, the jury still had to decide whether the Applicant had knowledge of the existence of the said ketamine in his possession based on other undisputed evidence, namely when the Applicant was entering Hong Kong from Mainland China, he was carrying with him a red backpack, inside of which were 12 brown sealed plastic bags with characters “鐵觀音” (Tie Guan Yin) “茶” (tea) printed on the surface and containing large quantities of the ketamine in the material case. In the absence of direct evidence, the jury had to rely on the Prosecution’s evidence to draw inference on whether the Applicant had knowledge of the existence of the dangerous drugs inside the backpack that he was carrying.", "zh-HK": "陪審團要解決的議題，包括有關的招認是否申請人自願作出及其內容是否真確。如陪審團認定申請人有作出過該些招認，他們要進一步考慮控方的整體證據是否足以導致他們確信申請人是在知情下管有涉案的氯胺酮，用作販運用途。即使陪審團認為申請人沒有作出過有關招認或該些招認內容並非真確，而他們要根據原審法官的指引不將該些招認考慮在內，但陪審團仍要根據其他無爭議的證據，即申請人從國內進入香港時，其攜帶的紅色背包內有12個封口及印有“觀音王”、“茶”等字樣的啡色膠袋，內有涉案的大量氯胺酮等證據來決定申請人是否在知情下管有該些氯胺酮。由於沒有直接證據，陪審團要根據控方證據來推論申請人對其攜帶的背包內藏毒一事是否知情。" } }, { "doc_id": 121, "seg_id": 71, "translation": { "en": "If the jury could draw on the basis of other undisputed evidence as the only reasonable inference that the Applicant had knowledge of the existence of ketamine or other kinds of “dangerous drugs” inside the backpack he was carrying, then it would not be difficult for them to be satisfied that the Applicant was in possession of the said batch of ketamine for the purpose of trafficking, in particular the undisputed evidence was that the Applicant had brought the said batch of ketamine from Mainland China into Hong Kong.", "zh-HK": "假若陪審團根據其他無爭議的證據能作出的唯一合理推論是申請人知悉背包內載有的物品是氯胺酮或其他“毒品”，則他們不難確信申請人管有該批氯胺酮作販運用途，特別是無爭議的證據顯示申請人是從國內將該批氯胺酮帶入香港。" } }, { "doc_id": 121, "seg_id": 72, "translation": { "en": "However, the trial judge did not direct the jury as to what approach they should adopt in the drawing of inference. Nor had he reminded the jury that before drawing the inference that the Applicant was guilty or other inferences not in favour of the Applicant, they must be satisfied that based on the accepted evidence, such inference was the only reasonable and irresistible inference that could be drawn, otherwise the jury could not draw the inference that the Applicant was guilty or any other inferences adverse to him. Although Mr Hung had not raised this point as a ground of appeal, the Court is of the view that the fact that the trial judge did not direct the jury on the matter of inference was fatal to verdict convicting the Applicant.", "zh-HK": "但原審法官並沒有指引陪審團處理推論時應採取的態度，更沒有提醒陪審團他們作出申請人有罪或對申請人不利的推論前，必須確信根據他們接納的證據，申請人有罪或對申請人不利的推論是唯一合理和不可抗拒的推論，否則陪審團不能作出申請人有罪或不利申請人的推論。雖然孔大律師沒有提出這上訴理由，但本庭認為原審法官沒有就推論指引陪審團一事對針對申請人的有罪裁決是致命的。" } }, { "doc_id": 121, "seg_id": 73, "translation": { "en": "(d) Inadequacy of rectification on error in direction", "zh-HK": "(四)糾正錯誤指引的不足" } }, { "doc_id": 121, "seg_id": 74, "translation": { "en": "The jury certainly were aware of the conflicts existing between the stance indicated by the Defence and the content of the relevant admissions.", "zh-HK": "陪審團必然知悉辯方表達過的立場和有關招認的內容是有矛盾的。" } }, { "doc_id": 121, "seg_id": 75, "translation": { "en": "The trial judge had repeatedly drawn attention to these conflicts, including whether the Applicant passed through the Control Point alone or he and big sis May passed through the Control Point together; and whether the backpack was given by “old pal” or given by big sis May. In the course of directing the jury, the trial judge also misunderstood the Defence’s stance when he said that the Applicant had asked the police officer(s) why they did not arrest big sis May. He also stressed that this account was inconsistent with the Defence’s stance that the Applicant had no knowledge of the existence of the dangerous drug inside his backpack.", "zh-HK": "原審法官多番提醒該些矛盾，包括申請人是一個人過關或和May姐一齊過關；及紅色背包是源自“老友”或May姐。在引導陪審團的過程中，原審法官更曾有誤解辯方的立場，指申請人曾向警員查詢為何他們不拘捕May姐，並強調該說法和辯方指申請人不知悉其背包內有毒品的立場不符。" } }, { "doc_id": 121, "seg_id": 76, "translation": { "en": "Although on the following day, the trial judge did rectify the said error, and also had reminded the jury that if they could not be satisfied that the said video interview was not given by the Applicant, or that its content was not true and accurate, then they needed not consider those records of interview. However, the trial judge had not reminded the jury that the basis of such contradiction and conflict was the Prosecution’s allegation that those verbal and written admissions had actually been made by the Applicant. Nor did the trial judge alert the jury to the matter that when deliberating the said issue, besides the circumstances seen in the record of interview as alleged by the Defence, they also have to take into consideration the Defence’s account that the Applicant had not made the verbal admission.", "zh-HK": "雖然原審法官在翌日有糾正上述錯誤，亦有提醒陪審團如他們不能確信有關的錄影會面記錄並非源自申請人，或其內容並非真確，則他們無需理會該些錄影會面記錄，但原審法官沒有提醒陪審團他所指的矛盾及衝突是建基在申請人確有如控方所指有作出過該些口頭和書面招認。原審法官亦沒有提醒陪審團考慮上述議題時，除了辯方指錄影會面記錄出現的情況外，陪審團亦要考慮辯方指申請人沒有作出口頭招認的說法。" } }, { "doc_id": 121, "seg_id": 77, "translation": { "en": "When presiding over criminal cases sitting with a jury, the trial judge is entitled to make comments on the relevant evidence, and when appropriate, use wordings that are persuasive. However, because the summing-up of the trial judge to the jury is the last statement heard by the jury before retiring from court for deliberation, therefore, its influence on the jury would be even greater than that of the Defence’s submission. Hence, the trial judge’s direction must be fair and take into consideration the interests of the Prosecution and the Defence. If the directions of the trial judge to the jury are not fair, reiterating to the jury repeatedly “these issues are to be the decision of the jury” would be pointless in this regard. (HKSAR v Umali [2011] 3 HKC 146)", "zh-HK": "和陪審團一起處理刑事案件時，主審法官當然可以評論有關證據，而在合適時更可以使用具說服力的用詞。但主審法官對陪審團的指引是陪審團退庭商議前聽到的最後陳述，對他們的影響力較辯方的結案陳詞更大。因此，主審法官的指引必須公平及兼顧控辯雙方的權益。如主審法官對陪審團的指引並非持平時，不停地向陪審團說“該些事項是由陪審團決定”亦是無補於事。（見HKSAR v Umali [2011] 3 HKC 146案）" } }, { "doc_id": 121, "seg_id": 78, "translation": { "en": "The Court of Appeal, in HKSAR v Yeung Chor Ming [2004] 1 HKLRD 136, having considered a series of cases concerned with whether the summing-up by the trial judge was delivered in a fair and just manner, set out the following two legal principles (see page 145 of the Judgment):", "zh-HK": "在香港特別行政區訴楊楚明 [2004] 1 HKLRD 136案，上訴法庭經考慮多宗和主審法官向陪審團作出的指引是否持平及公正有關的案例後，列出以下兩項法律原則（見判案書第145頁）：" } }, { "doc_id": 121, "seg_id": 79, "translation": { "en": "“(a)the judge should not usurp the jury’s function of being the sole arbiter of facts. Hence, in the summing-up, the expressions and comments made by the judge in the course of the summing-up should not give the impression that the judge was directing the jury to accept his views on the facts;", "zh-HK": "“(一)法官不可剝奪陪審團為事實方面唯一裁斷者的職權，因此在總結講辭中，法官的用語及評論不應使人覺得法官好像指示陪審團接納他自己對事實的意見或看法；" } }, { "doc_id": 121, "seg_id": 80, "translation": { "en": "(b)The expressions and comments made by the judge in the course of the summing-up should not give the impression that the judge was making another speech for the Prosecution.”", "zh-HK": "(二)法官在總結講辭中採用的詞言及評論，不可使人覺得總結講辭好像是另一篇控方陳詞。”" } }, { "doc_id": 121, "seg_id": 81, "translation": { "en": "The Court has to emphasize that when a trial judge sits together with the jury in a criminal case, he must deliver his summing-up in an accurate, comprehensive and fair manner. In this regard, the Court reiterates the following passages at paras. 29-33 of the judgment of HKSAR v Zhu Jinni [2012] 4 HKLRD 444:", "zh-HK": "本庭需強調，主審法官會同陪審團審理刑事案件時向陪審團作出的指引必須正確、全面及公平。就此，本庭覆述上訴法庭在香港特別行政區訴朱金妮 [2012] 4 HKLRD 444案在判案書第29-33段作出的以下表述：" } }, { "doc_id": 121, "seg_id": 82, "translation": { "en": "As this Court has repeatedly stressed, in a criminal trial conducted in the High Court, the judge and the jury play different roles.  The judge is the sole arbiter of law, whereas the jury is the sole arbiter of facts.  The jury must regard the judge’s directions on matters of law as inviolable rules and strictly follow them.  On the other hand, the judge should as far as possible leave it to the jury to make such decisions on factual issues as they consider appropriate.", "zh-HK": "本庭屢次強調，在高等法院刑事審訊，主審法官和陪審團扮演不同角色。主審法官是法律的唯一裁決者，而陪審團則是事實的唯一裁決者。陪審團必需視主審法官就法律問題上給他們的指引為金科玉律，要絕對遵從。主審法官亦應盡量放手，由陪審團就事實議題作出他們應（認）為合適的裁決。" } }, { "doc_id": 121, "seg_id": 83, "translation": { "en": "When the judge sums up the facts of the case for the jury, he is certainly entitled to express his views on the facts, but in doing so he must exercise caution and restraint.  He must keep what he says in check as far as possible and avoid expressing too vigorously his own inclinations on factual issues.", "zh-HK": "在向陪審團總結案情時，主審法官當然有權就事實議題表達一些意見，但就事實議題表達意見時，主審法官必需慎重及克制地行事，並要盡量抑制，避免就事實議題過強表達自己個人傾向。" } }, { "doc_id": 121, "seg_id": 84, "translation": { "en": "By reason of his function and position, the jury will very likely attach great importance to the views expressed by the judge.  If the judge expresses his strong inclinations on the factual issues, the effect on the jury is obvious.", "zh-HK": "主審法官的職能和地位極會令陪審團非常重視主審法官的意見。如主審法官就事實議題向陪審團表達自己強烈的傾向，對陪審團的影響是顯而易見的。" } }, { "doc_id": 121, "seg_id": 85, "translation": { "en": "The merit of the jury system is that in a criminal trial, a certain number of lay citizens are able to make such collective decisions on factual issues as they consider appropriate, by drawing on their common sense and social experience.", "zh-HK": "陪審團制度的好處是在刑事案件中，由多名無專業知識的一般市民，就事實的爭議，根據他們的普通常識和社會經驗，作出他們認為恰當的整體裁決。" } }, { "doc_id": 121, "seg_id": 86, "translation": { "en": "If the judge expresses to the jury his strong views and inclinations on factual issues, then not only he is usurping the function of the jury, but also he may cause a reasonable bystander to think that the defendant is not receiving a fair trial.”", "zh-HK": "如主審法官就事實爭議向陪審團表達其強烈的個人意見及傾向，則主審法官不但篡奪了陪審團的職能，更可能會令合理的旁觀者認為被告人面對的審訊不公平。”" } }, { "doc_id": 121, "seg_id": 87, "translation": { "en": "The Court is of the view that as a whole, the summing-up of the trial judge had not met the standards of fairness and justice as required in law.", "zh-HK": "本庭認為，整體而言，原審法官的總結講辭未能達到法律所要求的持平及公正。" } }, { "doc_id": 121, "seg_id": 88, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 121, "seg_id": 89, "translation": { "en": "After considering the circumstances of the case as a whole, the Court has come to the view that the directions by the trial judge to the jury on the case had not been sufficiently comprehensive, nor did it meet the standards of fairness and justice. Under the said circumstances, the verdict of conviction reached against the Applicant is unsafe.", "zh-HK": "本庭已考慮過案件的整體情況。本庭認為原審法官就案件給予陪審團的指引不夠全面，亦不符合持平及公正的要求。在上述情況下，針對申請人的定罪裁決是不穩妥的。" } }, { "doc_id": 121, "seg_id": 90, "translation": { "en": "Hence, the Court grants the Applicant leave to appeal against his conviction, and treating the hearing as the appeal proper, we allow the appeal and quash the conviction against him as well as the sentence.", "zh-HK": "因此，本庭批准申請人就定罪上訴，並視他的申請為正式上訴。本庭裁定申請人上訴得直，並撤銷針對他的定罪及判刑裁決。" } }, { "doc_id": 121, "seg_id": 91, "translation": { "en": "In view of the fact that the offence of the present case was extremely serious, and the evidence against the Applicant was also very strong, the Court accepted the Prosecution’s application and ordered the case to be remitted to the Court of First Instance for retrial. We also ordered that the Applicant shall continue to be remanded in custody, pending the retrial.", "zh-HK": "本案的控罪極為嚴重，而針對申請人的證據亦是強而有力的。因此，本庭接納控方的申請，下令案件要發還原訟庭重審。本庭同時下令申請人要繼續還押，等候重審安排。" } }, { "doc_id": 121, "seg_id": 92, "translation": { "en": "Andy Hung, instructed by Tang, Wong & Chow, assigned by the Director of Legal Aid, for the Applicant", "zh-HK": "答辯人：由律政司高級檢控官黃俊賢代表。" } }, { "doc_id": 121, "seg_id": 93, "translation": { "en": "Wong Chun Yin, Nicholas, Senior Public Prosecutor of the Department of Justice, for the Respondent", "zh-HK": "申請人：由法律援助署委派鄧王周廖成利律師行轉聘大律師孔慶碩代表。" } }, { "doc_id": 122, "seg_id": 1, "translation": { "en": "Leong J. (delivering the judgment of the Court):", "zh-HK": "原訟庭法官梁紹中（宣讀上訴法庭判案書）﹕" } }, { "doc_id": 122, "seg_id": 2, "translation": { "en": "The applicant, LAI Wai-cheong, was convicted on two counts in the District Court, namely on the third count of Conspiracy to defraud and on the fifth count of Inviting another person to vote at an election, knowing that such person has made a false statement for the purpose of registering as a voter, contrary to s.14(1)(aa) of the «Corrupt and Illegal Practices Ordinance» (Cap. 288) of the Laws of Hong Kong. The district judge fined him 4,000 dollars on each of the two counts. The applicant now applies for leave to appeal against conviction on the two counts and to have the convictions quashed.", "zh-HK": "申請人黎偉昌在區域法院被裁定兩項控罪罪名成立。即控罪第三項﹕串謀詐騙罪和第五項﹕明知他人為了登記為選民已作出虛假的陳述﹐而在選舉中促請該人投票﹐違反香港法例第288章《舞弊及非法行為條例》第14(1)(aa)條。區域法院法官判他兩項罪名每項罰款4,000元。申請人不服﹐現針對兩項判罪提出申請上訴許可﹐要求推翻原判。" } }, { "doc_id": 122, "seg_id": 3, "translation": { "en": "According to the facts admitted by both the prosecution and the defence during the trial, the applicant was one of the candidates in the Tai Po Market District Board Election in June 1994. The legislation provides that only those who have registered as voters in the Tai Po Market constituency may vote in that constituency at that election. For a person who wishes to apply for registration as a voter in that constituency, his principal place of residence has to be within the boundary of that constituency. He must sign and fill in his particulars in his application, including his principal place of residence.", "zh-HK": "根據控辯雙方於審訊時承認的事實﹐申請人是1994年6月大埔墟區議會選舉候選人之一。根據法例﹐只有在大埔墟選區正式登記為該區選民﹐才可以在該選區該次選舉中投票。要申請登記為該區選民的人的主要寓所地址﹐必須在該選區範圍內。並須簽署及填上申請人的詳情﹐包括主要寓所地址。" } }, { "doc_id": 122, "seg_id": 4, "translation": { "en": "The evidence in support of the charges came mainly from the evidence of PW3 and Exhibit No.5. PW3 stated that he had known the applicant and the applicant's wife since childhood. He addressed the applicant as elder brother. In June 94, the applicant telephoned the witness and said that he was to stand for the Tai Po Market District Board membership election. He requested the witness to vote for him and to provide personal particulars to him. The witness subsequently gave his personal particulars to the applicant's wife.", "zh-HK": "支持控罪的証據主要是控方第三証人的証言和第五號証物。第三証人稱﹐他從小就認識申請人和申請人太太。他稱申請人為兄長。於94年6月申請人致電給証人﹐說他參選大埔墟區議會議員﹐要求証人投他一票﹐並且提供個人資料給他。証人其後將個人資料交給申請人的太太。" } }, { "doc_id": 122, "seg_id": 5, "translation": { "en": "At that time, the applicant knew that the witness lived in Nam Wah Po Tsuen, which was outside the Tai Po Market constituency. The witness also told the applicant over the phone that he used to vote at Nam Wah Po Tsuen. However, the applicant said that he could arrange for the witness to vote at Tai Po Market. The witness said that he had never applied for the registration nor signed on any registration form. Although his name appeared on Exhibit No.5 (Change of Address Form), he was not the one who signed it. He had never lived at the address shown in the form, i.e. M/F, 4 Wai Yan Street. On the polling day, he saw the applicant at the polling station. The applicant asked him to vote for the applicant.", "zh-HK": "當時﹐申請人是知道証人住在大埔墟選區外的南華甫村。証人在電話中亦告訴申請人他一向是在南華甫村投票的。但申請人稱他可以安排証人到大埔墟投票。証人稱他從沒有申請登記或簽署過登記表格。雖然証物5號（更改地址表格）有他的名字﹐但簽名的不是他。他從來沒住過表格上所填的地址 - 即懷仁街4號閣樓。在投票當日﹐他在投票站見到申請人。申請人叫他投申請人一票。" } }, { "doc_id": 122, "seg_id": 6, "translation": { "en": "The witness stated that on the day when the applicant telephoned him, he had said, \"Yuen Chai, I am Cheong Ko. I want to stand for the District Board membership election in Tai Po Market (constituency).\" Then they discussed something including the address of the witness. He recognised the person on the phone as the applicant because he clearly said, \"I am Cheong Ko.\"", "zh-HK": "証人稱當日申請人打電話給他時﹐曾說﹕「源仔﹐我係昌哥﹐我想係大埔墟區個度競選做區議員。」其後﹐他們討論証人的住址等問題。他認出對方是申請人﹐因為他說明「我係昌哥」。" } }, { "doc_id": 122, "seg_id": 7, "translation": { "en": "As regards the allegation that the person on the phone had said \"I am Cheong Ko\", the applicant did not take issue, and there was no evidence to show that it was not true either. However, the applicant in his defence denied that he had talked with the witness on the telephone or asked the witness to vote for him.", "zh-HK": "對於証人說對方在電話中曾說「我係昌哥」一點﹐申請人未能提出爭議﹐也沒有証據顯示這不是真實的。不過﹐申請人自辯﹐否認曾與証人在電話交談和叫証人投他一票。" } }, { "doc_id": 122, "seg_id": 8, "translation": { "en": "The trial judge accepted the evidence of PW3. The judge found that the applicant had telephoned the witness, and the witness agreed to support the applicant to stand for the District Board membership election in the Tai Po Market constituency and also gave his personal particulars to the applicant's wife. The applicant knew that the principal place of residence of the witness was not within the boundary of the Tai Po Market constituency but he registered for the witness with a false address so that the witness could become a voter in the Tai Po Market constituency and then nominate the applicant as a candidate to stand for the District Board membership election in that constituency. Subsequently, the applicant, knowing that the witness could not vote legitimately in the Tai Po Market constituency, still invited the witness to vote there. Therefore, the act of the applicant was sufficient to constitute the two offences.", "zh-HK": "主審法官信納第三控方証人的証言﹐裁斷申請人曾致電話給証人﹐証人同意支持申請人在大埔墟選區參選為區議員。並將他的個人資料交給申請人的太太。申請人知道証人的主要寓所﹐並非在大埔墟選區範圍內。卻用假地址替証人登記﹐以便証人能成為大埔墟選區的選民。從而可以提名申請人為候選人﹐參選該區區議員。其後申請人﹐更明知証人不可能合法地在大埔墟選區投票﹐仍促請証人在該處投票﹐所以申請人的行為足以構成兩項控罪。" } }, { "doc_id": 122, "seg_id": 9, "translation": { "en": "The grounds of appeal touch on various aspects.", "zh-HK": "上訴理由有多方面。" } }, { "doc_id": 122, "seg_id": 10, "translation": { "en": "There was no evidence to prove that the applicant did conspire with LAU Cham-yuen to defraud the Registration and Electoral Office;", "zh-HK": "無証據証明申請人曾串同劉湛源詐騙選舉事務處﹔" } }, { "doc_id": 122, "seg_id": 11, "translation": { "en": "The judge did not remind herself to be particularly prudent handling the reliability of the identification evidence;", "zh-HK": "法官沒有就認定証據的可靠性﹐提醒自已須要特別謹慎﹔" } }, { "doc_id": 122, "seg_id": 12, "translation": { "en": "The judge wrongly used the contents of the telephone conversation between the witness and \"Cheong Ko\" as grounds for conviction;", "zh-HK": "法官錯誤的以証人和「昌哥」電話談話內容﹐支持定罪﹔" } }, { "doc_id": 122, "seg_id": 13, "translation": { "en": "Without any legal justification, the judge stopped the lawyer for the appellant from cross-examining the witness on how he was able to recognise the voice of the applicant;", "zh-HK": "法官無法理依據﹐阻止上訴人代表律師就証人如何能認出申請人的聲音盤問証人﹔" } }, { "doc_id": 122, "seg_id": 14, "translation": { "en": "The prosecution did not have any evidence to prove that the applicant did invite the witness to vote. The fifth count was not proved.", "zh-HK": "控方沒有証據証明申請人有促請証人投票。第五項罪名是不成立的。" } }, { "doc_id": 122, "seg_id": 15, "translation": { "en": "A conspiracy offence involves two or more persons who have reached an agreement to do an unlawful act or to do a lawful act by unlawful means. It is not easy to prove a conspiracy offence. Usually, there are only two ways. The first one is for the conspirators to confess to the police and disclose that they have reached an agreement with the other person(s) to carry out an unlawful practice, or for one of the conspirators to give evidence against the other parties to the conspiracy and reveal what agreement has been reached. The second way is to draw an inference from the subsequent acts of the conspirators as to whether they have previously reached an agreement and then carried it out accordingly. The court can objectively analyse and draw the appropriate inference from proven or undisputed facts. If the only reasonable conclusion that can be drawn is that the conspirators must have reached an agreement, or else a series of acts would not have been carried out, then this is sufficient proof. With regard to the first ground, the evidence accepted by the judge covered not only the telephone conversion between the witness and the applicant, but also the undisputed facts including the obtaining of the witness’s personal particulars by the applicant’s wife, the change of residential address form which had not been signed by the witness, the form signed by the witness for nominating the applicant to be a candidate, the vote given for the applicant by the witness in the Tai Po market constituency, etc. The judge was entitled to draw an inference from these facts. The evidence for the third count of conspiracy to defraud turns on the proof of the existence of a dishonest agreement between the applicant and the witness in arranging the witness, who lived at Nam Wah Po Tsuen, Tai Po, to vote in the Tai Po Market constituency by fraudulent means together with the proof that the applicant was party to this agreement. The evidence accepted by the judge was sufficient to prove that the applicant knew that the witness lived outside the Tai Po Market constituency, that it was impossible for him to vote in that constituency and that therefore, he made an agreement with the witness to arrange for the witness to be a voter in the Tai Po Market constituency so that the witness could nominate the applicant to be a candidate and finally vote in the Tai Po Market constituency. To achieve this objective, it was necessary to register a false address for the witness. Thus, there was sufficient evidence for the judge to draw such inference. The decision on this point is unchallengeable. The first ground of appeal does not stand.", "zh-HK": "串謀罪是涉及兩個人或以上達成協議去進行一些非法的行為或以非法的手段進行一些合法的行為。要証明串謀罪並不容易。通常只有兩種方法。第一﹐就是串謀者向警方自白﹐供出曾與其他人士達成協議去進行非法勾當或其中一個串謀者﹐指証其他有份串謀的人士﹐說出當時所達成什麼協議。第二﹐就是從串謀者他們其後的所作所為﹐去推論他們是否曾經達成協議﹐然後將之付諸實行。法庭是可以從已証明或不爭議的事實﹐用客觀分析及作出適當推論。如果所得的唯一合理結論是串謀者必然曾經達成協議﹐否則不會進行一連串的行動﹐那麼便是足夠的証明了。就第一點而言﹐法官信納的証據﹐不謹是証人與申請人的電話談話﹐還包括申請人太太取得証人的個人資料﹐証人沒有簽署的更改寓所地址表格﹐証人所簽署提名申請人為候選人的表格﹐還有証人在大埔墟選區投申請人一票等沒有爭議的事實。法官有權從這些事實作出推論。要証明第三項串謀詐騙罪﹐關鍵在於証明申請人與証人之間存著一項不誠實的協議﹐用欺騙方法安排身居大埔南華甫村的証人到大埔選區投票。而申請人有參與此項協議。法官所信納的証據﹐足以証明申請人知道証人在大埔墟選區以外居住﹐沒有可能在該區投票﹐所以與証人協議﹐安排証人成為大埔墟選區選民﹐以便証人可以提名申請人為候選人﹐最後在大埔墟選區投票。若要達致此目的﹐必須以虛假地址為証人登記。所以法官有足夠証據支持她作出如此推論﹐這項裁決﹐是無可質疑的。上訴第一點理由不成立。" } }, { "doc_id": 122, "seg_id": 16, "translation": { "en": "As to the second and third grounds, counsel for the applicant cited R v. Chan Wan Cheung & Li Ka Leung (Cri. App. 664/95). He submitted that the judge did not state in her judgment that in considering the identification evidence of the witness, she had followed the guidelines in Turnbull. Hence, no thought was ever given to the danger of supporting a conviction with this kind of evidence, and the conviction of the applicant was unsafe. In the case of Chan Wan Cheung & Anor, the Court of Appeal held that in trying cases involving identification evidence, if the Turnbull guidelines were not expressly quoted in the judgment, the district judge should at least give an indication, either expressly or by implication, that he had all along had in mind the danger of supporting a conviction with this kind of evidence. If this was not done, the conviction might be considered as unsafe and thus might be quashed.", "zh-HK": "至於第二和第三點﹐申請人代表大律師引述R v. Chan Wan Cheung & Li Ka Leung (Cri.App.664/95)為例。指法官在判詞中沒有說明她已遵照Turnbull一案的指引﹐考慮証人的認定証據。因此沒有顧慮以此類証據支持定罪所存在的危機﹐申請人的判罪是不穩當的。上訴法院在Chan Wan Cheung & Anor一案認為﹐地方法院法官在審理牽涉認定証據的案件時﹐如果沒有在判詞中明文引述Turnbull指引﹐最少應以明文或暗示方式﹐表示法官一直有顧慮以此類証據支持定罪的危險性。如果沒有這樣做的話﹐判罪可能被認為不穩當而被推翻。" } }, { "doc_id": 122, "seg_id": 17, "translation": { "en": "This Court agrees that the Turnbull guidelines are applicable to evidence of identification of appearance or voice, and they should be followed. However, the case of Turnbull was decided in the light of special circumstances where the identifying witness only had a fleeting glance of the suspect or heard the voice of the suspect for a short time and subsequently pointed out a stranger or an unfamiliar person based on what he had seen or heard. If the identifying witness and the suspect were already well acquainted, and the identification was solely based on their previous association, the judge need not follow the guidelines in Turnbull. The Court of Appeal had clearly indicated this point in the case of R v. Cheung Hay Din & Ors [1991] 1 HKC 250. The witness in this case knew the applicant and was also familiar with his voice and his manner of talking over the phone. Based on these two aspects, he recognised that it was the applicant who telephoned him. Therefore, the situation is not within the scope of the guidelines set down in the Turnbull case. Moreover, although the judge did not expressly state in her judgment that she had followed those guidelines and reminded herself of the need to deal with the identification evidence of the witness prudently, this does not indicate that the judge had overlooked this point. In the case of R v. Chau Chun Kwong (Cri. App. Case 142/95), Power, V.-P. of the Court of Appeal, pointed out, \"A District Court judge is not required to deal with every single aspect of the evidence placed before him as long as he makes it plain that he has considered all of that evidence when coming to his conclusion.\" As counsel submitted, counsel for both parties at the trial had already stressed in their submissions to the trial judge the significance of the identity of the caller. In her judgment, the judge also indicated that she fully understood the focus of this case was on whether the person who telephoned the witness was the applicant. Before drawing her conclusion, she had taken all the evidence into consideration.", "zh-HK": "本法庭同意Turnbull一案的指引﹐對以外貌或聲音作指認的証據都適用﹐而指引是應該加以遵循的。不過Turnbull一案是針對辨認証人只能在一剎那間見到可疑人外貌或短時間聽過可疑人口音﹐而事後憑所見過或聽過的去指出陌生人或不熟悉的人的特殊情況。如果辨認証人與可疑人本來已互相熟悉﹐認出他是純粹基於兩人以前的交往﹐這樣﹐法官是毋須跟隨Turnbull的指引。這一點上訴法院已在R v. Cheung Hay Din & Ors [1991]?1 HKC?250一案清楚地指明。本案証人是認識申請人又熟悉他的聲音及說電話時的習慣﹐根據這兩方面﹐他認出是申請人致電話給他。因此﹐這種情況不是在Turnbull案指引範圍內。再者﹐法官雖然沒有在判詞明文指出她已遵從該指引﹐自我警惕應對証人的指認証據審慎處理﹐但這並不表示法官忽略此點。在R v. Chau Chun Kwong (Cri.App.Case?142/95)一案﹐上訴法院鮑偉華副院長指出﹕「地方法院法官是不須要處理庭上証據的每一方面。他只須要明顯地表示他是考慮全部的証據後才下結論。」正如大律師所述﹐雙方律師在向主審法官的陳詞中已強調誰是來電人的重要性﹐法官在判詞中﹐亦充分表示出她完全掌握本案的焦點在於致電証人者是否申請人。在下結論前﹐她已考慮所有証據。" } }, { "doc_id": 122, "seg_id": 18, "translation": { "en": "The witness had known the applicant for years, and naturally he could recognise the applicant’s voice. The witness also said that usually when the applicant telephoned him, he would always identify himself first. If the person on the phone said, \"I am Cheong Ko\", the witness would immediately recognise him as the applicant. On that day, the person on the phone said that he was \"Cheong Ko\", and the conversation lasted for some time. There was a discussion about the witness's place of residence, and therefore it was not a brief conversation. By his own experience and from the manner and voice of the applicant in talking over the phone, the witness identified the one who telephoned him as the applicant. The judge was satisfied with this piece of evidence beyond reasonable doubt. In addition, right after the telephone conversation, the applicant’s wife collected the personal particulars of the witness and told the witness when to vote. This could support the witness’s version. The findings of the judge in this area are unchallengeable. There is nothing improper for the judge to use it as corroborative evidence.", "zh-HK": "証人與申請人相識多年﹐當然可以認出申請人的聲音。而且証人說﹐通常申請人來電話﹐必定先講出自已是誰。如果對方說「我係昌哥」的話﹐証人就立刻認出是申請人。那日﹐電話中的人說他是「昌哥」而且交談維持一段時間﹐討論過証人的住址。所以不是簡單的交談。証人憑他的經驗及申請人講電話的習慣和聲音﹐認定打電話給他的是申請人。這點証言﹐法官毫無疑問的信納為真實。而且緊接電話談話後﹐申請人的太太收取了証人的個人資料﹐並告訢証人何時往投票。這點可以支持証人所說。法官在這方面的裁斷﹐是無可質疑。法官以此支持定罪。並無不當。" } }, { "doc_id": 122, "seg_id": 19, "translation": { "en": "As to the fourth ground, the notes of proceeding show that the question raised by the defence and objected to by the prosecution was a hypothetical one. It was not a question based on the facts for the prosecution or points raised by the defence. It was unfounded and kind of fishing expedition. It was not necessary for the witness to answer this type of questions. The judge has the responsibility to guard against abusing the right of cross-examination and has the right to stop this type of questions. The notes of proceeding show that apart from stopping the applicant from asking this question, the judge did not prevent the applicant from further questioning. However, counsel for the applicant at the trial did not further pursue this line of cross-examination. There is nothing improper for the judge to act as she did in accordance with the law.", "zh-HK": "至於第四點﹐聆訊記錄顯示當時控方所反對的辯方問題是一項假設性問題﹐不是根據控方案情或答辯而發問的問題﹐是無根據而屬乎探索性的問題。對此類問題﹐証人是毋須回答。法官有責任防止一方濫用盤問權利﹐並有權制止發問此類問題。聆訊記錄顯示﹐法官除阻止申請人提問此題之外﹐並無阻止申請人續問﹐但申請人代表律師沒有跟進﹐放棄盤問。法官依法如此行事﹐並無不當。" } }, { "doc_id": 122, "seg_id": 20, "translation": { "en": "Counsel for the applicant pointed out that on the polling day, the witness had already decided to vote for the applicant. The prosecution did not have any evidence to prove that the applicant had \"invited\" the witness to vote. Counsel submitted that both \"invite\" and \"induce\" had the same definition, meaning to \"procure\", \"lead\" or \"solicit\" the act of others. He referred to the definition of the word \"induce\" given by Li J. in the case of Law Ming Tak @ Law Tak v. The Queen (Cri. App. 266/75) to support his argument. In that case, Li J. was of the opinion that the words \"induce\", \"invite\" and \"incite\" all had the same connotation. That is to say, all of them basically bore the meaning of \"solicit or encourage\", \"affect” or \"stimulate\". Counsel pointed out that in this case, the witness had already decided beforehand on how to vote, whether the witness would vote or how he should vote was not affected by the applicant. Therefore, the applicant did not \"invite\", and the fifth count was not proved.", "zh-HK": "申請人代表大律師指投票當日﹐証人早已決定往投申請人一票﹐控方沒有証據証明申請人「促請」証人投票。大律師謂「促請」與「誘使」有相同定義﹐意思是「促致」﹐「誘導」或「游說」他人的行為。他並引用Law Ming Tak @ Law Tak v. The Queen (Cri.App.266/75)一案李福善大法官對「誘使」一詞所下的定義﹐以支持他的論據。在該案﹐李大法官認為「誘使」﹐「促請」 和「煽惑」各詞﹐都有相同的含義。即基本上有「游說或慫恿」﹐「影響」或「激發」的意思。大律師指出在本案中﹐証人早已決定如何投票﹐証人投票與否或如何投票是不受申請人影響﹐所以申請人沒有「促請」﹐第五項罪名是不能成立的。" } }, { "doc_id": 122, "seg_id": 21, "translation": { "en": "The evidence accepted by the judge sufficiently proved that the applicant knew that it was not possible for the witness to vote legitimately in the Tai Po Market constituency. Since the applicant had reported a false residential address for the witness, the witness became eligible to vote at the polling station of that constituency on the polling day. The judge also accepted that the applicant had, at that polling station, asked the witness to vote for him. By inviting the witness to vote in false circumstances, the applicant committed the fifth count on the indictment. It was immaterial that the witness by that time had determined to vote or had decided on whom to vote for. The elements of this offence hinged not on what the witness thought at that time but on whether the applicant knew the false identity of the witness and whether he had invited the witness to vote in such a manner. The act of inviting was sufficient to constitute the offence. The last ground of appeal also does not stand.", "zh-HK": "法官所信納的証據﹐已確實証明申請人知道証人不可能合法地在大埔墟選區投票﹐後來因為虛報了証人的寓所地址,証人才能在投票日到該選區投票站投票。法官亦信納申請人在該投票站曾叫証人投他一票。因此﹐申請人是在虛假的情況下仍邀請証人投票﹐他已干犯第五項控罪。証人當時已決心投票或決定投誰人票是無關重要的。此項罪名的因素不在於証人當時的心態而在於申請人是否知道証人的虛假身份和是否有促請証人如此投票。邀請的行為足以構成控罪。最後一點上訴理由亦不成立。" } }, { "doc_id": 122, "seg_id": 22, "translation": { "en": "In the premises, the application for leave to appeal is refused.", "zh-HK": "基於以上所述﹐申請上訴許可駁回。" } }, { "doc_id": 122, "seg_id": 23, "translation": { "en": "Mr. Harry Macleod, Deputy Director of Public Prosecutions, and Mr. Robert Lee, Senior Government Counsel for HKSAR/Respondent", "zh-HK": "上訴答辯人﹕ 律政司副刑事檢控專員麥禮諾﹑高級政府律師李紹強代表" } }, { "doc_id": 122, "seg_id": 24, "translation": { "en": "Mr. C.S. Fu instructed by M/S Fan & Fan for the Applicant", "zh-HK": "上訴申請人﹕ 范仲瑜律師行傅昶生代表" } }, { "doc_id": 123, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 123, "seg_id": 2, "translation": { "en": "The three charges", "zh-HK": "三項控罪" } }, { "doc_id": 123, "seg_id": 3, "translation": { "en": "The Applicant was charged with the following three offences:", "zh-HK": "申請人被控以下三項控罪：" } }, { "doc_id": 123, "seg_id": 4, "translation": { "en": "Being an agent, conspiring to accept an advantage, contrary to sections 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance (Cap. 201 of the Laws of Hong Kong) and the common law;", "zh-HK": "作為代理人而串謀接受利益，違反《防止賄賂條例》（香港法例第 201 章）第 9(1)(a) 及 12(1) 條和普通法；" } }, { "doc_id": 123, "seg_id": 5, "translation": { "en": "Being an agent, conspiring to accept an advantage, contrary to sections 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance and sections 159A and 159C of the Crimes Ordinance (Cap. 200 of the Laws of Hong Kong);", "zh-HK": "作為代理人而串謀接受利益，違反《防止賄賂條例》第 9(1)(a) 及 12(1) 條和《刑事罪行條例》（香港法例第 200 章）第 159A 及 159C 條；" } }, { "doc_id": 123, "seg_id": 6, "translation": { "en": "Conspiracy to defraud, contrary to the common law.", "zh-HK": "串謀詐騙，違反普通法。" } }, { "doc_id": 123, "seg_id": 7, "translation": { "en": "The Applicant pleaded not guilty to the charges. After trial before Deputy District Judge Yim, the Applicant was convicted on all three charges. He was sentenced to imprisonment for 4 years for each of Charges (1) and (2), and the sentences were ordered to run concurrently. He was sentenced to imprisonment for 2 years for Charge (3), and 6 months of the term was ordered to run consecutively to the sentences for Charges (1) and (2). The total term of imprisonment was therefore 4 years and 6 months.", "zh-HK": "申請人否認控罪。案件經區域法院暫委法官嚴舜儀審理後，申請人被裁定三項罪名成立及被判處入獄四年六個月；當中第一及第二項控罪的刑期分別是四年監禁，兩項刑期同期執行，而第三項控罪的刑期是兩年監禁，其中的六個月與第一及第二項控罪的刑期分期執行。" } }, { "doc_id": 123, "seg_id": 8, "translation": { "en": "Furthermore, in respect of Charges (1) and (2), the Applicant was ordered to pay compensation in the respective sums of HK$800,000 and HK$650,000, totalling HK$1,450,000, to his employer AIG Finance (Hong Kong) Limited (hereinafter “AIG Finance”) (formerly known as “SPC Credit Limited” (hereinafter “SPC Credit”)). The Applicant applied for leave to appeal against the convictions.", "zh-HK": "另外，申請人就第一及第二項控罪需分別向其僱主美國國際信貸（香港）有限公司（‘美國國際’）（前稱‘美國太平洋信貸有限公司’）（‘太平洋’）賠償HK$800,000及 HK$650,000，合共HK$ 1,450,000 。申請人對定罪不服，提出上訴許可申請。" } }, { "doc_id": 123, "seg_id": 9, "translation": { "en": "Having heard the application, we refused to grant leave. We now set out our reasons for the decision.", "zh-HK": "本庭經聆訊後拒絕申請，以下是本庭的判案理由。" } }, { "doc_id": 123, "seg_id": 10, "translation": { "en": "Overview of the prosecution case", "zh-HK": "控方案情概覽" } }, { "doc_id": 123, "seg_id": 11, "translation": { "en": "Charges (1) and (2)", "zh-HK": "第一及第二項控罪" } }, { "doc_id": 123, "seg_id": 12, "translation": { "en": "The Applicant was formerly employed by AIG Finance as a branch manager. AIG Finance did not allow its employees to solicit or accept any advantage from customers in the course of business dealings. During the period between October 1990 and December 1999, the Applicant conspired with one Fung Bing Yan (馮炳仁) (hereinafter “Fung”) (i.e. PW2), a client of AIG Finance, and other persons concerned, whereby the Applicant, in his capacity as an agent of AIG Finance, assisted Fung and those other persons in obtaining loans from AIG Finance, and Fung provided the Applicant with an advantage whenever a loan was obtained.", "zh-HK": "申請人是美國國際的一名前分行經理。美國國際是不容許僱員在處理公司業務時向僱客索取或收受利益。1990年10月至1999年12期間，申請人串謀一名美國國際的客戶馮炳仁（‘馮’）（即控方第二証人），以他作為美國國際代理人的身份協助馮及其他有關人士取得美國國際的貸款，而馮會在獲得每筆貸款後向申請人提供利益。" } }, { "doc_id": 123, "seg_id": 13, "translation": { "en": "Charges (1) and (2) respectively covered the periods from October 1990 to 1 August 1996 and from 2 August 1996 to December 1999. During these two periods, Fung offered the Applicant bribes in the total sum of approximately HK$10,000,000.", "zh-HK": "涉及第一及第二項控罪的時間分別由 1990年10月至1996年8月1日及由1996年8月2日至1999年12月。馮於該兩段期間向申請人提供賄款合共約HK$10,000,000。" } }, { "doc_id": 123, "seg_id": 14, "translation": { "en": "Charge (3)", "zh-HK": "第三項控罪" } }, { "doc_id": 123, "seg_id": 15, "translation": { "en": "Charge (3) alleged that between October 1990 and August 1999 the Applicant and Fung conspired to defraud AIG Finance by agreeing to supply false information and documents to AIG Finance, thereby causing AIG Finance to grant the loans. The loans were secured by some pieces of land in the New Territories which were owned by Fung. Of the 7 pieces of land in question, 6 related to Charge (3). These securities were falsely described as “land on which buildings have been erected”. In fact, no building whatsoever had been erected on 5 of the 7 pieces of land on which 3-storey village houses were claimed to have been erected; and nothing other than a dilapidated house was found on another piece of land on which a 3-storey village house was claimed to have been erected.", "zh-HK": "第三項控罪指申請人與馮在1990年10月至1999年8 月期間串謀欺詐美國國際，兩人協議向美國國際提供虛假資料及文件，致令美國國際批出貸款。馮以位於新界的土地作為有關貸款的抵押品，在涉案的七塊土地中有六塊是與第三項控罪有關的，這些抵押品被虛假報稱為「已建有建築物的土地」，但事實上其中五塊報稱建有三層高的新界村屋的土地上並沒有任何建築物；而另外一塊報稱建有三層高的新界村屋的土地上就只有一間破屋。" } }, { "doc_id": 123, "seg_id": 16, "translation": { "en": "Details of the aforesaid 7 pieces of land were as follows:", "zh-HK": "上述的七塊土地的資料如下：" } }, { "doc_id": 123, "seg_id": 17, "translation": { "en": "The Remaining Portion of Lot No. 719 in Demarcation District (“DD”) No. 111 of Ha Che, Yuen Long (hereinafter “Property 1”)", "zh-HK": "元朗下輋第 111 約第 719 號地段餘段 （後稱為“物業1”）" } }, { "doc_id": 123, "seg_id": 18, "translation": { "en": "Lot No. 28 in DD No. 111 of Ha Che, Yuen Long (hereinafter “Property 2”)", "zh-HK": "元朗下輋第 111 約第 28 號地段（後稱為“物業2”）" } }, { "doc_id": 123, "seg_id": 19, "translation": { "en": "Lot No. 212 in DD No. 111 of Wing Ning Lane, Pat Heung, Yuen Long (hereinafter “Property 3”)", "zh-HK": "元朗八鄉永寧里第 111 約第 212 號地段（後稱為“物業3”）" } }, { "doc_id": 123, "seg_id": 20, "translation": { "en": "Lot No. 156 in DD No. 111 of Tai Shan Village, Pat Heung, Yuen Long (hereinafter “Property 4”)", "zh-HK": "元朗八鄉台山村第 111 約第 156 號地段（後稱為“物業4”）" } }, { "doc_id": 123, "seg_id": 21, "translation": { "en": "Lot No. 23 in DD No. 120 of Tin Liu, Yuen Long (hereinafter “Property 5”)", "zh-HK": "元朗田寮第 120 約第 23 號地段（後稱為“物業 5”）" } }, { "doc_id": 123, "seg_id": 22, "translation": { "en": "Lot No. 75 in DD No. 120 of Tin Liu, Yuen Long (hereinafter “Property 6”)", "zh-HK": "元朗田寮第 120 約第 75 號地段（後稱為“物業 6”）" } }, { "doc_id": 123, "seg_id": 23, "translation": { "en": "Ground Floor to 2nd Floor, Lots Nos. 36 and 37 in DD No. 111 of Wing Ning Lane, Pat Heung, Yuen Long (hereinafter “Property 8”)", "zh-HK": "元朗八鄉永寧里第 111 約第 36 及 37 號地段地下至二樓（後稱為“物業8”）" } }, { "doc_id": 123, "seg_id": 24, "translation": { "en": "Investigations by the Bank", "zh-HK": "銀行的調查" } }, { "doc_id": 123, "seg_id": 25, "translation": { "en": "By the end of 2000, Fung was indebted to AIG Finance for a sum in the range of HK$10,570,000 to HK$14,350,000. Upon investigations and re-valuation of the securities, AIG Finance found that the aforesaid pieces of land were in a state as described in paragraph 7 hereinabove, and that the actual values of the securities when the loans were granted were much lower than their estimated values.", "zh-HK": "2000年底馮欠美國國際的貸款額達 HK$10,570,000至HK$14,350,000。美國國際進行調查及重新對抵押品作出估價，發現上述第7段中所敍述的土地情況及有關的抵押品在獲批出貸款時的實際價值遠低於其估值。" } }, { "doc_id": 123, "seg_id": 26, "translation": { "en": "Investigations by the ICAC", "zh-HK": "廉政公署的調查" } }, { "doc_id": 123, "seg_id": 27, "translation": { "en": "The matter was subsequently investigated by the ICAC. Before the ICAC took any action, the Applicant left Hong Kong for the USA on 1 May 2002. On 27 October 2006, law enforcement officers arrested the Applicant in the USA pursuant to a warrant of arrest issued by the Hong Kong court. The Applicant agreed to return to Hong Kong for trial and was extradited back to Hong Kong by the ICAC on 3 January 2007.", "zh-HK": "案件其後由廉政公署展開調查。在廉署對申請人採取行動前，申請人於 2002 年 5 月 1 日離開了香港前往美國。申請人於 2006 年 10 月 27 日在美國被執法人員根據香港法庭頒發的通緝令逮捕。申請人同意回港受審，並於2007 年 1 月 3 日由廉署引渡回港。" } }, { "doc_id": 123, "seg_id": 28, "translation": { "en": "Fung’s evidence", "zh-HK": "馮的証供" } }, { "doc_id": 123, "seg_id": 29, "translation": { "en": "Apart from holding a full-time job as a legal clerk in a solicitors’ firm, Fung ran businesses in developing village houses and transporting containers. Fung became acquainted with the Applicant in 1986 and then introduced to the Applicant some potential clients who would like to obtain loans. When after a long lapse of time the loans were still not granted, Fung made enquiries with the Applicant, who replied that “those above want tea money of HK$5,000 to HK$7,000 for each transaction”. Fung then relayed the Applicant’s request to the clients, who then agreed to pay tea money. Subsequently the loans were approved, and the tea money given by the client was handed to the Applicant in cash by Fung.", "zh-HK": "馮的正職是一間律師行的法律文員，他還經營村屋發展及貨櫃運輸生意。1986 年馮認識申請人，之後他介紹一些想申請貸款的客戶給申請人認識。後來馮因貸款申請遲遲未批出向申請人查詢，申請人的答覆是：「上面要茶錢，每宗約HK$5,000 至HK$7,000」。馮將申請人的要求轉告有關客戶，該客戶同意繳付茶錢。後來貸款獲批核，馮將該客戶繳付的茶錢以現金形式交付申請人。" } }, { "doc_id": 123, "seg_id": 30, "translation": { "en": "Between October 1990 and July 1999, Fung and the Applicant entered into an agreement on the following terms. The Applicant would process the loan applications referred to him by Fung and submitted to AIG Finance. For any successful application for a loan not secured by landed property, Fung would give the Applicant tea money equivalent to 10% of the loan amount; for any successful application for a loan secured by landed property, the Applicant could obtain tea money in an indeterminate sum. Fung paid the bribes to the Applicant in cash except on one occasion when the money was paid by means of a cash cheque. Furthermore, the Applicant would introduce clients to Fung’s solicitors’ firm for the purpose of executing deeds, and Fung would give the Applicant a commission equivalent to 40% of the legal fees paid by each client.", "zh-HK": "在 1990 年 10 月至 1999 年 7 月期間，馮與申請人達成協議：申請人替他辦理向美國國際申請貸款事宜，在涉及沒有以房屋土地作為抵押品的申請成功批出後，馮會以該貸款額的一成作為給予申請人的茶錢；而在涉及有房屋土地作為抵押品的申請成功批出後，申請人則可索取無定額的茶錢。馮除了有一次提供賄款給申請人時是用現金支票外，其餘每次都是以現金來支付賄款的。另外，申請人會介紹客戶到馮的律師行訂定契約，馮會以每個客戶所支付的律師費的四成作為給申請人的回佣。" } }, { "doc_id": 123, "seg_id": 31, "translation": { "en": "The transactions in which Fung obtained loans through the Applicant and offered bribes to the Applicant are set out below:", "zh-HK": "馮經申請人安排獲得貸款及馮向申請人提供賄款的交易項目如下：" } }, { "doc_id": 123, "seg_id": 32, "translation": { "en": "On Fung’s evidence, he would be granted a larger loan amount where a building was erected on the mortgaged land. Fung sought assistance from a Lands Department Inspector and obtained from him some construction or occupation permits falsely alleged to have been issued by the Lands Department. The permits falsely claimed that some buildings were erected on the vacant lands mortgaged by Fung. The Applicant also demanded Fung to supply false income proof or false company accounts in respect of the loan applicants.", "zh-HK": "根據馮的証供，若果抵押的土地上建有建築物的話，他會獲批出較高的貸款額。馮向一名地政總署的地政督察尋求協助及從這名地政督察取得一些訛稱是地政總署簽發的建築或入伙批文，虛假地報稱馮用作抵押的空置土地上建有建築物。另外，申請人亦要求馮提供貸款申請人的虛假收入資料或虛假的公司帳目。" } }, { "doc_id": 123, "seg_id": 33, "translation": { "en": "Due to financial difficulties, Fung ceased to make any repayment to AIG Finance after he made repayment on 24 May 2000. He went to the Mainland on the same day. Later, the Applicant called Fung, informing him that a police officer had gone to the Mongkok Branch to check his documents and asking him not to return to Hong Kong. In late 2000, Fung was arrested at the border when he was returning to Hong Kong from the Mainland. He was granted bail and subsequently five charges were laid against him. The Applicant was involved in three of those charges, two being conspiracy to offer an advantage to an agent and the other being conspiracy to defraud.", "zh-HK": "馮因為經濟出現困難，在2000 年 5 月 24 日向美國國際還款後就再沒有繼續作出還款。同日他前往內地。之後他接到申請人的電話說有警員到旺角分行查看他的文件及叫他不要回港。在 2000 年底馮從內地回港時在邊境被捕，他獲准保釋，後來被起訴五項控罪，其中三項是與申請人有關的：其中兩項是串謀向代理人提供利益罪，另一項為串謀詐騙罪。" } }, { "doc_id": 123, "seg_id": 34, "translation": { "en": "Fung pleaded guilty before the District Court on 3 December 2002 and was sentenced to 45 months’ imprisonment on 14 January 2004. By the time he gave evidence in the present case, he had served his term and been released from prison.", "zh-HK": "馮於 2002 年 12 月 3 日在區域法院承認控罪及於 2004 年 1 月 14 日被判處 45 個月監禁。他就本案出庭作供時已經刑滿出獄。" } }, { "doc_id": 123, "seg_id": 35, "translation": { "en": "Apart from the present case, in December 2003 Fung gave evidence as a prosecution witness in a case against the Lands Department Inspector. On 9 December 1993, Fung pleaded guilty to obtaining a driving licence by using false information and was fined HK$3,000.", "zh-HK": "另外，馮於 2003 年 12 月就地政總署地政監督被控的一案出庭作控方証人。馮在 1993 年 12 月 9 日承認以虛假資料取得駕駛執照的控罪及被判處罰款 HK$3,000。" } }, { "doc_id": 123, "seg_id": 36, "translation": { "en": "Evidence of AIG Finance", "zh-HK": "美國國際的証供" } }, { "doc_id": 123, "seg_id": 37, "translation": { "en": "According to one Mr. Leung Tak Cheung (梁得彰) (PW1), the officer-in-charge of the “Mortgage and Loan Release Policy Department” of AIG Finance, a branch manager of the bank could freely select which solicitor or surveyor to engage when handling a loan application. The policy of the bank was that, upon a surveyor being selected, the branch manager would give instructions to the surveyor. The surveyor would first give a verbal valuation of the mortgaged land and would then prepare a written valuation report. Before making recommendations to the bank on the loan application, the branch manager had to obtain the verbal valuation. A formal valuation report would be prepared only after the loan application met with preliminary approval. Whether final approval of the loan application was to be granted or not would depend on the assessment in the formal valuation report.", "zh-HK": "根據美國國際有「抵押放款政策部」主管梁得彰（控方第一証人）的証供，銀行分行經理在處理貸款申請時是可以自行決定選用哪一位律師或測量師的。銀行的政策是在選定測量師後由分行經理向測量師發出指示。測量師會先作出抵押土地的口頭估價，繼而作出書面估價報告。分行經理向銀行推薦貸款申請前先要獲得口頭估價，待有關的貸款申請獲初步批出後才作出一份正式的估價報告，而貸款申請最終是否獲批出就要視乎正式估價報告所作出的評估。" } }, { "doc_id": 123, "seg_id": 38, "translation": { "en": "Evidence of Vigers", "zh-HK": "威格斯的証供" } }, { "doc_id": 123, "seg_id": 39, "translation": { "en": "On the evidence of the staff members of Vigers, only the Applicant had instructed the surveyors at Vigers to compile valuation reports. They testified that they would only make verbal valuations and formal valuation reports upon requests by AIG Finance. They would not disclose to the loan applicants the valuations of the properties, nor had they disclosed to Fung the valuations of his properties. They said that as the Applicant had not given them instructions for valuation in good time and the procedures of ascertaining the locations of the village houses were rather complicated, they were unable to obtain the maps for the relevant lots from the Lands Department to ascertain the exact locations of the houses. They could only rely on the Applicant and Fung, or someone appointed by them, to take the valuers to the lots in question for inspections. They made valuations of the lots, on which buildings were found, on the basis of the site inspections.", "zh-HK": "威格斯工作人員的証供顯示只有申請人一人曾向威格斯測量師作出估價報告的指示。他們供稱他們只會根據美國國際的要求作出口頭估價及正式估價報告，他們是不會向貸款申請人透露物業的估值，亦沒有告訴過馮有關他的物業的估值。他們說由於申請人指示他們提交估價的時間不充裕，而確定村屋位置的程序又頗為繁複，他們因此未能從地政署取得有關地段的地圖以確定物業的正確位置，唯有依賴申請人和馮或他們委派的人曾帶領威格斯的估價員到達有關的地段視察，而該地段上的土地是建有建築物的，他們是以當日視察土地的情況作出估價的。" } }, { "doc_id": 123, "seg_id": 40, "translation": { "en": "No evidence from the Applicant", "zh-HK": "申請人不作供" } }, { "doc_id": 123, "seg_id": 41, "translation": { "en": "The Applicant elected not to give evidence in his defence. Nor did he call any witness.", "zh-HK": "申請人選擇不作供自辯及不傳召任何証人。" } }, { "doc_id": 123, "seg_id": 42, "translation": { "en": "Findings by Judge Yim", "zh-HK": "嚴法官的裁決" } }, { "doc_id": 123, "seg_id": 43, "translation": { "en": "Judge Yim accepted Fung’s evidence and found that the Applicant knew that the information stated in the land documents was false. The Judge also held that the Applicant intentionally arranged for valuers at Vigers to be taken to other sites for inspections.", "zh-HK": "嚴法官接納馮的証供及裁定申請人是知道有關土地文件的資料是虛假的。另外，申請人是蓄意安排，令威格斯的估價員被帶到別的物業視察。" } }, { "doc_id": 123, "seg_id": 44, "translation": { "en": "Grounds of defence", "zh-HK": "答辯理由" } }, { "doc_id": 123, "seg_id": 45, "translation": { "en": "The Applicant advanced the following grounds of defence:", "zh-HK": "申請人所依賴的答辯理由如下：" } }, { "doc_id": 123, "seg_id": 46, "translation": { "en": "Fung fabricated his evidence in order to frame up the Applicant;", "zh-HK": "馮提供虛假証供誣衊申請人；" } }, { "doc_id": 123, "seg_id": 47, "translation": { "en": "The Applicant never received any advantage from Fung;", "zh-HK": "申請人沒有收取馮任何利益；" } }, { "doc_id": 123, "seg_id": 48, "translation": { "en": "The Applicant did not know that the information contained in the loan application documents supplied by Fung was false, nor did he have doubts about the truth and accuracy of the information;", "zh-HK": "申請人不知道馮向他所提供的貸款申請文件內的資料是虛假的，他亦沒有懷疑其真確性；" } }, { "doc_id": 123, "seg_id": 49, "translation": { "en": "The Applicant relied on the false information supplied by Fung in respect of the properties to obtain the verbal reports;", "zh-HK": "申請人是依賴馮所提供的虛假物業資料來索取口頭報告的；" } }, { "doc_id": 123, "seg_id": 50, "translation": { "en": "Fung arranged for the valuers at Vigers to carry out inspections at sites that matched the false information, as a result of which they provided valuation reports that were at variance with the facts;", "zh-HK": "馮安排威格斯估價員到與假資料相符的土地視察，致令威格斯估價員作出與事實不符的估價報告；" } }, { "doc_id": 123, "seg_id": 51, "translation": { "en": "Since 1996, because of his good relationship with Fung, the Applicant had become less vigilant and had been negligent in processing the documents submitted by Fung.", "zh-HK": "自1996 年開始，由於申請人與馮的關係良好，以致降低了警覺性，而疏忽地處理馮所提交的文件。" } }, { "doc_id": 123, "seg_id": 52, "translation": { "en": "Dealing with the evidence of an accomplice", "zh-HK": "從犯証供的處理" } }, { "doc_id": 123, "seg_id": 53, "translation": { "en": "Fung was an accomplice of the Applicant in respect of the present offences. The court has to be particularly cautious in dealing with the evidence of an accomplice who has turned his back to testify for the prosecution against a defendant. The reasons for this are obvious. The accomplice, who has participated in criminal activities, will hardly be a good and veracious witness. He may also have all sorts of personal reasons to incriminate the defendant. One reason is to obtain a benefit, such as a more lenient sentence for lessened culpability or a reduction in sentence if he had assisted the prosecution in securing the defendant’s conviction. He may also have grudges against the defendant and, as an act of revenge, turns his back and give evidence as a prosecution witness against the defendant.", "zh-HK": "馮是一名與申請人共同犯案的罪犯。法庭在處理一名從犯轉作控方証人去指証被告人時須特別小心。原因是顯而易見的：既然該名從犯是有份參與犯罪行為的人士，他不會是良好、誠實的証人。他亦有可能懷有各種私人的理由去指証被告人，希望藉此獲取利益，如減輕罪責以獲判較輕的刑期或者協助控方使被告人入罪可獲刑期扣減；他亦可能與被告人有私人因怨，為了報仇而轉作控方証人去指証被告人。" } }, { "doc_id": 123, "seg_id": 54, "translation": { "en": "Legal principles", "zh-HK": "法律原則" } }, { "doc_id": 123, "seg_id": 55, "translation": { "en": "Under the old law of Hong Kong, in convicting a defendant on the evidence of an accomplice, the court must warn itself that, in the absence of corroboration, it was dangerous to convict a defendant solely on the evidence of an accomplice. Having so warned itself, the court could convict the defendant on the evidence of an accomplice even though it was uncorroborated. As the rules relating to the warning were highly mechanical and technical, the legal requirement that the court had to give itself a warning has been abrogated by section 60 of the Criminal Procedure Ordinance (Cap. 221 of the Laws of Hong Kong). It is intended that, with the abolition of the rigid requirement, the court or the jury can focus on the assessment of all the supporting evidence and circumstantial evidence before giving due weight to the evidence of the accomplice. See R v Chu Ip Pui [1997] HKLRD 549.", "zh-HK": "香港的舊有法律是法庭在根據從犯的証供將一名被告人定罪時必須作出自我警告：除非案件有佐証(corroboration)，否則只依賴從犯的証供去作出定罪的裁決是危險的。如法庭在作出了自我警告後，就算案件沒有其他佐証，它仍然是可以根據從犯的証供將被告人定罪。由於有關的警告規則是極為機械性及技術性，故此在《刑事程序條例》（香港法例第 201 章）第 60 條中法庭必須首先作出自我警告的法律條文已被廢除，目的是在廢除了機械性的要求後，法官或陪審團將注意力集中在衡量所有支持控罪的証供及環境的証供上，然後才對從犯的証供給予適當的分量，見：R v Chu Ip Pui [1997] HKLRD 549。" } }, { "doc_id": 123, "seg_id": 56, "translation": { "en": "However, the abolition of the requirement that the court had to warn itself against the evidence of an accomplice, as well as the fact that the court can, as always, convict a defendant on the uncorroborated evidence of an accomplice, does not mean that the court is not bound to deal with the evidence of an accomplice seriously. In R v Makanjuola [1995] 1 WLR 1348, the English Court of Appeal pointed out (at 1351D) that a judge may give proper directions to the jury on the credibility of an accomplice in light of the facts of a particular case. Where there are extremities in the case, e.g. the evidence shows that the accomplice has lied in his testimony, or has made false allegations in the past, or has a hatred of the defendant, it is necessary for the judge to give the jury a clear warning that a safe and proper approach is to convict the defendant on the evidence of the accomplice where, and only where, there is other evidence in the case that supports the accomplice’s evidence.", "zh-HK": "雖然法庭需就從犯的証供作出自我警告的規定已被撤銷及一如既往可以在沒有佐証的情況下依賴從犯的証據來將一名被告人定罪，但這並不表示法庭不需要嚴謹地處理從犯的証供。英國上訴法庭在R v Makanjuola [1995] 1 WLR 1348 (1351D) 指出法官是可因應案件的個別情況就從犯証人的可信性對陪審團作出適當的指引。案件在出現某些極端的情況時，如証供顯示從犯在法庭作証時說謊、從犯之前曾作過虛假的指控、對被告人懷有仇恨等，法官就有需要向陪審團發出一個強烈的警告：一個穩妥的做法就是案件必須存有其他可支持從犯証供的証據才可根據他的証供將被告人定罪。" } }, { "doc_id": 123, "seg_id": 57, "translation": { "en": "Judge Yim’s views", "zh-HK": "嚴法官的立場" } }, { "doc_id": 123, "seg_id": 58, "translation": { "en": "The first two grounds of appeal put forward by the Applicant are directed at the way in which Judge Yim dealt with Fung’s evidence. Mr. Lawrence Lok, SC, leading Mr. Edwin Choy, Counsel for the Applicant, submits that Judge Yim had not properly dealt with Fung’s evidence.", "zh-HK": "申請人就本案提出的首兩項上訴理由都是針對嚴法官在處理馮的証供時的做法。代表申請人的駱應淦資深大律師及蔡維邦大律師指嚴法官沒有適當地處理馮的証供。" } }, { "doc_id": 123, "seg_id": 59, "translation": { "en": "It is obvious that Judge Yim clearly appreciated that Fung, as an accomplice, might have incriminated the Applicant by reason of self-interest. The following extracts from her judgment show that she repeatedly warned herself that she must cautiously approach Fung’s evidence:", "zh-HK": "在本案嚴法官明顯地清楚了解馮作為一名從犯有可能為了個人利益而作供指証申請人。從以下的判決節錄中可見她多次警惕自己必須小心處理馮的証供：" } }, { "doc_id": 123, "seg_id": 60, "translation": { "en": "It is to be noted that the prosecution is relying mainly on the evidence of the alleged accomplice Fung Bing Yan. Although Fung has pleaded guilty and served his custodial sentence, the present case involves other persons connected with Fung. When he first provided his witness statement, he was not yet sentenced. Furthermore, he joined the witness protection programme and was receiving government subsidies under ICAC’s arrangement. I remind myself to be cautious when dealing with his evidence.", "zh-HK": "注意控方主要依賴其聲稱的串謀共犯馮炳仁的證供，雖然馮認罪並服刑完滿，但本案涉及其他與馮有關的人，最初他提供證人供詞時並未判刑，此外他亦參加了證人保護計劃，正在接受廉署安排下的政府資訊，提醒自己需要謹慎處理他的證供。" } }, { "doc_id": 123, "seg_id": 61, "translation": { "en": "Fung gave evidence that on 3 December 2002 he pleaded guilty before the District Court to five charges, three of which involved the defendant, two being ‘conspiracy to offer an advantage to an agent’, and one being ‘conspiracy to defraud’ (see Exhibit P231). He testified at the trial of a Lands Department Inspector Lee Yui Yuen (李銳元) in December 2003. He was sentenced to 45 months’ imprisonment on 14 January 2004. He has now served the sentence and been released from prison. Besides, on 9 December 1993 he was convicted upon his own plea of obtain a driving licence by using false information and was fined $3,000. In view of the fact that the witness had over a long period of time been acting fraudulently for his own gain, I remind myself that I must assess his evidence with caution.", "zh-HK": "馮作證稱他在 2002 年 12 月 3 日在區域法院承認五項控罪，其中三項與被告有關，兩項為串謀向代理人提供利益罪，一項為串謀詐騙罪（參看證物 P231）。他在 2003 年 12 月在地政總署地政督察李銳元的審訊作證，在 2004 年 1 月 14 日被判 45 個月監禁, 現已刑滿出獄。此外，他在 1993 年 12 月 9日承認以假資料取車牌被定罪判罰 $3,000注意到證人曾長時間為個人利益而作欺詐行為，提醒自己要謹慎考慮他的證供。" } }, { "doc_id": 123, "seg_id": 62, "translation": { "en": "Under cross-examination, Fung agreed that he had received ICAC’s subsidies over the past year. Upon re-examination, [he] added that, since December 2002 when he joined the programme, he has received a total of more than $220,000 as government subsidies and rental subsidies, including monthly living expenses of $2,860 for him and his wife since his release from prison (i.e. approximately $57,000) and medical expenses of approximately $16,000. The defence submits that the witness had reasons for fabricating or exaggerating his evidence. It is to be noted that the subsidies provided by the ICAC to the witness, although of a limited amount, serve to provide him and his wife with some protection over their living. In light of this, I remind myself that I must assess his evidence with caution.’", "zh-HK": "盤問期間馮同意他近一年一直接受廉署資助。覆問時補充自 2002 年 12 月參加計劃至今收取了政府資助連租金共 22 萬多元，當中包括自他出獄後每月提供給他和太太的 $2,860 生活費（即約 $57,000），和約 $16,000醫療費。辯方案情指證人有作偽證或誇大證供的理由。注意到廉署向證人提供的資助雖然有限，但亦為證人兩夫婦提供了生活保障，提醒自己要謹慎考慮他的證供。’" } }, { "doc_id": 123, "seg_id": 63, "translation": { "en": "First ground of appeal", "zh-HK": "第一項上訴理由" } }, { "doc_id": 123, "seg_id": 64, "translation": { "en": "The Applicant’s first ground of appeal is that Judge Yim had not properly considered the factors that undermined Fung’s integrity. The first factor relied on by the Applicant was whether Fung had led the investigators at Vigers to the sites in question for inspections.", "zh-HK": "申請人在第一項上訴理由中指嚴法官沒有適當地考慮針對馮誠信的不利因素。申請人依賴的第一點因素是涉及馮是否曾帶領過威格斯的調查員到有問題的土地視察。" } }, { "doc_id": 123, "seg_id": 65, "translation": { "en": "Fung denied having led the staff members of Vigers to the sites in question for inspections. He said he had accompanied those staff members to check and see the village houses but denied having led them to inspect the properties in question. Judge Yim accepted Fung’s evidence. The Applicant submits that on the evidence Judge Yim had overlooked the possibility that Fung might have fabricated the evidence in this regard, and that she had also overlooked the adverse effect of such evidence on Fung’s integrity. A staff member of Vigers (PW5 Ho Kai Kwong (何繼光)) confirmed that the “Flat Viewing Agreement” (i.e. the “Written Instructions”) in relation to Property 6 contained the words “persons to be contacted for inspection, Mr. Fung”.", "zh-HK": "馮否認曾帶領威格斯的工作人員到有問題的土地視察。他說他曾陪同威格斯的工作人員去察看村屋，但不承認曾帶領他們去視察有問題的物業。嚴法官接納馮的証供。申請人指証據顯示嚴法官是忽略了馮就這方面有可能作出虛假的証供，她更忽略了這些証供對馮的誠信的負面影響。威格斯的一名工作人員（控方第五証人何繼光）確認涉及物業 6 的「睇樓紙」即「書面指示」上記載了以下的文字：‘persons to be contacted for inspection, Mr. Fung.’（即「視察土地的聯絡人：馮先生」）。" } }, { "doc_id": 123, "seg_id": 66, "translation": { "en": "Upon review of the valuation reports, staff members of Vigers found out that one Mr. Fung had led the valuers to inspect the properties;", "zh-HK": "威格斯員工在覆核估價報告時，發現有一名馮先生曾帶領估價員去視察物業；" } }, { "doc_id": 123, "seg_id": 67, "translation": { "en": "Most of Vigers’ Written Instructions indicated that one Mr. Fung was responsible for leading the valuers to inspect the properties in question.", "zh-HK": "在大部分威格斯的書面指示中都顯示有一位馮先生負責帶領估價員去審查有關的物業。" } }, { "doc_id": 123, "seg_id": 68, "translation": { "en": "In our view, while the contents of the Written Instructions could of course be regarded as relevant evidence, Judge Yim had also taken into account the oral evidence of the staff members of Vigers that they were not sure whether they were led by Fung to inspect the properties in question. In our view, it was for the trial judge to assess how much weight was to be attached to the evidence. Therefore, even if the Written Instructions mentioned that it was Fung who led the staff members of Vigers to inspect the properties in question, this does not mean that Judge Yim erred in accepting Fung’s evidence in this regard. Furthermore, even on Ho Kai Kwong’s evidence, he could not be sure that the Mr. Fung referred to in the Written Instructions was this Mr. Fung whom we are dealing with. As pointed out by Mr. Alex Lee for the Respondent, given that Fung had admitted that no building was erected on the properties in question, that the Lands Department approval documents submitted by him contained false information and that he had defrauded AIG Finance, there was simply no need for him to fabricate evidence in this regard.", "zh-HK": "本庭認為書面指示的內容當然可被視為有關連的証據，但嚴法官同時亦有考慮過威格斯工作人員的口頭証供，稱他們不肯定是否由馮帶領他們去審查涉案的物業。本庭認為評核証供應該給予多少份量的責任在於原審法官，故此就算書面指示提及過是馮帶領威格斯工作人員去審查涉案物業也不代表嚴法官接納馮這方面的証供是錯誤的。另外，就算根據何繼光的証供，他亦不能肯定書面指示中記載的馮先生是否就是馮本人。正如代表答辯人的高級助理刑事檢控專員李運騰說，既然馮已經承認了在有關的物業上是沒有建築物的、他所提交的地政署批文的資料是虛假的及他欺騙了美國國際，他根本無須就這方面作假証供。" } }, { "doc_id": 123, "seg_id": 69, "translation": { "en": "Furthermore, the Applicant submits that although Fung denied having attempted to bribe the staff members of Vigers, it would appear from the following that Judge Yim might have overlooked the fabricated evidence given by Fung in this regard:", "zh-HK": "另外，申請人指雖然馮否認曾經嘗試賄賂威格斯的工作人員，但從以下幾點來看，嚴法官有可能忽略了馮就這方面作出虛假証供：" } }, { "doc_id": 123, "seg_id": 70, "translation": { "en": "Fung admitted that he had given red packets containing cash of HK$2,000 to $3,000 to the staff members of Vigers during the Chinese New Year;", "zh-HK": "馮承認他曾經在農曆新年期間給威格斯員工內有 HK$2,000 至HK$3,000的紅封包；" } }, { "doc_id": 123, "seg_id": 71, "translation": { "en": "PW5 confirmed that, in the course of following up the sites in question, he received reports that Fung had attempted to give other colleagues red packets containing cash of approximately HK$10,000;", "zh-HK": "第五証人確認在跟進有關問題土地期間收到報告稱馮曾經嘗試給其他同事內有約 HK$10,000 的紅封包；" } }, { "doc_id": 123, "seg_id": 72, "translation": { "en": "A staff member of Vigers named Chong Chi Yan (莊志仁) testified that during the Chinese New Year in 1996, he visited Fung’s company. During the visit, Fung took out a wad of $1,000 banknotes and put them into a red packet. He then handed the red packet to Chong and said that it was lucky money for him and another staff member of Vigers. Chong estimated the total value of the wad of banknotes at HK$10,000. He immediately refused to take the red packet and, upon returning to his company, reported the “lucky money incident” for record purposes.", "zh-HK": "一名威格斯員工莊志仁証供稱，在 1996 年農曆新年他曾到過馮的公司。馮當時拿出一疊千元紙幣放進一個紅封包，然後將該紅封包交給他及說這是給他和一名威格斯員工的利是。莊估計這疊紙幣約有共約HK$10,000。他即時拒絕接受該紅封包及回到公司後將「利是事件」公開以備案。" } }, { "doc_id": 123, "seg_id": 73, "translation": { "en": "In our judgment, Judge Yim dealt with the relevant issues sufficiently. She stated in paragraph 38 of her judgment that:", "zh-HK": "本庭認為嚴法官其實已經充分處理了有關的議題。她在判決書第 38 段說：" } }, { "doc_id": 123, "seg_id": 74, "translation": { "en": "‘Leung Kim Wah (梁劍華) said that he reported the ‘lucky money incident’ to Ho Kai Kwong a few days after he learnt about it (i.e. in the beginning of 1996). However, on Ho Kai Kwong’s evidence, it was only when he was investigating some problems that he had found with the valuation of Fung Bing Yan’s property that he came to know that Fung Bing Yan had given lucky money to the subordinates. This is consistent with Chong Chi Yan’s testimony that in 2001, when Vigers inquired of him about the valuation of Fung Bing Yan’s property, he took the initiative to report the ‘lucky money incident’ to Ho Kai Kwong. After consideration, I have reservations about Leung Kim Wah’s testimony that he reported the incident to Ho Kai Kwong within days after he knew of it. After consideration, I accept the evidence of Ho Kai Kwong. In my view, the fact that Chong Chi Yan had been working for the company for only 9 months or so reflects that the staff members of Vigers were generally aware of Fung Bing Yan’s habit of giving lucky money during the New Year. They did not report the matter to their superior, thinking that it was not necessary to do so. After consideration, I accept Fung Bing Yan’s evidence that had not given tea money to the staff members of Vigers in order to have them prepare false valuation reports.’", "zh-HK": "‘梁劍華說他知悉“利是事件”後數天向何繼光報告（即1996 年初），但根據何繼光的證供他是在發現馮炳仁物業估價出問題後調查期間，才得知馮炳仁曾給利是下屬，此與莊志仁的證供指在 2001 年威格斯向他查詢馮炳仁物業估價時，他再主動向何繼光報告“利是事件”是一致的。考慮後對於梁劍華說知悉事件幾天已跟何繼光報告有保留。考慮後接納何繼光的證供，注意莊志仁當時只入職大半年，認為此反影威格斯員工普遍知道馮炳仁新年期間有派利是習慣，不認為須要呈報，故知道後亦無人向上報告。考慮後接納馮炳仁證供指他沒有給茶錢威格斯人員做假估價報告。’" } }, { "doc_id": 123, "seg_id": 75, "translation": { "en": "Another issue relates to the procedures by which Fung handed to his employer, i.e. the solicitors’ firm, the Lands Department approval documents containing the false information for the purpose of preparing “certified copies”. The Applicant contends that Fung knew that he had been working in that firm for years and that his colleagues placed great trust on him, and so he took advantage of the circumstances to defraud the firm and carry through his plan.", "zh-HK": "另外一項議題是關於馮將他獲得的虛假資料地政署批文交給他受僱的律師行作「確認副本」手續。申請人說由於馮知道他在該律師行工作多年，他的同事對他有很大的信任，所以他利用這些有利條件來欺騙律師行及使他的計劃得呈。" } }, { "doc_id": 123, "seg_id": 76, "translation": { "en": "In fact, Fung admitted that he had supplied the originals of the approval documents containing the false information to the solicitors’ firm for the purpose of preparing certified copies. His intention was to prepare false instruments. Judge Yim dealt with this issue in paragraph 31 of her judgment. We do not think that she had overlooked this issue.", "zh-HK": "其實馮已承認他將虛假資料批文的正本交給律師行作確認副本手續，意圖偽造虛假文書。嚴法官在判決書第 31 段已處理了這個議題。本庭不認為嚴法官忽略了這個議題。" } }, { "doc_id": 123, "seg_id": 77, "translation": { "en": "Another argument advanced by the Applicant relates to the size of the mortgage loans granted by the bank in respect of Property 8. Fung said that AIG Finance granted a 90% mortgage loan for Property 8, and not the usual 70% loan. Therefore, in respect of the three units of the Property, the red packets given by Fung to the Applicant as tea money each contained HK$20,000 and not just a few thousand or ten thousand dollars. However, according to the Admitted Facts, all three buyers of Property 8 said that the mortgage loans granted to them by AIG Finance were equal to 70%, and not 90%, of the purchase price of the Property. This shows that what Fung said was not the truth and that Judge Yim overlooked the evidence in this regard when determining the case.", "zh-HK": "申請人提出的另一個論點是關於銀行批出物業 8的按揭貸款的比率。馮說美國國際就物業8所批出的按揭貸款是九成而不是慣常的七成，故此馮就該物業的三個單位所給予申請人的茶錢是每個內藏HK$20,000 的紅封包而不是數千或一萬元左右。但根據同意案情的証供，三名物業 8 的買家均說美國國際批核給他們的按揭貸款比率是樓價的七成而非九成，這顯示馮說的並不是事實，而嚴法官在作出裁決時的確忽略了這方面的証供。" } }, { "doc_id": 123, "seg_id": 78, "translation": { "en": "We think that there were indeed discrepancies in the evidence concerning the sizes of the mortgage loans granted by the bank. Judge Yim stated in paragraph 73 of her judgment that she appreciated the discrepancies in this aspect. She said:", "zh-HK": "本庭認為有關銀行批出的按揭貸款比率的証供的確存有分歧，嚴法官在判決書第 73 段內說她理解有關方面的分歧，她說：" } }, { "doc_id": 123, "seg_id": 79, "translation": { "en": "‘The witness said he had to give commission to the defendant because AIG Finance could provide a 90% mortgage loan, and the percentage granted at the end of the day was not something he could control. The evidence shows that the witness had cash-flow problems in 1997 and to him it was very important to ensure that the buyer could obtain the loan smoothly because otherwise the transaction would fall through and he would then risk losing his cash income. It is understandable that the witness agreed to and did offer tea money to the defendant, who could ensure the approval of the loans.’", "zh-HK": "‘證人說他要給被告佣金因為美國國際可以提供九成按揭，認為最終以多少成數批出非他能控制，證供顯示證人在 1997 年現金周轉有困難，確保買家順利貸款對他很重要，否則要冒交易告吹，失去現金收入的風險，證人因被告能確保批出貸款，跟雙方協議而向被告提供茶錢可以理解。’" } }, { "doc_id": 123, "seg_id": 80, "translation": { "en": "In our view, there were sufficient reasons to support the Judge’s finding that Fung was a veracious witness.", "zh-HK": "本庭認為本案存有足夠的理據去支持法官裁定馮是一名誠實的証人。" } }, { "doc_id": 123, "seg_id": 81, "translation": { "en": "Second ground of appeal", "zh-HK": "第二項上訴理由" } }, { "doc_id": 123, "seg_id": 82, "translation": { "en": "Evidence in support of the accomplice’s allegations", "zh-HK": "支持從犯指控的証供" } }, { "doc_id": 123, "seg_id": 83, "translation": { "en": "The thrust of the Applicant’s second ground of appeal is that Judge Yim had not sought independent evidence to corroborate Fung’s evidence before she accepted Fung’s account. The Applicant submits that although the prosecution alleged that he had received advantages up to tens of millions of dollars from Fung over the years, no banking transaction documents had ever been produced to prove the alleged unusual transactions in the Applicant’s bank account. The Applicant also contends that although Fung said he had given him a cash cheque, the prosecution had never tendered any bank record in relation to the cheque. The Applicant further submits that although Fung claimed that whenever a mortgage loan in respect of the site in question was successfully granted, the Applicant would ask Fung to pay him 10% of the mortgage loan as a reward, the prosecution had never produced any banking transaction record between the relevant bank accounts.", "zh-HK": "第二項上訴理由的重點是申請人認為嚴法官在接納馮的証供之前沒有先尋求其他獨立的証據去支持馮的說法。申請人說雖然控方指他多年來收受馮數以千萬元的利益，但控方從沒有提供任何銀行戶口往來的文件以証明申請人的銀行戶口內有不尋常的金錢往來記錄。申請人又說馮說過他曾經給予他一張現金支票，但控方從沒有提供過有關該支票的銀行記錄。另外，申請人說馮聲稱在每一項有問題土地的按揭貸款成功獲批後，申請人都會向馮收取按揭貸款的一成作為報酬，但控方從沒有提供過有關帳目的銀行戶口往來記錄的文件。" } }, { "doc_id": 123, "seg_id": 84, "translation": { "en": "In the present case, it is true that the prosecution had not adduced evidence in relation to the bank accounts. This, however, would not debar Judge Yim from accepting the evidence that Fung had given bribes to the Applicant and that Fung had supplied false documents to the Applicant for the purpose of obtaining the loans. The two parties had been conspiring for as long as 10 years or so, and it was not impossible for the Applicant to have dealt with the bribes in cash without leaving any trace of having done so. Furthermore, as stated in paragraphs 40 and 41 hereinbelow, Judge Yim was entitled to rely on the facts of the case as a whole to hold that the Applicant had knowledge of the false information and, accordingly, that the Applicant did take part in the scheme with a view to obtaining an unlawful advantage. This being the case, Judge Yim was correct in finding that Fung had indeed bribed the Applicant. In other words, there was sufficient evidence in the case to support Fung’s allegations against the Applicant.", "zh-HK": "在本案，控方的確沒有提供過有關銀行帳目的証據，但這不表示嚴法官不可以接納馮支付賄款給申請人及馮提供虛假文件給申請人來獲取貸款的証供。雙方串謀的期間長達約十年，申請人不留痕迹地處理現金賄款並不是不可能發生的。另外，正如下文第40及41段所說嚴法官是可以根據整體案情來判斷申請人是知道有關的虛假資料，繼而裁定申請人是有份參與其事，他的目的是為了獲取不正當的利益。在這情況下，嚴法官裁定馮的確曾經支付賄款給申請人是正確的裁決。換句話說，本案是存有充分的証據可支持馮對申請人的指控。" } }, { "doc_id": 123, "seg_id": 85, "translation": { "en": "Whether the Applicant knew that the documents were false", "zh-HK": "申請人是否知道虛假文件" } }, { "doc_id": 123, "seg_id": 86, "translation": { "en": "The defence of the Applicant was that he did not know that the information in the documents in question was false. The Applicant said that according to the testimony of Leung Tak Cheung (PW1), when AIG Finance was processing Fung’s application for a mortgage loan, they did not notice anything wrong with the information in the documents. The bank had in place an internal mechanism for approving loans and reviewing documents, and the bank never noticed any irregularity in the application and approval processes. This, the Applicant submits, proved that the Applicant, just like AIG Finance, did not notice any problem with the documents submitted by Fung in support of the loan applications.", "zh-HK": "申請人的答辯理由是他不知道涉案的文件資料是虛假的。申請人指根據控方第一証人梁得彰的証供，美國國際在審批馮的按揭貸款申請時並沒有察覺文件的資料有不妥之處。雖然銀行內部有批核及複查文件的基制，但銀行從沒察覺申請及批核過程中出現不規則的現象，這可引証了申請人都是與美國國際一樣察覺不到馮的貸款申請文件存有問題。" } }, { "doc_id": 123, "seg_id": 87, "translation": { "en": "In our judgment, it did not follow from the bank’s failure to notice any problem with the information in the documents that the Applicant was also unable to notice anything wrong with such information. This was because, in processing the applications for mortgage loans, the bank was relying on and acting upon the recommendation reports prepared by the Applicant and the documents verified by him. On the evidence, the Applicant was responsible for first-stage assessment of the applications. In fact, Judge Yim also considered whether under the mechanism the bank would have noticed anything wrong with the information in the documents. She said:", "zh-HK": "本庭認為銀行未能察覺文件的資料有不妥之處並不能支持申請人也可察覺不到文件的資料有不妥的說法，因為銀行是依賴及根據申請人的推薦報告及申請人核實文件來審批按揭貸款申請的。根據証供，申請人是負責第一階段的評核工作。其實，嚴法官已經考慮過銀行在有關機制下會否察覺不到文件的資料有不妥之處一事。嚴法官說：" } }, { "doc_id": 123, "seg_id": 88, "translation": { "en": "‘Leung Tak Cheung said that, back in the time of SPC Credit, if an application was at variance with the company’s requirements for granting loans, e.g. the interest rate being applied for was lower than that set by the company, or the loan amount being applied for exceeded a specified upper limit (see Exhibit P48), then the applicant had to apply for a waiver. The branch manager was the most senior person in charge of a branch, and he reported to the district manager. For each application, there would be an officer recommending it, one endorsing it and one approving it. Each approving officer had his own authority. As there was this system of division of labour, the papers and information submitted by a client should already have been checked by the time of submission of a recommendation. The approving officer would rely on the contents of the loan proposal to make a decision, signing and approving the loan only when he considered it appropriate to do so. The company had a mechanism for randomly reviewing the applications after they had been approved. The witness thought that those who were familiar with the operation would know the concerns of the approving officers. The witness said that at the material time mortgage loans relating to village houses took up approximately 5% of the total mortgage loans. He added that in view of the changes in the senior staff of the company, those who were familiar with the operation would know the probability of an application being selected for review and of the areas on which the review would focus.’", "zh-HK": "‘梁得彰說在太平洋時代，若個案與公司放款受信的要求有抵觸須要申請豁免，例如申請較公司要求低的利率，或要求超過某種放款額的最高限制（參看證物 P48）。分行經理是分行最高負責人，再上是區域經理。每宗個案都會有推薦人，贊同人，和批核人，每個批核人員有不同權限。因為有分工制度，呈交建議書時應已審閱客人提交的文件和資料，批核人員作出批核決定時基於貸款建議書的內容，認為可以批才簽名批核的。公司有事後抽查個案的制度。認為熟悉運作的人會知道批核人員專注什麼事項。證人說在有關時間村屋的抵押貸款佔總按揭大約 5%，另注意有關時間公司高層曾變動，認為熟悉運作的人會知道個案被選中作事後覆核的機會率有多少，和覆核時會專注那些事項。’" } }, { "doc_id": 123, "seg_id": 89, "translation": { "en": "We do not think that the Applicant’s argument is cogent enough to render Judge Yim’s verdict less safe or less satisfactory.", "zh-HK": "本庭不認為申請人所提出的這一點論點可以削弱嚴法官判決的穩妥性。" } }, { "doc_id": 123, "seg_id": 90, "translation": { "en": "Evidence in support of the convictions", "zh-HK": "支持定罪的証供" } }, { "doc_id": 123, "seg_id": 91, "translation": { "en": "The most important issue in the present case is whether there was sufficient evidence to prove that the Applicant had taken part in the conspiracy to defraud. We think that Judge Yim had thoroughly considered the relevant evidence and concluded that such evidence was sufficient to support Fung’s allegation that the Applicant had taken part in the conspiracy. The matters considered by the Judge included:", "zh-HK": "本案最重要的議題是案件是否存有足夠的証據去証明申請人曾參與串謀詐騙一事。本庭認為馮法官已經充分考慮到有關的証據及認為有關的証據是足以支持馮對申請人參與詐騙的指控。嚴法官所考慮的包括以下各點：" } }, { "doc_id": 123, "seg_id": 92, "translation": { "en": "In 1990 and 1992, the Applicant was well aware that Fung was residing in Pik Shui House but reported Property 4 as his residence;", "zh-HK": "1990 年及 1992 年，申請人明知馮的居所是碧水樓，但卻呈報物業 4 為自住物業；" } }, { "doc_id": 123, "seg_id": 93, "translation": { "en": "In October 1990, the value of Property 4 was estimated by Vigers at $2,900,000, but in February of that year Property 4 was sold at a price of merely $230,000. The Applicant never expressed any suspicion about it;", "zh-HK": "1990 年 10 月，威格斯就估計物業 4作出的估價是值 290 萬，但該物業在同年 2 月的成交價祇有 23 萬。申請人對此從沒有表示懷疑；" } }, { "doc_id": 123, "seg_id": 94, "translation": { "en": "In January 1995, when the Applicant was processing the mortgage loan applications in relation to Properties 5 and 6, he accepted the balance sheet of Ngan Tak Li even though it had not been verified by an auditor. Furthermore, the Applicant never filled in the date of the “Deed of Equitable Mortgage”;", "zh-HK": "1995 年 1 月，申請人在處理物業 5 及 6 的按揭貸款申請時，竟接收銀得利未經核數師確認的收支報表。此外，申請人一直沒有在「衡平法按揭契約」上填寫日期；" } }, { "doc_id": 123, "seg_id": 95, "translation": { "en": "In February 1996, the Applicant allowed a loan to be released to Fung prior to execution of the mortgage loan documents in respect of Properties 5 and 6 and when the interest of the bank was not adequately safeguarded;", "zh-HK": "1996 年 2 月，申請人容許在物業 5 及 6 的按揭貸款文件仍未簽妥前及在銀行保障不足的情況下批出貸款予馮；" } }, { "doc_id": 123, "seg_id": 96, "translation": { "en": "The Applicant never questioned why Fung left Properties 5 and 6 vacant all along and repeatedly mortgaged them instead of selling them;", "zh-HK": "申請人從沒質疑馮何以一直將物業 5 及 6丟空，不將它們出售套現，反而一再將它們抵押；" } }, { "doc_id": 123, "seg_id": 97, "translation": { "en": "In early 1998, Fung applied to the bank for a loan under the name of To Chi Hung. The transaction records of To’s bank account were inconsistent with his income proof, but the Applicant never raised any query.", "zh-HK": "1998 年初，馮以陶志雄的名義向銀行申請借貸，陶的銀行往來記錄與其薪金證明不相符，但申請人沒有提出過任何質詢。" } }, { "doc_id": 123, "seg_id": 98, "translation": { "en": "Third ground of appeal", "zh-HK": "第三上訴理由" } }, { "doc_id": 123, "seg_id": 99, "translation": { "en": "The Applicant submits that the evidence in the case was insufficient to support the charge of conspiracy to defraud against the Applicant. We have dealt with the relevant evidence hereinabove and do not accept this ground of appeal.", "zh-HK": "申請人指本案沒有充分的証據足以支持控方對申請人串謀詐騙的指控。本庭已在上文處理了有關的証據。本庭不接納這項上訴理由。" } }, { "doc_id": 123, "seg_id": 100, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 123, "seg_id": 101, "translation": { "en": "We conclude that Judge Yim’s decision was correct and, accordingly, dismiss the application for leave to appeal against the Applicant’s convictions.", "zh-HK": "本庭認為嚴法官的裁決是正確的，故此本庭拒絕針對定罪的上訴許可申請。" } }, { "doc_id": 123, "seg_id": 102, "translation": { "en": "Mr Alex Lee, Senior Assistant Director of Public Prosecutions, for the Respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員李運騰代表。" } }, { "doc_id": 123, "seg_id": 103, "translation": { "en": "Mr Lawrence Lok, SC and Mr Edwin Choy, instructed by Reimer and Partners, for the Applicant.", "zh-HK": "申請人：由翁靜晶律師事務所轉聘駱應淦資深大律師及蔡維邦大律師代表。" } }, { "doc_id": 124, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案書：" } }, { "doc_id": 124, "seg_id": 2, "translation": { "en": "The Applicant and the 2nd defendant of the present case were jointly charged with one count of “conspiracy to steal”, contrary to section 9 of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong and sections 159A and 159C of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong. The Applicant was sentenced to 16 months’ imprisonment. He now seeks leave to appeal the sentence.", "zh-HK": "申請人與同案的第二被告人共同被控一項「串謀偷竊」罪,違反《盜竊罪條例》(香港法例第 210 章)第 9 條及《刑事罪行條例》(香港法例第 200 章)第 159A 及 159C 條。申請人被判16個月監禁。申請人現就刑期提出上訴許可申請。" } }, { "doc_id": 124, "seg_id": 3, "translation": { "en": "Facts", "zh-HK": "案情" } }, { "doc_id": 124, "seg_id": 4, "translation": { "en": "The facts revealed that between 2010 and 2011, the Applicant and the 2nd defendant worked for “Lick Sang Rice Limited” (“Lick Sang”) as a warehouse attendant and a driver respectively. Upon discovering that the quantity of white rice stored in the warehouse did not tally with the entries in the computer record, “Lick Sang” carried out an investigation. The Applicant admitted to “Lick Sang” on his own initiative that he conspired with the 2nd defendant to steal rice. The 2nd defendant would load more rice than what was ordered by customers onto the truck. Initially, he asked the Applicant to feign ignorance. Subsequently, he gave the Applicant a share of $10 per pack, which sum was eventually increased to as high as $30 to $40 per pack. On the other hand, the 2nd defendant would sell the stolen white rice to shops at a lower price to make a profit. The Applicant surrendered himself to the police and handed over $152,000 being the total sum he had received from the 2nd defendant. Apart from pleading guilty, he also gave evidence against the 2nd defendant in court as a prosecution witness. He admitted that he had in fact already spent $40,000 to $50,000.", "zh-HK": "案情顯示在 2010 年至 2011 年間，申請人及第二被告人分別是「力生米業有限公司」(「力生」)的倉務員及司機。由於「力生」發現存在倉庫的白米數量與電腦紀錄不相符，故此進行調查。申請人主動向「力生」承認與第二被告人串謀偷米，第二被告人會把較訂單多的米放上貨車，最初要求申請人裝作不知，後來以每包 $10分給申請人，最後更達每包 $30至 $40，第二被告人則把偷回來的白米以較低價格售予店鋪圖利。申請人把第二被告人給他共 $152,000交出及往警署自首。申請人除了認罪外更成為控方證人，在庭上指證第二被告人。申請人承認自己其實也已用了 $40,000 至 $50,000。" } }, { "doc_id": 124, "seg_id": 5, "translation": { "en": "District Judge Yiu adopted 2½ years’ imprisonment as the starting point. As the Applicant had pleaded guilty, handed over the stolen money on his own initiative and given evidence against the 2nd defendant in court, the Judge sentenced him to 16 months’ imprisonment.", "zh-HK": "區域法院法官姚勳智以 2½ 年監禁為量刑基準，由於申請人承認控罪，自動交出所獲贓款及出庭指證第二被告人，故此將刑期定為 16 個月監禁。" } }, { "doc_id": 124, "seg_id": 6, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理據" } }, { "doc_id": 124, "seg_id": 7, "translation": { "en": "Mr. Wong, Counsel for the Applicant, contends that the Judge should have adopted a lower starting point to reflect the difference between the Applicant’s culpability and that of the 2nd defendant. He submits that the 2nd defendant instigated the present offence and played a major role at the material times, but the Judge also adopted 2½ years’ imprisonment as the starting point in respect of the 2nd defendant. The 2nd defendant pleaded not guilty and was convicted after trial. As he had handed over some of the stolen money, the Judge sentenced him to 2 years and 3 months’ imprisonment. Taking into account the fact that the offence involved stolen money amounting to $2,786,000, we consider it appropriate for the Judge to adopt, as he did, 2½ years’ imprisonment as the starting point in respect of the Applicant. The “starting point” (in Chinese量刑基準, or量刑起點as it is commonly known) reflects the appropriate sentence for a first offender who has been convicted after trial of a particular type of offence or charge, absent any aggravating or mitigating factor specific to the case. See HKSAR v Ta Dinh Son also known as Bui Trong Khoai and Ngo Van Thanh CACC 348/2013.", "zh-HK": "代表申請人的王興偉大律師指姚法官應該採用一個較低的量刑基準，以反映申請人和第二被告人的不同罪責。王大律師指第二被告人是本案的始作俑者，他在犯案時扮演主要角色，但姚法官對第二被告人亦是採用 2½ 年監禁為量刑基準。第二被告人否認控罪，在審訊後被定罪。由於第二被告人交出部分贓款，姚法官將第二被告人的刑期定為兩年三個月監禁。在考慮控罪涉及偷竊款項達 $2,786,000，本庭認為姚法官將申請人量刑基準定為2½ 年是適當的做法。量刑基準或者一向所稱「量刑起點」是指法庭對一名初次犯罪的被告人，在審訊定罪後就某類罪行或其控罪所定的適當刑罰，但這基準並不包括案件特有的加刑或減刑因素，見：HKSAR v. Ta Dinh Son also known as Bui Trong Khoai and Ngo Van Thanh CACC 348/2013。" } }, { "doc_id": 124, "seg_id": 8, "translation": { "en": "Mr. Wong also argues that, on top of the one-third discount (i.e. 10 months) to which he was entitled for his guilty plea, the Applicant was given an additional reduction of only 4 months for surrendering the stolen money to “Lick Sang” on his own initiative and giving evidence against the 2nd defendant for the prosecution, and this reduction is (it is submitted) manifestly inadequate. With respect, we do not agree. According to the authorities, where an applicant has pleaded guilty and assisted the prosecution by giving evidence against other defendants in court, the reduction in sentence should be in the range of 45% to 50%. See HKSAR v Chan Sau Hing and another CACC 211/2001. The one-third discount for guilty plea is already subsumed in such a reduction. See Secretary for Justice v Lee Chun Ho Jeef [2010] 1 HKLRD 84. The Applicant’s term of imprisonment was reduced from 2½ years to 16 months. This 14-month reduction translates to approximately 47% of the starting point of 2½ years, which falls within the applicable range of reduction. We did not think that the Applicant can be given an extra reduction in this regard.", "zh-HK": "王大律師另指，若扣除因申請人認罪而應得的 ⅓ (即10個月)刑期扣減，申請人因為主動向「力生」交出贓款及協助控方指證第二被告人所獲得的額外扣減只是四個月，這是明顯不足的。本庭不同意這說法。根據案例，若果申請人認罪及協助控方出庭作證指證其他被告人，刑期扣減幅度應該是 45至50%，見：HKSAR v Chan Sau Hing and another CACC 211/2001。這扣減幅度是已經包括 ⅓ 認罪的扣減，見：Secretary for Justice v Lee Chun Ho Jeef [2010] 1 HKLRD 84。申請人的刑期從 2½ 年扣減至 16 個月，這 14 個月的扣減，大約是量刑基準 2½ 年的 47%。這符合適用的扣減幅度。本庭不認為申請人在這方面可獲得額外的扣減。" } }, { "doc_id": 124, "seg_id": 9, "translation": { "en": "Mr. Wong also complains that the offence came to light in December 2011 but it was not until March 2013 that the Applicant was first brought to court, and he had to wait a total of 20-odd months before he was sentenced on 29 August 2013. Mr. Wong submits that, for a case of theft in which the facts were relatively straightforward, the time spent awaiting trial can hardly be considered short. He argues that the Applicant should have been given an additional reduction. We agree with the Judge’s ruling that there had been no deliberate delay in prosecution. The Judge accepted the prosecution’s explanation that in 2012 the prosecution still had to carry out extensive investigations including going through CCTV footage spanning a number of months, going through a large quantity of computer transaction records, enquiring into the 2nd defendant’s bank accounts, seeking advice from the Department of Justice, etc. Once judicial proceedings have gone underway, the length of the wait for trial is not something completely within the prosecution’s control. We did not think that a further reduction in this regard is warranted.", "zh-HK": "王大律師亦指案件於 2011 年 12 月曝光，但申請人是到 2013 年 3 月才首次被帶上法庭。申請人是在 2013 年 8 月 29 日被判刑，他前後需要等待了 20 多個月。王大律師認為對於一件案情頗為簡單的偷竊案，這候審期是不可謂不長。他認為申請人應該獲得額外的扣減。本庭同意姚法官的裁決，控方沒有刻意拖延檢控。姚法官接納控方的解釋，在2012年間控方仍需要進行多方面的調查，包括翻查長愈多個月的閉路電視、電腦紀錄的大量買賣紀錄、查詢第二被告人的銀行帳戶及獲取律政司的意見等等。當案件進入司法程序後的候審時間並非控方可以完全控制。本庭不認為在這一方面應該給予進一步的扣減。" } }, { "doc_id": 124, "seg_id": 10, "translation": { "en": "However, in our view, the Judge had failed to give the Applicant an appropriate reduction of sentence on account of his surrendering himself to the police and immediately returning the stolen money. In respect of the 2nd defendant, who was convicted after trial, the Judge reduced his sentence by 3 months to reflect his having made restitution of $430,000 of the stolen money to the police. In our judgment, the 47% reduction given to the Applicant reflects only his guilty plea and assistance to the police, and he should be given a further reduction of 4 months to reflect this mitigating factor. See HKSAR v Leung Shuk Man [2002] 3 HKC 424 and HKSAR v Wong Mei Heung CACC 273/2010. Ms. Chiu, Senior Public Prosecutor for the Respondent has conceded that there is room for a downward adjustment to the sentence on that ground.", "zh-HK": "但本庭認為姚法官未有就申請人自首及即時交還贓款給予適當的扣減。雖然第二被告人是經審訊定罪，但姚法官仍然給予他三個月扣減，以反映他將 $430,000 的贓款歸還給警方。本庭認為申請人所獲得 47% 扣減只能反映他認罪及協助警方的因素，本庭認為他是應該再獲多四個月的扣減，以反映這個求情因素，見：HKSAR v. Leung Shuk Man [2002] 3 HKC 424 及 HKSAR v. Wong Mei Heung CACC 273/2010。代表答辯人的控方高級檢控官招秉茵同意就這點刑期有下調的空間。" } }, { "doc_id": 124, "seg_id": 11, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 124, "seg_id": 12, "translation": { "en": "For the above reasons, we allow the application and, treating the hearing of the application as the appeal proper, we vary the sentence from 16 months’ imprisonment to 12 months’ imprisonment.", "zh-HK": "基於上述原因，本庭批准申請，視申請為正式上訴及將 16 個月監禁刑期更改為 12 個月。" } }, { "doc_id": 124, "seg_id": 13, "translation": { "en": "Ms. Samantha Chiu, Senior Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官招秉茵代表。" } }, { "doc_id": 124, "seg_id": 14, "translation": { "en": "Mr. Newman Wong, instructed by Messrs. Peter K.H. Wong & Co. and assigned by the Legal Aid Department, for the Applicant.", "zh-HK": "申請人：由法律援助署委派王吉顯律師行轉聘王興偉大律師代表。" } }, { "doc_id": 125, "seg_id": 1, "translation": { "en": "The applicant for leave to appeal (the Defendant) was originally charged with one count of Trafficking in Dangerous Drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, Laws of Hong Kong. The Defendant pleaded not guilty to the charge, and the trial was before District Judge Maggie Poon.", "zh-HK": "上訴許可申請人（即被告）原被控一項販運危險藥物的罪名，違反香港法例第134章《危險藥物條例》第4(1)(a)及(3)條。被告否認控罪，案件在區域法官潘敏琦席前審訊。" } }, { "doc_id": 125, "seg_id": 2, "translation": { "en": "After three days’ hearing, the Prosecution amended the charge to one of Possession of Dangerous Drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance. The Defendant pleaded guilty to the charge and agreed to the facts of the case. The agreed facts stated that at about 9 a.m. on 13 November, 1998, that is, at the time of the charged incident, the police searched the Defendant and found on him a total of 137 packets of white-coloured powder. After laboratory analysis, the powder was found to be 55.11 grams of a mixture containing 48.32 grams of heroin hydrochloride.", "zh-HK": "審訊進行了三天後，控方將控罪修改為管有危險藥物，違反該《危險藥物條例》第8(1)(a)及(2)條。被告承認控罪及同意案情。該同意案情指出，1998年11月13日上午9時左右，即案發當時，警方人員在被告身上搜出共137小包白色的粉末，經化驗後，證實該些粉末是55.11克的混合物，內含48.32克的海洛英鹽酸。" } }, { "doc_id": 125, "seg_id": 3, "translation": { "en": "After hearing the mitigation put forward by the lawyer for the Defendant, the judge sentenced the Defendant to 3 years’ imprisonment.", "zh-HK": "經聆聽代表被告的律師的求情陳詞後，法官判處被告入獄3年。" } }, { "doc_id": 125, "seg_id": 4, "translation": { "en": "The Defendant considers the sentence to be too heavy and has therefore filed an application for leave to appeal against sentence.", "zh-HK": "被告認為刑罰太重，故提出上訴許可申請，要求減刑。" } }, { "doc_id": 125, "seg_id": 5, "translation": { "en": "In her Reasons for Sentence, the trial judge pointed out that she had considered several precedents about the sentencing for possession of heroin and also the latent risk factor. She had taken 4 1/2 years’ imprisonment as the starting point, and with a 1/3 reduction for the Defendant’s plea of guilty, sentenced the Defendant to 3 years’ imprisonment.", "zh-HK": "在判刑理由書中，原審法官指出她曾考慮數件案例，都是有關管有海洛英罪行量刑的，而亦考慮到潛在風險的因素，以4年半作為量刑起點，於扣減因被告認罪的三分一後，判處被告入獄3年。" } }, { "doc_id": 125, "seg_id": 6, "translation": { "en": "The judge said in her Reasons for Sentence:", "zh-HK": "在判刑理由書中，法官曾說：" } }, { "doc_id": 125, "seg_id": 7, "translation": { "en": "“The more packets the dangerous drugs are packed into, the higher the risk they may end up in other people’s hands. Therefore, the Court must take note of the latent risk factor”;", "zh-HK": "“毒品被包裝成小包越多，它們落入其他人手中的風險便越大，所以法庭不得不留意存（應為“潛”）在風險因素（latent risk factor）。”；" } }, { "doc_id": 125, "seg_id": 8, "translation": { "en": "and", "zh-HK": "和" } }, { "doc_id": 125, "seg_id": 9, "translation": { "en": "“I do not consider taking the precedents involving ‘ice’ for reference regarding sentencing for a case about possession of heroin hydrochloride as appropriate.”", "zh-HK": "“本席認為以冰毒案例作海洛英鹽酸藏毒的量刑參考並不適合。”" } }, { "doc_id": 125, "seg_id": 10, "translation": { "en": "Counsel for the Defendant, Mr. Wong Po Wing, submitted that these two reasons were both incorrect. Mr. Wong pointed out that although “ice” and heroin were not the same category of dangerous drugs, the harm they would cause to the human body was similarly serious. Therefore, Mr. Wong suggested that the precedents about sentencing for possession of “ice” should be applicable to the sentencing for possession of heroin, or at least they were worthy of reference to the court.", "zh-HK": "代表被告的王寳榮大律師提出，此兩項理由，均是錯誤的。王大律師指出，雖然冰與海洛英不是同一類毒品，但是它們對人體的傷害程度則同等嚴重。故此，王大律師提議，有關管有冰量刑的案例，應適用於有關管有海洛英的量刑，而最少也值得法庭參考。" } }, { "doc_id": 125, "seg_id": 11, "translation": { "en": "As mentioned above, the trial judge considered it inappropriate to take the precedents involving “ice” as the sentencing reference for a case about possession of heroin hydrochloride. In considering the sentence to be imposed on the Defendant, the trial judge cited four cases of the Court of Appeal in relation to possession of heroin hydrochloride, but she did not cite any case about sentencing involving “ice”. She said,", "zh-HK": "如上述所言，原審法官認為以冰毒案例作海洛英鹽酸藏毒的量刑參考並不適合。原審法官援引四件上訴法庭有關管有海洛英鹽酸的案例，卻並沒有援引任何有關冰的量刑案例，以考慮被告所應被判之刑期。她說：" } }, { "doc_id": 125, "seg_id": 12, "translation": { "en": "“In Chiu Hung Wong (1993 Crim. App. No. 39 of 1993), the two Appellants were in possession of 14.37 grams and 16.31 grams of hydrochloride respectively. The Appellants pleaded guilty and were each sentenced to 2 years’ imprisonment.", "zh-HK": "“在趙鴻旺（譯音）(1993 Crim. App. No. 39 of 1993)一案中，兩名上訴人藏有鹽酸重量分別是14.37克以及16.31克，上訴人認罪，分別被判監兩年。" } }, { "doc_id": 125, "seg_id": 13, "translation": { "en": "In the case of Wong Yiu Kwan (Crim. App. No. 53 of 1995), the Appellant had in his possession a total of 46 packets of dangerous drugs, weighing in total 35.39 grams and containing 14.68 grams of heroin hydrochloride. The Appellant pleaded guilty. The Court of Appeal considered that the proper starting point was 3 years’ imprisonment, and with a 1/3 discount in sentence, the term was one of 2 years.", "zh-HK": "在黃耀群（譯音）（Crim. App. No. 53 of 1995）的案件中，上訴人管有一共46包共重35.39克的毒品，內含海洛英鹽酸是14.68克，上訴人認罪。而上訴法庭認為量刑起點應該是3年，在給予三分之一的量刑折扣之後，判監兩年。" } }, { "doc_id": 125, "seg_id": 14, "translation": { "en": "In the case of Lee Che Keung (Crim. App. No. 682 of 1996), the Appellant admitted to possession of 46.02 grams of dangerous drugs containing 35.23 grams of heroin hydrochloride. Although the Court of Appeal considered that the starting point of 4 1/2 years was open to question, it opined that the term of 3 years’ imprisonment after reduction was correct.", "zh-HK": "在李志強（譯音）（Crim. App. No. 682 of 1996）的案件中，上訴人承認管有46.02克的毒品，內含海洛英鹽酸35.23克。上訴庭認為以4年半作為量刑起點雖然可以有商榷的餘地，但是扣減之後的3年刑期，上訴庭認為是正確的。" } }, { "doc_id": 125, "seg_id": 15, "translation": { "en": "Lastly, in Chan Ching Ho (Crim. App. No. 409 of 1993), the Appellant was convicted after trial of possession of 112.5 grams of a mixture containing 62.81 grams of heroin hydrochloride. The Court of Appeal took the view that the sentence of 3 years’ imprisonment passed by the District Court was inadequate, and the sentence was finally increased to 4 1/2 years.", "zh-HK": "最後在陳清浩（譯音）（Crim. App. No. 409 of 1993）一案中， 上訴人在聆訊之後被裁定管有112.5克混合物，內含62.81克的海洛英鹽酸，控罪罪名成立。上訴庭認為區域法院所判的3年判刑是太輕，而最後將刑期提高至4年半。" } }, { "doc_id": 125, "seg_id": 16, "translation": { "en": "With reference to the above cases, the dangerous drugs with which the Defendant was involved in this case was 55.11 grams of a mixture containing 48.32 grams of heroin hydrochloride. The drugs were separately packed in 137 packets. I have considered the above precedents and the latent risk factor. I take 4 1/2 years as the starting point, and with a 1/3 reduction in sentence for the Defendant’s plea of guilty, he is sentenced to 3 years’ imprisonment.”", "zh-HK": "根據以上案件的參考，本案被告所牽涉的毒品是55.11克的混合物，內含48.32克的鹽酸海洛英。毒品分別被裝放在137小包之中，本席考慮以上的案例以及存（應為“潛”）在風險的因素， 以4年半作為量刑起點，由於被告認罪，予以三分之一的量刑扣減，判刑3年。”" } }, { "doc_id": 125, "seg_id": 17, "translation": { "en": "Prior to the case of Chiu Hung Wong, the sentence imposed by the courts for possession of heroin hydrochloride was comparatively lenient. However, in that case, the Court of Appeal took into account the amendment made to the Dangerous Drugs Ordinance which took effect on 26 June 1992, for the increase of the maximum penalty for breaching section 8(1)(a) and (2) of the Ordinance from a fine of $10,000 and imprisonment for 3 years to a fine of $1,000,000 and imprisonment for 7 years. Therefore, the Court of Appeal took the view that the sentence of 2 years’ imprisonment imposed by the trial judge on the appellant was neither wrong in principle nor manifestly excessive. In that case, the Court of Appeal also commented that the court should not ignore the latent risk, which arose from the quantity involved, that some of the dangerous drugs might be used for trafficking.", "zh-HK": "雖然在趙鴻旺之前，法庭判處管有海洛英鹽酸的刑罰較輕，但在該案中，上訴法庭考慮到自1992年6月26日起生效的《危險藥物條例》的修訂，把違反該條例第8(1)(a)和(2)條的最高刑罰由原先的一萬元罰款及監禁3年增至為一百萬元罰款及監禁7年，故上訴庭認為原審法官判處上訴人的兩年監禁刑期並無犯原則上錯誤，亦非明顯地過重。在該案中，上訴法庭亦說，法庭不應把對毒品的數量所產生的可能有部份毒品會被用作販賣用途的潛在風險，置諸不理。" } }, { "doc_id": 125, "seg_id": 18, "translation": { "en": "The case of Chan Ching Ho involved an application made by the defendant for leave to appeal against sentence and an application made by the Attorney General to the Court of Appeal for review of the sentence imposed on the defendant. In that case, the Court of Appeal took the view that the 62.81 grams of heroin hydrochloride involved in the case was in the most serious range covered by section 8 of the Dangerous Drugs Ordinance because the quantity was substantial.", "zh-HK": "陳清浩一案涉及被告要求減刑的上訴許可申請及律政司向上訴法庭要求覆核被告之刑期。在該案中，上訴法庭認為該案所涉之62.81克海洛英鹽酸是為《危險藥物條例》第8條所含蓋的最嚴重的一種，原因是數量太多。" } }, { "doc_id": 125, "seg_id": 19, "translation": { "en": "When comparing the above four precedents about sentencing for possession of heroin hydrochloride, the weight of heroin hydrochloride possessed by the Defendant in this case, namely 48.32 grams, is nearest to that involved in the case of Lee Che Keung. Therefore, on the face of it, Judge Poon cannot be criticized for having taken 4 1/2 years as the starting point and, with a 1/3 reduction for the Defendant’s plea of guilty, imposed a 3 years’ sentence.", "zh-HK": "比較以上四個有關管有海洛英鹽酸的量刑案例，本案的被告所管有的海洛英鹽酸的重量，即48.32克，與李志強者最為接近，故驟眼看來，潘法官以4年半作為量刑起點而因被告認罪扣減三分之一，判刑3年，未可厚非。" } }, { "doc_id": 125, "seg_id": 20, "translation": { "en": "In R v Lee Siu Lung, the applicant for leave to appeal pleaded guilty to two charges: (1) possession of 48.96 grams of a mixture containing 18.28 grams of heroin hydrochloride, and (2) possession of 3.37 grams of a mixture containing 1.23 grams of heroin hydrochloride. The trial judge sentenced the applicant to 2 years for charge (1) and 9 months for charge (2). However, he considered that the overall starting point for the two charges should be 2 1/2 years, and with the reduction for his plea of guilty, the sentence for the applicant was 2 years. When sentencing, the trial judge said that although the applicant claimed that the drugs found on him were for personal consumption, the judge, however, said he had no doubt that was true for some of the drugs seized from him. The Court of Appeal opined that the remark made by the trial judge implied that some of the drugs possessed by the applicant might be for purposes other than that of self consumption, and such consideration was wrong. The Court of Appeal considered that unless the applicant was convicted of Trafficking in Dangerous Drugs, the judge was not entitled to consider that the possessed drugs might be for purposes other than that of self consumption. This Court is satisfied that the sentencing approach mentioned by the Court of Appeal is correct and fair. If a defendant is charged with an offence of “possession” and not “trafficking”, it will be an error to bear “trafficking” in mind when considering sentence and that will also be unfair to the defendant. In this case, although the Defendant was originally charged with an offence of trafficking, after three days’ hearing, the Prosecution amended the charge to one of possession instead of trafficking. The Defendant immediately pleaded guilty to the charge and agreed the facts. If the Defendant is dealt with on the basis of the seriousness of trafficking, it would be extremely unfair.", "zh-HK": "在女皇訴李兆龍（譯音） 一案中，上訴許可申請人承認兩項控罪：(1)管有內含18.28克海洛英鹽酸的48.96克混合物，及(2)管有1.23克海洛英鹽酸的3.37克混合物。原審法官就第(1)項控罪判處申請人兩年監禁，而就第(2)項控罪則判處他9個月監禁。但他認為兩罪之總共量刑起點應為兩年半，在因認罪而作出扣減後，得出兩年作為申請人之判刑。在量刑時，原審法官說雖然申請人聲稱在他身上找到的毒品是他自用的，但是原審法官卻說這毫無疑問是有些在他身上找到的毒品的真正用途。上訴庭認為原審法官這句話暗指申請人管有的毒品部份可能作非自用的其他用途，這樣的考慮是錯誤的。上訴法庭認為，除非申請人是被判販運毒品的罪名成立，否則法官無權考慮管有的毒品可能被用在非自用的用途。本庭認為，上訴法庭所說的量刑方法，是正確及公平的。如果被告之罪名為“管有”而非“販運”，量刑時以“販運”的性質去作考慮，就是犯錯，而對被告不公平。在本案而言，雖然原先被告是被控以販運罪名，但經三天的聆訊後，主控方面將控罪修改為管有而非販運，被告立即承認控罪及同意案情。如以販運的嚴重性而處置被告，就會極為不公平。" } }, { "doc_id": 125, "seg_id": 21, "translation": { "en": "What Mr. Wong is not satisfied with is that the trial judge refused to take into consideration precedents about sentencing for possession of “ice”. Mr. Wong cited the following seven recent cases about sentencing for possession of “ice”. In R v Wu Chi Wai, the applicant for leave to appeal was convicted of trafficking in 59.39 grams of a crystalline solid containing 56.12 grams of “ice”. The Court of Appeal (for reasons not related to this case) quashed the original conviction of trafficking and substituted for it a conviction of possession, and the sentence was varied to one of 2 years’ imprisonment. It was because the Court of Appeal took the view that had the defendant been charged with possession from the outset instead of trafficking, he would have pleaded guilty. When imposing the sentence of two years’ imprisonment, the Court of Appeal had also noted that the amount of drugs involved in that case, namely 56.12 grams, was greater than that for a usual case of possession, and therefore, opined that there must be a high latent risk that the drugs would fall from the unstable hands of the applicant into the hands of other persons.", "zh-HK": "王大律師所不滿者，是原審法官拒絕以有關管有冰的量刑案例作為參考。王大律師援引以下七宗近數年來有關管有冰的量刑案例。在女皇訴胡志偉（譯音） 一案中， 上訴許可申請人被判販運內含56.12克的冰的59.39克晶狀固體。上訴庭（因與本案無關的原因）推翻原判的販運罪名而代之以管有罪名，改判刑期兩年，因上訴庭認為若被告一早便被控管有而非販運罪名，他會認罪。上訴法庭所判之兩年刑期，亦有考慮到該案56.12克比通常管有案件中為重的毒品，故亦認為一定有很高的潛在風險，該毒品可能會從申請人不穩定的雙手中流入他人之手。" } }, { "doc_id": 125, "seg_id": 22, "translation": { "en": "In R v Chan Shing Hing, the applicant for leave to appeal was charged with unlawful trafficking in 29.86 grams of “ice”. He pleaded not guilty to the charge but was willing to plead guilty to possession. After trial, the jury returned a verdict of not guilty of trafficking but guilty of possession. The trial judge sentenced the applicant to 4 years’ imprisonment. The Court of Appeal cited the above Wu Chi Wai case and considered a starting point of 3 years as being appropriate. As the applicant was willing to plead guilty to possession, the 3 years’ imprisonment was reduced to a term of 2 years.", "zh-HK": "在女皇訴陳盛興（譯音） 一案中，上訴許可申請人被控非法販運29.86克冰，他不認罪，但卻願意承認擁有該毒品。經審訊後，陪審團判申請人販運罪名不成立而管有罪名成立。原審法官判處申請人4年監禁。上訴庭援引上述的胡志偉一案，認為合適的量刑起點應為3年，而因申請人願意承認管有罪名，故將該3年刑期減為兩年。" } }, { "doc_id": 125, "seg_id": 23, "translation": { "en": "In HKSAR v Lam Wai Ip, the applicant for leave to appeal pleaded guilty to two charges. The first count involved a small quantity of heroin hydrochloride and several tablets of hallucinogen. The major charge was the second one, namely, possession of 19.68 grams of “ice”. The trial judge sentenced the applicant to a total of 3 years and 4 months’ imprisonment. The Court of Appeal cited the cases of Chan Shing Hing and Wu Chi Wai and considered the appropriate sentence to be 2 years’ imprisonment.", "zh-HK": "在香港特別行政區訴林偉業（譯音） 一案中，上訴許可申請人就兩項控罪作出承認。第一項控罪牽涉少量的海洛英鹽酸及數粒迷幻藥，而主要者為第二項控罪，即管有19.68克冰。原審法官判處申請人共入獄3年4個月。上訴法庭援引陳盛興及胡志偉案例，認為適當的刑期是兩年監禁。" } }, { "doc_id": 125, "seg_id": 24, "translation": { "en": "In HKSAR v Chan Yat Sing, the applicant for leave to appeal was found guilty before a jury of possession of 95.36 grams of “ice” instead of trafficking in the drugs as alleged in the charge. The applicant was originally willing to admit possessing those drugs, but it was because the prosecution refused to accept it that the case had to be decided by the jury. The trial judge sentenced the applicant to 5 years’ imprisonment, but the Court of Appeal was satisfied that a sentence of 3 1/2 years would be appropriate. At pages 2-3 of its judgment, the Court of Appeal made the following remarks:", "zh-HK": "在香港特別行政區訴陳日成（譯音） 一案中，上訴許可申請人被陪審團裁定管有95.36克冰，而非控罪所指的販運該毒品。申請人原先也願意承認管有該毒品，但是因為主控不接納，故案件須由陪審團裁決。原審法官判處申請人5年監禁。但上訴法庭認為3年半的監禁才恰當。在判案書第2-3頁中，上訴法庭有如下的說話：" } }, { "doc_id": 125, "seg_id": 25, "translation": { "en": "“The sentencing problem when a person who has had possession of a large quantity of drugs is found guilty of simple possession only is not an easy one. We are satisfied that the trial Judge, starting as she did, with the sentence for trafficking and then adjusting that sentence down was wrong in her approach in sentencing. The starting point in cases such as this is the sentence that would be imposed for simple possession of a quantity of dangerous drugs a bona fide user would normally have in his possession. This would be a year to 18 months. That sentence then has to be enhanced because of the latent risk factor.”", "zh-HK": "“當一個人管有大量毒品而被判純粹管有罪名時，量刑的問題並非易事。我等認為，原審法官以販運的刑罰為考慮之始，而將該刑罰相應地調低是錯誤的量刑方法。此等案件的量刑起點是一個真正的用家因純粹管有一個數量的毒品而應被處的刑罰。此刑罰會是1年至18個月監禁。然後該刑罰須因潛在風險的因素而提高。”" } }, { "doc_id": 125, "seg_id": 26, "translation": { "en": "In HKSAR v Lau Chi Chiu, the applicant for leave to appeal was found guilty after trial of possession of 63.38 grams of “ice” and not guilty of trafficking. The trial judge cited the Chan Yat Sing case and sentenced the applicant to 3 years’ imprisonment. The Court of Appeal accepted that the applicant had at all times during the trial been prepared to admit the charge of possession, and therefore the term of 3 years’ imprisonment imposed by the trial judge should be discounted by 1/3 for his plea. The applicant was sentenced to 2 years’ imprisonment accordingly. In that case, the Court of Appeal pointed out that in Chan Yat Sing, they were in error in sentencing Chan to 3 1/2 years because they had failed to take into account that Chan was prepared to plead guilty to possession at the time of trial.", "zh-HK": "在香港特別行政區訴劉志釗（譯音） 一案中，上訴許可申請人在審訊後被裁定管有63.38克冰罪名成立，而販運罪名不成立。原審法官援引陳日成案例，判處申請人入獄3年。上訴法庭接納申請人在原審時隨時願意承認管有罪名，故認為原審法官所判處之3年監禁應得認罪之三分一削減，故判處申請人兩年監禁。在該案中，上訴法庭指出，在陳日成中，他們的判處陳日成3年半刑期是錯誤的，因為他們忽略了陳日成在原審時是準備承認管有罪名的。" } }, { "doc_id": 125, "seg_id": 27, "translation": { "en": "In HKSAR v Lai Kam Sang, the applicant for leave to appeal was originally charged with unlawful trafficking in 26.61 grams of “ice”, and he pleaded not guilty. However, after two days’ hearing, the court accepted his plea of guilty to possession and sentenced him to 2 years and 8 months. In that case, the Court of Appeal reiterated that when assessing the starting point, a judge should look at the accepted range of sentence for simple possession which was from one year to 18 months. The approach to sentencing of the trial judge was that he took 2 years as the starting point for that offence of possession, and owing to the latent risk factor, he enhanced the sentence by 100% to 4 years. As the applicant was willing to plead guilty to the charge of possession, the 4 years’ term was reduced by 1/3, and so the final term of imprisonment was 2 years and 8 months. The Court of Appeal took the view that in respect of the 26.61 grams of “ice” involved in that case, doubling the original starting point of 2 years because of the latent risk factor was inappropriate. The Court of Appeal considered that the starting point in sentencing for possession of those drugs should be 18 months, and another 12 months should be added for the latent risk factor. As a result, the starting point should be 30 months. In addition, as the applicant was willing to plead guilty to possession, the 30 months’ imprisonment was reduced by 1/3 bringing the sentence to 20 months.", "zh-HK": "在香港特別行政區訴黎錦生（譯音） 一案中，上訴許可申請人原先被控非法販運26.61克冰。他不認罪，但經兩天聆訊後，法庭接納他承認管有罪而判他入獄兩年8個月。在該案中，上訴法庭重申，當法官評估量刑起點，應該考慮通常管有罪名的可接納的刑罰是1年至18個月監禁。原審法官量刑的方法，是以兩年為該管有罪名的量刑起點，因為潛在風險的存在，他加上百分之百刑罰，使刑期起點變為4年，然後因申請人願意承認管有罪名而把該4年刑期削減三分之一，故最終是兩年8個月刑期。上訴法庭認為在該案所涉之26.61克冰的重量來說，為了潛在風險的因素而將原本的量刑起點由兩年加至雙倍，是不適當的。上訴法庭認為，管有該毒品的量刑起點應為18個月而加以潛在風險因素所應加的12個月監禁，故刑期起點應為30個月。又因申請人願意承認管有罪名，故將30個月扣減三分之一而成為20個月的刑期。" } }, { "doc_id": 125, "seg_id": 28, "translation": { "en": "In HKSAR v Chew Sik Pok, the applicant for leave to appeal was charged with trafficking in 24.12 grams of “ice” in the Court of First Instance. He pleaded not guilty but was found guilty before a jury. The trial judge sentenced him to imprisonment for 7 years and 9 months. The Court of Appeal (for reasons not related to this case) convicted him for possession of the drugs and quashed his conviction for trafficking. In sentencing, the Court of Appeal said at pages 6-7 of its judgment as follows:", "zh-HK": "在香港特別行政區訴周識博（譯音） 一案中，上訴許可申請人在原訟法庭中被控一項販運24.12克冰的控罪。他不認罪，但被陪審團裁定罪名成立。原審法官判處他入獄7年9個月。上訴法庭（因與本案無關的原因）改判申請人管有該毒品罪名成立，而販運該毒品罪名不成立。在量刑時，上訴法庭在判詞第6至7頁中有如下的說話：" } }, { "doc_id": 125, "seg_id": 29, "translation": { "en": "“The amount was not large. His evidence was that he was an addict, that he had the amount there for his own consumption and that he would have consumed that amount in about six weeks. He said that at the time he was taking the drugs home having just purchased them. He is clearly a drug addict as he has had eight convictions for possession of drugs since 1992. We note that he has no conviction for possession for the purpose of trafficking. We note also that he was in employment at the time of his arrest. These are, when we come to consider what is known as the latent risk factor, important considerations. Following the judgment in HKSAR v Lai Kam Shing, Crim App No. 578 of 1998, we are satisfied that we must start at the currently accepted sentence for simple possession, which is 18 months and must then if it is appropriate, enhance that sentence for a latent risk.”", "zh-HK": "“毒品的數量不大。他（即申請人）的證據是他是一個癮君子，他擁有該數量的毒品以供他自用，該些毒品可供給他6個星期的用度。他說在當時他剛買了毒品而將毒品帶回家中。他清楚地是一名癮君子，因為自1992年起他有八次管有毒品的前科。我們注意到他從沒有擁有毒品以作販運用途的刑事紀錄。我們亦注意到在被捕時他是受僱的人。當我們要考慮所謂潛在風險的因素時，這些都是重要考慮的事項。根據香港特別行政區訴黎錦生，Crim App No 578 of 1998，我們認為滿意者就是我們必須以現時被接納的純粹管有刑罰，即18個月，作為起點，然後，如在適當的情況下，必須因潛在風險而把該刑罰提高。”" } }, { "doc_id": 125, "seg_id": 30, "translation": { "en": "Accordingly, the Court of Appeal adopted 18 months’ imprisonment as the appropriate sentence for possession of that 24.12 grams of “ice”, and another 6 months were added for the latent risk factor, giving a total of 24 months. The Court of Appeal reduced the sentence by 1/3 for the applicant’s plea of guilty to possession, and so the sentence was one of 16 months.", "zh-HK": "上訴法庭乃採取18個月監禁作為管有該24.12克冰的合適刑期，而因潛在風險因素加上6個月監禁，從該總共的24個月監禁刑期，上訴法庭因申請人承認管有而扣減三分之一，故得刑期16個月。" } }, { "doc_id": 125, "seg_id": 31, "translation": { "en": "Recently, in the case of HKSAR v Cheung Chun Fai, the Court of Appeal also made reference to the cases of Chew Sik Pok, Lai Kam Sang and Lau Chi Chiu and considered the amount of “ice” and the latent risk factor in sentencing.", "zh-HK": "最近，在香港特別行政區訴張俊輝 一案中，上訴法庭亦參照周識博、黎錦生及劉志釗案例，考慮管有冰的數量及潛在風險而量刑。" } }, { "doc_id": 125, "seg_id": 32, "translation": { "en": "From all the above sentencing cases of the Court of Appeal for possession of dangerous drugs, it can be seen that attention has to be paid to the following points:", "zh-HK": "從以上所有上訴法庭有關管有危險藥物的量刑案例中，可見有下列需要注意之數點：" } }, { "doc_id": 125, "seg_id": 33, "translation": { "en": "If a defendant is convicted for possession of dangerous drugs, he cannot be treated on the basis of trafficking in sentencing. It is because there is no offence of “unproven trafficking” in law.", "zh-HK": "如被告被判管有毒品，在處刑時，則不能把他視作販運該毒品，因法律中並無“不能證明的販運”的罪行。" } }, { "doc_id": 125, "seg_id": 34, "translation": { "en": "The sentence for possession of dangerous drugs shall be far more lenient than that for trafficking in dangerous drugs. For example, the sentence of 2 to 5 years for trafficking in 10 grams or below of heroin and that of 5 to 8 years for trafficking in 10 to 50 grams of heroin, as set out in the sentencing guideline for trafficking in heroin in the case of R v Lau Tak Ming, are not applicable to sentencing for possession of dangerous drugs.", "zh-HK": "管有毒品所被判處的刑罰，應遠較販運毒品所處的刑罰為輕，如女皇訴劉德明（譯音） 的販運海洛英量刑指引，販運10克及以下的海洛英刑期為2至5年，而販運10至50克海洛英的刑期則為5至8年，是不能用於管有毒品的量刑的。" } }, { "doc_id": 125, "seg_id": 35, "translation": { "en": "In cases involving “ice”, especially those of Chan Yat Sing, Lai Kam Sang and Chew Sik Pok which are cases decided in the past two years, the Court of Appeal took the view that the acceptable sentence for possession of dangerous drugs was an imprisonment for 1 year to 18 months. This sentence also reflects the above views in (1) and (2).", "zh-HK": "在有關冰的案例中，尤其是最近兩年的陳日成、黎錦生、和周識博，上訴法庭認為管有毒品可被接納的刑期為1年至18個月監禁。這個刑量亦反映了以上(1)及(2)的思維。" } }, { "doc_id": 125, "seg_id": 36, "translation": { "en": "In sentencing for possession of dangerous drugs, the court must consider the latent risk factor and decide whether the sentence should be enhanced for that factor.", "zh-HK": "就管有毒品量刑時，法庭必須考慮潛在風險的因素，是否因該因素而須將刑罰提高。" } }, { "doc_id": 125, "seg_id": 37, "translation": { "en": "When a sentence is decided after taking the offence of possession of dangerous drugs and the latent risk factor into consideration, the court should consider other mitigating factors and then reduce the sentence accordingly.", "zh-HK": "就管有毒品及潛在風險因素而裁定刑罰後，法庭應考慮其他的求情或減刑因素，而把刑期削減。" } }, { "doc_id": 125, "seg_id": 38, "translation": { "en": "Mr. Wong is not satisfied that the trial judge had not considered any cases in sentencing for possession of “ice”. He pointed out that in principle, when dealing with sentencing for possession of any kind of dangerous drugs, the basic sentence for possession should first be considered and then the latent risk factor should be considered to see whether the sentence had to be enhanced. He further pointed out that the courts in Hong Kong did not consider the harmful effect of “ice” to be less than that of heroin. This view was supported by the case of AG v Ching Kwok Hung.", "zh-HK": "王大律師不滿原審法官並無參考有關管有冰的量刑案例。他指出，在原則上，處理管有任何毒品的量刑，應考慮管有的基本刑罰，再考慮潛在風險的因素而需否提高刑罰。他又指出，本港法庭認為冰的害處，不比海洛英的荼毒為小。這個看法，是有案例支持的，就是律政司訴程國雄（譯音） 。" } }, { "doc_id": 125, "seg_id": 39, "translation": { "en": "In this case, the trial judge only said that she considered it inappropriate to take cases about “ice” as sentencing references for possession of heroin hydrochloride, but she had not given any reason or cited any case to support such a decision. This Court takes the view that possession of heroin and “ice” is both contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, and the harmful effect of “ice” is by no means less than that of heroin. Therefore, in principle, the gravity of possession of either one of these two dangerous drugs is more or less the same as that of the other, and the sentences should not differ much. This is reflected in the following sentencing guidelines as set out in the cases of Lau Tak Ming and Ching Kwok Hung:", "zh-HK": "在本案中，原審法官只是說她認為以冰案例作海洛英鹽酸藏毒量刑參考並不適合，但她卻沒有指出任何原因或案例支持此裁決。本庭認為，管有海洛英或管有冰同樣地是違反《危險藥物條例》第8(1)(a)和(2)條，而冰的為害與海洛英不相伯仲，故在原則上，管有此一種或彼一種毒品的罪責，亦應大同小異，故刑期亦應沒有多大差別。這可見於劉德明及程國雄所訂下的量刑指引，如下：" } }, { "doc_id": 125, "seg_id": 40, "translation": { "en": "As a result, this Court opines that due reference should be made to cases about sentencing for possession of “ice” for assistance in the sentencing for possession of heroin. The above decision made by the trial judge is both unfounded and incorrect.", "zh-HK": "因此，本庭認為涉及管有冰量刑的案例，應適當地加以參考，協助考慮管有海洛英鹽酸之量刑。原審法官上述的裁決是缺乏理據及錯誤的。" } }, { "doc_id": 125, "seg_id": 41, "translation": { "en": "However, Mr. Lee, Counsel for the Prosecution, pointed out to this Court that although he agreed that the two steps adopted in the cited cases about sentencing for possession of “ice”, namely, the basic sentence for possession and the enhancement for latent risk factor, and the various factors related to the consideration of latent risk were applicable to the sentencing for possession of heroin, he did not agree that the basic sentence in sentencing for “ice” could be directly applied to that for heroin. It was because the nature, harmful effect and prevalence of each kind of dangerous drug were different, and the basic sentence for possession should be properly distinguished accordingly. This Court agrees with this view, because if the drug in possession is cannabis, the penalty should be lighter than that for the possession of serious hard drugs such as “ice” and heroin.", "zh-HK": "然而，代表控方的李大律師向本庭指出，雖然他同意關於管有冰的量刑案例在採取兩個步驟，即管有的基本刑罰及潛在風險的加刑，及考慮潛在風險的各項有關因素方面，適用於考慮管有海洛英的量刑，但是他不同意在基本刑罰方面，冰的量刑可直接用於海洛英，因每種毒品的性質、為害程度及普及性各有不同，管有的基本刑罰亦須因而作出適當的分別。本庭贊成這意見，因為如果管有的毒品是大麻，刑罰就應較管有冰及海洛英這些嚴重硬性毒品為輕。" } }, { "doc_id": 125, "seg_id": 42, "translation": { "en": "Mr. Wong also submitted that it was inappropriate for the trial judge to consider that there was a latent risk factor just for the reason that the drugs involved in this case were packed in small packets. This Court considers that the packaging of drugs is a reasonable item for consideration in relation to the latent risk factor, and this was also mentioned in the case of Wong Yiu Kwan. Other matters that require consideration, which were suggested by the Court of Appeal in the case of Chew Sik Pok, include the quantity of the drugs, whether the defendant is a drug addict, the seriousness of his addiction, for how long the drugs will last him, how the defendant stores or carries the drugs about and whether the defendant has a proper employment and income, etc. Therefore, this Court thinks that there is nothing improper, rather, it is appropriate, for the trial judge to take into consideration the fact that the drugs found on the Defendant were packed in 137 packets when considering the latent risk factor.", "zh-HK": "王大律師亦辯稱原審法官以本案毒品被包裝成小包，就會有潛在風險因素的存在，是不當的。本庭認為，毒品的包裝情況，是潛在風險因素的合理考慮事項，在黃耀群亦有提及。其他要考慮的事情，上訴法庭在周識博中也有提示，就是毒品的數量，被告是否癮君子，他的毒癮有多深，毒品可供他自用多久，被告怎樣儲存或携帶毒品，和被告是否有正當工作及入息的人士，等等。故本庭認為，原審法官考慮從被告身上搜出的毒品包裝成137包，以作潛在風險因素的考慮，並無不當，而是應該的。" } }, { "doc_id": 125, "seg_id": 43, "translation": { "en": "In this case, the Defendant stated that he was an Assistant Photographer in the movie industry and earned about $30,000 a month. The drugs found on him at the time of the incident were bought by him for his own consumption for the price of $10,000. That quantity of drugs could last him 20 days. The Defendant had been in drug addiction since 1982. He admitted that he had 19 convictions, 9 of which were drug-related, and 8 out of those were offences of possession of dangerous drugs. Only the first record in 1982 was possession of dangerous drugs for the purpose of trafficking. The Drug Addiction Treatment Centre Report dated 3 June 1999 pointed out that the Defendant had been sentenced to the Centre three times in 1982, 1990 and 1993 respectively for treatments but these were all ineffective. The report also pointed out that the last time the Defendant consumed heroin was in January 1999. However, according to the examination carried out by a medical officer, the Defendant was no longer drug-dependent. Before the trial judge imposed sentence, the lawyer for the Defendant explained on his behalf why he was not drug-dependent: the Defendant was arrested on 13 November 1998 and granted bail on 20 December. However, the bail was revoked by court on 15 January 1999, and the Defendant remained in custody from that day until 3 June 1999. As a result, he got rid of his addiction during the 5 odd months of custody.", "zh-HK": "在本案中，被告稱他是一個從事電影業的助理攝影師，月薪約三萬元。案發時在他身上搜到的毒品，是他以一萬元的價錢買入以供他自用的。該數量的毒品可供他使用20天。自1982年起，被告已有毒癮，而他承認有19次犯罪紀錄，9次與毒品有關，其中8次是管有危險藥物，而只在最初1982年的一次，是管有危險藥物以作販運用途。戒毒中心1999年6月3日的報告書中指出，被告曾於1982年、1990年及1993年三次被判處到該中心戒毒，但是並無效用。該報告書亦指出被告最後一次使用海洛英是在1999年1月，但據醫官檢驗，被告已不再需要倚賴毒品。在原審法官處刑前，被告的律師代表他解釋為什麽他已經沒有毒癮：被告於1998年11月13日被捕，12月20日保釋外出，但1999年1月15日被法庭取消保釋，由當日被拘押至1999年6月3日；因此毒癮已在這段5個多月被拘留的時間中戒掉。" } }, { "doc_id": 125, "seg_id": 44, "translation": { "en": "For the above reasons, this Court considers it inappropriate for the trial judge to sentence the Defendant to 3 years’ imprisonment without first considering the cases of the Court of Appeal about sentencing for possession of “ice”. With reference to the above cases about possession of heroin and “ice”, this Court considers that the starting point for the Defendant for his possession should be imprisonment for 2 years. The quantity of heroin hydrochloride possessed by the Defendant was 48.32 grams, which was exceptionally large, and was close to the quantity possessed by the applicant for leave to appeal in the case of Chan Ching Ho, and the drugs were packed in as many as 137 packets. Although the Defendant had a decent job with a rather good salary, and he also stressed that the amount was for his own consumption and could only last for 20 days, this Court takes the view that the latent risk is really very high. Therefore, this Court considers that for the latent risk factor, 18 months’ imprisonment should be added, making the overall starting point 3 years and 6 months. The Defendant is entitled to the usual 1/3 reduction in sentence for his plea to possession. Therefore, this Court takes the view that an appropriate sentence is 2 years and 4 months.", "zh-HK": "基於上述原因，本庭認為原審法官不考慮上訴法庭就管有冰量刑的案例而判處被告3年的刑期，是不當的。參照上述的管有海洛英及冰的各案例，本庭認為被告管有罪的刑期應以兩年監禁為量刑起點。另外，因被告管有的海洛英鹽酸為48.32克，數量奇高，幾可與陳清浩之上訴許可申請人所管有之數量相比，且分為137小包之多。雖然被告有頗高薪酬的正當工作，而又強調該數量是他自用而只可用20天，但是本庭覺得潛在風險實在很大。因此本庭認為就潛在風險因素方面，應加以18個月監禁，故量刑的總起點為3年6個月。因被告承認管有控罪，應予以通常的三分之一的刑罰扣減，故本庭認為適當的刑罰應為2年4個月。" } }, { "doc_id": 125, "seg_id": 45, "translation": { "en": "This Court treats the Defendant’s application for leave to appeal as the appeal proper and allows the appeal. The original sentence of imprisonment for 3 years is set aside and a term of 2 years and 4 months is substituted therefor.", "zh-HK": "本庭把被告的上訴許可申請當作為正式上訴，批准上訴，撤銷原判的3年刑期，而代之以2年4個月刑期。" } }, { "doc_id": 125, "seg_id": 46, "translation": { "en": "HKSAR:represented by Mr. S. K. Lee, Senior Assistant Director of Public Prosecutions and Mr. W. K. Ho, Senior Government Counsel", "zh-HK": "香港特別行政區：由高級助理刑事檢控專員李紹強及高級政府律師何詠光代表" } }, { "doc_id": 125, "seg_id": 47, "translation": { "en": "Defendant:represented by Mr. Wong Po Wing, instructed by the Legal Aid Department", "zh-HK": "被告：由法律援助署委派王寳榮大律師代表" } }, { "doc_id": 126, "seg_id": 1, "translation": { "en": "Hon Yeung VP:", "zh-HK": "高等法院上訴法庭副庭長楊振權：" } }, { "doc_id": 126, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 126, "seg_id": 3, "translation": { "en": "The 2015 Hong Kong District Council Election (“2015 Election”) was held on 22 November 2015, with the nomination period running from 2 October 2015 to 15 October 2015. Pursuant to the relevant election regulations, the election expenses of each candidate was subject to a maximum of $63,100.", "zh-HK": "2015‍年香港區議會選舉（2015‍年選舉）在2015‍年11‍月22‍日舉行，提名期是由2015‍年10‍月2‍日至2015‍年10‍月15‍日。根據有關選舉規例，每名候選人的選舉開支上‍限是63,100元。" } }, { "doc_id": 126, "seg_id": 4, "translation": { "en": "The 2nd Defendant Ku Ka-ho (“Ku”) is the founder of “All People Spontaneous” (“APS”), one of the localist political organizations. The 3rd Defendant Chan Kin-loong (“Chan”) and an immunized prosecution witness Cheung Sin-kin (“Cheung”) were both members of APS.", "zh-HK": "第二被告人顧‍家‍豪（顧）是其中一個本土政治組織「全‍民自發」（APS）的創立人。第三被告人陳建隆（陳）和獲特赦的控方證人張善健（張）都是APS的成員。" } }, { "doc_id": 126, "seg_id": 5, "translation": { "en": "On 20 August 2015, an Internet rumour had it that the 1st Defendant Cheng Wing-kin (“Cheng”) would subsidize members of localist political organizations in taking part in the 2015 Election, with the objective of “snatching votes”, i.e. causing those candidates not of their preference to lose the election.", "zh-HK": "2015‍年8‍月20‍日，網上流傳一項消息指第‍一被‍告‍人鄭永健（鄭）會資助本土政治組織人士參加2015‍年選舉，目的是“鎅票”，即令某些他們不屬意的參選人敗選。" } }, { "doc_id": 126, "seg_id": 6, "translation": { "en": "The prosecution alleged that Cheng had approached various localist community organizations prior to the 2015 Election, indicating his willingness to subsidize them in sending candidates to stand in certain constituencies specified by him (including the Lee On, Tai Shui Hang and On Tai constituencies in Shatin). The various persons whom Cheng approached turned down his offer. However, Ku and Chan accepted HK$150,000 to HK$200,000 offered by Cheng by way of subsidy, as an inducement for Ku to procure Chan to stand as a candidate in a specified constituency at the 2015 Election.", "zh-HK": "控方指鄭在2015‍年選舉前接觸多個本土社區組‍織，表示願意資助它們派人在某些他指明的選區（包括沙‍田的利安、大水坑和鞍泰選區）參選。鄭接觸的多名人士都拒絕鄭的建議，但顧和陳則接受了鄭建議資助的15至20‍萬港元作為顧促‍使陳在2015‍年選舉在某個指明選區中參‍選的誘因。" } }, { "doc_id": 126, "seg_id": 7, "translation": { "en": "As a result of the above incident, Cheng was charged with a total of 13 offences contrary to the Elections (Corrupt and Illegal Conduct) Ordinance, Cap. 554 of the Laws of Hong Kong (“the Ordinance”). Charges 1 and 2 respectively alleged that Cheng induced Wong Hok-lai to stand as a candidate and induced Wong Hok-lai to get another person to stand as a candidate. Charge 4 alleged that Cheng induced Tsang Ka-lam to get another person to stand as a candidate. Charges 6 and 7 respectively alleged that Cheng induced Wong Chun-yeung to stand as a candidate and induced Wong Chun-yeung to get another person to stand as a candidate. Charge 9 alleged that Cheng induced Leung Chung-hang Sixtus to get another person to stand as a candidate. Charge 11 alleged that Cheng induced Lee Man-ho Leos to stand as a candidate. Charge 12 alleged that Cheng induced Wan Hiu-yee (“Wan”), his ex-girlfriend, to get another person to stand as a candidate. Charges 3, 5, 8 and 10, being the respective alternative charges for Charges 2, 4, 7 and 9, respectively alleged that Cheng induced community organizations such as “Shatin Community Network”, “Shatin New Alliance of the Pragmatic”, “Tung Chung Future” and “Youngspiration” to send people to stand as candidates in the constituencies specified by Cheng. Charge 13 alleged that the three defendants conspired to corruptly engage in illegal conduct at an election, namely, Ku accepted an advantage, offered by Cheng, of HK$150,000 to 200,000 as an inducement for Ku to procure Chan to stand as a candidate at the 2015 Election in a constituency specified by Cheng.", "zh-HK": "上述事件導致鄭被控共13項違反香港法例第‍554‍章《選舉(舞弊及非法行為) 條例》（《條例》）的控‍罪。第‍一、二‍項控罪分別指鄭利誘黃‍學‍禮參選及利誘黃‍學‍禮令另‍一人參選。第‍四‍項控罪指鄭利誘曾‍家‍霖令另一人參選。第‍六、七‍項控罪分別指鄭利誘王‍進‍洋參選及利誘王‍進‍洋令另‍一人參選。第‍九‍項控罪指鄭利‍誘梁‍頌‍恆令另一人參選。第‍十一‍項控‍罪指鄭利誘李‍文‍浩參選。第‍十二‍項控罪則指鄭利‍誘其前女友溫‍曉‍怡（溫）令另一人參選。第‍三、五、八和十‍項控罪分別是第‍二、四、七及九‍項控罪的交替控罪，分別指鄭利誘“沙田社區網絡”、“沙田新幹綫”、“東涌人”及“青年新政”等社區組織派人在鄭指定的選區中參選。第‍十三項控罪指三‍名被告人串謀在選舉中舞弊地作出某些違法行為，即顧接受鄭提供15‍至20‍萬港元的利益作為顧促‍使陳在2015‍年選舉在某個鄭指明的選區中參選的誘因。" } }, { "doc_id": 126, "seg_id": 8, "translation": { "en": "None of the defendants pleaded guilty to any of the charges, and they were tried before District Judge Pang (“trial judge”).", "zh-HK": "三‍名被告人都否認全部控罪，並在區域法院法官彭‍中‍屏（原‍審‍法‍官）席前受審。" } }, { "doc_id": 126, "seg_id": 9, "translation": { "en": "On 24 October 2016, the trial judge convicted Cheng on Charges 1, 2, 4, 6, 9, 11 and 13. The trial judge took the view that the alternative charges (i.e. Charges 3, 5, 8 and 10) were unnecessary, and also acquitted Cheng on Charges 7, 8 and 12 for the reason that the circumstances in which Cheng offered the advantages in relation to those charges were unclear. The trial judge also convicted Ku and Chan on Charge 13.", "zh-HK": "2016‍年10‍月24‍日，原審法官裁定鄭第一、二、四、六、九、十一及十三項控罪罪名成立。原審法官認為第‍三、五、八及十項交替控罪無必要，而第七、八及十二項控罪因鄭提供利益的情況不清晰，因此裁定鄭該些控罪罪名不成立。原審法官亦裁定顧和陳第十三項控罪罪名成立。" } }, { "doc_id": 126, "seg_id": 10, "translation": { "en": "The amounts involved in Charges 1, 2, 6, 9, 11, and 13 were, respectively, $200,000, $200,000, $150,000, $150,000, $150,000, and $150,000 to $200,000. The amount involved in Charge 4 was not specified.", "zh-HK": "第‍一、二、六、九、十一及第‍十三‍項控罪所涉的金‍額分別是20‍萬元、20‍萬元、15‍萬元、15‍萬元、15‍萬元及15‍至20‍萬元。第‍四‍項控罪所涉的金額則沒有指明。" } }, { "doc_id": 126, "seg_id": 11, "translation": { "en": "On 26 October 2016, the trial judge imposed on Cheng concurrent sentences of 18 months’ imprisonment for each of Charges 1, 2, 4, 6, 9 and 11, and a consecutive sentence of 2½ years’ imprisonment for Charge 13. The total term of imprisonment for Cheng was 4 years.", "zh-HK": "2016‍年10‍月26‍日，原審法官判處鄭第‍一、二、四、六、九及十一‍項控罪每項入獄18‍個月，同期執行，而第十三項控罪則入獄2‍年6‍個月，但分期執行。鄭的總刑期為4‍年監禁。" } }, { "doc_id": 126, "seg_id": 12, "translation": { "en": "In respect of Charge 13, the trial judge sentenced Ku and Chan to imprisonment for 2½ years and 2 years and 4 months respectively.", "zh-HK": "就第十三項控罪，原審法官判處顧和陳分別每人入‍獄2‍年6‍個月和2‍年4‍個月監禁。" } }, { "doc_id": 126, "seg_id": 13, "translation": { "en": "Each of the three defendants now applies for leave to appeal against conviction and/or sentence.", "zh-HK": "三名被告人都不服定罪及判刑，分別提出上訴許可申請，要求獲准就定罪及/或判刑上訴。" } }, { "doc_id": 126, "seg_id": 14, "translation": { "en": "The prosecution case and evidence", "zh-HK": "控方的案情及證據" } }, { "doc_id": 126, "seg_id": 15, "translation": { "en": "It was the prosecution case that Cheng, purportedly acting upon the instruction of a “Chief Li”, offered advantages to induce localist political organizations to send candidates to designated constituencies at the 2015 Election, for the purpose not of winning but of preventing some other candidates from winning by diluting their voter base by means of “vote snatching”. Cheng said to those in charge of localist political organizations that anyone who agreed to stand as a candidate in accordance with his instructions had to submit an election report and run in a designated constituency. He stated clearly that, whether the person who agreed to stand as a candidate won the election or not, as long as he/she obtained about 200 votes, he/she would receive a subsidy between $150,000 and $200,000 in cash, and he/she would be free to decide how to use the subsidy.", "zh-HK": "控方指鄭自稱是根據一‍名“李總”的指示，利誘本‍土‍派政治組織派人到某指定選區參加2015‍年選舉，目的並非是取得席位，而是要以「鎅票」手法分散某些候選人的票源，令他們不能當選。鄭向本土派政治組織的負責人表示同‍意按他的指示參選的人須提交選舉報告書及在指定地區參選。鄭表明同意參選人只須取得約200‍票，勝負不計，就‍能取得以現金發放的15‍至20‍萬元資助，而收款者可以自由運‍用他資助的金額。" } }, { "doc_id": 126, "seg_id": 16, "translation": { "en": "Yuen Fong of “Youngspiration” made an audio recording of his meeting with Cheng. According to the recording, Cheng claimed to be representing a consortium which was capable of providing election funding of $150,000, on condition that “Youngspiration” would send a candidate to the constituency he designated. The fund would be paid in cash by three instalments: the first instalment, 25%, would be paid upon submission of an election proposal by the candidate; the second instalment, 50%, would be paid upon successful signing up; and the third instalment, 25%, would be paid after the conclusion of the election. Lee Man-ho Leos, founder of another localist organization “Cheung Sha Wan Community Establishment Power”, further alleged that when he asked Cheng over the phone what designated constituencies there were to choose from, Cheng “changed his voice” before naming ten-odd constituencies.", "zh-HK": "“青年新政”的袁方有將和鄭會面的過程錄音。錄‍音內容顯示鄭聲稱是代表一‍個財團，可以支付15‍萬選舉經‍費，條件是“青年新政”會派人在他指定的選區參選。選‍舉經費會以現金及分‍三期支付，第一期25%是參選者提交選舉計劃書後支付，第二期50%是報名成功後支付，而第‍三‍期25%是選舉完畢後支付。另一本土組織“長沙灣社區發展力量”的創立人李文浩更指當他致電鄭，問他有甚麼指‍定選區可以選擇時，鄭先“變聲”，才說出十多個選區的名稱。" } }, { "doc_id": 126, "seg_id": 17, "translation": { "en": "The prosecution alleged that APS was one of the localist organizations that Cheng induced, that members of APS including Ku, Chan and Cheung agreed to take Cheng’s subsidy of $150,000, and that Ku arranged for Chan to stand as a candidate at the 2015 Election in the constituency designated by Cheng. According to the agreement among the parties, the $150,000 subsidy offered by Cheng would be paid by three instalments, with the first instalment, being 25% of the total sum, to be paid after the submission of an election proposal. Eventually, after Chan handed an election proposal to Ku, Cheng handed $36,000 to Ku during a dinner on 9 August 2015 which the four conspirators attended.", "zh-HK": "控方指APS是鄭利誘的本土組織之一，而APS的成員，包括顧、陳和張同意接受鄭提供的15‍萬元資助，並‍由顧安排陳在鄭指定的選區參加2015‍年選舉。根據雙方的協‍議，鄭答應資助的15‍萬元資助會分三期支付，第一期是總額的25%會在提交選舉計劃書後支付。結果，當陳將選‍舉計劃書交了給顧後，在四名串謀者在2015‍年8‍月9‍日出‍席的晚餐上，鄭將36,000‍元交了給顧。" } }, { "doc_id": 126, "seg_id": 18, "translation": { "en": "The prosecution witnesses against Cheng included: Wan; Wong Hok-lai, representative of “Shatin Community Network”; Tsang Ka-lam, representative of “Shatin New Alliance of the Pragmatic”; Wong Chun-yeung, Chairman of “Tung Chung Future”; Leung Chung-hang Sixtus and Yuen Fong, representatives of “Youngspiration”; Lee Man-ho Leos, founder of “Cheung Sha Wan Community Establishment Power”; and Cheung.", "zh-HK": "針對鄭的控方證人包括溫、“沙田社區網絡”的代‍表黃‍學‍禮、“沙田新幹線”的代表曾‍家‍霖、“東涌人”的主‍席王‍進‍洋、“青年新政”的代表梁‍頌‍恆和袁‍方、“長沙灣社區發展力量”的創立人李‍文‍浩及張。" } }, { "doc_id": 126, "seg_id": 19, "translation": { "en": "All the above prosecution witnesses clearly stated in testimony that they met Cheng on various dates. During their meetings, Cheng said that he represented a consortium seeking to subsidize the said localist political organizations in sending candidates to the geographical constituencies he designated for the election, and an organization which agreed to do so could receive a subsidy in cash ranging from $150,000 to $200,000. Cheng made it clear to the witnesses that those who agreed to run as candidates would receive subsidies as long as they obtained about 200 votes, whether or not they won the election, and that he would not ask how the money would be spent because his sole objective was to “eliminate the targets” and “dilute the voter base”. In her testimony, Wan even said she, as Cheng’s girlfriend, had accompanied Cheng to many meetings with people from the aforesaid localist organizations. Wan said that she herself used to participate in a localist organization, and that Cheng had also asked her to find some localists to stand as candidates at the election and mentioned that she would be rewarded with a five-digit sum. According to the testimonies of the above witnesses, when Cheng was offering the election subsidies, he had no clue at all who would accept his offer and stand as candidates at the 2015 Election.", "zh-HK": "上述控方證人在作供時都表明在不同日子有和鄭會‍面，會面時鄭表示自己代表某財團，目的是資助該些本土政治組織派人到他指定的地區參選，而如組織同意便可以取‍得15至20‍萬元的現金資助。鄭有向證人表明同意參選的‍人，不論勝負，只要取得約200票就可以得到資助，而他亦不會過問錢的用途，原因是他的目的只是要“清除目標”及“分散票源”。溫在作供時更表示她多次以鄭女友的身份陪同他和上述本土組織人士見面。溫指她自己曾參與過一個本土組織，而鄭亦曾要求她找一些本土派人士參選，並提及會給予她五‍位數字的報酬。根據上述證人的證供，鄭提出資‍助參選的建議時，他根本不知道誰人會接受他的建議參加2015年選舉。" } }, { "doc_id": 126, "seg_id": 20, "translation": { "en": "Wan said she went to a restaurant in Mong Kok with Cheng on 12 July 2015 to meet APS members including Ku and Cheung. At that meeting, Cheng mentioned to Ku the subsidy plan and said Ku could decide for himself how to use the subsidy.", "zh-HK": "溫指她在2015‍年7‍月12‍日陪同鄭在旺角一間餐廳和APS成員，包括顧和張會面。會面時鄭向顧提出有關的資助計劃，並表示顧可以自行運用該筆資助款項。" } }, { "doc_id": 126, "seg_id": 21, "translation": { "en": "Wan stated that she accompanied Cheng to a second meeting with APS members on 19 July 2015. Ten-odd APS members attended the meeting, including Ku, Chan and Cheung. Cheng reiterated that sponsorship would be given to APS for sending someone to stand as a candidate at the election. Cheng stressed that APS would not have to change its political stance, and that he would make the sponsorship payment by three instalments as long as there was an APS member who stood in a geographical constituency designated by him and obtained around 200 votes, whether or not that person won the election, but APS would first have to submit a candidacy report. At the time, Chan said he would stand as a candidate and gave an introduction about his own background.", "zh-HK": "溫指在2015‍年7‍月19‍日再有陪同鄭和APS成員第二次會面。當時APS有十‍多名成員出席，包括顧、陳和張，而鄭重申會贊助APS派人參選。鄭強調APS毋須改變其政治立場，只要APS有成員在他指定的地區參選並取得約200‍票，則不論是否勝出，他都會分三期支付贊助費，但‍APS要先交一‍份參選報告書。當時陳說他會參選，並有介紹自己的背景。" } }, { "doc_id": 126, "seg_id": 22, "translation": { "en": "After the matter of election subsidies came to light, Wan accompanied Cheng to Macau on 25 August 2015 for a meeting in a hotel with the person whom Cheng referred to as Chief Li. During that time, Cheng even used Wan’s mobile phone for communication purposes as he feared that the media would find out he had been in contact with Ku and Chief Li.", "zh-HK": "當資助參選事件曝光後，溫在2015年8月25日陪‍同鄭前往澳門，並在一‍間酒店和鄭指稱的李總會面，期間鄭更有用溫的手機作通訊之用，原因是他害怕傳媒發現他有和顧及李總聯絡。" } }, { "doc_id": 126, "seg_id": 23, "translation": { "en": "The prosecution evidence also included facts which had been admitted by both parties, including:", "zh-HK": "控方的證據亦包括一些雙方承認的事實，包括：" } }, { "doc_id": 126, "seg_id": 24, "translation": { "en": "(i)that Ku’s mobile phone contained a record of the messages sent between Cheng and Ku from 13 August 2015 to 15 August 2015 [Exhibit P25], a record of the messages that Ku sent to Cheung on 15 July 2015 [Exhibit P26], and a record of the messages sent between Ku and Chan from 16 July 2015 to 12 August 2015 [Exhibit P27];", "zh-HK": "(一)顧的手提電話內載有鄭和顧在2015年８月13‍日至2015年8月15日相互傳遞的訊息紀錄（證物P25）；顧在2015年7月15日向張發出的訊息紀‍錄（證物P26）及顧和陳在2015年7月16‍日至2015‍年8月12日期間相互傳遞的訊息紀錄（證‍物P27）；" } }, { "doc_id": 126, "seg_id": 25, "translation": { "en": "(ii)that Chan’s mobile phone contained a record of the messages that Ku had sent to Chan on 17 August 2015 [Exhibit P28] and a record of the messages sent between Chan and Cheung from 26 July 2015 to 30 August 2015 [Exhibit P29];", "zh-HK": "(二)陳的手提電話內載有顧在2015年8月17日向陳發出的訊息紀錄（證物P28）及陳和張在2015年7月26日至2015年8月30日期間相互傳遞的訊‍息紀錄（證物P29）；" } }, { "doc_id": 126, "seg_id": 26, "translation": { "en": "(iii)that Cheung’s mobile phone contained 52 screenshots of dialogue messages [Exhibit P46]; and", "zh-HK": "(三)張的手提電話內載的52張通訊對話截圖的照片（證物P46）；及" } }, { "doc_id": 126, "seg_id": 27, "translation": { "en": "(iv) that, of the 15 photographs [Exhibit P47] stored in Ku’s mobile phone, some were identical with a number of documents in Exhibit P46.", "zh-HK": "(四)顧的手提電話內載的15張照片（證物P47）部‍分和證物P46的多張文件相同。" } }, { "doc_id": 126, "seg_id": 28, "translation": { "en": "The above exhibits were in line with the prosecution case and showed that there had been an agreement among the three applicants and a subsidy from Cheng had been accepted for sending someone to stand as a candidate at the 2015 Election.", "zh-HK": "上述證物都和控方的指控相符，顯示三名申請人有協議並‍接‍受鄭的資助，派人參選2015年選舉。" } }, { "doc_id": 126, "seg_id": 29, "translation": { "en": "In his testimony, Cheung said that he was present at the meeting with Cheng on 19 July 2015. After Cheng left, the APS members went on with the meeting, during which Ku instructed Cheung to prepare a candidacy report on behalf of Chan because both Ku and Chan were less than proficient in the Chinese language. Cheng had also mentioned the need to go after another candidate, Frederick Fung Kin-kee. Cheung claimed that he had urged Chan to submit the candidacy report and to step up efforts to maintain confidentiality, and that he had assisted Chan in compiling the candidacy report.", "zh-HK": "張在作供時表示他有出席2015‍年7‍月19‍日和鄭的會‍面，而當鄭離開後，APS成員繼續開會。期間顧指使張替陳準備一份參選報告書，原因是顧和陳的中文水平不足。鄭亦提過要追擊另一名參選者馮‍檢‍基。張指自己曾催促陳提交參選報告書及加強保密工夫，而他是有份協助陳準備該份參‍選報告書。" } }, { "doc_id": 126, "seg_id": 30, "translation": { "en": "Cheung went on to say that he met with the three defendants in an eatery in Tsuen Wan on the evening of 9 August 2015, during which Cheng indicated that although Chan’s candidacy report was not satisfactory, he would still pay $36,000 in order to show the strength of his consortium. He gave cash of $36,000 to Ku, who signed a document to acknowledge receipt. Cheng further asked the APS members not to receive advantages from both sides, and suggested that Chan run an election campaign programme at the online radio station hosted by Cheng. Cheung clearly stated that the messages on his mobile phone had been sent by those in the APS election campaign group. The group members included Ku and Chan, while the anthony cheng small letter A mentioned in the messages referred to Cheng.", "zh-HK": "張續稱在2015‍年8‍月9‍日晚上，他和三‍名被‍告‍人在荃灣一‍間食店會面，期間鄭表示陳的參選報告書做得不‍好，但為了顯示他財團的實力，他仍會支付36,000‍元，並將36,000‍元現金交了給顧，而顧亦有在文件上簽收。鄭更對APS成員說不要收兩‍家茶禮，並提議陳在他主持的網‍台做競選節目。張表明他的手提電話內的訊息是APS競選群‍組的人發出的。群組成員包括顧和陳，而訊息內提及的anthony cheng 小A就是鄭。" } }, { "doc_id": 126, "seg_id": 31, "translation": { "en": "On 20 August 2015, the above incident of subsidized candidacy came to light on the Internet, which in the end led to the arrest and prosecution of the defendants.", "zh-HK": "2015‍年8‍月20‍日，上述資助參選事件在網上曝光及最終導致各被告人被捕及遭檢控。" } }, { "doc_id": 126, "seg_id": 32, "translation": { "en": "Defence case and evidence", "zh-HK": "辯方的立場及證據" } }, { "doc_id": 126, "seg_id": 33, "translation": { "en": "The defence did not take much issue with the basic factual evidence adduced by the prosecution. Cheng agreed that he had approached a number of individuals from localist organizations and proposed subsidizing their members to stand as candidates at the 2015 Election. His case was that his true intention was not to subsidize others to stand as candidates, but rather to get into contact with persons from localist organizations to get wind of their improper relationship with the pro-democratic political parties, the reason being that he had noticed from online information that localist organizations and pro-democratic organizations might have some improper plans for the election.", "zh-HK": "辯方對控方的基本事實證據爭議不大。鄭同意有和多個本土組織人士接觸及提出資助組織成員參加2015‍年選‍舉。他的立場是他真正的目的並非資助他人參選，而是為‍了接觸本土組織人士，以打聽他們與泛民政黨的不當關‍係，因為他從網上資訊留意到本土組織與泛民組織可能有一些不當的選舉陰‍謀。" } }, { "doc_id": 126, "seg_id": 34, "translation": { "en": "Cheng stressed that as an online radio station host, he had always wanted to find material for his radio shows and to attract Chief Li to invest in his productions.", "zh-HK": "鄭強調他是網台主持，而他一直希望找資料作‍為網‍台節目的材料及吸引李總投資在他的拍攝製作。" } }, { "doc_id": 126, "seg_id": 35, "translation": { "en": "Cheng agreed that he did have meetings with APS members on 12 July and 19 July 2015, during which he put forward his plan to subsidize APS member(s) to stand as candidate(s) at the election, but this, Cheng said, was merely an excuse for him to approach APS. Cheng also admitted that he had paid Ku $36,000, but this, Cheng said, was for the purpose not to subsidize APS member(s) to stand as candidate(s), but to maintain a connection with APS so that it would be easier for him to film Chan’s election campaign. Cheng agreed that he had prepared an acknowledgement of receipt for Ku to sign, and that the reason for his payment should have been stated thereon. However, he first claimed that the receipt had been lost, and subsequently admitted that the receipt had been intentionally destroyed in order to curb unnecessary misunderstandings. Cheng agreed that he had received an election plan from Ku, but he was adamant that the $36,000 paid by him had nothing to do with subsidizing Chan to stand as a candidate at the election. His version was that the subsidized sum was for funding APS’s activities, with a collateral condition that Chan or APS members were required to assist him in filming the campaign process.", "zh-HK": "鄭同意在2015‍年7‍月12‍日和7‍月19‍日確有和APS成員會面及提出資助APS成員參選的計劃，但他表示該說‍法只是接觸APS的藉口。鄭亦承認有支付過36,000‍元給顧，但他指目的並非資助APS成員參選，而是為了維持和APS的聯繫，以便他能拍攝陳的參選過程。鄭同意有準備收條給顧簽收，收條應有其付款的原因。但他先表示已遺失了該收‍條，後來又承認故意毀滅該收條，以減少不必要的誤會。鄭同意曾收到顧交給他的選舉計劃書，但力稱他支付的36,000‍元和資助陳參選無關。他的說法是資助金額是贊助APS的活動經費，附帶條件是陳或APS成員要協助他拍攝競選的過程。" } }, { "doc_id": 126, "seg_id": 36, "translation": { "en": "Ku denied that the receipt of the $36,000 from Cheng was the consideration for subsidizing APS in sending someone to stand as a candidate at the election. He claimed that Cheng had indicated his intention to stand as a candidate at the District Council Election, but he would need assistance and protection by someone. Ku stated that the $36,000 in question was a reward to APS for helping Cheng run in the election and had nothing to do with Chan’s candidacy. Ku denied having arranged for Chan to stand as a candidate at the election. He also indicated that he had not instructed or arranged for Cheung to assist Chan in compiling any election report.", "zh-HK": "顧否認收取鄭的36,000‍元是鄭資助APS派人參選的代價。他指鄭表示想參加區議會選舉，但要人協助及保護他。顧指涉案的36,000‍元是APS協助鄭參選的酬勞和陳參‍選無關。顧否認有安排陳參選，亦表示他沒有指使或安排張協‍助陳撰寫任何選舉報告書。" } }, { "doc_id": 126, "seg_id": 37, "translation": { "en": "Chan stated that his participation in the 2015 Election had nothing to do with Ku’s receipt of $36,000 from Cheng. Chan admitted he had attended the gathering for APS members on 19 July 2015. During the gathering, Cheng talked about offering a sponsorship of $150,000 to APS for the latter to send someone to stand as a candidate at the election. However, Chan asserted that his agreeing to stand as a candidate at the election had nothing to do with the sponsorship offered by Cheng, and that he did not even know that a condition was attached to Cheng’s payment of the sum to APS.", "zh-HK": "陳表示他參加2015‍年選舉和顧收取鄭的36,000‍元無關。陳承認有出席APS成員在2015‍年7‍月19‍日的聚會，而會‍上鄭有提及贊助150,000‍元給APS派人出選，但陳力稱他同意參選和鄭的贊助費無關，而他更不知悉鄭支付APS的金錢是有附帶條件的。" } }, { "doc_id": 126, "seg_id": 38, "translation": { "en": "Chan denied that Cheng had during the meeting talked about going after Frederick Fung. He also denied having had discussions with Cheng and Ku in secret in order to prevent others from gaining knowledge of what they discussed. Chan claimed that as he was unable to obtain assistance from APS, he did not stand for election. However, he agreed that Cheung had prepared a candidacy proposal for him.", "zh-HK": "陳否認在會議中鄭曾提及過要追撃馮檢基，亦否認有‍和鄭及顧秘密商談，避免他人知悉談話內容。陳聲稱因為取不到APS的協助，他最終沒有參選，但他同意張有為他撰寫了一‍份參選計劃書。" } }, { "doc_id": 126, "seg_id": 39, "translation": { "en": "Apart from the above issues of fact, the defence’s stance was that none of the defendants had “corruptly” engaged in the conduct alleged by the prosecution as referred to in the charges.", "zh-HK": "除了上述事實爭議外，辯方的立場是控方指各被‍告‍人的行為並不符合控罪所指他們有“舞弊地”作出控‍方所指的行為。" } }, { "doc_id": 126, "seg_id": 40, "translation": { "en": "The trial judge’s findings", "zh-HK": "原審法官的裁決" } }, { "doc_id": 126, "seg_id": 41, "translation": { "en": "The trial judge first analyzed the parties’ disagreement as to fact. He pointed out that what Cheng said was not only confusing but wholly irrational. The trial judge said that, given Cheng’s financial situation at that time, he could not possibly have donated $36,000 to APS unconditionally for the purpose of maintaining contact with APS or filming Chan’s election campaign. The trial judge took the view that it was also not possible for Cheng to have all along kept his girlfriend Wan in the dark about the true intention of his subsidizing localists to stand as candidates at the election.", "zh-HK": "原審法官先分析雙方就事實上的分歧。原審法官指‍出鄭的說法不單混亂，更全不合情理。原審法官指出以鄭當‍時的經濟情況，他不可能是為了和APS保持聯絡或是為‍了拍攝陳的參選過程而無條件捐贈36,000‍元給APS。原審法‍官認為鄭亦不可能將他資助本土派人士參選的真正目的一直將其女友溫蒙在鼓裡。" } }, { "doc_id": 126, "seg_id": 42, "translation": { "en": "The trial judge emphasized that, had Cheng wanted to gather evidence or information on political conspiracies among localist organizations and pro-democrats, he could not possibly have acted in the manner as alleged in the present case, nor would he have “changed his voice” before answering Lee Man-ho Leos, about the choice of constituencies.", "zh-HK": "原審法官強調如鄭要搜查本土組織和泛民的政‍治陰謀證據或資料，他不可能以涉案的手法行事，更不會“先變聲”才回答李文浩問他有甚麼選區可以選擇。" } }, { "doc_id": 126, "seg_id": 43, "translation": { "en": "The trial judge rejected Cheng’s explanation that his true intention in offering to subsidize localist organizations was to inquire about the electoral conspiracies between them and the pro-democrats and that it had nothing to do with inducing others to stand as candidates at the election.", "zh-HK": "原審法官否定鄭的解釋指他提出資助本土組織的真正目的是查探它們和泛民之間的選舉陰謀和誘使他人參‍選無關。" } }, { "doc_id": 126, "seg_id": 44, "translation": { "en": "The trial judge pointed out that at the meetings on 17 and 19 July 2015, Cheng never told Ku that he wanted APS members to help him stand as a candidate at the election. Nor did the messages among APS members mention that Cheng had asked APS members to help him stand as a candidate at the election and that he would pay a reward to APS. The trial judge pointed out that Ku himself had admitted he had never told Chan that Cheng had requested APS to provide support services to him. The trial judge stressed that Ku’s version in no way tallied with the documentary evidence, which showed that the first instalment of $36,000 paid by Cheng was related to Chan’s standing as a candidate at the election.", "zh-HK": "原審法官指出在2015年7月17日和19日的會面，鄭從來沒有向顧提出過要APS成員助他參選，而APS成員的通訊內容亦沒有提及過鄭要求APS成員助他參選，及會支‍付酬勞給APS。原審法官指出顧本人亦承認從來沒有向陳說過鄭要求APS提供支援服務給他。原審法官強調顧的說‍法更和案中的文件證據全不脗合，原因是該些文件顯示鄭支付的36,000元首期是和陳的參選有關。" } }, { "doc_id": 126, "seg_id": 45, "translation": { "en": "The trial judge also pointed out that Ku was repeatedly evasive under cross-examination and that what he said was unconvincing. The trial judge did not find Ku to be a credible or reliable witness.", "zh-HK": "原審法官亦指出顧在盤問下屢次迴避問題，而其說‍法更不具說服力。原審法官認定顧並非一名可信或可靠的證人。" } }, { "doc_id": 126, "seg_id": 46, "translation": { "en": "The trial judge took the view that what Chan said, namely that his decision to stand as a candidate at the election was his own and had nothing to do with Ku’s influence, made no sense and did not tally with the evidence of Cheng and Cheung as well as the documentary evidence. The trial judge considered that Chan was not a veracious and reliable witness and that it would have been of no significance even if Chan had originally wished to stand as a candidate at the election.", "zh-HK": "原審法官認為陳指自己決定參選是個人的決定和顧的影響無關的說法不合理，亦與鄭和張的證言及文件證據不‍符。原審法官認為陳並非一‍名誠實可靠的證人，而即使他本來也想參選一事並不重要。" } }, { "doc_id": 126, "seg_id": 47, "translation": { "en": "The trial judge found that the evidence of all the prosecution witnesses was rational and reasonable and was also supported by documentary evidence. On the contrary, the trial judge rejected the evidence of the three defendants, finding it evasive, ambiguous, unreasonable and illogical, and even contrary to the documentary evidence.", "zh-HK": "原審法官裁定所有控方證人的證供合情合理，而他‍們的證供都得到文件證據支持。反之，三‍名被‍告‍人的證供躲閃隱晦、含糊不清、不合情理、違反邏輯，更和文件證據背道而馳。原審法官拒絕接納三‍名被告人的證供。" } }, { "doc_id": 126, "seg_id": 48, "translation": { "en": "The trial judge found that Ku and Chan agreed to have Chan stand as a candidate at the election by reason of Cheng’s monetary inducement. The trial judge pointed out that Cheng did not care whether the candidate(s) sent by APS would win the election. His sole concern was whether Chan would stand as a candidate in the constituency specified by him and obtain 200 votes. The trial judge emphasized that the amount Cheng agreed to pay went well beyond the statutory maximum for election expenses, and that Cheng had even clearly stated that the money would be paid in cash and could be spent freely. The trial judge took the view that Cheng’s funding was meant to be a monetary reward for Chan to stand as a candidate at the election, not an election donation. The trial judge further stated expressly that it was Cheng’s intention to use money to influence the results of the election, and that Ku and Chan must have known that Cheng was using money to buy their clout, but they still accepted Cheng’s reward and had Chan stand as a candidate at the election.", "zh-HK": "原審法官裁定顧和陳都是為了鄭的金錢引誘而協‍議由陳參選。原審法官指出鄭不關心APS派出的參選人能否勝出，而只重視陳是否在他指定的選區參選及取得200‍票。原審法官強調鄭答應支付的金額遠超法定選舉經費的上限，更表明金錢會以現金發放，並且可以自由運用。原‍審法官認為鄭出資的目的是作為陳參選的金錢報酬而非選舉捐‍贈。原審法官更表明鄭的目的是用金錢去影響選舉結果，而顧和陳亦必然知道鄭是用錢收買他們的影響力，但他們仍‍然接受鄭的酬勞，由陳參選。" } }, { "doc_id": 126, "seg_id": 49, "translation": { "en": "The trial judge also made the following findings of fact:", "zh-HK": "原審法官亦作出下列事實裁決：" } }, { "doc_id": 126, "seg_id": 50, "translation": { "en": "Under the circumstances alleged in the charges, Cheng approached the relevant witnesses and offered them a subsidy of $150,000 to $200,000 as an inducement for them to stand as candidates in specified constituencies at the 2015 Election. The sums subsidized by Cheng would be paid in cash and the payees could freely decide how to use the sums; and", "zh-HK": "鄭在有關控罪所指的情況下接觸相關證人，向他‍們提出資助15‍至20‍萬元，作為他們在2015‍年選‍舉出選某指定選區的誘因；鄭資助的款項會以現‍金支付，而收款人可以自行決定如何運用該些款‍項；及" } }, { "doc_id": 126, "seg_id": 51, "translation": { "en": "Cheng did put forward the subsidy plan to Ku, and Ku indicated that he would consider sending someone to stand as a candidate at the election. Ku also notified Chan, Cheung and other APS members on 15 and 17 July 2015 that a meeting would be held on 19 July 2015, and set out in the messages the conditions of subsidy proposed by Cheng. At the meeting on 19 July 2015, Cheng reiterated his subsidy proposal and expressly said that as long as a member of APS submitted a candidacy plan, stood as a candidate in the specified constituency at the election and obtained about 200 votes, APS could receive a cash subsidy of $150,000 to $200,000. At that time, Chan indicated that he would stand as a candidate at the election and immediately gave a description of his background. Afterwards, Ku, Chan and Cheung had a discussion and decided to accept Cheng’s proposal and to have Cheung help Chan prepare the candidacy report. Under the agreement among the parties, the $150,000 subsidy by Cheng would be paid by three instalments, the first instalment being 25% of the total amount. Cheung helped Chan prepare the candidacy report, which was then given to Cheng by Ku. Cheng claimed that the report was too simple and therefore, on 9 August 2015, he only paid $36,000 to Ku as the first instalment, instead of the originally agreed 25%, i.e. $37,500.", "zh-HK": "鄭有向顧提出資助計劃，而顧亦表示會考慮派人參選並在2015‍年7‍月15‍日及17‍日通‍知陳、張及其他APS成員在2015‍年7‍月19‍日開會，並在訊‍息中列出鄭提出的資助條件。在2015‍年7‍月19‍日的會議，鄭重申其資助建議，表明只要APS有成‍員交出選舉計劃書，並在指定地區參選及取得大約200‍票，APS便可以得到15‍至20‍萬元現金資‍助。當‍時陳表示會出選，並即時介紹自己的背景。其‍後，顧、陳和張商討並決定接受鄭的建議及由張協助陳準備其參選報告書。根據雙方的協議，鄭資助的15‍萬元，會分三‍期支付，第一期為總額的 25%。張協助陳撰寫選舉報告書，而顧則將報‍告‍書交了給鄭。鄭以報告書太簡單為理由，在2015‍年8‍月9‍日只支付了36,000‍元給顧作為第‍一‍期金額，而非原定的25%，即37,500‍元。" } }, { "doc_id": 126, "seg_id": 52, "translation": { "en": "The trial judge pointed out that the screenshots of dialogue messages shown in the 52 photographs (Exhibit P46) did not tally with what Ku said. The trial judge stressed that Exhibit P46 was contained in Cheung’s mobile phone, and 15 of those photographs (Exhibit P47) were stored in Ku’s notebook computer. The trial judge took the view that Exhibit 46, being real evidence, would not be hearsay evidence and would therefore be admissible if it was not used to prove the truth of the contents of the messages. Exhibit P47 was admissible as it was relevant to whether the three defendants and Cheung had reached an agreement. The undisputed record showed that it was only under cross-examination by the prosecution that Cheng admitted having sent Exhibit P46 to Ku, and by that time counsel for Ku had already finished cross-examining Cheng.", "zh-HK": "原審法官指出52‍張相片（證‍物 P46）所顯示的通‍訊對話的截圖和顧的說法不脗合。原審法官強調證‍物 P46是載於張的手提電話內，而其中有15‍張相片（證物 P47）是儲‍存在顧的手提電腦內。原審法官認為證物 P46是實物證‍據，如‍果並非用作證明通訊內容為真實，便非傳聞證據，可以呈‍堂。證物 P47則和三名被告人和張是否有達成協議有‍關，故可以呈堂。無爭議的紀錄顯示鄭是在被控方盤問下才承認證物 P46是由他傳送給顧，而當時顧的代表大律師已盤問完鄭。" } }, { "doc_id": 126, "seg_id": 53, "translation": { "en": "Based on the prosecution evidence, the trial judge formed the view that the only reasonable inference was that there was an agreement among the three defendants and Cheung by which Cheng would offer a subsidy of $150,000 as consideration for APS sending Chan to stand as a candidate in a constituency specified by Cheng, while Cheung would be responsible for assisting Chan in preparing the election plan and other documentation for the election.", "zh-HK": "原審法官認為根據控方的證據，唯一的合理推論是三‍名被告人和張有協議，由鄭提供15萬元資助金額，作為APS派陳在鄭指定的選區參選的代價，而張則負責協助陳撰‍寫選舉計劃書及其他參選文書工作。" } }, { "doc_id": 126, "seg_id": 54, "translation": { "en": "As to what constituted conduct which was engaged in “corruptly” as alleged in the charges, the trial judge examined in great detail the relevant statute and decided cases. He pointed out that merely engaging in conduct prohibited by the statute did not necessarily constitute a criminal act, unless such conduct was engaged in “corruptly”. The trial judge further agreed that “corruptly” was an additional element of the offence which the prosecution bore the burden of proving. The trial judge found that the word “corruptly” did not carry any meaning of “wickedly”, “immorally”, “dishonestly” or other similar meanings, but required that the offender engaged in criminal conduct for the purpose of something plainly prohibited by the law. The trial judge found that the prosecution had to prove “dual intent” on the part of the defendant, i.e. not only did the defendant intend to induce another person, or be induced by another person, to stand or not to stand as a candidate at the election, but the defendant also intended to prevent the election from being conducted fairly, openly and honestly.", "zh-HK": "就如何構成控罪所指的“舞弊地”作出的行為，原‍審法官有非常詳細分析有關的條例和判例。原審法官指出單單作出法例禁止的行為，不一定構成犯罪行為，除非該些行為是“舞弊地”作出。原審法官更同意“舞弊地”是額外的罪行元素，故控方有責任證明該元素。原審法官裁定“舞‍弊地”一詞沒有邪惡地、不道德地、不誠實地或其他類‍近的意思，但犯案人作出涉案行為時，他必須以法例明顯禁止的東西為犯案目的。原審法官裁定控方不單要證明被告人有引誘別人或受別人引誘去參選或不參選的意圖，還須要證明被告人有意圖妨礙選舉在公平、公開和誠實的情況下進‍行的“雙重意圖”。" } }, { "doc_id": 126, "seg_id": 55, "translation": { "en": "The trial judge found that Cheng corruptly offered advantages to the persons specified in Charges 1, 2, 4, 6, 9 and 11 as an inducement for them to stand or get a third party to stand as a candidate at the 2015 Election, contrary to section 7(1)(a) or 7(1)(g) of the Ordinance.", "zh-HK": "原審法官裁定鄭有舞弊地向第‍一、二、四、六、九和十一‍項控罪所指的人士提供利益，作為該些人士在2015‍年選舉參選或令第三者參選的誘因，違反了《條例》第7(1)(a)或7(1)(g)條。" } }, { "doc_id": 126, "seg_id": 56, "translation": { "en": "The trial judge also found that the three defendants conspired with Cheung for Ku to obtain an advantage from Cheng as an inducement for Ku to get Chan to stand as a candidate at the 2015 Election, contrary to section 7(1)(g) of the Ordinance and section 159A of the Crimes Ordinance, Cap. 200. At the same time, the trial judge found that the three defendants engaged in the above conduct corruptly. Based on the aforesaid findings, the trial judge convicted Cheng on Charges 1, 2, 4, 6, 9, 11, and 13 and convicted Ku and Chan on Charge 13.", "zh-HK": "原審法官亦裁定三名被告人和張串謀，使顧從鄭取‍得利益，作為顧促使陳參加2015‍年選舉的誘因，違反《條‍例》第7(1)(g)條及香港法例第200章《刑事罪行條例》第159A條。原審法官同時裁定三名被告人舞弊地作出上述行為。基於上述裁‍決，原審法官裁定鄭第‍一、二、四、六、九、十一和十三‍項控罪罪名成立，而顧和陳第‍十三‍項控罪亦罪名成立。" } }, { "doc_id": 126, "seg_id": 57, "translation": { "en": "The trial judge took the view that the alternative charges, i.e. Charges 3, 5, 8, and 10 were not necessary, and also acquitted Cheng of Charges 7, 8 and 12 for the reason that the circumstances under which Cheng offered the advantages alleged in those charges were not clear.", "zh-HK": "原審法官認為第‍三、五、八、十‍項交替控罪無必要，而‍第七、八及十二‍項控罪所指鄭提供利益的情況不清晰，因‍而裁定鄭就該些控罪罪名不成立。" } }, { "doc_id": 126, "seg_id": 58, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 126, "seg_id": 59, "translation": { "en": "None of the three defendants took issue with the findings of fact made by the trial judge, but each of them appealed against conviction, putting forward a number of grounds in support.", "zh-HK": "三名被告人對原審法官作出的事實裁決不表異‍議，但他們都列出多項理由，支持他們個別的上訴。" } }, { "doc_id": 126, "seg_id": 60, "translation": { "en": "Cheng acted in person. In his homemade “Grounds of Appeal”, Cheng alleged that the trial judge erred in finding that he had “corruptly” engaged in the misconduct in question, i.e. offering advantages to others as inducements for them to stand or get third parties to stand as candidates at the 2015 Election. Cheng submitted that the trial judge failed to interpret the word “corruptly” in its broadest sense and also disregarded the interpretations of the same term in other common law jurisdictions.", "zh-HK": "鄭沒有律師代表，親自行事。在其撰寫的“上訴理‍由書”中，鄭指原審法官錯誤地裁決他有“舞弊地”作出涉‍案的不當行為，即向他人提供利益為誘因，促使該些人參‍選‍或令第三者參選2015年選舉。鄭認為原審法官在解‍釋“舞弊地”一詞時，沒有以最廣義去理解，亦忽視了其他普‍通法地區就同一用詞的解釋。" } }, { "doc_id": 126, "seg_id": 61, "translation": { "en": "Cheng submitted that relying solely on the trial judge’s own interpretation of the term “corruptly” would render the scope of the relevant offences so wide as to encompass what was ordinary and reasonable election conduct, and this would go against the development of democratic elections. Cheng submitted that the trial judge should have accepted the proposition made by Mr. Douglas Kwok, counsel for Ku, namely that the court should have called a political scientist to give evidence as an “expert witness” and explain the correct meaning of the term “corruptly” in order to clarify what acts would contribute to the sustainable development of political parties and what acts would be “corrupt”.", "zh-HK": "鄭認為單靠原審法官自行解讀“舞弊地”一詞會‍令有關罪行覆蓋面太廣泛，將一些平常和合理的選舉行‍為包括在罪行條文內，不利民主選舉的發展。鄭認為原審法官應該接納代表顧的郭憬憲大律師的說法，即法庭要傳召政治科學家出庭，以“專家證人”身份作證，解釋“舞弊地”一‍詞的正確意義，以顯示甚麼行為可以令政黨能持續發展及甚麼行為才屬“舞弊”。" } }, { "doc_id": 126, "seg_id": 62, "translation": { "en": "Cheng further pointed out that the approach taken by the trial judge, which included not allowing Mr. Kwok to cross-examine the witness in order to gauge how he understood certain political science and election issues so as to assist the court in properly interpreting the term “corruptly”, indicated that the trial judge was trying the case with a “biased” mindset.", "zh-HK": "鄭更指原審法官的處理方法，包括不批准郭大律師盤問證人以測試他如何理解某些政治科學及選舉議題的認‍知以協助法庭恰當地詮釋“舞弊地”一詞顯示原審法官是在“偏見”的思維狀態下審理案件。" } }, { "doc_id": 126, "seg_id": 63, "translation": { "en": "Cheng further pointed out that the interpretation by the trial judge of the term “corruptly” was in conflict with the Hong Kong Bill of Rights Ordinance (“Bill of Rights”) and the International Covenant on Civil and Political Rights, which conferred on Hong Kong residents the right to participate in elections freely and without restriction.", "zh-HK": "鄭更指原審法官就“舞弊地”一詞的解釋抵觸了《香港人權法案條例》（《人權法》）和《公民及政治權利國際公約》賦予香港居民自由及無限制地參與選舉的權利。" } }, { "doc_id": 126, "seg_id": 64, "translation": { "en": "Cheng submitted that the provision of a monetary subsidy, as an inducement for another person to stand as a candidate at an election, was a monetary transfer necessary for the protection of the right of election and also part of the right to participate in elections freely and without restriction, and therefore should not constitute an offence.", "zh-HK": "鄭認為給予金錢資助，作為他人參選的誘因是保障選舉權必須的金錢輸送，是自由及無限制地參與選舉權利的一部分，因此不應構成罪行。" } }, { "doc_id": 126, "seg_id": 65, "translation": { "en": "Cheng further stressed that the candidate whom the public had in mind needed sufficient money as an inducement to participate in an election so that he/she would have the motivation to step forward to speak for the public and be able to freely express their wishes. Cheng asserted that the Ordinance had an “innate defect”, being not completely in line with the principles stipulated in the Bill of Rights and the Basic Law.", "zh-HK": "鄭更強調市民心目中的候選人要有足夠金錢作為誘因參與選舉，而候選人才會有動力站出來代表市民發聲，及能自由地表達其意願。鄭力稱《條例》有“先天性缺‍陷”，沒有完全配合《人權法》和《基本法》訂明的原則。" } }, { "doc_id": 126, "seg_id": 66, "translation": { "en": "Cheng set out the background to the whole incident in another detailed skeleton submission. He asserted that those he sponsored were candidates within the meaning of the Ordinance, the reason being that they had openly stated that they were minded to stand as candidates at the election, and therefore the subsidies he agreed to give them were “election donations” which were permissible under the Ordinance. Cheng asserted that the respective prosecution witnesses could be regarded as “statutory candidates” prior to the offences in question, and therefore, even if he did subsidize them in standing as candidates at the election, his subsidies would not constitute inducements to their standing as candidates at the election.", "zh-HK": "在另一份詳盡的陳詞大綱，鄭列出整件事件的背‍景，鄭力稱他表示資助的人是《條例》所指的候選人，原‍因是他們都曾公開表示打算參選，因此他同意向該些人士作出的資助是“選舉捐贈”，是《條例》容許的。鄭力稱各有關的控方證人在案發前已可被視為“法定候選人”，故即使他‍有資助他們出選，他的資助亦不會構成他們參選的誘因。" } }, { "doc_id": 126, "seg_id": 67, "translation": { "en": "Citing cases such as Mok Charles Peter v Tam Wai Ho (2012) 15 HKCFAR 489 and HKSAR v Lee York Fai, CAAR 3/2011, Cheng stressed that candidates’ public announcements within the meaning of the Ordinance did not have to follow a particular form or style. He submitted that as long as a person had made preparations for the election by words or by conduct, that person was a candidate within the meaning of the Ordinance, and the subsidies offered to such candidates were election donations and not bribes. Cheng asserted that those to whom he offered donations were either “paratrooper candidates” or “organization candidates”, and the prosecution witnesses had all deliberately planned to stand as candidates at the election. It followed, it was submitted, that the subsidies he offered were not inducements to their standing as candidates at the election and did not contravene section 7(1)(a) or 7(1)(g) of the Ordinance.", "zh-HK": "鄭援引Mok Charles Peter v Tam Wai Ho (2012) 15 HKCFAR 489及香港特別行政區 訴 李躍輝，CAAR 3/2011等案，強調要構成《條例》所指的候選人作出的公開宣‍布，無需按特定的形式或說法。他認為只要某人在言語上或行為上有作出過選舉準備，便是《條例》所指的候選人，而向該‍些候選人提供的資助則是選舉捐贈而非賄款。鄭力稱他提出捐‍助的人都是“候選傘兵”或“候選組織”，而控方證人都‍是曾處心積慮打算參選的人。因此他提出的資助並非他‍們參選的誘因，亦沒有抵觸《條例》第 7(1)(a)或7(1)(g) 條。" } }, { "doc_id": 126, "seg_id": 68, "translation": { "en": "In his submissions to this Court, Cheng stressed that even if his defence and/or testimony were not accepted at trial, the prosecution still bore the burden of proving his guilt beyond reasonable doubt. He pointed out that those whom he requested to stand as candidates at the election had long ago expressed the intention to do so, and hence the sums he offered were not inducements to their standing as candidates at the election and he did not violate section 7(1)(a), (1)(c) or (1)(g) of the Ordinance. Cheng asserted that the exhibits at trial, including reports by certain online media, had pointed out that a lot of localist organizations, such as those involved in the present case, indicated they would send people to stand as candidates at the 2015 Election, and there were reports showing that Wong Chun-yeung and Leung Chung-hang Sixtus would stand as candidates at the election. Cheng further pointed out that there were other reports of the same type showing that Wong Hok-lai, Tsang Ka-lam and Lee Man-ho Leos had also publicly stated that they would stand as candidates at the election. Therefore, it was submitted, the monies offered to them were not inducements to their standing as candidates at the election.", "zh-HK": "鄭向法庭陳述時強調即使他在原審時的答辯理由及/或證供都不獲接納，控方仍有舉證責任在毫無合理疑點下證明他的罪行。他指他要求參選的對象早已表明有參選意‍圖，因此他提供的金錢並非他們參選的誘因，而他亦沒有干犯《條例》第7(1)(a)、(1)(c)或(1)(g)條。鄭力稱原審時有‍的證物，包括某些網上傳媒的報導，已指出很多本土組織，包‍括涉案的組織都表示會派人參加2015年選舉，而有報導顯示王進洋及梁頌恆會參選。他亦指有其他同類‍的報導顯示黃‍學‍禮、曾家霖和李文浩亦有公開表示會參選，因此向他們提供的金錢並非他們參選的誘因。" } }, { "doc_id": 126, "seg_id": 69, "translation": { "en": "With a view to strengthening his case, Cheng applied to the Court to adduce some fresh evidence, including reports by certain online media and the returns of election expenses of Wong Chun-yeung, Leung Chung-hang Sixtus and Lee Man-ho Leos. Cheng was of the view that those documents could support his case. He was able to produce the returns of election expenses of the aforesaid three individuals but could no longer produce reports by other online media in order to show that the prosecution witnesses had publicly announced their intention to stand as candidates at the 2015 Election.", "zh-HK": "為了強化他的立場，鄭向法庭申請提交一些新證‍據，包括某些網上傳媒的報導和王進洋、梁頌恆及李文浩的選舉開支申報書。他認為該些文件能支持他的立場。鄭能出‍示上述三人選舉開支申報書，但卻再不能出示其他網上傳‍媒的報導，以顯示控方證人曾公開宣布有意參加2015年選‍舉。" } }, { "doc_id": 126, "seg_id": 70, "translation": { "en": "Cheng expressed doubts about the integrity of certain prosecution witnesses. He pointed out that those candidates were already “statutory candidates” at the time of the offences, and it was only that they did not stand as candidates at the election as expected after the material time, nor did they make returns of the election donations they had received. Cheng asserted that those prosecution witnesses were engaging in sophistry when they denied in their testimonies that they had publicly announced their standing as candidates at the election, the purpose of which was to prevent their election bribery from being revealed. Cheng also stated that the aforesaid returns of election expenses could support his case.", "zh-HK": "鄭對個別控方證人的誠信表示懷疑。他指案發時，該些候選人已是“法定候選人”，而他們只是在案發後沒有如期參選，亦沒有申報他們曾收受的選舉捐贈。鄭力稱該些控‍方證人作供時否認曾公開宣布參選是狡辯，目的是避免他‍們賄選的行為被揭露。鄭亦指上述選舉開支申報書能支持他的立場。" } }, { "doc_id": 126, "seg_id": 71, "translation": { "en": "In respect of Charge 13, Cheng stated that he had no idea which member of APS would stand for the election, and the $36,000 he paid was sponsorship to that organization. Cheng stressed that before the incident in question, Ku had spread the word around that they intended to stand as candidates at the election. Cheng’s position was that Chan was a candidate and Ku was an election expense agent. He himself was merely offering an election donation to a candidate through an agent.", "zh-HK": "就第十三項控罪，鄭表示他不知悉APS哪一位成‍員會參選，而他支付的36,000‍元是贊助該組織。鄭強調事發前，顧已四出放風，表示他們有參選意圖。鄭的立場是陳是候選人而顧是選舉開支代理人。他則只是透過代理人向候選人提供選舉捐贈。" } }, { "doc_id": 126, "seg_id": 72, "translation": { "en": "Cheng further stated that even if he had had bad motives, he had not committed a crime as a matter of law.", "zh-HK": "鄭更指即使他有不良的動機，但從法律角度而言，他並沒有犯法。" } }, { "doc_id": 126, "seg_id": 73, "translation": { "en": "Cheng stated that the prosecution had submitted to the court his statement of defence and claimed that such an act violated the legal professional privilege to which he was entitled and which should attach to communications between a lawyer and his client.", "zh-HK": "鄭指控方曾將他的自辯供詞呈堂，並聲稱該做法違‍反他享有的律師和當事人通訊應享有的特權。" } }, { "doc_id": 126, "seg_id": 74, "translation": { "en": "Mr. Kwok, counsel for Ku, submitted that the trial judge had erred in admitting some hearsay evidence, namely Exhibits P27, P46 and P47.", "zh-HK": "代表顧的郭憬憲大律師則指原審法官錯誤地採納了一些傳聞證據，即證物 P27、P46和P47為證。" } }, { "doc_id": 126, "seg_id": 75, "translation": { "en": "Mr. Kwok submitted that the trial judge should not have ruled, merely because a document more or less the same as Exhibit P27 was stored in Ku’s computer, that Ku had knowledge of the contents of Exhibit P27. Therefore, it was submitted, the trial judge erred in relying on Exhibit P27 to infer that Ku knew that Chan would stand as a candidate at the election and to hold that Ku caused Chan to stand as a candidate at the election and thereafter discussed with Cheng the matters concerning participation in the election, the reason being that the trial judge relied on some hearsay evidence in drawing the aforesaid inference.", "zh-HK": "郭大律師認為原審法官不應因為顧電腦中儲存了和證物 P27大致相同的文件，便顯示他對證物 P27的內容有認知。因此原審法官依賴證物 P27來推論顧知悉陳會參選並且是他促使陳參選後再和鄭商討參選事宜的決定是錯誤的，原因是他有依賴一些傳聞證據來作出上述推論。" } }, { "doc_id": 126, "seg_id": 76, "translation": { "en": "Mr. Kwok pointed out that it was only during cross-examination by the prosecution that Cheng stated it was he who sent Exhibit P46 to Ku, but by that time the defence had already finished cross-examining Cheng and therefore did not have an opportunity to cross-examine Cheng on that issue, and this was procedurally unfair to Ku. In making his submissions to this Court, Mr. Kwok withdrew the above contention but insisted that Cheng’s version was neither part of nor verified in the prosecution case, and hence the trial judge’s reliance on Cheng’s version was also procedurally unfair to Ku.", "zh-HK": "郭大律師指出鄭是在控方盤問時才指證物P46是他傳給顧的，但當時辯方已完成盤問鄭，故沒有機會就該議‍題盤問鄭，因此程序上有對顧不公。向法庭陳述時，郭‍大‍律‍師收回上述指稱，但仍堅持鄭的說法並非是控方的案‍情的一部分，亦沒有在控方案情內獲得證實，因此原審法‍官依賴鄭的說法在程序上亦是對顧不公。" } }, { "doc_id": 126, "seg_id": 77, "translation": { "en": "Mr. Kwok submitted that the trial judge interpreted the term “corruptly” without the assistance of the expert evidence of a political scientist, and such interpretation would limit the right of those concerned to stand as candidates at elections, such right having been conferred by the Basic Law and the Bill of Rights.", "zh-HK": "郭大律師指原審法官在詮釋“舞弊地”一詞缺‍乏政治科學家的專家證據的協助，因此他的詮釋方式會限制了有關人士根據《基本法》和《人權法》所賦予的參選權。" } }, { "doc_id": 126, "seg_id": 78, "translation": { "en": "Mr. Kwok also submitted that the trial judge’s finding on the meaning of “corruptly” was based on his erroneous view that “it is most obvious in the context of buying clout with money” and “vote snatching per se is not corrupt, but it is a different matter to achieve such a goal by using money. Otherwise, wealthy people could gain unfair advantages whereas the right of those without wealth to be voted for would be unfairly undermined.” Mr. Kwok submitted that the trial judge had overlooked the object of the Ordinance which was to require candidates to properly account for benefits and not to eradicate the acceptance of benefits. Mr. Kwok also submitted that the trial judge’s approach restricted the right of Hong Kong people to stand as candidates at elections, as conferred by the Basic Law and the Bill of Rights.", "zh-HK": "郭大律師亦指原審法官裁定“舞弊地”的意思是建基在他錯誤地認為“使用金錢去收買影響力的時候至為明顯”及“鎅票本身並非舞弊，但是用金錢達到這個目標便不‍是同一回事，否則，有財力的人便可以取得不公平的優‍勢，無財力的人的被選權會被不公平地削弱”。郭大律師認為原審法官忽略了《條例》的宗旨是要求候選人妥善交代利益，而不是杜絕收取利益。郭大律師亦認為原審法官的處‍理方法限制了《基本法》和《人權法》賦予香港市民的參‍選‍權。" } }, { "doc_id": 126, "seg_id": 79, "translation": { "en": "Mr. Kwok contended that the candidate referred to in the Ordinance in respect of election donation could become a candidate only after receiving the donation, and therefore the financial assistance received by the candidate before he became a candidate could be an election donation, and as long as the person receiving the subsidy made a return for his election expenses properly, the relevant subsidy would be a lawful election donation. Mr. Kwok took the stance that both the $150,000 to $200,000 Cheng had promised to pay and the $36,000 he had actually paid could be regarded as election donations, and that as long as Chan made a return upon the conclusion of the election, the monetary transactions in question would be lawful. Mr. Kwok stressed that when Ku was arrested, the time limit for making a return for the election expenses had not yet expired. It was submitted that the trial judge wrongly speculated that Chan would definitely not make a return for the amount he accepted.", "zh-HK": "郭大律師力稱《條例》中選舉捐贈所指的候選人可‍以是在接受捐贈後才成為候選人。因此在候選人未成為候‍選人前接受的金錢資助，可以是選舉捐贈，而只要接受資‍助的人恰當地就選舉開支作出申報，則有關資助是合法的選‍舉捐贈。郭大律師的立場是鄭答應支付的15至20萬元和他已支付的36,000元都可以視作選舉捐贈，而只要陳在選‍舉完結後作出申報，則涉案的金錢交易是合法的。郭大律師強‍調顧被捕時，申報選舉開支期限尚未屆滿。他認為原審法‍官有錯誤地揣測陳必定不會申報所接受的款項。" } }, { "doc_id": 126, "seg_id": 80, "translation": { "en": "Mr. Kwok submitted that, in finding that the $36,000 Cheng had paid was a reward for Chan’s standing as a candidate at the election and not a donation for election expenses, the trial judge was less than clear about the allegation of “inducement” in the charge. Mr. Kwok submitted that the prosecution case did not support the proposition that the $36,000 paid by Cheng was an “inducement” for Chan to stand as a candidate at the election.", "zh-HK": "郭大律師指原審法官裁定鄭支付36,000‍元是作為陳參選的報酬，而非選舉開支的捐贈，顯示他混淆了控罪所‍指“誘因”的指控。郭大律師指控方的案情不支持鄭支付的36,000元是陳參選的“誘因”的說法。" } }, { "doc_id": 126, "seg_id": 81, "translation": { "en": "Mr. Edwin Choy, representing Chan, did not adopt the position or any of the grounds of appeal put forward by Mr. Kwok, but instead raised two other grounds of appeal. He argued that the trial judge had not properly dealt with or had wrongly dealt with the legal definition of the term “corruptly” under the Ordinance.", "zh-HK": "代表陳的蔡維邦大律師不採納郭大律師的立場及任何一個上訴理由，但提出另外兩項上訴理由。他指原審法‍官沒有適當地或錯誤地處理《條例》中所指的“舞‍弊‍地”一詞的法律定義。" } }, { "doc_id": 126, "seg_id": 82, "translation": { "en": "Mr. Choy pointed out that section 7(1)(g) of the Ordinance provided that it was an offence only for a person to corruptly solicit or accept an advantage as an inducement to get, or try to get, another person to stand or not to stand as a candidate at an election, and therefore, “corruptly” must be an element of the charge bearing a substantive meaning, and the prosecution had to prove that the element was established before the defendant could be convicted.", "zh-HK": "蔡大律師指出《條例》第 7(1)(g) 條列出任何人舞‍弊地索取或接受利益作為另一人或試圖令另一人在選舉中參選或不參選的誘因，才構成罪行，因此“舞弊地”必然是擁有實質意義的控罪元素，而控方亦必須證明該元素成‍立，法庭才能將被告人定罪。" } }, { "doc_id": 126, "seg_id": 83, "translation": { "en": "Mr. Choy submitted that the approach to the interpretation of the term “corruptly” in the cases cited by the prosecution at trial, including Copper v Slade (1858) 6 HLC 746, Bewdley Election Petition (1869) 19 LT 676, R v R E Low [1961] HKLR 13 and HKSAR v Chim Pui Chung (HCMA 955/1999), did not apply in the present case.", "zh-HK": "蔡大律師認為原審時，控方援引的案例包括Copper v Slade (1858) 6 HLC 746、Bewdley Election Petition (1869) 19 LT 676、R v R E Low [1961] HKLR 13 和HKSAR v Chim Pui Chung (HCMA 955/1999) 等案詮釋“舞弊地”（corruptly）一詞的方式不適用於本案。" } }, { "doc_id": 126, "seg_id": 84, "translation": { "en": "Mr. Choy submitted that, in order to establish a corrupt conduct within the meaning of the Ordinance, the prosecution had to prove that there existed, by an objective standard, a corrupt element in the defendant’s conduct and that the defendant had, by a subjective standard, guilty knowledge/corrupt intent. Mr. Choy submitted that “corruptly” should refer to conduct of cheating, deceiving, immorality or dishonesty.", "zh-HK": "蔡大律師認為要構成《條例》所指的舞弊行為，控‍方須證明被告人的行為在客觀的標準上存在舞弊元素及被告人在主觀的標準上存有犯罪認知/舞弊意圖（corrupt intent）。蔡大律師認為“舞弊地”應是指某些作弊、造假、不道德或不誠實的行為。" } }, { "doc_id": 126, "seg_id": 85, "translation": { "en": "In support of his stance, Mr. Choy cited cases in Singaporean law courts such as PP v Khoo Yong Hak [1995] 2 SLR 283, PP v Chan Wing Seng [1997] 2 SLR 426 and PP v Low Tiong Choon [1998] 2 SLR 878.", "zh-HK": "蔡大律師援引新加坡法院在PP v Khoo Yong Hak [1995] 2 SLR 283 及PP v Chan Wing Seng [1997] 2 SLR 426 及PP v Low Tiong Choon [1998] 2 SLR 878等案支持他的立‍場。" } }, { "doc_id": 126, "seg_id": 86, "translation": { "en": "Mr. Choy contended that in order to establish the offence, the prosecution did not only have to prove that the defendant had performed certain corrupt conduct, but also had to prove that in performing such corrupt conduct, the defendant was aware that his own conduct was corrupt conduct by an ordinary and reasonable standard.", "zh-HK": "蔡大律師力稱要構成罪行，控方不單要證明被告人作出了某些舞弊行為，控方亦要證明在作出該些舞弊行為時，被告人意識到自己的行為從正常和合理的標準而言是舞‍弊行為。" } }, { "doc_id": 126, "seg_id": 87, "translation": { "en": "Mr. Choy pointed out that in Erlam & Ors v Rahman & Anor [2015] EWHC 1215 (Common), the court emphasized, in addressing the relevant issues, that the prosecution had to prove beyond reasonable doubt that the defendant was aware that the relevant criminal conduct was wrong:", "zh-HK": "蔡大律師指出在Erlam & Ors v Rahman & Anor [2015] EWHC 1215 (Common) 案，法庭在處理相關議題時強調控方要毫無合理疑點地證明被告人意識到相關犯罪行‍為是錯誤的：" } }, { "doc_id": 126, "seg_id": 88, "translation": { "en": "Mr. Choy submitted that the trial judge erred in agreeing with the prosecution that “corruptly” actually meant that the offender did the offending act “for the purpose of something plainly prohibited by the legislation”, and that such error was caused by the failure of the trial judge to deal with the relevant cases properly.", "zh-HK": "蔡大律師認為原審法官同意控方所指“舞弊地”的實際意義是犯案人作出涉案的行為時“必須以法例明顯地禁止的東西為犯案目的”的立場是錯誤的，是因為他沒有恰當地處理有關案例所導致的。" } }, { "doc_id": 126, "seg_id": 89, "translation": { "en": "Mr. Choy contended that the trial judge erred in finding that it was immaterial whether Chan was minded to stand as a candidate. Mr. Choy submitted that such desire on Chan’s part was material and favourable to him, and therefore the trial judge should not have regarded it as immaterial.", "zh-HK": "蔡大律師力稱原審法官錯誤地裁定陳是否有參‍選的意願並不重要。蔡大律師指陳的上述意願是重要的，亦是對他有利的，故原審法官不應視之為不重要。" } }, { "doc_id": 126, "seg_id": 90, "translation": { "en": "Mr. Choy submitted that the trial judge misunderstood the evidence and erred in rejecting Chan’s explanation, and that, in making the aforesaid erroneous decision, the trial judge failed to properly deal with the evidence favourable to Chan and the evidence adverse to the prosecution. Mr. Choy stressed that Chan was well-off and unlikely to have committed the offence in question.", "zh-HK": "蔡大律師指原審法官誤解證據及錯誤地拒絕接‍納陳的解釋，而在作出上述錯誤決定時，原審法官沒有恰‍當地處理對陳有利的證據和對控方案情不利的證據。蔡大律師強‍調陳的家境富裕，不應會干犯有關罪行。" } }, { "doc_id": 126, "seg_id": 91, "translation": { "en": "Therefore, Mr. Choy submitted that the conviction of Chan was unsafe.", "zh-HK": "因此，蔡大律師認為針對陳的定罪決定是不穩妥的。" } }, { "doc_id": 126, "seg_id": 92, "translation": { "en": "Although Mr. Choy listed a number of decided cases in his written submission to support his position, he only extracted a few paragraphs from the judgments of those cases without analyzing the background of and the issues involved in those cases. Nor did Mr. Choy make any further reply after Mr. Jonathan Man, Senior Assistant Director of Public Prosecutions for the respondent, addressed why those cases were not applicable to the present case.", "zh-HK": "雖然蔡大律師在其書面陳述列出多宗案例支持他的立場，但他只是節錄該些案例的判案書內少部分的段落，而‍沒有分析該些案例處理的議題及背景。在答辯方萬德豪高‍級助理刑事檢控專員指出該些案例為何對本案不適用時，蔡‍大‍律‍師亦沒‍有再作出回應。" } }, { "doc_id": 126, "seg_id": 93, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 126, "seg_id": 94, "translation": { "en": "One of the duties of a judge is to interpret statutes by reference to a number of factors such as the language of the statutes, the legislative intent and purpose, and precedents of similar cases, etc. Cheng and Mr. Kwok submitted that the trial judge should have enlisted expert assistance in interpreting the legislation, but this suggestion is wholly unfounded and plainly wrong. In my view, the suggestion made by Cheng and Mr. Kwok is simply inconceivable. Mr. Kwok is under a duty to put forward arguable points in order to assist the court in handling the case, instead of creating obscurity by making absurd propositions not supported by any decided case. Mr. Kwok should not have even put forward the suggestion that the trial judge should have received evidence of an expert witness in order to assist him in properly interpreting the legislation.", "zh-HK": "法官的職責之一是根據法例的用語、立法原意和目‍的及同類案件的先例等等因素來詮釋法例。鄭和郭大律師指原審法官應取得專家的協助來詮釋法例的說法全無基礎支‍持，亦明顯是錯誤的。本席認為鄭和郭大律師的說法是匪‍夷所思。郭大律師有責任提出可爭拗的論點，以協助法庭處‍理案件，而非提出一些全無案例支持的荒謬說法，混淆視‍聽。郭大律師指原審法官應聽取專家證人的證供，以協助他恰當地詮釋法例的說法根本不應該提出。" } }, { "doc_id": 126, "seg_id": 95, "translation": { "en": "Article 26 of the Basic Law and the Bill of Rights confer on Hong Kong permanent residents the right to vote and the right to stand for elections. However, these rights have to be exercised in accordance with law and subject to such restrictions as are prescribed by law.", "zh-HK": "《基本法》第‍26‍條和《人‍權‍法》賦予香港永久性居民選舉權和被選舉權，但該些權利必須依法行使，亦要受‍到依法規定的限制。" } }, { "doc_id": 126, "seg_id": 96, "translation": { "en": "To ensure that elections are conducted fairly, openly and honestly, the Ordinance prohibits certain corrupt and illegal conduct which affects fair, open and honest elections. The Ordinance aims not only to ensure that candidates properly account for the election donations that they receive, but also to eradicate certain corrupt conduct, including offering an advantage to another person as an inducement for that other person to stand, or not to stand, as a candidate at an election. Another object of the Ordinance is to prevent anyone from obtaining personal gains by standing for elections.", "zh-HK": "為了確保選舉在公平、公開和誠實的情況下進行，《條例》禁止某些影響公平、公開和誠實選舉的舞弊和非法行為。《條例》的宗旨是不單是要求候選人妥善交代收取到的選舉捐贈，亦是要杜絕某些舞弊行為，包括提供利益給另‍一人作為該另一人參選或不參選的誘因。《條例》的另一宗旨是避免任何人以參加選舉而取得私人利益。" } }, { "doc_id": 126, "seg_id": 97, "translation": { "en": "To “offer an advantage to another person as an inducement for the other person to stand, or not to stand, as a candidate at the election” is corrupt conduct prohibited by law as detailed in the Ordinance (section 7(1)(a)(i)).", "zh-HK": "“提供利益予另一人作為該另一人在選舉中參選或不參選的誘因”是《條例》詳細列出法律不容許的舞弊行‍為（第7(1)(a)(i)條）。" } }, { "doc_id": 126, "seg_id": 98, "translation": { "en": "The aforesaid restriction is prescribed by law and is reasonable and proportional. Exercising the right to vote or the right to stand for election by violating the aforesaid restriction is not exercising the right under the Basic Law and the Bill of Rights in accordance with law. A person with limited resources may have other ways to raise funds to enable him/her to stand for an election. It is not correct to say, as Mr. Kwok did, that the inability of a person minded to stand for an election to do so by reason of limited resources will affect his/her right to stand for elections or voters’ right to vote.", "zh-HK": "上述限制是依法規定亦是合理和合比例的，任何違‍反上述限制來行使選舉權或參選權則並非依法行使《基本法》和《人權法》下的權利。資源不足的人可以有其他方法籌集資金令他能參選。郭大律師指資源不足的人想參選卻不‍得其門而入會影響他們的選舉權或選民的投票權的說法並不‍正確。" } }, { "doc_id": 126, "seg_id": 99, "translation": { "en": "There must be a proper basis and various tests must be satisfied in order to suggest that a particular legal provision is unconstitutional. There is nothing to support the contention of Cheng and Mr. Kwok that the Ordinance and the ruling of the trial judge contravene the Basic Law and the Bill of Rights.", "zh-HK": "要指某法律條文違憲，必須要有恰當的基礎及通過多項測試才能提出。鄭和郭大律師指《條例》和原審法官的裁決抵觸《基本法》和《人權法》的說法是沒有理據支持的。" } }, { "doc_id": 126, "seg_id": 100, "translation": { "en": "On a proper interpretation of the Ordinance, the provisions in the Ordinance that certain conduct related to elections constitutes illegal and corrupt conduct do not in any way contravene the Basic Law and the Bill of Rights.", "zh-HK": "只要恰當地詮釋《條例》的意義，《條例》列明某‍些和選舉有關的行為所構成違法的舞弊行為，絕對和《基本法》和《人權法》沒有任何抵觸。" } }, { "doc_id": 126, "seg_id": 101, "translation": { "en": "Exhibits P27, P46 and P47 are records of communications among members of the APS election campaign group, including Ku, Chan and Cheung. The evidence confirmed that some of the communications originated from Cheng. The contents of the communications also tallied with the prosecution’s allegation, showing that Cheng would provide sizeable subsidies to induce APS to send people to stand as candidates at the 2015 Election. Those messages were obviously compiled and sent by the conspirators involved in the present case.", "zh-HK": "證物 P27、P46和P47都是APS競選群組的相互通‍訊紀錄，群組的成員包括顧、陳和張，證據亦確認部分通‍訊內容源自鄭。通訊內容亦和控方的指控脗合，顯示鄭會資助巨額金錢誘使APS派人參加2015年選舉。該些訊息內容明‍顯是涉案的串謀者製作及發出的。" } }, { "doc_id": 126, "seg_id": 102, "translation": { "en": "According to the co-conspirator rule, acts done or statements made by a co-conspirator for the purposes of the conspiracy are admissible against the other co-conspirators and are not subject to the rule against hearsay, the reason being that, for an offence of conspiracy, a co-conspirator’s acts or statements are binding on the other co-conspirators (see R v Au Shui Yuen Alick [1993] 2 HKC 219). Furthermore, documents shown to be records stored in a particular kind of business are of probative value and are admissible in evidence without violating the rule against hearsay (see HKSAR v Or Suen Hong [2001] 2 HKLRD 669).", "zh-HK": "一名串謀者為了有關串謀作出的行為及聲明，根據同謀者規則是可以作為支持其他串謀者的罪證，不受“傳聞證據”的規限，原因是在串謀罪行中，一名串謀者作出的行‍為或聲明對其他串謀者有約束力（見R v Au Shui Yuen Alick [1993] 2 HKC 219案）。再者，某些文件顯示它們是在某類業務中所儲存的紀錄具舉證價值，可以呈堂為證，而不會抵觸傳聞證據規則（見HKSAR v Or Suen Hong [2001] 2 HKLRD 669案）。" } }, { "doc_id": 126, "seg_id": 103, "translation": { "en": "The fact that a document more or less similar to Exhibit P27 was stored in Ku’s own computer can definitely show that he had knowledge of the contents of Exhibit P27.", "zh-HK": "顧本人的電腦內儲存了一份和證物 P27大致相同的文件絕對能顯示他對證物 P27的內容知情。" } }, { "doc_id": 126, "seg_id": 104, "translation": { "en": "The aforesaid evidence is clearly admissible. By treating Exhibits P27, P46 and P47 as merely real evidence which could only be used to support the testimony that Ku accepted Cheng’s subsidy, the trial judge adopted an approach extremely favourable to Ku. In any event, even in the absence of such evidence, according to the trial judge’s findings on the evidence of the prosecution witnesses, the three defendants clearly had an agreement to accept Cheng’s subsidy so that Ku would get Chan to stand as a candidate at the 2015 Election in the constituency designated by Cheng. The evidence given by the prosecution witnesses against the three defendants was all-encompassing and overwhelming. Mr. Kwok’s contention that certain hearsay evidence should not have been adduced does not affect the safety of the conviction.", "zh-HK": "上述證據明顯是可以呈堂為證的證據。原審法官單‍以證物 P27、P46和P47為實物證據，只能用作支持顧接‍受鄭資助的證供已是對顧極為有利的處理方法。無論如何，即‍使沒有該些證據，根據原審法官就各控方證人證言的裁‍決，三‍名被告人明顯有協議接受鄭的資助，以令顧促使陳在鄭指定的選區參選2015年選舉。控方證人針對三名被‍告人的證供是全面及一面倒的。郭大律師指某些傳聞證據不應呈堂的說法不影響定罪的穩妥性。" } }, { "doc_id": 126, "seg_id": 105, "translation": { "en": "In his oral submissions, Mr. Kwok withdrew the complaint he made in his written submissions that it was only under cross-examination that Cheng said he sent Exhibit P46 to Ku. Had the defence considered that they could not foresee what Cheng was going to say and hence had no opportunity to put questions to him before he was cross-examined by the prosecution, they could have applied to the trial judge for leave to inquire of Cheng about the new issue after the prosecution finished cross-examining Cheng.", "zh-HK": "在口頭陳詞時，郭大律師收回在其書面陳述中對鄭是在盤問下才指證物 P46 是他傳送給顧的投訴。如辯方認‍為他們不能預知鄭的說法，故沒有機會在控方盤問他前向他提問，辯方大可以在控方盤問完鄭後向原審法官申請要求獲准就該新出現的議題向鄭查詢。" } }, { "doc_id": 126, "seg_id": 106, "translation": { "en": "Not having made such an application at trial, it is not open to the defence on appeal to complain, or indeed to put forward as a ground of appeal, that they did not have an opportunity to make inquiries of Cheng and hence Ku suffered from procedural unfairness.", "zh-HK": "辯方不能在原審時沒有作出上述申請而在上訴階‍段指因為沒有機會向鄭查詢，故造成程序上對顧不公平，並以此為上訴理由。" } }, { "doc_id": 126, "seg_id": 107, "translation": { "en": "Mr. Kwok argued that Cheng’s evidence was neither part of the prosecution case nor verified when the prosecution proved their case, and therefore the trial judge could not rely on Cheng’s testimony against Ku. If, at the close of the prosecution case, the evidence adduced by the prosecution fell short of establishing a prima facie case on the charges, it was of course open to the defence to make an application for no case to answer. However, where the prosecution had adduced sufficient prima facie evidence for the charges, the evidence given by one defendant who defended in person could, if true, strengthen the prosecution evidence against other defendants who stood the same trial.", "zh-HK": "郭大律師指鄭的證言並非是控方案情的一部分，亦‍沒有在控方證案時證實，因此原審法官不能依賴鄭針對顧的證言。如控方結案時，控方提出的證據不足以構成支持控‍罪的表面證供，則辯方當然可以提出毋須答辯的申請。但‍如控方已提出足夠的表面證據支持控罪，則個別被告人在自辯時提出的證據如屬實是可以強化控方指控其他同時受‍審的被告人的證據。" } }, { "doc_id": 126, "seg_id": 108, "translation": { "en": "The grounds of appeal raised by Mr. Kwok regarding the above issue do not have any backing and are plainly wrong. Such grounds should not have been raised at all. What Mr. Kwok did is a sheer waste of the court’s time.", "zh-HK": "就上述議題，郭大律師提出的上訴理據是沒有基礎支持，亦明顯是錯誤的。該些理據根本不應提出，郭大律師的做法實屬浪費法庭時間。" } }, { "doc_id": 126, "seg_id": 109, "translation": { "en": "The prosecution case was that the three defendants engaged or conspired to engage in “corrupt conduct” prohibited under the Ordinance, namely offered an advantage to another person as an inducement for the other person to stand as a candidate at the election, or conspired to offer an advantage to another person as an inducement for the other person to stand as a candidate at the election.", "zh-HK": "控方指三名被告人作出或串謀作出上述《條例》禁‍止的“舞弊行為”，即提供利益予另一人作為該另一人在選‍舉中參選的誘因或串謀提供利益予另一人作為該另一人在選舉中參選的誘因。" } }, { "doc_id": 126, "seg_id": 110, "translation": { "en": "Mr. Kwok argued that the election donation referred to in the Ordinance could be made before there was a candidate, and as long as the person who received the election subsidy made a proper election expense return after the election, the offering of an advantage as an inducement for another person to stand as a candidate at an election could be regarded as an election donation which was lawful. I disagree. An election donation is a donation made to a candidate at an election. The existence of a candidate is a prerequisite for an election donation.", "zh-HK": "郭大律師指《條例》中所指的選舉捐贈可以在沒有候選人出現前作出，而只要收取選舉資助的人在選舉後作出恰當的選舉開支申報，提供利益誘使他人參選可被視為選舉捐贈亦是合法的。本席不同意郭大律師的立場。選舉捐贈是就選舉的候選人作出的捐贈，前題是必須先有候選人，才能有選舉捐贈。" } }, { "doc_id": 126, "seg_id": 111, "translation": { "en": "In any event, according to the trial judge’s findings of fact, the $150,000 to $200,000 Cheng had agreed to pay and the $36,000 already paid to Ku were by no means election donations but were monetary rewards given to Ku as inducements for Chan to stand as a candidate at the 2015 Election. The trial judge’s finding is backed by sufficient evidence and is correct.", "zh-HK": "無論如何，根據原審法官的事實裁決，鄭同意支付的15至20萬元及已支付給顧的36,000元絕非選舉捐‍贈，而是給予顧的金錢報酬，以作為陳參加2015年選舉的誘‍因。原審法官的裁定有充分證據支持，亦是正確的。" } }, { "doc_id": 126, "seg_id": 112, "translation": { "en": "The Ordinance is targeted at certain acts which are done “corruptly”. The trial judge considered that merely doing an act prohibited by the legislation did not necessarily constitute corrupt conduct. However, if the offender did the relevant acts with the object of doing acts prohibited by the legislation, then those acts were done “corruptly” and were unlawful.", "zh-HK": "《條例》所針對的是“舞弊地”作出某些行為。原‍審法官認為單單作出法例禁止的行為不一定是舞弊行‍為，但如犯案人作出有關行為時，目的是違反法例禁止的行為，該些行為就是“舞弊地”作出，且屬違法。" } }, { "doc_id": 126, "seg_id": 113, "translation": { "en": "The interpretation given by the trial judge is tantamount to saying that “if an offender intentionally did the acts prohibited by the Ordinance, then he did such acts ‘corruptly’ which was unlawful.”", "zh-HK": "原審法官的演繹方法等同“如犯案人故意作出《條‍例》禁止的行為，他就是“舞弊地”作出該些行為，亦屬違法行為”。" } }, { "doc_id": 126, "seg_id": 114, "translation": { "en": "The trial judge and counsel for the defendants cited various decided cases, both local and overseas, in support of their respective interpretations of the word “corruptly”. In my view, in interpreting the same word which appears in different statutes, apart from referring to the literal meaning of the word itself, it is also necessary to consider the objectives which the individual statute is seeking to achieve and the possible effect(s) of the interpretation on the word.", "zh-HK": "原審法官和被告人的代表大律師都有援引多宗案‍例，包括本地和外國的案例，以支持他們就“舞弊地”一‍詞的詮釋。本席認為在不同的條例中，同一用詞的詮釋方‍法除了按用詞本身的字面意義外，亦必須考慮個別條例希‍望達到的目的及詮釋用詞能達到的後果。" } }, { "doc_id": 126, "seg_id": 115, "translation": { "en": "I also consider that the various cases cited by Mr. Choy, especially the judgments of the law courts in Singapore, were decided under the special circumstances of the respective ordinances, but are not applicable to the present case.", "zh-HK": "本席亦認為蔡大律師援引的多宗案例，特別是新‍加‍坡法院的判決都是根據個別條例的特殊情況作出，但在‍本案並不適用。" } }, { "doc_id": 126, "seg_id": 116, "translation": { "en": "Section 3 of the Ordinance states that the objects of the Ordinance are to make sure that elections are conducted fairly, openly and honestly and are free from corrupt or illegal conduct, and “to ensure that candidates properly account for the expenditure of money at elections and the soliciting and receipt of election donations and that they do not exceed the prescribed levels of expenditure”.", "zh-HK": "《條例》第三條列明《條例》的目的是令選舉得以公‍平、公開和誠實地進行而無舞弊或非法行為及“確保候選人妥善交待在選舉中款項的支出及所索取和收取的選舉捐‍贈，並確保候選人的開支不會超過訂明的開支限額”。" } }, { "doc_id": 126, "seg_id": 117, "translation": { "en": "Section 7 of the Ordinance prohibits certain types of conduct which are characterized as “corrupt conduct”, and it is an offence to engage in such “corrupt conduct” (section 6(1)). Such unlawful conduct refers, in general, to offering or accepting an “advantage” as an “inducement” to stand, or not to stand, as a candidate at the election, or to withdraw the candidature, or not to endeavour to promote the election of the candidate.", "zh-HK": "《條例》第‍7‍條禁止某類行為並將該些行為定性為“舞弊行為”，而作出該些“舞弊行為”即屬犯法[第‍6(1)‍條]。該些犯法行為泛指提供或接受“利益”為“誘‍因”參選、不參選、退選或沒有盡力令候選人當選。" } }, { "doc_id": 126, "seg_id": 118, "translation": { "en": "It is an inherent offence, as prescribed by the Ordinance, for a person to offer or accept an “advantage” as an “inducement” to get someone to stand, or not to stand, as a candidate at an election, or to withdraw his/her candidature, or not to endeavour to promote the election of the candidate. Section 2(1) of the Ordinance defines “advantage” to include any valuable consideration, gift, loan, service, etc., but election donation is not included. Section 19 makes specific provisions on the disposal of “election donations” by candidates.", "zh-HK": "任何人提供或接受“利益”為“誘因”令人/去參‍選、不參選、退選或沒有盡力令候選人當選都是《條例》訂明的固有犯罪行為。《條例》第 2(1) 條將“利益”定性為任何有值代價、饋贈、借貸、服務等，但選舉捐贈除外。而‍第‍19‍條對候選人處理“選舉捐贈”有明確的要求。" } }, { "doc_id": 126, "seg_id": 119, "translation": { "en": "The legislative intent of the Ordinance is clear: a candidate is entitled to accept election donations, but such donations can only be used towards election expenses as prescribed in the Ordinance. Where election donations exceed election expenses, the former must be disposed of in accordance with the mechanism set out in section 19 of the Ordinance. In short, a candidate must not have any gains by reason of standing for an election. Section 7(1) of the Ordinance also aims to prohibit candidates from having any personal gains as a result of standing for an election.", "zh-HK": "《條例》的立法原意是明確的，一名候選人有權接‍受選舉捐贈，但該些選舉捐贈只能用作《條例》列明的選‍舉開支。如選舉捐贈的數額超過選舉開支，則必須根據《條例》第19條列明的方法去處置。簡言之，候選人不得因為參‍加選舉而得益。《條例》第 7(1) 條目的亦是禁止候選人因為參選而取得個人得益。" } }, { "doc_id": 126, "seg_id": 120, "translation": { "en": "The Ordinance is expressed to prohibit the act of “offer[ing] an advantage to another person as an inducement for the other person to stand, or not to stand, as a candidate at the election”, such conduct being characterized as “corrupt conduct”.", "zh-HK": "《條例》表明要制止“提供利益給予另一人作為該另一人在選舉中參選或不參選的誘因”，並將該行為定性為“舞弊行為”。" } }, { "doc_id": 126, "seg_id": 121, "translation": { "en": "If a person engaged otherwise than intentionally in the conduct sought to be prohibited by the Ordinance, he/she may of course not have engaged in such conduct “corruptly” within the meaning of the Ordinance.", "zh-HK": "當然，如某人是在非故意的情況下作出《條例》要制止的行為，他可能未符合法例所指的“舞弊地”作出有關行‍為。" } }, { "doc_id": 126, "seg_id": 122, "translation": { "en": "However, where a person intentionally engaged in the conduct prohibited and characterized as “corrupt conduct” by the Ordinance, and such conduct was engaged in for the purpose of obtaining personal gains by standing as a candidate at an election, then such conduct must have been engaged in corruptly.", "zh-HK": "但如某人故意作出《條例》禁止的行為及定性為“舞弊行為”，而作出該些行為是為了以參選而取得個人得‍益，則該些行為必然是舞弊地作出。" } }, { "doc_id": 126, "seg_id": 123, "translation": { "en": "If the court does not adopt the aforesaid interpretation, it will be impossible to enforce the Ordinance effectively, and, worse still, corruption will arise and be encouraged in elections.", "zh-HK": "如法庭不採納上述詮釋方法，則《條例》不可能有‍效‍地執行，更會導致及鼓勵貪污情況在選舉時出現。" } }, { "doc_id": 126, "seg_id": 124, "translation": { "en": "The trial judge held that a defendant should be acquitted if he might not have intentionally engaged in the conduct prohibited by the Ordinance. The trial judge held that to constitute an offence, a defendant had to have the “corrupt intent”, i.e. he/she committed the offence for the purpose of achieving something which was clearly prohibited by the legislation. The interpretation by the trial judge means in effect that the conduct prohibited by the Ordinance has to be engaged in intentionally in order to constitute an offence.", "zh-HK": "原審法官裁定如被告人可能不是故意作出《條例》禁止的行為，法庭應判他無罪。原審法官裁定要構成罪行，被告人須具“舞弊意圖”，即他的犯案目的是為了達到法例明顯禁止的東西。原審法官詮釋的方法等同要構成罪行，被‍告人是故‍意作出《條例》禁止的行為。" } }, { "doc_id": 126, "seg_id": 125, "translation": { "en": "That the Ordinance characterizes the conduct it prohibits as “corrupt conduct” must also be because such “corrupt conduct” goes against the objects of the Ordinance and is in conflict with the fair, open and honest conduct of elections.", "zh-HK": "《條例》將其禁止的行為定性為“舞弊行為”，原‍因亦必然是該些“舞弊行為”違反了條例的目的和公‍平、公開和誠實進行的選舉有抵觸。" } }, { "doc_id": 126, "seg_id": 126, "translation": { "en": "For any person who intentionally engages in the corrupt conduct prohibited by the Ordinance, he/she must be doing so with the purpose/intent of hindering a fair, open and honest election. The “dual intent” referred to by the trial judge originates from the defendants’ engaging intentionally in the corrupt conduct prohibited by the Ordinance. The use of such terms as “corrupt intent” or “dual intent” does not add any extra ingredient to the relevant charges.", "zh-HK": "任何人故意作出《條例》禁止的舞弊行為，其目的/意圖必然是會妨礙一個公平、公開和誠實進行的選舉。原‍審法官所指的“雙重意圖”都是源自被告人故意作出《條例》禁止的舞弊行為，“舞弊意圖”或“雙重意圖”等用詞並沒‍有對有關控罪加添任何額外要素。" } }, { "doc_id": 126, "seg_id": 127, "translation": { "en": "The so-called objective “corrupt element” is the very “corrupt conduct” prohibited by the Ordinance, while the subjective guilty knowledge or corrupt intent is to intentionally engage in “corrupt conduct”. Any person who intentionally engages in “corrupt conduct” must have knowledge that his/her conduct is wrong.", "zh-HK": "所謂客觀的“舞弊元素”就是條例禁止的“舞弊行為”，而主觀的犯罪認知或舞弊意圖就是故意作出“舞弊行為”。任何人故意作出“舞弊行為”亦必然是知悉其作為是錯誤的。" } }, { "doc_id": 126, "seg_id": 128, "translation": { "en": "In interpreting the word “corruptly” as used in the Ordinance, the trial judge relied on cases such as Copper v Slade (1858) 6 HLC 746, R v R E Low [1961] HKLR 13 and HKSAR v Chim Pui Chung (HCMA 955/1999). In my judgment, this approach is correct. In fact, the trial judge’s approach to interpretation was more than favourable to the three defendants.", "zh-HK": "本席認為原審法官詮釋的《條例》所用的“舞‍弊‍地”一詞時，依賴Copper v Slade (1858) 6 HLC 746、R v R E Low [1961] HKLR 13 和HKSAR v Chim Pui Chung (HCMA 955/1999) 等案的處理方法是正確的。事實上，原‍審法官的詮釋方法已是對三名被告人過份有利。" } }, { "doc_id": 126, "seg_id": 129, "translation": { "en": "In my judgment, where a person intentionally engages in conduct prohibited under the “Ordinance”, i.e. conduct characterized by the Ordinance as “corrupt”, and one of the purposes of doing so is for personal gain of a particular individual or organization, then that person is “corruptly” engaging in such conduct, which constitutes an offence prohibited under the Ordinance.", "zh-HK": "本席認定任何人故意作出《條例》所禁止的行為，即《條例》定性為“舞弊”的行為，目的之一是為了某人或某團體的個人得益，他就是“舞弊地”作出該些行為，構成了違反《條例》禁止的罪行。" } }, { "doc_id": 126, "seg_id": 130, "translation": { "en": "The charges involved in the present case are corruptly offering money to other persons to induce them to stand as candidates at the election. Prior to trial, no one claimed that the sums Cheng agreed to pay were election donations. In his testimony, Cheng expressly indicated that he was not subsidizing others to stand for the election but was aiming to approach those of the localist organizations and expose their conspiracies with pan-democratic organizations. At trial, Ku also stressed that the $36,000 he received was consideration for APS assisting Cheng in standing for the election and had nothing to do with Chan’s standing for the election. I find it difficult to understand how Cheng and Ku can, on appeal, try to clear themselves of the convictions by claiming that the sums Cheng agreed to offer were “election donations”.", "zh-HK": "本案涉及的控罪是舞弊地向他人提供金錢，誘使該‍人參選。原審前，沒有人指鄭同意支付的款項是選舉捐‍贈。鄭在作供時明確表示他並非資助他人參選而是為了接‍觸本土組織人士揭發他們和泛民組織的陰謀。原審時，顧亦強調他收取的36,000元是APS協助鄭參選的代價和陳的參‍選無關。本席實難理解鄭和顧如何能在上訴階段以鄭同意提供的金錢是“選舉捐贈”來洗脫罪名。" } }, { "doc_id": 126, "seg_id": 131, "translation": { "en": "According to the Ordinance, an election donation is the money, goods and paid service provided to a candidate, and a candidate:", "zh-HK": "根據《條例》，選舉捐贈是向候選人提供的金錢、貨品及有償服務，而候選人則是：" } }, { "doc_id": 126, "seg_id": 132, "translation": { "en": "“(a)means a person who stands nominated as a candidate at an election; and", "zh-HK": "“(a)指在某項選舉中接受提名為候選人的人；及" } }, { "doc_id": 126, "seg_id": 133, "translation": { "en": "(b)also means a person who, at any time before the close of nominations for an election, has publicly declared an intention to stand as a candidate …”", "zh-HK": "(b)亦指在某項選舉的提名期結束前的任何時‍間曾公開宣布有意……參選的人。”" } }, { "doc_id": 126, "seg_id": 134, "translation": { "en": "On the prosecution evidence, when Cheng proposed to subsidize the localists and organizations involved in the present case, they had not stood nominated as candidates and had never publicly declared an intention to stand as candidates. I have to stress that a candidate is an individual but not an organization. The fact that a particular organization claimed it would send someone to stand for the election is neither here nor there. It is not open to Cheng to claim that the subsidy he proposed was election donation offered to a particular candidate on the ground that a particular organization claimed that it would send someone to stand for the election. Neither the relevant evidence Cheng pointed out nor the new evidence he wishes to put forward is sufficient to prove that any of the prosecution witnesses he was willing to subsidize had stood nominated as candidates or had publicly declared an intention to stand as candidates before the close of nominations. There is no basis to support Cheng’s claim that the subsidies offered by him were election donations. Even though some online media reported that Wong Chun-yeung had indicated he was actively considering standing for the election and such reports constituted a public declaration of an intention to stand for the election, he had not clearly stated that he would stand as a candidate in a particular constituency. Cheng’s act of inducing Wong Chun-yeung to stand as a candidate in the constituency designated by him was sufficient to constitute corrupt conduct within the meaning of the Ordinance.", "zh-HK": "根據控方的證據，鄭提出資助涉案的本土人士及組‍織時，該些人士根本沒有接受提名為候選人，亦從來沒有公開宣布有意參選。本席要強調候選人是個人，而非組織。個別組織表示會派人參選和事件無關。鄭無權以某組織表示會派‍人參選而聲稱他提出的資助是向某候選人提供的選舉捐‍贈。鄭指出的有關證據及希望提出的新證據都不足以證明他願意資助的任何一位控方證人有接受提名為候選人，亦沒‍有在提名期結束前曾公開宣布有意參選。鄭指他提出的資‍助是選舉捐贈是沒有基礎支持的。即使根據某些網媒的報‍導，王進洋曾表示積極考慮參選，而該報導構成公開宣布有意參選，但他並沒有表明在某選區參選。鄭利誘王進洋在他指定的選區參選亦足以構成《條例》所指的舞弊行為。" } }, { "doc_id": 126, "seg_id": 135, "translation": { "en": "Furthermore, as the trial judge correctly pointed out, the amount of subsidy Cheng put forward far exceeded the maximum amount of election expenses for the 2015 Election, and Cheng had even made it clear that the subsidies given by him would be released in cash and that the recipients could spend the money freely. When Ku received the $36,000, neither he nor Chan issued any receipt as required by the statute － further proof that the subsidy from Cheng could not possibly be an election donation. The proposal Cheng put forward was to cause those who accepted his instructions and stand as candidates in designated constituencies to obtain personal gains, the purpose of which was to induce them to stand as candidates in the constituencies he designated in accordance with his instructions, so as to achieve his improper objective.", "zh-HK": "再者，誠如原審法官正確指出，鄭提出的資助金額遠超過2015年選舉的開支上限，而鄭更表明他作出的資助會以現金發放而收款者可以自行運用。顧收取36,000‍元時，他和陳都沒有按法例要求發出收條，亦證明鄭的資助根本不可能是選舉捐贈。鄭提出的建議是令接受他指示去某指定選‍區參選的人能取得個人得益，目的是誘使他們按他的指示在他指定的選‍區參選，以達到他不當的目的。" } }, { "doc_id": 126, "seg_id": 136, "translation": { "en": "The trial judge’s finding that the funds provided by Cheng were by no means election donations but were rewards for inducing others to stand for the election is, in my judgment, absolutely correct.", "zh-HK": "原審法官認定鄭的出資絕非選舉捐贈而是誘使他‍人參選的報酬的裁決絕對正確。" } }, { "doc_id": 126, "seg_id": 137, "translation": { "en": "Cheng fails to show that the new evidence he seeks to adduce is relevant to the present case, still less material to the outcome of the present case. Cheng is also unable to explain why such evidence had not been adduced at trial. Therefore, I have no basis to allow his application and admit the new evidence he seeks to adduce, and his summons for leave to adduce new evidence is dismissed accordingly. I am also of the view that the prosecution’s inadvertent disclosure at trial of certain instructions of Cheng which came from counsel for Cheng has no bearing at all on the safety of the conviction.", "zh-HK": "鄭未能證明他要求提出的新證據和本案有關，更遑‍論會對本案的裁決有舉足輕重的影響。鄭亦不能解釋為何在原審時沒有提出該些證據。因此本席沒有基礎接納他的申‍請及採納他提出的新證據，鄭要求採納新證據的傳訊通知被駁回。本席亦認為在審訊過程中，控方不經意地透露了一‍些源自鄭的大律師關於鄭的指示和有關定罪是否穩妥完‍全無關。" } }, { "doc_id": 126, "seg_id": 138, "translation": { "en": "Mr. Kwok submitted that the trial judge was confused in respect of the allegations of inducements in the charges. This submission is, in my judgment, wholly unfounded. I find that the trial judge was correct in holding that the money Cheng had agreed to pay and/or had paid was by no means an election donation but was a “bribe” to induce others to stand as candidates at the election. It was after Ku and Chan knew that Cheng would subsidize $150,000 to $200,000 that Chan indicated he would stand as a candidate in a designated constituency. Cheng’s promise of subsidy and the $36,000 he subsequently paid were precisely what induced Chan to stand as a candidate at the election.", "zh-HK": "郭大律師指原審法官混淆了控罪中誘因的指控。本‍席認為郭大律師的說法全無基礎支持。本席認定原審法官有正確地裁定鄭同意及/或已支出的金錢絕非選舉捐贈而是誘使他人參選的“賄款”。顧和陳是在知悉鄭會資助15至20‍萬元後，陳才表示會在某指定選區參選。鄭答應會資助及後來支付的36,000‍元正正就是陳參選的誘因。" } }, { "doc_id": 126, "seg_id": 139, "translation": { "en": "On the testimonies of the prosecution witnesses and the trial judge’s findings of fact, the purpose of Cheng’s funding was to induce others to stand as candidates at the election so as to obtain personal gains for themselves, and not to subsidize, by way of election donations, those candidates who had already decided to stand as candidates at the election. The trial judge held that the payment of $36,000 by Cheng to Ku was made for the purpose of inducing Chan to stand as a candidate at the election, not of funding Chan’s election expenses. There was sufficient evidence in support of the trial judge’s ruling. Contrary to what Mr. Kwok said, the trial judge had not been confused about the allegations of inducements as set out in the charges.", "zh-HK": "根據控方證人的證供及原審法官作出的事實裁‍決，鄭出資目的是誘使他人參加選舉令其取得個人得益，而非資助某些已決定參選的候選人的選舉捐贈。原審法官裁‍定鄭支付給顧的36,000元目的是誘使陳參選，而非是資‍助陳的選舉開支。有足夠證據支持原審法官的裁決，原審法‍官並沒有如郭大律師所指，混淆了控罪列出的誘因指控。" } }, { "doc_id": 126, "seg_id": 140, "translation": { "en": "Mr. Choy contended that Chan had all along intended to stand as a candidate at the election, and that his decision to stand for the election had nothing to do with the subsidy Cheng agreed to give him.", "zh-HK": "蔡大律師力稱陳一直都有意參加選舉，而他決定參‍選和鄭同意給予他的資助無關。" } }, { "doc_id": 126, "seg_id": 141, "translation": { "en": "One of the acts of corrupt conduct prohibited under the Ordinance is offering an advantage to another person as an inducement for that other person to stand as a candidate at an election, and that inducement does not have to be the sole inducement for that other person to stand as a candidate at the election. And Chan’s wealthiness also had nothing to do with the incident. The trial judge said the fact that Chan originally intended to stand as a candidate at the election was insignificant, but this does not mean he did not consider that factor. The trial judge was merely pointing out that, on the basis of his findings of fact, the fact that Chan originally intended to stand as a candidate at the election had no bearing on his culpability in the incident.", "zh-HK": "《條例》禁止的舞弊行為之一是提供利益予另一人作為該另一人參選的誘因，該誘因毋須是該另一人參選的唯‍一誘因。陳家境富裕亦和事件無關。原審法官指陳本來也‍想參選並不重要不表示原審法官沒有考慮該因素。原審法‍官只是指出根據他就事實作出的裁決，陳本來也想參選一‍事不影響他在事件中的罪責。" } }, { "doc_id": 126, "seg_id": 142, "translation": { "en": "According to the trial judge’s findings of fact, Cheng directly or indirectly approached individuals including Wong Hok-lai, Tsang Ka-lam, Wong Chun-yeung, Leung Chung-hang Sixtus and Lee Man-ho Leos, and indicated his willingness to subsidize them to stand as candidates or to procure others to stand as candidates at the 2015 Election, with a view to inducing them to stand as candidates or procure others to stand as candidates in the constituencies designated by him. Cheng also conspired with Ku, Chan and Cheung to provide money as an inducement for Ku to get Chan to stand as a candidate in the constituency designated by him, and one of the inducements for Chan to decide to stand as a candidate in a designated constituency was the $200,000 Cheng agreed to pay. I concur with the trial judge’s aforesaid findings of fact which were supported by sufficient evidence. One of the conditions Cheng put forward was to cause the person who stood for the election in accordance with his instruction to obtain personal gains. The above conduct is plainly “corrupt conduct” which the Ordinance is meant to prohibit.", "zh-HK": "根據原審法官的事實裁決，鄭直接或間接接觸黃‍學‍禮、曾家霖、王進洋、梁頌恆和李文浩等人表示願意資‍助他們個人或促使他人參加2015年選舉，目的是誘使他們個‍人或促使另一人在他指定的選區參選。鄭亦串謀顧、陳和張，以提供金錢誘使顧令陳在他指定的選區參選，而陳決定在某指定選區出選的誘因之一是鄭同意支付的20萬元。原‍審法官的上述事實裁決有足夠的證據支持，本席認同。鄭提出的條件之一是令按他指示參選的人取得個人得益。上述行為明顯是《條例》要禁止的“舞弊行為”。" } }, { "doc_id": 126, "seg_id": 143, "translation": { "en": "Having carefully considered the aforesaid grounds of appeal raised by each of the defendants, I am of the view that none of those grounds is made out.", "zh-HK": "本席已有小心考慮各被告人提出的上述理據，本席認為該些上訴理據無一能成立。" } }, { "doc_id": 126, "seg_id": 144, "translation": { "en": "I do not agree that the convictions of Cheng on Charges 1, 2, 4, 6, 9, 11 and 13 and the convictions of Ku and Chan on Charge 13 are unsafe in any respect. I dismiss their respective applications for leave to appeal and the convictions are upheld.", "zh-HK": "對鄭被裁定第‍一、二、四、六、九、十一及十三‍項控罪罪名成立及顧和陳被裁定第十三項控罪罪名成立，本席不同意有任何不穩妥之處。本席駁回他們分別提出的上訴許‍可申請，維持原判的有罪裁決。" } }, { "doc_id": 126, "seg_id": 145, "translation": { "en": "Sentence", "zh-HK": "判刑" } }, { "doc_id": 126, "seg_id": 146, "translation": { "en": "The trial judge cited the cases of Secretary for Justice v Lee York Fai and others, CAAR 3/2011 and Secretary for Justice v Kan Brian Ping Chee [2013] 5 HKLRD 362, and reiterated that bribery at elections was a very serious offence and the courts had to take a serious view of illegal conduct at elections such as corrupt practices in order to maintain the credibility of elections.", "zh-HK": "原審法官援引律政司司長 訴 李躍輝及其他人 CAAR 3/2011和律師司司長 訴 簡炳墀 [2013] 5 HKLRD 362案，並重申賄選是十分嚴重的罪行，而法庭要嚴厲對待選舉舞弊等非法行為以維護選舉公信力。" } }, { "doc_id": 126, "seg_id": 147, "translation": { "en": "The trial judge was of the view that the present case was an extremely serious instance of bribery at an election, and that the defendants had blatantly disregarded the spirit of the electoral system.", "zh-HK": "原審法官認為本案是極為嚴重的賄選案，而被告人公然漠視選舉制度的精神。" } }, { "doc_id": 126, "seg_id": 148, "translation": { "en": "The trial judge considered that Cheng was more culpable than the defendants in Lee York Fai because he did not simply wish to influence a single constituency but intended to interfere with 10-odd constituencies, and the money he could use as bribes was sizeable. However, in respect of Charge 13, the trial judge did not consider the roles and culpabilities of Cheng, Ku and Chan separately.", "zh-HK": "原審法官認為鄭的罪責較李躍輝案被告的罪‍責更‍重，原因是他並非是單單想影響一‍個選區，而是打算干預10‍多個選區，而他可動用的賄款數額亦甚大。但就第‍13‍項控罪，原審法官沒有將鄭和顧及陳扮演的角色和罪責分開處‍理。" } }, { "doc_id": 126, "seg_id": 149, "translation": { "en": "Regarding Charges 1, 2, 4, 6, 9 and 11, as the bribery was unsuccessful, the trial judge adopted 18 months’ imprisonment as the starting point. For Charge 13, as the three defendants had formed an agreement and Cheng had even paid $36,000 as the first instalment, the trial judge adopted 2 years and 6 months as the starting point.", "zh-HK": "就第‍一、二、四、六、九及十一‍項控罪，由於行賄未遂，原審法官以18‍個月為量刑基準。就第‍十三‍項控罪，因為三‍名被告人已達成協議，而鄭更已支付了36,000‍元首‍期，原審法官以2‍年6‍個月為量刑基準。" } }, { "doc_id": 126, "seg_id": 150, "translation": { "en": "The trial judge was of the view that the total term of imprisonment for Cheng should be 4 years, and so he ordered the 18 months for Charges 1, 2, 4, 6, 9 and 11 to run concurrently, but consecutively to the 2 years and 6 months for Charge 13, thereby arriving at a total sentence of 4 years.", "zh-HK": "原審法官認為鄭的總刑期應為4‍年，故判他第‍一、二、四、六、九及十一‍項控罪的18‍個月刑期同期執行，但‍要和第‍13‍項控罪的2‍年6‍個月分期執行，而得出4‍年的總‍刑‍期。" } }, { "doc_id": 126, "seg_id": 151, "translation": { "en": "As for Ku, the trial judge considered that there were no mitigating factors, and therefore sentenced Ku to 2 years and 6 months’ imprisonment for Charge 13.", "zh-HK": "原審法官認為顧沒有任何減刑理由，故就第‍十三‍項控罪判處他入獄2‍年6‍個月。" } }, { "doc_id": 126, "seg_id": 152, "translation": { "en": "As for Chan, given his good character, the trial judge exercised his discretion and reduced the sentence by 2 months, and sentenced Chan to 2 years and 4 months’ imprisonment.", "zh-HK": "原審法官因為陳品格良好而酌情減刑兩個月，而判‍處他入獄2‍年4‍個月。" } }, { "doc_id": 126, "seg_id": 153, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 126, "seg_id": 154, "translation": { "en": "In his written submissions, Mr. Kwok stated that in passing sentence the trial judge focused on the gravity of Cheng’s criminal conduct but failed to separately consider the role played by Ku. Mr. Kwok submitted that, even for conspiracy cases, the personal circumstances of various conspirators and their degree of participation were factors to be considered when passing sentence.", "zh-HK": "在其書面陳述，郭大律師指原審法官在判刑時著重鄭的犯罪行為的嚴重性，但沒有分開考慮顧扮演的角色。他認為即使在串謀案件的判刑時，不同串謀者的個人情況及參‍與程度都是判刑時要考慮的因素。" } }, { "doc_id": 126, "seg_id": 155, "translation": { "en": "Mr. Choy put forward the same ground, placing emphasis on the fact that Chan was only involved in Charge 13 and that charge only concerned one of the seats in one of the District Council constituencies. Mr. Choy also pointed out that the case involved only $150,000 to $200,000, and that Chan only agreed to obtain the inducement and stand for the election, with no evidence that he had actually received any advantage.", "zh-HK": "蔡大律師提出相同的理由，他強調陳只涉及第‍13‍項控罪而控罪只是和一個區議會選區的其中一個席‍位。蔡大律師亦指出案件只涉及15‍至20‍萬元，而陳亦只‍是同意取得誘‍因而參選，但沒有證據顯示他有收取過任何利‍益。" } }, { "doc_id": 126, "seg_id": 156, "translation": { "en": "Both Mr Kwok and Mr Choy submitted that Ku and Chan are far less culpable than the defendants in Lee York Fai, and hence the starting point of 2 years and 6 months is manifestly excessive.", "zh-HK": "郭蔡兩位大律師都認為顧、陳的罪責遠較李躍輝案被告人的罪責為低，因此2‍年6‍個月的量刑基準屬明顯過高。" } }, { "doc_id": 126, "seg_id": 157, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 126, "seg_id": 158, "translation": { "en": "Cheng was convicted on seven charges including Charge 13. His overall culpability is of course greater than that of Ku and Chan. However, in respect of Charge 13 alone, Cheng was offering an advantage and Ku and Chan were receiving the advantage in order to influence the election. I fail to see any difference in the culpabilities of the three of them as co-conspirators.", "zh-HK": "鄭共被裁定7項控罪包括第13項控罪罪名成立。他的整體罪責當然較顧和陳的罪責為高，但單單考慮第‍13‍項控罪，鄭是提供利益而顧和陳是接受利益以影響選‍舉。作為共同串謀者，本席看不到他們三人的罪責有甚麼分別。" } }, { "doc_id": 126, "seg_id": 159, "translation": { "en": "The trial judge pointed out that Cheng was minded to influence not only one constituency but 10-odd constituencies, and the bribe money he could use was as much as $150,000 to $200,000 per candidate. What the trial judge said was only directed at the overall culpability of Cheng and had nothing to do with Ku and Chan.", "zh-HK": "原審法官指鄭並不是單單想影響一個選區，而是10‍多個選區，他可動用的賄款更是每名參選人可得15‍至20‍萬元。原審法官的上述說法只是針對鄭的整體罪責，和顧和陳無關。" } }, { "doc_id": 126, "seg_id": 160, "translation": { "en": "Regarding Charge 13, the trial judge pointed out that the present case involved extremely serious election corruption and that the three defendants blatantly disregarded the spirit of the electoral system. The trial judge had not imposed on Ku and Chan the other charges against Cheng and more serious culpability in relation thereto. It is not correct for Mr. Kwok to say that the trial judge had lumped together the culpabilities of Ku and Chan and of Cheng.", "zh-HK": "就第13項控罪，原審法官指出案件是極為嚴重的賄選案，三名被告人公然漠視選舉制度的精神。原審法官並沒‍有將鄭涉及的其他控罪及其較嚴重的罪責施加在顧和陳的身上。郭大律師強將原審法官分別就鄭和顧及陳的罪責混‍為一談並不正確。" } }, { "doc_id": 126, "seg_id": 161, "translation": { "en": "I reiterate the following principles:", "zh-HK": "本席重申下列原則：" } }, { "doc_id": 126, "seg_id": 162, "translation": { "en": "(1)A clean election is essential for ensuring fair and just elections, is an important foundation for experiencing, practising and developing democracy, and is a prerequisite for maintaining the credibility of elections;", "zh-HK": "(一)廉正的選舉是確保選舉公平公正的要素，亦是體驗、實踐和發展民主的重要基石，更是維護選舉公信力的必須條件；" } }, { "doc_id": 126, "seg_id": 163, "translation": { "en": "(2)The courts must take a serious view of all corrupt and illegal conduct in elections; and", "zh-HK": "(二)法庭須嚴厲對待任何選舉舞弊及非法行‍為；及" } }, { "doc_id": 126, "seg_id": 164, "translation": { "en": "(3)Any person who takes part in election corruption cannot expect a lenient sentence from the court, regardless of that person’s background and social status. The courts must deter the relevant conduct in order to ensure that elections are fair and just and that the credibility of elections is not thrown into doubt.", "zh-HK": "(三)任何參與賄選行為的人士，不論其背景及社會地位，都不會獲得法庭輕判。法庭必須阻嚇有‍關行為，確保選舉公平、公正及其公信力不會遭懷疑。" } }, { "doc_id": 126, "seg_id": 165, "translation": { "en": "However, the trial judge’s view that the gravity of Charge 13 was comparable with the gravity of Lee York Fai is, in my view, open to question.", "zh-HK": "但對原審法官認為第13項控罪的嚴重性能和李躍輝案的嚴‍重性相比，本席認為有值得商榷之處。" } }, { "doc_id": 126, "seg_id": 166, "translation": { "en": "In Lee York Fai, the defendants organized activities such as dinner banquets and day tours, with a view to inducing electors to vote for a particular candidate. The dinner banquets involved almost 600 tables and 6,000 to 7,000 participants; the number of people joining the day tours also approached 3,000. The two activities entailed expenses totalling more than $2,000,000, and the number of electors the defendants sought to induce exceeded half of the number of registered electors.", "zh-HK": "李躍輝案的被告人舉辦晚宴、一日遊等活動，目的是誘使選民投票支持某名候選人，晚宴涉及近600席，人數是6000至7000人；參加一日遊的人數亦近3000人。兩項活‍動的總支出超過200萬元，被告人誘使的選民超過登記選‍民人數的一半。" } }, { "doc_id": 126, "seg_id": 167, "translation": { "en": "Besides, the defendants were found to have engaged in various corrupt and illegal conduct contrary to the election [rules].", "zh-HK": "被告人更是被裁定多項違反選舉的舞弊及非法行‍為。" } }, { "doc_id": 126, "seg_id": 168, "translation": { "en": "Furthermore, Lee York Fai is regarded as the largest ever (in terms of scale) and the most serious of cases of its type.", "zh-HK": "李躍輝案更被視為有史以來在同類案件中規模最‍大的一宗，亦是同類案件最嚴重的一類。" } }, { "doc_id": 126, "seg_id": 169, "translation": { "en": "The main defendants in that case were each sentenced to a total of 33 months’ imprisonment. When passing the above sentence, the Court of Appeal took into account that the defendants had admitted most of the prosecution case at trial and that the sentence was passed upon application for review.", "zh-HK": "該案的主要被告人被判入獄共33個月。在作出上‍述判刑時，上訴法庭已考慮到被告人在原審時承認了大‍部‍分控方案情，和刑期是在覆核申請人時作出的。" } }, { "doc_id": 126, "seg_id": 170, "translation": { "en": "Secretary for Justice v Kan Brian Ping Chee [2013] 5 HKLRD 362 is another case involving election corruption. There the defendant offered $130,000 in cash to one of 46 electors, inducing that elector to vote for him. The Court of Appeal took the view that the appropriate starting point was 18 months’ imprisonment. However, as it was an application for review of sentence, and taking into account other mitigating factors, the Court of Appeal imposed a sentence of 12 months’ imprisonment.", "zh-HK": "Secretary for Justice v Kan Brian Ping Chee [2013] 5 HKLRD 362案亦是一宗涉及賄選的案件。該案的被告人向46名選民中其中一名提供13萬元的現金，誘使該名選民投他一票。上訴法庭認為適當的量刑基準是18個月監禁，但因該案是覆核刑期申請及其他減刑理由而將刑期定為12‍個月。" } }, { "doc_id": 126, "seg_id": 171, "translation": { "en": "In my view, regarding Charge 13, the three defendants were less culpable than the defendants in Lee York Fai. In my judgment, 2 years’ imprisonment adequately reflects the gravity of Charge 13.", "zh-HK": "本席認為就第13項控罪，三名被告人的罪責較李‍躍‍輝案被告人的罪責為輕。本席認為2年監禁已足以反映第‍13‍項控罪的嚴重性。" } }, { "doc_id": 126, "seg_id": 172, "translation": { "en": "Although Cheng had committed seven offences in total, all of them were basically a series of offences of the same type. In my view, the total term of imprisonment of 3 years and 3 months for all the charges against him should be adequate.", "zh-HK": "雖然鄭共干犯了7項控罪，但全部控罪基本上是一‍系列的同類罪行。本席認為針對他全部控罪的總刑期應為3‍年3個月已足夠。" } }, { "doc_id": 126, "seg_id": 173, "translation": { "en": "Therefore, I grant leave to the three defendants to appeal against sentence and treat their applications as the appeal proper.", "zh-HK": "因此，本席批准三名被告人就判刑上訴，並視其申‍請為正式上訴。" } }, { "doc_id": 126, "seg_id": 174, "translation": { "en": "I allow their appeal and substitute the sentences as follows:", "zh-HK": "本席裁定他們上訴得直，並改判如下：" } }, { "doc_id": 126, "seg_id": 175, "translation": { "en": "For Charge 13, Cheng’s sentence is substituted by 24 months’ imprisonment, such sentence to run consecutively to 15 months out of the 18 months’ imprisonment for the remaining charges. Cheng’s total term of imprisonment is reduced from 4 years to 3 years and 3 months; and", "zh-HK": "(一)鄭第13項控罪刑期改為24個月，和其餘控‍罪的18個月刑期中的15個月分期執行。鄭的總刑期由4年減至3年3個月；及" } }, { "doc_id": 126, "seg_id": 176, "translation": { "en": "The sentences of Ku and Chan are reduced, from 2 years and 6 months and 2 years and 4 months respectively, to 2 years.", "zh-HK": "(二)顧和陳的刑期分別由2年6個月及2年4個月減至2年。" } }, { "doc_id": 126, "seg_id": 177, "translation": { "en": "On 17 March 2016, Ku was sentenced to 6 months’ imprisonment in Kwun Tong Magistrates’ Courts for two counts of access to a computer with criminal intent (KTCC 4735/2015). After serving two months of the term, Ku was granted bail pending appeal. On 15 August 2017, Ku’s appeal was dismissed.", "zh-HK": "2016‍年3‍月17‍日，顧因兩‍項有犯罪意圖而取用電‍腦罪在觀塘裁判法院（KTCC 4735/2015案）被判處入獄6‍個月。顧服刑兩個月後獲准保釋等候上訴。2017年8月15日，顧的上訴被駁回。" } }, { "doc_id": 126, "seg_id": 178, "translation": { "en": "When sentence was being passed for the present case on 26 October 2016, Ku was on bail pending appeal in KTCC 4735/2015, and so the trial judge did not deal with the sentence for KTCC 4735/2015.", "zh-HK": "2016‍年10‍月26‍日，在本案判刑時顧就KTCC 4735/2015案保釋等候上訴，因此原審法官沒有處理KTCC 4735/2015案的判刑。" } }, { "doc_id": 126, "seg_id": 179, "translation": { "en": "In the absence of objection by the prosecution, and for the sake of simplicity, I order that the remaining term to be served by Ku for KTCC 4735/2015 as of 26 October 2016 is to run concurrently with the 2-year term in the present case.", "zh-HK": "在控方不反對的情況下及為了簡化事件，本席下令顧因KTCC 4735/2015案在2016‍年10‍月26‍日仍須服的餘‍下刑期和本案的2‍年刑期同期執行。" } }, { "doc_id": 126, "seg_id": 180, "translation": { "en": "Hon Poon JA:", "zh-HK": "高等法院上訴法庭法官潘兆初：" } }, { "doc_id": 126, "seg_id": 181, "translation": { "en": "I agree with the judgment of Yeung VP and the orders made in disposing of this appeal.", "zh-HK": "本席同意楊副庭長的判詞和處置本上訴作出的命‍令。" } }, { "doc_id": 126, "seg_id": 182, "translation": { "en": "The key issue in the present case concerns the correct interpretation of section 7(1)(a), (c) and (g) of the Elections (Corrupt and Illegal Conduct) Ordinance (“the Ordinance”). However, there is no decided case of the Court of Appeal level or above relating to that issue. In view of this, I would like to add a few observations of my own on the issue.", "zh-HK": "如何正確詮釋《選舉（舞弊及非法行為）條例》（《該‍條例》）第7(1)(a)、(c)和(g)條是本案關鍵的議題，之前卻無任何和該議題有關的上訴法庭以上的案例；有見及‍此，本席會就此議題提出一些看法以作補充。" } }, { "doc_id": 126, "seg_id": 183, "translation": { "en": "A.The Ordinance: objectives and scope of application", "zh-HK": "A.《該條例》之目的和適用範圍" } }, { "doc_id": 126, "seg_id": 184, "translation": { "en": "157.When it comes to statutory interpretation, the court will adopt a purposive approach. Put simply, the court will ascertain the meaning of the legislation based on the actual language or wording of the ordinance. At the same time, rather than isolating the provision to be interpreted, the court will globally consider that provision together with other relevant provisions in light of the context and purpose of the entire ordinance. When considering the context and purpose of the ordinance, the court can refer to the official record of the proceedings of the Legislative Council (Hansard) concerning that ordinance.", "zh-HK": "對條例釋義，法庭會採用按目的詮釋方式(purposive approach)。簡言之，法庭會從條例的實際用詞來確定立法的意義，但法庭不會孤立需要詮釋的條文，而是把該條文和其他有關的條文放在整個條例的意境(context)和目的(purpose)中來作整體考慮。在考慮條例的意境和目的時，法庭可以參考有關該條例之立法會會議過程的官方紀錄(Hansard)。" } }, { "doc_id": 126, "seg_id": 185, "translation": { "en": "158.The objectives of the Ordinance are set out in section 3 thereof:", "zh-HK": "《該條例》之目的見第3條：" } }, { "doc_id": 126, "seg_id": 186, "translation": { "en": "“The objects of this Ordinance are –", "zh-HK": "「本條例的目的是" } }, { "doc_id": 126, "seg_id": 187, "translation": { "en": "(a) to ensure that, as far as practicable, elections to elect the Chief Executive and persons to membership of the Legislative Council, District Councils and certain other public bodies and to be Rural Representatives are conducted fairly, openly and honestly and are free from corrupt conduct and illegal conduct; and", "zh-HK": "(a)確保為選出行政長官、立法會議員、區議會議‍員、鄉郊代表及某些其他公共機構的成員而舉行的選舉，在切實可行的範圍內得以公平、公開和誠‍實地進行而無舞弊行為及非法行為；及" } }, { "doc_id": 126, "seg_id": 188, "translation": { "en": "(b) to regulate electoral advertising so as to ensure, as far as practicable, the fairness and honesty of electoral advertising; and", "zh-HK": "(b)規管選舉廣告宣傳，以在切實可行的範圍內，確保選舉廣告宣傳得以公平和誠實地進行；及" } }, { "doc_id": 126, "seg_id": 189, "translation": { "en": "(c) to ensure that candidates properly account for the expenditure of money at elections and the soliciting and receipt of election donations and that they do not exceed the prescribed levels of expenditure.”", "zh-HK": "(c)確保候選人妥善交待在選舉中款項的支出及所索取和收取的選舉捐贈，並確保候選人的開支不‍會超過訂明的開支限額。」" } }, { "doc_id": 126, "seg_id": 190, "translation": { "en": "The Ordinance applies to various kinds of elections including elections to elect the Chief Executive, the members of the Legislative Council, Election Committee, District Council and Heung Yee Kuk, the Chairman or Vice-Chairman or a member of the Executive Committee of a Rural Committee, and a Rural Representative for a rural area: section 4. The Ordinance applies to all conduct concerning an election, whether the conduct is engaged in within Hong Kong or elsewhere: section 5.", "zh-HK": "《該條例》適用於行政長官、立法會、選舉委員會、區議會、鄉議局、鄉事委員會主席、副主席或執行委員會委‍員，和鄉郊地區的鄉郊代表的各種選舉：第4條。《該條‍例》適用於一切與選舉有關的行為，不論該行為是在香港境內或在其他地方作出：第5條。" } }, { "doc_id": 126, "seg_id": 191, "translation": { "en": "In accordance with sections 3 to 5, the Ordinance covers all elections to relevant public offices and regulates all conduct relating to these elections, so as to ensure that, as far as practicable, all elections areconducted fairly, openly and honestly and are free from corrupt conduct and illegal conduct.", "zh-HK": "根據第3條至第5條，《該條例》涵蓋所有相關公‍職的選舉，亦規管所有和這些選舉有關的行為，確保所有選舉在切實可行的範圍內得以公平、公開和誠實地進行而無舞弊行為(corrupt conduct)及非法行為(illegal conduct)。" } }, { "doc_id": 126, "seg_id": 192, "translation": { "en": "B.Corrupt conduct under section 7(1)", "zh-HK": "B.第7(1)條的舞弊行為" } }, { "doc_id": 126, "seg_id": 193, "translation": { "en": "161.Corrupt conduct includes unlawful conduct in the nature of bribery. Relevant to the present case are section 7(1)(a), (c) and (g):", "zh-HK": "161.舞弊行為包括帶賄賂性質的違法行為。與本案有‍關的是第7(1)(a)、(c)及(g)條：" } }, { "doc_id": 126, "seg_id": 194, "translation": { "en": "“(1)A person engages in corrupt conduct at an election if the person corruptly –", "zh-HK": "「(1)任何人舞弊地作出以下作為，即屬在選舉中作出舞弊行為 ——" } }, { "doc_id": 126, "seg_id": 195, "translation": { "en": "(a)offers an advantage to another person as an inducement for the other person –", "zh-HK": "(a)提供利益予另一人" } }, { "doc_id": 126, "seg_id": 196, "translation": { "en": "(i)to stand, or not to stand, as a candidate at the election; or", "zh-HK": "(i)作為該另一人在選舉中參選或不參選的誘因；" } }, { "doc_id": 126, "seg_id": 197, "translation": { "en": "(ii)if the other person has been nominated as a candidate at the election, to withdraw the nomination; or", "zh-HK": "(ii)（如該另一人已在選舉中獲提名為候選人）作‍為該另一人撤回接受提名的誘因；或" } }, { "doc_id": 126, "seg_id": 198, "translation": { "en": "(iii)if the other person has been nominated as a candidate at the election, not to use the other person’s best endeavours to promote the election of the other person; or", "zh-HK": "(iii)（如該另一人已在選舉中獲提名為候選人）作‍為該另一人不盡最大努力促使該另一人當選的誘‍因；或" } }, { "doc_id": 126, "seg_id": 199, "translation": { "en": "…", "zh-HK": "…" } }, { "doc_id": 126, "seg_id": 200, "translation": { "en": "(c)offers an advantage to another person as an inducement for the other person to get, or try to get, a third person –", "zh-HK": "(c)提供利益予另一人" } }, { "doc_id": 126, "seg_id": 201, "translation": { "en": "(i)to stand, or not to stand, as a candidate at the election; or", "zh-HK": "(i)作為該另一人令第三者或試圖令第三者在選‍舉中參選或不參選的誘因；或" } }, { "doc_id": 126, "seg_id": 202, "translation": { "en": "(ii)if the third person has been nominated as a candidate at the election, to withdraw the nomination; or", "zh-HK": "(ii)（如該第三者已在選舉中獲提名為候選人）作‍為該另一人令該第三者或試圖令該第三者撤回接‍受提名的誘因；或" } }, { "doc_id": 126, "seg_id": 203, "translation": { "en": "(iii)if the third person has been nominated as a candidate at the election, not to use the third person’s best endeavours to promote the election of the third person; or", "zh-HK": "(iii)（如該第三者已在選舉中獲提名為候選人）作‍為該另一人令該第三者或試圖令該第三者不盡最‍大努力促使該第三者當選的誘因；或" } }, { "doc_id": 126, "seg_id": 204, "translation": { "en": "…", "zh-HK": "…" } }, { "doc_id": 126, "seg_id": 205, "translation": { "en": "(g)solicits or accepts an advantage as an inducement to get, or try to get, another person –", "zh-HK": "(g)索取或接受利益" } }, { "doc_id": 126, "seg_id": 206, "translation": { "en": "(i)to stand, or not to stand, as a candidate at the election; or", "zh-HK": "(i)作為令另一人或試圖令另一人在選舉中參選或不參選的誘因；或" } }, { "doc_id": 126, "seg_id": 207, "translation": { "en": "(ii)if the other person has been nominated as a candidate at the election, to withdraw the nomination; or", "zh-HK": "(ii)（如該另一人已在選舉中獲提名為候選人）作‍為令該另一人或試圖令該另一人撤回接受提名的誘因；或" } }, { "doc_id": 126, "seg_id": 208, "translation": { "en": "(iii)if the other person has been nominated as a candidate at the election, not to use the other person’s best endeavours to promote the election of the other person; or", "zh-HK": "(iii)（如該另一人已在選舉中獲提名為候選人）作‍為令該另一人或試圖令該另一人不盡最大努力促使該另一人當選的誘因；或" } }, { "doc_id": 126, "seg_id": 209, "translation": { "en": "…”", "zh-HK": "…」" } }, { "doc_id": 126, "seg_id": 210, "translation": { "en": "162.Section 7(1)(a) and (c) relates to Party A offering an advantage to Party B as an inducement for Party B or Party C to do certain acts, with Party A as the offender. Section 7(1)(g) relates to Party B soliciting or accepting an advantage as an inducement for Party C to do certain acts, with Party B as the offender.", "zh-HK": "162.第7(1)(a)和(c)條是甲方提供利益予乙方作為乙方或丙方行為的誘因，犯罪者是甲方。第7(1)(g)條是乙方索‍取或接受利益作為丙方行為的誘因，犯罪者是乙方。" } }, { "doc_id": 126, "seg_id": 211, "translation": { "en": "C.Actus reus", "zh-HK": "C.罪行行為 (actus reus)" } }, { "doc_id": 126, "seg_id": 212, "translation": { "en": "163.The corrupt conduct under section 7(1)(a) and (c) shares a common feature, namely the offering of an advantage as an inducement, whereas the corrupt conduct under section 7(1)(g) is soliciting or accepting an advantage as an inducement. This shows that both advantage and inducement are crucial elements of the actus reus of the relevant offences. This part will deal with advantage and part C2 will deal with inducement. Another element of the actus reus involves the three circumstances referred to in sub-paragraphs (i) to (iii) of section 7(1)(a), (c) and (g), and this will be dealt with in part C3.", "zh-HK": "163.第7(1)(a)和(c)條舞弊行為的共通點在於提供利益作為誘因，第7(1)(g)條則是索取或接受利益作為誘因，可‍見利益和誘因兩者都是有關控罪之犯罪罪行(actus reus)的重‍要元素。本部會討論利益，C2部會討論誘因。另外一個犯罪罪行元素涉及第7(1)(a)、(c)及(g)條第(i)至(iii)節提到的三種情況，這會在C3部討論。" } }, { "doc_id": 126, "seg_id": 213, "translation": { "en": "C1.Advantage", "zh-HK": "C1.利益(advantage)" } }, { "doc_id": 126, "seg_id": 214, "translation": { "en": "164.Section 2 of the Ordinance provides a statutory definition of “advantage”:", "zh-HK": "164.何謂利益，《該條例》第2條有法定的定義：" } }, { "doc_id": 126, "seg_id": 215, "translation": { "en": "“advantage (利益) means –", "zh-HK": "「利益 (advantage) 指" } }, { "doc_id": 126, "seg_id": 216, "translation": { "en": "(a) any valuable consideration, gift or loan; or", "zh-HK": "(a)任何有值代價、饋贈或借貸；或" } }, { "doc_id": 126, "seg_id": 217, "translation": { "en": "(b) any office, employment or contract; or", "zh-HK": "(b)任何職位、受僱工作或合約；或" } }, { "doc_id": 126, "seg_id": 218, "translation": { "en": "(c) the full or partial payment, release, discharge or liquidation of an obligation; or", "zh-HK": "(c)支付、免卻、解除或了結全部或部分義務；或" } }, { "doc_id": 126, "seg_id": 219, "translation": { "en": "(d) the exercise of or forbearance from exercising a right or power; or", "zh-HK": "(d)行使或不行使權利或權力；或" } }, { "doc_id": 126, "seg_id": 220, "translation": { "en": "(e) the performance of or forbearance from performing a duty; or", "zh-HK": "(e)履行或不履行職責；或" } }, { "doc_id": 126, "seg_id": 221, "translation": { "en": "(f) any favour, including –", "zh-HK": "(f)任何優待，包括" } }, { "doc_id": 126, "seg_id": 222, "translation": { "en": "(i) giving protection from a liability incurred or anticipated; and", "zh-HK": "(i)予以維護使免受已招致或預期招致的法律責任；及" } }, { "doc_id": 126, "seg_id": 223, "translation": { "en": "(ii) giving protection from proceedings or possible proceedings of a disciplinary, civil or criminal nature; or", "zh-HK": "(ii)予以維護使免遭已採取或可能採取的紀律、民事或刑‍事法律程序起訴；或" } }, { "doc_id": 126, "seg_id": 224, "translation": { "en": "(g) any other service (other than voluntary service or the provision of entertainment),but does not include an election donation if particulars of the donation are given in an election return that has been lodged with the appropriate authority;”", "zh-HK": "(g)任何其他服務（義務服務及提供娛樂除外），但如某項選舉捐贈的詳情已在提交有關主管當局的選舉申報書內提供，則利益一詞並不包括該項選舉捐贈；」" } }, { "doc_id": 126, "seg_id": 225, "translation": { "en": "165.The statutory definition of “advantage” is very broad, encompassing virtually all kinds of benefits, but does not cover an election donation provided that the particulars thereof are given in an election return that has been lodged with the appropriate authority. In the context of section 7(1), the statutory definition of “advantage” aims to prohibit anyone from obtaining personal gains out of an election.", "zh-HK": "165.利益的法定定義十分廣泛，幾乎包括所有的益處，但不包括選舉捐贈，條件是該項選舉捐贈的詳情已在向有關主管當局提交的選舉申報書內提供。利益這法定定義，放在第7(1)條的意境內，其目的是禁止有人從選舉中得到個人私利 (personal gain)。" } }, { "doc_id": 126, "seg_id": 226, "translation": { "en": "166.All elections inevitably involve funding and expenses. Unless the candidates have sufficient financial means to meet election funding and expenses by themselves, they will usually accept monetary donations, donations of goods or voluntary services. Even if a candidate has sufficient financial means to meet election funding and expenses, he/she may still accept monetary donations, donations of goods or voluntary services as part of his election campaign, so as to attract the support of the general public or electors or prove that he/she has such support, in order to generate influence for his/her campaign and increase his/her chance of winning the election. To this end, the Ordinance permits the offering of election donations to candidates as well as the acceptance of election donations by candidates, so that they can meet election funding and expenses.", "zh-HK": "166.任何選舉無可避免需要經費和開支。除非候選人有足夠的經濟實力可以自行支付選舉經費和開支，否則他們通‍常都會接受金錢的捐贈、物資的捐贈或義務服務。即使某候選人有足夠的經濟實力支付選舉經費和開支，他仍可能會接受金錢的捐贈、物資的捐贈或義務服務，作為其選舉工程的部份，以吸引或證明自己得到大眾或選民的支持，為其選‍舉造勢以增加當選的機會。為此，《該條例》容許人們向候選人提供選舉捐贈，亦同時容許候選人接受選舉捐贈，以應付其選舉經費和開支。" } }, { "doc_id": 126, "seg_id": 227, "translation": { "en": "167.At the same time, since monetary donations, donations of goods or voluntary services are actual benefits given to candidates or those standing as candidates, the Ordinance also imposes various restrictions on the offering and acceptance of election donations, in order to achieve the statutory object of ensuring that, as far as practicable, elections are conducted fairly, openly and honestly.", "zh-HK": "167.同時，因為金錢的捐贈、物資的捐贈或義務服務都是給予候選人或參選人的實際益處，為要達到《該條例》的目的，即確保選舉在切實可行的範圍內得以公平、公開和誠‍實地進行，《該條例》也對提供和接受選舉捐贈有多方的約‍制。" } }, { "doc_id": 126, "seg_id": 228, "translation": { "en": "168.The statutory definition of “election donation” is:", "zh-HK": "168.選舉捐贈的法定定義是：" } }, { "doc_id": 126, "seg_id": 229, "translation": { "en": "“election donation (選舉捐贈), in relation to a candidate or candidates at an election, means any of the following donations –", "zh-HK": "「選舉捐贈 (election donation) 就某項選舉的一名或多於一名候選人而言，指以下任何捐贈" } }, { "doc_id": 126, "seg_id": 230, "translation": { "en": "(a) any money given to or in respect of the candidate or candidates for the purpose of meeting, or contributing towards meeting, the election expenses of the candidate or candidates;", "zh-HK": "(a)為償付或分擔償付該候選人或該等候選人的選舉開支，而給‍予該候選人或該等候選人或就該候選人或該等候選人而給予的任‍何金錢；或" } }, { "doc_id": 126, "seg_id": 231, "translation": { "en": "(b) any goods given to or in respect of the candidate or candidates for the purpose of promoting the election of the candidate or candidates or of prejudicing the election of another candidate or other candidates, and includes any goods given incidental to the provision of voluntary service;", "zh-HK": "(b)為促使該候選人或該等候選人當選或阻礙另一名候選人或另一些候選人當選，而給予該候選人或該等候選人或就該候選人或該等候選人而給予的任何貨品，包括由於提供義務服務而附帶給予的貨品；" } }, { "doc_id": 126, "seg_id": 232, "translation": { "en": "(c) any service provided to or in respect of the candidate or candidates for the purpose of promoting the election of the candidate or candidates or of prejudicing the election of another candidate or other candidates, but does not include voluntary service;”", "zh-HK": "(c)為促使該候選人或該等候選人當選或阻礙另一名候選人或另一些候選人當選，而向該候選人或該等候選人提供或就該候選人或該等候選人而提供的任何服務，但不包括義務服務；」" } }, { "doc_id": 126, "seg_id": 233, "translation": { "en": "169.Item (a) of election donation relates to meeting or contributing towards meeting election expenses, and the statutory definition of “election expenses” is:", "zh-HK": "169.選舉捐贈的(a)項是償付或分擔償付選舉開支，而選舉開支的法定定義是：" } }, { "doc_id": 126, "seg_id": 234, "translation": { "en": "“election expenses (選舉開支), in relation to a candidate or group of candidates at an election, means expenses incurred or to be incurred, before, during or after the election period, by or on behalf of the candidate or group for the purpose of –", "zh-HK": "「選舉開支 (election expenses) 就某項選舉的候選人或候選人組合而言，指在選舉期間前、在選舉期間內或在選舉期間後，由該候選人或該候選人組合或由他人代該候選人或該候選人組合" } }, { "doc_id": 126, "seg_id": 235, "translation": { "en": "(a) promoting the election of the candidate or group; or", "zh-HK": "(a)為促使該候選人或該候選人組合當選；或" } }, { "doc_id": 126, "seg_id": 236, "translation": { "en": "(b) prejudicing the election of another candidate or group,", "zh-HK": "(b)為阻礙另一候選人或另一候選人組合當選，" } }, { "doc_id": 126, "seg_id": 237, "translation": { "en": "and includes the value of election donations consisting of goods and services used for that purpose;”", "zh-HK": "而招致或將招致的開支，包括包含貨品及服務而用於上述用途的選‍舉捐贈的價值；」" } }, { "doc_id": 126, "seg_id": 238, "translation": { "en": "170.Section 18 of the Ordinance contains stringent provisions governing the use of election expenses:", "zh-HK": "170.《該條例》第18條對如何使用選舉開支有嚴格的規定：" } }, { "doc_id": 126, "seg_id": 239, "translation": { "en": "“A candidate or other person who uses election donations for a purpose –", "zh-HK": "「任何候選人或其他人" } }, { "doc_id": 126, "seg_id": 240, "translation": { "en": "(a) other than that of meeting, or contributing towards meeting, the election expenses of the candidate; or", "zh-HK": "(a)將選舉捐贈用於償付或分擔償付該候選人的選舉開支以外的用途；或" } }, { "doc_id": 126, "seg_id": 241, "translation": { "en": "(b) in the case of an election donation consisting of goods or a service, other than that of promoting the election of the candidate or that of prejudicing the election of another candidate or other candidates,", "zh-HK": "(b)（如某項選舉捐贈包含貨品或服務）將該項捐贈用於促使該候選人當選或阻礙另一名候選人或另一些候選人當選以外的用途，" } }, { "doc_id": 126, "seg_id": 242, "translation": { "en": "engages in corrupt conduct at an election.”", "zh-HK": "即屬在選舉中作出舞弊行為。」" } }, { "doc_id": 126, "seg_id": 243, "translation": { "en": "In other words, an election donation can only be used for the purpose of the election campaign of the candidate who accepts that donation, and any other use will constitute corrupt conduct.", "zh-HK": "換句話說，選舉捐贈只可以用於接受該項捐贈之候選人自己的選舉工程，用於任何其他的用途都是舞弊行為。" } }, { "doc_id": 126, "seg_id": 244, "translation": { "en": "171.The Ordinance also imposes stringent requirements on how candidates dispose of election donations. Section 19 provides as follows:", "zh-HK": "171.《該條例》對候選人如何處置選舉捐贈也有嚴格的規範。第19條訂明：" } }, { "doc_id": 126, "seg_id": 245, "translation": { "en": "“(1) A candidate or candidates must, on receiving an election donation of more than $1,000 or, in the case of an election donation consisting of goods or a service, of more than $1,000 in value, issue to the donor a receipt for the donation. The receipt must specify the name and address of the donor as supplied by the donor.", "zh-HK": "「(1)如某候選人收取或某些候選人共同收取的某項選舉捐贈為$1,000以上或（如該項選舉捐贈包含貨品或服務）價值$1,000以‍上，則該候選人或該等候選人必須就該項捐贈向捐贈者發出收‍據。該收據必須載明捐贈者提供的捐贈者的姓名或名稱及地址。" } }, { "doc_id": 126, "seg_id": 246, "translation": { "en": "(2) If an election donation of more than $1,000 or, in the case of an election donation consisting of goods, of more than $1,000 in value, is given to or for a candidate or candidates and the candidate or candidates do not know the name and address of the donor, the candidate or candidates must ensure that the donation –", "zh-HK": "(2)如給予某候選人或某些候選人或就某候選人或某些候選人而給予的某項選舉捐贈為$1,000以上或（如該項選舉捐贈包含貨‍品）價值$1,000以上，而該候選人或該等候選人不知道捐贈者的姓‍名或名稱及地址，則該候選人或該等候選人必須確保" } }, { "doc_id": 126, "seg_id": 247, "translation": { "en": "(a) is not used –", "zh-HK": "(a)該項捐贈不會用於" } }, { "doc_id": 126, "seg_id": 248, "translation": { "en": "(i) for the purpose of meeting, or contributing towards meeting, the election expenses of the candidate or any of the candidates; or", "zh-HK": "(i)償付或分擔償付該候選人或任何該等候選人的選舉開支；或" } }, { "doc_id": 126, "seg_id": 249, "translation": { "en": "(ii) in the case of an election donation consisting of goods, for the purpose of promoting the election of the candidate or any of the candidates or of prejudicing the election of another candidate or other candidates; and", "zh-HK": "(ii)（如該項捐贈包含貨品）促使該候選人或任何該等候選人當選或阻礙另一名候選人或另一些候選人當選；及" } }, { "doc_id": 126, "seg_id": 250, "translation": { "en": "(b) is given to a charitable institution or trust of a public character chosen by the candidate or candidates.", "zh-HK": "(b)將該項捐贈予該候選人或該等候選人所選擇的屬公‍共性質的慈善機構或慈善信託。" } }, { "doc_id": 126, "seg_id": 251, "translation": { "en": "(3) If an election donation of money or goods has been given to or for a candidate or candidates and the donation –", "zh-HK": "(3)如給予某候選人或某些候選人或就某候選人或某些候選人而給予的某項選舉捐贈屬金錢或貨品，而該項捐贈" } }, { "doc_id": 126, "seg_id": 252, "translation": { "en": "(a) has not been used –", "zh-HK": "(a)沒有用於" } }, { "doc_id": 126, "seg_id": 253, "translation": { "en": "(i) for the purpose of meeting, or contributing towards meeting, the election expenses of the candidate or candidates; or", "zh-HK": "(i)償付或分擔償付該候選人或該等候選人的選‍舉開支；或" } }, { "doc_id": 126, "seg_id": 254, "translation": { "en": "(ii) in the case of an election donation consisting of goods, for the purpose of promoting the election of the candidate or candidates or of prejudicing the election of another candidate or other candidates; or", "zh-HK": "(ii)（如該項捐贈包含貨品）促使該候選人或該等候選人當選或阻礙另一名候選人或另一些候選人當‍選；或" } }, { "doc_id": 126, "seg_id": 255, "translation": { "en": "(b) is not used in the case referred to in subsection (2),", "zh-HK": "(b)在第(2)款所提述的情況下不會用於該款(a)(i)或(ii)段所述用途，" } }, { "doc_id": 126, "seg_id": 256, "translation": { "en": "the candidate or candidates must ensure that the donation is given to a charitable institution or trust of a public character chosen by the candidate or candidates.", "zh-HK": "則該候選人或該等候選人必須確保將該項捐贈給予該候選人或該等候選人所選擇的屬公共性質的慈善機構或慈善信‍託。" } }, { "doc_id": 126, "seg_id": 257, "translation": { "en": "(4) If the aggregate of all election donations given to or for a particular candidate or a particular group of candidates exceeds the maximum amount prescribed under section 45, the candidate or the candidates belonging to the group must ensure that the excess (not including election donations of services) is given to a charitable institution or trust of a public character chosen by the candidate or those candidates.", "zh-HK": "(4)如給予某候選人或某候選人組合或就某候選人或某候選人組‍合而給予的所有選舉捐贈的總額超過根據第45條訂明的最高限‍額，則該候選人或該組合中的候選人必須確保將超額部分（不包‍括屬服務性質的選舉捐贈）給予該候選人或該等候選人所選擇的屬公‍共性質的慈善機構或慈善信託。" } }, { "doc_id": 126, "seg_id": 258, "translation": { "en": "(5) If an election donation is received by a candidate or candidates, the candidate or each of the candidates engages in corrupt conduct at an election if –", "zh-HK": "(5)凡某候選人收取或某些候選人共同收取選舉捐贈，如" } }, { "doc_id": 126, "seg_id": 259, "translation": { "en": "(a) the candidate or candidates fail to comply with subsection (1) or (2); or", "zh-HK": "(a)該候選人或該等候選人沒有遵從第(1)或(2)款；或" } }, { "doc_id": 126, "seg_id": 260, "translation": { "en": "(b)the candidate or candidates fail to comply with any other requirement of this section before the time when the candidate’s or each candidate’s election return for the election is lodged in accordance with section 37.", "zh-HK": "(b)該候選人在按照第37條提交選舉申報書之前，或該等候選人在每名該等候選人按照第37條提交選舉申報書之‍前，沒有遵從本條的其他規定，則該候選人或每名該等候選人即屬在選舉中作出舞弊行為。" } }, { "doc_id": 126, "seg_id": 261, "translation": { "en": "(6) In this section, charitable institution or trust of a public character (屬公共性質的慈善機構或慈善信託) means a charitable institution or trust of a public character that is exempt from tax under section 88 of the Inland Revenue Ordinance (Cap. 112).”", "zh-HK": "(6)在本條中，屬公共性質的慈善機構或慈善信託 (charitable institution or trust of a public character) 指根據《稅務條例》（第112章）第88條獲豁免繳稅的屬公共性質的慈善機構或慈善信託。」" } }, { "doc_id": 126, "seg_id": 262, "translation": { "en": "172.Simply put, as far as the acceptance and disposal of election donations are concerned, section 19 provides that:", "zh-HK": "172.簡言之，在接受和處置選舉捐贈的事宜上，第19條規定：" } }, { "doc_id": 126, "seg_id": 263, "translation": { "en": "(1)If an election donation is less than $1,000, the donor can be named or anonymous and the candidate does not have to issue a receipt to the donor.", "zh-HK": "若某項選舉捐贈是少於$1,000，捐贈者可以具名或匿名，候選人都不需向捐贈者發出收據。" } }, { "doc_id": 126, "seg_id": 264, "translation": { "en": "(2)If an election donation amounts to $1,000 or above, the donor must be named and the candidate must issue to the donor a receipt as specified in sub-section (1).", "zh-HK": "若某項選舉捐贈是$1,000或以上，捐贈者必須具‍名，而候選人亦必須向該捐贈者發出第(1)款的收‍據。" } }, { "doc_id": 126, "seg_id": 265, "translation": { "en": "(3)If an election donation amounts to $1,000 or above and the donor is anonymous, the donation must not be used for the purpose of the candidate’s election campaign and can only be given to a charitable institution or trust of a public character chosen by the candidate pursuant to sub-section (2).", "zh-HK": "若某項選舉捐贈是$1,000或以上，而捐贈者是匿‍名，則候選人不能把該項捐贈用於其選舉工程，而只可以依第(2)款將它給予他所選擇屬公共性質的慈善機構或慈善信託。" } }, { "doc_id": 126, "seg_id": 266, "translation": { "en": "(4)For any election donation which has not been used for the purpose of his election campaign, the candidate must ensure that it is given to a charitable institution or trust of a public character pursuant to sub-section (3). If the aggregate of all election donations received exceeds the statutory maximum, the candidate must ensure that the excess is given to a charitable institution or trust of a public character chosen by him pursuant to sub-section (4) ‍. In a nutshell, the candidate must not obtain or receive any personal gain out of the election donations.", "zh-HK": "任何沒有用於其選舉工程的選舉捐贈，候選人必須依第(3)款確保將它給予屬公共性質的慈善機構或慈善信託。如收到的選舉捐贈總額超過法定的最高限額，則該候選人必須依第(4)款確保將超額部分給予他所選擇屬公共性質的慈善機構或慈善信託‍。一言以蔽之，候選人不能從選舉捐贈中獲取或得到任何個人的私利。" } }, { "doc_id": 126, "seg_id": 267, "translation": { "en": "173.Section 37(1) of the Ordinance also provides that upon the conclusion of the election, the candidate must, before the expiry of a prescribed period, lodge with the appropriate authority an election return setting out the candidate’s election expenses at the election and all election donations received by or on behalf of the candidate in connection with the election. Section 37(2) provides that the candidate must ensure that the return is accompanied by such documents as are required under that provision. A candidate engages in corrupt conduct if he/she lodges a false or misleading election return: section 20. A candidate who fails to lodge an election return as required by section 37 commits an offence: section 38.", "zh-HK": "173.《該條例》第37(1)條亦規定候選人在選舉完畢後，在法定的限期前，向有關主管當局提交選舉申報書，列‍出該候選人在該項選舉中的選舉開支；及曾由該候選人或由他‍人代該候選人在與該項選舉有關連的情況下收取的所有選舉捐贈。第37(2)條訂明候選人必須確保申報書附有該條‍文要求的文件。如任何候選人提交虛假或具誤導性的選舉申報書都是舞弊行為：第20條。如候選人沒有按照第37條的規定提交申報書，即屬犯法：第38條。" } }, { "doc_id": 126, "seg_id": 268, "translation": { "en": "174.Viewing as a whole the aforesaid provisions regarding the offering and acceptance of election donations, the legislative intent is in line with the objects as stated in section 3, namely to ensure that, as far as practicable, elections are conducted fairly, openly and honestly:", "zh-HK": "174.綜合以上有關提供和接受選舉捐贈的條文，其立法用意和第3條的目的相符，都是為了確保選舉在切實可行的範圍內得以公平、公開和誠實地進行：" } }, { "doc_id": 126, "seg_id": 269, "translation": { "en": "(1)All candidates are subject to the same maximum amount in respect of election expenses; therefore, from the perspective of election expenses, all candidates are on a level playing field at the election. Even if a candidate has an edge over others in terms of means or financial resources, he/she cannot increase election expenses so as to put those with more limited means or financial resources at a disadvantage.", "zh-HK": "每名候選人都受同樣最高的選舉開支限額所限‍制；是故，從選舉開支的角度來考慮，每名候選人都是在同一的公平競爭環境 (level playing field) 進行選舉。某候選人即使有財力或經濟資源的優勢，也不能加大其選舉開支，而令其他財力或經濟資源較弱的對手吃虧。" } }, { "doc_id": 126, "seg_id": 270, "translation": { "en": "(2)Every election donation is constrained by relevant provisions, so as to ensure that (a) the offering, acceptance and disposal of election donations are monitored in an open and transparent manner; (b) election donations are only used for the purpose of election expenses and will not be put to any other use; (c) all election donations that exceed the prescribed maximum cannot be retained by the candidate and must be given to a charitable institution or trust of a public character; (d) the candidate must, in accordance with section 37, give a clear account in the election return of such matters as the election donations received, their disposal and election expenses.", "zh-HK": "每項選舉捐贈都受到相關條文的約束，以確保(a)選舉捐贈的提供、接受和處置都是受到公開透明的監察；(b)選舉捐贈只會用於選舉開支的用途，而不會用於其他用途；(c)所有超過法定最高限額的選舉捐贈，候選人都不能保留，必須給予屬公共性‍質的慈善機構或慈善信託；(d)候選人必須按‍照第37條在申報書內清楚交代收到的選舉捐‍贈、其處置和選舉開支等事宜。" } }, { "doc_id": 126, "seg_id": 271, "translation": { "en": "(3)No candidate may obtain or receive any personal gain as a result of his/her standing as a candidate. This serves to ensure that the election is conducted honestly.", "zh-HK": "每名候選人不能從參選獲取或得到個人私利，這確‍保選舉是誠實地進行。" } }, { "doc_id": 126, "seg_id": 272, "translation": { "en": "175.As this is the legislative purpose of the Ordinance vis-à-vis election donations, the statutory definition of “advantage” encompasses virtually all sorts of benefits, but at the same time does not include election donations properly declared in accordance with the law, the purpose being to prohibit candidates from obtaining any personal gain out of the election. In the context of section 7(1), its purpose is to prohibit anyone at the election from obtaining any personal gain out of the election.", "zh-HK": "175.因為這是《該條例》對選舉捐贈的立法目的，所以利益的法定定義一面包羅幾乎所有的益處，但同時不包括經‍過依法申報的選舉捐贈，其目的是禁止候選人從選舉得到任何個人私利；放在第7(1)條的意境內，其目的是要禁止在選舉中有人從選舉得到個人私利。" } }, { "doc_id": 126, "seg_id": 273, "translation": { "en": "C2. Offer, solicit or accept an advantage as inducement", "zh-HK": "C2.提供、索取或接受利益作為誘因(offer, solicit or accept an advantage as inducement)" } }, { "doc_id": 126, "seg_id": 274, "translation": { "en": "176.Section 7(1)(a) and (c) concerns offering an advantage as an inducement whereas section 7(1)(g) concerns soliciting or accepting an advantage as an inducement.", "zh-HK": "176.第7(1)(a)和(c)條是提供利益作為誘因，而第7(1)(g)條是索取或接受利益作為誘因。" } }, { "doc_id": 126, "seg_id": 275, "translation": { "en": "177.For the purpose of section 7(1)(a) and (c), it is sufficient that Party A offered an advantage to Party B as an inducement; whether Party B accepted the advantage is neither here nor there. If Party B accepted it, he/she would have committed an offence under section 7(1)(e) or section 7(1)(g).", "zh-HK": "177.為著第7(1)(a)和(c)條的目的，甲方向乙方提供利‍益作為誘因已經足夠，乙方有沒有接受該利益並非關鍵。若‍乙方有，他也干犯了第7(1)(e)條或第7(1)(g)條的罪行。" } }, { "doc_id": 126, "seg_id": 276, "translation": { "en": "178.Likewise, for the purpose of section 7(1)(g), it is sufficient that Party B solicited an advantage from another person; whether the latter then provided Party B with an advantage is neither here nor there. If the latter did, he/she would have committed an offence under section 7(1)(c).", "zh-HK": "178.同樣的，為著第7(1)(g)條的目的，乙方向他人索‍取利益已經足夠，後者有沒有因而向乙方提供利益並非關鍵。若後者有這樣做，他便干犯了第7(1)(c)的罪行。" } }, { "doc_id": 126, "seg_id": 277, "translation": { "en": "C3.Circumstances set out in sub-paragraphs (i) to (iii)", "zh-HK": "C3.第(i)至(iii)節的情況" } }, { "doc_id": 126, "seg_id": 278, "translation": { "en": "179.Section 7(1)(a), (c) and (g) refers to three circumstances:", "zh-HK": "179.第7(1)(a)、(c)及(g)條提到三種情況：" } }, { "doc_id": 126, "seg_id": 279, "translation": { "en": "(1)Sub-paragraph (i) - Party B or Party C to stand, or not to stand, as a candidate at the election;", "zh-HK": "第(i)節—乙方或丙方在選舉中參選或不參選；" } }, { "doc_id": 126, "seg_id": 280, "translation": { "en": "(2)Sub-paragraph (ii) - if Party B or Party C has been nominated as a candidate at the election, to withdraw the nomination;", "zh-HK": "第(ii)節—如乙方或丙方已在選舉中獲提名為候選人，撤回接受提名；" } }, { "doc_id": 126, "seg_id": 281, "translation": { "en": "(3)Sub-paragraph (iii) - if Party B or Party C has been nominated as a candidate at the election, not to use his best endeavours to promote his election.", "zh-HK": "第(iii)節—如乙方或丙方已在選舉中獲提名為候選人，不盡最大的努力促使其當選。" } }, { "doc_id": 126, "seg_id": 282, "translation": { "en": "180.Sub-paragraphs (ii) and (iii) clearly refer to the situation in which Party B or Party C has been nominated as a candidate.", "zh-HK": "180.第(ii)及第(iii)節明顯是指乙方或丙方已經獲提名成為候選人的情況。" } }, { "doc_id": 126, "seg_id": 283, "translation": { "en": "181.The scope of sub-paragraph (i) needs further explanation.", "zh-HK": "181.第(i)節所包涵的範圍需要多點解釋。" } }, { "doc_id": 126, "seg_id": 284, "translation": { "en": "182.According to section 2 of the Ordinance, the statutory definition of “candidate” is:", "zh-HK": "182.根據《該條例》第2條，候選人(candidate)的法定定義是：" } }, { "doc_id": 126, "seg_id": 285, "translation": { "en": "(a)“candidate” means a person who stands nominated as a candidate at an election; and", "zh-HK": "指在某項選舉中接受提名為候選人的人；" } }, { "doc_id": 126, "seg_id": 286, "translation": { "en": "(b)“candidate” also means a person who, at any time before the close of nominations for an election, has publicly declared an intention to stand as a candidate at the election,", "zh-HK": "亦指在某項選舉的提名期結束前的任何時間曾公開宣布有意在該項選舉中參選的人，" } }, { "doc_id": 126, "seg_id": 287, "translation": { "en": "and in relation to an election to return Members for a Legislative Council geographical constituency or the District Council (second) functional constituency, “candidate” includes a person who is one of a group of candidates.", "zh-HK": "而就為選出立法會地方選區或區議會（第二）功能界別議員而舉行的選舉而言，包括候選人組合中的候選人。" } }, { "doc_id": 126, "seg_id": 288, "translation": { "en": "183.The statutory definition of “group of candidates” is:", "zh-HK": "183.候選人組合(group of candidates)的法定定義是：" } }, { "doc_id": 126, "seg_id": 289, "translation": { "en": "(a)“group of candidates” means the persons whose names appear on a list of candidates nominated for election to return Members for a Legislative Council geographical constituency or the District Council (second) functional constituency, other than persons whose names have, in accordance with section 38 of the Legislative Council Ordinance (Cap. 542), been excluded from or struck off such a list; and", "zh-HK": "就為選出立法會地方選區或區議會（第二）功能界‍別議員而舉行的選舉而言，指名列獲提名參選的候選人名單上的人，但不包括姓名按照《立法會條‍例》（第542章）第38條自該名單上除去或剔‍除的人；" } }, { "doc_id": 126, "seg_id": 290, "translation": { "en": "(b)in relation to a time before the close of nominations for such an election, “group of candidates” also means those persons who have publicly declared their intention to stand for election as candidates whose names appear on such a list, but does not include persons who have publicly revoked their declaration of intention to stand at the election.", "zh-HK": "亦指在該項選舉的提名期結束前的任何時間曾公‍開宣布有意以名列該名單的候選人的身分參選的‍人，但不包括已公開撤銷該項宣布的人。" } }, { "doc_id": 126, "seg_id": 291, "translation": { "en": "There are thus two types of candidates: (1) a person who stands nominated as a candidate; and (2) a person who, before the close of nominations, has publicly declared an intention to stand as a candidate but has not yet been nominated.", "zh-HK": "是故，候選人有兩類：(1)已經接受提名成為候選人的人；和(2)在提名期結束前曾公開宣布有意參選，但還未接受提‍名的人。" } }, { "doc_id": 126, "seg_id": 292, "translation": { "en": "184.For Party B or Party C “to stand as a candidate”, he/she either stands nominated as a candidate or has publicly declared an intention to stand as a candidate before the close of nominations, although has not yet been nominated.", "zh-HK": "184.乙方或丙方「參選」(to stand as a candidate)，可以是他接受提名成為候選人；或是他雖然仍未接受提名成為候選人，但在提名期結束前公開宣布有意參選。" } }, { "doc_id": 126, "seg_id": 293, "translation": { "en": "185.For Party B or Party C “not to stand as a candidate”, the following circumstances may be involved:", "zh-HK": "185.乙方或丙方「不參選」(not to stand as a candidate)可以有下面的情況：" } }, { "doc_id": 126, "seg_id": 294, "translation": { "en": "(1)If he/she has never publicly declared an intention to stand as a candidate, he/she will neither so declare nor stand nominated as a candidate. In that case, of course he/she is not to stand as a candidate.", "zh-HK": "若他從未公開宣布有意參選，他既不會這樣做也不‍會接受提名成為候選人。他這樣做當然就是不‍參‍選。" } }, { "doc_id": 126, "seg_id": 295, "translation": { "en": "(2)He/she has publicly declared an intention to stand as a candidate but has thereafter publicly revoked that declaration. In that case, naturally he/she is not to stand as a candidate.", "zh-HK": "他曾公開宣布有意參選，但之後公開撤銷該項宣‍布。他這樣做自然就是不參選。" } }, { "doc_id": 126, "seg_id": 296, "translation": { "en": "(3)He/she has publicly declared an intention to stand as a candidate but does not stand nominated as a candidate. Despite the fact that he/she has publicly declared to stand as a candidate and is therefore still a candidate as a matter of law, only those who are validly nominated can stand as candidates upon the close of nominations and be elected by electors. Therefore, by not standing nominated, he is, in effect, not to stand as a candidate.", "zh-HK": "他曾公開宣布有意參選，但他不接受提名成為候選人。雖然他曾公開宣布參選，所以在法律上仍是候選人，但惟有獲得有效提名的候選人才可以在提名期結束後參選和被選民投票選上，因此他不接受提‍名，實際上就是不參選。" } }, { "doc_id": 126, "seg_id": 297, "translation": { "en": "186.The offences under section 7(1)(a), (c) and (g) are offering, soliciting or accepting an advantage as an inducement for the acts referred to in sub-paragraphs (i), (ii) or (iii). It will be sufficient as long as the offender offered, solicited or accepted an advantage as an inducement; whether the acts referred to in sub-paragraphs (i), (ii) or (iii) were actually done is neither here nor there.", "zh-HK": "186.第7(1)(a)、(c)和(g)條的罪行是提供、索取或接受利益作為作出第(i)、(ii)或(iii)節列出之舉措的誘因，只要犯案者有提供、索取或接受利益作為誘因便已足夠，事實上第(i)、(ii)或(iii)節列出之的舉措有沒有作出來並非關鍵。" } }, { "doc_id": 126, "seg_id": 298, "translation": { "en": "D.Mens rea", "zh-HK": "D.造意 (mens rea)" } }, { "doc_id": 126, "seg_id": 299, "translation": { "en": "187.Section 7(1) starts by stating that a person engages in corrupt conduct at an election if he/she “corruptly” does the specified acts. “Corruptly” is the mens rea of all the offences under section 7(1). The interpretation of the word “corruptly” requires a consideration of the context and purpose of the relevant provisions.", "zh-HK": "187.第7(1)條第一句是「任何人舞弊地作出以下行‍為」，『舞弊地』(corruptly)是第7(1)條所有罪行的造意。如何詮釋舞弊地這詞，需要考慮相關條文的意境和目的。" } }, { "doc_id": 126, "seg_id": 300, "translation": { "en": "188.The offences under section 7(1) aim to prohibit anyone from obtaining personal gains from an election. Any act of offering, soliciting or accepting an advantage goes against the legislative purpose of enacting the section 7(1) offences and will certainly prevent an election from being conducted fairly, openly and honestly. In other words, the section 7(1) offences must be inherently culpable. Therefore, as long as the offender had the intent to commit the corrupt conduct in question, he must have acted “corruptly”. The dual intent mentioned by the trial judge is unnecessary.", "zh-HK": "188.第7(1)條的罪行旨在禁止任何人在選舉中得到個‍人私利。任何提供、索取或接受利益的行為，都是違反第‍7(1)‍條罪行的立法目的，必然會妨礙選舉在公平、公開和誠實的情況下進行。換句話說，第7(1)條罪行的罪責必然是固有的(inherently culpable)。因此，只要犯案者有意圖作出涉案的舞弊行為，他必然已是『舞弊地』行事。原審法官所‍說的雙重意圖並無需要。" } }, { "doc_id": 126, "seg_id": 301, "translation": { "en": "189.The applicant cited the Hansard in relation to the amendment of section 7(1), which shows that the word “corruptly” was not in the original bill and was added only after deliberation by the Legislative Council. This, in my view, offers little assistance to the interpretation of the word “corruptly”. As mentioned above, the court may refer to the Hansard to ascertain the context and purpose of an ordinance. However, the court usually will not determine the meaning of words in a particular provision by reference to discussions in the Legislative Council. In respect of the Ordinance, its context and purpose, which are expressly stated in section 3, cannot be clearer. In interpreting the word “corruptly” by way of the purposive approach, regard must still be had to the actual words used by the legislature and the objective legislative intent expressed by those words.", "zh-HK": "189.申請人引用有關修訂第7(1)條之立法會會議過程的官方紀錄(Hansard)，當中顯示本來的條例草案並無『舞弊地』一詞，這詞是立法會審議後才加上的。本席認為，這點對如何詮釋『舞弊地』沒有太大幫助。如上文所說，法庭可以參考立法會會議過程的官方紀錄，以得出條例的意境和目‍的，但法庭一般都不會以立法會的討論來決定某條文用詞的意思。就《該條例》，其意境和目的是清楚不過，因為在第3條已經有明文表述。根據按目的詮釋方式詮釋『舞弊地』這詞，還是要看立法會實際的用詞，和該用詞客觀地所表達的立法意思。" } }, { "doc_id": 126, "seg_id": 302, "translation": { "en": "E.No Violation of the Basic Law or the Bill of Rights", "zh-HK": "E.並無違反《基本法》或《人權法》" } }, { "doc_id": 126, "seg_id": 303, "translation": { "en": "190.Finally, it must be pointed out that the purpose of the Ordinance is to ensure that elections are conducted fairly, openly and honestly, and section 7(1) prohibits the relevant corrupt conduct so as to eradicate the manipulation of or influence on the outcome of elections by people using financial means, which hinders electors and candidates from exercising their free will through elections. Section 7(1) does not violate the provisions of the Basic Law and the Bill of Rights relating to elections. In this respect, the position taken by and the submissions made by Mr. Kwok on behalf of the 2nd Applicant are wholly untenable.", "zh-HK": "190.最後，本席必須指出，《該條例》的目的是要確保有關選舉得以公平、公開和誠實地進行，第7(1)條禁止有關的舞弊行為發生，旨在杜絕有人以財力操控或影響選舉結‍果，妨礙選民和候選人以選舉表現其自由意志。第 7(1) 條沒有違反《基本法》和《人權法》有關選舉的條文。代表第‍二申請人的郭大律師在這方面的立場和所有陳詞完全站不住腳。" } }, { "doc_id": 126, "seg_id": 304, "translation": { "en": "F.Conviction is Correct", "zh-HK": "F.定罪裁決正確" } }, { "doc_id": 126, "seg_id": 305, "translation": { "en": "191.On the correct interpretation of section 7(1)(a), (c) and (g) of the Ordinance, and in light of the findings of fact of the trial judge, the 1st to 3rd Applicants must have committed the relevant offences. The guilty verdicts passed on them by the trial judge are entirely correct.", "zh-HK": "191.根據《該條例》第7(1)(a)、(c)及(g)條的正確詮釋，和原審法官的事實裁斷，第一至第三申請人必然有干犯相關的控罪。原審法官裁定他們罪成是完全正確的。" } }, { "doc_id": 126, "seg_id": 306, "translation": { "en": "Hon Pang JA:", "zh-HK": "高等法院上訴法庭法官彭偉昌：" } }, { "doc_id": 126, "seg_id": 307, "translation": { "en": "192.I agree with the judgments of Yeung VP and Poon JA.", "zh-HK": "192.本席同意楊副庭長和潘上訴法庭法官的裁決。" } }, { "doc_id": 126, "seg_id": 308, "translation": { "en": "Mr. Jonathan Man, SADPP and Ms. Samantha Chiu, SPP of the Department of Justice, for the respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員萬德豪及高級檢‍控官招秉茵代表。" } }, { "doc_id": 126, "seg_id": 309, "translation": { "en": "The 1st Applicant in person, present.", "zh-HK": "第一申請人：沒有律師代表，親自出庭應訊。" } }, { "doc_id": 126, "seg_id": 310, "translation": { "en": "Mr. Douglas Kwok, instructed by Bond Ng Solicitors, for the 2nd Applicant", "zh-HK": "第二申請人：由伍展邦律師行轉聘大律師郭憬憲代表。" } }, { "doc_id": 126, "seg_id": 311, "translation": { "en": "Mr. Edwin Choy and Mr. Joe Chan, instructed by Messrs Simon S.M. Kwok & Co., for the 3rd Applicant.", "zh-HK": "第三申請人：由郭紹文律師事務所轉聘大律師蔡維邦及大‍律師陳偉彥代表。" } }, { "doc_id": 127, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 127, "seg_id": 2, "translation": { "en": "The Appellant was charged with an offence of “rape”. After a jury trial before Tong J in the Court of the First Instance of the High Court, the Appellant was convicted of the charge and sentenced to an imprisonment term of 7 years and six months. The Appellant sought leave to appeal against his conviction and sentence. We granted leave and treating the hearing as the appeal, allowed the appeal, quashed the conviction and sentence imposed for the offence and ordered a retrial. The following are the reasons for the judgment of the Court.", "zh-HK": "上訴人被控一項「強姦」罪，案件經高等法院原訟法庭法官湯寶臣及陪審團審理後，上訴人被裁定罪名成立及被判處入獄七年六個月。上訴人就定罪及刑期提出上訴許可申請。本庭批准針對定罪的上訴許可申請，視該申請為正式上訴、批准上訴、撤銷定罪及命令案件重審。以下是本庭的判案理由。" } }, { "doc_id": 127, "seg_id": 3, "translation": { "en": "The Prosecution Case", "zh-HK": "控方案情" } }, { "doc_id": 127, "seg_id": 4, "translation": { "en": "At the time the crime occurred, the victim was a girl of 14 years of age while the Appellant was a young person of 19 years of age. The victim came to know the Appellant on the Internet. The victim subsequently realised that she had seen the Appellant before in a comic bookstore (where he worked) when she patronized the bookstore previously.", "zh-HK": "案發時受害人是一名14歲的女童；上訴人是一名19 歲的青年人。受害人在互聯網上結識上訴人，受害人後來知道她早前光顧一所漫畫店時見過任職於該漫畫店的上訴人。" } }, { "doc_id": 127, "seg_id": 5, "translation": { "en": "On 3 January 2008, the Appellant invited the victim to his home. The victim went to the appointed place. The two of them watched DVD in the Appellant’s room. Afterwards, the Appellant asked the victim to sit on a bed, then he embraced her and fondled her breasts and private part. The victim told the appellant not to do that and brushed away his hand(s), but the Appellant continued fondling the victim. With the excuse that she needed to go to the toilet, the victim tried to phone her schoolmate but she was unable to reach that person. The victim then returned to the appellant’s room and told him that she had to leave. However, the appellant pulled the victim onto the bed with force, pinned her down with his body pressing against hers and removed her underpants. He inserted his finger(s) and penis into her vagina successively. Not long afterwards, the Appellant ejaculated outside her. All the time throughout, the victim kept struggling and she asked the Appellant to stop doing so but he ignored her. Since the Appellant could exert greater power and force than the victim, the victim was unable to break loose. After the event, the victim left the Appellant’s home and called a schoolmate of hers and told the schoolmate about the incident. The victim also told a close male friend about the incident. The victim then took the morning after pill. On the 3 January entry in her diary, the victim made the following record:", "zh-HK": "2008 年 1 月 3 日上訴人邀請受害人到他的家。受害人依約赴會。兩人在上訴人的房間內看影碟。之後，上訴人叫受害人坐在床上，然後擁抱她，又撫摸她的胸部和私處。受害人叫上訴人不要這樣做及撥開他的手，但上訴人繼續撫摸受害人。受害人藉詞上廁所致電同學但聯絡不上。受害人之後返回上訴人的房間告訴上訴人她要離開，但上訴人強行把她拉到床上並用身體壓着她及脫去她的內褲，他先後以手指及陽具插入她的陰道，不久上訴人在受害人的體外射精，受害人一直掙扎及叫上訴人不要這樣做，但他沒有理會她。由於上訴人的氣力比受害人大，她無法掙脫。受害人事後離開上訴人家並致電給她的一名同學告之事件。受害人亦把這件事情告知一名稔熟的男性朋友。受害人服食事後避孕丸。受害人在她的日記簿1月3 日寫下以下一則日記：" } }, { "doc_id": 127, "seg_id": 6, "translation": { "en": "“Loss of virginityReally very painful… Why did it to me?", "zh-HK": "控方將有關的日記的副本作為呈堂證據。" } }, { "doc_id": 127, "seg_id": 7, "translation": { "en": "Having taken morning after pill… I’m in great fear I will get pregnant! Now realise that people around me … love me very much!”", "zh-HK": "受害人的母親發現受害人的學業成績突然大倒退，她為了了解事情就偷看受害人的日記，並閱讀了上述的一則日記。受害人在母親追問下把事件和盤托出。兩人一同報警。" } }, { "doc_id": 127, "seg_id": 8, "translation": { "en": "The Prosecution tendered a duplicate copy of the diary to Court as evidence.", "zh-HK": "上訴人的證供" } }, { "doc_id": 127, "seg_id": 9, "translation": { "en": "When the victim’s mother discovered that the academic performance of the victim had suddenly slipped a lot, in order to find out what had happened, she peeped into the diary of the victim and read the above diary entry. Being subject to her mother’s persistent questioning, the victim disclosed the whole incident. The two then reported the matter to the police.", "zh-HK": "上訴人選擇作供自辯。他指當日是受害人主動到他的家，並進入他的房間及躺在他的床上，上訴人見狀便擁抱和吻她及撫摸她的身體。受害人完全沒有拒絕他，他脫去受害人和自己的褲子，欲與受害人性交，但受害人對他說：「第一次見面，唔好，下次先啦！」。上訴人說他當時不知道受害人的真正想法，為了試探她是否不願意性交，所以再與受害人的身體接觸，但被受害人推開及再重複上述那番話。上訴人此時明白受害人真的不願意性交，所以即時停止動作，之後各自穿回褲子。上訴人否認他曾經用手指或陽具插入受害人的陰道及在她的體外射精。" } }, { "doc_id": 127, "seg_id": 10, "translation": { "en": "The Evidence of the Appellant", "zh-HK": "控方的結案陳詞" } }, { "doc_id": 127, "seg_id": 11, "translation": { "en": "The Appellant elected to give evidence in Court to defend himself. He claimed that on the day in question it was the victim who came to his home of her own accord, went into his room and lay down on his bed. Seeing that, the Appellant embraced her, kissed her and fondled her. The victim did not refuse him at all. He then removed the trousers of his and that of the victim and intended to have sexual intercourse with the victim. But the victim said to him, ‘This is the first time we meet, don’t, leave it for the next time.’ The Appellant said that at the time he had no idea what the victim had actually in her mind. To try and test if she was unwilling to have sexual intercourse, he once again proceeded to touch the body of the victim. But the victim pushed him away and repeated the above utterance. At that time the Appellant came to realise that the victim was really unwilling to have sexual intercourse, he stopped his act immediately. After that, they put on their own trousers themselves. The Appellant denied ever having inserted his finger(s) or penis into the vagina of the victim or ejaculating outside her.", "zh-HK": "控方律師在結案陳詞時引用受害人有關日記的內容，並對陪審團說有關的日記內容與受害人在法庭上所作出的證供吻合。受害人在庭上說「給人強姦」與日記內容如「破處」、「真的很痛…..點解搞我？」、「食咗事後丸..... 我好怕會有咗！原來身邊的人.....都好愛我！」吻合。另外，受害人在日記內寫下有關痛楚的感覺及「為甚麼弄她？」這句子都顯示出她是在不自願的情況下發生性行為的。日記寫下「食事後丸，好怕會有咗」這句子亦與受害人聲稱她曾經進行性交之說吻合，因為如她沒有進行過性交的話，她就不會恐怕懷孕了。控方律師稱若實情是如上訴人所說他只是將陽具在受害人的陰部外面摸擦的話，那麼受害人何以會恐怕懷孕？控方律師亦說日記寫下：「原來身邊的人好愛我」這句話是顯示受害人在事後有向朋友傾訴過這件事，而他們是支持她及幫助她的。" } }, { "doc_id": 127, "seg_id": 12, "translation": { "en": "The Closing Submission of the Prosecution", "zh-HK": "陪審團在湯法官對他們作出指引後就退席進行商議。之後陪審團向法庭要求提供受害人的日記正本。湯法官根據要求將日記的正本交給他們。" } }, { "doc_id": 127, "seg_id": 13, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 127, "seg_id": 14, "translation": { "en": "The ground of appeal put forward in this case is that Mr. Justice Tong did not give a proper direction to the jury on the contents of the diary, and therefore rendering the conviction unsafe and unsatisfactory.", "zh-HK": "本案的上訴理由是湯法官並沒有就日記的內容對陪審團作出適當的指引，致令有關定罪不安全及不穩妥。" } }, { "doc_id": 127, "seg_id": 15, "translation": { "en": "Legal principles", "zh-HK": "法律原則" } }, { "doc_id": 127, "seg_id": 16, "translation": { "en": "In using the victim’s diary record written by her after the incident, the prosecution was obviously trying to persuade the jury to accept that the victim’s evidence against the Appellant was the truth because her diary record made after the incident tallied with and were consistent with the testimony that she gave in court.", "zh-HK": "控方引用受害人在案發後在日記簿上的記錄的目的明顯是要求陪審團接納受害人針對上訴人的證供是真實的，因為受害人於事發後在她的日記寫下的內容與受害人在法庭上作出的證供吻合及一致。" } }, { "doc_id": 127, "seg_id": 17, "translation": { "en": "When referring to a witness’ previous utterance as being consistent with his or her testimony given in court, the relevant legal principles are:", "zh-HK": "有關引用證人早前所說的話與他在法庭上作出的證供一致的法律原則如下：" } }, { "doc_id": 127, "seg_id": 18, "translation": { "en": "In general, even if a previous utterance made by a witness agrees with the testimony of the witness given in court, it cannot serve as corroborative evidence in support of the testimony because the previous utterance will not be admitted as evidence at all. This reason is that the relevant consistent utterance and testimony came from the same witness. Even though what she said before and afterwards are consistent, it does not suffice to prove that her previous utterance and her testimony are true. Hence, when considering how much weight to be attached to the related evidence, the utterance that is consistent with the testimony does not serve any substantive purpose.", "zh-HK": "一般來說，證人曾經說過一些與他在法庭上的證供一致的話是不會成為有關證供的佐證。這些說話根本不會被法庭接受為證據，因為有關一致的說話和證供都是來自同一位證人，就算他說過前後一致的話也不足以證明他所說的話和證供是真實的，因此在考慮給予有關證據權重而言，這些與證供一致的說話起不了實質作用。" } }, { "doc_id": 127, "seg_id": 19, "translation": { "en": "An exception to this principle is ‘the recent complaint’ made by the victim of a sexual offence, i.e. a complaint made by the victim at the earliest reasonable opportunity after the occurrence of the incident to the effect that she had been sexually abused. The ‘recent complaint’ supports the allegation of sexual abuse by the victim against the defendant as being a consistent one. And it also serves to negate any suggestion that the victim had given prior consent to have sex. See Phipson on Evidence (16th Edition) paras 12-72 and 12-74.", "zh-HK": "這原則的其中一個例外情況是性罪行的受害人所作出的「最近的申訴」(recent complaint)，即是受害人在性罪行發生後的第一個合理機會下對被性侵犯一事所作出的申訴。「最近的申訴」的作用是支持受害人針對被告人性侵犯的指控是前後一致的及否定受害人曾經同意性交，見：Phipson on Evidence 第16版，第 12―72 及 12―74 段。" } }, { "doc_id": 127, "seg_id": 20, "translation": { "en": "Nevertheless, where the Court allows the prosecution to rely on a ‘recent complaint’ as evidence, the Court still has to give a direction to the jury to enable them to know clearly that even if a previous utterance made by the victim after the occurrence of the crime did tally with the testimony given by the victim in court, it does not follow that her previous utterance is the truth. The reason is that the relevant utterance does not come from an independent witness but from the victim herself. Had the Court not given a direction on this, the jury may be under the misapprehension that the utterance is a further piece of evidence in support of the allegation made by the victim against the Defendant, without knowing that such an utterance serves as any other evidence for them to refer to when they decide whether the victim’s testimony given in court is the truth or not. Should the Court fail to give such a direction to the jury, the conviction would be unsafe and unsatisfactory, see: Abdul Khar Mohammad Islam [1999] 1 Cr. App. R. 22 and R v. Croad [2001] EWCA Crim 644. Also see: R v. B [1997] Crim LR 220.", "zh-HK": "不過，就算法庭准許控方引用有關「最近的申訴」為證據，但法庭仍要向陪審團作出指引，讓他們清晰知道就算受害人於案發後曾經說過與她在庭上證供一致的說話，這也不表示她以前所說的話是真實的，理由是有關的說話不是來自一位獨立證人，而是來自受害人本人。若法官沒有作出有關的指引，陪審團或會誤當有關的說話為一項受害人指控被告人的進一步證據，而不知道它只是如其他的證據一樣給他們參考以裁定受害人在法庭上的證供是否真實。若果法官沒有向陪審團作出有關的指引的話，這會令定罪變得不穩妥，見： Abdul Khar Mohammad Islam [1999] 1 Cr. App. R. 22 及 R v. Croad [2001] EWCA Crm 644，另見：R v. B [1997] Crim LR 220。" } }, { "doc_id": 127, "seg_id": 21, "translation": { "en": "Views of the Court", "zh-HK": "本庭意見" } }, { "doc_id": 127, "seg_id": 22, "translation": { "en": "During the trial, the legal representative of the Defendant never raised any objection to the production of the diary as evidence by the prosecution and neither the defence counsel nor the prosecuting counsel sought a relevant jury direction from Mr. Justice Tong. As the comments in R v. B indicate, the contents of the diary may not constitute the basis of a ‘complaint’ since the victim might not have thought of showing her diary to a third party at all. Hence, what she wrote in her diary might not necessarily be a complaint. Since both counsel on appeal did not make any submission on whether the diary record could be accepted by the court as a ‘recent complaint’, this Court is not going to give its views on this issue. This Court is of the view that should Mr. Justice Tong be able to find that the contents of the diary constituted a ‘recent complaint’ and admitted it as evidence, he should have directed the jury to enable them to understand the practical function of this piece of evidence, but he did not do so. Consequently, it is highly likely that the jury would have mistaken the contents of the diary as further evidence from the prosecution in support of the allegation made by the victim against the Defendant, rather than for merely assisting the jury to consider whether the victim’s evidence was true or not. This Court therefore finds that the conviction is unsafe and unsatisfactory.", "zh-HK": "原審時，當時代表上訴人的律師沒有反對控方將日記作為呈堂證據，而雙方律師亦沒有要求湯法官向陪審團作出有關指引。根據R v. B一案的法律評論，日記的內容未必可以構成「申訴」的基礎，理由是受害人可能沒有想過給他人閱讀她的日記， 因此她在日記簿內記下的事情未必是申訴。由於雙方律師在上訴時均沒有就法庭可否接納有關日記為「最近的申訴」這項議題作出陳詞，本庭因此不會對這項議題發表意見。本庭認為就算湯法官可以裁定日記內容是「最近的申訴」及接納它為呈堂證據，他也應該向陪審團作出有關的指引，讓他們了解這項證據的實際作用，但他並沒有這樣做，所以陪審團是極有可能誤以為日記的內容是控方提出受害人指控被告人的進一步證據，而不是僅用以協助考慮受害人的證供是否真實。本庭因此裁定有關的定罪是不安全及不穩妥的。" } }, { "doc_id": 127, "seg_id": 23, "translation": { "en": "Mr. Justice Tong stated in the course of directing the jury that the only evidence in the case was victim’s the testimony, though he gave the following direction on the complaint made by a victim after she had been sexually abused:", "zh-HK": "湯法官在引導陪審團時曾經說過案中唯一的證據是受害人的證供，雖然他就一名受害人遭人性侵犯後所作的投訴作出以下的指引：" } }, { "doc_id": 127, "seg_id": 24, "translation": { "en": "“Members of the jury, usually when a female had been sexually abused, perhaps she would have, as the first opportunity arose, made a complaint to her family member(s), friend(s) or the police. Had there been such evidence of complaint, it could show that what the victim said before and afterwards were consistent. But an immediate complaint does not necessarily mean that what the female victim said must be true. It only shows that what she said before and afterwards are consistent. Looking at the other side of the argument, had the female victim not made any complaint all along, or what she said before and afterwards were contradictory, the credibility and reliability of her account of the incident would be weakened.", "zh-HK": "「各位陪審員，通常當一個女子喺被性侵犯之後，或者都應該會喺第一時間向家人、朋友或者警方投訴，如果有呢一方面嘅投訴證據係可以顯示出受害人所講嘅係前後一致，但係即時投訴並唔代表女方所講嘅一定係真話，只係顯示佢講嘅係前後一致而已，反過嚟講，如果女方一直冇作過投訴或者佢所講嘅有前後矛盾之處，咁樣就會係削弱佢所講嘅事情嘅可信性及可靠性喇。」" } }, { "doc_id": 127, "seg_id": 25, "translation": { "en": "But Mr. Justice Tong did not give a direction on the contents of the diary in particular. Consequently, this Court considers the direction given by Mr. Justice Tong as not comprehensive. The Senior Assistant Director of Public Prosecutions for the Respondent, Mr. William Tam Yiu Ho, accepts that the direction given by the Judge was not defect free.", "zh-HK": "但他並沒有特別就日記的內容作出指引，因此本庭認為他作出的指引是不全面的。代表答辯人的高級助理刑事檢控專員譚耀豪接受湯法官的指引存有缺陷。" } }, { "doc_id": 127, "seg_id": 26, "translation": { "en": "Retrial", "zh-HK": "重審" } }, { "doc_id": 127, "seg_id": 27, "translation": { "en": "Mr. Tam of Counsel seeks an order for a retrial. Having considered all the circumstances of the case, including factors that the Appellant was tried once and he has been imprisoned for over 14 months, that the tender-age victim will be required to give evidence once again about the sexual abuse incident if there is a retrial, the serious nature of charge, the strength and weaknesses of the prosecution evidence and the reason(s) for quashing the conviction, this Court finds that there should be a retrial. Consequently, we now make an order for a retrial, and grant the Appellant bail pending the retrial.", "zh-HK": "譚律師要求本庭命令案件重審。本庭考慮過整體情況，包括上訴人已經接受過一次審訊及服刑逾 14個月、若果重審案件會令一名年幼的受害人就她被性侵犯一事再次作證、控罪的嚴重性、控方證據的強弱及撤銷定罪的原因等因素後裁定案件須重審。本庭命令案件重審，但批准上訴人保釋候審。" } }, { "doc_id": 127, "seg_id": 28, "translation": { "en": "Costs order", "zh-HK": "訟費命令" } }, { "doc_id": 127, "seg_id": 29, "translation": { "en": "As regards the Appellant’s application for costs, it is ordered that costs of the Appeal and that of the original trial be to the Appellant. Mr. Tam of Counsel does not resist the application.", "zh-HK": "本庭應上訴人的申請給予他上訴及原審訟費，譚律師對該申請不表示反對。" } }, { "doc_id": 127, "seg_id": 30, "translation": { "en": "Mr. William Tam Yiu Ho, Senior Assistant Director of Public Prosecutions, for the Respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員譚耀豪代表。" } }, { "doc_id": 127, "seg_id": 31, "translation": { "en": "Mr. Alan So, instructed by Wan Henry and Yeung, for the Appellant.", "zh-HK": "上訴人： 由尹楊律師事務所轉聘蘇國強大律師代表。" } }, { "doc_id": 128, "seg_id": 1, "translation": { "en": "REASONS FOR JUDGMENT Hon Cheung JA:", "zh-HK": "上訴法庭法官張澤祐：" } }, { "doc_id": 128, "seg_id": 2, "translation": { "en": "Fair trial", "zh-HK": "公正審訊" } }, { "doc_id": 128, "seg_id": 3, "translation": { "en": "In Hong Kong, every defendant charged with a criminal offence is entitled to a fair trial by an independent and impartial court of law. This is a fundamental right afforded by the Basic Law of the Hong Kong Special Administrative Region, the Bill of Rights and the common law. The prerequisite for securing this right of a defendant to a fair trial is that the judge must conduct the trial in an impartial and fair manner. The judge must neither be biased towards either the prosecution or the defence, nor be biased against the defendant or his grounds of defence.", "zh-HK": "在香港任何被刑事檢控的被告人都應獲得獨立和公正無私的法庭審訊，這是《香港特別行政區基本法》、《人權法》及普通法所賦予的基本權利。要確保被告人獲得公正的審訊的先決條件就是法官必須以持平及公正的手法來進行審訊，法官是不可以偏幫控辯任何一方，亦不可以對被告人或其答辯理由存有偏見。" } }, { "doc_id": 128, "seg_id": 4, "translation": { "en": "The concept that the judge must not be biased against a defendant refers not only to actual bias but also to the giving of the impression by the judge’s conduct or comments at trial that he had lost its neutrality or impartiality. If there was a real danger that such conduct or speech had materially affected the court’s judgment adverse to the defendant so as to have deprived him of a fair trial, then the judgment is liable to be set aside by the appellate court: see HKSAR v. Leung Kwok Hung [2007] 1 HKLRD 797.", "zh-HK": "法官不可以對被告存有偏見的概念並不單單指實質的偏見，而是包括法官在審訊時的行為或言論給人的印象是他喪失了中立或持平的立場。若有關的行為或言論確實是存有實質影響他的裁決的危險，即他會作出對被告人不利的判決，以致被告人不能獲得公平的審訊，有關的判決有可能被上訴法庭推翻：見HKSAR v. Leung Kwok Hung 香港特別行政區政府訴梁國雄 [2007] 1 HKLRD 797。" } }, { "doc_id": 128, "seg_id": 5, "translation": { "en": "The convictions of the three appellants (the 1st, 2nd and 4th defendants) in the present case are quashed by this court on the ground that, in my judgment, they had been deprived of a fair trial: it is clear that, by his conduct and comments at trial, the trial judge had given the impression that he was not impartial or neutral; furthermore, there was the real danger as described above, namely that the judge’s conduct had actually influenced him into making a decision adverse to the defendants, thereby depriving them of their right to a fair trial.", "zh-HK": "本案的三名上訴人（即第一、二及四被告）的定罪被本庭推翻，本席所持的理由是他們未獲得公平審訊：原審法官在審訊時的行為及言論明顯給人的印象是他不是持平及保持中立，案件更確實存有上文指出的危險即法官的行為確實導致他對被告人作出不利的判決，以致剝奪了被告人應享有公平審訊的權利。" } }, { "doc_id": 128, "seg_id": 6, "translation": { "en": "The charges", "zh-HK": "各項控罪" } }, { "doc_id": 128, "seg_id": 7, "translation": { "en": "The 1st, 2nd and 4th defendants, all of whom are Mainland residents, were charged with the following offences:", "zh-HK": "第一、二及四被告均是內地居民，他們被控以下控罪：" } }, { "doc_id": 128, "seg_id": 8, "translation": { "en": "Conspiracy to steal Buddhist pine trees planted in the country parks of Hong Kong, contrary to section 7 of the Theft Ordinance (Cap. 210 of the Laws of Hong Kong) and sections 159A and 159C of the Crimes Ordinance (Cap. 200 of the Laws of Hong Kong);", "zh-HK": "串謀偷竊種植於香港郊野公園的羅漢松樹木，違反《盜竊罪條例》第 7 條（香港法例第 210 章）及《刑事罪行條例》第159A 及 159C 條（香港法例第200章）；" } }, { "doc_id": 128, "seg_id": 9, "translation": { "en": "Cutting the said plants in the country parks without a permit, contrary to regulation 8 of the Country Parks and Special Areas Regulations (Cap. 208 of the Laws of Hong Kong); and", "zh-HK": "在無許可証在郊野公園內切割有關植物，違反《郊野公園及特別地區規例》第 8 條（香港法例第 208 章）；及" } }, { "doc_id": 128, "seg_id": 10, "translation": { "en": "Remaining in the territory of Hong Kong without authority after having landed in Hong Kong unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance (Cap. 115 of the Laws of Hong Kong).", "zh-HK": "在非法進入香港後未獲授權而留在香港境內，違反《入境條例》第 38(1)(b) 條（香港法例第 115 章）。" } }, { "doc_id": 128, "seg_id": 11, "translation": { "en": "They were also charged, as an alternative to conspiracy to steal, with handling stolen goods, contrary to section 24 of the Theft Ordinance (Cap. 210 of the Laws of Hong Kong).", "zh-HK": "他們亦被控一項串謀盜竊的交替控罪，即處理贓物罪違反《盜竊罪條例》第 24 條（香港法例第 210 章）。" } }, { "doc_id": 128, "seg_id": 12, "translation": { "en": "Save for the guilty plea that the 4th defendant entered in respect of the charge of remaining in Hong Kong without authority, all the charges were denied by the defendants. After trial by Deputy District Judge Symon Wong, the three defendants were convicted of the following offences:", "zh-HK": "除了第四名被告承認未獲授權而留在香港境內的控罪外，他們全部否認控罪。案件經區域法院暫委法官黃汝榮審理後，三名被告被裁定以下罪名成立：" } }, { "doc_id": 128, "seg_id": 13, "translation": { "en": "Conspiracy to steal; and", "zh-HK": "串謀盜竊罪；及" } }, { "doc_id": 128, "seg_id": 14, "translation": { "en": "Cutting plants in the country parks without a permit.", "zh-HK": "無許可証在郊野公園內切割植物罪。" } }, { "doc_id": 128, "seg_id": 15, "translation": { "en": "Deputy Judge Wong also convicted the 1st and 2nd defendants of the offence of remaining in Hong Kong without authority and ordered that the alternative charge of handling stolen goods be left in the court file.", "zh-HK": "黃法官亦裁定第一及第二被告未獲授權而留港罪名成立。黃法官將處理贓物罪的交替控罪存檔於法庭。" } }, { "doc_id": 128, "seg_id": 16, "translation": { "en": "Appearance of bias", "zh-HK": "偏見行為的表現" } }, { "doc_id": 128, "seg_id": 17, "translation": { "en": "In my view, Deputy Judge Wong gave the impression of being biased against the defendants by the following conduct of his at trial:", "zh-HK": "本席認為黃法官在審理本案時所作出的以下行為給人他對被告存有偏見的印象 ：" } }, { "doc_id": 128, "seg_id": 18, "translation": { "en": "The comments or remarks that he made in the course of trial,", "zh-HK": "他在聆訊期間所作出的言論，" } }, { "doc_id": 128, "seg_id": 19, "translation": { "en": "The wordings that he adopted in the Reasons for Verdict,", "zh-HK": "他在判決理由書所採用的言詞，" } }, { "doc_id": 128, "seg_id": 20, "translation": { "en": "The wordings and attitude that he adopted when he verbally delivered the Reasons for Verdict, and", "zh-HK": "他在宣讀判決理由書時的言詞及態度，及" } }, { "doc_id": 128, "seg_id": 21, "translation": { "en": "The comments or remarks that he made after sentencing.", "zh-HK": "他在量刑後所作出的言論。" } }, { "doc_id": 128, "seg_id": 22, "translation": { "en": "Comments at trial", "zh-HK": "審訊時的言論" } }, { "doc_id": 128, "seg_id": 23, "translation": { "en": "I start by dealing with the comments made by the Judge in the course of trial. The 1st and 2nd defendants elected to give evidence. When the 4th defendant indicated through Counsel that he elected not to give evidence, Deputy Judge Wong said:", "zh-HK": "本席首先處理黃法官在審訊期間所作出的言論。第一及第二名被告選擇作供自辯。當第四被告的代表律師告訴黃法官第四被告選擇不作供自辯時，黃法官說：" } }, { "doc_id": 128, "seg_id": 24, "translation": { "en": "Judge:Smart. Alright, regarding closing submissions, do the prosecution and defence intend to make them today or tomorrow?", "zh-HK": "‘官：聰明。好，至於結案陳詞方面，控辯雙方打算今日做吖，抑或聽日？’" } }, { "doc_id": 128, "seg_id": 25, "translation": { "en": "It was in my view most improper for Deputy Judge Wong to use the adjective “smart”. First, this would make one think that the Judge considered the 1st and 2nd defendants unwise or stupid in electing to give evidence. Besides, the Judge had then already rejected the submission of Counsel for the 4th defendant that there was no case to answer and had also ruled that there was prima facie evidence against the 4th defendant. In these circumstances, the Judge’s comment would make one feel that, in his view, the giving of evidence by the 4th defendant would not serve any useful purpose but would rather lead him into making more mistakes by saying more. On any view of the matter, the Judge’s comment clearly gave the impression that he had reached a decision before the trial concluded. He was apparently biased.", "zh-HK": "本席認為黃法官用「聰明」這一個形容詞是極之不妥當的。首先，這會令人覺得他認為第一及第二被告選擇作供是不明智或愚蠢的。另外，當時黃法官已經否定了第四被告的代表律師有關控方未提出表面証據的陳詞及裁定針對第四被告的表面証供成立，在這情況下，黃法官的評論會令人覺得他認為第四被告選擇自辯不但是沒有意思，反而是會講多錯多。無論從任何一個角度來看，黃法官的評論給人的印象明顯是他在案件仍未審結之前就已經作出結論。這是偏見的表現。" } }, { "doc_id": 128, "seg_id": 26, "translation": { "en": "Wordings in the Reasons for Verdict", "zh-HK": "判決理由書的言詞" } }, { "doc_id": 128, "seg_id": 27, "translation": { "en": "Bias can also be discerned from the wordings adopted by the Judge in the Reasons for Verdict. With respect, I am deeply disturbed by those wordings. Having rejected the defence put forward by the 1st defendant, the Judge said:", "zh-HK": "黃法官在判決理由書內所採用的言詞亦顯示出偏見的情況。他採用的言詞令本席深感不安。在拒絕第一被告的答辯理由後，黃法官說：" } }, { "doc_id": 128, "seg_id": 28, "translation": { "en": "In short, the gist of the 1st defendant’s defence is that he had no alternative but was forced to do what he did and that he allowed everything to be manipulated by Mr. Lau. However, the summary does not dovetail with the details and is inundated with errors and omissions. The 1st defendant’s portrayal of himself as an unthinking walking corpse as well as what he said about spirits are weird and benighted.", "zh-HK": "‘長話短說，第一被告答辯大綱，指自己逼於無奈，一切受劉先生擺佈，惟大綱與細節互不接軌，錯漏百出，把自己塑造成行屍走肉，毫無思想，靈魂之說，怪誕愚昧。’" } }, { "doc_id": 128, "seg_id": 29, "translation": { "en": "He further described the 1st defendant as follows:", "zh-HK": "他更形容第一被告人：" } }, { "doc_id": 128, "seg_id": 30, "translation": { "en": "It is astonishing to see such rascally and unruly behaviour in the court. Although every word and every sentence uttered by the 1st defendant were false and fallacious, you do not bear any burden of proof.", "zh-HK": "‘無賴撒野之情，驚現法庭。第一被告雖然字字虛言，句句妄語，但你毫無舉證之責。’" } }, { "doc_id": 128, "seg_id": 31, "translation": { "en": "Further, after rejecting the defence of the 2nd defendant, the Judge said:", "zh-HK": "另外，黃法官在拒絕接納第二被告的答辯之後說：" } }, { "doc_id": 128, "seg_id": 32, "translation": { "en": "The 2nd defendant pleaded that after boarding the boat on the Mainland, he covered his head with clothes immediately so as to brace himself against the blistering cold wind. Upon arrival, he felt fatigued and took a nap, covering his head with a quilt. He said this in order to explain why all along he did not know where he was. Such use of the covering of the head with clothes and quilt as a story line is extremely flagrant and unbearably naïve. I have described the 2nd defendant’s story in a most graphical manner. If nothing other than key points were to be described, the essence of his defence could adequately be conveyed in 10-odd words: ‘I arrived in Hong Kong bewildered and to this day I still do not understand the subtleties in it as if I had got lost in a thick fog’. I am deeply perplexed at what the 2nd defendant said. Your evidence was just like an essay which bore a title but the contents of which were of no substance and could be interpreted in whatever way you liked. But the only conclusion is that, as a piece of evidence, what the 2nd defendant said is simply incredible.", "zh-HK": "‘第二被告從內地登船後，推說馬上以衣服蓋頭，以抵寒風凜冽。到埗後又因疲倦打睏，以被鋪蓋頭，藉此解釋因此一直不知自己身處何方。這些以衣被蓋頭作故事伏線之舉，露骨無比，幼稚難奈，本席已用極其生動形式，描述第二被告之故事，如以大處落墨式的表述方法，可以十數字涵蓋其答辯版本精髓，即「我糊旦糊塗到港，至今還五里霧中，未明箇中奧妙」。本席對第二被告版本，深感虛玄，你的證供，就像替文章起了題目，內容卻空無一物，如何演繹，隨君任意。但從證供角度考慮，唯一結論，是不值一信。’" } }, { "doc_id": 128, "seg_id": 33, "translation": { "en": "He described the various defendants as:", "zh-HK": "他形容各被告人：" } }, { "doc_id": 128, "seg_id": 34, "translation": { "en": "an integral whole with a common purpose, all tarred with the same brush.", "zh-HK": "‘數位一體，目的一致，全是一丘之貉’" } }, { "doc_id": 128, "seg_id": 35, "translation": { "en": "I have been in the legal profession (including private practice and public office) for over 30 years and have read and written innumerable judgments. I have never come across such extreme, derisory and insulting words in judgments prepared by judges in recent times. Such language should not have any place in the advanced and enlightened judicial system of Hong Kong. In my view, the wordings adopted by Deputy Judge Wong in his judgment were inconsistent with the requirement that a judge must conduct a rational analysis of the case before him and were unacceptable. In using such wordings, the Judge would in my view actually give the impression that he had lost his impartiality and fairness.", "zh-HK": "本席從事法律工作三十餘年（包括私人執業及公職），其間閱讀及撰寫過無數判決書。本席從沒有在近代法官所撰寫的判決書中看見過如此偏激、嘲諷及含侮辱成分的用詞。這些言詞是不應該出現於先進及開明的香港司法制度中的。本席認為黃法官在判案書所採用的言詞是不符合法官要以理性分析案情的要求，亦是不可以接受的。本席認為當法官使用這些言詞時確實是會給人一個印象，就是他已失去了不偏不倚和公正的立場。" } }, { "doc_id": 128, "seg_id": 36, "translation": { "en": "Instances of biased conduct of a judge may arise at any stage of a trial. The commonest example is where a judge constantly interrupts the cross-examination of a witness or a defendant or involves himself excessively in cross-examinations, asking questions clearly intended not only to clarify the evidence of a witness or a defendant but to negate the defendant’s defence. Another example is where a judge frequently interrupts counsel’s submissions, which indicates that he does not have any intention to consider those submissions. Apart from these two examples of miscarriage of justice, another valid ground of appeal is that the wordings adopted by a judge in his judgment clearly showed that he was biased against the defendant. An illustration can be found in the case of R. v. Yu Chun Man CACC 435/1993. See also HKSAR v. Pong Tai Chung CACC 467/2006.", "zh-HK": "法官存有偏見的行為是可以在審訊的任何階段中出現的。最常見的例子是法官在証人或被告人接受盤問時不停打斷盤問或者自己過份參予盤問，而他提出的問題的用意明顯不只是澄清証人或被告的証供，而是否定被告的答辯。另一個例子是法官在律師陳詞時多番打斷他的陳詞，顯示他根本沒有意圖去了解律師的陳詞。除了上述的兩個審訊不公的例子外，若果法官在判案書內所採用的言詞明顯顯示他對被告存有偏見，這也可以構成實質的上訴理由，R. v. Yu Chun Man （譯音：女皇訴余振文，CACC 435/1993）是其中一項例子。另見香港特別行政區政府訴龐太宗（CACC 467/2006）。" } }, { "doc_id": 128, "seg_id": 37, "translation": { "en": "Wordings used during the oral delivery of Reasons for Verdict", "zh-HK": "宣讀判決理由時的言詞" } }, { "doc_id": 128, "seg_id": 38, "translation": { "en": "Thirdly, by his attitude and the wordings adopted by him during the delivery of the Reasons for Verdict, Deputy Judge Wong also gave the impression that he was biased against the defendants.", "zh-HK": "第三，黃法官在宣讀判決理由時所採用的言詞及態度亦給人他對被告存有偏見的印象。" } }, { "doc_id": 128, "seg_id": 39, "translation": { "en": "Mr. Kenneth Lee, Counsel for the 1st and 2nd defendants in this appeal, also represented the same two defendants at trial. He discovered that parts of the contents of the written Reasons for Verdict were different from the reasons for verdict delivered orally by the Judge. With the approval of the court, Counsel obtained a transcript of the audio recording of the trial, which revealed that the words spoken by the Judge of the 1st defendant during the verbal delivery were missing from the written Reasons for Verdict. Mr. Lee has rearranged the Reasons for Verdict by reinstating the deleted parts, and Miss Mary Sin for the respondent has accepted the contents of the rearranged Reasons for Verdict. At the hearing, the court also listened to the relevant audio recording of the trial.", "zh-HK": "代表第一及二被告的李冠雄大律師是在原審時代表這兩名被告的代表律師。當他接獲判決理由書時發現部分內容與黃法官在宣讀判決理由時的內容不同。他經法庭批准獲得審訊的錄音記錄。該些錄音記錄顯示黃法官在宣讀判決理由時曾經說出針對第一被告的說話沒有在書面的判決書內出現，李大律師將書面判決理由書重新整理，將被刪去的部分加插回原處。代表答辯人的高級助理刑事檢控專員洗佩霞認同重新整理後的判決理由書內容。本庭亦有即庭聆聽過有關聆訊記錄。" } }, { "doc_id": 128, "seg_id": 40, "translation": { "en": "Deputy Judge Wong dealt with the evidence of the 1st defendant in paragraphs 9 to 22 of the Reasons for Verdict. The Judge had this to say in the following ten paragraphs before or after he made mention of the 1st defendant:", "zh-HK": "判決理由書第 9 至 22 段是黃法官處理第一被告的証供。在以下的十段，當黃法官提到第一被告之前或後都說出這番話 ：" } }, { "doc_id": 128, "seg_id": 41, "translation": { "en": "12.1st defendant, still talking about you, …", "zh-HK": "‘12.第一被告呀，仲係講緊你呀，......" } }, { "doc_id": 128, "seg_id": 42, "translation": { "en": "1st defendant, still about you, …", "zh-HK": "第一被告，仲係你喎，......" } }, { "doc_id": 128, "seg_id": 43, "translation": { "en": "… 1st defendant, oh, still about you, …", "zh-HK": "......第一被告，唉，仲係你喎，......" } }, { "doc_id": 128, "seg_id": 44, "translation": { "en": "Oh, still talking about you, 1st defendant, …", "zh-HK": "唉，仲係講緊你呀，第一被告，......" } }, { "doc_id": 128, "seg_id": 45, "translation": { "en": "Still about you, 1st defendant. Wow, you have wasted quite a lot of the court’s time, alright, … only …", "zh-HK": "仲係你呀，第一被告，嘩，你浪費法庭嘅時間都頗多，好，......咋噃......" } }, { "doc_id": 128, "seg_id": 46, "translation": { "en": "Still talking about 1st defendant, alright, … put them in open quotation mark so that you can listen for yourself: …", "zh-HK": "仲係講緊第一被告，好，......用開引號等你自己聽聽：......" } }, { "doc_id": 128, "seg_id": 47, "translation": { "en": "Still about 1st defendant, …", "zh-HK": "仍然係第一被告，......" } }, { "doc_id": 128, "seg_id": 48, "translation": { "en": "How come it’s still about you? …", "zh-HK": "仲係你嘅？......" } }, { "doc_id": 128, "seg_id": 49, "translation": { "en": "Still about 1st defendant, you see how lengthy your speech has been, …", "zh-HK": "仲係第一被告，你話你當時幾長篇大論，......" } }, { "doc_id": 128, "seg_id": 50, "translation": { "en": "Still you, oh, …", "zh-HK": "仲係你，哦，......’" } }, { "doc_id": 128, "seg_id": 51, "translation": { "en": "That the Judge repeatedly commented that he was still dealing with the 1st defendant’s case showed that he was extremely impatient with the 1st defendant and dissatisfied with his defence. It can be heard from the recording that the Judge made part of the relevant comments in a scornful tone. In my judgment, even if the Judge had already analyzed and summed up the case when he delivered the reasons for verdict, he should not have dealt with a solemn verdict in the manner that he did, which obviously gave the impression that he was biased against the 1st defendant.", "zh-HK": "黃法官多次重複說他仍在處理第一被告的案情，顯示他對第一被告人的態度是極之不耐煩及不滿意他的答辯理由。從錄音記錄中可聽到黃法官在說出部分有關說話時的語氣是極為輕藐的。本席認為即使黃法官在宣讀判決理由書時已經對案情作出了分析及總結，他也不應該以如此的手法去處理一項嚴肅的裁決，這明顯給人一個印象是他對第一被告存有偏見。" } }, { "doc_id": 128, "seg_id": 52, "translation": { "en": "Comments after sentencing", "zh-HK": "量刑後的言論" } }, { "doc_id": 128, "seg_id": 53, "translation": { "en": "Fourthly, after imposing sentences on the defendants, Deputy Judge Wong said to them “Good luck to you”. Such a statement, with its overtones of derision, should not have appeared in solemn court proceedings. The terms of imprisonment meted out to the various defendants, which ranged from 4 years to 4 years and 8 months, were rather substantial. The statement “Good luck to you” in such circumstances reinforced the impression of the Judge being biased against the defendants.", "zh-HK": "第四，黃法官量刑之後向各被告人說「祝你好運」。這句說話帶有嘲諷的意味，這是不應該出現於嚴肅的法律程序中的。各被告所獲的刑期是 4 年至 4 年 8 個月監禁不等，這是頗高的刑罰。黃法官在這情況下對被告人說出「祝你好運」這一句話就更加强了他對各被告人存有偏見的印象。" } }, { "doc_id": 128, "seg_id": 54, "translation": { "en": "Convictions quashed", "zh-HK": "撤銷定罪" } }, { "doc_id": 128, "seg_id": 55, "translation": { "en": "The behaviour of Deputy Judge Wong fell short of the requirement that a judge must conduct the trial of a case before him in a solemn manner. In the present case, there was the danger that the Judge’s conduct had actually influenced his decision, as a result of which the defendants had been deprived of their right to a fair trial. For the above reasons and in the interests of justice, all the convictions of the defendants must be quashed. As the biased conduct of the Judge had a direct impact on the safeness of his verdict, we do not consider it appropriate to uphold the convictions by applying the proviso. All the convictions are quashed accordingly.", "zh-HK": "黃法官的表現是不符合法官必須以嚴肅的態度來處理審訊的要求。在本案黃法官的行為存有實質影響裁決的危險，令被告喪失公平審訊的權利。基於上述原因，本庭必須撤銷所有的定罪以示公正。由於黃法官的偏見表現直接影響了裁決的穩妥性，所以本庭認為不可以引用「但書」來維持定罪，因此撤銷所有定罪。" } }, { "doc_id": 128, "seg_id": 56, "translation": { "en": "Order for retrial", "zh-HK": "重審命令" } }, { "doc_id": 128, "seg_id": 57, "translation": { "en": "The appellants’ appeals are allowed not because of insufficient prosecution evidence but because of the improper conduct of the trial by the Judge. We therefore order, upon application by the prosecution, that the cases against the 1st and 2nd defendants be retried, with such retrial to take place promptly. In the absence of an application by the prosecution, we make no order for retrial in respect of the 4th defendant.", "zh-HK": "上訴人上訴得直，理由並非是控方証據不足，而是黃法官處理案件不妥當，因此本庭根據控方的申請命令第一及第二被告需要接受重審及重審須盡快進行。由於控方沒有提出第四被告需要接受重審的要求，因此本庭不對第四被告作出重審命令。" } }, { "doc_id": 128, "seg_id": 58, "translation": { "en": "Judgment of the two Judges", "zh-HK": "兩位法官的判決" } }, { "doc_id": 128, "seg_id": 59, "translation": { "en": "Furthermore, I concur with the reasons for judgment of Yeung JA and Yuen JA.", "zh-HK": "另外，本席同意楊振權法官及袁家寧法官的判決理由。" } }, { "doc_id": 128, "seg_id": 60, "translation": { "en": "Hon Yeung JA:", "zh-HK": "上訴法庭法官楊振權：" } }, { "doc_id": 128, "seg_id": 61, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 128, "seg_id": 62, "translation": { "en": "There were originally five defendants in the present case. They were Chan Wah (“D1”), Cheung Yan Yau (“D2”), Liu Hin Ko, Ko Kwan (“D4”) and Chan Lo Ba. They are hereinafter collectively referred to as the defendants whereas D1, D2 and D4 are referred to as the applicants.", "zh-HK": "本案原涉及五名被告人，包括陳華（“D1”）、張仁有（“D2”）、廖顯高、高軍（“D4”）及陳老八。以下統稱他們為被告人而D1，D2及D4為申請人。" } }, { "doc_id": 128, "seg_id": 63, "translation": { "en": "At about 3:30 a.m. on 23 November 2005, a team of police officers intercepted and arrested the defendants in a bush on the beach of Nam She Wan during an anti-illegal immigrants operation. The police found at the same time ten uprooted “Buddhist pines”, one long handsaw, two cotton quilts, a backpack, some clothes and some other equipment. Further out on the beach a blue motorised sampan was seen which contained two life jackets and one and a half barrels of petrol.", "zh-HK": "2005年11月23日，凌晨約3時30分，一警隊在執行反非法入境者行動時，在蚺蛇灣沙灘一處草叢截獲及拘捕被告人。警員同時發現十棵遭連根拔起的“羅漢松”、一把長手鋸、兩張棉被、一個背囊、一些衣物和一些其他用具。現場對出的沙灘上更有一艘藍色機動舢舨，內載有兩件救生衣及一桶半電油。" } }, { "doc_id": 128, "seg_id": 64, "translation": { "en": "The defendants were Mainland residents and, at the time of their arrest, neither held any valid travel document nor had the authority to remain in Hong Kong.", "zh-HK": "被告人都是國內居民，被捕時, 他們不持有任何有效旅遊證件，亦未獲授權留在香港。" } }, { "doc_id": 128, "seg_id": 65, "translation": { "en": "Eventually the defendants were arrested and charged jointly with conspiracy to steal (the first charge), an alternative charge of handling stolen goods (the second charge), and felling plants in country parks without a permit (the third charge). They were also each charged with one count of remaining in Hong Kong without the authority of the Director of Immigration.", "zh-HK": "結果被告人被拘捕及共同被控第一項串謀偷竊，第二項處理贓物的交替控罪及第三項無許可在郊野公園內砍伐植物罪。他們每人亦分別被控一項未得入境事務處處長授權而留在香港罪。" } }, { "doc_id": 128, "seg_id": 66, "translation": { "en": "D1 and D2 denied all the charges whereas D4 denied the first, second and third charges but admitted the charge of unlawfully remaining in Hong Kong. Liu Hin Ko and Chan Lo Ba admitted the first charge of conspiracy to steal, the third charge of illegally felling plants and the charge of unlawfully remaining in Hong Kong. After trial, D1 and D2 were found guilty of the first and third charges and also the charge of unlawfully remaining in Hong Kong. D4 was convicted of the first and third charges. The second charge, being an alternative charge, was not dealt with.", "zh-HK": "D1和D2否認全部控罪，D4則否認第一、第二和第三項控罪，但承認非法留港罪。廖顯高及陳老八承認第一項串謀偷竊，第三項非法砍伐罪和非法留港罪。經審訊後，D1和D2被裁定第一、三及非法留港罪罪名全部成立，D4亦被裁定第一和第三項罪名成立，由於第二項控罪是交替性控罪，故無需另行處理。" } }, { "doc_id": 128, "seg_id": 67, "translation": { "en": "D1, D2 and D4 were each sentenced to imprisonment for 2 years and 9 months for the first charge and 6 weeks for the third charge, with the sentences to run concurrently.", "zh-HK": "就第一、第三項控罪，D1、D2及D4分別被判入獄兩年9個月和六星期監禁，同期執行。" } }, { "doc_id": 128, "seg_id": 68, "translation": { "en": "For the offence of unlawfully remaining in Hong Kong, D1 and D2 were sentenced to imprisonment for 23 months, which was to run consecutively to the sentences on the first and third charges, making a total term of 4 years and 8 months.", "zh-HK": "就非法留港罪，D1及D2被判入獄23個月，和第一、第三項控罪刑期分期執行。他們需服之總刑期為4年8個月。" } }, { "doc_id": 128, "seg_id": 69, "translation": { "en": "D4 was sentenced to imprisonment for 15 months for the charge of unlawfully remaining in Hong Kong to which he had pleaded guilty, but the sentence was to run consecutively to the sentences on the first and third charges, making a total term of 4 years.", "zh-HK": "D4承認非法留港罪被判監15個月，但和第一、第三項控罪刑期分期執行，他的總刑期為4年。" } }, { "doc_id": 128, "seg_id": 70, "translation": { "en": "D1 applied for leave to appeal against conviction, D2 applied for leave to appeal against conviction and sentence, and D4 applied for leave to appeal against conviction on the first and third charges.", "zh-HK": "D1不服定罪，D2不服定罪及判刑，而D4則不服第一、三項的定罪。申請人申請上訴許可，要求本庭批准他們就有關定罪或判刑上訴。" } }, { "doc_id": 128, "seg_id": 71, "translation": { "en": "After hearing, we granted leave to appeal and, treating the hearing as the appeal, we allowed the applicants’ appeal against convictions which were quashed accordingly. We ordered a retrial in respect of D1 and D2. We acquitted D4, in respect of whom the prosecution had not applied for a retrial. We now set out our reasons for the decisions.", "zh-HK": "經審訊後，本庭批准申請人的上訴許可申請，並視之為正式上訴，本庭判他們針對定罪的上訴得直及將他們的定罪撤銷。本庭下令D1及D2須接受重審。控方沒有申請重審D4，因此D4獲釋。以下是本庭的裁決理由。" } }, { "doc_id": 128, "seg_id": 72, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 128, "seg_id": 73, "translation": { "en": "Apart from the undisputed background facts, the prosecution and defence agreed that Buddhist pines were planted in the area where the defendants were arrested, namely Sai Kung Country Park. The prosecution also adduced as evidence the confessions that some of the applicants had made to the police on the course of events.", "zh-HK": "除了不受爭議的背景事實外，雙方同意拘捕被告人的現場，即西貢效野公園範圍種有羅漢松，控方亦提交部份申請人向警員供述事發經過的招認為證。" } }, { "doc_id": 128, "seg_id": 74, "translation": { "en": "The prosecution alleged that D1 confessed to the police upon arrest that he had been hired to come to Hong Kong to fell trees illegally.", "zh-HK": "根據控方指稱，在現場被捕時，D1向警員招認是受僱來港非法砍樹。" } }, { "doc_id": 128, "seg_id": 75, "translation": { "en": "Subsequently, D1 voluntarily participated in two video-recorded interviews with the police at the police station. D1 said that when he was working at a pier in Nanao, he came to know one Mr. Lau, who deceived him into coming to Hong Kong. That Mr. Lau claimed to D1 that he would call people together to come to Hong Kong to perform construction work and earn daily wages of $150 to $200. Eventually, D1 and four other people were brought to Hong Kong by boat as arranged by Mr. Lau on 17 November 2005.", "zh-HK": "其後，D1在警署向警員自願提供兩份錄影會面記錄。D1指自己在南澳碼頭工作時，認識一劉先生後，被他騙來香港。該名劉先生向D1聲稱會召集人等來港從事建築行業，賺取工資每天150至200元。結果在2005年11月17日劉先生將D1和另外4人一起用船載來香港。" } }, { "doc_id": 128, "seg_id": 76, "translation": { "en": "After the group went ashore, Mr. Lau led the rest of the group to a plastic tent by the hillside. According to Mr. Lau, they had to hide by the hillside because the situation was unfavourable. In the meantime, they found people felling trees and some people being arrested by the police. D1 said he had asked Mr. Lau to lead him away but Mr. Lau refused.", "zh-HK": "上岸後，劉先生將他們帶往山邊一個塑膠蓬。根據劉先生聲稱因當時風聲緊，他們要匿藏在山邊。期間，他們發現有人砍伐樹木，亦發現有警員拘捕他人。D1指曾要求劉先生帶他離開，但遭劉先生拒絕。" } }, { "doc_id": 128, "seg_id": 77, "translation": { "en": "D1 said he had not seen the Buddhist pines found by the police. He also denied that he had been instigated to come to Hong Kong to fell Buddhist pines. He said that neither he nor the other defendants had ever felled Buddhist pines, and that he had not confessed to the police at the time of his arrest that he had been hired to come to Hong Kong to hack trees.", "zh-HK": "D1指沒有見過警員搜到的羅漢松，亦否認有人指使他來香港砍伐羅漢松。D1表示他和其他被告人都沒有砍伐過羅漢松，而在被捕時，他亦沒有向警員作出過任何招認，說是受僱來港斬樹。" } }, { "doc_id": 128, "seg_id": 78, "translation": { "en": "D1 said that, prior to his arrest, Mr. Lau had neither referred or assigned any work to the defendants nor paid them any wages.", "zh-HK": "D1指被拘捕前，劉先生沒有介紹或分配工作，亦沒有支付任何工資給他們。" } }, { "doc_id": 128, "seg_id": 79, "translation": { "en": "D1 stated that he had not applied for any document for coming to Hong Kong, but Mr. Lau had told him that they could travel freely between the Mainland and Hong Kong as China had resumed sovereignty over Hong Kong. Mr. Lau managed to escape the arrest, and among the people arrested, D1 only knew Chan Lo Ba.", "zh-HK": "D1表示沒有申請任何來港證件，但劉先生向他表示香港已回歸中國，他們可以自由往來中港兩地。事後劉先生逃離，而和他一起被捕的人士中，他只認識陳老八。" } }, { "doc_id": 128, "seg_id": 80, "translation": { "en": "At the other video-recorded interview, D1 said Mr. Lau had stayed with them since they arrived at the scene on 17 November 2005. Although Mr. Lau had left them temporarily, this was for the purpose of checking if any boat had arrived as he expected that some other people would arrive at the scene. D1 reiterated that Mr. Lau had never asked them to hack or remove trees, nor had they seen anyone hack trees.", "zh-HK": "在另一份錄影會面記錄，D1指劉先生和他們在2005年11月17日抵達現場後，一直和他們一起。雖然劉先生曾短暫離開，目的亦只是查看是否有船到達，因為他期望會有其他人士抵達現場。D1重申劉先生沒有叫過他們斬樹或搬樹，而他們亦沒有看到有人斬樹。" } }, { "doc_id": 128, "seg_id": 81, "translation": { "en": "D1 said that he did not write down “never said [I] helped the boss hack trees” when the police constable read over the caution administered at the scene to him because he was not allowed to do so by the constable.", "zh-HK": "D1指當警員把現場警誡詞複讀給他聽時，他沒有寫下“沒有說過幫老闆斬樹”, 原因是警員不容許他這樣做。" } }, { "doc_id": 128, "seg_id": 82, "translation": { "en": "D1 also said that the camouflage he was wearing at the time was provided by Mr. Lau who had asked them to wear it.", "zh-HK": "D1亦指身上所穿著的迷彩衣物是劉先生供應及要他們穿著的。" } }, { "doc_id": 128, "seg_id": 83, "translation": { "en": "D2 tried to flee during the arrest. After arrest and under caution, D2 also admitted illegal entry into Hong Kong but denied stealing Buddhist pines. He said that the night before his arrest he arrived at the scene with Liu Hin Ko and Ko Kwan by a small boat from Nanao, but that they had neither felled the Buddhist pines found at the scene by the police nor had intended to steal those Buddhist pines.", "zh-HK": "D2被捕時曾試圖逃跑。被捕後及在警誡下，D2亦曾承認非法入境，但否認有盜取羅漢松。D2表示在被捕前一晚和廖顯高和高軍坐小船由南澳抵達現場，但放置在現場及被警員搜獲的羅漢松並非他們所砍伐得來的，而他們亦沒有意圖盜取該批羅漢松。" } }, { "doc_id": 128, "seg_id": 84, "translation": { "en": "Later in the video-recorded interview, D2 gave an account of why and how he came to Hong Kong. He said he got on a boat on the night of 22 November 2003 and unknowingly came to Hong Kong. He said a ganger had approached him about doing construction work abroad and as a result, he, Liu Hin Ko and Ko Kwan left Nanao by boat, but shortly after arrival at the scene, they were all arrested. D2 said he neither knew that some people had sawn Buddhist pines nor was aware that he had entered Hong Kong illegally.", "zh-HK": "其後在錄影會面時，D2向警員交待來港的目的及過程。D2表示在2003年11月22日晚上坐船，在不知情下來到香港。他表示有一工頭找他出外打工，從事建築工作，結果他和廖顯高和高軍坐船離開南澳，但抵達現場不久就一起被拘捕。D2表示不知有人鋸下羅漢松，亦不知自己非法進入了香港。" } }, { "doc_id": 128, "seg_id": 85, "translation": { "en": "D4 said at the video-recorded interview that he had been working in the construction industry in Nanao. He said that, 8 days before his arrest, someone recommended him to a job in the construction industry which offered a daily wage of $60 as well as food and accommodation. Later, he was taken on board a boat and was told that he would be coming to Hong Kong to work for 10-odd days. Liu Hin Ko and D2 also travelled on the boat with him and they arrived in Hong Kong after a journey lasting an hour or so. The man who steered the boat told them to find a place to sleep and then left the scene. They were arrested by the police shortly afterwards.", "zh-HK": "D4在錄影會面時表示，自己在南澳打工，從事建築行業。他表示被捕前8天，有人說介紹他去從事建築工作，日薪60元，包食宿。其後，他被人帶上船，說會前來香港工作10多天。當時，廖顯高和D2亦和他一起坐船個多小時來港。駕駛小船的人在離開前，曾囑咐他們先找地方睡覺，但結果不久他們就被警員拘捕。" } }, { "doc_id": 128, "seg_id": 86, "translation": { "en": "D4 said that, prior to his arrest, he was merely sleeping with some 10 people and did not notice any Buddhist pine or other equipment. D4 also said he neither knew D1 and Chan Lo Ba nor saw anyone felling trees. However, he did admit that he had come to Hong Kong without the permission of either the Mainland or Hong Kong authorities.", "zh-HK": "D4表示被拘捕前，不察覺有羅漢松，亦看不到其他工具，他只是和10多名人士一起睡覺。D4亦表示不認識D1或陳老八，亦看不到有人去鋸樹。但D4承認是在未得中國或香港有關當局批准而來到香港的。" } }, { "doc_id": 128, "seg_id": 87, "translation": { "en": "The defence case", "zh-HK": "辯方案情" } }, { "doc_id": 128, "seg_id": 88, "translation": { "en": "D1 and D2 gave evidence for their defence but did not call any witness. D4 elected not to give evidence or call any witness.", "zh-HK": "D1及D2有作供自辯，但沒有傳召證人。D4則選擇不作供，亦沒有傳召證人。" } }, { "doc_id": 128, "seg_id": 89, "translation": { "en": "D1 denied that he had admitted to the police that he had been hired to come to Hong Kong to fell trees. He said that there was a communication barrier between the police constable who did not speak Putonghua and D1 himself who did not speak Cantonese. D1 further said that the police constable had not cautioned him and therefore, even if he had made a confession, it should not have been admitted as evidence.", "zh-HK": "D1否認曾向警員承認受僱來港砍樹。他表示警員不懂普通話，自己則不懂廣東話，故溝通上有障礙。D1更指警員沒有警誡他，故即使他有作過招認，招認都不應呈堂為證。" } }, { "doc_id": 128, "seg_id": 90, "translation": { "en": "D1 reiterated in his testimony that he came to know Mr. Lau while he was working at a pier in Nanao and that, at Mr. Lau’s invitation, he worked in the construction industry at the Mainland-Hong Kong border at a daily wage of $60 dollars with food and accommodation provided.", "zh-HK": "D1作供時重申在南澳碼頭工作時認識劉先生，並應他的邀請到中港邊境從事建築工作，工資每天60元，包食宿。" } }, { "doc_id": 128, "seg_id": 91, "translation": { "en": "D1 claimed that he, Mr. Lau and others got on board a fishing boat on the night of 17 November 2005 and went ashore when the boat arrived at a beach. The boat then left and they went up the hill and lodged in a makeshift tent.", "zh-HK": "D1指稱在2005年11月17日晚和劉先生及其他人士乘坐漁船到達一沙灘後登岸。其後漁船離閧，他們則往山上走，並在一臨時搭建的棚蓬棲宿。" } }, { "doc_id": 128, "seg_id": 92, "translation": { "en": "D1 said that he did not get any job after waiting for two days and that they were even driven by Mr. Lau to hide in the gully so as to avoid the police. D1 said he felt he had been cheated but was unable to think of a way out, and subsequently he was arrested by the police.", "zh-HK": "D1說經等候兩天都沒有工作，更遭劉先生驅趕他們往山溝躲藏以避開警員的搜查。D1說，感到受騙，但無計可施，其後更被警員拘捕。" } }, { "doc_id": 128, "seg_id": 93, "translation": { "en": "D1 stressed that he did not notice at the time of his arrest that there were Buddhist pines in the vicinity, and that he did not see Buddhist pines at the scene until after daybreak.", "zh-HK": "D1強調被捕時，沒有發現附近有羅漢松，他是在天亮後，才看到擺放在現場的羅漢松。" } }, { "doc_id": 128, "seg_id": 94, "translation": { "en": "D1 denied conspiring to steal or having felled trees. He also denied having made any confession to the police.", "zh-HK": "D1否認有串謀偷竊，亦否認曾有砍伐過樹木。他更否認有向警員作過任何招認。" } }, { "doc_id": 128, "seg_id": 95, "translation": { "en": "D2 said he came to know a boss whilst working in Nanao and promised the boss that he would go to a certain place to do construction work. D2 said that on the night of 22 November 2005, having travelled on a boat and gone ashore in the dark on a beach, he went up a hill. Later, he tripped over someone in the dark and randomly found a spot to sleep. He said he was fast asleep when the police arrested him. He stressed that he did not come to Hong Kong on purpose and denied conspiring with others to fell trees, steal or handle in any manner the Buddhist pines found at the scene.", "zh-HK": "D2指在南澳工作時認識一名老闆，並答應該老闆到某地從事建築工作。D2稱在2005年11月22日晚上乘船隻在一沙灘摸黑登岸後，再往山上走。後來在黑暗中被人絆倒後，隨便找了一個位置睡覺。D2表示自己是在熟睡時遭警方拘捕。D2強調自己並非故意來港，更否認有和他人串謀砍木，偷竊或以任何方法處理現場搜獲的羅漢松。" } }, { "doc_id": 128, "seg_id": 96, "translation": { "en": "Findings of the trial judge", "zh-HK": "原審法官的裁定" } }, { "doc_id": 128, "seg_id": 97, "translation": { "en": "The trial judge accepted the evidence of the police constables including the evidence of the confession that they said D1 had made. The trial judge rejected the evidence of D1 and D2.", "zh-HK": "原審法官接納警員的證供，包括他們指D1曾作出的招認的證供。原審法官否定D1及D2的證言。" } }, { "doc_id": 128, "seg_id": 98, "translation": { "en": "The trial judge emphasized that the place where the defendants were arrested was remote and seldom trodden, and that the arrest took place in the small hours. Apart from quilts, clothes, daily necessities and a handsaw, a motorized sampan was found resting on the beach nearby at that time. Furthermore, 10 uprooted Buddhist pines were found lying around the area where the defendants slept.", "zh-HK": "原審法官強調拘捕各被告人的地點偏僻，人跡罕至而時間更是在凌晨時份。當時除了被鋪、衣物、日用品和一手鋸外，更有一艘機動舢舨擱置在附近沙灘，而在各被告人睡覺的地方四週，更有十棵遭連根拔起的羅漢松。" } }, { "doc_id": 128, "seg_id": 99, "translation": { "en": "The trial judge ruled that a reasonable and irresistible inference was that the Buddhist pines were felled from the nearby country park. He stressed that it was unrealistic to suggest that the Buddhist pines had been felled in some other place and then moved to Sai Kung Country Park where they were to be re-transported.", "zh-HK": "原審法官裁定合理而不可抗拒的推論是羅漢松是在附近郊野公園砍伐而來的。原審法官強調在其他地方砍伐羅漢松及將它們運往西貢郊野公園再轉運至其他地方的說法是不切實際的。" } }, { "doc_id": 128, "seg_id": 100, "translation": { "en": "In rejecting the evidence of D1 and D2, the trial judge commented on their evidence in the following unusual language. Examples of such comments are: “What he said about spirits [is] weird and benighted”, “It is astonishing to see such rascally and unruly behaviour in the court”, “every word and every sentence … were false and fallacious”, “astonishing utterances”, and “extremely flagrant and unbearably naïve”, etc. In delivering his oral verdict, the judge also on numerous occasions spoke of the applicants in words that could be regarded as contemptuous. They included “I tell you there is order in the court proceedings. By order, I mean orderly. You need not yell or shout. It is the court which is now addressing to you, please listen carefully.”, “Defendant, would you, 1st defendant, please stand properly, do not wander your eyes here and there”, “1st defendant, still talking about you”, “1st defendant, still about you”, “1st defendant, oh, still about you”, “Oh, still talking about you, 1st defendant”, “Still about you, 1st defendant. Wow, you have wasted quite a lot of the court’s time, alright.”, “Still talking about 1st defendant, alright”, “put them in open quotation mark so that you can listen for yourself.”, “Still about 1st defendant,”, “How come it’s still about you”, “Still about 1st defendant, you see how lengthy your speech has been”, “Still you, oh”.", "zh-HK": "原審法官否定D1及D2的證言時，曾對他們的證言，用下列不尋常的措辭作出，評論例如：“靈魂之說、怪誕愚昧”、“無賴撒野之情，竟現法庭”、“字字虛言，句句妄語”、“語出驚人”及“露骨無比，幼稚難奈”等。在其口頭判決，原審法官亦曾多次對申請人作出一些可被視為輕蔑的言詞，包括“我告訴你們，法庭審訊有序，秩序嘅序，你哋不用大呼小叫，現在係法庭講說話，請小心聆聽吁。”，“被告請你，第一被告，請你企得好啲，不要眈天望地”，“第一被告呀，仲係講緊你呀”，“第一被告，仲係你喎”，“第一被告，唉，仲係你喎”，“唉，仲係講緊你呀，第一被告，“仲係你呀，第一被告，嘩，你浪費法庭嘅時間都頗多，好。”，“仲係講緊第一被告，好”，“用開引號等你自己聽聽。”，“仍然係第一被告，”，“仲係你嘅”，“仲係第一被告、你話你當時幾長篇大論”，“仲係你，哦”，" } }, { "doc_id": 128, "seg_id": 101, "translation": { "en": "The audio recording of the trial, which we listened to during the hearing of the appeal, shows that the trial judge adopted such an arrogant attitude in delivering the judgment that the listener was made to feel that the judge professed an extreme contempt for the defendants’ evidence.", "zh-HK": "本庭在聆訊時，曾聆聽過原審時的錄音記錄，該些錄音記錄顯示原審法官宣讀判案書時，態度傲慢，令聆聽者覺得原審法官對被告人的證言極度蔑視。" } }, { "doc_id": 128, "seg_id": 102, "translation": { "en": "When counsel for D4 indicated to the court that D4 elected not to give evidence for his defence, the trial judge commented that the decision was “smart”.", "zh-HK": "當代表D4的大律師表示D4不作供自辯時，原審法官更表示該決定“聰明”。" } }, { "doc_id": 128, "seg_id": 103, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 128, "seg_id": 104, "translation": { "en": "Regarding the convictions on the first and third charges, Mr. Lee, counsel for D1 and D2, and Mr. Cheng, counsel for D4, put forward similar grounds of appeal. They both argued that the prosecution’s evidence was insufficient to give rise to an irresistible inference that the Buddhist pines in question were felled from a place near the scene of the offence.", "zh-HK": "就第一及第三項定罪，代表D1及D2的李冠雄大律師和代表D4的鄭從展大律師提出類同的上訴理由。他們都指控方的證供不足以導致無可抗拒的推論，指涉案的羅漢松是在案發現場附近被砍伐而來的。" } }, { "doc_id": 128, "seg_id": 105, "translation": { "en": "Mr. Lee contended strongly that it was not an offence to possess felled trees in a country park and that the prosecution bore the burden of proving that the trees concerned had actually been felled from the park.", "zh-HK": "李大律師力稱在郊野園管有被砍伐的樹木並不構成罪行而控方必須證明有關樹木的確是在公園砍伐而來的。" } }, { "doc_id": 128, "seg_id": 106, "translation": { "en": "Mr. Lee pointed out that, as the Buddhist pines in question had been felled about one week before the alleged offence took place, they might not have been felled at the scene. He suggested that the said Buddhist pines might have been felled at some other place and then moved to the scene to be gathered together pending their removal by sea.", "zh-HK": "李大律師指出涉案的羅漢松在案發時已被砍伐了約一周，故不一定是在現場砍伐而來。李大律師指涉案的羅漢松可能是在其他地方遭砍伐後搬往現場集中在一起，等候從水路運走。" } }, { "doc_id": 128, "seg_id": 107, "translation": { "en": "Mr. Cheng also stressed that the scene of the alleged offence, being close to Shenzhen and Nanao, was an attractive stopover point where illegal immigrants could make short stays when travelling between Hong Kong and Shenzhen.", "zh-HK": "鄭大律師亦強調案發地點近深圳及南澳，因此是偷渡人士落腳的地點，吸引他們在往返香港和深圳途中，作短暫逗留。" } }, { "doc_id": 128, "seg_id": 108, "translation": { "en": "Mr. Cheng argued strongly that the location of the alleged offence, the time of the defendants’ arrest or the outfit seized had no significant relevance to the accusation that the defendants had stealthily felled Buddhist pines.", "zh-HK": "鄭大律師力稱案發地點，拘捕被告人的時間和搜獲的裝備都和他們偷砍伐羅漢松的指控沒有重大關連。" } }, { "doc_id": 128, "seg_id": 109, "translation": { "en": "Mr. Cheng further submitted that the ten Buddhist pines, of which the branches were “sawn off”, did not necessarily have a market or commercial value and might have merely been intended to be used by illegal immigrants for making a fire.", "zh-HK": "鄭大律師更指“被鋸掉”枝幹的10棵羅漢松不一定具市場或商業價值，它們可能只是非法入境者用作生火之用。" } }, { "doc_id": 128, "seg_id": 110, "translation": { "en": "Mr. Cheng stressed that there were doubts in the present case, including the fact that the Buddhist pines had been felled some 7 days prior to the alleged offence and that no tools for uprooting or cutting Buddhist pines were found at the scene. Furthermore, the location at which the defendants were arrested, the exact position of the Buddhist pines and whether they were piled up together were all open to doubt.", "zh-HK": "鄭大律師強調案件有值得懷疑之處，包括涉案羅漢松已被砍下近7天，現場則沒有任何挖掘或切割羅漢松的工具，而被告人被捕時的位置及羅漢松是否堆放在一起及其正確位置均有疑問。" } }, { "doc_id": 128, "seg_id": 111, "translation": { "en": "Mr. Cheng also submitted that the trial judge had simply rejected the explanation given by D4 in the video-recorded interview without properly considering such explanation.", "zh-HK": "鄭大律師亦指原審法官沒有適當地考慮D4在錄影會面的解釋而強行否定他的解釋。" } }, { "doc_id": 128, "seg_id": 112, "translation": { "en": "As regards the confession made by D1, Mr. Lee pointed out that D1 could not possibly have understood the nature of the caution which was administered to him in Cantonese. Therefore, even if there had been communication between D1 and the police constable, it was by no means certain that they had correctly understood what each other said.", "zh-HK": "就D1曾作的招認，李大律師指出有關警員以廣東話警誡D1，而D1不可能理解警誡的性質。因此，即使兩人互有溝通，亦不能確保雙方能正確無誤地理解大家的說話。" } }, { "doc_id": 128, "seg_id": 113, "translation": { "en": "In such circumstances, Mr. Lee argued, the trial judge should not have relied on the confession allegedly made by D1.", "zh-HK": "李大律師認為在該情況下，原審法官實不應依賴D1被指曾作過的招認。" } }, { "doc_id": 128, "seg_id": 114, "translation": { "en": "Mr. Lee maintained that the wordings used by the judge in the course of trial indicated that he was biased against the defendants and made findings of facts prematurely, without dealing with factual discrepancies objectively.", "zh-HK": "李大律師力稱原審法官在處理案件時的用詞顯示他對被告人有偏見及對事實過早作出判斷，而沒有客觀地處理案情的分歧。" } }, { "doc_id": 128, "seg_id": 115, "translation": { "en": "Mr. Lee pointed out in particular that, when D4 indicated to the court that he would not give evidence, the trial judge commented that he was “smart”. This showed that the judge thought the decision of D1 and D2 to elect to give evidence was unwise, and that the judge had already ruled against them on the facts before hearing submissions from both sides. Mr. Lee insisted that both the attitude of the judge and the manner in which he dealt with the case were improper and unfair to the applicants.", "zh-HK": "李大律師特別指出當D4向法庭表示會保持緘默時，原審法官作出“聰明”的評語，顯示他認為D1及D2選擇作供屬愚蠢的決定，更顯示原審法官在沒有聆聽雙方陳述前，已就事實作出對他們不利的決定。李大律師力陳原審法官處理案件的態度及方法不恰當，對申請人不公平。" } }, { "doc_id": 128, "seg_id": 116, "translation": { "en": "Mr. Lee also submitted that when the judge commented on the evidence of D1 and D2, he used words that were not only strong but also distinctly complimentary or otherwise, so that one would strongly feel that justice had not been seen to be done. Mr. Cheng concurred with Mr. Lee’s position and arguments.", "zh-HK": "李大律師亦指原審法官批評D1及D2證言時，不但措辭強烈，更褒貶分明，令人深覺執行公義，未能彰顯。鄭大律師認同李大律師的立場及論據。" } }, { "doc_id": 128, "seg_id": 117, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 128, "seg_id": 118, "translation": { "en": "There was no direct evidence in the present case to prove that the applicants had actually felled Buddhist pines or conspired to steal Buddhist pines. The issues in the present case were simple and straightforward: whether the defendants’ explanations were credible and whether the prosecution evidence was capable of buttressing the irresistible inference that the defendants had actually felled the Buddhist pines with a view to conspiring to steal them. On the charge against D1 and D2 of illegal remaining in Hong Kong, the issue was whether they knew they would enter Hong Kong illegally.", "zh-HK": "本案沒有直接證據證明申請人確有砍伐羅漢松或串謀盜取羅漢松。案件要解決的議題簡單直接，是被告人的解釋是否合信及控方的證據能否導致不可抗拒的推論，證明他們確有砍伐羅漢松，目的是串謀盜取該批羅漢松。以D1及D2面對的非法留港罪，要解決的議題是他們是否知悉會非法進入香港。" } }, { "doc_id": 128, "seg_id": 119, "translation": { "en": "As we order that the cases against D1 and D2 be retried, it is not appropriate for us to comment on the strength or otherwise of the prosecution evidence or the credibility of the explanations offered by D1 and D2 lest such comments should influence the judgment to be made at the retrial. We only have to point out that, looking at the evidence as a whole, it is possible for D1 and D2 to be convicted of all the charges.", "zh-HK": "由於本庭下令D1及D2需接受重審，因此不適宜就控方證據的強弱及D1及D2的解釋是否合信，作出評論，以免影響重審時的判決。本庭只需指出以整體證據而言，就全部控罪，D1及D2都有機會被裁定罪名成立。" } }, { "doc_id": 128, "seg_id": 120, "translation": { "en": "We shall only focus on considering the manner in which the judge had conducted the trial, in particular whether the wordings adopted by the judge were appropriate and whether they would cause a reasonable bystander to think that the judge had failed to conduct the trial in a fair and impartial manner.", "zh-HK": "本庭只會集中處理原審法官處理案件審訊的過程，特別是其採納的用詞是否恰當，會否導致一名合理的旁觀者認為原審法官未能公正持平地審理案件。" } }, { "doc_id": 128, "seg_id": 121, "translation": { "en": "Hearing cases is an extremely important and solemn task that a judge undertakes because his decision will put the liberty of the person being tried at stake. A judge must be discreet in word and deed in the course of hearing and determining a case. Not the slightest impropriety or ambiguity is allowed. We wish to reiterate the oft-cited principle that justice must not only be done but the administration of justice must also be seen to be done, otherwise the public will lose confidence in our system of justice.", "zh-HK": "審理案件是法官需履行而極為重要及嚴肅的任務，原因是法官的判決會影響受審者的人身自由。法官在審訊及判決過程，都必須謹言慎行，不得有任何不妥或含糊之處。雖然是老生常談，本庭亦要重申，公義不但必須履行，執行公義的過程，更必須彰顯於人前，否則不能服眾。" } }, { "doc_id": 128, "seg_id": 122, "translation": { "en": "A defendant at trial is entitled to respond to the prosecution’s allegations in whatever way he thinks fit. No matter what the substance of his response and the manner of expressing the response are, the trial judge is duty-bound to make a detailed analysis of the response before making an appropriate decision. The trial judge should not make deprecatory and contemptuous comments simply because the defendant’s defence is incredible and, all the more, should not make rash judgments before hearing submissions from the prosecution and the defence. Otherwise, the defendant or a reasonable bystander may not be convinced that the judge has heard the case in a fair and impartial manner and may even think that the decision of the judge is unfair and unreasonable.", "zh-HK": "一名被告人受審時，有權就控方的指控，作出其認為合適的回應。不論其回應的內容及表達方式的性質如何，主審法官都有責任仔細分析才作出適當的裁決。主審法官不應因為被告人自辯的說法不合信，而作出輕挑蔑視的評論，更不應在未聆聽過控辯雙方的陳述前，妄下判語。否則被告人或合理的旁觀者都可能不會信服法官有公正持平地審理案件，更可能令他們認為法官的判決不公平，不合理。" } }, { "doc_id": 128, "seg_id": 123, "translation": { "en": "The trial judge is of course entitled, after carefully evaluating the defendant’s evidence, to reject such evidence and state or explain his decision in resolute and unequivocal language. However, in delivering his decision, the judge must be discreet in the choice of words, which should not be deprecating, contemptuous or insulting.", "zh-HK": "當然，經小心評估證據後，主審法官有權否定被告人的證言，並以果斷、明確的措辭陳述或說明其裁決。但裁決時，主審法官措辭必須謹慎，不應輕挑蔑視，更不能帶侮辱性。" } }, { "doc_id": 128, "seg_id": 124, "translation": { "en": "As this Court pointed out in HKSAR v. Pong Tai Chung CACC 467/2006:", "zh-HK": "誠如本庭在香港特別行政區 訴 龐太宗CACC 467/2006案指出：" } }, { "doc_id": 128, "seg_id": 125, "translation": { "en": "It is most obvious that a judge should conduct a trial in an impartial and composed manner, making decisions based on legal principles and rational analysis. If a judge chooses to use emotive language in the Reasons for Verdict, such as to describe the defendant as ‘neither a human being nor a ghost’, then the defendant (or any other reader) would inevitably be given an impression that the judge has failed to act in a professional manner that one would have expected him to act.", "zh-HK": "“法官審案時是應該採取持平鎮靜的態度主持審訊，憑着法律原則及理性的分析作出裁決。這是明顯不過的。若法官在裁決理由書中採用感性化的措詞，如以“非人非鬼”來描述被告人，則難免令被告人（或其他讀者）得到一個印象，是法官已失去了他應持有的專業態度”。" } }, { "doc_id": 128, "seg_id": 126, "translation": { "en": "We must also emphasize that Reasons for Verdict are not only mandatory and enforceable, but are also expected to be able to convince the parties involved. It follows that Reasons for Verdict must be seriously and accurately articulated and must avoid using exaggerating, coloured or ambiguous words and expressions. Wordings that are excessively strong or go to either extreme of praise or censure will undermine the solemnity of Reasons for Verdict. We quote below a paragraph in Chapter Two of “A Brief Discussion on the Preparation of Judicial Writings” compiled by the Judiciary:", "zh-HK": "本庭亦須強調，裁決理由不但有強制性，要執行，亦希望能獲當事人信服。因此，裁決理由書必需嚴謹、準確，避免採用誇張、渲染、含糊不清的用詞。措辭過份強烈，褒貶過份極端的用詞，會影響裁決理由的莊嚴性。本庭在此複述由司法機構編製的《司法文書製作淺談》第二章以下段落：" } }, { "doc_id": 128, "seg_id": 127, "translation": { "en": "Literary language places emphasis on description of artistic conception, craves for imagery and liveliness so as to arouse the associations and imaginations of the readers and to emotionalize them by means of artistic style of writing. The object of judicial writings is to resolve problems based on facts and law, and to educate the public. The language used aims to facilitate comprehension and not to emotionalize. As the aims are different, so are the languages and the styles. If a judicial document is written in literary language, using artistic diction and employing lyric, exaggerating, satirical, figurative or insinuating means of description and carries marked literary colours, it is inconsistent with the solemnity of a judicial document.", "zh-HK": "“文學性言語重視描寫意境，追求形象性和生動性，以求引起讀者的聯想和想像，用藝術筆法感動讀者。司法文書是要以事實和法律解決問題，教育大眾，言語的目的在於使人理會，不在於使人感動。目的不同、言語不同、風格有別。司法文書如果選用文學性言語，用藝術性修辭方法，以抒情、誇張、諷刺、比喻、影射等方法描述，帶有濃厚文學色彩，都與司法文書莊嚴性風格不配合。”" } }, { "doc_id": 128, "seg_id": 128, "translation": { "en": "We must emphasize that, even where a verdict is reasonable and correct, Reasons for Verdict which carry words that are excessively strong or go to either extreme of praise or censure, or exaggerating, coloured or even insulting words, may be subject to unnecessary appeal, thereby increasing the workload of the court. Such words and expressions should therefore not appear in Reasons for Verdict.", "zh-HK": "本庭須強調，裁決理由措辭過份強烈，褒貶過份極端，帶誇張、渲染甚至侮辱性用語，則即使裁決合理正確，亦可能導致當事人不服，做成不必要的上訴程序，增加法庭的工作壓力。因此該等用詞不應在裁決理由時出現。" } }, { "doc_id": 128, "seg_id": 129, "translation": { "en": "We have carefully considered the comments made by the trial judge in the Reasons for Verdict on the explanations given by the applicants. We have also listened to the audio recording of the judge’s oral delivery of the Reasons for Verdict. In our judgment, the conduct of the judge fell short of the requisite standard. Both the tone and the words adopted by the judge showed that he was extremely scornful of the explanations given by the applicants in their defence. The judge had repeatedly said “still talking about you” and commented that D1’s defence evidence was lengthy and had wasted much of the court’s time. Such comments were unnecessary and should not have appeared in the delivery of reasons for verdict. Such utterances showed that the judge was very dissatisfied with the explanations given by the applicants in their defence, and a reasonable bystander would be made to think that the judge was biased against the applicants and had failed to hear the case in a fair and impartial manner.", "zh-HK": "本庭已小心考慮過原審法官在其裁決理由書中對申請人解釋所作的評論。本庭更聆聽過原審法官宣讀裁決理由時的錄音記錄。本庭認為原審法官的表現未達到應有的標準。原審法官的用詞語調顯示他極輕蔑申請人的自辯解釋。原審法官多次說到“仍然講緊你”及指D1的答辯證供長篇大論及浪費了法庭頗多時間等評論根本無必要及不應在宣告裁決理由時出現。該等言論顯示原審法官極為不滿申請人自辯時的解釋，導致一名合理的旁觀者認為原審法官對申請人有偏見及未能公正、持平地審理案件。" } }, { "doc_id": 128, "seg_id": 130, "translation": { "en": "However, the problem mentioned above is not the main or sole basis on which we quash the convictions. Our decision to quash the convictions is mainly based on the comment “smart” made by the judge on the decision of D4, who by counsel notified the court that he had elected not to give evidence.", "zh-HK": "但上述因素並非本庭推反原判定罪的主要或唯一因素。本庭推反定罪的決定主要是建基在原審法官在D4的代表大律師向法庭表示D4選擇不作供自辯時，對該決定作出“聰明”的評論。" } }, { "doc_id": 128, "seg_id": 131, "translation": { "en": "The comment “smart” made by the judge is open to the following constructions or interpretations: (1) That the judge considered D4’s decision not to give evidence “smart” could serve to show that he considered the decision of D1 and D2 to give evidence “not smart”; (2) D4’s decision to give evidence would have been considered “not smart”, and the reason must be that if he had elected to give evidence, any explanation that he could have given for his defence would definitely have put him in a more disadvantageous position.", "zh-HK": "原審法官“聰明”的評論能導致以下不同的詮譯或演譯，（一）原審法官指D4不作供的決定“聰明”，可顯示他認為D1及D2作供自辯的決定是“不聰明”；（二）如D4選擇作供，其決定屬“不聰明”，原因必然是如他選擇作供，他能作出的自辯解釋必會對他更不利。" } }, { "doc_id": 128, "seg_id": 132, "translation": { "en": "No matter how the comment “smart” is construed or interpreted, it shows that the judge had already made a decision based on preconceptions on the explanations that the applicants had given or might give in their defence. It would also cause a reasonable bystander to perceive that the judge could not or would not assess the explanations given by the applicants in an objective, impartial and fair manner.", "zh-HK": "不論如何詮釋或演譯原審法官“聰明”的評論，都顯示原審法官對申請人已作出或可能作出的自辯解釋有了先入為主的決定，亦會導致一名合理的旁觀者認定原審法官不能或不會客觀、持平及公正地審議申請人的自辯解釋。" } }, { "doc_id": 128, "seg_id": 133, "translation": { "en": "It has to be stressed that neither party had made closing submissions to the court when the judge made the comment “smart”. It was at that stage improper and wrong for the judge to make a clear indication by word or conduct that could lead a reasonable bystander to feel that he had already made a final decision on the case.", "zh-HK": "本庭須強調，原審法官作出其“聰明”評論時，雙方未向法庭作出結案陳詞。在該階段，原審法官明確表示或其言行能導致一名合理的旁觀者意會到他已就案件作出最終裁決，是不恰當的，亦是錯誤的。" } }, { "doc_id": 128, "seg_id": 134, "translation": { "en": "To ensure that justice is seen to be done, to remind judges that they must maintain a fair and impartial stance throughout the hearing of a case, and to ensure that every defendant charged with a criminal offence enjoys the rights enshrined in the Basic Law and the Bill of Rights that “all persons shall be equal before the courts and shall be entitled to a fair and public hearing”, we are of the view that the correct approach is to set aside all convictions made by the judge against the applicants.", "zh-HK": "為了確保執行公義能彰顯；為了提醒法官在審理案件時，由始至終都必須保持公正、持平的態度，為了所有被檢控的被告人都能享有《基本法》和《人權法例》所賦予“在法院前平等及接受公正、公開審問的權利“，本庭認為適當的做法是撤銷原審法官所作的定罪決定。" } }, { "doc_id": 128, "seg_id": 135, "translation": { "en": "The nature of the offences against the applicants is serious and there is prosecution evidence upon which the applicants can be convicted. A comparison of the sentence that D1 and D2 have already served with the sentence that they are likely to receive upon conviction does not reveal an exceptional reason for not ordering a retrial of their cases. We accordingly order a retrial of the cases against D1 and D2, such retrial to be conducted as soon as possible. As D4 has served the bulk of his sentence and the prosecution has not sought a retrial of the case against him, we order that D4 be released.", "zh-HK": "指控申請人的控罪性質嚴重，控方亦有證據能令申請人入罪。D1及D2已服的刑期和他們如被定罪時會被判的刑期相比，亦不構成特殊理由，令他們無須面對重審，所以本庭下令D1及D2須接受重審及重審要盡快進行。由於D4已服完其大部份刑期而控方亦沒有要求重審他，所以本庭下令釋放D4。" } }, { "doc_id": 128, "seg_id": 136, "translation": { "en": "Hon Yuen JA:", "zh-HK": "上訴法庭法官袁家寧：" } }, { "doc_id": 128, "seg_id": 137, "translation": { "en": "I respectfully agree with the judgments of Cheung JA and Yeung JA and the reasons given by them. Despite the solemnity of court proceedings, it may not be entirely objectionable that parties to the proceedings occasionally utter a few humorous words or statements. In the present case, however, we find it regrettable that the trial judge appeared to have made the defendants a laughing stock on many occasions. By such conduct, the judge had not only lost the dignity that a judge should have, but had also given the impression that he had lost the composure and impartiality required of a judge. The comment that he made before counsel made final submissions also showed that he had already prejudged the defendants. I hope that such conduct, which was in my view very inappropriate, will not recur.", "zh-HK": "本席同意張法官和楊法官的判決及其理由。在嚴肅的法庭程序中，參與者偶爾地加插少許有幽默性的語句，未嘗不可，但在本案本庭感到遺憾的是，原審法官看來是多次以被告人作為笑柄。這樣做不但有失法官應有的尊嚴，亦令人得到的印象是法官已失去他所應有的鎮靜持平的心態，而在律師總結陳詞之前，他所作出的評論亦顯示他對被告人已預作判斷。本席認為這些行動極為不合適，本席盼望同類的處事方式不會重現。" } }, { "doc_id": 128, "seg_id": 138, "translation": { "en": "Miss Mary Sin, Senior Assistant Director of Public Prosecutions, for the Respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員冼佩霞代表。" } }, { "doc_id": 128, "seg_id": 139, "translation": { "en": "Mr. Kenneth Lee, instructed by Chong & Yen on assignment by the Legal Aid Department, for the 1st and 2nd Defendants.", "zh-HK": "第一及二被告人：由法律援助署委派張昭婷嚴興鳳律師事務所轉聘大律師李冠雄代表。" } }, { "doc_id": 128, "seg_id": 140, "translation": { "en": "Mr. James Cheng, instructed by Terry Yeung & Lai on assignment by the Legal Aid Department, for the 4th Defendant.", "zh-HK": "第四被告人：由法律援助署委派楊寶林，黎雅明律師行轉聘鄭從展大律師代表。" } }, { "doc_id": 129, "seg_id": 1, "translation": { "en": "Hon Yeung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案書：" } }, { "doc_id": 129, "seg_id": 2, "translation": { "en": "There remain only 7 applicants in the present case. Three of them are companies, namely the 4th Applicant Chung Luen (Holdings) Limited (hereinafter “Chung Luen Holdings”), the 7th Applicant Yau Luen Hong International Limited (hereinafter “Yau Luen Hong”) and the 9th Applicant Kwong Ming International (Holdings) Limited (hereinafter “Kwong Ming International”). The other four applicants were the persons-in-charge of those companies.", "zh-HK": "本案只餘下七名申請者，包括三間公司，即第4申請人中聯（集團）有限公司（“中聯集聯”），第7申請人，友聯行國際有限公司（“友聯行”）和第9申請人光明國際有限公司（“光明國際”）。另外四名申請人則是公司的負責人。" } }, { "doc_id": 129, "seg_id": 3, "translation": { "en": "The 3rd Applicant Chan Charn Sum was a person-in-charge of Chung Luen International, the 5th Applicant Chan Charn Lam and the 6th Applicant Shum Kit Yee were directors and persons-in-charge of Yau Luen Hong, whereas the 8th Applicant Iu Kwong Wa was a director of Kwong Ming International.", "zh-HK": "第3申請人陳燦森是中聯國際的負責人，第5申請人陳燦林和第6申請人岑潔儀是友聯行的董事及負責人，而第8申請人姚光華則是光明國際的董事。" } }, { "doc_id": 129, "seg_id": 4, "translation": { "en": "On 6 April 2006, following a complaint and investigations thereof, the Hong Kong Customs and Excise conducted searches at a number of warehouses of Chung Luen Holdings and Yau Luen Hong, located at On Lok Factory Building, Ha Heung Road, Kowloon. Large quantities of “fake” Maling Brand and Narcissus Brand canned food were found upon search.", "zh-HK": "2006年4月6日，香港海關在接獲投訴及作出調查後搜查中聯集團和友聯行位於九龍下鄉道安樂工業大厦的多個貨倉，結果搜出大批“冒牌”梅林牌及水仙花牌罐頭食品。" } }, { "doc_id": 129, "seg_id": 5, "translation": { "en": "Chan Charn Sum admitted that the canned products found inside the Chung Luen Holdings warehouses were purchased by him on behalf of Chung Luen Holdings for sale.", "zh-HK": "陳燦森承認負責為中聯集團購入從其貨倉搜出的罐頭食品作銷售之用。" } }, { "doc_id": 129, "seg_id": 6, "translation": { "en": "Chan Charn Lam and Shum Kit Yee also admitted that the canned products found inside the Yau Luen Hong warehouses were purchased by them and owned by Yau Luen Hong.", "zh-HK": "陳燦林和岑潔儀亦承認友聯貨倉搜出的罐頭食品是由他們負責採購得來，屬友聯行所有。" } }, { "doc_id": 129, "seg_id": 7, "translation": { "en": "The “fake” canned products found inside the Yau Luen Hong warehouses included 51,840 cans of “Maling Brand” pickled cabbage which were supplied to Yau Luen Hong by Kwong Ming International.", "zh-HK": "在友聯行貨倉搜獲的“冒牌”罐頭中，有51,840罐“梅林牌”雪菜是由光明國際供應給友聯行的。" } }, { "doc_id": 129, "seg_id": 8, "translation": { "en": "On 10 April 2006, Customs officers arrested Iu Kwong Wa, a director of Kwong Ming International. Iu Kwong Wa admitted that Kwong Ming International had supplied to Yau Luen Hong a batch of “Maling Brand” pickled cabbage, including the 51,840 cans of pickled cabbage found inside the Yau Luen Hong warehouses on 6 April 2006. Customs officers seized from the office of Kwong Ming International an invoice dated 7 March 2006. The invoice, issued and signed by Iu Kwong Wa, indicated that Kwong Ming International had sold the said 51,840 cans of “Maling Brand” pickled cabbage to Yau Luen Hong.", "zh-HK": "2006年4月10日海關關員拘捕了光明國際的董事姚光華。姚光華承認光明國際曾將一批“梅林牌”罐頭雪菜，包括在2006年4月6日在友聯行貨倉搜獲的51,840罐雪菜，供應給友聯行。關員在光明國際的辦事處檢獲一張日期為2006年3月7日的發票。該發票由姚光華簽發，顯示光明國際有出售該批51,840罐“梅林牌”雪菜給友聯行。" } }, { "doc_id": 129, "seg_id": 9, "translation": { "en": "As a result of the incident, the applicants and a few other persons were charged with offences contrary to section 9(2) of the Trade Descriptions Ordinance, Cap. 362 of the Laws of Hong Kong.", "zh-HK": "事件導致各申請人和另外數名人士被控違反香港法例第362章《商品說明條例》第9（2）條。" } }, { "doc_id": 129, "seg_id": 10, "translation": { "en": "The five charges against Chung Luen Holdings, Chan Charn Sum and one other director, as well as the two charges against Yau Luen Hong, Chan Charn Lam and Shum Kit Yee, were that they had in their possession, for sale or for the purpose of trade, goods to which forged trademarks were applied. The charge against Kwong Ming International and Iu Kwong Wa was that they had sold goods to which forged trademarks were applied.", "zh-HK": "針對中聯集團、陳燦森和另一董事的五項控罪以及針對友聯行、陳燦林和岑潔儀的兩項控罪都指他們管有應用偽造商標的貨品作出售或商業用途。針對光明國際和姚光華的一項控罪則指他們出售應用偽造商標的貨品。" } }, { "doc_id": 129, "seg_id": 11, "translation": { "en": "All applicants pleaded not guilty to the respective charges. The case was tried before Deputy District Judge Johnny Chan.", "zh-HK": "各申請人都否認控罪。案件在區域法院暫委法官陳仲衡席前審理。" } }, { "doc_id": 129, "seg_id": 12, "translation": { "en": "Having called all its witnesses, the prosecution applied to amend all the charges by substituting, in respect of the goods which the applicants had allegedly possessed or sold, “to which false trade descriptions were applied” for “to which false trademarks were applied”. According to the proposed amendments, Kwong Ming International and Iu Kwong Wa were charged under section 7(1)(a)(ii) of the Trade Descriptions Ordinance (for having supplied goods to which false trade descriptions were applied), whereas the other applicants were charged under section 7(1)(b) (for having in their possession, for sale or for the purpose of trade, goods to which false trade descriptions were applied).", "zh-HK": "控方在傳召了所有控方證人作供後，申請修訂全部控罪，將申請人管有或出售的貨品上有“應用偽造商標”的指控，改為有“應用虛假商品說明”的指控。修訂的控罪是指光明國際和姚光華違反了《商品說明條例》第7(1)(a)(ii)條(供應已應用虛假商品說明的貨品)而其餘申請人則違反了第7(1)(b)條（管有已應用虛假商品說明的貨品作出售或商業用途）。" } }, { "doc_id": 129, "seg_id": 13, "translation": { "en": "The defence opposed the prosecution’s application to amend the charges, but to no avail. Judge Chan took the view that the original charges were defective and that the proposed amendments were necessary in the circumstances of the case. In allowing the prosecution’s application to amend the charges, Judge Chan made the following ruling:", "zh-HK": "辯方反對控方的修訂申請，但不成功。陳法官認為原控罪欠妥，而修改控罪亦符合案件所需。在作出批准控方修訂控罪時，陳法官有以下裁定" } }, { "doc_id": 129, "seg_id": 14, "translation": { "en": "The evidence against the defendants does not change as a result of [the amendments to the charges]. It is just that they no longer have to deal with the issues of who owned the relevant trademarks or whether they were forged. In relation to the COFCO’s trademarks and descriptions, the defence also had ample opportunity to cross-examine the witnesses. In my view, neither the prosecution’s evidence nor the basis of the prosecution’s case is altered.", "zh-HK": "被告所面對的證供並沒有因此（修改控罪）而改變，只是他們無須處理有關商標是誰所擁有及是否偽造的問題。有關中糧的商標說明，於證人接受盤問時，辯方亦有充足的機會對證人作出挑戰。法庭認為控方的證據並沒有改變，而指控的基礎亦沒有變更。”" } }, { "doc_id": 129, "seg_id": 15, "translation": { "en": "Having allowed the prosecution’s application to amend the charges, Judge Chan adjourned the trial to enable the defence to re-assess its position and formulate a proper response to the amended charges.", "zh-HK": "陳法官批准了控方的修訂申請後，將案件押後聆訊以便辯方有機會重新評估形勢及就修訂後的控罪作出適當回應。" } }, { "doc_id": 129, "seg_id": 16, "translation": { "en": "In order to ensure a fair trial, Judge Chan ordered that, at the resumed hearing, the defence would be entitled to cross-examine the prosecution witnesses again in respect of the amended charges.", "zh-HK": "陳法官下令聆訊重開時，控方證人需就修訂後的控罪再接受辯方的盤問，確保審訊公平。" } }, { "doc_id": 129, "seg_id": 17, "translation": { "en": "Judge Chan also made a costs order to ensure that the applicants would not suffer any pecuniary loss in respect of costs as a result of the amendments.", "zh-HK": "陳法官更頒下訟費判令，使各申請人不會因為修訂控罪而蒙受任何和訟費有關的經濟損失。" } }, { "doc_id": 129, "seg_id": 18, "translation": { "en": "When the trial resumed, the prosecution reopened the examinations-in-chief for some witnesses. The defence raised no objection thereto.", "zh-HK": "審訊重開後，控方有重開對部份證人的主問，辯方沒有反對。" } }, { "doc_id": 129, "seg_id": 19, "translation": { "en": "After trial, with the exception of a charge against Chung Luen Holdings, Chan Charn Sum and one other director, all charges against the applicants were found established and they were convicted accordingly.", "zh-HK": "經審訊後，除了針對中聯集團、陳燦森和另一董事的一項控罪外，所有申請人的全部控罪都成立。" } }, { "doc_id": 129, "seg_id": 20, "translation": { "en": "Except Chan Charn Lam who was sentenced to imprisonment for a total of 10 months, all the applicants were sentenced to fines ranging from a few thousand dollars to tens of thousands of dollars.", "zh-HK": "除了陳燦林被判入獄共10個月外，其他申請人則被罸款數千至數萬元不等。" } }, { "doc_id": 129, "seg_id": 21, "translation": { "en": "All applicants have applied for leave to appeal against convictions. Chan Charn Lam previously applied for leave to appeal against sentence, but he subsequently withdrew the application.", "zh-HK": "全部申請人都提出上訴許可申請希望獲准就定罪上訴。陳燦林亦曾就判刑提出上訴許可申請，但其後放棄。" } }, { "doc_id": 129, "seg_id": 22, "translation": { "en": "We therefore only have to deal with the applicants’ applications in respect of convictions.", "zh-HK": "因此，本庭只需處理各申請人就定罪的申請。" } }, { "doc_id": 129, "seg_id": 23, "translation": { "en": "Prosecution’s case and evidence", "zh-HK": "控方的立場和證據" } }, { "doc_id": 129, "seg_id": 24, "translation": { "en": "China National Cereals, Oils & Foodstuffs Corporation (hereinafter “COFCO”) is the owner of the trademarks of “Maling” and “Narcissus” in Hong Kong and the PRC. The Customs alleged that the marks of “Maling” or “Narcissus” and other marks of COFCO had been applied to the canned products in question without the approval or knowledge of COFCO, and therefore those products were goods to which false trade descriptions were applied.", "zh-HK": "中國糧油食品（集團）有限公司（“中糧油”）是“梅林牌”和“水仙花牌”在香港及國內的商標擁有人。海關指涉案的罐頭食品是未在中糧油批准或知情下應用了“梅林”或“水仙花”商標及其他中糧油標記，故屬虛假商品說明的商品。" } }, { "doc_id": 129, "seg_id": 25, "translation": { "en": "The search and seizure of the goods, which was not in dispute, was tendered as evidence by way of Admitted Facts. In addition, the prosecution called the following witnesses to give evidence at trial: Mr. Zhu Bing (朱兵), Manager of COFCO; Mr. Zhang Jing (張靜), Business Manager of COFCO Industrial Food Import & Export Company Limited (hereinafter “COFCO Industrial Food”), and Mr. Kam Wing Shing (金永成), Manager of Hong Kong Dah Fat Company Limited (hereinafter “Dah Fat Company”).", "zh-HK": "除了搜獲涉案貨品的證據因不具爭議而以承認事實書呈堂為證外，控方傳召了中糧油的經理朱兵先生，中糧工業食品進出口有限公司（“中糧工業食品”）的業務經理張靜先生及香港大發食品有限公司（“大發食品”）的經理金永成先生作供。" } }, { "doc_id": 129, "seg_id": 26, "translation": { "en": "According to Mr. Zhu, COFCO owned the trademarks of “Maling Brand” and “Narcissus Brand” but had at different times authorized various companies to apply the “Maling” and “Narcissus” trademarks to canned food.", "zh-HK": "朱先生指出中糧油是“梅林牌”和“水仙花牌”商標的擁有人，但中糧油曾在不同時段授權不同公司使用“梅林”和“水仙花“商標於罐頭食品上。" } }, { "doc_id": 129, "seg_id": 27, "translation": { "en": "Mr. Zhu agreed that COFCO had changed its company name more than once since 31 August 1998, details of which were as follows:", "zh-HK": "朱先生同意中糧油自1998年8月31日開始曾不止一次改公司名稱，詳情如下：" } }, { "doc_id": 129, "seg_id": 28, "translation": { "en": "Until 31 August 1998, the full name of COFCO was ‘China Cereals, Oils and Foods Import and Export Company (an unincorporated body)’. On 31 August 1998, it was changed to ‘China Cereals, Oils, Foods Import and Export (Group) Company Limited (a body corporate)’. Since 1 September 1994 the name has been changed to its current one, namely ‘中國糧油食品（集團）有限公司 (a body corporate)’, and its name registered in English is China National Cereals, Oils and Foodstuffs Import & Export Corporation.", "zh-HK": "1998年8月31日前中糧油全名為‘中國糧油食品進出口總公司（非法人團體）’。1998年8月31日改名為“中國糧油食品進出口（集團）有限公司（法人團體）”，而在2004年9月1日則再改為目前名字，即‘中國糧油食品（集團）有限公司（法人團體）’，而以英文註冊的名字為China National Cereals, Oils and Foodstuffs Import & Export Corporation.”" } }, { "doc_id": 129, "seg_id": 29, "translation": { "en": "Having compared the information shown on the canned food found from the applicants’ premises with the information he had on hand, Mr. Zhang Jing concluded that the trademarks displayed on the canned food in question had been applied without the authorization of COFCO. In respect of the various items of canned food particularized in the charges, Mr. Zhang Jing examined the samples of the canned food one by one and explained why they were fake goods. His conclusion was based on the labels of the cans, names of the distributors, dates of manufacture, the descriptions of the names of the companies granting and receiving authorization, and the investigation he had conducted.", "zh-HK": "根據從各申請人處搜獲的涉案罐頭食品上的資料和他手上的資料作出比較，張靜先生得出的結論是該批罐頭食品顯露的商標是未經中糧油授權下使用的。就各項控罪所指的罐頭，張靜先生逐一驗證不同罐頭的樣本及解釋為何它們都是假貨。張靜先生得出的結論是根據罐頭標籤、經銷商名字、貨品出產日期、授權及獲授權公司名字的描述和他作出的調查而作出的。" } }, { "doc_id": 129, "seg_id": 30, "translation": { "en": "Mr. Kam Wing Shing said that Dah Fat Company was one of the three distributors who were authorized to sell goods under the “Maling Brand” and “Narcissus Brand” in Hong Kong. He explained how Dah Fat Company would handle complaints from the public about product quality and the presence of fake goods. He said that when a problem arose, Dah Fat Company would buy a small quantity of the goods for investigation and, if necessary, send the goods to COFCO in Beijing for verification.", "zh-HK": "金永成先生指出大發食品是中糧油在香港獲准銷售“梅林牌”及“水仙花牌”貨品的三間經銷商之一。他就市民投訴貨品質量及冒牌貨出現的處理方法向法庭解釋，並指出有問題時，大發食品會購買小量貨品研究及在有需要時會將有關貨品寄往北京的中糧油認證。" } }, { "doc_id": 129, "seg_id": 31, "translation": { "en": "Applicants’ defence", "zh-HK": "申請人的答辯理由" } }, { "doc_id": 129, "seg_id": 32, "translation": { "en": "Apart from the explanations given by individual applicants on how they obtained the fake canned products in question, no challenge had been mounted by the defence on the elements of the charges or the prosecution’s case. Individual applicants also explained the confessions that they made to the Customs officers upon arrest. In essence, however, the applicants’ position at trial was that they wished to establish the defence under section 26 of the Trade Descriptions Ordinance.", "zh-HK": "除了個別申請人就如何取得涉案冒牌罐頭食品的情況向法庭解釋外，辯方沒有挑戰各控罪的要素或反駁控方的立場。個別申請人亦有就他們被捕後向關員的招認作出解釋，但各申請人原審時的基本立場只是希望能確立《商品說明條例》第26條賦予的免責辯護。" } }, { "doc_id": 129, "seg_id": 33, "translation": { "en": "Judge’s findings", "zh-HK": "原審法官的裁定" } }, { "doc_id": 129, "seg_id": 34, "translation": { "en": "Having carefully analyzed the evidence of both parties, Judge Chan held that, save and except the 5th Charge against Chan Charn Sum and Chung Luen Holdings, all charges against the applicants were established. The Judge held that, apart from the canned products particularized in the 5th Charge, all the canned products in question bore the trademarks of “Maling” or “Narcissus” or other marks owned by COFCO, which indicated that they were distributed with the authorization of COFCO or related to COFCO; in fact, however, the goods were neither distributed by/manufactured with the authorization of COFCO or COFCO Industrial Food, nor related to COFCO or COFCO Industrial Food.", "zh-HK": "陳法官經詳細分析雙方的證據後裁定除了針對陳燦森和中聯集團的第五項控罪外，其餘全部控罪都確立。陳法官裁定除控罪五的罐頭外，其餘涉案的罐頭，都有“梅林”“水仙花”的商標或其他中糧油標記，顯示獲中糧油授權經銷或和中糧油有關，但它們都並非中糧油或中糧工業經銷或授權出產的貨品，亦和中糧油或中糧工業無關。" } }, { "doc_id": 129, "seg_id": 35, "translation": { "en": "Judge Chan rejected both the applicants’ explanations that they had no knowledge of the matter and other exculpatory explanations given by them, and accordingly held that they could not rely on the defence of mistake or accident under section 26 of the Trade Descriptions Ordinance. On that basis, Judge Chan held that, save and except the 5th Charge against Chung Luen Holdings and Chan Charn Sum, all charges against the applicants were established.", "zh-HK": "陳法官亦否定各申請人指對事件不知情或無罪的解釋，故不能根據《商品說明條例》第26條以錯誤、意外等理由作為免責辯護。因此，除了針對中聯集團和陳燦森的第五項控罪外，陳法官裁定針對各申請人的全部控罪都成立。" } }, { "doc_id": 129, "seg_id": 36, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 129, "seg_id": 37, "translation": { "en": "The applicants do not take issue with most of the findings of fact by Judge Chan. They also accept the Judge’s conclusion that they had failed to establish any defence under section 26 of the Trade Descriptions Ordinance.", "zh-HK": "各申請人對陳法官的事實裁決大部份不表異議，亦接納陳法官指他們未能根據《商品說明條例》第26條確立任何免責辯護的理由。" } }, { "doc_id": 129, "seg_id": 38, "translation": { "en": "Indeed, the applicants basically agree that, on the findings of fact made by Judge Chan, he was correct in convicting the applicants on the charges.", "zh-HK": "事實上各申請人基本上同意根據陳法官裁定的事實，裁定他們各項控罪有罪的決定是正確的。" } }, { "doc_id": 129, "seg_id": 39, "translation": { "en": "The main ground of appeal put forward by Mr. Kwok, SC, Counsel for the applicants, is that procedural irregularities and injustice arose when Judge Chan allowed the prosecution to amend the charges by substituting “false trade descriptions” for “forged trademarks”.", "zh-HK": "代表各申請人的郭棟明資深大律師主要的上訴理由是指陳法官批准控方修訂控罪將有關“偽造商標”的指控改為是“虛假商品說明”的指控，構成程序上不規則，亦導致不公平的情況出現。" } }, { "doc_id": 129, "seg_id": 40, "translation": { "en": "Mr. Kwok, SC submits that Judge Chan erroneously held that, despite the amendments to the charges, the defence would still have ample opportunity to challenge the evidence of the prosecution witnesses or the basis of the prosecution’s case would remain the same. It is contended that by the time the charges were amended, the applicants could not reverse what they had already done by way of defence to the original indictment. And the way the applicants had defended the case made it easier for the prosecution to prove the amended charges. The amended charges therefore caused injustice to the applicants.", "zh-HK": "郭資深大律師強調陳法官錯誤地裁定控罪經修訂後，辯方有充足機會挑戰控方證人的證供或控方的指控的基礎沒有變更。郭資深大律師力稱當修訂控罪時，辯方根據原公訴書作出的答辯行為已不能逆轉，該些答辯行為亦令控方較容易確立新修訂的控罪。因此修訂控罪對申請人不公平。" } }, { "doc_id": 129, "seg_id": 41, "translation": { "en": "Mr. Kwok, SC has also pointed out in his written submissions that the trial had to be adjourned following the amendments to the charges, and the ensuing delay was unfair to the applicants, and, contrary to what the Judge said, such unfairness could not be eliminated by the costs order made by the Judge.", "zh-HK": "郭資深大律師亦在書面陳述中指修訂控罪而導致的押後聆訊安排產生延誤，對申請人做成不公平，但陳法官作出的訟費命令不能如其所稱可以消除對申請人做成的不公平。" } }, { "doc_id": 129, "seg_id": 42, "translation": { "en": "Mr. Kwok, SC further submits that, in the absence of any finding by the Judge as to which of the trade descriptions on the canned products as particularized in the charges were false or why they were false, the applicants’ convictions were unsafe.", "zh-HK": "郭資深大律師更指陳法官沒有裁定控罪所涉的罐頭上的商品說明那些屬虛假或該些說明為何是虛假，因此裁定申請人有罪是不穩妥的決定。" } }, { "doc_id": 129, "seg_id": 43, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 129, "seg_id": 44, "translation": { "en": "Judge Chan gave a detailed account of the evidence by Mr. Zhang Jing. The Judge pointed out that the canned products in question bore not only the trademarks of “Maling” or “Narcissus”, but also the name of COFCO or a similar name such as COFCO Industrial Food or the former name of COFCO. The Judge also pointed out that the products were packaged in a similar way, using packaging paper of the same colour, and that there were statements indicating that COFCO had authorized companies with names similar to COFCO to sell the products.", "zh-HK": "陳法官詳細列出張靜先生的證供。陳法官指出涉案的罐頭不單有“梅林”或“水仙花”的商標，亦有用上中糧油或相若的名字，如中糧工業，舊中糧和相似的包裝，包括包裝紙的顏色，更有陳述顯示中糧油有授權其他和中糧油公司名字類似的公司銷售。" } }, { "doc_id": 129, "seg_id": 45, "translation": { "en": "Judge Chan was satisfied that the above trademarks, names, packaging and statements etc. would lead one to believe that, contrary to the truth, the canned products in question were manufactured, produced, processed and reconditioned by COFCO, or that they were approved by COFCO or fell within the type of products approved by COFCO.", "zh-HK": "陳法官認定採用上述商標，名字，包裝、陳述等等都會令人相信涉案罐頭是中糧油製造、生產、加工和修復，或得到中糧油的認可或與它所認可的類型相符，但實際是非真有其事。" } }, { "doc_id": 129, "seg_id": 46, "translation": { "en": "The Judge made the following findings in paragraph 146 of his Judgment:", "zh-HK": "原審法官在判案書第146段作出以下裁決：" } }, { "doc_id": 129, "seg_id": 47, "translation": { "en": "The Court is of the view that PW14’s testimony clearly indicates that the canned products in Charges 1 to 4 and 6 to 12 were products to which false trade descriptions were applied. Although the trade descriptions were false in different ways and to different extents, they obviously led one to believe that the canned products were manufactured, produced, processed and reconditioned by COFCO, or were at least related to COFCO and of a type approved by COFCO. When the name of COFCO was applied to the canned products, one would naturally think that the products were made by COFCO. If a name similar to ‘COFCO’ was used, such as ‘former COFCO’, and even packaging similar to PX75 or packaging paper of the same colour was used, people would easily be misled. If information such as COFCO, COFCO Industrial Food, ‘Maling’ or ‘Narcissus Brand’ was applied to the canned products with which such information had in fact no connection, such description or display would be false to a material degree.", "zh-HK": "法庭認為控方證人十四的證詞清楚顯示控罪一至四，六至十二的罐頭是應用了虛假商品說明的貨品，他們的虛假程度方式有別，程度亦有別，但均清楚使人相信是中糧製造、生產、加工和修復，或最少是與中糧有關，並經中糧認可，類型相符。當罐頭是用上中糧的名字，當然是會使人想到貨品是中糧的出品。如用上與「中糧」相若的名字，如「舊中糧」，甚至如PX75與相似的包裝，頻色紙包裝，亦會使人容易被誤導。中糧、中糧工業、「梅林」、「水仙花牌」等資料若用於罐頭上，而非真有其事，此一虛假程度屬於關程度的說明或顯示。”" } }, { "doc_id": 129, "seg_id": 48, "translation": { "en": "Mr. Kwok, SC submits that Judge Chan did not make any findings on which of the trade descriptions on the canned food in question were false or why they were false. With respect, we cannot accept this submission which is in our view misconceived. Given the factual matrix of the present case, the way in which Judge Chan dealt with the case was reasonable, correct and amply sufficient. He had set out the results of the verification by Mr. Zhang in relation to each charge, and as a matter of fact, at trial the defence never challenged the prosecution’s case on whether the elements of the charges had been established. The Judge cannot be faulted for not having dealt with the relevant issues in greater depth.", "zh-HK": "郭資深大律師指陳法官沒有裁定涉案罐頭的商品說明那些是虛假或為何該些說明是虛假。本庭認為該陳詞不正確，本庭不接納。以本案背景而言，陳法官的處理方法合理、正確亦十分足夠。法官已就每一項控罪列出張先生核正的結果，而事實上原審時，辯方完全沒有就控罪要素是否成立一事反駁控方的立場。原審法官沒有更詳盡處理有關議題是無可厚非的。" } }, { "doc_id": 129, "seg_id": 49, "translation": { "en": "Section 23 of the Criminal Procedure Ordinance, Cap. 221 of the Laws of Hong Kong, provides as follows:", "zh-HK": "香港法例第221章《刑事訴訟程序條例》第23條列明：" } }, { "doc_id": 129, "seg_id": 50, "translation": { "en": "Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice.", "zh-HK": "凡在審訊前或在審訊的任何階段，法庭覺得公訴書欠妥，法庭須作出其認為符合案件情況所需的命令以修訂公訴書，但如在顧及案件的是非曲直後，覺得作出所需的修訂必會造成不公正，則屬例外。”" } }, { "doc_id": 129, "seg_id": 51, "translation": { "en": "The above provision states in clear language that the court has both the power and duty to amend a defective indictment unless the amendments will cause injustice.", "zh-HK": "上述條例的用詞是明確的，在公訴書欠妥時，法庭不但有權，更有責任修訂公訴書，除非修訂會導致不公平。" } }, { "doc_id": 129, "seg_id": 52, "translation": { "en": "On the question of how the court should amend an indictment pursuant to section 23 of the Criminal Procedure Ordinance, the Court of Appeal laid down clear guidelines in the case of AG v Chan Hung Hoi [1987] HKLR 969.", "zh-HK": "在該如何根據《刑事訴訟條例》第23條修訂公訴書，上訴法庭在AG v Chan Hung Hoi [1987] HKLR 969案有明確指引。" } }, { "doc_id": 129, "seg_id": 53, "translation": { "en": "In that case, having reviewed a number of English authorities, Roberts CJ held that it was open to a judge to order the amendment of an indictment if the evidence adduced at trial did not support the allegations contained in the indictment, provided that the amendment would not lead to injustice.", "zh-HK": "當時首席按察司羅拔時，經審閱過多個英國判例後指出，在審訊過程假若證據不支持公訴書的指控時，法庭可以修訂公訴書，只要修訂不會做成不公平。" } }, { "doc_id": 129, "seg_id": 54, "translation": { "en": "Roberts CJ concluded (at p. 974) that:", "zh-HK": "羅拔時首席按察司在判案書第974頁作出以下結論：" } }, { "doc_id": 129, "seg_id": 55, "translation": { "en": "The trial judge has a power to consider, of his own motion, whether to amend the indictment in accordance with its provisions.", "zh-HK": "主審法官有權主動考慮是否根據有關條款修訂公訴書。" } }, { "doc_id": 129, "seg_id": 56, "translation": { "en": "There is no duty on him to exercise that power of his own motion.", "zh-HK": "主審法官沒有責任必需主動考慮修訂公訴書。" } }, { "doc_id": 129, "seg_id": 57, "translation": { "en": "If application is made for such amendment by the Crown or the defence, the judge is obliged to consider the application.", "zh-HK": "但如控方或辯方作出修訂的申請，則主審法官必需考慮修訂申請。" } }, { "doc_id": 129, "seg_id": 58, "translation": { "en": "In considering that application, the judge is obliged to make such amendment as is necessary to meet ‘the circumstances of the case’, unless the required amendments ‘cannot be made without injustice’.", "zh-HK": "考慮修訂申請時，主審法官必需作出符合案件情況所需的修訂，除非作出的修訂必會做成不公平。" } }, { "doc_id": 129, "seg_id": 59, "translation": { "en": "This power may be exercised at any time during the course of trial, in the case of a District Court up to the moment of delivery of judgment.", "zh-HK": "修訂公訴書的權力可以在審訊任何階段行使，以區域法院案件而言，是在頒下判案書前的任何一刻。”" } }, { "doc_id": 129, "seg_id": 60, "translation": { "en": "Mr. Kwok, SC contends that the original indictment alleged that forged trademarks had been used on the products in question, whereas the amended indictment alleged that false trade descriptions had been used on those products. With this change of allegation, the issues to be addressed by the defence also changed. Therefore, it is submitted, the amendments to the indictment caused injustice to the applicants.", "zh-HK": "郭資深大律師強調原公訴書上的控罪指貨品用了偽造商標的而修訂後的控罪則指貨品用了虛假說明，指控不同，辯方要處理的問題亦有別。因此修訂公訴書對申請人做成不公平。" } }, { "doc_id": 129, "seg_id": 61, "translation": { "en": "It goes without saying that the allegations in the original indictment must be different from those in the amended indictment, which is what makes an amendment necessary in the first place. The fact that the defence may, as a result of the amendment, have to deal with certain issues that may otherwise not arise does not necessarily mean that the amendment will cause injustice. If an amendment to the indictment is not allowed for the reason that it will alter the allegations against the defence and hence cause injustice, the court’s power to make such amendments will become illusory.", "zh-HK": "當然修訂前和修訂後公訴書的指控必然有別，否則無需修訂。修訂後的公訴書亦可能導致辯方要處理一些修訂前不一定要處理的問題，但這不表示修訂必會做成不公。假若因修訂公訴書會導致針對被告人的指控有別故做成不公，而不批准修訂，則修訂的權力便形同虛設。" } }, { "doc_id": 129, "seg_id": 62, "translation": { "en": "In the present case, the improper conduct being alleged against the applicants both before and after the amendments to the indictment was essentially the possession or supply of canned products that suggested, contrary to the truth, that they were related to COFCO. The prosecution all along alleged that the batch of canned food was not products of “Maling” or “Narcissus Brand” and hence had nothing to do with COFCO. In our view, the alleged improper conduct was basically the same both before and after the amendments to the indictment. We have not ignored the principle that a broad approach should be taken in considering the scope of “improper conduct” (see the decision by the Court of Final Appeal in Poon Chau Cheong v SJ [2000] 2 HKLRD 636). In all the circumstances of the case, the “irreversible” (as submitted by Mr. Kwok, SC) information disclosed by the applicants in the defence to the original indictment was in fact insignificant and no question of injustice would have arisen.", "zh-HK": "在本案，修訂前和修訂後所指的不當行為，基本都是指申請人管有或供應的罐頭食品顯示它們是和中糧油有關的貨品，而事實上並非如此。由始至終，控方指該批罐頭食品並非是“梅林”或“水仙花牌”的出產，因而和中糧油無關。本庭認為修訂前和修訂後指控申請人的不當行為基本上相同。本庭不能忽視考慮“不當行為”的範圍時應採納較宏觀的方法（見終審法院在Poon Chan Cheong v SJ [2002] 2HK 279案的判決）。郭大律師所指申請人就原控罪答辯時所透露的“不可逆轉”資料，以整體案件而言，實在是微不足道，亦不會導致任何不公平的情況出現。" } }, { "doc_id": 129, "seg_id": 63, "translation": { "en": "The key issue pertinent to the present application is not whether the amendments gave rise to new issues for the defence, but whether the defence had been given ample opportunity to properly deal with the issues that arose from the amendments to the indictment.", "zh-HK": "和本申請有關的重要議題並非辯方是否因修訂而要處理新的問題，而是在修訂公訴書後，辯方是否有足夠機會適當處理修訂後的公訴書所引發的問題。" } }, { "doc_id": 129, "seg_id": 64, "translation": { "en": "If an amendment to the indictment will alter the allegations against a defendant but he is not given ample opportunity to raise a defence that he wishes to raise to the new allegations, and the defendant will be able to raise such defence if the prosecution’s allegations are made well in advance, then the amendment will cause injustice.", "zh-HK": "假若修訂公訴書會改變了對被告人的指控，但被告人不能獲得足夠機會就新的指控提出其希望提出的答辯理據而假若控方一早提出新的指控時，辯方能提出該些答辯理據，則修訂會導致不公平情況出現。" } }, { "doc_id": 129, "seg_id": 65, "translation": { "en": "The present case, however, is entirely different from the above scenario. The prosecution’s case against the applicants had all along been that they had possessed or sold canned products that appeared to be related to COFCO, i.e. they were of “Maling Brand” or “Narcissus Brand”, but in fact those products were in no way related to COFCO and were fake products.", "zh-HK": "但本案絕非和上述情況有關，控方由始至終都指各申請人管有或出售一些表面上似和中糧油有關的罐頭貨品，即梅林牌或水仙花牌罐頭，而事實上該些貨品和中糧油完全無關，屬冒牌貨品。" } }, { "doc_id": 129, "seg_id": 66, "translation": { "en": "As COFCO had changed its name many times, it was somewhat difficult to adduce evidence in respect of the trademarks. The allegations in the indictment were therefore amended to those involving false trade descriptions. This did not alter the substance of the allegations against the applicants or the evidence in relation thereto.", "zh-HK": "由於中糧油曾多次更改公司名字，令商標一事在舉證上有一些困難，故將公訴書的指控改為虛假商品說明，但指控申請人的實質無變，證據亦是一樣。" } }, { "doc_id": 129, "seg_id": 67, "translation": { "en": "Furthermore, after the indictment was amended, the applicants were given ample opportunity to put forward such defence as they wished. At trial, the applicants were well aware of the prosecution’s case and were able to defend the prosecution’s allegations as they wished and call witnesses to testify on their behalf. On the other hand, the amendments to the indictment did not result in any substantial change to the evidence for the defence.", "zh-HK": "再者，修改公訴書後，申請人有足夠機會作出其希望作出的答辯理據。原審答辯時，各申請人都明確知悉控方立場。他們亦能就控方對他們的指控作出他們希望作出的答辯理由及傳召證人為他們作供。反觀他們的答辯證據亦不會因修訂公訴書有任何實質的改變。" } }, { "doc_id": 129, "seg_id": 68, "translation": { "en": "As a matter of fact, whether at trial or at the present stage, the applicants were unable to specify what real impact on their defence or what kind of injustice had been caused by the amendments to the charges.", "zh-HK": "事實上，不論是原審或在目前階段，申請人都不能明確指出修改公訴書對他們的答辯有任何實質的影響或會導致甚麼不公正的後果。" } }, { "doc_id": 129, "seg_id": 69, "translation": { "en": "After the trial resumed, the prosecution reopened the examinations-in-chief for the purpose of highlighting the key issues of the case. The prosecution’s failure to apply to the Judge for permission to do so was a procedural omission and the defence did not raise any objection at that time. The merits of the case had not been affected whatsoever, and no injustice had been caused.", "zh-HK": "案件審訊經押後重開時，控方有重開主問，目的是將案件的重點帶出。雖然控方應先向原審法官申請，但這是程序上的一些疏漏，當時辯方亦沒有提出反對，所以對事件的是非曲直毫無影響，更不會導致任何不公正之處。" } }, { "doc_id": 129, "seg_id": 70, "translation": { "en": "The fact that the defence now relies on the omission as a ground of appeal serves to demonstrate the weakness of the defence.", "zh-HK": "在上訴階段，辯方卻以這點作為上訴理由，可稱是理屈的表現。" } }, { "doc_id": 129, "seg_id": 71, "translation": { "en": "We have considered the grounds of appeal put forward by the applicants and find none of them meritorious. In our judgment, Judge Chan was correct in finding the applicants guilty and their convictions are neither unsafe nor unsatisfactory. The applicants’ applications for leave to appeal against conviction are dismissed.", "zh-HK": "本庭已考慮過各申請人提出的上訴理由，該些上訴理由不具任何說服力。本庭認為陳法官裁定各申請人有罪的決定是正確的，並無不穩妥之處。本庭拒絕批准各申請人就定罪上訴。" } }, { "doc_id": 129, "seg_id": 72, "translation": { "en": "Mr. David Leung, Senior Public Prosecutor, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官梁卓然代表。" } }, { "doc_id": 129, "seg_id": 73, "translation": { "en": "Mr. Eric Kwok, SC and Ms. Phyllis To, instructed by Simon C W Yung & Co., for the 3rd to 9th Applicants.", "zh-HK": "第三至第九申請人：由翁宗榮律師行轉聘資深大律師郭棟明及陶靄穎大律師代表。" } }, { "doc_id": 130, "seg_id": 1, "translation": { "en": "Hon Chan CJHC (giving the judgment of the Court):", "zh-HK": "由高等法院首席法官陳兆愷宣讀上訴法庭判案書:" } }, { "doc_id": 130, "seg_id": 2, "translation": { "en": "The Applicant was charged with having unlawful sexual intercourse with a girl under the age of 13, contrary to Section 123 of the Crimes Ordinance (Cap. 200). He was convicted after trial in the District Court and sentenced to imprisonment for 12 months. The Applicant now applies for leave to appeal against conviction.", "zh-HK": "上訴申請人被控一項與年齡在13歲以下的女童非法性交罪，違反香港法例第200章《刑事罪行條例》第123條，在區域法院經審訊後，被裁定罪名成立，入獄12個月。現申請上訴許可，要求推翻原判。" } }, { "doc_id": 130, "seg_id": 3, "translation": { "en": "The complainant was a girl aged 11 years and 11 months at the material time. She and the Applicant knew each other. One day in July 1997, the complainant arrived at the Applicant’s residence in Fanling in the afternoon. The entrance door of the premises was not locked, and the Applicant was sleeping in the bedroom. The complainant took a seat in the living room and stayed there. Later, the Applicant woke up and asked the complainant to go into his bedroom. After the complainant entered the bedroom, the Applicant locked the door. He then kissed the complainant in the bed. She was at first unwilling to be kissed but in the end did not resist. Then the Applicant and the complainant had sexual intercourse, after which she left the Applicant’s house. But she did not tell anyone about the incident. In January 1998, the Social Welfare Department obtained from the court a child protection order, pursuant to which the complainant had to reside at a home for the children. When she was residing there, the above incident was discovered. The complainant told a social worker that she had been raped by the Applicant. A report was then made to the police.", "zh-HK": "於1997年7月，女事主為一名11歲11個月的女童，與申請人是認識的。根據女事主聲稱，於7月某日下午她來到申請人在粉嶺的住所內。當時屋門是沒有上鎖的，而申請人則在睡房內睡覺。女事主在客廳坐下逗留。其後申請人睡醒，着女事主進入他的睡房內。當女事主在房中時，申請人將門反鎖。稍後他在床上親吻女事主。女事主起初不願意但後來並沒有拒絕。其後申請人與女事主發生性行為，事後女事主離開申請人的住所。不過她並沒有將此事告訴任何人。直至1998年1月，社會福利署向兒童法庭取得保護兒童令，女事主須在兒童院居住。期間揭發此事。女事主曾向社工透露她曾被申請人強姦。於是報警。" } }, { "doc_id": 130, "seg_id": 4, "translation": { "en": "On 2 February of this year, when the police took a written statement from the complainant, she mentioned that she was raped by the Applicant at the material time. However, when she was interviewed again by the police the following day, she admitted that she voluntarily had sexual intercourse with the Applicant and that the Applicant had not raped her. As to what she told the police the previous day, namely that some time in October 1997 the Applicant pushed her onto a white goods vehicle and gave her some drink that she took, following which she fainted and was raped by the Applicant, she said that it was a story that she made up.", "zh-HK": "在本年2月2日，女事主向警方錄取一份書面口供時，提及案發時被申請人強姦。不過翌日在接受警方第二次會面時，女事主向警方承認當時她是自願與申請人進行性行為的，並沒有被申請人強姦。至於她日前向警方說於1997年10月被申請人推上一輛白色貨車和喝了一杯申請人給她的飲料後暈倒而被申請人強姦也是她虛構出來的。" } }, { "doc_id": 130, "seg_id": 5, "translation": { "en": "At trial, when she was asked why she made up the story of having been raped by the Applicant, the complainant replied that the Applicant was “loathsome” because he had asked her “There is business and I have customers. Do you want to do it?”, which suggested that he wanted her to provide prostitution services. She also admitted that it was at the suggestion of her friends at the home for the children that she told the social worker and the police that she had been raped. For fear of discontentment from her mother or family members, she made up the story of having been raped. But then she feared that the police would “uncover” her lie, and therefore she admitted at the second interview that she had made up the story. At the same time, she once and again asserted that she had sexual intercourse with the Applicant in July of last year.", "zh-HK": "在審訊時，女事主被問及為甚麼她虛構遭申請人強姦一事，她解釋說她感到申請人是「乞人憎」，因為申請人曾向她詢問：「有生意做，有客，問我做唔做」，意思是暗示女事主去賣淫。女事主又承認是她在兒童院的朋友建議下才對社工及警方說遭人強姦。她因為恐怕母親或家人對她不滿，因此才虛構被申請人強姦。不過後來因恐怕被警方「拆穿」她說謊，所以才在第二次會面時坦白承認有關強姦的事是虛構的。但是女事主一再肯定她是在去年７月與申請人發生性行為。" } }, { "doc_id": 130, "seg_id": 6, "translation": { "en": "The Applicant, giving evidence in court, denied having had sexual intercourse with the complainant. He admitted that he and the complainant knew each other. He also said he used to borrow a friend’s car to drive her girlfriend and a few other youngsters (including the complainant) to his house to play and to carry out other activities such as swimming and fishing. However, he said that the entrance door of his house was always locked because he lived rather far away from the city proper and it was necessary to prevent strangers from entering his house. He said he and his girlfriend were on holiday in July 1997 and that they were together every day. He also said that during that period the complainant had never been to his house, and that whenever he was outside, no one including the complainant could enter his house.", "zh-HK": "申請人在庭上作供時否認曾與女事主發生性行為。他承認與女事主認識。他又曾經向朋友借了一部車接載他的女朋友和數位青少年包括女事主往他的住所玩耍及進行其他活動，如游泳和釣魚等。不過他說他住所的大門是經常上鎖的，這是因為他住的地方比較偏僻，所以要防範閒雜人等進入。他說在1997年7月期間他正與女朋友一同請假，而且每天在一起。申請人說在該段時間內，女事主並沒有到他的家中玩耍，而且假如他不在住所內，其他人包括女事主是不能進入的。" } }, { "doc_id": 130, "seg_id": 7, "translation": { "en": "Having considered and analysed at length the evidence of the complainant and the Applicant, the trial judge commented that, although the complainant was more mature than her female peers, she still retained much of her childlikeness. The judge also observed that the complainant was firm and confident when testifying in court, and apart from her admission of having fabricated the story to the social worker and the police of her having been kidnapped and raped, her evidence was consistent with what she had told the police. The judge concluded that: “From her demeanour and countenance, I am sure that the complainant is a veracious witness. Her evidence in court is reliable and credible, and I accept her evidence as true and accurate.” On the other hand, the judge considered the Applicant’s evidence in court incredible and said that “what he said in court is often self-contradictory and inconsistent, and he often made thoughtless statements. He is hardly a reliable witness.” In the end, the judge accepted and believed the complainant’s evidence and, having satisfied beyond reasonable doubt that the Applicant was guilty, convicted him of the offence.", "zh-HK": "原審法官詳細考慮和分析女事主及申請人的証供後，認為女事主雖然較同年齡的女孩子成熟，但仍是一片童真，而且在庭上作供時表現堅定和自信，除了承認曾向社工及警方虛構遭綁架及強姦外，她的証供與向警方所說的是前後一致。法官的結論是：「觀察她的言行，神態，本席可以肯定她是一位可靠的証人。而她在庭上所作之証供是誠實可信的，因此本席接受她的証供是真確的事實。」相反，法官認為申請人在庭上的作供是不可信，而且「他的表現經常前後自相矛盾，前言不對後語，而且經常信口開河，是一個不可靠的証人。」最後法官接納及相信女事主的証供，因此在毫無合理的疑點下判申請人罪名成立。" } }, { "doc_id": 130, "seg_id": 8, "translation": { "en": "Mr Chan, Counsel for the Applicant, puts forward four grounds of appeal. The first to third grounds relate to corroborative evidence and can be dealt with together. Counsel submits that the trial judge had failed to warn herself of the dangers of convicting a defendant in the absence of corroborative evidence. Counsel refers to the decision of the Full Court in R v. CHAN Siu-wong [1970] HKLR 61 and the decision of the High Court in R v. CHAN Yuet-shing Mag. App. 1009/1985. It was held in these cases that, where an accomplice gives evidence or where a sexual offence is involved, the judge must, according to an established legal rule, warn the jury (or himself, as the case may be) of the dangers of convicting the defendant on uncorroborated evidence; and where such a warning has not been given, the conviction is unsafe. Counsel submits that, on the basis of these authorities, where a case was tried by a judge without a jury, and the judge did not expressly state in his Reasons for Judgment whether he had given himself the above warning, the appellate court will not know whether the judge actually did so, and in such circumstances, the conviction must be quashed. Counsel contends that in the present case, in view of the fact that the complainant had made serious allegations against the Applicant and had subsequently admitted that they were false, it was all the more important for the trial judge to seek corroborative evidence. As the judge did not indicate that she had warned herself as aforesaid, the Applicant’s conviction is, in Counsel’s submission, neither safe nor correct.", "zh-HK": "代表申請人的陳大律師提出四點上訴理由。第一至第三項理由與輔助証據有關，可以一併處理。大律師認為原審法官在判案時未有警告自己在缺乏佐証下定罪的危險性。大律師引用合議庭於R v. CHAN Siu-wong [1970] HKLR 61及高等法院在R v. CHAN Yuet-shing，裁判署上訴案1985年第1009號兩案的案例。案中法庭指出在有從犯作証或性犯罪案中，法律上有一條成規要求法官向陪審團或自己提出警告在沒有佐証下定罪是危險的；如果法官沒有向陪審團或自己提出警告而判被告有罪，這項定罪是不穩當的。大律師謂根據這些判例，在沒有陪審團的案件中，如果法官在判決書中沒有明言他有沒有對自己作出警告，上訴法庭便不知道他有沒有這樣做，那麼定罪的裁決必須撤銷。大律師並指出女事主曾承認對申請人作出嚴重的虛假指控，因此尋求佐証便更為重要。原審法官沒有提及她曾向自己提出警告便作出裁決，這個判決便不穩當，而且是錯誤的。" } }, { "doc_id": 130, "seg_id": 9, "translation": { "en": "Mr Leung, Counsel for the prosecution, concedes that there was no independent evidence in the present case to corroborate the complainant’s evidence and submits that, for this very reason, no purpose would be served in requiring the trial judge to look for corroborative evidence. Counsel submits that the judge’s failure to warn herself of the dangers of convicting the Applicant in the absence of corroborative evidence was not fatal to the conviction. Her Judgment shows that she had considered all the evidence in detail and had evaluated all the evidence with special care. She had good reasons for accepting the evidence of the complainant and rejecting that of the Applicant, and no injustice had been caused. The judge very well knew and had carefully considered the complainant’s admission that she had fabricated a story. In the circumstances, the Applicant’s conviction is legitimate and proper. Counsel submits that the crux of the matter is not whether the trial judge stated in her Judgment that she had warned herself as aforesaid, but is whether she had in fact considered the evidence with extra caution. The Judgment shows that she had indeed been particularly careful in approaching the evidence. It would have been pointless for her to make mention of a warning in her Judgment if she had not in fact been particularly careful. Counsel also points out that there have been gradual changes to the legal rules regarding the requirements of corroborative evidence and the need for the judge to warn the jury or himself of the dangers of convicting without such evidence. The rule regarding corroboration of an accomplice’s evidence has been abolished by Section 60 of the Criminal Procedure Ordinance (Cap. 221), whereas the rule regarding corroboration of a child’s evidence has been abrogated by Section 4A of the Evidence Ordinance (Cap. 8). As for the rule regarding corroboration of evidence in respect of sexual offences, it was abolished in England in 1994, and the Hong Kong government is currently formulating proposals to amend the relevant legislation with a view to abolishing the rule, and the proposals will be tabled with the Legislative Council in March 1999. In light of the above, the fact that the trial judge did not mention in her Judgment that she had warned herself as aforesaid does not necessarily mean that the conviction must be quashed.", "zh-HK": "代表控方的梁大律師承認，在本案中並無任何獨立的証據作為女事主証供的佐証，因此要求原審法官尋求輔助証據只屬徒然。大律師認為法官沒有提醒自己缺乏佐証而定罪的危險性便判申請人有罪，並不會構成對裁決產生致命的後果。原審法官的判詞顯示她曾詳細考慮及加倍小心研究所有証供及証據，她是有足夠理據接納女事主的証供和拒絕接納申請人的証供，因此並沒有做成不公平的情況。原審法官對女事主曾經承認虛構故事亦已很清楚，並且加以仔細考慮。所以申請人的定罪裁決是合乎法理及並無不妥之處。大律師認為最重要的是法官有沒有確實加倍慎重考慮証供而不是有沒有在書面上寫出他曾經對自己作出警告。根據判決書，原審法官實際上已經做到了特別小心。如果法官只是在書面上提及警告但事實上卻沒有加倍小心，這亦是徒然的。大律師更指出對於輔助証供的需求及法官向陪審團或自己就沒有輔助証供而定罪的危險性作出警告的這些法律上的成規，已經逐漸有所改變。根據《刑事訴訟程序條例》第221章第60條，有關從犯証供佐証的成規已經廢除。有關兒童証供佐証的成規也被《証據條例》第8章第4A條所取消。至於有關性犯罪案中証供佐証的成規在英國亦於1994年予以廢除。政府目前正進行修改條例將有關性犯罪案中証供佐証的成規取消，這些修訂法案將會在1999年3月提交立法會審議。因此如果法官在判決書中沒有提及對自己提出警告而判被告有罪，並不一定須要把裁決撤銷。" } }, { "doc_id": 130, "seg_id": 10, "translation": { "en": "In our view, as far as sexual offences are concerned, it is easy for the complainant to make an allegation but difficult for the accused to refute it, and from time to time complainants may, for reasons unbeknown to the judge or jury, give false evidence. To deal with these problems, the law has laid down a requirement that the judge, in directing the jury or himself, has to issue a warning of the dangers of convicting a defendant on the uncorroborated evidence of a complainant. However, if, having been so warned, the jury or judge still firmly believes the complainant’s evidence, they are still entitled to convict the defendant on the uncorroborated evidence. In the absence of such a warning, the conviction will normally be overturned. In cases tried by a judge with jury, it is usually easy to ascertain whether the judge has issued such a warning. On the other hand, in cases tried by a judge sitting alone without a jury or in cases tried by a magistrate, it is often not clear whether the judge or magistrate warned himself as aforesaid before he arrived at the verdict. Almost all of the judicial precedents in the UK involve convictions being overturned by reason of the judge’s failure to warn the jury, and there are fewer precedents which involve the judge failing to mention in the judgment that he had warned himself.", "zh-HK": "本庭認為，在性犯罪案件中，投訴人的指控通常是易於提出但是難以反駁，而且投訴人不時因為一些原因可能作出虛假的証供，而這些原因未必是法官或陪審團能夠知道的。因此，在法律上有成規要求法官在引導陪審團或在自己判案時需要提出警告，就是在沒有輔助証據的支持下，單靠事主的証供而判被告有罪是危險的，不過如果陪審團或法官經過警告以後，仍然對投訴人所作出的証供深信不疑，他們是可以在沒有佐証的情況下判被告有罪的。如果沒有提出這樣的警告，那麼有罪的裁決通常是會被推翻的。在有陪審團的案件中，法官有沒有作出這種警告，通常是一目了然。不過在沒有陪審團的案件中，就是只有法官或裁判官一人審訊時，在作出判決前，有沒有對自己提出警告，便沒有那麼清楚了。差不多所有的英國判例都是法官沒有向陪審團提出警告以致有罪的裁決被推翻。有關法官沒有在判案時或在判決書中沒有提及曾向自己提出警告的先例則較少。" } }, { "doc_id": 130, "seg_id": 11, "translation": { "en": "In our view, however, it is one thing to say that the judge failed to warn himself of the dangers of convicting an accused on uncorroborated evidence before he delivered the verdict, and it is quite another thing to say that the judge did or did not mention in his Judgment that he had so warned himself. Closely related as they are, these two scenarios pose distinct issues. In R v. CHAN Siu-wong, Rigby CJ, after emphasizing the importance of issuing the warning to the jury or to the judge himself, came to the following conclusion:", "zh-HK": "不過，本庭認為法官在判案前有沒有對自己提出警告有關缺乏佐証定罪的危險性是一回事，但是在裁決書中有沒有提及曾向自己提出警告則是另一回事。雖然兩者有很大的關連，但却是兩個不同的問題。在R. v. CHAN Siu-wong一案中，首席法官李比爵士曾強調法官向陪審團或自己作出警告的重要性，然後作出以下評論：" } }, { "doc_id": 130, "seg_id": 12, "translation": { "en": "“ In so far as Magistrates Courts are concerned, we are fully satisfied that it remains the duty of a magistrate to make it apparent in his judgment or grounds of decision that he has warned himself of the danger of convicting upon the uncorroborated testimony of an accomplice.” (at page 67)", "zh-HK": "「就裁判法院而言，本庭確實認為裁判官是有責任在他的判詞或裁決理由中明確表明他曾經向自己警告有關在缺乏佐証下依靠從犯的証供而定罪的危險性。」（第67頁）" } }, { "doc_id": 130, "seg_id": 13, "translation": { "en": "“The learned trial judge having failed to record that he gave himself, in any terms whatsoever, the warning which in our view was, and is, essential in such cases, we are satisfied that the conviction on this count must be quashed.” (at page 68)", "zh-HK": "「原審法官卻沒有記載他曾以任何方式向自己提出警告。本庭認為這項警告在該等案件中是必要的，本庭認為就這項控罪上的定罪必須被撤銷。」（第68頁）" } }, { "doc_id": 130, "seg_id": 14, "translation": { "en": "In R v. CHAN Yuet-shing, Jones J made the following observations:", "zh-HK": "在R. v. CHAN Yuet-shing一案中，鍾士法官有以下的判詞：" } }, { "doc_id": 130, "seg_id": 15, "translation": { "en": "“The necessity for a warning to be given is because a sexual complaint can easily be made, but it is difficult to refute. It is abundantly clear that it is essential for a magistrate to make a specific reference in his findings to the fact that he has warned himself of the dangers of convicting without corroboration when he is trying a sexual offence. Although the magistrate in the instant case may have had the matter of corroboration in his mind he does not say so. Accordingly upon his failure to deal with this issue the conviction must be quashed.”", "zh-HK": "「需要提出警告是因為性犯罪的投訴容易提出但很難反駁。很明顯的，在審理性犯罪案件時，裁判官必須在他的事實裁決書中特別提及他曾經向自己提出警告沒有佐証而定罪是危險的。雖然裁判官在本案中可能有顧及佐証的問題，但是他並沒有說明。因為他沒有處理這點，所以定罪必須撤銷。」" } }, { "doc_id": 130, "seg_id": 16, "translation": { "en": "From this, it can be seen that Rigby CJ equated the fact that the Judgment made no mention of the judge having warned himself with the assertion that the judge had in fact not warned himself. The conviction must, for this reason be quashed. Similarly, Jones J took the judge’s duty to warn himself to mean that the judge must mention in the Judgment that he had warned himself.", "zh-HK": "由此可見，李比爵士把法官在判決書上沒有提及曾經對自己提出警告等同法官對自己沒有提出警告，因此有罪的裁決必須被撤銷。同樣可以看出鍾士法官將裁判官必須向自己提出警告的責任，變成為裁判官必須在判決書中提及他曾經對自己作出警告。" } }, { "doc_id": 130, "seg_id": 17, "translation": { "en": "In our view, whether the judge has warned himself is distinct from whether the Judgment makes mention of the judge having warned himself. There is no hard-and-fast rule that a guilty verdict must be set aside where the judge did not mention in his Judgment that he had warned himself. The core issue is whether the judge warned himself before he delivered his verdict and whether he took extra care in evaluating the case so as to avoid the risk of arriving at a wrong verdict. If the Judgment shows that the judge has not dealt with the complainant’s evidence with extra caution, the mere mention of his having warned himself will not serve any purpose apart from being unfair to the defendant. We do not think the appellate court is required to quash a conviction solely because the judge or magistrate did not mention in his Judgment that he had warned himself. Rather, the appellate court should consider the case as a whole, as well as other factors, including whether the judge or magistrate has dealt with the prosecution evidence, particularly the complainant’s evidence, with special care. Where the judge or magistrate has in fact dealt with the prosecution evidence and other circumstances with special care and attention, and the evidence is overwhelming, then the appellate court should not assume that, if the Judgment is silent as to whether the judge has warned himself, then the judge must have failed to warn himself. In other words, whether the Judgment makes mention of the judge having warned himself is not in itself decisive.", "zh-HK": "本庭認為法官有沒有對自己作出警告與在判決書中有沒有提及他曾經對自己作出警告是有不同的，不能因為法官在判決書中沒有提及曾經對自己提出警告，便一成不變地必須把有罪的裁決撤銷。最重要的是法官在作出判決前有沒有向自己提出警告，在衡量案情的時候有沒有加倍小心提防有錯判的危險。如果法官只是事後在判決書上提出曾經警告自己，但整個判詞却顯示出他並沒有加倍小心處理投訴人的証供，那麼空言曾經向自己提出警告，只是自欺欺人，反而會對被告做成不公平的後果。本庭認為上訴法庭不必只因為法官或裁判官沒有在判決書中提及他曾經向自己提出警告便一定要把有罪的裁決撤銷，而是應該考慮整件案情及其他因素，包括法官或裁判官有沒有特別小心考慮控方的証據尤其是投訴人的証供。如果法官或裁判官確實對控方的証據及其他因素有特別小心詳細考慮，而當中証據又非常充足，上訴法庭是不應該假定如果法官或裁判官沒有在判決書中提及對自己提出警告，便必定沒有向自己提出警告。換一句話來說，在判決書上有沒有提及曾向自己作出警告不一定是有決定性的。" } }, { "doc_id": 130, "seg_id": 18, "translation": { "en": "Nevertheless, in cases involving sexual offences, whether the complainant’s evidence is corroborated is a question that the judge or magistrate has to take note of at the outset. This is not only highly relevant to the guilt or otherwise of the defendant, but is, indeed, virtually the most fundamental question in the whole case. This question, therefore, must be very much alive in the judge’s or magistrate’s mind throughout the trial. It follows that the judge or magistrate must specifically warn or remind himself of the importance of corroborative evidence and the dangers of convicting the defendant on uncorroborated evidence. Precisely for this reason, the judge or magistrate will certainly have this question in mind when he delivers judgment or prepares the written judgment thereafter. If he has dealt with the case properly, then there is no reason why he will not specifically address that question in his verbal or written judgment. Accordingly, if a judge or magistrate makes no mention, whether in the verbal judgment or in the Reasons for Verdict, of the importance of corroborative evidence and the dangers of convicting without such evidence, then generally speaking this probably suggests that he has omitted this fundamental question, because any reasonable judge or magistrate would certainly have applied his mind to and addressed the question. Therefore, if no mention is made of this question in the verbal or written judgment, then, unless there are special reasons or circumstances, the appellate court should have no difficulty in inferring that the judge or magistrate concerned did not have that question in mind when he was arriving at his verdict. This conclusion is also reasonable. This was also the conclusion of Rigby CJ in R v. CHAN Siu-wong and of Jones J in R v. CHAN Yuet-shing, although neither of the two learned judges stated the reasons behind.", "zh-HK": "不過，在性犯罪案件中，對於投訴人的証供有沒有輔助証據，是法官或裁判官從開審時便應注意的問題。這個問題對於被告有沒有罪不單是非常重要，而且差不多是整件案件中最基本的問題。因此這個問題在整個審訊過程中，必須是在法官或裁判官的腦海裡經常浮現的問題。所以法官和裁判官應該特別警惕和提示自己佐証的重要性和沒有輔助証據而定罪的危險性。正因如此，法官或裁判官在判案時或在判案後寫判決書的時候，必會注意到這個問題。假如他是正確地處理案件的話，沒有理由會不特別在判案時及裁決書中提及。因此如果一位法官或裁判官在口頭判詞或判決書中沒有提及輔助証據的重要性和警告自己缺乏佐証而定罪的危險性的話，在一般的情況下，很大可能這顯示出他可能忽略了這個基本的問題。因為如果是這樣一個基本的問題，一位合理的法官或裁判官是必然會注意到和提及到的。所以如果真的在口頭判詞或書面裁決書中沒有提及，除非有特別的理由或在特殊的情況之下，上訴法庭很容易便會作出推論，這個法官或裁判官在判案的時候沒有把這個基本的問題牢記在心中。這個結論亦是合理的。這便是李比爵士在CHAN Siu-wong一案和鍾士法官在CHAN Yuet-shing一案中所作的結論，只不過他們沒有詳細道出箇中原因來。" } }, { "doc_id": 130, "seg_id": 19, "translation": { "en": "In the present case, the trial judge had not in her written judgment referred to corroborative evidence or the dangers of convicting without such evidence. It is true that she had closely examined the complainant’s evidence, but it is by no means clear whether she had taken special care or had reminded herself to do so. In the present case, the complainant’s evidence against the Applicant was uncorroborated. She had told the police that she had been raped by the Applicant, but then admitted to the police and in court that it was untrue. She also pointed out the circumstances in which the alleged sexual intercourse was discovered, namely when she was residing at the home for the children, and her father had asked her to undergo a physical examination before making any allegation against the Applicant. The complainant from time to time went to and stayed at the Applicant’s premises with other children. There was also evidence that the complainant had previously run away from home and stayed at the home of a married couple. These facts made it very dangerous to convict the Applicant in the absence of corroborative evidence. The trial judge should have exercised special care. In the circumstances, it was absolutely necessary for her to warn herself accordingly. Rather surprisingly, her written judgment was silent on this point, and one is concerned about whether she had properly warned herself of the dangers of convicting on uncorroborated evidence. In such circumstances, we take the view that there are lurking doubts about the Applicant’s conviction, which is thereby rendered unsatisfactory.", "zh-HK": "在本案中原審法官在書面裁決書中並沒有提及輔助証據或缺乏佐証定罪的危險。無可否認，她對於女事主的証供已經詳細的加以分析。不過有沒有特別小心或提醒自己需要特別小心則不得而知。在本案中女事主指控申請人的証供並無佐証。她又曾向警方聲稱被申請人強姦，其後向警方及在法庭上坦然承認這是虛構的。女事主並指出本案所指的性行為是在甚麼情況下揭發的，就是她是在兒童院內的期間，她的父親要求她進行身體檢驗後才對申請人作出指控。女事主亦經常與其他青少年到申請人住所玩耍及逗留。又有証據顯示女事主曾離家出走，及在一對夫婦家中居住。正因為有了這些事實，沒有佐証而定罪的危險性是很大的。原審法官更應特別留意加倍小心。因此在本案的上述各情況下向自己提出警告是絕對需要的。原審法官在她的判決書中竟然沒有提及這一點，實在使人覺得有點不安，懷疑她究竟有沒有有效地提醒自己缺乏佐証定罪的危險性。因此本庭認為在這種情況下，有罪的裁定是具有值得懷疑的地方，並且是不穩當的。" } }, { "doc_id": 130, "seg_id": 20, "translation": { "en": "In the present case, apart from the complainant’s evidence against the Applicant, there was no other evidence to show that the two of them had had sexual intercourse. In such circumstances, we do not consider it appropriate to apply the proviso to Section 83(1) of the Criminal Procedure Ordinance (Cap. 221).", "zh-HK": "在本案中只有女事主的証供對申請人不利，沒有其他証據顯示申請人與女事主發生性行為。在這種情況下，本庭認為運用《刑事訴訟程序條例》香港法例第221章第83（1）條的「但書」是不適合的。" } }, { "doc_id": 130, "seg_id": 21, "translation": { "en": "Turning to the fourth ground of appeal, Counsel submits that the trial judge had misinterpreted a response given by the Applicant to the police in his cautioned statement. When asked whether the complainant had been to his residence in July 1997, the Applicant answered “She has been there many times, I can’t remember.” At trial, however, he said the complainant had not been to his residence. The trial judge considered this inconsistent and, on that basis, concluded that the Applicant was unreliable. In our view, there might have been some ambiguity in the aforesaid answer that the Applicant gave to the police, but that answer and what he said at trial were, respectively, the evidence he provided to the police and to the court, and if there were ambiguities, it was for him to provide an explanation and clarification. If there had been any misunderstanding, it was caused by nothing other than his failure to express himself clearly. Furthermore, in light of the evidence, the aforesaid answer could not have been the sole basis upon which the trial judge cast doubts on the credibility of the Applicant’s evidence. Accordingly, this ground of appeal must fail.", "zh-HK": "至於第四項上訴理由，大律師說原審法官曲解了申請 人在警誡詞中向警員的一個回答。申請人被警員查問女事主在1997年7月有沒有到過他家裡，申請人答覆說「佢去過好多次，我都唔記得了」。不過在法庭上，他却說女事主沒有到過他的住所。法官認為這是前言不對後語，因此申請人並不可信。申請人向警方作出的這個答案可能是有些不清楚的地方，但是這一個答案和在庭上的答案是申請人給警方及法庭的口供，如果有任何含糊不清的地方，是應該由他自己解釋及加以澄清的，如果引起任何誤會，這是他自己沒有表達清楚的原故。而且根據本案的証供，本庭認為原審法官不是單憑這一個答案便懷疑申請人的証供的可信性。因此第四項上訴理由並不成立。" } }, { "doc_id": 130, "seg_id": 22, "translation": { "en": "For the above reasons, we are satisfied that the Applicant’s conviction is unsatisfactory. We therefore grant leave to appeal and, treating the hearing of the application as the appeal, allow the appeal. The trial judge’s verdict is set aside and the Applicant is acquitted.", "zh-HK": "基於上述各種理由，本庭認為申請人的有罪裁決並不穩當，因此批准申請人上訴，把上訴申請的聆訊視為上訴聆訊，並判他上訴得直，原審法官的裁判予以推翻，上訴人無罪釋放。" } }, { "doc_id": 130, "seg_id": 23, "translation": { "en": "Mr Chan Siu Ming, assigned by the Legal Aid Department, for the Applicant.", "zh-HK": "上訴申請人 :由法律援助署委派陳銚明律師代表" } }, { "doc_id": 130, "seg_id": 24, "translation": { "en": "Mr S K Leung, Deputy Director of Public Prosecutions and Mr Stanley Chan, Senior Government Counsel, for the Respondent.", "zh-HK": "上訴答辯人 :由梁兆基(副刑事檢控專員)及陳廣池(高級政府律師)代表" } }, { "doc_id": 131, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the Judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案書：" } }, { "doc_id": 131, "seg_id": 2, "translation": { "en": "Application for leave to appeal against sentence", "zh-HK": "刑期上訴許可申請" } }, { "doc_id": 131, "seg_id": 3, "translation": { "en": "On 6 October 2008 the applicant pleaded guilty before Deputy District Judge Anthony Kwok to two counts of trafficking in dangerous drugs. Charge 1 involved 7.77 grammes of cocaine in solid form and 1.81 grammes of ketamine in powder form, whereas Charge 2 involved 11.36 grammes of cocaine in solid form and 37.71 grammes of ketamine in powder form. The two offences therefore involved 19.13 grammes of cocaine and 39.52 grammes of ketamine in total. Judge Kwok sentenced the applicant to imprisonment for 58 months. The applicant now seeks leave to appeal against sentence.", "zh-HK": "申請人於 2008 年 10 月 6 日在區域法院暫委法官郭啟安席前承認兩項「販運危險藥物罪」。第一項控罪的危險藥物是含 7.77 克「可卡因」的固體及含 1.81 克「氯胺酮」的粉末。第二項控罪的危險藥物是含 11.36 克「可卡因」的固體及含 37.71 克「氯胺酮」的粉末。兩種危險藥物的總數量分別為 19.l3克的「可卡因」及 39.52克的「氯胺酮」。郭法官判處申請人五十八個月監禁。申請人現就刑期提出上訴許可申請。" } }, { "doc_id": 131, "seg_id": 4, "translation": { "en": "Facts", "zh-HK": "案情" } }, { "doc_id": 131, "seg_id": 5, "translation": { "en": "The facts showed that on 14 March 2008, police officers intercepted the applicant outside the entrance of a building in High Street, Sai Ying Pun and found a key on his person, which was a key to the applicant’s residence in that building. On the strength of a search warrant granted by the court, the police officers entered the flat with the applicant immediately. A search was first conducted on the applicant inside the flat. From his underpants a large plastic bag was found, which contained three packets of dangerous drugs (i.e. the dangerous drugs referred to in Charge 1) and 15 re-sealable transparent plastic bags. Besides, the police found from the applicant’s bed 16 bags of dangerous drugs (i.e. the dangerous drugs referred to in Charge 2).", "zh-HK": "案情顯示 2008 年 3 月 14 日，警員在西營盤高街一幢大廈門外截停申請人，並在他身上搜出一條鑰匙，它是申請人在該幢大廈的住所鑰匙。由於當時警員已持有法院頒發的搜查令，所以隨即與申請人進入該單位。警員在單位內首先替申請人搜身，警員從他的內褲搜出一個大膠袋，內藏三包危險藥物（即控罪一的危險藥物）及十五個可再封式透明膠袋。另外，警員在申請人的床上搜獲十六袋危險藥物（第二項控罪的危險藥物）。" } }, { "doc_id": 131, "seg_id": 6, "translation": { "en": "Sentencing approach", "zh-HK": "量刑方式" } }, { "doc_id": 131, "seg_id": 7, "translation": { "en": "The Court of Appeal has set forth in a number of decisions the two sentencing approaches to be adopted in respect of a defendant who trafficked in more than one type of dangerous drugs:", "zh-HK": "上訴法庭已在多宗案例中闡述法庭在處理被告人販運超過一種危險藥物時所採用的兩種量刑方法：" } }, { "doc_id": 131, "seg_id": 8, "translation": { "en": "The first approach is the “individual approach” where an appropriate starting point is determined for each type of dangerous drug, and they are then combined into an overall starting point prior to any discount;", "zh-HK": "第一種方法是「個別方式」，即將每一類別的危險藥物的適當量刑基準加起來作為在未給予扣減之前的量刑基準；" } }, { "doc_id": 131, "seg_id": 9, "translation": { "en": "The second approach is the “combined approach” where a starting point is determined for the most serious type of dangerous drug, and it is then adjusted upwards in light of the quantity of the less serious drug in order to arrive at the ultimate starting point; but no such adjustment is required if the less serious drug is present in insignificant quantity.", "zh-HK": "第二種方法是「綜合方式」，即先以其中一種較嚴重類別的危險藥物作為量刑基準，然後以另一種危險藥物的分量來作出調整，以得出一個最終的量刑基準；但若後者的分量少的話，法庭就無須調整量刑基準。" } }, { "doc_id": 131, "seg_id": 10, "translation": { "en": "Where the “combined approach” is taken, the court will rely on common sense in determining which type of the dangerous drugs is to be regarded as the more serious, hence forming the basis of the starting point. For example, a certain type of drug, although less potent, may be present in much larger quantity than another, in which case its quantity will form the basis for the starting point. On the other hand, if the two types of drugs are present in similar quantities, the quantity of the drug of greater potency will provide the basis for the starting point.", "zh-HK": "法庭採用「綜合方式」時是以常識來判斷哪一類危險藥物是較嚴重的類別以作為量刑基準的考慮基礎，例如某一類危險藥物的毒性雖然較低，但它的分量卻明顯較另一種危險藥物為多的話，法庭就會基於這種危險藥物的分量來作出一個量刑基準；但若兩種危險藥物的分量是相約的話，法庭就會基於毒性較強的一種危險藥物的分量來作出一個量刑基準。" } }, { "doc_id": 131, "seg_id": 11, "translation": { "en": "As a rule of practice, where the sentencing brackets for the two types of dangerous drugs are not dissimilar, it is appropriate to adopt the “combined approach”; where, on the other hand, the two drugs are disparate in quantity and potency, the “individual approach” is to be preferred.", "zh-HK": "一個實際可行的方法是如兩種危險藥物的個別量刑幅度相差不遠的話，「綜合方式」是較為適合的；但若兩種危險藥物無論在分量或毒性的差別都很大時，法庭採用「個別方式」是較為適當的做法。" } }, { "doc_id": 131, "seg_id": 12, "translation": { "en": "The appropriate approach to be adopted is a matter of discretion for the sentencing court, to be exercised in light of the circumstances of the particular case. No matter which approach is taken, the paramount consideration at the end of the day is the totality of the overall starting point, see: HKSAR v. Chan Ho Wai (CACC 129/2008); HKSAR v. Yip Wai Yin and another [2004] 3 HKC 367; HKSAR v. Cheung Kwok Leung [2003] 3 HKLRD 542; HKSAR v. Yip Pik Kwai [1999] 3 HKLRD 42.", "zh-HK": "法庭無論採用哪一種方式都是行使其酌情權，它要因應每宗案件的獨特情況來決定哪種方式較為適合。無論法庭採用哪一種方式，最重要的是它必須考慮最終量刑基準的整體性，見：HKSAR v. Chan Ho Wai（陳浩維）(CACC 129/2008)， HKSAR v. Yip Wai Yin and another [2004] 3 HKC 367; HKSAR v. Cheung Kwok Leung [2003] 3 HKLRD 542; HKSAR v. Yip Pik Kwai [1999] 3 HKLRD 42。" } }, { "doc_id": 131, "seg_id": 13, "translation": { "en": "To the above principles, we would add the following observations:", "zh-HK": "除了上述原則外，本庭有以下的補充意見：" } }, { "doc_id": 131, "seg_id": 14, "translation": { "en": "In respect of a mixture of different types of dangerous drugs, i.e. the so-called “cocktail drugs” or “designer drugs”, which usually involves the use of one of the components to enhance the potency of another, it is more appropriate for the court to adopt the “combined approach” in determining the starting point.", "zh-HK": "若果某些不同種類別的危險藥物被混和在一起，即所謂「混合危險藥物」或「雞尾酒危險藥物」(cocktail drugs)，又或是「設計師危險藥物」(designer drugs)，法庭採用「綜合方式」來考量其量刑基準是較為適合的，因為這類混合危險藥物一般都利用其中一種危險藥物來加強另一種危險藥物的毒性。" } }, { "doc_id": 131, "seg_id": 15, "translation": { "en": "In fact, whichever approach is adopted, the court will inevitably have to fix a sentence for each type of drug and then make adjustments as appropriate, in order to avoid the absurdity referred to in Yip Wai Yin: where the “individual approach” is adopted, the addition of the sentences for each individual drug may lead to a far higher overall sentence than if the whole quantity of the mixture merely contained the more or most serious of the various drugs.", "zh-HK": "其實，無論法庭採用哪一種方式來考量刑基準都是無可避免地需要定出每一類危險藥物的個別刑期，然後再作出調整，這才可以避免出現如 Yip Wai Yin 一案所提到的荒謬情況：即若果採用「個別方式」，將所有個別危險藥物的刑期加起來後，它們刑期的總和可能會遠超過混合物其中較為嚴重的危險藥物，但假設其分量是與個別危險藥物總數相等的刑期。" } }, { "doc_id": 131, "seg_id": 16, "translation": { "en": "The calculations made by Judge Kwok", "zh-HK": "郭法官的計算方法" } }, { "doc_id": 131, "seg_id": 17, "translation": { "en": "In the present case, Judge Kwok adopted the “individual approach”. He first considered the starting point for each of the two types of dangerous drugs and then arrived at an overall starting point.", "zh-HK": "在本案，郭法官是採用「個別方式」。他先考慮兩種不同危險藥物之個別量刑基準，然後作出一個整體性的量刑基準。" } }, { "doc_id": 131, "seg_id": 18, "translation": { "en": "First of all, Judge Kwok considered that the appropriate sentence for 19.13 grammes of cocaine should be 68 months’ imprisonment (the sentencing guidelines in Lau Tak Ming for trafficking in heroin are applicable to sentencing for trafficking in cocaine, see AG v. Pedro Nel Rojas [1994] 2 HKLRD). Judge Kwok accepted that cocaine was more potent than ketamine. However, as much as 39.52 grammes of ketamine was involved in the present case and, upon the sentencing guidelines then applicable, the relevant starting point was 27 months’ imprisonment (the starting points for ketamine and ecstasy were then the same, see Lee Tak Kwan [1998] 2 HKLRD 46 and HKSAR v. Leung Chun Fung [2003] 2 HKLRD 282). In the end, Judge Kwok adopted 87 months’ imprisonment as the overall starting point and, giving the one-third discount for the guilty plea, reduced the term to 58 months.", "zh-HK": "首先，他裁定 19.13 克「可卡因」的刑期應為六十八個月監禁（劉德明一案有關販運「海洛英」量刑指引適用於販運「可卡因」刑期，見AG v. Pedro Neil Rojas [1994] 2 HKLRD）。郭法官認同「可卡因」的毒性比「氯安酮」為高，但本案的「氯安酮」總分量高達 39.52 克，若採用當時適用的量刑指引，有關的量刑基準是二十七個月監禁（當時「氯安」與「狂喜」、「忘我」的量刑基準是相同的，見：李德軍 [1998] 2 HKLRD 46及HKSAR v. Leung Chun Fung [2003] 2 HKLRD 282）。最終，郭法官採用八十七個月監禁作為整體量刑基準，在扣減申請人認罪的三分一之後，刑期為五十八個月監禁。" } }, { "doc_id": 131, "seg_id": 19, "translation": { "en": "Ground of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 131, "seg_id": 20, "translation": { "en": "Mr. Hung, Counsel for the applicant, points out that, assuming all the 58.65 grammes of dangerous drugs in question were the more serious type of drug, namely cocaine, then according to the guidelines, the appropriate starting point would be 8 years (i.e. 96 months). However, on the “individual approach” that Judge Kwok adopted, the two starting points of 68 months and 27 months added up to 95 months, which was almost the same as the said notional starting point of 96 months. It is therefore submitted that the “individual approach” was unfair to the applicant.", "zh-HK": "代表申請人的孔慶碩大律師指出，假設涉案的全部 58.65 克危險藥物都是較嚴重類別的危險藥物類別「可卡因」，根據指引適當的量刑基準是八年（即九十六個月）監禁，但郭法官若採用「個別方式」，將兩個分別為六十八個月及二十七個月監禁的量刑基準合起來計算，即是九十五個月監禁，這與上述假設的量刑基準幾乎一樣，所以採用這個方式對申請人是不公平的。" } }, { "doc_id": 131, "seg_id": 21, "translation": { "en": "Our opinion", "zh-HK": "本庭的意見" } }, { "doc_id": 131, "seg_id": 22, "translation": { "en": "Given the two types of dangerous drugs in the present case appeared not as a mixture but in separate packages, we do not think that Judge Kwok erred when he adopted the “individual approach” in determining the starting point. In adopting this approach, Judge Kwok had considered the principles in Chan Ho Wai as well as the potency and quantities of the dangerous drugs in question. As Judge Kwok did not arrive at the overall starting point by simply adding up the two individual starting points, the absurdity referred to in Yip Wai Yin did not arise. Judge Kwok merely adjusted the starting point of 68 months upwards to 87 months.", "zh-HK": "本案的兩類危險藥物是個別包裝的，它們並非混合在一起的混合危險藥物。在這情況下，本庭不認為郭法官採用「個別方式」來考慮量刑基準是錯誤的做法，他採用這方式時已經考慮過陳浩維一案的原則及本案的危險藥物的毒性及分量。由於郭法官沒有將兩項刑期加起來作為一項最終量刑基準，所以本案並沒有出現如Yip Wai Yin 案的荒謬現象。他只是將六十八個月監禁的量刑基準上調至八十七個月監禁。" } }, { "doc_id": 131, "seg_id": 23, "translation": { "en": "In fact, the fundamental issue in the present case is whether the starting point of 87 months adopted by Judge Kwok was at variance with the totality principle. In view of the large quantities of the two types of dangerous drugs in question, we do not consider the starting point of 87 months manifestly excessive. The application is dismissed accordingly.", "zh-HK": "其實本案的最終爭議點是郭法官所作出的八十七個月監禁的量刑基準是否與刑期的整體性原則有所抵觸。本案的兩種危險藥物的分量都非常多，在這情況下本庭不認為八十七個月監禁的量刑基準是明顯過高，本庭因此駁回申請。" } }, { "doc_id": 131, "seg_id": 24, "translation": { "en": "Ms. Olivia Tsang, Senior Public Prosecutor, for the Respondent.", "zh-HK": "答辯人：由律政司說級檢控官曾藹琪代表。" } }, { "doc_id": 131, "seg_id": 25, "translation": { "en": "Mr. Andy Hung, instructed by the Legal Aid Department, for the Applicant.", "zh-HK": "申請人：由法律援助署轉聘孔慶碩大律師代表。" } }, { "doc_id": 132, "seg_id": 1, "translation": { "en": "The applicant (Ng Ah Shan) pleaded guilty to four charges of theft before District Judge Sham (the trial judge). The trial judge sentenced her to imprisonment for 30 months and also ordered her to compensate some of the victims for the loss of their cash money totalling approximately $3,700, such compensation to be paid out of the cash found upon search on the person of the applicant at the time of arrest.", "zh-HK": "申請人 (吳‍阿‍珊) 在區域法院法官沈‍小‍民 (原審法官)席前承認四項盜竊罪，被判入獄共30 個月。原審法官同時判申請人賠償部分受害人的現金損失，共約3,700 元，並下令賠償金額由申請人被捕時身上搜出的現金中支付。" } }, { "doc_id": 132, "seg_id": 2, "translation": { "en": "Represented by Mr Albert Luk of Counsel, the applicant applied for leave to appeal her sentence. After hearing, we allowed the applicant’s application for leave to appeal sentence and, treating the hearing as the appeal proper, allowed the appeal and reduced the total term of imprisonment from 30 months to 24 months. We now give reasons for our decision.", "zh-HK": "申請人不服判刑，由陸‍偉‍雄大律師提出申請，要求獲准就判刑上訴。經聆訊後，本庭批准申請人就判刑提出的上訴許可申請，並視其申請為正式上訴，本庭裁定申請人上訴得直，並將其總判刑由30 個月減至24 個月。以下是本庭的判案理由。" } }, { "doc_id": 132, "seg_id": 3, "translation": { "en": "Facts of the case", "zh-HK": "案情" } }, { "doc_id": 132, "seg_id": 4, "translation": { "en": "About 6:50 pm on the evening of 8 June 2013 and inside City Super Supermarket at Times Square, Causeway Bay, when the victim Ms Chung was preoccupied with shopping and making purchases, the applicant took the opportunity and stole Ms Chung’s purse from the handbag which Ms Chung had placed on the shopping trolley. The purse had a value of $6,000 and contained Ms Chung’s identity document(s), bank card(s), Octopus card(s) and cash of HK$3,200 and RMB ¥300. (Charge 1)", "zh-HK": "2013 年 6 月 8 日晚上約 6 時 50 分，申請人在銅鑼灣時代廣場City Super超級市場內趁受害人鍾‍女士全神選購貨品期間，盜取了她放在購物車上的手袋內，價值6,000 元之錢包，錢包內有鍾‍女士的身份證明文件、銀行卡、八達通卡，現金3,200港‍元及300元人民幣。(第一項控罪)" } }, { "doc_id": 132, "seg_id": 5, "translation": { "en": "Around 8 pm of the same day and inside a shop called Candy Magic in a shopping mall in East Point Road, Causeway Bay, the applicant stole a smart phone with cover case, valued at $5,000, which a saleslady Ms Lee had placed on the table next to the cashier counter. (Charge 2)", "zh-HK": "同日晚上約 8 時，申請人在銅鑼灣東角道一商場內的Candy Magic店舖盜取了售貨員李‍女士放在收銀處旁枱上的智能電話連套，價值5,000 元。(第二項控罪)" } }, { "doc_id": 132, "seg_id": 6, "translation": { "en": "About 10 minutes later, inside a shoe shop in the same shopping mall, the applicant stole a purse from a customer, Ms Choi, who was preoccupied with trying on shoes. The purse contained articles belonging to Ms Choi, such as her identity document(s), bank card(s), Octopus card(s), and cash of $200. (Charge 3)", "zh-HK": "約 10 分鐘後，申請人在同一商場內的一鞋店盜取了正在忙於試鞋的顧客蔡‍女士的錢包，內有她的身份證明文件、銀行卡、八達通卡等物件及現金200 元。(第三‍項控罪)" } }, { "doc_id": 132, "seg_id": 7, "translation": { "en": "Around 8:30 pm of the same day, the applicant went to the supermarket inside Sogo Department Store in Causeway Bay where she “shoplifted” by taking goods of a total value of approximately $1,000, including a packet of beef, four packets of cherries, two packets of blueberries, 12 cartons of milk and three boxes of tea, and then leaving the supermarket without paying for those goods. (Charge 4)", "zh-HK": "同日晚上約 8 時 30 分，申請人再到銅鑼灣崇光百貨公司內的超級市場“高買”。她拿取了價值約 1,000 元的物品，包括一盒牛肉、4 盒車厘子、兩盒藍莓、12 盒牛奶及3 盒茶後，沒有付款便離開超級市場。(第‍四項控罪)" } }, { "doc_id": 132, "seg_id": 8, "translation": { "en": "The applicant’s act of “shoplifting” was uncovered by Mr Shek, a security officer at Sogo Department Store, following which the applicant was arrested. Subsequently, the police conducted a search and found on the person of the applicant most of the stolen properties belonging to Ms Chung, Ms Lee and Ms Choi. The police also seized from the person of the applicant cash of approximately HK$8,000, Renminbi ¥510 and some foreign currencies.", "zh-HK": "申請人的“高買”行為遭崇光百貨公司保安員石‍先生偵破，導致申請人被拘埔。其後警員在申請人身上搜獲鍾‍女士、李‍女士和蔡‍女士被盜取的大部分財物。警員同時檢取了申請人身上的港幣約 8,000 元、人民幣 510 元及其他外幣。" } }, { "doc_id": 132, "seg_id": 9, "translation": { "en": "The applicant’s background and grounds of mitigation", "zh-HK": "申請人的背景及求情理由" } }, { "doc_id": 132, "seg_id": 10, "translation": { "en": "The applicant, aged 40, was married in 1997 and divorced in 2006. She has one son and one daughter, aged 15 and 13 respectively, and their custody has been granted to the applicant’s ex-husband.", "zh-HK": "申請人40 歲，在1997 年結婚，但在2006 年離婚。申請人育有一對子女，年齡為15 歲及13 歲。該對子女的撫養權由申請人的離婚丈夫所得。" } }, { "doc_id": 132, "seg_id": 11, "translation": { "en": "The applicant has 25 criminal records, 24 of which are related to theft offences. Of the theft-related conviction records, some are for “shop theft” and some “pickpocketing”. The applicant has been sentenced to imprisonment a number of times for these offences, with the terms of imprisonment ranging from 14 days to 16 months.", "zh-HK": "申請人有 25 項刑事記錄，其中 24 項和盜竊罪行有關。部分盜竊罪行是“店舖盜竊”，部分是“扒竊”。申請人曾因該些罪行多次被判入獄，刑期由14 天至16 個月不等。" } }, { "doc_id": 132, "seg_id": 12, "translation": { "en": "In April 2012, the applicant was sentenced to imprisonment for 16 months for two counts of “pickpocketing” and two counts of “shop theft”. Soon after she completed serving that sentence and was released from prison, the applicant committed the theft offences in the present case.", "zh-HK": "申請人在 2012 年 4 月，因兩項“扒竊”罪行和兩項“店舖盜竊”罪行被判入獄16 個月。申請人是在服刑完獲釋後不久，便干犯本案的盜竊罪行。" } }, { "doc_id": 132, "seg_id": 13, "translation": { "en": "The applicant claims that she suffers from depression. In fact, after committing the aforementioned four offences in April 2012, she also put forward depression as mitigation, and in the end the court ordered that the terms of sentence for the said four charges were be run concurrently.", "zh-HK": "申請人指自己患有抑鬱症。事實上她在2012 年 4 月干犯了上述四項控罪後，亦以患有抑鬱症作為求情理由，結果獲法庭判四項控罪的刑期都同期執行。" } }, { "doc_id": 132, "seg_id": 14, "translation": { "en": "Trial judge’s reasons for sentence", "zh-HK": "原審法官的判刑理由" } }, { "doc_id": 132, "seg_id": 15, "translation": { "en": "The trial judge considered that Charges 1 to 3 were “pickpocketing” offences, although on the facts the offences involving Ms Lee and Ms Choi could be described as “walking away with another person’s property”.", "zh-HK": "原審法官認為第一至第三項控罪都屬“扒竊”罪行，雖然涉及李‍女士和蔡‍女士的罪行在情節上則可視為屬“順手牽羊”的情況。" } }, { "doc_id": 132, "seg_id": 16, "translation": { "en": "Applying the sentencing guidelines laid down in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1, the trial judge took the view that 15 months’ imprisonment was the starting point applicable to Charges 1 to Charge 3. The trial judge further considered that, in light of the applicant’s criminal records, the starting point should be enhanced by 9 months to 24 months. The trial judge adopted six months’ imprisonment as the starting point for the “shoplifting” offence in Charge 4.", "zh-HK": "原審法官根據HKSAR v Ngo Van Huy [2005] 2 HKLRD 1案定下的判刑指引，認為適用於第一至第三項控罪的量刑基準是15 個月監禁。原審法官認為以申請人的案底而言，量刑基準應上調9 個月至24 個月。原審法官以6 個月作為第四項“高買”罪的量刑基準。" } }, { "doc_id": 132, "seg_id": 17, "translation": { "en": "As the applicant pleaded guilty, the trial judge gave one-third discount to the abovementioned starting points and reduced the sentences to 16 months and 4 months respectively.", "zh-HK": "因申請人承認控罪，原審法官將上述量刑基準分別扣減三分一至16 個月和4 個月。" } }, { "doc_id": 132, "seg_id": 18, "translation": { "en": "The trial judge ordered that 6 months of the 16-month term for Charges 2 and 3, and 2 months of the 4-month term for Charge 4 were to be served consecutively to the 16-month term for Charge 1, resulting in a total term of 30 months.", "zh-HK": "原審法官下令第二項和第三項控罪的16 個月判刑中的6 個月及第四項控罪的4 個月判刑中的2 個月要和第一項控罪的16 個月刑期分期執行，而得出30 個月的總刑期。" } }, { "doc_id": 132, "seg_id": 19, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 132, "seg_id": 20, "translation": { "en": "Mr Luk, Counsel for the applicant contended that the trial judge should not have treated Charges 1 to 3 as “pickpocketing” offences and enhanced the starting point to 15 months’ imprisonment. Mr Luk submitted that what the applicant did only amounted to “walking away with another person’s property”, which means taking away properties belonging to victim who were momentarily inattentive. Mr Luk contended that as the offences committed by the applicant were not the same as “pickpocketing”, the trial judge should not have adopted the starting point applicable to “pickpocketing” in determining the applicant’s sentence.", "zh-HK": "代表申請人的陸‍偉‍雄大律師認為原審法官不應視申請人干犯的第一至第三項控罪為“扒竊”罪行而將量刑基準提升至15 個月監禁。陸‍大律師指申請人的罪行只屬“順手牽羊”，在受害人不為意的情況下盜取他們的財物。陸‍大律師認為申請人干犯的罪行和“扒竊”有別，故原審法官不應採納針對“扒竊”罪行的量刑基準來懲處申請人。" } }, { "doc_id": 132, "seg_id": 21, "translation": { "en": "In his written submission, Mr Luk further pointed out that as the applicant committed all the offences within a period of a few hours, all or most of the terms of imprisonment for those offences should run concurrently. Mr Luk submitted that at least the trial judge should not have ordered that 6 months of the term for Charges 2 and 3 and 2 months of the term for Charge 4 were to run consecutively to the 16-month term for Charge 1, which resulted in what Mr Luk submitted was a manifestly excessive total sentence of 30 months.", "zh-HK": "在其書面陳詞，陸‍大律師更指申請人是在數小時內干犯全部控罪，因此控罪的全部判刑應同期或大部分同期執行。陸‍大律師認為原審法官最少不應將第二和第三項控罪判刑中的6 個月及第四項控罪判刑中的2 個月要和第一項控罪的16 個月刑期分期執行而得出明顯過重的30 個月總刑期。" } }, { "doc_id": 132, "seg_id": 22, "translation": { "en": "Mr Luk also complained that the trial judge was unfair to the applicant in that he ordered the cash found on the person of the applicant to be used to compensate for the victims’ losses but did not grant the applicant any corresponding reduction in sentence.", "zh-HK": "陸‍大律師亦指原審法官下令將申請人身上搜出的現金用作賠償受害人的損失，但卻沒有因此而給予申請人刑期扣減，對申請人不公平。" } }, { "doc_id": 132, "seg_id": 23, "translation": { "en": "Mr Luk contended that, in the absence of evidence or information in support, the judge should not have regarded the cash seized on the person of the applicant as coming from the victims.", "zh-HK": "陸‍大律師認為原審法官不應視從申請人身上檢獲的現金源自各受害人，原因是沒有證據或資料支持上述看法。" } }, { "doc_id": 132, "seg_id": 24, "translation": { "en": "Upon consideration, Mr Luk conceded that there was no difference between the offences under Charges 1 and 3 and the offence of “pickpocketing”. However, he asserted that Charge 2 was akin to the offence of “walking away with another’s person property” and hence should warrant a shorter term of sentence. Mr Luk also accepted, albeit with some reluctance, that a reasonable inference was that part of the cash found on the person of the applicant came from the victims.", "zh-HK": "經探討後，陸‍大律師同意申請人干犯的第一及第三項控罪和“扒竊”罪沒有分別，但力稱第二項控罪較似“順手牽羊”的罪行，故刑期應較短。陸‍大律師亦勉強同意合理的推論是申請人身上搜獲的現金部分源自案件的受害人。" } }, { "doc_id": 132, "seg_id": 25, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 132, "seg_id": 26, "translation": { "en": "The offence of theft encompasses a wide variety of acts of dishonestly stealing properties belonging to others. Some of the theft offences are more serious whilst some are relatively minor, and therefore the Court of Appeal cannot lay down general sentencing guidelines which apply to all theft offences. That said, clear sentencing guidelines have been laid down by the Court of Appeal in respect of specific theft offences such as “breach of trust”, “pickpocketing” and “burglary”.", "zh-HK": "盜竊罪行涵蓋各類不誠實盜取他人財物的行為。有些盜竊罪行較嚴重，有些則較輕微，因此上訴法庭不能就全部盜竊罪行定出整體的判刑指引。但就個別性質的盜竊罪行，例如“違反誠信”、“扒竊”及“入屋犯法”等盜竊罪行，則上訴法庭有明確的判刑指引。" } }, { "doc_id": 132, "seg_id": 27, "translation": { "en": "In the case of Ngo Van Huy, the Court of Appeal laid down sentencing guidelines for the offence of “pickpocketing” committed in public places. According to those guidelines, the appropriate starting point for the offence of “pickpocketing” committed by a first offender in a public place is immediate imprisonment for 12 to 15 months, and the term of imprisonment will be enhanced if aggravating factors are present.", "zh-HK": "在Ngo Van Huy 案，上訴法庭就在公眾地方干犯的“扒竊”罪行，定下判刑指引。根據該指引，一名初犯者在公眾地方“扒竊”，適當的量刑基準是12-15 個月即時監禁，而如有其他的加重罪責因素，則判刑要向上調。" } }, { "doc_id": 132, "seg_id": 28, "translation": { "en": "In paragraph 9 of his judgment, Ma CJHC (as he then was) pointed out that the courts have to adopt a robust approach to sentencing in respect of the offence of “pick-pocketing” because, although the offence does not necessarily cause substantial economic loss to the victim, it will bring upon the victim considerable inconvenience. Ma CJHC emphasized that those acts which invaded the privacy of others in public places could be carried out very easily.", "zh-HK": "高等法院首席法官馬‍道‍立 (當時官階)在判案書第 9 段指出法庭要對“扒竊”罪行採納果斷的判刑，原因是“扒竊”罪行雖然不一定導致受害人蒙受嚴重的經濟損失，但卻會對他們造成極大之不便。馬‍法官強調該些在公眾地方侵佔他人私隱的行為亦是十分容易得手。" } }, { "doc_id": 132, "seg_id": 29, "translation": { "en": "Mr Luk initially took the stance that the offences committed by the applicant were merely “walking away with another person’s property” as opposed to “pick-pocketing”. “Walking away with another person’s property” is an analogy used to describe a person taking away another’s property in passing, and its meaning is not completely clear. If “walking away with another person’s property” is taken to mean that a defendant dishonestly takes away property carelessly left behind by another person or, conveniently seizing the opportunity presented by another person who inadvertently fails to keep his or her property in safe custody, takes that property away, then the offences committed by the applicant in the present case were not “walking away with another person’s property”. If “walking away with another person’s property” is taken to mean that the defendant preys on a negligent victim and, acting with premeditation and deliberately, steals a wallet or property placed next to the victim at the moment when the victim is inattentive, then this type of offence of “walking away with another person’s property” is essentially as serious in nature as the offence of “pickpocketing”. This type of offence is also committed in public places and also involves invading personal privacy and subjecting the victim to considerable inconvenience. As a matter of logic, we fail to see, for sentencing purposes, any real distinction between the case where the victim carried the wallet on his or her person or inside thebackpack he or she was carrying and the case where the victim placed his or her wallet on the supermarket trolley or on the table or chair close to him or her. While it might have been easier to steal a wallet placed beside the victim instead of carried on the victim’s person, this can never constitute a reason for passing a lenient sentence.", "zh-HK": "陸‍大律師原本立場是申請人的罪行只屬“順手牽羊” ，和“扒竊”有別。“順手牽羊”是比喻的說法，來形容順便拿走人家的東西，其含義並非完全明確。假若“順手牽羊”是指一名被告人不誠實地取去他人不慎遺失的財物或在無意間趁他人沒有小心保管他們的財物時，順手取去他們的財物，則申請人在本案所犯的罪行並非是“順手牽羊” 。假若“順手牽羊”是指被告人以受害人的疏忽為目標，故意及有計劃地在受害人不為意的情況下盜取他們放在身邊的錢包或財物,則該類“順手牽羊”罪行根本上和“扒竊”罪行的嚴重性不分伯仲。該類罪行同樣的是在公眾地方干犯，亦有侵犯個人私隱及導致受害人極大之不便。邏輯上而言，本庭看不到受害人的錢包是放在身上或其帶的背袋內和錢包是放在他們附近的超市手推車或枱椅上有任何實質分別，從而會影響判刑。受害人的錢包是放在身旁而非身上，可能令被告人較容易盜取,但該因素絕不構成法庭要輕判的理由。" } }, { "doc_id": 132, "seg_id": 30, "translation": { "en": "We notice that different judges of the Court of First Instance have adopted different approaches in dealing with cases of the same type. Some judges have taken the view that an offence in which the defendant stole property placed inside the clothing hanging on the back of a chair in a restaurant is different from the offence of “pickpocketing” and should therefore be sentenced differently, but some judges have taken the opposite view. In our opinion, the nature of the offence should not be affected by whether the victim’s property was, on the one hand, placed inside the clothing or bags next to him or her or, on the other hand, placed inside [the clothing] they were wearing or the bag they were carrying. As long as the defendant, acting with premeditation and deliberately, has taken advantage of the victim’s negligence and stolen property placed next to him or her, then there is no difference between such a theft offence and the offence of “pick-pocketing” in terms of gravity.", "zh-HK": "本庭察覺到原訟法庭不同法官在處理同類案件時的取態有所不同。有些法官認為被告人盜取受害人掛在食肆椅背衣物內的財物和“扒竊”罪行不同，判刑亦應有別，但亦有法官持相反意見。本庭認為受害人的財物是放在他們身旁的衣物或包袋和財物是放在他們穿在身上或攜帶在身上的包袋不應影響罪行的本質。只要被告人是故意及有計劃地利用受害人的疏忽來盜取他們放在身邊的財物，被告人的盜竊罪行和“扒竊”罪行的嚴重性是相同的。" } }, { "doc_id": 132, "seg_id": 31, "translation": { "en": "We have to emphasize that in the present case it is not that the applicant stole properties left behind by the victims or took properties away in passing when the careless victims were not keeping them in safe custody. The applicant consciously preyed on the negligence of the victims and, acting with premeditation and deliberately, took the opportunity presented by the victims’ inattention and stole their belongings which were placed beside them, including their purses, which contained not only cash but also the victims’ personal items such as their identity document(s) and bank card(s). The gravity of the offence committed by the applicant falls squarely within what the Court of Appeal emphasized in Ngo Van Huy.", "zh-HK": "本庭要強調，申請人並非是盜取受害人遺失的財物或在無意間趁受害人沒有小心保管他們的財物時，順手取去他們的財物。申請人是有意識以受害人的疏忽為目標，故意及有計劃地趁受害人不為意的情況下盜取了她們身邊的財物，包括錢包，而錢包內除了現金外，亦有受害人的身份證明文件、銀行卡等私人財物。申請人罪行的嚴重性正正是上訴法庭在Ngo Van Huy案所強調的。" } }, { "doc_id": 132, "seg_id": 32, "translation": { "en": "We agree with the trial judge that, at least in relation to the offences under Charges 1 and 3, the gravity of those offences is the same as that of the offence of “pick-pocketing” and the starting point adopted for the former should also be the same as that for the latter. Even if the nature of the offence under Charge 2 is slightly different from that of the offence of “pick-pocketing”, the difference is not significant in light of the background of the present case. The applicant, acting with premeditation and deliberately, seized the moment when Ms Lee was inattentive and took away her mobile phone. The applicant planned her acts and hunted for targets in public places. She observed that Ms Lee had not been paying attention to her mobile phone and so swiftly took it away. The degree of gravity of the offence under Charge 2 is similar to that of the offence of “pick-pocketing”.", "zh-HK": "本庭認同原審法官的立場，至少就第一和第三項控罪所指的罪行而言，其嚴重性和“扒竊”罪行相同而應採納的量刑基準亦應和該類罪行的量刑基準相同。即使第二項控罪性質和“扒竊”罪稍有不同，但以本案的背景而言，分別不大。申請人是故意及有計劃地趁李‍女士一不留神而趁機取去她的手提電話。申請人有計劃行事，在公眾地方搜尋獵物。她觀察到李‍女士沒有關注到她的手提電話時，便迅速地取走其手提電話。第二項控罪的嚴重性和“扒竊”罪行相若。" } }, { "doc_id": 132, "seg_id": 33, "translation": { "en": "The applicant repeatedly stole properties belonging to others within a mere two hours. Her reckless disregard of the law is indeed astonishing. We are not persuaded by Mr Luk’s submission that the sentences for the four offences should run concurrently as all the offences were committed within a few hours. If the courts acted in accordance with Mr Luk’s suggestion, this would in effect encourage the commission of multiple offences within a short period of time.", "zh-HK": "申請人在短短約兩小時內，多次盜取他人財物，其無視法紀的狂妄行為，實在令人震驚。陸‍大律師指因為全部罪行是在數小時內干犯，四項控罪的判刑應全部同期執行的說法不具說服力。假若法庭按陸‍大律師的說法行事，會變相鼓勵罪犯在短時間內多次犯案。" } }, { "doc_id": 132, "seg_id": 34, "translation": { "en": "Within two hours or so on an evening, the applicant thrice stole properties belonging to others, including cash of approximately $3,400 and Renminbi ¥300. Upon arrest, the applicant had on her person cash of approximately HK$8,000 and Renminibi ¥510. This being the case, the inference that the cash on the person of the applicant came from the victims is both reasonable and irresistible. We do not accept Mr Luk’s submission that the trial judge should not have regarded the cash seized on the person of the applicant as coming from the victims, which submission we consider illogical and by no means convincing.", "zh-HK": "申請人在晚上約兩小時內三次盜取他人財物，包括現金約3,400 元和人民幣 300 元。被捕時，申請人身上有現金約8,000 港元和510 元人民幣。在上述情況下推論申請人身上的現金源自案件的受害人是合理和無可抗拒的。陸‍大律師原指原審法官不應視申請人身上檢獲的現金源自受害人的說法不合邏輯，更不具任何說服力,本庭不認同。" } }, { "doc_id": 132, "seg_id": 35, "translation": { "en": "The trial judge regarded some of the cash seized on the person of the applicant as part of the stolen property subsequently retrieved, and on that basis exercised his discretion not to grant the applicant any reduction in sentence even though restitution had been made to the victims for part of their losses. On the facts of the present case, we see nothing improper with the trial judge’s approach. Mr Luk contended that the applicant had at an early stage already intended to make restitution to the victims for their loss in cash. In our view, given the background of the present case, the applicant had no choice at all. Whether she was willing or not, the court would certainly order that the cash seized upon her be given to the victims as compensation.", "zh-HK": "以本案的案情而言，原審法官以申請人身上檢獲的部分現金等同一些被尋回的失物，而因此行使酌情權不以受害人的部分損失獲得償還而給予申請人刑期扣減並無不妥。陸‍大律師力稱申請人早已有打算償還受害人的現金損失。本庭認為以本案的背景而言，申請人根本並無選擇。她願意與否法庭都必會將她身上搜獲的現金賠償給受害人。" } }, { "doc_id": 132, "seg_id": 36, "translation": { "en": "The applicant is obviously an incorrigible recidivist. She has once and again been sentenced to imprisonment for theft offences, and the numerous short-term custodial sentences have apparently had no deterrent effect on her. The starting points and sentences imposed by the trial judge for individual charges with reference to Ngo Van Huy are appropriate.", "zh-HK": "申請人明顯是一名執迷不悟的盜竊慣匪，她多次因盜竊罪而被判監禁。她多次被判的短刑期都不足以阻嚇她。原審法官根據Ngo Van Huy 案而就個別控罪採納的量刑基準及判刑是合適的。" } }, { "doc_id": 132, "seg_id": 37, "translation": { "en": "It remains for us to consider whether the total term of 30 months is manifestly excessive.", "zh-HK": "本庭唯一要考慮的是30 個月的總判刑是否明顯過重。" } }, { "doc_id": 132, "seg_id": 38, "translation": { "en": "The applicant has been sentenced to 30 months’ imprisonment on a guilty plea. This translates to a starting point of almost 4 years.", "zh-HK": "申請人在認罪下被判入獄30 個月,該刑期等同近4 年的量刑基準。" } }, { "doc_id": 132, "seg_id": 39, "translation": { "en": "In our view, for the three counts of “pickpocketing” and one count of “shop theft”, even when the applicant’s criminal records are taken into account, an overall starting point of 3 years sufficiently reflects the gravity of the case.", "zh-HK": "以三項“扒竊”和一項“店舖盜竊”罪行而言，即使考慮及申請人的犯罪記錄，本庭認為總量刑基準3 年已足以反映案件的嚴重性。" } }, { "doc_id": 132, "seg_id": 40, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 132, "seg_id": 41, "translation": { "en": "By reason of her guilty plea, the applicant is entitled to one-third discount in sentence. Her sentence should therefore be 2 years’ imprisonment.", "zh-HK": "申請人承認控罪，理應獲得三分一的刑期扣減，她的判刑應為2 年。" } }, { "doc_id": 132, "seg_id": 42, "translation": { "en": "We have accordingly granted the applicant leave to appeal her sentence and, treating the application as the appeal proper, allowed the appeal. We have not disturbed the sentences for the individual charges, but have ordered that only 3 months, 3 months and 2 months of the terms for Charges 2, 3 and 4 respectively are to run consecutively to the term of 16 months for Charge 1, and the rest of the sentences are to run concurrently. The total term of imprisonment of the applicant has been reduced from 30 months to 24 months.", "zh-HK": "本庭批准申請人就判刑提出的上訴許可申請，並視其申請為正式上訴。本庭裁定申請人上訴得直。本庭不會更改個別控罪的判刑，但下令第二、第三和第四項控罪的分別判刑，只需3 個月、3 個月和2 個月要和第一項控罪的16個月判刑分期執行，其餘判刑全部同期執行。申請人的總刑期由30個月減至24個月。" } }, { "doc_id": 132, "seg_id": 43, "translation": { "en": "Mr Andrew Li, Senior Public Prosecutor of the Department of Justice, for the respondent", "zh-HK": "答辯人: 由律政司高級檢控官李希哲代表。" } }, { "doc_id": 132, "seg_id": 44, "translation": { "en": "Mr Albert Luk, instructed by Ha and Ho and assigned by the Legal Aid Department, for the applicant", "zh-HK": "申請人：由法律援助署委派夏峻何偉文律師事務所轉聘大律師陸偉雄代表。" } }, { "doc_id": 133, "seg_id": 1, "translation": { "en": "Hon Yeung J (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 133, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 133, "seg_id": 3, "translation": { "en": "The Applicant (Yu Kwok On) was arraigned on five counts of indecent assault (Counts 1 to 5), one count of indecent conduct towards a child (Count 6), and one count of rape (Count 7). He pleaded not guilty to all the charges and was tried before Deputy High Court Judge Derek Pang (as he then was) sitting with a jury.", "zh-HK": "申請人（余國安）被控五項“非禮罪”（第1至第5項），一項“向兒童作出猥褻行為罪”（第6項），及一項“強姦”罪（第7項）。申請人否認全部控罪 ，並在高等法院原訟法庭暫委法官彭偉昌（當時官階）會同陪審團席前接受審訊。" } }, { "doc_id": 133, "seg_id": 4, "translation": { "en": "On 16 September 2009, the jury convicted the Applicant of indecent assault in Count 5 and indecent conduct towards a child in Count 6 but acquitted him on the rest of the charges.", "zh-HK": "2009年9月16日，陪審團裁定申請人第5項“非禮罪”及第6項“向兒童作出猥褻行為罪”罪名成立，其餘控罪則罪名不成立。" } }, { "doc_id": 133, "seg_id": 5, "translation": { "en": "On 9 October 2009, Deputy Judge Pang sentenced the Applicant to 4 years’ imprisonment on each of the charges, 2 years of which were to be served consecutively, thus making a total of 6 years’ imprisonment.", "zh-HK": "2009年10月9日，彭法官判申請人每項控罪入獄4年，其中兩年分期執行。申請人要服刑共6年。" } }, { "doc_id": 133, "seg_id": 6, "translation": { "en": "The Applicant was aggrieved by his conviction and sentence. Through his counsel, Mr David Ma, he applied for leave to appeal against both his conviction and sentence. At the hearing, Mr Ma informed the court that the Applicant abandoned his application against sentence, which was accordingly dismissed. His application against conviction was also dismissed after the hearing. We now give the reasons for our decision.", "zh-HK": "申請人不服定罪及判刑。由馬維騉大律師代表，提出申請，要求獲准就定罪及判刑上訴。聆訊時，馬大律師知會法庭申請人放棄就判刑之申請，該申請被撤銷。聆訊後，本庭亦駁回申請人就定罪之申請，以下是本庭的判決理由。" } }, { "doc_id": 133, "seg_id": 7, "translation": { "en": "Prosecution case and evidence", "zh-HK": "控方案情及證據" } }, { "doc_id": 133, "seg_id": 8, "translation": { "en": "The case concerned two girls, X and Y. X, the elder sister, was born on 18 December 1987, while Y, the younger sister, was born on 28 March 1992. Between 1993 and 1994, X and Y lived with their family in Lower Ngau Tau Kok Estate. Since May 2003, they have resided at Wo Che Estate in Shatin.", "zh-HK": "案件涉及兩名女童X和Y。姊姊X在1987年12月18日出生，而妹妹Y則在1992年3月28日出生。1993年至1994年間，X和Y及家人在牛頭角下邨居住，而自2003年5月起，她們在沙田禾輋邨居住。" } }, { "doc_id": 133, "seg_id": 9, "translation": { "en": "The Applicant is X and Y’s eldest uncle. He lived with his family in Jat Min Chuen, Shatin between 1994 and 2004.", "zh-HK": "申請人是X和Y的大舅父，在1994年至2004年期間，申請人和家人居住在沙田乙明邨。" } }, { "doc_id": 133, "seg_id": 10, "translation": { "en": "From September 2001 to July 2008, Y studied in Primary 4 to Form 4. Because of her poor academic performance, Y repeated Form 4 between September 2008 and July 2009, during which time she was absent from school for 21 days. On 23 September 2008, her teacher interviewed her to try to understand her situation. Y revealed that she had been sexually assaulted, which led to the police investigation and follow-up.", "zh-HK": "2001年9月至2008年7月，Y就讀小學四年級至中學四年級。由於成績不佳，Y在2008年9月至2009年7月重讀中四，期間她缺課21天。2008年9月23日，老師接見Y以了解她的情況。Y透露曾遭申請人性侵犯，導致警方介入調查及跟進。" } }, { "doc_id": 133, "seg_id": 11, "translation": { "en": "The prosecution case was that the Applicant indecently assaulted X three times between 1 September 1994 and 31 December 1997 (indecent assault in Counts 1 to 3,) at X and her family’s home in Lower Ngau Tau Kok Estate and the Applicant’s home in Jat Min Chuen, Shatin. The prosecution also alleged that the Applicant had sexually assaulted Y three times, namely, indecently assaulting her twice between 1 September 2001 and 30 June 2002 and between 1 September 2003 and 31 July 2005 (Counts 4 and 5); committing an act of gross indecency towards her between 1 September 2004 and 31 July 2007 (Count 6), in addition to raping her between 1 September 2007 and 31 July 2008 (Count 7). According to the prosecution case, the locations where his sexual assaults on Y took place was Y and her family’s home in Wo Che Estate, Shatin or the Applicant’s home at Jat Min Chuen.", "zh-HK": "控方指申請人在1994年9月1日至1997年12月31日期間3次非禮X（第一至第三項非禮罪）, 案發地點分別是X和家人在牛頭角下邨的居所和申請人在沙田乙明邨的居所。控方亦指申請人三次性侵犯Y，包括在2001年9月1日至2002年6月30日及在2003年9月1日至2005年7月31日其間兩次非禮她（第四、五項控罪）；在2004年9月1日至2007年7月31日期間向她作出嚴重猥褻行為（第六項控罪）；及在2007年9月1日至2008年7月31日期間強姦她（第七項控罪）。控方指申請人性侵犯Y的地方，是Y和家人在沙田禾輋邨的居所或申請人在乙明邨的居所。" } }, { "doc_id": 133, "seg_id": 12, "translation": { "en": "The prosecution evidence against the Applicant mainly came from X and Y. In her evidence, X gave details about how the Applicant had indecently assaulted her on numerous occasions as alleged in Counts 1 to 3. However, X also indicated that since the Applicant moved out to live alone in Shamshuipo in January or February of 2008, she still visited him because she had little awareness of the incidents when they happened and did not therefore have any hatred of the Applicant.", "zh-HK": "控方針對申請人的證據主要源自X和Y。X作供時就第一至第三項控罪，述及申請人多次非禮她的詳情。但X亦表示自2008年1、2月，申請人搬往深水埗獨居後，她仍然有去探望他，原因是事發時，她對事件認識不深，亦沒有因此而憎恨申請人。" } }, { "doc_id": 133, "seg_id": 13, "translation": { "en": "It was Y’s evidence that when she was in Primary 4, namely between 1 September 2001 and 30 June 2002, she was taken to the Applicant’s home in Jat Min Chuen on a certain evening. Meanwhile, when there was no adult present, the Applicant put his hand(s) under her clothing to touch her breasts. Moreover, on a certain day in 2004 or 2005, while she was taking an afternoon nap at her Wo Che Estate home, the Applicant arrived, lifted her T-shirt, fondled her breasts and reached down to touch her private parts, inserting his finger(s) into her vagina and lightly moving it (them) up and down. According to Y, in the course of it the Applicant did loosen his own trousers and put his hand inside. Eventually the Applicant withdrew his hand and re-arranged her clothes for her. He gave her $10 or $20 to buy snacks before he left.", "zh-HK": "根據Y的證供，她小學四年級，即2001年9月1日至2002年6月30日的某一晚上，她被帶往申請人乙明邨的居所。其間，在沒有成年人在場時，申請人伸手入她的衣服內摸她的兩邊胸部，而在2004、2005年某天，她在禾輋邨居所午睡時，申請人到來，揭起她的T恤及摸她的胸部及伸手撫摸她的下體，包括用手指輕力抽擦她的陰道。Y更指其間申請人有拉開自己條褲及伸手入內。其後申請人縮手及替她整理衣服。離開前，申請人給了她一、二十元購買零食。" } }, { "doc_id": 133, "seg_id": 14, "translation": { "en": "Y also gave evidence that the Applicant assaulted her on another occasion when she was in Form 1 to Form 3, i.e. between September 2004 and July 2007. She said that on that particular afternoon, only she and her younger brother were home, and she was sleeping in the double bed in her mother’s room. When the Applicant arrived at her home, he climbed into the bed, kissed her on the lips and neck before putting his hand(s) under her clothes to touch her breasts and private parts. Meanwhile he even inserted his finger(s) into her vagina. Later, the Applicant got out of bed to remove his trousers, exposing his erected penis. He put his penis in Y’s mouth and in the course of doing so, he held Y’s head in place with his hands. Y indicated her unwillingness, but she did not reject the Applicant’s conduct. She merely kept the Applicant’s penis in her mouth and let him move himself. Y indicated that the Applicant’s behaviour was very “dirty” and “disgusting”, and she found it hard to bear since she had something “thrust” down her throat. Y also testified that the Applicant had said nothing throughout and soon after he stopped his movements, he sat for a while at the sitting room and then he left.", "zh-HK": "Y亦指申請人另一次侵犯她的日子是她讀中一至中三，即2004年9月至2007年7月期間。Y指當天下午，家中只有她和弟弟，她睡在媽媽房間的雙人床。申請人到她的家中後，爬上床，先錫她的嘴和頸，然後伸手入她的衣服內摸她的胸部和下體，其間更有用手指插入她的陰道。隨後，申請人下床除去褲，露出勃起的陰莖及將陰莖放入Y的口，其間更有用手撳着Y的頭。Y表示不願意，但沒有拒絕申請人的行為，她只是用口啜住申請人的陰莖，由他自己去郁動。Y表示申請人的行為好“污糟”，好“核突”，加上喉嚨遭“頂着”，所以感到很辛苦。Y亦表示全程申請人沒有說話，而停止動作不久，在客廳坐了一會後就離開。" } }, { "doc_id": 133, "seg_id": 15, "translation": { "en": "According to Y, the Applicant’s last sexual assault on her took place when she was in Form 4 for the first time, namely between September 2007 and July 2008. She said the weather was still warm on the day in question and she was wearing a short-sleeved upper garment. She thought it was a Saturday as she did not need to go to school. She said the Applicant indecently assaulted her first before inserting his penis into her private parts and moving up and down several times, which caused her great pain. Later the Applicant withdrew it and said to her, “No condom. Next time.”", "zh-HK": "Y指申請人最後一次性侵犯她時是她第一次讀中四，即2007年9月至2008年7月期間。Y表示當天天氣仍和暖，她穿著短袖衣服。Y認為當天是星期六，她不用上課。Y表示申請人先非禮她，後更用陰莖插入她的下體及抽擦了數次，令她感到非常痛楚。其後申請人抽離，並對她說“冇安全套，下次先。”。" } }, { "doc_id": 133, "seg_id": 16, "translation": { "en": "Y admitted that she started to skip classes in secondary school as she had too much homework and was under too much pressure. She was also repeatedly late because she overslept. She even admitted that she had sexual intercourse with a man surnamed Ho just 10 days after she had met him in mid-August 2007, and that in the following two months she had sex with Ho for a total of five times at places including her mother’s bedroom. In fact, the police found from Ho’s camera numerous video clips depicting him and Y having sex and also nude images of Y, which gave rise to Ho being charged with five counts of having sexual intercourse with a girl under 16.", "zh-HK": "Y承認中學開始曠課，因為功課太多，壓力太大，亦因為“睡過龍”，而多次遲到。Y更承認在2007年8月中認識一名何姓男子後，10天便和他有性行為，並在其後兩個月內共五次和該名何姓男子發生性行為，地點包括在母親的睡房。事實上，警員在該名何姓男子的相機內發現多段他和Y的性愛片段及Y的祼體硬照，導致該名何姓男子被控五項和16歲以下女童性交罪。" } }, { "doc_id": 133, "seg_id": 17, "translation": { "en": "Y indicated that she had performed oral sex on Ho, and that she knew how to do it because she had heard her classmates describe it and had done it with the Applicant before.", "zh-HK": "Y表示曾有和該名何姓男子口交，而她識得這樣做是因為聽過同學講過及和申請人做過。" } }, { "doc_id": 133, "seg_id": 18, "translation": { "en": "In response to the defence’s suggestion about her claiming that her father could not have taken her to the Applicant’s home so as to give the Applicant the initial chance to indecently assault her, Y said that she might have mixed up her father with her stepfather. Y indicated that she could not remember the date when the Applicant raped her, nor was she able to tell whether the rape took place before or after she had met Ho.", "zh-HK": "回應辯方向她指出她聲稱父親不可能帶她前往申請人的居所，令申請人有機會首先非禮她時，Y表示可能弄錯了父親和繼父的身份。Y表示不能記得申請人強姦她的日子，亦不能說出強姦事件究竟是發生在她認識何姓男子之前或後。" } }, { "doc_id": 133, "seg_id": 19, "translation": { "en": "The Defence", "zh-HK": "答辯理由" } }, { "doc_id": 133, "seg_id": 20, "translation": { "en": "The Applicant denied all the charges brought against him by the prosecution. In giving evidence in his own defence, the Applicant described his family background. He said he had been married for 22 years and had a son aged 21 and a daughter aged 16. He indicated that his family enjoyed a good relationship with his younger sister’s family and there had been frequent contacts and mutual visits between them. In 2008, the Applicant and his wife suffered a downturn in their relationship. As a result, he moved out to live alone in Shamshuipo. Meanwhile X did go there to visit him.", "zh-HK": "申請人否認控方對他的全部指控。作供自辯時，申請人列出自己的家庭背景。申請人表示結婚已有22年，育有一名21歲的兒子及一名16歲的女兒。申請人亦表示自己一家和妹妹一家關係良好，亦不時有交往及互訪。申請人在2008年和妻子關係轉淡，故單獨搬到深水埗居住，其間X有去探望他。" } }, { "doc_id": 133, "seg_id": 21, "translation": { "en": "The Applicant testified that the relationship between his sister (namely X and Y’s mother) and her husband had also turned sour and after X and Y’s father had moved out from the family home, she met her current husband, Mr Pang, between 1999 and 2000. According to the Applicant, X turned bad later and became wayward and out of control. This, he said, caused X and Y’s mother to suffer a mild psychiatric illness. As a result, the Applicant would lecture X and Y whenever they misbehaved.", "zh-HK": "申請人指妹妹（即X、Y母親）和丈夫的關係亦變差，而X、Y父親搬離家庭後，她在1999年至2000年間認識了現任丈夫彭先生。申請人表示其後X學壞，變得無王管及失控。申請人更表示事件導致X、Y的母親患上輕微精神病。因此，申請人在X、Y不聽話時，會教訓她們。" } }, { "doc_id": 133, "seg_id": 22, "translation": { "en": "The Applicant claimed that after his sister had remarried, the two families had fewer contacts but there were still mutual visits, roughly at bi-monthly intervals. In fact, during the period between 2004 and 2008, he paid an average of one visit each month to his sister’s home in order to assist her in disciplining X and Y. The Applicant stressed that he did not stay long at X and Y’s home and every time the domestic helper employed by his sister was present.", "zh-HK": "申請人表示妹妹再婚後，兩家人減少了往來，但仍有互訪，約每兩個月一次，而他在2004至2008年期間更平均每月一次前往妹妹的家，協助她管教X和Y。申請人強調，逗留在X和Y的家時間不會長，而每次都有其妹妹聘用的傭人在場。" } }, { "doc_id": 133, "seg_id": 23, "translation": { "en": "The Applicant indicated that he did not understand why X and Y would make allegations of sexual assaults against him.", "zh-HK": "申請人表示不明白X、Y為何會對他作出性侵犯的指控。" } }, { "doc_id": 133, "seg_id": 24, "translation": { "en": "Ms Choi, the Applicant’s former wife, also gave evidence. She said that the Applicant was not very good at getting along with his children, but he was a family man. She stressed that it was only two days before his arrest that she first heard of the allegation of improper conduct against him, namely his alleged sexual assaults on X and Y. Ms Choi said that before the matter came to light, X and Y never looked as if they wanted to avoid the Applicant, nor did they appear uneasy in front of him. Ms Choi confirmed that after the relationship between the Applicant’s sister and her husband had turned sour, the Applicant’s sister began to suffer a psychiatric illness.", "zh-HK": "申請人的前妻蔡女士亦有作供。她表示申請人不大懂和子女相處，但是一名顧家男子。蔡女士強調是在申請人被捕前兩天，才首先聽到有人指控申請人性侵犯X、Y的不當行為。蔡女士表示事發前X、Y從沒有表現要迴避申請人，亦沒有在他面前時表現不安。蔡女士確認申請人妹妹和丈夫關係變差後，便有患上精神病。" } }, { "doc_id": 133, "seg_id": 25, "translation": { "en": "Ms Choi also indicated that she did not understand why X and Y would make allegations of sexual assaults against the Applicant.", "zh-HK": "蔡女士亦表示不明白X、Y為何會對申請人作出性侵犯的指控。" } }, { "doc_id": 133, "seg_id": 26, "translation": { "en": "Trial judge’s directions to the jury", "zh-HK": "原審法官對陪審員的指引" } }, { "doc_id": 133, "seg_id": 27, "translation": { "en": "The issue involved in the case was simple. What the jury had to resolve was simply whether they were sure that all or part of X and Y’s evidence against the Applicant was true.", "zh-HK": "案件涉及的爭議簡單。陪審團要解決的議題只是他們能否確信X和Y指控申請人的證供全 部或部份屬實。" } }, { "doc_id": 133, "seg_id": 28, "translation": { "en": "Apart from explaining to the jury the burden and the standard of proof, the trial judge made it clear to the jury that they were entitled to accept all or part of a witness’ evidence. If they rejected part of a witness’ evidence, they must carefully consider whether the rest of that witness’ evidence was credible. The trial judge also impressed on the jury that if they found doubts in the overall evidence, if they were not sure that the Applicant had committed the crime in question, they must acquit him on the relevant charges. The trial judge pointed out to the jury that if they found that the Applicant’s version given in his defence was true or might be true, they must acquit him.", "zh-HK": "除了就案情舉證責任及標準向陪審團解釋外，原審法官向陪審團表明，他們可以接納某一證人的全部或部份證供，如他們拒絕接納某一證人的部份證供，他們必需小心考慮該名證人的其他證供是否可信。原審法官亦向陪審團強調如他們認為整體證據有疑點，他們不能肯定申請人有干犯有關控罪時，他們必需裁定申請人有關控罪不成立。原審法官向陪審團指出，假若他們認為申請人自辯的說法，是真的或可能是真的，他們就必須判申請人無罪。" } }, { "doc_id": 133, "seg_id": 29, "translation": { "en": "After the trial judge had summed up the case and given directions to the jury, the jury raised this question: “If there is doubt about one or more pieces of evidence in respect of a certain charge, is it the case that the jury must acquit the defendant even though we are sure of the rest of the evidence? Are we permitted to evaluate the importance or significance of the doubtful evidence in relation to the case?”", "zh-HK": "當原審法官向陪審團作出案情總結及引導後，陪審團作出以下提問：“假若在某一項控罪當中有一項或以上證供有疑問，是否即使其他證供陪審團肯定，都必須要判被告無罪?是否可以衡量有疑點的證供對案情的重要性或關鍵性?”。" } }, { "doc_id": 133, "seg_id": 30, "translation": { "en": "Having discussed with counsel on both sides, the trial judge gave further directions to the jury as follows:", "zh-HK": "原審法官和控辯雙方大律師商討後再向陪審團作出以下指引：" } }, { "doc_id": 133, "seg_id": 31, "translation": { "en": "“In fact it has all been mentioned in my earlier directions, I suppose. First, I would like to repeat one point, which is that in respect of a witness’ evidence, you don’t have to either totally believe him or totally disbelieve him. Experience tells us that people don’t necessarily talk that way, right? Some parts are true, some are not; some parts are accurate, some are not. It is a matter for you to decide which parts you accept and which parts you reject. It is all right to accept part of a witness’ evidence but reject the rest of his evidence. But do bear in mind that if you reject part of a witness’ evidence, you have to take extra care in deciding whether the rest of his evidence is credible or not.”", "zh-HK": "“其實喺我個剛才嗰個指引面都講過晒架喇，應該。首先我想重複嘅一點係，一個證人嘅證供，你唔係話一係就完全信晒佢，一係就完全唔信佢嘅。經驗話畀我哋聽呢，人講嘢未必係咁架嘛，係咪呀？有部分真、部分假、部分準確、部分唔準確。接納邊一部分、不接納邊一部分呢，你哋自己係可以決定嘅。對某個證人嘅證供有所取、有所捨呢，係可以嘅。要注意番嘅係，如果你哋拒絕接納某個證人嘅部分證供，咁嚟自呢個證人嘅其他證供就要特別小心喇，睇下信唔信得過喇。”" } }, { "doc_id": 133, "seg_id": 32, "translation": { "en": "In respect of the indecent assault in Count 5, the trial judge gave the following directions to the jury:", "zh-HK": "就第五項非禮罪，原審法官向陪審團作出以下指引：" } }, { "doc_id": 133, "seg_id": 33, "translation": { "en": "“For the latter, the sequence is lifting the upper garment, putting a hand inside to touch her breasts, then putting a hand under the panties to touch her private parts and inserting a finger or fingers into her vagina. With so many acts, how are you to go about them? The answer is, in respect of each count, if you are sure that any of the acts did happen and that it meets the definition of indecent assault, you will convict him on that count. I needn’t say more if that is the case with two or more acts. However, if your opinion differs in respect of a certain count, say, some of you are only sure that the defendant did one thing, such as touching her breasts, while the others are only sure that he did another thing, such as touching her private parts. Then what should you do? The answer is, it will be sufficient if at least five of you are sure that the defendant did any one of the things.”", "zh-HK": "“後者,則依次為揭上衣,伸手入內摸胸, 再伸手入內褲入面摸下體，同用手指插陰道。咁多種行為，咁點辦呢咁？答案係，就每一項控罪而言，是但有一個行為係你哋肯定發生過嘅，而又肯定佢符合猥褻侵犯嘅定義，咁嗰項控罪就罪成。如果有兩個或者更多嘅行為係咁，就更加唔使講喇。但係如果喺某一項控罪面，你哋出現分歧，有人只肯定被告做咗一樣嘢，例如摸胸。又有人只肯定佢做過另一樣嘢，例如摸下體，咁又點呢？答案係，只要你哋夾埋有最少五個人肯定被告有做過其中一樣，咁就夠喇。”" } }, { "doc_id": 133, "seg_id": 34, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 133, "seg_id": 35, "translation": { "en": "Mr Ma on behalf the Applicant put forward three grounds of appeal.", "zh-HK": "代表申請人的馬維騉大律師提出三點上訴理由。" } }, { "doc_id": 133, "seg_id": 36, "translation": { "en": "Mr Ma submitted that in respect of the jury’s question, the further directions that the trial judge gave were inadequate. In particular, in response to the jury’s question, “Are we permitted to evaluate the importance or significance of the doubtful evidence in relation to the case”, the trial judge’s remarks, namely, “But do bear in mind that if you reject part of a witness’ evidence, you have to take extra care in deciding whether the rest of his evidence is credible or not”, did not adequately answer the jury’s question. Counsel argued that the trial judge’s response should have at least included the following:", "zh-HK": "馬大律師指原審法官就陪審團的提問向他們作出的進一步指引不足夠，特別是回應陪審團提出“是否可以衡量有疑點的證供對案情的重要性或關鍵性”之問題時，原審法官的說法，即“如果你哋拒絕接納某個證人嘅部分證供，咁嚟自呢個證人嘅其他證供就要特別小心喇，睇下信唔信得過喇”，不足以回應陪審團的提問。大律師指原審法官的回應，至少包括以下幾點：" } }, { "doc_id": 133, "seg_id": 37, "translation": { "en": "“a) It is certainly up to them to decide in respect of the evidence, whether they will accept or reject which part of it;", "zh-HK": "“ a)他們對證供當然可以有所取捨，接納或拒納證供任何一部份；" } }, { "doc_id": 133, "seg_id": 38, "translation": { "en": "b) When making a decision to accept or reject evidence, they must bear in mind that the burden of proof is on the prosecution and the standard is beyond reasonable doubt;", "zh-HK": "b) 在決定取捨的時候，應謹記舉証責任在於控方，標準是毫無合理疑點；" } }, { "doc_id": 133, "seg_id": 39, "translation": { "en": "c) When making a decision to accept or reject evidence, they should also carefully consider the reasons why they reject certain evidence and see whether those reasons will affect the credibility or reliability of the other evidence;", "zh-HK": "c)在決定取捨的時候，亦應細心考慮拒絕接納某些證供的理由，看看這些理由會否影響其它證供的可信性或可靠性；" } }, { "doc_id": 133, "seg_id": 40, "translation": { "en": "d) On the other hand, the jury should also consider if the evidence they want to reject is of any importance or significance;", "zh-HK": "d)另一方面，陪審團亦需考慮欲拒納的證供是否具重要性或關鍵性；" } }, { "doc_id": 133, "seg_id": 41, "translation": { "en": "e) If the evidence rejected is not important or significant and the reasons for the rejection do not affect the overall credibility or reliability, then the jury may safely disregard the evidence in question and concentrate on the remaining evidence;", "zh-HK": "e)若果拒納的證供不具重要性或關鍵性，而拒納的理由又不影響整體的可信性或可靠性，則陪審團大可穩妥地摒棄有關證供，只著眼餘下的證供；" } }, { "doc_id": 133, "seg_id": 42, "translation": { "en": "f) If the evidence rejected is important or significant, the jury should be more cautious and thorough in considering the reasons why they reject such evidence and how that would affect the witness’ credibility and reliability; and", "zh-HK": "f)若果拒納的證供具重要性或關鍵性，陪審團則應更加謹慎及細心考慮，他們拒絕接納該些證供的原因，如何影響證人的可信性及可靠性；及" } }, { "doc_id": 133, "seg_id": 43, "translation": { "en": "g) The jury must bear in mind that if a witness is incredible in respect of some important or significant issues (such as lying or making serious mistakes), his or her overall credibility or reliability will necessarily be seriously undermined and they should take extra care.”", "zh-HK": "g)陪審團需謹記，若果在重要或具關鍵性的議題上，證人是不可信的（例如說謊或嚴重出錯），則證人的整體可信性或可靠性是必然受到嚴重的影響，而他們需加倍小心。”" } }, { "doc_id": 133, "seg_id": 44, "translation": { "en": "Mr Ma also referred to the directions that the trial judge gave to the jury in relation to the indecent assault in Count 5, namely, “some of you are only sure that the defendant did one thing, such as touching her breasts, while the others are only sure that he did another thing, such as touching her private parts. Then what should you do? The answer is, it will be sufficient if at least five of you are sure that the defendant did any one of the things.”", "zh-HK": "馬大律師亦指原審法官就第5項非禮罪向陪審團的指引，即“有人只肯定被告做咗一樣嘢，例如摸胸。又有人只肯定佢做過另一樣嘢，例如摸下體，咁又點呢？答案係，只要你哋夾埋有最少五個人肯定被告有做過其中一樣，咁就夠喇。”。" } }, { "doc_id": 133, "seg_id": 45, "translation": { "en": "Mr Ma stressed that the above directions might have led to one consequence, namely, even though only three persons were sure about the touching of the breasts, two persons were sure about the touching of the private parts and two persons were sure about the inserting of a finger or fingers into the private parts, the jury would still have to convict the Applicant, despite the fact that there were no more than five persons who were sure that the Applicant had committed a particular act of indecent assault.", "zh-HK": "馬大律師強調上述指引可能導致一個後果，即只有三票肯定摸胸，兩票肯定摸下體，兩票肯定用手指插入下體時，陪審團仍要裁定申請人罪成，雖然沒有超過五票肯定申請人犯過某一種猥褻侵犯的行為。" } }, { "doc_id": 133, "seg_id": 46, "translation": { "en": "Finally, Mr Ma argued that the jury, by acquitting the Applicant on Counts 4 and 7 but convicting him on Counts 5 and 6, had returned inconsistent verdicts.", "zh-HK": "最後，馬大律師指陪審團裁定申請人第四、七項罪名不成立，但第五、六項罪名成立的決定屬不一致的裁決。" } }, { "doc_id": 133, "seg_id": 47, "translation": { "en": "Mr Ma stressed that in respect of the above four counts, all the evidence came from Y and the issue that the jury had to resolve was whether Y’s evidence was credible and could lead to a conviction. Therefore the verdicts of guilty on two counts but not guilty on the other two were both unreasonable and illogical.", "zh-HK": "馬大律師強調就上述四項控罪，證據都全源自Y，而陪審團要解決的議題，都是Y的證供是否可信及可定罪。因此裁定他兩項罪名成立，兩項罪名不成立的裁決，不合理亦不合邏輯。" } }, { "doc_id": 133, "seg_id": 48, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 133, "seg_id": 49, "translation": { "en": "After the trial judge had summed up the facts and given his directions, the basic question that the jury raised was whether they could reject the prosecution’s allegation against the Applicant on one count while accepting the prosecution evidence against the Applicant on another, and accordingly convict him on that count.", "zh-HK": "陪審團在原審法官作出案情總結及引導後，提出的基本問題是他們能否否定控方就某一項控罪指控申請人時，同時接納控方就另一控罪指控申請人的證據，並因此裁定申請人該項控罪名成立。" } }, { "doc_id": 133, "seg_id": 50, "translation": { "en": "In respect of the above issue, the trial judge had on numerous occasions clearly indicated to the jury that they were entitled to accept part of a witness’ evidence but reject the rest of his evidence (Lines G-J on page 12 and Lines N-P on page 27 of the transcript).", "zh-HK": "原審法官就上述議題多次明確向陪審團表示他們可以接納某證人的部分證供及否定該名證人的其餘證供（謄本第12頁G-J行第27頁N-P行）。" } }, { "doc_id": 133, "seg_id": 51, "translation": { "en": "The trial judge also repeatedly reminded the jury that if they rejected part of a witness’ evidence, they would have to take extra care in handling the rest of that witness’ evidence (Lines I-K on page 12 and Lines P-Q on page 27 of the transcript).", "zh-HK": "原審法官亦重複提醒陪審團，當他們不接納某一證人的部分證供時，則要特別小心處理源自該證人的其餘證供（謄本第12頁I-K行及第27頁P-Q行）。" } }, { "doc_id": 133, "seg_id": 52, "translation": { "en": "Regarding the jury’s subsequent question, namely, whether they could evaluate the importance or significance of the doubtful evidence in relation to the case, the answer was also obvious.", "zh-HK": "陪審團隨後的問題，即是否可以衝量有疑點的證供對案情的重要性或關鍵性，答案亦是明確的。" } }, { "doc_id": 133, "seg_id": 53, "translation": { "en": "When the trial judge directed the jury that they were entitled to accept part of a witness’ evidence but reject the rest of that witness’ evidence, he also reminded them that in those circumstances, they would have to take extra care in handling that witness’ evidence to see if it was credible.", "zh-HK": "原審法官指出陪審團有權接納某一證人的部分證供及否決同一證人的其餘證供時，同時提醒陪審團在上述情況下，他們必需特別小心處理該名證人的證供看是否可信。" } }, { "doc_id": 133, "seg_id": 54, "translation": { "en": "The trial judge stressed to the jury that all the prosecution evidence against the applicant came from X and Y and there was no other evidence. Both X and Y were young and there might have been youthful misunderstanding. Consequently, the jury must treat their evidence with caution and they could convict the Applicant only if the prosecution made them sure that he was guilty.", "zh-HK": "原審法官向陪審團強調指控申請人的控方證據全部源自X 和Y，沒有任何其他證據，而X和Y 年紀都輕 ，亦可能不知輕重，因此陪審團必需小心處理她們的證供而控方亦必需令陪審團肯定申請人有罪，才能裁定他罪名成立。" } }, { "doc_id": 133, "seg_id": 55, "translation": { "en": "The issue that the jury had to resolve was simple, and the trial judge should also be straightforward and make things readily understandable to the jury when responding to their questions. We do not see any reasons why the trial judge should follow the 7 points proposed by Mr Ma in response to the jury’s question; that would only make matters complicated. In fact, the reply given by the trial judge has properly included the elements set out by Mr Ma. We do not agree with Mr Ma’s submission that the further directions given to the jury by the trial judge was inadequate or inappropriate.", "zh-HK": "陪審團要解決的議題簡單，回應陪審團的發問時，原審法官亦應直接及令陪審團容易明白。本庭看不到為何原審法官回應陪審團的發問時，要按馬大律師列出的7點行事，該做法只會令事件複雜化。事實上原審法官的回應，亦已適當地包含馬大律師列出的要素。本庭不同意馬大律師所指原審法官對陪審團的進一步引導，不足夠或不恰當。" } }, { "doc_id": 133, "seg_id": 56, "translation": { "en": "In HKSAR v Chan Shek-wai (CACC 472/2001), Mr Justice Stuart-Moore succinctly spelled out on page 11 of the judgment the applicable principle regarding “inconsistent verdict”:", "zh-HK": "司徒冕法官在HKSAR v Chan Shek-wai (CACC 472/2001) 案的判案書第11頁簡單地道出“不一致裁決”的適用原則：" } }, { "doc_id": 133, "seg_id": 57, "translation": { "en": "“So far as general principle is concerned, the burden of showing that verdicts are inconsistent falls squarely upon an appellant. Furthermore, not only must inconsistency be established but this must be shown to have been such as to call for interference by an appellant court.”", "zh-HK": "“一般性原則是，上訴人有絕對責任證明裁決是不一致的。再者，他不但要確立‘不一致’，更要證明‘不一致’的程度要上訴法庭干預。”" } }, { "doc_id": 133, "seg_id": 58, "translation": { "en": "In HKSAR v Chan Kai Lam (CACC 311/2003), this Court remarked that when dealing with an appeal which relied on the ground of “inconsistent verdicts”, a firm approach should be adopted. From relevant cases this Court cited the following paragraphs:", "zh-HK": "在HKSAR v Chan Kai Lam (CACC 311/2003)案，本庭建議在處理以“裁決不一致”為理由的上訴時，應採取堅定不移的方法。本庭從有關案例中援引了下列段落：" } }, { "doc_id": 133, "seg_id": 59, "translation": { "en": "“To succeed the appellant must show, firstly, that the verdicts are logically inconsistent, secondly, that they are so inconsistent as to demand interference by an appellate court – i.e. that there is no way in which the logically inconsistent verdicts can be sensibly explained.”", "zh-HK": "“要成功，上訴人需顯示第一，裁決邏輯上是不一致的，第二，不一致的程度令上訴庭不得不干預，即邏輯上不一致的裁決不可能合理地闡明。" } }, { "doc_id": 133, "seg_id": 60, "translation": { "en": "“All of these directions and those to which we have earlier referred, serve to illustrate yet again the importance of according respect to the verdict given by a jury. Having said that, obviously if the verdict amounts to what can effectively be described as nonsense, then it cannot be allowed to stand.”", "zh-HK": "上述指引及本庭較早前述及的指引再一次說明尊重陪審團裁決之重要性。當然，如果裁決實際上可被視為屬荒謬的，則必需推反。”" } }, { "doc_id": 133, "seg_id": 61, "translation": { "en": "In HKSAR v Li King Sing Ivan [2001] 2 HKC 539, Mr Justice Stuart-Moore VP also cited two English Court of Appeal cases to show that even though a jury accepted part of a witness’ evidence and convict a defendant on a certain charge while at the same time reject the same witness’ evidence which led to a not guilty verdict on another count, that did not mean that the jury’s verdicts were “inconsistent”.", "zh-HK": "在HKSAR v Li King Sing Ivan [2001] 2 HKC 539案，司徒冕副庭長亦複述了兩宗英國上訴法庭的判例，證明陪審團接納某證人的部分證供及裁定被告人某項罪名成立，但同時不接納同一證人的證供以致裁定被告人另一項罪名不成立時，不表示陪審團的裁決屬“不一致”。" } }, { "doc_id": 133, "seg_id": 62, "translation": { "en": "In R v Ven der Molen [1997] Crim LR 604, at page 605, the English Court of Appeal said:", "zh-HK": "在R v Van der Molen [1997] Crim LR 604案判案書第605頁，英國上訴法庭表示：" } }, { "doc_id": 133, "seg_id": 63, "translation": { "en": "“…it did not follow that because the jury must have disbelieved a witness or rejected his or her evidence with the result that it acquitted on one count, it was necessarily acting irrationally to rely on the evidence of the same witness to convict on another count. The Court had to be very careful not to usurp the role of the jury who had heard the witnesses and considered the matter long and hard.”", "zh-HK": "“…當陪審團不相信一位證人或拒絕接納他/她的證據，因而就一項控罪裁定被告人罪名不成立，但信賴同一證人的證供而就另一控罪裁定被告人罪名成立，並不等如陪審團一定是不合情理地行事。陪審團有視聽證人作供，又有長時間深入作出考慮；法庭應小心不要隨便奪取陪審團的地位。”" } }, { "doc_id": 133, "seg_id": 64, "translation": { "en": "In the following year, the English Court of Appeal also held in R v G [1998] Crim LR 483 that:", "zh-HK": "翌年，英國上訴法庭在R v G [1998] Crim LR 483案亦裁定:" } }, { "doc_id": 133, "seg_id": 65, "translation": { "en": "“A person’s credibility is not a seamless robe, any more than is their reliability. The jury had to consider (as they were rightly directed) each count separately, and might take a different view of the reliability of the evidence on different counts. It was too simplistic to draw a stark distinction between reliability and credibility (as had been put in the argument). It was for the jury to decide on the basis of all the material before it whether it was sure of the particular allegation in each count.”", "zh-HK": "“…一個人的可信性並不是天衣無縫的。他的可靠性亦然。陪審團應該（依照正確的指引）分別考慮每一項控罪，他們可以就不同的控罪，就證據的可靠性作出不同的觀點。（如本案律師指稱），就可靠性與可信性作出完全的區別，未免過份簡單化了。陪審團應做的，就是考慮全部的資料後，決定是否肯定每一項控罪的指控”" } }, { "doc_id": 133, "seg_id": 66, "translation": { "en": "Mr Ma argued that since all the evidence concerning Counts 4 to 7 came from Y, the fact that the jury acquitted the Applicant on Counts 4 and 7 but convicted him on Count 5 and 6 showed that their verdicts were inconsistent.", "zh-HK": "馬大律師力稱第四至第七項控罪的證據全源自Y，因此陪審團裁定申請人第四、七項控罪不成立，但第五、六項控罪成立顯示陪審團的裁決不一致。" } }, { "doc_id": 133, "seg_id": 67, "translation": { "en": "Mr Ma’s approach to this matter was exactly in conflict with the proper approach propounded in the above cases.", "zh-HK": "馬大律師的處理方法正正和上述案件所稱的適當處理方法有抵觸。" } }, { "doc_id": 133, "seg_id": 68, "translation": { "en": "As submitted by Ms Sally Yam on behalf of the Respondent, the location and time of the four offences were different, and more importantly, the details that Y gave in respect of the Applicant’s sexual assaults on her on the various occasions also differed substantially. When Y described matters relating to Counts 5 and 6, she gave more details and there were special features which were also consistent with the Applicant’s evidence.", "zh-HK": "誠如答辯人的代表大律師任可正確指出，四宗罪行的犯案地點，時間都不同，而更重要的是Y描述各次申請人性侵犯她的詳情亦有很大的差別。Y描述和第五及第六項控罪有關的事項時，更詳細，亦有其特別之處，亦和申請人的證供吻合。" } }, { "doc_id": 133, "seg_id": 69, "translation": { "en": "We cannot overlook that fact that the offence in Count 4 took place the earliest and according to Y’s allegation, the Applicant’s children and her younger brother were all present at the time of the offence. In addition, according to Y, the Applicant’s assault on her was relatively mild and short. The jury must have given him the benefit of the doubt and acquitted him on that count.", "zh-HK": "本庭不能忽視第四項控罪是最早發生而據Y的指稱，案發時申請人的兒女和她的弟弟都在場。加上Y指稱申請人侵犯她的過程亦較輕微和短暫，陪審團極有可能是給予申請人疑點的利益而裁定該項控罪不成立。" } }, { "doc_id": 133, "seg_id": 70, "translation": { "en": "Similarly, we cannot overlook the fact that shortly after the Applicant’s alleged rape of her (Count 7), Y met a man and had sexual intercourse with him five times within a short period of time. She even allowed that man to film their sexual activities and take nude photos of her. Later Y also indicated that she was not certain whether she met the man before or after the Applicant had raped her.", "zh-HK": "本庭亦不能忽視Y指申請人強姦她（第七項控罪）後不久，她認識了一名男子，並在短時間內五次和他發生性行為，更讓該名男子拍攝他們的性愛行為及她的祼照。其後Y又表示不能確定申請人強姦她是發生在她認識該名男子之前或後。" } }, { "doc_id": 133, "seg_id": 71, "translation": { "en": "The jury must likewise have given the Applicant the benefit of the doubt and acquitted him on Count 7.", "zh-HK": "陪審團亦極有可能給予申請人疑點的利益而裁定針對他的第七項控罪不成立。" } }, { "doc_id": 133, "seg_id": 72, "translation": { "en": "The jury gave the Applicant the benefit of the doubt in respect of Counts 4 and 7 but at the same time convicted him on Counts 5 and 6. That does not mean that the jury’s verdicts were inconsistent. The ground of appeal put forward by Mr Ma as to the jury’s inconsistent verdicts cannot stand.", "zh-HK": "陪審團就第四項及第七項控罪給予申請人疑點利益，但同時裁定他第五項及第六項罪名成立，不表示陪審團的裁決不一致。馬大律師指陪審團裁決不一致的上訴理由不成立。" } }, { "doc_id": 133, "seg_id": 73, "translation": { "en": "In Y’s evidence, when the Applicant indecently assaulted her, he started by lifting her upper garment, then putting a hand inside to touch her breasts, before reaching under her panties to touch her private parts and insert a finger or fingers into her vagina. If any of the acts described above did happen, it would definitely amount to indecent assault. The directions given by the trial judge to the jury were that they did not have to be sure that the Applicant had done all the acts of indecent assault; as long as at least five of them were sure that the Applicant had done any of the above acts to Y, it would amount to indecent assault. The directions given by the trial judge were proper and correct and would not lead to the consequence described by Mr Ma, namely, the Applicant would be convicted of indecent assault even though only three persons were sure about the touching of the breasts, two persons about the touching of the private parts, and two persons about the inserting of a finger or fingers into the vagina.", "zh-HK": "根據Y的證供申請人非禮她時，先揭起她的上衣，然後伸手入內摸胸，再伸手入內褲摸下體及用手指插陰道。上述任何一種行為，如確有發生過，都必構成非禮。原審法官向陪審團的引導是他們無需確信申請人確有做過全部的非禮行為，只要他們中最少五個人肯定申請人有對Y做過上述行為其中之一項，則已構成非禮罪。原審法官的引導是適當及正確的, 更不會導致馬大律師所指的後果，即只有三票肯定摸胸，兩票肯定摸下體，兩票肯定用手指插下體便能裁定申請人非禮罪罪成。" } }, { "doc_id": 133, "seg_id": 74, "translation": { "en": "The verdicts in this case were entirely based on the jury’s assessment of Y’s evidence. The jury was given the chance to examine Y’s demeanour long and hard when she was in the witness box, and they must also have carefully considered and analyzed her evidence. The jury was entitled to accept Y’s allegation that the Applicant had indecently assaulted her and committed indecent acts against her in circumstances set out in Counts 5 and 6. We see nothing unsafe about the Applicant’s conviction in respect of the two charges.", "zh-HK": "本案之裁決全建基在陪審團對Y的證供的評估。陪審團有機會長時間及仔細地觀察Y作供時的神態，亦必有小心考慮及分析她的證供。陪審團有權接納Y指申請人在第五及第六項控罪所指的情況下非禮她及對她作出猥褻行為。對申請人被裁定該兩項控罪罪名成立，本庭不認為有不穩妥之處。" } }, { "doc_id": 133, "seg_id": 75, "translation": { "en": "The Applicant’s application for leave to appeal against conviction was dismissed.", "zh-HK": "本庭駁回申請人就定罪之上訴許可申請。" } }, { "doc_id": 133, "seg_id": 76, "translation": { "en": "Mr David Ma, instructed by Chong & Yen and assigned by the Legal Aid Department, for the Applicant", "zh-HK": "答辯人：由律政司高級檢控官任可代表。" } }, { "doc_id": 133, "seg_id": 77, "translation": { "en": "Ms Sally Yam, Senior Public Prosecutor of the Department of Justice, for the Respondent", "zh-HK": "申請人：由法律援助署委派張昭婷嚴興鳳律師事務所轉聘馬維騉大律師代表。" } }, { "doc_id": 134, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the Reasons for Judgment of the Court):", "zh-HK": "高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 134, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 134, "seg_id": 3, "translation": { "en": "The appellant (Chung Ka Wai) and two other defendants (Ng and Tam) faced a charge sheet containing a total of 10 charges. Charges 1 to 9 are all either obtaining or attempting to obtain property by deception (Deception Charges).", "zh-HK": "上訴人（鍾嘉威）和另外兩名被告人（吳、譚）面對共有10項控罪的控罪書。第一項至第九項控罪都是以欺騙或企圖以欺騙手段取得財產罪（詐騙罪）。" } }, { "doc_id": 134, "seg_id": 4, "translation": { "en": "The charges against the appellant, apart from the Deception Charges 2 and 5 to 8, also included charge 10, namely, possession of an identity card relating to another person without lawful authority or reasonable excuse, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177 (“s.7A(1A)”).", "zh-HK": "針對上訴人的控罪，除了第二項和第五項至第八項的詐騙罪外，亦包括第十項無合法權限或合理辯解而管有他人的身份證罪，違反香港法例第177章《人事登記條例》第7A(1A)條（“第7A(1A)條”）。" } }, { "doc_id": 134, "seg_id": 5, "translation": { "en": "The appellant pleaded not guilty to all charges and was tried before Deputy District Judge Marco Li (trial judge).", "zh-HK": "上訴人否認全部控罪，並在區域法院暫委法官李國威（原審法官）席前受審。" } }, { "doc_id": 134, "seg_id": 6, "translation": { "en": "On 8 October 2015, the trial judge, who was not sure that the appellant had knowledge of the online auction scam constituting the subject matter of his Deception Charges, acquitted the appellant of all his Deception Charges by giving him the benefit of the doubt. However, the trial judge convicted the appellant on charge 10, possession of an identity card relating to another person without lawful authority or reasonable excuse, and sentenced him to a Rehabilitation Centre.", "zh-HK": "2015年10月8日，原審法官因為不能確信上訴人對構成詐騙罪的網上拍賣騙案知情，故基於疑點利益歸於被告人的原則，裁定針對上訴人的詐騙罪罪名全部不成立。但原審法官裁定針對上訴人的第十項無合法權限或合理辯解而管有他人的身份證罪則罪名成立，並判他入更生中心。" } }, { "doc_id": 134, "seg_id": 7, "translation": { "en": "The appellant sought leave to appeal against the conviction and sentence and his application was granted by a single Justice of Appeal. He now appeals against the conviction and/or sentence. After the hearing, this Court dismissed the appellant’s appeal against conviction and sentence and upheld the original decision. This Court’s reasons for judgment are set out below.", "zh-HK": "上訴人不服定罪及判刑，經上訴法庭單一法官批准後，現就定罪及/或判刑上訴。經聆訊後，本庭駁回上訴人針對定罪和判刑的上訴，維持原判。以下是本庭的判案理由。" } }, { "doc_id": 134, "seg_id": 8, "translation": { "en": "The Facts", "zh-HK": "案情" } }, { "doc_id": 134, "seg_id": 9, "translation": { "en": "The facts related to charge 10 were undisputed and they were presented to the court as admitted facts, which are as follows:", "zh-HK": "和第十項控罪有關的案情是沒有爭議，並且是以承認事實向法庭呈述的。該承認事實如下：" } }, { "doc_id": 134, "seg_id": 10, "translation": { "en": "Around 3:30 p.m. on 29 June 2014, Lau Chun Ho (transliteration) discovered his Hong Kong Identity Card and property kept in a locker at Silverstrand Beach, Tseung Kwan O, had been stolen, and thus reported it to the police on the same day.", "zh-HK": "2014年6月29日下午約3時30分，劉振豪在將軍澳銀線灣儲物櫃發現屬於他的香港身份證和財物被盜，並於當日報警。" } }, { "doc_id": 134, "seg_id": 11, "translation": { "en": "On 26 September 2014, a detective police officer found upon search the identity card belonging to [Lau Chun Ho] in the first drawer from the left of a desk in [the appellant’s] room at his residence. Upon arrest and caution, [the appellant] said, “I picked it up on the street”.", "zh-HK": "2014年9月26日，探員在（上訴人）住所房間內一張書桌的左邊第一格抽屜搜出屬於（劉振豪）的身份證。在被捕和警誡下，（上訴人）說：“我喺街度執嘅”。" } }, { "doc_id": 134, "seg_id": 12, "translation": { "en": "DPC13345 stressed when he was giving evidence that the identity card in question (“the identity card”) was in the appellant’s passbook in the drawer, the same way as shown in photos 8 and 9 of the photo album listed as prosecution exhibit 5. The defence position was that the identity card was simply in the drawer, but not in the appellant’s passbook.", "zh-HK": "偵緝警員13345作供時強調涉案身份證（“身份證”）如控方證物第5部相簿冊中第8、9張照片所顯示，是放置於抽屜內上訴人的銀行存摺內。辯方當時的立場是身份證只是放在抽屜內，而非放在上訴人的銀行存摺內。" } }, { "doc_id": 134, "seg_id": 13, "translation": { "en": "Information shows that when a police officer was making a post-record of the appellant’s cautioned statement, the appellant said he picked up the identity card on 24 September 2014 on Lai Chi Kok Road, Sham Shui Po. The appellant further alleged that he intended to “hand” it “over to the police station”, but “it was kept there for the time being because (he was) leaving home in a hurry”. When the officer went on to ask him why he did not give such an explanation during the house search, the appellant responded by saying “(I) forgot because (I) was nervous”. The appellant also said he could not remember the time he picked up the identity card on 24 September 2014, but alleged that the identity card was picked up from the ground of Sham Shui Po Sports Ground.", "zh-HK": "有資料顯示，警員在補錄上訴人在警誡下的說法時，上訴人表示他是在2014年9月24日在深水埗荔枝角道拾到身份證。上訴人聲稱打算將身份證“交還警處”，但因為“趕時間出門口，所以放咗喺到先”。警員再問上訴人為何在搜屋時沒有作出該解釋，上訴人的回應是“因為緊張，所以忘記咗”。上訴人亦表示不記得在2014年9月24日拾到身份證的時間，但他指身份證是在深水埗運動場地下拾到的。" } }, { "doc_id": 134, "seg_id": 14, "translation": { "en": "In his subsequent video-recorded interview with the police, the appellant reiterated that the identity card was picked up on Lai Chi Kok Road near Sham Shui Po Sports Ground on 24 September 2014. He said he put the identity card in his room the same day, but could not remember the exact time. He also alleged that no one was nearby when he picked up the identity card and that no one knew he put the identity card in his room.", "zh-HK": "其後，警員和上訴人有進一步的錄影會面。上訴人重申身份證是在2014年9月24日在荔枝角道近深水埗運動場附近拾到的。上訴人指他是在同日將身份證放在房間，但確實時間他則記不到。上訴人聲稱他拾起身份證時，附近沒有人，亦沒有其他人知道他將身份證放在房間。" } }, { "doc_id": 134, "seg_id": 15, "translation": { "en": "When asked by the officer where he was in the afternoon of 29 June 2014 (i.e. when the identity card was stolen) and if he would go to Silverstrand Beach, Tseung Kwan O, the appellant said he could not remember. The appellant maintained that he had never used the identity card for other purposes, nor had he given the particulars of the identity card or shown the identity card to anyone. That said, the above post-record and the video-recorded interview did not form part of the admitted facts.", "zh-HK": "警員有問過上訴人於2014年6月29日下午（即身份證被盜時）身處甚麼地方及他是否會去將軍澳銀線灣泳灘。上訴人都表示不記得。上訴人力稱他沒有使用過身份證作其他用途，亦沒有將身份證的資料交給他人或讓他人看過身份證。但上述補錄和錄影會面內容並非是同意案情的一部份。" } }, { "doc_id": 134, "seg_id": 16, "translation": { "en": "11.In his evidence, LAU Chun Ho confirmed that the identity card, which had been stolen from him, had not been misused or used illegally by others.", "zh-HK": "劉振豪作供時，確認其被盜的身份證沒有被人不當或非法使用過。" } }, { "doc_id": 134, "seg_id": 17, "translation": { "en": "The Appellant’s Position", "zh-HK": "上訴人的立場" } }, { "doc_id": 134, "seg_id": 18, "translation": { "en": "12.The appellant did not give evidence, nor did he call any witness to give evidence. His position was that he admitted possession of an identity card which related to another person, but the explanation given by him under caution had constituted a “reasonable excuse” for so doing. As a result, he should be acquitted of charge 10 that he faced.", "zh-HK": "上訴人沒有作供，亦沒有傳召證人作供。他的立場是他承認管有他人的身份證，但他在警誡下作出的解釋，已構成管有他人的身份證的“合理辯解”，故針對他的第十項控罪不成立。" } }, { "doc_id": 134, "seg_id": 19, "translation": { "en": "The Reasons for Verdict of the Trial Judge", "zh-HK": "原審法官的裁決理由" } }, { "doc_id": 134, "seg_id": 20, "translation": { "en": "13.Regarding “lawful authority or reasonable excuse” as a defence, the trial judge agreed that the prosecution had the legal burden to prove that the appellant’s possession of an identity card relating to another person was without lawful authority or reasonable excuse, failing which the court could not find the appellant guilty of the charge. However, the trial judge had made it clear that the appellant had the evidential burden to raise the defence that he had lawful authority or reasonable excuse. The trial judge did not agree that the appellant had sufficiently discharged his evidential burden by saying under caution that he had picked up the identity card on the street, nor did he agree that the prosecution’s evidence was not sufficient to successfully rebut his allegation. The trial judge ruled that the prosecution’s evidence was sufficient to prove that the appellant did have in his possession such identity card without lawful authority or reasonable excuse. As a result, the trial judge found the appellant guilty of charge 10.", "zh-HK": "就“合法權限或合理辯解”這答辯理由，原審法官同意控方有舉證責任，要證明上訴人是在沒有合法權限或合理辯解而管有他人身份證，否則法庭不能裁定上訴人罪名成立。但原審法官表明上訴人有證據/提證責任，提出他有合法權限或合理辯解這免責理由。原審法官不同意上訴人在警誡下說過他是在街上拾取到身份證一事便足以履行其證據/提證責任，而控方的證據不足以成功反駁他的說法。原審法官裁定控方的證據足以證明上訴人是沒有合法權限或合理辯解而管有身份證，因此，原審法官裁定上訴人第十項控罪罪名成立。" } }, { "doc_id": 134, "seg_id": 21, "translation": { "en": "14. The trial judge underlined the following:", "zh-HK": "原審法官強調：" } }, { "doc_id": 134, "seg_id": 22, "translation": { "en": "“In the first place, given the fact that (the appellant) elected not to give evidence, the weight which could be given to the exculpatory statement under caution almost amounts to nought. More importantly, even if (the appellant) really did pick up the identity card on the street inadvertently, he should not have had it in his possession for as long as two odd months, nor was he allowed to do so. As a result, I do not agree that (the appellant) has adduced sufficient credible evidence to raise the issue of lawful authority or reasonable excuse. I repeat that I have absolute respect for the (appellant’s) legal right to remain silent. However, in respect of a charge involving the evidential burden, the court needs to look for relevant evidence. Since (the appellant) has failed to adduce concrete evidence, the court rules that the prosecution has succeeded in proving charge (10).”", "zh-HK": "“首先（上訴人）選擇不作供，其警誡下的開脫性陳述可給予的比重近乎零。更重要的是，即使（上訴人）真的是在街上不經意地拾到該身份證，也不應亦不能管有它長達兩個多月之久。故此，本席並不同意（上訴人）在本案已提出足夠可信納的證據，對合法權限或合理辯解提出爭議。本席重申，絕對尊重（上訴人）保持緘默的法律權利；然而，當控罪涉及證據責任時，法庭便需要尋找相關的證據。既然（上訴人）未能提出實則證據，法庭裁定控方就控罪[10]已成功舉證。”" } }, { "doc_id": 134, "seg_id": 23, "translation": { "en": "15.The trial judge did not deal with what was said and given in explanation by the appellant in the post-record and the video-recorded interview in detail, in particular his allegation that he only picked up the identity card on 24th September 2014, for the obvious reason that such a claim lacked supporting evidence at all. The appellant did not give evidence, and the explanation that he gave was not part of the prosecution’s evidence. The trial judge seemed to be convinced that the appellant had had in his possession the identity card for as long as two months, hence rejecting the claim that the appellant only picked up the identity card on 24th September 2014.", "zh-HK": "原審法官沒有詳細處理上訴人在補錄及錄影會面時說過的話及作出過的解釋，特別是他指是在2014年9月24日才拾到身份證的說法，原因明顯是該說法完全沒有證據支持。上訴人沒有作供，而他作出過的解釋亦非控方證據的一部分。原審法官看似認定上訴人管有身份證長達兩個月，故不接納據稱上訴人是在2014年9月24日才拾到身份證的說法。" } }, { "doc_id": 134, "seg_id": 24, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 134, "seg_id": 25, "translation": { "en": "16.Mr Jackson Poon, counsel for the appellant, submitted that the trial judge was wrong in thinking that the appellant had had in his possession the identity card for as long as two odd months, the reason being the absence of evidence in this regard. Mr Poon emphasized that according to the appellant, he picked up the identity card in the area of Shum Shui Po on 24th September 2014.", "zh-HK": "代表上訴人的潘展平大律師指原審法官錯誤認為上訴人管有身份證長達2個多月，原因是沒有這方面的證據。潘大律師強調根據上訴人的說法，他是在2014年9月24日在深水埗區拾獲身份證的。" } }, { "doc_id": 134, "seg_id": 26, "translation": { "en": "17.Mr Poon pressed the point that the prosecution had no evidence to rebut the claim that the appellant only picked up the identity card two days prior to the incident, and that he intended to hand the identity card to the police. Mr Poon stressed that the identity card had not been abused. In his view, the appellant did have reasonable excuse for possession of an identity card which related to another person.", "zh-HK": "潘大律師力稱控方沒有證據反駁上訴人是在案發前兩天才拾獲身份證，而他是打算將身份證交給警方的說法。潘大律師強調身份證沒有被濫用過。他認為上訴人就管有他人身份證一事有合理辯解。" } }, { "doc_id": 134, "seg_id": 27, "translation": { "en": "Further Submission", "zh-HK": "進一步陳述" } }, { "doc_id": 134, "seg_id": 28, "translation": { "en": "18.At the invitation of the court, both parties addressed the court further on the issue of burden of proof concerning “without lawful authority or reasonable excuse” as that was specified in the offence.", "zh-HK": "在法庭的邀請下，雙方就罪行所指“無合法權限或合理辯解”的舉證責任這議題向法庭作出進一步陳述。" } }, { "doc_id": 134, "seg_id": 29, "translation": { "en": "19.Mr Poon’s position was that the relevant charge contains two elements of offence, namely (i) possession of an identity card relating to another person; and (ii) without lawful authority or reasonable excuse. Mr Poon’s position was that the prosecution has the legal burden to prove the two elements of offence in order for the court to find the appellant guilty. Mr Poon relied on such cases as Lam Yuk Fai v. HKSAR [2006] 2 HKLRD 165 and Tong Yiu Wah v. HKSAR [2007] 3 HKLRD 565 in support of his argument.", "zh-HK": "潘大律師的立場是有關控罪包括兩項控罪原素，即(一) 管有他人身份證；及(二) 無合法權限或合理辯解。潘大律師的立場是控方有舉證責任證明該兩項控罪元素，法庭才能裁定上訴人有罪。潘大律師援引林育輝對香港特別行政區 [2006] 2 HKLRD 165。湯耀華對香港特別行政區 [2007] 3 HKLRD 565等案支持其立場。" } }, { "doc_id": 134, "seg_id": 30, "translation": { "en": "20.Mr Poon also submitted that the appellant does not have any legal burden or evidential burden to raise an issue on “without lawful authority or reasonable excuse”. It was Mr Poon’s position that the trial judge was wrong in ruling that the appellant had the evidential burden to raise that he had reasonable excuse.", "zh-HK": "潘大律師亦指就“無合法權限或合理辯解”這議題，上訴人沒有舉證責任(legal burden)，亦沒有證據/提證責任(evidential burden)就該議題提出爭議。潘大律師的立場是原審法官指上訴人有證據/提證責任(evidential burden)去提出他有合理辯解的裁決是錯誤的。" } }, { "doc_id": 134, "seg_id": 31, "translation": { "en": "The Respondent’s Position", "zh-HK": "答辯人的立場" } }, { "doc_id": 134, "seg_id": 32, "translation": { "en": "Ms Vinci Lam, Senior Assistant Director of Public Prosecutions, contended on behalf of the respondent that “without lawful authority or reasonable excuse” is not an element of the charge in this case. She pointed out that the appellant not only has the evidential burden to raise the defence of reasonable excuse, but also has the legal burden to adduce sufficient and credible evidence to support that contention, as well as to bring out reasonable doubt in the prosecution’s allegation before he can successfully be acquitted.", "zh-HK": "代表答辯人的高級助理刑事檢控專員林穎茜力稱在本案，“無合法權限或合理辯解”並非控罪的元素。她指上訴人不但有證據/提證責任(evidential burden)提出有合理辯解這答辯理由，更有舉證責任(legal burden)提出充份和可信的證據支持該論點，及對控方的指控帶出合理疑點，才能成功脫罪。" } }, { "doc_id": 134, "seg_id": 33, "translation": { "en": "Ms Lam set out in detail the record of the legislative proceedings for s.7A(1A) as follows:", "zh-HK": "林專員詳細列出第7A(1A)條的以下立法記錄：" } }, { "doc_id": 134, "seg_id": 34, "translation": { "en": "“Sir, I move that the Registration of Persons (Amendment) Bill 1989 be read a Second time.", "zh-HK": "“主席先生，我謹動議二讀1989年人事登記（修訂）條例草案。" } }, { "doc_id": 134, "seg_id": 35, "translation": { "en": "The purpose of the Bill is to deter the deliberate misuse of identity cards. The two main proposed amendments to the Registration of Persons Ordinance are: first, to make it an offence for a person to have in his custody or possession, without lawful authority or reasonable excuse, an identity card relating to another person; and second, to make clear the offence of unlawful transfer of an identity card to another person.", "zh-HK": "本條例草案的目的，是防止一切人士故意濫用身份證。建議對人事登記條例作出的兩項主要修訂包括：第一，規定任何人士如無合法授權或合理的理由而保管或藏有他人的身份證，即屬違法；第二，清楚規定任何人士如把身份證非法轉讓他人，也屬違法。" } }, { "doc_id": 134, "seg_id": 36, "translation": { "en": "Under existing legislation, the possession, without lawful authority or reasonable excuse, of an identity card relating to another person, is not an offence. Using it, however, is an offence under the Registration of Persons Regulations. A loophole in the existing legislation therefore exists where no prosecution can be instituted against persons who are found with identity cards belonging to others in their possession, and there is no evidence of their having used those cards. This is clearly undesirable and it is therefore proposed in clause 4(b) of the Bill to make possession also an offence. The opportunity is also taken to impose heavy penalties as a deterrent against such activities.", "zh-HK": "根據現行法例，沒有合法授權或合理理由而藏有他人的身份證，不屬違法。不過，根據人事登記規例，使用他人的身份證則屬違法。因此，現行法例有一個漏洞，就是在發現有人藏有他人的身份證時，如沒有證據證明該人曾使用該身份證，便無法提出起訴。這種情況顯屬不妥，因此，本條例草案第4(b)條建議，藏有他人的身份證，亦屬違法。當局亦藉此機會訂出嚴竣罰則，以收阻嚇作用。" } }, { "doc_id": 134, "seg_id": 37, "translation": { "en": "The amendments in this Bill are necessary because an identity card is no longer merely a proof of identity. It can also be used as a travel document into and out of Hong Kong. This is an incentive for racketeers to relentlessly steal and transfer identity cards belonging to others for deliberate misuse by impersonators or illegal immigrants. It is hoped that this new legislation and the heavy penalties proposed — a fine of $20,000 and imprisonment for two years on summary conviction, or a fine of $50,000 and imprisonment for 10 years on conviction on indictment — will act both as an effective deterrent and as a means of prosecuting those who abuse our identity card system.”", "zh-HK": "本條例草案中的各項修訂均屬必需，因為身份證已不僅是身份的證明，亦是可用作進出香港的旅遊證件。因此，不法之徒遂千方百計盜取他人的身份證，以便轉讓給假冒他人身份的人或非法入境者，讓他們可在明知故犯的情況下使用別人的身份證。當局希望新的法例和法例中所建議的嚴峻罰則 ― 經簡易程序審訊定罪者，可被判罰款2萬元和入獄兩年；經公訴程序治罪者，可被判罰款5萬元和入獄10年 ― 可起有效的阻嚇作用，並可讓當局得以檢控那些濫用我們的身份證制度的人。”" } }, { "doc_id": 134, "seg_id": 38, "translation": { "en": "Ms Lam’s position was that “possession of an identity card relating to another person” and “using an identity card relating to another person” are both inherently culpable acts, whereas the defences of “lawful authority and reasonable excuse” etc. are not elements of the offence, but rather exceptions. Ms Lam emphasized that in order to rely on those defences, the defendant not only has to have the evidential burden to raise that defence, but also has the legal burden to adduce convincing evidence before that defence can be established.", "zh-HK": "林專員的立場是“管有他人身份證”和“使用他人身份證”都是固有可責罰的行為，而“合法權限和合理辯解”等答辯理由並非控罪的元素，而是例外的部份。林專員強調如要依賴該等答辯理由，被告人不但有證據/提證責任(evidential burden)去提出該答辯理由，亦有舉證責任(legal burden)提出令人信服的證據，才能確立該答辯理由。" } }, { "doc_id": 134, "seg_id": 39, "translation": { "en": "24．Ms Lam emphasized that what was dealt with in Lam Yuk Fai was s.42(2) of the Immigration Ordinance, which distinguishes between (i) forging or altering without lawful authority (a document) and (ii) transferring (a document) to another without reasonable excuse. Ms Lam pointed out that the former is already an offence in its own right whereas the latter constitutes an offence only with the inclusion of “without reasonable excuse”. Ms Lam was of the view that it was due to the above reason that the Court of Final Appeal held that when dealing with the offence of transferring a travel document to another without reasonable excuse, the prosecution has the legal burden to prove that the defendant does not have reasonable excuse before the court can convict the defendant.", "zh-HK": "林專員強調林育輝案所處理的是《入境條例》第42(2)條，而該條例將(i) 偽造或沒有合法授權而改動（證件）和(ii) 沒有合理辯解而向另一人轉讓（證件）身份俱分。林專員指出前者本身已是罪行，而後者要包括“沒有合理辯解”才構成罪行。林專員認為是因為上述原因，終審法院裁定處理沒有合理辯解向另一人轉讓旅行證件罪行時，控方有舉證責任證明被告人沒有合理辯解，法庭才能裁定被告人罪名成立。" } }, { "doc_id": 134, "seg_id": 40, "translation": { "en": "25.Ms Lam emphasized that s.7A(1) and (1A) of the Registration of Persons Ordinance concern the use or the possession of a forged identity card, and the use or the possession of an identity card relating to another person respectively, and that the structures of the two provisions are identical, i.e. the presence of the same introductory phrase of “Any person who without lawful authority or reasonable excuse” before “uses or has in his possession a forged identity card” and “uses or has in his possession an identity card which relates to another person”. Ms Lam asserted that s.7A(1) prohibits the use and the possession of a forged identity card, which are extremely serious and inherently culpable offences. If a defendant uses lawful authority or reasonable excuse to justify his use and possession of a forged identity card, he has the evidential burden to raise that defence and the legal burden to prove that defence. Likewise, if a defendant uses lawful authority or reasonable excuse to justify his use or possession of an identity card relating to another person, he also has the burdens of both raising and proving that defence.", "zh-HK": "林專員強調《人事登記條例》第7A(1)及(1A)條分別涉及使用或管有偽造身份證及使用或管有他人身份證，而兩條條例結構相同，即在使用或管有偽造身份證及使用或管有他人身份證前都有“任何人無合法權限或合理辯解”這相同引言。林專員力稱第7A(1)條是禁止使用及管有偽造身份證，而使用及管有偽造身份證是極為嚴重及固有可責罰的責行。如被告人要以合法權限或合理辯解來將使用及管有偽造身份證的行為合法化，被告人有證據/提證責任提出該答辯理由，亦有舉證責任去證明該答辯理由。同樣地，如被告人要以合法權限或合理辯解來將使用或管有他人身份證的行為合理化，被告人亦有責任提出及證明該答辯理由。" } }, { "doc_id": 134, "seg_id": 41, "translation": { "en": "26.Ms Lam reiterated that pursuant to s.7A(1A), using an identity card relating to another person concerns an inherently culpable act. Thus, if lawful authority or reasonable excuse is to be used as the defence for that offence, the defendant has the burdens of both raising and proving that pleaded defence. Ms Lam pointed out that s.7A(1A) covers both using an identity card relating to another person and being in possession/custody of an identity card relating to another person, and that it is relatively obvious that the using of an identity card relating to another person involves the intention to commit illegal activities. Thus, it must be an inherently culpable act.", "zh-HK": "林專員重申根據第7A(1A)條，使用他人身份證涉及固有可責罰的行為，故如要以合法權限或合理辯解作為該罪行的免責理由，被告人有責任提出及證明該免責理由。林專員指出第7A(1A)條涵蓋使用他人身份證及管有/保管他人身份證，而使用他人身份證涉及干犯非法活動的意圖較為明顯，因此，必然是固有可責罰的行為。" } }, { "doc_id": 134, "seg_id": 42, "translation": { "en": "27.Ms Lam was of the view that same as using an identity card relating to another person, in dealing with the charge of being in possession/custody of an identity card relating to another person, if a defendant uses lawful authority or reasonable excuse as his defence, he also has the burdens of both raising and proving that pleaded defence; otherwise, in dealing with offences under the same provision, the court has to adopt different burdens of proof, which is not a reasonable approach.", "zh-HK": "林專員認為和使用他人身份證相同，處理管有/保管他人身份證的控罪時，如被告人要以合法權限或合理辯解作為免責理由時，被告人亦有責任提出及證明該免責理由，否則在處理同一條罪行時，法庭須要採納不同的舉證責任，而該處理方法並非合理。" } }, { "doc_id": 134, "seg_id": 43, "translation": { "en": "28.Ms Lam also emphasized that identity card is an extremely important proof of a person’s identity. Every adult has the duty to duly keep his own identity card safely and should not have in his possession an identity card relating to another person or more than one identity card. Thus, it is reasonable to legally require a person having in his possession an identity card relating to another person to bear the evidential burden and even the legal burden to prove that he has the defence of lawful authority or reasonable excuse before he can be exonerated.", "zh-HK": "林專員亦強調身份證是極為重要的個人身份證明。每名成年人都有責任妥善保管其個人身份證，亦不應管有他人或多於一張的身份證。因此，法例要求一名管有他人身份證的人，有證據/提證甚至舉證責任證明他有合法權限或合理辯解的辯護理由才能脫罪是合理的。" } }, { "doc_id": 134, "seg_id": 44, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 134, "seg_id": 45, "translation": { "en": "29.We are of the view that in considering the proper interpretation of a particular ordinance, we have to take a reasonable approach in accordance with the wording used in and the mischief to be tackled by that ordinance. Approaches adopted in dealing with different ordinances in other cases may not necessarily be applicable.", "zh-HK": "本庭認為考慮個別條例的恰當詮釋時，必須根據該條例的用詞，就其針對的不當行為以合理的方法處理。其他案件處理不同條例的處理方法不一定適用。" } }, { "doc_id": 134, "seg_id": 46, "translation": { "en": "30.S.7A(1) and (1A) of the Registration of Persons Ordinance provide as follows:", "zh-HK": "《人事登記條例》第7A(1)及(1A)條列明：" } }, { "doc_id": 134, "seg_id": 47, "translation": { "en": "“(1)Any person who without lawful authority or reasonable excuse uses or has in his custody or possession a forged identity card or other document issued under this Ordinance commits an offence and is liable—", "zh-HK": "“(1)任何人無合法權限或合理辯解，而使用或保管或管有偽造身分證或根據本條例發出的其他文件的偽造本，即屬犯罪 —" } }, { "doc_id": 134, "seg_id": 48, "translation": { "en": "(a)on conviction on indictment to a fine at level 6 and to imprisonment for 10 years; and", "zh-HK": "(a)循公訴程序定罪後，可處第6級罰款及監禁10年；及" } }, { "doc_id": 134, "seg_id": 49, "translation": { "en": "(b)on summary conviction to a fine at level 5 and to imprisonment for 2 years.", "zh-HK": "(b)循簡易程序定罪後，可處第5級罰款及監禁2年。" } }, { "doc_id": 134, "seg_id": 50, "translation": { "en": "(1A)Any person who without lawful authority or reasonable excuse uses or has in his custody or possession an identity card or other document issued under this Ordinance which relates to another person commits an offence and is liable—", "zh-HK": "(1A)任何人無合法權限或合理辯解，而使用或保管或管有他人身分證或根據本條例發出而屬於他人的其他文件，即屬犯罪 —" } }, { "doc_id": 134, "seg_id": 51, "translation": { "en": "(a)on conviction on indictment to a fine at level 6 and to imprisonment for 10 years; and", "zh-HK": "(a)循公訴程序定罪後，可處第6級罰款及監禁10年；及" } }, { "doc_id": 134, "seg_id": 52, "translation": { "en": "(b)on summary conviction to a fine at level 5 and to imprisonment for 2 years.”", "zh-HK": "(b)循簡易程序定罪後，可處第5級罰款及監禁2年。”" } }, { "doc_id": 134, "seg_id": 53, "translation": { "en": "31.In general, using an identity card relating to another person is of the same nature as altering without lawful authority or forging a travel document. Offence like using an identity card relating to another person or altering a travel document etc., which is obviously a serious and unusual act, amounts to an inherently culpable offence. A defendant accused of using an identity card relating to another person or altering a travel document has to prove that he has the defence of “lawful authority or reasonable excuse” if he is to be absolved, a matter to which Mr Poon did not oppose.", "zh-HK": "一般而言，使用他人身份證和偽造或無合法權限改動旅行證件的性質相同。使用他人身份證或改動旅行證件等罪行，明顯是嚴重及不尋常的行為，屬固有可責罰的罪行。如被指控使用他人身份證或改動旅行證件的被告人要免除罪責，他必須證明他有“合法權限或合理辯解”的免責條款。對此，潘大律師不表異議。" } }, { "doc_id": 134, "seg_id": 54, "translation": { "en": "32.Upon the amendment of s.7A(1A), “using an identity card relating to another person” and “possession of an identity card relating to another person” appear under the same provision as offences of the same category with both “lawful authority” and “reasonable excuse” being the defences to those two types of offences under the same provision, so it would be unusual to regard the burden of proof of the two as different. Ms Lam’s argument is a strong and cogent one.", "zh-HK": "當經修訂後的第7A(1A)條將“使用他人身份證”和“管有他人身份證”視為同類罪行在同一條例內出現，而“合法權限”和“合理辯解”在同一條例都是該兩類罪行的免責理由時，視兩者的舉證責任不同是不尋常的。林專員的論據是強而有力的。" } }, { "doc_id": 134, "seg_id": 55, "translation": { "en": "33.However, where the same ordinance deals with two types of contravention of different nature, with one involving inherently culpable conduct and the other one not, it would not be unreasonable for the court to adopt a different approach when considering the burden of proof for the defence of “lawful authority” and “reasonable excuse”. This court cannot ignore the fact that possession of an identity card relating to another person was not an offence originally. It was not until the amendment in 1989 that it was made an offence like using an identity card belonging to another person. Possession of an identity card relating to another person and using an identity card relating to another person are different in nature; also, the gravity of the two offences are not the same.", "zh-HK": "但當同一條例處理兩類性質不同的違法行為，一類涉及固有可責罰的行為，另一類則不是，法庭考慮“合法權限”和“合理辯解”這免責條款的舉證責任時，採納不同的處理方法亦並非是不合理的。本庭不能忽視管有他人身份證原並非是罪行，是在1989年經修訂後，才和使用他人身份證一樣成為罪行。管有他人身份證和使用他人身份證性質不同，嚴重性亦有分別。" } }, { "doc_id": 134, "seg_id": 56, "translation": { "en": "34.This court should point out that in daily life, it happens quite often that people have in their possession/custody an identity card relating to another person, which may not necessarily involve inherently culpable conduct. For example, parents may have in their possession their children’s identity cards for safety reasons; spouses may, for some reasons, have in their possession the identity card of one another; the same is true for family members too. In some commercial transactions, staff members may also need to keep the customers’ identity cards for a short while. Under the above circumstances, if those parents, spouses, family and staff members must discharge their legal burden by establishing the defence of “lawful authority” or “reasonable excuse” before they can absolve themselves from liability, it will bring huge trouble to these people who are in possession of an identity card relating to another person. Yet, this court also needs to point out that, under the above circumstances, there shall not be any difficulty for those charged with possession of an identity card relating to another person to raise the defence of “reasonable excuse”.", "zh-HK": "本庭應指出，在日常生活中管有/保管他人身份證是常會發生，不一定涉及任何固有可責罰的行為。例如家長為安全理由會替子女管有身份證；配偶可能為某種原因替對方管有身份證，家人亦如是。在某些商業交易，工作人員亦可能要短暫替客戶管有身份證。在上述情況下，要管有他人身份證的父母、配偶、家人或工作人員必須履行舉證責任證明“合法權限”或“合理辯解”這答辯理由才能免除罪責，對該些管有他人身份證的人士會造成極大困擾。但本庭亦應指出，在上述情況下，被指控管有他人身份證的人士要提出“合理辯解”這免責理由亦是輕而易舉的。" } }, { "doc_id": 134, "seg_id": 57, "translation": { "en": "35.In HKSAR v Lam Yuk Fai (2006) 9 HKCFAR 281, the Court of Final Appeal dealt with a case involving s.42(2)(a)(ii) of the Immigration Ordinance, namely the transfer of a travel document to another without reasonable excuse, and transfer includes “take or convey from one place or person or situation or time of occurrence to another, and it can mean transmit, transport or hand over from one to another”. The Court of Final Appeal ruled that there are two elements to the offence: the first involving the transfer of a travel document and the second being the requirement that the transfer should be without reasonable excuse. The Court of Final Appeal ruled that for charges of conspiracy to transfer a travel document to another person without reasonable excuse, the burden is on the prosecution to negative the reasonable excuse of the defendant while the defendant does not have the duty to prove anything.", "zh-HK": "在HKSAR v Lam Yuk Fai (2006) 9 HKCFAR 281案，終審法院處理的案件涉及《入境條例》第42(2)(a)(ii)條，即沒有合理辯解而向另一人轉讓旅行證件罪，而轉讓是包括“從一個地方、一個人、一個情況或一個發生時間帶到或傳送到另一個地方、另一個人、另一個情況或另一個發生時間，亦可解作由一人轉交、運送或移交至另一人”。終審法院裁定該罪行的要素有兩項：第一，轉讓旅行證件；及第二，須在沒有合理辯解下作出該轉讓。終審法院裁定當控方檢控被告人串謀在沒有合理辯解下向另一人轉讓旅行證件時，控方是有否定被告人有合理辯解的舉證責任，而被告人是沒有任何舉證責任。" } }, { "doc_id": 134, "seg_id": 58, "translation": { "en": "36.The Court of Final Appeal emphasized that transferring (including transporting) a travel document is different in nature from possession of a weapon in a public place. The policy of the legislator is that it is an offence to possess a weapon in a public place; however, transferring a travel document by itself is not an inherently culpable act unless the transfer is for some other unlawful purposes such as to facilitate the use of that travel document for an unlawful or dishonest purpose by others. Therefore, the prosecution needs to prove that an accused transferred a travel document without reasonable excuse before a conviction can be made. The Court of Final Appeal referred to Tse Mui Chun v HKSAR (2003) 6 HKCFAR 601 and compared it with R v Matthews [2003] EWCA Crim 813 so as to highlight the point that there could only be a prosecution if there was the evidence that the transfer was taking place to assist in the passport being used for an unlawful or dishonest purpose by others.", "zh-HK": "終審法院強調轉讓包括運送旅行證件的性質和在公眾地方管有兇器不同。立法者的政策是在公眾地方管有兇器是違法行為，但轉讓旅行證件本身並非是固有可責罰的行為，除非轉讓是有其他非法目的，例如是為了協助他人使用該旅行證件作非法或不誠實用途。因此，控方要證明被控人無合理辯解轉讓旅行證件，法庭才能將他定罪。終審法院援引Tse Mui Chun v HKSAR (2003) 6 HKCFAR 601並對比R v Matthews [2003] EWCA Crim 813案以強調除非有證據證明轉讓護照之舉是為了協助他人使用護照作非法或不誠實用途，否則控方根本無法提出檢控。" } }, { "doc_id": 134, "seg_id": 59, "translation": { "en": "37.This court believes that possession of an identity card relating to another person is more serious than transporting a passport belonging to another person. Even if there is no evidence from the prosecution to prove that an accused possessed someone else’s identity card so as to use it for an unlawful or dishonest purpose, a prosecution can still be undertaken. However, the prosecution has the duty to prove that the accused is without legal authority or reasonable excuse. Otherwise the accused must not be convicted.", "zh-HK": "本庭認為管有他人身份證，較運送他人護照為嚴重，即使控方沒有證據證明管有他人身份證之舉是為了使用身份證作非法或不誠實用途，控方仍可作出檢控，但控方有責任證明被控人沒有合法權限或合理辯解，否則法庭不應判被控人有罪。" } }, { "doc_id": 134, "seg_id": 60, "translation": { "en": "38.The fact that the burden of proof lies upon the prosecution does not mean such a burden is to be discharged blindly with no basis. Before this burden is triggered, the accused must first raise that defence as well as his version in support thereof. Otherwise, the prosecution will have no way of discharging its burden. The court cannot expect the prosecution to conduct cases like a blind man feeling around for clues.", "zh-HK": "控方具舉證責任，不表示該舉證責任是要在全無基礎及盲目地履行。要引發該舉證責任，被控者必先要提出該免責理由及支持該免責理由的說法，否則控方無從履行其舉證責任。法庭不可能冀望控方要以瞎子摸象的方法處理事件。" } }, { "doc_id": 134, "seg_id": 61, "translation": { "en": "39.In the case of Lam Yuk Fai, Lord Woolf NPJ stated in paragraph 32 of the judgment:", "zh-HK": "在Lam Yuk Fai案，終審法院非常任法官Lord Woolf在判案書第32段表明：" } }, { "doc_id": 134, "seg_id": 62, "translation": { "en": "“Many, if not most offences, that create an offence and then provide that there will be no offence if the defendant has a reasonable excuse for his offending conduct no doubt place at least an evidential burden on the defendant to raise the defence if not a persuasive or legal burden (see for example Tse Mui Chun v. HKSAR (2003) 6 HKCFAR 601).”", "zh-HK": "“很多（即使並非大多數）罪行先訂立一項罪行，然後訂明，被告人如對其違法行為有合理辯解，便不屬犯罪。對於有意提出如此抗辯的被告人，這些條文即使沒有施加說服性的舉證責任或法律舉證責任，也無疑是至少施加證據/提證責任（參閱例如Tse Mui Chun v. HKSAR (2003) 6 HKCFAR 601）。”" } }, { "doc_id": 134, "seg_id": 63, "translation": { "en": "40.The above views were agreed to by the Court of Final Appeal in the case of Tong Yiu Wah v HKSAR (2007) 10 HKCFAR 324.", "zh-HK": "上述主張獲終審法院在湯耀華對香港特別行政區 (2007) 10 HKCFAR 324案認同。" } }, { "doc_id": 134, "seg_id": 64, "translation": { "en": "41.It is highly unusual for someone to have in his possession an identity card relating to another person. The trial judge was of the opinion that the appellant had the evidential burden to raise the issue of “reasonable excuse” and adduce sufficient credible evidence in support of such, whereas the prosecution needed to discharge its burden of proof by adducing evidence in rebuttal, so as to prove that the appellant possessed Lau Chun Ho’s identity card without lawful authority or reasonable excuse, and only then could the court convict him. The trial judge’s decision is both correct and reasonable.", "zh-HK": "管有他人身份證是極不尋常的行為。原審法官認為上訴人有證據/提證責任(evidential burden)提出“合理辯解”這議題及足夠可信納的證據(sufficient credible evidence)來支持該議題，而控方需要提出反駁(rebuttal)以履行其舉證責任，證明上訴人沒有合法權限或合理辯解而管有劉振豪的身份證時，法庭才能將上訴人定罪。原審法官的裁決是正確和合理的。" } }, { "doc_id": 134, "seg_id": 65, "translation": { "en": "42.The undisputed fact is that the appellant had Lau Chun Ho’s identity card in his possession. Therefore, the only issue of this case is whether the appellant had any lawful authority or reasonable excuse to possess Lau’s identity card. In dealing with the above issue, the appellant has the evidential burden to raise the defence of reasonable excuse and the prosecution has the persuasive or legal burden to rebut the “reasonable excuse” defence raised by the appellant before it can convince the court to convict the appellant.", "zh-HK": "上訴人管有劉振豪的身份證是不爭的事實。因此，案件唯一的爭議是上訴人是否有合法權限或有合理辯解管有劉振豪的身份證。在處理上述議題時，上訴人有證據/提證責任提出合理辯解的免責理由，控方則有說服性或法律舉證責任推翻上訴人提出的“合理辯解”的答辯理由，才能說服法庭將上訴人定罪。" } }, { "doc_id": 134, "seg_id": 66, "translation": { "en": "43.How should the prosecution prove that the appellant possessed Lau Chun Ho’s identity card without lawful authority or reasonable excuse? This court believes that in order to discharge such a burden of proof, the prosecution must prove that the appellant’s version given in support of lawful authority or reasonable excuse is not true.", "zh-HK": "控方如何證明上訴人是沒有合法權限或合理辯解管有劉振豪的身份證？本庭認為要履行該舉證責任，控方須證明上訴人提出以支持合法權限或合理辯解的說法並非真確。" } }, { "doc_id": 134, "seg_id": 67, "translation": { "en": "44.Since the appellant was a stranger to Lau Chun Ho, it is therefore not possible that he would have lawful authority to possess Lau’s identity card. In this case, the only thing that can lend support to the appellant’s reasonable excuse for possessing Lau’s identity card was his own version of the matter, namely that he picked up the identity card and he intended to hand it over to the police station.", "zh-HK": "上訴人不認識劉振豪，故不可能有合法權限管有他的身份證。案中唯一能支持上訴人有合理辯解管有劉振豪的身份證是上訴人的說法，即他是拾到身份證，並打算將身份證交到警署。" } }, { "doc_id": 134, "seg_id": 68, "translation": { "en": "45. We agree that if the appellant’s account is true or may be true, there will be doubt in respect of the charge against him, then he should be given the benefit of the doubt and acquitted.", "zh-HK": "本庭同意如上訴人的說法是真的或可能是真的，針對上訴人的控罪有疑點，而法庭亦須給予他疑點得益，並判他罪名不成立。" } }, { "doc_id": 134, "seg_id": 69, "translation": { "en": "46.Mr Poon contended that when rejecting the appellant’s account, the trial judge only considered the appellant’s statement at the time of the arrest that the identity card was picked up on the street, and did not consider his further explanations in the post-record and the video-recorded interview.", "zh-HK": "潘大律師力稱原審法官否定上訴人的說法時，只考慮上訴人被捕時說身份證是在街拾到，而沒有考慮他在補錄和錄影會面時進一步的解釋。" } }, { "doc_id": 134, "seg_id": 70, "translation": { "en": "47.However, we should point out that the appellant neither gave evidence nor called any witness. Hence, the defence did not adduce any evidence during the trial to support the appellant’s account in the video-recorded interview that the identity card was picked up on 24 September 2014. The trial judge based his verdict on the admitted facts between the prosecution and the defence, and according to the admitted facts, the appellant’s response to the incident was “I picked it up on the street” only without including his further explanations made in the post-record and the video-recorded interview. This explains why the trial judge did not deal with the further explanations given by the appellant.", "zh-HK": "但本庭應指出，上訴人沒有作供亦沒有傳召證人作供。因此，原審時，辯方是沒有提出任何證據支持上訴人在錄影會面時的說法，指身份證是在2014年9月24日才拾到。原審法官的裁決是建基在控辯雙方的承認事實，而根據該些承認事實上訴人對事件的回應只是“我喺街度執嘅”，而沒有包括上訴人在補錄和錄影會面時作出的進一步解釋。這亦解釋了為何原審法官沒有處理上訴人作出的進一步解釋。" } }, { "doc_id": 134, "seg_id": 71, "translation": { "en": "48.We cannot ignore the fact that the appellant was found in possession of the identity card almost 3 months from the time it was stolen. There was no evidence to support the appellant’s account that he picked up the identity card only 2 days before the arrest. It was reasonable that the trial judge did not give any weight to this account. It was also not incorrect for the trial judge to say that the appellant should not have possessed the identity card for as long as 2 months odd.", "zh-HK": "本庭不能忽視，上訴人管有身份證距離該身份證被盜的時段近三個月。上訴人指是在被拘捕前兩天才拾到身份證的說法沒有證據支持。原審法官不給予該說法任何比重亦是合理的。原審法官指上訴人不應管有身份證長達兩個多月的說法亦非不正確。" } }, { "doc_id": 134, "seg_id": 72, "translation": { "en": "49.It was not probable for Lau Chun Ho to abandon his identity card, and the appellant must have known that it was not probable for the holder of an identity card to abandon his identity card. Furthermore, the identity card was found from a drawer in the appellant’s room during a search by a police officer, and it was even put inside the appellant’s passbook. This fact did not conform to the appellant’s claim that he intended to hand over the identity card to the police station. If the appellant had really intended to hand it over to the police station, he should have immediately offered that explanation when it was found upon search.", "zh-HK": "劉振豪不可能放棄其身份證，而上訴人亦必會知悉身份證持有人不可能放棄身份證。再者，該身份證是由警員在上訴人房間的抽屜內搜出，而該身份證更是放在上訴人的銀行存摺內。該事實和上訴人聲稱打算將該身份證交到警署的說法不符。如上訴人確實打算將該身份證交到警署，他亦應會在身份證被搜出時，立刻作出該解釋。" } }, { "doc_id": 134, "seg_id": 73, "translation": { "en": "50.As the Court of Appeal said in HKSAR v Li Chang Li [2005] 1 HKLRD 864:", "zh-HK": "誠如上訴法庭在香港特別行政區訴李長利 [2005] 1 HKLRD 864案指出：" } }, { "doc_id": 134, "seg_id": 74, "translation": { "en": "“Generally speaking, a document of identity cannot possibly be a plaything or collector’s item.”", "zh-HK": "“一般情況，身份證明文件，不可能是玩物，亦不具收藏價值。”" } }, { "doc_id": 134, "seg_id": 75, "translation": { "en": "51.According to the laws of Hong Kong, the holder of an identity card has a duty to carry with him his identity card and produce it for inspection upon request by a police officer or an officer of the Immigration Department. He also has a duty to report the loss, destruction, damage or defacement of his identity card to the authority and apply for a replacement within 14 days. It is an unusual act to possess an identity card relating to another person.", "zh-HK": "根據香港法例，身份證持有人有責任隨身攜帶身份證，並在警務人員及入境事務處人員的要求下出示其身份證，以供查閱，亦有責任在身份證遺失、毀滅、損壞或污損後14天內向有關當局報告及申請補領。管有他人身份證是不尋常的行為。" } }, { "doc_id": 134, "seg_id": 76, "translation": { "en": "52.In our view, the appellant concealed the identity card relating to another person in the passbook in the drawer inside his room, which indicated that he intended to possess it for a long period of time and use it when necessary.", "zh-HK": "本庭認為上訴人將他人身份證收藏在自己房間的抽屜的銀行存摺內，顯示他是打算長期管有身份證及在有需要時，使用身份證。" } }, { "doc_id": 134, "seg_id": 77, "translation": { "en": "53.In the light of the background of this case, we are of the view that the prosecution’s evidence was sufficient to prove that the appellant was in possession of Lau Chun Ho’s identity card without lawful authority or reasonable excuse. The decision of the trial judge to find the appellant guilty of the charge of possessing an identity card relating to another person without lawful authority or reasonable excuse was correct and safe. Accordingly, we dismiss the appellant’s appeal against conviction.", "zh-HK": "以本案的背景而言，本庭認為控方的證據足以證明上訴人是沒有合法權限或合理辯解管有劉振豪的身份證。原審法官裁定上訴人無合法權限或合理辯解而管有他人身份證控罪罪名成立的決定是正確及穩妥的。因此，本庭駁回上訴人就定罪的上訴。" } }, { "doc_id": 134, "seg_id": 78, "translation": { "en": "Sentence", "zh-HK": "判刑" } }, { "doc_id": 134, "seg_id": 79, "translation": { "en": "54.The possession of an identity card relating to another person is surely not a minor offence because the purpose of the person possessing it is very likely to be illegal. Using it to commit a crime not only will enhance the difficulty of solving the case, but it may also cause inconvenience to its genuine holder.", "zh-HK": "管有他人身份證絕非輕微罪行，原因是管有他人身份證的人的目的極可能是非法的。利用他人身份證犯罪，不但會增加破案的困難度，亦可能對真正身份證持有人造成不便。" } }, { "doc_id": 134, "seg_id": 80, "translation": { "en": "55.If there is evidence to show that a defendant possesses an identity card relating to another person for the purpose of committing other offences, a sentence of immediate imprisonment should be imposed for the charge of possessing an identity card relating to another person.", "zh-HK": "如有證據證明被告人管有他人身份證，目的是干犯其他罪行，則管有他人身份證罪理應判處即時監禁刑罰。" } }, { "doc_id": 134, "seg_id": 81, "translation": { "en": "56.In this case, there was no evidence to show that the appellant possessed Lau Chun Ho’s identity card for the purpose of committing other particular offences, but the possession of an identity card relating to another person is itself a serious offence.", "zh-HK": "本案沒有證據證明上訴人管有劉振豪的身份證的目的是犯某些其他罪行，但管有他人身份證本身亦是嚴重的罪行。" } }, { "doc_id": 134, "seg_id": 82, "translation": { "en": "57.At the time of the offence, the appellant was under 18 years of age and had a clear record. He was not married but had a girlfriend who bore him a son. He also shared the responsibility of raising the son. However, according to the probation officer report and the community service order report obtained by us, the appellant’s background and living habits reveal that he is going astray. If not timely corrected, he is very likely to go down the criminal path where there is no turning back.", "zh-HK": "案發時，上訴人不足18歲，亦沒有任何刑事記錄。上訴人仍未結婚，但已有女朋友，並和她育有一名兒子。上訴人有負責撫養該名兒子。但根據本庭取得的感化官報告和社會服務令報告，上訴人的背景及生活習慣顯示他正步向歪途。如不合時糾正，上訴人極可能會走上犯罪的不歸路。" } }, { "doc_id": 134, "seg_id": 83, "translation": { "en": "58.In view of the background of the case and that of the appellant, the sentence of a rehabilitation centre order imposed by the trial judge was well-founded and appropriate, and we should not alter it. Accordingly, we dismiss the appellant’s appeal against sentence.", "zh-HK": "以案件的背景及申請人的背景而言，原審法官作出的更生中心命令的判刑是有基礎及恰當的，本庭不應更改。因此，本庭亦駁回上訴人就判刑的上訴。" } }, { "doc_id": 134, "seg_id": 84, "translation": { "en": "Jackson Poon, instructed by Messrs Keith Lam Lau & Chan, assigned by the Director of Legal Aid, for the appellant", "zh-HK": "上訴人：由法律援助署委派劉林陳律師行轉聘大律師潘展平代表。" } }, { "doc_id": 134, "seg_id": 85, "translation": { "en": "Vinci Lam, Senior Assistant Director of Public Prosecutions, and Noelle Chit, Public Prosecutor, of the Department of Justice (on 25 October 2017) and Vinci Lam, Senior Assistant Director of Public Prosecutions of the Department of Justice (on 6 November 2017), for the respondent", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員林穎茜及檢控官戚雅琳代表。（2017年10月25日）由律政司高級助理刑事檢控專員林穎茜代表。（2017年11月6日）" } }, { "doc_id": 135, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the Judgment of the Court)", "zh-HK": "高等法院上訴法庭副庭長楊振權頒發上訴法庭判案書：" } }, { "doc_id": 135, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 135, "seg_id": 3, "translation": { "en": "On 17 November 2016, the applicant (Tang Tik Hung) was convicted after trial for one count of trafficking in a dangerous drug and one count of possession of a dangerous drug, and was sentenced to a total of 24 years’ imprisonment.", "zh-HK": "2016年11月17日，申請人（鄧荻雄）經審訊後被裁定一項“販運毒品”和一項“管有毒品”罪罪名成‍立，並被判處入獄共24年。" } }, { "doc_id": 135, "seg_id": 4, "translation": { "en": "The applicant applied for leave to appeal against conviction on 28 November 2016. The application was fixed to be heard by a full bench of the Court of Appeal on 7 February 2018.", "zh-HK": "申請人不服定罪，並在2016年11月28日提出上‍訴許可申請，要求獲准就定罪上訴。該申請排期在2018年2‍月7日由上訴法庭合議庭審理。" } }, { "doc_id": 135, "seg_id": 5, "translation": { "en": "During the intervening period, the applicant was in the custody of the Correctional Services Department. On 30 November 2017, the Commissioner of Correctional Services informed the court that the applicant had passed away because of an illness in a hospital on 29 November 2017.", "zh-HK": "期間，申請人是由懲教署看管。2017年11月30‍日，懲教署署長知會法庭，申請人於2017年11月29‍日在醫‍院病逝。" } }, { "doc_id": 135, "seg_id": 6, "translation": { "en": "This court has to consider how to deal with the application for leave to appeal which has already been made by the applicant.", "zh-HK": "本庭要考慮如何處理申請人已提出的上訴許可申‍請。" } }, { "doc_id": 135, "seg_id": 7, "translation": { "en": "Sections 82 and 83G of the Criminal Procedure Ordinance, Cap 221 of the Laws of Hong Kong (the Ordinance) confer the right of appeal on a convicted person so that he may appeal to the Court of Appeal against his conviction or sentence. The Ordinance has not laid down how the appeal against conviction or sentence should be dealt with if the person convicted or sentenced dies after applying for leave to appeal.", "zh-HK": "香港法例第221章《刑事訴訟程序條例》（《條例》）第82及 83G 條賦予被定罪的人上訴的權利，令他可以針對其定罪或判刑向上訴法庭提出上訴。《條例》沒有列出如被定罪或判刑的人在提出上訴許可申請後死亡，其針對定罪或判刑的上訴應該如‍何處理。" } }, { "doc_id": 135, "seg_id": 8, "translation": { "en": "In dealing with provisions similar to sections 82 and 83G of the Ordinance, the English Court of Appeal has clearly stated that if a convicted person who has lodged an appeal against conviction or sentence dies, his application will automatically terminate and become abated (see Stuart-Smith LJ’s judgment in R v Maguire [1992] QB 937, 945D-F, and cases such as R v Kearley (No 2) [1994] 1 WLR 555 and R v Jefferies [1969] 1 QB 120).", "zh-HK": "英國的上訴法庭在處理和《條例》第82及83G‍條相同的條例時，表明如就定罪或判刑提出上訴的被定罪的人死亡，其上訴申請會自動終止及變得無效（abate）（見R v Maguire [1992] QB 937案判案書第945頁D–F行Stuart-Smith LJ法官的判詞、R v Kearley (No 2) [1994] 1 WLR 555及R v Jefferies [1969] 1 QB 120等案）。" } }, { "doc_id": 135, "seg_id": 9, "translation": { "en": "In R v Rowe [1955] 1 QB 573, the English Court of Criminal Appeal clearly stated that if a convicted and sentenced person who lodged an appeal died before the appeal hearing, his widow could not proceed with the appeal on the ground of clearing her husband’s name because she had no legal interest in the matter.", "zh-HK": "在R v Rowe [1955] 1 QB 573案，英國刑事上訴法‍庭更表明當一名被定罪及判刑的罪犯提出上訴，但在上訴聆訊前死亡，其未亡人亦無權以證明該名罪犯的清白為理由繼續進行上訴，原因是該名未亡人對事件不具任何法律認可的權‍益（Legal Interest）。" } }, { "doc_id": 135, "seg_id": 10, "translation": { "en": "The English Court of Appeal also found that even if a third party would be affected by the result of the appeal against conviction, that third party should pursue the matter by way of other procedures (see R v Maguire above). The above decisions were considered to be unfair under certain circumstances, and therefore in 1995, section 44A was added to the Criminal Appeal Act 1968 of the United Kingdom so that the Court of Appeal has the power to permit an appeal against conviction or sentence to commence or continue even after the appellant’s death.", "zh-HK": "英國的上訴法庭更認為即使有第三者會受被定罪的上訴結果影響，該第三者亦應透過其他程序追討（見上述R v Maguire案）。上述裁決被認為在某些情況下會導致不‍公，因此英國在1995年將第44A條加入Criminal Appeal Act 1968，令上訴法庭有權在上訴人死亡後批准展開或繼續針對他的定罪或判刑而提出的上訴。" } }, { "doc_id": 135, "seg_id": 11, "translation": { "en": "If the Court of Appeal follows the English precedent cases, the application for leave to appeal already lodged will automatically terminate and abate because of [the applicant’s] death, and this court will have no jurisdiction to hear this appeal, and must indicate that “the proceedings of this appeal have terminated upon the applicant’s death”. This is the decision that Miss Hermina Ng, Senior Public Prosecutor, has asked of this court.", "zh-HK": "假若上訴法庭依循英國案例，則申請人已提出的上‍訴許可申請會因為他的去世而自動終止及變得無效，而本‍庭亦沒有司法管轄權審理本上訴，並要表明“本上訴的法律程序已因申請人死亡而終止”。這是代表答辯人的吳穎軒高‍級檢控官要求本庭作出的裁決。" } }, { "doc_id": 135, "seg_id": 12, "translation": { "en": "The Hong Kong Court of Final Appeal (CFA) has given the final decision on how to deal with an appeal where a convicted person having obtained leave to appeal to the CFA had passed away before his appeal was heard. It was held that when a convicted person having his appeal dismissed by the Court of Appeal obtained leave to further appeal to the CFA, notwithstanding his subsequent death before the final appeal was heard, the CFA retained the discretion to hear his appeal and might order a living person to substitute for this deceased appellant (see HKSAR v Cheng Chee Tock Theodore (2015) 18 HKCFAR 292).", "zh-HK": "香港終審法院就一名已獲許可上訴至終審法院的被定罪，但在聆訊前死亡的人的上訴應如何處理作出終審判‍決。終審法院認為一名被定罪的人在其上訴被上訴法庭駁‍回後獲准再向終審法院上訴時，即使該名被定罪的人在終‍審法院聆聽其上訴前死亡，終審法院仍有酌情權處理其上‍訴，及可以下令某在世的人替代已故的上‍訴‍人（見HKSAR v Cheng Chee Tock Theodore (2015) 18 HKCFAR 292案）。" } }, { "doc_id": 135, "seg_id": 13, "translation": { "en": "As Miss Ng emphasised, the CFA exercised the power under section 31 of the Hong Kong Court of Final Appeal Ordinance, Cap 484 of Laws of Hong Kong, and submitted:", "zh-HK": "誠如吳高級檢控官強調，終審法院行使的權力是建‍基在香港法例第484章《香港終審法院條例》第31條，並認‍為：" } }, { "doc_id": 135, "seg_id": 14, "translation": { "en": "“(1)Once the section 31 right was exercised, the appeal was treated as pending. Section 31 was not expressed as a right of appeal limited to a convicted person since the right extended also to any party to the proceedings, including the Secretary for Justice. Where leave to appeal was granted by this Court, there was a strong public interest in such an appeal being heard, which went beyond that of an individual appellant (R v Jefferies [1969] 1 QB 120; R v Kearley (No 2) [1994] 2 AC 414; R v Smith [2004] 1 SCR 385 distinguished).", "zh-HK": "“(1)一旦第 31 條的權利被行使，上訴即視為待‍決。第 31 條並非表述為只限於被定罪的人行使的上訴權利，因為該權利亦延展至法律程‍序的任何一方，包括律政司司長。凡法庭給‍予許可上訴至本院，這表示存在著強烈公眾利益以支持審理有關上訴，而該項利益超越上‍訴人的個人利益（R v Jefferies [1969] 1 QB 120，R v Kearley (No 2) [1994] 2 AC 414，R v Smith [2004] 1 SCR 385予以區別）。" } }, { "doc_id": 135, "seg_id": 15, "translation": { "en": "(2)The proper construction of section 31 in the light of its context and purpose of the Ordinance is:", "zh-HK": "(2)在考慮《條例》的文意及其目的下，第 31 條的恰‍當詮釋如下：" } }, { "doc_id": 135, "seg_id": 16, "translation": { "en": "Having regard to the Court’s role as the final appellate court hearing appeals on important points of law, once a party to the proceedings had invoked the Court’s jurisdiction under section 31 by making an application for leave to appeal under section 33, the Court retained jurisdiction to hear a final criminal appeal notwithstanding the subsequent death of a party and had a discretion whether to do so or not. This conclusion was reached as a matter of construction of the relevant statutory provisions in the Ordinance and not by reference to the constitutional arrangements regarding access to the courts (Hin Lin Yee v HKSAR (2010) 13 HKCFAR142 considered).”", "zh-HK": "考慮到本院的角色，即作為審理包含重‍要法律論點的上訴案件的最終上訴法院，一旦法律程‍序的一方根據第33條提出上訴許可申請，從而訴諸本院在第‍31條下的司法管轄權，則儘管一方其後去世，但本院仍保留司法管轄權審理該項最終刑事上訴，並具有司法管轄權決‍定是否如此行。這項結論乃循詮‍釋《條例》下的相關法定條文而得出，而非透過參考關於向法院申訴的憲法安排而得出（Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142予以考慮）。”" } }, { "doc_id": 135, "seg_id": 17, "translation": { "en": "Although the decision of the CFA in Cheng Chee Tock Theodore above was based entirely on the construction of section 31 of the Hong Kong Court of Final Appeal Ordinance, the essence of the decision also emphasised that the appellant had already obtained leave to appeal to the CFA before his death, and once leave was granted, it meant there was a strong public interest in the appeal being heard. The CFA had reservations about the decision that an appeal would automatically terminate and abate if the appellant passed away before the appeal hearing by the Court of Appeal. The CFA also doubted the way that the Court of Appeal in England dealt with this issue.", "zh-HK": "雖然終審法院在上述Cheng Chee Tock Theodore案的裁決完全是建基在對《香港終審法院條例》第31條的詮‍釋；終審法院的判案重點亦強調該案的上訴人未去世前，已獲‍得上訴許可上訴至終審法院，而法庭給予上訴許可上訴至終審法院表示案件存在著強烈公眾利益支持審理有關上‍訴，但終審法院對上訴至上訴法庭的上訴人在聆訊前死‍亡，其上訴會自動終止及變得無效的裁決有保留。終審法‍院亦對英國上訴法庭處理該議題的方法存疑。" } }, { "doc_id": 135, "seg_id": 18, "translation": { "en": "The Court of Final Appeal made the following observation at paragraph 37 of its judgment:", "zh-HK": "終審法院在判案書第37段有以下觀察：" } }, { "doc_id": 135, "seg_id": 19, "translation": { "en": "“Mr Cooney submitted that it would be ‘inconsistent and odd’ if a right of appeal were to survive where an appellant died while appealing to this Court but to abate in the same situation in a pending appeal to the Court of Appeal. This, of course, assumes that an appeal to the Court of Appeal will abate on the appellant’s death, which may or may not be a correct assumption” (Emphasis added).", "zh-HK": "“Conney先生陳述時指如上訴人向本庭（終審法院）上訴的權利在其死亡後繼續存在，但在同一情況下，上訴人上訴到上訴法庭的上訴卻自動終止及變‍得無效，會是奇怪和不一致的。該說法是假設上‍訴法庭的上訴案件會因上訴人死亡而變得無效。但該說法不一定正確。”（非官方翻譯）" } }, { "doc_id": 135, "seg_id": 20, "translation": { "en": "It is also stated expressly at note 33 of the judgment:", "zh-HK": "終審法院在判案書第33項註釋更表明：" } }, { "doc_id": 135, "seg_id": 21, "translation": { "en": "“Any inconsistency or oddity would be removed if the relevant statutory provisions governing intermediate appeals were to be construed in a manner similar to section 31 of the Ordinance.”", "zh-HK": "“如將適用於中間步驟上訴（即上訴至上訴法庭的上‍訴）的有關法例以詮釋《香港終審法院條‍例》第‍31‍條的同一方法處理，則任何怪異或不一致都會去掉。”" } }, { "doc_id": 135, "seg_id": 22, "translation": { "en": "The CFA obviously did not agree with the decision of the English Court of Appeal in cases such as Kearley and Jefferies, and even opined that the way adopted by the Supreme Court of Canada in dealing with the same issue in R v Smith [2004] 1 SCR 385 was more appropriate.", "zh-HK": "終審法院明顯不同意英國上訴法庭在Kearley及Jefferies等案的裁決，更認為加拿大最高法院在R v Smith [2004] 1 SCR 385，就相同事件所採納的處理方法更為合適。" } }, { "doc_id": 135, "seg_id": 23, "translation": { "en": "In R v Smith above, the Supreme Court of Canada held that the court retained the discretion, in the interests of justice, to continue to deal with the case after the appellant’s death, but the exercise of such discretion should be rare. In their view:", "zh-HK": "在上述R v Smith案，加拿大最高法院裁定當一名上訴人死亡後，法庭亦有酌情權，為了公正理由，繼續處理案件，但該酌情權要盡可能少用。加拿大最高法院認為：" } }, { "doc_id": 135, "seg_id": 24, "translation": { "en": "“Once the appeal is properly constituted with a live appellant, the court must then consider whether to exercise its jurisdiction to hear the appeal despite it being rendered moot by the death of the accused, or to abate the appeal. The general test is whether there exist special circumstances that make it ‘in the interests of justice’ to proceed. That question may be approached by reference to the following non-exhaustive factors: the presence of a proper adversarial context; the strength of the grounds of the appeal; the existence of special circumstances that transcend the death of the individual appellant/respondent, such as a legal issue of general public importance, a systematic issue related to the administration of justice, or collateral consequences to the family of the deceased, to other interested persons, or to the public; the expenditure of limited judicial (or court) resources; and whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in free-standing legislative-type pronouncements more properly left to the legislature itself. Those cases in which it will be proper to exercise jurisdiction will be rare and exceptional.”", "zh-HK": "“當一名在世的上訴人已提出的上訴被視為恰當，法‍庭要考慮應否行使酌情權繼續聆聽上訴。雖然結‍果會因上訴人已死亡而變得無實質意義，或應因‍上訴人已死亡而終止上訴。" } }, { "doc_id": 135, "seg_id": 25, "translation": { "en": "Although the CFA pointed out that the question of how the intermediate appeals made to the Court of Appeal were to be dealt with was based on the construction of a different legislation, the inclination the CFA had expressed was obvious.", "zh-HK": "處理該議題時，應考慮下列非全面的因素：恰當的對立背景是否存在；上訴理由的強弱；是否有超越個別上訴人/答辯人死亡的特殊情況，例如涉及普‍遍公眾重要性的法律議題，和執行公義有關的系統問‍題，或是對死者的家庭、其他利益有關人士或公‍眾有附帶後果的；司‍法（法‍庭）有限資源的開支；及繼續上訴是否超越解決實質爭議的司法功能及將法‍庭牽涉入獨立的立法或宣告，而該些宣告理應由立法機構作出。要適當行使司法管轄權的案件是例‍外及罕見的。”（非官方翻譯）" } }, { "doc_id": 135, "seg_id": 26, "translation": { "en": "If the Court of Appeal rules that the appeal against conviction or sentence automatically terminates and abates because the applicant who has applied for leave to appeal dies before the hearing, and as a result the appeal cannot continue, the court in such a case would have no jurisdiction to deal with the appeal even if there is a strong public interest in the case. Such a decision would obviously go against the rationale behind the decision of the CFA in Cheng Chee Tock Theodore, and indirectly deprive the CFA of jurisdiction over the case because if it was correct for the Court of Appeal to find the appeal automatically terminated and abated on the appellant’s death before the hearing, the CFA could not exercise any jurisdiction over the case.", "zh-HK": "雖然終審法院指出上訴至上訴法庭的中間步驟的上訴應如何處理建基在不同法例的詮釋，但終審法院所表達的傾向性是顯而易見的。假若上訴法庭因為上訴許可申請人在聆訊前去‍世而裁定他針對定罪或判刑提出的上訴許可申請自動終止及失效，致令其上訴申請無法繼續，則即使案件存在著強烈公‍眾利益，法‍庭亦無權處理。這樣的裁決明顯違反了終審法‍院在Cheng Chee Tock Theodore案的判決理念，亦間接剝‍奪了終審法院就案件的管轄權，原因是如上訴法庭裁定上‍訴人在聆訊前去世，其上訴會自動終止及失效是正確的，則終審法院對案件亦無權行使任何管轄權。" } }, { "doc_id": 135, "seg_id": 27, "translation": { "en": "Although under exceptional circumstances and having been satisfied that a point of law of great importance or grave injustice is involved in a case, section 83P of the Ordinance may be invoked to resolve the problem, intervention by the executive authorities is required under section 83P before the case can be placed before the court. In our view, the jurisdiction of the court over cases should be unconditional and must not be based on the discretion of the executive authorities.", "zh-HK": "當然，在特殊情況及確保涉及重要法律議題或存在嚴重不公的案件，《條例》第83P條可被援用解決問題，但《條例》第 83P 條要透過行政干預，案件才能提交至法庭處‍理。本庭認為法庭對案件的司法管轄權應該是無條件的，更不應建基在某些行政酌情權上。" } }, { "doc_id": 135, "seg_id": 28, "translation": { "en": "In the aforesaid circumstances and in order to reflect the rationale behind the decision of the CFA in Cheng Chee Tock Theodore, this court considers that the relevant decisions made by the English Court of Appeal should not be followed. In our view, if a convicted and sentenced person dies after applying for leave to appeal against conviction or sentence, the Court of Appeal retains the discretion to consider all relevant factors before deciding if the application for leave should continue or automatically terminate and abate. We find that the factors set out at para 51 in the judgment of Cheng Chee Tock Theodore and in Smith most helpful in guiding the court to decide how to exercise the discretion.", "zh-HK": "在上述情況下及為了反映終審法院在Cheng Chee Tock Theodore案的判決理念，本庭認為不應跟隨英國上訴法庭的相關判決。本庭認為被定罪及判刑的人在針對定罪或判刑提出上訴許可申請後去世，上訴法庭仍有酌情權考慮各有關因素後才決定上訴許可申請應繼續或自動終止及變得無效。本庭亦認為Cheng Chee Tock Theodore案判案書第51段及Smith案列出的有關因素具指導性，能協助法庭決定如何行使酌情權。" } }, { "doc_id": 135, "seg_id": 29, "translation": { "en": "The facts of the present case are simple and straightforward. The applicant was convicted of one count of “trafficking in a dangerous drug” and one count of “possession of a dangerous drug” and sentenced to 24 years’ imprisonment. Before his death, he had made an application for leave to appeal against conviction. After his death, no family member has indicated that the application for leave to appeal already made by the applicant would continue. The incident carries no importance to the public. No other person would be affected. We have also considered the merits of the case, and do not think that we should exercise the discretion to continue to deal with the applicant’s application for leave to appeal after his death. Therefore, this court declares that the application for leave to appeal made by the applicant and the related legal proceedings terminate and abate on the applicant’s death.", "zh-HK": "本案的情況簡單直接，申請人被裁定一項“販毒罪”和一項“管有毒品”罪罪名成立，並被判處入獄24‍年。他去世前提出上訴許可申請，要求法庭批准他就定‍罪上訴。他死後，沒有家人表示會繼續申請人已提出的上訴許‍可申請。事件不具任何公眾重要性，亦不會影響任何其他人‍士。本庭亦有考慮過案件的是非曲直，本庭認為不應行使酌情權，在申請人去世後繼續處理他已提出的上訴許可申‍請。因此，本庭正式宣告申請人已提出的上訴許可申請及相關的法律程序因申請人去世而終止及無效。" } }, { "doc_id": 135, "seg_id": 30, "translation": { "en": "The Applicant (deceased): unrepresented", "zh-HK": "答辯人：由律政司高級檢控官吳穎軒代表。" } }, { "doc_id": 135, "seg_id": 31, "translation": { "en": "Miss Hermina Ng, SPP of Department of Justice, for the respondent", "zh-HK": "申請人（已去世）：沒有律師代表。" } }, { "doc_id": 136, "seg_id": 1, "translation": { "en": "Hon Yeung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案書：" } }, { "doc_id": 136, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 136, "seg_id": 3, "translation": { "en": "This case involved a number of telephone deceptions and there were a total of 4 victims. What happened to the victims in these deceptions was similar. Each of them received a telephone call and heard a person crying for help on the phone and that person claimed to be his or her son. Then another person said that the son of that victim owed him a large amount of money and demanded that the victim pay a sum of money (the sum paid by each victim was not the same) to secure the release of his or her son.", "zh-HK": "本案涉及多宗電話詐騙案件，共有四名受害人。各受害人受騙的過程相同，他們收到電話，聽到有聲稱是他們兒子的人之求救聲，其後有人指受害人的兒子欠下巨款，要受害人支付不同款額以確保他們的兒子獲釋。" } }, { "doc_id": 136, "seg_id": 4, "translation": { "en": "For these incidents, the two applicants faced a series of charges. Charges 1, 3, 5 and 7, which were conspiracies to defraud, and charges 2, 4, 6 and 8, which were conspiracies to commit “money-laundering”, were against the 1st applicant Yang Chia-cheng; while the 2nd applicant Pan Jung-wen was only charged with charge 7, conspiracy to defraud and charge 8, conspiracy to commit “money-laundering”. The conspiracies to commit “money-laundering” were alternative charges to the conspiracies to defraud.", "zh-HK": "事件導致兩名申請人面對多項控罪。第一申請人楊家誠被控第1，3，5，7項串謀詐騙罪及第2，4，6，8項串謀“洗黑錢”罪。第二申請人潘榮文則只被控第7項串謀詐騙罪及第8項串謀“洗黑錢”罪。串謀“洗黑錢”罪是串謀詐騙罪的交替控罪。" } }, { "doc_id": 136, "seg_id": 5, "translation": { "en": "The two applicants pleaded not guilty and were tried before Deputy District Judge Johnny Chan. On 30 September 2009, the learned judge convicted Yang of the conspiracy to defraud charges 1, 3, 5 and 7; and charge 7, the conspiracy to defraud against Pan was also established. It was not necessary for the learned judge to give his verdict as to the alternative conspiracy to commit “money-laundering” charges.", "zh-HK": "兩名申請人否認控罪並在區域法院法官陳仲衡席前受審。2009年9月30日，陳法官裁定楊家誠第1，3，5，7項串謀詐騙罪罪名成立，而潘榮文第7項串謀詐騙罪罪名亦成立。陳法官無需就交替之串謀“洗黑錢”罪作出裁決。" } }, { "doc_id": 136, "seg_id": 6, "translation": { "en": "The two applicants were sentenced to 57 months for each charge, and it was ordered that 8 months from each of charges 3, 5, 7, which were against Yang, were to run consecutively to the 57 months for charge 1.", "zh-HK": "陳法官判兩名申請人每項控罪入獄57個月。陳法官同時下令針對楊家誠的第3，5，7項控罪，每項控罪的判刑中有8個月要和第1項控罪的57個月判刑分期執行。" } }, { "doc_id": 136, "seg_id": 7, "translation": { "en": "The total term of imprisonment for Yang was 81 months, and that for Pan was 57 months.", "zh-HK": "楊家誠的總刑期為81個月，而潘榮文的刑期則為57個月。" } }, { "doc_id": 136, "seg_id": 8, "translation": { "en": "Yang applied for leave to appeal against both conviction and sentence, while Pan applied for leave to appeal against sentence only. After hearing, we dismissed Yang’s application concerning his conviction, but reserved our judgment in respect of their applications regarding their sentences. The reasons for our dismissing Yang’s application concerning his conviction and our judgment about their applications regarding their sentences are set out below.", "zh-HK": "楊家誠不服定罪及判刑的決定，現提出上訴許可申請，要求獲准就定罪及／或判刑上訴。潘榮文則只是不服判刑，現要求獲得許可，申請減刑。經聆訊後，本庭駁回楊家誠就定罪的申請，但押後宣判兩名申請人就判刑的申請。以下是本庭駁回楊家誠就定罪申請之理由，及兩名申請人就判刑申請的裁決。" } }, { "doc_id": 136, "seg_id": 9, "translation": { "en": "Prosecution case", "zh-HK": "控方的案情" } }, { "doc_id": 136, "seg_id": 10, "translation": { "en": "There was no dispute over the prosecution case; indeed, it was presented to the court by way of admitted facts.", "zh-HK": "控方的案情，並沒爭議，更以同意事實向法庭呈示。" } }, { "doc_id": 136, "seg_id": 11, "translation": { "en": "The victim of the 1st charge conspiracy to defraud was Madam Wong, who was 50 years of age. On 25 March 2009, Madam Wong received a telephone call. A man, who claimed to be her son, cried for help on the phone. Immediately after that was the voice of another man, who told her that her son owed them $200,000 and he demanded money from her. She said she had $40,000 only. Then the man pressed her to go to the bank at once to withdraw cash. He also obtained the mobile phone number of Madam Wong. He telephoned to Madam Wong and told her that she had to maintain telephone communication with him at all times.", "zh-HK": "第一項串謀詐騙罪的受害人是50歲的黃女士。2009年3月25日，黃女士接到一個來電，一名聲稱是她的兒子的男子在電話求救。另一名男子隨即取過電話並聲稱黃女士的兒子欠他們20萬元，故向黃女士索取金錢。當黃女士表示只有4萬元時，該男子催促黃女士立刻往銀行提取現金。他取得黃女士的流動電話號碼後，打電話給黃女士，並著她一路保持通話。" } }, { "doc_id": 136, "seg_id": 12, "translation": { "en": "Madam Wong managed to raise $40,000 and went to the junction of Canton Road and Saigon Street as instructed. At that time, Yang went up to her and she, acting on instructions coming from the telephone, handed the $40,000 to Yang. Subsequently, Madam Wong realized that she was deceived. Her son had never called her for help.", "zh-HK": "黃女士最終籌足4萬元並按指示前往尖沙咀廣東道和西貢街交界。當時楊家誠走近黃女士，而黃女士亦依照從電話得到之指示，將4萬元交了給楊家誠。事後黃女士發現被騙，其兒子根本沒有向她求救。" } }, { "doc_id": 136, "seg_id": 13, "translation": { "en": "The victim of the 3rd charge conspiracy to defraud was Madam Ko, who was 67 years of age. On 30 March 2009, Madam Ko received a telephone call. A man, who claimed to be her son, cried for help. Thereupon, another man took over the phone and told her that her son was detained by him, and he demanded a ransom of $200,000. Madam Ko said that she had only $20,000. The man agreed. He obtained Madam Ko’s telephone number, called her and told her not to ring off. Then Madam Ko went to the Mira Hotel in Tsimshatsui as instructed and handed $20,000 to Yang. Later, the man who called Madam Ko earlier called again and demanded $50,000 more. At that time, Madam Ko already knew that his son had never been detained and that she was deceived.", "zh-HK": "第三項串謀詐騙罪的受害人是67歲的高女士。2009年3月30日，高女士接到來電，有一名自稱是其兒子的男子求救。另一男子隨即取去電話，指高女士的兒子遭他扣留，並要高女士支付20萬元之贖金。高女士表示自己只有2萬元。該男子同意，並取得高女士的電話號碼後和高女士通話，更不許她掛斷電話。隨後，高女士按照指示前往尖沙咀美麗華酒店，並將2萬元交了給楊家誠。其後較早前打電話給高女士的男子再來電，要多5萬元。當時，高女士已知悉她的兒子從未遭人扣留，而她只是受騙。" } }, { "doc_id": 136, "seg_id": 14, "translation": { "en": "The victim of the 5th charge was Mr. Lau, who was 58 years old. On 31 March 2009, Mr. Lau received a telephone call. A man, who claimed to be his son, cried out loudly for help. Another man then took over the phone. He said that Mr. Lau’s son was a guarantor of some debts and that he was being detained. The man told Mr. Lau to pay $80,000, otherwise his son’s hand would be chopped off. After bargaining, the man agreed to accept $60,000. He told Mr. Lau to maintain telephone communication with him at all times through the mobile phone. Mr. Lau went to the fire station in Tsimshatsui as instructed, and handed $60,000 to Yang outside the fire station. Later, Mr. Lam found out that he was deceived.", "zh-HK": "第五項控罪的受害人是58歲的劉先生。2009年3月31日，劉先生接到來電，一名自稱其兒子的男子高聲求救。另一名男子取過電話，指劉先生的兒子是欠款擔保人，遭人扣留，並要劉先生支付8萬元，否則會斬斷其兒子的手。經討價後，該名男子同意收取6萬元，並要劉先生透過流動電話，和他一路保持通話。劉先生按指示前往尖沙咀消防局外，將6萬元交了給楊家誠。事後劉先生發現遭騙。" } }, { "doc_id": 136, "seg_id": 15, "translation": { "en": "The victims of the 7th charge conspiracy to defraud were Mr. Chow and his wife. At the material time, a friend of theirs Madam Xu came to visit them from the Mainland and stayed at their flat in Mongkok.", "zh-HK": "第七項串謀詐騙罪的受害人是周先生和其太太。事發時，周先生夫婦的朋友許女士從國內探訪他們，並住在他們的旺角居所。" } }, { "doc_id": 136, "seg_id": 16, "translation": { "en": "On 3 April 2009, Madam Xu received a phone call and heard a man cried for help. She asked him whether he was the younger son “Lo Lo” of Mr. and Mrs. Chow. The man who cried for help answered in the affirmative. Immediately after that, another man spoke on the phone and said that “Lo Lo” owed him $200,000 and so was detained by him. Madam Xu immediately told Mr. Chow about this. Mr. and Mrs. Chow returned home and talked with the man who demanded payment. The man demanded that Mr. Chow pay $200,000 to exchange for the release of their son. After bargaining, it was agreed that the ransom would be reduced to $50,000. The man instructed Mr. Chow to withdraw cash from the bank and told him to maintain telephone communication with him. When all these were going on, Mr. Chow somehow learnt that both of his two sons were safe and sound and then he made a report to the police.", "zh-HK": "2009年4月3日，許女士接到電話，聽到一名男子求救。許女士問他是否周先生夫婦的幼子“佬佬”時，求救者答是。隨即有人取過電話，聲稱“佬佬”欠下他20萬元，故遭他扣留。許女士立刻通知周先生。周先生夫婦返家後和索取款項的人通話。該人要周先生支付20萬元，以贖回兒子。雙方討價後同意贖金減為5萬元。該男子吩咐周先生前往銀行提款，並著他保持通話。期間，周先生知悉兩名兒子都安全無恙後知會警方。" } }, { "doc_id": 136, "seg_id": 17, "translation": { "en": "Later, Mr. Chow, acting on instructions he received, first went to a certain place on Ferry Street near a signboard with the characters “Lap Sing [transliteration of 立勝] Removal Company”; but he went there in the company of police officers. After a while, he was further instructed to dump an envelope with banknotes inside into a rubbish bin which was in the vicinity. He did as instructed. At that moment, Yang was close by. He picked up the envelope at once, walked away hurriedly and was arrested. The police officers searched Yang and found on him a telephone, inside which there was an Easy Own（神州行）SIM card, numbered 13672654313. All the money was recovered.", "zh-HK": "其後，周先生在警員陪同下，按指示先前往渡船街近“立勝搬屋”的招牌處，後再按指示將有鈔票的信封扔入附近的一個垃圾筒。當時楊家誠在附近並隨即拾起信封後，急步離開，但結果遭拘捕。警員在楊家誠身上搜獲電話，內有一張“神州行”電話咭，號碼為13672654313及起回有關的款項。" } }, { "doc_id": 136, "seg_id": 18, "translation": { "en": "At the same time, the police also arrested Pan and found two mobile phones on his person, with one SIM card in each of them. One of the cards showed that the number of the last outgoing call made was the number of the phone found on Yang.", "zh-HK": "警員亦同時拘捕潘榮文，並在其身上搜出2部手提電話，內各有一張電話咭，其中一張顯示最後打出的號碼是楊家誠身上搜出的電話。" } }, { "doc_id": 136, "seg_id": 19, "translation": { "en": "Yang had been interviewed by police officers on a number of occasions on a voluntary basis. He admitted that he and Pan came here together to collect money. He stated that “Ah Hung” [transliteration of 阿鴻] told him to collect gambling money for placing bets on Mark Six and soccer matches. The clients worried that their gambling activities might be discovered, so they did not pay by bank transfer, but asked them to collect the money at designated places instead.", "zh-HK": "楊家誠曾多次自願接受警方會面。他同意和潘榮文一起來拿錢，並表示“阿鴻”對他說要收取下注六合彩和足球的賭金，但因客戶害怕賭博行為遭人知悉，故不用銀行匯款，而要他們在指定地點拿錢。" } }, { "doc_id": 136, "seg_id": 20, "translation": { "en": "Yang said that he came to know Pan through the introduction made by “Ah Hung” in Zhuhai. The purpose of their coming to Hong Kong was to collect money and bring it to Zhuhai. He said Pan telephoned him and told him to go to the rubbish bin to pick up a paper bag, and as a result he was arrested.", "zh-HK": "楊家誠表示潘榮文是“阿鴻”在珠海介紹給他認識的。兩人來港目的是拿錢回珠海。他指是潘榮文打電話給他要他前往垃圾桶拾紙皮袋，但結果遭拘捕。" } }, { "doc_id": 136, "seg_id": 21, "translation": { "en": "Yang admitted that before he was arrested he had on 3 occasions, acting on the instructions of “Ah Man” [transliteration of 阿文]， received money from some victims and then handed the money to “Ah Man”.", "zh-HK": "楊家誠亦承認遭拘捕前曾三次按“阿文”指示，從受害人取得金錢，並將錢交給“阿文”。" } }, { "doc_id": 136, "seg_id": 22, "translation": { "en": "According to Yang, the telephone of the number 13672654313 was provided by “Ah Hung”. When he and “Ah Man” went to collect money, he would hold this phone in his hand for [using it to] communicate with “Ah Man”.", "zh-HK": "楊家誠指13672654313號電話是“阿鴻”提供的，而他和“阿文”去收錢時會手持該部電話和“阿文”保持聯絡。" } }, { "doc_id": 136, "seg_id": 23, "translation": { "en": "Yang also told the police officers that he felt that the money was not gambling money, because he had come to Hong Kong to collect money for “Ah Hung” twice before and “Ah Hung” had told him that the monies were proceeds from deceptions. It was not the case that what he needed to do was only to go to designated places in Hong Kong to collect money.", "zh-HK": "楊家誠亦有向警員表示覺得錢並非賭金，原因是曾兩次幫“阿鴻”來港拿錢，而“阿鴻”有向他說過錢是騙來的，而非他只需到香港指定地點拿錢就得。" } }, { "doc_id": 136, "seg_id": 24, "translation": { "en": "Yang further stated that the accomplices of “Ah Hung” included “Shek Tau” [transliteration of 石頭] and “Ah Lung” [transliteration of 阿龍]。 Both of them were Taiwanese. Each time, “Ah Hung” directed him and “Ah Man” through a mobile telephone to go by boat to Hong Kong to collect money. After they collected the money, they returned to Zhuhai and handed it to “Ah Hung”.", "zh-HK": "楊家誠更表示“阿鴻”的同黨包括“石頭”及“阿龍”。他們都是台灣人；而“阿鴻”每次都是用手機指揮他和“阿文”乘船來港拿錢；而拿到錢後他們會返回珠海及將錢交給“阿鴻”。" } }, { "doc_id": 136, "seg_id": 25, "translation": { "en": "Yang said that “Ah Hung” would give him reward, but there was no fixed amount. How much it was was decided by “Ah Hung”.", "zh-HK": "楊家誠表示“阿鴻”會給他報酬，但數額不定，要由“阿鴻”決定。" } }, { "doc_id": 136, "seg_id": 26, "translation": { "en": "Grounds of defence", "zh-HK": "答辯理由" } }, { "doc_id": 136, "seg_id": 27, "translation": { "en": "Yang admitted that he had on 3 occasions obtained money from the victims, and on the occasion on which he was arrested, he had the intention to do that; but he argued that he did not know that the monies were proceeds from deceptions.", "zh-HK": "楊家誠同意三次由受害人身上取得金錢，而被捕那一次他亦已在打算這樣做，但他指不知悉金錢是詐騙所得。" } }, { "doc_id": 136, "seg_id": 28, "translation": { "en": "The evidence he gave was that he went to Zhuhai to work on the strength of an Entry Permit for Taiwan Residents, and came to know “Ah Hung”. He said that he trusted “Ah Hung” and had come to Hong Kong 4 times on behalf of him to collect gambling money for placing bets on Mark Six and soccer matches.", "zh-HK": "作供自辯時，他表示自己持台灣居民通行證前往珠海工作，並認識了“阿鴻”。他指自己相信“阿鴻”，替他四次來港收取六合彩及足球賭金。" } }, { "doc_id": 136, "seg_id": 29, "translation": { "en": "Yang explained that after he collected money the second time, he felt suspicious because during both these two times the people who handed him the money were elderly ladies. He asked “Ah Hung” about that and indicated to him that if the monies were proceeds from deceptions, he would not take part any more in the arrangement of coming to Hong Kong to collect money. “Ah Hung” told him that the monies were not proceeds from deceptions. Having considered how the monies were collected, he believed that they were not proceeds from deceptions, so he agreed to continue with his cooperation with “Ah Hung”.", "zh-HK": "楊家誠表示第二次取得金錢後，因兩次交款的人都是上了年紀的女士，令他起疑，故曾向“阿鴻”查問並向“阿鴻”表示，如金錢是騙回來的，他不會參予來港拿錢。但“阿鴻”向他表示錢不是騙來的，而考慮過取錢的方法後，他相信錢並非是騙來的，故同意繼續和“阿鴻”合作。" } }, { "doc_id": 136, "seg_id": 30, "translation": { "en": "Yang said that he allowed his intelligence be blinded by his desire to earn money, so he did not examine closely whether the monies were proceeds from deceptions. He stated that he only 80% believed “Ah Hung”’s words, and that each time after he collected the monies, he would receive 1,000 dollars/yuan to 2,000 dollars/yuan as his reward.", "zh-HK": "楊家誠表示自己財迷心竅，故沒有深入探討錢是否詐騙得來，而他亦只是八成相信“阿鴻”的說話。他表示每次取錢會得到1,000至2,000元的報酬。" } }, { "doc_id": 136, "seg_id": 31, "translation": { "en": "Yang stressed that if he had known that the monies were proceeds from deceptions, he would not have agreed to go to collect the monies for such meagre rewards. He said that the “Ah Man” he mentioned during the interviews with the police officers was not Pan Jung Wen, but was another person.", "zh-HK": "楊家誠強調，如自己知悉錢是詐騙所得，他不會因這麼少的報酬而去拿錢，他表示在和警員會面時說及的“阿文”並非潘榮文而是另一人。" } }, { "doc_id": 136, "seg_id": 32, "translation": { "en": "Yang had told the police officers that “Ah Hung” had told him that the monies were proceeds from deceptions. His explanation of his doing so was that he just wanted to tell the truth to the police. However, in fact he 80% believed “Ah Hung”’s statement that the monies were not proceeds from deceptions.", "zh-HK": "楊家誠指自己向警員表示“阿鴻”曾對他說錢是騙來的，是要將實情向警方說出。但事實上，他有八成相信“阿鴻”的說法指錢不是騙來的。" } }, { "doc_id": 136, "seg_id": 33, "translation": { "en": "Yang said that he had asked “Ah Hung” why he did not come to Hong Kong himself to collect the monies, but “Ah Hung” just spoke equivocally and did not answer the question directly.", "zh-HK": "楊家誠表示曾問過“阿鴻”為甚麼不自己來港拿錢，但“阿鴻”只是支吾以對，沒有正面回答。" } }, { "doc_id": 136, "seg_id": 34, "translation": { "en": "Yang explained that “Ah Hung” had once said that the monies were proceeds from deceptions, but later he withdrew this remark and said that the monies were not proceeds from any deception. Yang believed what he said because the monies were not collected in any tricky way. Yang admitted that he let his intelligence be blinded by his desire to earn money and did not examine closely to confirm whether the monies were proceeds from deceptions. He admitted that when he went to collect money on the fourth occasion, [he] picked up the money from a litter bin. He thus realized that the money was come by as a result of deception, because to put the money in the litter bin was a kind of trick. However, he denied that during all the 4 times of his coming to Hong Kong to collect money he knew that the monies were proceeds from deceptions.", "zh-HK": "楊家誠強調“阿鴻”曾說過錢是騙來的，但後來改口說錢不是騙來的，而他亦相信錢不是騙來，原因是取款方法並非以掉包方式。他同時承認自己財迷心竅，沒有深入確認錢是否騙人得來的。楊家誠同意第四次收錢時是由垃圾筒取得，故他清楚錢是騙人所得，因為將錢扔在垃圾筒內，就是掉包。但他否認四次來港收錢，他都知道錢是騙來的。" } }, { "doc_id": 136, "seg_id": 35, "translation": { "en": "Findings made by the trial judge", "zh-HK": "原審法官的裁定" } }, { "doc_id": 136, "seg_id": 36, "translation": { "en": "The learned judge had considered and analysed what Yang said when he was interviewed by the police officers and what he said in evidence. The learned judge found that his explanation was unbelievable, unreliable and untrue.", "zh-HK": "原審法官有考慮和分析楊家誠和警員會面時的說話及他作供時的證言。原審法官指出他的解釋不可信亦不可靠，更非事實。" } }, { "doc_id": 136, "seg_id": 37, "translation": { "en": "The learned judge carefully set out the version of facts given by Yang and explained why his explanation was not convincing.", "zh-HK": "原審法官詳細列出楊家誠的說法，並指出為何他的解釋不具說服力。" } }, { "doc_id": 136, "seg_id": 38, "translation": { "en": "The learned judge pointed out that when Yang was asked about what role he played in these deceptions, he answered that “Ah Hung” was the mastermind in these deceptions and that he and “Ah Man” came to Hong Kong to collect money on his instructions. The learned judge stressed that in view of Madam Ko’s age, Yang could not possibly believe that the money received from her was gambling money for Mark Six or soccer matches, and that the way in which he collected the money was inconsistent with his story that the money was gambling money.", "zh-HK": "原審法官指出楊家誠被問及他在行騙案擔任的角色時，表示“阿鴻”在行騙案中擔任指揮，而他和“阿文”則按指揮來港收錢。原審法官強調，以高女士的年齡，楊家誠不可能認為她交的是六合彩或足球賭金，而他收錢的方式亦和錢是賭錢的說法不符。" } }, { "doc_id": 136, "seg_id": 39, "translation": { "en": "The learned judge found that Yang knew what was really going on behind these money-collecting arrangements and was also aware of how the deceptions operated. The learned judge found that the applicant was a voluntary participant in the deceptions, not someone who, ignorant of the truth of the matter, was made use of. He therefore convicted Yang of all the 4 charges of conspiracy to defraud.", "zh-HK": "原審法官裁定楊家誠知道收錢背後的底蘊，亦知道案中騙局的運作。原審法官亦裁定申請人有自願參予騙局，而非遭他人利用的不知情者。因此原審法官裁定楊家誠四項串謀詐騙罪罪名全部成立。" } }, { "doc_id": 136, "seg_id": 40, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 136, "seg_id": 41, "translation": { "en": "Yang complained that the guilty verdicts were not supported by evidence and were the result of pure speculation. He explained that the statement “[I] knew that the monies were proceeds from deceptions” which he uttered to the police officers was an honest statement, but that when he gave evidence, he had explained in detail how come he would utter this statement and everything that happened in relation to this statement.", "zh-HK": "楊家誠指原審法官的定罪決定沒有證據支持，全是憑空猜想導致。他表示向警員表示“知道金錢是詐騙所得”時，是誠實告知警察，但在自辯時，有對該說法的前因後果加以詳說。" } }, { "doc_id": 136, "seg_id": 42, "translation": { "en": "Yang emphatically asked this question: “Would anyone who broke the law be so stupid as to confess his crime on his own initiative?” He said that if he had really known the truth, he would have pleaded guilty at the outset in order to obtain the one third discount on his sentence.", "zh-HK": "楊家誠強調，“犯罪者會笨到自己招供嗎”，而如他真的知情，他亦早已認罪以取得三分一之刑期扣減。" } }, { "doc_id": 136, "seg_id": 43, "translation": { "en": "Yang submitted that no victim had ever asked him any question, therefore the argument —— he, being a character on the front line charged with the task of collecting money, necessarily knew what was going on, otherwise if any victim asked him anything about what happened, he would not know how to answer —— was not convincing.", "zh-HK": "楊家誠亦強調，受害人從沒有向他有任何提問，因此指他作為收錢的前線角色，一定知道過程，否則受害人查問時，他不知如何回答的說法不具說服力。" } }, { "doc_id": 136, "seg_id": 44, "translation": { "en": "Discussion about conviction", "zh-HK": "討論定罪" } }, { "doc_id": 136, "seg_id": 45, "translation": { "en": "The undisputed evidence showed that the deceptions practised on 3 out of the 4 victims were successful. Judging from the modus operandi, it is certain that some people conspired together to take advantage of the victims’ concern for the safety of their sons to deceive them into giving them as much money as possible.", "zh-HK": "無爭議的證據顯示，四名受害人中有三名遭人成功詐騙，以犯案的手法及過程，必然是有人串謀，利用受害人擔心兒子安危而盡量詐騙他們金錢。" } }, { "doc_id": 136, "seg_id": 46, "translation": { "en": "On each occasion, Yang was responsible for collecting money from the victim concerned. The issue is that when he was playing his role as the money collector, did he know that the monies he was to collect were proceeds from the deceptions. If he knew that the monies he was to collect were proceeds from the deceptions, then he certainly was a participant in the conspiracies.", "zh-HK": "楊家誠每次都負責向受害人拿取金錢。案件的爭議是扮演收錢的角色時，他是否知悉收取的錢是行騙所得。如他知悉收取的錢是行騙所得，他必然是串謀詐騙的一份子。" } }, { "doc_id": 136, "seg_id": 47, "translation": { "en": "Yang claimed that he was misled into believing that the monies he was to collect were for placing bets on Mark Six and soccer matches.", "zh-HK": "楊家誠指遭人誤導，認為收取的錢是六合彩及足球的賭金。" } }, { "doc_id": 136, "seg_id": 48, "translation": { "en": "Taking into account the identities of the victims and the way in which they handed over the money, we find that the case advanced by Yang is devoid of any force of persuasion. By such a story, he can only delude himself. Furthermore, when he was being interviewed, he clearly said he knew that the monies were proceeds from deceptions.", "zh-HK": "以受害人的身份及交錢的方法，楊家誠的說法根本不具任何說服力，更是自欺欺人。遭查問時，他更明確表示知道錢是詐騙所得。" } }, { "doc_id": 136, "seg_id": 49, "translation": { "en": "Even if Yang did not make this confession, the only reasonable inference that can be drawn from the facts and the undisputed evidence of this case is that he was aware that the monies were proceeds from the deceptions. This inference is of course strengthened by his confession.", "zh-HK": "即使楊家誠沒有作出上述招認，以案件的背景及無爭議的證據而言，唯一的合理推論是他知悉金錢是行騙所得。當然他的招認更強化了上述推論。" } }, { "doc_id": 136, "seg_id": 50, "translation": { "en": "We do not see there is anything unsafe in convicting Yang of the conspiracy to defraud charges. We dismiss his application for leave to appeal against conviction.", "zh-HK": "對楊家誠被裁定串謀詐騙罪罪名成立，本庭不覺有任何不穩妥之處，本庭駁回他就定罪提出的上訴許可申請。" } }, { "doc_id": 136, "seg_id": 51, "translation": { "en": "Sentencing", "zh-HK": "判刑" } }, { "doc_id": 136, "seg_id": 52, "translation": { "en": "Both applicants are residents of Taiwan and have no criminal record in Hong Kong. However, both have a history of drug addiction.", "zh-HK": "兩名申請人都是台灣居民，在香港沒有犯罪記錄，但他們都曾有吸毒習慣。" } }, { "doc_id": 136, "seg_id": 53, "translation": { "en": "When sentencing the applicants, the learned judge emphasized that the purpose of the swindlers was to swindle the victims out of their life savings by deceiving them into believing that they had to use their money in exchange for the safety of their sons. They committed the crimes by playing a mean trick on the victims. Such conduct was tantamount to blackmail and intense fear was stricken into the hearts of the victims.", "zh-HK": "原審法官判刑時強調，騙徒是要去騙取受害人的畢生血汗積蓄，以換取兒子的安全，而犯案手法卑劣，形同勒索，令受害人感到極度驚慌。" } }, { "doc_id": 136, "seg_id": 54, "translation": { "en": "The learned judge considered that the crimes of the two applicants were more serious than street deceptions because the victims suffered greater agonies in the course of their crimes as a result of the threats they experienced.", "zh-HK": "原審法官認為兩名申請人的罪行較街頭騙案更為嚴重，原因是受害人在犯案過程中遭威嚇所受的痛苦更大。" } }, { "doc_id": 136, "seg_id": 55, "translation": { "en": "The learned judge used 40 months as the starting point for each individual charge. The two applicants accepted the evidence of the victims, so that the victims did not need to go to court to give evidence. For this, the starting point was reduced to 38 months.", "zh-HK": "原審法官裁定就單項控罪量刑基準應為40個月，但因為兩名申請人同意受害人的證言，無需他們出庭作供，故原審法官將量刑基準下調至38個月。" } }, { "doc_id": 136, "seg_id": 56, "translation": { "en": "The learned judge granted the application made by the prosecution and, by reason of the prevalence of the crimes, enhanced the sentences by 50% pursuant to the Organized and Serious Crimes Ordinance, arriving at the term of 57 months for each charge.", "zh-HK": "原審法官應控方的申請，以罪行普遍而根據《有組織及嚴重罪行條例》加刑50%，而得出每項控罪57個月的量刑基準。" } }, { "doc_id": 136, "seg_id": 57, "translation": { "en": "As far as Yang is concerned, the learned judge pointed out that different victims were involved in charges 1, 3, 5 and 7 and the crimes occurred on different days. Having considered the totality principle, he ordered that for each of the charges after the first charge, Yang was to be imprisoned for 8 months more.", "zh-HK": "就楊家誠而言，原審法官指出第1，3，5，7項控罪涉及不同受害人，亦是在不同日期發生。考慮到整體判刑，原審法官下令每多一項控罪，楊家誠要加服8個月的刑期。" } }, { "doc_id": 136, "seg_id": 58, "translation": { "en": "Accordingly, Yang was sentenced to 81 months’ imprisonment in total, and Pan was 57 months.", "zh-HK": "因此原審法官判楊家誠共入獄81個月，而潘榮文則要入獄57個月。" } }, { "doc_id": 136, "seg_id": 59, "translation": { "en": "Grounds of appeal against sentence", "zh-HK": "減刑理由" } }, { "doc_id": 136, "seg_id": 60, "translation": { "en": "Yang asserted that he had, on his own initiative, provided information to the police to enable them to arrest other people who perpetrated these crimes.", "zh-HK": "楊家誠強調曾向警方主動提出線索，令他們能緝獲其他犯案人士。" } }, { "doc_id": 136, "seg_id": 61, "translation": { "en": "Yang argued that any conspiracy necessarily meant that there was premeditated commission of offences and that in many commercial fraud cases large amounts of money were involved, but these factors did not lead to enhancement of the sentences. Yang maintained that there was no evidence which showed that he was the person who threatened the victims, so this should not be the reason for giving him a heavy sentence. Yang further submitted that the Government of Hong Kong should give a great deal of publicity to this kind of deception, so that the prevalence of these crimes could be checked, rather than severely punish people who did not know the truth for the wrongdoing of somebody else. He also said there were similar cases in which the sentences passed were lighter than those he received. For these reason, he asked for a chance to have his sentences reduced.", "zh-HK": "楊家誠亦指任何串謀案件都涉及有計劃犯案，而眾多的商業詐騙案涉及的金額都很大，但法庭都不會特別加刑。楊家誠力稱沒有證據證明是他恐嚇受害人，故不應以該理由重判他。楊家誠更認為香港政府應針對這類騙案作出廣泛宣傳，令這類罪行不致變得太猖獗，而非重判一些不知情者，令他們成為代罪羔羊。他亦指有同類案件的判刑較他的判刑為輕，因此要求法庭讓他有減刑機會。" } }, { "doc_id": 136, "seg_id": 62, "translation": { "en": "As for Pan, he stressed that he just gave help by receiving some phone calls, and that because he wanted to do business, he was made use of. He submitted that he had a clear record and gained no benefit in these activities, but that his sentence of 57 months was heavier than the sentences passed in similar cases. Pan also pleaded for reduction of his sentence.", "zh-HK": "潘榮文亦強調他只是幫人接電話，為了做生意而遭人利用。他力稱自己沒有犯罪記錄，在事件亦沒有得益，但57個月的判刑則較其他同類案件為重。潘榮文亦要求獲得減刑。" } }, { "doc_id": 136, "seg_id": 63, "translation": { "en": "Discussion about sentence", "zh-HK": "討論判刑" } }, { "doc_id": 136, "seg_id": 64, "translation": { "en": "We agreed with the views held by the learned judge, i.e. the crimes committed by the two applicants are very serious. They took advantage of the victims’ love towards their children and threatened them with the likelihood that harm would be done to their children. The targets of these swindlers were members of the underprivileged class, and their purpose was to squeeze as much money out of them as possible.", "zh-HK": "本庭認同原審法官的立場，即兩名申請人干犯的罪行，非常嚴重。他們利用受害人愛護子女之心而以他們子女的安危恐嚇受害人。騙徒針對的對象亦是一些較弱勢的社群，目的更是盡量從他們身上取得金錢。" } }, { "doc_id": 136, "seg_id": 65, "translation": { "en": "Even though it can be said that the amount of money which the swindlers ultimately obtained was less than that involved in other commercial fraud cases, the money could be the life savings of the victims built up through years of their hard work.", "zh-HK": "雖然騙徒最終取得的金錢和其他商業詐騙案相比，可屬較少，但卻可能是受害人畢生的血汗積蓄。" } }, { "doc_id": 136, "seg_id": 66, "translation": { "en": "Both applicants were adamant that the roles they played in these crimes were not major ones and that they were made use of by somebody. In any conspiracy case, the people participate in it have different roles to play. They are like acting in a play. Other people will never know what really went on backstage, but everyone of them does participate in the crime and not one of them can be dispensed with. The fact that the roles played by the applicants were not major ones is not a mitigating factor.", "zh-HK": "兩名申請人都力稱自己在罪行所扮演的角色不重，更是遭人利用。在任何串謀犯罪案件，不同串謀者扮演的角色不同。由於他們都只是“做戲”，其確實角色，他人無從知悉。但他們都有參與罪行，其扮演的角色亦是缺一不可。申請人指自己扮演角色不重，並非減刑理由。" } }, { "doc_id": 136, "seg_id": 67, "translation": { "en": "The crimes committed by the two applicants have done great harm to the victims and to the society as a whole. Heavy sentence must be imposed to deter anyone from committing these crimes. Yang’s claim that he was a scapegoat being punished for the wrongdoing of somebody else is simply incredible.", "zh-HK": "兩名申請人所犯的罪行，對個別受害人及社會整體都做成極大危害，必需重判，以收阻嚇作用。楊家誠指自己成為代罪羔羊，更屬指鹿為馬之說法。" } }, { "doc_id": 136, "seg_id": 68, "translation": { "en": "None of the applicants is a local resident. Their sole purpose of coming to Hong Kong was to commit the crimes. If they had been successful, to track them down would have to surmount immense difficulties. This factor warrants additional punishment for them.", "zh-HK": "兩名申請人都不是本地人，他們專程到港犯案，如他們成功，則偵破他們罪行更是困難重重。上述因素令兩名申請人的罪行罪加一等。" } }, { "doc_id": 136, "seg_id": 69, "translation": { "en": "Information shows that telephone deceptions are prevalent and the number of these cases is on the increase. The learned judge is justified and correct in granting the prosecution’s application and enhancing their sentences by 50% pursuant to the Organized and Serious Crimes Ordinance.", "zh-HK": "有資料顯示電話詐騙的罪行非常普遍，更有上升趨勢。原審法官應控方申請，根據《有組織及嚴重罪行條例》加刑50%，亦是有根據及正確的。" } }, { "doc_id": 136, "seg_id": 70, "translation": { "en": "We endorse the learned judge’s conclusion that the telephone deceptions committed by the two applicants are more serious than the common street deceptions. Usually the victims in the street deceptions fell prey to the evildoers because of their own greed, superstition or stupidity. This kind of victims are not too many in number and since street deceptions are committed in public places, there can be eyewitnesses and so there will be more chances to crack these cases. These two applicants deceived the victims by taking advantage of the victims’ concern for the safety of their sons. There is an element of blackmail in their conduct. People who are not greedy, superstitious or stupid might also be deceived. The two applicants committed their crimes in such a way that the victims were overcome by fear, and by making the victims maintain telephone communication with them, they created formidable obstacles to any attempt to find out the truth.", "zh-HK": "本庭同意原審法官的立場，即兩名申請人所犯之電話詐騙案較一般的街頭詐騙案更為嚴重。街頭詐騙案的受害人多是因為貪婪、迷信或愚蠢而令壞人有機可乘。該類受害人數目不會太多而街頭詐騙因在公眾地方干犯，會有其他人士目睹而遭偵破的機會亦較大。兩名申請人是利用受害人對兒子安危的關注而詐騙他們，罪行有勒索成份，一些並非貪婪、迷信或愚蠢的人士亦極有可能受騙。兩名申請人的罪行會令受害人感到極度恐慌，而他們的犯罪手法，包括要受害人一直以電話和犯案者保持通話更令有關案件極難偵破。" } }, { "doc_id": 136, "seg_id": 71, "translation": { "en": "In HKSAR v. Hung Yung Chun and another (CACC 453/2009), this court stated that the culpability in telephone deception cases was more serious than that in street deception cases, and that a higher starting point should be adopted. In fact, it was held in that case that the starting point for telephone deception should be 4 years, which is higher than the 40 months used by the learned judge in this case.", "zh-HK": "本庭在香港特別行政區 訴 洪永俊及另一人（CACC 453/2009）案已認定電話騙案的罪責較街頭騙案更嚴重，應採納的量刑基準亦要更高。事實上，本庭在該案裁定電話騙案的量刑基準應為4年，較原審法官在本案所採納的40個月更高。" } }, { "doc_id": 136, "seg_id": 72, "translation": { "en": "The court certainly should also take into account the totality principle. In Hung Yung Chun, the percentage by which the court enhanced the sentences pursuant to the Organized and Serious Crimes Ordinance was only 30%, while the learned judge enhanced the sentence by 50%. However, if the starting point is 4 years, then the sentence arrived at after enhancing it by one third is 64 months, which is more than the 60 months arrived at by the learned judge by adopting a 40 months’ starting point and then enhancing it by 50%.", "zh-HK": "當然，法庭亦要考慮整體判刑。在上述洪永俊案，法庭根據《有組織及嚴重罪行條例》加刑之幅度只是30%，而原審法官採納的加刑幅度是50%。但如以量刑基準四年, 即使是加刑三份之一，得出的刑期是64個月，較原審法官採納之40個月，加刑50% 後得出之60個月判刑更高。" } }, { "doc_id": 136, "seg_id": 73, "translation": { "en": "The two applicants admitted most of the prosecution case so that the victims did not need to go to court to give evidence and was spared the agony of having to go through and bring up again their unhappy experiences. The learned judge was correct in deducting 2 months from the starting point.", "zh-HK": "兩名申請人承認大部份控方案情，免卻受害人出庭作供，令他們無需回憶及重提不快往事。原審法官將量刑基準扣減兩個月是合適的。" } }, { "doc_id": 136, "seg_id": 74, "translation": { "en": "Encouraged by his success in the deceptions, Yang broke the law 4 times within just a short period. The learned judge was entitled to make him serve 8 more months for each charge other than the first one.", "zh-HK": "楊家誠食髓知味，在短期內4次犯案，原審法官有權每項額外控罪加刑8個月。" } }, { "doc_id": 136, "seg_id": 75, "translation": { "en": "We find that the ultimate sentences imposed by the learned judge on the two applicants are appropriate and not manifestly excessive. Therefore, there is no room for any reduction. We dismiss the applicants’ application for leave to appeal against sentence.", "zh-HK": "本庭認為原審法官針對兩名申請人的最終判刑是恰當，而非明顯過重，故沒有扣減餘地。本庭亦駁回兩名申請人就判刑之上訴許可申請。" } }, { "doc_id": 136, "seg_id": 76, "translation": { "en": "Ms. Lily Wong, Senior Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官王詩麗代表。" } }, { "doc_id": 136, "seg_id": 77, "translation": { "en": "The 1st Applicant, acting in person, present.", "zh-HK": "第一申請人：無律師代表，親自應訊。" } }, { "doc_id": 136, "seg_id": 78, "translation": { "en": "The 2nd Applicant, acting in person, present.", "zh-HK": "第二申請人：無律師代表，親自應訊。" } }, { "doc_id": 137, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving reasons for judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 137, "seg_id": 2, "translation": { "en": "These are the reasons for the judgment of this Court of 15 February 2007.", "zh-HK": "這是本庭 2007 年 2 月 15 日判案的理由。" } }, { "doc_id": 137, "seg_id": 3, "translation": { "en": "Background", "zh-HK": "背境" } }, { "doc_id": 137, "seg_id": 4, "translation": { "en": "The Applicant faced 5 charges. He was convicted of 4 of them by Deputy District Judge William Ng after trial and was sentenced to 5 years and 4 months’ imprisonment.", "zh-HK": "申請人被控五項控罪。經區域法院暫委法官吳承威審理後被裁定其中四項控罪罪名成立及判監五年四個月。" } }, { "doc_id": 137, "seg_id": 5, "translation": { "en": "On 1 September 2005, the Applicant applied to the Court of Appeal for leave to appeal against conviction and sentence and submitted a “Notice of Application for Leave to Appeal” accordingly. On 9 December 2005, he submitted a “Notice of Abandonment of Application for Leave to Appeal” (“Notice of Abandonment”), and the court dismissed his application for leave to appeal on the same day.", "zh-HK": "申請人於 2005 年 9 月1 日就定罪及刑期提交「申請上訴許可的通知」向上訴法庭申請上訴許可。同年 12 月9 日申請人就有關的申請提交「放棄通知」，法庭於同日駁回申請人的上訴許可申請。" } }, { "doc_id": 137, "seg_id": 6, "translation": { "en": "On 4 July 2006, the Applicant submitted an affidavit asking the court to treat the Notice of Abandonment as a nullity. On 18 September 2006, he filed a set of perfected grounds of appeal against the conviction on the second charge.", "zh-HK": "申請人於 2006 年 7 月 4 日提交誓章，要求法庭視他提交的「放棄通知」無效。2006 年 9 月 18 日申請人就第二項控罪的定罪存檔一份完備的上訴理由。" } }, { "doc_id": 137, "seg_id": 7, "translation": { "en": "Mr. Steven Kwan and Mr. Eugene Yim, Counsel for the Applicant under the Free Legal Service Scheme of the Hong Kong Bar Association, contended that as the perfected grounds of appeal submitted by the Applicant involved a question of law alone, he could, by virtue of the Criminal Procedure Ordinance, lodge an appeal to the Court of Appeal as of right without leave to appeal. Mr. Kwan and Mr. Yim took the view that the Notice of Abandonment submitted by the Applicant earlier on would not affect his appeal.", "zh-HK": "代表申請人的關文渭、嚴永錚大律師（香港大律師公會法律義助服務計劃）指出由於申請人所提交的完備上訴理由書僅涉及法律問題，因此根據《刑事訴訟程序條例》申請人是無須上訴許可也有當然權利向上訴法庭提出上訴。關大律師和嚴大律師認為申請人早前所提交的放棄上訴許可申請的通知書亦不會影響他的上訴。" } }, { "doc_id": 137, "seg_id": 8, "translation": { "en": "May only appeal once", "zh-HK": "只可一次上訴" } }, { "doc_id": 137, "seg_id": 9, "translation": { "en": "Section 82 of the Criminal Procedure Ordinance, Cap. 221 of the Laws of Hong Kong, provides as follows:", "zh-HK": "香港法例第 221 章《刑事訴訟程序條例》第 82 條說 ：" } }, { "doc_id": 137, "seg_id": 10, "translation": { "en": "循公訟程序被定罪的人可針對其定罪向上訴法庭提出上訴。\t(1)\tA person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.", "zh-HK": "(1)" } }, { "doc_id": 137, "seg_id": 11, "translation": { "en": "(2) The appeal may be ―", "zh-HK": "(2) 上訴可基於以下的理由―" } }, { "doc_id": 137, "seg_id": 12, "translation": { "en": "on any ground which involves a question of law alone; and", "zh-HK": "任何僅涉及法律問題的理由；及" } }, { "doc_id": 137, "seg_id": 13, "translation": { "en": "with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal;", "zh-HK": "(經上訴法庭許可)任何僅涉及事實問題的理由，或是涉及法律兼事實問題的理由，或上訴法庭覺得是足夠的上訴理由的任何其他理由；" } }, { "doc_id": 137, "seg_id": 14, "translation": { "en": "but if the judge of the court of trial grants a certificate that the case is fit for appeal on a ground which involves a question of fact, or a question of mixed law and fact, an appeal lies under this section without the leave of the Court of Appeal.", "zh-HK": "但如主審法庭的法官發給一份證明書，證明該案件適合基於涉及事實問題的理由或涉及法律兼事實問題的理由提出上訴，則可無需經上訴法庭許可而根據本條提出上訴。’" } }, { "doc_id": 137, "seg_id": 15, "translation": { "en": "Although the Ordinance states that if the appeal is on any ground which involves a question of fact alone or a question of mixed law and fact, it may only be lodged with the leave of the Court of Appeal, it does not mean that the Applicant, having submitted a Notice of Abandonment, may submit another Notice of Appeal for appeal without the leave of the court. This is not the intention of section 82, which, in our view, only allows the Applicant to appeal against his conviction or sentence once. If his ground of appeal involves a question of law alone, he does not require the leave of the Court of Appeal before lodging the appeal; otherwise, he must obtain the leave of the Court of Appeal before he may lodge an appeal.", "zh-HK": "雖然該條例指出，假如上訴僅涉及事實問題的理由或是涉及法律兼事實問題的理由需要經上訴法庭給予許可才可以提出上訴，但並不表示申請人在提交放棄申請上訴通知書後無須經法庭批准就可以提交另一份上訴通知書提出上訴。這不是第 82 條的原意。本庭認為第 82 條只是准許申請人對定罪或刑期提出一次上訴，若上訴人所持的理由純粹是涉及法律問題，他就不需要先獲上訴法庭給予許可才可提出上訴；不然的話，他必須要獲得法庭許可後才就有關的理由提出上訴。" } }, { "doc_id": 137, "seg_id": 16, "translation": { "en": "The English Court of Appeal stated clearly in R v. Pinfold [1988] 1 QB 462 that if an appellant’s appeal has been dismissed by the court, he is not entitled to lodge another appeal, subject to the following two exceptions:", "zh-HK": "英國上訴法庭在R v. Pinfold [1988] 1 Q.B. 462 一案亦清楚指出若上訴人的上訴已被法庭駁回，他是無權再提出另一次上訴，但有以下兩個例外情況：" } }, { "doc_id": 137, "seg_id": 17, "translation": { "en": "The decision on the original appeal is a nullity. For example, the appellant submitted a Notice of Abandonment of Appeal and subsequently asked the court to treat that Notice as a nullity;", "zh-HK": "原本的判決是無效的，例如上訴人提交放棄上訴通知書之後要求法庭視該份放棄通知書為無效；" } }, { "doc_id": 137, "seg_id": 18, "translation": { "en": "The appellant has suffered injustice by reason of some material irregularity in the appeal procedure. For example, the appellant had not been notified of the hearing, as a result of which he was absent from the hearing, or the counsel acting for him was unable to attend the hearing, as a result of which the court dismissed his appeal.", "zh-HK": "在上訴程序中出現了重大的錯誤致令上訴人獲得一個不公的判決，如上訴人因沒有接獲聆訊通知書，以致缺席聆訊或者他的代表律師未能出席聆訊，以致法庭撤銷他的上訴。" } }, { "doc_id": 137, "seg_id": 19, "translation": { "en": "In HKSAR v. Ma Chiu Sing, CACC 4/2003, this Court (Stuart-Moore VP, Burrell J and Suffiad J) made mention of the Pinfold case but did not go on to explain that case as it was irrelevant to the case in hand.", "zh-HK": "本庭(上訴法庭副庭長司徒冕、原訟法庭法官貝偉和石輝)在HKSAR v. Ma Chiu Sing （馬照聲）， CACC 4/2003 曾經提及 Pinfold 一案，但由於與案情無關，故此本庭在該案沒有對 Pinfold 作出詮釋。" } }, { "doc_id": 137, "seg_id": 20, "translation": { "en": "Treating a Notice of Abandonment of Application for Leave to Appeal as a nullity", "zh-HK": "視放棄上訴許可申請通知書為無效" } }, { "doc_id": 137, "seg_id": 21, "translation": { "en": "In our view, the Applicant must obtain the leave of this Court to treat the Notice of Abandonment submitted by him as a nullity before he may lodge a further appeal against his conviction. In HKSAR v. Lai Siu Cheung [2005] 1 HKLRD 1, this Court (Stuart-Moore VP and Jackson J) explained in detail the legal principles governing this type of application:", "zh-HK": "本庭認為申請人必須先獲得本庭的批准，視他所提交的放棄上訴許可通知書為無效，才可以就他的定罪再提出上訴。有關這類申請的法律原則，本庭 (上訴法庭副庭長司徒冕及原訟法庭法官翟克信)在HKSAR v. Lai Siu Cheung [黎兆詳（譯音）] [2005] 1 HKLRD 一案已經作出詳細的詮釋：" } }, { "doc_id": 137, "seg_id": 22, "translation": { "en": "上訴權是由法規賦予的。申請人一旦放棄上訴，以致上訴被撤銷，除非該放棄行爲被視作無效，或是該事按《刑事訴訟程序條例》(第221章) 第83P條給轉交行政長官，否則上訴法庭並沒有固有司法管轄權重新處理上訴。法庭只可以在以下的情況才會視申請人放棄上訴的行為是無效的：申請人不是在知情的情況下刻意決定作出該放棄行爲，即申請人的意願跟該放棄行爲互不相稱。\t(1)\tThe right of appeal is conferred by statute. Once an applicant has abandoned an appeal, which has accordingly been dismissed, the Court of Appeal does not have any inherent jurisdiction to entertain the reopening of the appeal unless the act of the abandonment is treated as a nullity, or the matter is referred to the Chief Executive under section 83P of the Criminal Procedure Ordinance. Only under the following circumstance may the court treat an applicant’s act of abandonment of an appeal as a nullity: the act of abandonment was not the result of the applicant’s deliberate and informed decision, in other words, the mind of the applicant did not go with his act of abandonment.", "zh-HK": "(1)" } }, { "doc_id": 137, "seg_id": 23, "translation": { "en": "申請人放棄上訴的行爲可否被視作無效是關乎申請人對於他所簽署的文件的效用或後果是否了解，或者對於他假若堅持上訴的結果是否有所誤解。如果申請人所依賴的錯誤意見，與該放棄行爲的性質或效果有關，則該放棄通知書會被視作無效。若申請人在恰當了解有關情況下，知道他所簽署的是什麽文件，亦知道他所簽署的文件的效用，而他在這種知情的情況下，刻意簽署該文件，那他要證明該放棄行爲為無效將會非常困難。\t(2)\tWhether an applicant’s act of abandonment will be regarded as a nullity depends on his understanding of the effect or consequences of the document he was signing or, perhaps, misapprehending the effect of an appeal were he to persist. If the erroneous advice relied upon by the applicant relates to the nature or effect of the act of abandonment, the Notice of Abandonment will be regarded as a nullity. If the applicant who, properly informed, knew the nature and effect of the document he was signing and, with that knowledge, deliberately signed the document, it will be hard pressed to show that that act is a nullity.", "zh-HK": "(2)" } }, { "doc_id": 137, "seg_id": 24, "translation": { "en": "如果申請人是受到在上訴勝算方面不正確的法律意見的影響而簽署了放棄上訴通知書，該通知書不會被宣告無效。原因是關於上訴的是非曲直的錯誤意見，並非與簽署該放棄通知書或與其性質有關的意見。\t(3)\tIf the applicant signed the Notice of Abandonment of Appeal pursuant to erroneous legal advice as to the prospect of success of the appeal, the Notice will not be declared a nullity because wrong advice given as to the merits of an appeal is not advice that goes to the nature of, or to the signing of, the Notice.", "zh-HK": "(3)" } }, { "doc_id": 137, "seg_id": 25, "translation": { "en": "The Court of Appeal’s refusal to entertain a renewed appeal in such circumstances does not leave the applicant without remedy: section 83P of the Criminal Procedure Ordinance provides the remedy for appropriate cases.", "zh-HK": "在這種情況下，被上訴法庭拒絕受理重新提出上訴的申請人並非全無補救機會：《刑事訴訟程序條例》第83P條就適當的案件提供有關的補救方法。" } }, { "doc_id": 137, "seg_id": 26, "translation": { "en": "The Applicant said that he abandoned his application for leave to appeal because at that time he had not been granted legal aid. We do not consider this reason to be in accord with the aforesaid legal principles. The Applicant must show that at that time he did not intend to abandon his appeal. He clearly had not erroneously abandoned his appeal or misapprehended the consequence of such abandonment; the act of abandonment was made after consideration. Therefore, we will not treat the Notice of Abandonment submitted by him earlier on as a nullity.", "zh-HK": "申請人指他放棄申請上訴許可的原因是當時他未能獲得法律援助的協助。本庭認為這並不是一個符合上述有關法律原則的理由。申請人必須證明他當時是沒有意願放棄上訴。明顯地，申請人絕對不是錯誤地放棄上訴或是誤解放棄上訴的後果；他是經過考慮才放棄上訴的，故此本庭不會將他早前提交的放棄上訴通知書視為無效的。" } }, { "doc_id": 137, "seg_id": 27, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 137, "seg_id": 28, "translation": { "en": "In any event, the Applicant has failed to put forward sufficient grounds of appeal. Therefore, even if his explanation regarding abandonment of appeal were in accord with the aforesaid legal principles, we would not grant him leave to appeal.", "zh-HK": "無論如何申請人現提交的上訴理由亦不是一個充分的上訴理由，故此就算申請人的解釋符合上述有關法律原則，本庭亦不會批准上訴。" } }, { "doc_id": 137, "seg_id": 29, "translation": { "en": "The Applicant is lodging an appeal only against his conviction on one of the four charges on which he was convicted, i.e. the second charge of assisting the passage within Hong Kong of an unauthorized entrant, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong. The particulars of charge stated that the Applicant assisted the passage within Hong Kong of an unauthorized entrant, i.e. the 2nd defendant at trial (D2), on 4 March 2005. The facts of the case revealed that on 4 March 2005, the Marine Police chased after and intercepted a motorized sampan, with the Applicant and D2 on board, in the Hong Kong waters to the south of the Ninepin Group Islands, Sai Kung. The sampan was on fire and sank. The Marine Police rescued the Applicant and D2. The Applicant admitted that he was a fisherman residing in Nanao, Shenzhen, Mainland China. At the material time, he was navigating the sampan, with D2 on board, from Nanao to Dangan Island for the purpose of picking buddhist pine trees. On their return journey, they came across a police launch. The Applicant was not authorized to enter Hong Kong. At trial, Counsel for the Applicant did not dispute that D2 was an unauthorized entrant.", "zh-HK": "申請人現只是就四項被定罪的控罪的其中一項控罪（即第二項控罪）提出定罪上訴。這項控罪指申請人協助未獲授權進境者在香港境內的旅程，違反香港法例第 115 章《入境條例》第 37D(1)(a) 條。控罪詳情指申請人於 2005 年 3 月 4 日協助一名未獲授權進境者，即案件的第二被告人，在香港境內的旅程。案情顯示水警於 2005 年 3 月 4 日在西貢果洲群島以南的香港水域追截一艘載有申請人及第二被告人的機動舢舨。舢舨著火沉沒，水警在海上救起申請人及第二被告人。申請人承認他是大陸深圳南澳的漁民及在該處居住。事發時他駕駛舢舨與第二被告人從南澳到擔桿島採摘羅漢松，在回程時遇到一艘水警輪。他是沒有獲授權進入香港的。審訊時，代表申請人的大律師沒有就第二被告人是一名未獲授權進境者的議題提出爭議。" } }, { "doc_id": 137, "seg_id": 30, "translation": { "en": "The ground of appeal now put forward by Mr. Kwan and Mr. Yim is that D2 was not an unauthorized entrant.", "zh-HK": "現關大律師及嚴大律師所持的上訴理由是第二被告人並非是一名未獲授權進境者。" } }, { "doc_id": 137, "seg_id": 31, "translation": { "en": "Immigration Ordinance", "zh-HK": "《入境條例》" } }, { "doc_id": 137, "seg_id": 32, "translation": { "en": "Section 37D(1) of the Immigration Ordinance provides as follows:", "zh-HK": "《入境條例》第 37D(1) 條說：" } }, { "doc_id": 137, "seg_id": 33, "translation": { "en": "除第（2）款另有規定外，任何人如自行或代表任何其他人(不論該其他人是否在香港)――\t(1)\tSubject to subsection (2), any person who, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong ―", "zh-HK": "（1）" } }, { "doc_id": 137, "seg_id": 34, "translation": { "en": "arranges or assists the passage to, or within, Hong Kong;", "zh-HK": "安排或協助未獲授權進境者或載有未獲授權進境者的運輸工具前來香港或在香港境內的旅程；" } }, { "doc_id": 137, "seg_id": 35, "translation": { "en": "offers to arrange or assist the passage to, or within, Hong Kong; or", "zh-HK": "要約安排或協助未獲授權進境者或載有未獲授權進境者的運輸工具前來香港或在香港境內的旅程；或" } }, { "doc_id": 137, "seg_id": 36, "translation": { "en": "does or offers to do an act preparatory to or for the purpose of arranging or assisting the passage to, or within, Hong Kong,", "zh-HK": "作出或要約作出一項作為，以準備安排或協助，或旨在安排或協助未獲授權進境者或載有未獲授權進境者的運輸工具前來香港的旅程或在香港境內的旅程，" } }, { "doc_id": 137, "seg_id": 37, "translation": { "en": "of a person who is, or of a conveyance which carries, an unauthorized entrant, commits an offence and is liable ―", "zh-HK": "均屬犯罪――" } }, { "doc_id": 137, "seg_id": 38, "translation": { "en": "on conviction on indictment to a fine of $5,000,000 and to imprisonment for 14 years; (Amended 82 of 1993 s.8)", "zh-HK": "經公訴程序定罪後，可處罰款 $5,000,000及監禁 14 年； (由1993年第82號第8條修訂)" } }, { "doc_id": 137, "seg_id": 39, "translation": { "en": "on summary conviction to a fine of $350,000 and to imprisonment for 3 years. (Amended L.N. 25 of 1996)", "zh-HK": "經簡易程序定罪後，可處罰款 $350,000及監禁3年。(由1996年第25號法律公告修訂)’" } }, { "doc_id": 137, "seg_id": 40, "translation": { "en": "According to section 37A of the Immigration Ordinance:", "zh-HK": "根據《入境條例》第 37A 條：" } }, { "doc_id": 137, "seg_id": 41, "translation": { "en": "‘unauthorized entrant’ (未獲授權進境者) means a person belonging to a class or description of persons who, by an order made under section 37B, are declared to be unauthorized entrants, other than a person who under subsection (2) of that section is excepted from the declaration in such order.", "zh-HK": "“未獲授權進境者”(unauthorized entrant) 指屬於某一界別或種類並根據第37B條發出的命令被宣布為未獲授權進境者的人，但根據該條例第（2）款由命令宣布屬於例外的人除外。’" } }, { "doc_id": 137, "seg_id": 42, "translation": { "en": "Furthermore, section 37B of the Ordinance states that:", "zh-HK": "另外，該條例第 37B 條說：" } }, { "doc_id": 137, "seg_id": 43, "translation": { "en": "總督會同行政局可發出命令，宣布任何界別或種類的人(享有香港居留權或憑藉第 2AAA 條擁有香港入境權的人除外)為未獲授權進境者。\t(1)\tThe Governor in Council may by order declare any class or description of persons, other than persons who enjoy the right of abode in Hong Kong, or have the right to land in Hong Kong by virtue of section 2AAA, to be unauthorized entrants.", "zh-HK": "(1)" } }, { "doc_id": 137, "seg_id": 44, "translation": { "en": "根據第(1)款作出的宣布，可受命令所指明的例外情況規限。’\t(2)\tA declaration under subsection (1) may be made subject to such exceptions as are specified in the order.", "zh-HK": "(2)" } }, { "doc_id": 137, "seg_id": 45, "translation": { "en": "The Governor to which the aforesaid section 37B(1) refers is the Hong Kong Governor prior to 1 July 1997, and the relevant order is the Immigration (Unauthorized Entrants) Order made on 7 August 1979 (“Immigration Order”). The Immigration Order, which is a subsidiary legislation, provides as follows:", "zh-HK": "上述37B(1) 條所說的總督是指 1997 年 7 月 1 日之前的香港總督，而有關的命令是1979 年 8 月 7 日所頒發的《入境（未獲授權進境者）令》 （‘《入境令》’）。該《入境令》是一項附屬法例，內容是：" } }, { "doc_id": 137, "seg_id": 46, "translation": { "en": "宣布何人為未獲授權進境者\t2.\tDeclaration of unauthorized entrants", "zh-HK": "2." } }, { "doc_id": 137, "seg_id": 47, "translation": { "en": "除第 (2) 款另有規定外，現宣布下述的人為未獲授權進境者――\t(1) \tSubject to the exceptions specified in sub-paragraph (2), the following persons are declared to be unauthorized entrants ―", "zh-HK": "(1) " } }, { "doc_id": 137, "seg_id": 48, "translation": { "en": "all persons resident or formerly resident in Vietnam;", "zh-HK": "目前或先前居於越南的人；" } }, { "doc_id": 137, "seg_id": 49, "translation": { "en": "all persons who leave, or seek to leave, the People’s Republic of China when not in possession of documents issued in that country permitting them to do so in accordance with its laws;", "zh-HK": "未持有中華人民共和國所發准予按照該國法律離開的證件而離開或尋求離開該國的人；" } }, { "doc_id": 137, "seg_id": 50, "translation": { "en": "all persons resident or formerly resident in Macau;", "zh-HK": "目前或先前居於澳門的人；" } }, { "doc_id": 137, "seg_id": 51, "translation": { "en": "all persons who are or have been in Macau, whether in transit or in any other circumstances whatsoever.", "zh-HK": "在過境或是在任何其他情況下目前身在或曾到過澳門的人。" } }, { "doc_id": 137, "seg_id": 52, "translation": { "en": "下述的人為第 (1) 款的宣布所不包括者――\t(2)\tThe following persons are excepted from the declaration in subparagraph (1) ―", "zh-HK": "(2)" } }, { "doc_id": 137, "seg_id": 53, "translation": { "en": "any person holding a travel document ―", "zh-HK": "任何持有下述旅行證件的人――" } }, { "doc_id": 137, "seg_id": 54, "translation": { "en": "in relation to which an exemption has been granted under section 61(2) of the Ordinance; or", "zh-HK": "獲根據本條例第 61(2) 條給予豁免的旅行證件；或" } }, { "doc_id": 137, "seg_id": 55, "translation": { "en": "which bears an unexpired visa issued by or on behalf of the Director of Immigration; and", "zh-HK": "其上註有人民入境事務處處長發出或代其發出的未期滿簽證的旅行證件；及" } }, { "doc_id": 137, "seg_id": 56, "translation": { "en": "獲入境事務主任或入境事務助理員給予准許入境的人。’\t(b)\tany person who has been granted permission to land by an immigration officer or immigration assistant.", "zh-HK": "(b)" } }, { "doc_id": 137, "seg_id": 57, "translation": { "en": "Basic Law", "zh-HK": "《基本法》" } }, { "doc_id": 137, "seg_id": 58, "translation": { "en": "In support of the argument that D2 was not an unauthorized entrant, Mr. Kwan and Mr. Yim have cited the Basic Law and the Interpretation and General Clauses Ordinance, Cap. 1 of the Laws of Hong Kong (“IGCO”). Article 1 of the Basic Law states that:", "zh-HK": "就第二被告人並非一名未獲授權進境者的論點，關大律師及嚴大律師引用了《基本法》及香港法例第一章《釋義及通則條例》來支持有關的論點。《基本法》第一條說 :-" } }, { "doc_id": 137, "seg_id": 59, "translation": { "en": "The Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China.", "zh-HK": "“香港特別行政區是中華人民共和國不可分離的部分。”" } }, { "doc_id": 137, "seg_id": 60, "translation": { "en": "Article 8 of the Basic Law states that:", "zh-HK": "《基本法》第八條說:-" } }, { "doc_id": 137, "seg_id": 61, "translation": { "en": "香港原有法律，即普通法、衡平法、條例、附屬立法和習慣法，除同本法相抵觸或經香港特別行政區的立法機關作出修改者外，予以保留。”\tThe laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.", "zh-HK": "“" } }, { "doc_id": 137, "seg_id": 62, "translation": { "en": "IGCO", "zh-HK": "《釋義及通則條例》" } }, { "doc_id": 137, "seg_id": 63, "translation": { "en": "Section 2A(1) and (3) of the IGCO provides that:", "zh-HK": "《釋義及通則條例》第 2A(1) 及 (3) 條規定:-" } }, { "doc_id": 137, "seg_id": 64, "translation": { "en": "所有原有法律均須在作出為使它們不抵觸《基本法》及符合香港作為中華人民共和國的特別行政區的地位而屬必要的變更、適應、限制及例外的情況下，予以解釋。\t(1) \tAll laws previously in force shall be construed with such modifications, adaptations, limitations and exceptions as may be necessary so as not to contravene the Basic Law and to bring them into conformity with the status of Hong Kong as a Special Administrative Region of the People’s Republic of China.", "zh-HK": "“(1) " } }, { "doc_id": 137, "seg_id": 65, "translation": { "en": "在所有原有法律中出現的列於附表 8 的字和詞句，須按照該附表解釋。”\t(3)\t\tIn all laws previously in force words and expressions listed in Schedule 8 shall be construed according to that Schedule.", "zh-HK": "(3)" } }, { "doc_id": 137, "seg_id": 66, "translation": { "en": "The relevant provision in Schedule 8 to the IGCO is:", "zh-HK": "《釋義及通則條例》附表 8 的有關條文為:-" } }, { "doc_id": 137, "seg_id": 67, "translation": { "en": "Construction on and after 1 July 1997 of words and expressions in laws previously in force", "zh-HK": "“原有法律中的詞語和詞句在 1997 年 7月 1 日及之後的解釋..." } }, { "doc_id": 137, "seg_id": 68, "translation": { "en": "對中華人民共和國或中國（或相類名稱、詞語或詞句）的提述，須解釋為對包括台灣、香港特別行政區及澳門在內的中華人民共和國的提述。”’\t17.\tAny reference to the People’s Republic of China or to China (or to similar names, terms or expressions) shall be construed as a reference to the People’s Republic of China as including Taiwan, the Hong Kong Special Administrative Region and Macau.", "zh-HK": "17." } }, { "doc_id": 137, "seg_id": 69, "translation": { "en": "The Applicant’s argument", "zh-HK": "申請人的理據" } }, { "doc_id": 137, "seg_id": 70, "translation": { "en": "Mr. Kwan and Mr. Yim submitted that the Immigration Order, which has not been amended since 1 July 1997, was the law previously in force in Hong Kong to which section 2A(1) of the IGCO refers. It is argued that when the Immigration Order was made in 1979, persons who left or sought to leave China certainly included those who entered Hong Kong directly from Mainland China. However, after 1997, the Immigration Order cannot be interpreted in a way that contravenes Article 1 of the Basic Law. As from 1997, Hong Kong is an inalienable part of China, and “persons who leave, or seek to leave China” under the Immigration Order cannot include those who entered Hong Kong directly from Mainland China. Any interpretation of “China”, to which the Immigration Order referred, which excludes Hong Kong or Mainland China is unconstitutional.", "zh-HK": "關大律師及嚴大律師指《入境令》是《釋義及通則條例》第 2A(1) 條所指的原有法律。1997 年 7 月 1 日後《入境令》再沒有被修訂。他們指當《入境令》在1979 年頒發時離開或尋求離開中國的人士當然是包括從中國內地直接進入香港的人士，但在 1997 年之後，《入境令》的文意就不能與《基本法》第一條有所抵觸的。由於香港是中國不可分離的部分，故此在1997 年之後《入境令》所指的「離開或尋求離開中國的人」並不能包括從中國內地直接進入香港的人士，任何將《入境令》所指的中國解釋為不包括香港或中國內地的釋義都是違憲的。" } }, { "doc_id": 137, "seg_id": 71, "translation": { "en": "Discussion", "zh-HK": "本庭的意見" } }, { "doc_id": 137, "seg_id": 72, "translation": { "en": "It is clear that Article 1 of the Basic Law is absolute in the sense that no ordinance or subsidiary legislation can contravene it. However, we do not agree with the argument of Counsel for the Applicant. It is well-known that Hong Kong is a tiny but densely populated place. It is necessary for the government to control the entry into Hong Kong of people from other territories in order to maintain a reasonable allocation of social resources such as employment, education and medical services. The legislative intent of the Immigration Ordinance and the Immigration Order is to control the entry into Hong Kong of people from other territories. People subject to such control include those to whom paragraph 2(1)(aa) of the Immigration Order refers, namely those who leave, or seek to leave, China when not in possession of documents issued in that country permitting them to do so in accordance with its laws.", "zh-HK": "明顯地《基本法》第一條是絕對的，沒有任何條例或附屬法例可以與它相抵觸，但本庭不同意申請人代表律師的論點。眾所皆知，香港地少人多，政府必須控制外來人口進入香港以維持社會資源合理分配：如工作、教育、醫療等。《入境條例》及《入境令》的立法原意是管制香港地區之外的人士進入香港，這包括《入境令》第 2(1)(aa) 條所指的未持有中國所發准予按照該國法律離開證件而離開或尋求離開該國的人。" } }, { "doc_id": 137, "seg_id": 73, "translation": { "en": "This legislative intent is also apparent from the wording of the relevant provisions. When interpreting the legislative intent of the Immigration Order, the court cannot merely look at the literal meaning of the Order, but also has to consider the Order in conjunction with section 37D(1) of the Immigration Ordinance. The focus of these provisions is plainly on territorial distinction, i.e. the distinction between Hong Kong itself and places outside the territory of Hong Kong. This legislative intent or focus is not affected by the reunification of Hong Kong with China on 1 July 1997. Article 22 of the Basic Law serves to indicate that the relevant provisions do not contravene the principle of “Hong Kong is an inalienable part of China” under the Basic Law. Article 22 provides as follows:", "zh-HK": "這立法原意亦可從這些法規的文字表達出來。在詮釋《入境令》的立法原意時，法庭不可以單獨考慮該命令的文字意義，也要將《入境條例》第 37D(1) 和《入境令》的內容一併加以分析。這些法規文意的重點肯地是著眼於地區性的界別，即香港本身及香港境外地區的界別。這立法原意或法規文意沒有受到香港在1997 年 7 月 1 日回歸中國影響。有關的法規並沒有抵觸《基本法》的「香港是中國不可分割的部分」的概念，從《基本法》第 22 條的內容可見一斑：" } }, { "doc_id": 137, "seg_id": 74, "translation": { "en": "For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region […] shall be determined by the competent authorities of the Central People’s Government after consulting the government of the Region.", "zh-HK": "中國其他地區的人進入香港特別行政區需辦領批准手續，其中進入香港特別行政區的人數由中央人民政府主管部門徵求香港特別行政區政府的意見後確定。’" } }, { "doc_id": 137, "seg_id": 75, "translation": { "en": "Furthermore, according to the Interpretation by the Standing Committee of the National People’s Congress of Articles 22(4) and 24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China:", "zh-HK": "另外，根據《全國人民代表大會常務委員會關於中華人民共和國香港特別行政區《基本法》第二十二條第四款及第二十四條第二款第三項的解釋》：" } }, { "doc_id": 137, "seg_id": 76, "translation": { "en": "1.\tThe provisions of Article 22(4) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China regarding ‘For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval’ mean as follows: People from all provinces, autonomous regions, or municipalities directly under the Central Government, including those persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents, who wish to enter the Hong Kong Special Administrative Region for whatever reason, must apply to the relevant authorities of their residential districts for approval in accordance with the relevant national laws and administrative regulations, and must hold valid documents issued by the relevant authorities before they can enter the Hong Kong Special Administrative Region. It is unlawful for people from all provinces, autonomous regions, or municipalities directly under the Central Government, including persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents, to enter the Hong Kong Special Administrative Region without complying with the appropriate approval procedure prescribed by the relevant national laws and administrative regulations.", "zh-HK": "一、《中華人民共和國香港特別行政區基本法》第二十二條第四款關於“中國其他地區的人進入香港特別行政區須辦理批准手續”的現定，是指各省、自治區、直轄市的人，包括香治永久性居民在內地所生的中國籍子女，不論以何種事由要求進入香港特別行政區，均須依照國家有關法律、行政法規的規定，向其所在地區的有關機關申請辦理批准手績，並須持有有關機關製發的有效證件方能進入香港特別行政區。各省、自治區、直轄市的人，包括香港永久性居民在內地所生的中國籍子女，進入香港特別行政區，如未按國家有關法律、行政法規的規定辦理相應的批准手續，是不合法的。’" } }, { "doc_id": 137, "seg_id": 77, "translation": { "en": "And the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong states that:", "zh-HK": "還有，《中華人民共和國和大不列顛及北愛依蘭聯合王國政府關於香港問題的聯合聲明》亦說" } }, { "doc_id": 137, "seg_id": 78, "translation": { "en": "165.  \tEntry into the Hong Kong Special Administrative Region of person from other parts of China shall continue to be regulated in accordance with the present practice.", "zh-HK": "165.  對中國其他地區的人進入香港特別行政區將按現在實行的辦法管理。’" } }, { "doc_id": 137, "seg_id": 79, "translation": { "en": "The aforesaid provisions all show that there is a territorial distinction between Hong Kong and other parts of China as far as immigration matters are concerned. This distinction is not in conflict with the exercise by Mainland China of its sovereignty over Hong Kong, and is indeed expressly retained by the relevant laws.", "zh-HK": "上述幾項條文都顯示，中國體驗對香港行使主權和在入境事務這個範疇上，香港與中國其他地方的地區性分別。兩者不但沒有衝突，更是明確地被保留下來的。" } }, { "doc_id": 137, "seg_id": 80, "translation": { "en": "Paragraph 17 of Schedule 8 to the IGCO cited by the Applicant is not applicable to the Immigration Order. Paragraph 22 of Schedule 8 states that “This Schedule applies unless the context otherwise requires”, and the context of the Immigration Order is clearly the entry into Hong Kong of unauthorized entrants from other parts of China, which is outside the territory of Hong Kong.", "zh-HK": "申請人所引用《釋義及通則條例》附表 8 第 17 段並不適用於《入境令》，因為附表 8 第 22 段說明「除文意另所指外本附表適用。」。《入境令》文意明顯是指香港以外的其他中國地區未獲授權進境的人士。" } }, { "doc_id": 137, "seg_id": 81, "translation": { "en": "A fundamental axiom of statutory interpretation is that a statute cannot be interpreted in such a way as to render the statute absurd. If the principle of Hong Kong being an inalienable part of China is forced upon section 37D(1) of the Immigration Ordinance merely because Hong Kong is indeed an inalienable part of China, section 37D(1) will be given this absurd meaning: as Hong Kong is part of China, persons who have not been granted approval by China for leaving China would still have not left China even if they arrived in the territory of Hong Kong. Such an interpretation would render section 37D(1) meaningless. Nor does Hong Kong need such a provision because it would not have any legal effect on those defendants who have assisted the entry into Hong Kong of unauthorized entrants from China.", "zh-HK": "詮釋法規的其中一項重要原則是不可以令法規的意思變得荒謬。假若只因為香港是中國不可分割的一部分而強將這個概念加之於《入境條例》的第 37D(1) 條，這肯定是會令該條文的意思變得荒謬：由於香港是中國的，故此未獲中國批准離開中國的人士，就算到達了香港的境域亦依然從未離開中國。如這樣詮釋第 37D(1) 條，它就變成一條無意義的條文。香港亦不需要這樣的法規，因為它對那些協助未獲授權的中國人士進入香港的被告人完全沒有法律效力。" } }, { "doc_id": 137, "seg_id": 82, "translation": { "en": "The Applicant cited the judgment of Ma J (as he then was) in Shandong Textiles Import and Export Corp. v. Da Hua Nonferrous Metals Co. Ltd. [2002] 2 HKLRD 844 on the question of whether Mainland arbitral awards can be enforced in Hong Kong. Ma J pointed out that Mainland arbitral awards made between 1 July 1997 and February 2002 were not “Convention Awards” within the meaning of the Arbitration Ordinance. Although he did refer to Article 1 of the Basic Law, his judgment was made on the basis of the definition of “Convention Awards” in the New York Convention and cannot be applied generally to other circumstances or other ordinances. In our view, before determining whether a statutory provision contravenes the Basic Law, the legislative intent or context of that provision must first be ascertained.", "zh-HK": "申請人引用高等法院原訟法庭法官馬道立（當時官階）在 Shandong Textiles Import and Export Corp. v. Da Hua Nonferrous Metals Co. Ltd. [2002] 2 HKLRD 844 一案有關內地仲裁的判決可否在香港執行的裁決。馬法官指 1997 年 7 月 1 日至 2002 年 2 月期間的內地仲裁裁決並不是《仲裁條例》中所指的「公約裁決」。雖然馬法官是引用《基本法》第一條，但他的裁決是根據《紐約公約》內有關「公約裁決」的定義而作出的。他的裁決不可以被泛用於其他的情況或其他條例。本庭認為在詮釋某些法規是否和《基本法》有抵觸時最重要是要先確定這些法規的立法原意或文意後，才可作出決定。" } }, { "doc_id": 137, "seg_id": 83, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 137, "seg_id": 84, "translation": { "en": "For the above reasons, the application is dismissed.", "zh-HK": "故此本庭駁回有關的申請。" } }, { "doc_id": 137, "seg_id": 85, "translation": { "en": "Mr. Patrick Cheung, Deputy Principal Government Counsel, and Ms. Sally Yam, Senior Government Counsel, for the Respondent", "zh-HK": "答辯人：由律政司張維新副首席政府律師及任可高級政府律師代表。" } }, { "doc_id": 137, "seg_id": 86, "translation": { "en": "Mr. Steven Kwan and Mr. Eugene Yim, assigned by the Free Legal Service Scheme of the Hong Kong Bar Association, for the Applicant", "zh-HK": "申請人：由香港大律師公會法律義助服務計劃委派關文渭大律師及嚴永錚大律師代表。" } }, { "doc_id": 138, "seg_id": 1, "translation": { "en": "Hon Wright, J. (giving the reasons for judgment of the Court):", "zh-HK": "原訟法庭韋毅志法官（闡述本庭之判案理由）：" } }, { "doc_id": 138, "seg_id": 2, "translation": { "en": "The applicant was convicted after trial before McMahon J and a jury of a single charge of possession of a firearm. He was sentenced to undergo imprisonment for a period of 11 years. He sought leave to appeal that conviction. The applicant had earlier pleaded guilty to a further charge of possession of an offensive weapon in a public place: he was sentenced to a further four months imprisonment, of which two months was ordered to be served consecutively to the sentence on the first charge.", "zh-HK": "申請人被控一項管有槍械罪，在原訟法庭麥明康法官和陪審團席前受審，被判罪名成立，刑罰是11年監禁。他申請上訴許可以提出針對定罪的上訴。申請人較早時已承認另一項控罪，即在公眾地方管有攻擊性武器。就該項控罪他另外被判4個月監禁，其中兩個月須與首項控罪的刑罰分期執行。" } }, { "doc_id": 138, "seg_id": 3, "translation": { "en": "On 15 July 2011 we dismissed the applicant’s application and indicated that we would provide our reasons in due course, which we now do.", "zh-HK": "2011年7月15日，我等駁回申請人的申請，並表示會稍後說明理由，以下就是本庭的判案理由。" } }, { "doc_id": 138, "seg_id": 4, "translation": { "en": "It was the prosecution case that the applicant was seen driving his motor vehicle which he brought to a halt in Lei Cheng Uk Estate, Cheung Sha Wan, at around 9 p.m. on 4 February 2009. The applicant was intercepted after alighting the vehicle. The vehicle was searched. The firearm, a .38 calibre revolver, was found, wrapped in cloth, concealed inside the valance after the front offside wheel had been removed and the lining of the wheel arch moved aside.", "zh-HK": "控方案情指2009年2月4日晚上9時左右，警務人員看見申請人駕駛汽車並把汽車停在長沙灣李鄭屋邨。申請人下車後被截停。警務人員搜查該車。他們拿走右前輪，把車輪頂拱形罩的襯墊移到一旁，在裙緣裏找到一柄用布包着的點38口徑左輪手槍。" } }, { "doc_id": 138, "seg_id": 5, "translation": { "en": "Once the cloth package had been discovered but before it had been opened to reveal the presence of the firearm the applicant was arrested and cautioned. In response to that caution the applicant replied “I have rowed with somebody. For fear that someone may take revenge, I got the gun for protection. I have no intention of hurting anybody.\". The significance of that reply was, obviously, that it showed that the applicant knew that the package contained the firearm even before it had been opened.", "zh-HK": "警務人員一找到那用布包着的東西，尚未打開它看見裏面的手槍，便拘捕和警誡申請人。申請人在警誡之下回答：“我和某人爭吵。我怕有人會尋仇，所以用槍保護自己。我無意傷害任何人。”這一段回答的重要性顯然是它顯示那包東西還未打開，申請人已經知道裏面藏有手槍。" } }, { "doc_id": 138, "seg_id": 6, "translation": { "en": "In due course, the applicant was interviewed twice under caution, one interview taking place between 3.02 a.m. and 3.21 a.m. the following morning, 5 February 2009, and the second taking place between 8.41 p.m. and 9.20 p.m. that same evening. In the course of each of those interviews the applicant made unequivocal admissions describing, amongst other things, how he had purchased the firearm for 3000 Remnimbi from a named person in the mainland; that person had subsequently delivered the firearm to his vehicle in Hong Kong whereafter he, the applicant, had concealed it inside the valance; he had made payment for it.", "zh-HK": "其後，申請人兩次在警誡之下與警務人員會面。第一次會面在翌日，即2009年2月5日，凌晨3時零2分至3時21分進行。第二次會面在同日晚上8時41分至9時20分進行。每一次會面進行期間，申請人都毫不含糊地承認和描述一些事情，包括他如何在內地從一個指名人士以3000元人民幣買了那手槍；後來那人把手槍送遞到香港，到申請人的汽車；然後申請人把它收藏在裙緣裏；及申請人已支付買槍的費用。" } }, { "doc_id": 138, "seg_id": 7, "translation": { "en": "The applicant made a series of admissions pursuant to the provisions of s. 65C of the Criminal Procedure Ordinance as a result of which, as the judge correctly identified to the jury, the issue which fell for determination by the jury was whether they were satisfied that the applicant was in possession of the firearm, whether he had known that it was hidden inside his motor vehicle when he drove it to the point where it was searched. The judge was at pains to point out to the jury that the evidence in this regard came solely from the applicant's response to the caution and the two subsequent video recorded interviews and that the jury need to be satisfied of the credibility and reliability of the prosecution witnesses who testified in regard to the events surrounding those admissions.", "zh-HK": "申請人根據《刑事訴訟程序條例》第65C條承認了某些事情; 因此，正如主審法官正確地向陪審團解說，陪審團須要裁定的爭論點是他們是否信納申請人管有該手槍，和申請人把他的汽車駛到被警務人員搜查的地點時他是否知道該手槍藏在車內。主審法官詳盡地向陪審團指出這方面的證據全部來自申請人在警誡之下的回答，和其後進行的兩次錄影會面，以及陪審團須要決定各控方證人所說的和申請人作出的承認有關的事情的證供是否可信可靠。" } }, { "doc_id": 138, "seg_id": 8, "translation": { "en": "It was put on behalf of the applicant, who elected not to give evidence, that he had not given the reply to the caution which was attributed to him but that he had simply signed what had been written down and that, whilst he had given the answers recorded in the two records of interview, those answers were untruthful. It was suggested on his behalf to the relevant prosecution witnesses that the applicant had behaved in this manner because he had been assaulted and threatened by police officers and had been the victim of oppressive conduct by them. He had earlier challenged the admissibility of the reply to the caution and the records of interview during voir dire proceedings: the judge had ruled them each to be admissible.", "zh-HK": "申請人選擇不作證。代表他的大律師指出他沒有在警誡之下作出據稱是他作出的回答，他只是在已經寫下的文字旁簽名；雖然他有作出記錄在那兩份會面紀錄的回答，但那些回答不是真話。代表他的大律師向有關的控方證人指出申請人是因為警務人員毆打和恐嚇他，及對他採用壓逼性手段，他才作出那些回答。申請人在審訊的較早階段曾反對控方把他在警誡之下的回答和他的會面紀錄呈堂。主審法官為此進行了裁定可否把它們接納為證物的程序，結果是主審法官裁定把它們接納為證物。" } }, { "doc_id": 138, "seg_id": 9, "translation": { "en": "The judge repeatedly emphasised to the jurors the necessity of their being able to accept the evidence of the prosecution witnesses in regard to the circumstances of the making of the admissions by the applicant. Plainly, by their verdict, they were satisfied by that evidence.", "zh-HK": "主審法官已經重複向陪審團強調他們必須決定是否可以相信各控方證人所說的關於申請人在甚麼情況下承認有關事情的證供。既然陪審團的裁決是申請人罪名成立，他們顯然是信納各控方證人所說的關於這方面的證供。" } }, { "doc_id": 138, "seg_id": 10, "translation": { "en": "The applicant was unrepresented before us. He had submitted a number of separate letters, together with some supporting documentation, in which he identified his complaints. Some are repetitive but there appeared to be 15 discrete complaints which may be distilled, as the respondent had done, into seven discrete areas.", "zh-HK": "申請人在我等席前是沒有律師代表。他分開數次呈交了幾封信，連同一些有關文件。他在信裏說出他的申訴。有些說話是重複的，但看來可以從他所說歸納出15點申訴；而這15點可以，如答辯人所做的，分為7方面。" } }, { "doc_id": 138, "seg_id": 11, "translation": { "en": "We largely adopt that summary as follows:", "zh-HK": "我等大致上採納這個分類，現在把這7方面列出如下：" } }, { "doc_id": 138, "seg_id": 12, "translation": { "en": "原審法官犯錯，因為沒有就申請人的精神狀況給予陪審團適當和足夠的指示；\t1.\tthe judge erred in failing to give proper and adequate directions to the jury on the applicant's mental state;", "zh-HK": "1." } }, { "doc_id": 138, "seg_id": 13, "translation": { "en": "原審法官犯錯，因為沒有就如何處理辯方的專家證據給予陪審團正確指示；\t2.\tthe judge erred in failing to direct the jury correctly on their approach towards defence expert evidence;", "zh-HK": "2." } }, { "doc_id": 138, "seg_id": 14, "translation": { "en": "沒有科學鑑證方面的證據證明申請人曾管有或接觸該手槍；\t3.\tthere was no forensic evidence to prove that the applicant had been in the possession of or contact with the firearm;", "zh-HK": "3." } }, { "doc_id": 138, "seg_id": 15, "translation": { "en": "第二辯方證人以專家身分作證，但竟然不知道“腦癇症”這個病名；因該證人的“疏忽或刻意隱瞞”而導致申請人被誤判有罪；\t4.\tthe second defence witness who testified as an expert witness was unaware of the term “epilepsy\" as a result of which the applicant was wrongly convicted due to the “negligence or cover-up\" of this witness;", "zh-HK": "4." } }, { "doc_id": 138, "seg_id": 16, "translation": { "en": "主審法官犯錯，因為沒有就“管有”的定義給予適當指示；\t5.\tthe judge erred in failing to give proper directions on the definition of “possession\";", "zh-HK": "5." } }, { "doc_id": 138, "seg_id": 17, "translation": { "en": "主審法官犯錯，因為他花了太多時間用“假設性的用詞去解釋及分析案中的種種問題”，令到陪審團沒有思考的空間，以至實際上簒奪了陪審團的角色；及\t6.\tthe judge erred by spending too much time on “assumptive wordings to explain and analyse various issues in case\" thereby leaving no room for the jury to think and, in effect, usurping the role of the jury; and", "zh-HK": "6." } }, { "doc_id": 138, "seg_id": 18, "translation": { "en": "主審法官犯錯，因為他無視這個情況，即如果第一次會面時所作的承認完全屬實，就無需進行第二次會面。\t7.\tthe judge erred in ignoring the fact that had the admissions contained in the first interview been entirely true it would have been unnecessary to hold a second interview.", "zh-HK": "7." } }, { "doc_id": 138, "seg_id": 19, "translation": { "en": "There was no substance in any of the grounds: we deal, briefly, with each in turn.", "zh-HK": "上述各理由沒有任何一個有實質。我等會簡略地逐一處理。" } }, { "doc_id": 138, "seg_id": 20, "translation": { "en": "Ground 1: failure to properly and adequately direct on the applicant's mental state.", "zh-HK": "理由1﹕沒有就申請人的精神狀況給予適當和足夠的指示。" } }, { "doc_id": 138, "seg_id": 21, "translation": { "en": "The two medical witnesses were called on behalf of the appellant. One, a neurosurgeon, added little to the evidence testifying simply in regard to a concussion syndrome which he had diagnosed after a traffic accident in which the appellant had been involved in 2006. The judge reminded the jury that the evidence of this witness was that sometimes someone with this syndrome suffered poor concentration and might also become depressed. The judge directly and correctly told the jury that should they should take these factors into account when deciding where to place on the applicant’s admissions.", "zh-HK": "有關的兩名醫生證人是傳召來為申請人作證的。其中一名是神經外科醫生。他的證供沒有提供多少額外的資料。他的證供只是關於申請人的腦震盪綜合症；申請人在2006年遭到交通意外後，他診斷申請人患上此症。主審法官提醒陪審團該證人的證供是說有時患上此症的病人會注意力難以集中，而且可能會抑鬱。主審法官直接和正確地告訴陪審團他們決定如何處理申請人作出的承認時，須要把上述因素考慮在內。" } }, { "doc_id": 138, "seg_id": 22, "translation": { "en": "The evidence of the second witness, a psychiatrist, was to the effect that he had been treating the applicant since 2001 for a bipolar affective disorder. He described this as a disorder which results in extremes of emotion which the judge drew to the attention of the jury. The judge also reminded the jury that they had seen the applicant's behaviour during the video recorded interviews and were able to assess for themselves whether the disorder described by the doctor manifested itself during those interviews or whether, given the existence of that disorder, they formed the view that the interviews were oppressive or might have affected the accuracy and truthfulness of the applicant’s answers. He told them that they \"... would no doubt give the doctors’ evidence very close consideration\".", "zh-HK": "第二名證人是精神科醫生。他的證供大意是說他從2001年起便治療申請人的躁狂抑鬱症。他描述這是一種精神失調，病人會有極端的情緒反應，而主審法官已提醒陪審團注意這點。主審法官對陪審團說他們已看過申請人在錄影會面時的表現，可以自行衡量申請人在會面時有沒有出現該醫生所說的精神失調；或者，鑑於申請人有這樣的失調，他們會不會認為會面具有壓逼性，或者會不會有可能影響申請人的回答的準確性和真實性。主審法官對陪審團說他們“…無疑須要很詳細考慮兩名醫生的證供”。" } }, { "doc_id": 138, "seg_id": 23, "translation": { "en": "The judge dealt with this issue fully and left the jury under no misapprehension as to how they should have regard to this evidence.", "zh-HK": "主審法官已就這個爭論點給予充分指示，沒有使陪審團對應該如何考慮這方面的證供有任何誤解。" } }, { "doc_id": 138, "seg_id": 24, "translation": { "en": "Ground 2: failure to direct the jury correctly on their approach towards expert defence evidence.", "zh-HK": "理由2︰沒有就如何處理辯方的專家證據給予陪審團正確指示。" } }, { "doc_id": 138, "seg_id": 25, "translation": { "en": "To a large extent, this was an extension of Ground 1. The judge dealt with the jury's approach to expert evidence in general in standard terms. In any event, the applicant’s medical state was not disputed by the prosecution: its only relevance was whether it impacted upon the applicant’s state of mind and whether it had any effect on his participation in the interviews. We have already dealt with this issue.", "zh-HK": "這個理由在很大程度上是理由1的延伸。主審法官以標準詞句給予陪審團關於如何處理專家證據的一般指示。無論如何，控方沒有質疑申請人的健康狀況。申請人的健康狀況與本案唯一有關聯的是他的健康狀況有沒有影響他的思想狀態，及在申請人參與會面時對他有沒有任何影響。我等已經處理這個爭論點。" } }, { "doc_id": 138, "seg_id": 26, "translation": { "en": "Ground 3: no forensic evidence to prove that the applicant had been in possession of or contact with the firearm.", "zh-HK": "理由3︰沒有科學鑑證方面的證據證明申請人曾管有或接觸該手槍。" } }, { "doc_id": 138, "seg_id": 27, "translation": { "en": "Insofar as possession of the firearm was concerned, the judge correctly and fully directed the jury as to the elements about which they were to be sure before they were able to find that the applicant had been in possession of it. The mere fact that the appellant was not shown to physically have contacted the firearm does not prevent the appellant having been in possession of it. The absence of any such evidence was entirely neutral.", "zh-HK": "在管有該手槍方面，主審法官已經正確和充分地指示陪審團他們須要肯定案情具備哪些元素才可以裁定申請人管有該手槍。沒有證據證明申請人實際上接觸過該手槍，僅憑這一點並不表示申請人未曾管有該手槍。缺乏這方面的證據，這點完全是中性的。" } }, { "doc_id": 138, "seg_id": 28, "translation": { "en": "Ground 4: the second defence witness who testified as an expert witness was unaware of the term “epilepsy\" as a result of which the applicant was wrongly convicted due to the “negligence or cover-up\" of this witness.", "zh-HK": "理由4︰第二辯方證人以專家身分作證，但竟然不知道“腦癇症”這個病名；因該證人的“疏忽或刻意隱瞞”而導致申請人被誤判有罪。" } }, { "doc_id": 138, "seg_id": 29, "translation": { "en": "We had some difficulty with what was meant by this complaint. It seemed to stem from the fact that, attached to one of the applicant’s letters, was a document from Correctional Services Department which appeared to suggest that he has been assigned to a \"Cutting\" working party for a \"Reason\" against which appeared the word \"Epilepsy\". This was not an issue that ever saw the light of day at trial.", "zh-HK": "我等對應該如何理解這個申訴的含意，覺得有點困難。這個申訴的來源似乎是這樣的︰申請人的其中一封來信夾付一份懲教署的文件。看來該文件是說被告人被編派到的工作期數（Working Party）是做“Cutting”（切割），而這樣編派是有“原因”（Reason）的。在“原因”旁有“癲癇” （Epilepsy）這個詞。審訊時這個爭論點沒有提出過。" } }, { "doc_id": 138, "seg_id": 30, "translation": { "en": "Ground 5: failure give proper directions on the definition of “possession\".", "zh-HK": "理由5︰沒有就“管有”的定義給予適當指示。" } }, { "doc_id": 138, "seg_id": 31, "translation": { "en": "As we noted in respect of Ground 3, the judge gave clear directions regarding the aspects about which the jury needed to be satisfied before they were able to conclude that the applicant had been in possession of the firearm. He did so upon more than one occasion. Those directions were couched in standard terms assisted by readily comprehensible illustrations.", "zh-HK": "我等在處理理由3時已指出主審法官已經給予清晰指示，說明有哪些方面陪審團是須要信納的才可以裁定申請人管有該手槍。主審法官不只一次給予這方面的指示。他以標準詞句表達這些指示，並提供容易明白的例子以幫助說明。" } }, { "doc_id": 138, "seg_id": 32, "translation": { "en": "As noted in §4 above the applicant’s response to the caution at the scene at the time of arrest established his knowledge of the presence of the firearm inside the cloths: that disposed of the applicant’s oral submissions before us on the point of possession and his reference to the decision in HKSAR v JIM Fai CACC383/2002 (unreported, 15 April 2003).", "zh-HK": "上文第4段已經敍述申請人在現場被捕時在警誡之下的回答證明他知道該手槍是包在布裏的。這就解決了申請人在我等席前所作關於管有的口頭陳詞，和他引述的香港特別行政區 訴 詹輝 刑事上訴2002年第383號（沒有收錄在案例集，2003年4月15日）" } }, { "doc_id": 138, "seg_id": 33, "translation": { "en": "Ground 6: too many “assumptive wordings” used by the judge thus leaving no room for the jury to think and, in effect, usurping the role of the jury.", "zh-HK": "理由6︰主審法官用了太多“假設性的用詞”，令到陪審團沒有思考的空間，以至實際上篡奪了陪審團的角色。" } }, { "doc_id": 138, "seg_id": 34, "translation": { "en": "The judge made it quite clear that matters which fell within the domain of the jury were to be decided by the jurors alone. As is the practice of some judges, he illustrated particular points by way of analogy in order to facilitate comprehension of the point he was seeking to make. This is a permissible route for a judge to take. None of the illustrations by the judge was in anyway inappropriate.", "zh-HK": "主審法官已經清楚說明屬於陪審團範疇的事情應該只由陪審團決定。他的做法是有些法官都採取的，就是用比喻的方式說明他提出的某幾點，以幫助陪審團明瞭他想說的是甚麼。法官是可以這樣做的。他舉出的例子沒有一個有任何不適當之處。" } }, { "doc_id": 138, "seg_id": 35, "translation": { "en": "Ground 7: had the admissions contained in the first interview been true the second interview would have been unnecessary.", "zh-HK": "理由7︰如果第一次會面時所作的承認屬實，就無需進行第二次會面。" } }, { "doc_id": 138, "seg_id": 36, "translation": { "en": "The police were entitled, if they determined it to be necessary, to seek to interview the applicant further. The applicant, equally, was entitled to decline if he did not wish to participate in the second interview. He chose to do so. It is quite clear that additional information was obtained by the police during the second interview which had not been made available to them during the first.", "zh-HK": "如果警方認為有此需要，他們是有權嘗試和申請人進行再次會面。如果申請人不想參與第二次會面，他同樣有權拒絕會面。申請人選擇參與第二次會面。第二次會面裏，警方明顯是取得進一步資料，而這些資料是第一次會面時他們沒有得到的。" } }, { "doc_id": 138, "seg_id": 37, "translation": { "en": "We were satisfied that there was no merit in any of the applicant’s grounds of appeal. The summing up was fair and well-balanced. The issue which the jury had to determine was straightforward. It was not reasonably subject to any criticism. Consequently the application was dismissed.", "zh-HK": "我等信納申請人的上訴理由沒有任何一個有道理。主審法官的案情總結是公平和適當地平衡了控辯雙方的論據和論點。陪審團須要決定的爭論點是簡明直接的。主審法官處理這個爭論點的方式沒有可以受到合理批評之處；因此，我等駁回申請。" } }, { "doc_id": 138, "seg_id": 38, "translation": { "en": "Mr Ira Lui, Senior Public Prosecutor, Department of Justice, for Respondent.", "zh-HK": "答辯人︰由律政司高級檢控官雷芷茗先生代表。" } }, { "doc_id": 138, "seg_id": 39, "translation": { "en": "Applicant in person.", "zh-HK": "申請人︰無律師代表。" } }, { "doc_id": 139, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the Reasons for Judgment of the Court):", "zh-HK": "高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 139, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 139, "seg_id": 3, "translation": { "en": "On 30 November 2016, the applicant (Wong Chun Hin) appeared before Li J (the trial judge) and pleaded guilty to one charge of conspiracy to traffic in a dangerous drug. He was then sentenced to 17 years and 7 months’ imprisonment. The applicant applied for leave to appeal against sentence. At the end of the hearing, we granted the applicant leave to appeal against sentence and allowed his appeal. The 17 years and 7 months’ imprisonment imposed on the applicant was reduced to one of 16 years and 7 months. Below are the reasons for our judgment.", "zh-HK": "2016年11月30日，申請人（王俊軒）在高等法‍院原訟法庭法官李瀚良（原審法官）席前承認了一項串謀販運危險藥物罪後，被判處入獄17年7個月。申請人不服判刑，並提‍出上訴許可申請，要求獲准就判刑上訴。經聆訊後，本庭批准申請人就判刑上訴，並裁定其上訴得直。本庭將申請人被判的17年7個月刑期減至16年7個月。以下是本庭的判案理由。" } }, { "doc_id": 139, "seg_id": 4, "translation": { "en": "The Facts", "zh-HK": "案情" } }, { "doc_id": 139, "seg_id": 5, "translation": { "en": "On 28 April 2015, police officers intercepted a New Territories taxi KK9691 in the car park of Sun Kong Hotel, Yuen Long. At the time, apart from the driver, Tse Tung Sing [transliteration] (Tse) was in the front passenger seat of KK9691, the other passenger was in the rear seat, and next to him/her was a cardboard box containing a carton for a bread maker and other miscellaneous items. Inside the carton containing the bread maker, there was another carton containing two packs of crystalline solid of “ice” with a street value of around $430,000. The total weight of the crystalline solid in question was 997 grammes containing 976 grammes of “ice”. The English words “Refined Chinese Tea” were printed on the outside of the carton containing the “ice” in question.", "zh-HK": "2015年4月28日，警員在元朗新港酒店的停車場截停一輛新界的士KK9691。當時，除了司機外，謝東升（謝）坐在KK9691前排乘客位，另一名乘客坐在後座，其身旁有一個紙皮箱，內載有一個麵包機的紙箱和其他雜物。載有麵包機的紙箱內再有一個紙盒，內有兩包巿價約為43萬元的“冰‍毒”結晶體。該批結晶體共重997克，內含共976克“冰毒”。載有該批“冰毒”的紙盒外，印有“Refined Chinese Tea”的英‍文字。" } }, { "doc_id": 139, "seg_id": 6, "translation": { "en": "Tse admitted that out of momentary greed, he agreed to send out the “ice” by SF Express for “Lok Chai” [transliteration] for a reward of a few thousand dollars. Afterwards, Tse clarified that he, in fact, was assisting the applicant in drug trafficking. He said after he had come to know the applicant in early March 2015, the applicant indicated that he could give him a job that would earn him quick money but would involve dangerous drugs. Afterwards, on 27 April 2015, Tse went to a room in Sun Kong Hotel rented by another defendant. Following the applicant’s instructions by phone, Tse first packed the “ice” in question in a carton, left the carton in the hotel room and then returned home. The following day, Tse asked a friend to go with him to the hotel to retrieve the carton containing the “ice” intending to send it to Australia by post.", "zh-HK": "謝承認自己因一時貪心同意替“樂仔”透過“順豐速運”將“冰毒”寄出，以取得數千元的報酬。其後，謝澄清他其實是協助申請人“販毒”。他指在2015‍年3月初認識申請人後，申請人表示可以給他賺快錢但涉及毒‍品的工作。其後在2015年4月27日，謝前往另一名被告人租用的‍新‍港酒店房間，先按申請人透過電話的指示，將涉案的“冰‍毒”包裹在紙箱內，並將紙箱留在酒店房間，然後回‍家。翌日，謝叫一名朋友和他一起前往酒店取回載有“冰‍毒”的紙箱，並打算將該紙箱寄往澳洲。" } }, { "doc_id": 139, "seg_id": 7, "translation": { "en": "Under arrest and caution, the applicant admitted that he “told the young chap to send the ‘ice’ overseas by post”. In a video-recorded interview with police officers, the applicant further admitted that he knew Tse, and that in the incident he was the one who gave Tse instructions for dealing with the dangerous drugs. The applicant said that the “ice” in question came from “Fai Chai” [transliteration]. On Fai Chai’s instructions, he told Tse to fetch and pack the dangerous drugs and further send them to Australia by post. The applicant said Tse and he travelled by car to Sun Kong Hotel, and he intended to instruct Tse to rent a room. However, as Tse was under the age of 18, he had to get another defendant to rent a room. The applicant picked up that defendant, took him to Sun Kong Hotel and gave him the money to rent a room. After that defendant had succeeded in renting a room, the applicant told Tse to pack the “ice” in the room and put the packed dangerous drugs in a carton to be sent to Australia by post the following day.", "zh-HK": "申請人被捕後及在警誡下承認他是“叫條「𡃁仔」寄啲冰毒去外國嘅”。申請人和警員進行錄影會面時，進一步承‍認他認識謝，亦承認在事件中他是向謝發出處理毒品指示的人。申請人表示涉案的“冰毒”源自“輝仔”，而他是按“輝仔”的指‍示，吩咐謝去拿取毒品及將毒品包裝，再郵寄至澳‍洲。申請人指他和謝一起乘車前往新港酒店，並打算指示謝租‍用房間，但因為謝未滿18歲，故要找另一名被告租用房‍間。申請人將該名被告人接載到新港酒店，並給他金錢租‍用房間。該名被‍告人成功租房後，申請人便吩咐謝在房間包裝“冰毒”，並將包裝好的毒品放在紙箱內，以便在翌日寄往澳洲。" } }, { "doc_id": 139, "seg_id": 8, "translation": { "en": "At the time of the offence, Tse was 17 years old, educated up to Form 1, not a drug addict and with no criminal record. The applicant was 20 years old with 9 criminal convictions including serious offences of possession of dangerous drugs, offering to traffic in a dangerous drug, wounding with intent, etc. He had been sentenced to imprisonment three times. In mitigation, it was admitted that the applicant was a drug addict. It was accepted that the applicant committed the offence of offering to traffic in a dangerous drug whilst he was on bail for the present case. In fact, the applicant committed the offence in the present case whilst he was on bail for offering to traffic in a dangerous drug offence.", "zh-HK": "案發時，謝17‍歲，受教育至中一，沒有毒癮，亦沒有犯罪記錄；而申請人則是20歲，有9次犯罪記錄，包括藏‍毒、提出“販毒”、有意圖傷人等嚴重罪行，並曾3次被判處監‍禁。求情時，辯方承認申請人有毒癮，亦同意申請人是在本案保釋期間干犯該宗提出“販毒”罪行。但事實上，申請人是在干犯該宗提出“販毒”案保釋期間干犯本案。" } }, { "doc_id": 139, "seg_id": 9, "translation": { "en": "Mitigation", "zh-HK": "求情理由" } }, { "doc_id": 139, "seg_id": 10, "translation": { "en": "It was submitted that at the time of the offence, the applicant was young, under the age of 21, so he could be easily influenced. It was claimed that the mastermind was someone else, and the applicant was used by the other mastermind for drug trafficking activities.", "zh-HK": "辯方指案發時，申請人年輕，不足21歲，故容易受人唆擺。辯方聲稱案件的主謀另有其人，而申請人是被其他主謀利用進行“販毒”活動。" } }, { "doc_id": 139, "seg_id": 11, "translation": { "en": "It was accepted that the case involved aggravating factors like international crime and the use of a minor to commit crime. However, the defence was of the view that the level of enhancement should not be too high for the reason that the applicant was also used by others to commit the crime.", "zh-HK": "辯方同意案件涉及跨國犯案和利用未成年人‍士犯案等加重罪責的因素，但認為加刑幅度不應過高，原因是申請人亦是被人利用犯案。" } }, { "doc_id": 139, "seg_id": 12, "translation": { "en": "Decision of the trial judge", "zh-HK": "原審法官的裁決" } }, { "doc_id": 139, "seg_id": 13, "translation": { "en": "In accordance with the sentencing guidelines set down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the trial judge, on the basis of the trafficking in 976 grammes of “ice”, considered the starting point to be 21 years and 11 months. The trial judge considered that the two factors of an international crime and use of a minor to commit crime should enhance the sentence by 1 year and 6 months and 3 years respectively. In the result, the total starting point applicable to the applicant was 26 years and 5 months. The trial judge reduced the sentence by one third to 17 years and 7 months on account of the applicant’s guilty plea.", "zh-HK": "原審法官根據HKSAR v Tam Yi Chun [2014] 3 HKLRD 691案定下的判刑指引，認為以販運976克“冰‍毒”為基礎，量刑基準應為21年11個月。原審法官認‍為‍跨國犯案和利用未成年人士犯案這兩項因素應分別加刑1‍年6個月和3年，故適用於申請人的總量刑基準為26年5‍個月。原審法官因申請人認罪而將刑期扣減三分一至17‍年7個月。" } }, { "doc_id": 139, "seg_id": 14, "translation": { "en": "Ground of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 139, "seg_id": 15, "translation": { "en": "Mr Bernard Chung, counsel for the applicant, agreed that it was correct to adopt the starting point of 21 years and 11 months and to enhance the sentence by one and a half years for an international crime. However, the further enhancement of 3 years by the trial judge because of the use of a minor to commit crime was too high. That resulted in a final sentence which was manifestly excessive. In support of his stance, Mr Chung cited HKSAR v Chan Ka Shing [2012] 2 HKLRD 214 and HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017. It was emphasized that the four and a half years’ enhancement adopted by the trial judge in respect of the two aggravating factors, at a level of enhancement of 21%, was too high. Given that the dangerous drug in question was “ice” of less than 1,000 grammes, the total starting point of 26 years and 5 months was too severe. Mr Chung asked this Court to reduce the applicant’s sentence and to set the guideline for the level of enhancement for the use of a minor to commit crime.", "zh-HK": "代表申請人的鍾偉強大律師同意21年11個月的量刑基準和因跨國犯案加刑一年半正確，但認為原審法官因申請人利用未成年人士犯案這因素而再加的3年刑期屬過高，而最終判刑亦因此屬明顯過重。鍾大律師援引香港特別行政區訴陳嘉成 [2012] 2 HKLRD 214、HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017等案支持他的立場。鍾大律師強調原審法官以兩項加刑因素而加刑4年半，幅度達21%，屬過高，而以涉案毒品不足1,000克“冰毒”， 26年5個月的總量刑基準亦是過份嚴苛。鍾大律師要求本庭扣減申請人的刑期及就利用未成年人犯案這因素的加刑幅度作出指引。" } }, { "doc_id": 139, "seg_id": 16, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 139, "seg_id": 17, "translation": { "en": "Section 56A of Dangerous Drugs Ordinance, Cap 134 of the Laws of Hong Kong, expressly provides that use of a minor in drug trafficking entitles the court to pass a more severe sentence. The provision, however, does not specify the level of enhancement of sentence.", "zh-HK": "香港法例第134章《危險藥物條例》第56A條訂明任何人藉未成年‍人“販毒”時，法庭可以判處更重的刑罰，但條例沒有指‍明加刑的幅度。" } }, { "doc_id": 139, "seg_id": 18, "translation": { "en": "This Court should first point out that use of a minor in drug trafficking is an extremely evil act for the reason that it would result in the conviction, long-term imprisonment and loss of future prospects of the mentally immature minor who is being used. A robust approach must be taken against such an evil act to protect minors from being harmed.", "zh-HK": "本庭應先指出，利用未成年人士“販毒”是極為邪惡的行為，原因是那些被利用心智未成熟的未成年人士會因此而被定罪及面對長期監禁，亦會前途盡失。法庭必須對該些邪惡行為迎‍頭痛擊，避免未成年人士受害。" } }, { "doc_id": 139, "seg_id": 19, "translation": { "en": "In considering the range of enhancement, the court is required to take account of the particular circumstances of the individual case. The factual background relating to the enhancement of sentence in respect of this factor can vary to a great extent, and therefore it is not appropriate for the court to give explicit guidelines for the levels of enhancement. As a drug trafficking offence itself is going to result in an extremely long sentence, restraint should be exercised on the range of enhancement arising from other aggravating factors in order to avoid an overly severe sentence.", "zh-HK": "在考慮加刑幅度時，法庭須將個別案件的特殊因‍素考慮在內。和該加刑因素有關的事實背景可以差別甚大，故法庭不適宜就加刑幅度作出明確指引。但考慮到“販毒”罪行本身已會導致極長的刑期，其他加刑因素所導致的加刑幅度應有所約束，避免過度嚴苛的刑期。" } }, { "doc_id": 139, "seg_id": 20, "translation": { "en": "At the time of the offence, the applicant, who was under the age of 21, was still young. In so far as the background of the case is concerned, it was highly likely that he was also used by others to commit the crime. If in the present case the applicant’s sentence is enhanced by 3 years because of his using a minor in drug trafficking, then the enhancement in sentence given to a mastermind of a drug trafficking syndicate using minors in drug trafficking may have to be many times more.", "zh-HK": "案發時，申請人不足21歲，仍屬年輕。以案件的背景而言，他極可能亦是被他人利用而犯案。假若在本案因申請人利用未成年人士“販毒”，而將其刑期增加3‍年，則“販毒”集團的頭子利用眾多未成年人士“販毒”可導致的加刑幅度可以是以倍計。" } }, { "doc_id": 139, "seg_id": 21, "translation": { "en": "In our view, such a way to deal with the matter is questionable. We reiterate that in Chan Ka Shing the Court of Appeal has stated as follows:", "zh-HK": "本庭認為上述處理方法有可相榷之處。本庭重申上訴法庭在陳嘉成案作出過以下的表述：" } }, { "doc_id": 139, "seg_id": 22, "translation": { "en": "“Drug trafficking is of course a very serious offence; no offender should get off lightly. Using a minor in drug trafficking is even more heinous. Anyone would find the crime of drug trafficking abominable; however, when passing or enhancing the sentence, the court has still to exercise restraint to avoid increasing the sentence without limit, thus causing confusion and unfairness.”", "zh-HK": "“販運毒品，當然是極為嚴重的罪行，犯案者都不應獲輕判。利用未成年人士販運毒品更屬罪加一等。任何人對販毒罪行都會感到深惡痛絕，但法庭在判刑及加刑時，仍須有所約束，避免判刑無限度地提升，造成混亂及不公。”" } }, { "doc_id": 139, "seg_id": 23, "translation": { "en": "We reiterate that a serious drug trafficking offence will itself result in an extremely long term of imprisonment. If the starting point taken for sentence is increased substantially due to other aggravating factors, the ultimate sentence will cause a defendant, in particular a young one, to face an overly severe sentence.", "zh-HK": "本庭重申嚴重“販毒”罪行本身已會導致極長的監禁年期。如再因其他加重罪責因素而將量刑基準大幅度增加，則最終的判刑會導致被告人，特別是年輕的被告人，要面對過份嚴苛的判刑。" } }, { "doc_id": 139, "seg_id": 24, "translation": { "en": "Having considered the incident from the above viewpoint, we agreed that the enhancement of 3 years imposed on the applicant due to his using a minor in drug trafficking was too high, particularly when the starting point taken for sentence was already 21 years and 11 months, and the sentence was also increased by 1 year and 6 months due to the cross-border element. In our view, in so far as the background of the present case is concerned, an enhancement of 3 years in the total sentence is sufficient to reflect the two aggravating factors, namely the cross-border element and the use of a minor in drug trafficking. We consider an enhancement of 3 years of the total sentence (about 14% of the starting point), due to those two aggravating factors, to be appropriate.", "zh-HK": "從以上角度來考慮事件，本庭同意申請人因利用未‍成年人士“販毒”而要面對的3年加刑屬過高，特別是針對申請人的量刑基準已經是21年11個月，而刑期亦因跨境犯案這因素而提升了1年6個月。本庭認為以本案的背景而言，3年的總刑期加幅已足以反映跨境犯案和利用未成年人士“販毒”這兩項加刑因素。本庭認為該兩項加刑因素導致的三年總刑期加幅（約為量刑基準的14%）是合適的。" } }, { "doc_id": 139, "seg_id": 25, "translation": { "en": "Accordingly, the total starting point taken for the sentence applicable to the applicant should be 24 years and 11 months. The applicant entered a timely plea of guilty and was entitled to a one-third discount on the sentence he would otherwise receive. The proper sentence should be 16 years and 7 months.", "zh-HK": "因此，適用於申請人的總量刑基準應為24年11個月。申請人適時認罪理應取得三分一的刑期扣減，其適當的判刑應為16年7個月。" } }, { "doc_id": 139, "seg_id": 26, "translation": { "en": "We therefore granted the applicant leave to appeal against sentence. We allowed his appeal and reduced his sentence from 17 years and 7 months to 16 years and 7 months.", "zh-HK": "因此，本庭批准申請人就刑期上訴。本庭裁定申請人上訴得直，並將其判刑由17年7個月減至16年7個月。" } }, { "doc_id": 139, "seg_id": 27, "translation": { "en": "Bernard Chung, instructed by K. B. Chau & Co., Solicitors, assigned by the Legal Aid Department, for the applicant", "zh-HK": "答辯人：由律政司高級檢控官黃澄代表。" } }, { "doc_id": 139, "seg_id": 28, "translation": { "en": "Lilly Wong, Senior Public Prosecutor, of the Department of Justice, for the respondent", "zh-HK": "申請人：由法律援助署委派周啟邦律師事務所轉聘大律師鍾偉強代表。" } }, { "doc_id": 140, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the judgment of the Court):", "zh-HK": "高等法院上訴法庭法官張澤祐頒發上訴法庭判案書：" } }, { "doc_id": 140, "seg_id": 2, "translation": { "en": "Appeal against conviction", "zh-HK": "定罪上訴" } }, { "doc_id": 140, "seg_id": 3, "translation": { "en": "The applicant appeared before the Court of First Instance on one count of trafficking in a dangerous drug. It was alleged that he unlawfully trafficked in 279.09 grammes of a mixture containing 155.01 grammes of heroin hydrochloride.", "zh-HK": "申請人在高等法院原訟法庭被控一項販運危險藥物罪，即非法販運內含 155.01 克海洛英鹽酸鹽的 279.09 克混合劑。" } }, { "doc_id": 140, "seg_id": 4, "translation": { "en": "Following a trial before Deputy Judge Pang and a jury, the applicant was convicted and sentenced to 10 ½ years’ imprisonment.", "zh-HK": "經原訟法庭暫委法官彭偉昌與陪審團審訊後，申請人被裁定罪名成立，判監 10 年半。" } }, { "doc_id": 140, "seg_id": 5, "translation": { "en": "The applicant now seeks leave to appeal against conviction.", "zh-HK": "申請人不服定罪，現申請許可對定罪提出上訴。" } }, { "doc_id": 140, "seg_id": 6, "translation": { "en": "The prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 140, "seg_id": 7, "translation": { "en": "On 8 August 2001, police officers arrived at premises where the applicant resided (“the premises”). At that time, the applicant was alone inside the premises. Having shown a search warrant to the applicant, the officers conducted a search inside the premises and found heroin and paraphernalia, including:", "zh-HK": "2001 年 8 月 8 日，警員到達申請人居住的單位 (“該單位”)。當時該單位內只有申請人。警員向他出示搜查令後，在該單位進行搜查，並搜出海洛英及有關的物品，包括 ：" } }, { "doc_id": 140, "seg_id": 8, "translation": { "en": "6 plastic boxes in the kitchen, containing a large amount of white powder being an additive commonly found in mixtures of heroin hydrochloride;", "zh-HK": "在廚房搜出 6 個膠箱內載著大量白色粉末，屬於海洛英鹽酸鹽混含物裡常見的添加劑；" } }, { "doc_id": 140, "seg_id": 9, "translation": { "en": "a black plastic bag under the stove in the kitchen, containing 13 small packets of heroin;", "zh-HK": "在廚房灶底搜出一個黑色膠袋，載有 13 小包海洛英；" } }, { "doc_id": 140, "seg_id": 10, "translation": { "en": "a carton in the living room, in which a Philips box containing a mixer and its components was found; on top of the box was a big packet of white powder being an additive commonly found in mixtures of heroin hydrochloride;", "zh-HK": "在廳內搜出一個紙皮箱，內有一個 Philips 盒裝著一個攪拌機及組件；而盒上有一大包白色粉末，屬於海洛英鹽酸鹽混合物裡常見的添加劑；" } }, { "doc_id": 140, "seg_id": 11, "translation": { "en": "a dark grey paper carrier bag by the side of the carton in (3) above, containing some re-sealable plastic bags of various sizes, white plastic bags, a roll of transparent plastic bags and a stack of 3 small pieces of paper cut out from a newspaper;", "zh-HK": "上述（三）紙箱旁搜出一個深灰色手挽紙袋，載著一些大小不同的可用封口膠袋、白色膠袋、一卷透明膠袋和一疊共 3 張用報紙剪成的小紙塊；" } }, { "doc_id": 140, "seg_id": 12, "translation": { "en": "traces of heroin on the dust screen of the air-conditioner in the premises.", "zh-HK": "該單位內的冷氣機隔塵網上發現有微量海洛英。" } }, { "doc_id": 140, "seg_id": 13, "translation": { "en": "The applicant was the registered tenant of the premises and lived there on his own. On 23 July 2001, he was admitted to hospital. Upon discharge on 3 August 2001, he returned to the premises and continued to live there until the day of the alleged offence. Between 3 August and 8 August 2001, he lived alone at the premises and no one visited him.", "zh-HK": "申請人為該單位的登記住戶，他獨居於該單位內。申請人在 2001 年 7 月 23 日曾入醫院留醫。2001 年 8 月 3 日他出院後返回該單位居住，直至案發當日。在 2001 年 8 月 3 日至 8 月 8 日期間，他是獨居於該單位內，而沒有任何人到訪。" } }, { "doc_id": 140, "seg_id": 14, "translation": { "en": "The applicant’s defence", "zh-HK": "申請人的答辯" } }, { "doc_id": 140, "seg_id": 15, "translation": { "en": "The applicant elected to give evidence in defence. He said that he had been too ill to check the condition of the premises ever since his discharge from the hospital on 3 August 2001, and that he did not notice that the various items found by the police as mentioned above were kept inside the premises. He said he intended to seek medical treatment in Mainland China in March 2001, so he handed the other set of keys to the premises to a man living in his neighbourhood and asked him to pay rent and clean the premises for him. He has not asked that man for the keys back since then.", "zh-HK": "申請人選擇作供答辯，他指由於健康狀況太差，所以在 2001 年 8 月 3 日出院後一直沒有精神察看該單位內的情況，他沒有留意該單位內存放着上述被警員搜出的各項物品。他說在 2001 年 3 月因打算到內地求醫，曾把該單位的另一套鎖匙交給一名男街坊，委託他交租及打掃該單位，但之後一直沒有向該名男街坊索回該套鎖匙。" } }, { "doc_id": 140, "seg_id": 16, "translation": { "en": "This case essentially concerned findings of fact. The applicant called two doctors, who testified that he was suffering from heart disease, tracheal disease and kidney failure. The applicant underwent angioplasty on 27 August 2001. The doctors said his mental condition was not as good as that of ordinary people.", "zh-HK": "本案是一宗涉及事實裁決的案件。申請人傳召兩名醫生作證。他們指申請人患有心臟病、氣管病及腎衰竭。申請人曾在 2001 年 8 月 27 日接受了血管擴張手術。醫生指他的精神狀況比平常人差。" } }, { "doc_id": 140, "seg_id": 17, "translation": { "en": "Looking at the facts as a whole, the jury were entitled to find, on the basis of the prosecution evidence, that the applicant had knowledge of the heroin kept inside the premises and that he was “in possession” of those drugs. The applicant lived alone at the premises, which, according to the evidence, had been used as a drug cutting and packaging centre. Apart from heroin, other items were found in the premises, including additives that were used for mixing with heroin, a mixer and a large number of plastic bags. Those items could all be used for mixing and packaging drugs. Apart from the heroin, other items were all placed in conspicuous places inside the premises. If the jury refused to accept the applicant’s defence, it was open to them to further infer that the applicant possessed the dangerous drugs found inside the premises for the purpose of trafficking.", "zh-HK": "綜觀整件案情，陪審團是可以根據控方提供的證據裁定申請人對該單位內存放的海洛英一事是知情的及是「管有」這些毒品。申請人獨居於該單位內。證據顯示該單位是個毒品稀釋及包裝中心。在該單位除了搜出海洛英外，還搜出其他物品，例如用來混合海洛英的添加劑、攪拌機及大量的膠袋等。該些物品都是可以用作混合及包裝毒品的用途。除了海洛英外，其他的物品都是放在該單位內顯眼的地方。如果陪審團拒絕接納申請人的辯解，他們是可以進一步推斷申請人是管有在該單位內搜出的危險藥品作為販運用途。" } }, { "doc_id": 140, "seg_id": 18, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 140, "seg_id": 19, "translation": { "en": "The applicant raises three grounds of appeal. The first relates to the “lies” direction given by Deputy Judge Pang to the jury. The applicant contends that it was unnecessary to give a “lies” direction and that the direction which the Judge did give was incomplete. The second ground is that the Judge failed to explain clearly the definition of “possession”. The third ground is that the Judge did not clearly explain the definition of “trafficking”.", "zh-HK": "申請人提出的上訴理由有三點。第一是關於彭法官對陪審員作出的「謊言的指引」。申請人指彭法官不必要地向陪審員作出這個指引，而在作出指引時，卻沒有作出一個全面的指引。第二是彭法官沒有清楚解釋「管有」的定義。第三是彭法官沒有清楚解釋「販運」的定義。" } }, { "doc_id": 140, "seg_id": 20, "translation": { "en": "“Lies” Direction", "zh-HK": "謊言的指引" } }, { "doc_id": 140, "seg_id": 21, "translation": { "en": "Generally speaking, a “lies” direction is unnecessary save under certain circumstances. The purpose of such a direction is to make it clear to the jury that even if the defendant has lied, it does not necessarily follow that he is guilty. In HKSAR v. Mo Shiu Shing [1999] 1 HKC 43, this Court pointed out that a “lies” direction has to be given under the following circumstances:", "zh-HK": "一般來說，法官只是在某些程況下才需要向陪審員作出「謊言的指引」。指引的目的是向陪審員清楚說明，就算被告人曾經說謊，也不表示他是有罪的。本庭於毛兆成（譯音）HKSAR v. Mo Shiu Shing [1999] 1 HKC 43 一案中指出在以下的情況下，法庭需要作出「謊言的指引」 ：" } }, { "doc_id": 140, "seg_id": 22, "translation": { "en": "Where the defence relies on an alibi;", "zh-HK": "被告人的答辯理由是他不在罪案現場；" } }, { "doc_id": 140, "seg_id": 23, "translation": { "en": "Where the judge considers it desirable or necessary to suggest that the jury should look for support or corroboration of one piece of evidence from other evidence in the case, and amongst that other evidence draws attention to lies told, or allegedly told, by the defendant;", "zh-HK": "當法官指示陪審團案件必須有佐證去支持控罪，而這些佐證涉及被告人曾經說過的謊言；" } }, { "doc_id": 140, "seg_id": 24, "translation": { "en": "Where the prosecution seeks to show that something said, either in or out of the court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge which is sought to be proved;", "zh-HK": "控方指被告人在法庭作證時或在其他時候曾經說過一些謊話，這些謊話是關於某些獨特及有別於涉及控罪的議題，而控方依賴這些謊言作為針對被告人控罪的罪證；" } }, { "doc_id": 140, "seg_id": 25, "translation": { "en": "Where although the prosecution has not adopted the approach stated in (3) above, the judge reasonably envisages that there is a real danger that the jury may do so.", "zh-HK": "就算控方沒有採用上述第 3 項的做法，但若法官合理地認為陪審團會有可能會採用上述的做法，他就需要作出「謊言的指引」。" } }, { "doc_id": 140, "seg_id": 26, "translation": { "en": "According to Mo Shiu Shing, a “lies” direction should be modified as appropriate in light of the circumstances of the particular case. In general, such a direction will be adequate if it conveys the following two fundamental messages:", "zh-HK": "根據毛兆成，「謊言的指引」的內容必須按每件案件的案情而作出適當的配合。一般而言，若這指引包含了以下兩點基本要求已經是足夠的 ：" } }, { "doc_id": 140, "seg_id": 27, "translation": { "en": "the lie must have been established upon the defendant’s admission or proved beyond reasonable doubt;", "zh-HK": "被告人承認說謊或者控方已經在亳無疑點下證明被告人說謊；" } }, { "doc_id": 140, "seg_id": 28, "translation": { "en": "the mere fact that the defendant lied is not in itself evidence of guilt since defendants may lie for innocent reasons. Therefore, it is only when the jury is sure that the defendant did not lie for an innocent reason that a lie can be used in support of the prosecution case.", "zh-HK": "被告人說謊，這點本身並非罪證，因為被告人說謊是或者可能是由於一些清白或無辜的理由而導致的。陪審團必須肯定，被告人是並非因為清白或無辜的原因而說謊時，才可以把他說謊一事視為支持控方指控他的證據。" } }, { "doc_id": 140, "seg_id": 29, "translation": { "en": "In the present case, Deputy Judge Pang did give a “lies” direction to the jury, but obviously not by reason of any of the four circumstances prescribed in Mo Shiu Shing and set out above. The Judge raised this point when he was directing the jury on how to deal with the evidence given by witnesses (including the defendant’s evidence). He first stated that the burden of proof was on the prosecution, and that even if the jury did not believe anything the defendant and his witnesses had said, they could not jump to a verdict of guilty, because such a verdict could be made only where the evidence which they accepted as true was sufficient enough for them to be sure of the defendant’s guilt. The Judge then gave the following direction in relation to lies:", "zh-HK": "在本案，彭法官曾經向陪審團提出「謊言的指引」，但明顯地，他作出指引並不是因為本案出現毛兆成所列出的四項原因的任何一項。他是在指導陪審團如何處理證人的證供 (包括被告人的證供) 時提出這一點的。他首先指出舉證責任在於控方，就算陪審團完全不相信被告人及他的證人亦不能夠因此而裁定被告人有罪，因為這樣的裁決是要視乎陪審團所接納為真實的證據是否足夠令他們肯定被告人有罪。接着，他說出以下有關謊言的指引 ：" } }, { "doc_id": 140, "seg_id": 30, "translation": { "en": "“As a matter of fact, accused persons may not tell the truth, but that does not necessarily mean they are guilty. Sometimes they just want to bolster a genuine defence, that is, in colloquial terms, to lay it on thick. Or they may think that it would be hard to have the truth believed; or the truth involves some disgraceful conduct which fell short of being criminal; or they may lie simply out of panic, and so on and so forth. So if you really do not believe something the defendant has said and think that he has lied, but that he may have done it for reasons unrelated to guilt that I just talked about, then the only thing you should do is to disregard such part of the defendant’s evidence that you think is a lie, and concentrate on any other evidence you accept as true, including such part of the defendant’s evidence that you regard as true. I wish to make it clear that I am not saying the defendant has lied in any respect; I am just saying that, even if you are sure he has lied, you should not and cannot convict him for this reason alone.”", "zh-HK": "其實被起訴嘅人可能係會唔講真說話，但係就唔一定因為佢有罪，有時佢哋只係為咗加強一啲真實嘅辯護，講俗啲即係作大少少。又或者覺得實情唔係咁容易令人相信，又或者實情涉及一啲唔係好光彩，但係又唔至於犯罪嘅行為，又或者只係驚，林林總總。所以假如如果你真係唔信被告所講過嘅一啲乜嘢，認為佢講大話，但係就可能係為咗剛才提及同嗰啲有罪冇關嘅原因嘅話，咁你哋唯一應該做嘅就係唔好去理會佢講大話嗰部分，而集中考慮任何其他你哋接受為真實嘅證據，包括從被告而嚟，而你哋又認為係真實嗰一部分嘅證據。喺呢度我要澄清，我唔係話被告喺邊度講咗啲咩嘢大話，我意思係就算你哋認定佢講過大話，亦都唔應該同埋唔能夠就係為咗原因就定佢個罪。」" } }, { "doc_id": 140, "seg_id": 31, "translation": { "en": "In Mo Shiu Shing, this Court also pointed out that, where a “lies” direction is unnecessary because the case merely involves a conflict between prosecution evidence and defence evidence, giving such a direction would only add complexity and do more harm than good. The present case did not call for a “lies” direction, and Deputy Judge Pang gave such a direction apparently because he wished to put the jury in a better position to assess the defendant’s evidence. His intention was to safeguard the defendant’s rights. In our view, even though the Judge’s direction on lies had been unnecessary, the applicant’s conviction was not rendered unsafe unless there is clear evidence that the jury had been confused by that direction.", "zh-HK": "本庭在毛兆成一案中亦指出，如果案件是根本不需要作出「謊言的指引」，因為案情只是涉及控辯證據的衝突，作出這個指引只會令案件更加複雜，而且弊多於利。本案並不需要「謊言的指引」，但彭法官作出這個指引的明顯目的是希望陪審團更能明確地處理被告人的證供。他的本意是保障被告人的權利。本庭認為除非有明顯證供顯示陪審團被這個指引混淆，否則就算「謊言的指引」是不需要地被提出，亦不會影響案件的穩妥性。" } }, { "doc_id": 140, "seg_id": 32, "translation": { "en": "The applicant contends that the jury did get the wrong impression from the Deputy Judge Pang’s direction that he had lied. Following the summing-up, and before the jury retired to deliberate, the foreman verbally raised two questions with the Judge:", "zh-HK": "申請人指本案的陪審團確實是因這個指引而錯誤地認為他曾說謊言。當彭法官總結案情完畢，而陪審團還未退庭進行商議時，首席陪審員曾向彭法官提出兩個口頭問題，即 ：" } }, { "doc_id": 140, "seg_id": 33, "translation": { "en": "佢（申請人）知道有呢啲嘢喺度，但係唔知道嗰啲係乜嘢，佢唔理佢，算唔算有罪？\t“(1) [if] he (the applicant) knew something was there but did not know what it was, and he did not care about it, is he guilty?", "zh-HK": "(一)" } }, { "doc_id": 140, "seg_id": 34, "translation": { "en": "[if] the defendant knew these stuff and he … also knew it was drugs, but he did not care about it, that is, for instance, he did not call the police or the like, is he guilty?”", "zh-HK": "被告知道咗呢啲嘢，佢….亦都知道係毒品，但係佢唔理佢，即係譬如唔通知警方或者等等，算唔算有罪？」" } }, { "doc_id": 140, "seg_id": 35, "translation": { "en": "15.\tDeputy Judge Pang requested the jury to write down the above questions or other questions on which they needed an answer from the court. After deliberation, the jury returned with the following question in writing:", "zh-HK": "彭法官要求陪審團用書面形式提出上述問題，或其他需要法庭解答的問題。陪審團接着退庭商議，後來他們以書面提出以下的問題：" } }, { "doc_id": 140, "seg_id": 36, "translation": { "en": "“If the defendant knew that there was something in the premises but did not know it was drugs, and he neither took any action nor informed the police, then was he in possession of that article?”", "zh-HK": "若被告知道單位內有一些東西，並不知道是毒品，但沒有採取任何行動，並沒有通知警方，是否管有該物品？」" } }, { "doc_id": 140, "seg_id": 37, "translation": { "en": "Mr Eric Kwok, counsel for the applicant, submits that this written question was the same as the first verbal question raised by the jury. He suggests that the jury might have left out the second verbal question because, having heard the summing-up, they had formed the view that the applicant’s assertion that he had no knowledge of the existence of the drugs was a lie, and they had used this lie as evidence against the applicant.", "zh-HK": "代表申請人的郭棟明大律師指，這個書面問題和陪審團提出的第一個口頭問題是相同的，但省去了第二個口頭問題，這其中原因可能是陪審團聽了總結案情後，認為申請人稱他不知毒品的存在是謊話及他們採用了這個謊話來支持指控申請人的控罪。" } }, { "doc_id": 140, "seg_id": 38, "translation": { "en": "Ms Mary Sin, acting for the respondent, submits that the Judge had in fact not given any “lies” direction, because he told the jury that even if they took the view that the defendant had lied, they should not and could not convict him solely on that basis. Ms Sin submits that, in terms of meaning and nature, what the Judge told the jury was a far cry from the standard “lies” direction, which allows the jury to consider using lies as corroborative evidence under certain circumstances. Since the Judge had not given any “lies” direction, the problem which the relevant authorities had highlighted, namely that of the jury being confused by such a direction, simply did not arise in the present case.", "zh-HK": "代表答辯人的洗佩霞律師指，其實法官並沒有作出「謊言的指引」，因為法官向陪審團指出；就算他們認為被告人曾說謊，他們也不應該及不能夠因此裁定被告人有罪。洗律師指這跟標準的「謊言指引」讓陪審團在某些條件下，可以考慮以謊言為佐證的涵意及性質有天淵之別。既然彭法官沒有作出「謊言的指引」，有關案例中所詬病會令陪審團有混淆不清的情況也不會發生。" } }, { "doc_id": 140, "seg_id": 39, "translation": { "en": "We take the view that Deputy Judge Pang did give a “lies” direction, although it did not contain all the elements of a standard “lies” direction. However, we do not agree with Mr Kwok’s contention that the jury did not put the second verbal question into writing because, having heard the Judge’s “lies” direction, they had formed the view that the applicant was lying when he said he had no knowledge of the drugs, and had therefore used the lie as evidence against him. In our view, the Judge’s direction made no mention whatsoever of the circumstances under which the jury could use a lie as corroborative evidence against the applicant, and hence could not have led the jury to the decision that Mr Kwok suggests.", "zh-HK": "本庭認為彭法官的確是對「謊言」作出了指引。雖然指引的內容並不包括所有標準「謊言的指引」的要素，但本庭不同意郭大律師的指稱，陪審團不再提出先前的第二個口頭問題是因為聽取了彭法官有關「謊言的指引」後認為申請人說他不知道毒品的存在是謊言，所以引用了這個謊言去支持被告人的控罪。本庭認為彭法官的指引是完全沒有提及陪審團是可以在甚麼情況下才可以用謊言作為支持控罪的佐證，所以陪審團根本不是因為彭法官的指引而作出郭大律師所聲稱的裁決。" } }, { "doc_id": 140, "seg_id": 40, "translation": { "en": "Furthermore, even if the jury had conjectured as to this matter among themselves, Mr Kwok’s suggestion is still not defensible as a matter of logic. The wordings of the three questions raised by the jury had one thing in common, namely the defendant had knowledge of, and did not care about, the existence of the items; at the same time, the questions were different in that the first verbal question assumed the defendant did not know what the items consisted of, the second verbal question assumed the defendant knew that those items were drugs, and the third question (the only written question) assumed the defendant did not know that those items were drugs. This shows that, when the jury raised the written question, they were still concerned about the findings to be made if they believed that the applicant indeed did not know that the items in the premises were drugs. Deputy Judge Pang had clearly and correctly told the jury that, in that particular situation, they had to find that the applicant was not “in possession” of those drugs. Therefore, the suggestion that, having heard the “lies” direction, the jury had formed the view that the applicant was lying when he said he had no knowledge of the existence of the drugs, is far-fetched and inconsistent with the facts of the case.", "zh-HK": "其次，就算陪審團對這問題私自作出揣測，郭大律師所提出的論點在邏輯上是站不住腳的。陪審團提出的前後三個問題的共同點都是被告人知道物品的存在及不加以理會；不同之處是第一個口頭問題是被告人不知道這些物品的內容，第二個口頭問題是被告人知道這些物品是毒品，而第三個問題，即書面的唯一問題是被告人不知道這些 物品是毒品。所以當陪審團提出書面問題時，他們仍然是關注着如果申請人確實不知道該單位內的物品是毒品，他們應該作出甚麼裁斷。彭法官已經清楚及正確地向陪審團指出在這個情況，他們要裁決申請人沒有「管有」那些毒品。所以，如果指陪審團在聆聽「謊言的指引」後已經認為申請人說他不知道毒品的存在是謊話，這是一個牽強及不符合案情的指稱。" } }, { "doc_id": 140, "seg_id": 41, "translation": { "en": "In his submission before us, Mr Kwok sought to make the following amendment: when he said that the jury had, in light of the summing-up, formed the view that “the applicant was lying when he said he had no knowledge of the existence of the drugs”, he actually meant that the jury had formed the view that “the applicant was lying when he said he had no knowledge of the existence of the items”.", "zh-HK": "郭大律師在法庭陳詞時修改了陳詞內容，說他不是指陪審員是聽了總結後，而認為「申請人說不知毒品的存在是謊言」。他指出其實想說的是「申請人說不知物品的存在是謊言」。" } }, { "doc_id": 140, "seg_id": 42, "translation": { "en": "We wish to point out that this was not what the jury raised in their questions. Their questions had all along rested on the supposition that the applicant had knowledge of existence of items in the premises. Therefore, even a shift in the focus of Mr Kwok’s submission will not serve to show that the jury had been confused by the “lies” direction.", "zh-HK": "本庭要指出這並不是陪審團所提出的問題的內容，他們從始至終都是根據申請人知道該單位有物品而提出有關的問題，所以就算郭大律師改變他的陳詞要點，也不能證明陪審團被「謊言的指引」混淆。" } }, { "doc_id": 140, "seg_id": 43, "translation": { "en": "Mr Kwok also submits that Deputy Judge Pang failed to follow the standard “lies” direction in that he had not directed the jury that the applicant must admit to having lied or the prosecution must prove the lie beyond all reasonable doubt. With respect, we have difficulty in understanding this ground of appeal. As we have already pointed out, the Judge’s “lies” direction was not concerned with directing the jury on the circumstances in which lies could be used as corroborative evidence. Mr Kwok’s contention, therefore, does not constitute a valid ground of appeal.", "zh-HK": "郭大律師亦指彭法官沒有根據標準「謊言的指引」向陪審團指出，申請人必須承認他曾經說過謊話或者控方已經在毫無合理疑點下證明申請人說過謊話。這個上訴理由是令人費解的，正如本庭早前說過，彭法官所作出有關「謊言的指引」並不是指導陪審團在甚麼條件下才可以引用謊言作為佐證，所以郭大律師提出這一點並不構成合理的上訴理由。" } }, { "doc_id": 140, "seg_id": 44, "translation": { "en": "To avoid any further disputes on this issue, we take this opportunity to make it clear that trial judges should give a “lies” direction only when it is necessary. In normal circumstances, a judge is not required to give the directions set out in paragraph 11 above.", "zh-HK": "本庭在此指出，為避免日後就這個議題再有爭拗，主審法官應在有必要的情況下才作出「謊言的指引」。在通常的情況下，法官是不需要提出上述第 11 段所列的指引。" } }, { "doc_id": 140, "seg_id": 45, "translation": { "en": "Definition of “possession”", "zh-HK": "「管有」的定義" } }, { "doc_id": 140, "seg_id": 46, "translation": { "en": "In HKSAR v. Chiu Fung Kuen and Yim Chi Shing (transliteration) (趙鳳娟及嚴之成) (CACC 475/2001), this Court held that, in order to prove “possession” of drugs by a defendant, the following elements have to be established:", "zh-HK": "本庭在香港特別行政區訴趙鳳娟及嚴之成一案 (CACC 475/2001) 指出要證明被告人「管有」毒品必須證明下列要素 ：" } }, { "doc_id": 140, "seg_id": 47, "translation": { "en": "the defendant had knowledge of the existence and nature of the drugs;", "zh-HK": "被告人對毒品的存在及其性質有認知；" } }, { "doc_id": 140, "seg_id": 48, "translation": { "en": "the defendant had the intention and power to retain the relevant drugs by using or employing other means when necessary;", "zh-HK": "被告人有意圖及能力及在有需要時使用或利用其他方法保留有關毒品；" } }, { "doc_id": 140, "seg_id": 49, "translation": { "en": "when the defendant used or employed other means to retain the relevant drugs, he also had the power to exclude others from using and keeping the relevant drugs.", "zh-HK": "當被告人使用或利用其他方法保留有關毒品時，被告人亦有能力去排除其他人士使用或保管有關毒品。" } }, { "doc_id": 140, "seg_id": 50, "translation": { "en": "Mr Kwok submits that Deputy Judge Pang had failed to point out clearly the second of the three elements mentioned above, namely the defendant had the intention and power to retain the relevant drugs by using or employing other means when necessary. In particular, when the jury raised those two questions, the Judge should have immediately made it clear that knowledge was not the same as “possession”.", "zh-HK": "郭大律師指彭法官未有明確指出上述三個要素的第二個要素，即有意圖及能力及在有需要時使用或利用其他方法保留有關毒品。尤其是當陪審團提出那兩個問題時，彭法官應立即明確地指出認知不等同「管有」。" } }, { "doc_id": 140, "seg_id": 51, "translation": { "en": "With respect, we do not agree with Mr Kwok on this issue. In explaining “possession” to the jury, Deputy Judge Pang referred to two definitions of the term. The first was to hold a physical object directly, and the second was to retain the right of control over an object. The Judge gave the following direction regarding the first definition of “possession”:", "zh-HK": "本庭不同意郭大律師的說法。彭法官解釋「管有」時向陪審員提出「管有」的兩種定義。第一是直接把握實物；第二是對物件保留一個控制權。對於第一種類的「管有」，彭法官作出如下的指引 ：" } }, { "doc_id": 140, "seg_id": 52, "translation": { "en": "“It is to hold a physical object directly. For example, I am holding this law book in my hand. This is a conscious act. I do want to hold it, I know what I am holding, and I know it is a law book. I also have my own purpose of holding it, for instance, I want to read it or move it from one place to another in order to keep it from getting wet, or maybe I want to take it back into the chambers, and so on. This is to hold a physical object directly.”", "zh-HK": "係直接把握住實物，例如我手揸住呢部法律典籍，呢個係一個有意識嘅行為，我係想揸住佢嘅，我知道我揸住嘅係乜嘢，我知道係一本法律典籍。揸住佢，我亦都有我嘅用意，例如係搦嚟睇，又或者唔想整濕，由一邊放到另外一邊，又或者要帶番返入內庭，諸如此類，呢個就係直接把握住實物。」" } }, { "doc_id": 140, "seg_id": 53, "translation": { "en": "As for the second definition of “possession”, Deputy Judge Pang gave the following direction:", "zh-HK": "至於第二種「管有」，彭法官作出了如下的指引：" } }, { "doc_id": 140, "seg_id": 54, "translation": { "en": "“However, I have many such law books. This book is only one of them. The other books are in my office. Although they are not in my hands at this moment, I can get them and read them anytime I want, or lend them to someone or refuse to lend them to anyone. In this way, the other law books in my office are still in my possession, but such possession is in the second sense, which, put simply, is to retain the right of control over the objects.”", "zh-HK": "但係呢啲嘅法律典籍我好多個噃，呢個只係其中一部啫，其他就喺我裡面嘅辦公室，而家雖然唔喺手，我要嗰時候卻係可以隨時查閱，又或者搦嚟借畀人，又或者唔借畀人，咁樣我對其他喺裡面嗰啲法律典籍仍然係管有，但係就係第二種意義嘅管有，簡單講就係對物件保留一個控制權。」" } }, { "doc_id": 140, "seg_id": 55, "translation": { "en": "In his directions, Deputy Judge Pang did not expressly refer to the need for the applicant to have the “intention” and “power” to use those drugs. This notwithstanding, the requirements of “intention” and “power” were obviously included in the illustrations he used. When he said he was holding a book, he referred to his intention, which might be to read it or to take it back to his chambers; or when he was not holding other books, he could always have access to them or lend them to others. These were all practical illustrations of the need for the defendant to have “intention” and “power” to use this item. In Chiu Fung Kuen, this Court held that the trial judge’s direction on possession was inadequate, because the example he used did not demonstrate the need for the defendant to have “power” to use the relevant item. That example related to the use of books of the court in a courtroom by a barrister. As this Court pointed out, a barrister does not have the “power” to use the books of a court without permission. Even if the barrister has the requisite intention, he still does not have “power” to exercise control over the books of a court. This is entirely different from the example used by Deputy Judge Pang in the present case. The Judge of course had the “intention” and “power” to use his books whenever he needed them. The example given by the Judge contained all the elements of “possession”.", "zh-HK": "雖然彭法官在作出上述指引時並沒有引用申請人需要有「意圖」或「能力」使用該毒品的字眼，但他所舉出的例子明顯地包括了使用毒品的「意圖」及「能力」。當他說他手持書本時，他是有他的用意，例如拿來看或者把書帶回內庭；或者就算他不是手持其他的書本，但他是可以隨時閱讀這些書本或將它們借給別人，這些都是有關被告人需要有「意圖」及有「能力」使用這物品的實際例子。在趙鳳娟一案，本庭認為原審法官所作出有關管有的指引並未足夠，因為他引用的例子並不能顯示被告人有「能力」使用有關的物品。原審法官引用的例子是大律師在法庭使用法庭的書本，正如本庭所說，在未獲得書本的物主批准，大律師是沒有「能力」私自使用法庭的書本。即使大律師是有意圖，但他是仍然沒有「能力」控制法庭的書本的。這和彭法官在本案中所採用的例子截然不同。如果彭法官需要使用他的書本，他當然是有「意圖」及「能力」去使用。彭法官引用的例子是包括了「管有」的定義的所有要素。" } }, { "doc_id": 140, "seg_id": 56, "translation": { "en": "For this reason, we do not find anything improper in the direction on “possession” in the present case. In our view, however, it would be more appropriate for judges to set out all the elements of “possession” before citing examples to illustrate those concepts.", "zh-HK": "故此本庭認為本案有關「管有」的指引並無不妥之處，但本庭必須提出更適當的做法是法官首先列出「管有」的各項要素，然後才引用例子來詮釋這些要素。" } }, { "doc_id": 140, "seg_id": 57, "translation": { "en": "Mr Kwok queries why the jury still asked questions if they had understood Deputy Judge Pang’s direction on “possession”. The fact that the foreman raised the verbal questions immediately following the summing-up shows that those questions were what the jury had discussed the day before. When he raised the verbal questions, they had not reached a conclusion on the issues raised in the summing-up. This does not mean that they did not understand the direction on “possession”. As to the subsequent written question, the Judge had clearly told the jury that, if the applicant did not know that those items were drugs, he would not be “in possession” of them.", "zh-HK": "郭大律師質疑，如果陪審團是明白彭法官有關「管有」的指引，為何他們再提出問題呢？當首席陪審員在彭法官引導完畢後，即時提出口頭問題已經說明這問題是他們在早一日討論過的問題，所以當他提出口頭問題時，陪審團是仍未對彭法官的總結作出結論，這並不表示他們是不了解有關「管有」的指引。至於其後的書面問題，彭法官已經直接了當地告訴他們，若申請人不知道這些東西是毒品，他就是沒有「管有」它。" } }, { "doc_id": 140, "seg_id": 58, "translation": { "en": "Direction on trafficking", "zh-HK": "販運的指引" } }, { "doc_id": 140, "seg_id": 59, "translation": { "en": "The third ground of appeal contends that Deputy Judge Pang had failed to give a clear and complete direction on the meaning of “trafficking”. Mr Kwok submits that, in explaining term “trafficking”, all Deputy Judge Pang did was quoting the words of the relevant ordinance and pointing out that “trafficking” was different from “peddling”, and he had failed to give any further explanation in light of the circumstances of the present case.", "zh-HK": "第三個上訴理由是彭法官未能對陪審團就「販運」的定義作出清晰及全面的引導。郭大律師指彭法官在解釋「販運」的定義時只是重新引述有關條例中的字句及指出「販運」並不等同於「販賣」，而沒有因應今次案件的案情加以詮釋。" } }, { "doc_id": 140, "seg_id": 60, "translation": { "en": "With respect, we do not agree with this submission. In explaining the term “trafficking”, Deputy Judge Pang did in fact tell the jury that “trafficking” meant cutting, packaging and selling drugs. This direction was clearly directed at the circumstances of the present case. The prosecution alleged that the premises had apparently been used as a drug cutting and packaging centre. The Judge also pointed out to the jury that the focus of this case was whether the applicant had done any act of “trafficking”, and this hinged on whether he had been “in possession” of the drugs in question. The Judge referred to the prosecution’s remark that the drugs and other items were found in conspicuous places inside the premises, and this, the Judge said, allowed for only two possibilities: first, those items belonged to the applicant himself; and second, others had placed these items inside the premises with the applicant’s consent. In the present case, the jury were entitled to find that the items in the premises, including the drugs, were in the applicant’s “possession”. Given the nature of those items, the jury were also entitled to infer that the applicant was “in possession” of those items for the purpose of “trafficking”, because earlier on Deputy Judge Pang had explained that cutting, packaging and selling drugs could amount to “trafficking”. The quantity and value of the drugs involved, the fact that the drugs had already been put in different packets, and the presence of drug cutting items and measuring apparatus in the premises, could all be relied on by the jury as evidence of “trafficking”. For this reason, we take the view that the Judge had given a complete direction on “trafficking”.", "zh-HK": "本庭不同意這個說法。其實，彭法官在解釋「販運」毒品時已經向陪審團指出，將毒品稀釋、包裝及出售就是「販運」。明顯地，這個指引是針對本案的案情而作出的。控方指該單位明顯地曾經被利用作為毒品稀釋及包裝中心。彭法官亦對陪審員指出，本案的焦點只是在於申請人有沒有「販運」的行為，而這一點的關鍵在於申請人有沒有「管有」涉案的毒品。他向陪審團提出控方的指稱，該單位內的毒品及其他物品放在當眼的地方，這只有兩個可能性。其一，這些物品是申請人自己的；其二，申請人同意別人存放這些物品在該單位內。在本案，陪審團是可以裁定該單位內的物品，包括毒品在內是在申請人「管有」下的。根據這些物品的性質，陪審團亦可以推斷申請人「管有」這些物品作為「販運」之用，因為先前彭法官已經向他們指出，將毒品稀釋、包裝及出售是屬於「販運」。既然本案涉及數量多及價值高的毒品，毒品又已經分別包裝，該單位亦存放了稀釋毒品的物品及量器，這些都是陪審團是可以依賴來作出「販運」的裁斷的證據，故此本庭認為彭法官已經作出了一個關於「販運」的完整指引。" } }, { "doc_id": 140, "seg_id": 61, "translation": { "en": "In his direction, Deputy Judge Pang referred to the prosecution’s allegation that the applicant had agreed to safekeep the drugs for others for the purpose of “trafficking”. The Judge explained to the jury that the alleged safekeeping agreement must be such as to constitute at law “joint possession” of the drugs by the applicant and others before the applicant could be found guilty. The Judge had earlier on explained this legal concept of “joint possession”, citing, by way of illustration, an example of books being jointly used by two judges. The ground of appeal raised on behalf of the applicant is that the Judge had not clearly stated that being “in joint possession” of the drugs with others was in itself insufficient to prove that the applicant was “in possession of dangerous drugs for the purpose of trafficking”. In HKSAR v. Ng Hung Chi (CACC 186/2000), the appellant verbally admitted to the police upon arrest that she was only hiding the drugs for her husband. In its judgment, this Court pointed out that the direction given by the trial judge conveyed an impression that, by storing drugs, the defendant already trafficked in them. This Court considered the direction incomplete, because the fact a defendant stored drugs did not necessarily mean he was dealing with or trafficking in the drugs, since he might well be storing them for his own consumption. This Court said that, to enable the jury to arrive at a verdict on the charge of “possessing dangerous drugs for the purpose of trafficking”, the judge must give further relevant directions to the jury, such as the appellant had reached an agreement with others so that the appellant or others would sell the drugs, or that the appellant would deliver the drugs according to instructions given by others, and so on.", "zh-HK": "彭法官在作出指引時曾經提出控方的聲稱指申請人是同意替人保管這些毒品作為「販運」用途。彭法官向陪審團解釋，同意替人保管的指稱是必須要符合申請人和別人「共同管有」的法律概念才可以判定他有罪。彭法官在先前已經就「共同管有」的概念作出了解釋。他採用的例子是兩位法官共同使用書本。但郭大律師提出的上訴理由是彭法官沒有清楚交代，單是與別人「共同管有」該批毒品也不足以裁定申請人是「管有危險藥品作販運之用」。在吳鴻志（譯音） (HKSAR v. Ng Hung Chi) CACC 186 of 2000 一案，上訴人在被拘捕時對警察作出了口頭招認，指出她只是替丈夫收藏毒品，本庭在判案書說原審法官的指引給人印象是被告貯存毒品已經是販運毒品，本庭認為這指引是不完整的，因為如果一個被告人只是貯存毒品，這並不等如他是處理或販運該毒品，因為他是可以貯存毒品作為自己吸食用途。本庭指出如果陪審團要裁定上訴人是「管有危險毒品作販運之用」，法官必須向陪審團進一步作出其他有關的指引，例如上訴人和其他的人士已經達成協議，上訴人或其他人士會出售這些毒品，或者上訴人會依照其他人士的指示去運送毒品等等。" } }, { "doc_id": 140, "seg_id": 62, "translation": { "en": "The observation of this Court in Ng Hung Chi that the trial judge had to further explain to the jury the meaning of “trafficking” was obviously made in light of the facts of that case and of the direction given by the trial judge. In the present case, there was no allegation that the defendant was storing the drugs for self-consumption. In his direction, Deputy Judge Pang said that, even if the applicant was not the person who did the drug cutting and packaging, it would be impossible for him not to have knowledge, since the relevant items were found in conspicuous places; and since he had not taken any action, he must have been safekeeping the drugs for others for the purpose of trafficking. This direction was in our view adequate and we see no need for the Judge to provide any further explanation. The jury clearly understood the Judge was referring to the applicant having agreed to safekeep the drugs for others, who would cut, package and peddle the drugs. This conduct is relevant to “joint possession” of drugs for the purpose of “trafficking”.", "zh-HK": "明顯地，本庭在吳鴻志要求原審法官需要再向陪審團解釋「販運」的定義是根據該案的案情及原審法官的指引而作出的。本案不涉及被告貯存毒品自用之說。彭法官在指引內說，就算申請人不是稀釋及包裝毒品的人，但由於有關的物品擺放在顯眼的地方，申請人是不可能不知情的，而他又沒有採取過任何行動，他肯定是替別人保管毒品以作販運用途。本庭認為彭法官的指引已經是足夠的，他是不需要再作進一步的解釋。陪審團是清楚明白他所指的是申請人同意替人保管毒品，讓別人進行稀釋、包裝及販賣。這行為涉及「共同管有」毒品作「販運」用途。" } }, { "doc_id": 140, "seg_id": 63, "translation": { "en": "Mr Kwok submits that the written question raised by the jury, particularly its reference to the applicant not caring about the relevant items, indicates that the jury must have excluded the possibility that the applicant himself cut and packaged the drugs, and therefore Deputy Judge Pang should have elaborated on the issue of “trafficking”. We have difficulty in accepting this argument. The jury’s written question focused on “possession”, and the Judge had already clearly told them that if the applicant did not know that the items in the premises were drugs, he would not be “in possession” of them. The written question had nothing to do with “trafficking”.", "zh-HK": "郭大律師指陪審團提出的書面問題，特別是有關申請人不去理會這些物品之說正已表示他們已經否定申請人自己稀釋及包裝毒品之可能性，所以彭法官需要在「販運」這議題上詳加解釋。本庭不同意這個說法，因為陪審團書面問題的重點是關於「管有」，而彭法官已經清楚地告訴他們如果申請人不知道該單位內的物品是毒品，申請人不是「管有」毒品。所以這問題和「販運」扯不上關係。" } }, { "doc_id": 140, "seg_id": 64, "translation": { "en": "As a matter of fact, that the applicant safekept the drugs for others was nothing more than a possibility raised by the prosecution. The applicant had never admitted that he was safekeeping the drugs for others. His only defence was that he had no knowledge of the existence of the drugs. As we have pointed out, even if the jury were of the view that the applicant was not safekeeping the drugs for others, they could still rely on the drug cutting and packaging evidence and conclude that the applicant himself was “in possession of the drugs for the purpose of trafficking”. For this reason, even if it were true that Deputy Judge Pang had not further elaborated on “joint possession for the purpose of trafficking”, this would not have rendered the conviction unsafe and unsatisfactory.", "zh-HK": "其實，在本案申請人代其他人保管毒品只是控方提出的另一點可能性。申請人並沒有作出任何招認說是代人保管這些毒品。他唯一的答辯理由是不知道毒品的存在。如果陪審團認為申請人並非代他人保管毒品，正如本庭早前所說他們亦可以根據稀釋及包裝毒品的證據來裁斷申請人是自己「管有這些毒品及作為販運之用」。因此，就算彭法官對「共同管有作為販運之用」沒有再進一步詳加解釋的指稱屬實，亦不會影響定罪的穩妥及安全性。" } }, { "doc_id": 140, "seg_id": 65, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 140, "seg_id": 66, "translation": { "en": "In the absence of a valid ground of appeal, the application for leave to appeal against conviction is dismissed.", "zh-HK": "申請人未能提出合理的上訴理由，故此本庭駁回不服定罪的上訴許可申請。" } }, { "doc_id": 140, "seg_id": 67, "translation": { "en": "Ms Mary Sin, Senior Assistant Director of Public Prosecutions, for the respondent.", "zh-HK": "答辯人 ：由律政司冼佩霞高級助理刑事檢控專員代表。" } }, { "doc_id": 140, "seg_id": 68, "translation": { "en": "Mr Eric Kwok, instructed by the Legal Aid Department, for the applicant.", "zh-HK": "申請人 ：由法律援助署委派郭棟明大律師代表。" } }, { "doc_id": 141, "seg_id": 1, "translation": { "en": "Barnes J (giving the judgment of the Court):", "zh-HK": "原訟法庭法官張慧玲頒發上訴法庭判案書：" } }, { "doc_id": 141, "seg_id": 2, "translation": { "en": "The applicant was charged with one count of Trafficking in a Dangerous Drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.", "zh-HK": "申請人被控一‍項「販運危險藥物」罪，違反香港法例第 134 章《危險藥物條例》第 4(1)(a)及(3) 條。" } }, { "doc_id": 141, "seg_id": 3, "translation": { "en": "He pleaded guilty before Deputy District Judge Josiah Lam (as he then was) at the District Court and was sentenced to 28 months’ imprisonment. He now seeks leave to appeal against his sentence.", "zh-HK": "申請人在區域法院暫委法官林‍偉‍權(當時官階)席前承認控罪，被判監禁28 個月，申請人現針對判刑申請上訴許可。" } }, { "doc_id": 141, "seg_id": 4, "translation": { "en": "Admitted Facts", "zh-HK": "承認案情" } }, { "doc_id": 141, "seg_id": 5, "translation": { "en": "The facts disclosed that on the material night, a detective police constable posed as a drug buyer and contacted the applicant by phone. The applicant asked the constable if he wanted “ice” and how much he wanted. The constable replied that he wanted “two dong”(兩戙). Later the applicant phoned the constable and told him to proceed to the lift lobby set out in the charge to make a transaction. The constable and his colleagues went to the lobby to lay ambush. When the applicant appeared, he gave four packets of “ice” to the constable who in turn gave him $1,200. At this juncture the other officers who had been laying ambush turned up and arrested the applicant. Under caution the applicant said he was unemployed and he sold dangerous drugs to make money. The “ice” involved was 1.07 grammes.", "zh-HK": "案情顯示在案發當晚有一‍名探員假扮毒品買家，打電話予申請人。申請人問探員他是否想要「冰」及要多少，探員回答說要「兩‍戙」。申請人稍後打電話給探員，著他前往控罪所指的電梯大堂作交易。探員及他同事到大堂埋伏。當申請人出現時，將四‍包「冰」毒交給探員，探員交了1,200 元予申請人。此時埋伏的探員便現身，將申請人拘捕。警誡下申請人說他無業，賣危險藥物賺錢。涉案「冰」毒為1.07 克。" } }, { "doc_id": 141, "seg_id": 6, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 141, "seg_id": 7, "translation": { "en": "The applicant was born in November 1972 and is now aged 37. He is divorced and was unemployed at the time of the offence. He had 13 court appearances with a total of 22 convictions, four of which were related to dangerous drugs (one being possession of dangerous drugs and three being trafficking in a dangerous drug).", "zh-HK": "申請人在1972 年11 月出生，現年37 歲，離了婚，案發時失業。他有13 次出庭紀錄，共有22 次刑事紀錄；其中四‍次與危險藥物有關(一次管有危險藥物，三次販運危險藥物)。" } }, { "doc_id": 141, "seg_id": 8, "translation": { "en": "Sentence", "zh-HK": "判刑" } }, { "doc_id": 141, "seg_id": 9, "translation": { "en": "Deputy Judge Lam referred to the sentencing guidelines laid down in Ching Kwok Hung which provide that the tariff for trafficking in up to 10 grammes of “ice” is 3 to 7 years’ imprisonment. Having considered the facts of the case and the applicant’s previous similar record, Deputy Judge Lam adopted 3 years and 6 months as the starting point. He gave the applicant a one-third discount and sentenced him to 28 months’ imprisonment.", "zh-HK": "林法官引述案例程國雄 就「冰」毒的判刑指引，販運至10 克「冰」毒，監禁由3 年至7 年。林法官考慮了案情及申請人的販運危險藥物前科後，以3 年6 個月為量刑起點；給予申請人三分之一的刑期扣減後，判刑28 個月。" } }, { "doc_id": 141, "seg_id": 10, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 141, "seg_id": 11, "translation": { "en": "The ground of appeal put forward by Mr Suen Kam Hee, counsel for the applicant, was that the sentence was manifestly excessive. He relied on Yeung Kam Chun and Lee Yin Yu to support his arguments, submitting that for the trafficking of small amounts of “ice”, the sentencing judge was not obliged to take a starting point of 3 years.", "zh-HK": "申請人代表孫‍錦‍熹大律師提出的上訴理由是刑期明顯過重。孫大律師引用案例楊錦進 及李燕如 支持他的論點，指在販運少量「冰」毒時，法官並非必須以3 年為量刑起點。" } }, { "doc_id": 141, "seg_id": 12, "translation": { "en": "Mr Suen also submitted that Deputy Judge Lam was wrong in principle to further enhance a sentence that was already manifestly excessive on the basis that the applicant had three similar previous records. Mr Suen argued that although the court determined in Chan Pui Chi4 that for a defendant who was a persistent offender, the court was entitled to adopt a slightly higher starting point, that should depend on the gravity of the crime. The quantity of “ice” involved in the present case was small and did not justify a large upward adjustment of the starting point.", "zh-HK": "孫大律師亦指林法官以申請人有三次相同刑事紀錄而把已明顯過重的刑期再加高，是犯了原則上的錯誤。孫大律師指雖然陳沛枝 一案法庭裁定若被告人持續犯案，法庭可採納稍高量刑起點，但這要因應罪行嚴重程度，本案涉及「冰」毒數量少，不足以大幅調高量刑起點。" } }, { "doc_id": 141, "seg_id": 13, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 141, "seg_id": 14, "translation": { "en": "In Yeung Kam Chun, one of the offences that the defendant faced was trafficking in 1.59 grammes of “ice”. The Court of Appeal did not agree with the respondent’s submission about the 3 to 7 years sentencing tariff laid down in Ching Kwok Hung: namely, that 3 years was the minimum starting point. The Court of Appeal pointed out that for small amounts of “ice”, the judge was not obliged to start with 3 years and it would be within the discretion of the judge to adopt a starting point lower than 3 years in consideration of the actual amount of “ice” involved.", "zh-HK": "在楊錦進一案 ，案中被告其中一項控罪是販運1.59 克「冰」毒。上訴庭不同意答辯人就程國雄案中3 年至7 年指引所作的陳詞：即3 年是最低限度的量刑起點，上訴庭指在處理少量「冰」毒時，法官並非必須以3 年作為量刑基準，法官有酌情權可因應「冰」毒的實際份量而採納一個較3 年為低的起點。" } }, { "doc_id": 141, "seg_id": 15, "translation": { "en": "In Lee Yin Yu, one of the offences that the defendant faced was trafficking in 0.51 gramme of “ice”. The facts of the case showed that she sold the 0.51 gramme of “ice” to a 16-year-old person for $100. Having considered Ching Kwok Hung, the trial judge sentenced her to 3 years’ imprisonment. The Court of Appeal referred to Yeung Kam Chun and stated that judges were not bound to adopt a starting point of 3 years. While the Court of Appeal agreed with the view of the trial judge that the sale of the dangerous drug to a teenager was an aggravating factor which warranted an enhancement of the sentence, it was of the view that the starting point of three years was manifestly excessive and that two years should be adopted as the appropriate starting point.", "zh-HK": "在李燕如一案，案中被告其中一項罪名是販運0.51 克「冰」毒。案情顯示她將該0.51 克「冰」毒以100 元出售給一名16 歲的人。原審法官考慮了程國雄後，判處被告3 年監禁。上訴庭引述楊錦進指法官並非必須以3 年為量刑起點。上訴庭同意原審法官指出售危險藥物予年青人是一‍項使案情更為嚴重的加刑因素，但上訴庭仍指3 年量刑起點是明顯過高，恰當的量刑起點是兩‍年。" } }, { "doc_id": 141, "seg_id": 16, "translation": { "en": "In the present case, the amount of “ice” that the applicant trafficked in was 1.07 grammes, which was indeed a small amount. If he were a first offender, the court would not need to take 3 years as the starting point. However, the fact remains that he was a recidivist who had three previous similar convictions, for which he had been sentenced to ten to twelve months’ imprisonment. Yet he showed no interest in attempts to rehabilitate himself.", "zh-HK": "在本案，申請人涉及販運的「冰」毒是1.07 克，份量確是少。若申請人是初犯，實不須以3 年為量刑起點，但申請人確屢罰屢犯，而且已有三‍次販運危險藥物前科，曾被判刑10至12 個月，但申請人仍不知悔改。" } }, { "doc_id": 141, "seg_id": 17, "translation": { "en": "In Chan Pui Chi, the Court of Appeal stated that the court was entitled to take a higher starting point for a persistent offender than it would have had for someone of a clear record. We do not agree that a judge may only do so in serious cases. The Court of Appeal in Chan Pui Chi’s case cited shoplifting as an example and enunciated that if such an offence was repeated, a heavier sentence was likely to be imposed for repetition.", "zh-HK": "在陳沛枝一案，上訴庭已道出法官可採納較判一名初犯者為高的量刑起點來處理屢罰屢犯的被告人。本庭不同意祇在案情嚴重時法官才可如此做。上訴庭在陳沛枝一案列出店舖盜竊為例，指判罰會因犯人多次重犯而加重。" } }, { "doc_id": 141, "seg_id": 18, "translation": { "en": "In view of the facts of this case, the quantity of “ice” involved and the applicant’s persistence in crime, the appropriate starting point should be 3 years. A starting point of 3 years and 6 months was manifestly excessive.", "zh-HK": "以本案案情、涉案「冰」的份量及申請人屢罰屢犯的前科而言，恰當的量刑起點是3 年。3 年6 個月的量刑起點是明顯過高。" } }, { "doc_id": 141, "seg_id": 19, "translation": { "en": "For the reasons given, we shall grant leave to appeal. Treating the hearing as the appeal, we allow the appeal to the extent that the 28 months’ imprisonment is set aside and substituted by a sentence of 2 years’ imprisonment.", "zh-HK": "基於上述理由，本庭批准上訴許可申請，並視為正式上訴。上訴得直，28 個月刑期擱置，改為兩‍年監禁。" } }, { "doc_id": 141, "seg_id": 20, "translation": { "en": "Mr Suen Kam Hee, instructed by Director of Legal Aid, for the Applicant.", "zh-HK": "答辯人：由律政司高級檢控官雷芷茗代表香港特別行政區。" } }, { "doc_id": 141, "seg_id": 21, "translation": { "en": "Mr Ira Lui, Senior Public Prosecutor, of the Department of Justice, for the Respondent.", "zh-HK": "申請人：由法律援助署委派孫錦熹大律師代表。" } }, { "doc_id": 142, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving reasons for judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 142, "seg_id": 2, "translation": { "en": "The Applicant was charged with 2 counts of “Rape”, contrary to Section 118(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. Following a trial in the Court of First Instance before Madam Justice M. Poon and a jury, the Applicant was convicted on both counts and sentenced to 12 years’ imprisonment. He applied for leave to appeal against conviction and sentence. He acted in person for his application in relation to the conviction whereas Mr James Tze of Counsel acted for him for his application in relation to the sentence. On the hearing day, he abandoned his application for leave to appeal against conviction and the application was dismissed by the Court right away. After hearing his application for appeal against sentence, the Court dismissed it for reasons as follow.", "zh-HK": "申請人被控兩項「強姦」罪，違反《刑事罪行條例》(香港法例第200章) 第118(1) 條。案件經高等法院原訟法庭法官潘敏琦及陪審團審訊後，申請人被裁定兩項罪名成立及被判處12年監禁。申請人就定罪及刑期提出上訴許可申請。申請人親自處理其定罪申請，而其刑期申請則由謝英權大律師代表。申請人在聆訊當日放棄針對定罪的上訴許可申請，該申請即時被本庭撤銷。本庭審理其刑期申請後駁回申請，理由如下。" } }, { "doc_id": 142, "seg_id": 3, "translation": { "en": "Facts of the case", "zh-HK": "案情" } }, { "doc_id": 142, "seg_id": 4, "translation": { "en": "The victim of the case, X, was a girl of 15 years old at the material time. The other defendant of the case was X’s mother (“Mother”). The Mother and the Applicant were a cohabiting couple. They lived with X and her younger brother. The Mother was charged with aiding and abetting the commission of the 2 counts of “Rape” by the Applicant. At the trial, the Mother pleaded guilty to one of the “Abetting” charges and was sentenced to 7 years’ imprisonment.", "zh-HK": "案件的受害人X在案發時是一名15歲的女童。同案的另外一名被告人是X的母親(‘母親’)。母親與申請人是同居的男女朋友。他們與X和她的弟弟一起居住。母親被控告協助教唆申請人干犯該兩項「強姦」罪。在審訊時，母親承認其中一項教唆罪及被判處監禁七年。" } }, { "doc_id": 142, "seg_id": 5, "translation": { "en": "The facts of the case indicated that one night in mid-August 2003, X was sleeping in her room at home. At about 12 midnight, the Applicant and the Mother returned home. The Applicant entered X’s bedroom and attempted to lift up her quilt to fondle her. He told X that he was her sworn father and could do whatever he wanted. X did not allow it and had a struggle with him. He could not have his way as intended and then returned to his bedroom. He asked the Mother to persuade X to go into their room. The Mother said X would not agree. He asked the Mother to tell X that he would not destroy her virginity. The Mother then asked X to go into her room and told X that she would not give X any pocket money if X did not agree to do so. In fact, such “pocket money” was to pay for X’s and her younger brother’s meal boxes. X told the Mother that she was just having her period and did not want to go into her room. The Mother said that she had made such an excuse to stall off the Applicant one week ago already and that this time she could not use it again. Eventually, the Mother pushed X into her room. After X had entered the room, the Applicant took off her clothes and had sex with her while the Mother was sleeping on the other side of the same bed. After that, X kicked off the Applicant with force and left the room (the 1st count).", "zh-HK": "案情顯示在2003年8月中的某一個晚上，X在家裡自己的房間睡覺。大概半夜12時，申請人和母親從外回家。申請人進入X的睡房，企圖揭開她的被子及撫摸她，申請人對X說他是X的契爺，想做甚麼都可以。X不允許及與申請人糾纏。申請人未能得逞，之後返回自己的睡房。他要求母親說服X到他們的房間。母親說X是不會答應的。申請人要求母親對X說他是不會破壞X處子之身。母親便要求X到她的房間及對X說如果X不答應就不會給X零用錢。這「零用錢」其實是X和她弟弟用作購買飯盒食用的金錢。X對母親說她月經剛到，不想到她的房間。母親說她一個星期前已經用這個藉口來推搪申請人，今次不能夠再用這個藉口。最後母親將X推入她的房間，X進入房間後，申請人除掉她的衣服，與她性交。當時，母親亦睡在同一張床的另外一邊。之後，X用力踢開申請人，離開房間(第一項控罪)。" } }, { "doc_id": 142, "seg_id": 6, "translation": { "en": "After that occasion, X became afraid of sleeping in her room. She and her younger brother slept on the floor of the living room together. A few days later, the Mother asked X to go into her room again. X refused. The Mother told X again that X would not get any pocket money if X did not go into her room and she pulled up X forcibly. X had no alternative but to go into the Mother’s bedroom. The Mother told her that the Applicant would not “interfere with her and wanted to touch her only”. On that occasion, the Mother did not accompany X into the room. After X had entered the room, the Applicant took off her clothes and had sex with her again. Soon afterwards, X kicked off the Applicant and left the room (the 2nd count).", "zh-HK": "這次之後X不敢再在自己的房間睡覺。她和弟弟一同睡在客廳的地上。幾天之後，母親又再要求X 進入她的房間。X拒絕。母親又再次對X說如果X不進入她的房間，X就不會有零用錢及用手強行拉X起身，X逼於無奈，只好進入母親的睡房。母親對她說申請人不會「攪佢，淨係想摸她」。這次母親沒有陪同X一同進入房間。入房後，申請人除掉X的衣服，再次與X性交。不久，X踢開申請人，離開房間(第二項控罪)。" } }, { "doc_id": 142, "seg_id": 7, "translation": { "en": "In September, shortly after the incidents, X complained to a few schoolmates that she had been abused by her mother’s boyfriend.", "zh-HK": "在事發後不久的九月份，X向她的幾個同學投訴她被母親的男朋友侵犯。" } }, { "doc_id": 142, "seg_id": 8, "translation": { "en": "Seven years later, X had a boyfriend. She told him that she had been sexually abused by the Applicant. Her boyfriend suggested that she tell a social worker about the incidents and call the police. However, ‘the Applicant’ (sic) did not do so because at the time the social worker whom she trusted had left his post, her mother was suffering from heart disease and her younger brother was moderately mentally retarded. In May 2010, X met the social worker whom she trusted again and revealed to him that she had been sexually abused by the Applicant. After several twists and turns, the social worker of the housing estate where X lived eventually accompanied her to make a report to the police.", "zh-HK": "七年後，X認識了一位男朋友，她告訴他她曾被申請人性侵犯。男朋友建議她將事情告訴社工及報警。但申請人沒有這樣做，因為當時她所信任的社工已經離職，而母親患有心臟病，弟弟患有中度弱智。到了2010年5月，X再次碰見那位她信任的社工，X向他透露曾被申請人性侵犯。幾番輾轉後，最終由X 所居住的屋邨社工陪同她報警。" } }, { "doc_id": 142, "seg_id": 9, "translation": { "en": "The Applicant had committed many offences of “Possession of a Dangerous Drug”.", "zh-HK": "申請人曾干犯多項管有毒品罪行。" } }, { "doc_id": 142, "seg_id": 10, "translation": { "en": "The Sentencing Principle", "zh-HK": "量刑原則" } }, { "doc_id": 142, "seg_id": 11, "translation": { "en": "The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.", "zh-HK": "上訴法庭在多宗近期的案件中重申法庭必須保護無辜及容易信賴別人的兒童，避免這些易受傷害的人士被人性侵犯，以致身體及精神受到創傷。在涉及性侵犯兒童的案件中法庭有需要採用具阻嚇性的刑期來防止其他人士干犯這類罪行。這些 具阻嚇性的刑期是表達公眾對這些罪行的厭惡及為受害者及其家人伸冤。" } }, { "doc_id": 142, "seg_id": 12, "translation": { "en": "The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:", "zh-HK": "上訴法庭指出法庭在處理性侵犯兒童罪行時就量刑所需要考慮的因素包括：" } }, { "doc_id": 142, "seg_id": 13, "translation": { "en": "The age difference between the defendant and the victim;", "zh-HK": "被告人與受害人的年紀差異；" } }, { "doc_id": 142, "seg_id": 14, "translation": { "en": "The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;", "zh-HK": "被告人與受害人的關係。被告人是否利用自己的地位干犯罪行及案件是否存在破壞信任的成份；" } }, { "doc_id": 142, "seg_id": 15, "translation": { "en": "Whether the defendant had used threats or inducements to make the victim succumb;", "zh-HK": "被告人有否利用恐嚇、利誘的手段來令受害人就範；" } }, { "doc_id": 142, "seg_id": 16, "translation": { "en": "The number of occasions of committing the offences and the duration of the offences;", "zh-HK": "犯罪的次數及時間；" } }, { "doc_id": 142, "seg_id": 17, "translation": { "en": "Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;", "zh-HK": "被告人有否使用不適當及不必要的暴力來令受害人受傷、不適；" } }, { "doc_id": 142, "seg_id": 18, "translation": { "en": "Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;", "zh-HK": "被告人在性侵犯受害人時有否採用安全措施來防止傳染性病給受害人或令受害人受孕；" } }, { "doc_id": 142, "seg_id": 19, "translation": { "en": "Whether the sexual abuses have caused physical or psychological trauma to the victim;", "zh-HK": "受害人是否因被性侵犯而受到肉體或精神的創傷；" } }, { "doc_id": 142, "seg_id": 20, "translation": { "en": "Whether the offences have impact on the family members of the victim;", "zh-HK": "有關的罪行有否影響受害人的家庭；" } }, { "doc_id": 142, "seg_id": 21, "translation": { "en": "Whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take photos or videos of the offence he committed; and", "zh-HK": "被告人有否同時涉及其他不當的行為，例如邀請其他人士觀看其罪行或拍攝或錄影；" } }, { "doc_id": 142, "seg_id": 22, "translation": { "en": "Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.", "zh-HK": "被告人是否精神不正常及患有戀童癖及其重犯的機會率。" } }, { "doc_id": 142, "seg_id": 23, "translation": { "en": "See HKSAR v. Chow Yuen Fai [2010] 1 HKC 181, HKSAR v. Lee Hon Wah [2011] 4 HKLRD 319, HKSAR v. Ng Ka Kin (CACC 328/2010) and HKSAR v. Lee Kwok Wai (CACC 199/2011).", "zh-HK": "見：HKSAR v. Chow Yuen Fai [2010] 1 HKC 181, HKSAR v. Lee Hon Wah [2011] 4 HKLRD 319, 香港特別行政區對吳家健Ng Ka Kin (CACC 328/2010) 及HKSAR v. Lee Kwok Wai 李國偉(CACC 199/2011)。" } }, { "doc_id": 142, "seg_id": 24, "translation": { "en": "The Sentence of this case", "zh-HK": "本案的刑期" } }, { "doc_id": 142, "seg_id": 25, "translation": { "en": "Undoubtedly, 12 years’ imprisonment was a severe sentence. Nevertheless, the sentencing principle was that the court should pass an appropriate sentence in accordance with the facts of the case. Sentences of similar cases could serve as reference, but ultimately the court passed the sentence based on the distinctive background of the case. This Court agreed that the sentencing approach adopted by Madam Justice M. Poon was appropriate because the facts of the case were really serious and there were many aggravating factors in the case:", "zh-HK": "無疑，12年監禁是一個非常嚴峻的刑期，但量刑的原則是法庭根據案情判處適當的刑罰，同類案件的刑期是具參考作用的，但法庭最終還是以該案的獨特背景為依據。本庭同意潘法官的量刑是適當的，因為案情確實嚴重及案件存有多項加重刑責的因素：" } }, { "doc_id": 142, "seg_id": 26, "translation": { "en": "The Applicant was 40 years old at the material time. He had abused X twice. At the time, X was just 15 years of age and she was vulnerable and could not protect herself.", "zh-HK": "申請人在事發時40歲，他兩次侵犯一名年僅15歲的X。X當時處於不能保護自己，容易受到傷害的年齡。" } }, { "doc_id": 142, "seg_id": 27, "translation": { "en": "The Applicant was the Mother’s boyfriend and they lived in the same residence at the material time. X called the Applicant “sworn father” and there was a special relationship of trust between them. Being an elder member of the family, he bullied X in order to satisfy his sexual desire.", "zh-HK": "申請人是母親的男朋友，案發時大家在同一居所生活，X稱申請人為「契爺」，兩人之間存有特別的信任關係，他以長輩身份來欺凌X，滿足性慾。" } }, { "doc_id": 142, "seg_id": 28, "translation": { "en": "From the facts of the case, the Applicant wanted to abuse X long ago. Having failed to abuse X at his first attempt, he took advantage of his intimate relationship with the Mother to egg her on to force X to succumb. The Mother was X’s closest family member but not only did she fail to protect X and stop the Applicant from abusing X, she also took part in the offences and coerced X to have sex with the Applicant. X said that under such desperate circumstances, she did not resist and was raped by the Applicant. By fair means or foul, the Applicant got the Mother to sell out her daughter to achieve the purpose of raping X. Such modus operandi must be regarded as more serious amongst similar cases.", "zh-HK": "從案情看來，申請人早已想侵犯X。申請人在首次侵犯X未能得逞後便利用他與母親的親密關係慫恿母親強逼X就範。母親是X最親近的親人，但她非但沒有保護X，阻止申請人侵犯X，還更參與其事，威逼X與申請人上床。X說她在這種絕望的情況下，沒有作出反抗，被申請人強姦。申請人不擇手段，要母親出賣女兒，讓他達到目的，污辱X，這種犯案手法在同類案件中更見嚴重。" } }, { "doc_id": 142, "seg_id": 29, "translation": { "en": "Although the Applicant pointed out that he did not ejaculate inside X’s body, he did not take any safety measures at all in the course of abusing her, thereby putting her at risk of getting pregnant and contracting venereal disease.", "zh-HK": "雖然申請人指他沒有在X體內射精，但他在侵犯X時是完全沒有採用任何安全措施，令她面對懷孕及染上性病的危險。" } }, { "doc_id": 142, "seg_id": 30, "translation": { "en": "X suffered tremendous psychological and physical trauma after the offences. According to X’s trauma report, although the offences took place many years ago, she had perpetual depression which affected her normal living functions. She suffered from Post-Traumatic Stress Disorder and the agonizing scenes of being abused kept appearing in her mind. She often felt helpless and incapable and resorted to self-evasion. She had symptoms of serious depression. She had tried hard to forget the incident, including moving out of the residence and avoiding contact with anything that could intrigue unpleasant memories. However, she still often felt panic-stricken and a lack of sense of safety. She tried to persuade herself into forgiving her mother and even came up with various exculpatory reasons for her but in vain. The Applicant had taken her virginity and so she often felt herself as dirty and had a poor self-image. In order to alleviate the pressure, she even chose to harm herself by cutting her wrist/s. She showed symptoms of perpetual exhaustion, headache, dizziness and sexual numbness, etc. Apart from physical and psychological suffering, her trust in her mother was completely destroyed because her mother only cared about her own interests and ignored her welfare. She also blamed herself for reporting the incidents to the police, causing her younger brother to be sent to a residential care home.", "zh-HK": "X在今次事件後受到極大的精神及身體創傷。根據X的創傷報告，雖然事隔多年，她情緒長期低落，影響一般生活機能。她出現創傷後遺症，被侵犯的痛苦情境不斷出現心頭。她常感到無助和無能為力，自我逃避。她有嚴重程度的抑鬱徵象。她曾努力嘗試忘記此事，包括搬離居所及避免接觸可引發不快回憶的事物，但仍經常感到惶恐及缺乏安全感。她試圖說服自己原諒其母親，甚至為她設想不同的脫罪理由，但不成功。她因被申請人奪去貞操而常常感到自己污穢和自我形象低落。為了減壓，她更選擇割腕自殘。她出現長期疲憊、頭痛、暈眩和對性麻木等徵狀。除身心受損外，她亦因其母親只顧個人利益，置她的福祉於不顧，令她對母親之信任完全摧毀。她亦對因舉報事件，令其弟被送往院社而感到自責。" } }, { "doc_id": 142, "seg_id": 31, "translation": { "en": "Besides, the Applicant’s acts had broken X’s family. X’s mother was sent to jail and X needed to take care of her moderately mentally retarded younger brother put in a residential care home.", "zh-HK": "另外，申請人的行為令致X的家庭分裂。X的母親被判入獄，X需要照顧安置在院社中的中度弱智弟弟。" } }, { "doc_id": 142, "seg_id": 32, "translation": { "en": "The Applicant said that he acted under the influence of alcohol at the material time. He now felt deeply remorse for the incidents. However, it was not a mitigating factor.", "zh-HK": "申請人指他在事發時受到酒精影響，他現對這事深感後悔。這不是減刑的因素。" } }, { "doc_id": 142, "seg_id": 33, "translation": { "en": "This Court dismissed his application for reasons given above.", "zh-HK": "基於上述原因，本庭駁回申請。" } }, { "doc_id": 142, "seg_id": 34, "translation": { "en": "The Applicant, in person, present (Conviction)", "zh-HK": "答辯人：由律政司高級檢控官雷芷茗代表。" } }, { "doc_id": 142, "seg_id": 35, "translation": { "en": "James Tze, instructed by Herbert Tsoi and Partners and assigned by the Legal Aid Department, for the Applicant (Sentence)", "zh-HK": "申請人(判刑)：由法律援助署委派蔡克剛律師事務所轉聘謝英權大律師代表。" } }, { "doc_id": 142, "seg_id": 36, "translation": { "en": "Ira Lui, Senior Public Prosecutor, of the Department of Justice, for the Respondent", "zh-HK": "申請人(定罪)：無律師代表，親自出席。" } }, { "doc_id": 143, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the reasons for judgment and ruling on costs of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書及訟費裁決：" } }, { "doc_id": 143, "seg_id": 2, "translation": { "en": "The appellant was prosecuted for four charges, two of which (the 1st and 3rd charges) were “procuring another person to become a prostitute”, contrary to section 131(1)(a) of the Crime Ordinance (“the Ordinance”), Cap. 200. There were two alternative charges of “trafficking in persons from Hong Kong” (the 2nd and 4th charges), contrary to section 129(1) of the Ordinance.", "zh-HK": "上訴人被控四項控罪，其中兩項(即第一及第三項控罪)是「導致另一人賣淫」罪，違反《刑事罪行條例》(《條例》)（香港法例第 200 章）第 131(1)(a) 條；另外兩項是交替控罪，即「販運他人離開香港」罪（第二及第四項控罪），違反《條例》第 129(1) 條。" } }, { "doc_id": 143, "seg_id": 3, "translation": { "en": "The case was tried before Deputy District Judge Wahab, who convicted the appellant after trial of two counts of “trafficking in persons from Hong Kong”, and sentenced him to three years’ imprisonment for each count, both sentences to run concurrently, making a total sentence of three years. The appellant applied for leave to appeal against conviction and sentence. We granted the application after hearing his case and treated the application for leave as the appeal proper. We also quashed the two convictions but ordered a retrial of the 4th charge. The appellant was allowed bail pending retrial. The reasons for our judgment are given below.", "zh-HK": "案件經區域法院暫委法官馬保華審理後，上訴人被裁定兩項「販運他人離開香港」罪罪名成立及每項控罪被判監三年，兩項判刑同期執行，總刑期為三年。上訴人就定罪及刑期提出上訴許可申請。本庭於聆訊後批准申請、視該申請為正式上訴、撤銷兩項定罪，但命令第四項控罪需要重審及批准上訴人可於候審期間擔保外出。以下是本庭的判案理由。" } }, { "doc_id": 143, "seg_id": 4, "translation": { "en": "Facts", "zh-HK": "案情" } }, { "doc_id": 143, "seg_id": 5, "translation": { "en": "The facts show that the following advertisement was published in a Hong Kong newspaper between December 2006 and June 2007:", "zh-HK": "案情顯示以下一則廣告於 2006 年 12 月至 2007 年 6 月期間刊登於一份香港的報章內：" } }, { "doc_id": 143, "seg_id": 6, "translation": { "en": "“Overseas short-term quick money. Japan, Britain, Taiwan. PR Safe and confidential. Can provide air tickets, board and lodging. Good reputation for many years (telephone number)”.", "zh-HK": "「海外短期快錢  日本、英國、台灣  PR  安全保密可包機票食宿  多年信譽  [電話號碼]」" } }, { "doc_id": 143, "seg_id": 7, "translation": { "en": "The advertisement was brought to the knowledge of the Hong Kong Police, which suspected that prostitution was involved and therefore assigned two woman police officers, namely the 1st prosecution witness (“PW1”) and the 2nd prosecution witness (“PW2”) to carry out investigations.", "zh-HK": "香港警方得悉有關廣告，並懷疑它涉及賣淫活動，因此指派兩名女警（即控方第一證人(‘第一證人’)及控方第二證人(‘第二證人’)展開調查。" } }, { "doc_id": 143, "seg_id": 8, "translation": { "en": "The 2nd charge", "zh-HK": "第二項控罪" } }, { "doc_id": 143, "seg_id": 9, "translation": { "en": "PW1 posed as a job applicant and telephoned a man surnamed Ho (“Mr Ho”) at the number provided in the advertisement. Mr Ho explained to PW1 that the nature of the job was “PR”. He told PW1 further that if she chose to go to Britain, she would have to pay for her own air ticket; however, if she chose to go to Japan, an air ticket would be provided to her. The duration of the job would be three months, she could choose to go to Taiwan if she preferred a shorter duration, which would be fourteen days. He added that working in Japan would be better rewarded and more comfortable when compared with working in other places. He would charge PW1 a fee of approximately $10,000, which would be deducted from PW1’s job income. Mr Ho said he would provide accommodation to PW1, and asked her what type of passport she was holding. They then arranged to meet the following day, and Mr Ho also required PW1 to bring along her passport for him to look at.", "zh-HK": "第一證人假扮應徵者。她根據廣告上提供的電話號碼致電一名何姓男子(‘何先生’)應徵。何先生對第一證人說明這是一份屬「PR」性質的工作。他告訴第一證人若她選擇前往英國的話，她就需自行付錢訂購機票；若她選擇到日本的話，他們會提供機票給她，工作期為三個月；若第一證人希望工作期較短的話，她可以選擇到台灣，為期14天。他說到日本工作較到其他地方所得的待遇高和較舒服。他會向第一證人收取約 $10,000的費用，有關費用會從第一證人工作後的收入扣除。何先生說他會提供宿舍給第一證人居住。他問第一證人所持的是哪種護照。之後，兩人相約在翌日會面，何先生並要求第一證人將她的護照拿來給他看。" } }, { "doc_id": 143, "seg_id": 10, "translation": { "en": "On 12 January 2007, Mr Ho (who was identified as the appellant) and PW1 met in a Mongkok hotel. Their conversations are summarized as follows:", "zh-HK": "2007 年 1 月 12 日，何先生(後被辨認出為上訴人)與第一證人在旺角一間酒店內會面。以下是他們的談話內容簡述：" } }, { "doc_id": 143, "seg_id": 11, "translation": { "en": "The appellant said he would arrange jobs for PW1 in the bars of the Chiba prefecture in Tokyo, Japan, where she had to provide sex services to the customers. The appellant also explained to PW1 details of her working hours and the fees that she would charge her customers. He told PW1 that she could keep the extra tips given by customers, and her monthly income could reach several tens of thousand Hong Kong dollars.", "zh-HK": "上訴人說他會介紹第一證人到日本東京千葉縣酒吧工作，她需要向酒吧的客人提供性服務。上訴人向第一證人說明有關的工作時間及她須向客人收取的費用詳情。他告訴第一證人客人給她的額外小費是屬於她的，她每個月可賺取數萬港元。" } }, { "doc_id": 143, "seg_id": 12, "translation": { "en": "The appellant would take PW1 to the airport, but she had to go through the customs herself. He would give PW1 a small quantity of Japanese coins, so that she could make a telephone call to inform him about her safe arrival in Japan. He would arrange other women to travel to Japan on the same flight with PW1, and someone would collect her at the Tokyo airport and take her to her quarters. After that, she could commence working in the bars immediately.", "zh-HK": "上訴人會送第一證人到機場，但她需要自行過關。他會給第一證人少許日本錢幣，讓她到埗後可打電話給他報平安。他會安排其他女子與第一證人一同乘飛機到日本；他亦會安排人員在東京機場接機及送第一證人到宿舍。之後，第一證人便可以立即到酒吧工作。" } }, { "doc_id": 143, "seg_id": 13, "translation": { "en": "(3)The appellant said PW1 could live in the quarters provided by the boss, but had to pay a monthly rental of $2,000. He would charge PW1 $13,000 as “passage fee”, to be deducted from her income. Her income would be kept by the Japanese boss first and given back to her later. The appellant also said they needed a large number of women to work in Japan, most of them would come back to Hong Kong after finishing their jobs, but would return to Japan to work after taking some rest. He said:", "zh-HK": "(3)上訴人說第一證人可以在老闆所提供的宿舍內居住，但須繳交每個月 $2,000 的租金，而他就會向第一證人收取 $13,000 的「水腳費」，該筆款項會在第一證人的收入中扣除。日本的老闆會扣起第一證人的收入，但之後會交還給她。上訴人並說他們需要大量的女子到日本工作，她們大部分在完成工作後會返港，休息一段時間後再到日本工作，他說：" } }, { "doc_id": 143, "seg_id": 14, "translation": { "en": "“will not force you … just like doing business … I make arrangements for you to go there, but will not charge you commission, that means the harder you work, the more money you make.”", "zh-HK": "「唔會迫你嘅…..好似做生意咁……我就安排你過去，咁就又唔會抽你佣嘅，即喺你做多啲，咁你咪搵多啲囉。」" } }, { "doc_id": 143, "seg_id": 15, "translation": { "en": "(4)The appellant said he could take PW1 to book an air ticket to Japan, but she had to pay the fee of $2,000 to $3,000 herself. Alternatively, he could book an air ticket for PW1, but the fee would be $5,000.", "zh-HK": "(4)上訴人說他可以帶第一證人去訂購往日本的機票，但她須自行支付 $2,000 至 $3,000的費用，又或者他可以代第一證人訂購機票，但費用要 $5,000。" } }, { "doc_id": 143, "seg_id": 16, "translation": { "en": "During the meeting, the appellant showed PW1 a photo album, which contained photographs showing the airport in Japan, some bars and the quarters.", "zh-HK": "兩人會面期間，上訴人將一本相簿遞給第一證人看，內載着一些日本機場、酒吧及宿舍的照片。" } }, { "doc_id": 143, "seg_id": 17, "translation": { "en": "PW1 told the appellant that she needed some time to consider whether she would go to Japan to work. The appellant telephoned PW1 on 13 July 2007 asking her whether she had made up her mind. He said the Japanese boss was in need of workers, and if PW1 was in financial difficulties, he would ask the boss to provide her with a cheaper air ticket. PW1 indicated that she was still considering it, as she would like to spend the New Year in Hong Kong. The appellant told PW1 that if she went to Japan, she could earn and bring home more than one hundred thousand Hong Kong dollars. PW1 has not contacted the appellant since then.", "zh-HK": "第一證人告訴上訴人她需要一點時間考慮是否到日本工作。2007 年 7 月 13 日上訴人致電第一證人及問她作出了決定沒有，他說日本那邊需要人手，若第一證人有財政困難，他可代她要求老闆提供較平宜的機票給她。第一證人向他表示她仍在考慮中，因為她想在香港過新年。上訴人對第一證人說若她去日本的話，她可賺取十多萬元港幣回家。之後第一證人再沒有與上訴人聯絡。" } }, { "doc_id": 143, "seg_id": 18, "translation": { "en": "The 4th Charge", "zh-HK": "第四項控罪" } }, { "doc_id": 143, "seg_id": 19, "translation": { "en": "Some time later, the police made arrangements for PW2 to contact the appellant. PW2 dialed the telephone number provided in the advertisement on 12 March 2007, posing as a job applicant, and spoke to a Mr Ho. PW2 asked Mr Ho if there were ways to make money, Mr Ho said “yes” and told PW2 that she could choose to go to Japan, Taiwan or Britain. Mr Ho then suggested meeting PW2 the following day, as it was not convenient to go into any details over the telephone. The appellant also asked PW2 what type of passport she was holding.", "zh-HK": "警方之後安排第二證人聯絡上訴人。2007年 3 月 12 日第二證人假扮應徵者，致電廣告上的電話，並與一名何先生對話。第二證人詢問何先生是否有途徑可以賺錢。何先生說「是」及說第二證人可以選擇去日本、台灣或英國。何先生對第二證人說在電話上詳談不方便，兩人於是相約在翌日見面。上訴人問第二證人所持的是哪種護照。" } }, { "doc_id": 143, "seg_id": 20, "translation": { "en": "The following day, PW2 and the appellant met in a Mongkok hotel, the same hotel where the appellant had met PW1. The appellant told PW2 in the meeting that the job she applied for was prostitution. He suggested that PW2 could work in the bars in the Chiba prefecture, as she could earn a monthly income of several tens of thousand dollars there. The appellant then explained to PW2 the charges of providing overnight services and the sex services she had to provide to her customers. He also told PW2 to hand over the money she received from her customers to the Japanese boss, who would deduct $13,000 from it to pay for the appellant’s “passage fee”, and the rest of the money would belong to PW2. The appellant told PW2 that she could earn $30,000 to $40,000 per month, and suggested that she gave her bank account number to the Japanese boss, so that he could transmit her wages to Hong Kong. The appellant also told PW2 that the Japanese boss would provide her with quarters at a monthly rental of $2,000.", "zh-HK": "翌日，第二證人與上訴人在旺角一間之前上訴人與第一證人會面的酒店會面。會面期間，上訴人對第二證人說明她所應徵的職位是妓女。他建議第二證人到日本千葉縣的酒吧工作，因為她可以每月賺取數萬港元。上訴人向第二證人說明她陪客人過夜的收費項目及她須向客人提供的性服務形式。他並吩咐第二證人她須將從客人收取到的金錢交給日本的老闆，他會從中取出 $13,000 來支付上訴人的「水腳費」，餘下的金錢則屬於第二證人所有。上訴人說第二證人每月可賺取 $30,000 至 $40,000。他建議第二證人把銀行戶口的號碼告知日本的老闆，讓他把她的工資滙到香港。上訴人告訴第二證人日本的老闆會提供宿舍給她，每月的租金為 $2,000。" } }, { "doc_id": 143, "seg_id": 21, "translation": { "en": "The appellant reminded PW2 to dress decently and not to bring any condoms and lubricants when she boarded the flight, because she would be prohibited from entering Japan if such items were found in her luggage by the Japanese immigration staff. He also mentioned to PW2 the fees for booking air tickets and showed her a photo album containing photographs showing the airport in Japan, some bars and the quarters.", "zh-HK": "上訴人提醒第二證人乘飛機時的衣著要斯文一點和不要攜帶安全套和潤滑劑上機，因為如日本入境處人員檢查第二證人的行李時發現這些物品，第二證人就不會獲准入境。上訴人亦與第二證人提及訂購機票的費用及將一本內載有日本機場、酒吧及宿舍照片的相簿給第二證人看。" } }, { "doc_id": 143, "seg_id": 22, "translation": { "en": "When PW2 telephoned the appellant on 30 May 2007, the appellant asked her whether she would like to work in Japan and suggested taking her to book an air ticket. PW2 agreed and arranged to meet him in Mongkok. After meeting up with the appellant, PW2 was taken to a travel agency, where she booked a round trip air ticket under a false name with the departure date of 12 June 2007, and the air ticket fare was paid by PW2. As the air ticket could not be issued that day, the appellant promised to collect it and give it to PW2 before her departure. He explained to PW2 details of her trip to Japan, and reminded her again that she had to dress decently on the day she departed for Japan. The appellant added that he would provide her with contraceptive pills. He told PW2 that the Japanese boss would charge her a fee of JPY 250,000, to be deducted from her income from receiving customers.", "zh-HK": "2007 年 5 月 30 日，第二證人致電上訴人，上訴人問她是否想去日本工作及建議由他帶第二證人去訂購機票，第二證人同意及與他相約在旺角見面。兩人見面後，上訴人帶第二證人到一間旅行社訂購機票。第二證人以假名訂購了一張在 2007 年6 月 12 日出發去東京的來回機票，費用是由第二證人支付。由於機票未能在當天發出，上訴人承諾他會替第二證人領取機票，並在她出發之前將機票交給她。他將到日本的細節告訴第二證人及再次提醒她往日本那天要穿着斯文的服裝。上訴人更說他會提供一些避孕丸給第二證人服食。他告訴第二證人日本的老闆會向她收取JPY 250,000的費用及會在她接客後所得的金錢中扣除。" } }, { "doc_id": 143, "seg_id": 23, "translation": { "en": "On the occasion when they met again on 11 June 2007, the appellant gave PW2 an air ticket and told her to phone him before she left for the airport, so that he could arrange for some Japanese staff to pick her up at the airport. The appellant also gave PW2 a few Japanese coins and told her to telephone him upon her safe arrival in Japan. He also gave PW2 a blister pack of contraceptive pills, a small phial containing contraceptive pills and a tube of lubricant, and advised her on how the aforesaid items should be stored to avoid detection. He also supplied PW2 with some information about traveling in Japan and false telephone numbers and addresses in Japan, in case she would be interrogated by the Japanese immigration staff.", "zh-HK": "2007 年 6 月 11 日，雙方再次會面，上訴人將機票交給第二證人及囑咐她在去機場之前要致電給他，他就會安排日本員工到機場接她。上訴人給了第二證人幾個日本硬幣及吩咐她在到埗後致電給他報平安。他又給第二證人一排避孕丸、一個載着一些避孕丸的小瓶及一支潤滑劑及教導她如何放置有關物品以掩人耳目。他又向第二證人提供一些日本旅遊資料及虛假的日本電話及地址資料，讓她在被日本入境處人員查問時使用。" } }, { "doc_id": 143, "seg_id": 24, "translation": { "en": "PW2 then gave signals to the police officers laying ambush in the vicinity, who approached the appellant and arrested him.", "zh-HK": "之後，第二證人向埋伏在附近的警員發出信號，他們上前把上訴人拘捕。" } }, { "doc_id": 143, "seg_id": 25, "translation": { "en": "Defence", "zh-HK": "答辯理由" } }, { "doc_id": 143, "seg_id": 26, "translation": { "en": "The appellant did not give evidence. His counsel at trial put it to PW1 and PW2 during cross-examination that the appellant had never mentioned to them, either over the phone or in the meetings, that they had to provide sex services in Japan; nor had he given any contraceptive pills, lubricants etc to PW2, he merely recruited them to work illegally in Japan.", "zh-HK": "上訴人沒有作供。他當時的代表律師在盤問第一及第二證人時向她們指出上訴人無論在電話上或會面時都從沒有提及關於她們在日本須向人提供性服務一事，亦沒有將避孕丸、潤滑劑等物品交給第二證人；他只不過是僱用兩名證人到日本當黑工。" } }, { "doc_id": 143, "seg_id": 27, "translation": { "en": "Decision of the trial judge", "zh-HK": "馬法官的判決" } }, { "doc_id": 143, "seg_id": 28, "translation": { "en": "On 17 November 2007, upon hearing the prosecution’s evidence and the defence’s closing submission, Deputy District Judge Wahab found the appellant guilty of the two alternative charges. The trial judge indicated that he would give a brief outline of his reasons for verdict first, and would “set out formally and in details” his reasons for verdict at a later stage. The trial judge then went on to say that the crucial issue in this case was whether the two prosecution witnesses had spoken to the appellant over the phone or met him personally. When and in what ways they contacted each other were side issues, the more important issue was what they talked about when they contacted with each other. The trial judge found that the prosecution had already proved that the conversations between the appellant and PW1 and PW2 involved their working as prostitutes in Japan, and he accepted the two witnesses’ evidence. The trial judge added that he had considered the fact that the appellant had no criminal conviction records, but nevertheless still accepted the two prosecution witnesses’ evidence. Regarding the reason why the prosecution did not make a closing submission, the trial judge explained that it was because the appellant did not give evidence in his own defence. The trial judge reiterated that he would first briefly outline his reasons for giving a guilty verdict, and the detailed reasons for verdict would be given and delivered in court on a later date. Subsequently, the judge passed sentences after hearing mitigation from defence counsel.", "zh-HK": "馬法官在 2007 年 11 月 17 日聆聽過控方證供及辯方的結案陳詞後立刻裁定兩項交替罪罪名成立。馬法官表示他會簡單說出裁決理由，但稍後會「正式詳細列出」判決理由。馬法官接着說本案的重要議題是控方兩名證人及上訴人有沒有通電話及會面，他們何時及以甚麼形式聯絡是次要的事，比較重要的是雙方聯絡時的談話內容。馬法官說控方已經證明上訴人與第一和第二證人的對話內容是涉及她們在日本賣淫的事，他接納兩名證人的證供。另外，馬法官說他有考慮過上訴人沒有刑事記錄，但他仍接納兩名控方證人的證供。馬法官解釋由於上訴人沒有作證自辯，因此控方沒有作出結案陳詞。馬法官再說他只是簡單交代何以他會作出定罪的裁決，稍後他會詳細交代他的裁決理由，並在法庭上宣讀。之後，馬法官在聆聽過辯方律師替上訴人求情的陳詞後作出量刑。" } }, { "doc_id": 143, "seg_id": 29, "translation": { "en": "The judge delivered the reasons for verdict and reasons for sentence in court on 28 November 2008.", "zh-HK": "馬法官於2008年11月28日在法庭上宣讀判決理由及判刑理由。" } }, { "doc_id": 143, "seg_id": 30, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 143, "seg_id": 31, "translation": { "en": "Regarding the convictions on the 2nd and 4th charges, the appellant’s counsel at appeal Mr Richard Wong submitted that the procedures and results of the hearing are so seriously flawed as to render the convictions unsafe and unsatisfactory. His reasons were that after hearing the case and after delivering his reasons for verdict and sentence, the trial judge had already fulfilled his duties and completed his task, he had no judicial power to deliver another set of reasons for verdict more than ten days later. Mr Wong submitted that this court should not accept the reasons for verdict delivered on 28 November 2008, but should instead decide this appeal solely on the basis of the reasons for verdict given on 17 November 2008. As the judge did not explain why he accepted the two witnesses’ evidence on 17 November 2008, hence this court could not decide whether the judge’s verdict was correct.", "zh-HK": "代表上訴人的黃達華大律師就第二項及第四項定罪提出的上訴理由是聆訊程序及結果嚴重失誤，以致定罪不安全及不穩妥。他的理由是馬法官在聆訊結束、宣告判決及判決理由後已履行了職責及完成了任務，他沒有司法權力在十多天後再宣讀另一份判決理由。黃律師指本庭不應該接納 2008年11月28日的判決理由書，而只應該根據2008年11月17日的判決理由來審理本上訴。由於馬法官在該日並沒有交代他接納兩名證人的證供的理由，因此本庭不能裁定馬法官的裁決是否正確。" } }, { "doc_id": 143, "seg_id": 32, "translation": { "en": "Section 80(1) of the District Court Ordinance", "zh-HK": "《區域法院條例》第 80(1) 條" } }, { "doc_id": 143, "seg_id": 33, "translation": { "en": "Section 80 of the District Court Ordinance (“the Ordinance”) (Cap 336) states:", "zh-HK": "《區域法院條例》(‘《條例》’)（香港法例第 336 章）第 80 條說：" } }, { "doc_id": 143, "seg_id": 34, "translation": { "en": "“80(1)The verdict and any sentence shall be delivered orally and be recorded in writing at the time of that delivery.", "zh-HK": "「80 裁決及任何判刑須以口述方式宣告，並在宣告時以書面記錄。" } }, { "doc_id": 143, "seg_id": 35, "translation": { "en": "The reasons for the verdict and any sentence -", "zh-HK": "裁決及判刑理由:" } }, { "doc_id": 143, "seg_id": 36, "translation": { "en": "shall be delivered orally; and", "zh-HK": "須以口述方式宣告；及" } }, { "doc_id": 143, "seg_id": 37, "translation": { "en": "shall be reduced to writing within 21 days after the hearing or the trial,", "zh-HK": "須在聆訊後或審訊後 21 天以書面記錄。」" } }, { "doc_id": 143, "seg_id": 38, "translation": { "en": "The wording of the current section 80 is different from that of the section 80 before 1993, which reads:", "zh-HK": "現行使用的第 80 條與 1993 年之前的第 80 條的條文用字不同，以前的條例內容是：" } }, { "doc_id": 143, "seg_id": 39, "translation": { "en": "“80.Before pronouncing judgment, a judge shall record his verdict and, at the same time or so soon thereafter as may be, shall also place on record a short statement of the reasons for the verdict.”", "zh-HK": "「法官在宣告裁決之前必須先記錄他的裁決及同時或者儘快將一份簡短的裁決理由書記錄在案。」" } }, { "doc_id": 143, "seg_id": 40, "translation": { "en": "According to the current section 80(2), a District Judge needs not deliver the reasons for verdict on the same day as he delivers the verdict. He can deliver the verdict first, and then fix a day for the delivery of the reasons for verdict and reduce them to writing. However, the reasons for verdict must be reduced to writing within 21 days after the oral delivery. The judge can of course deliver the verdict and the reasons for verdict on the same day, but section 80(2) forbids the delivery of two sets of reasons for verdict, one delivered immediately with the verdict and the other delivered some time later.", "zh-HK": "根據現行的第 80(2) 條，區域法院法官並不需要在宣告判決當日同時宣告判決理由，他是可以先宣告判決，然後再定日子宣讀判決理由及將判決理由以書面記錄下來，但他必須在宣讀判決後的 21 天內作出書面記錄。法官當然是可以在宣告判決當日同時宣告判決理由，但第80(2) 條不允許兩份判決理由，即一份是即時宣告的判決理由，而另一份是日後宣告的判決理由。" } }, { "doc_id": 143, "seg_id": 41, "translation": { "en": "Authorities", "zh-HK": "案例" } }, { "doc_id": 143, "seg_id": 42, "translation": { "en": "The Court of Appeal has stated repeatedly on the basis of the old section 80 that a District Judge cannot provide more than one set of reasons for verdict. In R. v. Hui Lap Keung and Others [1989] 1 HKLR 261, the District Judge convicted the defendant after trial and delivered the reasons for verdict. The gist of the reasons for verdict was that the three main prosecution witnesses had in general given clear evidence, and their performance under cross-examination did not raise any doubts about their evidence. The judge found that, on the basis of the prosecution witnesses’ evidence and the documentary evidence of the case, there was no reasonable doubt; and convicted the three defendants. The judge subsequently handed down his reasons for verdict consisting of ten pages.", "zh-HK": "上訴法庭曾經就未修改的第 80 條多次說明區域法官不可以提供多過一份的判決理由。在 R v. Hui Lap Keung and others 一案 [1989] 1 HKLR 261一案，區域法院法官在審訊結束後裁定被告人罪名成立及宣告判決理由。該判決理由的大意是三名主要的控方證人大致上提供了清晰的證供及沒有在接受盤問時令人對他們的證供產生懷疑，法官根據他們的證供及案件的書面證供，在毫無合理疑點下裁定三名被告人罪名成立。法官之後再頒下一份十頁紙的判決理由。" } }, { "doc_id": 143, "seg_id": 43, "translation": { "en": "The Court of Appeal took the view that the judge should not deliver two sets of reasons for verdict; the best approach was for the judge to deliver the verdict and the reasons for verdict at the same time. If the circumstances did not permit the judge to do so, he should deliver the verdict only. As counsel for the appellant did not ask the Court of Appeal to disregard the written reasons for verdict consisting of ten pages, hence the Court of Appeal did not rule on this issue.", "zh-HK": "上訴法庭認為法官不應作出兩份判決理由及認為最佳的做法是法官在宣告判決時同時宣告判決理由，如情況不許可的話，法官應該只宣告判決。由於該案的上訴人代表律師並沒有要求上訴法庭不考慮該十頁紙的判決，上訴法庭因此沒有就這項議題作出裁決。" } }, { "doc_id": 143, "seg_id": 44, "translation": { "en": "In R v. Law Chi Kong CACC 491 of 1987, the District Judge convicted the defendant after trial. He said he convicted the defendant as charged on the basis of the evidence called. Subsequently, the judge delivered another set of reasons for verdict. The Court of Appeal took the view that the judge should not deliver two sets of reasons for verdict, and for this reason it did not consider the other set of reasons for verdict delivered by the judge after the conviction.", "zh-HK": "在R v. Law Chi Kong CACC 491 of 1987一案，一名區域法院法官聆訊案件後裁定被告人罪名成立，他說根據傳召的證供裁定被告人干犯控罪。之後，法官再提交一份判決理由書。上訴法庭認為不應該作出兩份判決理由，故此上訴法庭不考慮法官在定罪後所作出的另外一份判決理由。" } }, { "doc_id": 143, "seg_id": 45, "translation": { "en": "In The Queen v. Lam Kwok Hung [1989] 2 HKLR 184, the Court of Appeal described the trial judge’s delivery of two sets of reasons for verdict as “improper procedure”.", "zh-HK": "在The Queen v. Lam Kwok Hung [1989] 2 HKLR 184 一案，上訴法庭形容法官作出兩份判決理由是「不適當的程序」。" } }, { "doc_id": 143, "seg_id": 46, "translation": { "en": "Reasons for verdict", "zh-HK": "判決理由" } }, { "doc_id": 143, "seg_id": 47, "translation": { "en": "We do not accept the respondent’s view that the trial judge only delivered a verdict of guilty after trial, but not the reasons for verdict. As noted in paragraph 16 of this Judgment, apart from delivering a verdict of guilty, the trial judge also delivered the reasons for verdict. The trial judge said he would give his reasons for verdict in “two to three sentences” and “explained the conviction in two to three sentences”, and would formally deliver his detailed reasons for verdict on a later date. However, whichever ways one looks at it, what the judge delivered at that time were the reasons for verdict, although he was minded to give his detailed reasons for verdict on a later date.", "zh-HK": "本庭不同意答辯人指馬法官在審訊結束後只是作出一個定罪判決，而不是作出判決理由的觀點。從本判案理由書第 16 段可見，馬法官除了宣告定罪判決外，還宣告判決理由，雖然他指他會以「兩三句」說出他的判決理由及只以「兩三句交代定罪」，並會在日後正式詳細交代他的判決理由，但從任何一個角度來看，馬法官當時所宣告的就是判決理由，他無非是想在日後作出一份詳細的判決理由而已。" } }, { "doc_id": 143, "seg_id": 48, "translation": { "en": "For the above reasons, we would decide this appeal solely on the basis of the reasons for verdict delivered on 17 November 2008. It is obvious that the trial judge did not specify in the relevant reasons for verdict why he accepted the two witnesses’ evidence. In Oriental Daily Publisher Ltd v. Commissioner for Television and Entertainment Licensing Authority (1997-98) HKCFAR 279, Chief Justice Li states clearly that the court needs to provide well-grounded reasons for verdict. The principles underlying the aforesaid requirement can be summarized as follows:", "zh-HK": "基於上述原因，本庭只會根據2008年11月17日的判決理由來理審本上訴。明顯地，有關的判決理由沒有說明馬法官為何接納兩名證人的證供。李國能首席法官在Oriental Daily Publisher Ltd v. Commissioner for Television and Entertainment Licensing Authority (1997-98) HKCFAR 279一案清楚說明法庭需要提供具理據的判決理由。有關要求的背後原則可以歸納為以下四點：" } }, { "doc_id": 143, "seg_id": 49, "translation": { "en": "the giving of reasons is an incident of judicial office;", "zh-HK": "司法人員的職責是要提供判決理由；" } }, { "doc_id": 143, "seg_id": 50, "translation": { "en": "to enable an appellate court to do its duty in considering an appeal by a convicted person against such a decision;", "zh-HK": "上訴法庭需要根據一份判決理由來審理上訴；" } }, { "doc_id": 143, "seg_id": 51, "translation": { "en": "to enable a convicted accused to make an informed and timely decision as to whether to exercise his right to appeal; and", "zh-HK": "被定罪的被告需要依賴一份判決理由來就他是否上訴作出有基礎及合時的決定；" } }, { "doc_id": 143, "seg_id": 52, "translation": { "en": "to reflect the public interest in the open and due administration of criminal justice.", "zh-HK": "法庭提供判決理由以反映公開及適當的刑事司法制度所涉及的公眾利益。" } }, { "doc_id": 143, "seg_id": 53, "translation": { "en": "See: Bruce on Criminal Procedure Vol 1 paragraph VII [153].", "zh-HK": "見：Bruce on Criminal Procedure Vol 1第7[153] 段。" } }, { "doc_id": 143, "seg_id": 54, "translation": { "en": "In Zhuo Cui Hao v. Ting Fung Yee [1999] 3 HKC 634, the trial judge merely stated in her reasons for verdict that the appellant’s case was unbelievable, without specifying which parts were unbelievable and why she found it unbelievable. The Court of Appeal set aside the verdict and ordered a retrial of the case.", "zh-HK": "在Zhuo Cui Hao v. Ting Fung Yee [1999] 3 HKC 634 一案，原審法官的判決理由只是說上訴人的案情不可信，但沒有說明哪一部分不可信及為何她認為上訴人的案情不可信。上訴法庭撤銷裁決及命令案件重審。" } }, { "doc_id": 143, "seg_id": 55, "translation": { "en": "We have to point out that not all the decisions which are not well-grounded will be set aside by the Court of Appeal. This depends on the complexity of the cases and the nature of the issues in dispute. In a more simple case, the Court of Appeal may make its decision on the basis of the facts of the case. However, the present case was not a simple one. The audio transcript of the two witnesses’ evidence consists of approximately sixty pages. The appellant’s counsel at trial cross-examined the two prosecution witnesses on the credibility of their evidence, and PW2’s evidence showed that she had failed to record in her note-book the contents of the conversation immediately after speaking with the appellant on the phone. Furthermore, the trial judge had failed to deal with PW3’s evidence in his reasons for verdict delivered on 17 November 2007. We were of the view that in the absence of any well-grounded reasons for verdict, we were unable to rule on the issue of whether it was proper for the trial judge to accept the two witnesses’ evidence. As we considered that there were indeed material irregularities in this case, we allowed the appeal and quashed the conviction.", "zh-HK": "本庭必須指出並不是任何欠缺詳細理據的判決都必然會被上訴法庭撤銷，這是要視乎案件的複雜程度及所爭議的議題的性質而定。在一宗比較簡單的案件，上訴法庭是可能根據其案情作出裁決。但本案並不是一宗簡單的案件，兩名證人的證供的錄音謄本約有 60 頁，上訴人代表律師的盤問涉及兩名證人的證供的可信性，第二證人的證供亦顯示她在與上訴人通電話後沒有即時在她的記事簿內記錄兩人的談話內容。另外，馬法官在 2007 年 11 月 17 日的判決理由內亦沒有處理第三證人的證供。本庭認為在欠缺一份具理據的判決理由的情況下，本庭是不可以就馬法官接納兩名證人的證供是否正確這一事作出裁決。由於本庭認為案件確實出現具關鍵性的不當情況，故此本庭批准上訴及撤銷定罪。" } }, { "doc_id": 143, "seg_id": 56, "translation": { "en": "Senior Public Prosecutor Catherine Ko, who represented the respondent, asked this court to order a retrial of the 4th charge. She did not ask for a retrial of the 2nd charge. Counsel for the appellant Richard Wong opposed the retrial. The reason for our quashing the conviction was not that the prosecution’s evidence was insufficient. Accordingly, though the appellant had already served about one year of the sentence, we held that, in the public interest, there must be a retrial on the 4th charge.", "zh-HK": "代表答辯人的高級檢控官高寶翠要求本庭頒令重審第四項控罪，但她不要求重審第二項控罪。代表上訴人的黃達華大律師反對重審。雖然上訴人已服了約一年的刑期，但由於本庭撤銷定罪的理由不是因為控方的證據不足，基於公眾利益，本庭裁定第四項控罪須重審。" } }, { "doc_id": 143, "seg_id": 57, "translation": { "en": "Alternative charges", "zh-HK": "交替控罪" } }, { "doc_id": 143, "seg_id": 58, "translation": { "en": "Apart from convicting the appellant on the 2nd and 4th alternative charges, the trial judge also ordered that the 1st and 3rd charges be placed on court file. The appellant did not appeal against this decision.", "zh-HK": "馬法官除了裁定第二及第四項交替控罪罪名成立，亦命令第一及第三項控罪須保留在法庭的檔案內。上訴人並沒有就這一點提出上訴。" } }, { "doc_id": 143, "seg_id": 59, "translation": { "en": "In R v. Mackell [1982] 74 Cr. App R 27, it is ruled that the Court of Appeal only has jurisdiction to deal with appeals against conviction and sentence. Since the appellant has not appealed against the way that the trial judge dealt with the 1st and 3rd charges, we do not have the jurisdiction to deal with this issue. Nevertheless, we will take this opportunity to make the following comments: We are of the view that the trial judge, in ordering that the 1st and 3rd charges be placed on court file, indicated really that he was not making any orders on the two charges. It is the usual approach in dealing with cases in which one of the charges is an alternative charge, so that the Court of Appeal can still convict the appellant on the alternative charge if it quashes the conviction on appeal; see R. v. Tsui Fung [1996] 1 HKCLR 107.", "zh-HK": "根據R v. Mackell [1982] 74 Cr. App R 27一案，上訴法庭只是在一宗涉及定罪及判刑的上訴才有司法權力審理案件。由於上訴人沒有就馬法官處理第一及第三項控罪的方法提出上訴，故此本庭沒有司法權力審理這項議題，但本庭藉此機會作出以下的評論。本庭認為馬法官說他將第一及第三項控罪保留在法庭檔案內其實是表示他不就第一及第三項控罪作出任何命令，這是在涉及兩項控罪，而其中一項是交替控罪時的一般處理手法，理由是如定罪在上訴時被撤銷，上訴法庭仍具司法權力根據交替控罪定罪：見R v. Tsui Fung [1996] 1 HKCLR 107。" } }, { "doc_id": 143, "seg_id": 60, "translation": { "en": "Costs Order", "zh-HK": "訟費命令" } }, { "doc_id": 143, "seg_id": 61, "translation": { "en": "The appellant applied for costs in this appeal relating to the 2nd charge. As we quashed the conviction on the 2nd charge and only ordered a retrial of the 4th charge, we considered that the appellant should have this set of costs. Costs to be taxed by the Registrar.", "zh-HK": "上訴人申請涉及本上訴的第二項控罪的訟費。本庭認為上訴人應獲得這項訟費：這是由於第二項控罪已經被撤銷，而本庭只是命令第四項控罪需要重審。訟費評核交由司法常務官處理。" } }, { "doc_id": 143, "seg_id": 62, "translation": { "en": "Ms Catherine Ko, Senior Public Prosecutor, for the Respondent", "zh-HK": "答辯人：由律政司高級檢控官高寶翠代表。" } }, { "doc_id": 143, "seg_id": 63, "translation": { "en": "Mr Richard Wong, instructed by Yung & Co., for the Appellant/Applicant", "zh-HK": "上訴人/申請人：由翁宗榮律師行轉聘黃達華大律師代表。" } }, { "doc_id": 144, "seg_id": 1, "translation": { "en": "Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案書：" } }, { "doc_id": 144, "seg_id": 2, "translation": { "en": "Facts of the case", "zh-HK": "案情" } }, { "doc_id": 144, "seg_id": 3, "translation": { "en": "The applicant pleaded guilty to one count of Trafficking in a Dangerous Drug, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance (‘the Ordinance’), Cap 134, before Deputy High Court Judge M. Poon (as she then was). The dangerous drug in question was 1,444.12 grammes of Methamphetamine Hydrochloride, commonly known as “Ice”. At the time in question, Customs Officer(s) intercepted the applicant at the gate of the departure hall of the Hong Kong International Airport and found on him upon search the dangerous drugs in question. Using 21 years as the starting point and reducing it by one third for his plea, Deputy Judge Poon eventually sentenced the applicant to 14 years’ imprisonment.", "zh-HK": "申請人在2005年6月30日在高等法院原訟法庭暫委法官潘敏琦(當時官階)席前承認一項「販運危險藥物」罪，違反《危險藥物條例》(香港法例134章) 第4(1)(a)及(3) 條。有關毒品是1,444.12克的甲基苯丙胺鹽酸鹽，即俗稱「冰」的毒品。案發時海關關員在香港國際機場離境大堂機閘截停申請人，並在他身上搜獲有關涉案毒品。潘法官採用21年的量刑基準，因為申請人認罪，故此扣減三分之一刑期，最終刑期為14年監禁。" } }, { "doc_id": 144, "seg_id": 4, "translation": { "en": "Application for leave to appeal out of time", "zh-HK": "延展上訴期限" } }, { "doc_id": 144, "seg_id": 5, "translation": { "en": "On 20 September 2011, the applicant asked this court to grant him extension of time to apply for an appeal against his sentence.", "zh-HK": "申請人在2011年9月20日要求本庭延展他提出針對刑期的上訴許可申請的期限。" } }, { "doc_id": 144, "seg_id": 6, "translation": { "en": "The factors that the Court will consider in hearing an application for an extension of time are:", "zh-HK": "法庭處理延展上訴期限所需要考慮的要素是:" } }, { "doc_id": 144, "seg_id": 7, "translation": { "en": "How long is the delay;", "zh-HK": "延誤的時間；" } }, { "doc_id": 144, "seg_id": 8, "translation": { "en": "Whether the applicant has a reasonable explanation for the delay; and", "zh-HK": "申請人是否對延誤作出合理的解釋；及" } }, { "doc_id": 144, "seg_id": 9, "translation": { "en": "Whether the applicant has sufficient grounds of appeal.", "zh-HK": "申請人是否具有充分的上訴理據。" } }, { "doc_id": 144, "seg_id": 10, "translation": { "en": "View of the Court", "zh-HK": "本庭的意見" } }, { "doc_id": 144, "seg_id": 11, "translation": { "en": "In this case, the application was made more than 6 years out of time, which is a very lengthy period. In 2005 when the applicant pleaded guilty, he was represented and thus he ought to have known his right to appeal. The applicant explained that the reason for his delay was that prior to this, he failed to find a case justifying his appeal. We do not consider this to be a reasonable explanation.", "zh-HK": "在本案，申請人延誤的時間超過六年,這是一段非常長的時間。申請人在2005年認罪時是有律師代表的，所以他理應知道其上訴權利。申請人解釋他延誤原因是之前沒有找出支持他申請的案例。本庭不認為這是合理解釋。" } }, { "doc_id": 144, "seg_id": 12, "translation": { "en": "As of the grounds of appeal, Deputy Judge Poon referred to the case R v Darwin Ibrahim, CACC 112/2003 in which 24 years was the starting point. In that case, the Defendant was carrying 1.86 kilogrammes of “Ice” from Shenzhen to overseas via Hong Kong. It was a case of international trafficking.", "zh-HK": "至於上訴理據，潘法官參考香港特別行政區訴Darwin Ibrahim，CACC 112/2003一案的24年量刑基準。在該案，被告人把1.86公斤的「冰」從深圳經香港運往外地。案件涉及國際販毒因素。" } }, { "doc_id": 144, "seg_id": 13, "translation": { "en": "The applicant cited two cases, namely, R v Chong Vui Leong, CACC 351/2008 and R v Chok King Foh, CACC 351/2008. In the said two cases, Chong Vui Leong and Chok King Foh were respectively the 1st and 2nd Defendant of the case. The two were intercepted by Customs officers at the passenger boarding bridge at the Hong Kong International Airport. 1,197.99 grammes of “Ice” was found upon search on the 1st Defendant and 1,685.51 grammes of “Ice” was found upon search on the 2nd Defendant. The two pleaded guilty to the charge. Deputy High Court Judge D. Pang (as he then was) took 22 years and 24 years respectively as the starting point of the sentences for two defendants. The two defendants lodged an appeal. The Court of Appeal was of the view that the starting point of the sentences for the two should respectively be 19 years and 3 months and 21 years.", "zh-HK": "申請人引用兩宗案例，即香港特別行政區訴蔣偉良(Chong Vui Leong)，CACC 351/2008 及香港特別行政區訴卓慶和(Chok King Foh)，CACC 351/2008。在該兩宗案例，蔣偉良和卓慶和分別是案件的第一及第二被告人。他們兩人在香港國際機場旅客登機橋上被海關關員截停。海關關員從第一被告人身上搜獲1,197.99克的「冰」及在第二被告人身上搜獲1,685.51克的「冰」。他們兩人承認控罪。高等法院原訟法庭暫委法官彭偉昌(當時官階)分別以22年和24年監禁作為兩名被告人的量刑基準。兩名被告人提出上訴。上訴法庭認為兩名被告人的量刑基準應該分別為19年3個月及21年。" } }, { "doc_id": 144, "seg_id": 14, "translation": { "en": "The applicant here pointed out that the quantity of 1,444.12 grammes of “Ice” he trafficked was less than the 1,685.31 (grammes of) “Ice” trafficked by Chok King Foh, but both he and Chok King Foh had the same starting point of 21 years’ imprisonment. He considered that to be unfair to him and thus asked for reduction of sentence.", "zh-HK": "在本案申請人指出他販運的1,444.12克「冰」的數量是少過卓慶和所販運的1,685.51「冰」，但他與卓慶和同樣是以21年監禁為量刑基準，他認為這對他不公道，故此要求減刑。" } }, { "doc_id": 144, "seg_id": 15, "translation": { "en": "More than 18 years for trafficking in “Ice” of over 600 grammes was the guideline laid by the Court of Appeal in AG v Ching Kwok Hung [1991] 2 HKLR 125.", "zh-HK": "在AG v. Ching Kwok Hung [1991] 2 HKLR 125一案，上訴法庭就販運「冰」頒發量刑指引：超過 600 克的「冰」，刑期是 18 年以上。" } }, { "doc_id": 144, "seg_id": 16, "translation": { "en": "It has been said in many cases by the Court of Appeal that the court must take into account the facts of the case when considering sentence, and that defendants in other cases getting a sentence lighter than the applicant’s does not show that the sentence on the applicant was unsafe.", "zh-HK": "上訴法庭曾在多宗案例中說明，法庭必須根據案情來量刑，就算其他被告人在同類案件中獲得比申請人較輕的刑期，這也不表示申請人的刑期是不穩妥的。" } }, { "doc_id": 144, "seg_id": 17, "translation": { "en": "We acknowledge that the length of sentence for trafficking in a dangerous drug is based upon the quantity of dangerous drugs being trafficked. Generally speaking, personal background of the defendant of this kind of cases does not serve as reason for reduction of sentence. The court thus is to see to it that the sentence is consistent with the relevant sentencing guidelines. However, on the other hand, sentencing is not a mechanical operation and the judge has, within the sentencing guideline, discretion in setting an appropriate length.", "zh-HK": "本庭接納販運毒品的刑期是根據毒品的份量而作出。一般來說這類案件的被告人的個人背景是不會成為減刑理由的,故此法庭是有需要將有關的刑罰保持一致，但同時，量刑並非是一種機械式的運作，在販運毒品量刑指引的框架下，法官是有酌情權來作出適當的量刑。" } }, { "doc_id": 144, "seg_id": 18, "translation": { "en": "In HKSAR v an unknown person alias Stojanovic Milka and Skopljak Sara, CACC 110/2010, the defendant was charged with trafficking in 1,484.01 grammes of “Ice”. In that case, the defendant came to Hong Kong from Malaysia by plane. The trial judge took 22 years as the starting point and increased the sentence to 24 years because of the aggravating factor that it was a case of international trafficking. The Court of Appeal was of the view that the appropriate term before considering the aggravating factor should be 20 years, and that two years was to be added for the international trafficking factor, making a 22 years starting point.", "zh-HK": "在HKSAR v. an unknown person alias Stojanovic Milka and Skopljak Sara, CACC 110/2010 一案，被告人被控販運1,484.01 克的「冰」。在該案，被告人從馬來西亞乘飛機到香港。原審法官採用 22 年的量刑基準，另外，由於案件涉及國際販運毒品的因素，故此將量刑基準調高至 24 年。上訴法庭認為在未考慮加刑因素前，適當的刑期應該是 20 年的監禁。由於案件涉及國際販毒因素，因此，需要加刑兩年，故此量刑基準為 22 年。" } }, { "doc_id": 144, "seg_id": 19, "translation": { "en": "We are of the view that the starting point of 21 years taken by Deputy Judge Poon did not substantially deviate from the abovementioned sentencing guidelines. The applicant failed to show that there are sufficient grounds of appeal.", "zh-HK": "本庭認為潘法官採用 21 年的量刑基準並沒有嚴重偏離上述的量刑原則。申請人未能顯示他具有充分的上訴理據。" } }, { "doc_id": 144, "seg_id": 20, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 144, "seg_id": 21, "translation": { "en": "For the above reasons, the application is refused.", "zh-HK": "基於上述理由，本庭拒絕他的申請。" } }, { "doc_id": 144, "seg_id": 22, "translation": { "en": "The Applicant, appearing in person, present", "zh-HK": "答辯人：由律政司檢控官傅悅耳代表。" } }, { "doc_id": 144, "seg_id": 23, "translation": { "en": "Fu Yuet Yee, Betty, Public Prosecutor, of the Department of Justice, for the Respondent", "zh-HK": "申請人：無律師代表, 親自出席。" } }, { "doc_id": 145, "seg_id": 1, "translation": { "en": "It was charged that the Applicant, on 4 February 2013, together with Chan Tsz-leung (Chan), having entered as trespassers the Green River Restaurant, Shop G2-2D&2E, Ground Floor, Fortuna House, 4 Tung Chi Street, Kwai Chung, New Territories, attempted to steal therein, contrary to section 11(1)(b) and (4) of the Theft Ordinance. On 21 October 2013, the Applicant pleaded guilty in the District Court before District Judge Sham and was sentenced to two years’ imprisonment.", "zh-HK": "申請人被控於2013年2月4日，連同陳子良（陳），作為侵入者在進入新界葵涌童子街4號福蔭大廈地下G2-2D及2E鋪翠河餐廳後，企圖在該處偷竊，違反《盜竊罪條例》第11(1)(b)及 (4) 條。2013年10月21日，申請人在區域法官沈小民席前認罪，被判監兩年。" } }, { "doc_id": 145, "seg_id": 2, "translation": { "en": "On 16 May 2013, Chan pleaded guilty before District Judge Sham and was sentenced also to two years’ imprisonment.", "zh-HK": "2013年5月16日，陳在沈法官席前認罪，同樣被判監兩年。" } }, { "doc_id": 145, "seg_id": 3, "translation": { "en": "The Applicant now applies for leave to appeal against sentence. On 20 May 2014, having heard the application, we refused it and our reasons are given below.", "zh-HK": "申請人現針對刑罰提出上訴許可申請。2014年5月20日，經聆訊後，本庭拒絕申請，理由如下。" } }, { "doc_id": 145, "seg_id": 4, "translation": { "en": "The Facts", "zh-HK": "案情" } }, { "doc_id": 145, "seg_id": 5, "translation": { "en": "In the small hours of the material day, the restaurant in question was already closed. The person-in-charge of the restaurant came to know from the anti-theft devices that someone had sneaked into the restaurant in an attempt to burgle, and therefore he made a report to the police. In response to the report, police officers attended the scene and found Chan pulling down the roller shutter, and they apprehended him instantly. The police officers later found at the back door of the restaurant a handcart, on which there were a safe belonging to the restaurant and a badminton bag. The safe contained HK$99,000.00 in cash and the badminton bag contained some burglary tools, namely a crowbar and two screwdrivers. At that time, the police officers found no sign of the Applicant.", "zh-HK": "案發當日凌晨時份，涉案餐廳已關門，餐廳負責人透過防盜裝置得知有人潛入餐廳企圖爆竊，於是報警。警方人員接報到場，發現陳正在把捲閘拉下，迅即把他逮住。警員後來在餐廳後門發現一輛手推車，上面載有屬於餐廳的夾萬和一個羽毛球袋，夾萬裡有現金HK$99,000.00，而羽毛球袋裡則有一些爆竊工具，即一枝鐵筆和兩把螺絲批。當時警員並無發現申請人的踪影。" } }, { "doc_id": 145, "seg_id": 6, "translation": { "en": "The police officers immediately arrested Chan and administered a caution to him. Under caution, Chan said that he committed the offence with an accomplice who had long escaped. After investigation, the police found that the Applicant had driven Chan to the vicinity of the scene in a light goods vehicle before the offence was committed, and gained entry into a car park by using an Octopus card. The registered owner of the light goods vehicle was the younger brother of the Applicant. On 25 June 2013, the police arrested the Applicant. The Applicant admitted the offence under caution, and alleged that it was Chan who had approached him and asked him to act together and that he was responsible for driving the vehicle and acting as a lookout. Chan promised to pay him $500 as reward after the job was accomplished. Apart from acting as a lookout, the Applicant also assisted Chan in moving the safe of the restaurant onto the handcart. Later, on catching a glimpse of the strobe light of the police vehicle, the Applicant escaped from the scene immediately. The light goods vehicle in question was actually owned by the Applicant. The police later also seized from the vehicle the Octopus card used for gaining entry into the car park.", "zh-HK": "警員隨即拘捕陳並施行警誡，警誡下陳說與一名同黨犯案，而同黨早已逃脫。調查後警方發現申請人在案發前有駕駛一輛輕型貨車載陳到現場附近，並曾用八達通卡進入一個停車場。該輕型貨車的登記車主是申請人的弟弟。2013年6月25日，警方拘捕申請人，申請人警誡下承認控罪，並指是陳找他一同行事，負責駕駛車輛和把風。陳承諾在事成後會給他500元作報酬。除了把風外，申請人也協助陳把餐廳的夾萬搬上手推車，後來瞥見警車的警示燈，便立即逃離現場。涉案的輕型貨車實為申請人所擁有，警方事後亦在車上檢取了該張用來進停車場的八達通卡。" } }, { "doc_id": 145, "seg_id": 7, "translation": { "en": "The restaurant did not suffer any loss in the incident.", "zh-HK": "事件中餐廳並無損失。" } }, { "doc_id": 145, "seg_id": 8, "translation": { "en": "Mitigation", "zh-HK": "求情" } }, { "doc_id": 145, "seg_id": 9, "translation": { "en": "At the time of sentencing, the Applicant was 39 years old, married, and had a son and a daughter. He had a record of fourteen convictions, nine of which were for theft. For these nine counts of theft, the Applicant was sentenced in Tsuen Wan Magistracy (TWCC 2209/2013) to four months’ imprisonment on 10 September 2013. The Applicant committed the offence because of financial straits. He only played a relatively secondary role in this case. He also pleaded guilty frankly, and the restaurant in question did not suffer any loss.", "zh-HK": "申請人判刑時39歲，已婚，育有一子一女。他有十四次定罪記錄，其中九項為盜竊罪，就這九項盜竊罪，申請人在2013年9月10日被荃灣裁判法院（TWCC 2209/2013）判監四個月。申請人犯案原因是經濟拮据。在本案中他只擔任較為次要的角色，他亦坦白認罪；涉案餐廳也沒有損失。" } }, { "doc_id": 145, "seg_id": 10, "translation": { "en": "Reasons for Sentence of the Trial Judge", "zh-HK": "原審法官判刑理由" } }, { "doc_id": 145, "seg_id": 11, "translation": { "en": "The trial judge first adopted a starting point of two and a half years’ imprisonment for burglary of non-domestic premises. He found that the Applicant’s involvement in a joint enterprise with Chan to commit the offence was an aggravating factor. Furthermore, the trial judge saw the photographs taken at the scene and found that both the roller shutter and the switch box had signs of having been pried by using a crowbar or a screwdriver, and this also aggravated the offence. For these two aggravating factors, the trial judge adjusted the starting point upwards by a total of six months to three years. The Applicant could receive a one-third discount for his guilty plea, and the final sentence was two years after discount.", "zh-HK": "原審法官首先採納適用於非住宅入屋犯法案件的兩年半監禁作判刑基準。他認為申請人伙同陳一起犯案，屬加刑因素之一。此外，原審法官看過現場拍的照片片，發現餐廳的捲閘和開啟箱均有被鐵筆或鏍絲批撬過的痕跡，也屬罪加一等。就此兩項加刑因素，原審法官將量刑基準調高共六個月至三年。由於申請人認罪，可獲三分之一折扣，經扣減後，最終刑期為兩年。" } }, { "doc_id": 145, "seg_id": 12, "translation": { "en": "The trial judge therefore sentenced the Applicant to two years’ imprisonment, which was to run consecutively with the four months’ sentence in the other case, the magistrates’ court case TWCC 2209/2013.", "zh-HK": "原審法官於是判申請人兩年監禁，刑期與另一宗裁判法院案件TWCC 2209/2013的四個月判刑分期執行。" } }, { "doc_id": 145, "seg_id": 13, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 145, "seg_id": 14, "translation": { "en": "The restaurant in question was not domestic premises. Based on relevant precedents, the starting point is two and a half years’ imprisonment, to which, Mr Lo, counsel for the Applicant, has no objection.", "zh-HK": "涉案的餐廳並非住宅，根據有關案例，量刑的起點為兩年半監禁。對此，代表申請人的羅大律師並無異議。" } }, { "doc_id": 145, "seg_id": 15, "translation": { "en": "The grounds of appeal of the Applicant can be reduced to three major points.", "zh-HK": "申請人的上訴理由可歸納為三個重點。" } }, { "doc_id": 145, "seg_id": 16, "translation": { "en": "The first major point of appeal is that the trial judge erred in treating “the use of tools to damage a place for enabling the thief to gain entry into the premises” as an aggravating factor, because this factor was already taken account of in the original starting point of two and a half years’ imprisonment. Furthermore, the tools used in this case were just tools commonly used in committing this crime, and there was nothing particularly serious about them. Given that the Applicant had made a clean breast of everything, he had sincerely co-operated with the police, he was not the mastermind, and his criminal record was not as bad as Chan’s, the judge should not have enhanced the sentence by six months even though he jointly committed the offence with Chan.", "zh-HK": "第一個上訴重點是，原審法官錯誤地將“利用工具損毀地方而令賊人進入單位”為加刑因素，因為原來的兩年半量刑基準已包含了這方面的原素。再者，在本案使用的工具只是一般犯案工具，沒什麼特別嚴重的地方。縱使申請人與陳一同犯案，但考慮到他將事件始末和盤托出，坦誠與警方合作，而且他不是主謀，案底亦沒陳那麼重，法官不應再加刑六個月。" } }, { "doc_id": 145, "seg_id": 17, "translation": { "en": "Mr Lo cited paragraphs 8-9 in Secretary for Justice v Tsang Hon-yin Anthony, CAAR 5/2004 (16 December 2004) and paragraph 9 in HKSAR v Fan Kit-hung, CACC 62/2009 (14 July 2009) in support of the arguments of the Applicant.", "zh-HK": "羅大律師引援Secretary for Justice v Tsang Hon-yin Anthony，CAAR 5/2004（2004年12月16日）第8-9段，及HKSAR v Fan Kit-hung，CACC 62/2009，（2009年7月14日）等9段以支持申請人的論點。" } }, { "doc_id": 145, "seg_id": 18, "translation": { "en": "In Secretary for Justice v Tsang Hon-yin Anthony, the Court of Appeal first confirmed in paragraph 8 that the starting point for sentence in a case of burglary of non-domestic premises in the absence of aggravating or mitigating factors was two and a half years’ imprisonment; and then cited in paragraph 9 another case HKSAR v Sim Ka-wing, CACC 450/2000 (30 May 2001) to further explain that the cases to which this starting point was applicable usually involved a measure of planning, and thus a degree of premeditation and planning was already built into the starting point.", "zh-HK": "在SJ v Tsang Hon-yin Anthony一案，上訴法庭先在第8段確認涉及非住宅的入屋犯法罪，在沒有加刑或減刑的因素下，量刑起點為兩年半監禁；然後在第9段引用另一案件HKSAR v Sim Ka-wing, CACC 450/2000，（2001年5月30日），進一步說明，該量刑起點所適用的案件通常都會涉及計劃，所以某程度的預先策劃和計劃已經包含在該量刑起點內。" } }, { "doc_id": 145, "seg_id": 19, "translation": { "en": "15.\tIn HKSAR v Fan Kit-hung, the Court of Appeal referred to the aggravating factors set out in another case HKSAR v Cheng Wai-kai, CACC 338/2007 (11 June 2008): (1) the offence is carefully planned and skilfully executed involving the use of heavy instruments or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous convictions of a similar nature, and (6) the offender commits multiple offences.", "zh-HK": "在HKSAR v Fan Kit-hung一案，上訴法庭提到另一案件HKSAR v Cheng Wai Kai，CACC 338/2007，（2008年6月11日），所列出的加刑因素：（1）罪行是經過精心策劃，並技巧地以重型工具或器材來執行；（2）犯案者兩人或以上；（3）罪行針對富有的地點或貴重的財物；（4）犯案者是專業竊賊，而非機會主義者；（5）犯案者有前科，特別是性質相似的罪行；（6）犯案者干犯多項罪行。" } }, { "doc_id": 145, "seg_id": 20, "translation": { "en": "16.\tWhat the Court of Appeal referred to in these cases are all established legal principles, but they are of no assistance to the Applicant. As the trial judge rightly pointed out, the use of tools to commit the offence is an aggravating factor. Furthermore, although the Applicant was not the mastermind, he acted in collusion with Chan in committing the offence which involved planning beforehand and that is also an aggravating factor (see point (2) in the preceding paragraph). This court endorses the trial judge’s enhancing the sentence by six months.", "zh-HK": "上訴法庭在這些案件所提及的都是確立的法律原則，但對申請人並無幫助。如原審法官正確地指出，利用工具犯案是加刑的因素。另外，雖然申請人並非主謀，但他與陳有預謀地伙同犯案，這亦是加刑的因素：見上一段第 (2) 點。本庭認同原審法官加刑六個月的做法。" } }, { "doc_id": 145, "seg_id": 21, "translation": { "en": "17.\tThe second major point of appeal is that it is unfair for the trial judge not to enhance the sentence of Chan for using tools to commit the offence and for jointly committing the offence with another person, while enhancing the sentence of the Applicant for these reasons.", "zh-HK": "第二個上訴重點是，原審法官並無以陳因使用工具犯案及共同犯罪等而加刑，但卻以這些理由而對申請人加刑，這是有欠公允。" } }, { "doc_id": 145, "seg_id": 22, "translation": { "en": "As stated above, Chan was sentenced on 16 May 2013. The trial judge adopted the same starting point, namely two and a half years’ imprisonment and, taking into consideration the fact that Chan was a habitual offender, he enhanced the sentence by six months. However, the trial judge found that doubt existed as to whether or not Chan committed the offence jointly with another person, and therefore he did not use it as a reason to enhance the sentence. Finally, since Chan pleaded guilty, the trial judge gave him a one-third discount and sentenced him to two years’ imprisonment.", "zh-HK": "如上文所述，陳是在2013年5月16日被判刑。原審法官同樣以兩年半為量刑基準，考慮到陳是積犯，於是加刑六個月。但是，原審法官對陳是否伙同別人一同犯案，認為有疑點，所以沒有以此為加刑理由。最後，因陳認罪，原審法官給予三分之一的扣減，判他監禁兩年。" } }, { "doc_id": 145, "seg_id": 23, "translation": { "en": "When Chan was sentenced by the trial judge, the Applicant had not yet been arrested. The trial judge was not aware of the existence of the Applicant, and therefore he did not use the fact that Chan committed the offence jointly with another person as a reason for sentence enhancement. The trial judge also did not take the burglary tools as an aggravating factor because, as it can be seen from his Reasons for Sentence, there was no evidence to prove that Chan had ever used those tools for burglary. The trial judge cannot be criticised for not taking these as aggravating factors.", "zh-HK": "當陳被原審法官判刑時，申請人還沒有被拘捕，原審法官也不知道申請人的存在並，所以沒有以伙同犯案為加刑理由。原審法官也沒有以爆竊工具為加刑因素，因為從他的判刑理由書看來，並無證據證明陳曾使用那些工具來爆竊。原審法官沒有以這些為加刑因素，是無可厚非的。" } }, { "doc_id": 145, "seg_id": 24, "translation": { "en": "Mr Lo submitted that the Applicant had made a clean breast of everything but was affixed with a degree of culpability more serious than Chan’s, and that it was very unfair to him. Yet, as stated above, the trial judge sentenced Chan to two years’ imprisonment on the basis of the evidence available and the circumstances present at the time. Even if the sentence imposed on Chan is lenient, it does not mean that the Applicant can have a reduction of sentence automatically: See HKSAR v Wong Kam [2013] 1 HKLRD 39 and HKSAR v Bunloun Jantakarn & Ors, CACC 397 & 466/2007 (19 August 2008). More importantly, when handling the Applicant’s appeal, this court will not compare his sentence with Chan’s to decide whether his sentence is appropriate or not. This court finds that the imposition of a sentence of two years’ imprisonment on Chan by the trial judge cannot constitute any unfairness to the Applicant.", "zh-HK": "羅大律師說，申請人和盤托出，卻招來比陳更重的罪責，對他十分不公道。可是，正如上文所述，原審法官只是基於當時的證據和情況來判陳監禁兩年，即使對陳是輕判，也不等於申請人可自動獲得減刑：見HKSAR v Wong Kam [2013] 1 HKLRD 39 及 HKSAR v Bunloun Jantakarn & Ors，CACC 397 & 466/2007，（2008年8月19日）。更重要的是，處理申請人的上訴時，本庭不會比較他和陳的刑期，來決定他的刑期是否恰當。本庭認為，原審法官判陳監禁兩年，不可能構成任何對申請人有不公的地方。" } }, { "doc_id": 145, "seg_id": 25, "translation": { "en": "The third major point of appeal is that it is truly improper for the trial judge not to give the Applicant a further discount for his frank confession that brought about his prosecution this time. The Respondent acknowledged that if the Applicant had not frankly confessed, the prosecution might not have sufficient evidence to have him convicted.", "zh-HK": "第三個上訴重點是，原審法官並無就申請人坦白供認而導致是次檢控給予額外扣減，實屬不妥。答辯人同意假如申請人不坦白招認，控方未必有足夠證據把申請人定罪。" } }, { "doc_id": 145, "seg_id": 26, "translation": { "en": "Yet, as the Court of Appeal pointed out in HKSAR v Ma Ming [2013] 1 HKLRD 806:", "zh-HK": "可是，正如上訴法庭在香港特別行政區訴馬明[2013] 1 HKLRD 806指出：" } }, { "doc_id": 145, "seg_id": 27, "translation": { "en": "32.\t本庭不反對在個別案件及在處理整體判刑時，法庭可以行使酌情權，因為被告人的坦白招認是唯一支持控罪的證據，而將整體判刑作出輕微調整。但該因素不支持法庭必需給予該類被告人超過三分一的額外刑期扣減的立場。在法庭沒有給予該類被告人超過三分一的額外刑期扣減時，該因素亦非可爭拗的上訴理由。\t“32.\tWhen dealing with individual cases and when considering the totality of the sentence, the court, in exercising its discretion, can take into account the fact that the frank confession of the defendant provides the only evidence which supports the charge or charges and therefore make minor adjustments to the total sentence.  To this we do not object.  However, this factor does not support the argument that this kind of defendants must be given a further discount over and above the one-third discount.  If the court does not give such defendants any discount in addition to the one-third discount, that does not constitute an arguable ground of appeal.", "zh-HK": "“" } }, { "doc_id": 145, "seg_id": 28, "translation": { "en": "原審法官因申請人承認控罪而給予他三分一的刑期扣減已包括了申請人和警方合作、自動招認及在法庭上承認控罪等因素。申請人不能以未能獲得超過三分一的額外刑期扣減而有合理投訴，更不能以此為上訴理由，要求減刑。馬大律師提出的這一點上訴理由不成立。”\t33.\tIn giving the one-third discount to the applicant upon his pleading guilty, the trial judge had already taken into account the applicant’s cooperation with the police, his voluntary confession and his guilty plea entered in court.  That he was denied a further discount in addition to the one-third discount cannot constitute a reasonable complaint, nor can it be a ground of appeal against sentence. This ground put forward by Mr Ma is not substantiated.”", "zh-HK": "33." } }, { "doc_id": 145, "seg_id": 29, "translation": { "en": "This court finds that the factors raised by Mr Lo were already subsumed within the discount received by the Applicant as a result of his guilty plea, therefore there is nothing improper for the trial judge not to give a further discount.", "zh-HK": "本庭認為，申請人認罪所獲得的扣減已包含羅大律師所提及的因素，因此原審法官沒有再額外減刑，並無不當。" } }, { "doc_id": 145, "seg_id": 30, "translation": { "en": "Finally, this court has to point out that a sentence of two years is not manifestly excessive, and there is no proper basis on which the Court of Appeal can interfere.", "zh-HK": "最後，本庭需要指出，兩年的刑期並非明顯過重，上訴法庭沒有任何合理基礎可以于預。" } }, { "doc_id": 145, "seg_id": 31, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 145, "seg_id": 32, "translation": { "en": "None of the grounds of appeal of the Applicant is substantiated. This court refuses his application for leave to appeal against sentence.", "zh-HK": "申請人的上訴理由無一成立，本庭拒絕其針對判刑的上訴許可申請。" } }, { "doc_id": 145, "seg_id": 33, "translation": { "en": "Mr Raymond H C Cheng, Senior Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官鄭凱聰代表。" } }, { "doc_id": 145, "seg_id": 34, "translation": { "en": "由法律援助署委派陳志成律師事務所轉聘大律師羅沛然代表。\tMr Lo Pui-yin, instructed by Messrs Chan & Co, C.S., assigned by Director of Legal Aid, for the Applicant.", "zh-HK": "申請人：" } }, { "doc_id": 146, "seg_id": 1, "translation": { "en": "Hon Yeung JA (giving the Reasons for Judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 146, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 146, "seg_id": 3, "translation": { "en": "The applicant Wong Kwong Shun was a Landscape Architect of the Housing Department. His duties included making recommendations to the housing project team about construction materials to be used in Housing Department projects. Between 25 January 2000 and 2 September 2001, in four Housing Department projects the applicant recommended using EPOX products supplied by Nikka Building Materials Limited (“Nikka Materials”).", "zh-HK": "申請人黃廣信是房屋署的園林建築師，其職責包括向房屋項目小組推薦房署工程需用的建築物料。2000 年1 月25 日至2001 年9 月2 日期間，申請人在四項房屋署工程中推薦使用由日華建材有限公司（“日華建材”）供應的EPOX產品。" } }, { "doc_id": 146, "seg_id": 4, "translation": { "en": "The prosecution alleged that when the applicant made the above recommendations, he did not disclose his close personal friendship with Madam Wong Chui-seung (黃翠嫦), one of the directors of Nikka Materials. The prosecution case was that the applicant’s act of recommending the EPOX products resulted in Nikka Materials enjoying an unfair advantage over other suppliers and also gave rise to conflict of interest on the part of the applicant.", "zh-HK": "控方指申請人在作出上述推薦時，沒有透露他和日華建材董事之一，即黃翠嫦女士的好朋友關係。控方指申請人推薦EPOX產品，令日華建材較其他供應商有不公平的優勢，亦和申請人有利益衝突。" } }, { "doc_id": 146, "seg_id": 5, "translation": { "en": "As a result of these events, the applicant was charged with one count of misconduct in public office. He pleaded not guilty and was tried before District Judge Patrick Li. He was convicted after trial and was sentenced to community service for 100 hours.", "zh-HK": "事件導致申請人被控一項藉公職作出不檢行為罪。申請人否認控罪，並在區域法院李翰良席前受審。結果申請人被裁定罪名成立及被判100小時社會服務令。" } }, { "doc_id": 146, "seg_id": 6, "translation": { "en": "The applicant applied for leave to appeal against conviction. After hearing, we dismissed his application, for reasons to be set out below.", "zh-HK": "申請人不服定罪，提出上訴許可申請，要求獲准就定罪上訴。經聆訊後，本庭駁回其申請，以下是本庭的判案理由。" } }, { "doc_id": 146, "seg_id": 7, "translation": { "en": "The prosecution case", "zh-HK": "控方的指控" } }, { "doc_id": 146, "seg_id": 8, "translation": { "en": "The prosecution case was straightforward and not in dispute. Nikka Materials was incorporated on 7 July 1999. Its shareholders were Nikka Technology and one Smartax Limited (“Smartax”), each holding 50% of the shares.", "zh-HK": "控方的案情簡單，亦是沒有爭議的。日華建材在1999年7月7日成立，股東包括日華科技和俊迪有限公司（“俊迪”），各佔50% 股權。" } }, { "doc_id": 146, "seg_id": 9, "translation": { "en": "Smartax was incorporated on 6 May 1999. Madam Wong Chui-seung was a director and the controlling shareholder. Another director was her mother Madam Law Wong Ying (羅煌英).", "zh-HK": "俊迪在1999年5月6日成立，控股董事為黃翠嫦女士，另一董事為其母親羅煌英女士。" } }, { "doc_id": 146, "seg_id": 10, "translation": { "en": "Madam Wong was a good friend of the applicant. Before the applicant joined the Housing Department, he and his wife Ma Siu Yee (馬紹儀) were already acquainted with Madam Wong and her husband Wong Chun Kuen (黃振權). The four of them had frequently gatherings and travelled together from time to time.", "zh-HK": "黃女士是申請人的好友，申請人和妻子馬紹儀在申請人加入房屋署前已認識黃女士和其丈夫黃振權。他們夫婦四人經常聚會，亦曾多次一起出外旅遊。" } }, { "doc_id": 146, "seg_id": 11, "translation": { "en": "Originally, the agent for the EPOX products was Nikka Technology, of which Mr. Lo Tik Tsan (勞狄贊) and his wife were the directors and controlling shareholders. In 1998, on account of the EPOX products, the applicant came to know Mr. Lo Tik Tsan. Subsequently, Mr. Lo told the applicant that he was having financial difficulties in marketing the EPOX products.", "zh-HK": "EPOX產品的原代理商是日華科技，其控股董事為勞狄贊夫婦。1998年申請人曾因EPOX產品而認識勞狄贊先生，其後勞先生告知申請人在開發EPOX產品的銷售遇到財政困難。" } }, { "doc_id": 146, "seg_id": 12, "translation": { "en": "Madam Wong was a housewife who had never dealt in any building materials business before, but after the applicant introduced her to Mr. Lo, she and her mother immediately set up Smartax. Smartax and Nikka Technology jointly established Nikka Materials, which then became the agent for the EPOX products. Soon after the establishment of Nikka Materials, the applicant recommended the EPOX products in the four Housing Department projects mentioned above.", "zh-HK": "黃女士是一名家庭主婦，從來沒有經營過任何建築材料生意，但經申請人介紹她給勞先生認識後，黃女士隨即和母親成立俊迪並以俊迪名義和日華科技成立日華建材，代理EPOX產品。日華建材成立不久，申請人便在上述四項房屋署工程中推薦EPOX產品。" } }, { "doc_id": 146, "seg_id": 13, "translation": { "en": "As an architect of the Housing Department, the applicant was bound by the provisions in the Civil Service Branch Circular regarding “conflict of interest”. The circular expressly provides that where a conflict of interest arises from a personal relationship/friendship between a Housing Department officer and a building materials supplier in a Housing Department project, the officer should declare the conflict and/or refrain from recommending the products of that supplier. A civil servant should also decline to provide assistance to his relatives and/or friends so that they will not enjoy an unfair advantage, and he must not acquire any interest or participate in any investment which is in conflict with his public office.", "zh-HK": "作為房屋署的建築師，申請人受制於公務員事務科就“利益衝突”有關通告內的條文。該通告列明如房署人員和房屋署工程建築物料供應商有私交/友好關係引致利益衝突，他應作出申報並/或避免推薦該供應商的產品。公務員亦應拒絕向親朋戚友提供協助，避免他們佔不公平優勢，更不能獲取與公職有利益衝突的利益或參與該等投資。" } }, { "doc_id": 146, "seg_id": 14, "translation": { "en": "The applicant did make a declaration about his investment, disclosing that he held 50% of the shares in one Centana Contracting Limited (“Centana”). At the same time, however, he said that he did not take part in the business operation of Centana.", "zh-HK": "申請人曾作出投資申報，表示他持有新立工程有限公司（“新立”）的50%股份，但他同時表示自己並沒有參與經營新立的業務。" } }, { "doc_id": 146, "seg_id": 15, "translation": { "en": "On 18 December 2000, the applicant declared that Centana was involved in certain environmentally friendly products and the merchants of those products might have some connection with the contractors of the Housing Department. However, the applicant said that this would not put him in the position of a conflict of interest because, in his official capacity, he could not possibly decide to use those products or approve such use.", "zh-HK": "2000年12月18日，申請人申報新立涉及一些環保產品而產品的商人可能涉及房署的承建商，但申請人表示事件不會引起他有利益衝突，原因是他不可能在公事上決定或批准使用該些產品。" } }, { "doc_id": 146, "seg_id": 16, "translation": { "en": "On 25 February 2000, the applicant applied to the Housing Department for permission to invest in the development of the EPOX products, but the application was refused on the ground that the proposed investment might involve a conflict, or might give rise to a potential conflict, with his public office.", "zh-HK": "2000年2月25日，申請人向房署要求獲准投資發展EPOX產品，但申請被拒，原因是該投資和其公職可能有或會引致潛在的利益衝突。" } }, { "doc_id": 146, "seg_id": 17, "translation": { "en": "Between 25 January 2000 and 2 September 2001 when the applicant on four occasions recommended the EPOX products, he never declared his personal friendship with Madam Wong or the conflict of interest arising from such relationship. It was only on 3 September 2001 that the applicant, in a memo to the Housing Department declaring interest, stated that he and a “Mrs B Wong – a director of Nikko Building Materials Ltd” were good friends. The applicant told the ICAC that Mr. Lo was short of money for developing the EPOX products and that the applicant had applied, although in vain, to the Housing Department for investing in the development of those products. The applicant also admitted that he was a friend of Madam Wong and her husband, that he introduced Madam Wong to Mr. Lo, and that subsequently they set up Nikka Materials.", "zh-HK": "申請人在2000年1月25日至2001年9月2日期間四次推薦EPOX產品時，都沒有申報他和黃女士的私交友好關係和該關係引致的利益衝突。申請人是在2001年9月3日才在一份向房署申報利益的便箋中表示他與一名“Mrs B Wong – Nikko Building Materials Ltd (‘日華建材’)董事”有好朋友關係。申請人有向廉政公署表示因勞先生欠缺資金發展EPOX產品，而他曾向房署申請投資發展該產品，但申請遭拒。申請人亦承認和黃女士夫婦友好，而更將黃女士介紹給勞先生認識而其後他們才成立日華建材。" } }, { "doc_id": 146, "seg_id": 18, "translation": { "en": "The prosecution took the stance that, by failing to declare his relationship with Madam Wong, the applicant was in breach of the Civil Service Branch Circular on “conflict of interest”. The prosecution also alleged that the recommendation of the EPOX products by the applicant would give Nikka Materials an unfair advantage over other suppliers.", "zh-HK": "控方的立場是申請人沒有申報他和黃女士的關係，違反公務員事務科的有關“利益衝突”的通告。控方亦指申請人推薦EPOX產品會令日華建材比其他供應商佔有不公平的優勢。" } }, { "doc_id": 146, "seg_id": 19, "translation": { "en": "The Housing Department officers stated clearly in their evidence that the applicant did not declare his friendship with Madam Wong when he recommended the EPOX products, and that, had the applicant made the declaration, someone else would have been assigned to replace him in respect of the relevant projects and his recommendations would have been more closely scrutinized.", "zh-HK": "房署的職員作供時都明確表示申請人在推薦EPOX產品時，沒有申報他和黃女士的友好關係；而假若申請人有作出申報，申請人會被調離有關公程由其他人替代而申請人的推薦亦會遭更小心的審議。" } }, { "doc_id": 146, "seg_id": 20, "translation": { "en": "Applicant’s evidence", "zh-HK": "申請人的證供" } }, { "doc_id": 146, "seg_id": 21, "translation": { "en": "The applicant argued that even though they were two to three times more expensive than other applicable products, the EPOX products should still be recommended because they were of superior quality.", "zh-HK": "申請人指EPOX產品優越，雖然其價錢較其他適用產品貴2至3倍，仍應受推薦。" } }, { "doc_id": 146, "seg_id": 22, "translation": { "en": "The applicant said that Mr. Lo had asked him whether he was interested in investing in his company and the applicant had replied in the negative. In early 1999 Mr. Lo asked him whether he was willing to invest in the EPOX products. He indicated that Mr. Lo did not have to wait for his decision, but at the same time he introduced Madam Wong to Mr. Lo. Subsequently the applicant learnt that Madam Wong’s mother was interested in investing in the EPOX products, and Mr. Lo informed the applicant that the company’s financial problems had been resolved by reason of assistance from Madam Wong. Mr. Lo had asked the applicant whether he would like to be given some benefits from the patent, but he politely refused to take them.", "zh-HK": "申請人指勞先生曾向他查詢是否有興趣投資其公司，但申請人表示沒有興趣。1999年初勞先生問他是否願意投資EPOX產品，他向勞先生表示不必等他的決定，但他同時介紹勞先生和黃女士認識。其後他知悉黃女士的母親有興趣投資EPOX產品，勞先生亦曾告知申請人他得到黃女士的協助，已解決了公司財政問題，勞先生曾向申請人查問是否需要給他一些專利得益，但申請人婉拒。" } }, { "doc_id": 146, "seg_id": 23, "translation": { "en": "The applicant explained that when he applied for permission to invest in the development of the EPOX products, he did not have a detailed investment plan, because he wanted to obtain permission from the Housing Department first. He said that he had intended to donate to the Housing Department the benefits from the patent of the EPOX products. However, he admitted that he hoped he could invest in the development of the EPOX products and at the same time continue to work in the Housing Department.", "zh-HK": "申請人指自己申請投資發展EPOX產品時，並沒有詳細的投資計劃，原因是他希望先得到房署的批准。申請人更表示打算將EPOX產品專利得益捐給房署。但申請人承認自己曾希望能一方面投資發展EPOX產品，一方面繼續留在房署工作。" } }, { "doc_id": 146, "seg_id": 24, "translation": { "en": "The applicant asserted that when he recommended the EPOX products to the Housing Department, he neither sensed that he was giving any advantage to his good friends nor obtained any benefit for himself, and hence he did not feel that any conflict of interest was involved in this matter.", "zh-HK": "申請人指自己在推薦EPOX產品給房署時，不意會是給好朋友任何利益，而他自己亦沒有得益，故不覺事件上有利益衝突。" } }, { "doc_id": 146, "seg_id": 25, "translation": { "en": "The applicant maintained that in recommending the EPOX products to the Housing Department, he did not deliberately give any advantage to Madam Wong. He recommended the EPOX products not because he knew that Madam Wong invested in Nikka Materials, but purely because the products were of a high quality and suitable for the projects.", "zh-HK": "申請人強調向房署推薦EPOX產品，並非刻意將優勢給予黃女士，亦非因為知道黃女士有投資日華建材。他的立場是因為EPOX產品的質素高，適合有關工程，他才推薦該產品。" } }, { "doc_id": 146, "seg_id": 26, "translation": { "en": "The applicant said that subsequently he had misgivings over the above matter, following a talk on corruption issues given by ICAC officers who visited the Housing Department. As a result, in September 2001 he declared his relationship with Madam Wong.", "zh-HK": "申請人表示事後因廉政公署曾到過房署講解貪污問題，令他對事件有疑慮，他才在2001年9月申報他和黃女士的關係。" } }, { "doc_id": 146, "seg_id": 27, "translation": { "en": "The applicant emphasized that he neither participated in the establishment of Nikka Materials nor invested in the EPOX products. He said he had no knowledge of Madam Wong’s investment in Nikka Materials or her directorship in that company. He said he was under the impression that Madam Wong and her mother had lent money to Mr. Lo. He also said that during the ICAC interview, he was misled by ICAC officers into saying that Madam Wong and her mother invested in Nikka Materials.", "zh-HK": "申請人強調自己沒有參與成立日華建材，亦沒有投資EPOX產品。申請人更稱不知黃女士有投資日華建材，亦不知她是董事，他表示以為是黃女士母女借錢給勞先生，而自己是受廉署人員誤導才在會面時說黃女士母女投資日華建材。" } }, { "doc_id": 146, "seg_id": 28, "translation": { "en": "The applicant called witnesses to prove the good quality of the EPOX products. There were also witnesses who testified that the applicant was efficient at work and that his designs were of a very high standard.", "zh-HK": "申請人有傳召證人以證明EPOX產品質素佳，亦有證人指申請人工作效率高而其設計亦極有水準。" } }, { "doc_id": 146, "seg_id": 29, "translation": { "en": "The trial judge’s findings", "zh-HK": "原審法官的裁定" } }, { "doc_id": 146, "seg_id": 30, "translation": { "en": "Following the cases of Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 and Sin Kam Wah & Another v HKSAR (2005) 8 HKCFAR 192, the trial judge set out the five elements of the offence, namely: (a) a public officer, (b) in the course of or in relation to his public office, (c) wilfully misconducts himself or wrongfully and wilfully fails to perform his duty, (d) without reasonable excuse or justification, and (e) such misconduct is serious.", "zh-HK": "原審法官根據Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 和Sin Kam Wah & Another v HKSAR (2005) 8 HKCFAR 192等案列明有關控罪的五項要素，包括（a）公職人員，（b）在擔任公職或與公職有關的情況下，（c）故意作出不檢行為或不當地故意不履行職責，（d）沒有合理辯解或理由，及（e）有關的不檢行為是嚴重的。" } }, { "doc_id": 146, "seg_id": 31, "translation": { "en": "The trial judge pointed out that there was no dispute as to elements (a) and (b). The judge also found that the applicant wilfully failed to declare his friendly ties with Madam Wong, even though he must have known he was under a duty to declare his relationship with a supplier for the Housing Department.", "zh-HK": "原審法官指出(a) 及 (b) 兩項要素沒有爭議，原審法官亦裁定申請人是故意不申報他和黃女士的友好關係，雖然他必然知道自己有責任申報他與房署供應商的關係。" } }, { "doc_id": 146, "seg_id": 32, "translation": { "en": "The judge found that in 1999 the applicant learnt that Madam Wong invested in Nikka Materials, but when he recommended the EPOX products he wilfully failed to declare his relationship with Madam Wong. The judge found that such conduct constituted misconduct for which the applicant was unable to put forward any reasonable excuse or justification.", "zh-HK": "原審法官裁定申請人在1999年知悉黃女士投資日華建材，但在推薦EPOX產品時卻故意不申報和黃女士的關係。原審法官裁定上述行為構成不檢行為而申請人未能提出任何合理辯解或理由令其不檢行為合理化。" } }, { "doc_id": 146, "seg_id": 33, "translation": { "en": "The judge rejected the applicant’s evidence, saying that he merely wanted to use such evidence to strengthen his case. The judge found that the applicant had dishonestly misconducted himself and that such misconduct was serious, and convicted the applicant accordingly.", "zh-HK": "原審法官否定申請人的證供並指他只是希望以其證供加強其辯解。原審法官裁定申請人不誠實作出不檢行為，而其不檢行為亦是嚴重的。因此原審法官裁定申請人罪名成立。" } }, { "doc_id": 146, "seg_id": 34, "translation": { "en": "Ground of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 146, "seg_id": 35, "translation": { "en": "The only ground of appeal put forward by Mr. Wong SC, Counsel for the applicant, is that although the trial judge found that the applicant had misconducted himself, he neither made it clear that such misconduct was serious nor explained the evidential basis for that conclusion.", "zh-HK": "代表申請人王正宇資深大律師只提出一點上訴理由，王資深大律師指原審法官判定申請人犯有不檢行為，但卻沒有說明該不檢行為是嚴重的，亦沒有說明他基於什麼證據而得出該結論。" } }, { "doc_id": 146, "seg_id": 36, "translation": { "en": "Mr. Wong SC stresses that EPOX products were undoubtedly suitable for the relevant purposes, and one of the witnesses had indicated that even if he were aware of the relationship between the applicant and Madam Wong, he would still have approved the use of the EPOX products because the project in question was only a small-scale pilot project.", "zh-HK": "王資深大律師強調EPOX產品毫無疑問是適合有關用途的物料，而亦有證人表示，即使知悉申請人和黃女士的關係，基於有關項目只是一個小型的測試，他亦會同意使用EPOX產品。" } }, { "doc_id": 146, "seg_id": 37, "translation": { "en": "Mr. Wong SC asserts that, in recommending the EPOX products, the applicant did not depart from his job duties; on the contrary, had the applicant not recommended the EPOX products, he would have departed from his job duties because the Housing Department would have been deprived of the opportunity to use the most suitable materials.", "zh-HK": "王資深大律師力陳申請人在推薦EPOX產品時，並沒有偏離他職位上的責任，反之，如申請人不推薦EPOX產品，他才是偏離了職位上的責任，令房署工程未能採用最適用的物料。" } }, { "doc_id": 146, "seg_id": 38, "translation": { "en": "Mr. Wong SC maintains that when the applicant recommended the EPOX products, he was properly discharging his responsibilities and was not doing anything which went against “the importance of the public objects”, and therefore his conduct did not constitute “misconduct”.", "zh-HK": "王資深大律師力稱當申請人推薦EPOX產品時，他是適當地履行其職責，不構成任何違反“公共目標的重要性”，故不屬“不檢行為”。" } }, { "doc_id": 146, "seg_id": 39, "translation": { "en": "Mr. Wong SC points out that even if what the applicant did was “misconduct”, such “misconduct” did not bring about any serious consequences and, not being serious in nature, could not form the basis of the offence of “misconduct in public office”.", "zh-HK": "王資深大律師指即使申請人的行為屬“不檢行為”，他的“不檢行為”沒有帶出任何的嚴重後果，故該“不檢行為”性質並不嚴重，亦不足以支持“藉公職作出不檢行為罪”。" } }, { "doc_id": 146, "seg_id": 40, "translation": { "en": "Mr. Wong SC cites one of the sentences in point (1) of the summary of holdings in AG’s Reference (No. 3 of 2003) [2004] 2 Cr App R 366 to support his argument. The sentence reads as follows:", "zh-HK": "王資深大律師援引AG’s Reference (No.3 of 2003)[2004]2 Cr App R 366案裁決要點（一）內的一句句子支持其立場。該句子原文如下：" } }, { "doc_id": 146, "seg_id": 41, "translation": { "en": "The misconduct complained of had to be serious misconduct, the seriousness of which might depend on the seriousness of the consequences that followed the act or omission.", "zh-HK": "“受指責的不檢行為性質必需嚴重，其嚴重之處有可能取決於有關行為或不作為的後果之嚴重性。”（非官方翻譯本）" } }, { "doc_id": 146, "seg_id": 42, "translation": { "en": "Mr. Wong SC emphasizes that as EPOX products were new products, it was not easy to obtain similar materials as substitutes, and that Nikka Materials was the sole supplier of the EPOX products. That being the case, the recommendation of the EPOX products by the applicant would not, it is submitted, give any unfair advantage to Nikka Materials. For this reason, it is submitted that even if the applicant’s “conduct” was misconduct, it was not sufficiently serious to constitute the offence of misconduct in public office.", "zh-HK": "王資深大律師強調EPOX屬新產品，所以不易找到相若的替代物料，而除了日華建材外，更沒有其他供應商供應EPOX產品，因此申請人推薦EPOX產品，不會令日華建材享有任何不公平的優勢，故申請人的“行為”，即使不檢，亦不屬嚴重，故不構成藉公職作出不檢行為罪。" } }, { "doc_id": 146, "seg_id": 43, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 146, "seg_id": 44, "translation": { "en": "In Shum Kwok Sher, the Court of Final Appeal held that one of the elements of the offence of misconduct in public office is that the defendant culpably misconducts himself. The Court of Final Appeal further explained that the misconduct must be wilful and intentional and must also be serious in nature. The Court of Final Appeal made it clear that whether the misconduct is serious is to be determined by having regard to, apart from the seriousness of the consequences of the conduct complained of, the responsibilities of the office and the officeholder, the importance of the public objects which they serve, and the nature and extent of the departure from those responsibilities (see paragraph 86 of the judgment).", "zh-HK": "終審法院在Shum Kwok Sher案指明公職人員行為不檢罪的要素之一是被告人作出應受懲罰的不檢行為。終審法院進一步解釋不檢行為必須是故意及蓄意地作出而不檢行為的性質須屬嚴重的。終審法院表明不檢行為的性質是否嚴重除了取決於該等行為的後果之嚴重性外，亦會取決於有關職位和職位持有人的責任，他們所促進的公共目標的重要性，以及偏離該等職責的行為的性質和程度（見判案書第86段）。" } }, { "doc_id": 146, "seg_id": 45, "translation": { "en": "As the trial judge was well aware and pointed out in his judgment, it was never the prosecution’s case that the applicant had been influenced by self interests into recommending substandard or unsuitable products to be used in the Housing Department projects.", "zh-HK": "由始至終，控方都沒有指申請人是在受到利益衝突的影響下而推薦一些不合格或不合適的產品以供房署工程使用，這點原審法官是知悉的亦在其判案書中反映。" } }, { "doc_id": 146, "seg_id": 46, "translation": { "en": "The EPOX products were certainly suitable products which were up to par, but it did not follow that they were unique and irreplaceable. There was evidence that the EPOX products were not only expensive but could also be replaced by other products. Some witnesses had pointed out that had they been aware of the friendly ties between the applicant and the directors of Nikka Materials, they might have used other materials or would have transferred the applicant away from the projects in question before deciding whether the EPOX products were to be used, so as to avoid a conflict of interest.", "zh-HK": "當然，EPOX產品是合格及合適的產品，並不表示EPOX產品是獨一無二，不能替代的產品。有證據顯示EPOX產品不但價錢高，更有其他物料可替代。有證人向法庭指出假若他們知悉申請人和日華建材的董事友好，他們可能會改用其他材料，或會將申請人調離有關工程項目，才決定是否採用EPOX產品，避免利益衝突的情況出現。" } }, { "doc_id": 146, "seg_id": 47, "translation": { "en": "In any event, the public objects referred to by the Court of Final Appeal are not confined to the question of whether a certain product recommended by a public officer in the course of his public office is up to standard and suitable. The public objects referred to by the Court of Final Appeal are more extensive and profound. The culpable misconduct referred to by the Court of Final Appeal includes “wilfully and intentionally” neglecting or failing to perform a duty to which a public officer is subject by virtue of his office or employment; or with an improper motive, intentionally misusing a power or discretion which a public officer has by virtue of his office or employment. Misconduct is not restricted to a wilful violation of the rules by a public officer in the performance of his public duties, but includes any other misconduct committed in any matter relating to his public office. In paragraph 47 of his judgment in Sin Kam Wah, Sir Anthony Mason NPJ remarked as follows:", "zh-HK": "無論如何，終審法院所指的公共目標，並非局限於個別公職人員在公職上推薦的某種產品是否合格及適用，終審法院所指的公共目標，幅度更廣，層次更深。終審法院所指的應受懲罰的不檢行為包括“故意及蓄意”地漠視或沒有履行其職位或僱用所施加的工作責任，或懷有不當動機及蓄意濫用其職位或僱主所賦予的權力或酌情權。不檢行為不局限在公職人員履行其公職時故意違規，而包括在和公職上有關的事項作出任何其他不檢行為。在上述Sin Kam Wah案的判案書第47段，終審法院非常任法官Sir Anthony Mason有以下評論：" } }, { "doc_id": 146, "seg_id": 48, "translation": { "en": "As it was argued in the courts below that the conduct complained of was not in the course of or in relation to the 1st appellant’s public office and was neither culpable nor serious, it is appropriate to say something about these matters. To constitute the offence of misconduct in public office, wilful misconduct which has a relevant relationship with the defendant’s public office is enough. Thus, misconduct otherwise than in the performance of the defendant’s public duties may nevertheless have such a relationship with his public office as to bring that office into disrepute,", "zh-HK": "“在下級法庭提出的論點是有關行為並非是第一上訴人在履行公職時干犯的，亦和其公職無關，因此既非‘不檢’亦非嚴重。本庭認為有需要就該些事項作出解釋。構成‘藉公職作出不檢行為’罪，只要不檢行為是故意作出的及是和被告人的公職有關，便已足夠。因此，不檢行為雖然並非是在被告人履行公職時干犯，但仍然和其公職有關，原因是該些不檢行為會令該職位蒙受恥辱。”（非官方翻譯本）。" } }, { "doc_id": 146, "seg_id": 49, "translation": { "en": "In order that Hong Kong can continue to be a corruption-free, fair and just community, any public officer in the execution of his public duties must not only be impartial and avoid doing anything in conflict with his personal interests, but must also ensure that his conduct will not lead to any reasonable criticism, cause any suspicion or bring his office into disrepute. Otherwise, the public will lose confidence in public administration and social stability and harmony will be perturbed. In performing his public duties, a public officer must never harbour any selfish motive and must not intentionally benefit himself or his friends or relatives in any way, for instance, by providing any assistance to them so that they would enjoy an unfair advantage. Any conduct of a public officer which contravenes the above principles is serious misconduct.", "zh-HK": "香港要繼續成為一個廉潔、公平、公正的社會，任何公職人員履行公務時，不但必需大公無私，屏棄任何和個人利益有衝突的行為，更要確保其行為不會導致任何合理的非議，令人生疑，導致其職位受辱。否則社會大眾對公務行政會失去信心，影響社會的穩定、和諧。公職人員履行公職時，絕對不能懷有私心，故意令自己或親朋戚友獲得任何利益，包括不向他們提供任何協助，令他們佔任何不公平的優勢。公職人員的行為，如和上述原則有抵觸都是嚴重的不檢行為。" } }, { "doc_id": 146, "seg_id": 50, "translation": { "en": "Being an architect of the Housing Department, the applicant occupied an important post. As he worked very efficiently and produced high quality designs, the Housing Department reposed great trust in him. He was entitled to recommend building materials to the housing project team, and his recommendations were accepted on many occasions. It was against this background that the applicant, without disclosing his relationship with Nikka Materials, recommended to the housing project team the EPOX products supplied by Nikka Materials to be used in four Housing Department projects.", "zh-HK": "申請人位居要職，是房屋署的建築師，加上他工作效率高，設計亦有水平，故獲房屋署的高度信任。他有權向房屋項目小組推薦建築物料，其推薦亦因此多次獲得採納。申請人是在上述背景下，隱瞞他和日華建材的關係，向房屋項目小組推薦在四項房屋署工程中使用日華建材供應的EPOX產品。" } }, { "doc_id": 146, "seg_id": 51, "translation": { "en": "The applicant obviously had a close relationship with the EPOX products. He was acquainted with their agent Mr. Lo and, on his invitation, he had considered investing in the development of the EPOX products. When the applicant made such an investment, he introduced Madam Wong, who was a good friend of his family, to Mr. Lo.", "zh-HK": "申請人明顯是和EPOX產品有密切關係，他認識其代理商勞先生，更曾應其邀請，考慮過投資發展EPOX產品。當申請人投資發展EPOX產品時，他將自己家庭好友黃女士介紹給勞先生認識。" } }, { "doc_id": 146, "seg_id": 52, "translation": { "en": "Notwithstanding that Madam Wong was merely a housewife who had never run a business in building materials or products, she and her mother set up Smartax and speedily partnered with Mr. Lo to establish Nikka Materials which, in place of Nikka Technology, became the agent, and indeed the sole agent, for the EPOX products. But for the close friendship between Madam Wong and the applicant, Mr. Lo would not have come to know her, let alone partnered with her in the operation of Nikka Materials.", "zh-HK": "雖然黃女士只是一名家庭主婦，亦從來沒有經營過任何建築材料產品，但她卻和母親成立俊迪，並火速和勞先生合伙，成立日華建材，替代日華科技，代理EPOX產品，成為該產品的獨家代理。假若黃女士不是申請人的好友，勞先生不會認識她，更不可能和她合伙經營日華建材。" } }, { "doc_id": 146, "seg_id": 53, "translation": { "en": "The undisputed facts showed that the applicant had very close ties with the EPOX products and their agent but, without making any application or disclosure, he recommended those products to the Housing Department in the course of his public office. As found by the trial judge, it was evident that the applicant was intentionally hiding some dishonest conduct in the course of his public office. Had he not been dishonest, he would certainly have disclosed his close relationship with the agent for the EPOX products, namely Nikka Materials, when he recommended those products.", "zh-HK": "不爭議的事實顯示申請人和EPOX產品及其代理商有相當密切的關係，但申請人卻在沒有作出任何申請或披露的情況下，在公務上向房署推薦EPOX產品。誠如原審法官裁定申請人明顯是在公務上蓄意隱瞞一些不誠實的行為。假若申請人不是不誠實行事，他必會在推薦EPOX產品時，同時透露他和EPOX產品的代理商即日華建材的緊密關係。" } }, { "doc_id": 146, "seg_id": 54, "translation": { "en": "As a high-ranking civil servant, the important public objects which the applicant had to serve were not confined to utilizing his professional knowledge to recommend certain products. It was the applicant’s duty to uphold the integrity of a civil service in which the public had confidence. The decisions he made in the course of his public office should not have been influenced by his own interests or the interests of his relatives and friends.", "zh-HK": "作為高級公務員，申請人要促進的重要公共目標，並非只限在以其專業知識，推薦某種產品。申請人有責任維護一個廉潔及獲市民大眾信服的公共事務系統，其工事上的決定不應受其個人及親朋戚友的利益所影響。" } }, { "doc_id": 146, "seg_id": 55, "translation": { "en": "It is clear that the applicant recommended the EPOX products in the hope that those products would be used by the Housing Department, so that their usage and competitive edge would be enhanced and the applicant’s friends would directly benefit therefrom. But for the applicant’s recommendation, the Housing Department might not even have known about the EPOX products and, instead of agreeing to use those products, might have used other products. It is plain as a pikestaff that the applicant’s conduct was capable of conferring an unfair advantage on Nikka Materials, which was run by his friends.", "zh-HK": "申請人推薦EPOX產品，明顯是希望該產品獲房署採用，並因此提高該產品在行內的使用率及優勢，直接導致其友好得益。假若沒有申請人的推薦，房署可能不知悉EPOX產品，更可能不會同意採用EPOX產品，而用其他物料替代。申請人的行為能導致其友好經營的日華建材獲得不公平的優勢是顯而易見的。" } }, { "doc_id": 146, "seg_id": 56, "translation": { "en": "What the applicant did was not only misconduct in the form of a serious breach of his duties, but it also deviated from the public objects which he was required to serve. By wilfully recommending the products which his good friends dealt in without making the requisite disclosure, the applicant had failed to perform the duties imposed on him by his office and had misused the discretion conferred upon him by his office. With an improper motive, he had wilfully exercised the said discretion in such a way as to benefit his friends. The applicant’s misconduct was extremely serious whether or not it would cause the Housing Department to use unsuitable products and suffer serious consequences as a result.", "zh-HK": "申請人的行為，不但不檢，遠遠違反其責任，更抵觸了他須促進的公共目標。申請人沒有履行其職位所施加的工作責任，濫用其職位所賦予的酌情權，故意在沒有作出申報下，推薦由其好友經營的產品。申請人是懷有不當動機，故意行使其職位所賦予的酌情權，以便其友好獲益的。不論申請人的不檢行為會否導致房署因採用不適當的產品而引發嚴重後果，申請人的不檢行為亦是極為嚴重的。" } }, { "doc_id": 146, "seg_id": 57, "translation": { "en": "Mr. Wong SC submits that the trial judge neither made it clear that the applicant’s misconduct was serious nor explained the reasoning behind his conclusion. With respect, we do not agree.", "zh-HK": "王資深大律師指原審法官沒有說明申請人犯的不檢行為是嚴重的，亦沒有解釋是基於甚麼論據得出上述的結論。本庭不同意王資深大律師的立場。" } }, { "doc_id": 146, "seg_id": 58, "translation": { "en": "What the applicant did was misconduct, and such misconduct was serious in nature. These were so plain and obvious that it was simply unnecessary for the trial judge to elaborate on them. As Mr. Lee, SADPP for the respondent, has correctly pointed out, the abovementioned case of AG’s Reference (No. 3 of 2003) merely indicates that, while the consequences of a misconduct may be relevant to the seriousness of the misconduct, they are merely one of the criteria — and not the sole criterion — for assessing the seriousness of the misconduct.", "zh-HK": "申請人所犯的行為屬不檢是顯而易見的，該些不檢行為的嚴重性亦是有目共睹的，原審法官根本無需再作詳細解釋。誠如代表答辯人的李運騰高級助理刑事檢控專員正確指出上述AG’s Reference (No.3 of 2003)案只是指出不檢行為的嚴重性可能和該行為的後果有關，但不檢行為的後果，只是量度該行為是否嚴重的指標之一，而非唯一的指標。" } }, { "doc_id": 146, "seg_id": 59, "translation": { "en": "In any event, in his judgment, having set out and canvassed the background of the case and particularly the applicant’s misconduct, the trial judge came to the following conclusion (at paragraph 49):", "zh-HK": "無論如何，在其判詞，原審法官不但就案件的背景，特別是申請人的不檢行為有大篇幅的複述，更在第49段作出以下結論：-" } }, { "doc_id": 146, "seg_id": 60, "translation": { "en": "As a Landscape Architect, the defendant had a lot of contacts with suppliers, and he was under an important duty to act fairly in dealing with matters such as selecting materials. The defendant’s conduct, which impaired the trust reposed by the public in the relevant mechanism of the Housing Department, constituted serious misconduct.", "zh-HK": "“被告人是園境師，與供應商有很多接觸、公平處理選擇物品等事宜是重要的職務，被告人的行為，影響房屋署有關機制的公信力，是嚴重的不當行為。”" } }, { "doc_id": 146, "seg_id": 61, "translation": { "en": "The judge’s findings are justified and correct. We see nothing improper in the applicant’s conviction, and the application for leave to appeal against conviction is dismissed accordingly.", "zh-HK": "原審法官的裁決是有根據，亦是正確的。對申請人被裁定罪名成立，本庭不覺有任何不妥之處，因此本庭拒絕批准他就定罪上訴。" } }, { "doc_id": 146, "seg_id": 62, "translation": { "en": "Mr. Wong Ching Y., SC and Mr. Michael Leung, instructed by Herman H.M. Hui & Co., for the Applicant.", "zh-HK": "申請人：由許享明律師事務所轉聘王正宇資深大律師及梁鴻谷大律師代表。" } }, { "doc_id": 146, "seg_id": 63, "translation": { "en": "Mr. Alex Lee, Senior Assistant Director of Public Prosecutions, for the Respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員李運騰代表。" } }, { "doc_id": 147, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 147, "seg_id": 2, "translation": { "en": "The Applicant was charged with one count of “dealing with property representing proceeds of an indictable offence”, contrary to section 25(1) of the Organized and Serious Crimes Ordinance (Cap. 455 of the Laws of Hong Kong). He pleaded not guilty to the charge. After trial before Deputy District Judge Sham, the Applicant was convicted and sentenced to 6½ years’ imprisonment. He applied for leave to appeal against sentence. After the hearing, we allowed the application, treated the application as the appeal proper, and reduced the term of sentence to 5 years and 8 months. The reasons for our judgment are set out below.", "zh-HK": "申請人被控一項「處理公訴罪行得益的財產」罪名，違反《有組織及嚴重罪行條例》(香港法例第 455 章)第 25(1) 條。申請人否認控罪。經區域法院暫委法官沈小民審理後,申請人被裁定罪名成立及被判監六年半。申請人就刑期提出上訴許可申請。本庭經聆訊後批准申請，視申請為正式上訴及將刑期更改為五年八個月監禁。以下是本庭的判案理由。" } }, { "doc_id": 147, "seg_id": 3, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 147, "seg_id": 4, "translation": { "en": "The facts of the case revealed that in February 1996 a purchaser from a subsidiary of Chuang’s Consortium International Limited (‘the Purchaser’) purchased a property situated at Ground Floor, 15 Robinson Road (‘the Property’) for HK$105,000,000.00. The Purchaser and vendors to that property transaction were represented by different solicitors’ firms.", "zh-HK": "案情顯示一間屬於莊士機構國際有限公司名下的買家（‘買家’） 在1996 年 2 月以 HK$105,000,000.00 購入一所位於羅便臣道 15 號地下的物業(‘該物業’)，買家和賣家分別由不同的律師行代表處理該宗樓宇買賣交易。" } }, { "doc_id": 147, "seg_id": 5, "translation": { "en": "On 23 February 1996, the Purchaser and two persons claiming to be the owners of the Property signed a provisional sale and purchase agreement in respect of the Property. On the same day, the Purchaser sent a bank draft in the sum of HK$15,825,000.00 to the solicitors’ firm acting for the owners in payment of the first deposit as required for the purchase. The owners instructed the firm to draw a cheque in the same amount in favour of a person named ‘So Chi Yin’. Upon receipt of the cheque, So Chi Yin presented it in a bank and withdrew the cash.", "zh-HK": "買家和兩名聲稱是該物業的業主於當1996 年 2 月 23 日簽署了一份購買該物業的臨時買賣合約。買家於同日將一張面值 HK$15,825,000.00 的本票交到業主的律師行，作為購買該物業所需支付的第一次訂金。業主指示律師行開出一張和第一次訂金相同銀碼的支票給一名叫「蘇志賢」的人士。蘇志賢在收到支票後到銀行兌現該張支票，並提取走現金。" } }, { "doc_id": 147, "seg_id": 6, "translation": { "en": "On 22 March 1996, the Purchaser and the vendors signed a formal sale and purchase agreement. The Purchaser delivered a bank draft in the sum of $15,825,000.00 to the solicitors’ firm acting for the owners in payment of the second deposit as required for the purchase. The owners instructed the firm to transfer the above sum to the Applicant by way of a cash cheque in his favour.", "zh-HK": "1996 年 3 月 22 日買賣雙方再簽署一份購買該物業的正式買賣合約。買家發出一張面值 $15,825,000.00 的本票給業主的律師行作為購買該物業須支付的第二次訂金。業主指示律師行把這筆訂金以現金支票形式發給申請人。" } }, { "doc_id": 147, "seg_id": 7, "translation": { "en": "On 22 March 1996 the Applicant and another male cashed the cheque in a bank.", "zh-HK": "1996 年 3 月 22 日申請人與另一名男子到銀行對兌這張現金支票。" } }, { "doc_id": 147, "seg_id": 8, "translation": { "en": "The property transaction was in fact a sham. The real owners of the Property had neither consented to sell the Property nor signed any document to convey the Property. In the transaction, the Purchaser was defrauded of HK$31,650,000.00 being the total sum of the two deposits.", "zh-HK": "這宗物業交易其實是一個騙局，該物業的真正業主並沒有同意出售該物業，他們也沒有簽署過任何買賣文件。買家在這次交易中被騙去 HK$31,650,000.00，即兩次的訂金的總額。" } }, { "doc_id": 147, "seg_id": 9, "translation": { "en": "The Applicant left Hong Kong via Lowu on 25 March 1996, and thereafter the Immigration Department did not have any record of the Applicant entering or leaving Hong Kong. Ever since he left Hong Kong, the Applicant had resided on the Mainland. He smuggled himself back into Hong Kong in 2005 and was arrested by the police in March 2006. During his stay on the Mainland, the Applicant had smuggled himself into Hong Kong for four times.", "zh-HK": "申請人於1996 年 3 月 25 日經羅湖離開香港。之後香港入境處再沒有他進出香港的記錄。申請人離港後一直在大陸居住。直至 2005 年偷渡回港，並於 2006 年 3 月被警方拘捕。申請人在內地居住期間曾經四次偷渡回港。" } }, { "doc_id": 147, "seg_id": 10, "translation": { "en": "So Chi Yin, who withdrew the first deposit, was arrested by the police and prosecuted for the same charge in 1996. The charge was stated to involve the sum of HK$15,825,000.00. After trial before District Judge Barnes (as she then was), So Chi Yin was convicted and sentenced to 4 years’ imprisonment. Judge Barnes adopted a starting point of 4 years. Despite So Chi Yin had pleaded not guilty, Judge Barnes took into account that he had not disputed all aspects of the prosecution case and hence reduced the term by 6 months. In the end, So Chi Yin was sentenced to a term of 3½ years.", "zh-HK": "提走第一筆訂金的蘇志賢在 1996 年被警方拘捕及被根據同一罪名檢控。控罪所涉及的款額是 HK$15,825,000.00。案件經區域法院張慧玲法官審理後，蘇志賢被裁定罪名成立及被判監四年。張法官以四年監禁為量刑基準，雖然蘇志賢否認控罪，但由於張法官認為他並不是對所有的控方案情都提出爭議，因此再給他六個月的刑期扣減，最終刑期定為三年半監禁。" } }, { "doc_id": 147, "seg_id": 11, "translation": { "en": "Dissimilar sentences imposed on co-defendants", "zh-HK": "同案被告不同的刑期" } }, { "doc_id": 147, "seg_id": 12, "translation": { "en": "The ground of appeal advanced by the Applicant is that he is being unfairly treated by reason of the great disparity between the sentences passed on him and So Chi Yin.", "zh-HK": "申請人今次提出上訴的理由是他與蘇志賢所遭判的刑期相距甚遠，對他不公平。" } }, { "doc_id": 147, "seg_id": 13, "translation": { "en": "In HKSAR v. Leung Yiu Ming and another [2000] 1 HKLRD 247, this Court (Nazareth VP, Stuart Moore VP and Wong JA) discussed the issue of dissimilarity in sentences imposed on two co-defendants. As this Court observed, two scenarios are involved. The first is where there is a disparity between sentences passed on the same occasion by the same judge, in which case the sentence can be varied by the appellate court if the judge has not properly apportioned the culpability between the co-defendants. The second scenario is where different sentences are passed on the co-defendants by different judges on different occasions, in which case, save in exceptional circumstances, the appellate court only has to consider whether the sentence imposed on the particular appellant is appropriate.", "zh-HK": "本庭（黎守律、司徒冕副庭長及王見秋上訴法庭法官）在 HKSAR v. Leung Yiu Ming and another [梁耀明（譯音）] [2000] 1 HKLRD 247 一案中就同案兩名被告各獲得不同刑期的處理方法作出討論。本庭認為這類爭議涉及兩種情況：第一是同一案件中同一位法官判處各被告不同的刑期，在這情況下如果原審法官沒有適當地分配刑責，上訴法庭是可以更改刑期的；第二是不同的法官對同一案件中的不同的被告人作出不同的刑期，在這情況下除非案件存有特殊的案情，否則法庭唯一需要考慮的是提出上訴被告人的所獲判的刑期是否適當。" } }, { "doc_id": 147, "seg_id": 14, "translation": { "en": "The present case falls into the second scenario discussed above. It follows that, unless the Applicant can show that there are exceptional circumstances, the only issue we have to consider is whether the sentence passed on him is appropriate or not.", "zh-HK": "本案是屬於上述的第二種情況，故此除非申請人能指出本案存有其他特殊的情況，否則本庭唯一需要考慮的是他所遭判的刑期是否適當。" } }, { "doc_id": 147, "seg_id": 15, "translation": { "en": "Sentencing principles", "zh-HK": "量刑原則" } }, { "doc_id": 147, "seg_id": 16, "translation": { "en": "As far as the offence of “dealing with property representing proceeds of an indictable offence” is concerned, no sentencing guidelines have been laid down as the facts vary from case to case. Nevertheless, the following factors may be considered for sentencing purposes:", "zh-HK": "由於「處理公訴罪行得益的財產」這類案件涉及不同的案情，故此法庭沒有給予量刑指引的，但以下各點是可以列為量刑的參考因素：" } }, { "doc_id": 147, "seg_id": 17, "translation": { "en": "Although no direct relationship necessarily exists between “dealing with property representing proceeds of an indictable offence” and the underlying indictable offence, if the underlying indictable offence can be identified, then the court, in passing sentence for “dealing with property representing proceeds of an indictable offence”, can take into account the sentence for that indictable offence;", "zh-HK": "雖然「處理公訴罪行得益的財產」控罪與有關的公訴罪行不一定有直接關係，但若果有關的公訴罪行是可以確認的，那麼法庭是可以在「處理公訴罪行得益的財產」控罪量刑時考慮有關公訴罪行本身的刑期。" } }, { "doc_id": 147, "seg_id": 18, "translation": { "en": "The criminality of “dealing with property representing proceeds of an indictable offence” lies in assisting, supporting and encouraging the relevant indictable offence;", "zh-HK": "「處理公訴罪行得益的財產」控罪的罪責是協助、支持及鼓勵有關的公訴罪行。" } }, { "doc_id": 147, "seg_id": 19, "translation": { "en": "The extent to which the person charged with “dealing with property representing proceeds of an indictable offence” knew of the indictable offence;", "zh-HK": "法庭需要考慮「處理公訴罪行得益的財產」控罪的被告人對公訴罪行的知情度。" } }, { "doc_id": 147, "seg_id": 20, "translation": { "en": "The amount of money involved in “dealing with property representing proceeds of an indictable offence” is also a relevant consideration.", "zh-HK": "涉及「處理公訴罪行得益的財產」控罪的款額亦是一項有關連的考慮因素。" } }, { "doc_id": 147, "seg_id": 21, "translation": { "en": "See R v. Karen Monfries [2004] 2 Cr App R (S) 3, 9.", "zh-HK": "見R v. Karen Monfries [2004] 2 C R App R (S) 3, 9。" } }, { "doc_id": 147, "seg_id": 22, "translation": { "en": "While the sentencing court is entitled to take into account the sentence of the underlying indictable offence, this Court (Stuart-Moore VP and McMahon J) held in HKSAR v. Chen Szu Ming CACC 270/2005 that the court, in considering the sentence for “dealing with property representing proceeds of an indictable offence”, should only do so on the basis of that offence itself rather than of the underlying indictable offence. That said, the defendant’s knowledge of the underlying indictable offence will of course constitute an aggravating factor.", "zh-HK": "雖然法庭可以考慮公訴案件本身的刑期，但本庭在（司徒冕副庭長及原訟法庭法官麥明康）在HKSAR v. Chen Shu Ming (陳思銘) CACC 270/2005 一案中指出法庭在作出「處理公訴罪行得益的財產」控罪量刑時是必須以該項控罪本身，而不應該以有關的公訴罪行作為量刑基礎。當然若果被告人對有關的公訴罪行是知情，這是一個會令他被加重刑責的因素。" } }, { "doc_id": 147, "seg_id": 23, "translation": { "en": "Authorities", "zh-HK": "案例" } }, { "doc_id": 147, "seg_id": 24, "translation": { "en": "The following are several decided cases in which the amounts involved are similar to that in the present case:", "zh-HK": "與本案涉案款額相若的有以下數宗案例：" } }, { "doc_id": 147, "seg_id": 25, "translation": { "en": "In HKSAR v. Renato Cemine Tandoc CACC 377/2002, the defendant pleaded guilty to a number of charges including one count of “using a false instrument” and four counts of “dealing with property representing proceeds of an indictable offence”. The defendant dealt with a sum of HK$13,000,000.00 being the proceeds in a fraud case. He was sentenced to imprisonment for 2 years and 8 months for count one and imprisonment for a total of 3 years and 4 months for the remaining four counts. The two terms were to run consecutively, making a total of 6 years.", "zh-HK": "HKSAR v. Renato Cemine Tandoc CACC 377/2002 一案的被告人承認多項控罪：第一項是「使用假護照」罪，另外四項是「處理公訴罪行得益的財產」罪。被告人處理欺詐案的收益款額達 HK$13,000,000.00。第一項控罪的刑期是兩年八個月監禁，其餘各項控罪的刑期合共三年四個月監禁，與第一項刑期分期執行，總刑期為六年監禁。" } }, { "doc_id": 147, "seg_id": 26, "translation": { "en": "In HKSAR v. Chen Szu Ming (CACC 270/2005), the defendant pleaded guilty to “dealing with property representing proceeds of an indictable offence”, the property being a sum of HK$14,000,000.00. The defendant had knowledge of the underlying indictable offence. He was sentenced to imprisonment for 3 years and 4 months. This Court affirmed the sentence and agreed with the starting point of 5 years adopted by the trial judge.", "zh-HK": "HKSAR v. Chen Sze Ming (陳思銘) (CACC 270/2005)，被告人承認「處理公訴罪行得益的財產」控罪，款額是 HK$14,000,000.00。被告人對有關的公訴罪行是知情的。他所獲判的總刑期是三年四個月監禁。本庭維持原判及同意原審法官所採用的五年量刑基準。" } }, { "doc_id": 147, "seg_id": 27, "translation": { "en": "In HKSAR v. Xu Xia Li & Another CACC 395/2003, one of the defendants was convicted of dealing with $11,000,000.00 being property representing proceeds of an indictable offence. She was sentenced to 3 years’ imprisonment, but on appeal this Court (Woo VP and Yuen JA) reduced the term to 2 years and 9 months.", "zh-HK": "HKSAR v. Xu Xia Li & Another（許厦禮[譯音]及另一人） CACC 109/2005，其中一名被告被裁定處理 $11,000,000.00 的公訴罪行得益財產罪名成立。原本刑期為三年監禁，但本庭（胡國興副庭長、上訴法庭法官袁家寧）將之更改為兩年九個月監禁。" } }, { "doc_id": 147, "seg_id": 28, "translation": { "en": "In HKSAR v. Oei Hengky Wiryo CACC 109/2005, the defendant was convicted on one count of “conspiracy to commit bookmaking” and two counts of “dealing with property representing proceeds of an indictable offence”. The latter offences involved two sums of $236,766,329.00 and $11,495,116.00. It was accepted that the defendant only dealt with parts of the two sums. This Court (Stuart-Moore VP, Stock JA and McMahon J) affirmed the sentences imposed for those two offences, namely imprisonment for 4 years and imprisonment for 18 months. The total term was 5½ years.", "zh-HK": "HKSAR v. Oei Hengky Wiryo CACC 109/2005，被告人被裁定一項「串謀收受賭注」罪及兩項「處理公訴罪行得益的財產」罪名成立。後者所涉及的金額分別為 $236,766,329.00 及 $11,495,116.00。法庭接受被告人只是處理這兩筆金額的部分款項。本庭（司徒冕副庭長、上訴法庭法官司徒敬及原訟法庭法官麥明康）維持分別四年及十八個月監禁的刑期。被告人所獲判的總刑期為五年半監禁。" } }, { "doc_id": 147, "seg_id": 29, "translation": { "en": "In HKSAR v. Ma Zhujiang and Another CACC 491/2005, D1 was convicted on three counts of “dealing with property representing proceeds of an indictable offence”, the property being a sum of HK$20,000,000.00. This Court (Ma CJHC, Stock JA and McMahon J) affirmed the sentence of 5 years’ imprisonment imposed by the trial judge.", "zh-HK": "HKSAR v. Ma Zhujiang and Another（馬珠江及另一人） CACC 491/2005，第一被告人被裁定三項「處理公訴罪行得益的財產」罪名成立。涉案金額約為 HK$20,000,000.00。本庭（馬道立首席法官、上訴法庭法官司徒敬及原訟法庭法官麥明康）維持原審法官判處的五年監禁刑期。" } }, { "doc_id": 147, "seg_id": 30, "translation": { "en": "In HKSAR v. Shing Siu Ming & Ors [1999] 2 HKC 883, D2 and D3 were each convicted on one count of “dealing with property representing proceeds of an indictable offence”. They dealt with HK$2,645,729.00 and AUD$1,527,000.00 respectively, both sums being proceeds of heroin trafficking. The two defendants were each sentenced to 7 years’ imprisonment. The evidence showed that a sum of HK$46,900,000.00, being the proceeds of drug trafficking, was remitted from Australia to Hong Kong, and the two defendants had taken positive steps to assist D1 who was charged with conspiracy to traffic in heroin. This Court (Power V-P, Mayo and Stuart-Moore JJA) affirmed the said sentences.", "zh-HK": "HKSAR v. Shing Siu Ming & Ors (成小明[譯音]及其他被告) [1999] 2 HKC 883，案件的第二及第三被告分別被裁定一項「處理公訴罪行得益的財產」罪名成立。第二被告所處理的金額是 HK$2,645,729.00。第三被告所處理的金額是澳幣$1,527,000.00。有關的款項是販運海洛英的收益。兩名被告各被判七年監禁。証據顯示毒品的收益被人從澳洲滙到香港，款額達 HK$46,900,000.00。兩名被告長以實際行動協助被控串謀販運海洛英的第一被告人。本庭（上訴法庭副庭長鮑偉華、上訴法庭法官梅賢玉及司徒冕）維持原本刑期不變。" } }, { "doc_id": 147, "seg_id": 31, "translation": { "en": "The Applicant’s role", "zh-HK": "申請人的角色" } }, { "doc_id": 147, "seg_id": 32, "translation": { "en": "The Applicant’s ground of defence was that he was involved in the present case purely because he rendered assistance to a friend. That friend said he might obtain a sum of money from a relative and asked the Applicant whether he would assist him in opening a Chinese restaurant in case he did get the money. Subsequently, that friend told the Applicant he had been given the money and asked the Applicant to collect the cheque from a solicitors’ firm and cash it at the bank on his behalf. The Applicant did as told. He alleged that he had no knowledge whatsoever about the whole incident being a fraud, and that the cash he withdrew from the bank was taken away by another man involved in the same case. He had been unable to contact the said friend ever since then. He subsequently left Hong Kong because prior to the incident he had promised some other friends to help look after their business on the Mainland.", "zh-HK": "申請人的答辯理由是他牽涉本案純粹是因為他幫助一位朋友。這位朋友之前告訴申請人他可能從親戚手上拿到一筆錢。他問申請人如果他真是有錢，申請人會不會協助他開辦酒樓業務。申請人表示同意。後來這位朋友告訴申請人他已獲得金錢，並要求申請人替他到律師行拿取支票及到銀行兌現有關支票。申請人照他的話去做。他辯稱他對整件事件是一宗欺詐案件完全不知情，他從銀行提出來的現金是涉案的另外一名男子拿走的。他之後一直聯絡不上他的朋友。他離開香港的原因是在案發前他已經答應了另一班朋友到內地替他們打理生意。" } }, { "doc_id": 147, "seg_id": 33, "translation": { "en": "Deputy Judge Sham rejected the Applicant’s defence, holding that the Applicant not only had knowledge of the fraudulent scheme but also participated in it by withdrawing the cash from the bank in person. He clearly knew the money came from a sham. In his Reasons for Sentence, the Deputy Judge said:", "zh-HK": "沈法官不接納申請人的答辯理由。他裁定申請人對這個騙局是知情的，並參與其中一個環節，他的角色就是親自到銀行提取那筆現金。他是清楚知道那筆錢是來自一個欺詐騙局的。沈法官在量刑理由書內這樣說：" } }, { "doc_id": 147, "seg_id": 34, "translation": { "en": "In the present case, the victim company was defrauded of more than $31 million, although for sentencing purposes I will of course only take into account the $15 million plus that the defendant dealt with. It is obvious from the facts of the case that the deceit was orchestrated and well-planned. I do not know how many people were involved and will not make any unnecessary speculation in that regard. I am just shocked to learn that, despite the involvement of professionals from the beginning of the transaction, the culprits still managed to obtain such a large sum of money by deceit.", "zh-HK": "「在本案，受害公司一共被騙去三千一百多萬元，當然本席只會就被告所處理的一千五百多萬元作出量刑。從案情顯示，這個行騙手法很明顯是經過精心策劃和佈署，至於當中涉及多少人，本席並不知曉，亦不會作無謂的揣測，本席只是驚嘆交易過程，從開始就由專業人士參與其內，但仍然都可以令不法之徒成功騙去這麼多金錢。" } }, { "doc_id": 147, "seg_id": 35, "translation": { "en": "Defendant, I am satisfied that you were well aware of such a sham and took an active part in it. It was submitted on your behalf that you were not the mastermind. But I can tell you that you certainly played a pivotal role in this incident. But for your willingness to let others use your name and to withdraw the money from the bank in person, this criminal enterprise would not have succeeded … .", "zh-HK": "被告人，本席認為你是清楚知道這騙局，並且積極參與其中，你的律師說，你並非主謀，但本席可以告訴你，在事件中，你肯定是扮演一個非常重要的角色，沒有你願意借出名義和親身到銀行提款，這個犯罪勾當就不能成事.....。" } }, { "doc_id": 147, "seg_id": 36, "translation": { "en": "I believe some other culprits in this incident are still at large, enjoying the ill-gotten money which originated from their crime. The logic is simple: if offenders who are caught do not have to pay a relatively high price for what they did, this will become a big temptation which lures even more like-minded people to deceptively obtain more money by taking their chances, because in this case they know that they will at most only be imprisoned for a short term even if they are caught.", "zh-HK": "在這次事件中，本席相信，有其他犯事者已逍遙法外，享受著他們犯罪得來的不義之財。道理很簡單，如果被找獲的犯事者也不用付出相對較大的代價，這只會成為極大的誘惑，只會鼓勵更多有相同想法的人以博一博的心態，去騙得更多，因為在這情況下，他們知道最終事敗，一旦要坐監也只不過是一段短的時間。" } }, { "doc_id": 147, "seg_id": 37, "translation": { "en": "In our daily lives, we often hear stories about people employing all sorts of illegal means to defraud others of money, and in some cases the amount involved exceeds that in the present case. Judging from the cases handled by the courts, this offence is so prevalent that, in my view, it can only be curbed by sufficiently deterrent sentences. Ideally, the term of the sentence should be linked to the amount of money being defrauded, but it is for the Court of Appeal to lay down sentencing guidelines in this connection at what the Court considers to be an appropriate time.", "zh-HK": "在我們日常生活中，經常可以聽到有人以各樣的不法手段去騙取他人金錢，有些例子所涉及的金額比本案還要多，從法庭所處理的案件來看，情況是非常普遍，本席認為最終的判刑須具足夠的阻嚇力才可以遏止這種歪風，最理想的是所騙的金錢和刑期掛勾，但這點只能留待上訴庭認為適當的時候向下級法院作出量刑指引。」" } }, { "doc_id": 147, "seg_id": 38, "translation": { "en": "Discussion", "zh-HK": "本庭的意見" } }, { "doc_id": 147, "seg_id": 39, "translation": { "en": "We accept that the underlying indictable offence in the present case concerns an orchestrated fraudulent scheme. Although professionals were involved in the whole transaction, they failed to notice anything deceitful and the Purchaser was defrauded of more than $30 million. In our judgment, the Applicant not only had knowledge of the scheme but also participated in it. He should therefore bear a higher level of culpability and receive a more severe sentence.", "zh-HK": "本庭同意涉及本控罪的原本公訴罪行是一宗經過周詳計劃的欺詐騙局。雖然整個買賣交易是有專業人士參予，但他們並沒有察覺案件存有欺詐成分，買家被騙去三千多萬元。本庭認為申請人不但對案件知情，他更參與其中一環節，所以他須負上較重的刑責，法庭須判處他一個較嚴峻的刑期。" } }, { "doc_id": 147, "seg_id": 40, "translation": { "en": "At the same time, we are not persuaded by the approach adopted by Deputy Judge Sham that in light of the prevalence of fraud cases in the society, a severe punishment should be imposed on the Applicant in order to achieve a deterrent effect. In determining whether a deterrent sentence is to be imposed for a particular type of offence, the court must first obtain information about the prevalence of that offence as a basis for sentencing, and also consider the usual sentences imposed for similar offences. In our view, a sentencing judge should follow the established sentencing principles and adopt a sentence appropriate to the type of offence in question. The judge should not enhance a sentence so that it departs from the usual sentence appropriate to the same type of offence, simply because of his own views on certain social issues. Such an approach is unfair to the defendant and, what is more, amounts to a disregard of sentencing principles.", "zh-HK": "但本庭不認同沈法官所說因社會上出現頗多的欺詐案，因而要對本案申請人施以重刑以起阻嚇作用的做法。法庭考慮是否對某類案件採取阻嚇性刑罰之前必須先取得有關類別案件的普遍性的資料作為理據，並須同時考慮同類案件一般被判處的刑期。本庭認法官在量刑時需要落實一些已經訂立的量刑原則及採用一個適用於該類案件的刑期。法官不應該只就他個人對社會事情的看法而將刑期調高至偏離一般同類案所件適用的刑期。法官這樣做不單止是對被告人不公道，更甚的是他忽視了量刑原則。" } }, { "doc_id": 147, "seg_id": 41, "translation": { "en": "Although Deputy Judge Sham said he would only sentence the Applicant on the basis of the $15,000,000.00 that he had dealt with, it appears from his Reasons for Sentence that of the sentence was in fact based on the facts of the fraud case. Although the Applicant had knowledge of the fraud and participated in the scheme, he was not charged with “fraud”. Judging from the Deputy Judge’s imposition of a term of as long as 6½ years, the only conclusion we can draw is that he had placed undue emphasis on the underlying indictable offence at the time of sentencing.", "zh-HK": "沈法官雖然說他只會就申請人所處理的 $15,000,000.00作出量刑，但從判刑理由書來看，有關的刑期其實是根據欺詐案件本身的案情而作出的。雖然申請人對有關的欺詐行為是知情的，並且參與其中一環節，但他並不是被控「欺詐罪」。另外從沈法官採用高達六年半監禁的刑期來看，本庭唯一的結論是他在量刑時的確是過份着重整個公訴罪行。" } }, { "doc_id": 147, "seg_id": 42, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 147, "seg_id": 43, "translation": { "en": "Having taken into account the sentences imposed for similar offences and the Applicant’s culpability, we consider that the appropriate term of imprisonment should be 5 years and 8 months.", "zh-HK": "本庭在考慮過同類案件的刑期及申請人的刑責後認為適當的刑期是五年八個月監禁。" } }, { "doc_id": 147, "seg_id": 44, "translation": { "en": "Ms. Winsome Chan, Senior Government Counsel, for the Respondent.", "zh-HK": "答辯人：由律政司高級政府律師陳淑慧代表。" } }, { "doc_id": 147, "seg_id": 45, "translation": { "en": "Mr. Paul Wu, instructed by Kevin Ng & Co. on assignment by the Legal Aid Department, for the Applicant.", "zh-HK": "申請人：由法律援助署委派吳建華律師行轉聘吳建五大律師代表。" } }, { "doc_id": 148, "seg_id": 1, "translation": { "en": "Hon Yeung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案書：" } }, { "doc_id": 148, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 148, "seg_id": 3, "translation": { "en": "On 22 August 2009, a Sergeant on board the Police Launch PL60 found a suspicious fishing vessel entering the waters of Hong Kong and going towards the waters of Tai O. The suspicious fishing vessel was later intercepted by another Police Launch PV80. Apart from the coxswain, the Sergeant found on board the vessel two Chinese males and ten Pakistani males who had no valid travel documents to prove that they had obtained the permission to enter Hong Kong.", "zh-HK": "2009年8月22日，警輪PL60號上之警長發現一隻可疑漁船駛進香港水域，向大澳水域前進。可疑漁船後來遭另一警輪PV80號截停。警長發現漁船上除了掌舵人外，另有兩名中國籍男子及10名巴基斯坦裔男子，他們全部都沒有有效旅遊證件證明他們獲准入境香港。" } }, { "doc_id": 148, "seg_id": 4, "translation": { "en": "The Applicant Tse Chi Hei was the coxswain of the fishing vessel. Under police interrogation, the Applicant admitted that he had arranged those twelve males to enter Hong Kong unlawfully from the Mainland by sea and had received from each of them Renminbi 450 dollars.", "zh-HK": "申請人謝自喜是漁船的掌舵人。在警員查問下，申請人承認安排上述12名男子經水路由內地非法進入香港，並收取他們每人450元人民幣。" } }, { "doc_id": 148, "seg_id": 5, "translation": { "en": "The Applicant later said that he was instructed in Shenzhen to carry the batch of illegal immigrants from Dongguan to Hong Kong by a fishing vessel.", "zh-HK": "申請人其後指有人在深圳指示他從東莞用漁船運載該批非法入境者到香港。" } }, { "doc_id": 148, "seg_id": 6, "translation": { "en": "According to the vessel examination report, the hull of the fishing vessel in question was in poor condition. There was no fire-extinguishing appliance or life-saving apparatus on board. It was not equipped with any navigation light for night-time navigation. Accordingly, it was not seaworthy.", "zh-HK": "根據驗船報告，涉案漁船的船身結構情況惡劣，船上沒有滅火工具或救生裝置，亦沒有航行燈以供夜間航行，故不適宜作航海用途。" } }, { "doc_id": 148, "seg_id": 7, "translation": { "en": "Subsequent to the above incident, the Applicant was charged with one count of “Assisting the passage to Hong Kong of a conveyance which carried unauthorized entrants” and one count of “Aiding and abetting a person to attempt to land in Hong Kong without permission”.", "zh-HK": "上述事件導致申請人被控第一項協助載有未獲授權進境者的運輸工具前來香港的旅程罪及第二項協助及教唆他人未經准許而企圖在香港入境罪。" } }, { "doc_id": 148, "seg_id": 8, "translation": { "en": "The first count was related to the two Chinese males on board the fishing vessel whereas the second count was related to the ten Pakistani males there.", "zh-HK": "第一項控罪和漁船上的兩名中國籍男子有關，而第二項控罪則和漁船上的10名巴基斯坦裔男子有關。" } }, { "doc_id": 148, "seg_id": 9, "translation": { "en": "Admittedly the two counts arose out of the same incident, but technically speaking the ten Pakistani males in question were not unauthorized entrants. As they were different from the two Chinese males, the Prosecution had to lay two charges against the Applicant.", "zh-HK": "雖然兩項控罪由單一事件引發，但因為涉案的10名巴基斯坦裔男子技術上不屬未獲授權進境者，和涉案的兩名中國籍男子不同，因此控方需要以兩項控罪檢控申請人。" } }, { "doc_id": 148, "seg_id": 10, "translation": { "en": "The Applicant pleaded guilty to the two charges before Deputy District Court Judge Johnny Chan who sentenced him to 4 years and 9 months imprisonment.", "zh-HK": "申請人在區域法院陳仲衡法官席前承認兩項控罪，結果被判入獄共4年9個月。" } }, { "doc_id": 148, "seg_id": 11, "translation": { "en": "Deputy Judge Chan took 6 years and 27 months as the sentencing starting points for the two charges, and reduced the sentences to 4 years and 18 months respectively after giving the Applicant one-third discount for his guilty pleas.", "zh-HK": "陳法官分別以6年及27個月作為兩項控罪的量刑基準，並因申請人認罪而將刑期扣減三分一至4年及18個月。" } }, { "doc_id": 148, "seg_id": 12, "translation": { "en": "Deputy Judge Chan said that the involvement with the ten illegal immigrants specified in Charge 2 was not reflected in Charge 1, and the cross-border element of Charge 2 had no connection with Charge 1. Deputy Judge Chan finally ordered 9 months of the sentences for the two charges be served consecutively, resulting in a total sentence of 4 years and 9 months’ imprisonment.", "zh-HK": "陳法官指出控罪二之10名非法入境者沒有在控罪一反映，而控罪二之跨國成分亦和控罪一無關。陳法官最終下令兩項控罪中的判刑有9個月需要分期執行，而導致4年9個月之總判刑。" } }, { "doc_id": 148, "seg_id": 13, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 148, "seg_id": 14, "translation": { "en": "Mr. James Tze, Counsel for the Applicant, agreed to the sentencing starting points adopted by the trial judge for the respective charges, but he emphasized that the two charges arose from the same incident and should not be served consecutively. Mr. Tze also submitted that the total sentence of 4 years and 9 months imprisonment was manifestly excessive.", "zh-HK": "代表申請人之謝英權大律師認同原審法官就個別控罪所採納之量刑基準，但強調兩項控罪由同一事件引發，故判刑不應分期執行。謝大律師亦指4年9個月之總判刑屬明顯過重。" } }, { "doc_id": 148, "seg_id": 15, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 148, "seg_id": 16, "translation": { "en": "Although the trial judge indicated that he had taken into account at the time of sentencing the respective circumstances of the two charges when determining the starting points of the two charges, it is questionable whether the sentences should be served consecutively given that the two charges arose from the same incident. But at the end the only matter to be decided by this Court is whether the overall sentence is manifestly excessive or not.", "zh-HK": "雖然原審法官判刑時表示在釐定兩項控罪之量刑基準時，分別考慮兩項控罪之個別情況，但兩項控罪源自同一犯罪行為，判刑是否需要分期執行有值得商榷之處。但最終本庭只需考慮整體判刑是否明顯過重。" } }, { "doc_id": 148, "seg_id": 17, "translation": { "en": "The usual sentencing starting point for a charge of “conveying unauthorized entrants to Hong Kong by a vessel for monetary gains” is 4 years imprisonment (see R v Ho Siu-lun [1987] HKLR 1086). If the defendant is the coxswain of the vessel or has taken part in organizing or planning the journey, the sentencing starting point should be one of 5 years (See R v Wong Yin-lung [1995] 1 HKCLR 151 and R v Pang Wing [1996] 1 HKC 624, etc.). Where there are other aggravating factors such as hiding the illegal immigrants in places where it will be difficult for them to escape in case of an emergency, the dilapidated state of the vessel and the lack of life-saving apparatus, risking the life of passengers on board or an extremely large number of illegal immigrants being on board, the starting point can be raised further.", "zh-HK": "為獲取金錢利益而用船接載未獲授權進境者進入香港罪，一般量刑基準為4年監禁（見 R v Ho Siu-lun [1987] HKLR 1086案）。假若被告人是有關船隻的掌舵人或是有份參與旅程的組織或安排，則量刑基準應為5年（見R v Wong Yin-lung [1995] 1 HKCLR 151和 R v Pang Wing [1996] 1 HKC 624等案）。若有其他加重罪責因素，包括將非法入境者藏在不容易逃生地方、船隻破舊及沒有救生設備，令船上人士生命安全受威脅、或船上非法入境者數目極大，量刑基準更可以提高。" } }, { "doc_id": 148, "seg_id": 18, "translation": { "en": "In the present case, the Applicant was the coxswain of the fishing vessel and the structure of the vessel was in poor condition. There was no life-saving apparatus. The number of illegal immigrants was as many as twelve. Such are aggravating factors by which the sentencing starting point can be increased to one of more than 5 years.", "zh-HK": "在本案，申請人是漁船的舵手;漁船結構惡劣、沒有救生裝置，和非法入境者數目達12人等等都是加重罪責因素，可令量刑基準提升超過5年。" } }, { "doc_id": 148, "seg_id": 19, "translation": { "en": "However this Court is of the view that unless there are extremely unusual reasons, the sentencing starting point for a charge of “conveying unauthorized entrants into Hong Kong by a fishing vessel” should not, even with the abovementioned aggravating factors, be higher than 6 years’ imprisonment.", "zh-HK": "但本庭認為除非有個別極為特殊因素，以漁隻接載未獲授權進境者進入香港的罪行，即使有上述加重罪責因素，量刑基準不應超越6年。" } }, { "doc_id": 148, "seg_id": 20, "translation": { "en": "The present case does not involve particularly elderly, young or disabled illegal immigrants. There is no evidence to show that the twelve illegal immigrants were hidden in a place where it could be difficult for them to escape in case of an emergency. Mr. Raymond Cheng, Senior Public Prosecutor, who appeared on behalf of the Respondent, emphasized that the illegal immigrants would have considerable difficulty if they needed to make escape. But this Court is of the view that such difficulty would be present in every case where illegal immigrants are conveyed by a fishing vessel. Although the fishing vessel was not seaworthy, it was not particularly dilapidated. There is no evidence to show that the fishing vessel ran the risk of sinking in the journey.", "zh-HK": "本案不涉及特別年長，特別年幼或任何傷殘非法入境者。沒有證據顯示12名非法入境者藏身之處的環境可能令他們遇險時無法逃生。答辯人代表大律師鄭凱聰高級檢控官強調非法入境者逃生時會遇上相當困難，但本庭認為該些困難在所有以漁船接戴非法入境者的案件都必會存在。涉案的漁船雖然不適宜作航海用途，但亦非特別殘破，亦沒有證據顯示在旅程中，漁船會有沉沒的危險。" } }, { "doc_id": 148, "seg_id": 21, "translation": { "en": "The Applicant has no previous record of conviction in Hong Kong. This Court considers that in view of the background of the case, even if the aggravating factors are taken into account, a total sentencing starting point of 6 years is adequate. The Applicant’s final sentence of 4 years and 9 months represents a starting point of 7 years and 3 months which is manifestly excessive.", "zh-HK": "申請人在香港沒有犯罪記錄。本庭認為以本案的背景而言，即使將有關加重罪責因素考慮在內，總量刑基準6年已足夠。申請人最終的4年9個月判刑等同約7年3個月之量刑基準，屬明顯過重。" } }, { "doc_id": 148, "seg_id": 22, "translation": { "en": "We allow the Applicant’s application to appeal against sentence. Taking his application as the formal appeal, we allow the Applicant’s appeal. The respective sentences of the two charges are upheld but we order the sentences of the two charges to run concurrently. The 4 years and 9 months sentence of the Applicant is hereby reduced to 4 years.", "zh-HK": "本庭批准申請人就判刑上訴，並視其申請為正式上訴。本庭裁定申請人上訴得直。本庭維持兩項控罪的個別判刑，但下令兩項控罪的判刑同期執行。申請人的4年9個月判刑減為4年。" } }, { "doc_id": 148, "seg_id": 23, "translation": { "en": "James Tze, instructed by the Legal Aid Department, for the Applicant", "zh-HK": "答辯人：由律政司高級檢控官鄭凱聰代表。" } }, { "doc_id": 148, "seg_id": 24, "translation": { "en": "Raymond Cheng, Senior Public Prosecutor of the Department of Justice, for the Respondent", "zh-HK": "申請人：由法律援助署轉聘謝英權大律師代表。" } }, { "doc_id": 149, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 149, "seg_id": 2, "translation": { "en": "The applicant was convicted by Deputy High Court Judge Albert Wong (as he then was) sitting with a jury of one count of conspiracy to commit robbery and was sentenced to a term of imprisonment of 8 years and 6 months. The applicant lodged an application for leave to appeal against conviction. We heard the application and granted leave to appeal to the applicant and treating the application as the appeal proper, we allowed the appeal, quashed his conviction and set aside the sentence. We also allowed the applicant to submit his affidavit dated 2 July 2015 as additional evidence in this application.", "zh-HK": "申請人被高等法院黃崇厚暫委法官（當時官階）及陪審團裁定一項「串謀犯搶劫罪」罪名成立及被判監八年六個月。申請人就定罪提出上訴許可申請。本庭在聆訊後給予許可，視申請為正式上訴，批准上訴及撤銷定罪及刑期。另外，本庭批准申請人提交他2015 年7月2日的誓章作為本申請的額外證據。" } }, { "doc_id": 149, "seg_id": 3, "translation": { "en": "The respondent did not have any objection to the applicant’s application and appeal, nor did they request us to order a retrial.", "zh-HK": "答辯人不反對申請人的申請及上訴，亦不要求本庭命令案件重審。" } }, { "doc_id": 149, "seg_id": 4, "translation": { "en": "The applicant had been remanded in custody since his arrest until we granted him bail on 14 July of this year. The applicant had been remanded for a period of about 33 months.", "zh-HK": "申請人在被補後一直被羈押直至本年7月14日獲本庭給予保釋。申請人的羈押期約33個月。" } }, { "doc_id": 149, "seg_id": 5, "translation": { "en": "We now give reasons for our judgment.", "zh-HK": "以下是本庭的判決理由。" } }, { "doc_id": 149, "seg_id": 6, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 149, "seg_id": 7, "translation": { "en": "1)Prosecution evidence", "zh-HK": "1) 控方證據" } }, { "doc_id": 149, "seg_id": 8, "translation": { "en": "The charge alleged that the applicant conspired with Lam Hing to commit the offence of robbery between 1 March 2011 and 14 July 2011.", "zh-HK": "控罪指申請人於2011年3月1日至2011年7月14 日期間與林興串謀犯「搶劫」罪。" } }, { "doc_id": 149, "seg_id": 9, "translation": { "en": "The prosecution relied on 4 prosecution witnesses, who were robbed by a male respectively on 16 May, 13 June, 13 July and 14 July 2011 inside a lift of a building while on their way back to the office after withdrawing money from the bank.", "zh-HK": "控方依賴四名控方證人，他們分別在2011年5月16 日、6月13日、7月13日及7月14日在銀行提取現金後返回辦事處途中，在大廈電梯內被一名男子搶劫。" } }, { "doc_id": 149, "seg_id": 10, "translation": { "en": "PW1 and PW2 said that they were robbed of $20,000 on 16 May 2011 and 13 June 2011 respectively. PW3 said that she was robbed of $2,000 on 13 July 2011. PW5 said that she was robbed on 14 July 2011, but the robber was unable to rob her of any money.", "zh-HK": "控方第一及第二證人指在2011年5月16日及2011 年6月13日被分別搶去$20,000。控方第三證人指在2011年7 月13日被搶去$2,000。控方第五證人指在2011年7月14日被賊人行劫，但賊人未能搶去她的金錢。" } }, { "doc_id": 149, "seg_id": 11, "translation": { "en": "In the present case, the prosecution also relied on PW4, that is, the Lam Hing as alleged in the charge, to give evidence against the applicant.", "zh-HK": "控方在案件亦依賴控罪所指的林興為控方第四證人，指證申請人。" } }, { "doc_id": 149, "seg_id": 12, "translation": { "en": "Lam Hing was previously arrested by the police on 11 August 2011 and pleaded guilty to 3 counts of robbery in the High Court in June 2012, that is, the offences in relation to the robbing of PW1, PW2 and PW3. The prosecution agreed that the charge against Lam Hing in respect of the robbery which took place on 14 July 2011 be dismissed.", "zh-HK": "林興早前在2011年8月11日被警方拘捕及在2012年6 月在香港高等法院承認三項「搶劫」罪，即涉及控方第一、第二及第三證人遭搶劫的罪行。控方同意撤銷針對林興2011 年7月14日劫案的控罪。" } }, { "doc_id": 149, "seg_id": 13, "translation": { "en": "On 2 August 2012 Lam Hing indicated to the police that he was willing to be a witness for the prosecution to testify against the applicant for conspiring with him to commit the 4 robberies. As Lam Hing agreed to give evidence in the present case, the Secretary for Justice granted him immunity from prosecution as regards the robbery that took place on 14 July 2011.", "zh-HK": "林興於2012年8月2日向警方表示願意成為控方證人，指控申請人與他串謀干犯該四宗劫案。就林興在本案同意作供，律政司就涉及2011年7月14日的劫案給林興免予起訴書。" } }, { "doc_id": 149, "seg_id": 14, "translation": { "en": "In the present case, Lam Hing testified that he had plotted with the applicant to rob bank customers who withdrew money from the bank. Their arrangement was to have the applicant entered the bank first, and he would call Lam Hing after he spotted a suitable money withdrawer. Lam Hing would then follow these persons to their office, and rob them with a knife inside a lift. Lam Hing admitted that, on 16 May 2011, he and the applicant had split the $20,000 obtained from the robbery he committed. He also stated that he and the applicant had split the money obtained from the robbery on 13 June 2011. Lam Hing stated that no money could be obtained from the robberies on 13 and 14 July 2011. He stated that the four robberies were proposed by the applicant. Lam Hing said that he had two previous robbery convictions. He knew how to commit a robbery and did not require the applicant to teach him what to do.", "zh-HK": "林興在本案作供指他與申請人合謀搶劫在銀行提取金錢的客戶。他們的安排是申請人先進入銀行，看到合適的提款的人士後打電話給林興。林興接着尾隨這些人士回到他們的辦事處，在電梯內用刀進行搶劫。林興承認在2011年5 月16日與申請人攤分他劫得來的$20,000。林興亦指他與申請人攤分在2011年6月13日所劫得的金錢。林興指他在2011年7月13日及14日的劫案都取不到金錢。林興指四宗搶劫都是申請人建議的。林興說他以前有兩次「搶劫」罪定罪的記錄。他知道怎樣行劫，不需要申請人教他怎樣做。" } }, { "doc_id": 149, "seg_id": 15, "translation": { "en": "PW7 was a police officer. He admitted that the applicant was his informer. Between July and August 2011, the applicant had provided information concerning some robberies involving Lam Hing, but the applicant did not specify the cases to which the information related. After PW7 received the information, he reported the same to his superior officer. PW7 denied that the applicant had tipped him off before each of the four aforesaid cases took place. He also denied that the applicant had contacted him during the course of these four cases.", "zh-HK": "控方第七證人是一名警員。他承認申請人是他的線人。在2011年7月及8月期間，申請人曾經提供林興涉及一些搶劫案件的資料，但申請人沒有說明是哪一宗案。當控方第七證人收到資料後向上司會報。控方第七證人否認就上述四宗案件，申請人在每宗案件發生之前通知他。他亦否認在四宗案件發生過程裡面，申請人和他有接觸。" } }, { "doc_id": 149, "seg_id": 16, "translation": { "en": "2)The applicant’s defence", "zh-HK": "2) 申請人的答辯" } }, { "doc_id": 149, "seg_id": 17, "translation": { "en": "On 24 August 2011 the applicant was arrested in connection with the offences of robbery, and the police allowed him bail on his own recognizance of $500. This went on until 15 March 2012 when the applicant was discharged unconditionally, and not subjected to any bail conditions.", "zh-HK": "申請人於2011年8月24日就有關「搶劫」罪被拘捕，而警方批准申請人以自簽$500保釋外出。延至2012年3月15 日，申請人獲無條件釋放，不用保釋。" } }, { "doc_id": 149, "seg_id": 18, "translation": { "en": "On 17 October 2012 the police re-arrested the applicant.", "zh-HK": "2012年10月17日警方再次拘捕申請人。" } }, { "doc_id": 149, "seg_id": 19, "translation": { "en": "The applicant gave evidence in his defence. The applicant stated that Lam Hing had invited him to commit robbery together, but he refused. The applicant knew a person named “Ah Fai”, who told him that Lam Hing would commit robbery. The applicant said that he and “Ah Fai” entered into agreement to inform the police of Lam Hing’s actions in return for remuneration. The applicant said that he had contacted PW7 prior to and during the course of these 4 robberies and provided him with information on Lam Hing’s actions. PW7 instructed the applicant to look further into the matter, and to find out who Lam Hing’s partner in crime was. The applicant said that, in those 4 incidents, he did show up in the banks concerned, but he was there merely to look further into the matter and to comply with PW7’s instructions, in order to find out who Lam Hing’s partner was. He had absolutely no intention to commit any offence, nor was he there to look for targets to rob.", "zh-HK": "申請人作供自辯。申請人指林興曾經邀請他一同搶劫，但被他拒絕。申請人認識一名「阿輝」的人。「阿輝」對他說林興會進行搶劫。申請人說他與「阿輝」協議，將林興的行動通知警方，換取酬金。申請人說在該四宗搶劫事件發生之前及期間，他聯絡控方第七證人，提供林興行動的資料。控方第七證人吩咐申請人跟進，並且查清楚誰是林興的犯事拍檔。申請人說他在該四宗事件都曾經在相關的銀行出現，但不過是為跟進及遵從控方第七證人的吩咐，看看誰是林興的拍檔，他絕無犯罪的心，更不是在尋找搶劫的目標。" } }, { "doc_id": 149, "seg_id": 20, "translation": { "en": "Lam Hing successfully obtained reduced sentence", "zh-HK": "林興成功減刑" } }, { "doc_id": 149, "seg_id": 21, "translation": { "en": "On 28 November 2013, Lam Hing sought leave to appeal against his sentence of 6 years’ imprisonment out of time. His grounds were that, after he was sentenced, he provided to the police the particulars of his accomplice, that is, the applicant, in the three robberies he was involved, and that enabled the police to successfully arrest the applicant. Lam Hing also acted as a prosecution witness to testify against the applicant, and that enabled the prosecution to successfully prosecute the applicant. The Court of Appeal allowed Lam Hing’s application and reduced his original sentence of 6 years’ imprisonment to one of 5 years.", "zh-HK": "林興在2013年11月28日就其六年監禁刑期提出逾期上訴申請，申請理由是他在判刑後向警方提供了他所涉及三宗「搶劫」案件的共犯申請人的資料，使警方成功拘捕申請人，林興更出任控方證人，指控申請人令控方成功檢控申請人。上訴法庭批准林興的申請，將他原本六年監禁的刑期改判為五年監禁。" } }, { "doc_id": 149, "seg_id": 22, "translation": { "en": "The first ground of appeal", "zh-HK": "上訴理由一" } }, { "doc_id": 149, "seg_id": 23, "translation": { "en": "The first ground of appeal advanced by the applicant was that the prosecution did not disclose to the defence important material which could affect the credibility of the main prosecution witness. This constituted a material irregularity in the trial, and rendered the trial unfair.", "zh-HK": "申請人提出的第一項上訴理由是控方沒有向辯方披露可影響控方主要證人的可信性的重要資料，導致審訊存有關鍵性的欠妥及使審訊不公。" } }, { "doc_id": 149, "seg_id": 24, "translation": { "en": "Undisclosed evidence", "zh-HK": "未披露的證據" } }, { "doc_id": 149, "seg_id": 25, "translation": { "en": "In April 2015 the applicant successfully obtained legal aid through help from the Clinical Legal Education Centre of the University of Hong Kong. The Legal Aid Department assigned the applicant’s current lawyers to represent him. The applicant’s lawyers successfully obtained from the Department of Justice Lam Hing’s telephone communication records covering the material times of the offences. However, the prosecution did not disclose these records to the applicant or his legal representative prior to the trial in the present case.", "zh-HK": "申請人在2015年4月透過香港大學臨床法律教育服務中心的協助，成功取得法律援助。法律援助署委派申請人現時的律師代表申請人。申請人的律師從律政司成功取得案發時林興的電話通訊記錄，但控方並沒有在本案審訊前將這些記錄披露給申請人或其代表律師。" } }, { "doc_id": 149, "seg_id": 26, "translation": { "en": "Lam Hing’s evidence was that, having found a robbery target in the bank, the applicant would call Lam Hing to inform him of the target person’s features, and let Lam Hing carry out the robbery. However, by referring to Lam Hing’s telephone communication records obtained from the police, it can be seen that in the three robberies that took place on 13 June, 13 July and 14 July 2011, contrary to what Lam Hing had claimed, the applicant actually did not have any telephone contact with Lam Hing during the time he remained in the bank or even before the robbery took place.", "zh-HK": "林興的證供是申請人在銀行尋找到打劫的目標後，會打電話給林興，告訴他目標人的特徵，讓林興進行搶劫。但從警方獲得林興的電話通訊記錄可見，在2011年6月13日、7 月13日及7月14日的三宗劫案中，申請人根本就沒有如林興的聲稱在銀行逗留期間以至搶劫發生前與林興電話聯絡。" } }, { "doc_id": 149, "seg_id": 27, "translation": { "en": "Mr Eric Cheung, solicitor representing the applicant, submitted that Lam Hing clearly had the motive to frame the applicant. Lam Hing once said in his evidence that it was his own speculation that the applicant provided information to the police to accuse him of committing the relevant robberies. Many of the key issues referred to in Lam Hing’s oral testimony in court were self-contradictory, and there were repeated substantial inconsistencies between them and those in the version he stated to the police before the trial. When Lam Hing was cross-examined on the inconsistencies between his evidence and his previous statements, he frequently exhibited an utterly unreasonable attitude, failed to provide logical explanations, and repeatedly admitted of lying to the police earlier. The relevant phone records were obviously in direct contradiction to what Lam Hing said in his evidence, showing that he made up the facts to frame the applicant. The prosecution did have the duty to provide the relevant material to the defence. However, the prosecution did not do so, and up to the current moment, they had not explained why they did not do so.", "zh-HK": "代表申請人的張達明律師陳述，林興顯然有誣衊申請人的動機。林興在證供上曾說過他自己估計是申請人向警方提供資料指控他干犯有關劫案。林興在法庭上的口供有不少關鍵問題上前言不對後語，這些與他在審訊前向警方所陳說的版本存有多次實屬矛盾。林興在被盤問有關他的證供與早前所作的陳述有矛盾之處，經常表現蠻不講理的態度及不能作出合理解釋及多次承認早前向警員說慌。有關的電話記錄跟林興的證供明顯有直接矛盾，顯示他是捏造事實誣衊申請人。控方是有責任向辯方提供有關的資料，但控方沒有這樣做及到現時亦沒有解釋為何沒有這樣做。" } }, { "doc_id": 149, "seg_id": 28, "translation": { "en": "Ms Anna Lai, counsel for the respondent, explained to us about the handling of the telephone communication material in the present case. The police had requested for and obtained from the telecommunications company the telephone records of Lam Hing and the applicant from June to July 2011 (the telecommunications company no longer retained the communication records for the month of May). These records were saved in the office computer of an inspector formerly in charge of the case. The police had sought legal advice from the Department of Justice in October 2011. Both the documentary file and the accompanying comprehensive report submitted did not mention the investigation on the mobile phones of Lam Hing and the applicant, nor the call records obtained. In August 2012, when another inspector formerly in charge of the case sought legal advice from the Department of Justice, he prepared another comprehensive report dated 16 August 2012, which stated inter alia that due to the lapse of time, the call records of Lam Hing and the applicant could not be obtained. Having received enquiries from the solicitors firm concerning the phone records, the inspector currently in charge of the case looked up the documentary file of this case, and confirmed that it contained no printed copy of any telephone call records. Subsequently, this inspector checked the office computer, and found from it the telephone call records provided by the telecommunications company earlier. The police subsequently handed over a printed copy of the relevant telephone records to the solicitors firm.", "zh-HK": "代表答辯人的黎婉姬大律師向本庭解釋本案電話通訊資料處理一事。警方曾向電訊公司要求及獲得林興與申請人在2011年6月至7月的電話記錄（電訊公司已不保留5月份通訊的記錄）。這些記錄儲存在本案前案件主管督察的辦公室的電腦內。警方曾就本案在2011年10月向律政司尋求法律意見，上呈的文件檔案及其綜合報告均沒有提及對林興及申請人手提電話的調查及獲得的通話記錄。另一位前案件主管督察在2012年8月就尋求律政司法律意見而撰寫日期為2012年8 月16日的綜合報告,其中內容指因時間流逝而得不到申請人及林興的通話記錄。本案現任案件主管督察在接獲律師行就電話記錄查詢後，查閱本案的文件檔案，確認當中沒有任何電話通話記錄的列印本。其後該主管檢視辦公室電腦，從中找到當日由電訊公司提供的電話通話記錄。警方其後將有關的電話記錄的列印本交予律師行。" } }, { "doc_id": 149, "seg_id": 29, "translation": { "en": "Prosecution's duty to disclose material", "zh-HK": "控方披露資料責任的原則" } }, { "doc_id": 149, "seg_id": 30, "translation": { "en": "In HKSAR v. Lee Ming Tee and The Securities and Futures Commission (2003) 6 HKCFAR 336, the Court of Final Appeal stated clearly that it was the prosecution's duty to disclose to the defence relevant material (including information) which may undermine its case or advance the defence case. The stringent and firm obligation of disclosure will maintain the criminal trial as the appropriate forum for determining the truth or falsity of criminal allegations.", "zh-HK": "香港終審法院在香港特別行政區對李明治對證劵及期貨事務監察委員會(HKSAR  v. Lee Ming Tee and The Securities and Futures Commission) (2003) 6 HKCFAR 336 一案清晰指出，控方的責任是向辯方披露可能會削弱控方案情或對辯方案情有幫助相關資料（包括資訊）。嚴謹和堅定的披露責任，將使刑事審訊得以繼續成為判定刑事指控的真偽的適當訴訟方式。" } }, { "doc_id": 149, "seg_id": 31, "translation": { "en": "In HKSAR v. Shum Leung (transliteration) (CACC632/2002), the Court of Appeal ruled that, as the prosecution did not disclose certain material evidence, the conviction in that case was unsatisfactory, with the result that the appeal was allowed and the conviction quashed.", "zh-HK": "上訴法庭亦在香港特別行政區訴沈良 (CACC 632/2002)一案裁決由於控方沒有披露某些關鍵性的證供，令定罪的裁決不穩妥，從而批准上訴，撤銷定罪。" } }, { "doc_id": 149, "seg_id": 32, "translation": { "en": "Our views", "zh-HK": "本庭的意見" } }, { "doc_id": 149, "seg_id": 33, "translation": { "en": "In the present case, the evidence of the four victims in the robberies cannot directly accuse the applicant of committing the subject offence. The only evidence that can connect the applicant to the offence comes from Lam Hing, who was a tainted witness. He himself had committed criminal offences, yet at the same time he testified that the applicant was the accomplice in those four robberies. The court must evaluate the evidence from a tainted witness with care and prudence. This is because a tainted witness may testify against another person for he wants to save his own skin or exonerate himself, or he wishes to receive a reduced sentence or seek vengeance, or for other reasons.", "zh-HK": "在本案，四名被劫的受害人的證供不能直接指控申請人干犯本案控罪。唯一可以將申請人與控罪連上關係的證供來自林興。林興是一名污點證人，他本身干犯刑事罪行，但同時卻指證申請人是該四宗劫案的共犯。法庭在處理這些污點證人的證供時必須小心謹慎審核，原因是這些污點證人可能是為了自保、脫罪或希望獲得減刑、報仇或有其他原因指證另外一名人士。" } }, { "doc_id": 149, "seg_id": 34, "translation": { "en": "In the present case, Deputy Judge Wong had already repeatedly given the jury detailed directions that, if they could not be sure that Lam Hing’s accusations were true, they had to find the applicant not guilty. However, we are of the view that the relevant telephone communication records would substantively and materially affect the jury’s evaluation on whether Lam Hing’s testimony was credible. If the jury had access to such independent and objective material during the trial, it is very likely that they would not have accepted Lam Hing’s evidence and, consequently, would return a verdict of not guilty on the applicant. In our view, the prosecution have not discharged their duty to disclose the material. This slip had deprived the jury a full grasp of the facts necessary for arriving at the correct verdict, the conviction was thus unsafe. It is on this ground we allow the appeal.", "zh-HK": "在本案，雖然黃法官已經重複及詳細指導陪審員，若他們不能肯定林興的指控屬實的話，他們必須判申請人無罪，但本庭認為有關的電話通訊記錄是會實質及關鍵性地影響陪審團對林興證供是否可信的審核。若陪審團在審訊時獲得這些獨立及客觀的資料，他們極可能是不會接納林興證供，以致裁定申請人被控的罪名不成立。本庭認為控方沒有履行披露資料的責任，這失誤令陪審團未能掌握全面的案情，作出正確的裁決，從而令定罪不穩妥。基於這個理由，本庭批准上訴。" } }, { "doc_id": 149, "seg_id": 35, "translation": { "en": "In our view, the Department of Justice and the police need to look further into the way the police handled those telecommunications records in the present case in order to prevent similar incidents from happening in the future.", "zh-HK": "本庭認為律政司及警方需要跟進本案警方處理該電訊記錄的方法，避免再次發生同類事故。" } }, { "doc_id": 149, "seg_id": 36, "translation": { "en": "Mr Cheung also submitted that there was direct and clear guidance with regard to the exercising of due diligence on the prosecutor’s part to disclose relevant material in The Statement of Prosecution Policy and Practice – Code for Prosecutors issued by the Department of Justice in 2009, but the guidance was shortened in the Prosecution Code 2013 published in 2013. We are not required to discuss the contents of these two Codes, but we hope the Department of Justice will review the relevant contents to find out whether any improvement is needed.", "zh-HK": "張律師亦提出律政司2009年頒布的「檢控政策及常規」，就檢控人員盡職披露相關資料的責任有直接清晰的提點，但這些提點卻在新的2013年發布的「檢控守則2013」中被簡略刪掉。本庭不須就這兩份守則的內容作出討論，但冀律政司會檢討有關內容是否需要改善。" } }, { "doc_id": 149, "seg_id": 37, "translation": { "en": "The second ground of appeal", "zh-HK": "第二項上訴理由" } }, { "doc_id": 149, "seg_id": 38, "translation": { "en": "In his second ground of appeal, the applicant submitted that there was a lurking doubt in the present case, and the prosecution case lacked inherent probability. As a result, the applicant’s conviction was neither safe nor satisfactory and had to be quashed. As we have allowed the appeal on the first ground and quashed the conviction, it is unnecessary to discuss this second ground of appeal.", "zh-HK": "申請人的第二上訴理由是本案存有「潛在疑點」(lurking doubt)，控方案情缺乏內含潛在可能性(inherent probability)，導致對申請人的定罪不安全或不穩妥，應予撤銷。由於本庭已經根據第一上訴理由批准上訴，撤銷定罪，故此無須討論這第二項上訴理由。" } }, { "doc_id": 149, "seg_id": 39, "translation": { "en": "Eric Cheung, Solicitor Advocate, instructed by ONC Lawyers, assigned by Director of Legal Aid, for the applicant", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員黎婉姬代表。" } }, { "doc_id": 149, "seg_id": 40, "translation": { "en": "Anna Lai, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the respondent", "zh-HK": "申請人：由法律援助署委派柯伍陳律師事務所轉聘訟辯律師張達明代表。" } }, { "doc_id": 150, "seg_id": 1, "translation": { "en": "Leong, J.A. (giving the judgment of the court):", "zh-HK": "上訴法庭法官梁紹中（宣讀上訴法庭判案書）:" } }, { "doc_id": 150, "seg_id": 2, "translation": { "en": "The applicant, LING Chi-yip was convicted of one count of robbery and sentenced to 4 years’ imprisonment in the District Court. He now applies for leave to appeal against conviction.", "zh-HK": "申請人凌置業日前在區域法院被裁定一項搶劫罪罪名成立，被判刑監禁四年。現申請准許上訴，推翻判罪。" } }, { "doc_id": 150, "seg_id": 3, "translation": { "en": "It is stated in the Particulars of Offence that on 31 December 1996, the applicant robbed WONG King of his property including one wallet and cash HK$850-in On Po Village ( 安埔村 ),Sheung Shui.", "zh-HK": "罪行詳情指申請人在1996年12月31日在上水安埔村搶劫王瓊劫去財物包括一個錢包和現金港幣850元。" } }, { "doc_id": 150, "seg_id": 4, "translation": { "en": "The prosecution case was as follows: WONG King was a taxi driver. On the night in question, he drove a taxi with the registration number GK761 . He picked up 3 men in the vicinity of Argyle Street and took them to Sheung Shui. On the way, one of the men told him to drive into a road with an unknown name and stop. Then, a man grabbed round his neck with his arm and told him to take out his money. After he had taken out HK$500-, another man took away his wallet and money from behind. Then, the three men fled into the village. WONG King could only tell that one of the three men wore a woollen cap while another one put on a baseball cap.", "zh-HK": "控方案情是這樣：王瓊是一名的士司機。事發當晚，他駕駛的士GK761。在九龍亞皆老街附近，接載三名男子前往上水。途中，其中一名男子叫他駛入一條不知名的路上停下。其後，一名男子用手箍他的頸，叫他拿出錢來。他取出港幣500元後，另一名男子從他後面拿走了他的錢包和錢。該三名男子後來逃入村中。王瓊只能指出三人中一人是戴著一件毛帽的，另有一人則戴上壘球帽。" } }, { "doc_id": 150, "seg_id": 5, "translation": { "en": "WONG King then made a report to the police. The police arrived and took him to patrol the vicinity in police car with a view to intercepting the culprits. At that juncture, another police patrol car, acting on the information received, intercepted a taxi with the applicant and the two other Defendants on board. While the police was questioning the three men separately, WONG King arrived in the police car. Wong King pointed out right away that the 1st Defendant was one of the culprits. The police found a baseball cap on his person upon search.", "zh-HK": "王瓊於是報警。警員到場後，用警車載著他四處巡邏，希望能堵截賊人。此時間，另一警方巡邏車接獲報告後，截停了一輛的士。車內有申請人和其他兩名被告。警員於是向三人個別查問。而載著王瓊的警車亦在這時到達。王瓊立刻指出第一被告人是其中的一個賊人。警員從他的身上找到一件壘球帽。" } }, { "doc_id": 150, "seg_id": 6, "translation": { "en": "PW4, PC49235, made enquiries of the applicant about the robbery case. The applicant denied having taken part in the robbery but was, nonetheless, put under arrest and taken to Sheung Shui Police Station. In the police station, PW4 post-recorded in his note-book the account of the arrest and what the applicant had told him. However, the prosecution did not produce the post-recorded evidence to the Court. This was because the applicant gave evidence that he had not taken part in the robbery when he objected to the production of the record of interview. Moreover, the prosecution could only, under the law, produce the confession statement of a defendant. For these reasons, the post- record was not produced and it did not cause him any disadvantage.", "zh-HK": "控方第四証人警員49235向申請人查問劫案事件。申請人否認曾參與搶劫。雖然如此，申請人仍被拘捕及帶回上水警署。在警署內，第四証人把拘捕過程和申請人所說的一切，補錄在他的記事冊內。但控方沒有把補錄証供呈堂。因為申請人在反對會面紀錄呈堂時，作証否認參與搶劫。而且，在法律上，只有被告的供認，控方才可以呈堂。因此，補錄沒有呈堂，對他並沒有構成不利。" } }, { "doc_id": 150, "seg_id": 7, "translation": { "en": "Shortly afterwards, PW6, DPC8684, interviewed the applicant in the police station. The record of interview shows that the applicant confessed to robbery at the time of the interview. He said to the detective that, “for this robbery, I took a part, but it is not my idea. It is ‘Tiger’ who suggested doing robbery.”", "zh-HK": "稍後，控方第六証人探員8684在警署內會見申請人。會面紀錄顯示在會面時，申請人承認搶劫。他對探員說：「呢次打劫，我係有份。但是唔係我提出，係老虎提議去打劫嘅。」" } }, { "doc_id": 150, "seg_id": 8, "translation": { "en": "The applicant objected to the production of the record of interview by the prosecution. He alleged that he had been assaulted by the police and that PW6 had induced him to confess to robbery. However, PW4 and PW6 gave evidence to deny assaulting the applicant or inducing him to make a confession.", "zh-HK": "申請人反對控方把會面紀錄呈堂。他指稱曾經被警員毆打，而且第六証人曾誘使他供認搶劫。但第四和第六証人都作証否認曾毆打或誘使申請人供認。" } }, { "doc_id": 150, "seg_id": 9, "translation": { "en": "The applicant only gave evidence on the admissibility of the record of interview. He did not give evidence on the general issue of the case. The applicant alleged that at the time of the arrest by police officers, his head was banged against the wall thereby causing injuries to both sides of his forehead. Subsequently, a detective hit him on his leg, in his tummy and lower parts. He could not, however, identify who hit him. He complained to the Duty Officer about the assault and was then taken to hospital for medical examination. He said that his wound was still bleeding at that time and he had to wipe it with his sleeve.", "zh-HK": "申請人只就在審理會面紀錄可否呈堂的問題上作證。至於本案的整體方面，他並沒有作証。申請人稱警員拘捕他時，把他的頭推向牆上，以致他兩額受傷。其後，一名探員又打他的肚，大腿和下體。但是他認不出誰人打他。他向值日官投訴被毆打後，就被送到醫院驗傷。他說，他的傷口那時還在流血，他要用衣袖抹血。" } }, { "doc_id": 150, "seg_id": 10, "translation": { "en": "The applicant also said that DPC 8684 had told him that he would be allowed bail if he was co-operative. As he wanted to be granted bail, he signed the record of interview even though what was written there was simply what DPC 8684 had told him to write.", "zh-HK": "申請人又稱探員8684曾對他說，如果他合作的話，他可以保釋出外。他希望獲得保釋，所以，雖然會面紀錄所寫的一切，都是探員8684教他寫的，他也在上面簽名。" } }, { "doc_id": 150, "seg_id": 11, "translation": { "en": "Further, the applicant summoned Doctor WONG ( 黃醫生 ) of Fanling Hospital to testify. Dr.WONG confirmed that the applicant arrived in the hospital for medical examination at 7:37 p.m. that day, i.e., some ten odd hours after the robbery. She examined him and found that there were some blood stains (but no bleeding) over the minor abrasions on both sides of the applicant’s forehead. She said that she had no record of whether his clothing was blood-stained.", "zh-HK": "申請人又傳召粉嶺醫院的黃醫生作証。黃醫生証實在當日下午七時三十七分，即劫案發生了十多小時後，申請人到醫院驗傷。她檢驗申請人。發現申請人兩額有輕微擦傷，沒有流血，但有血跡。至於申請人衣物有沒有血跡，她沒有紀錄。" } }, { "doc_id": 150, "seg_id": 12, "translation": { "en": "On this special issue, the Trial Judge was not satisfied with the testimony of the applicant as the Judge took the view that the applicant’s allegations of assaults resulting in the injuries and of confession to robbery under inducement were unsubstantiated. The Trial Judge found that PW4 and PW6 were truthful and reliable witnesses. The Judge held, on their testimonies, that the applicant’s confession to robbery was made voluntarily and for this reason, the applicant’s record of interview was admissible as evidence. The Trial Judge said in his reasons for verdict that he was unable to identify the cause of the applicant’s injuries but was of the view that as the applicant suffered only minor injuries, so he did not believe that the injuries were caused by assault.", "zh-HK": "原審法官在這個特別問題上，沒有信納申請人的証言，認為申請人所聲稱曾受毆打引致受傷及被誘使承認搶劫罪的說法，是沒有根據的。原審法官裁定控方第四及第六証人都是誠實可靠。他根據他們的証言，裁定是申請人自願供認搶劫。因此，會面紀錄可以呈堂作為証據。原審法官在判決書中，提及他找不到申請人受傷的原因，但他認為申請人只是輕微受傷，原審法官不相信他的傷是被人毆打引致。" } }, { "doc_id": 150, "seg_id": 13, "translation": { "en": "The 1st Defendant gave evidence in defence that on the night in question, he boarded the taxi of the victim together with the 2nd Defendant and the Applicant. The applicant was seated right behind the driver and at the material time, it was the applicant who grabbed hold of the victim’s neck from behind with his hand and claimed that it was a “ robbery ”. In other words, the 1st Defendant was saying that the applicant was the principal offender.", "zh-HK": "第一被告在自辯作証時，指當晚他和申請人及第二被告一起登上受害者的的士。申請人坐在司機後面的座位。事發時，申請人從後面用手箍受害者的頸聲稱「打劫」。換句話說，第一被告指申請人是主犯。" } }, { "doc_id": 150, "seg_id": 14, "translation": { "en": "On the applicant’s confession and the 1st Defendant’s evidence against him, the Trial Judge found the applicant guilty.", "zh-HK": "原審法官根據申請人的供認和第一被告的指証，裁定申請人罪名成立。" } }, { "doc_id": 150, "seg_id": 15, "translation": { "en": "The applicant put forward a number of grounds of appeal. They boil down to two points. The first point concerns the abrasions sustained by the applicant. It is the submission of Mr.CHAN, Counsel representing the applicant that by reasons of the prosecution’s failure in giving a satisfactory explanation about the applicant’s injury and the fact that the Trial Judge was unable to ascertain the cause of his injury, the possibility of assaults by police officers cannot, therefore, be ruled out altogether. Admitting the applicant’s record of interview as evidence was, in the circumstances , unsafe. It shifted the burden of proof onto the applicant.", "zh-HK": "申請人有多項上訴理由。歸納起來說，只有兩點。第一點是關於申請人的擦傷。代表他的陳大律師在這方面陳詞稱，由於控方未能完滿解釋申請人因何受傷，而原審法官亦未能確實申請人受傷的原因，所以不可能完全排除申請人曾被警員毆打的可能性。在此情況下准許會面紀錄呈堂是不穩當的。是把舉証責任轉嫁到申請人方面。" } }, { "doc_id": 150, "seg_id": 16, "translation": { "en": "On the issue of admissibility of the confession statement, it is the duty of the prosecution to prove that the applicant confessed voluntarily, that is to say, not under violence, threats, inducement or oppression. If the applicant alleged that he had been subjected to assault and inducement, the prosecution must prove that the applicant did not make his confession in circumstances as such.", "zh-HK": "在審理供認可否呈堂的問題上，控方有責任証明申請人是自願供認的。即他不是因受暴力對待，威嚇，誘使，或受到壓迫而供認。如果申請人指稱他曾受毆打和誘使，控方必須証明申請人不是在如此情況下供認。" } }, { "doc_id": 150, "seg_id": 17, "translation": { "en": "The Trial Judge was satisfied that the prosecution witnesses did not make the applicant confess by assault or inducement. As to the applicant’s allegations , he found it incredible despite Dr.WONG’s testimony that the applicant had suffered some minor abrasions. It is a finding of fact. In a case where the Trial Judge did not believe or suspect that the applicant was assaulted by the prosecution witnesses, he did not have to decide on the cause of the applicant’s injury, particularly when making such a decision in the absence of any evidence is a mere speculation. Therefore, even if the Trial Judge was unable to identify the cause of the applicant’s injury, it would not have affected his verdict.", "zh-HK": "原審法官信納控方証人沒有毆打和誘使申請人，令他供認。而對於申請人所說，雖然有黃醫生証明他曾受輕微擦傷，則認為仍然不可信。這是一項事實的裁決。如果原審法官不相信或沒有懷疑申請人曾被控方証人毆打，他是無需決定申請人受傷的原因。 特別是在無証據下作這方面的決定，更屬於猜測。所以，即使原審法官找不到申請人受傷的原因，也不會影響他在本案的裁決。" } }, { "doc_id": 150, "seg_id": 18, "translation": { "en": "Mr. CHAN said that the Trial Judge ought not to have admitted the confession statement merely because what the applicant had suffered was only minor injuries. He said that one of the purposes of the assaults was to frighten the applicant and so the extent of injury should not be a major consideration. The Trial Judge admitted the applicant’s confession statement as evidence because he believed that the confession was made voluntarily. He rejected the applicant’s allegations of assaults. He also rejected the suggestion that the applicant’s injuries were caused by the assaults. Therefore, the ground put forward by Counsel cannot be established.", "zh-HK": "陳大律師指原審法官不應該因申請人傷勢只是輕微，而准許供認呈堂。大律師稱毆打申請人目的之一是要他受驚，所以傷勢不是主要的考慮因素。原審法官准許供認呈堂，是因為他相信供認是自願的。他拒絕了申請人被毆打的說法，亦否定了傷勢不是毆打所引致。所以大律師的這點理由是不成立的。" } }, { "doc_id": 150, "seg_id": 19, "translation": { "en": "A more arguable ground of appeal is the newly added point 4(a): The applicant complains of the Judge’s refusal to let his Counsel cross-examine the 1st Defendant on his previous criminal records. Mr. CHAN points out that the applicant and the 1st Defendant were charged in the same proceedings and the 1st Defendant gave evidence in his own defence that it was the applicant who took action in the robbery on the night in question. It was evidence against the applicant and it was adverse to the applicant. Pursuant to Section 54 (1) (iii) of the Criminal Procedure Ordinance, the applicant was entitled to cross-examine the 1st Defendant on his previous criminal records. Mr.CHAN points out that it was a wrong decision.", "zh-HK": "比較有爭辯力的上訴理由是新加上的4(a)一點:申請人投訴原審法官沒有准許他的律師盤問第一被告關於他的刑事犯案紀錄。陳大律師指出，第一被告與申請人在本案屬同犯。而第一被告自辯作証時指當晚是申請人出手搶劫，這是針對申請人的証據。對申請人不利。根據刑事程序條例第54(1)(iii)條，申請人是有權如此盤問第一被告的前科。陳大律師指出這是錯誤的決定。" } }, { "doc_id": 150, "seg_id": 20, "translation": { "en": "Mr. CHAN cites R. v. Varley [1982] CA 512 as an example. It was held in that case that if the Defendant gave evidence against his co-accused, i.e., the defendant testified to support the prosecution case or to weaken the defence of his co-accused, the co-accused could then cross-examine the defendant on his previous criminal record and that the Trial Judge had no discretion to refuse the co-accused’s application to cross-examine the defendant in this regard. Counsel also cites R. v. NG Hang-yee [1987] HKLR 1093. That case generally accepted the rule laid down in R.v. Varley but there was no conclusion as to whether the judge had discretion. However, even if the judge had such a discretion, the Court of Appeal concluded that the Trial Judge should, in the special circumstances of that case, allow the applicant to cross-examine the 1st defendant on his criminal record.", "zh-HK": "陳大律師引用女皇對華里拉(譯音)(1)一案為例。該案裁定如果被告作証針對他的同犯，即是被告作証支持控方的案情或削弱該同犯的辯護， 該同犯可就被告的刑事犯案紀錄向他盤問。而主審法官無酌情權拒絕該同犯申請在這方面盤問被告。大律師又引用女皇對吳杏儀(譯音)(2)一案。 該案大致接納華里拉(譯音)案所訂定的原則。但對於法官是否有酌情權的一點，沒有下定論。不過，即使法官在這方面有酌情權的話，上訴法庭認為在該案的特殊情況下，主審法官也應讓申請人盤問第一被告的刑事犯案紀錄。" } }, { "doc_id": 150, "seg_id": 21, "translation": { "en": "Mr. Arthur LUK appearing for the Government / Respondent submits that the Trial Judge ought to have the discretion as he had to maintain a balance between the interests of the applicant and that of the 2nd (sic) Defendant. Counsel points out that section 54 (1) (f) (iii) is intended to protect the witness but this applicant in this case had, without first having permission, questioned the 1st Defendant on his previous record thereby disclosing his bad character. It might have been the applicant’s defence strategy but it was a gross procedural irregularity. For the sake of fairness, and in order to prevent abuse of the right of cross-examination and to safeguard the interest of the 1st Defendant, the Trial Judge was entitled to refuse the application. Counsel further submits that even if this Court is to hold that the Trial Judge was wrong, it can still invoke the proviso under section 83 of the Criminal Procedure Ordinance since there was ironclad evidence against the applicant and no miscarriage of justice has occurred as the result of the conviction. The application for leave to appeal should be dismissed.", "zh-HK": "代表政府答辯的陸大律師陳詞，認為原審法官應有酌情權。因為法官需要平衡申請人和第二被告的利益。大律師指出第54(1)(f)(iii)條目的是保障証人，而申請人在本案中，未經准許已盤問第一被告的前科，披露了他的不良品格。雖然這可能是申請人的辯護策略，但此舉已嚴重違反程序。因此，原審法官為公平起見，要防止濫用盤問權利，維護第一被告的利益，可以拒絕申請。大律師又稱，如果本法庭裁定原審法官有錯誤，本法庭可引用刑事程序條例第83條的但書。因為針對申請人的証據確鑿，判罪並沒有帶來審判不公平。申請上訴許可，應該駁回。" } }, { "doc_id": 150, "seg_id": 22, "translation": { "en": "The 1st Defendant gave evidence that the applicant was the principal offender and this is evidence against the applicant. The applicant could rely on R.v.NG Hang-yee to argue that he had the right to cross-examine the 1st Defendant on his previous records in the same way as in R.v.Varley. As to whether the Trial Judge had the discretion to refuse his application, the precedents before us have not provided any clear guidance. No matter he had or he had not, the outcome of the cross-examination would not have affected the verdict of the Trial Judge.", "zh-HK": "本案第一被告曾作証指申請人是本案主犯。這是針對申請人的証據。申請人可以根據吳杏儀一案，爭論他有權盤問第一被告的前科。正如華里拉案一般。至於原審法官是否有酌情權不批准他這樣做，本法庭當前的案例沒有明確的表示。不過，不論有沒有，盤問結果，對原審法官的裁決沒有影響。" } }, { "doc_id": 150, "seg_id": 23, "translation": { "en": "The defence relied on by the applicant in cross-examining the prosecution witnesses was: he did not take part in the robbery although he was on board the taxi at the material time and he was forced to make a confession statement that he did. On the other hand, the 1st Defendant alleged that the applicant took part in the robbery. Therefore, the truthfulness of the 1st Defendant was of critical importance in deciding whether the applicant had committed the offence. The previous records of the 1st Defendant would have a great bearing on whether the Judge would accept his version. The purpose of cross-examining the 1st Defendant on his previous records was to undermine his credibility. At the trial, Counsel representing the applicant had already asked the 1st Defendant about his criminal records of assault and of assaulting a police officer and he had admitted the commission of the two offences and the convictions. There were criminal records as such. The Trial Judge had already realized that the 1st Defendant was not a man without blemish and without a criminal record. The purpose to undermine was already served. Further criminal record of the 1st Defendant, if any, would, perhaps, have further undermined the credibility of his testimony, but it depended on the nature of the record. The appeal file only mentions two criminal records of the 1st Defendant. Neither Mr. CHAN nor Mr. LUK has any objection to our inspecting the criminal records of the 1st Defendant. The record shows, apart from the two offences already disclosed, one count of possession of infringing copies of compact discs of musical works for commercial purposes. It was a minor offence involving only a matter of commercial goodwill. Any impact this record might have would have been overshadowed by the gravity of the 1st Defendant’s other two offences of assault and assaulting a police officer. Even if the Trial Judge had not refused the application and had permitted the applicant to continue with his cross-examination about the previous criminal record of the 1st Defendant, what would have been discovered was merely a further criminal record of minor and dissimilar nature. Since the Trial Judge already had knowledge of the 1st Defendant’s two previous criminal records, a further record of a minor offence would not be of much help to the applicant and would not have affected the verdict in any way. After assessing the credibility of the 1st Defendant, the Judge as a professional tribunal was able to decide on the truthfulness of the 1st Defendant.", "zh-HK": "申請人盤問控方証人時所憑藉的辯護點是，雖然他當時是在車內，他沒有參與搶劫。他是被迫供認有參與的。而第一被告則指申請人出手搶劫。因此，要決定申請人有沒有干犯本案，第一被告的誠信是十分重要。第一被告的前科對法官是否信納他的說法，會有極度的影響。盤問第一被告的前科，目的是削弱他的可信性。在原審中，申請人律師已問及第一被告的毆打和襲警犯案紀錄。而他亦承認確曾犯此兩項罪及被定罪。有如此紀錄。因此，原審法官已曉得第一被告不是品格無瑕疵，無犯罪紀錄的人。削弱的目的已達到。不過，如果第一被告還有其他的犯案紀錄，這可能更削弱他的証言的可信性。但那要看紀錄的性質而定。上訴檔案只提及第一被告有兩項犯案紀錄。陳大律師和陸大律師都沒有反對本法庭查閱第一被告的犯案紀錄。紀錄顯示。除已披露的兩項外，還有一項管有翻版鐳射唱碟作商業用途罪。不過，這只是一項涉及商業的忠誠，性質輕微的罪行。 此項紀錄可能引起的影響，已被第一被告的毆打和襲警犯案紀錄的嚴重性掩蓋。即使法官在審訊時沒有拒絕申請，容許申請人繼續盤問第一被告的前科，所能發現的，只不過是多了這一項不同性質的輕微犯案紀錄。既然原審法官已知道第一被告已有兩項犯案紀錄，多了一項輕微罪案紀錄，對申請人沒有多大幫助。不會對裁決帶來甚麼影響。衡量第一被告的可信性後，原審法官作為專業裁判，對於第一被告的誠信，已可以作出判決。" } }, { "doc_id": 150, "seg_id": 24, "translation": { "en": "In his verdict, when analysing the testimony of the 1st Defendant, the Trial Judge says, “ I do not accept the 1st Defendant’s evidence where it conflicts with the prosecution witnesses.” Obviously, the Judge was satisfied with the 1st Defendant’s evidence that the applicant had taken part in the robbery. When coming to the evidence against the applicant, the Judge also made reference to the testimony of the 1st Defendant. It is clear that he was satisfied with what the 1st Defendant had told him.", "zh-HK": "原審法官在他的判決書上，分析第一被告的証言時說：「第一被告的証言中，如有與控方証人不符合的地方，我不信納。」明顯地，法官已信納第一被告所指，申請人有參與搶劫的証據。在提及有關申請人的不利証據中，法官亦有引述第一被告的証言。可見他已信納第一被告所說。" } }, { "doc_id": 150, "seg_id": 25, "translation": { "en": "On the whole, there was strong evidence to prove that the applicant did commit the offence of robbery. The verdict is a finding of fact made by the Trial Judge who had had due regard to all the evidence , including of course the previous criminal records of the 1st Defendant. Further cross-examination would not have taken the matter any further. This Court does not propose to interfere with the verdict. The application for leave to appeal against conviction is dismissed", "zh-HK": "整體而言，本案有強烈証據証明申請人已干犯搶劫罪。原審的裁決是法官經詳細考慮一切証據，這當然包括第一被告的前科，然後作出的事實裁決。鑒於進一步的盤問，不可能有進展。本法庭不干預裁決。申請准許上訴推翻原判拒絕。" } }, { "doc_id": 150, "seg_id": 26, "translation": { "en": "Mr. CHAN Siu-ming (assigned by the Director of Legal Aid) for the Applicant", "zh-HK": "上訴申請人：法律援助署由陳銚明代表" } }, { "doc_id": 150, "seg_id": 27, "translation": { "en": "Mr. Arthur LUK, Senior Assistant Director of Public Prosecutions andMr. David LEUNG, Senior Government Counsel of the Department of Justice for HKSAR/Respondent", "zh-HK": "上訴答辯人：律政司由陸貽信，高級助理刑事檢控專員及梁卓然，高級政府律師代表" } }, { "doc_id": 151, "seg_id": 1, "translation": { "en": "Hon Leong JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官梁紹中宣讀上訴法庭判案書:" } }, { "doc_id": 151, "seg_id": 2, "translation": { "en": "The applicant for leave to appeal admitted that at about 11:15 on 27 May 1999 he steered a sampan into Hong Kong waters. Apart from the applicant, there were 11 people, both male and female, on board the sampan. These people were unauthorized entrants. The applicant admitted that he conveyed these people to Hong Kong from Shanwei area. Subsequently, he pleaded guilty in the District Court to a charge of being a member of the crew of a ship which carried unauthorized entrants into Hong Kong, and was sentenced by Deputy Judge Li to imprisonment for 4 years and 8 months.", "zh-HK": "上訴申請人承認他於1999年5月27日11時15分左右，駕駛一艘舢舨，進入香港海域，除申請人自己外舢舨上載有11名男女。但該批男女並未獲授權進入香港境內。他承認該批男女是他從汕尾一帶運送到香港的。其後，他在區域法院承認一項身為載有未獲授權進境者進入香港的船隻的船員，被區域法院李瀚良暫委法官判入獄4年8個月。" } }, { "doc_id": 151, "seg_id": 3, "translation": { "en": "According to the facts admitted by the applicant and the report of the ship surveyor, at the material time there was no fire prevention, life saving or navigation equipment on the sampan. The hull was not in good condition and the boat was not suitable for carrying passengers on a long voyage. The Judge took the view that the applicant was in flagrant disregard of human safety. The relevant authorities show that the usual starting point for this type of offence is 5 years. In the present case, the Judge adopted 7 years as the starting point and, giving one-third discount for the applicant’s guilty plea, imposed a sentence of 4 years and 8 months.", "zh-HK": "根據他承認的案情及驗船官的報告，當時該舢舨沒有防 火、救生及導航設備，船身狀況亦非良好，不適合運載乘客遠道航行。李法官認為申請人罔顧人命安全。按照此類案件的案例，判刑一般是以5年作為起點。於本案，李法官採納7年為起點，扣除三分之一因申請人承認控罪獲得的減刑後，判刑4年8個月。" } }, { "doc_id": 151, "seg_id": 4, "translation": { "en": "The applicant has set out in detail the grounds of appeal in the Notice of Appeal and has today provided us with his final written submission. In his submission he puts forward 6 grounds, but these are merely mitigating factors. In essence, the applicant complains that the sentence is excessive.", "zh-HK": "上訴理由申請人已在上訴通知書詳述，而且今日申請人再提交最後書面陳詞。他在陳詞舉出六點理由，但這都是一些求情理由。其中最主要的是他認為刑罰太重。" } }, { "doc_id": 151, "seg_id": 5, "translation": { "en": "On the authority of The Queen v Wong Yin-lung [1995] 1 HKCLR 151, in cases of this nature, where the defendant was a captain or a person in charge of a vessel, 5 years is the correct starting point. If he was not a person in charge or was simply a crew member who carried out orders, 4 years is the appropriate starting point. Having said that, the judge is entitled to increase the sentence.", "zh-HK": "根據女皇訴黃燕濃（譯音）一案（1），如果此類案的被告人是船長或船上的負責人員，5年是正確的刑期起點。如果他是其他非負責人員或只是奉命令行事的船員，則4年是適當的刑期起點。但法官有權加重刑罰。" } }, { "doc_id": 151, "seg_id": 6, "translation": { "en": "The sentence can be increased in the following two situations:", "zh-HK": "法官可以在以下兩種情況加重刑罰：" } }, { "doc_id": 151, "seg_id": 7, "translation": { "en": "where the passengers conveyed were made to hide in a concealed compartment, thereby making it difficult for them to escape in cases of danger; and", "zh-HK": "由於運載乘客匿藏於暗格，以致有逃生困難的危險性；及" } }, { "doc_id": 151, "seg_id": 8, "translation": { "en": "where, due to age or for want of maintenance, the vessel was not seaworthy, but the offender took the risk to set sail, thereby gravely endangering the safety and lives of the illegal entrants.", "zh-HK": "由於船隻的年齡或保養問題，船隻不適宜航行，而犯案者冒險航行，可能嚴重危害非法入境者的生命安全的危險性。" } }, { "doc_id": 151, "seg_id": 9, "translation": { "en": "These can be regarded as extremely serious offences. Where both of the above circumstances existed, the court in Wong Yin-lung considered a starting point of 9 years appropriate.", "zh-HK": "此類活動，是可以作為極為嚴重的罪行。如果上述兩種情況都存在，該案例認為以9年作為起點，亦是適合的。" } }, { "doc_id": 151, "seg_id": 10, "translation": { "en": "In the present case, the Judge had already carefully considered the mitigating factors put forward by the applicant and the grounds set out in his written submission and had, correctly in our view, refused to accept those factors as valid mitigating factors. Having regard to the seriousness of the circumstances of the case, the fact that the applicant had to raise money to repay his debt and the one who operated illegal immigration activity dunned him for compensation can neither constitute a mitigating factor nor reduce the seriousness of the offence. We can therefore see nothing improper in the sentence imposed by the Judge, and the application for leave to appeal against sentence is dismissed accordingly.", "zh-HK": "李法官對申請人所提出的各種減刑因素及他在書面陳詞所列出的各點，已作出詳細考慮，李法官認為這些都不能作為本案的減刑因素。本庭同意李法官的結論。以本案的嚴重性，申請人因為要籌錢還債及被蛇頭追收賠償，並不能作為減刑因素之一，也不能減輕該罪行的嚴重性。因此，本庭認為法官判刑並無不恰當之處。所以拒絕上訴許可要求減刑，撤銷申請。" } }, { "doc_id": 151, "seg_id": 11, "translation": { "en": "Mr. R Lee, Senior Assistant Director of Public Prosecutions and Mr. P Ho, Senior Government Counsel, for the respondent.", "zh-HK": "答辯人：由李紹强高級助理刑事檢控專員及何詠光高級政府律師代表" } }, { "doc_id": 151, "seg_id": 12, "translation": { "en": "The applicant for leave to appeal in person.", "zh-HK": "上訴許可申請人：黃城輝，無律師代表" } }, { "doc_id": 152, "seg_id": 1, "translation": { "en": "Hon Yeung JA (giving the Judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案書：" } }, { "doc_id": 152, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 152, "seg_id": 3, "translation": { "en": "The applicants, Zheng Shu Wu (“Zheng”), Shum Yung Sang (“Shum”) and Xu Wei (“Xu”) were jointly charged with one count of conspiracy to use false instruments with the intention to induce somebody to do some act to his own prejudice. Xu was further charged with one count of possession of false instruments.", "zh-HK": "申請人，鄭書武（“鄭”）、沈榕生（“沈”）及徐偉（“徐”）同被控一項串謀使用虛假文書, 意圖誘使他人作出對其不利的作為罪。“徐”被加控一項管有虛假文書罪。" } }, { "doc_id": 152, "seg_id": 4, "translation": { "en": "The applicants pleaded not guilty and were convicted after trial before District Judge Douglas Yau on 19 November 2009. They were each sentenced to three years’ imprisonment. At one stage they sought leave to appeal against both conviction and sentence, but all of them subsequently abandoned their application against sentence. We only need to concern ourselves with their application against conviction.", "zh-HK": "申請人否認控罪，並在區域法院法官游德康席前受審。2009年11月19日游法官裁定申請人罪名成立，並判每人入獄3年。申請人曾就定罪及判刑申請上訴許可，但他們都先後放棄了就判刑上訴的申請。本庭只需處理他們就定罪上訴的申請。" } }, { "doc_id": 152, "seg_id": 5, "translation": { "en": "The prosecution case and evidence", "zh-HK": "控方案情及證據" } }, { "doc_id": 152, "seg_id": 6, "translation": { "en": "The prosecution alleged that the applicants conspired to use a batch of forged Hongkong and Shanghai Banking Corporation (“HSBC”) certificates of deposits worth hundreds of billions of dollars to demonstrate that they had sufficient financial resources to successfully participate in an intended project to build a geothermal power plant in China by an American company, Elemental NRG (“Elemental”). Since the partners in Elemental requested the applicants to produce proof of funds issued by the bank, they in turn asked HSBC to verify the batch of false certificates of deposits and issue proof of capital.", "zh-HK": "控方指申請人串謀利用一批數以千億元的偽製豐銀行存款證，以顯示他們有足夠財力，令他們能成功參與一美國公司Elemental NRG(“Elemental”) 打算在中國興建的地熱發電廠。由於Elemental的合夥人要求申請人出示銀行發出的款項證明文件，他們繼而要求豐銀行驗證該批虛假存款證及發出資金證明書。" } }, { "doc_id": 152, "seg_id": 7, "translation": { "en": "The prosecution called numerous witnesses, whose evidence was largely not in dispute.", "zh-HK": "控方有傳召多名證人作供，他們的證供大部份是沒有爭議的。" } }, { "doc_id": 152, "seg_id": 8, "translation": { "en": "There were three partners in Elemental, namely Robert Joseph Tomacari (“Tomacari”), Michael Edward Mckie (“Mckie”) and William Mayer (“Mayer”) (deceased). Tomacari and Mckie were called as prosecution witnesses at the trial.", "zh-HK": "Elemental有三名合夥人，Robert Joseph Tomacari (“Tomacari”)、Michael Edward Mckie (“Mckie”)及William Mayer(“Mayer”)(“已故)。Tomacari 和Mckie原審時是控方證人。" } }, { "doc_id": 152, "seg_id": 9, "translation": { "en": "In his evidence, Tomacari described how Elemental intended to build a power plant and went searching for investors. He indicated that he learnt through a friend, Cheung Sin Kong (transliteration), that some mainlanders who had huge deposits in HSBC were interested in making the investment. According to Cheung, such information came from his friend, Chan Chi Yong (transliteration).", "zh-HK": "Tomacari作供時談及Elemental打算興建發電廠及尋找投資者之事宜。Tomacari表示透過朋友張善剛，知悉在豐銀行存有巨款的內地人士有興趣投資。據張善剛的說法，消息源自其友人陳志勇。" } }, { "doc_id": 152, "seg_id": 10, "translation": { "en": "On 18 January 2009, Tomacari, Mckie and Mayer arrived in Hong Kong to meet the applicants. Cheung was present to act as their interpreter. When the applicants learned about the investment project, they showed Tomacari, Mckie and Mayer some photos depicting what appeared to be certificates of deposits of huge amounts and indicated that the money was in HSBC. Mayer asked the applicants to provide information about the history of the funds as well as a copy of the investors’ passports, so as to avoid any possible connection with the crime of money laundering.", "zh-HK": "2009年1月18日，Tomacari，Mckie 和Mayer抵港和申請人會面。張善剛在場擔當翻譯。申請人知悉有關投資項目後，向Tomacari，Mckie 和Mayer出示一些看似是巨額存款證的照片，並表示款項存在豐銀行。Mayer 要求申請人提出有關資金歷史的資料和投資者的護照副本，以避免涉及洗黑錢罪行。" } }, { "doc_id": 152, "seg_id": 11, "translation": { "en": "Ms Yam Chi Wah (transliteration), a friend of Zheng’s, said in her evidence that Zheng had asked her to arrange a meeting with the staff of HSBC so that the bank could issue proof of funds. Zheng told Ms Yam that the project would involve an enormous amount of money which had been kept in the bank for a long time and that the holder of the funds would soon come to Hong Kong from Shenzhen. Zheng even told her that she hoped the bank could send people to the hotel to meet them since they were high officials.", "zh-HK": "“鄭”的朋友任芝華女士作供時表示“鄭”曾要求她安排和豐銀行職員會面，以便銀行能發出款項證明文件。“鄭”向任女士表示計劃涉及巨額款項，款項亦已存在銀行一段長時間而持款人會快從深圳抵港。“鄭”更向她表示希望銀行能派人到酒店和他們見面，原因是他們是高官。" } }, { "doc_id": 152, "seg_id": 12, "translation": { "en": "Having made some enquiries, Ms Yam told Zheng that she found the matter suspicious. Zheng, however, replied that the three Americans had said there were no problems with the funds, and she even claimed that the matter concerned the Chinese party representing China and the US Federal Reserve. Zheng also introduced Shum and Xu to Ms Yam as her superior and the funds holder respectively. Zheng further indicated that they did not really want to withdraw the money but were just hoping that HSBC could issue proof of the funds.", "zh-HK": "任女士作出查詢後曾向“鄭”表示事件有可疑，但“鄭”說三個美國人已說過資金無問題，更表示事件涉及代表中國的中方及美國聯邦儲備局。“鄭”亦有向任女士介紹“沈”及“徐”，指他們分別是領導及持款人。“鄭”更表示他們並非真的要提取金錢，只是希望豐銀行能發出資金證明文件。" } }, { "doc_id": 152, "seg_id": 13, "translation": { "en": "Ms Yam eventually arranged for the applicants and Mckie, who was allegedly from the Federal Reserve, to meet Ho Kai Tat (transliteration), Deputy Manager of the Bank’s Investigation Unit, Lee Siu Keung (transliteration), Manager of the Insurance Unit and a staff member surnamed Kuk at the Langham Place branch of HSBC on 20 January 2009.", "zh-HK": "任女士最終安排申請人及據稱是聯儲局的Mckie在2009年1月20日在豐銀行朗豪坊辦事處和銀行調查科副經理何啟達、保險部經理李兆強及一谷姓職員會面。" } }, { "doc_id": 152, "seg_id": 14, "translation": { "en": "In his evidence, Ho Kai Tat said that during the meeting, Xu produced a wad of certificates of deposits totaling 100 pieces. When he indicated that he wanted to make photocopies of the certificates, Shum insisted on being present. Zheng and Xu said that they hoped the bank could verify the genuineness of such certificates, which were related to some of Mckie’s investment projects. Mckie also indicated that there were some joint ventures and he had to see if the certificates of deposits were genuine. Xu claimed that he had about 200 certificates of deposits, which were obtained by his father from a Kuomintang high official and were given to him for handling in 2005.", "zh-HK": "據何啟達的證供，會面時，“徐”出示“一沓”有百張的“存款證”，而當他表示要影印存款證時，“沈”堅持要在場。“鄭”和“徐”則表示希望銀行能驗證存款證的真假，而存款證是和一些Mckie的投資項目有關，Mckie亦表示有一些合作項目，而他要看看存款證是否真確。“徐”則表示他有約200張存款證，是其父親由一國民黨高官處取得，並在2005年交給他處理。" } }, { "doc_id": 152, "seg_id": 15, "translation": { "en": "Ho Kai Tat inquired with the applicants and Mckie respectively as to whether they required oral or written confirmation. Both parties indicated that they wanted the latter.", "zh-HK": "何啟達曾分別向申請人和Mckie查詢，他們需要是口頭確認還是書面確認。他們都異口同聲表示要書面確認。" } }, { "doc_id": 152, "seg_id": 16, "translation": { "en": "Lee Siu Keung also stressed that during the meeting, all the applicants asked HSBC to issue a confirmation letter verifying the false instruments specified in charge 1.", "zh-HK": "李兆強亦強調在會議期間, 申請人都要求豐銀行發出第一項控罪列出的虛假文書的驗證確認書。" } }, { "doc_id": 152, "seg_id": 17, "translation": { "en": "Cheung Sin Kong testified that he came to know there were mainlanders who wished to invest in Elemental’s project after contacting Chan Chi Yung. Hence he arranged for Tomacari, Mckie and Mayer to meet the applicants. He confirmed that during the meeting, Tomocari indicated that he was not clear about the nature of the documents shown by the applicants and therefore asked them to provide verification certificates.", "zh-HK": "張善剛作供時指是和陳志勇接觸後知悉有內地人士希望投資Elemental的項目，故安排Tomacari、Mckie 及Mayer和申請人會面。張善剛確認會面期間，Tomacari表示不清楚申請人所展示的文件的性質，故要求他們提供驗證證明書。" } }, { "doc_id": 152, "seg_id": 18, "translation": { "en": "In fact, Lee Siu Keung had notified the police before meeting the applicants, which resulted in the arrest of the applicants at the scene for the offence of conspiracy to defraud.", "zh-HK": "事實上，和申請人會面前，李兆強已知會警方，導致申請人當場遭警員以“串謀詐騙”罪拘捕。" } }, { "doc_id": 152, "seg_id": 19, "translation": { "en": "Subsequently, the police found in the laptop computer inside Zheng’s hotel room images of the false instruments in question, including two deposit slips in the sum of US$217 billion, two monthly statements showing a balance of US$217 billion in the account, one confirmation letter issued by HSBC showing a deposit of US$217 billion in the account, one confirmation letter signed by Ms Diana Cesar of HSBC showing a deposit of US$55 billion in the account and guaranteeing that the funds were legitimate and “clean”. In fact, all those documents were false.", "zh-HK": "其後警員在“鄭”的酒店房間的手提電腦內發現涉案虛假文書的影像，包括兩張款額為2,170億美元的存款單，兩張月結單、顯示賬戶有2,170億美元的結餘、一張豐銀行發出的確認書，顯示賬戶有2,170億美元存款、一封由豐銀行Diana Cesar女士簽發的確認信，顯示賬戶有550億美元存款，同時保證該些資金是合法和“乾淨”的。事實上，該批文件都是虛假的。" } }, { "doc_id": 152, "seg_id": 20, "translation": { "en": "The police also found in Shum’s hotel room printed copies of the above images, a document bearing three deposit transfer notices, each in the sum of US$500 million and payable to “Lee Kwai Fa” (transliteration), two forged certificates of deposits in bearer form in the sum of US$500 million and other false documents.", "zh-HK": "警員亦在“沈”的酒店房間內搜獲上述影像的文書本，另有一張印有三張存款轉賬通知書，每張5億美元，抬頭人是“李桂花”、兩張憑票即付，面額為5億美元的偽造存款證及其他虛假文件。" } }, { "doc_id": 152, "seg_id": 21, "translation": { "en": "The police found on Xu 104 forged certificates of deposits in the sum of US$500 million each, an envelope with the words “The Hong Kong Bank” printed on it, numerous forged certificates of deposits in the sum of US$500 million each, a copper plate engraved with the words “Hong Kong and Shanghai Banking Corporation account number 400 1523 72124, code 414153 Li Lie Jun (transliteration) 500,000,000” and a document holder containing two documents, namely, “Authenticated Power of Attorney” and “Authenticated Authorization Letter”, two copies of “Inheritance Letter”, two copies of “Power of Attorney” and one “Authorization Order” entitled “17 Plum Blossom Alliance of the Republic of China”. Xu also had on him a seal engraved with the words “Li Hou Long (transliteration) Money Withdrawal Seal”, a silver plate engraved with the words “Bestowed Copy from the Chiu’s Mansion of the Republic of China”, a metal seal and a handwritten “Acknowledgement of Receipt of Certificates of Deposits” dated 17 January 2009.", "zh-HK": "警員在“徐”的身上搜獲104張偽造存款證，每張5億美元，一個印有“香港豐銀行”字樣的信封，另多張，每張5億美元的偽造存款證、一塊刻着“香港上海豐銀行賬號400 1523 72124號，密碼414153李烈鈞500,000,000” 字樣的銅片和一個文件套，內有兩張分別為“鑒定委托書”和“鑒定授權書”、兩張“繼承書”、兩張“委托書”和一張抬頭為“中華民國十七梅花同盟的‘授權令’”。“徐”的身上亦有一個刻有“李侯龍取款章”的印章、一塊刻有“民國趙府賜本”字樣的銀片，一個金屬印章和一份日期為2009年1月17日的手寫“存款證認收書”。" } }, { "doc_id": 152, "seg_id": 22, "translation": { "en": "During her interview with the police, Zheng claimed that her company was involved in various investment projects and she had been seeking investors in eight of such projects but in vain. She said that when she met the partners in Elemental, she did not understand what Mckie was saying and just thought that he had funds and would invest in the projects that she devised, rather than they investing in Elemental’s geothermal project. Zheng admitted that the photos in her computer were photos of the certificates of deposits provided by Xu, which were taken by Shum on the morning of 17 January 2009. Those certificates of deposits were wrapped up and kept by Xu afterwards.", "zh-HK": "和警員會面時，“鄭”表示自己的公司有參與多項投資項目，而她一直為其中8個項目找尋投資者，但不成功。她表示和Elemental的合夥人會面時，不明白Mckie說甚麼，只以為他有資金和會投資在她構思的項目，而非她們投資在Elemental的地熱能項目。“鄭”承認其電腦內的照片是“徐”提供的存款證照片，是“沈”在2009年1月17日早上拍下的，而事後“徐”將存款證包起及保管。" } }, { "doc_id": 152, "seg_id": 23, "translation": { "en": "During his interview with the police, Shum said that he knew Xu had been in possession of the certificates of deposits in question for a month. At that time a female friend surnamed Zhang (transliteration) took a scanned voucher to their Yong He Company (transliteration) in Beijing and showed it to Xu. Since she knew that Zheng was seeking capital, she brought along the scanned voucher to see if it would be useful. Xu indicated then that he was able to find similar things. Shum stressed that both Zheng and Xu were present when Ms Zhang showed them the scanned voucher. Later, Shum changed to say that Xu was not present. In clarification, Shum said that when Ms Zhang took the voucher to Yong He Company to show Zheng, she indicated at the same time that the voucher was worth a lot of money.", "zh-HK": "和警員會面時，“沈”表示知道“徐”管有涉案的存款證已有一個月，當時有一張姓女友帶了一張掃描票據到他們在北京的永和公司給“徐”看，原因是她知悉“鄭”正在尋找資金，故帶來掃描票據看看是否有用。當時“徐”表自己亦能找到相同的東西。“沈”強調張小姐展示票據掃描時，“鄭”和“徐”都在場。其後，“沈”改說“徐”不在場。“沈”再澄清時表示，張小姐帶票據到永和公司給“鄭”看時，她同時表示票據值很多錢。" } }, { "doc_id": 152, "seg_id": 24, "translation": { "en": "Shum also claimed that all the documents seized by the police in his hotel room were given to him by a mainland lawyer surnamed Yao (transliteration) and that he did not know what documents they were. He just casually put them in the bag, while the other certificates of deposits were given to him by Xu for safekeeping.", "zh-HK": "“沈”亦有表示警員在其酒店房間檢獲的文件都是國內一姚姓律師給他的，但他不知悉文件是甚麼東西。他只是不經意地將它們放入袋中，而其他的存款證則是“徐”交給他保管的。" } }, { "doc_id": 152, "seg_id": 25, "translation": { "en": "Shum’s case was that he was only assisting Zheng in seeking capital and Xu happened to own many certificates of deposits that could be used. Shum claimed that their purpose was to test the genuineness of the certificates which, if found to be genuine, would provide them with funds. Shum also said that the lawyer surnamed Yao was the one arranging for the investment behind the scene.", "zh-HK": "“沈”的立場是他只是協助“鄭”尋找資金而碰巧“徐”擁有很多存款證可以利用。“沈”表示他們目的是測試存款證的真偽，而如存款證是真確的，他們便會有資金運用。“沈”亦表示他提及的姚姓律師是在幕後安排投資的人。" } }, { "doc_id": 152, "seg_id": 26, "translation": { "en": "In his interview with the police, Xu claimed to be a son of General Li Lie Jun of the Kuomintang, who passed him to a foster father after his birth in order to cover his identity. It was only in 2005 that he realized his real name was Li Hou Long and he owned national assets in astronomical sums. He said the assets were jointly owned by the Communist Party and the Kuomintang.", "zh-HK": "“徐”在和警員會面時說自己是國民黨李烈鈞將軍的兒子，但出生時遭父親交給養父撫養，以掩人耳目。2005年，他才知悉自己原名是李侯龍，坐擁天文數字的民族資產。“徐”表示該批資產由共產黨和國民黨共同擁有。" } }, { "doc_id": 152, "seg_id": 27, "translation": { "en": "Xu said that the documents in question and the other jewellery were obtained by him from a hill and they originally belonged to his family. The bonds were obtained by his father who exchanged a hundred taels of gold and jewellery for them with HSBC between 1922 and 1927. He described his illustrious family background, but at the same time he also said that his foster parents hanged themselves because of him during the Cultural Revolution.", "zh-HK": "“徐”指涉案的文件和其他珠寶是他從山上取得的，原屬他家的錢財。債券是父親在1922至1927年用黃金百兩及珠寶跟豐銀行換來的。他有說及自己家庭成員的顯赫身世，但同時表示在文革時，養父母都因為他而要上吊自殺。" } }, { "doc_id": 152, "seg_id": 28, "translation": { "en": "According to Xu, in his home there was a set of coordinates which showed 108 armouries, while the bonds were hidden in a hilltop whose location was a secret that could not be revealed, with him being the only one who knew about it. When asked about the identities of the other people keeping the bonds, Xu said he was not willing to answer. Xu said that he chanced on Zheng and Shum and with their assistance, he brought the certificates of deposits/bonds to Hong Kong for verification.", "zh-HK": "“徐”表示家中有一座標，顯示108個軍庫，而債券儲藏在一個山頭，但地點是秘密，不能洩露，只有他一個人知道。當被問及保管債劵的其他人身份時，“徐”表示不願意回答。“徐”指碰到“鄭”和“沈”及得到他們協助下，將存款證/債券帶來香港驗證。" } }, { "doc_id": 152, "seg_id": 29, "translation": { "en": "Defence", "zh-HK": "答辯理由" } }, { "doc_id": 152, "seg_id": 30, "translation": { "en": "Much of the prosecution case was not in dispute. The applicants agreed that they had the agreement to meet the partners in Elemental and show the certificates of deposits in question in order to demonstrate that they had the financial resources to participate in the relevant investment project. The applicants also agreed to meet the staff of HSBC and show them the certificates of deposits in question for the purpose of asking HSBC to verify them and issue proof of funds. The applicants even agreed that the certificates of deposits in question were false and that they voluntarily took part in the interviews with the police to give their explanation of the matter.", "zh-HK": "申請人對控方案情爭議不大。他們同意是一起協議和Elemental的合夥人會面及出示涉案的存款證，顯示他們具財力參與有關投資項目。申請人亦同意和豐銀行職員會面，並向他們出示涉案的存款證，目的是要求豐銀行驗證及發出資金證明書。申請人更同意涉案的存款證都是虛假的，而他們都是自願參與和警員的會面及就事件作出解釋。" } }, { "doc_id": 152, "seg_id": 31, "translation": { "en": "None of the applicants gave evidence in their defence, nor did they call any witnesses. Basically, their case was that they did not know or believe that the certificates of deposits in question were forged and that the prosecution evidence was not sufficient to prove that they did conspire to use false instruments. In respect of charge 2, Xu’s case was that although the instruments in question were false, he was not aware of that and the things that he had provided to the police, namely, the “Authenticated Power of Attorney” and “Authenticated Authorization Letter”, “Inheritance Letter”, “Power of Attorney”, “Authorization Order” and the “seal”, etc were all consistent with his case that he had no knowledge.", "zh-HK": "申請人都沒有作供自辯，亦沒有傳召證人作供。他們基本立場是他們不知道，亦不相信涉案的存款證是偽造的，而控方的證據不足以證明他們確有串謀使用虛假文書。就第2項控罪，“徐”的立場亦是雖然涉案的文書屬虛假文書，但他不知情，而他向警方提供的“鑒定委任書”，“鑒定授權書”、“繼承書”、“授權書”、“授權令”、“印章”等等物件，都和他不知情的說法吻合。" } }, { "doc_id": 152, "seg_id": 32, "translation": { "en": "The trial judge’s findings", "zh-HK": "原審法官的裁決" } }, { "doc_id": 152, "seg_id": 33, "translation": { "en": "The trial judge rejected the explanation given by Zheng at her interview with the police and dismissed her description of the investment projects as a pack of lies. He did not accept her account of how she contacted Shum and Xu, nor did he accept her claim that she was not aware of the photos and documents in her computer and their contents. The trial judge totally rejected the explanation that Shum and Xu gave in their interviews with the police. He found that they were lying and engaged in fabrication.", "zh-HK": "原審法官否定“鄭”在和警員會面時所作的解釋而她所指的投資項目更是謊言。原審法官不接納“鄭”就如何接觸“沈”和“徐”的說法，亦不接納她指不知悉其電腦內的照片和文件及對其內容毫不知情的說法。原審法官全盤否定“沈”和“徐”在和警員會面時的解釋。原審法官認定他們是在說謊及憑空杜撰事情。" } }, { "doc_id": 152, "seg_id": 34, "translation": { "en": "The trial judge found that the certificates of deposits were forged and that Zheng was aware of the existence and nature of those forged certificates. He inferred that Zheng, Shum and Xu conspired to use those false certificates of deposits with the intention to induce HSBC to issue proof of funds, and that during their meeting with the staff of the bank on 20 January 2009, they intended to carry out their conspiracy to commit the offence.", "zh-HK": "原審法官裁定存款證都是偽造的, 而“鄭”亦是知道該批虛假存款證的存在及性質。原審法官推斷“鄭”、“沈”和“徐”是串謀利用該批虛假存款證意圖令豐銀行發出資金證明，而在2009年1月20日和銀行職員會面時，他們正意圖執行其犯罪協議。" } }, { "doc_id": 152, "seg_id": 35, "translation": { "en": "The trial judge stressed that at the material times, Shum was in possession of some false certificates of deposits in the sum of hundreds of billions of dollars together with some false monthly statements and time deposits vouchers. He found that Shum must have known or believed that the documents presented to the staff of HSBC for verification were false and that their purpose was to defraud HSBC into issuing to them some proof of funds. The trial judge also found that Shum, Zheng and Xu did have an agreement to conspire to defraud and an intention to carry out such an agreement.", "zh-HK": "原審法官強調案發時，“沈”管有一些虛假而數以千億元計的虛假存款證及一些虛假的月結單及定期存款單。原審法官裁定“沈”必然知道或相信交給豐銀行職員去驗證的文件都是虛假的，而他們的目的是詐騙豐銀行以獲得它發出一些存款證明。原審法官更認定“沈”、“鄭”和“徐”確有串謀詐騙的協議，亦有意圖實行該協議。" } }, { "doc_id": 152, "seg_id": 36, "translation": { "en": "The trial judge was of the view that the applicants must have known of the falsity of the certificates of deposits in question, and their plan to defraud HSBC so as to obtain proof of funds was entirely feasible. The reason was that if HSBC said that the documents were false, all they had to do was just to insist their innocence; but if HSBC had said the documents were genuine, their plot would have succeeded. The trial judge regarded them as a group of organized, bold and scheming fraudsters, whose plot allowed for an excuse to get away in case of failure, namely if their fraud was exposed they would claim themselves to be victims as well.", "zh-HK": "原審法官認為申請人必然知道有關的存款證是虛假的，而他們詐騙豐銀行以取得資金證明的計劃亦絕對可行。原因是若豐銀行說文件是假的，他們只需堅稱不懂，而若豐銀行說文件是真的，他們狡計便得逞。原審法官認為申請人是一班有組織、膽識、預謀的騙徒，其計劃更包括了失敗時脫身的藉口，如即被識破時便會假稱他們也是受害人。" } }, { "doc_id": 152, "seg_id": 37, "translation": { "en": "The trial judge found that in respect of the first count of conspiracy to use false instruments with the intention to induce somebody to accept it as genuine and hence to do or not to do some act, the “somebody” referred to therein were the staff of HSBC who met them on the material day, i.e. Ho Kai Tat and Lee Siu Keung. The reason was that the applicants showed Ho and Lee those false instruments and asked them to verify their genuineness.", "zh-HK": "原審法官裁定第一項串謀使用虛假文書，意圖使另一人接受該批文書為真文書而作出或不作出某些行為，所指的“另一人”就是在案發當天和他們見面的豐銀行職員何啟達和李兆強。原因是申請人是向何啟達和李兆強展示該批假文件及要求他們驗證文件的真偽。" } }, { "doc_id": 152, "seg_id": 38, "translation": { "en": "On that basis, the trial judge convicted the applicants on the first count.", "zh-HK": "原審法官以上述基礎裁定申請人第一項控罪罪名成立。" } }, { "doc_id": 152, "seg_id": 39, "translation": { "en": "In respect of the second count, the trial judge also rejected the explanation given by Xu at his interview with the police and dismissed his claim that he had obtained the false certificates of deposits in a cave as a pack of lies. The judge stressed that Xu’s explanation indicated that what he described was his personal experience rather than second hand knowledge, but his explanation was not true at all. The judge found that the only inference to be drawn was that Xu used an excuse to commit the fraud and he must have known that the certificates of deposits in his possession were false instruments. Since he had no lawful authority or excuse to possess those false instruments, the judge accordingly convicted him on the second count as well.", "zh-HK": "就第2項控罪, 原審法官亦否定“徐”在和警員會面時所作的解釋，更認為他說在山洞內取得涉案的假存款證均屬謊言。原審法官強調“徐”所作的解釋顯示他說及的是親身經歷而非他人告知他的事，而他的解釋根本不是事實。原審法官認為唯一的推論是“徐”借名訛詐，他必然知悉其管有的存款證均為虛假文書。由於他並沒有合法權限或辯解去管有該批虛假文書，原審法官亦裁定“徐”第二項控罪罪名亦成立。" } }, { "doc_id": 152, "seg_id": 40, "translation": { "en": "Grounds of Appeal", "zh-HK": "上訴理由" } }, { "doc_id": 152, "seg_id": 41, "translation": { "en": "Basically, Mr Lawrence Lok SC on behalf of Zheng and Shum raised only one ground of appeal.", "zh-HK": "代表“鄭”和“沈”的駱應淦資深大律師基本上只提出一點上訴理由。" } }, { "doc_id": 152, "seg_id": 42, "translation": { "en": "Mr Lok SC submitted that the prosecution clearly stated in their opening that the targets of the applicants’ fraud were Tomacari, Mckie and Mayer rather than the staff of HSBC, hence the applicants’ closing submission focused on the words and demeanor of the said three persons. The trial judge, however, in the absence of any indication, changed the targets of the applicants’ fraud to the staff of HSBC and convicted Zheng and Shum on that basis. Mr Lok SC submitted that in doing so the trial judge had caused grave injustice, which rendered his conviction of Zheng and Shum on the first count unsafe.", "zh-HK": "駱資深大律師指出控方代表在審訊開案陳述時明言申請人的行騙對象是Tomacari，Mckie 及Mayer, 而非豐銀行的職員，因此申請人的結案陳述焦點都集中處理該三名人士的言行舉止，但在毫無先兆下，原審法官將申請人的詐騙對象轉變為豐銀行的職員，並以該基礎將“鄭”和“沈”定罪。駱資深大律師認為原審法官的做法導致嚴重不公平的情況，而裁定“鄭”和“沈”第一項控罪罪名成立亦因此是不穩妥的。" } }, { "doc_id": 152, "seg_id": 43, "translation": { "en": "Apart from taking the same stance as Mr Lok SC on the above issue, Mr Kan Ding To on behalf of Xu also submitted that the trial judge had failed to appropriately analyze Xu’s record of interview with the police and wrongly found that his account was fabricated.", "zh-HK": "除了就上述議題和駱資深大律師站在同一陣線上之外，代表“徐”的簡定濤大律師亦指原審法官沒有適當分析“徐”和警員的會面記錄，卻不當地裁定他的說法是憑空杜撰的。" } }, { "doc_id": 152, "seg_id": 44, "translation": { "en": "Mr Kan submitted that although Xu’s description of how he came to obtain the certificates of deposits was rather dramatic, the trial judge had no basis to reject his account in the absence of any evidence to the contrary adduced by the prosecution. Mr Kan stressed that part of the exhibits that Xu had provided to the police, including the “Power of Attorney”, “Letter of Authorization”, “Inheritance Letter”, “Authorization Order” and the “Seal”, etc could all lend support to his explanation. When the trial judge considered whether Xu’s explanation was credible, however, he made no mention of such documents, which showed that he had not fully taken that evidence into account.", "zh-HK": "簡大律師認為雖然“徐”述及如何取得存款證的過程頗戲劇化，但在控方沒有提出對立的證據時，原審法官沒有基礎否定他的說法。簡大律師強調“徐”向警方提供的部份證物，包括“委任書”，“授權書”、“繼承書”、“授權令”、“印章”等等文件都能支持他的解釋，但原審法官考慮“徐”的解釋是否合信時，卻沒有提及該些文件，顯示原審法官沒有全面考慮有關證據。" } }, { "doc_id": 152, "seg_id": 45, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 152, "seg_id": 46, "translation": { "en": "According to the evidence that was not and/or could not be disputed, at the material times the applicants were in possession of certificates of deposits worth hundreds of billions of dollars. They expressed an interest in investing in Elemental’s power plant project, and through the arrangement of a third party, they met the three partners in Elemental in Hong Kong on 18 January 2009. During the meeting, the applicants showed the partners in Elemental photographs relating to the funds for the purpose of convincing them that they owned the relevant funds. The applicants directly or indirectly revealed that the funds were deposited in HSBC, but they offered no proof as to the form in which the funds existed, nor did they explain how they intended to use the funds.", "zh-HK": "沒有爭議及/或無可爭議的證據顯示在有關時段，申請人管有價值數以千億元計的存款證，他們表示有興趣投資Elementa發電廠計劃，並透過第三者的安排和Elemental的三名合夥人在2009年1月18日在香港會面。在會面期間，申請人向Elemental的合夥人展示和資金有關的照片，目的希望說服Elemental的合夥人他們擁有有關資金。申請人直接或間接透露資金存放在豐銀行，但沒有證明資金是以什麼形式存在，亦沒有解釋他們打算如何運用資金。" } }, { "doc_id": 152, "seg_id": 47, "translation": { "en": "When the partners in Elemental requested the applicants to provide information about the history of the funds, Zheng, through Ms Yam Chi Wah, attempted to obtain “Proof of Sums” issued by HSBC.", "zh-HK": "當Elemental的合夥人要求申請人提出有關資金歷史的資料，“鄭”透過任芝華女士希望取得豐銀行發出的“款項證明文件”。" } }, { "doc_id": 152, "seg_id": 48, "translation": { "en": "Zheng even told Ms Yam that the matter concerned the Chinese side and the US Federal Reserve. Shum was her superior while Xu was the funds holder. Zheng said that the funds had been in the bank for a long time and they hoped that HSBC could issue proof of funds.", "zh-HK": "“鄭”更向任女士表示事件涉及中方及美國聯邦儲備局。“沈”是領導而“徐”是持款人。“鄭”表示款項已存在銀行一段長時間而他們希望豐銀行能發出資金證明。" } }, { "doc_id": 152, "seg_id": 49, "translation": { "en": "The applicants acted in concert, hoping first that they could convince the partners in Elemental that they owned sufficient funds to invest in the relevant project. When Mayer asked them to provide proof of the funds, they attempted to obtain proof of funds issued by HSBC.", "zh-HK": "申請人是夥同行事，他們先希望說服Elemental的合夥人他們擁有足夠資金投資有關項目。當Mayer要求申請人提供資金證明時，他們設法取得豐銀行發出的資金證明。" } }, { "doc_id": 152, "seg_id": 50, "translation": { "en": "The documents or images that the applicants possessed and showed to the partners in Elemental and/or HSBC were false instruments.", "zh-HK": "申請人管有及向Elemental合夥人及/或豐銀行展示的文件或影象都是虛假文書。" } }, { "doc_id": 152, "seg_id": 51, "translation": { "en": "If the applicants acted jointly in showing the partners in Elemental and/or HSBC the false instruments in question or their images or copies while knowing or believing the same to be false, for the purpose of convincing the partners in Elemental to allow them to invest in the relevant project and/or asking HSBC to verify them and issue proof of funds, the applicants must have committed the offence of conspiracy to use false instruments.", "zh-HK": "假若申請人共同行事，向Elemental合夥人及/或豐銀行出示有關的虛假文書或其影象副本時，知道或相信該些虛假文書實屬虛假時，目的是說服Elemental的合夥人容許他們投資有關項目，及/或要求豐銀行驗證及發出資金證明，申請人都必然干犯了串謀使用虛假文書罪。" } }, { "doc_id": 152, "seg_id": 52, "translation": { "en": "The first charge against the applicants alleged that they, on or about 20 January 2009, in Hong Kong, used the false instruments in question with the intention to induce somebody to accept them as genuine, and by reason of so accepting them to do or not to do some act to his own or any other person’s prejudice.", "zh-HK": "針對申請人的第一項控罪的詳情是指他們約於2009年1月20日在香港串謀使用涉案的虛假文書，意圖誘使另一人接受該等文書為真文書，並因接受該等文書為真文書而作出或不作某些作為，以致對該另一人或其他人不利。" } }, { "doc_id": 152, "seg_id": 53, "translation": { "en": "The particulars of the above offence could cover the applicants’ act of meeting the partners in Elemental on 18 January 2009 and also their act of meeting the staff of HSBC on 20 January 2009.", "zh-HK": "上述控罪詳情可以包括2009年1月18日申請人和Elemental合夥人會面的作為，亦可以包括他們在2009年1月20日和豐銀行職員會面時的作為。" } }, { "doc_id": 152, "seg_id": 54, "translation": { "en": "In fact, the brief facts of the prosecution case set out the details of the applicants’ dealing with the partners in Elemental as well as their dealing with the staff of HSBC.", "zh-HK": "事實上控方的案情撮要有列出申請人和Elemental合夥人的交易詳情，亦有列出他們和豐銀行職員的交易詳情。" } }, { "doc_id": 152, "seg_id": 55, "translation": { "en": "However, when the parties were dealing with issues relating to the Practice Directions 9.1, namely the proper approach to be adopted when the indictment includes both a conspiracy charge and a substantive charge, the then prosecuting counsel made the following submission:", "zh-HK": "但雙方在處理《實務指示》9.1段的議題，即公訴書內包括串謀罪行和實質罪行時的適當處理方法，當時的控方大律師有以下的陳述：" } }, { "doc_id": 152, "seg_id": 56, "translation": { "en": "“In respect of the first charge, your Honour, the prosecution case is that the three defendants conspired to use these documents, the five documents set out in the charge, which are in fact 104 pages, in total, that is, to defraud, namely conspiracy to (original in English) – conspiracy to use these documents, well, to – I used the word “conspiracy” which may not be very appropriate, but basically they were hoping to induce two foreigners, … to believe that they were genuine, and then to allow the defendants to participate in some investment projects, well, that is… put simply, a summary of the facts relating to the first charge, well, what I’m talking about is the way in which they used these document to do such a thing… in respect of the second charge, …the facts are of a much narrower scope…”", "zh-HK": "“就第一項控罪而言，法官閣下，控方嘅說法係話呢三名被告人係串謀利用呢啲文件，控罪面提到嘅五項文件嘅，其實一百零四張喇，加起嚟即係。就去訛騙，即係conspiracy to – 串謀去使用呢啲文件，咁就係去 – 我用咗訛騙呢個係一個未必好適當嘅字眼，但係基本上佢哋係希望引誘兩名外籍人士，…係信以為真，然後係讓和被告人係參與一啲投資項目，咁呢個就係…簡單講，就係第一項控罪嗰個案情嘅一個大綱，咁講緊嘅係佢哋點樣利用呢啲文件去做呢件事…就第二項控罪呢…案情窄好多…”" } }, { "doc_id": 152, "seg_id": 57, "translation": { "en": "The prosecuting counsel used words like “basically”, “put simply” and “a summary” to describe the particulars of the first charge, which, when considered together with the brief facts of the case, made the applicants’ allegation, namely, that the prosecution clearly stated in its opening that the target of the applicants’ fraud were only the partners in Elemental and had nothing to do with the staff of HSBC, very much debatable. Their criticism of having been misled by the prosecution was also far from convincing.", "zh-HK": "主控律師的用詞包括“基本”、“簡單講”及“一個大綱”來形容第一項控罪的詳情，和案情撮要一起考慮時，申請人指控方開案陳述時明言申請人的行騙對象只是Elemental合夥人，和豐銀行職員完全無關的說法有值得商榷之處，他們指受控方誤導更不具說服力。" } }, { "doc_id": 152, "seg_id": 58, "translation": { "en": "In fact, the defence did not ask the prosecution to choose between the partners in Elemental and the staff of HSBC as the targets of the applicants’ conspiracy to use false instruments, and accordingly the prosecution did not do so in the absence of any such request. Indeed, that matter was never in issue or of concern to the parties.", "zh-HK": "事實上辯方沒有要求，控方亦沒有應要求就申請人串謀行使假文件的對象是Elemental的合夥人或是豐銀行的職員之間作出選擇，該議題更非雙方所關注或有爭議的。" } }, { "doc_id": 152, "seg_id": 59, "translation": { "en": "All the applicants complained that it was unfair to them for the prosecution to state in their opening that the victims in the case were the partners in Elemental while the judge found that the “victims” were the staff of HSBC. Mr Lok SC argued that if the “victims” were the partners in Elemental, the applicants would not dispute the allegations that they “induce them to accept the vouchers in question as genuine” and “by reason of so accepting them to do or not to do some act”, the reason being that the meeting with the partners in Elemental was only arranged for the purpose of discussing how to use the vouchers in question. If the victims were the staff of HSBC, however, the applicants would have to dispute the above two allegations, since the purpose of the applicants’ meeting with the bank staff was to verify the genuineness of the documents, and the possibility of inducing ordinary people to accept the vouchers in question was different from that of inducing the staff of a bank to accept them. Mr Lok SC also stressed that the applicants would definitely have addressed the court on the above issue.", "zh-HK": "申請人都指控方開案時指案件受害人是Elemental合夥人，而原審法官卻裁定“受害人”是豐銀行職員的處理方法，對他們造成不公平。駱資深大律師指如“受害人”是Elemental合夥人，申請人不會就“誘使他們接受涉案票據為真實”及“因接受而作出或不作出某些行為”提出爭議，原因是和Elemental合夥人會面只是為了商討如何運用涉案票據而安排，但假若受害人是豐銀行職員則申請人必須爭議上述兩個議題，原因是申請人和豐銀行職員會面的目的是為了查證文件的真偽，而誘使一般人接受有關票據的可能性和誘使銀行職員接受有關票據的可能性不同。駱資深大律師更強調申請人必會就上述議題向法庭陳詞。" } }, { "doc_id": 152, "seg_id": 60, "translation": { "en": "The applicants met the staff of HSBC on 20 January 2009 for the purpose of asking the bank to verify the genuineness of the vouchers in question and to issue verification confirmation.", "zh-HK": "申請人在2009年1月20日和豐銀行職員會面目的是要銀行查證有關票據的真偽及發出驗證確認書。" } }, { "doc_id": 152, "seg_id": 61, "translation": { "en": "According to the evidence of the prosecution witnesses, including that of Yam Chi Wah, Ho Kai Tat, Lee Siu Keung and Cheung Sin Kong, the applicants’ ultimate purpose was to ask HSBC to issue verification confirmation.", "zh-HK": "根據各控方證人，包括任芝華、何啟達、李兆強和張善剛的證供、申請人最終的目的是要求豐銀行發出驗證確認書。" } }, { "doc_id": 152, "seg_id": 62, "translation": { "en": "HSBC, of course, would not issue any such confirmation. Right from the beginning the staff of the bank had suspicions about the genuineness of the vouchers in question, and the case had been reported to the police for record purposes even before the meeting with the applicants.", "zh-HK": "當然，豐銀行不會發出任何驗證確認書。一開始豐銀行的職員已懷疑有關票據是虛假文件，而銀行在和申請人會面前已報警備案。" } }, { "doc_id": 152, "seg_id": 63, "translation": { "en": "Nevertheless, the issue in the case was not whether the applicants did conspire to use false instruments with the intention to induce others to accept them as genuine or whether their intention could be successfully carried out. The issue in the case was simply whether the applicants were aware of the genuineness or otherwise of the documents in question. That was also the only defence put forward by the applicants.", "zh-HK": "但涉案的爭議點並非是申請人是否有串謀使用虛假文書意圖誘使他人接受涉案票據為真文書，亦非他們的意圖最終能否得逞。案件的爭議點只是對涉案文件的虛實，申請人是否知情。該爭議點亦是申請人提出的唯一答辯理由。" } }, { "doc_id": 152, "seg_id": 64, "translation": { "en": "Mr Lok SC submitted that the applicants would have disputed the allegations that they “induce them to accept the vouchers in question as genuine” and “by reason of so accepting them to do or not to do some act”. We are of the view that such an argument is not convincing. In our view, whether the applicants could successfully induce the “victims” to accept the vouchers in question as genuine and whether the “victims” would accordingly do or not do some act was irrelevant to the issue in the case.", "zh-HK": "駱大律師指申請人會爭議“誘使他們接受涉案票據為真文書”及“因接受而作出或不作出某些行為”。本庭認為上述立場是不具說服力的。本庭認為申請人能否成功誘使“受害人”接受涉案票據為真文書及“受害人”會否因此而作出或不作出某些行為根本和案件的爭議無關宏旨。" } }, { "doc_id": 152, "seg_id": 65, "translation": { "en": "Of course, the court and the defence are entitled to know the factual basis upon which the prosecution has conducted the case against a defendant (see R v Chan Kang To [1997] 2 HKC 281, HKSAR v Cheung Hing Man & another (CACC 91/2008, etc). However, when the court convicts a defendant on a different basis from that put forward by the prosecution, the decision to convict is not necessarily so unsafe that it has to be quashed. In R v Leung Mun Lam [1985] 1 HKC 535, the Court of Appeal clearly ruled that whilst a judge in his direction to the jury departs from the basis upon which the prosecution has conducted the case, such a departure is not invariably fatal. The Court of Appeal still have to consider whether the trial judge’s approach has rendered the verdict of conviction unsafe or unsatisfactory, and only in circumstances where the conviction is found to be unsafe or unsatisfactory would the conviction be quashed.", "zh-HK": "當然法庭及辯方都有權知悉控方檢控被告人的事實基礎（見 R v Chan Kang To [1997] 2 HKC 281，HKSAR v Cheung Hing Man & another (CACC 91/2008) 等案）。但當法庭以和控方立場不同的基礎裁定一名被告人罪名成立時，定罪的決定不一定是不穩妥而要撤銷的。在R v Leung Mun Lam [1985] 1 HKC 535案，上訴法庭已明確裁定當原審法官指引陪審團時的基礎有別於控辯雙方處理案件的基礎時，原審法官的做法對定罪的決定不一定是致命的。上訴法庭仍需考慮原審法官的處理方法會否令定罪的裁決變得不安全或不穩妥，而亦只會在定罪裁決不安全或不穩妥的情況下，才會撤銷定罪。" } }, { "doc_id": 152, "seg_id": 66, "translation": { "en": "In support of the above views, Yang JA (as he then was) cited R v Oakwell [1978] 1 WLR 32 where Lord Widgery CJ said in these terms:", "zh-HK": "上訴法庭法官楊鐵樑（當時官階）援引R v Oakwell [1978] 1 WLR 32案，Lord Widgery CJ 大法官判案書的以下段落支持上述立場：" } }, { "doc_id": 152, "seg_id": 67, "translation": { "en": "“We think the proper approach to the argument put forward on this point is this. It is not the obligation of the judge precisely and exactly to follow the presentation of the case as put before him by the prosecution. What the judge has got to do is to secure a fair and sound conclusion at the end of the case. If the judge does not strictly follow the form of presentation which the prosecution have chosen to adopt, then it is always open to the defence to contend that that has resulted in a verdict which is unsafe or unsatisfactory. It does not, in our judgment, in general amount to an irregularity at the trial within the meaning of the Criminal Appeal Act 1968. But undoubtedly where the prosecution approach is departed from by the trial judge it is open to the defence to contend, if they can, that the verdict is thereby rendered unsafe or unsatisfactory.”", "zh-HK": "“本庭認為該爭議點的適當處理方法如下。主審法官無必要一成不變地跟隨控方展示案情。法官需在結案時達到一個公平及正確的結論。如主審法官沒有跟足控方所採納展示案情之形式，辯方有權聲稱主審法官的處理方法導致一項不安全或不穩妥之裁決。但一般而言，該處理方法不構成Criminal Appeal Act 1968條例所指的不正當審訊。當然，如主審法官背離控方的處理方式，辯方有權在有基礎支持的情況下，聲稱裁決因此變得不安全或不穩妥。”" } }, { "doc_id": 152, "seg_id": 68, "translation": { "en": "Even if the trial judge has departed from the prosecution approach, as long as that does not result in any injustice, and given the elements of the basis of conviction are no different from the fundamental allegation of the prosecution, then the verdict of conviction will not be unsafe or unsatisfactory.", "zh-HK": "即使主審法官背離控方的處理方法，只要該做法沒有導致不公平的結果，而定罪的基礎要素亦無異於控方的基本指控，則定罪的裁決不會是不安全或不穩妥的。" } }, { "doc_id": 152, "seg_id": 69, "translation": { "en": "We wish to quote a passage from page 606 of the judgment in R v Japes [1994] Crim LR 605:", "zh-HK": "本庭希望複述R v Japes [1994] Crim LR 605案判案書第606頁內的一段判詞：" } }, { "doc_id": 152, "seg_id": 70, "translation": { "en": "“The judge was not bound by the way in which the Crown opened the case. If, in the light of the evidence as it developed, it became apparent that the same offence was or might have been committed on a somewhat different factual basis, it could not be right to consider, even though it might not be the primary basis put forward by the Crown, so long as it was plain that the defendant was not disadvantaged or prejudiced by the judge so doing.”", "zh-HK": "“法官不一定受制於控方開案時採取的立場。假若證據的發展顯示同一罪行是在稍有不同之事實基礎下干犯，法官並非無權將案件以該事實基礎交由陪審團考慮，雖然該事實基礎和控方提出的事實基礎不一樣。大前提是法官的做法明顯地沒有對被告人造成不利或損害。”" } }, { "doc_id": 152, "seg_id": 71, "translation": { "en": "The applicants were not disadvantaged or prejudiced by the trial judge taking the staff of HSBC as the targets of their fraud rather than the partners in Elemental. The main ground of appeal put forward by the applicants fails.", "zh-HK": "原審法官將申請人串謀詐騙的對象定為豐銀行的職員而非Elemental的合夥人，並沒有對申請人造成不利或損害。申請人提出的主要上訴理由不成立。" } }, { "doc_id": 152, "seg_id": 72, "translation": { "en": "Mr Kan submitted that the process of Xu’s obtaining the certificates of deposits was dramatic, but in our view Xu’s version was simply bizarre. Considering the nature of the certificates of deposits in question against the background of this case, the trial judge was absolutely justified and correct in completely rejecting the explanation that Xu gave in his record of interview.", "zh-HK": "簡大律師指“徐”就其如何取得有關存款證的過程具戲劇化，但本庭認為“徐”的說法屬匪夷所思。以本案背景，考慮有關存款證的性質，原審法官全部否定“徐”在會面記錄所作的解釋絕對是有基礎及正確的。" } }, { "doc_id": 152, "seg_id": 73, "translation": { "en": "The applicants made use of some false instruments to ask HSBC to verify them and issue confirmation. Their intention was specific and was not in issue. It was simply groundless for Mr Kan to contend that the trial judge had not fully considered whether the applicants had intended to induce the staff of HSBC to accept the instruments as genuine and by so accepting them to do or not to do some act to their own prejudice.", "zh-HK": "申請人利用一些虛假文書要求豐銀行驗證及發出確認書。他們的意圖是明確的，更是沒有爭議的。簡大律師指原審法官沒有充份考慮申請人是否意圖誘使豐銀行職員接受該等文書是真文書及如何因而致使他們作出某些對自己不利的行為的立場全無立足點。" } }, { "doc_id": 152, "seg_id": 74, "translation": { "en": "The fact that the applicants failed to successfully mislead the bank staff and that the bank staff did not verify the certificates of deposits in question and issue confirmation as per their request does not mean that the applicants had no intention to induce them to do so, nor does that mean that their purpose was not to make the bank staff do some act to their own prejudice.", "zh-HK": "申請人沒有成功誤導銀行職員及銀行職員不會應他們的要求驗證有關存款證及發出確認書不等如申請人沒有意圖誘使他們這樣做，更不等如他們的目的並非是令銀行職員作出一些對他們不利的行為。" } }, { "doc_id": 152, "seg_id": 75, "translation": { "en": "Mr Kan submitted that the process of Xu’s obtaining the certificates of deposits in question was dramatic. In our view, his version of events was no more than a pack of lies. We have carefully read and analyzed the explanation that Xu gave in his interview with the police. We consider it so ridiculous that no person in his right mind would accept or believe. The trial judge must have carefully considered Xu’s explanation before he arrived at the conclusion that “Xu’s version was utterly bizarre and beyond belief.”", "zh-HK": "簡大律師指“徐”就如何取得有關存款證的過程具戲劇性。本庭認為他的說法根本是胡說八道。本庭已有詳細閱讀及分析“徐”在和警員會面時的解釋。本庭認為“徐”的解釋是荒謬的。任何思想正常的人都不會接納或相信他的解釋。原審法官必然詳細考慮“徐”的解釋後得出的結論是“（徐）的說法實在太匪夷所思，難以置信”。" } }, { "doc_id": 152, "seg_id": 76, "translation": { "en": "In his deliberation, the trial judge obviously took into account such documents and evidence as the “Power of Attorney”, “Letter of Authorization”, “Inheritance Letter” and the “Seal” that were in Xu’s possession at the material times. In fact he did set out those documents and exhibits in paragraphs 15 and 16 of his judgment.", "zh-HK": "在思考過程，原審法官亦明顯有考慮案發時“徐”管有的委任書”，“授權書”、“繼承書”及“印章”等文件和證明，事實上原審法官在判案書第15，16段亦有將該些文件和證據物一一列出。" } }, { "doc_id": 152, "seg_id": 77, "translation": { "en": "The prosecution did not call any expert evidence to prove the falsity of the documentary exhibits, but considering the background of the present case, that would not affect the trial judge’s verdict at all.", "zh-HK": "控方沒有提交專家證據，證明該些文件證物亦是虛假的，以本案的背景而言，絕對不會影響原審法官的裁決。" } }, { "doc_id": 152, "seg_id": 78, "translation": { "en": "Further, the explanation given by Xu in his interview was just his one-sided story which was not put to any test in terms of cross-examination. The trial judge was absolutely justified and correct in completely rejecting his explanation.", "zh-HK": "再者，“徐”在會面時所作的解釋亦只是他片面之詞，沒有經過盤問的測試。原審法官全面否定他所作的解釋絕對是有基礎及正確的。" } }, { "doc_id": 152, "seg_id": 79, "translation": { "en": "In respect of the two charges, the defence put forward by the applicants was merely that they had no knowledge of the false instruments in question.", "zh-HK": "就兩項控罪，申請人提出的答辯論點都只是他們對涉案的虛假文書不知情。" } }, { "doc_id": 152, "seg_id": 80, "translation": { "en": "The only inference that the trial judge drew was that the applicants had reached an agreement to obtain certain advantages with the false instruments set out in charge 1, which would include the inference that they must have known that the instruments were false when they were handed to the staff of HSBC for verification. In our view, the trial judge was entitled to reach the above conclusion, especially in circumstances where the applicants neither gave evidence nor called any witnesses to rebut or weaken the prosecution case against them.", "zh-HK": "原審法官得出唯一的推斷是申請人達成協議以第一項控罪所列出的虛假文書去取得某些利益，包括將文書交給豐銀行職員去驗證時，他們必然知道文書屬虛假。本庭認為原審法官有權得出上述結論，特別是在申請人沒有作供，亦沒有傳召證人作供以解釋，削弱或反駁控方對他們的指控的情況下。" } }, { "doc_id": 152, "seg_id": 81, "translation": { "en": "Similarly, the trial judge was entitled to infer that Xu knew that the instruments in his possession, namely the false “certificates of deposits” set out in charge 2, were all false instruments. Xu did not have any lawful authority or lawful excuse about his possession of those false instruments. The guilty verdict that the trial judge reached was inevitable.", "zh-HK": "原審法官同樣地亦有權推斷“徐”知道他管有的文書，即第二項控罪所指的虛假“存款證”全是虛假文書。“徐”沒有就管有該批虛假文書提出任何合法權限或辯解的說法。原審法官作出的定罪裁決亦是不可避免的。" } }, { "doc_id": 152, "seg_id": 82, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 152, "seg_id": 83, "translation": { "en": "We are satisfied that the applicants’ conviction was neither unsafe nor unsatisfactory. The application for leave to appeal is dismissed.", "zh-HK": "裁定各申請人罪名成立之決定並非不安全或不穩妥之處，本庭駁回他們的上訴許可申請。" } }, { "doc_id": 152, "seg_id": 84, "translation": { "en": "Edmond Lee, Senior Public Prosecutor of the Department of Justice, for the Respondent", "zh-HK": "答辯人: : 由律政司高級檢控官李俊文代表。" } }, { "doc_id": 152, "seg_id": 85, "translation": { "en": "Lawrence Lok SC and Martin Wong, instructed by Sidney Lee & Co., for the 1st and 2nd applicants", "zh-HK": "第一及第二申請人：由李志恆律師事務所轉聘資深大律師駱應淦及大律師王永愷代表。" } }, { "doc_id": 152, "seg_id": 86, "translation": { "en": "Kan Ting To and Bruce Lau, instructed by Lee, Mok & Wong, for the 3rd applicant", "zh-HK": "第三申請人：由李莫黃律師事務所轉聘大律師簡定濤及大律師劉鈞偉代表。" } }, { "doc_id": 153, "seg_id": 1, "translation": { "en": "Hon Leong JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官梁紹中宣讀上訴法庭判案書:" } }, { "doc_id": 153, "seg_id": 2, "translation": { "en": "On 24 July 1998, the Applicant for leave to appeal, Lee Chung Ming, Murphy was convicted before His Honour Judge Chow in the District Court of one count of trafficking in a dangerous drug. He was sentenced to 4½ years’ imprisonment. He now applies for leave to appeal against conviction.", "zh-HK": "上訴許可申請人李忠銘於一九九八年七月二十四日在區域法院被周兆熊區域法官裁定一項非法販運危險藥物罪罪名成立，被判監四年半，現申請許可上訴推翻定罪。" } }, { "doc_id": 153, "seg_id": 3, "translation": { "en": "At about 10 p.m. on 20 July 1997 the Applicant was intercepted in the vicinity of Wun Wah House, Lok Wah Estate by two police officers, PC 53174 (PW1) and PC 48705 (PW3), who were conducting surveillance on criminal activities there. 114.64 grammes of a mixture containing 30.69 grammes of heroin hydrochloride were found on the Applicant. The said mixture was contained in plastic bags found inside six cigarette packets. When the drugs were found on him, the Applicant asked the police officers to give him a chance and not to arrest him, but the two police officers went on to arrest him. Under caution, he again asked the officers to give him a chance and said he was merely “making a living”. Later, a team of police officers conducted a search at the Applicant’s residential premises at Room 2905, Block C, Wun Wah House. Apart from 24 plastic bags of the same type, the police officers did not find any other item of suspicion.", "zh-HK": "申請人是於一九九七年七月二十日晚上十時許在樂華邨奐華樓附近被當時在該處進行監視犯罪活動之警員之一，PC53174（即第一証人）及PC48705（即第三証人）截停。其後在他身上搜出含有30.69克鹽酸海洛英之114.64克之混合物，該混合物分別是裝於六個煙盒內之膠袋。當警員搜出毒品時，申請人要求警員給他一次機會不要拘捕他，但兩警員仍然將他拘捕。申請人在警誡下再次要求警員給予他一次機會，並稱他不過在『搵兩餐啫』。稍後一隊警員搜查申請人在奐華樓C座2905室之寓所。除搜出二十四個同樣之膠袋外，警員並無找到其他可疑物品。" } }, { "doc_id": 153, "seg_id": 4, "translation": { "en": "The Applicant was then taken to Mongkok Police Station. There PW1 interviewed the Applicant and, in the Record of Interview, post-recorded the circumstances of the arrest of the Applicant. After the post-recording was completed, the Applicant wrote down the following: “I agree to the foregoing contents stated by Ah Sir. The white powder was for my own consumption only! I beg Ah Sir for a chance! I beg you not to charge me with drug trafficking! I do not want to say anything else.” At trial, the Applicant objected to the prosecution adducing this Record of Interview as prosecution evidence. He testified that the police officer did not find on him the dangerous drug involved in the case and that he did not make the above cautioned statement voluntarily. He said when he was intercepted that night, the police officers asked him how much dangerous drug he had. He answered that he only had a little more than two ounces of drug and that it was for his own consumption. The police officer did not believe him and told him to surrender the drug trafficker, saying that if he did so, he would be released. After that, a police officer grabbed his lower parts tightly and told him to make a decision promptly. Later, police officers took him to the staircase at Wun Wah House. Inspector Ting Chi Kwok (transliteration), who led the team, asked him whom he had in mind to surrender. He was also told to look for the “distributor” and say that he wanted to buy dangerous drug. But when he found the “distributor”, the “distributor” said there was no stock. The police officers then went to his home to conduct a search and took down his mother’s identity card number. After that, he was again asked to supply information of the drug trafficker, and he was unable to do so. He was then brought inside the elevator and assaulted by the police officers, resulting in injury to his abdomen. He said what he had written down, especially the sentence which asked the police officer not to charge him with drug trafficking, was dictated to him by the police officer. When the officer noticed that what he had written down did not accord with what the officer meant, the officer then slapped him on the face.", "zh-HK": "申請人於是被帶往旺角警署，在該處第一証人會見申請人將拘捕申請人過程補錄於會面紀錄上，補錄完畢後由申請人寫下以下一段字句：『我同意以上阿Sir所講嘅內容。啲白粉係我自己食咋！求阿Sir俾次機會我啦！求你唔好告我販毒啦！其他嘢我唔想再講。』申請人於審訊時，反對控方以此會面紀錄呈堂為控方証據。他作証稱警員並沒有在他身上搜出涉案毒品，而上述警誡口供不是由他自願提供。他稱當晚被截停時警員問他有多少毒品，他答只有兩安士多一點，是他自己食用的，警員不相信，叫他把販毒的人交出來，對他說如果他這樣做，就會釋放他。其後有警員緊握他的下體叫他快點作出決定，稍後警員把他帶到奐華樓樓梯處，帶隊的督察丁治國問他想到交出誰人沒有，又叫他找『拆家』聲稱買毒品，但找到『拆家』後，『拆家』稱無貨。於是警員到他家中搜查，並抄錄他母親的身份証號碼。其後，再要他提供毒販資料，他無法做到，於是他被帶到電梯內，被警員毆打引致他腹部受傷。他稱他所寫下的，特別是他要求警員不要告他販毒那句說話，都是他按照警員所說出的寫下。而當警員發覺他寫下的偏離警員的意思時該名警員便掌摑他。" } }, { "doc_id": 153, "seg_id": 5, "translation": { "en": "After evaluating the testimony of the police officers and of the Applicant, the Judge was satisfied that the dangerous drug in question was found on the person of the Applicant upon search and that the statement of the Applicant was made voluntarily by him to the police. The Judge did not believe the police officer dictated the statements and compelled the Applicant to write them down.", "zh-HK": "法官分析各警員証人証供和申請人証供後，相信涉案毒品是在申請人身上搜出，而申請人的口供亦是他自願向警方提供的。法官不相信內容是由警員讀出，強迫申請人寫下。" } }, { "doc_id": 153, "seg_id": 6, "translation": { "en": "The first ground of appeal contends that the sentences in the Record of Interview that the Applicant agreed to the contents of the post-record and that he asked the police officers to give him a chance and so on, were all written down when he was not under caution. Mr. Kwok, Counsel for the Applicant, submits that this amounted to asking the Applicant to admit guilt in the absence of caution, and that the Judge erred in failing to consider this point. Counsel also submits that, having ruled that the Record of Interview was voluntary, the Judge should have gone on to consider whether he should exercise his discretion not to admit the said Record as part of the prosecution evidence.", "zh-HK": "第一點上訴理由是，申請人在會面紀錄寫下他同意補錄內容，及要求警員給予機會等說話都是他在未警誡下寫的。申請人代表郭大律師指這是等同要申請人在未警誡情況下承認犯罪，而周法官未考慮這點是犯錯。大律師又認為周法官在裁定會面紀錄為自願後，應進而考慮他是否須行使酌情權否決該紀錄成為控方之一部份証據。" } }, { "doc_id": 153, "seg_id": 7, "translation": { "en": "On the facts, the Applicant was arrested at 11.55 p.m. on 20 July. On the following day, that is at 2.30 a.m. on 21 July, PW1 interviewed the Applicant. A mere 2½ hours elapsed from the time of arrest to the time of interview. The Applicant must still have had a clear idea of his right of silence, otherwise he would not have written at the end of the paragraph: “I do not want to say anything else.” The relevant rules on the taking of statements from suspects do not provide that, after post-recording the arrest and cautioning processes, the police officer must caution the suspect again before asking the suspect whether he agrees to the post-recorded contents and before the suspect signs the statement. The Judge did not explain in detail in his Reasons for Verdict why he admitted the Record of Interview as evidence. However, after evaluating the evidence, he ruled that the Record of Interview could be adduced as prosecution evidence. This shows that he must have believed that the Record of Interview was made voluntarily by the Applicant. There were no special circumstances in this case that justified an exercise of discretion to refuse to admit the Record of Interview. Generally speaking, a judge is not required to set out in detail the reasons for admitting or rejecting the Record of Interview as evidence. This legal principle is well-established and supported by authorities. Therefore, the first ground of appeal fails.", "zh-HK": "根據案情，申請人是於七月二十日晚上十一時五十五分被捕，翌日，即二十一日凌晨二時三十分，第一証人與申請人會面。由拘捕至會面時間，相差不過兩個半小時多。申請人對於他可保持緘默之權利，必然記憶猶新。不然申請人不會於該段末寫下：『其他嘢我唔想再講。』警員錄取疑犯口供之有關守則，亦無規定警員必須在補錄拘捕及警誡疑犯過程後，詢問疑犯是否同意補錄內容及疑犯簽署前，再次警誡疑犯。周法官雖然沒有在裁決理由書中詳細陳述他接受會面紀錄呈堂之理由，但他分析証據後，裁定會面紀錄可呈堂為控方証供，這必然是他相信會面紀錄是申請人自願提供的。本案案情亦無特別情形以致周法官須運用酌情權否決會面紀錄呈堂。一般來說法官是無須就接受或否決會面紀錄呈堂之決定，以詳細理由作出解釋。這是既定而有案例支持的法律原則。所以第一項上訴理由不成立。" } }, { "doc_id": 153, "seg_id": 8, "translation": { "en": "The second ground of appeal contends that, in relation to the Applicant’s good character, the Judge had not directed himself to consider the Applicant’s credibility and propensity to commit crime. The Judge made it clear towards the end of the Reasons for Verdict that he was aware that the Applicant had a clear record. He said, “I am aware that the Defendant does not have any criminal record. But a good character direction is not applicable in this case because the Defendant in fact does not have a good character. The main reason is he has admitted to possessing ‘two ounces odd’ of dangerous drug and has admitted that he is a drug addict. Previously, before 20 July, he has taken dangerous drug.” Counsel for the Applicant submits that these words indicate that the Judge had not dealt with the evidence of the Applicant’s good character in accordance with the law.", "zh-HK": "第二項上訴理由是法官未就申請人之良好品格作出自我引導，考慮申請人之可信性及犯罪傾向。周法官在裁決理由書末部聲明他知道申請人並無刑事紀錄。他稱：『本席知道被告人沒有刑事紀錄，但良好品格指引在本案並不適用，因為被告根本上沒有良好的品格，主要原因是他承認管有「兩安幾」的毒品，而他亦承認他是一個有毒癮之人，以前，在七月二十日之前，曾經使用過毒品。』申請人代表大律師指從這段話，可見周法官並未按照法律處理申請人品格良好的証據。" } }, { "doc_id": 153, "seg_id": 9, "translation": { "en": "In Tang Siu-man v. HKSAR [1998] HKLRD 350, Mr. Justice Litton PJ made the following comments on the law regarding good character directions. His view was that, if at the trial of a defendant with no criminal record, information on the good faith of the defendant was disclosed, the judge had a discretion to assess whether the defendant was of good character. The primary consideration was that the judge’s self-direction must be fair and balanced. Applying that principle and taking the facts of this case as a whole, the Applicant having admitted in court to taking and possessing dangerous drug, the Judge was certainly entitled to exercise his discretion to assess whether the Applicant was of good character. That the Applicant in fact did not have a good character was a conclusion that the Judge arrived at in the exercise of his discretion.", "zh-HK": "在鄧兆文訴香港特別政區(1)（譯音）一案，列顯倫大法官就有關良好品格指引有以下法律意見。他認為如果在審訊一名無刑事紀錄的被告時，有關該被告誠信之資料被披露，法官有酌情權評估該被告是否一名品格良好的人。主要之考慮是，法官對自己的指引必須是公正及持平。按照該原則，以本案整體案情而言，既然申請人在庭上承認吸毒及管有毒品，周法官當然有理由運用他的酌情權評估申請人是否品格良好。而周法官認為申請人根本上沒有良好品格是他運用酌情權評估後的結論。" } }, { "doc_id": 153, "seg_id": 10, "translation": { "en": "We take the view that people of good character are not confined to those who do not have any criminal record. In the case of the Applicant, we agree that a good character direction was not applicable. We cannot detect any error in the Judge’s decision in this respect.", "zh-HK": "本庭認為良好品格者不限於無刑事紀錄的人，以申請人之情況，本庭同意良好品格指引不適用於本案，周法官在此方面之裁決，本庭認為沒有錯誤。" } }, { "doc_id": 153, "seg_id": 11, "translation": { "en": "The third and the fourth grounds of appeal are as follows: PW2, PC 50508 had testified in another case. His testimony was not accepted by the judge, and in the end the defendant in that case was acquitted. Following that case, PW2 was charged with perjury. At the time of trial of the present case, PW2 was awaiting trial of that perjury case. The Applicant contends that there were grave doubts about PW2’s credibility. According to the facts of the case, on the night in question, PW2’s involvement in the case was limited to conducting surveillance in the vicinity of Wun Wah House and participating in the search of the Applicant’s premises. PW2 was not involved in the arrest of the Applicant. When the Applicant made the verbal admissions in question after the arrest, PW2 was not present either. When PW2 was notified and arrived at the scene, the Applicant had already been arrested and handcuffed. Therefore PW2 had no significance in the present case. The fact that PW2 was the defendant in a perjury case should not have affected the ruling of the Judge. Counsel for the Applicant contends that the Judge had stopped him from cross-examining PW2 in detail about the perjury case. Having studied the relevant transcript, we are of the view that the Judge had not obstructed the cross-examination by Counsel for the Applicant in this respect. In fact, in the perjury case, PW2 was acquitted after trial in the District Court. PW2 had not been found to be an untrustworthy person who had committed perjury. Therefore, this matter would not have affected the Judge’s assessment of PW2’s credibility.", "zh-HK": "第三、四項上訴理由是：第二証人PC 50508曾在另案作証，他在該案的証供不被法官接納，結果該案被告獲釋放。事後，由該案引起，第二証人被控發假誓。於本案審訊時，第二証人正等候該發假誓案之審訊。申請人指第二証人的可信性十分值得懷疑。根據案情案發當晚第二証人除在奐華樓附近進行監視及曾與其他警員到申請人寓所搜查外，與拘捕申請人之經過無關。申請人在被拘捕後作出有關口頭承認時，第二証人亦不在場。當第二証人接獲通知到達拘捕現場時，申請人已被拘捕，而且已被帶上手扣，所以第二証人於本案並無重要性關係。至於第二証人曾為發假誓一案之被告，此點應不會對法官之裁決有所影響。申請人代表大律師聲稱第二証人作証時，周法官阻止他就發假誓一案詳盡盤問第二証人。本庭閱覽審訊謄本後，認為周法官並無妨礙申請人代表大律師在此方面的盤問。發假誓一案，經區域法院審訊後，第二証人被判無罪釋放，第二証人沒有被認定為曾發假誓不可信之人。所以，此事不會影響法官對第二証人可信性之評估。" } }, { "doc_id": 153, "seg_id": 12, "translation": { "en": "The other grounds of appeal contend that the prosecution had failed to disclose to the defence that there had been complaints against PW2, PW3 and PW5 for failure to discharge their duties. The materials furnished to us by the prosecution show that the complaints concerned were received in June and September 1997. The recommendation of taking disciplinary action against the three witnesses, the disciplinary hearing and the outcome thereof were all subsequent to the trial of this case, which took place on 24 July 1998. The result of the disciplinary hearing was that the three witnesses had not been in breach of the relevant rules. In other words, the investigation committee found that the complaints had not been established at all.", "zh-HK": "其他上訴理由指控方未有向辯方披露第二、第三及第五証人曾被投訴未盡職責。根據控方向本庭提供之資料，有關投訴是於一九九七年六月及九月期間接獲，本案審訊日期為一九九八年七月二十四日。該三名証人之紀律處分建議，聆訊經過及結果同是於本案審訊後發生，聆訊結果是他們無干犯紀律。因此，投訴已被調查委員會認定完全不成立。" } }, { "doc_id": 153, "seg_id": 13, "translation": { "en": "Counsel for the Applicant contends that at trial the prosecution should have disclosed to the defence that the three police officers were subject to a disciplinary hearing and that the Judge, having been informed of this, should have adjourned the trial until after the conclusion of the disciplinary hearing. Counsel for the Applicant contends that the prosecution’s failure to disclose the above fact represented a failure of the prosecution to discharge its duty to provide relevant information to the defence.", "zh-HK": "申請人代表大律師稱控方須於審訊時向辯方透露該三名警員正面對紀律處分聆訊，而周法官亦應在知道有此情況存在時，將審訊押後至紀律聆訊完畢，才繼續審訊本案。申請人代表大律師指控方沒有將此情況披露是控方沒有盡提供資料給予辯方的責任。" } }, { "doc_id": 153, "seg_id": 14, "translation": { "en": "It is true that, in principle, the prosecution has a duty to provide the defence with materials which may affect the prosecution evidence or support the defence case, so that the defence can cross-examine the prosecution witnesses on that basis in order to test their credibility, and so that the trial judge can be made aware of the background of the witnesses, which may have a bearing on his assessment of their credibility. In our view, however, if the materials are beyond the knowledge or control of the prosecution and hence the prosecution is not in a position to provide such information, then the prosecution cannot be said to have failed to discharge its legal duty.", "zh-HK": "本庭認為雖然原則上，控方有責任將有關可能影響控方証供或支持辯方案情之資料向辯方提供，以便辯方可以此為依據盤問控方証人，以測試証人之可信性，和使主審法官對証人背景有知悉，以評估証人之可信性，不過，如資料不在控方知悉或控制範圍內以致控方未能提供該資料，那就不能說控方未履行法律定下之責任。" } }, { "doc_id": 153, "seg_id": 15, "translation": { "en": "In the present case, at the commencement of trial, the information in the possession or knowledge of the Prosecution was limited to the complaints against the three police officers. The prosecution could not possibly disclose whatever that might happen subsequently. The contention that the prosecution had not discharged its duty is simply unsustainable and cannot form the basis for saying that the Judge’s verdict was erroneous or that the conviction was unsatisfactory or improper.", "zh-HK": "以本案而言，控方在本案審訊開始時所管有或獲悉之資料只限於三名警員被人投訴。而事後一切可能發生之事控方當時是無法披露的，所以指控方未盡責任一說並不正確，而且這亦不能成為指責周法官判決錯誤，或該判決不能令人滿意或有不妥善之處。" } }, { "doc_id": 153, "seg_id": 16, "translation": { "en": "We take the view that the evidence in the present case, once accepted by the Judge as true, is sufficient to support the Applicant’s conviction. Indeed, the Judge had not harboured any doubt about the prosecution’s evidence. We consider the conviction unassailable and in no respect unsatisfactory. The application for leave to appeal is accordingly dismissed.", "zh-HK": "本庭認為本案証供，一旦被周法官接納為真實，是足以支持他裁定申請人罪名成立。而周法官對控方証據毫無懷疑。本庭認為裁決是無可質疑，亦無不令人不滿意之處。申請上訴許可駁回。" } }, { "doc_id": 153, "seg_id": 17, "translation": { "en": "Court of First Instance", "zh-HK": "註：(1)TANG Siu-man v. HKSAR [1998] HKLRD 350" } }, { "doc_id": 153, "seg_id": 18, "translation": { "en": "Mr. A Luk, Deputy Director of Public Prosecutions and Ms. C Ko, Senior Government Counsel, for the Respondent.", "zh-HK": "答辯人：由陸貽信副刑事檢控專員及高寶翠高級政府律師代表" } }, { "doc_id": 153, "seg_id": 19, "translation": { "en": "Mr. Eric Kwok, assigned by the Legal Aid Department, for the Applicant.", "zh-HK": "上訴許可申請人：由法律援助署委派郭楝明大律師代表" } }, { "doc_id": 154, "seg_id": 1, "translation": { "en": "Hon Yeung Acting CJHC (giving Reasons for Judgment of the Court):", "zh-HK": "高等法院署理首席法官楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 154, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 154, "seg_id": 3, "translation": { "en": "The applicant (Chan Chau Lam) was charged with one count of unlawful trafficking in 21.52 g of powder containing 17.02 g of ketamine (commonly called “K chai”). He pleaded not guilty and was on trial before District Judge Stanley Chan (the trial judge).", "zh-HK": "申請人（陳秋林）被控一項非法販運21.52克粉末，內含17.02克氯胺酮（俗稱「K仔」）罪。申請人否認控罪並在區域法院法官陳廣池（原審法官）席前受審。" } }, { "doc_id": 154, "seg_id": 4, "translation": { "en": "On 3 October 2011, the trial judge convicted the applicant of the charge and sentenced him to 4 years’ imprisonment.", "zh-HK": "2011年10月3日，原審法官裁定申請人罪名成立，並判他入獄4年。" } }, { "doc_id": 154, "seg_id": 5, "translation": { "en": "The applicant felt aggrieved by the conviction and sentence, and, represented by Mr Ken Ng of counsel, he sought leave from this court to appeal against conviction and/or sentence. On 25 October 2012, the applicant’s legal representatives informed the court that the applicant abandoned the application for leave to appeal against sentence, which was dismissed accordingly. This court was only required to deal with his application for leave to appeal against conviction. At the end of the hearing, this court granted his application for leave to appeal against conviction and treated it as the appeal proper. We allowed the appeal, quashed the conviction and set aside the sentence. However, the case was ordered to be remitted to the District Court for a retrial on the same charge before another judge. These are our reasons.", "zh-HK": "申請人不服定罪及判刑，由伍健民大律師代表，要求本庭批准他就定罪及/或判刑上訴。2012年10月25日，申請人的代表律師通知法庭申請人放棄就判刑的上訴許可申請，而該申請亦因此被撤銷。本庭只需處理他就定罪的上訴許可申請。經聆訊後，本庭批准申請人就定罪提出的上訴許可申請，並視其申請為正式上訴。本庭裁定申請人上訴得直，並撤銷申請人的定罪及判刑，但本庭下令將案件發還區域法院就同一控罪由另一法官重審。以下是本庭的裁決理由。" } }, { "doc_id": 154, "seg_id": 6, "translation": { "en": "Prosecution case", "zh-HK": "控方案情及證據" } }, { "doc_id": 154, "seg_id": 7, "translation": { "en": "The scene of the crime was a residential unit in Yue Tai House, Yue Wan Estate, Chai Wan Road (the Residence). On 7 April 2011, the police conducted an anti-narcotic operation in the vicinity of the Residence. At around 8 pm, the applicant appeared outside the Residence. He took out the key(s), and when he was just about to open the metal gate of that Residence, he was stopped by the police. When the police showed him the search warrant, he became agitated and tried to run away but was subdued. The applicant shouted loudly, “Release me, the police are hitting people,” and kept on struggling. At that time, a woman inside the Residence opened the wooden door and asked what the matter was. The applicant said loudly, “Mom, don’t open the door, these are the cops.”", "zh-HK": "案發現場是柴灣道漁灣邨漁泰樓一住宅（該住宅）。2011年4月7日，警員在該住宅附近進行反毒品行動。晚上約8時，當申請人在該住宅外出現，並取出鑰匙預備打開該住宅的鐵閘時，遭警員截停。警員向申請人出示搜查令時，申請人情緒激動，企圖逃跑，但遭制服。申請人大聲說：“放開我，警察打人”，並不停掙扎。當時該住宅有一女士開了木門，查問甚麼事，申請人大聲說：“阿媽，唔好開門，差人嚟”。" } }, { "doc_id": 154, "seg_id": 8, "translation": { "en": "After that, the police searched and found on the applicant’s person two plastic bags containing dangerous drug and a transparent plastic bag containing 100 resealable plastic bags. Under caution, the applicant admitted that the dangerous drug inside the two plastic bags was “K chai”, but when being asked why there were so many plastic bags, he did not respond. Subsequently, the applicant further said under caution, “The two packets of ‘K chai’” are for my own consumption, give me a way to go.”", "zh-HK": "隨後警員在申請人身上搜出兩個膠袋，內有毒品及一個透明膠袋，內載有100個透明可再封口膠袋。警誡下，申請人承認兩個膠袋內的毒品是「K仔」，但被問及為何有那麼多膠袋時，申請人沒有回應。其後，申請人在警誡下再說：“兩包「K仔」係自己食，俾條路行”。" } }, { "doc_id": 154, "seg_id": 9, "translation": { "en": "Later, after the applicant’s mother had opened the metal gate of the Residence, the police went in to search but no contraband was found.", "zh-HK": "其後，警員在申請人母親開啟該住宅的鐵閘後，進入該住宅搜查，但沒有發現任何違禁品。" } }, { "doc_id": 154, "seg_id": 10, "translation": { "en": "After taking the applicant back to Chai Wan Police Station, the police showed him a post-record of what had happened at the scene for him to read it and requested him to copy a declaration. They gave him a copy and then conducted a video interview with him. After the interview, the police gave the applicant a DVD containing the record of interview. During the interview, the applicant reiterated that the dangerous drug was for his own consumption and the plastic bags on his person were for bringing drugs outside more conveniently. He indicated that he had bought the “K chai” in question for $1,800, and the quantity could last him for the best part of a month. However, he refused to disclose the identity of the person(s) who had provided him the dangerous drug.", "zh-HK": "警員帶申請人返回柴灣警署後，將一份案發情況的補錄給申請人閱讀及要求他抄寫聲明，並將一份副本交了給他後便和他進行錄影會面。會面完畢後警員將一隻會面記錄光碟交了給申請人。會面時，申請人重申毒品是作自用而身上的膠袋是為了方便將毒品帶出街。申請人表示涉案的「K仔」是他花了1,800元購買，份量足夠他吸食大半個月，但他拒絕透露供應毒品給他的人之身分。" } }, { "doc_id": 154, "seg_id": 11, "translation": { "en": "After the interview, a lawyer surnamed Wan visited the applicant and was allowed to meet him alone. The police also gave the applicant a DVD containing the record of the interview.", "zh-HK": "會面完畢後，有一尹姓律師探望申請人並獲准和他單獨會面。警員亦有將一隻會面記錄光碟交了給申請人。" } }, { "doc_id": 154, "seg_id": 12, "translation": { "en": "A number of police officers said in their testimonies that when the applicant was intercepted, he did struggle and shout loudly, “The cops are hitting people,” and told his mother not to open the door of the Residence. They also confirmed that under caution, the applicant had said, “The two packets of ‘K chai’ are for my own consumption, give me a way to go.” The police officers who had taken part in interviewing the applicant all claimed that the applicant was voluntary in having the video interview.", "zh-HK": "多名警員作供時都表示在被截查時，申請人有掙扎及高呼“差人打人”，並囑咐其母親不要開啟該住宅的門。他們亦確認在警誡下，申請人有說過“兩包「K仔」係自己食，俾條路行”。有份參與和申請人會面的警員都聲稱申請人是自願進行錄影會面的。" } }, { "doc_id": 154, "seg_id": 13, "translation": { "en": "The applicant’s stance and evidence in relation to the confession", "zh-HK": "申請人就有關招認的立場及證據" } }, { "doc_id": 154, "seg_id": 14, "translation": { "en": "On the special issue, the applicant said in his testimony that the police had framed him up. He said the police had not found any dangerous drug whatsoever upon searching his person and they even treated him with violence. The applicant said that after subduing him with violence, the police just took out the key(s) from his trousers pocket and forced their way into the Residence.", "zh-HK": "在特別事項，申請人作供時指遭警員陷害誣告。他指警員根本沒有在他身上搜取任何毒品，更對他施用暴力。申請人指警員暴力制服他後，從其褲袋取出鎖匙，強行進入該住宅。" } }, { "doc_id": 154, "seg_id": 15, "translation": { "en": "The applicant also said that the police, having purported to have found some plastic bags and white-coloured powder inside the Residence, demanded that he should admit those things had been searched out from his person by them lest his family members be “disturbed”. The applicant said that it was under the above circumstances that he agreed to cooperate with the police. The applicant also said that he had not read the content of the post-record but he did, as instructed by the police, copy the post-record declaration and sign.", "zh-HK": "申請人亦指警員聲稱在該住宅內搜獲一些膠袋及白色粉末後要申請人承認該些物件是警員在他身上搜出的，否則會“搞”他的家人。申請人指是在上述情況下他同意和警方合作。申請人亦指雖然他沒有看過補錄的內容，但仍有按警員的指示抄寫補錄聲明及簽名。" } }, { "doc_id": 154, "seg_id": 16, "translation": { "en": "The applicant said firmly that when the police demanded to conduct a video interview with him, they did indicate to him that he was only required to answer a few simple questions and then he could reply by saying “not clear”, “don’t know”, “don’t recall”, or “not willing to answer” or not giving any response, and the interview would end. The applicant said firmly that he himself had not made any confession.", "zh-HK": "申請人力稱當警員要和他進行錄影會面時，有向他表示他只需回答幾條簡單問題，然後他可以說「不清楚」、「不知道」、「不記得」、「不願回答」或不作反應，會面就會終止。申請人力稱自己沒有作出過任何招認。" } }, { "doc_id": 154, "seg_id": 17, "translation": { "en": "The applicant called his mother, Madam Leung, to testify. Madam Leung also said that the police had threatened her, telling her not to obstruct them and to open the main door of the Residence, or otherwise, they would “arrest and take her back to the police station and seal off her flat”.", "zh-HK": "申請人有傳召其母親梁女士作供。梁女士亦指警員威嚇她不要阻礙他們及開啟該住宅的大門，否則會“拉她返差館，封她屋”。" } }, { "doc_id": 154, "seg_id": 18, "translation": { "en": "The trial judge’s ruling on special issue", "zh-HK": "原審法官就特別事項的裁決" } }, { "doc_id": 154, "seg_id": 19, "translation": { "en": "After hearing the evidence and submissions of both parties on the special issue, the trial judge made the following ruling orally:", "zh-HK": "經聆聽過雙方就特別事項的證據及陳述後，原審法官口頭上作出以下裁決：" } }, { "doc_id": 154, "seg_id": 20, "translation": { "en": "“I have thoroughly examined the testimonies of various prosecution witnesses and also considered the testimonies of the defendant and his mother on the special issue in detail. I have also examined the note-book in question, the transcript and document(s) related to the video interview. I have also listened to the submissions given by both sides on the special issue.", "zh-HK": "“本席仔細審評各名控方證人嘅證供，亦都詳細考慮被告同埋被告母親就特別事項嘅證供，本席亦都審視有關嘅記事冊、錄影會面相關嘅謄本同埋文件，本席亦都聽取咗控辯雙方就特別事項呢個嘅陳詞。" } }, { "doc_id": 154, "seg_id": 21, "translation": { "en": "I am satisfied of the evidence of the prosecution witnesses, and believe that the verbal confession was made at the scene in the circumstances as described by the prosecution witnesses and that this confession was made under caution by the defendant voluntarily. I find that the words on page 37 of the note-book came into being in Room 620 where the defendant did sign for confirmation. At Chaiwan Police Station, the defendant also wrote down the declaration for the post-recorded statement on the note-book and signed to confirm. I also believe the prosecution witnesses regarding the circumstances under which the notice to persons in custody was issued, and that the defendant was voluntary in having the video interview. I find that the prosecution has proved beyond all reasonable doubt the existence and voluntariness of the confession.” (emphasis added)", "zh-HK": "本席信納控方證人嘅證供，相信喺現場有關嘅口頭招認確實有如控方證人所供述嘅情況之下發生，而呢一個招認亦都喺警誡之下，由被告自願所作出。本席認為記事冊第37頁嘅字句係喺620室產生，被告亦都喺620室簽名作實。而喺柴灣警署，被告亦都喺記事冊上嘅補錄口供寫上聲明，簽名作實。本席亦都相信控方證人就被羈留人士通知書嘅簽發情況，而錄影會面係被告喺自願嘅情況之下進行。本席裁定控方係喺毫無合理疑點之下，證明咗招認嘅存在同埋其自願性。”（本庭強調）" } }, { "doc_id": 154, "seg_id": 22, "translation": { "en": "In the ruling on special issue stated in his reasons for verdict, the trial judge found that the police officers’ testimonies were honest and reliable. In his view, the police officers would not, in relation to the finding of the dangerous drug, complicate the matter or make up a story to frame up the applicant.", "zh-HK": "在其裁決理由書之特別事項的裁決部分，原審法官裁定警員的證供誠實可靠。原審法官認為警員不會就搜到毒品一事橫加枝節、虛構故事誣告申請人。" } }, { "doc_id": 154, "seg_id": 23, "translation": { "en": "The trial judge did believe that, the applicant had said under caution, “These two packets of ‘K chai’ are for my own consumption, give me a way to go, okay?”", "zh-HK": "原審法官確信被警誡後，申請人有說過：“呢兩包「K仔」我係自己食，俾條路行下，得唔得”。" } }, { "doc_id": 154, "seg_id": 24, "translation": { "en": "The trial judge said that in the content of the post-record in question, the most important confession was that the applicant had said, “The ‘K chai’ are for my own consumption,” and he had the chance to read the content of the post-record before appending his signature and writing down the declaration. The trial judge emphasized that the applicant not only raised no objection to the content of the post-record, but made the same confession in the video interview conducted immediately afterwards.", "zh-HK": "原審法官指出在有關的補錄內容，最重要的招認是申請人說：“「K仔」是自己食”，而申請人是有機會閱讀過補錄內容後才簽名及寫下聲明。原審法官強調申請人不但沒有反對補錄內容，更隨即在錄影會面時再作出相同招認。" } }, { "doc_id": 154, "seg_id": 25, "translation": { "en": "The trial judge did not accept the applicant’s grounds of objection in respect of the confession and the record of interview.", "zh-HK": "原審法官不接受申請人對招認和會面記錄的反對理由。" } }, { "doc_id": 154, "seg_id": 26, "translation": { "en": "The trial judge stated clearly that he had adopted the double barrel approach in considering the whole case, and ruled that the applicant had in fact made the confession which was voluntary and the content was true.", "zh-HK": "原審法官表明是以雙管式（double barrel approach）考慮整宗案件，並裁定申請人確有作出招認，而招認是他自願作出，內容亦是真確的。" } }, { "doc_id": 154, "seg_id": 27, "translation": { "en": "Therefore, the trial judge ruled that the post-record and the record of video interview should be admissible with full weight attached.", "zh-HK": "因此原審法官裁定有關補錄及錄影會面記錄都應呈堂為證並給予其充份比重。" } }, { "doc_id": 154, "seg_id": 28, "translation": { "en": "The applicant’s defence", "zh-HK": "申請人的答辯理由" } }, { "doc_id": 154, "seg_id": 29, "translation": { "en": "The applicant admitted that the dangerous drug in question was in his possession, but said that the drug had been found from the mattress on the bed in his room inside the Residence instead of on his person. The applicant denied having made any confession, but in respect of the general issue, he did not give evidence to defend himself or call any witness.", "zh-HK": "申請人承認涉案毒品是在他管有下，但毒品是在該住宅內他房間床上的床褥找到，而非在他身上搜到。申請人否認有作過任何招認，但就一般事項，申請人沒有作供自辯，亦沒有傳召證人為他作供。" } }, { "doc_id": 154, "seg_id": 30, "translation": { "en": "Verdict given by the trial judge", "zh-HK": "原審法官就案件的裁決" } }, { "doc_id": 154, "seg_id": 31, "translation": { "en": "The trial judge rejected the applicant’s allegations that the dangerous drug in question had been found from the mattress in the applicant’s room inside the Residence and the plastic bags from the paper bag hung on the wall in the room.", "zh-HK": "原審法官否定申請人所指有關毒品是在該住宅內申請人房間之床褥找到，而膠袋則在房間掛在牆上的紙袋中找到的說法。" } }, { "doc_id": 154, "seg_id": 32, "translation": { "en": "The trial judge reiterated that the applicant had not only confessed to the police officer who had arrested him, but also made the same confession in the video interview. According to the post-record and the record of interview, the applicant admitted in clear terms that the “K chai” had been searched out from his person and was for his own consumption, and the plastic bags were for bringing small amount of dangerous drug outside for consumption more conveniently. The applicant did not explain the source of the “K chai” but said that it was worth $1,800 and the quantity could last him for the best part of a month.", "zh-HK": "原審法官重申申請人不但有向拘捕他的警員作出招認，更在錄影會面時再作出相同招認。根據該些補錄及會面記錄，申請人明確承認有關「K仔」是在他身上搜出，是作自己吸食用，而膠袋則是方便帶少量毒品出外吸食。申請人沒有說明「K仔」的來源，但指其價值1,800元及其份量足以供他吸食大半個月。" } }, { "doc_id": 154, "seg_id": 33, "translation": { "en": "The trial judge emphasized that at the material time the applicant was returning home instead of going out. He also stressed that the applicant had divided the drug into two packets and was at the same time carrying over 100 plastic bags with him.", "zh-HK": "原審法官強調事發時，申請人正返家而非外出。原審法官亦強調申請人將毒品分開兩包，更同時攜帶100多個膠袋在身上。" } }, { "doc_id": 154, "seg_id": 34, "translation": { "en": "The trial judge refused to accept that the dangerous drug in the applicant’s possession was for his own consumption and drew the inference that he had possessed the drugs for the purpose of unlawful trafficking. Therefore, the applicant was convicted of the offence of unlawful trafficking in a dangerous drug.", "zh-HK": "原審法官否定申請人管有的毒品是作自己吸食用的說法，並推論他管有毒品是作非法販運用途。因此，原審法官裁定申請人非法販運毒品罪罪名成立。" } }, { "doc_id": 154, "seg_id": 35, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 154, "seg_id": 36, "translation": { "en": "Mr Ken Ng, counsel for the applicant, advanced a number of grounds in support of the appeal. He submitted that the trial judge, in dealing with the voluntariness of the applicant’s confession, should not have considered whether the confession had in fact been made, and instead should, on the presumption that such confession had been made, determine whether it had been made voluntarily and whether it should be admissible.", "zh-HK": "代表申請人的伍健民大律師提出多項上訴理由。伍大律師指原審法官在處理申請人的招認是否自願作出時，不應考慮申請人是否確有作出有關招認，而應假設他有作出過招認來決定招認是否申請人自願作出及應否呈堂為證。" } }, { "doc_id": 154, "seg_id": 37, "translation": { "en": "Mr Ng contended that the trial judge, before hearing all the evidence, including the evidence that the defence would or would possibly put forward, had already found that the applicant’s confession did “exist” and that the content of the confession was true. In doing so, he has been unfair to the applicant and violated the principle laid down in Thongjai & Another v The Queen [1997] HKLR 678.", "zh-HK": "伍健民大律師認為原審法官在沒有聽取全部證供，包括辯方會或可能會提出的證供前，便裁定申請人的招認的確“存在”，而其招認的內容亦是真確的做法，對申請人不公平，亦違反了Thongjai & Another v The Queen [1997] HKLR 678案所定下的原則。" } }, { "doc_id": 154, "seg_id": 38, "translation": { "en": "It was submitted that when the trial judge was dealing with the voluntariness of the confession made by the applicant, he erred in also dealing with the truthfulness of its content at the same time.", "zh-HK": "伍大律師指原審法官在處理有關招認是否申請人自願作出時，同時處理招認內容的真確性，做法不妥。" } }, { "doc_id": 154, "seg_id": 39, "translation": { "en": "Mr Ng also pointed out when the applicant indicated he admitted possession of dangerous drug, the trial judge said twice, “for rebuttal,” showing that the trial judge thought the applicant bore the burden to prove that he had not “trafficked in dangerous drug”, which contravened the principle of requiring the prosecution to prove the guilt of the applicant.", "zh-HK": "伍大律師亦指原審法官在申請人表示承認藏毒時，兩次說過“打rebuttal”，顯示原審法官認為申請人有舉證責任去證明他沒有“販毒”，和控方要證明申請人有罪的原則有抵觸。" } }, { "doc_id": 154, "seg_id": 40, "translation": { "en": "In his written submission, Mr Ng asserted that during the video interview, the applicant had expressed clearly on a number of occasions that he did not want to answer questions but the police persisted in questioning him. It was contended that the police conduct had infringed the applicant’s right to remain silent, and therefore the record of interview in question should not be admitted as evidence.", "zh-HK": "在其書面陳述，伍大律師力稱在錄影會面過程，申請人多次表明不想回答問題，但警員仍繼續向他發問。伍大律師認為警員的做法侵犯了申請人保持緘默的權利，故原審法官不應採納有關錄影記錄為證據。" } }, { "doc_id": 154, "seg_id": 41, "translation": { "en": "Mr Ng submitted that the trial judge should not have rejected the applicant’s explanation of having the dangerous drug in question for his own consumption. It was contended that basing on the facts of the case, the inference of “trafficking” drawn by the trial judge was not the only reasonable inference.", "zh-HK": "伍大律師認為原審法官不應拒絕接納申請人的解釋，指涉案毒品是作自己吸食用。他認為根據案情，原審法官作出的“販毒”推論並非是唯一合理的推論。" } }, { "doc_id": 154, "seg_id": 42, "translation": { "en": "Mr Ng said that the trial judge, in considering whether the applicant had “trafficked in a dangerous drug”, had taken into account some unproved matters, including that the dangerous drug and the empty plastic bags were found inside the applicant’s room. Mr Ng asserted that those were merely suggestions put forward by the defence in cross-examining prosecution witnesses and they were unproved, and hence the trial judge should not have based on them to draw any inference.", "zh-HK": "伍大律師指原審法官在考慮申請人是否有“販毒”時，考慮了一些未經證實的事項，包括毒品和空膠袋是在申請人房間內找到的。伍大律師力稱該些說法只是辯方在盤問控方證人時作出的指稱，但指稱未經證實，故原審法官根本不應依賴該些未經證實的事項來作出任何推論。" } }, { "doc_id": 154, "seg_id": 43, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 154, "seg_id": 44, "translation": { "en": "The prosecution case against the applicant was extraordinarily simple. When the applicant was intercepted by the police near his residence, he struggled and tried to flee. After subduing the applicant, the police searched him and found on his person the dangerous drug in question and a lot of plastic bags. Under caution, the applicant admitted that the dangerous drug was “K chai”, but indicated that the drug was for his own consumption, and at the same time asked the police to “give him a way to go”.", "zh-HK": "控方針對申請人的案情異常簡單。警員指在申請人的家附近截查他時，申請人掙扎試圖逃跑。申請人被制服後，警員在他身上搜取涉案毒品及大量膠袋。警誡下，申請人承認毒品是「K仔」，但表示毒品作自己吸食用，並同時要求警員“俾條路行”。" } }, { "doc_id": 154, "seg_id": 45, "translation": { "en": "The applicant copied the declaration onto the post-record of what had happened at the scene, and after that made the same confession in a video interview, and further indicated that he had bought the “K chai” in question for $1,800, which could last him for the best part of a month. The applicant also indicated that the plastic bags were used for bringing drug on his person more conveniently.", "zh-HK": "申請人在案發情況的補錄文件內抄寫聲明後再在錄影會面作出相同的招認，更表示涉案「K仔」是他花了1,800元購入，足夠他吸食大半個月。申請人更表示膠袋是為了方便他將毒品攜帶在身上。" } }, { "doc_id": 154, "seg_id": 46, "translation": { "en": "The applicant objected to the prosecution producing his confession as evidence on the ground that it was not made voluntarily. The trial judge, after hearing evidence from both sides, ruled on the special issue. In doing so, he stated that it was after he had thoroughly considered the testimonies of witnesses of both sides and examined the relevant documents that he found the applicant’s confession had been made voluntarily. In making such ruling, the trial judge also found that the prosecution had proved beyond all reasonable doubt the “existence” and voluntariness of the confession.", "zh-HK": "申請人反對控方將其招認呈堂為證，理由是招認並非是自願作出。原審法官在聆聽過雙方的證據後，就特別事項作出裁決，當時原審法官表示有仔細考慮雙方證人的證供及審視過有關文件後，才裁定有關招認是申請人自願作出的。在作出該裁決時，原審法官同時認為控方已毫無合理疑點地證明招認的“存在”及其自願性。" } }, { "doc_id": 154, "seg_id": 47, "translation": { "en": "In his written reasons for verdict, on the special issue, the trial judge found that the content of the applicant’s confession was true.", "zh-HK": "在其書面裁決理由書就特別事項裁決的部分，原審法官裁定申請人的招認內容是真確的。" } }, { "doc_id": 154, "seg_id": 48, "translation": { "en": "At trial, it was by consent that the special issue was to be dealt with by way of the alternative procedure. The trial judge also stated clearly that he had adopted the double barrel approach in considering the applicant’s confession. By that time, both parties had already closed their respective cases on the special issue as well as the general issue. At this stage, it was not unjustifiable for the trial judge to set out his reasons for finding the applicant’s confession voluntary and at the same time find that such confession was true. However, we cannot ignore that when the trial judge was giving his verbal ruling on the special issue, he already stated clearly that he accepted the “existence” and voluntariness of the applicant’s confession.", "zh-HK": "原審時，控辯雙方同意在特別事項的案中案是以交替程序進行。原審法官亦表明他考慮申請人的招認時是採納雙管式（double barrel approach）方法。當時雙方已就特別事項和一般事項舉證完畢。在這個階段，原審法官列出他裁定申請人的招認是自願作出的理由及同時裁定招認是真確，是無可厚非的。但本庭不能忽視，原審法官就特別事項作出其口頭裁決時已表明他接受申請人招認的“存在”及其自願性。" } }, { "doc_id": 154, "seg_id": 49, "translation": { "en": "In deciding whether an accused has made a confession voluntarily, the court only needs to deal with the voluntariness of such confession but not whether such confession was in fact made or whether the content is true. The above point of law has been well established in many precedents. (See cases such as Thongjai, HKSAR v Chiu Kin Wah and Another CACC 244/2002 and HKSAR v Wong Kam-chan & Another CACC 142/2011)", "zh-HK": "在處理一名被告人的招認是否自願作出時，法庭只需處理招認的自願性而不應同時處理被告人是否確實曾作出過有關招認或招認內容是否真確。上述法律觀點已在多宗案例中確立。（見Thongjai案，香港特別行政區政府訴趙健華及另一人CACC 244/2002，HKSAR v Wong Kam-chan & Another CACC 142/2011等案）" } }, { "doc_id": 154, "seg_id": 50, "translation": { "en": "In this case, the trial judge has obviously violated the principles laid down in cases such as Thongjai. He, in determining whether the applicant had made the confession voluntarily, also ruled on whether such confession in fact “existed” and whether its content was true. Mr Ira Lui representing the respondent also agreed that it was not safe or satisfactory for the trial judge to handle the matter in such way.", "zh-HK": "在本案，原審法官明顯違反了Thongjai等案定下的原則，在裁決申請人的招認是否自願作出時，同時就招認是否“存在”及招認內容的真確性作出裁決。代表答辯人的高級檢控官雷芷茗亦同意原審法官這個處理方式有欠穩妥。" } }, { "doc_id": 154, "seg_id": 51, "translation": { "en": "This court reiterates that when a District Judge deals with the voluntariness of an accused’s confession, the judge should, on the assumption that the alleged confession was made, after hearing the evidence and submissions made by both sides on the special issue, only need to determine if the confession in question was made by the accused voluntarily, and should not at the same time determine if such confession in fact exists and if the content is true. The questions of whether the confession was in fact made and whether its content is true should not be determined until both sides have closed their respective cases and finished their submissions on the charge. The presiding judge needs to make it clear that the above decisions are made at different stages, and the trial judge should have avoided using what he called the double barrel approach for the avoidance of misunderstanding.", "zh-HK": "本庭重申，區域法院法官在處理一名被告人的招認是否自願作出時，應假設被告人的招認存在及在聆聽過控辯雙方就特別事項的證據及陳述後，只需裁定有關招認是否被告人自願作出，而不應同時處理有關招認是否存在及招認內容是否真確。有關招認是否存在及招認內容是否真確的裁決應在控辯雙方已就控罪提出全部證據及作出結案陳述後才作出。主審法官需表明上述的裁決是在不同階段作出，而為了避免誤會，原審法官應避免使用他所稱的雙管式（double barrel approach）方式。" } }, { "doc_id": 154, "seg_id": 52, "translation": { "en": "Mr Ng’s contention that the trial judge had erred in imposing the burden of proof on the applicant was first based on the conversation between the trial judge and him when the applicant pleaded to the charge, which was as follows:", "zh-HK": "伍大律師指原審法官錯誤地將舉證責任放在申請人身上的說法，首先建基在申請人對控罪答辯時，他和原審法官的以下對答：" } }, { "doc_id": 154, "seg_id": 53, "translation": { "en": "“Court Interpreter: Do you plead guilty or not guilty?", "zh-HK": "“法庭傳譯主任：認罪？唔認㗎？" } }, { "doc_id": 154, "seg_id": 54, "translation": { "en": "Accused: Not guilty, but I admit possession.", "zh-HK": "被告人：唔認，但係我認藏有。" } }, { "doc_id": 154, "seg_id": 55, "translation": { "en": "Mr Ng: Yes, this is consistent with my instruction, Your Honour.", "zh-HK": "伍先生：係，呢個吻合我嘅指示，法官閣下。" } }, { "doc_id": 154, "seg_id": 56, "translation": { "en": "Court: Please speak up and say that once again.", "zh-HK": "官：請你大聲啲講一次。" } }, { "doc_id": 154, "seg_id": 57, "translation": { "en": "Accused: Deny trafficking and I admit possession.", "zh-HK": "被告人：唔認販運，我認藏有。" } }, { "doc_id": 154, "seg_id": 58, "translation": { "en": "Court: Speak up.", "zh-HK": "官：大聲啲講。" } }, { "doc_id": 154, "seg_id": 59, "translation": { "en": "Accused: I deny trafficking, but I admit possession.", "zh-HK": "被告人：我唔認販運嘅，但係我認藏有。" } }, { "doc_id": 154, "seg_id": 60, "translation": { "en": "Court: You admit possession, i.e. for rebuttal, this time?", "zh-HK": "官：你認藏有，即係rebuttal，今次？" } }, { "doc_id": 154, "seg_id": 61, "translation": { "en": "Mr Ng: As to the circumstances of the possession, they are different from the facts -- alleged by the prosecution. I don’t know if the prosecution would still reply on the voir dire -- namely the statement, that is we would say that the drug…", "zh-HK": "伍先生：嗰個藏有嗰個情況呢，同控方係嗰個--所講個案情係唔同嘅，唔知控方會唔會仲倚賴嗰個案中案嗰--即係嗰個口供紙，即係我哋話毒..." } }, { "doc_id": 154, "seg_id": 62, "translation": { "en": "Court: This is not what the court has to deal with now, is it? Now, what the court has to know is whether the defendant pleads guilty or not guilty to the charge of trafficking in a dangerous drug.", "zh-HK": "官：呢樣嘢唔係法庭而家要處理嘅情況，係咪？而家法庭要知道嘅話，就係被告就呢一個販運毒品罪承認定不承認吖嘛。" } }, { "doc_id": 154, "seg_id": 63, "translation": { "en": "Mr Ng: Right, he pleads not guilty.", "zh-HK": "伍先生：係，佢不承認。" } }, { "doc_id": 154, "seg_id": 64, "translation": { "en": "Court: In that case, the court will treat it as a plea of not guilty to the charge of trafficking in a dangerous drug, that is most correct, isn’t it?", "zh-HK": "官：因此嚟講嘅話，法庭就當係不承認呢一個販運毒品罪，咁就最正確喇，係咪？" } }, { "doc_id": 154, "seg_id": 65, "translation": { "en": "Mr Ng: Right, correct, yes.", "zh-HK": "伍先生：係，啱嘅，係。" } }, { "doc_id": 154, "seg_id": 66, "translation": { "en": "Court: That is a plea of not guilty, is that right?", "zh-HK": "官：即係不認罪，係咪？" } }, { "doc_id": 154, "seg_id": 67, "translation": { "en": "Accused: Right. ”", "zh-HK": "被告人：係。”" } }, { "doc_id": 154, "seg_id": 68, "translation": { "en": "When counsel for the applicant made the final submission, the trial judge once again said, “What you admit is very often referred by us as so-called for rebuttal… … the defendant admits possession, and the prosecution does not accept such confession….”", "zh-HK": "在申請人代表大律師作出結案陳述時，原審法官再一次說：“你嘅招認好多時我哋所謂叫打rebuttal… …被告係承認佢有管有，控方不接納呢一個招認…。”" } }, { "doc_id": 154, "seg_id": 69, "translation": { "en": "When the trial judge said that the applicant “admitted possession, i.e. for rebuttal” and “so-called for rebuttal”, he might possibly only refer to the applicant’s approach at that time, namely admitting possession of the drug but denying the allegation of “trafficking”. However, this court cannot ignore that previously there was a presumption in the Dangerous Drug Ordinance, namely when an accused was in possession of a dangerous drug exceeding a certain quantity, the law would presume that he was unlawful trafficking in the drug, and the reversed onus of proof would be imposed on the accused who had to prove he was not “trafficking in the drug” so that he could be acquitted of the offence of “trafficking in a dangerous drug”. This was generally described with the technical legal jargon “rebuttal”. The above presumption has been repealed because of contravention of the Hong Kong Bill of Rights Ordinance, and hence the jargon “rebuttal” and the concept developed therefrom no longer exists, and it is not appropriate to refer to it in cases of “trafficking in a dangerous drug”. In our view, it is inappropriate for the trial judge to use the jargon “rebuttal” twice in dealing with the case because the term would lead to misunderstanding and unnecessary dispute. However, we have to point out that the trial judge had in his reasons for verdict stated clearly that the applicant bore no onus of proof, and that the court would not draw any inference unfavourable to him because he had elected not to give evidence.", "zh-HK": "原審法官指出申請人“認藏有，即係rebuttal”及“所謂叫打rebuttal”，可能只是指出當時申請人的取態，即他承認藏有毒品，但反駁“販運”的指控。但本庭不能忽視之前《危險藥物條例》曾有過一些假設，即當被告人管有超過某份量/數量的毒品時，法例會假設他是非法販運該些毒品，而舉證責任會轉至被告人身上，要他成功證明他並非是“販毒”，才能獲判“販毒”無罪。該些情況一般會以“rebuttal”這技術性的法律術語來形容。上述有關假設已因為抵觸《香港人權法案條例》而被廢除，故“rebuttal”這個術語和它引發的概念已不再存在，亦不適宜在“販毒”案件中提及。本庭認為原審法官在審理案件中兩次使用“rebuttal”這術語是不適宜的，原因是該術語會造成誤會，亦會引致無謂爭拗。但本庭亦指出原審法官在其裁決理由書明確指出申請人並沒有任何舉證責任，而法庭亦不會因為他選擇不作供而作出任何對他不利的推論。" } }, { "doc_id": 154, "seg_id": 70, "translation": { "en": "We do not accept Mr Ng’s contention that the trial judge had erred in imposing the burden of proof on the applicant.", "zh-HK": "本庭不接納伍大律師的說法，指原審法官錯誤地將舉證責任放在申請人身上。" } }, { "doc_id": 154, "seg_id": 71, "translation": { "en": "We have to point out that Mr Ng also represented the applicant at the trial. Thus when the trial judge said “rebuttal”, if he thought that the judge might be wrong on the onus of proof, he should have raised it to the judge immediately instead of using such mistake in support of his application for leave to appeal.", "zh-HK": "本庭亦要指出伍大律師在原審時亦是申請人的代表大律師，當原審法官說出“rebuttal”時，如他認為原審法官在舉證問題上可能犯錯，他理應即時向原審法官指出其錯誤而不應在上訴階段才以該錯誤來支持上訴許可申請。" } }, { "doc_id": 154, "seg_id": 72, "translation": { "en": "In the video interview, the police did make a post-record of the course of the applicant’s arrest, and the applicant indicated that he understood and agreed to the content of such post-record. The police also issued a “notice to persons in police custody” to the applicant, and the applicant was clear of and understood the content of the notice.", "zh-HK": "在錄影會面時，警員有補錄拘捕申請人的過程，而申請人表示明白及同意補錄內容。警員更向申請人發給一份“被警方羈留的人士的通知”，而申請人對通知的內容是清楚和理解的。" } }, { "doc_id": 154, "seg_id": 73, "translation": { "en": "Having been cautioned once again by the police, the applicant indicated that he understood and did not need the presence of a lawyer in answering questions asked by the police. He has answered some of the questions, but for some, he indicated that he did not want to answer, and for certain questions, he replied that he did not remember or was not clear.", "zh-HK": "警員再一次警誡申請人後，申請人表示明白和無需律師陪同回答警員的發問，申請人亦有回答部分問題，但部分問題他表示不想回答，而對某些問題，申請人的回應是他不記得或不清楚。" } }, { "doc_id": 154, "seg_id": 74, "translation": { "en": "It is obvious that the applicant has exercised his right and responded to the police questions in the way that he considered appropriate. The applicant’s right to remain silent has not been infringed. The ground of appeal suggesting that the applicant’s right to remain silent has been infringed is not accepted.", "zh-HK": "申請人明顯已行使其權利，就警員的提問作出他認為適當的回應。申請人的緘默權並沒有受到侵犯。本庭不接納申請人的緘默權有遭侵犯的上訴理由。" } }, { "doc_id": 154, "seg_id": 75, "translation": { "en": "The trial judge rejected the applicant’s explanation that the drug and the plastic bags had in fact been found in his room. In his reasons for verdict, he stated that “even if the drug and the empty plastic bags were found inside the defendant’s room, the court could still infer that the drug in question might possibly be used for the purpose of trafficking”. The trial judge made an assumption which was not necessary and should not have been made. However, it was not based on such an assumption that the trial judge convicted the applicant and the assumption had no bearing on whether the conviction was safe or satisfactory. Therefore, the ground of appeal put forward by Mr Ng in this regard is not accepted.", "zh-HK": "原審法官拒絕接納申請人的說法，指毒品和膠袋是在他的房間內找到。原審法官在其裁決理由書中指“就算毒品和空膠袋真的在被告房間找到，法庭亦可以推論有關的毒品可能可以用作販運的用途”。原審法官只是作出一些假設。原審法官無需及不應作出該些假設，但原審法官並非根據假設而裁定申請人罪名成立，而該些假設亦不影響定罪的穩妥性。因此本庭亦不接受伍大律師就上述事項提出的上訴理由。" } }, { "doc_id": 154, "seg_id": 76, "translation": { "en": "However, the trial judge has erred in dealing with the applicant’s confession. If there was no such confession and the applicant’s claim of the drug having been searched out from his home was or might be true, then the finding that the applicant “trafficked in the drug” was not necessarily the only reasonable inference to be drawn.", "zh-HK": "但由於原審法官在處理申請人的招認時犯錯，假若沒有有關招認，而申請人聲稱毒品是在他家中搜出的說法是真的或可能是真的，作出申請人“販毒”的裁決不一定是唯一合理的推論。" } }, { "doc_id": 154, "seg_id": 77, "translation": { "en": "In our view, in the above circumstances, the verdict of finding the applicant guilty of “trafficking in a dangerous drug” was unsafe and unsatisfactory. Therefore we grant the applicant’s application for leave to appeal against conviction and treat it as the appeal proper. The appeal is allowed. Having regard to the background and the evidence in the case, we find that a retrial is necessary. Therefore, the applicant’s conviction is quashed, and we order the case to be remitted to the District Court for a retrial on the same charge before another judge.", "zh-HK": "本庭認為在上述情況下，裁定申請人“販毒”罪罪名成立的決定是不穩妥的。因此，本庭批准申請人就定罪提出的上訴許可申請，並視其申請為正式上訴。本庭裁定申請人上訴得直。考慮到案件的背景及證據後，本庭認為案件需重審，因此本庭撤銷了針對申請人的定罪，並下令將案件發還區域法院就同一控罪由另一法官重審。" } }, { "doc_id": 154, "seg_id": 78, "translation": { "en": "Having listened to the submissions from both sides, we order that the prosecution do pay the applicant costs of the application for leave to appeal.", "zh-HK": "經聆聽過雙方陳述後，本庭下令控方支付申請人的上訴許可申請訟費。" } }, { "doc_id": 154, "seg_id": 79, "translation": { "en": "Ken Ng, instructed by Messrs Jesse HY Kwok & Co, for the Applicant.", "zh-HK": "答辯人：由律政司高級檢控官雷芷茗代表。" } }, { "doc_id": 154, "seg_id": 80, "translation": { "en": "Ira Lui, Senior Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "申請人：由郭匡義律師行轉聘大律師伍健民代表。" } }, { "doc_id": 155, "seg_id": 1, "translation": { "en": "Hon Cheung J.A. (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 155, "seg_id": 2, "translation": { "en": "The two applicants were each indicted separately of one count of rape, contrary to section 118(1) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong. The particulars of offence of the two charges stated that on 26 August 2007 each of them raped Miss X in an hourly hotel in Hong Kong.", "zh-HK": "兩名申請人分別被控一項「強姦」罪，違反《刑事罪行條例》(香港法例第200章)第118(1) 條。兩項控罪的控罪詳情指他們在2007年8月26日在香港的一間時鐘酒店內分別強姦X小姐。" } }, { "doc_id": 155, "seg_id": 3, "translation": { "en": "The case was heard before Deputy High Court Judge D. Pang (as he then was) and a jury. The 1st applicant and the 2nd applicant were found guilty by the jury by 6 to 1 and 5 to 2 respectively, while another accused of this case, namely the 3rd accused, was found not guilty by the jury by 6 to 1. The two applicants sought leave to appeal against their convictions. After hearing, we granted the application and treating the application as the appeal proper, we allowed the appeal and quashed the convictions.", "zh-HK": "案件經高等法院暫委法官彭偉昌(當時官階)會同陪審團審理後，第一和第二申請人分別被陪審團以6比1和5比2比數裁定罪名成立；同案的另外一名被告人(即第三被告人)被陪審團以6 比1 比數裁定罪名不成立。兩名申請人就定罪提出上訴許可申請。本庭經聆訊後批准申請，視申請為正式上訴，批准上訴及撤銷定罪。" } }, { "doc_id": 155, "seg_id": 4, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 155, "seg_id": 5, "translation": { "en": "The victim Miss X was in her 20’s and single. Sometime between 1 and 2 a.m. on 26 August 2007, Miss X went to a nightclub to join a birthday party. The people in this party included the two applicants and the 3rd accused. The 1st applicant was a schoolmate of Miss X. Miss X said that when she was in the nightclub, she had at different times drunk two alcoholic drinks she made. The first drink was made up of 5 parts Vodka to one part orange juice, while the second drink consisted of half Vodka and half orange juice. She drank half of each of the drinks. In the course of the party, she danced with the 2nd applicant and the 3rd accused. Not long afterwards, she felt sleepy and she fell asleep, resting her head and the upper part of her body on a table. She had wakened up twice — the first time because she wanted to vomit; the second time was that a friend nicknamed Siu Ming was about to leave the nightclub and woke her up and asked her whether she would leave with him, but she remained there and continued to sleep. Later, somebody woke her up and told her to leave the nightclub. At that time she felt weak all over and her faculty of judgment did not function. She left the nightclub with that person. When Miss X viewed the CCTV videotape of the building where the nightclub was situated, she recognized that the person she followed when leaving the nightclub was the 3 rd accused. Subsequently she, the two applicants and the 3 rd accused went by car to somewhere she did not know. Upon arrival at that place, she just heard someone say, “No vacant place.” After that, they went somewhere else. When they were taking a lift, someone touched her breasts. She was not in a clear state of mind at that time, so she did not know who that person was. Later, Miss X saw a fat woman, who said, “So many people, are you going to have a party?” Someone answered, “We’ll leave soon.”", "zh-HK": "受害人X小姐是一名二十多歲的未婚女子。2007年8月26日早上一時許，X小姐到一間夜總會參加一個生日派對。參加派對的人士包括兩名申請人及第三被告人。第一申請人是X小姐的同學。X小姐說她在夜總會內先後飲過兩杯由她自己調校的酒精飲品，第一杯飲品有5 份的伏特加酒和 1份的橙汁，另一杯的伏特加酒和橙汁各有一半分量，每杯飲品她都飲了一半。其間她與第二申請人及第三被告人跳舞，不久，她覺得睏倦，於是伏在枱上睡覺。她曾醒過兩次，一次是要嘔吐，另外一次是一名花名叫「小明」的朋友在離開夜總會前喚醒她問她會否與他一同離開，但她留下繼續睡覺。後來有人喚醒她及叫她離開夜總會，她當時全身乏力和沒有判斷能力，她跟隨着那人離開夜總會。在翻看當晚夜總會所在的大廈的閉路電視錄影帶後，X小姐認出她當時跟隨着的那個人就是第三被告人。之後，她與兩名申請人和第三被告人乘車往一處她不知道是哪裡的地方，在到達該地方後她只是聽到有人說「冇位」。之後，她們又轉往另一個地方，在乘電梯時有人撫摸她的胸部，她當時神智不清，所以不知道那人是誰。之後，X小姐看見一位肥胖的女士，她說：「咁多人，開P呀？」接着，有人回答她：「好快走。」" } }, { "doc_id": 155, "seg_id": 6, "translation": { "en": "After that, Miss X entered the room. She was drunk and felt sleepy, and she lay on her front on a bed. Shortly afterwards, she felt that she became totally naked and that she was having sexual intercourse with someone. She described that at that juncture her mind was blurred and she could not use her senses. She was not willing to have sexual intercourse but was not able to express what was in her mind. In the course of the sexual intercourse, she did not feel good or upset. The only feeling she got was tiredness and that she was under the control and manipulation of somebody. She was lying on her front on the bed throughout, therefore she did not know how many persons had intercourse with her. She heard the 1st applicant say, “Brother-in-law, [you] should have no complaint about me.” She also saw the 2nd applicant video-recording the process of the intercourse with a mobile phone, and heard someone asking other persons whether they wanted the video-recording. She remembered that someone lifted up her head and forced her to do oral sex to him. Subsequently, someone put clothes back on her body for her. The 3rd accused put his arm round her waist and the 1st applicant said, “She is very tired, let her have a rest.” Following that, someone asked, “Have another go?” and the 3rd accused said, “No, thanks.”", "zh-HK": "接着，X小姐進入房間，她因喝醉酒和感到睏倦就俯卧在床上。不久，她感覺到自己全身赤裸，並在與人發生性行為。她指她當時神智模糊和沒有意識，她並不願意與人發生性行為，但當時無法表達她的意願，在性交過程中她沒有覺得開心或不開心，只是覺得很疲倦及被人操控着，她一直都是俯卧在床上，所以不知道曾與多少人性交。她曾聽到第一申請人說：「襟兄弟我都算係咁喇。」她又看到第二申請人拿着手提電話拍錄性交過程，她還聽到有人問其他人想不想要那些錄影片段。她記得有人提起她的頭，迫她替他口交。事後有人替她穿上衣服，第三被告人用手攬着她的腰，第一申請人就說：「佢都好攰喇，畀佢唞下喇。」接着，有人問：「又再執番劑呀？」第三被告人就說：「唔喇。」" } }, { "doc_id": 155, "seg_id": 7, "translation": { "en": "Then Miss X fell asleep. She slept until she was wakened up by someone. At that time the 1st applicant had gone. When she left that place with the 2nd applicant and the 3rd accused, she became aware, and it was only then that she was aware that the place was an hourly hotel. Then Miss X parted with them and took transport to go home alone. She said she felt that her “head was swimming” at that time. She only knew that she had been forced to have sexual intercourse with some people, but she dared not believe that it was true. It was sometime between 8 a.m. and 9 a.m. when Miss X returned home. She went to bed at once. She had thought of making a report to the police but she did not do that because she was afraid that her family would learn of the matter.", "zh-HK": "之後，X小姐睡着，直至有人喚醒她，這時第一申請人已經不在那處。當她與第二申請人及第三被告人離開那個地方時，才知道那裡是一間時鐘酒店。之後，X小姐與他們分手，獨自乘車回家，她說她當時覺得「瘟瘟沌沌」，只知道自己曾被迫與人發生性行為，但又不敢相信這個事實。X小姐回到住所時是早上八時許，她立即睡覺。她曾想過報警，但因害怕家人知道事件而沒有這樣做。" } }, { "doc_id": 155, "seg_id": 8, "translation": { "en": "When she woke up, Miss X telephoned her ex-boyfriend Mr. Wong and complained to him about what happened. Miss X told him:", "zh-HK": "睡醒後，X小姐打電話給她的舊男朋友黃先生，將事情告訴他，X小姐對他說：" } }, { "doc_id": 155, "seg_id": 9, "translation": { "en": "“I was taken by the 1st accused and two men whom I had just came to know to an hourly hotel. At first, we got to some where but I don’t know what place it was. There was no vacant place. Then we went to another place. There, I had sexual intercourse with some people but I don’t know who they were. I was raped. I dare not believe it’s true. I saw that someone appeared to have video-recorded it. I am very afraid. I don’t know whether I should tell my family about it. I don’t know whether they had worn any condoms.”", "zh-HK": "「我畀第一被告同兩位初相識嘅男人帶咗去時鐘酒店，係初初去到一個唔知咩嘢地方，冇位，先去第二度嘅。喺嗰度我唔知同邊個發生咗性行為，我畀人強姦，我唔敢相信呢件事。我見到好似畀人錄低咗，我好驚，唔知話唔話畀屋企人知。我唔知佢哋有冇戴安全套。」" } }, { "doc_id": 155, "seg_id": 10, "translation": { "en": "Mr. Wong asked Miss X why she did not report the matter to the police, but Miss X did not answer this question; she only asked Mr. Wong to accompany her to buy contraceptive pills. The two of them went together to buy contraceptive pills. Then they went to a food establishment. Miss X took some contraceptive pills and they talked with each other. Miss X cried bitterly. Mr. Wong again tried to persuade her to make a report to the police, but Miss X was afraid that her parents would learn of the matter and she refused to report the matter to the police.", "zh-HK": "黃先生問X小姐為何不報警，X小姐沒有回答他的問題，只是要求黃先生陪同她去購買避孕丸。兩人一同購買了避孕藥後前往一間食店，X小姐服用避孕丸後，雙方傾談，X小姐哭得很厲害，黃先生再次勸她報警，但X小姐怕父母知道事情而不肯報警。" } }, { "doc_id": 155, "seg_id": 11, "translation": { "en": "Miss X returned home. She worried that the video-recording of the sexual intercourse would be uploaded onto the internet, so she sent a text message to the 1st applicant, asking him to keep the video-recording secret and “I would rather you delete it”. The 1st applicant replied to her by text message that he would not make the matter public.", "zh-HK": "回家後，X小姐擔心性交的錄影片段會被人放上互聯網，於是向第一申請人發放了一個短訊，要求他將該錄影片段保密及「或者我寧願你刪除它」，第一申請人以短訊回覆她他不會將事件張揚開去。" } }, { "doc_id": 155, "seg_id": 12, "translation": { "en": "Miss X reported the matter to the police on 29 August 2008. The police asked Miss X to assist them in the investigation. As instructed by the police, she telephoned the 1st applicant, telling him that she worried very much about this matter. The 1st applicant then sent a text message to her, telling her not to worry.", "zh-HK": "X小姐於2008年8月29日報警，警方要求X小姐協助調查，她根據警方的指示打電話給第一申請人說她很擔心這件事。第一申請人之後發放了一個短訊給她，叫她不用擔心。" } }, { "doc_id": 155, "seg_id": 13, "translation": { "en": "Miss X said that on that night in the nightclub, half an hour after she drank the first glass of alcoholic drink she began to lose her sobriety. She still remembered that some people talked to her and danced with her but she had no recollection of details. According to her own description, at the time she left the nightclub she was “dead drunk” and could not maintain a stable standing position.", "zh-HK": "X小姐說當晚她在夜總會喝了第一杯酒之後的半小時就開始不清醒，但她記得有人與她談話、跳舞，但對其他細節就沒有印象。她形容她離開夜總會時是「醉到成劈泥咁」，不能站穩。" } }, { "doc_id": 155, "seg_id": 14, "translation": { "en": "When cross-examined, Miss X admitted that in her telephone conversation with Mr. Wong she did not say that she had been raped; only when she met Mr. Wong did she tell him that she had been raped. Miss X agreed that she had a lively, cheerful and outgoing personality. She did not mind talking with people about matters concerning sex. She described herself as a person who had social experience, knew how to protect herself and would not let herself be taken advantage of by other people.", "zh-HK": "X小姐在接受盤問時承認她與黃先生在電話交談時沒有說過被人強姦，只是在與黃先生見面時才對他說她被人強姦。X 小姐承認自己是一個性格開朗、快樂及開放的人，她不介意與別人談論男女的性事。她說她是一個有社會經驗、懂得保護自己及不會被人欺負的女子。" } }, { "doc_id": 155, "seg_id": 15, "translation": { "en": "Evidence of PW2 Mr. Wong", "zh-HK": "控方第二證人黃先生的證供" } }, { "doc_id": 155, "seg_id": 16, "translation": { "en": "The evidence of Mr. Wong was that Miss X telephoned him on that day. She asked him to accompany her to buy morning-after pills. He asked Miss X why she had to do that, but she refused to tell him the reason. Mr. Wong knew that she had gone out to have alcoholic drinks on the previous night, so he asked her whether anything had gone wrong after she had the drinks. Miss X admitted that she had sexual intercourse with someone and that person was the 1st applicant, but she was unwilling to disclose the details. Mr. Wong sensed something suspicious and he asked Miss X whether she was willing to have sexual intercourse with the 1st applicant, but Miss X did not answer. Relying on his intuition, Mr. Wong pressed on and asked her whether she had sexual intercourse with more than one person. Miss X said, “3 persons.” Mr. Wong felt that something serious had happened, so he asked Miss X to come out to see him. After they bought the contraceptive pills, they talked about this matter again. Miss X did not want to go into details. Mr. Wong asked her how come she had sexual intercourse with 3 people. Miss X did not answer. She just kept on crying. After repeatedly asked by Mr. Wong about this, she said that she was not willing to have sexual intercourse with those people. Mr. Wong told her that it was rape. Miss X just bowed her head and did not utter a word. Then Mr. Wong tried to persuade her to report the matter to the police. Miss X became agitated and said, “No way, no, I will be severely scolded by my family. If you really tell the police about this, I will die before your eyes!”", "zh-HK": "黃先生出庭作證說他當日接到X小姐的電話，要求陪她去購買事後避孕丸，他問X小姐為甚麼這樣做，但X小姐不肯透露原因。由於黃先生知道她於前一晚曾出外喝酒，所以問她是否酒後出事。X小姐承認她與人發生過性行為，那人就是第一申請人，但她不願意透露詳情。黃先生覺得事有蹺蹊就問X小姐她是否願意與第一申請人性交，但X小姐沒有回答他。黃先生憑直覺繼續追問她是不是與多過一個人性交，X小姐說：「三個人」。黃先生覺得事態嚴重，於是約X小姐出外見面，兩人在購買避孕藥後再次談及事件，但X小姐不願多談。黃先生問她何以會與三個人發生性行為，X小姐沒有回答，只是在哭泣。在黃先生追問下，她說她是不願意與那些人性交的。黃先生告訴她這情況即是強姦，X小姐只是低頭不語。後來，黃先生勸她報警。X小姐情緒激動地說：「唔可以，唔得，會畀屋企人閙死，如果你真係報警，我就死畀你睇。」" } }, { "doc_id": 155, "seg_id": 17, "translation": { "en": "Mr. Wong stated that Miss X had also told him that when she was having sexual intercourse, someone video-recorded the process. Mr. Wong said that Miss X at that time was depressed, but when he talked about reporting the matter to the police, she became agitated. In the course of this conversation which lasted for 10 minutes, she sometimes did not say anything and sometimes cried. Mr. Wong said that he, on his own initiative, used the word “rape”.", "zh-HK": "黃先生說X小姐亦告訴他她在與人性交時被人錄影。黃先生說當時X小姐情緒低落，但當他提到要報警時，她便變得激動。在十分鐘的對話中，她間中不作聲，間中哭泣。黃先生說是他主動說「強姦」這兩個字。" } }, { "doc_id": 155, "seg_id": 18, "translation": { "en": "PW3", "zh-HK": "控方第三證人" } }, { "doc_id": 155, "seg_id": 19, "translation": { "en": "PW3 Mr. Fung has a nickname called “Siu Ming”. He had known Miss X for several months. He invited Miss X to come on that night to the nightclub to have entertainment. After Miss X arrived there, she herself made up alcoholic drinks, drank the drinks and then danced. At that time Miss X was in high spirits. She danced with many people and when she danced, her arms were round her partners’ waists or on their shoulders, and her partners did the same to her. At that time she was sober. At about 3:15 a.m., Mr. Fung was going to leave the nightclub and he asked Miss X whether she would leave with him. Miss X said that she had left her handbag with a friend, so she would not leave with him. According to Mr. Fung, Miss X at that time had just finished dancing and appeared to be a bit tired, but was still very much sober. Mr. Fung left the nightclub first. At 1 p.m. on the same day, Mr. Fung telephoned Miss X and asked her at what time she finished enjoying herself. Miss X told him that she had just left the nightclub a moment ago. Mr. Fung asked her, “You had been enjoying yourself for such a long time! With whom did you have the enjoyment?” Miss X said, “Do you think there’s only one?” Mr. Fung said, “Wow, did your enjoyment go to that extent?” Then Miss X said, “There were 3.” Mr. Fung went on, “Then you must be very happy?” Miss X answered, “Damn it, now I have to buy medicine for my use.” Miss X told Mr. Fung that she had been video-recorded and she complained in a very unhappy tone that the person who did the video-recording was the 2nd applicant.", "zh-HK": "控方第三證人馮先生的花名叫「小明」。他認識X小姐約數月，他邀請X小姐當晚到夜總會消遣。到達後，X小姐自己調酒飲用，然後跳舞。當時X小姐情緒高漲，與多人跳舞，跳舞時與舞伴攬腰、搭膊頭，當時她是清醒的。到了早上約三時十五分，馮先生打算離開夜總會就問X小姐會不會與他一起離開，X小姐說她的手袋在另外一個朋友那裡，所以不跟他一起離開。馮先生說X小姐當時剛跳完舞，顯得有點疲倦，但還很清醒。馮先生就先行離開夜總會。當日下午一時馮先生打電話給X小姐，問她玩到何時，X小姐告訴他她剛剛離開夜總會。馮先生問：「玩到咁早？同邊個呀？」X小姐說：「乜你覺得一個啫咩？」馮先生說：「嘩，玩到咁大呀？」跟着X小姐就說：「三個呀。」馮先生再說：「咁你咪好開心？」X小姐就說：「仆街喇，而家要買藥食呀。」X小姐告訴馮先生她給人錄影，並以極不滿的語氣說錄影她的人就是第二申請人。" } }, { "doc_id": 155, "seg_id": 20, "translation": { "en": "Mr. Fung described Miss X as a person having an emotional character. Sometimes she was in low spirits but at other times she could be “wild with joy”. Mr. Fung had once heard Miss X talk about the sexual ability of a boyfriend of hers who was a fireman.", "zh-HK": "馮先生說X小姐是個情緒化的人，有時情緒低落，有時又「大顛大肺」。馮先生曾經聽過X小姐談及她一名任職消防員的男友的性能力。" } }, { "doc_id": 155, "seg_id": 21, "translation": { "en": "1st Applicant’s record of interview with the police", "zh-HK": "第一申請人的警方會面記錄" } }, { "doc_id": 155, "seg_id": 22, "translation": { "en": "The 1st applicant stated that on that evening he invited some friends, including Miss X, to join a party. At that time, they talked, drank alcohol and danced. At about 3 to 4 a.m., Miss X had consumed a lot of alcohol by then and was in high spirits. She danced with and kissed the three of them (namely the 1st applicant, the 2nd applicant and the 3rd accused). She also danced with other men with her arms round the bodies of those men. At about 4 to 5 a.m., Miss X was sitting beside the 3rd accused, embracing him and kissing him. Following that, she said she wanted to leave the nightclub with the 3 of them together. In the meantime, she had body contacts with these 3 people. They took a taxi together to Causeway Bay to look for a place to “sleep”. They alighted at Pak Sha Road. Miss X embraced and kissed each of them in turn. They went to everywhere to look for a place to stay overnight. They had been to two places. In a lift, he caressed the breasts of Miss X and she responded by making sweet voices in a coquettish manner. According to the 1st applicant, after they entered a room in an hourly hotel, Miss X first kissed the 3rd accused and had sexual intercourse with him. After that, she did oral sex to him (i.e. the 1st applicant) and the 2nd applicant in turn, and then had sexual intercourse with them. In the course of the sexual intercourse, all 3 of them had put on condoms and had video-recorded the intercourse process with mobile phones. In the course of doing all these things, they had talked with each other; Miss X, however, had just spoken a few words.", "zh-HK": "第一申請人說案發當晚他邀約了包括X小姐在內的一群朋友參加一個派對，當時大家傾談、飲酒和跳舞。到了凌晨約三、四點，X小姐喝了很多酒，興奮地與他們三人(即第一、第二申請人和第三被告人)跳舞、接吻，還攬着其他男子跳舞。到了約四、五時，X小姐坐在第三被告人身旁攬着他接吻，接着說要與他們三人一起離開夜總會。其間她與三人有身體接觸，他們一起乘的士往銅鑼灣找地方「睡覺」。他們在白沙道下車，X小姐輪流攬着他們接吻，他們四處尋找地方度宿。他們曾到過兩個地點。他在電梯內撫摸X小姐的胸部，她的反應是發出嬌嗲聲。第一申請人說在進入時鐘酒店的房間後，X小姐先與第三被告人接吻和性交，然後先後分別替他(即第一申請人)和第二申請人口交，然後再與他們性交。在性交過程中，他們三人都有戴上避孕套，亦有拿手提電話拍錄性交過程。在整個過程中大家都有交談，但X小姐只說過一、兩句話。" } }, { "doc_id": 155, "seg_id": 23, "translation": { "en": "When it was over, the 1st applicant left the hourly hotel first. Later, he met the 2nd applicant and the 3rd accused and they discussed how they should deal with the video-recording stored in the mobile phones. The 1st applicant said that he had deleted the video-recording before he returned home. He could not remember who suggested that all of them sleep together, but he was sure that everyone agreed to do that. No one suggested sexual intercourse beforehand, but by that time all the 3 of them had a lot of body contacts with Miss X, such as caressing and kissing each other, therefore everyone understood that there was going to be contacts that would go a step further. The 1st applicant maintained that Miss X was willing to have sexual intercourse with the 3 of them together. She enjoyed having sex with them. In the course of doing so she groaned joyfully and her body moved in concert with the movements of her partners.", "zh-HK": "之後，第一申請人先行離開時鐘酒店，他之後與第二申請人及第三被告人會面，商談如何處理手提電話內的短片，第一申請人說他在返家前已經將短片刪除，他記不起是誰提議大家一起睡覺，但他肯定是所有人都同意這樣做，雖然之前大家沒有提過會進行性行為，但由於三人當時與X小姐有很多如互相撫摸、接吻等的身體接觸，大家都意會到將會有進一步的接觸。第一申請人說X小姐是願意與他們三個人一起性交的，她享受與他們性交，並在過程中發出愉悅的呻吟聲，還以身體配合對方的動作。" } }, { "doc_id": 155, "seg_id": 24, "translation": { "en": "After the 3 persons had sex with Miss X, Miss X was lying on bed sleeping, so they put her clothes back onto her body for her, and subsequently they left the hotel together. When the police officer asked the 1st applicant whether Miss X was sleeping or conscious at that time, the 1st applicant answered, “It appeared to me that she was exhausted, because she had finished having sex and before that she had drunk alcohol, that could increase the degree of exhaustion she felt to a level higher than what she experienced at normal times.”", "zh-HK": "他們三人與X小姐進行過性交後，由於X小姐在床上睡着覺，所以他們替她穿上衣服，之後一起離開酒店。當警員問第一申請人X小姐當時是睡着或是清醒，第一申請人答道：「我覺得佢係攰，因為她係發生完性行為，同埋佢亦都之前會飲咗酒，亦都會令佢可能係疲勞的程度比平常更加高。」" } }, { "doc_id": 155, "seg_id": 25, "translation": { "en": "2nd applicant’s record of interview with the police", "zh-HK": "第二申請人的警方會面記錄" } }, { "doc_id": 155, "seg_id": 26, "translation": { "en": "The 2nd applicant’s account was that he and the 3rd accused arrived at the nightclub first. Then the 1st applicant introduced them to Miss X. In the nightclub, they drank alcohol, talked and danced. In the course of doing these things, Miss X, on her own initiative, praised the 2nd applicant and the 3rd accused, saying that among all the people in the whole nightclub, they were the most handsome men. When Miss X danced with him, she embraced him; and she went to everywhere in the nightclub, bringing him along with her. When Miss X was dancing with other men, she called him to come to her to embrace her. The 2nd applicant heard Miss X say to the 3rd accused, “There are many young men tonight. Remember, don’t let me go away with other men.”", "zh-HK": "第二申請人說當時他與第三被告人先到達夜總會，之後第一申請人介紹他們給X小姐認識。在夜總會內，大家飲酒、談話、跳舞。其間，X小姐主動稱讚第二申請人及第三被告人是全場最英俊的男士，X小姐與他跳舞時擁抱他，又帶着他在夜總會到處走，其間當X小姐與其他男子跳舞時叫他走過去擁抱她。第二申請人聽到X小姐對第三被告人說：「今晚好多男仔，你記住唔好畀我跟其他男人走呀。」" } }, { "doc_id": 155, "seg_id": 27, "translation": { "en": "Sometime between 3 and 4 a.m., Miss X sat beside him and pressed against his thigh. Even when he went to toilet, she went with him.", "zh-HK": "凌晨三時許，X小姐坐在他的身旁及緊貼他的大腿，就算他要上廁所，她都跟他一起去。" } }, { "doc_id": 155, "seg_id": 28, "translation": { "en": "At 4 a.m., the 3 people decided to leave the nightclub. The 2nd applicant said to Miss X, “Let’s go together, go to Causeway Bay to rent a room.” Miss X said, “Good.” Then they took a taxi at Central District and got to Pak Sha Road in Causeway Bay. They first went to a convenience store and bought beers and condoms. When they entered a room in the second hotel, they drank beer first, then the 3rd accused began to kiss and caress Miss X. Following that, the 1st and 2nd applicant jointly took off the clothes on the lower body of Miss X. At this moment, the 3rd defendant let Miss X do oral sex to him, then they had sexual intercourse. When the 3rd defendant was having sexual intercourse with Miss X, the 1st applicant and the 2nd applicant let Miss X do oral sex to them in turn. After the 3rd defendant had sexual intercourse with Miss X, the 2nd applicant and the 1st applicant had intercourse with her separately. However, the 1st applicant could not have a full erection and finally he masturbated himself. All 3 of them video-recorded the whole process of the intercourse with telephones. Throughout the process of all these things, Miss X not only did not indicate that she was not willing to have sexual intercourse nor did she put up any resistance, she even continuously moaned and groaned.", "zh-HK": "到了凌晨四時，三人決定離開夜總會，第二申請人對X小姐說：「我哋一齊走，落銅鑼灣開房囉」，X小姐說：「好。」之後，他們從中環乘的士到銅鑼灣白沙道，先到便利店購買啤酒及避孕套。到達第二間酒店的房間後，大家先飲啤酒，然後第三被告人開始吻X小姐及撫摸她。接着，第一及第二申請人聯手除掉X小姐下身的衣服，此時第三被告人讓X小姐替他口交，然後性交。當第三被告人與X小姐性交期間，第一及第二申請人亦依次序讓X小姐替他們口交。當第三被告人和X小姐性交後，第二申請人及第一申請人分別與她性交，但第一申請人因不能完全勃起，最後自瀆。他們三人都拿電話錄影了整個性交過程，X小姐在整個過程中不但沒有表示過不願意性交或作出反抗，她還不停地呻吟。" } }, { "doc_id": 155, "seg_id": 29, "translation": { "en": "At 7 a.m., they left the hourly hotel together.", "zh-HK": "早上七時，他們一同離開時鐘酒店。" } }, { "doc_id": 155, "seg_id": 30, "translation": { "en": "The 2nd applicant said that sometime between 2 and 3 a.m., the 3 of them and Miss X were a bit tipsy. When Miss X danced, she bumped against other people. When she was leaving the nightclub, she could only stagger along and needed to be helped. The 2nd applicant said that when they were in the vehicle, Miss X kissed the 3rd accused. When they were outside the convenience store, Miss X, the 1st applicant and the 3rd accused embraced together. In the room of the hotel, Miss X did not say anything, she just occasionally answered their questions. When the police constable asked the 2nd applicant whether Miss X needed to be helped in order to walk, he answered, “I was told to support, to help her.” When the police constable asked the 2nd applicant whether Miss X was sleeping or whether she was conscious after she entered the room of the hourly hotel and when she was lying on bed, his answer was “She was drunk, but I am not sure whether her eyes were opened.” The 2nd applicant went on to say that when they took off Miss X’s pants, she was conscious enough to cooperate with them so that her pants could be taken off, and she was able to move her head to do oral sex to them. When the 3rd accused had sexual intercourse with her, Miss X opened her legs and kept on moaning and groaning. When the 1st applicant ejaculated on her face, she was aware of that and asked one of them to wipe her face for her. He said that Miss X had never refused to have sex with them or done anything which signalled her resistance.", "zh-HK": "第二申請人說在凌晨兩時許，他們三人與X小姐都有些醉意。X小姐跳舞時碰撞其他人，她在離開夜總會時東歪西倒，需要別人攙扶行走。第二申請人說在乘車期間，X小姐與第三被告人接吻，在便利店門外更加與第一申請人及第三被告人擁抱在一起。在酒店房間內，X小姐沒有說話，只是間中回答他們的問題。當警員問第二申請人X小姐是否需要人攙扶行走時，他回答說：「叫我扶住、着咁囉」。當警員問第二申請人X小姐到達時鐘酒店房間後躺在床上時是睡着還是清醒？他回答說：「醉咗囉，但係有冇掰大眼我就唔肯定」。第二申請人又說，當他們替X小姐脫下褲子時，她懂得配合他們把褲子褪下及懂得移動頭部替他們口交。當第三被告人與她性交時，X小姐張開腳及不斷呻吟。當第一申請人在她的面上射精時，她懂得叫人替她抹面。他說X小姐絕無拒絕與他們性交或者作出任何反抗動作。" } }, { "doc_id": 155, "seg_id": 31, "translation": { "en": "Other evidence", "zh-HK": "其他證據" } }, { "doc_id": 155, "seg_id": 32, "translation": { "en": "The evidence produced by the prosecution included video recording footage recorded by the CCTV system of the building where the nightclub was situated, which showed how these 4 people behaved when they left the nightclub, and part of the video-recording of the sexual intercourse from the mobile phones of the 3 defendants which had been deleted but was restored by the police.", "zh-HK": "控方提供的證據包括夜總會所在的大廈的閉路電視錄影片段中四人離開夜總會的情況和警方還原了三名被告人的手提電話內被刪除的部分性交錄影片段。" } }, { "doc_id": 155, "seg_id": 33, "translation": { "en": "Evidence of the 1st applicant", "zh-HK": "第一申請人的證供" } }, { "doc_id": 155, "seg_id": 34, "translation": { "en": "The 1st applicant elected to give evidence. He was a former schoolmate of Miss X. The two of them met again in April or May 2007 at [their] working place. Subsequently, they and other friends went out together to have entertainment. On that night in the nightclub, Miss X, on her own initiative, invited men to dance with her and she embraced the 3 of them. Finally, the 4 of them decided to leave the nightclub. At that juncture, someone said, “Let’s go together to a hotel.” Miss X then made a phone call in order to look for her mobile phone. When they were standing outside the entrance to the building where the nightclub was situated, they asked Miss X whether she wanted to go to a hotel. At that time she did not need help and she got into the taxi herself. In the taxi, Miss X kissed the 3rd defendant and held the 1st applicant’s hand in her hand. Upon arrival at the hourly hotel, they got off the taxi and walked for 15 to 20 minutes. Miss X was full of life and she behaved intimately towards the 2 applicants.", "zh-HK": "第一申請人選擇作供自辯。他與X小姐是舊同學，兩人在2007年4、5月間在工作地點重逢。之後他們曾與其他朋友一起出外消遣。當晚在夜總會內，X小姐主動邀請男士與她跳舞及擁抱他們三人。最後，他們四人決定離開夜總會，當時有人說：「不如一齊去搵酒店」，X小姐就打電話找自己的手提電話。他們站在夜總會的大廈門口時曾問過X小姐想不想去酒店，她當時不需人攙扶，自行登上的士。在車上，X小姐吻第三被告人及握着第一申請人的手。在抵達時鐘酒店時，他們下車及步行了十五至二十分鐘，X小姐的精神很好，並與兩名申請人親熱。" } }, { "doc_id": 155, "seg_id": 35, "translation": { "en": "As to what happened afterwards, the 1st applicant repeated what was recorded in his record of interview with the police. The 1st applicant said that on 1 September 2007 Miss X had sent, through the internet, “several actions to cheer him up”, but he did not understand what she meant. On 26 August 2007, Miss X did not tell him that he had raped her. The 1st applicant said that the person who suggested that they go to Causeway Bay to look for a hotel was the 2nd applicant. In the nightclub, Miss X was in high spirits and was a bit tipsy. At the time they left the nightclub, Miss X and the 3rd accused embraced each other and talked to each other. It appeared to him that Miss X was sober. He disagreed that Miss X needed to be helped by the 3rd accused in order to walk. He said the 3rd accused just put his arm round Miss X’s waist, but at that time the 3rd accused carried Miss X’s handbag for her. They had asked Miss X whether she wanted to go to Causeway Bay to “rent a room” in a hotel. He was sure that Miss X heard the 3rd accused reminding the 2nd applicant to buy condoms, and she should be able to see the 2nd applicant holding condoms in his hand. The 1st applicant claimed that when Miss X was in the hotel room, she was conscious and she did oral sex to him. He admitted that in the hotel he did say, “Brother-in-law, [you] should have no complaint about me.” He explained that it was only a joke, without any special meaning.", "zh-HK": "之後，第一申請人重複他在與警方會面記錄中所述的情況。第一申請人說X小姐在2007年9月1 日曾在互聯網發了「幾個action 嚟cheer 佢」，令他感到莫名其妙。在2007年8月26日X小姐沒有對他說他強姦她。第一申請人說當晚提議到銅鑼灣找酒店的人是第二申請人。在夜總會內，X小姐心情興奮及有些醉意。當他們離開夜總會時X小姐與第三被告人擁抱在一起交談，他覺得X小姐是清醒的。他否認X小姐需要第三被告人攙扶行走。他指第三被告人只是攬着X小姐的腰，但當時第三被告人替X小姐提手袋。他們曾經問過X小姐想不想到銅鑼灣酒店「開房」。他肯定X小姐聽到第三被告人提醒第二申請人要購買避孕套，她亦應該看到第二申請人手持避孕套。第一申請人指X小姐在酒店內是清醒的，她還替他口交。他承認在酒店內他說過「襟兄弟都算咁喇」這句話，但他解釋他只是說笑，沒有特別的意思。" } }, { "doc_id": 155, "seg_id": 36, "translation": { "en": "He said that Miss X was not drunk after the sexual intercourse. He only handed clothes to her and she put on the clothes herself.", "zh-HK": "他指X小姐在性交之後沒有醉，他只是拿衣服給她，她是自己穿上衣服的。" } }, { "doc_id": 155, "seg_id": 37, "translation": { "en": "Defence witness", "zh-HK": "辯方證人" } }, { "doc_id": 155, "seg_id": 38, "translation": { "en": "The 1st applicant called one of the persons who had joined the party at the material time to give evidence. This witness said that on that night Miss X’s behaviour was bold and uninhibited. She danced passionately, and she embraced and kissed the 3 defendants. On that night he put Miss X’s handbag in a locker. At the time Miss X left the nightclub, she telephoned him and asked him where her handbag was. At that moment, Miss X’s appearance was no different from that when she just entered the nightclub. The expression in her eyes and her tone and manner of speaking all looked and sounded normal.", "zh-HK": "第一申請人傳召了一位當時有份參加派對的人士作證。這名證人指X小姐當晚表現得很豪放、很熱情地跳舞，以及與三名被告人擁抱及接吻。由於當晚他把X小姐的手袋放在貯物櫃裏面，X小姐離開夜總會時打電話給他問她的手袋在哪裡，當時X小姐表現跟她剛進入夜總會時沒兩樣，眼神和說話的語氣都正常。" } }, { "doc_id": 155, "seg_id": 39, "translation": { "en": "The 2nd applicant", "zh-HK": "第二申請人" } }, { "doc_id": 155, "seg_id": 40, "translation": { "en": "The 2nd applicant elected not to give evidence.", "zh-HK": "第二申請人選擇不作供自辯。" } }, { "doc_id": 155, "seg_id": 41, "translation": { "en": "Directions about intoxication and consent to sexual intercourse", "zh-HK": "有關醉酒及同意性交的指引" } }, { "doc_id": 155, "seg_id": 42, "translation": { "en": "One of the grounds of appeal of both applicants is that Deputy Judge Pang had failed to give sufficient directions to the jury as to how they should deal with Miss X’s behaviour under the influence of alcohol. We now concentrate on this issue. Deputy Judge Pang gave the jury the following directions about the elements of rape:", "zh-HK": "兩名申請人都以彭法官沒有充分引導陪審團應該如何處理X小姐受到酒精影響的行為作為上訴理由。本庭現集中處理這議題。彭法官在引導陪審團時作出「強姦」罪元素的指引：" } }, { "doc_id": 155, "seg_id": 43, "translation": { "en": "“…… What the prosecution must prove beyond reasonable doubt are: Firstly, the accused specified in the charge had sexual intercourse with Miss X. Secondly, at that time Miss X did not consent to sexual intercourse. Thirdly, at that time the accused knew that Miss X did not consent to sexual intercourse, or was reckless as to whether Miss X consented to sexual intercourse.", "zh-HK": "「……控方要喺冇合理疑點下證明嘅係一，某一條控罪所指嘅嗰位被告曾經同X小姐性交。二，當時X小姐不同意性交。三，當時嗰位被告知道X小姐不同意性交，又或者罔顧X小姐是否同意性交。" } }, { "doc_id": 155, "seg_id": 44, "translation": { "en": "Then what is ‘reckless’? It means that the man knew that there was a risk that the woman was not consenting or might be not consenting to sexual intercourse, but he did not care and carried on anyway, when in the circumstance known to him it was unreasonable to do so. That is to say, he took this risk knowing that it was unreasonable to do so, that is ‘reckless’. However, if due to the man’s age or personal characteristics, he really did not appreciate or foresee this risk, then he was not ‘reckless’.", "zh-HK": "咁咩嘢叫「罔顧」呢?嗰個意思係個男嘅知道有個風險，話個女嘅唔同意，或者可能唔同意性交，但係就唔理咁多照樣行事，而且佢咁做，係喺佢自己所知嘅情況下都算唔合理嘅，即係佢明知唔合理，都去承擔呢個風險，咁就係「罔顧」。相反，如果個男嘅因為年齡或者個人特徵等理由，而實在唔能夠察覺或者預期到呢個風險，佢就唔算「罔顧」。" } }, { "doc_id": 155, "seg_id": 45, "translation": { "en": "Alright, if the man at that time did believe that the woman consented to it, then how should you deal with it? The answer is that if it is true or may be true that the man held such belief, then he is not guilty. Even if it was a complete misunderstanding on his part, he is still not guilty. If it is true or may be true that he believed that the woman was consenting, then he is not guilty. Furthermore, even if the defence did not say anything about this, but if there are facts in this case which will make one think that the man was or might be in such a situation, then the prosecution has the duty to prove until you are sure that the man at that time did not genuinely believe that the woman consented to sexual intercourse. Why? Because the burden of proof is on the prosecution. On the other hand, the man, that is the accused, is not required to prove anything. Of course, before you come to a decision on this question, you are entitled to have regard to all relevant circumstances which existed at that time to see whether there were reasonable grounds for the man to hold such a belief, or to have such a misunderstanding. And in the final analysis, you cannot convict him unless you are sure that he did not genuinely believe that the woman consented to sexual intercourse.”", "zh-HK": "好，如果個男人當時直頭相信個女人係同意嘅，咁又點呢?個答案係如果個男人真係，或者可能真係咁相信嘅，佢都冇罪。呢個就算佢誤會晒都係咁喇，只要佢真係或者可能真係相信個女人同意，佢就冇罪。仲有，就算辯方唔講呀，但係案中嘅情節會令人聯想到個男人有或者可能有咁嘅情況嘅話，咁控方都有責任去證明，直到陪審團肯定個男人當時並不真心相信個女人同意性交，點解呀?因為舉證嘅責任喺控方囉。相反，個男，即係個被告係從來都唔使證明啲咩嘢嘅。當然，陪審團喺裁定呢個問題之前，係有權考慮晒當時嘅一切有關情況嘅，睇下有冇合理理由令個男人咁樣相信，或者咁樣誤會。不過，講到底，陪審團都仲係要肯定佢並不真心相信個女人同意性交，先可以判佢有罪。」" } }, { "doc_id": 155, "seg_id": 46, "translation": { "en": "The directions quoted above are basically in line with the standard jury directions designed by the Judiciary, which are:", "zh-HK": "上述指引基本上是符合司法部門所作出的標準陪審團指引，即" } }, { "doc_id": 155, "seg_id": 47, "translation": { "en": "“Before you may convict the accused, you have to be sure of each of the following matters:", "zh-HK": "「你們必須先要肯定下列每項事情，才可以裁定被告有罪：" } }, { "doc_id": 155, "seg_id": 48, "translation": { "en": "that the accused had sexual intercourse with Ms [X];", "zh-HK": "被告與[X]女士性交；" } }, { "doc_id": 155, "seg_id": 49, "translation": { "en": "that at the time of that act of sexual intercourse, Ms [X] did not consent to it; and", "zh-HK": "性交時，[X]女士並不同意；以及" } }, { "doc_id": 155, "seg_id": 50, "translation": { "en": "that at the time of the sexual intercourse either the accused knew that Ms [X] did not consent, or was reckless as to whether she consented to sexual intercourse. The accused was reckless as to whether Ms [X] consented to sexual intercourse if you are sure that the accused did not know and did not care whether she was consenting or not and carried on regardless. In other words, his state of mind was that he could not have cared less.", "zh-HK": "性交時，被告知道[X]女士不同意性交，或者罔顧她是否同意性交。若你們肯定，被告並不知道，亦不理會她是否同意，卻仍不顧一切繼續下去，換句話說，他當時的心態是根本毫不在乎的，那麼，被告便是罔顧[X]女士是否同意性交了。" } }, { "doc_id": 155, "seg_id": 51, "translation": { "en": "If it is or may be the case that the accused believed that she was consenting, then he cannot be guilty of rape. It is not for the accused to prove that he believed that she was consenting; rather, it is for the prosecution to prove, so that you sure, that he did not believe that she was consenting to sexual intercourse. And what if he held that belief but was mistaken? If it is or may be the case that he held a genuine but mistaken belief that she was consenting, then you must acquit him. In deciding whether or not he believed or may have believed that she was consenting, you should have regard to the existence or absence of reasonable grounds for such a belief, and to all the surrounding circumstances. But the question must always be whether you are sure that he himself did not hold such a belief.”", "zh-HK": "若情況是，或者可能是：被告相信她是同意性交的，那麼，他的強姦罪名便不成立。被告無須證明，他相信受害人是同意性交的。控方必須證明，令你們肯定：被告不相信受害人是同意與他性交的。若被告只是因為誤會才相信受害人是同意與他性交的，那又會怎樣呢?若情況是，又或可能是被告真的以為受害人是同意性交的，但其實是他誤會了，那麼，你們便須裁定他無罪。你們決定被告是否相信，或者可能相信受害人是同意性交時，除了應該考慮是否有合理的理由，令被告相信如此外，還須考慮所有的周遭情況。問題始終是：你們是否肯定，被告本人其實並無這樣相信過。」" } }, { "doc_id": 155, "seg_id": 52, "translation": { "en": "In addition, Deputy Judge Pang reminded the jury of the positions held by the prosecution and the defence respectively as to whether Miss X consented to sexual intercourse, and gave them directions about how to deal with the evidence on this issue:", "zh-HK": "另外，彭法官提醒陪審團控辯雙方有關X小姐是否同意性交的立場及引導他們應該如何處理有關的證供：" } }, { "doc_id": 155, "seg_id": 53, "translation": { "en": "“…… The prosecution maintained that Miss X did not consent to sexual intercourse, but because she was drunk, she could not give expression to that and could not indicate any struggle or resistance either by her words or her behaviour. On the opposite side, the defence said, ‘It is not the case. It is true that you were a bit tipsy, but basically you were still sober, and at least your behaviour indicated that you were willing to have sex with all the accused. In the course of doing so, you even very actively cooperated with them.’ That’s the difference in their positions. I have explained in detail what ‘reckless’ is and what you should do if the man misunderstood the woman. My explanation is to make you understand what you should do if, I emphasize if, you are sure that Miss X did not consent to sexual intercourse and you are sure that she was unable to give expression to that, but as far as the accused are concerned, they did not clearly know that, alright?", "zh-HK": "「……控方話X小姐不同意性交，不過因為醉，所以表達唔到，冇言語、行為上面嘅掙扎同反抗。相反，辯方就話「唔係， 妳係有啲醉，不過基本上仍然清醒，而且最少以行動表示過願意同各被告發生性行為，期間仲相當主動咁配合過」，就係咁。至於我詳細講到咩嘢係「罔顧」，又或者個男人誤會咗個女人嗰陣時又會點?都係要幫大家知道如果，我係話如果呀，大家肯定X小姐不同意性交，又肯定佢表達唔到，不過被告嗰邊其實又唔係知得咁清楚嘅話應該點處理，得唔得？" } }, { "doc_id": 155, "seg_id": 54, "translation": { "en": "Finally, I ask everyone of you to bear in mind that the prosecution case is very clear throughout. They said that Miss X was not capable of expressing what was in her mind because she was drunk after drinking the concoction made by mixing vodka with orange juice. There was no other reason, therefore you can only consider Miss X’s evidence on this basis. You must not go into the realm of speculation, for example, “Did anybody drug Miss X without her knowing it?” You cannot do that, understand? I repeat, the prosecution case is that on that night Miss X was drunk. It is for you to decide whether you believe Miss X or not.”", "zh-HK": "最後，我要大家謹記，控方嘅講法從來都好清楚，佢哋話X小姐係因為飲醉伏特加摳橙汁，而失去表達意願嘅能力，冇其他喇，所以大家只能夠循住呢個基楚去考慮X小姐嘅證供，你哋絕對唔可以自己亂諗，例如話「有冇人喺不知不覺間向X小姐落過藥呢？」咁樣，唔可以，明唔明白? 我重複，控方話X小姐當晚係飲醉酒，信唔信X小姐你哋自己決定。」" } }, { "doc_id": 155, "seg_id": 55, "translation": { "en": "Question asked by the jury", "zh-HK": "陪審團的問題" } }, { "doc_id": 155, "seg_id": 56, "translation": { "en": "The unusual feature of this case is that when the jury retired for deliberation, they put down in writing and asked the court the following question:", "zh-HK": "本案特別之處是陪審團在退席商議期間曾以書面形式向法庭提出以下的問題：" } }, { "doc_id": 155, "seg_id": 57, "translation": { "en": "“If a person has done certain acts when he was drunk or when he was not fully sober, can these acts be accepted under the law?”", "zh-HK": "「一個人在醉酒或不完全清醒情況下所做的行為，在法律上是否接受？」" } }, { "doc_id": 155, "seg_id": 58, "translation": { "en": "When Deputy Judge Pang received this question, he first indicated to counsel that he did not understand this question from the jury:", "zh-HK": "彭法官在收到這個提問後先向律師表示他不理解陪審團的問題：" } }, { "doc_id": 155, "seg_id": 59, "translation": { "en": "“There’s a new question, which I don’t know how to answer: ‘If a person has done certain acts when he was drunk or when he was not fully sober, can these acts be accepted under the law?’ Who is he? It’s not specified. ‘If a person has done certain acts when he was drunk or when he was not fully sober, can these acts be accepted under the law?’ It appears that it refers to the defendants, I think, correct? Or who does it refer to?”", "zh-HK": "「新問題，我唔識點答喇，『一個人在醉酒或不完全清醒情況下所做的行為，在法律上是否接受?』邊個呢? 冇講。『一個人在醉酒或不完全清醒情況下所做的行為，在法律上是否接受?』就咁睇係講defendants喇，我諗，係咪呀?定係講邊個呀?」" } }, { "doc_id": 155, "seg_id": 60, "translation": { "en": "Following that, Deputy Judge Pang asked the jury to clarify who the expression “a person” in the question referred to:", "zh-HK": "彭法官接着要求陪審團澄清有關問題中的那「一個人」是指誰人：" } }, { "doc_id": 155, "seg_id": 61, "translation": { "en": "“Court: The new question: ‘If a person has done certain acts when he was drunk or when he was not fully sober, can these acts be accepted under the law?’ Right? Who is he? What kind of person? Who is this person?", "zh-HK": "「官:新問題『一個人在醉酒或不完全清醒情況下所做的行為，在法律上是否接受?』係咪咁呀？邊個呀，咩嘢人呀?邊個人呀？" } }, { "doc_id": 155, "seg_id": 62, "translation": { "en": "Foreman: Any person, if he has done any act because he was drunk, then can I consider that what he has done is something meaning [meaningful]?", "zh-HK": "首席陪審員：任何一個人即係如果因為醉酒，佢做咗任何一啲行為，即係我可唔可以意識到佢係做緊一啲有義意[意義]嘅嘢？" } }, { "doc_id": 155, "seg_id": 63, "translation": { "en": "Court: But who is this person? What has he done under what circumstances?", "zh-HK": "官: 邊個人先得架?咩嘢情況下做咗啲咩嘢呀?" } }, { "doc_id": 155, "seg_id": 64, "translation": { "en": "Foreman: For example, if I was drunk and have done… for example, if I do not have the intention to…", "zh-HK": "首席陪審員：即係譬如我醉咗酒，做一啲--譬如我冇意識去…" } }, { "doc_id": 155, "seg_id": 65, "translation": { "en": "Court: Well, please stop… I don’t understand your question, I don’t understand your question. Mr. juror… foreman, can you go back and write clearly who you are referring to, which person in this case? Alright?”", "zh-HK": "官:嗱，唔好講--我唔明你條問題呀，我唔明你條問題，陪審員--首席陪審員先生，你可唔可以返去寫清楚究竟係講緊邊個，案件裡面邊個，係咪咁呀?」" } }, { "doc_id": 155, "seg_id": 66, "translation": { "en": "After deliberation, the jury informed Deputy Judge Pang that they would withdraw the question. The following is the conversation between Deputy Judge Pang and the foreman:", "zh-HK": "陪審團在退席商議後向彭法官表示他們會撤回有關的問題，以下是彭法官與首席陪審員的談話內容：" } }, { "doc_id": 155, "seg_id": 67, "translation": { "en": "“Foreman: Concerning the question which we asked just now, we cannot formulate it in such a way that will be fair to both parties, so we decided that we won’t ask this question any more.", "zh-HK": "「首席陪審員：正話條問題，我哋諗唔到一個可以令到雙方好公平嘅辦法去問法官閣下，咁所以我哋決定唔問喇。" } }, { "doc_id": 155, "seg_id": 68, "translation": { "en": "Court: Do you mean you will withdraw the question?", "zh-HK": "官:即係收番條問題，…" } }, { "doc_id": 155, "seg_id": 69, "translation": { "en": "Foreman: Yes.", "zh-HK": "首席陪審員: 係喇。" } }, { "doc_id": 155, "seg_id": 70, "translation": { "en": "Court: You won’t ask this question any more. Then I will treat it as if the question has not been asked.”", "zh-HK": "官:…唔問喇，咁就當冇問過個囉喎。」" } }, { "doc_id": 155, "seg_id": 71, "translation": { "en": "Applicants’ position", "zh-HK": "申請人的立場" } }, { "doc_id": 155, "seg_id": 72, "translation": { "en": "The applicants pointed out that the jury obviously had doubts as to whether Miss X consented to sexual intercourse, therefore Deputy Judge Pang should not have allowed the jury to withdraw the question. Instead, he should have given more detailed directions in respect of this issue.", "zh-HK": "申請人指陪審團明顯是對X小姐是否同意性交存有疑問，因此彭法官不應該批准陪審團撤回問題，而且更應該就這議題作出更詳細的指引。" } }, { "doc_id": 155, "seg_id": 73, "translation": { "en": "Respondent’s position", "zh-HK": "答辯人的立場" } }, { "doc_id": 155, "seg_id": 74, "translation": { "en": "The respondent argued that it is not necessary that the jury’s question referred to the victim; it is possible that it referred to the accused. Besides, the respondent submitted that according to Deputy Judge Pang’s summing up and directions, if the jury considered that Miss X consented to sexual intercourse, or if it may be the case that she had indicated that she consented to sexual intercourse, then they should find the accused not guilty. Therefore, when the jury asked this question, it was certain that they had found that Miss X at the material time did not consent to sexual intercourse and that she was not able to give expression to her desire and intention. That meant that the jury had totally rejected the evidence of the 1st applicant and the 2nd applicant that Miss X consented to going to the hotel to have sexual intercourse with them. The jury’s question was only “If Miss X was incapable of giving expression to her intention because she was drunk, should she be protected by the law?”", "zh-HK": "答辯人則指陪審團的問題不一定是牽涉受害人，它亦有可能是牽涉被告人。另外，答辯人指根據彭法官的總結及指引，如果陪審團認為X小姐是同意性交，或有可能表示同意性交的話，他們就應裁定被告人罪名不成立。因此，陪審團在提出該問題時必定是已裁定X 小姐當時是不同意性交的及她是沒有表示意願的能力，這即表示陪審團已完全否定第一及第二申請人提出X 小姐是同意到酒店與他們性交的證供。陪審團所提出的問題只是「如果 X 小姐是因醉酒而失去表達意向的能力，她應否受到法律保護。」" } }, { "doc_id": 155, "seg_id": 75, "translation": { "en": "The respondent submitted that the central legal issue in this case is whether Miss X lost the ability to express whether she was willing to have sexual intercourse, not why she lost the ability to do so; and whether she lost the ability because of sickness, drunkenness, tiredness or other reason, that has no relevance under the law; therefore the fact that Deputy Judge Pang allowed the jury to withdraw the question would not prejudice the interests of the defendant in any way.", "zh-HK": "答辯人指這件案在法律上的重點是X 小姐是否失去了表示願不願意性交的能力，而不是她為何失去這項能力，無論她是因為生病、醉酒、疲勞，或其他原因，這個問題在法律上都並無相關性，因此彭法官批准陪審團撤回有關問題亦不會損害被告的權利。" } }, { "doc_id": 155, "seg_id": 76, "translation": { "en": "The respondent said that the applicants should not assume that the jury had departed from the directions and had provided their own answer to the question. But even if this assumption turned out to be true, the jury could only come to one of the following two conclusions:", "zh-HK": "答辯人指申請人不應假設陪審團偏離了指引及自行解答有關問題。即使這項假設成立，陪審團也只可能作出以下兩個結論：" } }, { "doc_id": 155, "seg_id": 77, "translation": { "en": "The jury came to the conclusion that the acts done by Miss X while she was in a completely intoxicated state as a result of her being drunk were not protected by the law. This conclusion was clearly a misunderstanding of the law and was advantageous to the two applicants.", "zh-HK": "陪審團認為 X 小姐因醉酒致令自己處於完全不清醒情況下所作出的行為是不會受到法律保障的。明顯地，這個結論是對法律的錯誤理解，這會對兩名申請人有利。" } }, { "doc_id": 155, "seg_id": 78, "translation": { "en": "The jury came to the conclusion that the acts done by Miss X while she was drunk or not fully sober were still protected by the law. This conclusion reflected a correct understanding of the law and was not prejudicial to the two applicants.", "zh-HK": "陪審團認為 X 小姐在醉酒或不完全清醒情況下所作出的行為依然是會受到法律的保障。這個結論是對法律的正確理解，這並不會對兩名申請人不利。" } }, { "doc_id": 155, "seg_id": 79, "translation": { "en": "The respondent further submitted that whether the expression “person” in the jury’s question referred to the 3 accused or Miss X, and for whatever reason they withdrew the question, the 3 defence counsel at that time had neither raised any objection nor requested the court to make any clarification or give any further directions to the jury. Obviously, the 3 defence counsel at that time considered that to allow the jury to withdraw the question not only would not harm the 3 accused, but might even be advantageous to them.", "zh-HK": "另外，答辯人說無論陪審團的有關問題中所指的「一個人」是指三名被告還是 X 小姐，或是他們其後基於甚麼原因撤回有關的問題，但當時三位辯方大律師既沒有提出異議，亦沒有要求法官向陪審團作出澄清及進一步指引。明顯地，三位辯方大律師當時是認為容許陪審團撤回該條問題不但不會對三名被告不利，甚至有可能對他們有利。" } }, { "doc_id": 155, "seg_id": 80, "translation": { "en": "Further directions should have been given", "zh-HK": "應該有進一步的指引" } }, { "doc_id": 155, "seg_id": 81, "translation": { "en": "We do not agree with the respondent’s views, these views being too narrow. In our judgment, Deputy Judge Pang should have given further directions in response to the jury’s question. First of all, although the jury did not spell out who the drunken person was, according to the facts, the only person in these charges who had any connection with the word “drunk” was Miss X. None of the 3 accused relied on as their defence their being drunk and having done certain acts while their power of self-control was absent.", "zh-HK": "本庭不同意答辯人的見解，它的觀點過於狹隘。本庭認為彭法官應該就陪審團提出的問題作出進一步的指引。首先，雖然陪審團沒有明顯指出喝醉酒的人是誰，但根據案情，控罪中與醉酒有關連的人只是X小姐，其餘三名被告人均沒有依賴因喝醉酒而做出一些不能自我控制的行為作為抗辯理由。" } }, { "doc_id": 155, "seg_id": 82, "translation": { "en": "The special feature of this case is that the victim consumed a large quantity of alcoholic beverages of her own accord and as a result lost her sobriety. In other words, she voluntarily intoxicated herself. This is different from a case in which the accused made the victim drunk or plied the victim with lots of alcoholic beverages so that the victim became intoxicated and subsequently molested the victim. We believe that the purpose of the jury in asking the question whether the acts done by a person when he was drunk could “be accepted” under the law or whether the acts were “something meaningful” was to ask the court to assist them in order to understand what legal effects the acts done by a person in an intoxicated state would produce. The fact that the jury asked this question demonstrated that they had doubts in this area.", "zh-HK": "本案特殊的地方是受害人自己喝了大量酒精飲品後神智不清。換句話說，她是自願地促使自己昏醉的，這情況有別於被告人灌醉受害人或者鼓勵受害人飲用大量的酒精飲品，令致受害人神智不清，繼而侵犯受害人的案件。本庭認為陪審團之所以提出一個人在醉酒情況下所作出的行為在法律上是否「可被接受」或者是否「是有意義的事」的目的是要求法庭協助他們了解一個人因在昏醉情況下作出的行為在法律上會產生甚麼後果。陪審團提出有關的問題顯示他們就這方面存有疑問。" } }, { "doc_id": 155, "seg_id": 83, "translation": { "en": "The issue in this case is about a victim who voluntarily consumed alcohol and, being affected by the alcohol, became intoxicated. We will limit our discussion to this aspect and will not go into a general discussion about what legal effects the acts done by a victim made drunk by the accused will produce.", "zh-HK": "由於本案的議題是一名受害人自願飲酒而受到酒精影響，導致神智不清，因此本庭只會在這範疇上作出討論，而不會廣泛討論一名受害人遭被告人灌醉後所作出的行為在法律上會引致甚麼後果。" } }, { "doc_id": 155, "seg_id": 84, "translation": { "en": "We are of the view that Deputy Judge Pang should have brought the following matters to the attention of the jury:", "zh-HK": "本庭認為彭法官需要提醒陪審團以下的事項：" } }, { "doc_id": 155, "seg_id": 85, "translation": { "en": "An adult has the right to choose to consume a large quantity of alcoholic beverages and there is nothing unusual about a couple of man and woman having sexual intercourse after both have voluntarily consumed a great deal of alcoholic beverages. Provided that the intercourse is carried out with the consent of both participating parties, it is not rape.", "zh-HK": "一名成年人是有權選擇飲用大量的酒精飲品及一對男女在自願飲用大量酒精飲品後進行性交亦非不尋常的行為，性交若是在雙方同意的情況下進行是不會構成「強姦」罪的。" } }, { "doc_id": 155, "seg_id": 86, "translation": { "en": "In a case which involves a victim who was affected by her own self-induced voluntary intoxication, the question is not whether the intoxication made the victim less inhibited than she would have been if she was sober. Nor is it whether she had, while she was intoxicated, done something which she regretted afterwards. Nor is it whether she had, while she was intoxicated, behaved irresponsibly. Nor is it whether she, because of the intoxication, could not recollect what had happened. Under these circumstances, the court must remind the jury that the most important question is whether the victim consented to sexual intercourse. If the victim, notwithstanding the effect of the alcohol, did consent to sexual intercourse, the consent cannot be revoked or regarded as ineffective.", "zh-HK": "若案件涉及一名自願地令自己昏醉的受害人，那麼有關的議題就不是受害人是否因為醉酒而作出一些比她清醒時較開放的行為；或者是她在醉酒時做出了一些事後感到後悔的行為；或是她在醉酒後作出了一些不負責任的舉動；又或者她因醉酒而對事件失去記憶。在這情況下，法庭必須提醒陪審團最重要的議題是受害人是否同意性交。若果受害人雖然受酒精影響，但她曾同意性交，有關的同意是不能被撤銷或視作無效的。" } }, { "doc_id": 155, "seg_id": 87, "translation": { "en": "The basic consideration as to whether a victim had consented to sexual intercourse is whether she was able to indicate her consent to sexual intercourse. That means if the victim lost her consciousness temporarily because of intoxication, then she did not consent to sexual intercourse. The reason is that being unconscious, she would not be able to make the decision to consent to sexual intercourse. Subject to questions about the state of mind of the accused, sexual intercourse under these circumstances would be rape.", "zh-HK": "受害人是否同意性交的基本條件是她是否有能力表示同意性交，即若果受害人是因為昏醉而暫時失去知覺，她就是不同意性交，理由是她失去了知覺便不會有能力作出同意性交的決定。在這情況下，視乎被告人的意圖，有關性交應構成「強姦」罪。" } }, { "doc_id": 155, "seg_id": 88, "translation": { "en": "Where the victim voluntarily consumed alcohol and consequently made herself drunk but nevertheless remained capable of choosing whether or not to have sexual intercourse and she indicated her consent to do so, this would not be rape. As a matter of practical reality, before a victim becomes unconscious, she may already be unable to make a decision as to whether she should consent to sexual intercourse. Whether this is so or not depends on the facts of each particular case.", "zh-HK": "若果受害人是自願地飲酒，令自己昏醉，但她仍有能力選擇願意或不願意性交及表示同意性交的話，這情況就不會構成「強姦」罪，在很多實際的情況，受害人在失去知覺之前已經可能沒有能力作出是否同意性交的決定，但這應視乎個別案情而定。" } }, { "doc_id": 155, "seg_id": 89, "translation": { "en": "What happened in the present case is remarkably similar to the facts of R v. Bree [2008] Q.B. 131. In that case the victim, having consumed substantial quantity of alcohol in the company of the accused and two friends, vomited in the toilet. The accused helped her to clean her up. Subsequent to that, sexual intercourse took place between the two of them. The victim said that she did not want to have sexual intercourse, but she did not say so to the accused. The defendant protested that the victim consented to sexual intercourse. At the outset, the prosecution case was that because of the effect of the alcohol, the victim was unconscious and lacked the capacity to make the decision to consent to sexual intercourse. However, the prosecution later changed their stance and claimed that the victim had been conscious and capable of making the decision to consent to sexual intercourse, but at the material time she did not consent. The Court of Appeal of England quashed the defendant’s conviction of rape and made comments, similar to those set out above, on the issues of self-induced intoxication by the victim herself as a result of voluntary consumption of substantial quantity of alcohol and whether she consented to sexual intercourse. See legal commentaries on Bree: The Journal of Criminal Law (2009) 73 JCL 318-344.", "zh-HK": "本案的情況與 R v. Bree [2008] Q.B. 131 的案情極為相似。該案受害人與被告人及兩名朋友喝了大量酒精飲品後在廁所嘔吐，被告人協助她清理身上的污物，之後雙方進行性交。受害人聲稱她是不願意性交的，但她沒有向被告人說她不願意性交。被告人聲稱受害人是同意性交。控方的原本立場是受害人因為酒精影響失去知覺致令她沒有能力作出同意性交的決定。但控方後來改變立場，指受害人是有知覺及有能力作出同意性交的決定，但她當時沒有同意性交。英國上訴法庭撤銷被告人的強姦定罪及就受害人自願飲用大量酒精飲品，促使自己昏迷及她是否同意性交的議題作出如上文的討論。另見有關Bree 一案的法律評論：The Journal of Criminal Law (2009) 73JCL 318-344." } }, { "doc_id": 155, "seg_id": 90, "translation": { "en": "We believe that one of the possibilities in this case is this: The victim claimed that she did not consent to sexual intercourse and that because of the effect of the alcohol, she was unable to indicate that she did not consent to sexual intercourse. But in her evidence she said on a number of occasions that after she drank the alcoholic beverages she became “muddle headed”, “my mind was blurred”, “my state of mind became very fuzzy”, “could not use my senses at all” and that after the incident “my head was swimming”. These parts of her evidence would very likely give the jury the impression that she was unconscious when she was in the hotel and was unable to consent to sexual intercourse. That was at variance with the prosecution case. It was necessary for Deputy Judge Pang to give further directions to deal with this aspect.", "zh-HK": "本庭認為本案的其中一個可能性是，雖然受害人聲稱她是不同意性交，只是因受到酒精影響而沒法表示不同意性交，但她的證供卻多次說到她在飲用酒精飲品之後變得「模模糊糊」、「神智模糊」、「精神狀態是好模糊」、「冇晒意識」，事後「瘟瘟沌沌」，這些供詞極可能給予陪審團一個印象是她在酒店時已經失去知覺，並已失去同意性交的能力。這與控方所持的立場有所不同，彭法官是有必要對導陪審團作出進一步針對性的指引。" } }, { "doc_id": 155, "seg_id": 91, "translation": { "en": "Another factor which might cause the jury to have the above impression is that there was no sufficiently clear direction from Deputy Judge Pang in respect of the answers given by the 1st applicant in his evidence in response to the prosecutor’s questions about whether Miss X was conscious. This is what Deputy Judge Pang said to the jury:", "zh-HK": "另外一個可能會引致陪審團得出上述印象的情況是彭法官沒有就第一申請人作供時對主控官提出X小姐是否清醒的問題的答覆給予他們一個較清晰的指引。彭法官這樣對陪審團說：" } }, { "doc_id": 155, "seg_id": 92, "translation": { "en": "“… The 1st accused is adamant that Miss X was conscious. The fact that she was able to do oral sex, on her own initiative, to him (namely the 1st accused) is an example. Well, if that’s what happened, did Miss X know that you people had video-recorded it?”", "zh-HK": "「…第一被告堅稱 X 小姐係清醒嘅，佢識得主動同佢 (即第一被告)口交就係例子喇。好喇，如果係咁，X小姐又知唔知你地拍過 video 嘅呢?」" } }, { "doc_id": 155, "seg_id": 93, "translation": { "en": "“… In relation to another similar question, the 1st accused said that on that night he put on a condom of his own accord … Finally, the prosecutor said, “If Miss X was really conscious, she should know very well that all 3 of you had put on condoms.” But the 1st accused said — I quote — ‘I’m not sure’ ”.", "zh-HK": "「…就另一個類似嘅問題，第一被告話當晚佢係自動戴上避孕套嘅….最後主控話「如果 X 小姐真係清醒嘅話，佢好應該知道你哋三個都有戴套個喎。」不過第一被告話 一 我引述「唔肯定。」」。" } }, { "doc_id": 155, "seg_id": 94, "translation": { "en": "However, the relevant evidence is that during cross-examination when the prosecutor put to the 1st applicant that if Miss X was conscious, then she should know that the 3 of them had put on condoms, his answer was that he “disagree”. He did not say said he was “not sure” whether she was conscious. The matter which he was not sure of was only whether Miss X knew that he had put on a condom when he had sexual intercourse with her.", "zh-HK": "但根據有關的證供，第一申請人在接受盤問時是說他「不同意」主控官所指若X小姐是清醒的話，她就應該知道他們三人是有戴避孕套，他並不是說他「不肯定」她是否清醒，他所不肯定的事只是X小姐是否知道他戴着避孕套與她性交：" } }, { "doc_id": 155, "seg_id": 95, "translation": { "en": "“Question:Did you put on a condom of your own accord, or did you put it on when Miss X asked you to do so?", "zh-HK": "「問 :係你自動戴避孕套吖，抑或係X小姐要求嘅情況之下你戴避孕套?" } }, { "doc_id": 155, "seg_id": 96, "translation": { "en": "Answer:I put on a condom of my own accord.", "zh-HK": "答 : 自動戴避孕套。" } }, { "doc_id": 155, "seg_id": 97, "translation": { "en": "Question:At that time she was fully conscious, when you put on the condom?", "zh-HK": "問 : 佢當時又係完全清醒嘅，你戴避孕套嗰陣?" } }, { "doc_id": 155, "seg_id": 98, "translation": { "en": "Answer:She was conscious.", "zh-HK": "答 : 佢係清醒都。" } }, { "doc_id": 155, "seg_id": 99, "translation": { "en": "Question:Did she see you put on the condom?", "zh-HK": "問 : 睇住你戴避孕套?" } }, { "doc_id": 155, "seg_id": 100, "translation": { "en": "Answer:No, she was not looking at me when I put it on.", "zh-HK": "答 : 咁唔係，唔係望住我戴。" } }, { "doc_id": 155, "seg_id": 101, "translation": { "en": "Question:That means when you were putting on the condom, she did not see that or she turned her face to one side?", "zh-HK": "問 : 即係你戴避孕套嗰陣，佢就自睇唔到或者擰歪面?" } }, { "doc_id": 155, "seg_id": 102, "translation": { "en": "Answer:She was having sexual intercourse at that time.", "zh-HK": "答 : 佢都係性交緊嘛，嗰陣。" } }, { "doc_id": 155, "seg_id": 103, "translation": { "en": "Court:Wait a moment please. When you’re putting it on, she was conscious but she was not watching you put it on, right?", "zh-HK": "官 : 等一等先吓。你戴嘅時候，佢清醒嘅，但係就唔係望住你戴，係咪呀?" } }, { "doc_id": 155, "seg_id": 104, "translation": { "en": "Answer:Right, right.", "zh-HK": "答 : 係，係。" } }, { "doc_id": 155, "seg_id": 105, "translation": { "en": "Court:She was having sexual intercourse?", "zh-HK": "官 : 佢喺度性交緊?" } }, { "doc_id": 155, "seg_id": 106, "translation": { "en": "Answer:Yes.", "zh-HK": "答 : 係。" } }, { "doc_id": 155, "seg_id": 107, "translation": { "en": "Court:With whom was she having sexual intercourse?", "zh-HK": "官 : 同邊個性交緊呀?" } }, { "doc_id": 155, "seg_id": 108, "translation": { "en": "Answer:With the 2nd accused.", "zh-HK": "答 : 同第二被告。" } }, { "doc_id": 155, "seg_id": 109, "translation": { "en": "Question:Do you mean you thought that the fact that you had put on a condom when you had sexual intercourse with her … by ‘her’ I mean Miss X … that Miss X knew that?", "zh-HK": "問 : 即係你覺得你戴避孕套同佢性交，「佢」意思即係X小姐，X小姐係知道嘅?" } }, { "doc_id": 155, "seg_id": 110, "translation": { "en": "Mr. Lo [盧]: … … .", "zh-HK": "盧先生 : ……" } }, { "doc_id": 155, "seg_id": 111, "translation": { "en": "Mr. Lo:Let me see what his answer is.", "zh-HK": "盧先生 : 我睇下佢點答喇。" } }, { "doc_id": 155, "seg_id": 112, "translation": { "en": "Question:Do you agree? That means you had put on a condom when you had sexual intercourse with Miss X, and Miss X was fully aware that you had put on a condom when you had sexual intercourse with her, correct?", "zh-HK": "問 : 同唔同意呀?即係話你戴住避孕套同X小姐性交，X小姐係完全知道你戴住避孕套同佢性交嘅，對唔對呀?" } }, { "doc_id": 155, "seg_id": 113, "translation": { "en": "Answer:I am not sure of this … the answer to this.", "zh-HK": "答 ：我唔肯定，呢個--呢個答案。" } }, { "doc_id": 155, "seg_id": 114, "translation": { "en": "Question:Well, 2nd accused, 3rd accused also had sexual intercourse with Miss X, correct?", "zh-HK": "問 : 嗱，第二被告人、第三被告人亦都有同X小姐性交吖，對唔對呀?" } }, { "doc_id": 155, "seg_id": 115, "translation": { "en": "Answer:Correct.", "zh-HK": "答 : 對。" } }, { "doc_id": 155, "seg_id": 116, "translation": { "en": "Question:Both of them also had put on condoms, correct?", "zh-HK": "問 : 佢兩個都有戴避孕套吖，對唔對呀?" } }, { "doc_id": 155, "seg_id": 117, "translation": { "en": "Answer:Should be so.", "zh-HK": "答 : 應該係。" } }, { "doc_id": 155, "seg_id": 118, "translation": { "en": "Question:They also put them on in the room, correct?", "zh-HK": "問 : 都係喺個房裡面戴喇，對唔對呀?" } }, { "doc_id": 155, "seg_id": 119, "translation": { "en": "Answer:Yes.", "zh-HK": "答 : 係。" } }, { "doc_id": 155, "seg_id": 120, "translation": { "en": "Question:They also put them on in front of Miss X, correct?", "zh-HK": "問 : 都係喺X小姐面前戴喇，對唔對呀?" } }, { "doc_id": 155, "seg_id": 121, "translation": { "en": "Answer:In fact, even I myself did not notice when they put on the condoms.", "zh-HK": "答 : 其實就連我自己都冇留意佢幾時戴避孕套。" } }, { "doc_id": 155, "seg_id": 122, "translation": { "en": "Question:No, I mean do you agree that all 3 of you had put on condoms?", "zh-HK": "問 : 唔係，我意思係話你同唔同意你哋三位都有戴避孕套吖。" } }, { "doc_id": 155, "seg_id": 123, "translation": { "en": "Answer:Yes.", "zh-HK": "答 : 係。" } }, { "doc_id": 155, "seg_id": 124, "translation": { "en": "Question:Miss X was aware of this? I am of course talking about what’s going on at that moment, not subsequently.", "zh-HK": "問 : 呢個情況X小姐係知嘅?即係我當然講當時喇，唔係事後喇。" } }, { "doc_id": 155, "seg_id": 125, "translation": { "en": "Answer:I am not sure.", "zh-HK": "答 ：我唔肯定。" } }, { "doc_id": 155, "seg_id": 126, "translation": { "en": "Question:Why did you need to tell her that all 3 of you had put on condoms? Wasn’t she aware of that? She was fully con … you said she was fully conscious.", "zh-HK": "問 : 使乜你話畀佢聽你哋三個都戴緊套嘅啫，佢唔知咩?佢好清 - 你話佢好清醒嘛。" } }, { "doc_id": 155, "seg_id": 127, "translation": { "en": "Answer:I explained to her what had happened. I was not sure what she was talking about when she told me that she was upset, so I told her what I knew.", "zh-HK": "答 : 我同佢解釋番個原因，因為我唔清楚佢打畀我表達嘅唔開心係表達啲乜嘢，所以我就將我知道嘅嘢同佢講一次。" } }, { "doc_id": 155, "seg_id": 128, "translation": { "en": "Court:Wait a moment. You explained to her what you knew, right?", "zh-HK": "官 ：等一等。你將你知道嘅同佢解釋一次，係咪呀？" } }, { "doc_id": 155, "seg_id": 129, "translation": { "en": "Answer:Right.", "zh-HK": "答 ：係。" } }, { "doc_id": 155, "seg_id": 130, "translation": { "en": "Question:I put it to you that if your evidence is true, I mean if Miss X was fully conscious throughout this process as you said, then you would have no need at all to tell Miss X that you and the 3rd accused “were both wearing condoms at that time”, do you agree?", "zh-HK": "問 :我向你指出，如果你嘅證供係屬實嘅話，我意思係話你講話X小姐全程都好清醒嘅話，根本你就唔需 要再話畀X小姐聽，你同第三被告「都係當時戴緊套」咁，你同唔同意?" } }, { "doc_id": 155, "seg_id": 131, "translation": { "en": "Answer:I don’t agree.", "zh-HK": "答 ：唔同意。" } }, { "doc_id": 155, "seg_id": 132, "translation": { "en": "Question:You knew very well that Miss X at that time was really drunk. She was dazed and muddled, and did not know what was going on. That’s why you sent her this message, ‘Hey, don’t worry, at that time we had put on condoms’. Do you agree?", "zh-HK": "問 ：因為你好清楚當時X小姐真係飲醉咗，迷迷糊糊，都唔知發生咩嘢事，所以你先 send 呢個 message 畀佢，「喂，妳唔使擔心呀，當時我哋戴咗套嘅」咁，同唔同意?" } }, { "doc_id": 155, "seg_id": 133, "translation": { "en": "Answer:I don’t agree.”", "zh-HK": "答 ：唔同意。」" } }, { "doc_id": 155, "seg_id": 134, "translation": { "en": "50.We consider that because of the above-mentioned possibilities, there was additional reason for Deputy Judge Pang to give further directions in respect of the relevant issues when the jury asked the question.", "zh-HK": "本庭認為基於案件有上述這些可能性，彭法官更應該在陪審團提出問題後對有關的議題作出進一步的指引。" } }, { "doc_id": 155, "seg_id": 135, "translation": { "en": "51.Another reason for the jury to ask the question may be that after taking into account the victim’s conduct, actions and behaviour before and during the sexual intercourse, they thought that it was possible that she consented to sexual intercourse, but they were troubled by not knowing what legal consequences her acts done under the influence of alcohol would produce. Under these circumstances, we believe it was imperative for Deputy Judge Pang to give directions and thorough explanation to the jury about the relevant legal principles, especially those relating to the mens rea of the accused.", "zh-HK": "陪審團提出有關的問題的另外一個原因可能是他們基於受害人在性交前及性交時的行為、動作及表現認為她有可能是同意性交的，但困擾他們的是如何理解她在酒精影響下作出的行為在法律上的後果。在這情況下，本庭認為彭法官更加要向陪審團作出指引及詳細解釋有關的法律原則，特別是有關於被告人的意圖。" } }, { "doc_id": 155, "seg_id": 136, "translation": { "en": "52.As the jury were troubled by problems concerning the acts which the victim herself had done, even though Deputy Judge Pang had given directions about “the applicants’ evidence may be true”, that could not give them any real assistance in solving the problems.", "zh-HK": "由於陪審團受到困擾的問題都是涉及受害人本人的行為，故此就算彭法官已作出「申請人證供可能是真的」的指引亦不能實質地協助他們解決有關的議題。" } }, { "doc_id": 155, "seg_id": 137, "translation": { "en": "53.While the position taken by the defence counsel is a factor which should be taken into account, we think that in this case the importance of the jury’s question far outweighs the importance of the defence counsel’s decision of not objecting to the withdrawal of the jury’s question in determining whether the convictions are safe.", "zh-HK": "本庭認為辯方律師的立場當然是一項需要被考慮的因素，但本庭認為在本案陪審團提出問題對定罪是否穩妥的重要性遠超過辯方律師當時並沒有對陪審團撤回問題一事提出異議的決定。" } }, { "doc_id": 155, "seg_id": 138, "translation": { "en": "Convictions are unsafe", "zh-HK": "定罪不穩妥" } }, { "doc_id": 155, "seg_id": 139, "translation": { "en": "54.The court does not judge whether an accused has committed any criminal offence on the basis of moral standards generally accepted in the community, but on the basis of whether the prosecution has adduced sufficient evidence in relation to the elements of the offence concerned. Since Deputy Judge Pang did not give further directions to deal with particular issues when the need to do so arose (particularly further directions about the legal principles involved in the jury’s question), we hold that the convictions are unsafe and we quash the convictions. The respondent indicated that a retrial is not appropriate and it will not apply for a retrial. We think that it was a correct decision.", "zh-HK": "法庭不是以社會普遍接受的道德標準來裁定被告人是否違反刑事罪行，而是基於控方是否對犯罪元素提出充分的舉證。由於彭法官沒有因應案情的需要而作出進一步的指引，特別是陪審團提出的問題所牽涉的法律原則，本庭認為有關的定罪是不穩妥的，故此本庭撤銷定罪。答辯人表示重審並不適當，故此不會申請重審。本庭認為這是正確的決定。" } }, { "doc_id": 155, "seg_id": 140, "translation": { "en": "Other grounds of appeal", "zh-HK": "其他上訴理由" } }, { "doc_id": 155, "seg_id": 141, "translation": { "en": "55.There are other grounds of appeal put forward by the two applicants. The 1st applicant complained that the summing-up given by Deputy Judge Pang was not fair, that he admitted 3 sections of video-recording which had not been edited as evidence, that he allowed the jury to listen to the conversations in these footage, and that thereby he had been treated unfairly. The 2nd applicant pointed out that the verdict of not guilty given by the jury for the 3rd accused was an inconsistent and illogical verdict. He criticized Deputy Judge Pang for failing to present the summing-up fairly, failing to remind the jury of the defence of “genuine belief” when the jury asked him to give directions again in respect of the definition of “reckless” and failing to give directions to the jury as to what matters they should take into consideration in relation to the case of the 2nd applicant in order to determine whether the definitions of “reckless” and “genuine belief” were met. He also complained that Deputy Judge Pang, having told the jury if they found that Miss X did not make any complaint or that Miss X’s distressed appearance was fake, then they could ignore those parts of her evidence, failed to notice that such a finding would have considerable impact on the reliability of Miss X’s evidence and could create a lurking doubt in this case, thus rendering the verdict unfair.", "zh-HK": "兩名申請人在本上訴還提出其他上訴理由。第一申請人指彭法官的總結不持平、容許未經刪剪的三段錄影作為證據及容許陪審團聆聽這些片段內的對話內容，對他做成不公。第二申請人指陪審團裁定第三被告人罪名不成立是一項不一致及不合邏輯的裁決，他指彭法官的總結不持平、彭法官沒有在陪審團要求再次引導「罔顧」的定義時再次提醒陪審團辯方「真心相信」的辯護理由、彭法並沒有指引陪審團就他的案情要考慮甚麼事情來裁定「罔顧」及「真心相信」的定義及彭法官對陪審團說如果他們裁定X小姐沒有作出投訴或者他們裁定X小姐的困惑表現是假的，他們就可以不用考慮她這些證供，但彭法官卻忽略了這個情況會對X小姐的證供的可靠性帶來一定的衝擊及案件存有潛在疑點，致令裁決不公。" } }, { "doc_id": 155, "seg_id": 142, "translation": { "en": "56.In our judgment, the crucial problem in this case is that Deputy Judge Pang failed to give further and in-depth directions as to the law regarding the voluntarily induced intoxication of the victim and whether she consented to sexual intercourse, thereby rendering the verdict unsafe. We do not find it necessary to go into other grounds of appeal except one, which is the complaint by the two applicants that Deputy Judge Pang’s summing-up was not fair. This concerned what Deputy Judge Pang said to the jury, “Although Siu Ming’s evidence cannot assist the prosecution in showing Miss X’s consistency, the defence can make use of it for their own ends.” The two applicants complained that this statement would make the jury misunderstand that the defence was making up a story and was therefore unfair to them. Our view is that the words “ make use of it for their own ends” are indeed derogatory. It means to seize on something and make an issue of it. We think that based on Mr. Fung’s evidence, the two applicants of this case could argue that the victim’s behaviour after the incident was not consistent with her allegation that she had been raped by them. They had the right to argue this and that was a substantive defence. A judge must remain impartial and use appropriate wording, particularly when he is making comments adverse to an accused, a judge should not use words which are derogatory. Deputy Judge Pang’s reference to the applicants by using the words “make use of it for their own ends” was improper. However, we do not think that Deputy Judge Pang deliberately said anything against the applicants’ defence. It was just a wrong choice of words.", "zh-HK": "本庭認為本案的關鍵問題是彭法官沒有就受害人自願醉酒及她是否同意性交的議題上對陪審團作出更深入的法律指引，致令裁決不穩妥，故此本庭認為不需討論其他的上訴理由。本庭唯一需評論的是兩名申請人指彭法官的總結不持平這一點，這涉及彭法官對陪審團說：「小明證供雖然幫唔到控方顯示到X小姐嘅一貫性，但辯方就可以拎嚟做文章喇。」兩名申請人指有關說法使陪審團誤以為辯方正在堆詞，對他們不公平。本庭認為「做文章」這個詞語的確帶有貶義，意思是在某件事件上打主意，借題發揮。本庭認為本案兩名申請人是可以根據馮先生的證供提出受害人在案發後的表現與她報稱被他們強姦不一致，這是他們的權利，也是一項實質的答辯理由。法官必須保持公正態度及採用適當的措詞，特別是對被告人作出不利的評論時，法官是不應該採用含貶意的詞語。彭法官以「做文章」這詞語來形容申請人是不恰當的，但本庭不認為彭法官是故意針對申請人的答辯，他只是用詞不當而已。" } }, { "doc_id": 155, "seg_id": 143, "translation": { "en": "Mr. Robert Lee, S. C., Deputy Director of Public Prosecutions and Mr. Bobby Cheung, Public Prosecutor of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司副刑事檢控專員李紹強資深大律師及檢控官張民焜代表。" } }, { "doc_id": 155, "seg_id": 144, "translation": { "en": "Mr. Eric Kwok, S. C. and Ms. Vivian Ho, instructed by Hui & Lam, for the 1st Applicant.", "zh-HK": "第一申請人：由許林律師行轉聘郭棟明資深大律師及何慧嫻大律師代表。" } }, { "doc_id": 155, "seg_id": 145, "translation": { "en": "Mr. Richard Wong, instructed by Michael Cheuk, Wong & Kee, for the 2nd Applicant.", "zh-HK": "第二申請人：由卓黃紀律師事務所轉聘黃達華大律師代表。" } }, { "doc_id": 156, "seg_id": 1, "translation": { "en": "Hon Chan CJHC (giving the judgment of the Court):", "zh-HK": "由高等法院首席法官陳兆愷宣讀上訴法庭判案書:" } }, { "doc_id": 156, "seg_id": 2, "translation": { "en": "The Applicant appeared in the Court of First Instance on the following charges against him: two counts of trafficking in dangerous drugs, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134), and one count of possessing arms without licence, contrary to Section 13 of the Firearms and Ammunition Ordinance (Cap. 238). The Applicant pleaded guilty to possessing arms without licence but pleaded not guilty to trafficking in dangerous drugs. After trial, the jury by a 5:2 majority convicted the Applicant on the first count and unanimously convicted him on the second count. For the two trafficking offences, the Applicant was sentenced to imprisonment for 3 years and 7 years 8 months respectively, with the sentences to run concurrently. For the possession of arms offence, the Applicant was sentenced to imprisonment for 1 year 4 months, with 6 months of which to run concurrently with the above 7 years 8 months sentence. The total sentence was therefore 8 years 6 months. The Applicant now applies for leave to appeal against conviction in respect of the two trafficking offences.", "zh-HK": "上訴申請人在高等法院原訟庭被控兩項販運危險藥物罪，違反香港法例第134章《危險藥物條例》第4（1）（a）及（3）條及一項無牌管有槍械罪，違反香港法例第238章《火器及彈藥條例》第13條。申請人承認無牌管有槍械但否認販運毒品。經審訊後，陪審團就第一項控罪以5比2大多數裁定申請人罪名成立，就第二項控罪則一致裁定他罪名成立。法官就兩項毒品罪名分別判申請人入獄3年及7年8個月，准以同期執行，就槍械罪名判他入獄1年4個月，其中6個月准以同期執行，總刑期為8年6個月。申請人對兩項販運毒品控罪的定罪提出申請上訴許可，要求推翻原判。" } }, { "doc_id": 156, "seg_id": 3, "translation": { "en": "At 2.07 a.m. on 21 October 1997, two police officers were patrolling the Hunghom area. They stopped the Applicant at the junction of Hok Ling Street and Ma Tau Kok Road and asked him where he lived and why he was there. He replied that he was looking for a friend in Hok Ling Street. The officers conducted a search on him and found two plastic bags from the left front pocket of his trousers. The plastic bags contained certain drugs which were subsequently verified by laboratory tests to be crystalline solid weighing 1.37 grams and containing 1.3 grams of methamphetamine hydrochloride, commonly known as “ice”. The Applicant admitted to the police officers that the two plastic bags contained “ice”. The officers then arrested him. Under caution, he said that the drugs were for self-consumption. The officers took him to the police station, where 4 keys were found on him upon search. At 5.25 a.m. on the same day, police officers went with the Applicant to his place of residence in Kweilin Street to conduct a search. Upon arrival, the Applicant opened the entrance door of his residence with one of the said keys. The officers found in the room a paper box which contained another lot of “ice” which, as laboratory tests revealed, comprised crystalline solid weighing 35.85 grams and containing 26.06 grams of methamphetamine hydrochloride. The police cautioned the Applicant again, and he said under caution that those substances were “ice” which he purchased for self-consumption. The police also found in the same room a total of 183 re-sealable plastic bags contained in two packs and one spoon. A stun gun was also found in the room. The Applicant and all the exhibits were taken back to the police station.", "zh-HK": "於1997年10月21日凌晨2時07分，兩名警員在紅磡地區巡邏，於九龍鶴齡街與馬頭角道交界截停申請人，並詢問他的地址和在該處的原因。申請人回答說是往鶴齡街尋找朋友。警員向他搜身，在他左前褲袋搜到兩個膠袋，袋內藏有一些毒品，經化驗後證實為內含1.3克鹽酸甲基苯丙胺的1.37克晶狀固體，即俗稱「冰」的毒品。申請人向警員承認該兩個膠袋內所藏的是「冰」。於是警員拘捕申請人並施以口頭警誡。申請人回答說這些毒品是用作自己吸食的，警員便把他帶返警署。其後在警署內，警員在申請人身上搜到4把鎖匙。於同日早上5時25分，申請人帶警員到他在桂林街的住所進行搜查。到達後，申請人用其中一把鎖匙開門，警員在房間內搜查時，在一個紙皮盒內發現另一批「冰」的毒品，經化驗後證實為內含26.06克鹽酸甲基苯丙胺的35.85克晶狀固體。警員再次警誡申請人，他回答說這些是「冰」，是他買回來供自己吸食的。其後警員在房間內更搜獲兩包可再封包的膠袋共183個和一隻匙羹。警員還在該房間內搜獲一支電槍。其後把申請人連同證物帶回警署。" } }, { "doc_id": 156, "seg_id": 4, "translation": { "en": "At trial, the prosecution and the defence submitted to the court the Admitted Facts, which detailed the nature of “ice”, the usual amount of “ice” being consumed and the method of consuming “ice”.", "zh-HK": "在審訊時，雙方向法庭呈交一份承認事實書。該文件列出有關「冰」的性質，通常服用的份量和吸食的方法。" } }, { "doc_id": 156, "seg_id": 5, "translation": { "en": "Mr Wong, Counsel for the Applicant, submits that the question for the jury in the present case was whether the prosecution had proved beyond reasonable doubt that the Applicant possessed the drugs in question, with part of the drugs to be sold or delivered to others. In his summing-up, however, the trial judge neither adequately explained the term “traffic” nor directed the jury on how to apply the definition of “traffic” to the facts of the present case.", "zh-HK": "代表申請人的王大律師在陳詞中指出，在本案中，陪審團要裁決的是控方能否在毫無合理疑點下證明申請人管有案中的毒品將其中部份用以銷售或遞送給其他人士。但原審法官在引導陪審團時，沒有充份解釋「販運」的定義及沒有引導陪審團如何把「販運」的定義應用於本案的案情上。" } }, { "doc_id": 156, "seg_id": 6, "translation": { "en": "The trial judge’s directions to the jury included the following:", "zh-HK": "原審法官向陪審團引導時有以下的指引：" } }, { "doc_id": 156, "seg_id": 7, "translation": { "en": "“At law, the term ‘traffic’ is given a very wide definition. Trafficking includes importing into or exporting from Hong Kong dangerous drugs, as well as procuring, supplying or otherwise dealing in or with dangerous drugs for the purpose of trafficking, or possessing dangerous drugs for the purpose of trafficking, and trafficking in dangerous drugs. These are all definitions of trafficking.”", "zh-HK": "「喺法律來講，「販運」呢個名詞所訂下的定義非常廣泛。販運包括進入香港或者從香港出口嘅危險藥物，亦都包括以非法販運為目的獲取供應、或者以其他方式經營、或者處理危險藥物、或者管有危險藥物用作販運用途、同埋販運危險藥物，呢啲都係販運的定義。」" } }, { "doc_id": 156, "seg_id": 8, "translation": { "en": "Counsel contends that, where the judge merely read out the statutory definition without any further explanation, the jury was liable to be misled. Counsel relies on R v. Chan Hoi-wing (CACC 596/1996) and submits that the trial judge in the present case made the same mistake, thereby rendering the jury’s verdict unsafe and unsatisfactory.", "zh-HK": "大律師指出法官單是向陪審團讀出法例上的定義而不加以解釋可能會誤導陪審團。大律師引用R. v. Chan Hoi-wing (刑事上訴1996年第596號)案例，並指出本案的原審法官犯上同樣錯誤，因此陪審團的裁決不安全及不穩當。" } }, { "doc_id": 156, "seg_id": 9, "translation": { "en": "It is the facts of the particular case that will dictate what sort of directions a trial judge has to give, what are the legal principles and evidence in respect of which directions should be given, as well as how directions are to be given. Where certain facts of the case are not in dispute, the prosecution does not have to prove those facts, and there is no need for the judge to give detailed directions on those facts. Or where the legal principles relevant to the case can readily be understood by anyone with common sense, the judge need not give any direction apart from referring the jury to the relevant statute. In R v. Chan Hoi-wing, the trial judge read out to the jury the statutory definition of “trafficking” and did not further explain the term or direct the jury on how to apply the definition to the facts of the case, and Court of Appeal took the view that, in the circumstances of the case, the jury might have been misled. However, the Court of Appeal did not hold that it must be wrong for the judge to read out the statutory definition without providing further explanation. In our view, the most important question is whether the judge had, in his summing-up, clearly and fairly directed the jury on the facts, the evidence and the issues in dispute. As to whether the judge erred in giving directions, the appellate court has to decide, in light of the judge’s speech as a whole, whether he had omitted any crucial matter or misled the jury or whether the conviction is unsafe or unsatisfactory.", "zh-HK": "向陪審團作出引導時，原審法官應該作出何種指引，應該就那些法律原則或那些證供作出引導，及如何引導，均須視乎案情而定。如果案中某些事實沒受爭議，控方無須就這些事實提出證明，而法官也無須就這些事實作出詳細引導。又如果一些與案有關的法律用一般常理已經可以了解，法官除了向陪審團提出有關的法例外不須再多作引導。在R. v. Chan Hoi-wing一案中，上訴庭認為該案的原審法官只是向陪審團宣讀法例中「販運」的定義，而沒有進一步解釋販運的意思及將販運一詞應用在案情上向陪審團作出引導，在該案的情況下，可能會誤導陪審團。不過，上訴庭在該案中並沒有裁定如果法官只把法例向陪審團宣讀而沒有作其他解釋，便必定是犯錯。本庭認為，最重要的是原審法官能否就案情、證據及雙方爭議的論點，在結案時向陪審團作出清楚及持平的引導。至於在引導時有沒有犯上錯誤，是要從講辭的整體來看，才可以決定法官有沒有忽略了甚麼要點，有沒有誤導陪審團，或定罪是否不安全及不穩當。" } }, { "doc_id": 156, "seg_id": 10, "translation": { "en": "In the present case, the Applicant was stopped by the police at 2 a.m. At that time he had two bags of drugs on his person. He explained to the police that he was looking for a friend at that time, and that he was carrying those two bags of drugs because he had not taken any drug that day and he intended to consume the drugs in one of the bags upon meeting the friend and keep the other bag for consumption later. The Applicant also admitted to possessing the large quantity of drugs that the police found at his home. It is not difficult to suspect or envisage from the circumstances leading to the Applicant’s arrest that he was trafficking in drugs at that time. There are certain differences between the Applicant’s case and that of the defendant in R v. Chan Hoi-wing. The defendant in that case was stopped by the police when he arrived at the entrance door of his home, and drugs were found following a search, and therefore it was not obvious whether the drugs were for trafficking or self-consumption. Furthermore, as there was evidence in the present case on the nature and dosage of “ice”, the jury could, taking into account the quantity of the drugs involved, assess the probability of the Applicant possessing the drugs for self-consumption. Therefore, it might have been necessary for the trial judge in R v. Chan Hoi-wing to further explain the term “trafficking”.", "zh-HK": "在本案中，申請人在凌晨兩點被警方在街上截停。當時他身懷兩包毒品。其後向警方解釋說他當時是尋找朋友，藏有兩包毒品是因為他當天尚未吸毒，打算見到朋友後吸食其中一包，而另外一包則留作後用。申請人還承認管有在家中被警方尋獲的大量毒品。從申請人被拘捕的情況看來，很容易令人懷疑或聯想到他是正在販運毒品。本案的申請人與R. v. Chan Hoi-wing一案中的被告人有些不同。該案的被告人是在到達家門時被警方截停和搜出毒品，因此該些毒品是用作販運或是用來自己吸食並不是那麼明顯。加上在本案中有證據顯示有關「冰」的藥性及服用份量，陪審團可以從案中的毒品數量考慮申請人拿毒品來自己吸食的可性有多大。因此，在R. v. Chan Hoi-wing一案中，法官或許須要就「販運」一詞作多一些的解釋。" } }, { "doc_id": 156, "seg_id": 11, "translation": { "en": "The charge against the Applicant was unlawfully trafficking in dangerous drugs, and the prosecution had to prove beyond reasonable doubt that, firstly, the Applicant possessed the drugs in question, and secondly, he “trafficked” in those drugs. The term “trafficking” has been defined in Section 2 of the Ordinance. It must, however, be noted that “trafficking” is expressly defined to “include” and not “be equivalent to” certain acts. From this definition, the legislative intent is apparent: apart from maintaining the ordinary meaning of “trafficking”, the legislature seeks to explain and expand the scope of “trafficking”, not only in order to clarify the meaning of the term, but also in order to overtly extend statutory control to certain acts which may otherwise not be regarded as trafficking. The most obvious example is the inclusion of “possessing the dangerous drug for the purpose of trafficking” in the statutory definition of trafficking, which means that, even though there is no evidence showing that the defendant was engaged in an act of trafficking in dangerous drugs, the judge or jury can infer from the defendant’s act of possessing the drugs and other factual evidence that the defendant possessed the drugs for the purpose of trafficking, and at law this did constitute trafficking. It is therefore obvious that the statutory definition aims to explain and expand the scope of the term “trafficking”. In order to understand what amounts to “trafficking” at law, one does not only have to look at the ordinary meaning of the word, but also has to consider whether the statutory definition is applicable.", "zh-HK": "有關控罪為非法販運危險藥物，控方必須在毫無合理疑點下證明：第一，申請人管有案中有關毒品，第二，他是「販運」這些毒品。至於「販運」一詞，條例中第二條內已列出定義。不過必須要注意的是「販運」的定義訂明是「包括」而不是「就是」若干行為，從這個定義可以看到立法的目的是除了要保持「販運」一詞的日常用意外，還把它加以解釋和擴大它的範圍，不單使這個詞語的用意更為明確，還清楚地把一些人們可能以為不是販運的行為納入「販運」這個定義之內，使之受法律管制。最明顯的例子就是把「管有危險藥物作販運」在法律上列為販運，意思是雖然沒有證據顯示被告人正在進行販運毒品行為，但法官或陪審團可從被告人管有毒品的行為及其他的證據等事實作出一個推論，就是被告人管有毒品的目的是用作販運用途，在法律上也會被視為販運行為。因此明顯可見，條例所列出的定義的用意是對「販運」一詞加以解釋及伸展它的用意。若要理解在法律上何謂「販運」，除了要看販運二字的一般解釋外，還要看條例上的定義是否適用。" } }, { "doc_id": 156, "seg_id": 12, "translation": { "en": "As far as directions to jury are concerned, there is one difference between the present case and R v. Chan Hoi-wing. In that case, the trial was conducted in English, and therefore the jury was also directed in English. The subject-matter of the charge was “traffic”. This word ordinarily means the movement of people, vehicles, ships or planes, but it can also mean unlawful buying and selling. If, therefore, the directions on the term “traffic” are given in English, then apart from reading out the relevant statutory definition, the judge may also have to provide further explanation. In the present case, the trial was conducted in Chinese and the jury was also directed in Chinese. The subject-matter of the charge was “販運”. The situation was then somewhat different. The meaning of this Chinese term is clear and straightforward: sell and deliver. It follows that, even if the judge does not provide any further explanation, ordinary people will still know what “販運” refers to. Where the judge has given directions on the other relevant evidence such as the quantity of the drugs involved, the quantity being consumed and the other exhibits found upon search, then in some cases it may be sufficient for the judge to read out the statutory definition of “販運” and any further explanation may only serve to confuse the jury. As to whether particular directions are sufficient and what kind of directions will be sufficient, this must depend on the circumstances of the case, and no general rule can be formulated.", "zh-HK": "在引導陪審團時，本案與R. v. Chan Hoi-wing一案有一個分別。就是在該案中，由於審訊是用英語進行，因此引導陪審團亦是用英語的。控罪中有關的詞語是“traffic”。該詞一般的理解是人、車輛、船隻或飛機的往來，也可解作非法買賣。因此如果以英語引導陪審團有關“traffic”一詞時，除了向陪審團宣讀法例中有關的定義外，可能還須要作進一步解釋。在本案中，審訊是用中文進行，而引導陪審團亦是用中文的。控罪中有關的詞語是「販運」。當法官用中文引導陪審團時，情況便有些不同。因為「販運」一詞在中文上的意思已經很淺易和明顯：就是販賣及運送。因此即使法官沒有再作出進一步的解釋，一般人對「販運」一詞亦會知道指的是甚麼。如果法官對案中其他有關的證據，例如毒品的數量，吸食的份量和其他搜獲的證物已作出指引，那麼把法例中「販運」的定義向陪審團宣讀，在一些情況下，可能已經足夠。如果再進一步詳加解釋，甚至可能會混淆不清。至於是否足夠和甚麼是足夠，卻要視乎案中的情況而定，不能一概而論。" } }, { "doc_id": 156, "seg_id": 13, "translation": { "en": "In the present case, the question to be determined by the jury was: did the Applicant possess the drugs for self-consumption, or did he intend to traffic in all or part of them?", "zh-HK": "在本案中，陪審團須要決定的問題是：究竟申請人是管有毒品用作自己吸食，還是打算把全部或部份拿去販運？" } }, { "doc_id": 156, "seg_id": 14, "translation": { "en": "In the course of directing the jury, the trial judge said the following:", "zh-HK": "原審法官在引導陪審團時曾經說出：" } }, { "doc_id": 156, "seg_id": 15, "translation": { "en": "“None of the prosecution evidence is under dispute. The only question you have to consider is whether, on the basis of the arguments advanced by the prosecution, you firmly believe that, in respect of each charge, the defendant did possess those dangerous drugs for the purpose of trafficking, or whether, as he and his lawyer have explained to you, you believe that those drugs were for self-consumption rather than for trafficking. This is the only question you have to consider.", "zh-HK": "「所有主控嘅證供並無爭論。你哋唯一要考慮係被告是否因為好似控方向你哋所講嘅論據，令你哋確 信被告喺每一項控罪中都係管有嗰啲危險藥物用作販運用途，還是好似佢同埋佢律師向你哋所解釋，佢係自用而唔係用嚟販運，即係唯一你哋需要考慮嘅一點。" } }, { "doc_id": 156, "seg_id": 16, "translation": { "en": "… Therefore, you have to take into account all the testimony and evidence. If you have a reasonable doubt and cannot firmly believe that the defendant trafficked in these dangerous drugs, you cannot convict him of trafficking in dangerous drugs and can only convict him of possessing dangerous drugs. You can convict the defendant of trafficking in dangerous drugs only if, having carefully considered all the evidence, you firmly believe beyond reasonable doubt that the defendant possessed those two bags of ‘ice’ and that those two bags of ‘ice’ were for the purpose of trafficking. Only then can you convict him on the first count.", "zh-HK": "…..所以你哋要考慮所有嘅證供同埋證據，如果你哋有合理疑點，唔能夠確信被告販運呢啲危險藥物，你哋亦都唔可以判佢販運危險藥物嘅罪名成立，而只能判佢管有危險藥物嘅罪名成立，你哋只能判被告販運危險藥物嘅罪名成立，如果你哋經過仔細考慮所有證供之後，你哋喺沒有合理疑點之下，確信被告管有嗰兩包「冰」,而嗰兩包「冰」係用作販運用途，你哋先可以判佢第一項控罪罪名成立。" } }, { "doc_id": 156, "seg_id": 17, "translation": { "en": "… If you have a reasonable doubt after considering all the evidence, he [the defendant] is entitled to the benefit of doubt, and you cannot convict him of trafficking and can only convict him of possessing dangerous drugs. You can convict the defendant of trafficking in dangerous drugs only if, having carefully considered all the evidence, you firmly believe beyond reasonable doubt that the defendant used the ‘ice’ found at his home for the purpose of trafficking. Only then can you convict him on the second count.”", "zh-HK": "…..如果你哋考慮過所有嘅證據，如果有合理疑點，佢亦都會得到有合理疑點嘅得益，你哋亦都唔能夠判佢販運嘅罪名成立，而只能判佢管有危險藥物嘅罪名成立。你哋只能判被告販運危險藥物嘅罪名成立，如因你哋經過仔細考慮所有證供，你哋喺無合理疑點下，確信被告將屋企裏頭搜出嚟嘅「冰」係用作販運用途，你哋先可以判第二項控罪罪名成立。」" } }, { "doc_id": 156, "seg_id": 18, "translation": { "en": "On the facts of the present case, and looking at the speech of the summing-up as a whole, the trial judge had, far from misleading the jury, lucidly explained to them the issues involved and the questions they had to determine. The jury would also have understood the meaning of drug trafficking without the need for further explanation. In the circumstances of the case, we take the view that the trial judge’s directions to jury were adequate as they stood, and we see nothing unsafe or unsatisfactory about the Applicant’s convictions. The grounds of appeal not having been made out, we dismiss the application and affirm the trial judge’s verdict.", "zh-HK": "根據本案的案情，及從引導陪審團的整個講辭看來，原審法官已清楚地向陪審團指出問題所在和他們所要決定的是甚麼，法官並沒有誤導陪審團，而陪審團也會理解甚麼是販運毒品，無須再加以解釋。本庭認為在本案的案情下，原審法官向陪審團所作出的引導已是足夠。本案的定罪亦沒有不安全和不穩當的地方。上訴理由並不充份，因此本庭駁回上訴申請，維持原判。" } }, { "doc_id": 156, "seg_id": 19, "translation": { "en": "Mr Wong Hay Yiu, assigned by the Legal Aid Department, for the Applicant.", "zh-HK": "上訴申請人 :由法律援助署委派王熙曜律師代表" } }, { "doc_id": 156, "seg_id": 20, "translation": { "en": "Ms Bianca Cheng, Senior Government Counsel, for the Respondent.", "zh-HK": "上訴答辯人 :由鄭詠榆(高級政府律師)代表" } }, { "doc_id": 157, "seg_id": 1, "translation": { "en": "Hon Chan CJHC (giving the judgment of the Court):", "zh-HK": "由高等法院首席法官陳兆愷宣讀上訴法庭判案書:" } }, { "doc_id": 157, "seg_id": 2, "translation": { "en": "The applicant was convicted of one count of blackmail after trial by Deputy Judge Lin in the District Court and was sentenced to two years’ imprisonment. He now applies for leave to appeal against the conviction.", "zh-HK": "申請人在區域法院經聆訊後被暫委法官練錦鴻裁定一項勒索罪罪名成立，被判入獄兩年，現申請上訴許可要求推翻原判。" } }, { "doc_id": 157, "seg_id": 3, "translation": { "en": "The prosecution’s case is as follows: On 8 November 1996, PWI Lam Man Yam and two friends of his became acquainted with another defendant of this case Iu King Yuen, and they talked about business matters involving the importation of labour. On 10 November, they came to know the applicant through the introduction of Iu King Yuen, and they later went on a business trip to the mainland together. Whilst in the mainland, Mr. Lam allegedly lost 3.12 million dollars in card games. He said he was forced to write a note to instruct his family members to deliver $800,000 to him. He was even detained in Dongguan. On 12 November, Mr. Lam’s son (PW4) was notified by a friend and PW3 (another friend who had gone on the business trip to the mainland together with Mr. Lam) to go to the Mei Foo MTR station to meet the applicant. PW4 was also told that he was required to pay $800,000. At the Mei Foo MTR station, PW4 met the applicant, the first defendant in the present case, and another friend who had gone on the business trip to the mainland together with Mr. Lam (PW2). Then they went to a podium in Mei Foo where they sat down to have a talk. The applicant explained to PW4 how Mr. Lam came to lose heavily in gambling in the mainland, but an agreement was reached whereby he only had to pay $800,000 to settle the debt. The applicant also produced a note in Mr. Lam’s handwriting and asked PW4 to pay the said sum. After seeing the note, PW4 requested to talk to his father Mr. Lam over the phone. The applicant managed to get hold of Mr. Lam on the phone, and PW4 had a telephone conversation with his father. Mr. Lam instructed PW4 to give the applicant $800,000, but he must require the applicant to provide his ID card number. During the conversation, Mr. Lam spoke to PW4 in Putonghua instead of the Putian dialect that they used to speak. PW4 asked Mr. Lam over the phone why he did not speak the Putian dialect but Mr. Lam did not answer. PW4 therefore began to suspect that his father was in jeopardy. The telephone conversation lasted about two minutes. After that, PW4 asked the applicant to provide his ID card number but the applicant refused, saying he only agreed to issue a receipt.", "zh-HK": "控方案情如下：於1996年11月8日，第一證人林文欽與兩名朋友認識案中另一被告姚經元，並相討輸入勞工的生意。於11月10日，經姚經元介紹認識申請人。然後數人一同前往國內洽商生意。林先生後來在國內被指稱因玩紙牌輸了312萬元，他說在威嚇之下寫了便條囑家人送上80萬元。林先生更遭拘留在東莞。於11月12日，第四證人，即林先生的兒子，經朋友和第三證人(即與林先生一同前往國內洽談生意的另一位朋友)通知前往美孚地鐵站與申請人會面，並獲告知有人要求他給予80萬元。在美孚地鐵站，第四證人與申請人、同案的第一被告及跟林先生一同前往國內商談生意的朋友(即第二證人)會面，接著一起前往美孚平台坐下商談。當時申請人向第四證人解釋有關林先生在國內如何賭錢輸掉巨款，不過跟他人協議只須付出80萬元以作清還，並拿出一張林先生親筆所寫的字條給第四證人並要求他交出該筆款項。第四證人看過該張字條後要求與他的父親林先生通電話。其後申請人打電話跟林先生聯絡上，於是第四證人父子雙方在電話上談話。林先生指示第四證人給申請人80萬元，但必須要求申請人提供身分證號碼。當時林先生跟第四證人談話時是用普通話而不是用他們慣用的蒲田話，在電話中第四證人問林先生為何不說蒲田話，但林先生沒有回答，因此引起第四證人懷疑他的父親正在身處險境。這個電話大約花了兩分鐘左右。其後第四證人要求申請人提供身分證號碼，但遭申請人拒絕。申請人只是答應寫一張收據。" } }, { "doc_id": 157, "seg_id": 4, "translation": { "en": "During the course of the incident, PW4 had asked the applicant, “You probably have children in your home, why do you subject my father to such sufferings?” The applicant said to PW4, “We are in an illicit business, but the illicit act will not be repeated.” The applicant further said to PW4, “You are an educated person, you should be sensible enough to know very well how the people up there will treat him if you do not pay.” PW4 understood this to mean that, unless he acceded to the applicant’s request by giving him $800,000, his father might be in danger in the mainland. PW4 therefore agreed to pay, and arrangements were made for the sum to be withdrawn from a bank in Central. However, the applicant and another co-defendant were arrested at the bank by the police as PW4’s friend had informed the police earlier on. Eventually, Mr. Lam was released in Dongguan on 17 November.", "zh-HK": "在整個過程中，第四證人曾向申請人說：「你應該屋企都有仔女，你點解要咁樣害我爸爸?」申請人對第四證人說：「我哋做偏門，一偏唔可以再偏。」其後申請人更對第四證人說：「你都係讀書人，咁你都應該明白事理，如果你唔畀錢，上高的人會對佢係點樣，你應該好清楚。」根據第四證人理解，他的父親在國內可能會發生危險，除非他答應申請人的要求給予他80萬元。在這情況下，第四證人於是答允付款。其後經過安排前往一間在中環的銀行提款，但由於較早時第四證人的朋友已通知警方，因此在銀行處申請人及同案另一被告被警方拘捕。最後，林先生於11月17日在東莞獲釋。" } }, { "doc_id": 157, "seg_id": 5, "translation": { "en": "The applicant elected to give evidence at trial. He admitted that he had taken a business trip to the mainland together with Mr. Lam, PW2 and PW3. At a social function, he felt tired after consuming some alcohol, so he returned to his hotel room to have a rest. He neither knew about nor participated in any card game session that evening. The next day Mr. Lam told him that he had lost over three million dollars in gambling and asked him to bring a note and an ATM card to PW3 in Hong Kong. After he returned to Hong Kong, the applicant met PW2 at the Mei Foo MTR Station on the morning of 12 November. PW2 took the ATM card but refused to accept the note. The applicant then prepared to return to the mainland, but after receiving a phone call from Mr.Lam, he returned to the Mei Foo MTR Station to meet PW4. At the request of PW4, the applicant prepared to accompany him when he delivered cash to the mainland. The applicant said he had not asked PW4 to give him $800,000, still less uttered any threatening words. Throughout the incident, his only motive was to help Mr. Lam as a friend by delivering the note to Hong Kong and contacting his friends and family members; in other words, he just helped rescue Mr. Lam. He also wished to get a commission upon striking a business deal. Under cross-examination, the applicant said that he did not know Mr. Lam was being held in the mainland and that he only knew Mr. Lam had lost money and freedom of movement.", "zh-HK": "在審訊過程中，申請人選擇作供。他承認跟林先生和第二及第三證人回國內商討生意，其後在應酬期間因為喝了點酒感到疲倦於是回酒店房間休息。他不知道亦沒有參與當晚的牌局。到第二天林先生告訴他賭錢輸了300多萬元，並叫他帶一張字條及提款咭回香港交給第三證人。後來申請人回港後於11月12日早上在美孚地鐵站見到第二證人。第二證人取了提款咭卻拒絕接受字條。申請人便打算返回國內，但因接到林先生的電話於是再回到美孚地鐵站會見到第四證人。在第四證人的要求下打算陪他帶錢回國內。申請人說他並沒有要求第四證人給予80萬元，更沒有說過任何恐嚇語句。在整件事情中，他只是盡朋友之義替林先生帶字條回港接洽他的朋友及家人，他只是協助迎救林先生。他亦希望在生意成功後獲得佣金。申請人在接受盤問時說他並不知道林先生在國內被拘錮，他只知道他輸了錢而且行動不便。" } }, { "doc_id": 157, "seg_id": 6, "translation": { "en": "After carefully evaluating all the evidence, the trial judge accepted the evidence of the prosecution witnesses and found the applicant guilty of blackmail.", "zh-HK": "原審法官經詳細考慮案中的所有証供，接納控方證人的供詞，並裁定申請人勒索罪名成立。" } }, { "doc_id": 157, "seg_id": 7, "translation": { "en": "Mr. Yeung, counsel for the applicant, has advanced six grounds of appeal against the conviction.", "zh-HK": "代表申請人的楊大律師提出六點上訴理由要求推翻原判。" } }, { "doc_id": 157, "seg_id": 8, "translation": { "en": "The first ground of appeal complains that the trial judge seriously erred in law by completely failing to direct himself on the issue of mens rea. The judge, it is said, had forgotten that the only mens rea that could constitute the offence of blackmail was “with a view to gain for himself or another or with intent to cause loss to another”.", "zh-HK": "第一項上訴理由是指法官在指引有關法律時犯了嚴重錯誤，就是完全忽略了犯罪意圖這方面的指引，遺忘了「為使自己或另一人獲益或意圖使另一人遭受損失」是構成勒索罪的唯一犯罪意圖。" } }, { "doc_id": 157, "seg_id": 9, "translation": { "en": "In his Reasons for Verdict, the judge first quoted section 23(1) of the Theft Ordinance (Cap. 210, Laws of Hong Kong) which defines the offence of blackmail, and then set out the various elements of the offence, all of which, the judge said, had to be proved by the prosecution beyond reasonable doubt. According to the definition of blackmail under section 23(1) of the Theft Ordinance, the prosecution must prove that the defendant made a demand, that the demand was unwarranted and made with menaces, and that the defendant made the demand with a view to gain for himself or another or with intent to cause loss to another. We are satisfied that the judge only has to give a brief account, as opposed to a detailed explanation, of the various elements of the offence in his Reasons for Verdict. The judge in the present case had carefully considered the various elements of blackmail and could not be said to have overlooked any element of the offence. A judge does not have to analyze whether it is actus reus or mens rea in respect of each element, because a judgment, not being a legal treatise, need not set out and examine every single point. Furthermore, the judge is a legal professional. He only has to adjudicate on the main issues of the case. The fact that he makes no mention of an issue does not necessarily mean that he has overlooked it. The crucial thing is he must apply all the relevant elements as set out in the statutory definition of blackmail to the facts of the case in making his decisions. Viewing the Reasons for Verdict as a whole, we do not think that the judge had missed out any important legal consideration in respect of the major issues in dispute.", "zh-HK": "在判決理由中，法官首先就有關勒索罪的法律定義，將香港法例第210章盜竊條例第23(1)條原文轉錄，然後列舉該控罪的幾樣元素，並要求控方在毫無合理疑點下證明各項元素。根據盜竊條例第23(1)條勒索罪的定義，控方必須證明被告人曾提出要求，而該要求是不正當和用恫嚇的方式作出的，在作出該要求時被告人的目的是使自己或另一人獲益或意圖使另一人遭受損失。本庭認為法官在裁決理由中只要就控罪的各種元素略作解釋而不須要詳盡的列明。很明顯法官對勒索罪的幾項元素已經非常清楚加以考慮，不能說他疏忽了任何犯罪的元素。法官不須要就每一項元素分析那一樣是犯罪的行為(1)，那一樣是犯罪意圖(2)，因為判詞並不是一篇法律文獻，不必逐點分開的列明來加以分析，而法官亦是法律專業人士，只須要就案中所爭議的要點作出結論，沒有提及的並不一定表示法官是忽略了。最重要的就是他必須在判案時根據該條例就勒索罪的法律定義的各項有關元素，加以應用在案情中的事實便已足夠了。本庭並不覺得在本案的整體判決理由中法官在受爭議的要點上遺漏了任何法律上的重點。" } }, { "doc_id": 157, "seg_id": 10, "translation": { "en": "Counsel submits that, as the judge had overlooked the relevant element of the offence, he had erroneously disregarded certain issues of fact as being irrelevant to the case. Counsel also cites two examples in an attempt to illustrate that the judge accepted without hesitation all the opinion evidence of PW4. The first example is, regarding PW4’s statement during cross-examination that he understood “illicit business” to mean “mainly involved in intimidation and extortion”, the judge failed to direct himself that it was only PW4’s own view and could not be regarded as the truth. The second example is, regarding the phrase “his father’s life is in danger”, PW4 said he understood it to mean that his father might “lose his life”. Counsel submits that it was merely PW4’s own view and that the judge failed to take into account that loss of freedom was not the same as loss of life. With respect, we fail to see any substantial connection between the two examples cited by counsel and his assertion that the trial judge had failed to direct himself on mens rea. The meaning of “illicit business” as given by PW4 was plainly his own interpretation. He was certainly concerned about his father’s safety, and so it was perfectly understandable for him to infer that his father’s life might be in danger. The judge, being a legal professional, would definitely not have been influenced by PW4’s personal views or inferences; rather, he would only have guided himself with common sense. Counsel also failed to point out how the findings of fact would have been affected by the personal understanding of the witness. There is nothing in the Reasons for Verdict which suggests that the judge “accepted completely and without hesitation” PW4’s personal views and inferences. The crucial issue in the present case is whether the applicant had uttered or used any words which amounted to menaces. To an ordinary person, “illicit business” means shady business; that PW4 interpreted the term to mean “mainly involved in intimidation and extortion” was a sheer matter of degree. And whether it was his father’s liberty or life which was at stake was simply irrelevant to the issue that the judge had to determine. When his father failed to return to Hong Kong, PW4 suspected that he had lost his liberty and that his life would be in danger if the sum of $800,000 was not paid. The judge accepted PW4’s evidence and ruled that the applicant did utter the words which the judge eventually held to be menaces. We see nothing improper here and the first ground of appeal must therefore fail.", "zh-HK": "大律師指出因為法官疏忽了有關的犯罪元素所以不當地將一些事實爭議認為與案無關而不加考慮。大律師陳列兩點指法官對第四證人的意見証供不假思索地全面接受：第一，就是第四證人在作供時經盤問後將「偏門」解作「專做恐嚇勒索」，而法官卻沒有指引自己這些只是第四證人個人的見解不可作實。第二，第四證人就有關「父親生命有危險」認定他的父親可能會「無命」。大律師說：這不過是第四證人的個人意見，因為失卻自由並不等如失卻生命，而法官卻沒有加以考慮。本庭認為大律師所指的兩點與他認為原審法官忽略了犯罪意圖的指引並沒有實質上的關連。第四證人對偏門的解釋，很明顯是他個人的推論。當然他擔心父親的處境因而推斷父親的生命可能有危險是完全值得理解的，不過法官為專業人士，必定不會接受第四證人的個人意見或他的推斷所影響，他只會用常理來引導自己。大律師亦未能指出證人的個人理解對事實裁斷起了什麼作用。在裁決理由中不見得法官是「不假思索地全面接受」第四證人這些個人見解和推論。在本案中最重要的就是申請人有沒有說過恫嚇的說話或用過該等詞語。「偏門」對普通人來說是被視為不正當生意，第四證人把它理解成為「專做恐嚇勒索」，只是程度上的問題而已。至於他的父親是失去自由還是生命有危險，對法官所要判決的問題亦是無關宏旨。第四證人認為父親目前未能回港，因此懷疑他已失卻自由，如果不付80萬款項便有生命危險，法官接納第四證人的供詞，裁定申請人確曾說過這些法官最後裁定是恫嚇性的說話。本庭認為這並無不妥善之處，第一項上訴理由並不成立。" } }, { "doc_id": 157, "seg_id": 11, "translation": { "en": "The second ground of appeal contends that the trial judge’s direction on the onus and standard of proof was substantially flawed. Counsel for the applicant submits that the trial judge had misunderstood the element of “unwarranted demand”; that he had failed to differentiate between legal burden and evidential burden and simply imposed all burdens of proof on the defendant; and that, in page 4 at H-J of the Reasons for Verdict, the judge had erroneously raised the evidential standard of proof that the applicant was required to meet.", "zh-HK": "第二項上訴理由是指原審法官就刑事案中的舉證責任(3)及舉證準則(4)的指引犯了實質上的錯誤。申請人的大律師指出法官就「不當的要求」的元素有錯誤的理解，未能了解舉證的法律責任(5)與證供責任(6)的分別而籠統地將全面舉證責任加於被告，並在裁決理由第4頁H至J段法官錯誤地將申請人須負上在證據上的舉證準則提升。" } }, { "doc_id": 157, "seg_id": 12, "translation": { "en": "With regard to “unwarranted demand”, section 23(1) of the Theft Ordinance further provides that:", "zh-HK": "盜竊條例第23(1)條就有關不當的要求作出進一步規定：" } }, { "doc_id": 157, "seg_id": 13, "translation": { "en": "“…… unless the person making it does so in the belief —", "zh-HK": "“……除非作出要求的人，在如此要求時：" } }, { "doc_id": 157, "seg_id": 14, "translation": { "en": "相信他有合理的理由作出該項要求；及\tthat he has reasonable grounds for making the demand; and", "zh-HK": "(a)" } }, { "doc_id": 157, "seg_id": 15, "translation": { "en": "相信使用恫嚇是加強該項要求的適當手段。”\tthat the use of the menaces is a proper means of reinforcing the demand.”", "zh-HK": "(b)" } }, { "doc_id": 157, "seg_id": 16, "translation": { "en": "In his Reasons for Verdict, the judge construed the provision as follows:", "zh-HK": "在判決理由中，法官就這項條文作出解釋如下：" } }, { "doc_id": 157, "seg_id": 17, "translation": { "en": "“Unless the accused can prove that such a demand falls within the ambit of [section] 23(1)(b). In other words, once the prosecution proves that the demand is made with menaces, the demand is unwarranted. To rebut this, the accused has to prove it is more probable that it is not so.”", "zh-HK": "“除非被控人能證實此等要求是屬於23(1)(b)中所提及的情形。換句話說，一旦控方證明此等要求，是用恫嚇方式表達，該項要求即是不當。被控要推翻這點，得要證明並非如此的可能性比較高。”" } }, { "doc_id": 157, "seg_id": 18, "translation": { "en": "Here the judge was in fact merely repeating the relevant provisions of the Ordinance. However, judging from the last sentence of the above quote, the judge appeared to take the view that the person making the demand must prove that his demand was not made by unwarranted means.", "zh-HK": "其實在這裏法官只是覆述條例中的相關條文，不過從以上最後一句來看，法官似乎認為作出要求的人須要證明他的要求不是用不當的手段作出的。" } }, { "doc_id": 157, "seg_id": 19, "translation": { "en": "Having considered the wording of the Ordinance and the spirit of the law, we find that the last sentence of the above quote is open to question. Section 23(1) provides that if a demand is made with menaces, it is unwarranted. However, if the person making the demand genuinely believes that he has reasonable grounds for making it and that the use of the menaces is a proper means of reinforcing it, the judge should take this into account before deciding whether that person is guilty of blackmail. The prosecution is under a duty to prove beyond reasonable doubt that the person making the demand does not believe that he has reasonable grounds for making it or that the use of menaces is a proper means of reinforcing it. The person making the demand does not have to prove that he holds such a belief. If the judge directs that the person making the demand bears the burden of proving that it is more probable than not that he holds such a belief, then this is a misdirection (see Griew on Theft, p.229, 14-23; and Archbold (1998 Edn) p.1714, 21-266). Nevertheless, as counsel for the prosecution has pointed out, PW4 said that, apart from producing the note by PW4’s father and asking PW4 to hand over $800,000 to him, the applicant had uttered these words: “We are in an illicit business, but the illicit act will not be repeated” and “… if you do not pay, you should know very well what the people up there will do.” However, the applicant had in his testimony denied having ever uttered those words. It follows that the issue to be decided was whether the prosecution had proved beyond reasonable doubt that the applicant had uttered those words. If he had, then the demand made by him was unwarranted, and there would be no need for the trial judge to consider whether the applicant believed that he had reasonable grounds for making the demand or believed that the use of menaces was a proper means of reinforcing the demand. Given the trial judge was satisfied that the applicant had uttered the words in question, the misdirection in a certain legal aspect would not have created any material effect.", "zh-HK": "在考慮條例所用的字句及法律的精神後，本庭認為原審法官最後一句是值得商確的。根據第23(1)條，如果一個要求是以恫嚇的方式作出，這便屬於不當，不過如果作出要求的人確實相信自己是有合理的理由作出要求而且相信用恫嚇的方式作出要求是為加強要求的適當手段，那麼法官是應該考慮這一點才裁定他是否觸犯勒索罪。控方是有責任在毫無合理疑點下證明作出要求的人並不相信自己有合理的理由去作出該要求，又或者不相信使用恫嚇是用來加強該項要求的適當手段。作出要求的人不須要證明他自己是有這種想法。如果法官須要作出要求的人負有可能性較高的舉證責任去證明他自己有這些想法，這個指引是錯誤的(7)。不過，正如控方大律師所指出，在本案中第四證人說申請人除了出示第四證人父親的便條及要求他交80萬元給他外還說過一些說話，就是「我哋撈偏門嘅，一偏唔可以再偏」和「… 你如果唔畀錢，上高啲人會點樣做，你應該好清楚。」但申請人在他作供時卻否認曾經有說過這些話，因此在本案中所要裁定的是控方可否在毫無合理疑點下證明申請人確實曾經說過這番話。如果是有，那麼申請人所作出的要求是不正當的，而原審法官就不再須要考慮申請人是否相信他作出的要求有沒有合理的理由或使用恫嚇是加強他的要求的適當手段。原審法官已信納申請人曾說過這些話，所以在一方面的法理誤導對本案並沒有起實質作用。" } }, { "doc_id": 157, "seg_id": 20, "translation": { "en": "Counsel for the applicant submits that the prosecution had no evidence to prove that the words uttered by the applicant had heightened PW4’s fear, because PW4 had been concerned about his father’s safety even before he met the applicant. Therefore, counsel argues, the words uttered by the applicant did not constitute menaces. With respect, we do not agree. The question was whether the demand for payment made by the applicant to PW4 was unwarranted and made with menaces. In the circumstances of this case, the fact that the judge was satisfied beyond reasonable doubt that the applicant had indeed uttered those words clearly indicates that the demand was accompanied by menaces and therefore unwarranted. Any reasonable person would no doubt have felt the same upon hearing the words uttered by the applicant. PW4, who was already worried about his father’s safety, would certainly become even more concerned when the applicant uttered those words, and this explains why arrangements for the payment were made. Therefore, it cannot be said that the demand made by the applicant did not constitute menaces. The second ground of appeal falls away.", "zh-HK": "至於申請人大律師指出控方沒有證據證明申請人所說的話增加了第四證人驚慌的程度，因為第四證人在未與申請人會面時已經擔心他父親的安全，所以申請人所說的話並不構成恫嚇。本庭並不同意。問題是申請人向第四證人要求付款時，他的要求是不是不當和用恫嚇的方式作出。在本案的情況下，如果法官能在毫無合理疑點下信納申請人確曾說過那些話，這已很清楚指明申請人的要求是帶有恫嚇和不當的。任何有理性的人聽到申請人所說的那幾句說話，必定會有這種感受。第四證人本來是擔心父親的安全，經過申請人這番說話後，肯定會更加擔心，所以才作出付款的安排。因此不能說申請人所作出的要求不構成恫嚇。第二項上訴理由並不成立。" } }, { "doc_id": 157, "seg_id": 21, "translation": { "en": "In the third ground of appeal it is contended that, in relation to the demand made by the applicant, the trial judge was wrong in concluding that “in the absence of other evidence, the only possibility was to gain for himself.” (transcript, page 8 at M). Counsel for the applicant submits that this was a “specific intent” and the prosecution must prove that the applicant did intend to gain for himself, and since the prosecutor had failed to do so, the inference drawn by the judge was wrong. In our judgment, it is clear from the evidence that the applicant did ask PW4 to give him $800,000, in other words, the applicant wanted to collect this sum of money. It is immaterial whether the applicant would then pass the money on to the people in the mainland or how the money would be distributed. The crucial point is PW4 was actually made liable for and required to pay this sum of money and incurred loss as a result. The third ground of appeal must fail.", "zh-HK": "第三上訴理由是，申請人大律師指法官錯誤裁定申請人所作出的要求「在沒有其他證據之下唯一的可能是為自己利益出發。」(謄本第8頁M。)大律師指出這是“特定犯罪意圖”(8)，因此控方必須證明申請人確實是有意為自己爭取利益，不過檢控官並不能證實這點，原審法官的推論便是不正確。本庭認為根據本案證供，申請人很明顯是要求第四證人交80萬元給他，即申請人要收取這筆款項。至於後來申請人是不是將它全數交給國內的人士或如何分配該筆款項並不重要，最重要是第四證人確實要承擔及付出這筆款項，因此造成損失。第三項上訴理由並不成立。" } }, { "doc_id": 157, "seg_id": 22, "translation": { "en": "The fourth and fifth grounds of appeal are directed at the evidence given by PW4 and the applicant at trial. Counsel for the applicant submits that the trial judge had adopted an incorrect procedure in determining the credibility of the prosecution witnesses. Counsel points out that the judge indicated that he could believe PW4 even before he had heard all the evidence from both sides, and that, although there were discrepancies in PW4’s evidence, the judge considered that it had no bearing whatsoever on the credibility of the witness. Counsel further submits that PW4, being a university student and hence an educated person, did not make any allegations of blackmail in the first three statements he gave to the police and made such allegations only in the fourth statement. Furthermore, the judge accepted PW4’s demeanour in giving evidence but considered that there were discrepancies in the applicant’s evidence, for example, the judge noted that the applicant “kept a distance from the matter and returned to Hong Kong on his own” and equated confinement with loss of freedom of movement. Counsel contends that the judge had seriously misunderstood the facts and had unfairly regarded the applicant’s lawful exercise of his right of silence as incomprehensible.", "zh-HK": "第四及第五項上訴理由是有關第四證人及申請人在庭上的供詞。申請人大律師指出原審法官就決定控方證人可信性方面所採取的程序是不正確的。他說法官在未聽完雙方證供之前已經表示他可以相信控方第四證人。而且第四證人的口供出現前後不符時，法官卻認為對證人的可信性並無絲毫影響。大律師更指出第四證人身為大學生是知識份子，卻在警方調查時最初的三份口供中竟然說不出任何勒索的指控而要到第四份口供中才有這些指控。法官並接受第四證人作供時的態度。相反申請人作供時法官卻認為證供前後不符，例如法官指申請人「置身事外，逕自回港」，又將軟禁等同行動不自由。法官對案情嚴重誤解，對申請人依法行使緘默權看作難以理解是不公平的。" } }, { "doc_id": 157, "seg_id": 23, "translation": { "en": "In the course of trial, the judge had had the opportunity to observe the demeanour of the witnesses and consider PW4’s state of mind after the incident. In considering the evidence of individual witnesses, the judge had also taken into account all the evidence including the testimony of other witnesses as well as the credibility and reasonableness of their evidence. The trial judge was in a better position than the appellate court in assessing the evidence of the witnesses.", "zh-HK": "本庭認為法官在聆訊過程中有機會看見證人作供的言行舉止，又考慮到第四證人在事發後的心情。在考慮每一名證人的證供時，法官是會同時參考所有的證供包括其他證人的證言，以及他們證供的可信性及合理性。原審法官對證人作供的評估，條件比上訴庭優勝。" } }, { "doc_id": 157, "seg_id": 24, "translation": { "en": "The applicant had never denied that he met PW4 through arrangements, and then gave PW1’s note and credit card to PW4 and related the incident to him. These are all undisputed facts. The applicant’s defence was that he delivered the items to PW4 upon PW1’s instruction only. This was of course in conflict with the evidence of PW1 and PW4. After careful consideration and analysis, the judge concluded that he believed the evidence of the prosecution witnesses. He also appreciated why PW4 did not give a detailed account of the incident to the police. The judge considered PW4’s evidence credible and was satisfied beyond reasonable doubt that the applicant did make an unwarranted demand to PW4 with menaces in the manner described in PW4’s evidence. The judge found that PW4 would also understand those words to mean menaces, and hence the applicant had made the demand with a view to gain for himself or cause loss to the witness. The judge also held that the fact that the applicant uttered those words under the given circumstances showed that he would never believe that he had reasonable grounds for making the demand or believe that those words were a proper means to reinforce the demand. The applicant’s defence was apparently rejected by the judge, and the judge had valid reasons for disbelieving the applicant’s evidence. We are satisfied that the judge’s verdict was correct. The fourth and fifth grounds of appeal must also fail.", "zh-HK": "申請人並無否認是經過安排後與第四證人見面，他將第一證人的便條及信用咭交給第四證人並向他陳述過程，這些都是雙方沒有爭議的事實。申請人答辯的理由是他只是受第一證人委託才向第四證人作出傳遞。這當然與第一及第四證人的口供不相符。不過經過詳細考慮及分析後法官相信控方證人的口供，亦理解第四證人在接受警方調查時不詳細地說明事件始末的原因，因此認為第四證人的證言可信，而在毫無合理的疑點下接受第四證人的證供認為申請人確實曾經向第四證人用恫嚇方式作出不當的要求。法官認為第四證人聽了他的說話後亦是這樣理解，所以申請人的要求是意圖有所得益或令到證人蒙受損失，因為在這種情況之下說出這種說話顯示申請人根本並不會相信他的要求是有合理的理由，亦不會相信這是可以加強要求的適當手段。申請人的辯護理由，顯然並不為法官所接納，法官之所以不相信申請人的證供是有合理依據的。本庭認為法官的裁定是正確的。第四及第五項上訴理由亦不成立。" } }, { "doc_id": 157, "seg_id": 25, "translation": { "en": "The sixth ground of appeal, which is contained in the written grounds of appeal prepared by counsel, complains that, by asking questions, making comments and interrupting for more than a hundred times, the trial judge had improperly and completely deprived the applicant of his right to cross-examine the prosecution witnesses effectively and hence his right to a fair trial. In his submission, counsel complains that the judge asked questions, made comments and interrupted so frequently that the applicant was unable to attack the credibility of PW4 effectively. Counsel also submits that the judge failed to consider that, even if the applicant did utter the words in question to PW4, they would have no actual influence on the witness. As can be seen from the transcript of PW4’s evidence, the judge asked questions for the sole purpose of seeking clarification of the answers of the witnesses or the questions of counsel. He also made fair rulings where appropriate in respect of questions put by counsel for both sides. Furthermore, the judge repeatedly reminded PW4 to listen to and answer questions carefully. Most importantly, after carefully going through the transcript, we do not think that the questions or interventions of the judge had affected the applicant and his counsel in questioning the witnesses or prevented the applicant from putting forward the particulars of his defence. Nor do we think that the judge had in any way been unfair to the applicant. The sixth ground of appeal also fails.", "zh-HK": "至於第六項上訴理由，在擬定的上訴理由中大律師指出原審法官錯誤地通過超一百次的發問，評論及阻撓，徹底地剝奪了申請人有效盤問控方證人的權力，而令他得不到公平的審訊。在陳詞時，大律師除了陳述法官曾多次發問，評論及阻撓，引至申請人未能有效地攻擊第四證人的可信性外，更指出就算申請人真是如此這般向第四證人說出這番話，實際上對證人並無影響，不過法官並沒有考慮這點。從第四證人供詞的謄本中可以看出，法官的發問只是澄清證人的答案或律師的問題，法官亦公正地就雙方律師的提問在適當時候作出裁決，此外法官亦多次提醒第四證人要聽清楚問題，不要胡亂作答等。最重要的是：經過詳細考慮謄本後，本庭並不認為法官的發問或干預有影響申請人及他的律師向證人提問及使申請人可以表達他的答辯詳情，也不覺得法官對申請人有任何不公平的地方。第六項上訴理由亦不成立。" } }, { "doc_id": 157, "seg_id": 26, "translation": { "en": "For the above reasons, we are satisfied that the judge’s verdict had a solid factual basis and accorded with the relevant provisions. The verdict was not unfair to the applicant. None of the grounds of appeal is established and this application for leave to appeal falls to be dismissed.", "zh-HK": "基於上述理由，本庭認為法官的裁決是有事實的根據及遵守有關的法律條文，亦沒有對申請人不公正，因此各項上訴理由全部不成立，上訴申請必須駁回。" } }, { "doc_id": 157, "seg_id": 27, "translation": { "en": "由楊若全大律師(卡永利，湛耀強律師行)代表\tMr Yeung Yeuk Chuen, instructed by Karbhari & Cham, for the applicant.", "zh-HK": "上訴申請人 :" } }, { "doc_id": 157, "seg_id": 28, "translation": { "en": "由張維新(高級助理刑事檢控專員)及王詩麗(政府律師) 代表\tMr Patrick Cheung, Senior Assistant Director of Public Prosecutions and Ms Wong Sze Lai, Government Counsel, for the respondent.", "zh-HK": "上訴答辯人 :" } }, { "doc_id": 158, "seg_id": 1, "translation": { "en": "Hon Yeung JA (giving the Judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案書：" } }, { "doc_id": 158, "seg_id": 2, "translation": { "en": "The applicant Lam Yung-yung and 8 other defendants were charged with one count of conspiracy to defraud before Deputy District Judge A. Yuen. The prosecution alleged that the applicant and her conspirators conspired to defraud a number of finance companies of loans by means of some false documents in the period between May and November 2006.", "zh-HK": "申請人林容容和其他8名被告人在區域法院暫委法官阮偉明席前被控一項串謀詐騙罪。控方指申請人和其同謀在2006年5月至11月期間，串謀以一些虛假文件詐騙多間財務公司以獲得貸款。" } }, { "doc_id": 158, "seg_id": 3, "translation": { "en": "The applicant pleaded not guilty but was convicted of the charge after trial. The applicant now applies to this court for leave to appeal against conviction.", "zh-HK": "申請人否認控罪，但經審訊後遭裁定罪名成立。申請人不服定罪，現向本庭提出上訴許可申請，希望能獲准就定罪上訴。" } }, { "doc_id": 158, "seg_id": 4, "translation": { "en": "Facts not disputed", "zh-HK": "無爭議的案情" } }, { "doc_id": 158, "seg_id": 5, "translation": { "en": "At the material times, a number of people applied for loans from various finance companies on numerous occasions by means of false documents. The applicant was involved in one of them. The evidence shows that the applicant successfully obtained a loan of $8,000 from Public Finance Limited on 8 November 2006. The applicant provided to Public Finance Limited a false proof of employment, which showed that she was employed as a saleslady by Digital Crown Holdings (HK) Ltd. at a monthly salary of $7,500. At the same time, the applicant provided her correct residential address at San Po Kong in support of her application for a loan. In fact, Digital Crown Holdings (HK) Ltd. had never employed her as a saleslady. And the employment record supplied by the applicant, which showed that she was in the employ of Digital Crown Holdings (HK) Ltd., was also a forged document.", "zh-HK": "在案發時段，有多人多次以虛假文件向不同財務公司貸款，其中一宗涉及申請人。證據顯示，2006年11月8日，申請人成功向大眾財務取得8,000元貸款。申請人向大眾財務提交了一份虛假工作證明，顯示她在一間名為亮碧思集團有限公司任職售貨員，月薪7,500元。申請人同時提供了其新蒲崗的正確住址支持貸款申請。事實上亮碧思集團沒有聘請過她為售貨員，而申請人提供的僱傭記錄顯示她受僱於亮碧思集團亦是偽造的。" } }, { "doc_id": 158, "seg_id": 6, "translation": { "en": "With the exception of the applicant, all the other 8 defendants in the case pleaded guilty to the charge. Some of the defendants claimed that the 9th defendant Ng Fei-tat was the mastermind. They also claimed that he not only arranged for the other defendants to apply for loans from financial institutions by means of false documents, but also subjected the 2nd defendant (Ma Pui-man), the 4th defendant (Chu Pui-yin), the 5th defendant (Lau Oi-ying) and the 6th defendant (Lee Ka-yan) in the case to threats in order to get their cooperation.", "zh-HK": "除了申請人外，案件的其餘8名被告人都承認控罪。部份被告人指第9被告人伍飛達是案件的主腦，他不但安排各其他被告人以虛假文件向財務機構申請貸款，更曾威嚇案件中的第二被告人（馬佩雯）、第四被告人（朱沛賢）、第五被告人（劉藹瑩）和第六名被告人（李家恩），以取得她們的合作。" } }, { "doc_id": 158, "seg_id": 7, "translation": { "en": "Despite his plea, Ng Fei-tat denied having ever threatened any of the defendants. As a result, the trial judge had to hear evidence from them and make relevant findings before passing sentence. In the end, the trial judge found that the prosecution had failed to prove that Ng Fei-tat had in fact threatened Ma Pui-man, Chu Pui-yin, Lau Oi-ying or Lee Ka-yan.", "zh-HK": "雖然伍飛達承認控罪，但他否認曾威嚇任何被告人，故原審法官要聆聽她們的證供，作出有關裁決後才判刑。最終原審法官裁定控方未能證明伍飛達確有威嚇過馬佩雯、朱沛賢、劉藹瑩或李家恩。" } }, { "doc_id": 158, "seg_id": 8, "translation": { "en": "The applicant pleaded not guilty to the charge on the basis that she did not cooperate with Ng Fei-tat voluntarily in obtaining a loan from Public Finance Limited by means of a false document. She claimed that she committed the offence because she had been put under duress exerted by Ng Fei-tat. Therefore, she should not be convicted.", "zh-HK": "申請人否認控罪的基礎是她並非是自願和伍飛達合作，以虛假文件向大眾財務取得貸款。她指是受到伍飛達的威嚇，才作出犯罪行為，因此她不應遭判罪名成立。" } }, { "doc_id": 158, "seg_id": 9, "translation": { "en": "Evidence from prosecution witnesses", "zh-HK": "控方證人的證供" } }, { "doc_id": 158, "seg_id": 10, "translation": { "en": "There were four witnesses, namely Ma Pui-man, Chu Pui-yin, Lau Oi-ying and Lee Ka-yan, whose evidence was directly concerned with the applicant.", "zh-HK": "和申請人直接有關的證人有四位，即馬佩雯、朱沛賢、劉藹瑩和李家恩。" } }, { "doc_id": 158, "seg_id": 11, "translation": { "en": "Ma Pui-man said that after making the acquaintance of Ng Fei-tat in early 2006, Ng Fei-tat asked her to introduce some friends to him in order to help him borrow money from finance companies. Ma Pui-man stated that she had introduced the 4th, 5th and 6th defendants and the applicant to Ng Fei-tat. Ma Pui-man agreed to call the applicant and arrange for a meeting in early November 2006. At the meeting, Ng Fei-tat gave some documents to the applicant and asked her to approach Public Finance Limited for loans. Ma Pui-man denied ever threatening the applicant. Nor did she hear Ng Fei-tat making threats to the applicant.", "zh-HK": "馬佩雯指在2006年初認識了伍飛達後，伍飛達要她介紹一些朋友給他以幫他向財務公司借錢。馬佩雯表示曾介紹過第四、五、六被告人和申請人給伍飛達認識。馬佩雯同意在2006年11月初致電申請人並安排會面。會面時，伍飛達交了一些文件給申請人，叫她到大眾財務借錢。馬佩雯否認有威嚇申請人，亦表示沒有聽到伍飛達有威嚇申請人。" } }, { "doc_id": 158, "seg_id": 12, "translation": { "en": "Chu Pui-yin stated that she agreed to cooperate with Ng Fei-tat because the latter had threatened her that he would get someone to splash her home with red paint if she did not agree to cooperate.", "zh-HK": "朱沛賢指她答應和伍飛達合作，原因是伍飛達恐嚇她，如她不同意，伍飛達會找人到她的家淋紅油。" } }, { "doc_id": 158, "seg_id": 13, "translation": { "en": "Lau Oi-ying also came to know Ng Fei-tat through Ma Pui-man. Subsequently, Ng Fei-tat asked her to take out loans from finance companies and if she succeeded, she would get 50% of the loan as her reward. Lau Oi-ying stated that she refused to cooperate at the beginning but she later agreed to cooperate because Ng Fei-tat threatened her that he would get someone to splash her home with red paint.", "zh-HK": "劉藹瑩亦是透過馬佩雯認識伍飛達。其後伍飛達要她向財務公司借錢，成功後她會得到貸款50% 為報酬。劉藹瑩表示當初拒絕合作，但伍飛達威嚇會找人到她家淋紅油，所以才答應和他合作。" } }, { "doc_id": 158, "seg_id": 14, "translation": { "en": "指伍飛達威嚇各人後，一些被告人才同意和伍飛達合作。\tLau Oi-ying was acquainted with the applicant. She agreed that she met Ng Fei-tat and several defendants including the applicant at Mongkok in early November 2006. At that time, Ng Fei-tat asked them to take out loans for him from finance companies by using false documents. But all of them refused. Lau Oi-ying stated that some of the defendants agreed to cooperate with Ng Fei-tat only after Ng Fei-tat had threatened them.", "zh-HK": "劉藹瑩認識申請人，她同意在2006年11月初在旺角和伍飛達和數名被告，包括申請人會面。當時伍飛達要求各人替他到財務公司以虛假文件貸款，但各人都拒絕。劉藹瑩" } }, { "doc_id": 158, "seg_id": 15, "translation": { "en": "Lee Ka-yan also made similar allegations. She emphasized that she agreed to cooperate with Ng Fei-tat to take out loans from finance companies using false documents only because he had threatened her. She stated that the applicant did refuse Ng Fei-tat’s request but she did not notice whether or not Ng Fei-tat had threatened the applicant.", "zh-HK": "李家恩亦有作出同類的指控，她強調曾遭伍飛達威嚇，才同意和他合作用虛假文件向財務公司借錢。李家恩表示申請人有拒絕伍飛達的要求，但沒有留意到伍飛達是否有威嚇申請人。" } }, { "doc_id": 158, "seg_id": 16, "translation": { "en": "Defence", "zh-HK": "答辯理由" } }, { "doc_id": 158, "seg_id": 17, "translation": { "en": "The applicant did not give evidence for her defence. Nor did she call any witness. She agreed that she did in fact, at the request of Ng Fei-tat, take out a loan from Public Finance Limited by using a false document and did get part of the loan as her reward.", "zh-HK": "申請人沒有作供自辯，亦沒有傳召證人為她作供。申請人同意確有應伍飛達的要求以虛假文件成功向大眾財務貸款，並有收取部份貸款作為酬勞。" } }, { "doc_id": 158, "seg_id": 18, "translation": { "en": "However, the applicant pointed out that there was evidence to show that she did not cooperate with Ng Fei-tat voluntarily but succumbed because Ng Fei-tat had subjected her to duress. The applicant’s stance was that in the circumstances, as she did not take part in the conspiracy to defraud voluntarily and she was not dishonest, she should not be held liable for the crime.", "zh-HK": "但申請人指出有證供顯示她並非自願和伍飛達合作，而是因曾受伍飛達威嚇才屈服。申請人的立場是在上述情況下，她並非自願參與串謀詐騙，亦非不誠實，故不應負上刑責。" } }, { "doc_id": 158, "seg_id": 19, "translation": { "en": "The trial judge’s verdict", "zh-HK": "原審法官的裁決" } }, { "doc_id": 158, "seg_id": 20, "translation": { "en": "The trial judge pointed out that the 1st to 8th defendants had agreed to cooperate with Ng Fei-tat to take out loans from financial companies by using false documents but only Ma Pui-man, Chu Pui-yin, Lau Oi-ying and Lee Ka-yan claimed that Ng Fei-tat had subjected them to duress. The other defendants including the 1st defendant Tam Man-yee did not claim that Ng Fei-tat had threatened them. The trial judge pointed out that as Ma Pui-man, Chu Pui-yin, Lau Oi-ying and Lee Ka-yan were friends and they made the same allegation, he had reservation over it.", "zh-HK": "原審法官指出第一至第八名被告人同意和伍飛達合作，以虛假文件向財務公司貸款，但只有馬佩雯、朱沛賢、劉譪瑩和李家恩指曾受伍飛達威嚇。其他被告人包括第一被告人譚敏儀都沒有指伍飛達有威嚇過她們，原審法官指出馬佩雯、朱沛賢、劉藹瑩和李家恩是朋友，她們作出相同指控，所以他對該指控有所保留。" } }, { "doc_id": 158, "seg_id": 21, "translation": { "en": "The trial judge was of the view that even if Ng Fei-tat had actually subjected some of the defendants, including the applicant, to duress, the applicant still could not plead duress as her defence in order to exonerate herself from the crime.", "zh-HK": "原審法官認為即使伍飛達確有對部份被告人，包括申請人作出威嚇，申請人亦不能以受威嚇作為無罪的辯護理由。" } }, { "doc_id": 158, "seg_id": 22, "translation": { "en": "The trial judge pointed out that in order to rely on the defence of duress to exonerate oneself, the duress must be so serious that it must be to cause death or serious injury to the defendant or to others. Threats of assault or splashing of red paint would not suffice. The trial judge also stressed that the applicant had the opportunity to seek help from her family, friends or even the police.", "zh-HK": "原審法官指出要以受威嚇為無罪的辯護理由，威嚇必需嚴重到構成對被告人或其他人造成死亡或嚴重傷害，而非只是毆打或淋紅油等威嚇。原審法官亦強調申請人有機會向家人，朋友甚至警方要求協助。" } }, { "doc_id": 158, "seg_id": 23, "translation": { "en": "The trial judge found that the defence of duress was not available to the applicant and convicted her of the offence of conspiracy to defraud accordingly.", "zh-HK": "原審法官認為申請人不能以受威嚇作為辯護理由，所以裁定申請人串謀詐騙罪罪名成立。" } }, { "doc_id": 158, "seg_id": 24, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 158, "seg_id": 25, "translation": { "en": "Mr. Peter Chow, counsel for the applicant, raised a number of grounds of appeal and elaborated them in further details in his skeleton written submission.", "zh-HK": "代表申請人的周柏柱大律師提出多項的上訴理由。在其書面陳詞大綱，周大律師亦詳細地闡述該些理由。" } }, { "doc_id": 158, "seg_id": 26, "translation": { "en": "Mr. Chow complained that the trial judge failed to deal with the defence raised by the applicant properly and correctly.", "zh-HK": "周大律師指原審法官沒有適當及正確地處理申請人的辯護理由。" } }, { "doc_id": 158, "seg_id": 27, "translation": { "en": "Mr. Chow pointed out that as revealed by the summary of facts of the prosecution, Tam Man-yee, Ma Pui-man, Chu Pui-yin, Lau Oi-ying and Lee Ka-yan had all alleged that they had been subjected to duress exerted by Ng Fei-tat before they agreed to his request to take out loans from financial institutions by using false documents. Therefore, the trial judge should not have had any reservation over such allegation of theirs.", "zh-HK": "周大律師指出在控方的案情撮要，譚敏儀、馬佩雯、朱沛賢、劉譪瑩和李家恩都指曾遭伍飛達威嚇才答應他以虛假文件向財務機構貸款，因此原審法官不應對她們的該項指稱有任何保留。" } }, { "doc_id": 158, "seg_id": 28, "translation": { "en": "Mr. Chow submitted that the trial judge failed to consider properly whether the applicant had been put under duress. He stressed that the applicant should still be found not guilty even if it was only likely that she had been put under duress.", "zh-HK": "周大律師指原審法官沒有適當地考慮申請人是否受到威嚇。周大律師強調即使申請人只是可能受到威嚇，亦應被判無罪。" } }, { "doc_id": 158, "seg_id": 29, "translation": { "en": "Mr. Chow also emphasized that the mere threats uttered by Ng Fei-tat of splashing red paint at the applicant’s home or assaulting her did not necessarily fail to found the defence of duress. He submitted that the trial judge failed to deal with this issue properly.", "zh-HK": "周大律師亦強調，伍飛達只是恐嚇會到申請人的家淋紅油或毆打她，不一定不能構成“威嚇”的答辯理由。周大律師指原審法官並沒有適當地處理這個問題。" } }, { "doc_id": 158, "seg_id": 30, "translation": { "en": "Mr. Chow argued that the trial judge should have firstly found whether or not the applicant had been subjected to threats uttered by Ng Fei-tat of splashing red paint at her home or assaulting her, and then determined whether those threats (if any) could have founded the defence of duress. Mr. Chow stressed that the trial judge should have still found the applicant not guilty if he could not be sure whether or not she had been put under duress. He also said that the trial judge had failed to consider the personal background of the applicant including factors like her youth and immaturity. As a result, the trial judge reached a verdict which was unfair to the applicant.", "zh-HK": "周大律師認為原審法官應先裁定申請人是否有受伍飛達恐嚇會到她的家淋紅油或毆打她，再裁定該些恐嚇（如有的話）能否構成“威嚇”的答辯理由。周大律師強調如原審法官不能肯定申請人是否曾被威嚇，亦應裁定她罪名不成立。周大律師亦指原審法官沒有將申請人的個人背景包括她年紀輕，不成熟等因素考慮在內，達致一項對申請人不公平的裁決。" } }, { "doc_id": 158, "seg_id": 31, "translation": { "en": "Mr. Chow stressed the point strongly that the applicant only received a reward of $1,200 in the incident and she fully repaid the loan two months after the granting of it. Coupled with the fact that she had supplied her correct address to Public Finance Limited, all these showed that the applicant had not acted dishonestly.", "zh-HK": "周大律師力稱申請人在事件中只獲得1,200元酬勞，而她亦在獲得貸款後兩個月內便清還貸款，加上她有向大眾財務提交正確地址等等因素都顯示申請人並非不誠實行事。" } }, { "doc_id": 158, "seg_id": 32, "translation": { "en": "Mr. Chow argued strongly that the applicant in fact did not have the mens rea in the incident. But the trial judge failed to assess the evidence properly nor give sufficient reasons for his verdict. Therefore, the conviction of the applicant was unsafe.", "zh-HK": "周大律師力稱事件中申請人其實並沒有犯罪的意圖，而原審法官卻沒有適當地評估證供，亦沒有就其裁決給予充份的理由，因此裁定申請人罪名成立是不穩妥的。" } }, { "doc_id": 158, "seg_id": 33, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 158, "seg_id": 34, "translation": { "en": "The evidence adduced by the prosecution against the applicant was very simple and also undisputed. The applicant made use of the false document and information provided to her by Ng Fei-tat to falsely claim that she was employed as a saleslady by Digital Crown Holdings (HK) Ltd. at a monthly salary of $7,500 and successfully obtained a loan of $8,000 from Public Finance Limited. The applicant gave Ng Fei-tat $6,800 and kept $1,200 as the reward for herself.", "zh-HK": "控方指控申請人的證據是非常簡單，亦是沒有爭議的。申請人利用伍飛達向她提供的虛假文件及資料訛稱自己受僱於亮碧思集團為售貨員，月薪7,500元，成功向大眾財務取得8,000元的貸款。申請人將6,800元交了給伍飛達，自己則保留1,200元作為酬勞。" } }, { "doc_id": 158, "seg_id": 35, "translation": { "en": "The above undisputed facts showed that there was an agreement between the applicant and Ng Fei-tat to defraud Public Finance Limited. Any reasonable person would have certainly found that the acts of the applicant were improper and dishonest. The applicant herself also would have certainly thought that such acts were improper and dishonest. Otherwise she would not have claimed that she had acted under duress.", "zh-HK": "上述無爭議的案情顯示申請人和伍飛達有協議詐騙大眾財務。任何合情合理的人士都必然認為申請人的行為不當，亦是不誠實。申請人本人亦必然認為該行為不當及不誠實，否則她不會指自己是在別人威嚇下行事。" } }, { "doc_id": 158, "seg_id": 36, "translation": { "en": "The argument advanced by Mr. Chow that the applicant did not have the mens rea and had not acted dishonestly was not at all convincing. The fact that the applicant had supplied her true address and made full repayment of the loan to Public Finance Limited afterwards could not refute that the applicant had the mens rea and had acted dishonestly.", "zh-HK": "周大律師指申請人不具犯罪意圖及並非不誠實行事根本不具任何說服力。申請人有填報真確地址及在事後向大眾財務清還貸款都不能推反申請人具有犯罪意圖及是不誠實行事。" } }, { "doc_id": 158, "seg_id": 37, "translation": { "en": "The only important point in this case is whether the defence of duress raised by the applicant can be established.", "zh-HK": "案件的重點只是申請人提出“受威嚇”辯護理由能否成立。" } }, { "doc_id": 158, "seg_id": 38, "translation": { "en": "Ma Pui-man, Chu Pui-yin, Lau Oi-ying and Lee Ka-yan all claimed that they agreed to cooperate with Ng Fei-tat to defraud finance companies of money because they had been threatened by him. It was also mentioned in the prosecution’s summary of facts that under caution, Ma Pui-man, Chu Pui-yin, Lau Oi-ying and Lee Ka-yan had claimed that they all had been threatened by Ng Fei-tat. But the trial judge and the prosecution did not necessarily have to accept such claims.", "zh-HK": "馬佩雯、朱沛賢、劉譪瑩和李家恩都指曾受伍飛達恐嚇才答應和他合作騙取財務公司金錢。控方的案情撮要亦有提及在警誡下馬佩雯、朱沛賢、劉譪瑩和李家恩都指曾受伍飛達的恐嚇，但主審法官及控方不一定接納她們的指稱。" } }, { "doc_id": 158, "seg_id": 39, "translation": { "en": "The trial judge obviously had doubts about those claims and so he decided to hear evidence from Ma Pui-man, Chu Pui-yin, Lau Oi-ying and Lee Ka-yan before he would determine the said issue.", "zh-HK": "主審法官明顯對該些指稱抱有懷疑，所以決定先聆聽馬佩雯、朱沛賢、劉藹瑩和李家恩的證供後，才在上述議題作出定奪。" } }, { "doc_id": 158, "seg_id": 40, "translation": { "en": "In fact, there was no direct evidence to show that the applicant had been threatened in any manner by Ng Fei-tat or others which resulted in her taking part in defrauding Public Finance Limited.", "zh-HK": "事實上，亦沒有任何直接證據證明申請人有受過伍飛達或其他人的任何恐嚇導致她參與詐騙大眾財務的罪行。" } }, { "doc_id": 158, "seg_id": 41, "translation": { "en": "Ma Pui-man denied having threatened the applicant. Nor did she hear Ng Fei-tat threatening her. Chu Pui-yin did not say that she heard Ng Fei-tat threatening the applicant. Lau Oi-ying said that Ng Fei-tat had threatened to get someone to splash red paint at her home. She also said that in the meeting in early November 2006, Ng Fei-tat requested her and other defendants including the applicant to take out loans with finance companies by making use of false documents. All of them refused. And some defendants agreed to cooperate with Ng Fei-tat only after he had threatened them. Lau Oi-ying did not state clearly that Ng Fei-tat had threatened the applicant or by what means or in what language he had threatened her. Nor did she say that the applicant succumbed to the threats.", "zh-HK": "馬佩雯否認有威嚇申請人，亦沒有聽到伍飛達有威嚇申請人。朱沛賢沒有說有聽過伍飛達有威嚇過申請人。劉藹瑩指伍飛達威嚇會找人到她家淋紅油，劉藹瑩亦指在2006年11月初的會面時，伍飛達曾要求她和其他被告人包括申請人利用虛假文件向財務公司貸款，各人拒絕而在伍飛達的威嚇下一些被告人才同意和伍飛達合作。劉藹瑩沒有明確指出伍飛達有威嚇申請人或以甚麼方法或語言恐嚇，亦沒有指明申請人有受威嚇而屈服。" } }, { "doc_id": 158, "seg_id": 42, "translation": { "en": "Lee Ka-yan stated all the more clearly that she did not notice whether the applicant was put under any duress by Ng Fei-tat.", "zh-HK": "李家恩更表明並沒有留意到申請人是否有受伍飛達的任何威嚇。" } }, { "doc_id": 158, "seg_id": 43, "translation": { "en": "More importantly, the applicant did not give evidence and there was in fact no evidence to show that she had been indeed threatened by anyone, or the nature of the threat, or the influence that the threat (if any) had on her.", "zh-HK": "更重要的是申請人沒有作供，根本上沒有證據顯示她確有受任何人威嚇及威嚇的性質或威嚇（如有的話）對她的影響。" } }, { "doc_id": 158, "seg_id": 44, "translation": { "en": "In the said circumstances, there is in fact no sufficient basis for the applicant to rely on in order to raise the defence that she participated in the crime under duress.", "zh-HK": "在上述情況下，指申請人受威嚇而參與罪行的答辯理由根本沒有足夠基礎提出。" } }, { "doc_id": 158, "seg_id": 45, "translation": { "en": "Rightly as the trial judge pointed out, even if the case was dealt with in the most favourable light to the applicant, the relevant evidence at the most only showed that Ng Fei-tat had indicated to the applicant that her home would be splashed with red paint or she would be assaulted.", "zh-HK": "誠如原審法官正確指出，即使以對申請人最有利的角度處理案件，有關的證據最多顯示伍飛達有向申請人表示會到她的家淋紅油或毆打她。" } }, { "doc_id": 158, "seg_id": 46, "translation": { "en": "In R v Hasan [2005] 2 AC 467, the English Court of Appeal stated clearly that in deciding whether duress could afford a defence to the commission of crime, the court should consider three factors: (1) the nature of the threat; (2) the efficacy of the threat and (3) the offences and characters that the availability of that defence would exclude.", "zh-HK": "在R v Hasan [2005] 2AC 467案英國上訴法庭 表明，“威嚇”作能否作為犯罪行為的答辯理由，法庭要考慮三項因素（一）威嚇的性質；（二）威嚇的說服力及（三）該答辯理由應排除的罪行和人物。" } }, { "doc_id": 158, "seg_id": 47, "translation": { "en": "All the authorities stated clearly that to found a defence of duress to an offence, the threat must be such as to involve death or grievous bodily harm.", "zh-HK": "所有案例都表明要構成罪行的答辯理由，“威嚇”必需是涉及死亡或嚴重人身傷亡的威嚇。" } }, { "doc_id": 158, "seg_id": 48, "translation": { "en": "It was also held in R v Quayle [2005] 1 WLR 3642 that to found a defence to the crime, the threat concerned must be imminent and related to physical injury.", "zh-HK": "R v Quayle [2005] 1WLR 3642案亦表明要構成罪行的答辯理由，有關威嚇必需是即將發生及和身體損傷有關的。" } }, { "doc_id": 158, "seg_id": 49, "translation": { "en": "Lord Bingham identified 7 limitations of the duress defence in R v Z [2005] 2 AC 467 as follows:", "zh-HK": "Lord Bingham法官在R v Z [2005] 2AC 467案列明“威嚇”作為答辯理由需受到下列7項因素所限：" } }, { "doc_id": 158, "seg_id": 50, "translation": { "en": "“威嚇”的答辯理由不適用於謀殺、企圖謀殺或某些叛國罪行；\t“(1)\t\tDuress does not afford a defence to charges of murder, attempted murder and some forms of treason;", "zh-HK": "“（一）" } }, { "doc_id": 158, "seg_id": 51, "translation": { "en": "(2)\tTo found a plea of duress the threat relied on must be to cause death or grievous bodily harm;", "zh-HK": "（二） “威嚇”必需和“死亡”或嚴重人身傷亡有關；" } }, { "doc_id": 158, "seg_id": 52, "translation": { "en": "“威嚇”必需是針對被告人，其家人或近親；\t(3)\tThe threat must be directed against the defendant or his immediate family or someone close to him;", "zh-HK": "（三）" } }, { "doc_id": 158, "seg_id": 53, "translation": { "en": "有關測試主要是客觀的而非被告人的主觀理解，即“威嚇”所引致的功效之信念客觀上需要是合理及真誠的；\t(4)\tThe relevant tests pertaining to duress have been largely stated objectively and not with reference to the defendant’s subjective perceptions, that is to say, the defendant’s belief in the efficacy of the threat must be reasonable as well as genuine objectively;", "zh-HK": "（四）" } }, { "doc_id": 158, "seg_id": 54, "translation": { "en": "“威嚇”的答辯理由只適用於由該些“威嚇”所直接導致而要獲免責的罪行；\t(5)\tThe defence of duress is available only where the criminal conduct which it is sought to excuse has been directly caused by the threats which are relied upon;", "zh-HK": "（五）" } }, { "doc_id": 158, "seg_id": 55, "translation": { "en": "“威嚇”需是被告人應合理地採取了規避步驟但仍是不能避免的；及\t(6)\tThe threat must be one that the defendant still could not avoid in spite of him having taken evasive actions reasonably; and", "zh-HK": "（六）" } }, { "doc_id": 158, "seg_id": 56, "translation": { "en": "(7)\tThe defendant may not rely on duress to which he has voluntarily laid himself open.”", "zh-HK": "（七） 被告人不能自願地接受有關之“威嚇”" } }, { "doc_id": 158, "seg_id": 57, "translation": { "en": "We must emphasize that if duress is advanced as a defence to any charges, it must be strictly controlled lest the abuse of it would be giving an excuse to rationalize the criminal conduct of the defendant and exonerate him.", "zh-HK": "本庭強調“威嚇”作為任何罪行的答辯理由，必須受到嚴謹之約束，否則會遭濫用而導致令犯罪行為合理化之措口，令罪犯脫罪。" } }, { "doc_id": 158, "seg_id": 58, "translation": { "en": "Looking from an objective point of view, even if Ng Fei-tat had actually threatened the applicant that her home would be splashed with red paint or she would be assaulted, objectively she should not have reasonably and genuinely believed in the efficacy of Ng Fei-tat’s threat. And as rightly pointed out by the trial judge, the applicant had much opportunity to seek help from her family, friends or even the police. Therefore, the threat was not one that the applicant still could not avoid in spite of her having taken evasive actions reasonably.", "zh-HK": "從客觀角度觀之，即使伍飛達確有恐嚇申請人指會到她家中淋紅油或毆打她，客觀上，她不應合理及真誠地相信伍飛達的恐嚇確有效力。而誠如原審法官正確指出，申請人是有相當多的機會向家人、朋友，甚至向警方求助，所以有關“威嚇”並非申請人採取了應採取的合理規避步驟後，但仍然是不能避免的。" } }, { "doc_id": 158, "seg_id": 59, "translation": { "en": "We agree with the verdict reached by the trial judge. The defence of duress is not available in this case. The applicant cannot avail herself of it to secure an acquittal.", "zh-HK": "本庭認同原審法官的裁決，本案並沒有構成“威嚇”的辯護理由。申請人不能利用該理由冀求能脫罪。" } }, { "doc_id": 158, "seg_id": 60, "translation": { "en": "We do not find the conviction of the applicant unsafe in any respect. In consideration of the background and the relevant issues in this case, the other criticisms that Mr. Chow levelled at the approach adopted by the trial judge in dealing with the case are not well-founded either. We dismiss the application for leave to appeal.", "zh-HK": "對申請人被裁定罪名成立，本庭不覺有任何不穩妥之處，以本案的背景及有關爭議，周大律師對原審法官處理方法之其他批評亦是不能成立的。本庭不批准申請人就定罪上訴。" } }, { "doc_id": 158, "seg_id": 61, "translation": { "en": "由法律援助署委派許天福律師事務所轉聘周柏柱大律師代表。\tMr. Peter Chow, instructed by Messrs. David Hui & Co., assigned by the Director of Legal Aid, for the Applicant.", "zh-HK": "申請人：" } }, { "doc_id": 158, "seg_id": 62, "translation": { "en": "Mr. David Leung, Ag. SADPP of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司署理高級助理刑事檢控專員梁卓然代表。" } }, { "doc_id": 159, "seg_id": 1, "translation": { "en": "Hon Yeung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案書：" } }, { "doc_id": 159, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 159, "seg_id": 3, "translation": { "en": "The applicant Kung Pak Fu and his wife were the registered owners of Room 101 on the 9th floor of Lee Tai Building, 101-107 Prince Edward Road West, Mongkok, Kowloon (hereinafter “the residence”). They lived at the residence together with their three children.", "zh-HK": "申請人龔伯富和妻子為九龍旺角太子道西101-107號利泰大厦9樓101室（“該居所”）的註冊業主。他們和三名兒女在該居所同住。" } }, { "doc_id": 159, "seg_id": 4, "translation": { "en": "At about 11 p.m. on 12 December 2006, a fire broke out in the residence. Although the fire was extinguished very quickly, the applicant and his young daughter both suffered burns. The young daughter suffered secondary burns, covering 2% of her total body area and mainly to her right toes, and has now fully recovered. The applicant suffered secondary burns covering 30% of his total body area, but most of them were on parts of his body which could be covered. The applicant did not suffer facial injuries, nor was his movement affected.", "zh-HK": "2006年12月12日晚上11時許，該居所發生火警，雖然火勢很快遭撲滅，但申請人和幼女都受燒傷。幼女全身2% 受二級程度燒傷，主要在右腳腳趾，但已完全康復。申請人則全身30% 受二級程度燒傷，但大部份在可以遮蓋部位。申請人容貌無損，行動亦不受影響。" } }, { "doc_id": 159, "seg_id": 5, "translation": { "en": "As a result of the incident, the applicant was charged with arson being reckless as to whether the life of another would thereby be endangered. He pleaded not guilty and was tried before Deputy Judge Pang sitting with a jury. He was convicted after trial and was sentenced to 6½ years’ imprisonment.", "zh-HK": "事件導致申請人被控罔顧他人生命是否會受危害而縱火罪。他否認控罪，案件由高等法院原訟法庭暫委法官彭偉昌會同陪審團審理。結果，申請人被裁定罪名成立及被判入獄6年半。" } }, { "doc_id": 159, "seg_id": 6, "translation": { "en": "The applicant has applied for leave to appeal against both conviction and sentence. In respect of his application against sentence, he is represented by Mr. Hung of Counsel. He acted in person in respect of his application against conviction, but at the commencement of the hearing of the application he indicated that he would abandon his application against conviction. The application was dismissed accordingly. We only have to concern ourselves with his application against sentence.", "zh-HK": "申請人不服定罪及判刑，曾提出上訴許可申請，希望獲准就定罪或判刑上訴。就判刑申請孔慶碩大律師代表申請人，但就定罪申請，申請人沒有大律師代表，親自行事。開庭時，申請人表示放棄就定罪的申請，該申請亦被撤銷，而本庭只需處理申請人就判刑的申請。" } }, { "doc_id": 159, "seg_id": 7, "translation": { "en": "Prosecution evidence", "zh-HK": "控方證據" } }, { "doc_id": 159, "seg_id": 8, "translation": { "en": "The prosecution’s evidence mainly came from the applicant’s two children, who were at the scene at the material time.", "zh-HK": "控方主要證據源自案發時在現場的申請人兩名子女。" } }, { "doc_id": 159, "seg_id": 9, "translation": { "en": "The applicant’s daughter saw the applicant pour a bottle of essential oil onto the floor at the centre of the living room of the residence. In the meantime, the applicant had an argument with his children. His daughter said to him, “Jump down the building and kill yourself if you want to die”, and the son said, “It is you who have been cheated of all the monies in the first place”. The applicant became extremely agitated and angry and complained that no one cared about his feelings. Then he took out a piece of newspaper, held a corner of it with one hand and lighted another corner of it with a lighter, and threw the burning newspaper on the floor, setting the essential oil on the floor alight.", "zh-HK": "申請人的女兒目睹申請人將一支香薰油斟倒在該居所的客廳中間。期間，申請人和子女有些爭吵。女兒對申請人說，“你要死，就自己跳樓死”；兒子則說，“係你自己畀人呃晒啲錢先嘅”。申請人則極為激動及惱怒並表示沒有人理會他的感受。其後申請人拿出一張報紙，用手執一角及用打火機燃點另一角，並將燃燒的報紙拋在地上，引致地上的香薰油起火。" } }, { "doc_id": 159, "seg_id": 10, "translation": { "en": "The applicant’s son immediately rushed into the toilet to fetch water to put out the fire, and the fire was put out in 10 minutes.", "zh-HK": "申請人的兒子隨即衝入廁所取水撲救，並在10分鐘內將火救熄。" } }, { "doc_id": 159, "seg_id": 11, "translation": { "en": "The applicant’s children asserted that they saw the applicant pouring essential oil over the floor, lighting newspaper and throwing the burning newspaper on the floor. The daughter further claimed that the whole process of the applicant pouring and lighting the essential oil lasted as long as 10 minutes. The applicant’s son said that the fire was small and he was able to put out the fire just by using two basins of water.", "zh-HK": "申請人的子女都力稱目睹申請人有將香薰油斟倒在地上並燃點報紙及將燃燒報紙拋在地上。申請人的女兒更指申請人斟倒及燃點香薰油的整個過程長達10分鐘。申請人的兒子則指火勢輕微，他亦只需用兩盆水就能將火救熄。" } }, { "doc_id": 159, "seg_id": 12, "translation": { "en": "The applicant was subsequently arrested by the police. When asked by the police why a fire broke out in the residence, the applicant repeatedly admitted that “it was set by me” and “yes, yes, it was set by me”.", "zh-HK": "其後申請人被警員拘捕。警員問申請人為何該居所會着火，申請人有重複承認說，“係我放嘅”，“係呀，係呀，係我放嘅”。" } }, { "doc_id": 159, "seg_id": 13, "translation": { "en": "The relevant information revealed that at the material time the applicant participated in the essential oil marketing business but ended up losing over $100,000, as a result of which the family faced financial problems and the applicant’s relationship with his wife and children broke down. The daughter refused to talk to the applicant and communicated with the applicant only by means of slips.", "zh-HK": "資料顯示案發時申請人因參與香薰油推銷生意損失10多萬元，導致家庭經濟困難，及和妻子、子女關係破裂。女兒不會和申請人交談，只會用字條和申請人溝通。" } }, { "doc_id": 159, "seg_id": 14, "translation": { "en": "Defence evidence", "zh-HK": "辯方證據" } }, { "doc_id": 159, "seg_id": 15, "translation": { "en": "The applicant denied having deliberately committed the offence and alleged that the fire was caused by accident.", "zh-HK": "申請人否認故意縱火並指火災是意外做成的。" } }, { "doc_id": 159, "seg_id": 16, "translation": { "en": "The applicant said that on the night of the offence he had consumed rice wine but had not been influenced by it. He admitted that the children had said something disrespectful to him but it had not upset him. Later, he intended to smoke cigarette in the living room and add essential oil to the burner, and so he walked out to the living room from the bedroom holding a lit cigarette and an essential oil burner. The daughter suddenly came out to the living room from the kitchen and bumped into the applicant. This caused the burner he was holding to overturn, leading to a fire. As the applicant has abandoned his application against conviction, it is not necessary for us to delve into the defence that he put forward at trial.", "zh-HK": "申請人指案發當晚曾飲米酒，但不受其影響。申請人承認子女有對他說過一些不敬語言，但他並沒有惱怒。其後申請人打算在客廳吸煙及同時為香薰座加油，故手持已燃點的香煙及香薰座由睡房行出客廳，但女兒突然由廚房行出客廳碰到申請人。結果打翻其手持的香薰座導致火警。由於申請人已放棄就定罪的申請，故本庭無需深究申請人在原審時的答辯理由。" } }, { "doc_id": 159, "seg_id": 17, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 159, "seg_id": 18, "translation": { "en": "Mr. Hung stresses that the present offence stemmed from a family dispute and did not involve any premeditation, triad element or act of retaliation. He further contends that the sentence of 6½ years’ imprisonment is manifestly excessive as the applicant committed the offence on the spur of the moment.", "zh-HK": "孔大律師強調本案起因是家庭糾紛，不涉及預謀，黑社會或報復行為。孔大律師強調申請人是一時衝動下犯案，故6年半的判刑明顯過重。" } }, { "doc_id": 159, "seg_id": 19, "translation": { "en": "Mr. Hung also submits that the Judge had in sentencing failed to take into account relevant mitigating factors. According to Mr. Hung, those factors included:", "zh-HK": "孔大律師亦指原審法官沒有把有關的減刑因素考慮在內。孔大律師所指的減刑因素包括：" } }, { "doc_id": 159, "seg_id": 20, "translation": { "en": "The prosecution case was to a large extent agreed to by the applicant, and this significantly reduced the length of trial;", "zh-HK": "申請人有同意大部份控方案情，故大大減省了審訊所需的時間；" } }, { "doc_id": 159, "seg_id": 21, "translation": { "en": "The applicant had a clear record; and", "zh-HK": "申請人沒有犯案前科；及" } }, { "doc_id": 159, "seg_id": 22, "translation": { "en": "The applicant suffered secondary burns covering 30% of his total body area in the incident and was hospitalized for more than 3 months.", "zh-HK": "事件中申請人30% 身體受二級程度燒傷而要留院超過3個月。" } }, { "doc_id": 159, "seg_id": 23, "translation": { "en": "Discussion – application against sentence", "zh-HK": "討論 – 針對判刑的申請" } }, { "doc_id": 159, "seg_id": 24, "translation": { "en": "Hong Kong is such a densely populated city that unexpected occurrences of fire are bound to cause extremely serious injuries and deaths/or losses of properties. A deliberate act of arson, especially when done in a multi-storey residential building, will very likely cause extremely grave consequences. And indeed, it is clear from the line of relevant judicially decided cases that such conduct will result in heavy casualties as well as substantial economic losses.", "zh-HK": "香港人煙稠密，突發火災會做成極為嚴重的人命傷亡/或財產損失。故意縱火行為，特別在多層住宅大厦縱火，都可能做成極為嚴峻的後果。事實上亦有多宗案例證明該種行為會導致眾多人命傷亡及極大的經濟損失。" } }, { "doc_id": 159, "seg_id": 25, "translation": { "en": "In order to protect the lives and properties of the public from serious threats, acts of arson — in particular those relating to triads or involving intimidation or revenge — must be sanctioned with heavy, deterrent sentences.", "zh-HK": "縱火行為，特別是一些和黑社會有關或涉及恐嚇，報復的縱火行為，必需重判，以收阻嚇作用，否則市民大眾的生命和財產會受嚴重的威脅。" } }, { "doc_id": 159, "seg_id": 26, "translation": { "en": "In The Queen v Shum Hon Kai & another [1988] 2 HKLR 341, the Court of Appeal pointed out that where a defendant committed arson in a multi-storey residential building in the middle of the night, a starting point of 8 years’ imprisonment would not be inappropriate. One of the defendants in that case set fire to the victim’s residence by using petrol, for the purpose of taking revenge because he had been infuriated by the victim from whom he had been unable to obtain repayment of loans.", "zh-HK": "上訴法庭在The Queen v Shum Hon Kai & another [1988] 2 HKLR 341案指出，如被告人在夜半時份在多層住宅大厦的單位縱火，8年的量刑基準並非不適當。該案案情顯示被告之一因未能向受害人追回欠款而遷怒於受害人並用電油在受害人的住所縱火，目的是報復。" } }, { "doc_id": 159, "seg_id": 27, "translation": { "en": "Mr. Hung has cited Chau Yuk-kuen v R CACC 402/1980 in support of his contention. The defendant in that case had been in love with the victim but was later deserted by him. On the day of the offence, the defendant went to the victim’s residence and found the victim there with another woman. The defendant had an argument with the victim, in the course of which she was assaulted and humiliated, resulting in injuries to her face and arms. She was infuriated. She ran home and fetched a can of kerosene, which she then poured across the front door of the victim’s residence and set alight.", "zh-HK": "孔大律師援引Chau Yuk-kuen v R CACC 402/1980案支持其立場。該案被告人戀上受害人，但其後遭受害人遺棄。案發當天，被告人前往受害人的居所時，發現受害人和另一女子一起。在雙方爭吵期間，被告人遭歐打及侮辱，導致面上及手臂都受傷。在極怒下，被告人返家取得一罐火水並將火水斟倒在受害人住宅的大門前，然後放火。" } }, { "doc_id": 159, "seg_id": 28, "translation": { "en": "The Court of Appeal in that case took the view that the defendant had committed arson on the spur of the moment and under extreme distress, and that the appropriate starting point should not be lower than 4 to 5 years’ imprisonment.", "zh-HK": "上訴法庭認為該案的被告人是在極度困擾及一時衝動下犯了縱火罪，而適當的量刑基準不少於4至5年。" } }, { "doc_id": 159, "seg_id": 29, "translation": { "en": "In Tsoi Tin v R CACC 659/1976, the defendant, a factory worker, was scolded by a watchman when he was seen lying under one of the machines after working hours. The defendant then attacked the watchman and later went on to sprinkle the factory premises with kerosene and set them ablaze. The defendant was sentenced in the first instance to 8 years’ imprisonment. On appeal, the Court of Appeal considered the sentence excessive in light of the fact that the defendant had acted on the spur of the moment under the influence of medicine and that he had a clear record. In the end, the term of imprisonment was reduced to 5 years.", "zh-HK": "在Tsoi Tin v R CACC 659/1976案，被告人是一工廠工人。他因工餘時躺卧在車牀下而遭看更責罵。被告人上前襲擊該名看到更，而後來更在工廠廠房灑火水及放火。被告人被判入獄8年。上訴庭認為8年判刑過重，考慮到被告人一事衝動而案發時更受藥物影響，加上他沒有犯案前科，上訴庭最終將8年判刑減至5年。" } }, { "doc_id": 159, "seg_id": 30, "translation": { "en": "In R v Tsang Chu CACC 462/1986, the defendant, whose application for employment had been turned down, went to a film studio with a group of people in the early hours of the day of the offence. They threatened and tied up the watchman and then threw petrol bombs into the studio. The fire resulted in damage to properties valued at approximately $15,000. The Court of Appeal considered the sentence of 4 years’ imprisonment correct.", "zh-HK": "在R v Tsang Chu CACC 462/1986案，被告人因求職不遂而在清晨時份聯同一群人先恐嚇看更及將他捆綁後繼而將電油彈投入一片場，導致約15,000的財產破壞損失。上訴法庭認為4年的判刑正確。" } }, { "doc_id": 159, "seg_id": 31, "translation": { "en": "In HKSAR v Cheung Wing Siu CACC 76/1998, another case cited by Mr. Hung, the defendant, who had an argument with his father, vented his anger by pouring inflammable liquid over the furniture in the house and setting it ablaze. Although the fire was contained quickly, the defendant’s conduct had plainly put the lives of his father and other residents at risk. The first instance judge adopted a starting point of 4 years, and this was upheld by the Court of Appeal.", "zh-HK": "孔大律師援引的另一宗 HKSAR v Cheung Wing Siu CACC 76/1998案，的被告人因和父親爭拗而在發洩怒氣時將可燃燒液體斟倒在家中的傢具上及放火。雖然火勢很快受控，但申請人的行為明顯會威脅到其父親及其他住客的人身安全。上訴法庭認同原判時採納的4年量刑基準。" } }, { "doc_id": 159, "seg_id": 32, "translation": { "en": "We have reviewed a number of relevant decided cases. As we pointed out above, arson is an extremely serious offence. That said, we do not consider it appropriate to lay down sentencing guidelines for this offence because its gravity differs from case to case, particularly in cases involving family disputes or souring of relationships. The court must impose a sentence which properly reflects the gravity of the particular case.", "zh-HK": "本庭已考慮過多宗有關案例，誠如本庭在上文所述，縱火案是極為嚴重的罪行，但不同案件，特別是涉及家庭或感情紏紛的縱火案件的嚴重程度都不同，故本庭認為不適宜就該種罪行定下判刑指引。法庭必需根據個別案件的嚴重性而作出適當的判刑。" } }, { "doc_id": 159, "seg_id": 33, "translation": { "en": "The present case does not involve triad conduct, still less intimidation or blackmail. Ms. Wan, Senior Public Prosecutor for the respondent, submits that the applicant set fire for the purpose of retaliation. We have reservations about this. Had the applicant intended to take revenge, he should have done some planning and committed the offence when his children were not present or were asleep, but this was not what happened. In our view, this case stemmed from nothing more than a family dispute and the applicant committed the offence on the spur of the moment and in extreme anger. There was evidence that the applicant was an irascible person. The relevant psychologist’s report also indicated that the applicant was addicted to drinking and alcohol would diminish his ability to control himself. When drunk, the applicant would very easily become irritated and quarrel with his wife.", "zh-HK": "本案不涉及黑社會行徑，更和恐嚇勒索無關。代表答辯人的高級檢控官溫淑芳指申請人縱火的目的是報復。本庭對該說法有保留。假若申請人是報復，他理應有計劃及在子女不在場或睡覺時犯案，但他並非這樣做。本庭認為本案只屬家庭紏紛，申請人是在極憤怒及一時衝動時犯案。有證據顯示申請人是一名性格暴躁的人，有關的心理醫生報告亦顯示申請人有酒患而酒精會減弱他的自控能力。申請人醉酒時會極容易變得惱怒而會和妻子爭吵。" } }, { "doc_id": 159, "seg_id": 34, "translation": { "en": "The present case is plainly one in which the applicant, being influenced by alcohol and irritated by the disrespectful words and deeds of his children, committed the offence on the spur of the moment, and his conduct was highly unwise and might lead to extremely serious consequences.", "zh-HK": "本案明顯是申請人受酒精影響及受子女一些不敬言行所激怒而一時衝動做出一些極不理智及可能會導致極為嚴重後果的罪行。" } }, { "doc_id": 159, "seg_id": 35, "translation": { "en": "We do not intend to make any comment to the effect that the present offence is trivial, still less to diminish the applicant’s culpability for that reason. As we see it, however, there are a number of mitigating factors in the present case.", "zh-HK": "本庭無意作出任何言論將申請人的罪行描述為無足輕重，更不會因該理由而減輕申請人的罪責。但本庭認為案件有甚多的求情因素。" } }, { "doc_id": 159, "seg_id": 36, "translation": { "en": "As stated above, the present case arose from a family dispute and had nothing to do with triad, intimidation or revenge. Furthermore, the offence committed by the applicant was incongruous with his character. Apart from the influence of alcohol, the applicant’s peculiar conduct on the night of the offence was the result of his irritation with the disrespectful behaviour of his children.", "zh-HK": "除了上文所述，本案屬家庭紏紛和黑社會、恐嚇和報復都無關外，申請人的罪行亦是和他的性格不相符。申請人在案發當晚的特殊行徑除了是因為受酒精影響外，亦受其子女的不敬言行激怒而引發的。" } }, { "doc_id": 159, "seg_id": 37, "translation": { "en": "The prosecution evidence showed that not only was the applicant’s 13-year-old daughter disgruntled with the applicant’s inability to pay telephone charges, as a result of which she was unable to use the telephone, but she also said to the applicant, “Jump down the building and kill yourself if you want to die”. His 19-year-old son also blamed him for having been deceived of all his money.", "zh-HK": "控方的證據顯示，申請人的13歲女兒不但對申請人沒錢支付電話費令她無電話可用而感不滿外，更向申請人說，“你要死，就自己跳樓死”，而其19歲的兒子亦指責申請人遭人騙去全部金錢。" } }, { "doc_id": 159, "seg_id": 38, "translation": { "en": "At the material time, by unwisely participating in the essential oil marketing business, the applicant had put himself in dire financial shape. Instead of understanding his predicament and feelings, his family members found faults with him and ridiculed him.", "zh-HK": "當時申請人因為不理智地參與香薰油的銷售業務而導致財政狀況極為緊絀。申請人的困境和感受，不但不獲家人諒解，更遭家人責備及嘲笑。" } }, { "doc_id": 159, "seg_id": 39, "translation": { "en": "It was in the said circumstances and on the spur of the moment that the applicant carried out the extremely unwise conduct.", "zh-HK": "申請人是在上述情況下及一時衝動下作出了極為不智的行為。" } }, { "doc_id": 159, "seg_id": 40, "translation": { "en": "Other than the daughter who suffered minor injuries, the applicant was the only other person injured in the incident. The applicant’s injuries were far more serious than those of his daughter and necessitated hospitalization for 3 months.", "zh-HK": "除了女兒受輕傷外，申請人是唯一另外一名在事件中受傷的人。申請人的傷勢亦遠較其女兒的傷勢嚴重，需要留醫三個月。" } }, { "doc_id": 159, "seg_id": 41, "translation": { "en": "The applicant was in fact the major victim in the incident. Apart from inflicting physical and mental injuries on him, the incident might further alienate him from his family. The fire would also inevitably have caused some financial loss to the applicant’s family.", "zh-HK": "事實上，申請人在事件中是主要的受害者。除身心受損外，事件更可能導致申請人和家人的關係更加疏離。當然火災亦必會導致申請人家庭的一些經濟損失。" } }, { "doc_id": 159, "seg_id": 42, "translation": { "en": "In our view, the use of essential oil by the applicant to set fire should be less serious than the use of inflammable liquid such as petrol, thinner or kerosene. And we cannot ignore the fact that the applicant is aged over 50 and has a clear record.", "zh-HK": "本庭認為申請人縱火使用的是香薰油，其嚴重性應該較使用汽油，天拿水或火水等易燃液體為輕。本庭亦不能忽視申請人年過半百，但沒有犯罪前科。" } }, { "doc_id": 159, "seg_id": 43, "translation": { "en": "Had the applicant persistently committed the offence of arson, the court would, in the interests of the public, certainly have passed a sentence comparable in severity to the one imposed in the case of HKSAR v Lo Po Tak [1998] 3 HKC 485. We consider that there are circumstances in the present case that justify a merciful approach to sentencing. We hope that the applicant will learn a lesson from this incident and bear it in mind, and will also adopt a more positive and responsible attitude towards his family.", "zh-HK": "假若申請人是積犯多次干犯縱火罪，法庭必會採納HKSAR v Lo Po Tah [1998] 3 HKC 485案同樣的嚴厲刑罰，以保護公眾利益。本庭認為本案有值得法外施恩的因素。本庭希望申請人能汲取及牢記本案帶出的教訓及會對家庭採納更積極及負責的態度。" } }, { "doc_id": 159, "seg_id": 44, "translation": { "en": "Notwithstanding the serious nature of the offence committed by the applicant, the original sentence of 6½ years’ imprisonment is, in light of the mitigating factors, manifestly excessive. In our judgment, a term of imprisonment of 4 years is sufficient.", "zh-HK": "考慮到案件的各項求情因素，雖然申請人所犯的罪行性質嚴重，但原判的6年半刑期屬明顯過重。本庭認為4年的判刑已足夠。" } }, { "doc_id": 159, "seg_id": 45, "translation": { "en": "We grant leave to the applicant to appeal against sentence and, treating the application as the appeal proper, allow the appeal and reduce the term of sentence from 6½ years to 4 years.", "zh-HK": "本庭批准申請人就判刑上訴，並視其申請為正式上訴。本庭判他的上訴得直，其刑期由6年半減至4年。" } }, { "doc_id": 159, "seg_id": 46, "translation": { "en": "Mr. Andy Hung, instructed by James W.L. Li & Co. on assignment by the Legal Aid Department, for the Applicant (re application for leave to appeal against sentence).", "zh-HK": "申請人：由法律援助署委派李立本律師行轉聘孔慶碩大律師代表（不服刑罰上訴許可申請）。" } }, { "doc_id": 159, "seg_id": 47, "translation": { "en": "The Applicant in person, present (re application for leave to appeal against conviction).", "zh-HK": "申請人：無律師代表，親自應訊（不服定罪上訴許可申請）。" } }, { "doc_id": 159, "seg_id": 48, "translation": { "en": "Ms. Polly Wan, Senior Public Prosecutor, for the Respondent.", "zh-HK": "答辯人：由律政司高級檢控官溫淑芳代表。" } }, { "doc_id": 160, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the Reasons for Judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 160, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 160, "seg_id": 3, "translation": { "en": "The applicant was charged with seven counts of sexual assault offences. The victims were two 12-year-old boys X and Y, who were both 12-year-old secondary school students. The charges were:", "zh-HK": "申請人被控七項性侵犯罪，事主是兩名12歲男童X及Y。他們是中學生。有關的控罪為：" } }, { "doc_id": 160, "seg_id": 4, "translation": { "en": "three counts of “indecent conduct towards a child under the age of 16” (Charges 1 to 3);", "zh-HK": "三項「向年齡在16 歲以下的兒童作出猥褻行為」罪（控罪一至三）；" } }, { "doc_id": 160, "seg_id": 5, "translation": { "en": "one count of “non-consensual buggery” (Charge 4);", "zh-HK": "一項「未經同意下作出的肛交」罪（控罪四）；" } }, { "doc_id": 160, "seg_id": 6, "translation": { "en": "one count of “procuring another person, by threats or intimidation, to do an unlawful sexual act” (Charge 5); and", "zh-HK": "一項「以威脅或恐嚇手段促致他人作非法的性行為」罪（控罪五）；及" } }, { "doc_id": 160, "seg_id": 7, "translation": { "en": "two counts of “indecent assault on another person” (Charges 6 and 7).", "zh-HK": "二項「猥褻侵犯另一人」罪（控罪六和七）。" } }, { "doc_id": 160, "seg_id": 8, "translation": { "en": "Charges 1 to 3 involved Boy X (Group 1 charges), and Charges 4 to 7 involved Boy Y (Group 2 charges).", "zh-HK": "控罪一至三涉及男童 X（第一組控罪），控罪四至七涉及男童 Y（第二組控罪）。" } }, { "doc_id": 160, "seg_id": 9, "translation": { "en": "The case was heard before High Court Judge Maggie Poon sitting with a jury. The applicant initially pleaded not guilty but changed his plea after the voir dire. Judge Poon imposed a total sentence of 7 years’ imprisonment for the Group 1 charges (Charges 1 to 3) and a total sentence of 9 years’ imprisonment for the Group 2 charges (Charges 4 to 7), and the two sentences were ordered to run concurrently, making a total term of 9 years. The starting points adopted by Judge Poon for individual charges and the sentences after giving one-fourth discount for the guilty plea are set out below:", "zh-HK": "案件由高等法院原訟法庭法官潘敏琦與陪審團審理。申請人最初不認罪，但在「案中案」審結後改為承認控罪，潘法官就第一組控罪（控罪一至三）判申請人總刑期7年，就第二組控罪（控罪四至七）判總刑期9年，兩組刑期同期執行，總刑期為9年監禁。潘法官判處的個別控罪的量刑基準及因認罪扣減四分之一之後的刑期如下：" } }, { "doc_id": 160, "seg_id": 10, "translation": { "en": "The applicant applied for leave to appeal his sentence. At the conclusion of the hearing, we dismissed the application for reasons which we now give.", "zh-HK": "申請人就刑期提出上訴許可申請。本庭在聆訊後駁回申請，以下是判決理由。" } }, { "doc_id": 160, "seg_id": 11, "translation": { "en": "Facts", "zh-HK": "案情" } }, { "doc_id": 160, "seg_id": 12, "translation": { "en": "The present case happened between May and July 2011 when the applicant was aged 20. In early 2011, the applicant became acquainted with X in a park, and through X, he also became acquainted with X’s friends, including Y. The applicant came to know the age of X and Y and which level(s) they were studying at school.", "zh-HK": "本案發生於2011年5月至7月期間，當時申請人的年齡為20歲。X於2011年初在一個公園結識申請人，申請人亦透過X認識了X的其他朋友，包括男童Y。申請人亦得悉X及Y的年齡及在學校就讀的班級。" } }, { "doc_id": 160, "seg_id": 13, "translation": { "en": "Charge 1 (Indecent conduct towards a child under the age of 16)", "zh-HK": "第一項罪名（向年齡在16歲以下的兒童作出猥褻行為）" } }, { "doc_id": 160, "seg_id": 14, "translation": { "en": "One night in May 2011, the applicant without prior notice visited X who was at home playing computer games with a boy who was of the same age (E). At X’s home, the applicant suddenly pulled down his pants, exposing his private parts, and took X’s hand to touch his penis, and then masturbated by himself. He requested X and E to try to perform oral sex on him. E refused. X eventually licked the applicant’s penis once and then immediately left the room for the toilet to rinse his mouth.", "zh-HK": "於2011年5月某晚，X正在家中與一位同齡的男童E以電腦玩遊戲，申請人忽然到訪。申請人後來突然拉下褲子露出下體，並捉着X的手去觸摸申請人的陰莖，再自行手淫。申請人要求X及E嘗試替申請人口交，E拒絕，X最後以舌頭舔了申請人的陰莖一下，便立刻離開房間到洗手間漱口。" } }, { "doc_id": 160, "seg_id": 15, "translation": { "en": "Charge 2 (Indecent conduct towards a child under the age of 16)", "zh-HK": "第二項罪名（向年齡在16歲以下的兒童作出猥褻行為）" } }, { "doc_id": 160, "seg_id": 16, "translation": { "en": "One evening in May 2011, the applicant and X met at a park. The applicant pulled X’s hand to touch his lower parts over the pants. X tried to withdraw his hand but it got caught again. The applicant then pulled down his pants, exposing his private parts, and requested X to perform oral sex on him. X licked the applicant’s penis once.", "zh-HK": "於2011年5月某天傍晚，申請人與X在一個公園見面。申請人拉着X的手隔着褲子觸摸申請人的下體，X試圖縮開手但遭捉着。接着申請人拉下褲子露出下體，要求X替他口交，X以舌頭舔了申請人的陰莖一下。" } }, { "doc_id": 160, "seg_id": 17, "translation": { "en": "Charge 3 (Indecent conduct towards a child under the age of 16)", "zh-HK": "第三項罪名（向年齡在16歲以下的兒童作出猥褻行為）" } }, { "doc_id": 160, "seg_id": 18, "translation": { "en": "One day in early June 2011, the applicant visited X’s home and requested X to masturbate with him together. X agreed and the two of them masturbated, and then the applicant requested X to let him ejaculate in his mouth and promised X that no such acts would be done anymore. X agreed to let the applicant ejaculate into his mouth and afterwards went to the toilet immediately to spit out the semen.", "zh-HK": "於2011年6月初的某一天，申請人到X的家，要求和他一起手淫。X同意，兩人進行手淫，接着申請人要求X讓申請人在X口中射精，申請人向X承諾這將是最後一次進行這些行為。X同意申請人把精液射進X的口中，之後X立刻到洗手間把精液吐出。" } }, { "doc_id": 160, "seg_id": 19, "translation": { "en": "On the above three occasions, X involuntarily did the acts of masturbation or oral sex. However, as the applicant had on a certain day in April 2011 threatened X and X’s friend(s) with a fruit knife at X’s home, and as X had also noticed that the applicant often carried a cutter with him, X was afraid of being beaten up if he did not do as instructed by the applicant.", "zh-HK": "X是在不自願的情況下進行上述三次的手淫、口交等行為，但因為申請人曾經在2011年4月某一天，在X家中以生果刀指嚇X和X的朋友，X又留意到申請人時常帶着一把刀，所以恐怕不依照申請人的指示做，會遭申請人毆打。" } }, { "doc_id": 160, "seg_id": 20, "translation": { "en": "Charge 4 (Non-consensual buggery)", "zh-HK": "第四項罪名（未經同意下作出肛交）" } }, { "doc_id": 160, "seg_id": 21, "translation": { "en": "In mid-2011, Y became acquainted with the applicant through X. The applicant suggested having homosexual anal sex with Y, but Y refused. The applicant threatened to get someone to beat Y up. Y felt very disturbed after hearing that.", "zh-HK": "於2011年中，Y透過X認識了申請人，申請人向Y提議進行同性肛交，但Y拒絕，申請人恐嚇會找人打Y，Y聽到後感到很不安。" } }, { "doc_id": 160, "seg_id": 22, "translation": { "en": "On the afternoon of 24 June 2011, the applicant invited Y to the applicant’s residence to play video games. The applicant pinned Y down on the bed and forcibly kissed him and removed all his clothing. Y tried to push away the applicant and resist but in vain because he did not have enough strength. The applicant performed oral sex on Y, and Y told him to stop, but he threatened to bite Y’s private parts. The applicant then turned Y over and pinned him down on the bed, and then inserted his penis into Y’s anus. This lasted about two minutes, during which Y kept on shouting and saying he felt pain and asking the applicant to stop. Finally Y burst into tears. The applicant did not use a condom during the anal intercourse. Y managed to push away the applicant once or twice but was immediately pinned down again. Afterwards the applicant told Y not to disclose what happened, otherwise he would get someone to beat Y up.", "zh-HK": "2011年6月24 日下午，申請人約Y到申請人的住所玩遊戲機。申請人把Y按在床上，強行與Y接吻及脫去Y的所有衣服，Y試圖推開申請人及反抗，但因為不夠力氣而不成功。申請人替Y口交，Y叫申請人停止，但申請人恐嚇會咬Y的下體。申請人接着將Y反按在床上，以陰莖插入Y的肛門，維時大概兩分鐘。期間Y不停向申請人叫喊表示痛楚及叫申請人停止，最後並哭了起來，過程中申請人並沒有使用避孕套。Y曾有一兩次把申請人推開，但立刻又遭申請人按住。申請人接着要Y不要將事情說出來，否則會找人毆打Y。" } }, { "doc_id": 160, "seg_id": 23, "translation": { "en": "Charge 5 (Procuring another person, by threats or intimidation, to do an unlawful sexual act)", "zh-HK": "第五項罪名（以威脅或恐嚇手段促致他人作非法的性行為）" } }, { "doc_id": 160, "seg_id": 24, "translation": { "en": "After doing the act of anal sex on Y, the applicant requested Y to do the same to him and indicated that if Y did not do as he wished, he would get someone to beat Y up. Y was frightened and, having no choice, acceded to the applicant’s request and tried to perform anal sex on the applicant. Y’s penis touched the applicant’s anus for 5 to 6 seconds, but as his penis was not erect, Y pretended to have anal sex by inserting his forefinger into the applicant’s anus instead. The applicant ejaculated and wiped the semen with a piece of tissue paper. He demanded Y to swallow the semen but Y refused. Y threw the tissue paper into the dustbin when the applicant went to the toilet, and then lied to the applicant that he had already swallowed the semen.", "zh-HK": "申請人與Y進行肛交之後，要求Y對申請人同樣進行肛交 ，並表示假如Y不按申請人的意思做 ，會找人毆打Y。Y感到驚怕，只好應申請人的要求嘗試替申請人進行肛交。Y以陰莖接觸申請人的肛門5-6秒，但因為Y的性器官沒有勃起 ，所以改以食指插入申請人的肛門 ，假裝進行肛交。申請人有射精，並將精液抹在一張紙巾上，要Y將精液吃下但Y拒絕，Y趁申請人進洗手間時把紙巾丟進垃圾桶，向申請人訛稱已經吃了。" } }, { "doc_id": 160, "seg_id": 25, "translation": { "en": "Charge 6 (Indecent assault on another person)", "zh-HK": "第六項罪名（猥褻侵犯另一人）" } }, { "doc_id": 160, "seg_id": 26, "translation": { "en": "On 17 July 2011, the applicant invited Y and another boy (D) to go to a movie. When waiting for transport, the applicant took Y to a staircase nearby for smoking and suddenly touched Y’s private parts over the pants.", "zh-HK": "2011年7月17日，申請人約Y及另一男童D，一起看電影。在候車期間，申請人帶Y到附近的樓梯吸煙，申請人突然隔着褲子觸摸Y的下體。" } }, { "doc_id": 160, "seg_id": 27, "translation": { "en": "Charge 7 (Indecent assault on another person)", "zh-HK": "第七項罪名（猥褻侵犯另一人）" } }, { "doc_id": 160, "seg_id": 28, "translation": { "en": "The three of them went into the cinema. Halfway into the movie, the applicant suddenly touched Y’s private parts over the pants and attempted to kiss Y, but Y lowered his head to dodge, and the applicant immediately grabbed Y’s shoulder with his hand.", "zh-HK": "三人進入影院，電影播放至中段時，申請人突然用手隔著褲子觸摸Y的下體，並試圖以嘴吻向Y，但Y低頭避開，申請人隨即以手擁著Y的肩膊。" } }, { "doc_id": 160, "seg_id": 29, "translation": { "en": "Y was not voluntary when the four abusive acts involved in the above incidents were performed.", "zh-HK": "在以上事件涉及的四項侵犯行為，全都是在Y不自願的情況下進行。" } }, { "doc_id": 160, "seg_id": 30, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理據" } }, { "doc_id": 160, "seg_id": 31, "translation": { "en": "Mr Poon, Counsel for the applicant, complained that the starting points adopted by Judge Poon for Charges 1 to 5 as well as the overall sentence were manifestly excessive. He referred to the case of HKSAR v CHAU SHU HO (CACC 228/2007). The appellant in that case was found guilty by the jury on four counts of “indecent assault” and one count of “common assault” on a boy aged 10. The four counts of “indecent assault” all involved the appellant putting his penis into the boy’s mouth. Specifically, Charge 3 alleged that the boy had all his clothes removed after he went asleep and was molested by the appellant. The facts of Charge 4 alleged that the boy cried out for pain when the appellant was sucking his penis, but the appellant ignored him and even told him that he would take away the presents that had been given to him if he did not cooperate. Charges 4 and 5 both involved the appellant rubbing his penis against the boy’s exposed buttock and the area outside his anus until ejaculation. The trial judge adopted starting points of 3 years for the first two charges and 4 years for the last two charges (involving rubbing the penis against the victim). The Court of Appeal did not consider those starting points excessive and even took the view that they were on the low side (see paragraph 43 of the judgment).", "zh-HK": "代表申請人的潘展平大律師指潘法官就控罪一至五所定的量刑基準明顯過重及整體刑期明顯過重。他引用HKSAR v. CHAU SHU HO（周樹壕）（CACC 228/2007）。在該案，上訴人被陪審團裁定共四項對一名10歲男童「猥褻侵犯」及一項「普通襲擊」罪名成立。該四項「猥褻侵犯」罪均涉及上訴人把受害男童陽具放入口中的行為。其中，控罪三指受害男童在睡着後被上訴人脫光衣服侵犯。控罪四的案情是男童在被上訴人吸吮陽具時叫痛，但上訴人沒有理會。上訴人更對男童說如果他不合作，便會把送給他的禮物拿走。控罪四及五均涉及上訴人把自己的陽具，在受害男童裸露的臀部及肛門外圍的地方磨擦，直至射精。上訴法庭認為，原審法官就首兩項控罪以3年，後兩項控罪（有用陽具磨擦受害人）以4年作起點，並無過重，且屬輕判（見判詞第43段）。" } }, { "doc_id": 160, "seg_id": 32, "translation": { "en": "Mr Poon contended that even if the starting points in the above case were enhanced by 25%, they would still only come to 4½ years and 5 years respectively, which were still considerably lower than the starting points of 6 years and 7 years adopted in the present case, and therefore the individual sentences for Charges 1, 2 and 3 in Group 1 were manifestly excessive.", "zh-HK": "潘大律師認為，即使把上述案例量刑基準提升百分之廿五，結果也只是4年半及5年，與本案的6年及7年基準仍有明顯距離，因此第一組控罪的第一、第二及第三項控罪的個別刑期，明顯過重。" } }, { "doc_id": 160, "seg_id": 33, "translation": { "en": "In respect of Charge 4 (involving buggery) in Group 2, Judge Poon had considered the case of HKSAR v CHOW YUEN FAI [2010] 1 HKLRD 354, in which the 11th and 13th charges involved non-consensual buggery with boys aged 13 and 12. The trial judge adopted a starting point of 7 years for each of those two charges, but the Court of Appeal increased the starting points to 10 years and 8 years respectively.", "zh-HK": "就第二組控罪的第四項控罪（涉及肛交罪行），潘法官曾考慮過香港特別行政區訴周遠輝 [2010] 1 HKLRD 354 一案的情況，該案的第11及13 項控罪，亦是作出對13及12歲男童未經同意下的肛交罪。上訴法庭將原審法官就上述兩項肛交罪所定的7年的量刑基準分別上調至10年及8年。" } }, { "doc_id": 160, "seg_id": 34, "translation": { "en": "In addition, in R. v CHAN CHI WA (CACC 559/1996), the victim, a woman was aged 17, was luring into a guesthouse where the appellant, using violence, raped her twice and had non-consensual buggery on her once. The appellant was convicted after trial and sentenced to 10 years’ imprisonment for each of the offences, with the sentences ordered to run concurrently. The Court of Appeal considered the sentences appropriate. The appellant had a previous conviction record for “rape”.", "zh-HK": "另外，在R. v. CHAN CHI WA (CACC 559/1996) 一案中，受害的17歲女士，在被騙到公寓後，遭該案上訴人武力對待，並被強姦兩次及未經同意下肛交一次，經審訊後定罪，每項控罪判刑10年監禁同期執行，上訴法庭認為判刑適當。上訴人是有「強姦」罪的前科。" } }, { "doc_id": 160, "seg_id": 35, "translation": { "en": "In respect of Charge 5, the applicant referred to the case of HKSAR v LAM YAT TUNG (CACC 131/2007). In the case, the appellant lured a Form Two female student under the age of 16 to a staircase where he indecently assaulted her and twice forced her by intimidation to have sex with him. The appellant was convicted after trial on (inter alia) two counts of “procuring another person by threats to do an unlawful sexual act” and sentenced to imprisonment for 4 years and 2½ years respectively for those two offences. Taking into account the sentences imposed on him for other offences in the same case, the appellant was sentenced to imprisonment for a total term of 5 years. The appellant’s appeal against sentence was dismissed by the Court of Appeal, which held that the sentences for individual convictions and the overall sentence were all on the low side and that there was no room whatsoever for reduction of sentence.", "zh-HK": "就第五項控罪，申請人引用在香港特別行政區訴林 日 東 (CACC 131/2007) 一案。該案上訴人在哄騙了一名不足16歲的中二女生到梯間非禮後，先後兩次以恐嚇手段迫使受害女生與他性交。上訴人否認控罪，經審訊後被定罪，兩項「以威脅手段促使他人作非法性行為」罪分別被判處4年及2年半監禁。連同其他同案罪名，一共被判監5年。上訴人不服判刑上訴，上訴法庭駁回上訴，並認為各項定罪個別及總刑期均屬輕判，絕無扣減餘地。" } }, { "doc_id": 160, "seg_id": 36, "translation": { "en": "Mr Poon submitted that, compared with the above two decided cases, the starting points of 12 years and 8 years adopted for Charge 4 and 5 respectively in the present case were manifestly excessive. The circumstances of the offences in CHOW YUEN FAI were even more serious: the appellant in that case became acquainted, by means of playing online games, with six boys aged between 8 and 13, and he sexually assaulted them in various appalling ways and also took and kept disgusting pictures and videos. That case involved more victims than the present case did (6 vs 2), and some of the victims in that case, aged below 12, were even younger than X and Y in the present case (both aged 12). The facts of that case (eg pornographic photos of children were taken and kept, and the appellant was a sexual predator with a fairly high risk of re-offending) were obviously more serious than those in the present case (no photo was taken and kept, no evidence that the applicant was a sexual predator, and the risk of re-offending being moderate to high). However, the sentence imposed in CHOW YUEN FAI was even more lenient than that in the present case.", "zh-HK": "潘大律師說比較上述兩宗案例，本案第四、五項控罪的12年及8年量刑基準明顯過高。周遠輝 案的情節更為嚴重，上訴人透過玩網上遊戲，結交了六位分別年齡由8歲至13歲的男童，對他們作出不同方式令人髮指的性侵犯，亦有拍下不堪入目的照片及錄像，並且積存。該案中受害人人數（6 位）較本案（2位）多，部分受害男童年紀(12歲以下)較本案受害男童X及Y(同為12歲)更為幼小，而案情(如拍兒童色情照存錄、上訴人是一名性罪行捕獵者、重犯風險頗高)亦明顯較本案嚴重(本案無拍照存錄、無證據顯示申請人是一名性罪行捕獵者、重犯風險中至高度)。但周遠輝 案的判刑反較本案為輕。" } }, { "doc_id": 160, "seg_id": 37, "translation": { "en": "In LAM YAT TUNG, the appellant’s misdeeds included forcing the victim to take nude photos and even posting them on the internet. The applicant had also performed some extremely humiliating sexual acts on the victim.", "zh-HK": "在林日東 案，上訴人的惡行包括強迫受害人拍裸照，更將照片登上互聯網。申請人亦對受害人作出一些極為羞辱的性行為。" } }, { "doc_id": 160, "seg_id": 38, "translation": { "en": "In respect of the overall sentence, Mr Poon submitted that the total term of 7 years for the Group 1 charges was manifestly excessive. As for the Group 2 charges, the decision of Judge Poon indicated that the overall sentence was dictated by Charge 4 for which a starting point of 12 years was adopted, and this was also the major factor leading to the final overall sentence of 9 years’ imprisonment. This was (it was submitted) also manifestly excessive.", "zh-HK": "就整體刑期而言，潘大律師指第一組控罪的7年總刑期是明顯過重。而第二組控罪，依照潘法官的判決，主導整個刑期的是以12年作為量刑基準的第四項控罪，而這亦是令到最終整體刑期定為9年監禁的主要因素。這亦是明顯過高。" } }, { "doc_id": 160, "seg_id": 39, "translation": { "en": "Our views", "zh-HK": "本庭的意見" } }, { "doc_id": 160, "seg_id": 40, "translation": { "en": "In HKSAR v TSANG CHIU TAK (CACC 386/2011) the Court of Appeal laid down the following guidelines on sentencing principles for cases involving sexual assaults by adults on children. In essence, the court must impose deterrent sentences:", "zh-HK": "上訴法庭在香港特別行政區訴曾昭德CACC 386/2011一案就成年人性侵犯兒童案件的量刑原則作出以下的指示，其重點是法庭必須採用具阻嚇性的刑罰：" } }, { "doc_id": 160, "seg_id": 41, "translation": { "en": "“The Sentencing Principle", "zh-HK": "「量刑原則" } }, { "doc_id": 160, "seg_id": 42, "translation": { "en": "8.The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.", "zh-HK": "8. 上訴法庭在多宗近期的案件中重申法庭必須保護無辜及容易信賴別人的兒童，避免這些易受傷害的人士被人性侵犯，以致身體及精神受到創傷。在涉及性侵犯兒童的案件中法庭有需要採用具阻嚇性的刑期來防止其他人士干犯這類罪行。這些具阻嚇性的刑期是表達公眾對這些罪行的厭惡及為受害者及其家人伸冤。" } }, { "doc_id": 160, "seg_id": 43, "translation": { "en": "9.The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:", "zh-HK": "9. 上訴法庭指出法庭在處理性侵犯兒童罪行時就量刑所需要考慮的因素包括：" } }, { "doc_id": 160, "seg_id": 44, "translation": { "en": "(1)The age difference between the defendant and the victim;", "zh-HK": "(1) 被告人與受害人的年紀差異；" } }, { "doc_id": 160, "seg_id": 45, "translation": { "en": "(2)The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;", "zh-HK": "(2) 被告人與受害人的關係。被告人是否利用自己的地位干犯罪行及案件是否存在破壞信任的成份；" } }, { "doc_id": 160, "seg_id": 46, "translation": { "en": "(3)Whether the defendant had used threats or inducements to make the victim succumb;", "zh-HK": "(3) 被告人有否利用恐嚇、利誘的手段來令受害人就範；" } }, { "doc_id": 160, "seg_id": 47, "translation": { "en": "(4)The number of occasions of committing the offences and the duration of the offences;", "zh-HK": "(4) 犯罪的次數及時間；" } }, { "doc_id": 160, "seg_id": 48, "translation": { "en": "(5) Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;", "zh-HK": "(5) 被告人有否使用不適當及不必要的暴力來令受害人受傷、不適；" } }, { "doc_id": 160, "seg_id": 49, "translation": { "en": "(6)Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;", "zh-HK": "(6) 被告人在性侵犯受害人時有否採用安全措施來防止傳染性病給受害人或令受害人受孕；" } }, { "doc_id": 160, "seg_id": 50, "translation": { "en": "(7)Whether the sexual abuses have caused physical or psychological trauma to the victim;", "zh-HK": "(7) 受害人是否因被性侵犯而受到肉體或精神的創傷；" } }, { "doc_id": 160, "seg_id": 51, "translation": { "en": "(8)Whether the offences have impact on the family members of the victim;", "zh-HK": "(8) 有關的罪行有否影響受害人的家庭；" } }, { "doc_id": 160, "seg_id": 52, "translation": { "en": "(9)Whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take photos or videos of the offence he committed; and", "zh-HK": "(9) 被告人有否同時涉及其他不當的行為，例如邀請其他人士觀看其罪行或拍攝或錄影；" } }, { "doc_id": 160, "seg_id": 53, "translation": { "en": "(10)Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.", "zh-HK": "(10) 被告人是否精神不正常及患有戀童癖及其重犯的機會率。" } }, { "doc_id": 160, "seg_id": 54, "translation": { "en": "See HKSAR v Chow Yuen Fai [2010] 1 HKC 181, HKSAR v Lee Hon Wah [2011] 4 HKLRD 319, HKSAR v Ng Ka Kin (CACC 328/2010) and HKSAR v Lee Kwok Wai (CACC 199/2011).”", "zh-HK": "見：HKSAR v. Chow Yuen Fai [2010] 1 HKC 181, HKSAR v. Lee Hon Wah [2011] 4 HKLRD 319, 香港特別行政區對吳家健Ng Ka Kin (CACC 328/2010) 及HKSAR v. Lee Kwok Wai李國偉(CACC 199/2011)。」" } }, { "doc_id": 160, "seg_id": 55, "translation": { "en": "The Court of Appeal applied the above principles in HKSAR v LEE KWOK WAH FRANCIS (CACC 30/2011). See also HKSAR v HCT (CACC 372/2012).", "zh-HK": "上訴法庭在香港特別行政區訴李國華 CACC 30/2011 亦引用上述原則。另見：香港特別行政區訴HCT CACC 372/2012。" } }, { "doc_id": 160, "seg_id": 56, "translation": { "en": "We would like to reiterate what Ma CJHC (as he then was) said in his judgment in HKSAR v CHOW YUEN FAI: in relation to the offences of buggery and indecent assault, as the circumstances of the offences vary from case to case, it is neither possible nor practicable to lay down tariffs or guidelines for these offences; for this reason, references to sentences imposed in previous decided cases are often of limited assistance (see paragraph 27 of the judgment).", "zh-HK": "本庭重申高等法院首席法官馬道立（當時官階）在HKSAR v Chow Yuen Fai（周遠輝）一案的判詞中所說，有關肛交和猥褻侵犯的罪行，由於每件案件案情不同，要定立量刑準則或指引是不可能和不可行的；故此，以過往案件的刑罰作參考的作用亦有限（見判詞第27段）。" } }, { "doc_id": 160, "seg_id": 57, "translation": { "en": "In the present case Judge Poon considered the following features which in her view constituted aggravating factors:", "zh-HK": "潘法官所考慮並認為於本案存在加重案情嚴重性的因素如下：" } }, { "doc_id": 160, "seg_id": 58, "translation": { "en": "There was a significant age difference between the applicant and the victims, in that the victims were only 12 and the applicant was 20 at the material time;", "zh-HK": "申請人與受害男童年齡有一定距離，兩男童於案發時只是12歲而申請人是20歲；" } }, { "doc_id": 160, "seg_id": 59, "translation": { "en": "The applicant was definitely an attacker or invader, and there existed the evil situation of an adult oppressing children by means of violence and threats;", "zh-HK": "申請人絕對屬於侵襲者或侵略者，存在成年人以暴力及恐嚇欺壓兒童的腐化情況；" } }, { "doc_id": 160, "seg_id": 60, "translation": { "en": "No safety measures were taken during sexual intercourse;", "zh-HK": "本案存在缺乏安全措施的性行為；" } }, { "doc_id": 160, "seg_id": 61, "translation": { "en": "The present case was not an one-off single incident; and", "zh-HK": "本案並非單一事件；及" } }, { "doc_id": 160, "seg_id": 62, "translation": { "en": "Oral sex, ejaculating into the victim’s mouth, procuring the victim to swallow semen, causing physical and psychological trauma to the two victims and so on, were aggravating factors.", "zh-HK": "口交、在男童口內射精、促使男童吞掉精液、令兩男童身心受創等是令案情嚴重的因素。" } }, { "doc_id": 160, "seg_id": 63, "translation": { "en": "In addition, the following two aggravating factors exist in the present case:", "zh-HK": "另外，以下兩點亦是加重本案嚴重性的因素：" } }, { "doc_id": 160, "seg_id": 64, "translation": { "en": "The applicant has shown no remorse and there is a substantial risk of re-offending: at the interview with the psychologist and psychiatrist, the applicant denied the circumstances of the case and tried to shove responsibilities, hence the experts’ assessment that the applicant had a “moderate to high” risk of re-offending; and", "zh-HK": "申請人缺乏悔意並大有機會重犯：申請人在與心理學家和精神科醫生會面時否認案惰，推卸責任，故其重犯機會被專家評為「中至高」；及" } }, { "doc_id": 160, "seg_id": 65, "translation": { "en": "The grave impact of the incident on the two victims: as the boys were involuntarily molested by the applicant, during which violence and threats were used, the psychological trauma caused to the boys is easily imaginable. This is particularly so for X, who is living in a constant state of fear because the applicant knows where he resides and he is worried about the applicant looking for him and causing him trouble after release from prison.", "zh-HK": "事件對兩受害男童的嚴重影響：基於申請人對兩男童的侵犯是在他們不願意下進行，其中涉及暴力威嚇，對兩男童的心理傷害可想而知。特別是男童X，由於申請人知其住所，故他恐怕申請人出獄後會找他麻煩，終日活在惶恐之中。" } }, { "doc_id": 160, "seg_id": 66, "translation": { "en": "We do not agree with Mr Poon’s submission that the starting points for Charges 1 to 5 are manifestly excessive. For the first three charges, the most important aggravating feature is that the applicant had intimidated X verbally and shown him a fruit knife, forcing him to allow the applicant to perform those sexual acts on him.", "zh-HK": "本庭不同意潘大律師所說第一至五項的量刑基準明顯過高。就前三項控罪，最重要的加刑因素是申請人持生果刀及以言語恐嚇X，迫使他讓申請人作出這些性行為。" } }, { "doc_id": 160, "seg_id": 67, "translation": { "en": "As to the sentence for Charge 4, in CHOW YUEN FAI the Court of Appeal adopted starting points of 10 years and 8 years respectively for the two offences of “commits homosexual buggery with a man under the age of 21”. The appellant in that case committed buggery on two boys aged 13 and 12 respectively. No condom was used on either occasion. The Court of Appeal imposed a term of 10 years for the 1st charge on the ground that the appellant had taken photos and videos when molesting the victim, and imposed a term of 8 years for the 2nd charge in the absence of other aggravating factors. The maximum sentence for the above offence is one of life imprisonment, which is the same as that for “non-consensual buggery” with which the applicant in the present case was charged. However, what distinguishes the present case from CHOW YUEN FAI is that Y did not consent to the buggery and put up resistance, but was subdued by the applicant. The applicant imposed violence when committing buggery on Y forcibly, and in the course of the offence Y kept on crying out for pain but the applicant just ignored the child’s imploration. The applicant even threatened to get someone to beat Y up. In these serious circumstances, we see nothing wrong for Judge Poon to adopt, as she did, a higher starting point (ie 12 years) for Charge 4. Similarly, Charge 5 also involved intimidation by the applicant on Y.", "zh-HK": "就第四項刑期，上訴法庭在周遠輝 案就二項「與21歲以下男子作出同性肛交」罪定出分別10年及8年的量刑基準。該案的上訴人在沒有使用安全套的情況與兩名分別13及12歲的男童肛交。上訴法庭所定的第一項的10年刑期是因為上訴人在侵犯事主時拍照及錄影，而第二項所定的8年刑期是基於沒有其他加刑因素。上述控罪的最高刑罰是終身監禁，這與本案申請人被控的「未經同意下作出的肛交」罪的最高刑罰相同。但本案與周 遠 輝 案不同之處是Y不同意肛交的及作出反抗，但被申請人制服。申請人強行與Y肛交時使用武力。Y在肛交時是不停叫喊表示痛楚，但申請人漠視小童的哀求。申請人更恐嚇會找人毆打Y。在這些嚴重的情況下，潘法官就第四項控罪採用較高的量刑基準（即12年）並無不妥。同樣地，第五項控罪亦涉及申請人恐嚇Y。" } }, { "doc_id": 160, "seg_id": 68, "translation": { "en": "For the sake of discussion, even assuming that the individual terms of sentence in the two groups of offences are too long, the overall sentence for each group is not manifestly excessive whether viewed against the relevant facts themselves or compared with other cases. More importantly, as the Court of Appeal reiterated in HKSAR v NG MAN YEE (CACC 278/2013), it is in light of the facts of the particular case that the court has to consider whether the sentence imposed in that case is proper. That defendants in cases of a similar type may have received more lenient sentences is not a reason which warrants or requires the adoption of the same sentencing approach in the present case, because each case presents its own circumstances and sentencing is not a mechanical exercise.", "zh-HK": "本庭認為就算為了討論而假設兩組的個別刑期是過高，但這兩組控罪各自的總刑期，不論是根據本身案情或與其他案例比較也不是明顯過重。更重要的是正如上訴法庭在HKSAR v Ng Man Yee (吳敏兒) (CACC 278/2013) 一案重申，法庭需要考慮的是，以案情而言，本案的刑期是否正確。就算同類型案件的被告人可能被判處較輕刑期，這也不是法庭在本案需要採用同一的量刑的理據，這是因為每宗案件案情不同，量刑也不是機械式的作為。" } }, { "doc_id": 160, "seg_id": 69, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 160, "seg_id": 70, "translation": { "en": "For the above reasons, we have dismissed the application.", "zh-HK": "基於上述原因，本庭駁回申請。" } }, { "doc_id": 160, "seg_id": 71, "translation": { "en": "Mr Edmond Lee, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the respondent", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員李俊文代表。" } }, { "doc_id": 160, "seg_id": 72, "translation": { "en": "Mr Jackson Poon, instructed by Damien Shea & Co. and assigned by the Legal Aid Department, for the applicant", "zh-HK": "申請人：由法律援助署委派佘英輝律師行轉聘潘展平大律師代表。" } }, { "doc_id": 161, "seg_id": 1, "translation": { "en": "Hon Cheung, JA (giving the reasons for judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案理由書：" } }, { "doc_id": 161, "seg_id": 2, "translation": { "en": "Charges", "zh-HK": "控罪" } }, { "doc_id": 161, "seg_id": 3, "translation": { "en": "The applicant, together with 3 other defendants, was charged with multiple charges in the District Court. The applicant was the first defendant of the case. She was charged with 7 charges. H.H. Judge SM Sham convicted the applicant of the following charges after trial:", "zh-HK": "申請人與另外三名被告人在區域法院被控多項控罪，申請人是案件的第一被告人。她被控七項控罪。案件經法官沈小民審訊後，申請人被裁定以下五項罪名成立：" } }, { "doc_id": 161, "seg_id": 4, "translation": { "en": "The 1st and 2nd charges of “Handling stolen goods”, contrary to section 24 of the Theft Ordinance, Cap. 210.", "zh-HK": "第一及第二項「處理贓物」罪，違反《盜竊罪條例》(香港法例第 210 章)第 24 條；" } }, { "doc_id": 161, "seg_id": 5, "translation": { "en": "The 3rd charge of “Possessing equipment for making a false instrument”, contrary to section 76(1) of the Crimes Ordinance, Cap. 200.", "zh-HK": "三項「管有用作製造虛假文書的設備」罪，違反《刑事罪行條例》(香港法例第 200 章)第 76(1) 條；" } }, { "doc_id": 161, "seg_id": 6, "translation": { "en": "The 4th and 5th charges of “Possession of an identity card relating to another person”, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177.", "zh-HK": "第四及第五項「管有他人的身分證」罪，違反《人事登記條例》(香港法例第 177 章)第 7A(1A) 條。" } }, { "doc_id": 161, "seg_id": 7, "translation": { "en": "Furthermore, the applicant pleaded guilty to one count of “Possession of a dangerous drug” (the 6th charge), contrary to section 8(1)(a) and (2) of the Dangerous Ordinance, Cap. 134.", "zh-HK": "另外，申請人承認一項「管有危險藥物」罪（第六項控罪），違反《危險藥物條例》(香港法例第 134 章)第 8(1)(a) 及 (2) 條。" } }, { "doc_id": 161, "seg_id": 8, "translation": { "en": "Judge Sham sentenced the applicant to 5 years of imprisonment for charges 1 to 6. The applicant applied for leave to appeal against both conviction and sentence. Earlier, a single judge sitting in the Court of Appeal rejected the applicant’s application for leave to appeal against both conviction and sentence. Now, the applicant renews her application for leave to appeal against her convictions on charges 1 to 5. After hearing the application, this court has dismissed the application and will now give the reasons for judgment.", "zh-HK": "沈法官就第一至六項控罪判處申請人五年監禁。申請人不服定罪及判刑裁決，提出上訴許可申請，上訴法庭單一法官早前拒絕申請人就定罪和判刑提出的上訴許可申請。現申請人就其第一至第五項控罪的定罪更新其上訴許可申請。本庭於聆訊後駁回申請。現頒發判案理由。" } }, { "doc_id": 161, "seg_id": 9, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 161, "seg_id": 10, "translation": { "en": "Registered occupant at the hotel", "zh-HK": "酒店登記住戶" } }, { "doc_id": 161, "seg_id": 11, "translation": { "en": "The applicant and the 3rd defendant (“D3”) of the case were the registered occupants of room 1529 of the Harbour Plaza Hotel from 15 August 2013 to 27 August 2013. D3 signed the lease agreement with the hotel on 15 August 2013, and both of them were seen visiting and leaving the hotel in CCTV recordings since that day. When the police entered the said room for execution of a search warrant on 27 August 2013, the applicant, D3 and the other 2 defendants of the case were all found inside the room. The police seized multiple numbers of exhibits, including the following:", "zh-HK": "申請人與同案的第三被告人 (「D3」) 在 2013 年 8 月 15 日至 8 月 27 日期間是「8 度海逸酒店」1529 號房間的登記住戶。D3 於 2013 年 8 月 15 日與該酒店簽訂該房間的租約，CCTV 錄影紀錄顯示他們二人從該日起出入該酒店。警方於 2013 年 8 月 27 日進入該房間執行搜查令時，申請人、D3 及同案的另外兩名被告人均在該房間內，警方在該房間檢獲多項證物，包括如下物品：" } }, { "doc_id": 161, "seg_id": 12, "translation": { "en": "About 1,934 stolen letters or documents (Charge 1);", "zh-HK": "約1,934 份被盜的信件或文件（第一項控罪）；" } }, { "doc_id": 161, "seg_id": 13, "translation": { "en": "43 stolen bank cards (Charge 2);", "zh-HK": "43 張被盜的銀行卡（第二項控罪）；" } }, { "doc_id": 161, "seg_id": 14, "translation": { "en": "Equipment for making a false instrument including: (i) an encoder, (ii) one mini optical disc together with a user manual for encoder, (iii) 34 blank cards, (iv) 2 card readers and (v) 2 smart /SIM card readers (Charge 3);", "zh-HK": "可用作製造虛假文書的設備，包括 (i) 一部編碼器、(ii) 一片迷你光碟連同編碼器的使用說明、(iii)  34張空白卡、(iv) 兩部讀卡器及(v) 兩部智能卡閱讀器（第三項控罪）；" } }, { "doc_id": 161, "seg_id": 15, "translation": { "en": "2 identity cards relating to other persons (Charges 4 and 5);", "zh-HK": "兩張屬於他人的香港身分證（第四及第五項控罪）；" } }, { "doc_id": 161, "seg_id": 16, "translation": { "en": "Dangerous drugs relating to Charge 6; and", "zh-HK": "第六項控罪相關的危險藥物；及" } }, { "doc_id": 161, "seg_id": 17, "translation": { "en": "Notebook(s), computer(s) and items such as mobile phone(s)", "zh-HK": "記事簿、電腦以及行動電話等物品。" } }, { "doc_id": 161, "seg_id": 18, "translation": { "en": "The scene where items were seized", "zh-HK": "檢獲物品的現場" } }, { "doc_id": 161, "seg_id": 19, "translation": { "en": "As seen from the photos taken on the same day by the police identification bureau, some of the letters/documents as mentioned above in (1) were scattered on the floor between the bed and the window bay, while some were kept inside a transparent plastic container and file. One of the identity cards as mentioned in (4) above was placed by the side of a printer on a desk, while the other was inside a “BULOVA” box contained in a red paper bag with the above-mentioned bank cards in (2). A hard paper box containing one encoder, bill/s, mini optical disc and blank magnetic cards was on top of the bed with 4 laptop computers. Inside the bag on the window bay, there were card readers. A number of mobile phones were seized from inside the room, including an iPhone 5 (“iPhone 5”) smartphone on the top of the cabinet by the bed.", "zh-HK": "從警方鑑證科於同日在現場所拍攝的相片可見，上述 (1) 段之信件/文件部分散落在床與窗台之間的地面上，部分收納於透明膠盒及文件夾內。上述 (4) 段之身分證，其一被置於枱上打印機旁邊。而另一張與上述 (2) 段之銀行卡同被置於床上一個紅色紙袋內的一個「BULOVA」盒子內。一個裝有編碼器、票據、迷你光碟及空白磁卡的硬紙盒及四部筆記型電腦皆被置於床上。窗台上擺放的袋裏有讀卡器。該房間內檢獲多部行動電話，包括擺放於床頭櫃上的一部智能電話 iPhone 5 (「iPhone 5」)。" } }, { "doc_id": 161, "seg_id": 20, "translation": { "en": "The applicant’s fingerprints were found on documents, the plastic container that contained them and the two notebooks, which were seized at the scene.", "zh-HK": "警方從現場所檢獲的裝有文件的膠盒、文件及兩本記事簿上均發現附有屬於申請人的指模。" } }, { "doc_id": 161, "seg_id": 21, "translation": { "en": "The above stated facts which the prosecution relied on, and the items seized were not in dispute. They formed part of the admitted facts between the prosecution and the defence.", "zh-HK": "控方案情中所倚賴的上述事實及檢獲之證物並無爭議，為控辯雙方承認事實的一部分。" } }, { "doc_id": 161, "seg_id": 22, "translation": { "en": "Information arranged from stolen letters for use in criminal activities", "zh-HK": "從被盜的信件所整理用於犯罪的資料" } }, { "doc_id": 161, "seg_id": 23, "translation": { "en": "There was personal and bank information concerning others (others’ information) recorded in the above-mentioned 2 notebooks. There was a USB memory stick (“USB”) attached to the Apple MacBook Pro (“Macbook”) computer being seized at the scene. The said USB and the iPhone 5 mentioned above also contained others’ information.", "zh-HK": "上述兩本記事簿內寫有一些屬於他人的個人資料及銀行資料(「他人資料」)。現場檢獲的Apple MacBook Pro 電腦(「MacBook」）連接着一個 USB 記憶體(「USB」)，該 USB 以及上述 iPhone 5 亦存有一些他人資料。" } }, { "doc_id": 161, "seg_id": 24, "translation": { "en": "The applicant’s reply", "zh-HK": "申請人的回應" } }, { "doc_id": 161, "seg_id": 25, "translation": { "en": "On 27 August 2013, when arrested and cautioned by the police, the applicant said: “Those ice is for my own consumption. Other items do not belong to me.” The applicant willingly attended video-recorded interviews in the following 2 days, she remained silent or denied knowledge on items relating to charges 1 to 5.", "zh-HK": "在 2013 年 8 月 27 日當日，申請人被警方拘捕及經警誡下，回答：「啲冰係我食嘅，其它嘢唔係我。」申請人亦於其後兩天自願參與錄影會面，她就第一至五項控罪相關的物件的事宜保持緘默或否認知情。" } }, { "doc_id": 161, "seg_id": 26, "translation": { "en": "In the video-recorded interview(s), the applicant admitted that the above said Macbook together with the USB connected to it, another Acer computer (“Acer computer”) and the iPhone 5 were her belongings. She lent the Acer computer to D3 for his use.", "zh-HK": "申請人於錄影會面承認上述 MacBook 及連接該電腦的 USB、另一部 Acer 電腦(「Acer 電腦」)、以及 iPhone 5 是屬於她的物品。Acer 電腦是她借給 D3 使用。" } }, { "doc_id": 161, "seg_id": 27, "translation": { "en": "Defence case", "zh-HK": "辯方案情" } }, { "doc_id": 161, "seg_id": 28, "translation": { "en": "Living in the same room with the applicant", "zh-HK": "與申請人同住該房間" } }, { "doc_id": 161, "seg_id": 29, "translation": { "en": "The applicant did not give evidence in the original trial, but she called D3 as the first defence witness. D3 admitted that he committed the above mentioned charges 1 to 5 in the hotel room. D3 claimed that although the applicant and he lived at the same premises for many days, she did not participate in his criminal activities.", "zh-HK": "申請人在原審時沒有作供，但傳召 D3 作為辯方第一證人。D3 承認在酒店房干犯了上述第一至五項控罪。D3 聲稱雖然申請人和他同住上址多日，但她並沒有參與他的犯罪活動。" } }, { "doc_id": 161, "seg_id": 30, "translation": { "en": "D3 said in his evidence that he and the applicant were friends who had been acquainted for 2 to 3 years and were on good terms. At the time when he moved into the room, the name of the applicant was registered so that another key card would be assigned. He and the applicant each held a key card to the room. Sometimes, D3 would have friends staying overnight, including the second defendant (“D2”) and the fourth defendant (“D4”). The rental payment for the room was paid by D4.", "zh-HK": "D3 供稱，他與申請人是兩至三年前認識的朋友，雙方關係良好。當初搬入該房間時登記了申請人的名字以便獲發多一張房間匙卡。他和申請人各持有該房間的房卡。有時候 D3 的朋友亦會到該處留宿，其中包括同案第二被告人(「D2」) 及第四被告人(「D4」)。該房間的租金由 D4 支付。" } }, { "doc_id": 161, "seg_id": 31, "translation": { "en": "D3 explained that he invited the applicant to live in that room together so that she did not need to carry heavy items while walking up four flight of stairs to go home all the time, as she had injured her arm/hand. Whenever one of them went home, the other could still use the room.", "zh-HK": "D3 解釋，他邀請申請人一起居於該房間的原因是她手部受傷，以免她經常手持重物走四層樓梯回家。他們其中一人回家時，另一人仍可使用該房間。" } }, { "doc_id": 161, "seg_id": 32, "translation": { "en": "Letters/Documents", "zh-HK": "信件/文件" } }, { "doc_id": 161, "seg_id": 33, "translation": { "en": "D3 claimed that he rented the room to “do things”, he explained that he used the room to sort through letters that were stolen. He rented the room because he did not want his girlfriend and his family to know (about this). He said that all letters seized on the premises were stolen by himself and another friend named “Ah B”. He needed the room to sort through the letters since it was inconvenient for him to store them at home. As shown from the photos of the scene, after he had sorted the documents into categories, (he then) arranged and stored them securely into folders, and some of them were stored in a plastic container. He discarded the unwanted documents onto the floor. He had not shown the applicant the folder with the sorted documents. However, at times when these things obstructed the applicant, she would move them to a corner. The applicant had enquired about the use of those documents, D3 replied that he needed those to do things. He did not tell the applicant the true situation, and he had never let the applicant assist in sorting through those documents.", "zh-HK": "D3 稱他租用該房間「做嘢」，他解釋是用該房間處理偷竊回來的信件。他租用酒店房間，因為不想讓家人及女朋友知道。他說在該房間所檢獲的信件都是他與另一名朋友「阿B」偷竊所得的信件，他需要以該房間整理信件，因為不方便將它們存放於家中。從現場相片可見，他將文件分類後，把文件整理妥當收納於文件冊，亦有一些存放在膠盒內，他將不要文件丟在地上；他並沒有將整理的文件冊展示予申請人看，但有時候，當這些物件阻礙到申請人，她會將它們搬到一角。申請人曾問 D3 文件的用途，D3 回答是他需要用來做事。他沒有告訴申請人真實情況，他亦從沒有讓申請人協助處理該等文件。" } }, { "doc_id": 161, "seg_id": 34, "translation": { "en": "Bank cards and identity cards", "zh-HK": "銀行卡及身分證" } }, { "doc_id": 161, "seg_id": 35, "translation": { "en": "D3 claimed that the red paper bag on the bed belonged to him. He was also the one who put the bank cards and one identity card relating to the charge(s) into the “BULOVA” box that was inside the bag. The applicant had never opened the “BULOVA” box to D3’s knowledge. He emphasized that each of them had their own personal belongings and they would not touch each other’s stuff. However, sometimes, they might put their own belongings into the same bag. The identity card found on the table was in his (possession).", "zh-HK": "D3 稱在床上的紅色紙袋屬他所有，亦是他將控罪所涉及的銀行卡及一張身分證放置於該袋內的「BULOVA」盒子。據 D3 所知，申請人不曾打開該「BULOVA」盒子。他強調雙方都有各自的私人物品，不會碰對方的東西，但是有時候可能會把彼此的物品存放在同一個袋子裏。枱上的身分證亦是他（管有）的。" } }, { "doc_id": 161, "seg_id": 36, "translation": { "en": "Encoder and mini optical disc", "zh-HK": "編碼器及迷你光碟" } }, { "doc_id": 161, "seg_id": 37, "translation": { "en": "The encoder and the mini optical disc found inside the hard paper box on the bed by the police were purchased by D3 through the applicant’s Taobao account. The applicant has the habit of shopping from Taobao site. D3 found opening an account troublesome, since it required verification of identity as well as registration of a mainland phone number, therefore, (he) used the balance in the applicant’s account to shop, however, he hid his purchase of the encoder from the applicant. He repaid the applicant in cash and arranged for courier to deliver the encoder to the hotel. The mini optical disc contained the drivers to the encoder.", "zh-HK": "警方在該房間床上找到的硬紙盒內的編碼器及迷你光碟是 D3 透過申請人的淘寶網賬戶購買的。申請人有在淘寶網購物的習慣。而 D3 有感開賬戶困難，不但須認證身分，更須登記內地電話號碼，遂以申請人的賬戶內之餘款購物，但他隱瞞申請人購買該編碼器之事，以現金付還申請人，並讓速遞公司將編碼器等送遞到該酒店。迷你光碟內有該編碼器的驅動程式。" } }, { "doc_id": 161, "seg_id": 38, "translation": { "en": "Computer(s) and USB", "zh-HK": "電腦及 USB" } }, { "doc_id": 161, "seg_id": 39, "translation": { "en": "D3 said that the MacBook and the Acer computer seized by the police from the room belonged to the applicant. He borrowed them from the applicant without telling her (his) purposes. He had downloaded and installed software for the card readers in the Acer computer. (He) tried to replicate the information stored in the bank cards onto the blank magnetic cards by connecting the card readers to the computer. The applicant had not asked him about the software and he did not volunteer the information.", "zh-HK": "D3 供稱，在該房間裏被警方檢取的 MacBook  及 Acer 電腦屬申請人所有，他向申請人借用這兩部電腦，卻沒有告訴她用途。他曾在 Acer 電腦下載並裝設讀卡器相關的軟件，連接到讀卡器，嘗試用以讀寫銀行卡上的資料，將複製到空白磁卡上。申請人並沒有詢問他關於軟件的事情，他亦沒主動告知。" } }, { "doc_id": 161, "seg_id": 40, "translation": { "en": "D3 had also tried to alter the words on the documents being scanned into the computer (PDF format) by using the MacBook, for example monthly statement of others. (He) created false address proof for others, he did not tell the applicant about this, and he moved related files to the USB and deleted them from the MacBook. The USB belonged to D3.", "zh-HK": "D3 亦嘗試以 MacBook 修改被掃描到電腦上的文件(PDF 格式)裏的文字，例如他人的月結單等，替他人製作虛假的地址證明文件，他沒有告知申請人此事，並會把相關檔案移至 USB 然後從 MacBook 中刪除，該 USB 是屬於 D3 個人的物品。" } }, { "doc_id": 161, "seg_id": 41, "translation": { "en": "Notebook containing other’s information and D3’s purpose", "zh-HK": "記載他人資料的筆記及 D3 的目的" } }, { "doc_id": 161, "seg_id": 42, "translation": { "en": "D3 said that after he had sorted through the documents, he jotted down information on the owners of the stolen letters into 2 notebooks. This is one “Gambol” notebook and a purple coloured notebook in order to activate the stolen bank cards. He also intended to use the above-mentioned tools to replicate credit cards, however, he had not succeeded yet.", "zh-HK": "D3 稱，他將文件整理妥當後，把信件失主的他人資料抄寫於兩本記事簿內，即一本「Gambol」筆記簿及一本紫色記事簿，用於啟動被盜的銀行卡；他亦打算以上述儀器作複製信用卡等用途，但尚未成功。" } }, { "doc_id": 161, "seg_id": 43, "translation": { "en": "He borrowed the purple coloured notebook from the applicant. Later, he clarified that he bought it with the applicant. After the applicant had taken out the loose pages she had written on, she lent it to D3 and had not touched it again. D3 inserted new loose pages for use. The “Gambol” notebook belonged to him, the applicant had not touched that notebook.", "zh-HK": "紫色的記事簿是他向申請人所借，後來 D3 澄清說是與申請人一起購買，申請人將自己所寫的活頁取出借給D3後就沒再碰它。D3 插入新的活頁使用。「Gambol」筆記簿屬於他本人，申請人沒碰該本筆記。" } }, { "doc_id": 161, "seg_id": 44, "translation": { "en": "Mobile phones", "zh-HK": "行動電話" } }, { "doc_id": 161, "seg_id": 45, "translation": { "en": "D3 said that after he left Hei Ling Chau Correctional Institution, he had no phone to use, therefore the applicant lent him the iPhone 5 together with the SIM card inside the phone. In July 2013, he bought another phone, intending to transfer all the information to the new phone and returned the iPhone 5 to the applicant. In fact, the numerous number of phones seized in the hotel room all belonged to the applicant.", "zh-HK": "D3 稱，2012 年他離開位於喜靈州的懲教設施後，因為沒有電話可用，申請人遂把 iPhone 5 連同放置其內的電話卡一併借給他使用。他於 2013 年 7 月買入另一部電話，打算將資料都轉移到新電話再把 iPhone 5 歸還申請人。實際上從酒店房間內檢獲的多部行動電話均屬於申請人。" } }, { "doc_id": 161, "seg_id": 46, "translation": { "en": "Verdict by Judge Sham", "zh-HK": "沈法官的裁決" } }, { "doc_id": 161, "seg_id": 47, "translation": { "en": "Judge Sham said that D3’s evidence in short, was that he admitted using the hotel room to conduct his criminal activities. Although D3 lived in the same premises with the applicant, the applicant had nothing to do with this matter. Judge Sham said:", "zh-HK": "沈法官說 D3 的證詞簡單而言是他承認利用酒店房間進行他的犯罪活動，雖然 D3 與申請人同住上址，但申請人與此事無關。沈法官說：" } }, { "doc_id": 161, "seg_id": 48, "translation": { "en": "The question was whether the 3rd defendant’s evidence relating to the 1st defendant having nothing to do with this matter was credible. If it was not, from the inference made by the evidence accepted by the court, whether I can reach an irresistible inference that the 1st and the 3rd defendant were carrying out criminal activities in the premises with the same criminal purpose.”", "zh-HK": "問題是第 3 被告的証詞特別關於第 1 被告與此事無關的說法是否可信，若不可信的話，從法庭所接納的證據來推斷，本席是否可以達至唯一的結論第 1 被告與第 3 被告是為著共同犯罪的目的在上址進行相關的犯罪活動。」" } }, { "doc_id": 161, "seg_id": 49, "translation": { "en": "Judge Sham did not accept D3 as an honest witness, he said:", "zh-HK": "沈法官不接納 D3 是誠實的證人，他說：" } }, { "doc_id": 161, "seg_id": 50, "translation": { "en": "“The 3rd defendant as a witness", "zh-HK": "「第 3 被告作為一位證人" } }, { "doc_id": 161, "seg_id": 51, "translation": { "en": "Having heard his evidence in court, undoubtedly, he was not an honest witness. I accepted his evidence only on his admission of his own criminal activities. Concerning his explanation on behalf of the 1st defendant that it has nothing to do with her, his version was contradictory, I totally reject them, and found that he was only telling lies, hoping that he could deceive the court of what the 1st defendant’s involvement was.”", "zh-HK": "聽過他在庭上的供詞，毫無疑問，他並非是一位實話實說的証人。本席接納他的證供只是局限於他所承認自己進行犯罪活動這一方面，至於他為第 1 被告解說這事與她無關，他的解釋處處反駁，本席完全不接納，並認為他謊話連篇，只希望瞞騙法庭替第 1 被告開脫罷了。」" } }, { "doc_id": 161, "seg_id": 52, "translation": { "en": "Judge Sham inferred that the applicant and D3 lived in the same room for the same criminal purpose. Judge Sham found the applicant guilty of all relevant charges (except the 8th charge), he said:", "zh-HK": "沈法官推斷申請人與 D3 只是為共同犯罪目的而一起住在該房間。沈法官裁定申請人有關的控罪罪名成立(除第 8 控罪例外)，他說：" } }, { "doc_id": 161, "seg_id": 53, "translation": { "en": "“Joint Enterprise", "zh-HK": "「共同行事（Joint Enterprise）" } }, { "doc_id": 161, "seg_id": 54, "translation": { "en": "Based on the evidence before the court, I have absolutely no difficulty in reaching the only inference that the 1st defendant and the 3rd defendant, from the moment they moved into the hotel room, lived together for the same criminal purposes. Only this could reasonably explain why they would live in the same room with such ordinary relationship. Their purposes were the two purposes as D3 explained – sort and save the personal and bank information gathered from the letters stolen by D3 and use the information to activate credit cards of others for own use; or to input the above data onto blank cards with the help of the encoder, to replicate cards for use.”", "zh-HK": "基於法庭前的證據，本席完全沒有困難作出唯一的推斷第 1 和第 3 被告入住酒店房那一刻，他倆是為著共同犯罪目的而一起在那裡居住–這樣才能合理地解釋，為何他倆這般平常關係會住在同一酒店房間內。他們的目的就是第 3 被告所說那兩個目的–從第 3被告偷來的信件中，將別人個人及銀行資料整理存檔，利用有關資料啟動別人的信用卡拿來使用，又或是將空白的卡利用編碼器等設備寫上資料、［複］製信用卡以便使用。」" } }, { "doc_id": 161, "seg_id": 55, "translation": { "en": "They acted in a joint enterprise under the same criminal purpose. Who did what was not material in the course of the crime, because in the legal concept of joint enterprise, one is responsible for another’s actions.", "zh-HK": "他們是為著同一犯罪目而共同行事，在犯罪過程中，究竟誰做什麼並不重要，因為在共同行事的法律概念中，每一個人都要為另一人所做的事負責。" } }, { "doc_id": 161, "seg_id": 56, "translation": { "en": "All the letters or documents found inside the hotel room (contained) personal and bank information that belonged to others. Part of those information could be found in the 1st defendant’s mobile phone (iPhone 5). I have absolutely no difficulty in drawing the inference that she understood those information as being obtained through illegal means and that she possessed such information also for illegal purposes. Undoubtedly, she was dishonest in doing so.”", "zh-HK": "在酒店房間內找到的信件或文件，全部都是屬於其他人的個人或銀行資料，部分的資料可以在第 1 被告的手提電話（iPhone 5）內找到，本席完全沒有困難推斷她了解到這些資料是從不法途徑獲得的，她管有這些資料也是作非法用途，毫無疑問她這樣做是屬於不誠實。」" } }, { "doc_id": 161, "seg_id": 57, "translation": { "en": "Judge Sham opined that it was only neutral evidence that the applicant’s fingerprints were being found on items. It was not surprising that she left her fingerprints since the applicant lived in that room.", "zh-HK": "沈法官認為物品上附有申請人的指模一事屬中性證據，因為申請人居住在該房間，留下指模不足為奇。" } }, { "doc_id": 161, "seg_id": 58, "translation": { "en": "Judge Sham concluded that the prosecution had proved charges 1 to 5 beyond all reasonable doubt and convicted the applicant of these 5 charges.", "zh-HK": "沈法官裁定控方已在毫無合理疑點下證明第一至第五項控罪，判申請人此五項控罪罪名成立。" } }, { "doc_id": 161, "seg_id": 59, "translation": { "en": "Grounds of appeal raised by the applicant", "zh-HK": "申請人的上訴理據" } }, { "doc_id": 161, "seg_id": 60, "translation": { "en": "Counsel for the applicant, Ms. Chong, Sezen K. Y., submitted 9 grounds of appeal. The court now deals with these grounds.", "zh-HK": "代表申請人的莊君如大律師共提出九項上訴理據。現本庭分別處理這些理據。" } }, { "doc_id": 161, "seg_id": 61, "translation": { "en": "The 1st and the 2nd charges of “handling stolen goods”", "zh-HK": "第一及第二項控罪「處理贓物」罪" } }, { "doc_id": 161, "seg_id": 62, "translation": { "en": "On the 1st and 2nd charges, Ms. Chong submitted the following 5 grounds:", "zh-HK": "就第一及第二項控罪，莊大律師提出以下五項理據：" } }, { "doc_id": 161, "seg_id": 63, "translation": { "en": "Judge Sham did not specify on which one of the two limbs of “handling stolen goods” he convicted the applicant, his verdict was not clear.", "zh-HK": "沈法官沒有指明是基於「處理贓物」罪的兩款犯罪手法中的哪一款將申請人定罪，裁決不清晰。" } }, { "doc_id": 161, "seg_id": 64, "translation": { "en": "There was insufficient evidence to prove that the applicant had legal possession or control of the stolen goods.", "zh-HK": "沒有足夠證據證明申請人對於贓物有法律上的管有或控制。" } }, { "doc_id": 161, "seg_id": 65, "translation": { "en": "There was insufficient evidence to prove that the applicant assisted D3 in handling stolen goods in a joint enterprise.", "zh-HK": "沒有足夠證據證明申請人協助 D3 處理贓物，共同行事。" } }, { "doc_id": 161, "seg_id": 66, "translation": { "en": "The applicant and D3 were jointly charged with having handled stolen goods for the benefit of another, however in this case, there was no evidence to prove who this other person was, since one of the fundamental ingredients for conviction was missing, the prosecution had failed (to prove its case).", "zh-HK": "申請人與 D3 共同被控為了另一個人的利益而處理贓物，但本案沒有任何證據證明另一人是誰，定罪的一個基本元素欠缺，控方未能舉證。" } }, { "doc_id": 161, "seg_id": 67, "translation": { "en": "D3 was the thief who stole the stolen goods, he could not have committed “handling stolen goods” at the same time. Therefore, he could not have handled the stolen goods with the applicant in a joint enterprise. Judge Sham had wrongly applied the legal principle of “joint enterprise”.", "zh-HK": "D3 是盜取相關贓物者，他不能同時干犯「處理贓物」罪，因此不能與申請人共同行事處理贓物，沈法官錯誤地引用「共同行事」的法律原則。" } }, { "doc_id": 161, "seg_id": 68, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 161, "seg_id": 69, "translation": { "en": "Ground 1: did not specify which one of the limbs the conviction was based upon", "zh-HK": "理據一：沒有指明定罪是基於兩類犯罪手法的哪一類" } }, { "doc_id": 161, "seg_id": 70, "translation": { "en": "Undoubtedly, there are 2 forms or limbs in “handling stolen goods”:", "zh-HK": "無疑「處理贓物」罪涉及兩類犯罪手法或方式：" } }, { "doc_id": 161, "seg_id": 71, "translation": { "en": "The 1st form: receive or arrange to receive [the receive form].", "zh-HK": "第一類：收受(receive) 或安排收受(arrange to receive)(「收受方式」)。" } }, { "doc_id": 161, "seg_id": 72, "translation": { "en": "The 2nd form: undertake or assist or arrange to undertake or assist in the retention, removal, disposal or realization by another person or for the benefit of another person [the assist form].", "zh-HK": "第二類：從事、協助　(undertake or assist)　或安排從事、協助　(arrange to undertake or assist) 　另一個人或為另一個人的利益而保留、搬遷、處置或變現(「協助方式」)。" } }, { "doc_id": 161, "seg_id": 73, "translation": { "en": "Although section 24(1) involves 2 different forms of “handling stolen goods”, as pointed out in R v Nicklin (1977) 64 Cr App R 205, the section itself only creates a single offence of “handling stolen goods”. Furthermore, even if the indictment has not expressively set out which limb the defendant was charged with, it does not amount to a defective indictment. However, Nicklin pointed out at the same time, that if the prosecution had uncertainty about the form of handling the defendant had committed, they could cover both limbs by laying alternative charges. These alternative charges would not violate the principle against “duplicity”.", "zh-HK": "雖然第 24(1) 條涉及兩種不同「處理贓物」罪的方式，但正如 R v Nicklin (1977) 64 Cr App R 205 指出，該條例本身只構成一條「處理贓物」罪。另外，就算公訴書沒有說明被告人是以哪一類方式行事，這也不構成公訴書欠妥。但 Nicklin　同時指出，如果控方未能確實被告人是以哪一類的方式行事，它可以在公訴書內以交替控罪的形式同時依賴第一及第二類方式行事。這交替控罪並不會違反「不可以有重叠控罪」的原則。" } }, { "doc_id": 161, "seg_id": 74, "translation": { "en": "The facts of the Nicklin case demonstrate the importance of alternative charges. In that case, the defendant was charged with receiving stolen goods, i.e., the 1st form of “receiving” “stolen goods”. He pleaded not guilty, however, he pleaded guilty to assisting in the disposal of stolen goods by another person, i.e., he committed the crime in the form of “assisting”. The prosecution did not accept the defendant’s plea on the limb of “assisting”. The original trial Judge directed the jury that they could acquit the defendant of “handling stolen goods” in the form of “receiving”, but they could convict the defendant of “handling stolen goods” in the form of assisting. At the end, the jury convicted the defendant of handling stolen goods in the form of assisting. The Court of Appeal in England pointed out that, since the prosecution did not accept the defendant’s plea to committing “handling stolen goods” in the form of “assisting” and it did not put forward an alternative charge, the only charge the jury needed to consider was whether the defendant handled stolen goods in the form of “receiving”. Under such circumstances, it was an unsatisfactory verdict for the defendant to be convicted of a charge he was not prosecuted for, therefore, the (conviction) needed to be quashed.", "zh-HK": "Nicklin 本身的案情顯示交替控罪的重要性。在該案，被告人是被控收受贓物，即第一類「收受方式」的「處理贓物」罪。他否認控罪，但承認協助他人搬遷失竊的物品，即以「協助方式」犯罪。控方沒有接受被告人承認以「協助方式」行事。原審法官指導陪審團他們可以裁定被告人以「收受方式」干犯「處理贓物」罪無罪，但可以裁定被告人以「協助方式」干犯「處理贓物」罪罪名成立。陪審團結果裁定被告人以「協助方式」干犯「處理贓物」罪罪名成立。英國上訴法庭指出由於控方沒有接納被告人承認他以「協助方式」干犯「處理贓物」罪及沒有提出交替的控罪，陪審團唯一需要處理的控罪就是被告人是否以「收受方式」處理贓物。在這情況下，被告人被裁定一項他沒有被檢控的控罪罪名成立，這裁決是不穩妥及需要被撤銷。" } }, { "doc_id": 161, "seg_id": 75, "translation": { "en": "The Court of Appeal in Hong Kong endorsed the principle in Nicklin in The Queen v Keung Sai Chung and others CACC 19/1985, further, the court disagreed that other cases might support the argument that “handling stolen goods” involves two offences.", "zh-HK": "香港上訴法庭在 The Queen v Keung Sai Chung and others CACC 19/1985 確認 Nicklin 的原則及不同意其他案例可能支持「處理贓物」罪涉及兩種罪行的說法。" } }, { "doc_id": 161, "seg_id": 76, "translation": { "en": "The indictment of this case set out 2 forms of handling stolen goods, however the prosecution did not lay any alternative charge. At the outset of the original trial, the applicant did not take issue with these 2 limbs. In the course of the trial, the defense put forward by the applicant was that she had absolutely no knowledge of the information on the letters or bank cards, nor did she know of their uses. She had not taken part in (any) criminal activities. Whether her actions constituted “handling stolen goods” in the form or “receiving” or “assisting” was not the issue in the original trial. The applicant’s legal representative, Ms. Chong, only argued in her final submission that by setting out both forms of handling in the same set of particulars of offence, the prosecution might have violated the principle against duplicity.", "zh-HK": "本案的公訴書臚列了兩種處理贓物的方式，但沒有以交替控罪的形式提出檢控。申請人在原審開案時並沒有提出任何針對這兩類犯罪方式的爭議。在審訊期間，申請人提出的抗辯理由是她完全不知道涉案信件及銀行卡的內容及用處，和沒有參與犯罪活動。審訊的爭論點並不是她的行為是否構成「收受方式」或以「協助方式」干犯「處理贓物」罪。代表申請人的莊大律師只是在結案陳詞時才提出控方以兩種方式的指控一併寫在罪行詳情中，或者有違反「控罪不可以重叠」的原則。" } }, { "doc_id": 161, "seg_id": 77, "translation": { "en": "Judge Sham dealt with this in his reasons for verdict. He quoted section 24 of the “Theft Ordinance” and Archbold (2015) 22-219 to explain that the section creates a single offence, and he opined that it encompasses both limbs being covered in a single charge. The applicant’s situation also encompassed both limbs:", "zh-HK": "沈法官在裁決理由書處理這一點。他引用《盜竊罪條例》第 24 條的條文及 Archbold (2015) 22-219 段說明該條例構成單一罪行，他認為可以涵蓋兩種犯罪模式單一處理而提出檢控，而申請人的情況亦涵蓋兩種犯罪模式：" } }, { "doc_id": 161, "seg_id": 78, "translation": { "en": "From the discussion in the above legal literature, it is obvious that there is more than one form of handling stolen goods, however they can all be generalized into a single offence. Therefore, the issue was not on whether multiple charges should be laid, rather it was on whether the particulars of offence had made it clear as to which form of dealing was being alleged. It was the prosecution’s duty to expressly point out which limb they were relying on, so that the defendant can better prepare for his/her defence. As regards laying one single charge or multiple charges, it was only a matter of practice, it seems that it was not a mandatory requirement of the law: in other words, I opined that the prosecution can still lay down a single charge to cover forms (1) and (2) of handling stolen goods.", "zh-HK": "從以上的法律文獻討論，很明顯縱使處理贓物罪可有不同模式進行，但都是歸納為單一罪行。因此重點不在於應否提出多項控罪控告，而是罪行詳情是否令人清楚明白所指控的模式是什麼。如未清楚，控方有責任指明他們依賴何種犯罪模式提出檢控，以便被告人知所應對。對於是否提出一項或是多項處理贓物罪只是處理手法而已，看來並不像屬於法則上的硬性規定；換句話說，涵概 (1) 和 (2) 的犯罪模式，本席認為控方仍可以單一處理贓物罪提出檢控。" } }, { "doc_id": 161, "seg_id": 79, "translation": { "en": "In this case, the police found D1 in the hotel room. Those stolen goods were also found in the hotel room. Stolen information was found in D1’s mobile phone and the usb stick inserted into computer, obviously, the information would be used on crimes concerning credit cards. D1 acted with others in crime, undoubtedly, not only for herself, but also for the benefit of another. The above conditions encompass both limbs (1) and (2) of the offence, the prosecution’s allegation was very clear and the defence would have no difficulty understanding it. Thus, in the circumstances of this case, I find that a single charge of handling stolen goods is not problematic and it was clear enough for the defence to understand the subject of the charge.", "zh-HK": "本案警方是在酒店房間內找到第 1 被告，而那些贓物也在酒店房間內。第 1 被告的手提電話和插著其電腦的手指內存有被盜的資料，而明顯這些資料會被用在與信用卡罪行之上。第 1 被告與他人一起作案，毫無疑問她不單只為了自己也為著別人的利益這樣做。這樣的情況涵概 (1) 和 (2) 的犯罪模式，控方的指控是相當清楚，辯方也不難明白。因此，在本案的情況，本席認為單一的處理贓物罪沒有問題，並足已令辯方了解控方所作的指控是甚麼。" } }, { "doc_id": 161, "seg_id": 80, "translation": { "en": "The prosecution submitted an appeal case HKSAR v CHAN Wah-heung CACC127/2014, although the court mainly discussed the legal concept of “recent possession”, it was worth noting that when the Court of Appeal changed the conviction of theft by the original trial Judge to one of handling stolen goods, the court did not point out on which limb the conviction was based, seemingly taking handling stolen goods as one single offence.”", "zh-HK": "在控方呈遞的一宗上訴庭案例陳華香CACC 127/2014，雖然上訴庭在該案主要談論「新近管有」的法律概念，但值得留意的是上訴庭更改原審法官盜竊罪之定罪為處理贓物罪時，也沒有指明是 (1) 和 (2) 的犯罪模式，看來是將處理贓物罪視為單一罪行處理而已。」" } }, { "doc_id": 161, "seg_id": 81, "translation": { "en": "This court opines that although the prosecution had not charged the applicant with alternative charges on the forms of “handling stolen goods”, the particulars of offence had set out both forms in the indictment, which is different from Nicklin. According to the circumstances of this case, it is obvious that the applicant had committed the crime in the form of receiving.", "zh-HK": "本庭認為雖然控方在本案沒有以交替控罪的形式檢控申請人以哪一類方式「處理贓物」罪，但公訴書的詳情同時列出兩種方式的犯罪行為，這與 Nicklin 案情不同。根據本案情況，申請人是明顯以「收受方式」干犯控罪。" } }, { "doc_id": 161, "seg_id": 82, "translation": { "en": "First of all, D3 admitted that he stole the letters and bank cards. Judge Sham summarized the criminal activities D3 had admitted on each charge, in which was mentioned that D3 admitted renting the hotel room for convenience in sorting through letters, his purposes including:", "zh-HK": "首先，D3 是承認他偷取信件及銀行卡。沈法官撮要了 D3 就每項控罪所承認的犯罪活動後，提到 D3 承認租住酒店房間是為了方便整理偷來信件的資料，其目的包括：" } }, { "doc_id": 161, "seg_id": 83, "translation": { "en": "To activate credit cards belonging to others by using the personal and bank information (he) stole for use; and", "zh-HK": "利用偷來的個人及銀行資料來啟動屬於他人的信用卡以便使用；及" } }, { "doc_id": 161, "seg_id": 84, "translation": { "en": "To use the encoder to try duplicate the blank cards into credit cards for use.", "zh-HK": "利用編碼器等設備嘗試把那些空白卡複製成信用卡以便使用。" } }, { "doc_id": 161, "seg_id": 85, "translation": { "en": "The Appeal Court of England in R v Dolan (1976) 62 Cr App R 36 (page 39) pointed out that if a defendant handled stolen goods in the course of theft, that would not amount to having committed “handling stolen goods”. However, if the defendant handled the stolen goods in another occasion after the act of theft, he might have committed both “theft” and “handling stolen goods”. Therefore, the act of theft had been completed when D3 took away the stolen documents from the letter boxes and left the building. He then brought the letters back to the hotel and sorted through them for information arrangement and record at a later time, he had already committed “handling stolen goods”. The Court of Appeal confirmed the legal principle of Dolan in HKSAR v. CHENG Chi-wai [2012] 4 HKC 290, 598 D-E.", "zh-HK": "英國上訴庭在 R v Dolan (1976) 62 Cr App R 36 (39 頁)一案亦指出，一名被告若在偷竊過程中處理贓物，是不會干犯「處理贓物」罪的。但若該被告是在發生偷竊之後的另一場合處理那些贓物，他是可以干犯了「偷竊」罪和「處理贓物」罪。因此 D3 在大廈信箱拿偷竊的文件離開時，偷竊過程已經完結。他之後把信件帶回酒店房間及在較後時間把信件內的資料整理存檔，他亦已干犯了「處理贓物」罪。上訴庭在 HKSAR v. CHENG Chi-wai [2012] 4 HKC 590, 598 D-Ｅ確認 Dolan 的法律原則。" } }, { "doc_id": 161, "seg_id": 86, "translation": { "en": "The applicant was the registered occupant of the room.", "zh-HK": "申請人是該房間之登記住戶。" } }, { "doc_id": 161, "seg_id": 87, "translation": { "en": "The two computers claimed to have been borrowed by D3 were used to download software relating to the card readers and to sort through others’ information that was stolen respectively; and that information was stored in the USB connected to one of the computers.", "zh-HK": "D3 所聲稱向申請人借用兩部電腦，曾分別使用它們下載閱卡器的軟件及處理被盜的他人資料；而資料存放於接到其中一部電腦的 USB。" } }, { "doc_id": 161, "seg_id": 88, "translation": { "en": "D3 claimed that he borrowed the applicant’s iPhone 5, in which there was information of others and D3 had not transferred the information to his own phone by the time he was arrested.", "zh-HK": "D3 聲稱借用申請人的 iPhone 5，其中存有他人資料，而 D3 被捕時仍未將資料轉移至自己的手機。" } }, { "doc_id": 161, "seg_id": 89, "translation": { "en": "The encoder set out in the 3rd charge was purchased through the applicant’s Taobao account.", "zh-HK": "第三項控罪所指的編碼器乃透過申請人的淘寶網賬戶所購得。" } }, { "doc_id": 161, "seg_id": 90, "translation": { "en": "One purple-coloured notebook containing others’ information was lent to D3 for his use after the applicant had bought it.", "zh-HK": "一本記載有他人資料的紫色記事簿是由申請人購入後借給 D3 使用。" } }, { "doc_id": 161, "seg_id": 91, "translation": { "en": "To summarize the facts of the case, the prosecution had adduced sufficient evidence to prove that the applicant and D3 shared the same criminal purpose and committed in the room, “handling stolen goods” in the first form of “receiving”:", "zh-HK": "綜觀案情，控方是提出足夠證據證明申請人和 D3 是有共同犯罪目的在房間內干犯包括第一種「收受方式」行事的「處理贓物」罪：" } }, { "doc_id": 161, "seg_id": 92, "translation": { "en": "Both the applicant and D3 were registered occupants of the hotel room and intended to stay for 47 days until 30 September. The applicant had lived there for 13 days up to the 27 August when the police raided the room. If it wasn’t for the police operation, the applicant would have continued her stay in the room for a longer time.", "zh-HK": "申請人和 D3 均是酒店房間的登記住客，打算租住 47 日至 9 月 30 日。直至警方於 8 月 27 日進行搜查，申請人已經在那裏居住了 13 天，若不是警方的行動，申請人會在房間繼續居住多一段日子；" } }, { "doc_id": 161, "seg_id": 93, "translation": { "en": "From the photos submitted by the prosecution, the hotel room was of an open plan with no partitioned space. The majority of the documents and letters were scattered on the floor inside the room, the applicant must have been aware of their existence and had the opportunity to touch, read and understand their content;", "zh-HK": "從控方提交的照片所顯示，該酒店房間是開放式，沒有獨立私人空間，而涉案的文件及信件大部分都是凌散地被擺放在房間內，申請人必然知道這些文件的存在，亦有機會接觸、閱讀及了解文件的內容；" } }, { "doc_id": 161, "seg_id": 94, "translation": { "en": "The scattered documents and letters did not belong to either the applicant or D3. The documents contained personal information. Simply from the names printed on the documents, there was no question the applicant knew they were stolen properties;", "zh-HK": "這些被隨處擺放的文件或書信都不屬於申請人或D3，文件本身載有個人資料，單看印在文件上的名字申請人必然已知它們是被偷竊的財物；" } }, { "doc_id": 161, "seg_id": 95, "translation": { "en": "The applicant and D3 were not girlfriend and boyfriend, they were not in any way related, when the applicant saw these stolen properties, she should have returned to her own home. There was no reasonable excuse for her to continue her stay in the hotel room;", "zh-HK": "申請人和 D3 並非是男女朋友，關係非親非故，申請人看到這些被偷竊的財物理應離開返回自己家居住，實在沒有合理的理由繼續留在酒店房間；" } }, { "doc_id": 161, "seg_id": 96, "translation": { "en": "Although D4 paid for the rental of the hotel room, the key cards were used by the applicant and D3;", "zh-HK": "雖然房租是由 D4 支付，但房卡就由申請人和 D3 管有和使用；" } }, { "doc_id": 161, "seg_id": 97, "translation": { "en": "D3 claimed that he borrowed the iPhone 5 from the applicant, however, it was the latest model amongst all the applicant’s mobile phones found in the hotel room. Others’ personal and bank information was stored in the phones’ memory. Although D3 claimed that he had borrowed the phone for at least 2 weeks, he had not finished transferring the criminal information into his own Samsung phone, this claim was completely incredible;", "zh-HK": "D3 聲稱借用了申請人的 iPhone 5 電話，可是這部手提電話是申請人當時在酒店房間內擁有的數部電話中最為新款的一部，而手機內存有他人的個人及銀行資料。D3 雖然聲稱已借用了電話最少兩個星期，但仍未能將iPhone 5 內犯罪的資料傳送到自己的 Samsung 手提電話內，這說法難以置信；" } }, { "doc_id": 161, "seg_id": 98, "translation": { "en": "D3 claimed the he had borrowed 2 of the applicant’s computers to conduct his criminal activities, including scanning the stolen documents into the MacBook in order to sort through the stolen personal and bank information, but he saved the data in the USB stick (when the police raided the room, this usb stick was attached to the MacBook). Regarding the Acer computer borrowed from the applicant, D3 used it to download some software that could read smart card readers. However, D3 had 2 computers of his own, Sony and Lenovo, and the latter could be used to manage things the MacBook managed. Furthermore, the applicant still needed her 2 computers for use at times. D3 said that he didn’t want others, including his girlfriend and her family (sic) to find out about his criminal activities, therefore, he did not carry out his crimes in the rented residence he shared with his girlfriend and specifically chose to live in a hotel room. If the explanation was true, D3 had no reason to use the applicant’s computers and phones to commit crimes.", "zh-HK": "D3 聲稱借用了申請人兩部電腦進行他的犯罪活動，包括將偷來的文件內容掃描 (scan) 入 MacBook 從而處理偷來的別人的個人及銀行資料，但他將資料存放在 USB 的手指內(在警方搜查酒店房間時，這隻手指正插着 MacBook)。至於從申請人借用的 Acer 電腦，D3 利用它上網下載一些可閱讀智能卡閱讀器的軟件。可是 D3 自己已擁有兩部電腦 Sony 和 Lenovo，後者更能處理 MacBook 所處理的事項，況且申請人有時仍需要用她的兩部電腦。D3 說他不想其他人包括女朋友和她的家人知道他的犯罪活動，所以不在他和女朋友在佐敦租住的地址犯案，而特別選擇租住酒店房間。若這解釋屬實，D3 更沒有理由使用申請人的電腦及電話犯案；" } }, { "doc_id": 161, "seg_id": 99, "translation": { "en": "The encoder was purchased through the applicant’s Taobao account. This process required the use of personal identification number, and would also leave transaction record in order to allow the applicant to trace what product she had bought. However, D3 explained that he did not ask the applicant to buy it for him through her Taobao account like previously, because he did not want her to know about it. This explanation contained irreconcilable inconsistency; and", "zh-HK": "編碼器是透過申請人的淘寶網戶口購買得來的，過程需要使用個人密碼，亦會留下交易記錄容許申請人可以追查買的是什麼產品。可是 D3 解釋因不想她知道所以沒有一如以往要求申請人在網上代購，這說法存在著不解的矛盾；及" } }, { "doc_id": 161, "seg_id": 100, "translation": { "en": "At one time, D3 claimed it was the applicant who bought the purple-coloured notebook and he borrowed it from the applicant for recording others’ personal and credit card information after they had moved into the hotel room. However, he said at another time, that the purple-coloured notebook was bought by the 2 of them together and lent to him for his use. He gave contradictory versions and the fingerprints of the applicant were found on the notebook.", "zh-HK": "D3 一時聲稱申請人購買紫色簿，當他們入住酒店之後，他才向申請人借用並記載着別人的個人及信用卡資料，但一時又說紫色簿是他們倆人一起購買然後借給他使用，說法前後不一樣。再者，在這本簿上有申請人的指模。" } }, { "doc_id": 161, "seg_id": 101, "translation": { "en": "According to these evidence, Judge Sham could correctly infer that the applicant was in possession of others’ information that was obtained by illegal means and was in a joint enterprise with D3. Their joint purpose was to sort through the stolen letters of others for personal and bank information to activate credit cards belonging to others for their use (charges 1 and 2), and to input data onto the 34 blank cards mentioned in charge 3 by using the encoder to try to duplicate credit cards for use (charge 3).", "zh-HK": "根據這些證供，沈法官是可以正確地推論申請人是管有這些從非法途徑獲得的他人資料，與 D3 共同行事。他們的共同目的就是從偷來的信件中，整理存檔後，利用他人的個人及銀行資料啟動他人的信用卡並拿來使用(控罪一及二)及將第三項控罪提及的 34 張白色卡用編碼器等設備輸入資料後嘗試複製信用卡以便使用(控罪三)。" } }, { "doc_id": 161, "seg_id": 102, "translation": { "en": "As the applicant and D3 were in joint possession of the stolen goods and acted together, she committed “handling stolen goods” in the form of “receiving”.", "zh-HK": "既然申請人和 D3 共同管有贓物，共同行事，她便以「收受方式」干犯了「處理贓物」罪。" } }, { "doc_id": 161, "seg_id": 103, "translation": { "en": "Nonetheless, this court does not agree there was sufficient evidence to support that the applicant committed “handling stolen goods” by way of “assisting”. First of all, according to section 24 of the “Theft Ordinance”, “another person” mentioned in the form of “assisting” must be another person other than the co-accused: R v Tsang chi-ho & others [1997] 3 HKC 36, paragraphs 21-22 & 33; R v Gingell [2000] 1 Cr App R 88, 89. According to paragraphs 58 & 59 of the reasons for verdict, Judge Sham found that “another person” in this case was D3. However, D3 and the applicant were co-accused in the same case, therefore, Judge Sham convicted the applicant of handling stolen goods for the benefit of D3 was wrong.", "zh-HK": "但本庭不同意本案有充分的證據支持申請人以「協助方式」干犯「處理贓物」罪。首先，《盜竊罪條例》第 24 條以「協助方式」罪行所述的「另一人」必須是案件共犯以外的另一人：R v Tsang Chi-ho & others [1997] 3 HKC 36, 第 21-22 及 33 段；R v Gingell [2000] 1 Cr App R 88, 89。根據判案理由書第 58 及 59 段來看，沈法官裁定這另一人是 D3。但 D3 與申請人是本案共同被控的共犯，故此沈法官認為申請人是為了 D3 的利益而行事而將申請人定罪是錯誤的。" } }, { "doc_id": 161, "seg_id": 104, "translation": { "en": "Mr. Chan, counsel representing the respondent, submitted that the two charges of handling stolen goods (i.e., 1st and 2nd charges) involved a total of 1,934 letters and 43 bank cards; upon police arrival, they found those documents and credit cards scattered inside the room. The prosecution case alleged that the applicant and D3 acted in a joint enterprise, and those letters and bank cards were stolen at different times. Depending on how the applicant dealt with any one of the documents or any one of the bank cards, it might involve different ways of handling. Therefore, the prosecution did not know and could not point out in what way the applicant dealt with any one of the letters or bank cards. Judge Sham could not have concluded in what ways the applicant dealt with each and every letter or bank card, and in turn could not have determined whether the form of dealing was one of “receiving” or “assisting”. Therefore, the “better way” mentioned in Nicklin is not applicable to this case.", "zh-HK": "代表答辯人的陳大律師指出本案的兩項處理贓物罪(即第一及第二項控罪)共涉及 1,934 份信件和 43 張銀行卡，而警方到場時發現該些文件及信用卡都是凌散地分布在房間內。控方案情指申請人和 D3 是共同行事，而該些信件或銀行卡是在不同時段被偷去。視乎申請人用怎樣的手法去處理某一份文件或某張銀行卡，當中可涉及不同的處理贓物模式。因此，控方不知道也不能指出申請人是如何處理某份信件或銀行卡。沈法官亦不可能逐一斷定每份信件和每張銀行卡是怎樣由申請人處理，繼而再逐一斷定處理贓物的手法是屬於「收受方式」或「協助方式」。因此，Nicklin 所提及的「比較好的做法」並不適用於本案。" } }, { "doc_id": 161, "seg_id": 105, "translation": { "en": "This court does not agree that the indictment was improper on the ground that the prosecution could not have proved who stole which document or could not have categorized the documents. The real issue of this case was that since the prosecution had set out 2 limbs in the indictment, the prosecution has to therefore proceed with these two limbs in the form of alternative charges.", "zh-HK": "本庭不同意控方不可能證明誰偷取那一份文件或未能把眾多文件分類作為公訴書不妥善的解說。本案真正的議題是既然控方在兩類犯罪方式同時列在公訴書內，控方便需要以交替控罪形式處理這兩類犯罪方式。" } }, { "doc_id": 161, "seg_id": 106, "translation": { "en": "Mr. Chan said that according to D3’s testimony, after he was being arrested and cautioned, he told the police in the hotel room that the letters seized were stolen earlier by him and “Ah B”. The time was in about 2013, and the location(s) were the buildings which the persons concerned resided. Therefore, part of the letters and bank cards seized in the hotel room were stolen by “Ah B”, but the quantity was uncertain. Concerning these letters and bank cards stolen by “Ah B’, the applicant committed “handling stolen goods” in the form of “assisting”. After she had received the stolen goods, she undertook or assisted in the disposal of those goods by sorting through and storing personal & bank information for the benefit of “Ah B”.", "zh-HK": "陳大律師說根據 D3 的證詞，他被拘捕及警誡後曾對警員說在酒店房內檢獲的信件是他和「阿B」於早前偷取的，時間是 2013 年左右，而地點是當事人居住的大廈。因此，在酒店房間內的部分信件和銀行卡是由「阿B」偷取的，但數量就不能確定。對於該些由「阿B」偷取的信件和銀行卡，申請人以「協助方式」干犯「處理贓物」罪。她接收了這些被偷竊物件後為「阿B」的利益從事或協助處理贓物，把個人及銀行資料整理存檔。" } }, { "doc_id": 161, "seg_id": 107, "translation": { "en": "This court disagrees with this argument. In fact, the prosecution did not discuss the point of “Ah B” being “another person”. Judge Sham did not use “Ah B” as “another person” to support the applicant’s commission of “handling stolen goods” in the form of “assisting” either. Judge Sham only dealt with this issue generally as mentioned above. This court found that the verdict based on the form of “assisting” was unsatisfactory. However, it has no effect on the verdict based on the form of “receiving”.", "zh-HK": "本庭不同意這論點。其實，控方在原審時沒有討論「阿B」是另一人的論點。沈法官亦沒有以「阿B」是另一人的論點支持申請人以「協助方式」干犯「處理贓物」罪。沈法官只是籠統地以上文所述的理由處理這議題。本庭認為涉及以「協助方式」犯罪的裁決是不穩妥的。但這無損以「收受方式」犯罪的裁決。" } }, { "doc_id": 161, "seg_id": 108, "translation": { "en": "This court must point out that when defence counsel found that the charge(s) had not expressly set out which form the prosecution was relying on, he/she should have submitted to the court at the outset of the trial and asked the prosecution to make appropriate replies. At the same time, this court opines that stating both limbs in the indictment does not conform with the requirement of legal principle. The appropriate way was to set out expressly that the second limb was an alternative charge. This would cause the court as well as both parties to note at an early stage and deal with the criminal elements in the two forms of crime.", "zh-HK": "本庭必須指出當辯方律師察覺控罪沒有清楚說明控方是依據哪一類犯罪方式行事，便應該在案件開審時向法庭提出及要求控方作出對控罪的適當回應。同時，本庭認為在本案控方只是在公訴書把兩種犯罪的手法同時列出並不符合現時法律原則的要求。適當的做法是將第二類方式的罪行寫明是交替的控罪。這令法庭及雙方及早關注及處理兩類犯罪方式的犯罪元素。" } }, { "doc_id": 161, "seg_id": 109, "translation": { "en": "Ground 2: Insufficient evidence to prove legal possession of or control over stolen goods", "zh-HK": "理據二：沒有足夠證據證明對於贓物有法律上的管有或控制" } }, { "doc_id": 161, "seg_id": 110, "translation": { "en": "Regarding ground 2, Ms. Chong submitted that “possession” required conscious control and custody, in this case, there was no evidence to prove how the applicant obtained the stolen goods from D3 or how she controlled and managed them jointly with D3. The only evidence, i.e., the applicant lived in the same hotel room where the stolen goods were kept was insufficient to convict her: constructive possession or the power to control does not constitute “possession”.", "zh-HK": "就理據二，莊大律師稱，就「管有」所需的有意識地控制及保管，本案並沒有證據證明申請人如何從 D3 接收贓物或與其進行共同控制或管理，而唯一的證據即申請人與 D3 同住於藏有贓物的酒店房間並不足夠裁定其有罪：形式上的管有 (constructive possession) 或有能力管制並不足夠構成「管有」。" } }, { "doc_id": 161, "seg_id": 111, "translation": { "en": "This court disagrees with this argument and had given analysis above.", "zh-HK": "本庭不同意這說法，本庭已經在上文分析過這點。" } }, { "doc_id": 161, "seg_id": 112, "translation": { "en": "Ground 3: Insufficient evidence to prove that the applicant assisted D3 in handling the stolen goods in a joint enterprise", "zh-HK": "理據三：沒有足夠證據證明申請人協助D3處理贓物，共同行事" } }, { "doc_id": 161, "seg_id": 113, "translation": { "en": "Ms. Chong submitted that if the prosecution was accusing the applicant of the crime in the 2nd limb, there was insufficient evidence to prove how the applicant undertook, or assisted in the retention, removal, disposal or realization (of the stolen goods). Handling (such stolen goods) without knowledge or mere non-disclosure of the stolen goods to the police did not constitute assistance.", "zh-HK": "莊大律師陳詞指出，如控方控告申請人的是第二類犯罪方式，本案沒有足夠證據證明申請人如何從事或協助另一人保留、搬遷、處置或變現贓物；而不知情下處理 或純粹未能向警方披露贓物並不構成協助。" } }, { "doc_id": 161, "seg_id": 114, "translation": { "en": "This court has already dealt with this argument above. This court agrees that the prosecution had not adduced enough evidence to support that the applicant had committed the crime in the 2nd form of “assisting”.", "zh-HK": "本庭已經在上文處理了這論點。本庭同意控方在本案是未提出充分證據支持申請人以第二類「協助方式」犯罪。" } }, { "doc_id": 161, "seg_id": 115, "translation": { "en": "Ground 4: One basic element for conviction was missing as the prosecution failed to prove who was the other person", "zh-HK": "理據四：控方未能舉證證明另一人是誰，定罪的一個基本元素欠缺" } }, { "doc_id": 161, "seg_id": 116, "translation": { "en": "This court has dealt with this argument above.", "zh-HK": "本庭已在上文處理這點。" } }, { "doc_id": 161, "seg_id": 117, "translation": { "en": "Ground 5: Judge Sham had wrongfully applied the legal principle of joint enterprise", "zh-HK": "[2000] 1 Cr App R 88,89ingellhers 理據五：沈法官錯誤地引用共同行事的法律原則" } }, { "doc_id": 161, "seg_id": 118, "translation": { "en": "Ms. Chong quoted paragraphs 42, 44 to 45 from the Reasons for Verdict. She submitted that there were 2 issues in the legal concept from which Judge Sham inferred and found that the applicant acted in a joint enterprise with D3 for the same criminal purpose, that each person is responsible for the other’s action. Firstly, as D3 admitted stealing and pleaded guilty to it, he could not have committed “handling stolen goods”. He, therefore, could not have committed the said crime with the applicant in a joint enterprise. Secondly, it seemed that Judge Sham had applied the co-conspirators principle to D3’s testimony and convicted the applicant, when there was insufficient independent evidence to prove the applicant and D3 shared the same criminal intention. She submitted that Judge Sham was wrong in applying that principle.", "zh-HK": "莊大律師引用裁決理由書第　42　段、第　44　段至　45　段。她說沈法官作出申請人和　D3　共同犯罪目的的推論及在共同行事的法律概念中，每個人都須為另一人所做之事負責的裁決存有兩個問題，第一是　D3　既然承認偷竊並認罪，他便不能同時干犯「處理贓物」罪。他亦不能與申請人共同行事而干犯該罪。第二個問題是沈法官似乎引用串謀者原則，以針對　D3　的證供將申請人定罪，卻沒有足夠獨立證據證明申請人與　D3　皆有共同犯罪意圖，她認為沈法官錯誤引用該原則。" } }, { "doc_id": 161, "seg_id": 119, "translation": { "en": "Ms. Chong submitted that Judge Sham inferred the applicant and D3 shared the same criminal intention on the basis that there were images of others’ information in the hotel room as well as the iPhone5. However, she submitted that it was doubtful as to whether the applicant was in possession of the iPhone 5, therefore, there was no independent evidence to prove that the applicant was in possession of others’ information therein as well as in the hotel room, or that she participated in the sorting through (of the information), saving or activating or duplicating credit cards, or infer that the applicant carried out such acts in consensus with D3.", "zh-HK": "莊大律師指出，沈法官是基於該房間及 iPhone 5　內有他人資料的影像，推論申請人與　D3　皆有共同犯罪意圖；然而她指申請人是否管有該　iPhone 5　成疑，故而沒有獨立證據證明申請人管有其內及該房間裏的他人資料，或參與該等資料的整理、存檔、或以之啟動或複製信用卡，或推論申請人與　D3　共同協議作出這些事。" } }, { "doc_id": 161, "seg_id": 120, "translation": { "en": "This court has dealt with the argument on whether the applicant and D3 were in a joint enterprise and has confirmed that Judge Sham’s verdict was correct. This court has also dealt with the principle when a defendant committed “theft” and “handling stolen goods” at the same time.", "zh-HK": "本庭已經在上文處理申請人和 D3 共同行事這議題及確認沈法官的裁決是正確的。本庭亦在上文處理一名被告人同時干犯「盜竊」及「處理贓物」罪的原則。" } }, { "doc_id": 161, "seg_id": 121, "translation": { "en": "The 3rd charge (Possessing equipment for making a false instrument)", "zh-HK": "第三項控罪（管有用作製造虛假文書的設備）" } }, { "doc_id": 161, "seg_id": 122, "translation": { "en": "Regarding charge 3, Ms. Chong’s argument (ground 6) was that there was insufficient evidence to prove the applicant was in legal possession or control of the relevant equipment in this case. Ms. Chong pointed out that although D3 bought the encoder through the applicant’s Taobao account, this encoder was a machine with versatile functions and not contraband. It could be used on key cards to offices, for storage of information etc., and was not limited to being used on bank cards or illegal activities; and its operation also required certain level of computer skills. There was no evidence in this case to prove that the applicant had possessed and operated the said encoder, or had sufficient skills to use it to make false instrument (counterfeit bank cards).", "zh-HK": "就第三項控罪﹐莊大律師的論點(理據六)是本案沒有足夠證據證明申請人對於相關設備有法律上的管有或控制。莊大律師指出，雖然 D3 透過申請人的淘寶網賬戶購入編碼器，但是這種可用以讀寫磁卡的編碼器是一種功能廣泛的機器並非違禁品，可用於辦公室門匙卡、儲存資料等用途，不一定是用於銀行卡或非法用途，操作亦須具備某程度之電腦技術；而本案中沒有證據證明申請人曾管有及操作該編碼器、具備足夠技術利用之製作虛假文書（假銀行卡）。" } }, { "doc_id": 161, "seg_id": 123, "translation": { "en": "This court disagrees with the argument. The police found equipment including 1 encoder, 1 mini optical disc with user manual, 34 blank white cards, 2 card readers and 2 smartcard readers inside the room. It was a batch of equipment capable of making counterfeit credit cards. D3 admitted in court that he tried to use equipment such as the encoder to write the personal information stolen onto the blank cards, to duplicate credit cards for use. Judge Sham has sufficient evidence to support the verdict that the applicant and D3 jointly committed the crime and were in joint possession of the stolen goods and equipment such as the encoder in the room. Under the circumstances of a joint enterprise, each co-accused has to be responsible for actions of another, therefore, whether the applicant had sufficient computer skills to operate the equipment, such as the encoder, was not relevant.", "zh-HK": "本庭不同意這說法。警方在房間內找到的設備包括一部編碼器、一張迷你光碟連編碼器使用說明、34 張空白的白色卡、兩部讀卡器及兩部智能卡器，是一批可以用作製造虛假信用卡的物件，D3 在庭上已承認他曾嘗試利用編碼器等設備把偷竊回來的個人資料寫在空白的卡上、複製信用卡以便使用。沈法官有足夠證據支持裁決申請人和 D3 共同犯事和共同管有房內贓物及編碼器等設備。在共同行事的情況下，每個共犯都要為其他人所做的事情負責，因此申請人是否具備足夠的電腦技術來操作編碼器等設備並不重要。" } }, { "doc_id": 161, "seg_id": 124, "translation": { "en": "The 4th and 5th charges (possession of an identity card relating to another person)", "zh-HK": "第四及第五項控罪（管有他人身分證）" } }, { "doc_id": 161, "seg_id": 125, "translation": { "en": "Regarding charges 4 and 5, Ms. Chong submitted (Ground 7) that there was insufficient evidence to prove that the applicant had legal possession or control of the identity cards relating to other persons. Ms. Chong submitted that the only evidence regarding charges 4 and 5 was that the applicant was the registered occupant of the room, and that the 2 identity cards relating to others were found therein, however, there was no proof that the applicant was in possession of the said identity cards.", "zh-HK": "就第四及第五項控罪﹐莊大律師說(理據七)本案沒有足夠證據證明申請人對於該等他人的身分證有法律上的管有或控制。莊大律師說本案就第四及第五項控罪的證據只有申請人是該房間登記住客，而該兩張他人身分證是於該房間找到，而沒有申請人管有該等身分證的證明。" } }, { "doc_id": 161, "seg_id": 126, "translation": { "en": "The police found an identity card and an entry permit for Hong Kong and Macau residents belonging to a female named LAW on top of the table in front of the TV cabinet inside the room. The iPhone 5 belonging to the applicant which was in her possession had 62 printed copies of photos, 1 of the images was “LAW’s” identity card and UnionPay card. The said identity card was reported lost in July 2013.", "zh-HK": "警方在房間內的電視枱前面枱頭位置找到一張屬於姓羅女子(「羅」)的身分證及回鄉卡。屬於申請人並由她管有的 iPhone 5 電話內載有 62 個照片打印本，其中一個影像就是「羅」的身分證和銀聯卡。該身分證是早前於 2013 年 7 月被遺失的。" } }, { "doc_id": 161, "seg_id": 127, "translation": { "en": "Another identity card was placed inside the red paper bag on top of the bed. It was also from this same red paper bag that the police found the 43 stolen bank cards on that day. The said identity card was reported lost in October 2012.", "zh-HK": "另一身分證是被放置在床上一個紅色紙袋裏。警方當日亦是在這個紅色紙袋內找到涉及第二項控罪的 43 張銀行卡贓物。該身分證是早前於 2012 年 10 月被遺失。" } }, { "doc_id": 161, "seg_id": 128, "translation": { "en": "Furthermore, the said iPhone 5 also contained others’ information, including an image of an insurance letter relating to a female named Wu (transliteration). The police also found the said insurance letter on the window bay of the room.", "zh-HK": "此外，該 iPhone 5 電話亦載有屬於其他人的資料，其中包括一名姓胡女子的保險信件的影像，而警方在房間的窗台上也找到該保險信件。" } }, { "doc_id": 161, "seg_id": 129, "translation": { "en": "This court found that Judge Sham had sufficient evidence to support his verdict on the applicant being in joint possession of the said stolen goods including the 2 identity cards in the room with D3.", "zh-HK": "本庭認為沈法官有足夠證據支持他裁決申請人和 D3，並共同管有房內各種贓物包括這兩張身分證。" } }, { "doc_id": 161, "seg_id": 130, "translation": { "en": "All 5 charges", "zh-HK": "全部五項控罪" } }, { "doc_id": 161, "seg_id": 131, "translation": { "en": "Ms. Chong submitted 2 grounds regarding all charges as follows:", "zh-HK": "就全部控罪，莊大律師提出如下兩項理據：" } }, { "doc_id": 161, "seg_id": 132, "translation": { "en": "Ground 8: Judge Sham did not consider each charge separately", "zh-HK": "理據八：沈法官沒有獨立考慮每一條控罪" } }, { "doc_id": 161, "seg_id": 133, "translation": { "en": "This court does not agree with Ms. Chong that Judge Sham only convicted the applicant on the general principle of joint enterprise, without having considered each charge separately whether there was fundamental independent evidence to infer that the applicant and D3 were in a joint enterprise, and that he had not considered the applicant’s level of participation separately. This court has given a detailed analysis above and will not repeat itself.", "zh-HK": "本庭不同意莊律師聲稱沈法官只是基於共同行事的原則把申請人籠統地定罪，沒有單獨考慮每一條控罪是否有最基本的獨立證據推論申請人和 D3 共同行事，亦沒有獨立考慮申請人就每一條控罪的參與程度。本庭已在上文詳細分析，故不須重複有關理由。" } }, { "doc_id": 161, "seg_id": 134, "translation": { "en": "Ground 9: Judge Sham dealt with D3’s testimony inappropriately and did not give the applicant the benefit of the doubt", "zh-HK": "理據九：沈法官不恰當地處理 D3 的證供，沒有給予申請人疑點利益" } }, { "doc_id": 161, "seg_id": 135, "translation": { "en": "Ms. Chong submitted that the principle of balancing and accepting defence’s evidence was not whether the evidence given by the defence witness was accepted by the court as facts, because the defendant did not have the duty to prove the facts of the case. As long as the defence witness evidence might be true, it is sufficient to amount to a doubt. (Sze Kwan Lung & others v HKSAR (2004) 7 HKCRAR 475). In this case, D3’s evidence relating to the applicant might be true. Judge Sham’s reason for rejecting D3’s evidence was far-fetched.", "zh-HK": "莊大律師指出衡量及接納辯方證供的原則，並不是辯方證人的證供必須為法庭信納為事實，因為被告沒有舉證事實的責任，只要辯方證人的證供有可能屬實，而這已足以構成一個疑點。(Sze Kwan Lung & others v HKSAR (2004) 7 HKCFAR 475) 。本案 D3 關於申請人的證供有可能屬實，沈法官拒絕接納 D3 證供的理由十分牽強。" } }, { "doc_id": 161, "seg_id": 136, "translation": { "en": "This court disagrees with this argument. Judge Sham’s rejection of D3’s testimony was a mere finding on facts. He has already set out detailed analysis in his reasons for verdict and this court finds that the verdict was correct.", "zh-HK": "本庭不同意這說法。沈法官不接納 D3 的證供純粹是一項事實的裁決。他在判案理由書上已詳細分析理由，本庭認為有關裁決是正確的。" } }, { "doc_id": 161, "seg_id": 137, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 161, "seg_id": 138, "translation": { "en": "For the above reasons, this court dismisses the application.", "zh-HK": "基於上述原因，本庭駁回有關申請。" } }, { "doc_id": 161, "seg_id": 139, "translation": { "en": "Ms. Sezen K.Y. Chong, instructed by Chan & Co., Betty, assigned by DLA, for the applicant.", "zh-HK": "申請人:由法律援助署委派陳嘉慧律師行轉聘大律師莊君如代表。" } }, { "doc_id": 161, "seg_id": 140, "translation": { "en": "Mr. David Chan, ADPP of the Department of Justice, for the respondent.", "zh-HK": "答辯人: 由律政司助理刑事檢控專員陳大偉代表。" } }, { "doc_id": 162, "seg_id": 1, "translation": { "en": "Hon Yeung VP (giving the Reasons for Judgment of the Court):", "zh-HK": "上訴法庭副庭長楊振權頒發上訴法庭判案理由書：" } }, { "doc_id": 162, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 162, "seg_id": 3, "translation": { "en": "The applicant, Tsang Chiu Yu, pleaded guilty in the High Court to one count of attempted rape and was sentenced by Deputy High Court Judge P. Li to 8 years’ imprisonment. Represented by Mr. Suen Kam Hee of Counsel, the applicant applied for leave to appeal the sentence. At the end of the hearing, we dismissed the application for leave, for reasons which we now give.", "zh-HK": "申請人（曾昭宇）在高等法院暫委法官李瀚良席前承認一項企圖強姦罪後被判入獄8年。申請人不服判刑，現由孫錦熹大律師代表要求獲准就判刑上訴。經聆訊後，本庭不批准申請人就判刑上訴。以下是本庭的判案理由。" } }, { "doc_id": 162, "seg_id": 4, "translation": { "en": "Facts of the case", "zh-HK": "案情" } }, { "doc_id": 162, "seg_id": 5, "translation": { "en": "Miss X, the victim in the present case, was born on 31 December 1995. At the time of the offence, she had just reached the age of 14 and was residing with her family in a public housing flat in Tin Shui Wai.", "zh-HK": "案中受害人X小姐在1995年12月31日出生，案發時剛滿14歲，和家人在天水圍一公屋住宅居住。" } }, { "doc_id": 162, "seg_id": 6, "translation": { "en": "In December 2009, after Miss X had come to know the applicant on the internet, the applicant assisted her in organizing her birthday party in a private club, although he did not attend the party.", "zh-HK": "2009年12月，X小姐在互聯網認識了申請人後，申請人協助她在一間私人會所舉行她的生日聚會，但申請人並沒有出席聚會。" } }, { "doc_id": 162, "seg_id": 7, "translation": { "en": "On New Year’s Day of 2010, Miss X informed the applicant that she had lost her mobile phone at the birthday party. The applicant offered to give her a new mobile phone as birthday gift.", "zh-HK": "2010年元旦日，X小姐向申請人表示在生日聚會時遺失了流動電話，申請人提出送一部新的流動電話給她作為生日禮物。" } }, { "doc_id": 162, "seg_id": 8, "translation": { "en": "Subsequently, Miss X and the applicant met somewhere right outside the building in which Miss X resided. The applicant said a friend of his was sending over the mobile phone, so Miss X and the applicant had a chat at a nearby park and then at his residence, during which nothing improper happened. Shortly afterwards, the applicant accompanied Miss X back to her home where both her elder sister and younger sister were present.", "zh-HK": "其後X小姐和申請人在她居住的大廈樓下會面。由於申請人表示其朋友正將流動電話送來，X小姐先後和申請人在附近公園及其居所內聊天，期間並無不當事情發生。稍後，申請人陪同X小姐回家。當時X小姐的姐姐和妹妹都在家中。" } }, { "doc_id": 162, "seg_id": 9, "translation": { "en": "When the applicant was about to leave Miss X’s residence, he requested her to accompany him to the lift lobby. While waiting for the lift, the applicant asked to hug Miss X, and she refused. Suddenly, the applicant carried her up in his arms and took her to the rear staircase landing between the 12th and the 13th floors.", "zh-HK": "當申請人要離開X小姐的居所時，他要求X小姐陪伴他到升降機大堂。等候升降機時，申請人要求擁抱X小姐，但她拒絕。申請人突然抱起她及帶她到大廈的12和13樓之間的後樓梯。" } }, { "doc_id": 162, "seg_id": 10, "translation": { "en": "The applicant put Miss X on the floor, telling her that he had a knife and would slit her face if she resisted. He went on to say that he just wanted to hug Miss X, but she firmly refused and kept putting up resistance.", "zh-HK": "申請人將X小姐放在地下並向她表示自己有刀，如她反抗會劃破她的臉。申請人繼續表示只想擁抱X小姐，但她斷言拒絕及不停反抗。" } }, { "doc_id": 162, "seg_id": 11, "translation": { "en": "The applicant began to use violence on Miss X. He grasped her neck and covered her mouth with his hand, and then fondled her breasts, pulled up her upper clothing and kissed her chest forcibly.", "zh-HK": "申請人開始向X小姐動粗，先用手扼着她的頸及按着她的口，後撫摸她的乳房和拉起她的上衣，強吻她的胸部。" } }, { "doc_id": 162, "seg_id": 12, "translation": { "en": "The applicant threatened Miss X and managed to strip her trousers and underpants down to her knees. At the same time the applicant stripped down his own tracksuit pants and underpants.", "zh-HK": "申請人恫嚇X小姐，並成功將她的長褲及內褲褪至膝蓋位。申請人同時褪下自己的運動褲和內褲。" } }, { "doc_id": 162, "seg_id": 13, "translation": { "en": "Miss X struggled free and ran upstairs to 13th floor, but there she was chased up and overpowered by the applicant. He dragged her to the staircase landing between the 13th and the 14th floors, where he kept grasping her neck and covering her nose and mouth with his hands until she promised not to call the police.", "zh-HK": "X小姐掙脫申請人後跑上13樓，但遭申請人趕上及制伏。申請人將X小姐拖行至13至14樓的梯間，扼著她的頸和掩蓋她的口鼻直至X小姐保證不會報警才放手。" } }, { "doc_id": 162, "seg_id": 14, "translation": { "en": "The applicant then ordered Miss X to lift up her upper clothing for him to take photos of her naked body, lest she might report to the police. She gave in. But after the applicant had taken photos of her, he did not let her go. When she put up resistance again, the applicant pushed her to the rear staircase landing at the 14th floor and stripped her trousers down to her knees.", "zh-HK": "申請人隨後命令X小姐拉起衣服讓他拍攝其裸照，以防她報警。X小姐就範，但申請人拍照完後，沒有釋放X小姐。當X小姐再反抗時，申請人推她到14樓的後樓梯，並將她的長褲褪至膝蓋位置。" } }, { "doc_id": 162, "seg_id": 15, "translation": { "en": "When Miss X was lying prone on the floor with her back facing the applicant, he inserted his finger into her private parts and lowered his pants, exposing his erected penis, and attempted to have sexual intercourse with her.", "zh-HK": "當X小姐俯伏在地下，背向申請人時，申請人用手指插入X小姐下體，並脫下褲子，露出其勃起了的陽具，企圖和X小姐性交。" } }, { "doc_id": 162, "seg_id": 16, "translation": { "en": "When Miss X was putting up resistance, the applicant pressed on her and said he just wanted to take a few more photos. As she kept on struggling, the applicant gave up and told her to put on her clothes before leaving. She ran to the 12th floor but was chased up by the applicant who then pulled up her upper clothing again to take photos of her naked chest and followed her until she arrived at the entrance door of her home.", "zh-HK": "X小姐反抗時，申請人按着她，並表示只想多拍幾張照片。由於X小姐繼續掙扎，申請人放棄，並着她先穿回衣服才離去。X小姐跑往12樓，但遭申請人趕上。申請人再度拉起她的上衣來拍攝其胸部的裸照，並尾隨X小姐返抵其家門才止步。" } }, { "doc_id": 162, "seg_id": 17, "translation": { "en": "Back at home, Miss X tearfully told her family members what had happened. In the small hours of 2 January 2010, she went to the police station with her parents to make a report.", "zh-HK": "X小姐返家後，向家人哭訴，並在父母陪同下在2010年1月2日凌晨前往警署報案。" } }, { "doc_id": 162, "seg_id": 18, "translation": { "en": "Miss X suffered no injury to her private parts. However, there were multiple reddish bruises over other parts of her body. Swab tests taken of her breasts also revealed presence of the applicant’s saliva.", "zh-HK": "X小姐的下體並沒有受傷，但身體其他地方有多處紅色瘀傷傷痕，其乳房拭子亦有申請人的唾液。" } }, { "doc_id": 162, "seg_id": 19, "translation": { "en": "After arrest, the applicant said under caution, “Ah sir, I did it. I harassed the girl. I shot some video clips which are (stored) in (my) computer. And today I have deleted all the photos taken at the staircase last night.” At a subsequent video-recorded interview, the applicant admitted having made verbal threats to Miss X in order to force her to give in, and also admitted having climbed on top of her body in an attempt to have sexual intercourse with her, but the attempt failed because she shouted for help.", "zh-HK": "申請人被捕後，在警誡下說：「阿Sir，係我做嘅，條女我搞嘅。我拍咗的短片响部電腦度；而擒晚喺樓梯拍嘅相我今日已經洗哂喇。」其後在錄影會面時，申請人承認曾出言恫嚇X小姐迫她就範，亦承認曾爬上她的身體嘗試和她性交，但因她呼救而未能成事。" } }, { "doc_id": 162, "seg_id": 20, "translation": { "en": "Video clips pertaining to the incident were found in the applicant’s computer by the police. The deleted photos were also successfully restored from his camera.", "zh-HK": "警員在申請人的電腦內發現和事件有關的影片，亦在其相機成功修復了已被刪除的照片。" } }, { "doc_id": 162, "seg_id": 21, "translation": { "en": "The ordeal has caused serious physical and mental trauma to Miss X, exacerbating her depressed mood and adversely affecting her daily functioning. Miss X is currently suffering serious post-traumatic stress disorder. She is constantly under intense fear and feels helpless and powerless. She often blames herself for having trusted the applicant, and has lost her self-confidence and feels shameful. She feels angry about the violent acts and verbal threats of the applicant, which she finds loathsome. The clinical psychologist takes the view that Miss X has presented symptoms of escapism and suppression of her own emotions, with frequent episodes of insomnia and waking from fear, which acutely affect her daily functioning and worsen her low mood. The psychologist considers it necessary for Miss X to undergo psychological treatment.", "zh-HK": "事件導致X小姐身心受到嚴重創傷，令她本來已低落的情緒惡化，影響她的生活機能。X小姐現有嚴重創傷後遺症，經常極度恐懼、感覺無助和無能為力。她經常自責相信申請人，並失去自信和感到羞恥。她對申請人的暴力威脅行為亦感到憤怒和厭惡。心理專家認為X小姐有逃避和壓抑情緒的徵狀，時有失眠和驚醒的情況，嚴重影響她的生活機能及令其低落的情緒惡化。專家認為X小姐要接受心理治療。" } }, { "doc_id": 162, "seg_id": 22, "translation": { "en": "The applicant’s background and grounds of mitigation", "zh-HK": "申請人的背景和求情理由" } }, { "doc_id": 162, "seg_id": 23, "translation": { "en": "At the time of the offence, the applicant was about 31 years of age and single. He is not well-educated, having merely attained Form 3 level, and has been engaged in manual labour work in various fields.", "zh-HK": "案發時申請人約31歲，未婚。申請人教育程度不高，讀書至中三，曾從事不同行業的體力勞動工作。" } }, { "doc_id": 162, "seg_id": 24, "translation": { "en": "The applicant has nine convictions for offences including indecent assault and rape. In February 2007 he was sentenced to 5 years’ imprisonment for having raped a 15-year-old girl whom he came to know on the internet. He was released on 11 November 2009, less than two months before he committed the present offence. The clinical psychologist pointed out that the applicant had displayed behavioural problems since childhood. He was selfish, violent, unsympathetic and inconsiderate. He had been found to have Antisocial Personality Disorder. He was promiscuous and enjoyed having sex with girls in their early teens because they could be easily manipulated. The psychologist also found that the applicant had shown no remorse at all about his previous conduct and had instead shifted the blame to the victims and put up alcoholism as an excuse. The psychologist concluded that, as the risk of the applicant re-offending was extremely high, the applicant must be subjected to long-term imprisonment and psychological treatment.", "zh-HK": "申請人有九次犯罪記錄，包括“非禮”和強姦罪行。申請人在2007年2月因強姦一名在互聯網認識的15歲女童而被判監5年。至2009年11月11日，即干犯本案前不足兩個月，才出獄。心理學家指出申請人自幼行為已出現問題。他為人自私、暴戾、沒有同情心和不顧他人感受，患有反社會人格障礙症。申請人濫交，喜歡和十餘歲女童性交，原因是她們容易受別人操控。心理學家更認為申請人對以往的行為全無悔意，更把責任推到受害女童身上，及借口受酗酒所害。心理學家表示申請人重犯機會極高，必須長期監禁和接受心理治療。" } }, { "doc_id": 162, "seg_id": 25, "translation": { "en": "The applicant said he felt remorse for the present offence and offered his apology to Miss X. He said his family had forgiven him and he promised to work hard towards rehabilitation, and hence he hoped the court would pass a lenient sentence.", "zh-HK": "申請人表示對罪行感到內疚，並向X小姐道歉。他表示已得到家人原諒，並承諾會努力改過，故希望法庭輕判。" } }, { "doc_id": 162, "seg_id": 26, "translation": { "en": "The trial judge’s reasons for sentence", "zh-HK": "原審法官的判刑理由" } }, { "doc_id": 162, "seg_id": 27, "translation": { "en": "The trial judge emphasized that the applicant committed the present offence less than two months after having served the sentence for an offence of rape, which, coupled with the fact that both offences involved the same modus operandi, indicated a lack of repentance on the applicant’s part. The trial judge took the view that the applicant posed a grave risk to society and should be subjected to long-term imprisonment and psychological treatment.", "zh-HK": "原審法官強調申請人因強姦罪服刑完畢後不足兩個月便干犯本案，而干犯本案的手法和干犯該宗強姦案的手法相同，顯示申請人不知悔改。原審法官認為申請人對社會的安全構成極大危險，應長期監禁和接受心理治療。" } }, { "doc_id": 162, "seg_id": 28, "translation": { "en": "The trial judge pointed out the following features of the case which he considered to be aggravating factors: (1) the offence was premeditated in that the applicant made use of the internet to get to know Miss X and sexually assaulted her at their very first meeting; (2) Miss X had just reached the age of 14 at the time of the incident; (3) at the rear staircase the applicant pressurized and gave chase to Miss X a number of times, forcibly took off her clothes, and even inserted his finger into her private parts; (4) the applicant had no intention to use a condom and his attempt to rape Miss X failed only because she put up a struggle; (5) the applicant took photos of Miss X’s naked body in order to threaten her; and (6) as a result of the ordeal, Miss X suffered a depressed mood, physical and mental harm and impairment of daily functioning, and it was necessary for her to receive psychological treatment.", "zh-HK": "原審法官認為本案有下列加重罪責因素，包括（一）申請人有計劃犯案，利用互聯網認識X小姐，並在初次見面便侵犯她；（二）X小姐事發時只剛滿14歲；（三）申請人在後樓梯多次迫逼X小姐，並強行除她的衫褲，更用手指插她的下體；（四）申請人沒有打算用安全套，而只因X小姐掙扎而強姦才事敗；（五）申請人影下X小姐裸照來威脅她；及（六）事件導致X小姐情緒低落、身心受傷害及生活機能受影響，必須接受心理治療。" } }, { "doc_id": 162, "seg_id": 29, "translation": { "en": "The trial judge stressed that the offence in question warranted a deterrent sentence which would demonstrate the intolerance of the society to this kind of offence and also redress the grievances suffered by the victim and her family.", "zh-HK": "原審法官強調申請人的罪行應判的刑期應具阻嚇作用，以儆效尤，而刑罰亦需表明社會大眾不容該類罪行，也要反映受害人和其家人所受的委屈。" } }, { "doc_id": 162, "seg_id": 30, "translation": { "en": "Having considered previous judicial decisions including HKSAR v Chung Chi Wing [2010] 5 HKC 75, SJ v Lau Yun Leung [1999] 3 HKLRD 289 and R v Millerry [2003] 1 WLR 546, the trial judge adopted a basic starting point of 9 years’ imprisonment for the present case, but then enhanced it to 12 years in light of the applicant’s psychological disorder and the high risk of re-offending.", "zh-HK": "原審法官考慮過HKSAR v Chung Chi Wing [2010] 5 HKC 75，SJ v Lau Yun Leung [1999] 3 HKLRD 289，R v Millerry [2003] 1 WLR 546等案後認為適用的基本量刑基準為9年，但考慮到申請人的失常心理狀況及重犯機會高，故將量刑基準提升至12年。" } }, { "doc_id": 162, "seg_id": 31, "translation": { "en": "The trial judge pointed out that although the offence to which the applicant pleaded guilty was only attempted rape, what he had done was tantamount to rape, and that he failed to achieve his purpose of raping Miss X not because he stopped of his own accord, but only because Miss X put up resistance with all her might.", "zh-HK": "原審法官指出雖然申請人承認的只是企圖強姦罪，但其罪行等同強姦，而申請人未能達到強姦目的，完全是因為X小姐奮力反抗而並非是申請人自動停止其罪行。" } }, { "doc_id": 162, "seg_id": 32, "translation": { "en": "In the end, the trial judge reduced the sentence by one-third to 8 years on account of the applicant’s guilty plea which was apparently the sole mitigating factor.", "zh-HK": "最後原審法官只因申請人認罪而將刑期扣減三分一至8年。" } }, { "doc_id": 162, "seg_id": 33, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 162, "seg_id": 34, "translation": { "en": "Mr. Suen submits that, apart from the young age of Miss X and the taking of nude photos of hers by the applicant, the aggravating factors highlighted by the trial judge are present in rape cases in general. Mr. Suen maintains that in attempted rape cases, which do not involve vaginal penetration by the penis, the physical and mental trauma caused to the victim is comparatively light, and the defendant will not transmit any venereal diseases to the victim or make her pregnant. Therefore, the sentence for the offence of attempted rape should, it is submitted, be lower than that for the offence of rape.", "zh-HK": "孫大律師指原審法官列出的六項加重罪責因素，除了X小姐年輕及申請人拍攝其裸照外，其餘因素在一般強姦案都存在。孫大律師力稱在企圖強姦案，被告人的陽具沒有進入受害人的陰道，故對受害人的身心造成的創傷較輕，亦不會傳染性病和令受害人懷孕，故判刑應較強姦罪為輕。" } }, { "doc_id": 162, "seg_id": 35, "translation": { "en": "Relying on the sentences imposed by the courts in a number of rape cases, Mr. Suen submits that the sentence of 8 years’ imprisonment imposed on the applicant is manifestly excessive.", "zh-HK": "孫大律師援引多宗強姦案件的判刑，以支持他的立場，即申請人被判的8年刑期屬明顯過重。" } }, { "doc_id": 162, "seg_id": 36, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 162, "seg_id": 37, "translation": { "en": "The circumstances of this kind of offence and the sentencing considerations vary from case to case. Therefore, the sentences imposed in other cases of the same kind do not necessarily have a decisive effect on sentencing.", "zh-HK": "不同案件有不同案情，法庭判刑時要考慮的因素亦有分別，故其他同類案件的判刑，不一定具舉足輕重的影響。" } }, { "doc_id": 162, "seg_id": 38, "translation": { "en": "We agree that, all other relevant considerations being equal, the sentence for the offence of attempted rape should generally be lower than that for the offence of rape. The reasons pointed out by Mr. Suen are obvious enough.", "zh-HK": "本庭同意，一般而言，企圖強姦罪行的判刑，如其他有關因素相同時，應較強姦罪行的判刑為輕，孫大律師指出的原因亦是顯而易見的。" } }, { "doc_id": 162, "seg_id": 39, "translation": { "en": "However, in considering the appropriate sentence for the offence of attempted rape, it is necessary for the court to consider all factors pertinent to the case. Apart from the degree of culpability of the accused, the court also has to take into account public interest, namely the need to ensure the safety of members of the public and protect them from any further offence committed by the accused.", "zh-HK": "但法庭考慮企圖強姦罪行的適當判刑時，必需顧及案件所有的有關因素。除了被告人罪行應受責備的程度外，法庭更要將社會大眾的利益考慮在內，要確保社會安全，避免他人再因被告人的罪行而受害。" } }, { "doc_id": 162, "seg_id": 40, "translation": { "en": "Compared with other cases of rape or attempted rape, there are indeed features in the present case which make it particularly serious.", "zh-HK": "和其他強姦或企圖強姦案件相比，本案確有其特殊的嚴重性。" } }, { "doc_id": 162, "seg_id": 41, "translation": { "en": "The offence was clearly premeditated. The applicant came to know Miss X on the internet and then sought to contact her by offering her some materialistic enticements, and sexually assaulted her at their very first meeting.", "zh-HK": "申請人明確是有計劃行事，他在互聯網認識X小姐後，利用一些物質誘因接觸她，並在首次和她見面時便侵犯她。" } }, { "doc_id": 162, "seg_id": 42, "translation": { "en": "The applicant’s assaults had apparently been directed at innocent girls of tender age, the reason being that, according to the clinical psychologist, young girls could be easily manipulated.", "zh-HK": "申請人明顯是以年齡甚輕的無知少女為襲擊對象，而心理學家更指出申請人針對女童的原因是因為她們容易受操縱。" } }, { "doc_id": 162, "seg_id": 43, "translation": { "en": "This Court has repeatedly pointed out that it is an extremely serious offence for an adult man to sexually assault, on various pretexts or in various ways, innocent young girls whom he has come to know on the internet. Such an offence, being serious in nature and also increasingly prevalent, calls for severe punishment. The court is under a duty to deter this type of offence and protect innocent young girls.", "zh-HK": "本庭屢次指出，成年男子在互聯網上結識無知少女後，以不同藉口或方法性侵犯她們屬極為嚴重罪行，必需嚴懲，原因是這類罪行不但嚴重，更日趨普遍。法庭有責任阻嚇該類罪行，保護無知少女。" } }, { "doc_id": 162, "seg_id": 44, "translation": { "en": "Miss X, the victim in the present case, was particularly young, having just reached the age of 14 at the time of the offence. The offence had a huge impact on Miss X. As a result of the incident, she suffered serious post-traumatic stress disorder, which adversely affected her daily functioning to the extreme and which necessitated psychological treatment on her.", "zh-HK": "本案的受害人，X小姐更是特別年輕，案發時剛滿14歲。申請人的罪行對X小姐的影響十分嚴重。她因事件而患上的嚴重創傷後遺症，對她的生活機能有極大的負面影響，導致她要接受心理治療。" } }, { "doc_id": 162, "seg_id": 45, "translation": { "en": "We wish to repeat the following observations made by this Court in HKSAR v Kong Yun Chiu [2007] 4 HKC 391:", "zh-HK": "本庭想複述上訴法庭在HKSAR v Kong Yun Chiu [2007] 4 HKC 391案的以下評論：" } }, { "doc_id": 162, "seg_id": 46, "translation": { "en": "“(1)The fact that the victim is a child is always a severely aggravating feature. Children are vulnerable members of society. It is too easy for those who would prey on their naivete and trust to succeed, for children are by nature trusting and the deliberate invasion of a child’s innocence by an act of sexual abuse bears a repulsive character of its own and must be treated accordingly.", "zh-HK": "“(一)受害人是一名兒童必然是極為嚴重的加重罪責因素。兒童是社會上易受危害的份子。利用兒童的幼稚和信任來欺凌他們容易得手，原因是兒童天性輕易信賴別人。故意以性侵犯行為干擾兒童的純真具令人厭惡的特性，故必需嚴正對待。" } }, { "doc_id": 162, "seg_id": 47, "translation": { "en": "(2)The trauma and distress, immediate and long term, is not confined to the child: parents are also affected.", "zh-HK": "(二)有關的精神創傷和悲傷，不論長期或短期，並非單由該名兒童面對，其父母亦受影響。" } }, { "doc_id": 162, "seg_id": 48, "translation": { "en": "(3)Children are much more likely than adults to suffer trauma in silence rather than report, particularly in cases of breaches of trust…”", "zh-HK": "(三)和成年人相比，兒童會較大可能默默地忍受精神創傷，而不去舉報，特別是涉及違反信任的情況…”（非官方翻譯）。" } }, { "doc_id": 162, "seg_id": 49, "translation": { "en": "We agree with the trial judge that it is necessary to impose on the defendant a sentence which demonstrates the intolerance of the society to such offence and also redresses the grievances suffered by Miss X and her family. We cannot ignore the fact that, in the course of committing the offence, the applicant had taken photos of Miss X’s private parts and breasts to be used as threats against her. The incident must have subjected Miss X and her family to tremendous distress and put them under constant pressure that those photos might be publicized (see the observations made by Ma CJHC (as he then was) in paragraph 26(c) and (d) of his judgment in HKSAR v Chow Yuen-fai [2010] 1 HKLRD 354).", "zh-HK": "本庭認同原審法官的立場，即適用於申請人的刑罰必需表明社會大眾不容忍他的罪行，也要平復X小姐和其家人所受的委屈。本庭不能忽視，在犯案過程，申請人拍下X小姐私處及乳房的照片來威脅她。事件必會對X小姐和其家人造成極大的傷痛，令他們長期受照片可能公開的壓力。（見馬道立首席法官（當時官階）在HKSAR v Chow Yuen-fai [2010] 1 HKLRD 354案判案書第26(c)及(d)段的評論。）" } }, { "doc_id": 162, "seg_id": 50, "translation": { "en": "Had the applicant raped Miss X, the offence would have been even more serious. Still, there is support for the trial judge’s comment that what the applicant had done was tantamount to rape and that he failed to achieve his aim of raping Miss X not because he stopped of his own accord, but only because she put up resistance with all her might.", "zh-HK": "假若申請人確有強姦X小姐，他的罪行會更為嚴重，但原審法官指申請人的罪行和強姦差不多，而他未有達到目的強姦X小姐，並非因為他自動停止，而是因為X小姐奮力反抗的說法，亦是有基礎支持的。" } }, { "doc_id": 162, "seg_id": 51, "translation": { "en": "One of the cases cited by Mr. Suen is HKSAR v Chung Chin Wing [2010] 5 HKC 75, in which the defendant lured a 13-year-old girl into his vehicle which he parked in an open space opposite her school, and then raped her inside the vehicle. When she resisted, the defendant used violence on her. He did not wear a condom and ejaculated inside the victim. After the rape, the defendant ordered the victim to leave the vehicle and then drove off. He was arrested 9 years after the offence.", "zh-HK": "孫大律師援引HKSAR v Chung Chi Wing [2010] 5 HKC 75案。該案的被告人在一名13歲女童的學校外誘騙她上了他的汽車後，在車上強姦受害人。當受害人反抗時，被告人更對她動武。被告人強姦受害人時沒有帶安全套，更在女童體內射精，事後被告人命令受害人離開其汽車後，駛走汽車。事發後9年，被告人遭拘捕。" } }, { "doc_id": 162, "seg_id": 52, "translation": { "en": "The defendant pleaded guilty in the Court of First Instance and was sentenced to 10 years’ imprisonment. On appeal, the Court of Appeal held that the appropriate starting point was 11 years and reduced the sentence to 7 years and 4 months on account of the guilty plea.", "zh-HK": "原審時，被告人認罪後被判入獄10年，上訴法庭認為適當的量刑基準是11年，因被告人認罪故將其刑期減至7年4個月。" } }, { "doc_id": 162, "seg_id": 53, "translation": { "en": "The Court of Appeal pointed out three aggravating factors in the case: (1) the planning done by the defendant, who preyed upon pupils leaving the school premises after school and then lured the victim into his vehicle; (2) the tender age of the victim, i.e. 13 years and 5 months; and (3) by not wearing a condom and by ejaculating inside the victim, the defendant was reckless as to the physical consequences of his conduct for the young girl.", "zh-HK": "上訴法庭指出上述案件有三項加重罪責因素，包括（一）罪行是有計劃的，被告人針對放學的學生並將她誘騙上其汽車；（二）受害人年齡極輕，只有13歲5個月；及（三）被告人罔顧其行為對該名女童身體的後果，他沒有帶安全套更在女童體內射精。" } }, { "doc_id": 162, "seg_id": 54, "translation": { "en": "The Court of Appeal also pointed out that, despite a lapse of 9 years between the offence and the arrest, the prosecution had not adduced any report on the impact, if any, of the incident on the victim . Accordingly, there was no evidence of any adverse impact, long-term or short-term, of the ordeal on the victim, and sentencing had to proceed on the assumption that the incident had not made tremendous long-term or short-term effects on the victim.", "zh-HK": "上訴法庭同時指出，雖然事隔9年，但控方沒有呈交受害人影響報告，故沒有證據證明事件對受害人有長期或短期不良後果，而法庭要假設事件並沒有對受害人造成巨大的長期或短期影響來作出判刑。" } }, { "doc_id": 162, "seg_id": 55, "translation": { "en": "The Court of Appeal further said that as some 9 years had lapsed since the commission of the offence, the Court was well-positioned to assess the level of risk posed by the defendant to the society at large. The Court of Appeal emphasized that although the defendant had an extensive conviction record for offences involving dishonesty, he had never committed sexual offences, and therefore the defendant did not pose a continuing risk to society as far as sexual offences were concerned.", "zh-HK": "上訴法庭更指出判刑時和事發已相隔9年，故法庭能掌握被告人對社會的危害程度。上訴法庭強調雖然被告人有多次不誠實的罪行案底，但他從未干犯過任何性罪行，因此被告人在性罪行方面，對社會不構成持續的危害。" } }, { "doc_id": 162, "seg_id": 56, "translation": { "en": "On the contrary, in the present case there is evidence to show that the offence committed by the applicant brought about a huge negative impact on Miss X who suffered serious post-traumatic stress disorder and had to receive psychological treatment.", "zh-HK": "本案情況剛剛相反，有證據證明申請人的罪行對X小姐造成極大的不良後果，令她患上嚴重的創傷後遺症，並要接受心理治療。" } }, { "doc_id": 162, "seg_id": 57, "translation": { "en": "More importantly, the applicant is a recidivist sex offender who poses a grave risk to society. At the age of 16, he committed indecent assault for which he was put under probation. In 2006, after he came to know a 15-year-old girl on the internet, he lured her to meet him on the pretext that he would lend her money. He then took her to the rear staircase of a shopping arcade where he threatened her at knife point and raped her.", "zh-HK": "更為重要的是申請人是一名性罪行積犯，對社會極具危害性的性犯罪份子。申請人16歲便犯了“非禮”罪而被判感化。2006年申請人在互聯網認識一名15歲女童後，以借錢給她誘使受害人和他見面後，將受害人帶往商場的後樓梯並用刀指嚇受害人後強姦她。" } }, { "doc_id": 162, "seg_id": 58, "translation": { "en": "Having served a term of 5 years’ imprisonment for the aforesaid offence and less than two months after his release, the applicant employed the same method of getting to know Miss X on the internet, luring her with materialistic enticements and attempting to rape her at their very first meeting.", "zh-HK": "申請人更是在因上述罪行坐牢5年，獲釋後不足兩個月便以相同手法，即在互聯網認識X小姐後，以物質引誘她及在兩人初次見面便企圖強姦X小姐。" } }, { "doc_id": 162, "seg_id": 59, "translation": { "en": "It is clear that the applicant is a sexual recidivist who shows neither remorse nor intention to rehabilitate himself. He poses a grave risk to society, and particularly to innocent young girls. We agree that it is in the public interest to have the applicant subjected to long-term incarceration and psychological treatment in order to prevent him from re-offending.", "zh-HK": "申請人明確是一名不知悔改的性罪行積犯。他對社會，特別是無知女童構成極大危害。本庭同意為了保障社會的利益，申請人應長期監禁及接受心理治療避免他再次犯案。" } }, { "doc_id": 162, "seg_id": 60, "translation": { "en": "In our view, in considering the appropriate sentence, the interest of the society at large is a factor of paramount importance (see our observations in paragraph 23 of the judgment in HKSAR v Cheung Kwok-yip, Peter [2010] 3 HKC 470).", "zh-HK": "本庭認為考慮案件的判刑時，應以社會利益為首要。（見本庭在HKSAR v Cheung Kwok-yip, Peter [2010] 3 HKC 470案判案書第23段的評論。）" } }, { "doc_id": 162, "seg_id": 61, "translation": { "en": "For the applicant who has pleaded guilty to one count of attempted rape, a sentence of 8 years’ imprisonment (which translates to a starting point of 12 years) may appear to be very severe. However, in our judgment, given the background of the case and of the applicant, the sentence is both necessary and appropriate, and is not manifestly excessive. If in future, upon release from jail for the present offence, the applicant commits the same kind of offence, an even more severe sentence will certainly be imposed on him in order to minimize the level of risk he poses to society.", "zh-HK": "申請人承認一項企圖強姦罪被判8年監禁（等同12年的量刑基準），表面上屬極為嚴苛。但本庭認為以案件的背景及申請人的背景而言，該判刑是有需要及合適的，而非明顯過重。假若將來獲釋後，申請人仍然干犯同類罪行，他必會面對更為嚴苛的懲罸，以盡量減低他對社會的危害程度。" } }, { "doc_id": 162, "seg_id": 62, "translation": { "en": "For the above reasons, we have refused to grant leave to the applicant to appeal his sentence.", "zh-HK": "基於上述理由，本庭不批准申請人就判刑上訴。" } }, { "doc_id": 162, "seg_id": 63, "translation": { "en": "Mr. Ira Lui, Senior Public Prosecutor of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級檢控官雷芷茗代表。" } }, { "doc_id": 162, "seg_id": 64, "translation": { "en": "Mr. Suen Kam Hee, instructed by Messrs. Hobson and Ma assigned by the Legal Aid Department, for the Applicant", "zh-HK": "申請人：由法律援助署委派何柏生馬華潤律師行轉聘大律師孫錦熹代表。" } }, { "doc_id": 163, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案書：" } }, { "doc_id": 163, "seg_id": 2, "translation": { "en": "Application for leave to appeal conviction", "zh-HK": "定罪上訴許可申請" } }, { "doc_id": 163, "seg_id": 3, "translation": { "en": "The 1st and 2nd applicants were respectively charged with eight counts of “conspiracy to defraud”, contrary to the common law and punishable under section 159C(6) of the Crimes Ordinance (Cap. 200 of the Laws of Hong Kong).", "zh-HK": "第一及第二申請人分別被控八項「串謀詐騙」罪，違反普通法，並可根據《刑事罪行條例》(香港法例第200章)第159C(6)條予以懲處。" } }, { "doc_id": 163, "seg_id": 4, "translation": { "en": "The 1st Charge was laid against the 1st and 2nd applicants, the 2nd to 7th Charges against the 1st applicant, and the 8th Charge against the 1st and 2nd applicants and the 3rd defendant in the same case.", "zh-HK": "第一項控罪是針對第一及第二申請人。第二至第七項是針對第一申請人。第八項控罪是針對第一、第二申請人及同案的第三被告人。" } }, { "doc_id": 163, "seg_id": 5, "translation": { "en": "The case was tried before District Judge Joseph Yau. Judge Yau found the 1st and 2nd applicants not guilty on the 1st Charge, but convicted them on the 2nd to 8th Charges that they respectively faced. The 3rd defendant was found not guilty on the 8th Charge. The 1st and 2nd applicants now seek leave to appeal their respective convictions.", "zh-HK": "案件經區域法院法官邱智立審理。邱法官裁定第一、二申請人第一項控罪不成立，但第二至第八項控罪罪名成立。邱法官裁定第三被告人的第八項控罪罪名不成立。第一及第二申請人就定罪提出上訴許可申請。" } }, { "doc_id": 163, "seg_id": 6, "translation": { "en": "Particulars of the charges", "zh-HK": "控罪詳情" } }, { "doc_id": 163, "seg_id": 7, "translation": { "en": "1st Charge", "zh-HK": "控罪一" } }, { "doc_id": 163, "seg_id": 8, "translation": { "en": "The 1st Charge alleged that the 1st and 2nd applicants conspired together with Chan Kam Tong (“PW1”) to fraudulently induce Singapore Exchange Limited (“SGX”) to approve the listing of Daka Designs Limited (“Daka Designs”) on SGX;", "zh-HK": "控罪一指稱第一及第二申請人與陳錦棠(‘控方第一證人’)串謀以欺詐手段誘使「新加坡交易所有限公司」(「新交所」)批准 Daka Designs Limited (‘Daka Designs’) 在「新交所」上巿；" } }, { "doc_id": 163, "seg_id": 9, "translation": { "en": "2nd to 7th Charges", "zh-HK": "控罪二至七" } }, { "doc_id": 163, "seg_id": 10, "translation": { "en": "The 2nd to 7th Charges alleged that the 1st applicant conspired together with PW1 to fraudulently induce and cause six banks to grant loans as detailed below:", "zh-HK": "控罪二至七均指控第一申請人與控方第一證人串謀以欺詐手段誘使和致使分別六間銀行批出貸款：" } }, { "doc_id": 163, "seg_id": 11, "translation": { "en": "1)8 October 2003, KBC Bank N.V., $1,001,756.80 (2nd Charge);", "zh-HK": "1)2003 年 10 月 8 日，「比利時聯合銀行」$1,001,756.80 (控罪二)；" } }, { "doc_id": 163, "seg_id": 12, "translation": { "en": "2)4 February 2004, Citibank, N.A., $460,000 (3rd Charge);", "zh-HK": "2)2004 年 2 月 4 日，「花旗銀行」，$460,000 (控罪三)；" } }, { "doc_id": 163, "seg_id": 13, "translation": { "en": "3)4 February 2004, DBS Bank (Hong Kong) Limited, $650,000 (4th Charge);", "zh-HK": "3)2004 年 2 月 4 日，「星展銀行(香港)有限公司」$650,000 (控罪四)；" } }, { "doc_id": 163, "seg_id": 14, "translation": { "en": "4)4 February 2004, Bank of China (Hong Kong) Limited, $396,000 (5th Charge);", "zh-HK": "4)2004 年 2 月 4 日，「中國銀行(香港)有限公司」$396,000 (控罪五)；" } }, { "doc_id": 163, "seg_id": 15, "translation": { "en": "5)16 March 2005 and 24 May 2005, The Hongkong and Shanghai Banking Corporation Limited, $1,935,000 and $594,000 respectively (6th Charge); and", "zh-HK": "5)2005 年 3 月 16 日及 2005 年 5 月 24 日，「香港滙豐銀行有限公司」，分別為 $1,935,000 及 $594,000 (控罪六)；及" } }, { "doc_id": 163, "seg_id": 16, "translation": { "en": "6)24 March 2005, Hang Seng Bank, $2,481,800 (7th Charge).", "zh-HK": "6)2005 年 3 月 24 日，「恒生銀行」 $2,481,800 (控罪七)。" } }, { "doc_id": 163, "seg_id": 17, "translation": { "en": "8th Charge", "zh-HK": "控罪八" } }, { "doc_id": 163, "seg_id": 18, "translation": { "en": "The 8th Charge alleged that 1st and 2nd applicants and the 3rd defendant conspired together with Ho Ka Chun (“PW9”) to fraudulently inflate the turnover and profit figures of a subsidiary of Daka Designs, thereby misleading existing and potential shareholders of Daka Designs and SGX as to the true financial position of Daka Designs; preventing them from making an informed decision as to whether to invest or further invest in Daka Designs; and inducing SGX to believe that Daka Designs had complied with its obligation to publish a true and accurate annual report and thereby preventing SGX from taking any action against Daka Designs for its failure to so comply.", "zh-HK": "控罪八指控第一、二申請人、第三被告人與何家駿(‘控方第九證人’)串謀以欺詐手段誇大 Daka Designs 的附屬公司的營業額及利潤數字，從而就 Daka Designs 的真正財務狀況誤導 Daka Designs 的現有和潛在股東，及「新交所」；阻止他們就是否投資或進一步投資 Daka Designs 作出知情的決定; 以及誘使「新交所」相信 Daka Designs 已履行其責任發佈真實而準確的年報，並從而阻止「新交所」就 Daka Designs 沒有履行責任而向其採取任何行動。" } }, { "doc_id": 163, "seg_id": 19, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 163, "seg_id": 20, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 163, "seg_id": 21, "translation": { "en": "We have adopted the facts of the prosecution and defence cases as provided by Mr Martin Hui, SADPP and Ms Cecilia Chan, SPP for the respondent and the supplements thereto.", "zh-HK": "本庭採納代表答辯人的高級助理刑事檢控專員許紹鼎及高級檢控官陳詩韻所提供的控辯雙方案情及加以補充。" } }, { "doc_id": 163, "seg_id": 22, "translation": { "en": "The 1st and 2nd applicants were directors and chief decision makers of Daka Development Limited (“DDL”). The 1st applicant was a chartered accountant responsible for the financial affairs of the company. The 2nd applicant was mainly responsible for creating and developing products. The 3rd defendant was an employee within the Daka Group.", "zh-HK": "第一、二申請人為「特嘉發展有限公司」(‘DDL’) 的董事及最高決策人。第一申請人是一名特許的會計師，負責公司的財務。第二申請人主要是負責產品開發。第三被告人是特嘉集團的僱員。" } }, { "doc_id": 163, "seg_id": 23, "translation": { "en": "At the material time, PW1 was a shareholder of T & K Industrial Company Limited (“T&K”), a company engaged in manufacturing and processing plastic components. Chan Mui Chun (“PW2”) was PW1’s wife and was a director of T&K, responsible for the accounting work of T&K.", "zh-HK": "在案發期間控方第一證人是「千基實業有限公司」(「千基」)的股東，從事製造塑膠零件及加工的生意。陳梅珍(‘控方第二證人’)是控方第一證人的太太，她是「千基」的董事，負責「千基」的會計工作。" } }, { "doc_id": 163, "seg_id": 24, "translation": { "en": "PW9 and his wife were shareholders and directors of MHM Marketing Co. Ltd. (“MHM”).", "zh-HK": "控方第九證人及其妻子是「寧康有限公司」(‘MHM’)的股東及董事。" } }, { "doc_id": 163, "seg_id": 25, "translation": { "en": "Since 1996, T&K had supplied plastic components to DDL and performed processing work for DDL. Subsequently, DDL and PW1 jointly set up one Kentat Industrial Limited (“Kentat”) in Hong Kong. Kentat had a factory in Dongguan, which was called “Kentat Plastic, Metal & Electronics Factory” (transliteration) (“Kentat Factory”). This factory provided manufacturing services for DDL only.", "zh-HK": "「千基」自 1996 年開始已成為 DDL 的塑膠零件供應商及替 DDL 進行加工工作。後來 DDL 與控方第一證人合作在香港成立「建達實業有限公司」(「建達」)。「建達」於東莞設有廠房，名為「建達塑膠五金電子廠」(「建達廠房」)。此廠房只為 DDL 提供生產服務。" } }, { "doc_id": 163, "seg_id": 26, "translation": { "en": "In mid-2002, PW1 transferred all his 50% shareholding in Kentat to DDL, following which Kentat was renamed “Daka Industrial Limited” (“DIL”), and in August 2002 Kentat Factory was also renamed “Daka Manufacturing Limited” (“DML”). Subsequently, PW1 also became the corporate representative of DML, and DDL transferred 50% DIL shares back to PW1.", "zh-HK": "2002 年中，控方第一證人將他在「建達」的全部 50% 股份轉讓給 DDL。繼而「建達」亦改名為「特嘉實業有限公司」(‘DIL’)，而「建達廠房」亦於 2002 年 8 月改名為「東莞特嘉塑膠五金電子有限公司」(‘DML’)。控方第一證人其後亦出任 DML 的法人代表，因此 DDL 將 50% 的 DIL 股份轉回到控方第一證人名下。" } }, { "doc_id": 163, "seg_id": 27, "translation": { "en": "For the purpose of tax arrangement, DDL set up one Briga Group (Macao Commercial Offshore) Company Limited (“Briga”’) in Macao on 26 November 2002.", "zh-HK": "為了稅務安排，DDL 於 2002 年 11 月 26 日在澳門成立了「碧嘉集團(澳門離岸商業服務)有限公司」(‘Briga’)。" } }, { "doc_id": 163, "seg_id": 28, "translation": { "en": "In 2003, the 1st and 2nd applicants planned to have their business listed on the Main Board of SGX. For this purpose, Daka Designs was set up in Burmuda on 5 March 2004. The 1st and 2nd applicants were, respectively, the Chief Executive Officer and Executive Chairman of Daka Designs. Both DDL and Briga subsequently became subsidiary companies of Daka Designs.", "zh-HK": "2003 年第一及第二申請人計劃將他們的業務在「新交所」主版上巿。為此 Daka Designs 於 2004 年 3 月 5 日在百慕達成立。第一及第二申請人分別為 Daka Designs 的行政總裁及執行主席。DDL 及 Briga 後來都成為 Daka Designs 的子公司。" } }, { "doc_id": 163, "seg_id": 29, "translation": { "en": "Subsequently Daka Designs applied for listing on SGX. The prospectus was issued on 2 July 2004, and Daka Designs was formally listed on the Main Board of SGX on 16 July.", "zh-HK": "Daka Designs 其後申請在「新交所」上巿。於 2004 年 7 月 2 日印發招股書，並於 7 月 16 日正式在「新交所」主板上巿。" } }, { "doc_id": 163, "seg_id": 30, "translation": { "en": "In July 2005, SGX considered various acts of Daka Designs suspicious and therefore appointed KPMG (Singapore) (“KPMG”) as an independent accountant to carry out auditing and investigation on Daka Designs. In the end, Daka Designs was suspended from trading as from 15 January 2006.", "zh-HK": "2005 年 7 月「新交所」就 Daka Designs 的種種行為認為可疑，於是委任會計師行 KPMG (新加坡) (‘KPMG’) 作為獨立會計師，對 Daka Designs 進行核數及審查。Daka Designs 最終於 2006 年 1 月 15 日正式停牌。" } }, { "doc_id": 163, "seg_id": 31, "translation": { "en": "1st Charge", "zh-HK": "控罪一" } }, { "doc_id": 163, "seg_id": 32, "translation": { "en": "Although Judge Yau has found the two applicants not guilty of the 1st Charge, we shall give a brief account of the facts of this charge so as to facilitate a more thorough understanding of the present case. The prosecution alleged that the 1st and 2nd applicants and PW1 had conspired, by means of a false transfer of shares (namely by transferring 32% of DIL shares from DDL to PW1, thereby reducing DDL’s shareholding in DIL to 18%), to dishonestly cause DIL to be converted from an associate company of DDL to an investee company, so that Daka Designs misrepresented the financial positions of Daka Designs and DDL when applying to SGX for listing, thereby induced SGX to approve the listing application of Daka Designs.", "zh-HK": "雖然邱法官裁定兩名申請人控罪一罪名不成立，但為對本案有更全面的理解，故此在此簡述這控罪的案情。控方指第一及第二申請人與控方第一證人串謀不誠實地以一個虛假的股權轉讓(即將 32% DIL 的股份，由 DDL 轉到控方第一證人名下，令 DDL 所擁有的 DIL 股份減至 18%)，導致 DIL 由原本是 DDL 的「聯營公司」(associate company) 變為「投資公司」(investee company)，使 Daka Designs 在「新交所」申請上市時，就 Daka Designs 及 DDL 的財務狀況作出失實的陳述，誘使「新交所」批准 Daka Designs 上巿。" } }, { "doc_id": 163, "seg_id": 33, "translation": { "en": "PW1 said that although he was the majority shareholder in DIL, he was only a shareholder in name and, in respect of any profit or loss of DIL, would not receive any bonus or assume any liability corresponding to his shareholding. He did not manage or operate DIL. The 1st and 2nd applicants and the 1st applicant’s wife remained the final decision makers of DIL and DML. All documents relating to DIL were signed by PW1 upon the 1st applicant’s request.", "zh-HK": "控方第一證人說雖然他擁有 DIL 的大多數股份，但其實他只是掛名的股東，任何 DIL 的盈利或虧損，他也不會按持股量分紅或承擔責任。他沒有管理及營運 DIL。DIL 及 DML 的最終決策人仍然是第一、第二申請人及第一申請人的妻子。所有有關 DIL 的文件都是他依照第一申請人的要求簽署的。" } }, { "doc_id": 163, "seg_id": 34, "translation": { "en": "2nd to 7th Charges", "zh-HK": "控罪二至七" } }, { "doc_id": 163, "seg_id": 35, "translation": { "en": "The 2nd to 7th Charges were of the same nature and involved a modus operandi similar to cases of “letters of credit fraud”. As DDL urgently needed money to resolve cashflow problems, the 1st applicant requested PW1 to issue false commercial invoices which falsely claimed that T&K was seeking payment from DDL for goods purportedly produced for DDL, and DDL used those false invoices to apply to banks for loans. After loans had been granted by the banks, the monies were deposited into T&K’s bank account. Upon receiving these monies, PW1 immediately deposited them into DIL’s account, and eventually the 1st and 2nd applicants transferred these monies back to DDL’s accounts within a short period of time.", "zh-HK": "控罪二至七是性質相同的控罪，涉及類似「信用狀詐騙」的犯罪手法。由於 DDL 急需金錢周轉，第一申請人要求控方第一證人開出虛假的商業發票，訛稱「千基」向 DDL 收取聲稱為 DDL 製造產品的貨款，讓 DDL 利用這些虛假的商業發票向銀行申請貸款。銀行批出貸款後，便將這些款項存到「千基」的銀行戶口，控方第一證人收到這些款項後，便馬上將他們存入 DIL 的戶口，最終第一或第二申請人亦於短時間內將這些款項轉回 DDL 的戶口。" } }, { "doc_id": 163, "seg_id": 36, "translation": { "en": "8th Charge", "zh-HK": "控罪八" } }, { "doc_id": 163, "seg_id": 37, "translation": { "en": "The prosecution case alleged that MHM, upon the 2nd applicant’s request, had placed a false “special order” with DDL in order to inflate the turnover and profit figures of Briga in the annual report of Daka Designs for the financial year ended 31 March 2004. The facts relied on by the prosecution to prove its case included:", "zh-HK": "控方案情指 MHM 應第二申請人要求與 DDL 訂立虛假的「特別訂單」，從而誇大 Daka Designs 於截至 2004 年 3 月 31 日止財政年度的年報中關於 Briga 的營業額及利潤數字。控方依賴證案的事實包括：" } }, { "doc_id": 163, "seg_id": 38, "translation": { "en": "20.1)MHM issued a “special order” to purchase goods for a sum of approximately $8,900,000 but was not obliged to pay a deposit or take delivery of the goods and was not required to bear the risk of that order.", "zh-HK": "20.1)MHM 發出「特別訂單」購買約 $8,900,000 的貨物，但沒責任支付訂金或提貨，而且不用承擔這訂單的風險。" } }, { "doc_id": 163, "seg_id": 39, "translation": { "en": "20.2)PW9 was given a reward of $100,000 as a result.", "zh-HK": "20.2)控方第九證人更因此獲得 $100,000 獎勵。" } }, { "doc_id": 163, "seg_id": 40, "translation": { "en": "20.3)In order to make the “special order” appear genuine, PW1 and PW2 provided money to PW9 for the purposes of paying the deposit and reducing the amount owed by MHM as appearing in the books of DDL by reason of the “special order”.", "zh-HK": "20.3)為了令這「特別訂單」看來是真實的，控方第一及第二證人更提供金錢給控方第九證人，讓他去支付訂金及減輕 MHM 在 DDL 帳目上因「特別訂單」所欠的貨款。" } }, { "doc_id": 163, "seg_id": 41, "translation": { "en": "20.4)In order to have the profit of the “special order” included in the annual report of Daka Designs for the financial year ended 31 March 2004, before the auditors carried out the stocktaking exercise, DDL/Briga moved the finished and semi-finished materials under the “special order” from DML to the warehouse of T&K (PW1), and a “goods receipt acknowledgement” dated back to 31 March 2004 was prepared and handed to the auditors.", "zh-HK": "20.4)為了令這「特別訂單」的利潤包括在 Daka Designs 截至 2004 年 3 月 31 日的財政年度的年報中，在核數師進行盤點前 DDL/Briga 將「特別訂單」的物料製成品及半製成品由 DML 搬到「千基」(控方第一證人)的貨倉。並要準備一張「收貨確認書」，將日期追溯到 2004 年 3 月 31 日，交給核數師。" } }, { "doc_id": 163, "seg_id": 42, "translation": { "en": "20.5)Subsequently, when MHM purchased goods from Briga with genuine orders, PW9 issued purchase orders and paid for the goods in accordance with the normal procedures. However, Briga had to treat them as delivery of goods under the “special order” in batches, and therefore an alphabet was added at the end of the invoice numbers of the commercial invoices of the “special order” for ease of identification.", "zh-HK": "20.5)其後，MHM 用真正訂單向 Briga 購貨時，控方第九證人依正常程序開出購貨單及繳付貨款。但 Briga 卻要當作是「特別訂單」分段出貨，因此出現「特別訂單」商業發票編號後加上一個英文字母作識別。" } }, { "doc_id": 163, "seg_id": 43, "translation": { "en": "20.6)In the end, in order to resolve the problems with the goods and accounting records, goods which on the face of the accounts had not been received by MHM had to be returned and refund by DDL had to be arranged.", "zh-HK": "20.6)最終，為解決貨物和帳目問題，要從帳面上退回 MHM 沒有收的貨物並安排 DDL 退款。" } }, { "doc_id": 163, "seg_id": 44, "translation": { "en": "20.7)During the KPMG investigation, the applicants requested PW9 to falsely represent that the unit price of $936 for the mosquito trap of model number FT66 was acceptable, and that the money given by the 2nd applicant to PW9 to pay the deposit of the “special order” and reduce the amount payable by MHM for the “special order” was lent to him by the 2nd applicant by way of personal loan.", "zh-HK": "20.7)當被 KPMG 調查時，申請人要求控方第九證人訛稱 FT66 型號驅蚊器的 $936 單價可以接受，及訛稱第二申請人給控方第九證人「特別訂單」的按金和扣減 MHM 在「特別訂單」所欠的貨款的錢是第二申請人給他的私人貸款。" } }, { "doc_id": 163, "seg_id": 45, "translation": { "en": "Defence case", "zh-HK": "辯方案情" } }, { "doc_id": 163, "seg_id": 46, "translation": { "en": "2nd to 7th Charges", "zh-HK": "控罪二至七" } }, { "doc_id": 163, "seg_id": 47, "translation": { "en": "The 1st applicant neither testified nor called any defence witness at trial. His case, as revealed by cross-examining the witnesses, was that the commercial invoices in relation to the 2nd to 7th Charges were all issued pursuant to genuine commercial transactions.", "zh-HK": "第一申請人在審訊時沒有作供，亦沒有傳召任何辯方證人。他經盤問證人帶出的辯方案情，是指稱有關控罪二至七 的商業發票全是建基於真正的商業交易。" } }, { "doc_id": 163, "seg_id": 48, "translation": { "en": "8th Charge", "zh-HK": "控罪八" } }, { "doc_id": 163, "seg_id": 49, "translation": { "en": "The 1st and 2nd applicants did not testify at trial. It can be discerned from their cross-examination of PW9 that their defence to the 8th Charge was that the “special order” was a normal commercial transaction. The 2nd applicant called one defence witness, namely Mr Ngai Tsang Kwong, who was the senior production materials control planner at DDL. Mr Ngai said that at the material time DDL did manufacture goods in relation to the “special order”.", "zh-HK": "第一及第二申請人在審訊時沒有作供。從他們盤問控方第九證人的過程可以得知，辯方就控罪八的答辯理由是這「特別訂單」是一個正常的商業交易。第二申請人傳召了一名辯方證人魏增光先生。魏先生是 DDL 的 senior production materials control planner。他聲稱 DDL 當時的確有生產與「特別訂單」有關的貨物的。" } }, { "doc_id": 163, "seg_id": 50, "translation": { "en": "Judge Yau’s reasons for verdict", "zh-HK": "邱法官的裁決理由" } }, { "doc_id": 163, "seg_id": 51, "translation": { "en": "1st Charge", "zh-HK": "控罪一" } }, { "doc_id": 163, "seg_id": 52, "translation": { "en": "Judge Yau found all prosecution witnesses veracious and reliable. He found that the shares transfer was false. Nevertheless, he held that the 1st Charge was not established because he accepted the evidence given by an expert witness Yam Tak Fai (“PW12”) that, no matter whether DIL was an “associate” or “investee” company, Daka Designs was neither required to disclose nor liable for the losses of DIL and DML, and therefore, from the perspective of Daka Designs, SGX, creditors of Daka Designs and potential investors, whether such false share transfer existed would not have made any difference.", "zh-HK": "邱法官裁定所有的控方證人均為誠實可靠。他裁定該股權轉讓是虛假的。但他裁定控罪一罪名不成立的原因是他接納專家證人任德輝(‘控方第十二證人’)的證供，無論 DIL 是「聯營」或「投資」公司，Daka Designs 都無須披露和負起 DIL 及 DML 的虧損責任，因此對 Daka Designs、「新交所」、Daka Designs 的債權人或潛在投資者來說，有沒有這虛假股份轉讓根本上就沒有分別。" } }, { "doc_id": 163, "seg_id": 53, "translation": { "en": "Judge Yau held that although this false shares transfer gave rise to the misrepresentations of financial positions in the prospectus of Daka Designs, this was (in the Judge’s view) not a result envisaged by the conspiracy agreement between PW1 and the 1st applicant. The Judge found that their initial agreement, which was only intended to relieve Daka Designs of its duty to disclose the losses suffered by DIL and DML, did not constitute any criminal offence. Moreover, that agreement could not be extended to cover the final disclosure by Daka Designs of false financial positions in the prospectus. As far as the 2nd applicant was concerned, Judge Yau found there was not sufficient evidence to prove that he had knowledge of the agreement between the 1st applicant and PW1, and therefore the 2nd applicant was also found not guilty of the 1st Charge.", "zh-HK": "邱法官認為雖然此虛假股份轉讓，是令到 Daka Designs 在招股書中的財務狀況有失實的資料，但他認為這並非控方第一證人及第一申請人串謀協議所期望得到的結果。邱法官認為他們最初的協議，僅意圖解除 Daka Designs 須披露 DIL 及 DML 的虧損的責任，根本就不構成罪行。而該協議亦不能伸延至包括最終令 Daka Designs 於招股書中披露了失實的財務狀況。就第二申請人而言，邱法官裁定證據不足以證明他知道第一申請人與控方第一證人的協議，因此亦裁定第二申請人就控罪一罪名不成立。" } }, { "doc_id": 163, "seg_id": 54, "translation": { "en": "2nd to 7th Charges", "zh-HK": "控罪二至七" } }, { "doc_id": 163, "seg_id": 55, "translation": { "en": "Judge Yau accepted PW1’s evidence. The 1st applicant requested T&K to issue, in the absence of a genuine underlying commercial transaction, false commercial invoices purporting to seek payment for goods from DDL. The 1st applicant then successfully obtained loans from banks by using these commercial invoices. After the banks passed the loan monies to T&K, PW1 arranged for the monies to be returned to the 1st applicant.", "zh-HK": "邱法官接納控方第一證人的證供。第一申請人要求「千基」開出沒有真正商業交易為基礎的虛假商業發票，向 DDL 收取貨款。第一申請人從而利用這些商業發票向銀行獲得貸款，而銀行把這些貸款支付給「千基」後，控方第一證人安排把這些款項交還給第一申請人。" } }, { "doc_id": 163, "seg_id": 56, "translation": { "en": "8th Charge", "zh-HK": "控罪八" } }, { "doc_id": 163, "seg_id": 57, "translation": { "en": "Judge Yau accepted PW9’s evidence and found that the “special order” was a sham transaction set up for the sole purpose of inflating the turnover and profit figures of Daka Designs in the financial report for the year of 2004. He found that, by inflating these turnover and profit figures, the 1st and 2nd applicants intended to mislead SGX into believing that Daka Designs had complied with its obligation to publish a true and accurate annual report, and also intended to mislead existing and potential investors of Daka Designs so as to prevent them from making an informed decision as to whether to invest or further invest in Daka Designs.", "zh-HK": "邱法官接納控方第九證人的證供及裁定「特別訂單」是虛假的交易，目的只是用來誇大 Daka Designs 在 2004 年度財政報告中的銷售額及利潤數字。邱法官裁定第一及第二申請人的意圖是以這些誇大的銷售額和利潤數字來誤導「新交所」，使「新交所」相信 Daka Designs 已經履行責任，發佈真實和準確的年報及誤導 Daka Designs 的現有及存在投資者，阻止他們對 Daka Designs 是否投資或者進一步投資作出知情的決定。" } }, { "doc_id": 163, "seg_id": 58, "translation": { "en": "Appeal by the 1st applicant", "zh-HK": "第一申請人的上訴" } }, { "doc_id": 163, "seg_id": 59, "translation": { "en": "1) First ground of appeal (applicable to all charges)", "zh-HK": "1) 第一項上訴理據(適用於各項控罪)" } }, { "doc_id": 163, "seg_id": 60, "translation": { "en": "1. Stay of proceedings", "zh-HK": "1. 擱置聆訊" } }, { "doc_id": 163, "seg_id": 61, "translation": { "en": "1)At trial, the 1st applicant applied for a permanent stay of the proceedings in the present case on the ground that the ICAC had deliberately infringed his legal professional privilege (“LPP”), and such infringement so seriously affronted the court’s sense of justice and propriety as to justify an order staying the proceedings.", "zh-HK": "1)第一申請人在原審時申請永久擱置本案聆訊，理由是廉政公署(「廉署」)蓄意侵犯他的法律專業保密權利(legal professional privilege)(「保密權」)，嚴重違反法庭對公義和公正行為所持的標準，足以令法庭命令中止這案件。" } }, { "doc_id": 163, "seg_id": 62, "translation": { "en": "27.2)Judge Yau heard the application and dismissed it. As he then had to conduct the trial of the case, the reasons for his decision dismissing the application were not delivered until the conclusion of the trial.", "zh-HK": "27.2)邱法官就該申請進行聆訊及駁回這申請。邱法官在駁回申請後，因為接着要進行案件的審訊，因此延至審訊完畢才頒發判決理由。" } }, { "doc_id": 163, "seg_id": 63, "translation": { "en": "27.3)After the prosecution and the 1st applicant made their final submissions on the application for stay, the 2nd applicant also applied for a stay of the proceedings on the same ground. Judge Yau allowed the 2nd applicant to make the application but also dismissed it in the end.", "zh-HK": "27.3)第二申請人在控方及第一申請人在有關擱置聆訊申請完成最後陳詞後亦以同一理由加入擱置聆訊申請。邱法官批准第二申請人作出有關申請，但同樣駁回申請。" } }, { "doc_id": 163, "seg_id": 64, "translation": { "en": "1.1 Background to the applications", "zh-HK": "1.1 申請背景" } }, { "doc_id": 163, "seg_id": 65, "translation": { "en": "27.4)The background against which the 1st and 2nd applicants alleged that the ICAC had infringed their LPP is as follows.", "zh-HK": "27.4)第一及第二申請人聲稱廉署侵犯他們的保密權的背景如下。" } }, { "doc_id": 163, "seg_id": 66, "translation": { "en": "27.5)In December 2005, KPMG was appointed by SGX to carry out investigation on DDL and Daka Designs, the scope of which was similar to that covered by the criminal prosecution in the present case.", "zh-HK": "27.5)2005 年 12 月，KPMG 由「新交所」委托向 DDL 及 Daka Designs 進行審查，而審查的範圍與本案的刑事檢控部分相若。" } }, { "doc_id": 163, "seg_id": 67, "translation": { "en": "27.6)In the course of investigation, KPMG suggested interviewing five senior officers of DDL, including the 1st and 2nd applicants, the 3rd defendant and a former accounting employee of DDL, Miss Wong Yuet-ying, Judy (“Miss Wong”). In order to prepare for the interview with KPMG, these five senior officers met and sought legal advice from a female solicitor and a trainee solicitor at the office of Messrs. Sidley Austin (misspelt as “Sydney” Austin in the Reasons for Verdict of the trial) in Hong Kong.", "zh-HK": "27.6)KPMG 在審查中提出接見 DDL 的五位高層人員，包括第一、二申請人、第三被告人及 DDL 的一位前會計僱員黃月影 Judy 小姐(‘黃小姐’)。這五位高層人員為了準備 KPMG 的會見，在香港 Sidley Austin (原審時裁定理由書誤串成‘Sydney’ Austin) 律師事務所與一名女律師及一名見習律師會面，聽取法律意見。" } }, { "doc_id": 163, "seg_id": 68, "translation": { "en": "27.7)Miss Wong testified at the trial of the present case as a witness under immunity. In one of the non-prejudicial statements (hereinafter “NPS”) taken from Miss Wong, the ICAC recorded what transpired at the meeting between the five of them and the lawyers.", "zh-HK": "27.7)黃小姐在本案正式審訊時以特赦證人身分作供。廉署在其中一份向黃小姐提取的「不具損害性證人陳述書」(Non- prejudicial Statement) (簡稱 NPS)中紀錄他們五人該次與律師會談的過程及內容。" } }, { "doc_id": 163, "seg_id": 69, "translation": { "en": "27.8)Judge Yau briefly recounted the prosecution evidence involved in the application for stay:", "zh-HK": "27.8)邱法官簡述擱置聆訊申請的控方證供：" } }, { "doc_id": 163, "seg_id": 70, "translation": { "en": "“Prosecution evidence", "zh-HK": "「控方證供" } }, { "doc_id": 163, "seg_id": 71, "translation": { "en": "12.The prosecution has called four witnesses. As mentioned above, PW1, Miss Wong Yuet-ying, Judy gave evidence under immunity from prosecution granted by the Secretary of Justice. On 24 September 2007, she was arrested by the ICAC for the present case and two records of interviews were taken from her under caution on the same day. Between 28 September and 14 December 2008, she was interviewed by the ICAC for ten times, as a result of which the NPS which forms the subject of this voir dire hearing was prepared.", "zh-HK": "12.控方一共傳召了四位證人。控方第一證人黃月影Judy小姐，如上文所述，是在律政司司長給予豁免起訴的情況下作供。她於2007年9月24日，因本案被廉署拘捕及於同日在警誡下提供了兩份會面紀錄。由2008年9月28日至12月14日期間，她被廉署人員接見十次後，完成了這案中案聆訊涉及的NPS。" } }, { "doc_id": 163, "seg_id": 72, "translation": { "en": "13.According to PW1, in the course of the recording, the ICAC asked her questions and then she answered. PW1 agreed that the NPS referred to KPMG’s investigation on DDL and Daka Designs, and to the assistance rendered by Messrs. Sydney Austin to the three defendants in dealing with this investigation and writing a report for submission to KPMG. PW1 pointed out that she took the initiative to talk about the communication between the defendants and the law firm, and the ICAC officers neither asked her about it nor stopped her from talking about it.", "zh-HK": "13.控方第一證人說錄取過程中是由廉署向她發問問題，然後由她作答。控方第一證人同意，NPS內提及KPMG對DDL和Daka Designs的調查，及Sydney Austin律師事務所協助三位被告人處理這調查及撰寫報告呈交KPMG的事項。控方第一證人指出，有關被告人與律師事務所溝通的事，是她自己主動說出來的，廉署人員並沒有向她發問，但也沒有制止她。" } }, { "doc_id": 163, "seg_id": 73, "translation": { "en": "14.The NPS mentioned that KPMG would like to interview certain people and some staff members of DDL and Daka Designs, who therefore sought legal advice before the interview. This legal consultation took place in March 2006, at which these people were received by a female solicitor and a female trainee solicitor called Rosa. The NPS recorded the course of this meeting and the gist of what the lawyers had said and the legal advice given. PW1 said in the court that she had talked about that on her own initiative but the ICAC officers had not stopped her. Upon being asked by the ICAC officers, she disclosed who had attended this legal conference.", "zh-HK": "14.NPS內提及KPMG要接見某些人及DDL和Daka Designs的某些員工，及他們因此在接見前尋求法律意見。這法律諮詢於2006年3月份進行，由一位女律師及一位名叫Rosa的女見習律師接見這些人。NPS內紀錄了這會面的過程及律師的說話和給予的法律意見的撮要。控方第一證人在庭上說，這是她自己說出來的，但廉署人員沒有制止她。在廉署人員的詢問下，她說出了有哪些人出席這個法律會面。" } }, { "doc_id": 163, "seg_id": 74, "translation": { "en": "15.PW1 said that the ICAC first showed her a draft NPS for her perusal and amendment, and subsequently on 14 December 2008 she signed the formal NPS which had been amended. PW1 pointed out that during all these interviews, the ICAC officers had not explained to her about LPP [i.e. legal professional privilege,], and she had not signed any document waiving this privilege.", "zh-HK": "15.控方第一證人指廉政公署先把NPS的草稿給她閱讀及修改，之後她於2008年12月14日才簽署修改後的正式NPS。控方第一證人指出，在這多次的會面過程中，廉署人員並沒有向她解釋過LPP[即legal professional privilege「保密權」]，而她亦沒有簽署任何文件放棄這特權。" } }, { "doc_id": 163, "seg_id": 75, "translation": { "en": "16.PW2, ICAC Investigator Mr Sze Chiu-kwan, and PW3, Investigator Miss Ho Tsui-shan were the ICAC officers responsible for taking the NPS from PW1. PW3 was an assistant investigator at that time. PW2 was responsible for asking questions and taking notes, and PW3 showing relevant documents to PW1 for her as reference. PW3 was present at all the interviews; PW2 was absent from two of them and on those occasions PW3 interviewed PW1 by herself.", "zh-HK": "16.控方第二證人，廉署調查主任施超群先生及控方第三證人調查主任何翠珊小姐是負責替控方第一證人錄取NPS的廉署人員。當時控方第三證人仍是一名助理調查主任。控方第二證人負責發問及寫下筆記，控方第三證人則負責將有關文件給控方第一證人參閱。控方第三證人出席了每一次會面，而控方第二證人有兩次缺席，由控方第三證人單獨會見控方第一證人。" } }, { "doc_id": 163, "seg_id": 76, "translation": { "en": "17.PW2 said that when taking the NPS, PW1 volunteered the relevant information about Messrs. Sydney Austin representing DDL and Daka Designs in answering KPMG’s questions. At that time the issue of LPP did not come to his mind because his training in this aspect focused on monitoring and surveillance.", "zh-HK": "17.控方第二證人指出錄取NPS時，是控方第一證人自己說出Sydney Austin律師事務所代表DDL及Daka Designs去回答KPMG問題的有關事項。他當時並沒有想過有關LPP的問題，因為他在這方面的訓練主要集中於監控及監聽的情況。" } }, { "doc_id": 163, "seg_id": 77, "translation": { "en": "18.PW2 noticed that some of what PW1 had said in the NPS differed from what she had said in the statement(s) given to KPMG in 2006 and the cautioned statements given to the ICAC in 2007. When PW2 sought clarification from PW1, PW1 said on her own initiative that she and others had met and obtained legal advice from a female lawyer and a female trainee solicitor at Messrs. Sydney Austin. PW2 admitted he had not mentioned in his witness statement that it was under such circumstances that PW2 [should be PW1] had talked about this legal conference.", "zh-HK": "18.控方第二證人發覺控方第一證人在NPS中的一些說法與她於06年給予KPMG的口供和07年給予廉署的警誡供詞內所說的有所不同。當控方第二證人要求控方第一證人澄清時，控方第一證人主動說出了她與其他人一起到Sydney Austin律師事務所見一名女律師和一名女見習律師，並獲取法律意見的情況。控方第二證人承認他在證人陳述書裡，沒有提及控方第二證人[應該是第一證人]是在這情況下說出這法律會面的。" } }, { "doc_id": 163, "seg_id": 78, "translation": { "en": "19.PW3 said that it was after PW1 made mention of this legal conference that PW2 asked her when she went to the law firm. PW2 wrote down what PW1 said and the content of the legal advice in his notebook and later wrote them down in the NPS.", "zh-HK": "19.控方第三證人說是控方第一證人說出這法律會面後，控方第二證人才問控方第一證人是甚麼時候上律師事務所的。控方第二證人把控方第一證人的說話及法律意見的內容寫在他的筆記內及後來寫了在NPS上。" } }, { "doc_id": 163, "seg_id": 79, "translation": { "en": "20.PW4, Miss Chu Mei-po, ICAC Senior Investigator, has been the officer-in-charge of the present case since November 2006. In the course of preparing the NPS, he [sic] did not ask PW2 and PW3 about the progress and content of the NPS. After completing the NPS, PW2 pointed out to PW4 that PW1 had talked in the NPS about meeting lawyers. PW2 did so because he noticed some problem might arise. In the end, neither she [sic] nor PW4 found anything wrong.", "zh-HK": "20.控方第四證人廉署高級調查主任朱美寶小姐，自2006 年 11 月份開始為本案的案件主管。在錄取NPS過程中，他沒有向控方第二證人及第三證人查詢NPS的進展及內容。控方第二證人完成NPS後曾向控方第四證人提出控方第一證人在NPS中說到見律師的事。控方第二證人之將這事說出來，因為他發覺到這可能會出現問題。最終她與控方第四證人都覺得沒有不妥。" } }, { "doc_id": 163, "seg_id": 80, "translation": { "en": "21.PW2 said he could no longer recall the exact wording he used when he told PW4 about the meeting with the lawyers. On this point, PW4 testified that PW2 had told her that the NPS involved LPP but PW1 had already waived this right.", "zh-HK": "21.控方第二證人說他已忘記當時以甚麼字眼對控方第四證人說出這有關見律師的事。就這一點，控方第四證人作供時指出控方第二證人告訴她NPS涉及LPP，但控方第一證人已放棄了這權利。" } }, { "doc_id": 163, "seg_id": 81, "translation": { "en": "22.PW2 testified that he, PW3 and PW4 had all read PW1’s NPS. He believed that another ICAC officer Kitty Lau had also read this NPS. After receiving the NPS, PW4 made a photocopy of it as a working copy and locked away the original. She admitted that she had discussed with her superior, ICAC Chief Investigator Kitty Lau, about the content of the NPS and the LPP which might be involved, and had told Kitty Lau that PW1 had waived such right. They did not discuss the LPP in respect of the other people who had attended this legal conference.”", "zh-HK": "22.控方第二證人作供說他、控方第三證人及控方第四證人都看過控方第一證人的NPS。他相信另一位廉署人員Kitty Lau也看過這份NPS。控方第四證人收到NPS後，影印了一份作為工作本及將正本鎖起保存。她承認她曾與她的上司，廉政公署總調查主任Kitty Lau討論過NPS的內容和可能涉及的LPP，及告訴Kitty Lau控方第一證人已放棄了這權利。他們沒有討論到其他出席這法律會面的人的LPP。」" } }, { "doc_id": 163, "seg_id": 82, "translation": { "en": "1.2 Judge Yau’s decision", "zh-HK": "1.2 邱法官的裁決" } }, { "doc_id": 163, "seg_id": 83, "translation": { "en": "27.9)Judge Yau made the following decisions on the application for stay:", "zh-HK": "27.9)邱法官就擱置申請作出以下的裁決：" } }, { "doc_id": 163, "seg_id": 84, "translation": { "en": "27.9)(1)The prosecution witnesses were all veracious and reliable and their evidence was accepted. Judge Yau found that it was while Miss Wong was clarifying the differences in her various statements that she, on her own initiative, talked about this legal conference and the legal advice given by the lawyers, and PW1 [should be PW2] had not expected her to do so. PW2 did not deliberately probe for details of this legal conference and the legal advice provided by the lawyers.", "zh-HK": "27.9)(1)控方證人都是誠實和可靠的證人及接納他們的證供。邱法官裁定黃小姐是在澄清她在不同供詞裏的分歧時主動及在控方第一證人[應該是第二證人]沒有預期之下說出這次法律會議及律師所給予的法律意見。控方第二證人並非刻意探查這個法律會議及律師所提供法律意見的內容。" } }, { "doc_id": 163, "seg_id": 85, "translation": { "en": "27.9)(2)PW2 wrote down the relevant legal advice in his notebook and recorded it in the NPS because at that time it did not occur to him that such legal advice was protected by LPP.", "zh-HK": "27.9)(2)控方第二證人將有關的法律意見寫在他的筆記及記錄在 NPS 內，原因是他當時意會不到這些法律意見為保密權保護。" } }, { "doc_id": 163, "seg_id": 86, "translation": { "en": "27.9)(3)It was absurd for PW2 to think that Miss Wong had waived her LPP because Miss Wong, as an ordinary civilian witness, would not possibly have understood the meaning, existence and significance of the privilege and, therefore, could not possibly have validly waived her privilege. Furthermore, apart from Miss Wong, other defendants also attended the conference and were also protected by LPP. Miss Wong was not in a position to waive their LPP on their behalf.", "zh-HK": "27.9)(3)控方第二證人認為黃小姐放棄了她的保密權是謬誤的，原因是黃小姐作為一個普通市民證人沒有可能會明白權利的意義和存在及其重要性，故此她是沒有可能有效地放棄她的權利。再者，除了黃小姐外，其他被告人也出席了這個會議，因此他們都享有保密權的保護。黃小姐不可以代表其他被告人放棄他們的保密權。" } }, { "doc_id": 163, "seg_id": 87, "translation": { "en": "27.9)(4)Other ICAC officers neither realised that the LPP of Miss Wong and other defendants had been infringed, nor considered seeking legal advice in this regard. This reflected their ignorance of the relevant privilege, but it could not be an excuse for infringing the privilege.", "zh-HK": "27.9)(4)其他廉署人員沒有洞悉黃小姐及其他被告人的保密權已被侵犯，亦沒有考慮到要尋求這一方面的法律意見，這是他們對有關權利的無知，但這不可以構成侵犯該權利的借口。" } }, { "doc_id": 163, "seg_id": 88, "translation": { "en": "27.9)(5)The act of the ICAC officers was a deliberate infringement of the defendants’ privilege.", "zh-HK": "27.9)(5)廉署人員的行為是蓄意地侵犯各被告人的特權。" } }, { "doc_id": 163, "seg_id": 89, "translation": { "en": "27.9)(6)The way in which the ICAC officers dealt with the defendants’ rights could be described as extremely unsatisfactory or even deplorable. Nevertheless, the evidence very clearly showed that the ICAC had not made use of the privileged legal advice obtained for any improper purpose. That the ICAC obtained the legal advice was not the result of any plan or premeditation on their part.", "zh-HK": "27.9)(6)廉署人員就各被告人的權利處理手法可說是極之不理想及甚至是差劣，但案中的證據很清楚地顯示出廉署並沒有利用所獲得受權利保護的法律意見，作出任何不正當的用途，廉署並非有計劃地或深思熟慮地去獲取這法律意見。" } }, { "doc_id": 163, "seg_id": 90, "translation": { "en": "27.9)(7)Except that the relevant legal advice was part of the NPS and that it was on the basis of the NPS that the ICAC considered whether to grant Miss Wong the capacity as a witness, there was no evidence that the ICAC had in any way made use of such privileged legal advice. PW2 said that the privileged information had no evidential value whatsoever, and therefore the information was neither here nor there when the ICAC considered whether Miss Wong would be used as a prosecution witness.", "zh-HK": "27.9)(7)除了有關的法律意見是 NPS 內容一部分，及廉署以這 NPS 來衡量是否給予黃小姐證人身分外，案中並沒有任何證據顯示廉署曾在任何一方面利用這些受權利保護的法律意見。控方第二證人說這些受保護的資料根本就沒有證據參考價值，故此這些資料在廉署考慮是否利用黃小姐為控方證人時根本起不了作用。" } }, { "doc_id": 163, "seg_id": 91, "translation": { "en": "27.9)(8)The ICAC had all along been bona fide. They had never planned or deliberately set out to probe for such privileged information from Miss Wong, nor had they ever intended to make use of information obtained in infringement of the defendants’ LPP so as to gain any advantage or cause the defendants to be treated in an unfavourable and unfair way. In fact, the ICAC had in fact not gained any advantage therefrom and the defendants had not as a result been treated in an unfavourable and unfair way.", "zh-HK": "27.9)(8)廉署一直都是本著真誠的動機。他們從來沒有計劃或刻意地向黃小姐探取這些受保密權保護的資料，並且從沒有意圖去利用從侵犯各被告人的保密權中所獲得的資料去獲取任何的利益或令到各被告人蒙受不利和不公平的對待。廉署亦確實完全沒有從中得益，而各被告人亦確實完全沒有因此而蒙受不利和不公平的對待。" } }, { "doc_id": 163, "seg_id": 92, "translation": { "en": "27.9)(9)The defendants were charged with very serious commercial offences with an international dimension, and public interest undoubtedly required a fair and open trial of the case. Although the ICAC had infringed the defendants’ rights, it was not so serious as to affront the court’s sense of justice and propriety and hence to call for an order staying the hearing permanently.", "zh-HK": "27.9)(9)各被告人面對很嚴重及涉及國際層面的商業罪行。公眾的利益毫無疑問是務求本案能夠在公平及公開的原則下進行審訊。雖然廉署確實地侵犯了各被告人的權利，但其嚴重程度不至於違反法庭對公義和正當行為所持的標準，而須由法庭勒令將聆訊永久中止。" } }, { "doc_id": 163, "seg_id": 93, "translation": { "en": "1.3 1st applicant’s arguments", "zh-HK": "1.3 第一申請人的論點" } }, { "doc_id": 163, "seg_id": 94, "translation": { "en": "27.10)Mr Joseph Tse SC leading Ms Doris Ho, Counsel for the 1st applicant, assert that Judge Yau’s refusal to stay the hearing involved erroneous findings of fact and misapplication of legal principles. In respect of the errors in findings of fact, the 1st applicant contends that his LPP had repeatedly been infringed for a number of reasons:", "zh-HK": "27.10)代表第一申請人的謝華淵資深大律師及何政慧大律師力陳邱法官拒絕擱置聆訊的決定涉及事實裁決的錯誤及錯誤引用法律原則。關於事實裁決的錯誤，第一申請人認為他的保密權屢次遭受侵犯是基於多個理由：" } }, { "doc_id": 163, "seg_id": 95, "translation": { "en": "(1)poor legal knowledge of the ICAC officers;", "zh-HK": "(1)廉政公署人員對法律認知的貧乏；" } }, { "doc_id": 163, "seg_id": 96, "translation": { "en": "(2)their reckless actions that followed;", "zh-HK": "(2)繼而他們的魯莽行事；" } }, { "doc_id": 163, "seg_id": 97, "translation": { "en": "(3)problems with their internal administration;", "zh-HK": "(3)他們的內部行政問題；" } }, { "doc_id": 163, "seg_id": 98, "translation": { "en": "(4)their subsequent deliberate indifference to the problems that existed;", "zh-HK": "(4)稍後他們所持對問題存在的刻意漠視態度；" } }, { "doc_id": 163, "seg_id": 99, "translation": { "en": "(5)their failure to seek legal advice;", "zh-HK": "(5)他們沒有尋求法律意見；" } }, { "doc_id": 163, "seg_id": 100, "translation": { "en": "(6)their failure in taking any precaution whatsoever to prevent or reduce any violation of the applicant’s LPP; and", "zh-HK": "(6)他們完全沒有採取任何措施防止或減少他的保密權被侵犯；及" } }, { "doc_id": 163, "seg_id": 101, "translation": { "en": "(7)they even intended to use the information to benefit the prosecution and prejudice the applicant, and eventually succeeded in doing so.", "zh-HK": "(7)他們還意圖運用資料令控方從中得益和使到他蒙受不利，而且他們這個意圖最後得逞。" } }, { "doc_id": 163, "seg_id": 102, "translation": { "en": "27.11)The 1st applicant submits that the ICAC had deliberately and purposefully recorded the privileged contents disclosed by Miss Wong with the intention of using such information to benefit the prosecution by securing the agreement of the Department of Justice to accept Miss Wong as a prosecution witness. That being the case, the 1st applicant submits that it is difficult to understand why Judge Yau proceeded to hold that the ICAC’s approach in handling the NPS and the infringement of privilege were bona fide. Bona fide motive here did not refer to the ICAC’s purpose in infringing the rights, namely the purpose of investigation and obtaining evidence in combating crimes, because in all the relevant decided cases it was for the same purpose that law enforcement agencies had infringed the rights. Whether the act in question was bona fide is (it is submitted) to be answered by reference to that state of mind of the law enforcement agency in infringing the privilege. The 1st applicant submits that the ICAC had been mala fide.", "zh-HK": "27.11)第一申請人認為廉署是蓄意、有目的地紀錄黃小姐所披露的受保密的內容，其意圖是想利用這些資料令控方得益，使律政司同意接納黃小姐成為控方證人。第一申請人認為在這情況下，邱法官依然裁斷廉署處理 NPS 的手法和侵權行為動機是真誠的，實是難以理解。真誠的動機不是指廉署侵權的目的是為了查案和搜查證據打擊罪案，因為在所有相關案例裡的執法機構都是為此目的而進行了侵權的活動。有關的行動是否真誠或不真誠是指執法機構對於特權進行侵犯時的心態。第一申請人認為廉署是不真誠的。" } }, { "doc_id": 163, "seg_id": 103, "translation": { "en": "2. Legal principles", "zh-HK": "2. 法律原則" } }, { "doc_id": 163, "seg_id": 104, "translation": { "en": "2.1 Legal professional privilege", "zh-HK": "2.1 法律專業保密權" } }, { "doc_id": 163, "seg_id": 105, "translation": { "en": "27.12)Article 35 of the Basic Law provides that “Hong Kong residents shall have the right to confidential legal advice”. This right is the LPP under the common law. It protects the confidentiality of bona fide communications between a lawyer and his client concerning legal advice or in relation to ongoing or contemplated litigation. The privilege entails the right to resist the compulsory disclosure of those communications and can only be waived by the person who enjoys the privilege. This right is described as a fundamental human right and the cornerstone of the administration of justice by the courts. The privilege is an “absolute right” in the sense that it is not liable to be violated by reason of the public interest in apprehending and prosecuting criminals, no matter how compelling such interest may be. See the judgment of the Court of Appeal in Citic Pacific Ltd v. Secretary for Justice [2012] 2 HKLRD 701.", "zh-HK": "27.12)《基本法》第 35 條說「香港居民有權得到秘密法律諮詢」，這個權利就是「普通法」所指的「保密權」。這個權利保障律師與客戶之間的真誠保密的通訊。這通訊包括法律意見或關乎已存在或已預見的訴訟。這是防止有關通訊被強行披露的權利，它只可以由當事人免除。這權利被形容為基本的人權及法庭執行公義的基石。它是一個「絕對的權利」，即不論公眾利益要求將罪犯繩之以法是何等的強烈，這也不是可以侵犯這權利的理由，見上訴法庭在 Citic Pacific Ltd v. Secretary for Justice [2012] 2 HKLRD 701 的裁決。" } }, { "doc_id": 163, "seg_id": 106, "translation": { "en": "2.2 Stay of criminal proceedings", "zh-HK": "2.2 擱置刑事訴訟程序" } }, { "doc_id": 163, "seg_id": 107, "translation": { "en": "Hong Kong case law", "zh-HK": "香港案例" } }, { "doc_id": 163, "seg_id": 108, "translation": { "en": "27.13)In HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133 at 148-151, the Court of Final Appeal explained the principles for staying criminal proceedings. The Court pointed out that a stay of criminal proceedings would only be justified in highly exceptional circumstances. A stay might be granted in the following circumstances:", "zh-HK": "27.13)終審法院在 HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133，第 148 至 151 頁闡述擱置刑事訴訟程序的原則，法庭只有在非常例外的情況下才有充份理由支持擱置刑事訴訟程序。法庭在以下情況可批予擱置：" } }, { "doc_id": 163, "seg_id": 109, "translation": { "en": "(1)Notwithstanding the range of remedial measures available, a fair trial for the accused was impossible and it would be an abuse of process to proceed with the prosecution.", "zh-HK": "(1)縱使有不同的補救性措施，卻沒有可能讓疑犯得到公平審訊及堅持檢控會導致濫用程序。" } }, { "doc_id": 163, "seg_id": 110, "translation": { "en": "(2)In very rare cases, although the fairness of the trial was not in question, a stay might be granted because the circumstances involved an abuse of process which so offended the court’s sense of justice and propriety that the entire prosecution was tainted as an abuse of process. In such instances, the court was not exercising its jurisdiction to stay as a means of disciplining the public officials involved.", "zh-HK": "(2)在非常罕有的情況下，即使審訊是否公平並不是爭議之處，但因為情況涉及濫用程序並令到法院的司法公正感及適當性受到侵犯，以使到整個檢控行動被污染得成為濫用程序，那擱置或會批予。在該種情況下，法院並不是行使司法管轄權以擱置作為對有關的公職人員的懲戒的方法。" } }, { "doc_id": 163, "seg_id": 111, "translation": { "en": "27.14)The Court of Final Appeal reiterated the relevant principles in HKSAR v. Lee Ming Tee and Securities and Futures Commission (2003) HKCFAR 336.", "zh-HK": "27.14)終審法院在 HKSAR v. Lee Ming Tee and Securities and Futures Commission (2003) HKCFAR 336 重申有關原則。" } }, { "doc_id": 163, "seg_id": 112, "translation": { "en": "“182.In the light of the conclusions already reached, there is no basis for the grant of a permanent stay. It was not a case in which the respondent could not get a fair trial. Therefore if the case was to attract a stay, it had to come within the principle stated by Lord Steyn in R v. Latif [1996] 1 WLR 104 at 112G-H:", "zh-HK": "「182.按所得的結論看來，案件並無基礎可批准永久擱置法律程序。在本案中，答辯人並非無法獲得公平審訊。因此，本案須符合Lord Steyn 在R v Latif [1996] 1 WLR 104 第 112 頁 G 至 H 所指的下述原則，方可擱置法律程序：" } }, { "doc_id": 163, "seg_id": 113, "translation": { "en": "‘In this case the issue is whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the criminal justice system. The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: Reg v. Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42.’", "zh-HK": "本案的爭議點是，儘管審訊可公平進行，法官是否仍應基於更廣闊的考慮因素顧及刑事司法制度的誠信而擱置刑事法律程序。這方面的法律早已定案。法官權衡政策與公義這兩項互相抗衡的考慮因素，可行使酌情權決定司法程序是否遭濫用，從而構成公然冒犯公眾良知，以致刑事法律程序必須擱置: R v Horseferry Road Magistrates’ Court，ex parte Bennett [1994] 1 AC42。" } }, { "doc_id": 163, "seg_id": 114, "translation": { "en": "It is generally recognised that only in exceptional circumstances will a stay be granted when a fair trial is possible. An indication of what this means is conveyed by L’Heureux-Dubé J’s observations in R v. O’Connor at 277b-c:", "zh-HK": "若審訊可以公平進行，則法庭只會在例外的情況下才會批准擱置法律程序，這已廣為確認。L’ Heureux-Dubé J在R v O’Connor (1996) 130 DLR (4th) 235一案判詞第 277 頁 B 至 C 段表達的論述便能顯示其意思：" } }, { "doc_id": 163, "seg_id": 115, "translation": { "en": "‘... a stay of proceedings is only appropriate ‘in the clearest of cases’, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.’", "zh-HK": "… 只有“最清楚不過的案件”，才適合擱置法律程序，在這些案件中，被告作出全面答辯及抗辯的權利遭受無法補救的損害，或繼續檢控會導致司法制度的誠信遭受無法彌補的損害。" } }, { "doc_id": 163, "seg_id": 116, "translation": { "en": "In the absence of a finding of ‘bad faith’, this standard will rarely, if ever be satisfied in a case where a fair trial is still possible. Even if there be a finding of ‘bad faith’, that finding would not necessarily conclude the matter.”", "zh-HK": "如法庭無裁定“並非真誠”，而假若審訊又仍可公平進行，則甚少可以符合此標準。即使法庭裁定“並非真誠”，亦不一定能為事件作出最後定論。」" } }, { "doc_id": 163, "seg_id": 117, "translation": { "en": "27.15)The Court of Appeal adopted the above legal principles in the following three cases involving infringement of LPP: Secretary for Justice v Shum Chiu [2008] 1 HKLRD 155, HKSAR v Wong Hung Ki [2011] 1 HKLRD 183 and HKSAR v Ko Kit CACC 65/2009.", "zh-HK": "27.15)上訴法庭在以下三宗涉及侵犯保密權的案例採用上述法律原則，見：Secretary for Justice v Shum Chiu [2008] 1 HKLRD 155, HKSAR v Wong Hung Ki [2011] 1 HKLRD 183 及 HKSAR v Ko Kit CACC 65/2009。" } }, { "doc_id": 163, "seg_id": 118, "translation": { "en": "27.16)The Court of Appeal pointed out in Shum Chiu that, in determining whether there had been a infringement of LPP which constituted an abuse of process, the court had to consider the following:", "zh-HK": "27.16)上訴法庭在 Shum Chiu 一案指出，在考慮保密權是否被侵犯，以致引致濫用程序的情況出現，法庭有需要考慮以下各點：" } }, { "doc_id": 163, "seg_id": 119, "translation": { "en": "“56．…..", "zh-HK": "「56．….." } }, { "doc_id": 163, "seg_id": 120, "translation": { "en": "was the occasion one that prime facie was privileged;", "zh-HK": "就表面證據而言，涉案情況是否享有保密權。" } }, { "doc_id": 163, "seg_id": 121, "translation": { "en": "if so, was the intrusion carried out with knowledge, or where the authority ought to have known, that the occasion was privileged;", "zh-HK": "如果享有保密權，則有關當局侵犯保密權時，是否明知故犯，或理應知道涉案情況享有保密權。" } }, { "doc_id": 163, "seg_id": 122, "translation": { "en": "if the occasion was privileged, was there nonetheless strong ground for believing that it was not protected by privilege;", "zh-HK": "如涉案情況享有保密權，是否仍有強烈理由相信涉案情況不受保密權保障。" } }, { "doc_id": 163, "seg_id": 123, "translation": { "en": "4)If there was no strong ground, is there, even so, something in the reasons put forward by the law enforcement authority for the conduct that takes the situation out of one that would otherwise be condemned as an affront to the public conscience?", "zh-HK": "如沒有強烈理由，即使如此，執法機構就有關行為所提出的理由有哪部分會令事件不被指責為公然侮辱公眾良知？" } }, { "doc_id": 163, "seg_id": 124, "translation": { "en": "5)As to that last question, it is not possible, and it is not wise, to speculate what may suffice but we would suggest that ignorance of the right of privilege would not.”", "zh-HK": "有關最後一個問題，憑空揣測什麼理由才算足夠，是不可能亦不明智的，但本庭認為聲稱不知曉保密權是不足夠的。」" } }, { "doc_id": 163, "seg_id": 125, "translation": { "en": "27.17)In Ko Kit, the Court of Appeal had this to say:", "zh-HK": "27.17)在 Ko Kit 一案，上訴庭指出，" } }, { "doc_id": 163, "seg_id": 126, "translation": { "en": "“48.In deciding whether conduct goes sufficiently far as to amount to such an affront to the public conscience as to require that a court follow the exceptional course of granting a stay of proceedings, the motive or intent of the law enforcement agency concerned, it seems to us, must be a relevant and important consideration for the court. The recurrent theme throughout the cases to which we have been referred is the abhorrence felt by the court towards the calculated and cynical conduct of the various law enforcement agencies which set out with the settled intention of recording privileged communications.”", "zh-HK": "「48.要決定某項行為是否足以構成公然冒犯公眾良知，致令法庭須要例外行事批准擱置聆訊，有關執法機構的動機或意圖，照我們看來，必然是法庭考慮的相關重要因素。上述案例重覆出現同一主題，即不同執法機構處心積慮，不擇手段，一開始就意圖清晰打算記錄特權通訊，法庭對這種行為感到厭惡。」" } }, { "doc_id": 163, "seg_id": 127, "translation": { "en": "2.3 Evidence obtained in breach of constitutional rights", "zh-HK": "2.3 侵犯憲法權利取得的證據" } }, { "doc_id": 163, "seg_id": 128, "translation": { "en": "27.18)In HKSAR v Muhammad Riza Khan, FACC 13/2010, law enforcement officers had secretly recorded the conversation between the defendant and an undercover agent regarding the presence of dangerous drugs in a suitcase. In considering whether evidence obtained in violation of the accused’s constitutional right to privacy was admissible, the Court of Final Appeal adopted the following test:", "zh-HK": "27.18)在 HKSAR v Muhammad Riza Khan, FACC 13/2010 一案，執法人員偷錄被告人與卧底執法人員有關藏有毒品的行李箱的談話，終審法院考慮法庭可否接納侵犯被告人私隱憲法權利的證供採用以下的驗證準則：" } }, { "doc_id": 163, "seg_id": 129, "translation": { "en": "“20.The test can be stated thus. Evidence obtained in breach of a defendant’s constitutional rights can nevertheless be received if, upon a careful examination of the circumstances, its reception (i) is conducive to a fair trial, (ii) is reconcilable with the respect due to the right or rights concerned, (iii) appears unlikely to encourage any future breaches of that, those or other rights. The risk-assessment called for under the third element will always be made by the courts, vigilantly of course, in the light of their up-to-date experience. Thus is achieved, consistently with the constitution, a proper balance between the interests of individual defendants and those of society as a whole. It cannot have been the framers’ intention – and is not the constitution’s effect – to stand in the way of such of balance being struck. Just as rationality and proportionality can justify an impact on a non-absolute constitutional right, so can they justify a discretion to receive evidence obtained in breach of a constitutional right. Under the test stated above, the discretion concerned is rational and proportionate. The factors to be taken into account in applying this test and the weight to be accorded to each such factor will depend on the circumstances of each case.”", "zh-HK": "「20.驗證準則闡述如下：即使是侵犯被告人憲法權利所獲取的證據，經仔細審視情況後，若符合下述條件，仍可獲法庭接納；(i) 證據有利公平審訊，(ii) 證據與尊重有關權利並無相悖，(iii) 看來相當不可能會鼓勵他人日後違反該項或該等權利或其他權利。法庭必須時刻對第三項要素作出風險評估，當然還要提高警覺按最新經驗評估。如此在合憲的情況下，個別被告人的權益與整體社會權益兩者之間便能達至適當平衡。無論是擬法者的原意或憲法的內容，都沒有阻撓取得這種平衡。合理與否及相稱與否可成為理據，對並非絕對的憲法權利有所影響，同一道理，這亦可成為理據，決定可否行使酌情權接納藉侵犯憲法權利所獲取的證據。根據上述準則，有關酌情權必須合理及相稱。應用這項準則時須考慮的因素及須給予每項因素的比重則視乎個別案件的情況而定。」" } }, { "doc_id": 163, "seg_id": 130, "translation": { "en": "2.4 English case law", "zh-HK": "2.4 英國案例" } }, { "doc_id": 163, "seg_id": 131, "translation": { "en": "27.19)In the English case of R v Grant [2005] 3 WLR 437, the accused applied for a stay of the trial on the ground that his LPP had been violated. The trial judge held that there was no evidence to prove that the accused had suffered any prejudice as a result of the conduct in question and dismissed the application. This was overturned by the Court of Appeal, which held that although the prosecution had not used the privileged conversation intercepted, deliberate violation of LPP enjoyed by the suspect was an affront to the integrity of the justice system which rendered the prosecution abusive, and this was not to be countenanced by the court.", "zh-HK": "27.19)在英國 R v Grant [2005] 3 WLR 437 一案，被告人以其保密權被侵犯，申請擱置審訊。原審法官認為申請人未能證明有關行為對他不利及駁回擱置聆訊申請。上訴法庭推翻原審法官的裁決。上訴法庭認為，雖然控方沒有引用被竊聽的保密交談，但蓄意侵犯疑犯享有的保密權，是公然冒犯司法制度的誠信，導致濫用檢控，這是法庭不可以接受的。" } }, { "doc_id": 163, "seg_id": 132, "translation": { "en": "27.20)In Warren v Attorney General for Jersey [2012] 1 AC 22 the Privy Council expressed disagreement with the views of the Court of Appeal in Grant. Lord Dyson JSC said at para 36 of the judgment:", "zh-HK": "27.20)英國樞密院在 Warren v Attorney General for Jersey [2012] 1 AC 22 一案不認同英國上訴法庭在 Grant 一案的見解。Lord Dyson JSC 在判案書第 36 段說：" } }, { "doc_id": 163, "seg_id": 133, "translation": { "en": "“36.… the Board respectfully considers that the decision in R v Grant was wrong. The statement at para 54 suggests that the deliberate invasion of a suspected person’s right to legal professional privilege is to be assimilated to the abduction and entrapment cases where the balancing exercise will generally lead to a stay of the proceedings. The Board agrees that the deliberate invasion by the police of a suspect’s right to legal professional privilege is a serious affront to the integrity of the justice system which may often lead to the conclusion that the proceedings should be stayed. But the particular circumstances of each case must be considered and carefully weighed in the balance. It was obviously right to hold on the facts in R v Grant that the gravity of the misconduct was a factor which militated in favour of a stay. But as against that, the accused was charged with a most serious crime and, crucially, the misconduct caused no prejudice to the accused. This was not even a case where the ‘but for’ factor had a part to play. The misconduct had no influence on the proceedings at all. In these circumstances, surely the trial judge was entitled to decide in the exercise of his discretion to refuse a stay and the Court of Appeal should not have held that his decision was wrong.” (emphasis supplied)", "zh-HK": "「36.……，本法庭謹此認為R v Grant的裁決是錯誤的。該案判詞第 54 段提出蓄意侵犯疑犯享有的法律專業保密權，視同擄拐及誘捕一類案件，而在這類案件中，經衡量各項因素後，一般會導致法律程序擱置。本法庭同意，警方蓄意侵犯疑犯享有的法律專業保密權，是嚴重地公然冒犯司法制度的誠信，往往可以達致應予擱置法律程序的結論。然而，每宗案件的個別情況都必須予以考慮並仔細衡量。在R v Grant一案中，根據案情，法庭裁定所涉不當行為嚴重，是有利擱置聆訊的因素，這顯然是正確的；但反之而言，被告被控一項極為嚴重的罪行，而至為關鍵的是所涉不當行為對被告並無造成任何損害。這宗案件甚至沒有“若非如此”便無法破案的因素。所涉不當行為對法律程序毫無影響。在這情況下，原審法官當然有權行使酌情權，決定拒絕擱置聆訊，上訴法庭不應裁定原審法官的決定錯誤。」(本庭加以強調)" } }, { "doc_id": 163, "seg_id": 134, "translation": { "en": "27.21)Lord Dyson JSC pointed out at para 24 of the judgment that in performing the balancing exercise, the court took into account such factors as:", "zh-HK": "27.21)Lord Dyson JSC 在判案書 24 段指出，法庭作出衡量時所考慮的因素包括：" } }, { "doc_id": 163, "seg_id": 135, "translation": { "en": "27.21)(1)the seriousness of the violation of the defendant’s rights;", "zh-HK": "27.21)(1)侵犯被告人權利的行為的嚴重性；" } }, { "doc_id": 163, "seg_id": 136, "translation": { "en": "27.21)(2)whether the police have acted in bad faith or maliciously or with an improper [motive];", "zh-HK": "27.21)(2)警方的行為是否不真誠，惡意或存有不正當的；" } }, { "doc_id": 163, "seg_id": 137, "translation": { "en": "27.21)(3)whether the misconduct was committed in circumstances of urgency, emergency or necessity;", "zh-HK": "27.21)(3)不當的行為是否在緊急、危急或有需要的情況下作出；" } }, { "doc_id": 163, "seg_id": 138, "translation": { "en": "27.21)(4)the availability or otherwise of other sanctions against the party responsible for the misconduct；", "zh-HK": "27.21)(4)作出不正當行為的一方是否會被其他方式制裁；" } }, { "doc_id": 163, "seg_id": 139, "translation": { "en": "27.21)(5)the seriousness of the offence with which the defendant is charged.", "zh-HK": "27.21)(5)被告人被指控罪名的嚴重性。" } }, { "doc_id": 163, "seg_id": 140, "translation": { "en": "27.22)In R v. Maxwell [2010] UKSC 48, the English Court of Appeal considered the issue of retrial in criminal cases. The defendant in that case was convicted of robbery and murder and sentenced to life imprisonment. The evidence against the accused came from a repeat offender who was also serving a prison sentence and who had in the past served a sentence of imprisonment with the accused. The defendant alleged that the police were planning to pay this repeat offender a large sum of money on his release from prison. Evidence showed that the police had been providing benefits to this repeat offender, which included monetary benefits, permitting him to consume drugs in front of them and not investigating or prosecuting his other violent conduct. Evidence showed that the police, prosecuting authority and counsel had concealed such information and misled the court. However, while serving his sentence, the defendant voluntarily admitted several times that he had committed the offences of which he had been convicted. The Court of Appeal quashed the convictions but ordered a retrial. The defendant’s appeal to the Supreme Court of England against the order for a retrial was dismissed.", "zh-HK": "27.22)在 R v. Maxwell [2010] UKSC 48，英國最高法院考慮刑事案件重審的議題。在該案，被告人被裁定搶劫及謀殺罪名成立及被判終身監禁。針對被告人的證供來自一名積犯。該名積犯亦在服刑。他之前與被告人一起服刑。被告人聲稱警方預備在該名積犯服刑釋放後會提供一筆大數目的金錢給他。證據顯示警方一直有提供利益給這名積犯，這些利益包括金錢利益、容忍他在警察面前吸毒及警方不調查或檢控該名積犯的其他暴力行為。證據顯示警方、檢控當局及律師曾經隱瞞這些資料及誤導法庭。但同時被告人在服刑時多次自願承認他是干犯了被定罪的罪行。上訴法庭撤銷定罪，但命令案件重審。被告人就重審的判決向英國最高法院提出上訴，但被駁回上訴。" } }, { "doc_id": 163, "seg_id": 141, "translation": { "en": "27.23)On the question of whether there should be a retrial, the English Supreme Court considered the decided cases in which proceedings were stayed by reason of prosecutorial misconduct which constituted an abuse of process. Lord Dyson at para 21 of the judgment said that, where prosecutorial misconduct was raised as a reason for refusing a retrial, the court might treat the case as being analogous to an application for stay on the ground of prosecutorial misconduct; however, the two situations were not identical. Lord Dyson held the view that the question of “whether the interests of justice require a retrial” was broader than the question of “whether it is an abuse of process to allow a prosecution to proceed”.", "zh-HK": "27.23)英國最高法院在處理是否重審時考慮了因為控方不當行為引致濫用程序，擱置聆訊的案例。Lord Dyson 在判案書第 21 段說，雖然可以以處理控方不當行為，擱置聆訊的相同方法處理是否因控方不當行為而拒絕重審，但這兩種情況並不是完全相同。Lord Dyson 認為「公義利益是否需要重審」的議題是廣泛過「若繼續准許檢控進行是否構成濫用程序」這個議題。" } }, { "doc_id": 163, "seg_id": 142, "translation": { "en": "3. Our views", "zh-HK": "3. 本庭的意見" } }, { "doc_id": 163, "seg_id": 143, "translation": { "en": "3.1 Findings of fact", "zh-HK": "3.1 事實裁決" } }, { "doc_id": 163, "seg_id": 144, "translation": { "en": "27.24)With respect, we do not agree with the 1st applicant’s submission that Judge Yau had made erroneous findings of fact. On the evidence given by the relevant prosecution witnesses, Judge Yau correctly found that the ICAC had been bona fide without deliberately probing for the privileged information from Miss Wong. We also do not agree that the ICAC had made use of such information in seeking legal advice from the Department of Justice as to whether Miss Wong was to be granted immunity as a witness to give evidence against the defendants in the present case. As the respondent has pointed out, the ICAC had already taken the NPS with Miss Wong by that time, which meant that they had already obtained the legal advice in this regard. As PW2 said that the privileged information had no evidential value at all, Judge Yau found that the information had no effect whatsoever on the ICAC’s assessment of whether Miss Wong would be used as a prosecution witness.", "zh-HK": "27.24)本庭不認同第一申請人就邱法官作出錯誤事實裁決的陳詞。根據有關控方證人的證供，邱法官是正確地裁斷廉署是本著真誠的動機，沒有刻意向黃小姐探取這些保密權的資料。本庭亦不認同廉署是利用這些資料向律政司尋求法律意見是否給予黃小姐特赦證人身分指證同案各被告人。正如代表答辯人一方所說，廉署當時已經是向黃小姐提取 NPS。這表示廉署是已經獲得這一方面的法律意見。由於控方第二證人說這些受保護的資料根本沒有證據參考價值，故此邱法官裁定這些資料在廉署考慮會否利用黃小姐作為控方證人根本起不了作用。" } }, { "doc_id": 163, "seg_id": 145, "translation": { "en": "3.2 Findings on law", "zh-HK": "3.2 法律裁決" } }, { "doc_id": 163, "seg_id": 146, "translation": { "en": "27.25)We agree that legal professional privilege is one of the cornerstones of the rule of law in Hong Kong. At the same time, however, the current law states clearly that a stay of criminal proceedings would only be justified in highly exceptional circumstances. The court has to balance all the relevant factors before coming to a decision. This principle does not go against the point previously made about LPP being an absolute right: the issue before us now is whether the infringement of LPP warrants a stay of the hearing, which is different from the need to infringe such privilege and disclose privileged communications on the ground of the public interest in apprehending and prosecuting criminals.", "zh-HK": "27.25)本庭認同法律專業保密權是香港法治的其中一個重要基石，但同時現行的法律清楚說明，只有在非常例外的情況下才有充分理由支持擱置刑事訴訟程序。法庭必須衡量所有有關的因素才可作出決定。這個原則與上文所述保密權是一個絕對權利沒有抵觸，因為現在考慮的議題是是否因為保密權被侵犯而需要擱置聆訊，這不等同要將罪犯繩之以法的公眾利益為理由而侵犯這個權利，披露受到保密權保障的通訊。" } }, { "doc_id": 163, "seg_id": 147, "translation": { "en": "27.26)In the present case, we agree with Judge Yau’s ruling that the misconduct of the ICAC had not caused any prejudice to the 1st applicant. In applying for a stay, the 1st applicant did not rely on the first limb of the relevant legal principle, namely that he could not possibly have a fair trial, but instead relied on the second limb, namely that the conduct of the ICAC offended the court’s sense of justice and propriety, thereby rendering the prosecution abusive. As the Privy Council explained in Warren, an application under this second limb did not focus on protecting the accused from unfair treatment, a question which formed the subject matter of an application under the first limb only. Having said that, in considering whether the hearing was to be stayed, the Privy Council balanced various factors, including whether the conduct of the law enforcement officers had caused any prejudice to the accsued.", "zh-HK": "27.26)在本案，本庭認同邱法官裁定廉署不當行為不造成對第一申請人任何損害的裁決。在本案，第一申請人申請擱置聆訊的原因不是引用擱置申請法律原則的第一類別，即他不可以獲得公平審訊，而是根據第二類別，即廉署的行為令到法院的司法公正感及適當性受到侵犯，構成濫用檢控。正如樞密院在 Warren 一案闡述，這一類別的申請重點並不是要避免被告人受到不公平的對待，被告人是否受到不公平的對待只是第一類別的關注點。雖然如此，樞密院在考慮是否擱置聆訊時所衡量的因素是包括執法人員的行為是否對被告人造成任何損害。" } }, { "doc_id": 163, "seg_id": 148, "translation": { "en": "27.27)The 1st applicant submits that the factors to be considered by the court do not include whether the misconduct has caused any prejudice to the accused. The 1st appellant submits that, having successfully proved a deliberate violation of his LPP, the accused is not required to establish that he thereby suffered prejudice; instead, the law enforcement agency involved then bears the burden of proving the existence of compelling reasons to justify the violation. In HKSAR v Wong Hung Ki, the Hong Kong Court of Appeal, citing United States v Levy 577 F 2d 200 (1978), 209 and Grant, said that if there had been a deliberate violation of the applicant’s LPP, following which the law enforcement agency obtain such confidential information, it was not necessary for the applicant to establish that he had suffered prejudice. The 1st applicant submits that the New Zealand case of The Queen v Taylor Ivan Antonievic and others [2012] NZHC 2686 also supports his contention.", "zh-HK": "27.27)第一申請人所持觀點是，法庭所需要衡量的因素不包括不當的行為是否對被告人造成不利。第一申請人指當被告人成功舉證他的保密權受到蓄意侵犯後，他是無須證明他是蒙受了不利。進行侵犯的執法機關便會背上責任證明案件存有強烈的解釋支持侵犯的行為。香港上訴法庭在HKSAR v Wong Hung Ki 一案引用美國案例United States v Levy 577 F 2d 200 (1978), 209 及Grant 兩案說，若然申請人的法律保密權被蓄意侵犯了，執法機構因而獲得了這些機密資料，申請人是不用在申請中證明他是蒙受了不利。第一申請人認為紐西蘭高等法院 The Queen v Taylor Ivan Antonievic and others [2012] NZHC 2686 一案亦支持其論點。" } }, { "doc_id": 163, "seg_id": 149, "translation": { "en": "27.28)With respect, we do not agree. In Warren, the Privy Council did not rule out the factor that it was not necessary to consider the prejudicial effect of prosecutorial misconduct on the defendant. As Lord Kerr of Tonaghmore JSC explained in para 83 of the judgment in Warren, the balancing factors set out by Lord Dyson in the case were not exhaustive, although Lord Kerr took the view that in dealing with applications under the second limb, in order to avoid confusion, the court should not consider if the relevant conduct was prejudicial to the defendant. In any event, in Warren, Lord Dyson did, on the question of stay of hearing, consider whether the relevant conduct had been prejudicial to the defendant. Apart from Lord Kerr, the other judges did not take issue with Lord Dyson’s decision to consider the question of prejudice to the defendant. In our view, as the opinion of the English Court of Appeal in Grant has been overturned by the Privy Council in Warren, it is necessary to rectify the view expressed by the Hong Kong Court of Appeal in Wong Hung Ki. In Taylor the New Zealand court did not discuss this issue in depth. In our view, as a matter of principle, if the court is required to consider all relevant factors in determining whether or not to stay a hearing, then it ought to take into account, as one of those factors, whether the applicant has been prejudiced by reason of the relevant misconduct. Otherwise, the balancing exercise would be incomplete. We respectfully agree with the judgment in Warren in this regard.", "zh-HK": "27.28)本庭不同意這說法。在 Warren，樞密院沒有撇除不需要考慮檢控不當行為對被告人不利的因素。正如 Lord Kerr of Tonaghmore JSC 在 Warren 一案第 83 段解釋，Lord Dyson 在該案提出的衡量因素並非是全面的因素，雖然 Lord Kerr 認為在考慮涉及第二類別的申請時，為了避免混淆，法庭不應該考慮有關行為是否對被告人不利。無論如何，Lord Dyson 在 Warren 一案在處理是否擱置聆訊這議題上是有考慮到有關行為是否對被告人不利的議題。除了Lord Kerr 之外，其他的法官沒有對 Lord Dyson 考慮被告人不利裁決提出異議。本庭認為由於英國上訴法庭在 Grant 一案的意見被樞密院 Warren 案推翻，故此本港上訴法庭在 Wong Hung Ki 所表達的意見，亦需要修正。紐西蘭法庭在 Taylor 一案沒有深入討論這議題。本庭認為若果法庭需要考慮所有有關連的因素來決定是否擱置審訊，從原則性的角度來看，這理應包括申請人是否因有關不當行為受到不利因素，否則這會是一個不完整的衡量。本庭同意 Warrern 一案這方面的判決。" } }, { "doc_id": 163, "seg_id": 150, "translation": { "en": "27.29)In the present case, even if it is unnecessary to consider this factor, we are of the view that the circumstances of the case were not such as to warrant a stay of the hearing. The ICAC had not abused the process and thereby offended the court’s sense of justice and propriety so that the entire prosecution was tainted as an abuse of process. There was no affront to the public conscience.", "zh-HK": "27.29)在本案，就算這個因素不需要考慮，本庭仍認為本案的情況未達至需要法庭擱置聆訊的標準，廉署沒有濫用程序令法院的司法公正感及適當性受到侵犯導致整個檢控行動被污染成為濫用程序。公眾良知是沒有受傷害。" } }, { "doc_id": 163, "seg_id": 151, "translation": { "en": "37.30)We do not find it necessary to discuss Maxwell at length because the matters required to be dealt with in the present case have already been adequately discussed in other decided cases, and we have been able to come to a decision on the basis of those discussions.", "zh-HK": "37.30)本庭不需要深入討論 Maxwell 一案，因為其他案例已經就本案所要處理的事項提供足夠的討論，讓本庭作出判決。" } }, { "doc_id": 163, "seg_id": 152, "translation": { "en": "27.31)The first ground of appeal is rejected.", "zh-HK": "27.31)本庭駁回第一項上訴理由。" } }, { "doc_id": 163, "seg_id": 153, "translation": { "en": "The 2nd applicant’s position", "zh-HK": "第二申請人的立場" } }, { "doc_id": 163, "seg_id": 154, "translation": { "en": "27.32)The 2nd applicant also submits, as his ground of appeal, that Judge Yau had erroneously refused to grant a stay. It was only near the end of this appeal hearing that reliance on this ground of appeal was expressed on behalf of the 2nd applicant. The respondent did not object to the 2nd applicant joining in the application.", "zh-HK": "27.32)第二申請人亦以邱法官錯誤拒絕擱置聆訊為其上訴理由。代表第二申請人的一方只是在本上訴聆訊最後一刻才依賴這個上訴理由。答辯人不反對第二申請人加入申請。" } }, { "doc_id": 163, "seg_id": 155, "translation": { "en": "27.33)Although we have allowed the 2nd applicant to rely on this ground, we feel obliged to criticize such practice. The 2nd applicant’s legal team, having represented him at the trial, had sufficient time to consider if they should rely on the above ground in support of their application for leave to appeal. This kind of last-minute application is inappropriate and may even be described as unprofessional. In any event, for the same reasons, we also reject this ground of appeal put forward by the 2nd applicant.", "zh-HK": "27.33)雖然本庭批准第二申請人依賴這個上訴理由，但本庭必須批評這樣的手法。第二申請人的律師團隊在原審時已代表他，他們有足夠時間在決定提出本上訴許可申請時考慮是否應該依賴這一項上訴理由。這種最後一分鐘才提出的申請是不適當的，甚至乎可說是不專業的做法。無論如何，根據同一理由，本庭亦駁回第二申請人這一項上訴理由。" } }, { "doc_id": 163, "seg_id": 156, "translation": { "en": "2) Other grounds of appeal", "zh-HK": "2) 其他上訴理據" } }, { "doc_id": 163, "seg_id": 157, "translation": { "en": "2.1 Evidence on the 2nd to 7th Charges", "zh-HK": "2.1 控罪二至七的證據" } }, { "doc_id": 163, "seg_id": 158, "translation": { "en": "1)We will first outline the evidence in support of the 2nd to 7th Charges, which fall under four headings:", "zh-HK": "1)本庭首先簡述支持控方第二至第七項控罪的證據，它們可分為四部份：" } }, { "doc_id": 163, "seg_id": 159, "translation": { "en": "(1)PW1’s evidence;", "zh-HK": "(1)控方第一證人的證供；" } }, { "doc_id": 163, "seg_id": 160, "translation": { "en": "(2)flow of capital;", "zh-HK": "(2)資金的流向；" } }, { "doc_id": 163, "seg_id": 161, "translation": { "en": "(3)other corroborative evidence; and", "zh-HK": "(3)其他佐證；及" } }, { "doc_id": 163, "seg_id": 162, "translation": { "en": "(4)evidence from the banks.", "zh-HK": "(4)銀行證供。" } }, { "doc_id": 163, "seg_id": 163, "translation": { "en": "2.1(1) PW1’s evidence", "zh-HK": "2.1(1) 控方第一證人的證供" } }, { "doc_id": 163, "seg_id": 164, "translation": { "en": "28.2)PW1, who gave evidence under immunity from prosecution, gave evidence that the 1st applicant had told him DDL was in need of money for cashflow and requested him to issue some false commercial invoices to seek payment for goods by DDL, although those invoices were in fact not based on any business dealings. When the 1st applicant needed such commercial invoices, he phoned PW1 and told him how much money he needed, and then PW1 personally prepared the relevant commercial invoices for the 1st applicant.", "zh-HK": "28.2)控方第一證人在獲豁免起訴的情況下作供。控方第一證人指第一申請人對他說 DDL 需要錢周轉，要求他開出一些虛假的商業發票向 DDL 收取貨款，這些商業發票其實並沒有生意往來的基礎。當第一申請人需要這些商業發票時便會打電話給控方第一證人，告訴控方第一證人他需要多少錢。控方第一證人便會親自準備有關商業發票給第一申請人。" } }, { "doc_id": 163, "seg_id": 165, "translation": { "en": "28.3)Upon receiving money from the banks, PW1 returned the money in full to DIL after deducting the bank handling charges.", "zh-HK": "28.3)控方第一證人收到銀行支付的錢後會在扣除銀行手續費後全數回給 DIL。" } }, { "doc_id": 163, "seg_id": 166, "translation": { "en": "28.4)According to PW1, the moulds that he referred to for charging payment in the false invoices included some uncharged extra moulds previously produced for DDL, some non-existing moulds, some genuine moulds with the letter “S” added to the end of the model numbers for ease of identification, models intended to be developed with the moulds not yet ready, existing moulds models (but no physical objects existed for these models), and alternative moulds currently in frequent use, etc.. PW1 explained clearly in his testimony how he identified and remembered each false invoice.", "zh-HK": "28.4)控方第一證人說，在虛假發票中他所使用來收貨款的模具，包括一些之前替 DDL 生產時多做了但沒有收費的工模、一些不存在的模具、一些真正工模型號後加 S 字來識別、有意開發但尚未有工模存在的型號、已存在的模具型號(但此等型號沒有實物模具存在)以及現在常用的工模更替等。控方第一證人作供時清楚解釋他如何識別及記得每一張發票均是虛假的。" } }, { "doc_id": 163, "seg_id": 167, "translation": { "en": "2.1(2) Flow of money", "zh-HK": "2.1(2) 資金的流向" } }, { "doc_id": 163, "seg_id": 168, "translation": { "en": "28.5)The flow of money in relation to the 2nd to 7th Charges has been set out in detail in Admitted Facts (1). It can be seen from Admitted Facts (1) that, each time DDL applied to a bank for a loan using false commercial invoices, and shortly after the loan had been granted by the bank and deposited into the account of T&K, T&K deposited the loan into DIL’s bank account by a cheque signed by PW2. The sum would then be quickly deposited back into DDL’s account by a cheque signed by the 1st or 2nd applicant. For the 3rd to 5th Charges, T&K transferred the loans involved into DIL’s account in one single deposit by a cheque for the amount of $1,500,000.", "zh-HK": "28.5)就控罪二至七的資金流向，控辯雙方於第一份事實確認書中已詳細列明。於第一份事實確認書中，可以見到每一次當 DDL 利用虛假商業發票向相關銀行申請貸款，而相關銀行批出貸款並存到「千基」的戶口之後不久，「千基」便以一張由控方第二證人簽署的支票將相關的貸款存到 DIL 的銀行戶口。 DIL 亦於短時間內以一張由第一或第二申請人簽署的支票將該些款項存回 DDL 的戶口中。其中控罪三至五，「千基」更是以一張總額 $1,500,000 的支票將控罪三至五的貸款一次過存入 DIL 的戶口。" } }, { "doc_id": 163, "seg_id": 169, "translation": { "en": "2.1(3) Other corroborative evidence", "zh-HK": "2.1(3) 其他佐證" } }, { "doc_id": 163, "seg_id": 170, "translation": { "en": "28.6)Apart from the above evidence, the prosecution also relied on PW2’s evidence as cooroborative evidence, in particular her evidence on how she dealt with the loans and the relevant documentary records. PW2 was able to identify from T&K’s books the monies relating to the 2nd to 7th Charges because the entries for those monies were different from those for other normal transactions. For normal transactions, each entry was accompanied by a commercial invoice number; for those loans she recorded the amounts in a different way, such as “loans (will be refund)”, “capital” or with no remarks at all. In respect of the entries with no remarks at all, PW2 explained that she had absolutely no idea how the monies should be recorded in the books, and therefore, in order to avoid confusion, no information was provided for these entries for identification purposes.", "zh-HK": "28.6)除上述證供外，控方亦倚賴控方第二證人的證供，特別是她處理該些貸款時的做法及相關文件紀錄作為佐證。從「千基」的帳簿中，控方第二證人能認出控罪二至七的相關款項，因為該些款項與其他正常交易的紀錄方式不同。正常交易中每次記帳均會附有商業發票編號，但就這些貸款她會以不同的形式紀錄有關的款項，例如「loans (will be refund)」，「capital」或完全沒有註釋。就完全沒有註釋的記項，控方第二證人解釋說她根本不知道應該在帳項內如何紀錄有關款項，因此不想引起混淆，所以便沒有在該些款項旁填上任何資料已作識別。" } }, { "doc_id": 163, "seg_id": 171, "translation": { "en": "2.1(4) Evidence from the banks", "zh-HK": "2.1(4) 銀行證供" } }, { "doc_id": 163, "seg_id": 172, "translation": { "en": "28.7)The banks pointed out, had they known that the commercial invoices in support of the applications for loans were not issued pursuant to genuine commercial transactions, they would not have granted the loans. The loans and interests relating to all the charges have been returned to the banks in full.", "zh-HK": "28.7)銀行指出，如果它們知道用作申請貸款的商業發票，並非真正的商業交易的發票的話，它們就不會批出貸款。所有這些控罪的貸款及利息已全數歸還銀行。" } }, { "doc_id": 163, "seg_id": 173, "translation": { "en": "3) Second and third grounds of appeal (applicable to the 2nd to 7th Charges)", "zh-HK": "3) 第二、三上訴理由(適用於第二至第七項控罪)" } }, { "doc_id": 163, "seg_id": 174, "translation": { "en": "3.1 Assessment of PW1’s integrity", "zh-HK": "3.1 控方第一證人誠信的評核" } }, { "doc_id": 163, "seg_id": 175, "translation": { "en": "1)PW1 was the most essential witness in respect of the 2nd to 7th Charges. The 1st applicant submits that Judge Yau erred in finding this witness veracious and reliable because the Judge had only considered that PW1 did not have any motive to frame up the 1st applicant, that the two parties continued to have business dealings, and that, were PW1 not a person of integrity, it would be difficult to see how Briga group would have allowed T&K to continue to manufacture and process products for them. The 1st applicant submits that, having regarded the fact that PW1 had been granted immunity from prosecution as an indication that the offence must have been committed, Judge Yau shifted the onus of proof to the 1st applicant, asking him what motive there was for PW1 to frame him up. The 1st applicant submits that the point that both parties continued their business dealings because of PW1’s integrity was made by Judge Yau out of sheer conjecture, as there was no evidence pointing to the circumstances under which the two parties continued their business dealings or the reasons why they did so.", "zh-HK": "1)控方第一證人是本案第二至第七項控罪最具關鍵性的證人。第一申請人稱邱法官錯誤裁定他是誠實可靠的證人，原因是邱法官只是考慮了控方第一證人沒有動機去誣衊第一申請人及雙方都繼續有做生意，若果控方第一證人不是有誠信的人很難令人信服 Briga 集團仍會讓「千基」繼續替它的產品進行生產和加工。第一申請人認為邱法官將控方第一證人獲豁免起訴視作罪行必然曾經發生，然後把舉證責任轉移給第一申請人，及反問第一申請人，控方第一證人有甚麼動機去誣衊他。第一申請人說雙方繼續做生意是因為控方第一證人是有誠信，這只是邱法官自己的猜想，案件根本缺乏證據說明雙方繼續有生意往來的情況及原因。" } }, { "doc_id": 163, "seg_id": 176, "translation": { "en": "29.2)We agree that the assessment of the honesty or otherwise of a witness should not be based solely on whether he/she has the motive to frame up the defendant. Moreover, ongoing business dealings between the two parties should not be the only reason for finding the 1st applicant an honest or dishonest witness. However, in our view, apart from PW1’s evidence, there was also other evidence in support of the 2nd to 7th Charges, such as the flow of money and other corroborative evidence. Having considered the relevant evidence, Judge Yau found, in our view correctly, that PW1 was an honest witness. The reasons stated by Judge Yau were just two of the many reasons for his finding, and he had never shifted the onus of proof to the 1st applicant.", "zh-HK": "29.2)本庭認同在考慮一名證人是否是誠實的證人時，不應該單以他是否有動機去誣衊被告人作為分析的基礎。另外，雙方繼續做生意也不是裁定第一申請人是否是誠實的證人的唯一原因。但本庭認為支持第二至第七項控罪的證供，除了控方第一證人的證供外，還有其他證據，例如資金的流向及其他的佐證。在考慮有關證供後，邱法官裁定控方第一證人是一名誠實的證人是正確的決定。邱法官所提出的兩項理由只是眾多理由的其中兩點，他絕對沒有將舉證責任轉移給第一申請人。" } }, { "doc_id": 163, "seg_id": 177, "translation": { "en": "29.3)The 1st applicant also submits that Judge Yau had not taken into account that PW1’s evidence in respect of the 1st Charge had already been rebutted by the two accounting experts for the prosecution (PW12 and PW14). In the 1st Charge, PW1 alleged that the 1st applicant had told him that he would have an additional 32% of DIL shares transferred from DDL to him and that no disclosure was necessary in the company results if the shareholding of the subsidiary company was less than 20%. PW12 testified that according to the Equity Method of Accounting, even if there was no transfer of the 32% shares, DDL would still not be required to disclose the loss suffered by DIL in the financial report and prospectus. The two DDL audit documents produced to the court by PW14 showed that in the financial year preceding the transfer of the 32% shares, i.e. 2002, DDL had already ceased to bear DIL’s loss and had not disclosed DIL’s loss in its financial report. This was the very evidence which proved that DDL had already adopted the Equity Method of Accounting back in 2002. Being a chartered accountant and an officer responsible for corporate accounting and financial matters, the 1st applicant must, back in 2002, have been aware of such fact or the fact that DDL had already adopted the Equity Method of Accounting. Therefore, the conversation PW1 alleged to have had with the 1st applicant about the effect of the share transfer appeared to be self-contradictory.", "zh-HK": "29.3)第一申請人亦說，邱法官沒有考慮控方第一證人在第一項控罪的證據已被控方兩位會計專家(控方第十二及第十四證人)駁斥。在第一項控罪，控方第一證人指稱第一申請人對他說會將額外 32% 的 DIL 股權由 DDL 轉給他及說如果子公司佔股不超過 20% 就不需要在公司業績中披露出來。控方第十二證人的證供是指根據會計原則的 Equity Method of Accounting，縱使沒有 32% 的股份轉讓，DDL 亦無須在財政報告及招股書上披露 DIL 的虧損。控方第十四證人呈堂的兩份 DDL 核數文件顯示，DDL 在 32% 股份轉移前的早一個財政年度，即 2002 年 DDL 的財政報告已經停止分擔 DIL 的虧損及沒有披露 DIL 的虧損。這證據正是證明 DDL 早於 2002 年已經引用 Equity Method of Accounting。第一申請人作為特許會計師及負責公司的會計和財務的管理人員，他必然早於 2002 年已經知道此事實或者 DDL 早已引用了Equity Method of Accounting 會計上的情況。故此，控方第一證人聲稱與第一申請人有關股份轉讓的作用對話表面上是有矛盾的。" } }, { "doc_id": 163, "seg_id": 178, "translation": { "en": "29.4)Judge Yau found the 1st Charge not established for the following reasons:", "zh-HK": "29.4)邱法官裁定第一項控罪罪名不成立的原因如下：" } }, { "doc_id": 163, "seg_id": 179, "translation": { "en": "“202.This gives rise to a question that I must consider: would the performance of the agreement between PW1 and the 1st defendant constitute an offence? Given that a company applying for listing is not required to disclose the loss of an associated company, then even if there was no such false share transfer, the non-disclosure of the loss of DIL and DML when Daka Designs applied for listing would not have contravened the listing rules or constituted any offence. For this reason, we must scrutinize the agreement between PW1 and the 1st defendant. In fact, what PW1 agreed with the 1st defendant to do was become the nominal majority shareholder of DIL in order to assist Daka Designs in getting listed in Singapore. The 1st defendant told PW1 that if DDL’s shareholding in DIL did not exceed 20%, DDL would not be required to disclose the loss of its subsidiary. The 1st defendant did not specify which subsidiary he was talking about, but it was beyond doubt that both he and the 1st defendant knew that it referred to DIL and DML. The ultimate objective of their agreement was to procure the successful listing of Daka Designs.", "zh-HK": "「202.由此引申出一個本席必須考慮的問題，就是控方第一證人及第一被告人之間的協議，如果實行的話會否構成罪行?既然一間申請上市的公司根本就不用披露一間associated company的虧損，那麼就算沒有這個虛假股份轉讓，Daka Designs 申請上市時，不披露 DIL 及 DML 的虧損也不會違反上市規則，及不構成罪行。為此我們必須細看控方第一證人及第一被告人之間的協議。其實控方第一證人答允第一被告人的就是成為DIL的掛名大股東去幫助 Daka Designs 在新加坡上市。第一被告人告訴控方第一證人，若果 DDL 擁有少於百分之二十 DIL 股份，DDL 就不用披露其子公司的虧損。第一被告人沒有說明他所指的子公司是那一間公司，但毫無疑問，他與第一被告人都知道所指的是 DIL 及 DML 。他們兩人協議的最終目的是以此促成Daka Designs 成功上市。" } }, { "doc_id": 163, "seg_id": 180, "translation": { "en": "203. Their agreement was not to directly assist in the listing of Daka Designs by means of a false share transfer, but instead to procure the listing of Daka Designs by discharging Daka Designs’ obligation to disclose the losses of DIL and DML. Obviously, when the 1st defendant requested PW1 to effect this false share transfer, he did not know that Daka Designs was simply not required to disclose the losses of DIL and DML under the SGX listing regulations and the law of Singapore regardless of whether such transfer took place. Therefore, when PW1 and the 1st defendant reached the agreement, their intention was to discharge Daka Designs’ obligation to disclose the losses of DIL and DML so as to assist Daka Designs in getting listed. This intention could not possibly constitute a criminal offence. In other words, an agreement formed on such a basis and bearing such an objective could not possibly constitute a conspiracy which attracted criminal liability.”", "zh-HK": "203. 他們的協議並非直接以虛假股份轉讓去幫助 Daka Designs 上市，而是要透過解除 Daka Designs 披露 DIL 及 DML 的虧損的責任去促成Daka Designs 上市。很明顯，第一被告人要求控方第一證人作這虛假股份轉讓時，他也不知道無論有沒有這個股份轉讓，根據新交所的上市守則和新加坡的法例， Daka Designs 根本上就不需要披露 DIL 及 DML 的虧損。因此，當控方第一證人及第一被告人達成協議時，他們的意圖是要解除 Daka Designs 披露 DIL 及DML 的虧損的責任，以幫助 Daka Designs上市。這個意圖根本不構成一個刑事罪行。換言之，一個以此為基礎及目的的協議根本就不構成一個觸犯刑法的串謀。」" } }, { "doc_id": 163, "seg_id": 181, "translation": { "en": "29.5)In our view, whether the 1st applicant had said such things to PW1 is separate and distinct from whether the 1st Charge could be established. The 1st applicant had elected not to testify at trial. That he was an accountant by profession does not necessarily mean that he had not put forward the relevant suggestion to PW1 or that the two of them had not eventually reached the agreement. Under such circumstances, Judge Yau was entitled to draw an inference adverse to the 1st applicant. Whether PW1 was a veracious witness was purely a finding of fact. His testimony at trial lasted as long as 13 days. In order to successfully overturn Judge Yau’s findings on PW1’s credibility, the 1st applicant has to prove that Judge Yau’s assessment of PW1’s testimony was plainly wrong. Judge Yau had the benefit of listening to PW1 and observing his demeanour when he was giving evidence. We do not agree with the 1st applicant’s contention.", "zh-HK": "29.5)本庭認為第一申請人是否對控方第一證人說過這番話與第一項控罪是否可以成立是兩回事。在本案，第一申請人選擇不上庭作供。就算他是會計專業人士，這也不必然表示他沒有對控方第一證人提出有關的建議及最終達成有關的協定。邱法官在這情況下是有權對第一申請人作出對他不利的推斷。控方第一證人是否是一名誠實的證人純粹是一項事實的裁決。他作證長達了十三日之久。第一申請人必須證明邱法官在評核控方第一證人的證供時是有明顯錯誤才可以成功推翻邱法官就控方第一證人的可信性的裁決。邱法官有機會親自聆聽及觀察控方第一證人作供。本庭不認同第一申請人的論點。" } }, { "doc_id": 163, "seg_id": 182, "translation": { "en": "29.6)The 1st applicant also complains that Judge Yau had accepted PW1 as a veracious witness for the above two reasons and, harbouring such first impression, analyzed the evidence in respect of the 2nd to 7th Charges. The 1st applicant submits that Judge Yau should have considered the entire body of evidence in the case before assessing PW1’s veracity and credibility.", "zh-HK": "29.6)第一申請人亦指邱法官基於上述兩點理由接納控方第一證人為誠實的證人，先入為主以此作為起點來分析第二至第七項控罪的證據。第一申請人指邱法官應該全盤考慮案中所有的證據才評估控方第一證人的誠信。" } }, { "doc_id": 163, "seg_id": 183, "translation": { "en": "29.7)In our view, in assessing PW1’s testimony, Judge Yau had in fact applied the criteria suggested by the 1st applicant. The Judge said:", "zh-HK": "29.7)本庭認為其實邱法官已經以第一申請人所聲稱的準則評估控方第一證人的證供。邱法官這樣說：" } }, { "doc_id": 163, "seg_id": 184, "translation": { "en": "“255.As is the case with the 1st Charge, the prosecution relies heavily on PW1’s evidence in seeking to prove the 2nd to 7th Charges. As I have mentioned above, PW1 testified under immunity from prosecution granted by the Secretary for Justice and therefore I have approached his evidence with great caution. In dealing with the 1st Charge, I have found that PW1 was a veracious and reliable witness in relation to that charge. The 2nd to 7th Charges are separate charges. Therefore I have to deal with the credibility and reliability of PW1’s evidence in relation to these charges separately. PW1’s evidence in relation to these charges is, in my view, fair without a trace of exaggeration. Of course, there are a number of points that I have to specifically address.”", "zh-HK": "「255.與第一項控罪的情況一樣，在第二項至第七項控罪中，控方很大程度上倚賴控方第一證人的證供。本席已在上文提及，控方第一證人是在律政司司長給予豁免起訴的情況下作供，本席因此很小心處理他的證供。本席在處理第一項控罪時，已裁定控方第一證人在第一項控罪中是一個誠實和可靠的證人。第二項至第七項控罪為獨立的控罪，本席因此需要獨立地處理控方第一證人在這些控罪中的證供的可信性和可靠性。本席認為控方第一證人在這些控罪中的證供都很中肯和沒有半點誇大其詞。當然，其中有多點本席需要特別處理的。」" } }, { "doc_id": 163, "seg_id": 185, "translation": { "en": "4) Fourth ground of appeal (applicable to the 2nd to 7th Charges)", "zh-HK": "4) 第四項上訴理由(適用於第二至第七項控罪)" } }, { "doc_id": 163, "seg_id": 186, "translation": { "en": "4.1 Single conspiracy/separate conspiracies", "zh-HK": "4.1 單一串謀/獨立串謀" } }, { "doc_id": 163, "seg_id": 187, "translation": { "en": "1)The 1st applicant submits that the 2nd to 7th Charges were founded upon one previous general conversation between the 1st applicant and PW1, but each of those charges was concerned with a separate conspiracy. The prosecution evidence supported only one global/overall conspiracy, and no evidence was adduced to establish a separate and distinct agreement between the 1st applicant and PW1 in respect of each charge. The 1st applicant argues that, at law, the prosecution bore the burden of proving that the 2nd to 7th Charges were all concerned with separate conspiracies, see The Queen v. Hung Hon Yee, CACC 271/1985. In that case, a number of defendants faced three charges which involved different periods, but part of the periods overlapped and each charge of conspiracy involved different defendants. The prosecution made it clear that the second and third counts of conspiracy were alternative to the first count of conspiracy. The ground of appeal was that the trial judge had failed to direct the jury adequately on whether the facts involved one single conspiracy or one or more than one conspiracies. The Court of Appeal accepted this argument. The respondent in the present case does not take issue with the principle laid down in Hung Hon Yee but submits that it does not apply to the present case.", "zh-HK": "1)第一申請人指第二至第七項控罪是建基於第一申請人與控方第一證人在早期的一個概括性對話，但第二至第七項是獨立的串謀控罪。控方的證據只是支持一個單一/整體串謀，但沒有提出證據證明第一申請人和控方第一證人在每一項控罪上有獨立的協議。第一申請人稱聲，在法律上控方是有舉證責任證明第二至第七項控罪皆是獨立串謀，見：The Queen v. Hung Hon Yee CACC 271/1985。在該案，多名被告人面對三項時間不同的控罪，但部分時間是有重疊，每項串謀亦涉及不同的被告人。控方表明第二及第三項「串謀」罪是第一項「串謀」罪的交替罪名。上訴理由是原審法官沒有充分指示陪審團案情是否涉及一個串謀或者有一或多個串謀。上訴法庭同意這個論點。答辯人對 Hung Hon Yee 一案所定的原則沒有異議，但指該案的情況不能適用於本案。" } }, { "doc_id": 163, "seg_id": 188, "translation": { "en": "30.2)We do not think that the decision in Hung Hon Yee is applicable in the present case. The six counts of conspiracy in the present case involved six different banks, and the amounts involved were all different. In our view, even if PW1 and the 1st applicant had all along relied on a previous general conversation in forming this conspiracy agreement, in the end they still had to discuss and agree upon the amount involved in the bogus transaction in respect of each charge, and therefore, each bogus transaction was a separate conspiracy agreement. We do not agree that Judge Yau had made his ruling on the basis of only one single conspiracy.", "zh-HK": "30.2)本庭不認為 Hung Hon Yee 一案的裁決適用於本案。在本案六項「串謀」罪涉及六間不同的銀行，涉及的金額亦每間銀行不同。本庭認為即使控方第一證人和第一申請人一直是基於早期的一個概括對話，而產生此串謀協議，最終他們仍須就每一項控罪所指的虛假交易商討涉案銀碼作出協議，故此，每一宗虛假交易都是一個獨立的串謀協議。本庭不同意邱法官只是以一個單一串謀的方法來作出裁決。" } }, { "doc_id": 163, "seg_id": 189, "translation": { "en": "5) Fifth ground of appeal (applicable to 2nd Charge)", "zh-HK": "5) 第五項上訴理由(適用於控罪二)" } }, { "doc_id": 163, "seg_id": 190, "translation": { "en": "5.1 Whether the agreement was targeted at the bank", "zh-HK": "5.1 協議是否針對銀行" } }, { "doc_id": 163, "seg_id": 191, "translation": { "en": "1)The 1st applicant submits that PW1’s evidence failed to show that the agreement between the 1st applicant and PW1 was targeted at a bank or any type of institution. Judge Yau erred in finding PW1 must have known that the 1st applicant would use the invoices on the bank. Such a finding was at variance with PW1’s evidence which revealed nothing more than speculation on his part: “Should be, broading speaking, not enough money to spend, loan from bank first.” The earliest point of time at which PW1 was indeed aware that the relevant conduct would be carried out on banks was after he had the conversation with the 1st applicant, i.e. after T&K had received from the bank the money referred to in the 2nd Charge. The applicant contends that Judge Yau erred in law in finding that it was not necessary to show that the 1st applicant knew that the invoices were used against the banks and that it sufficed to show that he knew illegal conduct would be involved. The element of the offence charged was conspiracy to defraud the bank, not conspiracy to defraud any person.", "zh-HK": "1)第一申請人指控方第一證人的證供是不能顯示第一申請人和他之間的協議是針對銀行或任何類形的機構。邱法官錯誤裁定控方第一證人一定知道第一申請人會向銀行利用發票，這是與他的證供有所違背，因為他的證供顯示這只是他的揣測「應該係大致上唔夠錢使，同銀行 loan 住先」。控方第一證人真正最早知悉有關行為是用作於銀行是在控方第一證人與第一申請人對話之後，即「千基」從銀行收到第二控罪所指的款項之後，申請人認為邱法官裁定控方第一證人不需要知道發票是針對銀行，而只是知道會涉及非法行為便足夠，是犯了法律錯誤。有關控罪的元素是串謀詐騙銀行，而非串謀詐騙任何人。" } }, { "doc_id": 163, "seg_id": 192, "translation": { "en": "31.2)On this issue, Judge Yau ruled as follows:", "zh-HK": "31.2)邱法官就這議題作出以下的裁決：" } }, { "doc_id": 163, "seg_id": 193, "translation": { "en": "“279.… Undoubtedly, in the 2nd Charge, the T&K invoice numbered TK0307/03[prosecution exhibit P433(2359)] which was used by DDL in applying to the KBC Bank N.V. for the trust receipt loan of $1,001,756.80 was, as PW1 testified, a false invoice.", "zh-HK": "「279.…….毫無疑問，在第二項控罪中，DDL用作向比利時聯合銀行申請1,001,756.80元的信託收據貸款的千基發票編號TK0307/03[控方證物P433(2359)]是正如控方第一證人作供所說是虛假的發票。" } }, { "doc_id": 163, "seg_id": 194, "translation": { "en": "280.Although PW1 has already forgotten if he had issued this false invoice on the basis of the free extra moulds previously produced, PW1 did point out very clearly in his testimony that it was only upon the 1st defendant’s request that he had issued this invoice, because the 1st defendant had said that DDL needed money for cashflow. The 1st defendant said in his closing submission that PW1 agreed that he did not know the false invoice would be used in support of the application to the bank for invoice or trust receipt financing. In response, the prosecution stated that when the 1st defendant requested PW1 to issue the false invoice, what he said was, “not enough money to spend, loan from bank first”.", "zh-HK": "280.雖然控方第一證人已忘記他是否使用之前免費多做了的工模的方法去開出這虛假的發票，但控方第一證人的證供很清楚地指出，他是應第一被告人的要求才開出這虛假發票，因為第一被告人指DDL需要金錢周轉。第一被告人在最後陳詞中指控方第一證人同意他不知道這些虛假發票會用來支持向銀行申請invoice 或trust receipt financing。控方所作出的回應是第一被告人要求控方第一證人開虛假發票時所說的是「唔夠錢使，同銀行loan住先」。" } }, { "doc_id": 163, "seg_id": 195, "translation": { "en": "281．I must point out that PW1’s evidence is in fact this. In PW1’s testimony, after he said that he had issued the false invoice upon the 1st defendant’s request, the prosecuting counsel asked him, “For what did he ask you to issue it? That is to say, firstly, did he tell you what the purpose was?” PW1 answered, “Should be, broadly speaking, not enough money to spend, loan from bank first.” From this answer, it seems that this was what the 1st defendant had said to PW1. However, the way in which PW1 expressed it in court showed that he was not that clear or certain, and he did not clearly indicate whether that was actually what PW1 [sic] had said to him or whether that was what he thought.", "zh-HK": "281．本席必須指出，控方第一證人的證供其實是這樣的。控方第一證人作供時說完是第一被告要求他開出虛假發票後，控方大律師問他: 「佢叫你開嚟做乜嘢? 即係首先佢有冇話畀你聽個作用係乜嘢先?」控方第一證人的答案是:「應該大致上唔夠錢使，同銀行loan住先」。這答案似乎是道出第一被告人是這樣對控方第一證人說的。但控方第一證人在庭上的表達方式表現出他並不太清晰肯定，而且亦並不太清楚表示出控方第一證人的確是這樣告訴他，還是這是他自己的想法。" } }, { "doc_id": 163, "seg_id": 196, "translation": { "en": "282.However, I do not think this is important. Although PW1 did not clearly and expressly point out in his testimony that the 1st defendant had told him he would use the false invoice to apply to the bank for a loan, at the material time PW1 and the 1st defendant had had business dealings for quite a long period of time, and PW1, who was himself also a businessman, must have been aware that the 1st defendant was deliberately using the false invoice to apply to the bank for a loan in order to obtain the money he needed for cashflow. Even if PW1 in fact did not know or had never thought that the 1st defendant would do that, this would not serve to negate any conspiracy between PW1 and the 1st defendant. PW1 certainly knew that it was never lawful to raise funds by using a false invoice no matter what method was adopted and to which institution the application was made. Once PW1 agreed with the 1st defendant to do it, he made himself a party to a conspired illegal deal even though he did not know the details of the entire conspiracy. The illegal deal between them was to raise funds by using a false invoice.”", "zh-HK": "282.但本席認為這一點其實不重要。雖然控方第一證人在證供中沒有清晰、明確地指出第一被告人告訴他他會以虛假發票向銀行申請貸款，但案發時控方第一證人及第一被告人已有生意來往一段頗長的時間，而控方第一證人自己也是生意人，他一定知道第一被告人故意借虛假發票向銀行申請貸款來獲得他所需要的資金周轉。就算控方第一證人真的不知道，或沒有概念第一被告人會這樣做，這也不會令到控方第一證人與第一被告人之間沒有串謀。控方第一證人一定知道用假的發票去籌集資金，無論用甚麼方法，無論向甚麼機構申請，一定不會是合法的。控方第一證人答應第一被告人去做，就算他不知道整個串謀的詳情，他已經是一個串謀非法勾當的一份子。而他們之間的非法勾當就是要以虛假的發票去籌集資金。」" } }, { "doc_id": 163, "seg_id": 197, "translation": { "en": "31.3)With respect, we do not agree with the 1st applicant’s argument. Judge Yau found — and this is a finding of fact — that it was only upon the 1st applicant’s request that PW1 had issued the false invoice. Even though it was not clearly indicated at the time of formation of the agreement that the 1st applicant would use the false invoice to obtain a loan from the bank, Judge Yau correctly found, on the basis that the two parties had had business dealings for quite a long period of time and PW1 himself was also a businessman, that he must have been aware that the 1st defendant would use the false invoice to apply to the bank for a loan so as to obtain funds for cashflow. This issue should be determined by applying common sense.", "zh-HK": "31.3)本庭不認同第一申請人所持的論點。邱法官裁定控方第一證人是應第一申請人的要求才發出虛假發票，這是一項事實的裁斷。就算雙方在達到協議時沒有清楚說明第一申請人會利用這些虛假發票向銀行取得貸款，但邱法官以雙方已經有生意往來一段頗長的時間，而控方第一證人本身也是生意人，他一定知道第一申請人是會利用這些虛假發票向銀行申請貸款獲得資金周轉的裁決是正確的。這議題應該是以常理來作出裁決。" } }, { "doc_id": 163, "seg_id": 198, "translation": { "en": "31.4)In any event, the 1st applicant’s defence was that the invoice in question was not false and was supported by a genuine commercial transaction. This being the case, it was not in issue whether there was clear indication at the time of the agreement that the bank was targeted at.", "zh-HK": "31.4)無論如何，第一申請人的答辯理由是有關的發票並非是虛假的發票，而是有實質商業交易支持的。故此，雙方協議時是否明顯地說明針對銀行並非是本案的爭議點。" } }, { "doc_id": 163, "seg_id": 199, "translation": { "en": "31.5)As the Court of Final Appeal pointed out in Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386, conspiracy to defraud was constituted by being a party to an agreement to use dishonest means:", "zh-HK": "31.5)根據終審法院在 Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386 一案指出，構成串謀詐騙罪行的元素是身為協議一份子，而該協議是使用不誠實手段：" } }, { "doc_id": 163, "seg_id": 200, "translation": { "en": "(1) for the purpose of causing economic loss to, or putting at risk the economic interests of, another; or", "zh-HK": "(1) 以其令另一人蒙受經濟損失或令該人的經濟利益承受風險；或" } }, { "doc_id": 163, "seg_id": 201, "translation": { "en": "(2)with the realization that the use of those means might cause such loss or put such interests at risk.", "zh-HK": "(2)同時知悉該等手段可能導致上述經濟損失或令上述利益承受風險。" } }, { "doc_id": 163, "seg_id": 202, "translation": { "en": "31.6)PW1’s understanding of the 1st applicant’s request to provide false invoices was neither absurd nor unreasonable. It must have been the 1st applicant’s intention to make use of the false invoices obtained to deceive third parties. Viewing the evidence in its entirety, such third parties were obviously the banks or financial institutions which accepted the false invoices and thereby granted loans. This was the effect of the relevant commercial documents. This conclusion could not be clearer. Therefore, the suggestion that the agreements concerned were not targeted at the banks is nitpicking.", "zh-HK": "31.6)第一控方證人對第一申請人要求他提供虛假發票的理解並非是荒誕、不合理的。第一申請人獲得這些虛假發票必然是想利用這些虛假文件欺騙第三者。從本案整體證供來看，明顯地這個第三者就是接納這些虛假發票，從而給予貸款的銀行或財政機構。這是有關商業文件的作用。這個結論是最清楚不過的。故此，有關協議並非是針對銀行的論點是吹毛求疵的說法。" } }, { "doc_id": 163, "seg_id": 203, "translation": { "en": "6) Sixth ground of appeal (applicable to 8th Charge)", "zh-HK": "6) 第六項上訴理由(適用於控罪八)" } }, { "doc_id": 163, "seg_id": 204, "translation": { "en": "6.1 Background to the 8th Charge", "zh-HK": "6.1 控罪八的背景" } }, { "doc_id": 163, "seg_id": 205, "translation": { "en": "To make it easier to understand this ground of appeal, we will briefly recount the evidence in respect of the 8th Charge before dealing with the ground of appeal itself.", "zh-HK": "為了易於了解這上訴理由，本庭先簡述控罪八的證據才處理這個上訴理由。" } }, { "doc_id": 163, "seg_id": 206, "translation": { "en": "6.1(1) PW9", "zh-HK": "6.1(1) 控方第九證人" } }, { "doc_id": 163, "seg_id": 207, "translation": { "en": "32.1)PW9 gave evidence under immunity from prosecution. He said that since 1996, MHM had had business dealings with DDL and Briga which was established subsequently. He discussed with the 2nd applicant about the business dealings with both Briga and DDL.", "zh-HK": "32.1)控方第九證人在獲豁免起訴的情況下作供。他指從 1996 年開始，MHM 便與 DDL 及後來成立的 Briga 有生意往來，無論是 Briga 或 DDL，他都是與第二申請人傾談有關的生意。" } }, { "doc_id": 163, "seg_id": 208, "translation": { "en": "32.2)In early 2004, the 2nd applicant requested him to place an order with DDL for goods to the value of $10,000,000, i.e. the “special order”. He did not know why the 2nd applicant made such request, but he thought that an order for goods of such value was unrealistic and excessive. On 12 January 2004, he sent an email to the 2nd applicant specifically addressing the matter (Exhibit P39). Exhibit P39 reads as follows:", "zh-HK": "32.2)於 2004 年初，第二申請人要求他向 DDL 訂購一千萬元的貨品，即「特別訂單」。他不知道第二申請人因何要作出如此要求，但他認為一千萬元的貨品是不切實際及太多了。為此他特別於 2004 年 1 月 12 日發了一個電郵給第二申請人(證物 P39)。證物 P39 的內容是" } }, { "doc_id": 163, "seg_id": 209, "translation": { "en": "“Pat [i.e. the 2nd applicant],", "zh-HK": "‘Pat [即第二申請人]," } }, { "doc_id": 163, "seg_id": 210, "translation": { "en": "Lewis [i.e. PW9]”", "zh-HK": "Lewis [即控方第九證人]’" } }, { "doc_id": 163, "seg_id": 211, "translation": { "en": "32.3)In gist, PW9 indicated in the email that MHM could not afford the 10% deposit of $10,000,000 and he put forward the conditions for early placement of the purchase order for $10,000,000 worth of goods, including that there was no need to assume any risk for the purchase order, that is to say, no requirement for a deposit and no liability for failure to have all goods delivered within one year. PW9 testified that the 2nd applicant had accepted this special condition in the email.", "zh-HK": "32.3)控方第九證人在電郵中表示 MHM 付不起一千萬元的 10% 訂金，並且開出提早發出一千萬元貨物訂單的條件，這包括不須承擔這訂單的風險，即不用付訂金及就算一年內未能把所有貨物提取也無須負上責任。控方第九證人作供時指第二申請人答應了他在電郵中這一個特別條件。" } }, { "doc_id": 163, "seg_id": 212, "translation": { "en": "32.4)It can be seen from P39 that, while forwarding this email to the 1st applicant, the 2nd applicant simply referred to it as “This is from MHM” without making any elaboration.", "zh-HK": "32.4)從證物 P39 看到第二申請人將此電郵轉寄給第一申請人只是簡單地寫成 ‘This is from MHM’。完全不用加上任何解釋。" } }, { "doc_id": 163, "seg_id": 213, "translation": { "en": "32.5)Afterwards, on 11 February 2004, PW9 sent an email to the 2nd applicant (Exhibit P49), in which PW9 indicated clearly that although he sincerely hoped that the 2nd applicant’s Daka Designs would successfully get listed, he also hoped he could stay free from any trouble. PW9 indicated that, for the sake of enabling the 2nd applicant to meet the turnover target of the year and easing his financial burden, PW9 did not mind issuing purchase orders in advance or even making other payment arrangements so as to support the 2nd applicant. However, PW9 also put forward some conditions, suggesting that the 2nd applicant should sign an exclusive distributorship agreement with PW9 and disclose it in the prospectus of Daka Designs. PW9 also said that they would make their greatest efforts to sell the goods concerned but it did not involve any obligation or commitment.", "zh-HK": "32.5)其後控方第九證人在 2004 年 2 月 11 日發出一封電郵給第二申請人(證物 P49)。在這電郵中控方第九證人清楚表示他雖然衷心祝福第二申請人的 Daka Designs 能成功上市但他亦希望自己不被牽涉入任何麻煩中。控方第九證人表示為了第二申請人達到年度的生意額及舒緩第二申請人的財政，他不介意提早開出購貨單或甚至以其他付款方式來支持第二申請人。但控方第九證人亦開出條件認為第二申請人應與控方第九證人簽署獨家分銷協議，並將之披露在 Daka Designs 上市的招股書中。控方第九證人亦指他們會盡最大努力將有關貨物銷售，但當中不存在任何責任及承諾。" } }, { "doc_id": 163, "seg_id": 214, "translation": { "en": "32.6)In respect of this “special order”, PW9 said that he signed the purchase order for the $10,000,000 worth of goods with a view to helping a friend with whom he had an amicable business relationship and upon the understanding that there would be no need to make a commitment to buy those goods. He said that half of the goods in the purchase order were beyond reasonable limit because he was by no means sure if it was possible to sell that many goods.", "zh-HK": "32.6)就這「特別訂單」，控方第九證人指他簽署這一千萬元的購貨單是因為他本著生意上的交情及加上對這些貨不用承諾購買的情況下去幫助朋友。他指購貨單上其中有一半的貨物是不合理的，因為他根本不知道能否賣出這麼多貨物。" } }, { "doc_id": 163, "seg_id": 215, "translation": { "en": "32.7)Exhibits P56-P60 are purchase orders issued by MHM, all dated 20 January 2004. In his testimony, PW9 said that Exhibits P56-P60 were different versions of the purchase order drafted for this “special order”, the contents of which (including descriptions, quantities and prices) were set out as per the 2nd applicant’s request after PW9 contacted him. The price of goods under the last purchase order [P60] was approximately $8,900,000.", "zh-HK": "32.7)證物 P56 - P60，日期均為 2004 年 1 月 20 日由 MHM 開出的購貨單。控方第九證人在作供時指證物 P56 - P60 就是為這「特別訂單」而草擬的不同版本的購貨單，內容(包括產品類別數量及價錢)是他與第二申請人接觸後應第二申請人要求下所列出的。最後一張購貨單 [P60] 的貨款是約 $8,900,000。" } }, { "doc_id": 163, "seg_id": 216, "translation": { "en": "32.8)Exhibit P40 is a proforma invoice issued by Briga to MHM, dated 17 February 2004 and bearing the chop of MHM. Prosecution Exhibit P40 clearly shows that, for product LG22, the unit price was $85.8 and the total quantity ordered was 12,666, and hence this product involved an amount of $1,086,742.80; and for product FT66, the unit price as set out in P40 was $936, and the quantity ordered was 7,000, and in other words, the total amount involved was $6,552,000. These two new products involved a total amount of $7,638,742.80, which already accounted for 73% of the amount payable for the goods in the order.", "zh-HK": "32.8)證物 P40 是一份 Briga 發給 MHM 日期為 2004 年 2 月 17 日的「預開發票」 (proforma invoice) 上有 MHM 的蓋印。在控方證物 P40 中可以清楚見到 LG22 型產品單貨價為 $85.8，而總數訂貨量是 12,666，因此，此貨品所牽涉的金額是 $1,086,742.80；FT66 型產品在證物 P40 中所列的單貨價為 $936，訂購數量為 7,000，換言之總金額為 $6,552,000。單看這兩件新產品所佔訂單的總額已達至 $7,638,742.80，佔訂單的七成三貨款。" } }, { "doc_id": 163, "seg_id": 217, "translation": { "en": "32.9)PW9 did not think that the goods on this proforma invoice belonged to the inventory of MHM, nor did he think that MHM was required to make payment to settle this proforma invoice. In particular, PW9 pointed out that the price of the FT66 “mosquito trap” product as set out in P40, i.e. $936, was fixed by the 2nd applicant. PW9 said he would never purchase this item at a unit price of $936 because this would render it impossible to make any profit.", "zh-HK": "32.9)控方第九證人不認為這「預開發票」上的貨物是 MHM 的存貨，及不認為 MHM 須支付「預開發票」上的貨款。控方第九證人特別指出在證物 P40 內所指 FT66 型號的產品，即「驅蚊器」為 $936，這價錢是第二申請人定的。控方第九證人說他絕對不會以 $936 之單貨價購入此貨物，因為這是絕對沒有利潤的。" } }, { "doc_id": 163, "seg_id": 218, "translation": { "en": "32.10)Exhibits P42, P43 and P44 [BIV0403003, BIV0403004 and BIV0403005] are three commercial invoices issued by Briga to MHM. Each invoice bore the chop of MHM and the signature of PW5 (the general manager of Briga).", "zh-HK": "32.10)證物 P42，P43 及 P44 [BIV0403003、BIV0403004 以及 BIV0403005]是三張由 Briga 發出給 MHM 的商業發票，每一張均有 MHM 的蓋印以及控方第五證人(Briga 的總經理) 的簽署。" } }, { "doc_id": 163, "seg_id": 219, "translation": { "en": "32.11)PW5, while testifying in court, also recognized that the three commercial invoices had been signed by him. However, according to his evidence, purchase orders of MHM generally involved amounts ranging from a few thousand dollars to hundreds of thousands of dollars, and this “special order”’ was the first MHM order that he had ever seen which involved more than 10 million dollars.", "zh-HK": "32.11)控方第五證人作供時亦在庭上認出三張商業發票是他簽署的。但根據他的證供 MHM 的購貨單金額一般為數千至數十萬元，這次「特別訂單」是他首次看見 MHM 有一千多萬元的購貨。" } }, { "doc_id": 163, "seg_id": 220, "translation": { "en": "32.12)PW9 recognized that the MHM chop on these three commercial invoices was affixed upon the request of DDL. He said that MHM had never paid for the goods stated in these invoices and had not taken delivery of them, because MHM simply did not need so many goods.", "zh-HK": "32.12)控方第九證人認出這三張商業發票的 MHM 蓋印是應 DDL 的要求蓋上的。他指這三張發票上的貨物，MHM 根本沒有支付貨款，亦沒有收過貨，因為 MHM 根本不需要這麼多的貨物。" } }, { "doc_id": 163, "seg_id": 221, "translation": { "en": "32.13)Exhibits P45, P46 and P47 (dated 23, 29 and 31 March 2004 respectively) were local delivery notes corresponding to Exhibits P42, P43 and P44 respectively, which apparently indicated that the goods of these three commercial invoices had been delivered to MHM. PW9 said that he signed these three delivery notes only upon the 2nd applicant’s request and that MHM had in fact never received the goods concerned.", "zh-HK": "32.13)證物 P45、P46 及 P47 (日期分別為 2004 年 3 月 23 日、2004 年 3 月 29 日及 2004 年 3 月 31 日)是證物 P42、 P43 及 P44 的相關送貨單 (local delivery note)，表示這 3張商業發票的貨物已送達 MHM。控方第九證人說他是在第二申請人的要求下才簽署這三張送貨單，但 MHM 從來沒有收過有關的貨物。" } }, { "doc_id": 163, "seg_id": 222, "translation": { "en": "32.14)Exhibit P64 is a “goods receipt acknowledgement” issued by Briga to MHM, dated 31 March 2004 and bearing PW9’s signature and the chop of MHM. This “goods receipt acknowledgement” listed the numbers of four invoices, including BIV0403003, BIV0403004 and BIV0403005 (i.e. the numbers of the three commercial invoices marked P42, P43 and P44), and a fourth one numbered BIV0403001.", "zh-HK": "32.14)證物 P64 是一張 Briga 發給 MHM 的「收貨確認書」(goods receipt acknowledgement)，日期為 2004 年 3 月 31 日，內有控方第九證人的簽署及 MHM 的蓋印。這「收貨確認書」列出了 4 個發票編號，其中包括證物 P42、 P43 及 P44三張商業發票編號 BIV0403003、BIV0403004 以及 BIV0403005，另外一張發票編號是 BIV0403001。" } }, { "doc_id": 163, "seg_id": 223, "translation": { "en": "32.15)PW9 said that before 31 March 2004 MHM had already received the goods to which BIV0403001 related. The goods to which the other invoice numbers related had never been received, seen or inspected.", "zh-HK": "32.15)控方第九證人指在 2004 年 3 月 31 日前，MHM 已收過發票編號 BIV0403001 的貨品。其他編號的貨物則沒有收過，也沒有見過和驗過貨。" } }, { "doc_id": 163, "seg_id": 224, "translation": { "en": "32.16)PW5 also explained in his testimony the use of the “goods receipt acknowledgement”. He said that, after the goods ordered by a customer were produced, if the customer did not take the goods for the time being, the company might issue a “goods receipt acknowledgement” for the customer to sign, and immediately after it had been signed, the company would issue an invoice requesting the customer to make payment and would not wait until the customer actually took the goods.", "zh-HK": "32.16)控方第五證人作供時，亦解釋了「收貨確認書」的用途。他說貨物完成後，如客戶暫不提取貨物時，公司可以將「收 貨確認書」給客戶簽署，於簽署後公司就會即時開出發票要求客戶付款，而不會於客戶正式提貨時才這樣做。" } }, { "doc_id": 163, "seg_id": 225, "translation": { "en": "6.1(2) Reward of $100,000 given by the 1st applicant", "zh-HK": "6.1(2) 第一申請人給予 $100,000 的獎勵" } }, { "doc_id": 163, "seg_id": 226, "translation": { "en": "32.17)PW9 said that throughout the whole incident, he was not required to commit to take delivery of the goods but had to sign documents such as purchase orders, proforma invoices, “goods receipt acknowledgements” and local delivery notes, which was causing him a lot of trouble. Therefore, the 1st or 2nd applicant had promised to give him $100,000 as reward upon successfully listing.", "zh-HK": "32.17)控方第九證人說在整件事件中，他不用承諾一定要提貨，但卻要簽署購貨單、預開發票、「收貨確認書」及送貨單等文件，帶給他很多麻煩，所以第一申請人或第二申請人承諾成功上市後，給他 $100,000 作奬勵。" } }, { "doc_id": 163, "seg_id": 227, "translation": { "en": "32.18)On 9 August 2004, a sum of $100,000 was transferred from the joint account of PW1 and PW2 with the HSBC to the joint account of PW9 and his wife with HSBC. PW9 said that this was the $100,000 reward that the 2nd applicant had given him. According PW1’s testimony, it was upon the 1st applicant’s instruction that he transferred the sum to PW9’s account.", "zh-HK": "32.18)2004 年 8 月 9 日一筆 $100,000 的款項從控方第一證人及控方第二證人的滙豐銀行聯名戶口轉賬到控方第九證人和其妻子的滙豐銀行聯名戶口。控方第九證人指這是第二申請人給他的 $100,000 奬勵。根據控方第一證人的證供，他是依照第一申請人的指示將該款項轉到控方第九證人的戶口。" } }, { "doc_id": 163, "seg_id": 228, "translation": { "en": "6.1(3) Payment by the 2nd applicant of a deposit of $2,000,000 for the “special order”", "zh-HK": "6.1(3) 第二申請人支付「特別訂單」的 $2,000,000 訂金" } }, { "doc_id": 163, "seg_id": 229, "translation": { "en": "32.19)The bank record showed that on 2 March 2004 the 2nd applicant transferred $2,000,000 to PW9’s account. On 5 March 2004, PW9 signed a cheque issued by MHM to Briga for the amount of $2,000,000. PW9 said that this cheque was for payment of deposit for the $10,000,000 worth of goods that the 2nd applicant had requested MHM to purchase in early 2004. The 2nd applicant had instructed PW9 to transfer the $2,000,000 to Briga, which was to be regarded as payment of the deposit for the goods.", "zh-HK": "32.19)銀行紀錄顯示，於 2004 年 3 月 2 日第二申請人將$2,000,000 轉到控方第九證人戶口。於 2004 年 3 月 5 日控方第九證人簽署一張由 MHM 開給 Briga 的支票，金額為 $2,000,000。控方第九證人說這張支票是作為 2004 年初第二申請人要求 MHM 購買 $10,000,000 貨物的訂金。第二申請人指示控方第九證人將 $2,000,000 轉去 Briga 當是支付貨物的訂金。" } }, { "doc_id": 163, "seg_id": 230, "translation": { "en": "32.20)PW11 (i.e. Miss Wong Yuet-ying, Judy), the accounts manageress of DDL, testified under immunity from prosecution. PW11 said that as early as 29 February 2004, the 1st applicant had already sent an email to her and other DDL staff telling them that within one week MHM would pay $2,000,000 as deposit for the “special order”.", "zh-HK": "32.20)控方第十一證人(即黃月影小姐)是 DDL 的會計經理，她在豁免起訴的情況下作供。控方第十一證人說早於 2004 年 2 月 29 日第一申請人已發出電郵給她及其他 DDL 的員工，指 MHM 將會於一週內支付 $2,000,000 作為「特別訂單」的訂金。" } }, { "doc_id": 163, "seg_id": 231, "translation": { "en": "32.21)Ho Tak-ling (“PW7”), an accounting staff member of DDL, said that he received a cheque for this amount on 5 March 2004, and as he did not yet have the three commercial invoices for the “special order”, he treated this sum of $2,000,000 as a temporary deposit.", "zh-HK": "32.21)DDL 的會計員何德領(‘控方第七證人’)指他於 2004 年 3 月 5 日收到這筆款項的支票，由於當時仍沒有「特別訂單」的三張商業發票，所以他將這 $2,000,000 當作暫存款項處理。" } }, { "doc_id": 163, "seg_id": 232, "translation": { "en": "6.1(4) Payment by the 2nd applicant of $1,000,000 for the goods under the “special order”", "zh-HK": "6.1(4) 第二申請人支付「特別訂單」 $1,000,000 的貨款" } }, { "doc_id": 163, "seg_id": 233, "translation": { "en": "32.22)On 20 July 2004, the 2nd applicant deposited $1,000,000 into PW9’s account. On 23 July 2004, PW9 signed a cheque issued by MHM to Briga for the amount of $1,000,000. PW9 said that this sum of $1,000,000 was given to him by the 2nd applicant for the purpose of reducing the amount payable by MHM to Briga for the goods.", "zh-HK": "32.22)2004 年 7 月 20 日，第二申請人將 $1,000,000 存入控方第九證人的戶口。2004 年 7 月 23 日，控方第九證人簽署一張由 MHM 開給 Briga 的支票，金額為 $1,000,000。控方第九證人指這 $1,000,000 是第二申請人給他的，用意是要減低 MHM 欠 Briga 的貨款。" } }, { "doc_id": 163, "seg_id": 234, "translation": { "en": "6.1(5) Payment by the 1st and 2nd applicants for the goods under the “special order”", "zh-HK": "6.1(5) 第一及第二申請人支付「特別訂單」貨款" } }, { "doc_id": 163, "seg_id": 235, "translation": { "en": "32.23)On 18 March 2005, the 2nd applicant transferred $2,681,491 to PW9’s account. On the same day, the 1st applicant transferred $2,001,893 and $850,000 to PW9’s account. Eventually on 22 March 2005, PW9 transferred $2,960,530 to the account of DDL. On 22 March 2005, PW9 $2,572,854 transferred back to the 2nd applicant’s account.", "zh-HK": "32.23)2005 年 3 月 18 日第二申請人將 $2,681,491 轉到控方第九證人的戶口。於同日第一申請人亦將 $2,001,893 及 $850,000 轉到控方第九證人的戶口。最終於 2005 年 3 月 22 日，控方第九證人將 $2,960,530 轉到 DDL 的戶口。於 2005 年 3 月 22 日控方第九證人將 $2,572,854 轉回到第二申請人的戶口。" } }, { "doc_id": 163, "seg_id": 236, "translation": { "en": "32.24)Exhibit P107 included four emails sent by the 2nd applicant to PW9 on 18 March 2005, telling PW9 that he would deposit HK$2,681,491 and HK$2,851,893 into PW9’s bank accounts and instructing PW9 to remit US$329,853 and HK$2,960,530 to Mayhem and Daka respectively. PW9 said that after receiving the sums, he did not make a remittance to Mayhem in the end but, as per the 2nd applicant’s instruction, he did return the money to the 2nd applicant by cheque on 22 March 2005.", "zh-HK": "32.24)證物 P107 其中四個電郵是第二申請人於 2005 年 3 月 18 日發給控方第九證人的，告訴控方第九證人他會將 HK$2,681,491 及 HK$2,851,893 存進控方第九證人的銀行戶口及吩咐控方第九證人把 US$329,853 及 HK$2,960,530 分別滙到 Mayhem 及 Daka。控方第九證人說，他收到這些錢後，最終沒有把錢滙到 Mayhem，而是按第二申請人的吩咐，於 2005 年 3 月 22 日以支票把錢交回第二申請人。" } }, { "doc_id": 163, "seg_id": 237, "translation": { "en": "32.25)PW7 said that he had made use of this sum of money to set off the payment for goods under the three invoices marked P42 to P44.", "zh-HK": "32.25)就這筆錢控方第七證人說他用作扣減證物 P42 至 P44 這三張發票的貨款。" } }, { "doc_id": 163, "seg_id": 238, "translation": { "en": "6.1.(6) Internal arrangements at DDL", "zh-HK": "6.1.(6) DDL 內部安排" } }, { "doc_id": 163, "seg_id": 239, "translation": { "en": "32.26)PW11 was mainly responsible for the accounts of DDL, Kentat, DIL and DML. During her employment, the bosses of DDL were the 1st applicant, the 2nd applicant and the 1st applicant’s wife. The accounting staff at Daka Designs, including PW11, very often received instructions directly from the 1st applicant. When the company did not have a financial controller, PW11 even directly reported to and was accountable to the 1st applicant. The 1st applicant also personally attended meetings of the company in respect of accounting matters.", "zh-HK": "32.26)控方第十一證人主要的工作是負責 DDL、「建達」、DIL 及 DML 的賬目。她任職期間，DDL 的老闆是第一申請人、第二申請人及第一申請人的太太。Daka Designs 中處理會計工作的員工，包括控方第十一證人，很多時都會直接從第一申請人接受指示，當公司沒有財務總監時，控方第十一證人更直接向第一申請人報告和負責。第一申請人也親自出席公司與會計有關的會議。" } }, { "doc_id": 163, "seg_id": 240, "translation": { "en": "32.27)PW11 said that the 3rd defendant had told her that the goods under this “special order” would be sent out by 31 March 2004 and would therefore be recorded in the accounts for the year 2004 which ended on 31 March 2004. Furthermore, at a meeting held in March in relation to stocktaking, the 3rd defendant disclosed that the auditors would carry out stocktaking for Daka Designs in April 2004 and that the goods under the “special order” would be sold to the customer before 31 March 2004. He requested the relevant staff to input the information into the ATL computer system of Daka Designs to ensure that the sales under the “special order” would be completed by 31 March 2004.", "zh-HK": "32.27)控方第十一證人說，第三被告人告訴她這「特別訂單」的貨物會於 2004 年 3 月 31 日前出貨，因此會記於截至 2004 年 3 月 31 日的 2004 年年度的帳目內。第三被告人亦於 2004 年 3 月份的一次有關盤點的會議中透露核數師會於 2004 年 4 月份為 Daka Designs 進行盤點及指出「特別訂單」的貨物會於 2004 年 3 月 31 日前賣給客人。他要求有關的員工把資料輸入 Daka Designs 的 ATL 電腦系統中，確保「特別訂單」於 2004 年 3 月 31 日前完成銷售。" } }, { "doc_id": 163, "seg_id": 241, "translation": { "en": "32.28)In April 2004, the auditors RSM Nelson Wheeler went to DDL to carry out auditing work. As instructed by the 3rd defendant, PW11 had the finished products and semi-finished materials under the “special order” moved from DML to the warehouse of T&K (PW1) before the auditors carried out the stocktaking exercise on 8 April 2004. Afterwards, the 3rd defendant also reminded PW11 to prepare a “goods receipt acknowledgement” for the goods under the “special order”, have it backdated to 31 March 2004 and give it to RSM Nelson Wheeler (Exhibit P64). In respect of P64, PW11’s understanding was that the goods under the “special order” would be kept in the warehouse and delivered only when the customer asked for the goods.", "zh-HK": "32.28)於 2004 年 4 月，核數師 RSM Nelson Wheeler 到 DDL 核數。控方第十一證人根據第三被告人的指示將「特別訂單」的物料製成品及半製成品在 2004 年 4 月 8 日核數師進行盤點前由 DML 搬到「千基」(控方第一證人) 的貨倉。第三被告人其後亦提醒控方第十一證人為「特別訂單」的貨物準備了一張「收貨確認書」，並將之日期追溯到 2004 年 3 月 31 日，交給 RSM Nelson Wheeler (證物 P64)。就 P64 而言，控方第十一證人的理解是「特別訂單」的貨物會存放於貨倉內，當客人要貨時才付貨。" } }, { "doc_id": 163, "seg_id": 242, "translation": { "en": "6.1(7) Taking of delivery in reality", "zh-HK": "6.1(7) 真實的提貨" } }, { "doc_id": 163, "seg_id": 243, "translation": { "en": "32.29)PW11 said that the goods under the “special order” were delivered to MHM in batches after 31 March 2004. However, as the goods had already been recorded as sold in the ATL system of Daka Designs, such delivery was, from an accounting perspective, no longer a sale but delivery of goods in batches. For these batches of goods, PW11 said that an alphabet was added to the end of the numbers of the commercial invoices to make them additional commercial invoices issued at the time of delivery. The numbers went from BIV0403003-5(A), BIV0403003-5(B) all the way to BIV0403003-5(N), and these invoices were called “A, B, C, D …” invoices for short. The 3rd defendant also instructed PW11 that the money used by MHM to settle the “A, B, C, D …” invoices was to be used to reduce the amount payable for the goods under the “special order”.", "zh-HK": "32.29)控方第十一證人說，「特別訂單」的貨物於 2004 年 3 月 31 日之後分批出貨到 MHM。但由於根據 Daka Designs 電腦的 ATL 系統中紀錄該貨物已銷售，因此就會計立場來說出貨已不再是銷售而是分段出貨。就這些分段貨而言，控方第十一證人指他們在商業發票編號後加上一個英文字母，作為出貨時加開出的商業發票。其編號由BIV0403003-5(A)、 BIV0403003-5(B) 一直至到 BIV0403003-5(N)，這些發票被簡稱為「A,B,C,D….」發票單。第三被告人亦指示控方第十一證人說 MHM 用來支付「A,B,C,D….」發票單的款項用以扣減「特別訂單」的貨款。" } }, { "doc_id": 163, "seg_id": 244, "translation": { "en": "32.30)PW9 also confirmed that between June 2004 and November 2005 he took delivery of the goods set out in a total of 14 commercial invoices bearing commercial invoice numbers from BIV0403003-5(A) to BIV0403003-5(N), together with BIV0405067(A) and BIV0405067(B). The delivery notes also bore the company chop of MHM which was affixed upon receiving the goods. PW9 also followed the normal procedures and paid with cheques, the records of which could be found in MHM’s books. Moreover, the practice adopted for settlement of BIV0403003-5(A) to (G) was no different from that for previous normal transactions: the number of the corresponding commercial invoice to be settled was written on the reverse side of each cheque; each commercial invoice was settled by way of three cheques issued respectively for 40%, 30% and 30% of the stated price of the goods; and the dates of the cheques differed by one month.", "zh-HK": "32.30)控方第九證人亦確認，在 2004 年 6 月至 2005 年11 月，他一共提取了 14 張商業發票內的貨物，其商業發票編號由 BIV0403003-5(A) 至 BIV0403003-5(N) 及 BIV0405067(A) 和 BIV0405067(B)。這些送貨單都有 MHM 收貨時蓋上的公司印章。控方第九證人亦依正常程序以支票來付款，其紀錄可在 MHM 的帳目內找到。而且和 BIV0403003-5(A) 至 (G) 跟以往的正常交易一樣，每張支票背後都寫上所支付的商業發票編號，每一張商業發票都以三張支票支付，分別是貨款的四成、三成及三成，每張支票日期都相差一 個月。" } }, { "doc_id": 163, "seg_id": 245, "translation": { "en": "6.1(8) Refund arrangements", "zh-HK": "6.1(8) 退款安排" } }, { "doc_id": 163, "seg_id": 246, "translation": { "en": "32.31)In the end, as PW9 and the 1st and 2nd applicants all wanted to resolve the problems with the goods and the accounts in relation to P42, P43 and P44, it was decided that on the face of the accounts, the goods that MHM had not taken would be returned and DDL would be requested to make a refund. As MHM had not actually taken those goods, their return was done on paper only. After deducting the amount payable by MHM for other goods, DDL had to refund $3,685,750.12 to MHM.", "zh-HK": "32.31)最終，因為控方第九證人和第一申請人及第二申請人都希望解決有關控方證物 P42、P43 及 P44 的貨物和帳目問題，因此決定在帳面上退回 MHM 沒有收的貨物並要求 DDL 退款。由於 MHM 根本沒有真正收過這些貨，所以只是文件上退貨。在扣除 MHM 要支付的其他貨款後，DDL 要退回 $3,685,750.12 給 MHM。" } }, { "doc_id": 163, "seg_id": 247, "translation": { "en": "32.32)PW9 said that, in respect of the goods to be returned, MHM had never taken delivery or made any payment, and there was no entry for those goods in MHM’s accounts. Therefore, in accepting a refund from DDL and returning the money concerned to the 1st and 2nd applicants, problems would arise in MHM’s accounts. With a view to resolving this problem, PW9 and the 1st and 2nd applicants discussed via email (Exhibit P118) how to deal with this matter.", "zh-HK": "32.32)控方第九證人指這些要退回的貨，MHM 根本從來沒有提貨，亦沒有支付過貨款，而 MHM 的帳目上亦沒有將這些貨入賬。因此在接受 DDL 的退款及將有款項退還予第一及第二申請人時，在 MHM 的帳目上會出現問題。為了解決此問題，控方第九證人和第一及第二申請人之間用電郵形式(證物 P118)商討如何處理這事。" } }, { "doc_id": 163, "seg_id": 248, "translation": { "en": "32.33)Exhibit P118 was an email sent by PW9 to the 2nd applicant. Since the money paid to Briga by PW9 for the goods did not come from himself or MHM, and there was no such record in MHM’s accounts, they had to discuss how Briga was to refund the money to MHM and how PW9 was to return the money to the 1st and 2nd applicants. PW9 stated in the email that the 1st applicant had suggested having the money returned to PW9 himself. PW9 also suggested in the email a method of returning the refunded sum to the 1st and 2nd applicants. The 2nd applicant forwarded PW9’s email to the 1st applicant in a way similar to how P39 was forwarded by the 2nd applicant to the 1st applicant, i.e. the 2nd applicant simply put down “send by Lewis” as the subject without adding anything to the covering email.", "zh-HK": "32.33)證物 P118 是一個控方第九證人發給第二申請人的電郵，因為控方第九證人付給 Briga 的貨款並非來自他自己或 MHM，及 MHM 的賬目沒有這些紀錄，因此他們要商討 Briga 如何把貨款退給 MHM，及控方第九證人如何把錢歸還給第一及第二申請人。控方第九證人在電郵中指第一申請人作出了一個建議，就是把錢歸還給控方第九證人本人。控方第九證人亦在電郵中提出一個如何把這些退款退還給第一及第二申請人的方法。第二申請人把控方第九證人的電郵轉發給第一申請人，情況與第二申請人轉發證物 P39 予第一申請人一樣；即在電郵中第二申請人完全沒有加上一個字，及在電郵標題中又只簡單地寫‘send by Lewis’。" } }, { "doc_id": 163, "seg_id": 249, "translation": { "en": "32.34)Eventually, in order to avoid being suspected, PW9 remitted the money to his bank account in the UK, kept it there for one to two months, and then remitted half of the amount to the account of the 1st applicant’s daughter in the UK in accordance with the 1st applicant’s instruction. Subsequently, after some twists and turns, the other half of the money was transferred to the 2nd applicant’s account with the Citibank.", "zh-HK": "32.34)最終控方第九證人為了不想惹人懷疑，把錢匯到他的英國銀行的戶口及把錢留在戶口一至兩個月，然後才根據第一申請人的指示把一半款項匯給第一申請人的女兒在英國的戶口。其後，幾經轉折最終另一半款項亦被轉到第二申請人在花旗銀行的戶口。" } }, { "doc_id": 163, "seg_id": 250, "translation": { "en": "6.1(9) KPMG questioned PW9", "zh-HK": "6.1(9) KPMG 對控方第九證人的提問" } }, { "doc_id": 163, "seg_id": 251, "translation": { "en": "32.35)In 2006, KPMG, who was responsible for investigating Daka Designs, had to question PW9, and the lawyers acting for Daka Designs provided to PW9 the questions that KPMG was going to ask. PW9 and the 1st and 2nd applicant met many times to discuss the questions that KPMG might raise and how to answer them. The 1st and 2nd applicants told PW9 how they would answer KPMG’s questions and expected PW9 to provide answers consistent with theirs. After discussion, PW9 falsely claimed in his answers that the unit price of $936 for the FT66 mosquito traps was acceptable, and that the money given by the 2nd applicant to PW9 for paying the deposit under the “special order” and reducing the amount payable for the goods under the “special order” was a personal loan from the 2nd applicant to him.", "zh-HK": "32.35)在 2006 年時負責調查 Daka Designs 的 KPMG 要向控方第九證人提問，於是 Daka Designs 的律師把 KPMG 會提出的問題提供給控方第九證人。控方第九證人與第一及第二申請人多次會面商討 KPMG 可能會提出的問題和如何作答。第一及第二申請人告訴控方第九證人他們會如何回答 KPMG 的問題，及希望控方第九證人提供一致的答案。經商討後控方第九證人回答問題時訛稱 FT66 型號驅蚊器的 $936 單價可以接受，及訛稱第二申請人給控方第九證人「特別訂單」的按金和扣減 MHM 在「特別訂單」所欠的貨款的錢是第二申請人給他的私人貸款。" } }, { "doc_id": 163, "seg_id": 252, "translation": { "en": "32.36)Regarding the FT66 mosquito traps, PW9 said that he had never made any purchase from DDL at the price of $936. Therefore, the statement he made to KPMG that he had purchased FT66 at the price of $936 was not true. PW9’s statement that the sums of $1,000,000, $2,000,000, $360,000 and $2,960,000 deposited into his bank account were monies he borrowed from the 2nd applicant was also not true and was an answer that he and the 1st and 2nd applicants came up with in their discussions. It was obvious that, in order to cover up the fact that the “special order” was a bogus commercial transaction, the 1st and 2nd applicants came to a consensus with PW9 to provide false answers to the questions that KPMG might ask.", "zh-HK": "32.36)就 FT66 型號的驅蚊器，控方第九證人說他從來沒有以 $936  向 DDL 入貨。因此他向 KPMG 指他以 $936 這個價錢去購買 FT66 是不真實的。控方第九證人亦曾經說過存入他的銀行戶口的 $1,000,000，$2,000,000，$360,000 及 $2,960,000都是他向第二申請人的借貸，這亦並非事實，這是他與第一及第二申請人會面商討出來的答案。顯然第一及第二申請人為了掩飾「特別訂單」是一個虛假商業交易而與控方第九證人達致共識，以虛假的答案回答 KPMG 可能會問的問題。" } }, { "doc_id": 163, "seg_id": 253, "translation": { "en": "6.1(10) 2004 annual report of Daka Designs", "zh-HK": "6.1(10) Daka Designs 2004 年年報" } }, { "doc_id": 163, "seg_id": 254, "translation": { "en": "32.37)The financial report contained in the annual report submitted to SGX by Daka Designs for the year of 2004 showed that the turnover for that year was $152,095,000. This included the $8,900,000 business pursuant to the MHM “special order”.", "zh-HK": "32.37)Daka Designs 提交予「新交所」的 2004 年年報的財務報告中，列出該年的營業額 (turnover) 為 $152,095,000，其中包括來自 MHM 「特別訂單」的 $8,900,000 生意額。" } }, { "doc_id": 163, "seg_id": 255, "translation": { "en": "32.38)PW12 (a partner of RSM) said that he noticed that the three invoices marked as Exhibits P42, P43 and P44 were all issued in late March and involved the same customer and substantial amounts of money, and he as an auditor would have harboured suspicions and made enquiries to ensure that the customer had taken delivery of the goods. The “goods receipt acknowledgement” marked as Exhibit P64 was proof of receipt by RSM of MHM’s confirmation that it had received the goods, and therefore the transactions underlying these three commercial invoices were all included in the DDL financial report for the year ended 31 March 2004. PW12 said that if MHM had not taken delivery of the goods, the total amount represented by these three commercial invoices, i.e. $8,976,619.55, should not have been included in the turnover for the year of 2004 and should have been removed from it.", "zh-HK": "32.38)控方第十二證人(RSM 的合夥人)指出他認為控方證物 P42、P43 及 P44 這三張發票都是三月尾發出，涉及同一客戶及數目不少，因此作為核數師他會產生懷疑及提出查問確保客戶已提貨。證物 P64 的「收貨確認書」就是 RSM 收到 MHM 確認已收貨的證明書，因此這三張商業發票的交易都計算在 DDL 截至 2004 年 3 月 31 日的年度財務報告中。控方第十二證人說如果 MHM 沒有提貨的話，這三張商業發票的金額即共 $8,976,619.55 不應算在 2004 年度的營業額，及須從這營業額中扣減出來。" } }, { "doc_id": 163, "seg_id": 256, "translation": { "en": "6.1(11) Other witnesses", "zh-HK": "6.1(11) 其他證人" } }, { "doc_id": 163, "seg_id": 257, "translation": { "en": "32.39)Tang Shuk-nei, Melissa (“PW14”) is an ICAC Chief Investigator and a forensic accountant. Having referred to RSM’s investigation on the accounts of Daka Designs, she concluded that in the Daka Designs annual report for the year 2004, the turnover of HK$152,095,000 and net profit of HK$20,002,000 had included the amounts represented by these three invoices and their corresponding net profit in the sum of HK$6,236,000.", "zh-HK": "32.39)鄧淑妮(‘控方第十四證人’)是廉政公署的總調查主任及一位法證會計師。她參閱了 RSM 查核 Daka Designs 帳目時得出的結論是 Daka Designs 2004 年度的年報中 HK$152,095,000 銷售額及純利 HK$20,002,000 已包括這三張發票的金額和它們 HK$6,236,000 的純利。" } }, { "doc_id": 163, "seg_id": 258, "translation": { "en": "32.40)Chay Yeow-mei, Lorraine (“PW13”) was Vice President of the Issuer Regulation Department of SGX. She indicated that if the volume of business stated as originating from MHM in the annual report of Daka Designs did not refer to genuine business, SGX would make a report to the relevant authority because SGX had been misled by Daka Designs which, by so doing, had contravened the relevant law. According to the SGX listing manual, the annual report of a listed company must contain sufficient information to enable people to understand the performance and financial conditions of the listed company and its subsidiaries. She said that the objective of the annual report was to provide sufficient information to enable investors and professionals to be aware of the operation, financial conditions and performance of the company and its subsidiaries, so that those people could fully understand and properly assess the value of the shares of that company. She stated that such a requirement was also intended to achieve the overriding objective as referred to in the listing manual, namely that of maintaining confidence in the market.", "zh-HK": "32.40)謝柔美(‘控方第十三證人’)是「新交所」發行審核的監管部副總裁，她表示如果 Daka Designs 年報中來自 MHM 的生意額不是真實的生意的話，「新交所」會向有關當局舉報，因為「新交所」被誤導及 Daka Designs 這樣做是違反了有關的法律。根據「新交所」上市手冊，年報要有足夠資料令人明白上市公司及其附屬公司的業績及財務狀況。她說年報的目的是提供足夠資料給投資者及專業人士，讓他們知道公司及其附屬公司的營運狀況、財務狀況和業績，從而使他們對公司的股值能充分了解及作出適當的分析。她指這規定亦是要為了達至上市手冊所指的維護市場信心的大前提。" } }, { "doc_id": 163, "seg_id": 259, "translation": { "en": "6.2 The 1st applicant’s argument on the 8th Charge", "zh-HK": "6.2 第一申請人就控罪八的論點" } }, { "doc_id": 163, "seg_id": 260, "translation": { "en": "6.2(1) Weight accorded to P39 by Judge Yau", "zh-HK": "6.2(1) 邱法官給予證物 P39 的比重" } }, { "doc_id": 163, "seg_id": 261, "translation": { "en": "32.41)The 1st applicant contends that Judge Yau had given inappropriate weight to Exhibit P39 and held on that basis that the 1st applicant had taken part in the 8th Charge. PW9 liaised and discussed with the 2nd applicant in respect of the “special order” referred to in the 8th Charge. Exhibit P39 was the only evidence that Judge Yau had relied on in finding that during the conspiracy the 1st applicant had knowledge of the discussion between the 2nd applicant and PW9. All the other evidence relied on by Judge Yau in relation to the 1st applicant’s conduct was from the years 2005 and 2006 and, as such, was not sufficient to prove that the 1st applicant had taken part in the conspiracy in as early as 2004.", "zh-HK": "32.41)第一申請人認為邱法官給予證物 P39 不適當的比重而裁定第一申請人有份參予控罪八。控方第九證人是與第二申請人接洽和商討控罪八所指的「特別訂單」。證物 P39 是邱法官唯一曾依賴的證據在串謀期間第一申請人知悉第二申請人和控方第九證人之間有一個商討。其他邱法官引用第一申請人作為之證據均是發生於 2005 年和 2006 年。這些證據不足以證明第一申請人早在 2004 年已參與了串謀。" } }, { "doc_id": 163, "seg_id": 262, "translation": { "en": "32.42)In our view, this issue should be dealt with by applying common sense. The two applicants were the directors and the most senior decision makers of DDL. The 1st applicant, a chartered accountant, was responsible for financial matters, and the 2nd applicant was mainly responsible for developing products. In the context of the present case, which is that Daka Designs inflated the turnover of the company by making use of the “special order” in question, the 1st applicant could not possibly have been kept in the dark without in any way taking part or being involved in the “special order” conspiracy.", "zh-HK": "32.42)本庭認為這議題必須以常理來處理。兩名申請人是 DDL 的董事和最高決策人。第一申請人是一名特許的會計師，負責財務。第二申請人主要是負責產品開發。本案的背景是Daka Designs 的年報誇大了公司營業額，誇大的方法是依賴有關的「特別訂單」。在這個背景之下，第一申請人是不可能是被蒙在鼓裡，完全沒有參與涉及「特別訂單」的串謀。" } }, { "doc_id": 163, "seg_id": 263, "translation": { "en": "32.43)Judge Yau made the following comments on Exhibit P39:", "zh-HK": "32.43)邱法官就證物 P39 作出以下的評論：" } }, { "doc_id": 163, "seg_id": 264, "translation": { "en": "“508.In fact, the 1st defendant not only knew that there was such an order, but also knew about the conditions proposed by PW9, which were set out in an email that he sent to the 2nd defendant (Prosecution Exhibit P39). As stated above, the conditions in respect of this order were that MHM was not required to pay any deposit, was not obliged to take delivery of the goods within one year and did not have to assume any risk, and so on. PW9 confirmed in his evidence that he had sent such an email to the 2nd defendant, but in fact Exhibit P39 was not the very email that he had sent to the 2nd defendant directly. This was an email by which the 2nd defendant forwarded PW9’s email to a person called Raymond. Raymond is the 1st defendant’s Christian name. The 1st and 2nd defendants were the bosses of Daka group, and the email related to an order of Daka group, so undoubtedly, this Raymond must be the 1st defendant.", "zh-HK": "「508.其實第一被告人一定不單止知道有這樣的一張訂單，更知道控方第九證人所開出的條件。控方第九證人的條件是在他給第二被告人的一張電郵(控方P39)中列出來。如上文所述，條件包括MHM就這訂單不用支付按金，沒有責任一年內提貨和不用承擔風險等等。控方第九證人作供時確認發了一張這樣的電郵給第二被告人，但控方證物P39其實並不是他直接發給第二被告人的那張電郵。它是第二被告人把控方第九證人的電郵轉寄給一個叫Raymond的人的電郵。Raymond是第一被告人的英文名字。第一及第二被告人是特嘉集團的老闆，而電郵是有關特嘉集團的一張訂單，毫無疑問，這個Raymond一定是第一被告人。" } }, { "doc_id": 163, "seg_id": 265, "translation": { "en": "509.This email was very simple, containing only the email that PW9 had sent to the 2nd defendant. The 2nd defendant did not add a single word to it. The subject of email was simply stated as ‘This is from MHM’. All this clearly shows that the 2nd and 1st defendants had a mutual tacit understanding on this special order and this email, and no explanation was needed at all. Things could not have been more natural. The 1st and 2nd defendants were the bosses of Daka group and, as shown by the emails in the case, they had been working closely together and having a close relationship. They would definitely discuss the business and other matters of the company. Without doubt, the 1st defendant must have received this email and must have known the conditions put forward by PW9 in this email.”", "zh-HK": "509.這電郵很簡單，內容就只有控方第九證人發給第二被告人的電郵。第二被告人一句說話也沒有加上去。電郵的主題(subject)也簡單地寫成「 This is from MHM」。由此可見，第二被告人及第一被告人就這特別訂單及這電郵有了默契，完全不用加上任何解釋。這其實是很自然的事，第一及第二被告人是特嘉集團的老闆，從案中出現過的電郵可以看出，他們緊密地一起工作及關係密切，他們之間一定會就公司的業務和其他事進行商討。毫無疑問，第一被告人一定收到這電郵及一定知道這電郵中第九控方證人所提出的條件。」" } }, { "doc_id": 163, "seg_id": 266, "translation": { "en": "32.44)We respectfully agree with what Judge Yau said. In our view, it was open to Judge Yau to draw, on the basis of Exhibit P39, the inference that the 1st applicant had participated in the conspiracy.", "zh-HK": "32.44)本庭認同邱法官的說法。本庭認為邱法官是可以根據證物 P39 作出第一申請人是有參與串謀的推論。" } }, { "doc_id": 163, "seg_id": 267, "translation": { "en": "32.45)The 1st applicant submits that in considering Exhibit P39, Judge Yau had ignored the point that, on the relevant evidence, the subsequent arrangements of MHM and DDL did not completely follow the content of Exhibit P39. Such evidence included:", "zh-HK": "32.45)第一申請人認為邱法官在考慮證物 P39 時忽略了考慮有關的證據顯示日後 MHM 和 DDL 的安排是沒有完全依照證物 P39 的內容來安排的。這些證據包括：" } }, { "doc_id": 163, "seg_id": 268, "translation": { "en": "(1)MHM purchased FT66 goods. Exhibit P39 stated that the order did not cover FT66 goods.", "zh-HK": "(1)MHM 購買 FT66 貨品。證物 P39 說訂單不包括 FT66 貨品。" } }, { "doc_id": 163, "seg_id": 269, "translation": { "en": "(2)MHM paid a deposit to Briga. In Exhibit P39, PW9 requested that no deposit be paid.", "zh-HK": "(2)MHM 向 Briga 支付訂金。在證物 P39 控方第九證人要求不需要支付訂金。" } }, { "doc_id": 163, "seg_id": 270, "translation": { "en": "(3)In respect of the goods under the “special order” and their delivery, in 2004 MHM signed two “goods receipt acknowledgements”, thereby assuming the risk regarding the title to the goods. Exhibit P39 stated, “No commitment to have all the goods delivered within 2004.”", "zh-HK": "(3)MHM 在 2004 年就「特別訂單」的貨物、提貨及簽署了兩張「收貨確認書」，承擔了貨權的風險。證物 P39 說‘No commitment to have all the goods delivered within 2004’。" } }, { "doc_id": 163, "seg_id": 271, "translation": { "en": "(4)PW9 said that no consensus was reached in respect of the second condition (i.e. “guaranteed option”) that he put forward in Exhibit P39.", "zh-HK": "(4)控方第九證人說他在證物 P39 他開出的第二個條件(即 ‘guaranteed option’ ) 沒有得到共識。" } }, { "doc_id": 163, "seg_id": 272, "translation": { "en": "(5)For the third condition in Exhibit P39, i.e. “sole distributorship”, the prosecution had not proved the existence of such a contract.", "zh-HK": "(5)證物 P39 的第三個條件，即「獨家銷售權」，控方未能證明有此合同存在。" } }, { "doc_id": 163, "seg_id": 273, "translation": { "en": "(6)For the fourth condition in Exhibit P39 (i.e. “rebate”), PW9 confirmed that there was no discussion on the details at that time.", "zh-HK": "(6)證物 P39 的第四個條件(即「回佣」) ，控方第九證人確認當時沒有商討細節。" } }, { "doc_id": 163, "seg_id": 274, "translation": { "en": "32.46)The 1st applicant argues that even if he had received Exhibit P39, the above matters showed that the content of Exhibit P39 did not come true, and neither the 1st applicant’s knowledge of any conspiracy nor his participation therein could be proved.", "zh-HK": "32.46)第一申請人認為就算他收到證物 P39，以上的事情顯示證物 P39 的內容沒有成為事實，不能證明第一申請人知道有任何串謀存在或他參與其中。" } }, { "doc_id": 163, "seg_id": 275, "translation": { "en": "32.47)In our view, even if the conditions put forward by PW9 did not take full effect, it did not mean that the 1st applicant had not taken part in the conspiracy. Exhibit P39 was the response made by PW9 after knowing that the 2nd applicant requested him to provide the “special order”. Obviously, the two parties continued to discuss this matter thereafter.", "zh-HK": "32.47)本庭認為就算控方第九證人所開出的條件並沒有完全落實，這也不表示第一申請人不是參與串謀。證物 P39 是第九控方證人知悉第二申請人要求他提供「特別訂單」後所作出的回應。明顯地，雙方之後就這事繼續進行商討。" } }, { "doc_id": 163, "seg_id": 276, "translation": { "en": "32.48)Moreover, there is other evidence which serves to prove that the 1st applicant participated in the “special order”:", "zh-HK": "32.48)另外，案件亦有其他證供證明第一申請人參與「特別訂單」一事：" } }, { "doc_id": 163, "seg_id": 277, "translation": { "en": "(1)PW11 said that she analyzed the “special order” of MHM at a later stage in accordance with the 1st applicant’s instruction.", "zh-HK": "(1)控方第十一證人說她後期根據第一申請人的指示，就 MHM 的「特別訂單」作出分析。" } }, { "doc_id": 163, "seg_id": 278, "translation": { "en": "(2)The general manager of Briga (PW5) said, in respect of the two “proforma invoices” issued by Briga to MHM (Prosecution Exhibits P40 and P41), that the 1st applicant told him that he had already received the purchase orders in relation to those two “proforma invoices” and that there were changes to the model numbers and quantities of the goods. In mid-2005, in the warehouse of T&K, PW5 saw the goods relating to the “special order”. The 1st applicant instructed him to look for buyers of these goods.", "zh-HK": "(2)Briga 的總經理(控方第五證人)就 Briga 開出 MHM 的兩張「預開發票」(控方證物 P40 及 P41)說第一申請人告訴他已收到這兩張「預開發票」的有關購貨單，第一申請人亦告訴他貨物的型號和數量有所更改。在 2005 年中，控方第五證人在「千基」的貨倉見過涉及「特別訂單」的貨物。第一申請人指示他去物色客人去購買這些貨物。" } }, { "doc_id": 163, "seg_id": 279, "translation": { "en": "(3)The 1st applicant put up money for PW9 for the purpose of reducing the amount payable for the goods by MHM to Briga by reason of the “special order”. The evidence showed that, of the $2,900,000 that PW9 received, all except $100,000 came from the 1st applicant. The 1st applicant could not possibly have no knowledge of the purpose of such a large sum of money.", "zh-HK": "(3)第一申請人出錢給控方第九證人讓他減低 MHM 因「特別訂單」Briga 欠貨款。證據顯示控方第九證人收到的 $2,900,000 除 $100,000 外其餘全部來自第一申請人。第一申請人不可能不知道這大筆錢的用途。" } }, { "doc_id": 163, "seg_id": 280, "translation": { "en": "(4)The subsequent arrangements made by PW9 for returning the refunded money in respect of the “special order” to the 1st and 2nd applicants also support the conclusion that the 1st applicant had participated in the conspiracy. It can been seen from the email (Exhibit P118) that PW9 sent to the 2nd applicant that, as the money paid to Briga for the goods did not come from him or MHM and there was no record of it in MHM’s accounts, they had to decide how Briga was to refund the money paid for the goods to MHM and how PW9 was to return the money to the 1st and 2nd applicants. PW9 indicated in the email that the 1st applicant had suggested how the refunded money could be returned to the 1st and 2nd applicants. The 2nd applicant forwarded PW9’s email to the 1st applicant. Obviously, the 1st and 2nd applicants had a mutual tacit understanding as to how PW9 was to return the refunded money to them.", "zh-HK": "(4)控方第九證人其後就「特別訂單」退款歸還給第一申請人及第二申請人的安排亦支持第一申請人有份參與串謀，從控方第九證人發給第二申請人的電郵證物 P118 中可見到，控方第九證人因付給 Briga 的貨款並非來自他自己或 MHM 及 MHM 的賬目沒這些記錄，因此他們要決定 Briga 如何把貨款退給 MHM，及控方第九證人如何把錢歸還給第一及第二申請人。控方第九證人在電郵中指第一申請人作出一個如何把這些退款退還給第一及第二申請人的方法。第二申請人把控方第九證人的電郵轉發給第一申請人。顯然第一及第二申請人對於就控方第九證人如何將退款歸還給第一申請人及第二申請人已有默契。" } }, { "doc_id": 163, "seg_id": 281, "translation": { "en": "(5)In the end, an overseas account was used for the purpose of returning the refunded money to the 1st and 2nd applicants: part of the money to be returned to the 1st applicant was remitted by PW9 to an account of the 1st applicant’s daughter in the UK in accordance with the 1st applicant’s instruction.", "zh-HK": "(5)最終就退款如何歸還給第一申請人及第二申請人的方法，他們用了一個海外戶口，控方第九證人把部份歸還第一申請人的款項根據第一申請人的指示匯給第一申請人的女兒在英國的戶口。" } }, { "doc_id": 163, "seg_id": 282, "translation": { "en": "(6)In August 2004, in a roundabout manner and through PW1, the 1st applicant provided $100,000 to PW9 as reward. Judge Yau briefly recounted the relevant evidence as follows:", "zh-HK": "(6)第一申請人在 2004 年 8 月以迂迴曲折的方法經控方第一證人提供 $100,000 給控方第九證人作為獎勵。以下是邱法官對就有關證供的簡述：" } }, { "doc_id": 163, "seg_id": 283, "translation": { "en": "“Reward of $100,000 and buying back Daka Designs shares", "zh-HK": "「十萬元獎勵及Daka Designs股份回購" } }, { "doc_id": 163, "seg_id": 284, "translation": { "en": "388.PW9 said, throughout the incident, he was not required to commit to take delivery of the goods but had to sign documents such as purchase orders, proforma invoices, goods receipt acknowledgements and delivery notes, which was causing him a lot of trouble, and therefore the 1st or 2nd defendant promised to give him $100,000 as reward upon successful listing. PW9 said that it was around [a wrong character in Chinese] February or May 2004, which was more or less the time he signed the $10,000,000 purchase orders, that he knew there would be this sum of $100,000. According to Admitted Facts (1), on 9 August 2004 a sum of $100,000 was transferred from the HSBC joint account of the PW1 and PW2 to the HSBC joint account of PW9 and his wife, Koo Geok-cheng. PW9 knew that this was the $100,000 reward that the 2nd defendant gave him.", "zh-HK": "388.控方第九證人說，因為在整件事件中他不用承諾一定要提貨，但卻要簽署購貨單、預開發票、收貨確認書及送貨單等文件，帶給他很多麻煩，所以第一或第二被告承諾成功上市後，給他十萬元作獎勵。控方第九證人說，他是於若[應該是約]2004年2月或5月的時候知道會有這十萬元，與他簽署那一千萬元的購貨單的時間差不多。根據第一份事實確認書，於2004年8月9日一筆十萬元的款項從控方第一及第二證人的滙豐銀行聯名戶口轉賬到控方第九證人和其妻子柯玉清的滙豐銀行聯名戶口。控方第九證人知道這是第二被告人給他的十萬元獎勵。" } }, { "doc_id": 163, "seg_id": 285, "translation": { "en": "389.PW9 pointed out he did not know PW1. In giving evidence, PW1 also said that he did not know PW1 [sic, for PW9] and that it was upon the 1st defendant’s instructions that he transferred the money to the HSBC joint account of PW9 and Koo Geok-cheng. …”", "zh-HK": "389.控方第九證人指出，他並不認識控方第一證人。控方第一證人作證的時候亦指他並不認識控方第一證人[應該是第九證人]，而他是遵照第一被告人的指示將錢轉到控方第九證人與柯玉清的滙豐銀行聯名名戶口。……」" } }, { "doc_id": 163, "seg_id": 286, "translation": { "en": "(7)In order to cover up the fact that the “special order” was a bogus commercial transaction, the 1st and 2nd applicants reached a consensus with PW9 to provide false answers to questions that KPMG might ask.", "zh-HK": "(7)第一申請人及第二申請人為了掩飾「特別訂單」是一個虛假商業交易而與控方第九證人達致共識，以虛假的答案回答 KPMG 可能會問的問題。" } }, { "doc_id": 163, "seg_id": 287, "translation": { "en": "32.49)Although PW9’s return of the refund to the 1st and 2nd applicants and PW9’s discussion with the 1st and 2nd applicants about how to answer KPMG’s questions took place after 2 August 2004, i.e. after the period of conspiracy stated in the charge, all these events prove that the 1st and 2nd applicants and PW9 had used various methods to make the bogus commercial transactions appear genuine and had hidden the truth from KPMG afterwards. Judge Yau could rely on this evidence to conclude and hold that, during period of conspiracy stated in the charge, the 1st applicant had already known that the “special order” was a bogus transaction and had taken part in this conspiracy.", "zh-HK": "32.49)雖然上述控方第九證人把 Briga 的退款歸還第一申請人及第二申請人和控方第九證人與第一及第二申請人商討如何回答 KPMG 提問這兩件事都是發生在 2004 年 8 月 2 日之後，即在控罪中所指的串謀期間之後才出現的，但這些是證明了第一申請人及第二申請人和控方第九證人用各種不同方式令這本是虛假的商業交易看似真確，而其後向 KPMG 掩飾事件的真相。邱法官是可以根據這些證據裁定第一申請人在控罪中所指的串謀期間已經知道「特別訂單」是一個虛假交易及參與這串謀的結論。" } }, { "doc_id": 163, "seg_id": 288, "translation": { "en": "32.50)Regarding the arguments advanced by the 1st applicant, we find that in the present case there was ample evidence to support Judge Yau’s verdict that the 1st applicant was guilty of the 8th Charge. The 1st applicant also relies on the grounds of appeal advanced by the 2nd applicant against the 8th Charge. We will deal with them later in this judgment.", "zh-HK": "32.50)就第一申請人提出的理據，本庭認為本案有充分的證據支持邱法官裁定第一申請人的第八項控罪罪名成立。第一申請人亦依賴第二申請人針對第八項控罪的上訴理由。本庭將會在下文處理。" } }, { "doc_id": 163, "seg_id": 289, "translation": { "en": "The 2nd applicant’s grounds of appeal", "zh-HK": "第二申請人的上訴理據" } }, { "doc_id": 163, "seg_id": 290, "translation": { "en": "1.1) Summary of the grounds of appeal", "zh-HK": "1.1) 上訴理據的歸納" } }, { "doc_id": 163, "seg_id": 291, "translation": { "en": "1)The grounds of appeal advanced by the 2nd applicant boil down to four points:", "zh-HK": "1)第二申請人的上訴理據可以歸納為四點：" } }, { "doc_id": 163, "seg_id": 292, "translation": { "en": "(1)In accepting PW9 as a veracious and reliable witness, Judge Yau failed to consider, properly or at all, that there were many inconsistencies in PW9’s testimony.", "zh-HK": "(1)邱法官接納控方第九證人為誠實及可靠的證人時沒有考慮或正確考慮控方第九證人之證言多番前後不一。" } }, { "doc_id": 163, "seg_id": 293, "translation": { "en": "(2)Judge Yau erroneously attributed the inconsistencies in PW9’s testimony to his lack of seriousness and perfunctory attitude.", "zh-HK": "(2)邱法官錯誤地以控方第九證人之態度不認真及敷衍來解釋他證言之前後不一。" } }, { "doc_id": 163, "seg_id": 294, "translation": { "en": "(3)Judge Yau erred in speculating that PW9’s attitude in giving evidence was caused by his relationship with the applicants.", "zh-HK": "(3)邱法官錯誤揣測控方第九證人作供之態度是因為他與申請人之關係。" } }, { "doc_id": 163, "seg_id": 295, "translation": { "en": "(4)In holding that the “special order” was a bogus transaction, Judge Yau failed to consider, properly or at all, the relevant evidence.", "zh-HK": "(4)邱法官裁定「特別訂單」為虛假交易時沒有考慮或正確考慮相關證據。" } }, { "doc_id": 163, "seg_id": 296, "translation": { "en": "1.2) Findings of fact", "zh-HK": "1.2) 事實裁決" } }, { "doc_id": 163, "seg_id": 297, "translation": { "en": "33.2)These four grounds are in fact all directed at the findings of fact made by Judge Yau. As stated above, the appellate court will overturn findings of fact made by the trial judge only if such findings are plainly wrong. At the trial, which lasted 80 working days, Judge Yau had ample opportunities to listen to PW9’s testimony and observe his demeanour. Moreover, the 8th Charge is supported not only by PW9’s testimony but also by other evidence. We do not consider that the 2nd applicant has put forward sufficient grounds of appeal in this respect. We now deal with the arguments advanced by the 2nd applicant in support of each of these four grounds of appeal in detail.", "zh-HK": "33.2)這四點理由其實都是環繞着邱法官就事實的裁決。正如上文所說，上訴法庭只會在原審法官事實的裁判上犯了明顯的錯誤才會推翻有關事實的裁決。這審訊歷時八十個工作天，邱法官有充分的機會聆聽控方第九證人的證供及觀察他作證時的神態。另外支持第八控罪的證據不單只是控方第九證人的證供，還有其他證供支持。本庭不認為第二申請人就這點提出充分的上訴理由。現在本庭分別處理第二申請人這四點上訴理據所提出的各項詳細論點。" } }, { "doc_id": 163, "seg_id": 298, "translation": { "en": "1.3) Detailed arguments", "zh-HK": "1.3) 詳細論點" } }, { "doc_id": 163, "seg_id": 299, "translation": { "en": "1.3)(1) Citibank account", "zh-HK": "1.3)(1) 花旗銀行戶口" } }, { "doc_id": 163, "seg_id": 300, "translation": { "en": "33.3)The 2nd applicant submits that PW9 had denied having used his own bank account to carry out the two bank transactions in question to give to the 2nd applicant half of the money that Briga had refunded to MHM, and that PW9 had tried to shift the responsibilities to the 2nd applicant.", "zh-HK": "33.3)第二申請人指控方第九證人否認是他自己使用其銀行戶口進行的兩次相關的銀行交易把 Briga 退還給 MHM 的款項交一半給第二申請人及嘗試推搪責任到第二申請人身上。" } }, { "doc_id": 163, "seg_id": 301, "translation": { "en": "33.4)Initially PW9 insisted that the 2nd applicant was in control of his account with the Citibank. He said that when the account was opened, he gave the 2nd applicant the user name and password for online banking, and so the 2nd applicant was able to deal with the money through online banking. However, according to the agreed facts, the transactions in question were not carried out via the online banking service of the Citibank. Pursuant to the normal procedures, the Citibank would not approve transactions unless written authorization/instructions were in place and the relevant signatures were examined and verified.", "zh-HK": "33.4)控方第九證人初時堅稱第二申請人操縱他於「花旗銀行」所開設的戶口。他指開戶口時曾經給予第二申請人網上理財名稱、密碼，故此第二申請人可以透過網上理財調動款項。但根據雙方同意的事實，有關的銀行交易不是透過「花旗銀行」網上理財服務處理的。按一般程序，「花旗銀行」必須得到持有書面授權/指示及審核簽名，確保真確才會批准。" } }, { "doc_id": 163, "seg_id": 302, "translation": { "en": "33.5)In fact, according to the transcript of PW9’s testimony, although he had said in examination-in-chief that the 2nd applicant could use online banking in respect of the Citibank account, the following exchange took place between PW9 and Judge Yau in the course of examination-in-chief:", "zh-HK": "33.5)其實根據控方第九證人證供的謄本，雖然他在主問時是有說過第二申請人是可以在「花旗銀行」戶口使用網上理財，但他在主問時回答邱法官問題的答案是：" } }, { "doc_id": 163, "seg_id": 303, "translation": { "en": "“Court:Had you authorized Mr Ma to use this account of yours? Or had you only given him the password and user name for use on the internet?", "zh-HK": "「官：咁你呢個戶口有冇授權馬先生去使用？抑或淨係比password 同埋 user name 佢咁喺網上用？" } }, { "doc_id": 163, "seg_id": 304, "translation": { "en": "Answer:For this part, I cannot remember.”", "zh-HK": "答：呢一部份我唔記得喇。」" } }, { "doc_id": 163, "seg_id": 305, "translation": { "en": "33.6)Obviously, what he meant was that he could not remember if he had directly authorized the 2nd applicant to use the account or had merely given the password and user name to the 2nd applicant for use on the internet. Judge Yau did not err when he accepted PW9’s testimony that the bank transactions in question were conducted without his knowledge.", "zh-HK": "33.6)明顯地，他所指的是他記不起是直接授權第二申請人使用戶口或者只是把密碼及使用者名字給第二申請人在網上使用。邱法官接納控方第九證人的證言，有關銀行交易是在他不知情之下進行的並沒有錯誤。" } }, { "doc_id": 163, "seg_id": 306, "translation": { "en": "33.7)The 2nd applicant also alleges that PW9 had transferred the money away because he had been arrested by the ICAC and, as a suspect, did not want the ICAC to find out any money relating to the present case in his account. We agree with the respondent that this suggestion is illogical. At that time, PW9 had already been arrested by the ICAC and become a suspect, and any further movement of the money would only make himself even more suspicious in the eyes of the ICAC.", "zh-HK": "33.7)第二申請人亦指控方第九證人是因為被廉署拘捕，成為疑犯，不想廉署查到有任何涉及案件的款項在他戶口內，所以把款項轉出。本庭同意答辯人所說，這是不合邏輯的說法。當時控方第九證人已經被廉署拘捕，成為疑犯，若他再進一步將款項調動會令廉署對他更有懷疑。" } }, { "doc_id": 163, "seg_id": 307, "translation": { "en": "1.3)(2) Three delivery notes", "zh-HK": "1.3)(2) 三份提貨單" } }, { "doc_id": 163, "seg_id": 308, "translation": { "en": "33.8)PW9 said in examination-in-chief that the three delivery notes, namely Exhibits P45, P46 and P47, had been signed as per the 2nd applicant’s request. However, when being cross-examined, he said that he “cannot remember”.", "zh-HK": "33.8)控方第九證人主問時說證物 P45、 P46 及 P47 這三份送貨單是因應第二申請人要求下簽署的。但在盤問時他卻說「不記得」。" } }, { "doc_id": 163, "seg_id": 309, "translation": { "en": "33.9)The 2nd applicant submits that PW9’s testimony could not support the allegation that the 2nd applicant had requested or instructed him to sign the three delivery notes. The evidence given by PW9 on the source of the three delivery notes, the circumstances under which they were signed, whether they were to serve any purpose and so on, was extremely unclear and questionable. PW9 described that the 2nd applicant had requested him to sign the three delivery notes which he then returned to the 2nd applicant. However, the three delivery notes were eventually seized at PW9’s home by the ICAC, and PW9 indicated under cross-examination that he could not recall the circumstances under which he signed the delivery notes. The reasons why the three delivery notes were at PW9’s home are still unknown. In addition, there is no evidence showing that Exhibits P45, P46 and P47 served any purpose in relation to the “special order”, and there should not have been any delivery note in respect of the “special order” because the documents for the transfer of title to the goods in question were not the delivery notes but the “goods receipt acknowledgements”, i.e. Exhibits P64 and P66.", "zh-HK": "33.9)第二申請人指，控方第九證人的證言不能夠支持第二申請人要求或指示他簽署該三份送貨單。控方第九證人的證供關於這三份送貨單的來源、在甚麼情況下簽署、有沒有用途等的證供極之含糊及值得懷疑。控方第九證人述及三份送貨單是第二申請人要求他簽署，然後他交回該三份送貨單給第二申請人。但三份送貨單最終被廉署由控方第九證人的家中檢獲，而控方第九證人於盤問下亦表示他不記得當時簽署送貨單的情況。另外三份送貨單為何會出現在控方第九證人之家中仍是一個謎。再者，案中沒有任何證供顯示證物 P45、 P46 及 P47 在「特別訂單」有任何用途，而且「特別訂單」根本不應有送貨單之存在，因相關貨物的轉讓物權的文件並不是送貨單，而是證物 P64 及 P66 的「收貨確認書」。" } }, { "doc_id": 163, "seg_id": 310, "translation": { "en": "33.10)Judge Yau ruled that it was upon the 2nd applicant’s request that PW9 signed the three delivery notes. He found that it was not at all necessary for PW9 to make up P45, P46 and P47 out of the blue. This was a finding of fact. We do not think that the seizure of the delivery notes at PW9’s home is a reason for overturning Judge Yau’s ruling. We agree with the following observations made by Judge Yau in his judgment:", "zh-HK": "33.10)邱法官裁定控方第九證人是在第二申請人的要求下才簽署這三份送貨單。邱法官認為他完全沒有必要自己無中生有地製造證物 P45、P46 及 P47，是一項事實的裁決。本庭不認為有關的送貨單在控方第九證人家裡搜獲會推翻邱法官的裁決。本庭同意邱法官在判案書的論點：" } }, { "doc_id": 163, "seg_id": 311, "translation": { "en": "“442.In fact, it is very obvious that using false goods receipt acknowledgements in the special order was definitely more flexible than using false delivery notes because, in the former case, the goods would on record remain with Briga and it was not necessary to deliver the goods physically to MHM, and this would certainly make it more convenient for Briga to handle the paperwork and carry out the procedures when it made a decision on how to deal with these goods. ”", "zh-HK": "「442.其實有一點很明顯的，在特別訂單裡使用虛假的收貨確認書一定會比使用虛假的送貨單來得靈活，因為使用收貨確認書在紀錄上貨物仍然留在Briga處及不用實質地把貨送到MHM，這對以後Briga要決定如何處理這些貨物，在文件上及手續上會絕對比較方便。」" } }, { "doc_id": 163, "seg_id": 312, "translation": { "en": "1.3)(3) Were the goods under the “special order” regarded as MHM’s inventory?", "zh-HK": "1.3)(3) 「特別訂單」的貨物被視為 MHM 的存貨？" } }, { "doc_id": 163, "seg_id": 313, "translation": { "en": "33.11)The 2nd applicant submits that Judge Yau erred in finding no contradiction between defence Exhibit D86, which showed that MHM had regarded the goods under the “special order” which were temporarily stored at DDL as its own inventory, and PW9’s testimony that MHM had never regarded them as inventory.", "zh-HK": "33.11)第二申請人指，邱法官裁定辯方證物 D86 顯示出 MHM 把「特別訂單」寄存在 DDL 的貨視為其存貨 (inventory)，與控方第九證人在庭上指 MHM 從來沒有把它們視為存貨的說法沒有矛盾是錯誤的。" } }, { "doc_id": 163, "seg_id": 314, "translation": { "en": "33.12)Defence Exhibit D86 was an email sent by Briga to MHM. It stated, “Kindly to update the stock inventory in our factory for the April 04 to March 05 program”. This email set out the inventory in the “special order”, and in the email there were some handwritten figures which appeared to refer to the quantity of goods that MHM had received. In this regard, Judge Yau held that:", "zh-HK": "33.12)辯方證物 D86 是一份 Briga 給 MHM 的電郵，內容說 ‘Kindly to update the stock inventory in our factory for the April 04 to March 05 program’。這電郵列出了「特別訂單」中的存貨，在電郵中有一些手寫的數目字看來是 MHM 已收取的貨物的數量。邱法官有關的裁決如下：" } }, { "doc_id": 163, "seg_id": 315, "translation": { "en": "“444.PW9’s testimony was very clear. He issued the purchase orders for the special order to Briga upon the 2nd defendant’s request, but he emphasized that MHM could choose whether and how to take delivery of the goods. This condition was also set out in the email sent by PW9 to the 2nd defendant, and so even if the production of these goods had been completed, they were not MHM’s inventory. Under such circumstances, it was natural for MHM to make a record of the goods received in the D86 email. This had nothing to do with whether MHM regarded these goods as inventory, nor could it constitute proof that MHM regarded these goods as its inventory. I fail to see any contradiction between the content of Defence Exhibit D86 and PW9’s evidence.”", "zh-HK": "「444.控方第九證人的證供很清晰，他在第二被告人的要求下向Briga發出了特別訂單的購貨單，但他強調MHM可選擇如何及是否提貨。這條件亦在控方第九證人給第二被告人的電郵中列了出來，因此這些貨就算Briga已完成生產，亦不是MHM的存貨。在這情況下，MHM在辯方證物D86電郵中紀錄了所提取的貨也是很自然的事，這與MHM 是否視這些貨為其存貨完全沒有關係，更不可以用作MHM視這些貨為其存貨的證明。本席認為辯方證物 D86 的內容與控方第九證人的證供完全沒有矛盾。」" } }, { "doc_id": 163, "seg_id": 316, "translation": { "en": "33.13)We find nothing wrong with Judge Yau’s ruling in this regard.", "zh-HK": "33.13)本庭看不到邱法官在這一方面的判決有任何錯誤之處。" } }, { "doc_id": 163, "seg_id": 317, "translation": { "en": "33.14)We also agree with Judge Yau’s ruling that Defence Exhibit D85 supported PW9’s testimony. Judge Yau said:", "zh-HK": "33.14)另外本庭亦認同邱法官裁定辯方證物 D85 是支持控方第九證人的證供。邱法官這樣說：" } }, { "doc_id": 163, "seg_id": 318, "translation": { "en": "“445. … In this exhibit, apart from the email in Defence Exhibit D86, there was also an email replying Briga in the name of PW9, which read as follows: ‘… noted and we certainly will work hard in trying to sell them.’ The prima facie meaning of these words tallies with PW9’s testimony that the goods under the special order were not MHM’s inventory and that MHM could choose whether and how to take delivery of the goods. Obviously, if MHM could sell more goods, then it could take more goods from Briga. This email told Briga that MHM would work hard to sell the goods for Briga. If these goods were MHM’s inventory, whether MHM could have them sold would not be Briga’s concern because they would already be the goods of MHM, and in that case, the content of this email would become meaningless to Briga.”", "zh-HK": "「445.…….在這證物中，除了有辯方證物 D86中的電郵外，亦有以控方第九證人名義回覆Briga 的電郵，內容如下：“…noted and we certainly will work hard in trying to sell them.” 這些文字的表面意思正與控方第九證人的證供相吻合，即特別訂單的貨並非MHM的存貨，及MHM 可選擇如何和是否提貨。很明顯，如果MHM能賣出多些貨的話就可以向 Briga 多提一些貨。這電郵是告訴 Briga，MHM 會努力替 Briga 銷貨。如果這些貨是 MHM 的存貨的話，無論MHM能否將它們售出也與 Briga 無關，因為它們都已經是MHM的貨，那麼這封電郵的內容對 Briga 來說就會變得毫無意義。」" } }, { "doc_id": 163, "seg_id": 319, "translation": { "en": "1.3)(4) Guarantee sales return", "zh-HK": "1.3)(4) 保證退貨(‘guarantee sales return’)" } }, { "doc_id": 163, "seg_id": 320, "translation": { "en": "33.15)The 2nd applicant submits that in making the above ruling Judge Yau had forgotten PW9’s testimony that any goods under the “special order” that MHM was unable to sell could be returned to DDL by means of “guaranteed sales return”. The 2nd applicant submits it would certainly be Briga’s concern if MHM was unable to sell the goods because one of the conditions of the agreement between MHM and DDL was that MHM could return the goods to Briga, and it was not the case, as Judge Yau said, that those words proved that the goods were not MHM’s inventory.", "zh-HK": "33.15)第二申請人認為邱法官作出這裁決時忘記了控方第九證人的證言：若 MHM 不能賣出的「特別訂單」貨物可以用‘guaranteed sales return’ 形式去還給 DDL。第二申請人認為若 MHM 不能夠售出相關貨物當然會與 Briga 有關，因 MHM 與 DDL 之間的協議條件之一就是 MHM 可將貨物退還給 Briga，而並非邱法官所述，這字眼證明貨物並不是 MHM 之存貨。" } }, { "doc_id": 163, "seg_id": 321, "translation": { "en": "33.16)We do not agree with this submission. In finding that this order was a bogus transaction, Judge Yau held as follows:", "zh-HK": "33.16)本庭不同意這個說法。邱法官在裁定這訂單是虛假交易作出以下的裁決：" } }, { "doc_id": 163, "seg_id": 322, "translation": { "en": "“464.Upon analysis of the evidence, there is no doubt that this was not a genuine commercial transaction but was a bogus transaction for some other purposes. As PW9 has pointed out, MHM was simply incapable of taking goods of as much as $10,000,000. So he sent an email to the 2nd defendant putting forward certain conditions (Prosecution Exhibit P39). In commercial transactions, it is usual and proper for the purchaser and seller to put forward their respective conditions. However, the first condition put forward by PW9 in the email was wholly unreasonable for normal transactions.", "zh-HK": "「464.從案中的證據來分析，毫無疑問這並不是一個真正的商業交易，而是一個另有目的的虛假交易。正如控方第九證人所指出，MHM根本就承受不了一千萬元的貨。他於是以電郵(控方證物P39)向第二被告人提出了一些條件。在商業交易中，買賣雙方各自提出條件是常有及正當的事。但控方第九證人在電郵中所提出的第一個條件，在正常的交易中根本上就是完全不合理的。" } }, { "doc_id": 163, "seg_id": 323, "translation": { "en": "465.Under this condition, MHM was not required to pay any deposit or bear any risk of the order. It even stated clearly that MHM would not be liable even if it did not take delivery of the goods within one year. In other words, although MHM had issued purchase orders, it was not at all obliged to take delivery of the goods under the purchase orders. MHM would only take delivery of and pay for the goods as and when necessary, and it had no obligation whatsoever to take delivery of or pay for the goods under the purchase orders within one year. This was no different from a total absence of a purchase order issued by MHM to Briga, and MHM could deal with his transactions with Briga as if no purchase order had ever been issued. Such a condition is not one which any normal seller would possibly accept.", "zh-HK": "465.根據這條件，MHM毋須支付訂金，及毋須承擔這訂單的任何風險。條件中更清楚列出，MHM一年內就算不提取這些貨物也毋須負上責任。這即是說，雖然MHM發出了購貨單，它根本就沒有責任去提取購貨單上的貨物。MHM就只會在有需要時才提取及支付他所需要的貨品，完全沒有責任在一年內提取及支付購貨單的貨品，這與MHM有沒有向Briga發出購貨單根本上就沒有分別，而MHM是完全可以當作沒有發出過這購貨單般地處理他與Briga之間的交易。這樣的條件是任何一個正常的賣家都不可能會接受的。" } }, { "doc_id": 163, "seg_id": 324, "translation": { "en": "466.To Briga, this special order by MHM was devoid of any substance … .”", "zh-HK": "466.對Briga來說，MHM的這個特別訂單根本上就是有等於無…..。」" } }, { "doc_id": 163, "seg_id": 325, "translation": { "en": "33.17)In our view, in considering if MHM had treated the goods under the “special order” as its inventory, one cannot just look at the condition of “guaranteed sales return”, but also has to take into account the fact that in the first place MHM was not required to pay any deposit or bear any risk with respect to the “special order”. Under such circumstances, the goods concerned could not possibly be MHM’s inventory.", "zh-HK": "33.17)本庭認為在處理 MHM 是否當「特別訂單」的貨物為貨存的問題時不可以單從‘guaranteed sales return’這個條件着手，還需要考慮 MHM 在該「特別訂單」原本是無須支付訂金及無需承擔訂單的任何風險。在這情況下，有關的貨物不可能是 MHM 的庫存。" } }, { "doc_id": 163, "seg_id": 326, "translation": { "en": "1.3)(5) MHM’s enquiry about the inventory", "zh-HK": "1.3)(5) MHM 查詢存貨" } }, { "doc_id": 163, "seg_id": 327, "translation": { "en": "33.18)The 2nd applicant also submits that PW9’s staff had enquired of DDL staff via email (Defence Exhibit D88) about the quantity of MHM inventory at DDL. PW9 admitted that he had knowledge of this email. He agreed that the ten items of goods listed in the email were ten of the goods included in the “proforma invoice” (Exhibit P40).", "zh-HK": "33.18)第二申請人亦指控方第九證人的職員曾以電郵(辯方證物 D88)向 DDL 的職員查詢 MHM 於 DDL 的貨存數量。控方第九證人承認他對這個電郵有認知。他同意電郵內所列的十種貨物就是證物 P40「預開發票」裡面所包含的其中十樣貨物。" } }, { "doc_id": 163, "seg_id": 328, "translation": { "en": "33.19)Judge Yau had this to say:", "zh-HK": "33.19)邱法官這樣說：" } }, { "doc_id": 163, "seg_id": 329, "translation": { "en": "“446.… Although the email made mention of MHM’s inventory, PW9 said that he had forgotten if MHM had any stock kept by Briga or DDL other than the goods under the special order. In the absence of evidence as to whether the goods stated in this email were related to the special order, this email and PW9’s evidence are not contradictory to each other.”", "zh-HK": "「446.……雖然電郵中提到 MHM 的存貨，但控方第九證人說他已忘記了當時除了特別訂單的貨外，MHM有沒有存貨在 Briga 或 DDL 處。案中沒有證據顯示這電郵中的貨是否與特別訂單的貨有關，因此這電郵與控方第九證人的證供並沒有矛盾。」" } }, { "doc_id": 163, "seg_id": 330, "translation": { "en": "33.20)The 2nd applicant points out that there was simply no evidence showing that, apart from the goods under the “special order”, there were other goods kept by DDL/Briga. PW9 also admitted that he knew staff members were enquiring about the quantity of the inventory for the goods covered by the “special order”.", "zh-HK": "33.20)第二申請人指出案件根本沒有證供顯示到除了「特別訂單」的貨外，有其他貨物存在 DDL/Briga，而控方第九證人亦承認了他知道職員在查詢這些包含了在「特別訂單」內的貨品貨存數量。" } }, { "doc_id": 163, "seg_id": 331, "translation": { "en": "33.21)On the evidence, the business dealings between MHM and Briga had all along involved a few specific types of goods. Therefore, there was nothing unusal for the ten types of goods listed in the email to be the same as the ten types of goods set out in Exhibit P40, and it does not mean that the goods referred to in the email must have been related to the goods under the “special order”.", "zh-HK": "33.21)根據證供，MHM 一直與 Briga 的生意往來都是牽涉某幾種貨物，故此電郵中列出的十種貨物與證物 P40 的十種貨物類形相同並不是特別的情況，但這並不表示電郵所指的貨物必然是與「特別訂單」的貨物有關。" } }, { "doc_id": 163, "seg_id": 332, "translation": { "en": "1.3)(6) Return of FT66 goods", "zh-HK": "1.3)(6) FT66 退貨的情況" } }, { "doc_id": 163, "seg_id": 333, "translation": { "en": "33.22)Judge Yau made the following ruling:", "zh-HK": "33.22)邱法官作出以下的裁決：" } }, { "doc_id": 163, "seg_id": 334, "translation": { "en": "“451.… Eventually MHM returned to Briga not only the problematic products of model FT66 but also many other goods which involved a total amount of more than $5,000,000. It follows that PW9’s testimony that the quantity of goods under the special order was too much for MHM is honest and entirely reasonable.”", "zh-HK": "「451. ……最終 MHM 退給 Briga 的貨不單只是出現了問題的 FT66 型號產品，其他退給 Briga 的產品也不少，總數達五百多萬。由始可見，控方第九證人指特別訂單的貨對 MHM 來說是太多的證供是誠實和完全合理的。」" } }, { "doc_id": 163, "seg_id": 335, "translation": { "en": "33.23)The 2nd applicant submits that, in making this ruling, Judge Yau had forgotten PW9’s evidence. Most of the goods that he eventually did not take and had to return to Briga were FT66. FT66 failed because there were problems with the design. Although PW9 said that the goods returned also included LG22 apart from FT 66, he clarified that most of the goods returned were FT66.", "zh-HK": "33.23)第二申請人指邱法官作出這個裁決時忘記了控方第 九證人的證據。他最終沒有提取及需要退回給 Briga 的大部分貨物是 FT66。FT66 失敗的原因是設計上的問題。雖然控方第九證人說退貨之中除了 FT66 還有 LG22，但他澄清大部分已退還的貨物是 FT66。" } }, { "doc_id": 163, "seg_id": 336, "translation": { "en": "33.24)We do not think this submission can assist the 2nd applicant. It was in light of the circumstances of the return of goods that Judge Yau ruled that PW9’s testimony that the goods under the “special order” were too much for MHM was true and reasonable. However, this was not the sole reason for supporting PW9’s evidence. Judge Yau had also taken into account the following: the transactions between the two parties during 2002-2003 amounted only to approximately $3,000,000, whereas their business dealings in the year of 2003-2004 amounted to approximately $6,000,000. However, this was because, with the outbreak of SARS in 2003, MHM had to purchase more air purification products. Subsequently the epidemic came under control, and so PW9 simply did not have to purchase from Briga goods to the value of as much as $9,000,000 or so. It was also on this basis that Judge Yau found what PW9 had said reasonable.", "zh-HK": "33.24)本庭不認為這個論點可以協助第二申請人。邱法官根據退貨的情況來裁決控方第九證人指「特別訂單」的貨對 MHM 來說是太多的證供是真實及合理的。但這並不是支持控方第九證人證供的唯一原因。邱法官亦有考慮雙方在 2002 年至 2003 年的交易只是約 $3,000,000。到了 2003 年至 2004 年度，雙方的生意額約 $6,000,000，但這是因為 2003 年發生了非典型肺炎疫症，令到 MHM 需要多訂購淨化空氣有關的產品，之後疫症受到控制，故此控方第九證人根本是無需要向 Briga 購買約 $9,000,000 的貨物。邱法官亦根據這點裁定控方第九證人所說的話是合理的。" } }, { "doc_id": 163, "seg_id": 337, "translation": { "en": "1.3)(7) Defence Exhibit D87", "zh-HK": "1.3)(7) 辯方證物 D87" } }, { "doc_id": 163, "seg_id": 338, "translation": { "en": "33.25)In respect of Defence Exhibit D87, Judge Yau had this to say:", "zh-HK": "33.25)邱法官就辯方證物 D87 這樣說：" } }, { "doc_id": 163, "seg_id": 339, "translation": { "en": "“452. PW9 did not admit that the 3rd defendant had informed him via Defence Exhibit D87 that delivery of the stock for the special order could be taken. According to the second agreed facts, Defence Exhibit D87 was seized from PW9’s home. It was a document faxed to MHM and read as follows: ‘Dear Lewis, please see attached is an updated status of our inventory on hand for special order. These inventory are ready and can be shipped at any time. If your want to have shipment, please contact me directly.’ PW9 said he could not recall having received this email. The email was dated 15 May 2005, and given the long lapse of time, it is not surprising that PW9 could no longer remember it. PW9 admitted that MHM had issued the purchase order to Briga upon the 2nd defendant’s request. PW9 also pointed out that MHM could take delivery of the goods for this purchase order, so it was not necessary for him to lie regarding whether or not the 3rd defendant had informed him by fax that delivery of the goods for the special order could be taken. What PW9 said is undoubtedly true. It is worth noting that in this email the goods concerned were described as ‘our inventory’ and not MHM’s inventory.”", "zh-HK": "「452. 控方第九證人不承認第三被告人曾以辯方證物 D87 通知他特別訂單的存貨可提取。根據第二份事實確認書，辯方證物 D87 是在控方第九證人的家中撿獲。它是一張傳真到 MHM 的文件，內容是這樣的，“Dear Lewis, please see attached is an updated status of our inventory on hand for special order. These inventory are ready and can be shipped at any time. If your want to have shipment, please contact me directly.” 控方第九證人說已忘記收過這電郵。這電郵上寫的日期是 2005 年 5 月 15 日，控方第九證人忘記了它，一點也不出奇，因為相隔的時間實在太長了。控方第九證人承認 MHM 應第二被告人要求向 Briga 發出了購貨單。控方第九證人也指出，MHM 是可提取這購貨單的貨，因此他沒有必要就第三被告人有沒有以傳真通知他特別訂單的貨可提取一事撒謊。毫無疑問，控方第九證人說的是實話。有一點值得注意的，就是在這電郵中有關的貨物被形容為 『our inventory』，而非 MHM 的 inventory。」" } }, { "doc_id": 163, "seg_id": 340, "translation": { "en": "33.26)The 2nd applicant suggests that the only factor that Judge Yau had to take into account was that in 2005 PW9 was informed via fax issued by the 3rd defendant that the goods under the “special order” were ready and MHM could take delivery of them at any time. Whether he remembered this fax now was not important.", "zh-HK": "33.26)第二申請人說邱法官唯一需要考慮的只是控方第九證人在 2005 年曾經透過第三被告人發出的傳真，獲告知「特別訂單」的貨物已經預備好及 MHM 可以隨時提取該貨物。至於他現在是否記得這傳真並不是重點。" } }, { "doc_id": 163, "seg_id": 341, "translation": { "en": "33.27)We fail to understand the 2nd applicant’s argument because, as can be seen from the transcripts, what the 2nd applicant asked PW9 was whether he had any recollection of having received this fax.", "zh-HK": "33.27)本庭不明白第二申請人的論點，因為從謄本看到，第二申請人向控方第九證人所提出的問題就是他是否有印象收過這個傳真。" } }, { "doc_id": 163, "seg_id": 342, "translation": { "en": "1.3)(8) PW9’s evidence was unclear and inconsistent", "zh-HK": "1.3)(8) 控方第九證人供詞不清晰及前後不一" } }, { "doc_id": 163, "seg_id": 343, "translation": { "en": "33.28)Judge Yau made the following comments on PW9’s testimony:", "zh-HK": "33.28)邱法官就控方第九證人的證供有這樣的評論：" } }, { "doc_id": 163, "seg_id": 344, "translation": { "en": "“453.At the outset of his testimony, PW9 gave an impression of being not serious and his evidence appeared to be perfunctory. I do not consider it fair to criticize him for that because he was then testifying against his trading partners and friends. On the evidence, at the time of the present trial, MHM and Daka group were still having business dealings, and this would easily add to PW9’s sense of uneasiness when he gave evidence. It was therefore not surprising for PW9 to behave as he did. However, following the court’s explanation, PW9 became serious and smoothly completed giving his evidence. ”", "zh-HK": "「453.控方第九證人最初作供的時候，他的態度給人一個不認真的感覺，而他的證據顯得敷衍。本席認為這是很難責怪他的，因為他正在指證他生意上的貿易夥伴及朋友。根據案中的證據，於審訊的時候MHM及特嘉集團仍然有生意來往，這更容易令到控方第九證人作供時感覺不自然，因此控方第九證人有這個表現一點也不出奇。但經過法庭向控方第九證人解釋後，第九證人的態度變得認真及順利地完成了他的證供。」" } }, { "doc_id": 163, "seg_id": 345, "translation": { "en": "33.29)The 2nd applicant submits that even after the explanation by the court, PW9 was still vague and self-contradictory in his evidence. We find that this is within the ambit of Judge Yau’s power to make findings of fact. There was also other evidence in the present case in support of what PW9 said.", "zh-HK": "33.29)第二申請人指出，當邱法官向控方第九證人引示後，他的證供仍然是含糊及矛盾的。本庭認為這是屬於邱法官裁定事實的權力範圍。本案亦有其他證據支持控方第九證人的證供。" } }, { "doc_id": 163, "seg_id": 346, "translation": { "en": "1.3)(9) Detailed arguments on alleged problems with PW9’s testimony", "zh-HK": "1.3)(9) 控方第九證人供詞不妥的詳細論點" } }, { "doc_id": 163, "seg_id": 347, "translation": { "en": "1.3)(9)(i) Reward of $100,000", "zh-HK": "1.3)(9)(i) $100,000 的獎償" } }, { "doc_id": 163, "seg_id": 348, "translation": { "en": "33.30)The 2nd applicant submits that PW9’s evidence on whether the $100,000 was a rebate or reward was inconsistent and vague. According to his evidence in examination-in-chief, at the early stage when he discussed the “special order” with the 2nd applicant, one of the conditions being discussed was a “rebate programme” which was also called “reward”. However, further down the course of the examination-in-chief, PW9 explained that the $100,000 that the 2nd applicant had given him was a “reward” because the “special order” had “troubled” him. Under cross-examination by the 1st applicant, PW9 said that the $100,000 was a condition which had already been discussed at an early stage — i.e. a “reward” upon the listing of DDL. While being cross-examined by the 2nd applicant, PW9 clarified that the discussion on the condition of “rewarding rebate programme” had not been concluded.", "zh-HK": "33.30)第二申請人指，控方第九證人關於 $100,000 的證供是 rebate (回佣)還是 reward (獎償)，前後不一致及模糊。根據控方第九證人的主問證言，他早初與第二申請人商討「特別訂單」條件包括了一個 ‘rebate programme’ 亦叫 ‘reward’ /獎金。但其後仍於主問時控方第九證人卻解釋第二申請人給他的 $100,000 是「獎勵」，因為「特別訂單」事項「麻煩」了控方第九證人。控方第九證人在第一申請人盤問下，說該 $100,000 是一個早已商討了的條件—即 DDL 上市後之「獎金」。控方第九證人在第二申請人盤問時澄清根本 ‘rewarding rebate programme’ 的條件並沒有商討好。" } }, { "doc_id": 163, "seg_id": 349, "translation": { "en": "33.31)We see nothing in this submission. Obviously, PW9’s testimony had not mixed up the “rebate programme” and the $100,000 reward. He denied that the $100,000 given to him by the 2nd applicant was a reward to him for placing a one-off order for the goods for that year. This is a finding of facts.", "zh-HK": "33.31)本庭不認為這是一項充分的理據。控方第九證人的證供明顯地是沒有將 ‘rebate programme’ 與 $100,000 的獎金混淆。他是否認第二申請人給他的 $100,000 是用作獎勵他將該年貨物一次過落單。這是一項事實的裁決。" } }, { "doc_id": 163, "seg_id": 350, "translation": { "en": "1.3)(9)(ii) Value and quantity of the goods", "zh-HK": "1.3)(9)(ii) 貨物的金額和數量" } }, { "doc_id": 163, "seg_id": 351, "translation": { "en": "33.32)The 2nd applicant submits that although PW9 claimed in examination-in-chief that the goods in the amount of $10,000,000 for the “special order” were too much and unrealistic, his evidence under cross-examination revealed the goods and the quantities that MHM had previously purchased from DDL, and it showed that the value and quantity of goods under the “special order” were also reasonable.", "zh-HK": "33.32)第二申請人說雖然控方第九證人在主問時聲稱「特別訂單」的一千萬元貨物太多，而且不切實際，但他在盤問下的證供顯示 MHM 之前向 DDL 所購買的貨物和數量，這反映「特別訂單」的金額和數量亦是合理的。" } }, { "doc_id": 163, "seg_id": 352, "translation": { "en": "33.33)We do not agree. PW9 said that 30% to 40% of the goods under the “special order” were reasonable. According to Exhibit P40, the two types of new products that MHM purchased from Briga, namely LG22 and FT66, cost $7,638,742.80, which represented 73% of the total amount payable for the goods. Therefore, it was reasonable for PW9 to insist that the goods for this “special order” were too much.", "zh-HK": "33.33)本庭不同意這說法。控方第九證人說「特別訂單」其中三至四成的貨物是合理的。根據證物 P40， MHM 向 Briga 購買的兩種新產品，即　LG22　及　FT66　為 $7,638,742.80，這佔訂單的七成三貨款，故此控方第九證人堅持這「特別訂單」的貨是太多是合理的。" } }, { "doc_id": 163, "seg_id": 353, "translation": { "en": "1.3)(9)(iii) Sales agreement", "zh-HK": "1.3)(9)(iii) 銷售協議" } }, { "doc_id": 163, "seg_id": 354, "translation": { "en": "33.34)The 2nd applicant submits that DDL had signed a distributorship sales agreement upon PW9’s request, and that PW9 had previously promised to try his best to sell goods to the value of $10,000,000 in 2004-2005.", "zh-HK": "33.34)第二申請人指 DDL 是應控方第九證人的要求簽署了一份分銷售協議，而他早前已承諾在 2004 年至 2005 年會儘量銷售一千萬元的貨物。" } }, { "doc_id": 163, "seg_id": 355, "translation": { "en": "33.35)PW9 sent an email to the 2nd applicant on 11 February 2004, requesting him to sign a distributorship agreement. He said that the agreement concerned was subsequently signed, but he could not remember if yet another agreement was signed thereafter. Therefore, this does not assist the 2nd applicant. In any event, we are of the view that the content of this email supported PW9’s suggestion that the quantity of goods under the “special order” was unreasonable. PW9 pointed out in the email that if they were to take out a letter of credit in the amount of $3,000,000 in favour of the other party, they would have to reinforce their collateral with the bank by putting in at least $2,000,000 as cash deposit and discharging the existing “trust receipt”. Taken as a whole, the content of the email clearly showed that PW9 was merely intending to assist the 2nd applicant, and this implied that he simply had no need to purchase so many goods. In addition, a distributorship agent agreement signed by the two parties on 25 February 2003 showed that the price fixed by the parties for FT66 at that time was $300, and the price of FT66 as set out in an appendix added in on 30 December 2003 was merely $351. However, the price tripled in the “special order”. All these served as evidence in support of what PW9 said.", "zh-HK": "33.35)控方第九證人在 2004 年 2 月 11 日發電郵給第二申請人，要求對方簽署一份分銷協議。他說之後是有簽署有關協議，但他不記得之後有沒有再簽署一份跟進的協議，故此這一點不能協助第二申請人的論點，但無論如何，本庭認為這電郵的內容支持控方第九證人聲稱「特別訂單」的數目是不合理的。在電郵內，控方第九證人指出，若果他們要開一份 $3,000,000 的信用狀給對方，他們需要增加他們在銀行的擔保。他們需要最少存入 $2,000,000 作為現金存款及需要清還現時的「信託收據」(trust receipt)。整份電郵的內容明顯地顯示控方第九證人只是去協助第二申請人。言外之意是他根本不需要購買那麼多的貨物。另外，從一份雙方在 2003 年 2 月 25 日簽署的分銷商協議看到當時雙方就 FT66 所定的價錢為 $300，在 2003 年 12 月 30 日所加入的附件 FT66 的價錢仍只是 $351，但在「特別訂單」內，這價錢卻加高達三倍。這些證據皆是支持控方第九證人的說法。" } }, { "doc_id": 163, "seg_id": 356, "translation": { "en": "1.3)(9)(iv) Participation of PW9", "zh-HK": "1.3)(9)(iv) 控方第九證人的參與" } }, { "doc_id": 163, "seg_id": 357, "translation": { "en": "33.36)The 2nd applicant argues that PW9 had all along taken part in the discussion on the variation of price and quantities of goods under the “special order” and these matters were not, as PW9 said in examination-in-chief, decided by DDL/the 2nd applicant.", "zh-HK": "33.36)第二申請人聲稱，控方第九證人一直有參與商討「特別訂單」更改價錢及貨物數量，而並不是如他在主問時所說這些事情只是由 DDL/第二申請人作出決定。" } }, { "doc_id": 163, "seg_id": 358, "translation": { "en": "33.37)As the respondent has pointed out, according to PW9’s testimony, he had not on his own initiative suggested varying the purchase orders but had merely given advice and suggestions on taking out certain types of goods and adding in certain goods when the other party suggested varying the purchase orders. We do not agree that the evidence referred to had undermined PW9’s veracity or credibility.", "zh-HK": "33.37)正如答辯人所說，根據控方第九證人的證供，他並沒有主動提出更改購貨單，他只是在對方主動提出修改購貨單時給予意見，建議取消某類貨品及加入某些貨品。本庭不認同有關的證據削弱控方第九證人的誠信。" } }, { "doc_id": 163, "seg_id": 359, "translation": { "en": "1.3)(9)(v) MHM took delivery of goods from the “special order”?", "zh-HK": "1.3)(9)(v) MHM 從「特別訂單」提貨？" } }, { "doc_id": 163, "seg_id": 360, "translation": { "en": "33.38)The 2nd applicant submits that, although PW9 said in examination-in-chief that he had no obligation regarding the goods under the “special order”, his testimony under cross-examination revealed that the goods of which MHM had taken delivery throughout 2004 and 2005 came from the “special order”. The 2nd applicant relies on a number of emails dispatched by MHM in support of his argument. The 2nd applicant submits that the answers given by PW9 in examination-in-chief were incorrect.", "zh-HK": "33.38)第二申請人指，雖然控方第九證人在主問時說他對「特別訂單」的貨物沒有任何責任，但在盤問下，他的證供卻顯示由 2004 年至 2005 年 MHM 一直所提取的貨物是來自「特別訂單」。第二申請人引用多份由 MHM 發出的電郵支持其論點。第二申請人認為控方第九證人在主問時所給的答案是不正確的。" } }, { "doc_id": 163, "seg_id": 361, "translation": { "en": "33.39)We agree that according to PW9’s evidence, although he said he had no recollection, he had not denied that the goods of which MHM had taken delivery came from the “special order”. However, in our view, of greater importance is that the way in which MHM took delivery of the goods served to support PW9’s suggestion that the “special order” was in fact a bogus transaction.", "zh-HK": "33.39)本庭同意根據控方第九證人的證供，雖然他說他記不起，但他不否定 MHM 所提取的貨物來自「特別訂單」。但本庭認為更重要的是 MHM 提取貨物的方式支持控方第九證人所說「特別訂單」其實是一個虛假的交易。" } }, { "doc_id": 163, "seg_id": 362, "translation": { "en": "33.40)According to the evidence provided by PW11, one alphabet was added to the end of the invoice number of each commercial invoice for the “special order” so that the invoice became a commercial invoice issued by Briga upon delivery of goods, i.e. what have been referred to as “A, B, C, D …” invoices. Judge Yau briefly described how MHM paid for these invoices:", "zh-HK": "33.40)根據控方第十一證人所提供的證據，他們以「特別訂單」的商業發票的編號後加一個英文字母作為出貨時 Briga 開出的商業發票，即是本案所稱的「A,B,C,D….」發票。邱法官簡述 MHM 支付這些發票的方法：" } }, { "doc_id": 163, "seg_id": 363, "translation": { "en": "“393.PW9 said that MHM had only taken delivery of the goods relating to the 14 commercial invoices comprising Prosecution Exhibits P75-P102 and the corresponding 14 local delivery notes. Those invoices were numbered BIV04003-5(A) to BIV0403003-5(N), IV0405067(A) and IV0405067(B), and bore various dates between June 2004 and November 2005. These delivery notes all bore MHM’s company chop which was affixed by MHM upon receipt of the goods. PW9 paid by cheques and made records thereof in MHM’s accounts. Some of the cheques comprise Prosecution Exhibits P137 to P157. The invoice number of the commercial invoice to be settled by each particular cheque was written down on the reverse side of the cheque. The commercial invoices settled were BIV0403003-5(A) to BIV0403003-5(G). Each commercial invoice was settled by three cheques for, respectively, 40%, 30% and 30% of the amount payable for goods, and the dates of the three cheques were one month apart. PW9 also pointed out that the $240,000 cheque in Prosecution Exhibit P465 was also a cheque he had used to settle these commercial invoices.”", "zh-HK": "「393.控方第九證人說，MHM只提取了控方證物P75至控方證物P102中的共十四張的商業發票及相關的十四張送貨單(local delivery note)中的貨物，相關發票編號由BIV04003-5(A) 至BIV0403003-5(N) 及IV0405067(A) 和IV0405067(B)，而日期由2004年6月至2005年11月都有。這些送貨單都有MHM收貨時蓋上的公司印。控方第九證人以支票付款及將其紀錄了在MHM的賬目內。其中的一些支票是控方證物P137至控方證物P157。每張支票背後都寫上所支付的商業發票編號，而所支付的是由BIV0403003-5(A) 至BIV0403003-5(G)。每張商業發票都以三張支票支付，分別是貨款的四成、三成及三成，而每張支票日期都相差一個月。控方第九證人亦指出，控方證物P465中的那張二十四萬元支票也是他用來支付這些商業發票的。」" } }, { "doc_id": 163, "seg_id": 364, "translation": { "en": "33.41)If PW9 had already paid the deposit and made payment for the goods of the “special order”, then he would not have made payment for goods upon taking delivery thereof. In addition, although the price of FT66 as stated in the “special order” was $936, according to the “A, B, C, D …” invoices, i.e. invoices in respect of genuine transactions, the price of FT66 was only about $429 or $409. This was also part of the other evidence which showed that the “special order” was not a genuine commercial transaction.", "zh-HK": "33.41)若果控方第九證人已就「特別訂單」的貨物付出了訂金及貨款，他提貨時便不會再另行繳付貨款。另外，雖然在「特別訂單」 FT66 的訂價為 $936，但根據「A,B,C,D….」發票，即是有真正交易的發票，FT66 的貨價只是約 $429 及 $409。這也是其他的證據支持「特別訂單」並非是一個真實的商業交易。" } }, { "doc_id": 163, "seg_id": 365, "translation": { "en": "1.3)(10) Bogus transaction", "zh-HK": "1.3)(10) 虛假交易" } }, { "doc_id": 163, "seg_id": 366, "translation": { "en": "1.3)(10)(i) No deposit no commitment", "zh-HK": "1.3)(10)(i) No deposit no commitment" } }, { "doc_id": 163, "seg_id": 367, "translation": { "en": "33.42)The 2nd applicant submits that Judge Yau incorrectly understood the concept of “no deposit no commitment” because he failed to consider the following evidence:", "zh-HK": "33.42)第二申請人認為邱法官沒有正確地理解 ‘no deposit no commitment’ 的概念，因為他沒有考慮以下的證據：" } }, { "doc_id": 163, "seg_id": 368, "translation": { "en": "(1)MHM had previously taken delivery of goods of the succeeding year by means of one single order.", "zh-HK": "(1)MHM 已前曾以一張訂單提取下年度貨物。" } }, { "doc_id": 163, "seg_id": 369, "translation": { "en": "(2)In response to PW9’s concerns over the “special order”, the 2nd applicant lent him money for paying the deposit and agreed that the unsold goods could be returned by way of “guarantee sales return”, an arrangement which had been made in the past.", "zh-HK": "(2)控方第九證人對「特別訂單」有憂慮，因此第二申請人借錢給他付訂金及同意若不能賣出所有貨物，便可以用‘guarantee sales return’ 形式退回，而這形式已往亦用過。" } }, { "doc_id": 163, "seg_id": 370, "translation": { "en": "(3)In fact, the goods of which MHM took delivery in 2004-2005 also came from the “special order”.", "zh-HK": "(3)事實上 04 至 05 年度 MHM 提取之貨物亦是來自「特別訂單」。" } }, { "doc_id": 163, "seg_id": 371, "translation": { "en": "(4)Except for FT66 and LG22, delivery of all other goods had been taken.", "zh-HK": "(4)除 FT66 及 LG22 以外其餘貨物已全部被提取。" } }, { "doc_id": 163, "seg_id": 372, "translation": { "en": "33.43)We do not agree. The unreasonable aspects of the transactions concerned have been mentioned above. Under the agreement between the parties, MHM had no obligation whatsoever to take delivery of the goods under the “special order”, however, Briga had to put on record that the production of the goods under the “special order” was completed before 31 March 2004, and the profits of the “special order” were included in the turnover of Daka Designs for 2003-2004. All these acts simply went against economic and management principles and would never be done in normal commercial transactions.", "zh-HK": "33.43)本庭不同意這說法。上文已經提到有關交易不合理之處。既然根據雙方協議 MHM 根本沒有責任去提取「特別訂單」的貨物，但 Briga 卻要在紀錄上標示 2004 年 3 月 31 日之前將「特別訂單」的貨物完成生產。並將這「特別訂單」的利潤記賬於 Daka Designs 於 2003 至 2004 年度營業額內。這一切行為根本是完全不合乎經濟及管理原則，及在正常的商業交易中一定不會發生的。" } }, { "doc_id": 163, "seg_id": 373, "translation": { "en": "33.44)The 2nd applicant attempts to explain the existence of the concept of “no deposit no commitment” by reference to PW9’s concerns over the “special order”. The 2nd applicant submits that, as PW9 was concerned about the “special order”, the 2nd applicant lent him money to enable him to pay the deposit and also agreed that those goods which MHM was unable to sell could be returned by means of “guarantee sales return”.", "zh-HK": "33.44)第二申請人企圖以控方第九證人對「特別訂單」的憂慮來解釋為何會有 ‘no deposit no commitment’ 的概念。第二申請人指出是因為控方第九證人對「特別訂單」有憂慮，因此第二申請人借錢給他付訂金及同意若 MHM 不能賣出所有貨物，便可以用 ‘guarantee sales return’ 形式退回。" } }, { "doc_id": 163, "seg_id": 374, "translation": { "en": "33.45)In our view, this argument rather serves to strengthen the conclusion that the “special order” could not possibly be a normal transaction. MHM was not required to pay any deposit for the purchase orders it issued, and on the other hand, it was not obliged to sell those goods because the “guarantee sales return” allowed MHM to return any goods which it was unable to sell. This showed that MHM was not required to bear any risk at all in respect of this purchase order, and this was a commercial transaction which Judge Yau said could not possibly exist.", "zh-HK": "33.45)本庭認為這論點更顯示這「特別訂單」沒有可能是一個正常交易。MHM 無須就它發出的購貨單付出任何訂金，另一方面它亦不需要有任何責任將該些貨物售出因為當貨物沒有賣出時，它是可以根據 ‘guarantee sales return’ 退回，這正正顯示 MHM 根本不需要就這購貨單承擔任何風險，這亦是邱法官指沒有可能存在的商業交易。" } }, { "doc_id": 163, "seg_id": 375, "translation": { "en": "1.3)(10)(ii) Commercial invoices", "zh-HK": "1.3)(10)(ii) 商業發票" } }, { "doc_id": 163, "seg_id": 376, "translation": { "en": "33.46)The 2nd applicant submits that Judge Yau erroneously failed to consider that the “special order” as a whole involved five commercial invoices, namely BIV0403001 (D91), P42, P43, P44 and BIV0405005. It is submitted that PW9 had taken delivery of the goods set out in the first invoice (Exhibit D91) and paid for them, so there was no problem. The fifth invoice was not recorded in the accounts for the year of 03-04 [see P66] and hence did not affect the annual report of DDL for the fiscal year ended 31 March. In considering whether the “special order” was a genuine transaction, Judge Yau should have considered the “special order” in its entirety, including Exhibit D91 and BIV0405005, the two orders which did not have any problem and which had a significant bearing on the question of whether the transaction was genuine. Had the “special order” been bogus, it would not have been necessary for PW9 to take delivery of the goods set out in Exhibit D91 and pay for them, nor would it have been necessary to pay for the goods set out in BIV0405005 after 31 March 2004.", "zh-HK": "33.46)第二申請人指出邱法官錯誤地沒有考慮到整個「特別訂單」包含了五張商業發票，即 BIV0403001 (D91), P42, P43, P44 及 BIV0405005。第二申請人認為控方第九證人提取了第一張單，(證物 D91) 的貨物及支付了貨款；所以沒有任何問題，而第五張發票不是入帳於 03 至 04 年度[見：P66]，因此並不會影響 DDL 年截至 3 月 31 日止財政年度的年報。在考慮「特別訂單」是否真實交易時，邱法官應考慮到整個「特別訂單」，即要包括證物 D91 及 BIV0405005 — 這兩張沒有任何問題存在的訂單，因對交易是否真實的問題絕對有影響。若果「特別訂單」是虛假的，控方第九證人沒有必要提取證物 D91 之貨物及支付貨款，亦沒有需要於 04 年 3 月 31 日後支付 BIV0405005 之貨款。" } }, { "doc_id": 163, "seg_id": 377, "translation": { "en": "33.47)Judge Yau made the following ruling on Exhibit D91:", "zh-HK": "33.47)邱法官就證物 D91 作出以下的裁決：" } }, { "doc_id": 163, "seg_id": 378, "translation": { "en": "“474.… The defence also points out that MHM had recorded in its accounts the payments already made in settlement of commercial invoice BIV0403001 (i.e. Exhibit D91). This in fact does not contradict PW9’s testimony because PW9 did admit that MHM had in fact taken delivery of the goods set out in this commercial invoice and paid for them. It was at once natural and proper for MHM to record these items in its accounts.”", "zh-HK": "「474.……辯方也指MHM就商業發票BIV0403001(即證物D91)已支付的貨款入賬。這其實與控方第九證人的證供沒有矛盾，因為控方第九證人承認MHM確實地提取了這商業發票的貨及支付其貨款。MHM把這些事項記在MHM的賬內是很自然的事，和沒有任何的不妥。」" } }, { "doc_id": 163, "seg_id": 379, "translation": { "en": "33.48)The particulars of these five commercial invoices are as follows:", "zh-HK": "33.48)這五張商業發票的詳情是" } }, { "doc_id": 163, "seg_id": 380, "translation": { "en": "33.49)We do not think that the 2nd applicant’s argument weakens the ruling made by Judge Yau. The respondent’s position was that the “special order” did not include the first and fifth invoices. However, even if the goods relating to these two invoices were part of the goods under the “special order”, it does not mean that the whole “special order” was genuine. The second, third and fourth invoices involved a total amount of $8,976,619.56, which constituted a major portion of the amount of $10,381,947.20 as stated in the “proforma invoice” issued by Briga (Exhibit P40) .", "zh-HK": "33.49)本庭不認為第二申請人的論點削弱邱法官的裁決。答辯人的立場是「特別訂單」不包括第一及第五張發票。但就算這兩張發票的貨物是屬於「特別訂單」的貨物，這也不表示整份「特別訂單」是真實的。第二、第三及第四張發票的款額為$8,976,619.56，這已經是佔 Briga 所發出的「預開發票」(證物 P40) $10,381,947.20 金額的大多數。" } }, { "doc_id": 163, "seg_id": 381, "translation": { "en": "33.50)PW9 said that the goods in respect of the second, third and fourth invoices were not delivered to him. It was the 2nd applicant’s position that PW9 had “accepted” but not “taken delivery of” those goods. According to another “goods receipt acknowledgement” dated 31 March 2004, the goods referred to in the confirmation document that MHM issued to Briga were received on 31 March 2004 and the risks and ownership of the goods were passed to MHM on the same day:", "zh-HK": "33.50)控方第九證人說第二、第三及第四張發票的貨物沒有送給他。第二申請人的立場是控方第九證人有「接受」這些貨物，但沒有「提取」。根據另一份 2004 年 3 月 31 日的「收貨確認書」， MHM 對 Briga 確認的文件所指的貨物已經在 2004 年 3 月 31 日收到及貨物的風險及主權亦於當日轉給 MHM：" } }, { "doc_id": 163, "seg_id": 382, "translation": { "en": "“We hereby confirmed that the following goods are received by us and the risks and ownership of the goods are passed to us on 31 March 2004. In addition, we have inspected the quality and condition of these goods and we are satisfied with their standard.”", "zh-HK": "‘We hereby confirmed that the following goods are received by us and the risks and ownership of the goods are passed to us on 31 March 2004. In addition, we have inspected the quality and condition of these goods and we are satisfied with their standard.’" } }, { "doc_id": 163, "seg_id": 383, "translation": { "en": "33.51)The goods involved in that document constituted 90% of those in the “special order”. If HMH was not required by the agreement between the two parties to assume any responsibility for the goods, it would simply not have been necessary for Briga to pass the goods on to HMH on 31 March 2004, and the reference to “risks” and “ownership” in the document would not have served any real purpose. This is precisely another reason for supporting Judge Yau’s ruling that the “special order” was a bogus transaction.", "zh-HK": "33.51)該文件涉及的貨物佔「特別訂單」的 90%，若果根據雙方的協議 MHM 根本是無須要對這些貨物負上責任的話，Briga 根本是不需要在 2004 年 3 月 31 日將有關的貨物轉交給 MHM 文件所提的‘風險’及‘主權’亦只是形同虛設。這正好是另外一個原因支持邱法官認為「特別訂單」是虛假交易的裁決。" } }, { "doc_id": 163, "seg_id": 384, "translation": { "en": "33.52)The 2nd applicant submits that Judge Yau said he “[was] not sure if production of all the goods under the ‘special order’ had been completed”. This conclusion is essentially in line with what defence said. It was only after 31 March 2004 that BIV0405005 was issued and recorded in the accounts. Had the “special order” been bogus, there would have been no need to wait until the goods had been produced before issuing BIV0405005 after 31 March 2004. Therefore, it was reasonable and consistent with the defence case that the production of the goods had not been wholly completed during the period specified by the prosecution. Furthermore, Judge Yau said that “it was neither possible nor necessary [for DDL] to have the production of the goods under the ‘special order’ completed by 31 March 2004” because, if the “special order” was a normal commercial transaction, MHM would only take delivery of the goods and pay for them in stages, and hence there would not be any urgent need for MHM to have the products under the “special order” completed by 31 March 2004. However, according to PW9’s testimony, the “special order” did not mark the first occasion on which MHM and DDL ordered goods for the whole year by way of one big order. MHM had in the past ordered goods for the coming year by placing one big order with DDL; besides, other conditions of or conditions that had been negotiated for the “special order”, namely the “rebate programme” and the “guaranteed sales return” by which unsold goods were returned, had also existed previously. As a matter of fact, the last invoice for the “special order”, namely BIV0405005, was issued after 31 March 2004, and this showed that DDL had not rushed to complete the production of the goods under the “special order” by 31 March 2004.", "zh-HK": "33.52)第二申請人說邱法官說他「不肯定是否所有『特別訂單』的貨物都完成生產」。這結論根本與辯方的說法一致。BIV0405005 只於 2004 年 3 月 31 日後發出及入帳。若「特別訂單」是虛假的，BIV0405005 亦不用等到貨物被生產後於 2004 年 3 月 31 日後才發出。因此，貨物還未在控方所指的相關期間全部完成生產是合理及與辯方案情吻合的。再者，邱法官指 DDL 「沒有可能及沒有必要 2004 年 3 月 31 日完成『特別訂單』貨物的生產」，因「特別訂單」是一張正常的商業交易的單，MHM 只會逐步提取貨物及支付貨貸；所以 MHM 無須急於把「特別訂單」內的貨於 2004 年 3 月 31 日前完成。但根據控方第九證人之證言，「特別訂單」並非第一次 MHM 與 DDL 以一張大單形式去訂全年的貨物。除了 MHM 以往已試過以一張大單向 DDL 訂購來年的貨物之外，其他「特別訂單」條件或有商討的條件以往亦發生過：‘rebate programme’ 及 ‘guaranteed sales return’ 退還不能賣出的貨物。而實質上，「特別訂單」的最後一張發票 BIV0405005 是於 2004 年 3 月 31 日後才發出，顯示到 DDL 亦沒有將所有「特別訂單」內的貨趕於 2004 年 3 月 31 日前完成生產。" } }, { "doc_id": 163, "seg_id": 385, "translation": { "en": "33.53)We do not agree. We have dealt with the relevant issues earlier on in this judgment. In his judgment Judge Yau thoroughly discussed the issue of whether the “special order” was a genuine transaction. We agree with Judge Yau’s ruling and his reasoning completely defeated the defence of “genuine transaction”.", "zh-HK": "33.53)本庭不同意這論點。本庭已在上文處理有關爭論。邱法官在其判案書詳細討論「特別訂單」是否真實交易此論點。本庭認同邱法官的裁決，他所持的理據完全摧毀這「真實交易」的辯解。" } }, { "doc_id": 163, "seg_id": 386, "translation": { "en": "“478.My conclusion is that Daka group had in fact proceeded to produce the goods for the special order. Although I am not sure if production of all the goods under the special order had been completed, I accept the defence evidence that a major portion of the goods under the special order had been produced. However, as the prosecution pointed out in the final submission, whether Daka group had finished the production of the goods for the special order is not the key issue in the present case. As I see it, the most important question is whether this special order was a bogus transaction that came into existence for the purpose of inflating the turnover of Daka Designs in the year of 2003-2004.", "zh-HK": "「478.本席的結論是特嘉集團的確有進行生產特別訂單的貨物。雖然本席不肯定是否所有特別訂單的貨物都完成生產，但接受辯方有關特別訂單的不少貨物都已經生產了的證供。但正如控方在最後陳詞中所指出，特嘉集團是否就特別訂單的貨物完成生產並非本案的重點。本席認為最重要的是這特別訂單是否一個為了提高Daka Designs 於 2003至2004年度的營業額而出現的虛假交易。" } }, { "doc_id": 163, "seg_id": 387, "translation": { "en": "479.PW9’s testimony clearly pointed out that MHM had no obligation whatsoever to take delivery of the goods under the special order and that MHM would take delivery of the goods only as and when necessary. Under such circumstances, although Daka had the special order in its hands, it could not possibly proceed to produce the goods right away in the absence of MHM’s request to take delivery. It should be noted that in the course of production, Daka group had to put in a lot of manpower and resources. In case MHM had not requested to take delivery of the goods, Daka group would even have to find a place for storing them upon completion of their production. This is exactly what happened in the present case. On the evidence, Daka group had to borrow the premises of T&K to keep the goods which had been produced for the special order. Obviously, such hasty production went against economic and management principles and would never happen in normal commercial transactions.", "zh-HK": "479.控方第九證人的證供清楚地指出，MHM完全沒有責任提取特別訂單中的貨物，及MHM只會在有需要時才會提取所需要的貨品。在這情況下特嘉雖然有這特別訂單在手，但也沒有可能在MHM沒有提出提貨時就立刻為這特別訂單進行生產。要知道，在生產過程中，特嘉集團要投下很多人力和物力。基於MHM根本就沒有提出提貨，這些貨生產完成後，特嘉集團還要找地方儲存這些貨。這現象就正正在本案中發生。根據案中的證供，特嘉集團就要借用千基的地方去存放已生(產)了的特別訂單的貨物。很明顯，這樣急於進行生產，完全不合乎經濟及管理的原則，及在正常的商業交易中一定不會發生的。" } }, { "doc_id": 163, "seg_id": 388, "translation": { "en": "480. Another important point is that, as long as MHM did not take delivery of the finished products under the special order, Daka would not be able to obtain payment for these goods, and a large quantity of such goods would hoard within Daka group, as a result of which a lot of money would be locked up, and this would naturally create an adverse effect on the cashflow of Daka group. Such an unreasonable practice would not possibly exist if the special order was a normal commercial transaction.", "zh-HK": "480. 另一點重要的是，一天MHM不提取已完成的特別訂單貨物，特嘉就不能收取這些貨物的貨款，這無端令到特嘉集團囤積大量的貨物，其結果是令到特嘉集團的大批資金因為這些貨物的囤積而被積壓了，這對特嘉集團的財政周轉自然有一個壞的影響。如果特別訂單是一個正常的商業交易，根本沒有可能會出現這樣不合理的做法。" } }, { "doc_id": 163, "seg_id": 389, "translation": { "en": "481.Even assuming MHM did have an obligation to take delivery of the goods under the special order, it was neither possible nor necessary for Daka group to have the production of the goods under the special order completed by 31 March 2004. According to PW9’s testimony, for the purchase orders that the 2nd defendant had requested MHM to issue, no matter whether the price was $10 million as initially suggested or $8.9 odd million as finally issued by MHM (Prosecution Exhibit P60), MHM was ordering goods needed for a whole year. The 2nd defendant must have been very well aware of this because what he had asked PW9 to do was place a big order for the coming year, and this was the established trading practice between MHM and Daka group. If this was an order in relation to a normal commercial transaction, MHM would only take delivery of the goods and pay for them in stages within one year. Of course, the 2nd defendant would also have understood this. Under such circumstances, Daka group had no need at all to hastily complete production of the goods under the special order by 31 March 2004, and should instead wait for instructions from MHM so as to avoid putting itself in the situation described above, i.e. unnecessarily having goods hoarded and capital locked up.", "zh-HK": "481.就算當作MHM有責任去提取特別訂單的貨物，特嘉集團也沒有可能及沒有必要在2004年3月31日前完成特別訂單貨物的生產。根據控方第九證人的證供，第二被告人要求MHM 所發出的訂貨單，無論數額是最初提出的一千萬或MHM最後發出的八百九十多萬的訂貨單(控方證物P60)，這是MHM預訂全年所需要的貨物。第二被告人一定很清楚這一點，因為他要求控方第九證人做的是為來年的貨落一張大單，而這亦是MHM與特嘉集團之間的貿易一貫的做法。如果這是一張正常的商業交易的單，MHM也只會在一年內逐步提貨及支付貸款。第二被告人當然也一定會明白這一點。在這情況下，特嘉集團完全毋須急於把特別訂單內的貨於2004年3月31日之前完成，而應等待MHM的指示，以免陷於本席剛才所指的情況，即不必要地囤積貨物和積壓資金。" } }, { "doc_id": 163, "seg_id": 390, "translation": { "en": "482.However, Daka group approached the matter by treating the production of these goods as having been completed by 31 March 2004. According to PW11’s testimony, at a meeting regarding stocktaking, the 3rd defendant disclosed that auditors would conduct stocktaking in April 2004 and pointed out that the goods under the special order would be sold to the customer before 31 March 2004. He requested the relevant staff, including PW11, to input the information to the ATL computerized accounting system of Daka group to ensure the sales of goods under the special order were completed by 31 March 2004. This precisely indicated that Daka group had to fully complete production of the goods under this special order before 31 March 2004.", "zh-HK": "482.但特嘉集團的做法卻是把這些貨物是在2004年3月31日前完成生產來處理。根據控方第十一證人的證供，第三被告人在一個有關盤點的會議中透露，核數師會於2004 年 4 月進行盤點及指出特別訂單的貨會於 2004 年 3 月 31 日前賣給客人。他要求有關的員工，包括控方第十一證人把資料輸入特嘉集團的ATL電腦會計系統中，確保特別訂單在 2004 年 3 月 31 日前完成銷售。這正正表明特嘉集團是要在 2004 年 3 月 31 日前將這特別訂單的貨物全數完成生產。" } }, { "doc_id": 163, "seg_id": 391, "translation": { "en": "483.As the court previously indicated, it simply did not make any sense to do so. The purpose of so doing was plainly to ensure that the $8,900,000 involved in the special order would be included in the turnover of Daka Designs for the year of 2004 which ended at 31 March 2004 and would be published in the annual report for that year. Eventually, PW5 issued three commercial invoices on 23 March 2004, 29 March 2004 and 31 March 2004 respectively (i.e. Prosecution Exhibits P42, P43 and P44) for the total amount of $8,976,619.56 as alleged in the charge. Briga also issued another commercial invoice (i.e. Defence Exhibit D91). PW9 said that prior to 31 March 2004, he had only received the goods set out in Defence Exhibit D91 but not those set out in the three invoices marked as Exhibits P42, P43 and P44.", "zh-HK": "483.正如法庭較早前所指出，這是完全不合理的做法。這樣做的目的，毫無疑問是要確保特別訂單的八百九十萬元包括在 Daka Designs 截至 2004 年 3 月 31 日的 2004 年度的營業額中及在該年度的年報中發布出來。結果控方第五證人於 2004 年 3 月 23 日、 2004 年 3 月 29 日及 2004 年 3 月 31 日開出了三張商業發票(即控方證物P42、P43、P44)，總值就是控罪中所指的 8,976,619.56 元。碧嘉也開出了另外一張商業發票(即辯方證物D91)。控方第九證人指出他於 2004 年 3 月 31 日前只收過辯方證物D91中的貨物，但沒有收過證物P42、P43、P44這三張發票中的貨物。" } }, { "doc_id": 163, "seg_id": 392, "translation": { "en": "484.Pursuant to the 3rd defendant’s instructions, subsequent to the stocktaking exercise in April 2004, PW11 prepared a goods receipt acknowledgement (i.e. Prosecution Exhibit P64) covering the goods set out in these four commercial invoices and had the acknowledgement backdated to 31 March 2004. Although MHM had not received the goods set out in three of these commercial invoices, PW9 still signed the goods receipt acknowledgement upon Daka group’s request. PW9 even said that he had neither seen nor inspected the goods set out in these three invoices. This could not possibly happen if the special order was a normal transaction. The effect of this goods receipt acknowledgement was to ensure that the transaction to which this bogus special order related could be included in the turnover of Daka Designs for the year of 2004 which ended at 31 March 2004.”", "zh-HK": "484.控方第十一證人在第三被告人的指示下，在2004 年 4 月的盤點後準備了一份收貨確認書(即控方證物P64)，當中包括了這四張商業發票的貨物，並把收貨確認書的日期追溯為 2004 年 3 月 31 日。雖然MHM沒有收取其中三張商業發票的貨物，控方第九證人仍在特嘉集團的要求下簽了收貨確認書。控方第九證人更指出，他沒有見過這三張發票的貨，也沒有驗過貨。如果這特別訂單是正常交易的話，根本就不可能會出現這個情況。這收貨確認書的作用是要確保這虛假的特別訂單的交易能夠包括在Daka Designs截至 2004 年 3 月 31 日的 2004 年度的營業額內。」" } }, { "doc_id": 163, "seg_id": 393, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 163, "seg_id": 394, "translation": { "en": "For the above reasons, the applications of the 1st and 2nd applicants are dismissed.", "zh-HK": "基於上述原因，本庭駁回第一及第二申請人的申請。" } }, { "doc_id": 163, "seg_id": 395, "translation": { "en": "Mr Martin Hui, SADPP and Ms Cecilia Chan, SPP of the Department of Justice, for the Respondent.", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員許紹鼎及高級檢控官陳詩韻代表。" } }, { "doc_id": 163, "seg_id": 396, "translation": { "en": "Mr Joseph Tse SC and Ms Doris Ho, instructed by Messrs Bennett Chan & Co. Solicitors, for the 1st Applicant.", "zh-HK": "第一申請人：由陳志强律師行轉聘謝華淵資深大律師及何政慧大律師代表。" } }, { "doc_id": 163, "seg_id": 397, "translation": { "en": "Mr Eric Kwok SC and Ms Vivian Ho, instructed by Messrs Simon C W Yung & Co., for the 2nd Applicant.", "zh-HK": "第二申請人：由翁宗榮律師行轉聘郭棟明資深大律師及何慧嫻大律師代表。" } }, { "doc_id": 164, "seg_id": 1, "translation": { "en": "judgment", "zh-HK": "判案書" } }, { "doc_id": 164, "seg_id": 2, "translation": { "en": "In the small hours of 28 September 2002, the victim was transporting 7 cardboard boxes of 1,050 brand new “Samsung” mobile phones (“the stolen property”), which were worth HK$1.7 million. When he reached the open area between Ka Fai House and Ka Yeung House of Ka Shing Court, Fanling, he was intercepted by a total of about 8 men (one of whom being the applicant herein), who fisted him and kicked him and tied him up with black plastic strips. The gang of robbers then robbed the stolen property and fled.", "zh-HK": "2002年9月28日凌晨，受害人在運送7個紙箱，內有價值港幣170萬元，共1,050部簇新的「三星」牌手提電話（「失物」）途中，到達粉嶺嘉盛苑嘉輝閣與嘉楊閣之間空地時，被共約8名男子（包括申請人）截停並拳打腳踢，並被他們以黑色膠帶綑綁。該夥劫匪在劫去失物後便逃離現場。" } }, { "doc_id": 164, "seg_id": 3, "translation": { "en": "After trial before Deputy District Judge Sham, the applicant was convicted of the offence under section 10 of the Theft Ordinance, Cap. 210, and was sentenced to 6½ years’ imprisonment.", "zh-HK": "申請人在區域法院暫委法官沈小民席前，經審訊後被裁定第210章《盜竊罪條例》第10條罪名成立，判刑6年半。" } }, { "doc_id": 164, "seg_id": 4, "translation": { "en": "The applicant now applies to this Court for leave to appeal against sentence.", "zh-HK": "申請人不服，現向上訴法庭申請判刑的上訴許可。" } }, { "doc_id": 164, "seg_id": 5, "translation": { "en": "Deputy Judge Sham explained how he arrived at the sentence, as follows:", "zh-HK": "沈法官就判刑作以下解釋：" } }, { "doc_id": 164, "seg_id": 6, "translation": { "en": "In the absence of evidence to show that the offenders had used weapon in the course of robbery, I classify the present offence as a robbery not involving the use of weapon. That said, there are aggravating features in the present case. The victim was fisted and kicked by about 8 men. First, in my view it was simply unnecessary to use this kind of force on one victim when there were as many as 8 culprits. Furthermore, the injuries sustained by the victim were by no means minor. His forehead was lacerated and the wound had to be sutured. He also suffered different kinds of injuries on various parts of his body. Although he was discharged from the hospital on the same day, it does not mean that his injuries were not serious.", "zh-HK": "本案沒有證供顯示行劫時犯事者有使用武器，本席視之為非使用武器這類的劫案，但話雖如此，本案有其增加罪行嚴重性之處，就是受害人受到約有八名男子拳打腳踢。首先本席認為，賊人已經有八個人之多，對付一個受害人，根本無需要使用這般武力，再者，受害人所受的傷並不輕微，他前額有裂傷需要縫針，而身體各處地方亦有不同的傷勢，雖然即日可以出院，但並不代表他所受的傷並不嚴重。" } }, { "doc_id": 164, "seg_id": 7, "translation": { "en": "On the facts of this robbery in which the defendant took part, I first of all regard it as a robbery not involving the use of weapon. However, in view of the fact that he committed the offence together with others, I adopt 4 years as the starting point. To this, I add 1½ year on account of the harm done to the victim, and another one year in light of the fact that the value of the stolen property involved is approximately $1.7 million. The total term of imprisonment is 6½ years.”", "zh-HK": "就被告人參與是次打劫，以案情而言，首先本席視之為非使用武器的劫案，但是夥同他人作案的，就這情節而言，本席以四年作為量刑起點，考慮到受害人所受的傷害，本席加多一年半，再考慮到本案所涉及的失物之價值約有一百七十萬，再加一年，總刑期六年半。」" } }, { "doc_id": 164, "seg_id": 8, "translation": { "en": "As early as in 1981, in the case of Mo Kwong Sang v R [1981] HKLR 610, the Court of Appeal had already laid down sentencing guidelines for the offence of armed robbery:", "zh-HK": "上訴庭早在1981年在茆廣生 訴 女皇 Mo Kwong Sang v R [1981] HKLR 610一案中，已就持械搶劫罪作判刑指引：" } }, { "doc_id": 164, "seg_id": 9, "translation": { "en": "“We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be five years.", "zh-HK": "「本庭建議法庭日後如此判刑：普通持械搶劫案的被告人犯案時若攜帶刀或其他危險武器，並曾向受害人展露其所攜武器，一般應判刑五年。" } }, { "doc_id": 164, "seg_id": 10, "translation": { "en": "If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.", "zh-HK": "如被告人作案時還闖入私人處所(包括住宅和商用處所，以及該等處所的公用地方，例如升降機、樓梯等)，則宜判刑六年。" } }, { "doc_id": 164, "seg_id": 11, "translation": { "en": "If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.", "zh-HK": "如被告人對受害人施以暴力，包括綑綁對方，則應考慮判刑7年。" } }, { "doc_id": 164, "seg_id": 12, "translation": { "en": "These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.", "zh-HK": "如果還有其他罪加一等的因素，更應延長上述建議的刑期。這些因素，包括夜闖私人住所、糾黨行劫、恐嚇受害人、虐待長者及兒童、屢犯同類案件，凡此種種，不勝枚舉。" } }, { "doc_id": 164, "seg_id": 13, "translation": { "en": "These guidelines are intended to apply to those who are convicted after a trial. Thus the suggested sentences should be reduced by such amount as the court may think appropriate for a plea of guilty.", "zh-HK": "上述指引僅適用於經審訊後被定罪者。因此，如被告人認罪，以上見議的刑期可按法庭認為適當的幅度遞減。" } }, { "doc_id": 164, "seg_id": 14, "translation": { "en": "Nothing which we say, of course, should be construed as inhibiting a court from adjusting these sentences to accord with the record, age or other personal circumstances of the accused or from taking account of the particular facts of the case before it.”", "zh-HK": "當然，我們無意阻撓法庭根據被告人的犯案記錄、年齡或其他個人境遇，或考慮案中的具體事實，而酌量調整上述刑期。」" } }, { "doc_id": 164, "seg_id": 15, "translation": { "en": "Furthermore, in the case of HKSAR v Ting Chiu & another [2003] 3 HKLRD 378, which involved four unarmed persons robbing a married couple who were having a walk at night, the Court of Appeal held that the appropriate starting point was 4 years. Likewise, in HKSAR v Lam Ka Hung CACC 294/2003, the Court of Appeal also adopted a starting point of 4 years for an unarmed robbery.", "zh-HK": "再者，在香港特別行政區 訴 丁超（譯音）HKSAR v Ting Chiu & another [2003] 3 HKLRD 378中，四名賊人沒有持械搶劫一對夜遊的夫婦。上訴庭認為適當的量刑基準是4年。同樣，在香港特別行政區 訴 林家雄 HKSAR v Lam Ka Hung CACC 294/2003，上訴庭亦同樣對非持械搶劫罪採納4年的量刑基準。" } }, { "doc_id": 164, "seg_id": 16, "translation": { "en": "In Ting Chiu, four unarmed culprits robbed a married couple who were hiking. The Court of Appeal considered a starting point of 4 years appropriate. Similarly, in Lam Ka Hung, which involved a robbery where no weapon was displayed, the Court of Appeal accepted 4 years’ imprisonment as the appropriate starting point. In neither of these two cases did the offenders display any weapon or harm any person.", "zh-HK": "在丁超一案，四名賊人搶劫一對行山的夫婦，沒有持械，上訴庭認為適當的量刑基準是4年。在林家雄一案，對沒有展露武器的搶劫，上訴庭同樣接納適當的量刑基準為4年監禁。在這兩案例中，匪徒並無展露任何武器，又無傷人。" } }, { "doc_id": 164, "seg_id": 17, "translation": { "en": "Finally, in Secretary for Justice v Au Chi Hang & Others [2006] 2 HKLRD 310, the Court of Appeal confirmed that a gang robbery, a robbery committed in the small hours, the use of violence and the infliction of injuries upon the victim are aggravating factors which justify an enhancement of sentence. (See paragraphs 48 and 49 of the Judgment)", "zh-HK": "最後，在律政司司長 訴 區志恆及其他人[2006] 2 HKLRD 310，上訴庭確定糾黨行劫，於凌晨時分行劫，使用暴力，令受害人受傷等，都是加刑因素。（見判詞第48及49段）" } }, { "doc_id": 164, "seg_id": 18, "translation": { "en": "In light of the above, we see nothing improper for the trial judge to adopt, as he did, a starting point of 4 years.", "zh-HK": "由此可見，原審法官以4年作量刑起點，並無不妥。" } }, { "doc_id": 164, "seg_id": 19, "translation": { "en": "We also consider it reasonable for the trial judge to enhance the sentence by 1½ year on account of the injuries sustained by the victim. As mentioned in Mo Kwong Sang, the use of violence on the victim by the defendant, including the tying up of the victim, and a robbery involving a gang of robbers, are factors for enhancing the sentence. The present case involves as many as 8 offenders, who had inflicted violence on the victim and tied him up. In our view, therefore, it was reasonable to add 1½ year to the starting point of 4 years.", "zh-HK": "至於原審法官考慮到受害人受到的傷害，而將刑期多加1年半。本庭亦認為合理。正如茆廣生一案內提到，如被告人對受害人施以暴力，包括綑綁對方，以及糾黨行劫，都是延長刑期的因素。本案犯罪人數多達８人，並對受害人施以暴力和綑綁，因此本庭認為以4年量刑起點再多加1年半屬合理做法。" } }, { "doc_id": 164, "seg_id": 20, "translation": { "en": "The trial judge further enhanced the sentence by one year on account of the value of the stolen property at HK$1.7 million. On this point, although the value of stolen property is not necessarily irrelevant for sentencing purposes, the Theft Ordinance expressly provides as follows:", "zh-HK": "另外，原審法官以失物價值港幣170萬為由再額外多加1年刑期。關於這點，雖然失物價值並非與刑期一定無關，但是《盜竊罪條例》清楚指出：" } }, { "doc_id": 164, "seg_id": 21, "translation": { "en": "Robbery", "zh-HK": "搶劫罪" } }, { "doc_id": 164, "seg_id": 22, "translation": { "en": "(1)A person commits robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force. ”", "zh-HK": "(1)任何人如偷竊，而在緊接偷竊之前或在偷竊時，為偷竊而向任何人使用武力，或使或試圖使任何人害怕會在當時當地受到武力對付，即屬犯搶劫罪。」" } }, { "doc_id": 164, "seg_id": 23, "translation": { "en": "This shows that the focus of the offence of robbery is on force. Generally speaking, therefore, the pecuniary loss suffered by the victim is a secondary sentencing consideration. The sentences should normally be the same no matter whether the victim only had 5 dollars on him or was wearing a gold wristwatch worth $100,000.", "zh-HK": "由此可見，搶劫罪的重點在於武力，所以一般來說，受害人的金錢損失屬次要考慮。無論受害人身上只有5元，或手上帶有一隻價值10萬元的金錶，普遍來說刑期應相同。" } }, { "doc_id": 164, "seg_id": 24, "translation": { "en": "Furthermore, where a robbery involved substantial property, it usually also involved a gang of robbers and the use of weapon or force. As these are both aggravating factors, it is normally unnecessary for the court to further adjust the sentence by reference to the value of stolen property.", "zh-HK": "況且如果案件涉及較多財物，這類案件一般都涉及糾黨行劫和使用武器或武力，這些都是加重刑期的元素，所以通常不需另行以失物價值調整刑期。" } }, { "doc_id": 164, "seg_id": 25, "translation": { "en": "In our view, the above reason may serve to explain why none of the cases referred to above specifically referred to the value of the robbed property as a sentencing consideration.", "zh-HK": "本庭認為上述理由或可解釋為何以上案例均無就行劫所得物件的價值而特別指出量刑。" } }, { "doc_id": 164, "seg_id": 26, "translation": { "en": "In all the circumstances of the present case, we take the view that an overall sentence of 5½ years’ imprisonment is more appropriate for the applicant and that the term of 6½ years is manifestly excessive. Accordingly, we allow the applicant’s application for leave to appeal and, treating the application as the appeal proper, allow the appeal and reduce the term of imprisonment from 6½ years to 5½ years.", "zh-HK": "綜合本案案情，本庭認為申請人的總刑期以5年半較為恰當，而6年半則明顯過重。本庭批准申請人的上訴許可申請，視本申請為正式上訴，判上訴得直，並將刑期由6年半減至5年半。" } }, { "doc_id": 164, "seg_id": 27, "translation": { "en": "Mr. David Leung, Senior Assistant Director of Public Prosecutions (Acting), for the Respondent.", "zh-HK": "答辯人：由律政司署理高級助理刑事檢控專員梁卓然代表。" } }, { "doc_id": 164, "seg_id": 28, "translation": { "en": "Mr. Jackson Poon, instructed by A. M. Mui & Kwan on assignment by the Legal Aid Department, for the Applicant.", "zh-HK": "申請人：由法律援助署委派梅智傑姚定邦律師行轉聘潘展平大律師代表。" } }, { "doc_id": 165, "seg_id": 1, "translation": { "en": "Hon Barnes J (giving the judgment of the Court):", "zh-HK": "原訟法庭法官張慧玲頒發上訴法庭判案書 ：" } }, { "doc_id": 165, "seg_id": 2, "translation": { "en": "The applicant was charged with two counts of common assault, contrary to common law and punishable under section 40 of the Offences against the Person Ordinance, Cap. 212 of the Laws of Hong Kong (Charges 1 and 2), and four counts of indecent assault, contrary to sections 122(1) and 153P of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong.", "zh-HK": "申請人被控兩項「普通襲擊」罪，違反普通法並可根據香港法例第212 章《侵害人身罪條例》第40 條予以懲處 (控罪一及二)；及四項「猥褻侵犯」罪，違反香港法例第200 章《刑事罪行條例》第122(1) 及153P 條。" } }, { "doc_id": 165, "seg_id": 3, "translation": { "en": "The applicant pleaded not guilty but was convicted on all the charges after trial by Deputy District Judge Gary Lam (hereinafter referred to as “the Deputy Judge”) and was sentenced to imprisonment for a total term of three years and two weeks. The applicant now applies for leave to appeal his convictions.", "zh-HK": "申請人否認控罪，被區域法院暫委法官林‍嘉‍欣 (下稱「林‍法官」) 裁定全部罪名成立，判以監禁總刑期3 年及2 個星期。申請人就定罪提出上訴。" } }, { "doc_id": 165, "seg_id": 4, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 165, "seg_id": 5, "translation": { "en": "The undisputed facts were that the applicant and witness Y were husband and wife. They married each other in Hong Kong in 1998. They were both university graduates. Since 1992 Y had worked as a registered nurse at a public hospital and was required to work in shifts. The applicant and Y have a daughter X, who is their only child. X was born in October 2000. The applicant, Y and X resided together at a unit in Kowloon City. In October 2009, Y went away from home.", "zh-HK": "不爭的事實是申請人與證人Y是夫婦，於1998 年在港結婚。兩人同是大學畢業生。Y自1992 年起在公立醫院任職註冊護士，須輪班工作。申請人與Y育有一名獨生女兒 X，X在2000 年10 月出生。在2009 年10 月Y離家前，申請人與Y及X一家三口住在九龍城某單位。" } }, { "doc_id": 165, "seg_id": 6, "translation": { "en": "The prosecution case was that the applicant assaulted Y and indecently assaulted X.", "zh-HK": "控方案情指申請人襲擊Y及猥褻侵犯X。" } }, { "doc_id": 165, "seg_id": 7, "translation": { "en": "Y’s evidence was that the applicant had been out of work since May 2000. After their daughter X was born, the applicant stayed at home to take care of X on a full-time basis. Y was the sole breadwinner of the family. Starting from 2006, the applicant behaved strangely. He would remain seated in front of the computer for a whole day and incessantly press the keys. He would pass several days in a row without sleeping, eating, drinking or bathing. His emotions would swing from one extreme to the other. Y repeatedly urged him to seek medical treatment but he refused.", "zh-HK": "根據Y的證言，申請人自2000 年5 月起便沒有工作。自女兒出生後，申請人全職留在家中照顧X。Y是家庭的唯一經濟支柱。申請人自2006 年起行為異常，包括晝夜不停留坐電腦前，不停按鍵；數天不睡覺、不進食、不喝水、不洗澡，情緒兩極化。Y不斷要求申請人求醫，但申請人不肯。" } }, { "doc_id": 165, "seg_id": 8, "translation": { "en": "One day in March 2008, Y again urged the applicant to visit a doctor but was suddenly slapped by him. She asked him why he did that, and he did not answer. He just sat in front of the computer as if nothing had happened. On that occasion, Y considered the matter trivial and did not call the police (Charge 1).", "zh-HK": "在2008 年3 月某天，Y再次要求申請人求醫，申請人突然掌摑Y。當Y問申請人為何打她時，申請人沒有回應。其後申請人若無其事般坐在電腦前。Y當時認為是小事，沒有報警 (控罪一)。" } }, { "doc_id": 165, "seg_id": 9, "translation": { "en": "About 4 a.m. on 13 October 2009, the applicant woke Y up by slapping her on the face. He wanted to make love to her. She did not accede because she was too tired. Later, she went to work. She returned home around 4 p.m. the same day. When she was in the kitchen, about to prepare dinner, the applicant kept railing at her and pushed her onto the floor. When Y tried to get up, he pushed her down again and shouted out abuse in an insensible manner (Charge 2).", "zh-HK": "在2009 年10 月13 日凌晨約4 時，Y遭申請人摑醒。申請‍人‍要求與Y歡好，Y因太倦而不願配合。其後Y上班，在同日下午4 時左右返家。當Y在廚房打算煮飯時，申請人不斷罵她，並將她推跌地上。當Y嘗試站起來，申請人再次推跌她，並且無意識地大罵 (控罪二)。" } }, { "doc_id": 165, "seg_id": 10, "translation": { "en": "The applicant threw Y’s handbags and shoes out of the flat. When Y went out to pick them up, the applicant locked the metal entrance gate from the inside. Being prevented from entering the flat, Y could not but return to the hospital where she worked. From that day onwards, she did not live in that flat any more.", "zh-HK": "申請人將Y的手袋及鞋扔出單位外，當Y出外執拾時，申請人將單位鐵閘鎖上，Y不得其門而入，唯有返回醫院。自該天起，Y便沒有在上述單位居住。" } }, { "doc_id": 165, "seg_id": 11, "translation": { "en": "According to Y, X had slept with the applicant on the same bed since childhood, until one to two years ago when X began to sleep on a foldaway bed. Y said X did not like to sleep alone. After the relationship between Y and the applicant turned sour, Y would sometimes deliberately have X sleep between her and the applicant.", "zh-HK": "Y指稱X自幼便與申請人同睡一床，直至最近一兩年X才開始睡在摺床上。Y指X不喜歡獨睡，而當Y與申請人的關係變壞後，‍Y‍有時會刻意邀請X睡在她與申請人中間。" } }, { "doc_id": 165, "seg_id": 12, "translation": { "en": "On 14 October 2009, Y instructed solicitors to file a petition for divorce. Because of the petition, the court had to deal with the custody of X, and one Mr. Lau, a social worker of the Social Welfare Department, was directed by the court to prepare a report on the issue. On 17 February 2010, when X alone was being interviewed by Mr. Lau, she for the first time disclosed that the applicant had on many occasions “rubbed” and “kneaded” her chest and private parts. Mr. Lau informed the police. The police conducted video-recorded interviews with X on 17 and 18 February and 23 April 2010 respectively.", "zh-HK": "Y在2009 年10 月14 日委託律師，向法庭申請與申請人離‍婚。由於Y申請離婚，法庭須處理X的撫養權問題。法庭指派社署社工劉‍先生撰寫有關報告。在2010 年2 月17 日，當X與劉‍先生單獨會面時，X首次透露申請人曾多次用手「搓」及「捽」她的胸部及私處。劉‍先生通知警方，警方分別在2010 年2 月17 日、2 月18 日‍及4 月23 日替X進行錄影會面。" } }, { "doc_id": 165, "seg_id": 13, "translation": { "en": "X’s evidence was that after Y left home, the applicant molested her when he slept with her. The pattern of the molestation was that he rubbed her breasts with his hand by drawing circles like the figure 8 on her skin, and then he stroked her private parts in circular movements with his hand outside her underpants, and he also stroked her buttocks with his hand in circular movements similar to the figure 8. At first X alleged that the applicant molested her every day; then she said he did that about six days a week; and still later she said he sometimes touched her and sometimes he did not but most of the times he did. As regards at what time of the day these incidents happened, X said they happened between 9.30 p.m. and 10 p.m. when she went to bed to sleep after washing herself.", "zh-HK": "X的證言是自Y離家後，當申請人與她睡在一起時，申請人便侵犯她。方法是以8 字型繞圈動作接觸到肌膚的形式磨擦她的乳房，接著是隔著內褲以圓圈動作觸摸她的私處，及以8 字型繞圈動作摸她的臀部。X最初指申請人每天都侵犯她，其後指1 星期約有6 天，及後則說有時摸、有時唔摸，不過大多數會摸；而時間則是在她梳洗後上床睡覺時，即晚上9 時半至10 時。" } }, { "doc_id": 165, "seg_id": 14, "translation": { "en": "X testified that there was a lapse of four months from the time when her mother Y went away from home to the time when she told Mr. Lau that the applicant had molested her. She agreed with the estimate that she had been molested more than 90 times (line N on page 230 of the appeal bundle). During the first video-recorded interview, she said that on every occasion she was wearing a full set of pyjamas and the applicant put his hand into her pyjama jacket and touched her breasts directly. However, during the video-recorded interview conducted in April 2010, X for the first time said that sometimes she pulled up her pyjama jacket because she felt “hot” or “stuffy”, and that the applicant told her to pull her pyjama jacket away from her body —— sometimes he even did that himself —— so that her upper body was naked and then touched her breasts.", "zh-HK": "根據X的證言，自其母親Y離家後，直至她向劉‍先生提及她被申請人侵犯，為期4 個月。她同意有可能被侵犯90 多次 (上訴文件第230 頁N 行)。雖然X在首次錄影時指每次她都身穿睡衣及睡褲，申請人是伸手入她睡衣直接摸她的乳房，但在2010 年4 月的錄影會面，X則首次指稱有時她因「熱」或「焗」而將睡衣拉高，申請人要她或有時甚至動手將她的睡衣拉離身體，令她上身赤裸而被申請人摸她的乳房。" } }, { "doc_id": 165, "seg_id": 15, "translation": { "en": "As X was able to give specific descriptions of the first assault (Charge 3), the last assault (Charge 6) and the assaults which occurred on two nights in a hotel when she and the applicant went to Qing Yuan together on a help-the-poor trip (Charges 4 and 5), the applicant was in the end charged with four counts of indecent assault.", "zh-HK": "由於X對第一次被侵犯 (控罪三)、最後一次被侵犯 (控罪六) 及她與申請人同往清遠扶貧、住在酒店的兩晚被侵犯 (控罪四及五) 有較具體的描述，申請人最終被控四項猥褻侵犯罪。" } }, { "doc_id": 165, "seg_id": 16, "translation": { "en": "The applicant was arrested. Under caution, he denied all the charges.", "zh-HK": "申請人被捕後，在警誡下，他否認所有控罪。" } }, { "doc_id": 165, "seg_id": 17, "translation": { "en": "Defence case", "zh-HK": "辯方案情" } }, { "doc_id": 165, "seg_id": 18, "translation": { "en": "The applicant elected to give evidence.", "zh-HK": "申請人選擇作證。" } }, { "doc_id": 165, "seg_id": 19, "translation": { "en": "He explained that as he had completed some work under a contract and Y was pregnant, he and Y jointly decided that he should stay at home to take care of their daughter X instead of going to work. He said it was not the case that he failed to secure renewal of the contract by reason of unsatisfactory performance.", "zh-HK": "申請人指他純粹是因為合約完成，而Y有身孕，他與Y共同決定他不工作，留在家中照顧女兒X，他並非工作表現不濟而不獲續約。" } }, { "doc_id": 165, "seg_id": 20, "translation": { "en": "The applicant said that he looked after X with comprehensive care, personally taking her to school to attend classes, picking her up at school when classes were over, taking her to extra-curricular activities and picking her up when the activities had finished. He said he loved X and would never sexually abuse her. He denied having assaulted Y or thrown her belongings out of the flat. He said Y simply left without saying anything and it was only some time later, when he indirectly learned that she was still going to work, that he realized she had not gone missing. He admitted that he had changed the door lock, but he did that merely because some construction work was being carried out near his flat. He maintained that he had never committed the offences with which he was charged. He believed that X fabricated such serious allegations against him only because she had been misled by someone into doing so.", "zh-HK": "申請人說他對X照顧週全，上學、放學、參加課外活動申請人都管接管送。申請人指他愛錫X，不會侵犯她。申請人否認曾襲擊Y，否認將Y的物品扔出單位外。他指Y不辭而別，申請人祇是後來間接知悉Y仍有上班才知Y並非失踪。申請人指他曾更換門鎖，但祇是因為單位附近有工程才這樣做。申請人指他絕無干犯他面對的控罪，他認為X是受人誤導，才虛構如此嚴重的指控。" } }, { "doc_id": 165, "seg_id": 21, "translation": { "en": "Findings made by the Deputy Judge", "zh-HK": "法官的裁斷" } }, { "doc_id": 165, "seg_id": 22, "translation": { "en": "In his Reasons for Verdict, the Deputy Judge set out his assessment and analysis of the evidence as follows:", "zh-HK": "林‍法官在裁決理由書列出他對理據的評估及分析如下：" } }, { "doc_id": 165, "seg_id": 23, "translation": { "en": "“Assessment and analysis of the evidence", "zh-HK": "「證據評估及分析" } }, { "doc_id": 165, "seg_id": 24, "translation": { "en": "28.The prosecution bears the burden of proving beyond reasonable doubt each and every element of each of the offences charged. I bear in mind that the evidence given by each witness in respect of each charge must be separately considered. I have given myself directions as to the elements of the offence of indecent assault in accordance with the principles laid down in R v Court [1989] AC 28.", "zh-HK": "28.舉證責任在控方，控方必須在毫無合理疑點下，證明每項控罪的每一元素。本席謹記，必須獨立考慮每位證人所作關於每項控罪的證供。關於『猥褻侵犯』的罪行元素，本席已按照R v Court [1989] AC 28一案的法律原則，對自己作出指引。" } }, { "doc_id": 165, "seg_id": 25, "translation": { "en": "29.The defendant has a clear record, and I have given myself appropriate directions as to his good character. I understand that the evidence in this case is essentially in a state of “one against one”. I also bear in mind that allegations concerning indecent assault are easy to make up but difficult to refute.", "zh-HK": "29.被告人過往沒有刑事紀錄，關於他的良好品格，本席已對自己作出適當的指引。本席明白，本案的證據基本上是『一對一』的情況。本席也謹記，『非禮』這類指控，容易捏造，但難於反駁。" } }, { "doc_id": 165, "seg_id": 26, "translation": { "en": "30.I have carefully considered the evidence given by girl X and Madam Y and have observed their demeanour during the video-recorded interviews and when they were testifying at trial. I find that they are frank, veracious and reliable witnesses. I am satisfied that they have told the court the facts and the truth.", "zh-HK": "30.本席細心考慮了女童X和Y女士的證供，亦觀察了她們在錄影會面及庭上作供時的神情舉止。本席認為，她們均是實話實說、誠實可靠的證人。本席信納她們的證言道出了事實和真相。" } }, { "doc_id": 165, "seg_id": 27, "translation": { "en": "31.On Charges 1 and 2, Ms. Yew, counsel for the defence, criticized Madam Y for being biased against the defendant, and submitted that in these incidents she harboured ulterior motives. Discharging the functions of a juror, I take the view that [Madam] Y’s evidence is reasonable, logical and by no means exaggerated. Although the husband and wife relationship between Madam Y and the defendant has clearly broken down, I do not see why Madam Y had to make up the allegations in order to strengthen her case in the proceedings for divorce and child custody. She is a nurse by profession. Indeed, as far as the custody of X, who is soon approaching puberty, is concerned, the fact that Madam Y is a nurse by profession, has a stable source of income, is the mainstay of the family and is a female, does prima facie give her an advantage over the defendant. At trial, in response to my question of whether she had thought of calling the police on 13 October 2009, Madam Y said, ‘No, because it was not the first time. I did not think that the police could help me. I just thought that the defendant had to see a doctor.’ While Madam Y is not a psychiatric expert, she certainly possesses more medical knowledge than an ordinary housewife does (even more than I do). I endorse her observation and the way she dealt with the incident.", "zh-HK": "31.關於控罪一和二，辯方姚大律師批評，Y女士對被告人存有偏見，並在相關事件中，存有其他動機（ulterior motive）。身為陪審員，本席認為，Y女[士]的證言合情合理，絕無半點誇大。無疑，Y女士與被告人的夫妻關係已破裂，但本席相信，Y女士無須虛構一些指控，來鞏固自己在離婚案和撫養權的利益。她既是專業護士，又有穩定工作和收入，一直是家庭經濟支柱，還是女性，從撫養快將步入青春期的女童X的角度而言，表面上的確較被告人優勝。本席曾在庭上詢問Y女士，2009年10月13日當天，有沒有考慮報警求助。Y女士回答：『沒有，因為不是第一次。我不覺得警察能幫助我，我只認為，被告人需要見醫生。』雖然Y女士並非精神科專家，但她的醫學知識，肯定較一般家庭主婦（甚至本席）豐富。本席認同Y女士的觀察及處事手法。" } }, { "doc_id": 165, "seg_id": 28, "translation": { "en": "32.As for Charges 3 to 6, Ms. Yew made extensive adverse comments about the hidden motives of girl X and Madam Y. In brief, Ms. Yew submitted that girl X, abetted by Madam Y and in hopes of leading a more pleasant life and enjoying more ease and comfort, fabricated the stories to frame up the defendant. The interview of girl X alone by the social worker Lau, in which she for the first time made the relevant complaint, was (Ms. Yew said) ‘a meticulously designed arrangement’. Ms. Yew was undoubtedly performing her duty as a responsible counsel, but I think her proposition is grossly exaggerating the self-interests (if any) of girl X and Madam Y and their bias (if any) against the defendant, and is in lack of factual support. Discharging the functions of a juror, I consider that, however desirous girl X might be of living with her mother, it would suffice for her to express her wish to the social worker Lau (or even to a judge of the Family Court). There was absolutely no need for her to weave such stories to drive her own father into this hopeless predicament. No matter how scheming and calculating Madam Y might be, would X, who was only nine years old at the time of the offences, have the ability to coordinate her actions with her mother’s? Would she be capable of telling the same lies consistently on various occasions? I have observed X’s behaviour and heard what she said during the video-recorded interviews and at trial. Unless she was an extraordinarily skilful actress, her sincere attitude and her evidence were not things that she could feign.", "zh-HK": "32.關於控罪三至六，姚大律師對女童X和Y女士背後的目的，作出了很多批評。簡單說，姚大律師認為，女童X是受了Y女士的唆擺，為了能過一些較舒適的生活和獲得較好的享受，才砌詞誣捏被告人。而安排女童X與劉社工單獨會面時，首次作出相關投訴，更是『一次精心的設計』。本席認為，姚大律師無疑盡責，但她的理論，未免把女童X和Y女士的私心和對被告人的偏見（如有的話）無限上綱了，亦欠缺事實支持。身為陪審員，本席認為，無論女童X何其希望能與母親同住，她只須向劉社工（甚至家事法官）表達其意願，便十分足夠了，絕對沒有必要無中生有，把親生父親陷於萬劫不復之地。即使Y女士如何攻心計，如何精於計算，案發時只有9歲的女童X，有能力配合母親嗎？有能力貫徹始終在不同場合重複地說同一謊話嗎？本席耳聞目睹女童X在錄影會面及庭上的表現，除非她具超凡演技，否則她真誠的態度和證言，是裝不出來的。" } }, { "doc_id": 165, "seg_id": 29, "translation": { "en": "33.I do not consider the defendant’s evidence credible. Just by looking at the reason he gave for Madam Y’s unexplained desertion of her husband and daughter and her running away from home, one can see he was hiding something or making up a story.", "zh-HK": "33.關於被告人的證言，本席認為不可信。單是他指稱Y女士無故拋夫棄女，離家出走的原因，便可顯出他有所隱瞞或砌詞狡辯。" } }, { "doc_id": 165, "seg_id": 30, "translation": { "en": "34.On 24 September (Friday) of this year, before adjournment of the trial I asked the defendant whether he, up to that moment, knew why Madam Y left him and their family. His instant reply was: ‘I’m not sure about the exact reason, but I have my views on that.’ After the weekend, on 27 September (Monday), once the trial resumed the defendant talked ceaselessly, supplying a whole lot of reasons for his suspicion that Madam Y had an extra-marital affair. Ms. Yew criticized Madam Y for deliberately vilifying the defendant in the course of testifying. However, in my view exactly the opposite happened. In fact Madam Y showed great restraint when she was giving evidence. She just frankly described what happened, calling a spade a spade and using words which were direct and to the point. On the other hand, I feel that the defendant had tried to deliberately vilify Madam Y by describing her as a vicious woman who deliberately planned to abet his daughter in framing him up. He also made a seriously wrong move by changing the door lock of the flat. If he was longing so much for her wife to change her mind and to return home, why did he change the door lock? Furthermore, although he was in financially dire shape, he still paid about $2,000 so that he and his daughter could go to the Mainland to help the poor. I find this difficult to understand.", "zh-HK": "34.本席於本年9月24日（星期五）散庭前曾詢問被告人，直至該刻，他知否為何Y女士要離開他或這個家。他即時的回應是：『確實原因未必知，但我有諗法。』過了周末，9月27日（星期一）剛開庭，被告人便滔滔不絕，自行補充了一大堆他懷疑Y女士有外遇的理由。姚大律師曾批評Y女士，作供時刻意詆譭被告人。但本席認為，實情剛剛相反。Y女士作供時其實十分克制，有碗話碗，有碟話碟，措詞亦相當中肯。反而，本席感到被告人刻意在庭上抹黑Y女士，把她形容為如何處心積慮地唆擺女兒去誣捏他的歹毒婦人。此外，把家門的鎖換了也是一大敗筆。既然無比渴望妻子回心轉意返家，又何故把門鎖換掉？還有，即使經濟拮据，也要支付約2,000元，讓父女二人一起到內地扶貧。這一點，亦難以理解。" } }, { "doc_id": 165, "seg_id": 31, "translation": { "en": "35.For the above reasons, I harbour doubts about the credibility of the defendant’s evidence, which I reject accordingly.", "zh-HK": "35.基於上述各項理由，本席對被告人證供的可信性存疑。本席拒絕信納被告人的證言。" } }, { "doc_id": 165, "seg_id": 32, "translation": { "en": "36.I firmly believe that girl X and Madam Y had been molested or assaulted by the defendant at the times and places specified in the six charges and in the way and manner as described by them in their respective evidence. Discharging the functions of a juror, I find that the assaults in relation to Charges 3 to 6 are plainly indecent. In other words, the prosecution has proved the six charges beyond reasonable doubt. The defendant is convicted on Charges 1 to 6.”", "zh-HK": "36.本席深信不疑，女童X和Y女士的確分別於6項控罪所指的日期及地點，遭被告人侵犯或襲擊，過程和手法就如她們各自的證供所描述。身為陪審員，本席認為，控罪三至六的侵犯行為，明顯全屬『猥褻』。換句話說，控方已就6項控罪舉證至毫無合理疑點。本席裁定，被告人就控罪一至六，罪名成立。」" } }, { "doc_id": 165, "seg_id": 33, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理據" } }, { "doc_id": 165, "seg_id": 34, "translation": { "en": "Ms. Sylvia Lee, counsel for the applicant, put forward three grounds of appeal to support the contention that the convictions are unsafe and unsatisfactory. In essence, her complaints are that the Deputy Judge erred in assessing the evidence of X and Y and failed to sufficiently consider the applicant’s evidence, as a result of which the Deputy Judge erroneously drew inferences adverse to the applicant and rejected his evidence.", "zh-HK": "申請人代表李‍曉‍華大律師共提出三項上訴理據指定罪不安穩。基本上申請人指原審法官一方面錯誤處理X及Y的證供，另一方面未有充分考慮申請人的證供而錯誤對申請人作出不利的推論，並因此不接納申請人的證供。" } }, { "doc_id": 165, "seg_id": 35, "translation": { "en": "Referring to X’s video-recorded interviews and her testimony, Ms. Lee pointed out that, in respect of her allegations of having been molested by the applicant, there were discrepancies as to how many occasions of such molestations there had been, when they happened and whether she was wearing a pyjama jacket, but the Deputy Judge did not address such discrepancies.", "zh-HK": "李‍大律師引述X的錄影會面及在庭上的證言，指X就她指稱被申請人侵犯的事宜，不論在次數、時間及有否穿上睡衣方面有分歧，但法官並無處理有關分歧。" } }, { "doc_id": 165, "seg_id": 36, "translation": { "en": "Ms. Lee also submitted that the Deputy Judge paid no regard to the fact that the person to whom X made her complaint for the first time was a male social worker, not her mother Y. She said that this part of her evidence was irrational —— particularly so because X had read about and was aware of the story of “Little Butt Butt”, a victim of sexual assault.", "zh-HK": "李‍大律師亦指法官無考慮X首次作出投訴是向一名男性社工，而非向她母親Y，此部份的證供不合情理——尤其是X當看過及知道「小畢畢」的故事，有關故事是關乎小畢畢被性侵犯的。" } }, { "doc_id": 165, "seg_id": 37, "translation": { "en": "Furthermore, X said in court that, as requested by the applicant, she “put on a show” in front of the social worker Mr. Lau by pretending to look happy, when in fact she was not happy. Ms. Lee submitted that the Deputy Judge did not sufficiently consider the possibility that X might have been influenced by Y or a third person to “put on a show” and make up the incidents of her having been molested by the applicant.", "zh-HK": "另外，由於X在庭上聲稱她因應申請人要求而在社工劉‍先生面前「做戲」，表現開心，但其實她並不開心，李‍大律師指法官無充分考慮X亦有可能在Y或第三者影響下「做戲」，虛構被申請人侵犯此事件。" } }, { "doc_id": 165, "seg_id": 38, "translation": { "en": "With reference to Y’s evidence, Ms. Lee argued that the Deputy Judge erroneously inferred that it was “not necessary” for Y to make up allegations as she had certain advantages over the applicant as far as X’s custody was concerned. The Deputy Judge did not have all the information about the divorce between Y and the applicant, and it was not the case that the Family Court would certainly give judgment in favour of Y. It was therefore not certain that it would not be “necessary” for Y to invent the allegations in order to strengthen her interests.", "zh-HK": "就Y的證供，李‍大律師指林‍法官錯誤推斷Y在就X的撫養權問題較申請人優勝而「無必要」虛構一些指控。在案中，法官並沒有關乎Y與申請人離婚的所有資料，Y在家事法庭的勝算並非必然，故此Y亦不一定「必然」無須虛構指控以鞏固她本人的利益。" } }, { "doc_id": 165, "seg_id": 39, "translation": { "en": "Ms. Lee complained that the Deputy Judge erred in accepting, on the basis that Y had medical knowledge, Y’s way of dealing with the assault by the applicant —— i.e. neither calling the police nor seeking medical treatment —— as correct.", "zh-HK": "李‍大律師亦投訴林‍法官錯誤以Y有醫學知識而錯誤接納Y就據稱曾被申請人打仍不報警或就醫此方面的處理方法。" } }, { "doc_id": 165, "seg_id": 40, "translation": { "en": "As to Y’s conduct, namely that for 10 odd days after she left home she did not contact the applicant or call the police and was content to leave her daughter X alone with the applicant, Ms. Lee submitted that Y’s explanation did not make sense, but that the Deputy Judge failed to consider and properly deal with Y’s testimony in that regard.", "zh-HK": "李‍大律師指Y在離家後十多天不聯絡、不報警及放心留女兒X與申請人一起所作的解釋不合情理，但林‍法官無考慮及適當處理Y的證言。" } }, { "doc_id": 165, "seg_id": 41, "translation": { "en": "As for the applicant’s evidence, Ms. Lee’s complained that the Deputy Judge had been unfair to him by giving weight to the elaborations the applicant made at the post-weekend resumed hearing on the reasons for Y’s going away without saying anything.", "zh-HK": "就申請人的證供，李‍大律師投訴林‍法官著重申請人在週末後再開庭時給予更詳盡的理由為何Y不辭而別此方面的證供，對申請人不公平。" } }, { "doc_id": 165, "seg_id": 42, "translation": { "en": "Ms. Lee also submitted that the Deputy Judge improperly relied on the fact that the applicant and X had gone to Qing Yuan to help the poor as a reason for finding that the applicant’s evidence was incredible.", "zh-HK": "李‍大律師亦指林‍法官以申請人與X曾往清遠扶貧此事件作為申請人不可信的理由是不妥當的。" } }, { "doc_id": 165, "seg_id": 43, "translation": { "en": "Ms. Lee also said that even if the Deputy Judge considered, from a broad perspective, that the applicant’s changing the door lock was “a seriously wrong move”, it was not a sufficient reason for finding that the applicant’s evidence was wholly incredible.", "zh-HK": "李‍大律師亦指即使林‍法官以宏觀角度來看，認為申請人將門鎖換了是「一敗筆」，但此理由不足以裁定申請人的證言全不可信。" } }, { "doc_id": 165, "seg_id": 44, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 165, "seg_id": 45, "translation": { "en": "With respect, the Deputy Judge’s Reasons for Verdict are in our view too brief. Having set out the prosecution case and the defence case, he simply remarked in paragraph 30 that having carefully considered the evidence of X and Y and had observed their demeanour in giving evidence, he considered them frank, veracious and reliable witnesses. The Reasons for Verdict were silent on X’s accounts (as given in her two recoded interviews in February and April 2010 respectively and in her testimony at trial) of how many times she had been molested, when the molestations took place and whether she was wearing a pyjama jacket. Nowhere in the Reasons for Verdict did the Deputy Judge indicate how he dealt with the discrepancies in what X said.", "zh-HK": "本庭認為林‍法官的裁斷理由太簡單。基本上林‍法官在描述控辯雙方案情後，祇是在第30 段說他細心考慮了X及Y的證供及觀察她們作供時的神情舉止，認為她們均是實話實說，是誠實可靠證人。林‍法官對X曾在2010 年2 月及4 月的兩次錄影會面紀錄及在庭上的證言就被侵犯的次數、時間及有否穿上睡衣確是一字不提，完全無顯示他如何處理有關分歧。" } }, { "doc_id": 165, "seg_id": 46, "translation": { "en": "In Zhuo Cui Hao v Ting Fung Yee, Chan CJHC (as he then was) had this to say about the duty of a judge to give reasons for his decision (at 632H):", "zh-HK": "在周翠好訴丁鳳儀一案，高等法院首席法官陳‍兆‍愷 (當時官階) 就法官須給予判決理由如此說 (第632 頁H 行) ：" } }, { "doc_id": 165, "seg_id": 47, "translation": { "en": "“Generally speaking, a professional judge is under a duty to analyse in his judgment the material points in the evidence of the case and give reasons as to why he has reached a particular conclusion or decision. This is the only way to make people understand why their evidence is not accepted by the court and why they lose in a case. Only by this can justice be seen to be done. Furthermore, the losing party needs to be clear on whether there is any error in the reasons for the decision given by the court before he can decide whether to appeal or not, and, at a later stage, submit to the Court of Appeal his grounds of appeal in order to seek to set aside the original decision. A professional judge is under a duty to give adequate reasons for any decision which he has made. This is a principle of paramount importance in the common law system. This principle is quite clear. ….”", "zh-HK": "「一般來說，一位職業法官有責任在判詞中分析案中証供的要點，並提出理由解釋為何達到某一個結論或裁決。只要這樣做才能使人明白為何自己的証供不受法官接納，自己的案件為什麼不能成功。這樣才可以彰顯司法公正。再者，敗訴一方是需要清楚知道法官判決的理由有什麼地方出錯，才可以決定是否提出上訴，及其後向上訴法院提出理據進行上訴以求推翻原來的判決。職業法官是有責任就他所作出的判決提出充份的理由，這是普通法制上一個十分重要的原則。這個原則是非常明確的。….」" } }, { "doc_id": 165, "seg_id": 48, "translation": { "en": "Although Zhuo Cui Hao is a civil case, the above passage is in our view also applicable to criminal cases.", "zh-HK": "雖然上述案件是一宗民事案件，但本庭認為上述判詞適用於刑事案件。" } }, { "doc_id": 165, "seg_id": 49, "translation": { "en": "In HKSAR v Kevin Egan, Litton NPJ expressed his views, with which Bokhary PJ agreed, on how a judge should approach the task of fact finding. Litton NPJ quoted (at paragraph 303 of his judgment) the following passage from the judgment of Blair-Kerr SPJ in Kowloon Motor Bus Co. (1933) Ltd v Kong Tung (a civil suit which is also applicable in a criminal case):", "zh-HK": "在HKSAR v Kevin Egan一案，終審法院非常任法官列‍顯‍倫就法官應如何處理事實裁定給予他的看法，而常任法官包‍致‍金亦認同有關看法。列‍顯‍倫法官引述前香港高級副按察司百‍里‍渠在Kowloon Motor Bus Co. (1933) Ltd v Kong Tung (一宗民事案件，但適用於刑事案件) 的判詞 (判詞第303 段) ：" } }, { "doc_id": 165, "seg_id": 50, "translation": { "en": "“I cannot leave this case without repeating what I have said on numerous occasions during the last 10 years viz. that it is of the first importance that every judge of fact should indicate clearly in his judgment not only his findings of fact - primary and inferential - but, as regards his findings of primary fact, to what extent these are based on the view which he has formed of the witnesses’ demeanour and on what he regards as the inherent probabilities and improbabilities of the conflicting stories.”", "zh-HK": "“I cannot leave this case without repeating what I have said on numerous occasions during the last 10 years viz. that it is of the first importance that every judge of fact should indicate clearly in his judgment not only his findings of fact - primary and inferential - but, as regards his findings of primary fact, to what extent these are based on the view which he has formed of the witnesses' demeanour and on what he regards as the inherent probabilities and improbabilities of the conflicting stories.”" } }, { "doc_id": 165, "seg_id": 51, "translation": { "en": "In short, Blair-Kerr SPJ was trying to emphasize this salient point: The trial judge should not only clearly state the facts, whether primary or inferential, which he finds to be proven. As regards primary facts, he should spell out to what extent his views are based on the witnesses’ demeanour and to what extent they are based on inherent probabilities and improbabilities of the conflicting stories.", "zh-HK": "簡而言之，前香港高級副按察司百‍里‍渠強調以下重點：主審法官不單要將他裁定為事實的事實清楚道出——不論是基本事實或推論而得的事實，就基本事實，法官的看法究竟有多少是基於證人的神態舉止，有多少是基於分歧版本的潛在可能性或不可能性，法官亦須明言。" } }, { "doc_id": 165, "seg_id": 52, "translation": { "en": "Litton NPJ also described (at paragraph 304 of the judgment) the procedures to be followed by the judge in making findings of fact :", "zh-HK": "列‍顯‍倫法官亦就法官作出事實裁定的步驟為何 (判詞第304 段)說 ：" } }, { "doc_id": 165, "seg_id": 53, "translation": { "en": "“304.Fact finding by a tribunal is a forward moving process. At the starter’s line are the primary facts relevant to the indictment (or to the pleadings in a civil suit). Most of these, generally speaking would be non-controversial. From these, a picture of the inherent probabilities will often emerge … the tribunal would then move on to evaluate the disputed evidence. ‘Evaluate’ means just that: To measure, to weigh. Not every piece of evidence has equal weight. … When a tribunal in giving judgment recites the testimony of a witness and says ‘I accept him as a truthful witness’, this is not evaluation: It is a conclusion which might be reached at the end, after weighing the relevant evidence.”", "zh-HK": "“304.Fact finding by a tribunal is a forward moving process. At the starter’s line are the primary facts relevant to the indictment (or to the pleadings in a civil suit). Most of these, generally speaking would be non-controversial. From these, a picture of the inherent probabilities will often emerge … the tribunal would then move on to evaluate the disputed evidence. ‘Evaluate’ means just that: To measure, to weigh. Not every piece of evidence has equal weight. … When a tribunal in giving judgment recites the testimony of a witness and says ‘I accept him as a truthful witness’, this is not evaluation: It is a conclusion which might be reached at the end, after weighing the relevant evidence.”" } }, { "doc_id": 165, "seg_id": 54, "translation": { "en": "The gist is that fact finding is a forward moving process, which starts with the primary facts relevant to the indictment. On the basis of these facts, views on inherent probabilities are formed. The judge should then evaluate the disputed evidence, which means to measure and weigh the evidence. Not every part of the evidence carries equal weight. When the judge simply recites the evidence of a witness and says he finds the witness to be a truthful witness, he is just stating the conclusion he has reached after the evaluation.", "zh-HK": "大意是事實裁定是一項前進的步驟，起點是與公訴書有關的基本事實，從基本事實便引伸潛在可能性的事宜。法官繼而須評估證供分歧之處。評估是指權衡輕重，並非每部份的證言都具同等份量。當法官祇是將證人證言道出，然後說他信納該證人是真誠的證人，法官祇是道出評估後的結論。" } }, { "doc_id": 165, "seg_id": 55, "translation": { "en": "At paragraph 386 of his judgment, when commenting on the adequacy of reasons given by the judge, Gleeson NPJ quoted the dictum of the then Li CJ in Oriental Daily Publisher Ltd v Commissioner for Television & Entertainment Licensing Authority:", "zh-HK": "而終審法院非常任法官紀‍立‍信就裁決理由是否充足此範疇有以下的看法。紀‍立‍信法官引述Oriental Daily Publisher Ltd v Commissioner for Television & Entertainment Licensing Authority前終審法院首席法官李‍國‍能的判詞 (判詞第386 段) ：" } }, { "doc_id": 165, "seg_id": 56, "translation": { "en": "“Where there is a duty to give reasons, it must be discharged by giving adequate reasons. What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question.”", "zh-HK": "“Where there is a duty to give reasons, it must be discharged by giving adequate reasons. What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question.”" } }, { "doc_id": 165, "seg_id": 57, "translation": { "en": "The gist is that if the judge is obliged to give reasons, he must give adequate reasons. Whether the reasons are adequate is to be determined in light of the context in which the decision is made and all the circumstances of the case in question.", "zh-HK": "大意是若有需要給予理由，則理由必須充分。理由是否充分要因應作出裁斷者是在何範疇作出裁斷及有關案件的所有情況而決定。" } }, { "doc_id": 165, "seg_id": 58, "translation": { "en": "At paragraph 387 of his judgment, Gleeson NPJ also cited the Australian case of AK v State of Western Australia and said:", "zh-HK": "紀‍立‍信法官亦引用澳洲案例AK v State of Western Australia說 (判詞第387 段) ：" } }, { "doc_id": 165, "seg_id": 59, "translation": { "en": "“387.The adequacy of reasons in the circumstances of a particular case is to be considered in the light of the purposes that are served by the obligation to give reasons. It promotes good decision-making, and the acceptability of decisions to the public.", "zh-HK": "“387.The adequacy of reasons in the circumstances of a particular case is to be considered in the light of the purposes that are served by the obligation to give reasons. It promotes good decision-making, and the acceptability of decisions to the public. It means that the parties are given an explanation of the outcome. It serves the interests of the parties and the public by facilitating appropriate appellate supervision.”" } }, { "doc_id": 165, "seg_id": 60, "translation": { "en": "It means that the parties are given an explanation of the outcome. It serves the interests of the parties and the public by facilitating appropriate appellate supervision.” The gist is that whether the reasons given are adequate is to be judged according to the purpose for which the duty to give reasons is imposed. Adequate reasons help develop the correct decision making process, thereby enhancing the acceptability of decisions to the public. It serves the interests of the parties, who are given an explanation of the outcome. It also serves the interests of the public by facilitating supervision by the appellate court.", "zh-HK": "大意是理由是否充分會因應有需要給予理由此責任的目的為何？給予充分理由有助於培養正確的作出決定的思維過程，令有關決定更能為大眾接受。涉案各方亦獲得解釋為何有該結果。此做法對涉案各方有利，亦因方便上訴法庭作出監察而令公眾得益。" } }, { "doc_id": 165, "seg_id": 61, "translation": { "en": "It is not necessary for us to detail here the discrepancies in the evidence in the present case. However, as a matter of fact, there are differences between what X said in her video-recorded interviews in February and April 2010 and what she said in testimony at trial: Did the applicant molest her every night; or about six nights a week; or sometimes he did, sometimes he did not, but most of the times he did molest her? Did he molest her between 9.30 p.m. and 10 p.m. or at a later time by reason of her swimming lessons or otherwise? And significantly, why did she say during the video-recorded interview in February 2010 that every time the appellant put his hand into her pyjama jacket and touched her breasts, but allege during her second video-recorded interview that sometimes the appellant touched her when her upper body was naked?", "zh-HK": "本庭認為無須在此詳細列出本案中證供的分歧。但事實上X在2010 年2 月及4 月的錄影會面及其後在法庭的證供曾給予不同版本：究竟是每晚都侵犯她？抑或是1 星期約6 晚？抑或是有時無，但大多數會有侵犯她呢？究竟是在晚上9 時半至10 時，抑或有時因游泳訓練或其他情況而在稍後時間才侵犯她呢？或重要的是，為何她在2010 年2 月的錄影會面祇說每次申請人都伸手入她睡衣摸她的乳房，但在第二次錄影會面便指稱有時她是上身赤裸被申請人摸呢？" } }, { "doc_id": 165, "seg_id": 62, "translation": { "en": "At trial, counsel for the applicant had brought out all the above discrepancies when she was cross-examining X, but the Reasons for Verdict were silent on this matter.", "zh-HK": "上述範疇在審訊時申請人的代表律師在盤問X時已將分歧處一一帶出，但林‍法官完全無在裁決理由書處理上述事宜。" } }, { "doc_id": 165, "seg_id": 63, "translation": { "en": "There are special features which set the present case apart from other sexual assault cases. The undisputed facts were that ever since the birth of X, the applicant had been her principal carer. He took care of her daily life, took her to school and other activities and picked her up after school and when such activities were over; whereas Y was the sole breadwinner of the family and worked irregular hours. X had been sleeping with the applicant on the same bed since childhood. It is not the case that the applicant suddenly wanted X to sleep with him after Y left home.", "zh-HK": "本案的案情較其他性侵犯事件有其獨特之處。不爭的事實是申請人自X出生以來便是X的主要照顧者，負責X的起居飲食，管接管送；而Y是家庭唯一的經濟支柱，工作不定時。X自幼已經與申請人同床睡覺，而並非在Y離開後申請人才突然要求X與他同睡的。" } }, { "doc_id": 165, "seg_id": 64, "translation": { "en": "Admittedly, X was only a nine year old girl. Of course, the Deputy Judge might have thought that for X, a girl aged no more than nine who had been repeatedly assaulted by the applicant, it was not surprising for there to be some confusion in her evidence. Still, he should have indicated in his Reasons for Verdict that he had taken the discrepancies into account and explained how he dealt with them.", "zh-HK": "誠然，林‍法官可能認為X祇是一名9 歲女童，而根據X的證言，‍她被申請人侵犯多次，其中有混淆並不奇怪，但法官應在裁決理由書中顯示他曾作考慮及如何處理有關分歧。" } }, { "doc_id": 165, "seg_id": 65, "translation": { "en": "Furthermore, the picture which X painted was that she did not see her mother X for a few days and then the applicant suddenly assaulted her, and thereafter went on to assault her many more times. Sometimes he even touched her breasts when her upper body was naked. This being the case, why did she say during the first video-recorded interview that “every time” the applicant put his hand into her pyjama jacket and touched her, without making any mention of her clothes being taken off? The Deputy Judge never addressed these contradictions.", "zh-HK": "再者，從X的角度來看，申請人在她沒有見到媽媽Y幾天後突然侵犯她，其後甚至多次侵犯她，甚至有時在她上身赤裸情況下摸她的乳房，為何她在首次錄影會面說申請人「次次」都是伸手入她睡衣內摸她，而完全不提及有脫衣的情況呢？林‍法官完全沒有處理此方面的矛盾。" } }, { "doc_id": 165, "seg_id": 66, "translation": { "en": "The evidence showed that notwithstanding Y’s departure, X and Y had met and had even stayed together for a short period of time, but X had never told Y —— Y being her mother whom she trusted and loved very much —— that after Y left, X’s father (the applicant) unexpectedly began to repeatedly assault her. Although X was aware of the story about Little Butt Butt (“Don’t let others touch your private areas. If anyone does that to you, you must immediately inform someone you trust”), she did not tell her mother Y what had happened to her, but instead made her first complaint only when she was interviewed by a man, i.e. the social worker Mr. Lau. It appears that the Deputy Judge did not sufficiently consider whether X’s evidence was credible and reliable.", "zh-HK": "證供顯示自Y離開後，X與Y有見面，亦曾試過與Y一齊住宿短時間，但X從無將其父 (即申請人) 突然在母親Y離開後開始多次侵犯她一事，告知母親Y——而母親Y是她信任及深愛的人。X知悉「小畢畢」故事 (不要讓他人摸私人地方，遇事立刻告知信任的人)；她不向媽媽Y道出，反而是在會見社工劉‍先生 (一名男子) 時才首次向他道出。林‍法官看來沒有充分考慮X所言是否可信可靠。" } }, { "doc_id": 165, "seg_id": 67, "translation": { "en": "In court, X addressed the applicant as “that bad guy”, the reason being that the applicant kept asking Y for maintenance instead of going to work (line E on page 232 of the appeal bundle). X had some hate for the applicant (line U on page 336 of the appeal bundle). X admitted that she felt a bit embarrassed because she was accompanied by her father in extra-curricular activities, whereas most of her schoolmates were accompanied by their mothers. She was also somewhat sensitive to the difference between her family conditions and those of other children, in that the fathers of other children went to work and their mothers stayed at home, but in her case it was the opposite (line M on page 228 of the appeal bundle). The applicant, being out of work, had more time to urge her to take part in extra-curricular activities, and for this reason she slightly felt that she was forced to do so (line G on page 201 of the appeal bundle). It was against this background that she made her first complaint to the social worker Mr. Lau. The Deputy Judge had to seriously consider whether X had made up the stories with a motive to get what she wanted, i.e. to live with her mother Y.", "zh-HK": "X在庭上用「嗰個衰人」來形容申請人，理由是申請人不去工作，靠問Y拿贍養費 (上訴文件第232 頁E 行)，X有點憎恨申請人 (上訴文件第336 頁U 行)。X‍承認她本人因父親與她一起參加課外活動，而其他同學則多數與母親前往，令她感到有點兒尷尬。她亦覺得其他小朋友的父親工作，母親留在家，而她則剛剛相反而有少少感到她家中情況與人不同 (上訴文件第228 頁M 行)。她有少少覺得申請人無工作，有較多時間去要她參加活動，覺得被逼 (上訴文件第201 頁G 行)。在此背景下，她首次作出投訴是向社工劉‍先生，林‍法官須認真考慮X是否有動機虛構事件，好讓她得償心願，與母親Y同住。" } }, { "doc_id": 165, "seg_id": 68, "translation": { "en": "In this regard, the Deputy Judge said:", "zh-HK": "林‍法官在此範疇說：" } }, { "doc_id": 165, "seg_id": 69, "translation": { "en": "“32..… however desirous girl X might be of living with her mother, it would suffice for her to express her wish to the social worker Lau (or even to a judge of the Family Court). There was absolutely no need for her to weave such stories to drive her own father into this hopeless predicament. ….”", "zh-HK": "「32.…. 無論女童X何其希望能與母親同住，她只須向劉‍社工 (甚至家事法庭) 表達其意願，便十分足夠了，絕對沒有必要無中生有，把親生父親陷於萬劫不復之地。….」" } }, { "doc_id": 165, "seg_id": 70, "translation": { "en": "In the present case, there was no evidence that X knew or believed that it would suffice for her to express her wish to the social worker. Given the special circumstances of the case, the Deputy Judge should have considered whether it was possible for X to make up stories in order to fulfill her hope of living with her mother, and not whether there was “no need” for X to fabricate such stories. It must be noted that there was no evidence to corroborate X’s allegations. We are of course aware that the prosecution was not required to adduce corroborative evidence. However, it would have been easy for X to make the allegations in question; in particular, according to her, the circumstances of each incident of assault were essentially the same, the only difference being that sometimes her upper body was naked. In these circumstances, the Deputy Judge must be even more careful in considering whether X’s evidence was reliable and credible.", "zh-HK": "在本案，無證據顯示X知悉或相信她祇要將其意願向社工表達便足夠。以本案的特殊背景，林‍法官應考慮是否有可能X為了達到能與母親同住而作出虛假指控，而非X是否「沒有必要」無中生有。須知X的指控是無任何佐證的。本庭當然知曉控方無須提供佐證，但事實上X要作出指控亦很容易：尤其是以她所言，基本上每次侵犯的情況完全一樣，祇是有時上身赤裸。在此情況下，林‍法官須更加小心考慮X的證言是否可靠可信。" } }, { "doc_id": 165, "seg_id": 71, "translation": { "en": "Moreover, as X admitted that she had “lied” and that she had “put up a show” in front of the social worker Mr. Lau by pretending to look happy, the Deputy Judge should have indicated in his judgment that he had considered whether X might have made false statements in the present case.", "zh-HK": "再者，既然X承認她曾「說謊」，曾在社工劉‍先生面前「做戲」、假作開心，林‍法官應在判詞顯示他曾考慮X會否在本案亦是作出虛假陳述。" } }, { "doc_id": 165, "seg_id": 72, "translation": { "en": "In relation to Y’s testimony that the applicant had twice assaulted her, we think that the Deputy Judge wrongly took into account the factor that Y had a greater prospect of success than the applicant did (paragraph 31 of the Reasons for Verdict). There was no evidence that Y knew or believed she was in a more advantageous position than the applicant was. In fact, Y gave evidence that her solicitor had advised her that she “must have a stable and secure home, and a well thought-out proposal for the care of your child” before the court would consider “granting [custody of] the child” to Y (lines O to Q on page 247 of the appeal bundle).", "zh-HK": "就Y有關申請人兩次襲擊她的證言，本庭認為林‍法官錯誤考慮Y的勝算較申請人高此範疇 (裁決理由書第31 段)。無證據顯示Y知悉或相信她較申請人有優勢。事實上Y作證時曾表示她的律師曾告知她，她「要有安定居所、有完善照顧小朋友方案」，法庭才會考慮「判小朋友」給Y (上訴文件第247 頁O至Q 行)。" } }, { "doc_id": 165, "seg_id": 73, "translation": { "en": "X had been in the care of the applicant since birth. Y said in the witness box that the legal advice she obtained was that she had to prepare her case properly in order to have a chance to be granted custody of X. The factual basis relied on by the Deputy Judge in ruling out the possibility of Y having made up allegations against the applicant, namely that Y enjoyed certain advantages over him, was unsound.", "zh-HK": "X自出娘胎已由申請人照顧，Y在作證時亦表示以她得到的法律意見是她要做好工夫才有機會成功獲得X的撫養權，林‍法官以Y較申請人優勝此理由來否定Y有可能虛構指控，他所用的事實基礎並不穩妥。" } }, { "doc_id": 165, "seg_id": 74, "translation": { "en": "In the present case, the applicant elected to give evidence. His case was in essence a categorical denial of the allegations of X and Y. He did not have any solid evidence that X and Y falsely accused him. He only surmised that X and Y had fabricated the allegations by reason of the issue of X’s custody.", "zh-HK": "在本案，申請人選擇作證。基本上申請人是全盤否認X及Y的指控。申請人無任何實質證據顯示X及Y誣告他，他祇是猜測X及Y是因為X的撫養權問題而虛構有關指控。" } }, { "doc_id": 165, "seg_id": 75, "translation": { "en": "The burden of proof was on the prosecution. If what the applicant said was true or might be true, then the prosecution had not successfully discharged that burden.", "zh-HK": "舉證責任在控方，若申請人所言屬實或有可能屬實，控方便未能成功舉證。" } }, { "doc_id": 165, "seg_id": 76, "translation": { "en": "In rejecting the applicant’s evidence, the Deputy Judge did specifically mention the fact that the applicant had taken X to Qing Yuan to help the poor. He considered such behaviour of the applicant “difficult to understand” (paragraph 34 of the Reasons for Verdict).", "zh-HK": "林‍法官在拒納申請人的證言時，確是特別提及申請人帶X前往清遠扶貧此行，認為他此舉「難以理解」(裁決理由書第34 段)。" } }, { "doc_id": 165, "seg_id": 77, "translation": { "en": "The applicant and X’s trip to Qing Yuan was an admitted fact. Even before Y went away, the applicant had already been performing voluntary work. The fact that he had taken X to Qing Yuan had nothing to do with whether he had assaulted X. Had the facts shown that the assaults were committed only in places outside Hong Kong and that the applicant had taken X out of Hong Kong on a pretext in order to create an opportunity to molest her, the situation might well have been different. However, on the facts, X slept with the applicant most of the time, and according to X, most of the assaults took place at her home in Hong Kong. Whether the applicant had taken X to do help-the-poor work notwithstanding his financial difficulty was not a factor that the Deputy Judge should take into consideration. As the Deputy Judge wrongly considered whether the Qing Yuan trip was “understandable” in terms of its financial impact, we cast doubt as to the propriety of his rejection of the applicant’s evidence.", "zh-HK": "申請人帶同X前往清遠是承認事實。申請人在Y離家前已參與義工活動，他帶X前往清遠與他曾否侵犯X根本無關。若案情顯示侵犯事件祇是在香港以外的地方發生，申請人借故帶X外遊，藉以製造機會侵犯她，情況會有不同。但在本案，X根本大部份時間是與申請人同睡，而根據X所言，絕大部份的侵犯事宜亦在香港家中發生。申請人是否在經濟拮据下仍帶X前往扶貧，林‍法官根本不應納入考慮之列。由於林‍法官錯誤考慮了清遠之行在經濟方面是否「可理解」，令本庭質疑林‍法官是否恰當拒納申請人的證言。" } }, { "doc_id": 165, "seg_id": 78, "translation": { "en": "In our judgment, the Deputy Judge had not properly considered the evidence in the present case. It was on unsound bases that he accepted the evidence of X and Y and rejected the applicant’s evidence. It follows that the convictions are unsafe and unsatisfactory.", "zh-HK": "本庭認為林‍法官無恰當考慮本案的證據，他信納X及Y證供的基礎及他拒納申請人證供的基礎不當，定罪的基礎因而不安穩。" } }, { "doc_id": 165, "seg_id": 79, "translation": { "en": "For the above reasons, we grant leave to appeal and, treating the application as the appeal proper, we allow the appeal, quash all the convictions and set aside all the sentences.", "zh-HK": "基於上述理由，本庭批准上訴許可申請，並視之為正式上訴。上訴得直，所有定罪及判刑撤銷。" } }, { "doc_id": 165, "seg_id": 80, "translation": { "en": "Ms. Virginia Lau, Senior Public Prosecutor of the Department of Justice, for the HKSAR.", "zh-HK": "答辯人：由律政司高級檢控官劉少儀代表香港特別行政區。" } }, { "doc_id": 165, "seg_id": 81, "translation": { "en": "Ms. Sylvia Lee, instructed by Messrs. Lee Wong & Co., for the Applicant.", "zh-HK": "申請人：由李氏律師行轉聘李曉華大律師代表。" } }, { "doc_id": 166, "seg_id": 1, "translation": { "en": "Hon Barnes J (giving the judgment of the Court):", "zh-HK": "原訟法庭法官張慧玲頒發上訴法庭判案理由書 ：" } }, { "doc_id": 166, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 166, "seg_id": 3, "translation": { "en": "The applicant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. He pleaded not guilty to the charge before Deputy Judge Sham in the District Court but pleaded guilty to possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the said Ordinance. The prosecution no longer proceeded with the trafficking charge, and the summary of facts was amended by deleting the phrase which stated that the applicant “was in possession of the dangerous drug for the purpose of trafficking”. Deputy Judge Sham convicted the applicant of possession of a dangerous drug and sentenced him on that basis. The drug involved was 5.47 grammes of “ice”.", "zh-HK": "申請人本被控一項「販運危險藥物」罪，違反香港法例第134 章《危險藥物條例》第4(1)(a) 及 (3) 條。申請人在區域法院暫委法官沈‍小‍民席前否認控罪，但承認「管有危險藥物」罪，違反上述《危險藥物條例》第8(1)(a) 及 (2) 條。控方遂不再就「販運危險藥物」罪檢控申請人。有關案情亦作出修改，將申請人「管有涉案危險藥物作販運用途」此句刪除。沈‍法官裁定申請人管有危險藥物罪名成立，及以該基礎判刑。涉案的危險藥物是5.47 克「冰毒」。" } }, { "doc_id": 166, "seg_id": 4, "translation": { "en": "The applicant was sentenced to 20 months’ imprisonment. He appeals against this sentence.", "zh-HK": "沈‍法官判處申請人監禁20 個月。申請人就判刑提出上訴。" } }, { "doc_id": 166, "seg_id": 5, "translation": { "en": "Following the hearing, we granted leave to appeal and, treating the hearing as the appeal itself, we allowed the appeal, set aside the sentence of 20 months’ imprisonment and substituted therefor a sentence of 16 months’ imprisonment. Our reasons are set out below.", "zh-HK": "本庭在聆訊後批准上訴許可，並視之為正式上訴。上訴得直，20 個月監禁刑期撤銷，改判16 個月監禁。以下是本庭的理由。" } }, { "doc_id": 166, "seg_id": 6, "translation": { "en": "Admitted facts", "zh-HK": "承認案情" } }, { "doc_id": 166, "seg_id": 7, "translation": { "en": "The facts admitted by the applicant revealed that at the material time, the police searched the room in which the applicant resided and found on a table a bag containing 0.20 gramme of “ice” and 42 re-sealable plastic bags. In addition, a plastic bag containing 5.27 grammes of “ice” was found from a pocket of a men’s jacket inside a wardrobe.", "zh-HK": "申請人承認的案情顯示，警方人員在案發時搜查申請人居住的房間，在枱上找到一包載有0.20 克冰毒的膠袋和42 個可再封口膠袋。另外在衣櫃內一件男裝外套的袋內找到一包載有5.27 克冰毒的膠袋。" } }, { "doc_id": 166, "seg_id": 8, "translation": { "en": "Under caution, the applicant said that all the “ice” was bought by him for $3,000 and was for his own consumption. He also said that the re-sealable plastic packets were to be used for packaging earrings, although he did not have any earrings at the material time.", "zh-HK": "警誡下，申請人指全部冰毒是他以 $3,000購入，供他本人自用。枱上的可再封口膠袋是用作包裝耳環之用，但他當時並無任何耳環。" } }, { "doc_id": 166, "seg_id": 9, "translation": { "en": "The “ice” in question had a street value of $3,916.80.", "zh-HK": "涉案冰毒的巿值是 $3,916.80。" } }, { "doc_id": 166, "seg_id": 10, "translation": { "en": "The applicant’s background and mitigation", "zh-HK": "申請人的背景及求情陳詞" } }, { "doc_id": 166, "seg_id": 11, "translation": { "en": "Deputy Judge Sham obtained a Drug Addiction Treatment Centre (DATC) report before sentence. The report details the applicant’s background, which can be briefly described as follows.", "zh-HK": "沈‍法官在判刑前索取了戒毒所報告書，內容有申請人的詳盡背景資料，本庭祇簡述如下。" } }, { "doc_id": 166, "seg_id": 12, "translation": { "en": "The applicant, aged 38, had 14 previous convictions, six of which were for possession of dangerous drugs. At the material time, he resided with his girlfriend in the room in question. Their daughter was born while he was on bail. He quit schooling after completing Form 3 and had worked variously as an apprentice hairdresser, waiter, transportation worker, etc. At the material time, he worked as a car salesman earning a basic monthly salary of $4,000.", "zh-HK": "申請人年38 歲，有14 項刑事紀錄，其中6 項是管有危險藥物。申請人在案發時與女友居於涉案的房間。在擔保期間，女兒出生。申請人在讀中三後輟學。他曾任理髮學徒、侍應、運輸工人等工作。案發時任汽車經紀，每月底薪為 $4,000。" } }, { "doc_id": 166, "seg_id": 13, "translation": { "en": "The applicant initially took cannabis for fun. Then he started to abuse psychiatric drugs and eventually took to abusing “ice”. He was sentenced to a DATC for treatment in 2009.", "zh-HK": "申請人最初因為貪玩吸食大麻，其後開始濫用精神科藥物，最後更濫用冰毒。在2009 年曾經被判往戒毒所接受治療。" } }, { "doc_id": 166, "seg_id": 14, "translation": { "en": "In mitigation, the then Counsel for the applicant submitted that the applicant had been cooperative with the police and had frankly pleaded guilty, and that birth of his daughter during the bail period had made him realize the importance of family love. He promised the Deputy Judge that he would make contributions to society in future.", "zh-HK": "申請人當時的代表大律師求情時，指申請人與警方合作和坦白認罪。申請人的女兒在他擔保期間出世，令他感到親情可貴。他向沈‍法官承諾他他日會貢獻社會。" } }, { "doc_id": 166, "seg_id": 15, "translation": { "en": "In relation to the “latent risk” factor, Counsel for the applicant submitted that on the facts, the present case was “just social trafficking taken at the highest”, since both the applicant and his girlfriend had “this hobby”. It was submitted that they would not get involved in drugs again after this incident.", "zh-HK": "就「潛在風險」這個範疇，申請人代表大律師指本案案情「極其量祇屬社交性販運」，因為申請人與其女友均有「這種嗜好」。大律師指經此次經歷之後，兩人不會再接觸毒品。" } }, { "doc_id": 166, "seg_id": 16, "translation": { "en": "Reasons for sentence", "zh-HK": "判刑理由" } }, { "doc_id": 166, "seg_id": 17, "translation": { "en": "Taking into account the facts of the case, the background of the applicant and the mitigation put forward on his behalf, and having considered the case of HKSAR v Mok Cho Tik [2001] 1 HKC 261, Deputy Judge Sham considered that the quantity of the “ice” in question was “quite significant” and adopted a starting point of 18 months’ imprisonment. He also considered that the “latent risk” was “rather high” and enhanced the sentence by 12 months. The applicant was given one-third discount in sentence and was sentenced to 20 months’ imprisonment.", "zh-HK": "沈‍法官在考慮了案情、申請人背景、求情陳詞，及考慮了案例莫祖廸 (譯音) 後，認為涉案的冰毒份量「相當之多」，以18 個月為量刑起點。沈‍法官認為「潛在風險」「相當之大」，加刑12 個月，給予申請人三份之一刑期扣減之後，判刑20 個月監禁。" } }, { "doc_id": 166, "seg_id": 18, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 166, "seg_id": 19, "translation": { "en": "The grounds of appeal advanced by Mr Lam, Counsel for the applicant, are essentially as follows:", "zh-HK": "申請人代表林‍漢‍環大律師提出的上訴理由，基本上是指；" } }, { "doc_id": 166, "seg_id": 20, "translation": { "en": "The 18-month starting point adopted by the Deputy Judge is excessive.", "zh-HK": "沈‍法官以18 個月為量刑起點是過重。" } }, { "doc_id": 166, "seg_id": 21, "translation": { "en": "The 12-month enhancement imposed by the Deputy Judge on the ground of “latent risk” is too high.", "zh-HK": "沈‍法官因為「潛在風險」因素加刑12 個月是過高。" } }, { "doc_id": 166, "seg_id": 22, "translation": { "en": "The overall sentence of 20 months’ imprisonment is manifestly excessive.", "zh-HK": "整體而言，20 個月的總刑期是明顯過重。" } }, { "doc_id": 166, "seg_id": 23, "translation": { "en": "Relying on cases such as Mok Cho Tik and HKSAR v Jarhia Kuldeep Singh, CACC 96/2006, Mr Lam submitted that the starting point should be 15 months and the enhancement 6 months, making a total sentence of 14 months.", "zh-HK": "林‍大律師引用莫祖廸、Jarhia Kuldeep Singh等等案例，指量刑起點應是15 個月，加刑應是6 個月，總刑期應是14 個月。" } }, { "doc_id": 166, "seg_id": 24, "translation": { "en": "Respondent’s reply", "zh-HK": "答辯人回應" } }, { "doc_id": 166, "seg_id": 25, "translation": { "en": "Miss Chan, Acting Senior Public Prosecutor for the respondent, replied that in light of all the circumstances of the present case and the applicant’s criminal record, the starting point of 18 months was not excessive, nor was the 12-month enhancement too high, and the overall term of 20 months was by no means manifestly excessive.", "zh-HK": "答辯人代表署理高級檢控官陳‍冰‍華大律師回應指，以本案的所有情況及申請人的犯案紀錄而言，18 個月的量刑起點並非過重，12‍個月的加刑亦非過高，20 個月的總刑期並非明顯過重。" } }, { "doc_id": 166, "seg_id": 26, "translation": { "en": "Miss Chan argued that the circumstances of the applicant were different from the cases cited by Mr Lam. Although the “ice” in question weighed 5.47 grammes, the applicant had six previous convictions for possession of dangerous drugs and abused “ice” together with his cohabiting girlfriend. The 12-month enhancement was (Miss Chan submitted) not excessive.", "zh-HK": "陳‍大律師指申請人的情況有別於林‍大律師所引述的案件。雖則申請人涉及的冰毒是5.47 克，但他有6 次管有危險藥物前科及與同居女友一同濫用冰毒，12 個月加刑幅度並不過份。" } }, { "doc_id": 166, "seg_id": 27, "translation": { "en": "Our views", "zh-HK": "本庭所作的考慮" } }, { "doc_id": 166, "seg_id": 28, "translation": { "en": "The three grounds of appeal can, we think, be dealt with together.", "zh-HK": "本庭認為3 項理由可以一併處理。" } }, { "doc_id": 166, "seg_id": 29, "translation": { "en": "First, in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405, having considered the authorities, the Court of Appeal held that in determining an appropriate sentence for a bona fide drug user who is convicted of simple possession of dangerous drugs, the judges should adopt the following three-step approach (see 407 C to H):", "zh-HK": "首先，上訴庭在溫尚深 (譯音)一案，考慮了以往的案例後，裁定法官在判處一名真正吸毒者管有危險藥物時，應該有以下3 個步驟 (判詞第407 頁C至H 行)：" } }, { "doc_id": 166, "seg_id": 30, "translation": { "en": "“Step 1: The judge should normally determine a starting point of between one year to eighteen months’ imprisonment.", "zh-HK": "意思是步驟 (一) ：一般而言，法官就管有危險藥物罪應定下1 年至18 個月監禁的量刑起點。" } }, { "doc_id": 166, "seg_id": 31, "translation": { "en": "Step 2:The starting point is increased or enhanced to take account of the latent risk factor in order to arrive at a total sentence. This will reflect the risk to society of the drugs being redistributed and finding their way into other hands apart from the offender’s. The latent risk will be determined from all the circumstances in any particular case, including of course the quantity of drugs possessed and the personal circumstances of the offender.", "zh-HK": "步驟 (二) ：此量刑起點可因應該危險藥物被再分配及流入其他人手中的潛在風險而上調。潛在風險須根據每宗案件的整體情況而決定，包括毒品份量及犯案者的個人狀況。" } }, { "doc_id": 166, "seg_id": 32, "translation": { "en": "Step 3:The total sentence is then adjusted to take account of the mitigating factors, such as a guilty plea.”", "zh-HK": "步驟 (三) ：因應求情理由 (如認罪) 而再調整總刑期。" } }, { "doc_id": 166, "seg_id": 33, "translation": { "en": "The Court of Appeal endorsed the above sentencing approach in Mok Cho Tik.", "zh-HK": "上訴庭在莫祖廸 一案確立了以上的判刑步驟。" } }, { "doc_id": 166, "seg_id": 34, "translation": { "en": "In Mok Cho Tik, the Court of Appeal said (at 267 B to E):", "zh-HK": "在莫祖廸 一案，上訴庭指 (判詞第267 頁B至E 行)：" } }, { "doc_id": 166, "seg_id": 35, "translation": { "en": "“Sentencing is an art, and we emphasize that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be. The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”", "zh-HK": "意思是量刑起點及因應潛在風險而上調的幅席必須切合每宗案件的情況。如所涉危險藥物的份量是一名真正吸毒者一般會管有的份量，則量刑起點是介乎12至18個月監禁 (而此量刑起點已被區域法院和高等法院的案件採納)。但這並不表示此量刑起點是唯一的合適量刑起點。這是假設監禁比起更新更為必要。如涉案毒品份量是很少而情況允許，並不排除裁判官可判予較短的刑期。有關的危險藥物份量明顯是決定量刑起點的主要因素。若犯案者是一名積犯，便應預期較高的量刑起點。存在風險因素及程度不能以數學方式計算來訂定量刑準則。有關的考慮因素包括犯案人是否無業、毒品的存放地點能否被其他人接觸到、犯案人是否有干犯販運危險藥物的定罪前科，及毒品份量。法庭必須衡量風險的整體情況。" } }, { "doc_id": 166, "seg_id": 36, "translation": { "en": "In Mok Cho Tik, which involved 15.724 grammes of “ice”, the offender was aged 22 and had one previous conviction for possession of dangerous drugs. He denied selling the drug and said that he would only offer it to people who went to his residence for their consumption. It was not known whether the offender was being employed at the material time. The Court of Appeal took the view that an appropriate starting point was 18 months’ imprisonment and that the sentence was to be enhanced by 12 months to reflect the “latent risk” factor.", "zh-HK": "在莫祖廸 一案，涉案的冰毒是15.724 克。犯罪人22 歲，有一項管有危險藥物的前科。他否認出售冰毒，指他祇是會供應給前往他住所的人服用。無資料顯示犯案人當時是否受僱。上訴庭認為恰當的量刑起點是18 個月，「潛在風險」加刑則為12 個月。" } }, { "doc_id": 166, "seg_id": 37, "translation": { "en": "In Jarhia Kuldeep Singh, which involved 6.82 grammes of “ice”, the offender was aged 27 and unemployed. He was drug-dependent but was not suitable for admission to a DATC. The Court of Appeal said that 6.82 grammes of “ice” was neither small nor large, and did not accept the offender’s allegation that this quantity was sufficient enough for him to consume for 2 or 3 days. The Court of Appeal considered a starting point of 15 months’ imprisonment appropriate and enhanced the sentence by 12 months.", "zh-HK": "在Jarhia Kuldeep Singh一案，涉案的冰毒是6.82 克。犯案人當時年27 歲、無業、有毒癮但不適合往戒毒所接受治療。上訴庭指6.82 克的份量不算高、亦不算低。法庭不接納犯案人指涉案的份量足夠他服用2至3 日。上訴庭認為恰當的量刑起點是15 個月，而加刑的幅度是12 個月。" } }, { "doc_id": 166, "seg_id": 38, "translation": { "en": "In HKSAR v Minney [2011] 3 HKLRD 556, the Court of Appeal further explained the legal principle of “latent risk” (at para. 13(a) of the judgment):", "zh-HK": "在HKSAR v Minney 一案，上訴庭進一步解釋「潛在風險」此法律原則 (第13(a)段)：" } }, { "doc_id": 166, "seg_id": 39, "translation": { "en": "“The word ‘latent’ is misleading, for a consideration of the cases and the rationale for treating the relevant risk as an aggravating factor shows that what is of justifiable societal concern is actual risk disclosed by the facts of the case; in other words, actual risk of dissemination; …”", "zh-HK": "意思是「潛在」此詞有誤導成份。考證以往案件，可見加刑是基於實質風險，因此風險是指實質的散佈風險。" } }, { "doc_id": 166, "seg_id": 40, "translation": { "en": "On the facts of the present case, taking into account that 5.47 grammes of “ice” was involved, we consider that, notwithstanding the applicant’s six previous convictions for possession of dangerous drugs, the appropriate starting point should be 15 months rather than 18 months.", "zh-HK": "本庭認為以本案的案情而言，考慮了涉案的冰毒是5.47 克，即使申請人有6 次管有危險藥物前科，恰當的量刑起點應是15 個月，而非18 個月。" } }, { "doc_id": 166, "seg_id": 41, "translation": { "en": "The applicant has no previous convictions for trafficking in dangerous drugs. His multiple convictions for possession of dangerous drugs and the fact that he had been sentenced to a DATC shows that he was a genuine drug user. At the material time, he had a regular job and the “ice” in question was found by the police at his home. Apart from one bag containing a small quantity of “ice” on the table, there was another bag hidden in a jacket pocket. The presence of 42 re-sealable plastic packets was suspicious but, in view of the quantity of the drug and the circumstances in which it was found at the applicant’s home, the actual risk of the drug being disseminated in society was low. As the applicant had by Counsel submitted to Deputy Judge Sham that his girlfriend also abused “ice”, the risk involved was that the applicant and his cohabiting girlfriend would abuse the drug together.", "zh-HK": "申請人並無販運危險藥物的前科。他多次干犯管有危險藥物罪及曾被判往戒毒中心，可見申請人是真正的吸毒者。申請人犯案時有固定職業，在家中被警員發現冰毒。除了一包少量冰毒在枱上，另外一包藏於衣袋內。雖有42 個可再封口膠袋，情況令人懷疑，以涉案的份量及在家找到冰毒此情況而言，涉案冰毒散佈於社會此實質可能性不大。基於申請人透過其代表大律師向沈‍法官指出申請人女友亦是濫用冰毒者，本案的風險是申請人會與他的同居女友一同濫用冰毒。" } }, { "doc_id": 166, "seg_id": 42, "translation": { "en": "In all the circumstances of the present case, we consider an enhancement of 9 months appropriate.", "zh-HK": "在本案的所有情況下，本庭認為恰當的加刑幅度是9 個月。" } }, { "doc_id": 166, "seg_id": 43, "translation": { "en": "The applicant was entitled to the usual one-third discount on account of his guilty plea. The appropriate sentence should be 16 months’ imprisonment.", "zh-HK": "申請人坦白認罪，可得三份之一刑期扣減。恰當的刑期應為16 個月。" } }, { "doc_id": 166, "seg_id": 44, "translation": { "en": "For the above reasons, we grant leave to appeal. Treating the hearing as the appeal itself, we allow the appeal, set aside the sentence of 20 months’ imprisonment and substitute therefor a sentence of 16 months’ imprisonment.", "zh-HK": "基於上述理由，本庭批准上訴許可，並視之為正式上訴。上訴得直，20 個月的刑期撤銷，改判16 個月監禁。" } }, { "doc_id": 166, "seg_id": 45, "translation": { "en": "Miss Eva Chan, Senior Public Prosecutor (Acting) of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司署理高級檢控官陳冰華代表香港特別行政區" } }, { "doc_id": 166, "seg_id": 46, "translation": { "en": "Mr Nelson Lam, instructed by F. H. Ho & Co. and assigned by the Legal Aid Department, for the Applicant", "zh-HK": "申請人：由法律援助署委派何福海律師行轉聘林漢環大律師代表" } }, { "doc_id": 167, "seg_id": 1, "translation": { "en": "Hon Leong CJHC (giving the judgment of the Court):", "zh-HK": "由高等法院首席法官梁紹中宣讀上訴法庭判案書:" } }, { "doc_id": 167, "seg_id": 2, "translation": { "en": "1.On 6 November 2000, the applicant for leave to appeal (i.e. the defendant) Ng Lok Wan pleaded guilty in the District Court to two counts of burglary. The two charges alleged that the applicant intruded into a residential flat on 6th Floor, No. 9 Tse Mi Alley, Western District on 17 and 19 July 2000 respectively and committed theft therein. On the first occasion, she stole cash in the sum of RMB 700. On the second occasion, she stole a quantity of audio equipment, including, among others, a video-recorder, a radio, a cassette recorder, a CD player and loudspeakers.", "zh-HK": "1．上訴許可申請人（即被告人）吳諾雲於2000年11月6日在區域法院承認兩項入屋犯罪罪名。兩項控罪指申請人在2000年7月17日及19日分別侵入位於西環紫薇街9號6樓一住宅單位偷竊，第一次偷去人民幣700元，第二次偷去一批音響器材包括錄影機，收音機，錄音機，雷射碟機，喇叭等。" } }, { "doc_id": 167, "seg_id": 3, "translation": { "en": "2.When the victim in this case returned home on 17 July 2000, he discovered that his flat had been broken into and ransacked, and that RMB 700 was missing. When he returned home two days later, he discovered that his flat had been burgled again and that the audio equipment itemised in the second charge was missing. He therefore made a report to the police.", "zh-HK": "2．本案事主於2000年7月17日回家時，發現家中曾被人進入搜掠，失去人民幣700元。兩日後，他回家時，又發現家中再次被人進入偷竊，失去第二項控罪所列出之音響器材，事主於是報警。" } }, { "doc_id": 167, "seg_id": 4, "translation": { "en": "3.On the following day, the police found some of the audio equipment which was stolen from the victim at a junk store in Second Street, Western District. The storekeeper told the police that he bought the equipment for a low price from a female. Based on the descriptions of the female given by the storekeeper, the police located the applicant and arrested her.", "zh-HK": "3．次日，警員在西環第二街一收買店找到部份事主失去的音響器材。店主向警員透露，該等器材是一名女子以平價售賣給他的。警方根據店主對該名女子樣貌的描述，找到申請人，將申請人拘捕歸案。" } }, { "doc_id": 167, "seg_id": 5, "translation": { "en": "4.The applicant confessed under caution that she had committed the two offences together with her boyfriend. Her boyfriend broke into the flat to steal, and she was responsible for selling the stolen goods. She had even taken the storekeeper of the junk store to the flat to remove the audio equipment. The fingerprints of the applicant’s right middle finger and right ring finger matched the fingerprints lifted by the police from the flat where the offences took place. The applicant had admitted the above facts.", "zh-HK": "4．申請人在警誡下，承認她與男朋友一同干犯兩案，由男朋友入屋偷竊，她將贓物出售。她並且帶同收買店店主入屋將該批音響器材搬走。申請人右手中指及無名指的指紋與警方在案發單位內套取之指模相符。申請人承認以上的案情。" } }, { "doc_id": 167, "seg_id": 6, "translation": { "en": "5.The applicant was 20 years old. She had one conviction record for theft but had never been sentenced to imprisonment. According to the assessment report of the Correctional Services Department which was obtained before sentencing, the applicant was a drug addict and therefore not suitable for training in the training centre. At the same time, the probation officer thought that probation was not suitable for the applicant.", "zh-HK": "5．申請人20歲，有一次偷竊犯案紀錄，但從未受過監禁刑罰。根據懲教署對申請人判刑前評估報告，申請人是一名吸毒者，不適宜進入教導所接受訓練。感化官亦認為申請人不適宜接受感化。" } }, { "doc_id": 167, "seg_id": 7, "translation": { "en": "6.In sentencing the applicant, the judge referred to the serious nature of the two offences in question and considered a custodial sentence necessary. The judge also took the view that the terms of the two offences were to run consecutively, the reason being that although the two offences took place at the same location, they were separated by an interval of two days. The judge adopted a starting point of 36 months in respect of the first offence and a starting point of 42 months in respect of the second offence. After giving the applicant the discount to which she was entitled on account of her plea of guilty and after considering the totality principle, the judge sentenced the applicant to 42 months’ imprisonment.", "zh-HK": "6．法官判刑時稱申請人所犯兩罪屬嚴重罪行，所以要判申請人監禁。法官又以兩案案發相距兩天，但在同一地點，認為兩案之刑期應分期執行。他以36個月監禁為第一項罪名的刑期起點，42個月監禁為第二項罪名的刑期起點，扣除申請人因認罪應獲得的減刑及調整整體刑罰後，法官判申請人監禁共42個月。" } }, { "doc_id": 167, "seg_id": 8, "translation": { "en": "7.The applicant now seeks leave to appeal against sentence.", "zh-HK": "7．申請人現要求本庭准許她上訴減刑。" } }, { "doc_id": 167, "seg_id": 9, "translation": { "en": "8.The ground of appeal as submitted by counsel for the applicant is essentially as follows. Both offences took place at the same location and involved the same victim. Furthermore, only a short interval of time elapsed between the two offences. The judge should, therefore, have treated them as one single incident and passed a concurrent sentence in respect of the two offences, and the overall sentence should at most be slightly over 3 years. Counsel also submits that the judge should not have fixed a discrete starting point for each individual offence and then discounted each term on account of the plea of guilty; rather, he should have determined an overall sentence for all the offences covered by the two charges before giving the discount for plea. Counsel submits that the trial judge had erred in law. The case of Attorney General v. Lo Ching Fai [1996] 2 HKCLR 19 is cited to support the above argument.", "zh-HK": "8．申請人的代表大律師向本庭陳述的上訴理由，基本是兩項控罪涉及同一犯案地點，同一受害人，而兩案發生時間相距不遠，法官應將兩項控罪作為單一事件處理，將兩項控罪的刑期同期執行，而整體刑罰不應比稍多於三年之刑期重。大律師又指法官不應就每項控罪，先定下個別的刑期起點，然後個別扣除因認罪可獲的減刑，大律師認為法官應依據兩項罪名涉及的所有罪行，定出整體刑期後，方作出扣減。他指原審法官原則上犯錯誤。大律師引用律政司訴盧清輝（譯音）[1996] 2 HKCLR 19一案以支持以上的論據。" } }, { "doc_id": 167, "seg_id": 10, "translation": { "en": "9.Counsel also relies on HKSAR v. Law Fat Chai（香港特別行政區訴羅發仔）Crim App 575 of 1997, the facts of which, it is submitted, were similar to those of the present case. The defendant in that case also pleaded guilty to two counts of burglary. On appeal, the Court of Appeal held that the overall sentence should be 2 years and 3 months.", "zh-HK": "9．大律師更引用香港特別行政區訴羅發仔 Crim App No 575 of 1997一案，指該案案情類似本案，而被告人也認罪。該案牽涉兩項入屋犯法罪。在上訴後，上訴庭認為總刑期應是兩年三個月。" } }, { "doc_id": 167, "seg_id": 11, "translation": { "en": "10.In Lo Ching Fai, the Court of Appeal referred to Attorney General v. Lui Kam Chi [1993] 1 HKC 215 and stated that, in respect of a single offence of burglary in domestic premises, where the defendant is an adult and there are no other aggravating or mitigating factors, the usual starting point is 3 years. If the defendant committed a series of the same offence at different times, the court can adopt a higher starting point in respect of each offence than when there is only a single offence. It is immaterial whether the starting point is fixed on the basis of the sentences being concurrent or consecutive. The important point is, if the sentences are to run concurrently, then the starting point should be higher than when there is only one single charge; if the sentences are to run consecutively, the term for each of the offences must be reduced as appropriate, so that the overall sentence will not become too excessive.", "zh-HK": "10．上訴法庭在盧清輝一案引用律政司訴雷錦池（譯音）[1993] 1 HKC 215一案稱，就單一項進入住宅樓宇犯罪罪名的判刑而論，如果被告人已成年，又無其他可以增加刑罰或減刑的因素，一般刑期起點為三年。如果被告人在不同時間，連串干犯一項以上的同樣罪名，法庭可以較單一項罪名的刑期長的刑期作為每項罪名之刑期起點。無論以同期執行方式或分期執行方式為依據決定刑期起點，都沒有關係。重要的是如果刑期是同期執行，起點必須較單一項罪名的刑罰為高；如果是分期執行，每項罪的刑期必須適當地調低，以免總刑期流於過重。" } }, { "doc_id": 167, "seg_id": 12, "translation": { "en": "11.It has to be pointed out that the key issue in the present appeal against sentence is whether the overall sentence is appropriate. If it is, then it is immaterial how the sentence is arrived at. We are satisfied that the judge was perfectly entitled to treat the two burglary offences which took place at the same place but at different times as separate incidents. On this basis, we see nothing improper with passing consecutive sentences.", "zh-HK": "11．本庭要指出本上訴減刑的關鍵是整體刑罰是否適當，如果是適當的話，法官如何達成所判之刑期就不大重要。本庭認為法官在本案絕對有理由將兩宗在同一地點但不同時間發 生的爆竊罪行視為不同事件，因此判處分期執行刑罰，並無不妥善之處。" } }, { "doc_id": 167, "seg_id": 13, "translation": { "en": "12.It is apparent from the facts of the present case that, when the applicant burgled the flat on the first occasion, she realised that the flat was unattended, and the crime went off without a hitch. She was emboldened by this experience to the extent of committing theft on an even larger scale two days later. The applicant was plainly flouting the law and treating other’s properties as her own. In our view, the circumstances of the second burglary were far more serious than those of the first offence.", "zh-HK": "12．從本案案情可見，申請人干犯第二項控罪是由於她在第一次入屋偷竊時，知道屋內沒有人，犯案如此得心應手而獲得鼓勵，繼而變本加厲，在兩日後進行更大規模的偷竊，可見申請人視法律為無物，對他人財物視為己有。本庭認為第二次入屋偷竊的情況比第一次嚴重得多。" } }, { "doc_id": 167, "seg_id": 14, "translation": { "en": "13.Having regard to the facts of this case, the background of the applicant, and the fact that the applicant had hitherto not been sentenced to imprisonment, we take the view that the sentence of 3½ years upon the applicant’s plea of guilty, which means a starting point of over 5 years, is excessive. A more appropriate overall sentence should, in our view, be 3 years, and leave to appeal is granted accordingly. In coming to this conclusion, we have also taken into account the sentence passed in Law Fat Chai and the similarity between the facts of that case and those of the present case. We therefore conclude that the starting point for the first offence should be 3 years, and the starting point for the second offence, which was even more serious, should be 4½ years. As the two sentences are to run concurrently, the overall starting point should be 4½ years. And as the applicant pleaded guilty and is therefore entitled to a one-third discount, the term should be reduced to 3 years. We allow the applicant’s appeal, set aside the original sentence and replace it with the above sentence.", "zh-HK": "13．本庭考慮本案案情和申請人背景後，及因這次監禁是申請人首次入獄，認為申請人認罪後，法官判監三年半，即以超過五年的刑期為起點，實為過重。本庭認為本案的總刑期應為三年，因此本庭批准上訴許可，本庭達成此結論亦因羅發仔一案所判之刑期及該案之案情與本案案情相似。因此本庭認為第一項控罪之刑期起點應為三年，第二項控罪因較第一項嚴重，刑期起點應為四年半，但兩項刑期同期執行，即總刑期起點為四年半，鑑於申請人認罪扣減三分之一刑期，所以申請人的刑期應為三年。本庭批准上訴，將原判之刑期擱置而代以上述之刑期。" } }, { "doc_id": 167, "seg_id": 15, "translation": { "en": "Ms Denise Chan, Government Counsel, for the HKSAR.", "zh-HK": "控方 : 由律政司陳鳳珊大律師代表香港特別行政區政府。" } }, { "doc_id": 167, "seg_id": 16, "translation": { "en": "Mr Andy Hung, instructed by the Legal Aid Department, for the defendant.", "zh-HK": "辯方 : 由法律援助署委派孔慶碩大律師代表被告人。" } }, { "doc_id": 168, "seg_id": 1, "translation": { "en": "Hon Cheung JA (giving the judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案書：" } }, { "doc_id": 168, "seg_id": 2, "translation": { "en": "The Appellant pleaded guilty in the District Court to six counts of fraud, contrary to section 16A of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong, and was sentenced to 20 months’ imprisonment by Deputy District Judge Woodcock. Having obtained leave, the Appellant now appeals against sentence.", "zh-HK": "上訴人承認六項欺詐罪，違反香港法例第 210 章《盜竊罪條例》第 16(A) 條，被區域法院暫委法官胡雅文判處 20 個月監禁。上訴人獲法庭批予許可可就刑期提出上訴。" } }, { "doc_id": 168, "seg_id": 3, "translation": { "en": "Facts", "zh-HK": "案情" } }, { "doc_id": 168, "seg_id": 4, "translation": { "en": "In 2004, the Appellant, without the consent of her employer, made use of her employer’s particulars to apply to six credit card companies for credit cards. Five of the applications were successful and the Appellant was therefore issued with the credit cards as particularised in Charges 1, 2, 3, 5 and 6 against her. She used four of the cards (namely, the cards involved in Charges 1, 2, 3 and 6) and spent approximately $120,000 in various transactions. She has never used the credit card involved in Charge 5.", "zh-HK": "2004 年上訴人在受僱期間私自使用僱主的個人資料分別向六間信用咭公司申請，並成功獲得其中五間信用咭公司發出的信用咭，即控罪一、二、三、五及六所涉及的信用咭。申請人使用過其中四張信用咭（即控罪一、二、三及六的信用咭）來簽賬消費約 $120,000。上訴人沒有使用過第五項控罪的信用咭。" } }, { "doc_id": 168, "seg_id": 5, "translation": { "en": "On 21 December 2004, the police received a complaint and arrested the Appellant on the same day. She admitted to the offence both at the time of arrest and in the subsequent records of interviews with the police. On 21 December, 22 December 2004 and 13 April 2005, she provided the police with a total of four cautioned statements.", "zh-HK": "2004 年 12 月 21 日警方在接獲舉報後於同日拘捕上訴人。上訴人在被拘捕時及之後與警方的會面記錄中均承認本案的控罪。上訴人在 2004 年 12 月 21 日、12 月 22 日及 2005 年 4 月 13 日分別向警方提供了四份警誡供詞。" } }, { "doc_id": 168, "seg_id": 6, "translation": { "en": "On 6 July 2005, the Appellant was given an unconditional discharge by the police. However, she was arrested by the police again on 11 September 2006 and was prosecuted and brought to the Eastern Law Courts on 22 September 2006. The case was subsequently transferred to the District Court. At the first hearing before the District Court on 27 October 2006, the Appellant indicated that she would plead guilty to all the charges.", "zh-HK": "2005 年 7 月 6 日，上訴人獲警方無條件釋放，但在 2006 年 9 月 11 日再次被警方拘捕，並於 2006 年 9 月 22 日在東區裁判法院被正式起訴。案件其後被移交至區域法院審理。上訴人於 2006 年 10 月 27 日在區域法院第一次聆訊時向法庭表示她會承認所有控罪。" } }, { "doc_id": 168, "seg_id": 7, "translation": { "en": "The Appellant pleaded guilty to the six charges on 13 November 2006 before Deputy Judge Woodcock. On 27 November 2006, Deputy Judge Woodcock determined the sentence as follows: a starting point of 3 years’ imprisonment was adopted for Charges 1, 2, 3 and 6. The term was reduced by one-third on account of the Appellant’s guilty plea and then further reduced by 4 months as the Appellant had paid off all credit card debts. The term was therefore reduced to 20 months. For Charges 4 and 5, a starting point of 2 years and 6 months was adopted and the term was reduced by one-third to 20 months on account of the Appellant’s guilty plea. All sentences were to run concurrently, making the total term of 20 months.", "zh-HK": "2006 年 11 月 13 日上訴人在胡法官席前承認六項控罪。胡法官於 2006 年 11 月 27 日作出量刑：第一、二、三及六項控罪的量刑基準為三年監禁，因上訴人承認控罪，扣減其三分之一刑期，又因她已清還了所有信用咭簽賬的欠款而再扣減四個月的刑期，實際刑期為 20 個月監禁；第四及第五項控罪，兩年六個月為量刑基準，因上訴人承認控罪而扣減其三分一的刑期後，實際刑期為 20 個月監禁；所有刑期同期執行，總刑期為 20 個月監禁。" } }, { "doc_id": 168, "seg_id": 8, "translation": { "en": "Breach of Trust", "zh-HK": "破壞誠信" } }, { "doc_id": 168, "seg_id": 9, "translation": { "en": "The present case involves a breach of trust. The Appellant made use of her employer’s personal particulars to apply for and obtain a number of credit cards and then used four of them. For the four charges in respect of which the credit cards had been used, we consider the starting point of 3 years adopted by Deputy Judge Woodcock to be appropriate. It was also appropriate to reduce the term by 4 months on the ground that the Appellant has paid off all outstanding sums resulting from the transactions she made with those four credit cards. For the remaining two charges, in view of the fact that one of the credit card companies did not issue the Appellant with a card and that the Appellant did not use another credit card issued, it was appropriate for Deputy Judge Woodcock to adopt 2½ years as the starting point. Nor do we see anything improper in the order for concurrent sentence.", "zh-HK": "本案是一項涉及破壞誠信的案件。上訴人使用僱主的個人資料申請及獲得多張信用咭，並曾使用過其中的四張信用咭。本庭認為胡法官就上訴人使用過信用咭的四項控罪以三年監禁為量刑基準是適當的及因上訴人已清還了這四張信用咭的簽賬欠款而再扣減四個月的監禁刑期亦是適當的；另外胡法官因其中一間信用咭公司沒有批出信用咭和上訴人沒有使用過另一張信用咭而以兩年半監禁為其餘兩項控罪的量刑基準亦是適當的。本庭認為胡法官命令所有刑期須同期執行也是適當的。" } }, { "doc_id": 168, "seg_id": 10, "translation": { "en": "Delay in prosecution", "zh-HK": "檢控延誤" } }, { "doc_id": 168, "seg_id": 11, "translation": { "en": "However, this case has an exceptional feature, namely a delay in prosecution. Upon being arrested on 21 December 2004, the Appellant admitted to all the offences with which she subsequently came to be charged. However, she was not formally charged until 22 September 2006. This translates to a delay in prosecution for as long as 21 months.", "zh-HK": "不過，本案存在一個特別情況，就是檢控程序出現延誤。上訴人在 2004 年 12 月 21 日被警方拘捕時已即時招認了本案所有控罪，但直至 2006 年 9 月 22 日她才被正式起訴，即延誤長達 21 個月。" } }, { "doc_id": 168, "seg_id": 12, "translation": { "en": "In a detailed written submission, Mr. Lai, Acting Senior Government Counsel for the Respondent, pointed out that the four cautioned statements provided by the Appellant during those 21 months did not cover the entire prosecution case, for example:", "zh-HK": "代表答辯人的黎嘉誼署理高級政府律師提供了一份詳細的書面陳詞，他表示在該 21 個月期間，上訴人所提供的四份警誡供詞不足以包含整個控方案情，例如：" } }, { "doc_id": 168, "seg_id": 13, "translation": { "en": "The statements did not reveal whether any other undisclosed credit cards and victims were involved, the actual number of transactions and amounts involved, the actual number of cash overdrafts and amounts involved, etc.;", "zh-HK": "有沒有涉及其他未被透露的信用咭、其他受害人、實際簽賬次數及數額、實際現金透支額及次數等；" } }, { "doc_id": 168, "seg_id": 14, "translation": { "en": "The police had to collect evidence from six credit card centres, and three of them supplied complete information, documents and/or statements only at a late stage;", "zh-HK": "警方需要向六間信用咭中心搜集証據，有一半的機構較遲才向警方提供齊全的資料、文件或口供；" } }, { "doc_id": 168, "seg_id": 15, "translation": { "en": "It took time for the police to conduct investigations on and collect evidence from the shops where the transactions had been made in order to obtain particulars of the transactions. Since as many as 19 shops were involved and some of them had relocated during the investigation period, the police needed time in locating them. Furthermore, as the transactions were made quite some time ago, it took time for the shops to check the relevant records; and", "zh-HK": "警方需時向曾接受那些信用咭購物消費之商店進行調查及取証，以獲取有關交易的詳細資料，因涉及的商店眾多（19 家），其中一些已經在調查期間遷離原址，警方需時追查。另外，因交易已在相當時間之前進行，各商店需時翻查記錄；及" } }, { "doc_id": 168, "seg_id": 16, "translation": { "en": "The police sought legal advice from the Department of Justice twice, namely on 17 February 2006 and 7 July 2006.", "zh-HK": "警方兩次從律政司取得法律意見，即 2006 年 2 月 17 日及 2006 年 7 月 7 日。" } }, { "doc_id": 168, "seg_id": 17, "translation": { "en": "In our view, much as the police needed time to collect evidence, a delay of 21 months was still an inordinate one. The offences admitted by the Appellant at the very beginning were exactly the same as those with which she was charged in the end, and no further charges were laid against her following police investigations. In our judgment, the Respondent has failed to give good reasons for the delay.", "zh-HK": "本庭認為即使警方需要時間搜集証據，但 21 個月的延誤實在是一個極為嚴重的延誤。上訴人當初所承認的控罪亦是她最終被控的控罪。警方沒有在調查案件之後向她加控其他罪行。本庭認為答辯人未能合理地解釋延誤。" } }, { "doc_id": 168, "seg_id": 18, "translation": { "en": "Where there has been a delay in prosecution, the sentencing court must take it into account. In particular, where the defendant rehabilitated, resumed work or repaid debts during the period of delay, the court will consider reducing the term of imprisonment, passing a suspended sentence or imposing a punishment other than an immediate custodial sentence, such as a community service order.", "zh-HK": "法庭在量刑時必須考慮案件是否存在檢控延誤的情況，若有的話，特別是在延誤期間，被告人更新、重新投入工作或償還欠債，法庭是會考慮扣減其刑期或判處緩刑或其他非即時監禁的刑罰，如社會服務令。" } }, { "doc_id": 168, "seg_id": 19, "translation": { "en": "Secretary for Justice v. Hui Siu Man [1999] 2 HKLRD 236 and HKSAR v. Chan Yuk Kwan CACC 26/2001 are two of the cases that illustrate the court’s approach to a delay in prosecution. In Hui Siu Man, which also involved an offence of a breach of trust, there was a 12-month delay in prosecution. The trial judge sentenced the defendant to 21 months’ imprisonment but suspended for 3 years, and this sentence was affirmed by the Court of Appeal. In Chan Yuk Kwan, where prosecution was delayed for 18 months, the Court of Appeal arrived at the final sentence by taking a discount of 50% from the starting point. See also HKSAR v. Chiu Peng [2001] 1 HKLRD 185.", "zh-HK": "Secretary for Justice v. Hui Siu Man (律政司司長訴許兆文 （譯音）1999 2 HKLRD 236) 及 HKSAR v. Chan Yuk Kwan (香港特區政府訴陳玉群（譯音）CACC 26/2001) 是兩宗法庭審理延誤檢控的案例。在許兆文 一案，案件涉及破壞誠信，但檢控延誤達 12 個月。原審法官判處被告人 21 個月監禁，緩刑三年。上訴法庭同意有關判決。在陳玉群 一案，檢控延誤達18 個月，上訴法庭將量刑基準扣減百分之五十作為最終刑期。另見：HKSAR v. Chiu Peng (香港特區政府訴趙朋（譯音）2001 1 HKLRD 185)。" } }, { "doc_id": 168, "seg_id": 20, "translation": { "en": "In the present case, the sentence imposed by Deputy Judge Woodcock has not taken into account the delay in prosecution.", "zh-HK": "胡法官的量刑沒有考慮到有關的延誤。" } }, { "doc_id": 168, "seg_id": 21, "translation": { "en": "Circumstances of the present case", "zh-HK": "本案的情況" } }, { "doc_id": 168, "seg_id": 22, "translation": { "en": "Subsequent to her arrest, the Appellant not only paid off all outstanding debts, but was also employed by another company as a secretary between January 2005 and October 2006. Following the sentence imposed by Deputy Judge Woodcock, the Appellant has to date been imprisoned for more than 8 months. If she is good behaviour, she can expect to be released on 23 December of this year. In light of the exceptional feature of the present case, namely the long and inordinate delay in prosecution, and taking into account that the Appellant rehabilitated, resumed work and repaid the debts during the period of delay, the sentence should be varied to enable the Appellant to be released immediately.", "zh-HK": "本案上訴人在被拘捕後不但償還了有關的欠款，更於 2005 年 1 月 至 2006 年 10 月期間受聘於另一間公司，任職秘書。根據胡法官的判決，上訴人至今已被監禁超過八個月，若她行為良好，她將會在本年 12 月 23 日被釋放。基於本案的特殊情況，即上述所說的頗長及嚴重的檢控延誤及上訴人在這段期間內更生、重新投入社會工作及償還欠債，法庭是應該更改刑期，讓上訴人獲得即時釋放。" } }, { "doc_id": 168, "seg_id": 23, "translation": { "en": "Conclusion", "zh-HK": "總結" } }, { "doc_id": 168, "seg_id": 24, "translation": { "en": "We allow the appeal and order that the Appellant be released forthwith.", "zh-HK": "本庭批准上訴，判上訴人即時釋放。" } }, { "doc_id": 168, "seg_id": 25, "translation": { "en": "Mr. Ned Lai, Acting Senior Government Counsel, for the Respondent", "zh-HK": "答辯人：由律政司署理高級政府律師黎嘉誼代表。" } }, { "doc_id": 168, "seg_id": 26, "translation": { "en": "The Appellant in person", "zh-HK": "申請人：無律師代表，親自出席。" } }, { "doc_id": 169, "seg_id": 1, "translation": { "en": "Hon Yeung VP and Yuen JA (giving the reasons for judgment of the Court):", "zh-HK": "高等法院上訴法庭副庭長楊振權及上訴法庭法官袁家寧頒發上訴法庭判案理由書：" } }, { "doc_id": 169, "seg_id": 2, "translation": { "en": "Introduction", "zh-HK": "引言" } }, { "doc_id": 169, "seg_id": 3, "translation": { "en": "Around 10:52 p.m. on 15 February 2012, Wu Yuen Fai, the victim in the present case, was injured in an attack outside “Man Lee Snack Shop” (transliteration) on the ground floor of Tai Po Plaza. Chung Chi Fai, the applicant herein, was said to have been involved in the incident and was arrested by the police on 23 February 2012 for the offence of “wounding with intent”. Under caution, the applicant said, “Ah Sir, I did not do it. I was at a betting centre on that day placing bets on horses until the 6th or 7th race, and then I returned home.”", "zh-HK": "2012年2月15日晚上約10時52分，胡遠輝（受害人）在大埔廣場地下“萬利小食”外遭人襲擊受傷。申請人（鍾志輝）被指和事件有關，並在2012年2月23日遭警方以“有意圖而傷人”罪拘埔。警誡下，申請人說：“阿Sir，我無做過，果日我係投注站賭馬，賭到6至7場就番屋企。”" } }, { "doc_id": 169, "seg_id": 4, "translation": { "en": "At 11 p.m. on 23 February 2012 the applicant voluntarily attended a video-recorded interview with Detective Sergeant 50569 and Police Constable 47952 in respect of the incident. At the interview the applicant reiterated that he was not at the scene when the incident occurred. He said that on that day he was at the Tai Po Plaza betting centre placing bets until the 6th or 7th race and returned home at 10 p.m. to go to bed. He said that he did not know the victim and that he did not carry any sharp object on his person on the day of the incident.", "zh-HK": "同日晚上11時，申請人因上述事件自願和偵緝警長50569號和警員47952號進行錄影會面。申請人重申案發時，他不在案發現場。他指當天自己在大埔廣場馬會投注站下注至第六、七場後，在晚上10時返家睡覺。申請人表示不認識受害人，而案發當天亦沒有帶任何利器在身上。" } }, { "doc_id": 169, "seg_id": 5, "translation": { "en": "Prosecution witness Miss Chong Po Ching (Miss Chong) witnessed the incident. At an identification parade held on 24 February 2012, she identified the applicant as the man who attacked the victim on the evening of 15 February 2012 outside Man Lee Snack Shop.", "zh-HK": "證人莊寶貞小姐（莊小姐）在現場目睹案發經過。2012年2月24日，莊小姐在認人手續認出申請人就是在2012年2月15日晚上於“萬利小食”外襲擊受害人的男子。" } }, { "doc_id": 169, "seg_id": 6, "translation": { "en": "As a result of the incident, the applicant was charged with one count of wounding with intent, contrary to section 17 of the Offences against the Person Ordinance. He pleaded not guilty and was tried before Barnes J (the trial judge) and a jury.", "zh-HK": "事件導致申請人被控一項有意圖而傷人罪，違反《侵害人身罪條例》第17條。申請人否認控罪，並在高等法院原訟法庭法官張慧玲（原審法官）會同陪審團席前受審。" } }, { "doc_id": 169, "seg_id": 7, "translation": { "en": "On 16 November 2012, the jury convicted the applicant on the charge. On 30 November 2012, he was sentenced to 17 years’ imprisonment. Represented by Mr David Ma and Ms Fiona Nam of Counsel, the applicant applied for leave to appeal the conviction and sentence. At the conclusion of the hearing, we granted the applicant leave to appeal the conviction but dismissed the appeal. We also allowed his application for leave to appeal the sentence and, treating the application as the appeal proper, allowed his appeal against sentence and reduced the sentence from 17 to 15 years. The reasons for judgment are set out below.", "zh-HK": "2012年11月16日，申請人遭陪審團裁定罪名成立，並在2012年11月30日被判入獄17年。申請人不服定罪及判刑，由馬維騉大律師及藍凱欣大律師代表提出申請，要求獲就定罪及/或判刑上訴。經聆訊後，本庭批准申請人就定罪提出的上訴許可申請，但駁回他就定罪的上訴；本庭另批准他就判刑提出的上訴許可申請，並視其申請為正式上訴，本庭裁定申請人就判刑的上訴得直，並將其刑期由17年減至15年。以下是本庭的判案理由。" } }, { "doc_id": 169, "seg_id": 8, "translation": { "en": "Issue in dispute", "zh-HK": "案件爭議點" } }, { "doc_id": 169, "seg_id": 9, "translation": { "en": "It was not under dispute that the victim was attacked on the evening in question and sustained extremely serious injuries, including a 25-cm long laceration wound to the neck. The main issue at trial was whether or not the applicant was the assailant.", "zh-HK": "受害人在案發當晚遭人襲擊，令他蒙受極為嚴重的傷勢，包括頸部一條長達25厘米的裂傷是不爭的事實。原審時的主要爭議點是申請人是否就是襲擊受害人的罪犯。" } }, { "doc_id": 169, "seg_id": 10, "translation": { "en": "Prosecution evidence", "zh-HK": "控方證據" } }, { "doc_id": 169, "seg_id": 11, "translation": { "en": "At the time of the incident, the victim, Miss Chong and Chan Mei Han (Miss Chan) were having a meal at Man Lee Snack Shop. As it was crowded inside the shop, the trio went outside, where there were three tables, and sat at the middle table. Miss Chong and Miss Chan sat respectively on the right side and left side of the applicant, who was then facing Man Lee Snack Shop with the Plaza behind him. Shortly after the trio began eating, a man suddenly approached the victim from the betting centre in the Plaza, cut his neck with a sharp object, and then left the scene immediately in the direction of the bus terminus.", "zh-HK": "事發時，受害人和莊小姐及陳美嫻（陳小姐）在“萬利小食”用餐，由於店舖內人多，三人選擇在店舖外三張檯的中間一張就坐。當時受害人面向“萬利小食”、背向廣場，莊、陳兩位小姐則分別坐在受害人右、左兩邊。當三人進食不久，突然有一名男子由廣場投注站方向走至受害人，用利器他的頸部後，便立刻離開現場，走向巴士總站。" } }, { "doc_id": 169, "seg_id": 12, "translation": { "en": "The victim said the sudden attack threw him into a panic. He had no idea why he was attacked for no reason. This notwithstanding, he was able to describe his assailant as someone who stood about 1.7 metres tall and was wearing a dark green windbreaker.", "zh-HK": "受害人表示事出突然，他驚惶失措，不明白為何會遭人無故襲擊。但他仍能描述襲擊者約1.7米高，穿一件墨綠色風褸。" } }, { "doc_id": 169, "seg_id": 13, "translation": { "en": "Miss Chong witnessed the course of the incident. She said that before the attack, the assailant looked towards her and Miss Chan and gave a grin, and then he immediately threw his arm around the neck of the victim, gave him a pull to the right, and turned round to hurry off the scene. But after taking four to five steps, he turned his head to give a sly grin, which sent chills down her spine. Miss Chong said the assailant then turned round to make for the bus terminus. The victim knelt on the ground after being attacked. His neck was covered in blood.", "zh-HK": "莊小姐目睹事發經過。她表示襲擊者襲擊受害人前，有望向她及陳小姐，先笑了一笑，隨即便用手臂箍受害人的頸，向右一拖後，便轉身急步離開，但走了4至5步後，就回頭奸笑一下，令她感到心賽。莊小姐指襲擊者之後掉轉頭向車站走去。受害人受襲後，跪在地上，滿頸鮮血。" } }, { "doc_id": 169, "seg_id": 14, "translation": { "en": "Miss Chong said it was only a matter of 5 to 6 seconds between the time the assailant emerged to attack the victim and the time he left the scene. She said the assailant was about 30 years old, 1.7 metres tall, of medium build, wearing a green windbreaker and not wearing any glasses or cap.", "zh-HK": "莊小姐指由襲擊者出現襲擊受害人至離開現場，前後過程只是約5至6秒。莊小姐指襲擊者約30歲、1.7米高、中等身材、身穿綠色風褸、沒有帶眼鏡或帽。" } }, { "doc_id": 169, "seg_id": 15, "translation": { "en": "Miss Chan also said that she saw the assailant walk up behind the victim from the betting centre. She said that the assailant leaned forward, looked at the victim, “scraped” his neck right away, and then turned round immediately to make for the bus terminus. She was unable to describe the appearance of the assailant.", "zh-HK": "陳小姐亦指見到襲擊者從投注站行近至受害人後面，先向前傾斜，望向受害人，隨即“刮”了他的頸部後便立刻轉身走向巴士站。陳小姐不能描述襲擊者的外貌。" } }, { "doc_id": 169, "seg_id": 16, "translation": { "en": "According to the medical evidence, the laceration wound on the victim’s neck was as long as 25 cm. The wound was not deep at both ends but was deeper in the middle, going beneath the subcutaneous layer of fat and with parts of it going even deeper than the subcutaneous tissue albeit not approaching the deep muscle. Fortunately, only the arteriole of the victim was cut and the aorta was not affected, although the injury to the nerve cords would result in numbness in the neck.", "zh-HK": "根據醫生的證供，受害人的頸部裂傷長達25厘米，頭尾較淺中間較深，過了皮下脂肪，部分更深過皮下組織，但不至深層肌肉。幸好受害人只是細動脈受割，不影響大動脈，但頸部會因神經線受傷而有麻痺感覺。" } }, { "doc_id": 169, "seg_id": 17, "translation": { "en": "The incident was captured on six CCTVs at the betting centre and Tai Po Plaza. There was footage showing the applicant turning up at the staircase by the betting centre. If he turned right, he would walk past the entrance of the betting centre towards Man Lee Snack Shop. There was also footage showing that from 10:51:39 p.m. to 10:51:47 p.m. the applicant came out of the staircase and walked past the entrance of the betting centre towards the victim. His conduct was consistent with the allegation that he was the assailant of the victim. Further, the footage showed that the applicant was at that time wearing a green upper garment, a pair of jeans and white shoes — the same clothing as that of the assailant.", "zh-HK": "案發經過被投注站及大埔廣場的六部閉路電線拍下，有鏡頭顯示申請人在投注站旁的樓梯間出現。如他右轉便會橫過投注站門口向“萬利小食”，亦有鏡頭顯示在晚上10時51分39至47秒，申請人走出樓梯及行過投注站門口，走向受害人。其行為和指他襲擊受害人的說法吻合。鏡頭更顯示當時申請人身穿綠色上衣、牛仔褲和白色鞋，其衣著和襲擊者的衣著相同。" } }, { "doc_id": 169, "seg_id": 18, "translation": { "en": "Records of the Jockey Club showed that there were eight races on the evening in question. Races 5, 6, 7 and 8 began at 9:15 p.m., 9:45 p.m., 10:17 p.m. and 10:52 p.m. respectively.", "zh-HK": "根據馬會記錄，案發當晚有8場賽事，第5、6、7、8場賽事的開跑時間分別是9:15pm、9:45pm、10:17pm和10:52pm。" } }, { "doc_id": 169, "seg_id": 19, "translation": { "en": "Applicant’s defence", "zh-HK": "申請人的答辯理由" } }, { "doc_id": 169, "seg_id": 20, "translation": { "en": "The applicant neither testified in his own defence nor called any witness. His position was that he was not the assailant and that Miss Chong had identified him by mistake.", "zh-HK": "申請人沒有作供自辯，亦沒有傳召證人作供。他的立場是他並非襲擊者，而莊小姐是認錯了他。" } }, { "doc_id": 169, "seg_id": 21, "translation": { "en": "Trial judge’s directions to jury", "zh-HK": "原審法官向陪審團的指引" } }, { "doc_id": 169, "seg_id": 22, "translation": { "en": "The trial judge gave a detailed account to the jury of the prosecution evidence on the facts of the case, in particular the circumstances of the incident and the CCTV records.", "zh-HK": "原審法官就案情事實有向陪審團詳細複述控方的證據，特別是案發的經過及閉路電話拍下的記錄。" } }, { "doc_id": 169, "seg_id": 23, "translation": { "en": "The trial judge pointed out that, in light of the victim’s neck injury, it should not be difficult for the jury to conclude that the victim had suffered grievous bodily harm in the incident. The crucial issue was whether the applicant was the assailant.", "zh-HK": "原審法官指出以受害人頸部的傷勢而言，陪審團應不難認定事件令受害人有嚴重傷害，而事件的重點是申請人是否就是行兇者。" } }, { "doc_id": 169, "seg_id": 24, "translation": { "en": "The trial judge gave the jury the following directions in writing regarding the essential elements of the charge:", "zh-HK": "原審法官有就控罪的要素向陪審團作出以下書面指引：" } }, { "doc_id": 169, "seg_id": 25, "translation": { "en": "“Wounding with intent", "zh-HK": "“有意圖而傷人" } }, { "doc_id": 169, "seg_id": 26, "translation": { "en": "You must be sure of the following before you can convict the defendant of this offence:", "zh-HK": "你們先要肯定以下事項，才可裁定被告此項罪行罪名成立：" } }, { "doc_id": 169, "seg_id": 27, "translation": { "en": "That the victim Wu Yuen Fai suffered grievous bodily harm;", "zh-HK": "胡遠輝（受害人）身體受到嚴重傷害；" } }, { "doc_id": 169, "seg_id": 28, "translation": { "en": "That the defendant unlawfully caused the victim Wu Yuen Fai to suffer grievous bodily harm;", "zh-HK": "被告非法令胡遠輝（受害人）身體受到嚴重傷害；" } }, { "doc_id": 169, "seg_id": 29, "translation": { "en": "That the defendant intended (intentionally) to cause grievous bodily harm to the victim Wu Yuen Fai, or that the defendant actually foresaw that his acts might cause grievous bodily harm to the victim Wu Yuen Fai and yet, in disregard of that risk, proceeded with his actions when, in all the circumstances known to him, it was unreasonable for him to take the risk and do the acts. This is what the word ‘maliciously’ in the indictment means.”", "zh-HK": "被告意圖（蓄意）令胡遠輝（受害人）身體受到嚴重傷害，或實際上已預見得到他的行為，可能令胡遠輝（受害人）身體受到嚴重傷害，然而，卻仍不顧這種風險，繼續做出那些行為，而以被告所知悉的所有環境情況而言，被告仍冒險而有所作為是不合理的。這就是公訴書上‘惡意’一詞的意思。”" } }, { "doc_id": 169, "seg_id": 30, "translation": { "en": "In her oral directions to the jury, the trial judge repeated the above directions and then elaborated on the aforesaid three elements. In respect of the third element, she directed the jury in the following terms:", "zh-HK": "向陪審團作出口頭指引時，原審法官先複述上述書面指引，再就上述三項因素闡述，就第三項要素，原審法官向陪審團的指引如下：" } }, { "doc_id": 169, "seg_id": 31, "translation": { "en": "“The third [element] is that the defendant intended to cause grievous bodily harm to the victim Wu Yuen Fai, or the defendant actually foresaw that his acts might cause grievous bodily harm to the victim Wu Yuen Fai and yet [um] disregarded that risk and proceeded with such acts when, in all the circumstances known to the defendant, it was unreasonable for him to take the risk and do such acts. This is what the word ‘maliciously’ in the indictment means. Again, let us leave aside the question of whether it was the defendant, but look at it in terms of the attacker, the assailant. First, the assailant intended to cause bodily harm to the victim Wu Yuen Fai. Second, the assailant actually foresaw that his acts might cause grievous harm to the victim Wu Yuen Fai. I do not propose to read out the rest, which is already set out in writing. Clearly, there are two parts. First, there was the intention. It is only when you cannot be sure that there was the intention that you have to look at the next part, namely recklessness. This is how to look at it.” (emphasis added)", "zh-HK": "“第三個，就係話被告人意圖令胡遠輝（受害人）身體受到嚴重傷害或者實際上已經預見佢嘅行為可能令到胡遠輝（受害人）身體受到嚴重傷害，然而仍然佢（唔）不顧呢個風險繼續做出呢個行為，而以被告所知悉所有環境情況而言，被告仍然冒險有呢個作為係唔合理嘅，呢個就係公訴書上「惡意」一詞嘅意思。又係唔好講係咪被告先，用行兇者、襲擊者嚟睇喇，咁呢個襲擊者，首先第一樣就係意圖令胡遠輝（受害人）身體受到傷害，而第二樣就係話實際上已經預見到佢嘅行為可能令到胡遠輝（受害人）受到嚴重傷害喇，我唔讀其他，即係已經寫咗出嚟嗰個喇。好明顯就分兩部分，第一部分就係有意圖，如果你哋唔能夠肯定有意圖，就先睇下嗰部分，嗰個部分就即係罔顧，咁樣去睇嘅。”（劃線後加，以示強調）" } }, { "doc_id": 169, "seg_id": 32, "translation": { "en": "In respect of the identification by Miss Chong of the applicant as the assailant, the trial judge directed the jury as follows:", "zh-HK": "就莊小姐認出申請人為襲擊者一事，原審法官則向陪審團作出以下指引：" } }, { "doc_id": 169, "seg_id": 33, "translation": { "en": "“Of course, as you are in fact aware, when Miss Chong identified this defendant, as I said just now, she simply could not see how he wore his hair, what colour his hair was or how tall he was. But one fact cannot be denied: she said the person she identified from the nine persons was the defendant, and it so happened that the defendant was wearing a green outer garment and had turned up at that place. Was it sheer coincidence, or is Miss Chong a very observant person? With hair all covered, the look will be different. That is to say, generally speaking, I think if you will all think about it, that is imagine you have put on a shower cap so that the colour of your hair and your hairstyle cannot be seen, it only stands to reason that you should look different, right? So, will you think that she is quite observant, so much so that she was able to identify that person, and what’s more, that person had indeed turned up at the scene at that time, as opposed to not having been present at all. Or was it really sheer coincidence that he was wearing a green upper garment, that is, the defendant was wearing a green upper garment, and was also wearing a pair of jeans, and had turned up in the vicinity, and therefore he was, as the defence is saying, identified by mistake; by turning up at the wrong time and the wrong place, and by a strange twist of fate, he became the man when in fact he was not. These, and what in fact happened, are really matters for you to consider.”", "zh-HK": "“當然，莊小姐其實你哋又都知道，佢認呢個被告人出嚟嘅時候，我頭先都講咗，根本睇唔到佢個髮型、睇唔到髮嘅顏色，亦都睇唔到佢幾高㗎嘛。咁但係一個無可否認嘅事實，佢說佢喺呢九個人裡面，佢辨認咗係被告喇，而被告又咁啱咁蹻係當時著住綠色嘅外套，係曾經喺嗰個地方出現個喎，咁呢個係巧合吖，定係話呢一位莊小姐佢嗰個觀察力係咁強，遮晒啲頭髮，都唔同樣㗎喇，即係一般嚟講，我諗如果你哋大家諗下，即係你想像下你如果戴咗個浴帽，睇唔到啲頭髮咩嘢色、睇唔到個髮型嘅，照計個樣都應該唔同咗㗎喇，係咪呀？咁你話會唔會覺得佢話嗰個觀察力都幾強喎，居然可以係搵到個人出嚟，嗰個人又仲要係真係當時在場出現過，而唔係完全冇出現過呢，定係話真係咁啱咁蹻，佢又著住綠色衫，即係個被告，又著住綠色衫，又著住個牛仔褲，喺嗰度附近出現過，咁所以就認錯人，就好似辯方講，錯誤時間、錯誤地方出現，陰差陽錯，變咗係佢，其實就唔係佢嘅，咁呢個就你哋真真正正要考慮，究竟呢件嘅事件係點喇。”" } }, { "doc_id": 169, "seg_id": 34, "translation": { "en": "Grounds of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 169, "seg_id": 35, "translation": { "en": "Mr Andrew Ma of Counsel raised two grounds of appeal on behalf of the applicant. Mr Ma submitted that the trial judge had misdirected the jury regarding the requisite mens rea of the offence.", "zh-HK": "代表申請人的馬維騉大律師提出兩點上訴理由。馬大律師指原審法官就控罪所需的犯罪意圖錯誤引導陪審團。" } }, { "doc_id": 169, "seg_id": 36, "translation": { "en": "Mr Ma complained that, in her written directions to the jury, the trial judge applied the interpretation of “malicious” to the essential element of “intention” in “with intent to cause grievous bodily harm”, and that she erroneously introduced concepts such as “reckless” which would mislead the jury. Mr Ma emphasized that “recklessness” did not amount to the essential element of “intention” in the offence of “wounding with intent”.", "zh-HK": "馬大律師指原審法官在向陪審團的書面指引中，將“惡意”的闡釋用於“意圖使人受嚴重傷害”的要素“意圖”上，並納入“罔顧”或“魯莽”等概念，做法錯誤，亦會誤導陪審團。馬大律師強調“魯莽”不足夠構成“有意圖而傷人”罪的“意圖”一要素。" } }, { "doc_id": 169, "seg_id": 37, "translation": { "en": "Mr Ma also contended that, in directing the jury on the identification evidence given by Miss Chong, the trial judge had improperly suggested that Miss Chong was an observant person and that the likelihood of a coincidence was low, and that the trial judge had not clearly pointed out to the jury the possible weaknesses in the evidence.", "zh-HK": "馬大律師亦指原審法官就莊小姐的認人證供向陪審團作出指引時，不當地向陪審團暗示她的觀察力強，亦暗示巧合的可能性低，更沒有清晰地向陪審團指出有關證據可能潛藏的弱點。" } }, { "doc_id": 169, "seg_id": 38, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 169, "seg_id": 39, "translation": { "en": "According to section 17 of the Offences against the Person Ordinance (“section 17”), anyone who “(a) unlawfully and maliciously, by any means whatsoever, wounds or causes any grievous bodily harm to any person … with intent … to do … grievous bodily harm to any person” shall be guilty of an offence. Strictly speaking, this offence consists of four essential elements:", "zh-HK": "根據《侵害人身罪條例》第17條（“第17條”），任何人意圖使任何人受…嚴重傷害… (a) 以任何方式非法及惡意傷害任何人或導致任何人身體受嚴重傷害…即屬犯…罪行為。上述罪行嚴格來說要有四項犯罪要素：" } }, { "doc_id": 169, "seg_id": 40, "translation": { "en": "The defendant had the intent to cause injury to the victim;", "zh-HK": "被告人有意圖導致受害人受傷；" } }, { "doc_id": 169, "seg_id": 41, "translation": { "en": "The harm the victim suffered was truly grievous bodily harm;", "zh-HK": "受害人受的傷是真正嚴重的身體傷害；" } }, { "doc_id": 169, "seg_id": 42, "translation": { "en": "The grievous bodily harm the victim suffered was caused by the defendant; and", "zh-HK": "受害人身體嚴重傷害是被告人造成的；及" } }, { "doc_id": 169, "seg_id": 43, "translation": { "en": "The defendant’s act of wounding was unlawful and malicious.", "zh-HK": "被告人的傷人行為是非法及惡意作出的。" } }, { "doc_id": 169, "seg_id": 44, "translation": { "en": "The victim’s neck was cut by a sharp object. The wound was as long as 25 cm, and part of the wound went deeper than the subcutaneous layer of fat and the subcutaneous tissue, causing the victim to bleed profusely. The injuries sustained by the victim were no doubt truly grievous bodily harm, and the perpetrator no doubt had the intent to cause him grievous bodily harm.", "zh-HK": "受害人頸部遭人用利器割傷，傷口長達25厘米，部分深至過了皮下脂肪及皮下組織，令受害人大量出血，受害人所受的傷，必然是真正嚴重的身體傷害，而作出該行為的人亦必然有意圖使受害人身體受嚴重傷害。" } }, { "doc_id": 169, "seg_id": 45, "translation": { "en": "Where an offender used a sharp object to attack a victim directly in the neck, causing him to bleed heavily, the trial judge is merely required to direct the jury that they must be sure that the defendant had the intent to cause the victim grievous bodily harm when he committed the acts in question, and is not required to further elaborate on the meaning of “intent”. In Direction 13 of Part II of the Specimen Directions in Jury Trials regarding the direction applicable to mens rea, particular reference is made to the following statement made by Lord Bridge on the issue in R v Moloney [1985] 1 AC 905:", "zh-HK": "當一名犯罪者用利器直接襲擊受害人的頸部，令受害人大量出血，除了向陪審團指出他們必須肯定被告人作出案中的行為時他有意圖使受害人受嚴重傷害外，主審法官無需要再就“意圖”的意思再詳盡闡述。陪審團的《樣本指引》第II章第13節有關犯罪意圖的適用指引亦有援引Lord Bridge法官在R v Moloney [1985] 1 AC 905案，就上述議題的以下表述，特別是：" } }, { "doc_id": 169, "seg_id": 46, "translation": { "en": "“In trials of murder or wounding with intent, I find it very difficult to visualise a case where any such explanation or elaboration could be required, if the offence consisted of a direct attack on the victim with a weapon …”", "zh-HK": "“在謀殺或有意圖傷人審訊，如罪行包括用兇器直接襲擊受害人時，很難想像有需要（就意圖）再作解釋或詳盡闡述。”（非官方翻譯）" } }, { "doc_id": 169, "seg_id": 47, "translation": { "en": "Where a defendant deliberately did some acts which caused injuries to another person, and the result of such acts was that the victim suffered grievous bodily harm, the reference to “malice” should be left out from the directions to jury (see R v Mowatt [1968] 1 QB 421 at 426, and HKSAR v Ying Tung CACC 150/2003 at paras.26 and 27). This is because the definition of “malice” covers two different situations, one involving “actual intent” and the other “reckless”. However, section 17 requires proof of a specific intent to cause grievous bodily harm, and “recklessness” is not sufficient. In Mowatt, having discussed the two different scenarios that the definition of “malice” might cover, Diplock LJ pointed out (at 46 B-C) that the intent required by section 17 was more specific than such element of foresight of consequences as was implicit in the word “malice”, and therefore in directing a jury on the section 17 offence it was not necessary for the judge to refer to the word “malice”.", "zh-HK": "如被告人蓄意作出一些令受害人受傷的行為，而該 些行為的結果是令受害人身體嚴重受傷，向陪審團作出“惡意”這詞的指引是應該省略的。（見R v Mowatt [1968] 1 QB 421案第426頁和HKSAR v Ying Tung CACC 150/2003案判案書第26、27段）原因是，“惡意”的定議可含蓋兩種不同的情況，一種是“蓄意”(actual intent)；另外一種是“魯莽”(reckless)。但第17條所需的令人身體受到嚴重傷害的意圖是固定(specific intent)的，“魯莽”並不足夠。在Mowatt 一案(第46頁B-C)，Diplock LJ討論了“惡意”的定議可含蓋的兩種不同的情形後，道出第17條所需的意圖比“惡意”的定義可含蓋的預見後果固定，所以法官就第17條罪行引導陪審團時，實無需着墨“惡意”這詞。" } }, { "doc_id": 169, "seg_id": 48, "translation": { "en": "“The intent expressly required by that section [section 18 Offences against the Person Act] is more specific than such element of foresight of consequences as is implicit in the word ‘maliciously’ and in directing a jury about an offence under this section the word ‘maliciously’ is best ignored.”", "zh-HK": "“該條例[英國侵害人身罪條例第18條，即第17條]明文所需的意圖，比‘惡意’一字所含蓋的預見後果的因素固定，向陪審團引導有關該條例的罪行時，最好不要理會‘惡意’這詞。”(非官方譯本)" } }, { "doc_id": 169, "seg_id": 49, "translation": { "en": "In R v Belfon [1976] 3 All ER 46, the English Court of Appeal applied Mowatt and clearly expressed the following principle (at 49h):", "zh-HK": "在R v Belfon [1976] 3 All ER 46一案，英國上訴法庭應用Mowatt案例後，更清楚道出以下原則(第49頁h)：" } }, { "doc_id": 169, "seg_id": 50, "translation": { "en": "“In cases of wounding with intent it had never been considered that recklessness was to be equated with the particular intention that is required in order to constitute an offence described in s.18.”", "zh-HK": "“在有意圖傷人的案件，從來都沒有視魯莽與構成第18條[即第17條]罪行所需的特定意圖相等這想法。”" } }, { "doc_id": 169, "seg_id": 51, "translation": { "en": "The Court of Appeal also made it clear (at 51j) that “foresight” was not the same as “intention”:", "zh-HK": "在同一案中，上訴法庭亦說明“預見”(foresight)不等同“意圖”(第51頁j)：" } }, { "doc_id": 169, "seg_id": 52, "translation": { "en": "“Lord Hailsham of St Marylebone clearly distinguished ‘foresight’ from ‘intention’. He said:", "zh-HK": "“Lord Hailsham of St Marylebone 清楚區分‘預見’和‘意圖’。他說：" } }, { "doc_id": 169, "seg_id": 53, "translation": { "en": "‘For the reasons I have given, I do not think that foresight as such of a high degree of probability is at all the same thing as intention …’ ”", "zh-HK": "‘基於上述理由，本席不認為高度可能性的預見等同意圖。’” (非官方譯本)" } }, { "doc_id": 169, "seg_id": 54, "translation": { "en": "Therefore, in ordinary circumstances, no mention should be made of concepts such as “malice”, “foresight” or “recklessness” when a judge directs a jury on the section 17 offence. The judge should direct the jury that they must be sure that the defendant had the intent to cause grievous bodily harm before they can convict the defendant (Archbold Hong Kong 2014, p.1310, para.20-206, Blackstone’s Criminal Practice 2014, p.261, para.B2.73). In some cases, the issue may arise as to whether the defendant foresaw grievous bodily harm. In such cases, the judge should tell the jury that they must be sure that “serious bodily harm was a virtual certainty (barring some unforeseen intervention) … and the defendant appreciated that such was the case” (R v Woollin [1999] 1 Cr App R 8). But in a usual section 17 case involving a direct attack with weapon, such as the present case, references to concepts such as “malice” or “foresight” would only confuse the jury, and the concept of “recklessness” is inconsistent with the specific intent required under section 17.", "zh-HK": "因此，在一般情形，法官引導陪審團考慮第17條罪行時，都不應該提及“惡意”或“預見”或“魯莽”這些概念。法官應該對陪審團說他們必須肯定被告人有意圖令受害人身體嚴重傷害，才可裁定被告人有罪。(Archbold Hong Kong 2014, 第1310頁, 20-206段, Blackstone’s Criminal Practice 2014, 第261頁, B2.73段)。在某些案件中，是會有可能出現被告人是否預見到嚴重傷害這議題，在這些情況時，法官應該引導陪審團他們要肯定嚴重傷害的可能性是幾乎必然的(除非有不可預見的干預)，而被告人是領略到該可能性的(serious bodily harm was a virtual certainty (barring some unforeseen intervention) … and the defendant appreciated that such was the case) (R v Woollin [1999] 1 Cr App R 8)。但在一般涉及以武器直接襲擊他人的第17條罪行（例如本案），提及“惡意”或“預見”這些概念只會令到陪審團混淆，而“魯莽”這概念更與第17條所需的固定意圖不符。" } }, { "doc_id": 169, "seg_id": 55, "translation": { "en": "In our view, the statement in para.16.3B(a) of the Specimen Directions that “‘Malicious’ in this Ordinance means either intentionally or recklessly” has not made it clear that “recklessly” is in general applicable only to section 19 cases, and neither para.16.3B(b) nor the Specimen Directions on section 17 should refer to the concept of “foresight”.", "zh-HK": "本庭認為“樣本指引”16.3B(a)段所說“ ‘Malicious’ in this Ordinance means either intentionally or recklessly” （“在這條例中，惡意的意思是有意圖或魯莽”）並未有清晰說出“recklessly”（魯莽）一般只可應用於第19條的案件，而16.3B(b)段及第17條的“樣本指引”亦不應提及“預見”這概念。" } }, { "doc_id": 169, "seg_id": 56, "translation": { "en": "We believe that the trial judge was misled by the Specimen Directions into referring not only to the concepts of “malice” and “foresight” but also to the concept of “recklessness” (see the underlined passage quoted in paragraph 18 hereinabove). Her approach is, with respect, incorrect. However, the assailant in the present case cut the victim in the neck directly with a sharp object, causing a laceration wound that measured as long as 25 cm and ran as deep as the subcutaneous tissue in the Platysma muscle. On such evidence, which was not in dispute, we believe that any reasonable jury would conclude that the “intent” required under section 17 had been sufficiently proved.", "zh-HK": "本庭相信原審法官是被“樣本指引”誤導，引致她不但提及“惡意”及“預見”的概念，更甚至提及“罔顧”的概念（看本文第18段劃線一段）。原審法官的處理方法是不正確的。但本案中襲擊者是以利器直接割傷受害人的頸部，令他蒙受長達25厘米及深至皮下組織下頸濶肌的裂傷。根據該些無爭議證據，本庭相信任何合理的陪審團都會認為第17條所需的“意圖”已獲足夠證明。" } }, { "doc_id": 169, "seg_id": 57, "translation": { "en": "We reiterate that in the majority of similar cases where someone cut the victim intentionally with a sharp object, the trial judge is only required to point out that one of the essential elements of the charge is that when the defendant committed the acts in question he had the intent to cause grievous bodily harm, and it is not necessary for the judge to elaborate further on the word “intent”. As a matter of fact, this was not at issue in the present case.", "zh-HK": "本庭重申在大部分同類案件，當受害人遭人故意用利器割傷時，主審法官只需指出控罪要素之一是被告人作出犯罪行為時是有意圖導致受害人受嚴重傷害，而無必要再就“意圖”一詞再作詳盡闡述，而事實上，該議題在本案是沒有爭議的。" } }, { "doc_id": 169, "seg_id": 58, "translation": { "en": "In the circumstances of the present case, it can hardly be disputed that someone had intentionally, unlawfully and maliciously harmed the victim causing him grievous bodily harm. The only issue was whether or not the applicant was the assailant. As the trial judge pointed out to the jury, “… the defence has never disputed that (Mr Wu) suffered grievous injuries, that it was unlawful to cause him injuries, and that the person who caused him injuries did so intentionally. None of these are in dispute. The only issue is whether or not that person was the defendant.”", "zh-HK": "以本案的案情而言，受害人遭人有意圖、非法及惡意傷害，令他身體受嚴重傷害根本是無可爭拗的事實，而案件唯一爭議點只是申請人是否就是襲擊受害人的兇徒。誠如原審法官向陪審團指出，“… 辯方根本唔爭議（胡生）係受咗嚴重傷害，去傷害嗰個人係非法嘅，去傷害嗰個人係有意圖咁做，呢啲根本完全唔爭議，唯一爭議喇，就嗰個係咪個被告。”" } }, { "doc_id": 169, "seg_id": 59, "translation": { "en": "In the present case, although there might have been inaccuracy and ambiguity in the trial judge’s directions to the jury regarding “intent” and/or “malice”, such inaccuracy and ambiguity in no way rendered the conviction unsafe or unsatisfactory and therefore do not constitute a ground for overturning the conviction.", "zh-HK": "在本案，原審法官就“意圖”及/或“惡意”向陪審團作出的指引可能有不準確和含糊之處，但該些不準確和含糊之處絕不會令有關定罪不穩妥或不安全，故不構成推翻定罪的理由。" } }, { "doc_id": 169, "seg_id": 60, "translation": { "en": "As regards the other ground of appeal, the trial judge had not suggested that Miss Chong was strongly observant or that the likelihood of coincidence was low. In the relevant parts of her directions, the trial judge went no further than setting out the relevant evidence and the parties’ respective cases and directing the jury on the factors they should consider before making findings of facts.", "zh-HK": "至於另外的上訴理由，原審法官並沒有暗示莊小姐的觀察力強，亦沒有暗示巧合的可能性低。原審法官在有關引導部分只是向陪審團列出有關證據及雙方的說法，並指示他們應考慮的因素而作出事實的裁斷。" } }, { "doc_id": 169, "seg_id": 61, "translation": { "en": "In fact, regarding the evidence on the identification of the applicant by Miss Chong, the trial judge directed the jury as follows:", "zh-HK": "事實上，原審法官就莊小姐認出申請人的證供，向陪審團作出以下指示：" } }, { "doc_id": 169, "seg_id": 62, "translation": { "en": "“The defence case is she has wrongly identified him. In other words, it is at least possible that the defendant has been wrongly identified, that [the assailant] was not the defendant. To prevent such unfair instances that had happened before, cases where people had been mistakenly identified – such incidences had happened before, that is during a trial, so in the present case I must remind you to consider very carefully before you rely on the evidence of identification by a witness, because witnesses may firmly believe that they are not mistaken or are very sure that they are not mistaken, but it does not necessarily mean they are in fact not mistaken, because you may all have had the experience of mistaking a person for another. At first glance, you may think someone you see in the street is a friend of yours, but on coming closer, you realize he/she is not. Such cases happen. Therefore, you must consider very carefully whether you can accept the identification evidence given by Miss Chong in this respect.”", "zh-HK": "“辯方就話佢認錯人，即係起碼有可能認錯人喇，嗰個唔係被告嚟嘅咁。因為為咗防止好似喺以前曾經試過有啲咁嘅情況就係唔公平嘅，認錯人嘅，試過有啲咁嘅情況，即係喺審訊嘅時候，咁所以喺呢件案件我一定要提醒你哋，你哋去倚賴一個證人作出辨認呢一方面嘅證供之前，一定要好小心考慮，因為啲證人可能佢自己深信佢係冇搞錯，佢好肯定佢自己冇搞錯，但係唔等於其實事實上佢係有冇搞錯，因為大家可能都有啲經驗就係認錯人㗎，喺街度行，咁嗰個以為佢自己嘅朋友，點知行埋去原來唔係嘅，都有咁嘅情況發生，所以你哋一定要好小心去考慮，你哋能唔能夠接納莊小姐就呢一方面認人嗰個嘅證供。”" } }, { "doc_id": 169, "seg_id": 63, "translation": { "en": "We also reject Mr Ma’s argument, which we consider incorrect, that the trial judge had not pointed out clearly to the jury the possible weaknesses in the relevant evidence. On the basis of the prosecution evidence, and in particular when the applicant neither testified nor called any witness to explain, rebut or undermine the prosecution evidence, the jury was fully entitled to find that the applicant was the person who attacked the victim.", "zh-HK": "馬大律師指原審法官沒有清晰向陪審團指出有關證據可能潛藏的弱點亦不正確，本庭不接納。根據控方的證據，特別是在申請人沒有作供，亦沒有傳召證人去解釋、反駁或削弱控方證據時，陪審團絕對有權裁定申請人就是襲擊受害人的兇徒。" } }, { "doc_id": 169, "seg_id": 64, "translation": { "en": "Given the circumstances of the case and the issue in dispute between the parties, once the applicant was found to be the person who attacked the victim, any reasonable tribunal would inevitably have found the applicant guilty of wounding with intent. Although the Mr Ma’s arguments are to a certain extent justified, the verdict of guilty against the applicant does not involve any miscarriage of justice. We do not consider the applicant’s conviction for the offence of “wounding with intent” unsafe or unsatisfactory. We have therefore granted leave to the applicant to appeal his conviction but dismissed the appeal.", "zh-HK": "以本案的事實及雙方的爭議而言，只要申請人是襲擊受害人的行兇者，任何合理的審裁機構都必會裁定申請人犯了“有意圖而傷人”罪。雖然馬大律師提出的論點有一定程度的根據，但裁定申請人有罪的決定並無任何司法不公。對申請人被裁定“有意圖而傷人”罪罪名成立，本庭不覺有任何不穩妥之處。本庭批准申請人就定罪提出上訴，但駁回他的上訴，維持原判。" } }, { "doc_id": 169, "seg_id": 65, "translation": { "en": "Sentence", "zh-HK": "判刑" } }, { "doc_id": 169, "seg_id": 66, "translation": { "en": "The present case presents difficulties in terms of sentencing. The applicant bore no grudge whatsoever against the victim but cut his neck with a sharp object for no reason. As the trial judge pointed out, had the applicant cut through the artery or other vital bodily parts of the victim, the victim would very likely have lost his life.", "zh-HK": "本案的判刑決定不容易作出。申請人和受害人無怨無仇，但卻無故用利器割受害人的頸部。誠如原審法官指出，如申請人割斷受害人的大動脈或其他重要部分，受害人極可能性命不保。" } }, { "doc_id": 169, "seg_id": 67, "translation": { "en": "The motive of the applicant in committing the offence is unknown. He had been abusing drugs for as long as 20 years, causing him memory impairment, self-muttering, unexplained tremors, and visual and auditory hallucinations. The psychiatrist opined that the applicant suffered from drug-induced psychotic disorder and depression and had to be put on medication. However, the applicant refused and failed to attend follow-up consultations.", "zh-HK": "申請人犯罪動機不明，但他濫用藥物長達20年，令他記憶力衰退、會自言自語、身體無故震顫、視覺及聽覺都會有幻象。精神科醫生認為申請人患有藥物引起的精神病性障礙及抑鬱，需要服藥，但申請人拒絕亦沒有繼續覆診跟進其病況。" } }, { "doc_id": 169, "seg_id": 68, "translation": { "en": "The psychologist was of the opinion that the applicant was prone to violence and had a propensity to anger. Apart from having previous convictions for drug trafficking and possession of dangerous drug, the applicant had been sentenced to imprisonment for possession of offensive weapon in a public place and wounding.", "zh-HK": "心理醫生則確認申請人有暴力傾向，容易發怒。除了有“販毒”和管有毒品罪行外，申請人亦曾因在公眾地方藏有攻擊性武器及傷人而遭判監。" } }, { "doc_id": 169, "seg_id": 69, "translation": { "en": "We do not intend to surmise the reason why the applicant committed this offence, although his violent behaviour might have been caused by his mental or psychological state. The offence he committed is very serious, posing a threat to innocent members of the public, and must be dealt with severely.", "zh-HK": "本庭不打算猜測申請人犯案的原因，但他的暴力行為可能是由他的精神心理狀況所導致。申請人的罪行非常嚴重，對無辜市民造成威脅，必需嚴肅處理。" } }, { "doc_id": 169, "seg_id": 70, "translation": { "en": "In sentencing, the trial judge indicated that the starting point for offences involving attacks out of retaliation or provocation was imprisonment for 3 to 12 years, and it went without saying that the length of imprisonment depended on the facts specific to the case.", "zh-HK": "原審法官判刑時表示一些出於報復或挑釁而去襲擊他人的罪行，判刑基準是3至12年，判刑長短當然要根據案件的具體事實而定。" } }, { "doc_id": 169, "seg_id": 71, "translation": { "en": "The trial judge also referred to two cases involving attacks for no apparent reason: Secretary for Justice v Lam Kai Wah [2000] 2 HKLRD 246 and HKSAR v Wan Pak Sing aka Cheung Ka Ping (CACC 535/2003).", "zh-HK": "原審法官亦援引了兩宗無故傷人的案件，即Secretary for Justice v Lam Kai Wah [2000] 2 HKLRD 246及HKSAR v Wan Pak Sing aka Cheung Ka Ping（尹北勝又名張家平）（CACC535/2003）案。" } }, { "doc_id": 169, "seg_id": 72, "translation": { "en": "In Wan Pak Sing, the defendant was a mental patient who, for no reason at all, attacked a complete stranger in the street, first with an umbrella and then with a chopper, causing serious injuries to his head and left hand. In the end, the judge ordered that he be admitted to a psychiatric centre for an unspecified time.", "zh-HK": "尹北勝案的被告人是一名精神病患者，他無故在街上先用雨傘再用菜刀襲擊一名陌生過路行人，令他頭部及左手受重傷。被告人結果被判入精神病院無限期接受治療。" } }, { "doc_id": 169, "seg_id": 73, "translation": { "en": "In Lam Ka Wah, the defendant was not a mental patient but had a low I.Q.. As a result of anxiety, he got bogged down in worried ruminations in addition to not being able to control his own emotions. While waiting for a train in an MTR station and for no reason at all, he pushed a woman onto a railway track as the train was approaching. Fortunately, the victim remained calm and hid herself in the space between the tracks and therefore managed to save her own life. She nevertheless had her left hand crushed by the train, as a result of which she suffered permanent disability.", "zh-HK": "Lam Kai Wah案的被告人智商低，但並非精神病患者。他因為焦慮、陷於憂慮沉思，再加上情緒失控，而在地鐵站候車期間及列車即將駛至時，無故將一名女士推落路軌。幸好受害人鎮靜，躺在路軌中間，才幸免於難，但她的左手仍遭列車壓碎，導致她永久傷殘。" } }, { "doc_id": 169, "seg_id": 74, "translation": { "en": "The Court of Appeal considered that the appropriate starting point was 15 years’ imprisonment. A severe sentence was imposed as the court had the duty to protect the safety of members of the public.", "zh-HK": "上訴法庭認為適當的量刑基準是15年監禁，重判原因是法庭有責任保障社會人士的安全。" } }, { "doc_id": 169, "seg_id": 75, "translation": { "en": "The trial judge took the view that the offence in the present case was more serious than that in Lam Kai Wah because the applicant had a sharp weapon with him at the time of the offence. Therefore, the trial judge considered it necessary to adopt a higher starting point than that in Lam Kai Wah. A starting point of 17 years was adopted.", "zh-HK": "原審法官認為申請人的罪行較Lam Kai Wah案被告人的罪行更為嚴重，原因是申請人犯案時身懷鋒利兇器。因此，原審法官認為需要較Lam Kai Wah案更高的量刑基準，即17年監禁。" } }, { "doc_id": 169, "seg_id": 76, "translation": { "en": "It is highly likely that the applicant in the present case and the defendant in Lam Kai Wah committed the offence for a similar reason. Nevertheless, we have reservations about the position taken by the trial judge that the offence in the present case was even more serious than that in Lam Kai Wah.", "zh-HK": "申請人犯案的原因極可能和Lam Kai Wah案被告人的犯案原因類似，但對原審法官認為申請人的罪行較Lam Kai Wah案被告人的罪行更嚴重的立場，本庭有保留。" } }, { "doc_id": 169, "seg_id": 77, "translation": { "en": "It is true that in Lam Kai Wah, the defendant did not carry any weapon or use any weapon in the attack. However, his act of pushing a passenger waiting for a train onto the track when the train was approaching was tantamount to attempted murder. In the normal course of events, even if a person being pushed onto the track when a train is approaching is not killed, he or she is bound to sustain serious injuries.", "zh-HK": "雖然Lam Kai Wah案的被告人沒有攜帶兇器或利用兇器傷人，但他在列車即將到站時推一名候車人士落路軌的行為，等同意圖謀殺。一般情況下在列車即將駛至時，遭人推落路軌的人即使不死，亦會受重傷。" } }, { "doc_id": 169, "seg_id": 78, "translation": { "en": "We are of the view that the offence committed by the applicant, namely wounding someone with a sharp object, is not more serious than that committed by the defendant in Lam Kai Wah, namely pushing someone onto a railway track when the train was approaching. Nor can we overlook the fact that although the victim in Lam Kai Wah was lucky enough to have survived the attack, she was left permanently disabled.", "zh-HK": "本庭認為申請人用利器傷人的罪行，並不比Lam Kai Wah案被告人在列車將至時推人落路軌的罪行較嚴重。本庭亦不能忽視，Lam Kai Wah案的受害人雖然幸免於難，但仍受永久傷殘。" } }, { "doc_id": 169, "seg_id": 79, "translation": { "en": "The victim in the present case is left with a 25-cm long scar and suffers numbness in the right shoulder, but he is not left with other permanent disabilities. The consequences brought about by the offence are not as serious as those in Lam Kai Wah.", "zh-HK": "本案受害人頸部留有25厘米長的疤痕、右邊肩膊有麻痺，但沒有其他永久傷殘。申請人罪行導致的後果較Lam Kai Wah案的後果為輕。" } }, { "doc_id": 169, "seg_id": 80, "translation": { "en": "In another similar case Secretary for Justice v Liu Chi Yung [2007] 4 HKLRD 182, the defendant, who was stopped by a police officer in the street for examination, suddenly produced a knife which he intended to use in a robbery and stabbed the police officer in the neck, causing serious injuries to the police officer and leaving him in a vegetative state. The Court of Appeal considered that the appropriate starting point was 15 years’ imprisonment. Although the defendant in that case was able to rely on a lot more mitigating factors (a clear record, remorse, voluntary surrender and a guilty plea) than the applicant is, we cannot overlook the fact that the victim in Liu Chi Yung suffered far more serious injuries than the victim in the present case did. In our view, the appropriate starting point in the present case should not be higher than those adopted in the above cases of Lam Kai Wah and Liu Chi Yung.", "zh-HK": "在另一宗同類案件（Secretary for Justice v Liu Chi Yung [2007] 4 HKLRD 182）的被告人當遭警員在街上截查時，突然從身上取出打算作搶劫用的刀刺向警員的頸部，令警員身受重傷，變成植物人。上訴法庭認為適當的量刑基準為15年監禁。雖然該案的被告人沒有案底，加上他有悔意，自動投案及認罪，求情理由遠較申請人為多，但本庭不能忽視Liu Chi Yung案的受害人蒙受的傷勢遠較本案受害人的傷勢為重。本庭認為適用於申請人的量刑基準不應較上述Lam Kai Wah和Liu Chi Yung案所採納的量刑基準為高。" } }, { "doc_id": 169, "seg_id": 81, "translation": { "en": "In light of the offence in question, the way in which the applicant committed the offence and the consequences brought about by the offence, we are of the view that a sentence of 15 years’ imprisonment sufficiently reflects the gravity of the offence. Therefore, we have granted leave to the applicant to appeal the sentence and, treating the application as the appeal proper, we have allowed the appeal against sentence and reduced the applicant’s term of imprisonment from 17 years to 15 years.", "zh-HK": "本庭認為以本案的控罪、申請人的犯案手法及其罪行導致的後果，15年監禁已足以反映其罪行的嚴重性。因此本庭批准申請人就判刑提出上訴，並視其申請為正式上訴。本庭判申請人就判刑的上訴得直，並將其刑期由17年減至15年。" } }, { "doc_id": 169, "seg_id": 82, "translation": { "en": "Mr Martin Hui, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent", "zh-HK": "答辯人：由律政司高級助理刑事檢控專員許紹鼎代表。" } }, { "doc_id": 169, "seg_id": 83, "translation": { "en": "Mr David Ma and Ms Fiona Nam, assigned by the Bar Free Legal Service Scheme, for the Applicant", "zh-HK": "申請人：由香港大律師公會（法律義助服務計劃）委派大律師馬維騉及大律師藍凱欣代表。" } }, { "doc_id": 170, "seg_id": 1, "translation": { "en": "Hon Nguyen J (giving the judgment of the Court):", "zh-HK": "由高等法院原訟法庭法官阮雲道宣讀上訴法庭判案書" } }, { "doc_id": 170, "seg_id": 2, "translation": { "en": "On 21 November 2000, Jim Lung Keung, the applicant for leave to appeal (i.e. the defendant), pleaded guilty in the Court of First Instance to two charges of trafficking in dangerous drugs. Deputy Judge Toh sentenced him to 7 years and 8 months’ imprisonment. The applicant now applies for a reduction of the sentence on the ground that it is excessive.", "zh-HK": "上訴許可申請人(即被告人)詹龍強於2000年11月21日在高等法院原訟法庭承認兩項販運危險藥物罪，原訟法庭杜麗冰暫委法官判申請人入獄7年8個月。申請人認為刑期過重，申請減刑。" } }, { "doc_id": 170, "seg_id": 3, "translation": { "en": "The trial judge adopted a sentencing approach of taking two starting points. She treated the two offences separately and adopted a starting point for each of the two offences based on the amount of heroin involved in that offence. For the first count, she took 3 years as the starting point and reduced the term to two years by reason of the applicant’s guilty plea. As for the second count, the judge took 8½ years as the starting point and then reduced the term to 5 years and 8 months. The sentences for the two counts were to run consecutively, making a total of 7 years and 8 months.", "zh-HK": "原審法官在作出量刑時採取兩個量刑起點的處理方式，就是她將兩項控罪分開計算，即按兩項控罪的海洛英份量分別决定各自的量刑起點，於第一項罪名，她採立了3年為判刑起點，因為申請人認罪，所以減為兩年，而第二項罪名，法官就採立了8年半為量刑起點，減為5年8個月，兩項控罪的刑期分期執行，整體刑期為7年8‍個月。" } }, { "doc_id": 170, "seg_id": 4, "translation": { "en": "The facts admitted by the applicant were as follows. On 22 June 2000, a team of plain-clothed Customs and Excise officers carried out an anti-drugs patrol in Mongkok area. At about 7:30 p.m. on the same day, they saw the applicant near lamppost AA 56590 in Shantung Street. The officers found the applicant suspicious and stopped him for a search. A packet of drugs, namely the drugs involved in the first count, was found on him. The officers asked the applicant what was in the packet, and the applicant replied that it was “white powder”. Then one of the officers asked the applicant where he lived, and he told them his address. The officers went on to ask the applicant whether there were other dangerous drugs in his home, and the applicant answered, “Yes, there is another three ounces and a half in my home.” The officers then took the applicant to the address he disclosed for investigation. A search was conducted at the said premises, whereupon the dangerous drugs involved in the second count were found.", "zh-HK": "申請人承認事實如下，就是2000‍年6月22日，有一隊便衣的海關人員在旺角區進行掃毒巡邏，同日晚上大約7時半在山東街AA56590燈柱附近看見申請人，由於申請人形跡可疑，所以海關人員截停申請人，向他進行搜查，在其身上找到一包即是第一項罪名的毒品，當時問申請人那包東西是什麼，申請人回答是白粉，接着，其中一位海關人員問申請人在那裏住，申請人便說出其地址，海關人員繼續問申請人的家中是否還藏有危險藥物，申請人回答「有，屋企重有三安半。」海關人員於是帶申請人返回其報稱的住址進行調查。於搜查有關單位時發覺第二項罪名的危險藥品。" } }, { "doc_id": 170, "seg_id": 5, "translation": { "en": "In HKSAR v Chow Yu Chi CACC 359/2000, the Court of Appeal made the following observations:", "zh-HK": "在香港特別行政區訴周汝志(Chow Yu Chi譯音)CACC359/2000一案中，上訴法庭有以下的看法：" } }, { "doc_id": 170, "seg_id": 6, "translation": { "en": "… the judge adopted the somewhat laborious route of taking, for each offence, a separate starting point for each offence before making adjustments for totality. In circumstances such as these, where both offences were committed on the same day on closely linked facts, it would have been proper for the judge to have calculated the overall starting point by combining the weights of heroin in each charge to arrive at a total weight …", "zh-HK": "「…法官用了略為吃力的計算方法，即計算每一罪行各自的量刑起點後才就整體刑期作出調整。在本案的情況下，由於兩項罪行同日發生，案情有緊密關係，因此，法官應將兩項控罪所指的海洛英的重量相加，得出總重量後即決定整體量刑起點…" } }, { "doc_id": 170, "seg_id": 7, "translation": { "en": "The approach taken by the judge in arriving at the two starting points reveals an error of principle. …", "zh-HK": "法官採取兩個量刑起點的處理方式，屬原則上的錯誤。…」" } }, { "doc_id": 170, "seg_id": 8, "translation": { "en": "5.In the present case, Mr. Tam for the respondent has conceded that the trial judge had made an error of principle in sentencing. The judge should have applied the above sentencing principle and arrived at an overall starting point on the basis of the combined weight of the dangerous drugs in the two charges, namely 87.37 grammes of heroin hydrochloride. Following the sentencing guideline set out in Lau Tak Ming [1990] 2 HKLR 370, the overall sentence for the present offences should be 9 years. This should then be reduced to 6 years on account of the applicant’s guilty plea.", "zh-HK": "5.在這件上訴案件中，譚律師代表答辯人承認原審法官在判刑原則上有犯錯，法官就應該引用上述判刑原則按兩項控罪的危險藥物的合計重量，即87.37克海洛英鹽酸鹽，得出總量刑起點而按照劉‍德‍明[1990] 2HKLR 370一案的判刑指引，總刑期應是9年，因為申請人認罪，扣減為6年。" } }, { "doc_id": 170, "seg_id": 9, "translation": { "en": "6.Accordingly, we grant leave to appeal and, treating the hearing as the appeal, we allow the appeal and reduce the sentence from 7 years and 8 months to 6 years. In other words, the applicant’s sentence is reduced by one year and 8 months. To this extent, the appeal is allowed.", "zh-HK": "6.故此本庭接納申請，將申請當作上訴聆訊，接納上訴，將7年8個月，減為6年，即申請人的刑期獲減1年8個月。上訴人上訴得直，僅此於此。" } }, { "doc_id": 170, "seg_id": 10, "translation": { "en": "Mr. Y H Tam, Senior Government Counsel, for the HKSAR.", "zh-HK": "控方：由律政司委派譚耀豪高級政府律師代表香港特別行政區政府" } }, { "doc_id": 170, "seg_id": 11, "translation": { "en": "Mr. Steve Chui, instructed by the Legal Aid Department, for the defendant.", "zh-HK": "辯方：由法律援助署委派徐福亮大律師代表被告人" } }, { "doc_id": 171, "seg_id": 1, "translation": { "en": "Hon Woo, J.A. (giving the judgment of the Court):", "zh-HK": "由高等法院上訴法庭法官胡國興宣讀上訴法庭判案書:" } }, { "doc_id": 171, "seg_id": 2, "translation": { "en": "The applicant was the 1st accused in the original trial. He and the 2nd accused Ms. HO Chui-yu were convicted on 30 November 2000 in the District Court by H.H. Judge Wong of the following charges:", "zh-HK": "申請人是原審時的第1被告人。他與第2被告人何翠如女士於2000年11月30日被區域法院黃永輝法官裁定以下數項控罪罪名成立：" } }, { "doc_id": 171, "seg_id": 3, "translation": { "en": "The 1st charge was against the applicant for burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210, namely, on 24 May 2000 having entered as a trespasser the 2nd Floor of No. 4 Seymour Terrace, Central, he stole therein one video camera and one clock.", "zh-HK": "第(1)項控罪，是申請人入屋犯法罪，違反香港法例第210章《盜竊罪條例》第11(1)(b)(4)條，即他於2000年5月24日作為侵入者進入中環西摩台4號2樓後，在該處偷竊一部攝錄機及一個時鐘。" } }, { "doc_id": 171, "seg_id": 4, "translation": { "en": "The 2nd charge was against the applicant for attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200, namely, on 24 May 2000, he attempted to enter as a trespasser the 1st Floor of No. 4 Seymour Terrace, Central, with intent to steal therein.", "zh-HK": "第(2)項控罪，是申請人企圖入屋犯法罪，違反香港法例第210章第11(1)(a)及(4)條和第200章《刑事罪行條例》第159G條，即他於2000年5月24日，企圖作為侵入者進入中環西摩台4號 1樓，意圖在該處偷竊。" } }, { "doc_id": 171, "seg_id": 5, "translation": { "en": "The 3rd charge was against the applicant and the 2nd accused for attempted burglary, contrary to the same provisions as referred to in the above 2nd charge, namely, on 28 May 2000, the two of them attempted to enter as trespassers the 2nd Floor of No. 20 Castle Road, Central, with intent to steal therein.", "zh-HK": "第(3)項控罪，是申請人及第2被告人企圖入屋犯法罪，同樣違反上述第(2)項控罪所指的條文，即他們兩人於2000年5月28日，企圖作為侵入者進入中環 衞城道2樓，意圖在該處偷竊。" } }, { "doc_id": 171, "seg_id": 6, "translation": { "en": "On the applicant’s three charges, Judge Wong sentenced him to a total of four years’ imprisonment. On the 2nd accused’s charge, Judge Wong sentenced her to two years’ imprisonment.", "zh-HK": "就申請人的3 項罪行，黃法官判處他入獄共4年；就第2被告人的罪行，黃法官判處她入獄兩年。" } }, { "doc_id": 171, "seg_id": 7, "translation": { "en": "On 11 December 2000, the 2nd accused had applied to this Court for leave to appeal against both conviction and sentence, but earlier on she already informed the Court that she would abandon all the applications.", "zh-HK": "2000年12月11日，第2被告人向本庭提出申請針對定罪及刑罰兩者的上訴許可，但她較早前已通知法庭放棄全部申請。" } }, { "doc_id": 171, "seg_id": 8, "translation": { "en": "On 14 December 2000 the applicant applied for leave to appeal against conviction. He submitted a total of nine grounds of appeal which alleged in broad terms that the Judge should not have rejected his evidence and accepted the prosecution witnesses’ evidence. He also argued that the prosecution had not given any fingerprint evidence against him to support the charges.", "zh-HK": "2000年12月14日，申請人提出針對定罪的上訴許可的申請。他所提出的上訴理由共有9項，內容泛指法官不應拒絕接納他的證供而接納控方證人的的證供。他亦辯稱控方沒有提出有關他指紋的證據支持控罪。" } }, { "doc_id": 171, "seg_id": 9, "translation": { "en": "The applicant’s above applications were made within the statutory time limit for appeal. Moreover, on 31 May 2001, the applicant applied to this Court for leave to appeal against sentence. These applications were made out of time. To explain why the applications were made out of time, the applicant filed an affirmation in which he stated that he had to seek legal advice, and therefore, there was a delay in making the applications for reduction in sentence. The applicant’s two applications were both made as per Form No. XI provided in the Criminal Procedure Ordinance, Cap. 221.", "zh-HK": "申請人上述的申請，是在法定上訴期限之內作出的。另外，申請人於2001年5月31日向本庭作出針對刑罰的上訴許可的申請。這項是逾期申請，申請人以誓章提供逾期理由，他需要徵求法律意見，故延遲作出有關減刑的申請。申請人的兩次申請都是以第221章《刑事訴訟程序條例》中的第XI號表格作出。" } }, { "doc_id": 171, "seg_id": 10, "translation": { "en": "The applicant was assigned Counsel Mr. Wong Po Wing by the Legal Aid Department to represent him in making the applications for leave to appeal against conviction in respect of the 1st and 2nd charges, whereas he handled the other applications himself.", "zh-HK": "申請人獲法律援助署委派王寶榮大律師代表他就第(1)及(2)項判罪作出上訴許可的申請，而他自己則處理其他各項申請。" } }, { "doc_id": 171, "seg_id": 11, "translation": { "en": "The Reminder", "zh-HK": "提點" } }, { "doc_id": 171, "seg_id": 12, "translation": { "en": "On 18 October 2000, before hearing this case, this Court reminded the applicant and his counsel Mr. Wong Po Wing as follows: If after hearing this case this Court was of the view that the applicant’s appeal was entirely without substance and unjustified, this Court might make a loss of time order, namely, an order that the applicant’s time spent in custody pending the determination of these applications be taken away from the counting of the service of the term of his imprisonment. This Court’s reminder was in effect a reiteration of the content of Note 3 of the two applications as per Form No. XI submitted by the applicant. The Chinese statement is as follows:", "zh-HK": "2000年10月18日，本庭在未開始聆訊本案前，向申請人及代表他的王寶榮大律師作出提點：如果本庭在聆訊本案後認為上訴全無理據支持，本庭可命令“扣時”，即命令申請人在本申請未裁決前在扣押中的時間，不計算為他所要服的刑期的一部分。本庭的提點其實申請人所用的兩份第XI號表格註釋3有中英雙語的陳述，如下:" } }, { "doc_id": 171, "seg_id": 13, "translation": { "en": "(“The Court of Appeal has power under section 83W of the Criminal Procedure Ordinance to direct that the time during which you are in custody pending the determination of your appeal shall not be reckoned as part of the term of any sentence to which you are for the time being subject.”)", "zh-HK": "“根據《刑事訴訟程序條例》第83W條，上訴法庭有權指示，你在聽候上訴的裁定時在扣押中的時間，不得作為你當其時所受刑罰的部分刑期計算。”" } }, { "doc_id": 171, "seg_id": 14, "translation": { "en": "Moreover, the content of Note 1 makes it clear that this Court has power under section 83I of that Ordinance either to increase or reduce the sentence.", "zh-HK": "另外，註釋1的內容是說明本庭有權按該條例第83I條加刑或減刑。" } }, { "doc_id": 171, "seg_id": 15, "translation": { "en": "This Court gave time to the applicant and Mr. Wong to consider the matter. Subsequently, Mr. Wong informed this Court that the applicant had in fact decided to abandon the application to appeal against the conviction on the 3rd charge prior to appearing before this Court. After hearing the reminder of this Court he was also willing to abandon the application to appeal against the sentence. However, he insisted that Mr. Wong should continue to proceed with the applications to appeal against the convictions on the 1st and 2nd charges. But he hoped that even if this Court did not allow those applications, we would not order a loss of time.", "zh-HK": "經本庭給時間予申請人及王大律師考慮後，王大律師告知本庭，申請人在出庭前實已放棄針對第(3)項定罪的申請，當聽到本庭的提點後，亦願意放棄針對刑罰的申請。然而，他堅持王大律師繼續替他進行針對第(1)及第(2)項定罪的申請，但希望本庭不接納該申請時，不會命令扣時。" } }, { "doc_id": 171, "seg_id": 16, "translation": { "en": "The Facts", "zh-HK": "案情" } }, { "doc_id": 171, "seg_id": 17, "translation": { "en": "The facts of this case were simple. According to the prosecution’s evidence, Sergeant 17626 and other members of his team were performing anti-burglary and anti-robbery operations in the vicinity of Caine Road, Central on 28 May 2000. At 2.30 p.m., while patrolling in Castle Road he saw the applicant holding a black leather bag under his armpit, walking downhill along Castle Road, and looking around at the buildings nearby. The Sergeant, therefore, summoned other team members over his beat radio to render reinforcement. After that he saw the applicant talking with the 2nd accused for about one minute outside a McDonald’s shop. The two of them then went together to Castle Road and walked towards Seymour Road.", "zh-HK": "本案案情簡單。根據控方的證供，警長17626與其他隊員於2000年5月28日在中環堅道一帶執行反爆竊及反搶劫行動。下午2時30分，他在衛城道巡邏，看見申請人腋下夾着一個黑皮袋，在衛城道從上往下行，並向附近的大廈四週張望，於是警長用他的對講機召援其他隊員支援。其後他看見申請人在麥當勞店與第2被告人談話大約一分鐘，然後兩人一同到衛城道行向西摩道。" } }, { "doc_id": 171, "seg_id": 18, "translation": { "en": "When the two of them reached the building of No. 20 Castle Road, the 2nd accused went towards the building’s main door. At that time a Filipino domestic helper was walking out from the inside and the main door was open. The 2nd accused then entered the building. The applicant continued to walk ahead and reached a rear lane further up from the building. He looked into the rear lane for two to three minutes and then walked down Castle Road. When he returned to that building he stood at the doorway for a while. The main door was then opened and he also entered the building.", "zh-HK": "當兩人到達衛城道20號的大廈時，第2被告人走向該 大廈大門，當時有一名菲律賓傭人正在行出，大門是開啟着的，第2被告人就進入該大廈內。申請人則向前行，去到該大廈對上的後巷，觀看後巷2至3分鐘，然後沿衛城道行下。當他回到該 大廈時，在門口站了一會，大門其後打開，他亦進入了該大廈。" } }, { "doc_id": 171, "seg_id": 19, "translation": { "en": "At 2.52 p.m., other police constables arrived at the scene. The Sergeant then deployed his team members. At 3.00 p.m., the applicant and the 2nd accused had not yet left the building, and therefore the Sergeant and PC 52949, PC 48112 and WPC 18639 entered the building to investigate. There were no lifts but only flights of stairs. They walked up the stairs. When they reached the landing between the 1st and 2nd floors, the Sergeant saw that the applicant was bending down holding a crowbar with both hands and was doing something, near the lock, to the wooden door of the residential flat on the 2nd floor. The Sergeant then dashed forwards and shouted loudly, “Police, don’t move”, and he gripped the applicant by the shoulder and ordered him to kneel down. At that time the Sergeant saw the 2nd accused standing behind the applicant. Afterwards PC 48112 went forward to assist the Sergeant in arresting the applicant, while WPC 18639 arrested the 2nd accused.", "zh-HK": "下午2時52分，其他警員到達現場。警長吩咐他的隊員作出部處。下午3時，申請人及第2被告人還未離開該大廈，於是警長與警員52949、48112及女警18639進入該大廈內調查。那沒有電梯，只有樓梯。他們步行上樓，當抵達2樓與3樓梯間的平台時，警長見到申請人彎身用雙手拿着鐵筆，在3樓住宅的木門近鎖的地方有所動作；警長於是衝上前大喝“差人，咪郁”，及按着申請人的肩膊，令他跪下。當時警長見到第2被告人站在申請人後面。其後警員48112上前協助警長拘捕申請人，而女警18639則拘捕第2被告人。" } }, { "doc_id": 171, "seg_id": 20, "translation": { "en": "At that time the iron door of the residential flat on the 2nd floor was already opened and the wooden door showed marks of having been prized near the lock. The Sergeant ordered PC 48112 and WPC 18639 to arrest the applicant and the 2nd accused respectively. The Sergeant saw that there were a crowbar, a black cloth bag and a handbag on the ground, and inside the black cloth bag there were two crowbars, two pairs of gloves and a cap.", "zh-HK": "當時該3樓住宅的鐵門已打開，而木門近鎖處有被撬的痕跡。警長指令警員48112和女警18639分別拘捕申請人和第2被告人。警長見到地上有一枝鐵筆、一個黑布袋及一個手袋，在黑布袋有兩枝鐵筆、兩對手套及一頂喼帽。" } }, { "doc_id": 171, "seg_id": 21, "translation": { "en": "At 3.10 p.m., PC 48112 declared that the applicant was under arrest for the offence of burglary and orally cautioned him. The applicant replied,", "zh-HK": "下午3時10分，警員48112宣布拘捕申請人爆竊罪行和口頭警誡他，申請人回答說：" } }, { "doc_id": 171, "seg_id": 22, "translation": { "en": "“As I am caught red-handed, if my girlfriend is released, I can co-operate with you. I can tell you about the two jobs I did a few days ago.”", "zh-HK": "“我都斷正，只要放咗我條女，我可以同你合作，我早幾日我做咗兩單，我可以講比你聽。”" } }, { "doc_id": 171, "seg_id": 23, "translation": { "en": "When the whole party returned to the Central Police Station, PC 48112 interviewed the applicant for the purpose of making a post record and asking the applicant some questions. Having completed the post record and cautioned the applicant again, he asked the applicant the following question:", "zh-HK": "一眾回到中央警署後，警員48112接見申請人，目的是進行補錄及問申請人數個問題。在完成補錄及再次警誡申請人後，他問申請人以下的問題：" } }, { "doc_id": 171, "seg_id": 24, "translation": { "en": "“Earlier on you told me you did two jobs a few days ago. What does that mean?”", "zh-HK": "“你較早前同我講早幾日做咗兩單，究竟係乜嘢意思？”" } }, { "doc_id": 171, "seg_id": 25, "translation": { "en": "The applicant replied,", "zh-HK": "申請人回答說：" } }, { "doc_id": 171, "seg_id": 26, "translation": { "en": "“The first job was done about 4 days ago, further up from Shelley Street, Central, on Floor Two [二樓in Chinese] of the building where renovation works were going on right below that floor. I went inside and took some foreign currency. Later I exchanged it for about HK$1,060. The second job was done in Seymour Terrace, on Floor Three [三樓 in Chinese] of a building, the house number of which I cannot recall. I entered the flat and took a video camera which I sold for about HK$3,000. Then I prized with a crowbar the main door to a flat on Floor Two [二樓 in Chinese] but was not able to gain entry.”", "zh-HK": "“第一單係四日前左右，係中環些利街對上，樓下有裝修的大廈二樓，我入到屋攞咗外幣，後來我換咗港紙一千零六十鈫左右。而第2單係西摩台，但唔記得幾多號嘅大廈三樓。我入到屋攞咗一部攝錄機後，我就賣咗港幣三千鈫左右。跟住我係二樓就用鐵筆撬過大門，但入唔到屋。”" } }, { "doc_id": 171, "seg_id": 27, "translation": { "en": "The Grounds of Appeal against Conviction", "zh-HK": "針對定罪的上訴理由" } }, { "doc_id": 171, "seg_id": 28, "translation": { "en": "Before this Court, Mr. Wong of Counsel sought leave to appeal against conviction on the 1st and 2nd charges. In essence he submitted the following two grounds of appeal:", "zh-HK": "在本庭前，王大律師就第(1)及(2)項判罪作出上訴許可的申請。王大律師所提出的實質理由有兩項，如下：" } }, { "doc_id": 171, "seg_id": 29, "translation": { "en": "Judge Wong was wrong in admitting into evidence the confession statements made by the applicant to the police because the applicant gave ample and strong evidence that he had been induced by the police to sign the confessional statements. The applicant’s evidence was that as an inducement to him to sign the confession statements, the police promised to release his girlfriend (i.e., the 2nd accused) and allow him to get a lawyer.", "zh-HK": "黃法官接納申請人向警方所作的招認口供為證據是犯錯的，因為申請人作供時說他被警方引誘而簽認該招認口供是充份而有力的。申請人的證供是警方釋放他的女朋友（即第2被告人）及容許他找律師，引誘他簽署他的招認口供。" } }, { "doc_id": 171, "seg_id": 30, "translation": { "en": "Even if the contents of the applicant’s confession statements were accepted, it was no proof beyond reasonable doubt that he had committed the offences in the 1st and 2nd charges.", "zh-HK": "申請人的招認口供的內容不能在毫無疑點的情況下證明他犯了第(1)項及第(2)項控罪。" } }, { "doc_id": 171, "seg_id": 31, "translation": { "en": "The 1st Ground of Appeal against Conviction", "zh-HK": "針對定罪的上訴理由" } }, { "doc_id": 171, "seg_id": 32, "translation": { "en": "The applicant’s confession statements mentioned in paragraphs 13 and 14 above were recorded in the notebook of PC 48112 and were produced in court as exhibit P14. Besides, after he had been interviewed by PC 48112, the applicant was further interviewed twice by another police constable at the police station. The interviews were videotaped. The written records of the interviews were also produced by the applicant and marked exhibits D1 and D1a. Mr. Wong of Counsel argued that the confessions made by the applicant to the police were all made as a result of inducement on the part of the police. He said that the contents of exhibits D1 and D1a provide strong support for this point. The applicant said in exhibit D1a,", "zh-HK": "在上文第13及14段所述的申請人的招認口供，是載於警員48112的記事簿中，呈堂為P14號證物。另外，與警員48112會面後，申請人在警署另一警員兩次會面，會面的書面記錄，證物D1及證物D1a。王大律師辯稱申請人向警方作出招認，都是警方引誘的。他說證物D1及D1a的內容强力支持這點。在D1a中，申請人曾說：" } }, { "doc_id": 171, "seg_id": 33, "translation": { "en": "“This was when the cop spoke to me, told me that [he] would allow me to get a lawyer. He told me just to admit to two jobs and then he would, and let me use the telephone to get a lawyer. That is to let, that is to let me get a lawyer as well as let my girl go, release my girl on bail, that is to release my girlfriend on bail. So I did not sign until he, after he had written, and I was not quite sure of the actual content.”", "zh-HK": "“呢度係差人同我講嘅時候呢，就佢話可以比我揾律師，佢只要叫我認咗兩單，咁佢就可以，同比我比電話我揾律師，即係比，即係比我揾律師同埋可以放咗我條女，比我條女担保，即係比我女朋友担保咁樣囉，所以佢，佢寫咗之後，我先至簽名 囉，咁實質內容我就唔係咁清楚。”" } }, { "doc_id": 171, "seg_id": 34, "translation": { "en": "The applicant went on to say,", "zh-HK": "申請人續說：" } }, { "doc_id": 171, "seg_id": 35, "translation": { "en": "“Because at that time I was anxious and wanted to get a lawyer. I also just wanted my girlfriend to be bailed out, the sooner the better. And so, we reached an agreement. I was asked to admit to two jobs. With [my] admission to two jobs, he would let me get a lawyer, that is, my girlfriend would be allowed bail.”", "zh-HK": "“因為當時我係心急，係想揾律師，同埋係只想我女朋友早啲担保出去，所以大家協意之下，就係叫我認兩單，認兩單佢就可以比我揾律師，即係比我女朋友担保出去咁樣。”" } }, { "doc_id": 171, "seg_id": 36, "translation": { "en": "In his Reasons for Verdict, Judge Wong ruled as follows:", "zh-HK": "在他的裁決理由書中，黃法官有如下的：" } }, { "doc_id": 171, "seg_id": 37, "translation": { "en": "“D1 objected to the production in court of the reply to the oral caution at the scene and of the post-recorded statement on the grounds that he had been threatened and induced. My ruling after the hearing was that he provided the entire contents voluntarily. In my ruling, what he said and what was recorded on videotape were entirely voluntary. So, I accepted the evidence and allowed the production of the evidence in court.”", "zh-HK": "“第1被告對於現場口頭警誡的回應及補錄口供反對呈堂，是因為受到威逼利誘。但經聆訊後，本席判斷他是自願提供所有的內容，本席判斷他所講及錄影的內容全是自願，因此接納證供，容許證供提堂。”" } }, { "doc_id": 171, "seg_id": 38, "translation": { "en": "Mr. Wong complained that Judge Wong had not given detailed reasons for admitting the applicant’s confession statements. However, Senior Assistant Director of Public Prosecution, Ms. Ip So Ng for the respondent submitted that there was no need for Judge Wong to give detailed reasons when ruling on the voluntariness of the applicant’s confessions. Ms. Ip of Counsel cited R v CHAN King-hei [1995] 1 HKCLR 288, 291 in support of her view. In that case, Mortimer JA cited R v LAM Yip-ying [1984] HKLR 419 and reiterated that there was no need for the trial judge to give the reason for the ruling when deciding whether a statement was made voluntarily. This Court is satisfied that the legal proposition stated by Ms. Ip is correct. The trial judge did not err when he admitted the applicant’s confession statements into evidence without giving the reasons in detail. This does not constitute any valid ground of appeal.", "zh-HK": "王大律師的投訴，是黃法官並沒有就接納申請人的招認口供列出詳細的理由。但是，代表答辯人的高級助理刑事檢控專員葉素吾指出，黃法官裁定申請人的招認是自願作出陳述詳細的理由。葉大律師援引女皇訴陳景熹（譯音）一案。在該案中，馬天敏上訴法官引用女皇訴林葉英（譯音） 案，重申主審法官於判定一份口供自願時，是無需其裁決理由的。本庭認為，葉大律師所述的法律是正確的，原審法官接納申請人的招認口供為證據詳細理由，並沒有犯錯。" } }, { "doc_id": 171, "seg_id": 39, "translation": { "en": "Mr. Wong of Counsel cited HKSAR v Dhillon, CACC 387/00 (24 August 2001, unreported) and submitted that the Court of Appeal would quash a conviction on the grounds that the trial judge failed to state clearly how contradictory facts in a case were ruled upon. In that case, two facts were in issue and the relevant evidence about each fact was in conflict. In the Reasons for Verdict, the trial judge did not mention at all how the conflicts were resolved, nor did he state why he accepted the fact which was unfavourable to the accused whilst rejecting the fact that was favourable to him. Most importantly, those facts in conflict were both admitted by the prosecution witnesses. The situation in the above case differs greatly from the situation in the present case. In the present case, both the prosecution and the defence provided evidence which was at odds in respect of the voluntariness of the applicant’s confession statements, with each side sticking to its own version of the account. Judge Wong, as did all trial judges, had the advantage of having the opportunity to hear the witnesses and observe their demeanour when they gave evidence, and by comparison the Court of Appeal was denied such an advantage and could only rely on the transcript of the testimony. In deciding to accept the testimony of one party and reject that of the other, he did not have to state all the reasons for doing so (see HKSAR v CHOI Gin-ngon & Ors [1998] HKLRD 902 at 909-910). In the Dhillon case there were conflicting facts that were all admitted by the prosecution witnesses. But the situation in that case is completely different from that in this case. The question that Judge Wong had to determine is also not the same.", "zh-HK": "王大律師援引香港特別行政區訴狄朗（譯音） 一案，上訴法庭因原審法官沒有斷案中矛盾事實而推翻判罪。該案涉及兩項有爭議的事實，每項相關的證據是互相矛盾的；原審法官在裁決理由書中完全沒有提及該等矛盾，為甚麼接納對被告人不利而不接納對他有利的事實；而且最重要的是那些相衝的事實都是控方證人所承認的。與本案的情況大大不同。在本案，控辯雙方的證供各執一詞，像所有原審法官一樣，有聆聽和觀察各證人作供時的神情舉止，上訴法庭只能審閱證詞謄本；他決定一方的證詞而拒納另一方的證詞，是不需要陳述所有理由的（見香港特別行政區訴蔡展昂（譯音）及其他人）。狄朗案中衝突事實，都是控方證 人所承認的，與本案 的情況完全不同，與黃法官要裁決的不一樣。" } }, { "doc_id": 171, "seg_id": 40, "translation": { "en": "In addition, the contents of exhibits D1 and D1a can also show that the applicant’s allegation that his confession statements were involuntary was farfetched and without merits. Exhibit D1 recorded that the interview began at 7.46 p.m. on 28 May. In the Interview, the applicant posed the question to SDPC 11248 whether he could get a lawyer to represent him before the videotaped interview began. If it was as stated by the applicant in exhibit D1a (that is, in the second videotaped interview which began at 11.24 p.m. that night) that he confessed to PC 48112 because the police constable had made a promise that he would be allowed to get a lawyer if he confessed to the other two offences, then he would not need to ask SDPC 11248 whether he could get a lawyer before the videotaped interview began.", "zh-HK": "而且，證物D1及D1a 的內容，亦可申請人招認口供並非自願理由不充份。D1所記錄的會面是於5月28日下午7時46分開始進行。在該會面中，申請人向高級探員11248提出問題，就是他是否可以找律師代表他才作錄影會面。若果如申請人在D1a（即從該晚11時24分開始的第2次錄影會面）中所說，他向警員48112所作的招認是因為該警員若他承認另外兩項罪行，就容許他找律師，他就不需要向高級警員11248發問是否可以找律師才錄影會面。" } }, { "doc_id": 171, "seg_id": 41, "translation": { "en": "When the second videotaped interview (as recorded in exhibits D1a) was underway, the applicant’s lawyer was also present. During the interview, the applicant was not very willing to answer most of the questions asked by the police. Also, he often said that he was not willing to answer for the time being. However, he did answer the following question:", "zh-HK": "第2個錄影會面（即D1a所記錄的）進行時，申請人的律師也在場。在這會面中，申請人大多不願作答，亦常說他暫時不願作答。但是，對於下列問題，他就有作答：" } }, { "doc_id": 171, "seg_id": 42, "translation": { "en": "“Question:Well, at the time when the police arrested you, you were asked that, and you said…you had done two jobs. You were asked what that meant. The first job was done about 4 days ago, further up from Shelly Street in Central, on Floor Two [二樓 in Chinese] of the building where renovation works were going on right below that floor. You went inside and took away some foreign currency which was later exchanged for about HK$1,060. The second job was done in Seymour Terrace, on Floor Three [三樓 in Chinese] of the building, the house number of which you cannot recall. You went into the flat and took away a video camera which was later sold for about HK$3,000. Then on Floor Two [二樓 in Chinese] I [sic] prized the main door with a crowbar but was not able to gain entry. Well, this is how it should be read, as that is what you told the police. Do you agree?", "zh-HK": "“問：呢個曾經响差人啦你陣時呢，咁問過你呢咁你話 …. 你做過兩單，問你咩意思，咁第一單四日前左右喺中環些利街對上樓下有裝修嘅大廈二樓，你入咗入面就攞咗外幣，後來換咗港幣一千零六十蚊左右，而第二單就喺西摩台，唔記得幾多號嘅大廈三樓，你入到屋攞咗一部攝錄機，後來就賣咗港幣三千蚊左右，跟住我喺二樓就用鐵筆撬開大門，但入唔到屋，咁樣解釋番呢度係，因為呢度係，係你同差人講，你同唔同意先？" } }, { "doc_id": 171, "seg_id": 43, "translation": { "en": "Answer:Agree.”", "zh-HK": "答：同意。”" } }, { "doc_id": 171, "seg_id": 44, "translation": { "en": "Although the applicant claimed that at the time of the 2nd videotaped interview, he had confessed to PC 48112 only because of the inducement and promise on the part of the police, the contents of exhibits D1 and D1a did not fully support, as suggested by Mr. Wong, the truth of the applicant’s claim. As a matter of fact Judge Wong commented as follows:", "zh-HK": "雖然申請人在第二次錄影會面，向警員48112的招認是因為警方的引誘及承諾出，但是D1及D1a的內容並不是如王大律師所說，充份支持申請人聲稱真實。實，黃法官也有如下的：" } }, { "doc_id": 171, "seg_id": 45, "translation": { "en": "“I also absolutely believe that the 1st accused, hoping to save the 2nd accused, mentioned of his own volition under caution his previous acts of burglary.”", "zh-HK": "“本席也絕對相信第一被告因想救第二被告，而自動在警誡後講及他先前的爆竊行[為]。”" } }, { "doc_id": 171, "seg_id": 46, "translation": { "en": "Before this Court, Mr. Wong of Counsel submitted for the first time that the contents of the confessions in exhibit P14 alone would suffice to prove to the satisfaction of this Court that the confessions had been clearly made on account of police inducement. The confession as quoted in paragraph 13 of this judgment is repeated for perusal:", "zh-HK": "在本庭前，王大律師首次提出單以P14號證物中的招認内容，就足以令本庭招認明顯地是警方的引誘而作出的。該招認在本判詞第13段已有陳述，現在此重覆以細察：" } }, { "doc_id": 171, "seg_id": 47, "translation": { "en": "“As I am caught red-handed, if my girlfriend is released, I can co-operate with you. I can tell you about the two jobs I did a few days ago.”", "zh-HK": "“我都斷正，只要放咗我條女，我可以同你合作，我早幾日我做咗兩單，我可以講比你聽。”" } }, { "doc_id": 171, "seg_id": 48, "translation": { "en": "Mr. Wong argued that at that time the applicant made a request to the police, that is, a request for the release of his girlfriend. However, there was no evidence as to whether the police had denied or rejected his request. In such circumstances, any confessions he subsequently made to the police must be made involuntarily. In our judgment, Mr. Wong’s argument is fallacious. If his argument is correct, then in any case where a suspect makes it clear to the police that he has a request to make before he confesses, unless the police refuses his request immediately, it would amount to the police’s assenting to the request, and it would necessarily follow that any confession by the suspect would have been made on account of police inducement and not voluntarily. We do not want to say anything further about this. Suffice it to say that this argument is just sophistry and is extremely unreasonable. Moreover, in the present case, before the applicant made the confessions contained in paragraph 14 of this judgment, PC 48112 reminded and cautioned him as follows: “You are not obliged to say anything unless you wish to do so….” Having heard the reminder/caution, the applicant said that he understood and then he made the confessions.", "zh-HK": "王大律師辯稱，申請人當時向警方提出了他的要求，即要求釋放他的女朋女，又沒有證據證明警方曾否定或不接納他的要求；，他其後向警方所作的任何招認必定不是在自願的情況下作出的。本庭認為，王大律師的論調是悖理的。他的論調疑犯向警方表明他有所要求後作出招認，除非警方立刻拒絕該要求，警方已答應了他的要求，疑犯的招認必然是警方誘致而不是自願作出的。本庭不需多言，這說法只是詭辯，理。而且在本案，申請人作出在上文第14段所載的招認前，警員48112已向他提醒警誡，“唔係是必要你講嘅，除非你自己想講喇 …”，在聽到提醒警誡後説他明白，然後才作出招認。" } }, { "doc_id": 171, "seg_id": 49, "translation": { "en": "This Court considers that Judge Wong did not err in ruling that the applicant did confess to the police of his own volition.", "zh-HK": "本庭認為，黃法官裁定申請人是自願向警方招認，並沒有犯任何錯誤。" } }, { "doc_id": 171, "seg_id": 50, "translation": { "en": "For the above reasons, this Court finds that the 1st ground of appeal should fail for it is without merit.", "zh-HK": "基於上述原因，本庭認為第(1)項上訴理由全無理據，不能成立。" } }, { "doc_id": 171, "seg_id": 51, "translation": { "en": "The 2nd Ground of Appeal against Conviction", "zh-HK": "針對定罪的上訴理由" } }, { "doc_id": 171, "seg_id": 52, "translation": { "en": "With regard to the 2nd ground of appeal, Counsel, Mr. Wong vigorously asserted that the two burglaries which the applicant described in his confession statements to the police were different from those referred to by the two prosecution witnesses.", "zh-HK": "就第(2) 項上訴理由，王大律師力陳，申請人向警方招認的口供內描述的兩項爆竊，和兩名控方證人所指的不同。" } }, { "doc_id": 171, "seg_id": 53, "translation": { "en": "In his Reasons for Verdict, Judge Wong clearly referred to the evidence of the two prosecution witnesses:", "zh-HK": "在裁決理由書中，黃法官清楚提及該兩名控方證人的證供：" } }, { "doc_id": 171, "seg_id": 54, "translation": { "en": "“Odagiri Yuko returned home at 5.30 p.m. on 24 May 2000 to the 2nd floor of No.4 Seymour Terrace and discovered that it had been ransacked. It was later found that a video camera and a clock were missing.", "zh-HK": "“小田切優子在2000年5月24號下午5時30分回到西摩台4號2樓家中時，發現被搜掠過，後來發現失去一部攝錄機及一個時鐘。" } }, { "doc_id": 171, "seg_id": 55, "translation": { "en": "At 4.35 p.m. on that day, Kwong Shue Wing returned to the 1st floor of No.4 Seymour Terrace and discovered that the main door showed marks of having been prized, but there was no loss.”", "zh-HK": "鄺樹榮當天下午4時35分回到西摩台4號1樓時，發現大門有被撬過的痕跡，但無損失。”" } }, { "doc_id": 171, "seg_id": 56, "translation": { "en": "A comparison can be made between the evidence of the two prosecution witnesses and the confession statements made by the applicant to the police (see paragraphs 14 and 22 above) as follows:", "zh-HK": "這兩名證人的證供，與申請人向警方所招認的口供（見上文第14和22段），可作出以下比較：" } }, { "doc_id": 171, "seg_id": 57, "translation": { "en": "Time of Offences:The words “about 4 days ago” in the confession statements mean about 4 days before 28 May 2000, and this is corroborated by the testimony of the two prosecution witnesses that the burglary and the attempted burglary took place on the 24 May 2000.", "zh-HK": "案發時間：招認口供中說“四日前左右”是指2000年5月28日之前四日左右 ，與該兩控方證人所指爆竊及意圖爆竊的證供相符。" } }, { "doc_id": 171, "seg_id": 58, "translation": { "en": "Scenes of Offences:The confession statements give Floor Three [三樓 in Chinese] and Floor Two [二樓 in Chinese] of a building whose house number cannot be recalled in Seymour Terrace as the scenes of the offences. These correspond with the scenes of the offences as given by the two prosecution witnesses, that is Floor Number 2 (i.e., the 2nd floor in English) and the floor below, that is, Floor Number 1 (i.e., the 1st floor) of Seymour Terrace. Although the confession statements did not mention the house number of the building, the two residential flats mentioned in the confession statements are located on two storeys, one above the other, of the same building. This corresponds with the testimony of the two prosecution witnesses.", "zh-HK": "犯案地點：招認口供指地點為西摩台一幢不記得號數的大廈的三樓和二樓，與該控方證人所說犯案地點是在西摩台4號2字樓(即英語的2nd floor)及下一層的1字樓(1st floor)相符。雖然招認口供沒有提及該大廈的號數，但是招認所的兩所住宅是在同一大廈上下兩層卻是與該兩證 人的證供極之合。" } }, { "doc_id": 171, "seg_id": 59, "translation": { "en": "Property Lost:The applicant confessed that he stole a video camera from Floor Three [三樓 in Chinese] and this corresponds with the testimony of Odagiri Yuko that she lost a video camera. Mr. Kwong said that the main door of his flat showed marks of having been prized and this is corroborated by what the applicant said in his confession statements.", "zh-HK": "失去財物：申請人招認時說他三樓的樓宇盜取了一部攝錄機，與小田切優子說她失去了一部攝錄機相符。鄺先生說他住所的大門有被撬過的痕蹟，這與招認所述的也合。" } }, { "doc_id": 171, "seg_id": 60, "translation": { "en": "However, Mr. Wong of Counsel stressed that the words “the first job was about 4 days ago” in the applicant’s confession statements meant the day of the burglary perpetrated on the 1st floor of a building in Shelley Street in Central, and it was not necessarily the day of the burglary perpetrated in Seymour Terrace; that the applicant made no mention of the house number of the building in Seymour Terrace; that he only said that he had been to Floor Three [三樓 in Chinese] and burglarized there and that he prized the main door of a residential flat on Floor Two [二樓 in Chinese] of that building; and that these confessions on the part of the applicant were not consistent with what the two prosecution witnesses said. In support of his argument, Mr. Wong insisted that what local people call “Floor Three” [三樓 in Chinese] is not the same as what is called the 2nd floor in English (i.e., the floor which Hong Kong people sometimes call “Floor Number 2” [2字樓 in Chinese] in order to avoid ambiguity); and that what local people call “Floor Two” [二樓 in Chinese] is not the same as what is called the 1st floor in English (i.e., the floor which Hong Kong people sometimes call “Floor Number 1” [1字樓 in Chinese] in order to avoid ambiguity). In fact these different ways of calling the floors of a building are very commonly in use. Hong Kong people all understand them and are accustomed to them. Mr. Wong should not resort to sophistry. The ground he raised can hardly explain the fact that the contents of the applicant’s confession statements are corroborated by the testimony of the two prosecution witnesses. If the applicant were not the perpetrator, there would be no reason why there is such a high degree of corroboration. In our judgment, the 2nd ground of appeal and the argument put forward by Mr. Wong of Counsel are devoid of merit and should fail.", "zh-HK": "王大律師卻强調，申請人招認中的 “第一單係四日前左右”，是指中環些利街的大廈二樓爆竊的日期，並非一定是西摩台爆竊的日期，而且申請人没有説西摩台大厦的號數，只說曾入到該大廈三樓爆竊及撬過該大廈二樓住宅大門，都和該兩名控方證人所説的不符。為了這些論調，王大律師硬稱本地人所説的三樓並不等如英語的2nd floor(即為免有出入起見有時香港人稱之為2字樓)，和本地人所説的二樓並不等如英語的1st floor(即為免有出入起見香港人稱之為1字樓)。其實這各種叫法是極為普遍而又是香港人明白及慣用的，王大律師不應强詞奪理。他所提出的論據，都不能解釋招認的内容和兩名證人證言；若申請人是犯案者，沒有理由有這麽高度的合。本庭認為，第(2)項上訴理由及王大律師提出的，全屬無理，不能成立。" } }, { "doc_id": 171, "seg_id": 61, "translation": { "en": "In his Notice of Application to appeal, the applicant said that Judge Wong should accept his evidence, and should not have accepted the prosecution’s evidence. However, the applicant failed to give any reason to support that. The applicant also asserted that there was no fingerprint evidence against him. However, the absence of evidence of the accused’s fingerprints does not mean that he was not the perpetrator. So long as there is ample other evidence to prove the guilt of the accused, the court may still bring in a verdict of “Guilty” even without any fingerprint evidence. In the present case, the applicant voluntarily confessed that he had committed the 1st and 2nd charges, and the confessions have been held to be authentic and reliable. Ample evidence has been adduced to prove the applicant’s guilt. Judge Wong did not err in any way. Accordingly, the applications by the applicant for leave to appeal against conviction are dismissed.", "zh-HK": "申請人在他的申請通知書說黃法官應接納他的證供，而不應相信控方的證供，但他卻提不出理由支持這說法。他又投訴沒有指紋證據指證他。但缺乏被告人指紋證據，並不表示被告人不是犯案者。只要有其他充份證據證明被告人犯案，就算沒有指紋證據，法庭也可作出定罪裁決。在本案中，申請人自願招認犯了第(1)項及第(2)項控罪罪名，且招認的內容亦被裁定為真確及可靠。證明申請人犯案的證據充份，黃法官並無犯錯，故本庭駁回申請人就其定罪提出的申請。" } }, { "doc_id": 171, "seg_id": 62, "translation": { "en": "Conclusion", "zh-HK": "結論" } }, { "doc_id": 171, "seg_id": 63, "translation": { "en": "For the reasons given above, this Court refuses the applications.", "zh-HK": "基於上述原因，本庭拒絕申請。" } }, { "doc_id": 171, "seg_id": 64, "translation": { "en": "Loss of Time", "zh-HK": "扣時" } }, { "doc_id": 171, "seg_id": 65, "translation": { "en": "Before hearing these applications, this Court reminded the applicant that if the Court finds the appeal utterly without substance and unjustified, the Court may order loss of time already spent in custody (see paragraphs 7 & 8 above). Actually it is not necessary for us to provide such a reminder. We provided it because we were concerned that the applicant and his counsel Mr. Wong might have forgotten the power with which this Court is vested under section 83W of the Criminal Procedure Ordinance. Earlier in this judgment, this Court has pointed out that the present appeal is devoid of merit. The applications were in fact a waste of the court’s resources, an abuse of public fund. Therefore, it is ordered that the three months the applicant already spent in custody pending the hearing of these applications are not to be reckoned as part the term of sentence which the applicant is to serve.", "zh-HK": "在本案聆訊前，本庭已提醒申請人若本庭認為上訴全無理據支持，本庭可命令扣時（見上文第7、8段）。其實本庭要作出該提點，因恐怕申請人及王大律師忘記《刑事訴訟條例》第83W條予本庭的權力。本庭在上文已指出，本案所提出的上訴理由，全無理據。這申請實是浪費法庭資源，用公帑故本庭命令，申請人在聽候本申請時在扣押中的3個月，不得刑期。" } }, { "doc_id": 171, "seg_id": 66, "translation": { "en": "As a general reminder to all appellants lodging criminal appeals or applicants seeking leave to appeal and also to their representatives in the legal profession, we would now like to point out that in normal circumstances, this Court will not in future remind them, before hearing their case, that it may exercise the power with which it is vested under section 83W or under section 83I (to increase the sentence). We also elaborated on this point in another criminal appeal case the judgment on which we also gave today, namely, HKSAR v Yu Tai Chi CACC 476/2000 (24 October 2001).", "zh-HK": "現本庭提醒刑事上訴的上訴人或上訴許可的申請人及代表他們的法律界人士，在通常的情況下，本庭日後不會在聆訊開始時，就本庭會運用該83W條，或第83I條的權力（即加刑）去處理案件作出提點。 這點在今天宣判的另一刑事上訴案件，即香港特別行政區訴余大志 一案也有所闡述。" } }, { "doc_id": 171, "seg_id": 67, "translation": { "en": "Ms. M. S. N. Ip, Senior Assistant Director of Public Prosecution of the Department of Justice, for the Government of HKSAR.", "zh-HK": "控方：由律政司葉素吾高級助理刑事撿控專員代表香港特別行政區政府。" } }, { "doc_id": 171, "seg_id": 68, "translation": { "en": "Mr. Wong Po Wing assigned by the Department of Legal Aid for the Applicant in the applications relating to the 2nd and 3rd charges, of which he was convicted.", "zh-HK": "辯方：由法律援助署委派王寶榮大律師就第(2)及(3)項定罪的申請代表申請人。" } }, { "doc_id": 172, "seg_id": 1, "translation": { "en": "Hon Barnes J (giving the reasons for judgment of the Court):", "zh-HK": "原訟法庭法官張慧玲頒發上訴法庭判案理由書：" } }, { "doc_id": 172, "seg_id": 2, "translation": { "en": "Background", "zh-HK": "背景" } }, { "doc_id": 172, "seg_id": 3, "translation": { "en": "The Applicant was charged with two offences involving a dangerous drug: Charge 1 was possession of 1.72 g of a powder containing 1.49 g of ketamine, and Charge 2 was trafficking in 3.36 kg (i.e. 3,360 g) of a powder containing 2.89 kg (i.e. 2,890 g) of ketamine.", "zh-HK": "申請人被控兩項涉及危險藥物的罪行：控罪‍一是管有內含1.49 克氯胺酮的1.72 克粉末，控罪‍二是販運內含2.89 公斤 (即2,890 克) 氯胺酮的3.36 公斤 (即3,360 克) 粉末。" } }, { "doc_id": 172, "seg_id": 4, "translation": { "en": "The Applicant pleaded guilty to both charges before a magistrate and was committed to the Court of First Instance for sentence. The case was dealt with by Deputy High Court Judge Joseph Yau (“the Judge”). The Judge adopted 9 months’ imprisonment and 19 years and 9 months’ imprisonment as the starting points for Charges 1 and 2 respectively. On account of the Applicant’s guilty pleas, the two terms of imprisonment were reduced by one-third, to 6 months and 13 years and 2 months respectively. The Judge also ordered that 2 months of the sentence for Charge 1 was to run consecutively tothe sentence for Charge 2, making a total term of 13 years and 4 months.", "zh-HK": "申請人在裁判法院承認兩項控罪，交付高等法院原訟法庭判刑。案件由高等法院暫委法官邱‍智‍立 (「原審法官」) 審理。原審法官就控罪‍一及控罪‍二分別採納9 個月監禁及19 年9 個月監禁為量刑起點，在給予申請人1/3認罪扣減後，判刑6 個月及13 年2 個月監禁。原審法官亦判令控罪‍一的2 個月與控罪‍二的判刑分期執行，合共13 年4 個月監禁。" } }, { "doc_id": 172, "seg_id": 5, "translation": { "en": "The Applicant applied for leave to appeal sentence.", "zh-HK": "申請人不服判刑，提出上訴許可申請。" } }, { "doc_id": 172, "seg_id": 6, "translation": { "en": "At the conclusion of the hearing, we allowed the application and, treating the application as the appeal proper, we allowed the appeal to the extent that the sentences for Charges 1 and 2, while remaining unchanged individually, were to run concurrently, thereby reducing the total term of imprisonment to 13 years and 2 months. Our reasons for judgment are set out below.", "zh-HK": "本庭在聆訊後批准上訴許可申請，並視之為正式上訴。本庭裁定上訴得直，不改變控罪‍一及控罪‍二的個別刑期，但改判兩項控罪的判刑同期執行，而將總刑期減為13 年2 個月。以下是本庭的理由。" } }, { "doc_id": 172, "seg_id": 7, "translation": { "en": "Prosecution case", "zh-HK": "控方案情" } }, { "doc_id": 172, "seg_id": 8, "translation": { "en": "On 17 May 2012, a team of police officers who laid in ambush near Wai On Building, Wai Yan Street, Tai Po, saw the Applicant enter Wai On Building. Five minutes later, the Applicant left Wai On Building and was intercepted by the police outside Fuk Wah Building on Kwong Fuk Road. From a sling bag carried by the Applicant, the police found one folded 20-dollar banknote which held a powder weighing 1.72 g. Under caution, the Applicant remained silent (Charge 1).", "zh-HK": "案情顯示在2012 年5 月17 日，一隊警務人員在大埔懷仁街懷安樓附近埋伏，其後看見申請人進入懷安樓。5 分鐘後，申請人離開懷安樓，在廣福道福華樓外被警員截查。警員在申請人攜帶的斜孭袋內發現一張摺著的20 元紙幣，內有1.72 克粉末。警誡下，申請人保持緘默 (控罪‍一)。" } }, { "doc_id": 172, "seg_id": 9, "translation": { "en": "Thereafter, the police searched the Applicant’s residence on the 5th floor of Wai On Building, where one electronic scale, one pair of scissors and 14 tinfoil packets, which contained a powder with a total weight of 3,360 g and containing 2,890 g of ketamine, were found. Under caution, the Applicant admitted that the powder was ketamine (Charge 2).", "zh-HK": "警方其後搜查申請人位於懷安樓5 樓的住所，搜獲1 個電子磅、1 把剪刀和14 個鋁紙包。鋁紙包載有內含2,890 克氯胺酮的3,360 克粉末。警誡下，申請人承認粉末為氯胺酮 (控罪‍二)。" } }, { "doc_id": 172, "seg_id": 10, "translation": { "en": "The street value of the ketamine involved was approximately HK$400,000.", "zh-HK": "涉案的氯胺酮巿值約40 萬港元。" } }, { "doc_id": 172, "seg_id": 11, "translation": { "en": "Background of the Applicant", "zh-HK": "申請人背景" } }, { "doc_id": 172, "seg_id": 12, "translation": { "en": "At the material time, the Applicant was 27 years old and had received education up to Form 2. He was married but he and his wife subsequently separated. He worked on a casual basis and earned about $9,000 per month. He had four conviction records, one of which was for trafficking in a dangerous drug for which he was sentenced to the training centre.", "zh-HK": "案發時申請人27 歲，中二程度，已婚，但與妻子離異。他任職散工，月入約9,000 元。他有4 次刑事紀錄，其中一項為販運危險藥物罪，被判往教導所。" } }, { "doc_id": 172, "seg_id": 13, "translation": { "en": "By way of mitigation, it was submitted that the Applicant was heavily in debt by reason of gambling and the need to pay for his late grandmother’s burial expenses. He was used by others to traffic in dangerous drugs, with a reward of $1,000 each time. It was the second time he trafficked in dangerous drugs for others when he was arrested. He said that he felt remorseful after his arrest, and he cooperated with the police and frankly admitted the offences. His former employer also asked for clemency on his behalf.", "zh-HK": "辯方求情陳詞表示申請人因賭錢及支付祖母的殮葬費而欠債纍纍，被他人利用販運毒品，每次報酬是1,000 元。被捕時申請人是第二次替他人運毒。申請人表示被捕後感後悔，並與警方合作、坦白承認控罪。申請人的舊僱主亦為申請人求情。" } }, { "doc_id": 172, "seg_id": 14, "translation": { "en": "Ground of appeal", "zh-HK": "上訴理由" } }, { "doc_id": 172, "seg_id": 15, "translation": { "en": "The ground of appeal advanced by Ms Cecilica To, Counsel for the Applicant was that the starting point for Charge 2 was too high, with the starting point of 19 years and 9 months’ imprisonment being manifestly excessive.", "zh-HK": "申請人代表杜‍妍‍芳大律師的上訴理由是控罪‍二的量刑基準過高，19 年9 個月此判刑起點是明顯過重。" } }, { "doc_id": 172, "seg_id": 16, "translation": { "en": "Discussion", "zh-HK": "討論" } }, { "doc_id": 172, "seg_id": 17, "translation": { "en": "The Applicant’s main argument was directed at HKSAR v Sin Chung Kin and another [2013] 1 HKLRD 622, a case on which the Judge relied in sentencing. In that case, the comment made by the Court of Appeal that the starting points for trafficking in 2,000 g to (sic) 3,000 g of ketamine should not be lower than imprisonment for 18 years and 20 years was mere obiter and did not constitute any sentencing guideline.", "zh-HK": "上訴一方主要的論據是原審法官依據的案例香港特別行政區訴單松健及另一人 [2013] 1 HKLRD 622判刑，但上訴庭在該案指出販運2,000至3,000 克氯胺酮的判刑起點應不少於18 年及20 年監禁，並非判刑指引，而是非具約束力的附帶意見 (obiter)。" } }, { "doc_id": 172, "seg_id": 18, "translation": { "en": "The Applicant contended that Sin Chung Kin involved 5,120 g of ketamine, which was far more than the 2,890 g involved in the present case, but the Court of Appeal in that case did not interfere with the 22 years’ imprisonment imposed by the trial judge. The Applicant complained that, given the substantial difference between the quantity of drugs involved in Sin Chung Kin and that in the present case, the term of 19 years and 9 months imposed on the Applicant, which was merely 2 years and 3 months less than the term of 22 years in Sin Chung Kin, was unreasonable.", "zh-HK": "上訴一方亦指單松健 一案涉及的氯胺酮為5,120 克，遠較本案的2,890 克為多，但上訴庭並無干預原審法官判處的22 年監禁。上訴一方認為申請人的19 年9 個月判刑，祇是較該22 年少了2 年3 個月，和兩宗案件毒品份量的差距相比，於理不合。" } }, { "doc_id": 172, "seg_id": 19, "translation": { "en": "The Applicant also referred to a few High Court cases in support of his contention that the starting point adopted in the present case was at variance with other similar cases. It was argued that according to the principle laid down in HKSAR v Leung Wai Man (unreported, CACC 24/2007, 7 December 2009), there should be consistency in sentences imposed in cases of the same type.", "zh-HK": "上訴一方另引用若干高等法院案件，藉以顯示本案的量刑起點有異於其他相類似案件。上訴一方指根據HKSAR v Leung Wai Man (梁偉民)，(未經彙報，CACC 24/2007，2009 年12 月7 日) 訂下的原則，同類案件的判刑應是一致的。" } }, { "doc_id": 172, "seg_id": 20, "translation": { "en": "In Sin Chung Kin, two defendants admitted to trafficking in ketamine and cocaine of total quantities of 5.12 kg and 18.8 g respectively. The two of them were also involved in the possession of cocaine. For trafficking in such a large quantity of ketamine, Yeung CJHC (Ag) (as he then was) had the following to say in his Reasons for Judgment:", "zh-HK": "單松健 一案涉及兩名被告人，他們承認販運氯胺酮及可卡因，氯胺酮的總量是5.12 公斤，可卡因則為18.8 克。兩人亦涉及管有可卡因。就販運如此大量的氯胺酮，高等法院署理首席法官楊‍振‍權 (當時官階) 在頒發判案理由書時如此說：" } }, { "doc_id": 172, "seg_id": 21, "translation": { "en": "“21.Ketamine is highly toxic and extremely hazardous to the human body. Since 2005 there has been a sharp increase in the quantities of ketamine seized by the police, and ketamine has become the most widely abused drug among youngsters aged below 21. In S for J v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal, having received relevant expert evidence, acknowledged the above situation and, on that basis, went on to revise the sentencing guidelines for trafficking in ketamine.", "zh-HK": "「21．氯胺酮毒性嚴重，對人體造成極大的遺害。自2005年起警方檢獲的氯胺酮數量激增，而氯胺酮更成為21 歲以下青年最普遍濫用的毒品。上述情況是上訴法庭在S for J v Hii Siew Cheng [2009] 1 HKLRD 1案經過聆聽專家證供後所確認的。上訴法庭更因此重訂非法販運氯胺酮的量刑基準。" } }, { "doc_id": 172, "seg_id": 22, "translation": { "en": "22. The revised guidelines are as follows:", "zh-HK": "22．該重訂的量刑基準如下：" } }, { "doc_id": 172, "seg_id": 23, "translation": { "en": "23. Where large quantities of ketamine are involved, although it is not possible to enhance the starting points proportionally, a reasonable and logical approach must be that, the larger the quantity of the drug is, the more severe the sentence will be.", "zh-HK": "23．雖然涉及大量氯胺酮，量刑基準不可能按比例遞升，但毒品份量越大，則判刑越重，必然是合理及合邏輯的處理方法。" } }, { "doc_id": 172, "seg_id": 24, "translation": { "en": "24. The starting points for trafficking in dangerous drugs are determined according to the quantities of the drugs involved. For trafficking in large quantities of dangerous drugs, the “tariffs” laid down by the Court of Appeal have never exceeded 20 years’ imprisonment. In the case of trafficking in heroin, 400 g attracts 15 years’ imprisonment and 600 g 20 years’ imprisonment (see R v Lau Tak-ming & Others [1990] 2 HKLR 370). In the case of trafficking in “ice”, a quantity between 300 g and 600 g attracts 14 to 18 years’ imprisonment (see AG v Ching Kwok-hung [1991] 2 HKLR 125). According to these authorities, when the quantity of the heroin in question is increased by 50% from 400 g to 600 g, the starting point will increase from 15 years to 20 years; and when the “ice” in question is doubled from 300 g to 600 g, the starting point will go up from 14 years to 18 years.", "zh-HK": "24．非法販運毒品的量刑基準是根據毒品的份量而定，而上訴法庭就販運大量毒品罪行作出的量刑指引止於20 年。以販運海洛英而言，400克可導致15年監禁，而600克可導 [致] 20 年監禁 (見R v Lau Tak-ming & Others [1990] 2 HKLR 370案)；就販運“冰”毒而言，300克至600克可導 [致] 14至18年監禁 (見AG v Ching Kwok-hung [1991] 2 HKLR 125案)。根據上述案例，販運海洛英的份量由400克遞增50% 至600克時，量刑基準會由15年增加至20年，販運“冰”毒的份量由300克遞增一倍至600 克時，則量刑基準會由14年增加至18年。" } }, { "doc_id": 172, "seg_id": 25, "translation": { "en": "25. The maximum sentence for trafficking in a dangerous drug is life imprisonment. When the quantity of the heroin or “ice” involved is so large that it is measured by the kilogramme, the starting point may well go far beyond 20 years and may even reach 30 years or more.”", "zh-HK": "25．非法販運毒品的最高判刑是終身監禁，而當販運海 [洛] 英或“冰”毒的份量是數以公斤計時，則量刑基準可以遠超過20年，甚 [至] 達30年或以上。」" } }, { "doc_id": 172, "seg_id": 26, "translation": { "en": "The Court of Appeal did not revise the sentencing guidelines in Sin Chung Kin. It was only because of the lack of further elaboration in Hii Siew Cheng on the appropriate starting point for trafficking in over 1,000 g of ketamine that the Court of Appeal, having considered the rates of enhancement of starting points for trafficking in large quantities of other dangerous drugs (such as heroin and “ice”), made the observation that the appropriate starting points for trafficking in 2,000 g and 3,000 g of ketamine should, respectively, be no less than 18 years and 20 years.", "zh-HK": "上訴庭並無在單松健 一案重新訂下判刑指引。上訴庭祇是基於許守城 一案就販運超過1,000 克氯胺酮的恰當量刑起點無進一步說明，在考慮了販運大量其他危險藥物 (如海洛英及冰毒) 的量刑刑期增幅比例後，達致販運2,000 克及3,000 克氯胺酮的恰當量刑基準應不低於18 年及20 年此論點。" } }, { "doc_id": 172, "seg_id": 27, "translation": { "en": "The above analysis is, with respect, correct.", "zh-HK": "本庭認為上述分晰正確。" } }, { "doc_id": 172, "seg_id": 28, "translation": { "en": "Furthermore, in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, when revising the appropriate sentencing guidelines for trafficking in large quantities of heroin, the Court of Appeal said:", "zh-HK": "再者，上訴庭在HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437，就販運大量海洛英重新訂下恰當的判刑指引時說：" } }, { "doc_id": 172, "seg_id": 29, "translation": { "en": "“36. In a submission with which we agree, Mr Zervos stated that it was important, at this level of trafficking, that there should be a meaningful distinction between traffickers who deal in 600 grammes of heroin and those who are caught trafficking in twice that quantity. Equally, a distinction needs to be drawn between those whose offences are aggravated for the purposes of sentence by other factors which call for an enhancement of sentence and those who have no aggravating circumstances to be taken into account against them.”", "zh-HK": "“36.In a submission with which we agree, Mr Zervos stated that it was important, at this level of trafficking, that there should be a meaningful distinction between traffickers who deal in 600 grammes of heroin and those who are caught trafficking in twice that quantity.  Equally, a distinction needs to be drawn between those whose offences are aggravated for the purposes of sentence by other factors which call for an enhancement of sentence and those who have no aggravating circumstances to be taken into account against them.”" } }, { "doc_id": 172, "seg_id": 30, "translation": { "en": "The Court of Appeal took the view that when heroin traffickers were to be sentenced, there should be a meaningful distinction between the sentence for trafficking in only 600 g of heroin and that for trafficking in twice that quantity. A distinction should also be drawn between the sentence where there were aggravating factors and the sentence where no aggravating factors were present.", "zh-HK": "上訴庭的意見是判處販運海洛英的毒販時，毒品份量是600 克雙倍時的判刑應該和毒品份量祇是600 克的判刑有顯著的分別。當有其他加刑因素時，判刑亦應與無加刑因素時有分別。" } }, { "doc_id": 172, "seg_id": 31, "translation": { "en": "In our view, the above principles are applicable to trafficking in large quantities of any dangerous drugs, including ketamine.", "zh-HK": "本庭認為上述原則適用於販運任何大量危險藥物，包括氯胺酮。" } }, { "doc_id": 172, "seg_id": 32, "translation": { "en": "The Applicant cited a number of High Court sentencing cases. Although the sentences in some of those cases were imposed after Sin Chung Kin, none of the judges in those cases referred to Sin Chung Kin and it seems that they were not aware of the judgment in Sin Chung Kin at the time. On the other hand, the “meaningful distinction” as stated in Abbas is not reflected in the sentences imposed in the following cases:", "zh-HK": "上訴一方引用多宗高等法院的判刑，雖然部分案件的判刑是在單松健 一案之後，但該等案件的原審法官均沒有提及單松健 一案，看來當時他們並不知悉有關單松健 的判辭。另一方面，下列案件的判刑亦無Abbas一案所提及的「顯著分別」：" } }, { "doc_id": 172, "seg_id": 33, "translation": { "en": "HKSAR v Chan Hon Lun (HCCC 13/2012) - for 2,670 g of ketamine, the starting point was 15 years;", "zh-HK": "HKSAR v Chan Hon Lun (HCCC 13/2012)—2,670 克氯胺酮，量刑基準15 年；" } }, { "doc_id": 172, "seg_id": 34, "translation": { "en": "HKSAR v Chan Peng Chun (HCCC 420/2011) - for 2,970.95 g of ketamine, the starting point was 16 years which was enhanced to 16½ years by reason of the defendant’s previous conviction record;", "zh-HK": "HKSAR v Chan Peng Chun (HCCC 420/2011)—2,970.95 克氯胺酮，量刑基準16 年，再因被告人有前科而提高至16½ 年；" } }, { "doc_id": 172, "seg_id": 35, "translation": { "en": "HKSAR v Yeung Tak Lung (HCCC 227/2012) - for 4,690 g of ketamine, the starting point was 16 years; and", "zh-HK": "HKSAR v Yeung Tak Lung (HCCC227/2012)—4,690 克氯胺酮，量刑基準16 年；及" } }, { "doc_id": 172, "seg_id": 36, "translation": { "en": "HKSAR v Ma Chi Hong (HCCC 1/2012) - for 6,160 g of ketamine, the starting point was 16 years.", "zh-HK": "HKSAR v Ma Chi Hong (HCCC 1/2012)—6,160 克氯胺酮，量刑基準16 年。" } }, { "doc_id": 172, "seg_id": 37, "translation": { "en": "The Applicant also cited the sentences imposed in two other High Court cases, which are more severe than those imposed in the above 4 cases. Although it can be said that there is a meaningful distinction between those starting points and that for trafficking in 1,000 g of ketamine, those two cases were determined before Sin Chung Kin and the judges dealing with those two cases did not have the opportunity to consider the reasoning of the court in Sin Chung Kin:", "zh-HK": "上訴一方另引用兩宗高等法院案件的判刑，該兩宗案件的判刑較上述4 宗為重。雖然量刑基準可說是與販運1,000 克有顯著分別，但該兩宗案件發生在單松健 之前，原審法官未有機會考慮單松健 一案的邏輯論據：" } }, { "doc_id": 172, "seg_id": 38, "translation": { "en": "HKSAR v So Lok Him (HCCC 109/2011) - for 3,250 g of ketamine, the starting point was 18 years; and", "zh-HK": "香港特別行政區訴蘇樂謙 (HCCC 109/2011)—3,250 克氯胺酮，量刑基準18 年；及" } }, { "doc_id": 172, "seg_id": 39, "translation": { "en": "HKSAR v Lee Chun Hung (HCCC 237/2011) - for 4,808.74 g of ketamine, the starting point was 19 years.", "zh-HK": "香港特別行政區訴李振鴻 (HCCC 237/2011)—4,808.74 克氯胺酮，量刑基準19 年。" } }, { "doc_id": 172, "seg_id": 40, "translation": { "en": "It is true that in HKSAR v Ng Siu Kam (unreported, CACC 474/2009, 2 September 2011), another case relied on by the Applicant, where the defendant conspired to traffic in 5,000 to 5,500 g of ketamine, the Court of Appeal considered a starting point of 16 years appropriate and, taking into account aggravating factors, eventually adopted 20 years’ imprisonment as the starting point. However, as the Court of Appeal pointed out in Sin Chung Kin:", "zh-HK": "誠然，在上訴一方引用的HKSAR v Ng Siu Kam (吳肇淦)，(未經彙報，CACC 474/2009，2011 年9 月2 日) 一案，被告人串謀販運5,000至5,500 克氯胺酮，上訴庭認為16 年量刑基準是合適的，另因案件涉及加刑因素，最終採納了20 年監禁為量刑基準，但正如上訴庭在單松健 一案指出：" } }, { "doc_id": 172, "seg_id": 41, "translation": { "en": "“26. … Ng Siu Kam concerned the offence of conspiracy to traffic in a dangerous drug and the quantity of the drug involved was merely an estimate. Furthermore, in that case the Court of Appeal did not explain clearly the rationale for passing the sentence that it did. Therefore, the case offers limited guidance.”", "zh-HK": "「26.…. Ng Siu Kam案涉及的是串謀販毒案，而涉案毒品的份量只是一個約數，而在該案，上訴法庭亦沒有說明量刑的邏輯基礎，故不具重要指導作用。」" } }, { "doc_id": 172, "seg_id": 42, "translation": { "en": "As Sin Chung Kin did not lay down any sentencing guideline but instead analysed and considered in detail the appropriate starting points, it was certainly open to the Judge to consider the reasoning in Sin Chung Kin even though the Applicant’s case arose before the Reasons for Judgment of Sin Chung Kin was handed down. Furthermore, even if the Court of Appeal had laid down sentencing guidelines which had no retrospective effect, the court would still be entitled to refer to those guidelines for the purpose of making a comparison (see HKSAR v Mohamed Omar Ally (unreported, CACC 407/2008, 23 June 2009, para. 13) and HKSAR v Chan On Ming (unreported, CACC 44/2009, 31 August 2010, para. 20).", "zh-HK": "既然單松健 一案並非訂下判刑指引，而是就恰當的量刑基準作出詳細分析、考慮，雖則申請人的案件發生在單松健 案例頒發判案理由書之前，原審法官當然可考慮單松健 一案的論據。再者，即使上訴庭頒下判刑指引，而新指引是無追溯性的，法庭仍可使用新指引作一比較 (見HKSAR v Mohamed Omar Ally (未經彙報，CACC 407/2008，2009 年6 月23 日，第13 段) 及香港特別行政區訴陳安明 (未經彙報，CACC 44/2009，2010 年8 月31 日，第20 段)。" } }, { "doc_id": 172, "seg_id": 43, "translation": { "en": "The fact that individual defendants have been dealt with leniently by the court does not mean that the starting point of 19 years and 9 months imposed on the Applicant in the present case must necessarily be manifestly excessive. What we have to determine is whether, in light of the circumstances of the case and the Applicant’s background, the starting point is manifestly on the high side.", "zh-HK": "個別被告人獲法庭寬大處理並不代表本案的19 年9 個月量刑起點必屬明顯過重。本庭考慮的是以本案的案情及申請人的背景而言，此量刑基準是否明顯過高。" } }, { "doc_id": 172, "seg_id": 44, "translation": { "en": "After consideration, we have taken the view that the starting point of 19 years and 9 months adopted by the Judge is neither wrong in principle nor manifestly excessive.", "zh-HK": "本庭經考慮後，認為原審法官的量刑基準無犯上任何原則性錯誤，而19 年9 個月此量刑起點亦非明顯過高。" } }, { "doc_id": 172, "seg_id": 45, "translation": { "en": "In respect of Charge 1, namely possession of 1.49 g of ketamine, the Judge adopted 9 months’ imprisonment as the starting point and imposed a sentence of 6 months’ imprisonment after giving the one-third discount for the Applicant’s guilty plea. There is nothing improper with this sentence, with which the Applicant has in fact not taken issue. However, in our judgment, had Charge 1 also been for trafficking in a dangerous drug, the drugs involved in the two charges would, on the facts of the present case, have been considered together, and the appropriate starting point for trafficking in 2,891.49 g of ketamine would still have been 19 years and 9 months. This being the case, although trafficking in a dangerous drug and possession of a dangerous drug are different in nature and generally their sentences should not be made entirely concurrent, we have, on the facts of the present case, taken the view that the whole term of 6 months in respect of Charge 1 should run concurrently with the 13 years and 2 months in respect of Charge 2, making a total term of 13 years and 2 months.", "zh-HK": "原審法官就控罪‍一，即管有1.49 克氯胺酮，採納9 個月為量刑基準，給予1/3認罪扣減後判刑6 個月，此判刑並無不當，申請人亦無異議。唯本庭在考慮到若申請人就控罪‍一是同樣被控販運危險藥物罪，以本案的案情，兩項控罪涉及的危險藥物會一併考慮，而2,891.49 克氯胺酮的恰當量刑基準仍是19 年9 個月。在此情況下，雖然販運危險藥物與管有危險藥物的性質不同，一般而言，不應將刑期全部同期執行，但以本案的案情，本庭認為控罪‍一的6 個月監禁應與控罪‍二的13 年2 個月全部同期執行，故總刑期是13 年2 個月。" } }, { "doc_id": 172, "seg_id": 46, "translation": { "en": "Ms Samantha Chiu, Senior Public Prosecutor of the Department of Justice, for the HKSAR (Respondent).", "zh-HK": "答辯人：由律政司高級檢控官招秉茵代表香港特別行政區" } }, { "doc_id": 172, "seg_id": 47, "translation": { "en": "Ms Cecilica To, instructed by Messrs. Wong, Kwan & Co., for the Applicant.", "zh-HK": "申請人：由黃東強關獻機律師行轉聘杜妍芳大律師代表" } } ]