Hon Yeung JA (giving the judgment of the Court):
上訴法庭法官楊振權頒發上訴法庭判案書：

Introduction
引言

There were three defendants in the present case, namely, Lau Kim-hung (“Lau”), Chu An-bin (“Chu”) and the Applicant, Fung Hin-wah Edward.
本案原有三名被告人，即劉劍雄（“劉”）、朱晏賓（“朱”）、及申請人馮顯樺。

Lau and Chu were charged with “conspiracy to offer advantages to a public servant” (the Applicant) in return for the Applicant’s providing prior warning of police impending action to them, “Ah Chun” and “Yiu Gor”, thereby enabling them to avoid culpability.
劉和朱被控串謀向一名公職人員（申請人）提供利益，以換取申請人向他們和“阿俊”及“耀哥”預先提供警方行動的資料，令他們能逃避罪責。

The Applicant was charged with “misconduct in public office” by giving advice in relation to unlawful dangerous drugs and vice activities to Lau, Chu, “Ah Chun” and “Yiu Gor”.
申請人則被控藉公職作出不當行為，即就非法毒品及色情活動向劉、朱、“阿俊”及“耀哥”提供竟見。

Lau, Chu and the Applicant all pleaded not guilty to the charges and their trial came before Deputy District Judge J. Lam.
劉、朱和申請人都否認控罪，並在區域法院暫委法官林偉權席前受審。

Before the commencement of the trial, the Applicant asked to be tried separately from Lau and Chu.  But his application was refused by Deputy District Judge Lam.
開審前，申請人要求和劉及朱分開審訊，但林法官拒絕該要求。

During the trial, the Applicant, Lau and Chu all applied for a permanent stay of the trial and for the exclusion of the evidence alleged to be the conversations between them and “Ah Chun” and “Yiu Gor”, who were both undercover officers of the Independent Commission Against Corruption (“ICAC”).  Their applications were also refused by Deputy District Judge Lam.  Subsequently, Lau and Chu reversed their pleas to ones of guilty, whereas the Applicant maintained his plea of not guilty.
審訊期間，申請人、劉和朱都申請永久擱置審訊及摒棄案中指他們和廉政公署（“廉署”）卧底人員“阿俊”及“耀哥”的對話為證供。林法官亦否決了他們的申請。其後，劉和朱改為認罪，但申請人維持不認罪之立場。

The Applicant was convicted after trial and sentenced to 6 months’ imprisonment.  He was aggrieved with the conviction and now applies for leave to appeal against conviction.
經審訊後，申請人亦被裁定罪名成立及被判入獄6個月。申請人不服定罪，現提出上訴許可申請要求獲准就定罪上訴。

Prosecution’s Allegations and Evidence
控方指控及證據

The Applicant was a serving police sergeant and had been attached to Special Duties Squad 3 of Mong Kok District between January 2006 and March 2007.
申請人是一名警長，在2006年1月至2007年3月期間，駐守旺角警區特別職務隊第3隊。

In early 2007 the ICAC was informed that a police officer provided protection to criminals by providing prior warning of police impending action to them, and an “undercover” investigator (“Ah Chun”) was thus assigned to make investigation.  Lau was the only target person of the ICAC at that time.
2007年初廉署接獲資料指有警員包庇罪犯，向他們預告警方行動，故派出一調查主任（“阿俊”）以“卧底” 身份負責調查。當時劉是廉署的唯一目標人物。

On 15 February 2007, “Ah Chun” was introduced to Lau, and through Lau he came to know Chu.  Chu claimed to “Ah Chun” that he was engaged in trafficking in dangerous drugs and that his dangerous drugs activities had been under the protection of a police officer nicknamed “Wah Gor”.  “Ah Chun” falsely claimed to Lau and Chu that his boss would like to set up a private club involving dangerous drugs and vice activities.  Chu indicated to “Ah Chun” that (they) would have to offer advantages to “Wah Gor” in return for his protection.
2007年2月15日，“阿俊”經人介紹認識劉，並透過他認識朱。朱向“阿俊”承認自己曾販毒，更獲一名綽號“華哥”的警務人員包庇。“阿俊”向劉和朱假稱其老闆希望開設一毒品及賣淫會所後，朱向他表示要向“華哥”提供利益以取得其保護。

“Ah Chun” introduced another ICAC “undercover officer”, “Yiu Gor”, posing as his boss, to Lau and they had a site visit at a place intended to be used for running the unlawful club.  It was agreed by both parties that Lau would be responsible for the interior decoration of the club and he would waive the decoration fee in return for some shares of the club.
“阿俊”介紹假扮為其老闆的另一廉署“卧底”“耀哥”給劉認識，並相約前往視察一打算作為非法會所的地點。雙方同意由劉負責裝修會所，費用免付，但會用作換取會所股權的代價。

On 5 June 2007, “Ah Chun” met Lau and Chu.  During the meeting, Lau suggested that he would transfer his portion of shares of the club to Chu, who would supply dangerous drugs to the club.  They also indicated that they would transfer a portion of their shares to “Wah Gor” who, in return, would provide protection, namely, by providing prior warning of impending police enforcement action against the club to them. Chu further suggested that the shares should be transferred to “Wah Gor” through the wife and relatives of “Wah Gor” in order to cover up their dealings.
2007年6月5日，“阿俊”和劉及朱會面。劉建議將其應佔的股權轉給朱，而朱則會向會所提供毒品。他們同時表示會將股權轉給“華哥”以換取“華哥”的保護，即在警方向會所採取行動前，向他們預先警告。朱更建議將股權轉到“華哥”的妻子及親屬名下，作為掩飾。

On 22 June 2007, “Ah Chun” and “Yiu Gor” met Lau, Chu and the Applicant at Victoria City Seafood Restaurant.  When the Applicant came to know about the plan for setting up an unlawful club which would involve the supply of dangerous drugs and hostess services, he gave “Ah Chun” and “Yiu Gor” some advice for the purpose of avoiding or mitigating any harm or inconvenience that would be caused to the unlawful club by police actions.
2007年6月22日，“阿俊”、“耀哥”和劉、朱及申請人在海都酒家會面。當申請人知悉有關開設提供毒品及女士服務的非法會所時，向“阿俊”和“耀哥”提出一些建議，以避免或減輕警方行動對非法會所做成的不利或不便。

On 5 July 2007, Lau and the Applicant accompanied “Ah Chun” and “Yiu Gor” to attend a site visit at a place intended to be used for operating the club.  The Applicant gave further advice for the purpose of mitigating the risk arising from operating an unlawful establishment with dangerous drugs and vice activities.
2007年7月5日，劉和申請人陪同“阿俊”及“耀哥”視察打算用作會所的場地時，申請人再作出一些建議，以減輕經營非法毒品和賣淫場所會導致的風險。

During an interview with ICAC investigators after his arrest, the Applicant admitted to having attended the above two meetings.
被捕後，申請人和廉署調查員會面時承認曾出席過上述兩次會面。

In fact, both meetings in which the Applicant had participated had been audio-taped by the undercover ICAC officers, and the meeting at Victoria City Seafood Restaurant had been video-taped as well.  The contents of the audio/video recordings were consistent with the evidence of the undercover ICAC officers.  The defence did not allege that the contents of the audio recordings were unreliable or likely to cause misunderstanding.
事實上申請人有份參與的兩次會面都有卧底廉署人員錄音，而在海都酒家的會面更有錄影。錄音/錄影記錄的內容和卧底廉署人員的證供吻合。辯方亦沒有指錄音記錄的內容是不可靠或會令人產生誤解的。

According to the audio/video recordings of the meeting at Victoria City Seafood Restaurant on 22 June 2007 (P11 and P13), Lau, Chu, the Applicant, “Ah Chun” and “Yiu Gor” showed up together and remained in a room at the restaurant for nearly 3 hours.
根據2007年6月22日海都酒家的會面錄音/錄影記錄（P11和P13），劉、朱、申請人、“阿俊”和“耀哥”一起出現及逗留在酒家房間的時間近3小時。

It is not necessary for this Court to repeat what each individual said and did during the meeting.  But the Applicant was certainly aware of matters such as that “Ah Chun” and his boss, “Yiu Gor”, intended to set up a club where dangerous drugs and prostitutes would be supplied.  The Applicant not only explained to “Ah Chun” and “Yiu Gor” what actions the police would take against clubs of the same kind, he also gave them some advice for the purpose of avoiding and mitigating the difficulties that might be faced by the unlawful club.  The Applicant also mentioned about certain matters relating to the business of the unlawful club, such as liquor licences, what incidents would cause the club to be ordered to close down, and in case anything happened to the club, how to handle the situation if there was no “bouncer” at the club.
本庭無需詳細複述各人在會面時的言行。但申請人必然知悉“阿俊”及其“老闆”“耀哥”打算開設會所，而會所會有毒品及妓女供應等事。申請人不但向“阿俊”及“耀哥”解釋警方會對同類會所採取的行動，亦提出一些建議，目的是避免或減輕非法會所可能面對的困難。申請人亦談及一些和非法會所業務有關的事項，包括酒牌，甚麼事件會導致會所被封場及如會所沒有人“睇場”，有事故發生時應如何處理。

Nevertheless, the Applicant made it clear that he did not know when police raids would be conducted, and that he could not offer any assistance in that kind of matter because police officers could not do so anymore.  The Applicant indicated that he did not want to get involved in complicated situations, nor did he wish to participate in the business (of the club).  But he agreed to have a look at the environment of the premises chosen to be the address of the club and to give some advice as a friend.
但申請人明確表示自己不知道警察會在甚麼時候進行掃蕩行動，而他亦不能在該事項幫忙，原因是警察已再不能這樣做。申請人表示不想捲入複雜情況，亦不願意參與業務，但同意幫眼看看會所選址環境及以朋友身份給些意見。

Subsequently, at the appointed time on 5 July 2007, the Applicant went together with “Ah Chun”, “Yiu Gor” and Lau to a flat in Hang Lung Mansion, the chosen address of the unlawful club as alleged by “Ah Chun” and “Yiu Gor”.  There was also an audio recording of this meeting as evidence (P17).
其後申請人應約和“阿俊”、“耀哥”及劉一起在2007年7月5日前往“阿俊”和“耀哥”聲稱非法會所位於恆隆商業大厦的選址。這次會面亦有錄音記錄為證（P17）。

The Applicant said there should not be any problem regarding the application for liquor licence for the chosen address.  When “Yiu Gor” asked him whether it was necessary to install a rear door to facilitate “girls” “to get away in the event of police raid”, the Applicant said that it was very difficult “to get away in the event of police raid”, and that if the unlawful establishment was decorated in a too conspicuous manner, it would all the more arouse suspicion of the police.  The Applicant suggested that CCTV should be installed at the unlawful club so that whoever got in and out of the club could be monitored, and it would be better for security purpose.  The Applicant also suggested that a notice board had to be put up in the unlawful club to remind customers not to take dangerous drugs.  The Applicant did ask whether or not “girls” or “prostitutes from the Mainland” would be made available in the unlawful club, but he indicated that he was not quite familiar with how to handle matters relating to prostitutes in unlawful clubs.  But he had also expressed some opinion on that issue as well as on how to handle the supply of dangerous drugs to the unlawful club.
申請人表示該選址出酒牌應該沒有問題。當耀哥問及是否要安裝後門方便“女仔”“走鬼”時，申請人表示“走鬼”很難，而如果非法場所弄得太礙眼，更會令警方懷疑。申請人建議非法會所應安裝CCTV，以便看到誰人進出，對保安較佳。申請人亦建議非法會所內要安裝告示牌，警告客人不要吸毒。申請人有查問過非法會所是否會有“女仔”、“北姑”，但表示對如何處理妓女在非法會所之事不太熟識，但他對該問題和如何處理供應會所毒品問題亦表達了一些意見。

The Applicant lastly said he had not given any assistance to “Yiu Gor”, that he only made those remarks casually, and that what he had said might be incorrect.
申請人最後有說過他並沒有給“耀哥”任何幫助，他只是隨口說說，所說的亦非一定是對的。

The Applicant’s Defence and Evidence
申請人的答辯理由及證據

The Applicant did not give evidence in court.  But he had called his wife and a retired police sergeant to give evidence for him.
申請人沒有作供自辯，但有傳召其太太及另一退休警長替他作供。

The case of the Applicant was that during the two meetings he only expressed some ideas in terms of words and behaviour, which did not amount to actual crime, and that the opinion expressed by him was common knowledge.
申請人的立場是他在兩次會面時只是言行上一些表述，並無實質的犯罪行為，而他表達的意見亦是一般常識。

The defence maintained that given the post of the Applicant, he could not offer any assistance to “Ah Chun” and “Yiu Gor”.  Therefore, his words and conduct did not constitute serious misconduct.
辯方力稱以申請人的職位，他不能向“阿俊”和“耀哥”提供任何協助，故他的有關言行不構成嚴重的不檢行為。

When the Applicant’s wife gave evidence in court, she said the Applicant was eager to help others, and he would from time to time answer some legal questions raised by friends and relatives.  According to the retired police sergeant who gave evidence for the Applicant, the Applicant was an honest and reliable person who would not disclose any confidential information of his work.  The retired police sergeant said sometimes it was necessary for police officers to contact informers in order to obtain intelligence.
申請人的太太作供時表示申請人喜歡幫助別人，亦會不時為親友解答法律問題。為申請人作供的退休警長則表示申請人誠實可靠，亦不會泄露其工作秘密。該名退休警長表示，警務人員有時須要和線人接觸以獲取情報。

The Trial Judge’s Verdict
原審法官的裁定

The trial judge refused to deal with the Applicant in a trial separately from Lau and Chu and also refused to grant a permanent stay of the proceedings or to exclude the evidence against the Applicant.  The trial judge took the view that “Ah Chun” and “Yiu Gor” did not arrest the Applicant by entrapment, nor was the way they conducted the investigation so repulsive that it amounted to an affront to the public conscience.
原審法官拒絕將申請人和劉及朱分案處理，亦拒絕擱置聆訊或剔除針對申請人的證據。原審法官認為“阿俊”和“耀哥”並沒有誘捕申請人，而他們的調查手法亦不會令人反感或引起公憤。

In respect of the charge against the Applicant, Deputy District Judge Lam stated clearly and unequivocally that he only gave weight to the conversation records relating to the two occasions in which the Applicant had participated, namely, P11, P13 and P17 and the relevant transcripts, namely P12 and P18.
就針對申請人的控罪，林法官開宗明義地說明，他只重視申請人有份參與的兩次對話的記錄，即P11、P13和P17及相關謄本即P12和P18。

Based on the authorities including Shum Kwok Sher [2002] 5 HKCFAR 381, Sin Kam Wah [2005] 8 HKCFAR 192 and Wong Kwong Shun Paul [2009] 4 HKLRD 832, the trial judge set out five elements involved in the offence of misconduct in public office.  After having carefully analyzed the Applicant’s words and conduct during the relevant meetings, the trial judge concluded that the Applicant’s words and conduct matched with the five elements, and therefore the Applicant did commit misconduct in public office.
原審法官根據案例，包括岑國社案[2002] 5 HKCFAR 381，冼錦華案[2005] 8 HKCFAR 192 及黃廣信案[2009] 4 HKLRD 832，列出藉公職作出不當行為罪行所涉及的五項元素。原審法官有極詳細分析申請人在有關會面時的言行。原審法官裁定申請人的言行和該五項元素吻合，故申請人確有藉公職作出不當行為。

Grounds of Appeal
上訴理由

A number of grounds of appeal have been advanced by Mr. S. K. Khattak, counsel for the Applicant.  Mr. Khattak submitted that the trial judge should not have heard the trial of the charge against the Applicant and the trial of the charge against Lau and Chu together.  Mr. Khattak argued that the joint trial had caused grave prejudice to the Applicant and had deprived him of a fair trial.
代表申請人的林沙文大律師提出多項上訴理由。林大律師指原審法官不應將針對申請人的控罪和針對劉及朱的控罪一併審理。林大律師指一併審訊的做法對申請人做成極大損害，令他不能獲得公平審訊。

Mr. Khattak maintained that before the Applicant had any involvement in the incidents, “Ah Chun” had already made contact with Lau and Chu on a number of occasions, and during those occasions, they had talked about the Applicant and the contents of those conversations were extremely unfavourable to the Applicant.  Therefore, the trial judge should have dealt with the Applicant in a trial separately from Lau and Chu.  Mr. Khattak stressed that the charge faced by the Applicant was different from that faced by Lau and Chu; while the prosecution further alleged that Lau and Chu were the persons who unlawfully offered advantages to the Applicant, the Applicant was unable to instantly give a reply or raise a defence to those allegations.  Further, Lau and Chu even pleaded guilty to the charge, which showed that they agreed that they had indeed offered advantages to the Applicant.  Mr. Khattak also submitted that the joint trial had deprived the Applicant of the opportunity to call Lau and Chu to give evidence for him.
林大律師力稱在申請人還沒有參與事件前，“阿俊”已有和劉及朱多番接觸，而接觸時，他們都有談及申請人，內容更對申請人極為不利。因此原審法官理應將申請人和劉及朱分案處理。林大律師強調申請人和劉及朱面對不同的控罪，而控方更指劉和朱是向申請人非法提供利益的人，但申請人卻無法即時就該些指控作出回應或答辯。更甚者，劉和朱更承認控罪，顯示他們同意確有向申請人提供利益。林大律師亦指同案審理令申請人喪失了傳召劉及朱替他作供的機會。

Mr. Khattak emphasized that the evidence in support of the charge was obtained by entrapment and excessive use of leading questions by the investigating officers, in breach of the freedom of speech empowered by the Basic Law and the Bill of Rights.  Therefore, the trial judge should not have refused to stay the trial or to exclude the evidence against the Applicant.  Mr. Khattak maintained that the degree of entrapment in the present case was an extremely serious one, which was sufficient for the court to stay the trial or to exclude the evidence unfavourable to the Applicant.  Mr. Khattak had cited various authorities including judgments given by the British courts, the European Court of Human Rights and the Hong Kong courts in support of his argument.  The cases most particularly relied upon by Mr. Khattak include Teixeira de Castro v Portugal [1998] 28 EHRR 101 and R v Loosely [2001] 4 All ER 897.  Mr. Khattak submitted that the investigative means adopted by “Ah Chun” and “Yiu Gor” was identical to the one adopted by the two police officers in Teixeira de Castro, and thus it should be reproached as well.
林大律師強調支持控罪的證據是透過誘捕及調查人員過份使用帶引問話而取得，亦違反了《基本法》及《人權法》所賦予的言論自由，故原審法官不應拒絕擱置審訊或拒絕將針對申請人的證據摒棄。林大律師力稱本案的誘捕程度極之嚴重，足以令法庭擱置審訊或剔除對申請人不利的證據。林大律師援引各宗案例，包括英國法庭，歐洲人權法庭及本港法庭的判決支持其立場。林大律師特別依賴的案件包括Tei xeira de castro v Portugal [1998] 28 EHRR 101和 R v Loosely [2001] 4 All ER 897。林大律師指“阿俊”和“耀哥”的查案手法，和Tei xeira de castro案的兩名警察的查案手法相同，故亦需同受譴責。

In his 114-page long written submission, Mr. Khattak stressed that during the first meeting, the ICAC officers took the initiative to provide whisky to the Applicant and create a “drinking” ambience.  In the opinion of Mr. Khattak, the approach adopted by the ICAC officers was inappropriate, and seriously undermined the Applicant’s right of silence, namely, the right to make a statement voluntarily and the right of freedom of speech.  Mr. Khattak maintained that there was nothing to show that the Applicant was predisposed to commit the offence of offering protection on criminal activities; and instead, the Applicant was simply making some improper remarks under the influence of alcohol.
在其長達114頁的書面陳述，林大律師強調在第一次會面時，廉署人員主動向申請人提供威士紀酒，亦營做“飲杯”的氣氛。林大律師認為廉署人員的做法不恰當，更嚴重破壞了申請人的緘默權，即自願作供及言論自由之權利。林大律師力稱申請人沒有表現包庇罪行的傾向而只是在酒精影響下作出一些不太恰當的言論。

Mr. Khattak emphasized that the Applicant’s words and conduct during the two meetings did not match with the necessary elements of the offence of misconduct in public office, and that the trial judge also failed to give proper weight to the exculpatory parts of the Applicant’s words and conduct.  Mr. Khattak maintained that even if the Applicant’s words and conduct were improper, they were not too serious.  In respect of the above issue, Mr. Khattak in his written submission had set out in detail the testimonies and contents of the audio recordings of the relevant witnesses.  Mr. Khattak submitted that the misconduct done by the Applicant was not intentional.  Further, the Applicant’s misconduct was not serious and he had a reasonable excuse, therefore the court should not have found him guilty.
林大律師強調申請人在兩次會面的言行並不符合藉公職作出不當行為控罪所需的犯罪元素，而原審法官亦沒有將申請人言行之脫罪部份給予應得之比重。林大律師力稱申請人的言行，即使不當，但亦非太嚴重。就上述議題，林大律師在其書面陳述詳細列出有關證人的證言及錄音內容。林大律師指申請人並非蓄意作出不當行為，加上他的不當行為並非嚴重而他亦有合理辯解理由，故法庭不應裁定他罪名成立。

In addition to the above grounds of appeal, Mr. Khattak also submitted that not only were the investigative means adopted by the ICAC officers in breach of the Independent Commission Against Corruption Ordinance (“ICAC Ordinance”), the course of investigation was also an abuse of process, being sufficient to amount to an affront to the public conscience.  Mr. Khattak argued that since “Ah Chun” and “Yiu Gor” were the ones who offered advantages to Lau and Chu to induce the Applicant, the investigative means adopted by the ICAC and the course of the investigation would amount to an affront to the public conscience.
除了上述的上訴理由外，林大律師更指廉署人員在本案的調查手法不但違反廉署條例，其調查過程更是濫用程序及足以引起公憤。林大律師指“阿俊”和“耀哥”是提供利益給劉及朱去引誘申請人，故廉署的調查手法及過程會引起公憤。

It was submitted by Mr. Khattak that according to the ICAC Ordinance, only when ICAC officers made discovery in the course of investigating offences under the Prevention of Bribery Ordinance or Election (Corrupt and Illegal Conduct) Ordinance in connection with those offences, could they continue to follow up the matters and take actions.  Mr. Khattak asserted that the ICAC, “in defiance of the law”, conducted the investigations at all costs while knowing full well that the case under investigation was not connected to corruption, and that there was insufficient evidence to prove that the Applicant had committed any offence.  Mr. Khattak further stated that this problem must be addressed in a serious manner, otherwise once this precedent was allowed, ICAC officers could make use of whatever means to investigate any suspected offence.
林大律師指根據廉署條例，廉署人員在調查和《防止賄賂條例》或《選舉（舞幣及非法行為）條例》發現和該些罪行有關時，才可繼續跟進及採取行動。林大律師力指廉署“有法不依”，明知調查案件與貪污無關，亦沒有足夠證據證明申請人犯有任何罪行，卻依然不顧一切進行調查。林大律師更指這問題必需嚴厲正視，否則先例一開，廉署人員便可以運用任何手法去調查任何可疑罪行。

In the early paragraphs of his written submission, Mr. Khattak also set out in detail the Applicant’s background and the commendations and meritorious awards which the Applicant had received while serving in the Police Force.
林大律師在其書面陳述的初段，更將申請人的背景及他在警隊時獲得之讚賞及功勳詳細列出。

Discussion
討論

Joint Trial
同案審理

Where there are more than one defendant and each of them faces individual charges, the court has a discretion to decide whether they should be tried together.  Sachs J at page 261 (line B-C) of the judgment of Assim [1996] 2 QB 249 had this to say:
法庭有酌情權決定多過一名被告人面對不同控罪時應否同案審理。Sachs J法官在Assim [1996] 2 QB 249案的判案書第261頁B-C行有以下詳論：

“Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of courts (sic) in one indictment and can, subject always to the discretion of the court, be tried together.”
“當構成針對多名被告人的個別罪行之可利用證據在時間上或與其他因素是有關連的情況下，而將他們同案審理是符合司法公正時，將他們根據同一公訴書一起審理是恰當的。但應否這樣做，要由法官根據其酌情權作出。”

At page 573 of the judgment of Ludlow v Metropolitan Police Commissioner [1970] 1 All ER 567, their Lordships also stated clearly that:
在Ludlow v Metropolitan Police Commissioner [1970] 1 All ER 567案判案書573頁，大法官亦表明：

“…the proper conclusion to be drawn from the judgments as a whole is that the law and the facts have been and should be taken into account in deciding whether offences are similar or dissimilar in character.”
“…根據整體案例得出的適當結論是考慮不同罪行是否性質相似時，事實和法律都必須考慮在內。”

It is a matter for the discretion of the court to decide, where there are more than one defendant and each of them faces individual charges, whether they should be tried together.  An appeal based on the ground of an erroneous exercise of such discretionary power stands very little chance of success.
決定多過一名被告人面對不同控罪時應否同案審理屬酌情權的決定，以錯誤行使酌情權作為上訴理由，成功機會不大。

In the present case, “Ah Chun” and “Yiu Gor” came into contact with the Applicant successfully through Lau and Chu, as a result of which there were two meetings (on 22 June 2007 and 5 July 2007 respectively) between them and the Applicant.
在本案“阿俊”和“耀哥”是透過劉和朱才能成功接觸到申請人，導致他們和申請人在2007年6月22日及2007年7月5日的兩次會面。

The dealings between “Ah Chun” and “Yiu Gor” and Lau and Chu were obviously connected to those between “Ah Chun” and “Yiu Gor” and the Applicant, which took place one after the other.  It was during the above dealings that Lau and Chu alleged that a police officer offered protection on the crime of trafficking in dangerous drugs, and finally Lau and Chu even admitted to having committed the offence as charged.  The police officer referred to by them was obviously the Applicant.  Although the charge against the Applicant was different from that against Lau and Chu, both charges arose from the same undercover operation and involved common background and witnesses.  There were sufficient reasons for the trial judge to exercise his discretion to conduct a joint trial of the charge against the Applicant and that against Lau and Chu.
“阿俊”、“耀哥”和劉、朱的交往明顯和“阿俊”、“耀哥”和申請人的交往有關連，而他們的交往亦是一次接着一次的。劉和朱亦是在上述交往期間曾指有警方人員包庇販毒罪行而最終更承認干犯了他們被控的罪行。他們所指的警方人員亦明顯是申請人。針對申請人的控罪和針對劉、朱的控罪，雖然不同，但都是源自同一卧底行動，亦涉及共通背景及證人。原審法官有充份理由，行使酌情權就針對申請人的控罪和針對劉、朱的控罪共同審理。

Mr. Khattak maintained that during the dealings between Lau and Chu and “Ah Chun”, they had said a lot of things unfavourable to the Applicant.  As the Applicant was unable to properly call Lau and Chu to give evidence for him, it was therefore unfair to the Applicant for him to be tried together with them.
林大律師力稱當劉及朱和“阿俊”交往時曾說過很多對申請人不利的事，而申請人卻不能適當地傳召劉和朱替他作供，因此將劉及朱和申請人同案審理對申請人不公。

Before the commencement of the hearing on the case of the Applicant, Lau and Chu had already pleaded guilty to their charge, the Applicant could have called them to give evidence for him.  As the Applicant elected not to do so, he could not rely on this ground to support his contention that the trial was unfair to him.  In view of the charge to which Lau and Chu had pleaded guilty, it is unrealistic to suggest that the Applicant would have called them to give evidence.
在申請人案情聆訊開始前，劉及朱已經承認了控罪，申請人是可以傳召他們為自己作證。申請人選擇不這樣做，不能以此支持他指審訊對他不公的立場。考慮到劉和朱所承認的控罪，申請人會傳召他們作供的說法是不切實際的。

It cannot be denied that in the absence of the Applicant, Lau and Chu had said something unfavourable about him on various occasions.  But this case was tried by a professional judge alone, not by a jury.  The trial judge could certainly identify which evidence could be given in evidence against the Applicant, and which evidence could not.
無可否認，劉及朱確曾有在申請人不在場時說過一些對申請人不利的話，但本案不涉及陪審團審理，而是由一專業法官單獨審理。原審法官必能分辨甚麼證據可以作為指控申請人的證據，甚麼證據不能。

In fact, the trial judge stated clearly at paragraph 63 of his judgment that the conversations between “Ah Chun” and “Yiu Gor” and Lau and Chu, which took place in the absence of the Applicant, definitely could not be used as evidence against the Applicant.  The same position was taken by the prosecution.  The trial judge stated clearly that no bias would be formed and no adverse inference would be drawn against the Applicant on the basis of what Lau and Chu had said, and that in deciding the charge against the Applicant, he would only take into account the conversations in which the Applicant had participated.
事實上原審法官在其判案書第63段表明申請人不在場時，“阿俊”、“耀哥”和劉、朱的對話絕非用作針對申請人的證據，而控方亦持相同立場。原審法官表明不會因為劉、朱說過的話對申請人有任何偏見或作出對他不利的推斷而他考慮針對申請人的控罪時，只會考慮申請人有份參與的對話。

In deciding whether or not the Applicant was guilty as charged, both the trial court and this Court can only base upon the conversations which took place during the two meetings, on 22 June 2007 and 5 July 2007 respectively, between the Applicant and “Ah Chun” and “Yiu Gor”.  Both “Ah Chun” and “Yiu Gor” were present on both occasions.  They both gave evidence in court and there were audio/video recordings in respect of the course of the events.  Further, no issue was ever taken by the Applicant on the contents of the conversations during the two meetings.
原審法庭及本庭在考慮申請人是否有罪時，只能依據申請人在2007年6月22日及2007年7月5日和“阿俊”及“耀哥”的兩次會面時的對話。兩次會面“阿俊”和“耀哥”都在場，他們有作供而過程亦有錄音/錄影記錄。對該兩次會面的對話內容申請人亦是沒有異議的。

In the above circumstances, we do not see any unfairness in the decision of the trial judge in exercising his discretion to try the Applicant, Lau and Chu together.  There is no basis at all to support this ground of appeal advanced by Mr. Khattak.
在上述情況下，本庭實不能察覺原審法官行使酌情權，將申請人和劉及朱同案審理對申請人有任何不公。林大律師提出這項上訴理由完全是沒有基礎支持的。

Entrapment
誘捕

Before the judgment of R v Sang [1980] AC 402 was given, there were a series of judgments to suggest that the court had a discretion to exclude any evidence relevant to the offence but obtained by unlawful, improper or unfair means.
在R v Sang [1980] AC 402案件作出判決前，有一系列的判決指法庭有酌情權將一些和控罪有關，但是以非法、不恰當或不公平手法取得的證據剔除。

The legal issue involved in Sang is: where the court is satisfied that the offence with which the accused is charged was committed at the instigation of an instigator, and that but for the instigation of the instigator, the accused would not have committed the relevant offence, whether the court should exclude the evidence adduced by the prosecution against the accused and/or grant a stay of the trial.
上述Sang案件所涉及的法律問題是假若法庭信納被告人被控告的罪行是由一名挑撥者引發的而如非該名挑撥者慫恿，被告人不會干犯有關控罪時，法庭應否剔除控方針對被告人的證據及/或將審訊擱置。

The House of Lords took the view that no matter how wide the scope of discretion for excluding any admissible evidence was, the evidence of an offence could not be excluded by reason that it was caused by the instigation of an instigator, because entrapment did not constitute a defence to any offence.
上議院認為不論剔除可接受證據的酌情權的界限多廣，都不能因罪行的證據是由一名挑撥者的慫恿所導致而要剔除，原因是誘捕(entrapment)並非罪行的答辯理由。

In dealing with the above issue, the House of Lords also had to consider whether the court had a discretion to refuse to allow evidence – being evidence other than evidence of admission – to be given in any circumstances in which such evidence was relevant and of more than minimal probative value.
在處理上述議題時，上議院同時要考慮除了招認供詞外，法庭是否有酌情權去剔除一些有關而舉證價值(probative value) 亦非極少的證據。

In Sang, Viscount Dilhorne of the House of Lords had this to say at page 437 of the judgment:
在上述Sang 案，上議院大法官Viscount Dilhorne 在判案書的第437頁有以下評論：

“(1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. (2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as a result of the activities of an agent provocateur.”
“（1）刑事案件的主審法官有酌情權拒絕採納一些他認為偏見效應遠超過其舉證價值的證據。（2）除了招認供詞和其他案發後，由被告人取得之證據外，法官並無酌情權以有關及可採納的證據是以不當或不公平手法取得而拒絕採納該些證據。證據取得的方法和法庭無關。證據是由挑撥者的行為取得，並非行使酌情權剔除的理由。”

Lord Steyn at page 112 of the judgment of R v Latif [1996] 1 WLR 104 made the following observations on whether the court should stay the trial where entrapment was involved in a case:
就案件涉及誘捕時，法庭應否擱置審訊，Lord Steyn法官在R v Latif [1996] 1 WLR 104判案書的112頁有以下評論：

“If the court always refuses to stay such proceedings, the perception will be that the court condones criminal conduct and malpractice by law enforcement agencies.  That would undermine public confidence in the criminal justice system and bring it into disrepute.  On the other hand, if the court were always to stay proceedings in such cases, it would incur the reproach that it is failing to protect the public from serious crime.”
“假若法庭每次都拒絕擱置審訊，會導致一個看法，就是法庭縱容執法機構的非法和瀆職行為，削弱公眾對刑法的信心及破壞其聲譽。另一方面來說，假若法庭在這類案件每次都擱置審訊，公眾會因為法庭沒有保護他們免受嚴重罪行困擾而作出指責”。

Mr. Khattak maintained that the role played by “Ah Chun” and “Yiu Gor” in the present case was identical to that played by the two police officers in Teixeira de Castro, and that it was held by the European Court of Human Rights that the two police officers’ actions had gone beyond those of undercover agents of a law enforcement agency, thereby constituting entrapment.  In Teixeira de Castro, it was concluded by the European Court of Human Rights that the two police officers involved in the case had incited the commission of the offence, and that but for their incitement Mr. Teixeira de Castro would not have committed the offence of trafficking in dangerous drugs at all.  Mr. Khattak argued that but for the pressure persistently and repeatedly imposed by “Ah Chun” and “Yiu Gor”, who first induced Lau and then came into contact with the Applicant through the intermediary of Chu, the Applicant would not have committed the relevant offence at all.
林大律師力稱“阿俊”和“耀哥”在本案所扮演的角色和上述Tei xeira de castro 案的兩名警員相同而歐洲人權法庭裁定該兩名警員的行動超越卧底執法人員所應採用的, 因此構成誘捕。在Tei xeira de castro 案歐洲人權法庭認定涉案的兩名警員煽動罪行, 而若非他們的煽動，Tei xeira de castro 先生根本不會干犯販毒罪行。林大律師指若非“阿俊”和“耀哥”鍥而不捨、屢次施壓，先利誘劉和透過朱接觸到申請人，申請人根本不會干犯有關控罪。

We note that Teixeira de Castro is a case from Portugal.  The two police officers in the case hoped that through a drug addict (VS) they would be able to identify his dangerous drug supplier.  The two officers offered to buy several kilograms of dangerous drugs from VS, and VS agreed (to find a supplier).  However, despite being pressed by the two officers, VS was still unable to locate one.  Subsequently, the two officers went to VS’s home saying that they were now interested in buying heroin.  VS mentioned the name of Teixeira de Castro as being someone who might be able to find some dangerous drug; however, VS could only obtain the address of Teixeira de Castro from another person, FO.  Therefore, the two officers, VS and FO all went to the residence of Teixeira de Castro together.  After Teixeira de Castro, at FO’s request, met up with the two officers and VS, the officers said they wished to buy 20 grams of heroin for 200,000 Euros (sic) and produced a roll of bank notes from the Bank of Portugal.  Teixeira de Castro agreed (to procure the heroin) and went with FO to JPO’s home.  JPO then obtained three sachets of heroin, weighing 20 grams in total, from someone else and handed them over to Teixeira de Castro in exchange for a payment which exceeded 100,000 escudos (currency unit of Portugal and Cape Verde).  Teixeira de Castro took the dangerous drugs to VS’s home.  At that time, VS and the two officers were waiting outside.  Finally, when Teixeira de Castro took out a sachet of dangerous drug, he was arrested by the officers.  During a search of his body, the officers found another two sachets of dangerous drug, 43,000 escudos in cash and a gold bracelet.
本庭注意到Tei xeira de castro 案是源自葡萄牙的案件。案件中的兩名警員希望可以透過一名吸毒者(VS) 得知供應毒品人士的身份。兩名警員向VS表示會購數公斤之毒品而VS表示同意。但雖然在該兩名警員的壓迫下，VS   仍然未能找到供應者。其後，兩名警員前往VS的住所並向他表示有興趣購買海洛英。VS指Tei xeira de castro 可能會找到一些毒品，但他只可以從另一人FO處取得Tei xeira de castro 的住址。結果兩名警員、VS和FO一起前往Tei xeira de castro 的居所。當Tei xeira de castro 應FO之要求和兩名警員及VS會合後，警員表示打算以20萬歐元購買20克海洛英，並同時展示一卷葡國紙幣。Tei xeira de castro 同意並和FO一起前往JPO的居所。結果JPO從另一人處取得三小袋共重20克的海洛英交給Tei xeira de castro 以換取超過10萬埃斯庫多（葡萄牙和佛得角貨幣單位）。Tei xeira de castro 將毒品帶往VS家，而當時VS和兩名警員已在外面等候。最後當Tei xeira de castro 出示一包毒品後遭警員拘捕。警員在其身上搜出另外兩包毒品、43,000埃斯庫多及一金手錬。

The European Court of Human Rights set out the features of Teixeira de Castro, including: (1) the drug-trafficking operation conducted by the police officers had not been ordered or supervised by a judge; (2) there was no reason for the competent authorities to suspect that Teixeira de Castro was a drug trafficker; in fact, he had no criminal record and no preliminary investigation concerning him had been opened; the police officers only came into contact with him through the intermediaries of VS and FO; (3) the dangerous drugs were not obtained from Teixeira de Castro’s home; they were obtained from a third party who had in turn obtained them from another person; (4) Teixeira de Castro did not have more drugs in his possession than the quantity the police officers had requested thereby going beyond what he had been incited to do by the police; (5) there was no evidence to support the argument that Teixeira de Castro was predisposed to commit offences; and (6) Teixeira de Castro had been convicted mainly on the basis of the statements of the two police officers.  The European Court of Human Rights concluded that the two police officers did not confine themselves to investigating Teixeira de Castro’s criminal activity in an essentially passive manner, but exercised an influence such as to incite the commission of the offence.  The European Court of Human Rights took the view that the two police officers’ actions went beyond those of undercover agents, because they instigated the offence and there was nothing to suggest that without their intervention it would have been committed.
歐洲人權法庭列出Tei xeira de castro 案的特點，包括（一）有關警員進行的販毒行動並未經法官授權或在其監控下；（二）有關當局沒有理由懷疑Tei xeira de castro 是一名販毒者，事實上他沒有犯罪記錄，亦未遭任何初步調查。警方是透過VS 和FO才能接觸到他；（三）毒品並非在Tei xeira de castro 家中取得，而是經第三者再從另一人取得；（四）Tei xeira de castro 管有的毒品並未超越警員教唆他取得的份量為多；（五）沒有證據支持Tei xeira de castro 有犯罪傾向；及（六）裁定Tei xeira de castro 有罪全建基在兩名警員的供詞。歐洲人權法庭認定有關的兩名警員調查Tei xeira de castro 的罪行時並非採取消極或被動方法而是控制他人鼓動他犯案。歐洲人權法庭認為涉案兩名警員的行動超越卧底人員所應採納的，原因是他們是煽動罪行的人，而沒有他們的介入，有關罪行不會出現。

In Teixeira de Castro, the police officers violated the regulations by conducting an anti-drug-trafficking operation without an order of and supervision by a judge.  In the course of the operation, after they had come into contact with Teixeira de Castro by oppressive means, with a huge sum of money they further encouraged him to obtain dangerous drugs from another drug trafficker through a third person.
在Tei xeira de castro 案，警員違反規則，在沒有法官授權及監控下進行反販毒行動，而在過程中是以威逼手法接觸到Tei xeira de castro後，再以巨額金錢鼓動他透過他人從另一毒販取得毒品。

In the present case, the investigation conducted by “Ah Chun” and “Yiu Gor” was not in breach of any regulation.  They investigated the Applicant because there were information and reasons for them to believe that a police officer had offered protection on criminal activities.  The crime committed by the Applicant was to offer assistance to people intending to engage themselves in unlawful activities, with his words and conduct forming the primary basis of the offence.  We do not see any oppression, incitement, instigation or encouragement imposed on him to say any incriminating words.  It was not necessary for the Applicant to go to the place which allegedly would be used as the address of the club, nor was there any oppression, incitement, instigation or encouragement in any form imposed by anybody on him to say anything.
在本案，“阿俊”和“耀哥”進行的調查並沒有違反任何規則。他們有資料亦有理由認為有警員包庇犯罪行為而調查申請人。申請人的罪行是向一些正打算進行違法活動的人士提供協助，而構成罪行主要的基礎是他的言行。本庭實不能察覺有任何強迫、煽動、唆使、或鼓動他說出構成犯罪的說話。申請人無需前往指會用作會所的場地，更沒有人以任何形式強迫、煽動、唆使、或鼓動他說任何話。

We do not see any similarity between the present case and Teixeira de Castro.  The conduct of “Ah Chun” and “Yiu Gor” cannot be compared with that of the two police officers in that case.
本庭則看不到本案和Tei xeira de castro 案有任何相類似之處。“阿俊”和“耀哥”的行為根本不能和該案的兩名警員的行為相提並論。

In R v Loosely, it was pointed out by Lord Hutton that in dealing with a case where undercover investigation of offences was involved, it was necessary for the court to balance two competing requirements: (1) those who commit crimes should be convicted and punished; and (2) there should not be an abuse of process which would constitute an affront to the public conscience.  At paragraph 100 of his judgment, Lord Hutton cited the observations made by McHugh J in Ridgeway v The Queen (1995) 184 CLR 19 at page 92 of the judgment:
在R v Loosely 案Lord Hutton大法官指出法庭處理卧底調查罪行的案件時，需要平衡兩個對立的要求：（一）犯罪者理應被定罪及受罰；及（二）不應有濫用程序而導致公憤的情況出現。在其判案書第100段，Lord Hutton大法官援引Mc Hugh J在Ridgeway v The Queen (1995) 184 CLR 19案判案書第92頁的論點：

“I do not think that it is possible to formulate a rule that will cover all cases that arise when an accused person seeks to stay a prosecution on the ground that the offence was induced by or was the result of the conduct of law enforcement authorities. The ultimate question must always be whether the administration of justice will be brought into disrepute because the process (sic) of the Court are being used to prosecute an offence that was artificially created by the misconduct of law enforcement authorities.  That question should be determined after considering four matters: (1) Whether conduct of the law enforcement authorities induced the offence. (2) Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused has been charged. (3) Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose. (4)Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence.”
“本席認為不可能訂下規則覆蓋被告人以罪行是誘使或是由執法機構行為所導致而要求擱置審訊的申請。最終要決定的問題是法庭是否遭利用去檢控由執法機構不當行為所導致的人為罪行而令執行司法蒙羞。決定該問題是應先考慮以下四項因素：（一）罪行是否執法人員所煽動的；（二）如罪行是執法人員煽動的，在提出煽動時，執法人員是否有合理基礎懷疑被告人可能干犯有關罪行或同類罪行或是否忠誠地調查和被告人被控的類似罪行；（三）作出煽動前，被告人是否有意圖有機會出現時干犯有關或同類罪行；及（四）罪行是否是執着的再三要求，恐嚇、詐騙和一些和有關罪行或同類罪行無關的報酬或誘使所導致的。”

Lord Hutton particularly pointed out at paragraph 101 of the judgment that:
Lord Hutton 大法官特別指出（判案書第101段）：

“In balancing the relevant factors the English courts have placed particular emphasis on the need to consider whether a person has been persuaded or pressurised by a law enforcement officer into committing a crime which he would not otherwise have committed, or whether the officer did not go beyond giving the person an opportunity to break the law, when he would have behaved in the same way if some other person had offered him the opportunity to commit a similar crime, and when he freely took advantage of the opportunity presented to him by the officer.”
“在平衡有關因素時，英國法院特別着重考慮是否有人遭執法人員說服或強迫去干犯一宗他不應會干犯的罪行，或執法人員是否沒有超越給予該人犯罪的機會，而同一犯罪機會由他人提供時，該人是否會作出同一反應，即按執法人員給予他的機會而自由行事。”

Although Mr. Khattak repeatedly emphasized that there was no basis for the ICAC to investigate into the case where a police officer was alleged to have provided protection on criminal activities, we do not agree with his argument.  From the dealings and conversations between “Ah Chun” and “Yiu Gor” and Lau and Chu, there were sufficient reasons for the ICAC to believe that someone provided protection on criminal activities.  As the Applicant was the police officer concerned, definitely there were reasons for the ICAC to investigate the suspected offence or offences, contrary to the argument put forward by Mr. Khattak that the investigation should have been stopped two months odd after its commencement.  Although the investigation made initially by the ICAC was about a police officer offering protection on the crime of trafficking in dangerous drugs, and the Applicant was eventually prosecuted for and convicted of the offence of misconduct in public office, as both offences by nature are about a police officer providing assistance to criminal elements, they are offences of the same kind.  The Applicant, together with Lau and Chu, met with “Ah Chun” and “Yiu Gor” twice.  In the absence of any reasonable explanation, this can be inferred as his having the intention to assist the criminal elements.  Given his capacity of a police officer, if he had no intention to assist the criminal elements, we do not see any reason why he would have attended those meetings, in particular the second meeting which took place at the chosen address of the unlawful club.
雖然林大律師重複強調廉署沒有基礎調查警員包庇罪行的案件，但本庭不同意他的說法。由“阿俊”和“耀哥”和劉及朱的交往及對話，廉署有足夠理由相信確有人包庇罪行，而申請人就是有關警員，廉署絕對有理由就其懷疑的罪行進行調查，而非林大律師所指在調查後兩個多月便應停止。雖然廉署起初是調查警員包庇販毒罪行，而申請人最終被檢控和被定罪的是公職人員行為不檢罪，但兩種罪行的性質都是警員向犯罪份子提供協助，故屬同類罪行。申請人兩次和劉、朱與“阿俊”和“耀哥”會面，在沒有合理解釋時可被推斷為他有意圖協助犯罪份子。假若他沒有意圖協助犯罪份子，以他警員身份，本庭實看不出他為何會出席有關會面，特別是在非法會所選址的第二次會面。

There was no evidence to show that when “Ah Chun” and “Yiu Gor” met the Applicant, they had done any act by way of persuasion and inducement, encouragement, instigation, or compulsion to the Applicant in order to induce the Applicant to say anything to assist the criminal elements intending to set up an unlawful club.
沒有證據顯示“阿俊”、“耀哥”和申請人會面時，有作出過任何勸誘、鼓勵、鼓動、強迫等行為以誘使申請人說出協助犯罪份子打算開設非法會所的話。

During the trial, it was mentioned that “Ah Chun” and “Yiu Gor”, through Chu, advised the Applicant to provide protection to the club and in so doing he could obtain indirectly some shares of the club as his reward. This might be a cause of inducement to him.  First of all, we must point out that the Applicant did not adduce any evidence to show that he had knowledge of the above suggestion, and thus he could not claim that he had been influenced by that cause of inducement.  In any event, even if the said cause of inducement did exist, such cause was not a reward unrelated to the offence in the present case or similar offences.  As pointed out by Chu in one of the telephone conversations, a police officer would not, without any reason, do any act to assist a criminal, and when a police officer did any act to assist a criminal, he must be expecting to obtain a reward.
聆訊過程中，有提及“阿俊”和“耀哥”透過朱向申請人建議他包庇會所會間接得到會所的股份為報酬，可能對他做成誘因 。本庭首先指出，申請人沒有提出證據顯示他知悉上述建議，因此他不能指有受該誘因影響。無論如何，即使確有該誘因，該誘因亦非和本案罪行或同類罪行無關的報酬。誠如朱在其中一次通話中指出，警員不會無故作出任何協助罪犯的行為，如警員作出任何協助罪犯的行為，他必然冀望會取得報酬。

Having considered the detailed submission made by Mr. Khattak, we do not agree that the present case involved any act of entrapment.  It was both right and necessary for the ICAC officers to conduct the investigation.
本庭已經考慮過林大律師的仔細陳述，本庭不同意本案涉及任何誘捕行為，廉署人員進行的調查工作，不但正確，亦是有需要的。

Further, the Court of Appeal of Hong Kong has made detailed analysis on the legal issues arising from entrapment in HKSAR v Wong Kwok Hung [2007] 2 HKLRD 621.  The Court of Appeal agreed that even if the trial of the accused could be conducted fairly, a trial judge had jurisdiction to stay proceedings in a criminal trial on the basis that a defendant was subjected to entrapment by the law enforcement agency.  However, before staying the proceedings, the court would have to be satisfied that if the trial were to continue, it would be an abuse of process which amounted to an affront to the public conscience with severe consequences for public confidence in the administration of justice.
再者，香港上訴法庭在HKSAR v Wong Kwok Hung [2007] 2 HKLRD 621案就誘捕所帶出的法律問題有詳細的分析。 上訴法庭同意即使被告人能得到公平審訊，但法庭有權因被告人遭執法機構誘捕而將審訊擱置。但作出擱置前，法庭需信納審訊是濫用司法程序而嚴重程度更是對公眾良知的公然侮辱，及公眾對執行公義的信心蕩然無存。

The Court of Appeal pointed out that the factors to be considered by the court included the “Opportunity Test” and a balancing exercise between the nature and seriousness of the offence and the conduct of the law enforcement agency in order to achieve reasonable proportionality.
上訴法庭指出法庭需考慮的因素包括“犯罪機會測試” (Opportunity test) 及將罪行的性質及嚴重程度和執法機構行為相比，以達到合理比重。

The Court of Appeal clearly pointed out that if the accused had already had the intent to commit an offence and the law enforcement agency did no more than provide the defendant with an unexceptional opportunity to commit the offence, then the “entrapment” allegation might not stand.  The Court of Appeal further stressed that where serious offences were of a sort normally carried out in secrecy and were difficult to detect, then a more pro-active role on the part of the law enforcement agency was both necessary and excusable.
上訴法庭明確指出假若被告人已抱有犯罪的意圖而執法機構只是向他提供一個正常機會去干犯罪行，則“誘 捕”的指稱不一定成立。上訴法庭更強調當嚴重罪行是秘密行事，故難於偵察，則執法機構扮演較主動角色是有需要的，亦是值得原諒的。

In considering the question of “proportionality”, it was necessary for the court to determine whether the law enforcement agency’s activities and behaviour remained within acceptable bounds or went too far.  Even if the law enforcement agency’s activities and behaviour went beyond what was reasonable or necessary, the court must be satisfied that the investigator’s role in the defendant’s commission of any offence was an affront to the public conscience before making an order to stay the proceedings.
考慮“比重”時，法庭要決定執法機構的活動和行為是否屬可接受範圍內或是太過份，即使執法機構的活動和行為太過份，法庭作出擱置命令前，亦必先要信納查案者在被告人犯罪的過程中所扮演的角色是對公眾良知的公然侮辱。

In our view, the decision in Wong Kwok Hing on the relevant issues has provided very useful guidance.  We cannot ignore that the use of undercover operations is an essential weapon in the armoury of the law enforcement agencies to investigate unlawful activities, and the use of undercover operations plays an important part in combating serious crime, including corruption offences (see the judgment of Secretary for Justice v Lam Tat-ming (2000) 3 HKCFAR 168 at paragraphs 180J-181A).
本庭認為Wong Kwok Hung 案的判決在有關議題上是極具指導性的。本庭不能忽視卧底行動是執法人員調查非法活動的重要武器之一，而對嚴重罪行，包括貪污罪行更是不可或缺的（見Secretary for Justice v Lam Tat-ming (2000)3 HKCFAR 168案判案書第180J-181A段）。

The background of the present case shows that the ICAC commenced the undercover operation after they have been informed that a police officer might have offered protection on criminal activities.  The undercover agents asked to meet the Applicant only after Lau and Chu had expressed that the Applicant could provide assistance in relation to the operation of the unlawful club.  When the Applicant showed up at Victoria City Seafood Restaurant on 22 June 2007, he met “Ah Chun” and “Yiu Gor” for the first time.  After the Applicant came to know that the unlawful club would involve the supply of dangerous drugs and “prostitutes from the Mainland”, he took the initiative to give advice, and when “Ah Chun” and “Yiu Gor” echoed what he had said, the Applicant further gave some more advice.
本案的背景顯示廉署知悉可能有警員包庇罪犯後展開卧底行動。當劉、朱表示申請人能就非法會所的經營提供協助後，卧底人員才要求和申請人會面。當申請人在2007年6月22日在海都酒家出現時，他是首次和“阿俊”、“耀哥”見面。申請人知悉非法會所會供應毒品和“北姑”後，主動提出意見，而“阿俊”和“耀哥”順勢附和，令申請人提供更多的意見。

Subsequently, after the meeting on 22 June 2007, the Applicant became the major target of the investigation and it was necessary to carry on the undercover operation.  On 5 July 2007, accompanied by Lau, the Applicant even went with “Ah Chun” and “Yiu Gor” to attend a site visit at a place which he fully knew would be used as the address of the unlawful club.  Meanwhile, the Applicant not only failed to discharge his duties as a police officer, he also gave some “expert” advice to “Ah Chun” and “Yiu Gor” on a number of occasions, for the purpose of helping them evade more effectively the consequence and criminal responsibility that their criminal acts would bring about.
結果在2007年6月22日的會面後，申請人已成為主要調查目標而卧底行動亦有必要繼續進行。2007年7月5日，申請人更在劉的陪同下和“阿俊”及“耀哥”去視察他明知會用作非法會所的地點。其間申請人不但沒有履行其身為警員的職務，更多番向“阿俊”及“耀哥”提供一些“專業”意見，目的令他們能更有效地逃避其犯罪行為會導致的後果及刑責。

Mr. Khattak stressed that after the first meeting, Lau had called “Ah Chun”, saying that he had made some inappropriate remarks during the first meeting, thereby causing embarrassment to the Applicant.  Mr. Khattak’s argument is that the above incident shows that the Applicant was not happy with the questions raised by “Ah Chun”.  According to the contents of the telephone conversations between Lau and “Ah Chun”, the Applicant was unhappy simply because he thought the way in which “Ah Chun” had said about it was too obvious, not because he disagreed with the questions raised by “Ah Chun”.  Lau said the Applicant could say anything privately, but as that was just the first time that he had ever met “Ah Chun” and “Yiu Gor”, he would appear to be “evasive”.  Lau even said, “… As Wah Gor put it, in fact, if you operate it in this way, certainly there wouldn’t be any problem.  But who dare to guarantee, I mean, do you understand?  Others can’t tell you that, how could (others) answer you (?)  Even if it’s really like that, (others) still can’t answer you by saying ‘yes’…. If you have audio-taped what he had said, that would mean he’s done for, isn’t it (?)”
林大律師強調在第一次會面後，劉曾經致電“阿俊”，指他在首次會面時作出不當言辭，令申請人尷尬。林大律師的立場是上述事件顯示申請人對“阿俊”提出的問題感到反感。根據劉和“阿俊”的通話內容，申請人表示反感並非他不同意“阿俊”提出的問題，他只是不滿“阿俊”的說法太明顯。劉指申請人私下可以甚麼都說，但他和“阿俊”及“耀哥”只是第一次見面，會有“避忌”。劉甚至說 “…華哥話齌其實你咁樣開就一定無問題喇，但邊個咁擔保你啫。即係你明唔明呀？人哋唔可以話俾你聽，點答你啫。就算真係都唔可以答你係啦，…你錄左佢音佢咪釘得。”

Mr. Khattak said the Applicant was not happy with the way in which “Ah Chun” had put it.  It was not the substance of what “Ah Chun” had said that upset the Applicant, rather, it was the way in which “Ah Chun” had expressed it, because he (the Applicant) had misgivings.  This certainly cannot support the Applicant’s ground of appeal.
林大律師指申請人對“阿俊”的說法感到反感。申請人所表示的反感並非“阿俊”說話的實質，而只是他表達的方法，因為他有顧忌。這點絕對不能支持申請人的上訴理由。

Although the motive of the Applicant was unknown, it was obvious that he intentionally and willingly took the initiative to provide some information obtained by him in the capacity of a police officer to some people known to him as “criminal elements”, for the purpose of helping them evade or reduce the possibility of their being arrested by law enforcement agencies for their crimes.  During the two meetings with the Applicant, “Ah Chun” and “Yiu Gor” merely provided him with an opportunity to commit crime.  In the course of the events, “Ah Chun” and “Yiu Gor” played an active role which caused the Applicant to further express his “advice”.  What was done by “Ah Chun” and “Yiu Gor” was both necessary and reasonable, or, at least, excusable.
雖然申請人的動機不明，但他明顯是故意及樂意並主動向一些他知悉是“犯罪份子”提供一些以他警員身份獲得之資料，目的是令他們的犯罪行為能避免或減低執法機關的緝捕行動。“阿俊”和“耀哥”在兩次和申請人會面時只不過是向他提供一個犯罪機會。在過程中“阿俊”和“耀哥”曾採取主動角色令申請人進一步表達其“意見”。“阿俊”和“耀哥”的行為是有需要的，亦是合理或至小是值得原諒的。

In the opinion of the trial judge, “… even if members of the public hold a different view in respect of the sincerity, investigation conduct and means of “Ah Chun” and “Yiu Gor”, members of the public would never think that their approach is so repulsive that it amounts to an affront to the public conscience.  In the course of bringing prosecution against Lau, Chu and the Applicant, the prosecution has not abused any judicial process or brought disrepute to the administration of justice.  The continuation of the trial did not bring injustice to any of the defendants.  Lau, Chu and the Applicant were unable to prove on the balance of probabilities that their trial should be terminated.”  The ruling of the trial judge was a correct and reasonable one, with which we agree.
原審法官認為“公眾就算對“阿俊”和“耀哥”的真誠、調查行為及手法存有不同的意見，總不會覺得他們的做法令人反感而引起公憤。而在檢控劉、朱及申請人的事項中，控方都沒有濫用司法程序，也沒有令司法陷入不明譽之中，繼續審訊對各被告並非不公平。劉、朱及申請人未能在相對可能性的標準下證明關於他們的審訊應被終止”。原審法官的裁決正確、合理。本庭認同。

The Applicant’s words and conduct during the two meetings were not confessions made as the result of some undercover operation after the commission of crime.  Before the meetings, there was no evidence to show that the Applicant had committed any crime.  In fact, it was during the two meetings that the Applicant said those incriminating words and did those incriminating acts.  The undercover agents merely provided an opportunity to the Applicant to commit an offence, rather than taking a statement of confession from him to support an offence which he had already committed.  In any event, having considered the audio recordings of the two meetings, we do not agree that “Ah Chun” and “Yiu Gor” did take the initiative to obtain information from the Applicant and that their conversations should be regarded as interrogation.
申請人在兩次會面時的言行，並非是干犯罪行後，透過一些卧底行動而作出的招認。會面前，沒有證據顯示申請人已犯了罪。事實上，申請人是在兩次會面中才作出構成罪行的言行。卧底人員只是向申請人提供犯罪的機會，而非向他取得招認供詞，用以支持他已犯的罪行。無論如何，考慮過兩次會面的錄音記錄後，本庭不同意“阿俊”和“耀哥”有主動地向申請人索取資料而他們的對話應被視為審問(interrogation)。

Further, during the two meetings, so far as the Applicant was concerned, “Ah Chun” and “Yiu Gor” were merely two persons intending to operate an unlawful club.  There was no relationship of trust between the two parties.  In the presence of “Ah Chun” and “Yiu Gor”, the Applicant was not in a vulnerable position, nor did he feel that he was obliged to say those improper words and do those improper acts.  “Ah Chun” and “Yiu Gor” were also unable to manipulate the Applicant and to induce him to say anything which he should not have said.
再者, 兩次會面時, 對申請人而言，“阿俊”和“耀哥”只是兩名打算營辦非法會所的人士。雙方並沒有信賴(Trust) 關係，而申請人面對“阿俊”及“耀哥”時地位並非脆弱，亦不會覺得有責任作出有關不當言行。“阿俊”和“耀哥”亦沒有能力操控申請人，誘使他說出一些他不應會說出的話。

In fact, according to the audio recordings, when the Applicant was expressing his views to “Ah Chun” and “Yiu Gor”, he was very pro-active, willing and enthusiastic.  There is no reasonable basis to support Mr. Khattak’s suggestion that the Applicant had been deprived of his right of silence.
事實上，根據錄音記錄，申請人向“阿俊”和“耀哥”表達意見時，他是極為主動、樂意及熱誠的。林大律師指申請人保持諴默的權利遭剝奪的說法，並無合理基礎支持。

When “Ah Chun” and “Yiu Gor” met the Applicant, they were investigating whether or not Lau and Chu had offered advantages to a police officer.  From the information obtained by their investigation, in particular the words and conduct of Lau and Chu, there were definitely sufficient reasons for “Ah Chun” and “Yiu Gor” to suspect that the Applicant might have committed an offence of having unlawfully accepted advantages or that his misconduct might be directly or indirectly resulted from a bribery offence.
“阿俊”、“耀哥”和申請人會面時，正在調查劉及朱是否有向警務人員提供利益。從他們調查所得的資料，特別是劉及朱作出的言行，“阿俊”和“耀哥”絕對有足夠理由懷疑申請人涉嫌干犯了非法收受利益罪，或其不當行為是直接或間接因賄賂罪行而引致的。

Section 10(2) of the Independent Commission Against Corruption Ordinance provides that where, during an investigation by the Commission of a (suspected) offence under the Prevention of Bribery Ordinance, another offence is disclosed, any such officer may without warrant arrest a person if he reasonably suspects that such person is guilty of that other offence and he reasonably suspects that such other offence was connected with, or that either directly or indirectly its commission was facilitated by, the suspected offence under the Prevention of Bribery Ordinance.
《廉政公署條例》第10(2)列明廉政公署在調查一宗《防止賄賂條例》所訂罪行時，如揭發另一項罪行，則任何該等廉署人員如合理地懷疑某人已犯該另一項罪行，以及他合理地懷疑該另一項罪行與涉嫌犯《防止賄賂條例》所訂罪行有關連、或是直接或間接因涉嫌犯《防止賄賂條例》所訂罪行而引致，可無需手令而將該人逮捕。

During the investigation by the ICAC of the Applicant on whether he had committed an offence of accepting an advantage, it was disclosed that the Applicant had committed the offence of misconduct in public office.  The ICAC was perfectly entitled to make investigation and arrest the Applicant for that offence.
廉署在調查申請人是否犯了非法收受利益罪的過程，揭發申請人干犯了藉公職作出不當行為罪。廉署絕對有權作出調查及以該罪名拘捕申請人。

It was suggested by Mr. Khattak that the ICAC, in defiance of the law, conducted the investigations at all costs while knowing full well that the case under investigation was not connected to “corruption”, and that this not only has violated the ICAC Ordinance, but was also an abuse of process.  This is an unfounded allegation and there is no basis at all to support it.
林大律師指廉署有法不依，明知調查案件與“貪污”無關，卻仍然不顧一切進行調查，不但違反廉署條例，更是濫用程序的說法屬無的放矢，全無基礎支持。

We do not quite understand the allegation advanced by Mr. Khattak that the admission of the contents of the audio recordings in support of the offence has violated the freedom of speech.  Under the Basic Law and the Bill of Rights, Hong Kong residents are entitled to freedom of speech.  Freedom of speech, however, like any other rights, is not completely unrestricted.  In the present case, the matter which had to be dealt with was the incriminating words.  No matter how leniently the matter is to be dealt with, freedom of speech will never cover any incriminating words.
本庭不大理解林大律師所指採納支持控罪的錄音內容違反了言論自由，根據《基本法》和《人權法案》本港居民都享有言論自由，但言論自由和其他自由一樣，並非是全無限制的。本案要處理的是構成刑事罪行的言論，不論以如何寬大的處理方法，言論自由都不包括構成罪行的言論。

In our view, the decisions by the trial judge to refuse to make an order to stay the trial and to refuse to exclude the evidence relating to the two meetings were correct and reasonable.
本庭認為原審法官拒絕作出擱置審訊的命令及拒絕將兩次會面的證據剔除是正確合理的決定。

Whether the Applicant’s words and conduct amounted to misconduct
申請人的言行是否構成不當行為

According to the Police Force Ordinance, as a member of the Police Force, the Applicant shall be deemed to be always on duty (section 21), and his duties shall be to take lawful measures for:
根據《警隊條例》，作為警隊的一份子，申請人須當作為一直在當值中（第21條），而其職責是採取合法措施以：

Preserving the public peace;
維持公安；

Preventing and detecting crimes and offences. (section 10)
防止刑事罪及犯法行為的發生和偵查刑事罪及犯法行為。（第10條）

After the Applicant came to know that “Ah Chun” and “Yiu Gor” had rented and renovated a property for setting up a club which would involve offences such as supplying dangerous drugs and “prostitutes from the Mainland”, he went so far as to give them advice, including advice relating to actions which the police would take against establishments of the same kind, how to enable the club to evade or reduce the difficulties arising from the unlawful businesses, and how to make adjustments to the renovation and facilities of the club, in order to avoid as much as possible the criminal dealings carried out in the club being disclosed.  In his written submission, Mr. Khattak had carefully analyzed the words uttered by the Applicant during the two meetings.  Mr. Khattak stressed that what the Applicant had said was only his understanding of the law, and should not be regarded as advice.  Mr. Khattak submitted that the Applicant’s words and acts did not amount to serious misconduct.  We do not intend to make an excessively detailed analysis of the Applicant’s words and conduct during the two meetings.  The key point is that while the Applicant knew full well that “Ah Chun” and “Yiu Gor” intended to be engaged in some unlawful businesses, he still met with “Ah Chun” and “Yiu Gor” twice through the arrangement of (a) suspicious person.  As an experienced police officer, the Applicant must have tried his best, in the course of saying those improper words and doing those improper acts, to cover up and tone down their seriousness.  There was only one purpose for the Applicant to meet “Ah Chun” and “Yiu Gor” – that is, to assist them in their conduct which the Applicant fully knew to be unlawful.  Mr. Khattak’s suggestion that the misconduct of the Applicant was not serious is entirely unconvincing.
申請人在知悉“阿俊”和“耀哥”租用及裝修物業開設會所並會在會所內供應毒品和“北姑”等犯罪行為後，竟然向他們提供意見，包括警方對該類場所採取的行動、如何令會所逃避或減輕因違法業務會面對的困難、如何就會所的裝修及設施作出調較，盡量避免會所進行的犯罪勾當曝光。林大律師在其書面陳述，有極仔細分析申請人在兩次會面時的說話。他強調申請人只是說出他對法律的一些認知，不算是意見。他指申請人的言行並非嚴重不當。本庭不打算將申請人在兩次會面時的言行作出太詳細分析。重點是申請人明知“阿俊”和“耀哥”打算從事一些非法業務，他仍然透過可疑人物，先後兩次和“阿俊”及“耀哥”會面。申請人是資深警務人員，亦必然會在作出不當言行過程中，盡量作出掩飾及淡化該些不當言行的嚴重性。但申請人和“阿俊”及“耀哥”會面，目的是有一個，就是協助他們進行一些申請人明知是違法的行為。林大律師指申請人的不當行為並非嚴重的說法完全沒有說服力。

The conduct of the Applicant not only has violated his duties as a police officer, but would also, as ruled by the trial judge, harm the social ethics, assist the growth of crimes and harm public order.  The assistance provided by the Applicant to the criminal elements would facilitate them in committing crimes more easily and would make it more difficult for the police to crack those crimes, and certainly would also bring disrepute to the Police Force.
申請人的行為不但違反其身為警務人員的職責，更如原審法官所裁定，會傷及社會風化、助長罪惡、損害公共秩序。申請人向犯罪份子提供協助，令他們的罪行更容易得逞及難於偵破，亦必然會令警隊蒙羞。

When the Applicant gave advice to “Ah Chun” and “Yiu Gor”, he expressed that he would not participate in the operation of the club, or accept any advantage, or tip them off in advance; instead, he would only give advice as a friend.  This would not reduce the seriousness of his conduct.
申請人向“阿俊”和“耀哥”提供意見時表示不會參與會所的經營，不會收取利益，也不會向對方預早通風報信，而只是以朋友身份提供竟見，並不會減低其行為的嚴重性。

Of course, if the Applicant had really participated in the operation of an unlawful club, had accepted advantages and had given prior warning of the police’s impending action to them, he would have faced more serious allegations.
當然假若申請人真的參與不法會所的經營、收取利益及向對方預報警隊的行動，他會面對更為嚴重的指控。

We do not agree with Mr. Khattak’s suggestion that the Applicant’s words and conduct during the two meetings did not match with the elements of the relevant offence.  We also do not agree with Mr. Khattak’s suggestion that the trial judge had failed to give proper weight to the exculpatory parts of the Applicant’s words and conduct.  There was no evidence whatsoever to show that the Applicant had any reasonable excuse or explanation for giving those advice and information to “Ah Chun” and “Yiu Gor” during the two meetings.  Nor was the Applicant’s ignorance of law and his thinking that it was not against the law if he did not accept any reward, a reasonable excuse capable of explaining away his misconduct which definitely was inconsistent with his capacity as a police officer.
本庭不同意林大律師指申請人在兩次會面的言行不符合有關控罪的元素。本庭亦不同意他指原審法官沒有將申請人的言行脫罪部份給予應得的比重。根本沒有任何證據顯示申請人有任何合理辯解或理由在兩次會面向“阿俊”和“耀哥”提供該些意見及資料。申請人不懂法律，以為不收取報酬就非犯法亦絕非合理辯解，令其能洗脫一些和他警員身份絕不相符的不當行為。

We agree with the analysis of the trial judge.  The Applicant’s words and conduct have squarely matched with the five essential elements of the offence of misconduct in public office.
本庭同意原審法官的分析。申請人的言行完全符合藉公職作出不檢行為所需的五項犯罪要素。

Conclusion
結論

The decision to convict the Applicant of the above offence is absolutely a correct and reasonable one.  It is neither unsafe nor unsatisfactory.  The Applicant’s application for leave to appeal against conviction is dismissed.
裁定申請人上述罪名成立絕對是正確合理的裁決，並沒有任何不穩妥之處。本庭不批准申請人就定罪上訴。

Mr. S. K. Khattak and Mr. Roy Yip instructed by Wong & Co. for the Applicant
申請人：由黃律師事務所轉聘大律師林沙文及大律師葉榮燊代表。

Mr. Alex Lee, Senior Assistant Director of Public Prosecutions, for the Respondent
答辯人：由律政司高級助理刑事檢控專員李運騰代表。